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DIGEST 
 
 OF THE ( ' i 
 
 AMERICAN LAW REGISTER : 
 
 COMPRISING 
 
 ALL THE LEADING ARTICLES ; DECISIONS REPORTED IN FULL ; 
 
 EDITORIAL ANNOTATIONS AND COMMENTS ; ABSTRACTS 
 
 AND SYLLABI OF DECISIONS ; NOTES UPON CURRENT 
 
 LUGAL TOPICS; AND OTHER MISCELLANEOUS 
 
 MATTERS CONTAINED IN THE 
 
 9 VOLS. OF THE OLD SERIES & VOLS. I. TO XIV. NEW SERIES, INCLUSIVE. 
 
 TABLES OF THE CASES REPORTED IN FULL AND IN ABSTRACTS 
 
 AND REFERENCES TO THE STATE OR OTHER REPORTS 
 
 IN WHICH THEY ARE ALSO REPORTED. 
 
 By benjamin H. HAINES, 
 
 OF TE£ PHIUSELPHU BAE. 
 
 PHILADELPHIA: 
 D. B. CAN FIELD & Co., 
 
 No, 229 South Sixth Street. 
 
 1877. 
 
Shtesed, according to Act of Congress, in the year 1877, by, 
 
 D. B. CAl^FIELD&C 0., 
 
 Id the Office- of the Librarian of Congress at TVashington. 
 
 B. M. DTISENBEEY, 
 STEEEOTYPBB 4 ELECTEOTYPEH. 
 
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 705 JAYNE STREET. 
 
TABLE 
 
 LEADING ARTICLES, ESSAYS, AND EDITOEIAL MISCELLANIES IN 
 THE TWENTY-THREE VOLUMES DIGESTED IN THIS "WORK. 
 
 Absentees, Actions against. N. S. vi. 1. 
 Abstract of Title, au. N. S. xiv. 529. 
 Accident Insurance (miscellany). N. S. 
 
 viii. 57. 
 Accord and Satisfaction. N. S. iii. 65. 
 Actions for Breach of Promise of Mar- 
 riage. N. S. xi. 65. 
 Forms of. N. S. iii. 705. 
 Against Non-reBidentsi,and Absent- 
 ees. N. S. vi. 1. 
 Acts or Omissions, Responsibility for Re- 
 mote Consequences of. N.S.xiii.l4. 
 Of the Legislature, presumption as 
 to their validity. N. S. xiii. 248. 
 Of Congress, recent. N. S. xii. 315. 
 Administration of Justice. N. S. vii. 193. 
 
 Of Law in Liberia. N. S. v. 65. 
 Admiralty, on the Evidence Receivable 
 in the Courts of. O. S. ii. 65. 
 Forfeiture of Seamen's Wages, for 
 Disobedience (miscellany). N. S. 
 viii. 181. 
 Collision on the High Seas, between 
 Sailing Vessels and Steamer. N. 
 8. viii. 627. 
 Jurisdiction not Limited to Tide- 
 Water (legal notes). O. S. i. 58. 
 Damages to Seamen for Neglect 
 
 while Sick. N. S. viii. 628. 
 Maritime Liens. N. S. xiv. 593. 
 Adultery, Crime of. N. S. viL 769. 
 Advances to be Secured by Mortgage. 
 
 N. S. ii. 1. 
 Agency, Special. N. S. ziii. 657. 
 Agent of known Principal, Liability of. 
 O. S. V. 325. 
 Taking Profits onPrincipal's Money. 
 N. S. viii. 375. 
 Air, Prescriptive Right of Owner of 
 
 Windmill to. N. S. i. 637. 
 Alabama, the Case of the (legal mis- 
 cellany). N. S. ii. 689. 
 Alienation of State Property during the 
 War. N. S. viii. 371. 
 And Enjoyment of Estates, Restraint 
 upon. N. S. ix. 393, 457, 521. 
 Allegiance, the Doctrine of Natural. N. 
 S. zii, 65. 
 
 Allison, Hon. Joseph, Charge of, in 
 
 Smith's Case. O. S. vi. 257. 
 Ambiguities in Written Instruments. N. 
 
 S. V. 140. 
 Amendments to the Bankrupt Act, Sug- 
 gestions of. N. S. xii. 737. 
 American Lawyer in England. N. S. vi. 
 449. 
 Legislation, Bankrupt Law, Com- 
 pliment to. N. S. vii. 330. 
 Institutions, English Ignorance of. 
 
 N. S. iv. 12. 
 Heirs to English Estates. N. S.viii. 
 374. 
 Amnesty, Prefddent's Power to Grant 
 
 General. N. S. viii. 513, 577. 
 Ancient Commonwealth. N. S. xi. 465. 
 
 Lights; N. S. ii. 522. 
 Animals, Injuries by. O. S. vii. 655. 
 Anthon, John (legal miscellany). N. S. 
 
 ii.500. 
 Appellate Jurisdiction of the Federal 
 
 Court. O. S. iv. 129. 
 Application of Payments. N.S. v. 193,257. 
 Are Juries Judges of the Law as well as 
 Facts, in Criminal Cases. N. S. 
 xi. 401. 
 Assignment of Dower under Mistake of 
 Fact. N. S. X. 609. 
 Of Profits of a Public Officer (mis- 
 cellany). N. S. viii. 178. 
 Assignments of Future Acquisitions. N. 
 S. ii. 527. 
 Voluntary. O. S. i. 385. 
 Attorney and Client. N. S. v. 385. 
 Disbarred. N. S. viii. 375. 
 General of the United States, Office 
 
 and Duties of O. S. v. 65. 
 Striking from the Roll (legal notes). 
 
 N. S. viii. 58. 
 In Producing Documents, Privilege 
 of. O. S. i. 517. 
 Authority of Counsel (legal miscellany). 
 N. S. ii. 689. 
 
 Bailment, Contracts of. N. S. iii. 65. 
 Bankrupt Act, Suggestions of Amend- 
 ments to the. N. S. xii. 737. 
 
TABLE OF LEADING AETICLES, ETC. 
 
 Bankrupt Act, Constitutionality of. N. 
 S. vi. 721. 
 Exemption Clause. N. S. vii. 55,180. 
 Compliment to American Legisla- 
 tion. N. S. vii. 330. 
 Law, Expediency of. N. S. iv. 449. 
 Early Bankrupt Law. N. S. iv. 581. 
 
 Bankruptcy, Jurisdiction of Circuit and 
 District Courts in. N. S. vii. 641. 
 
 Bankrupts, Married Women as. N. S. 
 xiii. 129. 
 
 Bar Association of Chicago. N. S. xiii. 
 584. 
 
 Belligerents' Ships, Title to. Neutrals. O. 
 S. V. 94. 
 
 Berryer, M., Discourse of. Eulogium on 
 the French Bar (legal notes). O. 
 S. i. 251. 
 
 Bills and Notes, Partnership. N. S. xi. 
 537. 
 
 Blackwell, Hon. Eobert S. (legal miscel- 
 lany). N.S. ii. 501. 
 
 Bond for Goods Seized under Eevenue 
 Acts (miscellany). N. S. viii. 181. 
 
 Bradley, the Case of Mr., and the Su- 
 preme Court. N. S. viii. 129, 305. 
 
 Bridges, State. O. S. iii. 1. 
 
 Burden of Proof in Cases of Insanity. 
 N. S. ix. 201, 329. 
 
 Capital Cases, Hints in. N. S. iii. 561. 
 
 Carriers, Liability of, for Articles Con- 
 veyed by them (legal notes). O. 
 S. i. 55. 
 By Water. N. S. viii. 641. 
 
 Case of Scott v. Sandford, An Examina- 
 tion of the. O. S. vii. 322, 393. 
 
 Causes, Eemoval from State to Federal 
 Courts. N. S. ix. 1. 
 
 Chancery Jurisdiction. O. S. i. 449. 
 
 Charge by Ch. J. Shepley. O. S. i. 212. 
 By Judge Allison in Smith's Case. 
 O. S.vi. 257. 
 
 Charitable Uses, Jurisdiction of Chan- 
 cery to Enforce. N. S. i. 129, 321, 
 385, 449. 
 
 Checks, Payable on a Particular Day, 
 Assimilated to Bills of Exchange 
 and Entitled to Days of Grace 
 (legal notes). O. S. i. 503. 
 
 Chemung, Opinion of the Attorney-Gen- 
 eral as to the Eiver. O. S. iv. 385. 
 
 Chief Justices of the United States, 
 Flander's Lives of the. O. S. iii. 
 592. 
 
 Chinamen, Evidence of, in Criminal 
 Cases (miscellany). N. S. viii. 
 178. 
 
 Choate, Eufus. N. S. ii. 321. 
 
 Christianity as a Constitutional Eequire- 
 ment. N. S. xiii. 585. 
 
 Church Corporations and Eeligious So- 
 cieties. N. S. xiii. 65. 
 Law of. N. S. xii. 201, 329, 537. 
 
 Church Property, Jurisdiction of Civil 
 
 Courts. N. S. xiii. 585. 
 Circuit, my EecoUections of the. O. S. 
 
 ix. 257. 
 Civil and Common Law, Eelation of. 
 N. S. xii. 673. 
 Jurisdiction over Soldiers. N. S. 
 
 xiii. 583. 
 Law, the Study of. N. S. ii. 385. 
 Eights Bill, Effect of, in Criminal 
 Cases (miscellany). N. S. viii. 
 178. 
 War, the late, and its Effect on 
 Civil Eemedies. N. S. xiv. 129. 
 Claims, Court of, and the Supreme Court. 
 k S. V. 111. 
 United States War. N. S. xiv. 65. 
 Client and Attorney. N. S. v. 385. 
 Codification and Law Eeform. N. S. 
 
 iii. 74. 
 Collateral Consanguinity. O. S. ix. 22. 
 Collector of Internal Eevenue, Liability 
 
 on his Bond. N. S. viii. 376. 
 Commercial Law, is it Administered by 
 the Courts of the United States, 
 irrespective of the Laws of the 
 Particular State in which the 
 Court is held. N. S. xii. 473. 
 Common Carriers, Express Companies 
 as. N. S. V. 449, 513, 648. 
 By Land. O. S. i. 65. 
 By Water. O. S. i. 65 : N. S. viii. 
 641. 
 Common Law, Walker's Theory of O. 
 S. i. 577. 
 Jurisdiction of the United States 
 
 Courts. N. S. vi. 129. 
 Extent to which it is Applied, in 
 Determining Crimes and their 
 Punishment. N. S. vi. 65, 129, 
 321. 
 Origin, Early History and General 
 Principles. N. S.vi. 65. 
 Commonwealth, the Ancient. N. S. xi. 
 
 465. 
 Competencj; of Witnesses. N. S. i. 257. 
 Exclusion for Interest. N. S. iv. 74. 
 Condonation. N. S. v. 641. 
 Confederate Notes (miscellany). N. S. 
 viii. 177. 
 States, Liability of Corporation in, 
 to Pay Dividends Declared during 
 the War. N. S. viii. 177. 
 Conflict of Jurisdiction, State and Na- 
 tional. N. S. vi. 193. 
 Of Laws as to Marriage and Di- 
 vorce. N. S. iii. 193. 
 Congress, Eegulation of Inter-State Traf- 
 fic on the Eailways by. N. S. 
 xiii. 1. 
 Congressman, Privilege from Arrest. N 
 S. viii. 371. 
 Privilege of, against Service of Civil 
 Process. N. S. viii. 53. 
 
TABLE OF LEADING AETICLES, ETC. 
 
 Consanguinity, Collateral. O. S. ix. 22. 
 Constitution and the War Power. N. S. 
 
 xiii. 265. 
 Constitutional Law, Power of President 
 to Appoint to a Vacant Office not 
 Occurring during Recess of the 
 Senate. N. S. viii. 619. 
 Money Granted by the State to a 
 Town cannot be taken away by 
 : Subsequent Legislation. N. S. 
 
 xiii. 581. 
 Eight to Vote, Test Oath. N. S. 
 
 viii. 625. 
 Eequirement, Christianity as. N. 
 _ S. xiii. 585. 
 Constitutionality of LocaJ Option Laws. 
 N. S. xii. 129. 
 Of Exemption Clause in Bankrupt 
 Act. N. S. vii. 55, 180. 
 Contempt of Court, in Eeference to 
 Violation of Injunction. O. S. vi. 
 632. 
 Case of Mr. Bradley. N. S. viii. 
 129, 305. 
 Contracts, the Measure of Damages of. 
 O. S. iii. 513, 528. 
 Interpretation and Construction of. 
 
 N. S. ii. 129. 
 Executed, Suspended by War, Ex- 
 ecTitorv Ones Abrogated. N. S. 
 xiii. 2-50. 
 Implied, Theory of. O. S. iv. 321. 
 Consideration ofj at Law and in 
 
 Equity. O. S. ii. 257, 385. 449. 
 Of Bailment, and of Sale and Ex- 
 change. N. S. iii. 321. 
 For Life In.surance with Public En- 
 emy Unlawful. N. S. xiii. 250. 
 By Telegraph, the Law Applicable 
 
 to. N. S. xiv. 401. 
 To Supply Patented Article to Mu- 
 nicipal Corporation. N, S. viii. 
 625. 
 Contribution, the Law of. N. S. viii. 
 
 641. 
 Conveyances, Voluntary. O. S. i. 131. 
 Conveyancing, English Doctrine of Uses 
 
 in American. O. S. v. 641. 
 Copyright. O. S. iii. 592. 
 
 Piracy by Memorization. N. S. 
 
 xiv. 207. 
 International. O. 8. ii. 129. 
 The Law of (legal notes). O. S. i. 
 503. 
 Coroners, Medico-Legal Duties of. O. 
 
 S. vi. 385. 
 Corporate Franchises, Forfeiture of. N. 
 
 S. V.577. 
 Corporation, qvAiere whether it is Capable 
 
 of Malice. O. S. viii. 701. 
 Co-sureties, Obligations as between. N. 
 
 S. xiii. 529. 
 Counsel, Authority of, to Settle Causes 
 (legal miscellany). K. S. ii. 689. 
 
 County Subscriptions to Eailroad Cor- 
 porations. N. S. xi. 737. 
 Court of Admiralty, on the Evidence re- 
 ceivable, in the. O. S. ii. 65. 
 Of Claims and the Supreme Court. 
 N. S. V. 111. 
 Covenants for Title, Running with the 
 
 Land. N. S. ii. 193, 257. 
 Crime of Adultery. N. S. vii. 769. 
 
 And its Punishment, the Common 
 Law, as Applied to. N. S. vi. 65, 
 129, 321. 
 Criminal Law, English Administration 
 of. O. S. V. 449. 
 Homicide. O. S. iii. 449. 
 Punishment after Repeal of Statute 
 Creating the Offence. N. S. viii. 
 376. 
 Jurisdiction of the United States 
 Courts at Common Law. N. S. 
 vi. 129. 
 Practitioners, Hints to. O. S. vii. 
 
 258. 
 Prosecutions, Testimony of Parties 
 in. N. S. iv. 193. N. S. v. 129, 
 705. N. S. vi. 385. 
 Tables, Decrease of Crime (legal 
 notes). O. S. i. 56. 
 Criteria of Partnership. N. S. x. 209. 
 Custom, not Valid against Rules of Law, 
 Agent taking Profits. N. S. viii. 
 375. 
 
 Damages in Actions for Negligence, Rule 
 
 of. N. S. xiv. 265. 
 Law of. O. S. ii. 641. 
 Day, Death of Hon. Thomas. O. S. iii. 
 
 383. 
 Dean, Amos, Biographical Notice. N. S. 
 
 vii. 257. 
 Death Penalty, Effect of the Act of 1852 
 
 in Abolishing in Mass. (legal 
 
 notes). O. S. i. 58. 
 Debts, Privileged. O. S. ix. 513. 
 Deceased Persons, Declarations of, as 
 
 Evidence. N. S. iii. 641. 
 Declarations of Deceased Persons as 
 
 Evidence. N. S. iii. 641. 
 Deeds of Settlement, Stamp Duty on. N. 
 
 S. iii. 116. 
 Of Trust, Sales and Titles under. 
 
 N. S. ii. 641, 705. 
 Delaware Fisheries, The. O. S. iv. 582. 
 Dickinson, John, Opinion of, as to what 
 
 Words in a Will are required to 
 
 Pass Lands in Fee. O. S. i. 79. 
 Brief Biographical Sketch of. Note 
 
 to Id. 74. 
 Disagreementof Jury, Eight to Discharge 
 
 for. N. S. iv. 524. 
 Discharge of Jury without Prisoner's 
 
 Consent (miscellany). N. S. viii. 
 
 180. 
 
IV 
 
 TABLE OF LEADING AETICLES, ETC. 
 
 Discipline of the Bar (legal miscellany). 
 
 N. S. ii. 691. 
 Digsolntion of Partnership. O. S. vii. 
 
 129. 
 Divorce, Fraud in Legal Proceedings 
 
 for. O. S. iv. 1. 
 And Marriage, Conflict of Laws as 
 
 to. N. 8. iii. 193. 
 Divorces, Validity and Effect of Foreign. 
 
 N. S. iii. 193. 
 In Indiana. N. 8. ix. 721. 
 Doctrine of Natural Allegiance, The. N. 
 
 8. xii. 65. 
 Domicile. N. 8. iii. 257. 
 Dower Assignment under Mistake of 
 
 Fact. N. 8. X. 609. 
 Dowress, Liability for Taxes Assessed 
 
 during Husband's Life. N. 8. vii. 
 
 257. 
 Duress per Minas at Law. N. 8. xiv. 
 
 201. 
 Duties, Office. O. 8. iv. 194. 
 
 Early Bankrupt Laws. N. 8. iv. 581. 
 
 Easements, Reciprocal. N. 8. ii. 449. 
 Loss of, by Abandonment. N. S. ii. 
 513. 
 
 Ecclesiastical Tribunal, Interference by 
 a Court of Equity. N. 8. viii. 
 625. 
 
 Eldagsen, Eemarkable Trial of the 
 Watchman of. O. 8. ix. 1. 
 
 Eloquence, Parliamentary and Forensic, 
 of England, France, and the 
 United States. N. 8. viii. 385. _ 
 
 Eminent Domain, Kight of. O. 8. iv. 
 641 ; O. 8. V. 1. 
 
 England, France, and America, Parlia- 
 mentary and Forensic Eloquence. 
 _ N. 8. viii._385._ 
 
 English Administration of Criminal 
 Law. O. S. V. 449. 
 Doctrine of Uses in Conveyancing. 
 
 0. 8. v. 641. 
 
 Estates, American Heirs to. N. 8. 
 viii. 374. 
 
 Ignorance of American Institutions. 
 N. 8. iv. 12. 
 
 Jurisprudence, Eecent Develop- 
 ments in (two articles). N. S. iv. 
 
 1, 129. 
 
 Law Officers, Eecent Changes (le- 
 gal notes). N. 8. viii. 177. 
 
 Equitable Assignments of Future Acqui- 
 sitions. N. 8. ii. 527. 
 
 Equity, Essay upon the Jurisdiction As- 
 sumed by Courts of Equity upon 
 the ground of Accident. O. S. ix. 
 449. 
 Jurisprudence, Adoption of the 
 Principles of, into the Administra- 
 tion of the Common Law. O. S. 
 viii. 513, 641, 705. 
 
 Estates, Eestraints on the Alienation and 
 Enjoyment of. N. 8. ix. 393, 457, 
 521. 
 Estoppel to Allege Unconstitutionality 
 
 of a Law. N. 8. viU. 620. 
 Ethics, Sharswood's. O. S. iii. 193. 
 Evidence of Chinamen in Criminal Pros- 
 ecutions (miscellany). N. 8. viii. 
 178. 
 Hearsay. N. 8. xii. 1. 
 Weight of. O. 8. i. 129. 
 Exchange, Contracts of. N. 8. iii. 321. 
 Executive, Power to Eevoke Pardon. N. 
 
 S. viii. 618. 
 Exemption Clause in Bankrupt Act, 
 Constitutionality of. N. 8. vi. 721 ; 
 N. S. vii. 55, 180. 
 Homestead. N. 8. i. 641, 705. 
 Laws, Stay and. N. 8. xi. 201. 
 From Taxation. N. 8. i. 718. 
 Express Carriers, Eeaponsibilities and 
 Duties of. N. S. v. 1. 
 Companies, How far Liable. N. 8. 
 
 V. 648. 
 As Common Carriers. N. 8. v. 449, 
 513, 648. 
 Extradition (legal notes). N. 8. viii. 
 57. 
 
 Federal and State Courts, Conflict of Ju- 
 risdiction. N. S. viii. 620, 623._ 
 And State Jurisdictions, Treaties 
 with Indians concerning Lands 
 within State Jurisdictions. N. 8. 
 xiii. 583. 
 Court, Appellate Jurisdiction of 
 the. O. 8. iv. 129. 
 Fees of Public Officer, Assignment of 
 
 (miscellany). N. 8. viii. 178. 
 Ferry Bights of Eiparian Proprietors. 
 
 N. 8. iv. 513. 
 Field's International Code. N. S. xi. 337. 
 Finding, Larceny by (notes). O. S. vii. 
 
 381. 
 Fisheries, on the Delaware. O. S. iv. 
 
 582. 
 Fixtures, Law of, as between the Heir and 
 
 Executor. N. S. v. 321. 
 Fletcher, Eichard. N. 8. ix. 129. 
 Foreign Divorces, Validity and Eflect 
 of. N. 8. iii. 193. 
 Law, Proof of. 0. 8. v. 321. 
 Vessels, Statutory Eules as to. N, 
 S. viii. 627. 
 Forensic Medicine, Observations on the 
 
 Tests for Arsenic. O. 8. i. 11. 
 Forfeiture of Corporate Franchises. N. 
 8. v. 577. 
 Of Seamen's Wages for Disobedience 
 (miscellany). N. S. viii. 181, 
 Forms of Action. N. 8. iii. 705. 
 France, Tribunals and Administration 
 of Justice in. N. S. vii. 1. 
 
TABLE OF LEADING AETICLES, ETC. 
 
 Frauds, Studies in the Law of the Statute 
 of. N. S. xiii. 593, 721. 
 
 Future Advances, Mortgages to Secure. 
 N. S. xi. 273. 
 
 Galloway, Joseph, Opinion of, as to what 
 
 Words in a Will are required 
 
 to Pass Lands in fee. 0. S. i. 74. 
 Brief Biographical Sketch of. Note 
 
 told. 
 Gibson, Ch. Justice of Pennsylvania, Eu- 
 
 iogium upon. O. S. i. 504, 
 Gift by Will, Solicitor and Client. O. S. 
 
 vi. 641. 
 Gifts in View of Death. O. S. i. 1. 
 Goods Landing without Permit of U. 
 
 S. Collector. N. S. viii. 376. 
 Seized under Eevenue Acts, Bond 
 
 for (miscellany). N. S. viii. 181. 
 Good Wm. N. S. xiv. 1, 329, 649, 713. 
 
 In Partnerships. N. S. ix. 65. 
 Governor, Mandamus against. N. S. 
 
 xiii. 581. 
 Ground Eents. O. S. iii. 65 ; O. S. ii. 677. 
 Guaranties, of the Acceptance of. O. S. 
 
 V. 386. 
 
 Habeas Corpus. O. S. iv. 257. 
 
 Cases, Appeals in. O. S. i. 513. 
 Keview of, Ex parte Merriman. O. 
 
 S. ix. 705. 
 Hard Rubber, Patent of (legal notes). 
 
 N. S. viii. 56. 
 Hearsay Evidence. N. S. xii. 1. 
 Higll Court of Errors and Appeals and 
 
 Negro Sufirage. O. S. iii. 268. 
 Hints to Criminal Practitioners. O. S. 
 
 vii. 258. 
 Hiring, Contract of. O. S. iii. 651. 
 History of Supreme Court of Pa. Hints 
 
 as to. O. S. iii. 436. 
 Homestead and Exemption Laws of the 
 
 Southern States. N. S. x. 137. 
 Exemption. N. S. i. 641, 705. 
 Homicide. O. S. ii. 449. 
 
 Law of, in Pennsylvania, Insanity 
 
 as a Defence. O. S. vi. 257. 
 Horizontal Divisions of Land. N. S. i. 
 
 577. 
 Husband and Wife. O. S. ix. 193, 257. 
 Power of, over Choses in Action of 
 
 the Wife. O. 8. ix. 193, 385. 
 
 Impeachment, Trial by. N. S. vi. 257. 
 The Law of. N. S. vi. 641. 
 
 Implied Contracts, Theory of. O. S. iv. 
 321. 
 
 Imports, Eevenue Acts (miscellany). N. 
 S. viii. 181. 
 
 Income Tax, Meaning of the word " Per- 
 son." N, S. viii, 626. 
 
 Indian Lands, Treaties, State and Fed- 
 eral Jurisdictions. N. S. xii. 583. 
 Marriages (legal notes). N. S. viii. 
 57. 
 
 Indiana Divorces. N. S. ix. 721. 
 
 Injunction, Contempt of Court for Vio- 
 lation of. O. S. vi. 632. 
 
 Insanity, Burden of Proof in Cases of 
 N. 8. ix. 201, 329. 
 Plea of. O. 8. iv. 705. 
 
 Insurance Companies, Liability in Cases 
 of Suicide. N. 8. x. 673. 
 From Accidents (miscellany). N. S, 
 viii. 57. 
 
 Interest on Verdict (miscellany). O. 8. 
 vii. 189. 
 
 Internal Eevenue, Lottery (miscellany). 
 N. S. viii. 180. 
 Criminal Law (miscellany). N. S. 
 
 viii. 180. 
 Punishment after Eepeal of Statute 
 Creating the Offence. N. 8. viii. 
 376. 
 
 International Code, Fields. N. S. xi. 
 337. 
 
 Inter-State Traffic on Eailways, Eegu- 
 
 lation of, by Congress. N. S. xiii. 1. 
 
 Travel, Taxation of N. S. x. 417. 
 
 Interversion of Possession, or whether a 
 Party may Change the Cause of 
 his Possession. N. 8. i. 65. 
 
 Inventions, Eeducing to Practice. N. 8. 
 xi. 612, 665. 
 Priority of. N. S. xi. 601. 
 
 Investments by Trustees. N. 8. xiii. 201. 
 
 Is there a General Commercial Law Ad- 
 ministered by the Courts of the 
 United States Irrespective of the 
 Laws of the Particular State in 
 which the Court is held. N. S, 
 xii. 473. 
 
 Judges, Declination of, to Serve as Com- 
 missioners for Erection of Public 
 Buildings in Philadelphia. O. 8. 
 viii. 569. 
 
 Judgment, Lien of. O. S. v. 513. 
 
 Judgments, mode of Authenticating Jus- 
 tices. O. 8. V. 577. 
 
 Judicial Eomance — Construing a Will. 
 O. S. vi. 180. 
 Puzzle, Quaere, is Sheep Mutton. O. 
 
 S. i. 504. 
 Power to Declare Acts of Congress 
 Void. N. 8. ix. 585 ; N. S. xi. 
 729. 
 System of United States, Eecent 
 Change (legal notes). N. S. viii. 
 871. 
 
 Judiciary, The. N. 8. vi. 513. 
 
 Power to Declare a Law Unconsti- 
 tutional, N. S, ix. 585 ; N. 8. xi. 
 729, 
 
VI 
 
 TABLE OF LEADING AETICLES, ETC. 
 
 Juries, Unanimity of. N. S. vi. 727. 
 Unanimity (legal notes). O. S. vii. 
 314. 
 Jurisdiction of United States Courts in 
 Admiralty not Limited to Tide- 
 Water (legal notes). O. S. i. 58. 
 Of Federal and State Courts, Con- 
 flict of. N. S. viii. 620. 
 Federal and State, Conflict of Au- 
 thority. N. S. viii. 623. 
 Conflicts of. O. S. ii. 321. 
 Limits of State and National. N. 
 
 S. vi. 193. 
 Of the Court of Chancery to Enforce 
 Charitable Uses. N. S. i. 129, 
 321, 385, 449. 
 Jurisprudence, Eecent Developments in 
 English (two articles). N. S. iv. 
 1, 129. 
 Jury, Discharge of, without Prisoner's 
 Consent (miscellany). N. S. viii. 
 180. 
 Trials, Right to Discharge for Dis- 
 agreement. N. S. i. 524. 
 Trial by. O. S. vi. 705. 
 ■iiii Trial without. O. S. iii. 321. _ 
 Justice, Administration of. N. S. vii. 193. 
 Tribunals of, in France. N. S. vii. 1. 
 
 Kuhn V. Newman, Review of the Doc- 
 trine of. O. S. V. 193. 
 
 Land, Horizontal Divisions of. N. S. i. 
 
 577. 
 Covenants for Title Running with 
 
 the. N. S. ii. 193, 257. 
 Selling by Reference to a Map. N. 
 
 S. xiii. 582. 
 Landlord and Tenant, Law of. O. S. 
 
 viii. 321, 450. 
 • Larceny, by Finding (note). O. S. vii. 
 
 381. 
 Law, Malice in. O. S. vi. 321. 
 
 Reporting in England (legal mis- 
 cellany). N. S. ii. 501. 
 And the Lawyers (notes), O. S. vii. 
 
 313. 
 Books Published in theUnited States 
 
 in 1864. N. S. iv. 302. 
 Of Contracts by Telegraph. N. S. 
 
 xiv. 401. 
 Of Religious Societies and Church 
 
 Corporations. N. S. xii. 201, 329, 
 
 537; N. S. xiii. 65. 
 In the United States— Practical Sug- 
 gestions. O. S. iii. 60. 
 Reform and Codification. N. S. iii. 
 
 74. 
 Lawyer, an American, in England. N. 
 
 S. vi. 449. 
 Learned Blunder (legal miscellany). N. 
 
 S. ii, 689. 
 
 Legal Education. N. S. xii. 65, 265, 409. 
 Intelligence and Reform. N. S. i. 524. 
 Process, Resistance to. Ch. J. Shep- 
 
 ley's Charge. O. S. i. 212. 
 Principles — Practical Suggestions 
 and Advice to Students and Law- 
 yers. O. S. iii. 60, 185, 252, 312, 
 381, 505, 633, 759. 
 Proceedings, Fraud in. O. S. iv. 1. 
 Legal Profession, Limits of Professional 
 Responsibility and Duty. N. S. 
 X. 281. 
 Responsibilities and Duties of. N. 
 
 S. X. 545. 
 In England and America, the. N. 
 S. X. 753. 
 Legal Reform. N. S. iii. 577. 
 
 Studies on the Continent. O. S. vi. 
 577. 
 Legal Tender Cases, what they Decide. 
 N.S. xii. 601. 
 (Miscellany). N. S. ii. 497. 
 Decisions, the. N. S. x. 73. 
 Notes before the Supreme Court. 
 N. S. viii. 193. 
 Legislation, Bankrupt Act Compliment 
 
 to America. N. S. vii. 330. 
 Legislative Power to Amend Charters. 
 
 N. S. xi. 1. 
 Legislature, Acts of. Presumption as to 
 their Validity. N. S. xiii. 248. 
 Constitutional Power over Munici- 
 palities. N. S. xiii. 251, 581. 
 The Right of a (without Reference 
 to the Law of Eminent Domain ), 
 to Change the Legal Character of 
 Estates or the Title to Property by 
 General or Special Enactments. 
 O. S. vii. 449, 513. 
 Liberia, Administration of Law in, N. 
 
 S. V. 65, 
 Libri, Case of Mons. O. S. i. 136. 
 Lien of Warehousemen and Wharfing- 
 ers. N. S. xiv. 465. 
 On Stock of National Bank. N. S. 
 xiii. 249. 
 Liens, Law of. O. S. i. 257, 321. 
 
 Maritime. O. S. v. 129 : N. S. xiv. 
 593. 
 Life Insurance, Obligation of Party to 
 Disclose all Material Facts — 
 Amusing Report. O. S. i. 254. 
 Of Public Enemy. N. S. xiii. 250. 
 Companies, Liability in Cases of 
 Suicide. N. S. x. 673. 
 Lights, Ancient. N. S. ii. 522. 
 Limitations, Statutes of N. S. xiii. 465. 
 Limits of State and National Jurisdic- 
 tion. N. S. vi. 193. 
 Lincoln's Inn and Westminster Hall. 
 
 N. S. vi. 577. 
 Literature, Current Legal. O. S. iv. 513. 
 Local Option Laws, Constitutionality of. 
 N. S. xii. 129, 
 
TABLE OF LEADING AETICLES, ETC 
 
 Vll 
 
 Lodging-House Keepers, Liabilities of. 
 O. S. iii. 257. 
 
 Lord Chancellor Westbury, Biograph- 
 ical Sketch of. N. S. iv. 641.' 
 
 Lotterv, Internal Kevenue (miscellany). 
 "A'. S. viii. 180. 
 
 Louisiana, Provisional Conrt of (three 
 articles). N. S. iv. 65, 257, 385. 
 
 Malice, is a Corporation Capable of O. 
 
 S. viii. 701. 
 Mandamns against the Governor. N. S. 
 
 xiii. 581. 
 }ii;iiislaughter. Defence in. O. S. vii. 258. 
 Map, Selling Land by Kefereuce to. N. 
 
 S. xiii. 582. 
 Maritime Liens. O. S. v. 26 ; N. S. xiv. 
 
 593. 
 Marriage, Laws Regulating Forms of 
 
 X. S. iii. 129. 
 And Divorce, Conflict of Laws aa 
 
 to. N. S. iii. 193. 
 Action for Breach of Promise. N. 
 _ S. xi. 65. 
 Marriages of Indians (legal notes). N. 
 
 S. viii. 57. 
 Married Women, Rights and Powers of. 
 
 O. S. iii. 385. 
 As Bankrupts. N. S. xiii. 129. 
 Martial Law. O. S. ix. 498. 
 Master and Servant, Negligence by. O. 
 
 S. vi. 449. 
 Medical Practitioners, Legislation 
 
 against Quacks. N. S. viii. 375. 
 •Memorization, Piracy of Copyright by. 
 
 K S. xiv. 207. 
 Mental Alienation, Unsolved Problems 
 
 in the Law Relating to. N. S. i. 
 
 513, 592. 
 Unsoundness as Affecting Testa- 
 mentary Capacity. N. S. iii. 1, 
 
 385. 
 Mtnu, Laws of O. S. ix. 717. 
 Merriman, Ex Parte, Review of. O. S. 
 
 ix. 705. 
 Military and Civil Law — Jurisdiction 
 
 of Civil Authorities over Soldiers. 
 
 N. S. xiii. 5S3. 
 Suffrage Act of Michigan. N. S. 
 
 iv. 334. 
 Mines, Mariposa Grant. N. S. i. 462. 
 Misconduct of Lawyers, Case of Mr. 
 
 Bradley. N. S. viii. 129, 305. ^ 
 Missouri, Supreme Judgeship. N. S. iv. 
 
 705. 
 Mistake of Fact, Assignment of Dower. 
 
 N. S. X. 609. 
 Morals, Malice in. O. S. vi. 321. ^ 
 Mortgage, the ; Its Origin and History. 
 
 O. S. iv. 449. 
 How far Power to, is Implied in 
 
 Power of Sale (legal notes). O. S. 
 
 i. 128, 
 
 Mortgages to Secure Future Advances. 
 N. S. xi. 273. 
 Registration of, to Secure Future 
 Advances, and where the Security 
 has been Changed. N. S. ii. 1. 
 
 Municipal Subscriptions and Taxation 
 in Aid of Railroads. N. S. ix. 649. 
 Corporation, Contract to Supply Pat- 
 ented Article. N. S. viii. 625. 
 
 Mutton, How far a Sheep is. O. S. i. 504. 
 
 Napoleon, Code of. O. S. iii. 641. 
 National Banks, Lien on Stock of N. S. 
 xiii. 249, 586. 
 Usury by (legal notes). N. S. viii. 
 
 54. 
 Taxation of Shares of. N. S. viii. 55. 
 Shares held by Non-residents, Tax- 
 ation of N. S. viii. 56. 
 Natural Allegiance, The Doctrine of N. 
 
 _ S. xii. 65. 
 Negligence, and the Rale of Damages 
 in Actions for. N. S. xiv. 265. 
 Doctrine of O. S. vi. 449 ; O. S. ix. 
 
 129 ; O. S. viii. 385. 
 Death bv. O. S. vii. 1. 
 Death by, Note to. O. S. vii. 4. 
 Negro Suffrage, High Court of Errors 
 and Appeals, and. O. S. vi. 268. 
 Neutrals, Title to Ships of O. S. v. 94. 
 Non-resident Holders of Shares of Na- 
 tional Banks, Taxation of (legal 
 notes). N. S. viii. 56. 
 Non-residents, Actions against. N. S. 
 
 vi. 1. 
 Nullum Tempus Occurrit Regi. N. S. 
 xiii. 465. 
 
 Office Duties. O. S. iv. 194. 
 
 Officer, Right to Fees Dependent on 
 
 Performance of Duties (miscel- 
 
 _ lany). N. S. viii. 178. 
 
 Opinion of the Attorney-General as to 
 
 the Chemung River. O. S. iv. 385. 
 
 Palmer's Case, Evidence in. O. S. v. 20. 
 
 Pardon-delivery, Revocation by new Ex- 
 ecutive. N. S. viii. 618. 
 
 Parent and Cliild, Rights and Liabilities 
 of O. S. i. 641, 705. 
 
 Parks, Constitutional Power of Legisla- 
 ture over Municipalities. N. S. 
 xiii. 251, 581. 
 
 Parliamentary and Forensic Eloquence 
 in America, England and France. 
 N. S. viii. 385. 
 
 Parol Testimonv in the Construction of 
 Wills. N. S. X.353. 
 
 Parties, Testimony of, in Criminal Prose- 
 cutions. N. S. iv. 193; N. S. v. 
 129, 705 ; N. S. vi. 385. 
 
Vlll 
 
 TABLE OF LEADING AETICLES, ETC. 
 
 Parties as Witnesses, Disqualification of. 
 
 O. S. V. 207. 
 Partner, Power to Bind the Finn by- 
 Sealed Instrument. N. S. ix. 265. 
 Partner.ship Bills and Notes. N. S. xi. 
 
 537. 
 
 Criteria of. N. S. x. 209. 
 
 Dissolution of. O. S. vii. 129. 
 
 Partnerships, Good Will in. N. S. ix.65. 
 
 Passenger Traffic of Railways. N. S. i. 1. 
 
 Patented Article, Eight of Municipal 
 
 Corporation to Contract for. N. 
 
 8. viii. 625. 
 Patent Eight, Hard Eubber (legal notes). 
 
 N. S. viii. 56. 
 System of the United States. -N. S. 
 
 viii. 321. 
 Payments, Application of. N. S. v. 193, 
 
 257. 
 Appropriation of. O. S. iii. 705. 
 Penal Code, Eevised, of Pennsylvania. 
 
 O. S. viii. 577. _ 
 Penns, Proprietary Title of the. N. S. 
 
 X. 487. 
 Pennsylvania Cases, Eemarks on some 
 
 Eecent. 0. S. vii. 65. 
 Ground Bents. O. S. ii. 577 ; O. S. 
 
 iii. 65. 
 Photographs, Legal Eelations of. N. S. 
 
 viii. 1. 
 Piracy of Copyright by Memorization. 
 
 N. S. xiv. 207. 
 Possession, Interversion of. N. S. i. 65. 
 Power of the Husband over the Glioses 
 
 in Action of the Wife. O. S. ix. 
 
 193, 385. 
 Of Judiciary to Declare a Law Un- 
 constitutional. N. S. xi. 585, 729. 
 Of Partner to Bind the Firm by 
 
 Sealed Instrument. N. S. ix. 265. 
 Of Sale, how far Implies Power to 
 
 Mortgage (legal notes). O. S. i. 
 
 128. 
 President of the United States, Power to 
 
 Fill Vacancy not Occurring dur- 
 ing Eecess of Senate. N. S. viii. 
 
 619. 
 Power to Grant a General Amnesty. 
 
 N. S. viii. 513, 577. 
 Presumption as to Validity of Acts of 
 
 the Legislature. N. S. xiii. 248. 
 Priority of Invention. N. S. xi. 601. 
 Prisoner, Discharge of Jury without his 
 
 Consent (miscellany). N. S. viii. 
 
 180. 
 Private Property, Taking (miscellany). 
 
 N. S. viii. 179. 
 Privilege from Arrest of Congressmen. 
 
 N. S. viii. 371. 
 Privileged Debts. O. S. ix. 513. 
 Privileges of Congressmen as to Service 
 
 of Civil Process. N. S. viii. 53. 
 Professional Misconduct, Case of Mr. 
 
 Bradley. N. S. viii. 129, 305. 
 
 Proper Limits of Professional Eesponsi- 
 
 bility and Duty, the. N. S. x. 281. 
 
 Proprietary Title of the Penns. N. S. x. 
 
 . .487- 
 Provisional Court of Louisiana (three 
 
 articles). N. S. iv. 65, 257, 385. 
 Public Buildings of Philadelphia — ■ 
 
 Answer of the Judges Declining 
 
 to Serve as Commissioners for the 
 
 Erection of O. S. viii. 569. 
 Officer, Reward for Performance of 
 
 Duty. Special Deputy. IS". S. xiii. 
 
 581. 
 Parks — Constitutional Power of 
 
 Legislature over Municipalities. 
 
 N. S. xiii. 251. 
 Use, What is (miscellany). N. S. 
 
 viii. 179. 
 Use, Dedication to. N. S. xiii. 582. 
 
 Quacks, Legislation against. N. S. viii. 
 375. 
 
 Railroad Corporations, County Subscrip- 
 tions to. N. S. xi. 737. 
 Corporations, Eights and Liabilities 
 
 of. O. S. viii. 129, 257. 
 Companies, Municipal Subscriptions 
 to the Stock of. O. S. ii. 1. 
 
 Eailroads, Municipal Subscriptions and 
 Taxation in Aid of. N. S. ix. 649. 
 
 Eailway Passenger Traffic. N. S. i. 1. 
 
 Eailways, a Matter of National Intei-est. 
 N. S._vi. 193. 
 And Highways, Eelation of — Street 
 Eailways. ' N. S. i. 193. 
 
 Eecent Developments in English Juris- 
 prudence (two articles). N. 8. iv. 
 1, 129. 
 
 Reciprocal Servitudes. N. S. ii. 449. 
 
 Recoupment. O. S. ix. 321. 
 
 Reducing an Invention to Practice. N. 
 S. xi. 612, 665. 
 
 Reform, Legal. N. S. iii. 577. 
 
 And Legal Intelligence. N. S. i. 524. 
 And Reformers. N. S. iii. 513. 
 And Codification of Law. N. S. iii. 
 74. 
 
 ■Regulation, Inter-State Traffic, on Rail- 
 ways, by Congress. N. S. xiii. 1. 
 
 Relation of tlie Civil to the Common 
 _ Law. K. S. xii. 673. 
 
 Religious Societies and Church Corpora- 
 tion.=, the Law of N. 8. xiii. 65. 
 In Ohio, Law of. N. S. xii. 201, 
 329, 537. 
 
 Remarkable Criminal Trial, the Watch- 
 man of Eldagsen. O. S. ix. 1. 
 
 Remote Consequences of Acts or Omis- 
 sions, Responsibility for. N. S. 
 xiii. 14. 
 
 Removal of Causes from State to Federal 
 Courts. N. S. ix, 1. 
 
TABLE OF LEADING ARTICLES, ETC. 
 
 Reporting in England (legal miscellany). 
 N. S. ii. 501. 
 
 Resistance to Legal Process, Cli. J. Sliep- 
 ley'_s_Charge. O. S. i. 212. 
 
 Responsibilities and Duties of Express 
 Carriers. N. S. v. 1. 
 Of the Legal Profession. N. S. x.545. 
 
 Restraints on the Alienation and Enjoy- 
 ment of Estates. N. S. ix. 393, 
 457, 521. 
 
 Revenue xVcts — Imports (miscellany). 
 K. S. viii. 181. 
 Internal — Lottery (miscellany). N. 
 
 S. viii. 180. 
 Law, Landing Goods without Per- 
 mit. N. S. viii. 376. 
 
 Review of the Doctrine of Kuhn ». New- 
 man. O. S. V. 193. 
 Of Recent English Decisions. See 
 Recent Developments. N. S. ii. 
 5i2. 
 
 Rights of Sureties inter sese. N. S. xiii. 
 529. 
 
 Riparian Proprietors, the Rights and 
 Obligations of. O. S. vii. 705. 
 Ferry Rights. N. S. iv. 513. 
 
 Sale, Contracts of. N. S. iii. 321. 
 
 Power of, how far Implies a Power 
 
 to Mortgage (legal notes.) O. S. i. 
 
 128. 
 Sales and Titles under Deeds of Trust. 
 
 N. S. ii. 641, 705. 
 Scotch Law, and Law Books. O. S. iv. 
 
 577. 
 Scotland, the Judicial System of. N. S. 
 
 viii. 257. 
 Seamen, Right to Damages for Neglect 
 
 while Sick. N. S. viii. 628. 
 Seamen's Wages, Forfeiture of, for Dis- 
 obedience (miscellany). N. S.viii. 
 
 181. 
 Senile Dementia. N. S. iii. 449. 
 Sergeant, the Hon. John. O. S. i. 193. 
 Service of Civil Process — Privilege of 
 
 Congressmen. N. S. viii. 53. 
 Servitudes, Reciprocal. N. S. ii. 449. 
 Settlement, Deeds of, Stamp Duty. N. 
 
 S. iii. 116. 
 Shaker Community — Income Tax. N. 
 
 S. viii. 626. 
 Ships, Opinion of Attorney-General U. 
 
 S. on Title to. O. S. iii. 577. 
 Lights and the Rule of the Road. 
 
 O. S. vi. 1. 
 Slander, Interpretation of Slang (notes). 
 
 O. S. vii. 319. 
 Slang, Interpretation of (notes). O. S. 
 
 vii. 319. 
 Slaves Voluntarily taken to a Free State 
 
 — Judge Paine's Decision (legal 
 
 notes). O. S. i. 126. 
 Smith's Trial. O. S. vi. 193. 
 
 Soldiers, Jurisdiction of Civil Authori- 
 ties over. N. S. xiii. 583. 
 
 Solicitor and Client. O. S. vi. 641. 
 
 Southern States, Homestead and Exemp- 
 tion Laws of. N. S. X. 1, 137. 
 
 Special Agency. N. S. xiii. 657. 
 
 Deputy, Reward for Performance of 
 Duty. N. S. xiii. 581. 
 
 Stamp Duty on Deeds of Settlement. N. 
 S. iii. 116. 
 
 Stamps. N. S. xi. 137. 
 
 State and Federal Courts, Conflict of 
 
 Jurisdiction. N. S. viii. 620, 623. 
 
 Governments, Organization of, after 
 
 the Rebellion. N. S. viii. 371. 
 And National Jurisdiction, Limits 
 
 of. N. S. vi. 193. 
 Property, Alienation of, during the 
 War. N. S. viii. 371. 
 
 States, Judgments of other. O. S. iii. 204. 
 
 Statute of Frauds, Studies in the Law of 
 N. S. xiii. 593, 721. 
 
 Statutes, Construing by Equity. O. S- 
 vi. 513. 
 
 Stay and Exemption Laws. N. S. xi. 201 . 
 
 Steamer and Sailing Vessel — Collision. 
 N. S. viii. 627. 
 
 Stock, Lien on National Bank. N. S. 
 xiii. 249, 586. 
 Of National Bank, Lien on. N. S. 
 xiii.'' 249, 586. 
 
 Stockholders in the Loyal States, Lia- 
 bility of Corporations in Seced- 
 ing States to Pay Dividends to 
 (miscellany). N. S. viii. 177. 
 
 Stoppage in Transitu, Right of O. S. 
 vii. 677, 641. 
 
 Street Railways, Relation of, to High- 
 ways. "N. S. i. 193. 
 
 Studies in the Law of the Statute of 
 Frauds. N. S. xiii. 593, 721. 
 
 Subsequent Purchasers, what is Notice 
 to. N. S. xiii. 582. 
 
 Subterranean Waters, Rights in. N. S. 
 ii. 65. 
 
 Suffrage, Military, Act of Michigan. N. 
 S. iv. 334. 
 
 Sunday, Legal Proceedings on. N. S. 
 xiii. 586. 
 
 Supreme Court, and Court of Claims. 
 N. S. V. lll._ 
 Of Pennsylvania, Hints towards His- 
 tory of. O. S. iii. 436. 
 
 Supreme Judgeship of Missouri. N. S. 
 iv. 705. 
 
 Sureties, Rights of inter sese. N. S. xiii. 
 529. 
 
 Survivorship, Presumption of. O. S. iii. 
 439. 
 
 Talford, the late Mr. Justice. O. S. ii. 513. 
 Tavern-Keepers, Question Affecting (le- 
 gal notes). 0. S. i. 57. 
 
TABLE OF LEADING ARTICLES, ETC. 
 
 Taxation of Inter-State Travel. N. S. 
 
 X. 417. 
 Taxation of Shares of National Banks 
 
 (legal notes). N. S. viii. 55. 
 Of Non-Besidents (legal notes). N. 
 
 S. viii. 56. 
 Exemption of. N. S. i. 718. 
 Telegraph, Contracts by. N. S. xiv. 401. 
 Telegraphs and Telegrams. N. S.iv. 193. 
 Testimony of Parties in Criminal Pro.s- 
 
 ecutions. N. S. iv. 193 ; N. S. v. 
 
 129, 705; N. S. vi. 385. 
 Test-Oath, Constitutional Law. N. S. 
 
 viii. 625. 
 The Legal Profession in England and 
 
 America. N. S. x. 753. 
 The Legal Tender Decisions. N. S. x. 73. 
 Title, an Abstract of. N. S. xiv. 529. 
 To Belligerent Ships — Neutrals. O. 
 
 S. V. 94. 
 To Ships, Opinion of Attorney-Gen- 
 eral of U. S. on. O. S. iii. 577. 
 Titles under Deeds of Trust. N. S. ii. 
 
 641,705. 
 Traverse de Injuria, Notes on. N. S. ii. 
 
 577. 
 Treaties with Indians, Lands within 
 
 State. N. S. xiii. 583. 
 Ti-ial without Jury. O. S. iii. 321. 
 Trust Deeds, Sales and Titles under. N. 
 
 S. ii. 641, 705. * 
 
 Trustees, Investments by. N. S. xiii. 201. 
 
 Unanimity of Juries. O. S. vii. 314: N. 
 
 S. vi.^ 727. 
 Unconstitutionality of a law, Estoppel to 
 
 Allege. N. S. viii. 620. 
 United States Courts, Common Law 
 Criminal Jurisdiction of. N. S. 
 vi. 129. 
 Ex rel. Learned v. Burlington (le- 
 gal miscellany). N. S. ii. 498. 
 Plander's Lives of the Chief Jus- 
 tices of the. O. S. iii. 592. 
 Judicial System — Eecent Changes 
 
 (miscellany). N. S. viii. 371. 
 
 Provisional Court for Louisiana 
 
 (three articles). N. S. iv. 65, 257, 
 
 385. 
 
 Supreme Court of the. O. S. ii. 705. 
 
 The Alienigenae of the. O. S. ii. 193. 
 
 Unstamped Instruments. N. S. x. 481. 
 
 Use, what is Public (legal notes). N. S. 
 
 viii. 179. 
 Uses, Doctrine of. O. S. vi. 65. 
 
 In American Conveyancing, English 
 Doctrine of. O. S. v. 641. 
 
 Usury. O. S. v. 705 ; N. S. iv. 321, 512. 
 By National Banks. N. S. vm. 54. 
 
 Vacancy, when not Occurring during 
 Becess of Senate, Power of Pres- 
 ident to Fill. N. 8. viii. 619. 
 
 Verbal Declarations of Deceased Per- 
 sons as Evidence. N. S. iii. 641. 
 
 Verdict, Interest on (notes). O. S. vii. 
 189. 
 
 Vote, Eight to. Test Oath. N. S. viii. 
 625. 
 
 Wallace, Horace Blnney. O. S. i. 310. 
 
 War, Alienation of State Property dur- 
 ing. N. S. viii. 371. 
 Claims against the United States. 
 N. S. xiii. 265, 337, 401 ; N. S. xiv. 
 65. 
 Liability of Corporations in South- 
 ern States to Pay Dividends De- 
 clared during the Eebellion (mis- 
 cellany). N. S. viii. 177. 
 
 Warehousemen and Wharfingers, Lien 
 of. N. S. xiv. 465. 
 
 Watchman of Eldagsen, Criminal Trial 
 of. O. S. ix. 1. 
 
 Waters, Eights in Subterranean. N. S. 
 ii. 65. 
 
 Webster, Dan'l, Biographical Notice (le- 
 gal notes). O. S. i. 58. 
 
 Westbury, Lord Chancellor, Biograph- 
 ical Sketch of Life. N. S. iv. 
 641. 
 
 Westminster Hall and Lincoln's Inn. N. 
 S. vi. 577. 
 
 Wharfingers and Warehousemen, Lien 
 of. N. S. xiv. 465. 
 
 Wife, Power of the Husband over the 
 Choses in Action of the. O. S. ix. 
 193, 385. 
 
 Will, Construction of — Judicial Eo- 
 mance. O. S. vi. 180. 
 Effect of Probate in one State, when 
 Offered for Allowance in Anotlxer. 
 
 0. S. ix. 577, 641. 
 
 Wills, Parol Testimony in Construction 
 of. N. S. X. 353. 
 
 Windmill, Prescriptive Eight of Owner 
 of, to Use of Uninterrupted Cur- 
 rent of Air. N. S. i. 637. 
 
 Wirt, William. N. S. vii. 65. 
 
 Witnesses. Competency of. O. S. viii. 
 
 1, 65, 193 ; N. S. i. 257. 
 Written Instruments, Ambiguities in. 
 
 N. S. V. 140. 
 
A. DIGEST 
 
 AMERICAN LAW REGISTER: 
 
 COMPRISING 
 
 OLD SERIES, Vols. I. to IX.-inclusive ; NEW SERIES, Vols. I. to XIV. inclusive. 
 
 [The letters 0. S. and N. S. respectively refer to the Old Series and New Series.] 
 
 ABANDONMENT. 
 I. Of a Right op Wat- 
 
 1. Whether mere non-user of a right Rmounts to an abandonment of the right 
 will depend upon the circumstances which caused the non-user. Therefore, 
 where the use of an immemorial right of way to a close was discontinued, be- 
 cause the occupiers had a more convenient access to it over another close in their 
 occupation : Held, that the non-user afforded no evidence of an intention to 
 abandon the right. Ward v. Ward, 0. S. i. 309. 
 
 n. Where Propeett is Insured. 
 
 2. The legal meaning of the term abandonment, as used in a policy of in- 
 surance, is a transfer to the underwriter of the interest of the assured to the extent 
 that it is covered by the policy. Insurance Co. v. Duffield, 0. S. iv. 662. 
 
 3. A policy of insurance contained the following clause: "And in all cases 
 of abandonment the assured shall assign, transfer and set over to said insurance 
 company all their interest in and to the said steamboat and every part free of all 
 claims and charges whatever." The steamboat was assured only as to three- 
 fourths of its value — was wrecked and abandoned to the insurance offices : 
 Held, that the abandonment spoken of in the clause, and noted from the policy, 
 could only be an abandonment in the legal technical sense of the word, and the 
 owner had an interest of one-fourth in the boat after abandonment, as to which 
 they were their own insurers. Id. 
 
 4. A mere notice of abandonment, without actual abandonment, amounts to 
 nothing. Winter v. Delaware Mutual Safety Insurance Co., O. S. ix. 304. 
 
 5. If the facts do not justify an abandonment it is not binding upon the under- 
 writers or assured. Id. 
 
 III. Op Voyage. 
 
 6. Where a ship sailed from Baltimore, bound to Portland, Oregon, and wag 
 compelled to put into Rio to refit, and after being refitted sailed for San Fran- 
 cisco, bntwas again compelled to return to Rio, a bottomry bond executed at Rio 
 having been made payable at San Francisco : Held, no abandonment of the voy- 
 age to Portland, San Francisco being on the route to the place of final destina- 
 tion. Winter v. Delaware Insurance Co., 0. S. vi. 572. 
 
 IV. In Other Cases. 
 
 7. Abandonment of a patent may take place within two years prior to the 
 application for a patent. Sanders v. Loc/an, 0. S. ix. 476. 
 
 8. Abandonment by wife, if justifiable, is not desertion. Catteson y. Catleson, 
 O. S. ii. 184. 
 
 (9) 
 
10 ABATEMENT— ACCORD AND SATISFACTION. 
 
 ABATEMENT. 
 
 1. Whether defendant is a corporation, upon matter dehors the record, must 
 be raised by plea in abatement. Express Co. v. Haggard, N. S. vi. 124. 
 
 2. When plea in abatement, to capacity of officer serving the writ, held de- 
 fective : Smith v. Chase, N. S. vi. 573. 
 
 3. In debt against one on a judgment against three the non-joinder may be 
 pleaded in abatement. Jtuige of Probate v. Webster, N. S. vi. 318. 
 
 ABDUCTION. 
 
 1. In action for abduction of child, expenses of pursuit may be recovered. 
 Rice V. Nickerson, N. S. iv. 703. 
 
 2. Evidence in such suit. Id. 
 
 ABORTION. 
 
 1. To procure an abortion, as to a female, pregnant but not quick with child, 
 was not, at the common law, an offence, if done with her consent. By our 
 statute (in state of Maine) the procuring of an abortion is an offence, whether 
 the child had quickened or not, and whether with or without the consent of the 
 mother. Smith v. State, 0. S. i. 188. 
 
 2. On the trial of an indictment for murder by poison, in which one count 
 alleges that the deceased was pregnant, and was induced to take the poison by 
 assurance of the defendant that it was a medicinal preparation which would pro- 
 duce a miscarriage, evidence of a conversation two or three years before the time 
 of the acts charged, in which the defendant applied to a witness for information 
 upon the subject of procuring abortions, is inadmissible. Commonwealth v. 
 Hersey, N. S. i. 178. 
 
 ABRIDGMENT. 
 
 Not an infringement of the copyright — the subject discussed. O. S. iii. 129. 
 
 ABSENTEES. 
 
 Actions against — the subject discussed. N. S. vi. 1. 
 
 ACCEPTANCE OF MANUFACTURED ARTICLE. 
 
 To pass title to manufactured article there must be an acceptance, either ex- 
 press or implied. Moody v. Brovm, 0. S. i. 431. 
 
 ACCIDENT. 
 
 Jurisdiction of equity on ground of — subject discussed. O. S. ix. 449. 
 
 ACCOMPLICE. 
 
 1. Where D., an accomplice, having testified on the trial before the petit jary, 
 and witnesses were called to prove circumstances tending to corroborate the testi- 
 mony of D., it was held, that the evidence of such witnesses was admissible. 
 The State v. Wolcott, 0. S. i. 565. 
 
 2. Declarations of one accomplice evidence against the other. People y. 
 Pitcher, O. S. i. 634. 
 
 ACCORD AND SATISFACTION. 
 
 1. Where the holder of a note surrenders it to the maker, and takes one of less 
 amount in satisfaction, it is a full discharge. Draper v. JSitt, N. S. xi. 49. 
 
 2. The payment of a less sum is not a sufficient consideration for an agree- 
 ment to discharge a greater, but the Code of Tennessee alters the common law 
 rule, and enforces such contracts when fully performed in good faith according 
 to the intention of the parties. City of Memphis v. Brown, N. S. xi. 629. 
 
 3. Where an agreement is made by a debtor to deliver in full satisfaction of a 
 larger sum due, his notes or money for a less sum, even though there is a con- 
 sideration for the agreement, it must, in order to operate as a discharge, be fully 
 and fairly performed in all its parts, both in time and amount. Id. 
 
 4. In order to sustain a contract of settlement without other sufficient con- 
 sideration, upon the ground that it was the compromise of doubtful claims, the 
 doubt must be such as would arise in the mind of an ordinarily intelligent person 
 familiar with the class of things which is the subject of the settlement. Id. 
 
 5. Where a contract is assigned in full payment and satisfaction of a note, it is 
 immaterial how much is due on the contract. Luke v. Johnnycnke, N. S. xii. 529. 
 
 6. Payment of part of a debt in accord and satisfaction of the whcle debt is 
 no liquidation, and an agreement to receive it as such is nudum pactum. Bliss v. 
 Shwarts, N. S. xii. 592. 
 
ACCORD AND SATISEACTION— ACCOUNT. 11 
 
 7. Part payment of a debt, concededly due, though agreed to be taken as full 
 payment, is no accord and satisfaction. Howard etal. v. Norton, N, S. xii. 656. 
 
 8 But if the amount of the debt is disputed it is. Id. 
 
 S. So is the note of a third party, or property other than money received as 
 satisfaction. Id. 
 
 10. Must be fully executed. Bragg v. Pierce, N. S. vi. 562. 
 
 1 1 . Wlien an accord is executory. Id. 
 
 12. Two partners under advice of a friend made a settlement; evidence that 
 the friend was mistaken as to some fact is not material. Thompson v. Bennett's 
 Administrators, N. S. iv. 120. 
 
 13. Not valid without performance. Schilling v. Durst, N. S. ii. 447. 
 
 14. By one of several wrongdoers, is good as to all. Merchants' Bank v. 
 Curtis, N. S. ii. 315. 
 
 15. A judgment, or any matter of record like a specialty, cannot be dis- 
 charged even by what would be considered a good accord and satisfaction ia 
 other cases. Garvey v. Jarvis, N. S. ix. 124. 
 
 16. Where a creditor actually accepts fifty per cent, of his claim in full satis- 
 faction, it is a good accord and satisfaction. Stagg v. Alexander, N. S. ix. 383. 
 
 17. Where there is no dispute between parties as to the facts, or amount of 
 claim, a receipt of less than full amount does not constitute an accord and satis- 
 faction. Beardsley v. Davis, N. S. viii. 377. 
 
 18. Agreement with third person to take less than demand, good. Babcock v. 
 Dill, N. S. T. 185. 
 
 19. Payment of less by third person and acceptance by creditor, may be 
 pleaded by debtor in satisfaction of entire demand. Id. 
 
 20. How rescinded, for fraudulent representations. Id. 
 
 21. B£^ct of payment of note given to induce creditors to sign compromise. 
 Id. 
 
 22. Between building association and "withdrawing stockholder. Miller v. 
 Building Association, N. S. T. 376. 
 
 23. Agreements to settle an existing debt by paying a part, are void for want 
 of consideration, unless soma advantage or benefit accrued to the creditor, or 
 detriment to the debtor, from the agreement other than what springs out of the 
 original contract. Molyneaux et al. v. Collier, 0. S. ii. 379. 
 
 24. Where such agreements are executory, they do not avail to discharge the 
 debt until they are executed, unless it is clear that the promise and not the per- 
 formance is agreed to be the satisfaction. Id. 
 
 25. Where A., the debtor, paid to B., the creditor, two checks, one his own 
 and one that of a third party, the mere taking of the cheeks for a pre-existing 
 debt, and without any express agreement that they should be payment, does not 
 make them payment ; and A. is liable to B. for the second check, if worthless 
 or unpaid, although it is the check of a stranger, and A.'s name does not appear 
 upon it. Mclntyre v. Kennedy, Childs S( Co., 0. S. v. 433. 
 
 26. Where one receives a mortgage to the amount of the original indebtedness 
 . as security for its payment, such original indebtedness is not thereby extinguished. 
 
 Harrison v. Pope, O. S. iv. 313. 
 
 27. Plaintiff received payment for part of injury received by railway accident : 
 Held, not satisfaction for other injuries not known. Roberts v. Eastern Counties 
 Bailroad Co., 0. S. viii. 250. . 
 
 28. Affidavit of defence set forth that on the day the note became due the 
 plaintiffs agreed to accept in full satisfaction a certain description of yarn, at a 
 specified price, to be delivered at a designated time and place, and that the yarn 
 had been ready for delivery agreeably to stipulation, and still was ready ; but 
 that the plaintiffs did not come or send for it : Held, a good defence. Christie v, 
 Craig, O. S i. 436. 
 
 29. A written contract unsealed to take fifty per cent, in full of amount due 
 given by a creditor to his debtor possesses no mutuality, and is no defence to a 
 suit for the entire demand. Webb v. Stewart, N. S. xi. 529. 
 
 ACCOUNT. 
 
 1. Where the action lies. Appleby v. Brown, N. S. ii. 58. 
 
 2. Duty of agents to render accounts Gallup v. Morrill, N. S. vii. 633. 
 
 3. Heirs may have account for what is taken away by tenant by curtesy. 
 Porch v. Fries, N S. vii. 699. 
 
12 ACCOUNT— ACCOUNT RENDER. 
 
 4. Ne exeat will be issued for certain sum actually due, or for an account 
 where some sum is due. MacDonough v, Gaynor, N. S. vii. 701. 
 
 5. Married woman, when tenant in common, husband not bonnd to account. 
 Wilcox-v. Wilcox, TS, S. vii. 127. • 
 
 6. Equity can be had, when complainants may seek account against the joint 
 owners of a guano island. Wood v. Warner, N. S. vi. 571. 
 
 7. Equity can be had, when court will compel accounting, under prayer for 
 general relief. Wood\. Brown, N. S. vi. 121. 
 
 8. Executors and administrators, one may call his co-executor to account in 
 equity. Id. 
 
 9. Creditors, legatees, and next of kin, necessary parties only to a final 
 accounting. Id. 
 
 10. Executor liable to account for assets left by heir in his hands, to pay ille- 
 gal legacies. Wells v. Mitchell, N. S. vi. 508. 
 
 11. In partnership, it is not necessary that a judgment should be first obtained 
 against the partner, before a bill in equity can be maintained for an account. 
 Deveney v. Mahoney, N. S. xii. 63. 
 
 12. An attorney-at-law, guardian of minors, can lawfully charge his wards in 
 his account, for professional services in conducting litigation for their benefit. 
 David Mumma's Account, 0. S. v. 489. 
 
 13. Under the rules of the courts of equity in Pennsylvania, a defendant may, 
 by answer, protect himself against discovery, through a denial of the complain- 
 ant's title, to the same extent as he could by plea in England ; and he is not de- 
 prived of this right by submitting, unnecessarily, to answer some of the interrog- 
 atories of the bill, against which he might also have protected himself. Perry v. 
 Kinky, 0. S. iii. 183. 
 
 14. A bill of particulars, reading I. B. toL. T. S., to timber, taken from the 
 S. W. S. T., 12 E. 22, discloses an action on an account and not one for tres- 
 pass on real estate. Bervestine v. Smith, N. S. xii. 726. 
 
 15. The habitual mode of making out an account against a bank, is evidence 
 of an agreement that it should be so made. Mosse v. Salt, N. S. iii. 439. 
 
 16. Limitation. Where the defendant has filed his account as a set-off, the 
 plaintiff may plead the statute to it. Rollins v. Horn, N. S. iii. 382. 
 
 17. In admiralty, the court will not order an account as a separate and inde- 
 pendent mode of relief. Tunno v. The Betsina, O. S. v. 406. 
 
 18. The rejection of an account, or claim against the United States, does not 
 preclude the defendant when sued from setting up such rejected claim or account 
 as a set-off. United States v. Smith, 0. S. v. 268, 
 
 ACCOUNTANT. 
 
 lUNTANT. 
 
 Duties of, defined. In re Bunting, 0. S. vii. 638. 
 
 ACCOUNT BOOKS. 
 
 1. Entries upon books of third persons. State v. Shinborn, N. S. vi. 379. 
 
 2. Requisites of such entries. Id. 
 
 3. For what a physician's book may be received. Clarke v. Smith's Exec, 'If. 
 S. vi. 120. 
 
 4. Effect of law admitting parties to testify upon admission of one party's 
 book in evidence. Id. 
 
 ACCOUNT RENDER. 
 
 1 . Auditor's report in, final, except in case of misconduct. Stewart v. Bowen, 
 N. S. V. 180. 
 
 2. Reference back, and power to rehear. Id. 
 
 3. After judgment of quod computet, confessed by defendant, he is not compe- 
 .tent witness as to amount due. Tulton v. Addams, N. S. iii. 574. 
 
 4. The dismissal of a bill in equity, is no bar to this action after a judgment 
 oi quod computet. Id. 
 
 5. Auditor should bring the account down to the time of his report. Id 
 
 6. When the proper remedy, and when to declare in assumpsit would be 
 fatal. Reeside v. Reeside, N. S. v. 247, and see Knerr v. Hoffman N. S 
 A. 541. 
 
 7. Account render is the remedy, if no balance is struck. Knerr v. Hoffman 
 N. S. X. 541. 
 
ACCOUNT STATED— ACTIONS. 13 
 
 ACCOUNT STATED. 
 
 1. What will not amount to, between principal and factor. CartwrigM v. 
 Green, N. S. vi. 435. 
 
 2. A depositor in a bank depositing a draft for collection, and his deposit-book 
 being balanced frequently without having the draft credited to him, and having 
 drawn out the balance remaining to his credit, is estopped after six years from 
 going behind the account stated. Hutchinson v. Bank, N. S. vii. 183. 
 
 ACKNOWLEDGMENT. 
 
 1. Taking an acknowledgment of a deed is a "quasi" judicial act, and cannot 
 be performed by a party interested. Hampton v. Stevens, N. S. x. 107. 
 
 2. A trustee in a mortgage or deed of trust, to hold in pledge, with power of 
 sale, &c., is so far a party in interest that he is not competent to take the ac- 
 knowledgment of the deed. Id. 
 
 3. The want of proper acknowledgment does not affect the validity of the 
 deed, but prevents it from being legally recorded. Id. 
 
 4. If a deed shows upon its face that it w^s not legally acknowledged (as 
 where the acknowledgment was taken by a party), it is not entitled to be re- 
 corded, and, though it is, in fact, entered on the records, it is not constructive 
 notice to subsequent purchasers ; but if the acknowledgment is regular on its 
 face, then it is properly recorded, and its record operates as a notice, notwith- 
 standing there may be some hidden defect. 7c?. 
 
 5. But even with a patent defect in the acknowledgment, and therefore without 
 legal record, a subsequent purchaser with notice in fact will take subject to the 
 deed. Id. 
 
 6. A deed acknowledged by the husband is entitled to record, notwithstanding 
 defective acknowledgment by the wife. Rayner v. Lee, N. S. x. 601, 
 
 7. Where a copy of a lease was duly certified to have been acknowledged before 
 a magistrate, and recorded with the mortgage under the Act of April 27th 1855, 
 respecting chattel mortgages, it was hdd, that in the absence of evidence of^ 
 fraud, and where the question was not upon the execution and delivery of the 
 lease, the certificate could not be contradicted by parol evidence. CreigUon v. 
 Ladley, N. S. vi. 359. 
 
 8. OCBcer must have legal proof of identity of person making. Jones v. Bach, 
 N. S. vii. 119. 
 
 9. The right of an officer to take an acknowledgment does not depend upon 
 the length of his acquaintance with the person, nor upon the manner in which 
 his knowledge is acquired. Wood v. Bach, N. S. ix. 123. 
 
 10. Acknowledgment by married infant void. Porch v. Fries, N. S. vii. 699. 
 
 11. Any married woman may convey real estate in the same manner as if she 
 were unmarried. Richardson v. Pulver, N. S. xii. 123. 
 
 12. A married woman may execute an instrument desiring the trustee to con- 
 vey to her and acknowledge it apart from her husband. Id. 
 
 13. The omission to read a deed to an illiterate marksman renders the ac- 
 knowledgment of no value. Suffern v. Butler, N. S. viii. 184, 
 
 14. Though two of the children were married women who did not acknowledge 
 the deed as such, it was binding on the others. Walker v. Walker, N. S. xi, 196. 
 
 15. Where the certificate of an officer loan acknowledgment of a deed appears 
 on its face to be a compliance with the statute, parol evidence to impeach it is 
 inadmissible, unless there are allegations in the pleadings to warrant it, Dolph 
 T. Barney, N. S. xiv. 748, 
 
 16. The law presumes that a person acting in a public office was regularly ap- 
 pointed to it, and also that official duty has been regularly performed. Id, 
 
 17. An executed lease of land is inoperative if the lessor's wife refuses to 
 acknowledge it, and it may be destroyed by the lessor or refused by the lessee. 
 Tatham v, Lewis, N. S. x. 539. 
 
 ACTIONS. 
 
 I. ACTIONS AGAINST NON-KESIDENTS AND ABSENTEES — Subject disCUSSCd, N. 
 
 S. vi. 1. 
 
 II. When an Action wili, lie, 
 
 1 , An action for falsely and maliciously procuring the plaintiff to be adjudged a 
 bankrupt, may be maintained^ though the affidavit before the Commissioner of 
 Bankruptcy did not show an act of bankruptcy, and the commissioner made a 
 
14 ACTIONS. 
 
 mistake, in point of law, in adjudging plaintiff to be a bankrupt. Farlie v. 
 Banks, 0. S. iii. 507. 
 
 2. An action lies for maliciously, and without probable cause, setting the law 
 of this country (England) in motion to the damage of the plaintiff, though not 
 for a mere conspiracy to do so without actual legal damage. Castriquey. Behrens, 
 N. S. i. 54. 
 
 3. But it is essential to show, in such case, that the proceeding has terminated 
 in favor of the plaintiff. Id. 
 
 4. Action on a foreign judgment, and judgment thereon for want of an aflSda- 
 Tit of defence that defendant was decoyed into the state, is no defence. Lucken- 
 bach V. Anderson, N. S. it. 252. 
 
 5. The commonwealth may maintain a civil action for its own use for dam- 
 ages against a sheriff for breach of his official bond by negligence in arresting a 
 party charged with crime, or by wilfully taking insufficient security from such 
 party for his appearance. Commonwealth v. Reed, N. S. vi. 162. 
 
 6. Right of state to bring civil action against its own officers, for neglect. 
 Note to Commonmeallh v. Ree^ N. S. vi. 162. 
 
 7. A town cannot bring suit for fraudulent pretence in obtaining a Judg- 
 ment against it, while such judgment is in full force. Hillsborough t. Nichols, 
 N. S. vi. 313. 
 
 8. Effect of conspiracy in such case. Id. 
 
 9. One primarily liable, may be sued for benefit of another secondarily liable, 
 who has paid the debt. Express Co, v. Haggard, N. S. vi. 118. 
 
 10. A statute giving an action, vests an interest in party aggrieved. Palen v. 
 Johnson, N. S. vi. 127. 
 
 11. For injury causing almost immediate death, survives to administrator. 
 Bancroft v. Railroad Co. , N. S. vi. 61. 
 
 12. Where a balance due on a contract is placed to the credit of a third person, 
 the latter cannot maintain an action for it in his own name. Robertson v. Reed, 
 K. S. iv. 252. 
 
 13. Lies immediately on refusal of a party to perform an essential part of an 
 award, though the time for performance of other parts of the award has not yet 
 arrived. Bayne v. Morris, N. S. iv. 53. 
 
 14. Whether it lies for consequences of a lawful act. Note to Morris v. Piatt, 
 N. S. iv. 532. 
 
 15. May be maintained in England in her own name by widow who has such 
 right by foreign law. Vanquelin v. Bouard, N. S. iii. 438. 
 
 16. Will lie for tort committed abroad, notwithstanding the pendency of pro- 
 ceedings in the foreign country for the same cause of action. Seymour v. Scott, 
 N. S. iii. 438. 
 
 17. An action of tort can be maintained against a person or his personal rep- 
 resentatives, for deceit in making false representations as to the solvency of a 
 mercantile firm of which he was a member. Morgan v. Skidmore, N. S. ix.261. 
 
 18. No action can be brought on a contract against public policy, whether it is 
 executory or executed. Martin v. Wade, N. S. ix. 319. 
 
 19. Arising from want of care or skill of a physician does not survive against 
 his executor. Vittum v. Oilman, N. S. ix. 516. 
 
 20. May be sustained against a justice of the peace for negligence in entering 
 a judgment. Christopher v. Fan £iew), N. S. ix. 716. 
 
 21. Will lie on promise by justice of the peace to pay all damages growing out 
 of his mistake in entering the judgment. Id. 
 
 22. Where an injury is the combined result of a defect in a highway, and 
 an accident which occurred without the fault of the plaintiff, though it deprived 
 him at the time of the injury of the pQwer of exercising the usual care and 
 prudence of a, traveller, the plaintiff is not in pari delicto, and may recover 
 from the town. Manderschied v. Dubuque, N. S. x. 526. 
 
 ' 23. Plaintiff averred that he was driving a sleigh, and his horse becoming 
 frightened and unmanageable without his fault, ran away, threw plaintiff out of 
 the sleigh, and stepping into a hole in the highway, broke his leg. Held, that a 
 good cause of action was set forth . Id. 
 
 24. An action will lie by a party holding property as security, to recover dam- 
 ages for fire from a locomotive, under R. S. c. 51, g 31, of Maine. Bean v. At- 
 lantic and St. L. Railroad, N. S. x. 531. 
 
 25. And insurers of the property may reco'ver the whole amount of injury in 
 
ACTIONS. 15 
 
 the name of the plaintiff, who assigned to them. Bean v. Atlantic ^ St. Louis 
 Railroad, N. S. x. 531. 
 
 26. On the case, for the legal part of consideration of a note. Peckes v. Ken- 
 niston, N. S. vi. 313. 
 
 27. Action on the case on an implied warranty in sale of goods. Allen y. 
 Schuchardt, N. S. i. 13, and see foot-note (2) on page 16. 
 
 28. For injury to a very young child, whilst unattended in a public street of a 
 city, not maintainable. Kreig v. Wells, 0. S. iii. 442. 
 
 29. As to right of action for an interference with a given public right. Kearns 
 T. Cordwainers' Company, 0. S. viii. 250. 
 
 30. In order to maintain an action against the collector of the port, the plain- 
 tiff must satisfy the jury that he has fully complied with all the requirements of 
 the statute, both as to form and substance. Gamble v. Mason, 0. S. vii. 178. 
 
 31 . The confidence induced by undertaking any service for another, is a suffi- 
 cient legal consideration to create a duty in the performance of it. Hammond v. 
 Sussey, N. S. xii. 114. 
 
 32. The defendant, being the teacher of a high school, undertook, at the re- 
 quest of the school committee, to examine candidates for admission to said school 
 as scholars therein, and truthfully to report to the committee concerning their 
 qualifications. The plaintiff submitted himself to such, examination and was 
 found properly qualified ; but the defendant maliciously, deceitfully and falsely 
 reported to the committee that the plaintiff was not so qualified ; by reason 
 whereof the plaintiff was excluded from the high school and deprived of its 
 benefits : Held, that the plaintiff might maintain an action on the case against 
 the teacher to recover his damages, occasioned by reason of such false and ma- 
 licious report. Id. 
 
 33. Under some circumstances the creditor of an estate may maintain an action 
 against the debtor of the estate, to collect his debt. Fisher et at. v . Hubbell et al., 
 N. S. xii. 726. 
 
 34. Will lie against conveyancer for error in judgment, and rule of liability 
 is the same as in the case of lawyers and physicians. Watson v. Muirhead, N. 
 S. viii. 310. 
 
 35. A declaration alleged that the defendant, being possessed of a horse which 
 he knew to be afflicted with glanders, caused it to be sold by auction at a horse 
 repository ; that the plaintiff, believing it to be in a healthy state, purchased it ; 
 that by reason of the disease it was worthless to him, and lie was put to expense 
 in having a veterinary surgeon to examine it ; and in consequence of its being 
 put into a stable with another horse, that horse became infected and died, and the 
 plaintiff was put to expense in endeavoring to cure it : Setd, that this declaration 
 disclosed no ground of action, either at common law or under the 16 & 17 Vict. 
 c. 62. Hill V. Balls, O. S. vi. 162. 
 
 36. The mere fact of selling a glandered horse is not an illegal act, either at 
 common law or under the 16 & 17 Vict. c. 62. Id. 
 
 37. A sealed instrument in these words : " Due A. $1071, for value received, 
 which I hereby promise to pay whenever, in my opinion, my circumstances will 
 be such as to enable me so to do," does not create any legal obligation which 
 can be enforced by action, nor will it support a narr. alleging a promise by the 
 obligor to pay " whenever his circumstances were such," &c., with an averment 
 of ability to pay. Nelson v. Von Bonnhorst, 0. S. vi. 151. 
 
 38. An action will lie against a local board of health of a corporate district, 
 under 1 1 & 12 Vict. c. 63, as a body, for negligently carrying out works within 
 their powers so as to cause injury to any person ; e. g., for so negligently and 
 improperly constructing a sewer as to cause a nuisance by its discharge. The 
 Company nf Proprietors, §-c., v. Board of Health of Southampton, 0. S. vii. 509. 
 
 39. No action lies to recover excessive freight paid to a railroad, in the absence 
 of any duress, fraud or extortion. Potomac Coal Co. v. C. ^ R. Railroad, N. S. 
 xiii. 191. 
 
 40. No action lies to recover money voluntarily paid, even if the party sup- 
 posed he was bound in law to pay it. Lafayette ^ Indianapolis Railroad v. Patti- 
 gon, N. S. xiii. 252. 
 
 41. Money paid under duress, either applied to property or the person, may be 
 recovered. Id. 
 
 42. A person whose horses, frightened by a locomotive, became uncontrollable, 
 ran away with him, went upon land of another, and broke a post there, is not 
 
16 ACTIONS. 
 
 liable for the damage if it was not caused by any fault on his part. Brown r. 
 Collins, N. S. xiii. 364. 
 
 43. Where debtor alleges that he transferred notes and mortgages to his 
 creditor to collect them and pay himself, and hand over surplus, and that there 
 is a surplus, an action at law is stated and not one in equity. Dickson r. Cole, 
 N. S. xiii. 587. 
 
 44. A party declining to accept payment except in a way to which he is not 
 entitled, cannot insist that the action is prematurely brought. Macky y. DiU 
 linger, N. S. xiii. 389, 
 
 45. Threats of bodily hurt which occasion such inconvenience as to produce 
 pecuniary damage, are actionable. Crimes v. Gates et ux., N. S. xiii. 645. 
 
 46. A mere fear is not sufficient. Id. 
 
 47. Where threats are made by letter it is only necessary to set out the sub- 
 stance of the threats. Id. 
 
 48. Where plaintiff was induced to buy a patent-right, by the false and 
 fraudulent representations of defendant, an action on the case will lie. Somers 
 T. Richards, N. S. xiii. 773. 
 
 49. The breaking of plaintiff's axle from an insufficient highway, whereby his 
 horse was startled, ran away and was killed, is but one ground of action. 
 Hodge V. Town of Bennington, N. S. xi. 50. 
 
 50. No action lies for simply conspiring to do an unlawful act. Kimball v. 
 Harman, N. S. xi. 54. 
 
 51. An action, which if done by one, constitutes no ground of an action on 
 the case, cannot be made the ground of such action by alleging it to have been 
 done by a conspiracy of several. Id. 
 
 52. No action will lie to recover back money voluntarily paid. Await v. 
 Eutaw Building Asso., N. S. xi. 63. 
 
 53. A promise upon a valuable consideration, to pay money to a third person, 
 will sustain an action by the latter against the promissor. Hally, Robbins, N. S. 
 xi. 261. 
 
 54. A party who purchases goods from a judgment-debtor, and thereby assists 
 him to defeat his creditor's lien, is liable to the creditor in an action on the case- 
 Powers V. Wheeler, N. S. xiv. 52. 
 
 55. Action for deceit will not lie for any misrepresentations as to cost or value 
 of a patent right. Bishop v. Small, N. S. xiv. 395. 
 
 56. A telegraph company setting posts in an improper manner along a high- 
 way is liable to an individual suffering damage thereby, or by suffering the same 
 to fall or be out of repair. Dickey v. Telegraph Co., O. S. viii. 358. 
 
 57. Telegraph companies must transmit the messages just as they are delivered 
 to them ; they are liable for loss that may ensue by wrong transmission. Tele- 
 graph Co. V. Dryburg, 0. S. viii. 490. 
 
 58. Action by servant against master for injuries received while in his employ- 
 ment : see Dynen v. Leach, 0. S. v. 74 5 ; Roberts v. Smith, 0. S. v. 750 : Nones 
 y. Smith, 0. S. V. 6\5. " 
 
 59. Action for seduction, see Parker v. Meek, 0. S. v. 493. 
 
 60. A landowner may maintain an action against a town for not keeping the 
 highway in a suitable manner. Oilman v. Laconia, N. S. xiv. 704. 
 
 61. Case will not lie for arrest and imprisonment in a judgment merely void- 
 able but not void. Kimball v. Toum of Newport, N. S. xiv. 757. 
 
 62. An action may be brought on an implied warranty witliont rescinding the 
 contract. Hurst v. Sackett, N. S. xiv. 262. 
 
 63. The throwing of smoke and cinders from a railroad engine moving upon 
 its track, upon residence property, constitutes a direct physical injury for which 
 the plaintiff may recover. Stone v. Railroad Co., N. S. xiv. 74. 
 
 64. An agreement under seal to submit to arbitration, and a guarantee by a 
 third person not under seal that one of the parties shall abide the award cannot 
 be sued upon in the same action. Walles v. Carpenter, N. S. vii. 119. 
 
 65. B. and C. gave joint note to A. for land ; C. conveyed his interest to B. ; 
 action for money had and received lies by A. against B. for the whole amount. 
 Woodbury y. Woodbury, N. S. vii. 318. 
 
 66. Subscribing to stock of incorporated association creates personal liability 
 to raise the proper proportion of the capital. Mining Co. v. Lew N S vif 
 312. J. • • ! 
 
 67. Purchaser from insolvent debtor with knowledge of intention to defraud 
 
ACTIONS. 17 
 
 particular creditor, is liable for such part of tho purchase-money as the debtor 
 has diverted from his creditors, Clements y. Moore, N. S. vii. 378. 
 
 68. Money paid to broker for substitute who proves to be a deserter may be 
 recovered in action for money had. Lebanon v. Heath, N. S. vii. 315. 
 
 69. In action for writing a threatening letter, loss or inconvenience must be 
 direct result of the letter, and be more than mental suffering. Taft v. Taft, 
 N. S. vii. 636. 
 
 70. Action under Pennsylvania Insolvent Act suspended by Bankrupt Act of 
 1867. Commonwealth Y O'Sara, N. S. vi. 76.T. 
 
 71. Assignees of foreign bankrupt may sue in U. S. courts for property of 
 their bankrupt. Sunt v. Jackson, N. S. vi. 169. 
 
 72. Holder of a note drawn with a contingency, but negotiable, may sue in his 
 own name. Sniilie v. Stevens, N. S. vi. 713. 
 
 73. Action of deceit for false afSrmation of quantity of land and crop. Coon 
 T. Atwell, N. S. vi 378. 
 
 74. Non-residents and absentees, actions against — subject discussed, N. S. 
 vi 1. 
 
 75. To build a house in a certain time not excused by reason of a latent defect 
 in the soil ; action on such contract. Dermott v. Jones, N. S. iv. 504. 
 
 76. Action will lie for compensation for services after chartering and before 
 organization of corporation. Low v. Railroad Co., N. S. iv. 438. 
 
 77. Action does not lie by one stockholder against another to enforce personal 
 liability for debt of corporation. Richardson v. Ahendroth, N. S. iv. 764. 
 
 78. A record showing nonsuit is no bar to second action. Audubon v. In- 
 surance Co., N. S. iv. 182. 
 
 79. Suit for portion of a demand, or one of several demands arising out of 
 same transaction, is a bar to subsequent suit for the residue. Corwin v. Wallace, 
 2Sr. S. iv. 446. 
 
 80. Parol proof as to identity of cause of action. Hall v. Jones, N. S. iv. 
 440. 
 
 81. No action lies on false oral assurance of the credit of a corpor.ation by the 
 treasurer. McKinnei/ y. Whiling, N. S. iv. 187. 
 
 82. Effect on summary proceedings for possession by the notice to quit being 
 given only by two of three joint lessors. Pickardv. Perley, N. S. iv. 442. 
 
 83. Acknowledgment to avoid the statute must be clear, but may be made 
 more than six years after original cause of action accrued. Yaw v. Kerr, N. S. 
 iv. 443. 
 
 84. For goods sold to married woman on her individual credit, though vendors 
 are ignorant of her coverture, husband not liable. Goulding v. Davidson, N. &. 
 iii. 34. 
 
 85. Whether married woman is liable civilly when she fraudulently represents 
 herself as sole. Id 
 
 86. Actions under statutes providing for wife's separate estate : note to Emerson 
 V. Clayton, N. S. iii. 533. 
 
 87. Married woman in New York may maintain an action in her own name. 
 Paine v. Hunt, N. S. iii. 252. 
 
 88. Actions on policies of insurance, effect of clause limiting time for com- 
 mencement of suit after loss. Insurance Co. v. Hall, N. S. iii. 417, and see Mor- 
 rell V. Insurance Co., N. S. iii. 404. 
 
 89. The plea of lis pendens in another state is no defence. Smith v. Lathrop, 
 N. S. iii. 107, 
 
 90. An action for excess of usurious interest under statute does not take away 
 the right to an action at common law. Porter v. Mount, N. S. iii. 493. 
 
 91. A party may maintain an action for relief. Wisconsin Imp. Co. v. Lyons, 
 N. S. xii. 196. 
 
 92. No action will lie for distraining for more rent than is due and in arrear. 
 Hamilton v. Windolf, N. S, xii. 286. 
 
 93. The plaintiff is not estopped in an action for malicious prosecution 
 for false arrest, by having paid, under protest, a portion of the claim for which 
 he was arrested. Morton v. Young, N. S. viii, 187. 
 
 94. A party who has been in the exclusive adverse possession of lands, may 
 maintain an action against a party claiming under a record title, Arrington v. 
 Liscomb, N. S. viii. 123, 
 
 2 
 
18 ACTIONS. 
 
 95. The vendee is entitled to an action for non-delivery. Camp r. NoHon, 
 N. S. viii. 319. 
 
 96. To prevent a tenant from committing waste, an action will lie to recover 
 damages by the remainderman. McCat/ v. Wait, N. S. viii. 191. 
 
 97. An action for injury to real estate does not survive to an administrator. 
 Forist V. Androscoggin R. L Co., N. S. xiii. 50. 
 
 98. Defendant "hired a horse on Sunday, and caused the death of the horse by 
 overdriving : Seld, that plaintiff could recover in trover, notwithstanding statute 
 prohibited secular business on that day. Frost v. Plumb, N. S. xiii. 537 ; but 
 see post, pi. 112. n • * 
 
 99. An action on the case founded in tort lies, see Phila., W. Sf B. Railroad 
 Co. v. Cousle, N. S. xiii. 784. 
 
 100. In cases where a petition does not statB facts sufScient to constitute a 
 cause of action, see Clough v. Sort, N. S. xi. 95. 
 
 101. A citizen of the kingdom of Great Britain may bring an action against 
 a person not a resident of the sta-te (Massachusetts), where process is served per- 
 sonally on defendant. Peabody v. Hamilton, N. S. xi. 311. 
 
 102. No action lies against the trustees of a village on contracts made beyond 
 the scope of their authority. Gale v. Kalamazoo, N. S. xi. 286. 
 
 103. When a person sustains an injury from a public nuisance, he may bring 
 an action therefor. Venard v. Cross, N. S. xi. 334. 
 
 104. An action on the case sounding in tort may be maintained by one tenant 
 in common against his co-tenant. McLdlan v. Jenness, N. S. xi. 134. 
 
 105. Actions on wagers, see Winchesters. Nutter, N. S. xiii. 53, nxii. Knight 
 V. Cambers, O. S. iii. 639. 
 
 106. Wiiere noxious vapors are found a nuisance, plaintiff may have in- 
 junction, though not damaged. Smelting Co, v. Tipping, N. S, v. 104. 
 
 107. Damages from defective highway — as to defence that plaintiff was driving 
 faster than ordinance allowed. Baker v. City, N. S. x. 559, 
 
 108. Actions by stockholders, Houie v, Denel, N. S, v, 124. 
 
 109. A receiver appointed by the Circuit Court of the United States may sue 
 in an Ohio state court. Railroad Co. v. Railroad Co., N. S, v, 733. 
 
 110. If the purchase of the land was induced by a false and fraudulent repre- 
 sentation as to the quantity of land, the grantee may sustain an action on the 
 case against the grantor for the fraud. Cabot v, Christie, N, S. ix. 647, 
 
 111. A private soldier of the rebel army may rely upon the belligerent rights 
 conceded to the late so-called Confederacy, as a defence in a civil suit, for 
 property taken according to the usages of war, Hughes v. Litsey, N. S, v, 148, 
 
 112. Travelling on highway in violation of statutes for observance of the 
 Sabbath may be proved in defence to action for injury from defective way. 
 Jones V, Andover, N. S, v. 382, 
 
 113. The remedy of seamen in every proper case is not confined to the ad- 
 miralty, but may be pursued in the state courts, Mosely v, Scott, N. S. v, 
 599. 
 
 1 14. A municipal corporation is not liable in a civil action to a private property 
 owner for failure to provide sufiicient sewerage to drain his lot. Mills v, Brook- 
 lyn, N. S, V. 33. 
 
 115. Distinction between discretionary or quasi judicial duties and those merely 
 ministerial. Id. 
 
 116. Substitute deserting cannot recover amount contracted for with principal, 
 although latter has been relieved from service, Ganqler v. Price's Adm'r.. N. 
 S. V, 59. 
 
 117. Trespass vi et armis will lie for damages occasioned by accidental injury. 
 Welch V, Durand, N. S, x, 566. 
 
 118. A landowner may recover where his land is unnecessarily damaged in 
 the construction of a railroad, in an action for damages as at common law. Terre 
 Haute 4r /. Railroad Co. v. McKinley, N. S. x, 748, 
 
 119. An owner of real estate is not without a remedy for injuries done to the 
 ■Same, simply because he is not at the time in possession. Fitzpatrick v. Gebhart, 
 N. S. X. 668. 
 
 120. The remedy for fraud is an action against the guilty agent. Leech r, 
 Caldwell, N. S. v. 280, 
 
 121. An infant may maintain an action by his mother on an express contract 
 after his father's death, Boynlon v. Clay, N. S. x, 603. 
 
ACTIO]S"S. 19 
 
 122. An action lies at common law in a free state by the owner of a fugitive 
 slave, against one who knowingly harbors and conceals the latter ; and the Act 
 of Congress of 1793 has not destroyed this right. Van Meter v. Mitchell, 0, S. 
 ii. 279. 
 
 123. An action of tort will lie for property wrongfully converted by a mort- 
 gagor in a chattel mortgage. In re Hicks, N. S. x. 476. 
 
 III. Pleading, and herein op Joinder and Misjoinder of Parties and 
 Counts. 
 
 124. Declaration containing common money counts cannot be amended by 
 addingspecial count upon a lease for damages for not carrying on farm properly. 
 O'Btirt V. Kimie, N. S. vii. 250. 
 
 125. Complaint on express agreement will be sustained by evidence of an im- 
 plied, in New York. Smith v. Lippincott, N. S. vii. 570. 
 
 126. Plaintiff need not prove all the allegations of the declaration, if less 
 will constitute cause of action. Suiners v. Richards, N. S. iii. 773. 
 
 127. A father who sues in assumpsit to recover for the services of a minor son, 
 cannot, after discontinuing such suit, bring an action on the case for enticing away 
 and harboring the son. The suit in contract is a waiver of the tort. Thompson 
 V. Howard, N. S. iv. 590. 
 
 128. After electing his remedy, he must abide by it. Id. 
 
 129. When maintainable by some without joining all parties to written agree- 
 ment. Railroad Co. v. Titus, N. S. t. 184. 
 
 130. If damage results from joint action of several parties not acting in combi- 
 nation, may have action against one without joining all. Wheeler v. Citij, N. 
 S. V. 575. 
 
 131. The objection of non-joinder goes only to damages. Id. 
 
 132. Properly brought by the name by which plaintiff was generally known, 
 though changed in infancy. Cooper v. Burr, N. S. v. 572, 
 
 133. Misjoinder of parties to action; see Mann and Wife v. Marsh, N. S. i. 
 379, and Williams and Wife v. Coward and Wife, 0. S. vi. 315 ; Sa7ne v. Same, 
 0. S. ii. 510. 
 
 134. Misjoinder of counts ; see Fuller andWife v. Railroad Co., 0. S. i. 567. 
 
 135. Rent under a written lease not recoverable on a count for use. Warren 
 V. Ferdinand, N. S. iv. 765. 
 
 136. Joinder of complaints for contract and tort in New York. Fhjnn v. 
 Bailey, N. S. vii. 638. 
 
 137. For tort of wife committed by order of husband, he is alone liable. 
 Goulding v. Davidson, N. S. iii. 34. 
 
 138. Administrator may sue in his own name for intestate's goods sold by him. 
 Aiken v. Budgman, N. S. v. 315. 
 
 139. An agreement, under seal, to submit to arbitration, and a guaranty by a 
 third person, not under seal, that one of the parties shall abide the award, can- 
 not be sued upon in the same action. Wallis v. Carpenter, N. S. vii. 119. 
 
 140. Where a discharge by certificate in bankruptcy is pleaded, evidence can- 
 not be received to contradict the declaration and to show that no cause of action 
 really exists as is therein set forth. In re Devoe, N. S. vii. 690. 
 
 141. Pendency of another action in relation to same matter. Marshall v. 
 Goadby, N. S. iii. 438. 
 
 IV. When Assignable. 
 
 142. Right to recover damages for fraudulent conversion of property by officer 
 of a bank is assignable. Grocer's Bank v. Clark, N. S. vi. 774. 
 
 143. For wrongfully raising ore from land in another state and selling and 
 converting proceeds, is assignable. Hoy v. Smith, N. S. vii. 570. 
 
 V. Election of Actions. 
 
 144. In order to avoid multiplicity of suits, the law compels all claims arising 
 out of the same contract, and due at the time of bringing suit, to be included in 
 one action. Reformed Church v. Brown, N. S. ix. 190. 
 
 145. Where one has unlawfully taken possession of another's property, the 
 tort may be waived and an action brought for its value. Such a case of action 
 is assignable. Hawk v. Thorn, N. S. ix. 198. 
 
 VI. Where Titles to Land may be inquired into in a Personal Action. 
 
 146. Will not lie to compel one to render an account and to reconvey real 
 
20 ACTIONS— ACTS OF ASSEMBLY. 
 
 estate which he holds under a conveyance made to defraud creditors. Sioeet y. 
 Tinslar, N. S. viii. 438. 
 
 147. The owner of land who has directed an agent to erect a house at a par- 
 ticular place thereon, cannot maintain an action against a third person, who, by 
 false representations as to the true boundary line of the land, has induced such 
 agent, in the owner's absence, to erect the house at different place. Silver v. 
 Frazier, N. S. i. 504. 
 
 148. If the creditor releases a mortgage-debt received as collateral, having 
 taken a conveyance of the land without the debtor's consent, he is liable to 
 account to him for the amount. Dicken v. Cole, N. S. xiii. 587, 
 
 149. The licensee of land is liable in an action to the licensor for injujties 
 resulting to cattle from his negligence. Eaton v. Winnie, N. S. x. 510. 
 
 150. An action of deceit will not lie for breach of a promise to execute a bond 
 to reconvey real estate where the promissor induced the plaintiff to convey to him 
 in consideration of a loan and such promise. Long\. Woodman, N. S. x. 601. 
 
 151. Under oral agreement for exchangeof lands, action should be for price or 
 value against party failing to convey. Basford v. Pearson, N. S. v. 124; 
 Smith V. Hatch, N. S. v. 698. 
 
 VII. How FAR Action is affected bt former Judgment. 
 
 152. Decree dismissing bill not on merits, no bar to subsequent action. 
 Hughes V. U. S., N. S. vi. 635. 
 
 153. Pendcnev of another action in relation to same matter. Marshall v. 
 , Goadby, H. S. iii. 438. 
 
 VIII. Revival of Action. 
 
 154. Supplemental complaint to revive action, in New York, is a matter of 
 right. Eoach v. La Farge, N. S. v. 191. 
 
 IX. Power and Liability of Attorneys. 
 
 155. As to power of attorney to settle suit and discharge defendant. Derwort 
 V. Isomer, 0. S. i. 479. 
 
 156. Liability of attorney to third parties, for money received by him and paid 
 to his client. Cosligan v. Newland, 0. S. i. 30. 
 
 X. Wagees. 
 
 157. Actions on wagers. See Winchester v. Nutter, N, S. xiii. 53, and 
 Knight v. Cambers, 0. S. iii. 639. 
 
 1.58. Either depositor of a bet on a race, may maintain an action against the 
 stakeholder for the deposit, before the race. Cleveland v. Wolf, N. S. x. 403. 
 
 ACTS OF ASSEMBLY. 
 Georgia. 
 
 1 . 1809, 5th sect. ; 1823, 3d sect. ; declared to be unconstitutional and void, on 
 the ground that they contain matter different from what is expressed in the titles 
 of the acts to which they respectively belong, Prothro ^ Kendall v. Orr, 0. S. 
 i. 612. 
 
 2. 1840, 1847, 1849. Advantage cannot be taken of non-user or misuser of 
 an act of incorporation in any collateral action. C/iu'on Branch Railroad v. Ten- 
 nessee Sf Georgia Railroad, 0. S. ii. 303. 
 
 _ 3. Every affirmative statute is a repeal by implication of a precedent affirma- 
 tive statute, so far as it is contrary thereto. Id. 
 
 4. A corporation can have no legal existence out of the sovereignty by which 
 it is created; but its existence as a person capable of contracting may be recog- 
 nised in another state, and as such it may be there contracted with. Id. 
 
 Indiana. 
 
 5. 1853, March 1. An act to provide compensation to the owners of ani- 
 mals killed or injured by the ears, locomotives, or other carriages, on any 
 railroad company in this state. Madison &■ Indianapolis Railroad v. Whiteneck 
 0. S. V. 214. ' 
 
 Kentucky. 
 
 6. 1850, March 4. The Maysville and Lexington Railroad Co. was chartered. 
 The city of Maysville was authorized to subscribe stock and to become a stock- 
 holder to the amount of $150,000. Graham and Knox v. The City of Maysville, , 
 Wm. Maddox and others, 0. S. vi. 589. 
 
ACTS OP ASSEMBLY. 21 
 
 Maryland. 
 
 7. 1809. Sect. 2 declares that application for habeas corpus may be made 
 " to the chancellor, or judge of the Court of Appeals, or of the county courts, 
 in vacation time." Walsh's Case, 0. S. ii. 542. 
 
 8. 1853. Confers upon the Circuit Courts and their judges such power only 
 as the county courts or the Cou^t of Chancery, while in session in term time, 
 could have and exercise, and that in this particular it does not in effect repeal 
 the Act of 1809. Id. 
 
 Michigan. 
 
 9. 1853. Whether "An act prohibiting the manufacture of intoxicating 
 beverages and the traiHc therein" was constitution ally in force. People v. 
 Collins, S ii. 591. 
 
 Mississippi. 
 
 10. 1833. Legislature chartered the Grand Gulf Railroad and Banking Co., 
 ■with power "to purchase personal estate and sell the same : subsequent act pro- 
 hibiting any bank from transferring by endorsement any notes, &c., held to 
 apply to that bank and to be constitutional, Murdoch v. Brown, 0. S. vi. 690. 
 
 11. 1839 The statute of Mississippi secures to a married woman certain 
 property in her own right, for a limitation of the marital rights of the husband. 
 Lijon V. Knott, 0. S. ii. 604. 
 
 12. 1840. Legislature enacted that it should not be lawful for any bank in 
 the state to transfer, by endorsement, any note, &c , and in action on such note, 
 the fact of transfer might be pleaded in abatement, Murdoch v. Brown, 0, S. 
 vi. 690. 
 
 New Jersey. 
 
 13. With regard to the proprietors of the bridges over the rivers Passaic 
 and Hackensack, and the agreements made thereunder with respect to those rivers. 
 minor V. New Jersey Railroad Co., 0. S. vi. 6. 
 
 New York. 
 
 14. 1849. The Free School Act, under the provisions of which certain dis- 
 trict school taxes were levied, is unconstitutional and void, Bradley v. Baxter, 
 O. S. i. 658. 
 
 Omo. 
 
 15. 1850, March. Provides that no person offered as a witness, shall be ex- 
 cluded by reason of his or her interest in the event of the action. Lawson and 
 Couode V. ^Farmers' Bank of Salem, 0. S. i. 617. 
 
 16. 1857, March 14. If the construction of a state statute has been settled by 
 the decision of the highest court of the state, the courts of the United States uni- 
 formly adopt such construction. Cooledge and Durbarrow y. Curtis, 0. S. vii. 
 334. 
 
 Pennsylvania. 
 
 17. 1704, April 22. Sunday law. Commonwealth v. Johnston, 0. S. v. 
 27, 85. 
 
 18. 1780. A slave carried into Pennsylvania with her owner's consent, and 
 residing m that state for a period of more than six months, with the full know- 
 ledge on the part of the owner, is entitled to her freedom. Ferry v. Street, 0. S. 
 i. 295. 
 
 19. 1789. Admiralty and maritime jurisdiction, possessed by the District 
 Courts of United States under the Constitution and this act, is independent of 
 the Act of 1845. Fox v. The Revenue Cutter, 0. S. viii. 459. 
 
 20. 1803-1818. The Board of Wardens of the port of Philadelphia have juris- 
 diction to authorize the construction of wharves, &c., in the river Delaware, as 
 far north as the mouth of Frankford creek. Franhford v. Lennig, 0. S. i. 357. 
 
 21. 1843-1849. A judgment confessed, or conveyance made for an antece- 
 dent debt by a debtor in insolvent circumstances, and in contemplation of an as- 
 signment with intent to evade the Act of 1843, in regard to preferences in assign- 
 ment, is not avoided by the proviso in the Act of 1849, where the creditor had no 
 knowledge of, nor participated in, the unlawful intent. Hutchinson v. McClure, 
 O. S. i. 170. 
 
 22. 1848, April 11. A married woman is not authorized to enter into any 
 suretyship, or transfer her separate personal estate for the payment of her hus- 
 band's debts, nor is the husband authorized to mortgage the wife's estate, except 
 in the mode prescribed by the act, which must be strictly pursued. Williams' 
 Executor v. Stoops, O, S. iv. 1 58. 
 
22 ACTS OF ASSEMBLY— ACTS OF CONGRESS. 
 
 23. 1848, April 11. The property of a married woman is absolutely rested 
 in herself. 
 
 24. IS.'JI, April 12, Authorizes the connty of Washington to subscribe to 
 the stock of Ihe Ileinpfield Railroad, and to issue, in payment for the subscrip- 
 tion, the bonds of the county, is not a violation of either the constitution of the 
 state or of the United States'. McCoy v. County of Washington, O. S. vii. 193. 
 
 25. 185.5, April 26. The damages to which parents are entitled for produc- 
 ing the death of their son, are to be estimated by the pecuniary value to them of 
 his services during his minority, together with the expenses of care and attention 
 to the deceased arising out of injury, funeral expenses and medical services, it 
 any. Penna. Railroad v. Zehe, O. S. viii. 27. _ 
 
 26. 1855. Provides a remedy in case of death by violence or negligence. Can 
 only be maintained by the husband, the widow, the parents and the children. 
 Coakley v. North Penn. Railroad, 0, S. vi. 355, 
 
 27. 1857, May 16, Exempting from taxation declared unconstitutional. 
 Mott V. Penna. Railroad, O. S. v. 623. 
 
 28. Art. 1, sect. 13; Art. 9. sects. 1, 10 and 11 of Constitution eonstrned. 
 Sharpless v. Mayor, 0, S. ii. 27, 85, 
 
 ACTS OF CONGRESS. 
 
 1. 1789. See Index to O. S. viii., tit. Admiralty Jurisdiction. 
 
 2. 1789, sect. 25. A cause can be removed from a state court in the Supreme 
 Court of the United States whenever a question arising under this section is relied 
 on, Furman v. Nichol, N. S. ix. 57. 
 
 3. 1789, sect. 14. This section does not authorize United States court to 
 issue a habeas corpus unless in aid of jurisdiction in a case then pending. Ex 
 parte Evarts, 0. S. vii. 79. 
 
 4. 1789, sect. II. United States Circuit Court has no jurisdiction under this 
 section to issue habeas corpus for the custody of a child, although the father is a 
 citizen of another state, as the matter in dispute has no pecuniary value. Id. 
 
 5. 1789, sect, 17, As to power of United States courts to punish for contempt. 
 See Ex parte Robinson, N. S, xiii. 435, 
 
 6. 1789, sect. 14 of Judiciary Act, Petition for habeas corpus under this act 
 refused. Note to Ex parte McCann, N. S. v. 158. 
 
 7. 1789, sect. 12. The words "original process, " used in this section, in- 
 clude any mesne process issuing out of state court by which the property is seized 
 before the case is removed into United States court. Id. 
 
 8. 1789, sect. 11, Removal of causes from state court to Federal court, and 
 what is comprehended in the word " suit " in the meaning of that section. Bar- 
 ney V. Globe. Bank, N. S. ii. 221. 
 
 9. 1789, Sept. 24, sect. 14. The construction and interpretation of this act. 
 See McDonald's Case, 0. S, ix. 661, 
 
 10. 1789, The District Courts of the United States, upon whom the admiralty 
 jurisdiction was exclusively conferred by the Judiciary Act, can take cognisance 
 of all civil causes of admiralty jurisdiction upon the lakes and waters connecting 
 them, the same as upon the high seas, bays and rivers navigable from the sea. 
 The Eagle, N. S. ix. 55. 
 
 11. 1789. Suit against U. S. marshal for wrong levy is not necessarily 
 against him as marshal, and hence not necessarily within the 25th section of the 
 Judiciary Act. Day v. Gallup, N. S. iv. 504. 
 
 12. 1789. See Index to N, S. iv., tit. Courts, 
 
 13. 1789, sect. 11. The Federal courts are excluded from jurisdiction of 
 suits on bonds issued to citizen of same state of obligor. Clarke v. City of 
 Janesville, 0. S. iv. 591. 
 
 14. 1789. A return to a writ of habeas corpus issued by a judge of the 
 United States, showing an imprisonment under process, legal and valid on its 
 face, is conclusive, and precludes further inquiry into the cause of imprisonment. 
 Ex parte Sifford, Marshal, et al., O. S, v. 659. 
 
 15. 1789, Sept. 23, sect. 9. The jurisdiction of the District Courts of the 
 United States is exclusive, except where the common law is competent to give a 
 remedy. Trevor v. Steamboat Hine, N, S, vi. 586. 
 
 16. 1789. History of admiralty jurisdiction of United States courts. Id. 
 
 17. 1790, April 30. See Index to 0. S. viii. tit. Indictment. 
 
 18. The remedy in matters connected with fugitive slaves is to be found under 
 
ACTS OF CONGRESS. 23 
 
 Acts of Cotigress, find in the courts of the United States. Rodney v. The Illinois 
 Central Railroad, 0. S. vi. 439. 
 
 19. 1790, May 26. Authuntification of records from sister states. State of 
 Ohio V. Hinchman, 0. S. v. 424. 
 
 20. 1790, May 26. See Index to N, S. xii. tit. Courts, 3. 
 
 21. 1790, July, chap. 29, sect. 9. See Index to 0. S. ix. tit, Makitime 
 Law. 
 
 22. 1792, May 8. See Index to 0. S. viii. tit. Massachusetts. 
 
 23. 1793, 1850. See Index to O, S. i. tit. Fugitive Slaves, and Index to 
 O. S. ii. tit. Construction of Acts of Congkess. 
 
 24. 1793, March 2, See Index to N. S. vii. tit. Bankruptcy. 
 2.'i. 1799. See Index to N. S. iii. tit. Prize. 
 
 26. 1799, March 2. See Index to N. S. v. tit. Customs, 7. 
 
 27. 1800. See Index to N. S. iii. tit. Prize. 
 
 28. 1802, April 14. See Index to N. S. xi. tit. Courts, 4. 
 
 29. 1807, March 3. See Index to N. S. x. tit. Ejectment. 
 
 30. 1818, April 20. See Index to 0. S. viii. tits. Constitutional Law 
 and Indictment. 
 
 31. 1825, March 3. See Index to 0. S. ix. tit. Post Office. 
 
 32. 1828, May 12. See Index to N. S. vii. tit. Bankruptcy, 2. 
 
 33. 1831, March 2. See Index to 0. S. vi. tit. Contempt. 
 
 34. 1831, March 2. See Index to N. S. xiii. tit. Attorney, 4. 
 
 35. 1831, March 2. As to power of United States courts to commit for con- 
 tempt, see Ex parte Robinson^ N. S. xiii. 435. 
 
 36. 1833, March 2. 7th sect, authorizes any judge of the United States to 
 issue the writ of habeas corpus where an officer of the United States is impri- 
 soned " for an act done, or omitted to be done, in pursuance of a law of the 
 United States." Ex parte Robinson, Marshal, 0. S. iv. 617, 
 
 37. 1833, March 2, sect. 7. The construction and interpretation of this act, 
 see McDonald^ s Case, O. S. ix. 661. 
 
 38. 1833, March 2. 7th sect, expressly confers on a judge of the United 
 States the power to issue the writ of habeas corpus in all cases of imprisonment 
 by any authority of law for any act done or omitted, in obedience to a law of the 
 United States, Ex parte Sifford, Marshal, et al., 0. S. v. 659, 
 
 .39. 1833, March 2. See Index to 0. S. ix. tit. Habeas Corpus, and Index 
 to N. S. ix. tit. Internal Revenue, 4. 
 
 40. 1833. See Index to N. S. vi. tit. Office. 
 
 41. 1839, March 3. Mode of recovering excess of duties or estimated duties 
 under this act, and subsequent acts, considered. Sturges v. The United States, 
 O, S. iv. 335. 
 
 42. 1839, February 28, See Index to N. S, viii. tit. Courts, 15, 
 
 43. 1841, August 19. See Index to N. S. ix. tit. Bankruptcy, 3, and Index 
 to N. S. ii. 1. 
 
 44. 1841, September 4. See Index to N. S. xi. tit. Vendor and Pur- 
 chaser, 10. 
 
 45. 1842, See Index to 0, S. vii. tit. Takipp, 
 
 46. 1842, August 3. See Index to N. S. ix. tit. Office and Officers. 
 
 47. 1842. Petition for habeas corpus under this act refused. Ex parte 
 McCann, note to N, S, v, 158. 
 
 48. 1845, February 2.'?. See Index to 0. S. viii, tit. Jurisdiction, 
 
 49. 1845, February 26, Mode of recovering excess of duties or estimated 
 duties, under this and other acts, considered. Sturges v. The United States, O. S. 
 iv. 335. 
 
 50. 1845. State courts and United States courts have concurrent jurisdiction 
 of maritime torts on navigable rivers, Trevor v. Steamboat Hine, N. S. iv. 436. 
 
 51. 1845, February 26, See Index to N, S. iv. tit. Admiralty, 2, and Index 
 to N, S. viii, tit. Internal Revenue. 
 
 52. 1845, February, See Index to N, S, ix. tit. Shipping, 5. 
 ■ 53, 1846, See Index to O, S, vii, tit. Tariff. 
 
 54. 1846, August 6. See Index to N. S. yii. tit. Office, 4. 
 
 55. 1848, February 22. See Index to N. S. ix. tit. Courts, II. 
 
 56. 1750, July 29! See Index to N. S. vii. tits. Mortgage, 43, and Ship- 
 ping, 5, and Index to N. S. iii. tit. Shipping, 4, 5, and Index to N. S, ix. tit. 
 
24 ACTS OP CONGEESS. 
 
 Shipping, 6, and Index to N. S. v. tit. Execution, 15, and Index to N. S. 
 viii. tit. Vessels, 2. 
 
 57. 1850, September 18. See Index to 0. S. viii. tit. Indictment. 
 
 58. 1850, September 28. See Index to N. S. iii. tit. Swamp Lands. 
 
 59. 1850. See Index to 0. S. vi. tit. Lien. 
 
 60. 1850. The Fugitive Slave Act. To sustain the allegations of aiding or 
 abetting in the escape of slaves, under the Act of 1850, it must appear that the 
 alleged fugitives were slaves who had escaped from service, and had been arrested 
 by the owner or his agent ; and that the defendant, with knowledge of these 
 facts, aided and abetted their escape. Weimer v. Shane, 0. S. iv. 174. 
 
 61. The statute authorizes an arrest with or without a warrant, either by the 
 owner or his agent acting under a written power of attorney duly authenticated. 
 Id. 
 
 62. 1851, March 3. See Index to 0. S. vi. tit. Bill of Lading, and Index 
 to 0. S. vii. tit. Collision, and Index to N. S. iii. tit. Mines ; and see In re Sin- 
 clair, O. S. viii. 206. 
 
 63. 1851, March 8. As to liability to shipowners and carriers under this'act, 
 see Transportation Co, v. Moore, 0. S. vii. 15. 
 
 64. 1852, August 30. See Index to N. S. vi. tit. Steamboats, I, and Index 
 to N. S. viii. tit. Constitdtional Law, 18. 
 
 65. 1855, February 10. See Index N. S. viii. tit. Alien, 1, and Index to N. 
 S. iii. tit. Alien, 11. 
 
 66. 1855, March 6. See Index to N. S. viii. tit. Constitutional Law, 18. 
 
 67. 1856, August 18. See Index to N. S. vii. tit. Copykight, 1, and Index 
 to N. S. V. tit. DiscovERy, Title bt. 
 
 68. 1857, March 3. See Index to 0. S. vii. tit. Taeiep. 
 
 69. 1860, March 3. See Index to N. S. v. tit. Habeas Corpus. 
 
 70. 1861, July 13. See Index to N. S. xiv. tit. Constitutional Law, 5, and 
 Index to N. S. iii. tit. Constitutional Law, 1, and Index to N. S. iv. tit. 
 Constitutional L.tw, 1, 3, and Index to N. S. ix. tit. Confederate States, 
 1, and Index to N. S. viii. tit. International Law, 12, 17, and Index 
 to N. S. vi. tit. Interest, 1, and Index to N. S. ii. tit. Constitutional 
 Law, 5. 
 
 71. 1862, February 13. See Index to N. S. vii. tit. Military Service, 1, 
 and see Index to N. S. ii. tit. Courts, 8. 
 
 72. 1862, February 25. See Index to N. S. iv. tit. Constitutional Law, II, 
 and Index to N. S. xi. tit. Legal Tender, 4, and Index to N. S. ix. tit. Con- 
 stitutional Law, 13, and Index to N. S. vi. tit. Constitutional Law, 1, 
 and Index to N. S. v. tit. Constitutional Law, 11, and Index to N. S. viii. 
 tit. Legal Tender Notes, 2, and Index to N. S. ii. tit. Constitutional 
 Law, 14. 
 
 73. 1862, March 19. See Index to N. S. ix. tit. Partnership, 20. 
 
 74. 1862, May 20. See Index to N. S. iv. tit. Constitutional Law, 3, 
 and Index to N. S. iii. tit. Constitutional Law, 1, and Index to N. S. ii. tit. 
 Constitutional Law, 9. 
 
 75. 1862, June 7. See Index to N. S. x. tit. Taxation, 7. 
 
 76. 1862, June. See Index to N. S. xiii. tit. Contract, 10. 
 
 77. 1862, July 17. See Index to N. S. xiv. tit. Confiscation, 1. 
 
 78. 1862. See Index to N. S. xiv. tit. Constitutional Law, 9. 
 
 79. 1862, July 1. See Index to N. S. v. tit. Stamp, 3, and Index N. S. iii. 
 tit. Internal Revenue, and Stamp. 
 
 80. 1862, July 2. See Index to N. S. vi. tit. Attorney, 8. 
 
 81. 1862, July 7. See Index to N. S. v. tit. Prize, .3. 
 
 82. 1862, July 11. See Index to N. S. iv. tit. Constitutional Law, II. 
 
 83. 1862, July 17. See Index to N. S. iii. tits. Constitutional Law and 
 Prize, and Index to N. S. ix. tit. Confederate States, 18, and Index to 
 N. S. X. tit. Confederate States, 19, 21, and Index to N. S. ii tit Draft 
 1,3. 
 
 84. 1862. See Index to N. S. viii. tit. Confederate States, 5. 
 
 85. 1862. See Index to N. S. v. tit. Stamps. 
 
 86. 1863, February 25. See Index to N. S. v. tit. Banks, 8, and Index to 
 N. S. iv. tit. Banks. 
 
 87. 1863, March 3. See Index to N. S. v. tit. Customs, 1, 3; Appeal, 1 
 and Stamps, 4, and Index to N. S. vi. tit. Habeas Corpus, 5, and Index' to 
 
ACTS OF CONGRESS. 25" 
 
 N. S. ii. tit, Draft, 4, and Index to N. S. vi. tit. CoNSTiTtrTioxAL Law, 3S, 
 and Index to N. S. xi. tit. Confederate Statks, 3, and Index to N. S. ix. 
 tit. Constitutional Law, 7, and Index to N, S. xiii, tit. Constitution vl 
 Law, 6, and Index to N. S. iv. tit. Habeas Corpus, and Index to N. S. viii. 
 tit. Courts, 15, and Index to N. S. iii. tit. Courts, 12. 
 
 68. 1863, March 12. See Index to N. S. iv. tit. International Law, 18, 
 and Index to N. S. ix. tit. Confederate States, 13, and Index to N. S. x. 
 tit. Confederate States, 4. 
 
 89. 1S63. See Index to N. S. ix. tit. Constitutional Law. 
 
 90. 1863. See Index to N. S. xiii. tit. Civil Rights. 
 
 91. 1864, February 24. See Index to N. S. vii. tit. Military Service, 1. 
 
 92. 1864, June 3. See Index to N. S. xiii. tit. Bank and Banker, 13, and 
 Index to N. S. v. tit. Constitutional Law, 2, 3, and Index to N. S. vi. tit. 
 Constitutional Law, II, and to Index N. S. xiv. tit. Banks and Bankers, 
 12, and Constitutional Law, 2. 
 
 93. 1864, June 4. See Index to N. S. v. tit. Banks, 3. 
 
 94. 1864, June 11. See Index to N. S. viii. tit. Congress. 
 
 95. 1864, June 20. See Index to N. S. ix. tit. Military Service, 2. 
 
 96. 1864, June 30. See Index to N. S. v. tit. Customs, 5, and Index to N. 
 S. viii. tit. Stamps, 6, and Index to N. S. iv. tit. Stamps, 1, and Index to N. 
 S. vii. tit. Internal Revenue, and Index to N. S. xiii. tit. License, 1, and 
 Index to N. S. vi. tit. Stamps. 
 
 97. 1864, July 2. See Index to N. S. ix. tit. Confederate States, 3, and 
 tit. Witness, 1, and Index N. S. xiv. tit. Witness, 1, and tit. Constitutional 
 Law, 6, and Index to N. S. iv. tit. Constitutional Law, 3, 6. 
 
 98. 1864, July 4. See Index to N. S. v. tit. Constitutional Law, 10, and 
 Index to N. S. vii. tit. Bounty, 2, and Index to N. S. iv. tit. Constitutional 
 Law, 19, and Index to N. S. vii. tit. Military Service, 1. 
 
 99. 1864. See Index to N. S. xiv. tit. Constitutional Law, 9. 
 
 100. 1865, January 24. See Index to N. S. v. tit. Courts, 11, and Index 
 to N. S. vii. tit. Attorney, 1, 3, 9. 
 
 101. 1865, February. See Index to N. S. viii. tit. Taxation, 2. 
 
 102. 1865, March 2. See Index to N. S. x. tit. Constitutional Law, 7. 
 
 103. 1865, March 3. See Index to N. S. x. tit. Taxation, 7, and Inilex to 
 N. S. xi. tit. Deserter, and Index to N. S, vii. tit. Constitutional Law, 9, 
 10, and Index to N. S. vii. tit. Stamps, and Index to N. S. v. tit. Brokers, 
 and Index to N. S. xiii. tit. Courts, 16. 
 
 104. 1865, March 5. See Index to N. S. ix. tit. Practice, 8. 
 
 105. 1866, April 6. See Index to N. S. vii. tit. Constitutional Law, 20. 
 
 106. 1866, June 14. See Index to N. S. vii. tit. Banks, 2. 
 
 107. 1866, July 13, See Index to N. S. vii. tit. Internal Revenue, and 
 Index to N. S. ix. tit. Internal Renenue, 4, and Index to N. S. xii. tit. In- 
 ternal Revenue, 3, and Index to N. S. x. tit. Stamps, 2, and Index to N. S. 
 xiii. tit. Sta.mps, 3. 
 
 108. 1866, July 25. See Index to N. S. xiii. tit. Constitutional Law, 40. 
 
 109. 1866, July 27. See Index to N. ,S. xiii. tit. Courts, 21. 
 
 110. 1866. See Index to N. S. ix. tit. Taxation, 19. 
 
 111. 1867, February 5. See Index to N. S. viii. tit. Taxation, and Index 
 to N. S. xiv. tit. Courts, 20. 
 
 112. 1 867, February 27. See Index to N. S. vii. tit. Constitutional Law, 5. 
 
 113. 1867, March 2. See Index to N. S. viii. tit. Bankruptcy, 1, and In- 
 dex toN. S. xiv. tit. Courts, 12, and Practice, 7, and Index to N. S, xiii. tit. 
 Courts, 15, 19, and Index to N, S, vii. tit. Bankruptcy and Office, 1, and 
 Index to N. S. ix. tit. Bankruptcy, and Index to N. S. vi. tit. Bankruptcy, 
 1, 3. 
 
 114. 1867. See Index to N. S. xiv. tit. Bankruptcy, 2. 
 
 115. 1868, February 10. See Index to N. S. ix, tit. Bank, 4. 
 
 116. 1868. See Index to N. S, x. tit. Attorney, 4. 
 
 117. 1869, March 2. See Index to N. S. xii, tit. Bankruptcy, 24. 
 
 118. 1869, April 10. See Index to N. S. xiii. tit. Time, 5. 
 
 119. 1870, January 26. See Index to N. S. xiii. tit. Time, 5. 
 
 120. 1870. May 31. See Index to N. S. xiii. tit. Alien, 5, and Index to N. 
 S. X. tit. Election, 2, and Index to N. S. xiv. tits. Citizen, 4, and Vote, 2, 
 and Index to N. S. xiii. tit. Constitutional Law, 19. 
 
 121. 1870, July 14. See Index to N. S. xii. tit. Stamp, 4. 
 
26 ACTS OF CONGRESS— ADMINISTRATOR. 
 
 122. 1871, February 28. See Index to N. S. xii. tit. Negligence, 5. 
 
 12.3. 1871, March 3. See Index to N, S. xiv. tit. Evide.nce, U. 
 
 124. 1871, April 20. See Index to N. S. xii. tit. Coubts, 9, 
 
 125. 1873, March 3. See Index to N. S. xiv. tit. Constitutional Law, 2. 
 
 126. 1875, March 3. See Index to N. S. xiv. tit. Coubts, 14. 
 
 ADEMPTION. 
 
 Advances made to child of testator in his lifetime, when to be in ademption. 
 Hutchison v. Skellon, 0. S v 505. 
 
 ADJOINING LANDS, 
 
 1. Right of owner to use the water flowing through his land, proviiJed not 
 forced back on land above his, and provided he restores the stream to its natural 
 channel before it reaches the land below his. Stein v. Burden, 0. S. v. 729. 
 
 2. There are no correlative rights between adjoining owners of land in refer- 
 ence to the use of the water percolating under the surface of the ground. Chal- 
 field V. Wilson, 0. S. v. 528 ; but see button v. Guardians of Clutton Union, 0. 
 S. V, 567. 
 
 3. Duties of owners in excavating — rights of tenant. Gourdier v. Cormack, 
 0. S. V. 310. 
 
 ADMINISTRATOR. See Executors and Administrators. 
 
 I. Who may administer. 
 
 1. The testator having in one clause of his will left all his personal property 
 to his wife absolutely, by a subsequent clause gave her only a life interest therein, 
 the executors having declined to act, administration was granted to the widow. 
 
 . Westropp's Estate, O. S. viii. 192. 
 
 2. The testamentary guardian has a right to administration for the use and 
 benefit of minors, in preference to the guardian elected by them. Morris's Es- 
 tate, N. S. i. 512. 
 
 II. Jurisdiction of Courts. 
 
 3. The county courts of Texas may grant letters of limited administration 
 upon the estates of non-resident decedents ; but such special administration does 
 not prevent a grant of the general administration in a proper case to a different 
 person, and the two administrations may well subsist together. Jordan v. Polk, 
 O. S. iii. 555. 
 
 4. Proceeding by citation or attachment against an administrator or executor 
 is a necessary incident to the proper exercise of jurisdiction by Probate Court. 
 Philip? V. The State, 0. S. iv. 635. 
 
 III. Effect of Administration granted in other States. 
 
 5. Where a testator died domiciled in Ireland with legal assets in that country 
 and in England, owing debts in both countries, and the executors proved his will 
 in both ; but one of the executors who collected the assets in Ireland, remitted 
 them to England : Held, that an Irish judgment creditor who claimed to be paid 
 out of the Irish legal assets in priority, was entitled to be paid out of the legal 
 assets in England in the same prioi-ity, as he would have been had they been 
 administered in Ireland. Cooke v. Gregson, 0. S. il. 636, and see Wilson v. Dun- 
 sany, 0. S. li. 637. 
 
 IV. Powers and Duties of Administrator. 
 
 6. It is the duty of an administrator, in selling estate of the deceased by order 
 of the Court of Probate, to sell for ready money ; and if he neglect to do so, 
 and sell on the personal security of the purchaser, it is a breach of duty, for 
 which, if a loss ensues, he is liable on his bond to the Court of Probate. Foster 
 v. Thomas et al., 0. S. i. 565. 
 
 7. The rule that a trustee, or other person acting in a fiduciary capacity, can- 
 not directly or indirectly become a purchaser at his own sale is firmly established. 
 Mulford V. Bowen, 0. S. iv. 680. 
 
 8. An administrator cannot change the character of the trust fund. Quick v 
 Fisher, 0. S. iv. 684. 
 
 9. An administrator who settles his account before auditor in the Orphans' 
 Court, and suffers ^ final decree of distribution to pass, without alleging pav- 
 ments made to one of the distributees (which he denies), cannot, a year after- 
 wards, come in by means of » bill of review, and make the alleged payments 
 grounds of fresh litigation or more delay. Hildebeitle's Appeal, 0. S. i. 636. 
 
 10. A depositor in a savings bank may maintain an action to recover the 
 
ADMINISTRATOB— ADMIRALTY. 27 
 
 amount of liis deposits, although upon production of the deposit-book the bank 
 has paid the amount duo to one who has been appointed as his administrator, under 
 the erroneous belief that he was dead, after he had been absent for more than 
 seven years without being heard from. Jochumsen v. Suffolk Savings Bank, N. 
 S. i. 501. 
 
 11. An action for injury to real estate does not survive to an administrator. 
 Fo7-ist V. Androscoggin R, I. Co., N. S. xiii. 50. 
 
 12. To sustain such action under the statutes of New Hampshire, the facts on 
 which administrator's right depends must be stated in declaration. Id. 
 
 13. An administrator is not authorized by the R. S. 1843 (Indiana), to take 
 possession of the real estate of the intestate, if the heirs are present. Comparet 
 V. Randall, O. S. i. 694. 
 
 ADMINISTRATIVE LEGISLATION. 
 
 The power of enacting general laws cannot be delegated by the legislature 
 even to the people, but powers of local legislation are not within the principle, 
 and may be delegated. People v. Collins, 0. S. ii. 591. 
 
 ADMIRALTY. 
 
 I. Jurisdiction in Adjiieal- 
 
 1. Jurisdiction of United States courts not exclusive in all cases of maritime 
 torts. Trevor v. Steamboat Hine, N. S. iv. 436. 
 
 2. Jurisdiction under Acts of 1789 and 1845. Id. 
 
 3. The United States courts have exclusive jurisdiction over maritime con- 
 tracts. Murphyy. Mobile Trade Co., N, S. xiii. 50. 
 
 4. A service of a libel in a proceeding in personam on a maritime contract, 
 against a citizen of another district by attachment of his property, is a good ser- 
 vice and the court obtains jurisdiction. Manchester v. JSolchkiss, N. S. x. 379. 
 
 5. A defendant does not waive his right to object to the jurisdiction of the 
 court in an admiralty proceeding by filing a stipulation for costs, and to abide the 
 decree of the court, &c., under rule 4 in Admiralty. Id. 
 
 6. Service of a libel in personam in a maritime cause, in the admiralty court 
 of one district, upon a citizen of another district by attachment of his property, 
 is not a good service and confers no jurisdiction. Insurance Co. v. D. ^ C. 
 Steam Navigation Co., N. S. x. 383. 
 
 7. The District Courts of the United States, upon whom the admiralty juris- 
 diction was exclusively conferred by the Judiciary Act of 1789, can take cog- 
 nisance of all civil causes of admiralty jurisdiction upon the lakes and waters 
 connecting them, the same as upon the high seas, bays and rivers navigable from 
 the sea. The Eagle, N. S. ix. 55. 
 
 8. An execution against the owners of a boat and against the boat also, is not 
 such a proceeding to enforce a maritime lien against the boat, as would give the 
 District Court exclusive jurisdiction. Merritt v. Morgan, N. S. ix. 635. 
 
 9. The Supreme Court of the United States has power to regulate the practice 
 of the courts of admiralty, and to frame rules in relation to executions and 
 other processes to be used therein. Ward v. Chamberlin, O. S. i:£. 171. 
 
 10. When the proceeding is against a vessel by name, whatever may be the 
 nature of the claim, it is a proceeding in the nature and with all the incidents of 
 a suit in admiralty ; and all such proceedings are, exclusively, within the juris- 
 diction of the District Courts of the United States. Ferran v. Lowndes, N. S. 
 ix. 190. 
 
 11. Our admiralty has jurisdiction to enforce a lien existing by the maritime 
 law of foreign nations. The Maggie Hammond, N. S. ix. 440. 
 
 12. Whether the admiralty has jurisdiction of a suit in rem for a general aver- 
 age loss — quaere? Oologaardt v. Brig Anna, N. S. ix. 473. 
 
 13. Coal barges being large rough trunks or boxes made merely for transport- 
 ing coals, and usually sold for lumber at the end of the voyage, and not having 
 any coasting license, are not the subject of admiralty jurisdiction. Jones v. Cin- 
 cinnati Goal Co., 0. S. iii. 391, 
 
 14. The admiralty has not jurisdiction of a libel for freight on merchandise 
 carried on a canal boat, about two hundred and fifty miles by canal, and only 
 about forty miles on tide-water. Wallis v. Chesneij, 0, S. iv. 307. 
 
 15. Togive jurisdiction on a contract of affreightment, tl>e principal or chief 
 part of the service must be under the contract to be performed on tide-water. Id. 
 
 16. The courts of the United States have jurisdiction in all civil causes of 
 
28 ADMIRALTY. 
 
 admiralty, and have it exclusive of the courts of the several stateS, except as to 
 the common law remedy. Ashbrook v. The Golden Gate, S. v. 148. 
 
 17. Decrees in the admiralty can only be enforced in the courts of the United 
 States, in the mode and by the process properly ordained by the Acts of Con- 
 gress and rules of court for their execution. Ward v. Chamberlin, 0. S, ix. 
 171. 
 
 1 8. The character and effect of such decrees in admiralty, and their modes of 
 execution, are within the province of Congress to determine, /d. , 
 
 1». Admiralty and maritime jurisdiction possessed by the District Courts of 
 the United States, on the western lakes and rivers, under the Constitution and 
 Act of 1789, is independent of Act of 1845, and unrestricted thereby. Fox v. 
 The Revenue Cutter, 0. S. viii. 4.59. 
 
 20. The United States Admiralty Court has no jurisdiction over a vessel 
 whilst she is in the hands of the sheriff by virtue of a legal process, and an order 
 for the sale of such a vessel made by the admiralty is void ; and a marshal's sale 
 by virtue of such an order, though the sale be made after the sheriff's possession 
 had ceased, is inoperative and gives no title to the purchaser. Taylor v. Carryl, 
 0. S. vi. 646. 
 
 21. The admiralty has jurisdiction over marine torts, which may he defined to 
 be unlawful acts, injurious to others, independent of contract, happening or being 
 committed upon the sea or tide water. The Philadelphia ^ Havre De Gract 
 Steam Tow-Boat Co. v. The Phila., W. ^ B. Railroad Co., 0. S. v. 286. 
 
 22. But a sale hy the sheriff' under attachment from a state court was held 
 good as against a subsequent levy and sale by the marshal for seamen's wages. 
 Carryl v. Taylor, 0. S. ii. 333. 
 
 23. Sale of ship in admiralty takes precedence over a sale under process from 
 a state court. Wall v. Royal Saxon, 0. S. ii. 324. 
 
 24. Contract for outfit and supply of material for building and equipping ship 
 bought in one state and sent to another and used by the vessel in port of the latter, 
 held no admiralty lien existed, Collis v. The Coernine, O. S. vii. 5. 
 
 25. A judicial sale in a proceeding in rem will discharge maritime liens in 
 whatever jurisdiction it may be decreed. Johnston v. The Ambassador, O. S. vi. 
 273. 
 
 26. United States court has no jurisdiction in claim for wages of Bremen sailors 
 against Bremen vessel. Kendept v. Barque Korner, 0. S. iii. 47. 
 
 27. When master borrows money in a foreign port, draws a bill of exchange 
 and also executes mortgage of the ship with stipulation that lender is not to take 
 the usual marine risks, a court of admiralty has no jurisdiction'. Mailland v 
 The Atlantic, 0. S. iii. 477. 
 
 28. A sale under foreign attachment or similar proceeding in a state court, 
 though it transfers the right of the defendant to the property attached, does not 
 effect liens created thereon by the law of another state. Devinney v. The Mem- 
 phis, O. S. ii. 666. 
 
 29. A steamboat employed in transporting passengers between ports in the 
 same state,-is not liable to a penalty for not having the hull and boilers inspected. 
 United States v. Steamboat Seneca, N. S. i. 281. 
 
 30. Admiralty jurisdiction over the lakes and navigable waters connecting 
 them and the constitutional validity of the Act of Congress of 1845 relating to 
 the same. See People v. Tyler, 0. S. viii. 403. 
 
 31. 'When the constitution adopts the admiraUy and maritime jurisdiction it 
 adopts also the law by which it is governed. Roberts v. Skoljield, 0.. S. viii. 
 156. 
 
 32. Ninth section of the Judiciary Act, vesting in the United States District 
 Courts exclusive admiralty jurisdiction, is constitutional. The Moses Taylor N 
 S. vi. 630. ■ 
 
 33. The rules of practice of the Supreme Court in admiralty proceedings are 
 merely intended to regulate the remedy, and have no relation to the question of 
 jurisdiction. In re Kirkland, Chase ^ Co., N. S. xii. 300. 
 
 34. A claimant having an original admiralty lien, who has proceeded under a 
 state law in a state court to enforce it will be deemed to have waived such original 
 lien, and must rely solely on the lien acquired by the seizure under the state law. 
 Dudley v. The Steamboat Superior, O. S. iii. 622. 
 
 35. An injury to a boom is not a maritime tort, and cannot be redressed in ad- 
 miralty. Brig City of Erie v. Canfields, N. S. xiii. 395. 
 
ADMIRALTY. ^9 
 
 36. No jurisdiction where damage wholly on land, though originating on water. 
 The Phmiouth, N. S. v. 503. 
 
 37. Nature and extent of the admiralty jurisdiction m rem. See Galena Bridge 
 Co. V. Roch Island Bridge, N. S. vii. 409. 
 
 3S. Whilst the general maritime law is the hasis of the maritime law of the 
 L'nitcd States, as well as of the other countries, it is only so far operative in this, 
 or any country, as it is adopted by the laws and usages thereof. It has no inhe- 
 rent force of its own. The Lotawanna, N. S. xiv. 483. 
 
 39. In particular matters, especially such as approach a merely municipal 
 character, the received maritime law may diifer in different countries without 
 affecting the general integrity of the system as a harmonious whole. Id. 
 
 40. The general system of maritime law which was familiar to the lawyers 
 and statesmen of this counti-y when the constitution was adopted, was intended, 
 and referred to when it was declared in that instrument, that the'judicial power 
 of the United States shall extend "to all cases of admiralty and maritime juris- 
 diction." Thus adopted, itljecame the maritime law of the United States, operat- 
 ing uniformly in the whole country. Id. 
 
 41. The question as to the true limits of maritime law and admiralty jurisdic- 
 tion is cxclusivelj' a judicial question, and no state law or Act of Congress can 
 make it broader or narrower than the judicial power may determine those limits 
 to be. But what the law is within those limits, assuming the general maritime 
 law to be the basis of the system, depends on what has been received as law in 
 the maritime usages of this country, and on such legislation as may have been 
 competent to affect it. Id. 
 
 42. Sewble, that Congress, under the power to regulate commerce, has author- 
 ity to establish a lien on vessels of the United States in favor of material-men, 
 uniform throughout the whole country. Id. 
 
 43. In order to give to the Supreme Court of the United States jurisdiction 
 under sect. 709 of the Revised Statutes, the assignment of error must be specific. 
 Edwards v. Elliot ft al., N. S. xiv. 518. 
 
 44. Any person having a specified lien on, or a vested right in, a surplus fund 
 in court, may apfily by petition for the protection of his interest under the 43d 
 Admiralty Rule. The Lotawanna, N. S. xiv. 483. 
 
 45. Whether a stream is within the term, "navigable waters of the United 
 States," depends upon whether the stream in its natural state affords a channel 
 for commerce. The Montello, N. S. xiv. 315. 
 
 46. The admiralty jurisdiction of the United States courts extends to a tort, 
 committed by collision on an artificial ship canal connecting navigable waters 
 which are witliin that jurisdiction. The SUamer Olcr, N. S. xiv. 300. 
 
 47. A court of admiralty has no power to issue an execution against the 
 lands of a defendant, to collect the amount due on a decree in admiralty for the 
 payment of money. Ward v. Chamberlin, 0. S. ix, 171. 
 
 II. Of the Libei,, Pleading and Evidence. 
 
 48. A libel for review, filed after the term has passed at which the decree com- 
 plained of was rendered, and after the same has been executed, will be enter- 
 tained by a court of admiralty, when actual fraud is charged and the libellant 
 is without fault and without remedy. North Western Iron Co. v. Hopkins, N. S. 
 V. 44. 
 
 49. Exceptions to commissioner's report must state grounds. So of an answer 
 to a claim. Tlie Commander-in-Chief, N. S. iii. 693. 
 
 50. Objections to want of proper parties. Id. 
 
 51. Where libel alleged total loss, which answer substantially admitted the fact 
 that the vessel was finally repaired, is no defence. The Falcon, N. S. xiii. 645. 
 
 52. A decree for total loss is a bar to any claim by the former owners of a 
 vessel. Id. 
 
 53. Where the District and Circuit Courts concur in their view of an admi- 
 ralty case, every presumption will be in favor of their correctness, on an appeal 
 to the Supreme Court. The Quickstep, N, S. ix. 508. 
 
 54. An objection of a too general allegation of injury should be made in the 
 court below. Id. 
 
 55. The possession necessary to maintain a suit in rem against property must 
 be actual. The Davis, N. S. ix. 774. 
 
 56. The possession by the captain of a merchant vessel of cotton loaded by a 
 treasury agent of the United States, is not the possession of the government. Id. 
 
20 ADMIRALTY. 
 
 57. In a proceeding in personam on a maritime contract, in a court of admi- 
 ralty, of one district against a citizen of another district, service by attachment ot 
 his property is not sufficient, and confers no jurisdiction. Atkins v. Fibre Co., 
 N. S. X. 389. 
 
 58. For the purposes of such a question a corporation is to be held a citizen of 
 the state in which it is incorporated. Id. 
 
 59. An entry on the record that "Mr. B. appears for respondent and has a 
 a week to perfect an appearance and answer," does not show such an appear- 
 ance as amounts to a voluntary submission to the jurisdiction. Id. 
 
 60. Evidence receivable in a court of admiralty — subject discussed. 0. S. 
 ii. 65. 
 
 61. Separate libels were filed in 1871, against a steamboat, for wages, for 
 salvage, for supplies furnished at her home port, and for the amount due on a 
 mortgage • Held, on the evidence, that the lien for supplies had not been per- 
 fected under the st.nte law ; and, if it had been, that the libels for such supplies 
 could not be sustained prior to the recent change in the 12th Admiralty Rule : 
 Held, also, that the libel upon the mortgage could not be sustained as an ori- 
 ginal proceeding, bnt that the mortgagees having petitioned for the surplus pro- 
 ceeds of the vessel, were entitled to have the same applied to their mortgage. 
 The Lotawanna, N. S. xiv. 191. 
 
 62. Under the existing Acts of Congress and Rules of Court, the libellant in 
 admiralty may have an attachment or a capias against the person of the defend- 
 ant, or a, fieri facias against his goods and chattels ; and these are the only writs 
 and the only mode prescribed whereby an admiralty decree can be lawfully exe- 
 cuted in the Circuit and District Courts. Ward v. Chamber/in, 0. S. ix. 171. 
 
 63. Where a party in his libel sets up an admiralty lien, he cannot be allowed, 
 if that fails, to set up and rely upon a common-law or statutory lien. Taylor v. 
 Steamboat, N. S. xiv. 86. 
 
 64. An information tiled in the District Court, having all the requisites of a 
 common-law proceeding, will not be converted into an admiralty one, from the 
 fact that it is entitled a libel and the citation or warrant a monition. SlideU's 
 Land, N. S. xiv. 116. 
 
 65. Question whether boat is foreign or domestic, see Dudley v. The Superior, 
 O. S. iii. 622. 
 
 66. An answer to a libel of information must be full and explicit to each 
 article. United States v. T/ie Propeller Sun, N. S. i. 277. 
 
 67. The common-law remedy saved by the Act of 1789, is a remedy which 
 attaches to the interests of the owner of the vessel. Murphy v. Mobile Trade 
 Co., N. S. xiii. 50. 
 
 III. Effect of Judgment in Admiralty as to Lands of Respondent. 
 
 68. The lien of libellant on the land of the respondent will entitle him to a 
 bill of discovery against respondent and a third person who sets up a claim 
 under a different lien. Ward et al. v. Chamberlain, N. S. iii. 53. 
 
 69. A decree for the payment of money in an admiralty suit in personam stands 
 in this respect upon the same footing as a decree in equity. Id. 
 
 70. Admiralty decree is not a lien on land, and has never been treated as a 
 lien on land in either England or this country. Ward v. Chamberlin, 0. S. ix. 1 7 1 . 
 
 IV. Average. 
 
 71. Justice and sound policy require that government property saved from 
 destruction, should bear its share of the burden imposed by maritime law on 
 other property in the same condition. The Davis, N. S. ix. 774. 
 
 V. Damages in cases op Collision, 
 
 72. Where in case of collision there is reasonable doubt as to which vessel is 
 to blame, the loss must be sustained by the one on which it has fallen. The 
 Grace Girdle, N. S. viii. 438. 
 
 73. No jurisdiction where damage done wholly on land, though orio-inatinsr on 
 water. The Plymouth, N. S. v. 503. = o fa 
 
 74. An order merely affirming the decree of the District Court is not such as 
 the Circuit Court should make, and no appeal lies to Supreme Court. The 
 Lucille, N. S. xiii. 587. 
 
 75. In case of collision the inferential evidence of the officers of the colliding 
 vessel, will not weigh against the direct testimony of those of injured one. The 
 
 Wenona, N. S. xiii. 645, 
 
ADMIRALTY. 31 
 
 7G. A false mnncEuvre at the moment of collision on the part of a schooner, 
 will not exonerate a steamer which had nothing to mislead it. Tke Falcon, N. 
 S. xiii. 645. 
 
 77. Vessels transporting goods are carriers in such sense that the owners may 
 maintain action for cargo lost by collision. The Commander-in-Chief, N. S, iii. 
 693. 
 
 78. Nautical X'ules require the highest diligence on the part of a steamship ap- 
 proaching in an opposite direction to a sailing vessel. The Carroll, N. S. ix, 
 H8. 
 
 79. Fault on the part of the sailing vessel at the moment of collision does not 
 absolve a steamship which has previously been guilty of carelessness. M. 
 
 80. The Federal courts have jurisdiction in admiralty in cases of collision be- 
 tween steamboats on the navigable rivers of the United States, even though the 
 collision occurs above tide-water. Steamboat Hine-v. Trevor, N, S. vi. 586. 
 
 81. Such collisions, where the remedy is by a direct proceeding against tht 
 vessel and not against the owners, constitute causes of admiralty cognisance. Id. 
 
 82. By the 9th section of the Act of Congress of September 24th 1789, the 
 jurisdiction of the. District Courts of the United States is exclusive, except where 
 the common law is competent to give a remedy. Id. 
 
 83. The fact that one vessel carries a prohibited light does not absolve another 
 from the observance of the caution and nautical skill required by the exigencies 
 of the case. Greening v. Schooner Greij Eagle, N. S. vii. 226. 
 
 84. Although a white light usually represents a vessel at anchor, an omission 
 to watch the light and ascertain from its bearings whether the vessel is in motion, 
 is a neglect of ordinary care and skill, and makes the collision the result of 
 mutual fault. Id. 
 
 85. There may be circumstances under which a vessel that is unable to show 
 the proper lights may nevertheless continue her voyage at night. Id. 
 
 86. In navigating a river, omission to observe the usage in proper time renders 
 vessel liable for collision. The Vtinderhilt, N. S. vii. 575. 
 
 87. If one of two parties injured by a collision stands idle until the other has 
 prosecuted his claim to judgment, he cannot share proceeds until the other has 
 been paid in full. Woodworth v. Insurance Co., N. S. vii. 63. 
 
 88. It is no defence to a proceeding in rem against a steamship, for tortious 
 collision, that a pilot was in charge conformably to the state law. The Merrimnc, 
 N. S. xii. 185. 
 
 89. The master, officers and crew having voluntarily left a vessel she will be 
 deemed a derelict. The Laura, N. S. xii. 186. 
 
 90. A vessel attempting to save a derelict will not be responsible for the latter's 
 loss. Id, 
 
 91. A steamer meeting a vessel on the high seas at night, is entitled to pre- 
 sume she is such a vessel as her light indicates. The Scotia, N. S. xii. 186. 
 
 92. The people of other nations, navigating the high seas, may sue the citi- 
 zens of the United States in her courts for injuries resulting from disregard of 
 the navigation laws. Id. 
 
 93. Courts may take judicial notice of the rules of navigation of Great Britain 
 and the United States. Id. 
 
 94. Seventeen miles an hour too high a rate of speed for a steamer moving 
 among vessels having tows. The Syracuse, N. S. ix. 507. 
 
 95. If a steam vessel having another on her starboard does not keep out of 
 the wav, she must show sufficient cause to justify such departure. The Corsica, 
 N. S. ix. 507. 
 
 96. Where a steamer running seven knots in a dense fog and approaching 
 Sandy Hook, collides with a bark under way and ringing a bell, the damages will 
 be equally divided. The Pennsylvania, N. S. xiii. 646. 
 
 97. A vessel committing a positive breach of statute must show that it certainly 
 did not contribute to a disaster. Id. 
 
 98. Where a collision occurs in consequence of a vessel being cut loose from 
 her moorings, in order to save her from sinking, it is not such an inevitable acci- 
 dent or vis major, as will exempt her from liability for damage resulting from 
 the collision. Sherman v. Mott, N. S. xi. 716. 
 
 99. In voluntarily cutting herself loose, she takes the risk of colliding, and 
 having collided must bear the consequences. Id. 
 
S2 .ADMIRALTY. 
 
 100. Duties of steaiaers in the navigation of tlie Mississippi. Shute v. Goalee, 
 O. S. iii. 465. 
 
 101. A steamer is responsible for a collision which a better looltout than she 
 had might have prevented, /d. 
 
 102. One claiming damages for a collision must make it appear that there was 
 no want of care or skill on his part. Lucas v. Steamboat Swan, 0. S. iii. 659. 
 
 103. In case of doubt as to coarse of approaching vessel, duty to stop or 
 "slow," until its course is ascertained. Ward v. Chamberlain, O. S. v. 330. 
 
 104. When fault may be attributed to two vessels, the damages are divided 
 and not apportioned according to degree of fault. Id. 
 
 105. The towing-boat, even in the case of small vessels, is the servant of the 
 vessel towed, and the tug being thus bound to obey the orders of the other vessel 
 is not responsible, though in point of fact giving orders to her, for damages in 
 the proper course of its employment. Steam Tug Sampson, 0. S( iii. 337. 
 
 106. Entering harbor in a dark night with heavy sea and high wind, how far 
 negligence. Badgehj v. Schooner Juniata Paton, 0- S. i. 262. 
 
 107. Where by a collision one vessel is left helpless in the track of navigation, 
 and on the following day is injured by a passing vessel, the vessel in fault in the 
 original collision is liable for the cost of repairing the injuries received by the 
 disabled vessel in the second collision. Steamer Oler, N. S. xiv. 300. 
 
 1 08. The master of a steamboat used for towing is bound to know all circum- 
 stances necessary for the safe navigation of the river he is on. Lady Pike, N. 
 S. xiv. 452. 
 
 109. The owners of tow-boats are responsible for accidents, the result of want 
 of knowledge of the captain. Id. 
 
 110. Whether the absence of a lookout at the bow of a sailing vessel is a con- 
 tributory fault to a collision, is a'question of fact. S. B. Wheeler, N. S. xiv. 249. 
 
 111. Rules as to duty of exhibiting ship's lights ; subject discussed, 0. S. y. 1, 
 
 VI. Damages from otbek CAnsES. 
 
 112. The District Court, as a court of admiralty, has jurisdiction of a cause 
 wherein the libellant seeks to recover damages caused to his vessel by a pier 
 erected by the respondent, without legal authority, within the navigable channel 
 of the Mississippi river. N. W. Packet Co. v. Ailee, N. S. xii. 561, 
 
 113. Where a ship is detained in port by ice, and her cargo is damaged before 
 the seaspn allows her to proceed, though she subsequently delivers it to the con- 
 signees, a shipper cannot, without rescinding the contract, sustain a libel in rem 
 for a breach of the bill of lading, until the term for the performance of the con- 
 tract has expired. Jones v. The Floating Zephyr, 0. S. vii. 494. 
 
 114. Where the respondents had contracted with certain parties for the building 
 of a bridge across the Susquehanna river, and the bridge contractors, at the 
 request, and for the convenience of the respondents' engineer, had driven in the 
 bed of the river a " sight-pile," upon which a steam tug-boat ran, without fault 
 on her part, and was thereby much damaged, held, that the negligence of the con- 
 tractors and engineer, in not removing the "sight-pile," was the negligence of 
 the respondents ; the relation of master and servant being established by the 
 facts. The Philadelphia and Havre de Grace Steam Tow-boat Co. v. The Philadel- 
 phia, Wilmington and Baltimore Railroad Co., 0. S. v. 280. 
 
 115. Delivery of cargo: bark not liable for goods destroyed by fire, unladen 
 and on the wharf in time for removal by consignees before the fire. The Tangier 
 V. Goddard, 0- S. viii. 278, and see Same v. Same, 0. S. vi. 504. 
 
 116. A carrier not bound to deliver at the warehouse of consignee. Id. 
 
 117. Holidays not favored in commercial law. Id. 
 
 118. There is an implied warranty of seaworthiness in a contract between the 
 owner of a ship and a seaman to serve thereon. Couch v. Steel, O. S. ii. 685. 
 
 119. A person engaged in the business of towing boats is liable for damages 
 arising from the negligence of his agent, who has charge of the towing vessels. 
 Ashmore v. Steam Towing Co., 0. S. ix. 721. 
 
 120. A common carrier may make a contract limiting his responsibility, but 
 not one exempting him from liability for his or his servant's negligence. Id. 
 
 121. Where the charter-party represented the cargo to be a grea'ter number of 
 tons than it actually weighed, the merchant held not liable to pay for more than 
 the real weight. Gibbs v. Gray, 0. S. v. 738. 
 
 VII. Wages of Seamen. 
 
 122. The adoption of the law of a foreign country, as in the case of a law 
 
ADMIKALTY. 33 
 
 giving the master a lien for his wages, is discretionary with a court of admiralty, 
 and not to be resorted to where it would operate with injustice. The Johannes 
 Ckrisiopk, 0. S. iii. 508. 
 
 123 The rule which deprives seamen of wages if no freight earned, does not 
 apply to the master of the ship. Hawkins v. Twi/zill, 0. S iv. 563. 
 
 124. A master has no lien for his wages as such. /d. 
 
 125. Action to recover seamen's wages — unlawful discharge of seamen in a 
 foreign port — measure of damages : See Croucher v. Oakman, N. S. i. 506. 
 
 126. The seamen's lien for wages is not discharged by a sale on execution 
 against the owners of a vessel Foster et al. v. Steamboat Pilot No. 2, 0. S. i. 
 403. 
 
 127. A seaman who is at the same time a part-owner of the vessel in which 
 he serves, is not thereby precluded from libelling in admiralty for wages. Zd. 
 
 128. United States District Court has no jurisdiction in matter of claim for 
 seamen's wages against vessel belongiug to Bremen. Kendept v. Korner, 0. S. 
 iii. 47. 
 
 129. The exercise of admiralty jurisdiction in suits by foreign seamen for 
 wages is a matter of comity rather than of duty. Gonzales v. Minor, O. S. 
 ii. 700. 
 
 VIII. Salvage. 
 
 130. A libel for salvage may be filed in the name of the master a owners of 
 salving vessel, though master disclaim. The Blackwell, N. S. ix. 774. 
 
 131. A tug with fire engines (commonly used on land) on board, extinguish- 
 ing a vessel on fire, is entitled to salvage. Id. 
 
 132. A vessel owned by a corporation is entitled to salvage. Id. 
 
 133. Non -prosecution of their claim by one set of salvors enures to the benefit 
 of the vessel salved, and not the other set of salvors who prosecute. Id. 
 
 134. 'Where a steam tug is constantly employed during the winter, on a dan- 
 gerous station and at a heavy expense, for the purpose of rendering salvage and 
 towage service to vessels in distress, her owners are entitled to the full remu- 
 neration usually awarded to salvors who peril life and property. Virden v. The 
 Brig Caroline, 6. S. vi. 222. 
 
 135. What is a maritime contract, and effect of the perils of the sea thereon, 
 and hereio what claims may bo recovered in admiralty and their lien. 
 
 136. A cause of action to be cognisable in admiralty must relate to the busi- 
 ness of commerce and navigation. People v. Steamer America, N. S. viii. 182. 
 
 137. A state pilot law, enacting that all vessels shall take a pilot, but con- 
 taining no clanse exempting the vessels from liability for the pilot's mismanage- 
 ment, does not protect a vessel with a pilot on board from liability for torts 
 done by it, though such torts are the result of the pilot's negligence. The China, 
 N. S viii. 437. 
 
 138. A contract of affreightment to be performed upon tidal waters or navi- 
 gable rivers wholly within the limits of a state, is a maritime contract within the 
 a<lmiralty jurisdiction of the courts of the United States, Owners of Mary 
 Washington v. Ayres, N. S. v. 692. 
 
 139. Contract for transportation of passengers on the ocean, is a maritime 
 contract. The Moses Taylor, N. S. vi. 630. 
 
 140. The distinguishing feature of a suit in admiralty. Id. 
 
 141. Use of depositions in, taken in another suit concerning same subject- 
 matter. Rutherford y. Geddes, N. S. vi. 435. 
 
 142. When only can be read. Id. 
 
 143. Material-men and their liens, the subject discussed. , N. S. vii. 513. 
 
 144. A maritime lien does not exist upon a stationary structure like a bridge, 
 and, therefore, a court of admiralty has no jurisdiction of a proceeding in rem 
 against a bridge to recover damages caused to vessels navigating a public stream. 
 Galena Packet Co. v. Rock Island Bridge, N. S. vii. 409, 
 
 145. Nature and extent of the admiralty jurisdiction in rem. Id. 
 
 146. Money advanced on the personal credit of the owner or master cannot be 
 recovered in the admiralty, Maitland v. Brig Atlantic, 0. S. iii. 477. 
 
 147. A contract of affreightment is executory and entire ; and where delivery 
 is prevented by perils of the sea, the ship-owner cannot recover full freight or 
 freight pro rata itineris, unless the cargo be received on the part of the shippers at 
 an intermediate port, when partial freight may be due on an implied new con- 
 tract, Richardson v. Young, N. S. ix. 62. 
 
 3 
 
34 ADMIRALTY. 
 
 148. A ship laden with corn from Philadelphia for Liverpool, having stranded, 
 the corn was taken back to Philadelphia, surveyed, condemned and sold by the 
 master, without notice to the shippers, who, however, afterwards received a part 
 of the proceeds. In action against the ship-owners for the value of the corn, it 
 was hdd, that the defendants were not entitled to a set-off for full or partial 
 freight. Richardson v. Young, N. S. ix. 62. 
 
 149. The sale of the corn fixed the rights of all parties, and notices subse- 
 quent thereto in relation to the loss were irrelevant and inadmissible. Id. 
 
 150. Supplies furnished in Mobile, to a steamboat plying between there and 
 Columbus, the owner being a citizen of Mississippi, is a maritime contract. 
 Murphy V. Trade Co., N. S. xiii. 50. 
 
 151. The proceedings in admiralty embraced in E. C. 3127-3147, are inoper- 
 ative in all cases of maritime contract. Id. 
 
 152. "Dangers of navigation excepted," — mistake of light, included in the 
 phrase. Badgehj v. Schooner Juniata Paton, 0. S. i. 262. 
 
 153. Entering harbor in a dark night with heavy sea and high wind, how far 
 negligence. Id. 
 
 154. A steamboat towing three loaded barges down the Mississippi river, in 
 approaching bridge piers too closely to back or stop, the tow is driven against a 
 pier by a sudden and unanticipated gust of wind ; the carrier is not liable for 
 loss or injury of the cargo of one of the barges. Insurance Co. v. Steamboat 
 Lady Pike, N. S. viii. 614. 
 
 1 55. Sale of vessel by master in a distant port — requisites to validity and effect 
 of. The Amelie, N. S. vii. 317. 
 
 156. A recorded mortgage of a vessel does not take priority over a subsequent 
 lien obtained by a material-man for necessary supplies or repairs. Seeder v. 
 Steamship George's Creek, 0. S. iii. 232. 
 
 157. By the maritime law there is no lien for supplies in the home port. The 
 credit is supposed to be given to the owner, and not to the ship. Marsh ^ Son 
 V. The Brig Minnie, 0. S. vi. 328. 
 
 158. It is settled that there can be no lien by the general maritime law for 
 materials and supplies furnished a vessel in her home port. Hill ^ Conn. v. 
 Golden Gate, 0. S. iii. 142. 
 
 159. The penalties under the Passenger Act of 1848 are personal, and there is 
 no lien on the vessel and no remedy in rem to enforce them. United States v. 
 Brig Neptune, 0. S. iii. 48. 
 
 160. There may be circumstances under which a vessel that is unable to show 
 . the proper lights may nevertheless continue her voyage at night. Greening v. 
 
 Schooner Grey Eagle, N. S. vii. 226. 
 
 161. A maritime lien will be created for repairs done on a boat or vessel at 
 the home port, if the repairs are made on the credit of the boat or vessel ; but 
 where the person doing the work stipulates for other and different security from 
 that of the boat or vessel, the maritime lien is waived and 'Cannot be enforced. 
 Taylor v. Steamboat Commonwealth, N. S. xiv 86. 
 
 162. Advances in a foreign port to equip a vessel and procure a cargo, are 
 primd facie made on credit of vessel. Insurance Co. v. Baring, N. S. xiv. 191. 
 
 163. They are a lien and constitute insurable interest. Id. 
 
 164. The district court cannot distribute proceeds of sale to any claimants 
 who have no maritime liens. The Lotawanna, N. S. xiv. 191. 
 
 165. It is settled by repeated adjudications of this court, tbat material-men 
 furnishing repairs and supplies to a vessel in her home port do not acquire 
 thereby any lien upon the vessel by the general maritime law as received in the 
 United States. Id. 483. 
 
 166. A maritime lien does not arise on a contract to furnish materials for 
 building a ship. Edwards v. Elliott, N. S. xiv. 518. 
 
 167. A lien given by the general maritime law is a vested right, and the legis- 
 lature of a state can pass no law to impair it. Ashbrook v. The Golden Gate, 0. 
 S. V. 148. 
 
 168. A material-man who has a lien under the general maritime law of the 
 United States, has a right to enforce that lien in the Federal courts, and state 
 laws or proceedings under them cannot deprive him of that right, [d. 
 
 169. A dissenting part owner is entitled to a stipulation to secure his interest 
 in case of a loss on a voyage undertaken against his wishes. Tunno et al. v. The 
 Eetsina, 0. S. v. 406. 
 
ADMIRALTY. 35 
 
 no. The court of admiralty will not order an account as a separate and inde- 
 pendent mode of relief, but only as incident to other matter of which it has 
 admitted cognisance, Tunno et al. v. The Betsina, 0. S. v. 406. 
 
 X. Appeals. 
 
 171. In admiralty, the pendency of proceedings in personam cannot suspend 
 those in rem. People ex rel. Granger v. Waijne Circuit Judge, N. S. xiii. 389. 
 
 172. Courts cannot treat them as involving identical issues. /(/. 
 
 173. An appeal in admiralty from the district court, in effect institutes the 
 matter de novo in the circuit court. The Lucille, N. S. xiii. 587. 
 
 174. Decree not reversed for irregularity in language of decision where it is 
 obvious no error has been committed. Sturgis v. Clough, N. S. iii. 629. 
 
 XI. Joint Owners op Vessels — theik Eights and Remedies. 
 
 175. In the management of a vessel, the opinion of the majority shall prevail, 
 unless it forbids its employment, in which case it yields to the minority who 
 desire its employment, because the public interest must be protected in securing 
 employment to the vessel. Tunno et al. v. The Betsina, 0. S. v. 406. 
 
 176. The court of admiralty has an admitted jurisdiction to secure the value 
 of the dissentient minority's interest, in case of a disagreement among part 
 owners in the employment of the vessel. Id. 
 
 177. In proceedings in rem the property or proceeds follow the cause on appeal 
 from district and circuit court. The Lotawanna, N. S. xiv. 191. 
 
 178. Tlie Supreme Court, on appeals in admiralty involving issues of fact, 
 will only reverse in a clear case. The Lady Pike, N. S. xiv. 452. 
 
 Xn. State Powek over Vessels trading under United States Laws, 
 
 AND herein op THE CONPLIOT OF JURISDICTION. 
 
 179. A state statute authorizing, in cases of collision between steamboats on 
 navigable rivers, a proceeding in the state courts against the vessel by name, its 
 seizure and sale to satisfy any liability that maybe established, is in conflict with 
 the constitutional legislation of Congress conferring admiralty on the district 
 courts of the United States. In such cases the state courts cannot exercise a 
 concurrent jurisdiction, and the common law is not competent to give such a 
 remedy. Steamboat Hine v. Trevor, N. S. vi, S86. 
 
 180. The history of the adjudications of the Supreme Court of the United States 
 on the subject of admiralty jurisdiction reviewed, and the principles established 
 by that tribunal stated by Miller, J. Id. 
 
 181. State statutes authorizing actions in rem against vessels for causes cogni- 
 sable in admiralty are statutes conferring admiralty jurisdiction, and are there- 
 fore unconstitutional. Jackson v. Steamer Kinnie, N. S. viii. 470. 
 
 182. A lien created by a state law against a domestic vessel for supplies fur- 
 nished in a home port, cannot be recognised or enforced in a court of admiralty, 
 M. 
 
 183. Suit was brought against a vessel by name, and the vessel attached under 
 the water-craft laws of Mississippi, for a debt due plaintiff. Plaintiff made afS- 
 davit that defendant was a steamer in the navigable waters of the state, and in 
 his declaration set forth that he was a citizen of Mississippi, and that the 
 " home port " of the vessel was in that state ; Held, that the court had no juris- 
 diction, the cause being one of admiralty. Deever v. Steamer Hope, N, S. ix. 
 683. 
 
 184 A. and B. were, with others, part owners of a vessel, and also served on 
 board, her as mariners. The vessel was sold on execution out of a state court, 
 on a judgment against all the owners : Held, that the sale not affecting the liens 
 of seamen, A. and B. might libel the vessel in the hands of the purchaser at 
 sheriff's sale, for wages due prior thereto, notwithstanding the former part owner- 
 ship. Foster et al. v. Steamboat Pilot No. 2, 0. S. i- 403. 
 
 185. Whilst a vessel is in the actual and legal possession of the sheriff by virtue 
 of a writ of foreign attachment from a common-law court of a state, the United 
 States marshal cannot lawfully execute an attachment against her issued out of 
 the District Court of the United States in admiralty in a proceeding in rem. 
 Taylor v. Carryl, 0. S, vi. 646. 
 
 186. A steam tug regularly licensed under the Acts of Congress, plying be- 
 tween ports in different states, is within the provision of the constitution as to 
 the regulation of commerce, and the observance of the special state laws regulat- 
 ing Sunday labor, is not compulsory upon such steam tug ; but it would have 
 
36 ADMIRALTY— ADOPTION. 
 
 been otherwise had the tup been engaged in towing vessels between ports of the 
 same state. The Philadelphia 4- Havre de Grace Steam Tow-boat Co. v. The Phila- 
 delphia, Wilmington^ Baltimore Railroad Co., O. S. v. 280. 
 
 187. A lien given by the general maritime law is a vested right, and the legis- 
 lature of a state can pass no law to impair it. AshbrooJc and Others v. The Golden 
 Gate, 0. S. V. 148. 
 
 lb?. State legislatures have no authoritj' to create maritime liens, or confer 
 jurisdiction on state courts to enforce such liens by proceedings in rem. Deever 
 v. Steamer Hope, N. S. ix. 683. 
 
 189. In particular cases, in which Congress has not exercised the power of 
 regulating commerce, with which it is invested by the constitution, and where the 
 subject does not in its nature require the exclusive exercise of that power, the 
 states, until Congress acts, may continue to legislate. The Lotawanna, N. S. 
 xiv. 483. 
 
 190. Hence, liens granted by the laws of a state in favor of material-men for 
 furnishing necessaries to a vessel in herliome-port in said state are valid, though 
 the contract to furnish the same is a maritime contract, and can only be enforced 
 by proceedings in rem in the district courts of the United States. Id. 
 
 191. A judgment-creditor in a state court cannot attach on execution the pro- 
 ceeds of the vessel in the registry, of the admiralty. Id. 
 
 192. Where the entry of judgment by the state court showed that the contract 
 for building a vessel was not a maritime contract, and that the remedy given by 
 the lien law of the state did not conflict with the Constitution of the United 
 States,, though the vessel was built on what the court might judicially notice was 
 an estuary of the sea, there is sufficient to give the court jurisdiction. Edwards 
 v. Elliott, N. S. xiv. 518. 
 
 193. In admiralty, cases on questions of fact, where the district and circuit 
 courts have found one wav, there will be no reversal unless for manifest error. 
 The S. B. Wheeler, N. S." xiv. 249. 
 
 194. In respect to such contracts the states may create such liens as their legis- 
 latures deem just and expedient. Edwards v. Elliott, N. S. xiv. 518. 
 
 195. The exercise of admiralty jurisdiction, in suits by foreign seamen for 
 wages, is matter of comity rather than of duty, and, generally speaking, is 
 exercised only under such circumstances as might infer the presumption of a 
 request from the foreign state ; as, for example, where a voyage is ended or 
 broken up, and the seamen discharged, or where tliere is strong reason to believe 
 that there would be a failure of remedy, in case the mariners were compelled to 
 await an opportunity of obtaining redress in their own courts, Gonzales v. Minor, 
 O. S. ii. 700. 
 
 vXIII. Priority of Claimants. 
 
 196. Where, in the admiralty, two claims are made upon the fund in the regis- 
 try of the court, one arising from a mortgage given at a foreign port, ami entered 
 upon the vessel's register for outfit and supplies for the voyage, and the other 
 upon a bill of lading, executed by the master for the voyage, for specie received 
 on board and never delivered: Held, that the latter has priority over the former 
 in the distribution of the fund. Justi Pon v. The Proceeds of the Brig Arbustci, 
 0. S. vi. 511. 
 
 ADMISSION. 
 
 1. When admission of liability by endorsees will not overcome want of demand 
 and notice. Gawtryv. Doane, N. S. vi. 714. 
 
 2. Admissions are competent against parties when parol evidence of fact shown 
 thereby would be competent. Keaior v. Dimmick, N. S. vi. 121. 
 
 3. Negotiations as an admission by an executor, that a claim remained open 
 for settlement. Calanan v. McClure, N. S. vi. 562. 
 
 ADMIXTURE. 
 
 1. What admixture of grain will not make. Morgan v. Gregg, N. S. vi. 191. 
 
 2. Mere admixture will not necessarily produce tenancy in common. Id. 
 
 3. Admixture merely will not transfer ownership. Owner may take from 
 common bulk. Denial of his right and refusal to permit it, is conversion. Id. 
 
 ADOPTION. See Descent, Distribution. 
 
 1. Adopted child — inherits as if a natural and legitimate child. See Barnsvalkr, 
 0. S. ix. 747. ' 
 
ADOPTION— AFFIDAVIT OF DEFENCE. 37 
 
 2. A child adopted under the act regulating the adoption of heirs, is entitled 
 10 inherit from the adopting parent as his heir in the degree of a child. Barn- 
 hizd V. Ferrel, N. S. xiv. 677. 
 
 3. By tlie adoption he has the rights of a child of the adopting parent without 
 being his child in fact. His identity is not changed. Id. 
 
 ADULTERY. 
 
 1. In order to find a true hill against one charged with adultery the grand jury 
 must he satisfied that he was a married man at the time of the commission of the 
 offence, and that the woman with whom the act was proved to have been com- 
 mitted was the wife of another man living at the time. Charge per Galbkaith, 
 P. J., O S. iv. 209. 
 
 2. A conveyance by a husband for the use of his wife on the execution of arti- 
 cles of separation will not be set aside on account of the subsequent adultery of 
 the wife. Dixenv. Dixen, jSt. S. xii. 465. 
 
 3. Marriage, in good faith, with a woman whose former husband is not really 
 dead, though supposed to be, is adultery. Commonwealth v. Thompson, N. S. vi. 60. 
 
 ADVANCEMENT. 
 
 1. An advancement, made by the intestate in due form, may be legally can- 
 celled by him by any unequivocal act carrying the same into execution, as by 
 surrendering or cancelling the evidence of such advancement. Wheeler v. 
 Wheeler, N. S. xiv. 684. 
 
 2. Where a wife has received from her husband during his life-time, certain 
 real estate not in lieu of a provision by will or of dower, but absolutely, such 
 gift is not to be regarded in the light of an advancement, cither at the common 
 law or under the Indiana statute. Barns v. Allen, 0. S. ix. 747. 
 
 3. An advancement in money has no effect on the share of real estate descend- 
 ing to a son. Havens v Thompson £/• Allen, N. S. xii. 460. 
 
 4. If title be taken in the name of a wife or child, it will be held an advance- 
 ment or settlement, and no trust will result. Wheeler v. Kirtland, N. S. xii. 320. 
 
 5. Conveyances to children, without consideration, will be deemed advance- 
 ments. Sanford v. Sanford, N. S. xi. 458. 
 
 6. Though the declarations of a grantor, at the time of a conveyance to his 
 sons, are admissible to show whether it was an advancement, they must not con- 
 tradict the plain terms of writing. Id. 594. 
 
 7. Where a father conveys land to his son, and receives a writing acknowledg- 
 ing the receipt of the full value of the land in dollars, in full of the son's share, 
 and relinquishing his right, the son's children will be barred from claiming any 
 of the grandfather's estate.^ Stnilhv. Smith, N. S. xi. 589. 
 
 8. A mere oral declaration by a father that he will not collect a loan from 
 his son, bat let him have it at his death, does not make an advancement. Denman 
 V, McMahin, N. S. xii. 529. 
 
 9. Advances made by testator to his child — see as to what will be considered. 
 Hutchison V. Skelton, 0. S. v. 505. 
 
 10. Co-owners of ships and steamboats, their liens for sums advanced in pay- 
 ment for the construction of the vessel — subject commented on. Pragoffv. 
 Heslep et al., 0. S. i. 747. 
 
 ADVERSE POSSESSION. 
 
 A refusal by one tenant in common to let his co-tenant come in, or partici- 
 pate in the enjoyment of the common property, is equivalent to turning him 
 out, and constitutes an adverse possession. Roberts v. Moore, O. S. ix. 25. 
 
 ADVERSE USER. 
 
 Title to ditch may be established by adverse user. White v. Chapin, N. S. 
 vi. 569. 
 
 ADVICE TO YOUNG LAWYERS. 0. S. iv. 194. 
 
 AFFIDAVIT. 
 
 The taking of an affidavit is a ministerial and not a judicial act. Kerr v. The 
 Marquis of Ailsa, O. S. iii. 698. 
 
 AFFIDAVIT OF DEFENCE. See Accord and Satisfaction. 
 
 1. Where a judgment has been taken for so much of a claim as is admitted 
 to be due in the affidavit of defence, and the amount is paid, it is a bar to any 
 
38 AFFIDAVIT OF DEFENCE— AGENT. 
 
 further proceedings to recover the balance of the claim. Brazier v. Banning, 0. 
 S. i. 441. 
 
 2. Where a defendant is not informed of the facts of the case so as to enable 
 him to swear to or to form an opinion with regard to them at the time, the time 
 for filing an affidavit of defence may be. enlarged. Lord v. The Ocean Bank, 
 0. S. i. 441. 
 
 3. Lease, reserving pecuniary rent, is within the Pennsylvania statute in re- 
 gard to affidavit of defence; Frank v. Maguire, N S. ii. 502. 
 
 4. Judgment for want of, may be taken on a foreign judgment. Luckenbach 
 V. Anderson, N. S. iv. 252. 
 
 5. The fact that defendant was decoyed into the state where such judgment 
 was obtained is not a sufficient defence. Id. 
 
 6. An affidavit of defence in an action on a note, therefore, which alleges want 
 of consideration merely, will be sufficient to prevent judgment. Lord v. Ocean 
 Bank, 0. S. i. 436. 
 
 7. Affidavit of defence to promissory note, that plaintiff had agreed to accept 
 certain goods in full payment, which had been ready for delivery to him, held 
 good defence, Christie v, Craig, 0. S. i. 436. 
 
 8. An instrument in writing agreeing to pay $150 every month for the privi- 
 lege of taking clay from certain land, is an instrument for the payment of money 
 within the Affidavit of Defence Law. Johnston v. Cowan, N. S. viii. 755. 
 
 9. In a suit on a note it is not necessary to aver in the affidavit of defence that 
 the defendant can prove the defence of usury, but that the note was really the 
 property of the payee, is sufficient. Evans v. Yoke, N. S. xi. 192. 
 
 10. An affidavit which alleges that the note in suit was given for the consider- 
 ation of land purchased from payee, and that material conditions had not been 
 performed by the payee, all of which facts the present plaintiff, who was endorser, 
 knew, and the note was taken as security, furnishes a good defence. Branson v. 
 Silverman, N. S. xiv. 752. 
 
 AFFRAY. 
 
 Where two persons are indicted for an affray, they have one common interest 
 in making their defence ; the successful defence of one enures to the benefit of 
 the other. Both must be convicted or acquitted. Hawkins v. The State, O. S 
 ii. 379. 
 
 AFFREIGHTMENT. See Admiralty, 15. 
 
 1. A contract of afi'reightment to be performed upon tidal waters, wholly 
 within the limits of a state, is a maritime contract within the admiralty juris- 
 diction of the courts of the United States. Owners of Mart/ Washington v. Ames 
 N. S. V. 692. ./J » 5 . 
 
 2. Liability of owners where bills of lading vary from contract of affreight- 
 ment. Oage v. Tirrell, N. S. v. 191. 
 
 AGENT. 
 I. Atjthoritt of Agent, and how proved, and herein op General and 
 Special Agents. 
 
 1. A merchant authorized to sell all his principal's goods within a certain 
 circuit on a commission often per cent., is to be regarded as a general agent, 
 with power to fix the price and time of payment, unless a different usage in such 
 trade is shown. Day-light Burner Co. v. Odlin, N S xi. 658. 
 
 2. An insurance agent to receive and transmit applications, is an agent to 
 receive and transmit notice. Lycoming Mut. Ins. Co. v. Sailer, N. S. xi. 191. 
 
 3. Payment of the debts of a principal by the agent, is presumed to be from 
 principal's money. Woods v. Gummert, N. S. xi. 191 
 
 4. A person may make a demand as well through an agent as by himself. 
 Ferguson v. Tut, N. S. xi. 270. 
 
 5. A general agent is one who is authorized to transact all the business of his 
 principal, or all of a particular kind, or at a particular place. Cruzan v Smith 
 N. S. xiii. 191. ' 
 
 6. A special agent is one authorized to do a specified act. Id. 
 
 7. Where a company issues to a person an open policy with blanks for the 
 risks agreed upon by him, and authority to take the premiums, he is to be deemed 
 their agent. Wass v. Maine Marine Insurance Co., N. S. xiii. 259. 
 
 8. Commercial agents have no right to sell the merchandise of their principal 
 as part of a lot, without his consent. Coes v. Nash, N. S. xiii. 451. 
 
AGENT. 39 
 
 9. Special agency, subject discussed, N. S, xiii. 657. 
 
 10. Authority to sell the bonds of a railroad cannot be inferred from being a 
 director. Tttus et uU v. Cairo ^ F. Railroad^ N. S. xiv. 252. 
 
 11. Tlie president cannot give a power of attorney to sell. Id. 
 
 12. An agent employed to make a loan and having possession of the securities, 
 is empowered to receive both principal and interest. James v, Pohlman, N. S. 
 xiv. 316. 
 
 13. Such authority being founded on possession of the securities, the debtor 
 must see that he has them before paying. Id. 
 
 14. Statements of an agent, to be admissible in evidence against the principal, 
 must have been made in the course of the business intrusted to him, Ashmore v. 
 Pcnna. Steam Towing Co., N. S. xiv. 699. 
 
 15. This rule excludes all statements not made in execution of the agency. 
 Id. 
 
 16. One having authority to sign the name of another may procure a third to 
 do it in his presence. Xorwich University v. Dana, N. S. xiv, 751. 
 
 17. An agent employed to let premises and collect rents cannot consent to the 
 substitution of a new tenant. Wilson v. Lester et al., N. S. xii. 593. 
 
 18. An action for the proceeds of property sold by one agent by orders of 
 another, can be maintained by the owner against the seller. Evans v. Wain, N, 
 S. xii. 728. 
 
 19. In emergencies has power to act for his principal without instructions and 
 is not responsible, if his action was 'in good faith, though it turn out badly. 
 Greenhafv. Moody, N. S. vii. 184. 
 
 20. Insurance by agent of insurance company to take effect on approval by 
 another agent may be valid, without the latter's approval, Ins. Co, v, Webster, 
 N. S. vii. 571. 
 
 21. Powers of agents to vary risk and waive forfeiture. North Berioick Co. v. 
 Ins. Co., N. S. vii. 571. 
 
 22. Agents may waive condition in policy for cash payment of premium and 
 give credit, Boehm v. Ins. Co., N. S. vi. 318. 
 
 23. It is a preliminary question for court, whether agency sufficiently proved, 
 to admit agent's acts and declarations in evidence. Cliquot's Champagne, N. S, 
 V. 508. 
 
 24. The affidavit for an application to remove a case in which a corporation is 
 a party may be made by an agent or employee, Vankirk v. Railroad Co., N. S. 
 
 iv. 462. 
 
 25. Debts dne a principal by a factor for goods sold on commission are not 
 discharged by the discharge in bankruptcy. Lenke v. Booth, X. S. x. 743. 
 
 26. The authority of an agent contracting for the sale of land need not be in 
 writing. Pringle v. Spaulding, N. S. viii. 572. 
 
 27. Authority of agent to submit to arbitration, damage to land of his princi- 
 pal's wife. Smith v. Sweeney, N. S. vi. 379. 
 
 28. An agent cannot be empowered by parol to insert the name of the obligee 
 in a bond. Preston v. Hull, N. S. xii. 699. 
 
 29. An agent of vendor may yield to a rescission. Quimby v. Carr, N. S. iii. 
 697. 
 
 30. A purchase on behalf of another, must be held to bo in trust for the prin- 
 cipal. Rothwell V. Drwees, N. S. iii. 50. 
 
 31. Wife may act as agent of husband and maybe appointed verbally or other- 
 wise. Goodwin V. Kelly, N. S. iv. 187. 
 
 32. An agent employed to sell goods on commission is a mere broker. Dunn 
 v. Wright, N. S. viii. 59. 
 
 33. An agent may maintain an action on a contract in his own name. Tele- 
 graph Co. V. Gildersleve, N. S. viii. 692. 
 
 34. Notaries cannot act as partners or by agents. Bank v. Barksdale, N. S. 
 T. 442. 
 
 35. The fact of a principal becoming a rebel and being within the Confederate 
 lines does not necessarily terminate an agency. Fisher v. Krutz, N. S. xi. 773. 
 
 36. Where a tran.sfer agent appointed by the directors of an incorporated joint 
 stock company, fraudulently over-issued stock, a director taking such stock 
 directly from the agent is chargeablp with constructive notice, especially where 
 the fraud would have been discoverable by an inspection of the books of the com- 
 pany. But this does not apply where he purchases from a bond fide holder, and 
 
40 AGENT. 
 
 query, whether such constructive notice would affect a firm of which the director 
 Is a member. Ketchum v. The Bank, 0. S. iii. 145. 
 
 37. Where a power of attorney is executed autliorizing the attorney "to make 
 loans and contract debts, and for such purpose use the name of the principal," 
 and the attorney makes a loan, but instead of receiving money receives s. draft 
 on New York, this is a proper exercise of his authority. Atwater v. Eoelofson, 
 O. S. iv. 549. 
 
 38. Notice of the extent of agent's authority. Bant: v. Sehaumhurg, N. S. vi. 
 246. 
 
 39. Authority of factor to bind principal. Eastern v. Clark, N. S. vi. 313. 
 
 40. The agency being established, his declarations are admissible to bind the 
 principal. Bank v. Bank, N. S. xii. 51 ; and see also Cliquot's Champagne, N. 
 S. V. 507, and Whiteside v. Margaret, N. S. x. 122. 
 
 41. The declarations of an agent are not per se evidence of agency. National 
 Mechanics' Bank v. National Bank of Baltimore, N. S. xii 51. 
 
 42. It is not the province of the court to determine the question of agency. Id. 
 
 43. The declarations of an agent are admissible against his principal, if made 
 in the execution of the agency. Earle v. Grout, N. S. xiii. 709. 
 
 44. A superintendent cannot employ a physician to attend an employee who 
 has been injured by railroad company's locomotive, and bind the company. 
 Marquette H. ^ 0. Railroad Co. v. Taft, N. S. xiii. 527. 
 
 45. Agent to sell property on specified terms, cannot delegate authority : and 
 as to effect of custom on enlarging the expressed authority. Shultz v. Harvey, 
 0. S. iv. 7CG. 
 
 46. Wife acting as agent of husband, see Gates v. Brower, 0- S. ii. 283. 
 
 47. Where a number of persons are entrusted with matters of public concern, 
 the majority may act. Louh v. Woods, 0. S. iii. 635. 
 
 48. Agent of railroad selling a through ticket is agent for each company. N. 
 S. i. 12. 
 
 49. A local board of directors, established by a foreign corporation in New 
 Tork, under regulations of the statute of that state, no matter how complete its 
 organization or how full its authority to transact business without consultation 
 with its principal, is still a mere agency, and not a distinct corporation. Robin- 
 son V. Life Assurance Co., N. S. viii. 166. 
 
 50. Therefore a contract, as of insurance, made by this New York board with 
 the plaintiff, a citizen of Virginia, was the contract of the foreign corporation 
 with plaintiff, and the government of the foreign corporation being a neutral and 
 having recognised the government of the plaintiff as-a belligerent, the contract 
 was not suspended by the civil war in America, and payment of premiums to a 
 sub-agent of the corporation, at Richmond, was a valid payment to the corpora- 
 tion. Id. 
 
 51. A party dealing with an agent for a special purpose must ascertain, at his 
 own peril, the agent's power. The National Iron Co. v. Bruner, N. S. viii. 244. 
 
 52. The managing agent of a steamboat employed to secure freights, cannot 
 speculate on such freights for his own advantage. Reaetal. v. Copelin, N. S. x. 61. 
 
 53. The statements of an agent are admissible to charge the principal., only 
 when they are part of the res gestce. Whiteside v. Margarel, N. S. x. 122. 
 
 54. Agency cannot be proved by the statement of the agent alone. Id. 
 
 55. It is a well settled rule of equity, that all gifts, contracts or benefits from 
 a principal to an agent are constructively fraudulent and void. Comstock v. 
 Comsiock, N. S. x. 123. 
 
 56. The fact that an instrument is made payable at a bank does not make the 
 bank an agent or payee to receive payment, unless he actually deposits the 
 instrument there, or in some express manner authorizes the bank to act for him. 
 Ward V. Smith, N. S. viii. 354. 
 
 57. When an instrument is lodged with a bank for collection, the bank becomes 
 the agent of the payee or obligee to receive payment. The agency extends no 
 further, and without special authority an agent can only receive payment of the 
 debt due his principal in the legal currency of the country, or in bills which pass 
 as money at their par value by the common consent of the community. Id. 
 
 58. Authority to receive payment implies authority to r.eceive it in whatever 
 was regarded as money at the time and place of payment. Confederate notes 
 
 .being so regarded, and being received in good faith "by the agent, were a valid 
 medium of payment, as between the plaintiff and the corporation. Id. 
 
AGENT. 41 
 
 59. The snmo rules apply ns to agents of public bodies and private persons. 
 Thorn v. Commissioners, N". S. iv. .307. 
 
 60. Authority, without restriction, to an agent to sell, carries with it authority 
 to warrant. Scliuchardt v. Aliens, N. S. iv. 53. 
 
 61. Of defendant in suif before justice may oflfer judgment. Randall v. Wnit, 
 N. S. iv. 637. 
 
 02. Evidence admissible to show agency in contract signed in his own name. 
 Lerned v. Johns, N. S. iv. 703. 
 
 63. Evidence of frequent sales of property of one person by another is com- 
 petent to prove agency. Bragg v. Railroad Co., N. S. iv. 703. 
 
 64. AATiere one employed to sell property for another receives securities for 
 the purchase-money, and transmits them to his principal, his implied authority to 
 receive payment on the securities ceases with his possession. Strachan v. Mux- 
 low, N. S.'ix. 259. 
 
 65. Where the vice-president of a railway company had been, for years, in the 
 habit of appointing local agents to look after its timber-lands, and these had sold 
 timber, on one of which contracts of sale the company had- brought suit, a jury 
 would be authorized to find tliat the company knew and acquiesced in the authority 
 thus exercised, and was bound by such a contract of sale. Chicago ^' Northwest- 
 ern Railroad Co. v. James, N. S. ix. 259. 
 
 66. Person receiving money or credit, and cognisant of disregard of instruc- 
 tions by agent, in application of payment, liable to principal. Reynolds v. 
 Kenyan, N. S. T. 181. 
 
 67. Person putting agent in position to perpetrate fraud, liable for loss. Id. 
 
 68. An agent, acting under a general power of attorney to draw or endorse 
 checks, has no authority to overdraw his principal's account at the bank. Union 
 Bank V. Mott, N. S. iii. 60. 
 
 69. If over drafts are made on such account, by the agent, through a fraudu- 
 lent collusion with the book-keeper, the loss must fall on the bank. Id. 
 
 70. Agent to sign, draw and endorse notes and hills, has not implied authority 
 to use principal's name in joint transactions with others. Bank v. Schaumburg, 
 N. S. ri. 246. 
 
 71. Xoiice of the extent of agent's authority. /(/. 
 
 72. If a creditor of a principal settles with his agent, and takes a note for the 
 debt, giving a receipt therefor as for actual payment, the debt as to the principal 
 will be discharged. Brown v. Telegraph Co., N. S. ix. 315. 
 
 73. Evidence of an agent having acted as such in similar transactions with 
 different persons is admissible. Morehea v. Murray, N. S. ix. 445. 
 
 74. Where the defendant's agent wrote to plaintiflF (a bank), that he had de- 
 posited certain moneys to plaintifi^'s credit, who thereupon credited the defendants, 
 they will not be bound, if it appears the agent only deposited his check which 
 turned out worthless. Savings Inst. v. Allentown Bank, N. S. x. 532. 
 
 75. Where such representations are contrary to the interests and duty of the 
 corporation, as that he will release, or has authority to release, the subscription, 
 it is not a reasonable presumption that he has such authority, and a subscriber 
 on such terms would heparticeps criminis, and held to all the responsibilities of 
 a bond fide subscriber. Custard v. Gas and Water Co., N. S. ix. 746. 
 
 76. Authority of factor to bind principal. Easlon v. Clark, K. S. iii. 313. 
 
 77. When no title passes, upon transfer of property by agent. Id. 
 
 78. If general agent acts contrary to special instructions, principal is bound as 
 to third parties. JEdwards v. Schaffer, N. S. vii. 510. 
 
 79. Where a sub-agent is employed by an agent, the principal may treat him 
 as his agent. Miller v. F. §• M. Bank, N. S. ix. 575. 
 
 80. An unauthorized submission to arbitration may be ratified by acts of 
 principal. Lowinslem v. Mcintosh, N. S. ii. 247. 
 
 II. Liability and duties op an Agent. 
 
 61. An agent's liability to his principal fornegligence by which a third person 
 has been injured, is only contingent, while it is direct and certain to the party 
 injured. Dodge et al. v. Bache, N. S. iii. 244. 
 
 82. An action against the principal by the party injured is res inter alios acta 
 as to the agent, and the record is not admissible in evidence against him, except 
 as to the amount of damages. Id. 
 
 83. Therefore the rule that excludes an agent from testifying for his principal 
 
42 AGENT. 
 
 in such an action, is not founded in clear reason, and should not be extended ; 
 and his testimony should not be rejected, except upon the quantum of damages, 
 unless his liability over has been clearly proved. Dodge et al. v. Bache, TS. S. 
 iii. 244. 
 
 84. Quere, whether an agent employed by his principal to effect a policy of 
 insurance is liable for a breach of his duty as agent if he employ another person 
 to get the policy effected by a policy-broker. Cahill v. Dawson, O. S, vi. 176. 
 
 85. Principal may recover in tort, for damages caused by his agent's breach 
 of duty. Ashley v. Root, N. S. ii. 378. 
 
 86. When a person enters into a contract as agent, he warrants his own au- 
 thority, unless very .special circumstances, or an express agreement, relieve him 
 from that responsibility. WhHe v. Madison, N. S. ii. 663. 
 
 87. Where one pretending to be an agent has contracted as such without au- 
 thority, the party contracted with has the right to repudiate the contract and hold 
 the assumed agent immediately responsible for damages, without waiting for the 
 time when an action might be maintained on the contract itself. Id. 
 
 88. The damages in such a case are measured not by the contract, but by the 
 injury resulting from the agent's want of power. Id. 
 
 89. If special damages should be incurred inconsequence of the agent's failure 
 to bind his principal, such as the costs of an unsuccessful action against the prin- 
 cipal to enforce the contract, they might be recovered. Id. 
 
 90. If the act of the agent be fraudulent, an action for the deceit would lie, 
 but it would be a concurrent remedy with the action on the warranty. Id. 
 
 91. Agent has no right to retain money paid him for his principal, although 
 the latter could not have recovered it legally from the payer. Murray v. Van- 
 derhilt, N. S. ii. 765. 
 
 92. Agent of known principal — liability of agent — subject discussed. 0. S. 
 V. 325. 
 
 93. Agents are not permitted to deal with their principal except upon showing 
 the most entire good faith.' Comstock v. Comstock, N. S. x. 123. 
 
 94. Where an agent receives certain shares of stock, "to do the best he can 
 with it, and have one-half the proceeds," he has no interest in the stock until it 
 is sold, and must account with his principal for the whole amount and the divi- 
 dends received on it. Wight v. Wood, N. S. x. 124. 
 
 95. Ordinarily, an agent contracting in behalf of the government, or of the 
 public, is not personally bound by the contract. Perrin v. Lyman's Adm'x, N. 
 S. X. 188. 
 
 96. A quartermaster in the army of the United States during the late rebellion 
 employed a person as a clerk, put his name on the government pay-rolls, with 
 the names of the other clerks of his department, and paid him S75 monthly out 
 of the funds of the United States, said clerk signing the usual vouchers.' He 
 worked for the government, and performed no service whatever for the quarter- 
 master individually. Held, that the quartermaster was not personally liable to 
 such clerk. Id. 
 
 97. An agent attending a sale for his principal has no right to buy for himself 
 or any one else at a less price than would secure his principal's claim Walker 
 V. BUI, N. S. X. 276. 
 
 98. A del credere agent is primarily liable to satisfy his principal the price of 
 goods sold. Lewis v. Brehme, N. S. x. 469. 
 
 99. An agent will not be personally liable on a written contract signed as 
 agent. McClernan v. Hall, N. S. x. 531. 
 
 100. Duty to render accounts. Gallup v. Morrill, N. S. vii. 633. 
 
 101. Not party to contract signed by him as agent, and therefore competent 
 witness. Lytle v. Bond, N. S. vii. 829. But see post, pi. 110, 137. 
 
 102. Refusal to deliver goods to principal except upon terms principal is not 
 bound to comply with, renders agent liable, Safford v. Kingsley, N. S. vii. 830. 
 
 103. Accepting employment hostile to the interests of his employer, is guilty 
 of breach of contract, and maybe discharged therefor. Morrison v Oqdensburqh 
 ^ Champlain Railroad, N. S. viii. 382. ■' •' 
 
 104. Receiving money on trust and wholly neglecting dutv, converts it, is 
 liable in tort, or money had and received. Reeside v. Reeside, N. S. v 247 
 
 105. Agent who buys at sale of principal's land by third party, is not trustee 
 of such land for principal. Kennedy v. Keating, N. S. iii. 632. 
 
AGENT. 43 
 
 106. Liability when contracts to pay personally. Whitcomb y. Kephart, N. S. 
 T. 440. 
 
 107. Action will not lie against agent for balance of moneys to be laid out in 
 special manner, where trust has actually commenced. Reeside t. Reeside, N. S. 
 V. 247. 
 
 108. Liability of bank for its officers' acts, within apparent scope of authority. 
 Reynolds v. Kenyan, N. S. v. 181. 
 
 109. An action to recover money paid for the sale of an agency will lie, where 
 there was fraud in the party selling. Baker v. Spencer, N. S. x. 347, 
 
 110. Draft accepted by E. T. S., agent, held to bind him personally. Slawson 
 T. Loring, 'S. S. ii. 698. 
 
 111. As to action against an agent for refusing to deliver bonds bought for the 
 principal, see Simkins v. Low, !N". S. vii. 508. 
 
 1 12. Under an agreement to insure generally an agent should obtain full in- 
 surance if possible. Beardsley v. Davis, N. S. viii. 378. 
 
 113. The value of the property destroyed is the measure of damages in an 
 action against an agent for not procuring full insurance. -Id. 379. 
 
 114. In an action against an agent for not collecting and paying over the 
 amount of a draft placed in his hands for that purpose, it is not necessary to 
 allege a previous demand in the declaration. Such demand would only be neces- 
 sary where the agent had collected the money and given notice of the fact to his 
 principal. Drexel y. Raimond, 0. S. ii. 445, 
 
 115. When liable to purchaser for fraud practised by him in sale of chattels. 
 Gulchess V. Whiting, N. S. vi. 60. 
 
 116. Exceeding his powers becomes principal and acquires rights of one. 
 Kent V. Bornstein, 'S. S. vi. 503, 
 
 117. Right to recover money given for counterfeit bill. Id. 
 
 118. His duty to disclose his agency — failure will make him personally liable 
 to persons unaware of it. Baldwin v. Leonard, N. S. vi. 563. 
 
 119. Knowledge of agency by one partner, not constructive knowledge by his 
 firm. Id. 
 
 120. Personal liability of agent in such case. Id. 
 
 121. When an agent pays money of his principal to a person not authorized to 
 receive it, the principal may sue the receiver in assumpsit for money had and re- 
 ceived, but the bringing of such action discharges the agent. Van DyJce v. The 
 State, 0. S. iii. 54. 
 
 122. Where an agent rightfully receives money for his principal, which ought 
 to be paid over by the principal to a third person, such third person cannot main- 
 tain an action against the agent for the recovery, though the agent have never in 
 fact paid it over to his principal, and though the agent have notice of the claim 
 made by such third person. Costigan v. Newland, 0. S. i. 30. 
 
 123. One falsely representing himself as agent of a committee to order stone 
 for a church — liable for the stone furnished. Randall v. Trimen, 0. S. v. 509. 
 
 124. Agent's promise to pay creditor of principal is an original undertaking. 
 Goodwin Y. Bowden, N. S. vii. 439. 
 
 125. Fraud of, in selling his principal's property, and liability of third persons 
 dealing with him ; see Le Breton v. Peirce, 0. S. ix. 737. 
 
 126. Agent for foreign principal, selling goods by sample without disclosing 
 his agency, liable in case on the implied warranty. Allen v. Schuchardt, N. S. 
 i. 13; and see foot-note (4) to Id., p. 17. 
 
 in. Lien of Agents and Eactoks. 
 
 127. When factors have made large advances, or incurred expenses on account 
 of the consignment, the consignor cannot by subsequent orders control their right 
 to sell at such a time as, in the exercise of a sound discretion, they may deem 
 best to secure indemnity to themselves and promote the interests of the consignor. 
 Field Y. Farrington, N. S. x. 61. 
 
 128. The factor has a lien for the charges and expenses for converting a 
 security into money, and is only accountable for the balance. Sheldon v. Raveret, 
 N. S. vii. 379. 
 
 129. A factor who is under advances may sell, after a reasonable time, for the 
 best price he can get, notwithstanding the consignor's orders. Mooney v. Musser, 
 N. S. xiv, 55. 
 
 1 30. A consignment of goods under a special contract, in which the consignee 
 
44 AGENT. 
 
 gives his acceptances for their value, payable partly at sight and partly at a 
 future day, and agrees to account for the whole price, to guarantee the sales, and 
 to receive a commission of ten per cent., with other stipulations, making him 
 primarily liable for the price of the goods, falls within the principle of Ex parte 
 White, in re Nevill, Law Rep. 4 Ch. App. 397, and is a consignment on sale, as 
 distinguished from a consignment on del credere guaranty. In re Chamberlaines, 
 N. S. xiv. 688. 
 
 131. Though a consignor may reserve a special property in goods consigned 
 until bills of exchange, drawn for their price, are paid to the bill-holders ; yet 
 he cannot, in a consignment on sale to a consignee, in which no such special 
 property is reserved to protect bills drawn upon the consignee for their price, 
 reserve a special property in notes and accounts, which the consignee may take 
 for the goods, from persons to whom the consignee may sell them, as against 
 other creditors of the consignee, who goes into bankruptcy. Id. 
 
 132. Where stock sold by an avowed owner, dealing as owner, turns out after- 
 wards to be spurious and void, by reason of its having been illegally issued, the 
 purchaser may recover back the price paid, though the seller was ignorant of his 
 want of title. Ketehum v. Bank, 0. S. iii. 145. 
 
 ] 33. A pledgee of stock as collateral security, with power to sell at public 
 sale without notice and to assign, coupled with a blank power for that purpose, 
 who has actually transferred the stock into his own name, stands as to third per- 
 sons in the light of owner, though himself still subject it seems to the pledgor's 
 right to redeem ; and is therefore liable to an action by a purchaser from him for 
 the price paid, in case the stock turns out spurious. Id, 
 
 134. What will not amount to an account stated between principal and factor. 
 Cartwright v. Greene, N. S. vi. 435. 
 
 135. Evidence of title to protect the pledgee.- Cartwright v. Wilmerding, N. 
 S. ii. 122. 
 
 IV. Liability of Principal for act op the Agent, and how far thied 
 
 PARTIES ARE BOUND TO ASCERTAIN THE EXTENT OF THE AgENT's POWERS. 
 
 136. Where principal bound by contract of agent — General rule — Bill of 
 Lading an exception. McFyer v. Steele, O. S. iv. 188. 
 
 137. A sealed instrument in these words, " Twenty days after date I promise 
 to pay to J. T. or order, $442, value received. Given under my hand and seal," 
 &c., and signed " B. W. (seal), agent for C. C." Beld, the obligations of the 
 agent only, and therefore not admissible evidence against C. when unaccompanied 
 with the offer of extraneous explanatory proof Dawson v. Cotton, 0. S. iv. 189. 
 
 138. When an agent is employed by his principal to do an act which is not 
 manifestly illegal, and which he does not know to be wrong, the law implies a 
 promise of indemnity by the principal for such losses and damages as flow di- 
 rectly and immediately from the execution of the agency. Moore v. Appleton, 
 O. S. iv. 189. 
 
 139. A master is bound to exercise proper care and diligence in the selection 
 of the agencies and instruments with or upon which he employs his servants. 
 Noyes v. Smith and Lee, 0. S. v. 615. 
 
 140. If a railroad company permits their agents to hold them out to the public 
 as common carriers to places beyond the line of their own railroad, they are 
 thereby estopped from denying the authority of such agents to make such con- 
 tracts. Perkins v. Railroad Co., 0. S. viii. 734. 
 
 141. The borrower will be bound by the representations of his agent made to 
 the lender, that the debt was honest and would be paid. Sage v. Wright N S. 
 xiii. 719. 
 
 142. An agreement by an agent in the course of his business, is binding on 
 the corporation employing him. Adams Express Co. v. Schlessinger, N. S. xiv. 196. 
 
 143. A party who purchases goods from an agent, sold to pay his own debts, 
 is not liable to the principal if the agency was not disclosed. Koch v. Willi, N. 
 S. xiv. 52. 
 
 144. The limitation of the amount of capital stock of the company in its char- 
 ter, held not to prohibit the Board of Directors nor their agent thus appointed, 
 as regards third persons, from increasing the number of shares of stock beyond 
 the proportion between their par value and the capital stock. Ketehum v. Bank, 
 O. S. iii. 145. 
 
 145. One whose property has been sold by another without authority, with his 
 
AGENT. 45 
 
 knowledge, but without his cognisance, may recover its value. Bragg v. Railroad 
 Co., N. S. iv. 768. 
 
 146. Notice to the agent was notice to the insurer ; and by insuring the policy 
 the latter waived the condition, In.'Hirance Co. r. Hall, N. S. iii. 417. 
 
 147. Eunds of principal, deposited by the agent in banlc, are not liable to 
 attachment for debt of agent, unless it is shown that part belongs to such agent. 
 Bank V. Jagger.i, N. S. ix. 578. 
 
 148. Third persons will not be affected by a limitation on his authority unless 
 brought to their notice ; and what will be sufficient to. put a person on inquiring, 
 is a question of fact for a jury. Dag-light Burner v. Odlin, N. S. xi. 658. 
 
 149. Where it is sought to make the principal liable for the acts of a special 
 agent, the authority of the agent must be proved. Fish v. Davis, N. S. xi. 719. 
 
 150. The principal is not estopped by the declarations of the agent as to his 
 authority. Id. 
 
 151. Ratification in order to bind must be with full knowledge of the facts. Id. 
 
 152. Where the keeper of a boarding-house of a railroad company had from 
 time to time purchased provisions for the use of the house, and the bill had been 
 paid by the company, the vendor was entitled to regard him as agent pro tanto 
 of the company. P., W. and B. E. Co. v. Weaver, N. S. xi. 50. 
 
 153. A debtor is authorized to pay an agent entrusted with a security any sum 
 wliich is due upon it. Doubleday v. Kress, N. S. xi. 123. 
 
 154. The ostensible authority attributed to a party entrusted with a security 
 is to receive payment according to its terras. Id, 
 
 155. Where a party by simple contract deals with an agent who does not dis- 
 close his agencv, he may be made liable in a suit in the name of the principal. 
 Cu'v.-r V. Bigelow, N. S.'xi. 135. 
 
 156. When an agent purchases a note and mortgage of his principals, taking 
 an assignment to himself instead of a discharge, and paying the creditor, who is 
 not aware of the agency, more than annual interest, the liability of the creditor 
 is the same as if the agent purchased in his own behalf. Id. 
 
 157. When there is testimony tending to show notice of the agency, it should 
 be submitted to the jury. Id. 
 
 158. Where an agent secures a personal debt by a mortgage in his own name, 
 on his principal's property, there is no presumption that the principal authorized 
 it. Walfley v. Rising, N. S. xi. 262. 
 
 159. A subsequent purchaser of the property cannot avoid a sale made in 
 good faith upon sufficient consideration, simply on the ground that he was ignorant 
 of it. Id. 
 
 160. A principal employing an agent to do an illegal act is responsible, whether 
 the agent acts ignorantly or malicioasly. Haynes v. Jungren, N. S. xi. 262. 
 
 161. The principal is bound by the acts of a general agent, although he may 
 have violated private instructions. Cnizan v. Smith, N. S. xiii. 191. 
 
 162. The knowledge of an agent of the adverse possession of land, is the 
 knowledge of his principal, and will prevent the purchase being bond fide. Rus- 
 sell V. Sweezey, N. S. xi. 458. 
 
 163. Principal is not bound by act of special agent if he exceeds his authority. 
 Cruzan r. Smith, N. S. xiii. 191. 
 
 164. Third parties must ascertain extent of special agent's authority. Id. 
 
 165. Delivery to agent of grantor, with orders to deliver it presently to grantee, 
 passes title at once. Ernst v. Reed, N. S. vii. 573. 
 
 166. Delivery to third person by direction of grantee is sufficient. Hatch v. 
 Bates, N. S. vii. 442. 
 
 167. Vendor having informed the agent sent to buy goods of his price, and the 
 agent, though he had no authority to make a bargain, having taken away the 
 goods, vendor may recover the price named. Booth v. Bierce, N. S. iii. 254. 
 
 168. As to the unlawful consignment of property by an agent, see Le Breton 
 V. Peirce, N. S. i. 35. 
 
 169. An agent of a bank who in general terms is authorized by a by-law or 
 otherwise to certify checks drawn upon the bank, cannot certify his own checks 
 when he has no funds to his credit, so as to make the bank liable. Claflin v. 
 Farmers' and Citizens' Bank, N. S. ii. 92. 
 
 170. Note signed by L. L. F., treasurer, is corporation note. Draper v. 
 Mass. Steam Heating Co., N. S. ii. 698. 
 
46 AGENT. 
 
 171. Liability of owner of a building for carelessness of workmen employed 
 in repairing. Brachett v. Suhke, N. S. ii. 63. 
 
 172. The bank by putting a person at the desk of the receiving-teller makes 
 him an agent as to parties delivering money, &c. Hotchkiss v. Bank, N. S. iv. 
 S81. 
 
 173. The admissions of an agent are admissible against his principal only 
 ^where they accompanied the transaction so as to be a part of the res gesta. 
 
 Hazleton v. Union Bank, N. S. xii. 464. 
 
 174. An agent cannot pledge or mortgage goods to secure an advance on his 
 own account. Bank v. Nelson, N. S. viii. 309. 
 
 175. Held, on the construction of the charter of the New York & New Haven 
 Railroad Company, that a resolution of the board of directors of that company 
 by which Robert Schuyler was appointed " transfer agent " of its certificates of 
 stock, was a valid delegation of power, and that certificates of stock issued by 
 Schuyler as such agent were binding on the company. Ketchum v. The Bank, 
 0. S. iii. 145. 
 
 176. Where the representations made by an agent to obtain subscriptions are a 
 part of a scheme of fraud, participated in by the officers authorized to transact 
 the business of a corporation, or where they are such as the subscriber may rea- 
 sonably presume the corporation to have authorized, they are admissible to prove 
 the fraud by means of which the subscription was procured. Custer v. Gas and 
 Water Co., N. S. ix. 746. 
 
 177. The defendants were responsible for the acts of their agents, as if they 
 had deposited a worthless check. Savings Inst. v. Allentovin Bank, N. S. x. 532. 
 
 178. Refusal by an agent to perform a contract, is the refusal of his employer, 
 and occasions a breach of contract on the part of the principal. Keeneyv. Grand 
 Trunk Railroad Co., N. S. x. 662. 
 
 179. The declarations of an agent not made in the course of his agency are 
 not binding on his principal. Bennett v. Holmes, N. S. x. 193. 
 
 180. Where an agent being specifically instructed to contract for. a vessel in 
 his own name, .afterwards sold her, and put the proceeds in his pocket, the prin- 
 cipal's right is gone as against a bond Jide purchaser. Calais Steamboat Co. v. 
 Scudder, N. S. iii. 52. 
 
 181. Where a city is the vendor of water to her citizens, the officers in charge 
 of the waterworks and the city stand in the relation of principal and agent, and 
 the city is liable for their negligence and irregularities. City qf Philadelphia v. 
 Gilmartin, N. S. xii. 791. 
 
 182. But'where, for the purpose of proving fraud, the offer was to show, by a 
 previous subscriber for six shares, that he was induced bythe president to cliange 
 his subscription to twenty-six shares on receiving from the president a release, in 
 writing, from the payment of twenty shares, it was construed to be an offer to 
 show a release from the company, and the court below erred in rejecting it. 
 Custer V. Gas and Water Co., N. S. ix. 746. 
 
 183. rive per cent, per month on the subscription, payable after failure for 
 thirty days to pay the call, though denominated interest, is not merely interest 
 in the ordinary sense Of the term, but is obviously a penalty to enforce payment, 
 and is agreeable to the act that payment be enforced either by forfeiture of the 
 stock itself or by a penalty of five per cent, per month for delay. Id. 
 
 184. Agent becoming personally liable, does not change relation of princi- 
 pal and agent. Dow v. Worthen, N. S. v. 248. 
 
 185. How far principal is affected by his agent's know;ledge acquired in other 
 transactions — subject discussed. N. S. iv. 138. 
 
 186. Knowledge of agent that party from whom he purchases is not the owner 
 of goods is notice to the principal. Dresser v. Norwood, N. S. iv. 307. 
 
 187. Knowledge of the agent is not notice, either actual or constructive, to his 
 principal. Brown v. Bankers' Sr Brokers' Telegraph Co., N. S. ix. 315. 
 
 188. What ratification of unauthorized acts necessary to make them binding 
 on principal. Combs v. Scott, N. S. vi. 563. 
 
 189. An agent with restricted power to sell land at a given price cannot bind 
 his principal by representations as to quantity or quality. Iron Co. v. Bruner, 
 N. S. viii. 244. 
 
 190. If general agent acts contrary to special instructions, principal is bound 
 as to third parties. Edwards v. Schaffer, N. S. vii. 510. 
 
AGENT. 47 
 
 191. Insurance by agent of insurance company, to take effect on approval by 
 another agent, may be valid without the latter's approval. Ins. Co. v. Webster, 
 N. S. vii. 571. 
 
 192. 'When principal not bound by agent's receipt and use of purchase-money. 
 Easton V. CJark, N. S. vi. 313, 
 
 193. Principal liable for fraud of agent by acts in the course of legitimate 
 business. Exchange Bank v, Monteath, N. S. iii, 700. 
 
 194. Order by debtor to his agent having funds to pay creditor, is appropria- 
 tion of the amount. Goodwin v. Bowden, N. S. vii. 439. 
 
 195. An agent may clothe his act with all the indicia of authority, and yet the 
 act may not be within the real or apparent power. The principal is responsible for 
 the apparent power — not for the appearance of the act if unauthorized. Me- 
 chanics'' Bank V. Railroad Co., 0. S. iv. 717. 
 
 196. The employment of an agent in situations of trust is not such a recom- 
 mendation as to render him liable to others whom the agent has deceived to their 
 injury, except where the fraud is committed in doing the principal's business. Id. 
 
 197. The doctrine of estoppel is not applicable in this case. The false certifi- 
 cate contains no representation or admission which any third party may accept as 
 addressed to himself, and intended to influence his conduct. Id, 
 
 198. Where the plaintiff and defendants were owners of separate parcels of 
 grain which were stored with the same warehouseman, such warehouseman, in 
 delivering the grain, acted as the agent of the owner who directed the delivery, 
 and such owner was responsible for bis acts in regard to such delivery. Cobb v. 
 Dow:, 0. S. i. 178. 
 
 199. At foot of charter-party were the words, " By authority of, and as agents 
 for, M. A. H. Schwedersky of Memel," followed by the signatures of plaintiffs and 
 defendants. Defendants personally liable for breach of charter-party. Lennard 
 V. Robinson, O. S. iv. 122. 
 
 200. Where a corporation had stock at its disposal and gave an agent power 
 to sell it in mai-ket, and issue certificates therefor, any person purchasing it of an 
 agent in good faith and paying value, would acquire a perfect title to it, although 
 the agent by a secret fraud intended the transaction for his own benefit, and used 
 the funds he received. Bank v. Railroad Co., 0. S. iv. 717. 
 
 201. But no right would in such case be acquired by one not dealing with the 
 agent in good faith or paying nothing for the stock ; and the certificate given such 
 person would be void. Id. 
 
 202. Schuyler, the transfer agent of the New Haven Railroad Company, had 
 no power to issue certificates for stock, except upon a transfer on the company's 
 books by a previous owner and a surrender of that owner's certificate. He was 
 merely an agent for making transfers, and had no general power to issue certifi- 
 cates. Id. 
 
 Eevocatioit of the Potvee op an Agent. 
 
 203. A commission merchant who sella before notice of the revocation of his 
 authority is not liable in trover for the goods sold. Jones v. Hodgkins, N. S. 
 xiii. 262. 
 
 204. The general rule of the common law that the authority of the agent 
 ceases with the death of the principal, stated and afiirmed. Steere v. Ellis, 0. S. 
 ii. 631. 
 
 205. The only recognised exception to the general rule above stated is where 
 a power is coupled with an interest, in which case it survives the person giving 
 it, and may be executed after his death. Id. 
 
 20C. An agency is revoked by war. Howell v. Gordon, N. S. ix. 516. But 
 Bee Robinson v. Insurance Co., N. S. viii. 166. 
 
 207. Where, in' a power with a clause of irrevocability, the agreement was to 
 give the agent a certain sum and portion of the proceeds of the sale he was au- 
 thorized to make, for his compensation, and he expended time, labor and money 
 thereunder, the power was not thereby rendered irrevocable. Blackstone v. 
 Buttermore, N-. S. vii. 108. 
 
 208. An insurance agent, by his contract, was to solicit new insurances, and 
 to collect premiums on renewals of former ones. On the new ones, and on the 
 renewals, so long as they should be collected by him, and paid to the company 
 without other expense to it, he was to have certain specified commissions. Ilekl, 
 that his abandonment of soliciting new insurances would be good ground for the 
 
48 AGENT— AGREEMENT. 
 
 company to terminate his agency for both purposes ; but if the company failed to 
 discharge him for such cause, and he continued with its assent to collect the re- 
 newal premiums, then his right to commissions thereon continued ; and if the 
 company subsequently refused, without other good cause, to allow him to collect 
 renewals, he would be entitled to damages. Myers v. Insurance Co., N, S. ix. 82. 
 
 VI. Compensation op Agents. 
 
 209. Earns commissions when he finds a purchaser at the price, though sale 
 never completed, from defect of title and without his fault. Doty v. Miller, N. S. 
 V. 120. 
 
 210. A general agency for a life insurance company is like any other 
 agency, revocable at the will of either party, subject to the claim of the other 
 party for such damages as the contract may entitle him to. Myers v. Knicker- 
 bocker Life Ins. Co., N. S, ix. 82. 
 
 211. Where the contract of appointment does not give the agent an exclusive 
 right to represent the company, the latter may appoint other agents, but the ap- 
 pointment of another agent in the same place, whose operations materially lessen 
 the advantages of the contract to the first agent, is a breach of the contract by 
 the company, and the agent may terminate it, or have an action for damages. Id. 
 
 212 The abandonment by the agent of a substantial part of his principal's 
 business, is a good ground of terminating his agency ; but if the principal assents 
 to such abandonment, the authoriy of the agent as to the rest of the business 
 continues. Id. 
 
 213 Damages in such case, when counsel fees, agent's commissions and pre- 
 mmm for exchange, may be included. Blanchard v. Ins. Co., N. S. vi. 508. 
 
 2H. As to suit brought in assumpsit for breach of a contract between an 
 insurance agent and his company, see Ensworth v. New York Co., N. S. vii. 
 332. 
 
 215. Twenty per cent, for collection of small book accounts, not unreasonable. 
 Wynkoop v. Shardlow, N. S. v. 317. 
 
 216. Where agent has obeyed instructions, he is entitled to reimbursement 
 from principal for all damages he has sustained. Eowe v. Buffalo, ^c. Railroad 
 Co., N. S. ii. 440. 
 
 VII. Undisclosed Pkinctpal. 
 
 217. Agent for foreign principal, selling goods by sample without disclosing 
 his agency, liable in case on the implied warranty. Allen v. Schuchardt, N. S. 
 1. 13. 
 
 AGREEMENT. See Attorney ; Conteact ; Covenant ; Evidence ; Frauds ; 
 Statute of Frauds. 
 
 1. Where, after a settlement and giving a note, there is an agreement to pay 
 more on a certain contingency, the agreement is not merged. Smith v. Holland, 
 N. S. xi. 589. 
 
 2. An oral agreement connected with a written contract mny be proved if suT)- 
 Ecquent. Id. 
 
 3. An agreement to extend the time of payment of a note, to be valid, must 
 be supported by a consideration. Marcellus v. Countrymen, N. S. xiii. 261. 
 
 4. Construction and validity of, for purchase of real estate. De Beerski v. 
 Paige, N. S. vi. 564. 
 
 5. If, with a full knowledge of the facts, a person ratify an agi-eement which 
 another party has improperly made for him, he makes himself a party to it, as 
 much as if the original agreement had been made with him. Gregg v. Drakely, 
 N. S. ix. 192. 
 
 6. Courts should give effect to an agreement for the adjustment of a contro- 
 versy, unless the case shows bad faith on the part of one of the parties. Doyle 
 V. Donnelly, N. S. ix. 192. 
 
 7. An agreement to send plaintiffs all the iron lying at a certain place, is not 
 a warranty, and if the iron is not there an omission to send is no breach. Ro- 
 binson V. Punt, N. S. X. 342. 
 
 8. The term "secures the payment of the purchase-money" in an agreement 
 for the sale of real estate, does not signify payment in money, but Implies a term 
 of credit. Foot v. Wibb, N. S. x. 470. 
 
 9. An agreement to sell real estate, that fails to fix the term of credit or the 
 security for the purchase-money, is void for uncertainty. Id. 471. 
 
AGBEEMENT. 49 
 
 10. It is not necessary to constitute nn agreement that a proposition made by 
 letter sliould be accepted expressly ; it is sufficient if acted upon and complied 
 with. Beardsley r. Davis, N. S. viii. 377. 
 
 11. Agreement between states relative to jurisdiction of their respective courts 
 over certain territory; see Commonwealth v. Frazce, 0. S. v. 167. 
 
 12. What is a material alteration of. IlLiybee v. Sniffin, 0. S. r. 311. 
 
 13. Heirs or devisees can compel an executor or administrator to pay the 
 purchase-money remaining unpaid upon lands purchased by the testator or in- 
 testate, and held by him, under a contract, at the time of his death, out of the 
 assets in the hands of such executor or administrator. Lamfort et al. v. Beemun 
 et al, N. S. i. 238. 
 
 14. A person may make an agreement which will bind hira legally to make a 
 particular disposition of his property by last will. Johnson v. Hubbell et al., O. 
 S. T. 177. 
 
 15. A court of equity will decree the specific performance of such agreement 
 upon the principles which govern the court in the exercise of this branch of its 
 jurisdiction. Id. 
 
 16. Although the agreement is by parol, if there is a part performance of such 
 a character as, upon the principles recognised by the court, will take a parol 
 agreement out of the Statute of Frauds, then there is nothing peculiar about an 
 agreement of this kind to exclude it from the operation of those principles. Id. 
 
 17. If one party to a parol agreement has wholly or partially performed it on 
 his part, so that its non-fulfilment by the other party is a fraud, the court will 
 compel a performance. Id. 
 
 18. Although a party has a right to the protection of the court, if that pro- 
 tection cannot be given him without invading the rights of innocent parties, its 
 aid will be refused. Id. 
 
 19. Agreement which may be fully performed within a year, not within the 
 Statute of Frauds. (New Hampshire.) Esti/ v. Aldrich, N. S. vi. 248. 
 
 20. Agreement for sale of lands signed by vendee only, void. De Beerski v. 
 Paige, N. S. vi. 563. 
 
 21. Complaint on express agreement in New York, will be sustained by evi- 
 dence of an implied. Smith v. Lippineott, N. S. vii. 570. 
 
 22. Written lease maybe modified by subsequent parol agreement on new con- 
 sideration. Flanders v. Fay, N. S. vii. 697. 
 
 23. When action is maintainable by some without joining all parties to written 
 agreement. Bailrnad Co. v. Titus, N. S. v. 184. 
 
 24. An agreement to give the refusal of certain land for thirty days in con- 
 sideration of $1 paid, is not a contract. Potts v. Whitehead, N. S. ix. 318. 
 
 25. An agreement by the Secretary of the Interior, to pay a clerk in his de- 
 partment for services rendered the government by labors abroad, is void under 
 the Act of August 23d 1842. Stansbury v. United Stages, N. S. ix. 63. 
 
 26. An agreement to share the proceeds of a public oifice in consideration of 
 aid and money to secure an election, is against public policy and void. Martin 
 V. Wade, N. S. ix. 319. 
 
 27. An agreement made in the presence of an attorney, between his client and 
 a third person, is not a privileged communication. Carr v. Weld, N. S. viii. 244. 
 
 28. An agreement to sell hop roots in the ground is not within the Statute of 
 Frauds as being an interest in real estate. Webster v. Ziel'y, N. S. viii. 441. 
 
 29. An agreement for the sale of land to be valid must be binding on all the 
 parties by whom made. Snyder v. Neefus, N. S. viii. 572. 
 
 30. In an action to recover money agreed to be paid for stock, an averment of 
 a readiness and willingness to issue and deliver.the certificates of stock is neces- 
 sary. James v. Railroad Co., O. S. vi. 718. 
 
 31. A verbal agreement, to be effectual as a waiver, variation or change in 
 the stipulations of a prior TVritten contract between the parties, must rest upon 
 some new and distinct legal consideration. Thurston ^ Hays v. Ludwig, O. S. 
 v. 606. 
 
 32. Where a contract is made by written correspondence solely, it must be 
 treated as a contract in writing. Whitmore v. South Boston Iron Co., N. S. i. 
 408. 
 
 33. Where A. accepted in writing an order to pay a claim out of the proceeds 
 of a certain note in his hands, he cannot afterwards change his liability on the 
 ground that there was a parol agreement that he was to be paid his indebtedness 
 first. Miller, Executor, v. Goldthwait, Administrator, N. S. xii. 661. 
 
 4 
 
"50 AGREEMENT— ALIEN. 
 
 34. An agreement intended to be signed and sealed by two, but only signed 
 and sealed by one, binds the one only. Railroad Co. v. Orendorff, N. S. xii 
 785. 
 
 35. Agreement to call at obligor's office for interest on bond and mortgage, 
 does not make the office the only legal place for payment. McCotter v. De Groot, 
 N. S. viii. 125. 
 
 AIDING AND ABETTING, escape of fugitive slaves, action for. Weimer v. Sloan, 
 0. S. iv. 180. 
 
 ALABAMA, The Case of the, N. S. ii. 689. 
 
 ALDEEMAN. See Justice. 
 
 ALIEN. 
 
 1. Definition of; see Ex parte Dawson, 0. S. iv. 242. 
 
 2. The next of Tcin of the testator were three brothers and sisters of the whole 
 blood, and a brother and sister of the half blood. These last, by the law of de- 
 scents of Virginia, were entitled lo half portions ; this half-brother and half-sister 
 were born in Ireland, and were never naturalized by any act of their own, but 
 their father, also an Irishman by birth, was naturalized under the law of Virginia 
 in 1787. The two children last referred to were then minors living in Ireland, 
 came to Virginia in 1792, and resided there until after 1802, when an Act of 
 Congress was passed, declaring that the children of persons duly naturalized 
 under any of the laws of the United States, or who, previous to the passage of 
 any law on that subject by the government of the United States, may have be- 
 come citizens of any one of the said states under the laws thereof, being under 
 the age of twenty-one years, at the time of their parents being so naturalized, 
 shall, if dwelling in the United States, be considered as citizens of the United 
 States. These cbildren were naturalized by this Act of Congress, and so capa- 
 ble of acquiring title to real estate by descent. Vint v. King, O. S. ii. 712. 
 
 3. By the common law, an alien signifies one born in a foreign country, and 
 it is the doctrine of the English law that natural-born subjects cannot divest them- 
 selves of the duty of allegiance to the country of their nativity. The statutes 
 giving to the children of natural-born subjects the rights of English-"born subjects, 
 though born in a foreign country, are statutes of naturalization, giving certain 
 privileges without the volition of the subject, and without the condition of resi- 
 dence. If they determine imperatively the status of the natives of other conn- 
 tries, they conflict with the docti-ine of natural allegiance and also with the rights 
 of the citizens of other states, and with the sovereignty of other governments. 
 In re Dawson, 0. S. iv. 241. , 
 
 4. Treaties made by the United States removing the disability of aliens to in- 
 herit are valid and within the intent of the Constitution of the United States. 
 The People v. Gerke, 0. S. iv. 604. 
 
 5. In the absence of any law of tbe United States governing the particular 
 case, the question whether one born out of the United States is a citizen, is to be 
 determined by the common law, as it existed at the adoption of the Federal Con- 
 stitution. ' Ludlam v. Ludlam tt al., N. S. iii. 595.' 
 
 6. At common law, the duty of allegiance and the rights of citizenship passed 
 by descent, the child following the condition of the father ; so that if a father 
 nut of tbe realm was within the allegiance of the king, his child by an alien wife 
 wa3 born a subject to the British crown. Id. 
 
 7. The statute (25 Edward III., ch. 2) upon this point is a declaratory, and 
 not an enabling, act. Id. 
 
 8. Whether a citizen is capable of renouncing his allegiance without the con- 
 sent of his government, or may when his government has not prohibited it, 
 quaere. Id. 
 
 9. But if he may, ho cannot divest himself of his citizenship until he becomes 
 the citizen of another government, and this he cannot do until he arrives at full 
 age. Id. 
 
 10. Where a citizen of the United States went to Peru at the age of eighteen 
 years, with the intention of indefinite continuance there, but took no steps to be 
 naturalized in Peru, or to indicate an intention of a permanent change of domioil, 
 his child born in Peru of an alien wife is a citizen of the United States. Id. 
 
 11. A finding as of a fact, that the father voluntarily "expatriated " himself, 
 with the intention of becoming a permanent resident of Peru, regarded as im- 
 material. Id. 
 
ALIEN. 51 
 
 12. Such a child may, it seems, be subject to a double allegiance, and upon 
 arriving at his majority may elect to retain the one and repudiate the other ; but 
 until such election he retains all the rights of citizenship in both countries, though 
 discharging its duties in but one. Lucllam v. Ludlam et al., TS. S. iii. 595. 
 
 13. An alien woman married to an alien in a foreign country and continuing 
 to reside there until her husband's death, did not become a citizen of the United 
 States by the naturalization of her husband subsequent to their marriage. Burton 
 T. Burton, N. S. iii. 425. 
 
 14. She is, therefore, not entitled to dower under the laws of the state of New 
 Tork. Id. 
 
 15. Construction of the Act of Congress, 10th Tebrnary 1855, sec. 2. Id. 
 
 16. May hold land until ofSce found in Rhode Island. Cross v. De Valle, N. 
 S. iii. 630. 
 
 17. May sue another in courts of this country on contract made abroad. 
 Roberts y. Knights, N. S. iii. 697. 
 
 18. The Act of Congress of February 10th 1855, which declares "that any 
 woman, who might lawfuUy be naturalized under the existing laws, married, or 
 who shall be married to a citizen of the United States, shall be deemed and taken 
 to be a citizen," confers the privileges of citizenship upon women married to 
 citizens of the United States, if they are of the class of persons for whose na- 
 turalization the previous Acts of Congress provide. Kdlij v. Owen et al., N. S. 
 Tiii. 444. 
 
 19. The terms " married" or " who shall be married," in the act, do not refer 
 to the time when the ceremony of marriage is celebrated, but to the state of 
 marriage. Id. 
 
 20. The citizenship of the husband, wherever it exists, confers citizenship on 
 the wife. Id. 
 
 21. Any woman being a free white person, and an alien friend, married after 
 the approval of the Act of February 10th 1855, to a man who was, at the time 
 of such marriage, a naturalized citizen of the United States, becomes, by such 
 marriage, ipso facto, herself a citizen of the United States, and capable of inherit- 
 ing real estate, although she resided in a foreign country at the time of her said 
 marriage, and has continued her actual residence there ever since. Kane v. 
 McCarthy, N. S. viii. 482. 
 
 22. And any alien woman answering the above description, and married before 
 the approval of the said act, to an alien husband, who has been subsequently 
 naturalized, becomes by his naturalization, ipso facto, herself a citizen of the 
 United States, and capable of inheriting real estate. Id. 
 
 23. It is the status of being married to — being the wife of — a citizen, which 
 makes the alien woman a citizen of the United States. Id. 
 
 24. Where an infant, a native citizen of the state of New York, and domiciled 
 in the city of New York, and having a guardian duly appointed at the place of 
 domicil, was clandestinely, and adversely to the wishes of the guardian, re- 
 moved from his power and taken to England : Held, that the guardian was justi- 
 fied in attempting to recover the custody of the ward, by invoking the aid of the 
 English courts, and that the expenses of such proceedings were a proper charge 
 on the infant's estate. In re Dawson, an Infant, 0. S. iv. 241. 
 
 25. The territories even after being organized by Congress possess none of the 
 attributes of sovereignty. They cannot therefore enact laws for the forfeiture of 
 lands of aliens. Montana v. Lee, N. S. xiii. 487. 
 
 26. The police power of the state may be exercised by precautionary measures 
 against the increase of crime or pauperism, or the spread of infectious diseases 
 from persons coming from other countries. The state may entirely exclude con- 
 victs and persons afflicted with incurable disease ; may refuse admission to pau- 
 pers, idiots, lunatics and others, who from physical causes are likely to be- 
 come a charge upon tne public until security is afforded that they will not become 
 such a charge ; and may isolate the temporarily diseased until the danger of con- 
 tagion is gone. In the matter of Ah long, N. S. xiii. 761. 
 
 1 27. The extent of the power of the state to exclude a foreigner from its terri- 
 tory is limited by the right of self-defence. Whatever outside of the legitimate 
 exercise of this right affects the intercourse of foreigners with our people, their 
 immigration to this country and residence therein, is exclusively within the juris- 
 diction of the general government, and is not subject to state control or inter- 
 ference. Id. 
 
52 ALIEN— ALTERATION. 
 
 28. The Clh Ai-ticle of the treaty between the United States and China, 
 adopted on the 28th of July 18G8, provideg that Chinese subjects visiting or 
 residing in the United States, shall enjoy the same privileges, immunities and 
 exemptions in respect to travel or residence as may there be enjoyed by citizens 
 or subjects of the most favored nation, and as the general government has not 
 seen fit to attach any limitation to the ingress into the United States of subjects 
 of those rations, none can be applied to the subjects of China. In the matter of 
 Ah Fong, N. S. xiii. 761. 
 
 29. The Fourteenth Amendment to the Constitntion declares that no state shall 
 deprive anii person of life, liberty or property, without due process of law; nor 
 deny to anij person the equal protection of the laws : Held, that this equality of 
 protection implies not only equal accessibility to the courts for the prevention or 
 redress of wrongs, and the enforcement of rights, but equal exemption with 
 others of the same class, from all charges and burdens of every kind. Within 
 these limits the power of the state exists, as it did previously to the adoption of 
 the amendment, over all matters of internal police. Id. 
 
 30. On the .31st of May 1870, Congress passed an act declaring that " no tax 
 or charge shall be imposed or enforced by any state upon any person immigrating 
 thereto from a foreign country Avhich is not equally imposed or enforced upon 
 every person immigrating to such state from any other foreign country, and any 
 law of any state in conflict with this provision is hereby declared null anc^void :" 
 Held, 1. That the term charge, as here used, means any onerous condition, and 
 includes a condition which makes the right of an immigrant, arriving in the 
 ports of the st$ite, to land within the state depend upon the execution of a bond 
 by a third party, not under his control, and whom he cannot constrain by any 
 legal proceedings ; and 2. That the statute of California, which prohibits foreign 
 immigrants of certain classes, arriving in the state of California by vessel, from 
 landing until a bond shall have been given by the master, owner or consignee of 
 the vessel that they will not become a public charge, and imposes no condition 
 upon immigrants of the same class entering the state in any other way, is in con- 
 flict with the Act of Congress. Id. 
 
 ALIENIGENiE OJ? THE UNITED STATES, discussed. 0. S. li. 193. 
 
 ALIMONY. 
 
 1. A husband leaving his wife at a. tavern without money, and without noti- 
 fying her whether he had made any provision for her support there or elsewhere ; 
 such abandonment and separation will entitle her to a decree for support and 
 maintenance. Boyce v. Boyce, N. S. xii. 465. 
 
 2. Where there is property it is the duty of the court to make a reasonable 
 provision for the care of the children. Bmh v. Bush, N. S. xii. 597. 
 
 3. Where the estate is the result of the accumulations of the husband and wife, 
 a fourth is not an unreasonable share for the wife. Id. 
 
 4. Alimony has no existence at common law as a separate and independent 
 right. Bowman v. Worthington, N. S. vi. 621. 
 
 5. The courts of Arkansas have jurisdiction of divorce and alimony. Id. 
 
 ALLEY. 
 
 1. An alley fenced in and owned by the contiguous lot-owners is extinguished. 
 Robinson v. Myers, N. S. xi. 196. 
 
 2. Where the owners of land abutting on an alley have permitted its use by 
 the public a dedication will be presumed, and the city will not be restrained from 
 improving it. City of Evansville v. Evans, N. S. xii. 533. 
 
 ALLUVION. 
 
 1. Upon what the right to, depends. Saulet v. Shepherd, vi. 630. 
 
 2. The line of low water is the boundary line, and the jurisdiction of the city 
 follows the shore as it advances into the river. Luke v. Brooklyn, N. S. iv. 444. 
 
 3. Conveyance of land bounded by a street on the water's edge — accretions to 
 the shore— dedication to public use. Banks v. Oyden, N. S. iv. 509. 
 
 ALTERATION. 
 
 1. Alteration of bill of exchange, without consent of acceptor, discharges 
 him. Burchpdl v. Moore, 0. S. iii. 123. 
 
 2. Where the holder of a bond or note makes an alteration in its date, he 
 avoids the instrument, even though the alteration was in truth the correction of a 
 mistake, and was so intended. Miller v. Gilleland, 0, S. i. 672. 
 
ALTERATION— AMENDMENT. 53 
 
 3. The original action here was upon a note under seal. The plaintiff alleged 
 that the note was dated as of a wrong year, and altered it for the purpose of mak- 
 ing it conform to the truth. On the trial it was objected, that the note was 
 avoided by the alteration ; and thereupon the plaintiff proved that the alteration 
 was honestly made in mere correction of a mistake, and under the instruction of 
 the court (Watts, P. J.), that this was sufficient answer to the objection, the 
 plaintiff had a verdict, and the judgment was entered thereon. Aiiller v. G'dle- 
 land (LowEiE and Woodwaed, JJ., dissenting), 0. S. i. 672. 
 
 4. Fraudulent addition by grantee of name of grantor's wife will uot render 
 the deed invalid. Kendall v. Kendall, N. S. vi. 382. 
 
 5. English and American cases relating to sealed instruments executed in 
 blank, or altered after delivery : see Chauncey v. Arnold, O. S. ix. 608. 
 
 6. Alteration of plan of building and its enlargement wliile it is in the course 
 of construction, the liens of mechanics and material-men subsequent to such 
 change, relate only to the commencement of the alteration on the ground, and 
 
 , are subject to all liens which theu had fastened on the land. Smedley v. Conaway, 
 O. S. V. 442. 
 
 AMBASSADOR. 
 
 1. Privileges of. Magdalina Navigation Co. v. Martin, 0. S. viii. 250. 
 
 2. A councillor of legation of a foreign sovereign, who has the charge of the 
 executive of the said legation, subject to the directions of the minister plenipo- 
 tentiary, and who acts as charge d'affaires in the absence of such minister, is "a 
 public minister of a foreign prince" within the meaning of the 7 Ann. c. 12, and 
 entitled as such to the privileges of an ambassador. Taylor v. Best, 0. S. 
 ii. .550. 
 
 3. An ambassador who voluntarily appears to an action brought against him 
 and other defendants in this country, as joint contractors, and who thus submits 
 to the jurisdiction of the court, is not entitled to have the proceedings set aside, 
 or the action stayed against him on the ground of his being privileged, as an 
 ambassador, from suit, if no step has been taken by the plaintiff in the action to 
 interfere with his person or property. Id. 
 
 4. Quaere, if an ambassador can in inpitum be sued in this country when pro- 
 cess is not directed against his person or such goods of his as are connected with 
 his comfort and dignity as ambassador ? Id. 
 
 5. Semble, where the privilege of an ambassador attaches, it is not lost by 
 the ambassador being engaged in trade. Id. 
 
 AMENDMENT. 
 
 1. In allowing amendments all legal defences, including those styled uncon- 
 scionable, stand on an equal footing. Sheldon v. Adams, N. S. iii. 503. 
 
 2. An amendment will not be allowed that would cut off the defence of the 
 statute of limitations. Id, 
 
 3. Nor an amendment by which a note liable to be assessed only for losses in 
 one class of hazards, is made liable for all losses. Id. 
 
 4. New counts relate to the commencement of the suit. Dana v. McClure, N. 
 S. vi. 564. 
 
 5. Authority of county court to allow new counts. Id. 
 
 6. New count must be for the same cause of action. Id. 
 
 7. When a new count, declaring specially on a witnessed note, not new cause 
 of action. Id. 
 
 8. Bar by the statute is a reason for allowing amendment, not for its refusal. 
 Id. 
 
 9. Statute operates only on the remedy ; it does not affect the indebtedness, 
 forming cause of action. Id. 
 
 1,0. The allowfince of an amendment to a petition, increasing the amount of 
 damafies claimed, was held not erroneous. McDonald et ux. v. The Chicago ^ 
 N. W". TtaUroad Co., N. S. ix. 10. 
 
 11. A court which has jurisdiction of the parties, may amend the ad damnum 
 so as to bring it within the jurisdiction as to amount. Merrill v. Curtis, N. S. 
 X. 124. 
 
 12. The court will amend or conform a complaint to the facts duly proved, 
 after judgment. Fullerton v. Dalton, N. S. x. 343. 
 
 13. Correcting a mistake in the name of a party by amending, is no ground 
 for reversal. Dewy v. McLain, N. S. x. 471. 
 
54 AMENDMENT. 
 
 14. An amendment, to secure an advantage nnjnstly obtained, will not be 
 tolerated. Ihreinan v. Scott, N. S. xii. 52. 
 
 15. In the furtherance of justice the law looks leniently on mistakes, if hon- 
 estly made. Id. 
 
 16. A summons irregularly served cannot be amended after judgment, other- 
 wise where there is only a defect in the return. Id. 
 
 17. A declaration for goods sold and delivered, may be amended by a court 
 for goods bargained and sold without changing the form of action.. Jenness et al. 
 T. Wendell, N. S. xii. 57. ~ , 
 
 18. An amendment of process will be presumed to have been made on the last 
 day of term. Burns v. National Bank of St. Albans, N. S. xii. 398. 
 
 19. To a writ which changes the names of the parties to the action^ not 
 allowable. Lewis v. Locke, N. S. viii. 501. 
 
 20. On sustaining a demurrer, bill should not be dismissed without allowing 
 opportunity to amend. Little Vi Snedicor, N. S. xiv. 641. 
 
 21. Where the original declaration was in covenant for rent on an indenture be- 
 tween S. and W., setting forth the indenture as the ground of action, and averring 
 an assignment of it to the plaintiff with notice, and assigning a breach — during 
 the pendency of the action, the plaintiff offered a new count as an amendment, 
 setting forth more especially the manner of the assignment to the plaintiff, show- 
 ing how he became assignee, not of the lease merely, but of the reversionary 
 interest; which amendment being allowed, it was held, that this was not erro- 
 neous as changing the form or ground of the action. Baldwin v. Walker, 0. S. 
 i. 565. 
 
 22. Where a judgment on bond and warrant is by mistake entered for less 
 than the sum specified in the latter, it may be amended according thereto, on 
 application of the plaintiff, at any time, even after execution Issued and the 
 amount collected, saving, however, the rights of third persons. Smith v. jSood, 
 0. S. iv. 439. 
 
 23. Under the Practice Act of California a complaint cannot be amended in 
 the Supreme Court so as to make it correspond with the verdict. The District 
 Court, in a proper case, before judgment, may direct the complaint to be so 
 amended. Hooper v. Wells, N. S. v. 17. 
 
 24. Changing action from one ex delicto to one ex contractu is not allowable. 
 Whitcomb v. Hungerford, N. S. iv. 183. 
 
 25. A variance between the complaint and proof in such case is not amend- 
 able. Id. ^ 
 
 26. A summons issued from the Marine Court containing only the given name 
 of the plaintiff, may be amended by the clerk of that court, in the presence and 
 under the authority thereof, by inserting the surname, where the defendant is not 
 prejudiced thereby. Stanton v. Letand, 0. S. vii. 264. 
 
 27. A tenant may amend his disclaimer at anytime before judgment. Wells 
 V. Manufacturing Co., N. S. xi. 56. 
 
 28. In action for tort, after failure of proof that the taking was wrongful, 
 plaintiff should be nonsuited, he cannot amend by changing the action to 
 assumpsit. Ransom v. Wetmore, N. S. ii. 765. 
 
 29. Additional counts to a declaration in trespass g. c.f. without alleging the 
 breaking of a close, complained of the taking of certain logs : Held, that the 
 amendment did not change the original cause of action. Knapp v. Hartung, N. 
 S. xiii. 451. 
 
 30. Plaintiff may add count different from declaration, if he does not change 
 cause of action. Id. 
 
 31. This applies to actions ex delicto, as well as ex contractu. Id. 
 
 32. The name of an additional plaintiff may be added in ejectment, after suit 
 brought. Kaul y. Lawrence, N. S. xiii. 521. * 
 
 33. An amendment should not be allowed so as to deprive the opposite party 
 of any right. Id. 
 
 34. A party cannot introduce a new cause of action by amendment. Id. 
 
 35. It is the settled rule in Wisconsin that a party cannot by amendment change 
 his cause of action nor the nature of his defence. Supervisors of Kewaunee Co. 
 t. Decker, N. S. xiii. 646. 
 
 36. Amendments to be passed on by the courts, which could not affect the ver- 
 dict, may be made after verdict, and then judgment entered. Janvriny. Foqq, 
 N. S. xi. 334. 
 
AMENDMENT— ANTECEDENT DEBT. 55 
 
 37. If amendments may be made in the cauie after rerdict, they may also be 
 in the testimony. Janvrin v. Fogy, N. S. xi. 334. 
 
 38. A variance between complaint and proof is immaterial after judgment, and 
 may be amended. Smith, v. Holland, N. S. xi. 590. 
 
 39. ^Vhere no mistake was alleged in making a person co-defendant, it was 
 not error in the court to refuse to allow an amendment by striking off his name. 
 Locke et al. v. Daugherty et al., N. S. ii. 633. 
 
 40. Amendment after demurrer where there is laches. Bank v. Stevenson, N. 
 S. iii. 697. 
 
 41. Declaration containing common money counts cannot be amended by add- 
 ing special counts upon a lease for damages for not carrying on farm properly. 
 O'Burt T. Kinne, N. S. vii. 250. 
 
 42. What is matter of discretion in amendment and not appealable. Sai/re 
 T. Fra:er, N. S. vi. 436. 
 
 43. Amendments of pleadings may be in three ways ; 1st, by interlineation ; 
 2d, by writing on separate paper ; 3d, by rewriting the original pleading. Fiiz- 
 patrickv. Gebhart, N. S, x. 541. 
 
 44. As to where a complainant in chancery amends his bill after answer filed, 
 see 2fezeik r. McGraw, N. S. x. 790. 
 
 45. Where plaintiff should have leave to amend rests in the sound discretion 
 of the court. Beaumont v, Herrick, N. S. xiv. 195. 
 
 46. In an action on an award it is discretionary with the court to allow an 
 amendment to the answer of the defendant. McCord v. McSpaden, N, S. xiii. 
 704. 
 
 47. As to where an issue of fact not raised by the pleadings was distinctly 
 submitted to the jury without objection, see McCord v. HcSpaden, N. S. xiii. 
 705. 
 
 48. Amendment by increasing the damage laid after verdict. Miller v. Weeks, 
 0. S. ii. 119. 
 
 AMERICAN VESSEL. See Jukisdiction. 
 
 ANCESTOR. 
 
 At common law the heir was liable on the covenants of his ancestor. Sail v. 
 Martin, N. S. vi. 757. 
 
 ANCIENT LAW. See Menu. 
 
 ANCIENT LIGHTS. Subject discussed. N. S. ii. 522. 
 
 ANIMAL. 
 
 1. The owner is liable for injury done by an animal which is known to be 
 fierce or dangerous, though it does not belong to a class ferce naturm. Oakes v. 
 
 ' Spavlding, N. S. vii. 551. 
 
 2. A bequest for the founding and establishing an animal sanitary institution 
 within a mile of either Westminster, Southwark or Dublin : Held, to be a good 
 charitable bequest. University of London v. Yarrow, 0. S. vi. 169. 
 
 3. Horses which have escaped from their owner's enclosure against his will, 
 and which he has once gone in search of, cannot be impounded. Kinder v. Gil- 
 lespie, N. S. xiv. 53. 
 
 4. Liability of owner for injuries committed by them ; subject discussed. 0. 
 S. vii. 655. 
 
 ANIMAL FERiE NATURiE. See Oakes v. Spaulding, N. S. vii. 551. 
 
 ANNUITY. See Will. 
 
 ANSWER. See Equity. 
 
 1 . An appeal perfected after the levy of a ^. /a. or a decree, but before sale, is 
 a supersedeas. Chillasv. Brett, 0. S. iii. 116. 
 
 2. Answer — new matter in, by way of avoidance — is evidence for defendant. 
 Tobin V. Walkinshaw, 0. S. v. 106. 
 
 ANTECEDENT DEBT. 
 
 1. Though the plaintiffs took the note as collateral security for an antecedent 
 debt, they are, nevertheless, to be considered primd facie, though not conclusively, 
 as holders for value. Trustees of Iowa College v. Hill, N. S. i. 745. 
 
56 ANTECEDENT DEBT— APPKENTICE. 
 
 2. Antecedent debt, where constitutes a purchaser for ralne. See Le Breton v. 
 Peii-ce, N. S. i. 35. 
 
 ANTHON, JOHN, remarks in memoriam. N. S. ii. 500. 
 
 APPEAL. 
 
 1. What is matter of discretion in amendment and not appealable. Sayre v. 
 Frazer, N. S. vi. 436. 
 
 2. Where bail is improperly entered, appellant should hare reasonable time to 
 enter pi'oper bail. Short y. Rudolph, 0. S. ii. 119. 
 
 3. Supreme Court of United States cannot entertain appeals from the Court of 
 Claims. Act of Congress March 3d 1863, ch. 92, providing for such appeals, 
 is unconstitutional. Gordon v. The United States, N. S. v. 111. 
 
 4. Withdrawal of appeal allowed, upon settlement made in good faith with 
 appellant, in ignorance of the interests of others therein. Lake's Appeal, N. S. 
 V. 62. 
 
 5. In probate cases, in Michigan, to the Supreme Court. Jackson t. Eosmer, 
 N. S. V. 249. 
 
 6. It is the duty of an appellate judge to leave undisturbed a decision where 
 he is not thoroughly persuaded there has been error. Attorney General v. The 
 Corporation. 0. S. v, 506. 
 
 7. In a proper case a cause may be heard, on error or appeal, in a different 
 district from that in which it originated. Hazen v. Commonwealth, O. S. ii. 654. 
 
 8. The .Pennsylvania Plank Koad Act of April 7th 1849, provides for the 
 assessment of damages under the act by freeholders, upon which assessment 
 judgment is to be entered before a justice of the peace, with an appeal as in 
 ordinary cases ; a plaintiff succeeding in an appeal is entitled to costs. Beardsley 
 V. The Honesdale Plank Road Co., 0. S. ii. 660. 
 
 APPEARANCE. 
 
 Application by defendant for order for time to answer, amounts to an appear- 
 ance. Ayresy. Railroad Co., N. S. vi. 773. 
 
 APPLICATION OE PAYMENTS— the subject discussed. 0. S. iii; 705 ; N. S 
 T. 193, 257. 
 
 1. The rule for the application of payments is that they are to be applied to 
 the earliest items in the account. Coleman v. Lanning, N. S. xii. 665. 
 
 2. Defendant has no right to appropriate plaintiff's work as a payment upon a 
 note held against him. Carr v. McDonald, N. S. vi. 565. 
 
 3. A debtor may direct to which claim his payment shall be applied ; if he 
 makes no application the creditor may apply it to anv claim due. Bean v. 
 Brown, N. S. xiv. 702. 
 
 4. Where payments are made generally they may be applied by the creditor to 
 such items of the account as are not secured. Murphy v. Webber, N, S. xiii. 256. 
 
 5. Where a payment has been applied to a particular debt by consent of the 
 parties, it cannot afterwards be charged so as to interfere with intervening rights 
 of other creditors. Chancellor v. Schoit, 0. S. ii. 509. 
 
 APPOINTMENT. See Assignment ; Dowek; Will. 
 
 1. Where A. made to B. a deed of gift embracing both personalty and realtv, 
 in which deed was a special power in the nature of an appointment, which B 
 executed by his last will according to the terms of the power, held that wife was 
 not entitled to dower in the realty. hompson v. Vance, 0. S. vii. 222. 
 
 2. Such transfer to a mortgagee is merely an appointment to re"ceive any 
 money which may become due from the insurers by reason of loss sustained by 
 the mortgagor. Grosvenor v. Atlantic Mutual Insurance Co., 0. S. vii. 118 
 
 3. An appointment by a separate paper signed by the testator^ but not' duly 
 attested, declaring the appropriation and naming the beneficiary, does not create 
 a valid bequest in favor of the person thus declared and appointed by the unat- 
 tested instrument. Thayer v, Wellington, N. S. iv. 87. 
 
 APPRENTICE. 
 
 1. A negro apprentice cannot recover damages from his master for enlistinff 
 him as a substitute for his son who had been drafted. Gent v Cole N s* -r;;; 
 256. ■ ' "• 
 
 2. The assent of the justices as to the binding of a child is a judicial act in 
 England, and must show on its face that the justices were acting within the lo'cal 
 
APPRENTICE— ARBITRATIOxV. 57 
 
 limits of their jurisdiction, Oocrseers of Staverton v. Overseers of Ashhurton O 
 S. iii. 508. -^ ' 
 
 3. Tlio recital of the age of an apprentice, in un indenture of apprenticeship, 
 is on\y primd facie evidence, and may be rebutted. Drew v. Peekwell, 0, S. iii. 
 
 m. 
 
 i. After his arrival at the age of twenty-one he may elect to abandon the con- 
 tract. Td. 
 
 5. Indenture valid where executed will be enforced in another state. Petriev. 
 Voorhees, N. S. vii. 696. 
 
 6. Covenant to support must be limited to time of service, and if right is set- 
 tled at law ; in case where master dies, equity will order assets set aside to dis- 
 charge the duty. Id. 
 
 7. Provision in will for support may be taken as discharge of the obligation. Tel. 
 , 8. The clause in the constitution, and tlie provisions in the Acts of Congress 
 
 of 1793 and 1850, providing for the rendition of persons held to labor, include 
 apprentices Boaier v. Cumntines, 0. S. i. 654. 
 
 APPROPRIATION OF PAYMENTS-the subject discussed; 0. S. iii. 705. N. 
 S. V. 193, 257. 
 
 Appropriation of payments by debtor. See Payments. 
 
 APPROPRIATIONS, construction of; proviso in statute directing how same shall 
 be expended, loardof Education v. Clianei/, 0. S. iv. 631. 
 
 ARBITRATION. 
 
 I. Of the Agreement to se^ek, and herein of "what Actions may be re- 
 ferred. 
 
 1. Authority of agent to submit to arbitration, damage to land of his princi- 
 pal's wife. Smith v. Sweeney, N. S. vi. 379. 
 
 2. Partner has no authority to submit partnership matter to arbitration so as 
 to bind the firm. St. Martin v. Thrasher, N. S. vii. 764. 
 
 3. The legislature has no right to compel submission to an arbitration without 
 consent of party. People v. Saws, N. S. ii. 378. 
 
 4. An officer cannot submit a matter of public interest to arbitration. Mann 
 V. Richardson, N. S. xiv. 578. 
 
 5. In an action of trespass gu. cl.fr. then pending, it was agreed by the par- 
 ties in open court to refer the question, which was a dispute as to boundary lines, 
 to an umpire, who made an award. Held, good at common law and conclusive 
 of the question. Carr v. Walford, 0. S. ii. 181. 
 
 6. Courts of law cannot be ousted of their jurisdiction by mere agreement of 
 the parties. Horton v. Soyer, 0. S. viii. 250. 
 
 7. Presence of partner, who understands English imperfectly, at conversation 
 resulting in submission of partnership matter of arbitration, not conclusive of 
 his assent. St. Martin v. Thrasher, N. S. vii. 764. • 
 
 8. Clause that no action shall be maintained without previous reference to ar- 
 bitration void. Stephenson v. Ins. Co., N. S. vii. 444. 
 
 9. An agreement under seal to submit to arbitration and a guarantee by a third 
 person not under seal that one of the parties shall abide tlie award, cannot be 
 sued upon in the same action. Wallis v. Carpenter, N. S. vii. 119. 
 
 10. A submission to arbitration is a contract implying an agreement of the 
 parties to abide the result. Whitcher v. Whitch'ir, N. S. xi. 50. 
 
 11. Informal submission. Mmin v. Reed, N. S. ii. 254. 
 
 12. The claim need not be annexed to the submission. Dodge v. Hull, N. S. 
 xi. 590. 
 
 13. A submission, partly in writing and partly by parol, and an award made 
 in pursuance of all said terms, will be good. Sleere v. Tenney, N. S. xi. 659. 
 
 14. A submission to arbitration without an award will not operate as a dis- 
 continuance. Dinsmore v. Hanson, N. S. ix. 508. 
 
 15. A naked power to submit to arbitration is revocable. Paist v. Caldwell, 
 N. S. xiv. 191. 
 
 16. Where two parties to a contract agree to refer any matter of dispute that 
 may arise to a third party, whose decision is to be final, and they waive their 
 right of action at law, they are bound by the decision of such umpire, without 
 regard to mistake or fraud on his part. Leech v. Caldwell, N. S. v. 280. 
 
 17. The remedy for fraud is an action against the guilty agent, not an action 
 on the contract. Id. 
 
58 AEBITRATION. 
 
 18. The furthest that the rule has been relaxed in Pennsylvania is to allow 
 cue party to come into a court of law when the other has refused to join in the 
 choice of arbitrators, or has prevented the chosen umpire from acting as such. 
 Leech V. Caldwell, N. S. v. 280. 
 
 19. An Aci of Congress referring a claim to an officer of one of the execu- 
 tive departments to examine and adjust, is not such an arbitrament and award in 
 the technical sense as to bind the parties like a submission. Gordon v. United 
 Slates, N. S. viii. 244. 
 
 20. Hence a subsequent act repealing the one making the reference, impairs 
 no right and is valid. Id. 
 
 21. A mere submission to arbitration will not be necessarily a discontinuance 
 ,' of a pending suit. Lary v. Goodeno, N. S. viii. .'ies. 
 
 22. A submission to arbitration in a pending suit will not be invalid for want 
 of the affidavit directed by the 2d section of the Act of June 16th 1836 of Penn- 
 sylvania. Shinier v. Keavi/, N. S. xiv. 115. 
 
 23. When the subhiission is in a pending action it need not be stipulated that 
 it shall be a rule of court. Jd. 
 
 n. Op the Revocation of the Reference. 
 
 24. Where the agreement is in the nature of a contract it is irrevocable.. 
 Paist V. Caldwell, N. S. xiv. 191. 
 
 25. Where parties submit a matter in dispute to arbitration without any action, 
 or any agreement to make the matter a rule of court, and stipulate that each 
 party shall have twenty days to appeal flora the award, this is equivalent to a 
 reservation of time to elect to avoid the award, and claim a regular common-law 
 trial. Corporation of Erie v. Tract/, 0. S. i. 119. 
 
 26. After an agreement for submission has been executed neither party can 
 revoke it. Shisler v. Keavy, N. S. xiv. 115. But see Paist v. Caldwell, N. S. 
 xiv. 191. 
 
 III. Op the Referees. 
 
 27. Query, whether an action will lie against an arbitrator for anything done 
 by him while acting strictly in that capacity. Jenkins v. Bentham, 0. S. iii. 638. 
 
 28. The power of arbitrators is exhausted when they have once finally deter- 
 mined matters before them. Bat/ne v. Morris, N. S. iv. 53. 
 
 29. Arbitrators, unless restricted, can decide questions of law as well as of 
 fact. Sanborn v. Murphy, N. S. xi. 659. 
 
 30. The delivery by the arbitrators of a statement of their conclusions does 
 not terminate their powers. They may still make a final award. Dodge v. Hull, 
 N. S. xi. 590. 
 
 31. The plaintiffs were selected as arbitrators between them by T. and S., and 
 in discharging the duties of their appointment incurred certain expenses for the 
 hire of a clerk. In their award the arbitrators awarded that T. should pay them 
 a certain sum for their fees and expenses. In assumpsit against T. to recover 
 the sum so awarded, brought by the arbitrators jointly, in which the declara- 
 tion contained a special count on the award and the common counts for money 
 paid and work and labor done, it was held that the plaintiffs were entitled to re- 
 cover on the common counts, and that the fact that another was jointly liable 
 with the defendant was no defence under the general issue, but could be taken 
 advantage of only by plea in abatement. Whether a recovery could be had on 
 the special count, quaere 1 Holcomb v. Tiffany, N. S. xi. 748. 
 
 32. Interest to disqualify arbitrators. Leominster v. Fitchburg Railroad Co., 
 N. S. iii. 505. 
 
 IV. Op the Award, and herein op the Power of the Court over the 
 Award and the Proceedings to set it aside. 
 
 33. It is no ground for setting aside an award that the unsuccessful party suf- 
 fered a surprise, as an arbitrator would have power to postpone the proceedings 
 upon any reasonable , application for that purpose. Solomon v. Solomon, 0. S. 
 vii. 566. 
 
 34. If a contract provides for the determination of the contractor's claims and 
 liabilities by the judgment of a particular person, everything depends on his de- 
 cision, and until he has spoken, no right arises which can be enforced either at 
 law or in equity. Scott'v. Liverpool Corporation, 0. S. vii. 566. 
 
 35. Supreme Court will not revise proceedings of a referee except for mistake 
 of law evident on the face of the award. Smith v. Sprague, N. S. vii. 571. 
 
ARBITRATION. 59 
 
 36. If the reference provides that the award shall be made in accordance with 
 legal principles, and ihe referees mistake the law, the award will be set aside. 
 Sanborn v. JIuj-pht/, N, S. xi. 659. 
 
 37. An award will be set aside when there has been such an error as regards 
 facts or law as prevented a free and fair exercise of judgment. Id. 
 
 38. The court cannot rectify a mistake of fact of the referees where the agree- 
 ment provides the award shall be final. Skisler v. Keavy, IS. S. xiv. 115. 
 
 39. The courts in Pennsylvania have chancery powers to relieve against judg- 
 ments on awards of arbitrators, notwithstanding the statutory remedies in cases 
 of compulsory arbitration. Cochran v. Eldridjje, N. S. v. 162. 
 
 40. A court of equity has jurisdiction over awards, but will not exercise it in 
 case of awards which by agreement are made rules of court. West Jersey Rail- 
 road Co. V. Thomas, N. S. x. 343. 
 
 41. Ko court will review and correct an award. Id. 
 
 42. If the arbitrators proceed without the knowledge of either party, or decide 
 without any evidence, it is such misconduct as will set aside the award. Id. 
 
 43. The giving of a note for the amount of an award is a waiver of irregu- 
 larities in the proceedings. ilUler v. Brumhaugh, N, S. x. 403. 
 
 44. An award of arbitrators as soon as filed has the form and substance of a 
 judgment, and continues so until reversed. Wilkinson's Appeal, N. S. x. 538. 
 
 45. An award may be good in part and bad in part ; but if that which is void 
 is so connected with the rest as to affect the justice of the case, the whole is void. 
 Whitcher T. Whitcher, N. S. xi. 50. 
 
 46. Action lies immediately on refusal of a party to perform an essential part 
 of an award, though the time for performance of other parts of the award has 
 not yet arrived. Bayne v. Morris, N. S. iv. 53. 
 
 47. The burden is upon the party objecting to a report of referees to establish 
 the facts upon which he relies. Eawson v. Hall, N. S. ix. 191. 
 
 48. An award may be recommitted to the referee for the correction of a 
 clerical error, and judgment entered on it when corrected., Yeaton v. Brown, 
 N. S. xii. 529. 
 
 49. An award will not be set aside for slight irregularities, in the absence of 
 fraud, Plummer v. Sanders, N. S. xiv. 453. 
 
 50. Nor at the instance of a party in whose interest any misconduct has hap- 
 pened. Id. 
 
 51. An oral award by referees, under an oral submission, is competent 
 evidence upon a question of disputed boundary between the parties. Byam v. 
 Bobbins, N. S. iii. 120. 
 
 52. The legal presumption, unless the contrary appears, is that arbitrators decide 
 all matters which are submitted to them and only those. Sperry v. Bicker, N. S. i. 
 691. 
 
 53. An award covers everything meant to be submitted to the arbitration, and 
 is the same in this respect as a judgment. Lowensteinv. Mcintosh, N. S. ii. 247. 
 
 54. Where an award is to be made by more than one arbitrator, it must be 
 the act of all, executed in the presence of each other ; therefore, an award in such 
 case which purports to be signed and published by the arbitrators at different 
 places is invalid. Wade v. Vowling, O. S. iii. 121. 
 
 55. Award of arbitrators does not require a stamp. Adley v. Gray, N. S. 
 V. 255. 
 
 56. An award that shows on its face that but two out of three arbitrators 
 heard and deliberated cannot be sustained. Bartotett v. Dixon, N. S. xiii. 389. 
 
 57. It need not appear that ail the referees heard and deliberated ; the pre- 
 sumption is that when not made by all that the minority refused to join. Id. 
 
 58*. All matters in difference between the partners were referred to a barrister. 
 A cross-claim was urged on the part of the defendant before the arbitrator ; but 
 nothing was said in respect of the cross-claim : Held, that the award was never- 
 theless final, for that it must be Intended from the silence of the arbitrator upon 
 the subject that he had negatived the cross-claim. Harrison v. Creswick, 0. S. ii. 
 e37. 
 
 59. Where evidence was improperly conveyed to an arbitrator by one party in , 
 the absence of the other party, which the arbitrator refused to receive, and stated 
 that he should not suffer it to have any influence on his mind, and afterwards 
 made his award in favor of the party by whom such evidence was conveyedi 
 
60 ARBITRATION— AEREST. 
 
 Held, that the award was good, as being made independent of the improper infor- 
 mation. Stavimers v. Towkin's, 0. S. 1. 306. 
 
 60. A dispute having arisen as to the result of a horse-race, the stewards 
 (who, by the rules bf the course, were to be the arbiters of all disputes) decided 
 against a horse on which one of them had made a bet, it was held, the decision 
 of the steward was not invalid on the ground of one of them being an interested 
 arbitrator. Ellis v. Hopper, 0. S. vii. 504. 
 
 61. Arbitrators under statute cannot award the transfer of specific property. 
 Brown v. Evans, N. S. iii. 373. 
 
 62. An award which provides for the payment of an amount, after deducting 
 sums not fixed by the award, is invalid. Fletcher v. Webster, N. S. iii. 62. 
 
 63. On claim to realty is void in New York. Wiles v. Peck, N. S. iii. 568. 
 
 64. One article of an award being complete and independent, may be enforced 
 by itself. Lamphire v. Cowan, N. S. vii. 185. 
 
 65. It is a settled rule of law and equity that every reasonable intendment 
 shall be made to uphold an award. Sanborn v. Murphy, N. g. xi. 659. 
 
 66. It is not error to permit the defendant to state the differences between 
 himself and the plaintiff', for the purpose of showing that the arbitrators acted on 
 matters not submitted to them. McCord v. McSpaden, N. S. xiii. 704. 
 
 67. The statement of any /art bearing upon the question of whether arbitrators 
 were guilty of any misconduct, is allowable in an action on an award. Id. 
 
 68. A debt created by award is not founded on any lending or contract, and is 
 therefore not within the statute of limitations. Moore v. Green Street RaHway 
 Co., N. S. ix. 225. 
 
 69. May be final betweien the parties, though it affects third parties who are 
 not bound by it. Lamphire v. Cowan, N. S. vii. 185. 
 
 70. Award of distinct acts to be done by each party may be separately enforced. 
 Title may pass by the award without further act of parties. Girdler v. Carter, 
 N. S. vii. 250. 
 
 71. Presumption in favor of award. Leominster v. Railroad Co.,N. S. iii. 505. 
 V. Op the Remedy upon an Award. 
 
 72. A common count is not vitiated bv allegation of a lien claim. Dodge v. 
 Sutl, N. S. xi. 590. 
 
 73. Assumpsit is the proper action to recover damages for non-performsince of 
 award. Whilcher v. Whitcher, N. S. xi. 50; and see ante, pi. 31. 
 
 74. Non a/-sumpsit puts in issue every material averment. Id, 
 
 75. In an action on an award it is discretionary with the court to allow an 
 amendment to the answer of the defendant. McCord v. McSpaden, N. S. xii. 
 704. 
 
 ARKANSAS. 
 
 New constitution of, does not protect judgment by court under rebel state 
 governmeut. Fi/kins v. Hawkins, N. S. v. 161. 
 
 ARMY. 
 
 1. The official character of persons acting as mustering officers is primd facie 
 to be assumed. Township v. Herrold, N. S. viii. 633. 
 
 2. Enlistment and desertion may be proved otherwise than by record. Custom 
 of substitute brokers — town quota. Lebanon v. Heath, N. S. vii. 315. 
 
 3.-Tlie authority to arrest a person in the military service of the government 
 as a deserter does not authorize the seizing and carrying away the px'ivate pro- 
 perty of the person arrested. Clark v. Cumins, N. S. ix. 124. 
 
 ARREST. 
 
 1 . An officer ordered to arrest a debtor and take him forthwith before -a justice 
 is not justified in confining him in jail. Hynes v. Jungrem, N. S. xi. 262. 
 
 2. Warrant of arrest cannot be issued under the Pennsylvania Act of 12th 
 July 1842, for fraud of debtor, pending levy under fi.fa. and attachment of 
 defendant's effects in hands of garnishee. Commonwealth v. O'Hara, N. S. vi. 
 765. 
 
 J 3. The Bankruptcy Act suspends all proceedings for the abolishment of im- 
 
 prisonment for debt, and the punishment of fraudulent debtors where the latter 
 act operates on the same subject-matter, and upon the same persons as the former. 
 Jd. 
 
ARREST— ASSAULT AND BATTERY. 61 
 
 4. Where a bankrupt is held under p.rrest upon state process in an action of 
 tort in the nature of deceit, see hi re Devoe, N. S. vii. B90. 
 
 5. An offlcer is not bound to call for aid in the service of mesne process, and 
 is not liable for an escape that might have been prevented by his calling for aid. 
 
 Whltehmd v, Keijes, N. S, i. 471. 
 
 6. An officer is bound to use all reasonable and proper personal exertions to 
 secure n person for whose arrest he has a writ ; and if, in the opinion of the 
 jury, he has not done so, he may be held liable for an escape, although he used 
 nil such exertions as he deemed necessary at the time. Id. 
 
 7. An officer effects an arrest by laying his hand upon a person whom he has 
 authority to arrest, for the purpose of arresting him, although he may not succeed 
 in stopping or holding him. Id, 
 
 8. The Act of Congress of 1850 relative to recapture of fugitive slaves autho- 
 rizes an arrest either by the owner or his agent, with or without warrant ; but 
 when made by an agent he must he authorized by a written power of attorney, 
 executed and authenticated as required by the statute. Weimer v. Sloane, 0. S. 
 iv. 174. 
 
 9. B. and S., police constables, while on duty in uniform, arrested W. Q. 
 under a warrant, not in their possession at the time of the arrest, it being at the 
 station house. W. G. was rescued by several persons, who assaulted the con- 
 stables D. and S. Whereupon informations for the rescue and assault were laid 
 against the parties by the constables ; and at the hearing before justices the com- 
 plaint as to the rescue was withdrawn, and that for the assault proceeded with, 
 and the parties were convicted : Held, that the conviction was bad, as the arrest 
 by the constables was illegal, they not having the warrant in their possession 
 at the time. Galliardv. Laxton, N. S. i. 305. 
 
 10. Held, also, that the withdrawal of the information as to the rescue was no 
 bar to proceeding with the complaint as to the assault. Id. 
 
 11. An action will lie against a judgment-creditor for maliciously and without 
 probable cause endorsing a writ of ca. sa., with directions to levy a larger sum 
 than due, and causing the debtor to be arrested thereunder. Gilding v. Eure, 
 N. S. i. 512. 
 
 12. In an action against a sheriff for an escape suffered by his deputy, the 
 return of a rescue upon the writ is not conclusive evidence in favor of the defend- 
 ant. Whitehead v. Keyes, N. S. i. 567. 
 
 13. Warrant of arrest need only recite the accusation, not the evidence. Pratt 
 V. Bogardus, N. S. vii. 378. 
 
 14. Magistrate is protected in issuing if there is colorable evidence. Id. 
 
 ARTIFICIAL WATER COURSE. 
 
 If a riparian proprietor diverts the water of a running stream for artificial 
 purposes, in quantities sufficient to affect injuriously the rights of the proprietor 
 below him, he is liable in damages for the injury. Stein v. Burden, O. S. v. 
 729. 
 
 ASSAULT AND BATTERY. 
 
 1. Evidence in mitigation of damages. Bruce v. Priest-, N. S. ii. 558. 
 
 2. Evidence of special damage. Brown v. Cummings, N. S. iii. 698. 
 
 3. The idea embraced in the expression that a man's house is his castle, is not 
 that it is his property, and that, as such, he has the right to defend and protect 
 it by other and more extreme means than he might lawfully use to defend and 
 protect his shop, his office or his barn. The sense in which the house has a 
 peculiar immunity, is that it is sacred for the protection of his person and of his 
 family. An assault on the house can be regarded as an assault on the person 
 only in case the purpose of such assault be injury to the person of the occupant, 
 or members of his family, and in order to accomplish this, the assailant attacks 
 the castle in order to reach the inmate. In this view it is settled that, in such 
 case, the inmate need not flee from his house in order to escape injury by the 
 assailant, but he may meet him at the threshold, and prevent him from breaking 
 in by any means rendered necessary by the exigency ; and upon the same ground 
 and reason that one may defend himself from peril of life, or great bodily harm, 
 by means fatal to the assailant, if rendered necessary by the exigency of the 
 assault. Slate v. Patterson, N. S. xii. 647. 
 
 4. The master of a fugitive slave, having him apprehended by the marshal, in 
 
62 ASSAULT AND BATTERY— ASSIGNMENT, &c. 
 
 pursuance of a warrant, cannot be arrested for assault and battery committed on 
 such fugitive, while making the arrest in aid and at the request of the marshal, 
 before the final hearing and order of the judge. United States v. Morris, 0. S. 
 ii. 348. 
 
 5. In suits for damages, as to admission of evidence for . defendant showing 
 provocation, see Mowry v. Smith, N. S. v. 121. 
 
 6. To justify a primd facie case of assault it must be shown that no more force 
 was used than the occasion required. Hanson v. European ^ North American 
 Railroad Co., N. S. Xiv. 198. 
 
 "assessment oe taxes, &c. 
 
 1. Assessment under city ordinance not made in conformity therewith is illegal 
 and void. Turfler's Petition, N. S. v. 381. 
 
 2. A lot shall be assessed for its share of the labor and materials for the inter- 
 sections. Van Tassal v. Mayor and Aldermen of Jersey City, N. S. xiv. 258. 
 
 3. An assessment made under the laws of 1873 for excavating rock is illegal 
 if made against the whole frontage. Id. 
 
 4. An assessment made under the charter of the village of Passaic, providing 
 that the whole cost of an improvement shall be assessed upon the frontage, in 
 proportion to the benefit to each lot is illegal. The Delaware, L. ^ W. Bailroad 
 Co, V. Village of Passaic, N. S. xiv. 259. 
 
 5. Since the case of Agnes v. City of Newark, an assessment made under a 
 statute fixing a standard other than actual benefit cannot be sustained. Id, 
 
 ASSESSOR. 
 
 1. Nature of assessor's ofiice, his liability. Barhyie v. Shepherd, N. S. vi. 313. 
 
 2. Duties of assessors. Turfler's Petition, N. S. v. 381. 
 
 ASSETS. 
 
 1. It is a rule of equity in the distribution of the joint and separate assets of 
 insolvent partners, that the individual assets of a partner be first applied to the 
 debts of his individual creditors, and the partnership assets first to the partner- 
 ship debts. Rogers v. Merauda, 0. S. vii. 35. 
 
 2. At common law the heir was liable on the covenants of his ancestor in 
 which he was specially bound, just so far, and no farther, as he had assets by 
 descent. Sail v. Martin, N. S. vi. 757. 
 
 ASSIGNMENT OF DEBTS, CHOSES IN ACTION, CHATTELS, SHAEES 
 OF STOCK, &c. 
 
 1 . The assignment of a negotiable note secured by mortgage carries the mort- 
 gage with it as an incident, but this is so only in equity, and if the assignee 
 comes into equity to foreclose the mortgage he will be made to do equity in regard 
 to any defence the mortgagor may have against the original mortgagee. Louger 
 V. Carpenter, N. S. x. 650. 
 
 2. A release by the assignor of a judgment to the debtor will discharge the 
 latter, where he has had no notice of the assignment, and it has not been marked 
 on the record. Gallagher v. Caldwdl, 0. S. ii. 181. 
 
 3. A debt in the hands of an assignee may be reduced by set-off of claims 
 against the assignor, purchased by the debtor after the assignment, but before 
 notice thereof. Id, 
 
 4. A partial assignment of a debt, not assented to by the debtor, will not bind 
 the latter at law or in equity, nor deprive him of the -right to pay the whole to 
 the assignor, even after notice. Fairgrieves v. The Lehigh Navigation Co., 0. S. 
 v. 161. 
 
 5. The salary of a clerk is not assignable before it is earned, in whole or in 
 part. Id. 
 
 6. Eight of an assignee of a note to set up the statute against a demand of the 
 maker as a set-off. Thompson v. Sickles, N. S. vi. 124. 
 
 7. When judge bound to submit validity of sale or assignment of goods to 
 jury. Pecky. Crouse, N. S. vi. 121. 
 
 8. An assignment by a railroad of a note and mortgage attached to a nego- 
 tiable bond as security, need not be by an endorsement of the note. Murphy v. 
 Dunning, N. S. xii. 125. 
 
 9. It does not require a wrltteti instrument to assign a bond, even at, law; 
 delivery of bond and mortgage is 8ufl3cient. Kamend v. Hueilig, N. S. xii. 61 ! 
 
ASSIGNMENT OE DEBTS, &o. 63 
 
 10. For wrongfully raising ore from laud in another state, and selling and 
 converting proceeds, is assignable. Hoy v. Smith, N. S. vii. 570. 
 
 11. Assignment of a bid at a chancery sale, after the sale is set aside, and a 
 re-sale made, is void for champerty. Newland v. Gaines, N. S. x. 194. 
 
 12. Where a mortgagor, after assigning a policy of insurance to secure his 
 mortgage debt, alienes, there can be no recovery upon the policy in case of 
 subsequent loss by the mortgagee. Grosvenor v. Insurance Co., 0. S. vii. 118. 
 
 13. Although at common law an assignment will not convey a chattel unless 
 it is in esse at the time of the transfer, it is otherwise in equity. Ludlow v. Uurd, 
 O. S. vi. 493. 
 
 14. Personal property follows the law of the domicil of the owner as to transfer, 
 and the execution of an assignment of personalty passes the personalty wherever 
 situate, ipso facto, to the assignee, provided the assignment be valid in the state 
 where it is executed. Mowrij v. Crocker, 0. S. vi. 737. 
 
 15. It is sufficient if any notice of the assignment comes to the debtor ; the 
 assignment works an equitable transfer of the debt, and the notice will charge 
 the debtor with the duty of payment to the assignee. Id. 
 
 16. An attachment subsequently laid, although before the actual reduction of 
 the money into the assignee's possession, cannot prevail against him. Id. 
 
 17. A claim against an innkeeper for money stolen at the inn from the trunk 
 of a guest, is assignable. Stanton v. Leland, 0. S. vii. 264. 
 
 18. Assignment of chose in action. — assignor not a competent witness. Lindslei/ 
 v. Malone, O. S. ii. 572. 
 
 19. Voluntary assignments — subject discussed. O. S. i. 385. 
 
 20. In order to make a voluntary assignment of a reversionary interest of a 
 chose in action, or the like, effectual against the assignor, he must, at the time 
 of the assignment, have done all in his power to make it available. Beech v. 
 Kemp, O. S. iii. 121. 
 
 21. But a reversionary interest standing in the name of a trustee may be trans- 
 ferred by voluntary deed with notice to the trustee, if the assignor has no other 
 means to effectuate his intention. Voijle v. Hughes, 0. S. iii. 122. 
 
 22. Assignment of all claims which the assignor may have on a future day 
 which is named, for sums of money due and to become due for services in the 
 Pire Department of the city of Boston, is ineffectual to pass to the assignee sums 
 earned before that day. Tuiiss v. Cheever, N. S. i. 57. 
 
 23. The assignment by builders of a vessel, of the moneys to become due on 
 the building contract, invests the assignee with no such proprietary interest as 
 will enable him to appear as claimant and defendant in admiralty. Fox v. The 
 Revenue Cutter, 0. S- viii. 459. 
 
 24. A power to seize future chattels is not an assignment of them. Reeve v. 
 Whitmore, N. S. iii. 439. 
 
 25. Conveyance and reconveyance of vessel by way of mortgage is not within 
 the terms of a policy against assignment of insured's interest. Hitchcock v. N. 
 W. Ins. Co., N. S. iii. 500. 
 
 26. A policy is conditioned to be void in certain events, " except to the extent 
 of any interest acquired therein by assignment for valuable consideration." 
 The insured mortgages the policy, together with real estate ; the society is com- 
 pelled to pay the mortgage, and files a bill to take the insured's place as against 
 the real estate :, Held, such a claim cannot be sustained. Solicitor's Life Assur- 
 ance Society v. Lamb, N. S. iii. 686. 
 
 27. Assignment to insure for the tenefit of a vendor and to assign policy for 
 his security, with subsequent insurance and no assignment, operates as equitable 
 assignment of money payable upon the policy in case of loss, but not of policy, 
 and therefore not within clause declaring the interest of insured is not assignable 
 without written consent. Cromwell v. Brooklyn Fire Ins. Co., N. S. iii. 123. 
 
 28. As to where a policy is assigned, and duly approved, contained the usual 
 provision, see State Mutual Ins. Co. v. Roberts, 0. S. vii. 229. 
 
 29. Declarations or admissions by assignors about property assigned, after 
 they have lost control thereof, not part of res gestae, are incompetent against 
 assignees. Peck v. Crouse, N. S. vi. 120. 
 
 30. Assignment of future earnings, effect of. Twiss v. Cheever, N. S. i. 57. 
 
 31 . A judge's salary is assignable, and a purchaser for value of an assignment 
 to order, properly endorsed, acquires a good title. State v. Hastings, N. S. iii. 
 
 378. 
 
64 ASSIGNMENT OF DEBTS, &c. 
 
 32. Of a right of action to sue for a wrong, against public policy and void. 
 So of a mere release of assignee's right. Davis v. Herndon, N. S. vi. 504, 
 
 .33. Assignment of a chattel, held adversely by another, is void. Brown v. 
 Lipscomb, N. S. vi. 504. 
 
 34. What equities, assignee of chose in action, takes subject to. Downer v. 
 Bank, N. S. vi. 448. 
 
 35. General rule in reference to equitable assignments. Id. 
 
 36. An absolute transfer of stock, and a written memorandum of the transac- 
 tion of the same date, are to be construed together. Parks v. ComstocJc, N. S. 
 X. 471. 
 
 37. One seal will suffice for both. Id. 
 
 38. The delivery of a promissory note payable to bearfcr is an assignment of it. 
 Cox's Executors v. Matthews, N. S. viii. 510. 
 
 39. A bill of exchange, drawn by a creditor on his debtor,' and negotiated, 
 does not of itself operate 'as an assignment in equity of the debt. Bank of 
 Commerce v. Bogy, N. S. ix. 193. 
 
 40. Anything that shows an intention on the one side to make a present 
 irrevocable transfer of the debt, and from which, an assent to receive it may be 
 inferred on the other, will operate in equity as an assignment, if supported by a 
 sufficient consideration. Id. 
 
 41. A written order by a creditor requesting his debtor-to pay to a third person, 
 is an equitable assignment which a court will enforce. Conway v. Cutting, N. 
 S. xii. 254. 
 
 42. No particular form of words is necessary to the validity of such an assign- 
 ment. Id. 
 
 43. A claim for money tortiously obtained from a party may be assigned so 
 as to give assignee a right to recover in his own name. Stewart v. Balderson, N. 
 S. xii. 727. 
 
 44. The legislature of a state has the right, in the absence of any constitu- 
 tional provisions to the contrary, to prescribe any formalities in the conveyance 
 of personal property which it may deem expedient, and to make such provisions 
 universal in their application to all who hold property in the state, as well 
 those residing without as within the state's territory. Hanford v. Paine, O. S. 
 ix. 553. 
 
 ASSIGNMENT FOR BENEFIT OF CREDITORS. 
 
 I. ErrECT OP an Assignment, by whom to be made, and what consti- 
 tutes A VALID Assignment. 
 
 1. Whether a debtor who has made a fraudulent conveyance can afterwards 
 assign the property so conveyed to be applied to the payment of his debts w not. 
 Hooper v. Rosenthal, 0. S. v. 46. 
 
 2. Is there any diffisrende between the conveyance of such property to others , 
 in trust for the payment of debts and a conveyance directly to the creditors them- 
 selves ? Id. 
 
 3. A conveyance of property of every kind whatever, in trust for the payment 
 of debts, will include property previously conveyed to defraud creditors, unless 
 it is held adversely by the fraudulent vendee. Id. 
 
 4. The British doctrine with regard to assignments for the benefit of creditors 
 and the American doctrine, discussed. Id. 
 
 5. A subsequent assignment by a debtor cannot divest the lien of a prior levy 
 upon goods. Guthrie's Appeal, affirming Hutchinson v. McClure, O. S. i. 248. 
 
 6. Assignment in Rhode Island held to convey title to personalty in Massa- 
 chusetts, under circumstances, though the assignment would be void in Massa- 
 chusetts. Hunt v. Lalhrop, N. S. ii. 381. 
 
 7. Assignment by an insolvent of all his property, for benefit of preferred 
 creditors, is an act of bankruptcy. Grow v. Ballard, N. S. viii, 237. 
 
 8. Assignment by railroad company of unpaid subscriptions to stock to secure 
 an endorser for the .company, is not an assignment for benefit of creditors. Mc- 
 BroomSf Woods's Appeal, N. S. iii. 309. 
 
 9. Assignment in general terms referring to an annexed schedule may include 
 property not named in the latter. Turner v. Jaycox, N. S. iii. 318. 
 
 10. By partners may provide for payment of private debts out of the residue 
 after paying partnership debts. Id. 319. 
 
 11. It is no objection to an assignment for the benefit of creditors, stipulating 
 
ASSIGNMENT FOR BENEFIT OF CREDITOES. 65 
 
 a release, that the wife of a grantor does not join therein. Breitenbach v. Dungan, 
 0. S. i. 419. 
 
 12. A clanso empowering the assignee to sell on credit makes the assignment 
 void. Suttau v, C'eivland, N. S. ii. 695. 
 
 1 3. Assignment is not made void by a provision for compensation to assignee.?. 
 Campbell V. Woodwort/i, N. S. ii. 251. 
 
 14. If assignment is valid when made, no subsequent acts of assignor or 
 assignee will make it void. Jul'uind v. Rathbone^ N. y. ii. 764. 
 
 15. Sect. 2d of the New York Act of 1860 is directory merely. Id. ' 
 
 16. Where a person having a lease assigns his property for the benefit of his 
 creditors, and the assignment does not disclose, and the assignee is ignorant, thiit 
 the assignor owns such a lease, the assignee will not become liable for subse- 
 quently accruing rent if he does not enter into the possession of the demised pre- 
 mises, as sucli assignee, or do any act which can be regarded as an election to 
 accept the term. Lewis v. Burr, N. S. ii. 301. 
 
 17. Whether ii voluntary assignee for the benefit of creditors stands in the 
 same position as an assignee in bankruptcy, in respect to a lease owned by the 
 assignor at the time of the assignment, discussed by Bosworth, Ch. J. Id, 
 
 18. Assignment for benefit of creditors, made in accordance witii, is governed 
 by the law of assignor's domicil. Hanford v. Paine, S. ix. 553. 
 
 19. A trust in an assignment to pay the legal and necessary expenses of the 
 assignees, with a salaiw of $2000 a year to each, if that did not exceed the allow- 
 ance made by law to executors, and if it should exceed that amount, then at the 
 rate so prescribed for executors, will not render the assignment illegal. Ketelters 
 T. WiLon, N. S. i. 634. 
 
 20. A voluntary assignment for the benefit of creditors, if made in accordance 
 with the law of the assignor's domicil, is efifective to pass the personal property 
 of such assignor wherever situated, unless restrained by some local law. Han- 
 ford V. Paine, 0. S. ix. 553. 
 
 21. Simple contract-creditor cannot set aside assignment. Coopey. Bowles, 
 N. S. iv. 122. 
 
 22. Power of partner to make assignment for benefit of creditors. Hooke v. 
 Stone, N. S. iv. 120. 
 
 23. When binds debt due non-resident, notwithstanding previous assignment in 
 trust of all his estate. Phlhon v. Barnes, N. S. v. 379. 
 
 24. A creditor who attaches .and sells his debtor's goods cannot prove his 
 claim under an assignment. Valentine v. Decker, N. S. viii. 378. 
 
 25. Voluntary assignment; subject discussed, 0. S. i. 385. 
 
 26. The state legislature has the power to prescribe the form for the assign- 
 ment of personal pronerty for the payment of debts or otherwise, and to apply to 
 those holding property ivho reside within the state as well as those residing out 
 of the state. Hartford v. Paine, 0. S. ix. 553. 
 
 27. No particular form of words is necessary to the validity of an assignment 
 bv a creditor requesting his debtor to pav a third person. Conway v. Cutting, N. 
 S. xii. 254. 
 
 II. Of Preferring Creditors, and herein of reserving Property. 
 
 28. Not void for reserving property exempt from execution, without specifying 
 it. Smilh V. Mitchell, N, S. iii. 248." 
 
 29. But it must fairly assign all the assignor's property liable for his debts. Id. 
 
 30. What evidence admissible on the question of good faith, and of value of 
 property. Id. 
 
 31. A provision in an assignment for the benefit of creditors, directing the 
 payment of a fictitious demand to the assignor's wife, renders the assignment 
 void, as intended to hinder and delay creditors. American Exchange Bank v. 
 Webb, N. S. i. 633. 
 
 32. Where, in an assignment, some creditors are preferred, it will not be 
 implied, as against other creditors, that the preference extends to interest accruing 
 after the date of the assignment. Daniel Man's Appeal, 0. S. i. 631. 
 
 33.. Priority between execution-creditor and assignee. Hall v. Whiston, N. S. 
 ii. .558. 
 
 34. Priority of creditors whose claims accrued before passage of homestead 
 exemption acts. While v. Rice, N S. ii. 558. 
 
 35. A general assignment for tlie benefit of creditors, with preferences among 
 
 5 
 
66 ASSIGNMENT FOR BENEFIT OF CREDITORS. 
 
 the creditors, made by insolreiit debtors not resident? of tiiis state, at their plaees 
 of residence, and conveying land situated in tliis state, is void as respects such 
 land, under section 977 of the Code of Iowa, which provides tliat " no general 
 assignment of property by an insolvent, or in contemplation of insolvency, for 
 the benefit of creditors]^ shall be valid, unless it be made for the benefit of all his 
 creditors in proportion to the amount of their respective claims ;" notwithstand- 
 ing that such assignment may be valid by the law of the place where it was 
 made. Loving v. Pairo, 0. S. viii. 441. 
 
 36. Assignment for the benefit of a preferred creditor, under statutes of Ohio, 
 inures to the benefit of all the creditors. Dichon v. Eawxon, 0. S. v. 12.5. 
 
 37. If the construction of a state statute has been settled by the decisicm of the 
 highest court of the state, the courts of the United States uniformly adopt such 
 construction. CooHdgeT. Curtis, 0. S. vii. 334. 
 
 38. In Ohio, a failing debtor may prefer creditors by assignment or otherwise, 
 if done under circumstances which repel the inference of a fraudulent purpose. 
 Id. 
 
 39. The preferences in the assignment are void because forbidden by law ; hut 
 for all other purposes, the assignment is good, and is not avoided, if the railroad 
 company's lessee had no power under their charter to act as trustee ; for, it so, 
 the courts would supply a trustee who was competent. Bittenbendcr v. Eailroad 
 Co., N. S. i. 758- 
 
 III. Or Feaudulent Assignments. 
 
 40. Assignment for benefit of creditors by two members of a firm while the 
 other two are out of the country, is not valid. Coope v. Bow.'es, N. S. iv, 122. 
 
 41. A general assignment for the benefit of all his creditors, by an insolvent 
 debtor, prior to the 1st of June 1867, is rot necessarily fraudulent nor for the 
 purpose of deljiying or hindering creditors, and, therefore, not necessarily an act 
 of bankruptcy. Wells Sf Son, N. S. vii. 163. 
 
 42. Assignment of life-policies by debtor, insolvent when insured, in trust for 
 wife, void against creditors. Elliott's Erecutm-s' Appeal, N. S. v. 377. 
 
 43. An insolvent debtor cannot do, by concealment, what he may not do 
 openly. Hence he cannot, by a secret bargain with a portion of his creditors, 
 compel them to agree to his release on condition of his executing an assignment 
 giving them preferences. Spauld'wg v. Strang, N. S. i. 63.'5. 
 
 44. When the conduct of an assignor shows that he still claims and seeks to 
 derive a benefit from the property to the prejudice of his creditors, it will tend to 
 show that the assignment was originally made with a fraudulent purpose. Flani- 
 gan v. Lampman, N. S. iii 183. 
 
 45. The fact that the assignor, as agent for one of the creditors, purchased 
 part of the property at the assignee's sale, and afterwards continued in possession 
 of it himself, is evidence of the fraudulent intent. Id. 
 
 46. Property fraudulently put in the, hands of a debtor for tlie purpose of giving 
 him a false credit, does not vest in the assignee under an assignment. Audtmied 
 V. Betteley, N. S. iii. 62. 
 
 47. An assignment for the benefit of creditors, made by a debtor who has ab- 
 sconded to a foreign country, carrying with him a large sum of money, is fraudu- 
 lent and void as to creditors, if it contains a stipulation for a release as a condi- 
 
 - tion of obtaining a preference under the assignment. Breitenbach v. Dunqan.O. 
 S. i. 413, 
 
 48. Whether an insolvent debtor who assigns but a part of his property for the 
 benefit of jill his creditors, can ever stipulate for a release, guere. Stewart v. 
 Spencer, O- S. i. 520. 
 
 49. Two partners cannot make an assignment of all the partnership property 
 of an insolvent firm to a trustee with preferences, after the third partner has 
 refused to secure any one of the creditors in preference to others, or to distin- 
 guish between them and in his absence, not out of the country, but where he 
 might be again consulted without unnecessary delay. Bovien v. C'ark, 0. S. v. 
 203. 
 
 50. The third partner repudiated the assignment, and he, with the aid of his 
 copartners and a mortgagee of a portion of his property, who was also a prefer- 
 red creditor, took the assigned property from the assignee, who refused to sue at 
 Jaw for the property, or its value, unless indemnified against costs and expenses. 
 JJeUI, that a court of equity should not entertain a bill against all the partners 
 
ASSIGNMENT FOE BENEFIT OF CllEDITORS. C7 
 
 and the mortgagee to restore the original property to the assignee's firm on ac- 
 count, at the suit of two of the preferred creditors, one of whom had been refused 
 a preference by the non-assigning partner. Bowen v Clark, 0. S. v. 203. 
 
 51. When the principal assigning partner was laboring under the immediate 
 effects of intoxication, which he had just slept off, at the time of the execution 
 of the assignment, with the full knowledge of the agent of the plaintiff who 
 procured the assignment, and of the assignee ; if the circumstance is sufficient to 
 fix upon the transaction the imputation of fraud, it is suspicious, and should not 
 be favored in a court of equity. Id. 
 
 52. A mortgage of a retail store, with possession and a power of disposition 
 reserved to the mortgagor, cither in the mortgage or in any other manner, is to 
 be considered a means of liindering or delaying creditors, and void as against exe- 
 cutions or attachments. But a court of equity will not entertain a bill at the 
 suit of preference creditors under nn assignment, to avoid a mortgage on this 
 ground against the mortgagors and the mortgagee, who is also a preferred cred- 
 itor equal with the plaintiffs, unless there is a deficit of assets, and payment of 
 the debt secured by the mortgage is claimed in full. Id. 
 
 53. Assignment for benefit of creditors, so far as it prefers, is void, hut for all 
 other purposes the assignment is good. Bittenbender v. Railroad Co., N. S. 
 i. 758. 
 
 54. Assignment of a certain lease construed to bo an assignment for benefit 
 of creditors, though not intended as such by the parties. Id. 
 
 55. Though the appropriation of partnership property to the payment of in- 
 dividual debts by an insolvent firm, is fraudulent and renders the assignment 
 void as to creditors of the firm, yet if it be an assignment of all individual as 
 well as partnership property, it is not fraudulent .on its face, where there is 
 nothing to show that all the partners may not have had individual property more 
 than sufficient to pav their individual debts preferred by the assignment. Knauth 
 V. Barrett, N. S. i. 62. 
 
 56. But it is for the assignors and their assignee to show that the individual 
 property of each partner was sufficient to pay his own preferred debts. Id. 
 
 57. Title of purchaser from assignee is good, though the assignment be fradu- 
 lent. Sheldon v. Stnjker, N. S. iv. 252. 
 
 IV. The Assignee — powers anp duties of — and herein op Actions bt and 
 
 AGAINST THE ASSIGNEE. 
 
 58. The right of an assignee to recover a debt due the bankrupt prior to the 
 bankruptcy, does not depend upon the instrument of assignment. Zanlzinyer 
 \. Ribb'e's Assignee, N. S, xii. 52. 
 
 59. Delivery of release by creditor to assignee is deliver}- to assignor. Allen 
 V. Gardiner, N. S. ii. 442. 
 
 60. It seems the declarations of an assignor for the benefit of his creditors made 
 prior to the assignment are evidence against the assignee. McBride v. Dorman, 
 N. S. vi. 736. 
 
 61. Receiver rnnnnt maintain an action which the parties he represents could 
 not, and he must show, their right and his authority. Coope v. Bowles, N. S. 
 iv. 122. 
 
 62. Where there is no conflict with the claims of domestic creditors the as- 
 signees of a foreign bankrupt may sue in the United States courts for property 
 of their bankrupt. Hunt v. Jackson, N. S. vi. 1C9. 
 
 63. Assignee must prove the estate benefited by money paid out by him to 
 have credit therefor. Duffij v. Duncan, N. S. vi. 315. 
 
 64. No title passes on a sale and conveyance of a bankrupt's land by his as- 
 signee. Cleaveland v. Boerum, 0. S. vii, 144. 
 
 65. Where, pending a bill to foreclose a mortgage, the mortgagee becomes a 
 bankrupt, it is not necessary to make his assignee a party to the suit. Id. 
 
 66. Assignee has only the rights of the assignor, not those of an assignee for 
 value. Reed Y. Sajids, JST. S. ii. 185. 
 
 67. A plaintiff assignee may reply the statute of limitations to a set-off against 
 his assignor. Thompson v. Sickles, N. S. vi. 124. 
 
 68. If a voluntary assignment for the benefit of the creditors has been exe- 
 cuted by a debtor, upon the delivery to him of a release from his debts, u, cred- 
 itor who, by a secret agreement not to claim any portion of the proceeds of the 
 estate, induced the assignee, who was also a creditor, to sign the release and to 
 
68 ASSIGNMENT, &c.— ASSUMPSIT. 
 
 procure the signatures of other creditors thereto, cannot maintain an action 
 against the assignee to recover the dividend upon his debt. Frost v. Gage, N. S. 
 j. 567. ^ . , , 
 
 69. Assignee may maintain trespass against one who interferes with the pro, 
 perty. McQueen v. Babcock, N. S. iii. 701. 
 
 70. Such action is not intermeddling within the terms of an injunction. Id. 
 
 71. Such injunction is no bar to a suit against a sheriff for taking the property 
 out of assignee's hands. Therefore the statute of limitations runs in his favor. 
 Id. 
 
 72. Property in hands of assignee cannot be reached by garnishee process. 
 Kimball v. Mulliern, 0. S. iii. 635. 
 
 ASSIGNMENT OF ERRORS. 
 
 A party cannot assign for error the admission or rejection of evidence, or com- 
 plain in this court of an instruction below, unless he tenders or seals a bill at 
 the trial, so that the matter may appear of record. Qudlman v. Jacobs, 0. S. i. 
 248. 
 
 ASSIGNOR AND ASSIGNEE. 
 
 Relation of. See Vint v. King, 0. S. ii. 712. 
 
 ASSIGNS. 
 
 Meaning of. Sec Uolbrook v. Insurance Co., O. S. i. 18. 
 
 ASSOCIATION. 
 
 1 . Legal existence lost by non-user of functions. Strickland Pricliard, N. S. 
 V. 504. 
 
 2. Contributions to a fund for a specific purpose are in hands of trustee only 
 for that purpose, and surplus cannot be used for any other without consent of 
 evoryxontributor. Abel v. McKeen, N. S. vii. 767. 
 
 ASSUMPSIT. 
 
 I. Where Assumpsit lies. 
 
 1. The general nature of the action of assumpsit considered. Ward v. 
 Warner, 0. S. ix. 114. 
 
 2. Will not lie for floating logs through a private canal dug through plaintiiF's 
 Ijind. Id. 
 
 3. The law will not imply a promise to make compensation for the use of the 
 canal before the notice was given, and while it was permitted by the plaintiff 
 without objection and without demand of compensation. Id. 
 
 4. Nor will the law imply such a promise after the notice, since any implica- 
 tion of a promise is precluded by the denial by defendants of all right to com- 
 pensation, and the assertion of an adverse right in themselves. The adverse 
 entry, if the claim of right is unfounded, is a naked trespass, upon which no 
 duty to compensate arises which can be converted into a contract. Id. 
 
 5. Will lie for value of land conveyed in accordance with an agreement to ex- 
 change, where the other party refuses to convey the other land agreed for. Bas- 
 ford v. Pearson, N. S. v. 124 ; Smith v. Hatch, N. S. v. 698. 
 
 6. On account annexed, proof that an item of credit was entered by mistake 
 is incompetent. Saunders v. Osgood, N. S. v. 698. 
 
 7. Private promise to pay for performance of work in which the public gener- 
 ally were as much interested as the promissor, will support assumpsit. Smith v. 
 McKenna, N. S. vii. 120. 
 
 8. Not maintainable for value of goods wrongfully taken, unless they have 
 been sold and converted into money. Woodbury v. Woodbury, N. S. vii. 318. 
 
 9. Lies for value of goods tortiously taken and sold, or wrongfully sold by 
 one in lawful possession. Foye v. Southard, N. S. vii. 439. 
 
 10. Liability of sherifTs vendee of interest in mill-dam for repairs, under 
 agreement between former owners. Campbell v. Band, N. S. v. 181. 
 
 11. Use of dam raises implied promise to pay for repairs. Id. 
 
 12. Will ho upon the special promise, where a duty arises out of an implied 
 undertaking to do an act requiring skill or fidelity. Reeside v. Reeside, N. S. v. 
 247. 
 
 13. There is not necessarily an implied promise that the grantees will pay the 
 amount specified in the deed as the consideration ; circumstances may negative 
 such implication. Beldcn v. Belcien, N. S. xii. 461. 
 
ASSUMPSIT. 69 
 
 14. All siction to recover money paid for the sale of an agency, will lie where 
 there was a fraud in the party selling, ho having no right to make such sale. 
 Baker v. Spencer, N. S. x. 347. 
 
 15. Where the defendant has received goods xvrongfuUy, the owner may waive 
 the tort antl recover for goods sold and delivered. Dei/s/ier v. Trlebel, N. S. a. 
 402. 
 
 16. Where a party who has contracted to purchase an interest in certain oil- 
 wells, transfers his interest to an oil company afterwards incorporated, and the 
 deed is made directly to such company by the vendors, the company may main- 
 tain assumpsit for the oil received hy the vendors, between the date of the con- 
 tract and the incorporation. Snow v. Thonipaon Oil Co., N. S. viii. 753. 
 
 17. Promise to pay voluntary subscription binding, though no promissee 
 named. Comstock v. Hiw,, N. S. vi. 314. 
 
 18. How collected. Id. 
 
 19. A moral obligation founded upon an antecedent valuable consideration 
 may be sufficient to sustain a promise, though the obligation on which it is 
 founded never could have been enforced at law. Gouldinij v. Davidson, N. S. 
 iii. 34. 
 
 20. Will lie for value of, goods tortiously taken and sold. Harpending v. 
 Shoemaker, N. S. ii. 248. 
 
 21. Where owner of stock assigns more shares than he is entitled to, and the 
 company makes good the deficiency, a promise by him to pay will support as- 
 sumpsit. St. Nicholas hia. Co. v. Howe, N. S. ii. 503. 
 
 22. The relation between a son-in-law and his father-in-law, rebuts the pre- 
 sumption of an implied promise of the father-in-law to pay for board. iJauben- 
 speck. Executor, v. Powirs, N. S. x. 62. 
 
 23. Will lie for a balance struck between partners. Knerr v. Hoffman, N. S. 
 X. 541. 
 
 24. Account render is the remedy if no balance is struck. Id. 
 
 25. Where there has been a special contract, a recovery on a quantum meruit 
 cannot be at a higher rate than that stipulated in the contract. Bishop v. Price, 
 N, S, ix. 119, 
 
 26. The sovernment is not liable on ,an implied assumpsit for the torts of its 
 officers. GMons v. United State.i, N. S. ix. 199. 
 
 27. Lies to recover plaintiff's share, on an agreement between plaintiff and 
 defendant to sell real estate and divide profits. Bruce v. Hastings, N. S. viii, 
 506. 
 
 28. When assumpsit is the proper action, when account render. Reeside v. 
 Rzeside, N. S. v. 247. 
 
 29. Lies where contract void by statute has been fully performed and perform- 
 ance accepted. Bartlett v. Wheeler, N. S. v. 441, 
 
 30. A corporation is liable for services rendered after the chartering and be- 
 fore the organization, if it has taken the benefits of such services. Low v. Rail- 
 roal Co., N, S. iv. 438. 
 
 31. Denial of rights of co-tenant by tenant in common of personalty is conver- 
 si >n and will sustain as assumpsit, Fiquet v. Allison, N. S. iii. 766. 
 
 32. For time, labor and money expended a revocation would leave the princi- 
 pal liable on his implieil .assumpsit. Bliick<tone v. Buttermore, N. S. vii. 108. 
 
 33. Note being void for want of stamp, p,ayee may recover in assumpsit on 
 original consideration. Wilson v. Carey, N. S. vii. 634. 
 
 34. Plaintiff entitled to rescind may recover the money paid in assumpsit. 
 Cromgrove v. Himmdrich, N. S. vii, 312. 
 
 35. In a suit brought in assumpsit for breach of contract between an insurance 
 agent and his company, see En'ioorth v. .Vejo York Co., N. S. vii. 332. 
 
 36. Assumpsit is the proper action to recover damages for nourperformance 
 of award. Wh^lcher v. Whiteher, N. S, xi, 50, 
 
 37. An action of assumpsit to recover money so seized, not within the statute 
 of March 3d 1863, limiting actions for arrest or imprisonments under color of 
 authority of the United States to two years. Britton v. Butler, N. S. xi, 293. 
 
 38. Assumpsit does not lie between partners until a settlement is made and a 
 balance struck. Leidy v. Mexsmgir, N. S. xii, 734. 
 
 39. Without an express promise to repay assumpsit will not lie for advances 
 between partners, until there has been a settlement. Id. 
 
70 ASSUMPSIT. 
 
 40. An infant is liable in assumpsit for money stolen. Shaw v. Coffin, N, S. 
 X. 604. 
 
 II. Assumpsit for Wokk, Labor and Sektices. 
 
 41. Where the defendant refuses to compensate the plaintiff for work done, in 
 a particular way agreed upon, he can recover in assumpsit the value of the labor. 
 Stone V. Stone, N. S. xi. 191. 
 
 42. Will not lie to recover in money for the service of plaintiff's minor son, 
 where the contract was that the defendant should pay in boarding, clothing and 
 schooling the son, who voluntarily left defendant's employment, the latter being 
 always ready to pay in manner stipulated. Eoxmdy v. Thatcher, N. S. xi. 262. 
 
 43. Tor labor and services, will not lie against defendant, for services per- 
 formed by his wife's sister, upon an implied promise, where no account was 
 kept, and during all the time the sister was supported by defendant. Bundy v. 
 Ilyde, N. S. xi. 6.59. 
 
 44. Where work has not been done according to contract, but is accepted and 
 used by a party, he is liable on an implied promise for its value. Adams v. 
 Cosby, N. S. xiv. 579. 
 
 45. To maintain a guantum meruit the requisites of the special contract need 
 not be complied with. Id. 
 
 46. To make one responsible for services rendered to another, he must either 
 expressly promise, or conduct himself so that the other understands him to be 
 responsible. Redfieldy. Dana, N. S. xiv. 752. 
 
 47. Contracts with nurses, housekeepers, &(■., sought to be enforced after the 
 death of the person to whom services are rendered, should be closely scanned and 
 not allowed without clear proof, Thompson v. Stevens, N. S. xii. 727. 
 
 48. A promise, that if plaintiff would stay with decedent as long as he lived he 
 would give her plenty after he was gone, so that she need not work, is sufficiently 
 definite. Id. 
 
 49. The measure of amount would be what would keep her without work, tak- 
 ing into consideratian her condition in life. Id. 
 
 50. Where services are gratuitously rendered under expectation of a legacy, 
 there can be no contract. Id. 
 
 51. The mere signing of a petition by several creditors, to have a sequestrator 
 appointed, is no evidence of a promise to pay the lawyer who presents it. Cook 
 V. Machrell, N. S. xii. 398. 
 
 52. Not to be implied between members of family living together. Wilcox v. 
 Wilcox, N, S. vii. 56. 
 
 53. Will lie for an assignee of an order of one party on another for money 
 due for wages to infant son of the former. Kent v. Watson, N. S. v. 697. 
 
 54. An action of assumpsit may be brought against a city or town to recover a 
 reward offered for the apprehension of a criminal Janvrin v. Town of Exeter, 
 N. S. viii. 570. 
 
 55. Relationship of father-in-law and son-in law not in itself sufficient to 
 rebut implied promise for services — what facts will. Amey's Appeal, JH. S. v. 
 121. 
 
 56. Law implies contract to pay for services if relationship does not rebut the 
 presumption. Gardner's Adm. v, Heffley, N. S. v. 56. 
 
 57. Niece may recover. Id. 
 
 58. Where a physician renders professional services to a married woman at her 
 request, and expressly upon her credit, while she is living apart from her hus- 
 band, he cannot afterwards recover in assumpsit against the husband. Carter v. 
 Howard, N. S. vi. 411. 
 
 59. Lies for services rendered in saving property carried away by freshet. 
 Sheldon v. Sherman, 'f!. S. iv. 383. 
 
 60. Eule requiring express promise to pay for child's services after coming of 
 age applies to adopted child. Lunay v. Vaniyne, N. S. vii. 764. 
 
 61. Not liable on a quantum meruit for officer's services. Kilpatrick v. Bridge 
 Co., N. S. V. 124. 
 
 62. Where one enters into a contract to perform services, part of which are 
 illegal, he cannot recover in assumpsit upon a quantum meruit for any portion. 
 Bixley V. Moor, N. S. xi. 721. 
 
 III. Assumpsit foe Monet had and reof.ived. 
 
 63. A school district may maintain an action for money had and received, 
 
ASSUMPSIT. 71 
 
 against a school corainittee wlio have neglected to appropriate money in their 
 hands as directed. School District Xo. 7 in Auburn v. Sherburne, N. S. viii. 568. 
 
 C4. Lies to recover money advanced to a corporation for shares of its capital 
 stock. Swazci/ V. Choate iJanvfiicturing Co., N. S. viii. 569» 
 
 65. Assumpsit for money had and received lies where one tortioasly in pos- 
 session of another's goods converts them into money. Baker v. Spencer, N. S. 
 X. 347. 
 
 66. The count for money had and received is governed by equitable principles 
 and only lies where the defendant ex cequo et bono ought to refund. Id. 
 
 67. VVhere there has lieen no fraud or deceit, and the defendant may with a 
 good conscience retain tlie money, he cannot be compelled to repay on a count 
 i'or money had and received. Id. 
 
 68. An action for money paid, will lie to recover money paid for an object 
 never accomplished, and which has become impossible to accomplish. Churchhdl 
 V. Stone, 'S. S. x. 3+2. 
 
 69. For money had, &c., may be maintained by creditor against one to whom 
 his debtor has delivered money to pay the debt. Stoudt v. Hine, N. S. iii. 571. 
 
 70. No promise in writing is required, as the statute of frauds does not 
 apply. Id. 
 
 71. Jloney paid by a bank to a bank through the fraud of the teller of the 
 latter, may be recovered in assumpsit. Atlantic Bank v. Merchants^ Ba?ih, 0. S. 
 ix. 241. 
 
 72. If the parties to an illegal contract arc not in pari delicto, the one taken 
 advantage of may recover money paid, in an action for money had and received. 
 Inhabitants of Concord v. Delaney, N. S. x. 664. 
 
 73. Action by commonwealtb against contractors to recover excess, received 
 by them from sale of scrip, at greater rate than that at which it was issued. 
 Commonwealth v. Haupt, N. S. v. 315. 
 
 74. For money liad and received, will lie where a contract is rescinded, to 
 recover the money paid under it. Manahan v. Noi/es, N. S. xii. 671. 
 
 75. For money had and received. Murphy v. Ball, N, S. ii. 631. 
 
 76. Assumpsit on common counts will not lie to recover a deficiency of logs 
 given to one to be sawed. Sidterlee v. MelUck, N, S, xiv. 579. 
 
 77. Where there is no count on a contract to keep as bailee, it is error to 
 charge that defendant is liable, unless he took such care of the logs as a prudent 
 man would of his property. //. 
 
 78. Even if one-fi ih of the fare was a capitation tax, and unconstitutional, 
 the company having collected it could not retain it as against the state, and 
 assumpsit for money had and received would lie by the state to recover it. State 
 of Maryland V. B. ^- 0. Railroad Co., N. S. xi. 54. 
 
 79. One receiving money on trust, and, wholly neglecting duty, converts it, is 
 liable in tort for money had and received. Reeside v. Reeside, N. S. v. 247. 
 
 IV. Indebitatus Assumpsit fop. Money paid, laid out, &c. 
 
 80. When plaintiff may recover for money paid, as price of goods in the pos- 
 session of a third person failing to deliver. Griggs v. Morgan, N. S. v. 57. 
 
 81. A promise made to a third party to pay a note will not enure to the own- 
 er's benefit. Grant v. Mirrill, X. S. xiv. 711. 
 
 82. In an action to recover back money paid under a mistake of fact, it is no 
 defence that the plaintiff had within his reach the means of ascertaining the truth, 
 or that he omitted to use vigilance and c.ire by which the mistake would have 
 been avoided. Kingston Bank v. Ettinge, N. S. ix. 55, 
 
 83. Nor is it any defence to such an action, that the defendant cannot be re- 
 stored to his original position upon paying back the money. Id. 
 
 84. Money paid by the putative father of an unborn bastard to the superintend- 
 ent of the poor upon a compromise, may be recovered back upon its appearing 
 that the supposed mother was never pregnant. Reehl v. Hicks, N. S. iii. 56. 
 
 85. Money paid voluntarily under a mistake of facts, cannot be recovered 
 back. Brown V. Rich, N. S. iii. 188. 
 
 86. Where gold coin was deposited as security, and not returned, damages 
 must be measured by the amount of gold as money. In trover, the measure 
 would be the value of the gold at the time of conversion. Frothinghamv. Morse, 
 N, S. V. 698. 
 
72 ASSUMPSIT. 
 
 87. Will not lie to recover money volunfarily paid with full knowledge of the 
 facts. Lester v. The Mayor, N. S. viii. 695. 
 
 88. Will not lie ibr'moiiey paid on a note, on the ground of failure of con- 
 sideration, when the facts wei'e known at time of payment. Sessions v. Mestrve, 
 N. S. V. 699. 
 
 89. One journeying with a lunatic at former puardian's request may recover 
 proper and reasonable expenses. Evidence of value of such services. Kendall 
 V. Hay, N. S. v. 319. 
 
 90. Will not lie against agent for balance of monej's, to be laid out in special 
 manner, where trust has actually commenced. Reeside V. Reeside, N. S. v. 247. 
 
 91. Lies to recover money paid ior the assignment of a sealed instrument 
 whichthe assignor fraudulently induced assignee to purchase. Burtons. Dnyiji, 
 N. S. xiv. 249. 
 
 92. There is no implied contract on the part of a parent to pay for services or 
 board and lodging furnished by a cliihl. Smith v. Venmun, N. S. xiv. 578. 
 
 93. Taxes voluntarily paid by the plaintiff on land in possession of the defend- 
 ant , without his request, cannot be recovered i'rom defendant. Bri/ant v. Claik, 
 N. S. xiii. 51. 
 
 94. Where plaintiff pays the defendant, a constable, the amount of an execu- 
 tion in his hands against him, with the fees for the collection, he cannot recover 
 the fees so paid. Straffurd v. Blaisddl, N. S. xiii. 51. 
 
 95. A party who furnishes a supper to a large number of men, may recover 
 the price from the ones who ordered it, though the supper was the result of a bet 
 on a squirrel hunt. V/inchester v. Nutter, N. S. xiii. 53. 
 
 96. Where a party has unlawfully sold securities belonging to another, the 
 latter may waive the fraud and sue in assumpsit. Allen v. United States, N. S. 
 x.ii. 326. 
 
 97. A voluntary payment cannot be recovered back. Gilson v. Bingham, N. 
 S. xi. 73. 
 
 98. A payment of an illeg.nl demand, with full knowledge of the facts, though 
 made under protest, cannot be recovered back. Commissioners v. Walker, N. S. 
 xi. 335. 
 
 99. Assumpsit will not lie against county treasurer to recover such taxes. 
 Swanston v. Ijams, jST. S. xiv. 54. 
 
 100. Indebitatus assumpsit will not lie on a special contract unless it has been 
 fully performed by plaintiff. Powelton Coal v. AtcShain,i}. S. xiv. 196. 
 
 101. Tenant may recover the value of the repairs if they exceed the rent in 
 assumpsit. Smith v. Newcastle, N. S. viii. 443. -v 
 
 V. Pleadings asd Evidence in Assc.mpsit, 
 
 102. Under tlio general issue in assumpsit, evidence is admissible to shi w that 
 the alleged cause of action did not exist at the commencement of the action. 
 ULt.vn V. Etdred, N. S. vii. 402. 
 
 103. Where the declaration is on a parol contract and a written one is given 
 in evidence without objection, it will he held to be a waiver of the objection that 
 the instrument was a specialty. Wolf Creek Coal Co. v. Shultz, N. ti. xii. 783. 
 
 104. Such variance can be taken advantage of only when the evidence is 
 ■'offered. Id. 
 
 105. Admission of plaintifPs testimony, to vary charge in his books. FoUom 
 v. Skojield, N. S. vi. 564. 
 
 106. Action to recover for nails borrowed. Carr v. McDonald, N. S. vi. 565. 
 
 107. The law implies eontr.ict to pay for services if relationship does not rebut 
 presumption — evidence in such cases. Gardner's Adm'r v. HeJJley, N. S. v. 57. 
 
 108. Although an existing liability is a good consideration for a promise 
 whether expressed or implied, to pay money on request, yet is not sufficient that 
 a declaration on such a promise should merely state that there existed such a 
 liability ; it must state the facts on which it arose, and in such a manner that the 
 court can see that there was such a liability. Bailey v. Bussing, N. S. i. 187 
 
 109. Declaration in cases of warranty, see note to Aikn v Schuchardt N S 
 i. 16. J • ■ 
 
 110. Origin of the practice. Id. 
 
 111. Voluntary subscription, how collected. Comstock v. Howe, N. S. vi. 314. 
 
 112. Generally, where there is evidence of conversion by a wrongdoer plain- 
 tiff may waive tort and sue in assumpsit. Saltcrke v. Melick, N. S. xiv. '579. 
 
ASSUMPSIT— ATTACILMEXT. 73 
 
 113. Tu maintain assumpsit for goods sold and delivered against two defend- 
 ants, plaintiff must show a joint promise. Fu'ler v. M^Uer, N. S. x, 130. 
 
 114. Declaration containing; common money counts cannot he amended hy 
 adding special oount upon a lease for damages for not carrying on farm properly, 
 O'Burt V. Kinne, N. S. vii. 250. 
 
 ATTACHMENT. 
 
 I. Attachment Generally. 
 
 1. Tlie levy of an attacliment does not divest the debtor of the property levied 
 upon, it merely creates a specific lien upon the property, ivhich cannot be sold 
 until after judgment against the deh-or. Snc.U v. Allen, 0. S. i. 377. 
 
 2. Property taken by a writ of attachment will bo released by a delivery bond, 
 l)ut such bond will not deprive the defendant of an issue and trial upon the facts 
 set forth in the affidavit upon which the^attachment issued. Curtis v. Cleighorn, 
 0. S. i. 696. 
 
 3. May be valid, though for claim on notes not due. Jordan v. Keene, N. S. 
 Tii. 439. 
 
 4. Qtmrcf Whether a judi;ment in an attachment suit m Massachusetts is a 
 bar to a suit brought in Xcw York on premium notes given to an insurance com- 
 pany. Osgood y. Mugu.'rr, N. S. xi. 191. 
 
 5. Though an extraordinary remedy, the plaintiff is to be protected when he is 
 ■within the spirit of the statute authorizing it. Rnwles v. Hocire, N. S. xi. .')90. 
 
 6. In New York, may he dissolved, for wont of jurisdiction, fraud in obtaining, 
 defective papers, and various other causes. /:/. 
 
 7. Motion to dissolve may be made after judgment in the action. Id. 
 
 8. The plaintiff may oppose motion to dissolve, by affidavits contradicting the 
 defendant*. /(/. 
 
 9. Owner of property attached may have action against the attaching officer 
 for negligence pending the attachment. Brigrj; v. Tinj'or, N. S. iv. .56. 
 
 10. Damages in sucli case may be paid into court to await the determination 
 of the original nttMcliment suit. Id. 
 
 11. An attachment once dismissed loses its priority, even though reinstated 
 by consent of the defendant. Miirp/vj v. Bruce, N. S. viii. 308. 
 
 12. An attachment, under which goods have been seized, which is set aside for 
 irregularity, affords no protection to the plaintiffs. Lyon v. yates, N. S. viii. 
 379. 
 
 13. After issue joined between the parties, the court could make no order 
 quashing the attacliment, which could in any manner interfere with the issue. 
 Carr y. Coopwood, O. S. i. 699. 
 
 14. An affidavit for an attachment process which says that '^ the owner or person 
 interested in the steamboat Biickeye, now lying in tlie navigable Avaters of the 
 Mississippi, is indebted to him in the sum of, &c.., to the best of Iiis knowledge 
 anil belierf, for and on account of said steamboat," is sufficient under our attach- 
 ment laws to uphold the attachment. Ziin? v. Fleamhout Buchrije, O. S. i. 699. 
 
 15. In proceedings begun by attachment against a non-resident, who docs not 
 appear and defend the suit, the judgment only operates in ran, and binds nothing 
 but the property levied on. Ridley v. Ridley, 0. S. i. 699. 
 
 16. An attachment levied more than four months previous to bankruptcy is 
 good, and the creditor entitled to judgment thereon. Butchelder v. Putnam, N. 
 S. xiv. 453. 
 
 17. The attachment of the separate property of a partner for a partnership 
 debt takes precedence of an attachment by a separate creditor, if the separate 
 debt was not contracted until the laying of first attachment. Miles v. Pennor.k, 
 N. S. xi. 269. 
 
 18. The creditor's cquitv is superior to that of an attaching creditor. Rowan 
 V. Stale. B'lnk, N. S. xiii. .53. 
 
 19. Trover may be maintained hy officer aeainst receipter for goods attached 
 on mesne process. Iln't v. Burhanh, N. S. vii. 318. 
 
 20 The measure of damages is the full value of the goods and all the taxable 
 costs of the litigation, the whole, however, not to exceed the amount of rent due. 
 Mnr hull V. Knox, N. S. xii. 630.. 
 
 21. The assignor may maintain an action without new demand, although the 
 
74 ATTACHMENT. 
 
 (vssicnment was made to obviate the objection to an attachment by a non-resident. 
 MuBride v. Farmers' Bank, N. S. iii. 636. 
 
 22. Attachment by creditor of an insolvent's property in another state. Dehori 
 V. Foster, N. S. iii. 506. 
 
 23. Where there is a valid writ and levy, the judgment of a court in attach- 
 ment suits cannot be held void collaterally in other suits. ' Cooper v, Reynolds, 
 S. S. X. 62. 
 
 24. An attachment on order of court of tenant's goods is not an execution 
 within the meaning of the statute of 8 Anne, ch. 14, sect. 1, but landlord is enti- 
 tled to his rent out of the proceeds of the sale. Thomson v. Baltimore Steam Co., . 
 N. S. X. 539. 
 
 25. Appropriation of payments to wages and profits between employer and 
 employee or his attachiny-creditors. Smith v. Brooke, N. S. v. 122. 
 
 26. Proceedings in attachment partake of the character, both of suit tn rem and 
 in personam. Cooper v. Reyno'ds, N, S. x. 62. 
 
 27. The law regards the attachment of a mortgage debt as an assignment of 
 the mortgage, so as to enable the attaching party to maintain n, scire facias in 
 his own name. liuJiton v. Rowe, N. S, x. 344. 
 
 28. Money due by an insurance company for a loss is ' attachable, though the 
 goods insured were exempt. Wooster v. Page and Trustee, N. S. xiv. 394. 
 
 29. One who issues an attachment wrongfully is liable for injury occasioned 
 thereby. Tweedy v. Sampson, N. S. xiv, 391. 
 
 30. Probable cause for believing it proper, though no defence, may go in miti- • 
 gation of damages. Id. 
 
 31. Injury to defendant's credit is a legitimate basis for recovery of actual 
 damages. Id. 
 
 32. Where articles attached are too bulky to be taken into the manual posses- , 
 sion of the officer, his return must be so certain and explicit in the description 
 and situation of the property, that subsequent purchasers can obtain substantially 
 the Sf.me notice as they would from actual possession, otherwise the attachment 
 will not be valid. Bryant v. Osgood, N. S. xii. 657. 
 
 33. An attachment of ten swarms of bees does not bind the hives. Ide v. Fas- 
 sett, N. S. xii. 730. 
 
 34. In Illinois, an attachment on personal property takes precedence of an 
 unrecorded mortgage. Green v. Van Buskirk, N. S. viii. 246. 
 
 35. Attaching Creditor has right in equity to redeem land from prior encum- 
 brance. Chandler v. Dyer, TS. S. v. 508. 
 
 36. Effect of his payment of prior mortgage. Id. 
 
 37. Attachment under sect. 227 of New York Code will not lie in a claim for 
 unliquidated damages. Shaffer v. Mason, N. S. v. 122. 
 
 38. Goods obtained on fraudulent representations may be reclaimed by the 
 vendor, even after attachment by creditors of vendee. Field v. Stearns, N. S. 
 ix. 578. 
 
 39. An officer attaching a store of goods is liable in damages for an unneces- 
 sary expulsion and continued exclusion of the owner. Perry v. Carr, N. S. ix. 
 636. 
 
 .II. I?OREiGN Attachment. 
 
 40. An administrator is not liable to foreign attachment. Conway v. Arming- 
 ton, N, S. xiv, 391. 
 
 41. Our foreign attachment is a procedure in rem, and a sale of chattels under 
 it passes the title clear of all liens, and the claim of the lien-holders attaches to 
 the proceeds, which will be distributed according to the rights of all. Carriil v. 
 Taylor, 0. S. iii. 394. 
 
 42. Where chattels are sold as perishable under a foreign attachment, the whole 
 title is transferred, and all claimants and lien-holders must come in and claim 
 against the proceeds before distribution. Id. 
 
 43. Practice where property attached is claimed by a third person. Id. 
 
 44. Notliaible in foreign attachment for bounty voted to volunteer. Brown v. 
 Heath, N. S. iii. 125. 
 
 45. Where A. shipped blooms to Philadelphia, consigning them to B. & Co , 
 with written instructions to deliver them " to the order of C.," and thev were fo 
 received and 85 pieces forwarded to C, who subsequently became insolvent, the 
 right of stoppage m transitu in A. is gone, inasmuch as the transit was completely 
 
ATTACHMENT. 75 
 
 at an end when the hlooms reached B. & Co., who held them subject to C.'s orders 
 and as his agents ; and D. may issue foreign attachment and seize the blooms as 
 C.'s property. Campbell v. Cabe.en, O. S. v. 683. 
 
 46. Where several foreign attachments are simultaneously executed upon the 
 same property, the judgments obtained upon them should bo paid pro rata. Case 
 V. Case, 0. S. ii. 253. 
 
 47. A sale under foreign attachment or similar proceeding in a state court does 
 not affect liens created thereon by the law of another state. Devinnei/ v. The 
 Me/nphis, 0. S. ii. 666. 
 
 48. A vessel seized under process of foreign attachment in a state court, ^vas 
 subsequently libelled in admiralty for seamen's wages, and attached by the mar- 
 shal while still in custody of the sheriff. The vessel was sold as perishable in 
 both proceedings. Held, that the common-law jurisdiction had attached and the 
 sheriff's title was superior to the marshal's. Carryl v. Tay'or, 0. S. ii. 333. 
 
 49. The pendency of an attachment suit in Massachusetts is no bar to a suit 
 brought in New York by the receivers of an insurance company upon the pre- 
 mium notes. Osgood \. Haguire, lA S. xi. 191. 
 
 50. The defendant in foreign attaAment in account render is not a party in a 
 scire facias against the garnishee, nor non-resident partner in attachment execu- 
 tion. Knerr v. Hoffman, N. S. x. 541. 
 
 51. A b.ilance struck between partners may be attached. Id. 
 
 52. Goods of non-resident debtor in the hands of a resident of this state may 
 be attached, though the goods themselves are not in the state. Childs v. Digbi/, 
 0. S. iii. 301. 
 
 III. Domestic Attachment. 
 
 53. The civil code of Kentucky authorizes the creditors of a citizen who leaves 
 the county of his residence and remains absent thirty days within the Confederate 
 lines, to attach his property and sell the same for payment of their debts. 
 Thomas v. Mahone, N. S. xii. 433. 
 
 54. A corporation existing under the laws of two states is presumed to know 
 the laws of both, and so far will be treated as a domestic corporation in each. 
 Pierce v. Railroad Co., N. S. xiv. 249. 
 
 55. If the bond required by the Act of 1864 of M.iryland, is not executed in 
 conformity with the statute, prior to the issuing of an attachment, it is invalid, 
 and the attachment illegal and void. Wannamakcr v. Bowes, N. S. xii. 61. 
 
 56. In an action by a mortgagee against a creditor of the mortgagor for ille- 
 gally attaching the mortgaged goods, he cannot show that the mortgage is fraudu- 
 lent as to creditors, in defence of the action or mitigation of damages. Id. 
 
 IV. Attachmext-execution. 
 
 57. If the owner of goods, to prevent them from being attached as his own, 
 represent that they belong to another, and the party to whom the representation 
 is made relying, and from the circumstances having reason to rely, on the rep- 
 resentation as true, attach the goods for a debt due from the party to whom it 
 was represented that the goods belonged, in trover for attaching the goods, the 
 owner will not be permitted to show that his representation was false, though at 
 the time when he made it he had no notice of the debt on which the goods were 
 attached, and had no intention to deceive the party who attached thom, Horn 
 V. Cole, N. S. xii. 303. 
 
 58. Interest will not cease after the service of the attachment, where the delay 
 is occasioned by the unreasonable conduct of the garnishee. liushlon v. Howe, 
 X. S. X. 344, 
 
 59. Garnishee may avoid liability for interest by paying money into court. 
 Id. 
 
 60. Funds of principal, deposited by the agent in bank, arenot liable to attach- 
 ment for debt of agent, unless it is shown that part belongs to such agent. Bank 
 V. Juggnrs, N. S. i.x. 578. 
 
 61. Judgment cannot be rendered against a, garnishee, where his contract is 
 to pay the defendant in atti\chment in property. Weil v. Tgler, N. S. viii. 378. 
 
 62. Garnishee may use any defence against attaching creditor which he has 
 against defendant. Friehaughv. Stone, N. S. v. 441. 
 
 63. When a subsequent attachment-creditor may move for discharge of attach- 
 ment in a prior suit. 1 ham v, Kelchum, N. S. vi. 125. 
 
76 ATTACHMENT. 
 
 6+. An agreement of laborer to waive exemption of wages from attachment, 
 is void. Firmstone v. Mack, N. S. v. 253. 
 
 C5. Jurisdiction by attacliment cannot be acquired where plaintiff fails to show 
 the action arises on contract, judgnient or deeroo. Pope et al. v. liibtrnia In- 
 surance Company, N. S; xiv. 192. 
 
 66. Where there is no jurisdiction as to defendant, garnishee is not liable for 
 failure to answer. Id, 
 
 67. A judgment against a garnishee is not a protection unless he has availed 
 himself of every defence which he knows of to the suit. Pierce v. The C. ^ N. 
 'W. IlaUroad Co., N. S. xiv. 249. 
 
 08. Under the laws of Wisconsin the " earnings of all married persons," for 
 sixty days prior to issuing of any process, are exempt from attachment. Id. 
 G9. The garnishee to protect himself must notify the debtor. Id. 
 
 70. Attaching creditor cannot avail himself of a momentary seisin in his 
 debtor of a greater estate than at the time of attachment. Hazleton v. Lesure, 
 N. S. V. 126. 
 
 71. Money coming into garnishee's hands after service and before dissolution 
 of attachment, bonnd thereby. Midion v. Kunkle, N. S. v. 379. 
 
 72. Justice of the peace has no jurisdiction of attachment-execution against 
 wages of labor or salaries. Firmstone v. Mack, N. S. v. ^53. 
 
 73. A creditor of an assignor for the benefit of creditors cannot attach liis 
 goods in the hands of the assignee. Cook v. liogrrs, N. S. xiv. 453. 
 
 74. Where an attachment in execution is intended to reach a debt, the debtor 
 of the defendant, and not one who merely hokls the evidence of the debt as an 
 assignee for creditors, must be made garnishee, McConnell v. Raiguel, O. S. iv. 
 382. 
 
 75. Property held under a valid assignment is not subject to attachment. 
 Johnson, Garnishee, v. Iiigersoll, N. S. x. 473. 
 
 76. An attachment will be sustained against a debtor who has assigned his 
 property to defraud his creditors, Johnson v. Lauc/hlin, N. S. x. 473. 
 
 77. On a sale for cash the title does not pass until payment, and no debt is 
 created which can bo attached. Paul, v. Reed, N. S. xii. 668. 
 
 78. There can be no judgment against a trustee in an attachment suit of real 
 estate unless there is flrst a judgment against the principal defendant. Wath- 
 burn v. Mining Co. and Allen, Trustee, N. S. viii. 634. 
 
 79„ The funds of an insolvent corporation in the hands of a banker are liable 
 to execution attachment by a creditor of tlie corporation. Penrose v. Erie Canal 
 Co., 0. S. vii. 126. 
 
 80. It is no defence for a garni,«hce that his agent paid over the debt attached 
 before he had notice, if the attachment was served at his usual place of residence. 
 Conley v. Chllcote, N. S. xiv. 752. 
 
 81. Nor that the debtor could have held the money under the exemption laws 
 of the state. Id. 
 
 82. Interest on a debt d,uo by a garnishee to his creditor as whoso property it 
 is attached, is suspended during the proceedings, Juckcon v. Lloyd, N. S."iii. 
 309. 
 
 83. Municipal corporation cannot bo made garnishee in attachment. Burn- 
 ham V. Fond du Lac, N. S. iii. 509. 
 
 84. If the purchaser pays by giving his negotiable notes to a third partv, ho 
 cannot be garnisheed by the creditors of the vendor. Ditfendorf v. Oliver, ii. S. 
 xi. 395. 
 
 85. Attachment of funds in his hands as trustee. Groome v. Lewis, N. S. vii. 
 255. 
 
 86. Whether an insurance CQmpany can be held upon the process of garnish- 
 ment depends upon the state of the claim at the time of service of process. 
 Martz v. Detrn't F. jj- M. Ini. Co., N. S. xiii. 461. 
 
 V. AtTAC IMENT IJf MAniTIME CaL'SES. 
 
 87. A service of a libel in a proceeding in personam on a maritime contract 
 against a citizen of another district by attachment of his properry, is a good 
 service and the court obtains jurisdiction. Manchester v. Hotchk'iss, N. S. x. 
 379. 
 
 88. Service of a libel in personam in a maritime canse, in the admiralty court 
 of one district, upon a citizen of another district by attachment of his property, 
 
ATTACHMEiNT— ATTORNEY. 77 
 
 is not a good service and confers no jurisdiction. Insurance Co. v. D. ^- C. Steam 
 Navigation Co., N. S. x. 3S3. 
 
 89. Wlieri the sheriff, who attaches a vessel, allows her to go into the 
 hands of third parties, who use her and tinally sell her, both the sheriff and such 
 third parties will be treated as trustees for all the parties interested in the pro- 
 perty, and in case the attaching creditor procures a judgment in the attachment 
 suit, he may compel the sheriff and the parties having the earnings and proceeds 
 of the vessel to account for the same, and have them applied to the payment of 
 his judgment. Xortoii v. Hixon, 0. S. ix. 311. 
 
 90. A court of chanceiT has jurisdiction in such case, although the earnings 
 and proceeds might have been reached by a garnishee, it furnishing a much safer 
 and more efficient remedy, and the funds being treated as trust funds. Id. 
 
 ATTESTATION. 
 
 1. When the decedent failed to declare to the subscribing witnesses that the 
 paper which they w^re called to attest was his last will and testament, but simply 
 acknowledifcd his signature, and requested them to sign at a particular place 
 pointed out by him : Held that this was not a valid testamentary declaration. 
 Hunt v. Mooirie, 0. S. iv. 395. 
 
 2. The Act of Congress does not forbid the union of the offices of judge and 
 clerk in the same person ; and it is no objection therefore to the attestation ami 
 certificate of a record from a sister state, that they are both given by the same 
 person, where the laws of that sister state provide for such union. Taylor v. 
 H'nchmnn, O. S. v. 424. 
 
 3. The rule of law requiring the evidence of an attesting witness has been 
 gradually relaxed ; and where advertisements have been inserted in newspapers, 
 and reasonable endeavors made to discover the witness, the court will receive 
 secondary evidence. Blakenei) v. Regan, 0. S. i. 307. 
 
 ATTORNEY. 
 
 I. AUTHOKITY OF AN AtTOKNET. 
 
 1. It is too hate for a client to object to the purchase of his bonds by the attor- 
 ney after twelve years. Marsh v. Whitmore, N. S. xiv. 519. 
 
 2. Presumptivelv an attornev who appears for a party has authority so to do. 
 Bill V. Mendenhal.'., N. S. xiv. 524. 
 
 3. Though it may be proved that he had no authority, it must be done under 
 a special plea. Id. 
 
 4. An attorney, by purchasing the interest of the adversary, acquires no right 
 as against his client. Davit v. Smit/i, N. S. xi 51. 
 
 5. The authority of an attorney to bring a suit will be presumed until contrary 
 is shown. Town of Lisbon v. Ilotton, N. S. xi. 719. 
 
 . 6. An attornev has no incidental power as such to pledge the credit of his 
 client by employing another attorney as assistant. Willard v. Danville, N. S. 
 xii. 727. 
 
 7. Courts do not take judicial notice of who are practising attorneys. Cothrcn 
 V. Connaughten, N. S. ix. 119. ^ 
 
 8. The rule prohibiting a justice from practising as attorney or counsellor, does 
 not extend to a case where the justice is interested in the subject-matter. Libbij 
 V. Ro<"krans, N. S. ix. 260. 
 
 9. To impart an irrevocable quality to a power of attorney, as the result of 
 legal principles alone, there must co-exist with the power an interest in the thing 
 or estate to be disposed of or managed under the power. Hartley ^ Morris's 
 Appeal, N. S. vii. 106. 
 
 10. An attorney acknowledging service on the back of a summons is presumed 
 to have authority. Hendrix v. Fniler, N. S. a. 403. 
 
 11. An attorney at law has no authority as such to sell or assign the claim of 
 his client. Rmvland v. Slate and Moijer, N. S. viii. 632. 
 
 12. The equity to have the set-off does not arise till judgment is entered in the 
 second action. Muckeij v. Murkey, N. S. iv. 437. 
 
 13. Semble, may bind his client to a case stated. Whitcomb v. Kephart, N. S. 
 v. 440. 
 
 14. When agreement that several cases shall abide decision in one, within 
 authority of. Railroad Co. v. Stephens, N. S. v. 441. 
 
 15. Receiving note for collection, after maturity, cannot sell or assign it. 
 (Joodfd'.owy. Lamlis, N. S. v. 441. 
 
78 ATTORNEY. 
 
 16. Attorney and client, subject discussed. N. S. v. 385. 
 
 17. In order to make an agreement for irrevocability, contained in a power to 
 transact business for the benefit of the principal, binding on him, ther.e must be a 
 consideration for it independent of the compensation to be rendered for the service 
 to he performed. Bhickdone v. Buttermore, N. S. vii. 108. 
 
 1 8. Where, in a power with a clause of irrevocability, the agreement was to 
 give the agent a certain sum and portion of the proceeds of the sale he wns 
 nutliorized to make, for his compensation, and he expended time, labor and 
 money thereunder, the power was not thereby rendered irrevocable. Id. And 
 see hartley ^ Morris's Appeal, N. S. vii. 1U6. 
 
 19. For time, labor and money expended, a revocation would leave the prin- 
 cipal liable on his implied assumpsit. Id. 
 
 20. Has no authority to purchase for his client land sold under mortgage. 
 Savsri/ V. Sijpher, N. S. vii. .'571. 
 
 21. Service upon is sufficient, except where the proceeding is to bring the 
 party into contempt. Fiijnn v. Bailey, N. S. vii. 634. 
 
 22. An attorney, employed to commence and prosecute a suit, but not otherwise 
 authorized, has no power to settle that suit, and discharge the defendant from the 
 plaintifTs claim. Dcrwort et ux. v. Loomer, 0. S. i. 566. 
 
 23. Hints to criminal pr.<ictitioners. 0. S. vii. 257. 
 
 24. Practice as to opening address for prisoner. In re John Morgan, 0. S. 
 ii. 119. 
 
 25. The legal profession in England and America, the subject discussed. N. 
 S. X. 753. 
 
 26. The relation of counsel and client renders the parties mutually incapable 
 of making any legal contract of hiring and service concerning advocacy in litiga- 
 tion. Kennedy v. Broun et ux., N. S. ii. 357. 
 
 27. Attorney entering bail improperly not necessarily void, but appellant 
 should have reasonable time to enter proper bail. S/iort v. Rudolph, 0. S. ii. 
 119. 
 
 28. Attorney and solicitor, compromise of client's action in court in his pre- 
 sence, held binding. Chambers v. Mason, 0. S. viii. 251. But see Swlnfenw 
 Swinfen, 0. S. viii. 252. 
 
 2D. Liable for compromising suit against direction of his client. Fray v. 
 Vnw'e-:. O. S. viii, 251. 
 
 30. When attorneys as partners recover a judgment, and after dissolution one 
 collects and fails to pay it over, the other is liable to an action for the money. 
 Bryant v. Hawkins, N. S. x. 746. 
 
 31. Power of attorney to give directions to sheriff not admissible to prove that 
 the attorney gave such directions in a particular case. Iline v. Pomeroy, N. S. 
 vii. 697. 
 
 32. What evidence of priest and attorney admissible in cases of marriage and 
 legitimacy. Blackburn v. Crawfords, N. S. v. 510. 
 
 33. Quaire? If an attorney can assign a judgment after payment, he cannot 
 assign it to one who pays on compulsion, in derogation of his client's rights, 
 d Cou's Appeal, N. S. iv. 315. 
 
 34. A general power of attorney to transfer bank stock, as collateral security 
 for a debt, executed with a blank for the name of the transferee, is made specific 
 by the attorney inserting a particular name, and he cannot afterwards qrase that 
 name and insert another and transfer the stock to the last inserted. Denny v. 
 Lyon, 0. S. ix. 626. 
 
 35. When mandamus will not be issued directing restoration of an attorney 
 removed from rolls without previous written charge of misconduct or process. 
 Randall v. Petitioner, N. S. vi. 189. 
 
 36. Where an attorney has notice of a trust, the law will presume the notice 
 was communicated to the client, and if this knowledge comes to the attorney or 
 agent while acting in another and different transaction, the client and principal 
 will be affected with notice. Abell v. Howe, N. S. xi. 144. 
 
 II. Compensation and Fees op Attoknet, and heeein of his lien on the 
 Funds and Papers op his Client in his hands. 
 
 37. Where an attorney had been employed by the father of an infant to bring 
 an action for a personal injury to the infant, on the understanding that in flie 
 event of his recovering damages he would not charge extra cost, and he did re- 
 
ATTOKNEY. 79 
 
 cover damagES, it was held, the infant, by his father, could sue the attorney for 
 the damages, and the attorney eouM not detain any part for extra costs, even 
 although, through defect in.plaintiff's evidence in the ori>;innl action, and other 
 circumstances, such costs had turned out greater in amount than could have been 
 expected. Collins v. Brook, 0. S. vii. 566. 
 
 38. In a power of attorney constituting an ordinary agency to enforce settle- 
 ment of an administrator's account, and to collect any moneys or property that 
 might belong to grantor, a clause allowing the attorneys to have for their ser- 
 vices one-half of the net proceeds of what they might recover or receive, does 
 not render the power irrevocable. Ilarthij ^ Alorris's Appeal, N. S. vii. 106; 
 and see Blachstone v. Buttermore, N. S. vii. 108. 
 
 39. Whero plaintiff's attorney is to be paid out of the proceeds of a judgment 
 by agreement with his client, a settlement by the parties to the suit will not bo 
 held fraudulent, in the absence of proof of a fraudulent intent on the part of 
 defendant. Courtnei/ v. McGavock, N. S. ix. 119. 
 
 40. Has no lien for his services before judgment, where the action is for un- 
 liquidated damages. Id. 
 
 41. Attorneys, solicitors, and counsel have a lien upon property recovered by 
 their services. Hunt v. ilcClanahan, N. S. x. 193. 
 
 42. While the suit is pending, the client cannot dispose of the subject-matter 
 in suit. Id. 
 
 43. An attorney or solicitor, who is also counsel in a cause, has a lien on 
 moneys collected therein for his fees and disbursements in the cause, and in any 
 suit or proceeding brought to recover other moneys covered by the same retainer. 
 State, of Texas v. White, N. S. x. 232. 
 
 44. If the attorney is guilty of no bad faith or improper conduct, and claims 
 to have a fair set-off against his client, which the latter refuses to allow, a motion 
 to pay into court the moneys collected will not bo granted, but the parties will 
 be left to their action. Id. 
 
 45. Effect of demand by an attorney, of a certain sum as compensation, upon 
 recovery of greater amount. Miller v. Beal, N. S. vi. 713. 
 
 46. Right to sue for services in America — discussed in note to Kennedy v. 
 Brovn et ux., N. S. ii. 372. 
 
 47. The general lien of the attorney extends to all papers which ho holds in a 
 professional capacity. Like other liens, it depends upon possession of some in- 
 strument belonging to the client, or of a sum of money, or other property to 
 which he is entitled. Note to Carpenter v. Sixth Avenue Railroad Co., N. S, i. 419. 
 
 48. In Pennsylvania the attorney is deemed to have a right to defalcate or de- 
 duct rather than a lien. Id. 420. 
 
 49. If the papers be delivered for a specific purpose, no lien can be created 
 beyond that purpose ; as if deeds are delivered to the attorney, in order that he 
 may exhibit them to another. Id. 
 
 50. Like the lien of a mechanic, it depends upon possession, and copfcrs no 
 right in the property, but only a right to retain it until the claim is satisfied. Id. 
 
 51 Attorneys have no lien in Missouri, nor in Indiana, nor in Massachusetts 
 or Maine at common law. In these two latter states it exists by statute. There 
 is now no lien in C.-ilifornia, and the decisions in Pennsylvania are apparently 
 conflicting. Id. 423. 
 
 52. A solicitor has no lien for his costs upon real estate recovered in eject- 
 ments ; such costs are not similar to those due for recovering fund which is in 
 court. Shaw v. Ncale, O. S. iv. 127. 
 
 53 A retainer of an attorney is a sufficient consideration to support a written 
 promise to pay such attorney a debt duo him from another. Fullam v. Adams, 
 N. S iv 460. 
 
 54. Wife's separate estate is liable for services of attorneys in suits instituted 
 upon accounts growing out of her separate business, conducted by her huslinnd ' 
 as agent, and for the purpose of benefiting such estate. Owen v. Cawley, N. S. 
 iv. 123. 
 
 55. An attorney at law, guardian of minors, can lawfully charge his wards 
 for professional services, in conducting litigation for their benefit. David Muni- 
 ma's Account, 0. S. V. 489. 
 
 56. A settlement privately effected between the parties with the design of pre- 
 
■? 1 
 
 80 ATTOENEY. 
 
 venting the nttorncy in the cause from obtaining his costs, will not be recopnised 
 by the court ; but the attorney, on application to the court, will be allowed to go 
 on and collect the costs in the action, that he may thereby secure himself. Mas- 
 quin V. Knickerbocker Stafje Co.^ 0\ S. ix. 696. 
 
 57. A collusive settlement of an action, by the parties, to deprive an attorney 
 of his costs, made after a notice from the attorney, of his claim, to the defend- 
 ant, will not bo allowed to prejudice the attorney's rijiht to enforce payment 
 of his taxable costs. Carpenter v. Sixth Avenue Railroad Co., N. S. i. 410. 
 
 58. His claim for taxable costs will be protected against a collusive settlement 
 in an action upon a tort merely personal, as well as in an action upon contract ; 
 and as well against a settlement made before trial as after judgment. Id. 
 
 59. But an attorney, by an agreement between him and his client, Ihatbesii^cs 
 taxable costs, he shall receive as a compensation for his services a sum equal to 
 one-third of the sum recovered, will not acquire any right in the subject-matter 
 of such an action, or control over it, which will affect the power of the plaintiff 
 to settle and release the claim for damages before a trial has been had. Jd. 
 
 60. The reported cases in regard to an attorney's lien, or right to be compen- 
 sated for his costs, classified and considered. Jd. 
 
 61. Act of Limitations runs against claim for professional services, though the 
 relation of client and attorney continues as to other matters. Hale's Ex'rs v. 
 Ard, N. S. iv. 6-38. 
 
 62. Where a written contract between a county and an individual shows upon 
 its face that it was made by the county for the professional services of the in- 
 dividual as an attorney and counsellor at law, which services are such as the law 
 requires to be performed by the county attorney, such contract is jirind facie 
 void. Clovgh v. Hart, N. S. xi. 95. 
 
 63. '\yhere a written contract, between a city of the first class and an indi- 
 vidual, shows upon its face that it was made by the city for the professional ser- 
 vices of the individual, as attorney and counsellor at law, which services are 
 such as the law requires to be performed by the city attorney, such contract is 
 primd facie void. Id. 
 
 64. Where the petition of the plaintiff sets forth such a contract as a founda- 
 tion for a decree for the specific performance of such contract, but docs not set 
 forth any facts wliich would show that such contract is not void, such petition 
 does not state facts sufficient to constitute a cause of action. Id. 
 
 65. Lien of attorney on judgment will be enforced according to law of state 
 where it attached. Citizens' National Bank v. Culver and Trustees, N. S. xiv, 
 642. 
 
 66. In Vermont an attorney has a lien on a judgment for all his just claims 
 in the suit. Id. . 
 
 67. Such lien cannot be defeated by an attachment of the debt. Id. 
 
 68. In an action on an injunction bond plaintiff cannot recover for attorney's 
 fees in the original case. Riddle et al. \. Cheadle, N. S. xiv. 752. 
 
 69. The plaintiff's attornej-s are not entitled to have a judgment entered in 
 favor of the plaintiff against the defendant, for their benefit, when a default has 
 been previously entered, and the parties have then made a bond fide settlement. 
 Hooper V. Welcli, N. S. xi. 192. 
 
 70. An attorney, who, by agreement with his client, is to receive a portion of 
 the amount recovered, is not a necessary party plaintiff. McDonald v. Chicago &• 
 N. W. Railroad Co., N. S. ix. 10. 
 
 71. Attorneys in whose hands a mortgage is placed by a bank for collection 
 acquire a lien thereon for services which is not defeated by the subsequent ap- 
 pointment of a receiver. Bowling Green Savings Bank v. Todd et al., N. S. xii. 
 593. 
 
 72. Extent of retainer to defend suit. Smith v. Dougherty, N. S. v. 504. 
 
 73. Party is liable for services of senior counsel. Brigham v. Foster, N. S. 
 iii. 698. 
 
 74. Attorney has a lien on papers of his client for his bill for services. Steel- 
 man V. Collet, 0. S. iii. 128. 
 
 75. Statute of Limitations does not begin to run against claim for services 
 until entry of judgment. Eliot v. Lawlon, N. S. iii. 566. 
 
ATTORNEY. 81 
 
 III. Duties, J^ights and Liabilities of Attoenets, and iiekei!! or thkir 
 EIGHT TO pukohask Client's Claim, and of the power of the Coukt to 
 
 STKIKK names OF ATTORNEYS FROM THE RoLL AND TO PUNISH FOR CONTEMPT. 
 
 76. An attorney who compromises an action against the express direction of 
 his client is liable to an action for damages at the suit of his client. The client 
 and not the attorney is doininus litis. Fraij v. Voicles, 0. S. vii. 703. 
 
 77. Error of judgment is not negligence for which ho will be liable. Crosbic 
 T. Murphy, 0. S. viii. 251. 
 
 78. An attorney who receives his client's deed to keep for him and loses it is 
 primd facie liable to an action of detinue on the part of his client. Reeve v. 
 Palmer, O. S. vii. 567. 
 
 I . Refusing to state his authority is estopped from denying that he acted on 
 his own responsibility. I^ord v. Wtlliams, N. S. ii. 249. 
 
 SO. Liability of, employed to collect a note. Braine v. Spaulding, N. S. vi. 
 630. 
 
 81. In purchasing a claim from his client must use the utmost good faith. 
 Dunn T. Record, N. S. xiv. 391. 
 
 82. It is not negligence on the part of an attorney to accept as a correct ex- 
 position of the law a decision of the Supreme Court of his state. Marsh v. 
 
 W/iitinore, N. S. xiv. 519. 
 
 83. The rule which prohibits an attorney from acquiring an interest in a thing, 
 about the title to which he has been professionally consulted, or with regard to 
 which he has conducted a suit, does not terminate with the relation of counsel 
 and client, but is perpetual in its character and follows the title of the client into 
 whosoever hands it passes ; and any purchase of adverse claims, of encum- 
 brances or the like, by him, will be in trust for the person holding that title. 
 Hunrg \. Raiman, 0. S. iv. 382. 
 
 84. After verdict and before judgment plaintiff in ejectment assigned the sub- 
 ject-matter of the suit to his attorney in the suit, as a security for money ad- 
 vanced by the attorney for carrying on the suit and other purposes, and for the 
 amount due to him for his professional services. Assignment not void as against 
 public policy, or by reason of any of the statutes against champerty and main- 
 tenance, being onlv a security and not an absolute purchase. Anderson v. Rad- 
 cliffe, 0. S. vii. 508. 
 
 83. Attorney and client — dealings between — constructive fraud. See Saveri/ 
 T. Kitig, 0. S'. v. 506, and Greenfield v. Bates, O. S. v. 507. 
 
 86. Taking benefit under his client's will. Hlndson-v. Wetherill, 0. S.m.l'i^. 
 
 87. Attorney and client— gift by will — subject discussed. 0. S. vi. 641. 
 
 88. Sale by client to attorney — subject discussed. 0. S. iv. 316. 
 
 89. The primary consideration which induces the court to admit a person to 
 practice as an attorney, who has not served the full time and complied with all 
 the requisites, is the interest of clients. In re McNally, 0. S. ii. 637. , 
 
 90. Where there has been the slightest suppression on the part of an applicant 
 to be admitted an attorney, of any material fact which should have been dis- 
 closed, if the court are not satisfied it was unintentional, they will rescind the 
 rule for his admission, even though his motive should not appear to be an im- 
 proper one, or that it was for his own advantage. Id. 
 
 91. The court will not strike an attorney off the roll for acting without autho- 
 rity in conducting the prosecution of a prisoner for felony. In re JJavies, 0. S. 
 ii. 637. 
 
 92. Non-payment of money pursuant to order of judge. The mere non-pay- 
 ment of money by an attorney, pursuant to an order and rule of court, is no 
 ground for striking him off the roll. Guilford v. Sims, S. ii. 637. 
 
 93. An assignment of verdict and judgment to be entered upon it to the attor- 
 ney is valid, and will give him a preference in equity to defendants claiming to 
 set off a previous judgment against the assignor. Mackey v. Mackey, N. S. 
 iv. 437. 
 
 94. Act of Congress, January 2Uh 1865, prescribing oath before admission to 
 bar of United States courts,' unconstitutional. In re .John Baxter, N. S. r. 159. 
 
 95. Fraud by attorney's clerk— attorney held liable to pay costs of setting 
 aside proceedings. Dunkley v. Farris, 0. S, ii. 63. 
 
 96. An attorney, employed or consulted as such, to draw a deed or an appli- 
 cation for an original title to land, is in the line of his profession, and is pre- 
 
 6 
 
82 ATTORNEY. 
 
 clacled from bnving in, for his own use, any outstanding title. Smith, v. Brother, 
 line, N. S. .^.. 50. 
 
 97. The relation between him and his client is confidential, and whether he 
 acts upon information derived from him. or from any other source, he is affected 
 with a trust. Id. 
 
 98. But where an attorney was consulted and drew an application for certain 
 land on which the client's 'improvements were supposed to be, and it appeared 
 afterwards by a more accurate survey that the improvements were on a, different 
 tract, the subsequent purchase of the latter tract by the attorney in ignorance of 
 the fact that his client's improvements wore on it, will not bo held to be in trust. 
 Id. 
 
 99. The Act of Congress of January 24th 1865, prescribing an oath to be 
 taken by attorneys, is unconstitutional as applied to attorneys of the Supreme 
 Court of the United States, who were admitted before the passage of the act. 
 Ex parte Garland, N. S. vi. 284. 
 
 ino. Even if the act were constitutional, the oath could not be exacted from 
 an attorney who has been pardoned by the President for all offences arising from 
 participation in the rebellion. Id. 
 
 101. By the minority of the court, that the Act of Congress of January 24th 
 1865, prescribing an oath to be taken by attorneys, is not unconstitutional, nor 
 is it vbid as being either a bill of attainder or an ex j>o<t facto law, its purpose 
 being to require loyalty as one of the qualfiiiatinns of those Who practise law in 
 the national courts, and not to impose a punishment for past acts of disloyalty. 
 Ex parte Garland; Cummhiffs v. State, Dissenting opinion, N. S. vi. 394. 
 
 102. The. provisions of tbe national constitution forbidding Congress and the 
 states from passing bills of attainder and ex post facto laws, discussed, illustrated 
 and applied, by Miller, J. Id. 
 
 103: Status and rights of. Ex parte Law — Note to Ex parte Garland, N. S. 
 vi. 410. 
 
 104. Act of Congress prescribing test oath, unconstitutional. Id. 
 
 105. Constitutionality of act of >West Virginia, prescribing oath for practising 
 attorneys. Ex parte Hunter — Note to £3; parte Garland, N. S. vi. 410. 
 
 106. An attorney who forecloses a mortgage for his client by advertisement 
 under the statute of New York, and on the sale, receives the amounts only which 
 he pays over, the amount due to his client, cannot be held liable to the person 
 having the oldest lien on the surplus. The action in such case must be brought 
 against the client and not against the attorney. Costigan v. Newland, 0. S. i. 30. 
 
 107. A bill of exchange on which an action had been brought, having been 
 burnt by the negligence of the clerk of the plaintiff's attorney, the plaintiffs are 
 not entitled, on taxation, to the costs of producing two witnesses at the trial to 
 prove the destruction of the bill, for the purpose of rendering admissible secondary 
 evidence of its contents. Mathews v. Llveseij, 0. S. iv. 123. 
 
 108. The provisions of tbe statute for the suspension of an attorney being 
 penal, must be strictly construed. Klingensmith v. Kepler, N. S. xiii. 192. 
 
 109. An attorney cannot be suspended from practice by the default of his part- 
 ner. Id. 
 
 UO. The power to punish for contempts is inherent in all courts ; its existence 
 is essential to the preservation of order in judicial proceedings, and to the en- 
 forcement of the judgments, orders and writs of the courts, and consequently to 
 the due administration of justice. The moment the courts of the United States 
 ■were called into existence and invested with jurisdiction over any subject, they be- 
 came possessed of this power. Exparte Robinson, N, S. xiii. 435. 
 
 Ill The Act of Congress of March 2d 1831, entitled' " an act declaratory 
 of the law concerning contempts of court," limits the power of the Circuit and 
 District Courts of the United States to three classes of cases : 1st, where there 
 has been misbehavior of a person in the presence of the courts, or so near thereto 
 as to obstruct the administration of justice ; 2d, where there has been misbehavior 
 of any officer of the courts in his official transactions ; and 3d, where there has 
 teen disobedience or resistance by any officer, party, juror, witness or other 
 person, to any lawful writ, process, order, rule, decree or command of the courts. 
 Id. 
 
 112. The 17th sect, of the Judiciary Act of 1789, in prescribing fine or im- 
 iprisonment as the punishment which may be inflicted by the courts of the United 
 States for iContCHipts, operates as a limitation upon the manner in which their 
 
ATTORNEY. 83 
 
 power in this respect may be exercised, and is a negation of all other modes of 
 punishment. Ex parte liobinson, 0. S. xiii. 435. 
 
 113. The power to disbar an attorney is possessed by all courts which have 
 authority to admit attorneys to practice. But the power can only be exercised 
 where there has been such conduct on the part of the party complained of as 
 shows him to be unfit to be a member of the profession ; and before judgment 
 disbarring him can be rendered he should have notice of the grounds of com- 
 plaint against him and ample opportunity of explanation and defence. Id. 
 
 114. Mavdamui is the appropriate remedy to restore an attorney disbarred 
 whsre the court below has exceeded its jurisdiction in the matter. Id. 
 
 115. Communications between an attorney who drew a deed and the grantees 
 therein as to what took place are privileged. Rogprs v. Lijon, N. S. xii. 593. 
 
 116. A husband is not liable to an attorney for professional services rendered 
 his wife in defending a libel for divorce by the husband upon the ground of her 
 adultery, even though such defence may prove successful. Ray v. Addin, N. S. 
 xi. 59." 
 
 117. It is a well settled rule, that the attorney of a party cannot be compelled 
 to discover papers delivered, or communications made to him, or letters or entries 
 made by him in that capacity, but is bound to withhold them. Held, that this 
 principle extends to every communication made by a client to his attorney, when 
 consulted upon the subject of his rights and liabilities. Parkhuriite v. McGruw, 
 O. S. i. 700. 
 
 118. A party acting as counsel for a fugitive slave, is protected from the con- 
 sequence of his acts, so far as they are within the proper limits of his profes- 
 sional duty. Id. 
 
 119. In an action against an attorney for neglect to collect, see Rhines's Adm''r.s 
 V. Emns, N. S. x. 794. 
 
 120. An attorney issuing an execution is liable to the sheriff for his poundage 
 thereon. Campbell v. Collison, N. S. xiii. 198. 
 
 121. Judgment cannot be impeached in action upon it for want of authority 
 of attorney. Finneran v. Leonard, N. S. iii. 506. 
 
 122. Attorneys, privileges of, in producing documents, discussed. 0. S. i. 
 517. 
 
 123. There is no reason why an attorney may not plead set-off' to a suit by his 
 client. Noble v. Lcary, N. S. xii. 530. , 
 
 124. The Supreme Court of the District of Columbia has an inherent right to 
 regulate the terms upon which attorneys shall be admitted to its bar. It had, 
 therefore, the right to prescribe as a qualification for admission to its bar, the 
 taking of an oath similar to that established by the Act of Congress of July 2d 
 1862, for officers of the United States. Ex parte Magruder, N. S. vi. 292. 
 
 125. An Act of the Legislature authorizing the city of Louisville to compel 
 every attorney practising therein to pay license of ten dollars per annum, and 
 subjecting them to a fine in case of refusal, is unconstitutional and void as to attor- 
 neys admitted to practice before the passage of the act. Louisville v. Brown, N. 
 S. xii. 721. 
 
 126. An attorney and counsellor at law is vested with an official right which 
 cannot be trammelled in any way except for official and professional misconduct. 
 Id. 
 
 127. An agreement made in the presence of an attorney between his client 
 and a third person, is not a privileged communication. Carr v. Wdd, N. S. viii. 
 244. 
 
 128. The Act of 1868, c. 2, s. 5, requiring the courts to administer the abjura- 
 tion of the Ku-Klux to "all officers," did not apply to attorneys. Ingcrsoll v. 
 Howard, N. S. x. 193. 
 
 129. The court has no jurisdiction to strike an attorney from the roll for an 
 act not connected with an attorney's duties. D'cken's Case, N. S. xi. 123. 
 
 130. An atttempt to make an opposing attorney drunk in order to get an ad- 
 vantage of him, is good ground to strike off. Id. 
 
 131. The decision of the Supreme Court of the United States, in Ex parte Gar- 
 land, that the Act of Congress of January 24th 1855, is unconstitutional, does 
 not entitle a person to admission to the bar of the Supreme Court of the District 
 of Columbia without taking the oath prescribed by the rules of the court. Ex 
 parte Magruder, N. S. vi. 292. 
 
 132. An attorney's license is primd facie evidence of his authority to appear 
 
84 ATTORNEY— AUCTION. 
 
 for Bny one. but if denied he must furnish evidence of his retainer. Clark v. 
 WiUelt, N. S. viii. 501. 
 
 133. A party employing an attorney has a right to his services, and to confide 
 all the facts of the litigation to him, without the danger of having those facts 
 used for his disadvantage. Davis v. Smith, N. S. xi. 51. 
 
 134. A court has power outside of the common law doctrine of contempt to dis- 
 bar an attorney for acts calculated and intended to injure the court. Ex parte 
 Bigys, N. S. ix. 574. 
 
 135. A court will not interfere by summary proceedings with an attorney who 
 is settling the costs, unless it appears that he is acting fraudulently. Barker's 
 Case, N. S. ix. 711. 
 
 136. One who practises in justices' courts, though not a licensed attorney, may 
 be within the rules applicable to attorneys. Freelove v. Coh, N. S. iii. 638. 
 
 137. In Wisconsin no attorney can be surety. Cothren v. Connaughten, N. S, 
 ix. 119. 
 
 IV. Kevocation of Powek. 
 
 138. An authority delegated to an attorney from three trustees, having a power 
 coupled with an interest, and from the survivors and survivor of them to sell and 
 convey lands, is not revoked by the death of one of the trustees. Wilson v. 
 Stewart, O. S. vi. 372. 
 
 139. Such delegation being joint and several, the attorney is "invested with 
 the full powers of the surviving trustees, so as to pass both the beneficial and the 
 legal estates. Id. 
 
 140. A power which includes a future interest is effectual to pass a subsequently 
 acquired title. Jd. 
 
 141. A party has a general right to change his attorney, and a rule for that 
 purpose will be granted, leaving to the attorney the advantage of any lien he 
 may have on papers or moneys in his hands as security for his fees and dis- 
 bursements. State, of Texas v. White, N. S. x. 232. 
 
 V. Acting as Witnesses. 
 
 142. Competency of attorney as witness for his client. Braine v. Spauldinq, 
 N. S. vi. 630. 
 
 143. An attorney is not a comptent witness to testify for or against his client, 
 as to any matter or thing, the knowledge of which he derived from his client or 
 acquired during the existence of the relation Of client and attorney in the suit 
 in which he is engaged. Riley v. Johnson, 0. S. ii. 379. 
 
 144. Is not incompetent as a witness in a ti-ial for perjury because he acted as 
 attorney against the person at the trial. Reg. v. Morgan, O. S. ii. 118. 
 
 145. Whether an attorney's books are admissible, gucere? Hale's Ex'rs v. 
 Ard's Ex'rs, N. S. iv. 638. 
 
 146. The deposition of witness in this case ought to be excluded on the ground 
 that it violates professional confidence reposed by a client in his attorney. Bark- 
 hurste v. McGraw, O. S. i. 700. 
 
 147. Attorney, privilege of, may in his discretion refuse to produce a document 
 or answer a question in regard to it, on the ground that it has been intrusted to 
 him by his client. Volant v. Soijer, O. S. ii. 60. 
 
 148. However inconvenient the course may prove in practice, there is nothing 
 in the present state of the law to prevent plaintiff acting both as advocate and 
 witness in his own cause. It is for tlie legislature to interfere, if the adoption 
 of such practice renders an alteration in the law requisite. Cobbett v. Hudson, 
 0. S. i. .306. 
 
 ATTORNEY GENERAL. 
 
 Office and duties of; opinion of Hon. C. Gushing, as to. O. S. v. 65. 
 ATTORNEY GENERAL OF THE UNITED STATES. 
 
 Opinion of, as to purchase of belligerent ships by citizens of United States. 
 0. S. lii. 577. 
 
 ATTORNEY GENERAL OF PENNSYLVANIA. 
 
 Opinion of, upon the right of the state of New York to divert the waters of 
 Chemung river. 0. S. iv. 385. 
 
 AUCTION. 
 
 V^'^^T'^i'^^* ^''^''" '^ °^^ ^^° ^^^^^ "^s highest bid in good faith. Grav 
 V. Viers, N. S. X. 471. " 
 
AUCTION. 85 
 
 2. Tho sum stipulated at auction as forfeited, if the purchaser does not comply 
 with his contract, cannot bo recovered at law or equity. Bullock v. Adams's 
 EjcW, N. S. ix. 383. 
 
 3. The employment of puffers is a fraud upon honest bidders at auction. Nat. 
 Bank of the Metropolis v. Spi-ague, N. S. ix. 383. 
 
 4. It is illegal for persons intending to purchase at auction to combine not to 
 Ijid against each other. Id. 
 
 5. Agreement to bid is valid. Wicker v. Hoppock, N. S. vii. 376. 
 
 6. Contracts for the purchase and sale of goods or lands at public auction are 
 contracts founded upon mutual promises, and consequently they cannot be re- 
 garded as perfected and binding unless they have received the consent of the par- 
 ties. Blossom V. Railroad Co., N. S. V. 218. 
 
 7. Biddings at an auction are mere offers, which may to retracted at any time 
 before the hammer is down, or until the bid has in some way been accepted by 
 the seller. Id. 
 
 8. Auction sales under a decretal order are .ilvvays regarded as under the 
 control of the court, and subject to the power of the court to set the sale aside or 
 open it, if the circumstances of the case require it, before it has been confirmed. 
 Id. 
 
 9. Such sales are usually conducted under the advice of the solicitor of tho 
 complainants ; but his instructions, if oppressive to the respondent or unrea- 
 sonable, cannot control the officer, because the officer has duties to perform to 
 the respondent as well as to the complainant, and to the court as well as to the 
 parties. Id. 
 
 10. Every such officer possesses the power, for good cause shown, to adjourn 
 the sale ; and, if the interests of the parties require it, he is bound to exercise a 
 sound discretion upon the subject. Id. 
 
 11. The mortgagee of certain premises instructed an auctioneer to offer them 
 on a specified day by public auction for peremptory sale. A handbill was there- 
 upon issued by the auctioneer, announcing the sale " by direction of the mort- 
 gagee, " and also stating that further particulars might be obtained "from Mr. 
 Hustwick, solicitor, or tho auctioneer." At the sale tho plaintiff made the high- 
 est bid, with the exception of Hustwick, wlio, acting for the vendor, outbid the 
 plaintiff and bought in the property. In an action brought against the auctioneer 
 for refusing to sell the premises peremptorily as advertised : Held, that he was 
 not liable. Mainprice v. Wcstley, N. S. v. 304. 
 
 12. Liability of auctioneer, advertising peremptory sale, discussed. Id. Note. 
 
 13. At a sale of real estate by auction the vendors are not authorized in em- 
 ploying two persons to bid against each other, although there is a reserved price ; 
 and such persons do not in fact bid beyond that price. Mortimer v. Bell, N. S. 
 v. 310. 
 
 14. Semble, the right to fix a reserved price ought to be stipulated for and 
 expressly notified. Id. 
 
 l.T. The rule said to exist in equity, allowing one puffer to be employed, 
 without notice, to prevent a sale at an undervalue, is abstractly less sound than 
 the rule at law which declares such employment to be fraudulent ; and rests 
 only on the authority of decisions in lower branches of the court. Id. 
 
 16. Although at a sale by auction the auctioneer may, after a bidding has 
 been accepted, become the agent of the bidder for the purpose of signing a mem- 
 orandum of the agreement, he is not an agent for the bidder at all till tho 
 bidding is accepted; and until tho hammer is knocked down, both tho bidder 
 and the vendor are free, and may retract if they choose to do so. Warlow v. 
 Harrison, 0. S. vii. 504. 
 
 17. In sale of horse at auction there is no warranty that he is not affected 
 with glanders. Sill v. Balls, 0. S. vi. 162. 
 
 18. Where a sale by auction is announced as " positive " it is fraud for vendor 
 to employ others to keep up the price by bidding. Walsh v. Barton, N. S, xiii. 
 647. 
 
 19. A declaration alleged that the defendant, being possessed of a horse which 
 he knew to be afflicted with glanders, caused it to be sold by auction at a horse 
 repository ; that the plaintiff believing it to be in a healthy state purchased it ; 
 that bv reason of the disease it was worthless to him and he was put to expense 
 in having a veterinary surgeon to cxnmino it; and in consequence of its being 
 put into a stable with another horse, that horse became infected and died, and the 
 
86 AUCTION— AtTTHOEITY. 
 
 plaintiff was put to expense in endeavoring to enre it : Hdd, that this declaration 
 disclosed no ground of action either at common law or under the 16 and 17 
 Vict. e. 62. Hill\. Balls, 0. S. vi. 162. 
 
 20. Bids for several articles at an auction sale, one contract. Delivery and 
 acceptance of part of the goods will take the entire contract from the operation 
 of the statute. Jennessv. Wendell, N. S. xii. 57. 
 
 21. The sale of all property, hy executors and administrators, except annual 
 crops actually carried to market, must be at public auction. Neal v. Patton, 
 K S. ix. 646. 
 
 22. A sale by auction "without reserve," means that neither the vendor nor 
 any person on his behalf, shall bid at the auction, and that the property shall be 
 sold to the highest bidder, whether the sum bid is equivalent to the real value or 
 not. Warlowy. Harrison, O. S. viii. 211. 
 
 23. The highest bondf.de bidder at such an auction may sue the auctioneer, as 
 upon a contract that the sale shall be without reserve, if he knocks down the 
 hammer to the subsequent bidding of the owner ; and it is not material whether 
 the owner or a person on his behalf bids with the knowledge or privity of the 
 auctioneer. Id. 
 
 24. The owner may, at any time before the contract is legally completed, in- 
 terfere and revoke the auctioneer's authority, but he does so at his peril ; and if 
 the auctioneer has contracted any liability in consequence of his employment, 
 and the subsequent revocation or conduct of the owner, he is entitled to be in- 
 demnified. Id. 
 
 25. SemUe, that a bidding by the owner after the last genuine bidding, is not a 
 revocation of the auctioneer's authority. Id. 
 
 26. An auctioneer may bring an action in his own name for the price of goods 
 sold by him as auctioneer, and delivered to the purchaser ; and a plea alleging 
 that the goods were sold by plaintiff as an auctioneer, agent and trustee for K., 
 and that after the sale and before action, defendant paid the said K. the price of 
 the goods, is no answer to the action. Rob'mi,on v. Rutter, 0. S. iv. 123. 
 
 AUDIT AND AUDITOR. 
 
 1. Where a party without probable cause occasions the appointment of an 
 auditor for distribution of fund in court, the expenses of the audit ought to be 
 charged, to him. Larimer \. Bridenthal, 0. S. ii. 121. 
 
 2. Upon a reference in an action for divorce, it is the duty of a referee in such 
 case to find not only the facts as to the adultery, but all other material facts. 
 Myers'v. Myers, N. S. iii. 504. 
 
 Z. Auditor's report in, final, except in case of misconduct. Stewart v. Bomen, 
 N. S. V. 180. 
 
 4. Costs of audit will not be imposed on a trustee acting faithfully and pru- 
 dently. Graver's Appeal, N. S. v. 383. 
 
 UDITA QUERELA. 
 
 A subsequent attaching creditor cannot maintain audita querela, against a prior 
 one, on the ground that the debtor was non-resident, and the judgment was 
 obtained without notice. Essex Mining Co. y. Ballard, N. S. xi. 195. 
 
 UTHENTICATION. 
 
 The record of a judgment obtained in a probate court of Ohio in a proceeding 
 upon habeas corpus, is within the provisions of the Act of Congress gf 26th May 
 1790, which provides for the authentication of records from sister states. In 
 re Walter Hinchman (a minor) v. Morgan Hinchman, 0. S. v. 424. 
 
 AUTHOR. 
 
 ]. Author employed to write articles for periodicals, &c., copyright is in the 
 employer. Sweet v. Benning, 0. S. iii. 684 ; and see Malgaigne'v. Priest, 0. S. 
 iii. 571 ; and see Copyright. 
 
 , 2. The editor of a periodical who has accepted and begun the publication of a 
 literary work, cannot suspend that publication without the consent of the author. 
 Saint Julien v. Douniol, 0. S. i. 46. 
 
 AUTHORITY. 
 
 There is no authority either in the executive or judicial department of the 
 government to allow a claim against the United States, which is prohibited by 
 law. United States v. Charles K. Smith, O. S. v. 268. 
 
AUTREFOIS ACQUIT— BAGGAGE. 87 
 
 AUTREFOIS ACQUIT. 
 
 A person indicted for murder may be found guilty of manslauf,hter, and such 
 findini; amounts to an acquittal of the charge of murder. Brennan v. The People, 
 0. S.'^iii. 635. 
 
 AVERAGE. 
 
 Average contribution by insurer — see Hall v. Janson, 0. S. iii. 700. 
 
 AWARD. See Akbitbatiok. 
 
 1. One article of an award being complete and independent may be enforced 
 by itself, Lamphere v. Cowan, N. S. vii. 185. 
 
 2. An Act of Congress referring a claim to an officer of one of the executive 
 departments to examine and adjust is not such an arbitrament, an award in the 
 technical sense, as to bind the parties like a submission, Gordon v. United States, 
 Is. S. viii. 244. 
 
 3. An award may be recommitted to the referee for the correction of a clerical 
 error, and judgment entered on it when corrected. Yeaton v. Brown, N. S. xii. 
 529. 
 
 4. A submission to arbitration without an award will not operate as a discon- 
 tinuance. Dinsmore v. Ilamon, N. S. ix. 508. 
 
 5. Assumpsit is the proper action to recover damages for non-performance of 
 award. Whitcher v. Whitcher, N. S. xi. 50. 
 
 6. An award that shows on its face that but two out of three arbitrators heard 
 and deliberated, cannot be sustained. Bartolett v. Dixon, N. S. xiii. 389. 
 
 BAGGAGE. 
 
 1. Proof of delivery of baggage-checks to the baggage-master is evidence to 
 show that the company received the baggage. Railway Co. v. Montell, N. S, 
 xii. 532. 
 
 2. In an action against an express company for a trunk, plaintiff may testify 
 as to contents. Adams' Express Co. t. Schlessinger, N. S. xiv. 196. 
 
 3. Express companies cannot sell unclaimed trunks, under the Act of Decem- 
 ber 14th 1863, Pennsylvania, without exposing their contents. Id. 
 
 4. A common carrier may make reasonable regulations as to the place where 
 the baggage of the passenger shall be deposited, and if actual notice of the regu- 
 lation is given to him, or it be shown that the regulation had become, by general 
 usage, so notorious and universal that he must be presumed to have known it, 
 the passenger violating it cannot recover for loss of his baggage. Maclin v. 
 Steamboat, N. S. ix. 239. 
 
 5. A passenger on a steamboat who carries his valise with him to his state-room, 
 does not tliereby undertake the exclusive care of it, so as to relieve the carrier 
 from all liability for it. Id. 
 
 6. AVhere a passenger at a railroad depot, while having his baggage checked, 
 pot into an altercation with the baggage-master and was struck by him with a 
 hatchet, the company were not liable for the injury. Little Miami Railroad Co. 
 ,. Wetmore, N. S. ix. 621. 
 
 7. Railroad company not liable for baggage not called for within twenty-four 
 hours after its arrival at destination. Holdridge v. U. ^ B. Railroad Co., N. S. 
 ix. 637. 
 
 8. Not liable for loss of baggage not claimed by traveller in reasonable time 
 after end of journey. Jones v. Trans, Co., N. S. vii. 634. 
 
 9. Seventeen hours not held a reasonable time under the circumstances. Id. 
 
 10. Fact that journey ended on Sunday, and the law of the stale prohibited 
 work or travelling on that day, did not affect the case. Id. 
 
 11. Agent in charge of depot and freight is proper person of whom to inquire 
 for lost baggage, and his answer is part of res gestce. Curtis v. Railroad Co., 
 N. S. vii. 125. 
 
 12. If passenger at end of his journey leaves his baggage without any arrange- 
 ment, the company isnot liable ; but an arrangement with the baggage-master to 
 take charge of it will bind the company. 7c?. 
 
 13. Evidence that passenger is lame and unable to take personal charge of 
 baggage is admissible to rebut the presumption of negligence from his leaving it 
 with the agent of the company. Id. 
 
 14. Where such a notice stated that the carrier would not be responsible "for 
 an amount exceeding $100 upon any one article," the words "any article" 
 
88 BAGGAGE— BAILMENT. 
 
 mean anv separate article, not a trunk with its contents. Hopkins T. Westcolt, 
 N. S. vii". 533. 
 
 15. Therefoi-e, a traveller who g.ive a single trunk to a carrier and received 
 such a notice was allowed to recover the value of separate ai-ticles amounting to ' 
 $700. Id. 
 
 16. Baggage includes such articles as are usually carried by travellers. Books 
 and even manuscripts may be baggage, according to the circumstances and the 
 business of the traveller. Id. 
 
 17. In this case, a student going to college was allowed to recover the value 
 of manuscripts which were necessary to the prosecution of his studies. Id. 
 
 18. The responsibility of an express company is the same as that of a carrier, 
 and it cannot exempt itself from liability for loss from negligence by an exception 
 in a receipt. Belger v. Dinsmore, N. S. viii. 185, 
 
 19. The holder of a railway passenger ticket is only entitled to passage with 
 such personal baggage as he carries with him at the time. Baggage sent by an 
 after train will be at his risk, and not that of the company. Wilson v. Railway 
 Co., N. S. viii. 398. 
 
 BAIL. 
 
 1 . Proper tribunal to decide what cases are bailable : Note to Lynch v. People, 
 N. S. iv. 733. 
 
 2. Bail is never allowed in capital cases where the proof is evident and the 
 presumption great : In re Bennoit, 1 La. 142, cited and approved. Street v. 
 Slate, N. S. ix. 750. 
 
 3. The jurisdiction of Supreme Court to grant bail in cases brought up on writ 
 of error is purely revisory and correctional. The judgment below must be re- 
 
 ' garded as presumptively right till error is shown. Id. 
 
 4. Bail in misdemeanor — sheriff cannot take bail — such bail-bond void. Keller 
 V. Commonweallh, 0. S. i. 248. 
 
 5. Court refused to bail the seconds in a duel where one of the principals was 
 killed. Eey. v. Baronet, 0. S. i. 3(I6. 
 
 6. Bail on charge of murder ; where coroner's jury acquit, court granted a rule 
 to admit to bail. R. v. Blackburn, 0. S. i. 373. 
 
 7. "I become bail absolute in this case, conditioned for the payment of all 
 rents that may a£crue in case that the said judgment shall be affirmed, and also 
 for all rent that has accrued, or may accrue, to the time of final judgment," 
 held good. Bardy v. Watts, 0. S. ii. 1 19. 
 
 BAIL-BOND. 
 
 A bail-bond taken by the sheriff which omits the name of the security in 
 the body of it, although signed and sealed by him, is a void bond and cannot be 
 enforced. Adams v. IJedgpeth, 0. S. vii. 60. 
 
 BAILMENT. 
 
 1. A receipt for an article to be returned in three months, with condition that 
 ' it shall be a sale on payment of certain price, is a bailment. Vunlap v, Gleason, 
 
 N. S. vii. 185. 
 
 2. Bailee may limit time, by contract, for the delivery of the goods. Lance 
 v. Griner, N. S. vii. 56. 
 
 3. Bailee for hire may recover injury to goods. Bliss v. Shaub, N. S. vii. 57. 
 
 4. Bailment for sole benefit of bailor involves liability of bailee only for gross 
 negligence. Spooner v. Matton, N. S. vii. 696. 
 
 5. Soldier giving pocket-book to take care of. Id. 
 
 C. A bailee, without reward, of certain bonds deposited for safe keeping, will be 
 liable for the loss, unless he uses such care as a person of common prudence in 
 his situation and business usually bestows in the custody of similar property be- 
 longing to himself. Maury v. Coyle, N. S. xi. 52, 
 
 7. A banker receiving a package of money as a .special deposit, without com- 
 pensation, is bound only for slight care, and responsible only for gross negligence. 
 Hale V. Rawallie, N. S. xi, 52. 
 
 8. The pledgee of bonds delivered ns security for a loan Is liable to an action 
 for conversion if he refuses to deliver them after payment of the loan. Roberts 
 v. Berdell, N. S. xi. 262. 
 
 9. The damages would be the value of the bonds, with interest. Id. 
 
 10. The Statute of Limitations does not begin to run until demand and refusal. 
 Id. 
 
BAILMENT. 89 
 
 11. A party will not he liable for over-driving a hired horse if at the time of 
 hiring the owner at;reed that he should perform the work for which he was hired. 
 Eugales V. Fay, N S. xiv. 260. 
 
 12. Statements made by the driver of the horse the day after the journey are 
 not admissible in evidence against the party hiring. Id. 
 
 13. Relinquishment of possession is abandonment of lien, unless consistent 
 with the contract. Hobinxon v. Larrahce, N. S. xiv. 453. 
 
 14. The forfeiture of the lien is not waived by resumption of custody. Id. 
 
 15. A bailee who takes an article to repair is only liable for the want of 
 ordinary care. Biissel. v, Koihtcr, N. S. xiv. 579. 
 
 16. He is not liable if the article is destroyed by fire. Id. 
 
 17. Where a bailee of goods absolutely refuses to deliver them to the owner on 
 demand, or assumes to be himself the owner, or interposes unreasonable ob- 
 jections to delivering them, or exhibits bad faith in regard to the transaction, a 
 conversion of the property may be inferred. Carrol v. Mix, N. S. viii. 59. 
 
 18. An agent cannot pledge or mortgage goods to secure an advance on his 
 own account. First National Bank of Macon v. Nelson, N. S. viii. 309. 
 
 19. Warehousemen and forwarders are responsible for the custody and storage 
 of goods in their charge, and are bound to use ordinary care and diligence in 
 their protection. B. ^ 0. Railroad Co. v. Schumacher, N. S. viii. 699. 
 
 20. Gross negligence is a term properly used to describe the sort of negligence 
 for which a gratuitous bailee is responsible. Phillips v. Clark, 0. S. viii. 252. 
 
 21. A verbal promise to return a thing hired in good order, and at specified 
 time, does not import a contract of insurance against loss. Field v. Bracket, N. 
 S. ix. 120. 
 
 22. Where there is no count on a contract to keep as bailee, it is error to 
 charge that defendant is liable, unless he took such care of the logs as a prudent 
 man would of his property. Satlerlee v. Mellick, N. S. xiv. 579. 
 
 23. Gratuitous bailee, liability. The unauthorized delivery of a thin'g bailed by 
 the mandatory to a stranger, Avill make the mandatory responsible for the loss on 
 the ground of the violation of his trust. Colyar v. Taylor, 0. S. ix. 428. 
 
 24. Such unauthorized delivery of the property by the mandatory to a third 
 person may be treated as a conversion by the bailor. Id. 
 
 25. Where A., the bailor, intrusted a sum of money to B., the bailee, who 
 gratuitously undertook to carry it for A., and then handed it over to C, a third 
 person, without the knowledge or assent of A., C. undertaking the bailment 
 also without reward, and while engaged in such duty lost the money by having 
 his pocket picked, it was held that B. was liable to A. Id. 
 
 26. A bailee without hire is responsible for gross negligence. "Gross negli- 
 gence " defined. Id. 
 
 27. Any person may pledge his personal property as security, though such 
 property would otherwise be exempt from execution. Jones v. Scott, N. S. xii. 
 531. 
 
 28. The lender of a chattel, though not the owner, may bring a suit for dam- 
 age happening while in the borrower's possession, and such suit may be pleaded 
 in bar to one brought by the owner. Casey v. Suter, N. S. xii. 52, 
 
 29. A township trustee is not a mere bailee of the money which comes into 
 his hands by virtue of his office, liock v. Stinger, N. S. xii. 406. 
 
 30. The legal technical title is in himself. Id. 
 
 31. Who is bailee under Pennsylvania Act of 30th March 1860, s. 108. 
 Commonwealth v. Chathams, N. S. v. 377. 
 
 32. Duty of pledgee holding collateral security for an indefinite time. Sit- 
 greavss v. Bank.i, N. S. v. 249. 
 
 33. Pledgee violates duty in selling collateral privately, without notice to 
 debtor, or calling on him to redeem. Id. 
 
 34. If goods are taken from a bailee by authority of law, it will be a defence 
 to an action by the bailor against him. Bliven v. Railroad, N. S. i. 376. 
 
 35. But the bailee must show that the proceedings were regular. This is the 
 rule as to bailees, and includes the case of common carriers. Id. 
 
 36. The hirer of a horse, who by improperly feeding and watering him has 
 made him sick, and returns him in that condition, is liable for his full value in 
 case of his death. Eastman v. Sanborn, N. S. i. 568. 
 
 37. Contracts of, and contracts of sale ; difference between ; subject discussed. 
 N. S. iii. 321. 
 
90 BAILMENT— BANK AND BANKER. 
 
 38. Pledgor by the act of pledging, impliedly engages that he is the owner of 
 the property pledged, and where the ownership of any part thereof is not in him 
 he is lialble to the pledgee in damages. Mairs v. Tai/hr, N. S. i. 759. 
 
 39. In a suit against common carrier to recover the value of poods not deli- 
 vered. Evidence as to delivery of the goods to the carrier. Sclioles v. Acker- 
 land, 0. S.'iii. 636. 
 
 40. Liability of boarding-house keeper to take care of guest's baggage. 
 Dansey v. Richardson, O. S. iii. 122. 
 
 41. No bailee is bound on giving receipt for the goods to open the package to 
 see if they correspond with the name given them. If he acts in good faith he is 
 not responsible ; he is not answerable to another who advanced goods on the 
 faith of the receipt. Grier v. Nickle, 0. S. i, 119. 
 
 42. A bank is only bound to take ordinary care of bonds deposited as collat- 
 eral for a note discounted. Jenkins v. Bank, N. S. x. 598. 
 
 43. Gratuitous bailee not liable for carelessness of his servant. Woodman v. 
 Joiner, N. S. iv. 308. 
 
 "44. Where goods are damaged in the hands of the first carrier, second carrier, 
 knowing the fact and aiding in concealing it, gives first carrier a clean bill of 
 lading ; second carrier cannot show that the goods were injured when he re- 
 ceived them. Bowman v. Kennedy, 0. S. i. 119. 
 
 45. Advance of money on warehouseman's receipt ; what goods does it cover ; 
 claim of third person thereunder. Gardiner v. Sui/dam, 0. S. i. 179. 
 
 46. A sheriff is a quasi bailee of property seized by him under process, and 
 only bound to use such care and diligence as a bailee for compensation. Price 
 V. Stone, N. S. xiii. 61. 
 
 47. Where unfinished property is held by a creditor as collateral security, and 
 is finished by him, equity will compel the payment of the creditor's disburse- 
 ments before any application is made on the debt. Rowan v. State Bank, N. S. 
 xiii. 53. 
 
 48. The creditor's equity is superior to that of an attaching creditor. /(/. 
 
 49. An agreement for the sale of property which the vendee promises to hold 
 in his possession, is a contract of bailment. Johnston v. Whitlemore, N. S, xiii. 
 389. 
 
 50. If the bailee sells or converts, the bailor may maintain trover for it. Jd. 
 
 5 1 . Where specific securities which have been delivered to one are surrendered 
 to another, trover or a special action for damages is the proper action, and not 
 assumpsit. Barnumv. Stone and Berry, N. S. xiii. 389. 
 
 BANK AND BANKER. 
 
 1. Officers of savings institutions ai-e to be held to the exercise of reasonable 
 care and diligence. Sullivan v. Lt-wi:.ton Ins. for Savings, N. S. ix. 120, 
 
 2. Strict proof of the identity of a depositor is not required. Id. 
 
 3. The word "place," where the bank is located, used in the Acts of Con- 
 gress, in reference to tlie taxation of national banks, means the siate in which 
 the bank is located. Saving Institution v. Boston, N. S. ix. 272. 
 
 4. The Act of Congress of February 10th 1868, which prescribes that the 
 taxation of the shares of national banks " shall not be at a greater rate than is 
 assessed upon any other moneyed capital in the hands of individual citizens," is 
 satisfied if the rate upon bank shares is ihe same as the rate upon moneyed capi- 
 tal in the hands of individual citizens in the town or city where the bank is 
 
 ' located. Id. 
 
 5. Where the rate of taxation is the same for individual capital and shares 
 of non-resident owners of national bank stock, the fact that the latter are taxed 
 specifically for the benefit of the state treasury, and the former for local muni- 
 cipal purposes does not make the tax invalid, as in confiict with the Act of 
 Congress. Id. 
 
 6. The law imposes upon a bank the obligation of knowing the signature of 
 its depositors ; and it cannot therefore recover for a forgery it has failed to detect. 
 Commercial Batik v. First National Bank, N. S. ix. 316. 
 
 7. Where neither the charter nor by-laws of a corporation fixes the term of 
 office of its cashier, but vests the appointment of all officers in the " directors for 
 the time being ;" a cashier so appointed holds his office during the pleasure of 
 the directors, unless they, at the time of appointment, limit the duration of his 
 office to a specified term. Sparks v. Farmers' Bank, N. S. ix. 365. 
 
BANK AND BANKER. 91 
 
 8. Banking corporation, powers of under the New Yorlv Act. Definition of 
 and powers. 0. S. i. 179. 
 
 9. Agreement in regard to safe keeping of deposit-book — part of contract 
 between plaintiff and bank — riglit of depositor to recover after loss of book. 
 Heath v. Savings Bank, N. S, vi. 246. 
 
 10. Liability of teller and his security for due-bills issued to raise money for 
 himself. Wayne T. Bank, N. S. vi. 631. 
 
 11. When bank receiving notes from its depositors for collection is responsible 
 for the negligence of its notary. Gerhardt v. Savings Inst., N. S. vi. 247. 
 
 12. Effect of bank in Indiana refusing to pay its note in coin — offering to pay 
 in legal tender notes — constitutionality of. Reynolds v. Bank, N. S. i. 669. 
 
 13. Holder of certificate of deposit payable to order of A. on presentation 
 cannot sue until demand has been made. Bank v. Bank, N. S. vii. 7.58. 
 
 14. Bank on refusal to pay tradesman's check, when sufficient assets, sub- 
 stantial damages may be recovered, without proof of actual damage. _ RoUn v. 
 Steward, O. S. iii. 123. 
 
 15. The bank by putting a person at the desk of the receiving teller makes 
 him an agent as to parties delivering money, &c., to him for the cashier. Hotch- 
 kiss V. Bank, N. S. iv. 381. 
 
 16. Directors of national bank may remove president before the adoption of 
 by-laws : Act of 1863. Taylor v. Hutton, N. S. iv. 703. 
 
 17. Where bank is in the habit of receiving negotiable paper for collection, 
 and the transmitting banker fails, owing the receiving banker, the latter cannot 
 retain his collections on paper so received, if he knew it was for collection merely. 
 Sweeny v. Easter, N. S. iv. 115. 
 
 18. It seems that the common law right of issuing paper representing money, 
 and to be used as currency by private bankers, has never had any existence by 
 the usages of this country, such paper having uniformly been issued by the gov- 
 ernment or by banks authorized by government. Anderson v. Alexander, O. S. 
 vii. 173. 
 
 19. By the constitution of Indiana tip bank of issue can be established, except 
 a state bank and free or private banks pursuant to the general banking law. Id. 
 
 20. It hence appears that an association of individuals for the purpose of 
 banking not in pursuance of any statute law, is an illegal institution. Id. 
 
 21. Deposit of notes and bills by customer vests the property in the banker 
 when he becomes absolutely responsible for the amount to the customer. Scott 
 v. Ocean Bank, N. S. i. 126. 
 
 22. Illegally conducted ; issuing paper to loan or put in circulation without 
 authority, effect of. IJfe and Trust Co. v. Bedee, 0. S. i. 180. 
 
 23. Damages for dishonoring customers' checks, liollin i', Stewart, 0. S ii. 
 638. 
 
 24. Deposits arc not due until demand is made. Fort v. ilcCully, N. S. x. 
 598. 
 
 25. If a banker transfers a depositor's notes before demand made of the 
 deposit, the latter cannot set off the deposit against the holder. Id. 
 
 26. Any language, whether oral or written, used by a bank officer representing 
 the check drawn upon the bank as good, estops the bank from afterwards denying 
 that there are funds to pay the same. Pope v. Bank of A lion, N. S. x. 599. 
 
 27. A bank collecting drafts deposited in another bank, as its agent, cannot 
 hold the proceeds against the depositor of the drafts for a debt of the bank in the 
 absence of evidence to show that a specific loan was made on the faith of the 
 drafts. Dod r. Fourth National Bank, N. S. x. 599. 
 
 28. A transfer of stock in a banking corporation organized under the Act of 
 June 3d 186-1 to a boni fide holder, is valid though the seller or pledgor be at 
 the time indebted to the bank ; and a by-law of the bank declared that no trans- 
 fer of the stock by any shareholder indelited to the bank should be made without 
 the consent of the board of directors. Evansville Bank v. Metropolitan Bank, N. 
 S. X. 774. 
 
 29. A certificate of deposit, payable to order of depositor, was issued by Bank 
 A. to T. D., who could not write. The certificate was afterwards stolen and pre- 
 sented to Bank B. by a stranger, who gave the name of T. D., and said he could 
 not write. Bank B. took the mark of the stranger and sent it to Bank A., wtiich 
 paid it. Held that Bank A, could recover of Bank B. -Bunk v. Savings Co., 
 N. S. X. 786. 
 
92 BANK AND BANKER. 
 
 30. Where C, who was cashier of a bank, and also town treasurer, embezzled 
 the funds of the bank by means of loans on notes made as such treasurer, in a 
 suit by the bank on such notes, it was held : — 
 
 (1.) That the votes of the town and the reports of the town treasurers were 
 admissible in evidence upon the question of the authority of C. to borrow money 
 for the town. 
 
 (2.) (By a majority of the court.) That as C. was engaged in an extensive 
 fraud on the bank, and in view of all the facts, it was fairly presumable that he 
 made the note in the form in which he did as a false representation and cover hy 
 which to perpetrate a fraud on the bank, and with no intention to bind the 
 town. ' 
 
 (3.) But that if he intended to bind the town, his own fraud as treasurer was 
 known to him as agent of the bank, and was therefore the knowledge of the 
 bank, and that the plaintiffs therefore could not recover. Fir^t Nat. Bank v. 
 New Milford, N. S. x. 572. 
 
 31. The officers of a bank are bound to know whether the drawer of a check 
 is a customer of the bank, and whether his account may justify payment. Suit 
 S. Bank v. Syracuse Sav. Inst., N. S, xi. 591. 
 
 32. Under what circumstances will acts and \vords of cashier discharge the 
 debtors of the bank without payment. Cochico Nat. Banh v. Hasbik, N. S. xi. 720, 
 
 33. If the cashier informs a surety that a note is paid, in consequence of 
 which he surrenders certain securities, the bank is estopped to deny that such 
 note is paid. Id, 
 
 34. A depositor in a national bank which has failed and passed into the hands 
 of a receiver, may set off the amount of his deposit against his debt to the bank 
 on note, Piatt v. Bmtley, N. S. xi. 171. 
 
 35. National banks, created under an Act of Congress, have no power to 
 bind themselves or their corporators, by accepting bonds, coin or other valuable 
 things, upon special deposit ; no recovery can be had against the bank for such 
 deposit. Wiley v. First National Bank, N. S. xiv. 342. 
 
 36. An agent of a bank who in general terms is authorized by a by-law or 
 otherwise to certify checks, cannot certify his own checks, when he has no funds 
 to his credit, so as to make the bank liable. Claflin v. Farmers' and Citizens' 
 Bank, N, S. ii. 92. 
 
 37. A holder who pays value for such a check cannot be said to take it in good 
 faith ; the fact that the name of the drawer is identical with that of the certifying 
 agent is sufficient to put him on inquiry. Id. 
 
 38. The custom of marking checks " good :" Note to Oaflimr. F. 4- C. Banh, 
 N. S. ii. 97. 
 
 39. Bank, after such marking, cannot allege want of funds of drawer. Id. 
 98. 
 
 40. Suit by holder of check against the bank for refusing to pay it. Id. 
 
 41. Restrictions on the transfer of stock. Leggtt v. Bank of Sing Sing, N. S. 
 ii. 249. 
 
 , 42. Dividends ; how payable ; state currency. Elile v. Chittenango, N. S. ii. 
 
 ' 18.3. 
 
 43. Certificate of deposit of " Illinois currency ;" how payable. Hu'bert v. 
 Carver, N. S. ii. 61. 
 
 44. The counting out of money to a person presenting the check, passes the 
 property to the latter, and cannot be revoked. Chambers v. Miller, N. S. iii. 
 439. 
 
 45. If banker denies right of depositor, by placing the deposit to the credit of 
 another person, he is presently liable to action for the amount. Carroll v. Cone, 
 N. S. iii. 319. 
 
 46. So where he voluntarily counts out the amount and hands it to the sheriff 
 to levy on. Id. 
 
 47. The money so counted out was his own money, and not the depositor's. Id. 
 
 48. Charging interest on customers' accounts. ' Crosskdl v. Bower N. S. iii, 
 438. 
 
 49. Cannot refuse to allow income t.ix to a cu.=fomer upon interest accruing on 
 a mortgage security. Morse v. Salt, N. S. iii. 439. 
 
 50. If a bank takes a mortgage security from a customer for a fixed sum, 
 owing by the latter, the relation of banker and customer ceases as to that sum! 
 Id. 
 
BANK AND BANKER. 93 
 
 5\. The tli'icountins of hills, when the cii'^tonipr's account is overdrawn, 
 makes the bank a holder for value. In re Oireio, N. S. iii. 439. 
 
 52. Hiihitual mode of mnking out an aecount is evidence of an agreement 
 that it should be so made. .Vo«<' v. Sa'l, X. S. iii. 4.3a. 
 
 53. In absence of special agreement, express or implied, the custom of bankers 
 may be proved. Id. 
 
 54. Disputed entry in pass-book is for the jury. Snead v. Williams, N. S. 
 Iii. 442. 
 
 55. Cashiers of a bank are held out to the public as having authority to act 
 according to the general usage, practice and course of business conducted by tlie 
 l>;ink. Their acts, within the scope of such usage, practice and course of busi- 
 ness, will in general bind the bank in favor of third persons possessing no other 
 knowledge. Matthews v. Mass. Nutiomil Bank, N. S. xiv. 153. 
 
 56. One of the ordinary and well-known duties of the cashier of a bank, is the 
 surrender of notes and securities upon payment, and his signature to the neces- 
 s;iry transfers of securities or collaterals when in the form of bills of exchange, 
 choses in action, stock certificates oi' similar securities for losses, which are 
 personal property, is an act within the scope of general usage, practice and course 
 of business in which the cashier of a bank is held out to the public as having 
 authority to act, and is therefore binding on the bank. Id. 
 
 57. A certificate of stock accompanied by an assignment and power of attorney, 
 executed in blank, has a species of negotiability well recognised in commercial 
 transactions and judicial decisions. The assignee is entitled to fill the blank with 
 liis own name, and the assignor is estopped from denying the genuineness of the 
 certificate or the antecedent signatures. Id. 
 
 58. The national banks have no lien upon shares of their capital stock for the 
 security of the indebtedness of the owners and holders of such shares. Bank of 
 Lotiitvllle V. Bank of Ntwark, N. S. xiv. 281. 
 
 59. Where the owners of such shares assign them bonS, fide, in security for 
 actual indebtedness, and give the creditor power to transfer such shares upon the 
 books of the bank it creates such a lien in favor of the creditor as will be pro- 
 tected under the Bankrupt Law of the United States. Id. 
 
 60. Where, more than two years after the creation of such lien, proceedings in 
 bankruptcy are instituted and prosecuted to final discharge of tlie debtor, without 
 any notice being taken by tlie assignee of the court, of the indebtedness or the 
 assignment of such shares in security, such discharge of the debtor will have no 
 effect upon the lien created by the assignment, and the assignee may compel, in 
 a court of equity, the perfecting of his title to the shares so assigned upon the 
 books of the bank. Id. 
 
 61. Can States, whose policy does not allow the organization of banks and pro- 
 vide for the taxation of shares, lawfully tax shares of a national bank ? Allen 
 V. Nolan, N. S. v. 609. 
 
 62. Like other private corporations, are confined to the sphere of action lim- 
 ited by the terms and intent of the charter. Weck'.er v. First Ndtional Bank, 
 N. S. xiv. 609. 
 
 63. In inquiring into the power of a corporation to make contracts, it must be 
 considered : 1st. Whether its charter, or the statute law binding upon it, permits 
 or forbids it to make such contract ; or, 2d. May such power he implied as 
 incidental to its existence ; or, 3J. Is the contract foreign to the purposes of 
 its creation. Id. 
 
 64. By section eight of the National Bank Act, authorizing the incorporation 
 of national banking associations, the kind of banking is limited and defined ; 
 and, as the act contains no grant of the power to engage in Iwnd brokerage, it 
 is therefore prohibited to them. Nor is it necessary to the purpose of their ex- 
 istence, or in any sense incidental to the business of banking. Id. 
 
 65. Erroneoiis certificate that note was good. Irving Bank v. Whetherald, N. 
 S. vii. 352. 
 
 66. The penal sanctions of section three, Act of June 14th 1866, to secure 
 the safe-keeping of money, &c., are confined to officers of banks. United States 
 V. Hartwell, N. S. vii. 446. 
 
 67. A depositor in a bank depositing a draft for collection, and his deposit 
 hook being balanced frequently, without having the draft credited to him, and 
 having drawn out the balance remaining to his credit, is estopped after six years 
 from going behind the account stated. Hutohinson v. Bank, N. S. vii. 183. 
 
94 BANK AND BANKEE. 
 
 68. Certificate of deposit, payable on presentation, is negotiable. Bank v. 
 Bank, N. S. rii. 758. 
 
 69. Where United States Treasury notes are. overdue, purchaser takes subject 
 to rights of antecedent holders — like other paper bought after maturity. No 
 custom of bankers and brokers can be proved in contravention of this rule of 
 commercial law. Vermili/e Ij- Co. f. Adams Ex. Co., N. S. xiv. .521. 
 
 70. An attachment issiied by a state court to affect the funds of a national 
 bank is illegal, beinfr in violation of the fil'ty-scventh section of Act of June 3d 
 1804. Chesapeake Bank v. »s( National, Bank of Ba'timore, N. S. xiv. 259. 
 
 71. In an action of deceit against a national bank, seeking to recover damages 
 for the alleged fraudulent representations of its teller made in the sale to the 
 plaintiff of certain railroad bonds : Beld, that the business of selling bonds on 
 commission is not within the scope of the powers of national banking associa- 
 tions, and the bank cannot, under any circumstances, carry it on ; and being 
 thus beyond its corporate power, the defence of ultra vires is open to it, and tlie 
 bank is not responsible for any false representations, by which the plaintiff may 
 have been damnified, made by the teller in such dealings. Weckler v. First Nat. 
 Bank, N. S. xiv. 609. 
 
 72. Indebtedness of one person to a greater amount than one-tenth of the 
 capital of a national bank does not render a loan void under the Act of June .3d 
 1864. O'Hare v. Second Nat. Bank, N. S. xiv. 758. 
 
 73. Accidental excess made in mistake or ignorance will not forfeit an honest 
 loan. /(/. 
 
 74. Such excess known only to the bank is not such an unlawful act as will 
 aid the loan. Jd. 
 
 75. A loan of money and a note taken as security are part of the proper busi- 
 ness of a bank, and therefore not illegal in themselves. Jd. 
 
 76. An agent with power to sign checks has no authority to overdraw his 
 principal's account. Bank v. Mott, N. S. iii. 60. 
 
 77. Where a note is signed as cashier, parol evidence is admissible to show of 
 what bank. Baldwin v. Bank, N. S. iii. 629. 
 
 78. Bank receiving a note for collection, no better title than the remitting 
 bank. McBride v. Bank, N. S. iii. 636. 
 
 79. Liability of, receiving bills on deposit for transmission or collection. Ex- 
 press Co. V. Dunlevi/, N. S. iii. 271. 
 
 80. Acting as collecting agent only need only notify its immediate principal. Id. 
 
 81. Maker has all the last day of grace, though he may have refused payment 
 during the day, and it is immaterial whether the note is payable at bank or at 
 large. Oothout v. Ballard, N. S. iii. 444. 
 
 82. There is no implied contract to pay the president for his services. Sawi/er 
 V. Bank, N. S. iii. 2,9. 
 
 83. A debtor sued by bank cannot plead acts by which the latter has forfeited 
 its charter — such forfeiture can only be enforced by the state in a direct proceed- 
 ing. Bank v. Garten, N. S. iii. 634. 
 
 84. Statements of the. president of a bank made after payment of a certificate 
 of deposit are not evidence against the bank. Hadeton v. Union Bank, N. S. 
 xii. 464. 
 
 85. A national bank may he sued in any court in the county or city where it 
 is located. Bank v. Bank, N, S. xii. 12.5. 
 
 86. It does not lose its corporate existence by mere default in paying its cir- 
 culation. Id. 
 
 87. It may be sued though a receiver has been appointed. Id. 
 
 88. Decision of receiver on validity of a claim not final. Id. 
 
 89. A mortgage made to the president to secure loans made by the bank, the 
 bank is the creditor of the mortgagee. Ripley v. Harris, N. S. xii. 467. 
 
 90. If a shareholder places part of his shares in the hands of a third person 
 to enable him to become a director, he will be estopped from denving that he is 
 the actual owner as against a creditor who trusted him on the faith of the shares. 
 Young V. Voiigli, N. S. xii. 467. 
 
 91. A by-law that no shares shall be transferred while the holder is indebted 
 is reasonable. Id. 
 
 92. An endorser paying a note is subrogated to the rights of the bank. Id. 
 
 93. It is not every loan made in New York by a foreign corporation which is pro- 
 hibited by the statute against unauthorized banking. Bank v. Rea, N. S. xii. 600. 
 
BANK AND BANKEK. 95 
 
 94. Paper not payable at a bank is dishonored upon refusal to pay on demand 
 at a reasonable hour during business hours. Etheritlge v. Ladcl, N. S. v. 249. 
 
 95. When note is payable at bank, it is left there and demand made at close of 
 day. Id. 
 
 96. A bank cannot avail itself of the neglect of a third person to prevent the 
 recovery by one to whom it has paid out a spurious note. Durrill v. Wtiterlown 
 Uank and Loan Co., N. S. viii. 183. 
 
 97. A bank having received $3000 in gold coin of the United States as a 
 special deposit will be compelled to return to the depositor the amount of coin 
 in specie from the time of demand. Chesapeake Bonk v. Sioain, N. S. viii. 754. 
 
 93. A national banking association organized from a state hai>k and receiving 
 its assets is liable for its debt. Thorp v. Wegrfarth, N. S. viii. 62. 
 
 99. After a national association has become insolvent, its debtor could not 
 purchase notes for which it was liable to set off against his debt, /(/. 
 
 100. Powers of Congress over taxation of shares in national banks. People 
 V, Assessors of Barton, N. S. v. 383. 
 
 101. Assessors cannot assess shares in national bank under New York Act of 
 March 9th 1865. Id. 441. 
 
 102. Liability of bank for its officers' acts within apparent scope of authority. 
 Rei/nolds v. Km yon, N. S. v. 181. 
 
 103. Sales bv bankers for their own account not subject to duties. United 
 States V. FUk, isr. S. v. 565. 
 
 104. National banks, under Acts of 1863 and 1864, are lawfully created. 
 Utica V. Churchill, N. S. v. 122. 
 
 105. Taxation in New York on stock in national banks held by a stockholder. 
 Id. 
 
 106. National bank acts constitutional. People v. Assessors nf Barton, N. S. 
 V. 441. 
 
 107. Dissolution. — The charter of a bank expires in Maine within the meaning 
 of the statute of that state when an injunction is made perpetual. W'iiwell v. 
 Starr, O. S. ix. 439. 
 
 ip8. Compulsory assignments. — The 27th section of the general hanking laws 
 of Pennsylvania of the 16th of April 1850 is technically a penal statute, and is 
 to be strictly construed. CommonweaHh v. Bank of Commerce, O. S. ix. 379. 
 
 109. To authorize the court or judge to decree an assignment by the directors 
 of a bank under the 27th section of the Act of April 1 6th 1850, it must appear 
 that the financial officer of the bank not only refused to pay its notes or certificates 
 in gold or silver on demand, but that he also wilfully refused to endorse on them 
 the day and year when they were presented for payment, or refused to give a cer- 
 tificate for money deposited in the bank. Id. 
 
 110. Fraud of officers. — A., a broker, drew a check on the Merchants' Bank, 
 where he had no funds, and by fraudulently conspiring with B., the bank's pay- 
 ing teller, caused the check to be marked " goo<l," and thereupon A., the broker, 
 took it to C, a teller in the Atlantic Bank, who cashed it, and the money was 
 then placed in the hands of B. in order to make B.'s account good while under- 
 going an examination by the bank's officers, the purpose for which the money 
 was to be used being known to all three of the parties, hut unknown to the 
 officers of either bank, and it being intended to be returned the next day after the 
 examination, hut before the check was returned and a settlement riiade, B. 's fraud 
 was discovered and he committed suicide, it was held, that the Atlantic Bank, 
 whose money was taken without authority and without consideration, and by a 
 fraud, and went directly into the funds of the Merchants' J3ank by a conspiracy 
 of the tellers, could maintain an action in assumpsit for money had and received. 
 Atlantic Bank v. Merchants' Bank, 0. S. ix. 241. 
 
 111. The transfer of a sum of money from one party to another in order to he 
 a payment of a debt must be so intended by both parties. Id. 
 
 U2. I-iability of shareholders. — Each stockholder in a hank in this state 
 (Maine) is liable to make good losses sustained by the pecuniary inability of the 
 directors, by whose mismanagement the bank has sustained a loss to an amount 
 not exceeding the amount of his stock at the time. Wiswell v. Starr, O. S. ix. 
 439. 
 
 113. Each stockholder is also liable at the expiration of the charter for the re- 
 demption of all unpaid bills in proportion to the stock he then holds, the sum to 
 be contributed by each will be in proportion to the whole number of shares 
 
96 BANK AND BANKER. 
 
 actually unpaid at the expiration of the charter, whether such holders are within 
 or without the jurisdiction of the court. Wiswell v. Starr, 0. S. ix. 439. 
 
 lU. If the whole number of shares necessary to make up the capital stock 
 named in the charter does not appear on the hooks, or otherwise to be held by 
 persons, the liability will be apportioned according to the number of shares 
 actually held, and not upon the whole capital named in the charter. Id. 
 
 11,5. When one of the receivers named in the bill is also a stockholder, the 
 bill cannot be sustained, as the same person cannot be at the same time com- 
 plainant and respondent, but the bill may be amended on motion. Id. 
 
 116. Under such circumstances, a general resolution of a board of directors, 
 that the cashier should be annually elected, and tliei practice of that and subse- 
 quent boards, to hold elections annually, constituted him an annual officer in a 
 certain sense, but not so entirely as to make his term of office expire, ip^ofaclo, at 
 the end of the year ; it is a question of what term the board intended to elect 
 for. And where the charter prescribed that the cashierf before entering on the 
 duties of his office, should give bond, &c., it will be presumed that the board in- 
 tended the old cashier to continue in office until the new one should not only be 
 elected but qualified to take his place. Sparks v. Farmers' Bank, N. S. ix. 365. 
 
 117. Therefore, where a cashier was elected and gave bond in one year, and 
 was re-elected the next year, but failed to give a new bond, it was held that he 
 was in office by virtue of his first election, and his sureties were liable for his 
 acts during the second year. Id. 
 
 118. Nor is the bank estopped by its failure to'examine the cashier's accounts 
 with such frequency as to discover his defalcations within the year in which they 
 took place. Id. 
 
 119. Receiving a note for collection, has a right to retain the proceeds, as 
 against the true owner, on account of a balance due from the transmitter. 
 Dickerson v. Wason, N. S. ix. 191. 
 
 120. Has a lien on all securities in his hands for money advanced to a customer. 
 Milhr V. F. Sr M. Bank, N. S, ix. 575. 
 
 121. Bank director will be held responsible to the depositors for the loss or 
 conversion by the bank of special deposits in such bank whenever they know of 
 such conversion, or might have known of it by the exercise of such care and 
 diligence as the law requires of such officers in representing the affairs of 
 the hank. U. Soc. of Shakers v. Underwood, N. S. xiii. 211. 
 
 122. Bank directors must be considered as affected with the knowledge of such 
 facts as appear upon the bank books. Id. 
 
 123. A receiver appointed under the fiftieth section of the National Banking 
 Act, may sue for demands due the bank in his own name as receiver. Bank v. 
 Kenned/i, N. S. xiii. 333. 
 
 12+. He need not get an order from the comptroller to entitle him to sue to 
 collect the assets in his official duty. Id. 
 
 123. Bankers have no lien for advances on boxes containing securities depos- 
 ited with them for safe-keeping. Leese v. Martin, N. S. xiii. 587. 
 
 J 26. They are gratuitous bailees. Id. 
 
 127. Though a bank may be deprived by statute of the right to take real 
 estate, still it may through a trustee obtain control of real estate on which it had 
 a lien and sell the same. Zantzingers v. Gimion, N. S. xiii. 587. 
 
 128. A national bank is not bound to make a formal acceptance Of a cashier's 
 bond. Acceptance will be presumed from the presentation to or retention by 
 the bank and the entry of the cashier on his duties. Graves v. L. Nat. Bank, 
 N. S. xiii. 617. 
 
 129. The sureties of cashier are liable for default made after the execution of 
 their bond, although the bank may have published accounts of its affairs as 
 requireil by law which were untrue and calculated to mislead. Id. 
 
 130. Tlie directors of a national bank published a statement of the condition 
 of the bank, showing apparently a correct and prosperous administration. In 
 fact the cashier had at that time made defaults which a slight degree of care 
 would have discovered. Shortly after the publication of the statement, the 
 cashier filed a bond with sureties, on the subsequent discovery of the default and 
 suit against the parties it was held, that the bond was void as to them, having been 
 based on misrepresentation. Id, 
 
 131. Semble, it will be presumed that a surety under such circumstances had 
 
BANK AND BANKER— BANKRUPTCY. 97 
 
 read and acted on the published statement. Graves v. L. Nat. Bank, N. S, 
 xiii. 617. 
 
 13S. Shares of stock in » national bank are personal property, bat the law 
 creating them could separate them from the person of their owner for the purpose 
 of taxation and give them a situs of their own. Ttippan v. M. Nat. Bank, N. 
 S. xiii. 71.3. 
 
 133. The 41st sect, of the National Banking Act of Juno 3d 1864, separating 
 the shares, became a law of the property, and ei'ery state within which a national 
 bank was located acquii'ed jurisdiction for the purpose of taxation. Id. 
 
 134. Nothing in art. ix. of the Constitution of Illinois of 1848, prevented the 
 legislature from taxing the owner of shares in the place where the bank was 
 located. Id. 
 
 BANK CHECK. , 
 
 1. The holder of a bank check marked "good" stands on the footing of an 
 ordinary depositor, and no right of action cxi^rts, and tlie Statute of Limitations 
 does not begin to run until a demand has been made by the holder on the bank 
 for payment. Girard Bank v. The Bank of Ptnn Township, 0. S. ix. 620. 
 
 2. A check was drawu on the 7th of October 1852, and properly certified 
 when drawn. It was not presented for payment until September 3d 1859, nearly 
 seven years from the date of the deposit. On the 10th of October 1854, tlie bank 
 paid the money to the original depositor, taking Iiis bond of indemnity against 
 the certified check. Held, that the plaintiff^ was not barred of his action against 
 the bank by such delay in making the demand for money, and that the taking of 
 the bond of indemnity was a distinct acknowledgment that the money then re- 
 mained on deposit to the credit of the holder of the certified check. Id. 
 
 3. Bank check payable at subsequent date entitled to days of grace. Ivory v. 
 Bank, N. S. v. 442. 
 
 BANK NOTES. 
 
 1. Bank bills are the subject of larceny. State v. Gorham., N. S. xiv. 701. 
 
 2. In an action on a bank note or other note or bill payable on demand it is 
 not necessary to aver and prove a demand, the suit itself being a demand. 
 Dougherty v.' Bank, 0. S. i. 689. 
 
 3. But otherwise where the note is payable at a particular time and place. Id. 
 
 4. Statute of Limitations does not apply to bank notes. /(/. 
 
 B iNKRUPTCY. 
 
 1. Suggestions of amendments to the Bankrupt Act. N. S. xii. 737. 
 
 2. Expediency of a Bankrupt Laws subject discussed. N. S. iv. 449. 
 
 3. Early Bankrupt Laws. N. S. iv. 581. 
 
 4. Act of 1841, sect. 8, construed. Bank v. Ogden, N. S. iv. 509. 
 
 I. CONSTITUTIONAMTT. 
 
 5. Constitutionality of exemption clause, subject discussed. N. S. vii. 55, 180. 
 
 6. So far as conformity in the procedure under executions out of the Federal 
 courts, and out of the courts of the respective states, had been attained under the 
 Act of 1828, and the rules of practice in the Federal courts, the constitutional 
 requirement that the system of bankruptcy should be uniform, has been fulfilled 
 if the bankrupt law operates uniformly upon whatever would have been liable 
 to execution if no such law had been passed, though the subjects of its operation 
 may not be in all respects the same in every one of the states. Tie Appold, N. 
 S. vii. 624. 
 
 7. Constitutionality of exemption clause in the Act of 1867, subject discussed. 
 N. S. vi. 721. 
 
 II. Jurisdiction. 
 
 8. Jurisdiction of United States Circuit and District Courts. N. S. vii. 642. 
 
 9. Where a judgment-creditor levies an execution from a state court and the 
 debtor files a petition in bankruptcy, the Court of Bankruptcy may either allow 
 the creditors to proceed with the execution, or may enjoin him and direct the 
 assignee to take possession and sell the goods, with leave to the creditor to apply 
 for an order directing the payment of his judgment out of the proceeds. Matter- 
 o/5cAHe//, N. S. vii. 204. 
 
 10. Jurisdiction of Bankruptcy Court over creditors proceeding in state courts. 
 Note to Schncpf Case, N. S. vii. 206. 
 
 11. Congress, by the Constitution of the United States, had the right to bring 
 7 
 
98 BANKRUPTCY. 
 
 rU parties, estates and interest connected with a bankrupt into the District Court 
 of the United States as a Court of Bankruptcy ; and to confer upon the Dis- 
 trict Courts the aurliority to suspend all and every proceeding elsewhere ; and to 
 command obedience to their mandates, exclusive of all other jurisdictions. But, 
 tiy the Bankrupt Act of 1867, they have not done so. Matter of Campbell, N. 
 S. vii. 100. 
 
 12. This act does not authorize the District Courts of the United States to 
 issue injunctions to state courts, nor to the actors or parties litigating before 
 them. Id. 
 
 13. The Act of 2d March 1793 prohibits it; and this act is not repealed by the 
 Bankrupt Law, eitlier in express terms, or by implication. Id. 
 
 14. Courts of a state are independent tribunals, not deriving; their authority 
 from the same sovereign, and as regards the District Court of the United States, 
 foreign tribunals, every way its equal, and over which the'District Court has 
 no supervisory power, and the Bankrupt Law does not change the relation of 
 these courts to each other. Id. 
 
 1.'). The authority conferred by the 40th section, to issue an injunction against 
 the bankrupt, and all other persons, has no reference to the state courts, and it 
 is a limitation of the sweeping provisions of the 1st section. Id. 
 
 16. It was designed to protect the property of a party not yet declared a bank- 
 rupt, until his bankruptcy has been legally established. Id. 
 
 17. The principle decided in Cumpbdl's Case, that the District Courts of the 
 United States have no power to issue injunctions to state courts, aliSrmed. Mat- 
 ter of Burns, N. S. vii 105. 
 
 18. A judgment cannot be assailed in the Bankrupt Court, but the assignee 
 and creditors must resort to the state court, to test its validity. Id. 
 
 19. In a case of involuntary bankruptcy, in which the debtor, being insolvent, 
 or having insolvency in contemplation, and intending to give a preference, or to 
 defeat or delay the operation of the Bankrupt Law, has, within six months before 
 the commencement of the proceedings in bankruptcy, given to a creditor who had 
 reasonable cause to-believe that a fraud on this law was intended, or that the 
 debtoi' was insolvent, a warrant of attorney under which judgment has been con- 
 fessed in a state court, and an execution has been levied upon his stock in trade, 
 which has not as yet been sold under it, the present Bankrupt Law gives to the 
 courts of the United States jurisdiction to prohibit such creditor, by injunction, 
 from proceeding further under such execution. Irving v. Hughes^'S. S. vii. 209. 
 
 20. Tlie District Coiu't, instead of issuing such an injunction under the sum- 
 mary jurisdiction in bankruptcy, may refuse to consider the subject unless under 
 a distinct auxiliary proceeding in equity against such a creditor. The bill at the 
 suit of the petitioning or any intervening creditor, may then be prosecuted in the 
 ■Circuit Court on behalf of the general body of creditors, until the assignment in 
 bankruptcy, after which the assignee may be substituted or added as a complain- 
 ant ; and if the proceedings in bankruptcy are duly prosecuted, a preliminary 
 injunction issued by the Circuit Court may, in a proper case, be continued after 
 answer, under such conditions as will preserve the priority of the creditor thus 
 restrained if the lien of his execution should ultimately be "established. Id. 
 
 21. An unimpugned ci-editor's lien having, before the commencement of vol- 
 untary proceedings in bankruptcy, attached upon part of the bankrupt's estate, 
 no consideration of probable sacrifice of the subject of the lien under judicial 
 proceedings for its enforcement in a state couit, will induce a court of the' United 
 States to restrain, delay, or hinder the creditor from prosecuting them. No 
 equity of the general body of the bankrupt's creditors can be asserted for their 
 common^ equal benefit, on the more ground of doubtfulness of his title to the 
 subject of the lien and the danger of consequent sacrifice at a forced sale. Quare, 
 ■whether such an equity can be asserteil on their behalf in any case without such 
 a payment of his demand as may substitute the assignee in bankruptcy for him as 
 to the lien. Ex parte Donaldson, N. S. vii. 213. 
 
 22. A debtor made an assignment under the insolvent law of Ohio on May 25th 
 1867, and under it a state court took cognisance of the matter. On July i7th a 
 petition in bankruptcy was filed by a creditor. Held, that as to this matter the 
 Bankrupt Act of 1867 was in force on May 25th, and the United States courts 
 could rightfully take jurisdiction of the whole matter under the petition filed in 
 .July. Perry T. Langley, N. S. vii. 429. 
 
 23. Where .a bankrupt is held under arrest upon state process, in an action of 
 
BANKRUPTCY. 99 
 
 tort in the nature of deceit, it lieing Blleged in tlie declaration that he obtained 
 possession of the plaintiff's goods under color of a contract by means of false 
 and fraudulent representations, the United States District Court has no power to 
 discharge the bankrupt upon a hnbeas corpus^ Re Devoe. N. S. vii. 690. 
 
 24. Evidence cannot be received to contradict the declaration, and to show 
 that no such cause of action really exists as is therein set forth. Id. 
 
 25. A proceeding in bankruptcy from the filing of the petition to the discharge 
 or refusal to discharge the bankrupt is a single case, and is subject to appeal or 
 writ of error as such, but there may be a large number of cases or questions aris- 
 ing in the course of it, and these may be the subject of review by the Circuit 
 Court by ^vvit of error or appeal, or petition to review, according to their nature. 
 Citizens' Bunk v. 0!ier, N. S. x. 36. 
 
 26. If the matter is a suit at law or in equity, or a dispute by the assignee of a 
 creditor's claim allowed, or a claim by a creditor wholly or in part rejected, then 
 it must be brought before the Circuit Court by writ of error or appeal. Id. 
 
 27. But all other cases or questions arising in the progress of a case in bank- 
 ruptcy fall within the supervisory jurisdiction of the Circuit Court, and must be 
 brought before it by bill or petition to review. Id. 
 
 28. The settlement of the status of a creditor's claim as to priority with respect 
 to other liens is not the allowance or rejection of the claim meant by sect. 8, by 
 which an appeal is given, and the proper mode of bringing such a matter before 
 the Circuit Court is by petition to review. Id. 
 
 29. An assignee made a sale of real estate of the bankrupt at which certain 
 creditors purchased. The District Court confirmed the sale against the excep- 
 tions of other creditors, and made an order as to the priority of certain liens. 
 Held, that this was a proceeding within the supervisory power of the Circuit Court, 
 and should be brought before it by petition to review. Id. 
 
 30. A state court has no jurisdiction of a bill in equity filed by an assignee in 
 bankruptcy, to set aside a conveyance made by a bankrupt, in fraud of the act. 
 Voorhees v. Fribhec, Jf. S. xii. 108. 
 
 31. Courts of equity must have complete control over all the matters in con- 
 troversy, directly, or by coercion of the parties, and where this does not exist, as 
 in the case of an assignee, jurisdiction will be denied. Id. 
 
 32. In suits that can only be maintained under the Bankrupt Act, the United 
 States courts have exclusive jurisdiction. Id, 
 
 33. A man should not be adjudged b.ankrupt for non-payment of commercial 
 paper if he has reasonable ground for believing he is not liable on it. In re 
 Jluniij N. S. xii. 461. 
 
 34. If he can satisfy the court that he has good reason for disputing his 
 liability, the court should not entertain jurisdiction. Id. 
 
 3.5. The Bankrupt Act does not authorize the courts of bankruptcy to enjoin a 
 state court even in the matter of the distribution of the assets of an insolvent 
 partnership, nor does it declare them the only courts in which such distribution 
 can be made. C/ark v. Bininqer, N. S. ix. 304. 
 
 36. The Bankrupt Act gives the Federal courts exclusive jurisdiction in all 
 matters in bankruptcy. Van Nnatrandx. Carr, N. S. ix. 317. 
 
 37. The jurisdiction is independent of the right of the party ultimately to 
 obtain his discharge. Id. 
 
 38. The Federal Bankrupt Law suspended the operation of the statutes of 
 California, for the relief of insolvent debtors. Martin v. Berry, N. S. ix. 317. 
 
 39. The Federal Bankrupt Law went into effect on the first of June 1867, in 
 California. Id. 
 
 40. In an indictment under section 44 of the Bankrupt Act, for fraudulently 
 obtaining goods on credit, the proceedings in the bankruptcy court must be 
 pleaded and proved with such particularity as to show affirmatively that an adju- 
 dication of bankruptcy was made upon a case in which the court had jurisdiction. 
 United States v. Prestcott et al., N. S. ix. 481. 
 
 41. The indictment therefore should set out the filing of the petition, the name 
 of the petitioning creditor, the amount of his debt, the alleged act of bankruptcy, 
 and the adjudication of the bankrupt court. Id. 
 
 42. The description of the goods obtained must be as certain as it can reason- 
 ably he made. It should be as definite as would be required in a declaration in 
 trover. Id. 
 
100 BANKRUPTCY. 
 
 43. Offences under sect. 44 are misdemeanors, ond the tvord "feloniously" 
 should not be used. United States v. Prefcnlt et oL, N. S. ix. 481. 
 
 44. The Bankrupt Act does not absolutely and totally suspend or abrogate 
 state insolvent laws. Hawkins's Appeal, N. S. viii. 205. 
 
 45. A voluntary assignment by a debtor, pood at common law and made in 
 the form prescribed by the insolvent law of the state, held valid, although the 
 United States Bankrupt Act was in existence and applicable to the case at the 
 time of the assignment. Id. 
 
 46. And the proceedings of the probate court in administering upon the insol- 
 vent estate so assigned held valid. Id. 
 
 47. Where there is no conflict of jurisdiction between the officers of the state 
 courts and the Court of Bankruptcy, the latter will not inter/ere. Re Davidiov, 
 N. S. viii. 236. 
 
 48. Discharge refused for want of jurisdiction, where the bankrupt was 
 member of a firm in New Jersey, but had also an office in Kew York where he 
 received and wrote his letters. Re Little, N. S. viii. 236. 
 
 49. District Court has no power by injunction, to stay proceedings in another 
 court by reason of bankruptcy proceedings pending in another state. In re Rich- 
 ardson, N. S. viii. 236. 
 
 50. The appellate jurisdiction, properly so called, of the Circuit Court, in bank- 
 ruptcy matters, is limited to controversies between assignees and the claimants 
 of adverse interests, and between assignees and creditor-claimants respecting the 
 allowance of claims. In re Alexander, N. S. viii. 423. 
 
 51. The supervisory jurisdiction of the Circuit Court includes all decisions of 
 the District Court, or the district judges at chambers, whicli cannot be reviewed 
 by appeal or writ of error under the appellate jurisdiction given by the eighth 
 section. In re Alexander, N. S. viii. 423. 
 
 52. An appeal must be taken in the time and manner prescribed bv the !\rt. 
 The regulations as to appeals are regulations of jurisdiction, and cannot be 
 enlarged or restricted by the Circuit or District Courts. Id. 
 
 53. The Circuit Court, under the second section of the Bankrupt Act, has juris- 
 diction to revise the rulings and judgment of the District Court in proceedings in 
 bankruptcy upon bill filed. Langliy v. Perry, N. S. viii. 427. 
 
 54. Where the United States courts have acquired jurisdiction of a bankrupt's 
 estate, the state courts lose jurisdiction of all claims provable under the act. 
 Woo^folk V. Woolfolk, N. S. xi. 329. 
 
 55. Whether the claim for homestead and exemption, under a state constitu- 
 tion is a debt, such as may be proved before the bankrupt court, is for that 
 court alone to decide. Id. 
 
 56. Where there is no conflict with the claims of domestic creditors, the 
 assignees of a foreign bankrupt may sue in the United States courts for property 
 of their bankrupt. Hunt v. Jackson, N. S. vi. 169. 
 
 57. The bankrupt court has jurisdiction of a petition by one partner, though 
 proceedings are pending in a state court to wind up partnership. In re Noonan, 
 N. S. xiii. 121. 
 
 58. Such petition being voluntary need not allege'an act of bankruptcy. Id. 
 
 59. A dissolution of partnership does not put an end to the power of bankrupt 
 court. Id. 
 
 60. So long as any unfinished business remains the court has jurisdiction. Id. 
 
 61. The District Court has no jurisdiction of involuntary bankruptcy, unless 
 it appears there are over §300 of debts, and bankrupt is indebted to petitioner 
 over $250. In re Shelley, N. S. xiii. 122. 
 
 62. When indebtedness is reduced below that sum by subsequent payments, the 
 court loses jurisdiction. Id. 
 
 63. The creditor cannot add the costs to his debt to raise it above the juris- 
 dictional limit. Id. 
 
 64. Nor can he add counsel fees. Id. 
 
 65. Married women as bankrupts. N. S. xiii. 129. 
 
 66. A fire insurance company is within the scope of the bankrupt law. In re 
 Merchants' Ins. Co., N. S. xiii. 193. 
 
 67. Appointment by a state court of receiver is a " taking on legal process" 
 within the 39th section of the bankrupt act. Id. 
 
 68. The jurisdiction of the Federal courts is exclusive. Id. 
 
BANKRUPTCY. 101 
 
 69. The failure to file petition, and acquiescence in proceedinfrs by state court 
 against insolvent insurance company, is an act of bankruptcy. In re Merchants' 
 IiiH. Co., N. S. xiii. 193. 
 
 70. Payment of rent to preserve a valuable lease is an act of bankruptcy. Id. 
 
 71. The acts for which a state court may set aside a conveyance arc such as 
 are malum in se. Gilbert v. Priesl, N. S. xiii. 62. 
 
 72. If a conveyance is fraudulent against creditors, the courts of New York 
 have jurisdiction to declare it void. Id. 
 
 73. If an assignment is an act of bankruptcy, which will give the Federal 
 courts jurisdiction to set it aside and assume the administration of the estate 
 under the Bankrupt Law, is a riitfercnt question which can only be raised in the 
 bankruptcy court. Conk v. Roger.i, N. S. xiv. 633. 
 
 74. An action by an assignee to set aside a conveyance as a fraud on the Bank- 
 rupt Act cannot be entertained by a state court. Gili'-rt v. Priest, N. S. xiii. 62. 
 
 73. In deciding whether giving a warrant to confess judgment is an act of 
 bankruptcy, the character, &o., of the alleged bankrupt's business may be taken 
 into consideration. iLdler of Leeds, N. S. vii. 693. 
 
 76. A suspension of payment of commercial paper for fourteen days is not, 
 unless fraudulent, an act of bankruptcy, hi. 
 
 77. A stopf)ing of payment of his commercial paper by a merchant or banker, 
 in order to constitute an act of bankruptcy under sect. 39 of the Bankrupt Act, 
 must be both fraudulent at first and be continued for fourteen days. Matter of 
 the .Terspy City Window Glass Company, N. S". vii. 419. 
 
 78. But a stoppage continued for fourteen days is primd facie fraudulent, and 
 casts on the debtor the burden of proving his solvency, and that his stopp.ige will 
 not have the effect of defrauding any creditor. Id. 
 
 79. A petitioning creditor, in proceeding for involuntary bankruptcy, not 
 having alleged that the debtor's stoppage for the fourteen days was fraudulent, 
 was allowed to amend his petition by adding that allegation. Id. 
 
 80. A general assignment for the benefit of all his creditors, by an, insolvent 
 debtor, prior to the 1st of June 1867, is not necessarily fraudulent nor for the 
 purpose of delaying or hindering creditors, and, therefore, not necessarily an 
 act of bankruptcy. lie Wells and Son. N. S. vii. 163. 
 
 81. A fruudu'ent stoppage of payment of commercial paper by a banker, is 
 per se an act of bankruptcy, for which proceedings may be immediately com- 
 menced. Id. 
 
 82. So is a stoppage not fraudulent, but which becomes an act of bankruptcy 
 by continuing for fourteen days. Id. 
 
 83. Where property of an insolvent was assif;ned to creditors' with fraudulent 
 preference. Held, in an action brought by assignee in bankruptcy, that the value 
 of the property exempt from execution must be deducted and judgment for re- 
 mainder. Grow v. Ba'lard, N. S. viii. 237. 
 
 84. A general assignment by an insolvent debtor, though made for the benefit 
 of all his creditors, is an act of bankruptcy. Perry v. Langley, N. S. vii. 429. 
 
 So. Where a creditor is about to get a judgment against his debtor, and the 
 latter makes a general assignment under a state insolvent law for the benefit of 
 his creditors, this is a conveyance with intent to delay, defraud, and hinder the 
 creditor, and an act of bankruptcy under sect. 39 of Bankrupt Act. I<1. 
 
 86. It comes also under the description of a conveyance to defeat or delay the 
 operation of the Bankrupt Act. Id. 
 
 87. Where a debtor made an assignment under a state insolvent law, and a 
 creditor applied to the state court to have the security of the assignees increased, 
 this was not such an assent to the proceedings as estopped him from claiming 
 that the assignment was an act of bankruptcy. Id. 
 
 88. The 3.5th and 39th sections of the Bankrupt Act are not in conflict with 
 respect to this question. The latter section enumerates the various acts which 
 subject a person to involuntary bankruptcy, and that is the main purpose of the 
 section, and the fact that a preference, given by a debtor to a creditor within 
 six months next before the filing of the petition against him in contravention of 
 the terms of this section, is denounced as an act of bankruptcy ; and that the 
 money so paid may be recovered back by the assignee, is not inconsistent with 
 the limitation of the right in the 35th section to cases occurring wi.thin six and 
 four months of the commencement of bankruptcy proceedings. Bec(n v. Brook- 
 mire., N. S. x. 181. 
 
 89. The 3Sth and 39th sections having set up a rule at variance with the com- 
 
102 BANKEUPTCY. 
 
 mon law and with the statutes of most of the states, bv which certain payments 
 and transfers of property are declared void, very properly limit anil define the 
 circumstances within which this new rule should operate. JJean v. Brookmire, 
 N. S. X. 181. 
 
 90. Insolvency as used in the Bankrupt Act, when applied to a trader, means 
 inability to pay his debts as they become due. Toqf v. Martm, N. S. xi. 124. 
 
 91. A transfer by an insolvent debtor with a view to secure his property to one 
 creditor, and thus prevent an equal distribution, is a transfer in fraud of the act. Id. 
 
 92. Assignment by an insolvent of all his property, for benefit of preferred 
 creditors, is an act of bankruptcy. Grow v. Ballard, N. S. viii. 237. 
 
 93. Suspension of payment of commercial paper for fourteen days, and unex- 
 plained, is an act of bankruptcy. Ee Bcdlard, N. S. viii. 237. 
 
 94. Non-payment of promissory notes at maturity, which are not commeroinl 
 paper, no ground for adjudication of bankruptcy, lie Lowenstein, N. S. viii. 237. 
 
 95. A general assignment of all a debtor's property for the benefit of his 
 creditors, is not necessarily a conveyance with intent to delay^ defraud, or hinder 
 creditors. Lnngtey a'. Perry, N. S. viii. 427. 
 
 96. And where such an assignment is made with intent to secure an equal dis- 
 tribution of all the debtor's property among all his creditors, it is not necessarily 
 a conveyance of property with intent to defeat or delay the operation of the 
 Bankrupt Act. Id. 
 
 97. To make such an assignment an act of bankruptcy, it must be made with 
 intent to delay, defraud, or hinder creditors within the meaninir of the statute of 
 13 Eliz., or with intent to defeat or delay the operation of the Bankrupt Act. Id. 
 
 98. Where goods are sold under a judgment taken by confession in a state 
 court, both parties knowing of the insolvency, though the judgment was taken 
 before June 1st 1867, is an unlawful preference under the 35th section. Tradvn.' 
 Bank v. Campbell, N. S. xii. 119. 
 
 99. A defendant having money of bankrupt, delivered it to the sheriff who 
 levied defendant's execution on it and applied it in satisfaction. This constitutes 
 fraudulent preference. Id. 
 
 100. So is taking a check from liankrupt and crediting its amount on the 
 bankrupt's note, the day before taking judgment, hi. 
 
 101. The first clause of the 35th section of Bankrupt Act applies to n party 
 Avho has a claim against or is under liability for tlie liankrupt and receives niimcy 
 by way of preference, the second to one who has no claim and is under no lia- 
 bility, and purchases property of a bankrupt. Gih on v. Wari'en, N. R. xii. 119. 
 
 102. A transfer of firm property from one member of the firm to another, is 
 not an act of bankruptcy. In re Munv, N. S. xii. 461. 
 
 103. Such a transfer is not h. fraud upon creditors, nor does it constitute a 
 preference contrary to the act. Id. 
 
 104. An application of a ptirty for the benefit of the Insolvent Laws of Marv- 
 land is an act of bankruptcy. Van Nostrund \. Carr, N. S. ix. 317. 
 
 105. Bankruptcy of several partnerships composed of same persons — effect of 
 on creditors of each firm. Calcote v. Stanton, 0. S. iii. 49. 
 
 IV. Effect of the Institution of Proceedings. 
 
 106. An assignment in bankruptcy takes effect as if made at the commence- 
 ment of the proceedings. Mays v. Manufaclnrers' Bank, X. S a. 344. 
 
 107. The assignment transfers o'nly the property which the bankrupt owned 
 at the filing of the petition. Id. 
 
 108. The whole world is bound to take notice of the assignment by operation 
 of law. Id. 
 
 109. It is the duty of a court of bankruptcy to see that the property to which 
 a bankrupt is entitled is secured to him, as much as to see that he surrenders the 
 balance to his creditors. Re Slcvenn, N. S. x. 523. 
 
 no. Personal property exempt by the laws of the state where the bankrupt 
 resides and where the petition is filed, will be protected wherever it mav be 
 actually situated. Id. 
 
 111. Personal property of a debtor residing in Wisconsin was attached in 
 Illinois. Pending the attachment the debtor filed a petition in bankruptcv in 
 Wisconsin. The property was exempt by the laws of Wisconsin. Held: 
 
 ( 1 ) . That the property was exempt under the Bankrupt Act and the attachment 
 dissolved. 
 
 (2). The bankruptcy court will not consider whether the property was exempt 
 under the laws of Illinois. 
 
BANKraJPTCY. 103 
 
 (3). The ofBcor in possession of the property under the attachment writ can- 
 not retain tlie property until his fees are paid. His only remedy is by applica- 
 tion to the court to he paid out of funds in the hands of the assignee, il/u^s t. 
 Manufacturers' Hank, N. S. -v. 344. 
 
 112. Where the jurisdiction of a state court has attached, as e. tj. in a bill for 
 an account between partners, and property has passed into the hands of a receiver 
 under its orders, the jurisdiction is not disturbed by a subsequent adjudication of 
 bankruptcy of the parties, and the title of the receiver is superior to that of the 
 assignee in bankruptcy. C ark v. Bininyer, N. S. i.\. 304. 
 
 113. A judge of the Supreme Court has no power by rule in vacation to com- 
 pel an assignee to turn over property, levied on by a sheriff. Nil v. Flemimj, 
 N. S. ix. 508. 
 
 114. The sheriff's remedy is by action of trover, or by proceeding in bank- 
 rupt court. 111. 
 
 115. Adjudication of b.ankruptcy is no excuse for asheriff not sellins property 
 levied on, and not brought into the bankrupt court for distribution. Sharman v. 
 IloweU, N. S. ix. 509. 
 
 116. No valid lien upon property of a bankrupt can be acquired by proceedings 
 in a state court after the filing of the petition in bankruptcy. Stuart v. Mines, 
 N. S. xi. 86. 
 
 117. Nor is an assifjnee in bankruptcy bound to po into a state court to defend 
 a suit commenced against the bankrupt after the filing of the petition. Such an 
 action is as to him a nullity. /(/. 
 
 118. Propertv of bankrupt after filing petition cannot be taken in execution. 
 He Wallace, N." S. viii. 237. 
 
 119. Property of bankrupt exempt by state and bankrupt law, though levied 
 on by United States marshal, cannot be sold after filing petition. Be Griffin, 
 N. S. viii. 237. 
 
 120. When a'tachment is dissolved by commencement of proceedings in bank- 
 ruptcy, the title of the property vests in assignee. Me Houselerger, N. S. viii. 
 237. 
 
 121. Vendor's equitable lien upheld by court of bankruptcy. Re Perdue, N. 
 S. viii. 237. 
 
 122. Judgment-creditors may issue execution and sell their debtor's property. 
 Re Kerr, N. S. viii. 237. 
 
 123. Bankrupts liefore appointment of assignee cannot bo purchasers of the 
 estate. March v. Ilealon, N. S. viii. 238. 
 
 124. Keme covert tr.ader may avail herself of her coverture to defeat debts 
 m bankruptcv, unless she has conformed to statutes governing such traders. Rs 
 Slicliter, N. S. viii. 238. 
 
 125. While adjudication of bankruptcy stands unrevoked, inquiry into valid- 
 itv of petitioning creditor's debt is precluded. Re Falion, N. S. viii. 238. 
 
 126. Liens, by the Bankrupt Law, are held sacred, and the creditor is ex- 
 pressly protected by the 14th, 15th and 20th sects, of the act. Matter of Cainp- 
 hell, N. S. vii. 100. 
 
 127. The bankrupt's final certificate discharges his person and future acquisi- 
 tions ; but the lien-ereditor is entitled to satisfaction out of the property subject 
 to lien. /(/. 
 
 128. The lien of a levy made by a judgment-creditor under an execution from 
 a state court, is not disturbed by the debtor's filing a petition in bankruptcy. 
 Matter of Schnepf, N. S. vii. 204.' 
 
 129. A debt fraudulently contracted is not discharged, and the court will not 
 therefore interfere to prevent the creditor from enforcing his claim by imprison- 
 ment, even during the pendency of the proceedings in bankruptcy, unless such 
 interference be necessary to enable the court to exercise its proper jurisdiction in 
 the case. Re Pettis, N." S. vii. 695. 
 
 130. The Bankrupt Act of 1867 suspends all action upon future cases arising 
 under the insolvent laws of the stares where the laws act upon the same subject- 
 matter and tlic same persons. Commonwealth ex rel, Millingar v. O'Hara, N. S. 
 vi. 765. 
 
 131. The Bankrupt Act suspends all proceedings under the Pennsylvania Act 
 of 12th July 1842. for the abolishment of imprisonment for debt and the punish- 
 ment of fraudulent debtors, where the latter act operates on the same subject- 
 matter and upon the same persons as the former. Id. 
 
104 BANKRUPTCY. 
 
 1 32. An attachment levied more than four months previous to bankruptcy is 
 pooii, and the creditor entitled to judgment thereon. Balcltelder v. Putnam, N. 
 
 , S. xiv. 453. 
 
 133. The Bankrupt Act has not the effect of suspending state laws allowing 
 assignments for the benefit of creditors. Cook et at. v. Rogers, N. S. xiv. 453. 
 
 134. There is no analogy between insolvent laws, correctly so called, and 
 laws which sanction assignments. Id. 
 
 135. A creditor of an assignor for the benefit of creditors cannot attach his 
 goods in the hands of the assignee. Id. 
 
 136. Bankrupt Law does not affect the law for settlement of insolvent estates 
 ' of persons deceased. Hawkins jj- Co. v. Learned, N. S. xiv. 642. 
 
 137. The purchaser of a note from tlie payee, after the institution of bank- 
 ruptcy proceedings against him, takes no title to the note. In re Lake, N, S. 
 xiii. 193. 
 
 138. Proceedings in bankruptcy are notice to all the world. Id. 
 
 139. Where an adjudication of bankruptcy of a partnership firm is made by 
 the District Court, and is brought into the Circuit Court for review under sect. 
 2 of the Bankrupt Act,- the jurisdiction of the Circuit Court is revisory only, and 
 does n(jt extend beyond a review of questions presented to the District Court. 
 United States v. Superior Court, N. S. ix. 297. 
 
 V. Fraudulknt Peepkrences. 
 
 140. Where a deed of trust of a homestead is set aside on the ground. of being 
 a preference, the homestead rights of the fraudulent grantor are restored, and 
 the same result will follow where the preference is surrendered nnder the 2.3d 
 section of the Bankrupt Law. In re Detert, N. S. xiv. 166. 
 
 141. Where a creditor who has received a conveyance which is fraudulent on 
 the ground of being a preference, files a con.sent that all the creditors may share 
 in the property thus conveyed, such consent operates as a surrender of his prefer- 
 ence. Id. 
 
 142. A valid lien will not be divested by creditor receiving a preference, in 
 violation of the Bankrupt Act, Avery v. ilackley, N. S. xiv. 316, 
 
 143. The intention of the bankrupt is the turning-point as to whether a judg- 
 ment was obtained with a view to give a preference. Little, Assignee, v. Alex- 
 ander, N. S. xiv. 519. 
 
 144. A judgment-note for value given four months before the proceedings in 
 bankruptcy, is not in fraud of the Bankrupt Law. Sieek v. Turner's Assignee, N. 
 S. xiv. 520. 
 
 145. Mere passive non-resistance in an insolvent debtor will not, under the 
 bankrupt laws, invalidate a judgment where there is no defence. Jd. 
 
 146. Though the judgment-creditor knew of his debtor's insolvency, it is not 
 any violation of the Bankrupt Law. Id. 
 
 147. The giving of a warrant of attorney to confess judgment for a considera- 
 tion of equal value passing at the time, is not in fraud of the Bankrupt Law. 
 Clark, Assignee, v. Iselin, N. S. xiv. 520. 
 
 148. The creditor may enter judgment when he pleases. Id. 
 
 149. If the creditor has issued execution, he may receive accounts due the 
 debtor, and cash, up to the proceedings in bankruptcy. Id. 
 
 150. To vender a mortgage void under the 35th section, it is not necessarv that 
 the debtor knew or believed himself insolvent. Hall v. Wager, N. S. xiii.' 120. 
 
 151. It is a logical sequence that when an insolvent gives a mortgage to one 
 creditor he does it to give him a preference. Id. 
 
 152. The Act of 1841 declares void preferences made bv a partv contemplating 
 bankruptcy, the Act of 1867 includes those, by a party being inso'vent. Jd. 
 
 153. Every act that tends to defeat equal distribution should be construed 
 strictly against an insolvent. /(/. 
 
 1 54. What constitutes insolvency should be determined by the general custom 
 of insolvent's place of business. Id. 
 
 155. A mortgage given to a creditor who had reasonable cause to believe the 
 debtor insolvent is a fraud upon the act. Id. 
 
 156. The question is, had the creditor "reasonable cause to believe"— not 
 what he did believe. Id. 
 
 157. When partners are insolvent they hold the partnership effects in trust for 
 firm creditors and cannot by transfer defeat this trust. In re Cook &■ Gteasan N. 
 S. xiii. 121. ' 
 
BANKRUPTCY. 105 
 
 158. A sole by One partner to his copartner Aviien the firm is insolvent is pre- 
 sumptively fraudulent. In re Cook ^ GIfdon, N. S. xiii. 121. 
 
 159. Such transfer is void under the 35th section of the Act. Id. 
 
 VI, Rights and Duties of Assignee. 
 
 160- Assignee may maintain suit to collect assets in any District Court. 
 Goodall, Assiijnfei v. Tuttle, N. S. xiii. 192. 
 
 161. Such ri;.'ht though not expressly conferred is implied from grant " to col- 
 lect assets." Id. 
 
 162. Congress must have intended to provide for the complete administration 
 of the bankrupt system, and as there is no authority given to Circuit Courts to 
 entertain such suits, it must be in the District Courts. Id. 
 
 163. Legislature adopting statute of another state is presumed to have adopted 
 the judicial construction thereof. Id. 
 
 164. Covenant in mortgage to keep the premises insured for benefit of mort- 
 gagee is valid against assignee in bankruptcy as a lien on insurance-money. In 
 re Sands Ale Brewing Co., N. S. xiii. 193. 
 
 165. Such covenant runs with the land and is notice to creditors. Id. 
 
 166. Bankrupt trustee, duty to prove for money due on account of, by him- 
 self. Orrelt y. Corsir, O. S v 320 
 
 167. How far assignee bound by decree in pending suit against the bankrupt, 
 under Act of 1841. CUviland v. Boenim ct id., N. S. ii. 183. 
 
 168. Duties of an accountant well defined. In re Bunting, 0. S. vii. 638. 
 
 169. The present Bankrupt Law leaves it optional with the assignee in bank- 
 ruptcy whether or not to pursue p.operty of the bankrupt which has been pledged 
 or mortgaged for the security of the bankrupt's debts. If he is of opinion that 
 anything may be saved to the estate by paying the debt so secured and taking 
 the property pledged or mortgaged, it is his duty to do so ; but if he thinks other- 
 wise, he should abstain from the redemption of the property, and in such case, 
 unless the creditor claim to have the property pledged or mortgaged applied upon 
 the debt, and to prove his claim for the balance, or to surrender the property to 
 the assignee and prove for his whole debt, there is no occasion to bring the mat- 
 ter into the- proceedings in bankruptcy. The pledgee or mortgagee of property, 
 not brought into the proceedings in bankruptcy, may pursue his remedy upon the 
 pledge or mortgage in the state courts, the Federal courts having no exclusive 
 jurisdiction over property of the bankrupt which is not brought into the proceed- 
 ings against him. Bunk of Louisville v. Bank of Newark, N. S. xiv. 281. 
 
 170. A landlord is entitled to his rent out of the proceeds of a sheriff's sale, in 
 preference to the assignee in bankruptcy. Barnes'x Appeal, N. S. xiv. 461. 
 
 171. Whenever an execution will carry a valid sale over the assignee, it carries 
 with it the claim of landlord for rent. Id. 
 
 172. An assignee in bankrupt -y may maintain an action to set aside a fraudu- 
 lent conveyance by the debtor before he was adjudged a bankrupt, even though 
 the conveyance was before the passage of the Bankrupt Act. Bradtshaw, As>,ignee, 
 ^c. v. Klein, N. S. vii. 5115. 
 
 173. Such action is not limited to conveyances made within six months of tho 
 filing of the petition. The general language of the 14th section of tho Bankrupt 
 Act is not limitea in this respect by the 35th section. Id. 
 
 174. Qinere, Whether under the present Bankrupt Law of tho United States, 
 goods of the estate in the hands of the assignee are distrainable for rent'! lie 
 Appold, N. S. vii. C24. 
 
 175. If they are not, it is because they are not less in legal custody than goods 
 taken in execution ; and under the equity of any laws of the respective states 
 which, like the English statute 8 Ann. c. 14, entitle a landlord to payment uf 
 rent accrued, not exceeiling one year's, out of the proceeds of goods sold under 
 an execution, the landlord, who is prevented from distraining, may demand such 
 an amount of rent from the assignee in bankruptcy. Id. 
 
 176. Such a rule of decision is not inconsistent with apparently contrary deci- 
 sions under the English system of bankruptcy. /(/. 
 
 177. Though rent, as such, may not accrue during the proceedings in bank- 
 ruptcy, an equal charge ibr storage may, for a certain period, under certain 
 circumstances, be incurred by the assignee. Id. 
 
 178. Money paid by a debtor to his creditor more than four months before thq 
 commencement of proceedings in bankruptcy by or against such debtor, cannot 
 be recovered back from such creditor by the assignee of the bankrupt, although 
 
106 BANKHUPTCY. 
 
 tlie crctlitor knew that such payment was made to him by way of preference, and 
 that the debtor was insolvent at the time of makin;; such payment, and that the 
 same was made in contemplation of insolvency or bankruptcy. Bean v. Brook- 
 mire, N. S. X. 18). 
 
 179. The two clauses of the 35th section of the Bankrupt Law differ in thi.=, 
 that the first clause is limited to a creditor or a person having a claim against 
 the bankrupt, or who is under liability for him, and who receives money or pro- 
 perty by way of preference ; and the second clause applies to the purchase of 
 property of the bankrupt by any person who has no claim against him and !■! 
 under no liability for him. Irl. 
 
 180. The word "payment " in the first part of the second clause of this sec- 
 tion is used either inadvertently or in a loose sense with respect to some of the 
 acts mentioned in this clause, but is intentionally omitted from the list of trans- 
 actions which are declared void under this clause of the section. Id. 
 
 181. A sale by an assignee under the Bankrupt Act, will not pass the real 
 estate to the vendee discharged of the dower of the bankrupt's wife. In re Au- 
 gier,'N. S. X. 190. 
 
 182. The assignee in bankruptcy is not a judicial officer, his setting apart ex- 
 empt property is not conclusive. Fililei) v. Barr, N. S. x, 79.5. 
 
 183. The assignee's setting apart land as exempted, does not divest the lien 
 of judgment clear of exemption. Id. 
 
 184. May be substituted as appellant in the Supreme Court, where the as- 
 signor becomes bankrupt after appeal taken. Herndon v. Howard, N. S. ix. 
 576. 
 
 1P5. The landlord in Virginia has a lien on property of the tenant, being and 
 remaining upon the demised premises, for one year's rent accrued and to accrue, 
 in preference to any mortgage, deed of trust, or judgment ; and this lien is to be 
 satisfied by the assignee in preference to such other liens, as well as in prefer- 
 ence to the claims of general creditors. Mutter of Wi/nne, Bankrupt, N. S. ix. 
 627. 
 
 186. Process to enforce the judgment of one state to another is mesne procen!^, 
 within the meaning of the 14th section of Bankrupt Act of 1867, vesting the 
 property of bankrupt in the assignee. Randall ^ Co. v. McClain, Assignee, N. 
 S. ix. 636. 
 
 187. Real estate cannot he allotted or set apart by the assignee to a bankrupt 
 under section 14 of the Bankrupt Act, even though the personal propertv, ex- 
 cluding the articles exempted by the state law, be less than the amount which 
 the assignee thinks should be allowed the defendant. Matter of Thornton, N. S. 
 viii. 42. 
 
 188. Money may he so allotted to the bankrupt. Jd. 
 
 189. Judge cannot interfere, where assignee is chosen by the greater part in 
 number and value of creditors, lie Grant, N. S. viii. 241, 
 
 190. Court will not sanction solicitation of votes for assignee. Me N. 
 
 S. viii. ,241. ' 
 
 191. Register can con-^y estate to assignee where there is no " opposin" in- 
 terest." jn re Wijlie, N. S. viii. 241. , " 
 
 192. Property fraudulently disposed of may be recovered by assignee in sum- 
 mary manner. N<all v. Beckwith, N. S. viii. 241. 
 
 193. Cannot recover property from creditor in an action of trover unless 
 fraud in the transfer he shown. Waclfworth v. Ti/ler, N. S. viii. 242. 
 
 194. A chattel mortgage executed by one co-partner under seal, and assented 
 to by the other by parol, is valid. Hawkins v. Bank, N. S. viii. 242. 
 
 195. The right of an assignee to recover a debt due the bankrupt prior to the 
 bankruptcy, does not depend upon the instrument of assignment. Zantzinger v, 
 nibble's Assignee, N. S. xii. .02. 
 
 196. A copy of the assignment, certified under the seal of the court, is ad- 
 missible in evidence to prove the assignee's right to sne. Id. 
 
 197. Where the cause of action and judgment obtained by a bankrupt were 
 prior to the date of his assignment, and the judgment was increased by order of 
 court, after the assignment, the judgment passed to the assignee. Jd. 
 
 198. The signature of the judge is not essential to make an assignment valid, 
 if some equally formal mode is adopted sanctioned by the seal of court. Id. 
 
 199. The proceeds of a sale of bankrupt's goods beinji^in the hands of a bank, 
 
BANKRUPTCY. 107 
 
 the nssifrnce mny proceed against the hank, although the hank has given the 
 sheriff n certificate of rlepnsit. Traders' Bank v. CainphelJ, N. S. xii. 119. 
 
 200. An assignee claiming a fund as the hankrupt'.s propei-tywhicii was trans- 
 ferred before the bankruptcy, must proceed under the 2d clause of the 3d section. 
 Smith V. y/iwon, N. S. xii. 187. 
 
 201. An assignee in bankruptcy cannot interfere with the possession of goods 
 by the officer of a state court under an execution, or with the possession oif any 
 person claiming either the absolute property or the right of possession to enforce 
 a lien. M.irshnll t. Knox, N. S. xii. 630. 
 
 202. Xor can such officer or person be brought within the jurisdiction of the 
 Court of Bankruptcy hy summary process under rule to show cause. His rights 
 can only be adjudicated in a plenary suit at law or in equity for that purpose. 
 Id, 
 
 203. The attachments on mf-sne process which are dissolved hy an adjudication 
 of bankruptcy are those which only become perfected liens by the judgment which 
 may ensue in them. Id. 
 
 204. A writ of provis!onal seizure for rent, in Louisiana, is in the nature of an 
 execution, and gives a lien on goods which is not discharged by a subsequent ad- 
 judication of bankruptcy of the tenant. Id. 
 
 205. The sheritf under a writ of provisional seizure took a tendnt's goods into 
 possession for rent. Tenant then filed a petition and was adjudged a bankrupt. 
 His assignee took a rule on the sheriff and the lessor to deliver possession of the 
 goods, and the Bankruptcy Court made tlie rule absolute, and refused to allow an 
 appeal. The lessor then filed a hill in the Circuit Court, and after sale of the 
 goods by the assignee, a supplemental bill, praying a reviev/ of the proceedings, 
 an account and damages. Held, that the Bankruptcy Court had no jurisdiction 
 to make the rule ; that this was an orisrinal bill of which the Circuit Court had 
 jurisdiction, and that an appeal properly lay from the decree of the Circuit Court 
 to this court. Id. 
 
 206. The measure of damages is the full value of the goods and all the taxable 
 costs of the litigation, the whole, however, not to exceed the amount of rent due. 
 Id. 
 
 207. The property of a bankrupt in the hands of his assignee is not liable to 
 attachment under the laws pf a state, Niwindn v. Fi.-^her, N. S. xii. 727. 
 
 208. Under the Act of March 2d 1867, the District Courts of the United States 
 have exclusive jurisdiction. Jd. 
 
 209. Under the United States Act of 1S41, no title passes on a sale and con- 
 veyance of a bankrupt's land by his assignee, unless it has been made in pursu- 
 ance of an express order of court to that effect, whether general or special, and 
 it seems that the recitals in the assignee's deed will not be sufficient evidence of 
 such an order. Clevdnnd v. Boprum, 0. S. vii. 144. 
 
 210. So where the land is held adversely at the time of the decree in bank- 
 ruptcy, a sale by the assignee more than two years after that date will pass no 
 title by force of the limitation in the 8th section of the act. Id. 
 
 II. PUACTICE. 
 
 211. Where A. being indebted to B., and before insolvency, sold the bitter an 
 estate, and credited him on his hooks with the amount of such indebteilricss, and 
 after insolvency in a settlement with B. deducted the amount of such indebted- 
 ness from the purchase-money, it was held that the payment was really made 
 at the time of sale, that it was a legitimate transaction, and not a fraudulent 
 preference within the meaning of the Bankrupt Act. Re Isaac Eosenfdd, Jr., 
 N. S. viii. 44. 
 
 212. Whcre.specification charges that a particular debt was paid after the pass- 
 age of the Bankrupt Act, proof is inadmissible that otber debts were paid after 
 the passage of said act, but not the particular debt specified. Id. 
 
 213. Insurance made upon house and furniture in pursuance of covenants in 
 lease, is not a fraudulent preference Id. 
 
 214. Bankrupt not liable to arre-t for a claim that would be discharged by an 
 adjudication of bankruptcy. lif Kimba'l, N. S. viii. 236. 
 
 215. Original papers referred to in deposition and annexed thereto, cannot be 
 withdrawn from the files. He McMan, N. S. viii. 238. 
 
 216. Creditor may petition court to be paid a judgment out of funds in hands 
 of assignee. Re Sni.th, N. S. viii. 233, 
 
108 BANKRUPTCY. 
 
 217. Two or more pnrtners may ho ndjurlsecl bankrupts upon the petition of 
 one or more of them. He Crockett, N. S. viii. 238. 
 
 218. Omission to publish notice of meelinj^ in one of tlie papers designated, 
 also failure to state in warrant the nnmcs, residences, ami amount of debts, 
 sufficient irregularity to set aside proceedings. Re Hall, N. S. viii. 238. 
 
 219. Bankrupt may be called upon at anytime to submit to an examinr(tion. 
 Re McBrien, N. S. viii. 238. 
 
 220. Order for examination always made on petition for final discharge, by 
 the court ; other examinations must be on petition of assignee or creditors. Re 
 Brandt, N. S. viii. 238, 239. 
 
 221. Creditor must apply by petition or affidavit for order to examine bankrupt 
 nnder section 26th. Re Adams, N. S. viii. 239. 
 
 222. Each creditor may examine under section 26th, but examination regultited 
 by register. Id. 
 
 223. Bankrupt must answer questions relating to property in which he might 
 have an interest. Re Bonested, N. S. viii. 239. 
 
 224. That part of the 14th section of the Bankrupt Act which adopts the state 
 exemption laws in force in 1 864 as the measure of property to bo exempted under 
 proceedings in bankruptcy, is uniform in its operation among the states, and is 
 therefore constitutional. In re Beckerkord, N. S. x. 57. 
 
 225. By the exemption lava's of Missouri, in force in 1864, a homestead may 
 bo set apart to a debtor out of a leasehold in real estate, or where such lease- 
 hold is not susceptible of division he may retain $1000 of the proceeds of it. Id. 
 
 226. Courts of bankruptcy will recognise and give effect to all liens, whether 
 national or state, according to their priority of date, except strict maritime lien«, 
 which take precedence in accordance with their character. Matter of Uio'.ght 
 Scott, N. S. ix. 349. 
 
 227. Whore a creditor made a motion for an order to examine a bankrupt 
 before the first meeting of creditors, and the bankrupt objected that no such 
 order could be made at such time, this raised an issue of law which the register 
 should have certified to the court. Mailer of Patterson, N. S. vii. 26. 
 
 228. But if the bankrupt argues and submits the question to the judgment of 
 the register, he waives his right to a certificate, and if, after a decision against 
 him, he submits his points and requests an adjournment to the court, he is too 
 late. After a deoisiou by the register there is noissue to certify. Id. 
 
 229. A creditor has a riKlit to prove liis claim at any time after the commence- 
 ment of proceedings, and having done so has a I'ight to an order for the examina- 
 tion of the bankrupt under section 26," without waiting for the meeting of 
 creditors. Id. 
 
 230. If depositions in proof of claims are filed before the day appointed for the 
 meeting of creditors, the register is not bound to notify the bankrupt. Id. 
 
 231. Notwithstanding the filing of such a deposition and entering the claim 
 on the list, the register may still, under section 23, at the first meeting of cred- 
 itors postpone the proof of the claim and exclude tbe creditor from voting in the 
 choice of an assignee. Id. 
 
 232. The court has, under section 22, full control at all times of nil debts 
 and all proofs of debts, even after the depositions in proof have been filed ; and 
 the bankrupt can, at the first meeting of ci-editors, object, nnder section 23, to 
 the validity of, and the right to pi'ove any debts, without regard to the time the 
 depositions in proof were filed. Id. 
 
 233. A creditor holding security, although he has proved his debt under sec- 
 tion 22, cannot vote in the election of an assignee. Matter of Davis ^ Son, N. 
 S. vii. 30. 
 
 234. The creation of a debt by fraud is not a groutid for refusing a discharge 
 to a bankrupt. Matter of Rosenfild, N. S. vii. 618. 
 
 235. A specification stating that debt had been created by fraud is not a good 
 specification, and will be stricken out on motion. Id. 
 
 236. A bankrupt cannot be examined for the purpose of showing that the debt 
 was created by fraud. Id. 
 
 237. A fraudulent conveyance made, or a fraudulent preference given, before 
 the passage of the Bankrupt Act, are neither of them good grounds upon which 
 to oppose a discharge. Such a conveyance or preference does not come within 
 the terms of section 29 of said act, and a specification alleging such a convey- 
 ance or preference will be stricken out on motion. Id, 
 
Bx^NKRUPTCY. 109 
 
 238. The rUfference explained between the meaning of the following phrases in 
 section 2it, viz. : "^Vn<■^' the pnssRge of this act," anJ " subsequently to the pass- 
 age of this act." Miiller of Rosertfdd, N. S. vii. 61S. 
 
 239. By the term " fraudulent preference," used in item nine of section 29, is 
 meant only a preference in fraud of the Bankrupt Act, that is, contrary to its 
 provisions. Id. 
 
 240. Where a member of a late copartnership files his individual petition un- 
 der the Bankrupt Act, and inserts in his schedules debts contracted by said co- 
 partnership, and there are no copartnership assets to be ailministered, he will be 
 entitled to he discharjred from all his debts, individual as well as copartnership 
 Re Ahbc, K. S. vii. 824. 
 
 241. It is not necessary, in such a ease, to make the other partners parties 
 to the proceedings, or to have them brought in under General Order No. 18. 
 
 242. The cases of WilUnm H. Little.. Bankrupt Register 74, and of Alexander 
 Frear, Id. 201, commented upon. Id. 
 
 243. In a proceeding against a debtor as an involuntary bankrupt, the order 
 under section 40 of tlie Bankrupt Act, requiring the debtor to show cause why 
 the prayer of the petition tluit he be deolareil liankrupt should not be granted, 
 may be served personally outside the territory of the jurisdiction of the court 
 making it. titunrt v. Iihtcs, N. S. xi. 86. 
 
 244. That order need not be served by a marshal or officer of the court, but 
 may be served by any one authorized by the solicitor for the petitioner. Id. 
 
 24.1. The rule is the same where one or more of several partners institute 
 proceedings in bankruptcy voluntarily, in which certain meml)ers of tlie partner- 
 ship refuse to Join ; the parties so refusing are proceeded against as involuntary 
 bankrupts, and service on the order to show cause why they should not be de- 
 clared bankrupt may be made on them, outside the territorial jurisdiction of 
 the court, and by a person other than the executive officer of the court. Id. 
 
 246. Accordingly, where such an order, made in the District Court of the 
 United States for the Southern District of New York, in a case where the applica- 
 tion was by certain members of a partnership against certain other members 
 refusing to join in the application, was served personally on the debtor in New 
 Jersey, by a person other than the executive officer of the court, but authorized 
 by the solicitors for petitioner: Held, such service was correct as to place and 
 mode. Id. 
 
 247. Bankruptcy when pleaded in bar may be avoided by showing fraud in 
 procuring the discharge. Culcote v. Stanton, 0. S. iii. 50. 
 
 218. The general rule in the computation of time within which an act is to be 
 done is to exclude the first day and incluile the last ; this is the rule prescribed 
 by the Bankrupt Act, unless the last day happens to fall on Sunday, in which 
 case that day is excluded also. In all other cases, Sundays are counted as other 
 days. Citizens^ Bank v. Ober, N. S. x.. 36. 
 
 VIII. Pkoperty Exempted. 
 
 249. Under the present bankrupt law of the United States and the state exemp- 
 tion laws incorporated with it, the exemption of such property, real or personal, 
 of the appraised value of S30U, as a bankrupt in Pennsylvania may elect to retain 
 as exempt under the laws of the state, is not included in hut is additional to the 
 exception from the operation of the Bankrupt Law, of such necessary and suitable 
 articles, not exceeding in value 8500, as with due reference, in their amount, to the 
 bankrupt's family, condition and circumstances may bo designated and set apart 
 by the assignee, subject to the court's revision. He David Rtilh, N. S. vii. 157. 
 
 250. But this exception to the full value of $500, ought not to be allowed in 
 all cases, without discrimination or measure. Id. 
 
 251. Under the provision of the 14th section of the Bankrupt Law of 2d 
 March 1867, excepting from the operation of the act the property of debtors ex- 
 empted from levy and sale by the laws of the state, a vested expectant interest 
 of a bankrupt in a sum of money payable at his own death, or at the death of 
 another person, may, in Pennsylvania, be set apart for the use of the bankrupt; 
 so, however, that its appraised present value, estimated as in cases of life in- 
 surance, does not exceed .':-30(), or that the bankrupt does not receive more than 
 $300, if the value thus estimated exceeds that amount. Bennett's Case, N. S. 
 viii. 34. 
 
110 BANKRUPTCY. 
 
 252. Insolvent having sold his homestead cannot move his family into his store 
 and hold that as exempt. In re Wrighl, N. S. xiii. 193. 
 
 253. He can sell his homestead, but cannot shift it to the prejudice of his cred- 
 itors. Id. 
 
 254. The provision of the Bankruptcy Act adopting the exemption laws of the 
 several states has been sustained on the ground that it enacted a uniform rule that 
 such property should be subject to its operation for the payment of debts as was 
 linble to judicial process for the same purpose in the several states. In re 
 Deckert, N. S. xiii. 624. 
 
 255. The Amendatory Act of March 3(1 1873, so far as it departs from this 
 rule and attempts to exempt property specified in the state laws, in a different 
 manner or with different effect from that of the laws themselves, is a violation of 
 the constitutional requirement of uniformity, and therefore void. Id. 
 
 IX. Discharge. 
 
 256. Debts due t-o the United States are not barred by the bankrupt's certificate 
 and discharge. United States v. Herron, N. S. xiv. 192. 
 
 257. No general words in a statute divest the government of its rights. Id. 
 
 258. Billto annul bankrupt's discharge for fraud. Edwards v. GMs, N. S. 
 vi. 503. 
 
 259. Where at the time of the application for a discharge, the assignee has 
 neither received nor paid any moneys on account of the estate, the case is to be 
 regarded as one in which no assets have come into his hands. Mailer of Dodge, 
 N. S. vii. 438. 
 
 260. Any creditor of a bankrupt may oppose the discharge, whether he have 
 • proven his debt or not. Matter of Sh'pnrd, N. S. vii. 484. 
 
 261. Expenditures incurred by bankrupt while insolvent in support of his 
 family, in the absence of evidence as to their character is no ground for refusal 
 of discharge. Be Isaac Hoserfeld, Jr., N. S. viii. 44. 
 
 262. Servants' wages paid after passage of Bankrupt Act, as necessary family 
 expenses, and payments made to counsel for services " rendered and to be 
 rendered," when made without fraud, are no grounds for refusal of discharge. 
 Id. 
 
 263. Petition to have decision of District Court refusing discharge on account 
 of fraud, reviewed, denied. Re Ilobnwn, N. S. viii. 236. 
 
 264. Must be applied for within one year of adjudication. Re Wil'molt, N. 
 S. viii. 239. 
 
 265. Under Sect. 29, it is only where bankrupt can apply for his discharge in 
 less than six months, that he must within a year. Re Greenfield, N. S. viii. 239. 
 
 266. Will not be refused for omission of names of creditors from schedule 
 with their consent and knowledge. lie Needham, N. S. viii. 239. 
 
 267. Kcfused where bankrupt swore falsely that he had no assets. Re Rath- 
 bone, N. S. viii. 239. 
 
 268. Creditor secured by deed of trust of land, must proceed according to 
 rule, in opposing discharge. Re McVei/, N. S. viii. 241. 
 
 269. The concealment of bankrupt's effects, or a false affidavit to the inven- 
 torv, must be shown to bo intentional in order to preclude discharge. Re Wyatt, 
 N."S. viii. 239. 
 
 270. Refused where the proof of fraudulent concealment of property was not 
 overborne by positive testimony. Re Goodridge, N. S. viii. 239. 
 
 271. Payment of attorney's fees is not such a preference as will prevent dis- 
 charge of bankrupt. Re Sidle, N. S. viii. 240. 
 
 272. Assignment of a claim, made to secure pre-existing indebtedness and 
 when bankrupt was insolvent, is ground for refusing discharge. Re Foster, N. 
 S. viii. 240. 
 
 273. Payment of one creditor in full by person not contemplating bankruptcy, 
 will not prevent discharge. Re Locke, N. S. viii. 240. 
 
 274. The bare denial of bankrupt, insufficient to show that assignment was 
 not made in contemplation of bankruptcy. Re Brodhead, N. S. viii. 240. 
 
 275. llefused, on failure to keep books. of account, whether with fraudulent 
 intent or not. Id. 
 
 276. The intent of non-keeping of books immaterial. Re Newnan, N. S. viii. 
 240. 
 
BANKRUPTCY. Ill 
 
 277. Vagne nnd general specifications of fraud not allowed in opposition to 
 discharge. Re Hansen, N. S. viii. 240. 
 
 278. Opposition to discharge on tlio ground of debt being fraudulently^ created, 
 insufficient. Re Vimdy, N. S. viii. 240. 
 
 279. Will not be withheld on the ground that debts were contracted in a fidu- 
 ciary character. Re Tracij, N. P. viii. 241. 
 
 280. Specifications in opposition to discharge may be filed nunc pro tunc, in 
 proper cases. Re Grefe, N. S. viii. 241. 
 
 281. Creditors not having proved their debts may oppose. Re Boutelle, N. S. 
 viii. 241. 
 
 282. A surety on nn appeal bond is no longer liable, where the principal is 
 discharged in bankruptcy. Odell v. Wooten, N. S. viii. 318. 
 
 283. The discharge of the debtor in bankruptcy, after breach of an insolvent 
 bond, is no defence to the sureties on the bond. C aflin v. Cogun, N. S. ix. 
 512. 
 
 284. A discharge under the Bankrupt Act of 1867, by a bankruptcy court hav- 
 ing jurisdiction, when properly pleaded in bar to a suit in a state court, whether 
 of law or equity, is conclusive, and cannot bo attacked for fraud in obtaining it. 
 Hudson V. Binghnm, N. S. xii. 637. 
 
 285. A di.schargo will not prevent accreditor who obtained a lien upon a fund 
 by attachment prior to the commencement of proceedings, from taking a decree 
 Id rem against the fund. Stoddard v. Locke, N. S. xi. 52. 
 
 286. In order to avoid a defendant's discharge under the United States Bank- 
 rnpt Act of 1867, on the ground that the schedule verified by oath did not con- 
 tain a statement of his debt to the plaintiff, and that the latter had no notice of 
 the proceedings in bankruptcy, and did not prove his claim, it must appear that 
 the omission was fraudulent and the afiidavit wilfully false. Syinonds v. Barnes, 
 N. S. xi. 421. 
 
 287. A discharge under the Bankruptcy Act cannot be invalidated in a state 
 court, on the ground of concealment of assets. Parhr v. Afivood, N. S. xi. 720. 
 
 288. Debts due a principal by a factor for goods sold on commission are not 
 discharged by the discharge in bankruptcy. L?nke v. Booth, N. S. x. 743. 
 
 289. Wilful omission from schedule of a vested remainder, will vitiate dis- 
 charge. Edwards v. Gibbs, N. S. vi. 503. 
 
 290. The recovery of a judgment upon a contract induced by fraud, is not a 
 debt created by fraud within the act, and a discbnrge is a good defence to an 
 action upon such judgment. Palmer v. Preston, N. S. xiii. 51. 
 
 291. If bankrupt's assets are fifty per cent, of the debts proved, he is entitled to 
 his discharge without the assent of his creditors. In re Kuhiej, N. S. xiii. 193. 
 
 X. Proof of Debts. 
 
 292 A party purchasing claims against a bankrupt in good faith should not 
 be ileprived of participation in the estate. In re Strochan, N. S. xiii. 120. 
 
 293. To enable him to prove he should take an assignment. Jd. 
 
 294. Such claims should be proven as of date of adjudication. /J. 
 
 295. The act should not be construed so as to prevent a debtor from making 
 every eflTort to extricate himself. Jd. 
 
 296. A creditor who has proved his debt has a right to examine a bankrupt 
 under section 26 of the act, although his debt may appear to be barred by the 
 Statute of Limitations of the state in which the proceedings are instituted. Mat- 
 ter of Ray, N. S. vii. 283. 
 
 297. A debt barred by the Statute of Limitations is not " due and payable " 
 so as to be provable in bankruptcy, but as there is no limit.atinn in the Bank- 
 ruptcy Act whose operation is co-extensive with the limits of the United States, 
 no claim can bo held barred unless it be shovin that it is not recoverable in any 
 part of the United States. Id. 
 
 298. A debt barred by the Statute of Limitntions of the state where the bank- 
 rupt resides cannot be proved against the estate in bankruptcy. Matter of Kings- 
 let/, N. S. vii. 423. 
 
 299. The entry of a debt upon the schedule by a bankrupt is not such an 
 acknowledgment or new promiae as will revive the debt. Id. 
 
 300. A debt against a bankrupt's estate may be proven before a United States 
 commissioner, although the bankrupt and creditor both reside in the same judi- 
 cial district. Mutter of Sh'pard, N. S. vii. 484. 
 
 301. A debt barred by the Statute of Limitations of the state in which the 
 
112 BANKEUPTCY. 
 
 hfiTikvupt resides may still be proven against his estate in bankruptcy. Matter 
 of Shefiard,}^. S\n. 484. 
 
 302. A creditor who, after making his deposition to prove his debt, retains 
 possession of the deposition and does not allow it to pass into the hands of the 
 assignee in bankruptcy, is not a creditor who has proven his debt. Id. 
 
 303. A judgment for a fine imposed as a penalty for crime is not a debt within 
 the meaning of the Bankrupt Act, and not being included in the ."ipecial provi- 
 sions allowing certain claims to he proved nn debts, it cannot be proved against 
 the estate of a bankrupt. Matter of Sutherland, N. S. viii. 39. 
 
 304. A creditor of a bankrupt liolding a mortgage as .security for his debt, 
 must prove his debt, and then apply to court to liave security sold. lie Bittell, 
 N. S. viii. 242. 
 
 30,'). A debt created by fraud is provable. Re Bundle. N. S. viii. 242. 
 
 306. A judgment obtained on breacli of promise to marry is a debt provable, 
 and is barred l^y discharge. Ee Sidel, N. S. viii. 242. 
 
 307. Judgment obtained after adjudication of bankruptcy is not provable 
 against estate of bankrupt. Ee Williams, N. S. viii. 242. 
 
 308. Action to recover provable debt must be stayed until discharge is deter- 
 mined on. Ee Eoienberj;, N. S. viii. 242. 
 
 309. A creditor who has a mortgage of a bankrupt's homestead, as security 
 for his debt, may prove his debt and vote for an assignee. Matter of J. E. Still- 
 well, N. S. xi. 706. 
 
 XI. Distribution. 
 
 310. Where there are both individual and partnership creditors of a bankrupt, 
 but the assets arc individual only, though mainly consisting of goods purchased 
 by the bankrupt from the partnership on its dissolution prior to the b.nnkruptcy, 
 and being principally the same goods in the purchase of which the partnership 
 debts bad originated ; the partnership creditors will be entitled to be paid pari 
 passu with the individual creditors. Matter of Jrwett, N. S. vii. 291. 
 
 311. Wliere A., one of two partners, sells bis interest in the concern to his 
 co-partner, B., taking his notes therefor, and B. becomes bankrupt, leaving some 
 of the notes unpaid, A. cannot receive a dividend from the assignee until all the 
 partnership debts have been paid. Id. 294. 
 
 312. A bond fide transfer of partnership effects by one member of the partner- 
 ship to another vests the title in the transferree as his separate estate. Matter 
 of iJyrne, N. S. vii. 499. 
 
 313. Where there are both joint and separate debts, proved in a bankruptcy 
 on a separate petition, the joint creditors are not entitled to participate in the dis- 
 tribution of the assets until the separate creditors are paid in full. Id. 
 
 314. The exception in the general rule of law, which allows joint creditors to 
 receive dividends pari passu with the separate creditors in cases where there is 
 no joint estate and no solvent partner, is inoperative under the Bankrupt Law of 
 1867. Id. 
 
 315. A. transferred his interest in partnership effects to his co-partner B., on 
 the 2d of October, on his (B.'s) promise to pay the firm debts ; without buying 
 any new stock or making any effort to continue the business, B. filed his petition 
 ill bankruptcy on the 7th of October : held, that the tran.sfer was accepted by B. 
 in contemplation of filing his petition in bankruptcy, and that the transfer was 
 void as a fraud on the creditors of the partnership. Id. 
 
 316. A creditor of a partnership firm holding notes both of the firm and of 
 the individual partners for a firm debt, is entitled to prove in bankruptcy his 
 claims on the firm note against the joint estate, and on the individual notes 
 against the separate estates of the makers. Mead v. Nat. Bank of Fuijetttville, 
 N. S. vii. 818. 
 
 317. By the English practice, .such a creditor must elect which estate he will 
 prove against, but whether such a rule is proper under our Bankrupt Law, dubi- 
 tatur. Id. 
 
 318. A state court cannot interfere with the distribution of bankrupt''s assets. 
 Ee Bridgman, N. S. viii. 243. 
 
 319. The obligee of a joint and several bond of members of a co-partnership, 
 is entitled to dividends out of the assets of the individual bankrupt members of 
 the firm. Ee Bigelow, N. S. viii. 243. 
 
 320. Debts secured by a deed of trust, made without fraud and without violation 
 of any provision of the Bankrupt Act, are to be preferred in payment to the 
 
BANKRUPTCY— BASTARD. 113 
 
 clfiims of general creJitors in the distribntion of the proceeiis of the hnnkrupt 
 estate by the assignee m bankruptcy. Mutter nf Wynne, Btinknipt, N. S. ix. 627. 
 
 321. Seiiib'e, that, though uniler the statute of the state (Virginia), a deed 
 of trust takes effect as to creditors only JVom and after the i-coording thereof, 
 such a deed will take effect from that time, though such recording be after the 
 passage of the Bankrupt Act, if it be before the tiling of the petition in bank- 
 ruptcy. /(/. 
 
 322. Qiicrc, To whom property fraudulently omitted from schedule belongs. 
 Eihcurds v. GMs, N. S. vi. 503." 
 
 XII. Register. 
 
 323. JIust certify conformity or non-conformity on presentation to him by 
 bankrupt of oath required by sect. 29. Re Pulver, N. S. viii. 241. 
 
 324. jMliv fill up blank, issue summons, &c., and proceed the same as the judge 
 when there is no controversy. He Brandt, N. S. viii. 243. 
 
 32.5. Has power to order the payment of fees and expenses out of funds in the 
 hands of assignee. He Lane, N. S. viii. 243. 
 
 326. Must exercise proper legal discretion to prevent unnecessary and unrea- 
 sonable delays. Re Hijiiian, N. S. viii. 243. 
 
 XIII. Costs. 
 
 327. Compensation of counsel for petitioning creditors in involuntary bank- 
 ruptcy, is taxable as part of tlie costs of tlic proceedings, and payable out of the 
 fund "realized. ^l/aHcr o/" O'i/oni, N. S. viii. 113. 
 
 32?, But the principle does not extend to give petitioning creditors a right to 
 contribution from the other creditors in case of failure Do realize a sufficient fund 
 to pay expenses and counsel fees. Id. 
 
 329. B.mkrupt summoned by creditor as a witness is not entitled to witness 
 fees. Re McXair, N. S. viii. "243. 
 
 330. Party for whom services are performed by the officers of the court, must 
 pay the fees incident to such servic.es. Re Mcali/, N. S. viii. 243. 
 
 331. Travel by United States marshal as messenger to make return, is neces- 
 sary, and five cents a mile is proper charge therefor. Re Talbot, N. S. viii. 243. 
 
 332. Charge of ten cents per folio for preparing notices is not proper. Id. 
 
 333. An item for attendance is improper charge. Id. 
 
 334. A party may serve a subpoena on his witnesses, and , in cases where he 
 succeeds in the trial recover his costs therefor. Gordon v. Stott, N. S. vii. 749. 
 
 333. In cases of involuntary bankruptcy and a trial by jury, a docket fee of 
 $20 is taxable in favor of the counsel of the successful party. Id. 
 
 336. In proceedings in voluntary bankruptcy a docket fee is not taxable, 
 except in those voluntary cases, when under the 31st sect, of the act the court 
 is authorized to direct a trial upon specifications of objections to the bankrupt's 
 discharge. Id. 
 
 337. The word trial in the Bankrupt Act means a trial by jury. Id. 
 
 BAR OF FRANCE. 
 
 Its antiquity. Address by M. Berryer. 0. S. i. 252. 
 
 BARRATRY. 
 
 1. Warrantv against constructive total loss resulting barratry. Green ■,', Ins. 
 Co., N. S. V. "188. 
 
 2. Where the conduct of a pilot is free from fraud, negligence or violation of 
 law, he.is not guilty of barratry, though the owner of the vessel has been in- 
 jured. Germania Ins. Co. v. Sherlock, N. S. xiv. 584. 
 
 BARRISTER. See ATTOKSEr. 
 
 BASTARD. 
 
 1. Money paid on affiliation order is solely for support of child. Drake r. 
 Sharon, N. S. vii, 571. 
 
 2. Complaint not maintainable in Massachusetts for support of bastard born in 
 another state. Grunt v. Barnj, N. S. iv. 437. 
 
 3. Mother of, no power in Ohio to settle for or release liability of putative 
 father. Perkins v. MoMeij, 0. S. iv. 633. 
 
 4. Statutes legitimating bastard during lifetime of putative parent valid, but 
 void if passed after his death so far as they would affect the succession to his 
 property. See loot note to Killam v. Killum, N.S. i. 32, .and cases there cited. 
 
 5.* The status of legitimacy or illegitimacy is determined by the death of the 
 
lU BASTARD— BEQUEST. 
 
 parent and cannot be subsequently affected. Note to Kdlamv. Killam, N S. 
 i. 32. 
 
 6. A child born in eifrht months after marriarje -n-ill be presumed to be lepiti- 
 mate, although, when horn, it has all the physical appearances of a full growu 
 and natural child ; and proof of a statement by the mother that she had no con- 
 nection with her husband before marriage, and that her reputation for chastity- 
 was bad at the time of her marriage, and that for some months previously 
 thereto she had been intimate with other men, if competent, is sufficient to rebut 
 this presumption. Phillips v. Allen, N. S. i. 317. 
 
 7. May not be legitimized to divest an estate already descended, but the legis- 
 lature may cure tlie taint of a bastard's blood for the purpose of future inherit- 
 ance. KiUam V. Killam, N. S. i. 18. 
 
 8. Where one has been legitimated and dies intestate, his land passes under 
 the intestate laws of the state, to his natural parents for their joint lives, and is 
 not affected by the Act of 185.5, which provides that the estate of a bastard, dying 
 unmarried and without issue, shall pass to his mother absolutely. !d. 
 
 9. Money paid by the putative father of an unborn bastard to the superintend- 
 ent of the poor upon a compromise, may be recovered back upon its appearini; 
 that the supposed mother was never pregnant. Jiechl v. Hicks, N. S. iii. .56. 
 
 10. Illegitimate children entitled to share real estate of mother equally with 
 legitimate. Opdijlce's Appeal, N. S. v. 255. 
 
 11. A bond was given by the father of an illegitimate child to the town of 
 East Hartford, where the child was born and had its settlement, to save the town 
 from expense for its support ; the condition reciting the fact that the child was 
 chargeable to East Hartford, and providing that the bond should be void if the 
 obligor should save said town harmless from all expense hv reason of the child 
 becoming chargeable thereunto. The town of East Hartford was afterwards 
 divided by the act of the legislature, and the part on which the child was born 
 and lived was set off as a new town by the name of Manchester, to which a por- 
 tion of another town was afterwards annexed. The act incorporating the new 
 itown imposed upon it the burden of supporting all paupers having their ordinary 
 iresidence on the territory constituting the town. The father afterwards neglected 
 to support the child, and it became a charge upon the town of Manchester on its 
 incorporation. 2. That the neglect of the obligor to save that town from expense 
 in the support of the child, was a breach of the bond. 3. That a suit could be 
 maintained on the bond, in the name of the town of East Hartford, for the bene- 
 fit of the town of Manchester. East Hartford v. Bann, N. S. i. 245. 
 
 BEACH. 
 
 1. A strip of sandy beach, mainly valuable for its sand as an article of mer- 
 chandise, was owned in fee by the plaintiffs, and the defendant claimed a pre- 
 scriptive right to take sand ad liUlum therefrom. Held, that evidence that the 
 defendant as one of the public, and not as incident to an estate in other lands, 
 had taken sand ad lihitmn from the beach, did not tend to prove an individual 
 prescriptive right. Mfrwin v. Whf.ehr, N. S. xiv. 601. 
 
 2. The word " beach" has no such inflexible meaning that it must denote land 
 between high and low-water mark. Id. 
 
 BEAST. 
 
 The owner of a beast prone to commit trespasses is liable for its injurious acts 
 without regard- to the degree of care bestowed in controlling it. ■ Rossell v. 
 Coltom, 0. S. vii. 405. 
 
 BELLIGERENTS. 
 
 1. A private soldier of the rebel army may rely upon the belligerent rights con- 
 ceded t« the late so-called Confederacy, as a defence in a civil suit for property 
 taken according to the usages of war. Hughes v. Litse.xj, N. S. v. 148. 
 
 2. The doctrine of belligerent rights gives no power to the enemy to take with 
 impunity the property of a citizen of an invaded country. Lucas v. Bruce, N. 
 S, iv. g.s. 
 
 3. Belligerent ships — purchase of by citizens of the United States — opinion of 
 attorney-general upon. 0. S. iii. 577. 
 
 BEQUEST. 
 
 1. A bequest in a will, "I leave the whole of said fund in the hands of my 
 executor, to bo by hira applied to the support of missionaries in India, as it is 
 
BEQUEST— BILL OF LADING. 115 
 
 my flesire to liid, &c., ihe same to bo applied under the direction of the General 
 Assembly's Board of Missions of the Presbyterian Churcliin the United States," 
 is void for uncertainty. Board vf Mhslons v. ilcifaster, O. S. iv. 526. 
 
 2. A testatrix being possessed of cash in the house, a balance at a saving 
 bank, for the taking out of which she had given notice, and money secured on 
 two promissory notes payable on demand, by her will bequeathed " all ready 
 money."' Held, that the terms " ready money " incluiled the cash in the house 
 and the balance at the savings bank, but not the promissory notes. Re PowaU s 
 Tnist. 0. S. vii. 311. 
 
 3. A bequest for the founding, establishing and upholdinc; an animal sanitory 
 institution within a mile of cither Westminster, Southwark or Dublin, was held 
 to be a good charitable bequest within the meaning of the statute of Elizabeth. 
 The University of London v. Yar7'mv, 0. S. vi. 169, 
 
 4. As to when bequests for charitable uses are good see Saltonslall v. Sandtrs, 
 N. S. vi. 184. 
 
 BERRYEE, M,, address by, on the French Bar, 0, S, i, 252. 
 
 BETTING. 
 
 Either depositor of a bet on a race may maintain an action against the stake- 
 holder for the deposit before the race, Cleveland v. Wo'f, N. S, x, 403. 
 
 BIGAMY. 
 
 1. To constitute the crime of bigamy, there must be a valid marriage subsist- 
 ing at the time of the second marriage. McReynoUh v. The State, N. S. vii. 
 736. 
 
 2. A marriage between slaves was, in legal contemplation, absolutely void ; 
 but if the parties, after their manumission, continued to cohabit together as 
 husband .ind wife, it was a legal assent and ratification of the marriage, and if 
 ■while such marriage exist.*?, one of the parties marries another, it is bigamy. Id, 
 
 3. The indictment must show the apprehension of the prisoner in the county. 
 It is not sufficient to state it in caption. Houwr v. The People, N. S. vi. 119. 
 
 4. What is sufficient evidence of prior husband's death to excuse second mar- 
 riage. See Ecf). V. Brigijs, 0. S. v. 703. 
 
 5. Proof of Scotch law of marriage. — Upon an indictment for bigamy, it 
 appeared that the first marriage took place in Scotland. The sister of the woman 
 stated that she was present at the ceremony which was performed by the minister 
 of a congregation in a private house ; but whether he was of the kirk or not she 
 did not know, that she herself had been married in the same way, and that people 
 in Scotland were always married in private houses, and the prisoner and her 
 sister afterwards lived together as man and wife : Held, not evidence of the law 
 of Scotland, sufficient to support a conviction. Reg. v, Poveij, 0. S. i. 373. 
 
 BILL IN CHANCERY, 
 
 Where a bill makes charges of fraud which are not established at the hearing, 
 the bill will be dismissed, notwithstanding it states other grounds upon which 
 relief might have been granted, if not blended with the allegations of fraud. 
 Mount Vernon Bank v. Stone, O, S, i. 339, 
 
 BILL OF CREDIT. 
 
 Confederate treasury notes were not bills of credit within the prohibition of 
 the Constitution of the United States. Matter of Milner, N. S. vii. 371. 
 
 BILLS OF EXCEPTION. 
 
 1. Should be to each instruction specifically. Harvey v. Ti)le,r, N. S. iv. 767. 
 
 2. As to when exception to judge's charge need not be specific. Sawijer v. 
 Chambers, N. S. v. 191. 
 
 3. A motion for a new trial is no waiver of exceptions. United States v. Dash- 
 iell, N. S. vi. 442. 
 
 4. The hill of exceptions taken upon the trial of a cause, by one of the parties 
 only, is made a part of the record by the court, and either party appealing in 
 error, or prosecuting a writ of error, may assign errors thereupon. Wdliams v. 
 Bowdon, 0. S. i. 379. 
 
 BILL OF LADING. 
 
 1. How far may be explained by parol. Note to Strong v. Raihmy Co., N. S. 
 vi. 690. 
 
 2. "Damage or deficiency in quantities specified, if any, to be deducted from 
 
116 BILL or LADING. 
 
 ' charges by consignees," in a bill of lading, is not a warranty of safe delivery. 
 Price V Hartshorn, N. S. x. 796. 
 
 3. While a bill of lailinj;, in so far as it is a contract, cannot be explained by 
 parol, yet being .t receipt it may, in a suit between the original parties. The 
 Lady Franklin,S.S.is.. W\. 
 
 4. Assignment of bill of lading conveys title to cargo. Tdden v. Minor, N. 
 S. xiii. .51. 
 
 5. Where goods put on board a ship to be carried by sea, for hn-e, under a bill 
 of lading which contains only the usual exception, viz^ : " tlie act of God, tlie 
 queen's enemies, fire, and all'other dangers and accidents of the seas, rivers and 
 navigation, &e., excepted," arc dnmaged by rats during the voyage, it is no de- 
 fence to an action by the owner of the goods that tbe master had kept cats on 
 board. Semhle, it would be a defence that rats had made a liole in the ship, 
 through which the water came in and injured the goods. Luvuroni v. Drurij, 0. 
 S. i. 174. 
 
 6. A merchant loaded a Spanish vessel at C, chartered to deliver the cargo m 
 London. The vessel put into an intermediate port disabled, whereupon the cap- 
 tain, without .iny communication with the merchant or his agents at that port, 
 though aware of their existence, entered into a cliarter-party with tlie captain of 
 another vessel to take the cargo to its destination, which the charter-party de- 
 scribed to be 470 tons, the captain of the disabled vessel agreeing to load the other 
 and pay freight at a rate per ton exceeding the rate of iVeight ibr which the first 
 vessel was chartered. The vessel was loaded, and a bill of lading in accordance 
 with tlie terms of the charter-party was signed by the captain of the second ves- 
 sel. On the arrival of the cargo at its d:stination it M-as discovered to be only 
 344 tons, and the merchant offered to pay freight on that amount at the rate 
 agreed on by the charter-party, which having been refused, he paid for 470 tons 
 under protest, and brought an action for money had and received to rccuver ihe 
 diffisrence : Held, 
 
 First, that the merchant was entitled to recover. 
 
 Secondly, that the master had no authority to bind the merchant to pay the 
 freight mentioned in the bill of lading. 
 
 Thirdly, that the merchant was not liable in an action upon the charter-party 
 for the neglect to provide a full cargo. 
 
 Fourthly, that the representation in the charter-parly that the cargo amounted 
 to 470 tons did not amount to a warranty. 
 
 Fifthly, supposing tliat representation had been a false and fraudulent one, the 
 merchant would not be accountable for it. Graij v. Gihhs, 0. S. v. 738. 
 
 7. Where a ship is detained in port by ice, and her cargo is damaged before 
 the season allows her to proceed, though she subsequently delivers it to the con- 
 signees, a shipper cannot, without rescinding the contract, sustain a libel in rem 
 for a breach of the bill of lading, until the term for the performance of the con- 
 tract has expired. Jones v. The F.oatiny Zejihijr ; Mytinger, ^c., v. The same, 0. 
 S. vii. 494. 
 
 8. Fire occurring on the wharf after goods are landed, is not within the ex- 
 ception of damages of the seas, in the ordinary bill of lading. Manufacturing 
 Co. V. The Barque Tangier, 0. S. vi. 504. 
 
 9. Where a common carrier of merchandise received from a consignor a box, 
 and received therefor a bill of lading in which the name of the consignee alone 
 appeared, and the box, upon tender to the consignee was refused, and was sub- 
 sequently stored by tlie carrier with a regular warehouseman, from whom it was 
 stolen : Held, that this did not constitute negligence on the part of the carrier, 
 and that he was not liable for the loss. Williams v. Holland, 0. S. ix. 701. 
 
 10. Where a shipper consigns goods to a factor and endorses and sends for- 
 ward bills of lading for them, and on the faith of such bills of lading the 
 factor makes advances, — this was a symbolical delivery and the factor's lien 
 attached. ■ Davies v. Bradley, 0. S. v. 232. 
 
 11. Where a person delivers goods to a carrier and receives a bill of lading 
 expressing that the goods are received for transportation subject to the conditions 
 on the hack of the bill, by one of which the carrier's liability is limited to a cer- 
 tain rate per lb., this constitutes a special contract by the parties, and the carrier, 
 in the absence of proof <,f negligence is only liable at the rate agreed upon. 
 Farnham v. C. ^ A. Railroad Co., N. S. vii. 17a. 
 
 12. Where the consignee of the cargo of a vessel at sea, sells the cargo and 
 
BILL OF LADING— BILLS AND NOTES. 117 
 
 delivers the bill of latllnD:, properly inilorsed, to the purdirtscr, the sale is valid 
 imrt passes the complete title to the goods. Audcnreid v. Uandall, N. S. vii. G59. 
 
 13. Consignee \.i not liable for deinurrage, if bill of lading contains no provi- 
 Moii for its payment. Gugc v. Morse., N. S. vi. 710. 
 
 14. A bill of Lading silent as to the place of stowage, imports that it is to be 
 under deck. 'The Dilatmre, N. S. xii. I2G. 
 
 15. The contract between the shipper is that which is contained in the bill of 
 ladins delivere<l to the shipper. 7'Ac Thames, N. S. xii. 197. 
 
 16. The explosion of a boiler on a steam vessel is not a " peril of navigation" 
 within tlie term as used in the exception in bills of lading. Propeller Mohawk, 
 N. S. ix. 1-23. 
 
 17. The liability of a carrier under a bill of lading continues until the merchan- 
 dise is safely delivered to the consignee at the port of discharge. Vose v. Allen, 
 0. S. ii. 563. 
 
 BILL OF REVIEW. 
 
 1. A bill of review should be filed in the court where the original cause was 
 heard, but the objection to the jurisdiction of another court is waived if not taken 
 bv a demurrer or plea. Gaucjh v. Greenlaws, 0. S. vii. 591. 
 
 "2. A bill of review will not lie, unless there bo an error apparent in the body 
 of the decree, without further examination or new matter hath arisen in time 
 after the decree, or new proof came to light after the decree made, which could 
 not possibly have been nsed at the time the decree passed ; and an infant de- 
 fendant, jf represented by a guardian ad litem, will be subject to this rule. Id. 
 
 BILLS AND XOTF.S. 
 
 I. What is a Nkgotiadle Ixstrfment. 
 
 1. Warrants ('rawii by the proper officers of a municipal corporation on the 
 treasurer thereof, arc not hills of exchange, but are, in legal effect, the promis- 
 sory notes of the corporation. Clark v. Citij of Des Moines, N. S. vi. 146. 
 
 2. Note for a sura certain, payable in Michigan " with current exchange on 
 New York," is a negotiable promissory note. Johnson v. Frisbie, N. S. vi. 6.31. 
 
 3. Contingency, which does not destroy negotiability. Sinilie v. Stevens, N. 
 S. vi. 713. 
 
 4. Instrument payable "on return of this certificate," negotiable. Id. 
 
 5. Otherwise, when providing for return of a separate instrument. Id. 
 
 6. PUintifTs right to sue in his own name in such case. Id. 
 
 7. Inaction by payee against the maker of the following instrument. Two 
 months after date I pi-omise to pay to T. K. L. or order, 99/. 15s. for value re- 
 ceived — in the corner was the name of the plaintit"!', and his acceptance was 
 written across the instrument. Held, that it might be treated as a bill of ex- 
 cliange. L'oijd v. Oliver, 0. S. i. 40. 
 
 8. To constitute a valid undertaking as an acceptance, the undertaking must 
 in New York be in writing, and signed by the acceptor. The writing must in- 
 dicate that the party sought to be charged as acceptor, intended to take upon him- 
 self the obligations and assume the liabilities of an acceptor. Oneida Bank v. 
 NarlbiU, O. S. i. 219. 
 
 9. A bill drawn by a manufacturing corporation in the country upon an indi- 
 vidual in New York city, who is the treasurer and financial agent of the com- 
 pany, and presented for acceptance to the drawee, who writes across the face of 
 the bill, " accepted, payable at American Exchange Bank," and signs it Clay- 
 ville Mills, by E. C. Hamilton, Treastiicr (Clayville Mills being the drawers), 
 is not accepted by the drawee. Id. 
 
 10. A bill of exchange accepted without any name of drawer or payee, is 
 nevertheless a regular instrument by the Law Merchant; and the holder may, 
 on a sale thereof, fill up the blanks for the benefit of the purchaser ; in good 
 faith, and when so filled, the bill will stand as though so made originally. 
 ffaijdonv. Field, O.S.i. 421. 
 
 il. What form of words constitute a bill of exchange. Martin v. Baileij, 0. 
 S. iv. 632. 
 
 12. Distinction between a bill and check defined. Id. 
 
 13. An instrument by which tlie maker promises to pay to the order of another 
 a specified sum, at the store of the former — or in goods, on demand, for value 
 received, is a negotiable promissory note. Ilosttaller v. Wilson, N. S. i. 634. 
 
 14. An instrument by which the makers promise to pay to the order of the 
 
118 BILLS AND NOTES. 
 
 payees, at a time and a place named, a specific snm of ilioney ■n-ith cnrreni 
 exchange on New York, is a negotiable promissory note. Campbell, J., 
 dissenting. Smith v. Kendall, 0. S. ix. 7.54. 
 
 15. Where discharged by insolvent laws. See Insolvent. 
 
 16. Due-bills, endorsed by initials, valid, and holder may fill them np as 
 payable to himself. Weston v. Mi/ers, N. S. iv. 704. 
 
 17. The contract implied bylaw from a blank indorsement of a negotiable 
 note before maturity by the payee, is as certain and absolute as if written out in 
 full, and parol evidence is not admissible to contradict it. Dale v. Gear, N. S. 
 xii. 14. 
 
 18. A bill drawn at sight, is due and payable on presentment to the drawee. 
 Trash v. Martin. O. S. iii. 444. 
 
 19. Bills payable in terms on demand, bills having no time of payment 
 specified, and bank checks are well settled to be due and payable instantly on 
 presentment. Id. 
 
 20. Note payable " subject to the policy" not negotiable. Bank v. Btanchard, 
 N. S. iii. 567. 
 
 21. Instruments amounting to. Cori/ v. Davis, K. S. iii. 439, Watsony, 
 Evans, Id. 440. 
 
 22. Instrument "payable out of my separate property and estate" is a pro- 
 missory note. Shillen v. Richmond, N. S. vii. 251. 
 
 23. Signed by mark may be good, and if signature not denied, it is held 
 admitted under rule of court. Willoughhij v. Mouttom, N. S. vii. 251. 
 
 24. Certificate of deposit payable on presentation is negotiable. Bank v. 
 Bank, N. S. vii. 758. 
 
 25. Note for sum certain, "and such additional premium as may become 
 due," not negotiable. Marrctt v. Ins. Co., N. S. vii. 449. 
 
 26. An obligation payable to a certain person, "his attorney, executor, 
 administrators or assigns," though called a bond in New York, is held not to be 
 a specialty but a negotiable instrument, and governed by the rules applicable to 
 commercial paper. Blalce v. Supervisors of Livinc/ston Co., N. S. xi. 393! 
 
 27. A note of the following tenor, " Nathaniel O. Winslow, Cr. By labor 
 ICJ days, a $4 per day, $67, good to bearer," is a good negotiable promis- 
 sory note for $67. Ihtssey v. Winslow, N. S. xi. 529. 
 
 28. Any member of a firm has authority to bind it by indorsing negotiable 
 paper payable to the firm. Barrett v. Russell Sr Flint, N. S. xii. 399. 
 
 29. A promissory note though secured by mortgage is still negotiable. Lougen 
 v. Carpenter, N. S. x. 650. 
 
 30. A paper promising to pay with interest a sum specified and acknowledged 
 to be due "as soon as the crops can be sold or the money raised from any other 
 source," is neither in form nor efliect a promissory note, yuncz v. Dautel, N. S. 
 xiii. 706. 
 
 31. It is a promise to pay upon the occurrence of either of the events, or after 
 the lapse of a reasonable amount of time. Id. 
 
 32. What is a reasonable time is for the court to determine ; five years is more 
 than a reasonable time. Id. 
 
 33. A note, " Twelve months after date [or before if made out of the sale of 
 a machine] I promise to pay," &e., is negotiable. Bmst v, Steckman, N. S. xiii. 
 706. 
 
 34. To be negotiable a note must be payable at a fixed time, and must not 
 depend upon a contingency. Id. 
 
 35. It is negotiable if payable ceHainly at a fixed time, though subject to a con- 
 tingency under wliich it may be due earlier. Id. 
 
 36. Indorsement of negotiable paper, with the words " for collection ."restrains 
 its negotiability. Sweeneij v. Easter, N. S. iv. 115. 
 
 37. An internal revenue stamp is no part of a note. Ilallock v. Jaudin, N. S. 
 viii. 188; and see Green v. Lownj, N. S. viii. 317 ; Tobeyv. Chipman, N. S. Vii! 
 04, and Wigham v. Pickett, N. S. viii. 701. 
 
 38. A writing in these words, "Due C. & B. seventeen dollars, valne re- 
 ceived. F. L.," does not import an express promise to pay, but is merely an 
 acknowledgment of indebtedness, from which the law implies a promise to pav. 
 It is not therefore a " promissory note not negotiable," within the statute, which 
 fixes the limitation to actions upon obligations of that description. [Two' judges 
 dissenting.] Currier v. Lockwood, N. S. xiv. 12. 
 
BILLS AND NOTES. IID 
 
 "9. TVhero the ilebtor, after tht ilebt was hnrred by the statute, said to the 
 •ci-cditor, "I will };ive you a ton of coal for the note," which offer was not ac- 
 cepted, it was he'd, that it was a mere otfer of compromise, and not such an 
 acknowlcdsrinent as would take the case out of the Statute of Limitations. Cur- 
 r'tpr V. Lockwoo(i, N. S. xiv. 12. 
 
 41). Where the debtor at another time saiil to the creditor, " Have you that 
 note? I wish to settle it," the creditor replyin;:, " It is in the hands of S. and 
 you can settle with him," to which the debtor rejoined, "The note is outlawed 
 and "rood for nothin};, and you can fro aheail if you want to ;" which declaration 
 the court below held not to be sufficient evidence of a new promise, it was held, 
 that the court committed no error of law in so deciding. Id. 
 
 41. The compromise of a doubtful claim is sufficient consideration for a 
 promissory note. Keefe T. Vogle, N. S. xiv. .53. 
 
 42. A promissory note payable on demand, with interest, is a continuing 
 security ; an indorser remains liaWe until an actual demand, and (he holder is 
 not charfreable with neglect for omitting to make such demand within any par- 
 ticular time. Merrit v. Todd, N. S. i. 58. 
 
 4.3. A check on a bank is in substance a bill, and is governed by the same 
 rules. Salt Springs Bank v. Suracuse Savings Jnst., N. S. xi. 591. 
 
 44. The liability of a defendant as the maker of a note must be determined by 
 the instrument. Slurdivant v. Hull, N. S. xi. 529. 
 
 45. It may now be regarded as settled law tliat bonds of a certain class are 
 to be deemed negotiable. This is not true, of course, of ordinary bonds which 
 are only assignable in equity. The doctrine of negotiability has been extended 
 to exchequer bills, government bonds, and other municipal bonds, such as those 
 of towns and counties. Railroad bonds are likewise decided to be negotiable. 
 N. S. i. 304, 305. 
 
 46. A note "for value received without interest, waiving the right to appeal, 
 and of all valuation, appraisement, stay and exemption laws," is negotiable. 
 Z mmn-man v. Rote, N. S. xiv. 193, 
 
 II. Indorsement, Acceptance. 
 
 47. A joint owner of a note cannot be charged as indorsee by his co-owner, 
 nor by any one except he he a liondfide holder for value, and took it before ma- 
 turity. Norton V. Edgar, N. S. xiii. 51. 
 
 48. A purchaser from a joint owner who is authorized to sell his co-owner's 
 interest, takes the whole interest, but whether he can charge such co-owner as 
 indorser, depends on the facts. Id. 
 
 49. If a joint owner sells, without his co-owner's consent, the purchaser ac- 
 quires only the seller's interest. Id. 
 
 5(J. An indorser of an accommodation note is a creditor of the drawer, within 
 the 4th sect, of Statute of Frauds. PheljJi v. Morrison, N. S. xiii. 56. 
 
 51. Though the statutes of Michigan require an acceptance to be in writing 
 they do not prescribe in what form it shall he. Peterson v. Hubbard, N. S. xiii. 
 452. 
 
 52. Anything written by the drawee indicating an intention to accept is suffi- 
 cient. Id. 
 
 53. An indorsement of a partial payment on an order, made by the party pay- 
 ing, is an acceptance. Id. 
 
 54. A note given by F. to L, to reimburse him for the payment of a bill of 
 exchange on which he was indorser for F.'s benefit, is not illegal hecau.se the 
 bill was paid in Confederate money. Lyon v. liobtrtson, N. S. xiii. 453. 
 
 55. The relative rights and duties of parties who indorse a promissory note 
 for the accommodatiion of the maker, are the same as in the case of a Ijusiness 
 note. A subsequent indorser who pays it, may recover of a prior indorser the 
 •whole amount paid, and not merely a contribution, as in the case of sureties. 
 Kirsdmer v. Conklin, N. S. xiii. 471. 
 
 56. And it makes no difference that the indorsers both knew that each was an 
 accommodation indorser, so long as there was no actual agreement between them 
 to share the liability. Id. 
 
 57. Nor in the absence of such an agreement, that the object of the indorse- 
 ments was to enable the maker to get a loan at bank upon the note, and that they 
 were to operate together as a security to the bank. Id. 
 
 58. Where a bank presents bills to the drawers with an accompanying ticket 
 representing that the bank held bills of lading to cover them, the drawers will 
 
120 BILLS AND NOTES. 
 
 be liable on their acceptance tbouph the bHls of lading turn out forpreries, unless 
 the bank represented them as j;ood. Baxter v. (Shupman, N. S. xiii. 587. 
 
 59. A parol agreement that an indorsement i"! without recourse to indorser is 
 no defence against a bond fide holder without notice. Skinner v. Church, N. S. 
 xiv. 53. 
 
 60. An extension of time to the maker if the rights of the indorser are pre- 
 served will not discharge the latter. Uagey v. nill, N. S. xiv. 115. 
 
 61. An indorsee of overdue paper takes it subject to equities connected with it, 
 but not to set-oif generally. Long v. Rhawn, N. S. xiv. 116. 
 
 62. A draft drawn in one state and accepted in another is to be regarded as a 
 contract made in the state where it is drawn. Tilden v. Blair, N. S. xiv. 522. 
 
 63. It is accordingly to be governed by the laws of the state where it is drawn. 
 Id. 
 
 64. If not usurious in the state where it is drawn, a bond fide purchaser may 
 recover the full value of it. Id. 
 
 65. A purchaser of such ii draft, though a broker, is not a lender of money on 
 it, and may recover the full value of it. Id. 
 
 66. An indorser of a promissory note may limit his liability by adding to his 
 name the words " without recourse," at the time he indorses the note, and if he 
 has done so, parol evidence of the fact is admissible, although the note was after- 
 wards indorsed by another person, and the indorsee took it without knowing that 
 the limitation was applicable to the first indorser. Fitchburg Bank -v. Greenwood, 
 N. S. i. 318. 
 
 67. Acceptance admits the genuineness of the drawer's signature, and entitles 
 a bond fide holder to recover, notwithstanding the signature is a forgery. Salt 
 Springs Bank v. Si/racuae Savings Inst., N. S. xi. 591. 
 
 68. An indorsement of a note need not be stamped. Pugh v. McCormick, N. 
 S. xii. 198. 
 
 III. CoXSIDEBATIOir. 
 
 69. Tlie issuing of a policy, by an insolvent company, is a good consideration 
 for a note given for the premium, if the insolvency was not known at the time. 
 Lester v. II «W), N. S. iii. 62. 
 
 70. One who signs as principal a promissory note, which has already been de- 
 livered and .lecepted, is not liable thereon, without proof of a new consideration. 
 Gri'en v. Shepherd, N. S. iii. 62. 
 
 71. Note payable on alternative condition. Consideration to give a scholarship 
 in another institution. Genesee College v. Bodge, N. S. iii. 570. 
 
 72. There is no rule of law independent of intention, by which an alteration 
 not affecting ultimate liability makes the instrument void. Kounlz v. Kennedy, 
 N. S. X. 193. 
 
 73. The transfer by one partner to another of the assets of the firm, is a good 
 consideration lor a promissory note. Springer v. Dwyer, N. S. x. 344. 
 
 74. A proujissory note given for the purchase of slaves, after the president's 
 proclamation ofl861, is void. Carson v. Hunter, N. S. x. 64. 
 
 75. Where a note is given in consideration of the sale of land to be conveyed 
 upon payment of the money, the payee cannot recover without tender of a con- 
 veyance. Deitrich V. Franz, N. S. x. 64. 
 
 76. When the acceptance is conditional the drawee is not liable until condition 
 is fulfilled. Liggett v. Weed, N. S. x. 600. 
 
 77. A note given for the sale of land, to which the Indian title is not ex- 
 tinguished, is void. Vickrog v. Pratt, N. S. x. 53^. 
 
 78. Under plea of want of consideration to a promissory note, the defendant 
 may offer testimony of any want of consideration, and plaintiff may prove any. 
 Miller v. Brumbaugh, N. S. x. 403. 
 
 79. Where goods are sold to N. & B., and K.'s note taken for the price, the 
 subsequent surrender of N.'s note furnishes no consideration for taking B.'s, and 
 suit on the latter must fail. Gammon v. Plaisted, N. S. xii. 254. 
 
 80. In Kentucky, negotiable paper, unless discounted at a bank, passes subject 
 to all equities existing between the parties. Where it is given for the price of 
 land, the vendor executing a deed, with full covenants of warranty of title, the 
 land being at the time encumbered by a mortgage or vendor's lien, "the purchaser 
 will be entitled, in equity, to set off the amount of the mortgage against his 
 notes, if before the notes became due the vendor has become insolvent. And the 
 vendee, having said to one who had the notes lor sale, that they " were all right," 
 
BILLS AND NOTES. 121 
 
 will not preclude him from making such defence. Thompson r. Tenley, N, S. 
 xiii. 99. 
 
 81. A note given by n clerk in a post-oHice to the postmaster for tlie payment 
 of the amount embezzleil by the clerk, is not I'ouinled on » consideration illeijal 
 and void as against public polic.i , thouiih postmaster agreed not to prosecute if 
 he got the note. Bibb v. Hitchcock, N. S. xiii. 390. 
 
 82. Taking a note for an antecedent debt is an agreement for delay until its 
 maturity, and therefore a sufficient consideration. Thompson v. Gray, N. S. xiv. 
 437. 
 
 S3. The note of a married woman for an antecedent debt of her husband is 
 good . Id, 
 
 84-. The Act of 1869 of Ohio, relating to notes given for patent right, does 
 not cover notes given for machines built under letters patent, nor for the agency 
 to sell them. State of Ohio v. Peck, N. S. xiv. 579. 
 
 85. Discounting of new note and payment of former one thereby extinguishes 
 old debt and creates a new one. Fisher v. Marvin, jST. S. vi. 507. 
 
 86. An accommodation draft has no validity until it reaches the hands of a 
 bond fide holder for value, and if the first transfer is tainted with usury, it will 
 be void in the hands of any subsequent holder. Howe v. Potter, N. S. xi. 459. 
 
 87. The mere offer to return the consideration on the ground of there being 
 misrepresentation, and a demand of tlie draft, will not make it an accommoda- 
 tion draft, nor prevent a bond fide purchaser from recovering the full amount. 
 Id. 
 
 88. The maker of a note is liable to a bond fide indorsee, if he is guilty of 
 negligence in using reasonable care to inform himself of its contents. Nebeker 
 v. Catsinger et al., N. S. xiv. 580. 
 
 89. Executing a negotiable note without reading it is negligence. Id. 
 
 90. A note given for a precedent debt is primd facie security only, or an ex- 
 tension of credit. Wilbur v. Jernegan, N. S. xiv. 392. 
 
 9 1 . Yet if the note is given and received as absolute payment, the debt is paid. 
 Id. 
 
 92. The defence of, without consideration, should be sustained by evidence which 
 leaves no reasnoable doubt. Punch v. Williams, N. S. xiii. 647. 
 
 93. Notes secured by mortgfli;e to be paiil from proceeds of sale in order of 
 their maturity. Thompson v. Field, N. S. vi. 253. 
 
 94. A note given to a creditor to induce him to sign a composition deed with- 
 out the other creditors' knowledge is illegal and void. Winn v. Thomas, N. S. 
 xiv. 702. 
 
 95. The mortgagee in a mortgage made to secure a negotiable promissory note 
 for liquors sold in violation of law, may convey a good title thereto by assign- 
 ing the same, with the note, before its maturity to one who takes them ibr a val- 
 uable consideration without notice. Taylor v. Page, N. S. iii. 121. 
 
 96. Taking of accommodation note from payee for less than its lace is usurious 
 even without notice. Whitten v. Hayden, X. S. iii. 69G. 
 
 97. A written acknowledgment that the subscriber had received a promissory 
 note, and that the maker was to have certain shares of stock when issued, is not 
 a contract for the future sale of the stock, but recognises the shares as the con- 
 sideration of the note. Lope Iron ]Vorks v. I/olden, N. S. -i.. 668. 
 
 98. Married woman liable on her note given for cattle to stock farm, for her 
 separate use. Batchelder v. Sargent, N. S. vii. 253. 
 
 99. A., being indebted to B. for illegal consideration gives a mortgage to B.'s 
 creditor, C., who has knowledge of the illegality — the mortgage is void. Baker 
 V. Collins, N. S. iv. 505. 
 
 100. It is no defence to a note, that it was given for a horse which the seller 
 knew was to be used in the "rebel service." Giilrim v. Looney, N. S. x. 197. 
 
 101. An agreement by borrowers to pay to the lender one-third of the profits 
 of their business as co -partners, in addition to the legal interest, for the use of 
 money loaned, i< usurious and void. Su>^et v. Speitc.% N. S. i. 378. 
 
 102. And a promissory note, given by the borrowers, in performance of such 
 an agreement, being void, furnishes no consiileration for a note given by third 
 persons to the lender, on the purchase of the original note by them. Id. 
 
 103. A partv who gives up to his debtor his note or check past due and dis- 
 honored, for the note or check of a third person, is not in the same position as 
 
122 BILLS AND NOTEIS. 
 
 before the transaction, and is therefore a holder for value of the check received. 
 McBride V. Dorman^ N. S. vi "36. 
 
 104. Where a person, in consideration of receiving from his debtor the note 
 of a tliird person, gives up a note of his debtor which is past due, it is equivalent 
 to an agreement on his part to cancel the existing indebtedness and to rely there- 
 after upon the obligation wliich he has taken in its stead. Id. 
 
 105. No failure in consideration of, given for slave, with warranty of his 
 slavery for life, by reason of ordinance abolishing slavery. Plulliju y. Evans, 
 N. S. "vi. 248. 
 
 106. Delay in fulfilling promise to marry and services during engagement, 
 good consideration for. PreFcott v. Ward, N. S. v. .505. 
 
 107. Total or partial failure of consideration, good defence between original 
 parties. Sawyer v. Chambirs, N. S. v. 316. 
 
 108. Evidence between indorsees and indorsers. Jd. 
 
 109. Accommodation indorser may make same defence as maker. Id. 
 
 110. liights of party receiving note for collection, from ostensible owner in- 
 debted to him. West v. Bank, N. S. v. 504. 
 
 111. Facts not constituting a valuable consideration. Id. 
 
 112. What is illegal consideration, avoiding. Brown v. Tarkington, N. S. v. 
 565. 
 
 113. Pavee with notice of illegality of consideration cannot recover. Kidder 
 V. Blakf., N. S. V. 698. 
 
 114. Nor will surrender of such note be a valid consideration for a new one by 
 maker and a third party. Id. 
 
 115. Nor is a release of an attachment on such new note a sufficient considera- 
 tion for a promise that it siiould be paid. Id, 
 
 116. One receiving negotiable paper before maturity, from payee in satis- 
 faction of preceding debt, is u, holder for value. Outwite v. Porter, N. S. v. 
 249. 
 
 117. A promissory note given in consideration of money paid by request of 
 the maker to a broker for losses sustained in stock jobbing transactions nego- 
 tiated by the latter for the former, in violation of the statute, is valid ; and the 
 money paid for losses in stock-jobbing transactions cannot be recovered back. 
 W;iman v. FIske, N. S. i. 506. 
 
 118. A promissory note for the balance due to n creditor of the maker, over 
 and aliove the amount paid to him under an agreement for composition, given 
 after the maker has been discharged thereby, but in fulfilment of an oral promise 
 by which the creditor was induced to sign the same, is invalid in the hands of 
 the payee. Howe v. Litchjield, N. S. i. 504. 
 
 119. When accepted on time for a pre-existing debt, effect of. See note to Le 
 Breton v. Pierce, N. S. i. 36. 
 
 120. When the new security is for the precise amount of the debt and is pay- 
 able on time there is a strong implication that the creditor will wait until the 
 maturity of the new security. Jd. 
 
 121 . In such case the new security is taken for value and all equity in favor of 
 other parties will be excluded. Jd. 
 
 122. So also where the security is for a larger sum than the existing debt. 
 
 i:. 
 
 123. Primd facie, the face of the note fixes the sum to bo recovered without 
 stating the amount paid for it. Lee v. Pile, N. S. xii. 530. 
 
 124. This rule is applicable between indorser and indorsee, and it is not com- 
 petent for the former to prove a cotemporajieous, naked agreement, that unre- 
 stricted indorsement should be operative as a restricted one only in bar of an 
 action by the latter. Dale v. Gear, N. S. xii. 14. 
 
 125. Note being void for want of stamp, payee may recover in assumpsit on 
 original consideration. Wilson v. Carei/, N. S. vii. 634. 
 
 126. Where a note with surety has been given upon an agreement that the 
 payee shall deliver to tlie maker another note, and the payee fails to deliver, the 
 consideration for the note fails. Heec/ v. Weigand, N. S. x. 750. 
 
 127. If such note is given as security for the surety on the old note, and ho 
 pays the debt, he may recover against the surety on the new note. Id. 
 
 TV. KiciiTS AND Liabilities or Parties. 
 
 128. A promissory note being presented by one bank at another bank where 
 it was made payable, was certified to be good and was then stamped "paid" by 
 
BILLS AND NOTES. 123 
 
 the prt'senting bank, but on tbc same day the maker's want of funds being dis- 
 covered, notice was jjiven tn tlie presenting bank, wbich however declined to 
 cancel the certificate. The certilying bank then paid the amount, took the note 
 and re-presented it at its own counter, had it duly protested, and notified the in- 
 dorsers. Held, that the facts did not amount to payment of the note, and the 
 hank was entitled to recover from the indorsers. Irvinq Bank v. Welheraid, N. 
 S. vii. 352. 
 
 129. The certifying hank having given notice of its mistake to the presenting 
 bank before the latter hart done or omitted any act by which its rights were im- 
 paired, the certifying bank was released from liability on its erroneous certificate, 
 and need not liave paid the amount of the note. Id. 
 
 130. Indorsement by several is only yrimd facie evidence of the contract as 
 between themselves, though it is conclusive between them and third parties. 
 gni'th V. Morrill, N. S. vii. ISR. 
 
 131. B. and C. gave joint note to A. for land ; C. conveyed his interest to 
 B. ; action for money had and received lies by A. against B. for the wliolo 
 amount. Woodhary v. Woodbury. N. S. vii. 318. 
 
 132. Indorsement by A. of B.'s name in B.'s presence and by his direction is 
 good. Id. 
 
 133. Any defence against payee may be made against holder not bond fide for 
 value. Van Valkenbiirgh v. Stupplebeen, N. S. vii. 380. 
 
 134. Holder as security may refuse to deliver until payment of the debt. 
 Henoir v. Paquin, N. S. vii. 634. 
 
 13.T. Circumstances to put holder on inquiry. Id. 
 
 136. ilortgage security to accommodation indorser — rights of indorsee on in- 
 fioivency of maker and indorser. Savintjs Institution v. Banhy N. S, iv. 511. 
 
 137. Procuring the signature of a new party, as if an original maker, without 
 indorser's knowledge, does not discharge the latter. McCaughey v. Smith, N. S. 
 iv. 190. 
 
 138. Note, payable on demand with interest, transferred to bond fide holder 
 three months after its date, is not subject in his hands to original equities. Her- 
 rick v. Molmrlon, N. S. iv. 190. 
 
 139. Indorser does not waive notice of non-payment by taking from maker a 
 mortgage to secure himself, and selling the property under it. Haskell v. Board- 
 man, N. S. iv. 118. 
 
 1411. The law of the place, where note stipulating for payment of interest is 
 made, will govern as to rate and rule of casting interest thereon. Chase v. Dow, 
 N. S. viii. 59. 
 
 141. A note payable on demand, and negotiated ten months after it was exe- 
 cuted, is subject to the equities of the original parties, in the hands of an inno- 
 cent holder. 3Iorey v. Wakefield, N. S. viii. 510. 
 
 142. A note due one day after date, with an agreement in writing that the 
 obligees in the note shall have five years to pay it in, cannot be sued on until the 
 expiration of the time, and the Statute of Limitations will not begin to run until 
 then. Round V. Donnell, N. S. viii. 575. 
 
 143. Guaranty of a note, not distinguishable from a general letter of credit, 
 and suit may be maintained in name of person given credit on its faith. Norih- 
 umberland Bank v. Eyer, N. S. ,viii. 630. 
 
 144. A guaranty is not assignable so as to enable the assignee to sue on it in 
 his own name. Id. 
 
 145. B. made a note payable to J. S. indorsed it; afterwards J. indorsed 
 it, and it was discounted by a bank for J. Held, that S. was not liable either to 
 the bank or to J. without evidence dehors that he had assumed the liability. 
 Schafer v. Farmers'" ^' Mechanics' Bank, N. S. viii. 684. 
 
 146. The mere indorsement in such case diil not authorize the holder to write 
 a guaranty over it, but a special original agreement might be established by 
 proof. Id. 
 
 147. The payee, who was also an indorser, was incompetent to testify to such 
 a special agreement of the irregular indorser. Id. 
 
 148. The indorsement is not a note in writing, as required by the Act of April 
 26rh 1855 (Frauds). Id. 
 
 149. The proof of collateral liability for the debt of the maker diflTerent from 
 that which the indorsement imports cannot be made by parol. Id. 
 
 150. If one write his name on the note, at the place commonly used for at- 
 
124 BILLS AND NOTES. 
 
 testations, the pi'csumption is that he writes it, not as the maker of the note, but 
 as a subscribing witness. Furntworth v. Rmoc. 0. S. i. 188. 
 
 151. A negotiable note is signed R. H. E. lor S. H. C, tlio latter name be- 
 ing within brackets ; on the face of the paper it is the note of 11. H. E. Earlij 
 T, Wilkinson, 0. S. iii. 51. 
 
 152. A note payable by instalments is overdue when the first instalment is 
 overdue and unpaid ; and one who takes it afterwards takes it subject to all 
 equities between the original parties. Vinton v. Kincj, N. S. i. 7G6. 
 
 153. When commercial paper is pled>;ed by the apparent owner before it 
 matures, as collateral security for advances, the pledgee in good faith is entitled 
 to hold it for the amount of such advance, though it turns out afterwanls that 
 the party making the pledge was a mere agent for the true owner, and that the 
 transaction was a breach of dutv to the principal. Belmont Branch Bank v. Noge, 
 N. S. vi. 227. 
 
 154. The title of one who for full value receives a transfer of negotiable paper 
 before maturity, and without notice of any outstanding or antecedent equities, is 
 not subject to. be defeated by proof that he might have obtained such notice by the 
 exercise of active vigilance. Id. 
 
 155. The fact that paper is transferred by a corporation, to secure advances 
 at a rate of interest exceeding seven per cent., does not tend to impeach the good 
 faith of the transferee, such a contract being no longer illegal. Id. 
 
 156. Chapter 172 of the laws of 1850 operated pro tanto as a repeal of the 
 statutes probibiting usury, so far as they were applicable to stipulations for a 
 rate of interest exceeding seven per cent., where a corporation is the borrower. 
 Id. 
 
 157. Presumption, when names of payee and .another person, former above 
 latter, are on the back of a note. Sturtf.vant v. Randall, N. S. vi. 565. 
 
 158. One placing name in blank on back of note, may show his connection 
 with such note by parol. Id. 
 
 159., Judgment finding a person to bo an original promissor, estops him from 
 denving same in litigation with other parties on note. Id. 
 
 160. Rights of bund Jide holders without notice. Soge v. Lansing, IJ. S. vi. 
 314. 
 
 161. Knowledge subsequently acquired will not affect. Id. 
 
 162. What is necessary to make a bond tide holder. Bright v. Judson, N. S. 
 vi. 436. 
 
 163. Cannot recover on acceptance obtained by fraud. /(/. 
 
 164. What will amount to evidence of sale of a note. Barney y. Clark, N. 
 S. vi. 445. 
 
 165. The vendor of a bill of exchange, though not a party to the bill, is re- 
 sponsible for the genuineness of the instrument ; and if the name of one of the 
 parties is a forgery, and the bill becomes valueless, the vendee is entitled to re- 
 cover the price. Gmnei/ v. WomerUcii, 0. S. iii. 502. 
 
 166. The defendants, who were bill-brokers, having received from A. a bill 
 of exchange drawn and indorsed by him for the purpose of being discounted, 
 took it to the plaintiffs, who were money-lenders with whom the defendants 
 had previously had dealings ; they declined to indorse or guarantee it, and the 
 plaintiff's, upon the credit of the acceptance, discounted it. There were separate 
 notes between A. and the defendants, and the defendants and the plaintiffs ; and 
 the rate of discount charged by the defendants to A. was higher than that charged 
 by the plaintiffs to the defendants. The acceptance was forged bv A., and the 
 bill was valueless. Held, that the defendants having been found bv the jury to 
 have dealt with the bill as principals, the plaintiffs were entitled to recover the 
 sum paid to the defendants upon the discount of the bill. Id. 
 
 167. A holder of a negotiable note bond fide for value, and without notice, can 
 recover, though be took it under circumstances which ought to have excited sus- 
 picion. Phelan v. il/o.s-.s', N. S. xi, 124. 
 
 168. In order to destroy such holder's title it must be shown that he took it 
 muld fide. Id. 
 
 169. The maker of an altered note will be liable to a bond fide holder for 
 value, for the face of the note. Garrard v. J/adden, N. S. xi. I'is. 
 
 170. If one by his acts, silence or negligence, misleads another, he must bear 
 the loss if the innocent party suffers. Id. 
 
 171. It is 110 defence to a note, against an innocent assignee, that the note 
 
BILLS AND NOTES. 125 
 
 ■when delivered was left in Wank as to the time of payment, and this was aftcv- 
 ward improperly filled in by the payee. Elliott v, Levingn, N. S. xi. 12.5. 
 
 172. If'raud perpetrated after the execution of a note, is no defence against an 
 assignee before maturity. Id. 
 
 17-3. Such duress as will constitute a defence to a note must be the menace of 
 an unlawful imprisonment. Knapp v. Hijrle, N. S. xi. 125. 
 
 17+. Where one Scott drew nn accommodation note to the order of Slack, and 
 to procure its discount at bank olitaiucd Kirk's indorsement aliove Slack's, if 
 Kirk pavs part of the note under threat of u suit, he can recover from Slack. 
 Slark V.' Kirk, N. S. xi. 192. 
 
 17.5. Slack is liable to the bank by his indorsement. Id. 
 
 176. He could neither set up the Statute of Frauds nor Kirk's want of liability. 
 Id. 
 
 177. He could not object to payment to any transferee of the bank, or any 
 one entitled by substitution to its riglits. /(/. 
 
 17S. Kirk liad ii risrht to pay if he chose, and then to be subrogated to the 
 rights of the bank. Id. 
 
 179. On paying the bank Kirk had a right to the note, and could claim as 
 holder under Slack's blank indorsement. Id. 
 
 180. In a suit on a note an affidavit that the name of the indorsor was used to 
 avoid a defence of usury, hut the note was really the property of the payee, is 
 sufficient. Evans v. Yoke, N. S. xi. 192.' 
 
 181. In such a positive affidavit it is not necessary to aver that the defendant 
 can prove the defence alleged, especially as he is a competent witness on the 
 trial. Id. 
 
 182. Tiie indorsee of a note not indorsed till after maturity, tliough taken 
 before, has no better title than the indorser. Clark v. WItituker, N. S. xi. 329. 
 
 183. Where the payee of a note indorses it after maturity, he cannot set up 
 usury between himself and the maker, as a defence to a suit brouglit by the in- 
 dorsee against the indorser and maker. Fnink v. Longatreet, N. S. xi. 329. 
 
 184. One who takes a prouiissory note without consideration takes it subject to 
 all its infirmities in his assignor's hands. Ilarpham v. Ilaynes, N. S. iii. 313. 
 
 185. Indorsee even with notice takes a note subject only to such equities as 
 attach to the instrument itself. Muttooii v. McVanid, N. S. iii. 634. , 
 
 186. Indorser of bhnnk note cannot object as against a bond fide holder for 
 value that tlie blanks liave been improperly filled. Farmers' Bank v. Garten, N. 
 S, iii. 6.31. 
 
 187. A signing on condition which is not fulfilled is no defence against a bond 
 fide holder for value. Watson v. Russell, N. S. iii. 440. 
 
 188. Where a note is signed as casliier, parol evidence allowed to show of 
 what bank. Baldwin v. Bunk of Newbunj, N. S. iii. 629. 
 
 189. Personal liability for note signed as secretary. Bottomley v. Fisher, 'N. 
 S. iii. 440. 
 
 1 90. Liability for note signed by agent in own name. Brown v. Parker, N. S. 
 iii. 567. 
 
 191. Suit in equity against acceptor of a lost bill. Edge v. Bumford, N. S. 
 iii. 441. 
 
 192. Notice by surety to holder of note not yet due, to sue as soon as it should 
 become due, will not discharge him. Ilellen v. Crawford, N. S. iii. 310. 
 
 193. Indorsee of bills given for debt but not accepted in absolute payment has 
 no right of action against the debtor except upon the bills. Battle v. Coit, N. S. 
 iii. 700. 
 
 194. A note given in pursuance of an illegal agreement, hut not made void by 
 the statute, may be recovered on by a bond fide receiver for value. C/iesbrougli v. 
 
 Wright, N. S. iii. 444 
 
 195. But one who takes the note in part payment of a precedent debt is not 
 such receiver for value, /d. 
 
 196. If the collateral is given in security at the time the debt is created, as an 
 inducement for the credit, and is negotiable and still current, and is negotiated to 
 the creditor so as to make him a party to the paper, and impose upon him the 
 dutv of demand and notice, all equities of third parties are excluded. See note 
 to Le Brrton v. Peirce, N. S. i. 36 ; and see Collateral SECtmiTr. 
 
 197. Where a promissory note, made by a partnership firm to one of its 
 members for money advanced by him to the firm, is indorsed by the payee to 
 
126 BILLS AND NOTES. 
 
 another after matarity, the holder may maintain the action thereon against the 
 makers, Sherwood v , Barton, N. S. i. 632. 
 
 198. Note not negotiable signed by two makers on its face and by a third 
 person on the back — bekl that the latter was not an endorser, but a joint prom- 
 issor. Richards V. TFomnj, N. S. ii. 701. 
 
 199. Note signed by "L. L. F., treasurer," is corporation note. Draper tt 
 al. V. Mass. Steam Heating Co., N. S. ii. 698. 
 
 200. Draft accepted by " E. T. L., agent," held to bind him personally. 
 Sluwson V. Loring, N. S. ii. 698. 
 
 201. Promise to accept is equivalent to acceptance as to every party taking 
 the bill on the faith of the promise. Steman et al. >'. Harrison et al., N. S. ii. 
 448. 
 
 202. Liability on agreement to endorse — reasonable notice. Schhssinger et al. 
 V. Dickinson, N. S. ii. 508. 
 
 20.3. An accommodation acceptor having paid a bill for which no funds are 
 provided by the drawer, is entitled to recover the amount from him. De Barry 
 V. Withers', N. S. ii'. 762. 
 
 204. The suit must be in the name of the payee to the use of the acceptor. Id. 
 
 205. But if the drawer make an express promise to the acceptor to pay the 
 debt to him, he rany sue in his own name. Id. 
 
 206. When one in the course of business intrusts another with the form of 
 a bill, cheek or note, duly .«igned or indorsed by himself, but in blank as to any 
 or all of the material parts, of date, amount, time or place of payment, or name 
 of payee, the law will presume that he authorizes that other to fill up the blanks 
 consistently with the tenor and, effect of the form. Spit/er v. James, N. S. ix. 
 605. 
 
 207. If he lirnits the authority by special insti-nctions, and his instructions are 
 disregarded, and the paper is completed in a manner not contemplated by him, 
 he will not be answerable to the wrongdoer on the terms of the instrument, nor 
 to any one taking the same with notice of the wrong ; but he will be held liable 
 to a bond fide purchaser. Id. 
 
 208. Where a note made by one member of a joint-stock association, and in- 
 dorsed by another, for the purpose of raising money for the use of the association, 
 is paid and taken up by a third, the latter cannot maintain an action against the 
 member and first indorser to recover back the money advanced by him, until 
 an account has been taken between the parties. Crater v. Bininger, N. S. ix. 
 124. 
 
 209. An indorsement will not create a liability where none was intended to 
 exist. Lewis V. Bnhme, N. S. x. 470. 
 
 210. The secretary of a corporation is not liable on a promissory note signed 
 with his own name with " Sec'y" affixed, and bearing the seal of the corpora- 
 tion. Means v. Swormstedt, N. S. x. 64. 
 
 211. The law does not presume that the indorser is to be compensated in the 
 case of an accommodation indorsement. Perrine v. Hotchhiss, N. S. x. 345. 
 
 212. Whatever assign -nent of a note a payee may make, be may bring an 
 action on it in his own name while it is in his hands. Richards v. Darst, N. S. 
 ix. 711. 
 
 213. A partnership indorsing negotiable paper, having blanks left for the date, 
 and giving the s.ime to a person for use, is liable on the paper with the date filled 
 in. Michigan v, Eldred, N. S. ix. 509. 
 
 214. After notice of the assignment of a note to a third party, the maker can- 
 not purchase claims against the original payee so as to entitle him to a set-off 
 against the holder. Goldthwait v. Bradford, N. S. xii. 319. 
 
 215. The payee of a note takes it upon the faith of the persons whose names 
 appear as maker. Smith v. Hill, N, S. xii, 733. 
 
 216. No allegation contradicting the written indorsement will avail. Id. See 
 Lee V. Pile, N. S. xii. 530. 
 
 217. The meaning and purpose of an indorsement without recourse, examined 
 and adjudged, Dumont v, Williamson, N. S. v. 330. 
 
 218. When a note is sold in market, the vendor and vendee being upon equal 
 terms, having each the same knowledge of the parties to the instrument, and 
 there is no concealment or misrepresentation by the vendor, who indorses it 
 " without recourse," he is not liable to the vendee, if the name of one of the 
 parties is forged. Id. 
 
BILLS AND NOTES. 127 
 
 219. Ho is not liable on any supposed oonti-flct growlnjj out of his indorse- 
 ment, as it is but a transfer of the note, without the usunl guaranty ; nor cun he 
 be helrl at all unless fraud, concealment, or misrepresentation, is proved, or the note 
 is {riven in payment of a prior indebtedness. Dumnnt v. Williamson, N. S. v. 330. 
 
 220. Cases on implied warranty by vendor of a bill or note. Id. Note. 
 
 221. An indorsement in blank by a third person of a note, negotiable or non- 
 negotiable, implies a warranty that the note when due will be collectible by due 
 diligence. Riddlev. Stivens and Others, N. S, v. 651. 
 
 222. This implication is, however, only primd facie, and will yield to proof 
 of the real character of the contract. Id. 
 
 223. Notes so indorsed have not the sanctity of ordinary negotiable paper, and 
 do not fall within the rules of the law merchant. Id. 
 
 224. Where a blank negotiable note was indorsed by a party who supposed 
 that his name would be inserted as payee, and upon an understanding with the 
 maker that the note should be used for a particular purpose, and the maker, 
 without the knowledge of the indorser, filled ic up by inserting the name of 
 another person as payee, and such payee, with no knowledge of the facts, took 
 the note for a valuable consideration, but for a different purpose from that in- 
 tended by the indorser, it was held that the payee could not recover against the 
 indorser. Id. 
 
 225. In suit by payee against indorser, defendants may show failure of con- 
 sideration. .Saipyfr vt Chambers, N. S. v, 191. 
 
 226. Accommodation indorser may avail himself of equities between holder 
 and principal debtor. SitgTcaves v. Bank, N. S. v, 250. 
 
 227. Facts that note was for payee's accommodation and transfer to plaintiff 
 after maturity, alone, no defence. Corhitt v, MiUcr, N. S. v. 57. 
 
 228. Misappropriation, to be available as a defence, must have been injurious 
 Id. 
 
 229. Transfer of note instead of proceeds, not misappropriation. Id. 
 
 230. Accommodation indorser not discharged by plaintiff's neglect to secure 
 application of a debt due makers, by a firm of which plaintiff was a member, to 
 payment of note. Glazier v, Douglass, N. S. v. 63, 
 
 231. Cannot defeat recovery on ground of usurv, uuless pleaded. Bank v. 
 I-ostn; N. S. V. 381. 
 
 232. Sale for less than legal discount will not put buyer on inquiry. Id. 
 
 233. Liability of firm for note, discounted for use of one partner. Id. 
 
 234. Action may be maintained against administrator on note due from his in- 
 testate, if he refuses to pay or deliver if. Prescolt v. Ward, N. S. v. 505. 
 
 235. When trover may be maintained for. Parh v. McDaniells, N. S. v. 505. 
 
 236. In action on a note for goods sold with warranty of quality, maker may 
 defend for breach against payee, a third person, though the latter was bond ,fide 
 holder and had no knowledge of the warranty. Aldrich v. Stockwell, N. S. v. 
 57. 
 
 237. Assignment of in Illinois; duties of assignee. Judson v. Goodwin, N. 
 S. V. 442. 
 
 238. An action may bo brought by the holder of a banker's check, payable to 
 the hearer against the drawer, by the holder and indorsee against the maker and 
 indorser of a promissory note, and by the holder against the acceptor of a bill 
 of exchange, in tlie name of the third person who has no interest in any of the 
 securities, and who has given no authority for the use of his name, and 
 ■who is ignorant at the time of his name being so used for that purpose ; if 
 the holder indorse the promissory note and bill of exchange with the name of 
 such third person ; and if such third person, after action brought, adopt and 
 ratify the proceedings taken in his name, the defendant in such action cannot 
 dispute his liability on the ground that the plainfiflF wits not the bearer of the 
 check, the indorsee or lawful holder of the note, or the owner or lawful holder 
 of the bill. Aticonnv. Murks, N. S. i. 512. 
 
 239. Notes made by one partner in the name of the firm after dissolution, of 
 which no notice was published, are binding on the other partners in the hands 
 of bond fide, holders for value, without notice of the dissolution. Taijlur v. Hill, 
 N. S. xii. 260. 
 
 240. A note given by an executor to an attorney for his services to the estate, 
 is payable by the maker personally. Kis^'er v. Hall, X. S. ix. 447. 
 
 241. The transfer of a note after maturity passes the legal title to the holder, 
 
128 BILLS AND NOTES. 
 
 subject to such equities tis exist I'rom its dislionor. National Bank of Washington 
 T. Texas, N. S. xiv. 192. 
 
 242. Any one disputing the title of holders has the burden of proof. Id. 
 
 243. A special indorsement of a bill "to pay J. C. or order on account of B. 
 & G.," is notice to all holders thiit J. C. holds in trust, and has no property in 
 the bill. Blaine v. Bourne, N. S. xiv. 391. 
 
 244. B. & G. are the real owners of the bill. Id. 
 
 245. Paper sent for collection only, notwithstanding a peneral indorsement, 
 remains the property of the sender as to all parties havinf; notice. Id. 
 
 246. Kemoving a condition from a note after sitrning, without the consent of 
 the maker, is a material alteration. Cochran v. N heker, N. S. xiv. 580. 
 
 247. It being payable at bank, did not make the maker liable when altered. 
 M. 
 
 248. Alteration will be presumed, until the contrary is shown, to have been 
 made liy the party claiming under it. Id. 
 
 249. The liurden is on defendant to prove a material alteration. Id. 
 
 250. The order of signing a note by the makers creates no presumption of the 
 relation of principal and surety. Snmmerhill v. Tapp, N. S. xiv. 392. 
 
 251. Tlie true relation of the makers may be shown by parol, so that it does 
 not prejudice a stranger. Id. 
 
 252. When payee of note not estopped from collecting of surety, by informa- 
 tion communicated to him. Barney v. Clark, N. S. vr. 445. 
 
 253. Suits on negotiable paper are not within the exception to the 11 th section 
 of the Judiciary Act. City nf Lexinr/ton v. Butler. N. S. xii. 127. 
 
 254. A married woman may transfer her title to a promissory note with her 
 husband's consent, but she cannot be held liable on her indorsement. Moreau v. 
 Branson, N. S. xii. 597. 
 
 255. A bill of exchange drawn by a creditor on his debtor and negotiated, does 
 not of itself operate as an assignment in equity of the debt. Bank uf Commerce 
 V. Bociy, N. S. ix. 193. 
 
 256. Assignor of a note and collateral security, with warranty of collection, 
 not liable, until f.iilure of assignee to recover on both note and collateral. Bar- 
 man V. Carlmrtt, N. S. ii. 127. 
 
 257. Resort to legal proceedings is not indispensable, if it appears that they 
 would be ineffectual. Ccaly v. Sheldon, N. S. ii. 439. 
 
 258. Covinous note given to defraud maker's creditors, may be enforced 
 against him. Carpenter v. McClure, N. S. vi. 440. 
 
 259. The purchaser of a note and a mortgage given as security therefor who 
 had an opportunity to examine the property described in the mortgage, cannot 
 maintain an action of tort against the seller for falsely and fraudulently repre- 
 senting to him that the security of the mortgage was undoubted, and the property 
 conveyed was of great value over and above all encumbrances, and amply worth 
 the amount of the note, and could be sold for its face at any time. Veasy v. 
 Doton, N. S. i. 569. 
 
 260. A person having in his possession negotiable notes, bonds, &c. , as collat- 
 eral security, is not confined exclusively to that security for the purpose of liqui- 
 dating his demand, but may, unless there is an agreement to the contrary, main- 
 tatn his action against the debtor on the original claim. Harricon v. Pope, 0. 
 S. iv. 313. 
 
 261. Note, for partnership debt, but signed by one partner only in fact is good 
 against all as between themselves. Sprague v. Ainsworth, N. S. vii. 575. 
 
 262. Although commercial intercourse between the states in insurrection and 
 those in occupation of the United States during the late war was unlawful, and 
 therefore a hill of exchange drawn in Mississippi on a person in New Orleans 
 while tlie latter was under control of the Federal army was void, yet a capture 
 of such hill by the United States commander did not authorize him to collect 
 and confiscate the money in the hands of the drawee in New Orleans. Britton 
 V. Butler, N. S. xi. 293. 
 
 263. Partnership bills and notes, subject discussed. N. S. xi. 537. 
 
 264. The discounting of bills wlien the customer's account is overdrawn makes 
 the bank a holder for value. In re Carew, N. S. iii. 439. 
 
 265. The Statute of Limitations begins to run against a note, payable in such 
 portions, and at such times as the directors of a company may require, from the 
 time it is given. Colgate v. Buckingham, N. S. iii. 60. 
 
BILLS AND NOTES. 129 
 
 26G. A verbnl promise to pay a note has the same effect as a new note. Sennott 
 T. Horner, N. S. iii. 313. 
 
 267. Mechanics' lien is waived bv acceptance of note. Green v. Fox, N. S. 
 iii. 506. 
 
 2G8. A promissory note is not provnble in in.'solvency against the estate of an 
 indorser before its maturity. Stowell v. R diardson, N. S. i. .^69. 
 
 269. Two or more persons severally sifjning a promissory note as sureties 
 do not thereby incur a joint liability. Bunker v. Tufts, S. S. viii. 188. 
 
 270. An agreement to extend the time of payment of a note, to be valid, 
 must be supported by a consideration. Marce/lus v. Countrymen, N. S. xiii. 261. 
 
 271. A suit prosecuted to judgment during tlie war against the maker of paper 
 not commercial, is a sufficient compliance with the statute, to fix the liability of 
 the assignor. Coppland, AJm., v. Winston, N. S. xiii. 397. 
 
 272. A public note or bill-broker who sells a note, impliedly warrants the 
 genuineness of the signatures and indorsements ; and should the bill prove to 
 be forged, the loss must fall upon the vendor. Hieman v. Fisher, O. S. iv. 433. 
 
 273. Fact that note is signed by individuals composing a firm not sufficient to 
 prove it a partnership debt in a contest between creditors. Gai/ v. Johnson, N. S. 
 V. 700. 
 
 274. Where a note was given for goods sold, but the property in the goods 
 was not to vest until payment of the note, an assignment by the vendors of their 
 title to the goods carries the note, and th'ev cannot maintain trover for it. Esti/ 
 V. Green, N. S. v. 703. 
 
 27.5. To entitle the holder to recover against the partners on a note made by a 
 member of the firm, he must prove either that the money was borrowed on the 
 credit of the partnership, or that it was used in the business of the firm. National 
 J^ankv. hitjraham, N. S. x. 412. 
 
 276. The note of a corporation signed by the secretary, as secretary, is not 
 the note of the secretary personally. Gaff v. Theis, N. S. x. 743. 
 
 277. Check received in payment of a draft, if not paid, will not make the 
 draft invalid as an obligation, Kelty v. National Bank of Erie, N. S. viii. 438. 
 
 V. Demand and Notice. 
 
 278. An express company contracted in Indiana to present a bill drawn and 
 indorsed by parties in that state, and accepted payable in New York. The bill 
 was placed in the hands of a competent notary in New York a day before its 
 maturity, and was, on that day, presented and protested. No other demand 
 was made. The demand and protest should have been on the following day, 
 whereby the indorsers were discharged. On suit brought against the express com- 
 pany for their neglect, it was urged that the contract of the company Avas per- 
 formed when the bill was put into the notary's hands. This question examined, 
 but not decided. American Express Co. v. Bunlevy, N. S. iii. 266. 
 
 279. The express company, by delivering the bill to the notary on the day 
 before its maturity, had made that officer their agent to hold and collect the 
 paper. This employment had nothing to do with the notary's official character. 
 On this ground the express company is liable. Id. 
 
 280. The measure of damages is the face of the bill and interest. Id. 
 
 281. Foreign bill must be protested by a notary : Note to American Express Co. 
 V. Dunlevtj, N. S. iii. 271. 
 
 282. A bill drawn in one state payable in another is a foreign bill. Id. 
 
 283. Liability of persons receiving bills on deposit, for transmission or col- 
 lection. Id. 
 
 284. For purposes of protest a collecting agent is a holder. State Bank v. 
 Bank of the Capital, N. S. iii. 701. 
 
 285. Bank acting as collecting agent merely need only notify its immediate 
 principal or indorser. Id. 
 
 286. Its undertaking to notify other parties is not sufficient evidence of agree- 
 ment to notify all. Id. 
 
 287. Holder of note as collateral must present it at maturity. Peacock v. 
 Percell, N. S. iii. 440. 
 
 288. Presentment at the place of date is sufficient, in absence of proof that 
 the holder knew the maker resided elsewhere. Smith v. Philbrick, N. S. iii. 187. 
 
 289. It is settled law in New York that a bill of exchange drawn in one state 
 upon a person in another is a foreign bill. Commercial Bank v. Varnvm, N. S. 
 xi. 407. 
 
 9 
 
130 BILLS AND jSTOTES. 
 
 290. At common law the rule is that presentment and demand of payment of a 
 foreign bill must be made by the notary in person, but this rule may be varied by 
 evidence of a usage universal in the place where the bill is payable for the clerk 
 of the notary to miike such presentment and demand. Commercial Bank v. 
 Varnum, N. S. xi. 407. 
 
 291. The statute of New York (L. 1857, chap. 416), declaring that days of 
 grace shall not attach to bills of exchange, &c., which are " on their face" pay- 
 able in "days" after date, or on .specified day, does not apply to bills made 
 pavable on their face in months after date. Id. 
 
 292. A bill of exchange which is not entitled to grace, falling due on a public 
 holiday, is payable on the day following. Id. 
 
 293. A promise by an indorser to pay a draft subsequent to its dishonor is pre- 
 sumptive evidence that it had been presented in due time, and that he had notice 
 of its being dishonored. Lewis v. Brehme, N. S. x. 470. 
 
 294. When the drawee of a bill of exchange refuses to pay at maturity, notice 
 of such refusal must be given to the drawer or he will be released. Liygett v. 
 Weed, N. S. x. 600. 
 
 295. Before damages can he recovered for protest, there must be such demand 
 and notice as will charge indorsee. Noyes v. While, N. S. xii. 61. 
 
 296. Paper, not payable at a bank, is dishonored upon refusal to demand at a 
 reasonable hour during business hours. Etheridge v. Ladd, N. S. v. 249. 
 
 297. Notice, immediately thereafter, good. Id. 
 
 298. Duties of holder as to demand. Id. 
 
 299. When note is payable at bank, it isjeft there and demand made at close 
 of day. Id. 
 
 300. Providing funds after protest will not discharge indorser. Id. 
 
 301. What is sufficient demand, notice and protest. Nave v. Hicfiardson, N. 
 S. v. 442. 
 
 302. Bank-check payable at subsequent date, entitled to days of grace. Ivory 
 V. Rmk, N. S. V. 442. 
 
 303. Official protest only proper legal evidence of presentment, demand and 
 refusal of foreign bills. Bank v. BarksdaU, N. S. v. 442. 
 
 304. By whom, must be made. Jd. 
 
 305. Bills after sight ; reasonable time; in bills of'exchange payable on or 
 after sight, our law does not, like that of some foreign nations, fix a time for 
 presentment of acceptance; but the rule is that where there is no usage of trade 
 the bill must be presented ■within a reasonable time, which is a mixed question 
 of law and fact for the determination of n jury, with the assistance of a judge. 
 Mulhck V. Padakisnen, 0. S. ii. 702. 
 
 306. Where a bill of exchange is addressed to the payee, with his private 
 residence added, and is accepted by him, payable at his banker's ; in order to 
 charge an indorser, presentment at the banker's is necessary, and presentment at 
 the acceptor's place of residence is not sufficient. Saul v. .Jones, 0. S. vii. 507. 
 
 307. A presentment for payment of a bill in pursuance of the terms of a 
 forged special acceptance is not a good presentment against the drawer without 
 additional circumstances to make him liable. No presumption that the forged 
 acceptance was on the bill at the time of his indorsement. Wetton v. Hodd, 0. 
 S. iii. 123. 
 
 308. Forged acceptance ; presentment and notice of dishonor. The drawer 
 of a bill of exchange is not bound by presentment of the bill named in a forged 
 acceptance. Wetton v. Hodd, O. S. ii. 638. 
 
 309. The neglect to present a draft, payable on demand, for four days, during 
 ■which time the drawee fails, will discharge the drawer. Brady v. Little Miami 
 Railroad Company, N. S. i. 239. 
 
 310. Notice of dishonor discussed in reference to residence of parties. West 
 River Bank v. Taylor, N. S. ii. 562. 
 
 311. Presentment for payment; notice of non-payment. Haltowell Sj- Co. v. 
 Curry et al., N. S. ii. 313. 
 
 312. Proof of notice and demand on indorser, is not necessary ■when he has 
 promised absolutely to pay the note at maturity. Schley, ExeaUrix, v. Merritt, 
 N. S. xii. 784. 
 
 313. A. made his promissory note in the city of New York, payable generally, 
 lie resided at the time in New York, as well as the indorser. Before the note 
 lell due, he removed to New Jersey, where he resided at its maturity. Held, 
 
BILLS AND NOTES. 131 
 
 rtat it was not •nccessavy for the holder, in order to charge the indorser, to pre- 
 sent the note for payment at the maker's former place of residence in New York. 
 Foster v. Jnl'ien, N. S. i. 362. 
 
 314. The cases of Anderson v. Drake, 14 Johnson 114, and Taylor t'. Snyder, 
 3 Denio 145, commented upon, and the case of Wheeler v. Field, 6 Metcalf 290, 
 overruled. Id. 
 
 315. Acts amounting to waiver of demand and notice. Keijes v. Winter, N. 
 S. vii. 439. 
 
 316. Note "pavnhle in officer's fees," &c., is pavable on demand. Thrall v. 
 ^fe^d, N. S. vii. 832. 
 
 317. Holder of certificate of deposit payable to order of A. on presentation 
 cannot sue until demand has been made. Bank v. .Bank, N. S. vii. 758. 
 
 318. Demand note ptiyable in goods if not paid on demand at reasonable time 
 becomes payable in money. Bead v. Sturtcvant, N. S. vii. 831. 
 
 319. Any act of endorser tending to put holder of note off his guai-d, is in 
 law a waiver of demand and notice. Sheldon v. Ilorton, N. S. viii. 575. 
 
 320. Notice of dishonor left at post-office where there is daily delivery suffi- 
 cient- Shoemaker v. Mechanics' Bank, N. S. viii. 693. 
 
 321. AVaiver of demand implies waiver of protest and notice. Jaccard v. 
 Anderson, N. S vi. 57. 
 
 322. What " waiver of protest" implies. Id. 
 
 323. Agreement of waiver must be made between holder and indorsees to be 
 charged. Id. 
 
 324. 'When admission of liability by indorsees will not overcome want of de- 
 mand and notice. Gawtryv. Uoane, N. S. vi. 714. 
 
 325. What will not amount to a waiver of the objection of want of demand 
 and notice. Id. 
 
 326. Waiver by indorser of presentation and pretest. Braine v. Spalding, N. 
 S. vi. 630. 
 
 327. What is sufficient notice to indorser. Wood v. Watson, N. S. vi. 566. 
 
 328. When notarial certificate evidence of facts stated therein. Bank v. Gre- 
 gory, N. S. vi. 57. 
 
 329. Where holder of a cheek sends it to drawees through the post, and does 
 not receive the money by return mail, that is a dishonor of which indorsers should 
 be notified. Bailey v. Bodtnham, N. S. iv. 308. 
 
 330. Whether presentment by mail is good, qumre. Id. 
 
 331. Surety is not discharged by a notice to the holder to sue the principal 
 debtor, unless the notice is clear. Shinier y. Jones, N. S. iv. 308. 
 
 332. Married woman surety is entitled to such notice, and notice to husband 
 is not sufficient, though if intended for the wife it becomes a question of service 
 merely. Id. 
 
 333. Indorser not notified of dishonor offering to pay in depreciated notes of 
 bank holding the bill,' does not waive the notice. Newberry v. Trowbridge, N. S. 
 iv. 570. 
 
 334. The acceptance is that of the corporation, and the indorsers are entitled 
 to notice of non-acceptance by the drawee, and for want of notice are discliargeil 
 from liability to the holder of the bill. The Oneida Bank v. Burton D. Hurlbut, 
 O. S. i. 219. 
 
 3.35. Notice of dishonor of a bill or note, where the parties reside in different 
 places or states, must be deposited in the post-office in time for the mail of the 
 next day, provided it be not made up and closed at an unreasonal)Iy early hour, 
 or before early and convenient business hours. Lawson v. The Bank uf Salem, 
 O. S. i. 617. 
 
 336. Where the mail from the place of protest of a bill to the place of 
 residence of the indorser closed at ten minutes past nine a. m., on the day sub- 
 sequent to the protest; business hours beginning at seven o'clock a. m., nt the 
 former place, it was held, that notice of dishonor deposited in the post-office after 
 such closing of the mail, was too late. Id. 
 
 337. The holder of a bill is only bound to give notice of dishonor to his im- 
 mediate indorser ; and so of an agent for collection. Id. 
 
 338. A holder of a bill of exchange payable at a day certain, may present it 
 for acceptance at any time before maturity, and upon refusal of the drawee to 
 accept, may give notice of such to the prior parties, and have an action against 
 them at once. Oneida Bank v. Hurlbut, 0. S. i. 219, 
 
132 BILLS AND NOTES. 
 
 339. If the holder omit to give notice to the drawer and indorsers of tiie re- 
 fusal of the drawer to accept upon presentment, they will be discharged unless the 
 hill subsequently come to the hands of a bond Jide holder for value who again 
 presents the bill and duly charges the prior parties. Oneida Bank v. Hurlburt, 0. 
 S. i. 219. 
 
 340. It is sufficient to fix the liability of the first indorser of a promissory 
 note, if on the day of its dishonor a duplicate notice for him was inclosed by a 
 notary to the second indorser, who, immediately after receiving it, deposited it 
 in the post-office properly addressed to him, although he lives in the same town 
 where the note was payable and protested, and the second indorser lives in 
 another town. True v. Collins, N. S. i. 504. , 
 
 341. In order to charge the indorser of a joint note, demand must be made on 
 all the makers. Gates v. Beecher, N. S. xiv. 440. 
 
 342. The note of partners does not come within this rule, as they are hut one 
 maker in contemplation of law, and a demand on any of them is a sufficient 
 demand on all. Id. 
 
 343. After a dissolution of a partnership by bankruptcy or otherwise, the 
 powers of the several partners to affect each other by new contracts ceases, but 
 each retains the power to settle up the former business, and hence the dishonor of 
 a note by either partner is sufficient even after dissolution to charge an indorser. 
 Jd. 
 
 344. The notice of dishonor to an indorser is only required to be such as will 
 reasonably apprise him of the particular paper on which he is to be charged. 
 Therefore, in the absence of evidence to show that the indorser was misled, or 
 that there was any other note to which it might apply, a notice which gave the 
 maker's name, the date and amount of the note, the date when, the place where, 
 and the person of whom demand was made and the refusal to pay, was hold suffi- 
 cient, although it did not expressly state the time when the note became due. Jd, 
 
 345. A notice of protest delivered to an indorser on Sunday is void, and does 
 not render him liable on the note. Eheem v. Carlisle Bank, N. S. xiii. 499. 
 
 346. The mere receipt by the indorser of the notice in a sealed envelope, even 
 if told what it is, does not, without his saying or doing anything to mislead the 
 notary, amount to a waiver of the irregularity. Id. 
 
 347. Nor does the receipt of notice in that way on Sunday amount to a valid 
 notice to him on Monday, though a new notice to him on that day would have 
 heen in time. Id. 
 
 I. Title to a Note. 
 
 348. Bank receiving note for collection has no better title than the remitting- 
 hank unless it becomes a purchaser for value without notice. McBride v. Far- 
 mers' Bank, N. S. iii. 636. 
 
 349. Having a balance against the remitting bank and refraining from draw- 
 ing it, or discounting notes for the latter, do not make the bank such purchaser. 
 Id. 
 
 350. Eemitting bank having demanded the note and afterwards the proceeds, 
 assigned its demand. The assignor may maintain an action without new de- 
 mand, although the assignment was made to obviate the objection to an attach- 
 ment by a non-resident. Id. 
 
 351. Receiver of unindorsed note has no better title than the person from 
 whom he received it. Whistler v. Foster, N. S. iii. 440. 
 
 352. Indorsement of note to two persons, with delivery, vests a valid title in 
 both, although one was absent at the time, and they may maintain a joint action 
 upon it. Hint et al. v. Flint, N. S. iii. 120. 
 
 353. Where a guaranty of a note is a separate instrument, title to it will 
 pass by delivery with the note, for a good consideration. Gould v. Ellery, N. S. 
 iii. 59. 
 
 354. Where J. made a contract for the sale of C.'s promissory notes to L. 
 when he was not the owner nor in possession, it was held, that there was no im- 
 plied warranty of title, and that the subsequent acquisition of it by J. did not 
 enure to the benefit of L. so as to render a payment by C. to him good, and an 
 extinguishment of the note. Scranton v. Clark, N. S. iii. 125. 
 
 355. Indorsement of husband to wife and by her to third person gives the lat- 
 ter a valid title. S/owion v. Doring, N. S. ii. 698. 
 
 356. Good faith in taking under suspicious circumstances. Belmont Branch 
 Bank v. Iloye, N. S. ii. 563. 
 
BILLS AND NOTES. ■ 133 
 
 ' 357. Ayerment of title ; sufficiency of. Farmers'' and Mechanics' Ban!; v. 
 
 Tl'adsworth, N. S. ii. 121. 
 
 G58. A letter written by the m.iker of a note to the holder, before the discount 
 of it by him, is not admissible in an action by the latter against nn indorser, to 
 shew that the indorsement was an accommodation one, Eckert v. Cameron et uL, 
 N. S. ii. 49. 
 
 .359. Where an indorsed note comes into the possession of the maker before 
 it is due, there is no presumption of payment or extinguishment ; and, therefore, 
 one who discounts the note under such circumstances is an innocent holder for 
 Talne. Id. 
 
 360. An indorsement by the p.ayee of a note, without qualification, im- 
 ports property in the holder, and a third party may treat him as bond fide owner 
 without inquiry. Miller v. F. ^ M. Dank, N. S. ix. 575. 
 
 361. Where the indorsee produces the note on trial, it is to be presumed he is 
 the holder in good faith, and that he received it before maturity. Springer v. 
 Ihayer, N. S. x. 344. 
 
 362. Possession of a note by one of two joint indorsees for four years after its 
 maturity, and until his death, is CTidence of his ownership, and of his I'ight to 
 appropriate it to the payment of a claim by maker against such indorsees. Bir- 
 kexj V. McMakin, N". S. x. 404. 
 
 363. An assignment by a railroad company of a note and mortgage attached 
 to a negotiable bond as security, need not be an indorsement of the note. Mur- 
 phi) V. Dunning, N. S. xii. 125. 
 
 364. A denial that the company ever indorsed the note, will not put the plain- 
 tiff on proof of the officer's authority to make the assignment. Id, 
 
 365. Indorsed in blank and transferred by the indorsee by delivery only, 
 holder takes as against acceptor any title which the immediate indorsee had. 
 Fairclaugh v. Paira, 0. S. iii. 123. 
 
 366. A foreign attachment was levied on debts generally. The garnishees 
 had given to tJie defendant a blank bill of exchange for a debt due him, on which 
 hill they had written their acceptance. Subsequently to the attachment, the defend- 
 ant filled up the blanks to his own order, and indorsed the bill to a purchaser for 
 value without notice. Held, that the doctrine of Us pendens did not apply ; that 
 the indorsee of the bill took a good title ; and that the garnishee was discharged. 
 Ilujidon V. Field, O. S. i. 421. 
 
 367. Taking a note on which the indorsements are forged, in renewal of a pre- 
 vious one, does not extinguish the original note. Hitler V. Singmasler, N. S. xiii.521. 
 
 368. The bank discounting the first note was entitled to recovery. Id. 
 
 369. The receipt by a surety of a note from the principal, after he has paid his 
 liability, will not extinguish the surety's claim on a note of a third per,son which 
 the principal has previously given him as indemnity. , Pinnei) v. Kingston, N. S. 
 xiii. 647. 
 
 370. The delivery of a promissory note payable to bearer is an assignment of 
 it. Cox''s Executors v. Mattliews, N. S. viii. 510. 
 
 371. Note of husband to third party before marriage, not extinguished by pur- 
 chase by wife after marriage with her ov/n funds. Euss v. George, N. S. v. 7(10. 
 
 372. Transfer by wife of note of husband to third party before marriage, with 
 husband's assent ; proof of such assent. Id. 
 
 VII. Payment. 
 
 373. The receipt of a bill or note having time to run from the party primarily 
 liable on a bill or note then overdue, will not operate to discharge an indorser on 
 the bill or note so overdue, unless there is an agreement, express or implied, that 
 the new bill or draft shall be in payment of the former, or extending the time 
 of payment in favor of some party who is liable thereon, prior to such indorser. 
 Tavlor V. Allen, N. S. i. 634. 
 
 .374. There is no presumption in law that an unnogotiable note of the same 
 amount of a pre-existing book debt was received as a payment of the debt. Bart- 
 lel.t v. Mayo, O. S. i. 188. 
 
 375. Where a hill is drawn and a bottomry bond taken for the same thing, the 
 bill mu'it share the fate of the bond-. Maitland v. Brig Atlantic, O. S. iii. 477. 
 
 376. The indorser of a negotiable note, discounted by a bank, and by it trans- 
 ferred to assignees before nuiturity for full value, has no right when payment is 
 demanded by the holder to pay the note in the depreciated paper of the bank after 
 it has failed. Housum v. Rogers et at., N. S. i. 627. 
 
134 BILLS AND NOTES. 
 
 377. The acceptor of a bill, being the principal debtor, while the drawer and 
 indorser are but sureties, payment by the former extinguishes the debt, leaving 
 no right of action against the latter except wlien the acceptance was supra pro- 
 test. Swope et al. v. Soss et al., 0. S. i. 627. 
 
 378. Payment of less than the face of several promissory notes, a portion of 
 which are not due, is a good satisfaction of all of them, if upon the receipt and 
 acceptance of the same by the holder the notes are given up to the maker. Bmoker 
 V. Childs, N. S. i. 504. 
 
 379. A note given for articles purchased at an administrators' sale in North 
 Carolina, in March 1864, is payable in Confederate currency. Laws v. Rycroff, 
 N. S, ix. 384. 
 
 380. In the absence of evidence to the contrary, the presumption is that an 
 indorsement of credit on a note was made at the time it purports to bear date. 
 Carter v. Carter, N. S. ix. 195. 
 
 381. Levy upon property supposed to belong to the maker of a note is no satis- 
 faction of the judgment and no defence to an action against the indorsee. Rice 
 V. Groff, N, S. viii. 634. 
 
 VIII. Gkaoe. 
 
 382. Note payable in instalments with interest is entitled to grace on both 
 principal and interest, and condition of mortgage given as collateral security is 
 not broken till expiration of grace. Coffin v. Loring, N. S. ii. 699. 
 
 383. Maker has the whole of the last day of grace to pay in, without regard 
 to banking hours. Smith v. Aylesworth, N. S. iii. 2.'54. 
 
 384. Maker has all the last day of grace, though he may have refused payment 
 during the day. Oothout v. Ballard, N. S. iii. 444. 
 
 385. It is immaterial whether the note is payable at a bank or at large. Id. 
 
 386. Where time of payment is in terms given to the drawee, as after sight or 
 after date, or by naming a particular day, days of grace are to be allowed, but 
 where the terms of the bill import immediate payment on presentation, its terms 
 are to be pursued. Trash v. Martin, 0, S. iii. 444. 
 
 IX. Kemitted fok Collection, and Ceebited as Cash, ■wiieii held fob 
 Value. 
 
 387. M., C. & M., of Baltimore, indorsed in blank and deposited for collection 
 with J. L. & Co., bankers and collecting agents in the same city, a bill payable 
 in New York. The latter indorsed for collection to the plaintiffs, also bankers 
 and collection agents doing business in New York. Each of tltese two houses 
 was constantly remitting paper to the other for collection, and knew that each 
 remitted paper for collection belonging to third persons. The remitted paper, 
 when payable at sight, was collected, and then credited as cash. That payable in 
 futvrovi&s entered in the books of the house receiving it, as received for collection, 
 and was not otherwise credited, unless nor until it was actually paid. According 
 to the course of business, each house drew for the cash balance in its favor, 
 arising from actual collections, and not against paper remitted and not matured. 
 There was no express agreement between them, that either should hold the paper 
 it held running to maturity, as security for the paper remitted to the other for 
 collection, or for cash balances. J. L. & Co., at the time of remitting the bill 
 in question to the plaintiffs, owed them a small, ca^h balance, and immediately 
 thereafter received from the plaintiffs other remittances, which they collected, 
 but failed to pay over, and failed in business before the bill in question 
 matured. The plaintiffs were immediately notified that the bill belonged to 
 M., C. & M., but on demand thereof refused to surrender it. Held, (1.) That the 
 plaintiffs could not retain the bill as against M., C. & M., as indemnity against 
 the balance owing to them by J. L. & Co., and that they were not hand fide 
 holders for value in such sense as to have acquired a title superior to that of M., 
 C. & M. Held (2.) also, That evidence by the plaintiffs, that in making the 
 remittances, made after receiving the bill in question, they looked to, and relied 
 on, the unmatured paper in their hands, received from J. Iv. & Co., was not en- 
 titled to any consideration, as neither any agreement nor the course of dealing 
 between them and J. L. & Co. authorized them to so rely, and J. L. & Co. had 
 no reason to suspect that any remittance made to them was influenced by any 
 such consideration. Hoffman v. Miller, N. S. i. 676. 
 
 388. Attorney receiving note for collection after maturity, cannot sell or 
 assign it. Goodfellow v. Lambs, N. S. v. 441. 
 
BILLS AND NOTES. 135 
 
 rRAl'DTJLENTLT NEGOTIATED — EON'A PIDE IIOLDEE. 
 
 389. Vv'here L. executed and delivered to H. four blank promissory notes, and 
 authorized him to fill the blanks with sums not exceeding $5200 each, for the 
 purpose of negotiating ihera for the benefit of L. ; and H. delivered to L. similar 
 notes, to serve as receipts, or to idcmnify him in case he (H.) should misuse 
 any of the funds arising from the negotiation of L.'s notes ; and II. returned 
 the notes executed by L. to him with the blanks unfilled ; and one of the notes 
 executed by H. was filled by L. with the sum of $'8829 81, and passed to the 
 plttintifiTs by indorsement as collateral security for an antecedent debt, )( washskl, 
 that the court did not err in instructing the jury : 
 
 (1) That the omts cf showing the consideration of the note was upon the 
 maker, the presumption being that it w.as suflScicnt. 
 
 (2.) That if the indorsees were bond fide holders fo;: a good consideration, it 
 could make no difl^erence that it was executed in blank, or that it was accommo- 
 dation paper which had been misused by the indorser. 
 
 (3.) That if the transaction was an exchange of notes, the indorsee could not 
 be defeated by showing that, subsequent to the transfer, H. had delivered up and 
 cancelled the notes of the indorser. 
 
 (4.) That if H.'s notes were delivered merely to stand as recqipts to protect 
 L. in case H. should misuse the funds arising from the notes given to him to 
 negotiate, any note filled up by L. (his notes having been returned to him) 
 would, in his hands be without consideration. 
 
 (.'>.) That the presumption was that the indorsee took the note in good faith, 
 in the usual course of business, before its maturity, and for a valuable considera- 
 tion ; that express or actual notice that the note was without consideration, or 
 that it had been filled up without authority, was not necessary ; that it is sufficient 
 if the circumstances brought home to the plaintiffs are of such a strong and 
 pointed character as necessarily to cast a shade upon the transaction and put 
 them upon inquiry ; that the indorsees are not charged with notice because cf 
 any want of diligence on their part in making inquiry, or if they took the note 
 under suspicious circumstances, provided they had no notice, actual or construc- 
 tive, of the equities between the original parties ; that the defendant was not 
 bound to prove that the plaintiflF purchased with full and certain knowledge of 
 the want of consideration, but if the circumstances attending the transfer of the 
 note were such as to put them on their guard, or if they must have known there- 
 from that the person offering it had no right to transfer it, then they were bound 
 to make inquiry, and if they did not, they took the note at their peril. Trustees 
 of Iowa Co'lege v. Hi I, N. S. i. 745. 
 
 390. That though the plaintiffs took the note as collateral security for an 
 antecedent debt, they are nevertheless primd faeie^ though not conclusive! if ^ to be 
 considered as holders for value, and it is on the defendant to show that they are 
 not such holders ; that if it was taken for collateral security only, the plnintiH's 
 parting with nothing, giving no time, relinquishing no right, nor suffering 
 damages or injury as the consideration or iu consequence of receiving it, they 
 would not be such holders. Id. 
 
 391. A bondjide purchaser is one who, for full value, obtains from the appfi- 
 rent owner a transfer of negotiable paper before it matures, and who has no 
 notice of any equities between the original parties, or of any defect iu the title 
 of the presumptive owner. Shilhr v. Jumes, N. S. ix. 605. 
 
 392. The indorser of a note will not be liable even to a bond fide holder on a 
 forged indorsement unless he ratified or sanctioned it prior to the maturity of the 
 note. Woodruff V. Munroe, N. S. x. 403. 
 
 393. I'erson induced by fraud to make a note may set up the fraud in defencs 
 to an action on a new note, given for the original one before the discovery of the 
 fraud. Suwyer v. Wiswell, N. S. iv. 704. 
 
 394. A. held the promissory note of the defendant, obtained of him by fraud, 
 and which the defendant had demanded back immediately on discovering the 
 fraud. The note was payable to A.'s order and on time, and before due A. in- 
 dorsed it to the plaintiff in trust in part for certain creditors and the balance for 
 A.'s wife, the plaintiff having no knowledge of the infirmity of the note. The 
 creditors accepted the transfer and directed the plaintiff to bring suit on the note 
 when due. Held, 1. That so far as the trust for A.'s wife was concerned, the 
 plaintiff took the note as agent of A., and therefore with its infirmity. 2. Thut 
 the entire transaction by which the note was transferred to the plaintiff was out 
 
136 BILLS AND NOTES. 
 
 of the rcfrular course of business, aud that the note therefore remained open to 
 the defence of fraud. Roberts v. Hall, N. S. x. 760. 
 
 395. The wife of A. was living apart from him, but was not divorced. Held, 
 not to affect the case. Id. 
 
 396. The taking of negotiable paper as payment of or security for a pre-exist- 
 ing debt is not out of the regular course of business. Id. 
 
 397. The question whether negotiable paper was taken in the regular course 
 * of business resolves itself mto the inquiry whether mercantile paper is ordinarily 
 
 used in the manner in which the paper in question was used, and. whether a busi- 
 ness man would ordinarily have received the paper in the circumstances in which 
 it was offered, and parted with his property for it. Id. 
 
 398. It is no defence to a suit by an innocent indorsee that a note was procured 
 by fraudulent representations. Strough et al. v. Gear et al., N. S. xiv. 580. 
 
 399. The drawee of a forged bill, who has paid it, cannot recover the money. 
 Id. Salt Springs Bank v. Syracuse Savings Bank, N. S. xi. 591. 
 
 400. An action lies to recover back money paid to a broker for a note, the sig- 
 nature to which is forged, sold to him without disclosing his principal, although 
 he has paid the money to his principal, and although the note was sold for a sunj 
 less than its face. Merrium v. Wolcott, N. S. i. 436, 
 
 XI. Effect of Alterations. 
 
 401. The acceptance of bill of exchange was altered, without the consent of 
 acceptor, by making it payable at a particular place. The acceptor held dis- 
 charged, though the plaintiff was an indorsee for value after the alteration, and 
 without notice, Burchpell v. Moore, 0. S. iii. 123. 
 
 402. A joint and several promissory note, although it contain two promises in 
 the alternative, is one contract and one instrument, and if it is designedly altered 
 ill any part by the payee, so as to alter the liability of the maker, it is entirely 
 vitiated. Gardners. Walsh, 0. S. iv, 123, 
 
 403. Where a promissory note shows clearly on its face that it has been al- 
 tered in some material part, such as its date, it is incumbent on the party pro- 
 ducing it to account for the alteration. If no explanatory evidence Vie given, it 
 would be error in the court to refer it to the jury as matter of fact, to determine 
 whether the alteration preceded delivery or not. Clark v. Eckstein, 0, S, ii, 
 508. 
 
 404. But the preliminary question as to whether there has been any alteration, 
 if doubtful, is for the jury ; therefore, where the last figure of the date of a note 
 on which suit was brought was blotted, aud an erasure appeared at its side : 
 Held, that it was rightly left to the jury to say whether the erasure was of the 
 blot or of the date. Id. 
 
 405. Restoring a note to its original condition by erasing an alteration is not 
 a fraud on the indorser. Kouniz v. Kennedy, N. S. x. 193. 
 
 406. The burden of proof is on the defendant, alleging that a negotiable note 
 has been altered since he signed it. Aleikel v. Savings Institution, N. S. xii. 319. 
 
 407. The alteration of a negotiable promissory note after its execution, by 
 filling blanks in a printed form, so as to make the note draw interest at a given ' 
 rate from date, avoids the note in the hands of an innocent holder for value who 
 has received the same in the usual course of trade, and before maturity. Wash- 
 ington Savings Bank v. Ekey, N, S, xii, 625. 
 
 408. An amendment will not be allowed by which a note liable to be assessed 
 only for losses on one class of hazards, is made liable for all losses, Sheldon v. 
 Adams, N, S. iii. 503. 
 
 XII. Action on, and Defence to. 
 
 409. Bill of exchange — equity ngainst, in hands of party receiving it when 
 overdue. Holmes v. Kidd, 0. S. viii. 253, 
 
 410. An agreement was made between the drawer and acceptor of a bill of 
 exchange, at the time it was given, that the acceptor should deposit with the 
 drawer some canvas as a collateral security for the payment of the bill, with 
 power to the drawer to sell the canvas and apply the money arising therefrom 
 towards the discharge of the amount of the bill, should it not be paid at the 
 proper time. The drawer indorsed the bill after it was overdue, and on non- 
 payment of the bill when due, sold the canvas and realized part of the amount 
 of the bill. Held, that the agreement between the drawer and acceptor, as to the 
 canvas, created an equity which attached to the bill in the hands of the indorsee, 
 
BILLS AND NOTES. 137 
 
 who rcceivecl it nfter it was overdue ; nniT as tlie drawer, nftcr the indorsement, 
 hart sold the canvas and retained the proceeds, the indorsee was prevented from 
 recovering on the hill for so much as the canvas realized on its sale. Holmes v. 
 Kidd, O. S. vii. 563. 
 
 411. In an action by the indorsee against the maker of a promissory note, the 
 defendant cannot show hi defence that the plaintiff procured the indorsement by 
 undue influence from the payee, when he was of unsound mind and incapable 
 of making a valid indorsement, if the payee or his legal representatives have 
 never disatfirmed it ; or that the payee, for a valuable consideration, had agreed 
 to give up the note at his death to the maker, reserving meanwhile the right to 
 collect the interest thereon. Carrier v. Snars, N. S. i. 765. 
 
 412. The loss of a negotiable bill, though unindorsed, given on account of a 
 debt, is an answer to an action for the debt as well as on the bill. Crowe v. Ciaij, 
 0. S. iii. 123 ; and see Tutth v. Standhh, N. S. i. 766. 
 
 413. The defendant was indorser of a bill of exchange drawn by A. on B., 
 and accepted by B. Notice of the non-payment of the bill by the acceptor was 
 sent to him, which described the bill as " drawn by you," and wholly omitted 
 the name of the real drawer, but otherwise described the bill correctly and as in- 
 dorsed by the defendant. Held, that the notice was sufficient to charge the 
 defendant in the absence of proof on his part that he had drawn any such bill, 
 or that he had indorsed any other paper of the same general description which 
 could have been mistaken by him for the bill in question. Gill v. Palmer, N. S. 
 i. 312 and 313. 
 
 414. If the holder of a bill of exchange makes a valid compromise with the 
 assignees of the acceptor, who is insolvent, by which the proof of the claim is 
 withdrawn and the insolvent estate released, he thereby discharges from liability 
 a stranger to the bill who wrote his name upon the back of it before its delivery. 
 Phcenix Cotton Manufacturing Co. v. Fuller, N. S. i. 504. 
 
 415. The taking of money by the holder of an overdue note from the maker, 
 in consideration of forbearance for a time to eonic to press him for payment, and 
 forbearance accordingly, wiUiout the consent or knowledge of an indorser who 
 has been duly notified of the dishonor of the note, will discharge the latter from 
 his liability thereon. Vea:ie v. Carr, N. S. i. 4.35. 
 
 416. In an action against the maker of a note, payable at a specified length 
 of time after its date, brought by an indorsee, who obtained it for value before its 
 apparent pay day, and without knowledge of mistake in its date, the maker, in 
 order to establish a defence that the action was prematurely brought, is not 
 allowed to prove, that by mistake thc'note bore a date earlier than the day upon 
 which it was actually made. Huston v. Young, O. S. i. 188. 
 
 417. A subscribing witness to a note need not write thereon for what purpose 
 he affixes his signature. Farnsworth v. Rowe, 0. S. i. 188. 
 
 418. Holder of note representing it as for valid consideration is estopped from 
 denving its validity or setting up the defence of usury. Purshall v. Luinoureux, 
 N. S. ii. 186. 
 
 419. But an accommodation guarantor not making such representations may 
 set up the defence of usury as if he were merely an indorser. Id. 
 
 420. Agreement between payee and maker to apply former's indebtedness in 
 payment. Davis v. Spencer, N. S. ii. 59. 
 
 421. Failure of consideration. Lester \. Palmer, Vi. S. ii, 62. 
 
 422. But any fact or transaction which raises an equity between such parties, 
 and shows it to be inequitable or a fraud to enforce the contr.'vct, — as that the 
 indorsee is an agent, or that the note was indorsed for a special purpose creating 
 a trust, or for the accommodation of the indorsee, or pursusint to an antecedent 
 agreement that the note should be taken for a debt or for goods, on the responsi- 
 bilitv of the maker alone, may be shown by parol in bar of the action. Dale 
 V. Omr, N. S. xii. 14. 
 
 423. In an action on a note since the Code, in New York, the defendant has 
 a right to prove that the plaintiff is not the real owner. Eaton v. Alger, N. S. 
 X. 70. 
 
 424. A payee of a note will not be allowed to get rid of a defence of want 
 of consideration, bv transferring a share of the obligation to another. Suxlon v. 
 Dodge, N. S. x. 124. 
 
 4215. That the defendant was induced to purchase by false representations, 
 is a defence in bar of an action on a note for the purchase-money, though 
 
138 BILLS AND NOTES. 
 
 defendant has not surrendered the article purchased. Groff v. Hansel, N. S. x. 
 408. 
 
 426. An offer to pay part in discharge of the whole, is not admissible in a suit 
 on a note against the maker. Id. 
 
 427. That the articles were not in the condition represented at the time of 
 purchase, is a good defence to a suit on note given for the price. Moreheud v. 
 Murray, N. S. ix. 445. 
 
 428. Evidence that, by the articles of partnership, one partner has no right to 
 indorse negotiable paper, is inadmissible to defeat a bond Jide holder. Michigan 
 V. Eldred, N. S. ix. 509. 
 
 429. The maker of a promissory note not governed by the law merchant, may 
 impeach the note for want of consideration in a suit by the assignee, thoujth the 
 note is accompanied by a writing stating that it is all right. Jaqua v. Mont- 
 gomery, N, S. X. 662. 
 
 430. The maker of a negotiable note who executes it in such form as to admit 
 of fraudulent alteration with ease and without leaving any trace of tlie fraud by 
 which a purchaser can be put on his guard, is estopped by his negligence from 
 setting up the alteration against a hand fide holder for value. Nebeker v. Cochran, 
 N. S. xiv. 697. 
 
 431. It is no defence to a suit on a note, that defendant told plaintiff when he 
 was about to buy, not to do so, that there was a promise when it was made that 
 it should not be negotiated and he would buy a lawsuit. Heist v. Hart, N, S. 
 xiii. 452. I 
 
 432. A parol agreement that payee will not negotiate, and will renew, is inad- 
 missible to vary the effect of a note. Id. 
 
 433. Where II. discounted a note, made by F. and indorsed by M., on which 
 was printed "credit the drawer," in a suit by R. against the mdorser, proof is 
 inadmissible that the note was an accommodation note, without notice that R. 
 was aware of the fact when he discounted the note. Mishler v. Reed S[ Henderson, 
 N. S. xiv. 520. 
 
 434. R. discounting the note was a bond fide purchaser for value, and could 
 not be affected by an understanding between IVI. and F. Id. 
 
 435. The fact that "credit the drawer" was not signed by the indorser, was 
 ■no notice to R. that M. was to control the proceeds. Id. 
 
 436. That the note was in possession of the maker before duo was not evidence 
 that he had paid it. Id. 
 
 437. The subsequent fraud of the payee in altering the terms of an agreement 
 on which a note was executed, the agrfeement not being attached to the note, does 
 not impair the immunity attaching to commercial paper in the hands of a bond 
 fide holder. Strougk v. G(ar, N. S. xiv. 580. 
 
 438. A note may be made payable with reasonable attorney's fee if suit is 
 instituted. Id. 
 
 439. A defence to an action on a note, that the sole consideration was certain 
 ice to be formed on ponds next winter, and that no ice was formed, is bad, there 
 being no warranty. Tuwnsendr. Water Commissioners, Is. S. xiv. 53. 
 
 440. Where the statement that a note was given for a patent was cut off. and 
 the note passed to a bond fide indorsee for value, the maker has no defence, though 
 consideration fail. Zimniirman v. Rote, N. S. xiv. 193. 
 
 441. The maker must guard tlie public against fraud and alterations. Id. 
 
 442. Where one makes his promissory note to a tliird party, at the request of 
 his creditor, who is a debtor to the payee, he cannot afterwards set up want of 
 consideration to a suit on the note. South Boston Iron Co. y. Brown, N. S xiv 
 454. 
 
 443. Failure to stamp a note docs not affect its validity, unless done with in- 
 tent to evade the law. Cole v. Cornelius, N. S. xiv. 642. 
 
 444. Note payable "by the 1st day of June," is payable on the 1st day of 
 June. Id. 
 
 445. Note secured by mortgage is not barred until the mortgage is. Alexander 
 V. Whipple, N. S. V. 701. 
 
 446. Where date of note is so badly written that the judge cannot read it, evi- 
 dence is admissible to show the true date, and this is for tlie iurv. Fender^on v 
 Owen, N. S. vii. 443. 
 
 447. Innocent omission to stamp a note docs not make it inadmissible in evi- 
 dence. TobeiJ.y. Chipman, N. S. vii. 64. 
 
BILLS AND NOTES. 189 
 
 448. The accident.')! omission to stamp a note at the time it is made will not 
 invalidate it. Green v. Lowrij, N. S, viii. 317 ; and see Hallock v. Jaudiii, N. S. 
 viii. 188. 
 
 449. A promissory note made since the 30th day of June 1864 cannot he 
 stamped in open court, and then read to the jury. Wigham v. Pickett, N. S. viii. 
 701. 
 
 450. In a suit on a promissory note it is sufficient to allcfre that the defendant 
 executed the notes ; the question of authority is one of evidence, and not of 
 pleading. Sliv('.n v. Rlppeij, N. S. x. 70. 
 
 Af>\. Where A. draws a promissory note in the usual form, to raise money liy 
 its sale, purporting to be "for value received," and B. indorses the note to C, 
 ■who sells it to D. at a discount of one and one-half per cent, per month, the 
 latter having no notice whateverof the purpose for which the note was made, 
 and having neitlier loaned nor intended to loan money on it to the maker or first 
 indorser, A. cannot be heard even after a release to give evidence to invalidate 
 the security in the hands of D. , a bond fide holder, on the ground of usury or 
 failure in the original consideration. Gauly, Willis, 0. S. iv...5Gl. 
 
 452. Note is not barred by lapse of time of limitation, if maker has lived out 
 of the state since it was due. Lawrence v. Bassett, N. S. ii. 557. 
 
 453. The sale of a worthless patent is not a sufficient consideration for pro- 
 missory note. Lester v. Palmer, N. S. ii. 62. 
 
 454. A note of plaintiffs due and held by defendant before the suit, is proper 
 subject of set-off, though plaintiff had no notice of it before his action. Cook v. 
 Mills, N. S. ii. 443. 
 
 455. In an action of trover by the payor of a note for $35 against the payee a 
 judgment for the plaintiff for one cent damages, does not entitle tlie payee to 
 enforce the collection of the note. Dearth v. Spencer, N. S. xii. 670. 
 
 456. It was no defence to a note given to a township trustee that the consider- 
 ation was township funds, and that the plaintiff had vacated his office. Rock v. 
 Stinger, N, S. xii. 406. 
 
 457. A promise made to a third party to pay a note will not enure to the 
 owner's benefit. Grant v. Ilerrill, N. S. xiv. 712. 
 
 458. A note payable by the 1st of November, may be properly declared on as 
 payable on the 1st of November, Preston v. Dunham, N. S. xiv. 709. 
 
 XIII. Measure of Damages. 
 
 459. Interest cannot be claimed on prepayments of a note, payable on time, 
 without interest. Parker v. Moody, N, S. x. 532. 
 
 460. Damages on dishonored bill on London. Wood v. Watson, N. S. vi. 
 566. 
 
 461. Eule thereof cannot be varied on account of depreciation of currency. 
 Id. 
 
 462. In an action against the drawer of a bill of exchange not bearing inter- 
 est which has been dishonored by non-acceptance, if the jury find the plaintiff 
 entitled to interest by way of damages, the measure of damages is the rate of 
 interest at the place where the bill was drawn. Gihbs v. Fremont, 0. S. ii. 113. 
 
 463. Measure of damages in action for omitting to present a note at maturity 
 and give notice. Bridge v. Mason, N. S. v. 565. 
 
 XIV. Action on Lost Note. 
 
 464. The owner of bank bills which cannot be identified or distinguished from 
 other similar bills, cannot maintain an action against the bank which issued them 
 upon circumstantial evidence that they have been destroyed; and in such case a 
 bond of indemnity does not afl^jrd to the bank an adequate protection. Tower v. 
 Applelon Bunk, N. S. i. 436. 
 
 465. The record of the notary being proved to contain a true copy of the 
 original note, was admissible in evidence. Bitter v. Singmasler, N. S. xiii. 521. 
 
 466. The owner of a lost note cannot maintain an action at law against 
 the indorser, in a case where a bond to indemnify the defendant against being 
 called on a second time to pay the note would not afford to him an adequate 
 protection. Tuttle v. Standish, N. S. i. 766. And see Croive v. Clai/, 0. S. iii. 
 12.3. 
 
 XV. Lex Loci. 
 
 467. Where no place of payment is named, a note is construed according to 
 the law of the place where it is made. Stickncij v. Jordan, N. S. x. 532. 
 
140 BILLS AND NOTES— BOND. 
 
 468. Compound interest is recoverable in Maine on a note payable there. 
 Stickney v. Jordan, N. S. x. 532. 
 
 469. A hill of exchange is to be governed by the laws of the state where it is 
 payable. Bright v. Judson, N. S. vi. 436. 
 
 470. A note dated in Massachusetts, and delivered there, though signed in 
 another state, is to be taken as a contract made in Massachusetts. Lawrence v. 
 
 '(, N. S. ii. 557. 
 
 BILL OP PARCELS. 
 
 When the contract of sale is complete its terms cannot be changed by refer- 
 ence to a bill of parcels subsequently rendered by the vendor. Allen v. Schuch- 
 ardt, N. S. i. 13. 
 
 BIOGRAPHICAL NOTICE of John Dickinson. Note to 0. S. i. 75. 
 " " of Joseph Gallowav. Note to 0. S i. 75. 
 
 " « of M. Libri. O. S. i. 136. 
 
 " "of John Sergeant. O. S. i. 193. 
 
 " " of Horace Binney Wollace. 0. S. i. 311. 
 
 " " of Daniel Webster. 0. S. i. 59. 
 
 BIOGRAPHICAL SKETCH of Ch. J. John B. Gibson. 0. S. i. 504. 
 
 BIRTH OF CHILD of a citizen of the United States in a foreign country constitutes 
 him an alien with certain exceptions ; discussion of the subject. 0. S. ii. 193, 
 
 BLACKSTONE'S COMMENTARIES, criticism of. 0. S. viii. 58. 
 
 BLACKWELL, Hon. ROBERT S., obituary notice of. N. S. ii. 501. 
 
 BLANKS. 
 
 1. As to the eifect of delivery of a bond, by obligor, with blanks therein. 
 South Berwick v. Huntress, N. S. vi. 247. 
 
 2. An examination of the English and American eases relating to sealed 
 instruments executed in blank or altered after delivery. See Chauncey v. Arnold, 
 0. S. ix. 608. 
 
 3. Bill of exchange indorsed in blank, holder takes as against acceptor. Fair- 
 claugh v. Paira, 0. S. iii. 123. 
 
 BLOCKADE. 
 
 1. A breach of blockade by neutrals is not an offence against the municipal 
 law of England. The Helen, N. S. v. 176. 
 
 2. Belligerent cannot blockade moutli of river occupied on one bank by neu- 
 trals with right of navigation. 2'he Peterhoff, N. S. vii. 62. 
 
 3. Vessel from one neutral part to another does not violate blockade though 
 the ultimate destination of the cargo be to the enemy. Id. 
 
 BOARD OF WARDENS. 
 
 The Board of Wardens of the port of Philadelphia have jurisdiction to au- 
 thorize the construction of wharves, &c., in the river Delaware as far north as 
 the mouth of Frankford creek. Frankford v. Lennig, O. S. i. 357. 
 
 BOARDING-HOUSE KEEPERS. 
 
 Duties and liabilities of, discussed. 0. S. iii. 257. 
 
 BOAT ACT. / 
 
 The operation of the Boat Acts on the western rivers considered. The cases 
 cited and commented on. Hill v. Golden Gate; Johnson v. The Ambassador. 0. 
 S. vi. 27 3. 
 
 BONA FIDE. 
 
 Where negotiable paper has been put in circulation by fraud, proof of the 
 circumstances may be given ; when it is incumbent on the holder to show that he 
 is a bond fide holder, and for a valuable consideration. Cummingi v. Mead, 0. 
 S. vi. 51. 
 
 BOND. See Bottombt Bond. Coupon Bond. 
 I. Execution and Delivery. 
 
 1. Irregular execution- by one named in, and the witness, may be shown by 
 parol, and former held liable. Richardson v. Boynlon, N. S. vi. 314. 
 
 2. An instrument under seal to pay a sum of money, whenever the obligor 
 
BOND. , 141 
 
 shall, in his opinion, be nble, imposes a moral, but not a legal obligation to pay 
 the amount. Xehon v. Von Bonnhorxt, 0. S. vi. 151. 
 
 3. In replevin, where statute requires tlie bond to ber given with two or more 
 sureties, is not void because signed by one surety only. Blgelomy. Ccmegi/s, 0. 
 S. iv. 768. 
 
 4. An obligor cannot avoid his bond by showing that he was induced to sign 
 by fraud of one of his co-obligors. Iii. 
 
 5. In tlie penal part of a bond the names of fourteen obligors are inserted, 
 binding themselves in a penalty to T. The condition recites that T. has admitted 
 
 the above bound his deputies in the office of sheriff, and that if the above 
 
 bound shall well and truly discharge their respective oflSoes as sheriffs as afore- 
 said, &c. — the names of the parties who are admitted as deputy sheriffs being 
 omitted. Two of the persons, whose names are inserted in tlie penal part of the 
 bond, did not sign it, and one signed whose name did not appear in the body ol' 
 the instrument. On a motion by administrator of T., the hi(.'h sheriff, for 
 the default of one of the fourteen who had signed the bond as deputy sheriff, 
 held : 
 
 (1). That there being nothing on the face of the bond to indicate that all 
 named in the penalty were not appointed as deputies, they are estopped from 
 denying the fact. 
 
 (2). That each one must bo regarded as a principal as far as his own acts are 
 involved, and the others are his sureties. That though some named in the pen- 
 alty did not sign, the parties who did sign ai-e bound. 
 
 (3). That a party signing the bond whose name is not in the penalty, 
 does not vitiate the bond, and he is bound as an obligor. Cox v. Thomas' Adm., 
 O. S. iii. 52. 
 
 6. It is necessary to the valid execution of a bond that it should be subscribed 
 and delivered. Wild Cat ffranch v. Ball, N. S. xiv. 53. 
 
 7. To subscrilie is to write the name at the end or bottom of a writing. Id, 
 
 8. The name of the obligor in the body of the bond, though written by himself. 
 Is not a valid execution. Id, 
 
 9. Sureties may agree to become liable and assent to delivery of a bond, though 
 principal has not signed. Id. 
 
 10. Execution of joint administration bond makes each (executor and admin- 
 istrator) liable for the other. .Jeffries v. Lawson, N. S. vi. 507. 
 
 11. Bond given on an appeal does not require a stamp. Vioht v. Heath, N. 
 S. vi. 719. 
 
 12. Where a party authorizes another to sign an ofBcial bond for him as 
 surety, provided it is also signed by certain others, and it is never signed by 
 such others, he will not be bound. Baffot v. Dennison, N. S. x. 749. 
 
 13. A surety who signs a bond in blank cannot in a suit on the bond set up a 
 private understanding he had with the principal as to the filling up of the blanks. 
 Butler V. United States, N. S. xiv. 521. 
 
 14. An insolvent's bond is in legal proceedings and need not be stamped. 
 McGovern v. Hosback, 'S. S. vii. 64. 
 
 15. Coupon detached from bond is still lien under the mortgage. Miller et 
 al. V. Railroad Co., N. S. vii. 762. 
 
 16. Coupon is part of the mortgage-debt, and holder on foreclosure is entitled 
 to share pro rata. Id. 
 
 17. Coupon bonds payable to bearer are negotiable securities. Thomson v. 
 Lee Co., iST. S. v. 571. 
 
 18. Coupons are negotiable evidences of debts for interest, and are, in sub- 
 stance, promissory notes, payable at a specified time. If taken by any person, 
 after they are due, they are taken subject, to all the equities which properly 
 attach to them in the hands of the previous holder. Bank, v. New Orleans, N. 
 S. V. 555. 
 
 19. When valid by heir apparent, that he will devise future-acquired estate. 
 Jenkins v. Stetson, N.' S. v. 182. 
 
 20. The absence of the indorsement of the governor of the state, on bonds 
 issued by the United States to such state, and their being overdue when they 
 passed from the state treasury, raises no presumption that they were issued for 
 treasonable or unlawful purposes. National Bank of Washington v. Texas, N. 
 S. xiv. 192. 
 
142 BOND. 
 
 II. COEPORATIOV AND McNICIPAL. 
 
 21. Bonds of ii city issued under a special act are not exempt by force of a 
 clause in the freneral "charter, stating " that bonds issued by the mayor, &c., shall 
 be free of taxes." Freese, Pros., v. Woodruff, N. S. xiv. 263. 
 
 22. The holder of a city bond issued to a plonli-road company or bearer, issued 
 in aid of the construction of the- road, in pursuance of a lejrislative act, is not 
 bound to examine the records of the city to ascertain whether 'the resolution of 
 the council for issuing the bonds corresponds with the resolution recited in the 
 bonds. That recital binds the city. AJi/gatt v. 7he City of Green Bay, 0. S. 
 viii. 271. 
 
 23. Municipal bonds issued under special Icgi.slative authority to aid railroads, 
 are taxable as puhlic stocks. Nail v. Cormnissioners, N. S. v. 320. 
 
 24. When bonds issued by county, for subscriptions to railroads, bind. County 
 V. Parker, N. S. v. 506. 
 
 25. Erasure of name ot a signer of a bond to the government, though before 
 approval and acceptance, discharges a subsequent signer. Smith v. Unitad States, 
 N. S. iv. 511. 
 
 26. Where a bond for the payment of money is issued by a railroad company to 
 
 , or assignees, an lawful holder, by delivery or transfer, may insert his 
 
 own name in the blank as the payee, and maintain an action thereon, Iluhhard 
 V. Nlw York ^ Harlem Railroad' Co., N. S. i. 633. 
 
 27. Coupons or interest-warrants att.iched to bonds of a city issued to a rail- 
 road company for stock by the city subscribed for, in pursuance of a local law, 
 are not original obligations or promises to pay the bearer, and have no legal 
 validity independently of the bond. Clark v. City of .Tanesville, 0. S. iv. 591. 
 
 28. A founty has no power to borrow money, or subscribe for railroad stock. 
 Stokes V. The County, O. S, ix. 458. 
 
 29. Subject of powers and liabilities of counties discussed. Id. 
 
 30. Sale of railroad bonds — erroneous certificate of their being secured by 
 first mortgage — how far defence to a note for the purchase-money. Edwards v. 
 .1/«rc^, N. S. i. 248. 
 
 HI. TiTLis TO Bond. 
 
 31. The bond fide holder of railroad bonds having no notice of any defect in 
 the title of the seller, has a perfect title to them, clear of all equities between the 
 company and seller. The Morris Canal and Banking Co., Appellants, v. Fisher, 
 Appellee, 0. S. iii. 424. 
 
 32. Railroad or canal bonds, with coupons, deposited as collaterals for the 
 payment of promissory notes, may be sold if the notes are not paid at maturity, 
 the presumption being that such was the intention of the parties. The Morris 
 Canal and Jianking Co. v. Lewis, 0. S. vi. 428. 
 
 33. Without a special agreement to that effect, ordinary bonds and mortgages, 
 or promissory notes, deposited as collaterals, cannot be sold to raise the money. 
 Id. 
 
 34. A bondholder who converts his bonds into stock, in accordance with a 
 „ provision to that effect, is only entitled to receive stock to the amount of the 
 
 principal of his bond, and cannot claim a share of any new stock that has been 
 issued by the company, to pay its interest to its stockholders. Sutliffy. C.^f M. 
 Railroad Co., N. S. xiii. 775. 
 
 IV. Assignment of. 
 
 35. The assignee of municipal bonds cannot maintain a suit in his own 
 name, there being no law in the state authorizing it. Clark v. Tlie City, 0. S. 
 iv. 591. 
 
 36. Such bonds do not by assignment to bearer ussume the character of nego- 
 tiable paper for the purpose of suit by the bearer. Id. 
 
 37. In order to entitle the assignee of a bond to rely upon a declaration of the 
 obligor that he has no defence as an estoppel, the former must show that he, was 
 n purchaser for value ; that the declaration was made before the assignment, 
 and that he paid his money on the faith of such declaration. Weaver v. Lynch, 
 0. S. iv. 383. 
 
 V. Eemkdy. 
 
 38. Sufficient proof of breach of bond to support another during life. Jenkins 
 V. Stetson, N. S. V. 182. 
 
 39. When broken and action for the breach thereof. Id. 
 
BOND. 143 
 
 40. When bond of indemnity to constable broken. Bancroft v. Winspeai-, N. 
 S. V. 505. 
 
 41. When action may be brought thereupon and what mny be recovered. Id, 
 
 42. Pri'miJ /"«cie a bondholder establishing his bond is entitled to his costs. 
 The Gauntlett, 0. S. i. 48. 
 
 43. A bond will not be reformed by striking out portions alleged to be erro- 
 neous in the absence of evidence showing that it is not in conformity with a pre- 
 vious asrreement. Garner v. Bird ct al., Ex'rs, N. S. x. 62. 
 
 44. Recovery on bond assigned as collateral security, for amount less than face 
 of bond, does not satisfy and extinguish the bond as against the obligee. Bru- 
 magin v. Chew, N. S. viii. 125. 
 
 45. Loss of bond no objection to its payment on indemnity furnished. Miller 
 v. Railroad Co., N. S. vii. 262. 
 
 46. A bond deposited in escrow gives no right of action to the obligee, until 
 the condition on which it is held is performed. Roberts v. Mullenix, Iv. S. xii. 
 120. 
 
 47. If the bond is fraudulently obtained and assigned, the assignee obtains no 
 right against the obligor. Id. 
 
 48. Courts may issue mjindamus to county officer to levy tax to pay county 
 bonds even though a state court has enjoined the officer from so doing. Ri(jgs 
 V. Johnson ^ Co., N. S. vii. 572. 
 
 49. Mandamus is the proper and appropriate writ to compel a municipal cor- 
 poration to make provision for the payment of interest due upon bonds issued by 
 the same on payment of its subscription to the stock of a railroad company by 
 the assessment and collection of the necessary taxes. Ilumllion v. 1). Fdzsim- 
 mons, O. S. viii. 286. 
 
 50. United States bonds and treasury notes overdue are subject to the commer- 
 cial law of other paper of that character. Vermihje ^ Co. v. Adams Express Co., 
 N. S. xiv. 521. 
 
 5 1 . When overdue, a purchaser takes subject to the rights of antecedent 
 holders. Id. 
 
 52. No custom of bankers and brokers can be proved in contravention of this 
 rule of law. Id. 
 
 53. When served with notice of the loss of such paper by the rightful owner, 
 after maturity, they should make lists to enable them to recall the service of no- 
 tice. Id. 
 
 54. If stolen from an express company, such bonds may be recovered of 
 the "purchaser by the company. Id. 
 
 55. As to when owner can sue on coupons without bonds. Thompson v. Lee 
 Co., N. S. V. 571. 
 
 56. To secure bond by which time for payment of prior indebtedness was ex- 
 tended. See Bank v. Bowman, N. S. v. 182. 
 
 57. The obligor on a bond of indemnity is liable to the sheriff as well as to 
 the person claiming the property. Stewart v. Thomas, N. S. ix. 327. 
 
 58. The discharge of the debtor in bankruptcy, after breach of an insolvent 
 bond, is no defence to the sureties on the bond. QIafltn v. Cogan, N. S. ix. 512. 
 
 59. The obligor may make any defence, when sued by the sheriff, that the lat- 
 ter could have made in the original suit on his official bond. Stewart v. Thomas, 
 N. S. ix. 327. 
 
 60. A judge of the United States has power, on just grounds of suspicion, to 
 require bond to observe the neutrality laws. United States v. Quitman, 0. S. ii. 
 645. 
 
 VI. When void. 
 
 61. A judgment on an unstamped bond is not void. Ritter v. Brendlinger, N. 
 S. viii. 638. 
 
 62. Though a bond accompanying a mortgage is void, it does not follow that 
 the mortgage is also. Kidd v. Conway, N. S. xii. 663. 
 
 63. When bond, perfect and unconditional upon its face, cannot bo avoided by 
 sureties on ground that they signed the same upon certain conditions. State v. i 
 Peck, N. S. vi. 575. 
 
 64. A bond signed on condition that it should be signed by a certain person as 
 co-surety, is void without his signature. People v. Bostwick, N. S. iv. 503. 
 
 65. A bond given for the price of a slave sold in 1859 is valid. West v. IlaU, 
 N. S. ix. 390. 
 
144 BOND, 
 
 66 A bond given for the hire of a slave for 1865, on January 2d 1865, is 
 subject to be scaled according to the value of the hire for a year, in lawful money. 
 Maxwell V. Hijjp, N. S. ix. 390. 
 
 67. Voluntary bond unstamped not void, unless omission was to evade the Act 
 of Confrress. McGocern v. Hosback, N. S. vii. 64. 
 
 68. That the bonds are made payable to the Maysville & Lexington Railroad, 
 instead of to the president and directors of said company, is an objection of mere 
 form, and without substance. Graham v. Maddox, O. S. vi. 589. 
 
 69. Bonds issued by a municipal corporation, though not authorized by an ex- 
 isting statute, become binding if they are subsequently ratified by the legislature, 
 Steinesv. Franklin Co., N. S. x. 746. 
 
 70. Waiver of irregularities — bonds not void by being not in the strict form 
 pre.xcribed by the statute. Morton v. Campbell, N. S. ii. 185. 
 
 71. The fact that the obligor employed a lawyer who gave him bad advice and 
 thereby induced him to sign the bond, furni^hes no authority to a court to alter 
 the contract. Garner v. Bird's Executors, N. S. x. 62. 
 
 72. Inattention or forgetfulness of the time, place or person to whom a bond 
 is to be paid will not excuse the non-payment. Spring v. Fisk, N. S. x. 276. 
 
 73. Where a bond is signed by an illiterate person upon misrepresentations as 
 to its contents, it is not his deed, but is void ab initio. In such case it is not 
 material whether the obligee had knowledge of the misrepresentation or not. 
 But where the contents are correctly stated, but the obligor is induced to sign it 
 by misrepresentations of facts, it is his bond, though he may avoid it for the 
 fraud. Schuylkill Co. v. Copley, N. S. x. 783. 
 
 74. Such a bond not void for uncertainty. Jenkins v. Stetson, N. S. v. 182. 
 
 75. Illegal combination — void at law as against public policy. Milton v. 
 Eckersley, 0. S. iv. 125. 
 
 76 Not void for uncertainty, if it can be made certain, by extrinsic facts. 
 Bankv. Bouman, N. S. v. 182. 
 
 77. Bond conditioned to emancipate slaves void. Prater's Adm'r v. Darby, 
 0. S. iii. 57. 
 
 VII. CoifSTEUCTIOJt OF. 
 
 78. A merely formal departure from the act of the legislature, in the mode of 
 framing the bond, will not render it void. Where the legislature directs bonds 
 of a city to be made " negotiable and transferable by the order of the president 
 and directors" of a railroad company, and the bonds on their face were made 
 payable to the " company and its assignee, or bearer," such bonds were held to 
 be valid. Maddox v. Graham, 0. S. vii. 746. 
 
 79. The Pennsylvania Act of 12th April 1851, authorizing the county of 
 Washington to subscribe to the stock of the Hempfield railroad, and to issue pay- 
 ment for the subscription the bonds of the county, is not a violation of either the 
 constitution of the state or of the United States. McCoy v. The County of Wash- 
 ington, O. S. V. 193. 
 
 80. The issue of coupon-bonds was aiithorized by the act. Id. 
 
 81. It is not necessary in a suit by the holder of the bonds or the coupons to 
 show that a subscription w;as in fact made, the bond reciting the fact. Id. 
 
 82. Where in a bond interest is made payable annually, and there is a failure 
 to pay it when due, interest on the unpaid interest is not recoverable without a 
 special agreement to that effect., Stokely v. Thompson, 0. S. viii. 231. 
 
 83. In a bond for $1000, conditioned that B. should not " piaetise medicine 
 within five miles of S.," the sum is a penalty and not liquidated damages. Big- 
 ony r. Tyson, N. S. xiv. 116. 
 
 84. The intention of the parties gathered extra the instrument may fix the sum 
 as liquidated, and the question is for the jury. Jd. 
 
 85. The term, " in good money after the war," in a bond, may be proved to 
 mean in " money good after the war." Lowers v. Earnhan, N. S. ix. 384. 
 
 86. An obligation payable to a certain person, " his attorney, executor, ad- 
 ministrators or assigns," though called a bond in New York, isheld not to be a 
 specialty, but a negotiable instrument, and governed by tlie rules applicable to 
 commercial paper. Blake v. Superi'isors of Livingston Co., N. S. xi. 398. 
 
 87. Official bonds and those given by trustees for faithful administration should 
 bo construed with reference to the period which they are intended to cover and 
 not with reference to the date or the time of execution of the instrument Moore 
 V. Potter, N. S. xii. 764. 
 
BOND. 145 
 
 VIII. Of ALTEKA.TION OF BoNDS AND OF FILLING BlANSS. 
 
 88. Effect of delivery, by obligor, with blanks tberein. South Berwick v. 
 Huntress, N. S. vi. 247. 
 
 89. Penal sum may be inserted in such case. Id. 
 
 90. A bond executed by two persons, witli a blank in the bond where the name 
 of the obligee is to be inserted, and delivered, in this condition, to one of the 
 persons by the other, with parol authority to borrow money upon it and to insert 
 the name of the person from whom the money is obtained, in the blank, as the 
 obligee, is a mere nullity and is not the deed of the person so delivering it. 
 Preston v. Bull, N. S. xii. 699. 
 
 91. An agent cannot be empowered by parol to insert the name of the obligee 
 in such an instrument. Id. 
 
 92. The case of Texira v. Evans decided not to be law in Virginia. Id. 
 
 93. A material alteration of a bond by the holder of it, avoids the instrument, 
 even though it appear that it was honestlv made for tlie purpose of correcting a 
 mi'^take. ' Ml'er v. GUlekmd, 0. S. i. 120. 
 
 94. Alteration of, after execution, avoids it. Id. 672. 
 
 BOOK OF ORIGINAL ENTRIES. 
 
 When not artmi.'ssihle to prove that credit was given to a testator. See Dexter 
 v. Booth, N. S. i. 382. 
 
 BOOM. 
 
 An injury to a boom is not a maritime tort and cannot be redressed in ad- 
 miralty. Brig City of Erie v. Canjields, N. S. xiii. 395.. 
 
 BOSTON. 
 
 In the port of Boston there is no general custom or usage engrafted into the 
 maritime law, and making a part thereof which forbids the unlading of vessels, 
 and a tender of freight to the consignees, on a day set apart by proclamation for 
 a church festival, fast or holiday. Richardson v. Goddurd, 0. S. viii. 278. 
 
 BOTTOMRY BOND. 
 
 1. Advance of freight. — Where advances of the freight have been bond fide 
 made under a charter-party anterior to the time when a bottom i-y bond is given, 
 the bond does not attach upon the freight so advanced. The ,Tohn, 0. S. i. 48. 
 
 2. Bottomry bond and simple loan, distinction between. 0. S. iii. 477. 
 
 3. The general principle, that bonds of bottomry can alone be given for the 
 furtherance of the voyage in which the vessel is actually engaged, not affected by 
 the circumstance that by the law of the country where she is seized, the vessel 
 nay be arrested and sold for any debt owing by the owner to a creditor residing 
 in that country. The Osman/i, 0. S. i. 49. 
 
 4. Where a ship sailed from Baltimore, bound for Portland, Oregon, and was 
 compelled to put into Rio to refit, and after being refitted sailed for San Francisco, 
 but was again compelled to return to Rio, a bottomry bond executed at Rio 
 having been made payable at San Francisco : Held, no abandonment of tlie 
 voyage to Portland, San Francisco being on the route to the place of final desti- 
 nation. Winter v. Delaware Ins. Co., O. S. vi. 572. 
 
 5. Where a bill is drawn, and a bottomry bond taken for the same sum, the 
 bill must share the fate of the bond. Maitland ^ Co. v. The Atlantic, 0. S. iii. 
 477. 
 
 6. Where A., the master of a brig, puts into a foreign port by reason of a 
 leak, and there borrows money from B. and draws a bill of exchange upon C, 
 which bill is unpaid at maturity, and at the same time that the bill is drawn, he 
 also executes a mortgage or hypo'hocation, in which there is a special stipulation 
 that B. is not to take the usual marine risks in cases of bottomry and hypotheca- 
 tion, neither instrument establishes a lien upon the brig, which can be enforced 
 in the admiralty, for want of jurisdiction. Id. 
 
 7. A bottomry bond granted in New York by the master of a vessel whose owner 
 ■was residing at St. Johns, Now Brunswick (a communication by electric tele- 
 graph existing between the two cities), held to be valid, although the bondholder 
 had previously acted as agent in the concerns of the ship, and no intimation had 
 been made to the owners of the ship of the bottomry transaction until after the 
 bond had been executed. The Oriental, 0. S. i. 48. 
 
 8. A British ship, whose master and officers had been murdered in a mutiny, 
 came into a foreign port, where the British consul took possession of her, ap- 
 
 10 
 
146 BOTTOMRY BOND— BOUNDARY. 
 
 pointed a master, and pare a bottomry bond on the ship. Bond- pronounced for. 
 The Ci/nthia, 0. S. i. 49. , , , ^ . ■ • 
 
 9 No communication to the owners.— A bond of bottomry upon the ship, cargo 
 and' freight, granted by the master, with the consent of the owners of the ship, 
 in the country where those owners resided, upheld, although no previous comma- 
 nication was made to the owners of the cargo. The Bonaparte, O. S. i. 49. 
 
 BOUNDARY. . . v ^ ^ v . . ■ 
 
 1 . Where a conveyance of land describes it as bounded by a stream not navi- 
 frabie, or by a highway, whatever terms may be used in describing such boundary, 
 U must be construed as extending to the middle of the same, unless there is a 
 clear expression of an intention to limit it to the margin of such stream or way. 
 Woodman v. Spencer, N. S. xiv, 411. , 
 
 2. The reason of this rule is the strong and controlling presumption thnt it was 
 not the intention of the grantor to retain in himself a strip of land subject to iin 
 easement in the public which miglit be perpetual, and therefore of no compara- 
 tive use to him, and that it was equally not the intention of the grantee to cut 
 himself off from the privileges of an adjoining owner in the fee of the highway 
 and to run the risk of leaving his land inaccessible in case the public easement 
 in the road should be surrendered. Jd. 
 
 3. Where adjacent landowners alter the boundary line by agreement, ard 
 acquiesce in the alteration long enough to bar an entry under the Statute of 
 Limitations, they and their grantees will be bound by it. Bobo v. Mchmoiui, N. 
 S. xiv. 642. 
 
 4. Fixing a boundary line by parol is not within the Statute of Frauds— no 
 estate is created thereby. Id. 
 
 5.. Lands bounded on Lake Champlain extend to the edge of the water at low- 
 water mark. The same rule applied in this case to lands near the lake bounded 
 on a creek emptying into, and the waters of which ordinarily maintain the same 
 level, and rise and fall with those of the lake ; there being no claim made that 
 the boundary should extend to the centre of the creek. Judson B. Fletcher v. 
 Samuel. Phelps and Banujah Phelps, O. S. v. 677. 
 
 6. Monuments control courses and distances. Coburn v. Coxeter, N. S. xi, 
 722. 
 
 7. If course and distance ever control monument it is where the deed shows 
 clearly a mistake in the description of the monument. Id. 
 
 8. A lot of land was described in a grant as " beginning at a stake standing 
 on the bank or edge of Round Lake, thence," &c., (describing three lines of the 
 lot), "to a stake standing on the westerly bank or edge of the said lake, and 
 thence following the several courses of the said bank or edge to the place of be- 
 ginning." lield, 1. That the title under the grant extended to the margin ol 
 the lake, and was not limited by a stake standing on the bank. 2. That the 
 grantee was entitled to land formed in front of the the lots by the gradual reced- 
 ing of the waters of the lake. Under a grant of a "lake," reserving to the 
 grantor all mines and minerals, the soil of the lake passes. Burke v. Niles, N. 
 S. X. 118. 
 
 9. A lino established under a parol compromise will be supported and is not 
 affected by the Statute of Frauds. Kellum v. Smith, N. S. x. 533. 
 
 10. A line as actually run, takes precedence of one given in a deed. Knowles 
 V. Toolhaker, N. S. x. 601. 
 
 11. Calls in a deed are always controlled by lines on the ground. Craft v. 
 Yeaney, N. S. x. 797. 
 
 12. An oral award by referees, under tin oral submission, is competent evi- 
 dence upon a question of disputed boundary between the parties. Biiuin v. Uob- 
 ■6,'ns, N. S. iii. 120. 
 
 13. Oral agreement as to, uncertain. Proprietor v. Prescott, N. S. iii. 698. 
 
 14. Monuments and abuttals govern courses and distances in a description 
 in a deed. Bundy v. Morgan, N. S. xii. 401. 
 
 l."). Location of and acquiescence in, for more than twenty vears, conclusive. 
 Seed v. Farr, N. S. vi. 314. 
 
 16. Is evidence of highest nature. Id. 
 
 17. An ancient boundary of a municipal jurisdiction may bo proved bv general 
 rcputatii n. ' Morgan v. Mayor of Mobile, N. S. xiii. 52. 
 
 18. The location of a boundary is subject to parol evidence. Id. 
 
 19. In order to mcke mcnuments govern courses and distances, the location 
 
BOUNDARY— BREACH OF DUTY. 147 
 
 of the monuments must be proved, if no monuments are mentioned in a deeJ, or 
 if mentioned, are not proved, courses and distances will govern. Bagleij v. 
 Morrill, N. S. xiii. "08. 
 
 20. If land is described as lying north of a road-bed, while the boundaries 
 include the bed, it will pass by the conveyance. Williams U el. v. Spa:ks, N, S. 
 xiii. 776. 
 
 21. When the lines of a deed run to an artificial pond the grant is to the centre 
 of the pond. Jifunsur v. Blake, N. S. xiv. 194. 
 
 22. A deed which refers to a plat of land for one of the lines of a boundary 
 may be read in evidence without the production of tlie plat. Dreerij v. Cra(/, N. 
 S. X 62. 
 
 23. Ancient maps and surveys are evidence to ascertain boundaries and tix 
 monuments. McCausland v. Fleming, N. S. x. 63. 
 
 24. Deed in which the description of boundary is set out. See Wtlltleet v. 
 Truro, N. S. V. 1S6. 
 
 2.5. When boundary is settled and fixed by parol, and improvement made by 
 one on faith thereof, without objection, the other is estopped from disputing it. 
 Cocl-hiH V. binders, N. S. v. 509. 
 
 26. Declarations of deceased persons as to boundaries are competent evidence. 
 Woody. Wtllard, N. S. iv. 57,3. 
 
 27. Vendee may have action for fraudulent representations as to the buandaries 
 of his lot. Newdl v. Hurn, N. S. iv. 448. 
 
 28. The side boundaries of water-lots are to be governed by the course of the 
 stream and drawn at right angles with the central thread. Bay City Gas-lujkt 
 Co. v. Industrial Works, N. S. xiii. 526. 
 
 BOUNTY. 
 
 1. The right of a person who has enlisted, on a promise to be paid surh bounty 
 as a town may vote, cannot be defeated by a subsequent vote to rescind. Haven 
 T. Town of Ludlow, N. S. viii. 502. 
 
 2. A commissioned officer is not entitled to bounty. Hilliard v. Stewartstown, 
 'S. S. viii. 569. 
 
 3. Town voting to pay bounty to those who should enlist and be credited to its 
 quota, bound to pay those enlisted prior thereto, but mustered in and credited to 
 quota subsequently. Johnson v. N'Wfane, N. S. vii. 635. 
 
 4. The 12th and 13th sections of the Act of 1864, limiting the compensation 
 of agents for making the necessary p.apors to establish a claim for pension, 
 bounty or other allowance boCore the pension office, to ten dollars, and declaring 
 it to be a high misdemeanor for any such person to demand or receive any greater 
 compensation than ten dollars for iiis services under the Pension Act, &c., is not 
 unconstitutional. United States v. Fairch'Ids, N. S. vii. 306. 
 
 5. In the absence of authority so conferred, a town has no power to appropri- 
 ate monev for gratuities to men .drafted for the military service of the United 
 States. Booth v. Woodbury, N. S. v. 202. 
 
 6. A minor having enlisted with his father's consent is entitled to the bounty 
 paid bv the town to which he was accredited. £<ik:r v. Baker, N. S. viii. 509. 
 
 7. Certiorari proceedings of a board of supervisors to raise money for bounties 
 are net judicial. People v. Supervisors, N. S. iv. 704. 
 
 8. The payment of bounties to volunteers is for a public or municipal purpose, 
 and a law authorizing a municipality to raise money for this purpose is therefore 
 constitutional. Speer et al. v. School Directors of jBla.fr.-vil/e, N. S. iv. 601. 
 
 9. It is not contrary to natural justice that all the inhabitants of the state should 
 be taxed for gratuities to a part of their number who are called upon to render 
 military service to the general government. Booth v. Woodbury, N. S. v. 202. 
 
 10. A contract by which a minor paid his bounty-money to his master for his 
 consent to his enlistment may be rescinded by the minor's administrator, and the 
 money recovered back. Dinsmore v. Webber, N. S. xi. 533. 
 
 11. County bonds issued under eighth ebaptcr of New York Laws of 1864 for 
 purpose of paying bounties to United States recruits. People ex rel. iJo-e v. 
 Supervisors of Livingston, N. S. v. 60. 
 
 12. Offered to volunteers is pavahlo to drafted men allowed to volunteer for a 
 period longer than the draft called for. People v. Hammond, N. S. in. 249. 
 
 BREACH OF DUTY. 
 
 All the facts must bo stated out of which an alleged breach of duty arises. 
 Potts V. Plunkett, 0. S. vii. 555. 
 
148 BREACH OF THE PEACE— BRIDGE. 
 
 BREACH OF THE PEACE. 
 
 1. Where an ordinary driver of a passenger railroad line is driving for hire 
 for the company in the business of transporting passengers on and along the rail- 
 way track on the Sabbath day for the usual week-day fare, he is guilty of a 
 breach of the peace. Commonwealth v. Jeandell, O. S. vii. 615. 
 
 2. When worldly employment is carried on in such a manner and in such a 
 place as to disturb the peace of religious exercises of the community, either at 
 home or in churches, and cannot be restrained by the imposition of the penalty 
 in the act, such circumstances constitute a breach of the peace. Id. 
 
 BREACH OF PROMISE. 
 
 1 Promise need not be express. Hotchlcins v. Hodge, N. S. ii, 440. 
 
 2. Illegal consideration for promise. Id. 
 
 3. Evidence in action for. Id. 
 
 4. Evidence in mitigation of damages. Johnson v. Jenkins, N. S. ii. 120. 
 
 ■BRIBERY. 
 
 1. A promise by a candidate for office in consideration of receiving votes, to 
 give money or other valuable thing either to an individual or to the public, is 
 within the spirit of the laws against bribery ; and such promise, as well as the 
 votes thereby obtained, are void as against public policy. State v. Purdy, N. S. 
 xiv. 90. 
 
 2. A promise by a candidate to the voters at large to perform the duties of 
 the office for less than the sijary fixed by law, is within the same principle, and 
 all votes obtained by means thereof will be rejected by the courts in the count. 
 Id. 
 
 BRIDGE. See Constitittional Law. 
 
 1. Construction of acts of the legislature of New Jersey with regard to the 
 proprietors of the bridges over the rivers Passaic and Hackensacfc, and the a^'n'p- 
 ments made thereunder with respect to those rivers. Milnor v. New Jersej Uait- 
 road Co., 0. S. vi. 6. 
 
 2. Are state bridges constitutional ? discussion of the question. 0. S. iii. I. 
 
 3. A railway viaduct affording no facilities for crossing a river except to rail- 
 way cars, is not a bridge within the Act of New Jersey of 1790. Bridge Pro- 
 prietors V. Uoboken Co., N. S. iv. 55. 
 
 4. A general law that no bridge will be built so as to hinder navigation does 
 not take away from a subsequent legislature the power to grant right to erect such 
 bridges in particular places. Clarke v. Birmingham &• Piltiburq Bridge Co., N. 
 S. ii, 188. ^ " y y ' 
 
 .5, It is the duty of county commissioners knowing a bridge to be unsafe to 
 render it safe, or else to close it up, so as to prevent the public using it. Hum- 
 phreys v. The Cuunti/ of Armstrong, N. S. viii. 62. 
 
 6. Duty of municipal corporation to open and repair streets, sidewalks and' 
 bridges. Citi/ of Joliel v. Verley, N, S. v. 445. 
 
 7. The legislature can prohibit the erection of any dam or bridge over a navi- 
 gable stream which might impede navigation. Wisconsin Imp. Co. v. Lyons, N. 
 S. xii. 195. 
 
 8. A maritime lien does not exist upon a stationary structure like a bridge, and 
 therefore a court of admiralty has no jurisdiction of a proceeding in rem against 
 a bridge to recover damages caused to vessels navigating a public stream. 
 Galena Packet Co. v. liock Island Bridge, N. S. vii. 409. 
 
 9. A bridge corporation which demands and receives tolls of travellers is bound 
 to keep its bridge and approaches in safe condition for use, and cannot excuse 
 itself by impeaching its own title to maintain the same. Stanton v. Haverhill 
 Bridge Co., N. S. xiv. 469. 
 
 10. A town is not liable for a bridge being out of repair, which became so 
 suddenly by reason of a freshet. Jaiiuish v. Town of Ithaca, N. S. xiv. 319. 
 
 11. A court of the United States has no jurisdiction to restrain by injunction 
 the erection of a bridge over a navigable river lying wholly within the limits of 
 a particular state where such erection is authorized by the legislature of the state 
 though a port of entry has been created by Congress above the bridge. Milnor 
 V. New Jf.rsey Railroad Co.; Shardlow v. the Same; Bigetow v. the Same 0. S. 
 vi. 6. 
 
 12. A contract for the construction of all the grading, earthwork and masonry 
 for the road-bed of a railroad from a certain station to the Kennebec river in 
 
BRIDGE— BROKEK. 149 
 
 oluilcs work on the foundation of ii bridge iicross the snid river. Rogers v. Tloacm 
 N. S. X. 664. ^ ' 
 
 13. Townsliips are under no lcs;nl oWifration to keep in repair bridges and 
 culverts within their limits. I'ownMp of L<oni v. Tay'or, N. S. x. .'537. 
 
 14. A brid};e of sufficient elevation, or with a proper draw, is not necessarilv 
 an impediment to navigation ; neither is any structure or fixture such impediment 
 which facilitates commerce instead of being a hindrance. Jolleij U ul. v. Terre 
 Haute DrniB-bridge Co., O. S. iii. 29. 
 
 15. Bridge at Trenton, N. J., constructed under acts of the states of Penn- 
 sylvania and New Jersey, held to be taxable one-half by each state. The Com- 
 monwealth v. The Trenton Bridge Co., O. S. ix. 298. 
 
 16. Action of the case lies against municipality for injury to individual 
 resulting from want of repair of. Swootv. Ma^or, O. S. iii. 5!>. 
 
 17. Bridge over navigable river, jurisdiction of United States courts as to, 
 Mllnor v. Railroad Co., 0. S. vi. 7. 
 
 18. Upon principles of public law, it is clear that the power of erecting a 
 a bridge, and taking tolls thereon, over a navigable river which forms co-termi- 
 nous boundary between two states, can only be conferred by the concurrent legis- 
 lation of both states. Tlie Pren'.hnt, Managers, ^c, v. Tlie Trenton City Bridge 
 Company and others, O. S. ix. 298. 
 
 BROKER. 
 
 1. A public note or bill broker who sells a note, impliedly warrants the gen- 
 uineness of the signatures and indorsements ; and should the bill prove to be 
 forged, the loss must fall upon the vendor. Rieman v. Fichcr, 0. S. iv. 433. 
 
 2. A public broker must be regarded as the principal in his business transac- 
 tions, unless he discloses his agency at the time of the sale. Id. 
 
 3. Bonds payable to bearer, and passing by delivery only, were deposited with 
 bankers for sale custody, and the bankers afterwards fraudulently deposited Them 
 with their brokers as security for money advanced, and became bankrupt. It 
 was held, that the bonds were subject to the general lien of the brokers for all 
 money advanced by them to the bankers, and not merely for the advance made 
 upon the security of those particular bonds. Jones v. Pepercorne, 0. S. vii. 
 509. 
 
 4. Broker of merchandise, not disclosing his jirincipal, liable personally. 
 Humfreyv. Dale, 0. S. v. 551. ^ 
 
 5. Where a broker buys stock for a customer under an agreement to pay for it 
 and carry it, the customer to furnish and keep up a specified margin on the market 
 value, the broker holds the stock as a pledge for his advances and commis- 
 sions, and though the customer fails to keep up his margin after notice and de- 
 mand, yet the broker cannot sell the stock without giving reasonable notice to 
 the customer of the time and place of sale. Markhim v. ,/audon, N. S. ix, 285. 
 
 6. In an action for damages for the conversion of the stock by sale under 
 such circumstances, evidence of the eu.stom of brokers is not admissible to 
 show the rights of the parties or to explain the words "carry" and " margin." 
 Id. 
 
 7. In sucli action the measure of damages is the highest value of the stock 
 between the time of the sale and the time of tri.il. Id. 
 
 8. Sterling r. Joudan, 48 Barb. 459, and Hanks v. Drake, 49 Barb. 186, over- 
 ruled. Id. 
 
 9. A broker, effecting the sale of a house, may recover his commissions from 
 his employer, whether he has the legal title, or only holds beneJiciaUy for another. 
 Jones V. Adler, N. S. xi. 53. 
 
 10. Where a broker is not to be paid unless he sells at a stipulated price, such 
 price is a condition precedent to his right to compensation. Id. 
 
 11. If a broker introduces the purchaser or discloses his name to the seller, his 
 right to commissions attaches. Id, ^ 
 
 12. Real estate broker is the agent of vendor, and his services must be the 
 efficient cause of the sale. Earp v. Cummins, N. S. vii. 311. 
 
 13. Purchase of stock on margin not a pledge for payment of money requiring 
 notice to make legal sale. Hanks v. Drake, N. S. vii. 381. 
 
 14. Broker has right to call on his principal to make good his margin, and on 
 failure in reasonable time, to sell. Id. ., . ^ 
 
 15. Two hours not reasonable time, without further evidence, but acts of 
 principal may amount to ratification. Id. 
 
150 BEOKER. 
 
 16. If afterdemanr] principal fails to make cood his margin, broker may sell 
 without furtlier notice. Markham v. Jordan, N. S. vii. 572. 
 
 I". A broker who uses stock pledged, to borrow money for his own purposes, 
 without the owner's consent, is liable to the pledgor in an action for a conversion. 
 Lawrence v. Maxwell, N. S. xii. 470. 
 
 18. In such an action evidence that it is customary among brokers to use stock 
 in that way is inadmissible. Id. 
 
 19. Brokers who use the stock of their principals relying on such a custom, are 
 liable to return it, when called upon, if their demands are satisfied, and if they 
 cannot, they are liable in damages. Id. 
 
 20. Brokers employed to purchase stock and carry it, wrote to their principal 
 for further security or they would not carry it, the stock remained with tliem until 
 it was worthless. They were entitled to recover for the money advanced. Essi.r 
 V. Lindci-man, N. S. xii. 728. 
 
 21. If they had sold without further notice and the stock had advanced they 
 would have been responsible. Id. 
 
 22. Having proved the purchase of the stock they need not produce the certifi- 
 cate at the trial. Id. 
 
 23. "Where one purchases a chattel for another he may sue for the money with- 
 . out, a tender of the thing. 7c?. 
 
 24. Where one broker employs ."mother to sell the stock of his principal, the 
 latter cannot set off a debt due him by the oriainal broker in a suit by the princi- 
 pal for the proceeds. Evans r. Wain, N. S. xii. 728. 
 
 25. Evidence that it was the custom of brokers in their dealings with brokers 
 of other cities, to put all transactions between them into one account and settle 
 for the balance is inadmissible. Id. 
 
 26. The action for the proceeds was properly brought in the name of the prin- 
 cipal. Id. 
 
 27. An agent employed to sell goods on commission is a mere broker, and as 
 such is authorized to make contracts for the sale and delivery, but cannot make 
 them in his own name nor receive payment therefor. Dunn v. Wi-igM, N. S. 
 viii. 59. 
 
 28. Can sign contract of sale. Prinffle v. Spaulding, N. S. viii. 569. 
 
 29. Where an agent is interested as for commissions as a factor or broker, and 
 a contract is made in his name, he may maintain an action on it in his own name. 
 Telegraph Co. f. GUdersleve, N. S. viii, 692. 
 
 30. Where a broker sent by telegraph, in his name, an order for the purchase 
 of gold on behalf of his principal, which was never transmitted, he may sue in 
 his own name and recover the full amount of damages resulting from the breach 
 of contract. Id. 
 
 31. Is only entitled to commissions when the purchase is completed as agreed 
 on. Kimbertij v. Henderson, N. S. viii. 754. 
 
 32. Sales for their own account, subject to duty under Act of March 3d 1865. 
 United Stales v. Cutting, N. S. v. 565. 
 
 33. A real estate broker finding a purchaser for the land of his principal is en- 
 titled to his commissions, although the principal vary the price or terms of the 
 sale. Woods v. Strphens, N. S. x. 193. 
 
 34. The compensation for procuring the loan of money being fixed by statute, 
 cannot be enlarged in a particular case by anv testimonv. Perrine \. Ilotchkiss, 
 N. S. X. 345. 
 
 35. One employed to sell real estate and setting on foot negotiations resulting 
 in a sale, cannot be deprived of compensation by discharge previous to the con- 
 summation. Gillet V. Corum, N. S. x. 402. 
 
 36. A broker buying stock for another, and being ready at any time to deliver 
 it, may recover for the money advanced, though there might have been times 
 when no stock was in his name. Wpthoop v. Seal, N. S. x. 404. 
 
 37. Sharfes of stock are the same and ^. transfer made by another of the stock 
 would have been a compliance with the broker's contract. Id. 
 
 38. ihe defendant in the month of March put into the hands of the plaintiff, a 
 real estate broker, for sale, a house in a certain city street, at the price of $6500 ; 
 the plainiiff to receive a commission of one per cent, if he sold the house, the 
 defendant to have the right to sell it himself without being liable to a commission, 
 and the plaintiff not to advertise. The plaintiff entered the house on his books, 
 and in December and January following advertised houses for sale on that street! 
 
BKOKER— BUILDIXG RESTRICTIONS. 151 
 
 G., who lived on the street and was desirous of finding a house near by for a 
 friend, saw tlie advertisement and went to the plaintilt's office and learned that 
 the dei'enilnnt's house was for siile. He informed his friend, and the latter went 
 10 the defendant and nej;otiated with him for it, and finally purchased it. The 
 purchaser did not see the plaintiff nor go to his office, and G.'s action in the 
 matter was wholly voluntary. //»'</, thiit the plaintiff was entitled to his com- 
 mission. Lincoln r. McClatchie, N. S. x. 63-1. 
 
 39. A sale made by the defendant, upon which the plaintiff was to have no 
 commission, held, to mean a sale to a purchaser found by the defendant wholly 
 without the plaintiff's procurement. Id. 
 
 40. Ttie plaintiff, by some misunderstanding, had altered the entry of the price 
 on his books from $6500 to §6000, and gave the latter price to G. when he in- 
 quired. The defendant's price remained $6.tOO, and he sold the house for $6400. 
 Xleld, that the plaintiff was still entitled to liis commission. Id. 
 
 41. Commissions are earned when buyer is procured at price named by owner. 
 Clendenon v. Pancoast, N. S. xiv. 193. 
 
 42. A broker carrying stock for his customer is not bound to keep the identical 
 stock on hand. Price v. Gover, N. S. xiv. 2.50. 
 
 4-'^. Enlistment and desertion may be proved otherwise than by record — custom 
 of substitute — town quota. Li-hanon v. Heath, N. S. vii. 315. 
 
 44. Money paid to broker for substitute who proved to be a deserter, may be 
 recovered in action for money had. Id. 
 
 45. A broker cannot recover commissions unless he has taken out a license 
 under the Act of Congress of June 30ih 1864. Holt v. Green, N. S. xiii. 453. 
 
 46. Agent earns commissions when he finds a purchaser at the price, though 
 sale never completed Irom defect of title and without his fault. Dolij v. Miller, 
 N. S. v. 120. 
 
 47. Where broker was to have ten per cent, on the price for which he sold land, 
 the commissions are to be calculated on the real, not the nominal price. Wake- 
 fidd V. Merrick, N. S. v. 766. 
 
 48. If part of the consideration was other land, valued at a certain price 
 though not worth so much, the value set upon it by the parties is to be taken. Id, 
 
 49. Quaere, whether an agent employed by his principal to effect a policy of in- 
 surance is liable fur a breach of his duty as agent if he employ another person to 
 get the policy effected by a policy broker. Cahill v, Dawson, 0. S. vi. 176. 
 
 50. The duty of a real estate broker consists in bringing the minds of the 
 vendor and vendee to an agreement concerning the sale. Barnard v. Monnoi, 
 N. S. vi. 209. 
 
 51. Merchandise broker has no authority to warrant goods to be of merchant- 
 able quality. Dodd v. Farlow, N. S. vi. 127. 
 
 BUILDING. 
 
 The fragments of a building blown down by a tempest are not thereby con- 
 verted into personalty, but pass to the purchaser of the realty at sheriff's sale. 
 Rogers v. Giiiiiget, 0. S. vi. 430. 
 
 BUILniNG ASSOCIATION. 
 
 1. Where mortgages are held by a building association which is prematurely 
 dissolved, the mortgagors are to be allowed not only the sums paid as weekly 
 dues, but also what they have paid as interest. Windnor v. Bandel. N. S. xiv. 
 250. 
 
 2. Accord and satisfaction between building association and withdrawing 
 stockholder. Miller \. Building Association, N. S. v. 376. 
 
 BUILDING RESTRICTIONS. 
 
 H. being the owner of two city lots, one a corner property and the other ad- 
 joining it, granted and conveyed the corner lot to D. and K. in fee, reserving a 
 perpetual ground-rent, upon the express condition that the grantees, their heirs 
 and assigns, should not erect any building upon the back part of the lot higher 
 than ten feet. Some years afterwards C. bought the adjoining lot and M. the 
 corner lot. M. subsequently became the owner of the rent reserved, which thus 
 merged, and M. threatened to build in disregard of the restriction. C. filed a 
 bill in equity to restrain him, and applied for « special injunction, which was 
 refused ; and M. went on and erected a three-story back building. Held, upon 
 appeal from the decree of the court below : 
 
 (1.) That although the clause imposing the restriction was a strict condition 
 
152 BUILDING RESTRICTIONS— CANAL. 
 
 in law, yet equit)' would only inquire into the substantial elements of tlic agree- 
 ment, and would enforce it for any party for whose benefit it appeared to be 
 intended. 
 
 (2.) That the duty of the defendant not to build in violation of the conJition 
 was clear ; and that this duty was not reserved as a mere personal obligation to 
 H., the original grantor, his heirs and assigns, nor for the benefit of the grouiiil- 
 rent ; but that it was for the benefit of the adjoining property then owned by H., 
 and created an obligation to the owner of that property, whoever he might be i 
 and equity would interfere to enforce and protect his right. 
 
 (3.) That the defendant having built in violation of the condition, after bill 
 filed, the complainant was entitled to a decree of abatement without araemllni; 
 his bill, dark v. Martin, N. S. i. 479. ^ 
 
 CABINET OF UNITED STATES, duties of members of, opinion of Hon. C 
 Gushing as to, 0. S. v. 65. 
 
 CALIFORNIA LAND CLAIMS. 
 
 1. Fraudulent certificate — presumption of fraud in other title papers. United 
 States V. Galbraith, N. S. iii. 55. 
 
 2. Where the grant is produced with the date altered, without explanatory 
 evidence, the court will not confirm. Id. 
 
 3. Tlie ordinances of the King of Spain, made in 1783, prescribe tlie mofle of 
 acquiring title to mines, and were in force in Mexico at the time of the conquest 
 of California. United States v. Castillero, N. S. iii. 52. 
 
 CALIFORNIA LAND' LAW, see, Cervantes v. United States, 0. S. iii 745. 
 
 CALIFORNIA SPECIFIC CONTRACT LAW. 
 
 1. Is valid, and does not conflict with Act of Congress of July 11th 1862, 
 making treasury notes lawful money and u legal tender. Carpenter v. Athertan, 
 N. S. iv. 225. 
 
 2. Constitutionality of Legal Tender Act, discussed. Note to same ; and see 
 Van Husan v. Kanouse, N. S. iv. 571 ; and see note to Warren v. Paul, N. S. 
 iv. 161. 
 
 CANADA. 
 
 1. Manslaughter committed by a mortal blow given on the river St. Clair, 
 beyond the boundary line between the United States and the province of Canada, 
 and within a county of said province, from which blow death ensued on land, is 
 not.within the intent and meaning of the said act, though the blow was given on 
 an American vessel. People v. Tyler, O. S. viii. 403. 
 
 2. The subject of admiralty jurisdiction over tlie lakes and navigable waters 
 connecting them, considered, and the case of the Genesee Chief (12 How. 1443) 
 cotnmented on, per Christiancy, J. Id. 
 
 CANAL. 
 
 1. The use of a canal of an incorporated company cannot be restrained by 
 injunction on allegations of injuries to private parties by its use or construction. 
 Union Canal Co.'s Appeal, N. S. x. 405. 
 
 2. The admiralty jurisdiction of the United States extends to a tort, committed 
 by collision on an artificial ship canal connecting navigable waters which are 
 within that jurisdiction. The Steamer Oler, xiv. 300. 
 
 3. Where the state has taken a fee simple in lands for its canals, the former 
 owner cannot take the ice from the canal. T/te Waterworks v. Burkhart, N. S. 
 xiii. 254. 
 
 4. The granting of an injunction to restrain encroachment on a canal, consid- 
 ered as highway, will depend on the extent they impede navigation. Morris 
 Canal Co. v. Faijin, N. S. xi. 268. 
 
 5. By a decree of the Circuit Court, a claim was held to be a lien on an entire 
 canal. From this decree an appeal was taken to the Supreme Court, pending 
 which, the canal was sold under the decree, and tlie plaintiff in the decree became 
 the purchaser. The Supreme Court reversed the decree on the ground that the 
 claim was a lien on a section of the canal only. Held, that plaintiflf's title under 
 the sale was not affected by the rever.sal. Gordon v. Canal Co., N. S. viii. 27a. 
 
 6. Reversal of award of canal appraisers in New York. People v. Gardner, 
 H. S. ii. 119. 
 
 7. Canals constructed under the Internal Improvement Laws of 1836 (Ind.), 
 were built for navigation and to furnish hydraulic power, and the owner of tlie 
 
CAXAL— CARGO. 153 
 
 soil is entitleil to everv nse thereof not interfering with the casement. Edgerlon 
 et at. V. Huff, N. S. vi. 720. 
 
 8. And he may take ice from the canal, if it do not interfere witli navigation 
 or use of the water, /d. 
 
 9. The Morris canal is a public highway, though subject to tolls and regula- 
 tions of the company. Bamet v. Jolmson, N. S. vi. 569. 
 
 10. Eights of owners of land adjacent thereto. Id. 
 
 11. The company or its grantee will be restrained from interfering therewith. Id. 
 
 CANAL BOAT. 
 
 1. The admiralty has not jurisdiction of a libel for freight on merchandise 
 carried in a canal boat, about two hundred and fifty miles by canal, and only 
 about forty miles on tide-water. Wa/lis v. Chesney, O. S. iv. 307. 
 
 2. A mortgage on a canal boat, or a copy thereof, by a statute of New York is 
 required to be filed in the office of the auditor'of the canal department, and 
 within thirty days preceding a year another copy is required to be filed, or the 
 mortgage shall be void against creditors and subsequent bond Jide mortgagees 
 and purchasers. Berrick v. King et al., N. S. viii. 124. 
 
 3. To give jurisdiction on a contract of affreightment, the principal or chief 
 part of the service must be under the contract to be performed on tide-water. 
 
 Wallis V. Cheiney, 0. S. iv. 307. 
 
 CANON LAW. 
 
 The doctrine of the Canon Law adopted in Louisiana. Trowhridge v. Carlin, 
 her husband; Carlhi v. Henrietta Trowbridge^ his wife^ O. S. vi. 740. 
 
 CAPIAS AD SATISFACIENDUM. 
 
 Where one having arrested his debtor, defendant on a c.a. sa., sets him at liberty 
 on certain terms at his instance, it being "expressly acknowledged" by the de- 
 fendant that this is done ''for his accommodation, without any prejudice what- 
 ever to arise to the plaintiff's right by the enlargement" as aforesaid, or otherwise 
 however, the debt is paid at law. Magniuc v. Thomson, 0. S. il. 697. 
 
 CAPITAL. 
 
 1. The plaintiffs, a railroad company, were incorporated with a capital of 
 S.'jOO, 000, with power "to call the first meeting of the stockholders whenever 
 $100,000 or more of the capital stock shall have been subscribed for, to choose 
 directors and perfect the organization of said corporation," and '* when so or- 
 ganized to proceed to commence the construction of the railroad." The city of 
 New Haven subscribed $200,000 to the stock. In an action to recover subscrip- 
 tions, It was held that the term " organize" embraced merely the choice by the 
 stockholders of the officers, and $100,000 having been subscribed, the plaintiff 
 might legally commence business. iV. H. ^ U. Railroad Co. v. Chapman, N. 
 S. xii. 80. 
 
 2 The capital stock of a corporation is a trust fund for the benefit of the 
 general creditors, and they have a right to actual payment of stock subscriptions. 
 Sawyer v. Hoag, N. S. xiii. 327. 
 
 CAPTURE. 
 
 The legality of a capture of private property in time of war not to be pre- 
 sumed, it must be proved. Branner v. Felkner, N. S. a. 201. 
 
 CARE. 
 
 1. A master is bound to exercise proper care and diligence in the selection of 
 the agencies and instruments with or upon which he employs his servants ; and 
 if he fails to do so he will he liable to. the servant for any injuries he may sus- 
 tain therefrom. Noycs v. Smith, 0. S. v. 615. 
 
 2. Snnble that the existence of a state of intoxication on the part of a lodger 
 at an inn, raises a presumption of a want of proper care over his property on his 
 part. Projilet v. Hall, 0. S. viil. 561. 
 
 CARELESSNESS. 
 
 When an employee enters into the service of a railroad company, he assumes 
 the risks incident to such employment, such as the carelessness or unskilfulness 
 of his co-employees, when they were skilful or careful at the time of their em- 
 ployment. Hawley v. Ball. S/- Ohio Railroad Co., 0. S. vi. 352. 
 
 CARGO. 
 
 1. The true rule with regard to the right to contribution in the maritime law 
 
154 CARGO— CASES AFFIRMED. 
 
 is the achievement of the object designed, even for a short period of time, by the 
 sacrifice of the property ; and this will be suiiicient to give rise to and justify 
 contribution, notwithstanding there may he a subsequent loss, provided the latter 
 results from a new peril. In ie Cargo of the Great Republic, O. S. vii. 271. 
 
 2. Holidays do not seem to be favored in commercial law. The subject of holi- 
 days discussed historically, and as a matter of judicial decision. Ihngier v. 
 Gooclard, O. S. viii. 278. 
 
 CARRIER OF PASSENGERS. See Common Careiek. 
 
 J. A railroad company, in the absence of any statutory provision, is not bound 
 to fence in its track. Stucke v. The Milwaukee ^ Miss. Railroad Co., 0. S. vii. 
 732 ; and see Cattle. 
 
 2. Carriers— law of, discussed. 0. S. i. 65. 
 
 CASE STATED. 
 
 The Supreme Court of the United States cannot give judgment on a case 
 stated unless facts only are stated. Burr v. Desmoines Co., N. S. iv. .'54. 
 
 CASES AFFIRMED. 
 
 Avniar ?•. N. River Bank, 3 Hill 263, affirmed. Exchange Bank v. Montealh, 
 N. S. iii. 700. 
 ■ Baldwin v. Hale, 1 Wnll. 223 and 3 A. L. B. 462, and Same v. Bank, I 
 Wall. 234, affirmed. Gilmnn v. Lockicood, N. S. vi. 632. 
 
 Barto V. Himrod, 4 Seld. 488, in dark v. Roche^tcr, 0. S. v. 289. 
 
 Bavard v. Hoffman, 4 Johns, Ch. 450, in Hooper r. Rosenthal, 0. S. ~. 46. 
 
 Bayard i'. Shunk, 1 W. & S. 95, in Mclntire v. Kennedy, 0. S. v. 433. 
 
 Bliike V. Brackett, 47 Maine 28, affirmed. Hacl-Ht v. Lane, N. S. xiii. 123. 
 
 Boyd V. Curtderbuek, 31 III. 113, affirmed. Brovm v. Coon, N. S. iv. 507. 
 
 Bronson v. Rhodes, 7 Wall. 229, affirmed. TribUcockv. Wilson, N. S. xi. 151. 
 
 Burnham v. Kempton, 44 N. II. 78, affirmed. Griffin v. Bartlett, N. S. xiv. 
 711. 
 
 Burr V. Duryee, 1 Wall. 153, affirmed. Casev. Brown, N. S, iv. 575. 
 
 Campbell's case, affirmed. Matter of Burns, N. S. vii. 105. 
 
 Chicago V. Robbins, 2 Black 418, affirmed. Rohbins v. Chicago, N. S. vi. 633. 
 
 Commonwealth v. Johnson, 10 Harris 102 ; 2 Am. Law Reg. 285, affirmed 
 in Commonwealth v. Je.andell, O. S. vii. 615. 
 
 Dean v. Nelson, 10 Wall. 172, affirmed. Lascre v. Rochereau, N. S. xiii. 335. 
 
 De Groot v. United States, 5 Wall. 432, affirmed. Gordon v. United States, 
 N. S. viii. 244. 
 
 Dixon V. Baldwin, 0. S. vi. 563. 
 
 Dole f. Johnson, 50 N. H. 4.'i2, affirmed. ElJingwnod v. Bragg, N. S. xiii. 57. 
 
 Dunlap V. Bournonvillc, 26 I'enna. St. 12, in Leech v. Shantz, 0. S. v. 620. 
 
 Folson V. Insurance Co., 18 Wall. 237, affirmed. Cooper v. Omohundro, N. 
 " S. xiii. 654. 
 
 Gelpcke v. City of Dubuque affirmed. Hcvcmei/cr v. Iowa Co., N. S. v. 566. 
 
 Gelpcke V. Dubuque, 1 Wall. 175, affirmed. Mitchell v. Burlinqton, N. S. vi. 
 638. 
 
 Genesee Chief and Oregon v. RoUo, 0. S. vi. 422. 
 
 Goddard v. G. T. Railroad Co., 57 Maine 202, affirmed. Hanson v. E. &• N. 
 A. Railroad Co., N. S. xiv. 197. 
 
 Havemeyer v. Iowa Co., 3 Wall. 294, affirmed. Mitchell v. Burlinqton, N. S. 
 vi. 638. 
 
 Hill u. Golden Gate, 0. S. vi. 273. 
 
 Insurance Co. v. Ritchie, 5 Wall. 541, affirmed, llornthall v. Collector, N. S. 
 ix. 451. 
 
 Insurance Co: v. Wilkinson, 13 Wall. 222, affn-med. Insurance Co. v Mahone, 
 N. S. xiv. 525. 
 
 McClure v. Young, 2 W. & S. 147, in Lerch v. Fhnntz, S. v. 020. 
 
 Mitchell V. Rockland, 41 Me. 363 and 45 Me. 504, rc-uffirmed. Mitchell v 
 Rockland, N. S. vi. 189. 
 
 Monongnhela Nav. Co. ti. Coons, 6 Barr 382, affirmed in Clarke v Birminq- 
 ham, Sfc, Bridge Co., N. S. ii. 188. •' 
 
 Olmstead v. Camp, 33 Conn. R, 532, confirmed. Todd v. Austin N. S. viii. 9. 
 
 Prigi; V. Pennsylvania, in Moore v. Tlinois, 0. S. i. 206. 
 
 Quain's Appeal, 10 Harris 510, affirmed. Williams's Appeal, N. S. iv. 312. 
 
 Riggs t. Johnson Co., 6 Wall. 106, affirmed. Supervisors v Durvnt N S 
 jx. 448. ■ , . . 
 
CASES AFFIRMED— CASES APPKOVED. 155 
 
 Rogers v. Burlington, 3 Wall. 654, affirmed. Mitchell v. Burlington, N. S. 
 xii. 638. 
 
 Simpson V. Hand, 6 Whart. 311, in Railway v. Skinner, 0. S. i. 97. 
 
 Smith V. Miller, 31 Illinois 153, affirmed. Brown v. Coon, N. S. iv. 507. 
 
 Starin v. Genoa, 23 N. Y. 439, affirmed in People ex rel. Fiedler v. Mead et al. 
 249. 
 
 St. John V. Paine, 0. S. vi. 422. 
 
 Sullivan V. The I'hiladelpliia and Reading Railroad Company, 6 Casey 234, 
 affirmed in Pennsiihrinia Railroiul Co. v. Zcbe, 0. S. viii. 27. 
 
 Tiivlor et al. v. Painter, 3 Phila. R. 365, affirmed. IVilliams's Appeal, N. S. 
 iv. 312. 
 
 The Camanche, 8 Wall. 476, affirmed. The Bhcjcwall, N. S. ix. 774. 
 
 The China, 7 Wall. 58, affirmed. The Merrimac, N. S. xii. 185. 
 
 The Ourchita, 6 Wall. 521, affirmed. McKee v. United Stales, N. S. ix. 56. 
 
 The Raikes, 1 Hagg. 246, in Brook.i v. The Penn., O. S. i. 585. 
 
 The William Becklbvd, 3 0. Roll. 355, in Brooks v. The Penn., O. S. i. 587. 
 
 Thompson v. Whitman, 18 Wall. 457, affirmed. Knowles v. Gas-l:(jkt Co., N. 
 S. xiii. 591. 
 
 Union Baptist Society v. Candia, 2 N. H. 20, affirmed. South Hampton v. 
 Fow'er, N. S. xii. 669. 
 
 Van Allen c. The Assessors, 3 Wall. 575, s. 0. 5 Am. Law Reg., N. S. vi. 609, 
 re-affirmed and followed. Bradlei/ v. The People, and The People, Sfc., ex rel. 
 JJaer v. The Commis^ionrr.-, N. S. vi. 460, 467. 
 
 White V. Latimer, 12 Texas 61, affirmed in Thompson v. Cracjy, 0. S. viii. 
 496. 
 
 CASES APPROVED. 
 
 Ahleman v. Booth, 21 How. 506, followed in Re Spangler, N. S. ii. 598, and 
 in Re .Jordan, N. S. ii. 749. 
 
 iEtna Life Ins. Co. v. McCormick, 20 Wis. 565, approved. Scheer v. Kcown, 
 N. S. xiii. 711. 
 
 Allison V. Chandler, II Mich. 542, approved. Gilbert v. Kennedii, N. S. xi. 
 600. 
 
 Attorney-General v. Lothrop, 24 Mich. 235, approved. Park Corns, v. Com- 
 mon Council, N. S. xiii. 524. 
 
 Range v. Flint, 25 Wis. 544, approved. Murphij v. Dunning, N. S. xii. 126. 
 
 Barnes v. Hazelton, 50 III. 429, approved. Wadham^ v. Gay, N. S. xiv. 419. 
 
 Bay City v. State Treasurer, 23 Mich. 503, approved. Jd. 
 
 Blake v. The Midland Railway Co., 15 Eng. L. & Eq. 437, in Penn$ylcania 
 Railroad Co. v. Zehe, O. S. viii. 27. 
 
 Bloomer v. Mc-Quewan, 11 How. 549, approved. Bloomer v. Mdlinger, N. S. 
 jii. 695. 
 
 Chaffee v. Boston Belting Co., 22 Howard 223, approved. Bloomer v. Mil- 
 linger, N. S, iii. 695. 
 
 Clark V. Campan, 19 Mich. 325, approved. Bay City Gas Co. v. Industrial 
 Works, N. S. xiii. 526. 
 
 Cooper V. Nashville, 6 Wall. 247. approved. Clnrk v. Dick, N. S. ix. 739. 
 
 Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613, approved. Kickl v. 
 Conway, "S. S. xii. 663. 
 
 Crosby v. Roub, 16 Wis. 616, approved. Murphy v. Dunnmg, N. S. xii. 126, 
 
 Downs u. Planters' Bank, 1 Sm. & M. 261 ; Chick v. Pilisbury, 24 Maine 
 458. Lawson v. The Bank of Salem, O. S. i. 619. 
 
 Ex parte White, L. R. 4 Ch. App. 397, followed. In re Chamberlaines, N. S. 
 xiv. 688. 
 
 Fisk 1'. Tank, 12 Wis. 302, approved. Bonnell v. .Jacobs, N. S. xiv. 328. 
 
 Grosvenor t). The Atlantic Mutual Ins. Co., 3 Smith 391 ; in Bilson i. The 
 Man Ins. Co., 0. S. vii. 661. 
 
 Hanger v. Abbott, 6 Wall. 532, approved. The Protector, N. S. ix. 516. 
 
 HigL'ins u. Whitney, 24 Wend. 379, approved. Dalton v. Landhan, N. S. 
 xiii. 391. 
 
 House r. Foster, in Washington Co. Vt. 1852, cited. Johnson v. Muzzy, N. 
 S. xiii. 55. 
 
 Jones V. Pettibone, 2 Wis. 319, approved. Wisconsin Imp. Co. v. Lyons, N. 
 S. xii. 195. 
 
156 CASES APPROVED— CASES COMMENTED ON. 
 
 Jones V. Shawhan, 4 W. & S. 263. Siitton v. The Albatross, O. S. i. 87, 90. 
 
 Langdale v. Briggs, 39 E. C. L. R. 214, followed. Cross v. J)', Valle, N. S. 
 iii. 6.30. 
 
 Latimer v. Woodward, 2 Doug. 368, approved. Hoffman v. Harnngion, N. 
 S. xi. 532. 
 
 Lindauer o. Fourth National Bank, 55 Barb. 75, approved. Dod v. Fourth 
 National Bank, N. S. x. 600. 
 
 Manufacturers' Bank v. Penna. Bank, 7 W. & S. 335, approved. Leucheim 
 Bros'. Appeal,, N. S. xi. 127. 
 
 Martin v. Hisihway Commissioners, 4 Mich. 557, approved Township of 
 Leoni V. Taylor, N. S. x. 537. 
 
 Massev v. Seadcn, LawKep. 4 Ex. 13, cited. Wharton\. Kirhwood, N. S. xiii. 
 592. 
 
 McBride v. Ins. Co., 30 Wis. 562, approved. Smith v. Amazon Ins. Co., N. 
 S. xiii. 651. 
 
 McGear o. Woodruff, 4 Vroom 213, approved. Boner. Treasurer of Pln^n- 
 Jield, N. S. xiv. 251. 
 
 McGear v. Woodruff, 22 Wis. 625, approved. Cremer v. Town of Portland, 
 N. S. xi. 325. 
 
 McGear v. Woodruff, 29 Wis. 144, approved. Id. 
 
 Meyers v. I/add, 26 111. 415, approved. Button v. Arnett, N. S. ix. 775. 
 
 Monroe i'. Bordin, 65 E. C. L. Rep. 862, approved. South Boston Iron Co. f. 
 Brown, N. S. xiv. 454. 
 
 Noonan !>. Lee, 2 Black 489, recognised. Orchard v. Hughes, N. S. iii. 694. 
 
 Otis V. Jones, 21 Wend. .394, approved. Dalton v. Landhan. N. S. xiii. 391. 
 
 Parker «. Kane, 4 Wise 1, approved. Howell v. Bowell, N. S. iii. 378. 
 
 People V. Mahany, 13 Mich. 487, approved. Park Corns, v. Common Council, 
 N. S. xiii. 524. 
 
 People V. Saunders, 25 Mich. 119, cited. Beehe v. Knapp, N. S. xiii. 458. 
 
 Peoples V. Knowles, 15 Mich. 408, approved. Fisher v. People, N. S- x. 480. 
 
 Roberts v. Fisher, 43 N. Y. 159, approved. Rohirtsv. Fifher, N. S. xiii. 262. 
 
 Seitz 17. Miles, 16 Mich. 456, approved. Hoffman v. Barringlon, N. S. xi. 
 532. 
 
 State V. Bovle, 10 Kansas, referred to and followed. The State v. Crawford, 
 N. S. xiv. 21". 
 J State V. Great Works Co., 20 Maine 41, approved. Indiana v. Railroad Co., 
 N. S. iv. 583. 
 
 State Mutual Ins. Co. v. Roberts, 7 Casey 440: 7 Am. Law Reg. 229 ; in 
 Belson V. Manufacturing Ins. Co., Allegheny Bond case, in Maddox v. Graham, 
 O. S. vii. 747. 
 
 Teaff V. Hewitt, 1 Ohio N. S. 511, approved. Porter v. Crbmwell, N. S. ix. 
 CO. 
 
 Toms V. Wilson, 7 L. T. Rep. N. S. 421, cited. Wharton v. Kirkwood, N. S. 
 xiii. 592. 
 
 Tracv v. Strong, 2 Conn. 659, approved and followed. Studwell v. Cooke, N. 
 S. xii. 223. 
 
 Trndo v. Anderson, 10 Mich. 357, approved. Ballou v. O'Brien, N. S. x. 
 669. 
 
 Wilcox V. Wain, 10 S. & R. 380, approved. Loucheim Bros' . Appeal, N. S. xi. 
 127. 
 
 Wilson V. Rosseau, 4 Howard 688. Bloomer v. Qw.wan, 0. S. i. 471. 
 
 CASES COMMENTED ON. 
 
 Brown v. Maryland, 12 Wheaton 419, commented on. Wood)-uffy. Parham, 
 N. S. ix. 25. 
 
 Cassidy v. McKenzie, in Stecre v. E'Us, perPirtle, Ch., 0. S. ii. 631. 
 
 Condit V. Baldwin, 21 N. Y. Rep. 224, observed upon. Porter v. Mount, N. 
 S. V. 292. 
 
 Dickenson v. Wason, 54 Barb. 230, commented on. Dod v. Fourth National 
 Bank, N. S. x. 600. 
 
 Doddinpton r. Hallett ; Pragoff v. Heslopp ; Ex parte Young. Folleii v. 
 Jeioett, 0. S. i. 600. 
 
 Eshhach v. Eshbach, 11 Harris 343, commented on. Angier v. Angier, N. &. 
 ix. 335. 
 
 Ford V. Cobb, 20 N. Y. 344, commented on. Porter v. Cromwell, N. S. ix. 60. 
 
CASES COMMENTED ON— CASES DOUBTED, &c. 157 
 
 Foster's Appeal. 0. S, vi. 752. 
 
 Frear's Case, Bankrupt Keg. 201, commented on. Re Abbe, N. S. vii. 824, 
 
 Freeman o. Howe, 24 How. 450, what it decided. Buck v. Cotbath, N. S. v. 
 566. 
 
 Graham i>. Stone, 6 How. Pr. Cases 15. FoHetl v Jewett, 0. S. i. 600. 
 
 Grand Gulf Bank f. State. 0. S. vi. 690. 
 
 Hadlev v. Baxendale, 9 Exch. 341, commented on. Wilson v. Newport Dock 
 Co., N^ S. V. 748. 
 
 Hartung's Case, 22 N. Y. 95, commented on. Kmhler v. People, N. S. ii. 4.3. 
 
 Hazelhaker w. Ueeves, 2 Jones 264, and Davis v. Steiner, 2 Harris 275. Burr 
 v. Burr, (). S. iv. 558. 
 
 Kuyner v. Shower, 1 Harris 446, commented on. Schafer y. F, ^ M. Bank, 
 N. S. viii. 684. 
 
 Leese v. Clarke, 29 Cal. 672,i commented on. Maxjne v. Jones, N. S. viii. 
 120. 
 
 Little's Case, Bankrupt Recr. 74, commented on. Re Abbe, N. S. vii. 824. 
 
 Little Miami Railroad v. Stevens. 0. S. vi. 552. 
 
 Millar V. Taylor, in Stowe v. Thomas, per Grier, J., 0. S. ii. 210. 
 
 Millinijer !>. Sorg, 5 1*. F. Smith 215, commented on. Lawrence v. Lulir, N. 
 S. X. 5.35. 
 
 Murdock v. Gilford, 18 N. Y. 2S, commented on. Porter v. Cromwell, N.. S. 
 ix. 60. 
 
 Planter's Bank v. Sharp. 0. S. vi. 690. 
 
 Plymouth o. Painter, 17 Conn. 589, commented on. The State v. Carroll, N. 
 S. xii. 165. 
 
 Po?t V. Avery, 5 W. & S. 509, commented on, Forrester v. Torrence, N. S. 
 X. -352. 
 
 Pratt V. Reid, 19 How. 359, and Jeffer.son v. Beers, 20 How. 393, commented 
 on. Col/ei V. Th'. Commonwealth, 0. S. vii. 5. 
 
 Beeves v. Scully, Walker's Ch. 248, and Fisher v. Otis, 3 Chandler 86. Bax- 
 ter V. RoelfMn, 0. S. viii. 477. 
 
 Ryan v. Pennsylvania Railroad Co., 11 Harris 384, remarked on. O'Donnell 
 v. Allegheny Railroad, N. S. viii. 757. 
 
 Taylor i>. McCune, 1 Jones 460, remarked on. Schafer v. F. ^ M. Bank, N. 
 S. vii"i. 684. 
 
 The Genesee Chief, 12 How. 443. The People v. Tyler, 0. S. viii. 403. 
 
 Underwood v. Parks, 2 Stra. 1200. FoUett v. Jewetl, O. S. i. 605, 606. . 
 
 United States v. West's Heirs, reviewed. United States v. Galbraith, N. S. iii. 
 51. 
 
 Wennall v. Adney, 3 Bos. & Pull. 252. Note to, commented on. Goulding v. 
 Davidson, N S. iii. 34. 
 
 Weston V. Charleston, 2 Peters 449, commented on and followed. People v. 
 Commissioners of Taxes, N. S. ii. 614. 
 
 ' V. , 3 C. E. Green 454, commented on. Cowart v. Perrine, N. 
 
 S. X. 202. 
 
 CASES DOUBTED AND DISSENTED FROM. 
 
 Baxter v. Duren, 29 Maine 440. Rieman v. Fisher, 0. S. iv. 437. 
 
 Bush «. Steinman, 1 Bos. & Pull. 404, rejected as authority. Painter v. 
 Pittsburg, N. S. iii. 350. 
 
 Carryl v. Taylor, in Devinney v. The Memphis. Per Pirtle, Ch., 0. S. ii. 
 666. 
 
 Cox ;'. Taylor, 10 B. Monroe 17, disapproved. Gorton v. Brown, N. S. ii. 540. 
 
 Doujrias V. Wickwire, 19 Conn. 492, disapproved. The Stale v. Carrol, N. S.. 
 xii. 165. 
 
 Flowers v. Todd, 6 Hill 340, questioned. BurrVl v. Watertown Bank, N. S. 
 viii. 183. 
 
 Fuller V. Benjamin, 23 Maine 255, questioned. Lawrence v. Rokes, N. S. vi. 
 249. 
 
 Gill V. Cubitt, 3 B. & C. 466, disapproved. Phelan v. Moss, N. S. xi. 124. 
 
 Harris v. Tippitt, 2 Campb. 637 ; People v. Genninp, 11 Wend. 0. S. i. 92, 93. 
 
 Jones V. Vansant, in Van Metrer v. Mitchell, 0. S. ii. 279. 
 
 Owens V. Missionary Society, 14 N. Y. 380, dissented from. Tlcknor's Estate, 
 N. S. iv. 269. 
 
158 CASES DOUBTED, &c.— CASES OVERRULED. 
 
 Pannand v. Jones, 1 Cal. 448, in Thompson v. Cragg, O. S. viii. 496. 
 
 reel V. Merchants' Insurance Co., 3 Mason 27. Marine Insurance Co. y. Good- 
 Vian, 0. S. iv. 481. 
 
 Keynolds v. Ocean Insurance Co., 22 Pick. 171. Id. 0. S. iv. 495. 
 
 Scribner v. Fisliev, 2 Gray 43, dissented from. Baldwin v. Hale, N. S. iii. 462. 
 
 The Sea Bird v. Bechler, iu Devinney v. The Memphis. Per Pirtle, Ch., O. 
 S. ii. 666. 
 
 Tillow V. Kingston Insurance Co., 1 Seld. 405. See Grosvenor v. Atlantic 
 Mutual Insurance Co., 0. S. vii. 125. 
 
 Traders' Insurance Co. v. Robert, 9 Wend. 404 ; 17 Id. 631. 0. S. vii. 121. 
 
 Wheeler v. Williamson, 4 Am. Law Keg. 5. See Ex parte Everts, 0. S. vii. 
 89. 
 
 CASES EXPLAINED AND DISTINGUISHED. 
 
 Best V. Allen, 30 111. 30, explained. Brown v. Coon, N. S. iv. 507. 
 
 B V. I , 22 Wis. 372, distinguished. Scheer v. Keown, N. S. xiii. 
 
 590. 
 
 Commonwealth k. Shelby, 13 S. & R. 354, explained. Okesfon's Appeal, N. 
 S. viii. 703. 
 
 English V. Harvey, 2 Ilawle 309, explained. Okecon's Appeal; N. S. viii. 
 703. 
 
 Erie Railroad v. Skinner. 0. S. vi. 342. 
 
 Ernst V Hudson River Railroad, 24 Howard Pr. R. 97, erroneomly reported. 
 Ernst V. Railroad Co. , N. S. vi. 254. 
 
 Franklin Eire Ins, Co. i.. Updegraff, 7 Wright 350, distinguished. Bcatty v. 
 Lijcoming Ins. Co., N. S. x. 745. 
 
 Gilsoii V. Bingham, 43 Vt. 410, explained. Davenport v. Hubbard, N. S. xiii. 
 777. 
 
 Harden v. Wolf, 2 Ind. 31, explained. Huff v. Cole, N. S. xiv. 62. 
 
 Hilliard v. Richardson, 3 Gray 349, distinguished in Chicago v. Bobbins, N. 
 S. ii. 529. 
 
 Inland Ins. Co. v. Stauffer, 9 Casey 397, distinguished. Beatty v. Lycoming 
 Ins. Co., N. S. X. 745. 
 
 MoDermaid v. Russell, 41 Ills. 489, explained. Dyer v. Last, N. S. ix. 714. 
 
 Morley v. Attenborou<rh, 3 Exch. 500 ; in Hoe v. l^anborn, 0. S. viii. 740. 
 
 Patterson v. Knight, 29 111. 514, explained. Brown v. Coon, N. S. iv. 507. 
 
 Pennsylvania Railroad Co. v. McCloskey's Ad., 11 Harris 526 ; in Pennsyl- 
 vania Railroad Co. v. Z'be, 0. S. viii. 27. 
 
 Penniiylvania v. The Wheeling Bridge Co. O. S. vi. 6. 
 
 Reese v. Montgomery Co. Bank, 7 Casey 78, explained, Curry v. Scott, N. 
 
 5. vii. 31.3. 
 
 Texas i'. Hardenberg, 10 Wall. 68, considered and explained. National Bank 
 of Washington v. Texas, N. S. xiv. 193. 
 
 Texas v. Huntingdon, 16 Wall. 402, considered and explained. National 
 Bank of Washington v. Texas, N. S. xiv. 193. 
 
 Texas v. White & Chiles, 7 Wall. 718, considered and explained. National 
 Bank of Washington v. Texas, N. S. xiv, 193. 
 
 The Baltimore, 8 Wall. 373, distinguished. The Falcon, N. S. xiii. 646. 
 
 Thornton v. Smith, 8 Wall. 1, explained. The Confederate Note Case, N. S. 
 xiii. 707. 
 
 United States v. Hayward, 2 Gall. 486, explained. United States v. Stark, 
 N. S. xi. 37. 
 
 United States v. Rice, 4 Wheat. 247, explained. United States v. Stark, N> 
 
 6. xi. 37. 
 
 Waitt V. Green, 36 N. Y. 556, distinguished. Bnrt v. Dewey, N. S. ix. 62. 
 
 CASES OVERRULED. 
 
 Atwater v. Woodbridge, 6 Conn. 223, overruled. Lord v. Litchfield, N. S. x. 
 493. 
 
 Davison u. Manlove, 2 Cold. 347, overruled. Smith v. Brazelton, N. S. ix. 
 762. 
 
 Ex parte Cindcc, 48 Ala. 386, overruled. Ex pr.rte Harris, N. S. xiv. 646. 
 
 Eoss V. Edwards, 47 Maine 145, overruled. HackM v. Lane, N. S. xiii. 123. 
 
 Gilbert t. Henck, 6 Casey 205, overruled. AJiton v. Bayurd, N. S. xii. 792. 
 
CASES OVERRULED— CATTLE. 159 
 
 Hanks !'. Drake, 49 Barb. 1 86, overruled. Markham v. Jaudon, N. S. ix. 286. 
 
 Joy V. The State, 1.3 Ind. 139, overruled, itute v. Walker, i!tute v, NcImh, 
 N. S vi. 716 
 
 Landon v. Litchfield, 11 Conn. 251, overruled. Lord v. Litclifield, N. S. x. 
 493. 
 
 Miller v. The State, 8 Ind. 326, overruled. State v. Wa'ker, N. S. vi. 716. 
 
 Morgan v. The State, 13 Ind. 21.'j, overruled. Stale v. Walker, N. S. vi. 716. 
 
 N. J. Railroad Co. v. Kennard, 9 Harris 203, overruled. P. Sj- C. Railroad Co. 
 V. McCvnj, N. S. vii. 277. 
 
 Osborne v. Humphrey, 7 Conn. 335, overruled. Lord v. Litchfield, N. S. .x. 
 493. 
 
 Fierce i-. Goldsbury, 31 Ind. 52, overruled. Abel v. AU-xander, N. S. xiv. 63. 
 
 Rex V. Russell, 6 B. & C, 566, overruled. Aug. Genl. v. Terry, N. S. xiii. 
 591. 
 
 Hoosevelt v. Meyer, 1 Wall. 512, overruled. Trebilcock v. Wihnn, N. S. xi. 151 . 
 
 Scammon c. Chicago, 25 111, 424, partly overruled in Chicago v. Robhms, N. 
 S. ii. 529. 
 
 State ex rel. c. Kly, 43 Ala. 568, overruled. Ex parte Harris, N. S. xiv. 646. 
 
 State V. Joyce, 19 Wis. 90, overruled, Hanson v. Tai/'or, N. S. ix. 195. 
 
 Sterling r. Jaudon, 48 Barb. 459, overruled, Markhunt v. Jaudon, N. S. ix. 
 286. 
 
 Sturms, Ex parte, 25 111. 390, overruled in part in Gibon v. Roll, N. S. ii. 
 118. 
 
 Summer's Appeal, 4 Harris 169. Hutchinron v. McChire, 0. S. i. 170. 
 
 Taylor t:. Rountree, 3 Wis., overruled. Wals v. Grosvenor, N. S. xii. 471. 
 
 Tcxira i\ Evans, not law in Virginia. Preston v. Hull, N. S. xii. 699. 
 
 Weidman v. Marsh, 4 Harris 504. Shrivn- v. Myer, 0. S. i. 227. 
 
 Wheaton v. Hibbard, 20 Johns. 290. Dictum of Spencer, C. J., overruled. 
 Porter v. Mount, N. S. iii. 493. 
 
 Wood v. Railway Co., 27 Wis. 541, overruled. Conkey v. M. ^ St. P. Rail- 
 road Co., N. S. xii. 365. 
 
 Wood v. Stone, 2 Cold. 370, overruled. SinHh v. Braze'ton, N. S. ix. 762. 
 
 Wright r. Overall, 2 Cold. 3.36, overruled. Smilh v. Braz linn, N. S. ix. 762. 
 
 Yost V. Stout, 4 Cold. 205, overruled. Smith v. Brazdton, N. S. ix. 762. 
 
 CASES QUALIFIED AND CRITICISED, 
 
 Beltzhoover v. Blackstock, 3 \Vatts 20, criticised. Phelan v. Moss, N. S. xi. 
 124. 
 
 Canal Co. c Sansom, 1 Binn. 70, criticised. Mining Co. v. Lery, N. S. vii. 
 312. 
 
 Devoe v. Penrose Ferry Bridge Co. 0. S. vi. 6. 
 
 Flureau <,'. Thornhill, 2 Wm. Bl. 1077, distinguished. Locke v. Furze, N. S. 
 vi. 45. 
 
 Gould V. Banks, 8 Wend. 562, limited in Friass v. Rider, N. S. ii. 317. 
 
 Hawley v. James, 5 Paige 442, distinguished. Crons v. De Valle, N. S. iii. 
 630. 
 
 Jackson x\ The Northern Central Railroad Co., in the Circuit Court of the 
 United States for the District of Maryland, held not to he a correct exposition 
 of the Pennsylvania statutes. Mallby v. Railroad Co., N. S. v. 479. 
 
 Lorillard r. Coster, 5 Paige 172, distinguished. Cross v. Ve Valle, N. S. iii. 
 630. 
 
 Palmer v. Ridge Mining Co., 10 Casey 288, criticised. Mining Co. v. I^evij, 
 N. S. vii. 312. 
 
 Sheehy v. Manderville, 6 Cranch 254, criticised. Mason v. Eldred, N. S. vii. 
 402. 
 
 Rex V. Horwell, 6 C. & P. 148, distinguished. People v. Clements, N. S. iii. 
 570. 
 
 CATTLE. 
 
 1. Rule of the common law relative to cattle not applicable to Ohio. A'er- 
 whaker v. C, C. ^ C. Railroad, O. S. iii. 341. 
 
 2. Railroad companv not bound to fence their tracks against. Hurd v. Rut- 
 land Railroad, 0. S ii."232. 
 
 3. The common law of England relative to fencing against cattle is applicable 
 to Pennsylvania. N. Y. ^ E. Rnilroad v. Sk.nn r, 0. S. i. 97 ; and sec Nuilh 
 Pinna. Railroad v. Rahman, N. S. v. 49. 
 
160 CATTLE. 
 
 4. Though in Pennsylvtiiiia a railroad is not bound to fence its tracks to keep 
 off cattle, vet it takes the risk of injury to passengers from that cause. Bailroad 
 V. Chemwi'lh, N. S. vi. 93. 
 
 5. Where a railroad delays for a week to repair a fence burned down, it will 
 be liable for injury to cattle straying on the track. C, C.Sr C. Railroad v. Brawn, 
 N. S. xiv. 61. 
 
 6. Railroad not liable for injury to cattle strayinjj on the track where the com- 
 pany was not bound to fence. P.', C. ^ St. L. Railroad v. Bowi/br, N. S. xiv. 61. 
 
 7. Cattle dfiintr damage on the highway not distrainable at common law. 
 Taylor v. Welly, N. S. xiv. 254. 
 
 8. No damages can be received for cattle killed on railroad in a city where the 
 track is not fenced. ./., M. Sr L Railroad v. Underhill, N. S. xiv. ,589. 
 
 9. Where there is no pound, a person may detain cattle taken damage feasant 
 on his premises." Mosher v. Jiwetl, N. S. xiv. 397. 
 
 10. Has a lien for expenses on them. Id. 
 
 1 1. Ru^e of damages against can-iers for injuries sustained by cattle in trans- 
 porting. Blach I . Camden ^ A. Railroad §r Travs. Co., K. S. v. 566. 
 
 12. As to impounding for damage feasant. Sec Goodwyn v. Chuveley, O. S. vii. 
 684. 
 
 13. Running at large — law of Ohio as to. Kerwhaher v. Railroad Co., 0. S. 
 jii. .341. 
 
 14. Landowner under common law obliged to keep his cattle from running at 
 large in Vermont. IJurd v. Rutland Railroad, 0. S. ii. 232. 
 
 15. Running at large — no duty to fence against. Railroad Co. v. Skinner, 
 0. S. i. 97. 
 
 16. Bringing an animal with an infectious disease among other animals. See 
 Nuisance, 
 
 17. When owner liable for trespass of his cattle. Rossell v. Cottom, 0. S. vii. 
 405. 
 
 18. Cattle trespassing on railroad track— when damages may be recovered for 
 injury to them. See Slucke v. Railroad Co., O. S. vii. 732. 
 
 19! The common law of England is the law of Mississippi only so far as it is 
 adapted to her institutions and the circumstances of her people, and is not repealed 
 by statute or varied by usages which by long custom have superseded it. The 
 Vickshurg ^ Jaekson Railroad Co. v. Putton, 0. S. vi. 457. 
 
 20. By the common law of England, the owner of cattle, horses, &c., is bound 
 to keep them within a sufficient enclosure, and if he permit them to escape and 
 run at large, and wander upon the premises of another, whether enclosed or not, 
 he is liable for the trespass, and the cattle so trespassing may be distrained 
 damage feasant. But this rule of the common law is not adapted to the circum- 
 stances and condition of the people of this state (Mississippi) where the popula- 
 tion is not dense, and there are large tracts of uncultivated and unenclosed land 
 fit for the pasturage of cattle ; and moreover, the people of the state have, from 
 its earliest settlement, permitted their domestic animals to run at large in the 
 "range" and depasture on unenclosed lands, and hence the rule is not in force 
 here. Id. 
 
 21. In this state the owner of cattle, horses, &c., which are not of a dangerous 
 character may lawfully permit them to range at large on unenclosed commons ; 
 and if, in so doing, they wander upon the premises of another not enclosed by a 
 lawful fence, he is not liable for the trespass, and they cannot be distrained 
 damage feasant. Id. 
 
 22. The owner of unenclosed land may prosecute his lawful business thereon, 
 but in so doing he must exercise reasonable care and diligence to avoid injuring 
 the cattle of others, which may have wandered on the premises. Id. 
 
 23. A railroad company has the exclusive right to the use and possession and 
 enjoyment of the land upon which their track is located, and they may run their 
 engines and ears on the same at whatever speed they see proper, not inconsistent 
 with the safety of the persons and property committed to their charge ; but this 
 right over the land is no higher nor more extensive than that of its original 
 owner ; and hence if their track ho unenclosed, they must run their engines and 
 cars with reasonable care and prudence, so as to avoid injury to cattle which may 
 he depasturing on the track ; and if they fail to do so they will be liable for tho 
 injury done. Id. 
 
 24. A railroad company Is bound by law to keep the road and machinery iu 
 
CATTLE— CERTIORARI. 161 
 
 good order, and to have a sufficient number of faithful and trustworthy emp)oyee3 
 to mauage and control the running of their engines and cars ; and if by their 
 failure in any of these respects the cattle of another depasturing on their unen- 
 closed track he injured or destroyed, they will be responsible to the owner iu 
 damages. Vicksburg Sf Jackson Railroad Co. v. Palton, 0. S. vi. 457. 
 
 CAVEAT EMPTOR. 
 
 1. The common law of caveat emptor stated and discussed, and its exceptions 
 given. Hoe v. Sanborn, 0. S. viii. 740. 
 
 2. The rules of law as to this maxim have reference particularly to the condi- 
 tion of personal property sold. Clark v. Rankin, N. S. vi. 368. 
 
 3. If the vendee was not deceived by the representations of the vendor, though 
 the representations were false, there is no cause of action. Id. 
 
 4. In sale of horse. Eagon v. Call, 0. S. viii. 488. 
 
 5. Effect of concealment of latent defect in sale of horse. See Cassel v. Herron, 
 0. S. i. 681. 
 
 CERTIFICATE. 
 
 1. By a clerk to a record whereunto he has set " his hand and the seal of his 
 office as such clerk is valid." Larke v. Dessigh, 0. S. ii. 510. 
 
 2. Certificate for return of fugitive slave under Act of April 20th 1818. See 
 United States v. Hann, O. S. viii. 663. 
 
 CERTIFICATE OF DEPOSIT. 
 
 1. Certificate of deposit payable on presentation is negotiable. Bank v. Bank, 
 N. S. vii. 758. 
 
 2. Holder cannot sue until demand made. Id. 
 
 CERTIORARI. 
 
 1. A common law certiorari, sued out after the time for a statutory appeal 
 •which would have given the same remedy, will be quashed. Farrell v. Taylor, 
 N. S. iii. 249. 
 
 2. The allowance of the writ in such case is not binding on the court. Id. 
 
 3. Review of decision of court below on questions of fact. Brown v. Ramsay, 
 N. S. ii. 56. 
 
 4. Only questions of law, not of fact, are open on certiorari. Hyde v. Nel- 
 son, N. S. ii. 572. 
 
 5. To justice — requisites of the return under the New York Code. Orcutt v. 
 Cahill et al., N. S. ii. 120. 
 
 6. Lies only to review proceedings of a judicial character. People v. Super- 
 visors, N. S. iv. 704. 
 
 7. Proceedings of a board of supervisors to raise money for bounties are not 
 judicial. Id. 
 
 8. To review assessments in New York. People ex rel. v. Commonwealth, N. 
 S. V. 123. 
 
 9. Defendant in criminal case cannot have certiorari without special allowance, 
 but the Commonwealth may. Commonwealth v. Capp, N. S. iv. 637. 
 
 10. The writ of certiorari is allowed and the remedy granted, solely in the 
 discretion of the court, and it may be dismissed without passing upon the merits 
 of the questions intended to be raised. The People ex rel. Curtis v. Common 
 Council of Utica, N. S. xii. 657. 
 
 1 1. An adjudication in order to be reviewed by it must be such a one as is final 
 in its nature. Id. 
 
 12. It is too late to apply for the writ after the lapse of two years from the 
 act sought to be reviewed. Id. 
 
 13. Will only lie to review the judicial proceedings of a county court. Matter 
 of SaJ-ine Co. Subscription, N. S. ix. 318. 
 
 14. The office of a certiorari is not however to review questions of fact, but 
 questions of law ; and, in examining into the evidence, the appellate court does 
 so, not to determine whether the probabilities preponderate one way or the other, 
 but simply to determine whether the evidence is such that it will justify the find- 
 ing as a legitimate inference from the facts proved, whether that inference would 
 or would not have been drawn by tlie appellate tribunal. Jackson v. People, N. 
 S. i. 185. 
 
 15. But the appellate court will review the rulings of law upon the admission 
 11 
 
162 CEETIORAEI— CHAMPEETY. 
 
 or exclusion of evidence, or other rulings in the proceedings having a bearing 
 upon the result. Jackson v. People, N. S. i. 185. 
 
 IC. A certiorari must be dii-ected to all persons \vhose return is necessary to 
 enable the court to determine the regularity of the proceedings. The People ex 
 rel. Davis v. Hill, N. S. xiil. 52. 
 
 17. If writ is directed to all the officers or bodies whose action completed the 
 act complained of, jt is sufficient. Id. 
 
 18. When the acts of different officers do not form part of one official act 
 separate writs must issue. Id. 
 
 19. When ministerial acts are complained of the writ should be directed to the 
 officer acting. Id. 
 
 20. A ministerial act cannot be complained of unless connected with a judicial 
 act. Jd. 
 
 21. If the action of ministerial officer is necessary to give relief, the court 
 should compel return. Id. 
 
 22. A party is entitled to a common law certiorari to review the determination 
 of a judicial officer or body when there is no other remedy. Tlie People ex rd. 
 Akin V. Morgan, N. S. xiii. 122. 
 
 23. He must have an interest in the case to entitle him to the writ. Id. 
 
 24. On certiorari the court of review is governed by the return alone and will 
 not consider papers annexed thereto. Id. 
 
 25. Though a tax-payer cannot maintain an action to restrain the collection 
 of a tax, he is entitled to a certiorari to review the proceedings of the assessors. 
 Id. 128. 
 
 26. Where the assessors have to determine a fact their decision becomes judi- 
 cial and reviewable by certiorari. Id. 
 
 27. Circuit Court of United States acting as on appellate court has power to 
 certiorari records of same court in its original jurisdiction. Ex parte Yerger, N. 
 S. ix. 57. 
 
 28. On a common law certiorari the Supreme Court of New York is not re- 
 stricted to the question of jurisdiction of the lower court. People v. Commissioners, 
 N. S. ix. 121. 
 
 29. The Supreme Court of the United States has no power to review by cer- 
 tiorari the proceedings of a military commission. Ex parte Valtandigham, N. S. 
 iv. 55. 
 
 30. Certiorari in landlord and tenant proceedings. Husband alone should be 
 relator. People v. McCaffrey, N. S. iv. 380. 
 
 CESTUI QUE TRUST. 
 
 1. Where one W., the defendant, and one M., the complainant, entered into 
 a contract and agreement whereby the said W. became the agent and trustee of 
 the said M., to sell his interest in the steamboat Jewess, under certain terms and 
 upon certain stipulations ; and where, in direct violation of the terms of the con- 
 tract, co-operating and conspiring with one H., who also owned a moiety of the 
 steamboat, the said W. sold to R. , his partner, the interest of his cestui que trust 
 and advanced part of the purchase-money, the sale being made at a lower price 
 than had been previously offered, and within thirty days of the sale took by the 
 custom house documents title and possession to himself of a certain interest in 
 the said steamboat : the sale was held void, as being in violation of the general 
 and universally established doctrine that trustees are incapable of purchasing 
 trust property themselves. Montgomery/ v. Whittington, Hooper, liicketts and Mur- 
 phy, 0. S. V. 344. 
 
 2. The general doctrine of the relations between cestui que trust and trustees 
 discussed. Id. 
 
 3. The cestui que trust is entitled to the full value of the property at the time 
 of the sale, as damages, if it is lost or not in a condition to be returned. Id. 
 
 CHAMPERTY. 
 
 1. Assignment of a bid at a chancery sale, after the sale is set aside and a re- 
 sale made, is void for champerty. Niwland v. Gaines, N. S. x. 194. 
 
 2. Purchase of legacy for less than its value from one too poor to sue, is not. 
 Tyson v. Jackson, N. S. iii. 441. 
 
 3. Only applied to the purchase of controverted titles, productive of naked 
 litigation, &c. Calcote v. Stanton, 0. S. iii. 49. 
 
 4. Whctlier the law of maintenance and champerty is recognised as a part of 
 
CHAMPERTY— CHARITABLE BEQUEST. 1G3 
 
 the common law of Connecticut : Qiiere. The court inclines to think it is not. 
 £tichardson v. AWanrf, N. S xiv. "8. 
 
 5. It is not a part of the common law of the state of New York. Id. 
 
 6. A purchase of land hy a guardian ad litem of an infant delendant, pending 
 a suit in chancery, involvins the title to the land, is champertous and void. 
 Gauyh r. Greenlnws, 0. S. vii. 591. 
 
 7. The withdrawal of a peneral appearance entered hy an attorney, will not 
 prejudice any rights acquired by the plaintiff. Creighton v. A'err, N. S. xiv. 
 115. 
 
 8. After verdict and before judfiment plaintiff in ejectment assigned the sub- 
 ject-matter of the suit to his attorney in the suit, as a security for money ad- 
 vanced by the attorney for carrying on the suit, and other purposes, and for 
 the amount due him for his professional services. Assignment not void as 
 against public policy, or by reason of any of the statutes against champerty and 
 maintenance, being onlv a security and not an absolute purchase. Anderson v. 
 Radcliffe, 0. S. vii. 508. 
 
 CHAKCET4Y. 
 
 1. Powers to administer a fund for charitable uses. See Fountain v. Ravenel, 
 O. S. iii. 264, 330. 
 
 2. A decree in chancery obtained by fraud is void, and a court of chancery 
 upon original bill will set it aside and restore the party defrauded to his former 
 situation and rights. Guugh v. Greenlaws, 0. S. vii. 591. 
 
 3. Equity favors innocent purchasers without notice who have paid a full con- 
 sideration and taken conveyance for land ; but where a purchaser has actual or 
 constructive notice of an outstanding title, he will not be protected against it. Id. 
 
 4. Chancery jurisdiction — subject discussed. 0. S. i. 449. 
 
 5. The duties and powers which in England belong to the prerogative of the 
 Crown, in reference to charities, and which are vested in the Lord Chancehor by 
 the king's warrant under his sign manual, do not exist in our chancery court. 
 Dickson V. Montgomp-ri), 0. S. i. 348, 377. 
 
 6. Although at common law an assignment will not convey a chattel unless it 
 is in esse, at the time of the transfer, it is otherwise in equity. Ludlow v. Hurd, 
 O. S. vi. 493. 
 
 CHARACTER FOR SKILL, &c., cannot he established by proof of special acts, 
 but by evidence of general reputation. Frazier v. Penna. liailroad, N. S. x. 60. 
 
 CHARACTER OF VESSEL. 
 
 The foreign or domestic character of a vessel must be determined by the resi- 
 dence of her owners. Sitl v. Golden Gate, 0. S. vi. 273. 
 
 CHARGE OF JUDGE. 
 
 1. When the court is asked to, and does charge the jury as to the conclusive 
 nature of a written contract between the parties, if they shall find such contract 
 established by the evidence, and there is no proof in the case showing, or tend- 
 ing to show, a written contract of the kind mentioned in the charge, such charge 
 is improper, as tending to mislead the jury. American Transportation Co. v. 
 Moore, 0. S. vii. 353. 
 
 2. The court, in its charge to the jury, is not bound to state the law arising 
 upon abstract questions. Cowles, Ex. of Cowles, v. Bacon, 0. S. i. 566. 
 
 3. Where the court, in an action for an injury sustained by the plaintiff in ii 
 stage coach, instructed the jury that if the defendant owned the horses, in the 
 absence of all evidence to the contrary, it was reasonable to presume that the 
 driver having the control of them was placed in that situation by the defendant's 
 consent, and that they were employed in his business ; but that the contrary 
 might be shown ; submitting the question to them as one of fact for them to de- 
 cide. It was held, that the charge was unexceptionable. Ilaight and wife v. 
 Turner, O. S. i. 566. 
 
 4. It is necessary that each point submitted to the court, relevant and material 
 to the issue, be substantially answered in the relation in which it was put. It is 
 not quite enough that an answer may be deduced from observations in other con- 
 nections and other relations to other facts. Pennsylvania Railroad v. Ztbe and 
 wife, O. S. viii. 27. 
 
 CHARITABLE SEQUEST. 
 
 1. Words in a will expressive of desire, are not technical, and cannot convert 
 a bequest into a trust. Mikonkeifs Appeal, 0. S. i. 342. 
 
164 CHARITABLE BEQUEST— CHARITABLE USES. 
 
 2. A sum bequeathed "to support indigent pious young men" void for uncer- 
 tainty. In re White, 0. S. i. 289. 
 
 3. Charitable bequests made in the -will of 1871 were not avoided by the Act 
 of April 26th 1855. Bamillon's Estate, N. S. xiii. 720, 
 
 4. A bequest for the founding, establishing and upholding an animal sanatory 
 institution within a mile of either Westminster, Soutliwark, or Dublin, for in- 
 ■vestigating, studying, and without charge beyond immediate expenses, endeav- 
 oring to cure maladies, distempers, and injuries of any quadrupeds or birds useful 
 to man may be found subject to. Held, to be a good charitable bequest within 
 the meaning of the statute of Elizabeth. Tke University of London v. Yarrow, 
 O. S. vi. 169. 
 
 5. Semhle, that had the bequest been bad, as implying the purchase of lard 
 near Westminster or Southwark, and therefore violating the Mortmain Act, the 
 option for the trustees to estahliih the institution in Ireland, where the statute of 
 Mortmain does not apply, would have prevented the bequest from being invalid. 
 Per the Lord Chancellor. Id. 
 
 6. A gift to charity which is void at law for want of an ascertained beneficfary, 
 ■will be upheld by the courts of this state, if the thing given is certain, if there 
 is a competent trustee to take the fund and administer it as directed, and if the 
 charity itself be precise and definite. Beckman v. lionsor^ N. S. i. 179. 
 
 7. in other respects charitable trusts are subject to the rules which appertain 
 to trusts in general. The trust must be capable of execution by a judicial decree 
 in affirmance of the gift as the donor made it. The cy pres power, as exercised 
 in England in cases of charity, has no existence in the jurisprudence of this 
 st;ate. Id. 
 
 8. A charitable gift of a sum which is left uncertain or which is left to the 
 discretion of executors who have renounced the ti-ust is void, and the next of kin 
 are entitled to the fund. It seems that such a defect is incurable, even liy ihe 
 cy pres power. Id. 
 
 9. What constitutes a charitable bequest. Fountain v. Ravenel, O. S. iii. 269- 
 .330. 
 
 CHARITABLE INSTITUTION. 
 
 Corporations in Louisiana may receive legacies for purposes not foreign to their 
 institution. McDonovgh v. Murdock, 0. S. ii. 400. 
 
 CHABITABLE USES. 
 
 1. The peculiar jurisdiction of the Court of Chancery in England, with regard 
 to charitable uses, where the devise, &c., is made to no certain or competent per- 
 son, or for an object so vague as not to admit on a liberal interpretation of being 
 definitely ascertained, is derived from the statute of 4.3 Elizabeth, and has never 
 been adopted in New York. Chittenden v. Chittenden, 0. S. i. .')38. 
 
 2. It seems that a trust for charitable purposes, if express, is within the revised 
 statutes of New York. Id. 
 
 3. Jurisdiction of courts of chancery to enforce charitable uses ; subject dis- 
 cussed. N. S. i. 129, 321, 449. 
 
 4. Testator, domiciled at Philadelphia, devised certain lands in Pennsylvania 
 to twelve trustees "in trust for the formation and support of the aged gentlemen 
 merchants, where they may enjoy the comforts of an asylum, not eleemosynary," 
 &c. Held, that the devise was good under the laws of Pennsylvania, and was 
 valid as a charitable use. Cresson v. Cresson, 0. S. vi. 42. 
 
 5. A charity includes not only gifts for the poor, but endowments for ad- 
 vancement of learning. Gerke v. Purcell, N. S. xiv. 753. 
 
 6. Schools established by private donations carried on for the public, are public 
 charities. Id. 
 
 7. Bequest of residue of estate, for advancement of the Christian religion, to 
 be applied in such manner as in judgment of executor would best promote that 
 object, will not be annulled as being too indefinite. Miller v. Teachout, N. S. 
 xiv. 193. 
 
 8. A testator devised as follows ; " Forasmuch as there will be a surplus in- 
 come of my estate beyond what will be necessary to pay my said wife's annuity 
 and the other annuities, I do therefore direct my said executors to invest the said 
 surplus income, and all accumulation of interest arising from that source yearly, 
 for and during all the term of the natural life of my said wife, * * * and from 
 and immediately after the decease of my said wife, then all the rest, residue and 
 
CHARITABLE USES. 165 
 
 remnindcr of all mv estate. * * * I authorize and empower my executors, or 
 the survivor of them, after the decease of my said wife, to dispose of the same 
 forthe use of such charitable institutions in Pennsylvania and South Carolina as 
 they or he may deem most beneficial to mankind, and so that part of the colored 
 population in each of the said states of Pennsylvania and South Carolina shall 
 partake of the benefit thereof." All the executors of the will died befoi-e the 
 testator's widow, and without having attempted to make an appointment under 
 the power conferred on them. lidd, that the disposition of the residuary estate 
 of the testator, subject to the power of appointment of the executors, failed, and 
 that the heirs and next of kin of the testator were entitled to it. Fontain v. 
 liavenel, 0. S. iii. 264, 330. 
 
 9. No court of chancery, either in South Carolina or Pennsylvania, can ad- 
 minister the fund in question, and it remains unaffected by the bequest, because 
 the means through which it was to have been given and applied have failed. LI. 
 
 10. In England, when the chancellor directs the application of property which 
 has been the subject of an ineifectual charitable disposition, in accordance with 
 the will of the sovereign, indicated under the sign-manual, or when that ofiicer 
 himself executes the cy pres power in regard to such property, he does not act in 
 the discharge of his ordinary chancery powers. Id. 
 
 11. No special trust is vested in the executors by reason of this power of ap- 
 pointment. It is separable and distinct from their ordinary duties and trust as 
 executors. If was to be exercised after the death of the wife of the testator ; but 
 the executors died before her decease, and consequently they had no power to 
 make the appointment. The conditions annexed by the testator to the power 
 rendered the appointment impossible. Id. 
 
 12. There must be some creative energy to give embodiment to an intention 
 which was never perfected. Nothing short of the prerogative power, it would 
 seem, can reach this case. There is not only uncertainty in the beneficiaries of 
 this charity, but there is a, more formidable objection, there is no expressed will 
 of the testator. He intended to speak through his executors or the survivor of 
 them, but by the acts of Providence this has become impossible. It is tlien as 
 though he had not spoken, and no power can now speak for him except that of 
 the parens patrtce. Id. 
 
 13. When there is nothing more than a power of appointment conferred by the 
 testator there is nothing on which a trust on general principles can be fastened . 
 The power given is a mere agency of the will, which may ormay not be exercised 
 at the discretion of the individual. And if there be no act on his part, the pro- 
 perty never having passed out of the testator, it necessarily remains as a part of 
 his estate. To meet such cases a prerogative power, such as that of the king in 
 England, must be invoked, which there, through the chancellor, can give effect to 
 the charity. Id. 
 
 14. Some late decisions in England involving charities, evince a disposition 
 rather to restrict than enlarge the powers exercised on this subject. An arbitrary 
 rule in regard to property, whether by a king or chancellor or both, leads to un- 
 certainty and injustice. Id. 
 
 15. The Statute of 1702 :vith regard to gifts for charitable uses provides that 
 all lands and es-tates that have been or shall be given by the General Assembly 
 or by any town or person for the maintenance of the ministry of the gospel or 
 for any other public and charitable use, shall for ever remain and be continued 
 to such use, and shall be exempt from the payment of taxes. Held, that this 
 statute did not constitute a contract between the state and either the donors or the 
 donees of such charitable gifts, that the property so given should for ever bo 
 exempt from taxation, and that therefore a statute making it taxable in certain 
 cases was not unconstitutional. Lord v. Litchfield, N. S. x. 493. 
 
 16. If to be regarded as such a contract, a lease of the property for 999 years 
 for a gross sum, without a reservation of rent, would be such a violation of the 
 condition of the contract that the state would no longer be bound by it. Id. 
 
 17. The object of the statute of charitable uses in England was not to restrain 
 gifts to such uses, but to enforce and make valid such gifts in certain cases in 
 which they had before been held void because the object was too vague and indefi- 
 nite. Norris ft al. v. Thompson's Ex'rs et al., N. S. viii. 244. 
 
 18. Property vested in a religious society, whether incorporated or not, is a 
 charitable use. Schnor's Appeal, N. S. xi. 262. 
 
 19. The society are trustees, and cannot divert the property from the use to 
 which it was dedicated. Id. 
 
166 CHARITABLE USES— CHATTEL. 
 
 20. If they attempt to divert it, equity will raise another trustee. Schnor's 
 Ap/>ml, N. S. xi. 262. 
 
 21. Weight of time anrl acquiescence in determining character of trusts. Note 
 to New Market v. Smart, N. S. iv. 40.3. 
 
 22. Bequest for, when good. Saltonstall T. Sanders, N. S. vi. 184. 
 
 23. Seml)/e, that had the bequest been bad, as implying the purchase of land 
 near Westminster or Southwark, and therefore violating the Mortmain Act, the 
 option for the trustees to establish the institution- in Ireland, where the statute of 
 Mortmain does not apply, would have prevented the bequest from being invalid. 
 Per the Lord Chancellor. TItp. Universiti/ of London v. Ytirrow, O. S. vi. 169. 
 
 24 . Bequest in trust for charitable purpose, tlie interest to accumulate for fifty 
 years, is valid even if the accumulation cannot be allowed so long. Odell v. 
 Odell, N. S. V. 384. 
 
 2.'5. When gifts for charitable uses will be held valid. If the fund he vested 
 in a trustee, to be managed and controlled by him for a lawful, definite, charita- 
 ble use, the gift will be valid, though there be no person in being capable of 
 suing for the enforcement of the trust, Dickson U ul. v. Montgomery et al., O. 
 S. i. 378. 
 
 CHARTER. 
 
 1. A charter must be construed according to the intent of the legislature, if 
 such intent can be ascertained by the language used. Coe v. The Cleveland Rail- 
 road Co., 0. S. vi. 27. 
 
 2. Of an association incorporated by the Supreme Court, has same force as 
 that incorporated by the legislature. Sncieti/ v. Commonwealth, N. S. vi. 633. 
 
 3. Where the charter of a corporation fixes the amount of its capital stock, 
 and the number of shares into which it shall be divided, the corporation cannot 
 make assessments on the shares subscribed for tlie purpose of carrying on the 
 general business of the company, until all tlie capital stock has been subscribed, 
 unless cither expressly or by implication a different intent appears in the charter 
 or in the contract of subscription. P. ^ R. I. Railroad Co. v. Preston, N. S. 
 xii. 242 ; and see Railroad Co. v. Chapni'in, N. S. xii. 80. 
 
 4. When a charter directs that all elections of directors shall be at such times 
 as by-laws direct, no election can be held until a by-law directing when, has 
 been adopted, .tohnmn el al. v. Jones et al., N. S^ xii. 467. 
 
 5. Charter of bank. Held, in Maine, that charter of bank expires when in- 
 junction is made perpetual. Wiswell v. Starr, O. S. ix. 439. 
 
 CHARTER-PARTY. 
 
 1. It was held by the Court of Appeal, in De Mattos v. Gibson, 33 L. T. 
 Rep. 193, that although a court of equity will not decree specific performance of a 
 charter-party, it will restrain the owner from employing the vessel in a different 
 manner from that agreed upon, whether such employment be expressly forbidden 
 or not. 0. S. vii. B39. 
 
 2. The charter of a vessel is entitled to stow as many goods as the vessel can 
 reasonably carry in her hold and other parts usually appropriated to cargo ; and 
 if a larger quantity is shipped, so as to occupy the cabin, the shipowner is entitled 
 to share freiglit for the excess, at the current freight of the day at the place of 
 shipment. Micheson v. Nidioll, 0. S. i. 49. 
 
 3. In what cases bills of lading become the controlling evidence. Strong v. 
 Carrington, N. S. ii. 287. 
 
 4. Stevedore appointed under charter-party is not servant of the master, and 
 tlie latter is nut liable for negligence of such stevedore. Blakie v. Stembridge, 
 0. S. viii. 182. 
 
 CHATTEL. 
 
 1. The lex loci contractus must govern both as to the status of the parties and 
 the subject-matter of the contract. Poindexter v. Anderson, 0. S. vi. 78. 
 
 2. Chattel in course of manufacture — vesting of property — contract to build 
 ship. Woody. Bell, 0. S. v. 318. 
 
 3. Where, under a mortgage of chattels, the mortgagee having the right to take 
 possession and sell on default in payment, did upon such default, after death of 
 mortgagor, take possession of and sell the chattels mortgag<Ml, it was held, that 
 an action of trover would lie against him by the administrator of the decedent to 
 recover the value of tlio goods sold. Katei- v. Steinruck's Adm'r, N. S. i. 760. 
 
 4. Mortgagee's title under chattel-mortgage. IJall v, Samp..on, N. S. vi. 381. 
 
CHATTEL— CHECK. 167 
 
 5. Of cliattcl mortgages containing power to sell — sale thereunder. Chamber- 
 lain V. Martin, N. S. v. 190. 
 
 CHECK. 
 
 1. The maker of a check cannot object to anr delay in presenting it unless he 
 can show special damage therolVom. Emirij v. Hobson, N. S. xiv. 392. 
 
 2. If he withdraws his entire deposit before it is presemed, he is not injured. 
 Id. 
 
 3. Not an assignment of funds. Lunt v. Bank, N. S. vii. 376. 
 
 4. Jlerely lending monej to holder of a cheek on faith of receiving the pro- 
 ceeds of the latter, will not without delivery constitute the lender a bond fi:le 
 holder as against tlie equities, against the original holder. liussell v. Scudder, 
 N. S. iv. 183. 
 
 5. A check is not money. Savings Inst. v. Bank, N. S. x. 532. 
 
 6. A creditor who has received from his debtor a clicck upon a bank, cannot 
 return the same to the drawer, and sue upon the original cause of action, without 
 first demanding payment f and presenting the check to the bank to be certiQed, is 
 not equivalent to a demand of payment. Bradford v. Fox, N. S. ili. 61. 
 
 7. Heceived in payment of a draft, if not paid, will not make tlie draft invalid 
 as an obligation. Ke'ti/ v. National Bank of Erie, N. S. viii. 438. 
 
 8. Is subject to the same rule as draft, as to time of presentment. Id. 
 
 9. A paper writing worded thus: "Philadelphia, November 22d 1869. The 
 Commonwealth National Bank pay to H. Yerkcs or order, one hundred and fifty 
 (December 3d 1869) dollars. John B. Champion ;" stamped as a bill of ex- 
 change, and negotiated in the market before maturity. Ile/d to be a check, and 
 not entitled to days of grace. Champion v. Gordon, N. S. xii. 6. 
 
 10. The bond fide holder of a certified check is entitled to recover from the 
 liank, although the check is a forgery. ILigen v. The Buwerij Nat. Bank, N. S. 
 xii. 594. 
 
 11. There can be no real payee of a forged check. Id. 
 
 12. As between the holder and the bank the liability of the latter attaches upon 
 the check being certified. Id. 
 
 13. Is fraud to draw on a bank in which drawer has no funds. Peterson v. 
 Bank, N. S. vi. 631. 
 
 14. Is fraud in holder to present same for payment, when he knows drawer 
 has no funds. Id. 
 
 15. When deposit of, in bank on which itvvas drawn, no payment thereof. Id. 
 
 16. Distinction between a check and a bill defined. Martin w Bailey, 0. S. 
 iv. 632. 
 
 17. The payee of a check whose name has been indorsed without his authority 
 may recover from the bank paying it. Seventh National Bank v. Cook. N. S. 
 xiii. 522. 
 
 18. Bv recent decision of Court of Appeals, days of grace are to be allowed. 
 I.egnl M'i.-cellani/, 0. S. i. 503. 
 
 19. Where A., the debtor, paid to B., the creditor, two checks, one his own, 
 and one that of a third party, the mere taking of the checks for a pre-existing 
 debt, and without any express agreement that they should be payment does not 
 make them payment; and A. is liable to B. for the second check, if worthless 
 or unpaid, although it is the check of a stranger, and A.'s name does not appear 
 upon it. Mclntijre v. Kennedy, 0. S. v. 433. 
 
 20. It is a general rule that if one is indebted to another by simple contract 
 gives his creditor a promissory note or check drawn by himself for the same 
 amount, without any new consideration, the check or note shall not be deemed a 
 satisfaction of the original debt, unless so intended and accepted by the parties. 
 [I. 
 
 21. Whether a debtor pays out his note or check, or the note or check of a 
 tliird party, the creditor, in the absence of any special agreement, may resort to 
 liis debtor if the check or note is unpaid. Id. 
 
 22. Where a check in the usual form, payable to bearer, is drawn by B. on 
 the E. bank, and passes into the hands and ownership of the N. bank, the latter 
 bank, the holder, cannot maintain an action in its own name against the former 
 bank, the drawee, the check never having been accepted by the drawee, but its 
 payment refused. Per Huntingdon, J., Abbott, J., dissenting. National Bank 
 \.' Eliot Bank, O. S. v. 711. 
 
 23. But whore the third party, seeking to enforce the contract, is particularly 
 
168 CHECK— CHIEF JUSTICES. 
 
 designated in the contract;, he may maintain an action in his own name for a 
 breach of undertaking. Mclntyre v. Kennedy, 0. S. v, 433. 
 
 24. The contract between a bank and its customer in deposits is in tlie nature 
 of a loan, and the relation that of debtor and creditor. Id. 
 
 25. A check, in order to avail the holder, must be presented, accepted and 
 charged. Id. 
 
 26. A check drawn on a bank by a depositor who has funds therein, is to be 
 regarded in law as it is in commercial usage, as a transfer to the payee or his 
 assignee of the funds drawn for, and entitles the legal holder, upon presentation 
 and refusal, to maintain an action against the bank, whether that bolder be the 
 depositor or a stranger. Fogarties v. The State Bank, Ambler v. The State Bank, 
 
 ' O. S. viii. 393. 
 
 27. The contract between the bank and its depositor is, that the former will 
 honor the drafts or checks of the latter, whenever the latter draws upon funds 
 actually on deposit at the time when such check or draft is presented, and pay the 
 same to the depositor himself or his assignee. O'Neal, Ch. J., dissenting, /d. 
 
 28. The custom of marking checks " good." Note to Clajiin v. Farmers' and 
 Citizens^ Bank. 
 
 29. Bank-check payable at subsequent date, entitled to days of grace. Ivory 
 T. Bank, N. S. v. 442. 
 
 30. Bank presenting cheek, without allowing days of grace, liable for. Id, 
 
 31. In an action against the maker of a post dated bankers' check, which was 
 stamped only with the ordinary penny stamp, that although it subjected the 
 parties to it to a penalty for not being stamped with a bill of exchange stamp, 
 was, nevertheless, receivable in evidence. Austin v. Bunyard^ N. S. v. 241. 
 
 32. A check on a bank is in substance a bill, and is governed by tlie same 
 rules. Salt Springs Bank v. Syracuse Savings In.t., N. S. xi. 591. 
 
 33. A check or promissory note, either of the debtor or a third person, received 
 for a debt, is not payment if not itself paid, except in cases where it is positively 
 agreed to be received as payment. Freeholders of Middlesex v. Thomas, N. S. ix. 320. 
 
 34. The holder of a bank check marked "good" stands on the footing of an 
 ordinary depositor, and no right of action exists and the Statute of Limitations 
 does not begin to run until a demand has been made by the holder upon the bank 
 for payment. The Girard Bank v. Bank of Penn Township, 0. S. ix. 620. 
 
 35. The counting out of money to the person presenting a check passes the 
 propertv in the money to the latter and cannot be revoked. Chambers v. Miller, 
 N. S. ii'i. 439. 
 
 36. Altering signature on party's own check is not forgery. Brittain v. Bank 
 of London, N. S. iii. 693. 
 
 37. Where holder of a check sends it to drawees through the post, and does 
 not receive the money by return mail, that is a dishonor of which indorsers should 
 be notified. Bailey v. Bodenham, N. S. iv. 308. 
 
 38. Payment of a check, in the bills of a suspended bank, not known to the 
 parties to be suspended, is not a satisfaction. Ward v. Smith, N. S. viii, 3.';4, 
 
 39. A party who gives up to his debtor his note or check past due and dis- 
 honored for the note or check of a third person, is not in the same position as 
 before the transaction, and is therefore a holder for value of the check received. 
 McBride v. Dortnan, N. S. vi. 736. 
 
 40. Where a person, in consideration of receiving from his debtor the note of 
 a third person, gives up a past- due note of his debtor, it is equivalent to a can- 
 cellation of the old note or check. Id. 
 
 41. Eefusal by banker to pay, he having sufficient funds of the drawer, sub- 
 stantial damages may be recovered. Bolin v. Steward, 0. S. iii. 123. 
 
 42. The rules applying to bills of exchange payable on or after sight do not 
 apply to banker's check. Mullick v. Eadakissen, 0. S. ii. 702. 
 
 CHEMUNG RIVER. 
 
 Opinion of Attorney-General of Pennsylvania as to right of New York to 
 divert waters of, 0. S. iv. 385. 
 
 CHIEF JUSTICES OE UNITED STATES SUPREME COURT. 
 Lives and times of. 0, S. iii. 592. 
 
 CHILDREN. 
 
 When grandchildren are not included in the term. Appeal of Gable's Execu- 
 tors, N. S. x, 692. 
 
CHOATE— CHURCH. 169 
 
 CHOATE, RUFUS. Life and works of. N. S. ii. 321. 
 
 CHOSE IN ACTION. 
 
 1. Though disputed, may be assisned. Cnlcote v. Stanton et. eh, 0. S. iii. 48. 
 
 2. What equities assignees of chose in action take subject to. Downer v. 
 Bank, N. S. vi. 448. 
 
 3. Choses in action of the wife, power of the husband over ; the subject dis- 
 cussed. 0. S. ix. 193, 385. , 
 
 CHRISTIANITY. 
 
 Is a part of the common law of England, and the common law of Englan(1, 
 subiect to constitutional or legislative alteration, is and ever has been a part of 
 thelaw of this country, and as a civil and political institution, the establishment 
 and regulation of the Sabbath is within the just powers of the civil government. 
 Lindenmuller v. The People, 0. S. ix. 591. 
 
 CHURCH. 
 
 1. The law of religious societies and church corporations; subject discussed. 
 N. S. xii. 329, 537 ; N. S. xiii. 65. 
 
 2. The law of religious societies and church corporations in Ohio. N. S. xii. 
 201. 
 
 3. A mandamus cannot issue to compel the trustees of a particular church to 
 admit a minister. Union Church v. Saunders, 0. S. iv. 378. 
 
 4. Where people associate as a religious congregation, and in their constitution 
 declare the qualifications of membership, and a clause provides that those who 
 have no right to the burying-ground and church shall, for the good of the church, 
 pay according to their circumstances from $1 to $50, and their names shall be 
 entered on the church books, and their right shall be as good as others. Held, 
 that one entering under this rule becomes a member of the congregation, and 
 holds his rights as such, and when he ceases to be a member he loses all right as 
 such to the church burying-ground. St. John's Church of Erie v. Hanns, 0. S. 
 ii. 182. 
 
 5. A church organized and endowed as belonging to any particular sect cannot 
 break from that sect. Schnor's Appeal, N. S. xi. 263. 
 
 6. In churches, those who submit to the regular order of the church, though a. 
 minority, are the true congregation. Id. 
 
 7. The title to the property of a divided congregation is in that part which is 
 acting in harmony with its own law, and the law which was accepted before the 
 dispute is the standard to determine which is right. Id. 
 
 8. Courts will not interfere to compel a person to attend worship at any place 
 or church. Feisel v. Munzenmeer, N. S. xi. 776. 
 
 9. Where property is conveyed to a church to he used in a certain manner, 
 courts of equity will compel the execution of such trust. Id. 
 
 10. By invoking it church litigants acknowledge the jurisdiction of the civil 
 power of the state. Garten v. Pinnick, N. S. ix. 210. 
 
 1 1. A church, like every other organized body of citizens, must be consolidated 
 hv an organic law, and under and according to the constitution of the United 
 States. Id. 
 
 12. The organic law of the Presbyterian church is a fundamental compact, 
 voluntarily made between all the members of the unincorporated association, for 
 tlie guidance and protection of each constituent church and member, and neces- 
 sarily inviolable by any delegated power of the aggregate church. Id. 
 
 13. The Presbyterian church is certainly as much bound as Congress by the 
 Federal constitution, and all its members are subordinate to that and the state 
 constitutions, which are supreme over all citizens in every condition. Id. 
 
 14. So far as civil rights and duties are concerned, the civil government has 
 supreme authority to rule ; and to that extent every citizen of every grade and 
 condition owes a paramount allegiance to that sovereignty, and is reciprocally 
 entitled to its protection over all other human power. Id. 
 
 15. Civil tribunals have jurisdiction over controverted claims to the use of 
 chureh property both in England and in this country. Id. 
 
 16. While the general desire of courts of law is to avoid ecclesiastical or 
 spiritual questions, they find it impossible wholly to do so. If a boily of men 
 have wrongful possession of a church or of a sum of money, on the pretence, fur 
 example, that they are the religious body to which the money or the building was 
 
170 CHURCH— CITIZEN. 
 
 destinorl, tlieir opponents have no way of redressing the wrong and vindicating 
 their own rights, except by appealing to the civil tribunals of the country ; and 
 civil tribunals have no means of doing justice except by investigating into the 
 differences of doctrine, discipline or practice, which, to the litigants, may be 
 religious differences, but to the jndge are mere matters of fact bearing on a 
 question of civil right. Garlen v. Pennick, N. S. ix. 210. 
 
 17. Civil courts will interfere with churches or religious associations when 
 rights of property or civil rights are involved. Chane v. Cheney, N. S. x. 295. 
 
 18. The right "to use a church edifice for worship is an interest in real estate, 
 and must be in writing and signed by the party, to be valid. Brutnfield v. Carson, 
 N. S. x. 665. 
 
 19. Equity will not enjoin a pastor of a church from officiating, where it ap- 
 pears that the majority of the society wish him to remain. Trustees of hd. 
 Pres. Church v. Proctor, N. S. xiv. 583. 
 
 20. The authority to exempt houses used exclusively for public worship carries 
 with it the authority to exempt such grounds as are necessary for their use. 
 Gerke, Treasurer, v. PureeU, N. S. xiv. 753. 
 
 21. The English ecclesiastical law forms the basis of the law regulating the 
 affairs of the Protestant Episcopal church. Lynd v. Menzies, N. S. viii. 94. 
 
 22. The cases of ecelesiasttcal matters which come before civil courts, classi- 
 fied and discussed by Miller, J. Watson v. Jones, N. S. xi, 430. 
 
 23. Jurisdiction by a chancery court having been talcen of a church, the com- 
 mon law could not afterwards acquire jurisdiction. Fulton v. Far'.ey, N. S. ix. 
 401. 
 
 CIRCUMSTANTIAL EVIDENCE. See Palmer's Case, 0. S. v. 44. 
 
 CITIZEN. 
 
 1. A corporation is a citizen within the meaning of sections 11 and 12 of the 
 Judiciary Act of Congress of 1789. Barney v. The Globe Bank, N. S. ii. 221. 
 
 2. Whether a corporation is a citizen within the meaning of the Judiciary Act 
 discussed. Note to Barney v. Globe Bank, N. S. ii. 221. 
 
 3. It is not material in such case that the corporation has an office and does a 
 large business in the state of which the other party is a citizen ; nor that some of its 
 stockholders are citizens thereof. Wheeden v. The Camden and Amboy Railroad 
 Co., 0. S. iv. 296. 
 
 4. Corporations are not citizens within the meaning of the Constitution of the 
 United States. Paid v. Communwealth of Virginia, N. S. ix. 109. 
 
 5. The members of a corporation are legally presumed to be citizens of the 
 state by which it was created. Hobbs v. Manhattcn Ins. Co., N. S. ix. 127. 
 
 6. For the purpose of service by attachment of property, a corporation is to 
 be held a citizen of the state in which it is incorporated. Atkins v. Fibre Co., 
 N. S. X. 389. 
 
 7. Service of a libel in personam in a maritime cause, in the admiralty court of 
 one district, upon a citizen of another district, by attachment of his property, is 
 not a good service, and confers no jurisdiction. Insurance Co. v. Jj. if C. 
 Steam Navigation Co., N. S. x. 383. 
 
 8. The people of other nations may sue the citizens of the United States, The 
 Scotia, N. S. xii. 186. 
 
 9. Citizen of the United States having child born in foreign country, subject 
 discussed. 0» S. ii. 193. 
 
 10. When the United States forces, during the late war, acquired firm occupa- 
 ti6*i of part of an insurrectionary state, thfi citizens of that part occupied were 
 restored to their relations as citizens of the United States, and contracts between 
 them and other citizens became valid. Graham v. Merrill, N. S. viii. 477. 
 
 1 1 . The Fourteenth Amendment declares what shall constitute citizenship of 
 the United States as well as of the several states, and gives Congress the power 
 to protect the citizen in all the franchises, rights and privileges wliich belong to 
 Iiim either as a citizen of the United States or of a state. United States v. Peters- 
 burg Judges of Flection, N. S. xiv. 238. 
 
 12. The rights which are given to a citizen by a state, such as the right to vote 
 when possessing certain qualifications, may be modified or taken away by the 
 state, and the United States cannot interfere, but so long as the right remain", 
 the United States has the power to protect him iu its enjoyment and exercise. Id. 
 
 13. Kights which do not arise from cirizcnship but accrue to men as men, such 
 
CITIZEN. 171 
 
 Rs the security of life and property, remnin under the exelusive protection of the 
 states. Uni'i'd States v. PUerAturq Jwifjrs of Election, N. S. xiv. 238. 
 
 14. The Enforcement Act of Jliiy 31st 187f), providinp; for the punishment of 
 ohstructing voters, is appropriate lej^islation to enforce tlie Fourteentli Amend- 
 ment, and is, therefore, constitutional ; and an indictment under it cliarginj; the 
 prevention of legally qualified citizens of Viririnia from votin<r, and the refusal 
 to rejrister such citizens as voters, is valid and sufficient, although it does not 
 charge that the acts were done on account of the race, color, or previous condi- 
 tion of servitude of the citizens. Id. 
 
 15. The word citizen is often used' to convey the idea of membership in a 
 nation, ilinor v. Happersett, X. S. xiv. 522. 
 
 16. A "woman if born of citizen parents within the jurisdiction of the United 
 States is a citizen as much before as since the adoption of the Fourteenth 
 Amendment. Id. 
 
 1 7 . The right of suffrage is not necessarily one of the privileges of citizenship. 
 Id. 
 
 18. Suffrage is not co-extensive with the citizenship of the states. Id. 
 
 19. Neither the constitution nor the Fourteenth Amendment made all citizens 
 voters. Id. 
 
 20. A provision confining the right of voting to "male citizens of the United 
 cStates" is no violation of the Federal constitution. Id. 
 
 21. In states hiiving such provision, women have no right to vote. Id. 
 
 22. A person not a citizen of the United States or a temporary resident of or 
 commorant in the state in which the action is brought, but a resident and citizen 
 ef the kingdom of Great Britain, may bring an action against a person not a 
 resident of the state, or having property therein subject to attachment, for a 
 cause of action not local in its nature, where service of tlie process by which the 
 suit is commenced is made on the defendant personally within the state. Pea- 
 body V. Hamilton, N. S. xi. 311. 
 
 23. The fact that a plaintiff is not a resident of a state, or personally present 
 in it, and is a resident and citizen in the kingdom of Great Britain, does not 
 disqualify liim for bringing a suit therein against a citizen of the United States, 
 but a non-resident of the state in which tlie action is brought and having no pro- 
 perty therein subject to attachment. Id. 
 
 24. The fact that a defendant is not a resident of a state and has no property 
 therein subject to attachment, is not a reason why he cannot he sued in the state 
 in a transitory action by a plaintiff not a citizen of or resident in the United 
 States, if only he be personally served with process within the state. Id. 
 
 25. It is not necessarj- that a person should be a resident of a state or of 
 the United States, or that he should be personally present in a state, in order 
 that he may be entitled to bring an action against a defendant who is not a resi- 
 dent of the state and who has no property in it subject to attachment, if only the 
 defendant be found and served with process within the state. Id. 
 
 26. Process for the commencement of a suit may be served on the defendant, 
 a non-resident of the state, on board a foreign vessel at her dock and before she 
 is moored to it, and such service is good even if the defendant be only transiently 
 within the jurisdiction., on his way from a foreign country to his residence in an- 
 other state of the union. Id. 
 
 27. Accordingly, where the defendant, a citizen and resident of New York, 
 ■was served with process on board an Englisli steamer, bound from Liverpool, 
 England, to Boston, at her dock in East Boston (in the waters of tlie state of 
 Massachusetts), before she was moored, and while defendant was journeying 
 from Halifax, Nova Scotia, to his home in New York, said vessel being a " Brit- 
 ish mail steamer :" Held, that such service was good and that it gave the court 
 jurisdiction. Id, 
 
 28. Where the plaintiff in an action of debt is a non-resident, he will not be 
 required to pay the tax under the Act of 1870, on the debt before suing in a 
 court of the state of Georgja. McDonild v. Feagan, N. S. xi. 336. 
 
 29. Citizenship is not forfeited under the Act of March 3il 1865, for deser- 
 tion, until after conviction.) Sevenmce v. Henley, N. S. xi. 633, 
 
 .30. Free negroes, born ip the United States, are citizens thereof, and may be- 
 come citizens of a state hy residence. Smith v. Moody, N. S. vi. 714. 
 
 31. What constitutes citizenship. Eight to vote and hold office not essential. 
 Id. 
 
172 CITIZEN—CITY BONDS. 
 
 32. Constitutional Law, sect. 4. Citizen's riglit of free access to the seat of 
 government or any public federal offices. Crandallv. Nevada, N. S. vii. 440. 
 
 33. Unless an individual citizen is specially injured by a public nuisance, he 
 cannot bring suit in his own name. Higby v. Camden and Amboy Bailroad Co., 
 N. S. viii. 252. 
 
 34. A citizen whose rights are affected by such statute has the right to test its 
 constitutionality by appropriate proceedings in the courts ; but a public ministerial 
 officer has no such privilege, his official duty is to obey the law. People v. Salo- 
 mon, N. S. ix. 232. 
 
 sa. Citizens faithful to the United States who resided in the seceding states 
 during part of the war, but escaped to the loyal states or neutral countries, lost 
 ; no rights by temporary residence in the seceding states. The Peterjioff, N. S. 
 
 vii. 62. 
 
 36. Congress may deprive a criminal of his citizenship, and thereby affect his 
 right to vote, but the direct regulation of the qualification of voters in a state is 
 not in the province of Congress. Huher v. Reily, N. S. vii. 57. 
 
 37. Citizens of United States who were aliens in Texas became citizens of 
 Texas on admission of that state. Osier-man v. Baldwin, N. S. vii. 317. 
 
 38. At common law, the duty of allegiance and the rights of citizenship passed 
 by descent, the child following the condition of the father ; so that if a father 
 out of lh« realm was within the allegiance of the king, his child by an alien wife 
 was born a subject to the British crown. Ludlam v. Ludlam et al., N. S. iii. 595. 
 
 39. The extent of the power of the state to exclude a foreigner from its terri- 
 tory is limited by the right of self-defence. In the matter of Ah Fong, N. S. xiii. 
 761. 
 
 40. Certificates of naturalization are records, and cannot be impeached col- 
 laterally. Scott V. Strobach, N. S. xiii. 461. 
 
 41. City may be enlarged by legislature — not the province of the judiciary to 
 inquire into it. Weeks v. The City, N. S. viii. 625. 
 
 CITY BONDS. 
 
 1 . The holder of a city bond issued to a plank-road company or bearer, issued 
 in aid of the construction of the road, in pursuance of a legislative act, is not 
 bound to examine the records of the city to ascerljain whether the resolution of 
 the council for issuing the bonds corresponds with the resolution recited in the 
 bonds. That recital binds the city. Mygatt v. The City of Green Bay, 0. S. 
 viii. 271. 
 
 2. Where city bonds are issued to a corporation or plank-road company, payable 
 in the city of New York, without express authority of law to make them so pay- 
 able, the bonds are not void for this reason, but the city is not bound to transport 
 funds to New York for such contract. Id: 
 
 3. The act under which the bonds are issued is the basis of the contract ; and 
 dealers in such bonds are chargeable with notice of the Act, it being a public 
 statute. Id. 
 
 4. Where the constitution of a state requires that all general laws shall be 
 published before going into effect, n legislative act, authorizing a city to issue 
 bonds for stock in a railroad company, is not a general law within the constitu- 
 tional provision ; and the bonds are valid although the act was not published 
 until after they were issued ; and then in the volume of private and local acts. 
 Seeling v. The City of Rucine, 0. S. viii. 603. 
 
 5. The city issuing such bonds in pursuance of the act, cannot controvert tlie 
 constitutional power of the legislature to declare, iti the body of the act, that it 
 shall take effect immediately after its passage. Id. 
 
 6. After the act was published the city authorities paid the interest on the 
 bonds for several years ; and the inhabitants of the city elected commissioners to 
 represent the stock received for the bonds, while they were passing as promissory 
 notes, payable to bearer. These acts are an affirmance of the bonds in favor of 
 a bond fide holder. He was not bound to look further than the act. Id. 
 
 7. An act authorizing the city to issue bonds payable in twenty years, allowed 
 the city to make the bonds payable twenty years from the date of the act. The 
 bonds are valid, although they were not made payable twenty years from their 
 date. Id. 
 
 8. The city of Madison before the publication of its charter, issued certain bonds, 
 and subsequently levied and collected a tax to pay the interest on such bonds, and 
 paid it to the- holders of the bonds; held, that this act was'such a ratification of 
 
CITY BONDS— CLAIMS. 173 
 
 the bonds as wouUl bind the city, provided it would have been bound if the char- 
 ter had been in force at the time tlie bonds were issued. Mills, Respondent, v. 
 Gleason, Treasurer, .(•(-., Appellant, O. S. riii. 693. 
 
 CIVIL GOVERNMENT. 
 
 The fundamental principles of, discussed. The Madison and Indiana Railroad 
 ,-. ]Vltiti-neck, 0. S. V. 214. 
 
 CIVIL LAW. 
 
 1. Leading article on the study of; and historical sketch. N. S. ii. 385. 
 
 2. The rule of the civil law that a sound price implies a warranty that the nr- 
 ticle is sound, is not a rule of the common law. Eagan v. Call, O. S. viii, 488. 
 
 3. Leading article from Pothier, and discussion of dissolution of partnership. 
 0. S. vii. 129. 
 
 4. The relation of the civil to the common law; subject discussed. N. S. xii. 
 673. 
 
 CIVIL RIGHTS BILL. 
 
 1. Regulations of the school committee of Boston, requiring pupils to learn 
 the ten commandments. &c., not a violation of the constitutional provision secur- 
 ing to the citizen freedom of conscience and worship. Com. v. Cooke, 0. S. vii. 
 417. 
 
 2. Act of Congress of 1866, known as the Civil Rights Law, is constitutional. 
 United States v. Rhodes, N. S. vii. 233. 
 
 3. A negro purchasing a first-class dinner ticket is entitled to sit at same table 
 with the other passengers. Cogrr v. iV. IT. Packet Co., N. S. xiii. 162. 
 
 4. Congress cannot protect the rights not derived originally from the constitu- 
 tion, but from the mother country, but should prevent the states from violating 
 them. Milligenv. Hovey, N. S.xiii. 122. 
 
 5. An Act of Congress which says "no person shall be excluded from the 
 cars of a railroad, on account of color," means that colored persons shall travel 
 in tlie same cars as white ones. Railroad Co, v. Brown, N. S. xiii. 326. 
 
 CLAIMS. 
 
 1. The Act of Congress of the 3d of March 1797, provides that in a suit by 
 the United States to recover a balance due on the books of the treasury depart- 
 ment, the defendant cannot give in evidence as a set-off a claim against the 
 government which has not previously been presented to and disallowed by the 
 proper accounting officer, Without proving that it was not before in his power to 
 produce the voucher for such claim, and that he was prevented from exhibiting it 
 '• by absence from the United States, or some unavoidable accident." United 
 States v. Charles K. Smith, 0. S. v. 268. 
 
 2. The rejection of an account or claim against the United States by an ac- 
 counting officer of the government authorized by a special act of Congress to 
 adjust the same on equitable principles, does not preclude the defendant when 
 sued from setting up such rejected claim or account as a set off. Id. 
 
 3. The legislation of Congress prohibits any extra compensation to an officer 
 fur services performed properly pertaining by law to his office. Id. 
 
 4. The defendant, as secretary of Minnesota territory, having a fixed salary 
 as such, was not entitled to claim, in addition thereto, the salary of governor 
 during the absence of that officer, as the act organizing the territory made it the 
 duty of the secretary, " in case of the death, removal, resignation, or necessary 
 absence of the governor," to discharge the duties of that office, without any pro- 
 vision for an increase of compensation to the secretary. Id. 
 
 5. The proviso in the second section of the Act of September 30th 1850, ex- 
 pressly prohibits the allowance of double salaries in all cases. Id, 
 
 6. The act organizing the territory of Minnesota, made the secretary dis- 
 bursing officer of the territorial government, and he cannot claim a commission 
 on such disbursements. Id. 
 
 7. Where an officer with a salary payable quarterly, is appointed for four 
 years " unless sooner removed by the president" and a removal is made during 
 a current quarter, he is not entitled to his salary to the end of the quarter. Id. 
 
 8. By the organic Act of Minnesota territory the general government became 
 pledged to defray "the expenses of the legislative assembly, the printing of the 
 laws, and other incidental expenses ;" and the defendant is entitled to a credit 
 for services rendered, or expenditures made, within the fair scope and meaning 
 
174 CLAIMS— COIN. 
 
 of these terms, so far as they did not pertain to the office of secretary of the 
 territory : but the words " other incidental expenses " must be restricted to such 
 expenses as were incidental to the lesfislative assembly and the printing of the 
 laws. Unittd States Y. Charles K. Smith, 0. S. \. 628. 
 
 9. The second section of the Act of 2yth of August 1842, which applies to 
 territories then or afterwards to be organized, provides that no act of the legisla- 
 ture of a territory shall be deemed of sufficient authority for a payment by the 
 national treasury and requires proper vouchers, and proof of the same, to be exhib- 
 ited to the accounting officers of the proper department. Jd. 
 
 10. In a judicial case involving the accounts of a former secretary of a terri- 
 tory, in wliich credits are claimed, which have been rejected by the treasury 
 department, the fact that such credits have not been embraced in the estimate 
 required by the organic act of the territory to be previously made by the secre- 
 tary of the treasury, does not preclude their allowance by a jury, ifnot objection- 
 able on other grounds. Id. 
 
 CLAIMS, COURT OF. 
 
 1, Appeals from, to Supreme Court of United States, Act of Congress au- 
 thorizing, considered. N. S. V. 111. 
 
 2. In the Court of Claims a party cannot testify in his own behalf. The juris- 
 diction of the Court of Claims stated and reviewed. Jones v. United States, N. 
 S. V. 353. 
 
 CLERGYJiIAN. 
 
 As a general principle, every person when called upon in a court of justice is 
 bound to testify whatever he may know touching the rixatter inquired of; a 
 principle, however, subject to certain exceptions, as professional communications 
 made to attorneys, &o. Commonwealth v. Cronin, 0. S. iv. 465. 
 
 CLERK. 
 
 The salary of a clerk is not assignable before it is earned, in whole or in part. 
 Fairgrieves v. The Lehigh Navigation Co.^ O. S. v. 161. 
 
 CLIENT AND ATTORNEY, their relations discussed. N. S. v. 385. 
 
 COAL. 
 
 Trover will lie to recover the value of coal dug by the owner of land, through 
 a mistake of boundaries, out of adjoining land. Forsyth v. Wdls, N. S. i. 225. 
 
 CODE. Comments on revised penal code of Pennsylvania. 0. S. viii. 577. 
 " Comments on new civil and penal code of Iowa. 0. S. viii. 317. 
 
 CODE NAPOLEON. Historically discussed and explained. 0. S. iii. 641. 
 
 CODICIL. 
 
 When codicil to will may be admitted to probate subsequently to probate of 
 will. Waters v. Stickney, N. S. vi. 384. 
 
 CO-EMPLOYEE. See Nkgligjsnce ; Railroad. 
 
 When an employee enters into the service of a railroad company, he assumes 
 the risks incident to such employment, such as the carelessness or unskilfulness 
 of his co-employees, when they were skilful and careful at the time of their em- 
 ployment. Hawley v. Bait. Sf Ohio Railroad Co., 0. S. vi. 352, 
 
 COIN. See Le&al Tender Notes. 
 
 1 . A bond payable in gold or silver coin is satisfied, by a payment in legal 
 tender notes. Murray v. Gale, N. S. viii. 381, But see Branson v. Rhodes, N. 
 S. viii. 251. 
 
 2. Coin deposited in bank as special deposit must be paid in coin. Bank v. 
 Swain, N. S. viii. 754. 
 
 3. Covenant to pay rent in currency equal in value to money of Great Britain 
 — construction of. Stranaghan v. Youmans, N. S. xiii. 255. 
 
 4. Master of a vessel paying gold to pay expenses must be reimbursed in gold. 
 McMoon's Adm'r V. Cummings, N. S. xiii. 398. 
 
 5. Depositor in bank having a balance to his credit in coin, and also in treasury 
 notes, drew for coin, but was tendered notes only — evidence of custom of bants 
 to pay coin for checks on such balances not admissible. Thompson v. Riggs, N. 
 S. vii. 122. 
 
 6. In action against an agent for refusing to deliver bonds bought for the 
 
COIN— COLLATERAL SECURITY. 175 
 
 principal, the latter mav, as an element of dnmnfres, prove that the bonds were 
 jiayable in jjuUI coin, nnil also the premium on coin. The Le^al Tender Acts do 
 not exclude such evidence from the jury, nor do they allow an agent to receive 
 f:old and pay currency to his principal. Siinfilcinx v. Lnw, N. S. vii. 508. 
 
 7. Gold paid into court, on a conditional verdict in ejectment, prior to the 
 legal tender law, cannot be recovered in an action of trover subsequently to the 
 passage of the law. Aurenis v. Porter, N. S. viii. 61. 
 
 8. The clause in the Act of Congress of February 25th 1862, and two subse- 
 quent acts, making notes of United States a legal tender for debts, has no refer- 
 ence to taxes imposed by state authority. Lane Count i/ v. Oregon^ N. S. viii. 251. 
 
 9. A contract to pay in gold and silver coin is a contract to deliver a certain 
 weight of gold and silver. Butter v. Horwitz, N. S. viii. 443. 
 
 10. Where it appears to be the clear intent of a contract that payment is to be 
 made in gold or silver, damages shonld be assessed in coin, and judgment en- 
 tered accordingly. Id. 
 
 1 1 . Whether the Legal Tender Acts of Congress be constitutional or otherwise, 
 a contract which provides for payment in coin, may be enforced in conformity 
 "with its stipulations, and judgment may be rendered for the amount in coin, and 
 the same enforced by execution, on which coin only shall be collected. Chesa- 
 peake Bank V. Swain, N. S. viii. 754. 
 
 12. Where a note is for dollars, payable by its terms, in specie, the terms " in 
 specie" are merely descriptive of the kind of dollars in which the note is payable, 
 there being more than one kind of dollars current recognised by law, and mean 
 that ,the designated number of dollars shall be paid in so many gold or silver 
 dollars of the coinage of the United States. Trth'Icock v. Wilson, N. S. xi. 151. 
 
 13. The Act of February 25th 1862, in declaring that the notes of the United 
 States shall be lawful money and a lethal tender of all debts, only applies to debts 
 which are payable in money generally, and not to obligations p.ayable in com- 
 modities or obligations of any other kind. Id. 
 
 14. When a contract for money is, by its terms, made payable in specie or in 
 coin, judgment may be entered thereon for coined dollars : Bronsi.n v. Rhodes, 7 
 Wallace 229, affirmed. Id. 
 
 COLERIDGE, SiK JOHN TAYLOR. Lecture by, on " My Recollections of the 
 Circuit." 0. S. ix. 257, 
 
 COLLATERAL INHERITANCE TAX. 
 
 1. An act legitimating children of testator after devise to them has vested, does 
 not relieve from. Commonwealth v. Stump, N. S. vii. 61. 
 
 2. United States bonds and stocks are subject to. Fer.na. v. Strode, N. S. v. 435. 
 
 COLLATERAL SECURITY. 
 
 1. As to notice of sale of pledges. See Leuus v. Graham, O. S. v. 368. 
 
 2. Release of endorser of a promissory note, released the collateral security 
 depositeil by endorser. Denny v. Lyon, 0. S. ix. 626. 
 
 3. Where unfinished property is held, and the creditor finishes it, he will be en- 
 titled to be refunded his payment, before any application is made to payment of 
 the original debt. Rowan v. Bank, N. S. xiii. 53. 
 
 4. Drafts of third persons not taken in payment are to be considered simply 
 as collaterals. Allen v. Clark, N. S. xiii. 194. 
 
 5. Creditor taking chose in action for pre-existing debt, eft'eet of. Ashton's Ap- 
 peal, N. S. xiii. 395. 
 
 6. Duty of pledgee. Sitgreave.i v. Bank, N. S. v. 249. 
 
 7. Holder of notes as collateral is a trustee, and suit properly brought in his 
 name. Clark v. Titcomh, N. S. iv. 124. 
 
 8. Notes pledged as collateral security may be held by pledgee, though the 
 pledgor was not the pwner. Bank v. Iloge, N. S. vi. 227. 
 
 9. Railroad bonds with coupons, pledged as collateral for payment of promis- 
 sory notes,, may he sold if the notes are not paid at maturity. Canal Sj- Buvkiny 
 Company v. Lewis, 0. S. vi. 428. 
 
 10. Where the negotiation of a note or bill, as between debtor and creditor, is 
 understood to operate either as conditional payment, or to create an expectation 
 between the parties that the collection of the principal debt shall be delayed until 
 the time of payment of the collateral security, the creditor must be said to take 
 the paper upon full consideration and in the due course of business. Note to Le 
 Breton v. Peirce, N. S. i. 36. 
 
176 COLLATERAL SECURITY— COLLISION. 
 
 11. Where the new security is for the same amount as the debt, and ispayahlo 
 on time, there is a strong implication that the creditor will wait until the ma- 
 turity of the new security. Note to Le Breton v. Peirce, N. S. i. 36. 
 
 12. In such case the new security is taken for value, and all equity in favor 
 of other parties will be excluded. Id. 
 
 13. So also where the security is for a larger sum than the existing debt. Id. 
 
 14. But if the new security is of a different character from the original debt, 
 as where the creditor takes a mortgage for the payment of the sum due in six 
 months, or where the new security is not given in lieu or on account of the ex- 
 isting debt, but as a mere pledge, the title of the new security remaining in the 
 debtor, and the creditor being a mere trustee of the debtor for the collection of 
 the new security to be applied, when collected, upon the existing debt ; there is 
 no implied undertaking not to collect the existing debt in the meantime. Jd. 
 
 15. If given at the time the debt is created, as an indncement for the credit, 
 and is a negotiable instrument and still current, and is negotiated to the creditor 
 so as to make him a party to the paper, and impose upon him the duty of demand 
 and notice, all equities of third parties are excluded. Id. 
 
 16. But if the collateral is not so negotiable as to make the creditor a party to 
 the paper and impose upon him the duty of making demand and giving notice, 
 but making him a mere agent of the dehtor for the collection of the new bill or 
 note ; there is no ground i'or excluding equities in other parties, unless the cred- 
 itor negotiates the security to some third party for value,- and while current. Id. 
 
 17. The effect of receiving a negotiable security without surrendering any of 
 the former securities for an existing debt. Id. 37. 
 
 18. By the usage in New England the acceptance of the new note or bill, 
 primd facie extinguishes the debt. Id. 39. 
 
 19. The acceptance of a note or bill payable at a future day, on account of a 
 pre-existing debt, will suspend the debt until the note reaches maturity. Id. 39. 
 
 COLLECTOR OF THE POET. 
 
 As to action against. See Gamble v. Mason, 0. S. vii. 178. 
 
 COLLECTOR OF UNITED STATES REVENUE. 
 
 Collector cannot devolve the duty of affixing stamp upon his deputy, except 
 in the event of sickness or temporary disability. Beebe v. Sutton, N. S. vi. 574. 
 
 COLLISION. 
 
 1. When cases of, are of admiralty jurisdiction. Note to Steamboat v. Trevor, 
 N. S. vi. 596. 
 
 2. Collision between ships ; burden of proof, &c. Potter v. Pettis, 0. S. ii. 679. 
 
 3. A party claiming to be indemnified for consequential damage, by reason of 
 the detention of his vessel whilst under repair, must prove that he has sustained 
 a direct and positive loss thereby; it will not be sufficient to aver that the vessel 
 might have earned certain probable freight. The Clarence, 0. S. i. 52. 
 
 4. Where bail was entered in £250, but the costs raised the amount recovered 
 hejond £250, the court decreed the claimants as responsible for the overplus. 
 The Termisonata, 0. S. iii. 638. 
 
 5. Although the court cannot establish a rule to bind vessels navigating the 
 high seas to carry signal lights, yet where one vessel does so and another does 
 not, the court, in case of a collision, will go some way to treat the dark boat as 
 the wrongdoer. Barque Delaware v. Steamer Osprei/, 0. S. i. 27 ; see also Id. 
 O. S. ii. 699. 
 
 6. The court, going in advance of hitherto adjudicated cases, would seem to 
 enforce the obligation upon all boats navigating bays and rivers, not only to 
 show lights on an approach, but to carry them constantly. Id. 
 
 7. A vessel which moors alongside of another, at a wharf or elsewhere, be- 
 comes responsible to the other for all injuries resulting from her proximity 
 which human skill or precaution could have guarded against. Vantine v. 2'he 
 Lake, 0. S. ii. 699. 
 
 8. Besides the cost of repairs in this case, charges for wharfage while repair- 
 ing, for the time of one of the owners and of the crew in raising and clearing 
 cut the injured vessel, and for the loss of profits to the vessel while sunk, and 
 during the time she was being repaired, allowed by the court in the assessment 
 of damages. Id. 
 
 9. Rules of navigation as to collisions. Townsend v. The Eagle, 0. S. vii, 
 606. 
 
COLLISION. 177 
 
 10. In navigntinp; a vivcr, omission to observe tlic. usage of (lie river, in keep- 
 ing to the right of the channel in proper time, renders vessel liable for collision. 
 The Vunderbilt , N. S. vii. 57.i. 
 
 U. A ship voluntarily cutting herself loose, she takes the risk of colliding, and 
 having collided, must bear the consequences. Sherman v. Mott, N. S. xi. 716. 
 
 12. Collisions between steamboats on navigable rivers of the United States 
 occurring above tide-water, constitute causes of admiralty cognisance. Steam- 
 boat Hive v. Tr(Voi\ N. S. vi, 586. 
 
 13. Insurers liable for amount paid for injury by collision. Blanchard v. Jns. 
 Co., N. S. vi. 508. 
 
 14. Damages in such case, when counsel fees, agents' commissions, and 
 premium for exchange may be included. Id. 
 
 15. Where steam vessels are navigating under the rules laid down by the 
 board of admiralty, with respect to the number and color of the lights to be car- 
 ried, it is essential that the master of each vessel should have his lights properly 
 trimmed and burning. The Rob liOij, 0. S. i. 51. 
 
 16. When a vessel at sea causes d-imagc, an inchoate lien emerges, and 
 when the amount of the damage is judicially ascertained by a proceeding in 
 rem, the lien relates back to the period when it first attached, and takes priority, 
 to the extent of the then value of the vessel, of all other liens, and travels with 
 the vessel wherever she goes, or into whose hands soever she passes ; but this 
 lien arising out of damage is not indelible, but m.ay be lost by negligence or delay, 
 where the rights of third parties are compromised. A foreign attachment, like 
 that which prevails in London, Scotland, &c., is intended solely to compel an 
 appearance ; whereas, a proceeding in rem in the Admiralty Court for wages, 
 salvage, collision, or bottomry, goes ag.ainst the ship in the first instance. A 
 maritime lien and a proceeding in rem are correlative ; wherever a proceeding 
 in rem is competent, a lien exists, and vice versa. Ilamer v. Bell et a/,, 0. S. i. 52. 
 
 17. Both vessels equally in fault. A close-hauled vessel on the larboard tack, 
 and a starboard tacked vessel with the wind free, meeting each other, and neither 
 vessel giving way in time, both vessels held to be equally in fault. The Com- 
 mercr, 0. S. i. 49.' 
 
 18. Duties of licensed pilot and master of vessel. Joint negligence of pilot 
 and of master. Liability of owner for damages. Hammond, app., Rogers, The 
 Christiana, 0. S. i. 50. 
 
 19. A vessel with a duly licensed pilot on board, condemned in a case of 
 collision, the fault equally imputable to the pilot and the crew on board. The 
 LochVtho, 0. S. i. 50. 
 
 20. Duties of steamers in the navigation of the Mississippi. Shuie v. Goslee; 
 Goslee v. Shute, 0. S. iii. 465. 
 
 21. A steamer leaving the ordinary and usual track of vessels, under the cir- 
 cumstances is bound to show some palpable necessity for the deviation. Id, 
 
 22. An ascending boat, running at great speed, in a dark night, at a time 
 when a descending boat is visible, of whose course she is doubtful, takes the risk 
 of a collision ; she ought to ease or stop her engines till she is assured of the 
 course of the other. Id. 
 
 23. A steamer is responsible for a collision which a better lookout than she 
 had might have prevented. Id. 
 
 24. Where a collision is produced by the fault of one boat, she cannot com- 
 plain that the other had not used extraordinary measures of precaution before, 
 or the clearest judgment in the selection of the method of extrication after the 
 collision became imminent. Id. 
 
 25. A libellant claiming damages on the ground of a collision with another 
 boat must make it appear that there was no want of ordinary care and skill in 
 the management of his boat, and that the injury for which he claims compensa- 
 tion resulted from the sole fault of the other boat. But the faulty management 
 of one boat will not excuse the want of proper care and skill in the other. Lucas 
 et al. V. The Steamboat Swann, 0. S. iii. 659. 
 
 26. A case of damage resulting from inevitable accident is defined to be " that 
 which a party charged with an off'ence, could not possibly prevent by the exercise 
 of ordinary care, caution and skill." Id. 
 
 27. There is no ground for the conclusion in this case that the injury was un- 
 avoidable ; but, on the contrary, it is a case of mixed or mutual fault. Id. 
 
 28. But to constitute a proper basis ibr a decree, apportioning the damages 
 12 
 
178 COLLISION. 
 
 cqraMy to each 'boat, as in K case of mixed or mutual fault, tlio evidence must 
 enable the court to find the .specific faults of each from which the injury resulted. 
 Lnais It al. v. The Steamboat Swann, 0. S. iii. 659. 
 
 29. If the court is satisfied that both boats were in fault, and yet from the con- 
 flict in the evidence cannot find, with reasonable certainty, the specific faults of 
 each, it constitutes a case of inscrutable fault; and, in such case, in accordance 
 with the law as settled in the United States, a decree for the equal apportionment 
 of the damages as resulting from the injury, may be entered. Id. 
 
 30. The pi'esent is adjudijed to be such a case, and a decree is entered in accord- 
 ance with the principle stated. IlI. 
 
 31. In cases of accidental collision, when neither is in fault, each party bears 
 his own loss. Ship Washington v. Ship Atiiry Frances, 0. S. i. 375. 
 
 32. A steamer on her way to sea at night, with her signal lantern properly 
 placed, saw a barque without lights, heading up the river to the starboard of her 
 wake. She accordingly starboarded her helm to keep off the track of the linrque, 
 but the latter, about the same time, unobserved by the steamer, changed her 
 course, by porting her helm, so that a collision ensued. He'd, that as the course 
 and position of the steamer could be well understood on the barque, the latter 
 was in fault, and she was accordingly condemned in damages. Palmer r. The 
 Osprey, 0. S. i. 15. ' 
 
 33. When two vessels are approaching each other, and the character and course 
 of cither cannot bo determined by the watch on board, such vessel should be 
 stopped or slowed until the course of the approaching vessel be ascertained, 
 whether it be a sail or a steam vessel. Eben B. Wardet al. v. Philo Chamberlain 
 el al, 0. S. V. 330, 
 
 34. Some of the rules of the Trinity masters, intended to apply in navigating 
 a river, when applied to the open sea, are more likely to produce collisions than 
 to avoid them. Id. 
 
 35. In certain conditions, one vessel is to keep her course, and the other to 
 avoid her ; how can a concurrence of judgment as to their position, bv their re- 
 spective masters, he expected, so as to comply with the rule of right,"when the 
 wind is fresh ? Uncertainty in this respect produces many collisions. Id. 
 
 36. All the rules of navigation should be simple and easily understood. Id. 
 
 37. Complicated rules are often misunderstood, and more frequently applied to 
 facts supposed which have no existence. Id. 
 
 38. So far as my limited experience on this subject enables me to speak, the 
 rules of navigation recognised, instead of insuring safety, have greatly increased 
 the number of collisions. Per IMcLean, J. Id. 
 
 39. If the rule were, that all vessels meeting each other should turn to the 
 right, all would understand it and collisions would be avoided. Each vessel in 
 such case, would know the course of the other; and if either could not turn as 
 directed, would not run in the path of the other. I am aware that this is too 
 simple, and too easily understood for technical lawyers on the bench or at the 
 bar. It is the rule on every turnpike road, and such maxims are always founded 
 on common sense. Per McLean, J. Id. 
 
 40. When fault may be attributed to two vessels, the damages are divided and 
 not apportioned according to the degree of ifault. Id. ' 
 
 41. Where a steamboat and sail vessel are approaching each other and a col- 
 lision takes place between them, if there is mutual fault, the loss that is occa- 
 sioned must be divided. Haney and Trendiard, owners of the schooner Perrin v. 
 The steamer Louisiana and George W. Bussell, her captain, O. S. vi. 422. ' 
 
 42. A steamboat in the night time navigating the waters of a hav or river 
 must always have a lookout, who, for the time, has no other duty or occupation! 
 
 Id. 
 
 4.3. The Tuscarora and the Andrew Foster, two American ships, came in 
 «ollision in the Irish channel, whereby the latter ship, together with her car.'o 
 was wholly lost. The owners of the cargo of the Andrew Foster attached the 
 Tuscarora in the English admiralty, and she was condemned to damages ■ upon 
 a Wll filed in the Lord Justices' Court, asking for the benefit of the English 
 Merchants' Shipping Act of 1854, which is similar in the provisions to the Act 
 of Congress of March 3d 1831, it was held, that inasmuch as botli ships were 
 foreigners, the American owner could not avail himself of the British statute 
 before an English court. Cope v. Doherty, 0. S. vii, 181. 
 
 44. It would seem that neither the English nor the American statute can h& 
 
COLLISION— COMMISSIONER'S DEED. 179 
 
 made available to the American ship owner in case of collision between foreign 
 ships, when the cause is before an English tribunal. Perrin v. Steamer Louisiana 
 vi. 422. ' 
 
 COMBINATION FOR ILLEGAL PURPOSES. 
 
 Bond void as against public policy. Hilton v. Eckerski/, O. S. iv. 125. 
 COMITY OF COURTS. 
 
 Not of the state where the statute was passed. Legislative competency to make 
 certain liens superior to the title of purchasers, without notice, out of the state. 
 Statutory liens on steamboats and other vessels. Wiqhtman v. Tlie Geo Alhree 
 O. S. iv. 119. ' ' 
 
 COMITY OF STATES. 
 
 1. National comity being a principle of the law of nations, constitutes a part of 
 the civil jurisprudence of every state. Therefore, when the rule is settled by 
 which the right is to be determined, and which would prevail in the courts of 
 this state (Missis.sippi), where the contract was entered into, we ascertain the 
 rule by which, under the jut gentium privatum, the tribunals of a foreign state 
 would be guided in determining the rights of the parties arising out of the contract. 
 Lijon V. Knoll, 0. S. ii. 604. 
 
 2. Hence, though by the laws of Texas, where the wife died childless, her next 
 of kin succeed to her separate property, yet, as by the laws of Mississippi, 
 where the contract of marriage was had in such event, the husband is entitled ; in 
 the conflict upon principles of settled law his rights must prevail. Id. 
 
 3. Where the English Court of Chancery, when refusing to award the eustodv 
 of the minor to the American guardian, decreed that the guai-dian should trans- 
 mit the income of the minor's property to England to be disposed of under the 
 direction of that court. Held, that under the circumstances, there was no good 
 reason for deferring ex comitate to the decision of the foreign tribunal, and 
 permission was therefore refused to the guardian to transmit the funds abroad. 
 In re. Dawson, O. S. iv. 241. 
 
 4. There is no reason why the same degree of comity should not be extended 
 to the judicial action of the Surrogate's Courts in the state of New York, that 
 would be extended to any other tribunal of a foreign country in the exercise of 
 its legitimate jurisdiction. Id. 
 
 COMMERCE. 
 
 1. The ordinance of Congress of August 17S7, under the articles of confedera- 
 tion, for the government of the territory northwest of the Ohio river, is super- 
 seded by the constitution of the United States. Woodman v. Kilhourn Manuf. 
 Co., N. S. vi. 238. 
 
 2 Congress has the constitutional power to prohibit the foreign slave trade. 
 The United Stales v. Boodnax, 0. S. viii. 528. 
 
 COMMERCIAL LAW. 
 
 Is there a general commercial law administered by the courts of the United 
 States irrespective of *e laws of the particular state in which the court is held ? 
 the subject discussed. N. S. xii. 473. 
 
 COMMISSION. 
 
 1. Without seal of the court, is a mere nullity. Ford et al. v. Williams, N. S. ii. 
 249. 
 
 2. Though on application for a commission to a foreign country it should ap- 
 pear that the mode of examining witnesses in that country differ from the course 
 in England, it is not to be supposed that the evidence will be therefore contrary 
 to the law of England, and the commission may be issued. But if on the trial 
 it appear on the face of the deposition, or by intrinsic evidence, that the examina- 
 tion has been conducted illegally, the whole, or so much as is illegal, will be re- 
 jected. Lumlei/ V. Gi/e, O. S. iii. 124. 
 
 COMMISSIONER'S DEED. 
 
 A commissioner's deed, made in pursuance of a decree in partition, vesting in 
 the purchaser all the rights of the plaintiffs " as heirs of their deceased father," 
 wrll not be a sufficient title, or color of title, to support the plea of the Statute of 
 Limitations of the state of Texas of three years, and defeat their right to a re- 
 covery in a suit brought by them as heirs of their deceased mother. Craig et 
 al., Appellants, v. Smallei) et al., Appellees, 0. S. viii. 497. 
 
180 COMMISSION MERCHANT— COMMON CARRIER. 
 
 COMMISSION MERCHANT. 
 
 A usage to control or interpret contracts must be known, certain, uniform, 
 reasonable, and not contrary to law. Mettler Sf Stewart v. Scudder, 0. S. ii. 80. 
 
 COMMISSIONS. 
 
 1. Trustee who has abused his trust is not entitled to commissions, but may be 
 allowed compensation for special services. Moore v. Zobriskie, N. S. vii. 767. 
 
 2. It is not necessary that a binding contract, in writing, should be entered 
 into by the parties before the broker becomes entitled to commissions. Barnard 
 V. Monnot, N. S. vi. 209. 
 
 3. Commissions when due — evidence of usage. See Ware t. Rubhtr Co. , N. 
 S. X. 437. 
 
 4. Twenty per cent, for collection of small book accounts, not unreasonable. 
 Wynlcoop-v. Shardhw, N. S. v. 317. 
 
 5. Where broker was to have ten per cent, on the price for which he sold land, 
 the commissions are to be calculated on the real, not the nominal price. Wake- 
 Jield V. Merrick, N. S. v. 766. 
 
 6. If part of the consideration was other land, valued at a certain price though 
 not worth so much, the value set upon it by the parties is to be taken. Id. 
 
 COMMITMENT. See Habeas Corpus. 
 
 Where tlie defendant in a habeas corpus makes an evasive or false return there- 
 to, he may be committed for a contempt, in order to compel obedience to the 
 writ. United States ex rel. Wheeler y, Williamson, 0. S. iii. 729. 
 
 COMMON. 
 
 The right would be a profit d, pmidre and not an easement, and such a right 
 must as a general, and perhaps universal rule be prescribed for as incident to other 
 lands, for the benefit of or in connection with which the rights are to be exer- 
 cised. Merwin v. Wheeler, N. S. xiv. 601. 
 
 COMMON CARRIER. 
 
 I. Who aee Cakriees. 
 
 1. A railroad company receiving goods at freight house, does so for transpor- 
 tation, and is liabl'b as a common cflrrier. Coi/le v. Railroad Co., N. S. vi. 505, 
 
 2. Telegraphic companies are not, in any just sense, common carriers, and 
 cannot be made liable upon the principle applied to carriers. Camp v. Western 
 Union Tel. Co., 0. S. vi. 443; and on appeal to the Court of Appeals, affirmed. 
 O. S. vi. 734. 
 
 3. What constitutes a. Harris v. lioy, N. S. vi. 504. 
 
 4. The owner of a-tug-boat engaged in towing is not a common carrier. Hays 
 T. Miller, N. S. xi. 370. 
 
 5. Steam towboats or tugs are not common carriers as regards the vessels they 
 have in tow and their cargoes. Brown v. C/egg, N. S. x.. 63. 
 
 6. A railway company is liable as a common carrier, and is an insurer of the 
 goods, not only while the poods are in actual transit over its line of railway, but 
 until an actual delivery of the goods to the next succeeding carrier. Conkey v. 
 M. Sr St. P. Railroad 'Co., N. S. xii. 365. 
 
 7. The owners of a steamboat, employed in towing boats for hire, are not com- 
 mon carriers and hence not insurers. Wooden v. Austin, N. S, viii. 189. 
 
 II. Cakhiees of Passengers. 
 
 8. Responsibility of carriers of passengers. Sawyer v. Railroad Co., N. S. vi. 62. 
 
 9. When liable for refusal to carry passenger back to country from which he 
 had been expelled. Pearson v. Duane, N. S. vi. 631. 
 
 10. Circumstances mitigating the damages in such case. Id. 
 
 III. How EAR Passenoees aee bound by the terms printed on theik 
 Tickets and thk Rules and Regulations op the Public Caekiek, and 
 herein op the degkke op care eequieed in the conveyance op Pas- 
 senoees. 
 
 11. The holder of a railway passenger ticket is only entitled to passage with 
 such personal baggage as he carries with him at the time. Baggage sent by an 
 after train will be at his risk, and not that of the company. Wilson v Railway 
 Co., N. S. viii. 398. , ■ ^ 
 
 12. Of passengers is hound to exercise the very highest degree of care and 
 diligence, and liable for the smallest negligence. 'Taylor v. Grand Trunk Rail- 
 way, N. S. viii. 575. 
 
COMMON CAERIER. 181 
 
 13. A common carrier may make reasonable regulations as to the place where 
 the bagjrage of a passenger shall be depositeil, and if actual notice of the regula- 
 tion is given to him, or it be shown that the regulation had become, by general 
 usage, so notorious and universal that he must ho presumed to have known it, the 
 passenirer violating it cannot recover for loss of his baggage, ilackiin v. Steam- 
 bout, N. S. ix. 239. 
 
 14. PostiTig a printed copy of the regulation in carrier's conveyance or office, 
 does not amount to notice to the passenger. Ho is under no legal obligation to 
 read such notices. Id. 
 
 15. A regulation that would prevent a passenger, who was to spend the night 
 on a boat, from taking to his state-room the baggage necessary for his toilet and 
 for his daily use, wonld not bo reasonable or valid. Id. 
 
 16. A person receiving a printed notice on his ticket or check at the time of 
 delivering his goods to a carrier is to be charged with actual knowledge of the 
 contents of the printed notice. ITopkins v. Westcoit, N. S. vii. ,'533. 
 
 17. The ticket of a passenger includes also ordinary baggage, but not mer- 
 chandise. Smith and wife v. The Boston and Maine 'Railroad, N, S. jii. 127. 
 
 18. Mere acceptance of card or ticket with limitation of liability will not 
 establish a contract on part of passenger. Prentice v. Decker, N. S. vii. 377. 
 
 19. Cannot limit liability by note on card or ticket, unless there is further evi- 
 dence of agreement by other party than the mere acceptance of the card. Lim- 
 burger v. Wtstcott, X. S. vii. 507 ; and see Mann v. Birehard, N. S. vii. 702. 
 
 20. Giving through tickets does not make partners. Ellsworth v. Tartt, 0. S 
 iv. 189. 
 
 21. Liable for injury to passenger by defect of vehicle, though it was not 
 discoverable bv any practicable mode of examination. Alden v. N. Y. Central 
 Railroad Co., 'N. S. iii. 498. 
 
 22. The sale of a ticket to a passenger is a contract to carry such passenger 
 according to their rules and regulations. Coger v. N. W. Union Pacific Railroad, 
 N. S. xiii. 162. 
 
 23. They have no right however to make rules or regulations for their passen- 
 gers, based upon any distinction as to race or color. Id. 
 
 24. A negro woman who purchases a first-class dinner ticket on a Mississippi 
 steamboat is entitled to sit at the same table as the other passengers. Id. 
 
 25. This is a right secured to her by the laws of the state of Iowa, and the 
 Constitution of the United States. Id. 
 
 26. The object of the 14th Amendment to the Constitution of the United 
 States, was to relieve citizens of African descent from the effects of the prejudice 
 theretofore existing against them ; and to protect them in person and property 
 from its spirit. Id. 
 
 27. Common carriers of passengers have the legal right to make reasonable 
 and proper rules and regulations for the conduct and accommodation of all per- 
 sons who travel by their conveyances. /(/. 
 
 28. This rule applies alike to the character of the yehicle, the horses and 
 harness, the skill and sobriety of the driver, his watchfulness, and his conduct 
 under every emergency or difficulty. Derwort v. Loomer, O. S. i. 479. 
 
 29. The contract to carry passengers differs from that to carry freight, only in 
 this, that in the latter case, the carrier is responsible at all events, except for the 
 act of God and the public enemy. Id. 
 
 30. The carrier's contract with his passenger implies, first, that the latter shall 
 obey the former's reasonable regulations ; second, that the carrier shall have his 
 means of transportation complete and in order and his servants competent. Sul- 
 livan v. Philadelphia and Reading Railroad, O. S. vi. 342. 
 
 31. If a passenger be hurt without his own fault, this fact raises a presumption 
 of negligence, and casts the onus on the carrier. Id. 
 
 32. This being a presumption of fact it is for the jury to determine. Id. 
 
 33. It is no answer to an action by a passenger aglainst the carrier, that the 
 injury was caused by the negligence, or even trespass of a third person. The 
 parties are bound by their contract. Id. 
 
 IV. What is Baggaoe, and the Liability op the Cakrier thbrefoe, and 
 
 HEREIN OF THE LIABILITY OF THE CARRIER FOK LoSS OK INJURY XO MER- 
 CHANDISE TAKEN BY PASSENGER AS BaGGAGE. 
 
 34. Not liable for loss of baggage not claimed by traveller in reasonable time 
 after end of journey. Jones v. Trans. Co., N. S. vii. 634. 
 
182 COMMON CARETER. 
 
 35. Seventeen hours held not a reasoaWe time under the circumstances. Jones 
 V. Trans. Co., N. S. vi. 634. 
 
 36. Fact that journey ended on Sunday and the law of the state prohibited 
 work or travelling on that day did not affect the case. Id. 
 
 37. A passenger on a steamboat who carries his valise with him to his state- 
 room, does not thereby undertake the exclusive care of if, so as to release the 
 carrier from all liability in regard to it. Machlin v. Steamboat, N. S. ix. 239. 
 
 38. The placing of his valise in the state-room by a passenger who has paid 
 his fare and received the key of the room, is sufficient delivery to the carrier to 
 charge him for negligence. Id. 
 
 39. A railroad company receiving in cars accompanying its passenger trains, 
 property of a passenger other than his bagage, when no fraud or concealment is 
 practised upon its employees, is liable for the same. Hannibal Railroad v. Smith, 
 i^. S. xi. 126. 
 
 40. Surgical instruments in the case of a surgeon in the army travelling with 
 troops constitute part of his baggage. Jd. 
 
 41. "Where such a notice stated that the carrier would not be responsible "■for 
 an amount exceeding $100 upon any article," the words " any article" mean any 
 separate article, not a trunk with its contents. Hopkins v. Westcott, N. S. vii. 533. 
 
 42. Therefore, a traveller .who gave a single trunk to a carrier and received 
 such a notice, was allowed to recover the value of separate articles in the trunk 
 amounting to $700. Id. 
 
 43. Baggage includes such articles as are usually carried by travellers. Books 
 and even manuscripts may be baggage, according to the circumstances and the 
 business of the traveller. Id. 
 
 44. In this ease a student going to college was allowed to recover the value 
 of manuscripts which were necessary to the pi-osecution of his studies. Id. 
 
 45. Not liable for loss of merchandise brought with him by a passenger as 
 baggage. Caliill v. London, ^c, Railroad Co., N. S. iii. 441. 
 
 46. A railway company, as common carriers of passengers and their baggage, 
 are bound, on the ai'rival of a train at the terminus of the journey, to deliver a 
 passenger's luggage into a carriage to be conveyed from their station, if required 
 so to do, and if such is their usual practice. Affirming Richards v. The London 
 find South Coast Railway Co., Butcher v. The London and South.- ]Vettcrn Railway 
 Co., 0. S. iii. 694. 
 
 47. Therefore, where a passenger on the arrival of the train got out of the rail- 
 way carriage on to the platform with a part of his luggage, a small hand-bag, in 
 his hand, which he gave to one of the company's porters to take to a cab, and 
 the porter lost it, the company were held liable as for non-delivery of the bag ; 
 it not being found by the jury that tTie passenger, by taking the bag into his own 
 possession on the platform, had accepted that as a performance of the company's 
 contract to deliver, according to their usual practice, into a cab. Id. 
 
 48. The delivery of a check to a passenger is intended to relieve him of any 
 care or superintendence of his, baggage, while on its journey, and devolves such 
 care upon the agents'of the several roads over which it passes. Check v. Rail- 
 road Co., 0. S. vii. 427. 
 
 V. The Conveyance of Goods. 
 
 49. It is a clear duty belonging to common carriers of merchandise under their 
 contract, to deliver his goods to the consignee if he presents himself at the proper 
 place and in proper time to receive them, and, in such case, there is no room, 
 nor any occasion for the interposition of a warehouseman, although the carriers 
 make known and regular transit, and have a warehouse and platforms for the de- 
 livery of goods at the end of the transit ; and the carrier is not discharged from 
 liability as a carrier, by placing such goods either on the platform or in the ware- 
 house for delivery. And the consignee is entitled to a fair and reasonable time 
 and opportunity to receive his goods, and until he has had such time and oppor- 
 tunity, the goods remain in the care of the carrier as such. Graves v. H. ^ N. Y. 
 Steamboat Co., N. S. xii. 23. 
 
 50. A general carrier of freight has no right to discriminate in forwarding 
 freight, in favor of one class to the prejudice of others. Keeny v. Grand Trunk 
 Railroad Co., N. S. x. 663. 
 
 51. A common carrier, or other bailee for the transportation of property, must 
 permit the consignee, if he requests it, to examine the cargo at the place of de- 
 livery, before he can demand his freight. Isham v. Gnenham, 0. S. iii. 498. 
 
COMMON CARRIER. 183 
 
 VI. Geneevl Liaijility of Cakkiers. 
 
 52 It nil express cumptiny have a settled and uniform rule that money pack- 
 ages must be sealed and indorsed in a certain manner, and such rule is brought 
 home to the knowledge of the consignor who neglects or intentionally omits to 
 comply with it, and the company, in ignorance of the special value of the pack- 
 age, takes ordinary care of it only, the company will not be liable for its loss. 
 St. John-v. Southern Express Co., N. S. x. 777. 
 
 53. Parties undertaking to tow a boat fram one place to another are bound to 
 do so, unless prevented by causes to which at least gross negligence on their part 
 does not contribute. Wooden v. Austin, N. S. viii. 189 ; and see Worth v. Ed- 
 monds, N. S. viii. 308. 
 
 54. Where a jettison becomes necessary by reason of a storm, the loss is by 
 iict of God, and in order to make the carrier liable, there must be an express 
 agreement to that effect. Price v. Hartshorn, N. S. x. 796. 
 
 55. Kxtent of his common-law responsibility. Express Co. v. Moon, N. S. vi. 
 50-1. 
 
 56. Right of carrier delivering goods to a warehouseman, to reclaim same, 
 when goods never called for. Hamilton v. Nic.ksrsun, N. S. vi. 58. 
 
 57. Destruction of whiskey by a provost-marshal, under the authority of the 
 Confederate States, in 1862, cannot be claimed as the act of a public enemy, by a 
 railroad company situated within the limits'of that government, and recognising 
 its control. Patterson v. N. C. Railroad Co., N. S. ix. 581. 
 
 58. The obligations and liabilities of a common carrier are not dependent upon 
 contract ; they are imposed by the law. Hannibal Railroad v. Swift, N. S. xi. 126. 
 
 59. If a common carrier has reasonable grounds for refusing to receive per- 
 sons and their baggage, he is bound to insist at the time upon such grounds, in 
 order to avoid responsibility. Id. 
 
 60. The liability of a carrier attaches when the property passes with his assent 
 into his possession. Id. 
 
 61. Statutory exemptions in favor of. N. S. iv. 137. 
 
 62. General expressions of exemption from liability do not apply to injuries re- 
 sulting from wrongful acts. Keeiiey v. Grand Trunk Railroad Co., N. S. ix. 662. 
 
 63. When goods in the hands of a common carrier are threatened to be de- 
 stroyed or seized by a public enemy, he is bound to use due diligence to prevent 
 it. Ho'laday v. Kennard, N. S. xi. 126. 
 
 64. In the late civil war the troops of the United States were a "public 
 enemy," against whose act a common carrier did not insure. Southern Express 
 Co. V. Wornack, N. S. X. 194. 
 
 65. The defendants were common carriers of goods and passengers between 
 New York and New London, by steamers. A delivery of a package to them in 
 New York for transportation, marked for a point beyond their route, and the accept- 
 ance of the same, implies an obligation to carry according to the general course 
 and usage of their business ; that is, to the termination of their own route and to 
 deliver to the next carrier in the line of the destination. Converse v. Tran:.- 
 portaiion Co., N. S. vi. 214. 
 
 66. Are liable in two capacities ; one as insurers, and one as warehousemen ; 
 in the former they are liable for any injury unless from the act of God or public 
 enemies, in the latter unless they have exercised due care as warehousemen. 
 Goodwin v. Bait. Sf Ohio liailroad Co., N. S. x. 404. 
 
 67. The shipper is liable for freight, though not the owner of goods. Woostcr 
 T. Tarr, N. S. iv. 183. 
 
 68. Where there was a contract to carry freight at a particular time, proof 
 that its transportation was prevented by an unexpected rush of freight, is inad- 
 missible. Veminij V. Grand Tiunk Railroad, N. S. ix. 509. 
 
 69. The liabilities of common carriers and forwarders, independent of any 
 express stipulation in the contract, are entirely different. Hooper v. WeVs, 
 Fargo Sr Co., N. S. v. 16. 
 
 70. The common carrier who undertakes to carry goods, for hire is an insurer- 
 of the property intrusted to him, and is legally responsible for acts against which 
 he cannot provide, from whatever cause arising, the acts of God and the public, 
 enemy alone excepted. Id. 
 
 71. Bound by law to receive and carry goods, under his common law re- 
 sponsibility. Cannot refuse becaus'e shipper will not assent to a special contract. 
 Express Co. i-. Moon, N. S. vi. 504. 
 
184 COMMON CARRIER. 
 
 72. A carrier of goods or cattle is only bound to carry in a reasonable time 
 under ordinary ciraumstances, and is not bound to use extraordinary etforts or 
 incur extra expense in order to surmount obstructions caused by the act of God, 
 as a fall of snow. Briddon v. The Great Norihent Railroad Co., O. S. vii. 507. 
 
 73. Where carriers by sea had received a cask of brandy to carry, on the terms 
 (inter alia) that they should not be liable for any loss or damage arising from 
 any cause whatever during the transit, it was held, they were not liable as com- 
 mon carriers for an injury to the cask. Phillips v. Edwards, 0- S. vii. 508. 
 
 74. Nor will the custom of stage proprietors and their drivers to load down 
 the vehicle with passengers and freight to its utmost capacity, regardless of tho 
 state of the roads, exonerate them from liabilitv. Derwort et ux. v. Loomer, 0. 
 S. i. 479. 
 
 75. The practice of converting stage-coaches into freight wagons, to transport 
 iron and almost everything else, is an innovation upon the rights of the travelling 
 community, which the court will not sanction or countenance. Id. 
 
 76. Ferrymen must provide proper means for the embarkation and landing of 
 animals carried for hire, and, although animals are in the care of owners, are 
 liable for culpable negligence in allowing an improper ship to be used. Wil- 
 loughby v. Horridge, 0. S. ii. 61. 
 
 77. Shippers are entitled to countermand directions while goods are in transitu, 
 and such countermand is good if left with clerk of carrier, and carrier liable for 
 loss to shipper in not regarding countermand. Scnithorn v. Railroad Co., 0. S. 
 ii. 61. ' 
 
 78. Liability of, for bank bills delivered to him. ICirtland v. Montgomery, 0. 
 S. i. 377. 
 
 79. Ferryman as common carrier is liable for a failure to transport safely. 
 ^','ilson V. Hamilton, O. S. iv. 689. 
 
 80. If owner undertakes the care of the property, carrier is not liable for 
 owner's negligence. Id. 
 
 81. Common carriers of goods, and passenger carriers of baggage, liability of. 
 Subject discussed. N. S. i. 12. 
 
 82. Liability of each where several railroads transport for a through fare or 
 freight. Id. 
 
 83. A railroad company, in making contracts as common carriers, are not re- 
 stricted to the line of transit described in their act of incorporation. Perkins v. 
 Pm'tland, Saco and Portsmouth Railroad Co., 0. S. viii. 734. 
 
 84. And if such a company, in making contracts to carry merchandise to re- 
 mote places, do exceed the authority, express or implied, conferred upon them by 
 their charter, if there is no prohibition, they cannot plead such want of authority 
 against such a contract entered into'by them. Id. 
 
 85. And if they, having knowledge thereof, permit their agents to hold them 
 out to the public as common carriers, to places beyond the line of their own rail- 
 road, they are thereby estopped from denying the authority of such agents to 
 make such contracts. Id. 
 
 86. Goods were delivered to and received by the defendants, who were ware- 
 housemen and common carriers, but not forwarding merchants, with directions 
 "to ship them immediately to S. M. & Co., Philadelphia." The goods were 
 placed in the defendants' warehouse, where a loss took place. There was no 
 evidence of any request on the part of the shipper, or of any necessity or conve- 
 nience of their requiring the goods to be stored. Held, that the defendants were 
 liable as common carriers, from the time of the receipt of the goods. Clarke &• 
 Share v. Needles, O. S. iv. 383. 
 
 87. Telegraph company ; how far they may limit their liabilities. H ann v. 
 W. U. Telegraph Co., N. S. vi. 63 ; and see L4w of Telegraphs discussed, iv. 193, 
 
 88. The owner of goods who deceives the carrier as to their nature and value" 
 cannot hold him liable for their loss. C. ^ A. Railroad Co. v. Shea N S xiv 
 581. , • . 
 
 89. A common carrier can lawfully make a stipulation as to the time in which 
 a claim shall be made for the loss of a package intrusted to him. Express Co 
 V. Caldwell, N. S. xiv. 521. '^ 
 
 90. But?when the owner takes charge of his stock during transportation, neg- 
 ligence must be shown to render the carrier liable. Railroad Co v Hedaer N 
 S. xiii. 145. n > • 
 
COMMON CARRIER. 185 
 
 91. Common cavriers may limit their liability as insurers liy special agreement, 
 but such as:reement cannot he implieil from the publication of notices by the 
 carrier, unless the owner knows of such notices, and expressly assents to the 
 limitation of liability therein contained. I'er Pryor, J. Express Co. v. Caldwell, 
 N. S. xiv. 521. 
 
 92. Carriers of live-stock arc not insurers. !For accidents necessarily incident 
 to the live-stock in transportation, they arc not liable. Louuville Railroad Co. 
 V. Hedger, N. S. xiii. 145. 
 
 93. They are bound nevertheless to extraordinary diligence, such as a prudent 
 and careful man would exercise in the business of stock transportation. Id. 
 
 94. They cannot discharge themselves from tliis liability by any contract with 
 the owner of the live stock. /(/. 
 
 95. The duties of the carrier and consignee are correlative — the one to deliver 
 and the other to pay the freight ; both are mutual acts. Ishum v. Gretnham, 0. 
 S. iii. 498. 
 
 96. Where the carrier demands a larger sum than that v. hich is stipulated by 
 contract, and refuses to deliver the property at the place of its destination until 
 such additional sum is paid, he may be sued in tort (or the conversion. Id. 
 
 97. Where the carrier refuses to receive any sum less than the whole amount 
 he thus claims, and the consignee offers to pay the sum stipulated in the contract, 
 no formal tender of that sum is required .from the consignee; the law in such a 
 case will not ask him to do a vain thing. Id. 
 
 98. Liability as to packed parcels, and to damages for loss of custom in a trade 
 of carrying small parcels. Crouch v. Railroad Co., 0. S. v. 62. ^ 
 
 VII. Responsibility for Acts of theie Servants and Agents. 
 
 99. If, however, the money is stolen or converted by an agent of the companv, 
 the latter will be liable for its value on a count for money had and received, 
 notwithstanding the violation of its rules by the consignor. St. John v. Southern 
 Express Co., N, S. x. 777. 
 
 100. Therefore, in an action against such owner for negligence of his servants 
 bv which the tow was injured, the plaintiff has the burden of proof of negligence. 
 Bai/s V. MUla; N. S. xi. 370. 
 
 101. Plaintiff having given evidence of negligence, defendant cannot rebut it 
 by proving the general good character and skill of his servants. Id. 
 
 102. A master is liable for the negligence of his servants in the course of their 
 employment without regard to their character for care and skill. /(/. 
 
 103. Responsibility for their servants and agents. Note to Hooper v. Wells, 
 Fargo §• Co., N. S. v. 30. 
 
 1 04. When a companv is responsible for neglect or carelessness of co-employee. 
 ff.w'ey V. B. Sr 0. Railroad Co., 0. S. vi. 352. 
 
 105. Carrier nut liable, if the negligence of the conductor, or his want of care 
 and foresight, was not the proximate or remote cause of accident or injury. 
 Suwijer V. Railrond Co., N. S. vi. 63. 
 
 106. Where skill and capacity are required to accomplish an undertaking it 
 Tvonld be negligeiiee not to employ persons having the qualifications. Holladaij 
 V. Kennard, N. S. xi. 126. 
 
 VIII. Effect of Special Contract, and herein what will amount to a 
 Special Contract. 
 
 107. A carrier may by special contract limit his liability except as against his 
 own negligence. Farnhnm v. C. Sp A. Railroad Co:, N. S. vii. 172. 
 
 108. Where a person delivers goods to a carrier and receives a bill of lading 
 expressing that the goods are received for transportation subject to the conditions 
 on the back of the bill, by one of which the carrier's liability is limited to a cer- 
 tain rate per lb., this constitutes a special contract by the parties, and the carrier, 
 in the abseuce of proof of negligence, is only liable at the rate agreed upon. Id. 
 
 109. Goods were received by defendants, a railroad company, under a special 
 contract as set forth in the preceding paragraph, and were safely carried to their 
 wharf at New York, and placed on the wharf ready for delivery, but before the 
 plaintiffs liad notice of their arrival or opportunity to remove them, a fire broke 
 out on board a steamer of the defendants lying at the wharf, which entirely con- 
 sumed the boat, and also the wharf and the goods thereon. Uhcre was no evi- 
 dence as to the origin of the fire. Ildd, that plaintiffs could not recover more 
 than the special rate agreed upon without proving negligence of the defendants. 
 Id, _. . ... 
 
186 COMMON CARRIER. 
 
 110 Mny liy express stipulation limit liability even I'or negligence. Prentice 
 V. Od.ker, is'. S. vii. 377. 
 
 111. Cannot contract against liability for loss from his own ordinary negli- 
 gence. /. P. 4- V. Rmlro-.id-v. A liv, N. S. ix. 442. 
 
 1,12. His right to limit his common law liability by special contract. What is 
 required to make such a contract. Express Co. v. Mooti, N. S.vi. 504. 
 
 113. As to the loss of certain descriptions of articles, unless delivered as such 
 and an increased charge for carriage paid. See Ilearn \. Bailroad Co., 0. S. iii. 
 51)8. 
 
 114. In New Vork common carriers can limit the extent of their liability by 
 contract with the shippers. FibeJ v. Livingston, N. S. xii. 594. 
 
 1 15. A notice at the head of a receipt for freight, is not sufficient to constitute 
 a contract unless it is proved to have been brought to the shipper's knowledge. 
 Jcl. 
 
 116. Condition that' shipper assumes the ri.sk3 of carrying does not relieve 
 carrier from ordinary liability. Fa vey v. N. T. Co., N. S. iii. 379. 
 
 117. Cannot by a general notice exonerate himself entirely from legal liability. 
 ' Judi^on V. Western Railroad Co., N. S. iii. 316. ' 
 
 118. If a common carrier, who undertakes to transport goods, for hire, from 
 one place to another, "and deliver to address," inserts a clause in a receipt 
 signed by him iilonc, and given to the person intrusting him with the goods, 
 stating that the carrier is "not to be responsible, except as forwarder," this re- 
 strictive clause does not exempt the carrier from liability for loss of the goods, 
 occasioned by the carelessness or negligence of the employees on a steamboat 
 owned and controlled by other parties than the carrier, but ordinarily used by 
 him, in his business of carrier, as a means of conveyance. The managers and 
 employees of the steamboat are, in legal contemplation, for the purposes of the 
 transportation of such goods, the managers and employees of the carrier. 
 Hooper \. Wells, N. S. v. 16. 
 
 119. A receipt signed by a common carrier for goods intrusted to him for 
 transportation for hire, ivhich restricts his liability, will not be construed as ex- 
 empting him from liability for loss occasioned by negligence in the agencies he 
 employs, unless the intention to thus exonerate him is expressed in thOj instru- 
 ment in plain and unequivocal terms. Id. 
 
 120. Construction and extent of restrictive clauses in carrier's receipt. Id. 
 Note, .30. 
 
 121. Eestrictions upon the common law liability of a common carrier, for his 
 benefit, inserted in a receipt drawn up by himself and signed by him alone, for 
 goods intrusted to him for transportation, are to be construed most strongly 
 against the common carrier. Id. 
 
 122. Where the receipts, or bill of lading, used by an express company, con- 
 lain limitations upon its responsibility for the transportation of goods or parcels 
 :ommitted to its charge, unless the consignee elects to pay a higher rate to insure 
 s.ife delivery, and this is known to the agent of tlie owner, who fills up the bill 
 of lading at the lower rate of charge, and presents it to the express agent for 
 signature, this will be sufficient evidence to affect the owner with notice of the 
 nature of the limitations upon the responsibility of the carrier, without inquirv 
 whether such agent did in fact know the extent of such limitations. Bank (if 
 Kentticki/ V. Adams' Express Co., N. S. xiv. 30. 
 
 123. Where an express company accepts a parcel for transportation over its 
 line, with an exemption from responsibility for loss by fire, and the same is de- 
 stroyed by fire, by the burning of one of the railway bridges upon the line, it is 
 not material whether such fire occurred through the culpable negligence of the 
 railway comp.iny or not, since, if the owner of the goods know, at the time he 
 accepted the bill of lading, with exemption from responsibility for loss by fire, 
 that the carrier would have to pass over the railway, in the course of the trans- 
 portation, lie cannot hold the carrier responsible for the misconduct of the rail- 
 way company. Id. 
 
 124. Special contract to carry cattle without liability on the part of the railway 
 company in ease of injury to them ; the ticket given by the clerk of the company 
 containing the terms was held to be the only evidence of the contract and the 
 judge erred in leaving it to the jury whether the company were carriers of cattle 
 for hire. Bailroad v. Cri.'p, 0. S. ii. 639. 
 
 125. How far may limit liability by special contract. York Co. v. Railroad 
 Co., N. S. v. 565. 
 
COMMON CARRIER. 187 
 
 126. Where a bill of lading contains the "dangers of navigation excepted," 
 the carrier brings himself within the clause, when he shows that on a dark and 
 stormy night, at the entrance of a harbor difficult of access, he mistook a light 
 on shore in a line with the pier light, for the latter, wherehy the vessel went 
 ashore and damaged u portion of the cargo. Badge'y v. The ISchooner Juniata 
 Paton, O. S. i. 262. 
 
 127. Such special exception to the defendant's liability may be lawfully created 
 by special contract lietween the parties, though it cannot bo made by general 
 notice, known or unknown to the party engaging the services of the common 
 carrier. The case of Jones v. Voorhees, 10 0. S. 145, explained. Davklson \. 
 Graham, 0. S. iii. 291. 
 
 128. Although the common carrier may by special contract restrict his liability 
 so far as be is an insurer against losses by mistake or accident he cannot thus 
 exempt himself from losses caused by any neglect of that degree of diligence 
 pertaining to his peculiar character as bailee. Id. 
 
 129. The purpose of proof, that the loss occurred from one of the excepted 
 causes, rests on the defendant. Id. 
 
 130. Public notice, given by a carrier, that he will not be responsible for 
 freight, or that it is at the risk of the owner, will not vary the carrier's liahility. 
 Derwort and Wife v. Loonier, O. S. i. 479. 
 
 131. Common carriers, the common-law liability of, may be limited by ex- 
 press contract. Insurance Co. v. Chase, 0. S. iii. 44 3. 
 
 132. The owner of the goods may assume the risk. Id, 444. 
 
 133. The responsibility of an express company is the same as that of a carrier, 
 and it cannot exempt itself from liability for loss from negligence, by an excep- 
 tion in a receipt. Belger v. Dinsmore, N. S. viii. 185. 
 
 134. Cannot limit liability so as to excuse want of ordinary care. Mann v. 
 Birchard, N. S. vii. 702 ; and see Limberger v. Westcott, N. S. vii. 507. 
 
 IX. Liability fok Negligence. 
 
 135. A presumption of negligence from the simple occurrence of an accident 
 seldom arises except where the accident proceeds from an act of such a character 
 that, when due care is taken in its performance, no injury ordinarily ensues from 
 it in similar cases, or where it is caused by the mismanagement or misconstruc- 
 tion of a thing over whicli the defendant has immediate control, and for the man- 
 agement or construction of which he is responsible. Western Transportation Co. 
 T. Downer, N. S. x. 360. 
 
 136. Ordinary negligence is sufficient to render common carrier liable, with- 
 out fraud or collusion with the enemy, or wilful negligence. Ilolladaij v. Ken- 
 nard, N. S. xi. 126. 
 
 137. An instruction that "the bill of lading in this ease excepts the defendant 
 from liability from perils of navigation, it is incumbent on the defendant to 
 bring itself within the exception, and it is the duty of the defendant to show that 
 it has not been guilty of negligence," is erroneous. Western Transportation Co. 
 y. Downer, N. S. x.'360. 
 
 138. Such limitations cannot extend to his own negligence. Express Co. v. 
 Moon, N. S. vi. 504. 
 
 139. The accident not being the ordinary or proximate result of the original 
 negligence of the carrier. Held, he was not liable. Morrison v. Davis Sf Co., 
 O. S. i. 436. 
 
 140. Cannot limit liability so as to excuse want of ordinary care. Mann v. 
 Birchard, 0. S. vii. 702. 
 
 141. Burden is on plaintiff to show want of ordinary care, but unusual delay 
 in delivery is primd facie evidence. Id. 
 
 142 The loss or injury of live-stock in the custody or care of the carrier, is 
 primd facie evidence of negligence. Railroad Co. v. Hedger, N. S. xiii. 145. 
 
 143. In a suit against such forwarder for negligence, the burden of proof is 
 on the plaintiff. Inhabitunis, ^c, v. Hall, N. S. xiii. 254. 
 
 144. Carrier cannot exempt himself from responsibility for negligence of him- 
 self or servants. Bailroad Co. v. Lockwood, N. S. xiii. 326. 
 
 145. The rule applies to a drover travelling on u free pass, and looking after 
 his cattle. Id. 
 
 146. Where the action was for injuries to the plaintiff, by the overturning of a 
 stage-coach, in which she was a passenger, resulting from the negligence of tlie 
 ddendant's agent, and from undisputed facts in the case, the court could see that 
 
188 COMMON CARRIER. 
 
 there was culpable negligence in the defendant's agent ; the defence rested, not 
 only upon the absence of such negligence, but a settlement and discharge, by the 
 plaintiffs attorney, whose authority was denied ; and both issues being sub- 
 mitted to the jury upon the evidence, they gave a verdict for the defendant ; it was 
 held, that the jury must have proceeded upon false notions of law. and as, in the 
 opinion of the court, the verdict was against the evidence on both grounds, u 
 new trial was granted. Derwort et ux. v. Loomer, O. S. i. 479. 
 
 147. In such cases, legal negligence is not a pure question of fact for the 
 jury, but is mixed up with principles, so that its determination involves a conclu- 
 sion of law, or more properly, a rule of responsibility, to be applied by the court. 
 In the case of common carriers of passengers, the highest degree of care, which 
 a reasonable man would use, is required by law. Id. 
 
 148. Where a common carrier of merchandise received from a consignor a 
 box, and received therefor a hill of lading in which the name of the consignee 
 alone appeared, and the box, upon tender to the consignee, was refused, and was 
 subsequently stored by the carrier with a regular ^yarehouseman, from whom it 
 was stolen : Held, that this did not constitute negligence on the part of the car- 
 rier, and that he was not liable for the loss. Williams v. Bolland, 0. S. ix. 701. 
 
 X. Delivekt, and herein of the Liability for Non-deliteky. 
 
 149. In special case, carrier may deny title in his bailor or shipper— measure 
 of damages for non-delivery where goods are taken from him. Van Winkle v. 
 United States Mail Steamship Co., N. S. ii. 124. 
 
 150. Undertaking to collect notes is not excused by delivery to an indorser 
 who refused to give them up. Wareham Bank v. Burl, N. S. ii. 558. 
 
 151. May be liable on contract to deliver goods at a certain place, though he 
 can only deliver them at that point through another carrier. Burtis v. Buffalo, 
 Sj-c, Railroad Co., N. S. ii. 184. 
 
 152. The fact that the freight has been paid in an illegal currency, does not 
 affect the liability for loss from negligence. Southern Express Co. v. Womack, 
 N. S. x. 194. 
 
 153. If consignee cannot be found, and the carrier places his goods in the 
 storehouse, his liability as carrier ceases after a reasonable time. Fenner v. 
 Buffalo Railroad, N, S. x. 795. 
 
 154. Are bound to deliver the poods transported by them, and merely placing 
 the goods on their wharf where they cannot be obtained by consignee is not a 
 delivery. Goodwin v. Bait. ^ Ohio Railroad, N. S, x. 404. 
 
 155. After arrival of goods and notice, and the elapsing of a reasonable time, 
 the liability as insurers ceases. Id, 
 
 156. If negligence is proved, common carriers are liable though their duty as 
 such has ended. Id. 
 
 157. Cannot dispute the title of the person delivering the goods for shipment. 
 Wuiliice V. Matthews, N. S. ix. 510. 
 
 158. Is bound to deliver goods within a reasonable time, having reference to 
 his means of carrying. Hales v. London, ^c. Railroad Co., N. S. iii. 441. 
 
 159. In assumpsit against a common carrier, proof of delivery of a smnller 
 quantity of material than that alleged, is no variance. Deming v. Grand Trunk 
 Railroad, N. S. ix. 509. 
 
 160. Consignee is entitled to an opportunity to examine goods before accept- 
 ance, and carrier must afford him such opportunity. Lyons v. //;//, N. S. v. 698. 
 
 161. Delivery of package by express company, must he actual and bond fide, to 
 discharge company. Express Co. v. Haggard, N. S. vi. 121. 
 
 162. Where delivery cannot be made at point of destination, only prudent care 
 of the goods and safe delivery, with notice to owner, will excuse the carrier. 
 The Green, Spc, Co. v. Marshall, N. S. xiv. 581. 
 
 163. Common carriers are bound to deliver freight, consigned to them for 
 transportation, at a place suitable and reasonable for the consignee to receive it; 
 and whether any given place answers this requirement is a question for the jury, 
 under proper instructions from the court. Jaoell v. Grand Trunk Railroad N 
 S. xiv. 358. ' 
 
 164. The rule would be the same if their liability as common carriers had 
 ended, and the goods remained in their possession as warehousemen or deposi- 
 taries. Id. 
 
 165. If the consignee of goods accepts a delivery at a place or in a maijncr 
 different from what a common carrier is liable by law to deliver them, the busi- 
 
COMMON CARKIER. 189 
 
 ness of removing them becomes from that time his business, and the carrier can- 
 not be held liable for the acts or omissions of those employed to do the work. 
 Jewell V. Grand Trunk Railroad, N. S. xiv. 358. 
 
 166. When the duty of a common carrier as to the delivery of freight has 
 ended, no custom or practice of his servant in assisting consignees in moving or 
 loading their goods can affect the principal. Id. 
 
 167. Not liable for lo.ss of baggage, not claimed by traveller in reasonable time 
 after end of journey. Jones v. Trans. Co., N. S. vii. 634. 
 
 168. Seventeen hours, held not a reasonable time under the circumstances. Id. 
 
 169. Fact that journey ended on Sunday and the law of the state prohibited 
 work or travelling on that day did not affect the case. Id. 
 
 170. A common carrier is not estopped from disputing the title of the person 
 from whom he has received goods to carry. It is an answer to trover against 
 the carrier by such person, that the goods have been delivered to the real owner 
 on his claiming them. Sheridan v. T/ie Niw Quay Co., O. S. vii. 507. 
 
 171. Though a carrier, in the absence of evidence of fraud or mistake, is con- 
 cluded by the receipt in his bill of lading as to the quantity or amount of the 
 goods shipped ; yet, in an action for the freight, where the consignee has received 
 the goods at the wharf, without qualification or reservation of the right to inspect, 
 weigh or measure them, and the carrier proves due care of them during the tran- 
 sit, and an actual delivery of all in his possession on his arrival, the burthen of 
 proof is on the consignee to establish that a deficiency in the quantity specified in 
 the bill of lading afterwards discovered, is chargeable to the wrongful act or 
 neglect of the carrier. McCready v. Holmes, O. S. vi. 229. 
 
 172. To constitute a delivery by the master of goods brought in a vessel fromi 
 a port in another state to the port of Boston under the ordinary bill of lading, 
 mere unloading of the goods and landing them on the wharf is not sufficient : 
 there must also be reasonable notice to the consignee, allowing him to make the 
 usual and necessary preparations to receive the goods ; and it is no delivery to 
 unload the goods at an unusual time. Thus, where, by the usage of a port, con- 
 signees are not in the habit of receiving goods on the day of the annual fast, a 
 notice by the master to the consignee that he shall unload goods on that day will 
 not bind the consignee to receive them; and where goods were so unladen, and 
 not accepted or received by consignee, and were, on the same day, destroyed by 
 fire on the wharf. Hdd, that tlie loss must fall upon the carrier. The Salmon 
 Falls Manufacturing Co. v. The Barque Tangier, 0. S. vi. 504. 
 
 1 73. A common carrier or other bailee for the transportation of property must 
 permit the consignee, if he requests it, to examine the cargo at the place of de- 
 livery, before he can demand his freight, liham v. Greenham, 0. S. iii. 498. 
 
 174. A bill of lading was signed by the master of a bark at Belfast acknow- 
 ledging to have received 220 tons of pig iron, to be delivered to the port of New 
 York ; about fifty tons of the iron was lost at New York while the bark was dis- 
 charging her cargo, by the breaking and sinking of the pile wharf or bridge 
 upon which the iron had been improperly placed ; and for tdis loss the bark was 
 libelled in admiralty ; held, that the iron was lost before delivery to the consignees 
 by the carrier, and that by the terms of the bill of lading the bark was liable for 
 such loss. Vose v. Allen, O. S. ii. 563. 
 
 175. The liability of a carrier under a bill of lading continues until the mer- 
 chandise is safely delivered to the consignee at the port of discharge, or placed 
 in such a situation there as to be equivalent to a safe delivery, and the carrier 
 is not discharged of the custody of the goods until this is done. Id. 
 
 176. In regard to foreign voyages under a bill of lading in the usual form, the 
 carrier is not bound to make a personal delivery of the merchandise to the con- 
 signee, but it is sufficient if he lands it at the proper wharf, and in the ordinary 
 manner and gives i-easonable notice to the consignee thereof, such landing, with' 
 such notice, is equivalent to a personal delivery. Id. 
 
 177. Liability of, for goods directed to a firm at a certain number and street, 
 continues after the arrival of the goods at the wharf until notice is given to the 
 consignee. Barclay v. Clyde, O. S. v. 312. 
 
 17B. Delivery of the goods must be proved in order to charge a common car- 
 rier for their loss. It is a fact for the jury to determine, and if there is any evi- 
 dence of delivery, the case will go to the jury on that fact. Dibble v. Brown, 0. 
 S. ii. 317. 
 
 179. A party is admissible to prove the contents of a trunk, when no other 
 
190 COMMON CARRIER. 
 
 evidence is attainable, upon the policy in favarem juslita springing out of the ne- 
 cessity of the case and the nature of the subject. Dibble v. Brown, O. S. ii. 317. 
 
 180. Merchandise transported for sale, large sums of money and samples of 
 merchandise are not comprehended in the word baggage. Id. 
 
 181. By baggage, is understood such articles of necessity, or personal conve- 
 nience, as are usually carried by passengers for their own personal use. What 
 articles are thus included is a question to be left to the jury, under the instruc- 
 tion of the court, upon a consideration of the condition in life of the traveller, 
 Ms habits, vocation and tastes, the length of his journey, and whether he travels 
 alone or with his family, and of the usage of the time and place, and all the cir- 
 cumstances of the case. Id. 
 
 XI Effect op Change of Route. 
 
 182. A carrier, finding, on his arrival at the end of his portion of the route, 
 that an unusual press of business there would prevent his delivery of his freight 
 for several days, is not thereby justified in taking the goods to aiiother place and 
 forwarding them from there to the consignees. Strong v. Carrington et al., N. 
 S. ii. 287. 
 
 183. Demurrage at the first stopping-place not allowed. Id. 
 
 184. Though the charter-party is ordinarily the controlling evidence of the 
 contract as to everything clearly expressed therein, and bills of lading are 
 often regarded as little more than evidence of the sliipping and receipt of the 
 cargo, yet, where the charter-party is not proved, or where it makes no provision 
 in regard to the consignee or mode of delivery, the iiills of lading become the 
 proper and controlling evidence, in whole or in part, of the contract. Id. 
 
 185. Freight is usually payable when it has been fully earned by the safe car- 
 riage and right delivery of the cargo. Id. 
 
 XII. Connecting Cakkieks and the kespective Rights and Liabilities 
 
 OF EACH. 
 
 186. Where a party contracts for transportation over a route composed of 
 several railroads, tor which he pays an entire sum, and receives a through ticket 
 or receipt, the contract is entire, and not of several distinct liabilities. .If no 
 partnership, in fact, exists between the roads, he may treat the contract as en- 
 tire or several, so far as the other parties are concerned. Check v. The Little 
 Miami Railroad Co., 0. S. vii. 427. 
 
 187. By the appointment of a common agent to receive the entire considera- 
 tion, and issue through tickets and checks, which they recognise and assume, the 
 several companies are made aware that the contract is treated by the passengers 
 as entire, and not several. Id. 
 
 188. If the agent, at the starting point, fails to disclose his principals, and to 
 contract on their behalf, whether jointly or severally, he, or the company repre- 
 sented by him, may be treated as sole principals, but if the contract be, in fact, 
 entire and he is, in fact, dealing for others, who receive the benefits of the con- 
 tractj the other contracting party may look to the real principals, and subject all 
 who are interested in the joint contract. Id. 
 
 189. Where goods were delivered to one company in a connected line of trans- 
 portation, dividing the freight according to their respective services, and were 
 described in the bill of lading, as received by the company to whom delivered 
 and to be transported throughout the line, that company was held responsible for 
 any damage occurring upon any portion of the line, on the ground of an implied 
 contract to deliver safely at the end of the route. Morse v. Brainerd, N. S. viii. 
 604. 
 
 190. A contract between two lines of transportation, as to the rate of division 
 between them, of through freight, and which does not create a joint interest either 
 in the profits or the management of the business on the two lines, does not make 
 the first line responsible for transportation across both lines merely because it 
 accepts for transportation a package directed to a point upon the second line. 
 Converse v. Transportation Co., N. S.vi. 214, 
 
 191. Where a railway company and a transportation company use a wharf as 
 'a joint depot .or station-house for freight, and each delivers freight for the other's 
 line upon a platform at particular points clearly defined and well understood, 
 cither company having transported freight across its own line, and deposited it 
 in the place agreed for its reception by the other, must be regarded as having 
 completed its duty of transportation and delivery to the next carrier in the line. 
 Id. 
 
COMMON CARRIER. 191 
 
 192. Liability of last connecting railroad for injury to goods before it received 
 them. Darling v. Riil.ronrl Co., N, S. vi. 58. 
 
 193. The liability of first common carrier continues until actual delivery to 
 the next carrier. Fenner v. Rii'roud Co., N. S. vi. 63. 
 
 194. May be liable as forwarding agent only beyond his own route. N. Rail- 
 road Co. V. Fitchhurg Railroad Co., N. S. iii. 250; Briggs v. Boston, ^c. Rail- 
 road Co., N. S. iii. 2.)0. 
 
 195. Where the owner of goods delivers them to a carrier for transportation 
 through a number of separate but connecting lines, it is the general custom for 
 each carrier to pay the back charges for freight, and the last carrier has a lien on 
 the goods for the whole. SchneidLr v. Evans, N. S. ix. 536. 
 
 196. The first carrier guaranteed that tlie whole freight should not exceed a 
 stipulated sum. The second carrier paid the charges of the first in full, and jit 
 the end of the route a lien was claimed for the whole freight, though it exceeded 
 the guaranteed amount. Held, that though the shipper would be entitled to re- 
 cover back the excess from the first carrier, yet the second carrier having paid 
 the charge in the usual course of business and in ignorance of the guaranty, ac- 
 quired a valid lien for the amount paid, and such lien passed to the subsequent 
 carriers. Id. 
 
 197. The consignee of goods carried by railroad, if present on their arrival, 
 must remove them without unreasonable delay ; if he is not present, the carrier 
 must notify him. Fenner v. Buffalo Railroad, N. S. iv. 795. 
 
 198. A common carrier will not be liable for the loss of goods occurring beyond 
 the termination of his route, where the receipt contains an express agreement 
 that that company should be held answerable for the goods in whose actual 
 custody they were when a loss happens. Ricketts v. B. ^ 0. Railroad Co., N. 
 S. xi. 192. 
 
 199. Payment of charges due previous carriers — when lien exists, and the 
 measure of it. Travis et al. v. Thompwn, N. S. ii. 246. 
 
 200. Eights and duties of intermediate consignee. Davis v. Pattison, N. S. 
 ii. 184. 
 
 201. Plaintiff delivered a package marked to a consignee in New'York, to 
 defendant.s, an express company in Mobile, paid the freight for the entire dis- 
 tance, and took a receipt stating " that this company is to forward the same to 
 its agent nearest or most convenient to destination only, and then to deliver the 
 same to other parties, they to complete the transportation ; such delivery to 
 terminate all liability of this company for such package." The company's 
 route extended only to Lynchburg, but it had an arrangement with the Adams Ex- 
 press Company to transport such packages to any point on the Intter's route, and 
 receive a pro raid share of the freight. Held, that the Adams Express Company 
 was the agent of defendants within the terms of the receipt, and defendants were 
 liable for failure to deliver in New York. St. John v. Southeri Express Co., N. 
 S. X. 777. 
 
 202. The reception by an express company of a package for transportation 
 directed to a point beyond its route, and the receipt of the entire compensation 
 for the transportation to that point, is sufScient to make out a primd facie case 
 of contract to carry and deliver the package to that point. Id. 
 
 203. Where several common carriers are associated in a continuous line of 
 transportation, and, in the course of the business, goods are carried through tlio 
 connected line for one price under an agreement by which the freight-money is 
 divided among the associated carriers, in proportions fixed hy the agreement ; 
 if the carrier at one end of the line receives goods to be transported through 
 marked for a consignee at the other end of the line, and on delivery of the goods 
 takes pay for transportation through, the carrier, who so receives the goods, is 
 
 > bound to carry them, or see that they are carried, to their final destination, and 
 is liable for an accidental loss happening in any part of the connected line. 
 Lock Co. V. Railroad Co., N. S. x. 244. 
 
 204. If the succeeding carrier should refuse to accept delivery of the goods, 
 or in case of a break or interruption in the line of transit, as by storm, flood or 
 earthquake, or by fact of war, rendering it impossible to semi the goods forward, 
 or causing considerable delay in the transportation, the carrier might relieve 
 itself of its strict liability as a common carrier by storing the goods and notify- 
 ing the owner or consignor thereof. Conketj v. Rni'rond Co., N. S. xii. 365. 
 
 205. The case of Wood v. Railway Company, 27 Wis. 541, overruled. Id. 
 
192 COMMON CARRIER. 
 
 206. Where goods nre delivered to a transportntion company to be transported 
 over a continuous line of several railroads, an intermediate company is liablelbf 
 a loss happening upon its part of the line. Barter 4r Co. r. Wheeler, N. S. x. 
 195. 
 
 207. Where a contract is made in one state to transport goods over a line ex- 
 tending through t^vo or more-states, the parties will be governed by the laws of 
 the state where the loss happens. Id. 
 
 208. When a contract is made iij one state to transport goods into another ; if 
 the goods are lost the rights of the parties are governed by the laws of the state 
 where the loss happens. Gray v. Jackson, N. S. xii. 53. 
 
 '; 209. A contract between two common carriers, having connecting lines and 
 running privileges over each other's routes, by which a certain kind of business 
 
 ' is to be performed solely by one of them, will not be enforced in equity by in- 
 junction, or in any manner which will prevent either carrier from performing its 
 duties to the public. P. 4r R- I- Railroad Co. v. Mining Co., N. S. xii. 277. 
 
 210. A railroad company and a coal company, both being carriers of freight, 
 with connecting lines, made ^n agreement that the coal company should carry 
 all the coal between t^yo certain points, and perform all the public duties incum- 
 bent en the railroad company, in reference to the carriage of coal ; and that if 
 any coal should be carried by the railroad company, the latter should pay the 
 coal company fifty cents per ton for such carriage, and the right of the railroad 
 company to use certain parts of the road and bridges of the coal company should 
 cease and bo suspended while such payments should be in arrear. Held, that 
 whether such agreement was binding or not on the parties, a court of equity 
 would not enforce it by injunction, so as to interfere with the public right to de- 
 mand carriage of coal by either party. Id. 
 
 211. Carriers not liable on receipt for a bill of goods "for collection," beyond 
 their route, without a. special contract. Lowell Co. v. Sargent, N. S. iv, 183. 
 
 212. Where a railroad company receipts for goods to be transported beyond 
 its terminus it will be liable for the default of the other carriers on the line. 
 King V. Macon and Western Railroad, N. S. xi. 720. 
 
 213. If there were several connecting carriers, proof as to condition when 
 delivered to the first is sufScient. Lowell Co. v, Sargent, N. S. iv. 183. 
 
 214. One transportation company, receiving freight from another, is entitled 
 \ to the benefit of all stipulations affecting its liability made by the latter with the 
 
 owner. Manhattan Oil Co. v. Camden and Amhoy Railroad, N. S. viii. 309. 
 
 215. A carrier who reships freight at an intermediate port, will bo liable to the 
 owner, if the second carrier does not find the consignee, and after returning it, 
 it is destroyed by fire. The Green, §-c., Co. v. Marihall, N. S. xii. 581. 
 
 216. A carrier receiving goods to deliver to a connecting express, becomes a 
 forwarder as soon as the goods arrive at the end of his route, and his liability as 
 carrier ceases. Inhabitants of No. 4 Plantation v. Hall et al. N. S. xiii. 254. 
 III. Carriers by Water. 
 
 217. How far ferry company is bound to furnish safe and convenient means 
 of passage, and improved methods at greater expense. Barron v. Ferry Co.. N. 
 S. vi. 61. ■' 
 
 218. A steamboat towing three loaded barges down the Mississippi river, in 
 approaching bridge piers too closely to back or stop, the tow is driven against a 
 pier by a sudden and unanticipated gust of wind : the carrier is not liable for loss 
 or injury of the cargo of one of the barges. Insurance Co. v. Steamboat Lady 
 Pike, N. S. viii. 6U. 
 
 219. Carriers by water, subject discussed. N. S. viii. 641. 
 
 220. Will not be liable for breach of contract to tow a vessel, where he was 
 prevented by the freezing of the river, that being an act of God. Wmth v. Ed- 
 monds, N. S. viii. 308. And see Wooden v. Austin, N. S. viii. 189. 
 
 221. The terms " dangers of lake navigation " include all the'ordinary perils 
 which attend navigation on the lakes, and among others, that vvhich arises from 
 shallowness of the waters at the entrance of harbors. Western Transportation 
 Co. v. Dmoner, N, S. x. 360. 
 
 222. The exception of a loss by fire in a bill of lading of common carriers 
 ' by water, does not extend to losses by fire on railroads forming part of the route. 
 
 Barter Sf Co. v. Wheeler, N. S. x. 195. 
 
 223. It is the duty of a carrier of grain in bulk to see that his barge is al- 
 
COMMON CARHIER. 193 
 
 ■ways sufficiently strong to resist all ordinary applications of external force. 
 The. Nort/iern Belle, N. S. ix. 442. 
 
 224. The duty of a carrier by water is not fulfilled by simple transportation 
 from port to port. The goods must be landed and the consignee notified of their 
 arrival. Owners of The Mary Washington v. Ayres ei al., N. S. i". 692. 
 
 225. Where goods were landed from a vessel and stored in the carrier's store- 
 house until the consignee should call for them, but no notice of their ai'rival was 
 given him, proof that such was the carrier's general custom will not relieve him 
 from liability for damage to the goods after such storage, unless there is proof 
 of agreement by the owners to such arrangement. Id. 
 
 226. Duties of, as to delivery. Sholes v. Ackerlaud, 0. S. iii. 636. 
 
 227. Coasting vessels, on landing goods, should give notice, &e. Id. 
 
 228. Where an action was brought for the non-delivei'y of certain goods in- 
 trusted to the owners of the propeller Spaulding, which were put on board at 
 Bufi'alo, to be transported to Detroit, and which were accidentally burned with- 
 out negligence, it was held that, inasmuch as the loss occurred on a lake vessel, 
 engaged in commerce within the jurisdiction of Congress, the owners of the 
 propeller were exonerated from liability under the Act of March 8th 1851, passed 
 to limit the liability of ship-owners. The American Transportation Co. v. Moore, 
 O. S. vii. 15. 
 
 229. A limitation alleged by a carrier as one of the terms of his contract, is 
 a question of fact, and must be shown afiirmatively before a jury. Id, 
 
 2.30. Fire occurring on the wharf, after goods are landed, is not within the 
 exception of damages of the seas, in the ordinary bill of lading. The Barque 
 Tangier, 0. S. vi. 504. 
 
 231. Nor is such a fire within the Act of Congress of March 3d 1851, relieving 
 ship-owners from liability for damage by fire to goods on board of vessel, in cer- 
 tain cases. Id. 
 
 232. Where A. makes a contract in the form of a bill of lading in which B., 
 the ship-owner, undertakes to send forward A.'s goods by a particular ship at a 
 particular time, the shipper is entitled to have the very contract made fulfilled, 
 and if B., the ship-owner, substitutes another ship instead of the one stipulated 
 for, he has substituted different risks, and will be held as an insurer against all 
 loss from whatsoever cause. Bazin y. The Liverpool ^ Philadelphia Steamship 
 Co., 0. S. V. 459. 
 
 233. A master may enter a harbor on a dart night, with a heavy sea and a 
 high wind, though the access be difficult, but not unusually dangerous, without 
 incurring the imputation of negligence. Badgely v. The Schooner Juniata Paion, 
 O. S. i. 262. 
 
 234. Where a ship-owner undertakes the conveyance of goods, but is prevented 
 by the perils of the sea from delivering them, he can recover from the shipper 
 neither full freight nor freight pro rata itineris, unless the cargo be received on 
 the part of the shippers at an intermediate port, when partial freight is due on an 
 
 ' implied new contract. Richardson v. Young, N. S. i. 62. 
 
 235. Liability of ferryman. — A., lessee of a ferry, received on board of his 
 ferryboat a mare of B.'s, who kept charge of her on board ; slips for landing 
 were provided by the owner of the ferry ; one of these had a damaged hand-rail, 
 known to the ferryman, which injured the mare. Held, that the ferryman was 
 bound to provide the means of landing ; and, having negligently provided a slip 
 with a broken hand-rail, by reason of which the mare was injured, he was liable 
 for the loss. Horridge v. Willoughby, 0. S. i. 307. 
 
 XIV. Lien and Remuneration of Cakbiees, and of their Liability fob 
 CARRYING- Articles whose Transportation is forbidden by Law, and 
 herein of the bight op Carrier to action againsi' Shipper of Explosive 
 and other Deleterious Articles, without first notifying Carrier. 
 
 236. An action may be maintained by a common carrier against a person 
 knowingly sending by such carrier explosive and dangerous articles, recently 
 discovered and manufactured, not known to the carrier to he such and without 
 notice of their character, for any damages caused by the explosion thereof from 
 their inherent t«ndency to explode or improper packing. B. Sf A. Railroad v. 
 Shanly, N. S. xii. 500. 
 
 237. But not against a person who merely orders the same to be so sent as a 
 purchaser, although he gives no such notice. Id. 
 
 238. If two persons, without any concert or knowledge of each other's acts, so 
 13 
 
194 COMMON CAREIER. 
 
 send two such articles, one of which causes the explosion of the other, an action 
 may be maintained against them jointly. B. ^ A. Railroad v. Shanly, N. S. xii. 
 500. 
 
 239. A third person, whose property near the railroad is injured by the expio- . 
 sion, may also maintain such action. Id. 
 
 240. If the action is brought in the name of the third person for the benefit of 
 the carrier as assignee, this is no ground for demurrer. Id. 
 
 241. Liable for carrying articles whose transportation is by law forbidden, 
 and this whether the carrier knew the character of the articles carried or not. 
 See 0. S. i. 55, and cases there cited. 
 
 242. A consignment wag to D. B., or his assigns, "he or they paying the 
 freight for the said coal," to which was added in the margin of the bill of lading, 
 
 " "freight payable to P. D. Thomas." Through the failure of the assigns of D. 
 B. the freight was lost. The consignee stood ready to pay it on delivery, and 
 would have paid it to the master, but for the said order of the owner of the 
 vessel, who was not present to receive the amount on the delivery of the cargo. 
 In an action for the freight by the owner of the ship against the shipper, it was 
 hdd he could not recover. Thomas v. Snyder, O. S. ix. 698. 
 
 243. There is an implied duty on the part of a shipper of dangerous articles to 
 notify the carrier. Barney v. Burnstcnbinder, N. S. xii. 599. 
 
 244. Failure to do so will render him liable for the consequences. Id. 
 
 245. A carrier having a lien on goods for freight, &c., cannot sell the goods 
 to enforce his lien. Measure of damages where he does. Briggs v. Boston, Sfc, 
 Railroad Co., N. S. iii. 250. 
 
 XV. Action aoainst Carriek, and herein op the Onus or Proof. 
 
 24fi. Replevin will not lie against common carrier for detention of goods 
 coming lawfully into his possession. Woodward v. Railway Co., N. S. vi. 384. 
 
 247. Showing that a loss was by some vis major, as a flood, is excused without 
 affirmative proof that he was guilty of no negligence. Reading Railroad Co. v. 
 Reeves, N. S. x. 63. 
 
 248. To avoid liability in such case the company must show a specific con- 
 tract to carry only to its own terminus, or a settled and uniform rule not to 
 assume liability beyond that point, which rule must be brought home to the con- 
 signee either by express notice or by a notoriety so general that he may fairly be 
 presumed to have had notice. St. John v. Southern Express Co., N. S. x. 777. 
 
 249. Person suing for damage to goods must show that they were in good 
 condition when delivered to the carrier. Smith v. Railroad Co., N. S. iv. 763. 
 
 250. Burden is on plaintiff to show want of ordinary care, but unusual delay 
 in delivery is primd facie evidence. Man v. Bircherd, N. S. vii. 702. 
 
 251. In an action against a carrier for injury to goods, an instruction that 
 " if the jury believe from the evidence that the loss of the coffee in controversy 
 was within one of the exceptions contained in the bill of lading ; that is to say, 
 if it was occasioned by perils of navigation of the lakes and rivers, then the 
 burden of showing that this loss might have been avoided by the exercise of 
 proper care and skill is upon the plaintiff; then it is for him to show that the loss 
 ■was the result of negligence," was a correct statement of the law, and should 
 have been given. Western Transportation Co. v. Downer, N. S. x. 360. 
 
 252. Where the carrier has given evidence from which the jury may infer that 
 ihe injury occurred from a cause excepted in the bill of lading, the burden is 
 cast on the plaintiff to show negligenee. Id. 
 
 253. In case of loss, he must show it was occasioned by cause within the ex- 
 ceptions, to escape responsibility. Express Co. v. Moon, N. S. vi. 504. 
 
 254. Where by special contract a railroad company is exempted from liability 
 for damage to live stock, "except such as may arise from gross negligence or 
 .default," the iiuj-den of proof of negligence, in case of loss, is upon the party 
 alleging damage. BaiiJcard v. B. Sf 0. Railroad Co., N. S. xi. 53. 
 
 255. Proof of delays and accidents raises no presumption of negligence on 
 the part of the company. Id. 
 
 256. The .carrier, in order to avail himself of the benefit of this restrictive 
 clause, must hring his case strictly within the words of the exception, and for 
 this purpose the burden of the proof is upon him. Badgely v. The Schooner 
 Juniata Baton, O. S. i. 262. 
 
 257. Although it devolves upon a common carrier to show aSirmatively the 
 terms of any contract which lessens his common-law liability, yet that fact is to 
 be proved like any other, by pertin-eut evidence. If in writing, the writmg 
 
COMMON CARRIER— COMMON LAW. 195 
 
 mnst be shown ; but if by parol, there is no rule which requires diifcrent proof 
 from that which would establish any other contract. The jury must be satisfied, 
 from the evidence, that a certain contract exists, and, if satisfied, that is suffi- 
 cient. American Transportation Co. t. Moore, 0. S. vii. 352. 
 
 258. If goods are taken from a bailee by the authority of law, exercised 
 through regular and valid proceedings, it will bo a defence to an action by the 
 bailor against him. Bliven ct al. v. The Hudson River Railroad Co., N. S. i. 376. 
 
 259. The bailee must assure himself, and show the court that the proceedings 
 arc regular and valid, but he is not bound to litigate for his bailor, or to show that 
 the judgment or decision of the tribunal issuing the process, or seizing the goods, 
 was correct in law or in fact * Id. 
 
 260. This is the rule as to bailees in general ; and it includes the case of com- 
 mon carriers. Id. < 
 
 261. A transportation company, whose charges are unpaid, have a sufficient 
 special property in goods delivered to them to be carried, to enable them to main- 
 tain assumpsit against a sub-earrier, to whom on part of the route they have in- 
 trusted the goods, and in whose hands they have been damaged. Baltimore St. 
 B. Co. V. Atkins, 0. S. ii. 508. 
 
 262. A declaration setting out nothing but a general or ordinary engagement 
 by the defendants as common carriers, is not supported by proof of a contract, 
 containing a special exception of the liability of the defendants for any loss 
 which may arise from " the damage of the river, fire, and unavoidable accident." 
 In such case, the plaintiff must be nonsuited on .the ground of Variance between 
 pleadings and proofs. Davidson v. Graham, 0. S. iii. 291. 
 
 263. Where carriers agree also to insure the goods conveyed by them, there is 
 but one contract in all, and it should be declared on as such. Morrison v. Davis 
 ^ Co., O. S. i. 436. 
 
 XVI. Meascke op Damages. 
 
 264. In action for delay in transporting flour, decline in market value is 
 proper element of damages. Weston v. Bailroad Co., N. S. vii. 440. 
 
 265. Allegation of special damages. Roberts v. Grnham, N. S. vii. 377. 
 
 266. The measure of damages irl an action for failure to transport, where 
 plaintiff could not procure another conveyance, does not apply where such con- 
 veyance might have been obtained. Grund v. Pendergast, N. S. x, 405. 
 
 267. The rule by which damages are to be assessed against a carrier, where 
 the shipper's goods are lost through his ignorance or want of care and skill, is 
 their net value at the port of delivery. The carrier is not liable for any specu- 
 lative or possible profits, which the owner might have antibipated in his peculiar 
 business, Baziny. Steamship Co., O. S. v. 459. 
 
 268. In an action against a carrier to whom goods have been intrusted, for not 
 delivering them according to contract, the measure of damages is the value of 
 the goods at the place of delivery, and at the time when they should have been 
 delivered, with interest from that time. Spring v. Haskell/ N. S. i. 689. 
 
 269: Where goods are delivered to a carrier, and they are not transported ac- 
 cording to his undertaking, but are injured or destroyed, the rule. of damages is 
 the value of the goods at the place to which they were to be carried, less the 
 freight. The Michigan Southern and Northern Railroad Co. v. Caster, 0. S. viii. 
 420. 
 
 270. Quaere, whether a railroad company receiving goods directed to a point 
 beyond the terminus of their route is liable for such damages, as the point to 
 which the goods arc directed. Jd, 
 
 COMMON LAW. 
 
 1. Its origin, history and general principles. N. S. vi. 65. 
 
 2. Its application in determining what are crimes, and nature and degree of 
 punishment. N. S. vi. 321. 
 
 3. Walker's theory of; remarks upon. 0. S. i. 577. 
 
 4. Have they a common-law criminal jurisdiction? N. S. vi. 129. 
 
 5. Where the owners of cattle, horses, &c., which are not of a dangerous char- 
 acter may lawfully permit them to range at large. The Vickshurg and Jackson 
 Railroad Co. v. Patton, O. S. vi. 457. 
 
 6. The legal system administered by the Ecclesiastical Courts in England, is 
 a part of the common law of that country. Le Barron v. Le Barrvn, N. S. ii. 
 212. 
 
196 COMMON LAW— CONDITION. 
 
 7. The powerto grant divorces, for proper cause, has been an acknowledged head 
 of jurisdiction in those courts from the earliest period. Le Barron v. Le Barron, 
 N. S. ii. 212. 
 
 8. The settlement of this country had the effect to make the peneral eommon 
 law of England the law of this also, so far as applicable to the new condition 
 of things. /(/. 
 
 9. Jurisdiction of the subject of granting divorce never having been exercised 
 by the ordinary law courts in England, could not be exercised by the same courts 
 in this country, until jurisdiction was given them by the lej^islature, and, until 
 then, the jurisdiction was in abeyance, or rested in the legislature. Id. 
 
 10. But when jurisdiction of the subject is 'bestowed upon any tribunal, it is 
 to be exercised according to the principles and practice of the English courts 
 having the jurisdiction there, so far as applicable to the altered condition of 
 things here, and not repugnant to the spirit of our constitution and laws : and it 
 is not a mere statutory jurisdiction, where the power of the court is limited 
 wholly to what the statute in terms authorizes. Id. 
 
 11. How far in force in Alabama. Barlow v, Lambert, 0. S. v. 171. 
 
 COMMON KECOVEEY. 
 
 1. Presumption of conveyance or surrender to make a tenant by the precipe. 
 Bichman v. Lippincott, N. S. ii. 54 ; and see 5 Butcher's (N. J.) Reports 44. 
 
 2. To bar an estate tail by a common recovery, it is necessary that the tenant 
 to the precipe should, either at the time the writ issued, or before judgment given, 
 have an estate of freehold in possession, either by right or by wrong, in the lands 
 demanded by the writ. Richman v. Lippincott, 0. S. ix. 369. 
 
 COMMON SCOLD. 
 
 1. No indictment can now be sustained in Pennsylvaniaa gainst a female, as 
 a common scold. Commonwealth v. Hutchinson, 0. S. iii. 113. 
 
 2. A common scold is indictable in I'ennsylvania as a common nuisance. 
 Commonwealth v. Mohn, N. S. vi. 634. 
 
 COMMONWEALTH. 
 
 The Ancient Commonwealth ; historical sketch, N. S. x. 465. 
 
 COMPETENCY OF WITNESSES; subject discussed, N. S. i. 257. 
 
 COMPROMISE. 
 
 1 . The law will permit a compromise of any offence, though made the subject 
 of a criminal prosecution, for which offence the injured party might recover 
 damages in an action, but if the offence is of a public nature, no agreement can 
 be valid that is founded on the consideration of stifling a prosecution for it. 
 Bowen V. Buck, 0. S. v. 420. 
 
 2. Therefore where the plaintiff's agent induced the giving of the note on which 
 this action is brought by representing that a prosecution had been instituted and 
 by agreeing to settle and stop that prosecution, the use made of this alleged pro- 
 position to compel the giving of the note renders the contract void. Id. 
 
 CONDITION. 
 
 1 . How and for whom equity will enforce condition in restraint of building. 
 Clarke v. Martin, N. S. v. 184. 
 
 2. Nature of the duty not to build. Id. 
 
 3. General plan of lots need not be shown. Id. 
 
 4. Release of part of condition — when equity will enforce it in modified form 
 Id. 
 
 5. The burden of proof is on the party entering on land for breach of con- 
 dition, to show that such entry is justifiable. Marble Co. v. Ripley, N. S. x 
 198. 
 
 6. Where a city charter provides, that in opening streets, compensation shall 
 be made by a jury, where no agreement can be made, the attempt to make an 
 agreement is a condition precedent to the other power. Leslie v. St. Louis N. 
 S. X. 602. 
 
 7. Right of reverter, belonging to grantor on condition subsequent, is extin- 
 guished by deed to a third person before entry for breach. Rice -i.- Railroad Co. 
 N. S. vi. 320. ' 
 
 8. Grant of homestead, upon condition of residence thereon. Breach thereof. 
 Huhbiird V. Hubbard, N. S. vi. 566. 
 
CONDITION— CONFEDERATE STATES. 197 
 
 9. Condition in devise. Rules to determine whether a strict condition or not. 
 Stanley v. Colt, N. S. vii, 57. 
 
 10. That the defendant, having built in violation of the condition, after bill 
 filed, the complainant was entitled to a decree of abatemunt without amending 
 his bill. Clark v. Martin, N. S. i. 479. 
 
 H. That, although the clause imposing the restriction was a strict condition in 
 law, yet equity would only inquire into the substantial elements of the agree- 
 ment, and would enforce it for any party for whose benefit it appeared to be in- 
 tended. Id. 
 
 12. Removal of county seat, subject to approval of the people. People v 
 Russell, N. S. vi. 31.5. 
 
 13. No stranger can take advantage of breach of condition in a conveyance. 
 Fonda V. Sage, N. S. vi. 59. 
 
 14. Effect of neglect and verbal refusal to perform condition. Id. 
 
 15. A clause in a deed to a railroad, that it is made upon the " express con- 
 sideration that the company shall build and maintain a depot on it, and that one 
 train, each way, shall stop there every day," .will be construed as a condition. 
 Btanchard v. Detroit Railroad, N. S. xiv. 253. 
 
 16. No one can take advantage of a condition subsequent, but the grantor or 
 his heirs. Schu'enberg v. Harriman, N. S. xiv. 459. 
 
 17. The manner of asserting the condition to restore the estate, depends on 
 the character of the grant. Id. 
 
 CONDONATION. 
 
 1. The subject disenssed. N. S. v. 641. 
 
 2. Cruel tv condoned is not revived bv subsequent desertion. ' Hart v. Hart, 
 O. S. iii. 700. 
 
 CONDUCTOR. 
 
 The conductor of a train of railway cars, but not being under the immediate 
 control and direction of a superior or supervisory agent, is held to ordinary and 
 reasonable care and diligence. Railroad Co. v. Barber, 0. S. vi. 534. 
 
 CONFEDERATE NOTES. 
 
 1. Where suit is brought in North Carolina to enforce a contract payable "in 
 dollars" and made during the war, evidence is admissible to show that Con- 
 federate notes were meant. The Confederate Note Case, N. S. xiii. 706. 
 
 2. Without such proof, the presumption is tiiat lawful currency of the United 
 States was intended. Id. 
 
 3. The understanding of the parties may be shown from the nature of the 
 transaction, and where the bonds of a railroad were issued, payable in from seven 
 to thirteen years, lawful money, and not Confederate notes, will be presumed to 
 have been meant. Id. 
 
 4. The interest on a bond is payable in the same currency as the bond. Id. 
 
 CONFEDERATE STATES. 
 
 1. A statute of Mississippi, enacted that any promissory note or other contract 
 for the payment of money executed in that state between March 1st 1862 and 
 May 1st 1865, shoald he primd facie payable in Confederate notes, unless it ap- 
 peared otherwise on the face of the contract. Mezeik v. McOraw, N. S. x. 790. 
 
 2. The military authorities of the United States had no power, under the Act 
 of July 13th 1861, to license commercial intercourse between the seceding states 
 and the rest of the United States. McKee v. The United States, N. S. ix. 56. 
 
 3. Nor was such trade authorized in March 1864, by regulations prescribed by 
 the Secretary of the Treasury, in pursuance of said act. Id. 
 
 4. The Act of July 2d 1864 did not confer the power on the Secretary of the 
 Treasury to license trading within the lines of the enemy. United States v. 
 Zane, N. S. ix. 121. 
 
 5. The presumption is, that a note given in North Carolina for articles pur- 
 chased at an administrator's sale in March 1864, is payable in Confederate cur- 
 rency. Laws V. Rycroft, N. S. ix. 384. 
 
 6. Proof that at a sale proclamation was made, that " Confederate notes will 
 not be taken," rebuts the presumption made by the ordinance of 1865. Cherry 
 V. Savage, N. S. ix. 384. 
 
 7. The term " in good money after the war" in a hond, may be proved to 
 mean "in money good after the war." Sowers v. Earnharl, N. S. ix. 384. 
 
 8. When the insur.i;ent government of Virginia was dispersed by the superior 
 
198 CONFEDERATE STATES. 
 
 force of the TTnitecl States, the civil authorities did not necessarily cease at once 
 to exist. Woodson v. Fleck, N. S. ix. 435. 
 
 9. They continued in being de facto, charged with the duty of maintaining 
 order until superseded by the regular government. Id. 
 
 10. Thus the common council of Harrisonburg, though elected under the in- 
 surgent government, remained charged with the government of the town, not- 
 withstanding the temporary occupation of the place bv the United States forces. 
 Id. 
 
 11. It might have been superseded, for the government of the United States 
 was not bound to recognise any authority, which originated with the rebel govern- 
 ment ; but it was not superseded. ' Id. 
 
 12. The mayor and common council therefore exercising their authority derived 
 from their election, and not by virtue of a military order, have no right to re- 
 move a suit from the state to a Federal court, when that suit has been biought 
 for an alleged false imprisonment and malirions prosecution thereon, charged to 
 have been committed by them in tlie discharge of their municipal functions. Id. 
 
 13. A prosecution for treason in a so called " court of the Confederate States," 
 for aiding the United States troops, is a nullity. Hickman v. Jones, N. S. ix. 
 443. 
 
 14. Claimants under the Act of March 12th 1863, are not deprived of the 
 benefits of the act because of aid not voluntarily given to the rebellion. United 
 States v. Padelford, N. S. ix. 443. 
 
 15. Voluntarily becoming surety on the bond of a quartermaster in the rebel 
 army, is giving aid and comfort to the rebellion. Id. < 
 
 IB. In ordinary dealing during the war, without design to aid the rebellion, 
 Confederate treasury notes were a sufficient consideration to support a contract. 
 Kingsbury v. Lyon, N. S. ix. 443. 
 
 17. The distinction between such acts of the state authorities, during the recent 
 war, as are valid and such as are not, depends upon whether they were intended 
 to obstruct the policy of the United States in regard to the rebellion or not. 
 Leak v. Commissioners of Richmond, N. S. ix. 444. 
 
 18. A depository of the money of the United States or a public debtor, cannot 
 defend against a suit on his official bond by proving that he paid the money due 
 the United States to one of its creditors, under an order of the Confederate au- 
 thorities, where he shows no force or physical coercion, which compelled obedi- 
 ence to such order. United States v. Keehler, N. S. ix. 510. 
 
 19. The seizure of property is essential to give jurisdiction to the court to de- 
 cree a forfeiture under the Act of July 17th 1862. Pelham v. Base, N. S ix. 
 315. 
 
 20. Executors are not responsible for loss from investment of funds in Confed- 
 erate certificates and treasury notes, where next of kin does not object. Kobb v 
 Taylor, N. S. ix. 576. 
 
 21. A contract, the consideration of which was carrying the mail of the Con- 
 federate States, is against public policy, and cannot be enforced. Clemmons v. 
 Hampton, N. S. ix. 580. 
 
 22. The state is not liable for property seized by officers of the Federal army, 
 until a provisional governor has been appointed by the president. Wallace V' 
 Alford, N. S. ix. 637. 
 
 23. A purchaser at a judicial sale under the judgment of the state court who 
 has paid only in Confederate notes cannot be regarded as a bond fide purchaser 
 who ha? paid. Cuyler v. Ferrill, N. S. viii. 100. 
 
 24. A contract, the consideration of which was Confederate treasury notes, 
 made by citizens residing within the lines of the so-called Confederacy, is legal 
 and valid. Miller v. Gould, N. S. viii. 310. 
 
 25. The so-called Confederate government was not in the proper legal sense a 
 de facto government during the late rebellion. Vhisholm v. Coleman, N. S. viii. 
 693. 
 
 26. A judge of the Circuit Court of Alabama, who entered the service of the 
 Confederate States, forfeited and vacated his office of judge under the state. 
 Id. 
 
 27. The Act of Congress of 1862, ch. 195, does not prevent a party who was 
 in the Confederate army from acquiring property after the close of the war. 
 Thomas v. Hunter, N. S. viii. 699. 
 
 28. The Confederate States, though not a de facto government in the highest 
 sense of that term, were a government of paramount force having actual su- 
 
CONFEDERATE STATES. 199 
 
 premacy within certain tonitorinl limits, and therefore a de facto povernment in 
 such a sense as made civil obedience to their authority the duty of the inhabitants 
 of the territory under their control. Thorlngton v. Hjnith, N. S. viii. 739. 
 
 29. Confederate notes as contracts in themselves are nullities, but they must 
 be regarded as a currency imposed on the citizens of the insurrectionary states 
 by irresistible force, and therefore contracts for payment in such currency, made 
 between the citizens of the Confederacy in the ordinary course of civil business 
 and without direct intent to assist the insurrection, are valid, and will be enforced 
 by the courts of the United States. Id. 
 
 30. Although commercial intercourse between the states in insurrection, and 
 those in occupation of the United States during the late war was unlawful, anil 
 therefore a bill of exchange drawn in Mississippi on a person in New Orleans 
 while the latter was under control of the Federal army was void, yet a capture 
 of such bill by the United States commander did not authorize him to collect and 
 confiscate the monev in the hands of the drawee in New Orleans. Brition v. 
 Butler, N. S. xi. 292. 
 
 31. Whether money voluntarily paid by the drawee under such circumstances 
 can be recovered back, not decided. Id. 
 
 32. An action of assumpsit to recover money so seized, not within the statute 
 of March 3d 1863, limiting actions for arrests or imprisonments under color of 
 authority of the United States, to two years. /:/. 
 
 33. Daring the late war, cotton was treated by both belligerents as quasi con- 
 traband of war, and liable to seizure or destruction. Ford \. Surget, N. S. xi. 
 301. 
 
 34. Acts done by the military authorities of the Confederate States within the 
 legitimate sphere of war, do not render the doers liable to private parties whose 
 property may have been injured thereby. Id. 
 
 35. defendant, under the order of a Confederate provost marshal, burned 
 plaintiff's cotton, both parties being at the time within the lines of a Confederate 
 military district and subject to the Confederate authority. Held, that defendant 
 was not liable for the loss to plaintiff. Id. 
 
 36. A judgment and sale of mortgaged premises within the lines of the Federal 
 array, against one who had been expelled into the Confederacy, is null and must 
 be reversed. Lasere v. Rochereau, N. S. xiii. 334. 
 
 37. Judicial proceedings had in Alabama daring the war are not void. Cope- 
 land, Admr.,v. Wmston, N. S. xiii. 397. 
 
 38. The records of the courts in Alabama during the war are provable in the 
 eame manner as those of the present courts, /d. 
 
 39. A suit prosecuted to judgment during the war against the maker of paper 
 not commercial, is a sufficient compliance with the statute, to fix the liability of 
 the assignor. Id. 
 
 40. Where one, daring the late war, voluntarily left his place of residence 
 within the Union lines, he cannot avoid proceedings against him as absentee, on 
 the ground of his inability to retm-n. Forman v. Scott, N. S. xii. 60. 
 
 41. Where a chizen of Kentucky leaves his home and enters the service of 
 the Confederate States, the presumption is that his sympathy is with the Southern 
 cause, and to rebut this he must show that such absence from home was enforced. 
 Thomas v. Mahone, N. S. xii. 433. 
 
 42. The civil code of Kentucky authorizes the creditors of a citizen who leaves 
 the county of his residence and remains absent thirty days within the Confederate 
 lines, to attach his property and sell the same for payment of their debts. /(/. 
 
 43. The fact that the debtor was a soldier in the Confederate army, would not 
 deprive the court of jurisdiction under the code. Id. 
 
 44. When the premises are used as an encampment by the Federal govern- 
 ment, and notice of the attachment is served on the ofBcer in command, the 
 attachment will be valid. *Id. 
 
 45. A citizen of Maryland is liable to be proceeded against by an order of 
 publication granted by the courts of the state, though he is within the Confederate 
 lines. Dorset/ v. Thompson, N. S. xii. 732. 
 
 46. He will be presumed to have notice from the due publication of the order 
 of court, and the court will have jurisdiction. Id. 
 
 47. Purchasers under an order of the court decreeing a sale of such citizen's 
 real estate, will he protected in their titles. Id. 
 
 48. A promissory note, the consideration of which was a loan of Confederate 
 
200 CONFEDERATE STATES. 
 
 money, is not provable as a claim in bankruptcy against the maker. Matter of 
 Milner, N. S. vii. 371. . 
 
 49. Confederate treasury notes irerc not bills of credit within the prohibition 
 of the Constitution of the United States ; but were illegal, because issued by a 
 pretended and revolutionary government set up within the limits of the United 
 States. Id. 
 
 50. Confederate treasury notes were not an illegal consideration in contracts 
 between citizens of the Confederate States, unless it was the intent of the parries 
 to the contract thereby to aid the rebellion. Phillips v. Hooker, N. S. vii. 40. 
 
 51. Therefore, where one citizen of North Carolina, in 1862, bought a house 
 of another, paid for it in Confederate notes, and went into possession, the con- 
 tract cannot be set aside by a court as founded on an illegal consideration. Jd. 
 
 52. Citizens faithful to the United States who resided in the seceding states 
 daring part of the war, but escaped to the loyal states or neutral countries, lost 
 no rights by temporary residence in the seceding states. The Peterhoff, N. S. 
 vii. 62. 
 
 53. During the late civil war the courts of South Carolina had no jurisdiction 
 over parties residing in Maryland by which their rights could be injuriously 
 affected, although suit was commenced by said parties in the courts of South 
 Carolina before the war, and the proceedings were in regard to land in that state. 
 The jurisdiction, however it attached, was suspended during the war. Livingston 
 V. Jordan, N. S. x. 53. 
 
 54. The stepfather as next friend of two infants filed a petition in chancery in 
 South Carolina, asking a decree to confirm a certain sale of land of the infants, 
 situate in South Carolina. After reference to a commissioner, a decree of con- 
 firmation was made and a deed executed by the commissioner to the purchaser. 
 The stepfather and infants resided in Maryland, and the petition set forth that 
 the stepfather was guardian, but in fact both infants liart «t the time of fihng the 
 petition attained the age at which guardianship ceased in Maryland, and both 
 hecama sui juris by the laws of South Carolina before the decree. Held, that 
 the court of equity had no jurisdiction to make the decree, and no title passed 
 to the purchaser. Id, 
 
 , 55. The rights of parties inside the Confederate lines were not affected bv pro- 
 ceedings to foreclose a mortgage inside the Federal lines during the war. Dean 
 V. Nelson, N. S. x. 69. 
 
 56. Property was not subject to seizure as abandoned under the Act of Con- 
 gress of March 12th 1863, unless the owner was engaged in the rebellion, either 
 in arms or otherwise. Hart v. Reynolds, N. S. x. 191. 
 
 57. Property left in the care of another person under a colorable sale, is not 
 abandoned. Id. 
 
 58. To bring a payment in Confederate currency within the rule as to executed 
 contracts, it is not necessary that the payment be of the entire sum due, nor that 
 it be indorsed as a credit on a note. Cross v. SeUs, N. S. x. 195. 
 
 59. A party who has sold property for Confederate notes cannot refuse to ac- 
 cept them, and bring trover for the property. Williams v. Elkins, N. S. x. 195. 
 
 60. Confederate notes, during the existence of the "Confederate States," pos- 
 sessed suiBcient elements of value to support a contract. Naff v. Crawford, N. 
 S. X. 195. 
 
 61. The judgment, in Thorington v. Smith, 9 Wall 1, holding that the use 
 of Confederate notes by parties who had no illegal purpose, was not unlawful, 
 approved. Sherfyv. Argenbright, N. S. x. 196. 
 
 62. Confederate notes, as a consideration from one in the Confederate lines to 
 one in the loyal states, are not a valid and legal consideration. Conley v. Bur- 
 son, N. S. X. 196. 
 
 63. A power of attorney from one in the loyal states to one in the Confeder- 
 ate, to sell land, was revoked by the war. Id! 
 
 64. A note placed in the hands of an agent for collection, and paid in Con- 
 federate notes, did not release the debtor. Scruggs v. Luster, N. S. x. 196. 
 
 65. Where a debtor transferred' a note payable in Confederate notes, to be 
 credited if paid, otherwise he to stand bound, it was not a contract to pay in 
 Confederate notes. Marshall v. Dodson, N. S. x. 196. 
 
 66. The seizure by a Confederate colonel, within the Confederate lines, of 
 arms, was justifiable under the belligerent rights of the Confederate States. 
 Cummings v. Diggs, K. S. x. 196. 
 
CONFEDERATE STATES. 201 
 
 67. The exclasion of evidence of the official character of the defendant was 
 error. Cuvuiuntis v. Diggs, N, S. x, 196. 
 
 68. In an action of trespass, a plea attempting to justify an act under the 
 helligerent powers of the Confederate States, is defective if it fails to show the 
 defendant was a soldier. Bayless v. Estes, N. S. x. 196. 
 
 69. It is no defence to a note, that it was given for a horse which the seller 
 knew was to be used in the '• rebel service." Gillam v. Loonctj, N. S. x. 197. 
 
 70. A payee taking payment in Confederate notes, being at the time within 
 Confederate lines, but there being no threats or force used by the payor, is not 
 sufficient duress to avoid the payment. Rollings v. Cate, N. S. x. 198. 
 
 71. The voluntary residence of a person withia the Confederate lines during 
 the rebellion, did not, under the Act of July 17th 1862, incapacitate him from 
 making a will ; at any rate, not further than as against the United States. 
 Corbett V. Nutt, N. S. x. 206. 
 
 72. The payee of a note payable in two y«ars in current bankable funds, 
 given during the Confederacy, is entitled after its overthrow to recover in United 
 States currency. Tay!or v. Turley, N. S. a. 472. 
 
 73. Only the life estate is sold where realty i.s seized, confiscated, and sold 
 tinder the Act of Congress of July 17th 1862 ; and the Limitation Law of Febru- 
 ary 20th 1864 of the state of Kansas does not prevent recovery by the rever- 
 sioner. Dewy V. McLain, N, S. x. 472. 
 
 74. Judgments of the courts of Georgia during the war are valid judjjments 
 so far as relates to parties within their jurisdiction. French v. Tumlin, N. S. x. 
 641. 
 
 75. A judgment of a court of Georgia, in November 1861, for the purchase- 
 money of slaves, was a valid judgment when entered, and may be enforced now, 
 Jd. 
 
 76. The provision of the constitution of Georgia, that "no court shall have 
 jurisdiction to enforce any debt the consideration of which was a slave or the 
 hire thereof," so far as it relates to contracts valid when made, is repugnant to 
 the Constitution of the United States, and void. Jd. 
 
 77. A bank incorporated by the state of Georgia in 1854 having become in- 
 solvent, suit was brought by a holder of its notes and judgment recovered at law. 
 The creditor then filed a bill against some of the stockholders for the unpaid 
 balance of their subscriptions. The stockholders set up in defence that the notes 
 on which the judgment was founded were issued by the bank directors to the Con- 
 federate States and in aid of the rebellion, and were therefore void under the 
 constitution of Georgia of 1868, which nullifies all contracts made during the 
 war and in aid thereof, and all notes or other evidences of such contracts. Held, 
 that if such defence existed it should have been made to the action at law, and 
 tlie court of equity could not now go behind the judgment. Marsh v. Burroughs, 
 N. S. X. 718. 
 
 78. But even if such defence were still open, the constitution of Georgia could 
 not impair the obligation of contracts cxisiing at its adoption. Id. 
 
 79. The fact that the constitution of 186.S was revised by Congress tnd certain 
 conditions imposed, before the admission of the state to representation, did not 
 give such constitntion the force, of an Act of Congress. Id. 
 
 80. Whatever may have been the precise status of Georgia after the war, the 
 adoption of the constitution of 1868 h£is been recognised by the political depart- 
 ment of the Federal government as the act of the people of Georgia, and it must 
 therefore be so regarded by the courts. Id. 
 
 81. Taking by Confederate vessel of war was a capture within the warranty 
 of the policy. Mauran v. Insurance Co., N. S. vii. 444. 
 
 82. Validity of contracts based upon Confederate treasury notes. Note to Ex 
 parte Garland, commenting on Aveva v. Robertson, N. S. vi. 291. 
 
 83. The Confederate officer, to eflfect sale under threat, was a mere trespasser. 
 United States v. Lowe, N. S. x. 455. 
 
 84. A notice to a mortgagor, by publication, not a legal notice. Dean v. 
 Nelson, N. S. X. 221. 
 
 85. Administrator held liable for paying over distributive shares to the Con- 
 federate States under protest of sequestration. State v. Richey, N. S. ix. 579. 
 
 86. The civil war affected the entire territory of the states in insurrection. 
 Hamdton v. Di.Un, N. S, xiv. 454. 
 
202 CONFEDERATE STATES. 
 
 87. A clause in a policy of fire insurance, that the insurers shouH not be lia- 
 ble for a loss from gunpowder, applies to a case of a fire originating from the 
 explosion of gunpowder on the premises, Greenwald v. Insurance Co., O. S. vii. 
 282. 
 
 88. A purchaser of cotton from the Confederate States, who knew that the 
 money he paid for it went to sustain the rebellion, cannot in the Court of Claims 
 recover the proceeds, when it has been captured and sold, under the Captured and 
 Aliandoned Property Act. Sprott v. United States, N. S. xir. 43. 
 
 89. The moral turpitude of the transaction forbids that in a court of law he 
 should be permitted to establish his title by proof of such a transaction. Id. 
 
 90. The acts of the states in rebellion, in the ordinary course of administration 
 of law, must be upheld in the interest of civil society, to which such a govern- 
 ment was a necessity. Id. 
 
 91. But the government of the Confederacy had no existence except as an 
 organized treason. Its purpose while it lasted was to overthrow the lawfil };ov- 
 crnment, and its statutes, its decree, its authority can give no validity to any act 
 done in its service or in aid of its purpose. Id. 
 
 92. The states that joined the Confederate government continued notwithstand- 
 ing that act to be states, and tlieir governments, legislatures, courts, officers, &c., 
 when regularly and duly constituted according to their own laws, as in the ease 
 of Alabama, were officers dc jure as well as He facto. Parks v. Coffee, N. S. 
 xiv. 496. 
 
 93. The acts of the several states in their individual capacities, and of their 
 departments of government, executive, judicial and legislative, during the war, 
 so far as they did not impair or tend to impair the supremacy of the national 
 authority or the just rights of citizens under the constitution, were valid and 
 binding. Id, ' ' 
 
 94. The courts of Alabama, during the war, were d, portion of the rightful 
 cle jure government of the state ; and th«ir judgments, decrees and proceeding."!, 
 not in violation of the Constitution and laws of the United States or of any 
 right or obligation arising under them, and not in violation of the consti- 
 tution of Alabama, are valid and must have operation and efiect accordinglv. 
 Id. 
 
 D.'j. No act of the legislature or ordinance of a convention is necessary to such 
 validity. Id. 
 
 96. A judgment in an Alabamacourt in 1861, in a suit between persons within 
 its jurisdiction, and a subsequent sale of land under execution on that judgment, 
 passed a good title to the purchaser. Id. 
 
 97. The president's proclamation prohibiting commercial intercourse between 
 the rebellious and loyal states, did not suspend the operation of statutes author- 
 izing the prosecution of suits against defendants domiciled in the rebellious states. 
 Seymour v. Bailey, N. S. xiv. 585. 
 
 98. A promissory note, the consideration- of which was a loan of Confederate 
 money, is not provable as a claim in bankruptcy against the maker. Matltr of 
 miner, N. S. vii. 371. 
 
 99. Confederate treasury notes were not bills of credit within the prohibition 
 of the Constitution of the United States, hut were illegal, because issued bv a 
 pretended and revolutionary government, set up within the limits of the United 
 States. Id. 
 
 100. Confederate treasury notes were not an illegal consideration in contracts 
 between citizens of the Confederate States, unless it was the intent of the parties 
 to the contract thereby, to aid the rebellion. Philips v. Hooker, N. S. vii. 40. 
 
 101. Therefore, where one citizen of North Carolina, in 1862, bought a house 
 of another, paid for it in Confederate notes, and went into possession, the 
 contract cannot be set aside by a court as founded on an illesal consideration. 
 Id 
 
 102. Citizens faithful to the United States, who resided in the seceding states 
 during part of the war, but escaped to the loyal states or neutral countries, lost 
 no rights by temporary residence in the seceding states. The Pcterhoff N. S 
 vii. 62. J/- • 
 
 103. The late contest between the United States and the Confederate States was 
 a war. Bilgeri/ v. Branch, N. S. viii. 334. 
 
 104. The fact of a principal becoming a rebel, and being within the Confed- 
 
CONFEDEEATE STATES— CONFISCATION. 203 
 
 erate lines, does not necessarily terminate an agency. Fisher v. Knitz, N. S. 
 xi. 773. 
 
 105. The Confederate States never had any existence as a sovereign power. 
 United St(ite.f v. Stai'k^ N. S. xi. 37. 
 
 106. A private soldier of the rebel army may rely upon the belligerent rights 
 conceded to the late so-called Confederacy as a defence in a civil suit for property 
 taken according to the usages of war. Hughes v. Litsey, N. S. v. 148. 
 
 107. Judgment rendered by a tribunal under authority of a rebel state govern- 
 ment, void and execution quashed. FUMns v. Hawkins. N. S. v. 100. 
 
 108. Not a rfe /udo court. Id. 
 
 109. Securities so withheld by the rebel state auditor, their locus being snown, 
 are not lost within the meaning of the Article of the Civil Code of Louisiana 
 requiring that securities lost shall be advertised before a recovery can be had of 
 them. Bank v. New Orleans, N. S. v. 555. 
 
 CONFESSIONS. 
 
 1. Subject discussed. Cosifessions by criminals after conviction. Palmer's 
 Case, 0. S. V. 44. * 
 
 2. When second confession, not made under any inducements, will be admis- 
 sible in evidence, though the first was so made. State v. Carr, N. S. v. 317. 
 
 3. Confession induced by the appliance of hope or fear is not admissible in 
 evidence, but if facts are elicited by such confession they may be given in evi- 
 dence. So where a witness offered to render such assistance to a prisoner charged 
 with murder, as he might desire, and the prisoner requested him to tell his 
 brother to write that letter, and that he, the witness, would then place the letter 
 in the post-oifice at a particular place, and the witness carried the message, ob- 
 tained the letter and instead of placing it in the office delivered it to the prose- 
 cutor, and it was read in evidence, and the fact that the prisoner was deceived by 
 the witness did not render the evidence inadmissible. Gates v. The People, O. 
 S. ii. 671. 
 
 4. A confession of a prisoner should be given in evidence with much caution, 
 and the judge should carefully instruct the jury as to its weight and value. 
 Stale V. McDonnell, 0. S. viii. 609. 
 
 CONFESSIONAL OF THE ROMAN CATHOLIC CHURCH. Communications 
 to priest in confessional are privileged. Commonwealth v, Cronin, 0. S. iv. 
 465. 
 
 CONFISCATION. 
 
 1. An information in rem under the 5th, Gth and 7th sections of the Confisca- 
 tion Act of July 17th 1862, not being a criminal proceeding, is not fatally de- 
 fective because the allegation as to whose the property is, is in the alternative. 
 Slidell's Land, N. S. xiv. 1 16. 
 
 2. After default, final judgment and condemnation, it will be presumed that 
 the requirements of the statute have been complied with. Id. 
 
 3. An information filed in District Court having all the requisites of a common- 
 law proceeding, will not be converted into an admiralty one, from the fact that 
 it is entitled a libel, and the citation or warrant a monition. Id. 
 
 4. Service of process under the Confiscation Act. Id. 
 
 5. The fact of warrant not being signed by the clerk is unimportant, if sealed 
 with court seal and attested by a judge. Id, 
 
 6. After condemnation property must be presumed to have belonged to a person 
 engaged in the rebellion. Id. 
 
 7. The president's proclamation of amnesty in 1868 did not amount to a repeal 
 of the act. Id. 
 
 8. Liens against real estate sold under the act will not be divested in any event. 
 C'aimx of Mnr-^iard, N. S. xiv. 117. 
 
 9. If the Di<trict Court decree condemnation, and a sale be made, and on 
 error to Circuit Court the decree dismisses the informatian, but confirms the sale 
 and orders money to be paid to the owner, and then on error by the United States 
 to the Supreme Court, the decree of the District Court is affirmed, and that of 
 Circuit Court reversed, the reversal leaves nothing on which a writ of error by 
 the owner can act. The only judgment can bo reversal again. Conrad's Lots, 
 N. S. xiv. 117. 
 
204 CONFLICT OF AUTHORITY— CONFLICT OF LAWS. 
 
 CONFLICT OF AUTHORITY. 
 
 The power of the legislature to declare nuisances. Herman v. State, 0. S. 
 iv. 344. 
 
 CONFLICT OF JURISDICTION. 
 
 1. As between state court and Federal court over vessel. See Wall v. Royal 
 Saxon, 0. S. ii. 324 ; Ward $■ Co. v. Taj/lor, 0. S. ii. 333. 
 
 2. Conflict of jurisdiction — subject discussed. 0. S. ii. 321. 
 
 3. Between the states of New Jersey and New York, over the waters of the 
 Hudson. See State y.Bahcock, N. S. i. 753, 
 
 4. Between state and Federal courts, Carryly. Taylor, 0. S. iii. 395. 
 
 CONFLICT OF LAWS. See Comitt or Courts. 
 
 I. COHTKACTS. 
 
 1. Debt contracted in foreign country is payable there, and in the legal cur- 
 rency of such country. Benners v. Clemens, N. S. viii. 630. 
 
 2. In cases of voluntary transfers of personal property. Note to Guillaudet y. 
 Howell, N. S. vi. 527. ' 
 
 3. As a general rule the title to personal property perfected in one state, ac- 
 cordiiig to the laws of that state, is respected in all other states and countries 
 into which the property may come. The validity of transfers of such property 
 depends in general upon the place of the contract ; sometimes the situs of the 
 property is an important consideration. These general rules are, however, sub- 
 ject to the exception that every state must judge for itself how far ft will give 
 effect to the laws of other states. Ballnrd v. Winter, N. S. xii. 759. 
 
 4. The rule of laW in Connecticut which requires a change of possession to 
 accompany sales and mortgages of personal property, in order to perfect the 
 title as against creditors of the vendor or mortgagor, is not a mere rule of evi- 
 dence, but of positive law. But this rule does not, as such, apply to property 
 located without the jurisdiction of the state, and ought not to be applied to a 
 contract made in good faith in another state, between citizens of that state, ac- 
 cording to the laws of that state, in relation to property there situate, with no 
 purpose of being executed in this state, or of evading its laws. Id. 
 
 5. A contract for the payment of money made and to be. executed in a foreign 
 country, is pavable only in the lawful money of that country. Comstock y. Smith, 
 N. S. x. 600." 
 
 6. The proof of the value of foreign money is such as will enable the jury to 
 express the value of the sum in our money. Id. 
 
 7. An oral contract valid by the laws of the state where made may be enforced 
 in another state in which such contracts are required to be in writing. Allen v. 
 Schuchardt, N. S. i. 13. 
 
 8. A note dated in Massachusetts, and delivered there, though signed in another 
 state, is to be taken as a contract made in Massachusetts. Lawrence v. Bassett, 
 N. S. ii. 557. 
 
 9. Assignment in Rhode Island held to tonvey title to personalty in Massa- 
 chusetts, under the circumstances, though the assignment would be void in 
 Massachusetts. Ilunty. Lathrop, N. S. ii. 381. 
 
 10. In an action on a policy of insurance dated in "Portland, by a resident of # 
 New Hampshire, it was held that the place of contract was Maine, and the laws 
 of that state must govern. Bailey v. Hope Ins. Co., N. S. ix. 122. 
 
 11. Where a bond and warrant are given in one state as collateral security for 
 a bond and mortgage in another state, the amount of interest is to be com- 
 puted according to the law of the latter state. Irvine v. Barret, O. S. ii. 447. 
 
 12. Plaintiff cannot recover, if there is a bar to his procedure in the country 
 where he sues, though his rights are governed by another law. De la Rosa v. 
 I'rieto, N. S. iv. 309. 
 
 13. The statute of the state where the suit is brought is alone applicable to a 
 cause of action accruing in another state. Carson v. Hunter, N. S. x. 64., 
 
 14. Questions of procedure are to be determined by the lex fori. Maclhrlane 
 y. Norris, N. S. iii. 442. ' 
 
 15. Semble, that set-off is matter of procedure. Id. 
 
 16. Lex fori determines the period, although both parties are citizens of another 
 state. Power v. Hathailoay, N. S. iv. 765. 
 
 17. Lex loci governs, though both parties resido.in another state. Goddard v. 
 Sawyer, N. S. iv. 76.'}. 
 
CONFLICT OP LAWS. 205 
 
 18. In an action where the question at issue relates solely to the effect of the 
 transaction at the place where it was entered into the liability of the defendant 
 is to be determined by the lex loci contractus, Scott v. Pilkington, N. S. iii, 442. 
 
 19. Nature and effect of a discharge under a state insolvent law. Note to 
 Baldwin V. Hale, N. S. iii. 469. 
 
 20. Attachment by creditor of an insolvent's property in another state. Dehon 
 V. Foster, N. S. iii. 506. 
 
 21. Horses sold in Virginia and brought into Pennsylvania ; on a question of 
 fraud in the sale, the law of Virginia governs. Born v. Slmvi, 0. S. vi. 236. 
 
 22. That a debt is barred by tlie Statute of Limitations of the state in which 
 it was contracted and of which lioth plaintiff and defendant continue citizens ami 
 residents cannot be pleaded in bar to a suit for that debt in the court of the state 
 of Rhode Island. Crocker v. Areij, O. S. iv. 462. 
 
 23. A contract, though valid in the state where it is made, will not be enforced 
 in New Jersey, if in violation of public law. Watson v. Murray, N. S. xii. 320. 
 
 24. Joint debtor. Part payment by one not in satisfaction of the debt, but for 
 his personal discharge will not be a discharge as to the others. Where such pay- 
 ment is made in another state its effect must be determined by the laws of that 
 state. Winslow v. Brown, N. S. ii. 383. 
 
 25. Indenture valid where executed will be euforced in another state. Petrie 
 V. Voorhees, N. S. vii. 696. 
 
 26. Jurisdiction of bankruptcy court over creditors, proceeding in state courts. 
 Note to Schnep_fs Case, N. S. vii. 206. 
 
 27. Law of state where lands lie, will determine the question of real or per- 
 sonal estate, though owner bo resident of another state. Oberle v. Lerch, N. S. 
 vii. 765. 
 
 28. A draft drawn in one state and accepted in another is to be regarded as a 
 contract made in the state where it is drawn. Tilden v. Blair, N. S. xiv. 522. 
 
 29. A policy of insurance issued by a New Jersey company to a citizen of 
 Virginia, is a contract to be performed in the latter state, and must be governed 
 by its laws. Spratly v. Mutual Ins. Co., N. S. xiv. 188. 
 
 30. A bill of exchange is to be governed by the laws of the state where it is 
 payable. Bright v. Judson, N. S. vi. 436. 
 
 31. In an action against factor for proceeds of sale, interest will be allowed by 
 law of place of sale. Carlwiight v. Greene, N. S. vi. 441. 
 
 32. Law of the place where the contract is to be performed will govern rate. 
 Bank V. Young, N. S. vi. 60. 
 
 33. Parties may lawfully stipulate, if done in good faith and not as cover for 
 usury, for rate of interest in either state where contract is made in one and pay- 
 able in another. Townsend r. Riley, N. S. vi. 251. 
 
 34. The statute affects the remedy only, and belongs to the lex fori, Paine v. 
 Drew, N. S. iii. 381. 
 
 35. Therefore an action may be maintained in one state on a contract which 
 would be barred in the state where it was made. Id. 
 
 36. Conflict between executive and judiciary ; powers of constitutional conven- 
 tion ; quo warranto ; subject discussed. N. S. iv. 705. 
 
 ii. domicil, ettbct of 0\ testamentary acts, and how fak it governs 
 Succession. 
 
 37. In executing a will of personal property, the testator must observe the 
 formalities required by the law of his domicil, and not those of the place where 
 the will is made. The maxim " locus regit actum" has no place in English or 
 American testamentary jurisprudence. This principle is universally trne when 
 the domicil continues to the time of the testator's death. Moultrie v. Hunt, N. 
 S. i. 148. 
 
 38. If the testator, after executing the will, changes his domicil and resides 
 under another jurisdiction at his death, the formalities required by the new dom- 
 icil must have been observed, or the will is void. Id. 
 
 39. A will is an inchoate and provisional transaction until the testator's death, 
 and the law may require, after its execution, new formalities to be complied with. 
 These, as well as other formalities, must have been observed by all testators 
 domiciled in the jurisdiction at the time of their death, without reference to their 
 domicil when the will Avas executed. Id. 
 
 40. In order that the principles of " comity" may be invoked in favor of the 
 wills of testators domiciled elsewhere, they must have resided in another state at 
 
206 CONFLICT OF LAWS. 
 
 the time of their death. The will is then enforced in accordance with the rules 
 of international law applicable to the subject. Moultrie v. Hunt, N. S. i. 148. 
 
 41. An act done in another state, in order to create riphts which our courts 
 ought to enforce on the ground of comity, must be of such a character that, if 
 done in this state in conformity with its laws, it could not be constitutionally 
 impaired by subsequent legislation. Per Denio, J. Id. 
 
 42. H., the alleged testator, made his will of personal estate in South Carolina, 
 where he then resided. He did not, when it was executed, declare to the sub- 
 fcribing witnesses that it was his last will and testament. This declaration was 
 not necessary by the law of that state, and it was conceded that the will was at 
 the time properly executed for South Carolina purposes. After making his will 
 he removed to New York, where ho resided at the time of his death. In this 
 state such a declaration is necessary. He died without republishing his will. 
 Held, that the will was void, and that H. died intestate. Id. 
 
 43. The law of the continent of Europe is not to be resorted to in determining 
 a question of this kind, until the sources of instruction, furnished by the courts 
 and jurists of England and of this country, have been exhausted. Id. 
 
 44. Judgments in England will give no priority against assets in England be- 
 longing to a testator dying domiciled abroad ; and effect can only be given to 
 them with reference to the law of the domicil. Wilson v. Lady Dunsuny, 0. S. 
 iii. 124. 
 
 45. A probate of a will in Louisiana, of a person domiciled in New York at 
 the time of his death, is valid until set aside in Louisiana. Foulke v. Zimmerman, 
 N. S. xii. 120. 
 
 46. A purchaser from a devisee of such will, of real estate in Louisiana, while 
 the probate remains in force, is an innocent purchaser, and i| not affected by a 
 subsequent order setting aside the will. Id. 
 
 47. Even where the order is founded on the judgment of a court of New York, 
 declaring the will void. Id. 
 
 48. The inheritance, whether testamentary or from intestacy of n foreigner, 
 and especially of an American of the United States, not domiciled in France, 
 must be regulated as to personal property existing in France, without excepting 
 the loans of the state by the law of the country where the foreigner's domicil 
 was, and where, consequently, his inheritance was unobstructed. Succession of 
 Gourii, N. S. i. 424. 
 
 49. This rule, founded upon the maxim mobilia sequuntur personam, has no ex- 
 ception, except where Frenchmen interested as heirs in the inheritance of a for- 
 eigner, have to defend themselves as to property existing in France against dis- 
 positions or statutes contrary to some one of the essential and fundamental rights 
 rendered sacred by French legislation, such as the legal reservation, the pro- 
 hibition of substitutions, &c. ; in which case the right of deduction created by 
 Article 2 of the law of July 14th 1819, is open to them. Id. 
 
 .50. Especially: The widow of a citizen of the state of Pennsylvania, married 
 agreeably to the law of that state, which is also that of the inheritance, and en- 
 dowed, by virtue of its matrimonial law, with one-half of all the personal pro- 
 perty of her husband, has a right to demand in France in opposition to a French 
 universal legatee, the transfer, by virtue of this title, of the one-half of a rente 
 inscribed upon the great book of the public debt. (Treaty of Keciprocity be- 
 tween France and the United States of September 15th 1853.) Id. 
 
 51. The assets of a non-resident intestate are applied according to the laws of 
 the state where situated, and not according to the laws of his domicil. Carson 
 V, Gates, N. S. ix. 385. 
 
 52. Where administration is taken out in another state from that in which the 
 decedent was domiciled, the assets are subservient to the rights of domestic 
 claimants, and the local administration account must be settled before trans- 
 mission of tlie funds to the principal or primary administrator. Dent's Appeal, 
 O. S. ii. 446. 
 
 53. Where the domicil of testator ana all his personal property are in New 
 York, the executors cannot be allowed expenses of proving will in another state 
 where the testator had real estate only. Young v. Brush, N. S. ii. 632. 
 
 54. The distribution of the personal estate in such case is to be according to 
 the laws of New York. Id. 
 
CONFLICT OP LAWS— CONSENT. 207 
 
 III. Validity of Blakk Teansfeks of Stock — Govekned by Law op State 
 
 WHEKE TO TAKE EfKECT- 
 
 55. Written transfers of stock governed by law where to take effect. Bank v. 
 Railroad Co., N. S. i. 210. ' 
 
 IV. Marriage and Divorce. 
 
 56. Conflict of laws affecting marriage and divorce — subject discussed. N. S. 
 iii. 193. 
 
 57. The rights of a wife as creditor of husband under law of France continue 
 to attach to his property, though he is domiciled in the United States. Bonati v. 
 
 Welsch, N. S. ii. 250. 
 
 V. Between a State and the United States. 
 
 58. On a habeas corpus in a question of conflict between state and Federal 
 process, counsel have no right to appear in defence of the state process, unless in 
 some way authorized by the state or its proper ofBcers ; and Lfter return made, 
 the court refused to hear as counsel a member of the bar who showed no such 
 authority, nor any authority beyond that of the person executing the state writ. 
 Ex parte Jenkins, O. S. ii. 144 ; and Ex parte Alexander, 0. S. ii. 44. 
 
 59. In a prosecution in the circuit for treason, in the alleged commission of 
 which a citizen of a state, without the circuit, had been assaulted and killed, the 
 court approved of the presence of special governor of the state, as counsel cm- 
 ployed by the friends of the deceased. United States v. Hanwaii, 0. S. ii. 
 700. 
 
 60. Under United States laws, does not give power to do business in violation 
 of state laws. Commonwealth v. Uolbrook, N. S. v. 570. 
 
 61. Law of a state passed in disregard of an Act of Congress. See Thomas v. 
 Crossin, O. S. iii. 207 ; and see Fritz v. Fisher, 0. S. iii. 243. 
 
 VI. As TO Acts of Assembly of same State. 
 
 62. Conflict between Acts of Assembly of same state. Railroad Co. V. Rail- 
 road Co., 0. S. ii. 303. 
 
 VII. As between diffekent States — Appointment of Guardian, &c. 
 
 63. As to guardianship. See Livingston v. Jordan, N. S. x. 53. 
 
 64. Authority conferred on a guardian in New York does not authorize him to 
 take the minor's property in Louisiana. Powers v. Mortee, 0. S. iv. 427. 
 
 VIII. Status of Indians in United States. 
 
 65. Since the refnoval of the Miami tribe of Indians from Indiana, in pursu- 
 ance of their treaty with the United States in 1840, a marriage between two re- 
 maining members of tlie tribe, according to the native customs, will he held 
 invalid in the courts of Indiana, as contrary to the laws of that state. Roche v. 
 Washington, N. S. ii. 170. 
 
 66. Qit(Bre : Whether the Indian tribes within the United States are in any 
 case independent civilized nations, so as to require their marriage laws or cus- 
 toms to be recognised in the state courts. Id. 
 
 CONFUSION OF GOODS. 
 
 Forfeiture of goods by fraudulent mixture with those of other persons. 
 Stevenson v. Little, N. S. ii. 127. 
 
 CONGRESS. 
 
 1 . A lawver who is a candidate for Congress, but has no certificate of election, 
 receiving compensation for professional services before a department, between the 
 time of his election and taking his seat, is not within the Act of June 11th 1864. 
 Bowman v. Coffroth, N. S. viii. 755. 
 
 2. The legislation of Congress prohibits any extra compensation to an officer, 
 for services performed properly pertaining by law to his office. United States v. 
 Smith, 0. S. V. 268. 
 
 CONSCIENCE. 
 
 Liberty of; as to school regulations violative of the constitutional provision 
 securing. See Commonwealth v. M'Laurin, 0. S. vii. 417. 
 
 CONSENT. 
 
 When a juror is withdrawn from the panel at a criminal trial , even by consent, 
 the fact must be noted of record. Commonwealth v. Shaw, 0. &. vii- 289. 
 
208 CONSIDERATION— CONSPIRACY. 
 
 CONSIDERATION. 
 
 1 . To support an action upon a written agreement to pay the debt of another, a 
 consideration for the contract must be proved. Cuder v- Everett, O. S. i. 188. 
 
 2. From an agreement on a separate paper, to be responsible for the payment 
 of a note, though of the same date, described as having been given by a third 
 person, no inference of a consideration is to be drawn. Id. 
 
 3. Consideration of contract; subject discussed. O. S. ii. 257, 385, 449. 
 
 4. Where a promissory note had been given for the purchase-money of a dis- 
 eased and worthless m.'ire, the conduct of the holder of the note having misled 
 the buyer into the purchase : Held, that the consideration hart failed, and no re- 
 covery could be had on the note. Cassel v. Uerron, 0. S. i. 681. 
 
 5. Note being void for want of stamp, payee may recover in assumpsit on ori- 
 ginal consideration, Wilson v. Carey, N. S. vii. 634. 
 
 6. Confederate treasury notes were not an illegal consideration in contracts 
 between citizens of the Confederate States, unless it was the intent of the parties 
 to the contract thereby to aid the rebellion. Phillips v. Hooker, N. S. vii. 40. 
 
 7. A charter revocable at the pleasure of the state, liowse v. Washington 
 University, N. S. vii. 390. 
 
 8. If part of consideration is void, contract may be good ; aliter if any part 
 of consideration be illegal. Cohb v. Coivdery, N. S. vii. 572, 
 
 9. A pecuniary consideration is essential to uphold a deed of bargain and sale. 
 Thompson v. Thompson, N. S. vi. 26. 
 
 10. Forbearance, without binding agreement, will not exonerate. Van Reris- 
 sellaer v. Kirkjtatrich, N. S. vi. 1 90. 
 
 11. Such agreement not binding, without valid consideration. Id. 
 
 12. Payment of instalments no such consideration. Id. 
 
 13. Payment of a promissory note by the maker before maturity docs not ex- 
 tinguish it as against a bond fide holder without notice. Runyan v. Reed, 0. S. 
 vi. 305. 
 
 1 4. Where debt is payable in specific property, a new contract made before the 
 debt is due changing the mode and time of payment, needs no new consideration. 
 Thrall V. Mead, N. S. vii. 832. 
 
 15. Debtor in failing circumstances cannot even for valuable consideration 
 convey his land, reserving a right to occupy it for a time for his own benefit. 
 Lvkim V. Aird, N. S. vii. 313. 
 
 16. Conveyance without consideration to defraud creditors void against subse- 
 quent as well as prior creditors. Marsion v. Marston, N. S. vii. 443. 
 
 17. None but creditor of grantor can object to want of consideration. Hatch 
 v. Bates, N. S. vii. 442. 
 
 18. No failure in consideration of, given for slave, with warranty of his slavery 
 for life, by reason of ordinance abolishing slavery. Phillips v. Evans, N. S. vi. 
 248. 
 
 19. Discounting of new note and payment of former one, thereby extinguishes 
 old debt and creates a new one. Fisher v. Marvin, N. S. vi. 507. 
 
 20. Agreement to forbear suing, good consideration for third person's promise 
 to pay. Bank v. Wixon, N. S. vi. 184. 
 
 21. What is sufficient consideration for promise to pay subscription. Seminary 
 v. McDonald, N. 8. vi. 116. * 
 
 22. Consideration in a conveyance, good, though merely nomirnl, and proof 
 of actual payment need not be given. Webster v. Van Steenbergh, N. S. vi. 185. 
 
 CONSIGNEE. " 
 
 1. Immediate consignee liable to action. Strong v. Railway Co., N. S. vi. 680. 
 
 2. Liability of consignee for demurrage. Gage v. Morse, N. S. vi. 574. 
 
 3. Consignee not liable for demurrage, if bill' of lading contain no provision 
 for its payment. Id, 719. 
 
 CONSPIRACY. 
 
 1. A conspiracy to induce a third person to do an illegal act, whether malum 
 in se, or one prohibited under statutory penalties, for the purpose of afterwards 
 extorting money by compoundrag the offence, is indictable. Haeen v. Common- 
 wealth, 0. S. ii. 654. 
 
 2. An indictment for a conspiracy to " solicit, induce and procure" the officers 
 of a banking corporation to violate the Pennsylvania Act of 1850, prohibiting 
 the circulation of small notes under penalties,' alleging the purpose of the de- 
 
CONSPIRACY— CONSTITUTIONAL LAW. 209 
 
 fcndants to have been to compel the said officers "unjustly and unlawfully" to 
 pay large sums of money "for the corrupt gain" of the defendants, which was 
 to be effected through compounding the offence : Held, good after verdict. Hazen 
 y.' Commonwealth, 0. S. ii. 654. 
 
 3. The tranter of u sum of money from one party to another, in order to be 
 a payment of a debt, must be so intended by both parties. Atlantic Bank v. Mer- 
 chants' Bank, 0. S. ix. 241. 
 
 4. No action lies for simply conspiring to do an unlawful act. Kimball v. 
 Bai-man, N. S. xi. 54. 
 
 5. In maliciously instituting suit. Castrigue v. Behrens, N. S. i. 54. 
 
 CONSTITUTIONAL LAW. See Conplici or Laws. 
 I. Powers of Congress. 
 
 1. The provision of the Internal Revenue Act of July 4th 1864, requiring 
 writs in state courts to be stamped, is not within the sphere of the legislative 
 powers of the Federal government, and is inoperative. Warren v. Paul, N. S. 
 iv. 157. 
 
 2. Section 8 of art. 1 of the Constitution of the United States contains a del- 
 egation to Congress of power to suspend the writ of habeas corpus. Id. 
 
 3. There is in tfie constitution no express grant of legislative power to make 
 any description of credit currency a legal tender in payment of debts. Hepburn 
 v. Griswold, N. S. ix. 175. 
 
 4. The words " all laws necessary and proper for carrying into execution" 
 powers expressly granted or vested, have in the constitution a sense equivalent 
 to thatof the words, laws not absolutely necessary indeed, but appropriate, plainly 
 adapted to constitutional and legitimate ends, which are not prohibited, but con- 
 sistent with the letter and spirit of the constitution ; laws really calculated to 
 effect objects intrusted to the government. Id. 
 
 5. Among the means appropriate, plainly adapted, not inconsistent with the 
 spirit of the constitution, nor prohibited by its terms, the legislature has unre- 
 stricted choice ; but no power can be derived by implication from any express 
 power to enact laws as a means for carrying it into execution, unless such laws 
 come within this description. Id. 
 
 6. The making of notes or bills of credit a legal tender in payment of pre- 
 existing debts is not a means appropriate, plainly adapted, or really calculated 
 to carry into effect any express power vested in Congress ; is inconsistent with 
 the spirit of the constitution, and is prohibited by the constitution. Id. 
 
 7. The clause in the Acts of 1862 and 1868, which makes United States notes 
 a legal tender in payment of all debts, public and private, is, so far as it applies 
 to debts contracted before the passage of those acts, unwarranted by the consti- 
 tution. Id. 
 
 8. Congress has no power to prevent state courts from taking jurisdiction of 
 an action for the want of a stamp. Coppernollv. Ketchiim, N. S. ix. 518. 
 
 9. No citizen of Maine can be deprived of his right to vote under the Act of 
 Congress of March 2d 18B5, c. 79, until after conviction and sentence of a court 
 martial of the United States. Slate v. Symonds, N. S. x. 135. 
 
 10. Under the 13th amendment, abolishing slavery and giving to Congress 
 "power to enforce this article by appropriate legislation," the Act of 1866, 
 known as the Civil Rights Law, is constitutional. United States v. Rhodes, N. 
 S. vii. 233. 
 
 11. Under this act all persons stand upon a plane of equality before the l&w, 
 as respects the civil rights therein mentioned and intended to be protected, with- 
 out distinction as to race or color or any previous condition of slavery. Id. 
 
 12. If a state law denies any of these rights— e. q., the right of colored persons 
 to testify — this act gives to the courts of the United States jurisdiction of all 
 causes, civil and criminal, which affect or concern such persons. Id. 
 
 13. Where a white person commits the crime of burglary, by breaking and 
 entering the house of a colored person, in a state whose laws deny to such 
 colored person the right to testify against the accused, the latter may be indicted, 
 prosecuted, and convicted for such offence in the courts of the United States. 
 Id. 
 
 14. Congress may deprive a criminal of his citizenship and thereby affect his 
 right to vote, but the direct regulation of tlie qualification of voters in a state is 
 not in the province of Congress. Huher v. Reillj), N. S. vii. 57. 
 
 15. Act of Congress of July 4th 1864, imposing stamp duty on judicial process 
 14 
 
210 CONSTITUTIONAL LAW. 
 
 in state courts, unconstitutional. Note to Hughes v. Litsey, commenting on Jones 
 V. Estate of Keep, N. S. v. 161. 
 
 16. Proviso in Act of Congress, February 25th 1862, constitutional. People 
 V. Assessors of barton, N. S. v. 441. 
 
 17. Congress has the constitutional power to prohibit the foreign slave trade. 
 United States TT. Gould; United States \. Brodnax, 0. S. viii. 525. 
 
 18. Depositions taken under the Act of Congress, without notice to the oppo- 
 site party, are admissible in evidence, but it is for the jury to determine the 
 weight and credibility to which they are entitled. Jolly v. Drawbridge Co., 0. 
 S. iii. 29. 
 
 19. The evidence of experts, if uncontradicted and unimpeached, is entitled to 
 great weight. Id. 
 
 20. If the jury find for the plaintiffs, they may include in the damages given 
 the probable earnings of their boat for the time she was delayed in repairing the 
 damages sustained. Jd. 
 
 21. Military commissions and their acts, during the late war, were unconstitu- 
 tional in states where the courts were undisturbed. Milligan v. liovey, N. S. 
 xiii. 122. 
 
 22. The members of such commissions, and United States army officers, are lia- 
 ble for arrests and imprisonments ordered by them in such states. Id. 
 
 23. Also for imprisonment beyond their jurisdiction, if it was in consequence 
 of sentence pronounced by them. Id. 
 
 24. An Act of Congress would not be a justification, if the trial by commis- 
 sion was forbidden by the constitution. Id. 
 
 25. The damages should be compensatory and not punitive. Id. 
 
 26. The limitation imposed by the Act of March 3d 1863, for the bringing of 
 suits, was within the power of Congress. Id. 
 
 27. Where rights of individual citizens are not derived originally from the 
 constitution, but are part of the political inheritance from the mother country, 
 the power of Congress does not extend to the enactment of positive laws for the 
 protection of such rights, but only to the prevention of the states from violation 
 of them. United States v. Cruikshanh, N. S. xiii. 630. 
 
 28. But where a right is derived from the constitution and aflirmative legisla- 
 tion is necessary to secure it to the citizen, then Congress may pass positive laws 
 for the enforcement of the right and for the punishment of individuals who in- 
 terfere with it. Id. 
 
 29. These principles apply to the 14th amendment equally with the rest of the 
 constitution, and there can be no constitutional legislation under that amend- 
 ment for directly enforcing the privileges and immunities of citizens of the United 
 States by original proceedings in the Federal courts, where the only constitu- 
 tional guaranty of such privileges is that no state shall pass any law to abridge 
 them, and where the state has, in fact, passed no such laws. Id. 
 
 30. The 13th amendment gave Congress power to pass positive laws for doing 
 away with slavery, but it did not give power to pass laws for the punishment of 
 oi'dinary crimes against the colored race any more than against any other race. 
 That power remains to the states. Id. 
 
 31. To constitute an offence of which Congress and the Federal courts can 
 take cognisance under this amendment, there must be a design to Injure a person 
 or deprive him of his right, by reason of his race, color or previous condition 
 of servitude. Id. 
 
 32. The 15th amendment confers no right to vote. That is the exclusive pre- 
 rogative of the states. It does confer a right not to be excluded from voting by 
 reason of race, color or previous condition of servitude, and this is all the right 
 that Congress can enforce. Id. 
 
 33. Seinble, Congress may pass laws to protect this right under the 15th amend- 
 ment from individual violation, although the laws of the state are not repugnant 
 to the amendment. Id. 
 
 34. But offences against the right to vote are not cognisable under the power 
 of Congress, unless they have as a motive the race, color or previous condition 
 of servitude of the pnity whose right is assailed. Id. 
 
 35. The u-ar of race, whether it assumes the dimensions of civil strife and 
 domestic violence, or is limited to private outrage, is subject to the jurisdiction 
 of the United States, but outrage or violence, whether against colored people oi' 
 white people, which lacks this motive and springs from the ordinary impulse of 
 
CONSTITUTIONAL LAW. 211 
 
 « 
 
 crime, is within the sole jurisdiction of tiio inrliviilunl state, unless the latter by 
 its laws denies to any race the full equality of protection. United States v. Cruik- 
 shank, N. S. xiii, 630. 
 
 36. An indictment for conspiracy to interfere with the right peaceably to as- 
 semble, &c., or with the right to bear arms, or "to deprive certain citizens of 
 African descent of their lives and liberties without duo process of law," where 
 the state has not passed any law interfering with such rights or denying equal 
 protection to all its citizens, is not sustainable in a United States court under any 
 law that Consiress had power to pass. Id. 
 
 37. An indictment for conspiracy to deprive certain citizens of African descent 
 of the free e.\crcise and enjoyment of the right to the full and equal benefit of 
 all laws and proceedings for the security of persons and property which is on- 
 joyed by white citizens, does not, in the absence of a specific allegation of a 
 design to deprive the injured persons of their rights on account of their race, 
 color or previous condition of servitude, charge any offence cognisable in a 
 United States court. Id. 
 
 38. Scmb!e, such an indictment is also bad for vagueness. Id. 
 
 39. The Act of Congress of May 31st 1870, commonly called the Enforce- 
 ment Act, so far as it assumes to regulate the right to vote, is beyond the scope 
 of the 15th amendment and void ; and an indictment under it for conspiracy 
 to hinder certain citizens of African descent in the exercise of their right to vote, 
 cannot be sustained in a United States court without an allegation that the con- 
 spiracy was to hinder, &c. , by reason of their race, color or previous condition 
 of servitude. Id. 
 
 40. An nttachment issued by a state court to affect the funds of a national 
 bank is illegal, being in violation of the 57tli sect, of Act of June 3d 1864. 
 Chesapeake Bank v. First Nat. Bank of Baltimore, N. S. xiv. 259. 
 
 41. The 2d sect, of the Act of March 3d 1873, amending the 57th sect, of the 
 Act of June 3d 1864, is constitutional. Id. 
 
 42. The government of the United States clearly has power to permit limited 
 commercial intercourse with an enemy in time of war, and to prescribe the con- 
 ditions. Hamilton v. Dillin, N. S. xiv. 454. 
 
 4.3. The president, with the authority of Congress, may exercise this power. 
 Id. 
 
 44. The Act of July 13th 1861, fully authorized the rules of the secretary of 
 the-treasury of March and September 1863. Id. 
 
 45. The Act of July 2d 1864, also recognised these regulations and rules. 
 Id. 
 
 46. The charge of four cents a pound for trading in cotton, prescribed by 
 these rules, was not a tax ; it was a condition. Id. 
 
 47. It was a condition in the option of any one to accept or not, and all pay- 
 ments made were voluntary. Id. 
 
 48. The Revenue Acts of 1862 and 1864, imposing specifio duties on cotton, 
 were not inconsistent with this charge. Id. 
 
 49. Nashville being hostile, was within the prohibition of commercial inter- 
 course by the terms of the president's proclamation. Id. 
 
 50. The civil war affected the entire territory of the states in insurrection. 
 Id. 
 
 51. Congress has power to prohibit state judges from interfering with enlist- 
 ments by habeas corpus. Matter of O'Connor, N. S. vii. 60. 
 
 52. Confederate treasury notes were not bills of credit within the prohibition 
 of the Constitution of the United States. Matter of Milner, N. S. vii. 371. 
 
 53. The act imposing severe penalties on pension agents for receiving a greater 
 compensation than ten dollars for services, not unconstiutional. United States v. 
 Fairchilds, N. S. vii. 306. 
 
 54. A proceeding to condemn property under an Act of Congress is a " suit of 
 a civil nature at common law or in equity," within the meaning of the Judiciary 
 Act. United States v. Block, N. S. xiii. 124. 
 
 55. Validity of the Act of Congress of February 25th 1845, relatmg to ad- 
 miralty jurisdiction, discussed. Peoplev. Tyler, 0. S. viii. 403. 
 
 56. The 4th section of the Enforcement Act of May 31st 1870 is not founded 
 on the fifteenth amendment, and is unconstitutional. United States v. Judges 
 of Petersburg Election, N. S. xiv. 105. 
 
 57. An action by the Federal government is subject to the forms of pleading 
 
212 CONSTITUTIONAL LAW. 
 
 anil the rules of practice applicable to suits between individuals. UniteA States 
 V. Railroad Bridge Co., 0. S. iii. 603. 
 
 58. Congress has the constitutional right to confer on the secretary of the 
 treasury the power to make regulations, imposing the forfeiture of property on 
 violation of these regulations. United States v. Schooner Francis Hatch, N. S. 
 iv. 289. 
 
 59. Congress cannot constitutionally prolong the tenure of office. Case of 
 the District Attorney, N. S. vii. 786. 
 
 II. Inteefekenoe with State Laws. 
 
 60. A license under Act of 1862, c. 119, does not authorize the sale of liquors 
 in violation of a state law. Commonwealth y. Thornily, N. S. iii. 373. 
 
 III. POWEKS OF THE EXECUTIVE. 
 
 61. The president is vested with the whole executive power of the United 
 States, and whether in suppressing an insurrection he has met such armed re- 
 sistance and a civil war of such proportions as compels him to accord them the 
 character of belligerents, is a question to be decided hy him, and the courts must 
 be governed by his decision. Schooner Brilliant et al, v. United States, N. S. ii. 
 334. 
 
 62. The president therefore had a right jure belli to institute a blockade of 
 ports in possession of the states in rebellion, which neutrals are bound to regard. 
 Id. 
 
 63. Under the constitution of this government, although the citizens owe 
 supreme allegiance to the Federal government, they owe also a qualitied alle- 
 giance to the state in which they are domiciled ; their persons and property are 
 subject to its laws. Id. 
 
 64. Hence, in organizing this rebellion, they have acted as states claiming to 
 be sovereign over all persons and property within their respective limits, and 
 asserting a right to absolve their citizens from their allegiance to the Federal 
 government. The ports and territory of these states are held in hostility to the 
 general government, and all persons residing in this territory whose property 
 may be used to increase the revenues of the hostile power, are in this contest 
 liable to be treated as enemies. Id. 
 
 65. The Act of Congress of July 1.3th 1861 is not a penal, but a revenue 
 statute, and is to be construed liberally, so as to accomplish its proposed object. 
 United States v. Prohasco, N. S. ii. 419. 
 
 66. Where a party for fraudulent purposes mixes up goods prohibited by a 
 revenue act with those not prohibited, the whole will be forfeited. Id. 
 
 67. A citizen may be forbidden by a municipal law- to do what would be lawful 
 for a neutral to do on the high seas. Id. 
 
 68. A sale of contraband property to a belligerent in a neutral territory is a 
 violation of neutrality, and, & fortiori, such sale in one belligerent country by a 
 citizen or domiciled person thereof is a breach of allegiance. Id. 
 
 69. Hence the Act of July 13th 1861 prohibits every act done towards the 
 execution of a design to carry on, without a " permit," commercial intercourse 
 between the interdicted and other states, and it is violated not only when a vessel 
 has actually sailed with the goods on board, but the moment the goods are 
 started, even on land, towards the forbidden destination. The application for a 
 "permit" is evidence of the intention to proceed, and the use of fraudulent in- 
 voices to procure the " permit" shows the intention to be fraudulent. The ship- 
 ment of goods under color of that permit is a step taken in execution of that 
 fraudulent intent — is an overt act. Such goods are "proceeding to" the inter- 
 dieted port within the meaning of the Act of July 13th 1861, and the shipper, 
 under the Act of May 20th 1862, is guilty of an " attempt" to transport them in 
 violation of law. Id. 
 
 70. The condition of peace or war, public or civil, in a legal sense, must be 
 determined by the political department of the government, and the courts are 
 bound by that decision. Id. 
 
 71. By the Act of July 13th 1861, the prohibition of commercial intercourse 
 is to be in force " so long as such condition of hostility shall continue." The 
 same power which determines the existence of war or insurrection must also 
 decide when " the condition of hostility" ceases. In a legal sense the state of 
 war or peace is not a question in pais for courts to determine. It is a legal fact 
 ascertainable only from the decision of the political department. Id. 
 
 72. Hence, when the president has proclaimed a state to be in insurrection, 
 
CONSTITUTIONAL LAW. 213 
 
 the courts must hold that this condition continues until ho decides to the contrary. 
 United States v. Probasco, N. S. ii. 419. 
 
 73. The same rules apply as to the exceptions from the interdict of such 
 parts of the insurrectionary states "as may maintain a loyal adhesion to the 
 Union and the constitution, or may he from time to time occupied and controlled 
 by forces of the United States engaged in the dispersion of said insurgents." 
 Such exceptions, and the legal status of such parts of said states, are to be deter- 
 mined by the president. Id. 
 
 74. Governor cannot bo enjoined to perform a duty. Mauran v. Smith, N. 
 S. T. 630. 
 
 75. President of United States cannot be restrained from executing Act of 
 Congress alleged to be unconstitutional. State of Mississippi v. Johnson, N. S. 
 vi. 632. 
 
 76. A bill having such purpose not allowed to be filed. Id. 
 
 77. Power of governor of Kentucky to pardon. Commonwealth v. Ashlock, N, 
 S. vi. 441. 
 
 78. The governor of a state cannot be coerced by mandamus to perform an 
 ofScial duty. People ex rel. Harless v. Secretary of State, N. S. iii. 314. 
 
 79. The constitution of Illinois allows the governor the full period of ten days 
 of twenty-four hours each, excluding Sundays, and not simply ten legislative 
 days, in which to return bills which he does not approve. Id. 
 
 80. The secretary of state cannot be called upon to determine whether a bill 
 is or is not a law. Id. 
 
 81. The power of the governor to adjourn the legislature in case of disagree- 
 ment between the two houses. Noted to People v. Auditor, S^e., N. S. iii. 346. 
 
 82. Power of courts to review the action of the executive of a state. Note i 
 to People V. Auditor, ^c, N. S. iii. 343. 
 
 83. The certiticate of the speaker of a house of representatives, as to the 
 attendance of a member of the house, is not conclusive on the auditor of state. 
 People ex rel. Harless v. The Secretary of State, N. S. iii. 314. 
 
 84. When the governor returns a bill to the legislature, and his messenger 
 notifies them that it is a message from the governor, the provisions of the con- 
 stitution in reference to bills becoming law unless returned within a certain num- 
 ber of days is complied with, and the legislature cannot prevent its effect by 
 refusing to receive the message. Opinion Sup. Ct. N. II., N. S. iv. 212. 
 
 85. The constitution gives a certain number of days, of twenty-four hours 
 each, and the governor's veto would still be in time if delivered to the speaker 
 on the last day, though after the adjournment of the house. Id. 
 
 86. The adjournment contemplated by the constitution is a final adjournment. 
 Therefore, an intermediate recess for a few days, while the bill is in the governor's 
 hands, does not affect the time within which he should return it. Id. 
 
 87. The presentation of the bill on a certain day at the governor's usual place 
 of receiving bills, is a presentation to the governor on that day. Id. 
 
 88. In New Hampshire the day an act is done is to be excluded in computing 
 time. How far the computation of time under the section of the constitution 
 giving the governor five days to return a bill, can be affected by a statute passed 
 subsequently; Quere. Id. 
 
 ■ 89. Power of Congress to extend tenure of office and of president to appoint 
 to fill vacancies happening during the recess of the senate. It seems he has no 
 constitutional power to make temporary appointment except during the recess of 
 the senate. Case of the District Altorneij, N. S. vii. 786. 
 
 90. The war department by its proper officers may make a valid contract 
 for the slaughtering, curing and packing of pork, when that is the most ex- 
 pedient mode of securing supplies of that kind. United States v. Speed, N. S. 
 ix. 63. 
 
 91. The Act of April 12th 1867, providing for the appointment by tho gov- 
 ernor of police officers, for the protection of persons in the mining regions, is 
 constitutional. Northumberland Co. v. Z'mmerman, N. S. xiv. 125. 
 
 92. The president's power of general amnesty— subject discussed. N. S. viii. 
 
 513, 577. „ , , 
 
 93. Where a demand is made bv the executive officer of one state, under the 
 provisions of the Constitution and laws of the United States and a copy of the 
 indictment found or affidavit made, as provided by the Act of 1793 shall he pro- 
 duced and duly authenticated, as required by that act, charging the person so 
 
214 CONSTITUTIONAL LAW. 
 
 demanfled of liaving committed d, cfime against the laws of the state, from Which 
 he fled, the execntive officer of the state upon whom the demand is made for the 
 surrender of such fugitive must he governed by the record produced. He has no 
 authority to make any addition to it or to look behind the indictment or affidavit, 
 and inquire wliether by the laws of his oWn state the facts charged therein would 
 constitute a criminal offence ; but it is made his imperative duty, under the su- 
 preme law of the land which he has sworh to support, to surrender tip such 
 fugitive to the authorities of the state whose laws have been violated. Johnson 
 V. BUey, 0. S. ii. 380. 
 rV. Questions kelating to the Couets and the Judiciai. Power. 
 
 94. The concurrent jurisdiction of the national and state courts considered and 
 discussed. Jett v. Conimonweallh, N, S. vii. 260. 
 
 95. Where a person was regularlv indicted, convicted, and sentenced under 
 proceedings in a court of competent jurisdiction, the fact that the judge who pre- 
 sided at the trial and passed sentence was within the class prohibited from holding 
 office by the fourteenth amendment to the Constitution of the United Slates, 
 does not make the sentence a nullity nor entitle the prisoner to a discharge ou 
 habeas corpus. Ex parte Griffin, N. S. viii. 358. 
 
 96. The third section of the fourteenth amendment did not, by its own direct 
 and immediate effect, remove from office persons lawfully appointed or electeii 
 before its passage, though they may have been ineligible to hold such office under 
 the prohibition of the amendment. Legislation by Congress was necessary to 
 give effect tp the prohibition by providing for removal. IH. 
 
 97. The exercise of their official functions by these officers until removed in 
 pursuance of such legislation is lawful and valid. Id. 
 
 98. The government of Virginia formed at Wheeling by the loyal citizens of 
 the state, after the passage of the ordinance of secession by the convention at 
 Eichmorid, having been recognised by the executive and legislative departments 
 of the national government, must be treated by the courts of the United States 
 as the lawful government of the state. Id. 
 
 99. The Supreme Court of the United States cannot acquire jurisdiction of a 
 cause through an order of a Circuit Court. The Alicia, N. S. viii. 446. 
 
 100. The question whether the use for which property is taken under eminent 
 domain is a public use, is a judicial question. Cosier v. Tide-water Co., N. S. 
 vii. 760. 
 
 101. The power of the judiciai-y to declare a law unconstitutional — subject dis- 
 cussed. N. S. xi. 729. 
 
 102. Appellate jurisdiction in the Federal courts depends on the Constitution 
 and the Acts of Congress. When these do not confer it, courts of the United 
 States cannot exercise it by virtue of agreement of counsel or otherwise. The 
 Lucy, N. S. ix. 199. 
 
 103. So much of the Act of March 3d 1863 as provides for the removal of a 
 judgment in a state court, where the cause was tried by a jury for a re-trial, is 
 unconstitutional. The Justices v. Murray, N. S. ix. 444. 
 
 104. The power of the judiciary to declare an Act of Congress void for un- 
 constitutionality — subject discussed. N. S. ix. 585. 
 
 105. The fifth section of the Act of Congress of March 3d 1863, providing 
 for the removal of suits against officers and others for acts done under color of 
 authority. of the president or any Act of Congress of the United States, from a 
 state court to the Circuit Court of the United States, is constitutional. McCor- 
 mick V. Humphreys, N. S. vi. 552. 
 
 106. Ninth section of the Judiciary Act, vesting in the United. States District 
 Courts exclusive admiralty jurisdiction, is constitutional. The Moses Tmilor N 
 S. vi. 630. •' ' 
 
 107. Construction of local law by state courts binding on United States courts. 
 Christy v. Pridgeon, N. S. vi. 437.' 
 
 108. Act requiring legal process to be stamped cannot apply constitutionally 
 to writs issued by state courts. Fijield v. Close, N. S. vi. 639. 
 
 109. The decision of the Supreme Court of the United States, in Ex parte 
 Garland, that the Act of Congress of 1865, relative to admissions to the bar, is 
 unconstitutional, does not dispense with taking the oath prescribed by the rules 
 of the court. Ex parte Magruder, N. S. vi. 292. 
 
 110. The Act of Congress of January 24th 1865. prescribing an oath to be 
 taken by attorneys, is unconstitutional. Ex parte Garland, N. S. vi, 284. 
 
CONSTITUTIONAL LAW. 215 
 
 lU. Act of Congress 24th January 1865, prescribing oath before admission 
 to bar of United States courts, unconstitutional. Nolo ii to Hughes v. Litsey, 
 commenting on The matter of John Baxter, N. S. v. 159. 
 
 112. Courts have no power to compel the legislature to execute a trust of 
 municipal (not fiducial) character. Supervisors y. Burchel/, N. S. iii. 631. 
 
 113. State courts have no power to issue a writ of habeas corpus, or to con- 
 tinue proceedings under it when issued, in cases of commitment or detainer under 
 the authority of the United States. Mattei- of Hopson, N. S. iii. 189. 
 
 114. The judiciary have no power to inquire into or correct any matter of en- 
 largement of city boundaries by annexation of new territory made by the legis- 
 lature, as that is a matter within their discretion ; and when such territory is an- 
 nexed, it must be taxed the same as other lands within the city limits. Weeks v. 
 City of Milwaukee, O. S. viii. 624. 
 
 115. An act of the legislature, in terms discriminating against taxes levied to 
 pay judgments upon railroad bonds and coupons, Ae/rf void because it impaired 
 the obligation of the contract under which the bonds were issued. United States 
 V. Treasurer of Muscatine Co., N. S. ix. 415. 
 
 116. A constitutional provision debarring any person engaged in duelling, 
 heing judicial in its nature, and for the infliction of a punishment, the legislature 
 could not, if it had attempted so to do, have conferred the power of executing it 
 upon a board or tribunal composed of executive officers. Commonwealth v, Jones, 
 N. S. xiv. 374. 
 
 11". The provision of the Constitution of the United States expressly confer- 
 ring appellate jurisdiction on the Supreme Court does not authorize the exercise 
 of appellate power by that tribunal over the state courts, but extends simply to 
 appeals from the subordinate Federal courts. Stunt v. The Steamship Ohio, 0. S. 
 Iv. 49. , 
 
 118. There is no provision in the constitution from which a supervising power 
 in the Supreme Court ofthe United. States over the state courts can be derived 
 by way of incident or implication. Id. 
 
 119. The Supreme Court ofthe United States has not heen constituted the ex- 
 clusive tribunal of last resort to determine all controversies in relation to con- 
 flicts of authority between the Federal government and the several states of the 
 Union. Id. 
 
 120. The state courts and the Federal courts are co-ordinate tribunals, having 
 concurrent jurisdiction in numerous cases, but neither having a supervising power 
 over the other ; and where the jurisdiction is concurrent, the decision of that 
 court, or rather of the courts of that judicial system in which the jurisdiction 
 first attaches, is final and conclusive as to the parties. Id. 
 
 121. The courts cannot annul an act of the legislature simply because it vio- 
 lates the fundamental principle of correct legislation, but may because it violates 
 the fundamental principles of the constitution. Madison Sj- Ind. Railroad Co. v. 
 Whiteneck, 0. S. v. 214. 
 
 122. The courts of the Union having jurisdiction of the parties in a civil suit 
 are competent to administer the common-law remedy for an injury sustained by 
 reason of an unlawful obstruction in a navigable stream, without any express 
 legislation by Congress giving the remedy and prescribing the mode of its en- 
 forcement. Jolly V. Terre Haute Drawbridge Co., 0. S. iii. 29. 
 
 V. Powers of the States and State Legislatures. 
 
 123. The power to regulate, provide for and control the surrender of fugitives 
 from justice from foreign countries is by the Federal Constitution conferred ex- 
 clusively on the Federal government, and cannot be exercised by the states. 
 People V. Curtis, N. S. xii. 94. 
 
 124. A state law giving the governor power to surrender a criminal to a for- 
 eio'n country is contrary to the provisions of the United States Constitution. 
 Id. 
 
 125. The terra "due process of law" in the constitution of Wisconsin, art. 
 1, sect. 8, does not mean a presentment or indictment by a grand jury. Rowan 
 V. State, N. S xii. 189. 
 
 126. The 14th amendment to the Constitution of the United States does not 
 prevent states punishing felonies by criminal informations without indictment. 
 Id. 
 
 127. The amended constitution of Tennessee, abolishing slavery, is valid. 
 Williamson v. Jones, N. S. iv. 651. 
 
216 CONSTITUTIONAL LAW. 
 
 128. Courts organized under it are bound to consider it so. Note to Williamson 
 T. Jones^ N. S. iv. 654. 
 
 129. Modes of amendment of constitutions, legal and revolutionary, discussed. 
 IdL note, 656. 
 
 130. Foreign goods sold by the shipper to a third person, while still on board 
 the ship, arc not exempted from state taxation, under the clause of the constitu- 
 tion, saying " no state shall lay any imposts on imports. " Waring v. The Mayor, 
 IS. S. ix. 56. 
 
 131. A law changing the place of trial is not an ex post facto law. Gut t. 
 State, N. S. ix. 511. 
 
 132. A state may alter and modify the remedy on a contract, yet it is prevented 
 from passing laws impairing the obligation of contracts, if it interfere at all, to 
 leave in existence a remedy as efficient and substantial as that which subsisted 
 when the contract was made ; for the remedy being necessarily inseparable from 
 the obligation, any law which clogs it with conditions and restrictions which ma- 
 terially impair its efficiency, and which did not exist ivhen the contract was 
 made, impairs necessarily the obligation. Las'ey v. Phipps, N. S. xiii. 236. 
 
 133. The right to seize and sell by judicial process a debtor's property in sat- 
 isfaction of a judgment against him, is a material part of the remedy for the 
 enforcement of the contract on which the judgment is founded ; and any law of a 
 state which materially increases the amount of property exempt by law from ex- 
 ecation over the amount allowed when the contract was made, impairs the remedy 
 materially, and is therefore prohibited by the Federal Constitution. Id. 
 
 134. The Exemption Law of Mississippi, passed in 1865, which increased the 
 homestead exemption from 160 acres of land, not exceeding $15U0 in value, to 
 240 acres, regardless of its value, is, when applied to debts created before itspass- 
 i.ge, in violation of that clause of the Federal Constitution which prohibits 
 states from passing laws impairing the obligation of contracts. Id. 
 
 135. The legislature may confer enlarged powers' upon a corporation with the 
 assent of the stockholders. Curry v. Scott, N. S. vii. 166. 
 
 136. As to the power to legislate out of office a judge. State v. Draper, N. S. 
 xi. 552. 
 
 137. Legislature possessing a power, can cure evils from its irregular execu- 
 tion. Thomson v. Lee, N. S. v. 571. 
 
 138. Clause in charter of corporation authorizing legislature to alter or re- 
 voke the charter, is a reservation to the state for the benefit of the public, and is 
 to be exercised by the state only. Zubrisicie v. Railroad Co., N. S. vi. 420. 
 
 139. An existing lawful government cannot be changed unless by legal con- 
 sent of the people. Wells el al. v. Bain, N. S. xiv. 117. 
 
 14p. TheBill of Rights recognises three modes : (1) The mode provided in tie 
 constitution ; (2) A law raising a body and giving it the power of the people ; 
 (3) Revolution. Id. 
 
 141. The Act of June 2d 1871 of Pennsylvania only submitted to the people 
 the question of calling a convention to amend the constitution. Id. 
 
 142. The Act of April 11th 1872 authorized the election of delegates, and 
 gave them power to propose a new constitution, to be submitted to the people ac- 
 cording to the general election laws. Id. 
 
 143. An ordinance of the convention, changing the election law, was contrary 
 to Act of 1872 and void. Id. 
 
 144. The procedure of the convention acting within its powers cannot be in- 
 quired into. Id. 
 
 145. The convention of 1873 had no inherent rights, only powers. Wood's 
 Appeal, N. S. xiv. 118. 
 
 146. The Bill of Rights is a reservation to the people themselves, not a dele- 
 gation of powers to a convention. Id. 
 
 147. The people had the same right to limit the power of their delegates as to 
 bind their representatives. Id. 
 
 148. The convention called under the Acts of 1871 and 1872 could not take 
 from the people their sovereign right to ratify or reject the constitution framed 
 by it. Id. 
 
 149. A charter giving a municipal corporation the power to prescribe by ordi- 
 nance, fines and penalties for the violation of its ordinances, preserving the 
 right of trial by jury where demanded, if the punishment is imprisonment or 
 
CONSTITUTIONAL LAW. 217 
 
 the fine over §20, is constitutional. Hone v. Treasurer of Plainfield, N. S. xiv. 
 251. 
 
 J 50. The provision in the constitution of New Jersey ordaining that the 
 right of trial bv jury shall remain inviolate, is the same as in the constitution 
 of 1776, and does not extend the right to cases where it did not previously exist. 
 Id. 
 
 151. The same act may he an offence against the state and a municipality, and 
 both may punish constitutionally. Id. 
 
 152. The punishment for selling intoxicating liquors may be constitutionally 
 delej^ated to a municipal corporation. Id. 
 
 153. The Constitution of the United States secures to the citizens of another 
 state than that in which suit is brought, an absolute right to remove them into 
 the Federal court. Insurance Co. v. Morse, N. S. xiv. 316. 
 
 154. The obstruction of this right by a statute of a state is repugnant to the 
 constitution, and the statute illegal and void. Id. 
 
 155. A statute of Rhode Island which provides " that the report of an" audi- 
 tor shall be primd facie evidence of all matters expressly embraced in it, on a 
 trial being demanded, is unconstitutional, being in conflict with art. 1, sect. 15. 
 Francis v. Baker, N. S. xiv. 392. 
 
 156. A law which takes away a right of defence under the Statute of Limita- 
 tions is unconstitutional. Rockport v. Walden, Ex'r, N. S. xiv. -393. 
 
 157. An Act of Assembly passed pending a trial of a quo warranto, issued 
 under s\ previous act, and prescribing the meaning of such previous act, may be 
 constitutional. Hawkins v. Commonwealth ex rel., N. S. xiv. 455. 
 
 158. An act declaring that the meaning of another act was not to prevent a 
 member of councils from being a notary public, is constitutional. Id. 
 
 159. Such an act simply modifles the character of the municipal corporation. Id. 
 
 160. It does not interfere with the functions of the courts, nor overrule the 
 judiciary. Id. 
 
 161. AH that is required in order that an Act of Assembly of Pennsylvania 
 should be constitutional, is that the title should fairly give notice of the subject 
 of the act. Allegheny County Home's Case, N. S. xiv. 752. 
 
 162.. The title should not mislead or tend to avert inquiry into the contents of 
 the act. Id. 
 
 163. Even if one section is unconstitutional it does not alfect the constitution- 
 ality of the other sections. Id. 
 
 164. The act providing for an equitable division of property between Allegheny 
 county and the city of Pittsburg is constitutional. Id. 
 
 165. The legislature has power to remove the legal taint of illegitimacy either 
 bv general or special law, for all purposes of future inheritance. McGunnigle v. 
 McKee, N. S. xiv. 754. 
 
 166. Ihe averment of the parentage of a child in an act legitimatizing it, is 
 primd facie evidence of its truthfulness. Id. 
 
 167. The legislature of a state cannot deprive a citizen of another state of his 
 legal or equitable rights under the constitution and laws of Congress, by de- 
 claring in what courts they must be enforced. Amoryv. Amoryet al., N. S. xii. 
 585. 
 
 168. The state legislature has no authority, directly or indirectly, to add to or 
 dispense with the requirements of section 1 of the Act of Congress of July 
 29th 1 850, entitled an " Act to provide for recording the conveyances of vessels. ' ' 
 Wood V. Stockwell, N. S. viii. 190. 
 
 169. Separation of legislative from judicial power — subject discussed, 0. S. 
 vii. 467. 
 
 170. In respect to such contracts for materials furnished for building ships on 
 an estuary of the sea, the states may create such liens as their legislatures deem 
 just and expedient. Edwards v. Elliott et al., N. S. xiv. 518. 
 
 171. State legislatures have no authority to create maritime liens or confer 
 jurisdiction on state courts to enforce such liens by proceedings in rem. Such 
 jurisdiction is exclusively in the Courts of Admiralty of the United States. 
 Deever v. Steamer Hope, N. S. ix. 683. 
 
 VI. Taking Private Propeutv. 
 
 172. Legislature may authorize construction of public works without compen- 
 sation to property injured if not actually taken. Arnold v. Railroad Co., N. S. 
 vii. 380. 
 
218 CONSTITUTIONAL LAW. 
 
 173. Public bridge belonging to a county not within the constitutional pro- 
 hibition. Freeholders, Sj-c, v. Turnpike Co., N. S. vii. 7.59. 
 
 174. But a charter to turnpike company requiring it to pay owners of lands 
 includes county bridge. Id. 
 
 175. Even if damages for taking such bridge were only nominal, the county 
 is entitled to restrain the use of it until damages are assessed and title has passed 
 to the company. Id. 
 
 176. Legislature has no power to transfer one man's property to another with-, 
 cut his consent, even with compensation. It is not an exercise of the law-making 
 power given to the Legislature. Coster v. Tide-water Co., N. S. vii. 760. 
 
 177. Grant of power to one man to improve property of another without his 
 consent, at compensation to be fixed by third person, is void as beyond the powers 
 of the legislature. Id. 
 
 178. Private property may be taken by eminent domain for public use on ade- 
 quate compensation, but the use meant is by the government itself or the general 
 public or some portion of it. Id. 
 
 179. Whether the use in question is a public use, is a judicial question. Id. 
 
 180. Eminent domain and taxation may be employed lo reclaim large tracts 
 of land, and the question of using these powers for such purpose is with the 
 legislature, but to compel the owner to bear the expense of improvement beyond 
 his particular advantage is taking his property without compensation and uncon- 
 stitutional. Tide-water Co. v. Coster, N. S. vii. 761. 
 
 VII. POWEKS OF THE StATE LEGISLATURES. 
 
 181. An act of the legislature creating a reform school, and providing for the 
 summary commitment to it of children who are " destitute of proper parental 
 care and growing up in mendicancy, ignorance, idleness, or vice," is unconstitu- 
 tional, as it prescribes a virtual imprisonment without due process of law. People 
 V. Turner, N. S. x. 366. 
 
 182. Besides the objection to the summary method of proceeding prescribed, 
 such an act, so far as it restrains liberty for any cause except actual crime, is in 
 violation of the Bill of Rights, which declares that all men have certain inherent 
 rights, among which is liberty. Id. 
 
 183. The rights of the state and of parents Over children, stated and discussed 
 by Thornton, J. Id. 
 
 184. A state statute providing that in all suits founded on any debt or contract 
 made prior to 1865 or in renewal thereof, the plaintiff should not have a verdict 
 or judgment until he had made it clear to the tribunal trying the same that all 
 legal taxes chargeable by law upon the same had been duly paid for each year 
 since the making of the debt or contract ; and that the giving in of the debt 
 for taxation and payment of the taxes should be a condition precedent to a re- 
 cov'ery, is unconstitutional, as far at least as regards debts or contracts made 
 before its passage. Lathrop v. Brown, N. S. x. 638. 
 
 185. A law providing for the expenditure of certain taxes on two distinct 
 roads and for the construction of a third, is repugnant to the 20th section of 
 article 4 of the constitution of Michigan, " providing that no law shall embrace 
 inore than one subject." People ex rel. Estes v. Denahi/, N. S. x. 664. 
 
 186. A statute providing that no person shall sell intoxicating liquors without 
 a permit, to be granted by the county judge, if on application he shall be satisfied 
 that the applicant is a person of " good moral character," and that certain other 
 requisites of the law are complied with, is constitutional. In re Ruth, N. S. x. 767. 
 
 187. The legislature has ho power to compel a city to incur a debt against its 
 will. South Park Corns, v. Chicago, N. S. ix. 718. 
 
 188. Cannot tax dividends by domestic corporations due non-resident owners. 
 Oliver V. Washington Mills, N. S. vi. 58. 
 
 189. Power of legislature to tax corporations on the excess of market Value 
 of their stock over value of estate and machinery. Commonwealth V. Gas-liqht 
 Co., N. S. vi. 384. 
 
 190. Power of legislature to tax corporations upon excess of the market value 
 of its stock over value of its estate. Commonwealth V. Manufacturing Co., N. S. 
 vi. 437. ■' 
 
 191. Where the constitution provides that the corporate authorities of counties, 
 townships, school districts, cities, towns and villages, may be vested with power 
 to assess and collect taxes for corporate purposes, such taxes to be uniform in 
 regard to persons and property within the jurisdiction of the body imposing the 
 
CONSTITUTIONAL LAW. 2l9 
 
 same, anil that the specification of the objects and subjects of taxation shall not 
 deprive the General Assembly of power to require other objects and subjects to 
 be taxed in such manner as may be consistent with the principles of taxation 
 fixed in the constitution, an Act of the General Assembly authorizing the towns 
 in certain counties therein named to levy a tax to pay bounties to persons who 
 sliould thereafter enlist or be drafted into the army of the United States, a vote 
 of the people of such towns having been first taken, is not unconstitutional. 
 Tai/lor v. Thompson^ N. S. vi. 174. 
 
 i92. The Chatham Local Option Law declared the retail of ardent spirits 
 without license to be unlawful, and provides that no license shall be granted if 
 a majority vote of the township is for "no license." Held, that the act is con- 
 stitutional. State V. Morris Common Pleas, N. S. xii. 32. 
 
 193. The legislature, under the power to make police regulations, may pro- 
 hibit the retail of alcoholic stimulants. Id. 
 
 194. Municipal corporations and townships, or the people thereof, acting col- 
 lectively, may be invested with authority to regulate or prohibit the retail of 
 intoxicating drinks. Id; 
 
 195. In matters of pure legislation, one legislature cannot bind another. 
 G'dliland v. Schuyler, N. S. xii. 54. 
 
 1 96. The right to contest an election is not a vested right. Given by one legis- 
 lature, it may be taken away by another. Id. 
 
 197. The constitutionality of local option laws — subject discussed. N. S. xii. 
 129. 
 
 198. The power of the legislature is omnipotent within constitutional limits.. 
 People V. New York Gas-light Co., N. S. xii. 399 and 594. 
 
 199. Though an act of the legislature be unconstitutional, it may by a subse- 
 quent act direct the expenses of such legislation to be paid. Piople ex rel. Kings- 
 land V. Bradley, N. S. xii, 594. 
 
 200. There is a distinction between private citizens and incorporated towns 
 and cities : the latter are subject at all times to the control of the legislature, 
 which has a right as trustee of the public interest to inspect, regulate and control 
 their funds and franchises. Mayor, <f-c., v. Schner, N. S. xii. 729. 
 
 201. Such corporate bodies are created for the public good, and are subject at 
 all times to be controlled by the legislature as to their duration, powers, rights 
 and property. Id. 
 
 202. The Act of the Legislature of Connecticut of 1864, called the Flowage 
 Act, is not unconstitutional. Todd v. Austirt, N. S. viii. 9. 
 
 203. It is no objection to proceedings under the Flowage Act, that the mill is 
 not on the same tract of land upon which the dam is sought to be erected. Id. 
 
 204. The act entitled " An act making the county treasurer of San Joaquin 
 county ex officio tax collector," passed April 2d 1886, was not designed to fill a 
 vacancy in the office of tax collector, but it was to make the treasurer, instead 
 of the sheriff, of San Joaquin county tax collector. In so far as the act pro- 
 vides for the transfer of said ofliice to take place before an election of such treas- 
 urer occurs, it is unconstitutional and void. People v. Kelsey, N. S. viii. 119. 
 
 205. The legislature has the constitutional power by enactment to divest an 
 officer of an ex officio office to which he h.ad been elected and duly qualified, by 
 a repeal of the law under which he became invested therewith ; provided, where 
 such office be created under the constitution, such repeal does not in effect abolish 
 such office. Id. 
 
 206. In such case, however, this power does not extend to the transfer of an 
 ex officio office which, under the constitution, is required to be filled by election, 
 to the incumbent of another office who has not been elected to such ex officio 
 office. Id. 
 
 207. The constitutional right of the citizens of one state to sue the citizens of 
 another in the Federal courts, cannot be defeated by statutory limitation. Cowles 
 V. Mercer, N. S. viii. 247. 
 
 ^08. The Act of July 3d 1863 of the legislature of New Hampshire, so far as 
 it deprives the owner of a dog of a trial by jury, is unconstitutional. East 
 Kingston V. Towle, N. S. viii. 569. 
 
 209. Land taken by the public for a highway and paid for, Cannot be donated 
 to former owner without any consideration. People v. Commissioners of High- 
 ways of Palatine, N. S. viii. 630. 
 
 210. Aright conferred by the constitution is beyond legislative interference. 
 McCafferty v. Guyer, N. S. viii. 694. 
 
220. CONSTITUTIONAL LAW. 
 
 211. The Act of June 11th 1866 (for disfranchising deserters) is unconstitn- 
 tional. McCafferty v. Guyer, N. S. viii. 694. 
 
 212. Where the constitution requires the legislature to keep a journal of its 
 proceedings, parol evidence of such proceedings cannot, it seems, be admitted. 
 People ex rel. Sarleas v. Secretary of State, N. S. iii. 314. 
 
 213. If the members of a legislature disperse and abandon the capital, it is a 
 practical " adjournment" of the body, though no entry thereof is made upon- the 
 journals. Id. 
 
 214. If the executive makes an order for the adjournment of a legislature 
 without the happening of the contingency which would authorize such order, yet 
 if it is acquiesced in and the members accordingly disperse, the session is termi- 
 nated, notwithstanding the order may be illegal. Id, 
 
 215. After a session is terminated in any mode, it cannot be resumed at a 
 future day at a time not fixed by law, without a previous vote of the two houses 
 or by due proclamation by the governor, unless, perhaps, in case where the body 
 is dispersed by sudden insurrection or external force. Id. 
 
 216. The conclusiveness of legislative journals as to legislative proceedings. 
 Note 1 to People v. Auditor, ^c, N. S iii. 343. 
 
 217. If the constitution provide for the adjournment of the legislature by the 
 governor, in case of a disagreement between the two houses as to the time of ad- 
 journment, and the governor, claiming that the contingency has arisen, by pro- 
 clamation declares the houses adjourned, and the latter acquiesce in that act, 
 abandon the capital, draw their pay, and return to their homes, such acquiescence 
 and dispersion constitute an adjournment of the legislature in fact, whether the 
 act of the governer was rightful or wrongful ; and the members cannot resume 
 their session, unless legally convoked again by the governor. People ex rel. 
 Keyes v. Auditor, N. S. iii. 332. 
 
 218. Wh&n the legislative and executive branches of the government, by the 
 adoption of an act, give a construction to the constitution, if the construction 
 thus given is only doubtful, the courts will not hold the act void. Id. 
 
 219. The power of a legislature to enforce the attendance of absent members 
 is plenary, and may, if necessary, be enforced by posse civitatis. Id. 
 
 220. The constitution, as applied to the legislative department of the govern- 
 ment, is a restriction and not a grant of power ; and it is competent for the legis- 
 lature to prescribe the qualifications of electors and the time, place and manner 
 of exercising the elective franchise, when not expressly prohibited from so doing 
 or where the prohibition is not implied from some express provision of the con- 
 stitution. Morrison v. Springer, N. S. iii. 276. 
 
 221. The constitution of Iowa does not prescribe the place of exercising the 
 elective franchise ; that is left with the legislature. Hence an act allowing elect- 
 ors in the military service to vote out of the state is constitutional. Id. 
 
 222. The Supreme Court will declare a law unconstitutional only when it is 
 clearly, palpably and plainly inconsistent with the provisions of that instrument. 
 Id. 
 
 223. A demurrer to a return to an alternative writ of mandamus setting up facts 
 some of which are proveable by legislative journals only, and some by parol evi- 
 dence, so far they would be proper evidence for any purpose. Keyes v. Auditor 
 of Illinois, N. S. iii. 332. 
 
 224. An estate already descended cannot be divested from the legal heirs, and 
 given to the bastard child of an intestate, by a subsequent statute of legitima- 
 tion ; but the legislature may cure the taint of a bastard's blood for the purpose 
 of future inheritance. Killam v. Killam, N. S. i. 18. 
 
 225. By an act of the legislature, passed in 1853, it was provided that George 
 "W. K., son, and Emily M., daughter of George K., shall have and enjoy all the 
 rights and privileges, benefits and advantages, of children born in lawful wed- 
 lock, and shall be able to inherit and transmit any estate whatsoever, as fully 
 and completely, to all intents and purposes, as if they had been, born in lawful 
 wedlock." The persons named were, in point of fact, children of George K., 
 by the same mother, who, after their birth, but before the passage of the act, 
 had been married to a third person, X. At the date of the act all parties were liv- 
 ing. George W. died in 1839, unmarried, and without issue, seised of land 
 which had been conveyed to him by his father. In an ejectment by the father 
 against a grantee of X. and his wife: Held, that the effect of the Act of 1853 
 was to remove, (or all purposes of ir.heritance, the defect of blood of the fhilu- 
 
CONSTITUTIONAL LAW. 221 
 
 ren, ns though at the time of their tirth their parents had been lawfully married ; 
 that the land passed, under the intestate laws of this state, to his natural parents 
 for their joint lives, notwithstanding that the mother was then still the wife of 
 X., remainder to his natural sister, Emily M., in fee ; and therefore that the 
 father was entitled to recover, but only as to an equal moiety of the land. Held, 
 also, that the case was not affected by the general law of 1855, which provides 
 
 Jhat the estate of a bastard, dying unmarried and without issue, shall pass to his 
 
 Tnother absolutely. Kitlamv. Killam, N. S. i. 18. 
 
 226. Helrl, further, that the fact that the conveyance of the land in question to 
 George W. K., by his father, was expressed to be in consideration of natural 
 love and affection, was not material. Id. 
 
 227. Prohibition against legislative allowance of any private claim extends 
 to claims against counties as well as the state. People v. Shennan, N. S. vii. 
 186. 
 
 228. Legislative control over tide-waters — rights of riparian owners to water 
 in front of them. Steamboat Co, v. Transportation Co., N. S. vii. 759. 
 
 229. Legislative power to amend charters ; the subject discussed. N. S. xi. 1. 
 
 230. The Acts of Assembly of Maryland providing that the Baltimore and 
 Ohio Railroad shall pay one-fifth of the lares received for the transportation of 
 passengers over its road between Washington and Baltimore, into the state 
 treasury, for the use of the state, are constitutional, and free from the objection 
 of being capitation taxes. Slate of Maryland v. B. S/- 0. Railroad, N. S. xi. 54. 
 
 231. Even if such one-fifth of the fare was a capitation tax, and unconstitu- 
 tional, the company having collected it could not retain it as against the state, 
 and assumpsit for money had and received would lie by the state to recover it. 
 Id. 
 
 233. The legislature of a state may compel a municipal corporation to con- 
 struct highways or other improvements for public purposes, without the consent 
 of the corporate authorities, or a vote of the citizens. The People v. Flagg, N. 
 S. xi. 80. 
 
 233. So it may direct the corporation to levy a tax or to issue its bonds to pay 
 for such improvement. Id. 
 
 234. The provision of the constitution of the state of New York, art. 7, sect. 
 12, prohibiting the contracting of any debt by or in behalf of the state, unless such 
 debt be authorized hy a law submitted to the people, does not apply to the debts 
 of cities or other subordinate municipal corporations, but to those of the state it- 
 self. Id. 
 
 235. A tax of "so much per ton on the registered tonnage" of vessels owned 
 by the citizens of a state, is within the prohibition of the constitution that " no 
 state shall, without the consent of Congress, lay any duty of tonnage." Coxy. 
 The Collector, N. S. xi. 126. 
 
 236. The Act of 9th March 1868, incorporating the " Green and Barren River 
 Company," and leasing to the said company the river line of navigation, with 
 all the franchises and appurtenances, together with the right to take tolls, &c., 
 is not in violation of the provision of the national constitution forbidding any 
 state, without the consent of Congress, to levy any duty of tonnage. McReynolds 
 T. Smallhvuse, N. S. xi. 164. 
 
 237. Nor is the act in violation of that clause of the Constitution of the United 
 States, which gives Congress the power ' ' to i-egulate commerce with foreign na- 
 tions and among the several states." Id. 
 
 238. The 37th section of article 2d of the state constitution was adopted to 
 prevent amendments to legislative enactments, by which distinct and unconnected 
 matters might be introduced in the same law, and is not to be construed as apply- 
 ing to a case where all the provisions of a statute relate, directly or indirectly, 
 to the same subject, and are not foreign to the subject embraced in the title. Id. 
 
 239. The state legislature having entire control of the funds arising from the 
 collection of Jtolls on the river line of navigation, could appropriate them to re- 
 pairing the locks or dams, in preference to placing them to the credit of the 
 sinking fund ; and when the cost greatly exceeded the revenue derived from such 
 navigation, it was authorized to lease Jhe right to take the tolls, without violating 
 the provision of the state constitution declaring that the General Assembly should 
 have no power to pass laws to diminish the revenues of the sinking fund." Id. 
 
 ?40. It ia settled in Ohio that, independent of a constitutional prohibition, it is 
 within the legitimate scope of legislative power to authorize a municipality to aid 
 
222 COiSfSTITUTIONAL LAW. 
 
 in the construction of a public improvement, such as a railroad, by becoming a 
 stockholder in a corporation created for that purpose, and to levy taxes to pay 
 the subscription. Walker y, Cilij of Cincinnati, N. S. xi. 346. 
 
 241. The public or corporate interest in an improvement, rather than its par- 
 ticular location, determines the question as to the right of taxation for its con- 
 struction ; and therefore the fact that the improvement contemplated will lie 
 mainly outside of the state, can make no difference. Jd. 
 
 242'. The constitution of Ohio provides that " the General Assembly shall 
 never authorize any county, city, town, or township, by vote of its citizens or other- 
 wise, to become a stockholder in any joint-stock company, corporation or associa- 
 tion whatever; or to raise money or loan its credit to or in aid of any such company, 
 corporation or association." An Act of 1869 provided that certain cities should he 
 authorized to construct a line of railroad leauing therefrom to any other terminus in 
 this state or in any other state through the agency of a board of trustees consisting 
 of five persons, to be appointed by the Superior Court of such city, provided that 
 a majority of the city council should, by resolution, have declared such line of 
 railway to be essential to the interest of the city, and the said railway should 
 have received the sanction of a majority vote of the electors of the city, at a 
 special election ordered by the city council, after twenty days' public notice : 
 JJeld, that this act is constitutional. Jd. 
 
 243. The power of the legislature is limited only by the constitutions of the 
 state and of the United States, and by the principles of natural justice. Booth 
 V. Woodbury, N. S. v. 202. 
 
 244. The provision of the constitution of the state against taking private pro- 
 perty for public use without compensation, has no application to the taking of 
 property by taxation. Id. 
 
 245. It is not contrary to natural justice that all the inhabitants of the state 
 should be taxed for gratuities to a part of their number who are called upon to 
 render military service to the general government. Id. 
 
 246. Every citizen is bound to take up arms in defence of his government if 
 necessary, and the selection of a class only, of a certain age, is arbitrary, and 
 based solely upon considerations of expediency. Id. 
 
 247. Although the state, as such, is under no obligation to aid the general gov- 
 ' ernment in raising an army for national defence, yet the general good of the 
 
 people of the state is involved in the maintenance of the general government, 
 and the legislature may properly act for the promotion of this general good. Id. 
 
 248. If the legislature could not tax the people for a gratuity where no possible 
 public benefit would be produced, the case must yet be one of an extraordinary 
 character to justify the interference of the judiciary. Id. 
 
 249. If there be the least possibility that making the gift will be promotive in 
 any degree of the public welfare, it becomes a question of policy and not of 
 natural justice, and the determination of the legislature is conclusive. Id. 
 
 2.50. Powers of state legislatures. Note to Id. 213. 
 
 251. Each house of legislature sole judge of election of its own members. 
 Courts must accept its decisions. People v. Mahancy, N. S. v. 250. 
 
 252. Conflict between act of legislature and constitution must be clear beyond 
 doubt, to render former unconstitutional. Id. 
 
 253. The legislature may provide that judginents shall be payable in the kind of 
 money specified in the contract on which it was rendered. Carpenter v. Atkerton, 
 K. S. iv. 225. 
 
 254. The payment of bounties to volunteers is for a public or municipal pur- 
 pose ; and n law authorizing a municipality to raise money for this purpose is 
 therefore constitutional. Speer v. School Directors of Blairsville, N. S. iv. 661. 
 
 255. Power of legislature to authorize voting beyond the limits of the state. 
 Note 1 to Warren v. Paul, N. S. iv. 161. 
 
 256. Voting outside of state limits. Military Suffrage Act of Michigan. The 
 responsibility of the judiciary in a free state ; subject discussed. N. S. iv. 
 334. 
 
 257. Powers of legislature to pass limitation acts, and what are such. Price 
 V. Bophin, N. S. iv. 571 ; Groesbeck v. Seely, N. S. iv. 572. 
 
 258. If a tax is legal in its inception, there is no limit to the power of the 
 legislature to provide for its collection. LitclifeU v. McComber, N. .S. iv. 319. 
 
 259. Legislature may pass a private act empowering a court to Aeavee. private 
 sale of an intestate's real estate. Florentine v. Barton, N. S. iv. 764. 
 
CONSTITUTIONAL LAW. 223 
 
 260. Construction of the Act q{ Congress of August 4th 1852, granting the 
 riglit of way through public lands. Florentine v. liarlon, N. S. iv. 764. 
 
 261. The power of a state to grant the right of eminent domain to a private 
 corporation. United States v. Bridge Co., 0. S. iii. 603. 
 
 262. Plaintiffs have no ground for complaint against the Acts of Assembly 
 now in question, because they authorize the creation of a public debt, of which 
 they may be required hereafter to pay a part in the shape of taxes, for by taxation 
 nlone can any harm ever come to them. Sharpless v. Major of Philadelphia, 0. 
 S. ii. 27-85. 
 
 263. If it be within the scope of our legislative powers, with consent of the 
 local authorities,- to permit assessments of local taxes for the purpose of assisting 
 the corporation to build railroads, bearing to tax-payers the relation which these 
 roads do, then the laws complained of are unobjectionable. Id. 
 
 264. Taxation is a legislative right and duty which must be exercised by the 
 General Assembly through the medium of laws passed by them under their 
 authority. Id. 
 
 26.5. The power of the Assembly with reference to taxation is limited by their 
 own discretion. For its abuse members are accountable to nobody but their own 
 constituents. Id. 
 
 266. By taxation is meant a certain mode of raising revenue for public pur- 
 poses, in which the community that pays it have an interest ; the right of the state 
 to lay taxes has no greater extent than this. Id. 
 
 267. The act of a legislature authorizing contributions to be levied for a mere 
 private purpose, or for a purpose which, although public, is one in which the 
 people, from whom they are exacted, h.ive no interest, would not be law, but a. 
 sentence commanding a judicial payment of a certain sum by oUe portion or class 
 of people to another — the power to make such a law is not legislative, but judi- 
 cial, and was not given to the Assembly by the general grant of legislative au- 
 thority. Id. 
 
 268. But to make a tax law unconstitutional, when thus giianted, it must be 
 apparent that the community taxed can have no possible interest in the purpose 
 to which their money is to be applied ; this is more especially true if it be a local 
 tax. Local authorities have themselves levied taxes in pursuance of an Act of 
 Assembly. Id. 
 
 269. If therefore making a railroad be a mere private affair, or if the people 
 of Philadelphia have manifestly no interest in the railroads which run to and 
 towards the city from Easton and from Wheeling, then the laws are unconstitu- 
 tional. Id. 
 
 270. But if railroads are not private affairs, but are public improvements, then 
 it is the right and duty of the state to advance commerce and promote the wel- 
 fare of the people, by making them or causing them to be made at the public 
 expense. Id. 
 
 271. If the state declines to make desirable or public improvements, she may 
 permit it to be done by companies. The fact that it is made by a private corpo- 
 ration does not take away its character as a public work. Id. 
 
 272. The right of the company by which it is made to be compensated for the 
 expense of constructing it, by taking tolls for its use, though it gives the corpo- 
 ration an interest in it, it does not extinguish the interest of the public, nor 
 make the work private, because, to say nothing of other advantages, though the 
 public pay toll, still they can travel on it much cheaper than without it. Id. 
 
 273. The state may therefore rightfully aid in the execution of such public 
 works, by delegating to corporations the right of eminent domain, as she always 
 does, or by the execution of the taxing power, as she does very often. Id. 
 
 274. The right of local authorities to tax a particular city for local improve- 
 ment is as clear a right as to lay a general tax for any public purpose whatsoever. 
 Id. 
 
 275. If the state having constitutional power can create a state debt by a sub- 
 scription in behalf of the whole people to the stock of private corporations 
 engaged in making public works, it follows from what has been before said, that 
 she may authorize a city or district to do the same thing, provided such city or 
 district has a special interest in the work to be so aided. Id. 
 
 276. There is not a case in which we can determine as matter of law that the 
 city has no interest in the proposed railroads ; that this is true as matter of fact 
 has not even been asserted in argument, only a little more than intimated. Id. 
 
224 CONSTITUTIONAL LAW. 
 
 277. If the legislature and the Councils decide that the city has an interest 
 large enough to justify the subscriptions, we cannot gainsay this without declar. 
 ing all interest to be flatly impossible, and to do that would be absurd. Sharpless 
 T. Mayor of Philadelphia, 0. S. ii. 27-85. 
 
 278. Finally, if the authorities of the city, in accordance with their charter, and 
 with certain laws supplementary thereto, are about to create a public debt for 
 public purposes in which the city has an interest, it will be as valid and binding 
 as if it had been legally contracted to accomplish any other public purpose for 
 the benefit of the city. Opinion per Black, Ch. J., Woodward and Knox,JJ., 
 assenting ; Lewis and Lowrie, JJ., dissenting. Id. 
 
 279. The prohibition in the tenth section of the first article of the Constitution 
 of the United States, to the effect that no state, without the consent of Oongress, 
 "shall enter into any agreement or contract with another state, or with a foreiiin 
 power," is political in its character and has no reference to.a mere matter of 
 contract or to the grant of a franchise which in nowise conflicts with the power 
 delegated to the general government by the states. Union Branch Railroad v. 
 Tenn. and Georgia Railroad, 0. S. ii. 303. 
 
 280. A corporation can have no legal existence out of the sovereignty by which 
 it is created ; but its existence, as a person capable of contracting, may be recog- 
 nised in another state, and as such it may be there contracted with. Sharpless y. 
 Mayor of Philadelphia, 0. S. ii. 27-85. 
 
 281. The Act of New York of March 26th 1849, commonly called the " Free 
 School Act," under the provisions of which certain district school taxes were 
 levied, is unconstitutional and void. Bradley v. Baxter, O. S. i. 658. 
 
 282. This portion of state sovereignty has not b^en wholly surrendered to the 
 general government. It is surrendered only to the extent and for the purpose 
 specified by the constitution. As respects negroes, imported as slaves, it is sur- 
 rendei-ed only so far as to allow the prohibition of such importation, and as a 
 means to this the removal of negroes unlawfully imported. The power to pre- 
 scribe and to protect the rights of such negroes, after the importation is entirely 
 complete and ended, and they have become mingled with the mass of the popula- 
 tion of a state, is exclusively in the state government, Tlie United States^ v. 
 Brodnax, 0. S. viii. 525. 
 
 283. A law which pi-ovides that after a certain date a majority of the ofiicers 
 of railroad corporations shall reside within the state granting the franchise, under 
 penalty of forfeiture of the charter in case of non-compliance, is constitutional, 
 does not impair the obligation of a contract, and may be enforced against a cor- 
 poration chartered and organized before its passage. Texas v. The South Pacific 
 Railroad Co., 0. S. viii. 78, 
 
 284. The constitution of Texas provides that the legislature may revoke and 
 repeal the charters of all private corporations by making compensation for the 
 franchise ; this provision is not to be construed into a limitation upon the power 
 of the state confining it to that mode of revocation alone. Id. 
 
 285. The system of making city improvements by cities by grading and im- 
 proving streets, and taxing the owners of lots therefor by the front foot, is con- 
 stitutional. Weeks, Appellant, v. The City of Milwaukee, Respondent, 0. S. viii. 
 624. 
 
 286. Acts of legislature authorizing subscriptions by municipal corporations 
 to railroad companies, arc constitutional. Maddox v. Graham, O. S. vii. 747. 
 
 287. The regulation of the school committee of Boston, which requires that 
 pupils in the public schools shall, among other things, ' ' learn the Ten Command- 
 ments, and repeat them once a week," is not a violation of the constitutional 
 provision which secures to the citizen liberty of conscience and of worship. 
 Commonwealth on Complaint of Wall v. Cooke, 0. S. vii. 417. 
 
 288. Constitutional law — the subject discussed. See foot-notes to Killam v. 
 Killam, N. S. i, 30. 
 
 289. Statutes validating informal marriages. Id. 33. 
 
 290. Statutes authorizing sale of propertv of those who are not sui iuris. 
 Id. 34. ■ ■' 
 
 291. It is an invasion by the government upon the faculties ,pf industry pos- 
 sessed by individuals, when it attempts to appropriate to itself any particular 
 branches of industry or any business which is not of a public general character. 
 Herman v. The State, 0. S. iv. 344. 
 
 292. There are certain absolute rights, and the right of property is among 
 
CONSTITUTIONAL LAW. 225 
 
 them, which in all free jrovernmcnts must of necessity be protected from legis- 
 lative interference, irrespective of constitutional checks and guards. Herman v. 
 The State, O. S. iv, 844. 
 
 293. Tlie power of the legislature to declare nuisances. Id. 
 
 294. The legislative or law-making power comprehends full control over ex- 
 isting laws by amendment or repeal, as well as the power of enacting new laws. 
 Id. 
 
 29.5. This high trust of civil authority must, under the constitution of this state 
 (Ohio), continue in full force and complete in its operation, at every session of the 
 legislature, and the General Assembly cannot, by contract or otherwise, at one 
 session impose any restraint, limitation or abridgment on the exercise of the leg- 
 islative power at any subsequent session ; nor can this body, in the enaqtment of 
 a law, provide by contract or otherwise against its amendment or repeal at a sub- 
 sequent session. Plank-road Co. v. Ilusted, 0. S. iv. 213. 
 
 296. Legislative power is an attribute of sovereignty belonging to the people, 
 to be exercised only by their representatives. The extent of the grant of it to 
 the legislature, with its reservations ivnd restrictions, are to bo found only in the 
 constitution itself. The State v. AUmond, 0. S. iv. 533. 
 
 297. That the legislature of Ohio has no constitutional authority, when con- 
 ferring special privileges on a corporation, to abridge or relinquish to any extent 
 or in any manner whatsoever, by contract or otherwise, any portion of the poivcr 
 of taxation over its corporate property, has been settled by solemn adjudication 
 and is not now an open question in this state (Ohio). The Milan ^ Richland 
 Plank-road Co. v. Hasted, Treasurer, 0. S. iv. 213. 
 
 298. The 9th sect, of the charter of this corporation, which specially provides 
 that, in consideration of the expenditures, which the company will necessarily have 
 to incur in making and keeping up its plank-road, the property of the corpora- 
 tion of every kind shall be for ever exempt from taxation, must be construed with 
 reference to the constitutional powers of the legislature, and as operative only to 
 exempt the company from taxation under the authority of any law existing at 
 the time the act of incorporation was passed, but as wholly inoperative as against 
 any subsequent law imposing a tax upon the company. Id. 
 
 299. A law being an imperative rule of action prescribed by the supreme 
 power of the government from the paramount considerations of the public in- 
 terests, cannot in its nature be a contract, inasmuch as it is of the essence of .a 
 contract, that it be an agreement between two competent parties upon «, mutunl 
 consideration, and in relation to a matter which is the legitimate subject-matter 
 of bargain and sale. Id, 
 
 300. The legislature in 1833 chartered the Grand Gulf Railroad and Bank- 
 ing Company, with power " to purchase and possess personal estate of any kind 
 whatever" and " to sell and dispose of the same at pleasure ;" in 1840, the leg- 
 islature enacted that it should not be lawful for any bank in the state to transfer 
 by indorsement any note, &c., and in an action on Such note the fact of a trans- 
 fer might be pleaded in abatement. Held, that the Act of 1840 was constitu- 
 tional and applied to the Grand Gulf Banking Company, inasmuch as the power 
 of transfer was neither expressly granted nor acquired by implication. Murdoch 
 v. Brown, 0. S. vi. 690. 
 
 301 . In 1 760 the legislature of New Jersey authorized certain owners of meadow 
 lands along Little Timber creek to dam the said creek. Such act is constitu- 
 tional and vests an interest : it is more than a mere license, and cannot be re- 
 voked by the state. Glover v. Powell, 0. S. iii. 367, 
 
 302. Where the city of Rochester had become subscribers to the capital stock 
 of a railroad under aspecial Act of Assembly: Held, that the contract was void 
 as being in violation of the constitution of New York. The rights of eminent 
 domain and taxation considered. Clarke v. The City of Rochester, 0. S. v. 289. 
 
 303. The power to tax property in aid of a private corporation, or for the pur- 
 chase of its stock, is not among the ordinary municipal government, and requires 
 special legislation to confel- it, and this legislation is in New York prohibited by 
 the constitution. Per Allen, J. Id. 
 
 304. A state legislature, in the absence of any express constitutional authority, 
 has no power to sell, surrender, alienate, or abridge any of the rights of sove- 
 reignty, such as the right of taxation, so as to bind future legislatures, and any 
 contract to that effect is void. Henry S. Motl et al.. Canal. Commissioners,, y,. The. 
 Pennsy'vania Railroad Company et al., 0. S. v. 623,. 
 
 15 
 
226 CONSTITUTIONAL LAW. 
 
 305. So much of the Act of the Legislature of Pennsylvania, passed May I6(h 
 1857, authorizing the sale of the main line of the public improvements of that state 
 as provides " that if the Pennsylvania Railroad Company shall become the pur- 
 chaser, they shall pay, in addition to the purchase-money at which it (the main 
 line) may be struck down, the sum of $1,500,000, in consideration whereof the 
 said Railroad Company and the Harrisburg Railroad Company shall be discharged 
 by the Commonwealth for ever " from the payment of all tonnage taxes, and all 
 other taxes whatever, except for school, city, county, borough and township 
 purposes," declared unconstitutional and void, and an injunction granted to pre- 
 vent the same from forming part of the terms of the sale. Henry S. Mott eta!., 
 Canal Co7nmissioners, v. The Pennsylvania Railroad Company et al., 0. S. v. 623. 
 
 306. The act in question provided that the sale should be made by the gov- 
 ernor : Beld, that as this was not part of his official duty as the executive of the 
 state, but merely ministerial, the injunction might issue against him. Id. 
 
 307. The holders of the state loan, whether or not having a specified lien on 
 the tolls of the public works, have no right to object to a sale thereof by the 
 state. Id. 
 
 308. An act of the legislature, so far as it atfeoted cases pending, is unconsti- 
 tutional and void. Webster v. Carpen, 0. S. i. 376. 
 
 309. A state may grant the sole right to navigate a river with steamboats, for 
 a term of years, to one person, in consideration of his making improvements in 
 the same, where the river and the navigation is wholly within the state, and can- 
 not be entered from the sea ; another boat cannot interfere with such monopoly 
 by taking out a coasting license. Veasy v. Moore, 0. S. i. 376. 
 
 310. A law may be constitutional -in part and unconstitutional in part ; hence, 
 a law which enacts that railroads shall fence, as to that provision is a reasonable 
 regulation, but where it inflicts a penalty upon an appeal, it is unconstitutional 
 and void. Hudson ^ Ind. Railroad Co.-\. Whitenech, 0. S. v. 214. 
 
 311. The present constitution of New Jersey limits the powers of the legisla- 
 ture, and separates them from those of the judiciary, and adopts the prohibitions of 
 the Constitution of the United States against laws impairing the obligations 
 of contract which existed when the contract was made. Honce, where the legis- 
 lature passed an act for the relief of the creditors of a manufacturing corporation, 
 providing that certain persons should be authorized to sell all property mortgaged 
 for the payment of bonds, at public sale to the highest bidder, free from all in- 
 cumbrances, and after paying certain expenses and costs, to distribute the pro- 
 ceeds to the corporation's creditors, according to the priority of their several 
 liens, it was held, that such legislation was unconstitutional by reason of its im- 
 pairing the obligation of the contract between the mortgagors and the mortgagees, 
 and depriving the mortgagees of a remedy which existed at the time the contract 
 was made. Martin v. Somerville Water-power Co., 0. S. v. 400. 
 
 312. The right of eminent domain is in tlie state, and the 'exercise of this 
 right is nowhere inhibited in the Federal constitution, or in the powers exercised 
 over the public lands. United Slates v. Bridge Co., 0. S. iii. 603. 
 
 313. A state has power to authorize a railroad through the public lands of the 
 United States. Irreparable injury to the public lands will alone justify an in- 
 junction. Id. 
 
 314. It is provided by the constitution of Wisconsin, art. 8, sect. 1, that "the 
 rate of taxation shall be uniform, and taxes shall be levied upon such property 
 as the legislature shall direct." In 1854 the legislature of that state passed an 
 act requiring " all railroad companies whicli were or should be organized within 
 the state," to pay t^ the state treasurer annually, for the use of the state, " a 
 sum equal to one per cent, of the gross earnings of their respective roads." The 
 act furtlier declared, that "this amount of tax shall take the place and he in full 
 of all of the taxes of every name and kind upon said road, and the property be- 
 longing to the said companies, or the stock held by individuals therein ; and it 
 shall not be lawful to assess thereupon any other or further assessment or tax for 
 any purpose whatever." Held, that this act was not unconstitutional, though 
 the annual assessment on railroad companies was to be on income instead of on 
 property, as in other cases, and though the companies were exempted thereby 
 i'rom town, county and district taxes. Milwavkee §■ Mississippi Railroad v. 
 Supervisors of Waukesha County, 0. S. iii. 679. 
 
 315. A state may, by virtue of its general police power, repel from its borders 
 an unacceptable population, whether paupers, criminals, fugitives or liberated 
 
CONSTITUTIONAL LAW. 227 
 
 slaTcs, mill may hence punish her own citizens who thwart this policy of expul- 
 sion by assisting such fugitives. Moore v. The State of Illinois, 0. S. i. 206. 
 
 316. The Illinois Act is not the same as the Act of Congress of February 
 12th 1793. Id. 
 
 317. Every sovereign state, may at its option surrender a criminal to the gov- 
 ernment against whose laws he has offended. In the matter of William Fetter 
 O. S. i. 529. 
 
 318. An amendment to a void law cannot make it valid. Bradley v. Baxter, 
 O. S. i. 658. 
 
 319. Where the constitution authorized the legislature to " pass laws to permit 
 the owners of slaves to emancipate them," it was held not to be an inhibition of 
 the owner's right to emancipate except only under such regulations as the legis- 
 lature might prescribe. Prater's Adm'r v. Darby, 0. S iii. 57. 
 
 320. Where an act has been regularly passed by the legislative power some 
 portions of which are accordant with, and some repugnant to constitutional pro- 
 visions, the former will be valid and the latter void. Fisher v. McGirr, 0. S. 
 ii. 460. 
 
 321. It is competent for the state, by legislative enactment, operating prospect- 
 ively, to determine that articles injurious to public health or morals shall not 
 constitute property, Preston v. Dr,w, 0. S. i. 189. 
 
 322. In determining whether an act of the legislature is constitutional we must 
 look to the body of the constitution itself for the reasons. The general principles 
 of justice, liberty and right not contained or expressed in that instrument are no 
 proper elements to base a judicial decision upon. Sharpless v. The Mayor of 
 Philadelphia, 0. S. ii. 27, 85. 
 
 323. If such an act be a written general grant of legislative power, that if be- 
 ing a law and if not forbidden expressly or impliedly, either by the state or Federal 
 constitution, it is valid. Id. 
 
 324. To make it void it must be clearly not an exercise of legislative authority, 
 or else be forbidden so plainly as to leave the case free from all doubt. Id. 
 
 325. An Act of Assembly authorizing subscriptions by a city to the stock of a 
 railroad corporation, is not forbidden in article 1st, sect. 13th, of the state con- 
 stitution ; that section not being a restriction upon the legislative authority of 
 the two houses, but the bestowal of privilege upon the separate branches. Id. 
 
 326. State insolvent laws, no force beyond the state. Davidson v. Smith, 0. S. 
 Ix. 217. 
 
 327. The legislature of Pennsylvania can authorize a city to subscribe to rail- 
 roads. Amey v. Allegheny City, 0. S. ix. 338. 
 
 328. The regulation of the observance of the Sabbath within the power of the 
 legislature. Lindenmuller v. The People, O. S. ix. 591. 
 
 329. The legislature only has power to suspend the writ of habeas corpus. 
 Ex parte .John Merryman, 0. S. ix. 524. 
 
 330. The legislature of a state miiy vacate the office of a professor in one of 
 its universities, and appoint another, though such professor had been app(»inted 
 under the authority of the state for six years. Head v. The University, N. S. 
 xiii. 707. 
 
 331. The courts have no power to compel the legislature to execute a trust. 
 Supervisors v, Burchell, N. S. iii. 631. 
 
 332. This is not such an injury to plaintiffs' lands, goods or persons, that they 
 are entitled to judicial remedy, for it is agreeably to section 11, article 9. It is 
 no injury at all except on the gratuitous assumption that it is forbidden in some 
 other part of the constitution. Sharpless v. Mayor of Philadelphia, 0. S. ii. 27, 
 85. 
 
 333. Ordinance authorizing erection of party-wall not repugnant to constitu- 
 tions of United States or New Jersey. Such laws are reasonable and useful 
 regulations. Hunt v. Ambruster, N. S. v. 61. 
 
 334. Ex-territorial effect of insolvent laws. See Fessenden v. Willey, N. S. i. 
 56. 
 
 335. The copy of an act, certified by the chairman of each house and signed 
 by the governor, is the sole evidence of the contents of the statute. State v. 
 Young, N. S. v. 679. 
 
 336. A state legislature has power to impose a tax on savings banks on account 
 of their depositors, founded on the amount of their deposits. Commonwealth >-. 
 PeopWs Savings Bank, N. S. ii. 767. 
 
228 CONSTITUTIONAL LAW. 
 
 VIII. Right of Free Passage from State to State. 
 
 3.37. Special state tax on railroad companies for passengers carried oat of the 
 . state by them is not void as a duty on exports nor as a regulation of commerce, 
 but it is in derogation of the Federal government's right to require the presence 
 and service of its citizens at any point where the functions of government are to 
 be performed, and also of the citizen's right of free access to the seat of govern- 
 ment or any public Federal offices. Crandall v. Nevada, N. S. vii. 440. 
 
 IX. Validity op Laws depending on a Vote op the People. 
 
 338. A legislative body may provide by enactment for the happening of con- 
 tingent or uncertain events, but such provision must be made to take effect inde- 
 pendent of any decision of an extraneous power, such as a decision at the ballot- 
 box bv the people upon the expediency of the act itself. Bradley v. Baxter, 0. 
 S. i. 658. 
 
 339. By the theory of the New York and all other American constitutions, 
 assuming a representative principle as the foundationof government, the legisla- 
 tive power is vested in special bodies, which precludes any other body from ex- 
 ercising the same functions by delegation. Id, 
 
 340. The power of enacting general laws cannot be delegated by the legislative 
 body even to the people from whom all governmental powei's originally emanated. 
 Per Douglass. J., all the judges assenting. People v. Collins, 0. S. ii. 591. 
 
 341. Court bound to take cognisance of questions involving the constitution- 
 ality of election laws. Chase v. Miller, N. S. ii. 146. 
 
 342. An act authorizing the people of a town to decide whether they will sub- 
 scribe its bonds in aid of a railroad is not in violation of the constitution of New 
 York and is binding. Town of Queensbnry v. Culver, N. S. xiii. 652. 
 
 X. Taxation. 
 
 343. After a tax and the penalties which have accrued from its non-payment, 
 have been repealed by statute, the tax may be re-imposed, but the penalties cannot. 
 Dixon V. The Mayor of Jersey City, N. S. xiii. 390. 
 
 .344. Penalties may be imposed for future delinquencies, as a means of collect- 
 ing a tax, but to impose them for past omissions would be confiscation and not 
 taxation . Id. ' 
 
 345. The legislature cannot leave it to a board of commissioners to determine 
 in what proportion the expense of opening a public avenue shall be imposed on 
 the wards of a city. Gaines v. Hudson County Commissioners, N. S. xiii. 390. 
 
 346. The act of taxation must distribute the burden, /rf. 
 
 347. A landowner who is injured by the laying out of an avenue need not 
 wait until his property is actually appropriated before seeking redress. Id. 
 
 348. A court cannot pronounce a tax unconstitutional on the mere ground of 
 injustice and inequality. Weber v. Reinhard, N. S. xiii. 522. 
 
 349. Where a municipal corporation purchased the franchises of a water com- 
 pany, one of which authorized it " to lay assessments on every dwelling in n, 
 street, where pipes are laid and collect the same," though it may have been un- 
 constitutional for the company, it is not for the corporation. Allentown v. Henry, 
 N. S. xiii. 522. 
 
 350. Such assessment is a local tax for a local benefit. Id. 
 
 351. An Act of Assembly must violate some prohibition of the state or Federal 
 constitution before it can be declared unconstitutional. Butler's Appeal, N. S. 
 xiii. 522. 
 
 352. The legislative power of taxation may be delegated to a municipal cor- 
 poration. Id. 
 
 353. Classes of property as well as classes of persons may be exempted. Id. 
 
 354. A state cannot impose a tonnage tax on vessels owned in foreign ports. 
 Peete v. Morgan, N. S.xiii. 707. 
 
 XI. Prohibition op the Manufacture and Sale op Liquors. 
 
 355. The usual and ordinary legislation of the states regulating or prohibiting 
 the sale of intoxicating liquors raises no question under the Constitution of the 
 United States prior to the fourteenth amendment of that instrument. Bartemeyer 
 V. Stafe of Iowa, N. S. xiii. 220. 
 
 356. The right to sell intoxicating liquors is not one of the privileges and im- 
 munities of citizens of the United States which by that amendmept the states 
 were forbidden to abridge. Id. 
 
 357. But if a case were presented in which a person owning liquor or other 
 
CONSTITUTIONAL LAW. 229 
 
 property at the time a law was passed by the state absolutely prohibitinj; any sale 
 of it, it wottld be a very grave question whether such a law would not be incon- 
 sistent with the provision of that amendment which forbids the state to deprive 
 any person of life, liberty or property, without due course of law. Bartemei/er v. 
 State of Iowa, N S. xiii 220. 
 
 358. While the case before us attempts to present that question, it fails to do 
 it, because the plea, which is taken as true, does not state, in due form and by 
 positive allegation, the time when the defendant became the owner of the liquor 
 sold ; and secondly, because the record satisfies us that this is a moot ease, made 
 up to obtain the opinion of this court on a grave constitutional question, without 
 the existence of the facts necessary to raise that question. Id. 
 
 359. In such a case, where the Supreme Court of the state, to which the writ 
 of error is directed, has not considered the question, this court does not feel at lib- 
 erty to go out of its usual course to decide it. Jd. 
 
 360. Under the 27th section of the statute with regard to intemperance, which 
 provides that "no action shall be maintained for the recovery or possession of 
 spirituous liquors or the value thereof, except in cases where persons owning or 
 possessing such liquors, with lawful intent, may have been illegally deprived of 
 the same," there can be no recovery in an action of tyespass for the value of 
 liquors taken, where the same were kept for illegal sale ; and this provision of 
 the statute is constitutional and valid. Oviati v. Pond, N. S. i. 188. 
 
 361. The legislature has power as a police regulation to prohibit the sale of 
 intoxicating liquor, subject only to the laws of the United States regulating im- 
 ports ; and these protect it only in the hands of the importer in the original cask 
 or package. State v. Allmond, 0. S. iv. 533. 
 
 362 Though a state is bound to admit an article thus imported under the laws 
 of Congress, it is not bound to find a market for its sale. Id. 
 
 363. When sold by the importer in the original cask or package, or when 
 broken up for retail sale, it becomes subject to the state laws, and may be taxed, 
 or the sale of it prohibited. Id. 
 
 364. Property in an article is the right to have and use it subject to law. The 
 right of sale is not an essential ingredient that may not be separated from the 
 ownership ; and a law regulating or prohibiting the sale does not take away any 
 vested right of property. Id. 
 
 365. In the social state, individual property is necessarily held subject to such 
 laws of regulation as are required for the well-being of society ; and in a sove- 
 reign state, the legislative, having the power to pass such laws, must judge of its 
 limits and extent. Id. 
 
 366. The Act of 1 855 prohibiting any sale of intoxicating liquor for any other 
 than "mechanical, chemical and medicinal purposes only, and pure wines for 
 sacramental use," saving the rights of the importer of foreign liquor under the 
 Importation laws, is constitutional. Id. 
 
 367. A law which absolutely forbids the people of the state to manufacture 
 and sell whiskey, ale, porter and beer, for use as a beverage, or at all, except for 
 the government, to be sold by it as medicine, and absolutely prohibits the use of 
 these articles as a beverage, is unconstitutional. Herman v. The State, 0. S. iv. 
 344. 
 
 368. From the terms context and purpose of the Massachusetts enactment 
 commonly known as the " Maine Liquor Law," it is intended to make the keep- 
 ing and selling liquors unlawful, and to bring the off'enee within the jurisdiction 
 of the local magistrates. Fisher v. McGirr, 0. S. ii. 460. . 
 
 369. It is competent for the law-making power to declare the possession of 
 certain articles of property, held in particular places and under particular circum- 
 stances, to be unlawful, and the property so held may be declared forfeited ; but 
 such unlawfulness and forfeiture must be established and authorized in a manner 
 consistent with the principles of justice and the established maxims of jurispru- 
 dence, and must not be repugnant to the provisions of the declaration of rights 
 or the constitution. Certain provisions of the statute under discusgion are so i-e- 
 pugnant, therefore held unconstitutional and void. Id. 
 
 370. Sects. 18, 19, 20 of the Michigan law, entitled " An act prohibiting the 
 manufacture of intoxicating beverages and the traffic therein," approved Febru- 
 ary 1 1th 1853, are void because an attempted delegation of legislative power to 
 the people. People v. Collins, O. S. ii. 591. 
 
 371. Powers of local legislation or rather powers of administrative legislation 
 are not within the principle, and may be delegated ; neither are enactments in 
 
230 CONSTITUTIONAL LAW. 
 
 the natare of proportions where mere acceptance calls the law in force. People v. 
 Collins, O. S. ii. 591. 
 
 XII. Laws Unconstitutional foe want of the Proper Form or because tp 
 Defective Titles. 
 
 372. The 5th section of the Act of 1809 (Prince 117), and the 3d section of 
 the Act of 1823 (Prince 183), declared to be unconstitutional and void, on the 
 ground that they contain matter different from what is expressed in the titles of 
 the acts to which they respectively belong. Prothro v. Orr, O. S. i. 612. 
 
 373. Because the complaint setting out the offence is not required by the act to 
 do it fully, substantially or formally, and makes no provision for indictment or 
 information, on which issue can be joined and trial had. Fisher v. McGirr, 0. 
 S. ii. 460. 
 
 XIII. Qualification op Voters, and herein of Voting outside the Lisiits 
 OP the State. 
 
 374. A provision confining the right of voting to " male citizens of the United 
 States" is no violation of the Federal Constitution. Minor v. Bappersett, N. S. 
 xiv. 522. 
 
 375. What " due process of law" includes. A deserter is not deprived of his 
 right to vote by the Act of 1865, until adjudged a deserter by court-martial. 
 JEuber v. Reily, N. S. vii. 57. 
 
 376. Election districts within the meaning of the Pennsylvania statute, denote 
 subdivisions of territory, marked out by known boundaries, pre-arranged and 
 declared by public authorities ; and election districts mean in the constitution just 
 what they mean in the statute. Chase v. Miller, N. S. ii. 146. 
 
 377. The term "residence" in the constitution is the same as domicil— a word 
 which means the place where a man establishes his abode, makes the seat of his 
 property, and exercises his civil and political rights. Id. 
 
 378. Tlie right of a soldier to vote, under the constitution, is in the district 
 where he resided at the time of his entering the military service. Id. 
 
 379. The 43d section of the election law of 2d July 1839, allowing soldiers to 
 vote outside of the boundaries of the state, is in direct conflict with the 3d article 
 of the constitution of Pennsylvania, and is, therefore, null and void. Id. 
 
 380. The constitution of Connecticut provides for the time of holding the an- 
 nual election. And it also provides the place, viz. : in an "elector's meet- 
 ing," composed of the electors in the several towns, duly warned, convened, or- 
 ganized and held for that purpose. These provisions, with other incidental and 
 accessary provisions in the same instrument, leave no room for doubt that any 
 act of the legislature authorizing the votes of electors to be taken at any othor 
 place, or in any other manner, does conflict with the explicit and unequivocal 
 provisions of the constitution, and is therefore void. Opinion of Supreme Court, 
 Sfc, N. S. ii. 460. 
 
 381. The constitution of New Hampshire provides for elections by the citizens 
 at certain times and in certain places therein fixed ; and a law authorizing the 
 casting of the votes in any other manner would be unconstitutional. Opinions 
 of the Judges, N. S. ii. 740. 
 
 382. A person having less than one-fourth of black or African blood is a white 
 person within the meaning of the constitution of Michigan, and entitled to vote, 
 if otherwise qualified. The People v. Dean, N, S. v. 721. 
 
 XIV. United States Stocks and Loans, and their Liability to State 
 Taxation. 
 
 383. The legislature of New York, by an Act of 1863, provided that banks 
 shall be liable to taxation on a valuation equal to the amount of their capital 
 stock paid in, or secured to be paid in, and their surplus earnings less ten per 
 cent., deducting the value of their real estate. ZTeW, that the meaning of the 
 words " capital stock paid in, or secured to be paid in," is the original capital 
 of a bank, as distinguished from that which it possesses when a given tax is laid. 
 People Vf Commissioners of Taxes. N. S. iii. 535. 
 
 384. The hank of C. having had a capital actually paid in of $750,000. had 
 invested about one-fourth of it in real estate, and the balance in the securities of 
 the United States : Held, that the bank was properly taxed, under the state law, 
 on the whole amount of its original capital. Id. 
 
 385. The act in question does not conflict with the constitution of the state, or 
 of tlic United States. Id. 
 
 386. Powerof states indirectly to tax United States securities. Note to Id. 558. 
 
CONSTITUTIONAL LAW. 231 
 
 387. The New York law of 1863, providing that banks shall bo liable to tax- 
 ation on a vatnation fqual to the ainnunt of their capital block paid in or secured to 
 be paid in, is in substance a tax upon the property of the bank, and so far as the 
 capital of a bank is invested in the securities of the United St.ites, the act is un- 
 constitutional and void. The People v. Commissioners of Taxes, N. S. iv. 277. 
 
 388. The " specific contract law " of the state of California is valid and does 
 not conflict with the Act of Congress of July 1 1th 1SG2, making treasury notes 
 lawful money and a legal tender in the payment of private debts. Carpenter v. 
 Alherton, IS. 'S- iv. 225. 
 
 389. Tax may be assessed upon whole amount of the deposits of a savings 
 bank, under stats. 1862, c. 224, and 1863, c. 164, though a portion of its funds 
 invested in United States loans. Commonwealth v. Savings Ins., N. S. vi. 511. 
 
 390. By the second section of the Act of Congress, passed February 25th 1 862, 
 it is provided that " all stocks, bonds and other securities of the United States, 
 held by individuals, corporations, or associations within the United States, shall 
 be exempt from taxation by or under state authority." The effect of this section 
 is to exempt from taxation, under the laws of a state, all stocks, bonds and other 
 securities issued liy the United States after the passage of the act. The Peop'.e 
 ex rel. The Hanover Bank v. The Commissioners of Taxes, N. S. ii. 31. 
 
 391. The decision of the Court of Appeals, in the case of The People ex rel. 
 The Bank of the Commonwealth, 23 N. Y. 192 (1 Am. Law Reg. N. S. i. 81), is 
 authority as to cases coming within its scope. By force of that decision, securi- 
 ties of a like nature, issued belbre the passage of the act in question, and owned 
 by a resident of the state, are not exempt from taxation under state laws, if no 
 unfriendly discrimination to the United States, as bocrowers, is applied by the 
 state law ; and property in United States stock is subjected to no greater burdens 
 than property in general. People v. Commissioners of Tuxes, N. S. ii. 31. , 
 
 392. Congress has no power, by retrospective legislation, to withdraw from 
 state taxation stocks and other like securities, issued by the United States, 
 already subject to such taxation, and so far as the Act of February 25th 1862, 
 exempts from state taxation United States securities previously issued, it is extra 
 constitutional and inoperative. Id. 
 
 393. The stock of the United States is not subject to state taxation. The 
 case of Weston v. City Council of Charleston, 2 Peters 449, commented upon 
 and followed. The People ex rel, Bank of Commerce v. The Commissioners of Taxes, 
 N. S. ii. 614. 
 
 394. Powers granted to Congress by the Constitution can only be executed 
 by means or by "instruments" or " machinery." Note to People v. Commis- 
 sioners of Taxes, N. S. ii. 38. 
 
 395. Power of states to tax United States securities. Id. 
 
 396. Stock in the public debt of the United States, whether owned by individ- 
 uals or by corporations, is taxable under the laws of state. The People v. The 
 Commissioners of Tuxes, N. S. i. 81. 
 
 397. The taxation, by the state, of property invested in a loan to the Federal 
 government, is not forbidden by the Constitution of the United States, where 
 no unfriendly discrimination to the United States, as borrowers, is applied by the 
 state law, and property in its stock is subjected to no greater burdens than pro- 
 perty in general. Id. 
 
 398. Whether Congress, for the purpose of giving effect to its powers to bor- 
 row money, and of aiding the public credit, may constitutionally enact that a 
 .stock to be issued by the Federal government shall be exempt from taxation, 
 qicere. Id. 
 
 399. The cases of McCullough v. Maryland, 4 Wheat. 116; Osborn v. United 
 States Bank, 9 Id. 738, and Weston v. The City of Charleston, 2 Peters, exam- 
 ined and distinguished. Id. 
 
 400. The Act of Congress of June 3d 1864 authorizes the taxation by the 
 states of shares in the national banks, with this limitation : " that the tax so im- 
 posed under the laws of any state upon the shares of the associations authorized 
 by this act shall not exceed the rate imposed upon the shares of any of the banks 
 organized under the authority of the state where such association is located:" 
 Held, that a state law, providing for the taxation of the shares of the national 
 banks and for the taxation of the capital of state banks, but not of the shares, 
 did not conform to the limitation in the Act of Congress. Van Allen v. Nolan, 
 N. 8. V. 609. 
 
232 CONSTITUTIONAL LAW. 
 
 401. The above 'Act of Congress authorizes the shares in national banks tn he 
 taxed by state authority, irrespective of the amount of capital which the bank 
 itself may have invested in the bonds of the United States. Van Allen v. Nolav, 
 N. S. V. 609. 
 
 402. The minority of the court dissent from this view, holding that the states 
 may tax shares in a national bank only so far as its capital is not invested in 
 United States securities. Id. 
 
 40.3. As a rule, the power of taxation is a concurrent power. Congress may 
 withhold the power, and; by virtue of its paramount authority, exclude the states, 
 or it may leave the states free to act. An exception to the rule excludes the 
 states from taxing the means, agencies, or instruments of the general govern- 
 ment. Id. 
 
 404. Qucere: Has Congress power, under the constitution, to authorize state 
 taxation of national securities, directly or indirectly ? Id. 
 
 40.5. Qucere: Can states, whose policy does not allow the organization of 
 banks and provide for the taxation of the shares, lawfully tax shares of the na- 
 tional banks ? Id. 
 
 406. All securities issued by United States exempt from state taxation, whether 
 by express terms in the Acts of Congress or not. People v. Assessors of Barton, 
 N. S. V. 383, 
 
 407. Power of Congress over taxation of shares in national banks. Id. 
 
 408. A farm divided by a townsliip, borough, or city line is taxable where the 
 manpion-house is located. Bausman v. City of Lancaster, N. S. v. 383. 
 
 409. Hence, where the whole of a farm with the mansion-house was situated 
 in a township, with the exception of a small portion lying within the line of an 
 .idjoining city, the whole farm was taxable in the township, and the assessor of 
 the city had no power to assess that portion within its limits. Id. 
 
 410. A tax on a stockholder, for the stock held by him in one of these banks, 
 is a legitimate and proper subject of state or municipal taxation, and the stock- 
 holder is liable to be so taxed, under the laws of the state. City of Utica v. 
 Churchill, N. S. V. 122. 
 
 411. The laws of the state, and not the laws of Congress, are to furnish the 
 guide by which to ascertain whether the stock of the national banks can be taxed, 
 and the place and manner of taxing them. Id. 
 
 412. The issue of treasury notes is warranted by the Constitution of the United 
 States at all times, in the discretion of Congress, as a medium for the payment 
 of taxes under the taxing power, and as a form of security to the public creditors 
 for money loaned under the power " to borrow money." Hague v. Powers, N. 
 S. ii. 497. 
 
 413. The form, size and denomination of such notes, and the making of them 
 in the similitude of bank bills, and payable to the bearer, so as to be transferable 
 by delivery, and go into circulation as money, are matters entirely within the 
 discretion of Congress. Id, 
 
 XV. State Loans. 
 
 414. A state loan reimbursable at the pleasure of the state after twenty years has 
 no term of payment until the legislature has fixed it by law. People ex rel., ^c, 
 V. Deniston, N. S. i. .58. 
 
 415. And where such a loan was made, under a law passed before the consti- 
 tution of 1846, for the benefit of the Long Island Railroad Company, an act 
 giving to its holders the option of having it made payable in 1876, is not in vio- 
 lation of the constitutional prohibition of the loan of the state credit to corpora- 
 tions. Id. 
 
 XVI. Questions affrctino National Banks. 
 
 416. Shares in national banks can be taxed for state, county, or municipal 
 purposes only when the state legislation authorizing such taxation conforms to 
 the provisos of the 41st section of the National Bank Act of June 1864 Brad 
 lei/ V. The People, N. S. vi. 466. 
 
 417. The second proviso of the 41st section of the National Bank Act of 
 Jnne 1864, construed in the case of Bradley v. The People, and applied to the 
 laws of Illinois. 7'he People y. Commissioners, N. S. vi. 467. 
 
 418. The first proviso in said section, construcil and expounded in the case of 
 The People ex rel. Duer v. Commissioners. Wright v. StiU N. S. vi. 47i 
 
 419. Taxation by a state of shares in national'banks must conform strictly to 
 
CONSTITUTIONAL LAW. 233 
 
 the requirenients c.f the National Bank Act of June 1864. Frazer v. Siebern, 
 K. S. vi. 47,"). 
 
 420. The Statute of Ohio of April 2il 1865, taxing shares in national hanks, 
 imposes a higher rate of taxation on such shares than on the shares of banks 
 authorized by the state, and is tlierefore unconstitutional. Id. 
 
 421. The subject of taxation of national banks discussed. Id. 
 
 422. Cases upon the taxation of national banks considered. Note to Id. 483. 
 
 423. The shares of stockholders in national banks can only he tiixed hy a 
 state in strict conformity with the provisions of the National Banlc Act of Juno 
 1864. Markoe T. Nartran/t, N. S. vi. 487. 
 
 424. A state law directing the cashiers of all banks, national or state, to col- 
 lect annually from every stockholder a tax of one per cent, on the par value of 
 the stock held by him, and pay the same into the state treasury, does not conform 
 in the mode of taxation with the requirements of the National Bank Act of June 
 1864, and is therefore void. Id. 
 
 425. National banks under Acts of 1863 and 1864 are lawfully created. Utica 
 T. Churchhill, N. S. v. 122. 
 
 426. National banks constitutional. People v. Assessors of Barton, N. S. v. 
 441. 
 
 427. A state has no authority to impose such a duty upon an officer of a na- 
 tional bank. Marloe v. Hartranft, N. S. vi. 487. 
 
 428. An injunction will lie from the Supreme Court of Pennsylvania to re- 
 strs^in the auditor-general and treasurer of the state from collecting a tax under 
 an unconstitutional law. Id. 
 
 429. Taxation of national banks for their real estate and shares. Bank v. 
 Portsmouth, N. S. vi. 314. 
 
 430. Shares in, whether state or national, taxable by state, though capital in- 
 vested in United States bonds. Van Allen v. Assessors; Peoples. Commissioners, 
 N. S. vi. 436. 
 
 XVII. Legal Tender. 
 
 431. The issue of treasury notes to go into circulation as money is warranted 
 by the constitution, and their form, size and denomination are entirely within the 
 discretion of Congress- Hague v. Powers, N. S. ii. 497. 
 
 432. Custom of banks to pay coin for checks on balances not admissible. 
 Thompson v. Riggs, N. S. vii. 122. 
 
 43.3. The legislature may provide that judgments shall be payable in the kind 
 of money specified in the contract on which it was rendered. Id. 
 
 434. Constitutionality of the Legal Tender Act discussed. Note to Carpenter 
 V. Atherton, N. S. iv. 233. 
 
 435. Legal Tender Acts are constitutional. Van Susan v. Kanouse, N. S. iv. 
 571. 
 
 436. Constitutionality of acts authorizing legal tender notes. Note to War- 
 ren V. Paul, N. S. iv. 162. 
 
 437. Power of a state to enforce payment of debts in specie, notwithstanding 
 the Legal Tender Act. Id. 165. 
 
 438. By a lease of property in British dominions, money was payable in 
 "dollars and cents of United States currency." A tender of United States 
 legal tender notes held not sufficient. Nova Scotia Tel. Co. v. American Tel. Co., 
 N. S. iv. 365. 
 
 439. The fare of a passenger on a railroad is a debt within the Acts of Con- 
 gress called the Legal Tender Acts, althongh it be demanded and paid before 
 the passenger has been carried any part of the way. Lewis v. Railroad Co., N. 
 S. vi. 703. 
 
 440. Where a certain sum per mile has been established as the legal fare for 
 carrying a passenger on a railroad, the company is bound to accept payment of 
 the fare in United States notes at their legal value, Id. 
 
 441. Legal Tender Act of Congress, constitutional. Carpenter v. Bank, N. 
 S. vi. 448. 
 
 442. Legal tender notes valid tender in payment of bills of a state hank. Id. 
 
 443. Congress may issue treasury notes and make them lawful money and a, 
 legal tender. ShoUe.nberger v. Brinton, N. S. vi. 636. 
 
 444. Act of Congres.s of February 25th 1862, is constitutional. Id. 
 
 445. A ground-rent is a debt thereunder. Id. 
 
 446. Ground-rent payable in lawful silver money, redeemable in such notes. 
 Id. 
 
234 CONSTITUTIONAL LAW. 
 
 447. So Imlf-3"carly rent, payable in lawful silver money, each dollar weigh- 
 ing IG pwt. 6 gr. at jjpast. Mervine v. Sailor, N. S. vi. 637. 
 
 448. So ground-rent payable in lawful money. Davis r. Burton, Kroener v. 
 Colhoun, N. S. vi. 637. 
 
 449. So a certificate cf deposit of gold payable in like funds- Sandford v. 
 Ilaijs:, N. S. vi. 637. " • 
 
 450. So a note for sum of money marked " |14,145 specie." Graham v. Mar- 
 shall, N. S. vi. 637. 
 
 451. So a note for " dollars in gold." Laughlin v. Harvey, N. S. vi. 
 
 637. 
 
 452. Bond for payment of gold coin of certain fineness, notwithstanding law 
 making anything else legal tender, not payable in greenbacks. Dutton \. Pail- 
 aret, N. S. vi. 637. 
 
 453. As a medium of payment no distinction between, and gold coin. Appel 
 V. Woltman, N. S. vi. 248. 
 
 454. The Acts of Congress called the Legal Tender Acts, do not merely con- 
 fer a privilege on debtors for their benefit, but are measures of public policy, and 
 the right under them to pay in any lawful money cannot be waived, even by ex- 
 press consent. Buchegger v. Schultz, N. S. v. 95. 
 
 455. Defendants executed a bond with warrant of attorney for $28,000, payable 
 "in specie, current gold and silver money of the United States," and " that no 
 existing law or laws, and no law or laws which may be hereafter enacted, shall 
 operate, or be construed as operating to allow payment to be made in asy other 
 money than that above designated ;" " the said obligors expressly waiving the 
 benefit derived or to be derived from such law or laws." Judgment was entered 
 and fi. fa. issued, in which the sheriff was required to levy the debt, and interest 
 "in specie, current gold and silver money." The court, on motion, set aside 
 the fi. fa. and held, that the fi. fa. was irregular ; as a final judgment is necessarily 
 for lawful money, and is payable in any money which the law has made a legal 
 tender. Shoenberger v. Watts, N. S. i. 553. 
 
 456. By the charter of the Bank of the State of Indiana, it was provided, that 
 the bank should not at any time suspend or refuse payment in gold or silver, of 
 any of its notes, bills or obligations, &c., and that if it should neglect or refuse 
 to do so, then the holder should be entitled to recover the amount with twelve 
 per cent, interest. On the 1st of April 1 862, the plaintifi' demanded of a branch 
 bank payment of its notes in coins, which was refused, but the amount tendered 
 in United States legal tender treasury notes. Held, (1.) That the provison in 
 the charter in question did not amount to a restriction of the right of the bank 
 to avail itself of the privilege of using anything else as money, as a tender, which 
 the United States, by their laws, might legally declare to be such. (2.) That 
 Congress had not the constitutional power to declare paper money a legal tender ; 
 but (3.) That considering that the legislative and executive departments of the 
 Federal government had decided in favor of the existence of such a power, 
 and what the consequence of an opposite decision at the present time by 
 the court would be, they would hold the treasury notes to be a legal tender until 
 the Federal courts should determine otherwise. Reynolds v. Bank of the Slate 
 of Indiana, N. S. i. 669. 
 
 XVIII. Of Taking Pkivate Property, and herein when it mat be taken 
 WITHOUT Compensation. 
 
 457. Private property cannot be taken for public use until its value has been 
 ascertained in a legal manner, and such value paid or secured to the owner. 
 Bohlman v. G. B. ^ Lake Pepin Railroad Co., N. S. xii. 187. 
 
 458. .An attempt to enter on land without the damage for its taking having 
 been ascertained, will be restrained by injunction. Id. 
 
 459. The statute of Wisconsin which provides that "no injunction shall be 
 granted to prevent the use of land by a railway company, until final judgment 
 IS entered for damages," applies only to cases where the "land has been occupied 
 by the owner's consent. Id. 
 
 460. The fact of the road being surveyed and located without protest, gives 
 the company no right to permanently occupy the land. Id. 
 
 461. .An act of the legislature authorizing private property to be taken for » 
 public school-house site is not in conflict with the provision of the constitution 
 which prohibits the taking of private property except for public use. In this 
 case the use, though local, is public. School Board v. Hachnan, N. S. xi. 527. 
 
CONSTITUTIONAL LAW. 235 
 
 462. The legislature can empower a railroad corporation to cross a turnpike 
 road, on making compensation, witliout impairing a contract within the meaning 
 of the constitution. Turnpike Road v. Union Railroad, N. S. xi. 530. 
 
 463. Where the legislature authorizes a railroad company to construct a road, 
 upon paying damages to landowners, and in building the road a cut is made 
 through an embankment, whereby the river flows in and deposits gravel and 
 stones on the land of one who does not own the embankment, such 'flowage is a 
 taking within the constitution, and if the legislature intended it without compen- 
 sation to the owner of the land, it is unconstitutional. Eaton v. Boston, Concord 
 ^- Montreal Railroad Co., N. S. xi. 720. 
 
 464. Under that clause in our constitution whicli provides for the taking of 
 private property for public use, the use must be such as is public in its character, 
 and not public merely because it is declared to be such, -East St. Louis v. St. 
 John, N. S. ix. 56. 
 
 465. Private property cannot be taken by the state, without the owner's con- 
 sent, for the private use of another person, even if compensation be made. Orion 
 v. Hart, N. S. ix. 122. 
 
 466. When individual property is condemned for public use and damages as- 
 sessed therefor, the land cannot be occupied until damages are paid. Soutk Park 
 Corns. V. Williams, N. S. ix. 711. 
 
 467. The means of making compensation to tlie owners of land condemned 
 for the park, is provided by the Act of February 1869 of Illinois. Id. 
 
 468. Legislature may authorize construction of public works without compen- 
 sation to property injured if not actually taken. Arnold v. Railroad Co., N. S. 
 vii. 380. 
 
 469. Tublic bridge belonging to county not within the constitutional prohibi- 
 tion. Freeholders, ^c., v. Turnpike Co., N. S. vii. 759. 
 
 470. But a charter to turnpike company requiring it to pay owners of lands 
 includes county bridge. Id. 
 
 471. Even if damages for taking such bridge were only nominal the county 
 is entitled to restrain the use of it until damages are assessed and title has passed 
 to the company. Id 
 
 472. Legislature has no power to transfer one man's property to another with- 
 out his consent, even with compensation. It is not an exercise of the law-mak- 
 ing power given to the legislature. Coster v. Tide-water Co., N. S. vii. 760. 
 
 473. Grant of power to one man to improve property of another without his 
 consent, at compensation to be fixed by third person, is void as beyond the powers 
 of the legislature. Id. 
 
 474. Private property may be taken- by eminent domain for public use on ade- 
 quate compensation, but the use meant is by the government itself or the general 
 public or some portion of it. Id. 
 
 475. Whether the use in question is a public use is a judicial question. Id. 
 
 476. Eminent domain and taxation may be employed to reclaim large tracts 
 of land, and the question of using these powers for such purpose is with the leg- 
 islature, but to compel the owner to bear the expense of improvement beyond 
 his particular advantage is taking his property without compensation and un- 
 constitutional. Id. 
 
 477. The provision of the constitution of Illinois, " that private property shall 
 not be taken or damaged for public use without just compensation," must bo so 
 construed as to protect the interests of private citizens, while guarding the com- 
 mercial interests of the country and the general good of the public. Stone ». 
 Fuirburt/ Railwaij Co., N. S. xiv. 74. 
 
 478. In order to enable a party to recover damages resulting from the exercise 
 of the power of eminent domain, he must show that his property has sustained 
 a direct and physical injury. Id. 
 
 479. The throwing of smoke and cinders from a railroad engine moving upon 
 its track, upon residence property, constitutes a direct physical injury, for which 
 the plaintiff may recover Id. 
 
 480. Where land has been taken under the right of eminent domain, and a 
 question is pending as to amount of compensation* to be paid, the owner is en- 
 titled to possession until it is ascertained and paid. Meltler v. Easton S/- Amboy 
 Railroad Co., N. S. xiv. 317. 
 
 481. Under tlie constitution the president's power of pardon does nut include 
 
236 CONSTITUTIONAL LAW 
 
 the power to restore property forfeited to the United States. Knote v. United 
 States, N. S. xiv. 367. 
 
 482. At common law the power of the sovereign to restore forfeitures was in- 
 cident to his title as lord paramount, and extended only to property in which no 
 other title than his had vested. His power to pardon, on the contrary, was a part 
 of the public prerogative, and included the power to release all the consequences 
 which attached to the crime subsequent to the date of the pardon. The restora- 
 tion of forfeited property was not an incident to pardon, and the two powers had 
 no other connection than the fact of being lodged in the same person. Id. 
 
 483. In the United States the powers to pardon and to restorp forfeited property 
 „ are vested in different parts of the government, the former in the president, and 
 
 the latter in Congress, under its general and exclusive power to dispose of the 
 property of the United States. Id. 
 
 484. The president's proclamation of pardon and amnesty, made December 
 25th 1868, did not have the effect of entitling a citizen whose property had been 
 theretofore condemned' and forfeited for treason and the proceeds paid into the 
 United States treasury, to a restoration of such property or indemnification by 
 the United States. Id. 
 
 485. The proceedings to determine the necessity for taking private property 
 for public use, under the constitution of Wisconsin, are adverse, and no final 
 step is valid, if taken without notice to the property owner. Seifert v. Brooks, 
 N. S. xiii. 712. 
 
 486. A village charter which attempts to regulate such proceedings, but makes 
 no provision for notifying the owner of the time and place of assembling of the 
 jury, is unconstitutional. Id. 
 
 487. Where the act is void for failing to provide for notice, the fact that the 
 property owner was present, but without taking any part, will not give the pro- 
 ceedings validity. Id, 
 
 XIX. Emihent Domain. 
 
 488. The right of eminent domain is inherent in the government. The Water- 
 ' works V. Burkhari, N. S. xiii. 254. 
 
 489. It is not confined, but limited by the constitution, and the limit is not 
 upon the amount taken, but ^nly tequires compensation. Id. 
 
 490. Where the state has taken a fee simple and compensated the owner, no 
 abandonment of the use will reinvest the title in the owner, but it is otherwise 
 if only an ea.seraent is taken. Id. 
 
 491. Where the state has taken a fee simple in lands for its canals, the former 
 owner cannot take ice from the canal. Id. 
 
 492. The provision of the state constitution of Connecticut, that private pro- 
 perty shall not be taken for public use without just compensation, is not a grant 
 of power to the legislature, but a restriction upon the right of eminent domain. 
 Todd v. Austin, N. S. viii. 9. 
 
 493. The legislature may lawfully grant rights of easement to individuals or 
 corporations, to enable them to erect and operate structures, the result of which 
 will be beneficial to the public. Id. 
 
 494. Grant of authority to build a highway over railroad track without com- 
 pensation. Albany Northern Railroad Co. v. Brownell et al., N. S. viii. 58. 
 
 495. The grant of right to lay railroad over a street is not a taking of private 
 property. People et al. v. Kerr et al., N. S. viii. 377. 
 
 496. A statute empowering a log-driving company to assume control on public 
 waters of logs of unconsenting parties is unconstitutional. Ames v. Port Huron 
 Log-Driving Co., N. S. viii. 570. 
 
 497. Law allowing boats to be seized and sold upon mere assertion of debt, 
 without a judgment of a judicial tribunal, is unconstitutional. Parsons v. Rus- 
 sell, N. S. viii. 695. 
 
 498. Legislature cannot authorize summary confiscations of property as a 
 punishment for a mere trespass. RockwJl v. Ncaring, N. S. vi. 378. 
 
 499. What is "due process of law." Id. 
 
 500. Power of legislature to authorize municipal corporation to take land for 
 widening streets. Dorgan v. Citi/, N. S. vi. 439. 
 
 501. How compensation may be ascertained. Id. 
 
 502. Surrender of whole estate by owner to corporation in such case. Id. 
 
 503. Money raised by a county by taxation is not private property, and its 
 
CONSTITUTIONAL LAW. 237 
 
 expenditure mav be directed by the legislature. State v. Countii Court, N. S. iv. 
 121). 
 
 504. Legislature may take the franchises of u corporation for public use. 
 Kerr's Petition, N. S. iv. 123. 
 
 505. Legislature may delegate the right of eminent domain to railroad com- 
 pany. Id. 
 
 506. Title to land taken for a reservoir does not pass until compensation is 
 made or adequate security given to the owner. Borough of Boston's Appeal, N. 
 S. iv. 311. 
 
 507. An act authorizing proprietors of a mill-dam to flow lands of other 
 persons, without any provision for compensation, except as ascertained by ver- 
 dict in an action of trespass, is unconstitutional. Newell v. Smith, N. S. iii. 
 378. 
 
 508. A purchaser of land so flowed, for which no compensation has been made, 
 may recover for the maintenance of the dam after his purchase. Id. 
 
 509. It does not violate the right of acquiring, preserving or protecting pro- 
 perty secured by sect. 1, art. 9 ; the right of property is not so absolute that it 
 mav be taxed for public benefit. Sharpless v. The Mayor of Philadelphia, O. S. 
 ii. 27-85. 
 
 510. This is not a taking of private property for public use without compensa- 
 tion, contrary to sect. 10, art. 9. Where property is not seized and directly ap- 
 propriated to public use, though subjected in the hands of the owner to greater 
 burdens than before, it is not taken. Id. 
 
 511. It cannot be said that the plaintiffs will be deprived of their property in 
 violation of sect. 11, art. 9. The settled meaning of the word " deprive" as there 
 used is the same as that of " taken" in sect. 10. Jd, 
 
 512. An Act of As,sembly to authorize the taking of private property for pri- 
 vate use would be unconstitutional, because it would not be legislation, but a mere 
 decree between private parties ; but this is no taking in any sense, for any pur- 
 pose or for any uses. Id. 
 
 513. By the 11th art. of the constitution of Wisconsin, it is provided that "no 
 municipal corporation shall take private property for public uses against the con- 
 sent of the owner, without the necessity thereof being first estalilished l)y a ver- 
 dict of a jury." The cliarter of the city of Milwaukee authorized the judge of 
 the circuit or county court of Milwaukee where land is proposed to he taken for 
 public use, to appoint twelve jurors to view the ground, determine the necessity 
 of the taking, and assess the damages therefor ; but the act did not in express 
 terras require that the jury should be sworn before entering upon their duties, or 
 provide any mode for swearing them : He!d, that the act was unconstitutional, 
 and the proceedings thereunder void, though the jury may have been, in fact, 
 sworn, Lumsden v. The Citi/ of Milwaukee, O. S. vi. 157. 
 
 514. The clause in the constitution which prohibits the taking of private property 
 for public use, was not designed to operate, and it does not operate to prohibit 
 the legislative department from authorizing an exclusive occupation of private 
 property temporarily, as an incipient proceeding to the acquisition of a title to it, 
 or an easement in it. Cashman v. Smith, 0. S. i. 266. 
 
 515. Such clause was designed to operate, and it does operate, to prevent the 
 acquisition of any title to land, or to an easement in it, or to a permanent appro- 
 priation of it, from an owner for public use, without the actual payment or tender 
 of a just compensation for it. Id. 
 
 516. That the, right to such temporary occupation as an incipient proceeding, 
 will become extinct by an unreasonable delay to perfect proceedings, including 
 the actual payment or tender of compensation, to acquire a title to the land, or to 
 an easement in it. Id. 
 
 517. That an action or trespass qua. r.la. may be maintained to recover damages 
 for the continuance of such occupation, unless compensation, or a tender of it, 
 be made within a reasonable time after the commencement of it. Id. 
 
 518. That under such circum.stances an action of trespass, or an action on the 
 case, may be maintained to recover damages for all the injuries occasioned by 
 the prior occupation. Id. 
 
 519. Constitutional law— obligatifm of contract — taking franchise for public 
 use. See Bridge Co. v. Ferry Co., N. S. i. 186. 
 
 XX. Obligation or Contracts. 
 
 520. Where the legisl.nture of a state in an act of incorporation retains the 
 right to revoke the charter, in case of abuse of the privileges granted, the fact 
 
238 CONSTITUTIONAL LAW. 
 
 of such nhuse must be established. Mayor, ^c, \. C. Sj- S. P. Railroad Co., N. 
 S. iv. 750. 
 
 521. A st-itute repealing a statute by which stock was liable for the corpora- 
 tion's debts impairs the oblisration of contracts as to creditors at the time of re- 
 peal. Hawthorne v. Calef, N. S. iv. 503. 
 
 522. The constitutional convention or legislature of a state may modify or 
 chanjre the remedy of a creditor ; the only limit imposed upon these bodies by 
 the National Constitution is, that the change or modification shall not be such as 
 to impair the obligation of the contract. AMe v. Hand, N. S. v. 82. 
 
 523. Laws exempting a reasonable amount of the property of a debtor from 
 execution, are valid as to prior contracts. Id. 
 
 524. The validity of appraisement and exemption laws, with reference to ihe 
 provision of the Constitution of the United States forbidding any state to pass a 
 law impairing the obligation of contracts, discussed. Vrf. 
 
 525. A provision in an act of a state legislature incorporating a bridge com- 
 pany, that it shall not be lawful for any other person to build a bridge within 
 two tniles of the company's bridge, is a contract within the protection of the 
 Constitution of the United States, and deprives any subsequent legislature of the 
 riglit to authorize such bridge at any other time. Chenango Bridge Co. v. Biyig- 
 hamton Bridge Co., N. S. v. 424. 
 
 f)26. State courts cannot impair contract, valid according to law when made, 
 by a subsequent different construction. Hitvemeyer v. Iowa Co., N. S. v. 566, 
 
 527. State courts cannot by subsequent and contrary construction render con- 
 tract invalid, good at time of execution. Thomson v. Lee Co., N. S. v. 571. 
 
 528. Legislature possessing a power, can cure evils from its irregular execu- 
 tion. Id. 
 
 529. If the parties to a contract include in it the legal remedy by which it is 
 to be enforced, a legislative enactment changing the remedial process agreed on 
 in regard to that contract is as clearly unconstitutional as the attempt to impair 
 the obligation of any other contract. Billmeyer v. Evans Sj- Rodenbaugh, N. S. i. 
 760. 
 
 530. It is settled law that charters of corporations, other than municipal, 
 although the objects of the corporation may be quasi public, are contracts within 
 the protection of the Federal Constitution. P., W. §• B. Railroad Co. v. Bower, 
 N. S. xiii. 174. 
 
 531. Any act having the effect to abridge or restrict any power or privilege 
 vested by the charter, which is material to the beneficial exercise of the franchise 
 granted, and wliich must be supposed to have entered into the consideration foir 
 the acceptance of tlie charter by the corporators, is an impairing of the obligation 
 of the contract within the prohibition of the constitution. Id. 
 
 532. An act prohibiting a railroad company from charging at a greater rate 
 per mile for carriage of passengers or freight from place to place within a state, 
 than for similar carriage through or beyond the state, no such power to regulate 
 charges having been reserved in the charter, is unconstitutional and void. Id. 
 
 533. Such an act is not within the police power of the state. The legislature 
 may regulate the exercise of the corporate franchise by general laws passed in 
 good faith. Id. 
 
 534. Whilst a state, in the exercise of its undoubted power to prescribe forms 
 of action and modes of procedure, may alter and modify the remedy as it existed 
 at the time a contract was made, yet it is under a duty imposed by that clause of 
 the Federal Constitution which prohibits the states from passing Jaws impairing 
 the obligation of contracts, if it interfere at all, to leave in existence a remedy as 
 efficient and substantial as that which subsisted when the contract was made. 
 Lasley v. Phipps, N, S. xiii. 236. 
 
 535. Such an act would be repugnant to that clause of the constitution, pro- 
 hibiting a law impairing the obligation of contracts. Barings v. Dabney, N. S. 
 xiii. 590. 
 
 536. But even if such defence were still open, the constitution of Georgia could 
 not impair the obligations of contracts existing at its adoption. Marsh v. Bur- 
 roughs, N. S. X. 718. 
 
 537. The ordinance of July 4th 1865, levying a tax, impaired the obligation 
 of the contract and was void. Pacific Railroad v. Maguire, N. S. xiv. 119. 
 
 538. Contracts valid when made, continue valid, notwithstanding a change in 
 the business which led to their creation. Railroad Co. v. Richmond, N. S. xiii. 
 707. 
 
CONSTITUTIONAL LAW. 239 
 
 539. An act of the lesfislatare in terms discriminating against taxes levieil 
 to pay judgment upon railroad bonds and coupons, held void because it impaired 
 the ol>ligation of t\iii contract under which the bonds were issued. United States 
 V. Muscatine Co., N. S. ix. 415. 
 
 540. The same general rules of construction are to be applied to both public 
 and private grants. The intent of the contract is to bo ascertained by a fair and 
 rational interpretation of the language used, and, when the intent is ascertained, 
 it is to be carried out against the state as fully as against an individual. Hart- 
 ford Dridi/e Compamj v. Union Ferry Compani/, N. S. ix. 590. 
 
 541. There is a plain distinction between a law authorizing a contract to lie 
 made and a contract made under its authority. And where a contract is made 
 pursuant to the authority or direction of a statute, for the transfer of property or 
 the performance of services, a vested right may be created ; and where this is 
 the case the repeal or anaendment of the law would leave the obligations of the 
 contract still existing and unimpaired. Plank-road Co. ■/. Hucted, 0. S. iv. 213. 
 
 542. As to payment of ground-rents in legal tender notes, which, by the terms 
 of the deed, are payable " in lawful silver money of the United States." See 
 Schillenbcrger v. Jirinton, N. S. iii. 591. 
 
 543. An Act of Assembly authorizing a city to subscribe to railroad stock, 
 docs not impair the obligation of any existinf; contracts, nor does it attempt an 
 impossibility by creating a contract ; but merely authorizes the corporations to 
 make one if they shall see proper. Sharpless v. Mayor of Philadelphia, 0. S. ii. 
 S7, 85. 
 
 544. When repeal of an act, exempting swamp lands from taxation, impairs 
 a contract by the state. i[c.Gee v. Mathis, N. S. vi. 437. 
 
 545. When power of taxation is a contract and cannot be withdrawn till con- 
 tract is satisfied. Van Hoffman v. Quincij, N. S. vi. 632. 
 
 546. A statute subsequently passed, restricting or repealing such powers of tax- 
 ation, is a nullity. Id, 
 
 547. A state legislature may constitutionally pass an act that if a defendant 
 is in the actual military service of the United States, any action against him in 
 the courts of such state shall stand continued during the period of his actual 
 service. McCormick v. Rusch, N. S. iii. 93. 
 
 548. An act which interposes such obstacles to the enforcement of certain 
 mortgages as to leave the creditor without substantial remedy, impairs the obli- 
 gation of contracts and is void. Oatman v. Bond, N, S. iii. 377. 
 
 549. Legislature cannot prohibit a city from levying a tax sufficient to pay 
 judgments against the city. Wisco'isin v. Madison, N. S. iii. 377. 
 
 550. Distinction between statutes that impair the obligation of contracts, and 
 those which operate on remedy only, discussed. Note to McCormick r. Rusch, 
 N. S. iii. 93. 
 
 551. A legislative concession embraced in the charter of a corpor.ifion per- 
 petually exempting its property from taxation, without a sufficient coirresponding 
 consideration yielded by the corporation, is revocable at the pleasure of the 
 state. And the act of the state in revoking such a concession is not unconstitu- 
 tional as impairing the obligation of a contract. Rowse v. Washington Univer- 
 siti/, N. S. vii. 390. 
 
 552. Alterations may be made in remedies, if they do not deprive a creditor 
 of rights he had when the contract was made. Penrose V. Erie Canal Co., N. 
 S. viii. 59. 
 
 553. A legislative concession, embraced in the charter of a corporation, per- 
 petually exempting its property from taxation, without a sufficient corresponding 
 consideration yielded by the corporation, is revocable at the pleasure of the state. 
 And the act of the state in revoking such a concession is not unconstitutional as 
 impairing the obligation of a contract. Bowse v. Washington University, N. S. 
 vii. 390. 
 
 XXI. Validitt of Stay Laws. 
 
 554. The Indiana statute of 1861, which provides that in all cases of sales by 
 the sheriff on execution, after its passage, the sheriff shall not give the pur- 
 chaser a deed for and possession of the property sold, but only a certificate en- 
 titling him to a deed and possession in one year from the sale, if the property is 
 not redeemed in the manner therein provided, is unconstitutional, so far as it 
 applies to sales on judgments upon contracts existing at and before its passage. 
 Scoby V. Gibson, N. S. i. 221. 
 
240 CONSTITUTIONAL LAW. 
 
 555. The proviso of the first section of the Act of 21st May 1861, granting 
 stay of execution, under certain coudilions, on " all judgments or debts upon 
 which stay of execution has been or may be waived by the debtor in any original 
 obligation or contract upon which such judgment has been or may be hereafter , 
 obtained," is unconstitutional, being in conflict with section 10, article I., of 
 the Constitution of the United States, and with section 17, article IX., of the 
 constitution of Pennsylvania. Billmeyer v. Evans S; Eodenbaugk, N. S. i. 760. 
 
 556. Power to enact stay laws. See Miller v. Ripka, O. S. ix. 561 ; Ltvkks 
 V. Walker, 0. S. ix. 112. 
 
 XXII. Exemption Clabsb. 
 
 557. Constitutionality of exemption clause. N. S. vii. 55, 180. 
 
 558. Constitutionality of exemption clause of the Act of 1867 — subject dis- 
 cussed. N. S. vi. 721. 
 
 559. Constitutionality of exemption clause of bankruptcy — subject discussed. 
 N. S. vii. 55, 180. 
 
 XXIII. Trial by Juet, and herein op what constitutes Due Process op 
 Law. 
 
 560. An act requiring the reference of all actions of a particular kind to an indi- 
 vidual to take testimony, is unconstitutional. Oatman v. Bond, N. S. iii. 377. 
 
 561. Constitutional provision refers to the right as it existed at the adoption 
 ot the constitution. Bijers et al. v. Commonwealth, N. S. ii. 447. 
 
 562. An act authorizing arrest and summary commitment of professional 
 thieves is constitutional in Pennsylvania. Id. 
 
 563. Legislature has no right to compel submission to an arbitration without 
 consent of party. People ex rel. Baldwin y. Haws, N. S. ii. 378. 
 
 564. Taking of private property without compensation. See Eminent Domain. 
 
 565. The extension of trials of replevin to justices, does not violate the pro- 
 vision of the constitution providing "tliat trial by jury shall remain inviolate 
 forever," though a justice's jury is only composed of six men. Knight v. Camp- 
 bell, N. S. xi. 591. 
 
 566. The constitution, in guaranteeing " trial by jury as it has been heretofore 
 used," intended to embrace juries in justices' courts. Id. 
 
 567. The word "jury," as used in the constitution, does not mean u jury of 
 twelve, exclusively. Id. 
 
 568. Authority of military commissions in a state not engaged in rebellion 
 nor invaded, where Federal courts open. Ex parte Milligan, N. S. vi. 567. 
 
 569. Citizens in civil lii'e could not be tried in Indiana by a military tribunal, 
 for any offence whatever. Id. 
 
 570. What cases are excepted from necessity of presentment by grand jury 
 and trial by jury. Id. 
 
 571. Neither President, Congress, nor Judiciary can disturb safeguards of 
 civil liberty except so far as habeas corpus may be suspended. Id. 
 
 572. Even when privilege of habeas corpus is suspended, citizen can only be 
 tried, convicted, and sentenced by civil courts of law. Id. 
 
 573. When resident in a loyal state cannot be regarded as a prisoner of war. Id. 
 
 574. Suspension of the privilege of writ of habeas corpus, does not suspend 
 writ itself. Id. 
 
 575. Preservation of the right of trial by jury. Tubor v. Cook, N. S. vi. 632. 
 
 576. The Constitution of the United States or of Pennsylvania does not pre- 
 clude the waiver of a trial by jury. JCrugh v. Lycoming Ins. Co., N. S. xiv. 757. 
 
 577. The allowance of four peremptory challenges, under the " Criminal 
 Procedure Act" of 1860, does not conflict with constitutional provision "that 
 trials by jury shall be as heretofore, and the right thereof remain inviolate." 
 Hartzell v. Commonwealth, N. S. i. 761. 
 
 578. What " due process of law " includes. A deserter is not deprived of his 
 right to vote by the Act of 1865 until adjudged a deserter by court-martial. 
 Huber V. lieil)/, N. S. vii. 57. 
 
 XXIV. Search Warrants, and Kight or Search. 
 
 579. This part of the act is unconstitutional, because, (1.) It warrants and 
 requires unreasonable searches and seizures. (2.) Because it interferes with 
 the regulation of foreign commerce. (3.) Because the precautions and safe- 
 guards for the security of persons and property are disregarded. (4.) Because 
 the net contains no provision for the judicial trial of the party accused, such trial 
 
CONSTITUTIONAL LAW. 241 
 
 being the only mode provided in the declaration of rights by which crime can be 
 established against the citizen. Fisher v. McGirr, 0. S. ii. 460. 
 XXV. Rights op Personal Libkrtt, and herein as to the Surrender 
 OP Fugitives from Justice and Labor. 
 
 580. The clause of the constitution and the provisions of the Acts of Congress 
 of 1793 and \%f>0, providing for the rendition of persons held to labor include 
 apprentices. Boater v. Cummines, 0. S. i. 654. 
 
 581. Where E. had bound himself an apprentice in Delaware, with the consent 
 of his father, who lived in Pennsylvania, and the latter had, upon one occasion, 
 returned C. to his master, from whom ho had absconded : held, that C. might be 
 arrested by virtue of a commissioner's warrant, and remanded to his master as 
 a fugitive. Id. 
 
 582. Where one person is held in custody by another, acting in the right of, 
 and under the authority of, the general government, or claiming in good faitii 
 and under color of such authority to be so acting, the state courts have no juris- 
 diction to inquire into the validity of such authority, and to discharge the person 
 60 held from custody. In the matter of Spang! er, N. S. ii. 598. 
 
 583. Where, on a return to a writ of habeas corpus, a state court \s judicially 
 apprised that the party is in custody under authority of the United States, such 
 state court can proceed no further. In re Jordan, N. S. ii. 749. 
 
 584. The Act of 1864, ch. 280, Maine, allowing a person charged with crime 
 to be called as a witness at the trial "at his own request, but not otherwise," is 
 constitutional. State v. Bartlett, N. S. viii. 184. 
 
 585. A man may, by the same act, commit two offences against two different 
 sovereignties, and may hence be punished by both, but this is not a double pun- 
 ishment for the same offence. Moore v. Slate, 0. S. i. 206. 
 
 586. Prigg V. Pennsylvania, 16 Peters 540, commented on, and points re-stated. 
 Id. 
 
 587. The citizen cannot resist by force the execution of process obtained 
 through the tribunals in the regular course of proceedings, although he may con- 
 sider it to have been unconstitutionally and unjustly obtained ; such forcible re- 
 sistance would render him criminally liable. Ch. J. Shepley's Charge to Grand 
 Jury, 0. S. i. 212. 
 
 588. The citizen is not at liberty to offer the least resistance, by force, to the 
 execution of a law esteemed by himself to be an unauthorized and unconstitu- 
 tional one, nor may he incite others to do so, even when it acts directly upon his 
 own person or property. Id. 
 
 589. Military commissions in a state not engaged in rebellion during the late 
 war, in which the Federal courts were open, had no jurisdiction to try a citizen 
 for a criminal offence who was not a resident of a rebellious state. Ex parte Mil- 
 ligan, N. S. vi. 567. 
 
 590. The clause of the Constitution of the United States, which directs the 
 surrender of a fugitive from justice upon the demand of the executive authority 
 of the state from which he fled, contains no grant of power, but is the mere 
 regulation of an existing right on the part of the state making the surrender. 
 In the mailer of William Feller, O. S. i. 529. 
 
 591. The requirement of the constitution, in reference to search-warrants, that- 
 "a special designation of the place to be searched" shall be made, is not an- 
 swered by words, which, if used in a conveyance, would not convey it, and wliich 
 would not confine the search to one building or place. Stale v. Spirituous 
 Liquors, O. S. i. 189. 
 
 592. The United States goveniment has never acknowledged the right of 
 foreign nations to demand the surrender of fugitives from justice independent 
 of treaty stipulations. In the matter of William Fetter, 0. S. i. 529. 
 
 593. A fugitive from justice from either of the United States may, under the 
 provision of the Constitution of the United States (art. 4, sect. 2), be arrested 
 and detained in this state (New Jersey), in order to his surrender, before a requisi- 
 tion is actually made upon the executive for his surrender. Id. 
 
 594. It is not necessary, in order to warrant the surrender or detention of the 
 fugitive, that the crime with which he stands charged should constitute an offence 
 at the common law. Id. 
 
 595. To warrant the surrender or detention of the fugitive, it must appear that 
 the crime with which he stan<ls charged was committed within the state from 
 which he is alleged to be a fugitive. Id. 
 
 16 
 
242 CONSTITUTIONAL LAW. 
 
 XXVI. Freei>om Op Religion. 
 
 596. Authority of school committee to pasa order for reading the Bible, and 
 prayer. SpUler v. Woburn, N. S. vi. 315. 
 
 XXVII. Eegclation or Commebce. 
 
 597. The provision of the national constitution, that no state shall, without 
 the consent of Congress, levy any imposts or duties on imports or exports, ex- 
 tends alone to articles brought into a state from a foreign country, and has no 
 application to articles brought from one state into another ; hence this provision 
 does not prohibit a state from taxing articles brought into it for sale from a sister 
 state, even though when taxed they are in the original or unbroken package. Wood- 
 rnffw. Parham, N. S. ix. 25. 
 
 598. A state law authorizing a tax on all sales of merchandise, whethei- the 
 goods sold be the produce of that state or some other, and not discriminating 
 against the products of sister states or their citizens, is valid, even though the 
 articles were sold at wholesale in the original and unbroken packages. Id. 
 
 599. Brown v. Maryland, 12 Wheat. 419, and other cases, commented on and 
 distinguished from the present case by Miller, J. Id. 
 
 600. The provision of the national constitution against taxing imports by the 
 states, does not extend to articles brought from a sister state ; therefore this pro- 
 vision does not prohibit a state from taxing articles brought into it for sale from 
 another state, even though when taxed such property is in the original package ; 
 but another provision of the constitution, viz., the commercial clause, does pro- 
 hibit a state from passing tax laws discriminating adversely to the products of 
 other states and in favor of its own, and which can be seen to operate to fetter 
 commerce among the states. Hinsun v. Lott, N. S. ix. 36. 
 
 601 . The J)rinciple of Woodruff v. Parham (N. S. ix. 26) , affirmed and applied 
 to a case where, although the mode of collecting the tax on the article made in 
 the state was different from the mode of collecting the tax on the articles brought 
 from another state into it, yet the amount paid was in fact the same on the same 
 article in whatever state made. Id. 
 
 602. A law of Virginia, compelling corporations chartered by other states 
 to give security and procure a license before doing business, in Virginia, is con- 
 stitutional, not being in violation of the clause giving citizens of each state the 
 privileges of citizens of the several states, nor of the clause giving Congress 
 power to regulate commerce. Paul v. Commonwealth of Virginia, N. S. ix. 109. 
 
 603. The issuing of a policy of insurance is not a transaction of commerce, 
 even though the parties be domiciled in different states ; it is a simple contract 
 of indemnity against loss. Id.. 
 
 604. The Act of 1868, eh. 413, provides, that "no person not being a per- 
 manent fesident in this state shall sell, offer for sale or expose for sale, within 
 the limits of the city of Baltimore, any goods, wares or merchandise whatever, 
 other than agricultural products, and articles manufactured in the state of Mary- 
 land, within the limits of the said city, either by card, sample or other specimen, 
 or by written or printed trade-list or catalogue, whether such person be the maker 
 or manufacturer thereof or not, without first obtaining a license so to do." On 
 an indictment against a party for a violation of this law, Held: (1.) That said 
 law is not repugnant to that clause of the 8th sect, of the 1st art. of the Consti- 
 tution of the United States, which grants to Congress the power "to regulate 
 commerce wjth foreign nations, and among the several states, and with the 
 Indian tribes." (2.) That it is not repugnant to that clause of the 2d sect, 
 of the 4th art. of the Constitution, which declares, that " the citizens of each 
 state shail be entitled to all privileges and immunities of citizens of the several 
 states." (3.) That it is within the power of a state to tax, in the shape of a 
 license, any trade, business or occupation, when carried on in its borders by 
 those who are not permanent residents of the state, whether foreigners or citizens 
 of other states. Ward v. State of Mnryland, N. S. ix. 424. 
 
 605. The section of the Revenue Act relating to the sale of naptha and illu- 
 minating oils, has no constitutional operation within state limits. United States 
 V. Dewitt, N. S. ix. 451. 
 
 606. The ordinance of Congress of August 1787, under the Articles of Con- 
 federation, for the government of the territory northwest of the Ohio river, is 
 superseded by the Constitution of the United States. Woodman v. Killbourn 
 Manuf. Co., N. S. vi. 238. 
 
 607. TJie United States, under the power to regulate commerce among the 
 
CONSTITUTIONAL LAW. 243 
 
 SBTcral states, hare paramount authority over a navigable stream hearing a ne- 
 cessary relation to such commerce. Woodman v. Killbourn Manuf. Co., IS. S 
 Ti. 238. 
 
 608. In the absence of the exercise of such authority on the part of the United 
 States, the state governments may regulate the navigation of such streams. Jd. 
 
 609. The people have a right to the use of a navigable stream ; but the leg- 
 islature, with the object of public improvement and convenience, may appropriate 
 the use of the surplus water to a local purpose. Id. 
 
 610. A state law, laying a distinctive tax on the business of foreign corpora- 
 tions doing business in a state, such business consisting of the transportation of 
 goods, in transitu, from state to state, is unconstitutional. Erie Ea'dway Co, v. 
 New Jerseij, N. S. iv. 238. 
 
 611. Whenever the taxation of a commodity would amount to a regulation 
 of commerce, so will the taxation of an inseparable incident of such commodity. 
 Id. 
 
 612. A state cannot tax a foreign corporation on a principle different from 
 that on which she can tax one of her domestic corporations. Id. 
 
 613. The power to refuse a recognition of corporate existence does not involve 
 the right to tax a foreign corporation at the arbitrary discretion of the govern- 
 ment possessing such a power. Id. 
 
 614. The act of taxation is a recognition of the legal status of the corporation 
 taxed, and admits that such corporation is clothed with all the rights necessary 
 to defend itself against illegal taxation. Id. 
 
 61.1. The term "commerce," as employed in section 8, article 1, of the Con- 
 stitution of the United States, is not limited to an exchange of commodities 
 only, but includes the transportation of passengers. People v. Raymond, N. S. 
 viii". 118. 
 
 616. When the Congress, in the exercise of its constitutional right, has by its 
 legislation established regulations of commerce with foreign nations, and among 
 the several states, its authority is paramount and exclusive, and its enactments 
 supersede all state legislation on those subjects. Id. 
 
 617. By the enactment of section 285 of the United States Internal Revenue 
 Act (2 Bright. Dig. 271), the Act of August 30th 18.'52, and the Act of March 
 6th 18.55 (10 U. S. Stat, at Large 61, 715), Congress has undertaken to regulate 
 the entire business of transporting passengers by sea. Id. 
 
 618. The act entitled " An act to provide revenue for the support of the gov- 
 ernment of the state of California, from a tax upon foreign and inland bills, 
 passengers, insurances, and other matters," passed May 14th 1862, is a regulation 
 of commerce within the meaning of sect. 8, art. 1, of the Federal Constitution, 
 and therefore unconstitutional and void. Id. 
 
 619. Where a river is wholly in a state, the legislature has full control over 
 the navigation of it. subject to the laws of the general government respecting 
 tide-water rivers. Flanagan v. Philadelphia, N. S. ii. 504. 
 
 620. A law of Detroit requiring ferry-boats running to Canada to pay a license 
 fee is not unconstitutional. Chdvers v. People, N. S. ii. 569. 
 
 621. Extent of the power to regulate the use of navigable rivers, by bridging, 
 &c., under state authority. How far the power of Congress extends as to rivers 
 wholly within a state, and how far the states may exercise control when not ex- 
 pressly prevented by Congress. Oilman v. Philadelphia, N. S. v. 636. 
 
 622. The Act of 1867, declaring a bridge across the Mississippi river at Clinton 
 "a lawful structure and a post-route," is constitutional ; and under it the Cir- 
 cuit Court of the United States will dismiss a bill to procure the abatement of 
 the bridge as a nuisance, based on the ground that it presents a serious obstruc- 
 tion to the navigation of the river, although the suit for this purpose was pending 
 at the time the Act of Congress was passed. Gray v. Clinton Bridge, N. S. vii. 
 149. 
 
 623. The power of Congress to regulate commerce extends to commerce on 
 land, carried on by railroads which are parts of lines of inter-state communica- 
 tion, as well as to' commerce carried on by vessels ; and such railroads may be 
 regulated by Congress as well as steamboats. Per Miller, J. Id. 
 
 624. The commercial clause of the constitution expounded by Miller, J., in 
 reference to railways and boats as instruments of commerce. Id. 
 
 625. Special state tax on railroad companies for passengers carried out of the 
 state by them is not void as a duty on exports nor as a regulation of commerce, 
 
244 CONSTITUTIONAL LAW. 
 
 but it is a derogation of the Federal government's right to require the presence 
 and service of its citizens at any point where the functions of government are 
 to be performed, and also of the citizen's right of free access to the seat of govern- 
 ment or any public Federal oiiBce. Crandall v. Nevada, N. S. vii. 440. 
 
 626. Imposing pilotage on vessels in foreign commerce, and half-pilotage on 
 coasters, is not in conflict with sect. 10, art. 1, of the Constitution of the United 
 States. Collins v. Society, N. S. xiii. 462. 
 
 627. No trade honestly carried on between neutral ports, whether of the same 
 or of different nations, can be lawfully interrupted by belligerents, but good 
 faith must preside over such commerce ; enemy under neutral disguises has no 
 claim to neutral immanity. The Bermuda, N. S. v. 568. 
 
 628. Goods of every description may be conveyed to neutral ports from 
 neutral ports, if intended for actual discharge at a neutral pert ; but voyages in- 
 tended for belligerent ports are not protected in respect to seizure either of 
 ship or cargo by an intention, real or pretended, to touch at. neutral ports'. Id. 
 
 629. Semble, That Congress, under the power to regulate commerce, has antho- 
 rity to establish a lien on vessels of the United States in favor of material-men, 
 uniform throughout the whole country. The Lotawanna, N. S. xiv. 483. 
 
 630. The power to regulate commerce between the states was vested in Con- 
 gress to secure equality in commercial intercourse and not to interfere with 
 private contracts. Railroad Co. v. Eichmond et al., N. S. xiii. 707. 
 
 631. Under the grant of power to Congress to regulate commerce among the 
 several states, as given by the Constitution of the United States, the general 
 government has jurisdiction over navigable streams, so far as may be necessary 
 for commercial purposes. Jolly et al. v. Terre Haute Drawbridge Co., 0. S. iii. 
 29. 
 
 G32. A steamboat, enrolled and licensed pursuant to the Act of Congress, is 
 \ entitled to the protection of the general government, while engaged in carrying 
 on commerce between different states ; and her owners have a right to use the 
 navigable streams of the country, free from all material obstructions to naviga- 
 tion. Id. 
 
 633. The commercial power of the Federal government under the constitution, 
 discussed. Id. 
 
 634. Land purchased for military purposes cannot be sold without special 
 authority from Congress ; otherwise as to land reserved out of the public domain 
 and then abandoned. United States v. Bridge Co., 0. S. iii. 603. 
 
 635. That power is part of the power to regulate foreign commerce. It is 
 commercial in its character, and has the same extent and application, and the 
 same limits, as the power to regulate foreign commerce. Unitid States v. Brod- 
 nax, 0. S. viii. 525. 
 
 636. The several states have the general sovereign right to determine who 
 may or who may not live within their limits, to fix the political and social status 
 of each inhabitant, and to prescribe his rights and punish their violation within 
 its limits. Id. 
 
 637. It is settled, by repe.ited decisions of the Supreme Court, that the com- 
 mercial power of the general government extends to and covers (exclusively of 
 the interference of state laws) the importation of either goods or persons, un- 
 til the commercial transaction of importation is complete and ended, and no 
 further. When the goods or jjcrsons imported pass out of the possession or con- 
 trol of the importer, his agents and employees, and become mingled with the 
 mass of property or population of a state, they then become subject to the state 
 jurisdiction and laws. Id. 
 
 638. The laws of the United States, prohibiting the foreign slave trade, are to 
 be construed in reference to tlie mischief intended to be remedied, and to the na- 
 ture, extent, and limits of the constitutional power of Congress over this subject. 
 Id. 
 
 639. The sole mischief intended to be remedied was the imporation of negroes 
 as slaves. It was not, and is not, the manner in which either free negroes or 
 slaves are regarded or treated in any state. Id. 
 
 640. These laws extend to all persons who in any manner, directlv or indi- 
 rectly, participate, aid or abet in the protiibited importation. They do tiot extend 
 to offences committed in a state against the rights of a negro who had been pre- 
 viously unlawfully imported by some other person, after he has passed out of 
 
CONSTITUTIONAL LAW. 245 
 
 the possession ov control of the importer, and become mingled with the mass of 
 the population of a state. United Slates v. Broiivax, 0. S. viii. 525. 
 
 641. An indictment which only charges that the accused within the state did 
 hold, sell or otherwise dispose of a negro or a slave who had previously been 
 unlawfully imported by some other persons, without alleging that the accused did 
 particip.ite, aid or abet, in the unlawful importation, is fatally defective. Id. 
 
 642. The mode of procedure prescribed by the 7th sect, of the Act of April 
 20th 1818, for enforcing the penalty for violating its provisions in a qui tam 
 action and no other. Therefore an indictment does not lie under that section. 
 Id. 
 
 XVIII. Laws Damming oe Ekidgino Streams, and herein of what Con- 
 stitutes Navigable Strkam. 
 
 643. Upon principles of public law it is clear that the power of erecting a 
 bridge, and taking tolls thereon over a navigable river wliich forms the co-termi- 
 nous boundary between two states, can only be conferred by the concurrent legis- 
 lation of both states. The President, Managers, Sfc, v. Trenton City Bridge Co., 
 N. S i. 697. 
 
 644. The building of a bridge across the Mississippi at Dubuque under the Act 
 of July 25th 1866, did not invalidate a contract previously made by a railroad, 
 giving an elevator company the right to handle all grain brought to the river. 
 Baitroad Co. v. Richmond, N. S. xiii. 707. 
 
 645. In relation to the states carved out of the Northwest Territory, the guar- 
 anty in the Ordinance of '87, as to navigable streams, is still in force. Jolli/ v. 
 Terre Haute Drawbridge, 0. S. iii. 29. 
 
 646. Are state bridges constitutional? — the question discussed. O. S. iii. 1. 
 
 647. The legislature must be the sole judge and arbiter in determining what 
 streams shall be navigable, and when they may be obstructed and their naviga- 
 tion destroyed for public necessityor convenience. G'over v. Powell, 0. S. iii. .^67. 
 
 648. An individual cannot question the legislation of the state as to the rights 
 of navigation, unless he can call to his aid the paramount authority of the gen- 
 eral government. Id. 
 
 649. What constitutes a navigable stream. Id. 
 
 650. In 1854, the legislature passed an act for the removal of the dam erected 
 and continued under the Act of 1760. The Act of 1854 violates the constitution 
 of the state, and an injunction will be granted by this court to restrain any 
 action under it. Id. 
 
 651. A forfeiture cannot be declared by the legislature ; it can only be done 
 by the courts in due process of law. Id. 
 
 652. A court of the United States has the power to prevent by injunction the 
 present or future erection of any bridge, under the authority of one of the states, 
 that by its construction will interfere with the navigation of a public stream upon 
 which there is a commerce to any considerable extent with other states, though 
 such stream lies wholly within the limits of the state. The question in such case 
 is relative whether the bridge be or be not a greater obstruction to commerce than 
 benefit to the public. Devoe v. Penrose Ferry Bridge Co., O. S. iii. 79. 
 
 653. In such case, unless irreparable damage would be done to the defendants 
 thereby, and though an answer be put in denying both the fact and the law, an 
 interlocutory injunction may be granted upon affidavits, at once, until further 
 order ; and an issue may be then directed to determine whether the bridge under 
 its present form, &c., is a nuisance to the navigation of the river, and if so, 
 whether any bridge can be constructed at the particular spot which will not be a 
 nuisance. Id. 
 
 654. The national jurisdiction over navigable streams does not deprive the 
 states of the exercise of such rights over them as they may deem expedient, sub- 
 ordinate to the power granted by the Constitution of the United States. Jolly v. 
 Terre Haute Drawbridge Co., O. S. iii. 29. 
 
 655. A bridge of sufficient elevation, or with a proper draw, is not necessarily 
 an impediment to navigation, neither is any structure or fixture such impediment 
 which facilitates commerce instead of being a hindrance. Id. 
 
 656. The inquiry in this case is, whether the bridge with the draw, erected by 
 the defendant at Terre Haute, is a material obstruction to the navigation of the 
 Wabash river. Id. 
 
 657. If it occasions merely slight stoppages and loss of time, unattended with 
 
246 CONSTITUTIONAL LAW, 
 
 danper of accident to life or property, it is not obstruction. Jolly v. Terre Eaule 
 Drawbridge Co., 0. S. iii. 29. 
 
 658. The Terre Haute bridge was built under a charter from the state of Indi- 
 ana, which required a " convenient draw " in the bridge. This imports a draw 
 ■which can be passed without vexatious delay or rislt, and if not such a one the 
 charter is violated ; but if it meets the requirements of the act of incorporation, 
 and is yet a material obstruction, it is a nullity for the want of power in the leg- 
 islature to pass such an act. Id, 
 
 659. If the juiy find the bridge is a material obstruction, but that the injury 
 sustained by the plaintiff's boat was the result of recklessness, or want of skill 
 in those having charge of her, the bridge company are not liable, and evidence 
 of the good professional reputation of the pilot will avail nothing if in this par- 
 ticular case he was reckless and unskilful. Id. 
 
 XXIX. Ex Post Facto Laws. 
 
 660. Eegistry Acts, having a retrospective operation, have never been consid- 
 ered as falling within the constitutional inhibition against ex post facto laws, or 
 laws impairing the obligation of contracts, provided, they allow a rea-sonahle 
 time after their passage to record existing or antecedent deeds. Tucker v. 
 Harris, 0. S. ii. 380. 
 
 661. What are retrospective acts and ex post facto laws. Locke v. New Or- 
 leans, N. S. vi. 437. 
 
 662. Constitutionality of Missouri test oath. Note to Ex parte Garland, 
 commenting on Cummings v. State, N. S. vi. 291. 
 
 663. Act of 3d March 1865, imposing penalty for desertion, is not ex post 
 facto. Huber v. Beil)/, N. S. vii. 57. 
 
 XXX. QoBSTioss Arising out op the Reeehion. 
 
 664. The Act of Congress of 13th July 1861, and the president's proclama- 
 tion of 16th August 1861, recognised an insurrection amounting to civil war, as 
 existing in the state of Tennessee, but did not put in force against the people 
 of that stale all the rights and privileges conferred on the national government 
 by the laws of war. Allen v. Russell et al., N. S. iii. 361. 
 
 665. The expression " commercial intercourse" in the Act of I3th July 1861, 
 is to be considered as limited by the specifications in the act. Id. 
 
 666. Therefore, where a partnership of three persons existed in Kentuckv, and 
 two of them being disloyal, became residents in a rebellious state, and there, 
 after the Act of Congress of 1861 and the president's proclamation, made a 
 deed of assignment of the partnership property to a creditor in Kentucky, for 
 the purpose of securing his and other debts due by them to persons in a loyal 
 state, the making of such deed was not such " commercial intercourse " as is 
 within the prohibition of the Act of Congress and the president's proclamation. Id. 
 
 667. Nor is it material that the creditor went into the rebellious state for the 
 purpose of procuring such deed, and brought it to Kentucky. The deed was not 
 an article of commerce within the Act of Congi-ess and the president's procla- 
 m.ntion. Id. 
 
 668. By the laws of war the partnership was dissolved, but the third and loyal 
 partner was not a surviving partner. The others were not civilly dead, and no 
 conviction of treason having ensued, their right of property still remained and 
 passed under their deed. Id. 
 
 669. By the Act of Congress of 13th July 1861, and the president's procla- 
 mation in pursuance thereof, citizens of the rebellious states have primd facie 
 become for purposes of commerce quasi enemies, and cannot sue in the United 
 States courts. United States v. 100 Barrels, N. S. iii. "35. 
 
 670. But the granting of n license to trade restores the standing of the grantee 
 so as to enable him to be heard in the United States courts. Id. 
 
 671. The act of foreign nations in recognising the so-called Confederate 
 States as a belligerent, estops their subjects from disputing the lawfulness of 
 captures on the high seas by the United States forces. But such recognition has 
 no influence on the courts of the United States, who are guided solely by the 
 .action of the political department of their own government. Id. 
 
 672. Therefore, in determining the status of rebel persons and property, the 
 courts are guided by municipal and not by international law. Id. 
 
 673. The Acts of Congress of 13th July 1861, and 20th May 1862, are pro- 
 hibitory acts, and the forfeiture under them of goods "proceeding to" rebellious 
 states can only be avoided by the production of such a license as is provided iu 
 
CONSTITUTIONAL LAW-^CONSTRUCTION, &c. 247 
 
 the acts. Therefore a license ohtained through error, or mistake, or fraud, will 
 not prevent tbe forfeiture. United States v. 100 Barrels, N. S. iii. 735. 
 
 674. The Act of Congress of July 17th 1862, applies to suits for the recovery 
 of debts in the state as well as the Federal courts. N<jrris v. Doniphan, N S. 
 iii. 471. 
 
 675. If the act is unconstitutional, Congress has no power to prohibit the state 
 courts from giving to the owners of property seized the relief to which they are 
 entitled by the laws of the states. Id. 
 
 676. The forfeitures or confiscations proposed by this act are to be effected on 
 account of' offences which the owner may commit without reference to the use of 
 his property ; hence, the doctrine that property which is used to violate a block- 
 ade, or revenue laws, may be forfeited by proceedings in rem, without conviction 
 of the owner, has no application to this case. Id. 
 
 677. That clause of the constitution which authorizes Congress "to declare 
 war," &c., relates only to wars with foreign nations. Id. 
 
 678. The right given by the constitution to make war upon rebels, gives the 
 power to perform acts of war, and no other power whatever. The seizure and 
 confiscation of enemies' property on land are not acts of war. Id. 
 
 679. The constitution, and not the law of nations, governs the relations be- 
 tween the government and citizens of the Dniteil States. They, though traitors, 
 must be dealt with according to the constitution. Id. 
 
 680. The act under consideration is unconstitutional. Id. 
 
 681. A person joining the rebellious states, and residing therein, cannot on 
 common-law principles maintain an action in the courts of the United States or 
 of the loyal states. Id. 
 
 682. The doctrine of belligerent rights gives no power to the enemy to take the 
 property of citizens of an invaded country. Lucas v. Bruce et al. , N. S. iv. 95. 
 
 683. Under the Act of Congress of 13th Juiy 1861, sect. 5, goods forming the 
 cargo of a vessel proceeding to a point in the insurrectionary states, are liable to 
 forfeiture only while in transitu. United States v. Schooner Francis Hatch, N. S. 
 iv. 289. 
 
 684. And the vessel only while the contraband cargo is on board. Id. 
 
 685. But under the regulations made by the secretary of the treasury by au- 
 thority of the Acts of 13th July I86I, 20th May 1862, and 2d July 1864, a vessel 
 eno'aging in trade with the insurrectionary districts, is liable to forfeiture even 
 after the termination of the prohibited voyage and the discharge of the contraband 
 cargo. Id. 
 
 686. The imposing of such forfeiture is within the power to make regulations 
 conferred on the secretary of the treasury by Acts of Congress. Id. 
 
 687. Congress has the constitutional right to confer such power, though quasi 
 legislative, on the executive. Id. 
 
 688. Even if it be necessary for Congress itself to exercise such power, it may 
 be considered to have ratified and adopted such regulations by the Act of 2d July 
 1864, sect. 3. Id. 
 
 689. Therefore, where a vessel had been engaged in prohibited trade, but 
 before the libel was filed, had completed her voyage and discharged her cargo, a 
 forfeiture was decreed by virtue of the regulations established by the secretary 
 of the treasury. Id. 
 
 CONSTRUCTION OF CONSTITUTION. 
 
 1. Of the Constitution of the United States, art. 1, sect. 10. U. B. Railroad 
 Co. V. E. T. Sr G. Railroad Co., O. S. ii. 303. 
 
 2. Of the constitution of Pennsylvania, art. 1, sect. 13 ; art. 9, sects. 1, 10 and 
 II. Sharpless v. The Mayor, 0. S. ii. 27, 85. 
 
 CONSTRUCTION OF CONTRACT, Subject discussed. N. S. ii. 129. 
 
 CONSTRUCTION OF DEED. 
 
 A deed to A. B., and his heirs, except C. B., one of the sons of A. B., con- 
 veys only a life-estate to A. B. Ulake et ux. v. Bi/de, 0. S. iv. 172. 
 
 CONSTRUCTION OF STATUTES. , r,o -^i, 
 
 1. Construing statutes bv equity— subject discussed. (J. 6>. vi. 9ld. 
 2 When the legislative will can be ascertained from different enactments they 
 should he so construed as to make that will effective although no express lan- 
 guage is used which declares such legislative will. Wood v. Blanchard, O. b. vi. 
 434. 
 
248 CONSTKUCTION OP STATUTES— CONTEMPT. 
 
 3. Acts authorizing subscriptions by corporations are to be construed strictly 
 against the corporation and in favor of the holders of the bonds. Maddox v. 
 Graham, 0. S. vii. 747. 
 
 4. If the construction of a state statute has been settled by the decision of the 
 highest court of the state, the courts of the United States uniformly adopt such 
 construction. Coolidge v. Curtis, O. S. vii. 334. 
 
 5. Georgia, Acts of 1840, 1847, 1849. U. £. Railroad Co. t. E. T. 4r G- 
 Railroad Co., 0. S. ii. 303. 
 
 6. Maryland, Acts of 1809, 1853. In re Walsh, 0. S. ii. 542. 
 
 7. Michigan, Act of 1853. In People v. Collins, 0. S. ii. 591. 
 
 8. Mississippi, Act of 1839. In Lt/on t. Knott, 0. S. ii. 604. 
 
 9. Pennsylvania, constitution of, art. 1, sect. 13, and art. 9, sects. 1, 10 and 11. 
 Sliarpless v. The Mayor, 0. S. ii. 27, 85. 
 
 10. Pennsylvania, Act of 22d April 1704. Sunday Law Com. v. Johnson, 0. 
 S. ii. 285, 432. 517. 
 
 11. Acts of Congress of March 3d 18.51, sects. 2 and 3. In Watson v. Marks, 
 O. S. ii. 157. 
 
 12. Act of Congress of March 2d 1833, eh. 57, sect. 7. Force Bill, in Exparte 
 Jenkins, 0. S. ii. 144. 
 
 13. Act of Congress of September 18th 1850. Fugitive Slave Law. Id. 
 143. 
 
 14. Act of Congress of 1819. Passenger Act, 1847, 1849, sect. 10. In 
 United States T. The Anna, 0. S. ii. 421. 
 
 15. Act of Congress of March 31st 1830, sects. 4 and 5. In Wright v. Shum- 
 way, 0. S. ii. 20. 
 
 CONSTRUCTION OF WILL. 
 
 1 . Proof of the regular execution of a testamentary paper establishes a primd 
 facie case in favor of the party alleging a will. Davis v. Davis, Executor, 0. S. 
 iii. 533. 
 
 2. That the prohibitions in the will against the alienation and division, so far 
 as they are illegal, were merely void in themselves, and did not vitiate the other 
 dispositions of the will. Subject discussed. McDonough v. Murdoch, 0. S. ii. 
 400. 
 
 CONSTRUCTIVE DELIVERY. 
 
 1. The subject discussed. Cabeen v. Campbell, 0. S. vi. 561. 
 
 2. As long as the goods are on their way to the vendee, and while in the 
 hands of the middle-man, the vendor's lien remains, and he may enforce it by 
 stoppage in transitu. Id. 
 
 3. " Actual delivery of the chattel," said Ckompton, J., " is not necessary in 
 a gift inter vivos. In the case of a donatio mortis causa there is reason for requir- 
 ing some formal act. It is sufficient to complete a gift inter vivos that the con- 
 duct of the parties should show that the ownership of the chattel had been changed. 
 
 Winter v. Winter, 0. S. ix. 703. 
 
 CONSTRUCTIVE FRAUD. 
 
 Dealings between father and son, solicitor and client. See Saveryy. King, 0. 
 S. V. 506; and Greenfield v. Bates, 0. S. v. 507. 
 
 CONSTRUCTIVE NOTICE. 
 
 Will not apply where mere want of caution, as distinguished from fraudulent 
 and wilful blindness, is all that can be imputed to the customer. Woodivorth v. 
 Paige, 0. S. iv. 634. 
 
 CONSUL. 
 
 A consul of a foreign power, though not entitled to represent his sovereign in 
 a country where the sovereign has an ambassador, is entitled to intervene for all 
 subjects of that power interested ; and though he should not set forth the par- 
 ticulars of his claim, still it will do if they can be fully gathered from the allega- 
 tions of the libel and the case it sets forth, Robson v. The Huntress, O. S. ii. 
 700. 
 
 CONTEMPT. 
 
 1. Where the defendant in a habeas corpus makes an evasive or false return 
 thereto, he may bo committed for a contempt, in order to compel obedience to 
 the writ. United States ex rel. Wheeler v. Williamson, 0. S. iii. 729. 
 
CONTEMPT. 249 
 
 2. The legality of a commitment for a contempt hy one court cannot be in- 
 quired into by another court, especially one of a different sovereignty (as is the 
 case between the Federal and state courts), on habeas corpus or otherwise. 
 ntllwmson's Case, 0. S. iv. 5. 
 
 a. The refusal of a witness to answer a proper question before a prpnd jury 
 is punishable as a contempt under the statute, as committed in a proceeding upoii 
 an indictment. Peop'e v. Kelley, N. S. i. !>3i. 
 
 4. The power to punish for contempts is inherent in all courts. Ex parte Rob- 
 inson, N. S. xiii. 435. 
 
 5. The power to disbar an attorney is possessed by all courts which have au- 
 thority to admit attorneys to practice. Id. 
 
 6. If owner takes any articles from receiver's possession he is guilty of a con- 
 tempt. Matter of Day, on complaint of Benson, N. S. xiii. 782. 
 
 7. Personal service required — proceedings upon, &c. Pitt v. Davison, N. S 
 ii. 124. 
 
 8. Attachment for disobedience of a rule of court. Swinfen v. Sivinfen. 0. 
 S. V. 320. -^ • 
 
 9. A person threatening a suitor to publish concerning her a statement of 
 facts, unless her suit were withdrawn, is guilty of contempt. Ex parte Chetwmd. 
 N. S. iv. 298. ■' ' 
 
 10. Jurisdiction and mode of proceeding in cases of contempt. Id. Note. 
 
 11. Cases of contempt were not cases for juries at common law, or under the 
 constitution ; and the statute does not now require a jury to find the imprison- 
 ment beyond a day, where an order of the court has been violated. Ex parte 
 Alexander, O. S. ii, 44. 
 
 12. When we adopted the common law in this country we did not adopt all the 
 power exercised under it ; but American principles regulated the power. Id. 
 
 13. A commitment for contempt " until the further order of the court " is void 
 Id. 
 
 14. The power to punish contempt is a power only of necessity — what ought 
 to be done where a party cannot strictly comply with an order of "court. Id. 
 
 15. Supreme Court has no power to reverse a fine imposed by Circuit Court 
 for contempt. New Orleans v. Steamship Co., N. S. xiv. 317. 
 
 16. A proceeding for contempt is a special proceeding, criminal in its char- 
 acter, in which the state is the prosecutor. Eaiyht v. Lucia ^ Another, N. S. 
 xiv. 643. 
 
 17. Court commissioners have no power to issue attachments for contempt. Id. 
 
 18. If attachment is issued returnable to Circuit Court the process is void, and 
 the proceedings coram non judice. Id. 
 
 19. Want of jurisdiction cannot be waived. Id. 
 
 20. Proceedings for contempt not committed in presence of the court should 
 be conducted according to the practice in criminal trials. Bates's Case, xiv. 701. 
 
 21'. The evidence should be such as would be admissible on an indictment for 
 same offence. Id. 
 
 22. A contempt of court in the United States courts must arise from disobedi- 
 ence of or resistance to some decree or order in existence, hence where A., on 
 the'i7th day of September 1852, sold a certain patent while a suit was pending 
 in relation to it, and on the 28th of September 1852, an injunction was issued : 
 Held, that the sale was no contempt Per Green, master. Goodi/ear v. Day, 0, 
 S. vi. 632. 
 
 2.S. The history of the law of contempt in the United States courts traced and 
 discussed. Per Green, master. Id. 
 
 24. A part}' will not be adjudged in contempt for any act before service of 
 process alleged to have been disregarded. Witter v. Lyon et al., N. S. xiii. 774. 
 
 25. A rule to show cause why party should not be punished for contempt 
 may be obtained on ex parte aiiidavits, and may be discharged ou same evidence. 
 Id. 
 
 26. Rule may be discharged where party shows impossibility of compliance 
 with order of court. Id. 
 
 27. In Vermont a decree of the Court of Chaneeryfor contempt in disobeying 
 an injunction, is not removable into the Supreme Court bj appeal, it not being a 
 "final decree in the cause." Vilas v. Burton, 0. S. iv. 168. 
 
 28. Proceedings for contempt in one court, where the court has jurisdiction, 
 are not revisable in any court. Id, 
 
250' CONTESTED ELECTIONS— CONTRACT. 
 
 CONTESTED ELECTIONS. 
 
 1. The House of Representatives, in a state legislature, have no such Jurisdic- 
 tion over the counting of the votes for members as will oust the jurisdiction of 
 the common-law courts in proceedings by mandnmus against the canvassers. 
 The member elected has a right to receive the certifieate of election, and if it is 
 refused him, and given to another, he may call upon the courts for redress, by 
 mandamus. People v. Ililliard, N. S. ii. 274. 
 
 2. Its sole purpose is to procure the requisite evidence to present to the house 
 of a prira^ facie right to a seat in it, independent wholly of the question of quali- 
 fication. And the only means by which this can be obtained is by the compul- 
 sory writ of mandamus. Id^ 
 
 3. This is not the case where one person desires to be placed in an office now 
 filled by another, for in such cases mandamus will not lie. It is more analogous 
 to a demand for the books and papers belonging to an office, or for the insignia 
 of office, for which this is the proper remedy. Id. 
 
 i. The office of canvassers is merely ministerial, and as such will be con- 
 trolled by the court under this process. They are required by statute to count all 
 the rotes formally certified to them. And the fact that some of the judges of 
 elections do not appear to have been properly sworn is no objection to the valid- 
 ity of their returns. The certificate of an officer de facto is all that is required. 
 Id. 
 
 5. And if any informality had really occurred, it might have been corrected 
 before the canvassers, and should not have been allowed to operate to disfranchise 
 the voters. Id. 
 
 CONTRACT. See Common Cakeiek; Constitutional La'w; Lex Loci Con- 
 tractu ; Master and Servant ; Pleading. 
 I. Consideration — Generallt. 
 
 1. Contract of hiring — subject discussed. 0. S. iii. 651. 
 
 2. Distinction between the motive for, and the actual consideration of » con- 
 tract. Philpot V. Gunninger, N. S. xii. 188. 
 
 3. A consideration moving from A. to B., with whom C. afterwards . enters 
 into partnership and thus obtains the benefit of, will support a promise by C. 
 Id. 
 
 4. A contract of sale of goods " deliverable sound and in good order," is not 
 a warranty that the entire goods' shall be so. Townsend et al. v. Shepard, N. S. 
 xii. 399. 
 
 5. If the vendee waives the objection that they are unsound, the vendor must 
 deliver. Id. 
 
 6. If vendor refuse to deliver he must pay such damages as the vendee sustains. 
 Id. 
 
 7. Service in procuring legislation by personal influence not a legal considera- 
 tion. Frost V. Belmont, N. S. iii. 374. 
 
 8. Mutual subscriptions of money to be paid to a trustee for some common 
 object are a legal consideration. Underwood y. Waldron, N. S. iii. 183. 
 
 9. A simple request to do an act will not constitute a contract which is bind- 
 ing. Wells V. Mann, N. S. viii. 378. 
 
 10. A court will not set aside a contract for inadequate consideration alone. 
 Kidder v. Chamberlin, N. S. viii. 502. 
 
 1 1 . An agreement to take, in lieu of arrears of income of a life-interest, re- 
 coverable in equity, a certain sum, less than the estimated amount of such arrears 
 recoverable at law, is in equity void for want of consideration, and will not be 
 supported. Lovett v. Hanlcins, N. S. vi. 52. 
 
 12. Where debt is payable in specific property a new contract made before the 
 debt is due changing the mode and time of payment needs no new consideration. 
 Thrall V. Mead, N. S. vii. 832. 
 
 13. Ordinarily, the payment of money is not necessary to make a contract 
 complete. Orr's Appeal, N. S. xi. (93. 
 
 14. A subscription for stock in a railroad is a contract between the subscriber 
 and the corporation. Meloin v. ffoitt, N. S. xii. 531. 
 
 15. There is no implied contract to pay the president of a bank for his ser- 
 vices. Sawyer v.»Farmers' Bank, N. S. iii. 247. 
 
 16. An agreement without consideration to engraft new terms on an existing 
 contract is not binding. Titus et al. v. The Caiio ^ F. Railroad, N. S. xiv. 252. 
 
CONTRACT. 251 
 
 17 . A transaction in stock by way of marjiiti, and payment of gain or loss, is 
 a mere wager. Max v. Gheen, N. S. xix. 200, 
 
 18. Where stock at a fixed market value is the consideration for a contract, 
 on refusal to deliver, the value of the stock at the date of the contract is the only 
 measure of compensation. Humaston v. Telegraph Co., N. S xiv. 119.. 
 
 19. The obligation of a contract is the legal duty of performing it accordin" 
 to its terms. Lasli/ v. Phipps, N. S. xiii. 236. 
 
 20. The consideration for an accepted compromise is the release of the original 
 contract. U. L. Express Co. v. Erie Railroad Co., N. S. xiii. 370. 
 
 21. A contract without mutuality is void. Grove et al. v. Ganger, N. S. xiv. 
 643. 
 
 22. If B. promise to do certain work at specified price in case A. gets the con- 
 tract for it, without any promise on A.'s part to employ him at such price, it is 
 no contract. Id. 
 
 23. Under a contract for hiring requiring thirty days' notice of intention to 
 terminate, if an action is brought for dismissal without proper notice, a notice 
 may be given, though the full number of days had not expireil when dismissal 
 took place, in order to show that plaintiff' had now a right to serve but a portion 
 of thirty days. Lyon v. Pollard, N. S. xiv. 317. 
 
 24. In an action for terminating without thirty days' notice, the defendant 
 may show under general issue, that plaintitf was unfit to perform by reason of 
 the use of opiates. Id. 
 
 25. A discharge under seal, of a verdict for $3.50 for $67, is not invalid for 
 inadequacy of consideration. Staples v. Wellington, N. S. xiv. 194. 
 
 26. A plaintiff who agrees to discontinue without costs, will be liable for costs 
 that may accrue from resisting the agreement. Id. 
 
 27. Confederate notes were not illegal con.siderntions between citizens of the 
 United States, unless it was for the aid of the rebellion. Phillips v. Hooker, N. S. 
 vii. 40. 
 
 28. Agreement with third person to take less than demand, good. Habcock 
 T. Dill, N. S. V. 185. 
 
 29. Where debt is payable in specific property ,.a new contract made before the 
 debt is due, changing the mode and timeof pavment, needs no new consideration. 
 Thrall V. Mead, N. S. vii. 832. 
 
 30. But an additional warranty, not expressed or implied by its terms, that 
 the article sold is fit for a particular use, cannot be added either by implication 
 of law or parol proof. Witmore v. South Boston Iron Co., N. S. i. 403. 
 
 31. Nor can the question whether such warranty is fairly to be inferred from 
 the application of the terms of the written contract to its subject-matter, or from 
 the attending circumstances, be submitted to the jury ; they should be in- 
 structed that no such warranty exists in the case, /rf, 
 
 32. Where parties residing at a distance from each other agree to communicate 
 by telegraph in their business transactions, the same rules apply in determining 
 whether a contract has been made as in cases of communications by letter. 
 Trevor v. Wood, N. S. vii. 215. 
 
 33. Therefore, an offer accepted by telegraph constitutes a contract, although the 
 party making the offer attempts to revoke it before his receipt of the acceptance. 
 Id. 
 
 34. An acceptance by letter of an offer is sufficient to make a contract, not by 
 virtue of being sent through the public mail, but because it is an overt act mani- 
 festing the intention of the acceptor, and thus making the aggregatio mentium 
 which is the essence of a contract. Id. 
 
 35. Memorandum made and signed by one party in his private account-book 
 not a contract. Stannard v. Smith, N. S. vii. 831. 
 
 36. Where the minds of the parties to a contract do not meet upon the whole 
 terms of such contract, the same is void. Fullerlon v. Dalton, N. S. x. 345. 
 
 37. A contract for the construction of all the grading, earthwork, and masonry 
 for the road-bed of a railroad from a certain station to the Kennebec river, in- 
 cludes work on the foundation of a bridge across the said river. Rogers v. 
 Eogan, N. S. x. 664. 
 
 38. Validity of, based upon Confederate treasury notes. Note to Ex parte 
 Garland, commenting on Avera v. Robertson, N. S. vi. 291. 
 
 39. Validity of agreement that one shnll bid for mail contract in behalf of 
 two. Huntington v. Burdwell, N. S. vi, 315. 
 
252 CONTKACT. 
 
 40. One interested in mail contract may sign as surety, Buntingion v. Bard- 
 well, N. S. vi. 315. 
 
 41. A party entitled to be paid in Confederate notes can only recover their 
 actual value at the time and place of the contract in lawful money of the United 
 States. Tlioringlon v. Smith, N. S. viii. 739. 
 
 42. A)i agreement to give the refusal of certain land for thirty days in con- 
 sideration of §1 paid, is not a contract. Potts v. Whilehead, N. S. ix. 318. 
 
 • 43. An offer in writing within a certain time to convey land, must be accepted 
 within the time fixed. Id. 
 I 44. A contract any material part of which remains to he settled by npgotia- 
 
 i lion between the parties, will not be enforced in equity on a bill for specific per- 
 J formance. Id. 
 
 45. If A. is indebted to B., and B. to C, and by agreement A. gives his note 
 to C, it is a novation and extinguishes A.'s indebtedness to B. and B.'s to C. 
 Deever v. Aiken, N. S. ix. 638. 
 
 46. If D. holds a note of B. and C. as joint promissors, and in satisfaction 
 thereof A. talies a note of B. as principal and D. security, it is a novation. 
 Grisham v. Morrow, N. S. ix. 638. 
 
 47. Services in aiding a party in preparation for trial by disclosing names of 
 witnesses, are good consideration. Cobb v. Cowdery, N. S. vii. 572. 
 
 48. The power of courts of equity to set aside and annul executed ccmtracts 
 on the ground of inadequacy of consideration is a most delicate one, and should 
 be applied with extreme caution. Mere inadequacy of consideration is not to be 
 understood in equity as constituting per se a ground to avoid a contract, unless 
 it be so gross as to shock the conscience. In such cases it is evidence per se suf- 
 ficient to avoid" it. But where the contract is one of hazard, and the question 
 whether it will be profitable or ruinous is dependent on future contingencies, the 
 issue of which no human foresight can discover, the court has no satisfactory 
 gtaiidard by which to determine whether the price was inadequate or not, much 
 less whether the inadequacy was so gross as to constitute per se evidence of 
 fraud, and it should refuse to interfere with the legal operation of the contract. 
 Vint V. King, O. S. ii. 712. 
 
 49. Contract for service — payment at certain rate per month — abandonment 
 of contract before expiration of term. Taylor v. Laird, O. S. v. 508. ' 
 
 50. Contract of decedent made during his lifetime jointly with others — his 
 estate is liable therefor. Burgoyne v. Insurance Co., 0. S. iv. 701. 
 
 51. The mere establishment of a particular line of road, and erection of a 
 bridge in a particular location in a town by a railroad company, after a contro- 
 versy with the inhabitants with respect thereto, does not amount to a contract so 
 as to preclude the company, after a lapse of time, from changing the direction of 
 their line and the position of the bridge. Mlhior v. Neuo Jersey Railroad Co., 0. 
 S. vi. 6. ■ 
 
 52. When a party having the ability to perform an executory contract on his 
 part, assigns his interest in such contract, he must be considered as equitably 
 bound to perform it, so as to give the beneiit of it to the assignee. He cannot 
 he permitted to say he is not ready. If on the day fixed for performance he had 
 the ability, he must be considered, so far as the assignee is concerned, as having 
 the willingness. James v. Cincinnati, Hamilton ^ Dayton Railroad Co., 0. S. 
 vi. 718. 
 
 53. The assignment of a contract, and notice of that assignment, creates no 
 additional burden, nor does it impose any additional duty of active diligence upon 
 the contractor. If the subject-matter of the contract be left within the power 
 and under the control of the assignor, the risk of its being impaired or destroyed 
 so as to defeat the performance is assumed by the assignee. There is no prin- 
 ciple by which it would be thrown on the other party. Id. 
 
 54. If the article which a party agrees to supply has a certain and known 
 character, he has no right to change or alter its character, and still expect it to 
 be received in fulfilment of the contract, unless the change be within the con- 
 templation of the parties. If the acts of one of the parties, alter the making of 
 a contract, have so injuriously affected the subject-matter of the contract as to de- 
 stroy the benefits expected from it by the other party, this would bo a defence. Id. 
 
 55. Consideration of — subject discussed. 0. S. ii. 257-385, 449. 
 
 56. Contract to pay whenever the obligor, in his opinion, shall be able, im- 
 poses a moral, but not a legal obligation to pay. Sdion v. Fon Bonnhorst, 0. 
 S. vi. 151. 
 
CONTRACT. 25a 
 
 5". In everr execntory contract for the future sale and delivery of articles of 
 merchandise, the law will imply an agreement that the property shall he of mer- 
 chantable quality. Uamilton v. Gani/ard, N. S. i. 236. 
 
 58. llepresentations made by a friend or relation of a man as to his fortune, 
 on the faith of which a woman agrees to marry him, will not render the party so 
 making them liable in case they prove false, unless he made them fraudulently 
 or with knowledge of their falsity. Coleman v. Rowland, 0. S. ii. 509. 
 
 59. The common-law liability of a common carrier may be limited and quali- 
 fied by express contract. Insurance Co. v. Chase, 0. S. iii. 443. 
 
 CO. The owner of the goods may assume the risk. Id. 444. 
 
 61. A contract upon which an action would lie by the personal representatives of 
 a party thereto in case of his death, for the enforcement of his rights and reme- 
 dies under the same, is legally assignable. So held in respect to a written agree- 
 ment by the defendant to deliver to the plaintiff's assignor all the potatoes the 
 defendant should raise the following season, delivered on the boat, at a specified 
 price per barrel. Sears v. Conooer, N. S. i. 241, 
 
 62. School directors should keep a record of their proceedings, but the want 
 of 5-ach a record does not make void a contract made by them in behalf of the 
 district. Directors \. Ray, 0. S. ii. 122. 
 
 63. As to what is an agreement to pay the debt of another, and what an orig- 
 inal undertaking. See Qumtard v. De Wo'f, N. S. i. 181. 
 
 64. Where an offer by letter to supply goods is accepted, but the answer to 
 the offer adds a further stipulation to the effect that goods already supplied should 
 he paid for at the rate contained in the offer, that is a new term in the agreement 
 and must be shown to be accepted. Hexjward v: Barnes, 0. S. ii. 703. 
 
 65. Incomplete — when plaintiff' may recover on a quantum- meruit, although 
 the whole amount of the poods to be made under the contract were not finished. 
 Brown v. Wood, 0. S. ii. 701. 
 
 66. One to whom a slave is hired for a year is entitled to no abatement of the 
 price because of the death of the slave after the commencement of the term. 
 Lennard v. Boynton, O. S. iii. 428. 
 
 67. A receipt containing stipulation or condition between the parties is in the 
 nature of a contract. Wilson v. Bailey, 0. S. iii. 432. 
 
 68. A master cannot absolve himself from the legal and equitable obligation 
 to take care of his slave, and if he refuse to do so he is liable for medical and 
 other relief furnished by others. Thompson v. Alexander, O. S. iii. 543. 
 
 69. If a slave be hired to an insolvent or be out of the possession of the hirer, 
 and be placed in a situation to require instant and indispensable medical aid or 
 other assistance, in such a case the owner as well as the liircr wo^ld probably be 
 lial)le for necessary medical and other services. Jd. 
 
 70. The hirer of a slave and not the general owner is liable in an action for 
 medicine and medical services rendered the slave while the term of hiring con- 
 tinued — the services and medicine not being rendered at the request of the owner, 
 hut at the request of the hirer. Id. 
 
 71. A particular custom in a country that the general owner shall pay the 
 expenses, does not supersede or control the legal principle. Id. 
 
 72. The hirer of a negro is not entitled to an abatement from the price on 
 account of the sickness of the negro, unless the sickness originated in causes 
 existing at the time of hiring, and which were unknown to the hirer. Id. 
 
 73. The hirer of a slave is bound to use ordinary diligence in regard to the 
 health of the slave, that is, such diligence as a prudent man commonly takes of 
 his own slaves, and this ordinary diligence is to be employed not only in pro- 
 tecting the slave from danger and disease, hut likewise in discovering the disease, 
 if it exi.sts, and in its treatment also. Id. 
 
 74. If the hirer of a slave fail to perform his duty in supplying the slave with 
 medical and other necessary assistance, the owner may do it and look to the 
 hirer for imbursement. Id. 
 
 75. Under special circumstances, the hirer, although preliminarily liable to the 
 physician, might, nevertheless, he entitled relief, as between the owner and him- 
 self, especially in a court of equity. Id. 
 
 76. If a slave, hired for general and cpmmon service, be employed at any 
 hazardous business without the consent of the owner, and death, or any other 
 damage ensue, thp hirer would make himself liable for the injury. Id. 
 
 77. Notwithstanding the hirer be answerable in the absence of any agreement 
 
2M CONTRACT. 
 
 to the T!oi)trary, for xrxpenses nttenrlaiit on the sickness of a slave, it is competent 
 to protect himself by contract. Thompson v. Alexander, O. S. iii. 543. 
 
 78. Theory of implied contract — subject discussed. O. S. iv. 321. 
 
 n. ToUBEAKANCE. 
 
 79. Agreement to forbear suing, pood consideration for third person's promise 
 to pay the debt. Bank v. Wixon, N. S. vi. 184. 
 
 80. No action lies on a promise by a railroad company to pay to the widow 
 of one who was killed by an accident on their railroad, a certain sum of money, 
 in consideration of her forbearance to sue them for damages. Pal/ret/ v. Port- 
 land, Saco ^ Portsmouth Ra'droad Co., N. S. i. 690. 
 
 III. NATnEAL Affection. 
 
 81. A promise by a father to give up certain notes executed by his son, is 
 executory, and natural love and affection is not a sufficient consideration for such 
 a promise. Denman v. McMahin, N. S. xii. 530. 
 
 IV. Moral Obligation. 
 
 82. Where a party, bound in conscience to do a certain act, executes a writing 
 hinding him in law, he will not be excused from it on the ground that a decision 
 of the Supreme Court was known to the other party, and not to him, which 
 declared his first obligation invalid in law. Cornnan v. Bowser. 0. S. i 120. 
 
 83. Promise to perform a legal duty no consideration, aliter as to moral duty. 
 Cobb V. Cuwderij, N. S. vii. 572. 
 
 V. Compromise of Doubtful Claim. 
 
 84. A written contract, unsealed, to take "fifty per cent, in full of amount 
 due," given by a creditor to his debtor, possesses no mutuality, and is no defence 
 to a suit for the entire demand. Webb v. Stewart, N. S. xi. 529. 
 
 VI. Contract op Sale. 
 
 85. When specific performance will not be decreed of a land contract. Cham- 
 bers V. fAverviore, N. S. vi. 635. 
 
 8fi. One seeking to avoid contract cannot afterwards enforce. Railroad Co.r. 
 Watson, N. S. vi. 718. 
 
 87. Where a vendor of real estate, on default in the terms of payment by 
 vendee, goes into a court of equity and has the contract declared void, it does 
 not entitle the vendee to recover back the part of the purchase-money paid. 
 Hansbrough v. Peck, N. S. vii. 74. i 
 
 88. The seller of a book-case warranted it to be an ancient book-case, but 
 it proved to be a modern one ; the purchaser refused it, and it was held, purchaser 
 not liable. WoodgMe v. Wellon, O. S. iii. 699. 
 
 89. Distinction between a representation and a warranty. See Harnor v. 
 Grooes, 0. S. iii. 699. 
 
 90. Where A. agreed to deliver B. all the lumber he should make at his mills 
 for a specified time, at a fixed price, and $100 was paid on account ; A. failed to 
 perform, and B. sued on the agreement and recovered judgment ; afterwards, B. 
 sued for the $100, for money had and received : held, that the former judgment 
 was a bar to a recovery in the second action. Dalton v. Bentley, 0. S. iii. 635. 
 
 91. Plaintiffs sold in Staffordshire a quantity of hoop-Iron, to be delivered at 
 Liverpool in January and February by canal boats, &c. It was bright when put 
 on board, hut reached Liverpool in a rusty state. Defendant refused it. Held, 
 that defendant was bound to accept it if only so far deteriorated as necessarily re- 
 sulted from the transportation, and an instruction to the jury that defendant was 
 entitled to have it delivered at Liverpool in a merchantable condition, was error, 
 Bidl V. Eobison, O. S. iii. 639. 
 
 92. Of sale of land — refusal of wife to execute deed. Equity will relieve 
 purchaser. Pauly. Young, 0. S. iv. 412. 
 
 93. For delivery of 500 hogs of an average weight of 190 pounds — effect of 
 the hogs averaging only 187 pounds. See Coleman v. Edwards, 0. S. iv. 695. 
 
 94. Where goods are delivered under contract of sale, the purchaser is boupd 
 to accept them, or, upon discovering their inferiority, reject them and give notice 
 of the rejection. Ely v. O'Leary, O. S. v. 311. 
 
 95. The delivery and acceptance of part of the wood the first winter, on a con- 
 tract of sale of certain cords of wood, the vendor to deliver as much as he could 
 one year, and the balance the next, will take the case out of the Statute of 
 Frauds. Oault v. Brown, N. S. viii. 572. 
 
CONTRACT. ;255 
 
 VII. CoNTnACT MADfi ^T AOENT. , 
 
 96. A corporation cannot adopt the acts of its agents as between itself and 
 strangers, when such acts are beneficial to itself and repudiate the same acts when 
 the result is disastrous, on the ground of want of authority in the agent to act 
 under its charter of incorporation. Noi/es v. Rutland ^ Burlington Railroad Co., 
 O. S. iv. 231. 
 
 97. In an action for goods sold, a letter from the defendants' broker announc- 
 ing to his principals a purchase on their account, on certain terms stated, was 
 held to be evidence of a precedent authority to purchase, not merely on precisely 
 the same terms stated, but upon terms not unusual or unreasonable, and in sub- 
 stance the same, and held also that the seller's right to resort to the undisclosed 
 principals on a contract made by a broker in his own name, was not affected bv 
 their delaying to do so until parties to whom the broker had resold hart become 
 insolvent ; the defendants, the original purchasers, not having paid the brokers in 
 the meantime, nor otherwise altered their position. Campbell v. Hicks, 0. S. vii. 
 510. 
 
 98. Whether in a particular case, a merchant in New York shipping goods to 
 his correspondents in the interior, had authority to make a contract on behalf 
 of the correspondent for shipment on different terms from those ordinarily 
 adopted by common carriers, is a question of fact to be determined by the jury 
 upon the evidence ; and the court cannot properly be asked to make any charge 
 that shall absolutely dispose of the fact in controversy. American Transportation 
 Co. V. Moore, O. S. vii. 352. 
 
 99. Where the defendant answers that he executed the contract upon whicli 
 he is sued as a broker or agent, and after the testimony is before the court claims 
 to amend his answer so as to show he executed the contract under a mistake of 
 his legal responsibility thereon, the court will not grant leave to amend unless 
 the facts proved show at least a reasonable probability that this can be estab- 
 lished. Wilson v. Bailey, 0. S. iii. 432. 
 
 VIII. CONTBAOTS MADE BY PllBLIU OFFICIALS. 
 
 100. Where contracts for paving city streets are required by law to be let to 
 the lowest bidder. May v. City of Detroit, N. S. xii. 149. 
 
 101. A party defrauded in contract is not debarred of his rights, nnless his de- 
 lay to assert them amounts to a waiver. Martin v, Ash, N. S. x. 533. 
 
 102. Ordinance of municipal corporation must follow charter strictly or con- 
 tract under it will be void. Cowen v. West Troy, N. S. iv. 510. 
 
 103. Where a contract between a county and an individual shows upon its 
 face that it was made by the county for professional services, which services are 
 such as the law requires to be done by county prosecuting attorney, such contract 
 is primS, facie void. Clough v. Hart, N. S. xi. 95. 
 
 104. Lien may exist against a light-boat building under contract for United 
 States. Briggs v. Light-boat, N. S. iii. 566. 
 
 105. The Act of June 1862 requiring contracts for military supplies to be in 
 writing is not infringed by the proper officer accepting tliem after the stipulated 
 time, nor is his verbal agreement to extend the time invalid. Salomon v. United 
 Stales, N. S. xiii. 588. 
 
 106. If the government receives them there is an implied contract to pay their 
 val uo. Id. 
 
 107. By the original ordinance for the construction and management of the 
 gas works of the old city of Philadelphia, the city was authorized, if it should 
 deem expedient, to take possession of the w(^-ks and to convert the stock tliereby 
 created into a redeemable loan. The works in the meantime were to be con- 
 trolled and managed in all respects by a board of trustees appointed by the city 
 councils. Additional stock was created by subsequent ordinances with the same 
 reservation of right to the city. In June 1841, the city exerci.-ied this right, 
 and certificates of loan were issued to the former stockliolders. On June 14th 
 1841 an ordinance was passed, authorizing a further loan for the extension of the 
 works, by which the works were pledged for the payment of principal and interest 
 of " all loans made for or on account of said gas works ;" the faith of the city 
 was pledged that the price of gas should not be reduced so as to reduce the clear 
 profits below 8 per cent, a year ; and it was expressly stipulated that the gas 
 works and the funds thereof should be wholly controlled and managed by a board 
 of trustees, elected and constituted as heretofore, and who were to pay no part 
 of the said funds into the city treasury until all the principal and interest of 
 
256 CC»5^TRACT. 
 
 said loans.shonld be fully paid. Loans were taken under the proviaions of sub- 
 sequent ordinance. In 18.54, after tlie passage of the act to consolidate the city 
 of Philadelphia, which provided for the creation of a department of gas, an or- 
 dinance was introduced and passed by the common council of the new city, 
 which in effect took the whole control and management of the gas works and 
 their funds from the trustees and placed it in the hands of an officer, to be styled 
 Chief Engineer of the Gas Works, who was to be at the head of that depart- 
 ment. In consequence of this action the loanholders filed a bill to prevent the 
 city from intermeddling or interfering with the trustees or from attempting to 
 invalidate the trust Held, that the ordinance of 1841 created a contract between 
 the city and the loanholders, present and future, which it was incompetent to in- 
 validate, either by removing the property of the works from the trustees or by 
 altering the price of gas so as to lower the profits of the works below eight per 
 cent. Western Saving Fund Society of Philadelphia v. City of Philadelphia, O. S. 
 iv. 669. 
 
 108. A city in the supply of gas to its citizens, acts as aprivate corporation, and 
 is subject to the same duties, liabilities and disabilities. It cannot impair the obli- 
 gation of a contract entered into by it in that capacity, because it may deem it 
 for the benefit of its citizens so to do. Id. 
 
 109. How far municipal corporation is liable for negligence of contractor for 
 paving of streets. The City v. Stone, 0. S. iv. 628. 
 
 110. Contracts by public officials — when compelled to award to the lowest 
 bidders, &e. Howlett v. Bruck, 0. S. v. 125. 
 
 IX. Execution of, how to ek proved. 
 
 111. Whether a judgment is an executed contract. Note to Blystone v. Bly- 
 stone, N. S. vi. 205. 
 
 112. Contemporaneous conversation inadmissible. Pilmer v. Bank, N. S. iv. 
 336. 
 
 113. The execution of a witnessed instrument which is offered in evidence by 
 one who is a party to it cannot be proved without calling the attesting witness, 
 if he is living, competent and within reach of the process of the court ; and this 
 rule is not altered by the passage of a statute authorizing parties to testify. 
 Brigham v. Palmer, N. S. i. 503. 
 
 X. Lex Loci. 
 
 114. Validity of blank transfer of stock governed by law of state where to 
 take effect. Bridgeport Bank v. N. Y. Sr N. H. Railroad Co., N. S. i. 210. 
 
 115. When parties choose to put their cpntract in writing, courts are to ascer- 
 tain the place where the coniract is made, the time when, and the place where 
 the money is payable as well as the rate of interest, by reference to the written 
 instrument. Potter y. Tallman et al., N. S. i. 376. 
 
 116. A contract for the sale of personal chattels over the value of §30 made 
 in New Jersey, but to be performed in Pennsylvania, must, in order to be l)ind- 
 ing, be made according to the formalities prescribed by the statute of New Jersey 
 for the prevention of frauds and perjuries. Dacosta v, Davis, O. S. i. 668. 
 
 1 17. Contract made in one state can be enforced in another, although rhe same 
 contract would have been void if made in the latter state. Allen v. Shuchurdt, 
 N. S. i. 14. But see foot-note to same case as to the practice in England, page 
 
 118. Contract in a foreign state — so much of the law as affects the rights and 
 merits of the contract is adopted from the foreign country ; so much of the law 
 as affects the remedy only is t»ken from the local law of the country where the 
 action is brought. Foot-note to Allen v. Schuchardt, N. S. i. 15. 
 
 119. Oral contract for the sale of goods made in a state where the Statute of 
 Frauds does not prevail, can be enforced in Missouri, where the statute does exist. 
 Id. 16. 
 
 XI. What will render a Contract Void, generally. 
 
 120. Contracts valid when made, continue valid, notwithstanding a change in 
 the business which led to their creation. Railroad Co. v. Richmond, N. S. xiii. 
 707. 
 
 121. He who seeks the rescission of a contract on the ground of fraud or un- 
 due influence, must clearly prove his right to relief. Bailey v. Litten, N. S xiv. 
 893. 
 
CONTRACT. 257 
 
 122. Persuasion unaccompanied by falseliood, duress or constraint, does not 
 constitute fraud or undue influence. Baileij v. L'dlen, N. S. xiv. 393. 
 
 123. Parties not complying with contract ior purchase of road and organiza- 
 tion of new company, cannot claim any benefits under it. Carpenter v. Catlin, 
 N. S. V. 248. 
 
 124. Military service. — Substitute deserting cannot recover the amount con- 
 tracted for with principal. Gaugter v. Price's Adin'r, N. S. v. 59. 
 
 XII. Ignorasce, Fraud and Misrepkesentation. 
 
 12.5. Court requires the clearest proof of fraud or mutual mistake to entertain 
 a suit to reform a written contract. Botsford v. McLean, N. S. iv. 308. 
 
 126. How far an executory contract to defraud creditors will be enforced. 
 Note to Blystone v. Blystoue, N. S. vi. 20.'j. 
 
 127. The remedy for fraud is an action ojrainst the guilty person, and not an 
 action on the contract. Leech v. Caldwell, N. S. v. 280. 
 
 128. A contract void on account of fraud may be confirmed without a new 
 consideration. Negley v, Lindsai/, N. S. xi. 193. 
 
 129. A party knowingly confirming a contract against conscience, is barred 
 from relief. Id. 
 
 130. Impossible considerations. — The law will not allow the workman, after 
 he has obtained money as the price of stipulated services which he cannot per- 
 form, by false and fraudulent representations as to his skill in his business, to 
 defeat a recovery for the deceit and consequent injury by setting up the im- 
 practicability of those services. McGarv. ]Villiams, 0. S. iv. 189. 
 
 131. A contract obtained by fraudulent representations cannot be sustained by 
 the fraudulent party to the injury of the party imposed upon. Pratt v. Phil- 
 brook, 0. S. i. 189. 
 
 132. A representatton made by a party, not knowing that it is false, is binding 
 upon him, and if the other party enter into a contract on the faith of its truth, 
 the court will set aside the same altogether, and not merely rectify it. Though the 
 other party does not examine the books for four years, during which the partner- 
 ship continued, it not being his duty to do so, it will not bar him of relief on the 
 score of negligence or acquiescence. The bringing of an action against the part- 
 ners, and recovering a verdict against the survivor of them, does not prevent the de- 
 ceived party from seeking relief iu equity. Rawlins v. Wickham, 0. S. vii. 566. 
 
 XIII Illegal Consideration. 
 
 133. If part of consideration is void, contract may be good ; aiiter, if any part 
 of consideration be illegal. Cobb v. Cowdery, N. S. vii. 572. 
 
 134. A promise by a party to do what he is bound in law to do is an insuffi- 
 cient, but not an illegal, consideration — such promise is merely gratuitous, an I 
 not binding. Jtd. 
 
 135. Where a person employed for a certain term, at a fixed salary payable 
 monthly, is wrongfully discharged before the end of the term, he may sue for 
 each month's salary as it becomes due ; and the first judgment will not be a bar 
 to another action for salary subsequently coming due. Huntingdon v. Ogdenburj 
 Railroad Co., N. S. vii. 143. 
 
 136. A contract to prosecute a claim against the United States for twenty per 
 cent, of the amount, is contrary to the Act of Congress t() prevent frauds on the 
 treasury, and therefore void. Jones v. Blacklidge, N. S. xi. 773. 
 
 137. Where any part of the consideration is illegal, the contract is wholly 
 vitiated, but it is otherwise where part is only void pr voidable. Clements v. 
 Marston, N. S. xii. 530. 
 
 138. Where one enters into a contract to perform services, part of which are 
 illegal, he cannot recover in assumpsit upon a quantum meruit for any portion. 
 Bixley v. Moor, N. S. xi. 721. 
 
 139. No right can be derived under any contract made in expresss opposition 
 to the laws of the place in which such contract is made. B. Sf 0. Railroad Co. 
 T. Glenn, N. S. viii. 247. 
 
 140. Courts will never presume a contract to be illegal. Craft v. Bent, N. 
 S. xi. 329. 
 
 141. The enactment in section 18 of 8 & 9 Vict., e. 109, making void all con- 
 tracts by way of wagering or gaming, applies to a wager made on a game in 
 itself lawful, and the proviso in the same section does not except betting between 
 two persons at the game of billiards, where no money is produced or staked at 
 the time. Parsons v. Alexander, 0. S. iv. 123. 
 
 17 
 
258 CONTRACT. 
 
 142. A contract for the sale of poods on a Suntlay is Void ; but the parties, by 
 subsequently acting upon it as a subsisting and valid agreement, may ratify it. 
 Banks V. Werts, 0. S. viii. 423. 
 
 XIV. In Eestuaint of Trade. 
 
 143. Contracts in restraint of trade must be judged according to the circum- 
 stances on which they arise. Oregon Steam Navigating Co. v. Winsor, N. S. 
 xiv. 120. 
 
 144. The sale of a steamer on condition that it should only be employed to 
 navigate certain waters is not void as being in restraint of trade. Id, 
 
 ' 145. A limit of two hundred miles may not be unreasonable. Harms v. Par- 
 sons, N. S. ill. 627. 
 
 146. Soliciting orders for another not a breach. Clark v. Watkins, N. S. iii. 
 627. 
 
 147. Nor lending money-to a person in the trade in question on mortgage of 
 his trade premises. Bird v. Lake, N. S. iii. 627. 
 
 ' 148. Nor fitting up houses and selling them for the purposes of such trade. 
 
 Id. 
 
 149. Not to set up business of making shoe cutters in the state, is illegal, 
 being in restraint of trade. Taylor v. Blanchard, N. S, vii. 58. 
 
 150. In restraint of trade in particular locality is valid. McClurg's Appeal, 
 N. S. viii. 630.- 
 
 XV. When void as against Public Policy. 
 
 151. A compromise of private injury is binding, hence a promise to pay for 
 withdrawing opposition to a road through plaintiffs land is valid. Weeks v. Lip- 
 pencott, N. S. ii. 505. 
 
 152. Where a contract is void on the ground of public policy, or being against 
 a statute, its confirmation is affected with the original taint. Negleij v. Lindsay, 
 N. S. xi. 193. 
 
 153. Condition in policy of insurance restricting right to bring action, except- 
 ing in the state incorporating the company, is void. Eeichard v. Manhattan Life 
 Ins. Co., N. S. i. 547. 
 
 154. An agreement by vendors of stock that new directors nominated by the 
 purchaser shall be substituted for the present board, is contrary to public policy, 
 and will not be specifically enforced. Fremont v. Stone, N. S. iv. 183. 
 
 155. To procure recruits for United States army, not against public policy ; 
 may recover a sum agreed to be paid for such services. Combs v. Scott, N. S. vi. 
 568". ^ 
 
 156. A contract to pay money for the exercise of influence in procuring a 
 pardon is -void as against public policy. Express Co. v. Reno, N. S. xi. 750. 
 
 157. The law will not lend its aid to carry into effect a cAitract which is con- 
 trary to sound public policy, but will leave the parties as it finds then in pari 
 delicto. Id. 
 
 158. But this doctrine has no application to executory contracts. In all such 
 cases the parties can avail themselves of the locus penitentice, rescind the contract, 
 and recover back any money or property advanced under it. Id. 
 
 159. A contract by the children to release all their right to their father's land 
 to one, in consideration of his supporting him for life, is not contrary to public 
 policy. Walker v. Walker, N. S. xi. 196. 
 
 160. Though two of the children were married women, who did not acknow- 
 ledge the deed as such, it was binding on the others. Id. 
 
 161. Though it was not a legal conveyance, it would be supported after the 
 father's death in equity as an estoppel. ^ Id. 
 
 162. To waive exemption of wages from attachment, is void. Firmstoiie v. 
 Mack, N. S. V. 253. 
 
 163. In partial restraint of trade, not illegal. Clark v. Crosby, N. S. v. 316. 
 
 164. Agreement to pay certain sum at promissor's death, with gross sum for 
 interest thereon, though at death more than legal interest, is not usurious. 
 Parker v. Coburn, N. S. v. 383. 
 
 165. When contract by married woman separated from her husband to give 
 up control of her children, is valid. Dumain v. Gwynne, N. S. v. 505. 
 
 166. Power of court on habeas corpus, in such case. Id. 
 
 167. A contract to pay a certain sum for aid in procuring a marriage is void, 
 and no damages can be recovered for its breach. Crawford v. Russell, N. S. xi. 
 592, 
 
CONTEACT. 259 
 
 168. A contract in violation of the public policy of a state will not bo enforced, 
 tliough it has been recoanisod by the courts of another state. V. L. E. Co. ■f. 
 Erie Railroad Co., N. S. xiii. 390. 
 
 169. A contract to forbear purchasing an interest in certain lands, is not void 
 as against public policy. Morrison v. Darlimj, N. S. xiv. 754. 
 
 170. A contract for one physician to practice and prescribe in the name of 
 another, is contrary to public policy, and will not be enforced. Jerome v. Bitje- 
 hto, N. S. xiv. 581. 
 
 171. A contract giving certain individuals the exclusive right to transport 
 certain freight over a railroad, is void from considerations of public policy. 
 Union Locomotive Express Co. v. Erie Railway^ N. S. xiii. 390. 
 
 172. A contract for the sale of goods on a Sunday is void, but the parties by 
 subsequently acting upon it as a subsisting and valid agreement, may ratify. 
 Banhs V. Werts, 0. S. viii. 423. 
 
 173. The government as a contractor cannot be held responsible for the acts 
 of the government as a sovereign. Jones v. United States, N. S. v. 353, 
 
 174. Contract for advertisement in Sunday newspaper is void. Smith v. 
 Wi'cox, N. S. ii. 59. 
 
 175. An act done on Sunday, but not in the ordinary calling of the parties, 
 not void in Khode Island. Allen v. Gardiner, N. S. ii. 442. 
 
 XVI. Intekpketation and Constkuction. 
 
 176. Subject discussed. N. S. ii. 129. 
 
 177. A contract to manufacture " retorts like the one before furnished," im- 
 plies more than likeness in " size, shape and exterior form." They must also 
 be of the same material and workmanship. Whiimore v. South Boston Iron Co., 
 N. S. i. 403. 
 
 178. Such a contract cannot be controlled by proving a custom in the vicinity 
 of the transaction, that founders shall not be held to warrant their manufactures, 
 unless by express contract; or, in case of apparent defects, and the absence of 
 any express agreement that they shall have their castings returned in a reason- 
 able time, and the right to replace them by new ones. Id. 
 
 179. Is not to be governed by what either party understood, unless such under- 
 standing was induced by the conduct of the otlier party. Kennedij ^ Baileij v. 
 Railroad Co., N. S. xiii. 327. 
 
 180. Where a contract is in writing, the intention of the parties must be col- 
 lected from the instrument itself. Pilmer v. Bank, N. S. iv. 336. 
 
 181. Words are to be understood in their popular sense, unless in respect to 
 the subject-matter, by known usages, they have acquired a peculiar sense distinct 
 from the proper sense. Id. 
 
 182. Contemporaneous conversations and agreements are inadmissible in an 
 action on a written contract, for the purpose of showing the meaning or intention 
 of the parties. Id. 
 
 183. In an action on a written contract, it is competent to show by parol evi- 
 dence that words used therein had, at the time such contract was entered into, a, 
 local meaning different from their usual signification. Id. 
 
 184. In an action on a draft payable in "currency," parol evidence is admis- 
 sible to show the peculiar meaning of the word " currency." Id. 
 
 185. Where a bond is convertible into stock within a certain time, an agree- 
 ment to extend the time of payment of the bond does not extend the right of 
 conversion. Muhlenberg v. Railroad Co., N. S. iv. 184. 
 
 186. Loan of corporation payable at a fixed time and place ceases to bear in- 
 terest at that time whether payment is demanded then or not. Emlen v. Lehiyh 
 Co., N. S. iv. 253. 
 
 187. A simple agreement between owners of adjacent lands to erect uniform 
 buildings thereon does not, by implication, require that the buildings shall remain 
 the same after erection. Hubbell v. Warren, N. S. iv. 186. 
 
 188. If a thing sold is of greater or less value according to the lapse of time, 
 time is of the essence of the contract. Gale v. Archer, N. S. iv. 319. 
 
 189. As in case of a sale of farm with growing crops and stock requiring per- 
 sonal attention. Id. 
 
 190. Or where vendor is to vacate his home and seek a new one. Id. 
 
 191. For sale of horse for 1000 dollars, part cash, and part in thirty days, 
 the part paid to be forfeited in case of default, is executory only, and does not 
 
260 CONTRACT. 
 
 give title, on which troTcr will lie until the payment of the whole price. Whit- 
 comb V. Huvgerford, N. S. iv. 190. 
 
 192. Title under agreement of A. to purchase lumherwith B.'s money, and 
 deliver to him on payment of charges. Weaver v. Darhy, N. S. iv.' 379. 
 
 193. Execution against A. 's interest. Replevin bv purchaser. Id. 
 
 194. Agreement to build, and implied agreement to have the place ready — 
 builder may recover for increased expenses in consequence of neglect to have the 
 place ready. AUerman v. Mayor, N. S. iv. .502. 
 
 195. Representations and statements. Behn v. Burness, N. S. iii. 442. 
 
 196. In an action where the question at issue relates solely to the effect of the 
 transaction at the place where it was entered into, the liability of the defendant 
 is to be determined by the lex loci contractus, Scott v. Pilkington, N. S. iii. 442. 
 
 197. The Statute of Frauds does not require a promise to be in v.riting when 
 it is in effect to pay the promissor's own debt, tliough in form it is a guarantee 
 of that of another person. Malone v. Keener, N. S. iii. 312. 
 
 198. Subscription paper to pay to treasurer — failure to elect on the day ap- 
 pointed. Wayne, ^c, Institute v. Greenwood, N. S. iii. 190. 
 
 199. One who advertises a reward for information is liable at common law, 
 and the Statute of Frauds does not apply. Williams v. Byrnes, N. S. iii. 627. 
 
 200. Parties engaging an inventor to perfect a machine have no claim for im- 
 provements conceived by him after expiration of the contract. Appleton v. 
 Bacon, N. S. iii. 5i. 
 
 •201. An agreement to "cancel" an indebtedness is an agreement to pay it. 
 Auburn City Bank v. Leonard, N. S. iii. 2.54. 
 
 202. To put a party in command of a boat does not include keeping him there. 
 McKee V. Kinney, N. S. iii. 634. 
 
 203. When there is a written contract between the parties the court is to con- 
 strue it.- Colebrook v. Merrill, N. S. xi. 335. 
 
 204. When it is averred in a petition that a contract susceptible of two mean- 
 ings was intended to have a particular one, it will be so construed on an issue 
 joined by demurrer. Croft v. Bent, N. S. xi. 329. 
 
 205. The rule of comity adopts the law of the country where the contract is 
 made, in determining its nature, construction and validity, unless such construc- 
 tion is contra bonos mores, or against some positive law of the place where the 
 contract is sought to be enforced. B. ^ 0. Railroad Co. v. Glenn, N. S. viii. 
 247. 
 
 206. Each distinct portion of a contract complete in itself. Swifi v. Opdyke, 
 N. S. V. 56. 
 
 207. May make it one and the same, but dependence of the parts will not be 
 assumed. Id. 
 
 208. In eit^ler case delivery of a portion of the goods will take that portion 
 out of the Statute of Frauds. Id. 
 
 209. A contract for a certain number of "dollars," though stipulated to be 
 paid in gold, is not a contract for gold as bullion or merchandise, but as money, 
 and therefore payable in any lawful money. Buchegger v. Schultz, N. S. v. 95. 
 
 210. Time of payment, depending upon receipt of money from a government 
 contract. Marble Co. v. Man, N. S. v. 123. 
 
 211. What included in "expenses of carrying out agreement" to organize 
 new company. Railroad Co. v. Titus, N. S v. 184. 
 
 212. By corporation cr blank form, with fac-simile seal, not under seal. Bates 
 V. Railroad Co., N. S. v. 506. 
 
 213. Right of holder of contract for sale of stock to dividends. Lombardo v. 
 Case, N. S. V. 564. 
 
 214. Where subscriptions to stock are made to be paid in instalments, and cer- 
 tificates of stock are to be issued for the several instalments, a readiness and 
 willingness to issue the certificates at the time payment is to be made, is all that 
 can be required. James v. Cincinnati, Hamilton ^ Dayton Railroad Co., O. S. 
 vi. 718. 
 
 215. In an action to recover money agreed to be pnid for the stock ; an aver- 
 ment of a readiness and willingness to issue and deliver the certificates of stock 
 is necessary. The right to enforce payment is not distinct and independent from 
 the ability to issue and deliver the stock. If the subscriber cannot get the stock 
 the payment of money cannot be enforced. The acts to be done must be re 
 garded as contemporaneous. Id. 
 
CONTRACT. 261 
 
 216. A. nnd B. made an agreement in writing, by which A. agreed on or he- 
 fore a certain time to sell and deliver up all his stock and trade, and tools used 
 iii manufacturing tinware, to B. at specified rates, which B. agreed to pay there- 
 for. The agreement further contained the following clause .• "It is also hereby 
 agreed between the parties, that in case either party shall fail to comply with the 
 terms of this agreement, the party so failing shall forfeit to the other party the 
 sum of three hundred dollars, which shall be paid in full, on or before the for- 
 feiture as above." Held, that on a failure by B. to perform the contract, he 
 was liable for the full sum of three hundred dollars as liquidated damages. 
 Li/nde V. Thompson, N, S. i. 247. 
 
 XVII. Wheu Varied et Subsequent Pakol Agkeement ok bt Custom. 
 
 217. Where a contract is made by written correspondence solely, it must be 
 treated as a contract in writing, not subject to addition or alteration- by proof of 
 the acts, declarations, and intentions of the parties aliunde. Whilmore v. Soutk 
 Boston Iron Co., N. S. i. 403. 
 
 218. But it is competent to show that the parties subsequent to entering into 
 the same, consented to waive any of its provisions, and to substitute others in 
 their stead. Id. 
 
 219. But an additional warranty, not expressed or implied by its terms, that 
 the article sold is fit for a particular use, cannot be added, either by implication 
 of law or parol proof. Id. 
 
 220. Nor can the question whether such warranty is fairly to be inferred from 
 the application of the terms of the written contract to its subject-matter, or from 
 the attending circumstances, be submitted to the jury ; they should be instructed 
 that no such warranty exists in the case. Id. 
 
 221. A contract to manufacture "retorts like the one before furnished," im- 
 ports more than likeness in "size, shape, and exterior form." It has reference 
 to the material and workmanship. Id. 
 
 222. Such a contract cannot be controlled by proving a custom in the vicinity 
 of the transaction, that founders shall not be held to warrant their manufacture, 
 unless by express contract ; or in case of apparent defects, and the absence of 
 any express agreement, that they shall have their castings returned in a reason- 
 able time, and the right to replace them by new ones. Id. 
 
 223. The rule of damages for not furnishing manufactured articles according to 
 contract, is the difference in value between those actually furnished and such as 
 should have been, unless they were to have been furnished for a particular use. Id, 
 
 224. Written lease may be modified by subsequent parol agreement on new 
 consideration, and evidence is admissible to show new contract, Flanders v. 
 Fay, N. S. vii. 697. 
 
 225. The rule that a verbal agreement entered into between the parties to a 
 simple contract in writing is not admissible to vary its terms, does not apply 
 where the oral agreement was made subsequent to the execution of the written 
 agreement, and was upon a new consideration. Id. 
 
 226. A contract to pay dollars made between citizens of any stote maintain- 
 ing its constitutional relations with the national government, is a contract to 
 pay lawful money of the United States, and cannot be modified or explained by 
 parol evidence. Thorington v. Smith, N. S. viii. 739, 
 
 227. A written contract for the manufacture of retorts cannot bo affected by 
 proof of a custom that, in the absence of an express agreement, founders shall 
 not be held to warrant their castings against latent defects ; and that, in case of 
 apparent defects, they shall be entitled to have castings returned to them within 
 a reasonable time, and to replace them with new ones. Whilmore v. South Boston 
 Iron Co., N. S. i. 177. 
 
 228. Where the party to whom the obligation is given understands the char- 
 acter in which the party giving it is acting, parol evidence may, it seems, be 
 given to show that the maker, or obligor, was acting in the matter as agent 
 merely. Auburn City Bank v. Leonard, N. S. iii. 255. 
 
 XVin. Pakoi Evidence to Affect written Contract. 
 
 229. Parol evidence to affect the language of a policy. Insurance Co. v. Lowry, 
 TS. S. iii. 651. 
 
 230. A policy containing a clause that goods held on commission must be 
 insured as such, is to be interpreted by its own terms, and evidence not admissible 
 to show that the insurers knew the kind of goods they were insuring. Id. 
 
 231. Written lease may be modified by subsequent parol agreement on new 
 
262 CONTEACT. 
 
 consideration, and evidence is admissible to show new contract. F'andersv. Fay, 
 N. S. vii. 697. 
 
 2.32. A written contract governs the right of the parties to it, atid cannot be 
 varied, add6d to or qualified ; with one exception, that in some cases the custom 
 of a trade may be annexed as incident to the contract ; that is, not where the 
 custom contradicts the contract, but where it is consistent with it. Arbon. v. Fus- 
 sell, N. S. ii. 99. 
 
 233. Admission of parol evidence to explain written. Bidwell v. North-Western 
 Ins. Co., N. S. ii. 59. 
 
 234. A warranty that a machine shall be capable with " a good team" of cut- 
 ting a certain amount of grain, contains a patent ambiguity, yet it may be ex- 
 plained by parol evidence. Ganson v. Madigan, N. S. iii. 508. 
 
 235. There is a class of cases in which it has been held that an instrument, 
 which is apparently the personal obligation of the one by whom it is signed, 
 may by parol be shown to be the obligation of another, for whom the person 
 signing was acting as agent. Auburn City Bank v. Leonard, N. S. iii. 255. 
 
 236. How far parol evidence is admissible to show verbal agreements of the 
 parties at the time the deed was executedj discussed. Bloomer v. MiUinger, N. 
 S. iii. 695. 
 
 237. In a subscription to erect a church, I. H. subscribed " fifty dollars and 
 the lot to build on." No lot was laid otf, nor were any steps taken to build 
 during his life. Bill to compel heir to convey an acre at a particular locality. 
 Held, that the writing was defective, and could not be cured by parol proof. 
 Church of the Advent v. Farrow et ux., 0. S. iii. 572. 
 
 238. Where a price is fixed by writing, but the thing not adequately described, 
 parol evidence may be admitted. Chadwick v. Commissioners, N. S. iv. 309. 
 
 239. Where A. accepted in writing, an order to pay a claim out of the proceeds 
 of a certain note in his hands, he cannot afterwards change his liability on the 
 ground that there was a parol agreement that he was to bo paid his indebtedness 
 first. Miller, Ex'r, v. Goldthwait, Adm'r, N. S. xii. 661. 
 
 240. But the word dollars if used in a contract between citizens of a foreign 
 state could be shown by parol evidence to mean dollars of a different kind from 
 United States dollars, and the same rule must apply to a contract between 
 citizens of the Confederate States. Thorington v. Smith, N. S. viii. 739. 
 
 241. In a preliminary conversation between B. and C. as to wool B. had for 
 sale, B. said that, besides his own clip of wool, he had bought the clips of some 
 of his neighbors (naming them) ; and that altogether the quantity was 230Q 
 stones, a hundred stones more or less. Shortly after this C. wrote to B. that 15. 
 desired him to offer "for your wool" 16s. per stone delivered, &c. B. replied 
 accepting the offer. In pursuance of this contract B. tendered 2505 stones, which 
 T>. rejected on the ground of excess of quantity. The preliminary conversation 
 was held to be admissible to show to what the contract referred ; and, by a ma- 
 jority of the court, that the written contract did not make it a condition that the 
 quantity should not exceed 2300 by more than 100 stones ; that it was a question 
 for the jury whether the excess was so unreasonable as to entitle the defendant to 
 reject the wool tendered. MacDonaldv. Longboltom, O. S. vii. 639. 
 
 242. Parol evidence to explain or vary written contract — when not admissible. 
 Potter V. Tollman, N. S. i. 376. 
 
 243. Parties who appear on the face of a contract to be the only parties bound can- 
 not introduce parol proof to show that they are not the parties bound, but that third 
 persons are in reality the contracting parties. Wilson v. Bailey, Or S. iii. 432. 
 
 244. It is admissible to show that the act of the party signing the contract is 
 also the act of his principals, so as to render the latter also liable. Id. 
 
 XIX. PERroRMANCE Op Contract, and herein op Specific Performance. 
 
 245. The plaintiffs agreed to make and erect, on premises under the control of 
 the defendants, certain machinery, and tha latter were to provide all necessary 
 brickwork, &c. Before the works were completed, the buildings in which the 
 work-was to be done were destroyed by fire. Held, that the plaintiffs were en- 
 titled to recover for the amount of work done. It was an implied term of the 
 contract, that the defepdants should provide the buildings in which the work was 
 to be done, and enable the plaintifis to perform their part. Applebu v Metiers 
 N. S. vi. 112. •' •' ' 
 
 246. Discounting of new note and payment of former one thereby extinguishes 
 old debt and creates a new one. Fisher v. Marvin, N. S. vi. 507. 
 
 247. The debt deemed to have been contracted when new note was given. Id. 
 
CONTKACT. 263 
 
 248. Suit thereon, to make stockholders of corporation liable, in time within 
 one year after new note became due. Fisher v. Marvin, N^ S. ri. 507. 
 
 249. Where a railroad company has issued a commutation ticket, by which the 
 purchaser is entitled to ride for less than the usual legal fare, and the ticket con- 
 tains a contract that the commuter shall show it to the conductor when requested, 
 the company is entitled to enforce such contract strictly, and the loss of the 
 ticket will deprive the commuter of his right to a free passage on the cars. 
 Riphy V. Railroad Co., N. S. v. 537. 
 
 250. Temporary defect in article contracted for, sufficient non-compliance. 
 Viall V. Hubbard, N. S. v. 250. 
 
 251. Change of inscription upon monument, substantial defect. Id. 
 
 !J52. Act of God, of the law, or of the other party, only legal excuses for 
 non-performance of contract. Niblo v. Brusse, N. S. v. 248. 
 
 253. Accidental fire, no legal excuse. Id. 
 
 254. What " act of God" is. Id. 
 
 255. When law will excuse a party from fulfilling a contract. Id. 
 
 256. For certain fixed quantity of goods, not complied with by tender of bills 
 of lading for larger quantity. Stevaison v. Burqin, N. S. v. 123. 
 
 257. Between first and second mortgagees. Livingstonv. Painter, N. S. Y. 121. 
 
 258. Specific performance thereof. Id. 
 
 259. When contract for sale of land within ten days is to be performed. Gold- 
 smith T. Guild, N. S. V. 506. 
 
 260. Time, as a general rule, the essence of a contract in equity for sale of 
 Und. Id. 
 
 261. Sufficient excuse for non-performance of. Devlin v. Railroad Co., N. S. 
 v. 315. 
 
 262. When equity will relieve parties failing to perform. Tibbs v. Morris, N. 
 S. T. 440. 
 
 263. Purchaser cannot rescind for fraud, after property disposed of by him, 
 by offering to restore its proceeds. McCrillis v. Carlton, N. S. v. 250. 
 
 264. His remedy in such case. Id. 
 
 265. Performance decreed, although the entire consideration not named in the 
 written contract. Park v. .Johnson, N. S. ii. 180. 
 
 266. Burden of proof is on the party alleging misrepresentation. Id. 
 
 267. Compensation where wife refuses to join in a release of dower and home- 
 stead. Id. 
 
 268. Action for. Stevenson v. Buxton, N. S. ii. 60. 
 
 269. On default of vendor at time fixed and ofl^er afterwards, vendee may re- 
 fuse without any reason assigned, and if he assigns a reason it is immaterial 
 whether it be a good one or not. Friess v. Rider, N. S. ii. 317. 
 
 270. Defendant in suit for value of goods delivered may set-off damages from 
 failure of plaiutiflF to furnish the full quantity agreed upon, and his damages are 
 to be measured by what his profit would have been, and interest thereon. Fishell 
 T. Winans, N. S. ii. 630. 
 
 271. No action lies on contract to pay for tuition if promissor is prevented by 
 illness from receiving it. Stewart v. Boring, N. S. ii. 768. 
 
 272. Where a person employed for a certain term at a fixed salary payable 
 monthly is wrongfully discharged before the end of the term, he may sue for 
 each month's salary as it becomes due; and the first judgment will not be a bar 
 to anotlier action for salary subsequently coming due. Huntington v. Ogdensburg 
 Railroad Co., N. S. vii. 143. 
 
 273. A. made an executory contract for the sale of goods to B. In an action by 
 the vendee against the vendor to recover damages for non-performance, A. estab- 
 lished by way of defence that'B. falsely and with fraudulent intent, and as an in- 
 ducement for A. to enter into the contract, represented that he had purchased 
 goods of like quality, at the same price, of one C, a person who was acquainted 
 with their value, and in whose judgment A. placed confidence. He also showed 
 that he sold the goods to B. at a stipulated price, relying upon the false statement. 
 Hdd, that the plaintiff could not recover. Smith v. Cou7itrtjman, N. S. iv. 102. 
 
 274. The vendor under such circumstances had a right to rely upon the 
 vendee's statements without making inquiry of C. as to their truth. Id. 
 
 275. The false statement was material to the contract. The rule, stated in 
 Parsons on Contracts, approved : "If the fraud be such that, had it not been 
 practised, the contract would not have been made, or the transaction completed, 
 then it is material to it." Id. 
 
264 CONTRACT. 
 
 276. It is immaterial in snch a case that the vendee agreed to pay the market 
 price on the day. of sale. If the contract was induced by fraud, the fraud is a 
 complete defence to an action brought to recover damages for a failure to fulfil 
 the executory contract. Smith, v. Countryman, N. S. iv. 102. 
 
 277. To build a house in a certain time, not excused by reason of a latent 
 defect in the soil compelling the taking down and rebuilding part of the house. 
 Dermott v. Jones, N. S. iv, 504. 
 
 278. Action on such contract — acceptance — damages. Id. 
 
 279. Title to reward offered for stolen property. Besse v. Dyer, N. S. iv. .504. 
 
 280. Compromises made in court and under its advice. Stanton v. The Carron 
 Co., N. S. iv. 141. 
 
 281. Bill for specific performance is for the discretion of the court. Gale t. 
 Archer, N. S. iv. 319. 
 
 282. A decree requiring the performance of a contract by one party, shouhl 
 also require performance by the other, if possible. Craft v. Bent, N. S. xi. ^29. 
 
 283. Where the subject-matter is destroyed before the time for performing the 
 agreement, the parties are discharged from the contract. Taylor v. Caldwell, N. 
 S. iii. 442. 
 
 284. One who has agreed to build a house upon the land of another, but he- 
 fore he has completed it it is destroyed by fire, is liable to an action for money 
 advanced on the contract, and damages for its breach. Tompkins v. Dudley et al., 
 N. S. iii. 56. 
 
 285. Action under contract to build — recoupment for failure to complete in 
 time. Wagner v. Cork/all, N. S. iii. 319. 
 
 286. An employee dismissed before his time expires is prim4 facie entitled to 
 recover for the whole time. King et al. v. Steiren, N. S. iii. 310. 
 
 287. Defendant may give evidence in mitigation of damages. Id. 
 
 288. Under a contract for wages to continue one jear, notwithstanding the 
 death of the employer, reasonable services are due to the latter 's executors. Bur- 
 delt V. Yale et a!., N. S. iii.. 249. 
 
 289. Compensation under special contract where the employee dies, is to be 
 measured by the contract. Clark v. Gilbert, N. S. iii. 699. 
 
 290. Specific performance decreed where party had failed in his part of con- 
 tract on account of mistake. Todd v. Taft, N. S. iii. 697. 
 
 291. In a contract to pay a sum in specified articles, vendee may pay in money 
 or the articles. White v. Tompkins, N. S. vi. 635. 
 
 292. Workmen cx6nerated from compliance with, by arrest and imprisonment 
 for crime. Hughes v. Wamsutta Mills, N, S. vi. 58. 
 
 293. Action for non-fulfilment of contract to finish machinery, &c., plaintiff 
 claimed special damage that he was prevented from fulfilling a contract to third 
 parties, whereby he lost the profits. Held, that the jury might assess damages 
 for such loss if plaintiff would have obtained such profits, but for the breach of 
 contract by default, and this, although the contract which would have produced 
 the profits, could not have been enforced at law. Waters v. Towers, 0. S. il. 60. 
 
 294. An overseer's contract for wages is not an entire contract ; and if he be 
 turned off for misconduct, he may recover for the time he conducted himself well. 
 Robinson v. Sanders, 0. S. i. 700. 
 
 295. Where a party is arrested in the performance of his portion of a contract 
 by an injunction issued at the instance of a third person, which stays the operation 
 of the work to be done, and prevents him from completing it aecordiug to con- 
 tract, that he can recover upon a quantum meruit count for the labor performed. 
 Whitfield V. Zellnor, O. S. i. 700. 
 
 296. Where a party covenants to make a deed to a certain quantity of land, 
 "more or less," these words mean, that when there is only an inconsiderable 
 deficiency as to the quantity of land, the vendor is not to submit to a deduc- 
 tion from the amouut of the purchase-money, if the tract of land contains less 
 than the amount, nor is the purchaser to pay more than the sura stipulated, if the 
 land exceeds the number of acres described. Phipps v. Tarpley, O. S. i. 700. 
 
 297. Peformance. — Acceptance of a work by defendant after failure of plaintiff 
 to recover on the contract for its price, will support an action, but such acceptance 
 is not proved by mere use. Corwin v. Wallace, N. S. iv. 446. 
 
 298. Non-fulfilment of one item in a contract, by mutual consent, does not 
 defeat the right of a party to require the substantial performance of the remainder 
 of it. P. S. ^ P. Railroad Co. >. Grand Trunk Railroad Co., N, S. xiv, 393. 
 
CONTRACT. 265 
 
 299. A contract may be enforced in conformity with its stipulation. Butler 
 V. Hono'dz, N. S. viii. 443. 
 
 300. Common carrier not liable for unforeseen accidents preventing him 
 Worth V. Edmonds, N. S. viii. 308. 
 
 XX. Op Rescindino Contract. 
 
 301. What amount of mental incapacity is required to authorize a court to 
 rescind. Aiman et at. v. Stout, N. S. ii. .503. 
 
 302. Rescission for misrepresentations. Rockafillow v. Baker, N. S. ii. 313. 
 .303. Rescission— tender must be continuous. Bennett t. Fail., 0. S. iv. 289. 
 
 304. Guaranty and original contract. JoUey v. Walker's Adm'rs, 0. S. iv 
 189. 
 
 305. Hiring of slaves — right of punishment delegated to hirer — punishment 
 must not be cruel or barbarous. Nelson v. Bondurant, O. S. iv. 190. 
 
 306. Mutual mistake of fact does not affect validity — concealment of immate- 
 rial fact, no fraud. Eastman v. Hobbs, 0. S. iv. 190. 
 
 307. As to right of vendor to rescind contract for purchase of goods when 
 vendee fails to pay for taking them awav. See McEachron v. Randies, N, S. i. 
 241. 
 
 308. After a simple contract is broken and damages accrued, it cannot be dis- 
 charged by parol, without satisfaction or some consideration. Cutler v. Bobbins, 
 N. S. xi. 55. 
 
 309. Party having right to rescind must elect to do so in reasonable time. 
 Willoughbgv. Moulton, N. S. vii. 251. 
 
 310. Plaintiff entitled to rescind may recover the money paid, in assumpsit. 
 Tender of money that would have been due on completion of the contract is not 
 essential, Crossgrove v. Himmelrich, N. S. vii. 312. 
 
 311. Contract for purchase of real estate^vhat will amount to defect of title 
 to justify rescinding of contract by purchaser. See Simmons v. Heseltine, 0. S. 
 vii. 512. 
 
 312. One who has entered into a contract under a bonft fide mistake of facts 
 ma* rescind, if third parties will not be prejudiced. Johnson v. Parker, N. S. 
 xiii. 776. 
 
 313. This is not the case when several creditors have compromised their 
 debtor's claims, relying on the mutual agreement of one another. Id. 
 
 314. In such case there is a conclusive presumption of law, that setting aside 
 the settlement as to one, would be injurious to the others. Id. 
 
 315. It is not necessary that a formal promise should have been made to en- 
 title creditors to the protection of this rule. Id. 
 
 316. A party may recover damages for refusal by defendant to allow him to 
 complete a contract for building a house, where he alleges willingness on his 
 part to go on. Black v. Woodrow S^ Richardson, N. S. xiii. 774. 
 
 317. If one party to a contract has been defrauded by the other, he may 
 rescind the contract or not at his pleasure. Willouyhbi/ v. Moulton, N. S. vii. 
 251. 
 
 318. But a party having right to rescind must elect to do so in reasonable 
 time. Id. 
 
 319. A contract to sell may be rescinded before acceptance, unless there is an 
 agreement on good consideration to the contrary. Stitt v. Huidekoper, N. S. xiii. 
 327. 
 
 320. Stoppage of goods in transitu does not rescind contract. Quimby v. Carr, 
 K S. iii. 697. 
 
 XXI. Conditional Conthacts. 
 
 321. Conditional agreement to purchase if the article found satisfactory on 
 trial, requires an actual trial of the article and in a reasonable time. McDonald 
 V. Pierson, N. S. ii. 441. 
 
 322. Where promise is made with condition to be void on certain contingency, 
 the burden -of proof is on the maker to show the avoidance. Thayer v. Connor, 
 N. S. ii. 444. 
 
 323. Effect of conditional signing where the condition is broken, discussed in 
 Note to Seely v. People, N. S. ii. 346. 
 
 324. Entire and divisible contracts considered. Note to Huntington v. Ogdens- 
 burg Railroad Co., N. S. vii. 147. 
 
 323. Where land is conveyed to a railroad on condition that It shall be occu- 
 
266 CONTRACT. 
 
 pied as part of company's depot-grounds, the erection of a warehouse thereon 
 for the accommodation of the public and for doing the business of the road is a 
 sufficient compliance therewith. Pittsburg, Ft. W. ^ C. Railway Co. v. Sose, 
 N. S. xiv. 120. 
 XXII. Measuke of Damage. 
 
 326. A contract with three firms to run logs, at a per diem allowance, the ex- 
 penses to be equalized and at the close of the work a final settlement to be made, 
 though for some purposes mutual, in the main, is one where each party is sever- 
 ally liable for failure to respond. Stewart v. Millikm, N. S. xiv. 251. 
 
 327. The contract contemplated an immediate settlement at the close of the 
 business, and unless specified objections were made within a reasonable time, it 
 ■would be unjust to permit a settlement to be attacked. Id. 
 
 328. Unless impeached for fraud or mistake a settlement so made must stand. 
 Id. 
 
 329. Where the plaintiff had purchased four-fifths of certain lands and failed 
 to purchase the other, because the defendant in violation of his contract pur- 
 chased, the rule of damages is what the fifth was worth more than the plaintiff 
 would have had to pay had he purchased it. Morrison v. Darling, N. S. xiv. 
 754. 
 
 330. Where a person covenants to pay a sum contingent on certain events, 
 which is to be fixed by arbitrators, if he prevents arbitration, he can recover no 
 more on a quantum vnlebat than a jury under instructions from the court may 
 find. Humaston v. Telegraph Co., N. S. xiv. 119. ' 
 
 331. The rnle of damages for not furnishing manufactured articles according 
 to contract, is the difference in value between those actually furnished and such 
 as should have been, unless they were to have been furnished for a particular use. 
 Whetmore v. South Boston Iron Co., N. S. i. 403. 
 
 332. Measure of damages — subject discussed. O. S. iii. 513. 
 XXIII. What CoNSTiTUTEa a Contract. 
 
 333. After decree for specific performance of contract for purchase of land at 
 suit by vendor's executor it is too late for vendor to allege want of notice of the 
 proceedings. Thompson v. McKinley, N. S. iv. 447. 
 
 334. A check, in order to avail the holder, must be presented, accepted, and 
 charged. National Bank v. Eliot Bank, O. S. v. 711. 
 
 335. Contract for transportation of passengers on the ocean is a maritime con- 
 tract. The Moses Taylor, N. S. vi. 630. 
 
 336. Memorandum made and signed by one party in his private account book 
 not a contract. Stannard v. Smith, N. S. vii. 831. 
 
 337. Charter-party, and bill of lading — representations in the same, not a 
 warranty. Merchant onlv liable to pay for the actual number of tons of freight. 
 Gray v. Gibbs, 0. S. v. 738. 
 
 338. Charters of incorporation, other than municipal, are contracts within the 
 protection of the Federal Constitution. Railroad Co. v. Bower, N. S. xiii. 174. 
 
 339. A judgment is a contract — is a specialty — but the term is not so used in 
 the code of civil procedure of Kansas. Burns v. Simpson, N. S. xii. 59. 
 
 340. Two papers each signed by one party may be submitted as evidence of a 
 written contract of sale. Rhoades v. Castrier, N. S. vi. 320. 
 
 341. Subscribing to stock of incorporated association, creates personal liability 
 to raise the proper proportion of the capital. Mining Co. v. Levy, N. S. vii. 312. 
 
 342. Requisites of valid custom to affect contracts. Slipperly v. Stewart, N. 
 S. vii. 639. 
 
 343. During n war, contracts between citizens orthe opposing belligerents are 
 completely suspended. Connecticut Ins. Co. v. Hal.!, N. S. vii. 606. 
 
 344. Advertisement for proposals for building works does not create any obli- 
 gation of contract. People v. Croton Aqu. Board, N. S. vii. 509. 
 
 XXIV. How fab Affected by STATntE of Limitations. 
 
 345. The statute attects the remedy only. Paine v. Drew, N. S. iii. 381. 
 
 346. Therefore, an action may be maintained in one state on a contract which 
 Would be barred in the state where it was made. Id. 
 
 XXV. CoNTKACTS Generally. 
 
 347. The specific contract law of the stale of California is valid and does 
 not conflict with the Act of Congress July 11th 1862. Carpenter y Atherton N 
 S. iv. 225. ' 
 
CONTEACT— CONTRIBUTION. 267 
 
 348. The power of a state to enforce payment in specie. Carpenter v. Ather- 
 ton, N. S. iv. 225. 
 
 349. Act of legislature authorizing consolidation of connecting railroads. 
 Effect on contracts. Clearwater v. iLredith, N. S. iii. 69.3. 
 
 3.50. A person may maintain an action on a letter written on Sunday promis- 
 ing to pay for services. Tackennan v. Hinkley, N. S. iv. 764. 
 
 351. A contract to pay a certain sum in gold and silver coin is in legal effect 
 a contract to pay a certain weight of silv.er or gold of a certain fineness to be as- 
 certained by count. Butler v. Horwllz, N. S. viii. 443. 
 
 352. When repeal of an act exempting swamp lands from taxation impairs a 
 contract by the state. McGee v. Alathis, N. S. vi. 437. 
 
 353. Entire and divisilile contracts considered. Note to Huntington v. Ogdens- 
 burg. ^c, Railroad Co., N. S. vii. 147. 
 
 354. AVhere parties residing at a distance from each other agree to commu- 
 nicate by telegraph in their business transactions ; the same rules apply in deter- 
 mining whether a contract has been made as in cases of communications by letter. 
 Trevor et al. v. iVood et al., N. S. vii. 215. 
 
 355. Therefore, an offer accepted by telegraph constitutes a contract, although 
 the party making the offer attempts to revoke it before his receipt of the accept- 
 ance. Id. 
 
 356. An acceptance by letter of an offer is sufficient to make a contract, not 
 by virtue of being sent through the public mail, but because it is an overt act 
 manifesting the intention of the acceptor, and thus making the aggregatio men- 
 tium which is the essence of a contract. Id. 
 
 357. An oral contract valid by the laws of the state where made, may be en- 
 forced in another state in which such contracts are required to be in writing. 
 Allen V. Schuchardt, N. S. i. 14. 
 
 358. Confederate notes legal and valid when made within bounds of confed- 
 eracy. MiUer V. Gould, N. S. viii. 310. 
 
 359. Ship-owner's liability on contract of affreightment where there is no 
 " note in writing" executed at the time, as required by the Act of Congress of 
 March 3d 1851. Watson v. Marks, O. S. ii. 157. 
 
 360. A usage to control and interpret contracts must be known, certain, uni- 
 form, reasonable, and not contrary to law. Mettler v. Scudder, 0. S. ii. 80. 
 
 CONTRACTOR. 
 
 1. Persons performing public labor gratuitously are not responsible for negli- 
 gence of employees. Cox v. Wise, N. S. iv. 316. 
 
 2. Where a person employs another under special contract and does not interfere 
 with mode of work, he is not responsible for negligence of employees. Painter 
 v. Citg of Pittsburg, N. S. iii. 350. 
 
 3. There is no privity to make a sub-contractor liable to principal. Bissel v. 
 Eoden, N. S. iii. 633. 
 
 4. A mere contractor on » public work is not liable to a third person for 
 damages occasioned by the non-performance of his contract. Fish v. Dodge, N. 
 S. ii.'507. 
 
 5. Nor is there any liability on part of the contracting board or of the state. 
 Id. 
 
 CONTRIBUTION. 
 
 1. The law of contribution — subject discussed. N. S. viii. 449. 
 
 2. Wife can hold her dower and homestead, on payment of contribution. Nor- 
 ris V. Morrison, N. S. v. 700. 
 
 3. Where a mortgagor sells portions of the land at different times, thai which 
 is left is held in equity primarily for the whole debt. Brown v. Simons, N. S. 
 
 iii. 154. . 
 
 4. Jurisdiction of the Federal courts, where necessary to adjust questions ot 
 contribution in cases of loss of goods in voyages on the great lakes. See Allen 
 V. Steamboat Fashion, O. S. vii. 436. 
 
 5. The doctrine of subrogation and equitable contribution discussed. Note to 
 Brown V. S-mons, N. S. iii. 165. 
 
 6. In a bill to redeem the right to contribution from a grantee cannot be settled 
 unless he is party. George v. Wood, N. S. iv. 765. 
 
 7. A creditor of a stock company requiring security, plaintiff and four others 
 gave a joint and several note, which they subsequently had to pay. lle'd, that 
 
268 CONTRIBUTION— CONVEYANCE. 
 
 the corporation was liable to each for what he had to pay ; that as between them- 
 selves each was liable for one-fifth of the amount ; and that this was not affected 
 by the fact that the makers held unequal interests in the corporation. Coburn v. 
 Wheeloch, N. S. iv. 12!). 
 
 8. No marshalling of assets between co-legatees, when legacy of one has been 
 taken by title paramount to that of testator. People v. Horton, N. S. vi. SOiJ. 
 
 9. When one of several specific legatees, paying whole of debt, not entitled to 
 contribution against others. Id. 
 
 10. A traveller passing over a bridge which was maintainable by two eounlies, 
 was injured by its breaking down. He recovered damages in an action for negli- 
 gence against one of the counties. Held, that county might recover contribution 
 from the other. Armstrong County v. Clarion County, N. S. x. 796. 
 
 11. Contribution is fixed on general principles of natural justice, and does 
 not spring from contract. Id. 
 
 CONTRIBUTORS OF LITERARY ARTICLES to magazines, &c., to submit their 
 work to the control of the editor. Mcdgaigne v. De Saint Priest, O. S. iii. 
 .■571. 
 
 CONVERSION. 
 
 1. A naked power of sale in executors works no conversion of the land into 
 personalty, and until sale the. title is in the heirs, and the husband of one of them 
 is entitled to curtesy. Romaine v. JBendrickson's Ex'rs, N. S. xiii. 328. 
 
 2. Such tenant by the curtesy and the son of the deceased daughter are proper 
 parties to a bill against executors, to set aside a sale on the ground of fraud. Id. • 
 
 3. One who receives goods into his possession and control knowing that they 
 were not lawfully in the possession of the person who brought them to him, and 
 afterwards allowed them to be taken away by the same person, is not thereby 
 guilty of conversion. Loring v. Mulcahy, N. S. i. 568. 
 
 4. Direction to sell land and invest money until time of distribution is equit- 
 able conversion into personalty. Johnson v. Bennett, N. S. iii. 123. 
 
 5. Damages in cases of insurance on realty, are realty, Wyman v. Wyman, 
 ,N. S. iii. 569. 
 
 6. Purchase by tenant in common of an outstanding title, enures to the benefit 
 of his co-tenants upon contribution made to repay the purchase-money. Eoih- 
 ■well V. Dewees, N. S. iii. 50. 
 
 7. Where tlie pledgee of dock warrants as security for a loan sold the property 
 in dock, it was held a conversion by the pledgee. Johnson v. Stear, N.- S. iii. 
 753. 
 
 8. Suit lies in New York by wife against husband for conversion of her sepa- 
 rate estate, Whitney v. Whitney, N. S. vii. 508. 
 
 9. Where such an estate is converted into money it belongs to the husband. 
 Id. 
 
 10. Sale of another's estate under belief of ownership is conversion. Morril 
 T. Moutton, N. S. vii. 639. 
 
 11. An order of sale of an infant's land does not operate as a conversion of 
 it into assets so as to prevent a judgment from operating as a lien. Shaffner's 
 Adm'rs v. Briggs, N. S. xii. 403. 
 
 12. The widow having converted the personalty, and invested the proceeds in 
 realty, it was held in equity it must be treated as if she had taken the title to 
 herself for life ; the title to the personalty being in the widow for life only. Wil- 
 liamson V. Hall, N. S. X. 466. 
 
 13. The measure of damages is the value at the time of trial. Musgrave v. 
 Benkendorf, N. S. vi. 433. 
 
 14. What is conversion of wife's property by husband. Atbee v. Cole, N. S. 
 vi. 716. ' 
 
 CONVEYANCE. 
 
 1. A trust in favor of the grantor cannot be inferred in a conveyance absolute 
 upon its face. Ballbeck v. Donaldson, 0. S. vi. 148, 
 
 2. The salary of a clerk is not assignable before it is earned, in whole or in 
 part. Fairgrieves v. Lehigh Navigation Co., O. S. v. 161. 
 
 3. Uses as an element in our law — subject disussed. 0. S. vi. 65, 
 
 CONVEYANCE VOLUNTARY. 
 
 How far void. Newman v. Ritshan, 0. S. i. 131. 
 
CO-OWNER— COPYKIGHT. 269 
 
 CO-OWNKR. 
 
 1 . Co-owners of ships and steamboats. Their liens for sums advanced in pay- 
 ment for the construction of the vessel. Pragoff v. Heslep, 0. S. i. 747. 
 
 2. If they unite in building the vessel for the purpose of conducting a joint 
 trade, in the carrying of merchandise, passengers, &c., to divide profits and 
 suffer losses as partners do, unless there is some controlling circumstance, each 
 part-owner has a lien on the ship, or steamboat, for such advances ; and will 
 have a preference over general creditors of the other part-owners, but not against 
 purchasers of the others' shares without notice, /d. 
 
 COPYRIGHT. See Author. 
 I. What mat be the subject op Copyright. 
 
 1. As to periodicals. See Sweet v. Benning, O. S. iii. 684. 
 
 2. The respective rights of an editor of, and contributors to an encyclopedia 
 and works of that character, discussed. See Note to ilalgaigne v. Priest, 0. S. 
 i. 45. 
 
 3. The term " dramatic composition " in the copyright-acts includes all man- 
 ner of compositions in which the story is represented by dialogue or action in- 
 ,«tead of narrative ; and a. scene or composition in which the author's ideas are 
 conveyed by action alone, is within the term. Daly v. Palmer, N. S. viii. 286. 
 
 4. Stage directions, and the order of representation of events in accordance 
 therewith, are the subject of copyright. Id. 
 
 5. A dramatic scene or incident in which the ideas are expressed by action 
 alone, or by action and dialogue combined, is within the act. Id. 
 
 6. Where two dramatic scenes are substantially alike, and the charge of 
 plagiarism is made in a bill by the author of one to restrain infringement of 
 copyright, and not denied by defendant's answer, the validity of the copyright i9 
 not impaired by showing that the incidents of which the scene was composed 
 were all known and in common use before the complainant's play was composed, 
 and that a story had been previously published in which the incidents had been 
 related in similar order. Id. 
 
 7. A bookseller's sale catalogue containing original descriptive annotations is 
 a proper subject of copyright. Hotlon v. Arthur, N. S. iii. 306. 
 
 8. The distinction taken by some between works which are publici juris and 
 those which are subject to copyright, has no foundation in fact ; if the established 
 doctrine of the cases be true, and the author's property in a published book con- 
 sists only in a right of copy. Slowe v. Thomas, 0. S. ii. 210. 
 
 9. A translation can in no correct sense be called a "copy" of a book. Id. 
 
 10. Whether an author who gives his work to the public by printing and pub- 
 lishing it in a newspaper, not protected by any copyright, can have such a right 
 in the same work by afterwards publishing it in a different form, as in a volume 
 or book. Miller v. McElroy, O. S. i. 198. 
 
 11. Whether the deposit of a title page in the clerk's office; when the work it 
 was intended for was not then printed nor written, nor the manuscript prepared 
 for printing and publication, although the notes or materials from which the work 
 or book was to be, and afterwards was composed, were then in the hands of the 
 author, will entitle him to the copyright of the work so afterwards prepared and 
 composed. Id, 
 
 12. If the right exists under the circumstances stated in the first and second 
 queries, then, whether one can be charged with an infringement of this right, if 
 he has, in fact, never seen or copied from the book so entered and secured, or in 
 any manner used it in his publication, but has reprinted the whole from a public 
 newspaper unprotected by copyright, in which he found it, and where the author 
 himself had published it. Id. 
 
 1 3. Whether the fact of it being stated in some of the newspapers publishing as 
 aforesaid, that the author had secured a copyright, can in any way help him. Id. 
 
 14. The translation into a foreign language of a French work, in France, is a 
 breach of the copyright. Lumley v. Bayard, O. S. i. 499. 
 
 15. Sale of engraved plate. A sale by the sheriff of the engraved plate of a 
 map, does not carry the copyright, which is not the subject of a levy on an exe- 
 cution. Stevens v. Cady, O. S. i. 375. 
 
 16. A claim for arranging an elastic bed for printing designs, is not a claim 
 for a design under Act of March 2d 1861, sect. 11, but a claim for a device. 
 Clark V. Bonsfield, N. S. ix. 774. 
 
 17. When an author has sold his book, the only property which he reserves to 
 
270 COPYRIGHT. 
 
 himself, or which the law pives him,, is the exclusive ripiht to multiply the copies 
 of that particular combination of characters which exhibits to the eyes of another 
 the ideas intended to be conreyed ; and this which the law terms an author's 
 " copy" or "copyright" embraces nothing more. Siowe v. Thomas, O. S. ii. 210. 
 
 18. There is no difference, as respects the character or quality of the right, 
 , between the right and property of an author at common law, under the statute of 8 
 
 Anne, u. 19, and under the Acts of Congress respecting copyrights, and de- 
 scriptions of an infringement which would be applicable in the one case are ap- 
 plicable in the other. Id. 
 
 19. A "copy" of a book must be a transcript of the language in which the 
 conceptions of the author are clothed, of something printed and embodied in a 
 tangible shape. Id. 
 
 20. A party, asserting her literary proprietorship of an unprinted comedy, 
 under an assignment to her by its author, complained of its theatrical representa- 
 tion by the defendants without her consent. It had been composed in England 
 for performance at a London theatre. Difficulties of adaptation preventing its 
 performance there, it was thrown back on the hands of the author. He, subse- 
 quently, not being a citizen or a resident of the United States, for a valuable 
 consideration, transferred his proprietorship of it for the United States to the 
 complainant, a resident of New York, where she was the proprietor and manager 
 of a theatre. She adopted measures for securing a copyright, and in so doing, 
 performed all such acts prescribed by statutes of the United States as were per- 
 
 • formable without a publication in print. The play, under her management, was 
 adapted to representation at her theatre, with the assistance of an actor of her 
 company, to whom the principal character was allotted ; and in the course of 
 this adaptation, received written additions, underwent curtailment, and was other- 
 wise altered. The additions were made or suggested by this actor. The play, 
 as composed in .England, or as thus altered, was never printed. As altered and 
 adapted, it was publicly represented at the complainant's theatre. Here, the 
 same actor, in performing the principal character, introduced, with " view to 
 stage effect, some unwritten additions, relying for the repetition of them upon his 
 memory alone. The representation at the complainant's theatre having been 
 successful, the defendants, proprietors and managers of a theatre at Philadelphia, 
 afterwards performed the play, against her willy at their theatre, imitating closely 
 the general and particular performance of it as it had been represented by her. 
 They had witnessed its performance at her theatre, but this, whatever assistance 
 it may have afforded them, was not the means of enabling them to represent it 
 themselves. They obtained the contents of the English manuscript from a 
 former copy, which had been unauthorizedly retained, or made by a player at the 
 London theatre, for which it had been composed. The additions, written and 
 unwritten, were, without the permission, of the complainant, communicated to 
 them by the same actor who had, under her management, introduced them at her 
 theatre. JCeene v. Wlieatleg Sj- Clark, 0. S. ix. 33. 
 
 21. As the author was a non-resident alien, the complainant, though herself a 
 resident of the United States, could not, as proprietor of the play, sustain her suit 
 under the statutes of the United States for the protecfion of authors aud their 
 assigns. Id. 
 
 22. But, independently of this legislation, the court having, through the citi- 
 zenship of the parties, a general equitable jurisdiction in the case, the suit was 
 sustained. Id. 
 
 23. The foreign author's assignment, if to be deemed a partial one, was, at 
 law, inoperative, except as a liceiise ; but having been for a valuable considera- 
 tion, was in equity, valid as an asignnient, for the United States, for such liter- 
 ary property as could exist in his composition. Id. 
 
 24. The play never having been published in print, the complainant, as it^ 
 literary proprietor, could have sustained her suit if she had not herself repre- 
 sented it theatrically before an indiscriminate audience. Id. 
 
 25. A publication, literary or dramatic, may be limited or general. It is 
 general whenever the communication affecting it is not restricted, both as to the 
 persons to whom, and the purpose for which it is made. When general it is a 
 dedication to the public for such unlimited uses, including all modes of publish- 
 ing and republishing, as it may be the means of directly or secondarily enablin" 
 any person to make. The complainant's prior performance of the plav at her 
 own theatre was a general publication. Therefore, if it had been the ineans of 
 
COPYRIGHT. 271 
 
 tlirectly or secondarily enabling the defendants to represent it through a retention 
 of its words in their own memory, or in that of others of her niidJence, her lit- 
 erary proprietorship could not have been so asserted as to enable her to maintain 
 her suit. Keene v. Wheatlet/ ^ Clark, 0. S. ix. 33. 
 
 26. But the literary proprietorship of an author and his assigns continues after 
 n {rencrnl publication, except so far as it may be the means of onablinfj others to 
 make ulterior publication, or otherwise to use the composition published. There- 
 fore, as the complainant's prior public performance of the play was not the 
 means through wliich the defendants were enabled to represent it, her suit was 
 maintainable on the foundation of literary property, notwithstanding such prior 
 performance. Id. 
 
 27. The written additions to the former manuscript were not independent lit- 
 erary productions, but accessions, whose proprietorship was incidental to that of 
 the principal composition. /J. 
 
 28. Had this been otherwise, this literary proprietorship would have been in 
 the complainant and not in the actor who conceived and suggested them when ho 
 was in her service, assisting her in adapting the drama to its intended first per- 
 formance. His relation to her, as his employer, precluded him from acquiring 
 under such circumstances an independent interest of his own in such products of 
 his mental exertion in her service. Id, 
 
 29. His unwritten additions were not capable of being the subjects of literary 
 proprietorship in anybody. But, independently of any question of proprietary 
 right, the complainant having the advantage of her priority in the performance 
 of this play, and being engaged in a professional competition in which the re- 
 tention of this advantage would have been profitable to her, his commuiiication 
 to her professional rivals and competitors of the written, as well as unwritten 
 additions, was a breach of confidence on his part, from which a court of equity 
 would not permit the defendants to derive an advantage to her prejudice or to 
 retain an advantage thus derived. Id. 
 
 30. The additions, written and unwritten, and the incidental curtailments 
 and alterations having been the means by which the play, as a whole, was 
 adapted successfully to dramatic representation, this equitable doctrine was, in- 
 dependently of any question of literary proprietorship, applicable to the whole 
 play as acted by the complainant, and imitated by the defendants, including the 
 former composition to which the additions were adapted so far as it was retained. 
 Id. 
 
 II. Who aee entitled to Copyright. 
 
 31. A foreigner, resident in this country, who has filed a copy of the title-page 
 of a play, but has not published, is entitled to the protection of the Copyright 
 Laws, but a subsequent publication in a foreign country would be an abandon- 
 ment of his rights under the Copyright Act of this country. Boucicault v. 
 Wood, N. S. vii. 539. 
 
 32. A resident, in the meaning of the Copyright Acts, is a person domiciled 
 in this country, not a mere sojourner. Id. 
 
 33. The case of Jlillar v. Taylor, 4 Burr. 2303, has finally settled the ques- 
 tion as to the nature of the property which an author has in his works ; and the 
 inference that a translation is not an infringement of copyright, is a logical re- 
 sult, and a necessary corollary, from the principles of law then decided. Stowe 
 T. Thomas, O. S. ii. 210. 
 
 34. Under the Act of 1856, an author, who has filed a copy of his title-page, 
 but not yet published his play, may have an action at law for damages for the 
 representation of his play without his consent. Boucicault v. Wood, N. S. vii. 
 539. 
 
 III. Infringement and Pikact of Copyright. 
 
 35. Copy of picture by photography is an infringement. Gambart v. Ball, N. 
 S. iii. 628. 
 
 36. Publication of drama containing scenes of a novel copied verbatim, is in- 
 fringement. Tinsley v. Lacy, N. S. iii. 628. 
 
 37. The representation of a part of a piay is an infringement of copyright. 
 Daly V. Palmer, N. S. viii. 286. 
 
 38. The sale, with a view to public representation, of a play which infringes 
 the copyright of another, makes the seller a participant in causing the play 
 
272 COPYRIGHT— CORONEK. 
 
 to bo publicly represented, and an injunction will be granted against th'e sale. 
 Daljj V. Palmer, N. S. viii. 286. 
 
 39'. The defendants, who were proprietors of a periodical professing to be an 
 analytical digest of equity, common law, and other cases, copied verbatim the 
 head or marginal notes of cases from reports, the copyright of which was in the 
 plaintiffs, without their consent. Seld, to be a piracy. Sweet v. Benning, O. S. 
 iii. 684. 
 
 40. Where an author is employed by the proprietors of a periodical work to 
 write for it articles, on certain terms as to the price, but without any mention of 
 the copyright, it is to be inferred the copyright was to belong to such proprietor. 
 Id. 
 
 41. In an action for infringement of copyright in a play, the copyright and 
 the fact of representation being established, the burden is on defendant to show 
 the author's consent to the representation. Mere representation is not permission 
 to perform it. Bounicault v. Wood, N. S. vii. 539. 
 
 42. If there has been no publication at all by the author of a play, he has a 
 right at common law to damages for the representation of his play from a man- 
 uscript obtained without his consent. Id. 
 
 43. The copying of a statuette by means of the dagtierreotype or other photo- 
 graphic apparatus, and the use of the stereoscope to give relief to the copies 
 thus made, to the injury of the owner of the original work of art, is an infringe- 
 ment of his copyright. Marchi v. Samson, O. S. iii. 570, 
 
 44. By Stat. 5 & 6 Vict., c. 45, sect. 18, when the proprietor of any peri- 
 odical work shall employ any person to compose any article thereof, and the 
 same shall have been composed on the terms that the copyright therein shall be- 
 long to such proprietor, the copyright shall be the property of such proprietor. 
 Meld, that these terms need not be expressed, but may be implied. Sweet v. 
 Benning, O. S. iii. 684. 
 
 45. Quere, is an abridgment an infringement of the copyright ? Subject dis- 
 cussed. 0. S. iii. 129. 
 
 46. A prose translation (having no qualities of a paraphrase) of a copyright 
 prose romance, which the author had himself caused to be translated in a way he 
 liked, and copyrighted, is not an infringement of the author's copyright of the 
 original. Stowe v. Thomas, 0. S. ii. 700. 
 
 47. In questions of infringement of copyright, the inquiry is not whether the 
 defendant has used the thoughts, conceptions, information or discoveries pro- 
 mulgated by the original, but whether his composition may be considered a 
 new work, requiring invention, learning and judgment, or only a mere tran- 
 script of the whole or parts of the original, with merely colorable variations. Id, 
 210. 
 
 48. The manager of a theatre cannot cause to be performed in France on 
 opera translated into a foreign language, without paying both the author of the 
 music and the words for the use of the copyright, under the law of 13th-19th 
 January 1791, and the decree of 8th of June 1806. Lumley v. Bar/ard, O. S. i. 
 499. 
 
 IV. Remedy. 
 
 49. If there has been no publication at all by the author of a play, he has a 
 right at common law to damages for the representation of his play from a manu- 
 script obtained without his consent. Boudcoult v. Wood, N. S. vii. 539. 
 
 50. Where there is a reasonable doubt as to the existence of a copyright, an 
 injunction will not be granted to stay its infringement. Miller v. McElroy, 0. 
 S. i. 198. 
 
 51. Injunction granted without proof of actual damage. Tinsley v. Lacy, N. 
 S. iii. 628.. 
 
 V. Internationa I. Copyright. 
 
 52. Copyright — international — subject discussed. 0. S. ii. 129. 
 
 COKONER. 
 
 1 . Medico-legal duties of — subject discussed. 0. S. vi. 385. 
 
 2. Not liable for words spoken by him to his jury. Thomas v. Churton, N. S. 
 iii. 628. 
 
 3. Testimony taken before coroner is voluntary, is not given under a threat, 
 
CORONER— CORPORATION. 273 
 
 &c., and may bo Riven in evidence against the witness on his trial for the crime. 
 Htndrickson v. People, O. S. ii. 531. 
 
 COUPOBATION. See Constitutional Law; Quo Waeeanto ; Railroad. 
 I. Of Granting and Amending the Charter of a Corporation, and herein 
 OP the Organization op the Corporation, and the Effect of an In- 
 formal Organization, and of what is Evidence of the Existence of 
 the Corporation. 
 
 1. The Maryland hospital has no power under its charter to maltc a contract 
 for the support of a lunatic, during lite, in consideration of a certain sum of 
 money. Hospital v. Foreman, N. S. viii. 75.t. 
 
 2. Money paid on such a, contract may be recovered back, less the cost of 
 keepinir the patient. Id, 
 
 3. Where an association attempted in good faith to organize as a corporation, 
 under the Act of 1867 of Ohio, its members, and others who have contracted 
 with it, will be estopped in a suit on the contract from disputing its corporate ex- 
 istence on account of a defect in its certificate. Hagerman v. Ohio Building Asso- 
 ciation, N. S. xiv. 643. 
 
 4. A corporation organized according to the laws of Ohio, and having its 
 office and place of business there, is a legal corporation of Otiio. State of Ohio 
 ex rel. Attorney-General v. Taylor, N. S. xiv. 754. 
 
 5. Of corporate franchises — subject discussed. N. S. v. 577. 
 
 6. Grants of new and extraordinary powers to a private corporation must be 
 construed strictly. Township of Greenwich v. Easlon Sf Amboy Railroad, N. S. 
 xiii. 330. 
 
 7. It has been said that the powers of a corporation are only such as the law 
 of its creation gives ; but this leads to another question : what powers does its 
 charter, or act of creation, fairly and properly construed, give. It is, in each 
 case, a question of construction. James v. Cincinnati Railroad Co., 0. S. vi. 
 718. 
 
 8. Powers conferred upon corporations are of two descriptions : some are gen- 
 eral, others special and limited. Some have reference to the mode in which 
 acts are to be done, and are merely directory, others are in the nature of a limi- 
 tation of power or a condition precedent. Third persons, acting in good faith, 
 are not usually to be affected by an excess or violation of the former, on the part 
 of the company ; but of the latter, they are, the act itself must be regarded as 
 illegal, and knowledge is presumed. Id. 
 
 H. In England the crown cannot grant a charter not open to the right of the 
 subject to have it declared forfeited. Archipelago Co. v. The Queen, 0. S. iii. 
 123. 
 
 10. The distinction between public and private corporations has reference to 
 their powers and the purposes of their creation. They are public when created 
 for public purposes only, connected with the administration of the government, 
 and when the interests and franchises are the exclusive property and domain of 
 the government, all other corporations are private. Yurniouth v. Trustees of 
 School Fund, O. S. i. 596. 
 
 11. Over public corporations the legislature has power not limited by the con- 
 stitution, to impose such modifications and restraints as the general interests may 
 require, without infringing private rights. Jd. 
 
 12. Grants and charters of private corporations, when accepted, assume the 
 character and elements of contracts, from which rights and franchises may flow, 
 
 . but over which, witliout the consent of the corporation, the legislature has no 
 more control than over private rights of property, unless on default of the corpo- 
 ration judicially established. Id. 
 
 13. When incorporated, the trustees of funds for the use of schools in a town 
 constitute a private corporation ; and that portion of an act of the legislature 
 providing for the division of the same town, and an incorporation of a part of 
 the territory into a separate town, which requires the trustees to divide the fund, 
 (and pay over a portion of it to other trustees, who were to receive and appro- 
 priate it to the use of schools in the town then incorporated,) is in violation of 
 private rights, and in conflict with the provision of the constitution which 
 prohibits the legislature from passing any law impairing the obligation of con- 
 tracts, and is inoperative and void. Yarmouth v. Trustees of School Fund, 0. S. i. 
 596. 
 
 18 
 
274 CORPOKATION. 
 
 14. Where a corporation procure from the legislature, by a supplemental act, 
 authority to make a fundamental change in their charter, as to extend their rail- 
 way to a different point, and thus really construct a new road, the rights of an 
 individual corporator, as such, who does not assent thereto, are not thereby af- 
 fected, although there be a majority rote of the corporation, accepting the act. 
 Stevens V. Rutland and Burlington Railroad Co., 0. S. i. 154. 
 
 15. Under the constitution of Texas the legislature may revoke charters of 
 private corporations by making compensation. Stale of Texas v. Railroad Co., 
 0. S. viii. 78. 
 
 16. A law requiring a majority of the officers to reside in the state is constitu- 
 tional. Id. 
 
 17. Definition of franchise. Id. 
 
 18. How far charter is a contract. See Xote to Id. 96. 
 
 19. The plaintiifti, a railroad company, were incorporated with a capital of 
 $500,000, with power "to call the first meeting of the stockholders whenever 
 $100,000 or more of the capital stock shall have been subscribed for, to choose direc- 
 tors and perfect the organization of said corporation," and " when so organized 
 to proceed to commence the construction of the railroad." N. H. ^ D. Railroad 
 Co. V. Chapman, N. S. xii. 80. 
 
 20. The sum of $216,700 was subscribed, including the subscriptions of the 
 defendants, and the first meeting of the stockholders was then held and directors 
 chosen. Subsequently an amendment to the plaintiffs' charter was passed by 
 the General Assembly, authorizing the city of New Haven to subscribe $200,000 
 to the capital stock, and to appoint two directors in the company, with one vote 
 for every four shares of stock held by the city. Pursuant to the power so 
 given, the city of New Haven subscribed $200,000 to the stock, and appointed 
 two directors who assumed and continued to discharge the duties of the office. 
 Id. 
 
 21. No other subscriptions were made, and the directors thereupon proceeded 
 to call in the capital stock, and to commence the construction of the railroad. 
 
 22. In an action to recover subscriptions to the stock, heU, (1.) That the'term 
 "organize," as used in the charter, embraced merely the choice by the stock- 
 holders of the necessary officers for the transaction of the business of the com- 
 pany, and that the plaintiffs, when so organized, $100,000 having been subscribed 
 to the stock, might legally begin the exercise of their corporate franchise. ' (2.) 
 That the amendment to the charter, and the action of the plaintifl's and the city 
 under it, did not impair the rights of the defendants as stockholders, or relieve 
 them from liability on their subscriptions. Id. 
 
 23. The acceptance of an Act of Assembly by a corporation may be inferred 
 from the exercise of corporate powers. Lyons v. 0. A. and M. Railroad Co., 
 N. S. x. 125. F P jT 
 
 24. By accepting the privileges conferred by a charter, the grantees will he 
 required to perform the conditions imposed. Id. 
 
 25. May be strictly private, although its object when accomplished may be a 
 public benefit. Howard v. St. Clair Orainnge, Co., N. S. ix. 712. 
 
 26. How far one corporation may become the successor of another still exist- 
 ing, discussed. Note to New Market v. Smart, N. S. iv. 402. 
 
 27. An Act of Assembly authorizing the issue of preferred stock did not work 
 a change in the charter until accepted by the stockholders, but when so accepted 
 the directors are authorized to issue the preferred stock. Curry v. Scott el al., 
 N. S. vii. 166. • ■ . 
 
 28. The legislature may confer enlarged powers upon the managers of a cor- 
 poration, with the assent of shareholdei-s ; and no one stockholder, by refusing 
 his assent, can hinder the exercise of the enlarged powers. Id. 
 
 29. Prima, facie evidence of its existence. Indorsement of notes by — evidence 
 in action by indorsee. Topping v. Bu-Iford, N. S. ii. 181. 
 
 30. An assignment made by president and secretary, with the seal of the 
 corporation attached, but without specific authority from the company, is not valid. 
 Id. 
 
 31. Where the corporators met outside the limits of the state granting the char- 
 ter, and elected a board of directors, and such board made a call for payment 
 upon the subscription to the stock of the corporation, a subscriber to the stock 
 
CORPORATION. 273 
 
 cannot, when ?ued for the callthus made, object to the ' legality of such- election. 
 Ohio 4r Mississippi Railroad Co. v. McPherson, N. S. iv. 562. 
 
 32. A clause in a legislative charter of incorporation that the legislature may 
 at anytime alter, modify, or repeal the same, does not give the legislature ^ower 
 to change the purposes of the corporation. The alteration must be of something 
 contained in the charter, or some franchise conferred by it. Zahriskie y.-Eait 
 
 . road Co., N. S. vi. 420. 
 
 33. Such clause is a reservation to the state for the benefit of the public, and 
 to be exercised by the state only. Id, 
 
 34. Therefore, such clause does not enable the legislature, even with the assent 
 of a majority of the stockholders, to change the purposes of the corp6r'alii6n if 
 opposed by any stockholder. Id. . i 
 
 35. A subscription to stock of $10,000, upon condition that good and respon- 
 sible persons subscribe §50,000 within one year to the corporation, means that 
 the $10,000 is to be included in the §50,000. Mont. &■ W. Railroad Co. v.Lana- 
 don, N. S. xii. 784. j , ^ 
 
 36. A legislative grant to a corporation sanctions only such implied po^fers as 
 aYe necessarily incident to those expressly bestowed. Turnpike Road v; Union 
 Railroad Co., N. S.x\. hSO. i ,' 
 
 37. An act amending the charter of the company, by which it was authorized 
 to construct and maintain a branch railroad from some suitable point on its main 
 line to a point named in said amendatory act, did not so change the purposes of 
 the incorporation as to release previous subscribers to the stock from payment of 
 their subscriptions. P. ^ R. I. Railroad Co. v. Preston, N. S. xii. 242. 
 
 38. Extent of the rule estopping one contracting with a corporation from de- 
 nying its corporate existence. VUlliatiis v. Association, N. S. vi. 715. ■' 
 
 39. When rule does not apply to a suit upon a stock subscriptihit. Id. 
 
 40. Charter of an association incorporated by the Supreme Court. Societt/ v.« 
 Commonwealth, N. S. vi. 633: 
 
 tr: Or THE Acts, Powers and LubiLities of Corporations, and HEREiif op 
 THEIR Power op Expulsion. ' 
 
 41. Has ncuconcern in nor control over the business of its members hot in- 
 Tested in its own funds. Mason v. Frmle et al., N. S. xiii. 454. ' 
 
 42. The legislature could not compel a society to be incorporated withotlt its' 
 assent. Id. ' 
 
 43. Only unanimous consent can bind any member of an unincorporated com-, 
 pany. Id. 
 
 44. Even absolute identity in the membership of a society and of a corpora- 
 tion would not merge the society in the corporation. Id. ' 
 
 45. A corporation chartered to carry on a specified business in a city, is not ex- 
 empt from liability to municipal regulations. Frankford Passenger Railway v. 
 Philadelphia^ N. S. viii. 631. • 
 
 46. A corporation chartered by one state, and accepting a charter from an- 
 other, does not throw off its original Obligation, nor sheltei- itself froni any 
 violation of duty to the first state. Commonwealth of Penna. v. Pittsburg and 
 Connellsville Railroad, N. S. viii. 631. 
 
 47; The judgment of another state decreeing the dissolution of a corporation, 
 will not prevent an action in this state begun prior to such dissolution frompro- 
 ceeding to judgment. Hunt v. Columbian Ins. Co., IS. S. viii. 183. 
 
 4S. A bridge corporation, which demands and receiyes tolls of travellers, is 
 bound to keep its bridge and approaches in safe condition for use, and cannot 
 excuse itself by impeaching its own title to maintain the same. Id. 
 
 49. An insurance company will bebound by the letter of ilis secretary, stating 
 that a policy is cancelled. Columbia Ins. Co. v. Masonheimer, N. S. xiv. 522. 
 
 50. The secretary is the proper organ between the assured and the company, 
 and his acts within the scope of his authority are binding on the company. Id. 
 
 51. If an incorporated company, acting by its agent, induces a person to enter 
 into a contract for the benefit of the company, that company can no more repu- 
 diate the fraudulent agent than an individual could repudiate him, and the com- 
 pany are bound by the misrepresentations of their agent. But the principle 
 cannot be carried so far that an action can be brought against the company on 
 the ground of deceit, because the directors have done an act which might render 
 them liable to such an action (per Lord Ckanwobth). New Brunswick, Sj-c, 
 Railway Co. v. Conybeare, N. S. i. 373. 
 
276 CORPORATION. 
 
 52. The indorser of a negotiable note, diseountcrl by n bank and by it trnns- 
 ferred to 8s.si{rnees before maturity, for full value, has no right, when payment 
 is demanded by the holders, to pay the note in the depreciated paper of the 
 bank after it has failed. Houston v. Rogers et al., N. S. i. 627. 
 
 53. The Act (ch. 654 of 1853) allowing corporations which have not received 
 net annual profits equal to five per cent, upon their capital, to commute for taxes, 
 is applicable only to corporations which have been in existence for a full year 
 before the assessment is made. Park Bank v. Wood, N. S. i. 503. 
 
 54. The cashier of a bank has no power to make a contract for the bank in 
 his own name, unless the corporation has authorized him to dp so on its behalf, 
 and with the intention that it should be bound. Bank of the State of New York 
 V. The Farmers' Branch of the State Bank of Ohio, N. S. i. 636. 
 
 55. In New York, cannot interpose defence of usury, and as to corporations 
 taking a greater amount of interest than the law allows. See Bank v. Smith, O. 
 S. vii. 667. 
 
 56. When acting ultra vires. Forrest v. 3i. S. §■ L. Railroad Co., N. S. i. 
 176. 
 
 57. A corporation can make no valid contract except in the course of its 
 business and within the scope of its charter, and any departure from that business 
 is an excess of authoritv in its officers. Pearne v. M. ^ I. Bailroad Co. and the 
 P. Sr 1. Bailroad Co., 6. S. vii. 409. 
 
 58. Two railroad corporations, before the date of the rotes on which this action 
 was brought, were consolidated by special agreement, but without authority of 
 law, and acted under a common board of management, and thus carried on the 
 business of both roads, and while so acting purchased a steamboat, for which the 
 notes were given. They afterwards dissolved the joint business relations, and 
 each road conducted its own affairs ; while united the notes sued on were given. 
 Beld, first, that persons dealing with the defendants must take notice of the limi- 
 tations imposed upon their authority by the act of incorporation, and second, that 
 these notes not having been given by authority of law, no recovery could be re- 
 covered on them. Id. 
 
 59. The legislative pledges of the public faith, and of the public works and 
 their income, as security for the money borrowed to construct tlie works, is not a 
 contract that can be enforced by the judiciary of the state. S. if E. Railroad v. 
 Cooper, 0. S. vii. 158. 
 
 60. Authority to subscribe for stock " as fully as any individual," authorizes 
 issue of bonds in payment. Seybert v. Pittsburg, N. S. iii. 629. 
 
 61. If a railroad has been found a nuisance, plaintiff may have injunction, 
 though not damaged. People v. Railroad Co., N. S. v. 571. 
 
 62. A legacy may be made of property in Lousiana to a corporation existing 
 in and created by the laws of another state. McDonough v. Murdoch, 0. S. ii. 
 400. 
 
 63. Manufacturing corporation cannot form partnership with an individual. 
 Whittenion v. Mills, N. S. iii. 184. 
 
 64. Power of railroad company to mortgage its franchise. Note to Morrell v. 
 Notjes, N. S. iii. 30. 
 
 65. Whether a corporation is a citizen within the meaning of the Judiciary 
 Act, discussed. Note to Barney v. Globe Rank, N. S. ii. 230. 
 
 66. A corporation is a "citizen" within the meaning of both these sections. 
 Barney v. Globe Bank, N. S. ii. 221. 
 
 67. Corporations locating railroads in Maine have no authority to take any 
 meeting-house, dwelling-house, or public or private burying-ground, without the 
 consent of the owners thereof. Wells v. 5. ^ K. Railroad Co., N. S. ii. 658. 
 
 68. The negotiability of such coupons is a question of law, to be determined 
 from the papers themselves, and proof of custom, as to the negotiability of them, 
 is admissible. Jackson v. C. Sf Y. Railroad Co., N. S. ii. 585. 
 
 69. A corporation existing under the laws of two states is presumed to know 
 the laws of both, and so far will be treated as a domestic corporation in each. 
 Pierce v. C. ^ N. W. Railroad Co., N. S. xiv. 249. 
 
 70. Inquiring into the power of a corporation to make contracts. Weckler ». 
 First National Bank, N. S. xiv. 609. 
 
 71. The word "person," in the Act of Ohio of 1873, concerning false pre- 
 tence, includes artificial as well as natural persons. Norris v. State N S xiv 
 644. I ■ ■ • 
 
COKPORATION. 277 
 
 72. Foreign corporations cannot take advantage of the Statute of Limitations 
 of New York. Tioga Railroad v. B. 4r 0. Railroad, N. S. xiv. 257. 
 
 73. Loan of corporation payable at a fixed time and place, ceases to bear in- 
 terest at that time whether payment is demanded then or not. Emlen v. Lehigh 
 Co., N. S. iv. 253. 
 
 7+. Legal existence lost by non-user of functions. Strickland v. Prichard, N. 
 S. V. 504. 
 
 75. Semh'e, that bill on part of Commonwealth would lie to compel them to 
 observe their charter regulations. Buck Mountain Co. v. Lehigh Co., N. S. v. 
 443. 
 
 76. Has no constitutional guarantee to trial by jury. Borough of Dunmore's 
 Appeal, N. S. vi. 637. 
 
 77. Where title to land upon which railroad has been located passes to com- 
 pany, before payment of damages. Knapp v. Mc.Auley, N. S. vi. 573. 
 
 78. The principles which govern a common-law partnership are in general ap- 
 plicable to a joint-stock company, whether incorporated or not. Ketcimm v. 
 BarJc of Commerce of New York, O. S. iii. 145. 
 
 79. Corporations may be estopped as to matters within the scope of their 
 powers without a formal assent on their records. Knceland v. Gilman, N. S. ix. 
 263. 
 
 80. Ordinance prohibiting the running of swine valid. Commonwealth v. Cus- 
 tis, N S. iv. 509. 
 
 81. It is not ultra vires for a canal company having the right to draw water 
 from a river, to agree to discharge its waste water at a certain point. Armstrong 
 V. Penna. Railroad Co., N, S. xiv. 700. 
 
 82. An act of the state in revoking such a concession as exempting the charter 
 of a corporation from taxation perpetually, is not unconstitutional as impairing 
 the obligation of a contract. Rowse v. Washington Universiti/, N. S. vii. 390. 
 
 83. Where A. takes lease in trust for corporation, to be afterwards formed, 
 the corporation is liable for the rent. Van Schick v. Railroad Co., N. S. vii. 574. 
 
 84. In the exercise of a power to borrow money, a municipal corporation will 
 be treated as an ordinary trading corporation. De Voss v. Citi/ of Richmond, N. 
 S. vii. 589. 
 
 85. Eailway management and responsibility — subject discussed. N. S. vii. 
 577. 
 
 86. A local board of directors, established by a foreign corporation in New 
 York, is still a mere agency. Robinson v. Life Assurance Co., N. S. viii. 166. 
 
 87.' With reference to their powers to take and hold real estate corporations 
 may be classified as follows : — 
 
 (1.) Those whose charter forbids them to hold. 
 
 (2.) Those whose charter is silent, may hold if their object cannot otherwise 
 be accomplished. 
 
 (3.) Those whose charter authorizes them to hold for some purposes. 
 
 (4. ) Those whose charter confers upon them general powers to acquire and 
 hold it. Hayward v. Davidson, N. S. xiii. 254. 
 
 88. Counties are quasi corporations and fall within the third class above given. 
 Id. 
 
 89. Insolvency does not extinguish the legal existence of a corporation. Par- 
 sons V. Eureka Powder Works, N. S. viii. 439. 
 
 90. An act of the legislature of California making each stockholder of a cor- 
 poration liable for his share of all its debts contracted while he is a stockholder, 
 is sufficient to answer the requirements of the constitution. Larabee v. Baldwin, 
 N. S. viii. 503. 
 
 91. Has no legal existence out of the boundaries of the sovereignty wliich 
 created it, and unlike natural persons cannot change its domicil. B. If 0. Rail- 
 road Co. V. Glenn, N. S. viii. 247. 
 
 92. A deed, mnde by a corporation created by the laws of Virginia, must be 
 determined by the laws of Virginia. Id. 
 
 93. Corporations are held to be subject to the same presumptions and implica- 
 tions from their corporate acts, or the acts of their agents, without either vote, 
 deed or writing, as in the case of natural persons. Currier v. Continental Lfe 
 Ins. Co., N. S. XIV. 169. , . u 
 
 94. A corporation may waive any condition inserted in its regulations or by- 
 
278 QGrEPORA'TIQN} 
 
 i* lawsforthe benEfit of the, company j and -the acts of such comp!iny,-oir of its 
 agents, we ep[mpetei|t evidence of such- waiver. Currier v. Continental Ltfe^lns. 
 .-; ,G,[;,-?I. S. xiy. 169.;;, ,, ;1, ,„ ,, , ' 
 
 , 96-.1 An .agree^nent, by a cprporsitionjto pay annual dividends to preterrca 
 stockholders, Avithout reference to its ability to pay them from earnings, (si op- 
 posed to public policy and.void. Lochhart V. VcmAlstyne, IS. S. xiv. 180. 
 
 96. But a contract will not be so construed as to subject it to this prinoiple 
 where any other construction i&reasonable. Id.. 
 
 .iS?;.,, Where the manager of one corporation contracts with anothcr.corporation 
 in which the same perstjn was the real party benefited, hM, that such contract 
 could not be sustained. ■ Goal Co. v. Sherman, O. S. viii. 333. ; ^ 
 
 98. The trustees of a religious, literary, or other benevolent association, irre- 
 . spective of any special power conferred by their charters, cannot purchase and 
 
 hold real estate under trusts of their own creation which shall protect their pro- 
 perty fi;oni the reach of their creditors. Magie v. German £vcini/elieal Dutch 
 Church of Neimrh, N. S. i. 698. ,' , , , 
 
 99. Authority of a majority of stockholders to vary their business, Kedn v. 
 
 ■ ■ ,Jf>hnmn, 0. S. y. 58. '.'■■,.' 
 
 100. Q««re, vwhether a supplemental law conferring the right is unconstitu- 
 tional. Id. 60. • , ; 
 
 101. Have only such powers as the act creating them confers. Straus y . Insu- 
 rance Co., 0. S. iv. 629. , ; 
 
 102. ,Has no power to purchase nqte of one insured in the company, and en- 
 • titled to indemplty- for the purpose of setting off such note. /rf. , , .,, 
 
 103. Setoff only allowable for such claims as absolutely belonged to the.com- 
 •;• pany at the time of the commencement of the suit. Id. i . 
 
 , 104. Obligation of parol contracts of a trading corporation. fiee..Re«t/!r v. 
 
 Electric. Telegraph Co., O. S. v. 566. , : 
 
 105. A deed of land by the corporation tO| two of its directors is void as^ against 
 
 creditors oir the corporation. Ckvdgmdy. La Crosse and Milwaukee Railroad Co. 
 
 h, et al., 6. §. vii. 536. ', , , ;' ' 
 
 . 106. A lease of a railroad and rolling stock, with .the power iri the lessee to 
 
 run the road and to purchase additional rolling stock at his discretion, and to ex- 
 
 . , tend the road out of the proceeds or revenue, the lease being for an indefinite 
 
 term of time, is void as against creditors of an insolvent company, for hindering 
 
 or delaying, them in the collection of their debts. Id. ' , . 
 
 107.,;Neitlier the board of directors nor the whole body of the corporation had 
 
 ; >. . power ,to>,create stock beyond the nupiher of shares limited by the charter, and if 
 
 the purchaser had paid i'ull value to the transfer agent for certificates of stock 
 
 issued beyond the number limited by the charter, the certificate^ would; 1)6 void. 
 
 , '. ..flajjt y. Railroad Co., O. S. iv. Tlj.-, m i i; / 
 
 108. The plaintiffs made a loaii whereby they received from the borrower cer- 
 taii\ vbpnds and mortgages in security; for the loan at, an iptei^est of seven per 
 
 -cent., and issued their certificates of deposit, bearing 4J per cent, interest, which 
 they gave to the borrower as the produce qf the loan. He'd, that the transaction 
 
 .- was illegal; as the company under its charter had no right to issue such paper, 
 to loan or put in circulation as money. New York life Ins, and Trust Co. v. 
 
 .-' -: Qieiier:, 0. S.i. 179. • ■ 
 
 109. Where by the terms of its charter a corporation is prohibited from loaning 
 any part of the funds deposited to a director, such loan if made cannot be 
 recovered, and any security taken for it is void, nor can the provision of the 
 charter be evaded by borrowing in the name of a stianger, where the director is 
 really and is known to be the person borrowing the money, But this doctrine 
 
 I /doSsnot extend to any other corporation borrowing, .whereof, a director chances 
 to be a stockholder. Albert v. Citi) of Baltimqre, O. S. i. 282. 
 
 110. A society which has claimed and exercised the rights and powers of a 
 ' corporation ffpi; twenty years, is a corporation de facto, and as such capable of 
 
 taking a bequest, though the proof of its incorporation be technically defective. 
 Chittenden \. Chittenden, O. S. i.53». , i 
 
 111. A devise to aii uninporporated association is void at law, and an incorpora- 
 tion after the testator's death wilj not validate it. Id. 
 
 112. It is a settled principle in equity, that a majority of a joint-stock associ- 
 ation cannot use the joint property, except within the scope of tlieir business, 
 
CORPOEATION. 279 
 
 ■without being liable to be restrained by injunction. Stevens t. Rutland ^ Bur- 
 lington Railroad Co., 0. S. i. 154. 
 
 113'. Is a corpoi-ation capable of malice? — subject discussed, 0. S. viii. 701. 
 And see Holt v. Parsons, O. S. viii. 764. 
 
 114. A foreign corporation, having no charter from the state of Ohio, cannot, 
 by a transfer of a portion of a railroad already constructed in the state by legal 
 authority, acquire a right to use and operate such railroad within that state. 
 0. ^ M. Railroad Co. v. 7. ^ C. Railroad Co., N. S. v. 733. 
 
 115. The plaintiffs, being authorized to construct and operate a railroad from 
 Cincinnati to Vincennes, and the defendants, being authorized to construct and 
 operate a railroad from Indianapolis to Lawrenceburg, of a different gauge, en- 
 tered into a contract whereby the defendants, in consideration of being allowed 
 to lay a third rail on the road of the plaintiffs from tawrenceburg to Cincinnati, 
 and of the agreement of the plaintiffs to furnish motive power for hauling the 
 cars of the defendants on that part of the road, agreed, among other things, to 
 lend to the plaintiffs $30,000, for the purpose of erecting a depot for the plain- 
 tiffs in Cincinnati ; to erect a depot at a cost of $15,000, on lands of the plaintiffs 
 in Cincinnati, to become the property of the plaintiffs at the expiration of the 
 contract ; to form no connections nt or beyond Lawrenceburg prejudicial to the 
 plaintiffs ; and to give the plaintiffs exclusive control of the employees of the 
 defendants wliile on the road of the plaintiffs. Held, on the construction of the 
 charters of the plaintiffs and defe'ndants, that such contract was beyond the com- 
 petency of the contracting parties and was void. Id. 
 
 116. The contract also provided that the defendants should have the use of a 
 depot and certain grounds in Cincinnati, for unloading goods and lumber, for 
 thirty vears. Held, that this created an easement in the land, and was, in con- 
 nection with the laying and keeping up the third rail, in substance a lease, which 
 the plaintiffs had no authority to make, and that it being for more tlian three 
 vears, was also invalid under the Statute of Frauds, for the want of legal 
 acknowledgment. Held, also, that the defendants having as a foreign corpora- 
 tion no right to accept a lease of a railroad in Ohio, the plaintiffs could not have 
 liad a specific performance of the agreement, the remedies of the parties not 
 being mutual. Id. 
 
 117. In regard to those acts of a corporation which require care, diligence, 
 and judgment, and which it performs through the instrumentality of general 
 superintending agents, the corporation itself is to be regarded as always present 
 supervising the action of its agents. Railroad Co. v. Collins, N. S. v. 265. 
 
 118. Amotion and disfranchisement of members of private corporations, 
 distinguished. Evans v. Philadelphia Club, N. S. v. 443. 
 
 119. Power to make by-laws. Id. 
 
 120. Fac-simile of seal of — printed upon blank forms, not a seal at common 
 law. Bates v. Railroad Co., N. S. v. 506. 
 
 121 . Has capacity at common law to take land in fee. Page v. Heineherg, N. 
 S. vii. 697. 
 
 122. Statutes of mortmain not adopted in Vermont. Id. 
 
 123. Railroad company purchased lands in fee and then abandoned for rail- 
 road purposes, the land did not revert. Id. . . r 
 
 124. A provision in the charter requiring a corporation to take securities for 
 its stock, does not prohibit it from selling stock on other terms. Upton v. Hans- 
 brouqh, N. S. xii. 462. , . . • » 
 
 125. A lease by one company to another, the necessary effect of which is to 
 suspend the business of the lessor for more than one year, is invalid against the 
 stockholders not consenting. Copeland v. Citizens' Gas-hght Co., N. S. xi. 194. 
 
 126 Where the constitution makes "slander against the society, a ground 
 for expulsion, it will be presumed that the common-law offence of slander is in- 
 tended. People V. Aid Society, N. S. xi. 460. . v .. .v 
 
 127. A coi-poration has power to mortgage its franchises with its other pro- 
 perty, to secure its liabilities. Morrill et alv. Nqi/es,'S. S.iii. IS. 
 
 128. The directors of a company having directed a claim to be transferred to 
 certain persons by the " proper officers," it was presumed that such officers were 
 the president and secretarv. Carroll v. Cvne, N. S. iii. 319. ,,.,,, ,y. 
 
 129. An instrument to be the deed of a corporation must be sealed witn tne 
 corporation seal and by the proper officer. Burden of proof as to the sealing. 
 Koehlcr v. Black River Co., N. S. iii. 55. 
 
280 CORPORATION. 
 
 130. Not liable on a quantum meruit for officer's serrices. KUpafrich t. 
 Bridye Co., N. S. v. 124. 
 
 131. Appointment of an agent by directors to execnte deed, is not a corporate 
 act. Arms v. Cananl, N. S. v. 124. 
 
 132. Where a person has a presumptive title to admission to corporate fran- 
 chises, the right of immediate expulsion should be clear, to justify his rejection. 
 People V. Medical Society, N. S. iv. 575. 
 
 133. Surety of the treasurer of a corporation "during his continuance in 
 office," &c., is not liable for default after omission to re-elect the treasurer, 
 though he continues to act as such ; but surety is not discharged by a vote of 
 the corporation postponing the time of election. Lexington, Sj-c, Railroad Co. 
 V. Elwdl, N. S. iv. 309. 
 
 134. Corporation need not accept treasurer's bond by a formal vote ; nor are 
 they estopped from an action on it by accepting the report of auditors approving 
 his accounts. Id. 
 
 135. Indorsement of treasurer on notes signed by himself is sufficient to make 
 surety liable. Id. 
 
 1 36. Is liable for services rendered after the chartering and before the organiza- 
 tion, if it has taken the benefit of such services. Low v. Railroad Co., N. S. 
 iv. 438. 
 
 137. Action will lie for compensation. Id. 
 
 138. Evidence in such action. Id. 
 
 139. Books not admissible as evidence in matters of private nature, in sup- 
 port of its claims. Wheeler v. Walker, N. S. iv. 505. 
 
 140. Corporation having power to borrow money on its own notes may do so 
 by pledge of its assets. Clark v. Titcomb, N. S. iv. 124. 
 
 141. Where it is the custom of a corporation to transfer its notes by mere in- 
 dorsement of its president, a transfer authorized by the directors is well made by 
 such indorsement. Id. 
 
 142. And where certain of the stockholders within the jurisdiction are insol- 
 vent, the plaintiff may have his decree against such as are solvent for his whole 
 debt, each paying such proportion of the whole debt as his stock bears to the 
 whole amount of stock owned by the solvent stockholders, over whom the court 
 has acquired jurisdiction. Jd. 
 
 143. It is settled law that the business for which a corporation was formed 
 cannot be changed against the will of any stockholder, however large the ma- 
 jority may be in its favor. Zabriskie v. Railroad Co., N. S. vi. 420. 
 
 144. Whether a gas company is a public corporation. Commonwealth v Gas- 
 light Co., N. S. vi. 384. 
 
 145. Gas-pipes are " machinery" of gas company, under Mass. Stat. 1864, c. 
 208. Id. 
 
 146. How far liable for acts of their employees or agents Railroad Co v 
 Read, N. S. vi. 118. 
 
 147. No distinction in Illinois between negligence of the president and directors 
 of corporation and that of their servants or agents. Id. 
 
 148. Owning land and laying out street near mill and building houses thereon 
 for operatives, not liable for injury from defect in street. Palmer v Manuf Co 
 N. S. vi. 382. ■' ■' 
 
 149. When member bound by charter conferring power of expulsion. Society 
 V. Commonwealth, N. S. vi. 633. 
 
 150. Sentence of society, acting judicially, cannot be inquired into collaterally. 
 
 151. Power of expulsion in a society to provide assistance to sick members. 
 /d. 
 
 152. When a charter directs that all elections of directors shall be at such 
 times as by-laws direct, no election can be held until a by-law directing when 
 has been adqpted. Johnson v. Jones, N. S. xii. 467. ' 
 
 153. A railroad corporation cannot lawfully take, hold and deal in real estate 
 for other purposes and to a greater extent than it is authorized so to do by its 
 charter, but the amount of lands which such corporation can legally hold can 
 only be determined by a direct proceeding against the same by the state for a vio- 
 lation of its charter. Laud v. Hoffman, N. S. xii. 143. 
 
 154. While a contract to convey to such corporation land which is not to be 
 used for the purpose for which it is authorized by its charter to hold real estate 
 
CORPORATION. 281 
 
 cannot be specifically enforced in a court of equity, yet a deed made to such cnr- 
 porRtion, and by the corporation to a third party, operates to convey all the title 
 of the oriiiinal grantor. Laud \.. Hoffman, N. S. xii. U3. 
 
 155. Where tlie charter of a corporation fixes the amount of its capital stock 
 and the number of shares into which it shall be divided, the corporation cannot 
 make assessments on the shares subscribed, for the purpose of carrying on the 
 {reneral business of the company, until all the capital stock has been subscribed, 
 unless either expressly or by implication n different intent appears in the char- 
 ter, or in the contract of subscription. P. Sf R. J. Railway Co. v. Preston, N. 
 S. xii. 212. 
 
 156. The charter of a railway company provided that its capital stock should 
 be one million dollars, and be divided into shares of one hundred dollars each ; 
 that the persons named as corporators should be authorized to cause hooks to 
 be opened for receiving subscriptions to the stock to the amount of $100,000 ; 
 that each subscriber at the time of subscription should pay five dollars on each 
 share by him subscribed ; that the corporate powers should be vested in a board 
 of nine directors ; that the first election for directors should be held as soon as 
 mi^t be after said $100,000 of stock should have been subscribed ; that the 
 directors should have power, and were required, to re-open the books to fill up 
 the capital stock, and to continue to receive subscriptions thereto until the whole 
 amount should have been taken ; and that all subscriptions sliould be paid at 
 such times, and in such amounts, and on such conditions as the directors might 
 prescribe. Hdd, that the directors could not call for payments on the subscrip- 
 tions until the entire one million dollars of stock had been subscribed. Id. 
 
 157. A corporation has no other powers than such as are specifically granted 
 in its charter, or such as are necessary for the purpose of carrying into effect 
 those expressly granted. Vandall v. Dock Co., N. S. x. 506. 
 
 158. A corporation formed " to buy, improve, lease, sell, &c., real estate," 
 may expend its funds for any purpose the direct and proximate tendency of 
 which is to enhance the market value of its land, though the money is not ex- 
 pended on the land itself; e. g., it may asses its stockholders for aid to a railroad 
 which does not touch its lands, but which by giving increased facilities of access 
 enhances their value. Id. 
 
 159. The word " improve " used in such connection with real estate, means 
 to enhance its market value. Id. 
 
 160. A corporation taking a greater rate of interest than is authorized by its 
 charter may be proceeded against for a forfeiture. Attorney -General v. Boatmen's 
 Sat: Inst., N. S. x. 743. 
 
 161. The note of a corporation signed by the secretary, as secretary, is not 
 the note of the secretary personally. Gaff" v. Theis, N. S. x. 743. 
 
 162. A company owning land and having power to mortgage, gave a mort- 
 gage of all tlieir estate and property real and personal ; the mortgage covered 
 the" land, whether it was necessary to the enjoyment of its franchises or not. 
 Robinson v. Atlantic ^ G. W. Railroad Co., N. S. X. 796. 
 
 163. A corporation cannot escape liability for injuries, because they happened 
 at a time when its sub-agent, employed to conduct its affairs, was in charge. 
 Losee V. Buchanan, N. S. xi. 194. 
 
 164. Corporations are not citizens within the meaning of the Constitution of 
 the United States, though the courts of the United States, for the purpose of sus- 
 taining jurisdiction, have conclusively presumed that a corporation chartered by 
 a state" is composed of citizens of that state. Pad v. Commonwealth of Virginia, 
 N. S. ix. 109. „ , . . , , . 
 
 165. The privileges intended by the provision of the constitution, declaring 
 that citizens of each state shall be entitled to all the privileges of citizens in the 
 several states, are those which are common to the citizens of the several states, 
 under their constitutions and laws, by virtue of their being citizens. Special 
 privileges enjoyed by citizens in their own state are not secured in other states 
 
 166. The members of a corporation are legally presumed to be citizens of the 
 state by which it was created. Ilobbs v. Manhattan Ins. Co., N. S. ix. 127. 
 
 167 The consolidation of the stock of a railroad company created by the laws 
 of Wisconsin with that of one created by the laws of Illinois, does not constitute 
 the corporations thus consolidating one corporation of both states, or of either. 
 Racine &■ M. Railroad v. Farmers'- Loan and Trust Co., N,. S. ix. 260. 
 
 168. A mortgage made iu the corporate name by the officers of the^consoUdatea 
 
282 CORPORATIOlf. 
 
 company, lipoti the line of the failroail in Illinois, is the -solo mortsage of the 
 Illinois corporation. Racine S; M. Railroad v. Famiers' Loan and Trust Co., N. 
 S IX, 260. , 
 
 169. The metnbers of a vojantary incorporated association are entitled, as in- 
 dividuals having a common interest, to sue in regard to matters pertaining to or 
 
 ' affecting their interests. Mears_ v, Moullon, N. S; ix. 328. 
 
 170. Where the hy-laws of acorporation provide that the officers shall receive 
 such compensation for services as the directors shaU fix, the secretary, who has 
 rendered services, will be entitled to compensation when none has been fixed. 
 Missouri River Railroad v. Richards, N. S. xi. 328. 
 
 Hi. Of the Rights and Liabilities of Stockholdehs and Scbscribers to 
 THE Stock op a Company. 
 
 171. A corporator would be hound by a modification of a charter by legisla- 
 tive action, which is only an auxiliary, but not a fundamental change. Stevens 
 V. Rutland df Burliiigton Railroad Co., 0. S. i. 154. 
 
 172. The plaintiffs in this action, holding Certificates by transfer from one to 
 whom they were fraudulently issued, and whJBh represented no stock, acquire no 
 rights as stockholders. Bank y. Railroad Co.^ 0. S. iv. 717. 
 
 173. Sale of railroad bonds — defence to note for the purchase-money. ' If a 
 railroad company issues and sells bonds bearing upon their face a certificate, 
 signed by persons describing themselves as trustees; that the same are secured by 
 a first mortgage to them in trust for the bondholders, there is no absolute pre- 
 sumption that a purchaser thereof relies upon such certificate; and, in an action 
 upon a note given by him as a part of the consideration of the purchase, the 
 question should be submitted to the jury to determine whethcij he accepted the 
 bond, relying to any extent upon such certificate. Edwards v. Marcy, N. S. i. 
 248. 
 
 174. A judgment against a corporation as acceptor of a draft is prim3, facie 
 evidence, in an aption againts a stockhblder to enforce his individual liability, 
 that the draft was properly drawn and accepted by a duly authorized officer of 
 the cbtripanyi Hoaglandv. Bell, N. S. i. 509. 
 
 • 175. The Act of April 20th 1853,'supplementary to the Act of April 7fh 1849, 
 i entitled an" Actio encourage manufacturing operations in this commonwealth," 
 ■- render's the stockholders in all companies incorporated in pursuance of its pro- 
 visions, or under the Act of 1849 and its supplements, liable for all debts con- 
 ■ tricted while' they are stockholders, although they have paid up the whole of 
 ■• tlicir-stocki Patterson \. WyomisdngManuf-. 0).,"N. S. i. 564. 
 
 176. A stockholder who has paid for his stock, has waived his right to object 
 ' thatthewhble number of shares was not Subscribed for. Ossipee Manuf. Co. v. 
 
 Canney, N. S. xiv. 456. 
 
 177. In a suit to recover a dividend, 'declared payable in dollars, evidence is 
 inadmissible that the corporation received its earnings in property other than 
 money. Scott v. Central Railroad Sf Banking Co. of Georgia, N. S. viii. 310. 
 
 178. That a member has more shares than the by-laws allow, is no defence to 
 a claim by a corporation on account of such shares. Hagerman v. Building As- 
 sociation, N.-. S. xiv. 643. ■• ; i 
 
 179. One who gives a note to a corporation cannot- deny that there is such a 
 corporation. Nashua Fire Ins'. Co. v." Moore, N, Si Siiv. 701. 
 
 180. Where a bill in equity is brought against the Stockholders of a corpora- 
 tion for the purpose of charging them personally, open, individual liability, for 
 the debt of the corporation, an equitable contribution is to be made by thecourt 
 between all the stockholders as far as may be. Erickson v. Nesmith, N. S. vi. 
 
 494. •' - ■■■■■■ -' •■ 1, ; ■' i • ■ 
 
 181. The statute of New Hampshire makes the Uability of stockholders in 
 manufactui-ing and many other corporations, jbint and several for all suchiicbts 
 of the corporation as they are made personally liable to pay, thus making 
 them liable as though they were partners without any act of incorporation. 
 Jd. 
 
 182. The riile among partners is, if after app:lying the assets there are still 
 outstanding liabilities, the partners niust contribute in proportion to their shares, 
 or if there is a surplus, it will be -distributed among them in like proportion. 
 Id. 
 
 183. Where a bill in chancery is brought against any of the stockholders of a 
 corporation to compel them to pay a debt of the corporation for which they are 
 
CORPORATION. 28g 
 
 individually liable, the peneral rule is, that all persons liable to contribute should 
 be made parties to the bill, Erickson r. Nesmith^'S. S. v\. 49i. ■■ 
 
 184. But this is a rule of convenience and not of necessitv, and when persons 
 interested are out of the jurisdiction of the court, and it is so stated in the bill and 
 admitted by the answer or proved, it is not necessary to make them parties but 
 a decree may be made against those over whom the court lias acquired jurisdic- 
 tion, where it can be done without injustice to those absent. Id. 
 
 185. Rights of scripholders measured by contract contained in scrio. Brown 
 Y. Lehigh Nav. Co., N. S. v. 184. 
 
 186. Scripholders have no right to dividends upon stock before conversion 
 thereinto, when corporation restricted to dividends upon stock. Id. 
 
 187. It is no defence to an action by the assignee of a corporation against a 
 stockholder that the corporate proceedings have not been strictly according to 
 statute. Upton v. Hansbrough, N. S. xii. 462. 
 
 188. The stockholders in a corporation de facto cannot object that it is not one 
 de. jure. Id. 
 
 189. One who voluntarily takes stock in a corporation which has all the ex- 
 ternal indicia of being a corporation, cannot deny the authority to issue such 
 stock, nor his liability thereunder to the creditors. " Id. 
 
 190. Action by corporation will lie on a subscription paper signed before the 
 incorporation, without formal assignment from the committee who received' the 
 signature. Danxville Seminary v. Welch, N. S. ii. 629. 
 
 191. Subscriber is liable for his subscription, though he has assigned his interest. 
 Dayton v. Borst, N. S. ii. .563. 
 
 192. What is sufficient evidence of acceptance of a subscription to stock. 
 Seminary v. McDonald, N. S. vi. 119. 
 
 193. What is sufficient consideration for promise to pay subscription. Id. 
 
 194. Subscriber to stock not released by fraud of agent in procuring same. 
 Walker V. Railroad Co., N, S. vi. .506. 
 
 1,95. Right to sue for subscription to stock of an existing corporation, where 
 the name imports a corporation authorized by law. Williams v. Association, N. 
 
 s. vi. 715. ;; 
 
 196. Subscribing to stock of incorporated association creates personal liability 
 to raise the proper proportion of the capital. Mininij Co. v. Levy, N. S. vii! 312. 
 
 197. Purchaser from original subscriber being accepted by the corporation, 
 there is privity between them. Id. 
 
 198. In suit under charter of another state the decisions of that state.are the 
 best evidence of the rights and duties of stockholders. Id. ' 
 
 199. Actions by stockholders. Howe v. Denel, N. S. v. 124. 
 
 200 The purchaser of a certificate of stock who surrenders it and has one 
 issued to himself, assumes the liabilities of an original subscriber. Upton v. 
 Ha-ishrough, N. S. xii. 462. 
 
 201. The legal title and legal liability is in the person in whose name the 
 stock is registered. Eastman v. Crosly, N. S. iv. 184. 
 
 202. Liability of subscribers to stock. Seymour v. Slurgess, N. S. iii. 498. 
 
 203. New York Act of 1845, in relation to suits against a foreign. Id. 
 
 204. The directors of a railroad company had power to receive subscriptions 
 for all the untaken stock, and to issue certificates therefor ; and the moment this 
 was done the holder became a stockholder, and entitled to a stockholder's rights. 
 Curry y. Scott et al.,!^. S. vii..l66. 
 
 205. The law authorizes no distinction between the rights of one stockholder 
 and those of another. If one has not paid his subscription in full he is a debtor 
 for so much of the subscription as remains unpaid, but is none the less a stock- 
 holder. Id. 
 
 206. It is to be admitted that an old stockholder had a right to subscribe to 
 the untaken stock, superior to the rights of one who owned no stock. Id. 
 
 207. It IS sufficient to authorize a finding that persons are members, if their 
 names are proved to he upon the subscription books for the capital stock. Frost 
 v. Walker, N. S. xii. 670. ' . . „ ; 
 
 208. By contributing to the capital, the subscribers became eiftitled to a share 
 in the profitSj and liable as copartners. Id. 
 
 209. There is no distinction between a subscriber for stock and a stockMHer, 
 as regards their liability. Id. .• ■ 
 
284 CORPORATION. 
 
 210. A corporator cannot plead an amendment of the charter made without 
 his consent when sued upon a contract with the corporation. Hope Mat. Fire 
 Ins. Co. V. Betkman, N. S. x. 197. 
 
 211. When can have receiver appointed. Howe v. Denel, N. S. v. 124. 
 
 212. When a stockholder may enjoin corporate acts. Graven-itine's Appeal, 
 N. S. V. 251. 
 
 213. An action to set aside such lease may be brought by a stockholder wh« 
 has not consented to it. Copelatid v. Citizens' Gas-liyht Co., N. S. xi. 194. 
 
 214. A member of a corporation not its financial officer, cannot make himself 
 its creditor by the voluntary payment of its debts. Blanchard v. Association of 
 Spiritualists, N. S. xi. 530. 
 
 IV. Op the Stockholders, Directors, and otBer Officers. 
 
 215. In the management of the property, business or liffairs of a corporation 
 by the president or directors thereof, they occupy a relation to the stockholders 
 similar to that of trustees to cestuis que trust. Commissioners v. Reynolds, N. S. 
 xiii. 376. 
 
 216. The directors of a corporation are its chosen representatives, and consti- 
 tute the corporation, to all purposes of dealing with others. Maynard v. Fire- 
 man's Fund Ins. Co., N. S. viii. 186. 
 
 217. A by-law requiring directors to be chosen at an annual meeting is direc- 
 tory only and not restrictive. Insurance Co. v. Moore, N. S. xiv. 701. 
 
 218. The legality of the election of directors cannot be brought collaterally in 
 question. Id. 
 
 219. The relation of directors to stockholders is that of trustee to cestuis que 
 trust, and they are liable to individual stockholders for fraudulent or careless ex- 
 penditure of the money of the corporation. Butts v. Wood, N. S. ii. 628. 
 
 220. Stockholder cannot maintain a bill in equity to restrain the company 
 from engaging in a new enterprise, if it is sanctioned by legislative grant and by 
 a vote of the majority of stockholders. Durfee v. Old Colony, ^c. Railroad Co., 
 N. S. ii. 700. 
 
 221. Where the charter vested the powers, &c., of the company in a board of 
 forty directors, and afterwards an act of legislature authorized the company to 
 reduce the number to twenty-one : held, in the absence of provision in the act re- 
 quiring the reduction to be made by stockholders, that the power vested in the 
 board of directors. Matter of Excelsior Ins. Co., N. S. ii. 632. 
 
 222. The directors are the agents of the corporation, and not the corporation 
 itself; and although they meet outside the limits of the state creating the cor- 
 poration, yet their proceedings will be valid and binding upon the company. 
 Ohio Sf Mississippi Railroad Co. v. McPherson, N. S. iv. 562. 
 
 223. Where the directors named in the act of incorporation met and organized 
 the company outside the limits of the state granting the charter, one who has 
 subscribed for the stock of the corporation by its corporate name, and paid instal- 
 ments called for by the directors, is precluded by his own acts from denying the 
 lawful existence of the corporation. Id. 
 
 224. The officers and directors of a corporate body are trustees of the stock- 
 holders, and in securing to themselves an advantage not common to all the stock- 
 holders, they commit a plain breach of duty. Koehler v. Black River Falls Iron 
 Co., N. S. In. 55. 
 
 225. A minority of the stockholders of a corporation may maintain a bill in 
 equity against it, on behalf of themselves and the others, for conspiracy and 
 fraud. Peabody v. Flint, N. S. iii. 120. 
 
 226. Personal liability of directors of insolvent corporation. Seumour v. 
 Sturgess, N. S. iii. 498. 
 
 227. Civil engineer and travelling agent at fixed salary is servant. Williamson 
 V. Wadsworth, N. S. vii. 508. 
 
 228. Claims of a portion of the trustees of a corporation are not within the 
 meaning of the Act of 1848, of New York, making the trustees of a manu- 
 facturing company liable for its debts in certain cases. Briggs v. Easterly, N. 
 o. xi. 660. 
 
 229. A president of a corporation cannot bring a suit in his own name, on an 
 agreement signed by him as president entered into on behalf of the corporation 
 Nichols V. Williams, N. S. xi. 265. 
 
 230. The managing agents of a corporation are liable in an action of tort for 
 
CORPORATION. 285 
 
 injuries resulting from the neffligence of the corporation in the use of a steam- 
 boiler. Losse V. Buchanan, N. S. xi. 194. 
 
 231. Responsibility of directors for the effects of acts friving their nominal 
 sanction as to the apparent value of stock, in inducing purchases thereof— dis- 
 cussed. N. S. iv. 130. 
 
 232. Payment of corporate debts by a stockholder in a foreign corporation 
 presumed voluntary. Eastman v. Crosbi/, N. S, iv. 184. 
 
 233. Action does not lie by one stockholder against another, to enforce per- 
 sonal liability for debt of corporation. Richardson v. Abmdroth, N. S. iv. 764. 
 
 234. Directors in a stock company are not as to the stockholders technicul 
 trustees. Spering's Appeal, N. S. xii. 784. 
 
 235. They are not liable for mistakes of judgment, especially where acting 
 under legal advice. Id. 
 
 236. They are responsible to the stockholders for losses from fraud, embez- 
 zlement, wilful misconduct, breach of trust, gross inattention or negligence, by 
 Avhich fraud has been perpetrated by the agents, officers or co-directors. 2.1. 
 
 237. Where owner of stock assigns more shares than he is entitled to. St. 
 Nicholas Ins. Co. T. Howe, N. S. ii. .563. 
 
 238. Authority to sell the bonds of a railroad cannot be inferred from being a 
 director. Titus et al. v. Cairo ^- F. Railroad Co., N. S. xiv. 252. 
 
 239. The secretary of a corporation is not liable on a promissory note signed 
 with his own name, " Sec'y" affixed, and bearing the seal of the corporation. 
 Means v. Swormsiedt, N. S. X. 64. 
 
 240. Acts required to be done by the directors of a company, must be done by 
 them when lawfully convened. Johnson v. .lones, N. S. xii. 467. 
 
 241. An election is not legal if the list of stockholders exhibited on the day 
 of election is not a true list. 7c/. 
 
 242. Stockholders who are not such on the day of 'election cannot vote. LI. 
 
 243. A majority of the board of directors can use the name of the corporation 
 in n suit. Id. 
 
 244. An Act of Assembly authorizing the issue of preferred stock did not 
 work a change in the charter until accepted by the stockholders, but when so ac- 
 ceptcii the directors are authorized to issue the preferred stock. Cmrij v. Scott, 
 N. S. vii. 166. 
 
 245. The legislature may confer enlarged powers upon the manager of a cor- 
 poration, with the assent of shareholders ; and no one stockholder by refusing 
 his assent can hinder the exercise of the enlarged powers. Id. 
 
 246. Subscribing to stock of incorporated association creates personal liability 
 to raise the proper proportion of the capital. Mining Co. v. Leoij, N. S. vii. 312. 
 
 247. Purchaser from original subscriber being accepted by the corporation, 
 there is privity lietwecn them. Id. 
 
 248. In suit under charter of another state, the decisions of that state are the 
 best evidence of the rights and duties of stockholders. Lum v. Robertson, N. S. 
 vii. 312. 
 
 249. Railroad company purchased lands in fee and then abandoned for rail- 
 road purposes, the land did not revert. Page v. Heineberg, N. S. vii. 697. 
 
 250. An indorsement on certificates of preferred shares in a corporation issued 
 by order of the directors as follows : " Five per cent, semi-annual dividend guar- 
 anteed from September 1st 1872," signed by the treasurer, is not to be under- 
 stood as a guaranty that the corporation will pay dividends at all events, but 
 only a guaranty to pay dividends to the holders of the certificates in preference 
 to others, when the earnings of the corporation will warrant it. Lockhart i. 
 Van Alsti/ne, N. S. xiv. 180. 
 
 251. A dividend, in the common understanding of the term, when applied to 
 something to be paid by corporations not insolvent or in contemplation ot disso- 
 lution, means a sura which tlie corporation sets apart from its profits to be divided 
 among its members, and so the word must be understood in such a guaranty. Id. 
 
 V. Or THE Stock and its Tkansfeb, and herein of the Fbaddulent 
 ISSUE OF Stock. 
 
 252. Upon a pledge of stock in a railroad corporation in New Hampshire, 
 there should be such delivery as the nature of the thing is capable of, and to be 
 good against a subsequent attaching creditor, the pledgee must be clothed with 
 all the usual muniments and indicia of ownership. Pinkerton v. Manchester and 
 Lawrence Railroad Co., N. S. i. 96. 
 
,286 CORPORATION^. 
 
 253.' Under the laws of New Hampshire, a record of the ownership of shares 
 must be kept by such corporations in this state, and by proper certifyin}; officers 
 resident therein. Pinkerton v. Manchester and Lawrence Railroad Co., N. S. i. 96. 
 
 2.54. On the transfer of stock the delivery will not be complete until an entry 
 of such transfer is made upon the stock record, or it he sent to the office for that 
 purpose, and the omission thus to perfect the delivery will be primi facie, and 
 if unexplained, conclusive evidence of a secret trust, and therefore as matter of 
 law fraudulent and void as to creditors. Where the transfer was made at a dis- 
 tance from the office, and the old certificates surrendered, and new ones given by 
 a transfer agent appointed for that purpose, and residing in a neighboring state, 
 proof that the proper evidence of such transfer was sent to the keeper of the 
 stock— record to be entered by the earliest mail communication, although not 
 received until an attachment had intervened, would be a sufficient explanation of 
 the want of delivaryj and such transfer would be good against the creditor. Id. 
 
 255. But where the pledge was made in Boston on the eighth day of July by 
 a delivery over of the certificates, and nothing more done until the third day of 
 the following August, and then the old certificates, surrendered to the transfer 
 agent there, and new ones received from him, and notice given by the first mail 
 to the office at Manchester in this state : it was held, that as against an attach- 
 ment made between the obtaining the new certificates and the notice at the office, 
 the possession was not seasonably taken, and the transfer was therefore not valid. 
 Id. 
 
 256. Where, upon a sale on execution of shares in a corporation, a certificate 
 is demandfed Of tlie corporation by the purchaser, and a suit is brought for refus- 
 ing to give such certificate, the measure of damages is the value of the stotk at 
 the time of the demand, with interest, and not the value at the time of trial or 
 at any intermediate period. Id. ' 
 
 257. Shares in a corpoi-atioh whose charter provides that the capital stock of 
 the, company shall be deemed personal estate, and "be transferable upon the 
 books of the said corporation," can be efl'ectually transferred tfs collateral se- 
 curity for a debt, as against a creditor of the bailor, who attaches them, without 
 notice of any transfer, by a delivery of the certificates thereof, together with a 
 
 , blank irrfevooaWe power of . attorney for the transf9r thereof from the bailor to 
 the bailee. Broadway Bank v. Thomas McElraih, N, S. i. 696. 
 ' 25S, The registration of certificates of stock on the books of the company, 
 though made a pre-requisite to the right of voting or of exercising any cofitrol 
 in the management of the company, is not necessary to a valid title in the Stock 
 itself, find sb the absence of a power to transfer will not affect the rights of a 
 bon^ fide purchaser of a certificate of stock ; he would thereby only become the 
 equitable instead of the legal holder, but with the right to procure a transfer on 
 the books of the company. Ketchum v. Bank, 0. S. iii. 145. 
 
 259. Forged transfer of shares — liability of company to re-transfer, though the 
 forgery was done by member of a partnership which held the stock as partnership 
 property. Sec Midland RaUroad Co. y. Taylor, N. S. i. .372. , ' ,' ' 
 
 260.. Restrictions on the transfer of stock. Lcggett v.. Bank of Sing Sing, N. 
 S. ii. 249. , , . ; 
 
 261. Where a bond is convertible into stock within a certain time; an agree- 
 ment to extend the time of payment of the bond does not extend the time of con- 
 version. Muhlenberg y. Railroad Co.,.N. S. iv. 184. ' ' 
 
 262. In a suit by a purchaser of stock against the president of a corporation 
 to recover the value of stock fraudulently over-issued ■ by him, the plaintiff must 
 prove that tlie certificates purchased by him did not' represent genuine stock. 
 Bruff V. Mali, N. S. vii. 48. 
 
 I 263.' The' plaintiff having proved that his certificates were issued after the 
 
 entire stock authorized by law had been taken and certificates issued therefoii tlia 
 burden was then shitted to the defendants to prove that plaintiff's stock was issued 
 on the surrender or transfer of genuine stock. Id. ' ' • ■ . ; 
 
 _ ; , 264. : TJnlesa this, evidence clearJy, and indjsputa.hly establlshes-the geriuiheness 
 of plaintiff's stock, the question should be submitted to thejury; Id, 
 : , 265; ' The', jiutjieji'ticationfof icertificates :oif stoek "by the president of a corpora- 
 tion by his Signature in the'uaual mode,:is equivalent to a cbiitinuing and re- 
 
 ■ vflewed guarantee to successive purchasers that the stoek is genuine, and the 
 , plaintiff is trot bound. to prove that, he purchased his certificate directly from the 
 president or the company. Id. ..,'.; . , - , : 
 
GORPORATldN'. |87 
 
 26(5. Transfer of stock when there is no right to make same. Baiiard v. 
 Hank, N. S. vi. 633. 
 
 267. Banks and other corporations may demand evidence of authority to 
 transfer stock. Id. 
 
 268. Transfer of stock by holder of legal title, th 
 
 269. Authority of administrator, executoi', and trustee for insolvent, to trans- 
 fer stock. Id. ''•'-. 
 
 270. When company bound to permit transfer of its stock belongiftg to one 
 indebted to corporation. Dock Co. v. Heron, N. S. vi. 634. 
 
 271. R. & G. L. Schuyler being the owners of one hundred and sixty shares 
 in the defendants' company, of which R. Schuyler was the register and transfer 
 agent, the latter in 1849 delivered to the plaintiffs, as collateral security for a 
 debt due by him, certificates for ninety of those shares, with a blank power, ;No 
 application for a transfer on the books of the company, as required by the charter, 
 was made until 1854, when it was discovered that K. S. had been guilty of a 
 fraudulent over-issue of the stock of the company to his firm, but there was no 
 evidence that any of this spurious stock had passed out of the hands of the firm be- 
 fore the delivery of the genuine certificates of the plaintiffs. The company sub- 
 sequently refused to allow the transfer of the latter. Hdd, 
 
 (1.) It is incumbent upon the defendants to show, if such be the fact, that 
 these certificates do not represent the genuine stock of the company, that being a 
 fact more exclusively in their power to prove. 
 
 (2.) The plaintiffs are to be regarded as the first and only equitable purchasers 
 and owners of ninety of the one hundred and sixty shares of genuine stock held 
 by Schuvler. 
 
 (3.) The bon§.fide holders of such certificates had a right to rely upon them, 
 as securing to the owners the shares which they represented, against ajll transfer 
 to other parties. 
 
 (4.) The knowledge of Schuyler that these certificates were held by bon^ fide 
 purchasers, for value, was notice to the company, while he acted as their transfer 
 agent in registering the transfers to subsequent parties, and, thus afiected tjiem, 
 constructively, with the fraud of their agent, and thereby avoided the effect of such 
 transfers as between the plaintiffs and the company, and rendered theni liable to 
 make good the plaintiffs' loss thereby sustained. 
 
 (5.) It is by no means certain that the transfers registered are to be regarded 
 as having operated upon the plaintiffs' shares. 
 
 (6.) Blank powers of attorney, for transferring stock, although under seal, 
 may be filled up at the convenience of the transferee, and thus operate as of 
 their date. 
 
 (7.) Such being the settled law of the state of New York where this instru- 
 ment was intended to take effect, will remove all question as to its validity, even 
 if we admit that the law of the place where it was executed is otherwise. 
 Bridgeport Bank v. New York ^ New Haven Railroad, N. S. i. 210. 
 
 272. The certificates were void in the hands of the first holder, because fraudu- 
 lently issued. Bank v. Bailroad Co., O. S. iv. 717. ^ 
 
 273. They were void in his hands, because issued without authority, there 
 having been no surrender of a previous certificate and transfer on the books of 
 actual stock. They were void because the stock they professed to represent had 
 no real existence, and under the charter of the company could not have any. Jd. 
 
 274. They were void, under all possible circumstances, so that no person can 
 claim under them rights as a stockholder, or damages for the refusal to admit 
 him to such rights, jld. 
 
 21f). The law will not require a corporation to violate its charter by creating 
 an excess of stock to supply a spurious certificate ; it will not punish it in dam- 
 ages for refusing to be guilty of such a violation. Id. 
 
 276. By a purchase of a certificate of stock in a corporation with a pow(;r to 
 transfer it, the purchaser, before transfer, acquires an equitable title to the ven- 
 dor's stock ; and if the vendor's title is open to no impeachment, a right to call 
 upon the corporation to permit him to clothe himself with the legal title by a 
 transfer upon the' books and a certificate ; but he acquires no new or superior 
 rights against the corporation^ Id. 
 
 277. Certificates of stock in a'cbrppration are not negotiable instruments in 
 the sense of the commercial law, so that by their indorsement and delivery to a 
 purchaser in good faith, a title to the stock they profess to represent may be ac- 
 
288 CORPORATION. 
 
 quired, if it be spurious or void in the hands of the vendor. Bank v. Bailroad 
 Co., 0. S. iv. 717. 
 
 278. The holder of a false or fraudulent certificate of stock cannot by indors- 
 ing and transferring it to another create a title to the stock it professes to repre- 
 sent, hostile to the corporation. Id. 
 
 279. Certificates of stock in a corporation are not in any sense securities for 
 money, but simply the muniments and evidence of the holder's title to his inter- 
 est in the corporate property. Id. 
 
 280. Nor are they in the nature of letters of credit, on the faith of which 
 every one may sot. Neither by their terms nor by implication do they request, 
 invite, or guaranty credit any more than the possession of property of any de- 
 scription, or choses in action. Id. 
 
 VI. Municipal and County Subscriptions to Stock. 
 
 281 . An Act of Assembly authorizing subscriptions by a city to the stock of a 
 railroad corporation, is not forbidden in art. 1, sect. 13 of the state constitution; 
 that section not being u restriction upon the legislative authority of the two 
 houses, but the bestowal of a privilege upon the separate branches. Sharpless v. 
 Mayor of Philadelphia, 0. S. ii. 27, 85. 
 
 VII. Of the Liabilities op Municipal Corporations. 
 
 282. A municipal corporation is not liable in damages to an individual for in- 
 juries caused by an opening in a sidewalk, made by an owner of the soil or of the 
 adjacent land, without proof of notice of the insufficiency or defect, and neglect 
 to cause it to be remedied. Hart and Wife v. City of Brooklyn, N. S. i. 631. 
 
 283. There is a distinction between the power of municipal corporations over 
 the carriage-ways of their streets and that which they possess over sidewalks. Id. 
 
 284. A resolution of the city councils, which is to be executed and carried into 
 effect by the mayor, must be presented to him for his approval and be recorded, 
 
 • in order to be valid. Kepner v. Commonwealth, N. S. i. 564. 
 
 285. Where individuals, claiming to be the agents of a municipal corporation, 
 and to act under resolutions of the common council directing the removal of all 
 obstructions in a particular street, go beyond the limits of the street, upon prem- 
 ises in the rightful possession of another, and there commit unlawful acts to the 
 owner's injury, they are personally liable to the owner of the property, but no 
 action will lie against the corporation. Harvey v. City of Rochester, N.'S. i. 312. 
 
 286. A city is not estopped from claiming land which it owns by the wrong- 
 ful act of its assessors in taxing it to a person who had no title to or possession 
 of the same, or by a collector's sale for non-payment of such tax. Rossire v. 
 City of Boston, N. S. i. 690. 
 
 287. A common council has no authority, by its agents, servants, or otherwise, 
 to enter summarily upon premises within the corporate bounds of the city, which 
 arc owned or lawfully possessed by an individual, and there commit unlawful 
 acts to his injury. Harvey v. City of Rochester, N. S. i. 312. 
 
 288. If it does so, its acts will be ultra vires, for which the corporation is not 
 liable ; even if the ordinance under the authority of which the wrongful acts are 
 done specifically direct the doing of those particular acts. Id. 
 
 289. The city of Detroit let to the lowest bidder, as required by its charter, a 
 contract for the construction of a sewer through one of its public streets. The 
 contract bound the contractor at all times to keep the excavation fenced in, and 
 carefully guarded to prevent accidents, and provided that the contractor should 
 be liable for iill damages that might arise from accident occasioned by his neglect. 
 For want of proper guards to the excavation, an injury occurred to a person 
 driving along the street. Held, that the city was liable. City of Detroit v. Coreii, 
 N. S. i. 186. •" 
 
 290. There is no distinction between a municipal corporation and towns or 
 counties, which enables a taxable inhabitant of the former to maintain an action 
 to restrain or avoid a corporate act not affecting his private interest, as distinct 
 from that of other inhabitants. Roosevelt v. Draper, N. S. i. 180. 
 
 VIII. Or Unincorporated and Religious Societies. 
 
 291. Right of government in — title to property of a divided congregation. 
 McGinnis et al. v. Walson et al., N. S. ii. 251. 
 
 292. A voluntary society, incorporated, may be compelled by mandamus to 
 restore a member unjustly expelled. People ex rel. Kothler v. Mechanics' Aid 
 /Society, N. S. xi. 460. 
 
CORPORATION. 289 
 
 293. 'Every member of an nnincorporatecl joint-Rtork company is personally 
 liable for all its debts. Frost v. Walker, N. S. xii. 670. 
 
 IX. Op Devises and Bequests to and fok Corpouations and Societies, 
 
 AND herein of GiFTS FOR ChAKITADLE AND RELIGIOUS UsES. 
 
 294. The rale that an unincorporated association cannot take by devise or gift, 
 applies only to land or to personalty where a permanent trust is created. There 
 is no incapacity to take an absolute unconditional bequest of personalty. Tick- 
 nor's Estate, N, S. iv. 269. 
 
 295. The statute of Michigan relatins; to religious corporations, does not ap- 
 ply to foreign religious corporations. Id. 
 
 X. Of the Right of Compensation for the use of Private Property for 
 A EoAD ok Canal, and of the kemedy for the Recovery of Damages. 
 
 296. The amount of damages in railroad cases cannot be assigned for error in 
 this court, for it has, and can have, no proper means of judging of the finding of 
 the jury. Ohio ^ P. Railroad Co. v. Bradford's Heirs, 0. S. i. 120. 
 
 297. Sequestration. Where a turnpike road sequestered, it is placed in the 
 care of the court, and the sequestration cannot be revoked until all the expenses 
 incurred in the care of the road are refunded. Beam v. Somerset ^ C. T. Road 
 Co., 0. S. i. 120. 
 
 298. This court cannot inquire into the amount of damages allowed by the 
 inquest in railroad cases. The evidence on which they proceed consists partly 
 of a view which we cannot have. 0. 8^ Pa. Railroad Co. v. Vicar;/, 0. S. i. 121. 
 
 299. The constitution does not require consequential injuries to property to be 
 prepaid. Union Canal Co.''s Appeal, N. S. x. 405. 
 
 300. The stockholders in a railroad are not competent as jurors to determine 
 the necessity or compensation of taking land for the use of the railroad. 
 Peninsular Railway v. Howard, N. S. x. 405. 
 
 XI. Op the Rejiedy hy and against Corporations, and herein of what 
 IS Notice to a Corporation. 
 
 301. On the trial of an action of assumpsit by plaintiffs, who were owners of 
 a turnpike road, against a defendant for tolls due for the use of the road, a plea 
 involving a forfeiture or invalidity of the charter is demurrable, or may be treated 
 as a nullity by the court. The violation of a charter of incorporation cannot be 
 made the subject of a judicial investigation in a collateral suit. Dpr Sr Co. v. 
 Walker Sr Howard, N. S. i. 567. 
 
 302. The Statute of Limitations does not operate as a bar to an action in the 
 courts of New York against a foreign corporation. Thompson v. Tioga Railroad 
 Co., N. S. i. 510. 
 
 303. Where a bond for the payment of money is issued by a railroad company 
 
 to , or assignees, any lawful holder, by delivery or transfer, 'may insert his 
 
 own name in the blank as the payee, and maintain an action thereon. Hubbard 
 V. New York Sf Barkm Railroad Co., N. S. i. 633. 
 
 304. Under the present state of the decisions of the Supreme Court of the 
 United States, a corpor.ition is not per se a "citizen within the meaning of the 
 third article of the constitution, which gives jurisdiction to the Federal courts 
 over the controversies between citizens of different states." But where a cor- 
 poration sues, or is sued, its governing officers, as the president and directors, 
 are the substantial party ; and if they are citizens of the state which created the 
 corporation, and the other party is a citizen of some other state, the Federal 
 courts have jurisdiction, and the" provisions of the Judiciary Act with regard to 
 the removal of such causes from state courts, apply. Wheeden v. Camden Sr 
 Amboij Railroad Co., O. S. iv. 296. 
 
 305. It is not material, in such case, that the corporation has an office and 
 does a largo business in the state of which the other party is a citizen, nor that 
 some of the stockholders are citizens thereof. Id. 
 
 306. It is to be presumed, in the first instance, that the governing officers of 
 the corporation are citizens of the state which created it, and in which it does 
 
 business. Id. „ , ,, . i c • 
 
 307. The decisions of the Supreme Court of the United States, in a question 
 of the construction of the constitution, are conclusive upon the state courts. Id. 
 
 308. A court of bankruptcy has all the powers vested in the officers of a com- 
 pany in regard to making assessments and calls of stock. Upton v. Hansbrough, 
 N. S. xii. 462. 
 
 19 
 
290 CORPORATION. 
 
 309. The fact that the officers represented that no assessment wonld ever be 
 made, is no defence as against the creditors of the corporation. Upton v. Hans- 
 orough, N. S. xii. 462. 
 
 310. The liability imposed upon the directors and officers of a corporation to 
 pay all debts exceeding the amount of capital paid in, is a penalty, and can only 
 be enforced in the state chartering such corporation. First National Bank v. 
 Price, N. S. x. 472. 
 
 311. Delinquent debtor not allowed to make technical, but unmeritorious de- 
 fence. Lum V. Robertson, N. S. vii. 312. 
 
 312. Defendant sued by corporation may deny its legal existence. National 
 Bank of Metropolis, N. S. vii. 59. 
 
 313. A stockholder cannot maintain an action to effect a forfeiture of the 
 charter for non-user within a year. Gilman v. Green Point Sugar Co., N. S. xi. 
 194. 
 
 314. A joint action of tort in the nature of trespass maybe maintained against 
 a corporation and its servant, for a personal injury inflicted by the latter in dis- 
 charging the duties imposed on him by the corporation, although they might 
 have been equally well discharged without the use of undue or illegal force. 
 Eewett V. Swift, N. S. i. 505. 
 
 315. Whether real estate has been acquired by a corporation for an authorized 
 use, can only be inquired into by the state. Haywood v. Davidson, N. S. xiii. 
 254. 
 
 316. Pleading the general issue admits that plaintiffs are a corporation. Fire 
 Ins. Co. V. Moore, N. S. xiv. 701. 
 
 317. A quo warranto to dissolve a corporation must be against the corporation 
 itself, and not its members. State of Ohio v.. Taylor, N. S. xiv. 754. 
 
 318. The question of the competency of a foreign corporation to be sued is 
 admitted by a general appearance from term to term, and filing no dilatory plea. 
 Stanton v. Haverhill Bridge Co., N. S. xiv. 469. 
 
 319". A summons is not a proper process in a criminal prosecution against a 
 body corporate. Indiana v. 0. Sf M. Railroad Co., N. S. iv. 583. 
 
 320. A corporation can neither commit a crime or misdemeanor by any posi- 
 tive or affirmative act, nor incite others to do so, as a corporation. Id, 
 
 321. Holder of coupon payable to bearer may recover amount with interest and 
 exchange. Gelpcke v. Diibuqm, N. S. iii. 629. 
 
 322. Forfeiture of charter for non-user of road — mode of enforcing the pen- 
 alty in New York. People v. Albant/ ^ Vermont Railroad Co., N. S. ii. 121. 
 
 323. Corporation liable for tort in keeping vicious dog, but scienter must be 
 proved as to some person having charge. Stiles v. Cardiff Co., N. S. iv. 315. 
 
 324. Verbal promise of directors of corporation to pay its debts, in considera- 
 tion of election, within Statute of Frauds. Maule v. Bucknell, N. S. v. 379. 
 
 325. Action by one foreign corporation against another cannot be removed. 
 Ayres v. Railroad Co., N. S. vi. 719. 
 
 326. Aliter where action is by assignee of a foreign corporation, who is a citi- 
 zen of the state. Id. 
 
 327. Knowledge of the agent is not notice, either actual or constructive, to his 
 principal. Brown v. Bankers' and Brokers' Telegraph Co., N. S. ix. 315. 
 
 328. A corporation is liable to indictment for the act of its officer or employee. 
 United Slates v. Baltimore ^ Ohio Railroad Co., N. S. vii. 757. 
 
 329. Upon a former trial between the same parties the counsel for the defend- 
 ants, a corporation, had admitted their incorporation and that certain persons 
 were officers of the company at a certain time, and the plaintifl' had therefore in- 
 troduced no proof upon these points. A second trial was had, previous to which 
 the defendants pave the plaintiff notice thalthev withdrew their admission of the 
 former trial. Upon the second trial the plaintiff, having given notice to the de- 
 fendants to produce the records of the corporation in court, which they neglected 
 to do, offered in evidence the admission of their counsel upon the former trial. 
 Held, 1. That the admission did not bind the defendnnts in such a way as to estop 
 them from denying on the second trial the facts admitted on the first. 2. But 
 that the admission was admissible in evidence, with all the circumstances in 
 which it was made, as tending to prove the facts admitted. Perry y. Water-proof 
 Manufacturing Co., N. S. xiii. 430. 
 
 330. In an action under the 1 4th section of the " General Manufacturing Law" 
 of 1849, against a director who has consented to a dividend greater thau^tho net 
 
CORPORATION. 291 
 
 profits of the company, for a debt thereof, the company need not be joined as 
 defendant. Hill v. Frazier, O. S. ii. 185. 
 
 .331. The treasurer of a manufacturing or other company cannot buy up claims 
 against the company, for his own profit ; if he does, he is entitled to be reim- 
 bursed only the amount actually paid, or to have credit therefor. Id. 
 
 982. Nor can such a suit be maintained by an inhabitant who is also a creditor, 
 holding the public stock of the corporation, to yoid an alienation of its property 
 upon which he has no specific or general lien, and which is not shown to be 
 essential to the security of the corporate creditors. Roosevelt v. Draper, N. S. i. 
 180. 
 
 333. A governor of the almshouse is one of the heads of departments, and an 
 officer of the city of New York, prohibited by chapter 187 of 1849, section 19, 
 from being interested in the purchase of any real estate belonging to the corpo- 
 ration . Td. 
 
 Xn. Priority of Creditors. 
 
 334. Priority among creditors of president and of the corporation, when the 
 latter was organized for fraudulent purposes. Booth v. JBunce et al., N. S. ii. 
 120. 
 
 XIII. Jurisdiction OP Equitt over. 
 
 355. Receiver not to be appointed where corporation not a party to the bill 
 nor in court upon notice. Gravenstein's Appeal, N. S. v. 251. 
 
 336. A court of chancery has no jurisdiction to determine the validity of an 
 election of the directors of a private corporation. Owen v. Whitaker, N. S. ix. 
 318. 
 
 337. A court of equity will not relieve on a general charge of fraud, but it 
 must be alleged in what the fraud consists, and how it has been afl^ected. New 
 Brunswick, %■€., Railway Co. v. Conybare, N. S. i. 373. 
 
 338. Stockholder may be allowed in equity to defend in the name of the corpo- 
 ration for specific purposes. Branson v. Railroad Co., N. S. iv. 571. 
 
 339. The use of a canal of an incorporated company cannot be restrained by 
 injunction on allegations of injuries to private parties by its use or construction. 
 Union Canal Co.'s Appeal, N. S. x. 405. 
 
 340. A court of equity has jurisdiction to take charge of the property of a 
 foreign corporation, to preserve it for creditors. Murray v. Vunderbilt, N. S. ii. 
 765. 
 
 341. An appearance by officers of the court will be valid-and give jurisdiction, 
 ■whether the service upon the officers be good or not. Id. 
 
 342. Visatorial powers of chancery under New York Revised Statutes. Howe 
 V. Denel, N. S. v. 124. 
 
 XIV. Of the Receiver, and herein of Sequestration. 
 
 343. When one of the receivers named in the bill is also a stockholder, the 
 bill cannot be sustained. Wiswell v. Starr, 0. S. ix. 439. 
 
 344. A receiver appointed by the Circuit Coart of the United States for the 
 southern district of Ohio, to take possession of a railroad and its effects, may sue 
 in an Ohio state court, upon a contract made by. that corporation in the corporate 
 name of the railroad, without disclosing in the petition his own name as receiver. 
 0. i- M. Railroad Co. v. /. Sf C. Railroad Co., N. S. v. 733. 
 
 345. Action by receiver. Osgood v. Layton, N. S. vii. 252. 
 
 346. Injunction against particular fraudulent acts of directors. Howe v. Denel, 
 N. S. V. 124. 
 
 347. A receiver of all the mortgaged property having been appointed, the land 
 ■was in legal custody and could not be levied on. Robinson v. Atlantic Sc G. W. 
 Railroad Co., N. S." x. 796. 
 
 348. Whether the land should pass into the hands of a receiver, could be deter- 
 mined only by the court that appointed him. Id. 
 
 349. Effect of dissolution of, and how it may be done. Coulter v. Robertson, 
 0. S. i. 500. 
 
 350. Insolvency and suspension of business being admitted, in answer to a bill 
 praying for dissolution of corporation, no excuse is admissible for the forfeiture. 
 People v. Northern Railroad Co., N. S. viii. 631. 
 
 351. Charter forfeited on quo warranto and trustee appointed to collect assets 
 and pay debts, surplus belongs to stockholders. Lumv. Robertson, N. S. vii. 312. 
 
292 CORPOKATION— COSTS. 
 
 XV. Or THE Dissolution of Coeporations. 
 
 352. The trade-mark of a defunct corporation does not descend to the stock- 
 holders at the time of its dissolution. Sherwood v. Andrews, N. S. v. 588. 
 
 XVI. Of the Power of the Legislature over Corporations. 
 
 353. Power of legislature to tax corporation. Commonweahh v. Gas-light Co., 
 N. S. vi. 384. . 
 
 354. An act of incorporation, in which the legislature has reserved the right 
 of repeal, may be repealed by implication. Union Branch Railroad Co. v. East 
 Tenn. ^ Georgia Railroad Co., O. S. ii. 303. 
 
 355. Legislature may take the franchises of a corporation for public use. 
 Kerr's Petition, N. S. iv. 123. 
 
 356. By virtue of the joint legislation of the states of Pennsylvania and New 
 Jersey, a bridge was erected by an incorporated company across the Delaware 
 river, at Trenton, where the river is navigable and the tide rises ; on'e-half of 
 the stock was taxable in Pennsylvania. Penna, v. Trenton Bridge Co., O. S. 
 ix. 298. 
 
 357. A state cannot tax a foreign corporation on a principle different from 
 that on which she can tax one of her domestic corporations. Erie Railway Co. 
 V. Ntw Jersey, N. S. iv. 238. 
 
 358. In respect to public corporations, which exist for public purposes alone, 
 like cities, &c., the legislature can modify, restrain and enlarge them. Inhabit- 
 ants of North Yarmouth v. Shillings, 0. S. viii. 307. 
 
 CORPSE. 
 
 Removal of, in England, from ground of Protestant dissenters, is a misde- 
 meanor. Reg. V. Sharp, 0. S. v. 704. 
 
 COSTS. 
 
 1. So long as good faith is observed, the defendant is not bound to active dili- 
 gence in collecting his costs of the original plaintiff. Heywood v. Benton, N. S. 
 xii. 55. 
 
 2. Costs are not incident to the debt, or to the action until it is pending, and 
 although expense may have been made preparatory to its commencement, the 
 plaintiff has no right to demand costs for that reason, nor is the defendant 
 obliged to tender them until they become thus incident by the commencement of 
 the action, which in this state is the actual service of process on the defendant. 
 Studwell V. Cooke, N. S. xii. 223. 
 
 3. There is no equity in favor of a creditor to require a debtor to pay the ex- 
 penses of proceedings taken for the institution of a suit, before its actual com- 
 mencement, so strong as to prevail over the right of the debtor to make tender 
 of the debt. Id. 
 
 4. No right to costs by reason of an equity has ever been recognised by the 
 common law, and a court of law cannot yield to such an equity without a de- 
 parture from principle. Id. 
 
 5. Prom a review of the authorities in England and in this country, it appears 
 that every attempt which has been made to induce courts of law to recognise such 
 an equity, and to require payment of costs before suit pending, has failed. Id. 
 
 6. Therefore, where in foreign attachment, after service on the garnishee, but 
 before service on the defendant, the defendant tendered to the plaintiff the amount 
 of the debt alone, without the costs of the suit, it was held, that such tender was 
 sufficient. Id. 
 
 7. Where a defect of parties is apparent on the complaint, but no objection 
 made until after appeal, neither party is entitled' to the costs of the appeal. 
 Fisher v. Huhbell, N. S. xii. 733. 
 
 8. In any case where damages would have been recoverable at common law, 
 the plamtiff is entitled to costs, notwithstanding that a new and different mode of 
 proceedmg has been introduced by statute. Therefore, under the General Plank- 
 road Act of Pennsylvania of 7th April 1849, which provides for the assessment 
 of damages under the Act by freeholders, upon which assessment judgment is to 
 be entei-ed before a justice of the peace with an appeal, as in ordinary cases, a 
 plamtiff succeedmg in an appeal is entitled to costs. Beardsleii v. Ilonesdale Plank- 
 road Co., 0. S. ii. 660. 
 
 9. A trustee who is not chargeable with fraud is entitled to costs Kent v 
 Jaulchms, N. S. xi. 271. 
 
 10. If a mortgage authorizes payment of the expenses of the mortgagee, a 
 
COSTS— COUNSEL AND COUNSEL FEES. 293 
 
 court of equity may pay costs out of the funds in its hands. Branson v. Railroad 
 Co., N. S. iv. 767. 
 
 U. Bankrupt summoned by creditor is not entitled to witness fees. Be Mc- 
 Nalr, N. S. viii. 243. 
 
 12. In an action on an injunction bond, plaintiff cannot recover for attorney's 
 fees in the original case. Riddle et al. v. Chendle, N. S. xiv. 752. 
 
 13. A plaintiff who agrees to discontinue without costs will be liable for costs 
 that may accrue from resisting the agreement. Staples v. Wellinnton, N S-xiv 
 194. ■^ 
 
 14. A settlement privately effected between the parties for the purpose of pre- 
 ( venting the attorney from obtaining his costs will not be recognised by the court. 
 
 Rnsquin v. Knickerbocker Stage Co., 0. S. ix. 696. 
 
 15. A settlement of an action by the parties to deprive an attorney of his costs 
 will not be allowed to prejudice his right to taxable costs. Carpenter v. Sixth 
 Are. Railroad Co., N. S. i. 410. 
 
 16. A person may serve a subpoena on his witnesses, and in cases where he 
 succeeds in the trial may recover costs therefor. Gordon v. Stott, N. S. vii. 749. 
 
 17. OfiScer not bound by taxation of his fees in suit to which he is not party, 
 but aliter as to party. Baldwin v. Hatch, N. S. vii. 446. 
 
 18. A court possesses power and jurisdiction to determine whether it has au- 
 thority to entertain a particular controversy, although its decision and law may 
 be that it has no such authority, and it therefore dismisses the writ. Such a 
 question may be presented by demurrer, and its decision must be a judgment. 
 King V. Poo'e, N. S. i. 632. 
 
 19. Of administrative suits. Note to Croshi/ v. Mason, N. S. vi. 20. 
 
 20. When plaintiff's, properly limited to the first term. Dana v. Sessions, N. 
 S. vi. 383. 
 
 21. The costs of a defendant incurred in partition at law arrested by a court 
 of equity, will be allowed out of the proceeds of the sale. Ball v. Pi'ddock, N. 
 S. X. 350. 
 
 22. Money paid for copies of deeds to be used on trial may be charged, but 
 not for copies merely used in preparing the case. Ela v. Knox, N. S. v. 699. 
 
 23. Taxation of, by commissioners, should show items allowed. Morse v. 
 Allen, TS. S. V. 699. 
 
 24. Whether allowed to a party to the distribution of money in court, is mat- 
 ter of discretion for the court. Borough of Easton's Appeal., N. S. iv. 311. 
 
 25. A party is not entitled to the costs of recovering a judgment in error, in 
 fact. Marshall v. Jackson, 0. S. iii. 639. 
 
 26. Costs imposed on prosecutor. Court may grant new trial. Gaffij v. 
 Commonwealth, O. S. ii. 182. 
 
 27. Objection to taxation of costs must in all cases be first made before the 
 taxing officer. Hawkins et al. v. Northwestern Railway Co., N. S. xiii. 647. 
 
 28. On granting continuance it is within the discretion of the Circuit Court to 
 require as a condition tlie payment of a gross sum as costs. Id. 
 
 29. Attorney may proceed to recover costs of suit, notwithstanding settlement 
 of suit by the parties. Easquin v. Stage Co., 0. S. ix. 696. 
 
 COUNSEL AND COUNSEL FEES. 
 
 1. Party is liable for services of senior counsel. Brigham v. Foster, N. S. 
 iii. 698. 
 
 2. How fees may be estimated in special cases. Frost v. Belmont, N. S. iii. 
 374. 
 
 3. A promise by a client to pay money to a counsel for his advocacy, whether 
 made before, or during, or after the litigation, has no binding effect. Kennedy 
 v. Broun and Wife, N. S. ii. 357. 
 
 4. The relation of counsel and client renders the parties mutually incapable 
 of making any legal contract of hiring and service concerning advocacy and 
 litigation. Id. 
 
 5. A barrister became the advocate of the female defendant, and during the 
 continuation of the litigation she made repeated requests to him for exertions as 
 such, and repeatedly promised to remunerate him for the same ; and after the end 
 of the litigation she spoke of the amount of this remuneration, and admitted the 
 amount of deV>t due for such remuneration to be a certain sum, and promised to 
 pftv it : Held, that these facts did not constitute any obligation on the part of 
 the defendant to pay. Id. 
 
294 COUNSEL AND COUNSEL FEES— COUNTY. 
 
 6. Are recoyerable upon a bond for payment of costs and damages. Corcoran 
 T. Judson, N. S. ii. 251. • 
 
 7. Admitting for the sake of argument that the allegation of a mistake of 
 the law would give jurisdiction to a court of equity in a common case, and he a 
 ground for relief ; yet the court will not listen to the allegation that a member 
 of the bar has made such a mistake. It can hardly be successfully averred even 
 by the party whose counsel he would confess has made it. Magniac v. Thomson, 
 O. S. ii. 700. 
 
 8. Although, perhaps in aggravated cases of appeal, where the judgment of 
 the district court in admiralty is afiBrmed, the court might add by way of taxable 
 costs a sum for counsel fees in this court, yet such an allowance is not favored. 
 Involving the exercise of discretionary power, it is a dangerous jurisdiction and 
 one disliked. And in the present case, although this court had decided that the 
 libellee was to blame, yet it refused an application to make him pay fees to the 
 libellant's counsel. The Margaret v. The Conestoga, 0. S. ii. 701. 
 
 9. There is no doubt of the pOAVcr of the court where a fund is within its con- 
 trol, to take care of the rights of the solicitors who have claims against it, 
 whether for their costs, technically speaking, or their reasonable counsel fees. 
 Such persons are regarded as meritorious assignees of a part interest. £x parte 
 PUtt, 0. S. ii. 701. 
 
 10. How far communications to counsel are privileged. See Eyidencb, 314. 
 
 COUNTER CLAIM. 
 
 1. Equitable, may be set off against one purely legal. Railroad Co. v. Rail- 
 road Co., N. S. vii. 186. 
 
 2. A set-off can properly be pleaded only where the parties are the same and 
 the debts mutual. Hurdle v. Banner, O. S. vii. 58. 
 
 COUNTERFEITING. 
 
 Passing a counterfeit note is an offence for which an indictment will lie in 
 state court under the laws of the state. Jett v. Commonwealth, N. S. vii. 260. 
 
 COUNTS. 
 
 1. New counts relate to the commencement of the suit. Dana v. MeClure, N. 
 S. vi. 564. 
 
 2. New counts must be for the same cause of action. Id. 
 COUNTY. 
 
 1. When bonds issued by, for subscription to railroads, bind. Countu \. Par- 
 ker, N. S. V. 506. 
 
 2 . Is a quasi corporation — when responsible for neglect of duties. Reardon v. 
 St. Louis Co., N. S. V. 444. 
 
 3. A county is not liable for medical services rendered to prisoners in the 
 county jail. Roberts v. County Commissioners, N. S. xii. 121. 
 
 4. Removal of county seat on conditions— submission thereof to electors. 
 People V. Russellf/N. S. vi. 315. 
 
 5. New county cannot be created with a single town. People v. Mavnard. N. 
 S. vi. 634. -^ " ' 
 
 6. In Iowa, a county has no power to borrow money or subscribe for railroad 
 stock. Stokes v. County of Scott, O. S. ix. 458. 
 
 7. Powers and liabilities of counties fully discussed. M. 
 
 8. Courts may issue mandamus to county officer to lew tax to pay county 
 bonds. Riggs v. Johnson ^ Co., N. S. vii. 572. .. ■ j 
 
 9. A county collector of revenue who compulsorily collects taxes is liable for 
 amount. State v. ShacUelt, N. S. v. 664. 
 
 10. J^ndamus is the only adequate remedy for a municipal bondholder against 
 public officers, in case those officers refuse to assess and collect the tax to meet 
 the interest on said bond, when the law requires them to do so. Commonwealth 
 V. Commissioners of Allegheny County, 0. S. vii. 92. 
 
 11. A merely formal departure from the act of the legislature in framing the 
 bond will not make it void. Maddox v. Graham, 0. S. vii. 747. 
 
 12. The bridges belonging to a county arc public property, held for public 
 use, and are not within the constitutional provision which forbids private property 
 from being taken ibr public use. Freeholders, ^c, v. Turnpike Co., N. S. vii. 
 
 13. County bonds issued under eighth chapter of New York Laws of 1804, for 
 
COUNTY— COURTS. 295 
 
 the purpose of paying bounties to young recruits, are valid. People ex rel. Rose 
 V. Supervisors of Livingston, N. S. v. 60. 
 
 pai'/' /rf'"^ '^''^' '"' '''* P^y™*"' of such county bonds are to be assessed and 
 15. County officer defined— who are not. County v. Parker N. S v 506 
 16 A county is not liable for damages resulting from vacation of a road where 
 
 It IS done by the commissioners. Commissioners of Coffey Co. v. Venard N. S. 
 
 X.tla 300. 
 
 O ^S Iv^'t'os''"'"" '° ™'''°'"^ "°'''' ''^" ^^^ ^''■'■'"'<i Co. V. MusHngum County, 
 COUNTY COMMISSIONERS. 
 
 1. Facts certified by, are not traversable on certiorari. Mendon v. Commis- 
 sioners of Worcester, N. S. ii. 445. 
 
 2. Nor will their proceedings be reversed for technical inaccuracy. Id. 
 COUPONS. 
 
 1. Suit may be brought on coupons detached from the bond. Citii v. Lamson 
 N. S. ix. 577. ' 
 
 2. When owner can sue on, without bonds. Thomson v. Lee Co., N. S. vii. 571 . 
 
 3. Municipal corporation coupons are prima facie evidence that the holder is 
 also the holder of the bond from which they are cut, or else was so when thev 
 were separated. McCoy v. County of Washington, O. S. vii. 193. 
 
 4. Coupons on interest-warrants, no legal validity independent of the bond 
 Clark V. City, O. S. iv. 591. 
 
 5. The issue of coupon-bonds was authorized by the Act of 1864. McCoy v. 
 County of Washington, O. S. vii. 193. 
 
 6. Coupon detached from bond is still lien under the mortgage. Miller v 
 Baihoad Co., N. S. vii. 762. 
 
 7. Coupon is part of mortgage-debt, and holder is entitled to share. Id. 
 
 8. Coupon-bonds payable to bearer are negotiable securities. Thomson v. Lee 
 Co., N. S. V. 571. 
 
 9. It requires the same time to bar a suit upon as it does on a bond. Lexing- 
 ton V. Butler, N. S. xii. 125. 
 
 10. Warrants or coupons draw interest after payment of them has been re- 
 fused. Aurora v. West, N. S. viii. 250. 
 
 11. When the town issues bonds to which coupons are attached that the town 
 is indebted to bearer, it may be sued on the coupon alone. Town of Queensbury 
 V. Culver, N. S. xiii. 652. 
 
 COUPON-BONDS. 
 
 Title to pass by delivery. Canal Co. v. Fisher, 0. S. v. 62. 
 
 COUPON-TICKETS. See Tickets. 
 
 COURTS. 
 I. Op Courts in Geneeal, and heeein or the Pkovince or the Couet 
 
 AND OP THE JUET. 
 
 1. The judicial system of Scotland — leading article upon. N. S. viii. 257. 
 
 2. The English judicial system — leading article upon. N. S. viii. 65. 
 
 3 The judicial system of France — leading article upon. N. S. viii. 705. 
 
 4. Forensic and legislative debate in America, as compared with England and 
 France — leading article upon. N. S. viii. 385. 
 
 5. An unfounded assumption by the legislature, that a particular jurisdiction 
 existed, is not sufficient to create it, unless provision is made for, its exercise. 
 Staler. Miller, N. S. ix. 124. 
 
 6. A question which is pending in one court of competent jurisdiction cannot 
 be raised and agitated in another by adding a new party and raising a new ques- 
 tion as to him, along with the old one, as to the former party. Memphis Co. v. 
 Memphis, N. S. ix. 57. 
 
 7. An order of attachment, issued by the clerk of the court, on an insufficient 
 affidavit, is in effect coram non judice, and therefore void, for the want of juris- 
 diction. Amsinck v. Harris, N. S. vi. 100. 
 
 8. Where such an order is dismisseil, or vacated by the court, the rule appli- 
 cable to other judicial proceedings, where courts will not take jurisdiction, applies. 
 Id. 
 
 9. Therefore, the dismissal of the order does not prevent a subsequent arrest 
 
296 COURTS. 
 
 for the same cause of action ; the maxim " bis vrxari" does not apply. A pro- 
 ceeding instituted where no jurisdiction exists, being void, it cannot be held to 
 forbid another proceeding, neither as a bar nor in abatement. Amsinck v. Harris, 
 N. S. vi. 100. 
 
 10. Defendant must be notified of pendency of suit, to give jurisdiction. Rail- 
 road Co. V. Weeks, N. S. vi. 188. 
 
 11. The acts of a court are valid and binding when once legally opened, until 
 it adjourns sine die, or the term expires by law . Urtion Pacific Railroad v. 
 Hand, N. S. x. 472. 
 
 12. During the progress of a cause the court has entire control of the proceed- 
 ings, and may correct mistakes in the docket entries. Nesbiit v. Logan, N. S. 
 x. 474. 
 
 13. Mere change in the form of process, to make it conform to requirements 
 instituted by a code, does not put an end to an action begun before the adoption 
 of the code, nor make it a different action. Id. 
 
 14. A statute directing a court to determine a case " at the next term," does 
 not prohibit such court to determine it after the expiration of the term, if the 
 words of the statute are affirmative only. Such a statute is merely directory, 
 and negative words are necessary to oust the jurisdiction of the court when it has 
 once attached. Stevenson v. Lawrence, N. S. ii.' 409. 
 
 15. A tribunal provided by a statute on a general subject has exclusive juris- 
 diction, unless the contrary is clear from the act. Macklot v. Davenport, N. S. 
 iv. 442. 
 
 16. Whenever the evidence is not legally sufficient to warrant a recovery, it is 
 the duty of the court to instruct the jury accordingly. But if there be evidence 
 from which the jury may draw an inference in tlie matter, the case ought not to 
 be taken from them. Schuchardt v. Allen, N. S. iv. 54. 
 
 17. Have no power to compel the legislature to execute a trust of municipal 
 not fiducial character. Supervisors v. Burchell, N. S.iii. 631. 
 
 18. Judgment of aforeign court conclusive on the merits. Lazier v. Westcott, 
 N. S. iii. 501. 
 
 19. Courts will take judicial notice of the existence and authority of officers 
 of a colonial government without certification by the imperial authorities. Id. 
 
 20. A transaction valid by the decisions of the court at the time, will not be 
 invalidated by the court's subsequent overruling of its decisions. Gelpcke v. 
 Dubuque, N. S. iii. 629. 
 
 21. Where a statute authorizes any person in possession of real property, to 
 institute a suit against one who claims an adverse interest therein, the judgment 
 of a court in such suit is conclusive on title of both parties. Lessee of Parrish 
 V. Ferris, N. S. iii. 54. 
 
 22. Finding of facts by Supreme Court of New York and review by the Court 
 of Appeals. Phelps v. McDonald, N. S. iii. 500. 
 
 23. Judgment of Oyer and Terminer— review in Court of Appeals— how the 
 writ of error should be addressed. Hartung v. People, N. S. iii. 500. 
 
 24. If a court has no jurisdiction there is no trial. Loeb v. Mathis, N. S. xii. 
 670. 
 
 25. An objection to the, jurisdiction is not waived by failing to demur or an- 
 swer. Id. 
 
 26. A court having no clerk or recording officer is not a " court of record " 
 within the meaning of the United States statute of April 14th 1802, and has no 
 jurisdiction in naturalization. Stati v. Whiltemore, N. S. xi. 268. 
 
 27. The court first taking jurisdiction will retain it where the jurisdiction is 
 concurrent. Trowbridge -i. Rawson, Adm'r, N. S. ix. 511. 
 
 28. In general, all courts of record, whether of special and inferior or of gen- 
 eral jurisdiction, can modify or set aside entries of their own action made during 
 the term, but that does not involve the right to refuse to enter or set aside a law- 
 ful verdict. Kountze Bros. v. Express Co., N. S. ix. 200. 
 
 29. Courts of inferior and limited jurisdiction have no power to set aside the 
 verdict of juries found in their courts and to grant new trials, in the absence of 
 authority by statute or long usage. Bartling v. Jamison, N. S. ix. 200. 
 
 30. A citizen of New Hampshire brought an action in the Supreme Court of 
 that state against a corporation created by the legislature of the state of Connec- 
 ticut, and having its principal place of husiness in the latter state. A trial was 
 had before a jury, who returned a verdict for the plaintiff. Exceptions taken to 
 
COURTS. 297 
 
 certain rulings of the court by the defendants wore transferred to the full bench, 
 nnd overruled, and judgment was rendered for the plaintiff on the verdict. Tho 
 defendants then sued out a writ of review, nnd at the September Term 1874, filed 
 n petition for the removal of said action to the Circuit Court of the United States 
 for the district of New Hampshire. Held, that under the 3d clause of sect. 639 
 of the Revised Statutes of the United States, providini; for the removal of a cause 
 from a state court to the Circuit Court of the United States, upon petition filed 
 " at any time before the trial or final hearing of the cause," such a petition can- 
 not be filed after one trial has been had by the parties, although the action is one 
 where review will lie. Wkittier v. Harlford Fire Ins. Co., N. S. xiv, 621. 
 
 31. An action brought by a citizen of New Hampshire against another citizen 
 of the same state, as principal defendant, and a corporation organized under a 
 charter granted by the legislature of another state, and having its principal place 
 of business in such other state, as trustee, in a court of New Hampshire, cannot 
 be removed as to such trustee, to the Circuit Court of the United States for the 
 district of New Hampshire upon the petition of such corporation. Weeks v. 
 Billings, N. S. xiv. 739. 
 
 32. Section 639 of the Ke vised Statutes of the United States does not apply to 
 such an action. Id. 
 
 33. In August 1872, the plaintiff, a citizen of Now Hampshire, commenced a 
 Buit against the defendants, a Vermont corporation, which was entered at tho 
 September Term of the Supreme Judicial Court. In March 1874, the plaintiff, 
 in good faith, removed to and became a citizen of Vermont. At the September 
 Term 1874, the defendants filed a petition, &c., for the removal of the cause to 
 the Circuit Court of tlie United States for New Hampshire under the Act of 
 March 1867. Held, that, inasmuch as both parties were citizens of the same 
 state at the time the petition was commenced, there was no right then in exist- 
 ence under the Constitution of the United States upon which jurisdiction in tho 
 Federal court could be based, and the petition must therefore be denied. Laird 
 V. Railroad, N. S. xiv. 743. 
 
 34. The judgment of the Criminal Court of Baltimore on an appeal from 
 the commissioners for opening streets is final and conclusive. Rundle v. BalLi- 
 more, N. S. viii. 313. 
 
 35. In legal contemplation the jurisdiction of the courts of Pennsylvania is 
 foreign to the jurisdiction of those of Maryland. Seevers v. dement, N. S. viii. 314. 
 
 36. At the common law the rule is well established, that the pendency of a 
 prior suit in personam in a foreign court, between the same parties, for the same 
 cause of action, is no sufficient cause for stay or bar of a suit instituted in ono 
 of our own courts. It is only the definitive judgment on the merits that will bo 
 considered conclusive. Id. 
 
 37. The Act of February 28th 1839, providing for the transfer of cases from 
 one circuit court to another, is not repealed by the Act of March 3d 1863. Su- 
 pervisors v. Rogers, N. 8, viii. 439. 
 
 Si. A county court has the power within certain limits to revise its judgments. 
 Snvth V. Howard, N. S. viii. 507. 
 
 39. Parol evidence is not admissible to show the commencement of a term of 
 court. Hemminwai/ v. Davis, N. S. xiv. 51. 
 
 40. The court will be presumed to have commenced at 10 o'clock the first day 
 of the term. Id. 
 
 41. Notwithstanding the issue of execution tho case is pending, and unless 
 otherwise regulated by statute the execution is still under the control of the court. 
 Chapin V. James, N. S. xiv. 214. 
 
 42. As between courts of co-ordinate jurisdiction, the tribunal first acquiring 
 jurisdiction retains it. Id. ...... 
 
 43. The court may, at its discretion, permit witnesses to testify m chief, on 
 the part of the prosecution, whose names have not been furnished to the prisoner 
 prior to his arraignment. Gates v. People, 0. S. ii. 671. 
 
 44. The affidavit for an application to remove a case in which a corporation is 
 a party may be made bv an agent or employee. Vankirk v. Pennsylvania Rail- 
 road Co., N. S. xiv. 462. ,„,,.. . . , .u 
 
 45. If the petitioner has tho right of removal and files his petition and then 
 filei a copy of the record in the Federal court, the act of removal is completo, 
 nnd the only iurisdiction to restore the case to the state court is in the lederal 
 court upon motion. Osgood v. C. D. %■ V. Railroad, N. S. xiv. 506. 
 
298; COURTS., 
 
 46. To authorize a removal the cause must be actually pending for trial at 
 time of application. Vanneoar v. Bryant, N. S. xiv. 463. 
 
 47. Under the Act of Congress of March .3d 1875, the Circuit Courts have 
 jurisdiction of actions between citizens of different states, without regard to the 
 fact that one party may be a citizen of the state where the suit is brought ; and 
 under this act such cases may be removed from a state court even by a defendant 
 who is sued in a court of his own state. Osgood v. Chicago, D. %■ V. Railroad, 
 N. S. xiv. 506. 
 
 48. Where there are several defendants, only part of whom ask for the re- 
 moval of a cause to a Federal court, the right to such removal depends on the 
 fact whether or not there is a controversy wholly between the plaintiff and the 
 defendants asking for the removal, and which can be fully determined as between 
 them. Id. 
 
 49. It is not coriipetent for the Circuit Court to determine an issue of fact, 
 Avithout an agreement to waive a trial by jury. Morgan's Executor v. Gay, N. S. 
 xiii. 655. 
 
 50. The Act of March 2d 1867, for removal of cases from state to a Federal 
 court, only authorizes such removal before final judgment. Stevenson v. Williamsj 
 N. S. xiii. 715. 
 
 51. Act of Congress of 1864, imposing stamp duty on judicial process of 
 State, unconstitutional. Note to Hughes v. Litsey, commenting on Jones v. Es- 
 tate of Keep, N. S. V. 161. 
 
 52. It is a preliminary for court whether agency sufficiently proved to admit 
 agents' acts and declarations in evidence. C'liquot's Champagne, N. S. v. 507. 
 
 53. Courts must administer the law as they find it, and not supply defects in 
 legislation. Perkins v. City of Watertoum, N. S. xii. 777. 
 
 54. Power of courts to review the action of executive of a state. Note to 
 People v. Auditor,, ^-c, N. S. iii. 343. 
 
 55. A court of equity has power to take charge of the property of a foreign 
 corporation. Murray v. Vanderbilt, N. S. ii. 765. 
 
 56. Omission of a fact necessary to be proved, to confer jurisdiction, makes 
 proceedings void. Merry, Adm'r, v. Sweet, N. S, v. 127. 
 
 57. If plaintiffs' evidence has no tendency whatever to prove issue, court may 
 determine case as matter of law. Boland v. Railroad Co., N. S. v. 447. 
 
 58. Court of merely concurrent jurisdiction cannot disturb possession of United 
 States marshal. Buck v. Colbalh, N. S. v. 566. 
 
 59. In what cases and under wliat process an officer will and will not be pro- 
 tected. Jd, 
 
 60 Extent of rule, that among courts of concurrent jurisdiction, one first ob- 
 taining jurisdiction has exclusive right to decide it. Id. 
 
 61. Jurisdiction of Vermont county court in matter of damages. Clark v. 
 Crosby, N. S. v, 317. 
 
 II. JcRisDiOTioN OP Civil Courts in Religious Controversies. 
 
 62. Civil court will interfere with churches or religious associations when 
 rights of property or civil rights are involved, but where there is no other right 
 involved than the clerical oflBce, the decision of an ecclesiastical court as to its 
 own jurisdiction under the canons of the association, is conclusive. Chase \ 
 Cheney, N. S. x. 295. 
 
 63. The right to preach the gospel to all who choose to listen is free to everv 
 citizen, but the right to preach it as a clergyman of an organized church with 
 established doctrines and forms of worship, is limited by the will of the church, 
 and when a minister enters a church he becomes bound bv the rules and subject 
 to the authority of the ecclesiastical government of the church. Id. 
 
 64. By the canons of the Episcopal cliurch, when a presentment against a 
 presbyter for non-conformity is made in due form and citation is issued and 
 served, the ecclesiastical court has jurisdiction to proceed to determine the cause. 
 Id. 
 
 _ 65. The recital by the bishop in the commission that he acted on " credible 
 information " does not affect the regularity of the proceedings. The canon re- 
 quires the bishop to appoint three persons to examine and make presentment, and 
 such appointment need not be in writing. Id. 
 
 66. The presentment isthe substantial foundation of the proceedings, and its 
 sufiiciency cannot be inquired into by a civil court. Id. 
 
COUETS. 299 
 
 6". Even if the sufficiency of the presentment could be inquired into by a civil 
 court, it is not to be tested by the strict rules of criminal pleading, and sufficient 
 certainty to enable the accused to know the nature and substance of the charge 
 is all that can be required. Chase v. Chewy, N. S. x. 295. 
 
 68. The civil courts ought to take cognisance of the case so far as to ascertain 
 whether the ecclesiastical court is constituted in accordance with tlie canons of 
 the church. By joining the church, which is a voluntary organization, ttie pres- 
 byter agrees to submit to the jurisdiction of a tribunal organized in accordance 
 with the canons, but he has not agreed to submit to any other, and if a court 
 improperly constituted assumes to try him for an offence which may involve loss 
 of his ecclesiastical office, he has a right to invoke the protection of the civil 
 courts of the state. Id. 
 
 69. Pending an action relating to church property, the Louisville Chancery 
 Court put the church into the possession of the marshal and made a decree, from 
 which an appeal was taken. The Court of Appeals reversed the decree and re- 
 mitted the record, with a mandate to the chancery to carry the opinion into effect. 
 After this mandate had been filed in the chancery, but before it had been entered 
 of record or any final order to carry it into efl^ect had been made, suit was com- 
 menced in the United States Circuit Court to obtain possession of the same church 
 by other members who had acquired a domicil in another state. Seld, 
 
 (1.) That the intent with which the domicil was acquired was immaterial. 
 
 (2.) That the first suit was still pending in the Chancery when the bill was 
 filed in the Circuit Court, and therefore the latter court could not acquire juris- 
 diction. 
 
 (3.) That even if the suit in the Circuit Court involved new issues between 
 new parties, the court could acquire no jurisdiction while the property was in the 
 custody of the Chancery Court. Fidton v. Farley, N. S. ix. 401. 
 
 70. Of inferior courts on points necessary to give jurisdiction. Colton v. 
 Beardsley, N. S. ii. 560. 
 
 71. There is no inherent jurisdiction in a court of justice to grant alimony. 
 Bowman v. Worthington, N. S. vi. 621. 
 
 72. A proceeding to condemn property under an Act of Congress is a "suit 
 of a civil nature at common law or in equity," within the meaning of the Judi- 
 ciary Act. United States v. Bloch, N. S. xiii. 124. 
 
 73. The construction of that clause of the Act of Congress cannot be limited 
 to such suits as were known at the time of its passage. The grant of power is 
 prospective. Id. 
 
 74. The clause was used in contradistinction to admiralty and criminal eases. 
 Id. 
 
 75. State courts cannot impair contract valid according to law when made, by 
 a subsequent different construction. Havemei/er v. Iowa Cd., N. S. v. 566. 
 
 III. Or THE Judges of the Coukts. 
 
 76. Allowance of a leading question is at the discretion of the judge. Black 
 T. Railroad Co., N. S. v. 573. 
 
 77. Congress has power to prohibit state judges from interfering with enlist- 
 ments with habeas corpus. Matter of O'Connor, N. S. vii. 60. 
 
 78. Judgment by a tribunal under the authority of a rebel state government, 
 void. Note to Hughes T. Litsey, commenting on Filkins v. Hawkins, N. B. v. 
 160. 
 
 IV. Op the United States Courts. 
 
 79. A court of the United States ought never to sit with its doors of entrance 
 closed, so as to prevent publicity in its proceedings. But its police must be 
 maintained. Where the court has not prescribed any general rule, or made any 
 special or particular order on the subject, the specific duty of the marshal to 
 maintain and regulate its police according to law is an incident of his general 
 duty to attend the court. When, during the pendency of, a particular proceed- 
 ing, there is reason to believe that an unrestricted admission of persons of a 
 known class, or association, would endanger the security of the administration 
 of justice, or in any manner prevent the police of the court from being properly 
 maintained, the marshal, without excluding absolutely such persons as a class, 
 mav adopt prudential measures to prevent their indiscriminate admission, regu- 
 lating the exercise of his discretion, so that their exclusion is not carried beyond 
 the exigencv of the particular occasion. Untied Stales v. Buck, Q. S. viii. 540. 
 
 80. The United States courts, therefore, will take cognisance of a bill for par- 
 
300 COURTS. 
 
 tition of such lands and disregard the previous judgment. CiiyUr v. F^rill, N. 
 S. viii. 100. 
 
 81. Where the clerk refuses under such an order to certify the record to the 
 United States court, the latter will, on motion, allow the record and proceedings 
 to be supplied by copies or affidavits, and the cause to proceed as if the record had 
 been duly certified. Akerbj v. VUas, JT. S. viii. 229. 
 
 82. Semble, that the limitations from citizenship imposed on the jurisdiction of 
 United States courts do not apply to ancillary bills in equity or petitions to pro- 
 tect the rights of those interested in property in the custody of the court. Cha- 
 pin V. James^ N. S. xiv. 214. 
 
 83. The United States provisional court for the state of Louisiana, organized 
 under an order of the president, was authorized to exercise the jurisdiction con- 
 ferred by that order. Law v. WaUerstein, N. S. ix, 293. 
 
 84. The Federal courts have jurisdiction and power to issne the writ of man- 
 damus to a municipal corporation to compel it to perform its duty, although such 
 duty is created and enjoined by state law alone. United States ex rel. Learned v. 
 Burlington, N. S. ii. 394. 
 
 8.5. Supreme Court of United States cannot give judgment on a case stated 
 unless facts only are stated. Burr v. Desmoines Co., N. S. iv. 54. 
 
 86. The courts of the United States, while sitting within the limits of a state, 
 are governed by the rules of evidence of such state. Mi/an v. Bindley, N. S. iv. 
 54. 
 
 87. Error will lie from the Supreme Court of the United States to the highest 
 court of a state : — 
 
 (1.) Where a statute of the United States is technically in issue in the plead- 
 ings, or is relied on in them, and is decided against by rulings asked for and 
 refused, even though the case may have been disposed of generally by the court 
 on other grounds. State of Minnesota v. Bachelder, N. S. iv. 55. 
 
 (2.) Where a statute of a state creates a contract, and a subsequent statute is 
 alleged to impair the obligation of that contract, and the highest court in the 
 state construes the first statute in such a manner as that the second statute does 
 not impair it, whereby the second statute remains valid under the Constitution 
 of the United States. Bridge Proprietors v. Soboken Co., N. S. iv. 55. 
 
 88. An appellant from the highest court of a state to the Supreme Court of 
 the United States, under the provision that " where is drawn in question the con- 
 struction of any clause of the constitution, or of a statute of the United States, 
 and the decision is against the title," right, &o., so set up, need not set forth 
 specially the clause of the Constitution of the United States on which he relies. 
 Id, 
 
 89. The Supreme Court of the United States has no power to review by cer- 
 tiorari the proceedings of a military commission ordered by a general officer of 
 the United States army commanding a military department. Ex parte Vallan- 
 digham, N. S. iv. 55. 
 
 90. Jurisdiction having attached is not taken away by subsequent reduction of 
 the sum m controversy. Cooke v. United States, N. S. iv. 505. 
 
 91. Have the United States courts a common-law criminal jurisdiction » sub- 
 ject discussed. N. S. vi. 129. 
 
 92. What record must show, in a case removed from a state court under 
 Judiciary Act, to Supreme Court of United States. Railroad Co. v. Rock N S 
 vi. 444. ' ■ ■ 
 
 93. Jurisdiction of United States Supreme Court in such case Id 
 
 94. United States Supreme Court cannot re-examine judgment" in Circuit 
 Court, just equalling the sum of $2000. Walker v. United States, N. S. vi 445 
 
 95^ Removal of cause into United States Circuit Court under Act of Congress 
 of 1789. Ai/resv. Railroad, N. S. vi. 719. 
 
 96. Action by one foreign corporation against another cannot be removed Id 
 
 citfzen of"ther;att k'°" " '" ""'^"^ °'' " '""'"''' "^'"■P'"""'"' ^^»'° '^ " 
 
 dLt^v .ir ^l"^ "" Act of Congress, on the groun.l that such act will 
 
 destioy the corporate existence of the state. This is a political not a iudicial 
 
 question. Georgia v. Stanton, N. S. vii. 441. ' juuiciat 
 
 99 May issue mandamus to county officer to levy tax to pav rountv bonds 
 
COURTS. 301 
 
 100. May enjoin citizens from proceeding in court of another state. Vail v. 
 Knapp, N. S. vii. 509. 
 
 101. The passing of counterfeit treasury notes may be an offence against the 
 "United States and also against an individual state. United States v. Wells, N. 
 S. xi, 424. 
 
 102. In such case there would be concurrent jurisdiction in the Federal and 
 state courts to take cognisance of the offence, and the judgment of one would 
 not be pleadable, either in abatement or in bar of an indictment in the other. Id. 
 
 103. But the rule of comity between courts of concurrent jurisdiction, that 
 the one first acquiring jurisdiction of the case will not be interfered witli 
 during the pendency of the proceedings, applies to criminal as well as civil 
 actions. Id. 
 
 104. Therefore, where a United States marshal, charged with the arrest of a 
 counterfeiter, found him in the custody of a state sheriff on an indictment for the 
 same offence, his duty was to make return of that fact and leave the prisoner in 
 the sheriff's custody; but the marshal having taken the prisoner out of the 
 sheriff's hand, and the prisoner on indictment in the Federal court having 
 pleaded the proceedings of the state court in abatement, the Federal court sus- 
 tained the indictment, but remanded the prisoner to the custody of the state au- 
 thorities. Id. 
 
 105. The Circuit Courts of the United States have no jurisdiction of an action 
 in which a state is plaintiff. Wisconsin v. Duluth, N. S. xi. 709. 
 
 106. By the Constitution of the United States, the Supreme Court has original 
 jurisdiction in such cases, and no concurrent jurisdiction has been conferred by 
 Congress on the Circuit Courts. Id. 
 
 107. Whether Congress could confer a concurrent jurisdiction in such cases 
 on the Circuit Court:. Qucsre. Id. 
 
 108. Sales of mortgaged premises under a decree of foreclosure and sale are 
 usually made in the Federal courts by the marshal of the district where the de- 
 cree was entered or by a master appointed by the court, as directed in the decree. 
 Blossom V. Railroad Co., N. S. v. 218. 
 
 109. When suit in state court against marshal of United States for official 
 acts, may be taken up on error. Buck v. Colbath, N. S. v. 566. 
 
 110. Supreme Court .will not give an answer to a merely abstract proposition. 
 Uavemei/er v. Iowa Co.-, N. S. v. 566. 
 
 111. United States District Court has no power to issue habeas corpus, when 
 the prisoner is in jail upon charge of murder preferred against him by a state 
 court. Note to Hughes v. Litsei/, commenting on Ex parte McCann, N. S. v. 158. 
 
 112. Act of Congress,' 24th January 1865, prescribing oath before admission 
 to bar of United States courts, unconstitutional. Note to Hughes v. Litsey, com- 
 menting on the matter of John Baxter, N. S. v. 159. 
 
 113. Congress did not intend by the general words used to extend jurisdiction 
 to remove, except under the circumstance specified in the act. Id. 
 
 114. The Circuit Courts of the United States have jurisdiction of a bill to en- 
 join the executors of a will, which has been admitted to probate by the county 
 court of a state, from using it to defeat the rights of a citizen of another state. 
 Amory v. Amoryet at, N. S. xii. 585. 
 
 115. The Supreme Court of the United States will not necessarily follow the 
 latest decisions of state courts on the law of their own states. Gelpcke v. L>u- 
 huquc, N. S. iii. 629. 
 
 116. Power of the Supreme Court of the United States to revise the proceed- 
 ings of the Circuit Court, is confined to the questions stated in the certificate. 
 Ward et al. v. Chamberlain ct al., N. S. iii. 53. 
 
 117. Judgments of the courts of the United States are liens in all cases where 
 those of state courts in similar cases are. Id. 
 
 1 18. The Federal courts have no jurisdiction under tlie 25th section of the Ju- 
 diciary Act, of a suit for real estate, where the issue turns solely upon the per- 
 sonal identity of the claimants. Carpenter v. Williams, N. S. ix. 519. 
 
 119. Th6 restriction of the 11th section of the Judiciary Act, giving original 
 jurisdiction to the Circuit Courts, does not apply to cases where either party be- 
 lieves that from local influence he will not he able to obtain justice in a state 
 court. City of Lexington v. Butler, N. S. xii. 127. 
 
 120. Suits on negotiable paper are not within the exception to the 11th section 
 of the Judiciary Act. Id, 
 
302 €OURTS- 
 
 121. Federal courts, where they have jiurisdiction, will enforce the same rules 
 in the adjustment of claims against ancillary executors as local courts would in 
 favor of their citizens. Walker v. Wdlker's Executors, N. S. ix 448. 
 
 122. The Circuit Court of the United States has jurisdiction of a common-law 
 or equity action brought by an assignee in bankruptcy appointed in another dis- 
 trict where such assignee is a citizen of another state, and the defendant is a 
 citizen of the state where the action is brought, and the amount in dispute ex- 
 ceeds the sum of $500. Payson v. Dietz, N. S. xii. 511. 
 
 123. The Circuit Court oif the United States, in the exercise of its appellate 
 jurisdiction, may, by the writs of habeas corpus and certiorari, examine the de- 
 cision of the same court acting in its original jurisdiction. Ex parte Yerger, N. 
 S. ix. 57. , . . . 
 
 124. Courts of the United States are not bound to give instructions upon 
 specific requests by counsel for them. Wills v. Smith, N. S. ix. 59. 
 
 V. JuRisDioTinN IN Bankruptcy. 
 
 125. Jurisdiction of the state and Federal courts as aflfeoted by the Bankruptcy 
 Act, considered. Payson t. Dietz, N. S. xii. 511. 
 
 126. The United States courts have not jurisdiction to restrain a sheriflf from 
 selling under an execution from a state court. Buggies v. Simonton, N. S. xii. 461. 
 
 127. Where an adjudication of bankruptcy of a partnership firm is made by 
 the District Court, and is brought into the Circuit Court for review, under section 
 2 of the Bankrupt Act, the jurisdiction of the Circuit Court is revisory only, and 
 does not extend beyond a review of questions presented to the District Court. 
 Any orders or proceedings to carry into execution the orders or decrees ol' the 
 District Court, must be made by that court. United States v. Superior Court, N. 
 S. ix. 297. 
 
 128. Therefore, a suit by one of the bankrupt partners against the other, in a 
 state court, seeking an account, and the appointment of a receiver, is not such 
 an interference with the jurisdiction of the Circuit Court as would authorize it to 
 issue a writ of prohibition. Jd, 
 
 129. Jurisdiction of United States Circuit and District ddurts in bankruptcy — 
 subject discussed. N. S. vii. 641. 
 
 130. Congress must have intended to provide for the complete administration 
 of the. bankrupt system ; there is no authority given to Circuit Courts to enter- 
 tain such suits. Goodall, Assignee, v. Tuttle, K. S. xiii. 192. 
 
 VI. Of the State Courts. 
 
 131. A state court has no jurisdiction to grant a mandamus to compel a judge 
 of a district court to try an action which has been transferred to the Circuit Court 
 of the United States. Francisco v. Manhattan Ins. Co., N. S. viii. 698. 
 
 132. The. abolishing by states of the distinction between law and equity will 
 not change the practice of the United States courts. Thompson v. Bailrocd Co., 
 N. S. vii. 314. 
 
 133. Passing a counterfeit note of a national bank is an offence for which an 
 indictment will lie in a state court under the laws of the state. JM v. Common- 
 wealth, N. S. vii. 260. 
 
 134. There is nothing in the relations of the state and Federal courts, or in the 
 nature of the jurisdiction itself, which makes the jurisdiction of the United States 
 courts to punish the act of passing counterfeit national bank notes, necessarily 
 exclusive, nor is it made so by Act of Congress. Id. 
 
 135. An action by an assignee to set aside a conveyance as a fraud on the 
 Bankrupt Act, cannot be entertained by a state court. Gilbert v. Priest, N. S. 
 xiii. 62. 
 
 136. State courts have concurrent jurisdiction with the United States courts 
 of only such actions as arise incidentally from Acts of Congress. Id. 
 
 137. The acts for which a state court may set aside a conveyance are such as 
 are malum in se. Id. 
 
 138. If a conveyance is fraudulent against creditors, the courts of New York 
 have jurisdiction to declare it void. Id. 
 
 139. When the political authorities of a state have actually claimed and exer- 
 cised jurisdiction over a particular locality, the courts of the state are thereby 
 concluded, and will respect such decision, and act accordingly, without ques- 
 tioning the validity of such claim. State v. Wagner, N. S. xiii. 106. 
 
 140. The prisoner was not wronged by the instructions given in this case that 
 proof that the crime was committed on the island called Smuttv Nose, is equiva- 
 
COURTS. 303 
 
 lent to proof that it was committed within the county of York, nnd wonM make 
 the crime properly cognisable by the court sitting in that county. That instruc- 
 tion was correct. State v. Wagner, N. S. xiii. 106. 
 
 141. Where there has been a possession of the res acquired by the state court 
 in consequence of the main issue, the removal of the latter carries with it the 
 possession of the res to the Federal court, notwithstanding there may be collateral 
 issues raised which may remain in the state court. Osgood v. C. Sr A. Railroad 
 N. S. xiv. 506. ' 
 
 142. Whether such collateral issues do remain in the state court or are removed 
 by the removal of the main controversy, not decided. Id. 
 
 143. A petition for removal, under the Act of IST.'j, may he filed in vacation, 
 and it is not required that the state court should take any action upon it or upon 
 the bond. Id. 
 
 144. Where a court has given judgment which has been reversed by the Su- 
 preme Court of the state, and judgment entered in effect ordering a venire de novo, 
 the cause has not reached final hearing or trial, and a motion to remove to a 
 United States court is in time. Ackerly t. Vilas, N. S. viii. 229. 
 
 145. Where special powers are given by statute to a court, all the requisites 
 of the statute must be strictly complied with to render the proceedings valid. 
 Cockey v. Cole, N. S. viii. 248. 
 
 146. An action in the state courts may he removed into the courts of the United 
 States, under the Act of Congress of 1867, c. 196, at any nime before the final 
 trial in such action ; and a trial before the jury and failure to agree upon a ver- 
 dict, is not to be regarded as such >i final trial. Clark v. Railway Co., N. S. 
 xiii. 421. 
 
 147. During the late war the courts of South Carolina had no jurisdiction over 
 parties residing in Maryland, though suit had been commenced by the parties re- 
 siding in Maryland before the war. Livingston v. Jordan, N. S. x. 53. 
 
 148. The Circuit Court of Illinois will take judicial notice of its officers whose 
 names are attached to an official jurat without official designation. Dyer v. Last, 
 N. S. ix. 714. 
 
 149. Where the plaintiff and some of the defendants are citizens of the same 
 state, a cause cannot be removed under the Act of March 2d 1867. Vennevar v. 
 Bryant, N. S. xiv. 463, 
 
 150. An action cannot be removed from a state court into the Circuit Court 
 of the United States under the Act of Congress of 1867, u. 196, after a trial on 
 the merits, although such trial has resulted in a disagreement of the jury. Galpin 
 V. CritchloiB, N. S. xiii. 139. 
 
 151. A state court of Georgia, during the late war, had no jurisdiction to decree 
 partition of lands in that state while one of the joint owners was a citizen and 
 resident in one of the other states adhering to the Union. Cdyler v. Ferrill, N. 
 S. viii. 100. 
 
 152. An order of an inferior state court under the Act of Congress for the 
 removal of a cause to a United States court, is reviewable by the Supreme Court 
 of the state, and an appeal to such Supreme Court suspends the vesting of juris- 
 diction of the case in the United States court until the determination of the appeal. 
 Akerly v. Vilas, N. S. viii. 558. 
 
 153. The judgments, decrees and judicial proceedings in the courts of Alabama 
 during the war, are valid, except where they conflict with the Constitution and 
 laws of the United States. Hill, Adm'r, v. Huckabee, N. S. xiv. 393. 
 
 154. Offences "not capital or otherwise infamous," may, by leave of court 
 upon complaint on oath, be prosecuted in the Federal courts by criminal informa- 
 tion. United States v. Maxwell, N. S. xiv. 433. 
 
 155. A purchaser at a judicial sale under the judgment of a state court, who 
 has paid only in Confederate notes, cannot be regarded as a bonS, fide purchaser. 
 Cuyler v. Ferril,, N. S. viii. 100. 
 
 156. Where the state court goes on to adjudicate the case after removal, it is 
 a usurpation, and resistance by the party against whom judgment is rendered, 
 is no waiver of his right to contest the jurisdiction of the state coui-t. Insurance 
 Co. V. Dunn, N. S. xiii. 716. 
 
 157. State laws adopted by Congress become obligatory on the Federal courts. 
 Perkins v. City of Watertown, N. S. xii. 777. 
 
 158. When legislature adopt or re-enact a statute, the construction as settled 
 by the courts is also adopted. Frink v. Pond, N. S. v. 704. 
 
 ' 159. After a state court has made an order under the Act of Congress for the 
 
304 COUKTS. 
 
 removal of a cause to a United States court, any further proceedings in the state 
 court or in anv other state court by appeal or other process, are void. Akerly v. 
 Vilas, N. S. viii. 229. 
 
 160. A state court making an order for the removal of a cause to a United 
 States court, has no jurisdiction to allow an appeal from such order and to en- 
 join its clerk from certifying the record pending the appeal. Id. 
 
 161. When state will not discharge one convicted of crime, though writ of 
 error has been issued by Supreme Court of United States. Fleming v. Clark, 
 N. S. vi. 438. 
 
 162. When a state court decides against a right or immunity, set up under a 
 judgment of the United States court, a case is presented for removal to the 
 Supreme Court under the Act of February 5th 1867. Dupasseur v. Rochereau, 
 N. S. xiv. 527. 
 
 163. Decree in Supreme Court of the United States, dismissing bill in equity, 
 though by a divided court, is a bar to suit in state court. Durant v. Essex Co., 
 N. S. iv. 118. 
 
 164. Where one person is held in custody by another acting under the author- 
 ity of the general government, the state court has no right to inquire into the 
 validity of such authority. In the matter of Spangler, N. S. ii. 598. 
 
 165. Where a draft was made under a law of Congress, by and through gov- 
 ernor of a state and by commissioners appointed by him, state courts have no 
 right to inquire into validity of such authority. Id. 
 
 166. Passing a counterfeit note of a national bank is an offence for which an 
 indictment will lie in a state court, under the laws of the state. Jdt v. Conunon- 
 wealth, N. S. vii. 260. 
 
 167. Suit against United States marshal for wrong levy is not necessarily 
 against him as marshal, and hence not necessarily within the 25th section of the 
 Judiciary Act. Day v. Gallup, N. S. iv. 504. 
 
 168. After suit in Federal court is ended a state court may have jurisdiction 
 of the matter, though it could not have had it pending the proceeding. Id. 
 
 169. The Louisville Chancery Court has jurisdiction of torts, but the amount 
 of damages must be settled by a jury. Lucas v. Bruce, N. S. iv. 95. 
 
 170. Where, on a return to a writ of habeas corpus, a state court is judicially 
 apprised that the party is in custody under the authority of the United States, 
 such court can proceed no further. The prisoner is then within the dominion 
 and exclusive jurisdiction of the United States. In re Jordan, N. S. ii. 749. 
 
 171. Under the second section of chapter 25 of the laws of Congress of 1862, 
 it is declared that " hereafter no persen under the age of eighteen years shall be 
 mustered into the United States service, and the oath of enlistment taken by the 
 recruit shall be conclusive as to his age." The prisoner having been mustered 
 into the United States service, and having, at the time of enlistment, made a 
 declaration under oath that he was twenty-one years of age, and these facts 
 having been stated in the return to the writ of habeas corpus by the party claim- 
 ing to hold him in custody under color of the authoritv of the United States : 
 Held, that the state judge was "judicially apprised " that the prisoner was in 
 custody under the authority of the United States, and that he was ousted of his 
 jurisdiction. Id. 
 
 172. The case of Ableman v. Booth, 21 How. U. S. 506, approved and fol- 
 lowed. Id. 
 
 173. The Supreme Court of Pennsylvania has jurisdiction to review and cor- 
 rect the proceedings of inferior courts, except where it is expressly excluded by 
 statute, or in a case stated by the parties, wherein they agree to submit their dis- 
 putes to auditors or referees, without expressly reserving their right to a writ of 
 error. Chase v. Miller, N. S. ii. 146. 
 
 174. This court has jurisdiction of a contested election, on certiorari, where it 
 appears from the record that no facts were in dispute ; hence the rulings of the 
 court below upon questions of law purely are reviewable here. Id. 
 
 175. This court is as much bound to'take cognisance of questions involving 
 the constitutionality of the election laws, even though they mav be raised in a 
 contested election, as they are to pass upon the constitutionality of an Act of 
 Assembly relating to any other subject, as long as the legislature does not take 
 away that jurisdiction. Id. 
 
 176. The 155th section of the Act of 2d Julv 1839, giving to the courts of 
 Ciuarter bessions the same powers that are conferred on committees of the legis- 
 
COURTS. 305 
 
 latnre, to compel the attendance of witnesses and tlie production of papers in 
 contested elections, is only a grant of power for tiie specific purposes named, 
 and does not make tiie decision of the court below, like that of the legislature, 
 final and conclusive. Chase v. Miller, N. S. ii. 146. 
 
 177. Bills of exceptions are not allowed in the courts of Quarter Sessions, 
 therefore no question which arises outside of the record can be reviewed by this 
 court. Id, 
 
 178. The county courts of different states bounded by a river, have concurrent 
 jurisdiction of crimes committed on the river opposite to such counties. Carlisle 
 T. The State, N. S. x. 64. 
 
 179. The courts of the several states are foreign courts as to each other. 
 Smith et al. v. Lathrop et al., N. S. iii. 107. 
 
 180. State courts have no power to issue a writ of habeas corpus, or to con- 
 tinue proceedings under it when issued, in cases of commitment or detainer under 
 the authority of the United States. Matter of Uopson, N. S. iii. 189. 
 
 181. A controversy in which no right is claimed under the Constitution or 
 laws of the United States is exclusively within the jurisdiction of the state courts. 
 Congdon et al. v. Goodman, N. S. iii. 54. 
 
 182. The legal presumption is in favor of the jurisdiction of a court of record 
 of another state, which has assumed to exercise it. Buffum v. Stimpson, N. S. 
 iii. 64. 
 
 183. Where bonds and coupons made in Ohio are payable in New York, the 
 courts of New York will have jurisdiction of an action on the bonds, though 
 both parties are foreign corporations. Connecticut Ins. Co. v. Cleveland, ^c, 
 Railroad Co., N. S. iii. 443. 
 
 184. The decree or judgment of a state court can be avoided on the ground of 
 fraud, both in the courts of the United States and of another state. Amory v. 
 Amor^, N. S. xii. .58.5. 
 
 185. The legislature of a state cannot deprive a citizen of another state of his 
 legal or equitable rights under the Constitution and the laws of Congress, by 
 declaring in what courts they must be enforced. Id. 
 
 186. On a common-law certiorari, the Supreme Court of New York is not re- 
 stricted to the inquiry, whether the court below exceeded its jurisdiction. People 
 ex rel. Martin v. Commissioners of Pilots, N. S. ix. 121. 
 
 187. The United States courts have not jurisdiction to restrain a sheriff from 
 selling under an execution from a state court. Ruggles v. Simonion, N. S. xii. 
 461. 
 
 188. The state court having first obtained jurisdiction, it is exclusive. Id. 
 Vn. Appeals and Removals prom State to National Courts. 
 
 189. The removal of causes from state to Federal courts — subject discussed. 
 N. S. ix. 1. 
 
 190. The record must show by express words, or legal intendment, that one of 
 the questions under the 25th section of the .ludiciary Act was decided by the 
 state court to give the Supreme Court jurisdiction. Gibson v. Chouteau, N. S. 
 ix. 198. 
 
 191. A cause can be removed from a state court into the Supreme Court of 
 the United States, whenever a question arising under the 25th section of the 
 Judiciary Act of 1789 is relied upon. Furman v. Nichol, N. S. ix. 57. 
 
 192. There is no law for the removal to the state courts of causes cognisable 
 in the District or Circuit Courts of the United States. McCollom v. Pipe, N. S. 
 X. 542. 
 
 193. Where the record of a suit at the time it is removed from a state to a 
 Federal court under the Act of 1789, shows the matter in dispute to exceed $500, 
 » subsequent reduction of the demand by the plaintiff in his pleadings will not. 
 entitle him to have the case remanded. Roberts v. Nelson, N, S. x. 115. 
 
 194. Nor will the fact that the suit, as developed by the pleadings subsequent 
 to the removal, includes a claim not cognisable in a Federal court, entitle it to 
 be remanded. The jurisdiction of the Federal court having once attached, no 
 subsequent event can divest it. Id. 
 
 195. In August 1870 an action was commenced in the Supreme Court of New 
 York by summons, commanding defendant to appear or have judgment entered 
 against him for §330, with interest from July 1st 1858. Before any other steps 
 were taken the defendant appeared and filed a petition to have the case removed 
 to the United States Circuit Court on the ground that he was a citizen of Min- 
 
 20 
 
306 COUKTS. 
 
 nesota. The state ''.ourt crmitpil the petition and the cause was removed. Plain- 
 tiff then filed his declaration in the Circuit Court showing a claim for $187.25, 
 with interest from January Ist 1859, and also another claim for |43.25, as 
 assignee of one Pierce, a citizen of New Jersey, and thereupon moved to remand 
 the case to the New York court. Held, that the cause could not be remanded. 
 Roberts v. Nelson, N. S. x. 115. 
 
 196. To take a case to the Supreme Court of the United States on the ground 
 that the state court refused to give full faith and credit to the judicial record of 
 another state, it is necessary that the record should show that it was authenticated 
 in the mode prescribed by the Act of May 26th 1790. Caperton v. Ballard, N. 
 S. xii. 198. 
 
 197. The power of the Circuit Court of the United States to issue a writ of 
 prohibition to another court is confined to cases where the issuing of such a writ 
 is necessary for the exercise of its own jurisdiction, and is agreeable to the prin- 
 ciples and usage of law. United States v. Superior Court, N. 8. ix. 297, 
 
 198. The Act of February 22d 1848, transferring to the District Courts of the 
 United States cases of a Federal character begun in territorial courts of certain 
 territories then admitted to the Union, is to be construed so as to transfer the 
 cases into the District Courts, if on admission the state did not form part of <i 
 judicial circuit ; but if it did, then into the Circuit Court. Kountz Bros. v. Ex- 
 press Co., N. S. ix. 200. 
 
 199. Whether in any case the Circuit Court has power to issue a writ of pro- 
 hibition to a state court, dubitatur. United States v. Superior Court, N. S. ix. 
 297. 
 
 200. The Act of April 20th 1871 does not authorize the removal of a case 
 from the state courts in every case in which the United States courts would have 
 original jurisdiction. Gnughan v. Fertilizing Co., N. S. xii. 569. 
 
 201. An action was commenced in the Supreme Court of New York by A., a 
 resident of that state, against B., a foreign corporation located in Massachusetts. 
 The cause of action was a breach of implied contract, in neglecting to protest 
 certain drafts forwarded to B. by C, a banking corporation located in the state 
 of Ohio. The cause of action was assigned by the Ohio bank to the plaintiff. 
 The action was commenced by summons; whicli was served by publication, and 
 a warrant of attachment was afterwards issued by which the defendants' property 
 in New York was attached under the provisions of^ the code of procedure appli- 
 cable to foreign corporations. The defendants entered an appearance in the 
 state court, and obtained an order removing the case to the United States Circuit 
 Court under the 11th section of the Judiciary Act of 1789. On an application 
 to remand the case to the state court for want of jurisdiction : Held, that the 
 state proceeding is substantially one of foreign attachment, and that it is a " suit " 
 within the meaning of the Uth section. Barney v. Globe Bank, N. S, ii. 221. 
 
 202. The validity of the removal is to be tested" by the 12th section. The ob- 
 jection that the defendant is not an inhabitant nor found in the district at the 
 time of serving the writ, cannot avail the plaintiff in a case where the defendant 
 has appeared in the state court and removed the cause to a Circuit Court of the 
 United States. There is no distinction in principle between the case where the 
 defendant, having removed the cause to the Circuit Court, moves to have it 
 remanded for want of jurisdiction (Sayles v. North Western Ins. Co., 2 Curtis 
 C. C. 212), and the case where a plaintiff makes a similar application. Id. 
 
 203. A corporation is a " citizen " within the meaning of both these sections. 
 Id. 
 
 204. That clause of the 11th section which provides that no District or Circuit' 
 Court " shall have cognisance of any suit to recover the contents of any promis- 
 sory note or other chose in action in favor of an assignee, unless a suit might 
 have been prosecuted in such court to recover said contents if no such assignment 
 had been made," has no application to a case like the present. This is not a suit 
 to recover the " contents " of a chose in action within the meaning of the act. 
 Only those choses in action are included within the term " contents " which are 
 founded on a contract containing within itself some promise or duty to be per- 
 formed. When the suit is founded on a mere right of action to recover damages 
 imposed by law for a delinquency, the clause has no application, and the assignee 
 may bring an action in this court if the other conditions required by the Judiciary 
 Act exist. Id. 
 
 205. The attachment issued under the state process will hold the goods attached 
 
COURTS. 307 
 
 until the final judgment in this court. The words " original process," as used 
 in the 12th section, include any mesne process issuing out of the state court by 
 which the property is seized before the case is removed into this court. Barneti 
 V. Globe Bank, N. S. ii. 221. 
 
 VIII. CoNODRREHT Jurisdiction op National and State Courts. 
 
 206. There is nothing in the relations of the state .<ind Federal courts, or in 
 the nature of the jurisdiction itself, which makes the jurisdiction of the United 
 States courts to punish the act of passing counterfeit national banlc notes neces- 
 sarily exclusive, nor is it made so by Act of Congress. Jott v. Commonwealth, 
 N. S. vii. 260. 
 
 207. The concurrent jurisdiction of the national and state courts considered 
 and discussed. Id. 
 
 208. The Supreme Court of New Hampshire has orisinal concurrent jurisdic- 
 tion in all criminal cases where a magistrate has. State v. Eunnals, N. S. xi. 
 329. 
 
 209. Fact that it is out of jurisdiction of court is no objection to court malcing 
 decree, where parties are citizens and appear regularly. Wood v. Warner, N. 
 S. vi. 570. 
 
 210. Each house of the legislatore sole judge of election of its own members ; 
 courts must accept its decisions. People v. Mahoneij, N. S. v. 250. 
 
 211. As between state courts and United States courts, neither can enjoin the 
 process of the other. Chapin v. James, N. S. xiv. 214. 
 
 212. State courts cannot by subsequent and contrary construction render con- 
 tract invalid good at time of execution. Thomson v. Lee Co., N. S. v. 571. 
 
 213. The Supreme Court will not entertain jurisdiction of cases brought from 
 state courts where it appears that, beside the Federal question, there is another 
 ground to sustain the judgment. Kennebec Railroad Co. v. Portland Railroad 
 Co., N. S. xii. 120. 
 
 214. The Circuit Courts of the United States are not constituted to review and 
 reverse the proceedings of state courts. Amori/ v. Amori/, N. S. xii. 38. 
 
 215. Jurisdiction of United States courts not exclusive in all cases of mari- 
 time torts. Trevor v. Steamboat Hine, N. S. iv. 436. 
 
 216. One trial may be conclusive by state laws, and this will bind United 
 States courts. Miles v. Caldwell, N. S. iv. 510. 
 
 217. Congress has power to authorize Federal courts to condemn property. 
 United States v. Block, N. S. xiii. 124. 
 
 218. Proceedings instituted by the secretary of the treasury are on the part of 
 the United States. Id. 
 
 219. Enlargements of equitable rights may be administered by the Circuit 
 Courts of United States as well as by the state courts. Case of Broderich's Will, 
 N. S. xir. 523. 
 
 IX. Op the Court of Claims. 
 
 220. In the adjudication of cases under the Captured or Abandoned Property 
 Act, the Court of Claims is a court, not a mere commission, and has jurisdiction 
 to render judgment against the United States for specific amounts, which cannot 
 he reviewed by the executive oflacers of the government. Brown v. United States, 
 N. S. xi. 172. 
 
 221. A claimant under the above-named Act obtained a decree of the Court 
 of Claims in his favor for a certain sum ; afterward the secretary of the treasury 
 reduced the amount, and paying part, refused to pay the balance — whereupon 
 claimant brought suit against the United States for the balance : Held, that he 
 might recover. Id. 
 
 222. Actions against the government and public officers, discussed by Nott, 
 J. Id. 
 
 223. In the Court of Claims the government is liable for refusing to receive 
 and pay for what it has agreed to purchase. Gibbons v. United States, N. S. ix. 
 199. 
 
 224. The statute does not confer jurisdiction on the Court of Claims of losses 
 incurred by individuals from the torts of officers of the government. Id. 
 
 225. Appeals from, to Supreme Court United States— Act of Congress, author- 
 izing, considered, N. S. v. 111. 
 
 226. In the Court of Claims a party cannot testify in his own behalf. Jones v. 
 United States, N. S. v. 353. 
 
 227. The jurisdiction of the Court of Claims stated and reviewed. Id. 
 
308 COURTS— COVENANT. 
 
 X. Powers or the Supreme Coukt. 
 
 228. It is not essential that the jurisdiction of a superior court should affirma- 
 tively appear in the judgment roll ; if it does not, and the contrary does not 
 therein affirmatively' appear, jurisdiction will be conclusively presumed. Hahn 
 V. Kdley If Morse, N. S. viii. 122. 
 
 229. The Supreme Court has jurisdiction by writ of error over judgment of 
 state court, where the writ is to highest court in which a decision could be had, 
 even though it be an inferior court of the state. Miller v. Joseph, N. S. xiii. 335. 
 
 230. In the construction of the statutes of a state, the Supreme Court follows 
 the decisions of the state courts, wliatever may be their opinion. Walker v. State 
 Harbor Commissioners, N. S, xiii. 335. 
 
 231. The Act of Congress provides for the removal of a cause before trial if 
 an action at law, or before final hearing if a suit in equity, and after a judgment 
 in the inferior court, it is too late to remove the cause, although the judgment 
 may be reversed by the Supreme Court of the state, and a new trial or hearing 
 ordered. Id. 
 
 232. The Supreme Court of a state has no power to enjoin the United States 
 marshal from proceeding to a sale on execution, although the property levied on 
 is that of a stockholder in a corporation against which judgment and process of 
 execution issued ; the execution being levied by direction of attorneys thereon 
 endorsed to enforce the stockholder's liability under the Rhode Island statute 
 regulating manufacturing corporations. Chapin v. James, N. S. xiv. 214. 
 
 233. Where a case is submitted in the Circuit Court without a jury, under the 
 Act of Congress of March 3d 1865, the Supreme Court will not review the finding, 
 if it is general. Cooper, Executor, v. Omohundro, N. S. xiii. 654. 
 
 234. A mere report of the evidence is not such a special finding as will au- 
 thorize the Supreme Court to pass upon the judgment of the Circuit Court. 
 Crews V. Brewer, N. S. xiii. 655. 
 
 235. In such case the Supreme Court will inquire whether due validity has 
 been accorded to the judgment of the Federal court, and if not, reverse the judg- 
 ment. Dupasseury. Rochereau, N. S. xiv. 527. 
 
 236. The Supreme Court of the United States cannot acquire jurisdiction of a 
 cause through an order of a circuit court. The Alicia, N. S. viii. 446. 
 
 237. Supreme Courts of United States cannot entertain appeals from the 
 Court of Claims. Gordon v. United States, N. S. v. iii. 500. 
 
 238. The Supreme Court of the United States has no power to review by cer- 
 tiorari the proceedings of a military commission. Ex parte Vallandigham, N. S. 
 iv. 55. 
 
 239. In order to give the Supreme Court of the United States jurisdiction, the 
 assignment of error must be made specific. Edwards 'v. Elliott, N. S. xiv. 518. 
 
 240. Supreme Court has no power to reverse a fine imposed by a Circuit Court 
 for comtempt. New Orleans y. Steamship Co., N. S. xiv. 317. 
 
 241. The courts of United States have power to issue writs of habeas corpus 
 for the release of prisoners imprisoned by and under the sentence of a state 
 coHrt. Brown v. United States, N. S. xi. 564. 
 
 242. The Supreme Court will declare a law unconstitutional only when it ap- 
 pears clearly inconsistent with the provisions of the instrument. Morrison v. 
 Springer, N. S. iii. 276. 
 
 COVENANT. 
 
 1. Cannot be implied in a contract drawn technically in form, and with obvi- 
 ous attention to details. Eudson Canal Co. v. Pennsylvania Coat Co., N. S. ix. 
 192. 
 
 2. Covenant creating easement runs with the land. Norfieet y. Cromwell, N. 
 S. ix. 446. 
 
 3. Covenants are the proper mode of creating such servitudes as consist in acts 
 to be done by the owner of the servient land. Id. 
 
 4. Licensee of mineral rights covenants to pay for damage to lands, this cov- 
 enant binds his assignee. Norval v. Pascoe, N. S. iv. 310. 
 
 5. Not implied by designation of ground in a plan referred to in a deed. Light 
 y. Goddard, N. S. vi. 185. 
 
 6. EflFect of want of notice of an existing suit against the principal, whero 
 covenant one of general indemnity against claims and suits. Insurance Co. v. 
 Wilson, N. S. vi. 127. 
 
COVENANT. 309 
 
 7. A covenantee vouched to defend against an adverse title, may vouch his 
 grantor to defend in the same suit. Chamberlain v. Preble, N. S. vi. 128. 
 
 8. One duly vouched, but not appearing, to defend title, will be bound by re- 
 sult. Id, 
 
 9. No covenant can be implied in conveyance of real estate in New York. 
 Sandford v. Travers, N. S. ii. 566. 
 
 10. Covenant by executors against their own acts does not contain a covenant 
 as to the estate of their testator. Id. 
 
 1 1 . Covenant running with land — whatever be the doctrine at law with regard 
 to covenants or agreement effecting the same, one purchasing real estate with 
 notice of a covenant will be restrained in equity from a violation thereof. Coles 
 T. Sims, 0. S. iii. 123. 
 
 12. Where a trust estate is sold in plots for building, with restrictive cove- 
 nants, each purchaser has an equity against the other to enforce the covenavits. 
 Eastwood V. Lever, N. S. Iii. 693. 
 
 13. Such equity may bo lost by acquiescence. Id. 
 
 14. Parties to suit to enforce such equity. Id. 
 
 15. To use a house as dwelling only. Wilkinson v. Sogers, N. S. iii. 692. 
 
 16. Breach of such covenant. Id, 
 
 17. Not to let house as a hotel. Jay v. Richardson, N. S. iii. 692. 
 
 18. To bequeath money not satisfied by a bequest in will. Graham v. Wick- 
 ham, N. S. iii. 628. 
 
 19. Nor by appointment under a power to appoint to children. Id. 
 
 20. Equity will enforce a covenant made with a vendee, that in case of sub- 
 sequent conveyances by the vendor the purchasers shall be restricted in building, 
 though there is no privity between the parties and such covenant creates no ease- 
 ment. Kirkpalrick v. Peshine, N. S. xiii. 54. 
 
 21. Nor will it refuse to restrain a. violation of the agreement because the in- 
 convenience is only slight. Id. 
 
 22. Covenant for rent will not lie against lessee where lease is by deed-poll, 
 signed only by lessor. Johnson v. Muzzy, N. S. xiii. 55. 
 
 23. A covenant in a, lease to pay the yearly rent of six pence sterling per 
 acre, in current money of the state of New York equal in value to money of 
 Great Britain, does not bind the lessee expressly to pay in gold or silver. Stran- 
 aghan v. Youmans^ N. S. xiii. 255. 
 
 24. Under such a covenant the lessor is bound to accept the notes of the United 
 States, but the lessee must pay enough to make the number of dollars paid equal 
 in value to the same number in money of Great Britain. Id. 
 
 25. The rent may be paid dollar for dollar in gold and silver coin of the 
 United States. Id. 
 
 26. A covenant that grantee, his heirs and assigns, shall maintain a fence on 
 line between his land and grantor's, will not, when the land is subdivided, run 
 with lots that do not abut on the line. Wcdsh v. Barton, N. S. xiii. 647. 
 
 27. Where one having no title to land conveys it with covenant of warranty 
 and subsequently acquires title it enures to his grantee. Cross v. Martin, N. S. 
 xiii. 775. 
 
 28. Parties in successive deeds of a chain of title of the same name are pre- 
 sumptively the same persons. Id. 
 
 29. Deed from G. of H. to G. Jr. of H. is presumed from father to son. Id. 
 
 30. The usual covenants inserted in a conveyance. Wilson v. Wood, N. S. 
 V. 64. 
 
 31. The covenant of seisin is broken as soon as the deed is executed if the 
 title is bad. Dale v. Shively, N. S. xi. 271. 
 
 32. At common law the heir was liable on the covenant of his ancestor. Hall 
 V. Martin, N. S. vi. 757. 
 
 33. Covenant to keep in repair, broken by bad condition of flues. Myers v. 
 Burns, N. S. vi. 380. 
 
 34. The consideration of love and affection is sufficient to uphold a cgvenant 
 to stand seised to uses. Thompson v. Thompson, N. S. vi. 26. 
 
 35. Where tenants in common lay out a lot as a street and covenant not to 
 build within eight feet of it, each acquires a negative easement in the lands of 
 all. Green v. Creighton, N. S. ii. 382. 
 
 36. The alienee of the grantee may maintain covenant against the alienee of 
 the grantor of ground-rent. Springer v. Phillips, N. S. xii. 788. 
 
310 COVEXANT. 
 
 37. A covenant to pay principal of rent after two years does not lapse by fail- 
 ure to demand it, and the rent becomes irredeemable. Sprinyer v. Phillips, M. S. 
 xii. 7S8. 
 
 38. Covenant in mortgage to keep the premises insured for the benefit of mcrt- 
 gagee is valid against assignee in bankruptcy as a lien on insurance money. In 
 re Sands Ale Brewing Co., N. S. xiii. 193. 
 
 39. Covenant to pay rent for coal taken out, and to take coal out in certain 
 quantity. Powell v. iBurroughs,'S. S. vii. 315. 
 
 40. Early English laws concerning covenant. Note to Block v. Isham, N. S. 
 vii. 10. 
 
 41. The child of an heir apparent, whose mother dies before her ancestor, 
 will not be estopped by covenants of warranty of her mother. Moore v. Littel, 
 N. S. iii. 144. 
 
 42. Thedoctrineof estoppel by covenants of warranty discussed. Id. Note, 149. 
 4 3. Covenant may be released for one purpose, but not for all. Ledger v. Stan- 
 ton, N. S. iii. 691. 
 
 44. A covenant by a husband for maintenance of wife will be enforced. 
 Walker v. Walker, N. S. iii. 448. 
 
 45. Covenants by vendor and vendee are to be construed as dependent or in- 
 dependent. Robinson v. Harbour, N. S. ix. 355. 
 
 46. Where a covenant goes as part of the consideration on both sides, it is an 
 independent covenant. Id. 
 
 47. Where the vendee covenants to pay the same by instalments. Id. 
 
 48. A general covenant to repair premises by the tenant, is binding under all 
 circumstances. Polack v. Pioche, N. S. viii. .508. 
 
 49. Where covenants are mutual and dependent, performance or an offer to 
 perform on the one part is a condition precedent to the right to insist upon per- 
 formance on the other part. Hill v. Grigsbi/, N. S. viii. 511. 
 
 50. A court of equity cannot strike out part of the covenants of a deed. 
 Marble Co. v. Ripley, N. S. x. 197. 
 
 51. Where a covenant against encumbrances is broken in the lifetime of the 
 covenantee, the administrator must sue for damages. Frink v. Bellis, N. S. i. 
 671. 
 
 52. Acceptance by grantee of deed with covenant as to manner of building. 
 Dock Co. V. Leavitt, N. S. vii. 636. 
 
 53. Covenant not to erect distillery broten by erection of machinery and 
 building. Id. 
 
 54. A covenant not to sne on an obligation for a limited time after maturity, 
 cannot be pleaded in bar of a suit within the time. Irons v. WoodJilL N. S. x. 
 64. 
 
 55. The general covenant to warrant and defend includes the covenant for 
 quiet enjoyment, and is only broken by actual eviction. Rindskopf v. Farmers' 
 Loan Co., N. S. x. 277. 
 
 56. Courts of equity will not turn independent covenants into conditional, 
 because it will diminish litigation. Coursen v. Canfield, N. S. x. 279. 
 
 57. A covenant in a deed "that it is expressly understood that the houses 
 which may be erected on Gill)ert street shall be set back ten feet," runs with the 
 land, and in equity may be enforced by a purchaser. Winfield v. Hennina, N. S. 
 X. 346. " 
 
 58. A covenant to pay taxes on another's land, and one to make up any 
 deficiency in its sale below a certain sum, are independent. Eldridge v. Bliss, 
 N. S. x. 472. * 
 
 59. Covenants for title run with the land, enure for the protection of the owner 
 for the. time being, and may be enforced by the heirs, devisees and alienees of 
 the covenantee. Crisjield v. Storr, N. S. xii. 55. 
 
 60. In actions on covenant of warranty it is necessary to prove eviction by title 
 paramount, and a narr. which fails to allege this will be bad on demurrer. Id. 
 
 61. Where an action is brought against the heirs of the covenantor, they are 
 jointly liable, and the verdict should be against them in solido. Id. 
 
 62. Limitations do not begin to run until there is a breach of the covenant of 
 warranty. Id. 
 
 63. A covenantee who has suffered eviction is not bound to seek satisfaction 
 of his claim out of the personal estate of his covenantor, before resorting to his 
 heirs. Id. ' * 
 
COVENANT— CRIMINxVL LAW. 311 
 
 64. An outstanding tax certificate at the date of conveyance is a breach of 
 covenant against encumbrances. Eaton v. Lijman, N. S. xii. 189. 
 
 65. A covenantee is entitled to recover the amount necessary to remove an 
 encumbrance not exceeding the purchase-money of the land. Id. 
 
 66. Proof that the grantee has been evicted does not necessarily show a breach 
 of the covenant of warranty- Id. 
 
 67. An agreement intended to be signed and sealed by two, but only signed 
 and sealed by one, binds the one only. W. Md. Railroad Co. v. Orendorff, N. 
 S. xii. 785. ■" 
 
 CRIMINAL LAW. 
 I, In General. 
 
 1. The case of The State of Kansas v. Boyle, 10 Kansas, with regard to the 
 effect of repeals of statutes, in criminal cases, referred to and followed. State of 
 Kansas v. Crawford, N. S. xiv. 21. 
 
 2. A witness in a capital case is not to be excluded because called by a wrong 
 name. State v. Burke, N. S. xiv. 456. 
 
 3. A general verdict of manslaughter en an indictment containing several 
 counts, will not be set aside because there is one count on which the jury, if there 
 had been no other, could not have found the prisoner guilty. Id. 
 
 4. A negative averment relating to the prisoner personally will be taken as 
 true unless disproved by him. State v. Keggon, N. S. xiv. 456. 
 
 5. Upon an indictment for sale of liquor, alleging affirmatively that the pris- 
 oner was not an agent for the sale of liquor, the state is not bound to prove the 
 averment. Id. 
 
 6. The description " a freedman " in an indictment is mere surplusage and 
 need not be proved. McGce v. State, N. S. xiv. 644. 
 
 7. It is only where an averment is descriptive of the fact or degree of crime 
 or jurisdiction of the court, that it must be proved if immaterial. Id. 
 
 8. Bills of exception are construed most strongly against the party excepting. 
 Id. 
 
 9. It is error in a criminal case to charge, that although the jury may have a 
 reasonable doubt of any single fact in tlie testimony, they cannot acquit unless it 
 is material to the issue joined. Williams v. State, N. S. xiv. 701. 
 
 10. It presents to the jury a question of law. Id. 
 
 11. An indictment charging the commission of an offence which in its nature 
 includes several minor offences, is not for such reasons multifarious. State v. 
 Gorham, N. S. xiv. 701. 
 
 12. A single count may allege all the circumstances necessary to constitute 
 two different crimes. Id. 
 
 13. Goods stolen from a bailee may be described as the property of the bailor 
 or bailee. Id. 
 
 14. Where an indictment is founded upon a statute containing provisos and 
 exceptions, it is unnecessary to allege that the party indicted is not within the 
 exceptions, or to negative the provisos. State v. Cassady, N. S.'xiii. 55. 
 
 15. False explanations, made by an accused person, of suspicious facts, are 
 proper to be submitted to the jury. Walker v. State, N. S. xiii. 454, 
 
 16. I'he refusal of the court, in a criminal case, to charge that the evidence 
 must satisfy the jury beyond a reasonable doubt of every fact necessary to con- 
 stitute the offence, is error. Id. 
 
 17. An examination before a magistrate on a criminal charge is not invali- 
 dated by a continuance to the 22d of February, and after taking testimony on 
 that day being continued to the 23d, although by law the 22d vi&sdiesnonjurtdi- 
 cus, and assimilated to Sunday. Hamilton v. The People, N. S. xiii. 679. 
 
 18. Where counts in a criminal information are misjoined, the court is not 
 bound to quash the information on motion, if the counts relate to one transac- 
 tion, and the court can regulate the evidence by confining it to that transaction 
 and preventing the surprise or confusion of the defendant. Id, 
 
 19. The phrase, the jury in criminal cases are judges of the law as well as the 
 facts, is true so far as that the jury mupt render a general verdict on their con- 
 sciences as to the legal and actual guilt of the accused, and cannot be com- 
 pelleil to separate the law and the facts. But the duty of the jury is the same in 
 kind in criminal as in civil cases, and the fact that an acquittal, whether right or 
 wrong, is not reviewable, does not lessen the duty of the jury to obey the law as 
 
312 CRIMINAL LAW. 
 
 laid down by the judge, without regard to their personal opinions as to what the 
 law is or ought to be. Hamilton v. The People, N. S. xiii. 679. 
 
 20. The discharge of the jury without the consent of the defendant in a 
 criminal cause, is equivalent to a verdict of acquittal. Sines v. State, N. S. 
 xiii. 775. , 
 
 21. One who, participating in the felonious intent, is present aiding or abet- 
 ting a murder or other felony, is a principal. Warden v. State, N. S.xiii. 776. 
 
 22. The actual or constructive presence of the accused is not necessary to con- 
 stitute the offence of aiding or abetting under the 36th section of the Crimes Act 
 of Ohio. Id. 
 
 23. Offences not capital, by leave of court upon complaint on oath, may be 
 prosecuted in Federal court. United States v. Maxwell, N. S. xiv. 433. 
 
 24. Testimony of parties in criminal prosecution — subject discussed. N. S. 
 V. 129, 705. 
 
 25. If the judge acts boni, fide he is not liable criminally, notwithstanding his 
 acts are illegal for want of jurisdiction. United States v. Doss, N. S. xi. 320. 
 
 26. The Supreme Court of New Hampshire has original concurrent jurisdic- 
 tion in all criminal cases where a magistrate has. State v. Runnals, N. S. xi. 329. 
 
 27. The test in insanity is the power or capacity of <i prisoner to distinguish 
 between right and wrong in reference to the particular act in question. Cmnmon- 
 wealth V. Freeth, 0. S. vi. 400. 
 
 28. A building on a marltet garden, used for storing tools, manure and seeds, 
 is not a warehouse within the New Hampshire statute. State v. Wilson, N. S. 
 vii. 252. 
 
 29. Taking several things at one time, only one offence. State v. Cameron, 
 N. S. vii. 831. 
 
 30. Evidence on indictment for. Id. 
 
 31. By the agreement between the states of Pennsylvania and New .Tersey, 
 made in 1783, the judicial investigation and determination of criminal offences 
 committed on the river Delaware are specially provided for. Commonwealth v. 
 Frazee, O. S. v. 167. 
 
 32. The great principle of the trial by jury is, the court shall determine the 
 law, and the jury the facts. Gnffy v. Commonwealth, 0. S. ii. 242. 
 
 33. Where a statute authorizes, but does not compel, a party indicted to become 
 a witness in his own behalf, it is improper for the prosecution to comment to the 
 jury on the prisoner's refusal to offer himself as a witness, and the court should 
 when requested charge that no inference was to be drawn against the prisoner 
 from his refusal. People v. Tyler, N. S. viii. 430. 
 
 34. An accomplice who has given testimony criminating himself as well as 
 his co-defendant, on whose trial he testifies, cannot refuse to answer fully on 
 cross-examination concerning the entire transaction of which he has undertaken 
 to give an account, and in which he had shown himself guilty. Foster v. People, 
 N. S. viii. 494. 
 
 35. It is sufficient if the words used by the defendant are set out in an indict- 
 ment for false pretences. State v. Call, N. S. viii. 570. 
 
 36. Maliciously disturbing a meeting of school directors is indictable at com- 
 mon law. Campbell v. Commonwealth, N. S. viii. 736. 
 
 37 . Where a person in lawful self-defence fires a pistol at an assailant. Morris 
 V. Piatt, N. S. iv. 523. 
 
 38. Upon the high seas every vessel, public and private, is for jurisdictional 
 purposes. People v. Tyler, O. S. viii. 403. 
 
 39. A judge of the United States has power, on just ground of suspicion, to 
 require bond to observe the Neutrality Laws. United States v. Quitman, 0. S. 
 ii. 645. 
 
 40. The former declarations of a witness whose credibility is attackeu may be 
 given in evidence to corroborate his testimony. Gates v. People, O.'S. ii. 671. 
 
 41. Sufficient grounds for requiring bonds to observe the neutrality laws of 
 the United States. United States v. Quittnan, 0. S, ii. 645. 
 
 42. Criminal practitioners, hints to — subject discussed. O. S. vii. 257. ' 
 
 43. What constitutes an arrest fully discussed. Note to Whithead v. Keves, 
 N. S. i. 476. 
 
 44. The return of an officer is primiL facie evidence of tlie truth of the facts 
 therein contained, and is conclusive of their truth as far as tliat action is con- 
 cerned. Whithead v. Keyes, N. S. i. 476. 
 
x 
 
 CRIMINAL LAW. 313 
 
 45. What amounts to a rescue of a prisoner. See Note ii., N. S. i. 47G. 
 
 46. It is a settled rule in Verniont that the jury, in criminal cases, may judge 
 of both law and fact, biit it is rather a political or governmental rule than a 
 legal maxim, and should not prevent the judge from giving his views upon the 
 law of the case in plain and explicit terms to the jury. State v. McDonnell, 0. 
 S. viii. 609. 
 
 47. Maliciously throwing stones, &c., against railway carriage. Reg.y. Court, 
 O. S. ii. 507. 
 
 48. Effect of subsequent refusal to carry out executory agreement to transfer 
 certain drafts — action of fraud and conspiracy. See Bedford v. Sanner, N. S. i. 
 441. 
 
 49. As to commitment of sheriff by coroner. Adams v. Vbse, 0. S. iii. 57. 
 
 50. Burden of proof in criminal cases. Commomoealth v. McKie, O. S. iii. 58. 
 
 51. In assault and battery, burden of proof. Id. 
 
 52. Neglecting to maintain child ; a woman neglecting to provide her infant 
 bastard child with food — it is not enough to show that she might have obtained 
 the means if she had applied to the relieving officer of the union. Reg. v. K^dh, 
 O. S. iii. 639. 
 
 53. Effect of drunkenness at the time of the commission of the act. McCon- 
 ohy V. State, 0. S. iv. 633. 
 
 54. An article upon the elementary principles of. 0. S. iii. 453. 
 
 55. Effect of drunkenness at the time of the commission of the crime. See 
 Reg. V. Moore, 0. S. i. 37. 
 
 56. Trial of the watchman of Eldagsen — history of. 0. S. ix. 1. 
 
 57. The prisoner H. was walking by the side of the prosecutrix and the pris- 
 oner E. was seen just previously following behind her. The prosecutrix felt a 
 tug at her pocket, found her purse gone, and on looking around, saw H. behind 
 her, walking with E., and saw H. hand something to E. The jury were di- 
 rected, that if they did not think, from the evidence, that E. was participating in 
 the actual theft, it was open to them, upon the above fact, to convict him of re- 
 ceiving. The court held that this direction was right. Reg. v. Hilton et al., 0. 
 S. vii. 703. 
 
 58. Although an accessory cannot be tried, he may be indicted before the con- 
 viction or outlawry of the principal ; and, unless it affirmatively appear upon the 
 record of the conviction of an accessory, that the principal has never been con- 
 victed or outlawed, the judgment will not be reversed, as it must be presumed on 
 error, that legal proof of the fact was made before the jury. Holmes v. Com^ 
 monwealth, O. S. iv. 439. 
 
 59. The " statement " of a defendant, on trial for a criminal offence, when he 
 chooses to make one, may be considered by the jury, in view of all the circum- 
 stances which may affect its credit ; nor can he claim any protection from the 
 effect of significant omissions, on the ground that he is not required to criminate 
 himself. Defoe v. People, N. S. xi. 525. 
 
 60. It is sufficient in indictments that the charge be stated witl\ sufficient cer- 
 tainty for the defendant to know what he is called to answer. Commonwealth v. 
 Keman, N. S. xi. 198. 
 
 61. The grand jury may ignore a count, but cannot find less than the whole 
 of any count, fd. 
 
 62. A petit jury may impose costs on a defendant under a defective indictment. 
 Id. 
 
 63. Courts refuse to quash where the indictment is for a serious offence, but 
 compel a demurrer, a motion in arrest of judgment or a writ of error. Id. 
 
 64. Though a jury may find a party indicted for ore offence guilty of a minor 
 one included in it, a magistrate cannot. State v. Runnals, N. S. xi. 329. 
 
 65. The charge as made in the complaint determines the power of the magis- 
 trate to try or only bind over. Id. 
 
 66. Where a magistrate cannot convict, he has no power to acquit. Id. 
 
 67. The stealing of a horse, wagon and harness at one time is one offence, 
 and is not subject to different indictments. State v. Cameron, N S. vii. 831, 
 
 68. Where a complaint before a police court describes an offence, the maximum 
 punishment of which is greater than the court has power to impose, it must bo 
 dismissed. State v. Volhi/, N. S. xi. 330. 
 
 69. Are juries judges of the law as well as of the facts in criminal cases— sub- 
 ject discussed. I^. S, xi. 401. 
 
314. CRIMINAL LAW. 
 
 70. A marriage between a white and a negro is a criminal offence by the laws 
 of Indiana. State v. Gibson, N. S. xii. 319. 
 
 71. When the facts proved on the part of the prosecution show that the re- 
 spondent claimed to do the act resulting in death to the assailant in self-defence, 
 the burden of proof rests from the first upon the prosecutor to show beyond 
 reasonable doubt that the act was criminal. State v. Patterson, N. S. xii. 647. 
 
 72. Where a statute defining an offence contains an exception in the enacting 
 clause, which is so incorporated with the language defining the offence, that the 
 ingredients of the offence cannot be fully set out without negativing the exception, 
 an indictment must allege enough to show that the accused is not witliin the ex- 
 ception. United States v. Cooke, 'N. S. xii. 682. 
 
 73. But if the exception is separable from the language of the enacting clause, 
 and the offence can be fully and accurately defined without reference to it, the iu- 
 dictment is good without such reference. Id. 
 
 74. An indictment charged the accused with the commission, more than two 
 years previously, of certain acts amounting to an offence as defined by an Act of 
 Congress; another act limited prosecutions for this and other offences to two 
 years, unless the accused had been a fugitive from justice. On demurrer the in- 
 dictment was held good, though it did not allege that the accused was within the 
 exception. Id. 
 
 7.T. Magistrate is protected in issuingj if there is colorable evidence. Id. 
 
 76. If person is as well known by the name in the indictment as by the one 
 pleaded, the indictment is good. State v. Dresser, N. S. vii. 445. 
 
 77. Where accused does not testify, though allowed by the laws of the state to 
 do so, this fact cannot be used as an argument against him. State v. Cameron, 
 K. S. vii. 831. 
 
 78. In a criminal case where insanity is set up asa defence, evidence that a 
 brother of the accused has become insane from a cause similar to that which is 
 claimed to liave operated upon the accused, is admissible as having some tendency 
 tt prove the hereditary transmission of insane tendencies. People v. Garbatt, N. 
 S. vii. 5.')4. 
 
 79. In criminal cases the burden of proof rests upon the prosecution to estab- 
 lish all the conditions of guilt ; and it does not shift to the prisoner where insanity 
 is set up as a defence. The jury are to weigh all the evidence, and unless reason- 
 ably satisfied, not only that the prisoner committed the act charged, but also as to 
 his criminal capacity and intent, their duty is to acquit. Id. 
 
 80. It does not follow, however, that the prosecution are required to put in 
 evidence of sanity before the defence has introduced evidence of the contrary con- 
 dition. Sanity being the normal condition of humanity, the prosecution may 
 rest upon the presumption that it exists, niitil evidence to rebut that presumption 
 has been given. Id. 
 
 81. Drunkenness is no legal excuse for the commission of crime. Id. 
 
 82. A variance between the allegation in the indictment and the proof as to 
 where an offence was committed, is not material if both places are within the 
 jurisdiction of the court. Carlisle v. State, N. S. x. 64. 
 
 83. It is not error to charge " that if there is a well reasoned doubt on the 
 whole testimony," good character should protect the prisoner. Remsen v. Peon'e, 
 N. S. X. 126. 
 
 84. A prisoner who puts his general character in issue takes the risk of its 
 being proved bad, Burdich v. People, N. S. x. 276. 
 
 8.^. The neglect to aver facts essential to the description of an offence in an 
 information is fatal. Enders v. People, N. S. x. 473. 
 
 86. A statute which directs that notice of a special criminal term "shall be 
 posted up at the court-house door ten days before its commencement," is direc- 
 tory only, and a person convicted at such term, notice of which was posted only 
 eight days, is not, for that reason, entitled to a new trial. Blynn v. Common- 
 wealth, N. S. X. 577. 
 
 87. Statutes creating crimes will not be extended by judicial interpretation to 
 cases not plainly and unmistakably within their terms. United States v. Clayton, 
 N. S. X. 737. 
 
 88. In statutes creating and defining criminal offences, the courts will not, by 
 construction, engraft words in one section upon those of another, unless the legis- 
 lative intention be plain and clear. Id. 
 
 89. Mere fact that the sheriff has expressed an opinion as to guilt of prisn 
 
CRIMINAL LAW. 315 
 
 oner, not sufficient ground for challenge to the array. Ferris v. People, N. S. 
 vi. 773. 
 
 90. Nor that the court excused 764, out of a panel of 1000 jurors, without 
 cause. Id. 
 
 91. When state court will not discharge one convicted of crime, though writ 
 of error has been issued by Supreme Court of United States. Fleming v. Clark, 
 N. S. vi. 438. 
 
 92. When a writ of error from Supreme Court of United States in a criminal 
 ca.«e will operate as a supersedeas. Bryan v. Bates, N. S. vi. 438. 
 
 93. Discharge of prisoner on habeas corpus, in such case. Jd, 
 
 94. Declarations of one accomplice as evidence against the other. People v. 
 Pitcher, N. S. vi. 634. 
 
 95. Warrant of execution from Supreme Court in New York, when convict 
 not executed according to sentence. Ferris' s Case, N. S. vi. 377. 
 
 96. Informality therein. Id. 
 
 97. How far common law is applied in determining what constitutes a crime. 
 N. S. vi. 65, 129, 321. 
 
 98. Indictment must show a fact necessary to give jurisdiction. Houser v. 
 People, N. S. vi. 119. 
 
 99. Not sufficient to state it in caption. Id. 
 
 100. Omission thereof is defect of substance. Id. 
 
 101. Indictment and commencement of trial, which was subsequently aban- 
 doned, without goin^ to the jury, not a bar to second indictment. Ferris v. Peo- 
 ple, N. S. vi. 773. 
 
 102. It is no ground for setting aside a verdict of guilty, that it was found on 
 the testimony of accomplices. People v. Lawton, N. S. ix. 638. 
 
 103. Under the statutes of Illinois, juries in criminal cases are judges of the 
 law as well as the facts. Adams v. People, N. S. ix. 58. 
 
 104. If a person threatened with danger acts from reasonable and honest 
 convictions, be will not be held responsible for a mistake as to the extent of the 
 danger. Id. 
 
 105. A person cannot provoke a quarrel and then justify killing one in it. 
 Id. 
 
 106. A new trial will not be granted to prove the dying declaration of the 
 deceased that he did not wish the accused hurt. Id. 
 
 107. An arrest by a private individual is excused only where a felony has in 
 fact been committed, and there was reasonable ground to suspect the person ar- 
 rested of its commission. Burns v. Erben, N. S. ix 59. 
 
 108. Where there is no conflict in the evidence as to the circumstances, in ac- 
 tions for false imprisonment and malicious prosecution, the question of probable 
 cause is one of law and not for the jury. Id. 
 
 109. The statute in regard to writs of error in criminal cases only authorize 
 a new trial on reversal of the judgment, where the error is of a character which 
 renders the trial and conviction illegal, so that the prisoner cannot legally be 
 said to have been in jeopardy. Id. 
 
 110. Evidence of the good character of a defendant is always admissible in a 
 criminal case, and when put in, the jury have a right to give it such weight as 
 they think it fairly entitled to. Arbitrary rules for this purpose cannot be laid 
 dov/n for their control. In some cases an unblemished good character may not 
 only raise a doubt as against the clearest case upon the other evidentte, but may 
 even bring conviction of innocence. People v. Garbult, N. S. vii. 554. 
 
 II. Process. 
 
 111. Warrant of arrest need only recite the accusation, not the evidence. 
 Pratt v. Bogardus, 378. 
 
 112. The proper process in a criminal prosecution is a warrant for the body of 
 the defendant. No other process is authorized by law in this state. Indiana v. 
 0. Sr- M- Railroad Co., N. S. iv. 583. 
 
 113. A summons is not a proper process in a criminal prosecution. And the 
 service of a summons, in a criminal prosecution against a body corporate, upon 
 nn ajrent, attorney, or director of the corporation, is not sufficient to compel a 
 corporation to plead. Id. 
 
 114. Distringas, as a mode of compelling an appearance in a criminal case, is 
 a writ unknown to our law. Id, 
 
316 CEIMINAL LAW. 
 
 115. The common law of England, as to crimes and misdemeanors, is not in 
 force in Indiana. Indiana v. 0. ^. M. Railroad Co., N. S. iv. 583. 
 
 116. Acorporation can neither commit a crime or misdemeanor by any positive 
 or afiSrmative act, nor incite others to do so, as a corporation . Id. 
 
 117. Indictment for soliciting persons to enlist out of state. Commonwealth v. 
 Jacobs, N. S. V. 189. 
 
 118. Recruiting without authority under statute of 1863. Id. 
 
 III. Power to dischakge .Idrt. 
 
 119. Unauthorized discharge of jury equivalent to acquittal. McCauley r. State, 
 0. S. iv. 191. 
 
 120. When a juror is withdrawn from the panel at a criminal trial, even by 
 consent, the fact must be noted on record. Commonwealth v. Shaw, 0. S vii. 289. 
 
 121. When discharge of jury is equivalent to a verdict of not guilty. Statev. 
 Walker, N. S. vi. 716. 
 
 122. It is a good cause for discharge, if jury be unable to agree, after ample 
 time given for consultation. Id. 
 
 123. Court justified in discharging jury which bad been out nineteen hours, 
 with no possibility of agreement. Id. 
 
 124. Such discharge of jury does not entitle defendant to discharge, because 
 once in peril. State v. Nelson, N. S. vi. 716, 
 
 IV. Bail. 
 
 125. A person charged with a capital crime may submit evidence before trial, 
 either on motion or on habeas corpus, to show himself entitled, under the consti- 
 tution, to the privilege of bail. Lynch v. People, N. S. iv. 735. 
 
 126. Proper tribunal to decide on bailability, discussed. Id. Note. 
 
 127. Where a man is found guilty of a criminal offence and sentenced to pay 
 a fine, the county commissioners have no power to take bail for the payment there- 
 of, and discharge the prisoner. Schwamble v. Sheriff, O. S. ii. 120. 
 
 128. When the return shows that the accused was arrested on a bench warrant 
 upon an indictment for murder, the "detention " is legal ; in such cases, instead 
 of stating in the petition for habeas corpus that the imprisonment is illegal, it 
 should claim that the prisoner is entitled to bail. Street v. State, N. S. ix. 750. 
 
 129. The jurisdiction of Supreme Court to grant bail in cases brought up on 
 writ of error, is purely revisory and correctional. The judgment below must be 
 regarded as presumptively right till error is shown. Id. 
 
 130. Upon questions of bail, this court approves the rule (laid down in 1 Ash- 
 mead 234, and 19 Ohio 141) , to refuse bail in a case of malicious homicide where 
 the judge would sustain a capital conviction by a jury on evidence of guilt, such 
 as that produced on the application for bail, and to allow bail when the prosecu- 
 tor's evidence was of less efficiency. Id. 
 
 131. Bail is never allowed in capital cases where the proof is evident and 
 the presumption great. In re Bennoit, 1 La. 142, cited and approved. Id. 
 
 V. CoNrESSIONS. 
 
 132. After the fact is known that either the influence of hope or fear existed, 
 superinducing a confession of guilt, explicit warning should be given the prisoner 
 of the consequences of a confession ; and it should likewise be manifest that the 
 prisoner understood such warning before his subsequent confession could be given 
 in evidence. Peter (a slave) v. State, O. S. i. 700. 
 
 133. A policeman ought not, in general, to question prisoners who are in his 
 custody ; but if he does, the interrogation ought not to be confined to questions cal- 
 culated to compromise the party. Per Alderson, B. Reg. v. Stokes, 0. S. i. 
 435. 
 
 134. Confessions made after conversations advising a confession, and not ex- 
 pressly promising to prevent a prosecution, aamissible in evidence. Common- 
 toealth V. Tuckerman, N. S. iii. 184. 
 
 135. Whether confessions of crime are voluntary, is to be determined by the 
 judge trying the cause. State v. Squeers, N. S. ix. 511. 
 
 136. Confession made under a hope of a settlement not admissible. Train v. 
 State, N. S. ix. 511. 
 
 YI. Practice. 
 
 137. No indictment can now be sustained in Pennsylvania against a female as 
 acommon scold. Commonwealth v. Haichimon, 0. S. iii. 113. See Common Scold. 
 
 138. Whether an indictment concluding, " against the peace of the faithful 
 
CRIMINAL LAW. 317 
 
 Buhjects of this Commonwealth," is good, dabitatur. Commonwealth v. Hutchin- 
 son, 0. S. iii. 113. 
 
 139. Privileged communicBtion upon an application for leave to file a criminal 
 information for a bill contained in a letter, if it appears that such letter comes 
 within the description of a privileged and confidential communication, this court 
 will not grant the application. Semble, that a refusal upon such a ground will 
 not deprive the applicant of his right to bring an action. Ex parte WilliamPar- 
 ki'r Hoare, O. S. ii. 639. 
 
 140. Demurrer to evidence, object and effect of. The object of a demurrer to 
 evidence is not to substitute the judge for the jury as a trier of the facts, but to 
 ascertain the law upon an admitted state of facts, and its effect when issue is 
 joined is to admit every fact which the evidence tends to establish. Bryan v. 
 State, 0. S. iv. 191. 
 
 141. Demurrer to evidence not allowed except by consent. In criminal prose- 
 cutions, neither party can be permitted, except by mutual consent, to withdraw 
 the trial from the jury to the court by a demurrer to the evidence. Brister v. 
 State, O. S. iv. 191. 
 
 142. On an indictment for murder the prisoner discharged his counsel, refus- 
 ing to allow them to offer testimony of his insanity. Held, error in the court 
 not to receive the testimony. State v. Patton, S. iii. 552. 
 
 143. Where one count in an indictment embraces two offences of different grades, 
 a conviction of the inferior offence is an acquittal of the higher, and upon a new 
 trial the defendant cannot be tried and convicted of the higher offence. Jones 
 and Jones v. State, O. S. iv. 444. 
 
 144. Slaves are persons within the meaning of the statute concerning crimes. 
 Nix v. State, O. S. iv. 444. 
 
 145. The allowance of four peremptory challenges, under the " Criminal Pro- 
 cedure Act" of 1860, does not conflict with the constitutional provision " that 
 trials by jury shall be as heretofore, and the right thereof remain inviolate." 
 Martzell v. Commonwealth, N. S. i. 761. 
 
 146. The record of a conviction for murder need not state that the grand 
 jurors had the requisite qualifications. See Parks v. Slate, 0. S. iv. 696. 
 
 147. In felonies not capital, it is to be presumed on error that everything was 
 rightly done at the trial, until the contrary appears. Hence, in such cases, a 
 judgment will not be reversed, because it does not affirmatively appear on the 
 record that the defendant was present at the rendition of the verdict. Holmes v. 
 Commonwealth, 0. S. iv. 439. 
 
 148. Proper course of questioning prisoner, under a statute allowing him to 
 make statement to jury. People v. Annis, N. S. v. 251. 
 
 149. Jury has right in all criminal cases to find special verdict. What is suf- 
 ficient finding. Commonwealth v. CItathams, N. S. v. 377. 
 
 150. When second confession, not made under any inducements, will be ad- 
 missible in evidence, though first was so made. State v. Carr, N. S. v. 317. 
 
 151. The court, in a criminal as well as a civil case, has the right to grant a 
 new trial where the verdict is against law or evidence, or for erroneous admis- 
 sion or rejection of evidence, or for error in the charge to the jury: except only 
 in the case of a verdict of acquittal, on the constitutional principle of "once in 
 jeopardy," &c. Therefore, the court has the power to set aside a verdict of ac- 
 quittal, so far as it imposes costs on the prosecutor, under the Act of 1804, where 
 no evidence of any improper conduct on the part of the prosecutor. Gaffy V. 
 Commonwealth. O. S. ii. 1 82. 
 
 152. The administration of criminal justice would be impracticable, if mistakes 
 'n the names of jurors returned on the venire, and to which no objection was 
 •aken on the trial, should be a cause of reversing the sentence of a criminal court, 
 and such mistakes are cured by verdict under the Act of 1814. Jewell v. Com- 
 mor.wealth, 0. S. ii. 182. 
 
 153. In cases of felony, the Commonwealth's counsel have no right of peremp- 
 tory challenge ; but when an objectional juror is called, he may request that he 
 be ordered to stand aside, and such juror shall not he again called until the panel 
 is exhausted, and then he may be challenged by the Commonwealth for cause, 
 with as much effect as he could have been at first. Id. 
 
 154. When a juror is disabled by sickness or other cause from sitting, the 
 court ought not to require him to be sworn. The court must be permitted to 
 judge what is a sufficient reason for excusing a juror. It is within their discre- 
 tion and not the subject of revision. Id. 
 
318 CRIMINAL LAW. 
 
 '55. It is an irregularity to call talesmen, unless it appear of record that the 
 regular panel was exhausted and an order for talesmen made ; but such irregu- 
 larity not objected to at the time, is an error or defect in the summoning of 
 jurors, and is cured by the verdict under the Act of 1814. Jewell v. Common- 
 wealth, 0. S. ii. 183. 
 
 156. It is not error in a case of homicide, that the names of the witnesses do 
 not appear in the body of the record. It is sufficient that they appear in the 
 usual way on the margin of the mmute book. Id. 
 
 157. The granting or refusing of a new trial in a capital case is purely dis- 
 cretionary, and nothing connected with the manner of its refusal can be the 
 subject of error. Therefore it is not error that the defendant was not present at 
 the motion for a new trial, or at any of the proceedings on said motion. Id. 
 
 158. An error occurring after verdict can affect the judgment only and not 
 the verdict; and if the judgment be thereby affected, this court will correct the 
 error by entering the proper judgment or pronouncing the proper sentence, or 
 will remit the case to the court below for that purpose. Id. 
 
 VII. Insanity. 
 
 159. Held, that a person legally declared a monomaniac, as insane, under the 
 statute, and who, at the time of the proceeding under our criminal code, was, by 
 virtue of due process of law, under the care of guardians as insane, could not be 
 convicted and punished upon a charge of crime involving the subject matter of 
 his insanity. Hummer v. State of Iowa, O. S. i. 697. 
 
 160. Resistance of master of apprentice to prevent his abduction. Ortom. 
 State of Iowa, 0. S. i. 697. 
 
 161. It appearing from the affidavits that the judgment in this case was 
 actually rendered after the enactment of the statute allowing a writ of error, 
 although from the record the contrary might be inferi-ed, the motion to dismiss 
 the writ of error denied. People v. Clark, 0. S. i. ISO. 
 
 162. Insanity as defence for murder. Judge Allison's charge. In re Thomas 
 Wafhington Smith, 0. S. vi. 257. 
 
 163. Whether the defendant bad a mental disease, and whether the killing of 
 his wife was the result of such disease, are questions of fact for the jury. State 
 V. Jones, N. S. xi. 662. 
 
 164. Whether every insane impulse to kill is irresistible is a question of fact. Id. 
 
 165. Onus is on defendant alleging insanity. State v. McCoy, N. S. iv. 120. 
 
 166. In a criminal action, where the defence of insanity is set up, it does not 
 devolve upon the defendant to prove that he is insane by a preponderance of the 
 evidence ; but if, upon the whole of the evidence introduced on the trial, together 
 with all the legal presumptions applicable to the case under the evidence, there 
 should be a reasonable doubt as to whether the defendant is sane or insane, he 
 must be acquitted. State of Kansas v. Crawford, N. S. xiv, 21. 
 
 /III. Gambling. 
 
 167. Evidence that defendant was at a card-table, with a faro box and cards in 
 his hands, warrants a conviction for gambling. Missouri v. Andrews, N S. viii. 
 379. 
 
 168. Gambling, a crime according to laws of New Hampshire. Johnson v. 
 Ferris, N. S. ix. 715. 
 
 IX. Bawdy House. 
 
 169. Evidence in indictment for keeping. Harwoodv. People, N. S. iii. 499. 
 
 X. Selling Liquor Illegally. 
 
 170. In the trial of a married woman on an indictment for selling liquor, her 
 failing- to testify in her own behalf may be considered by the jury. State of 
 Maine V. Cleaves, N. S. xi. 531. » 
 
 171. A married woman selling liquor in the presence of her husband, contrary 
 to law, is presumed to act under his coercion, but this may be rebutted. Id. 
 
 172. A purchaser of liquor sold in violation of law is guilty of no criminal 
 offence, and must testify. State v. Rand, N. S. xi. 721. 
 
 173. Under indictment for selling spirituous liquors, evidence of selling ale, 
 porter and cider, is not admissible. Id. 
 
 XI. Forcible Entry and Detainee. 
 
 174. In an action of forcible entry aad detainer, the title as between the parties 
 is not a matter in issue. Van Eaman v. Walker, N. S. x. 200. 
 
 175. On the trial of a forcible entry, evidence of force employed to maintain 
 
CRIMINAL LAW. 319 
 
 a possession peaceably obtained is inadmissible. Eoffman v. Ilarrmnton, N S 
 xi. 532. 
 
 176. Every forcible entry is forbidden, but not a forcible detainer after a 
 peaceable entry, unless the detainer is unlawful. Id. 
 
 177. The grantee of one who had the possession of land, but who never had 
 himself, cannot maintain an action for forcible entry and detainer. McCartney's 
 Adm'r v. Alderson, N. S. ix. 321. 
 
 178. In forcible entry actions, evidence concerning the possession of the locus 
 in quo must be relevant. Morgan v. Iliggins, N. S. ix, 322. 
 
 179. The Act of April 2d 1866 of Oalifornia, makins an entry in the night, 
 and refusal to deliver up possession a forcible entry, is not unconstitutional. 
 M.cham V. McKai), N. S. ix. 322. 
 
 XII. Malicious PROSEcnTioN. 
 
 180. A criminal prosecution begun merely for the purpose of compellinf; a 
 debtor to pay, is prim4 facie evidence of want of probable cause, and malice. 
 Schmidt v. Weidman, N. S. x. 203. 
 
 181. Civil liability is no probable cause for instituting criminal proceedings. Id. 
 
 XIII. Conspiracy. 
 
 182. It is well settled that before the acts and declarations of one party can be 
 received in evidence against ano;her, in a criminal prosecution, there must be 
 proof of a conspiracy aliunde. Street v. State, N. S. ix. 749. 
 
 183. But 11 conspiracy may be proved, like other controverted facts, by the 
 acts of parties, or by circumstances, as well as their agreement. Id. 
 
 XIV. Bkibert. 
 
 18+. A proposal by an officer to receive a bribe, though not bribery, is an in- 
 dictable misdemeanor at common law. Walsh v. People, N. S. xii. 617. 
 
 XV. Assault and Battekt. 
 
 185. In the trial of a complaint against a man for an assault and battery upon 
 his wife, she is a competent witness in his favor. Commonwealth v. Murphy, N. 
 S. i. 766. 
 
 186. The killing of one who appears to be an assailant is excusable, if the 
 danger appears to be imminent and there is no alternative of escaping the con- 
 .sequences but by resistance, though it afterwards appears that there was no danger. 
 Logne v. Commonwealth, N. S. i. 60. 
 
 187. Where the defendant was acquitted of an assault with intent to murder, 
 and afterwards indicted for the same act, under the charge of an assault of an 
 " aggravated nature," the plea of autrefois acquit, held good. Holt v. State, N. S. 
 viii. 311. 
 
 188. An assault on a man's house can only be regarded as an assault on his 
 person when the purpose of the assault is an injury to the person of tlie occupant 
 or one of his family. State v. Patterson, N. S. xii. 400. 
 
 189. A request to depart from defendant's land and a refusal is necessary 
 before defendant can justify a resort to force. State v. Woodward, N. S. xi. 721. 
 
 1 90. Evidence of* crime charged, showing provocation and truth thereof. 
 Mowraj v. Smith, N. S. >i. 121. 
 
 XVI. Common Scold. 
 
 191. A common scold is indictable in Pennsylvania. Commonwealth v. Mohn, 
 N. S. vi. 634. But see Commonwealth v. Hutchinson, O. S. iii. 113. 
 
 192. Offence of "common scold" saved by 178th section of Revised Penal 
 Code. Id. 
 
 193. How offence sufficiently described in the indictment. Id, 
 
 XVII. False Peetenoes. 
 
 194. An indictment for false pretences, alleging that the defendant, by him- 
 self and through one A. C, falsely and fraudulently represented to the prosecu- 
 tor, that he had a warrant issued by competent authority, for the arrest of his 
 daughter for a public offence ; and by reason of such representation, obtained 
 from the prosecutor divers goods and moneys, &c., is good. Commonwealth v. 
 Henry, 0. S. fi. 182. 
 
 19.5. Defendant obtained goods from the prosecutor, by representmg that he 
 wanted them for J. S.. whom he represented as an ironmonger living at N., to 
 whom ho would trust 1000/., and who went twice a year to New Orleans to take 
 different kinds of goods to his sons there. Jury found all the statements were 
 false — verdict guilty— held right. Reg. v. Archer, 0. S. iii. 635. 
 
320 CRIMINAL LAW. 
 
 196. One who obtains goods by false pretences in one county, and afterwards 
 brings them into another county, where he is apprehended with them, cannot be 
 indicted for the offence in the latter county, but must be indicted in the county 
 where the goods were obtained. Queen v. Stanbury, Jan. 18th 1862. N. S. 1. 
 445. 
 
 197. Want of sufficient allegation of the false pretence. See Reg. v. Oates, 
 O. S. iii. 699. 
 
 198. Indictment for false pretences must be founded upon legal evidence or it 
 will be quashed. People v. Bistenbatt, O. S. iii. 418. 
 
 199. JFalse pretence in debtor representing himself insolvent inducing creditor 
 to part with his claim at a sacrifice. Slate v. Tomlin, N. S. ii. 52. 
 
 200. Eequisite averment in indictment for false pretences. Commonwealth v. 
 Goddard, N. S. ii. 181. 
 
 201. Where the prisoner falsely stated himself to be a servant of A., but was 
 understood by prosecutor to say B., the conviction quashed. Queen r. Bulmer, 
 N. S. iv. 312. 
 
 202. To sustain an indictment for false pretences the pretences alleged to be 
 false must be of some existing facts and made for the purpose of influencing the 
 purchaser. Scott v. People, N. S. xi. 660. 
 
 203. Both the inducement and the fraudulent purpose are facts to be proved, 
 not presumed. Id. 
 
 204. What an indictment must state. Thomas v. People, N. S. vi. 119. 
 
 205. The word "person" in the Act of Ohio of 1873, concerning false pre- 
 tence, includes artificial as well as natural persons. Norris v. State, N. S. xiv. 
 644. 
 
 206. An indictment is sufficient if it alleges that the goods were obtained by 
 defendant by means of false pretence. Id. 
 
 207. If goods are delivered to a carrier in one county, to be delivered to the 
 writer of a letter containing false pretences, in another county, the olfence is 
 completed in the former county. Id. 
 
 XVIII. Embezzlement. 
 
 208. Money of a corporation received by treasurer, and deposited in bank to 
 his credit as such, is the property of the corporation, and if he converts it to his 
 use it is embezzlement. Commonwealth v. Tuckerman, N. S. iii. 1 84. 
 
 209. Admission of evidence of other similar acts to show intent. Id. 
 
 210. The prosecutor gave some marked money to J. W. to expend at his 
 (prosecutor's) shop, for the purpose of detecting a servant of whom the master 
 had suspicions. The servant was convicted of embezzling a portion of the 
 marked money. Selxl, that the conviction was right. Reg. ^. Samuel Gill, 0. 
 S. ii. 505. 
 
 211. Indictment of secretary of a friendly society for embezzlement. See Reg. 
 v. Proud, N. S. x. 444. 
 
 212. What amounts to an attempt to commit a felony. See Reg. v. Bain, N. 
 S. i. 445. 
 
 213. Upon an indictment containing nine counts for embezzlement of different 
 grades, and others for larceny, a verdict, "guilty of embezzlement," is equiva- 
 lent to an acquittal of the larcenies charged, and a bar to any subsequent prose- 
 cution. Guenthery. People, N. S. i. 440. 
 
 XIX. Lakcent. 
 
 214. A wife, in the absence of her husband, and without his knowledge, re- 
 ceived stolen goods, and paid money on account of them. The thief and husband 
 afterwards met. The latter tlien learnt that the goods were stolen, and he agreed 
 on the price which he was to pay for them, and paid the balance to the thief. 
 Held, that on these facts the husband might be convicted of receiving the goods, 
 knowing them to be stolen. The Queen v. Woodward, January 18th 1862, N. S. 
 i. 446. 
 
 215. Larceny of gas by diverting it before it reached the metre. Reg. v. White, 
 0. S. ii. 116. 
 
 216. Illuminating gas may be the subject of larceny. Commonwealth v. Shaw, 
 N. S. i. 764. 
 
 217. Taking of money given for purpose of having a ticket procured. Reg, 
 V. Thompson, N. S. iii. 693. 
 
 218. Detaining check from the finder. Reg, v. Gardner, N. S. iii. 693. 
 
CRIMINAL LAW. 321 
 
 219. On an indictment for larceny of promissory notes, evidence tliat they 
 were of the currency denominated greenbacks, of the denomination of $100 
 bills, was sufficient to sustain a conviction. Renisen v. People, N. S. x. 126. 
 
 220. Putting hand in empty pocket not an attempt to steal. Heg. v. Collins, 
 N. S. iv. 310. 
 
 221. One who, in expectation of reward, witliholds from the owner, whom he 
 knows, a lost check received by him from the finder, is not guilty of stealing the 
 check. Reg. v. Gardner, N. S. ii. 178. 
 
 222. A building on a market garden, nsed for storing tools, manure, and 
 seeds, is not a warehouse within the New Hampshire statute. State v. Wilson, 
 N. S. vii. 252. 
 
 223. Taking several things at one time only one offence. State v, Cameron, 
 N. S. vii. 831. 
 
 224. Evidence on indictment for. Id. 
 
 225. Who is bailee under Pennsylvania Act of 30th March 1860, s. 108. 
 Commonwealth v. Chathams, N. S. v. 377. 
 
 226. Larceny under s. 108. Id. 
 
 227. In an indictment for larceny, the value of the article alleged to be stolen 
 must be stated. Davis v. State,'S. S. ix. 512. 
 
 228. If servant of a railway corporation, having charge of passenger-tickets, 
 once sold and taken up, fraudulently resells same, it is larceny thereof. Eaton 
 V. Farmer, N. S. vi. 256. 
 
 229. What will sustain indictment for larceny. Commonwealth v, Collins, N. 
 S. vi. 438 ; and see post, Robeeet, XXX. 
 
 230. Upon a trial for larceny of a horse a bill of sale offered by the prisoner, 
 without showing its bonS, fide execution, is inadmissible as evidence. Taylor v. 
 State, N. S. xi. 330. 
 
 XX. Compounding Felont. 
 
 231. No consequences follow a conviction of felony, except such as are de- 
 clared by statute. Estate of Nerac, N. S. viii. 506. 
 
 232. Agreement to. Porter \. Havms et al., N. S. ii. 31,6. 
 
 XXI. Illegal Voting. 
 
 233. It is sufficient to allege that the election was held. State v. Marshall, N. 
 S. iv. 507. 
 
 234. Proof in indictment for illegal voting. Id. 
 
 XXII. Seduction. 
 
 235. Evidence in action for. Kenyon v. People, N. S. iii. 569. 
 XXITI. Adultery. 
 
 236. Marriage in good faith with woman whose former husband is not really 
 dead, though supposed to be, is adultery. Commonwealth v. Tliompson, N. S. vi. 
 60. 
 
 XXrV. Bigamy. 
 
 237. To constitute the crime of bigamy, there must be a valid marriage sub- 
 sisting at the time of the second marriage. McReynolds v. State, N. S. vii. 736. 
 
 238. Indictment for, must allege that the first marriage was lawful. King v. 
 State, N. S. ix. 511. 
 
 239. When second marriage by one who had married a,nother under the age 
 of consent, is bigamy. People v. Slack, N. S. vi. 318. 
 
 XXV. Polygamy. 
 
 240. Burden of proof of divorce as defence to indictment for second marriage 
 is on defendant. Commonwealth v. Bayer, N. S. iii. 568. 
 
 XXVI. Rape. 
 
 241. Under an indictment for carnal knowledge and abuse of a female child 
 under ten years of age, the defendant may be convicted of a simple assault, not- 
 withstanding the child consented. The offence charged is rape, and the child 
 has no capacity to consent. People v. McDonald, N. S. i. 185. 
 
 242. A defendant on trial for an intent to commit a rape, having made a state- 
 ment under the statute, that " all the allegations of the prosecution are false and 
 untrue, and that he had never insulted her in his life," it is error for the court 
 to charge the jury that " the statement of defendant does not, however, directly 
 deny the assault. This silence would go far to confirm the testimony of the 
 plaintiff." His assertion that "all her allegations " — of which the. assault was 
 
 21 
 
822 CKIMINAL LAW. 
 
 one — were false and untrue, was a direct denial of the assault. Defoe v. People, 
 N. S. xi. 525. 
 1 243. Although rape can only be accomplished by force, and with the utmost 
 resistance on the part of the woman, yet no more resistance can be required in 
 any case than her condition will enable her to make ; and if she be insensible, or 
 unconscious of the nature of the act, or for any reason not a willing participator, 
 the slight degree of physical force necessary to accomplish carnal knowledge is 
 sufRcient to constitute the offence. People v. Cornwell, N. S. t. 339. 
 
 244. If the woman's consent is obtained by fraud, the nature of the act is the 
 same as if consent had been extorted by threats or resistance overcome by force. 
 Id. 
 
 245. But where the carnal intercourse is not against the woman's desire, and 
 no circumstance of force or fraud accompanies the act, the crime of rape is not 
 committed, notwithstanding the woman was at the time not mentally competent 
 
 *j^ to exercise an intelligent will. Id. 
 
 246. Porce is a necessary element of the crime of rape, and the degree of force 
 used in ordinary sex^ual intercourse is not sufScient to constitute the crime. 
 Walter t. People, N. S. vi. 746. 
 
 247. The woman's consent to the intercourse, even though obtained by fraud, 
 prevents the act from being rape, unless the evidence shows 'hat the man in- 
 tended to use force if his fraud failed. Id. 
 
 248. Where a physician had carnal connection with a woman of infirm mind 
 (but not imbecile) without resistance, but upon the pretence that he was treating 
 her professionally for a disease of the womb, a conviction for rape was quashed. 
 Id. 
 
 249. Prosecutrix may be asked whether she had illicit intercourse with a per- 
 son named, at a specified time and place. State v. Reed, N. S. vi. 77.1 
 
 XXVII. FORGEKT. 
 
 250. An indictment charging that respondent did falsely make and counterfeit 
 is not liable to a charge of duplicity. State v. Hastings, N. S. xiv. 120. 
 
 251. An averment of intent to defraud J. A. H. is sustained by proof of in- 
 tent to defraud a firm of which J. A. H. is a member. Jd. 
 
 252. While the uttering of several drafts is one indivisible act, the forgery of 
 each is a separate offence. Barton v. State, N. S. ix. 122. 
 
 253. A certified check is an entire instrument, and an indictment need not 
 specify that the forgery was of the certification. People v. Clements, N. S. iii, 
 569. 
 
 254. Altering signature on party's own check to defraud bank, is not. Brittain 
 V. Bank of London, N. 6. iii. 693. 
 
 255. False entry in banker's pass-book. Reg. v. Smith, N. S. iii. 693. 
 
 256. Where a person intrusted with checks, signed in blank, for a particular 
 purpose, uses them for bis own account, it is forgery. State v, Kroeger, N. S. 
 x. 744. 
 
 XXVIII. COUNTEUFEITING AND PASSING CoTJNTEHrEIT MONET. 
 
 257. The passing of counterfeit treasury notes may be an offence against the 
 United States, as well as against an individual state. United States v. Wells, N. 
 b. xi. 424. 
 
 258. The passing with intent to defraud of a United States treasury note, is an 
 offence against the state as well as the United States. In re Truman, N. S. ix. 
 192. 
 
 259. Passing counterfeit national bank notes is an offence for which indict- 
 ment will lie in state court. Jett v. Commonwealth, N. S. vii. 260. 
 
 260. It is no variance to allege that a counterfeit bank hill was uttered and 
 passed as true to a person to whom it was actually delivered by the defendant as 
 a true bill, although that person was only the servant of another and had no in- 
 terest in the transaction. Commonwealth v. Starr, N. S. i. 764. 
 
 XXIX. Perjukt. 
 
 261. In indictment for perjury for swearing that the signature was not that of 
 witness, the judge made him write his name, and then impounded both signa- 
 tures. Semble, that on the trial for perjury the jury might compare both signa- 
 tures. Reg. T. Tat/lor, O. S. ii. 117. 
 
 262. False swearing in an application for naturalization in a state court, is in- 
 ^..| dictable as perjury under the state law. State v. Whittetnore, N. S. xi. 263. 
 
CEIMINAL LAW. 323 
 
 263. An indictment for perjury committed on the trial of n, cause should con- 
 tain as essential : 1. The name of the court. 2, The offence should be charged , 
 as committed in the county in which the indictment was found ; and 3. It should 
 appear that the evidence on which the assignment is based was material to the 
 issue. Guston v. People, N. S. xi. 263. 
 
 264. An indictment alleging that the action was pending in the "Supreme 
 Court of the city of New York," and that tlie referee wlio administered tiie oath 
 was appointed by the Supreme Court of the city and county of New York, is 
 faulty in matter of substance. Id. 
 
 265. In trial for perjury the materiality of the false testimony is a question 
 of law for the court. State of Kansas v. Lewis, N. S. xii. 126. 
 
 266. If left to the jury, and their verdict determines the question as the court 
 should have instructed them, no error is done. Id. 
 
 267. Where information charges offence as done at certain time and place, 
 evidence that defendant was at the time at a remote place is material. Id. 
 
 268. Failure to enter a plea will not make trial so far void that false swearing 
 cannot be perjury. Id. 
 
 269. On the hearing of an application for an order of affiliation against H., 
 in respect of a full-grown bastard child born in March, the mother, in answer to 
 questions put to her in cross-examination, denied having had carnal connectioa 
 with G. in the September previous to the birth. G. was called to contradict her ; 
 the justice admitted his evidence, and he wilfully and falsely swore that he had 
 had carnal connection with her at the time specified. Held, by eleven of the 
 judges (Crompto.v, J., and Martin, B,, dissenting), that, although the evi- 
 dence of G. ought not to have been admitted to contradict the mother on a matter 
 which went only to her credit, still, as it was admitted, it was evidence material 
 to her credit ; and, consequently, so far material in the inquiry before the justices 
 as to be capable of being made the subject of an indictment against G. for per- 
 jury. The Queen v. Gibbons, N. S. i. 446. 
 
 XSX. ROEBEKT. 
 
 270. Tlie offence charged against the prisoner was that of having stolen money 
 from a steamboat, navigating Long Island Sound, on her passage from New 
 York to Norwich, Connecticut, and when somewhere opposite the county of Suf- 
 folk, in this state, and he was therefore indicted for grand larceny committed in 
 the county of New York. Held, that the indictment could not be sustained, lie- 
 cause it did not show whether the prisoner was accused of larceny in New York, 
 or larceny committed in another county and bringing the stolen property to New 
 York ; and because Long Island Sound, where this offence was committed, is 
 not a river, lake or canal, within the meaning of our statute, but an arm of the 
 sea. Manly v. People, 0. S. i. 180. 
 
 271. Indictment for robbery not alleging that the property was taken from the 
 person, by defendant, is fatally defective. Stegar v. State, N. S. ix. 511. 
 
 272. On trial for murder, the prisoner spoke with intention to rob. Hauser v. 
 Commonwealth, N. S. v. 668. 
 
 273. Bringing goods stolen in Canada into Ohio is .not larceny in that state. 
 Stanly v. State, N. S. xiv. 54. 
 
 274. In an indictment for larceny, the ownership of the property should not 
 be averred to be in a body of persons, unless such body is incorporated. Wal- 
 lace r. People, N. S. xiv. 54. 
 
 275. Bank bills are the subject of larceny. State v. Gorham, N. S. xiv. 701. 
 And see ante. Larceny, XIX. 
 
 276. The offence of robbery is sustained by proof of the felonious taking of 
 property from another by assault, without putting in fear. Id. 
 
 277. The statement of a prisoner accused of robbery, that he buried the money 
 in a certain place, Is admissible in evidence against him, though not voluntarily 
 made. People v. Hoy, N. S. viii. 184. 
 
 XXXI. BlIKGLAKT. 
 
 278. On the trial of an indictment for burglary, parol proof of possession 
 of' the premises under a written lease is sufficient. Houston v. State, N. S. viii. 
 311. 
 
 279. Under indictment for burglary, prisoner may be convicted of attempt 
 to cotnmit. People v. Lawton, N. S. ix. 638. 
 
 280. Indictment for breaking with intent, &c., need not state what kind of 
 felony was intended. Mason v. People, N. S. iii. 499. 
 
824 CRIMINAL LAW. 
 
 281. In tenement house the door of each room or suite is an, outer door. 
 ■ Mason v. People, N. S. iii. 499. 
 
 282. Mere possession by a person of stolen goods taken on the occasion of a 
 burglary, without other facts indicative of guilt, is not primS. facie evidence that 
 Euch person committed the burglary. Phillips v. People, N. S. x. 125. 
 
 283. An indictment charging the commission of a burglary on a day subse- 
 quent to the finding of the indictment may be amended on demurrer. State v. 
 Blaisdell, N. S. x. 197. 
 
 284. On an indictment framed under section 3695 of the Revised Code of Ala- 
 bama, a count which charges that the defendants " broke into and entered " a 
 certain described building of the class included in that section, " and feloniously 
 took and carried away ' ' certain enumerated articles of personal property of a 
 specified third person, is a count for grand larceny only. To constitute a good 
 count for burglary there must be an averment that the breakiijg and entry were 
 "with intent to steal or to commit a felony." Bell v. State, N. S. xiii. 752. 
 
 285. A count charging that the defendants " broke into and entered " a certain 
 building therein described, of the class included in section 3695 of the Revised 
 Code, "with intent to steal," charges burglary only. There can be no copvic- 
 tion of grand larceny under such a count. Id. 
 
 286. TJnder a count charging that the defendants "broke into and entered " a 
 building which it describes, of the class included in section 3695 of the Revised 
 Code, " with the intent to steal, and feloniously took and carried away " certain 
 enumerated articles of personal property of a specified third person, "of the value 
 of more than one hundred dollars," there may be a conviction of either or both 
 of the offences charged. Id. 
 
 287. Burglary and grand larceny being, under the provisions of the Revised 
 Code, distinct felonies of the same grade and subject to the same nature of pun- 
 ishment, are not governed by the doctrine of merger. 
 
 288. When there is conviction of both burglary and larceny, charged in the 
 same count, but one punishment should be awarded, /d. 
 
 289. A verdict finding the defendants guilty of burglary on the trial of an in. 
 dictment, charging in separate counts both burglary and grand larceny, is tanta- 
 mount to an acquittal of the grand larceny, and thereafter expunges that charge 
 from the indictment. Id. 
 
 290. An acquittal thus obtained is final, and cannot be impaired by a judgment 
 rendered by an appellate court, on defendants' appeal, reversing the convietion 
 for burglary and remanding the cause for further proceedings. Id. 
 
 291. An acquittal of grand larceny, resulting from proceedings on the first 
 trial, being final, takes away any legal foundation for a verdict on the second 
 trial, finding the defendants guilty of grand larceny. Such a verdict is a nullity. 
 Id. 
 
 292. The rendition by the jury of a void verdict is no legal ground for dis- 
 charging thejn from their deliberations. The discharge of a jury, without the 
 consent of tlie defendants, for no other reason than the rendition of a void ver- 
 dict, is tantamount to an acquittal of all the charges upon which the jury were 
 prevented from passing by their discharge. Id. 
 
 293. The defendants in the case at bar having been acquitted of grand larceny 
 on the first trial, and the court having discharged the jury on the second trial, 
 without the consent of defendants, for no other legal reason than the rendition 
 of a void verdict, whereby the jury were prevented from passing on the charge 
 of burglary, the only one remaining in the indictment, it was held that the whole 
 case was thereby ended, and the court below having refused to discharge the de- 
 fendants, the Supreme Court, on their appeal, reversed the judgment and sentence 
 of the court below, and ordered their discharge. Id. 
 
 XXXII. Akson. 
 
 294. Arson is a crime against the security of a dwelling-house as such, and 
 not against the building as property ; and it is therefore proper, in an indictment 
 for the crime, to describe the house burned as the house of the person dwelling 
 in it, without reference to the question of ownership. State v. Tool, N. S. i. 
 244. 
 
 XXXIII. Poisoning. 
 
 295. On trial of husband for attempt to poison wife, the latter is competent 
 witness. People v. Northrup, N. S. vii. 636. 
 
CRIMINAL LAW. . 325 
 
 296. Indictment, under General Statutes of Massachusetts, o. 160, sect. 32. 
 Commonwealth v. Galavan, N. S. v. 185. 
 
 XXXIV. iNFANTIOIDfi. 
 
 297. Disposing of the body. There need not be a final disposing of the dead 
 body of the child ; it is sufficient if there be only a temporary disposition of the 
 body, with the intention of concealing the birth. Reg. v. Jane Perry, 0. S. iii. 
 698. 
 
 XXXV. Inckst. 
 
 298. How indictment should charge the offence. State v. Temple, N. S. v. 638. 
 
 XXXVI. MCRDER. 
 
 299. All parts of the state are included within the body of one or another of 
 the several counties into which the state is divided. State v. Warner, N. S. xiii. 
 106. 
 
 300. When murder has been done in an unincorporated place, publicly and 
 commonly known by name, in any of these counties, the venue is well laid, and 
 the place sufficiently described, if the crime be charged in the indictment as having 
 been committed at (insert the name by which the place is commonly known,) a 
 place within the county of (name of ^county) aforesaid, in the absence of any- 
 thing tending to show that the prisoner would be embari-assed in the preparation 
 of a defence for want of a more particular description. Id. 
 
 301. When there is no controversy as to the precise spot on the face of the 
 earth where the crime was committed, and it appears by ancient charters, legis- 
 lative enactments and judicial records that the political authorities of the state 
 and county have heretofore claimed and exercised jurisdiction over the locality in 
 question, the question of jurisdiction is one of law for the court, and the defend- 
 ant cannot in any stage or form of pleading rightfully claim to have it submitted 
 to the jury as one of fact, for their determination. Id. 
 
 302. Upon such a question the presiding judge, in addition to the matters of 
 which he will take judicial notice, such as legislative enactments, ancient charters, 
 and geographical position, may refresh his recollection and guide his judgment 
 by reference to the records of the courts in the county where he sits, general 
 histories of deceased authors of established reputation, and the records of the 
 census of the inhabitants of the county taken under the laws of the United States 
 by its officers. Jd. 
 
 303. An indictment for murder charging that the prisoner in " some way and 
 manner and by some weapon to the jury unknown killed the deceased," is good. 
 State V. Burke, N. S. xiv. 456. 
 
 304. Aiding another to commit suicide is murder. Commonwealth v. Pratt, N. 
 S. i. 765. 
 
 305. Words no provocation in law to reduce murder to manslaughter. See 
 Reg. V. Noon, 0. S. ii. 116. 
 
 306. For definition of malice aforethought. Id. 
 
 307. A young woman, who was eighteen years of age, and unmarried, and 
 who usually supported herself by her own labor, being pregriant, and about to 
 be confined, returned to the house of her stepfather and mother. The girl was 
 taken in labor (the stepfather being absent at his work). The mother did not 
 take ordinary care to procure the assistance of a midwife, though she could have 
 got one, had she chosen ; and in consequence of the want of siich assistance, the 
 daughter died in her confinement. There was no evidence that her mother had 
 any means of paying for the services of the midwife. Held, that there was, under 
 the circumstances, no legal duty on the part of the mother to call in a midwife, 
 and consequently no such breach of duty as to render her liable to be convicted 
 of the manslaughter of her daughter; The Queen v. Sarah Shepherd^ Jan. 25th 
 1862, N; S. i. 447. 
 
 308. On a trial for murder, where the court of Oyer and Terminer charged 
 the jury that " if they believed that the killing was produced by the prisoner with 
 an intention to kill, though that intention was formed at the instant of striking 
 the fatal blow, it was murder:" it was held that the charge was correct, and 
 that no preWous meditation was necessary to constitute the crime ; the blow be- 
 ing struck with an intention to take life, it is the "premeditated design" speci- 
 fied in the statute. People v, Sullivan, O. S. i. 181. 
 
 309. Homicide not excusable when committed to prevent a trespass. Noles v. 
 State, 0. S. iv. 191. 
 
 310. Murder committed in perpetrating a robbery is murder of the first de- 
 
326 CRIMINAL LAW. 
 
 gree, although not committed with a deliberate and premeditated design to kill. 
 State V. Pike, N. S. xi. 233. 
 
 311. Under an indictment, alleging that the accused '-feloniously, wilfully, 
 and of his malice aforethought, did kill and murder," the jury mayreturn a ver- 
 dict of "guilty of murder Jn the first degree" upon proof of murder by deliber- 
 ate and premeditated killing. Id. 
 
 312. Under such an indictment, the jury may return a verdict of " guilty of 
 murder in the first degree" upon proof of murder committed in perpetrating rob- 
 bery. Id. 
 
 313. A charge that, if the defendant killed his wife in a manner that would 
 be criminal if he were sane, the verdict should be not guilty by reason of insan- 
 ity, if the killing was the result of mental disease, is correct. State v. Jones, 
 N. S. xi. 662. 
 
 314. An indictment for murder charging that the accused did wilfully, feloni- 
 ously and of his malice aforethought, kill and murder, is valid. Rowan v. State, 
 N. S. xii. 189. 
 
 315. Information communicated by others to the person who kills another be- 
 caus'e of it can never be permitted to, reduce the killing from murder to man- 
 slaughter. Fralich V. People, N. S. xii. 659. 
 
 316. Appellate jurisdiction of Pennsylvania Supreme Court in capital cases. 
 Hopkins V. Commonwealth, N. S. v. 444. 
 
 317. When threats are evidence of malice, in murder. Id. 
 
 318. Entry of " true bill" sufficient record of finding by grand jury. Id. 
 
 319. The question as to whether a homicide is justifiable or not, is essentially 
 one of fact, and for the jury under the evidence. Burdick v. People, N. S. x. 
 276. 
 
 320. Under an information where in one count charging murder in first degree 
 all the degrees of homicide are also charged, a verdict finding the prisoner guilty 
 as charged cannot be* sustained. State v. Reddick, N. S. x. 406. 
 
 321. Drunkenness may, upon peculiar circumstances repelling malice, reduce 
 the grade of the crime of homicide from murder to manslaughter. BIynn v. 
 Commonwealth, N. S. x. 577. 
 
 322. Evidence on trial for murder. People v. Fernandez, N. S. vi. 247. 
 
 323. Stains of blood on person and clothing are among ordinary indicia of 
 homicide. Id. 
 
 324. Proof of matters of common observation. Id. 
 
 325. Testimony of chemist, analyzing blood. Id. 
 
 326. Clothes worn by accused, properly submitted to jury. Id. 
 
 327. When deceased's declarations made after receiving injuries, inadmissible 
 for defendants, in manslaughter. Commonwealth v. Densmore, N. S. vi. 568, 
 
 328. Evidence incompetent to contradict witness. Id. 
 
 329. A statute of New York of 1860 was held by the Court of Appeals, on 
 the one hand, to have repealed absolutely all previous statutes providing for the 
 punishment of murder, and on the other, to be itself unconstitutional in estab- 
 lishing a new mode of punishment, so far as it applies to crimes committed be- 
 fore its passage. A judgment on a conviction, under an indictment found after 
 the passage of the act, for a murder committed before, was for this reason re- 
 versed in the Supremo Court, but there was no error in the trial or conviction 
 itself. Held, that the court was bound thereupon to discharge the prisoner, and 
 could not direct a new trial. Kac/der v. People, N. S. ii. 43. 
 
 330. Upon an indictment for murder where the defence is insanity, the jury 
 should acquit if they entertain a reasonable doubt as to the soundness of mind of 
 the prisoner at the time of the homicide, although they believe he had judgment 
 and reason sufficient to discriminate between right and wrong in the ordinary 
 affairs of life. He is as much entitled to the benefit of a doubt on that as en any 
 other material fact in the case. 'Stevens v. State of Indiana, N. S. ix. 530. 
 
 331. An instruction that "if the jury believe that the defendant knew the 
 difference between right and wrong in respect to the act in question ; if he wns 
 conscious that such act was one which he ought not to do," he was responsible 
 for his act, is erroneous. Id. 
 
 332. An indictment for murder furnishes no presumption against the accused 
 at his trial, but as regards all intermediate proceedings between indictment and 
 trial, it furnishes the strongest possible presumption of guilt. Street v. State, 
 N. S. viii. 749. 
 
CKIMINAL LAW— CUSTOM. 327 
 
 333. Evidence in capital. cases — exception to decisions and charge of the court 
 on the trial. Commonwealth v. Dower, N. S. ii. 182. 
 
 SM. Omission of matter of form in the information — sufficiency of averment. 
 Evans v. People, N. S, iii. 184. 
 
 CEITICISM, upon Howard's United States Reports. 0. S. v. 75.5. 
 
 CEOPPER. 
 
 1. Growing crops may be levied upon and sold as chattels under a writ of fieri 
 facias de bonis, and the purchaser under such sale acquires the right of leaving 
 the crop upon the soil until its maturity, and also the privilege of entering upon 
 the soil to gather and take away the crop. Bloom v. Welsh, 0. S. viii. 97. 
 
 2. A judgment binds the land of the defendant from the time of its entry ; but 
 neither the judgment nor the levy of an execution upon the land creates a lien 
 upon the growing crops. Id. 
 
 3. Notwithstanding such judgment and levy upon the land, the growing crops 
 may be sold, or may be levied upon, by virtue of a subsequent execution, and 
 such sale or levy will be valid and operative, provided the crops are severed 
 during the continuance of the defendant's title, and before tlie sale and- convey- 
 ance of the land under the judgment. Id. 
 
 4. The purchaser of land under a sheriif's sale acquires, by virtue of the 
 conveyance, a legal title to the growing crops then upon the land, against a pre- 
 vious purchaser of the crops from the defendant in execution ; such purchase of 
 the crops being made subsequent to the entry of the judgment by virtue of which 
 the land is sold. Id. 
 
 CURRENCY. 
 
 1. Value of English sovereign. Bushy. Baldrey, N. S. vi. 122. 
 
 2. Depositor in bank having a balance to his credit in coin and also in treasury 
 notes, drew for coin, but was tendered notes only — evidence of custom of bank 
 to pay coin on such balances not admissible. Thompson v. Eiggsi'N. S. vii. 122. 
 
 3. A contract for a certain number of "dollars," though agreed to he paid in 
 gold, is not a contract for gold as bullion, but as money. Bucliegger v. Schultz, 
 N. S. V. 95. 
 
 4. The measure of damages for non-performance of a contract to pay money 
 is the number of legal dollars witliout regard to the kmd of money. Id. 
 
 5. In an action on a draft payable in ' ' currency, " parol evidence is admissible 
 to show the meaning of "currency." Pilmer v. Bank, N. S. iv. 336. 
 
 6. Means bank bills, &c., which pass as a circulating medium. Osgood ». 
 McConnell, N. S. iv. 439. 
 
 7. Evidence not admissible to show meaning Id. 438. 
 
 8. Measure of damages is the number of dollars specified. Id. 
 
 9. Certificate of deposit for current bank notes estops a party from denying 
 the currency of the notes. Id. 
 
 10. Decisions on the interpretation of the word, reviewed. Note to Pilmer v. 
 Bank, N. S. iv. 343. 
 
 11. Means bank bills, &c., which pass as and for coin. Springfield, ^c, Ins, 
 Co. V. Tincher, N. S. iii. 312. 
 
 CUSTODY OF CHILD. 
 
 The case of a father claiming the custody of an infant child is not one in 
 which a habeas corpus can issue by a court of the United States as ancillary to 
 the exercise of its jurisdiction. Ex parte Everts, 0. S. vii. 79. 
 
 CUSTOM. 
 
 1. A custom when fully established becomes the law of the trade in reference 
 to which it exists ; and it will be presumed that the parties intended to conform 
 to it when they have been silent on the subject. Chase v. ]V^ashburn, 0. S. i. 487. 
 
 2. Requisites of valid custom to affect contracts. Sipperlj v, Stewart, N. S. 
 vii 639. 
 
 3. Of attorneys to give directions to sheriff not admissible to prove that the 
 attorney gave such directions in ^ particular case. Bine v. Pomeroy, N. S. vii. 697. 
 
 4. The true oflSce of a custom or usage. Note to Strong v. Railway Co., N. S. 
 vi. 690. 
 
 5. Evidence of — admissibility of. Barlow -v. Lambert, S. v. 171. 
 
 6. The custom of the lake ports, that on the failure of the consignees to pro- 
 vide for the delivery of the property consigned to them for twenty-four hours 
 
328 CUSTOM— CUSTOMS. 
 
 after the report of its arrival, the master of the vessel was entitled tb store the 
 freight subject to charges at the nearest port, would not be a reasonable custom 
 at Port Colborne, where there was no facility for the discharge of the cargo ex- 
 cept at one place, and there was some proof of the custom of the port for vessels 
 to wait their turn at that place. Strotig.v. Carrington et al., N. S. ii. 287. 
 
 7. May be proved, to explain contracts. Note to Strong v. Carrington, N. S. 
 ii. 300. 
 
 8. In violation of good morals, cannot be given in evidence. Somes et al. v. 
 Johnson, N. S. ii. 503. 
 
 9. Of brokers as part of the gefleral custom of merchants. Semble, the court 
 ■will take judicial notice' of. Jones v. Pepercorne, 0. S. vii. 50». 
 
 10. Evidence of custom of brokers. Evans v. Wain, N. S. xii. 728. 
 
 11. By the custom of the port of Chicag6, one day is allowed the consignee 
 to provide a dock. Fulton y. Blake, N. S. xii. 779. 
 
 12. Proof of usage is admitted id actions on express contracts, on the ground 
 that it explains the intent of the parties. Lamb v. Klaus, N. S. xii. 199. 
 
 13. Evidence of local custom admissible to supply details in a contract, Written 
 or oral. Barlow v. Lambert, 0. S. v. 171. 
 
 14. Proof of carrier's custom relative to delivery of freight, how far admissible 
 to relieve from responsibility. Mary Washitigton v. Ayres, N. S. v. 692^ 
 
 15. Evidence of usage inadmissible to construe or control legal meaning. 
 Seccomb v. Insurance Co., N. S. v. 568. 
 
 16. No custom of bankers and brokers caSi be proved in contraventioii of the 
 rule of law. Vermilye Sf Co. v. Adams Express Co., Ni S. xiv. 521. 
 
 17. Usage must not be repugnant to contract or law. Randall v. Smith, N. S. 
 xiv. 464. 
 
 18; Where a contract to ship goods at a certain rate per lb., or that the current 
 rates of the day, did not specify in what the rates were to be computed, evidence 
 of a custom to compute them in gold is admissible. Mackenzie v. Schmidt, N. S. 
 xiii. 448. 
 
 19. Custom may also be given in evidence to show that certain sums for primage 
 or average were to be added to the rates expressed. Id. 
 
 20. Such custom beiftg provable in an action on the contract, there is no ground 
 for the jurisdiction of a courtof equity. Id. 
 
 21. A custom among insurance companies as to an agent's property in policies 
 procured bv him may be introduced to explain such contract. Ensioorthy. New 
 York Co., N. S. vii. 332. 
 
 22. The effect of local usage and custom in interpreting contract. Note to 
 \ Whiimore v. South Boston Iron Co., N: S. i. 408. 
 
 23. A custom for intermediate consignees to make sueh deductions is uncertain, 
 unreasonable, and void.- Strong \. Railway Co., N. S, vii 680. 
 
 24. Words are to be constnied in a maritime policy in their ordinary and 
 popular sense, unless by some known usage of trade they have a different mean- 
 ing. Cobb V. Lime Ins. Co., N. S. x. 604. 
 
 25. Partnership msry be entered into with' reference to a customer usage of 
 the place vf here the business is to be conducted. Waring v. Grady^ N. S. xiii. 61. 
 
 CUSTOMS. 
 
 1. The Confederate States never had any existence as a sovereign power. 
 All the laws of the United States were in force at all times and in all places 
 within the territory of the United States during the war, whether the places were 
 within the military lines of the Confederate forces or not.' United States v. Stark, 
 N. S. xi. 37. 
 
 2. The concession of belligerent rights did not rebogriise or confer any right on 
 the Confederate States to collect duties on imports at a port within their lines. 
 Id. 
 
 3. Therefore, payment tb a Confederate collector' of tne'iVort of Savannah, of 
 
 ! duties on goods which ran the blockade, is no defence to an action by tlio United 
 States for the duties under the revenue laws. Id. 
 
 4. The principles of the decisions in United States v. Hayward, 2 Gall. 486, 
 and United States v. Rice, 4 Wheat. 247, do not apply to such a case. Those 
 were cases where the territory passed under the sovereignty of a foreign power 
 during a public war. Id. 
 
 5. "Market value at place," in Act of March 3d 1863, means country where 
 , bought or manufactfired. Cbqmt's Champagne, N. S. v. 507. 
 
CUSTOMS— dam; 329 
 
 G. When probable cause of forfeiture is made out, onus of proving innocence 
 upon claimant, under Act of March 3d 1863. CUquot's Champagne. N. S. v. 507. 
 
 7. Meaning of "knowingly " entering goods, &c., in Act of March 3d 1863 
 Id. 
 
 8. AVhen prices current from other dealers, admissible in evidence. 1:1. 
 
 9. Duty on champagne under Act of June 30th 1864. Bollinger's Champaqne 
 N. g. V. 640. ' 
 
 10. False entry of champagne forfeits it, though duty would have been no 
 greater, if entry true. Id. 
 
 11. Under the Act of Congress which provides that no distilled spirits shall be 
 imported into the United States, except iu casks or vessels of the capacity of 
 ninety gallons wine measure and upwards, on pain of forfeiture of such spirits 
 and also of the ship or vessel in which the same may have been imported : He'd, 
 that where such spirits had been received on board secretly by employees of the 
 vessel, without the knowledge of the captain or clerk, and in violation of a stand- 
 ing rule and positive order, the owners of the vessel would not be liable for 
 their loss since they formed no part of the cargo to be placed in the manifest, as 
 such ; nor would the vessel be subject to forfeiture under the circumstances, 
 though such portion of the spirits as were not allowed by law might Se liable to 
 seizure. United States v. The Gov. Ciishman, N. S. v. 286. 
 
 12. Where certain liquors were imported into the United States in casks, but a 
 leakage occurring on the voyage, duties were imposed only on the amount actu- 
 ally arrived. Sturges v. United States, O. S. iv. 335. 
 
 13. Payment of duties to a Confederate collector of customs during the war 
 was not iu e6fect a payment to the United States, and is no defence to an action 
 on the customs bond. United States v. Lowe, N. S. x. 455. 
 
 14. The fact that such payment was made under threat of a sale of the goods 
 by the Confederate authorities, did not make such payment a defence to the bond. 
 The Confederate officer as to this matter was a mere trespasser. Id. 
 
 15. By the acceptance of a bond for payment of duties within three years, the 
 goods meanwhile to remain in the public stores at the port of entry, the United 
 States did not assume any duty a« insurer or even as bailee of the goods ; and 
 the facts that for several years there was no United States collector present at 
 that port to receive the duties and deliver the goods, and that the goods were 
 taken possession of by an insurrectionary government, do not constitute any de- 
 fence to the bond. Id. 
 
 CY PRES — doctrine not recognised iu Connecticut. In re White, 0. S. i. 280. 
 
 DAM. 
 
 1. One wrongfully damming river and raising water, covering adjacent land, 
 is liable to owner thereof for damages, though no actual damage is caused. 
 Amoskeag Co. v. Goodale, N. S. vi. 256, 
 
 2. Twenty years maintenance of a dam without a fish-way, 'does not acquire 
 a prescriptive right against the public to maintain such a dam. State v. Frank- 
 lin Falls Co., N. S. xi. 272. 
 
 3. It is -no objection to proceedings under the Plovvage Act, that the mill is 
 not on the same tract of land upon which the dam is sought to be erected. Todd 
 V. Austin, If. S. viii. 9. 
 
 4. Where a testator specifies the height to which the lands of one devisee may 
 be subjected to the flowage of another's dam, it cannot be maintained above that, 
 though it was higher at the time of the testator's death. Duslon v. Leddell, N. 
 S. xii. 321. 
 
 5. Merely maintaining a dam for twenty years does not give a prescriptive 
 right to flow land as high as it can be flowed by that dam. Gilford v. Winnipis- 
 eogee Lake, N. S. xiii. 56. 
 
 6. The legislature can prohibit the erection of any dam or bridge over a navi- 
 gable stream, which might impede navigation. Wisconsin Imp. Co. v. Lyons, N. 
 S. xii. 195. 
 
 7. Bill lies to ascertain height to which owner of dam is entitled to flow back 
 water. Carlisle v. Cooper, N. S. vii. 698. 
 
 8. As between proprietors of dams on the same stream he has the better right 
 who was first in point of time. Lincoln v. Chardbourne, N. S. ix. 125. 
 
 9. Where a party has sustained damage from the unlawful erection of a dam 
 
330, DAM— DAMAQES. 
 
 over a navigable stream he may maintain an action for relief, and against its 
 further maintenance. Wiscmsin Imp. Co. v. Lyons, N. S. xii. 196- 
 
 DAMAGES. 
 I. In General. 
 
 1. It is a settled principle, that whenever any act injures another's rights and 
 would be evidence in future in favor of a wrongdoer, an action may be main- 
 tained for an invasion of those rights ; although there be no proof of any specific 
 injury. The Delaware and Sudson Canal Co. v. Torrey, 0. S. vii. 611. 
 
 2. Hence, where saw-dust from the defendant's mill floated down into the 
 plaintiff's basin, although it alone might not cause inconvenience to the plain- 
 tiff, but accompanied with saw-dust from other mills, the plaintiff's flowage was 
 obstructed : it was held, that the defendant's deposit of any saw-dust was an ac- 
 tionable injury, inasmuch as it violated the plaintiff's rights. Id. 
 
 3. In cases of libel in periodicals and newspapers, if it should appear that the 
 proprietor was wanting in reasonable care to prevent abuses, he would be liable 
 to increased damages for his own misconduct, which might fairly be regarded as 
 identifying him with faults which he tools no pains to suppress. Daily Post v. 
 McArihur, N. S. vii. 462. 
 
 4. The general doctrine of the relations between cestuis que trust and trustees 
 discussed. Montgomery v. Whittington, 0. S. v. 344. 
 
 5. Where damages are not a matter of computation they must be assessed by 
 a writ of inquiry. Peacock v. Haney, N. S. xiv. 121. 
 
 6. Damages in replevin must be ascertained by a writ of inquiry. Id. 
 
 7. For failure to return borrowed stock is marlset value on day of demand 
 with interest. McKenney v. Haines, N. S. xiv. 397. 
 
 8. Profits arising from a legitimate business, and interrupted by physical or 
 mental injuries caused by defendant's negligence, are the subject of compensa- 
 tion in damages. Pennsylvania Railroad v. Dale, N. S. xiv. 457. 
 
 9. Mere speculative profits are not to be considered. Id. 
 
 10. Probable profits are not a proper basis upon which to estimate damages. 
 Winslow V. Lane, N. S, xiv. 457. 
 
 11. The damages for land taken to widen a road includes all damages oc- 
 casioned by altering the grade. Van Riper v. Essex Public Road, N. S. xiv. 710. 
 
 12. A wife whose goods have been levied upon by a creditor of her husband, 
 and sold, is entitled to an action of de bonis asportalis against the creditor and the 
 constable. Strasburger v. Barber, N. S. xiii. 258. 
 
 13. The Court of Chancery has power to determine the amount of damages 
 for land taken for railroad. Carpenter v. Easlon %■ Amboy Railroad, N. S. xiii. 
 328. 
 
 14. In an action by the equitable owner of the land against the legal holder 
 of the title, where the former held possession, a, judgment for damages would be 
 erroneous. Moore v. Wade, N. S. xi. 264. 
 
 15. A passenger, carried gratuitously by a railroad company, who is injured 
 by the gross negligence of company's servants, is entitled to recover damages. 
 Reading Railroad Co. v. Derby, O. S. i. 397. 
 
 16. Telegraph companies holding themselves out to transmit despatches cor- 
 rectly are bound so to do, or respond in damages. Bowen v. Lake Erie Tele- 
 graph Co., 0. S. i. 685. 
 
 17. The jury iu estimating damages, under the Act of April 15fh 1851, for 
 death caused by collision of trains on railroad, may take into consideration tlie 
 age, habits, health, and pursuits of the deceased. Penna. Railroad Co. v. Mc- 
 Closkey's Adm'r, 0. S. iii. 412. 
 
 18. By the common law of England, the owner of cattle, horses, &c. , is bound 
 to keep them within a sufiicient enclosure. V. ^ J. Railroad Co. v. Patton, 0. 
 S. vi. 457. 
 
 19. Eor injuries by railroad company running their trains on a public street, 
 with reference to all persons rightfully on the street, plaintiff cannot prove his 
 pecuniary or social condition so as to enhance the damages. K. P. Railway Co. 
 v. Pointer; N. S. xii. 63. 
 
 20. The sheriff, under a writ of provisional seizure, took a tenant's goods into 
 possession for rent. Tenant then filed a petition, and was adjudged a bankrupt. 
 The assignee in bankruptcy could not interfere with sheriff's possession — measure 
 of damages in such case. Marshall v. Knox, N. S. xii. 630. 
 
 21. When a court of equity has jurisdictiou, if relief prayed for cannot be 
 
DAMAGES. 331, 
 
 granted, compensation in damages may be awarded. Masson ^ Besanson's Ap- 
 peal, N. S. xii. 402. ^ 
 
 22. In an action for damages for breach of promise of marriage, the jury may 
 consider the fact of seduction. Sauer v. Schulenberg, N. S. x. 478. 
 
 23. Where an injunction was modified so as to allow the defendant to remove 
 certain machinery on giving bond for their value, and decree afterwards in favor 
 of plaintiff : held, that the obligors in the bond were liable only for the damages 
 occasioned by the removal. Moulton, Adm'r, v. Richardson, N. S. x. 199. 
 
 24. Where a safe maker sells a safe with an express warranty that it is l)ur- 
 glar-proof, which is untrue, the purchaser may recover. Sanborn v. Herring, N. 
 S. vi. 457. 
 
 25. Eight of corporation erecting dam on its own land, to overflow land of 
 another. Amoskeag Co. v. Goodale, N. S. vi. 256. 
 
 26. In an action to recover damages for refusing to deliver bonds alleged to 
 have been bought by the defendant as the plaintiff's agent, the plaintiff, to prove 
 the value of the bonds, may show that they were paid by the company issuing 
 them in gold. Simpkins v. Low, K. S. vii. 508. 
 
 27. Defendant's wealth may be considered by jury in assessing damages in a 
 case of slander. Humphrissy. Parker, N. S. vi. 184. 
 
 28. Not an allegation of special damage, whereby the plaintiff was subjected 
 to great inconvenience and injury. Roberts v. Graham, N. S. vii. 377. 
 
 29. Where an action of trespass is brought for a mere entry by a landlord, 
 upon the possession of a tenant holding over, and merely constructively forcible, 
 only nominal damages can be recovered, Reeder v. Purdi/, N. S. vi. 104. 
 
 30. Where a manufacturer of burglar-proof safes exhibits two safes differing 
 in price, and the customer talses the cheaper one upon the assurance that it is 
 really surer protection against burglars, which is untrue, the purchaser may re- 
 cover. Sanborn v. Herring, N. S. vi. 457. 
 
 31. Whether a municipal corporation, acting under lawful and undisputed 
 powers, may be liable for consequential damages to property owners, discussed. 
 Mills V. Brooklyn, N. S. v. 33. 
 
 32. Upon a hearing in an action for damages after a demurrer to a declaration 
 chaiTting an injury by the negligence of the defendant, the defendant may show, 
 for the purpose of reducing the damages to a nominal sum, that the plaintiff was 
 gniltv of negligence directly contributing to the injury. Daily v. Railroad Co., 
 N. S". V. 60. 
 
 33. The conversion of a way dedicated to the use of purchasers of lots adjoin- 
 ing a public way, does not authorize the award of more than nominal damages. 
 Stetson V. Bangor, N. S. xii. 668. 
 
 34. Where property is taken by a trespasser, the trespasser is liable for the 
 full value. Lucas V. Bruce et al., N. S. iv. 95. 
 
 35. Damages for injury received by collision, when counsel fees, agent's com- 
 missions, and premium for exchange may be included. BInnchard v. Ins. Co., 
 N. S. vi. 508. 
 
 36. Damages for cutting lead pipe laid upon defendant's land under a parol 
 license. J)ark v. Johnson, N. S. vi. 543. 
 
 37. Damages are realty, where policy runs to assured, his executors, &c.,tho 
 latter may maintain an action as trustee for the heirs. Wyman v. Wyman, N. S. 
 iii. 569. 
 
 38. In an action by surviving relatives for death caused by negligence, the 
 amount of damages is to be measured by the pecuniary loss merely. Telfer v. 
 Northern Railroad Co., N. S. iii. 665. 
 
 39. Opinion of the judge as to amount of damages not error. Oswald v. Ken- 
 nedy, N. S. iv. 638. 
 
 40. Claim for unliquidated damages cannot be attached. McKean v. Turner, 
 N. S. iv. 437. 
 
 41. Defendant may give evidence in mitigation of damages in suit by employee 
 on contract for services for determinate period. King et al. v. Steiren, N. S. iii. 
 310. ; 
 
 42. The damages should be compensatory and not punitive, in suits agamst 
 military commissions for their acts during the war. Milligan v. Hovey, N. S. 
 
 xiii. 122. T c! ■•• 
 
 43. The value of goods at the time of conversion. Johnson v. Stcar, N. S. in. 
 
 753. 
 
332 DAMAGES. 
 
 44. In action for abduction of child, expenses of pursuit may be recovered. 
 Rice T. Nickerson, N. S. iv. 703. 
 
 45. Damages may be paid into court to await the determination of the Original 
 attachment siiit, where owner of property attached may have action against the 
 attaching officer for negligence pending the attachment. Briags v. Taylor, N. 
 S. iv. .56. 
 
 46. For breach of promise of marriage. Harrison v. Swifts 'S. S. vii. 57. 
 
 47 . For breach of contract to pay is the amount that would have been received. 
 Wicker V. Happnek', N. S. vii. 377. 
 
 48. The rule of damages for not furnishing manufactured articles according to 
 contract. Note toWhitmore v. South Boston Iron Co., N. S. i. 408. 
 
 4D. Damages for illegal arrest as against the officer making the arrest. Ham- 
 lin V. Spaulding, N. S. ix. 123. 
 
 50. New trial granted where damages are inadequate. Richards v. Sanford, 
 O. S. V. 313. 
 
 51. For servant's negligence. McCahilly. Kipp, 0. ?>.-v.!i\S. 
 
 52. Although, as a general rule, opinions of witnesses are to be excluded, 
 except upon questions of science' and skill, as to which they have been specially 
 instructed or educated, yet witnesses may give their opinion upon questions of 
 value, and as to the amount of damages a party has sustained, where the damage 
 consists in an injury to or destruction of property. Nellis v. McCarn, 'S. S. i. 
 310. 
 
 53. Measure ofj subject discussed. O. S. iv; 318. 
 
 54. Law of damages; O. S. ii. 641. 
 
 55. It is not error for a court to charge that the jury would be justified in 
 giving plaintiff compensation not only for such damages as he had already sus- 
 tainedv but also for such as he will reasonably sustain in the future.' Passenger 
 Railway Co. v. Donahue, N. S. xii. 405; 
 
 56. Damages for negligence are to be measured by the same rule as to artificial 
 as to natural persons. Id. 
 
 57. While those damages which depend on the sound discretion of a jury are 
 not susceptible of any accurate regulation by the court, yet the jurj^ shotild be 
 prevented firom acting upon improper- theories as to the legitimate elements to be 
 considered in estimating them. Daily Post Co: v. McArthur; N. S. vii. 462. 
 
 58. The damages for dejay to transmit an order to buy. stock j in a suit against 
 a telegraph company, is the amount lost by the advance of the stock. Ritten- 
 Kov.se V.' hatspenetent Tdegr'aph Co., IS. S; x. 800. 
 
 59. If different agencies have concurred in producing a private grievance, the 
 liability of each person for such portion of the damagiss as is allowed- for injured 
 feeling should be measured by the extent of his own misconduct. Daily Post 
 Co. V. McArthur, N. S. vii. 462i 
 
 60. While the mischief which niay be caused by an abuse of the press is such 
 as to render its conductors responsible for great care in guarding against the 
 danger, yet the necessities of civilization require that no unreasonable or vexa- 
 tious restrictions shall be imposed upon it. Id. 
 
 61. When evidence in aggravation and mitigation admissible. Millard v. 
 Brown, N. S. vi. 378. 
 
 62. The measure of damages for conversion of shares of stock loaned) where 
 the value has risen since the conversion, is the value at the time of trial. Mus- 
 grave v. Benkendorf^ N. S. vi. 433. 
 
 I 63. Agreement binding maker in "full and liquidated sum of $1000, over and 
 
 above actual damages," &c., is for liquidated damages. Dwinel vi Brown) N. S. 
 vii. 441: 
 
 64. Costs incurred in an action of trover and conversion cannot be recovered 
 as damages in a subsequent action; Harris v. JBldred, N. S. ix. 647i 
 
 65. The measure of damages for breach of contract of a common carrier to 
 deliver goods according to promise, is the difference between the value when they 
 are delivered and what they were worth to the consignor, if delivered at the time 
 promised. Detning v. Grand Trunk Railroad, N. S. ix. 509. 
 
 66. Vendor interfered with vendee's building by injunction which was after- 
 wards dissolved. Vendee having sold the land was not entitled to recover on the 
 injunction-bond damages for difference of cost in building between time when in- 
 jiinction issued and when dissolved. Morgan v. Negley, N. S. vii. 59. 
 
 67. If no special damages laid, plaintiff can recover only for such as arise 
 proximately from the breach of contract. Hallock v. Belcher, N. S. iv. 184. 
 
DAMAGES. 333 
 
 68. Tor building blown up to stop a fire, how determined. Parsons v. Pettin- 
 gell, N, S. vi. 184. 
 
 69. In action for not satisfying a judgment, evidence of special damage not 
 necessary, and court not bound to limit recovery to nominal damages. AUen v. 
 Conrad, "K. S. vi. 23. 
 
 70. Measure of, in action for omitting to present a note at maturity and give 
 notice. Bridge v. Mason, N. S. v. .565. 
 
 7 1 . Evidence in mitigation of. Id. 
 
 72. A verdict for substantial damages, for barring a minister out of his church 
 on Sunday, should not be disturbed. Lr/ndv. Menzies, N. S. viii. 94. 
 
 n. In Actions fok Personal Injuries, and herein op Libel and Slander. 
 
 73. The damages to which parents are entitled for producing the death of their 
 son, under the Act of 20th April 1855, are to be estimated by the pecuniary 
 value to them of his services during his minority, together with expense of care 
 and attention to the deceased arising out of the injury, funeral expenses, and 
 medical services, if any. This excludes damages for the suffering of the deceased, 
 which was personal to himself and did not survive, as well as for solace, which 
 is incapable of appreciation so as to be compensated. This is the rule where the 
 death was produced by negligence evincive of moral turpitude. In such cases, 
 merely compensatory damages may be exceeded. Penna. Railroad Co. v. Zebe, 
 O. S. viii. 27. 
 
 74. In order to maintain an action under the 9 & 10 Vict., c. 93, actual dam- 
 ages must have accrued from the death of the deceased. Proof of the death and 
 relationship of the parties does not give a right to nominal damages. Duckworth, 
 Administrator , V. Johnson, 0. S, vii. 630. 
 
 75. In an action under that statute by a father for the death of his son, it was 
 shown that the deceased earned a certain weekly sum, which he brought into the 
 general stock of the family. Quaere, whether, in order to maintain the action, 
 the plaintiff should have given evidence that the weekly expense of keeping the 
 deceased did not exceed that amount? Id. 
 
 76. Where in an action for damages upon an alleged libel, the judge at the 
 trial instructed the jury that if they found for the plaintiff, the amount of tlieir 
 verdict was in their absolute discretion, and that such discretion was uncontrolled 
 by any legal rule or recognised measure of damages ; it was held erroneous. 
 Thompson V. Keereber, 0. S. vii. 50. 
 
 77. The judge should have charged the jury that if they found for the plaintiff 
 they should give such an amount of damages as in their opinion would be an ad- 
 equate compensation to the plaintiff for the injury actually sustained by^ him ; 
 and if the libel originated in malice, in their opinion, they might give such ad- 
 ditional damages as they thought would justly punish the defendant. Id. 
 
 78. Plaintiff entitled to recover full pecuniary indemnity for the actual corpo- 
 real injury received. Leach v. Francis, N. S. viii. 511. 
 
 79. An action under Pennsylvania Act of 1855, providing a remedy in case 
 of death by violence, the injury done to the party living, caused by the death, is 
 the measure of damages. Coakley v. North Pennsylvania Railroad, 0. S. vi. 
 355. 
 
 80. A railroad company is not liable to an action for damages for an injury 
 received by a conductor of one of its trains, in consequence of the insufKciency 
 of the cars, or defects in the machinery, where such insufficiency or defects were 
 unknown to both parties. Mad River §• Lake Eiie Railroad Co. v. Barber, 
 0. S. vi. 534. 
 
 81. If a passenger is wilfully and neglectfully injured, the jury may give ex- 
 emplary damages. Chicago, R. I. ^ P. Railroad Co. v. Herring, N. S. xii. 196. 
 ' 82. In an action against a railway company, plaintiff may show the nature 
 and extent of his injuries. K. P. Railway Co. v. Pointer, N. S. xii. 63. 
 
 83. In an action for damages by a person injured by negligence, evidence of 
 the number of plaintiff's family is not admissible, unless special damage is 
 averred. Penna. Railroad Co. v. Books, N. S. vii. 524. 
 
 84. In an action. for injury by negligence, the damages should be compensa- 
 Bation for the actual injury. Id. 
 
 85. If a brakeman, employed on a railway passenger train, assault and grossly 
 insult a passenger thereon, the company will be liable for exemplary damages. 
 Goddard\. Grand Trunk Railway Co., N. S. x. 17. 
 
334 DAMAGES. 
 
 86. Plaintiff may recover damages for bodily pain and suffering. Swarthout 
 T. New Jersey Transportation Co., N. S. vi. 190. 
 
 87. Evidence of plaintiff's general character, in mitigation of damages for 
 Slander. Moyer v. Mayer, N. S. v. 191. 
 
 88. In an action of slander, what is evidence in mitigation of damages. 
 Bridgman v. Hopkins, N. S. i. 168. 
 
 89. In trespass for taking jjersonal property, where the property has been taken 
 without malice and under a claim of right, and the controversy relates only to 
 the title, the rule of damages is the value of the property at the time of the taking, 
 and interest from that time to the time of the judgment. Oviatt v. Pond, N. S. 
 1. 188. 
 
 90. Where, in such a case, the plaintiff claimed that, by taking of the pro- 
 perty he had been broken up in his business, and the judge charged the jury 
 that the defendant must make the plaintiff good for all the actual damage sustained 
 by him at the defendant's hands, resulting directly and naturally from the injury, 
 a new trial was granted on motion of the defendant. Id. 
 
 91. Under the 27th section of the statute with regard to intemperance, which 
 provides that "no action shall be maintained for the recovery or possession of 
 spirituous liquors, or the value thereof, except in cases where persons owning or 
 possessing such liquor.s, with lawful intent, may have been illegally deprived of 
 the same," there can be no recovery in an action for trespass for the value of 
 
 ' liquors taken, where the same were kept for illegal sale. Id. 
 
 92. Liquors kept for sale contrary to law, are regarded by the law as having 
 no lawful value, or value for lawful purposes. Id. 
 
 93. The character and doings of private persons, not developed in legal pro- 
 ceedings or voluntarily made public, cannot properly be discussed in print; and 
 for all libels, every publisher, whether an individual or a corporation, is respon- 
 sible to the extent of any special damage, and any estimated damage to credit and 
 reputation. But he is only liable for such damages to injured feeling as must 
 inevitably be inferred from the libel itself, published in a paper of such character 
 and circulation as his, if he has used such precaution as he reasonably could, to 
 prevent such an abuse of his columns. Daily Post Co. v. McArthur, N. S. vii. 
 462. 
 
 94. The employment of competent editors, the supervision by proper persons 
 of all that is to be inserted, and the establishment and habitual enforcement of 
 such rules as would probably exclude improper irems, should exempt a publisher 
 from any aggravation of damages on account of the express malice of his subor- 
 dinate, ,for any libel published without his privity or approval. Id. 
 
 95. In a case where the mother is to be compensated for the injury or loss con- 
 sequent upon the death of her infant child, the shock or suffering of feelings is 
 not to be taken into the account, but only the pecuniary loss, and that is not to 
 be extended bevond the minority of the child. State of Maryland v. Railroad 
 Co., N. S. v. .397. 
 
 96. Measure of damages, for loss of life. Note to same, 406. 
 
 97. Counsel fees paid in defending ejectment suit cannot be recovered as part 
 of the damages, unless the covenantor refuses to defend the title. Id. 
 
 98. Under the General Statute of New Hampshire the owner of a dog is liable 
 for double damages to the person injured, whether he knew of the vicious habits 
 of the animal or not. Orne v. Roberts, N. S. xii. 5.5. 
 
 99. In seduction, are for jury. When court will not interfere. Ingersoll v. 
 , Miller, N. S. vi. 443. 
 
 100. Evidence to determine compensation for loss of mental and ph3'sical ca- 
 pacity by injury. Ballen v. Farnum, N. S. vi. 58. 
 
 101. In an action for causing wrongful death, funeral expenses are not "reco- 
 verable as damages. Gay v. Winter, N. S. viii. 184. 
 
 102. If recoverable at all, they must be recovered as special damages and be so 
 pleaded. Id. 
 
 III. In actiokb fok Injtjrieb to Propeett. 
 
 103. To a plea of justification in trespass qu. cl. fr., &c.. that the acts com- 
 plained of were rightfully done by the defendants, under an authority vested in 
 them as tax collectors, to enter and distrain for taxes due them in that capacity, 
 the plaintiff replied, protesting that the defendants were not collectors, and that 
 no tax was due, de injuria, as to the residue of the plea. Held, good. Curry v. 
 Hoffman, 0. S. ii. 246. 
 
DAMAGES. 335 
 
 104. How far de injuria may be replied generally to a jurisdiction under au- 
 thority in law, not derived from a court of record, qum-e. Curry v. Hoffman, 0. 
 S. ii. 246. 
 
 105. What is proper measure in trespass. Fretenheit v. Edmondson, N. S. v. 447. 
 
 106. A libel for the loss of a vessel on the Canadian shore of Niagara river, 
 having been referred to a master, he reported that at the time of the loss the ves- 
 sel was worth a certain sum of "dollars in gold, or Canadian currency," and 
 that gold or Canadian currency was, at such time, at a premium of forty-nine 
 per cent, over United States legal tender notes. Held, that tlie value being re- 
 ported at a certain sum in foreign currency, the damages were to be estimated at 
 the value of that sum in United States notes, and the use of the word " gold" in 
 coTinection with Canadian currency did not require any different rule than would 
 have been applied had the value been stated in the foreign currency only. Coun- 
 cer V. Tug " Griffin," N. S. v. 45. 
 
 107. When goods have been intrusted to a carrier to convey to a particular 
 place, and by his default they are not delivered, the party entitled to them will 
 be warranted in procuring other similar goods at the place, if there be a market 
 for them, and the measure of damage will be the price at which such goods can 
 be obtained in the market. If, however, there is no market for such goods at the 
 place of delivery, the damages must be ascertained by taking into consideration 
 various matters, such as (in addition to the cost price) the expense of transit 
 and reasonable profits. O'Banlon v. Railway Co., N. S. v. 244. 
 
 108. In cases of collision, when both. vessels are in fault. The general rule 
 of the common law is that if both vessels are in fault, neither can recover dam- 
 ages for injuries caused by the collision ; but this rule applies only to faults 
 which operated directly and iramediatelv to produce the collision. Owners of 
 Steamboat Farmer v. McCraw, 0. S. iv. 191. 
 
 109. As a general rule the opinion of a witness is no evidence of the amount 
 of damages sustained by landholders for land taken by railroad. Railroad Co. 
 V. Francis, 0. S. iv. 630. 
 
 110. Of land taken by railroad company, rule as to assessment of. See Rail- 
 road Co. V. Bummell, 0. S. v. 244. 
 
 111. Rule of, as against railway companies. See Eailtsoab. 
 
 1 1 2. Where grade of street is changed, damages can only be recovered for in- 
 juries to the land or building itself, and not for injury to the trade carried on 
 upon the premises. Stadler v. Milwaukee, N. S. xiii. 652. 
 
 113. Trover will lie to recover the value of coal dug by the owner of land, 
 through a mistake of boundaries, out of adjoining land. Forsyth v. Wells, N. S. 
 i. 225. 
 
 114. In a civil action founded on a tort, damages in full compensation of the 
 injury, cannot be increased by the addition of a fine for the punishment of de- 
 fendant. Fay etvx. v. Parker, N. S. xiv. 121. 
 
 115. The Massachusetts statute, 1840, c. 85, sect. 1, providing for damages 
 for property set on fire by sparks, &c., extends to personal property. Ro^s v. 
 Boiton, Spc, Railroad Co., N. S. iii. 251. 
 
 116. In trespass de bonis asportntis against an officer for selling one man's 
 goods under an execution against another, the damages are compensatory only, 
 in the absence of malice. Beveridge v. Rawson, N. S. x. 133. 
 
 1 17. The measure of damages in an action for detention of water from plain- 
 tiflPs manufactory is the value of the use of the waters, and not the profit on the 
 goods they could have manufactured, Pollitt v. Long, N. S. x. 277. 
 
 118. The measure of damages must be determined by the facts of each case. 
 Wanamnlcerv. Bowes, N. S. xii. 61. 
 
 119. In trespass qu. cl., the declaration alleged that the defendant broke and 
 entered into the plaintiflTs land, and trod down and destroyed the herbage, and 
 cut down the trees, and dug up the ground, to the plaintiff's damage. The 
 plaintiff introduced evidence to prove that the defendant not only cut down the 
 trees, but removed the wood ; and the court charged the jury that in estimating 
 damages they might take into consideration the cutting and removal of the wood, 
 if the trespass was one continued act. Held, that the evidence was inadmissible, 
 and the charge erroneous. Johnson v. Gorham, N. S. xii. 271. 
 
 120. Where a railroad, without the owner'? consent, enters upon his land and 
 occupies jt, the companvis liable for the value of the land at time of occupation. 
 Graham v. C. ^ N. C' Railroad Co., N. S. xii. 327. 
 
336 DAMAGES. 
 
 121. In an action by mortgagee for illegal seizure of goods under -a void attach- 
 ment, the defendant may prove, in mitigation of damages, that at the time of 
 seizure there was rent in arrear for the premises where the goods were, which 
 was paid by the sheriff out of the proceeds. Wanamaker v. Bowes, N. S. xii. 61. 
 
 122. The damages for the taking of land for railroad purposes should be esti- 
 mated as of the day when the compapy acquired the right to the property. Driver 
 v. Western Union Railroad Co. , N. S. xii. 463. 
 
 123. The measure of damages is the value of t^he.l^nd t^Hen and tli,e , dirpinu- 
 tion in value of the. adjacent property. Id. 
 
 124. In an action for the conversion of stopk pledged, the measure of damages 
 is the highest price of the stock between the conversion #nd day of trial. Law- 
 7-ence v. Maxwell, N. S. xii. 463. 
 
 125. In an action for wilfujly injuring a mine, the measure of damages is the 
 actual injury by delay, loss of time, &c., but not merely speculative profits. 
 McKnighl v. Batcliff, N. S. iii. 311. 
 
 126. Only damages actually proven allowed for cutting timber en vacant land, 
 when defendant believed it was his lapd. Mining Co. v. Irby, N. S. ix. 5S3. 
 
 127. For construction of a railroad thrpugh a farm, the measure is, the market 
 value of the land taken, and the jury may allow for loss from the manner the 
 farm is cut. E. Penn. Railroad Co. v. Hottenstine, N, S. iv. 184. 
 
 128. But they cannot claim also for the profits in the transportation by engine 
 of the extra quantity of coal they might have transported by it in the .same 
 period. Id. 
 
 129. The value of the property destroyed is the measure of damages in an 
 action against an agent for not procuring full insurance. B^ardsley v. Davis, 
 N. S. viii. 379. 
 
 130. In an action of trespass de bonis asportatis, the general rule for the mea- 
 sure of damages is the value of the goods at the time of the taking, or their 
 highest- value between that time and the trial, with interest and damages for any 
 acts of outrage or oppression that may have accompanied the taking. McfJnroi/ 
 V. Dyer, N. S. iv. 166. 
 
 131. But where there has been a re-delivery of the goods to the owner, or a 
 re-acquisition by him, as by purchase at a sale, &c., the measure «f damages is 
 what it has cost him to regain possession, what he has lost by the temporary 
 deprivation of the use of the goods, ^nd such other damages as will make com- 
 pensation for the injury. Id. 
 
 132. The damages for forcibly taking possession of certain wheat and selling 
 it, is the highest price of the wheat at any time between the taking and sale. 
 Ellis V. Wire, N. S. .».. 665. 
 
 133. The measure of damages in an action for diverting a stream, is the de- 
 preciation in the value of plaintiff's premises. Easterbrook v. Erie Railroad Co., 
 N. S. viii. 188. 
 
 134. Rule of, against carrier for injuries sustained by cattle in transporting. 
 Black V. Railroad Co., 1)1. S. v. 566. 
 
 135. Extent of, in trespass for removing property from attaching officer. 
 Houston V. Howard, N. S. vi. 438. 
 
 IV. In Actions on Contracts. 
 
 136. That the measure of damages in such action was the difference between 
 the contract price and the market value of the merchantable corn at the time it 
 should have been delivered, together with the amount advanced on the contract, 
 and interest. Hamilton v. Ganyard, N. S.ii. 236. 
 
 137. The measure of damages on breach of a contract to deliver chattels, 
 where the purchase-money has been paid, is the highest price at any time be- 
 tween the time appointed for delivery. Ciitvit v. McFp.dden, O. S. iv. 444. 
 
 138. Where one collects money for another and refuses to pay it over, the 
 jury may allow damages for the detention, and the measure of damages in such 
 cases is the lawful rate of interest. Close v. Fields, 0. S. iv. 444. 
 
 139. Measure of, in actions, ex contractu, discussed. O. S. iii. 513. 
 
 140. Measure, under a written contract, when master of a whaling ship wrong- 
 fully discharged. Detmis v. Ma^eld, N. S. v. 506. 
 
 141. For refusal to permit transfer of stock, its. actual value at time of refusal. 
 Building Association v. Sendmeyer, N. S. v. 443. 
 
 142. Rule of damages for breach of contract to furnish quantity of merchan- 
 
DAMAGES. 337 
 
 dise as called for, when party refuses to receive goods. Danfortk v. Walker, N. 
 S. V. 316. 
 
 143. On the 1st of April the defendants contracted to sell to the plaintiff a 
 quantity of cotton at a certain price, to be delivered during the following August. 
 In contracts for ' ' forward delivery, " it is the universal custom of the trade for 
 purchaser to resell the goods before the time for delivery. Between the date of 
 the contract and the time of delivery, the plaintiff contracted with third persons 
 for the sale to them of cotton, to be delivered in August, relying upon the per- 
 formance by the defendants of their contract to enable him to fulfil his sab-con- 
 tract. At the date of the resale the price of cotton had risen considerably, but 
 had fallen again before the last day of August, when, however, it was still in 
 excess of the price for which the plaintiff had purchased in April, The defend- 
 ant not having delivered the cotton. Held, that the plaintiff was entitled, byway 
 of damages, only to the difference between the contract price and the market 
 price at the time of delivery, and was not entitled to recover the profits he would 
 have realized by the performance of the sub-contract. Williams v. Reynolds, N. 
 S. V. 370. 
 
 1 44. Damages in an action for failure to deliver on a certain day. Holmes v. 
 Wakefield, N. S. vi. 573. 
 
 145. Damages for breach of agreement to re-convey. Lawrence v. Chase, N. 
 S. vii. 441. 
 
 146. A party may recover damages for refusal by defendant to allow him to 
 complete a contract, where he alleges willingness on his part to go on. Black 
 V. Woodrow ^ Richardson, N. S. xiii. 774. 
 
 147. Compensation under special contract, where the employee dies, is to be 
 measured by the contract. Clark v. Gilbert, N. S. iii. 699. 
 
 148. Damages for breach of covenant, to pay rent for coal taken out, and to 
 take out certain quantity. Powell v. Burroughs, N. S. vii. 315. 
 
 149. In action for delay in transportating flour — decline in market value is 
 proper element of damages. Weston v. Railroad Co., N. S. vii. 440. 
 
 150. Measure of, in actions for breach of warranty on sale of chattel. Brown 
 V. Bigelow, N. S. v. 575. 
 
 151. Rule not affected by re-sale at increased price. Id. 
 
 152. The defendants agreed with the plaintiff to receive his ship into their 
 docks. When the time came for receiving the ship, they were unable to do so. 
 The ship lay in the river, and, as the tide fell, she stranded, broke her back, and 
 was seriously damaged. In an action for the breach of the contract to receive 
 the ship into the dock, the plaintiff sougfit to recover for the injury to the ship as 
 special damage. The judge asked the jury, first, whether there was a place of 
 safety to which the ship might have been taken ; and, if so, secondly, whether 
 the captain or pilot had been guilty of negligence in not taking her there. The 
 jury gave no answer to the first question, but, to the second, answered that the 
 captain and pilot did the best they could under the circumstances, and were 
 neither of them guilty of any negligence. 'The judge thereupon directed a ver- 
 dict for the plaintiff for the damages claimed. Held (per Pollock, C. B., 
 Channell and Pigott, BB.), that, upon the finding of the jury, the court could 
 not decide whether the plaintiff was entitled to the damages claimed or not. 
 Held (per Martin, B.), that the. plaintiff was entitled to the damages claimed. 
 Wilson v. Newport Dock Co., N. S. v. 748. 
 
 153. Hadley v. Baxendale, 9 Exch. 341, commented upon. Id. 
 
 154. The damages ordinarily recoverable for breach of contract, are those 
 necessarily following the breach. Coal Co. v. Foster, N. 6. viii. 368. 
 
 155. The failure of an engine builder to furnish at a fixed time, according to 
 contract, to a coal company a suitable engine for transporting their coal, entitles 
 them to damages for their expenses in such transportation, with the means they 
 had, or the best they could procure during the period of delay, beyond what they 
 would have incurred with the engine. Id. 
 
 156. Where the defendant failed to notify the plaintiff of his determination 
 not to accept an engine furnished under agreement that it should be satisfactory, 
 and allowed defects to be remedied, it was held to be a waiver of all claims for 
 damages on account of such defects. Cassidy v. Le Feme, N. S. x. 124. 
 
 157. The measure of damages on the breach of a covenant of seisin where 
 grantee receives no title, is the cosideration-money with interest. Lacey v. ilar- 
 nan, N. S. xii. 536. 
 
 22 
 
338 ■ DAMAGES. 
 
 158. In order to entitle a party who claims a sum of money in gross, stipu- 
 lated to be paid for breach of an agreement, to recover it as liquidated damages, 
 he must show that it was so considered and intended by the contracting parties. 
 Davis r. GiUett, N. S. xii. 659. 
 
 159. Whenever the stipulation for payment for breach of contract is a mea- 
 sure to determine a damage which would otherwise be uncertain and difficult to 
 ascertain, it is a liquidation of damages and' not a penalty. Wolf Creek Coal 
 Co. V. Sehultz, N. S. xii. 785. 
 
 160. For breach of contract to lease a dye-shop and furnish plaintiff work, the 
 latter to put in fixtures, the plaintiff is entitled as damages to be put in the 
 same position as if contract had not been made. Garsed v. Turner, N. S. xii. 
 785. 
 
 161. For refusal to receive deed and pay for the land, is the difference between 
 price agreed to be paid and the real value of the land when the contract was 
 broken. Griswold v. Sabin, N. S. xii. 328. 
 
 162. In an action of covenant by the assignee of convenantee, the measure of 
 damages is the consideration which the assignee paid to his grantor, with interest 
 from the eviction, and costs in an ejectment suit. Crisfield v. Storr, N. S. xii. 
 55. 
 
 163. Nominal damages on a contract for delivery of stock, already sold by 
 vendor's agent, without his knowledge. Wilson v. Whitaker, N. S. v. 123. 
 
 164. For breach of contract to make lumber, is the difference between the cost 
 of making and contract price. Hale v. Trout, N. S. viii. 503. 
 
 165. Rule for, on breach of contract to sell real estate, is the difference be- 
 tween contract price and the value of the premises. Pringle v. Spaulding, N. S. 
 viii. 570. 
 
 166. Where an agreement in writing for the sale of land stipulated that on 
 a failure by either party to perform he should pay the other $5000, which was 
 declared to be liquidated damages, it will be held so to be. Leggett v. Mutual 
 Life Ins. Co. of New York, N. S. xii. 401. 
 
 167. Person in possession of land under contract to purchase may maintain 
 action for injury to his interest. Honsee v. Hammon, N. S. ii. 764. 
 
 168. For failure to deliver specific articles contracted for. White v. Tompkins, 
 N. S. vi. 635. 
 
 169. When contract is to pay sum of money in specified articles. Id. 
 
 170. Amount of, upon warranty of a safe. Note to Sanborn v. Herring, N. 
 S. vi. 464. 
 
 171. The measure of damages for non-performance of a contract to pay money 
 is the number of legal dollars, without regard to stipulations as to the kind of 
 money by which the contract was to be discharged. Buchegger v. Sehultz, N. S. 
 V. 9.5'. 
 
 172. For breach of contract to pay is the amount that would have been re- 
 ceived. Wicker V. Hoppuck, N. S. vii. 377. 
 
 173. How far vendor of real estate, failing to make title, liable to purchaser 
 in damages. Note tu Locke v. Furze, N. S. vi. 49. 
 
 V. Excessive Damages, and herein of Exemplary and Vindictive Dam- 
 ages . 
 
 174. Where a negro slave, confined in jail on the charge of rape and murder, 
 was taken by the defendants, acting in concert with a mob, from the sheriff 's 
 custody and hanged, it is such a deliberate, premeditated and violent destruction 
 of the plaintiff's property as to entitle him to vindictive damages., Polk v. 
 Fancher, 0. S. vii. 675. 
 
 175. It is not permitted to prove in such cases, in order to diminish the pecu- 
 niary value of the slave, that he was apprehended for rape and murder ; was in- 
 famous, and therefore of no value. Id. 
 
 176. What are exemplary damages. FreJenheit v. Edmondson, N. S. v. 447, 
 
 177. But if it should appear that he was wanting in reasonable care to prevent 
 abuses, he would be liable to increased damages for his own misconduct, which 
 might fairly be regarded as identifying him with faults which he took no pains to 
 suppress. Daily Post Co. v. McArttmr, N. S. vii. 462. 
 
 178. Smart-money may be allowed as damages in actions of tort founded on 
 the malicious or wanton misconduct or culpable llegligence of the defendant. 
 Welch V. Durand, N. S. x. 566. 
 
DAMAGES. 339 
 
 179. The expenses of litigation may be taken into consideration m assessing 
 the damages in any case where smart-money may be allowed. Welch v. JDarand, 
 N. S. X. 566. 
 
 180. Where the defendant fired a pistol, the ball of which glanced and hit the 
 plaintiff, and it was found that the injury was unintentional, but was the result 
 of gross and culpable carelessness on the part of the defendant, it was held, (1.) 
 That trespass vi et arnn's would lie. (2.) That the expenses of the litigation 
 might be considered in awarding damages to the plaintiff. Id. 
 
 181. The term " exemplary or vindictive damages," should not be used with- 
 out such explanation as may prevent a jury from being misled by it. For vol- 
 untary wrongs additional damages are allowed for injured feelings, but nothing 
 beyond the individual grievance should be taken in account in estimating them. 
 Daily Post Co. v. McArthir, N. S. vii. 462. 
 
 182. In the absence of evidence of wanton or malicious wrong in seizing the 
 goods, exemplary damages should not be allowed. Wanamaker v. Bowes, N. S. 
 xii. 61. 
 
 183. Laying out of view what may be recovered in trespass for outrage or op- 
 pression In the taking, there is no difference in the measure of damages whether 
 the action be trespass or trover. McEnroi/ v. Dyer, N. S. iv. 166. 
 
 184. Exemplary are only to be given in case of fraud, malice, gross negli- 
 gence, or oppression. Cram v. Sadley, N. S. viii. 439. 
 
 185. The imposition of a fine in a criminal proceeding for assault and battery 
 is no bar to exemplary damages in a civil suit for same act, Hoadley v. Watson, 
 N. S. xii. 400. 
 
 186. The expenses of plaintiff for counsel fees and other trouble in the suit, 
 are not an element of exemplary damages. Id. 
 
 187. Vindictive, for illegal arrest and false imprisonment, should be allowed 
 I against a peace officer, only where the arrest was made in bad faith, Hamlin v. 
 
 Spaulding, N. S. ix. 123. 
 
 . 188. Whether in any civil action , exemplary, punitory or vindictive damages may 
 
 be recovered, gucere. Fay v. Parker, N. S. xiv. 121. 
 
 189. The assessment of damages on an interlocutory judgment by default, 
 under the 71st section of Practice Act of New Jersey, applies only to actions of 
 assumpsit. Peacock v. Haney, N. S. xiv. 121. 
 
 190. Exemplary damages may be recovered in trespass. Edwards v. Leavitt, 
 N. S. xiii. 719. 
 
 191. A registered voter whose vote has been wilfully, corruptly and fraudu- 
 lently refused by the judges of the election, is entitled to recover such exemplary 
 damages as the jury may consider proper. Elhin v. Watson, N. S. ix. 408. 
 
 192. In an action of crim. con., the defendant may prove the adulterous con- 
 duet of the husband, in mitigation of damages, but not in bar of the action. 
 Rea V. Tucker, N. S. ix. 642. 
 
 VI. Eemoteness of Damage. 
 
 193. Damage to be recovered must be both the natural and proximate conse- 
 quence from the wrong complained of, and not from the wrongful act of a third 
 party remotely induced thereby. Cuff v. N. Sf N. Y. Railroad Co., N. S. ix. 
 541. 
 
 194. The intervention of the independent act of a third person, between the 
 wrong complained of and the injury sustained, which act was the immediate 
 cause of the injury, is made a test of that remoteness of damage which forbids 
 recovery. Id. 
 
 195. A person is answerable for the consequences of his fault only so far as 
 they are natural and proximate, and therefore may be foreseen. Fairbanks v. 
 Kerr, N. S. xii. 400. 
 
 196. Rule as to remoteness of damages discussed. Wilson v. Newport Dock 
 Co., N. S. ». 748. 
 
 197. Damage feasant — impounding cattle for. See Goodwyn v. Chaveley, 0. 
 S. vii. 684. 
 
 198. Damages for breach of contract when the amount to be forfeited is speci- 
 fied. See Lynde v. Thompson, N. S. i. 247. 
 
 VII. Meabuhe op Damages. 
 
 199. Where a breach of contract has been compromised, the only damages 
 that can be recovered are the terms of the compromise. Union Locomotive Co. v. 
 Erie Railway, N. S, xiii. 391. 
 
340 DAMAGES. 
 
 200. An agreement m the sale of property that in case of default any payments 
 made shall be retained, will not be enforced by the law as stipulated damages. 
 Johnston V. Whittemore, N. S. xiii. 391. 
 
 201. Where property is tortiously taken the owner is entitled to full compen- 
 sation in damages. Dalton v. Landahn, N. S. xiii. 391. 
 
 202. A subsequent sale to the trespasser on legal process cannot be shown to 
 redtice the damages. Id. 
 
 203. It is different if the sale is to some other one than the trespasser. Id. 
 
 204. A negl-o apprentice cannot recover damages from his master, for enlist- 
 'ing him as a substitute for his son, who had been drafted. Gent v. Cole, N. S. 
 xiii. 256. 
 
 205. Evidence of the price of substitutes is not admissible, as furnishing any 
 criterion for assessing damages. Id. 
 
 206. A town, liable for damages from insufficiency of a highway, is not en- 
 titled to have the amount received by the plaintiff from' an insurance company, 
 deducted from the amount of its liability. Harding v. Town of Toumshend, N. S. 
 xi. 128. 
 
 207. The conduct and words of a defendant after suit brought, is not an ele- 
 ment of damages in an action of slander. Stitzell v. Reynolds, N. S. xi, 133. 
 
 208. Instructions to the jury that " If the contract was broken by the defend- 
 ants, the plaintiff is entitled to be put in the same position, pecuniarily, a,s he 
 would have been if the contract had been kept, regard being had to the fact that 
 plaintiff soon after obtained other employment: Held correct. Garsed v. Tur- 
 ner, N. S. xi. 259. 
 
 209. In an action of slander where no special damage is alleged, the jury may 
 give general damages for whatever is the necessary and natural result of the 
 words spoken. Miles v. Harrington, N. S. xi. 336. 
 
 210. In slander, for words per se actionable, damage is presumed without 
 proof of actual damage. Id. 
 
 211. In such action the jury are to decide if exemplary damages are. to be 
 given. Id. 
 
 '212. An agreement that if either party to a contract failed to perform his part, 
 he should forfeit $1000^ is a penalty and not liquidated damages. Lee, Wylly Sf 
 Co. V. Overstreet, N. S. xi. 395. 
 
 213. No general rule can do exact justice in all cases of failure to deliver 
 property to the vendee. Chadwick v. Butlers, N. S. xiii. 455. 
 
 214. The vendee is entitled to the value of the goods at the time they should 
 have been delivered. Id. 
 
 215. It is error to allow evidence of the highest market price between the time 
 of sale and bringing suit. Id. 
 
 216. The measure of damages where vendor fails to comply with his contract 
 is difference between the contract and market price at time of breach. McHose 
 V. Fulmer, N. S. xiii. 523. 
 
 217. When the article cannot be obtained, the measure is the actual loss vendee 
 sustains. Id. 
 
 218. On refusal of vendee to accept goods sold him, the damages are difference 
 between contract and market price at time of refusal. Laubach v. Laubach, N. 
 S. xiii. 523. 
 
 219. Where contract is that vendee may rescind, damages are price paid and 
 interest. Id. 
 
 220. A contractor for transportation cannot recover damages for the loss of 
 profits by failure of the United States to furnish the amount of freights they gave 
 him notice they would require. Bulkley v. United States, N. S. xiii. 588. 
 
 221. He is entitled to recover for his extra expense. Id. 
 
 222. Prospective damages arising from loss of time, doctoring, &c., if reduced 
 to their present worth, may be given for personal injuries. Fulsome v. Town of 
 Concord, N. S. xiii. 714. 
 
 223. The measure of damages in an action brought to recover the value of 
 certain United States bonds, payable in gold, deposited with a banker and never 
 returned, is the value of the bonds at the time of demand, and the value of the 
 gold interest from the day the same was payable, with interest on the value of 
 the several instalments of such gold interest, due semi-annually. Maury v. 
 Coyle, N. S. xi. 52. 
 
 224. Where there is neither fraud, malice, gross negligence, nor oppression, 
 
DAMAGES. 341 
 
 damages will be confined to compensation for the injury. Belknap v. Boston Sf 
 Maine Railroad, N. S. xi. 55. 
 
 225. Where exemplary or punitory damages are to be given, the condition and 
 circumstances of the defendant may be material, but otherwise not. Id. 
 
 226. Excessive damages are a ground for setting aside a verdict. Id. 
 
 227. So where the damages are too small. Id. 
 
 228. The measure of damages for refusal to convey is the same as in the case 
 of sale of personal property, and is the difference between the contract price and 
 the market value at the stipulated time of delivery. King v. Ruckrmn, N. S. 
 xiii. 63. 
 
 229. The rule by which damages are to be assessed against a carrier is the net 
 value of the goods lost. Bazin v. Liverpool and Phila. Steamship Co. , 0. S. v. 459. 
 
 230. The damages would be the value of the bonds, with interest, if the 
 pledgee refuses to deliver them after the payment of a loan. Roberts v. Berdell, 
 N. S. xi. 262. 
 
 231. The contract price of goods, the measure- of damages. Gordon v. Norris, 
 N. S. xi. 271. 
 
 232. Where land is taken for public use, in the absence of any special pro- 
 vision, only the quantity of the land appropriated, the place where it lies, with 
 reference to external circumstances, and the form in which it is taken, can enter 
 into the estimate of the damages. Woodfolk v. Nashville and Chattanooga Rtiil- 
 road Co., 0. S. i. 550. 
 
 233. The measure of damages for a cargo, shipped from a port where gold was 
 10 per cent, above legal tender notes, is the value of the cargo in gold the day 
 of shipment, converted into legal tender notes at the rate they stood at the day 
 of shipment. The Vaughan and Telegraphy's. S. xii. 124. 
 
 234. If the jury find that prosecution originated without probable cause, they 
 may give punitive damages. Cooper v. Utterbach, N. S. xii. 789. 
 
 235. In an action by vendee against vendor, for breach of contract, where ven- 
 dee has made improvements, the measure of damages is the difference between 
 the unpaid purchase-money and the value of the lands at the time of the breach. 
 Case V. Wolcott, N. S. x. 670. 
 
 236. Plaintiff was promised that if she would stay with decedent as long as he 
 lived, he would give her plenty after he was gone, so that she need not work, the 
 measure of amount would be what would keep plaintiff without work. Thompson 
 V. Stevens, N. S. xii. 727. 
 
 237. The measure of damages in an action for failure 'to transport, where 
 plaintiff could not procure another conveyance, does not apply where such con- 
 veyance might have been obtained. Grund v. Pendergast, N. S. x. 405. 
 
 238. Where real estate was bought at a judicial sale, the purchaser falsely 
 giving notice that he was bidding for the owners, measure of damages is the ad- 
 vance received on re-sale. Hord v. Crutcher, N. S. vi. 165. 
 
 239. In an action for non-delivery of stock, the measure of damages is the 
 highest value of the stock between the time of the sale and the time of trial. 
 Markham v. Jaudon, N. S. ix. 285. 
 
 240. Damages on dishonored bill on London. Wood v. Watson, N. S. vi. 566. 
 
 241 . Kule thereof can not be varied on account of depreciation of cur^-ency. /(/. 
 
 242. Adoption of signature to a note with knowledge that it was forged — rule 
 of damages. Semble, same rule applies where defendant is estopped from denying 
 the signature. Bank v. Keene, N. S. vi. 249. 
 
 243. Damages from insufficiency of highway. Connary v. Jefferson, N. S. 
 vi. 317. 
 
 244. The measure of damages for the loss of a minor child by negligence. 
 Caldwell et ux. v. Brawnet al., N. S. vi. 752. 
 
 245. The measure of damages for injury resulting from want of professipnal 
 skill in a physician, is the pecuniary loss of the plaintiff. Braunberger v. Cleis, 
 N. S. iv. 587. 
 
 246. Where gold coin was deposited as security and not returned. Frothing- 
 ham V. Morse, N. S. v. 698. 
 
 247. Rule for establishing damages in case of partial loss on policy made here 
 on goods in foreign country. Burgess v. Insurance Co., N. S. v. 511. 
 
 248. Measure of damages, where a boy eight years of age was injured on 
 street railway car. Dreio v. Sixth Avenue Railroad Co., N. S. iii. 498. 
 
 249. The measure of damages for one who, being deprived of pasturage for 
 
342 DAMAGES— DEATH. 
 
 his cattle, pastures them on his meadow, is what was the value of the meadow- 
 land as meadow. Gilbert v. Kennedy, N. S. xi. 600. 
 
 250. The measure of damages for the non-payment of money, or the non-de- 
 livery of a debtor's obligations for money, is the amount due and interest, and 
 as an almost universal rule no collateral damages can be given. City of Mem- 
 phis V. Brown, N. S. xi. 629. 
 
 251. Such bonds or obligations are to he treated as if they were chattels and 
 things in esse, and the damages for failure to provide the fund will be the differ- 
 ence between the value of the bonds as they were agreed to be made and the 
 value as they were in fact made. Id. 
 
 252. The measure of damages is the face of the bill and interest. American 
 Express Co. v. Dunlevy, N. S. iii. 266. 
 
 253. Measure of damages for false imprisonment. Brown v. Chadrey, N. S. 
 iii. 61. 
 
 254. Instruments payable in " current banli notes," measure of damages. 
 Osgood V. McConneU, N. S. iv. 439. 
 
 255. In action against sheriff for failing to collect an execution, the measure 
 of damap:es is the actual loss to the plaintiff by the sheriff's neglect. French v. 
 Snyder, N. S. iii. 312. 
 
 256. The measure of damages the loss actually sustained by the pledger. 
 Johnson V. Stear, N. S. iii. 753. 
 
 DEAN, AMOS ; obituary notice and sketch of his life. N. S. vii. 257. 
 
 DEATH. 
 
 1. A gift of all the donor's property, in prospect of death is a will, not a 
 donatio causa mortis. It is not valid unless executed either as a written or as 
 nuncupative will. Headley v. Kirby, O. S. i. 25. 
 
 2. Evidence to rebut presumption of, from seven years' absence. Flynn v. 
 Coffee, N. S. vi. 318. 
 
 3. Presumption of, does not begin till the end of seven years. Clarke v. Can- 
 fidd, N. S. vi. 573. 
 
 4. An action cannot be maintained by the administrator, or other personal 
 representatives of a deceased party, under the statute of March 25th 1851, re- 
 quiring compensation for causing death by wrongful act, neglect or default, 
 when the act causing the death occurred without the state. Campbell, Adminis- 
 tratrix, V. Rogers, 0. S. iv. 747. 
 
 5. That statute applies only to such cases where the wrongful act, neglect, or 
 default, causing death, has occiirred within the state. Id. 
 
 6. Where one on his death-bed expresses a wish to his heir at law that certain 
 persons, whom he names, shall receive of his estate specified articles and sums 
 of money as gifts from him, and the heir promises him that his request shall be 
 fulfilled, the necessary implication is, that the promise is to be performed after 
 the death of the promisee, and that the consideration is that the promisor shall 
 succeed to his estate under the intestate laws. The law implies the consideration 
 from these facts, and the consideration failing by disinheritance or otherwise, the 
 heir would be released. Parker v. Urie's Executors, 0. S. i. 632. 
 
 7. Gifts in view of. 0. S. i. 1. See Donatis Causa Mortis ; and see 
 Headley v. Kirby, 0. S. i. 25. 
 
 8. An action, under Pennsylvania Act of 1855, providing a remedy in case of 
 death by violence or negligence, can only be maintained by the persons enumer- 
 ated in the act itself, viz. : the husband, the widow, the parents, the children. 
 Coakley v. North Penna. Railroad, O. S. vi. 355. 
 
 9. In estimating the damages, the injury done to the party living caused by 
 the death is the measure, and no compensation can be claimed for the suffering 
 of the decedent. Id. 
 
 10. No compensation can he allowed for the distress and anguish which the 
 plaintiff may be supposed to have suffered, but any expenses to which the plain- 
 tiff may have been subjected should be included in the verdict. Id. 
 
 11. Suggestions as to the pecuniary value of life ; estimable value of life must 
 be determined by the jury. Id. 
 
 12. Exemplary damages should not be given, unless defendant has been guilty 
 of fraud, oppression, gross negligence, malice, &c. Id. 
 
 13. In an action for damages by a father for the death of his son, actual dam- 
 age must have accrued from the death of deceased. The relationship does not 
 give a right to nominal damages. Duckworth, Adm'r, v. Johnson, O. S. vii. 630. 
 
DEATH— DEBTOK AND CREDITOR. 343 
 
 14. When absence from place for seven years raises presumption of death. 
 Stinclifield Y. Emerson, N. S. vi. 186. 
 
 15. A deed of partnersliip contained a clause enabling one of the partners to 
 determine the partnership on giving to the other three months' notice. Before 
 the expiration of the three months the partner who gave the notice died. Held, 
 that the partnership was determined by and on the death of the partner, irrespect- 
 ive of the notice. Bell v. Ncvin, N. S. vi. 181. 
 
 • 16. Father claiming title must show death of son without issue. Stlnchfidd 
 
 V. Emerson, N. S. vi. 186. 
 
 DEBT. 
 
 1. The claim for dividends improperly declared by an insolvent banking cor- 
 poration, belongs to creditors and not to receiver. Butterworth v. O'Brien, N. 
 S. iii. 60. 
 
 2. A money consideration recited in a deed is primS. facie the true one, but a 
 judgment-creditor may rebut the presumption. Amsden v. Manchester, N. S. 
 iii. 318. 
 
 3. Debt contracted in a foreign country is payable there, and in the legal cur- 
 rency of that country. Benners v. Clemens, N. S. viii. 630. 
 
 4. Railroad fare, even when demanded in advance, is so far a debt that it i3 
 payable in legal tender notes. Lewis v. Railroad Co., N. S. vii. 511. 
 
 5. The fare of a passenger on a railroad is a debt within the Acts of Congress 
 called the Legal Tender Acts. Lewis v. Railroad Co., N. S. vi. 703. 
 
 6. A ground-rent is a debt, under the Act of Congress of February 25th 1862. 
 Sckollenberger v. Brinton, N. S. vi. 636. 
 
 7. The sura to be paid for the extinguishment of ground-rent is not an estate, 
 but a debt when the owner of the land has elected to pay it. Sckollenberger v. 
 Brinton, N. S. iii. 591. 
 
 8. Gold coin has no greater value than currency, if applied to payment of debt 
 without any special contract as to sale. thereof. Bush v. Baldrey, K. S. vi. 122. 
 
 9. A discharge under the insolvent laws of one state will not discharge a debt 
 to a citizen of another state. Baldwin v. Hale, N. S. iii. 462. 
 
 10. Attachment by creditor of an insolvent's property in another state, it is 
 the duty of the court, in the exercise of a sound judicial discretion, to enjoin 
 the creditor from proceeding with his suit, if thereby the property will come to 
 the hands of the assignees in insolvency. Dehon v. Forster, N. S. iii, 506. 
 
 11. In trespass for taking property of a firm of which the wife was a member 
 for husband's debt, it is necessary for the plaintiffs to show that the interest of 
 the female plaintiff in the goods was her separate estate. Duress v. Ilomeffer, 
 N. S. iii. 509. 
 
 12. Rent of real estate bought by married woman cannot be attached by cred- 
 itor of the husband. Goffv. Nuttall, N. S. iii. 309. 
 
 13. Creditor cannot contest validity of conveyance by his debtor in an action 
 by grantee against such creditor for trespass by execution against the land. 
 Garbutt v. Smith, N. S. iii. 188. 
 
 14. A person buying debentures of a joint-stock company is bound to ascertain 
 whether they are tainted with fraud or irregularity ; and in such a case the facts 
 of the assignment having been registered and of interest having been paid, make 
 no difference unless the shareholders can be shown to have acquiesced. Athe- 
 naeum Life Ins. Co. v. Pooleij, 0. S. vii. 509. 
 
 15. No defence that the debt arose from receipt of worthless bills, where defend- 
 ant did not suffer from them. Orchards v. Hughes, N. S. iii. 694. 
 
 16. Debts privileged — an essay upon, 0. S. ix. 512. 
 
 DEBTOR AND CREDITOR. See Assignment. 
 I. Of the eight of Appeopeiation. 
 
 1 . Debtor and creditor — see article on the appropriation of payments, 0. S. 
 iii. 705. . 
 
 2. Appropriation of payments to wages and profits between employer and 
 employee or his attaching creditor. Smith v. Brooke, N. S. v. 129. 
 
 3. if nothing is said, the creditor has the right to apply a payment to such 
 indebtedness as he sees fit. Woods v. Sherman, N. S. xii. 791. 
 
 4. A court of equity has jurisdiction to take charge of the property of a for- 
 eign corporation. Murray v, Vanderbilt, N. S. ii. 765. 
 
344 DEBTOR AND CREDITOR. 
 
 5. Mortgage to secure all existing detts without naming them is not Toid for 
 uncertainty. Michigan Ins. Co. v. Brown, N. S. iii. 46. 
 
 6. Payment by one of joint debtors, the Indorsement must be held to have 
 been made by the direction and consent of J. G., one of the defendants, and was 
 a payment by him which prevented his Interposing- the defence' of the Statute of 
 limitations. HawJeyr. GriswoM, N. S. iv. 188. 
 
 7 . Judgment by default against a creditor sued as trustee or garnishee, is no 
 such acknowledgment of the debt as will take it out of the statute. Goodwin v. 
 Buzzell, N. S. iv. 56. 
 
 8. If mortgagor performs labor in payment, the debt remains until the actual 
 application of the wages to the discharge ; and if such application has nCt been 
 made, mortgagor may have bill to redeem. Doody v. Pierce, N. S. iv. 766. 
 
 9. Of personalty to secure future indebtedness not valid against a judgment- 
 creditor of mortgagor for claims accruing after his suit. Barnard v. Moore, N. 
 S. iv. 116. 
 
 10. A mortgage of personal property given to secure future debts not •A'alid 
 against a judgment-creditor. Id. 315. 
 
 11. A., being indebted to B., for illegal consideration gives a note and mort- 
 gage to B.'s creditor, O. , who has knowledge of the illegality of the debt to B., 
 such mortgage and note are invalid. Baker v. Collins, N. S. iv. 505. 
 
 12. In distribution of proceeds of sheriff's sale, only those creditors asking 
 , issue can have benefit therefrom. Shick's Appeal, N. S. v. 253. 
 
 1 3. Payment of less by third ijerson and acceptance by creditor, may be pleaded 
 by debtor in satisfaction of entire demand. Babcock v. Dill, N. S. r. 185. 
 
 14. Effect of payment of note given to induce creditors to sign compromise. Id. 
 
 15. Where a creditor of I", had insured his life for a sum not exceeding his 
 debt, and before F.'s death action upon the debt was barred by the Statute of 
 Limitations, the insured was entitled to recover from the company. Rawls v. 
 American Life Ins, Co., N. S. iii. 167. 
 
 16. In such case the debt still exists, and is not extinguished, as in the case 
 of payment. Id. 
 
 17. Where there is no conflict with t'he claims of domestic creditors, the 
 assignees of a foreign bankrupt may sue in the United States courts for property 
 of their bankrupt. Hunt v. Jackson, N. S. vi. 169. 
 
 18. Where a judgment-creditor levies an execution from a state court, and the 
 debtoT files a petition in bankruptcy, the Court of Bankruptcy may either allow 
 the creditor to proceed with the execution, or may enjoin him and direct the 
 assignee to take possession and sell the goods, with leave to the creditor to apply 
 for an order directing the payment of his judgment out of the proceeds. Matter 
 of Schneff's Case, N. S. vii. 204. 
 
 19. Where the debtor and the creditor's known agent to receive the money 
 ( reside in the same jurisdiction, the fact that the creditor is a citizen of a power at 
 
 war with the debtor's government, and resident in the hostile state, does not 
 absolve the debtor from his obligation to pay, and if he does not he is liable for 
 interest. Ward v. Smith, N. S. viii. 354. 
 II. Of Assignments pok the benefit op Creditoes, and how far Deetob 
 
 MAY PEEPER A CrEDITOE, AND HEREIN OP THE KiSHTS AND DcTIES OF 
 
 Assignees. 
 
 20. An assignment for the benefit of creditors is not void per se. Johnson, 
 Garnishee; v. IngersoU, N. S. x. 473 ; and as to fraudulent assignment, see Jolm- 
 son V. Laughlin, N. S. x. 473. 
 
 21. Property held under a valid assignment is not subject to attachment. Id. 
 
 22. An attachment will be sustained against a debtor who has assigned his 
 property to defraud his creditors. Johnson v. ■Laughlin, N. S. x. 473. 
 
 23. An assignee and creditors are not purchasers for value within the Record- 
 ing Act of March 18th 1775. Spackman v. Ott, N. S. x. 534. 
 
 24. Payment by debtor to creditor before debt is due, to aid creditor to prevent 
 his creditors from attaching the debt, is not void in Vermont. Fleirher v. Pills- 
 bury, N. S. iv. 56. 
 
 25. Personal liability of assignees of a lessee for use and occupation. Jer- 
 main v. Pattison, N. S. vi. 118. 
 
 26. Debtor in failing circumstances may prefer one creditor to another. Car- 
 penter V. Muren, N. S. iv. 255. 
 
 27. It seems the declarations of an assignor for the benefit of his creditors, 
 
DEBTOR AND CREDITOR. 345 
 
 made prior to the assignment, are evidence against tlie assignee. McBride y. 
 Dorman, N. S. vi. 736. 
 
 28. A voluntary assignment of personalty, valid in the place of contract, will 
 not be upheld when opposed to the positive laws of the place where the property 
 is situated. GuiUaudet v. Howell, N. S. vi. 522. 
 
 29. A firm residing and doing business in New York, made a voluntary as- 
 signment for the benefit of creditors, which included (inter alia) personal pro- 
 perty in New Jersey. By the law of the latter state this assignment was void, 
 because it gave preferences. After the assignment, the property was attached at 
 the suit of creditors in New Jersey,, against whom an action was afterwards 
 brought by the assignee of the insolvent firm. Held, that the title acquired under 
 the attachment must prevail over the assignment. Id. 
 
 30. What is not a counter claim by assignee for creditors, in an action against 
 him for an account. Duffy v. Duncan, N. S. vi. 315. 
 
 31. Assignee must prove the estate benefited by money paid out, to have credit 
 therefor. Id. 
 
 32. Value of assignee's services and compensation therefor. Id. 
 
 33. A voluntary assignment for the benefit of creditors, if made in accordance 
 with the law of the assignor's domicile, is effective to' pass the personal property 
 of such assignoi" wherever situated, unless restrained by some local law. Han- 
 ford V. Paine, O. S. ix. 553. 
 
 34. Simple contract creditor cannot set aside assignment. Coope v. Bowles, 
 N. S. iv. 122. 
 
 35. One sui juris cannot, as against creditors, settle his property in trust for 
 his own use for life, and over to his appointees by will. Mackason's Appeal, N. 
 S. ii. 504. 
 
 36. A conveyance intended to delay a creditor, even temporarily, is void. 
 Swmt V. Tinslarr, N. S. viii. 442. 
 
 37. Where a debtor assigns all his iron works to a trustee, in trust to carry 
 them on and sell the iron as long as the creditors might determine it for their 
 interest, and the trustee advances money and makes a quantity of iron, a 
 judgment-creditor of the assignor could not seize the iron so made, though 
 he did not assent to the assignment. Peters v. Light, N. S. xiv. 582. 
 
 38. The stipulation that trustee should manufacture iron so long as the credit- 
 ors determined it was for their interest, was void. Id. 
 
 39. Such stipulation did not delay or hinder creditors. Id. 
 
 40. An assignment by a debtor of all his property in trust for the payment of 
 his debts, is an exercise of ownership by virtue of the common law and is valid, 
 irrespective of any insolvent laws. Cook v. Rogers, N. S. xiv. 633. 
 
 41. Hence the fact that the passage of a National Bankrupt Act has ipso facto 
 suspended the insolvent laws of the state, does not make such an assignment 
 void, so that a creditor can by a proceeding in the state court attach the property 
 in the h^nds of the assignee. Id. 
 
 42. Whether such an assignment is an act of bankruptcy which will give the 
 Federal courts jurisdiction to set it aside and assume the administration of the 
 estate under the Bankrupt Law, is a different question, which can only be raised 
 in the bankruptcy court. Until action by the latter the state court will sustain 
 the validity of the assignment. Id. 
 
 43. A party who gives up to his debtor his note or check past due and dishon- 
 ored, is a holder for value of the check received. McBride v. Dorman, N. S. vi. 
 736. 
 
 44. Where a person, in consideration of receiving from his debtor the note of 
 a third person, gives up a note of his debtor, which is past due, it Is equivalent 
 to an agreement on his part to cancel the existing indebtedness, and to rely there- 
 after upon the obligation which he has taken in its stead. Id. 
 
 45. A creditor of a decedent cannot be prejudiced by the failure of the com- 
 missioners of the probate court to present his claim for allowance. Dickey v. 
 Corliss, N. S. viii. 504. 
 
 III. Op Voluntabt Dkeds, Bonds and Judgments given to DErnAUD Cred- 
 itors, AND HEREIN OF THE VALIDITY OI' SaLES OF GOODS AS AGAINST CRED- 
 ITORS AND Others. 
 
 46. A voluntary assignment made by a debtor under failing circumstances, is 
 void, if it contain a clause authorizing the' assignee to sell the assigned property 
 on credit, because it is calculated to hinder and delay creditors, and reserves to 
 
346 DEBTOR AND CEEDITOR. 
 
 the debtor or the assignee of his own choice, tlie absolute control over the debtor's 
 property, which in justice belongs to the creditor, to determine wlien the debt 
 shall be paid. Nicholson v. Leavitt, O. S. i. 181. 
 
 47. If an insolvent debtor takes notes payable to his wife where the consider- 
 tion moves from him, with intent to delay his creditors, the notes will be treated 
 as an assignment to the wife and fraudulent as to creditors. Reppy v. Reppy, N. 
 S. X. 65, 
 
 48. Although one may have intended to defraud the creditors of another by 
 taking and converting his property into cash, such intention will become harmless 
 by his subsequently delivering the proceeds of sale to the debtor or his wife. 
 Cramer, Receiver, ifc, v. Blood, N. S.'x. 65. 
 
 49. To constitute an indirect conveyance of real estate to a married woman by 
 her husband within the meaning of E. S., c. 61, 'i 1, Maine, the deed from him 
 must be one step in the conveyance to her, for her benelit. Bean v. Bootliby, N. 
 S. X. 67. 
 
 50. Only a judgment creditor can seek relief in equity, on the ground that real 
 estate paid for by bis debtor has been fraudulently conveyed to his wife. Griffin 
 V. Nitcher, N. S. x. 68. 
 
 51. To avoid a sale upon the ground that it was fraudulent as to creditors, it 
 must appear that both the vendor and vendee were parties to the fraud. Gridley 
 v. Bingham, N. S. a. 127. 
 
 52. The conveyance of a party's property to his creditor is satisfaction of his 
 debt, and then receiving back security for the support of himself and wife for life 
 is fraudulent and void as to the grantor's creditors. Morrison v. Morrison, N. S. 
 X. 197. 
 
 53. A wife who had commenced proceedings for divorce, was held to stand in 
 the relation of creditor and might avoid the conveyance. Id. 
 
 54. A subsequent or even contemporaneous attempt to convey or encumber 
 property so as to delay creditors, cannot affect a mortgage fairly given to secure 
 a bon^ fide creditor. Siillman v. Stitlman, N. S. x. 346. 
 
 55. In Massachusetts a court of equity will set aside a fraudulent assignment 
 by a debtor of his choses in action to enable a creditor to proceed against them. 
 Tantum v. Green, N. ti. x. 346. 
 
 56. The creditor is entitled to have mortgage-debts due the judgment-debtor 
 collected by a receiver. Id. 
 
 57. An assignee to be protected must have purchased for value and without 
 notice. Id. 
 
 58. The intention to prevent creditors from recovering their just debts by an 
 act which withdraws the debtor's property from their reach, is fraud in fact. Mc- 
 Kibbin V. Martin, N. S. x. 406. 
 
 59. Where a husband takes the title to land paid for by the wife, and then con- 
 veys to another according to agreement, it is not a fraud on his creditors, tucktit 
 V. Spencer, N. S. x. 533. 
 
 60. If a creditor would hold land conveyed to the wife by husband's grantee 
 paid for out of husband's property, he must proceed by bill in equity and not by 
 levy. Webster v. Folsom, N. S. x. 603. 
 
 61. The New York Statute of Uses and Trusts only makes conveyances fraud- 
 ulent and void as against creditors of the grantor at the time of the conveyance. 
 Lovemore v. Campbell, N. S. x. 744. 
 
 62. Even though voluntary, it may be upheld against subsequent creditors. 
 Id. 
 
 63. Where a father purchased land, and paid part of the purchase-money, and 
 then gave it to his sons, which act was a fraud upon creditors on his part, but 
 not so on the part of the sons, and the creditors afterwards sold the land on exe- 
 cution as the property of the father, it was held, that the sheriff's vendees, who 
 were substituted for the creditors, had no other right against the sons than they 
 would have had against tlie vendor, and could not claim the land without ten- 
 dering the balance of the purchase-money and interest. Ogle v. Lichteberger, O. 
 S. i. 121. 
 
 64. The law will not permit a man owing debts to devote his capital, industry 
 or credit, to the accumulation of property to be held by a third person for the 
 benefit of himself or family, to tlie exclusion of his creditors. Waddingham's 
 Executors v. Taker, N. S. ix 193. 
 
 65. A grantee of chattels will not be affected by an Intent to delay creditors 
 
DEBTOR AND CEEDITOE. 347 
 
 on the part of the grantor, if such fraudulent intent was unknown to him. 
 Atwood V. Impson, N. S, ix. 320. 
 
 66. Money deposited in bank for the benefit of a creditor, without his authority, 
 is not a payment of a debt. Freeholders v. Thomas, N. S. ix. 320. 
 
 67. Where debtors, immediately before an assignment, buy goods they do not 
 intend to pay for, it is sufficient to warrant the finding of a fraudulent intent. 
 Waverli) Nat. Bank v. Halsey, N. S. ix. 713. 
 
 68. As to power of corporation to lease road as against creditors. See Cor- 
 poration. 
 
 69. Cannot volunteer protection to claims of third persons with whom he has 
 no dealings, to avoid liability on his own contracts. Lund v. Seamen^s Bank, 
 ^c, N. S. ii. 125. 
 
 70. Other creditors may come in as parties to creditor's bill. Muers v. Fenn, 
 N. S. vii. .^9. 
 
 71. Partner in firm about to fail may use his private estate to pay private 
 creditors ; a conveyance to private creditor of his real estate is not to be pre- 
 sumed fraudulent. Banic v. Fitch, N. S. vii. 59. 
 
 72. In suit in equity against debtor and debtor's wife to reach property fraud- 
 ulently conveyed to wife to defraud husband's creditors, plaintiff may take de- 
 position of wife, though there has been no service on the husband, who is out of 
 the country. Crompton v. Anthony, N. S. vii. 186. 
 
 73. Debtor in failing circumstances cannot, even for valuable consideration, 
 convey his land, reserving a right to occupy it for a time, for his own benefit. 
 Lukens v. Atrd, N. S. vii. 313. 
 
 74. Conveyance without consideration to defraud creditors, void against subse- 
 quent as well as prior creditors. Marslon v. Marston, N. S. vii. 443. 
 
 73. Purchaser from insolvent debtor, with knowledge of intention to defraud 
 particular creditor, is liable for such part of the purchase-money as the debtor 
 has diverted from his creditors. Clements v. Moore, N. S. vii. 378. 
 
 76. Plaintiff having traversed plea of tender cannot except to right to file 
 such plea. Carpenter v. Welch, N. S. vii. 638. 
 
 77. If tender is received, although made after the proper time, it operates as a 
 payment as of the proper time. Id. 
 
 78. Order by debtor to his agent having funds to pay creditor, is appropriation 
 of the amount. Goodwin v. Bowden, N. S. Vii. 439. 
 
 79. Agent's promise to execute the order is an original undertaking. Id. 
 
 80. Delivery of money by debtor with specific instruction as to its application. 
 Violation of instructions by creditor. Norton v. Kidder, N. S. vii. 447. 
 
 8 1 . Charges of con verting security into money are to be deducted before appli- 
 cation to payment. Sheldon v. Raveret, N. S. vii. 379. 
 
 82. Especially if creditor is a factor with lien on goods. Id. 
 
 83. where judgment-creditors sue to recover the value of property fraudulently 
 sold by their debtor. Whitehall v. Crawford, N. S. xii. 661. 
 
 84. Where debtor alleges that he transferred notes and mortgages to his creditor 
 to collect them, and pay himself and hand over surplus, and that there is a surplus, 
 an action at law is stated and not one in equity. Dickson v. Cole, N. S, xiii. 
 587. 
 
 85. If the creditor releases a mortgage-debt received as collateral, having 
 taken a conveyance of the land without the debtor's consent, he is liable to ac- 
 count to him for amount. Id. 
 
 86. The capital stock of a corporation is a trust fund for the benefit of the 
 general creditors. Sawyer v. Hoag, N. S. xiii. 327. 
 
 87. To avoid a mortgage for fraud towards creditors, the intent in the mort- 
 gagee as well as the mortgagor must be shown — what may be evidence in such 
 cases. Carpenter v. Muren, N. S. iv. 255. 
 
 88. On failure of firm and sale of the land partnership-creditors only are en- 
 titled to proceeds. North Penna. Coal Co.'s Appeal, N. S. iii. 572. 
 
 89. A creditor cannot file a bill to set aside a transfer of property fraudulently 
 made by his debtor. Green v. Tantum, N. S. viii. 120. 
 
 90. Separate defeasance withheld from record to defraud creditors is valid and 
 will be enforced between the parties. Clnrk v. Condit, N. S. vii. 763. 
 
 91. A deed of separation bv which husband binds himself to pay a certain 
 sum to his wife, and interest until paid, if the parties are reconciled before pay- 
 
348 DEBTOR AND CKEDITOR. 
 
 ment, is a voluntary settlement, even though there is agreement that the settle- 
 ment shall stand. Kehr v. Smith, N. S. xir. 123. 
 
 92. A voluntary settlemeut of $7000, where settlor has only $16, 130, and 
 owes $9306, is void as to creditors. Id. 
 
 93. Where the grantee in a fraudulent conveyance by a debtor dies after a 
 decree setting aside the conveyance and ordering a sale for payment of judg- 
 ment-creditors, the title of the purchaser will not be affected by a failure to 
 make the heir of grantee a party to the decree. Beawmnt -v. Herrick', N. S. xiv. 
 194. 
 
 94. Section 422 of Code of Ohio, providing for a judgment ceasing to become 
 a lien, does not apply to a decree for the sale of specifife property. Id. 
 
 9.5. There is no error in refusing to charge that, " the conveyance of the whole 
 of a debtor's property is a very violent presumption of a fraudulent intent," 
 where the question is whether the sale was fraudulent or not. Btgelow v. Dm- 
 little, N. S. xiv. 252. 
 
 96. Whether it is slight or violent is for the jury> Id. 
 
 97. A note given to a creditor to induce him to sign a composition deed, with- 
 out the other creditors' knowledge, is illegal and void. Winn v. Thomas, N. S. 
 xiv. 702. 
 
 98. The note being void cannot be the consideration of a new promise. Id. 
 
 99. Where creditors receive from their debtor the note of a third person for col- 
 lection, the proceeds to be applied upon the debt of such debtor, they will be 
 deemed to have assumed the obligation of an attorney or agent for the colleotiou 
 of the demand. Buckingham v. Payne, N. S. i. 510. 
 
 1 00. How far assignment valid until consent of trustee ascertained. Seggers 
 V. Evans, 0. S. iv. 124. 
 
 101. Where assignment shows on its face, or with extrinsic facts, that it is 
 necessarily fraudulent, it is void. Kavanagh v. Beckwilk, N. S. v. 503. 
 
 102. What statements make it fraudulent. Id. 
 , 103. Duties of assignees. Id. 
 
 104. How fraudulent intent disproved. Id. 
 
 105. Assignments at dififerent dates to secure debts incurred at different times 
 not a general assignment. Wynkoop v. Shardlow, N. S. v. 317. 
 
 106. Where a constable purchases a chattel sold by himself under an execu- 
 tion, and then sells to a bonS, fide vendee, having accounted for the price to the 
 execution creditor, neither the constable nor his vendee will be chargeable as 
 trustees for another creditor. Farnum v. Perry, N. S. xi. 133. 
 
 107. The half-pay of a government officer is not liable to he taken by his 
 creditors. Elwyn's Appeal, N. S. xi. 195. 
 
 108. The pay having reached: the beneficiary (a lunatic), and being in his 
 committee's hands, it is to be distributable by direction of law. Id. 
 
 109. His future pay could not be assigned by him, if sane,. nor intercepted by 
 his creditors. Id. 
 
 110. Where the question is whether promissory notes were given in payment 
 of a debt or as a loan, and there is evidence of payment being made to the party 
 claiming that it was for a debt, as owner and holder, the jury should say what 
 weight that ought to have. Fish v. Davis, N. S. xi. 664. 
 
 111. Where there is evidence that the notes were given in payment of goods 
 purchased, the judge should not direct a verdict for plaintiff, in an action to re- 
 cover the amount paid as being a loan. Id. 
 
 , 112. Where a number of execution creditors agree to give the debtor time, 
 
 they are bound in good faith to carry it out among themselves. Loucheim Bros'. 
 Appeal, N. S. xi. 127. 
 
 113. A debtor owed one of his creditors $1600, but stated it in an agreement 
 and to the other creditors at $830, and in order to induce his creditors to sign 
 gave him a judgment of $800,, payable in thirty days ; this was a fraud on the 
 others, and as to them void. M. 
 
 1 14. It was not void as to creditors not signing. Id. 
 
 115. The creditor having issued execution on his judgment for $800, was a 
 trustee ex maleficio for the signers in respeet to any advantage obtained by it. 
 Id. 
 
 116. Where one of the assignors in an assignment for the benefit of creditors 
 is an infant only nineteen, the assignment is void as against creditors. Yates v. 
 Lyon, N. S. xi. 330. 
 
DEBTOE AND CREDITOR. 349 
 
 117. Nor does it matter that the infant, afterward, by his silence consented to 
 and ratified it. Yales t. Lyon, N. S. xi. 330. 
 
 118. To entitle a poor debtor to chancery of his bond, the justices must be se- 
 lected according to law, and have jurisdiction over his disclosui-e. Hackett v. 
 Lane, N. S. xiii. 123. 
 
 119. The only bars to an action on the bond are payment of debt, surrender 
 of debtor, or disclosure. Id. 
 
 120. Pleas of performance estop debtor from claimin that, in consequence of 
 non-conformity to statute, bond is only good at common law. Id. 
 
 121. A poor debtor's bond, not according to statute in its approval, is good 
 only at common law. Smith v. Brown, N. S. xiii. 123. 
 
 122. No apprisal of demands disclosed under such bond is necessary unless 
 required by the terms of the bond. Id. 
 
 123. The record of the justices hearing such disclosure is sufficient of itself. 
 Id. 
 
 124. Where creditor takes the drafts of a third person, but not in payment, 
 they cannot afiiect his rights so long as they remain unpaid. Allen v. Clark, K. 
 S. xiii. 194. 
 
 125. They are to bedeemed simply as collaterals, and may be prosecuted to 
 judgment without prejudicing creditor's claim against principal debtor. Id. 
 
 126. A creditor taking a chose in action as collateral security for a pre- 
 existing indebtedness is not a purchaser for value. Ashton's Appeal, K. S. xiii. 
 895. 
 
 127. Where a debtor has transferred his property to his wife, who holds it for 
 his use and permits him to control it, it will not protect him in a court of equity 
 that the forms of law have been pursued. Metropolitan Bank v. Durant, N. S. 
 xi. 56. 
 
 128. No payment of consideration will protect a sale contrived to defraud cred- 
 itors, where the purchaser has knowledge of' the object of the sale. Id. 
 
 129. A subsequeut attaching creditor cannot maintain audita querela against a 
 prior one, on the ground that the debtor was non-resident, and the judgment was 
 obtained without notice. Essex Mining Co. v. Ballard, N. S. xi. 195. 
 
 130. Nor can he maintain such suit on the ground that the judgment was 
 fraudulent as to creditors, for if so the property may be pursued in disregard of 
 the prior attachment. Id. 
 
 131. It is not sufficient to set aside a deed made by a grantorin failing cir- 
 cumstances that his object was fraudulent ; it must be shown that the grantee par- 
 ticipated in the intent or had knowledge of the object. Merchants' Bank of 
 Newton V. Northrup, N. S. xi. 264. 
 
 132. The mere fact that the grantee heard of the grantor's suspension or fail- 
 ure is not enough. Id. 
 
 133. A purchaser in good faith, without notice, of goods sold with the intent 
 to defraud creditors obtains a good title. Diefendorfr, Oliver, N. S. xi. 395. 
 
 134. If the purchaser pays by giving his negotiable notes to a third party, he 
 cannot be garnisheed by the creditors of the vendor. Id. 
 
 135. The claimant of a decedent's profierty under a transfer invalid as against 
 creditors, is not affected by the decree of a probate court charging the adminis- 
 trator with it. Cross v. Brown, N. S. xi. 72J. 
 
 136. A voluntary conveyance by a debtor to the wife is void as against an 
 antecedent creditor. Phelps v. Morrison, N. S, xiii. 56. 
 
 ] 37. A purchaser under a void deed, for valuable consideration and without 
 notice, will be protected against an antecedent creditor to amount of purchase- 
 money. Id. 
 
 138. A sale of furniture by the vendor, who occupies the same house as the 
 vendee, with no transfer other than a bill of sale, is void as against his creditors, 
 under the Statute of Frauds of Missouri. Allen v. Massey, N. S. xiii. 329. 
 
 139. When the gift of land by a father to his daughter is assailed for fraud, 
 and his creditors are all judgment-creditors subsequent to the gift, the fraud is 
 one of fact, and calnnot be determined by the court. Hendon v. White, N. S. 
 xiii. 455. 
 
 140. Such gift is not necessarily void against existing creditors. Id. 
 
 141. The retention of possession of stock sold to a creditor, though a badge 
 of fraud, is susceptible of being overcome by proof that debtor acted as agent 
 of vendee. Moug v. Benedict, N. S. xiii. 455. 
 
 142. Where a composition is made by creditors with a debtor, any security or 
 
350 DEBTOR AND CREDITOR. 
 
 adrantage given to a particular creditor, not provided for in the terms of the 
 composition and not disclosed, is void, both as to the other creditors and as to 
 the debtor. Bean r. Amsink, N. S. xii. 379. 
 
 143. Creditors agreed to accept 70 per cent, in notes, payable at six, twelve 
 and eighteen months. One of the creditors, in pursuance of a previous agree- 
 ment, gave back the notes for the 70 per cent., and took notes for 50 per cent, 
 payable in 60 days. These notes were paid, but the debtor being unable to meet 
 the six-month notes, was adjudicated a bankrupt. Held, that his assignee could 
 recover back the money paid to the creditor on the sixty-day notes. Id. 
 
 144. Where the plaintiff owned a United States 5-20 bond in the possession 
 of the defendants at the time of their making a fraudulent transfer of their pro- 
 perty, which they afterwards converted to their use, he will be held to be a cred- 
 itor entitled to protection. Pendleton v. Hughes, N. S. xii. 660. 
 
 145. Wljere the direct effect of a conveyance and of omitting to put it on 
 record is to defraud a creditor of the grantor, it will be held fraudulent and void. 
 Id. 
 
 146. And this whether the creditor was one before or after the fraudulent con- 
 veyance. Id. 
 
 147. A conveyance voluntary and without consideration, executed by H. and 
 his wife, when he was in embarrassed circumstances, with the understanding that 
 it should he conveyed back to the wife, is fraudulent and void. Id. 
 
 148. Any person may pledge his personal property as collateral security, 
 though such property would otherwise be exempt by law from sale on execution. 
 Jones V. Scott, N. S. xii. 531. 
 
 149. Conveyance by fatlwr to son, in consideration of paying his debts, not 
 fraudulent as to future creditors. Preston v. Jones, N. S. v. 377. 
 
 150. A conveyance made in consideration of the grantees assuming the mort- 
 gages on the property, void as to creditors, to the extent of the value of the 
 property above the mortgages. Mead -v. Combs, N. S. viii. 120. 
 
 151. Where a trust mortgage was made to C. to secure amongst others a debt 
 of H., who owed a firm of which C. was a member, and H. gave an order on C. 
 in favor of B., it is an equitable assignment to B., and he can recover from C. 
 Caldwell v. Hartupee, N. S. xii. 401. 
 
 152. Assignment of life policies by debtor, insolvent when insured, in trust 
 for wife, void against creditors. Elliott's Executors' Appeal, N. S. v. 377. 
 
 153. Otherwise, if effected without fraud, on face for wife's benefit. Id. 
 
 154. The sale of a railroad with its franchises and rolling-stock, under' a de- 
 cree of foreclosure, for a price far below its value, will be set aside as a fraud on 
 creditors. Drury v. Cross, N. S. viii. 248. 
 
 155. Subsequent creditors of a grantor cannot attack a conveyance valid when 
 made. Bakery. Oilman, N. S. viii. 311. 
 
 156. A creditor who trusts his debtor after being informed that the latter 
 has conveyed away his property, cannot impeach such conveyance as fraudulent. 
 Id. 
 
 157. To render a sale void as to creditors, the vendee as well as the vendor 
 must participate in the intent to delay. Leach v. Francis, N. S. viii. 504. 
 
 158. Sale of his property by insolvent is not conclusive proof of fraud. 
 Loeschigh v. Bridge, N. S. iv. 185. 
 
 159. Nor will the sale be set aside, merely because creditors are delayed. Id. 
 
 160. Other creditors may come in as parties to creditor's bill. Muers v. Fenn, 
 , N. S. vii. 59. ■^ 
 
 161. Partner in firm about to foil may use his private estate to pay private 
 creditors, and conveyance to private creditor of his real estate is not to be pre- 
 sumed fraudulent. Bank v. Fiich, N. S. vii. 59. 
 
 162. In suit in equity against debtor and debtor's wife to reach property fraud- 
 ulently conveyed to wife to defraud husband's creditors, plaintiff may take depo- 
 sition of wife, though there has been no service on the husband, who is out of the 
 country. Crompton v. Anthoni/, N. S- vii. 186. 
 
 163. Debtor in failing circumstances cannot, even for valuable ccn'iideration, 
 convey his land, reserving a right to occupy it for a time for his own benefit. 
 Lukins v. Aird, N. S. vi. 313. 
 
 164. Conveyance without consideration to defraud creditors, void against sub- 
 Buquent as well as prior creditors. Marston v. Marston, N. S. vii. 443. 
 
 165. Purchaser from insolvent debtor with knowledge of intention to defraud 
 
DEBTOR AND CREDITOR. 351 
 
 particular creditor is liable for such part of the purchase-money as the debtor 
 has diverted from his creditors. Clements v. Moore., N. S. vii. 378. 
 
 166. Conveyance held fraudulent as against creditor. Armstrong v. Tuttle, N. 
 S. iv. 120. 
 
 167. Sale of chattels, to remain property of the vendor till paid for, not 
 fraudulent in law. Esti/ v. Aldrich, N. S. vi. 248. 
 
 168. How far an executory contract to defraud creditors will be enforced be- 
 tween parties thereto. Note to Blystorte v. Bhjstone, N. S. vi. 205. 
 
 169. When creditors of an insolvent, transferring an interest for an inadequate 
 consideration, Will be aided in equity. Bigelow v. Ayrault, N. S. vi. 59. 
 
 170. When such assignor will be relieved himself. Id. 
 
 171. Covinous note given to defraud maker's creditors may be enforced against 
 him. Carpenter v, McClure, N. S. vi. 440. 
 
 172. Statute of Vermont on validity of contracts fraudulent as to creditors. 
 Id. 
 
 173. Who only can avoid contracts thereunder. Id. 
 
 174. In Maine, creditor may levy on real estate fraudulentfy conveyed by 
 debtor. Hall v. Sands, N. S. vi. 187. 
 
 175. May be attached in actions of tort and contract. Id. 
 
 176. Plaintiff in tort becomes a creditor on obtaining judgment. Id. 
 
 177. When fraudulent conveyance is void as to existing and subsequent cred- 
 itors and both. Id. 
 
 178. When fraudulent mortgage avoided. Id. 
 
 179. Questions of fraudulent intent for tlie jury. Id. 
 
 180. Judgment-creditor not necessary party to a creditor's suit to set aside 
 assignment on ground of fraud. Laun-ence v. Bank, N. S. vi. 378. 
 
 181. Right of sheriff to action against proceeds of assigned property to malie 
 money on an execution. Id. 
 
 182. A sale or assignment of chattels is voidable by creditors, unless it be ac- 
 companied or followed within a reasonable' time by such a corresponding change 
 of possession as the thing is reasonably canable of. Hugus v. Rohinson, 0. S. 
 ii. 181. 
 
 183. If an undivided part of a thing be sold, a concurrent possession is proper, 
 for it corresponds with the sale. Id. 
 
 184. A mere symbolical, formal or feigned delivery, where an actual and real 
 one is reasonably practicable, is of no avail. Id. 
 
 185. It must be a delivery with a bonS, fide intention of really changing the 
 possession as well as the title. Id. 
 
 186. If upon the. face of the transaction the attempt to delay or defraud cred- 
 itors is apparent, or the delivery equivocal, the vendee must explain it by satis- 
 factory evidence or the court will declare it void, taking care, however, not to 
 Invade the province of the jury by deciding disputed facts. Id. 
 
 187. If the circumstances of the sale and delivery be in accordance with those 
 that usually and naturally accompany such a transaction, it cannot be declared a 
 legal fraud. Id. 
 
 188. Where one purchases out a store, and continues the business in the same 
 place, the fact that the general arrangements and internal appearances about the 
 store remain the same after as before the sale, will not justify the court in de- 
 claring the transaction a legal fraud, if actual and exclusive possession was taken. 
 Id. But see Leech !'. Shantz, 0. S. v. 620. 
 
 IV. Insolvency of Debtor. 
 
 189. Where an insolveut advances money to his wife or her father, they being 
 ignorant of his insolvency, and upon learning it pay back in full, there is no 
 trust created for creditors in the profits accrued from the advance. Wheeler v. 
 Kirtland, N. S. xii. 320. 
 
 190. But if it is done to defraud or delay creditors the land will be liable for 
 his debts. Id. 
 
 191. Where a partnership firm becomes insolvent, having partnership property 
 and partnership creditors, and also separate property and separate creditors, and 
 the partnership creditors exhaust the paitnership property, the separate creditors 
 have priority right to receive an equal percentage of their claims out of the 
 separate estates, and if anything remains it is to be distributed among both 
 classes of creditors pari passu. Northern Bank of Kentucky v. Keitier, N. S. v. 
 75. 
 
352 DEBTOK AND ' CREDITOR. 
 
 192. If a note is in fact a partnership debt, all the partners are under the 
 same obligation to pay it as between themselves, if signed by one partner only, 
 as though signed by all. Sprague v. Ainsworih, N. S. vii. 575. 
 
 193. State insolvent laws have no extra-territorial operation ; and a creditor 
 cannot be compelled by a state of which he is not a citizen or resident to become 
 a party to insolvent proceedings therein ; and such proceedings cannot discharge a 
 debt due to a non-resident creditor, unless he voluntarily submits to the jurisdic- 
 tion by becoming a party to the proceedings, , or claiming a dividend thereunder. 
 Eawley v. Hunt, N. S. viii. 546. 
 
 194. A non-resident and non-assenting creditor is not bound by a debtor's dis- 
 charge under state insolvent laws, no matter where the debt originated, or is 
 made payable ; citizenship of the parties governs, and not the place where the 
 contract was made or where it is to be performed. Id. 
 
 195. The history of the Federal, and state adjudications, on the subject of the 
 effect of discharges under state insolvent laws, examined by Dillon, C. J. Id. 
 
 196. An express promise by a debtor, after his discharge under the insolvent 
 laws, to "pay a prior debt, waives the discharge. Knight v. House, N. S. viii. 
 695. 
 
 197. A person imprisoned upon an execution to enforce a decree of ali- 
 mony, is within the Insolvent Act of New Hampshire. Shannon's Case, N. S. 
 ix. 512. 
 
 V. Tendek and Payment. 
 
 198. In the a-bsence of any understanding between mutual debtors that the 
 debts shall bo applied to each other, one may assign his, though the other is 
 thereby prevented from recovering. McConnaughey v. Chambers, N. S. ix. 582. 
 
 199. The mistake of one party and the fraud of the other is as good cause for 
 vacating the settlement of a claim as a mutual mistake. Bloodgood's Adm'r v. 
 Seal's, N. S. xii. 401. 
 
 200. What is a valid tender of payment of money. Berthold v. Reyburn, N. 
 S. vi. 64. 
 
 201. Effect of tender. Id. 
 
 202. How to avoid the plea of tender by a subsequent demand. Id. 
 
 203. What is sufficient to constitute valid tender. Strong v. Blake, 'N. S. vi. 
 191. 
 
 204. Must be an actual offer or presentation. Id. 
 
 205. Facts not amounting to a waiver of tender. Id. 
 
 206. Payment in United States treasury notes is a good tender, though con- 
 tract be for current gold coin. Appelv. Woltvian, N. S. vi. 248. 
 
 207. Conditional offer, invalid as a tender. Foster s^. Drew, N. S. vi. 446. 
 
 208. When language used in making tender, merely explains what defendant 
 claims as its extent. Id. 
 
 209. A creditor's agreement to receive the note of a third person in payment 
 of his claim, with actual transfer, extinguishes the claim. Roberts v. Fitlier, N. 
 S. viii. 638. 
 
 210. A debtor has the right in the first instance to make the appropriation of 
 payment. Neidig, Adm'r rf Neidig, v. Whiteford, N. S. viii. 695. 
 
 211. Plaintiff having traversed plea of tender, cannot except to right to file 
 such plea. Carpenter v. Welch, N. S. vii. 638. 
 
 212. If the tender is received, although made after the proper time, it operates 
 as a payment as of the proper time. Id. 
 
 213. Order by debtor to his agent having funds to pay creditor, is appropria- 
 tion of the amount. Goodwin v. Bowden, N. S. vii. 439. 
 
 214. .Agent's promise to execute the order is an original undertaking. Id. 
 
 215. Delivery of money by debtor with specific instructions as to its applica- 
 tion ; violation of instructions by creditor. Norton v. Kidder, N. S. vii. 447. 
 
 216. Charges for converting security into money are to be deducted before 
 application to payment. Sheldon v. Raveret, N. S. vii. 379. 
 
 217. Especially if creditor is a factor with lien on goods. Id. 
 
 218. Decree awarding money to one of several execution-creditors, conclusive 
 as to all matters involved therein. Noble v. Cope's Adm'rs, N. S. v. 378. 
 
 YI. Bights op Creditors, and herein op Attaching Creditors. 
 
 219. A member of a corporation wfao is not its 6nancifl,I officer cannot without 
 authority make himself its creditor by the voluntary payment of its debts. 
 Blanchard v. Association of Spiritualists, N. S. xi. 530. " 
 
DEBTOK AND CREDITOR. 353 
 
 220. Intercourse between debtor and creditor who are enemies is unlawful 
 during war. United States v. Grossmayer, N. S. ix. .'516. 
 
 221. Priority among creditors of president and the corporation, when the latter 
 ■was organized for fraudulent purposes, liootk t. Bunce f.t al.,'S. S. ii. 120. 
 
 222. Enforcement in equity of resulting trust by creditors. McCartney v, 
 Bostwick, N. S. iv. 572. 
 
 22.3. Mortgage recorded after judgments is entitled to priority, if judgment- 
 creditor had actual knowledge of it before the debts were contracted. Brelton^s 
 Appeal, N. S. iii. 573. 
 
 224. None but creditor of grantor can object to want of consideration in a 
 deed. Hatch v. Bates, N. S. vii. 442. 
 
 225. Deed to A., his heirs and assigns, with acknowledgment of receipt of the 
 purchase-money from A., guardian, &c., is notice to A.'s creditors that the land 
 is held in trust. Bancroft v. Consen, N. S. vli. 121. 
 
 226. An attaching creditor of real estate with notice, either actual or con- 
 structive, of the true state of the debtor's title, is bound by such notice. Perrin 
 V. Reeds, N. S. iv. 55. 
 
 227. Creditor is entitled to the benefit of any security his debtor may have 
 given his surety. Rankin v. Wilsey, N. S. iv. 447. 
 
 228. Creditor may sue secret partner when discovered. Richardson v. Fafmer, 
 N. S. V. 447. 
 
 229. Where creditor employs legal process against a debtor in the usual way 
 and without unnecessary delay, it is prim^ facie proof of such diligence in col- 
 lecting his debt as will give him a claim against a guarantor. Hoffman v. Bechtel, 
 N. S. V. 745. 
 
 230. Creditor not bound to use active diligence to collect debt of principal 
 Glaj-zier v. Douglass, N- S. v. 63. 
 
 231. Attaching creditor has right in equity to redeem land from prior encum- 
 brance. Chandler v. Dyer, N. S. v. 508. 
 
 232. Attaching creditor cannot avail himself of a momentary seisin in his 
 debtor, ffadeton v. Lesure, N. S. v. 126. 
 
 233. History and state of the law on subject of partnership and separate 
 creditors. Note to Bank v. Keizcr, N. S. v. 73. 
 
 234. Subsequent attaching creditors and assignee of defendant may plead. 
 Child V. Eureka Powder Works, N. S. v. 701. 
 
 235. A warrant of arrest is not regularly issueu, and cannot be enforced, un- 
 der the Pennsylvania Act of 1 2th of July 1842, pending a levy on the personal 
 property of the defendant, by virtue of a fi. fa. in the sheriff's hands, issued on 
 complainant's judgment, and pending the attachment of defendant's effects in 
 the possession of the garnishee, by virtue of an execution attachment issued on 
 said judgment. Commonweahhv. O'Bara, N. S. vi. 765. 
 
 236. Defendant no right to appropriate plaintiff's work as a payment upon a 
 note held against him. Carr v. McDonald, N. S. vi. 565. 
 
 237. When creditors, having taken a new security, may set it aside and resort 
 to original indebtedness. The Winsted Bank, N. S. vi. 185. 
 
 238. A- creditor who has collateral security may sue his debtor and obtain 
 iudgment without affecting his lien on the property pledged. Jones v. Scott, N. 
 S. xii. 531. 
 
 239. A judgment-creditor purchasing at sheriff's sale, under his judgment, is 
 antitled to have a mortgage upon the property, given by the defendant in execu- 
 tion in embarrassed circumstances, set aside and declared void. King v. Storey, 
 N. S. viii. 120. 
 
 240. By the Act of March 7th 1850, to prevent fraudulent trusts and assign- 
 ments, a creditor upon a return of an execution nuHa bona, has a lien upon the 
 jhoses in action of his debtor. Green v. Tantum, N. S. viii. 120. 
 
 241. A creditor who attaches and sells his debtor's goods, cannot prove his 
 claim under an assignment. Valentine v. Decker, N. S. viii. 378. 
 
 242. A judgment-creditor who has exhausted his remedy at law, may fileabill 
 igainst persons holding property of his debtor which cannot be reached by exe- 
 I'.ntion, and he need not join other creditors as complainants. Marsh v. Bur- 
 eoughs, N. S. x. 718. 
 
 243. If in such case it appears by the pleadings or otherwise that distribution 
 must be made pro ratfi, among a certain class, the court will frame its decree for 
 the benefit of all. Id. 
 
 23 
 
354 DEBTOR AND CREDITOR— DECEDENT'S ESTATE. 
 
 244. So a judgment-creditor may pursue any equitable interest of his debtor 
 in whosoever hands it may be without making third persons parties, altliough 
 the party sued may be entitled to contribution or indemnity from such third per- 
 son. Marsh V. Burroughs, N. S. x. 718. 
 
 245. Subscription to capital stock of a corporation, wholly or partly unpaid, 
 are assets, even though never called in by the corporate authority, and may be 
 made available by creditors for the payment of their debts. Id. 
 
 "VII. Liability of Deetob. 
 
 246. Retiring partner liable to creditor of the firm. Zolter y._Janvrin, N. S. 
 vli. 252. 
 
 247. Agreement by creditor to extend time of redemption of land mortgaged 
 for securitv of his debt, does not extend the personal liability of the debtor. Ball 
 T. Wyeth, N. 8. iv. 185. 
 
 248. Under proceedings against a non-resident debtor, all creditors, at the 
 time of issuing the first warrant of attachment against him, are entitled to come 
 in and share in the distribution, whether they be residents or non-residents of this 
 state or the United States, and without regard to the place where the debt was 
 contracted. Matter of Boiiaff'e, N. S. i. 59. 
 
 DECEDENT'S ESTATE. 
 
 I. Or THE Debts of Decedent, and herein op Actions fou the Recoteet 
 
 THEREOF. 
 
 1. In an action for work and labor done for the intestate, the widow is a com- 
 petent witness for plaintiff, where her testimony is not a disclosure of confidential 
 communications between her and her husband. Stober's Administrator v, McCar- 
 ter, 0. S. iv. 689. 
 
 2. Liable on a joint contract made while living. Burgoyne v. Insurance Co., 
 0. S. iv. 701. 
 
 3. Whether an agreement by parol or in writing without seal, by the son, can 
 have any effect is doubtful. Id. 
 
 4. A creditor of a decedent's estate must enforce his claim through an execu- 
 tor or administrator. Wilson v. Davis, N. S. xii. 531. 
 
 5. Any one taking possession of decedent's property without administration, 
 may be sued by a creditor as an executor de son tort. Id. 
 
 6. To bind a decedent's estate, his legal representative must be made a party 
 in his representative character. Fisher v. Hubbell el ah, K. S. xii. 733. 
 
 7. If anoilliary administration be taken out in another state, a judgment there 
 rendered cannot be proved against the estate in the decedent's domicil. Low v. 
 Bartlelt, N. S. iv. 185. 
 
 8. A creditor of a decedent cannot be prejudiced by the failure of the commis- 
 sioners of the Probate Court to present his claim for allowance. Dickey v. Cor- 
 liss, N. S. viii. 504. 
 
 9. At common law, the heir was liable on the covenants of his ancestor in 
 which he was specially bound. Hall v. Martin, N. S. vi. 757. 
 
 10. Claim against estate not barred till six months after its final rejection by 
 executor. Calanan v. McClure, N. S. vi. 562. 
 
 11. Contracts with nurses, housekeepers, &c., sought to be enforced after the 
 death of the person to whom services are rendered. Thompson v. Stevens, N. S. 
 xii. 727. 
 
 12. A promise, that if plaintiff would stay with decedent as long as he lived 
 he would give her plenty after he was gone, so that she need not work, is suffi- 
 ciently certain and definite. Id. 
 
 II. Op the Sale or Partition op the Real Estate, and herein vthat 
 
 ■WILL AMOUNT to CONVERSION. 
 
 13. Children have no vested rights as heirs in their father's estate while he 
 lives. Morgan v. Perry, N. S. xii. 326. 
 
 14. Statutes altering the descent of intestates' estates, which only appiv to 
 estates to be settled after its passage, are not retrospective. Id. 
 
 \ 15. Sale of lands by administrators and guardians as against infant heirs. 
 Gibson V, Roll, N. S. xii. 118. 
 
 16. Interest in a policy on realty descends to heirs. Wyman v. Wvman. N. S. 
 iii. 569. ' s s ) 
 
 17. The whole power of the court to order a sale of the lands of infants is 
 
DECEDENT'S ESTATE. 355 
 
 derived from tne statute. There is no sucli original jurisdiction in a court of 
 equity. Onderdonk v. Mott, N. S. i. 182. 
 
 18. Partition in Orphans' Court. In a proceeding in partition, land is not 
 converted into money until the conditions of sale are complied with, at least so 
 far as to entitle the party to his deed ; and where one of the co-partners was a 
 married woman, and died before the proceedings were so far complete, her share 
 descends as land, and not as money. The Estate of John Bigget, 0. S. i. 121. 
 
 19. Under the Act of 27th April 1855, the children of deceased uncles ancl 
 aunts take by representation such part of the estate of a decedent as the parent" 
 would be entitled to if living. The rule of distribution is per stirpes, and no( 
 per capita. Brenneman's Appeal, N. S. i. 563. 
 
 20. Evidence to give a surrogate jurisdiction to order sale of real estate of 
 decedent. Forbes v. Salsey, N. S. iii. 500. 
 
 III. Op Advancements. 
 
 21. Advancement always a question of intention. Weaver's Appeal, N. S. x. 
 192. 
 
 22. It is always a presumption that a parent means to treat his children equally. 
 Id. 
 
 23. All declarations of intent made by an ancestor in settling his property 
 among a set of children are admissible in evidence. DuLing v. Johnson, N. S. 
 X. 192. 
 
 24. An advancement in money has no effect on the share of real estate descend- 
 ing to a son. Havens v. Thompson Sf Allen, N. S. xii. 460. 
 
 IV. Op Legatees and Distributees, and Actions by them. 
 
 25. In Pennsylvania, an action cannot be brought in a common-law court by 
 a distributee under the intestate laws to recover his share of the personal estate. 
 Ashford V. Swing, 0. S. iv. 294. 
 
 26. Certificates of stocli and coupon government bonds will pass as a donatio 
 mortis causa, by delivery alone. Walsh, Executor, v. Sexton, N. S. ix. 261. 
 
 27. If policy runs to assured, his executor, &c., the latter may maintain an 
 action as trustee for the heirs. Wyman v. Wi/inan, N. S. iii. 569. 
 
 28. If a suit is prematurely brought, the executor must plead the fact in abate- 
 ment, and not in bar. Amoskeag Manuf. Co. v. Barnes, N. S. viii. 440. 
 
 29. Eemedy of executor who has resigned. Prentice v. Delion, N. S. v. 509. 
 
 V. Op the Purchase bt Administrator ok Executor of his Dece- 
 dent's Property. 
 
 30. Purchase by agent of administrator at sale of decedent's real estate, is 
 void. Forbes v. Halsey, N. S. vii. 500. 
 
 VI. Jurisdiction in Decedent's Estate. 
 
 31. Probate court has no jurisdiction over trustee appointed by will. Hayes 
 V. Hayes, N. S. viii. 575. 
 
 32. Want of capacity cannot be proved by events subsequent to the making of 
 the will. Clarke v. Davis, N. S. iii. 375. 
 
 33. Where a person dies before the expiration of six years from the time 
 when a cause of action first accrued to him, his executor must, in order to pre- 
 vent the operation of the Statute of Limitations, commence his action before the 
 expiration of the six years. Penny v. Brice, N. S. iv. 433. 
 
 34. Where the presentation of a claim within the proper time has been pre- 
 vented by the fraudulent concealment of a deceased party, a bill in equity lies to 
 obtain satisfaction out of the surplus in ihe hands of the heirs. Sugar River 
 Bank v. Fairbanks, N, S. x. 197. 
 
 35. A judgment for costs against a decedent's estate cannot be set off. Nave 
 V. Wilson, N. S. x. 743. 
 
 36. A sale and conveyance by an executor under an order of the Orphans' 
 Court for the payment of debts of a testator, does not discharge the land from 
 the lien of a judgment against the heir or devisee. Bockover v. Ayres, N. S. 
 xi. 264. 
 
 37. The judgment-creditor has no right therefore to any part of the purchase- 
 money. Id. 
 
 38. The question as to whether the lands of a decedent are liable for the pay- 
 ment of debts or legacies is within the jurisdiction of the court of probate of 
 New Hampshire, and its decision is conclusive until appealed from, Uall v. 
 
 Woodman, N. S. xi, 327, 
 
356 DECEDENT'S ESTATE. 
 
 39'. All claims against a solvent estate are' barred in three years from the 
 granting of administration nnless suit is begun. Hall r. Woodman, 'S. S. xi. 327. 
 
 40. A child born after the malting of a will cannot recover any portion of an 
 advancement made to a brother or sister before the will was made. Sanford v. 
 Sanford, N. S. xi. 458. 
 
 41. Conveyances to children without consideration will be dcenled advance- 
 ments. Id. 
 
 42. Small sums given to spend or defray travelling expenses will not be con- 
 sidered as advancements ; otherwise as to sums given to start a son in business. 
 Id. 
 
 43. An order of a court of probate directing the estate of an intestate to be 
 distributed to the persona whom such court finds to be the heirs at law and en- 
 titled to the estate, is conclusive, and furnishes full protection to the administrator 
 until set aside on appeal. Kellogg v. Johnson, N. S. xi. 746. 
 
 44. No relief can be had, even in equity, by the next of kin against the 
 sureties on the administrator's bond. Dorshimer v. Rorhack, N. S. xi. 773. 
 
 4.5. The next of kin may maintain a suit in equity for his distributive share. 
 Id. 
 
 46. Ordinarily a legatee or" next of kin must sue the executor or administrator 
 only, and cannot join debtors of the estate, but where there is collusion between 
 them and the executor he may. Id. 
 
 VII. Of the Peksonal Pkopektt, and hekein of the Disposition of De- 
 cedent's Body. 
 
 47. Right to disposition of body of decedent after burial belongs to next" of 
 kin, not to the widow. Wiinkoop v. Wynkoopi N. S. ii. 503. 
 
 48. Where the domicile of testator and all his personal property are in New 
 York, the executors cannot be allowed expenses of proving will in another state 
 where testator had real estate only. Young v. Brush, N. S. ii. 632. 
 
 49. The distribution of the personal estate in such pase is 'to be according to 
 . the laws of New York> Id. 
 
 50. Unharvested crops go to the devisee of the land and not to the executor. 
 As against the heirs at law they go to the executor ; but as against a devisee 
 they do not, unless it appear by the will that the testator so intended. Dennett 
 V. Hopkinson, N. S. xiii. 359. 
 
 51. Hay in a barn passes under a bequest of " all the household furniture-and 
 other articles of personal property in and about the buildings." Id. 
 
 52. The assets of a non-resident intestate are applied according to the laws of 
 the state where situated, and not according to the laws of his domicile. Carson 
 V. Oates, N. S. ix. 385. 
 
 53. The lien of a legacy charged on land can only be divested by actual pay- 
 ment or release, or by decree. Grode v. Van VaUn, N. S. xiv. 323. 
 
 54. A statement by a testator, estimating his estate with reference to his will, 
 is inadmissible to show at what i-ate interest should be charged on a legacy. 
 Fowler el ux. v. Colt, N. S. xiv. 323. 
 
 55. Neglect of executors to invest a legacy, makes them chargeable with in- 
 terest at the legal rate. Id. 
 
 56. The failure to invest is not exicuSed by the fact that it was for the interest 
 of the residuary legatee. Id. 
 
 57. An aunt of the respondent, with whom she lived and to whom by her will 
 she had given all her property, upon her death-bed desired to change her will 
 and give a certain piece of real estate to a niece, and had a codicil pi-epared for 
 that purpose. Before signing the codicil, she wished to secure the consent of the 
 respondent to the change and had him called in for the purpose. After hearing 
 her, he replied that she was weak and that she need not trouble herself to sign 
 the codicil, but that he would deed the' property to the niece and carry out her 
 wishes. Trusting in his promise, she did not change her will. After her death, 
 the respondent refused to convey to the niece. On a bill in equity brought by 
 her to compel him to convey, it was held that he took the property under a trust 
 for her, which a court of equity would enforce. Dbwd v. Tucker, N. S. xiv. 
 477. 
 
 58. And held, too, that the case was one of fraud, it being clear'ly inferable 
 from his refusal to convey after the death of the testatrix, that he made his pro- 
 mise to her with an intention not to perform it. Id. 
 
 59. An advancement made by the intestate in due form may be legally can- 
 
DECEDENT'S ESTATE— DEED. 357 
 
 celled by him, by any unequivocal act carrying the same into execution, as by 
 surrendering or cancelling the eyidence of such advancement. Wheeler v. Wheeler, 
 N. S. xiv. 684. 
 
 60. Verbal declarations by a distributee, that he had received a full share, do 
 not establish an election by him to retain advancements and waive his claim to a 
 share. Kei) et al. v. Janes, N. S. xiv. 703. 
 ' 61. Whether the statutory mode of making election precludes all others, not 
 decided. Id. 
 
 DECEIT. 
 
 1. Fraudulent intent being the gist of an action for deceit, it must be proved 
 that the party making the representations knew them to be false. Robinson v. 
 Flint, N. S. X. 346. 
 
 2. Action of, for false affirmation of quantity of land and crop raised thereon. 
 Coon V. Atwell, N. S. vi. 378. 
 
 DEDICATION. 
 
 1. The public is an ever-existing grantee, capable of taking dedications for 
 public use. Warren v. Jacksonville, 0. S. iii. 636. 
 
 2. Parol dedications are good. M. 
 
 3. A dedication to public use is, where one, being the owner of land, consents 
 either expressly or by his actions that it may be used by the public for a par- 
 ticular purpose. Mayor, ^c, v. Franklin, 0. S. ii. 318. 
 
 4. A public square or a common in a city or town is the subject of dedication. 
 Id. 
 
 5. A dedication of land to public use is in the nature of an estoppel in pais ; 
 and when an attempt is made bj' the proprietor to revoke it by a sale of the land 
 he may be enjoined by any person interested in the use. Id. 
 
 DEED. 
 
 I. Of the ExEcnTiou op a Deed, and herein of the Filling of Blanks 
 
 AFTElt ExECDTION, AND HOW FAR AN INTERLINEATION WILL INVALIDATE IT. 
 
 1. Deed of widow executed while a minor is voidable. Wiser y, Lockwood's 
 Estate, N. S. ix. 641. 
 
 2. The record of a deed in one town is not constructive notice of the convey- 
 ance of land in another town. Perrin v. Seeds, N. S. iv. 55. 
 
 3. Covenant not implied by designation of ground in a plan referred to in a 
 deed. Light v. Goddard, N. S. vi. 185. 
 
 4. A grantee must show that an alteration beneficial to himself was properly 
 made. Robinson v. Myers, N. S. xi. 196. 
 
 5. If the alteration appears to be made with the same pen and ink, the infer- 
 ence is that it was made before sealing and delivering, otherwise evidence is re- 
 quired to explain it. Id. 
 
 6. The law does not presume an interlineation in a deed a forgery, or made 
 after execution. Id. 
 
 7. A plot referred to in a deed is as much a part of the deed as if incorporated 
 in it. Id. 
 
 8. Nothing less than thirty years' possession in conformity with a deed is 
 sufficient to raise the presumption of its authenticity, talker v. Walker, N. S. 
 xi. 196. 
 
 9. Where proof of possession cannot be had, the deed may be read, if its gen- 
 uineness is otherwise satisfactorily established. Id. 
 
 10. Where a deed of a husband and wife is set aside on account of the hus- 
 band's unsoundness of mind, no deduction will be made for the value of the 
 wife's right of dower, nor for taxes paid since the execution of the deed. Mar- 
 vin V. Lewis, N. S. xi. 264. 
 
 11. Such deed proves nothing, and the wife could not convey her inchoate 
 right of dower. Id. 
 
 12. A deed being void the heir of the grantor may recover the land without 
 any deductions. Id. 
 
 13. A subsequent grantee cannot attack a prior deed of his grantor for fraud 
 or want of consideration. Gray v. Ulrich et al., N. S. xi. 331. 
 
 14. Unless he has the equitable title at the time of the execution of the prior 
 deed. Id. 
 
 15. A deed should be attested by witnesses or acknowledged by the maker, to 
 make it complete. Hendon v. White, N. S. xiii. 456. 
 
358 DEED. 
 
 16. A subsequent acknowledgment has the eflfect of a ratification and relates 
 back to the date of delivery. Hendon v. White, N. S. xiii. 456. 
 
 17. A deed purporting to have been executed by the president of a railroad as 
 authorized by the Act of 1852 of Ohio, if objected to, cannot be given in evi- 
 dence Vfithout proof of execution. Walsh v. Burten, N, S. xiii. 654. 
 
 18. A deed describing land by the subdivision and number of the section, and 
 number of the township and range, is not void for uncertaintj', though the county 
 and state be omitted. Russell v. Sweezey, N. S. xi. 460. 
 
 19. An instrument in writing under hand and seal, but without the acknow- 
 ledgment or subscribing witnesses rendered requisite by the Eevised Statutes of 
 New York, is insufficient to convey real estate, and is void against a purchaser. 
 Hoggen v. Avery, N. S. xii. 122. 
 
 20. Equity will not compel grantor to seal a voluntary deed. Eaton v. Eaton, 
 N. S. iii. 509. 
 
 21. The production of a fraudulent certificate of approval of a land grant 
 affords strong ground for believing all the title papers to be fabricated. United 
 States V. Galbraith, N. S. iii. 51. 
 
 22. The court will not confirm a title where the date of the grant has been al- 
 tered while in the hands of the claimants. Id. 
 
 23. A deed altered by consent of the parties and redelivered by them is good. 
 Bassett v. Bassett, N. S. viii. 184. 
 
 24. The omisson to read a deed to an illiterate marksman renders the acknow- 
 ledgment of no value. Suffern v. Butler, N. S. viii. 184. 
 
 25. Courts of equity will not change deeds of conveyance or written evidences 
 of title, by proof of verbal agreements. Case v. Peters, N. S. x. 665. 
 
 26. Conveying homestead of family, requisites of. Note to N. S. i. 707, and 
 see cases cited, 
 
 27. What is a material alteration of a release. Matjbee v. Sniffin, 0. S. v. 
 311. 
 
 28. Insertion of grantee's name and change of covenant after execution, in- 
 validates. Basford v. Pearson, N. S. v. 124. 
 
 29. A deed executed under a power of attorney duly recorded, but liaving no 
 certificate authenticating the signature of the justice to the acknowledgment, if 
 duly recorded, is a valid record. Fallass, Administrator, v. Pierce et al., N. S. 
 xii. 121. 
 
 30. Where the members of a firm authorize one partner to sign and seal an 
 instrument prior to its execution, it will be regarded as the deed of the firm. 
 Gibson v. Warden, N. S. xii. 119. / 
 
 31. Memorandum of alterations, &c., should be recorded, and the judge may 
 charge that absence of such memorandum on the record is a circumstance for 
 their consideration where fraud is alleged. Ileyer v. Heyer, N. S. ii. 439. 
 
 32. A sealed instrument creating an obligation, executed in blank, cannot be 
 filled up by the person to whom it may be addressed in that condition, so as to 
 become operative against the party executing it, even if advances have been 
 made upon the faith of it ; and no parol authority to fill up such blanks could 
 aid its validity, unless such authority had been exercised before delivery, and 
 without the knowledge of the party to whom it was delivered. Chawweii v. Ar- 
 nold, 0. S. ix. 608. 
 
 33. An examination of the English and American cases relating to sealed in- 
 struments executed in blank, or altered after delivery. Id. 
 
 34. The general power of attorney to transfer bank stock, as collateral se- 
 curity for a debt, executed with a blank for the name of the transferee, is made 
 specific by the attorney inserting a particular name, and he cannot afterwards 
 erase the name and insert another, and transfer the stock to the name last in- 
 serted. Denny v. Lyon, O. S. ix. 626. 
 
 35. The practice of executing powers of attorney and other instruments under 
 seal, with blanks to be filled up afterwards, commented on and disapproved, and 
 their general validity doubted. Id. 
 
 II. Op the Consideration and Deliveet. 
 
 36. Mere recording without knowledge of or delivery to grantee is not legal 
 delivery, and subsequent ratification by grantee will not cut out an intervening 
 mortgage for value. Parmelee v. Simpson, N, S. vii. 60. 
 
 37. Delivery to agent of grantor, with orders to deliver it presently to grantee, 
 passes title at once. Ernst v. Reed, N. S. vii. 573. 
 
DEED. 359 
 
 38. Delivery to third person by direction of grantee is suflieient. Hatch, v. 
 Bates, N. S. vii. 442. 
 
 39. None but creditor of grantor can object to want of consideration. Id. 
 
 40. To make valid delivery, must pass into liands of grantee or some one for 
 him ; and his assent will not bo presumed unless it be clearly beneficial to him. 
 Johnson v. Farley, N. S. v. 699. 
 
 41. Delivery presumed from statement thereof in will of grantor. Thompson's 
 Executor v. Lloyd, N. S. v. 125. 
 
 42. Consideration in a conveyance good, though merely nominal, and proof 
 of actual payment need not be given. Webster v. Van Steenbergh, N. S. vi. 185. 
 
 43. To constitute delivery it is necessary that the grantor should part with all 
 control over the deed. Burton v. Boyd, N. S. x. 534. 
 
 44. A deed in possession of grantor at his death is to be presumed as not 
 delivered. Id. 
 
 45. A money consideration recited in a deed is primS, facie the true one, but a 
 judgment-creditor may rebut the presumption. Amsden v; Manchester, N. S. iii. 
 318. 
 
 46. Mnrriage is good consideration. Smith v. Allen, N. S. iii. 63. 
 
 47. When delivery is presumed. Id. 
 
 48. Not every mere handing will constitute a full delivery. Id. 
 
 49. Facts not constituting delivery. Fonda v. Sage, N. S. vi. 59. 
 
 50. There can be no delivery of a deed except by the express or presumed 
 assent of the grantee. Rogers v. Carey, N. S. x. 743. 
 
 51. Evidence admissible to prove that no consideration passed, as it bears on 
 the amount of stamps required. Id. 
 
 52. Although a deed may not take effect without actual deliverv, when deliv- 
 ered the delivery relates back to the time of deposit. Stanton v. Miller, N. S. xii. 
 729. 
 
 53. Parol evidence is admissible to show for what consideration and in what 
 manner a grantee agreed to pay for the land conveyed to her by deed. Seaman 
 V. Berchrouck, N. S. i. 311. 
 
 54. The sureties of the recorder of deeds are not liable for false searches. 
 Commonwealth v. Harmcr, N. S. v. 214. 
 
 55. Where a deed expresses a nominal consideration never paid, no use results 
 to the grantor. Hogen v. Jaques, N. S. viii. 120. 
 
 56. The wife is not entitled to dower in the realty conveyed by deed of gift. 
 Thompson v. Vance, 0. S. vii. 222. 
 
 57. Grantee accepting a deed is estopped from denying the grantor's title. 
 Emerson v. Mooney, N. S. ix. 713. 
 
 58. A bill lies to set aside a deed procured by fraud. Martin v. Graves, TS. S. 
 iii. 62. 
 
 III. Op the Acknowledgment, Pkoeate and Recording. 
 
 59. The recording acts of Wisconsin apply not only in favor of subsequent 
 purchasers immediately from the same grantor, but also to those who take through 
 mesne conveyances. Fallass, Administrator, v. Pierce el al., N. S. xii. 121. 
 
 60. Under the laws of Kansas of 1859, priority over an unrecorded deed can 
 only be claimed bv a purchaser for a valuable consideration. Coon v. Browning, 
 N. S. xii. 531. 
 
 61. Unrecorded is void against a subsequent recorded deed, even inequity. 
 Johnson v. Crane et al., N. S. iii. 254. 
 
 62. Party in interest cannot take acknowledgment. Groesbech v. Seeley, N. 
 S. iv. 572. 
 
 63. The recording acts of Wisconsin apply in favor of titles made through 
 judicial sales and conveyances. Ehle v. Brown et ah, N. S. xii. 121. 
 
 64. The execution, attestation, acknowledgment and recording of a deed is 
 primi facie evidence of delivery. Wells v. Jackson Iron Co., N. S. ix. 513. 
 
 rV. Generally, and herein of the Construction or Deeds and what 
 
 PASSES BT. 
 
 65. Deeds of trust to secure debts ; sales and title under ; subject discussed. 
 N. S. ii. 641, 705. 
 
 66. A commissioner's deed, vesting in the purchaser all the rights of the plain- 
 tiff, is not a snfBcient title to support the plea of the Statute of Limitations. 
 Craga v. Smalley, O. S. viii. 497. 
 
 67.' A deed by a, tenant in common of " sixty-four rods, being part of" the 
 
360 DEED. 
 
 lot held in common, passes no title in common ; nor in severalty, •without pos- 
 session taken under it. Phillips v. Tudor, N. S. iii. 184. 
 
 68. The copy of a deed not in the chain of title is evidence only of thecontents 
 of the paper, and requires same proof of execution as the original. Wells v. 
 Jaclcsai Iron Co., N. S. ix. .513. 
 
 69. Carson being indebted to an estate of which he was trustee made a deed 
 of certain of his real estate to himself as trustee. The deed was formally pre- 
 pared bv counsel under his instruction and he executed and acknowledged it, but 
 did not place it on record. After his death, insolvent, it was found among the 
 papers of the trust estate in his possession. Held, 1. That the circumstances 
 were sufficient proof of delivery ; and, 2. That the deed created a valid and bind- 
 ing trust against Carson and his representatives, and that the cestuis que trust 
 were therefore entitled to the property in preference to the administrator and 
 creditors. Carson's Adm'rs t. Phelps, N. S. xiv. 100. 
 
 70. The omission of a stamp on the deed did not render it invalid or inadmis- 
 sible in evidence, in the absence of proof that the stamp was omitted with intent 
 to defraud the revenue. Id. 
 
 71. Misreading a deed to a man too infirm to read it himself will avoid it at 
 law, but misinformation as to its legal eiFect will only be corrected in a court of 
 equity. Eaton v. Eaton, N. S. xiv. 121. 
 
 72. The test of capacity to make a deed is that the person has capacity to un- 
 derstand its nature and effect. Id. 
 
 73. A deed by a person of unsound mind, if taken in. good faith, is only void- 
 able and not void. Id. 
 
 74. A voidable deed may be ratified by acts of acquiescence. Id. 
 
 75. When the lines of a deed run to an artificial pond the grant is to-the centre 
 of the pond. Mansnr v. Blake, N. S. xiv. 194. 
 
 76. In construing a deed, proof is admissible of every material fact that will 
 enable the court to put itself in the position of the grantor, or to identify the 
 thing intended. Swain v. Salimanh, N. S. xiv. 318. 
 
 77. To show failure of consideration of note given for purchase-money, ven- 
 dee may prove that he was induced to purchase by fraudulent representations of 
 vendor. Id. 
 
 78. Though the consideration expressed in a deed be dollars, another may be 
 shown. Bailey v. Litten, Adm'r, N. S. xiv. 395. 
 
 79. The grantee of a deed inter partes is bound by the covenants and condi- 
 tions therein, though it is only signed by the grantor. Earle v. Xew Brunswick 
 ^ Mitchell, N. S. xiv. 702. 
 
 80. "Where the certificate of an officer to acknowledgment of a deed appears 
 on its face to be in substantial compliance with the statute, parol evidence to im- 
 peach it is inadmissible, unless there are allegations in the pleadings to warrant 
 it. Dolph V. Barney, N. S. xiv. 748. 
 
 81. The law presumes that a person acting in a public office was regularly 
 appointed to it, and also that official duty has been regularly performed. Id. 
 
 82. A deed which refers to, a plat of land for one of the lines of a boundary 
 may be read in evidence without the production of the plat. Dreery v. Cray, N. 
 
 83. Manure in a stable-cellar does not pass by a conveyance of the stable. 
 Prnctor v. Gilson, N. S. x. 200. 
 
 84. The grantees of a quarry are not to be limited in the amount of stone they 
 are to take, unless there is an obvious restriction in the grant. Marble Co. v. 
 Ripley, N. S. x. 201. 
 
 85. The grantor in an absolute conveyance cannot show by a parol agreement 
 that the grantee was to hold for his benefit, unless he proves fraud, mistake, or 
 accident. Morrall v. Waterson, N. S. X. 407. 
 
 86. Unsevered crops pass by a conveyance of the land. Tripp v. Hasceig, N. 
 S. X. 473. 
 
 87. Equity will only reform a mistake in a deed where it is committed by both 
 parties and is admitted or proved. Id. 
 
 88. Construction where premises and habendum are repngnant. I^.agg v. 
 Fames, N. S. vii. 573. 
 
 89. Korlot 120 feet, including sta;ble, &c., not reformed so as to include stable, 
 which in fact was on another lot. White v. Williams, N. S. vii. 187. 
 
 90. Keservation of use and occupancy for stated period by grantor not deter- 
 
DEED. 361 
 
 mined by leasing of part unless reservation is strictly personal. Cvoneu v. Hayes, 
 N. S. vii. 762. 
 
 91. Acceptance by grantee of deed with covenant as to manner of building is 
 equivalent to express covenant by him, and affects the title of his grantees. 
 Dock Co. V. Leavitt, N. S. vii. 636. 
 
 92. Covenant not to erect distillery broken by erection of machinery and build- 
 ing that might be used as such, though now used for other purpose. Id. 
 
 93. For strip of land for private road. Kilmer v. Wilson, N. S. vii. 379. 
 
 94. Sale of lots on street by metes and bounds, according to a plan. Warren 
 v. Blake, N. S. vii. 442. 
 
 95. Timber trees cut down, but lying on the ground, will pass by deed of the 
 land. Brackeltv. Gorfrfard, N.S. vii. 442. 
 
 96. Bill will not lie by grantor to reform a deed where jt appears a clause of 
 the original agreement was left out. Andrew v. Spurr, N. S. iv. 310. 
 
 97. A married woman who signs a deed with her husband relinquishes her 
 dower in the property, although not a grantor in the body of the deed, and no 
 mention be made of dower, Johnson v. Montgomery, N. S. ix. 715. 
 
 98. A deed or mortgage made by a married woman in Massachusetts, with- 
 out her husband, is void. Armstrong v. Ross, N. S. ix. 323. 
 
 99. Who to pay for stamp on deed. Note to McCreedy v. Callahan, N. S. iii. 
 242. 
 
 100. An instrument to be the deed of a corporation must be sealed with the 
 corporation seal by the proper officer. Koehler v. Black River Co., N. S. iii. 55. 
 
 101. Grant of way by deed. Walker v. Pierce, N. S. v. 767. 
 
 102. Witness to will must be competent at time of attestation, but to a deed 
 need only be competent at time of proving. Frink v. Pond, N. S. v. 704. 
 
 103. A deed of an infant is voidable only, not void. Irvine v. Irvine, N. S. 
 jx. 579. 
 
 104. Reservation of woodland "south of the meadow," includes all the wood 
 farther south than the meadow, though not in position directly south of it. Cronin 
 V. Richardson, N. S. iv. 310. 
 
 105. Deed of house and appurtenances includes a lot of ground used with the 
 house. Ammidowii v. Ball, N. S. iv. 310. 
 
 106. Held void for uncertainty of description. Clemens v. Rannels, N. S. iv. 
 121. 
 
 107. Whatever will pass by words in a grant will be excepted by like words 
 in an exception. Page v. Palmer, N. S. ix. 512. 
 
 108. Heirs and assigns must be expressly mentioned to be bound by a condi- 
 tion subsequent. Id. 
 
 109. The words to, from and by, in a deed, are terras of exclusion in refer- 
 ence to boundaries. Wells v. Jackson Iron Co., N. S. ix. 513. 
 
 110. Exception of rights, in a deed, in the nature of an easement, enures to 
 the benefit of grantor, his heirs and assigns, without words of limitation. Em- 
 erson V. Mooney, N. S. ix. 713. 
 
 111. When two properties are possessed by the same owner, and there has 
 been a severance made of part from the other, anything which was used, and 
 was necessary for the comfortable enjoyment of that part of the property which 
 was granted, must be considered to follow from the grant. Ewartv. Cochrane, 
 N. S. i. 175. 
 
 112. One bought land subject to the payment of the dower of a widow 
 charged upon it in the hands of the grantor, but the grantee did not sign nor 
 seal the deed, in the habendum of which the charge of the dower was expressed ; 
 he devised the land to his daughter by his will, and after his death, and when 
 the dower had become payable by the death of the widow, an action of do'bt was 
 brought against his executors for the dower, by those entitled thereto. Held, that 
 the words in the habendum of the deed to the testator did not in themselves im- 
 port a covenant or promise by the acceptance of it, to be personally answerable to 
 discharge the dower. Shoenberger' s Executors v. Hay, N. S. i. 564. 
 
 113. Where premises conveyed by deed were bounded easterly by a road or 
 public highway, without any words indicating an intention to limit the eastern 
 boundarv to the westerly line of the road: Held, that the words of the grant in- 
 cluded, by fair interpretation, the one-half of the road-bed. Dunham v. Wil- 
 liams, N. S. i. 570. 
 
 114. Where a purchaser dies before the period when, by the terms of the con- 
 
362 DEED. 
 
 tract, the first payment is to be made and possession of the land given, a sepa- 
 rate tender of the deed to all the heirs or devisees of the purchaser is not neces- 
 sary. It is suiEcient if a deed, conveying the premises to the heirs and devisees 
 be tendered to the executor, viho represents the testator's means of paying the 
 purchase-money. Brinkerhoffv. Olp, N. S. i. 309. 
 
 1 15. A covenant not to sue is in equity a release. Jones v. QuinnipiacJc Bank, 
 N. S. i. 316. 
 
 116. Where, in a contract for the sale and conveyance of land, there was no 
 other description of the premises except what was contained in the words "his 
 farm," it being clear, from the contract, that these words referred to the vendor's 
 farm, it was held to be a case of latent ambiguity which was susceptible of ex- 
 planation by parol evidence. Brinkerhoff v. Olp, N. S. i. 309. 
 
 117. For the purpose of proving a fraudulent intent on the part of a grantor 
 of real estate, evidence is competent to show that, on the same day of making 
 the conveyance in question he conveyed to near relatives all his other real and 
 personal estate not exempt from seizure on execution ; but evidence of his subse- 
 quent acts and declarations is incompetent. Taylor v. Robinson, N. S. i. 316. 
 
 118. Effect of omission of the word " heirs" in the habendum. See Breilen- 
 bach V. Dungan, 0. S. i. 419. 
 
 119. Deed with general warranty against all liens, &e. — when executed after 
 the day when the lien for the taxes for the current year attaches — covenant will 
 lie therefor. Long v. Moler, 0. S. iv. 767. 
 
 120. One purchasing land with notice of a covenant or agreement affecting 
 the same will be bound by it. Coles v. Sims, 0. S. iii. 123. 
 
 121. Covenants made by mistake set aside. Lawlon v. Campion, 0. S. iii. 124. 
 
 122. Covenants of warranty and title by estoppel. See Blanchard v. Ellis, 0. 
 S. iii. 59. 
 
 123; What is implied by the words "to make a good and sufficient deed of 
 conveyance." But-well v. Jackson, O. S. iii. 279. 
 
 124. Two deeds are made by an old man, by which he conveys the whole of 
 his property, not before disposed of, to one of his sons : it was held, that the 
 principle applied to wills in respect to the state of his mind, &c., is equally ap- 
 plicable to the case of this grantor, and that if the act was not attended with the 
 consent of his will, it is void. Greer v. Greer, O. S. iii. 52. 
 
 125. A deed to A. B. and his heirs except C. B., one of the sons of A. B., 
 conveys only a life-estate to A. B. Blake v. Hyde, O. S. iv. 172. 
 
 126. The remainder in fee vests immediately in those persons who will be- 
 come his heirs, if they survive him, excepting C. B., who takes by purchase and 
 not by inheritance. Id. 
 
 127. Qucere : Whether there is any just ground for the distinction between 
 deeds and other instruments in regard to the necessity of the use of the words 
 heir or heirs to create an estate in fee simple or fee tail. Id. 
 
 128. Meaning of " more or less " as applied to land. Phipps v. Tarpley, 0. 
 S. i. 700. 
 
 129. An exception in a grant of lands in these words "excepting and re- 
 serving out of the said piece of land so much as is necessary for the use of a 
 grist-mill on the east side of the road, at the west end of the said mill-dam," is 
 a good exception ; but until the grantor or his assigns exercise the right re- 
 served, and build the mill, it is not operative and ejectment cannot be sustained. 
 Mathews v. Mathews, 0. S. iii. 117. 
 
 130. A grantee by accepting a deed containing an exception of certain lands 
 previously sold and conveyed to another, and then entering into the possession 
 of the lands thus conveyed, will be deemed in law to have entered in subservi- 
 ency thereto ; unless he can establish the contrary by some clear and unequivocal 
 act or claim of title in himself. Rosseel v. Wickham, N. S. i. 700. 
 
 131. The owner of a lot of land sold a part of it by parol to a borough 
 corporation in 1841, received the purchase-money, delivered possession, and the 
 same year the borough erected a fire-engine house thereon ; no deed was exe- 
 cuted by the grantor and his wife until December 1842 ; before this, on the 
 6th September 1842, a judgment was entered against the grantor, upon which 
 execution issued, and the whole lot, including the portion bought by the borough, 
 was sold by the sheriff to the plaintiff in the judgment, who bought ejectment 
 and sought upon the trial to restrict the corporation from giving evidence of title 
 prior to their deed. Held, that the defendants could show the commencement of 
 
DEED. 363 
 
 their title under the parol purchase, from the date of their possession, which was 
 in itself notice of their- title, when brought to the knowledge of the plaintiff. 
 Pafton V. Borough of Hollidmjsburgh, N. S. i. 628. 
 
 132. For land taken in name of husband purchased with funds of the wife — 
 "burden of proof upon the husband to establish the gift. Wales \. Newbold, N. 
 S. i. 184. 
 
 1.'53. Deed void as to third persons on account of an adverse holding, is valid as 
 between the parties, though the vendee himself was in possession as tenant of 
 the adverse holder. Ahernethy v. Bouzman^ 0. S. iii. 55. 
 
 134. Reservation out of grant. Benson v. Miners' Bank, O. S. i. 437. 
 
 135. When merger of previous contract; parol evidence. See Galpin v. At- 
 waler, N. S. i. 313. 
 
 136. Where an estate to A. and his heirs, &o., is given in the premises of a 
 deed, but the word " heirs" is omitted in the habendum, the latter may be disre- 
 garded, and A. will take an estate in fee. Breitenbach v. Dunt/an, 0. S. i. 419. 
 
 137. President of corporation not liable on bond signed in his official capacity. 
 Ellis V. Pulsifer, N. S. ii. 182. 
 
 138. Deed absolute on its face will be held a mortgage, if it appear to be only 
 intended as security. Steel v. Steel, N. S. ii. 254. 
 
 139. Conveying premises, " subject to a mortgage executed by the parties of 
 the first part in the year 1856," sufficiently describes the mortgage. Johnson v. 
 Zink, N. S. viii. 439. 
 
 140. A deed made by a corporation created by the laws of Virginia must be 
 determined by the laws of Virginia. B. ^ 0. Railroad Co. v. Glenn, N. S. viii. 
 247. 
 
 141. Acknowledgment, it seems, is not necessary to a deed in New York for 
 the conveyance of a wife's separate estate. Wiles v. Peck, N. S. iii. 568. 
 
 142. A liusband can convey deed to his wife directly. Amperse v. Burdeno, 
 N. S. v. 275. 
 
 143. Creditor cannot contest validity of conveyance by bis debtor in an action 
 by grantee for trespass by execution against the land. Garbutt v. Smith, N. S. 
 iii. 188. 
 
 144. Grantee takes according to his deed, not by a map of a tract out of which 
 he buys a lot. Pen-in v. N. Y. C. Railroad Co., N. S. iii. 189. 
 
 145. A deed executed before the assignment of the patent passes the title. 
 Coon V. Browning, N. S. xii. 531. 
 
 146. Under the laws of 1862 of Kansas, the deputy county clerk could exe- 
 cute a valid tax deed. Whitford v. Lynch, N. S. xii. 595. 
 
 147. Where a deed is made and delivered upon a condition, if it is never per- 
 formed the deed is inoperative. Pendleton v. Hughes, N. S xii. 660. 
 
 148. Where a mortgage is foreclo.sed against all persons having any title of 
 record, a prior unrecorded deed is void against the sheriff's vendee in the fore- 
 closure suit. Elde v. Brown et al., N. S. xii. 121. 
 
 149. One having superior legal title or possession without disturbance cannot 
 bring action to set aside deed by former party on ground of fraud. Butler v. 
 Viele, N. S. v. 508. 
 
 150. Grant of a "way" carries an easement only. Agueduct Co. v. Chandler, 
 N. S. V. 186. 
 
 151. Instrument conveying a base fee. Id. 
 
 152. General release will not include land previously conveyed by unrecorded 
 deed. Id. 
 
 153. Life-estate excepted from grant. Id. 
 
 154. Description of boundary therein. Wellfleet v.-Truro, N. S. v. 186. 
 
 155. If name of one of the makers be omitted from body of the deed, his interest 
 in premises is not conveyed thereby. Peabody v. Hewett, N. S. vi. 185. 
 
 156. What will pass by a quit-claim deed. Hamilton v. Doolittle, N. S. vi. 
 119. 
 
 157. To be enforced according to intention. Id. 
 
 158. When it will pass all lands owned by grantor at time of its execution. 
 Id. 
 
 159. Wine plants growing in ground will pass by an absolute conveyance, 
 though reserved by parol. Wintermute v. Light, N. S. vi. 185. 
 
 160. What was meant by "zinc" in a deed might be explained by evidence 
 dehors. Zinc Co. v. Franklinite Co., N. S. vi. 568. 
 
364 DEED— DELAWARE RIVER. 
 
 16T. Construction of word " premises" in a deed may be assisted by resort to 
 previous written agreement between the parties. Zinc Co. y. Franklinite Co., N. 
 S. vi. 568. 
 
 162. No stranger can take advantage of breach of conditions in a conveyance. 
 U. 
 
 163. Estate is not forfeited until re-entry. Id. 
 
 164. Effect of neglect and verbal refnsal to perform condition. Id. 
 
 165. Condition subsequent. Rpwson v. School District, N. S. iii. 507. 
 
 166. Ratification of deed made during insanity. Bond v. Bond, N. S. iii. 507. 
 
 V. Of Deeds in Escrow. 
 
 167. An escrow, signed, sealed and deposited, is not recoverable by the depos- 
 itor, except according to the terms of the agreement and deposit. Stanton v. 
 Miller, N. S. xii, 729. 
 
 168. The depositary is as much an agent of the grantee as of the grantor. 
 Id. 
 
 VI. Op thb Cancelling and Desteuction of a Deed. 
 
 169. The question is well settled at common law that the cancellation of a 
 deed by consent of parties will not divest the grantee and revest in the grantor 
 an estate which has once vested. Wilson v. Hill, N. S. i. 762. 
 
 170. The title to lands vested in a married woman by an unrecorded deed .can- 
 not be divested by her parol consent that such deed may be cancelled, and a con- 
 veyance made by her grantor. to her husband. Id. 
 
 171. Destruction by parties after delivery will not re-jn vest grantor with title. 
 Fonda v. Sage, N. S. vi. 59. 
 
 VII. Op the Recital, and how pae Evidence. 
 
 172. Recital in is only evidence against parties and.their privies. Mining Co. 
 V. Isbji, N. S. ix. 638. 
 
 DELAWARE RIVER. 
 
 1. Fisheries annexed to the shores of the river Delaware — opinion of lion. 
 Joel Jones. O. S. iv. 582. 
 
 2. The board uf wardens of the port of Philadelphia, under the Acts of 1 803 
 and 1818, have jurisdiction to authorize the construction of wharves, &c., in the 
 river Delaware, as far north as the mouth of Frankford creek. Frankford v. 
 Lennig, 0. S. i. 357. 
 
 3. But the board has no jurisdiction out of the tide-way of the river, and can- 
 not authorize such construction in the creek itself. Id. 
 
 4. The board of wardens cannot confer any right on the owners of land 
 bordering on the river to encroach upon its channel, so as to create a purpresture 
 or public nuisance. Id. 
 
 5. The owners of land in Pennsylvania, bordering on a navigable river, have 
 not the right of soil to the centre of the stream. They have, however, the right 
 to erect wharves or buildings to ordinary low-water mark ; and this right in the 
 port of Philadelphia is not, it seems, dependent on the license of the board of 
 wardens. Id. 
 
 6. A gradual alteration of the channel of a navigable stream will control the 
 : rights of the owners of .adjacent land to erect wharves therein. Id. 
 
 7. By the law of Pennsylvania, the river Delaware is a public navigable river, 
 held by its joint sovereigns in trust for the public. Id. 
 
 8. Riparian owners in th^t state have no title to the river, or any right to 
 1 divert its waters, unless by license from the states. Id. 
 
 9. That such license is revocable and in subjection to the superior right of 
 the state to divert the water for public improvements, either by the state directly 
 
 , or by a corporation created for that purpose. Eundle, .Trustee, v. Delaware and 
 Raritan Canal Co., 0. S. i. 326. 
 
 10. The proviso to the Provincial Acts of Pennsylvania and New Jersey of 
 1791, does not operate as a grant of the usufruct of the waters of the river to 
 Adam Hoops and his assigns, but only as a license or toleration of his dam. Id. 
 
 11. As by the laws of his own state, the plaintiff, who claimed under Hoops, 
 could have no remedy against a corporation authorized to take the whole waters 
 of the river for the purpose of canals or improving the navigation, so neither can 
 he sustain a suit against a corporation created by New Jersey for the same pur- 
 pose, who have taken part of the waters. Id. 
 
 12. The plaintiffs beingbut tenants at sufferance in the usufruct of the water 
 to the two states who use the river as tenants in common, are not in a condition 
 
DELAWARE RIVER— DELIVERY. 365 
 
 to question the relative rights of either to use its waters without consent of the 
 other. Rundel, Trustee, v. Delaware ^ Raritan Canal Co , 0. S. i. 326; 
 
 13. This case is not intended to decide whether a first licensee for private emol- 
 ument can support an action against a later licensee of either sovereign or both, 
 who, for private purposes, diverts the water to the injury of the first, Id, 
 
 DELIVERY. See Bebtok and Creditor. 
 
 1. Mere recording without knowledge of or dcliTOry to grantee is not legal de- 
 livery, and subsequent ratification by grantee will not out out an intervening 
 mortgage for value. Parmelee v. Simpson, K. S. vii. 60. 
 
 2. As a general thing, a ratification of an unauthorized delivery can be made 
 bv the grantee, but not when the effect would be to cut out intervening mortgage. 
 Id. 
 
 3. Delivery to third person by direction of grantee is sufficient. Batch v. 
 Sates, N. S. vii. 4+2. ' 
 
 4. None but creditor of grantor can object to want of consideration. Td. 
 
 5. Evidence of fact of. Cooper v. Burr, N. S. v. 567. 
 
 6. What is sufficient. Id. 
 
 , 7. Delivery of chattels necessary to effectuate sale as against creditors. Hugus 
 V. Robinson, O. S. ii. 181. 
 
 ' 8. The liability of a common carrier continues until the merehandise is de- 
 livered to consigiwe at the port of discharge. Vose v. Allen. O. 8. ii. 563, 
 
 9. The liability of common carrier continues until actual delivery tb the next 
 carrier. Fenner v. Railroad Co. , N. S. vi. 63. 
 
 10. When delivery is presumed. Fonda v. Sage, N. S. vi. 59. 
 
 11. Facts not constituting delivery. Id. 
 
 12. Delivery by express company must be actual, and where the company's 
 argent abstracts a parcel, the company will be liable though receipt be given. 
 Express Co. V. Haggard, N. S. vi. 121. 
 
 13. Where actual delivery does not attend the sale It is fraudulent, and the 
 court is bound to tell the jury so. Barr v. Reitz, N. S. vi. 693. 
 
 14. The burden of proving the delivery lies on the purchaser, who must es- 
 tablish his possession by sufficient evidence. Id. 
 
 15. Delivery to agent of grantor with orders to deliver it presently to grantee 
 passes title at once. Ernst v. Reed, N. S. vii. 573. 
 
 16. When the consignee of the cargo of a vessel at sea sells cargo and delivers 
 the bill of lading to the purchaser, the sale is valid. Audenreid v. Randall, N. S. 
 vii. 659. 
 
 17. To render a transfer of property valid against creditora it was formerly 
 held that the possession must pass to transferee, but now the character of the 
 sale may be investigated and left to the jury. Leech v. Shantz, O. & v. 620. 
 But see Hugus v. Robinson, 0. S. ii. 181. 
 
 18. Moveable property sold but not paid for may, on the discovery of the 
 vendee's insolvency, be .seized by the vendor. Campbell v. Cabeen, 0. 8. v. 683. 
 
 19. To make valid delivery must pass into hands of grantee or some one for 
 him. Johnson v. Farley, N. S. v. 699. 
 
 20. Delivery presumed from statement in will of grantor. Thompson^ Ex- 
 ecutor V. Lloyd, TS. S. v. 125. 
 
 2 1 . Delivery of goods to consignee — what constitutes. See Davies v. BradUy, 
 O. S. V. 232. See Lien. 
 
 22. Where the bark Tangier had arrived in the harbor of Boston, on the 5th 
 of April, with a cargo of cotton, and commenced to discharge her cargo on 
 Monday, the 7th, and on the same day the master gave the consignees notice of 
 her readiness to deliver, and the wharf was filled with the bales, which were not 
 taken away by the consignees ; a second notice was given on Tuesday, the 8th, 
 to the consignees, and on Wednesday morning a third notice ; on Thursday the 
 remaining bales were unladen and placed on the wharf. The consignees carted 
 away five ffiiles, and postponed taking the rest until the next day, assigning as a 
 reason that Thursday was " Fast day," by public proclamation ; and in the af- 
 ternoon of that day, the cotton still remaining on the wharf was consumed by 
 an accidental fire. Held, reversing the decree of the Circuit Court, that the de- 
 livery was a good delivery to the consignees, and that the lass by fire could not 
 be imposed upon the bark. Richardson v. Ooddard, 0. S. viii. 278. 
 
 23. A carrier by water carries from port to port, or from wharf to Wharf, and 
 is not bound to deliver at the warehouse of the consignee ; and it is the duty of 
 
366 DELIYEKY— DESCENT AND DISTRIBUTION. 
 
 the consignee to receive the goods out of the ship, or on the wharf; but, to con- 
 stitute a valid delivery, the carrier must give due and reasonable notice to the con- 
 signee, so as to afford him a fair opportunity of removing the goods, or placing 
 them in safe custody. Richardson v. Goddard, 0. S. viii. 278. 
 
 24. In the port of Boston there is no general custom or usage engrafted into 
 the maritime law, and making a part thereof, which forbids the unloading of ves- 
 sels, and tender of freight to the consignees on a day set apart by proclamation 
 for a church festival, fast, or holiday. Id. Reversed on appeal from the Circuit 
 Court of the United States. See Manufacturing Co. v. The Tangier. O. S. vi. 504. 
 
 25. Holidays do not seem to be favored in commercial law. The subject of 
 holidays discussed historically, and as matter of judicial decision. Id. 
 
 DEMURRAGE. 
 
 A charterer must prove undue delay in discharging the vessel, to relieve him 
 from a claim of demurrage. Crowe v. Hutchinson, O. S. i. 52. 
 
 DEMURRER. 
 
 I'o declaration for maliciously instituting suit in a foreign court. Castrique v. 
 Behrens, N. S. i. 48. 
 
 DEPOSIT. 
 
 1. Money of a company deposited as such is the money of the corporation in 
 the hands of the banker. Penrose v. Erie Canal Co., O. S. vii. 126. 
 
 2. Check drawn on the bank by a depositor who has funds therein is to be re- 
 garded in law as a transfer to the payee of the funds. Fogarties v. Staie Bank, 
 0. S. viii. 3a3. 
 
 DEPOSITION. 
 
 1. Notice to appear before A. at a certain time to take deposition : deposition 
 taken before B. at said time not admissible. Henry v. Huntley, N. S. iv. 253. 
 
 2. Deposition cannot be objected to, after reading on trial without exception, 
 though previously had moved to suppress it. Brown v. Tarkington, N. S. v. 565. 
 
 3. No exception lies to the decision of a judge of the Supreme Court upon the 
 question whether a deposition which has been read in evidence in a trial (■hall be 
 delivered to the jury when they retire to consider of their verdict. Whithead v. 
 Keyea, N. S. i. 567. 
 
 DEREnCT. 
 
 A ship abandoned at sea, was taken possession of by a small schooner, and 
 after being towed some time by the schooner, was boarded by several men from 
 the President steamer, who took possession of her, and towed her into Liverpool. 
 The action on behalf of the President was entered in the names of certain per- 
 sons, who, being underwriters of the ship and cargo, hired the steamer for the 
 purpose of salving the Pickwick. Held, that the schooner was entitled to sal- 
 vage as first salvor ; that the steamer, looking to the danger of the ship, and 
 the small size of the schooner, was justified in taking possession of the ship, and 
 the persons hiring the steamer wjjie entitled to salvage as owners for the time. 
 The Pickwick, O. S. i. 52. 
 
 DESCENT AND DISTRIBUTION. 
 
 1. Under the Indiana Statute of Distributions, the word "natural" is to be 
 understood and interpreted as meaning legitimate. Barns v. Allen, 0. S. ix. 
 747. 
 
 2. Under that statute the adoption of an heir confers upon him the right of in- 
 heritance in the same manner as if he were a legitimate heir. Id. 
 
 3. Where a wife has received from her husband, during his lifetime, certain 
 real estate, not in lieu of a provision by will or of dower, but absolutely, such 
 gift is not to be regarded in the light of an advancement, either at the common 
 
 ' law or under the Indiana statute. Id. 
 
 4. When a canon of descent makes the right of inheritance to depend on per- 
 sonal status, such status must be ascertained from the lex domicilii. Barney v. 
 Ball, N. S. X. 65. 
 
 5. The Intestate Law of Pennsylvania of 1833 provides that on the death of a 
 person without issue, his parents shall take his real estate during their joint lives 
 and the life of the survivor of them. A private statute of that state passed in 
 1853 enacted that A. and B., children of C., should have all the privileges, &c., 
 of children born in lawful wedlock, and inherit and transmit real estate as such. 
 
DESCENT AND DISTRIBUTION— DISCOVERY. 367 
 
 These were the offspring of C. and of X., who had afterwards married Y. A. 
 died intestate without issue, in 1859, at which timeC, X. and Y. were all living. 
 Held, that C. and X., as the legitimate parents of A., took a joint life-estate in 
 his lands. Killam v. Killam, N. S. 1. 18. 
 
 6. Held, also, that the Act of 1855, which provides that the estate of a bastard 
 shall, on his intestacy without issue, pass to his mother absolutely, did not apply. Id. 
 
 7. Effect of an Act of Assembly to legitimate bastard. Id. 
 
 DESCRIPTION OF LAND. 
 
 Effect of want of precision in, on sale for taxes. Doe ex dem. Aten v. Stewart, 
 O. S. iv. 766. 
 
 DESEKTION. See Husband and Wife. 
 
 1. Act .3d of March 1865, imposing penalty for desertion, ianot ex post facto. Id. 
 
 2. A deserter is not excluded from his right to vote by the Act of 1865, until 
 adjudged a deserter by a court martial. Huber v. Reily, N. S. vii. 57 ; and see 
 Stverance v. Nealey, N. S. xi. 331. 
 
 3. Enlistment and desertion may be proved otherwise than by the record. 
 Lebanon v. Heath, N. S. vii, 315. 
 
 4. Desertion by wife deprives her of her right to claim $300 out of husband's 
 estate under Act of 1851. Tozer v. Tozer, O. S. ii. 510. 
 
 5. Desertion defined. Ingersoll v. Ingersoll, N. S. v. 188. 
 
 DETINUE. 
 
 An attorney who receives his client's deed to keep for him, and loses it, is 
 primS, facie liable to an action of detinue on the part of his client. Reeve v. 
 Palmer, 0. S. vii. 567. 
 
 DETROIT. 
 
 Conveyances of government lands in, by governor and judges, not within ordi- 
 dinary recording laws. Moran v. Palmer, N. S. v. 62. 
 
 DEVISE. 
 
 1. Mother taking real estate by devise from husband, becomes stock of new 
 descent. Opdyke's Appeal, N. S. v. 255. 
 
 2. A devise of lands " in trust for the formation and support of a home for 
 aged, infirm, or invalid gentlemen and merchants," held valid as a trust and as 
 a charitable use. Cresson v. Cresson, 0. S. vi. 42. 
 
 DICKINSON, JOHN. 
 
 1. Brief biographical sketch of. See foot-note, O. S. i. 75. 
 
 2. Opinion of, upon the will of Samuel Richardson. 0. S. i. 79. 
 
 DICTA. 
 
 Of Chancellor Kent, 3 Comm. 106; and of Judge Story, comments on 
 Bills, section 261, overruled. Law^on V, Bank of Salem, O. S. i. 627, 628,629. 
 
 DILIGENCE. See Railroad. 
 
 DIRECTORS. 
 
 Acts required to be done by the directors of a company must be done by them 
 when lawfully convened. Johnson v, Jones, N. S. xii. 467. 
 
 DISCHARGE OF RECOGNISANCES. 
 
 Witnesses to testify, the court will not discharge on intimation that the attor- 
 ney-general does not think it a proper case for prosecution. Reg. v. Freaklei/, 
 0."S. ii. 118. 
 
 DISCIPLINE OF THE BAB. Leading article upon. N. S. ii. 691. 
 
 DISCONTINUANCE. 
 
 Effect of permitting a cause to slumber. Pittman v. Bank, 0. S. i. 378. 
 
 DISCOVERY. 
 
 1 . When feme covert trustee, wife of one of the principal defendants, bound to 
 make. Bank v. Clark, N. S. vi. 246. 
 
 2. Will not give title to islands irrespective of Act of Congress 18th August 
 1856. Amer. Guano Co. v. United States Guano Co., N. S. v. 252. 
 
 3. Island newly discovered by its citizens, belongs to United States. All cit- 
 izens possess equal rights to go there. Id. 
 
 4. Who can claim as first discoverer under Act of CongreHS. Id, 
 
368 DISGOVERY— DIVIDEND. 
 
 5. What applications for discovery of books and papers must state. Walker 
 V. Bank, N. S; v. 318. 
 
 6. Extent of right to discovery. Id. 
 
 7. Plaintiff not entitled to discovery to enable him to ■ prepare complaintl and 
 insert names of real defendants. Opdi/key. Marble, N..S.v> 253, 
 
 DISHONOR, Notice op. 
 
 In an action by the indorsee against the drawer of a bill of exchange on B., 
 the following writing was held to be a sufficient notice Of dishonor : " B.'s ac- 
 ceptance to J. [the defendant] for 500/., due on the 12th January, is unpaid. 
 Payment to R. & Co. is required before four o'clock." Paul v. Joel, 0; S. vii. 681. 
 
 DISSOLUTION OF PARTNERSHIP.^ Subject discussed. O. S. vii. 129; 
 
 DISTILLED SPIRITS. 
 
 Under the Act of Congress which provides that no distilled spirits shall be im- 
 ported into the United States in casks less than ninety gallons capacity, on pain 
 of forfeiture of the spirits and the vessel^ — where the spirits were received on 
 board secretly by employees, in violation of the act, held that the vessel was not 
 liable to forfeiture. United States v> The Propeller Gov. Cushman, N. S. v. 286. 
 
 DISTILLERY. 
 
 1. Covenant trottoerect distillery broken by erfection of machinoryand build- 
 ing which might afterwards be used as a distillery. Dock Co. v. Leavett, N. 
 S. vii. 636. 
 
 2. The words ''personal property" do not include all the personal property 
 found in the same building where the still and illicitly distilled spirits Svere found. 
 United States v. Thirty-three Barrels, N. S. vii. 365. 
 
 3. The words "personal property" in section 48 of the Internal Revenue Act, 
 include all the property in the building where the spirits are found. United 
 States V. Quantity of Bags, N. S. viii 363. 
 
 DISTRESS. 
 
 1 . Cattle doing damage on the highway were not distiiainable at common law. 
 Taylor v. Welbey, N. S. xiv. 254. 
 
 2. The Statute of Wisconsin on distress is a complete revision of the whole 
 subject of distress damage feasant. Id. 
 
 3. The statute limits the distraining of beasts to those doing damage within 
 the enclosure of the distrainor. Id. 
 
 4. Cattle distrained damage feasant without-legal authority, even if reclaimed 
 forcibly, cannot be replevied. Id. 
 
 DISTRIBUTION. 
 
 The rule of common law, sesina facit stipitem, held not to be in force in 
 Georgia ; and that atiy estate, real or personal, held by any title, legal or equit- 
 able, without actual seisin, will descend to the heirs of the owner. Thompson v. 
 Sandford, 0. S. ii. 380. 
 
 DISTRINGAS. 
 
 Distringas as a mode compelling an appearance in a criminal case is a writ 
 unknown to our law. Indiana v. 0. Sr M. Railroad Co., N. S, iv. 583. 
 
 DITCH. See Waters and Watehcoxjrses. 
 
 The value of a water ditch is its capacity and the market value of water in its 
 vicinity. Clark v. Willet, N. S. viii. 504. 
 
 DIVIDEND. 
 
 1. Dividends belong to the persons owningithe stock at the time they are actu- 
 ally declared. Brundage v. Brundage, N. S. xiii. 124. 
 
 2. In a suit to recover dividends declared "payable in dollars," evidence is 
 inadmissible to show that the corporation received'its earnings in anything else 
 than dollars. Scott v. Central Railroad^ Bank Co., N. S. viii. 310. 
 
 3. The accumulated surplus of an incorporated company are part of its earn- 
 ings, and as such belong to the remainder-man, but an extra dividend belongs to 
 the life-tenant. Van Doreri v. Van Daren's Trustee, N. S. viii. 189. 
 
 4. Right of holder of contract for sale of stock to dividends. Lomhardo v. 
 Case, N, S. v. 564. 
 
 5. Scripholders have no right to dividends upon the scrip nor on the stock be- 
 fore conversion, except on such as had been declared subsequent to such conver- 
 sion. Brown v. LeUgh Nav. Co., N. S. v. 184. 
 
DIVORCE— DOCKET. 369 
 
 BIVORCE. 
 
 1. Evidence of misrepresentations of chastity to sustain petition to annul mar- 
 riage. Donovan v. Donovan, N. S. v. 187. 
 
 2. It is a rule in the common law that contracts between husband and wife 
 are Yoid, and will not be enforced. Sweeney v. Damron, N. S. ix. 61. 
 
 3. Decree in divorce cannot be made by consent nor a decree confirming a di- 
 vorce. Appealed from Robinson v. Robinson, N. S. vi. 636, 
 
 4. Courts cannot divorce parties not married in the state nor residents. Calef 
 V. Calef, N. S. vii. 443. 
 
 5. In an action by a wife against a husband for a divorce on the ground of 
 cruelty, the defendant cannot have a judgment annulling the marriage on the 
 ground that the wife had a former husband living at the time it took place, even 
 upon the default of the plaintiff at the hearing. Linden v. Linden, N. S. i. 509. 
 
 6. Evidence of the contents of lost portions of the record is admissible after 
 existence and record having been proved. Miltimore v. Miltimore ^ De Bourbon, 
 N. S. i. 566. 
 
 7. The court has power to declare a marriage void into which a man was in- 
 duced to enter by confiding in representations of the woman whom he took for 
 his wife that she was chaste, when in fact she was with child by another man, if 
 her husband repudiated her as soon as he had reason to know tlie fact. Reynolds 
 V. Reynolds, N. S. i. 568. 
 
 8. The late court of chancery had no authority, in a divorce suit, to require a 
 married woman to accept a gross sum from her husband in lien of, and in satis- 
 faction of, her dower. And lier acceptance of such a sum, in the lifetime of her 
 husband, will not defeat her dower. Crain v. Cavann, N. S. i. 768. 
 
 9. Divorce on the ground of adultery will not be decreed upon the uncor- 
 roborated testimony of the particeps criminis herself that she was unchaste and un- 
 truthful. Clare v.' Clare, N. S. viii. 122. 
 
 10. A marriage will not be annulled for impotence. Anonymous, N. S. xiii. 
 56. 
 
 11. A decree for divorce should not direct the payment by the defendant of 
 arrears of alimony. Galinger v. Galinger, N. S. xi. J 97. 
 
 12. Upon granting a divorce, whether on account of the wife or of the hus- 
 band, the court has power to award to her the ]iossession of the homestead. 
 Brandon v. Brandon, N. S. xiv. 449. 
 
 13. Mutual insults and outrages, the fruit of mutual provocations, unless there 
 be a palpable disproportion of guilt as between the parties, furnish no sufiScient 
 ground for divorce. Trowbridge v. Carlin, and Carlin v. Trowbridge, 0. S. vi. 
 740. 
 
 14. Disappointment in the marriage relation, and incompatibility of temper, 
 are not causes for decreeing a judicial separation between husband and wife ; but 
 outrages and cruel treatment of a nature to render conjugal life intolerable, pro- 
 vided the complaining party is comparatively innocent, are sufficient to obtain a 
 decree. Id. 
 
 15. The texts of the civil law on this subject cited and commented on. Id. 
 
 16. The doctrine of the canon law adopted in Louisiana. Id. 
 
 17. A decree of divorce from the bonds of matrimony, although obtained by 
 fraud, cannot be set aside on an original libel filed at a subsequent term. Greene 
 T. Greene, 0. S. iv. 42. ' 
 
 18. Cruelty condoned is not revived by subsequent desertion. Hart v. Hart, 
 O. S. iii. 700. 
 
 DOCK. 
 
 1. The owner of lands on a navigable stream over which the tide ebbs and 
 flows, may maintain trespass against one who uses the land. Whittaker v. Burn- 
 ham, N. S. xi. 724. 
 
 2. The right of docking must not impair the right of navigation. Bay City 
 Gas Co, v. Industrial Co., N. S. xiii. 526. 
 
 DOCKET. 
 
 Though one verdict and judgment in ejectment upon an equitable title is con- 
 clusive between the parties, and a bar to any subsequent ejectment for the same 
 land, yet in order to have this effect the judgment upon the verdict must have 
 been regularly entered on the record ; it is not enough that the jury fee was paid 
 after verdict, and an entry thereof indexed in the lien docket. Ferguson v. Staver, 
 N. S. i. 691. 
 24 
 
370 DOCUMENTS— DOMICILE. 
 
 DOCUMENTS. 
 
 Privileges of attorneys in the production of, discussed. O. S. i. 517. 
 
 DOG. 
 
 1. Liability of owner for injuries by. Munn v. Reed, N. S. ii. 254. 
 
 2. Under the general statutes of New Hampshire the owner of a dog is liable 
 to double damages of the person injured. Orne v. Roberts, N. S. xii. 55. 
 
 DOLI/AES. See Constitutional Law. 
 
 1 . A contract to pay dollars made between citizens of the United States is a 
 contract to pay lawful money. Tharington v. Stnith, N. S. riii. 739. 
 
 2. Meaning of words " in specie." Trebilcock v. Wilson, N. S. xi. 151. 
 
 DOMESTIC ANIMALS. 
 
 1. Responsibility of owner for damage done on the highway. Editorial com- 
 ments on recent case of Cox v. Burbridge, N. S. iv. 140. 
 
 2. The common law doctrine that the owner of domestic animals is bound to 
 keep them upon his own premises, and makes him a trespasser if he suffers them 
 to run at large, is not the law of Ohio. EHiott v. Railroad Co.'O. S. iv. 693. 
 
 3. Cattle, &e., running at large — law of Ohio as to. Kerwhakar r. Railroad 
 Co., 0. S. lii. 341. 
 
 DOMICILE. See Conflict of Laws. 
 
 1 . The question of domicile discussed, and how far that of the wife is controlled 
 by the husband. N. S. iv. 129. 
 
 ' 2. Declarations in a will are evidence of domicile at a time shortly after. Wil- 
 son V. Terry, N. S. iv. 704. 
 
 3. A domicile once acquired continues till a new one is gained. While in 
 transit the old domicile remains. Littlefield\. Brooks, N. S. ii. 735. 
 
 4. An inhabitant of A., on 30th March, leaves that place with the intention of 
 residing in C. ; on 1 st April he arrives at B., and the next day reaches C, where 
 he establishes his residence. It was held, that for the purposes of taxation he 
 was to be deemed an inhabitant of A. on 1st April, and was liable to taxation 
 there. Id. 
 
 5. Domicile is controlled by intention, and intention is evidenced by circum- 
 stances as well as declarations. Dttpuy v. Seymour, N. S. xii. 595. 
 
 6. There is no arbitrary rule by which domicile may be proved. Id. 
 
 7. The domicile of birth or origin continues until it is proved to have been 
 abandoned or another obtained. Id. 
 
 8. What evidence sufficient to acquire new. Whitney v. Sherbom, N. S. vi. 
 316. 
 
 9. Altliough an actual change of domicile, by consent of the master, from 
 a slave to a free state, has the eifect to manumit a slave, yet a mere sojourn 
 in Ohio, or transit through the state by a slave domiciled in Kentucky, does not 
 have such effect. Poindexter v. Anderson, 0. S. vi. 78, 
 
 10. Although involuntary servitude cannot be required, in Ohio, of a negro 
 slave from Kentucky, sojourning in this state, yet where a negro slave domiciled 
 in Kentucky, after having been in Ohio on an errand, or in itinere, has volunta- 
 rily returned to his state of servitude in Kentucky, his status as a slave continues 
 by the laws of that state, and must be recognised by the courts of Ohio, when 
 brought under consideration in connection with a contract made in Kentucky. 
 Id. 
 
 1 11. To constitute a change, there must be intention to make, *n'd the fact of 
 
 making. Parsons v. Bangor, N. S. xiii. 256. 
 
 12. The acts and intentions of the wife do not affect the domicile of the hus- 
 band. Id. 
 
 1 3. The general principle that personal property is to be taxed according to 
 the law of the owner's domicile, and real estate according to the place where it 
 is situated, has been somewhat changed by statute ; but no alteration has been 
 made which authorizes the collection of collateral inheritance tax where neither 
 the property to be taxed nor the domicile of the owner was within the state at the 
 time of his death. Commonwealth y^ Stewart's' Ex'r, 0. S. i. 638. 
 
 14. The domicile of origin continues until it is changed by acquiring one else- 
 where ; but where a man removes to a foreign country, settles himself there, and 
 engages in the trade of the country, the presumption in favor of the continuance 
 
DOMICILE— DONATIO MORTIS CAUSA. 371 
 
 of the domicile of origin ceases, and the burthen of disproving the domicile of 
 choice is cast upon him who denies it. Commonu'ealth v. Stewart's Ex'r, 0. S 
 i. 638. 
 
 15. If will is executed according to the law of the domicile, at the time of 
 death, it is valid. Note to Moultrie v. Hunt, O. S. i. 167. 
 
 16. Rules of distribution are those of the domicile of the testator at the time 
 of his death. Id. 
 
 17. Personal property no situs, but its title, transfer, &c., is regulated by the 
 domicile of owner. Hartford v. Paine, O. S. ix. 553. 
 
 18. Domicile defined and considered. Russell's Heirs v. Randolph, 0. S. iii. 
 560. 
 
 19. A man cannot at least in reference to personal estate have two domiciles. 
 Every person born in lawful wedlock acquires by birth thedomicile of his father, ex- 
 cept perhaps a few excepted cases, as the gipsies. Forbes v. Forbes, 0. S. iii. 255. 
 
 20. The domicile of an infant cannot be changed by his own acts. Id. 
 
 21. A new domicile cannot be acquired unless by a concurrence of intention 
 and act. The mere possession of real estate not coupled with residence is of no 
 value with reference to domicile. Id. 
 
 22. A married man, having two habitual residences, in one of which his wife 
 resides, who never goes to the other, is domiciled in that residence in which the 
 wife resides. Id. 
 
 23. Judgments in England will give no priority against assets in England be- 
 longing to a testator dying domiciled abroad ; and the effect can only be given 
 to them with reference to the laws of the domicile. Wilson v. Lady Dunsany, 0. 
 S. iii. 124. 
 
 24. From comity and consideration of mutual interest, foreign states recog- 
 nise and give effect almost universally to those laws of the domicile which con- 
 stitute the status, quality or capacity of the person, and which place minors 
 under the authority of guardians and tutors, respect being had to the sentence 
 
 . of the appropriate tribunal in the place of domicile. In re Dawson, O. S. iv. 241. 
 
 25. In the case of a minor born in the city of New York, of a father there 
 resident a naturalized citizen, and a mother there resident a native citizen, the 
 residence of the parents there continuing until their decease, the place of birth 
 and the domicile of the parents made New York the place of the domicile of the 
 child. Id. 
 
 26. The domicile of origin can be changed only by choice, and a domicile of 
 choice cannot be acquired by the acts of the minor or any other person, except 
 the parents or the guardian. Id. 
 
 DOMINOES — a game of chance. In re Askton, 0. S. i. 57. 
 
 DONATIO MORTIS CAUSA. See Gift ; Husband and Wife. 
 
 1. Evidence showing the affection and regard of the decedent for the donee, is 
 admissible to sustain a gift as a donatio causa mortis. Rhodes v. Childs, N. S. 
 X. 347. 
 
 2. Donationes causa mortis are revocable by the donor, and ambulatory during 
 life. Id. 
 
 3. Married women may take donatio mortis causa in Massachusetts without 
 husband's consent. Marshall v. Berry, N. S. vii. 121. 
 
 4. Rights of donee mortis causa, and subsequent of the same. Note to Craige 
 V. Kittredge, N. S. vi. 249. 
 
 5. A gift of all the donor's property in prospect of death is a will and a 
 donatio mortis causa. It is not valid unless executed as a written or as nun- 
 cupative will. Headley v. Kirby, 0. S. i. 25. 
 
 6. In support of an alleged donatio mortis causa, the evidence was that the 
 decedent said, in extremis, to the donee : " Ann, I am dying ; all I have is with 
 you, and all is yours ; do what you can for me ; there are my keys." The de- 
 cedent had then in her room two trunks, one containing clothing, and the other a 
 non-negotiable note and a deposit-book with saving fund society, and other 
 articles. The beneficiary thereupon took the keys, which were hanging at the 
 bedside, in the presence of the donor. Held, that the court below erred in per- 
 mitting the evidence to go to the jury. Id. 
 
 7. Cases of donationes mortis causa are exceptions not to be extended by way 
 of analogy. Id. 
 
372 DOWER. 
 
 DOWER. 
 
 1. Eight, of tenant in an action of dower is not estopped from showing that 
 the seisin of the husband was not such as to give his wife a right of dower, 
 where he or his grantor has accepted a deed of the premises from the liusband 
 and claims under it, although he may be estopped from denying the right of the 
 husband to give the deed. Foster v. Dwinel, N. S. i. 604. 
 
 2. Estoppels are mutual. The wife is not estopped if the husband in a deed 
 mistakes his title, as one not giving dower. Id. 
 
 3. Dower is no part of the estate of the husband, but an independent and in- 
 choate right, which may become an interest in the estate after his death, if his 
 seisin was such as to give it. But the law will not create this estate by the oper- 
 ation of an estoppel where it otherwise would not exist, where the tenant has 
 simply accepted a deed from the husband, which does not allude to the matter of 
 dower, or to the existence of the wife. Id. 
 
 4. Where it appears in the deed from the husband that his title is only that of 
 mortgagee before foreclosure, no estoppel can arise. Id, 
 
 5. The wife of a mortgagee cannot claim dower in an estate until the same is 
 foreclosed by the husband. Id. 
 
 6. A married woman who signs a deed with her husband relinquishes her dower 
 in the property, though she is not named in the body of the deed as a grantor. 
 Johnson v. Montgomery, N. S. ix. 715. 
 
 7. The legal effect of wife's joining in deed of conveyance of land of husband 
 is to release her dower. Maloney v. Horan, N. S. viii. 573. 
 
 8. Mortgage by grantee at the same time of conveyance and as part of the 
 transaction will bar dower. King v. Stetson, N, S. vi. 185. 
 
 9. Demandant in dower competent to prove her husband's death. Flynn v. 
 Coffee, N. S. vi. 318. 
 
 10. Widow of tenant in common, may maintain dower against co-tenant. 
 Blossom V. Blossom, N. S. v. 186. 
 
 11. Dower once extinguished cannot be revived. Frey y. Boylan,'S. S. xi. 
 774. 
 
 I. In General. 
 
 12. How affected by bankruptcy. Worcester y. Clark, 0. S. ii. 185. 
 
 13. A testator, by his will, gave to his wife certain articles of personal pro- 
 perty, and one-third of the net income of all his real estate, after payment of 
 all taxes, assessments, and interest due thereon, during her natural life. Upon 
 her death the payments were to cease, and the said one-third of the net income 
 was to go to the heirs. The provisions were not stated to be in lieu of the dower. 
 Udd, that the widow was not put to her election. Tobias y. Ketchum, N. S. i; 
 634. 
 
 14. One bought land subject to the payment of the dower of a widow charged 
 upon it in the hands of the grantor, but the grantee did not sign nor seal the 
 deed, in the habendum of which the charge of the dower was expressed ; he devised 
 the land to his daughter by his will, and after his death, and when the dower had 
 become payable by the death of the widow, an action of debt was brought against 
 his executors for the dower by those entitled thereto. Held, that the words in 
 the habendum of the deed to the testator did not, in themselves, import a cove- 
 nant or promise by the acceptance of it, to be personally answerable to discharge 
 the dower. Shoenberger' s Executors y. Hay et al., N. S. i. 564. 
 
 15. It is an inflexible rule that before the widow can be entitled to dower, the 
 husband must have been seised, either in fact or law, of an estate of inheritance 
 in the land during coverture. Durundo y. Durando, 0. S. ix. 630. 
 
 16. Hence, a simple revision in fee, or a vested remainder expectant on an es- 
 tate for life, held or enjoyed by the husband, cannot create an estate of which the 
 widow is dowable. Id. 
 
 17. The meaning of the word " purchase," and the senses in which it is used 
 in the law of realty. Id. 
 
 18. Where A. made to B. a deed of gift embracing both personalty and realty, 
 in which deed was a special power in the nature of an appointment, which B. 
 executed by his last will, according to the terms of the power : Held, that the 
 wife was not entitled to dower in the realty so conveyed by deed of gift. Thomp- 
 son V. Vance, 0. S, vii. 222. 
 
 19. In proceedings for partition where, after a sale of the premises, the widow, 
 
DOWER— DRUNKENNESS. 373 
 
 who was entitled to dower therein, had agreed in writing under her hand and 
 seal, according to the statutes of tiiis state, to accept in lieu of her said dower 
 such sum in gross as the chancellor should deem reasonable, and then having 
 died before distribution, it was held, that the right vested in the widow to receive 
 a sum in gross ; interest could not be divested by her death, but should go to her 
 children. Held, further, that the value of the widow's interest should be ascer- 
 tained on the principles of life annuities. Mulford v. Hiers, N. S. i. 696. 
 II. Elopement and Desertion bt Wipe. 
 
 20. Whether barred by elopement of wife. See Husband and Wife. 
 in. Eight op Tenant to dispkove Seisin in Husband. 
 
 21. A tenant in an action of dower is not estopped from showing that the 
 seisin of the husband was not such as to give his wife a right of dower, where he 
 or his grantor has accepted a deed of the premises from the husband and claims 
 under it, although he may be estopped from denying the right of the husband to 
 give the deed. Foster v. Dw'mel, N. S. i. 604. 
 
 22. Estoppels are mutual. The wife is not estopped if the husband, in a deed, 
 mis-states his title — as one not giving dower. Id. 
 
 23. Dower is no part of the estate of the husband, but an independent and in- 
 choate right, which may become an interest in the estate after his death, if his 
 seisin was such as to give it. Bat the law will not create this estate by the opera- 
 tion of an estoppel where it otherwise would not exist, where the tenant has 
 simply accepted a deed from the husband, which does not allude to the matter of 
 dower, or to the existence of the wife. Id. 
 
 24. Where it appears in the deed from the husband that his title is only that 
 of mortgagee before foreclosure, no estoppel can arise. Id. 
 
 IV. Wife op Moktoagee when Dowablb. 
 
 25. The wife of a mortgagee cannot claim dower in an estate until the same 
 is foreclosed by the husband. Id. 
 
 26. Prior to Act of 1863 of Maine, a minor feme covert could not bar right to 
 dower by joining in execution of her husband's deed. Dda v. Stanwood, N. S. 
 xiii. 125. 
 
 27. That act could not defeat existing right of widow to dower. Id. 
 
 DRAFT. 
 
 1. Mis-spelling of name. One Spangler was properly enrolled among the 
 militia, from whom a draft was to be made. By mistake the name was written 
 Spangle on the ballot put into the box from which the quota was to be drawn. 
 This ballot being among those drawn, the court were of opinion that the draft 
 was not vitiated by the error in the name. In the matter of Spangler, N. S. ii. 
 598. 
 
 2. Where one person is held in custody by another acting in the right of and 
 under the authority of the general government, or claiming in good faith and 
 under color of such authority to be so acting, the state courts have no jurisdiction 
 to inquire into the validity of such authority, and to discharge the person so held 
 from custody. Id. 
 
 3. Where a draft was made under a law of Congress, but under the direction 
 of the governor of the state, and by draft commissioners appointed by him, it 
 was held, that the persons drafted and in custody of the draft commissioners, 
 were held under national authority, and that the state courts had no jurisdiction to 
 inquire into the validity of the draft on habeas corpus. Id. 
 
 4. Under the Act of Congress of March 3d 1863 for enrolling and calling out 
 the national forces, the duty of service by the person drafted, or of the procura- 
 tion of a substitute or payment of commutation in lieu thereof, is strictly a 
 private, personal liability ; and a municipal corporation lias no power under the 
 constitution and laws of Maine to levy a tax on the public to discharge such 
 liability. Opinion of the Judges, N. S. ii. 621. 
 
 DRUNKEMTESS. 
 
 1 . Effect of being drunk at the time of the commission of the act. See Reg. 
 V. Moore, 0. S. i. 37. 
 
 2. Effect of, as to criminal responsibility. McConohy r. State, 0. S. iv. 633. 
 
 3. When long continued producing Insanity. Id. 
 
 4. Divorce in Michigan for habitual drunkenness does not extend to where the 
 same cause existed at marriage. Porrett v. Porrett, N. S. vii. 189. 
 
374 DRUNKENNESS— EASEMENT. 
 
 5. Inquisition clianges the presumption in favor of sknity and casts onus on 
 party setting up a contract, but mere proof of habitual drunkenness is not suf- 
 ficient for that purpose. Noel v. Karper, N. S. vii. 123. 
 
 6. Is no legal excuse for the commission of crime. People v, Garhutt., N. S. 
 vii. 554. 
 
 DUE-BILLS. 
 
 Due-bills indorsed by initials valid, and holder may fill them up as payable to 
 himself. Weston v. Myers, N. S. iv. 704. 
 
 DUELLING. 
 
 1. Under the Constitution of Kentucky the giving, accepting or carrying of a 
 challenge to fight a duel, disqualifies the person so acting for any ofiice of honor 
 or profit under the state, besides subjecting him to such punishment as may be 
 prescribed by law. Cochran y. Jones, N. S.xiv. 222. 
 
 2. The disqualification and the offence against the laws are separate subjects, 
 and the Board for the Determination of Contested Elections has jurisdiction to 
 decide the former without reference to a conviction for the latter in a judicial tri- 
 bunal. Id. 
 
 3. A challenge may be accepted orally, although it be in writing. Id. 
 
 4. A constitutional provision that any person accepting or carrying a challenge 
 to fight a duel shall be deprived of the right to hold office is not self-executing, 
 except so far as it prevents those who cannot or will not take the requisite oath 
 from entering upon office. It has no other effect until after trial and conviction 
 in the course of a regular judicial proceeding. Commonwealth v. Jones, N. S. xiv. 
 374. 
 
 5. A citizen willing to take the oath of office, may enter upon and discharge 
 the duties thereof, without subjecting himself to an indictment for usiirpatioh of 
 office, until he has first been indicted, tried and convicted for the disqualifying 
 offence ; but if he takes the oath falsely and corruptly, he may be indicted and 
 prosecuted for the crime therel)y committed. Id, 
 
 6. The statutes regulating the proceedings and Jirescribing the duties of the 
 contesting board in elections for Clerk of the Court of Appeals, do not empower 
 said board to enter into an original inquiry as to whether the paMy elected has, 
 by a violation of said constitutional provisions, subjected himself to be deprived 
 of the right to hold office, nor upon their own conclusions as to his guilt, to ad- 
 judge him not entitled to the office and thereupon to declare it vacant. Id. 
 
 7. Such an inquiry being judicial in its nature, and for the infliction of a 
 punishment, the legislature could not, if it had attempted so to do, have con- 
 ferred such a power upon a board or tribunal composed of executive officers. Id. 
 
 DURESS. 
 
 In an action to recover money paid under duress, plaintiff must state facts. 
 Commercial Bank v. Rochester, N. S. iii. 639. 
 
 bUTIES. 
 
 1. Where certain liquors were imported into the United States in casks which 
 upon being gauged were found to be reduced in quantity by leakage, it was held 
 that no duties could be imposed except upon the quantity which actually atrived 
 in the country, to be ascertained by the ganger's return. Sturges v. United 
 Statesi,0. S. iv. 33^. 
 
 2. Mode of recovering excess of duties or estimated duties under Acts of 
 March 3d 1839, February 26th 1845, and August 8th 1846, considered and com- 
 mented on. Id. 
 
 3. Duties at office — ^remarks and advice relative to. O. S. iv. 193. 
 DWELLING. See Covbnant ; Eminent Domain. 
 
 What is not a conversion into a shop. Wilkinson v. Rogers, N. S. iii. 692. 
 EASEMENT. 
 
 1. No inference or conclusion will be drawn in this state (Illinois) agaitisl the 
 owner of land lying nnin'closed, which is'trkvelled over, to establish an easement 
 in favor of the public. Warren v. Jacksonville, 0. S. iii. 636. 
 
 2. When houses are built together, requiring the mutual support of eaeli other, 
 the purchaser of one has the right to the mutual support of the others. Richards 
 V. Rose, 0. S. ii. 178. 
 
 3. A license or liberty- attached to real estatemust generally be nsade by grant, 
 
EASEMENT. 375 
 
 and when made by parol is revocable, unless the enjoyment of it is preceded 
 necessarily by the expenditure of the money, and the grantee has made 
 improvements and invested capital in consequence of it. In that event, he oc- 
 cupies the position of a purchaser for value. The Mayor, ^c, v. Franklin, O. 
 S. ii. 318. 
 
 4. A right of way of necessity can only arise by grant, express or implied, 
 and therefore not in the case of an escheat. Proctor v. Hodgson, O. S. iii. 700. 
 
 5. Reciprocal servitudes or easements ; leading article upon. N. S. ii. 449. 
 
 6. Loss of servitudes or easements by abandonment ; leading article upon. 
 N. S. ii. 513. 
 
 7. Where tenants in common lay out a lot as a street and covenant not to 
 build within eight feet of it, each acquires a negative easement in the lands of 
 all. Greene v. Creighton, N. S. ii. 382. 
 
 8. When use of drain will not pass on conveyance of two adjoining estates on 
 same day. Randall v. McLaughlin, N. S. v. 508. 
 
 9. Nothing passes as incident to the grant of an easement but that which is 
 necessary for its reasonable enjoyment. Bean v. Coleman, N. S. iii. 381. 
 
 10. Where the surface of land and the minerals under it belong to different own- 
 ers, the owner of the surface is primS, facie entitled to support from the adjacent 
 strata ; and the owner of the minerals, in working them, is bound to leave suffi- 
 cient support for the surface of its natural strata. (Smart v. Morton, O. S. iv. 
 124. 
 
 1 1 . Where the defendant contracted with certain persons to build a warehouse 
 on his land, and in excavating for the foundation they disturbed and threw down 
 the plaintiff 's yard-wall, and injured the walls of the plaintiff's house, which 
 adjoined the defendant's premises, the house of the plaintiff not being an ancient 
 house : Held, that the plaintiff had no right to the support of defendant's soil, 
 and that therefore the defendant was not liable for the damage so done. Nichotls 
 V. Gayford, 0. S. ii. 639. 
 
 12. The use of a way over another's land whenever the party sees fit, without 
 asking leave, and without objection, is an adverse user, which, if continued for 
 more than twenty-one years, will give a title by presumption of grant. The 
 burden of proof that the use of the easement was under some license, indul- 
 gence, or special contract, inconsistent with a claim of right, lies on the owner 
 of the laud. Garrett -v.' Jackson, 0. S. i. 438. 
 
 13. Merely maintaining a dam for twenty years, does not give a prescriptive 
 right to flow land as high as it can be flowed by that dam ; to acquire such right 
 it must have been done with sufficient frequency during the twenty years to have 
 given landowner notice that the right was being claimed. Gilford v. Winnipiseo- 
 gee Lake, N. S. xiii. 56. 
 
 14. Where a servitude is continuous and apparent, a purchaser at a private or 
 judicial sale takes subject to it. Cannon v. Boyd, N. S. xiii. 456. 
 
 15. It makes no difference whether reference is made to the servitude in the 
 deed of the dominant tenement or not. Id. 
 
 16. Nor does the expectation of the agent who purchases the dominant tene- 
 ment, affect the principal's title. Id. 
 
 17. Right over grantor's other land may pass appurtenant to a grant, though 
 access otherwise is not impossible. Pettingill v. Porter, N. S. iv. 118. 
 
 18. Grant of a " way " carries an easement only. Aqueduct Co. v. Chandler, 
 N. S. V. 186. 
 
 19. A right of way cannot arise from mere necessity. Tracy y. Atherton et ah, 
 IS. S. i. 739 ; and see same ease, N. S. iv. 56. 
 
 20. Cannot be maintained against a municipal corporation by proof of use of , 
 the property as a public street. Such use is only evidence of claim of a right 
 of way. Cowenhoven v. Brooklyn, N. S. ii. 506. 
 
 21. Ejectment will not lie for an easement of flowing the land with water. 
 WilMow V. Lane, N. S. ii. 247. 
 
 22. Right to lateral support from an ancient party-wall. Phillips v. Bordman, 
 N. S. ii. 64. 
 
 23. The owners of a dam or water-course obstructing the drainage of another's 
 land, are liable for the damage. Bassett v. Salisbury Manuf. Co., N. S. iii. 223. 
 
 24. Acquisition by user by several persons in succession, who claim under the 
 same title, may be conveyed under the words, " with the privileges thereunto be- 
 longing." Leonard y. Leonard, N. S. iii. 568. 
 
376 EASEMENT. 
 
 25. An agreement to explore for mineral oil, and if found, part of the land 
 to be sold, held a personal license, on which ejectment will not lie by the as- 
 signee of the covenantee. Dark v. Johnson, N. S. ti. 543. 
 
 26. Where a grantor conveys certain lots bounding on a street or alley, neither 
 he nor his assigns can afterwards close the said street or alley. Cox v. James, 
 N. S. X. 601. 
 
 27. The right of one man's land to support from the adjoining land is not an 
 easement. Pollock, C. B., in Solomon v. Vinterers' Co., 0. S. vii. 625. 
 
 28. A canal company only has an easement in the towing-path, and not the 
 title in fee. See Badger v. Navigation Co., 0. S. yii. 512. 
 
 29. User of way from one part of an estate to another, does not pass by 
 implication on a severance of the estate. Worthington t. Gimson, N. S. iv. 
 311. 
 
 30. Easement of an alley- way between two lots, when the use was apparent 
 and continuous, does not merge by unity of possession of the lots. McCarty y. 
 Kiichenman, N. S. iv. 3U. 
 
 31. As affected by conveyance of portions of an estate at different times, dis- 
 cussed. N. S. iv. 134. 
 
 32. To the right to have an unobstructed use of the wind for a windmill. See 
 Webb V. Bird, N. S. i. 637. 
 
 33. The right to use land for a mill-yard may exist as an easement, for the 
 disturbance of which a bill in equity may be sustained. Gurney v. Ford, N. S. 
 i. 317. 
 
 34. All public easements are under the power of the legislature, exercising 
 the sovereign power of the state. Commonwealth v. Temple, 0. S. viii. 678. 
 
 35. In an action by a reversioner, one count alleged that a messuage and land 
 in fact received lateral support from, and were supported by the land adjoining, 
 yet the defendant wrongfully and negligently dug and made excavations in the 
 said land so adjoining, and without sufficiently shoring, propping, or otherwise 
 protecting the said messuage and land from the effects thereof, and thereby de- 
 
 ' prived the messuage and land of their said support, whereby the land and mes- 
 suage sank. Another count stated that plaintiff was, by reason of her said 
 interest in the messuage and land, entitled to have the messuage supported later- 
 ally by certain land adjoining, yet the defendant wrongfully and negligently dug 
 and made divers excavations in the land adjoining, and without sufficently shor- 
 ing, propping, or otherwise protecting the said messuage and land, thereby de- 
 prived the said messuage of the support to which the plaintiff was so entitled 
 as aforesaid, whereby the messuage and land sank. On demurrer, both counts 
 were held to disclose a right of action, as well in respect of the injury to the 
 house as to the land. Bibby v. Carter, 0. S. vii. 703. 
 
 36. A landowner, who in the reasonable use of his own land diverts or ob- 
 structs the flow of water not gathered into a stream, but either circulating through 
 the pores of the earth, or spreading over the surface in the season of melting 
 snows or heavy rains, is not liable for an injury to his neighbor caused by such 
 diversion or obstruction. Sweet v. Cutts, N. S. xi. 11. 
 
 37. Where the plaintiff and defendant were adjoining owners of land by the 
 side of a highway, in the ditch of which water was accustomed to accumulate, 
 and for many years it found its way off through a depression in defendant's 
 land : Held, that plaintiff would acquire no right by prescription to have the 
 water run off over the defendant's land. Id. 
 
 38. The owner of two adjoining lots, which may be designated as the east and 
 west lots, leased the former for the renewable term of ninety-nine years, at 
 a certain yearly rent, and in the lease covenanted that the lessee should have the 
 right and privilege to make openings and place lights in the wall which he con- 
 templated erecting on the western line of the property leased. The wall was 
 erected and openings were made and lights placed therein, which overlooked the 
 west lot. Subsequently the lessor conveyed the reversion in the east lot and 
 premises to the lessee thereof, in fee, and by this deed were granted with the lot 
 all buildings and improvements thereon erected, " and all and every the rights, 
 alleys, ways, waters, privileges, appurtenances, and advantages to the same be- 
 longing, or in anywise appertaining." Afterward the owner of the west lot con- 
 veyed the same, in fee, to a third party, the deed containing a covenant of special 
 warranty. On an action brought by the vendee of the west lot against the vendor 
 for an alleged breach of the covenant of special warranty, it was held — 
 
EASEMENT. 377 
 
 (1.) That the conveyance to the vendee of the east lot passed the full right 
 to the free use and enjoyment of the lights in the wall as they then existed, as 
 an incident and appurtenance to the land conveyed ; and that such right as ap- 
 purtenant to the premises will pass therewith to all successive owners of the 
 property. 
 
 (2.) That the vendee of the west lot took it with the servitude annexed for 
 the benefit of the east lot, and the existence of this servitude, and the enjoyment 
 thereof by the owner of the east lot, constituted no breach of the covenant of 
 special warranty. Janes v. Jenkins, N. S. xi. 24. 
 
 39. Whenever an owner has created and annexed peculiar qualities and in- 
 cidents to different parts of his estate (and it matters not whether it be done by 
 himself or his tenant by his authority), so that one portion of his land becomes 
 visibly dependent upon another for the supply or escape of water, or the supply 
 of light and air, or for means of access, or for beneficial use and occupation, 
 and he grants the part to which such incidents are annexed, those incidents thus 
 plainly attached to the part granted, and to which another part be made servient, 
 will pass to the grantee as accessorial to the beneficial use and enjoyment of the 
 land. Id. 
 
 40. The owner of land can have no easement in or over his adjoining lands, 
 and where he sells one parcel, the right to enjoy privileges and conveniences, 
 which he, when owner of both, enjoyed in the other, does not pass to the pur- 
 chaser. Stanford v. Lyon et ux., N. S. xi. 127. 
 
 41. An agreement by tenant for years to abandon an easement cannot bind the 
 reversioner. Glenn v. Davis, N. S. xi. 531. 
 
 42. A conveyance of a strip of land in express terms, with restrictions that it 
 is to be used only as a road, is a grant of the fee and not of a mere easement. 
 Coburn v. Coxeter, N. S. xi. 722. 
 
 43. There may be a dedication of land to public use by parol ; but the intent 
 to dedicate should in such case be clearly shown. Morrison v. Marquardt et aL, 
 N. S. vii. 336. 
 
 44. The English doctrine that there may be a grant of light and air by impli- 
 cation is not applicable to the situation and condition of this country. Id. 
 
 4.5. The English rule is this : If a man sells a house with windows and doors 
 opening on to his vacant ground, neither he nor his grantee can afterwards build 
 upon such vacant ground so as to obstruct the flow of light and air, without ex- 
 press reservation of the right to do so : Held, that if such a rule should be recog- 
 nised in this country, it should be applied only in cases where the circumstances 
 make it clear that such must have been the intention of the parlies. Id. 
 
 46. In this case the circumstances negatived such intention. Id. 
 
 47. It is settled law that there is no implied reservation of a right to light and 
 air. So that if one sells vacant land and retains the house adjoining, the pur- 
 chaser of the vacant land may build thereon, though he darken thereby the win- 
 dows of the house of his vendor. Id. 
 
 48. The owner of the servient estate cannot by the unlawful destruction of an 
 easement extinguish the right of the owner of the dominant estate thereto ; and 
 the latter owner may, in proper cases, have relief in equity, and not be driven to 
 an action for damages. Id. 
 
 49. Cannot exist in parol. Huffy. McCauley, N. S. vii. 63. 
 
 50. Contract to allow A. to take coal from B.'s laniis a profit a prendre, 
 and must be created by grant or prescription. Id. 
 
 51. Grant of surface right " only for the purpose of a coal -breaker, " &c., is 
 an easement only. Big Mt. Co.'s Appeal, N. S. vii. 313. 
 
 52. If owner of adjoining closes, over one of which a way exists for benefit 
 of the other, conveys them simultaneously to different persons, the right of the 
 way does not pass as an easement unless it be of strict necessity. Warren v. 
 Blake, N. S. vii. 442. 
 
 53. Not created or continued by severance of estate unless from necessity. 
 Fetters v. Humphreys, N. S. vii. 698. 
 
 54. Party having easement claimed over his land may interrupt it, and if sued 
 and damages recovered against him, may sue his grantor on covenant against 
 encumbrances. Smith v. Sprague, N. S. vii. 573. 
 
 55. A minister of the Protestant Episcopal Church has either the possession 
 of the church edifice or a right in the nature of an easement to enter therein, on 
 all occasions set apart in the parish for divine services, and a substantial inter- 
 
378 EASEMENT. 
 
 ference with snch right will lay the ground for an action at law. Lynd v. Men- 
 zies, N. S. viii. 94. 
 
 56. The English ecclesiastical law forms the basis of the law regulating the 
 affairs of this denomination of Christians. Id. 
 
 57. In order to vest the pastor with the ordinary rights in the temporalities 
 pertaining to his office, it is not necessary for the congregation to be incorpo- 
 rated, nor that the title to the church should be lodged in such congregation. Id. 
 
 58. An easement will not be extinguished by mere non-user for twenty years. 
 Veghte v. The Baritan Water Power Co., N. S. viii. 191, 
 
 59. Twenty years' adverse enjoyment of a right to flow back water upon^'an- 
 other's land, will constitute an easement, which no interruption, except for the 
 same period, or a plain intention to abandon, will destroy. Carlisle v. Cooper, 
 U. S. viii. 249. 
 
 60. Constant use of a right of way, which way is fenced on both sides, is no- 
 tice to a purchaser of land of the easement. McCann v. Day, N. S. xii. 190. 
 
 61. Equity will enjoin a purchaser from obstructing a right of way, where 
 there is no adequate remedy at law. Id. 
 
 62. Twenty years' enjoyment of an easement gives no title to its use. Slexens 
 V. Dennett, N. S. xii. 321. 
 
 63. In an action for the interruption of the enjoyment of an easement as ap- 
 purtenant to an estate, evidence of its use by the public for sixty years is incom- 
 petent. Id. 
 
 64. No one can have an easement in his own land. Daslon v. Leddell, N. S. 
 xii. 321. 
 
 65. If the owner of a tract of which one part has the benefit of a drain, in the 
 nature of an easement, through the other part, sells or devises either, an ease- 
 ment is created by implication. Id. 
 
 66. Where a testator specifies the height to which the lands of one devisee 
 may be sr^bjected to the flowage of another's dam^ it cannot be maintained above 
 that, though it was higher at the time of testator's death. Id. 
 
 67. The owner of land on which there is a pond or reservoir of surface water, 
 cannot lawfully discharge it through an artificial channel directly upon the land 
 of another, greatly to his injury. Pettigrew v. Village ofEvansville et al., N. S. 
 ix. 126. 
 
 68. The use of a way for more than twenty years does not, as a matter of 
 law, establish a right by prescription. Burnham v. McQuestion, N. S. ix. 514. 
 
 69. A way over adjoining land used to approach a grist mill will not pass 
 as appurtenant on the sale of the mill, if it is otherwise accessible, unless ex- 
 pressly mentioned. Plumpton v. Converse, N. S. ix. 578. 
 
 70. Title to ditch may be established by adverse user. White v. Chapin, N. S. 
 vi. 569. 
 
 7 1 . What use will be sufficient. Id. 
 
 72. The owner of the fee may take ice from a canal. Edgerton v. Huff, N. S. 
 vi. 720. 
 
 73. Meaning of navigable river at common law. Magnolia v. Marshall, N. S, 
 vi. 510. 
 
 74. Where title to two adjoining closes unites, all subordinate rights and ease- 
 ments are extingushed. Warren v. Blake, N. S. vii. 442, 
 
 75. Plaintiff having recovered for an obstruction to his way, afterwards agreed 
 that defendant might keep up the wall at $30 per annum ; lid'd, that this termin- 
 ated at the end of any year, Gilmore v. Wilson, N, S. vii, 128. 
 
 76. Covenant creating easement runs with the land. Norjleet v. Cromwell, N. 
 S. ix. 446. 
 
 77. Covenants are the proper mode of creating servitude. Id. 
 
 78. Exception of rights in a deed. Emerson v. Mooney, N. S. ix. 713. 
 
 79. An alley fenced in and owned by the contiguous lot-owners is extinguished, 
 Robinson v, Myers, N. S. xi, 196, 
 
 80. An agreement by a lessee for years to abandon an easement does not bind 
 the reversioner, Glenn v, Davis, N. S. xi. 531. 
 
 81. A voluntary release of an easement by an administrator does not bind the 
 estate nor the heirs, Mowe v. Stevens, N. S. xii. 660, 
 
 82. The period during which the servient and dominant tenement are in the 
 possession of the same owner, is excluded from the twenty years required to es- 
 tablish an easement by prescription. Mansvr v, Blake,,1^. S, xiv, 195. 
 
EASEMENT— EJECTMENT. 379 
 
 83. The purchaser of a water-power without any portion of the bed Sf the 
 stream, only obtains an incorporeal hereditament. Sterling Hudrauhc Co. v. 
 Williams, N. S. xiv. 583. 
 
 84. Covenants will run with such hereditament as well as with a corporeal 
 one. Id. 
 
 85. A strip of sandy beach, mainly valuable for its sand as an article of mer- 
 chandise, was owned in fee by the plaintiffs, and the defendant claimed a pre- 
 scriptive right to take sand ad libitum therefrom. Held, that evidence that the 
 defendant, as one of the publi", and not as incident to an estate in other lands, 
 had talien sand ad libitum from the beach, did not tend to prove an individual 
 prescriptive riglit. Merwin v. Wheeler, N. S. xiv. 601, 
 
 86. Such an unlimited right to take the sand would be equivalent to full owner- 
 ship and inconsistent with the plaintiffs' title in fee. Id, 
 
 87. A prescription, as well as a custom, to be valid must not be unreasonable. 
 Id. 
 
 88. The right would be a profit & prendre and not an easement, and such rights 
 must as a general and perhaps universal rule be prescribed for as incident to other 
 lands, for the benefit of or in connection with which the rights are to be exercised. 
 Id. 
 
 89. The word "beach" has no such inflexible meaning that it must denote 
 land between high and low-water mark. Id. 
 
 90. Where title to two adjoining closes unites, all subordinate rights and ease- 
 ments are distinguished. Warren v. Blake, N. S. vii. 442. 
 
 EDITOR. 
 
 1. The editor of an encyclopedia has no right to alter the manuscript of a con- 
 tributor whose article appears in his own name, in order to harmonize it with 
 the general doctrines of the work. Malgaigne v. De St. Priest, 0. S. i. 42. 
 
 2. The editor of a periodical who has accepted and begun the publication of a 
 literary work cannot suspend that publication without the consent of the author. 
 Saint Julien v. Doaniol, O. S. i. 46. 
 
 3. The editor of a collective work has the right, even in the absence of any 
 special agreement, to make such changes and suppressions in the articles of con- 
 tributors as he may judge proper, so long as those changes and suppressions do 
 not affect the plan and idea of the original. Malgaigne v. De Saint Priest, 0. 
 S. iii. 571. 
 
 4. The task of correcting for the press the proofs of articles in such a work 
 belongs to the editor. Id. 
 
 EJECTMENT. 
 
 1. Plaintiff in ejectment, who has recovered rents as mesne profits for the 
 year in which recovery is had, is not entitled to the growing crop. Gardner v. 
 Kersy, N. S. ix. 639. , 
 
 2. A plaintiff in possession cannot maintain ejectment. Corley el al. v. Pentz, 
 N. S. xiv. 523. 
 
 3. The return of a sheriff to the writ of ejectment is only primS. facie evidence 
 of defendant's possession. Id. 
 
 4. In equitable ejectments the judge acts as a chancellor, with the assistance 
 of the jury, to determine the credibility of witnesses and conflicting evidence, 
 Ballentine v. White, IS. S. xiv. 755. 
 
 5. The character of the whole case must satisfy the chancellor that the equity 
 is clearly established. Id. 
 
 6. Whether the equity rule that the denial must prevail, unless there is other 
 evidence than the plaintiff' 's, is to be followed, since parties are now witnesses, 
 not decided. Id. 
 
 7. Cannot be maintained against a municipal corporation by proof of Use of the 
 property as a public street ; such use is only evidence of claim of a right of way. 
 Cowenhoven v. Brooklyn, N. S. ii. 506. 
 
 8. Will not lie for' an easement of flowing the land with water. Wilklow v. 
 Lane, N. S. ii. 247. 
 
 9. Lease after lessor has conveyed all his interest may be foundation of title, 
 if followed by actual adverse possession. Id. 
 
 10. Parties in possession under the defendant in an action of ejectment, may 
 be dispossessed by a writ of restitution. Mayne v. Jones, N. S. viii. 120. 
 
 11. Possession accompanied by a claim of the fee will sustain an eject- 
 
380 EJECTMENT. 
 
 ment against one showing only naked possession. Dale v. Faivre, N. S. viii. 
 379. 
 
 12. A judgment in ejectment for plaintiff does not preclude the defendant 
 from asserting a title subsequently acquired. Mann v. Rogers, N. S. viii. 505. 
 
 13. The right to set off the value of improvements, against a claim for dam- 
 ages in ejectment, depends upon their permanency. Carpentier v. Small, N. S. 
 viii. 505. 
 
 14. To maintain, must be disseisin of plaintiff, and wrongful possession by 
 defendant. Chamberlain v. Donahue, N. S. viii. 632. 
 
 15. Vendor cannot eject his own vendee who has entered by license, or under 
 express agreement giving him possession, until the license is rescinded or the 
 agreement broken. Pierce v. Tutile, N. S. viii. 633. 
 
 16. Prima facie all who came into possession pending the action of ejectment 
 must go out, if the plaintiff recover. Wetherbee v. Dunn, N. S. viii. 696. 
 
 17. Will not lie, when plaintiff has a mere equitable title. Peck v. Newton, 
 N. S. vi. 186. 
 
 18. When cannot be maintained by a trustee of a school district. Id. 
 
 19. When single final judgment, in ejectment, conclusive. Sturdy v. Jacka- 
 way, N. S. vi. 439. 
 
 20. Extent of the doctrine. Id. 
 
 21. Landlord and tenant joined as defendants must set up the misjoinder in 
 their answer, or it will be too late. Ames v. Harper, N. S. vi. 773. 
 
 22. In ejectment, plaintiff 's title was derived from a sale for taxes by the 
 treasurer of Cambria county in 1822. The lands in suit were on or near the 
 boundary line, and from the generality of the description of the boundary lines 
 in the act incorporating the county, it could not be ascertained whether the lands 
 were in the county or not. By a later Act of 18-49 commissioners were appointed to 
 " correctly run and distinctly mark the boundary line, &c., agreeably to the acts de- 
 fining" the same. Held, that in the absence of evidence proving the existence and 
 recognition of a different line by the oflScers of the county at the time of the sale 
 in 1822, the line established by the commissioners under the Act of 1849 must 
 be treated as the original and true line. Smith v. Brotherline, N. S. x. 50. 
 
 23. A defendant claiming title under the Act of Congress of March 3d 1807, 
 must plead it in bar as an equitable defence, in an action of ejectment. Lebeau 
 
 t^v. Armitage, N. S. x. 126. 
 
 24. One trial may be conclusive by state law, and this will bind United States 
 courts. Miles y. Caldwell, N. S. iv. 510, 
 
 25. Duty of officer, serving writ of possession, Clark v. Parkinson, N. S. ii. 
 508. 
 
 26. Trespass will not lie against a stranger who removes personal property 
 from land recovered in ejectment, after judgment, but before entry or execution 
 of a hab. fac. under a purchase from the defendant. King Sf Shoenberger v. Ba- 
 ker, 0. S. iv. 440. 
 
 27. Though one verdict and judgment in ejectment upon an equitable title is 
 conclusive between the parties, and a bar to any subsequent ejectment for the 
 same land, yet in order to have this effect, the judgment upon the verdict must 
 have been regularly entered on the record ; it is not enough that the jury fee 
 was paid after verdict, and an entry thereof indexed in the lien docket. Fergu- 
 son S Belts V. Staver, N. S. i. 691. 
 
 28. When an estate is devised to trustees to pay over or convey to the cesiui que 
 trust the one-half part of what they should receive of the estate, and the yearly 
 proceeds of the other half during her natural life, the trustees are the repository 
 of the title for her benefit, and she cannot maintain ejectment for it. Wallace v, 
 Wallace, N. S. i. 42. 
 
 29. A conditional verdict in ejectment may be modified after it is rendered, as 
 far as the amount to be paid is considered. Napier v. Darlington, N, S. xii. 
 407. 
 
 30. Ejectment, and not a bill in equity, is the appropriate remedy for the trial 
 of a title, where the complainant is out of possession, and the title is not clear 
 and beyond suspicion. Hoffman v. Beard, N. S. xi. 593. 
 
 31. The commencement of an action of ejectment determines the relation of a 
 tenant at will. Chamberlain v. Donahue, N. S. xii. 732. 
 
 32. A tenant in common wrongfully excluded by his co-tenant, may ordi- 
 narily maintain ejectment. Austin v. Railroad Co., N. S. xii. 415. 
 
 33. The plaintiff in ejectment is only required to show that the title and right 
 
EJECTMENT— ELECTIONS. 381 
 
 of possession was in him at the commencement of the action. McLane v. Bovev 
 N. S. xiii. 648. 
 
 34. Under general denial, defendant cannot show that he has acquired title 
 since the commencement of action. Id. 
 
 35. A judgment for plaintiff does not bar a subsequent action by defendant to 
 assert his title so acquired. Id. 
 
 36. The person named in a certificate of entry of land at a United States land 
 office has " a yalid subsisting interest," and may maintain ejectment therefor. 
 Id. 
 
 37. It is only a determinable fee at most ; the certificate may be cancelled, and 
 the title thus revests in the United States. Id. 
 
 38. What is necessary on the part of a vendor before ejectment. Hotaling v. 
 EotaUng, N. S. vi. 511. 
 
 39. Whether demand be necessary to sustain ejectment. Id. 
 
 40. In an action of ejectment, where plaintiff's title is that of a voluiumy 
 purchaser, under a void execution, it is not competent for plaintiff to prove that 
 defendant promised the creditor to pay the judgment. Walton, Ex'r, v. McKes- 
 son, N. S. ix. 385. 
 
 41. One tenant in common cannot bring ejectment against his co-tenant, un- 
 less there has been an ouster. Hammond v. Morrison's Lessee, N. S. x. 478. 
 
 42. Where fraud m procuring a deed, does not make it void. Lombard v. Cow- 
 ham, N. S. xiii. 710. 
 
 43. A bill to quiet title will not lie where the complainant is not in possession. 
 Barron v. Rabbins, N. S. xi. 532. 
 
 44. An exception in a grant of lands in these words, " excepting and reserv- 
 ing out of the said piece of land so much as is necessary for the use of a grist 
 mill on the east side of the road, at the west end of the said mill-dam," is a 
 good exception. Mnthews v. Mathews, 0. S. iii. 117. 
 
 45. Where partners make a settlement under the sanction of an award of 
 referees, equity will enjoin, by perpetual injunction, against ejectment for land 
 not brought before the referees. Farrisy. Ktrkpatrick' s Heirs and Administrator, 
 O. S. vii. 672. 
 
 46. The grant of equity powers to the courts of Pennsylvania does not inter- 
 fere with their jurisdiction to enforce performance of agreement in an ejectment 
 at common la,w. Corson v. Mulvany, N. S. iv. 478. 
 
 ELECTION. 
 
 1. A court of equity has power to compel a legatee to make his election. 
 Huston V. Cone, N. S. xiii. 655. 
 
 2. A beneficiary under a will, whose property is given by the will to another, 
 cannot take and also claim his own property ; he must elect. Id. 
 
 3. Effect of electing to take or reject property given by will. See Gable's 
 Ex'rs V. Daub, N. S. i. 692. 
 
 4. Election of remedies — what will amount to — and eflfect on rights of plain- 
 tiff. See Bank v. Beale, N. S. ii. 564. 
 
 ELECTIONS. 
 
 1. Indictment, under the Enforcement Act of May 31st 1870, for preventing 
 persons of African descent from voting, and for refusing to register such voters. 
 United States v. Judges of Petersburg Election, N. S. xiv. 105. 
 
 2. Election districts within the meaning of the Pennsylvania statute. Chase 
 T. Miller, N. S. ii. 146. 
 
 3. Where the person receiving the highest number of votes for an ofiice is in ■ 
 eligible, the person receiving the next highest number is not thereby elected, but 
 there is a failure to fill the office, and a new election must be had, Cochran v. 
 Jones, N. S. xiv. 222. 
 
 4. An officer not commissioned is authorized to enter upon the duties upon the 
 certificate of election delivered by the return oflScer. Commonwealth v. Common 
 Council, N. S. vii. 362. 
 
 5. On trial of title to office the question is who received the most legal votes. 
 People V. Pease, N. S. iv. 1 85. 
 
 6. Inspectors of election are administrative, not judicial officers, and their de- 
 cision on the right to vote may be examined' in subsequent proceedings. Id. 
 
 7. They have no right to reject a vote except in cases expressly authorized by 
 statute. Id. 
 
382 ELECTIONS. 
 
 8. Evidence in contested elections. People v. Pease, N. S, ir. 185. 
 
 9. Indictment against judges for refusing to receive vote must allege all pre- 
 requisites to tlie right to vote. People v. Wattles, N. S, v. 252. 
 
 10. Under a statute "-to regulafte the election of state and county officers," 
 after the polls of an election have been once opened " between the hours of six 
 and ten in the morning " in pursuance thereto, they cannot be " closed " for any 
 purpose until six o'clock in the afternoon, without rendering the election illegal 
 and void. State v. Bitt, N. S. vii. 88. 
 
 11. For what causes an election will be held void. Note to State v. Ritt, N. S. 
 vii. 91. 
 
 12. Where at an election for sheriflF a majority of the votes are cast for a dis- 
 qualified person, the next in vote is not to be returned as elected. Commonwealth 
 ex. rel. McLaughlin v. Cluley. N. S. viii. 63. 
 
 13. Election returns should not be rejected where there is some irregularity in 
 the appointment of the ofBcers of the election, unless injurious results accrued 
 therefrom. Keller v. Chapman, N. S. viii. 184. 
 
 14. It is error in a county court to count votes not in fact received, even 
 though they were improperly rejected. Webster v. Byrnes, N. S. viii. 185. 
 
 15. A registered voter whose vote has been wilfully, corruptly, and fraudu- 
 lently refused by the judges of an election is entitled to recover such exemplary 
 damages as the jury may consider proper. Elbin v. Wihon, N. S. x. 408. 
 
 16. The governor of a state is not '' an officer of election " within the mean- 
 ing of section 22 of the Act of Congress of May 31st 1870 (16 Stats, at Large 
 145), which makes it criminal for any " election officer" fraudulently to make 
 any false certificate of the result of any congressional election. United States 
 V. Clayton, N. S. x. 737. 
 
 17. The relations of a state to the general government, and of the governor 
 to both, referred to as showing the improbability that Congress would (if its 
 power be conceded) provide for the trial and imprisonment of this officer for 
 omitting or fraudulently performing election duties prescribed by state laws. Id. 
 
 18. On the trial of a contested election, a witness cannot state what persons 
 not parties to the record told him subsequent to the election. Gilliland el al. v. 
 Schuyler, N. S. xii. 54. 
 
 19. Mere irregularities of the election officers will not vitiate an election. Id. 
 
 20. An election is valid though but two judges are appointed. Id. 
 
 21. Sections 10, 18, and 64 of the Election Law of Kansas, are directory, and 
 a disregard of them will not vitiate an election. Id. 
 
 22. Election officers who wilfully neglect, or corruptly discharge their duties, 
 are liable to prosecution and punishment for misdemeanor. Id. 
 
 23. The constitu,tion as applied to the legislative department of the govern- 
 ment is a restriction and not a grant of power, and it is competent for. the legis- 
 lature to prescribe the qualification of electors and the time and place of elec- 
 tion. Morrison v. Springer, N. S. iii. 276. 
 
 24. The constitution of Iowa does not prescribe the place of exercising the 
 elective franchise. Id. 
 
 25. A court of chancery has no power to prevent the holding of an election 
 of officers. People ex. rel. Fitnamv. Galesburg, N. S. ix. 262. 
 
 26. A court of chancery has no power to determine tlie validity of an election 
 of the directors of a private corporation. Owen v. Whitakgr, N. S. ix. 318. 
 
 27. An election is not legal if the list of stockholders exhibited on the day of 
 election is not a true list. Johnson et al: v. Jones et al., N. S. xii. 467, 
 
 28. Where an election has been obtained by fraud or breach of trust equity 
 has jurisdiction. Id. 
 
 29. Voters and freeholders have no such specific interest as will sustain man- 
 damus, to compel county board to order election. Turner v. County Commis- 
 sioners, N. S. xii. 125. 
 
 30. Required by statute to be held, is not affected by want of notice. People 
 V. Harlwell, N. S. iii. 764. 
 
 31. No action lies against the selectmen of a town for refusing to put upon the 
 list of voters therein the name, and rejecting the vote, of one who was not a 
 legal voter, although the proof produced by liim to them was sufficient to estab- 
 lish, prima, facie, his right to vote ; and they may prove at the trial that, in fact, 
 he was not a legal voter. Lombard v. Oliver, N. S. i. 435. 
 
 32. The principles of public policy which make void all contracts tending to 
 
ELECTIONS— EMINENT DOMAIN. 883 
 
 the corrupting of elections held under authority of law, apply equally to what are 
 primary or nominating elections, although these are mere voluntary proceedings 
 of the voters of certain political parties. Strasburger v. Burk, N. S. xiii. 607. 
 
 33. A contract to procure a nominatioti for a public office by providing liquors, 
 &c., to voters, is void, and the courts will not aid either party in its enforcement. 
 Id. 
 
 34. A tribunal authorized by law to decide upon the sufficiency of sureties for 
 official duty, cannot postpone its duty because the right to the office is in dispute 
 elsewhere. Commonwealth ex rel. Battier v. Common Council of Philadelphia, N. 
 S. vii-. 362. 
 
 •EMBEZZLEMENT. 
 
 1 . A person employed at a monthly salary, is propeny described as a servant 
 in an indictment for embezzlement. Gravatt v. State, N. S. xiv. 644. 
 
 2. Embezzlement by the secretary of a society. See Eeg. v. Proud, N. S. i. 
 444. 
 
 3. The prosecutor gave some marked money to J. W. to expend at his (pros- 
 ecutor's) shop, for the purpose of detecting a servant of whom the master had 
 suspicions. The servant was convicted of embezzling a portion of the marked 
 money. Held, that the conviction Vvias right. Reg. v. Samuel Gill, 0. S. ii. 505. 
 
 4. Money received on account of master. The prisoner was a carman of W. 
 and the case found that it was his duty to pay over direct to the company's clerki 
 any money he received for coals. He, however, having delivered coals to a cus- 
 tomer, received the money and appropriated it to his own use, and was then in- 
 dicted for embezzling the moneys of W., his master. Held, by a majority of the 
 judges, that there was a privity between the prisoner and the company, so as 
 to make him their agent ; that he agreed to pay the money to them, and there- 
 fore he had not received it on account of W., and was wrongfully convicted of 
 embezzling W.'s money. Reg. v. Edward Beaumont, 0. S. ii. 505, 
 
 5. Receiving money of employer, and not entering it in the proper books. 
 See Reg. v. Lister, O. S. v. 703. 
 
 6. Embezzlement not larceny. See Reg. v. Goodenough, O. S. ii. 116. 
 
 7. A foreman employed to sell goods, sold some to a customer, who bought 
 them bonS: fide, as bought from the master, and who paid the foreman for them. 
 The foreman did not enter the sale in his books, or account for the price to his 
 master, as in duty bound, but concealed the whole transaction, and employed the 
 money for his own use. It was held, the foreman was not guilty of stealing the 
 goods, as the sale was binding as between the buyer and the master, but that his 
 offence was embezzling the price. Reg. v. Belts, O. S. vii. 511. 
 
 EMINENT DOMAIN. 
 
 1-. The state, in exercising its right of eminent domain, may direct not only 
 as to the quantity of land or property which may be taken for the public use, 
 but also as to the quantity or extent of interest in such property which may be 
 required or taken for such public use ; thus, it may take an estate for life or 
 years, as well as an estate in fee, and where it has been taken in fee or absolute 
 ownership, and paid for as such, it will not revert to the original owner upon the 
 ceasing of the public use. Heywardy. City of New York, O.'S. i. 181. 
 
 2. The land which is taken under the right of eminent domain, which exists 
 in the state, for the use of a railroad, becomes so far the property of the railroad 
 corporation that their right is exclusive in its use and possession during the 
 existence of the easement, and those from whom the land was taken iretain no 
 right to its use or occupation for pasturage or otherwise. Hurd v. Rutland Rail- 
 road, O. S. ii. 232. 
 
 3. The legislature, in exercising the right of eminent domain, may impair, 
 qualify or destroy private property for a public benefit. See Note to Killam v. 
 Kdlam, N. S. i. 25. 
 
 4. Private property can only be taken for public use when the necessity there- 
 of is first established by a jurv. Lumsden v. City, 0. S. vi. 157. 
 
 5. It is provided by sect. 5, ch. 81, of Revised Statutes of 1840, that in locating 
 railroads, "no corporation shall take any meeting-house, dwelling-house, or 
 public or private burying-ground, without the consent of the owners thereof." 
 Held, that the term dwelling-house, as here used, means only the house, and in- 
 cludes no part of the garden, orchard, or curtilage. Wells v. Somerset, ^c. 
 Railroad Co., N. S. ii. 658. 
 
384 EMINENT DOMAIN— ENGLISH JURISPRUDENCE. 
 
 6. The right of eminent domain confers upon the legislature authority to take 
 private property for public uses, when the public exigencies require it, subject 
 only to that provision of our constitution which exacts just compensation ; and 
 a dwelling-house is no more exempt than any other species of real estate, when 
 the legislature, in the exercise of that right, determines that the public exigencies 
 require it. Wells v. Somerset, ^■c., Railroad Co., N. S. ii. 658. 
 
 7. Appropriation of property by, should not interfere further than public ne- 
 cessity requires with owner's enjoyment thereof. Edgerton v. Huff, N. S. vi. 
 716. 
 
 8. If a simple servitude be sufficient, should be limited thereto. Id. 
 
 9. The doctrine of eminent domain is strictly applicable only to the condemna- 
 tion of property, and not to the collection of a tax. Harward v. St. Clair Drain- 
 age Co., N. S. ix. 718. 
 
 10. A corporation whose object was to levee and drain ovei-flowed lands, has 
 no right to levy a tax on lands benefited, and the doctrine of eminent domain 
 does not apply. Id. 
 
 11. The right of— subject discussed. 0. S. v. 1 ; 0. S. iv. 641. 
 
 12. Power of legislature to authorize municipal corporation to take land for 
 widening streets. Dorgan v. City, N. S. vi. 439. 
 
 1.3. How compensation may be ascertained. Id. 
 , 14. Surrender of whole estate by owner to corporation in such case. Id. 
 
 15. The rights of taxation and eminent domain are separate and distinct 
 rights, and the public use sufficient to support legislation for one purpose is not 
 necessarily sufficient to support it for the other. Whiting v. Sheboygan Railroad 
 Co., N. S. ix. 156. 
 
 16. Private property may be taken by eminent domain for public use on ade- 
 quate compensation. Coster v. Tide-water Co., N. S. vii. 760. 
 
 1 7. The rights of eminent domain and taxation may be employed in reclaim- 
 ing large tracts of land, Tand the question of using these powers is with the 
 legislature. Tide-water Co. v. Coster, N. S. vii. 761. 
 
 18. The public use, which justifies the exercise of eminent domain, consists 
 in the enjoyment of the land by the public, and not in the mere incidental ad- 
 vantages that may accrue to the public. Whiting v. Sheboygan Railroad Co., N. 
 S. ix. 156. 
 
 19. A neighborhood road is not a private road, and the question of taking it 
 for public use is not a question of eminent domain. Kissinger v. Hanselman, N. 
 S. X. 665. 
 
 20. Constitutional provision that private property shall not be taken for public 
 use without compensation, must be construed to protect citizens while guarding 
 the commercial interests of the country. Stone v. Railroad Co., N. S. xiv. 74. 
 
 EMPLOYEE. 
 
 1. Action for injuries sustained. See Railway Servant. 
 
 2. When an employee enters into the service of a railroad company, he as- 
 sumes the risk incident to such employment. Hawley v. B. Sf 0. Railroad Co., 
 0. S. vi. .352. 
 
 ENCYCLOPEDIA. 
 
 1. Editor has no right to alter articles of contributon whose articles appear 
 under his own name. Malgaigne v. De Saint Priest, 0. S. i. 42. 
 
 2. The editor of a literary work cannot suspend the publication without the 
 author's consent. Saint Julian v. Duniol, 0. S. i. 46. 
 
 ENDORSEMENT. 
 
 1. Bill of exchange. Agreement between the drawer and acceptor. Holmes 
 T. Kidd et al., 0. S. vii. 563. 
 
 2. Where negotiable paper has been put in circulation by fraud. Cummings v. 
 Mead, 0. S. vi. 51. 
 
 ENEMY. 
 
 1 . The intervention of the late war was a sufficient excuse to the holder of a 
 policy of life insurance for not paying his premiums. Hancock v. New York 
 Life Ins. Co., N. S. xiii. 103. 
 
 2. War claims against the United States ; the subject discussed. N. S xiii. 
 265, 337, 401. 
 
 ENGLISH JURISPEUDENCB. Recent developments in. N. S. i. \2S. 
 
ENGLISH LANGUAGE— EQUITY. 385 
 
 ENGLISH LANGUAGE. 
 
 1. Signs of degrees and minutes not part of. State v. Jericho, N. S. vii. 762. 
 
 2. Presence of partner who understood English imperfectly at conversation, 
 resulting in submission of partnership matter to arbitration, not conclusive of 
 his assent. St. Martin v. Thrasher, N. S. vii. 764. 
 
 ENGLISH MERCHANT SHIPPING ACT 1854. 
 
 The collision of the Tuscarora and the Andrew Foster, two American ships, 
 in the Irish Channel ; as both ships were American, neither could avail herself 
 of the British statute, before an English court. Cope v. Doherty, 0. S. vii. 
 181. 
 
 ENLISTMENTS. 
 
 1. Enlistment of minor by military authorities, without consent of parent 
 or guardian, is void, and he may be discharged on habeas corpus. Matter of W. 
 II, Dohhs, a minor, 0. S. ix, 565. 
 
 2. Town voting to pay bonnty to those who should enlist and be credited to its 
 quota, bound to pay those enlisted prior thereto. Johnson v. Newfane, N. S. vii. 
 635. 
 
 3. Enlistment and desertion may be proved otherwise than by record. Leba- 
 non V. Heath, N. S. vii. 315. 
 
 4. Congress has power to prohibit state judges from interfering with enlist- 
 ments by habeas corpus. Matter of 0' Conner, N. S. vii. 60. 
 
 ENROLMENT. 
 
 The question whether a vessel is foreign or domestic depends not upon her en- 
 rolment, but upon the residence of her owners. 0' Callaghon v. Joseph Riggs, 0. 
 S. V. 139. 
 
 ENTRY. 
 
 1. Where the owner of land has been dispossessed, a mere casual or stealthy 
 entry by him does not disturb the adverse possession of the disseisor. His 
 entry must be Intended as an act of possession. Burrows v. Gallup, N. S. vi. 
 84. 
 
 2. Where therefore the court charged the jury that a party who claimed a pre- 
 scriptive right to a public landing must have excluded the public and every 
 member of it, it was held that the charge was open to exception, as implying an 
 actual exclusion of every member of the public from the premises, while it 
 should have required only an exclusion from the possession. Id. 
 
 3. An entry by a mortgagee upon one of several lots not mortgaged is an en- 
 try upon all in same county. Green v. Pettinyill et al., N. S. viii. 64. 
 
 4. The burden of proof is on the party entering on land for breach of condi- 
 tion. Marble Co. v. Ripley, N. S. x. 198. 
 
 5. In a writ of entry tenant's disclaimer may be amended any time before 
 judgment. Wells v. Manufacturing Co., N. S. xi. 56. 
 
 EQUITY. 
 I. Equity Principles in General, and heuetn op Equitable Juhisdiction. 
 
 1. Equity will enforce a covenant made with a vendee. Kirkpatrick i. Pc-^ 
 shine, N. S. xiii. 54. 
 
 2. Bill in equity will not lie to remove cloud from title, where the respondent 
 had a homestead therein. Rooney v. Soule, N. S. xiii. 36. 
 
 3. Where property which is sold under a decree in equity is represented as of 
 indisputable title, and purchaser discovers that title is defective, equity will com- 
 pel the restoration of the money. Preston, Trustee, v. Freyer, N. S. xiii. 258. 
 
 4. A tax-payer having no other interest cannot maintain hill in equity again.it 
 the public authorities to prevent acts claimed as illegal. Tifft v. City of Buffalo, 
 N. S. xiii. 127. 
 
 5. Jurisdiction on the ground of accident — subject discussed. O. S. ik. 449. 
 
 6. Adoption of the principles of, in the administration of the common law — 
 subject discussed. 0. S. viii. 513, 641, 705. 
 
 7. Construing of statutes by — subject discus.sed. O. S. vi. 513. 
 
 8. To compel the delivery of deeds to those entitled to them, is an old head 
 of equity jurisdiction. Slantonv. Miller, N. S. xii. 729. 
 
 9. So is the delivery of deeds that have been placed in escrow upon a condition 
 which has been performed. Id. 
 
 25 
 
886 EQUITY. 
 
 10. Where the condition has happened, the equitable interest of the grantee is 
 ripened Into an absolute equitable (if not) legal title, and the grantee is entitled 
 to a delivery of the deed in escrow. Stanton v. Miller, N. S. xii. 729. 
 
 11. A demurrer to plaintiff's replication admits all the facts as therein stated, 
 and the defendant is bound by them. Farmers' Bank of Maryland v. Thomas, 
 N. S. xii. 786. 
 
 12. A person becomes a party to equity proceedings and is bound thereby, by 
 appearing to the suit and filing his claim. Id. 
 
 13. A party who seeks payment of his claim out of the proceeds of land sold 
 under a decree, cannot impeach the decree afterwards. Id. 
 
 14. Equity relieves against a mistake, as well as against fraud, in a deed or 
 contract in writing, whether it bo concerning land or other thing, and there is nd 
 difference in this respect between that class of cases required by the Statute of 
 Frauds to be in writing and those not within the statute ; and parol evidence is 
 admissible to prove the mistake, though it be denied in the answer. Wall et al. 
 V. ArringtoH, O. S. ii. .381. 
 
 15. A mere creditor at large will not be entertained in equity to enable him to 
 reach the equitable estate of his debtor. He must obtain a judgment at law 
 binding the real estate of his debtor before he can' come into equity. The judg- 
 ment lien is the necessary foundation for the equitable jurisdiction, and equity 
 lends its aid to make that lien effectual whenever it cannot be enforced by exe- 
 cution at law. Vint v. Hars of Kinij, 0. S. ii. 712. 
 
 16. Contracts between firms composed of same persons are deemed obligatory 
 in equity, though void at law. Caleote v. Stanton, O. S. iii.. 49. 
 
 17. Wherever a remedy or relief is more full and complete in equity than at 
 law, equity will take jurisdiction. Id. 
 
 18. Where an equitable interest in a chose in action is vested in the holder by 
 assignment, his rights will be enforced in equity, if the remedy at law is doubtful 
 or difficult. Id. 
 
 19. Courts of equity are not ousted of an original jurisdiction because the 
 same has been answered by courts of law, or has been conferred upon the latter 
 by statute. Id. 
 
 20. How far courts of, bound by Statute of Limitations. Id. 50. 
 
 21. Fraiid and concealment will prevent the running of the Statute of Limita- 
 tions, and equity will grant relief. Id. 
 
 22. A purchaser with notice of outstanding equities, taking the legal title from 
 a bonS, fide purchaser, who had no notice of such outstanding equities, holds the 
 land discharged from the equities. Card v. Patterson, O. S. iv. 702. 
 
 23. A covenant not to sue, is in equity a release. Jones v. The Quinnipiack 
 Bank, N. S. i. 314. 
 
 24. Where an instrument purporting to create a trust in respect to real estate 
 is void upon its face, it will carry its own condemnation with it, and will not 
 ba, m a proper and legal sense, a cloud upon the title which will authorize a 
 court of equity to interfere to set the instrument aside, llotchkiss v. Eltiny, N. 
 S. i. 508. 
 
 25. Where the courts of a state, in their ordinary jurisdiction as courts o( 
 equity, undertake to aid and direct an administrator in the execution of his trust, 
 and where the interests of the state's own citizens, as well as of the non-resi- 
 dents, are involved, and the non-residents are made parties to the cause in the 
 manner pointed out by special legislation, the rule of comity requires that para- 
 mount authority should be yielded to the court before which the proceedings were 
 first instituted, and where the jurisdiction first attaches, notwithstanding the 
 court may have concurrent jurisdiction, one being a Federal and the other astate 
 tribunal. The Board of Foreign Missions of the Preshi/terian Church v. McMaster, 
 O. S. iv. 526. 
 
 26. A bill in equity may be maintained by one underwriter against the in- 
 sured and the other underwriters, on the same vessel for an account and an ad- 
 justment of the loss among the parties, in order to prevent a multiplicity of 
 suits. Insurance Co. v. Goodman, 0. S. iv. 481. 
 
 27. Where A. and B. exchanged farms, A. agreeing to pay B. one thousand 
 dollars in addition to the farm which was conveyed to him, and the wife of A. 
 refuses to unite with her husband in the conveyance, which refusal is bv the con- 
 invance of A., the court will not deprive B. of tlie benefit of a specific perform- 
 
EQUITY. 387 
 
 ance of the contract, and will refer the matter to a master to settle the convey- 
 arice, so as to afford B. complete indemnity. Paul. v. Young, O. S. iv. 412. 
 
 28. Where a complainant on the faith of an agreement with the defendant 
 has put himself in a situation from which he cannot extricate himself, this circum- 
 stance will induce a court of equity to give him relief. Id. 
 
 29. Where a court of equity will decree a specific performance. Id. 
 
 30. A court of equity will not interfere with proceedings in partition begun at 
 law, unless necessary to protect a partv from fraud. Ball v. Piddock N^S x 
 349. 
 
 31. Courts of equity have peculiarly cognisance of matters of fraud, and over 
 instruments affected by fraud, and will declare them void on that account. Mon- 
 moxuh Co. V. Hutchinson, N. S. x. 348. 
 
 32. A court of equity will never lend its active aid to a party who, by superior 
 knowledge and artful silence, has gained an unfair advantage. Erie Railroad v. 
 Del. ^ L. Railroad, N. S. x. 351. 
 
 33. A court of equity will decide a question which was proper for an issue, if 
 it is brought to a hearing. Duston v. LeMell, N. S. xii. 322. 
 
 34. Where the fact of a nuisance is clear, equity will interfere without a trial 
 at law. Id. 
 
 35. Will not relieve against a judgment suffered to go against one by negli- 
 gence, who had a valid defence. Robinson v. Wheeler, N. S. xii. 322. 
 
 36. A court of chancery has no power to prevent the holding of an election 
 of officers. People ex rel. Fitnam v. Galeshurg, N. S. ix. 262. 
 
 37. A court of chancery has no jurisdiction to determine the validity of an 
 election of the directors of a private corporation. Ow^n v. Whitaker, N. S. ix. 
 318. 
 
 38. In equity, time is not of the essence of a contract unless expi-essly made 
 so. Bulloch V. Adanis^ Ex'rs, N. S. ix. 38.5. 
 
 39. Where there is a positive statutory remedy, which may be pursued, equity 
 cannot interfere on the ground of irreparable mischief. Lex nemini/acit injuriam. 
 Broum's Appeal, N. S. x. 797. 
 
 40. Irreparable damage cannot be alleged against statutory remedies legally 
 pursued. Id. 
 
 41. A devise in trust "for a home for infirm and invalid gentlemen merchants," 
 is good under the laws of Pennsylvania, is valid as a charitable use, and will be 
 sustained as a trust. Cresson v. Cresson, 0. S. vi. 42. 
 
 42. Will not aid mortgagor, without allowing advancements, made after breach 
 of condition of mortgage under oral agreement. Stone v. Lane, N. S. v. 319. 
 
 43. The owner of the servient estate cannot hy the unlawful destruction of an 
 easement extinguish the right of the owner of the dominant estate thereto. 
 Mon-ison V. Marquardt et al., N. S. vii. 336. 
 
 44. A decree of foreclosure of a mortgage while a state is in an insurrection, 
 opened by a court of equit}'. Connecticut Ins. Co. v. Hull, N. S. vii. 606. 
 
 45. No relief in equity can be had hy the next of kin against the sureties on 
 administrator's official bond. Dorsheimer v. Rorbach, N. S. xi. 773. 
 
 46. The next of kin may maintain a suit in equity for his distributive share. 
 Id. 
 
 47. Ejectment, and not a bill in equity, is the appropriate remedy for a title. 
 Hoffman v. Beard, N. S. xi. 593. 
 
 48. Stipulation will not be added to contract, where no fraud or mistake in 
 drafting. White v. Railroad Co., N. S. v. 58. 
 
 49. Equity will not interfere to enforce a forfeiture. Id. 
 
 50. Bill to quiet title will not lie by holder of legal title against adverse 
 claimant proceeding at law. Moran v. Palmer, N. S. v. 62. 
 
 51. Bill dismissed, if title on hearing differs from that alleged in bill. Id. 
 
 52. In a subscription to erect a church, I. H. subscribed "fifty dollars and the 
 lot to build on." In a bill to compel heir to convey a particular lot of ground, 
 held description incurably defective. Church v. Farrow, 0. S. iii. 572. 
 
 53. General rule, that joint and separate debts and debts accruing in different 
 rights, cannot be set off. Brewer v. Norcross, N. S. v. 63. 
 
 54. But equity is independent of statutes of set-off; will allow it, although 
 debts are not mutual. Id. 
 
 55. Although equity will, in some cases, interfere to assert and protect future 
 
388 EQUITY. / 
 
 rights, yet it will not decree in thesi as to the future rights of parties not before 
 the court or in esse. Cross v. De Valle, N. S. iii. 630. 
 
 56. Jurisdiction in cases of private nuisance. Burnham v. Kempton, N. S. iii. 
 380. 
 
 57. Injunction will be granted where the injury would be irreparable. Niagara 
 Bridge Co. v. G. W. Railroad Co., N. S. iii. 122. 
 
 58. Jurisdiction to compel restitution of money improperly paid by ofiBcers of 
 a town. Frost v. Belmont, N. S. iii. 374. 
 
 59. A bill lies to set aside a deed procured by frand. Martin r. Graves, N. S. 
 iii. 62. 
 
 60. Amendment after demurrer where there is laches. Bank r. Stevenson, N. 
 S. iii. 697. 
 
 61. Rehearing on ground of newly-discovered evidence. Dennett v. Dennett, 
 ». S. iii. 125. 
 
 62. When a bill dismissed is a bar to subsequent bill. Borrmvscale v. Tuttle, 
 N. S. iii. 62. 
 
 63. What may be included in the defence of want of equity. Burnham v. 
 Kempton, N. S. iii. 380. 
 
 64. Party desiring relief on ground of mistake must oflfer to rescind. Sand- 
 ford V. Trnvers, N. S. ii. 566. 
 
 65. Bill will not lie to compel reconveyance by grantee in deed fraudulently 
 obtained before delivery. Pratt v. Pond etal., N. S. ii. 509. 
 
 66. Bill will lie to compel mortgagor to deliver up mortgage intrusted to him 
 to have recorded. Pierce v. Lamson, N. S. ii. 509. 
 
 67. Bill to quiet title by one not in possession dismissed. Blackwood v. Van 
 Vtiet, N. S. ii. 571. 
 
 68. Courts have no jurisdiction on a bill in equity by a state to enjoin the 
 Secretary of War from carrying out an Act of Congress. Georgia v. Htunlon, 
 N. S. vii. 441. 
 
 69. When a court of equity has jurisdiction, if the relief prayed for cannot 
 be granted, damages may be awarded in lieu thereof. Masson Sf Besanson's Ap- 
 peal, N. S. xii. 402. 
 
 70. Equity will restrain a trespass of a permanent nature. Id. 
 
 71. A party-wall belongs to the party who builds it, and equity will restrain 
 another breaking into it, until he pays for it. Id. 
 
 72. No relief will be given in equity to aid a deed alleged to convey a good 
 legal title, and prior in day to the one against which protection is asked. Black 
 V. Keibi/, N. S. xii. 464. 
 
 73. No relief can be given in favor of a conveyance not proved to exist nor 
 admitted in the answer. Id. 
 
 74. A defendant cannot have any positive relief on his part. Id. 
 
 75. A court of equity has no jurisdiction to remove an officer from an office 
 of which he is in possession, or to declare it fori'eited. Johnson et al. v. Jones 
 et al, N. S. xii. 467. 
 
 76. Where an election has been obtained by fraud or breach of trust equity 
 has jurisdiction. Id. 
 
 77. Equity cannot correct a misdescription of land, sold at a sheriff's sale, 
 at the suit of the purchaser. Rogers v. Abbott et al., N. S. xii. 532. 
 
 78. Decree in, is in personam. May deal with contracts relating to land not 
 within jurisdiction of court. Wood v. Warner, N. S. vi. 571. 
 
 79. When complainants may seek account against the joint owners of a guano 
 island, Id. ' 
 
 80. When a hearing can and cannot proceed, where some of the respondents 
 do not reside within the jurisdiction. Lawrence v. Rokes, N. S. vi. 248. 
 
 81. Court, before hearing, may require satisfactory evidence that parties not 
 within jurisdiction have actual knowledge of pendency of bill against them. /(/. 
 
 82. Bill not sustained by proof of other like matters, not set forth therein. 
 Hubbard \. Winsor, N. S. vi. 320. 
 
 83. Decree dismissing bill, not on merits, no bar to a subsequent suit. Hughes 
 V, United States, N. S. vi. 443. 
 
 84. Jurisdiction of — when defendants were proceeding to acquire title to land 
 under a destroyed instrument. Fonda v. Sage, N. S. vi. 60. 
 
 85. What bill to restrain collection of taxes, as a cloud upon the title, must set 
 forth. Conway v. Showermun, N. S. vi. 320. 
 
EQUITY. 389 
 
 86. Loss of equUv to set aside fraudulent decree by laches. Campan v Van 
 Dijkfi, N. S. vi. 635. 
 
 87. When court will compel accounting under prayer for general relief. Wood 
 V. Brown, N. S. vi. 121. 
 
 88. Bill in, proper proceeding for recovery of homestead. Miles v. Mihs, N. 
 S vi. 250. 
 
 89. The minor children are proper parties thereto. Id. 
 
 90. The appearance of a defendant to a bill confers jurisdiction, unless it 
 is for the purpose of setting up want of jurisdiction. Merrill v. Haughton, N. 
 S. xii. 56. 
 
 91. If thei-efore a party appears, and at the same time that he makes the 
 objection demurs to the bill for want of equity, the defect of jurisdiction is 
 cured. Id. 
 
 92. A trade-mark for a brand of segars containing a false statement — in- 
 junction refused to restrain imitating it. Palmer v. Harris, N. S. viii. 137. 
 
 93. Although at common law an assignment will not convey a chattel unless 
 it is in esse at the time of the transfer, it is otherwise in equity. Ludlow v. Hurd, 
 O. S. vi. 493. 
 
 94. An agreement to take, in lieu of arrears of income of a life-interest, re- 
 coverable in equity. Lovett v. Hankins, N. S. vi. 52. 
 
 95. Where a bill in equity is brouijht against the sfockholders of a corpor.a- 
 tion for the purpose of charging them personally. Erichson v. Nesmilh, N. S. 
 vi. 494. 
 
 96. Where certain of the stockholders within the jurisdiction are insolvent. 
 Id. 
 
 97. Where creditors of an insolvent will be aided in equity. Bigelow v. 
 Ai/rault, N. S. ^;i. 59. 
 
 98. The doctrine of subrogation and equitable contribution discussed. Note 
 to Brown V. Simons, N. S. iii. 154. 
 
 99. Where equity follows its own rules. Michigan Ins. Co. v. Brown, N. S. 
 iii. 46. 
 
 1 00. Bonds secured by mortgage issued by a railroad, but signed by the president 
 as an individual and not as president, held that the transaction in a court of equity 
 is an equitable mortgage. Miller el al. v. Rutland Railroad Co., N. S. iii. 616. 
 
 101. There is no need of a preliminary decree for the reformation of the deed. 
 Id. 
 
 102. Suit in equity against ((cceptor of a "lost bill. Edge v. Bumford, N. S. 
 iii. 441. 
 
 103. Unrecorded deed is void against a subsequent recorded deed, even in 
 equity. .Johnson v. Crane et al., N. S. iii. 254. 
 
 104. Equity will not compel the affixing of a seal to a voluntary deed. Eaton 
 V, Eaton, N. S. iii. 509. 
 
 105. To exclude a party from relief against another engaged in the same 
 fraud, he must be not only in delicto, but in pari delicto. Freelove v. Cole, N. S. 
 iii. 638. 
 
 106. Qucere, whether the recitals of a deed executed by a grantor to a grantee, 
 tending to show the execution of a former deed by the same grantor to another 
 grantee, estops the grantor and those claiming under him from denying the fact 
 of the execution of such deed ? This question cannot be determined unless the 
 party claiming a benefit nnder such deed puts the fact of its execution distinctly 
 in issue by bringing his bill to set it up as a lost deed, averring its execution and 
 loss. Vint V. King, O. S. ii. 712. 
 
 107. A bill for specific execution of a contract is not entertained in equity as 
 a matter of right, but is addressed to the sound discretion of the court, t^aso 
 in which, in the exercise of this judicial discretion, the prayer for specific execu- 
 tion was denied. Id. 
 
 t08. A court of equity will not relieve against a conveyance made to prevent 
 the grantor's property from being sacrificed and his creditors from recovering 
 their money. Eijre v. Eyre, N. S. viii. 121. 
 
 109. In a suit to set aside a conveyance to a trustee to hold in trust for one 
 person for her life, and at her death to such of her children as she may 
 appoint, such children as the cestui que trust may have are not necessary parties ; 
 their interest is too uncertain and contingent. Booraem v. Wells, 'iH. S. viii. 121. 
 
 110. An injunction will be dissolved upon the answer only when it denies ex., 
 
390; , - EQUITY. 
 
 plicitly the facts upon which the equity of the bill is founded. Tmsey v. Baler, 
 N. S. -viii. 122. 
 
 111. Injunction will issue to prevent the cutting down of fruit trees, shade 
 trees or ornamental shrubbery, by tenant for life. Taiitter v. Mayor of Mmris- 
 tawn, N. S. viii. 127. 
 
 112. A bill in the nature of a bill quia tima, will not lie by heirs at law in 
 anticipation of the trusts under a will becoming incapable of execution. Girard 
 y. Philaddphia, N. S. viii. 245. 
 
 113. Every intendment will be made to support a sale made under the decree 
 of a court of equity, unless the price is so grossly inadequate as to injure parties 
 not in default. Farmers' Bank of Maryland v. Clarke, N. S. viii. 250. 
 
 114. A bill charging that a creditor cannot obtain a settlement of his claim 
 twelve months after an assignment, is not demurrable. Dobbins v. Porter, N. S. 
 viii. 309. 
 
 115. Will not set aside an agreement intended to defraud third parties, as 
 between the parties themselves. Sweet v. Tinslar, N. S. viii. 438. 
 
 116. 'Will relieve against contracts made in mutual mistake. Watts v. Cum- 
 mins, N. S. viii. 696. 
 
 117. When a party asks a chancellor to restrain the inequitable use of a legal 
 title, he must show such facts as entitle him to rescind on the ground of eitlier 
 mistake or fraud, Jd. 
 
 118. If defendant in chancery suit is sought to be made a party in his own 
 right and as executor, bill should state the fact, and pray process against him 
 in both characters. Carter v. Ingraham, N. S. viii. 697. 
 
 119. An action for the specific performance of a trust by the execution of a 
 deed may be maintained without a demand of the deed. Janes v. City of Peta- 
 lurna, N. S. viii. 697. 
 
 120. Mandamus to public officers to assess and collect taxes to pay municipal 
 bondholder ; and gucere, whether the city mijiht not obtain equitable relief by 
 means of a reduction of the amount to the sum actually paid. Commonwealth v. 
 Commissioners, SfC., S. vii. 92. 
 
 121. Absence of plain and adequate remedy at law the test of jurisdiction. 
 Watson V. SuthKrland, N. S. vii. 61. 
 
 122. The writ of assistance can only issue against persons who are parties to 
 the suit, and in all cases the parties against whom the writ is applied for should 
 have notice of the application, and are entitled to be heard. Blauvelt v. Smidi, 
 M. S.xi. 57. 
 
 123. The writ is a summary process, only used when the right is clear and 
 there is no equity in the defendant. Id. 
 
 124. Courts of equity have no general supervisory power over the govern- 
 ment of municipal corporations. Phelps v. City of Watertown, N. S. xi. 398. 
 
 125. Courts of equity will not interfere between an individual citizen.and 
 municipal authority unless for an injury falling under a recognised head of 
 equity. Id. 
 
 126. A tax-payer filing a bill to restrain the city from prosecuting a contract for 
 improving the streets, and not alleging that his premises are interfered with, 
 or that taxes had been levied to pay the contractors, is not entitled to relief. Id. 
 
 127. A bill to quiet title, filed by one not shown to be in possession agains* 
 one who is, and nothing appearing to prevent proceedings at law, cannot be 
 maintained. Barron v. Bobbins, N. S. xi. 532. 
 
 128. A bill in equity may be maintained to redeem a pledge if an account is 
 waived, or if the pledge has been assigned. White Mountain Railroad Co. v. 
 Bay State Iron Co., N. S. xi. 660. 
 
 129. The pledgors of bonds secured by mortgage may redeem after fifteen 
 years, notwithstanding the mortgage has been foreclosed. Id. 
 
 130. Upon affidavit of the complainant, in a proceeding in equity, that the de- 
 fendant conceals his property so that no attachment or levy thereof can be made, 
 and that there is good reason to believe that he is about to leave the state to avoid 
 the payment of his del)ts, and sufficient evidence in support thereof, any justice 
 ot the Supreme Judicial Court, in vacation, is empowered to issue an order re- 
 quiring the arrest of the defendant, or an attachment of his goods or estate, as 
 security for the enforcement of the final decree of the court in the proceedings 
 in aid of which such order is issued. Samuel v. Wiley, N. S. xi. 755. 
 
 131. Independent of statute authority, and under thu powers essentially inci- 
 dent to the obtaining security for the performance of its decrees, a court of 
 
EQUITY. 391 
 
 equity, ov a justice thereof, in vacation, may by wi-it of capias order tlie arrest 
 of a party intending to leave tlie state in order to avoid such decrees, in a case 
 where the complainant has not a lefrnl remedy and cannot hold the defendant to 
 bail. Samuel v. Wiley, N. S. xi. 755. 
 
 132. The authority and practice in such cases are analogoas to the authority 
 and practice pertaining to the writ of ne exeat regno, as recognised and admin- 
 istered by the English law. Id. 
 
 133. A court of equity will not enforce an executory contract when the con- 
 sideration is founded on fraud. Ownes v. Ownes, N. S. xi. 776. 
 
 134. Courts of equity have recognised and established this distinction between 
 conveyances and executory contracts. When the title is vested, they never 
 avoid it for want of consideration ; and, on the other hand, they never enforce 
 an executory contract without consideration. They treat it as a nullity. Id. 
 
 135. Constructive notice is a doctrine not to be extended. Ware v. Eymoni, 
 O. S. iii. 700. 
 
 136. When a purchaser is sought to be affected with constructive notice the 
 question is not whether he might not have acquired knowledge, but whether his 
 not obtaining it was an act of gross and culpable negligence. Id. 
 
 137. Courts of equity must have complete control over all the matters in con- 
 troversy. Voorhees v. FrUbee, N. S. xii. 108. 
 
 138. The sale of a house situated on leased ground confers no title. Conhlin 
 V. Foster, N. S. xii. 257. 
 
 139. Equity will set aside a transfer of wife's property to husband for a nomi- 
 nal consideration. Stiles v. Stiies, N. S. v. 252. 
 
 140. A court of equity has jurisdiction over awards. West Jersei/ Railroad 
 Co. V. Thomas, N. S. x. 343. 
 
 141. When equity will relieve parties failing to perform. Tibbs v. Morris, N. 
 S. V. 440. 
 
 142. In all cases where real transaction was a loan of money, parol evidence 
 is admissible, and equity will give effect to the writings according to the intent. 
 Tibbs V. Morris, N. S. v. 378. 
 
 143. Time, as a general rule, is the essence of a contract in equity for sale of 
 land. Go'dmuth v. Guild, N. S. v. 506. 
 
 144. Goods sold on process and purchaser pays the money to the creditor, 
 sheriff may have bill in equity against creditor for his claim. Barker v. Barker, 
 N. S. vii. 253. 
 
 143. In ascertaining facts from conflicting evidence, a chancellor is not neces- 
 sarily to be governed by the preponderance of the testimony. Marlowe el ux. v. 
 Benagh, N. S. xiv. 703. 
 
 146. The Appellate Court will not reverse because it cannot see that the chan- 
 cellor's finding of facts is right. Id. 
 
 147. The court must be convinced it is wrong. Id. 
 
 148. Cannot grant relief against statutory forfeiture in the absence of fraud. 
 Cameron v. Adam^, N. S. v. 703. 
 
 149. Inadequacy of price does not vitiate a sale of mortgaged premises under 
 foreclosure, if the sale is fair and regular. Id. 
 
 150. Covenant to support must be limited to time of service, and if right is 
 settled at law ; in case where master dies equity will order assets set aside to dis- 
 charge the duty. Petrie v. Voorhees, N. S. vii. 696. 
 
 151. The owner of a servient estate cannot by the unlawful destruction of an 
 easement extinguish the right of the owner of the dominant estate thereto, and 
 the latter may have relief in equity. Morrison v. Marquardt, N. S. vii. 336. 
 
 152. Jurisdiction of Courts of Chancery to enforce charitable uses; leading 
 article upon. N. S. i. 129, 321, 449. 
 
 153. A creditor cannot file a bill to set aside a transfer of property fraudu- 
 lently made by his debtor, until he has a judgment or execution, such as 
 would give a lien on that property if not transferred. Green v. Tantum, N. 
 S. viii. 120. . . . 
 
 154. Equity jurisdiction of the United States Circuit Court in controversies m 
 regard to patents. Sanders v. Logan, 0. S. ix. 476. 
 
 155 Where, on a bill filed to recover back purchase-money paid, &c., on con- 
 tract for purchase of land which was afterwards rescinded by consent of both 
 parties the respondent answer, and submits his defence, it is too late to object to 
 the jnrisdicti«n on the ground that plaintiff had a remedy at law. NcclMson v. 
 Pine, 0. S. iv. 636. 
 
392 EQUITY. 
 
 156. The grant of equity powers to the courts of Pennsylvania does not inter- 
 fere with their jurisdiction to enforce performance of an agreement in an eject- 
 ment at common law. Corson v. Mu'vanij, N. S. iv. 478. 
 
 157. A court of equity has jurisdiction to decree alimony to a wife on petition, 
 though no divorce is asked. Galland v. Galland, N. S. ix. 463. 
 
 158. In a court of equity the Statute of Limitations on a cause of action 
 which has been fraudulently concealed, runs from the discovery of the fraud. 
 Sparks v. Farmers' Bank, N. S. ix. 365. 
 
 159. Court of equity will not award a new trial at law where the defence is 
 legal. Walker v. Kretsinger, N. S. ix. 387. 
 
 160. Equity inay compel one creditor to satisfy his debt out of a particular 
 fund to which he alone can resort. Morrison v. Kurtz, O. S. iii. 637, and see 
 Boulware y. Witherspoon, O. S. iii. 572. 
 
 161. Partnership estate should be first exhausted to pay partnership debts, [d. 
 
 162. Bill lies to ascertain height to which owner of dam is entitled to flow 
 back water. Carlisle v. Cooper, N. S. vii. 698. 
 
 163. It is not necessary that the title of the plaintiff should be established and 
 possession obtained by an action at law. Id. 
 
 164. The owner, having in the trial of his complaint given the forged deed, in 
 evidence, is entitled to prove the forgery. Id. 
 
 165. Though equity will sometimes give effect to acts not in themselves bind- 
 ing obligations at law, yet it does so only to reach those who oufjht to be made 
 responsible, or who are liable in person or estate to pay a debt. It will not give 
 relief to a creditor out of the separate estate of the wife, where the debt was not 
 hers, but that of the husband; and where her estate only, subject to the lien of 
 the mortgage held by her trustee, was pledged, the pledgee cannot require 
 her to make good his mortgage out of the proceeds of the sale of the property be- 
 longing to her trustee under the mortgage in her favor. lialz's Appeal, N. S. i. 
 630. 
 
 166. In equitable ejectments the judge acta as chancellor. Ballentinev. White, 
 N. S. xix. 755. 
 
 167. Chancery will not entertain bill to impeach a judgment at law for mere 
 irregularity. T. of Wardsboro v. Whitingham, N. S. xiii. 57. 
 
 168. Nor to try the truth of an officer's return by parol testimony. Id. 
 
 169. Tenant for life of personal property may bo compelled in equity to give 
 security to remainder-man. Lewetj v. Lewe(/, N. S. iv. 120. 
 
 170. Equity will sustain a mortgage made for necessaries by a wife who left 
 her husband in 1847. Frary v. Booth, N. S. iv. 142. 
 
 171. Equitable mortgage raised by assignment. Peckham v. Eadduck, N. S. 
 iv. 506. 
 
 172. Where the mortgage authorizes payment of the expenses of the mort- 
 gagee. Branson v. Railroad Co., N. S. iv. 767. 
 
 173. Mortgage, though only a lien in equity, becomes an absolute title on fore- 
 closui-e. Smith v. Gardner, N. S. iv. 381. 
 
 174. Will not aid a creditor to reach his debtor's property, unless the debt is 
 clear, and there exists some special ground for the interposition of the court. 
 Board of Public Works v. Columbia College, N. S. xiii. 327. 
 
 175. If a change in the amount of damage done to land t.nken by a railroad 
 occurs after the report of the commissioners, equity will relieve, as there is no 
 remedy at law. Carpenter v. Boston Sr Amhoxj Railroad, N. S. xiii. 328. 
 
 176. The Court of Chancery has power in such case to determine the amount 
 of compensation. Id. 
 
 177. Courts of equity have authority to revive suits on death of the parties, 
 independent of enactments governing the law courts. Ex parte Kirtland, N. S. 
 xiii. 451. 
 
 178. In a suit at law to administer equity, the judge sits as chancellor, and he 
 must be satisfied as to sufficiency of evidence. Faust v. Haas, N. S. xiii. 456. 
 
 179. Plain defect of jurisdiction will prevent a decree at any time. Thompson 
 V. Railroad Co., N. S. vii. 314. 
 
 180. The abolishing by states of the distinction between law and equity will 
 not change the practice of the United States courts. Id. 
 
 181. Such discretion is only reviewable where it has been abused. Id. 
 
 182. A testator devised to his nephew an estate in fee in remainder, to take 
 effect on the falling in of three lives, and the devisee survived to take. After the 
 
EQUITY. 393 
 
 testator's death, but before the estate in remainder became absolute, the nephew 
 and his children were impleaded in a bill in equity for partition of the testate 
 estate, and a decree passed, purporting to be by consent, which, by mistake, 
 erroneously declared the nephew's estate to be for life only, with remainder in 
 fee to his children. That decree, made in 1851, omitted to order deeds to exe- 
 cute the limitations of estate thus declared to the children, and no such deeds 
 were made. Afterwards a bill of review was prosecuted by the nephew, and 
 there was a decree on that, reversing the partition decree. Soon after, the 
 nephew's estate in fee under the will became absolute; and, he dying, his 
 daughter sued out a writ of error, and on that procured a reversal of the bill of 
 review decree, and then brought the present suit "to obtain execution of the 
 decree in partition, and to supply the omission therein, which is necessary to the 
 efficacy of the decree, as giving a remainder in fee to the children." The bill 
 was against purchasers, holding by deeds in fee from the nephew, or from his 
 grantees, with warranty of title from him. Held — 
 
 First — Of those acquiring title while the bill of review decree was in force : — 
 
 (1.) They were entitled to rely upon that decision, as the law which deter- 
 mined what estate they took by purchase. 
 
 (2.) The subsequent revers.al of that decree did not affect their rights. 
 
 (3.) A decree need give no day to a minor to show cause against it ; it is ab- 
 solute in the first instance. Barnes v. Hazleton, 50 111. 429, approved. 
 
 Second — Of purchasers acquiring title while the consent decree in partition 
 was in force, and before its reversal by decree in review : — 
 
 (1.) As to such, the principle applies that, on a bill to execute a decree, the 
 court will deny relief when it is seen the decree is unjust. And a decree, ap- 
 pearing to proceed by consent, where in fact there was none, and none was in- 
 tended, cannot be deemed fair a!nd just. 
 
 (2.) A decree in partition in chancery, before the statute of 1861, could not 
 pass a legal title to land ; and such a decree, omitting to order deeds, is in that 
 respect imperfect, and but the expression of a purpose without accomplishing or 
 providing the means to accomplish the object. 
 
 (3.) Where there is no valuable consideration, a court of equity upon its gen- 
 eral principles cannot complete what it finds imperfect. 
 
 (4.) The prosecution of a bill of a review to a decree, and also the making 
 of warranty deeds in fee, by the nephew, were an exercise on his part of the 
 rii'ht to revoke, while he occupied the locua pcBnitentice. 
 
 (5.) A consent decree, incomplete and ineffective, is not res judicata. For 
 the court, on an application to render it effective, to look into its real nature and 
 character, does not militate wiih the doctrine of res judicata. If otherwise, the 
 true nature of the bill would be to enforce a technical estoppel. 
 
 (6.) Though error of law shall not be alleged against a decree proceeding by 
 consent, so as to reverse it ; still, on an application to execute it, the court will 
 look to see if it be rightful or not, in determiniiig whether it will act or remain 
 passive. Wadhamsv. Gai/, N. S. xiv. 419. 
 
 183. A court of equity has no jurisdiction to avoid a will or set aside the pru- 
 bare thereof for mistake or forgery. Case of Broderick's Will, N. S. xiv. 523. 
 
 184. Nor give relief by charging the executor with a trust in favor of one al- 
 legeil to be defrauded by the forged will. Jd. 
 
 185. Such relief belongs to courts of probate. Id. 
 
 186. The same rule applies to devises of real estate. Id. 
 
 187. Semble, that where courts of probate have no jurisdiction or the period 
 for its exercise has expired, equity will give relief if there has been no laches. 
 
 -M. , . u Tl 
 
 188. Ignorance of the fraud committed does not apply in such a case. /rf. 
 
 189. Enlargement of equitable right-! may be administered by the Circuit 
 Courts of the'United States as well as by the state courts. Id. 
 
 190. Equity will not make a personal decree against the mortgagor. Insur- 
 ance Co. V. Brown, N. S. ii. 571. . <. , -ij- 
 
 191. How and for whom equity will enforce condition in restraint of building. 
 Clarke v. Martin, N. S. v. 184. -,.,,,,-.. 
 
 192. Will entertain a bill to remove a cloud upon the title of land in the com- 
 plainant's possession caused by invalid tax sale. Barnard v. Hoyt, H. b. xiv. 
 
 193. A court of equity may enforce a contract relating to land situate in an- 
 other state. Burnleg v. Stevenson, N. S. xiv. 195. 
 
S94 EQUITY. 
 
 194. Court of equity will interfere against party intendihp; to make Statute of 
 Frauds an instrument of fraud. Ryan v. Dox, N. S. vi. 122. 
 
 195. Wiien equity of pre-emption claimant not defeated by subsequent entry 
 of one obtaining patent. Hughes y. United States, N. S. vi. 443. 
 
 196. When court of equity will set aside a patent of the United States. Id. 
 
 197. What possession of real property sufficient to put on inquiry. Id. 
 
 198. Bill in equity to redeem mortgage in New Hampshire. Hally. Eall,'S. 
 S. vi. 382. 
 
 199. By whom and when maintainable. Id, 
 
 200. The complainants claim as owners in equity, in common with others, of 
 a parcel of land in the city of Cleveland, by boundaries designated, which land 
 originally belonged to the stockholders of the Connecticut Land Company, whicli 
 owned the entire Western Reserve ; and that they and their heirs are the repre- 
 sentatives of such stockholders, and tliat the lands of the Reserve were conveyed 
 to trustees for such stockholders ; that in 1836 one Thomas Lloyd fraudulently 
 procured a deed from said trustees conveying the land claimed in the suit, and 
 that the defendants are in possession of said lands, with notice of the trust and 
 fraud. The prayer of the bill is, to set aside said fraudulent deed, dissolve said 
 trust, and have a partition of said land, and account of the rents and profits 
 thereof received by the defendants. Holmes v. The Cleveland, Columbus and Cin- 
 cinnati Railroad Co., 0. S. viii. 716. 
 
 201. The defendants rely for a defence upon tlie equitable bar furnished by 
 lapse of time, want of title in equity in the complainants, and upon a dedication 
 of said land to the public by the Connecticut Land Company, as early as 1796, 
 accepted immediately thereafter and over since used in accordance with the pur- 
 poses of the dedication. They deny that they are in possession under the title 
 derived from said Lloyd, and aver that they are in possession under theauthority 
 of a decree of the state of Ohio, in pursuance of a license granted to the city of 
 Cleveland, and using the same in a manner consistent with the original dedica- 
 tion. Id. 
 
 II. Electiost. 
 
 202. Suitor cannot be compelled to elect between suit in equity to prevent 
 future injury and suit pending in law for damages for past, nor will the suit in 
 equity be delayed until the determination of the action at law, which is for a 
 different object. Carlisle v. Cooper, N. S. vii. 698. 
 
 III. Specific Performance. 
 
 203. Specific performance of building covenants and restriction. See Clark 
 Y. Martin, N. S. i. 479. 
 
 204. When specific performance will not be decreed of a land contract. 
 Clianihers v. Livermore, N. S. vi, 63.5. 
 
 205. Specific performance will not lie on a. covenant by a railroad company 
 to keep cattle guard's on plaintiff's land. Railroad Co. v. Watson, N. S. vi. 
 718. 
 
 206. Specific performance not matter of right, but of discretion. Eastman v. 
 Plumer, N. S. vi. 447. 
 
 207. When court will not decree specific performance. Id. 
 
 208. When party to a contract of sale will forfeit his claim to aid of equity 
 in enforcing it. Id. 
 
 209. Specific performance, when enforced. See Stoutenburg v. Tompkins, 0. 
 S. V. 126. 
 
 210. A court of equity will decree the specific performance of an agreement 
 to make a will. See Johnson v. Hubbell, 0. S. v. 177. 
 
 211. Bill to enforce performance of public duties by corporation, not main- 
 tainable by private party. Buck Mountain Co. v. Lehigh Co., N. S. v. 443. 
 
 212. Semble, that bill on part of Commonwealth would lie. Id. 
 
 213. The specific performance of an agreement for a conveyance in considera- 
 tion of support and maintenance may be compelled in equity. Stanton v. Miller, 
 N. S. xii. 729. 
 
 214. Considerations not sufficient to induce court to set aside contract, may 
 induce it to refuse specific performance. Id. 
 
 215. One seeking to avoid contract cannot afterwards enforce it. Id. 
 
 216. Non-performance of a beneficial parol agreement is not such a fraud as 
 will induce equity to compel performance. Walker v. Hill, N. S. x. 276. 
 
EQUITY. 395 
 
 217. When ante-nuptial contract by \voman to relinquish share in husband's 
 estate will be enforced in equity. Tarbell v. Tarbell, N. S. v. 510. 
 
 218. An agreement that a strip oF land shall be used as a street may be en- 
 forced in equity. Saegar v. Harrison, N. S. xiv. 590. 
 
 219. Release of part of condition— when equity will enforce it in modified 
 form. Clarke v. Martin, N. S. v. 184. 
 
 220. Bill for specific performance is for the discretion of the court. Gale v. 
 Archer, N. S. iv. 319. 
 
 221. Bight of personal representative to demand aid of a court of equity in 
 performing his duties. Note to Crosbij v. Mason, N. S vi. 19. 
 
 222. A bill is brought for specific execution of a contract of sale of real estate 
 between the ancestor of the plaintifiis and the defendant ; » written contract of 
 sale between the parties, and a receipt executed by the vendor to a vendee, ac- 
 knowledging the payment of a large portion of the purchase-money, are produced 
 by the plaintiff's and filed as exhibits with their bill ; no discovery is sought by 
 the bill of the genuineness of the contract and receipt, or of the fact whether the 
 money was paid or not ; the answer admits the execution of both by the defend- 
 ant, but denies that the money was in fact paid, as stated in the receipt, and other 
 evidence exists in the cause tending to show that the money was not paid : 
 Held, 1. That the answer not being responsive to the bill, was not evidence that 
 could avail the respondent. 2. That as there was no other evidence in the cause 
 tending to repel the presumption of payment arising from the execution of the 
 receipt it was proper to direct an issue to be tried by a jury, to determine whether 
 tlie money had been iu truth paid or no. Vint v. King, 0. S. ii. 712. 
 
 IV. DiSCOTEKr. 
 
 223. Plaintiff not entitled to discovery to enable hira to prepare complaint and 
 insert names of real defendants. Opdyke v. Marble, N. S. v. 253. 
 
 224. Ofliee of discovery ; when it will not be granted. Id. 
 
 225. What application for discovery of books and papers must state. Walker 
 T. Bank, N. S. v. 318. 
 
 226. ISxtent of right to discovery. Id. 
 
 227. If discoverv is needed, he must seek it while the suit at law is pending. 
 Id. ' 
 
 228. But if it is contrary to equity and good conscience to enforce a judgment 
 obtained at law, and the party discloses a fact he could not avail himself of as a 
 defence, or if he was prevented by accident or the fraud of the other party, equity 
 will relieve. Id. 
 
 229. But if he could not be a witness because the suit was against an adminis- 
 trator, the bill will be bad on demurrer. Id. . 
 
 230. Under the rules of the courts of equity in Pennsylvania a defendant may 
 by answer protect himself against discovery through a denial of the complainant's 
 title to the same extent as he could by plea in England : and he is not deprived 
 of this right by submitting unnecessarily to answer some of the interrogatories 
 of the bill against which he might also have protected himself. Perry v. Kinhj, 
 0. S. iii. 183. 
 
 231. A court of equity will grant discovery and general relief in a case where 
 a plain, adequate and complete remedy cannot be had at law : hence, when an 
 execution had been issued and no property found on which to levy, a judgment 
 creditor may file his bill for relief, and is entitled to the aid of the court to 
 discover and apply the debtor's property to the payment of the judgment. Ward 
 V. Chamberlain, 0. S. ix. 171 ; and see Attachjiest. 
 
 V. Injunction. 
 
 232. Object of preliminary injunction is to preserve the status quo, not to 
 transfer property from one to another. Farmers' Co. v. Beno, N. S. vii. 121. 
 
 233. When court will interfere by injunction with proceedings in a lower court. 
 Swing -v. St. Louis, N. S. vii. 121. 
 
 234. If evidence be vague, uncertain or doubtful, he must withdraw it from 
 the iury. Faust v. Haas, N. S. xiii. 456. 
 
 235. Will not restrain proceedings in another equitable suit in the same court. 
 Daiflon V. Relf, N. S. xiii. 777. 
 
 236. Where a person bought and took possession of a house under a forged deed, 
 the true owner is entitled, on a bill in equity, to have the deed and the record of 
 it declared void, and the deed delivered up to bo cancelled, and the purchaser 
 
396 EQUITY. 
 
 enjoined from assuming to sell the house to any one else. Bunco v. Gallagher, 
 N. S. Tii. 32. 
 
 237. An injunction may be granted by a court of blended equity and common- 
 law powers. Conomr\. Mayor, O. S. vi. 131. 
 
 238. Where the use of a particular kind of fuel is productive of injury to the 
 neighboring property, equity will not prevent if tlie fuel was such as commonly 
 used, &c. Richards v. Pkmnix Iron Co., N. S. vli. 356. 
 
 I 239. A court of equity will not interfere with a particular use of a building or 
 lot of ground, unless it amounts to a nuisance at law for which damages miglit 
 be recovered. Rhodes v. Dunbar, N. S. vii. 412. 
 
 240. Where a plaintiff and his ancestors had been in possession of an estate 
 for eighty years, and a defendant, claiming the estate under adverse title, threat- 
 ened to take possession, cut sods, and perform other damage, in order to con- 
 tinue to bar the Statute of Limitations, the court granted an injunction. Lowndes 
 v. Bettle, N. S. iv. 169. 
 
 241. But where defendant is in possession, and plaintiff claims under an ad- 
 verse title, the court will refuse to interfere, except where the acts perpetrated or 
 threatened are acts of such flagrant spoliation as to induce it to depart from tlie 
 general principle. Id. 
 
 242. Where the plaintiff is in possession and the defendant claims under an 
 adverse title, the tendency of the court has been to grant an injunction ; it will 
 at all events do so where the acts tend to the permanent injury or destruction of 
 the estate . Id. 
 
 243. Where the plaintiff is in possession and the defendant is a stranger, the 
 court will generally refuse an injunction, and leave the plaintiff to his remedy at 
 law. Id: 
 
 244. Semhle, the tendency has been to cease to observe the distinction between 
 trespass and waste, and to interfere in cases of trespass where interference seemed 
 requisite. Id. 
 
 245. If railroad has been found a nuisance, plaintiff may have injunction, 
 though not damaged. People v. Railroad Co., N. S. v. 571. 
 
 246. What is sufficient damage to uphold decree for perpetual injunction. Id. 
 
 247. The attempted cxerMse by a company of a franchise not authorized by 
 law is sufficient to uphold a decree for a perpetual injunction. Id. 
 
 248. As ancillary to the relief by injunction it is competent for a court of 
 equity to decree damages for waste or injury already sustained. Bird v. Rail- 
 road Co., 0. S. iv. 222. 
 
 249. Extent of injunction bond. Tuwle v. Towle, N. S. vi. 316. 
 
 250. Injunction against carrying passengers to and from a certain depot. Id. 
 
 251. In an action on injunction bond, defendants are concluded by the final 
 decree in equity. Id. 
 
 252. When complainant may have decree of abatement against defendant 
 building in violation of condition. Clarke y. Martin, N. S. v. 184. 
 
 253. Upon an appeal from a decree of the Circuit Court of the United States 
 for the Southern District of Mississippi, by which an injunction, previously 
 awarded the appellants, was dissolved, and the bill dismissed with costs ; the 
 decision of Supreme Court on this appeal, reaffirming well-settled doctrines of 
 equity jurisprudence. Sample v. Barnes, 0. S. i. 184. 
 
 254. An injunction will lie from the Supreme Court of Pennsylvania to re- 
 I strain the auditor-general and treasurer of the state from collecting a tax under 
 
 an unconstitutional law. Marhoe v. Hartranft., N. S. vi. 487. 
 
 255. Bill of equity to redeem a mortgage, and as to allegation therein to en- 
 join suit at law. Halt v. Hall, N. S. vi 382. 
 
 256. Under the Acts of 1 1th April 1 848 and 1 2th April 1 850, the levy and sale 
 of a wife's real estate by a creditor of her husband's on execution against him, 
 is contrary to law and may be restrained by an injunction. Hunter's Appeal, N. 
 S. i. 628. 
 
 257. By the chancery practice of Vermont. Where an injunction is awarded 
 and the complainant takes out a subpoena returnable to the next term Of the 
 court, but neglects to get it served in time, the injunction is not thereby dissolved, 
 but a new subpoena mav be issued returnable to the next succeeding term. 
 Bowev. Eddy, N. S. vii." 219. 
 
 258. The respondent may, however, come in at any time, and apply for an 
 
EQUITY. 397 
 
 order to hare the subpcena and bill served on hin in order to allow him to answer, 
 or he may move to dissolve the injunction on account of the complainant's delay 
 or invoke any otiier action of the court necessary to protectJiis rights. Howe v. 
 Eddy, N. S.'vii. 219. 
 
 259. Nuisance — equity will restrain. Harden v. Tixher, N. S. vi. 62. 
 
 260. Injunction to restrain proceedings at law in another state. Pearce v. 
 Olwii, 0. S. iii. 206. 
 
 VI. Reformation op Written Instruments. 
 
 261. Equity to reform a deed. See Statute of Frauds. 
 
 262. To correct deeds for fraud or mistake is an ancient and well-established 
 head of equity jurisdiction. Loss v. Obry, N. S. xi. 57. 
 
 263. Mistakes are corrected even when they exist in the records of courts. 
 Jd. 
 
 264. Bill to reform deed of partition. See Note to Bank v. Stone, referring to 
 Masterstone v. Finnegan, 0. S. i. 341. 
 
 265. The authority of a court of equity' to reform a written instrument does 
 not extend to any alteration of a contract made under a mistake of law. Garner 
 V. Bird, N. S. x". 66. 
 
 266. Bill will not lie by grantor to reform a deed where it appears that a 
 clause of the original agreement was left out, because he relied on the promise 
 of the grantee. Andrew v. Spurr, N. S. iv. .310. 
 
 267. A court of equity cannot strike out part of the covenants in a deed, 
 because they are oppressive to the grantee, where a corporation has voluntarily 
 bousrht lands charged by such covenants. Marble Co. v. Ripley, N. S. x. 197. 
 
 268. Will not rescind executed contract made to delay creditors and void 
 bv statute, on application of one of parties to fraud. Hershey v. Wieting, N. S. 
 t! 380. 
 
 269. A bill praying that the conveyance of certain lots be decreed void, on 
 the ground that the respondent induced such conveyance by false and fraudulent 
 representations, will be sustained. Clark v. Robinson, N. S. x. 537. 
 
 270. Courts of equity will not change deeds of conveyance or written evidences 
 of title, by proof of verbal agreements. Case v. Peters, N. S. x. 665. 
 
 271. The power of the court of equity to reform deeds in cases of. fraud is 
 constantly exercised, atd cannot now be questioned. Barnes v. Gregory, 0. S. 
 vii. 678. 
 
 272. Where the proof leaves no doubt that the sale of land was by the acre, 
 and not in gross, and was so understood by both parties, and the vendee receives 
 more land than he pays for, the vendor can compel payment for the whole quan- 
 tity sold. Id. 
 
 273. A bill in equity, on the part of the Commonwealth, asking an injunction 
 and receiver against a bridge company, on the ground that it is misapplying its 
 income, must be signed by the attorney-general. If signed by private counsel 
 merely, and at the instance of a private informer, it will be dismissed. Cominon- 
 weidth V. Allegheny Briilge Co., O. S. i. 438. 
 
 274. Court requires the clearest proof of fraud or mutual mistake to entertain 
 a suit to reform a written contract. Botsford v. McL an, N. S iv. 308. 
 
 275. Will reform a deed made by mistake of both parties, and proiect by de- 
 cree the interests of parties holding under it. Burr v. Hutchinson, N. S. xiii. 
 257. 
 
 276. Bill to correct mistake in sealed instrument: previous application to de- 
 fendant not necessary. Powell v. Insurance Co., 0. S. i. 110. 
 
 277. To reform a policy of insurance after'loss. Note to Id. 114. 
 
 278. In order to sustain a bill in equity to reform a deed on the ground of 
 mistake, there must be full and satisfactory proof that it does not conform to the 
 oral contract as understood by either party. Saivyer v. Hovey, N. S. i. 504. 
 
 279. Equity will rescind a contract for the purchase of land when obtained 
 under fraudulent representation. Risch v. Von Lilienlhal et ux., N. S. xiii. 720. 
 
 VII. Corporations, Trustees, and others acting in a Fiduciary Ca- 
 pacity. 
 
 280. One may call his co-executor to account in equity. Wood v. Brown, N. 
 S. vi. 121. 
 
 281. Stockholder may be allowed in equity to defend in the name of the cor- 
 poration for specific purposes. Bronson v. Railroad Co., N. S. iv. 571. 
 
398 EQUIir. 
 
 282. Where there are two claimants of a trust, createrl for the betiefit of an 
 meorporated religious society, a court of equity may require them to interplead. 
 First Presbyterian Society v. First Preshi/terian Society, N. S. xiv. 644. 
 
 283. Receiver not to be appointed where corporation not a party to bill. 
 Gruvenstine's Appeal. N. S. v. 251. 
 
 284. Trust resulting from purchase of land with another's money. McCart- 
 ney v. Eostwick, N. S. iv. 572. 
 
 285. Rights of creditors in New York. Id. 
 
 286. Where one partner is made sole agent the relation becomes fiduciary and 
 the law governing fiduciary relations applies. Brooks v. Martin, N. S. iv. 574. 
 
 287. It is settled at common law that a franchise is not subject to a levy on 
 execution. Ludlow v. Hurd, O. S. vi. 493. 
 
 288. In bill for relief in case of stale trust, petitioner should set forth specifi- 
 cally the reasons of his ignorance and the means of fraudulent concealment prac- 
 tised on him, &c. Badger v. Badger, N. S. iv. 506. 
 
 289. Under the Ohio statute regulating railroads, a chartered railroad corpo- 
 ration-is fully authorized to execute a mortgage as security for money borrowed 
 upon bond. Ludlow v. Hurd, 0. S. vi. 493. 
 
 290. Executors and trustees, by bill in the nature of a bill of interpleader, 
 may take the advice of a court of chancery as to tlieir duties. Crosby v. Mason, 
 N. S. vi. 13. 
 
 291. The interposition of the court in such cases is discretionary. Id. 
 
 292. When court of equity will not interfere with trustee's exercise of power. 
 City V. Shackford, N. S. vi. 446. 
 
 293. Where there are liens on the property of a railroad company, the liens 
 must be atiusted in chancery. Coe, Trustee, v. Pennodc S/- Cleveland Railroad Co., 
 0. S. vi. 27. 
 
 Vni. Accounts. 
 
 294. Bill to marshal assets, on the sole ground that there are numerous claims, 
 will not be sustained. Bryan v. Ilickson, N. S. ix. 639. 
 
 295. A bill for account by one partner after terminaiion of partnership, makes 
 all tlie parties actors. Raymond v. Came, N. S. iv. 445. 
 
 296. In a chancery cause where complex and intricate accounts are to be ex- 
 amined, they should be referred to a master for examination and report before 
 decree, and not be heard in court except upon specific exceptions taken thereto. 
 Patten v. Patten, N. S. xiv. 733. 
 
 297. Creditors, legatees, and next of kin, necessary parties only to a final 
 accounting. Id. 
 
 298. Bill to adjust a settlement between different execution-creditors. Boul- 
 ware v. Witherspoon, 0. S. iii. 572. 
 
 299. Bill for a fresh accounting to relieve against an account stated on the 
 ground of mistake, error found to lie against plaintiff, and decree accordingly. 
 Bivingsville Mamif. Co. v. Bivings, 0. S. iii. 573, 
 
 IX. Pleading and Practice in IiIquitt. 
 
 300. In equity all suits must be in the name of the party really interested. 
 Nichols V. Williams, N. S. xi. 265. 
 
 301. The complainant is inadmissible as a witness when the answer is by a 
 party in a representative capacity. Sweet v. Parker, N. S. xi. 265. 
 
 302. Where the bill prays an answer without oath, if sworn to it will be 
 treated as not sworn to. Id. 
 
 303. Many exceptions exist to the rule that in equity all must be parties who 
 have an interest in the object of the suit. Id. 
 
 304. Where the trustees of a fund belonging to parents for life, remainder to 
 the children, together with the parents are made parties defendant to a suit 
 affecting the fund, it is no objection that the children are not joined. Id. 
 
 305. A court of equity will not relieve on a general char-re of fraud, but it 
 must be alleged in what the fraud consists, and how it has been effected. N^w 
 Brunswick, Sj-c, Railway Co. v. Conyheare, N. S. i. 373. 
 
 306. Under the Act of 1845 of Pennsylvania, with regard to appeals in equity, 
 an appeal perfected after the levy of a fi. fa. or a decree, but before sale, Isa 
 supersedeas. Chtllasv. Brett, O. S. iii. 116. 
 
 307. Where two persons unite as petitioners in a bill of equity, if either is not 
 entitled to relief, tlie bill must be dismissed as to both. Jones v. Qainnipiack 
 Bank, N. S. i. 316. 
 
EQUITY. 399 
 
 308. The fixed rule in equity is, that where the rights of n, person not before 
 the court will be affected by the decree asked, the court will not make it ; bitt the 
 general rule is to be applied to each case as it ar.ses, by the aid of precedent 
 cases. Tobin v. Wnllcinshaiv, 0. S. v. 106. 
 
 309. Answer to bill not complete until filed, and death of party prevents fil- 
 ing. Giles V. Eaton, N. S. vii. 443. 
 
 310. In grantin-; new trial on issues of fact, the court is guided by rules in 
 suits at law. Murk v. Conff, Society, N. S. iv, 439. 
 
 311. Demurrer to bill to open judgment on warranty for sale of a slave is 
 properly sustained for want of equity. Renfroe v. McDiniel, N. S. ix. 639. 
 
 312. A party applying for an order to examine a party to the record in a bill 
 ■ in equity, must make it appear that the proposed witness is without interest at 
 
 the time the order is asked. Anspach v. Thompson et al., N. S. iv. 362. 
 
 313. Whether such order is jjrantable of course on a sugfjostion of no interest, 
 or only on previous notice to the opposite party, not decided. Id. 
 
 314. But in either case it must be made with a saving of all just exceptions 
 to the testimony when presented at the hearing. Id. 
 
 315. An allegation in an answer entirely impertinent to the bill cannot be 
 used as evidence for the defendant. Gunriell v. bird, N. S. x. 70. 
 
 316. An objection to the jurisdiction of chancery on the ground of an ade- 
 quate remedy at law, is too late after answer filed. Mi.gee v. Magee, N. S. x. 
 128. 
 
 317. Bill dismissed as to party complainants joined without their knowledge 
 or assent. Gravenstine's Appeal, N. S. v. 251. 
 
 318. Answer must allege facts, showing defendant's belief well founded. 
 Brewer v. Norcross, N. S. v. 63. 
 
 319. Bill in behalf of plaintiff and others who may congfe in. If no others 
 come in plaintiff must show his own title to relief. Huhb^l v. Warren, N. S, 
 iv. 186. 
 
 320. It is the settled doctrine that if the answer admits a contract, without 
 stating that it was not in writing, and setting up tlie Statute of Frauds, the 
 statute cannot be used as a defence. Walker v. Hill, N. S. x. 276. 
 
 321. A contract, though valid in the state where it is made, will not be enforced 
 in New Jersey if in violation of public law. Id. 
 
 322. Vendee of land entitled to set up in equity offsets against assignee of 
 bond for purchase-monej', and is not bound to plead them in law. Bagsdale v. 
 Hagij, O. S. iii. 53. 
 
 323. A bill in equity to compel the stockholders in a corporation to pay their 
 unpaid subscriptions must allege that the defendants by their participation in 
 the organization have waived their right to rely on a partial subscription. Fierij 
 T. Emmert, N. S. xii. 254. 
 
 324. The doctrine of multifariousness does not apply where there is a common 
 though not co-extensive liability in the defendants. Id. 
 
 325. The corporation must be party to a suit to compel subscription to stock. 
 Id. 
 
 326. Uncertainty in material allegations is not necessarily fatal to a bill filed 
 to discover uncertain facts entirely in the knowledge of defendant. Watson v. 
 Murray, N. S. xii. 320. 
 
 327. A bill by a partner of a lottery firm against his co-partners will not be 
 entertained in New Jersey. Id. 
 
 328. Even when the partnership was entered into in a state where such con- 
 tracts are legal. Id. 
 
 329. The answer will be taken as true in all points, and such answer cannot 
 be contradicted in Ohio except as provided by statute. Heed v. Shuck, 0. S. iv. 
 635. 
 
 330. A hill brought to redeem stocks pledged may be sustained, though the 
 stocks are sold. Merrill v. Haughton, N. S. xii. 56. 
 
 331. A bill by a husband and wife, praying performance of one or other of 
 two agreements for the conveyance of certain real estate, is not multifarious. 
 Green et ux. v. Richards, N. S. xii. 56. 
 
 3.32. Such a bill might be demurrable for a misjoinder. Id. 
 333. Rule laid down as to necessary parties in chancery. Traders' Bank v. 
 Campbell, N. S. xii. 119. 
 
400 , EQUITY. 
 
 334. The dismissal of a bill in equity is no bur to this action after a judgment 
 of quod computet. Tutton v. Adams, N. S. iii. 574. 
 
 335. Where chancery takes jurisdiction of an administration it applies accord- 
 ing to its own practice the laws relating to administrations in the Probate Court. 
 Key et al. v. Jones, N. S. xiv. 703. 
 
 336. Bill to correct after thirteen years is too late. Hathaway v. Thayer, N. 
 S. iv. 317. 
 
 337. One who has a joint or common interest with others in land has no right 
 to purchase an encumbrance or outstanding title, and set it up against the rest. 
 Weaver v. Wible, 0. S. iv. 384. 
 
 338. Court will not order an issue if evidence is satisfactory. Carlisle v. 
 Cooper, N. S. vii. 698. 
 
 339. Absence of plain and adequate remedy at law the test of jurisdiction. 
 Watson v. Sutherland, N. S. vii. 61. 
 
 340. Where a person bought and took possession of a house under a forged 
 deed the true owner is entitled on a bill in equity to have the deed and the record 
 of it declared void, and the deed delivered up to be cancelled and the purchase 
 enjoined from assuming to sell the house to any one else. Bunce v. Gallagher, 
 N., S. vii. 32. 
 
 341. Though the decree cannot transfer the title to such land, it binds the con- 
 science of the parties. Burnley v. Stevenson, N. S. xiv. 195. 
 
 342. The decree may be pleaded as a defence in the courts of the state where 
 land is situated. Id. 
 
 343. The submission of a case on demurrer to answer is a final submis- 
 sion, unless leave is given to reply or amend. Beaumont v. Herrick, N. S. xiv. 
 195. 
 
 344. Whether plaintiff should have leave to amend rests in the sound discre- 
 tion of the court. Id. 
 
 345. It is not necessary that the title of the plaintiff should be established and 
 possession obtained by an action at law. Bunce v. Gallagher, N. S. vii. 32. 
 
 346. The owner having in the trial of his complaint given the forged deed in 
 evidence, is entitled to prove the forgery. Id. 
 
 347. Where the holder of the legal title is a plaintiff, the misjoinder of other 
 parties having an equitable interest will be disregarded unless the objection be 
 taken by demurrer or answer on the merits. Id. 
 
 348. Bill lies to ascertain height to which owner of dam is entitled to flow 
 back water. Carlisle v. Cooper, N. S. vii. 698. 
 
 .349. Court will not order an issue if evidence is satisfactory. Id. 
 
 350. Suitor cannot be compelled to elect between suit in equity to prevent 
 future injury and suit pending in law for damages for past, nor will the suit in 
 equity be delayed until the determination of the action at law, which is for a 
 ditferent object. Id. 
 
 351. Interrogatories, though not indispensable to a bill in equity, become a 
 material part of it when founded on matter contained in the charging part of the 
 will, and such interrogatories the defendant is compelled to answer. Facts 
 alleged in answer, not responsive to plaintiff's interrogatories, but in evidence of 
 his will, must be proved by the defendant ; but if they be responsive, the plain- 
 tiff must overcome the two witnesses, or equivalent evidence. The operation of 
 the defendant's answer is the same, though the equity of the plaintifTs will is 
 grounded on an allegation of fraud. Wenge's Executors v. Groff S/- Groff, 0. S. 
 i. 633. 
 
 352. The action to foreclose tax title, under ch. 22 of Wisconsin Laws, is 
 equitable, and if owner is entitled, under ch. 89, to five years to redeem, he must 
 set it up in defence in same action. Dayton v. Relf, N. S. xiii. 777. 
 
 353. The commencement of a suit in equity by the service of a summons and 
 injunction, creates a lis pendens and a lien in the nature of an attachment or a 
 statute execution, upon the equitable property of the defendant. But the plain- 
 tiff must prosecute his action diligentlv, or the lien will be lost. Myrick v. 
 Selden, N. S. i. 508. 
 
 354. Party may explain how he unders!;ood an oath to a bill in chancery. 
 Whitcker v. Morey, N. S. vii. 187. 
 
 355. Sheriff may have bill in equity against creditor for his claim. Barkery. 
 Barker, N. S. vii. 253. 
 
EQUITY— ERROK. 401 
 
 356. Eqnitnble claim may bo set ofF against one purely legal. Railroad Co. v. 
 Railroad Co., N. S. \ii. 186. 
 
 357. A oomplainnnt cannot dismiss his own bill as to part of the relief prayed, 
 anil procfed with the residue ; he must apply to amend. Camden ^ Amboij Rail- 
 road Co. V. Stewart, N. S. viii. 121. 
 
 353. In equity, an amendment of the bill, when allowed after answer and 
 replication, does not open the pleadings unrestrictedly, Keene v. Wkeathu &■ 
 Clark;, O. S. ix. 33. " 
 
 359. It is no objection to a bill for an injunction to restrain a nuisance that 
 complainants are nineteen separate owners of residences injured. Robinson v. 
 Baugh, N. S. xiv. 586. 
 
 360. A trial at law is not a pre-requisite to a bill in equity to restrain a nui- 
 sance. Id. 
 
 361. Other creditors may come in as parties to creditor's bill. Miiers v. Fenn. 
 N. S. vii. 59. 
 
 EQUITABLE ASSIGNMENTS, of future acquisitions. Subject discussed. N. S. 
 ii. 527. 
 
 EQUITABLE ELECTION. See Election. 
 
 1. The doctrine of equitable election is grounded upon the ascertained inten- 
 tion of the testator. Van Dyke v. Van Diike, N. S. viii. 462. 
 
 2. Equitable election rests upon the principle of compensation. Id. 
 
 EQUITABLE TRANSFER. 
 
 It is sufficient, if any notice of the assijjnment comes to the debtor ; the 
 assignment works an equitable transfer of the debt. Momrii, Assignee, v. Crocker, 
 O. S. vi. 737. 
 
 ERROR. 
 
 1. The exception being to the whole charge, and some part of the charge being 
 correct, the exception is unavailing. Hunt v. Miiijbee, 0. S. i. 181. 
 
 2. When there is no dispute about the facts, the question whether due diligence 
 has been used in seeking the residence of the indorser, is a question for the court 
 and not the jury. Id. 
 
 3. In a proper case ; a cause may be heard on error or appeal in a different 
 diarict from that in which it originated. Hazen v. Commonwealth, 0. S. ii. 554. 
 
 4. After conviction of misdemeanor the attorney-general's fiat for a writ of 
 error, where probable cause is shown, ought to be granted ex dihito justitice , but 
 it is in the discretion of the attorney-general to grant or withhold his fiat, and 
 the court will not interfere after he has exercised his discretion, and refused to 
 grant his fiat. R. v. Newton, O. S. iv. 125. 
 
 5. The erroneous instruction of the court in regard to the effect of a deed is no 
 ground of reversal, if the plaintiff had no title on which the jury could find in 
 his favor. Dreery v. Cray, N. S. x. 66. 
 
 6. A party against whom no judgment has been rendered or final order made, 
 has no ground for a writ of error. Burton v. Boyd, N. S. x. 534. 
 
 7. A court of error will not reverse unless the jury have been misled by the 
 instruction of the court below. Id. 
 
 8. A court of error will not reverse for refusal to grant a new trial. Pacific 
 R'ulroad Co. Y. Nash, N. S. x. 535. 
 
 9. Where the gist of the action is negligence it is not error to admit testimony 
 of all facts showing the degree of.care necessary. Id. 
 
 I ). The Supreme Court will reverse where the court below has violated or dis- 
 regarded its own rules. Brennan's Estate, N. S. x. 535. 
 
 H. In an equity action, a court of error will not reverse on account of the 
 admission of improper evidence if such evidence could not have changed the 
 result. King v. Whaley, N. S. x. 536. 
 
 12. A reviewing court will not set aside the finding of a court made without a 
 jury, where it is in accordance with the preponderance of the evidence. Carson 
 V. Kerr, N. S. x. 602. 
 
 13. Where a special jurisdiction is conferred by statute in an inferior court, 
 no appeal lies to the Supreme Court, unless where expressly given ; but the reg- 
 ularity of the proceeding may be examined. Campbell v. Schuylkill Co., 0. S. 
 
 '■ *^^- . . ■ A^. 
 
 14. Judgment of court below is afiirmed when errors assigned not sustamea Dy 
 
 a majority of Supreme Court. Luughlin v. Harvey, N. S. vi. 637. 
 26 
 
402 ERROR. 
 
 15. Testimony erroneously received which may have influenced the finding of 
 the verdict, cannot be considered an immaterial error. Gilliland el al. v. Schuy- 
 ler, N. S. xii. 54. 
 
 16. No appeal lies to the Supreme Court of the tfnited States from the deci- 
 sion of a state court, made according to its settled rules of general jurisprudence, 
 although such rules have been made an article of the constitution. Bank of West 
 Tennessee v. Citizens' Bank of Louisiana, N. S. xii, 120. 
 
 17. After judgment, obtained on a note for the price of a slave, there was a 
 clause inserted in the constitution of Louisiana, " that no amount should be re- 
 covered on a judgment rendered on such an obligation." No appeal lies to the 
 Supreme Court of the United States for a refusal of the state court to enjoin the 
 collection of the judgment. Sevier v. Haskill, N. S. xii. 120. 
 
 18. The Supreme Court will not entertain jurisdiction of cases brought from 
 state courts, if it appears that besides the Federal question decided, there is an- 
 other ground on which the judgment may be sustained. Kennebec Railroad Co. 
 V. Portland Railroad Co., N. S. xii. 120. 
 
 19. A court of error will affirm a judgment which was erroneous when given, 
 if owing to a change of statutory law it would now be right. Pugh v. McCor- 
 mick, N. S. xii. IHO. 
 
 20. An instruction that the defendant must make out a broader defence than is 
 averred in the plea is erroneous. Stowell v. Beagle, N. S. xii. 263. 
 
 21. It is error to instruct the jury, that if from want of evidence, they could 
 not determine the affirmative or negative, they must so answer. The jury must 
 determine or disagree. Maxwells. Boyne, N. S. xii. .325. 
 
 22. The admission of illegal testimony, by a referee, will not warrant a rever- 
 sal of his decision, if there is sufficient to sustain his decision without it. Fdbbrl 
 el al.. V. Mercantile Mutual Ins. Co., N. S. xii. 403. 
 
 23. On an appeal from a judgment awarding a peremptory mandamus, if it 
 appears that the relator is now entitled to the writ, the judgment will be affirmed. 
 Slate ex rel. Voight v. Hoefiingcr, N. S. xii. 469. 
 
 24. An erroneous instruction which could not have prejudiced the defendant is 
 no ground for reversal, huke v. Johnnycahe, N. S. xii. .532. 
 
 25. The court will not reverse because the verdict seems against the weight of 
 the evidence. Id. 
 
 26. A criminal case must be removed from the District Court to the Supreme 
 Court of Kansas on appeal and not on petition of error. Boyle v. Stale of Kansas, 
 N. S. xii. 595. 
 
 27. A question not raised by the record will not bo considered by the Supreme 
 Court. Id. 
 
 28. Where the execution of a written instrument is admitted by the pleading.'!, 
 a court of error will not reverse because evidence in proof of such instrument 
 was wrongly excluded. Reed v. Arnold, N. S. xii. 595. 
 
 29. It is error for the court to have any communication with the jury after a 
 case has been submitted to them, and while they have it under consideration, ex- 
 cept in open court. Slate v. Patterson, N. S. xii. 647. 
 
 30. It is also error for the court to furnish the jury a copy of the statutes of 
 the state while they are out of court deliberating upon their verdict, that they 
 may read certain provisions, designated by the court, touching the case under 
 consideration. Id. 
 
 31. A charge in an action for negligence, that negligence on the part of the 
 plaintiff must be affirmatively disproved, is erroneous. Robinson v. N. Y. C, 
 Railroad, N, S. xii. 664. 
 
 32. Where the record shows that only a portion of the evidence is preserved, 
 a court of eri^or is unable to say that an instruction was inapplicable or erroneous. 
 GaJJobeo v. Mitchell, N. S. xii. 730. 
 
 33. The refusal to withdraw a juror is in the sole discretion of the court, and 
 not reviewable on error. Thompson v. Stevens, N. S. xii. 730. 
 
 34. An entire case cannot be carried up by proceedings in error, but only par- 
 ticular errors in the rulings of the court. Capen v. Peckliam, N. S. ix. 136. 
 
 35. Where, however, the question was whether several articles annexed to the 
 freehold were a part of the realty or were personal property, and the court below 
 in a bill of exceptions stated the facts with regard to each, and its decision as to 
 its character, it was held, that the decision as to each could be reviewed on a writ 
 of error. Id, 
 
EEROK. 403 
 
 36. It is error, entitling the aggriered party to a reversal, for a court, on 
 motion of a plaintiff, to strike out of an answer that which constitutes a good 
 defence, and on which the defendant may chiefly rely. Mandetbaum v. Ptople, 
 N. S. ix. 194. 
 
 37. A writ of error to the Supreme Court cannot be sustained in the name of 
 a steamboat. Steaviboat Butus, N. S. ix. 441. 
 
 38. A writ of error lies to the judgment of a state court in certain cases, 
 though it may not be actually the highest court of law or equity in the state. 
 Duwnham v. Alexandria, N. S. ix. 582. 
 
 39. No writ of error to a state court can issue without allowance by the proper 
 judge. Gleaaon v. Fi-oridn, N. S. ix. 582. 
 
 40. Where the causes of action are separate and divisible, and the declaration 
 single, it woulil be error to suffer the plaintiff after having given evidence of 
 one, to prove another. Hodge, v. Town of Bennington, N. S. xi. 49. 
 
 41. Where the issues are distinct, and the verdict is on the material one, evi- 
 dence improperly admitted on the other is not error, and is no ground for 
 reversal. Id, 
 
 42. Where a plaintiff sues for damages for insufficiency of a highway, whereby 
 the axle of his wagon was broken, and his horse killed, it is not error in the 
 court to instruct the jury that he was bound to use sueli care as a prudent man 
 would, and if the want of such care in any degree contributed to the accident he 
 could not recover. Id. 
 
 43. Where a plaintiff in error claimed in the court below that he was entitled 
 to have a note held by him made by the defendant in error paid in gold or silver 
 coin under the constitution, upon a proper construction of various clauses of 
 th.ll instrument, and the decision of the court below was against the right 
 thus claimed, the Supreme Court of the United States has appellate jurisdic- 
 tion under the 25th sect, of the Judiciary Act of 1789, or the 2d sect, of the 
 Amendatory Judiciary Act of 1867, to review the decision. The case of Roose- 
 velt v. Meyer, 1 Wall. 512, overruled. Trebilcock v. Wilson, N. S. xi. 151. 
 
 44. The refusal to permit a question asked on cross-examination to be 
 answered, is no ground for reversal, where it could not have prejudiced the losing 
 party. Missouri River Railroad Co. v. RicJiards, N. S. xi. 328. 
 
 45. No appeal lies from an order refusing to sign a bill of exceptions, March 
 V. Hand, N. S. xi. 532. 
 
 46. As a general rule, the party holding the affirmative of the issues has the 
 right to open and conclude the argument to the jury ; but such practice being 
 within the discretion of the court, the refusal to give the defendant the conclusion 
 will be no cause for reversal of the judgment. Reidiard v. The Manhattan Life 
 Ininrance Co., N. S. i. 547. 
 
 47. No exception lies to the decision of a judge of the superior court upon 
 the question whether a deposition which has been read in evidence in a trial shall 
 be delivered to the jury when they retire to consider of their verdict. Whitehead 
 V. Kej/es, N. S. i. 471. 
 
 48. A verdict will not be set aside for inconsistent charges to the jury, if all 
 those excepted to by the complaining party are correct. Niagara Insurance Co. 
 V. Graff, N. S. iii. 489. 
 
 49. Where proof of payment is erroneously rejected, the remission of the 
 amount after verdict will not cnre the error. Hanson v. Olcoft, N. S. iii. 765. 
 
 50. Where a question put to his own witness was improperly overruled, the 
 error was not cured by the party afterwards obtaining an answer to the same 
 question on the cross-examination of a witness of the opposite party. Flanagan 
 V. Lampman, N. S. iii. 183. 
 
 51. Judgment on a verdict of guilty on one count, will not be reversed for 
 want of finding of the jury on another count. Edgerton v. Commonwealth, N. S. 
 ill. 62. 
 
 52. Supreme Court will only notice apparent errors, where no exceptions are 
 saved in lower court. Mason v. Barnard, N. S. v. 444. 
 
 53. Judgment free from error will not be reversed, because jnrv may have 
 drawn inferences from refusal of witness to answer on account of privilege. 
 Murphy v. Tripp, N. S. v. 512. 
 
 54. Where the jury decide a fact erroneously it must be corrected by appeal, 
 and cannot be reviewed in a second suit between the same parties. Marcellus v. 
 Countrymen, N. S. xiii. 58. 
 
404 ERROR. 
 
 55. A charge that, if defendant " in the neat of hlood and upon sufficient 
 provocation," threw deceased down stairs, the offence was manslaughter, is not 
 erroneous, where subsequent instructions showed "sufficient" was used as 
 equivalent to " great and sudden." State v. Murphy, N. S. xiii. 123. 
 
 56. An appeal lies to an order refusing to strike an amended complaint from 
 the files. Supervisors of Kewaunee v. Decker, N. S. xiii. 647. 
 
 57. It is error to refuse to charge " that the jury are not to allow any feeling 
 of sympathy for tlie plaintff to influence the verdict." Fulsome v. Town of Con- 
 cord, N. S. xiii. 714. 
 
 58. The judgment of the criminal court of Baltimore, on an appeal from the 
 commissioners for opening a street, is final and conclusive. Rundle v. Baltimore, 
 N. S. viii. 313. 
 
 !>9. An appeal or writ of error which does not bring to the Supreme Court a 
 transcript of the record before the expiration of the term to which it is returnable, 
 is no longer a valid appeal or writ. Edmonson v. Bloomshire, N. S. viii. 255. 
 
 60. It is not error to charge " that if there is a well-reasoned doubt on the 
 whole testimony," good character should protect the prisoner. Eemsen v. The Peo- 
 ple, N. S. X. 126. 
 
 61. It is an error to permit the defendant to prove the " disloyalty" of the plain- 
 tiff, in an action of trespass for taking goods. Hart v. Reynolds, N. S. x. 200. 
 
 62. On the hearing of a habeas corpus it is error for a judge to refuse to receive 
 a pardon from the governor as a ground of discharge. Dominick v. Bowdoin, N. 
 S. xi. 335. 
 
 63. A party will be confined in a court of error to the specific grounds of excep- 
 tion made in the court below. Button v. Driygs, N. S, xiv. 195. 
 
 64. A mere objection to testimony without assigning any ground of exception 
 is of no avail. Jd, 
 
 65. It is not error to omit instructin the jm-y on the subject of manslaughter. 
 Brown V. Commonwealth, N. S. xiv. 582. 
 
 66. It is not error to omit instructing the jury that on indictment for murder, 
 there may be conviction for manslaughter. Id, 
 
 67. A court having once stated the law correctly in its charge, it is not error 
 to refuse a restatement. Gillet v. Corum, N. S. x. 402. 
 
 68. It is not error for court to charge that the jury would be justified in giving 
 compensation not only for damages plaintiff had already sustained, but for future 
 damages. Passenger Railway Co. v. Donahue, N. S. xii. 405. 
 
 69. Where the error alleged is in arresting judgment. Aaronson v. C. Sf P. 
 Railroad Co., N. S. xii. 406. 
 
 70. It is erroneous to charge the jury that a child, who is not sui juris, is 
 bound to exercise the same degree of caution in crossing a track as an adult. 
 Costello V. S. Sr B. Railroad Co., N. S. xii. 666. 
 
 71. The fact that no transcript of the record was filed at the next term to that 
 when a decree appealed from was made is, in general, fatal to the appeal. The 
 Lucy, N. S. ix. 200. 
 
 72. The law provides but two modes in correcting errors in legal proceedings, 
 by motion and appeal. Libhy v. Rosecrans, N. S. ix. 324. 
 
 73. A statement of a defendant on trial for a crime, when he chooses to make 
 one, may be considered by tlie jury, in view of all the circumstances that may 
 affect his credit ; and where such defendant states that all the allegations of the 
 prosecution are untrue, though not specifically denying the crime, it is error for 
 the jutlge to charge that defendant did not directly deny the assault. Defoe v. 
 The People, N. S. xi. 525. 
 
 74. The admission of parol evidence to contradict a note and prove conditions 
 not therein expressed is error. Lester v. Fowler,'S. S. xi. 331. 
 
 75. An order appointing a receiver to take charge of the property held by a 
 surviving partner, is an order divesting the legal estate of such partner. Barry 
 V. Briggs, N. S. xi. 536. 
 
 76. Decree not reversed for irregularity in language of decision where it is 
 obvious no error has been committed. ' Sturgis v. Clough, N. S. iii. 629. 
 
 77. .ludgment of Oyer and Terminer, review in courts of appeal. Bartungv. 
 The People, N. S. iii. 500. 
 
 78. Supremo Court will not give an answer to a merely abstract proposition. 
 Havemeyer v. fnwa Co., N, S. v. 566. 
 
 79. Appellate jiirisdicfinn of Pennsylvania Supreme Court in capital cases. 
 Hopkins V. Commonwealth, N. S. v. 444. 
 
ERROR. 405 
 
 80. An appeal in admiralty from the District Coart in eflfect institutes the 
 matter de novo in the Circuit Courts. The Lucille, N. S. xiii. 587. 
 
 SI. An order merely affirming tlie decree of the District Court is not such as 
 the Circuit Court should make, and no appeal lies to Supreme Court. Id. 
 
 82. It is not error to permit the defendant to state the differences between 
 himself and the plaintiff. McCord v. McSpaden, N. S. xiii. 704. 
 
 83. The refusal of the court in a criminal case to charge that the evidence 
 must satisfy the jury beyond a reasonable doubt of every fact necessary to con- 
 stitute the offence, is error. Walher v. State, K. S. xiii. 454-. 
 
 84. In a suit by vendee on a contract for the sale of goods, it is error to allow 
 evidence of the highest market price between the time of sale and bringing suit. 
 Chadwick v. Butlers, N. S. xiii. 455. 
 
 85. When it is expressly provided- that over-valuation shall make the policy 
 void, it is error in the court to submit the question of over- valuation as one of 
 fraud or good faith, as the question is one of fact, and not intention. American 
 Life Ins. Co. V. Gilbert, N. S. xiii. 460. 
 
 86. Where an issue of fact not raised by the pleadings was distinctly sub- 
 mitted to the jury without objection, the admission of any proper evidence of 
 such fact is not error. McCord v. McSpaden, N. S. xiii, 705. , 
 
 87. A final order in a proceeding for contempt is appealable. Matter of 
 Dili), on Complaint of Benson, N. S. xiii. 782. 
 
 88. A writ of error lies from the Supreme Court of the United States to the 
 decision of a state court against a right, privilege, or immunity claimed under 
 the constitution. The Bank-i v. Miyor, N. S. viii. 447. 
 
 89. Error will lie from the Supreme Court of the United States to the highest 
 court of a state. State of 3[inneiota v. Batchelder, N. S. iv. 55. 
 
 90. An appellant from the highest court of a state to the Supreme Court of the 
 United States need not set forth specially the clause of the United States Consti- 
 tuion on which he relies. Bridge Proprietors v. Hoboken County, N. S. iv. 55. 
 
 91. The decision in tlie first action having originally been that it be dismissed. 
 Audubon v. Insurance Co., N. S. iv. 182. 
 
 92. Where there is nothing in the testimony to show that the prosecutor in a 
 criminal case behaved improperly, the cjurt may set aside so much of the verdict 
 as directs him to pay the costs, without disturbing the verdict of acquittal ; and 
 such decision is not the subject of a writ of error. Guffi/ v. Commonwealth, O. 
 S. ii. 242. 
 
 93. No exception lies to the decision of a judge of the Superior Court upon 
 the question whether a deposition which has been read in evidence in a trial shall 
 be delivered to the jury when they retire to consider of their verdict. Whitehead 
 Y. rOi/"s. N. S. i. 471. 
 
 94. Where there is no count on a contract to keep as bailee, it is error to 
 charge that defendant is liable unless he took such care of the logs as a prudent 
 man would of his property. Sntterlee v. Mehch, N. S. xiv. 579. 
 
 95. Eifect of affirmation by Supreme Court of the decree of the District Court 
 and reversal of decree of Circuit Court reversing the District Court after the fund 
 had been distributed. Conrad's Lots, N. S. xiv. 117. 
 
 96. There is no error in refusing to charge, " that the conveyance of the whole 
 of debtor's property is a violent presumption of fraud." Bigelow v. DooliUle, N. 
 S. xiv. 252. 
 
 97. An instruction that the jury may infer a promise of marriage from evidence 
 of the conduct of the parties, is error. Walmdey v. Bobinson, N. S. xiv. 55. 
 
 98. Refusal to charge that because plaintiff had often driven over the road, it 
 was carelessness for him to upset, was not error. Durgin v. Town of Danville, 
 N. S. xiv. 756. 
 
 99. An instruction that plaintiff should be awarded, in an action for breach of 
 promise of marriage, such damages as would place her in as good a condition 
 pecuniarily as if the promise had been fulfilled, is error. Miller v. Rosier, N. S. 
 xiv. 700. 
 
 100. An instruction that defendant is liable for his neeligence unless plaintiff 
 was equally guilty of negligence, is error. Johnson v. Tillson, N. S. xiv. 59. 
 
 101. It was error to instruct jury, that if the car loaded with timber that hurt 
 plaintiff, was loaded as other cars on defendants' and other railroads, it was not 
 nesrlisrence. fjnmilton v. Rnlrond Co.. N. S. xiv. 68. 
 
 102. If the points of plaintifl' in error were answered by court below with 
 
406 EEROE— ESTATE FOR LIFE. 
 
 sufficient distinctness in connection with the general charge, there is no gionnd 
 for reversal. Pierce v. Cloud, N. S. ii. 446. 
 
 103. Where the evidence seemed equally balanced, the presumption is that the 
 court below carried out the intention of the testator. Wagner's Appeal, N. S. 
 ii. 634. 
 
 104. Opinion of the judge as to amount of damages not error. O-wald v. 
 Kennedy, N. S. iv. 638. 
 
 105. Refusal of court to open judgment on trial of scire facias to revive, not 
 reviewable. Henry v. Brothers, N. S. iv. 638. 
 
 ESCAPE. 
 
 1. Recovery against sheriff for an escape. Matter of Chamberlain, N. S. iv. 
 318. 
 
 2. If the defendant in a bastardy suit escapes, and judgment is recovered 
 against the sheriff for the escape, he cannot be retaken. Ex parte Vohz, N. S. 
 xii. 660. 
 
 3. Indulgence permitted to a person committed to jail on final process, of 
 going outside, constitutes a voluntary escape. Itiley v. Whittiker, N. S. ix. 
 714. 
 
 4. An officer is not bound to call for aid in the service of mesne process, and 
 is not liable for an escape that might have been prevented by his calling for aid. 
 Whitehead v. Keyes, N. S. i. 471. 
 
 5. In an action against a sheriff for an escape suffered by his deputy, the re- 
 turn of a rescue upon the writ is not conclusive evidence in favor of the defend- 
 ant. Id. 
 
 6. A sheriff is liable for the escape of a prisoner, unless through the act of 
 God, or of a public enemy, or through an act of the law. Wilckens v. Wilkt, 
 N. S. iv. 404. 
 
 7. It will be sufficient defence to show that such prisoner was taken from his 
 custody and retained by the sergeant-at-arms of the House of Representatives. 
 Id. 
 
 8. The proceeding on such warrant is an act of the law. Id. 
 
 9. It seems that if the prisoner had left the jail liberties in obedience to the 
 subpoena, and had not been arrested on a warrant to answer for an alleged con- 
 tempt, the sheriff would have been liable. Id. 
 
 ESTATE BY ENTIRETIES. 
 
 Estate by entireties is not destroyed by the Acts of New York, allowing 
 married women to hold their property separate. F. ^ M. Bank v. Gregory, N. 
 S. vii. 121. 
 
 ESTATE FOR LIFE. 
 
 1. Where tenant-in-common for life mortgaged his interest in land, and other 
 tenants said to mortgagee that they would not object to his cutting timber on 
 mortgagor's share, such tenants are not estopped by such declarations after death 
 of mortgagor. Wood v. Griffin, N. S. v. 703. 
 
 2. Entry by such mortgagee claiming the entire title is an ouster of the other 
 tenants. Id. 
 
 3. Where the use and occupancy of land was devised to one daring his natural 
 life, and a creditor levied upon his estate, and had it set off by appraisal of his 
 whole interest, the levy was good. McClure v. Melimdy, N. S. iii. 126, 
 
 4. Courts are astute in finding exceptions to the rule that a devise of lands 
 without words of limitations confers a life estate only, ICnq v. Ackerman, N. S. 
 iii. 50. 
 
 5. Devise of " goods, chattels, rights and credits and effects" does not pass 
 realty. Broion v. Furman, N. S. iii. 633. 
 
 6. Where a testator divided the residue of his estate between his brother W., 
 his sister H.'s children and the daughter of his brother J,, it was held that the 
 legatees were to take per capita. Lee, Executor, v. Lee, N. S. iii. 59. 
 
 7. Where to a devise of land without words of limitation a provision is added 
 that the devisee may do therewith as he pleases or he is directed to pay debts or 
 sum in gross he takes a fee. King v. Acherman, N. S. iii. 50. 
 
 8. A court may look beyond a will to explain an ambiguity as to the person 
 or property, but not to enlarge an estate. Id. 
 
 9. Deed conveying premises accompanied with a proviso that whereas the 
 grantor intends to flow part of the premises and that the grantee shall have the 
 
ESTATE FOR LIFE— ESTATE TAIL. 407 
 
 right to improve and cultivate the rest, a life estate only is excepted. Aqueduct 
 Co. V. Cluwdler, N. S. v. I8G. •■ , ■ 
 
 10. Where devises were made for life with remainder over as to whether the 
 (rifts were original or substitutionary and effect thereof. See Lamphier v. Buck- 
 's. S. V. 224 ; In re Turner, N. S. v. 234. "' 
 
 11. In New York, when land is granted to A. for life and then to his heirs, 
 the persons who, at the termination of the life estate, are the heirs of A., take 
 as purchasers and not by descent. Moore v. Littel, N. S. iii. 144. 
 
 12. The remainder so limited is contingent, and the lieirs apparent of the 
 tenant for life have a future contingent estate, which, under the statute of New 
 York, will pass by their grant of the land in fee. Id. 
 
 1-3. The child of an heir apparent whose mother dies before her ancestor, wiil 
 not in such case be estopped by covenants of warranty in her mother's deed. U. 
 
 14. Tenant for life of personal property may be compelled in equity to give 
 security to remainder-men. Lewcy v. Lewei/, N. S. iv. 120. 
 
 ESTATE ON CONDITION. 
 
 Land granted for certain use, to revert to grantor if used for other purposes, 
 
 does not revert until actual abandonment. Pcnna. Railroad Co. v. Parke et al 
 
 N. S. ii. "502. 
 ESTATES. 
 
 1. Restraints upon the alienation and enjoyment of estates — subject discussed 
 N. S. ix. 394, 457, 522. 
 
 2. Contingent estates and interests are assignable in equity. P., W. ^ B. 
 Bailroad v. Woelpper, N. S. x. 411. 
 
 3. Tlie creation and failure of an intermediate trust estate will not defeat an 
 ultimate remainder in fee limited upon two lives in being. King v. Wlialey, N. 
 S. X. 5-33. 
 
 4. Words of inheritance or limitation are not essential to create an estate in 
 fee. Hawkins v. Chapman, N. S. ii. 57. 
 
 5. A settlement in trust for one, without words of limitation, and if he should 
 die without issue then over, passes only a life estate, notwithstanding a subsequent 
 will by the settlor confirming the settlement. Middleton v. Barker, N. S. xiii. 589. 
 
 ESTATE TAIL. 
 
 1. A testator, by will, directed his executors to account for and pay over, half 
 yearly, to his tiiree daughters, "and to each of them during their natural lives, 
 the income or profit arising out of each of their share of the residue, and after 
 the death of either, then to descend and go to the child, and if children, share 
 and share alike ; should, however, either of my daughters die, and leave no 
 lawful issue, then such share or portion is to fall back again to the residue, and 
 form a part of the same." Held, that the daughters took an estate tail in tlio 
 residue of the testator's estate, which, under the Act of April 27th 1855, became 
 an estate in fee simple. Haldeman v. Huldemun, N. S. i. 443. 
 
 2. A. made a deed by which he granted certain lands to his daughter B. " during 
 her lifetime, and to her eldest son, which shall be living at her decease, and to 
 his eldest son at his decease, and so on from eldest son to eldest son to the latent 
 generation," habendum to B. "and to her Iieirs as aforesaid." This deed ho 
 never delivered, but after his death it was found in his papers and delivered by 
 his administrator to B., who went into possession under it, and afterwards made 
 a deed in fee for the same premises to C. who held by himself a!nd his grantees 
 iu fee for thirty-.six years. Held, — 
 
 (1.) That B. took a life estate only. 
 
 (2.) Tliat her eldest son living at lier decease took a fee tail directly from the 
 original grantor. 
 
 (3.) That the only title B. took and conveyed, and C. took and held under B., 
 was under color of the deed from A., and therefore both B. and C. and the sub- 
 sequent purchasers under them were estopped from disputing the validity of A.'s 
 deed, because it was not delivered in the lifetime of the grantor. 
 
 (4.> That C. took with notice of the title of B.'s eldest son, and his possession 
 was not adverse so long as B. lived. 
 
 (5.) That the deed from A. to B., being on record, was notice to all subse- 
 quent purchasers of the extent of B.'s title. Ford v. Flint et al., N. S. vii. 296. 
 
 3. Testatrix devised all her real estate to trustees upon trust for three persons for 
 lite, with remainder to their issue in tail, " and for default of such issue, then 
 
408 ESTATE TAIL— ESTOPPEL. 
 
 upon trust for the right heirs of my grandfather, Sir T. S., Bart., deceased, by 
 Mary, his second wife, also deceased, for ever." It was held, by the House of 
 Lords, affirming the decision of Vice-Chancellor Kindeksley, that the ultimate 
 limitation created an estate tail special and not a fee simple. Vernon v. Wright, 
 0. S. vii. 567. 
 
 4. Lord Coke's opinion (Co. Litt. 10 a.) has never been overruled. See 
 Thorp V. Owen, 0. S. iii. 2.56. , 
 
 5. Descent of, in Pennsylvania — remarks npon some recent Pennsylvania 
 cases. 0. S. vii. 66. 
 
 6. In Massachusetts, created by a devise to one, and the heirs of his body, 
 " and to their heirs and assigns for ever," and descends to the oldest son. 
 Wright V. Thayer, 0. S. iii. 59. 
 
 7. How created. See Guthrie's Appeal, 0. S. ix. 354, and cases there cited. 
 
 8. Devise to one for life and remainder to his issue. Import of words " die 
 without issue," " for want of issue," "on failure of issue." Kai/ v. Scales, 0. 
 S. ix. 285. 
 
 9. Words creating an estate tail. lie Turner, N. S. v. 234. 
 
 10. The distinction between cases of independent and substitutionary gifts to 
 the issue of a class of children — subject discussed. Note to Id, 238. 
 
 1 1 . To bar an estate tail by a common recovery, it is necessary that the tenant 
 to the prsBcipe should, either at the time the writ issued, or before judgment 
 given, have an estate of freehold in possession, either by right or by wrong, in 
 the lands demanded by the writ. Richman v. Lippincott, 0. S. ix. 369. 
 
 12. A tenant in tail by deed of bargain and sale, with covenants of warranty 
 and further assurance, conveyed to two, giving at the same time a bond in 'a 
 penal sum, conditioned to be void if ho should suffer a common recovery of the 
 lands conveyed. The grantees divided between them the lands, and one of them 
 conveyed to a third person. After the conveyance by one of the grantees, the 
 tenant in tail executed a deed tripartite with B. as the tenant to the prajcipe. and 
 C, as the recoverer, reciting that the lands had been reconveyed to him by his 
 grantees ; a recovery was then suffered, and after judgment, he who was the 
 tenant In tail reconveyed to his former grantees in fee simple — held, there was 
 no such outstanding estate in the grantee of the grantees from the tenant in tail 
 as to render it necessary that his estate should have been surrendered to enable 
 the tenant in tail to constitute a good tenant to the praecipe. Id. 
 
 13. The deed from the tenant in tail to his grantees was merely a deed to lead 
 the uses ; the recovery was in pursuance of it, and it would, therefore, seem 
 that there was no surrender necessary from the grantees of the tenant in tail. IJ. 
 
 14. After a lapse of more than forty years, the recital in the deed creating 
 the tenant to the praecipe of possession by one of the grantees of the tenant in 
 tail, who reconveyed for the purpose of obtaining a common recovery, is suffi- 
 cient to raise the presumption of a surrender by the grantee of him so alleged 
 to have been in possession, and therefore to enable the tenant in tail to make a 
 good tenant to the prascipo. Id. 
 
 ESTOPPEL. 
 
 1. A city is not estopped from claiming land which it owns by the wrongful 
 act of its assessors in taxing it to a person who had no title to or possession of 
 the same, or by a collector's sale for non-payment of such tax. Rossire v. Citg 
 of Boston, N. S. i. 690. 
 
 2. Declarations made publicly and on record of the existence of a debt, estop 
 those making them from afterwards denying. Calcote v. Stanton, 0. S. iii. 49. 
 
 3. A false certificate of stock contains no representation or admission wliich 
 any third party may accept as addressed to himself and intended to influence his 
 conduct, and therefore the doctrine of estoppel does not apply. Bank v. Railroad 
 Co., O. S. iv. 718. 
 
 4. Admissions which have been acted on by others are conclusive against the 
 pnrty making therii in all cases between him and the person whose conduct he has 
 thus influenced. In such cases the party is estopped, on grounds of public policy 
 and good faith, from repudiating his own misrepresentation, Tompkins v. Philips, 
 O. S. ii. 318. 
 
 5. How far operates on covenants of warranty. See Blanchard v. Ellis, 0. S. 
 iii. 59.. 
 
 6. A defendant who expressly or impliedly assents by his pleadings to the exe- 
 
ESTOPPEL. 409 
 
 cution of a contract set out in the bill, cannot retract such assent. Cronk v. 
 Trundle, N. S. xir. 583. 
 
 7. Askinj; one if he had any claim to land, without stating an intention of 
 buying, ami being told that he had a claim, but it did not amount to much, will 
 not estop the claimant from asserting his claim if tlie otlior purchases. Keatina 
 V. Ornf,, IS. S. xiv. 755. 
 
 8. The statement that there was a claim should have put the party on inquiry. 
 Id. 
 
 9. Whether an estoppel results from established facts is for the court to decide. 
 
 n. 
 
 10. An estoppel operates to hold one to facts as he alleges them. 7c?. 
 
 H. Where judgment-creditors see a purchaser of land at its full value pro- 
 ceed to erect buildings on the land sold by tlieir debtor, and silently acquiesce, 
 they will be restrained from issuing execution against the buildings. DalUtte 
 V. Kemble, N. S. xii, 56. 
 
 12. Where a grantor by conveyance with warranty, acquires a subsequent 
 title, it will enure to the grantee by estoppel. Trfft v. Munson, N. S. xii. 57. 
 
 13. A grant by conveyance only, passes simply the interest which the grantor 
 had. Id. 
 
 14. A party is not estopped by his acts from showing the truth, unless he 
 intended to influence the conduct of another by such acts. Knhl v. Mayor of 
 Jerscfi City. N. S. xii. 190. 
 
 15. A receiptfor taxes given on receiving a check, does not estop the collector 
 from showing that the check was unpaid. Jd, 
 
 16. A party who assists in the sale of property, will be estopped from setting 
 up a secret equitable title in himself against the purchaser. Winchell v. Edwards, 
 N. S. xii. 255. 
 
 17. Where the complaint of the plaintiff alleges that the defendant claims to 
 have sold the note to a third party, whom the plaintiff makes defendant, and 
 such party files an answer, the plaintiff on demurrer is estopped from denying 
 that he is a proper party defendant. GokUhw:iil v. Bradford, N. S. xii. 319. 
 
 IS. A party may be estopped as well by an act of gross negligence as of bad 
 faith, in permitting a purchaser to buy in ignorance of his claim. Stevens v. 
 Dennett, N. S. xii. 323. 
 
 19. Admissions which would operate as an estoppel, are not inoperative bo- 
 cause made on Sunday. Riley v. Butler, N. S. xii. 327. 
 
 20. One who relies ou an estoppel must act in good faith. Bernstine v. Smith, 
 N. S. xii. 532. 
 
 21. Parties who stand by and see a street paved wdiich is a benefit to their 
 property, will be estopped from questioninir the right of the city to do it. The 
 People ex rel. Curtis v. Comirun C)uncil of Ulic.i, N. S. xii. 658. 
 
 22. Requisite to create estoppel in pais. Andrcvx v. Lyons, N. S. vi. 120. 
 
 23. When admission of signature to be genuine will estop defendant from 
 deiving same. Bank v. Keene, N. S. vi. 249. 
 
 2 1. One will be barred by adoption of signature if made with knowledge of 
 its forgery. Id. 
 
 25. Rule of damages upon note, in such cises. Id. 
 
 26. A partv claiming an estoppel must show that he has relied on some act or 
 incurred some liability which would make it a fraud upon him to have the truth 
 shown. OmHngho'ise v. Whitwdl, N. S. viii. 60. 
 
 27. The plaintiff in an action for malicious prosecution is not estopped from 
 showing want of probable cause, because he paid part of the sum claimed in the 
 original cause. Morton v. Young, N. S. viii. 187. 
 
 28. A judgment, to operate as an estoppel, must be upon the same subject- 
 matter and between the same parties. McKinzie v. B. S/- 0. Railroad Co., N. S. 
 viii. 251. 
 
 29. Is never to be applied, except where to allow the truth to be told would 
 consummate a wrong. Franklin v. Merida, N. S. viii. 506. 
 
 30. The owner of good? representing them as belonging to another, is estopped 
 on an attachment from showing that the representation was false. Sorn v. Cole, 
 N. S. viii. 570. 
 
 31. A woman will be estopped from claiming dower in land she. encouraged 
 another to purchase by stilting she had no claim thereon. Malony v. Iloran, N. 
 S. viii. 571. 
 
410 ESTOPPEL. 
 
 32. "Whenever an net is done or a statement made by a party which cannot be 
 contradicted or contravened without fraud on his part and injury to others whose 
 conduct has been influenced by tlie act or admission, the character of an estoppel 
 will attach to what would otherwise be mere evidence. State v. Pepper, N. S. 
 viii. 665. 
 
 33. A surety signing and delivering to the principal obligor for delivery to 
 the obligee a bond, before the names of the sureties have been inserted in tlie 
 body of the instrument, will be held as agreeing that the blank for such names 
 may be filled after he has executed it. Id, 
 
 34. A surety signed a sheriff's official bond after the signatures of other 
 sureties, without reading it, or hearing it read, or asking what it was, on beiii^ 
 told by the principal that it was a county paper and requested by him to sign it. 
 liehl, that such surety was not released by the fact that one of the signatures 
 before his was forged. Id. 
 
 35. The judgment of a coiirt of competent jurisdiction is nn estoppel as to all 
 matters put in issue by the pleadings. Jackson v. Lodge, N. S. viii. 697. 
 
 36. One led by silence ignorantly and innocently to rest on liis title, believing 
 it secure, and to expend money and make improvements, without timely warning, 
 will be protected by estoppel. Chapman v. Chapman, N. S. viii. 756. 
 
 37. Estoppel may operate as a defence in ejectment. CorKhill v. Sanders, N. 
 S. V. 508. 
 
 38. Where the parties to a deed signed in blank, have acquiesced for two and a 
 half years in the possession of a party who bon3, fide purchased land under it, 
 they will be estopped from claiming on account of the irregularity. Knaggs v. 
 Mastin, N. S. xi. 774. 
 
 39. Erroneous information given by holder of security as to the title of a 
 debtor in the property, will not work an estoppel in pais, unless he intended to 
 deceive the creditor seeking information, nor unless the latter was led thereby to 
 change his action, and was thereby injured. Piper v. Gtlmore, N, S. iii. 584. 
 
 40. Growth of the law relating to. Note to Piper v. Gilmore, N. S. iii 590. 
 41 The doctrine of estoppel by covenants of warranty discussed. Note to 
 
 Moore V. Littel, N. S. iii. 144. 
 
 42. Husband selling wife's horse, and she, being informed of it before payment, 
 neglects to object until after payment, she is estopped. Dann v. Cudney, N. S. 
 jv. 573. 
 
 43. Party will not be allowed to prove a fact where ho has made an incon- 
 sistent admission, and tlie other party who has acted on it would be injured by 
 the proposed proof. JIawletj v. Griswold, N. S. iv. 186. 
 
 44. Where a company has accepted land from the state under an act allowing 
 pre-emption to settlers on a part of the land, the company and its vendees are 
 estopped from denying the right of the state to allow such pre-emption. Baker 
 y. Gee, N. S. iv. 54. 
 
 45. When boundary is settled and fixed by parol, and improvement made by 
 one on faith thereof, without objection, other is estopped from disputing it. 
 Corklidl V. Sunders, N. S. v. 508. 
 
 46. Equitable estoppel applies equally to transactions in real or personal es- 
 tate. Id. 
 
 47. Such a defence may be made in ejectment. Id. 
 
 48. Partners estopped from setting up claim to lands sold by one partner, 
 when they have sold the land received in exchange therefor and proceeds re- 
 ceived by partnership. Moran v. Palmer, N. S. i . 62. 
 
 49 Party disclaiming ownership to administrator not estopped by the latter's 
 putting the property in his inventory and having it appraised. Turner v. Waldo, 
 N. S. vii. 57-3. 
 
 50. A record of a judgment on the same subject-matter referred to in a find- 
 ing, cannot be set up as an estoppel, without showing on what grounds the court 
 put its decision. United States v. Lane, N. S. ix. 122. 
 
 51. Corporations may be estopped as to matters within the scope of their 
 powers, without a formal assent on their records. Kneeland y.Gilman, N. S. ix. 
 203. 
 
 52. A false representation not acted upon, works no estoppel for the party by 
 whom it is made. Divries v. Hni/wodd, N S. ix. 447. 
 
 53. Where one makes a deed of laud covenanting that he is the owner, and 
 
ESTOPPEL. 411 
 
 eub^cquentlv acquires an outstanding and adverse title, such title enures to the 
 grantee on the ground of estoppel. Irvine v. Irvine, N. S. ix. 578. 
 
 54. Grantee accepting a deed is estopped to deny the grantor's title, though 
 the instrument is a deed-poll and not signed by grantee. Emerson v. Mooney, N. 
 S. ix. 713. 
 
 55. Where a party acting under a mistake of law or of fact does acts which 
 mislead the adverse party, ho is estopped, as well as if he was not acting under 
 such mistake. Garner v. Bird, N. S. x. 66, 
 
 56. Estoppel shuts the mouth of a party, whether his original act or declara- 
 tion was intended to deceive or not. Kirk v. Harlman, N. S. x. 70. 
 
 57. Admission by the wife, that certain property levied on belonged to her 
 husband, would not be binding as an estoppel, in favor of other parties not in- 
 fluenced by such admission. Whedon v. Chnmplin, N. S. x. 475. 
 
 58. Silence will estop only where it is u. fraud ; it is different as to positive 
 acts. Lawrence v, Luhr, N. S. x. 535. 
 
 59. A reservation in a lease which becomes the subject of an agreement with 
 a third party, will not estop the lessor unless the lessee is a party to such agree- 
 ment. Chope V. Lorman, N. S. x. 602. 
 
 60. A person entitled to redeem real estate from sale on execution, is not 
 estopped by having told a purchaser to buy, and that he should not be disturbed. 
 Carothers v. Weiinry N. S. x. 607. 
 
 61. In divorce a former adjudication need not be specially pleaded ; it may be 
 given in evidence at the trial. Blnin v. Blain, N. S. xiii. 57. 
 
 62. Dismissing a petition for divorce in New Hampshire for want of proof, no 
 bar to granting divorce in New York. Id. 
 
 63. A judgment in a former action is no bar to second action for same cause, 
 if the latter had not then accrued. Marcellus v. Countrijman, N. S. xiii. 57. 
 
 64. Parol evidence is admissible to show that the second demand was not re- 
 covered in first action. Id. 
 
 6p. No rule is more necessary to enforce good faith than that which estops a 
 person from enforcing claims which he has induced others to suppose he would 
 not rely on. Faxton v. Faxton, N. S. xiii. 453. 
 
 66. Merely indorsing a mortgage with the word "cancelled" and signing the 
 mortgagee's initials, amounts to nothing but evidence of intention, unless there 
 is an actual agreement with the mortgagor on which he has relied. Id. 
 
 67. Husband and wife having recovered judgment against a town for injuries 
 caused to wife by defect in highway, in a suit for loss of wife's services, the town 
 is estopped to deny facts found against it in former action. Lindset) v. Town of 
 Dxnville, N. S. xiii. 713. 
 
 68. If the jury think the sum paid for necessary labor substituted for the wife's 
 services is the measure of a just compensation, they may find damages to that 
 amount. Id. 
 
 69. Whether interest is recoverable in an action of tort or not, the jury may 
 consider time in fixing damages. Id. 
 
 70. Evidence to show that the wife was in ill health prior to the injury is in- 
 admissible. Id. 
 
 71. The maker of a negotiable note, who executes it in such form as to admit 
 of fraudulent alteration is estopped from setting up as a defence the alteration. . 
 Nebeker v. Cochran, N. S. xiv. 697. 
 
 72. One who gives a note to a corporation is estopped from denying the exist- 
 ence of such corporation. Nashua Fire Ins. Co. v. Moore, N. S. xiv. 701 ; and 
 see Haqarman v. Building Association, N. S. xiv. 643. 
 
 73. Falsely representing himself as of age will estop infant from avoiding his 
 contract. Carpenter v. Carpenter, N. S. xiv. 57. 
 
 74. Insurance notice of loss ; order by insurer to insured to furnish plans and 
 specifications of buildings destroyed ; insured estopped. Webster v. Phmnix Fire 
 Ins. Co., N. S. xiv. 320. 
 
 75. Prior owner undertaking to dedicate streets ; subsequent owner estopped 
 from disputing assessments against lots on such street. Neff v. Bates, N. S. 
 xiv. 647. 
 
 76. Receipts of profits of partnership; how far estopped from denying mem- 
 bership of the firm. Eastman v. Clark, N. S. xiv. 125. 
 
 77. A debtor settling with executor, gives his notes to the legatee with usuri- 
 
412 ESTOPPEL. 
 
 oils interest, is estopped from defence to the notes for usury. McCoy v. Strana- 
 Jian, N. S. xiv. 200. 
 
 78. Party disclaiming ownership to administrator not estopped by the latter's 
 putting the property in his inventory and having it appraised. Turner v. Waldo, 
 0. S. vii. 573. 
 
 79. Neither recognition nor acquiescence can operate by way of estoppel in 
 the matter of a highway, until twenty years have run ; after that the right of the 
 public is perfect. Chapmfin v. Swan, N. S. xiii. 257. 
 
 80. The mortgagor having given a certificate of " no defence," cannot set up 
 one against ail assignee. Ashton's Appeal, N. S. xiii. 395. 
 
 81. A lot-owner in a suit by the city for assessment, will not be estopped from 
 alleging want of power in the councils to make the street improvement. Can- 
 field v. Smith, N. S. xiii. 780. 
 
 82. Creditor applying to state court to have security of assignee of insolvent 
 debtor increased, not estopped from claiming that the assignment was an act of 
 bankruptcy. Perry v. Langley, N. S. vii. 429. 
 
 83. Where a tenant in an action of dower is not estopped. The wife is not 
 estopped if the husband, in a deed, mistakes his title as one not giving dower. 
 Foster V. Dwinel, N. S. i. 604. 
 
 84. The child of an heir apparent whose mother dies before her ancestor will 
 not in- such case be estopped by covenants of warranty in her mother's deed. 
 Moore V. Liitet, N. S. iii. 144. 
 
 85. Creditor purchasing subject to mortgage at sale on prior execution cannot 
 dispute validity of mortgage. Horton v. Davis, N. S. iii. 700. 
 
 86. Covenants of warranty in a deed of land do not estop the grantor from 
 availinghimself of an estate of homestead therein. Doylev. Coburn,'S. S.iii. 121. 
 
 87. A sheriff is estopped from showing that goods levied on and left in de- 
 fendant's hands did not belong to the judgment-debtor. People ex rel. Knapp et 
 al. V. Reeder, Sheriff, N. S. iii. 57. 
 
 88. How far surety may be estopped by his act from showing that his signa- 
 ture was fraudulently obtained. Note to Ins. Co. v. Brooks, N. S. iii. 402. 
 
 89. A cestui que trust, having assented to a sale made by the trustee, is estopped. 
 Johnson v. Bennett, N. S. iii. 123. 
 
 90. Corporation not estopped from maintaining action upon their treasurer's 
 bond by having accepted report of their auditing committee approving his ac- 
 counts. Lcxivgton, ^c, Railroad Co. v. Elwell, N. S. iv. 309. 
 
 91. Subscriber to stock of a corporation, and who has paid instalments called 
 for by the directors, is estopped from denying the lawful existence of the cor- 
 poration. Ohio ^ Miss.- Railroad Co. v. McPherson, N. S. iv. 562. 
 
 92. Certificate of deposit for current bank notes estops a party from denying 
 the currency of the notes. Osgood v. McConnell, N. S. iv. 439. 
 
 93. Estoppel as to homestead right by abandonment. Brown v. Coon, N. S. 
 iv. 507. 
 
 94. Wife would not be estopped from denying validity of legislative divorce 
 of herself from her husband, wlio was non-resident of the state. Todd v. Kerr, 
 N. S. iv. 313. 
 
 95. The acts of the company, as accepting premiums from the alienee of a 
 policy of insurance, is an estoppel. Buckley v. Garrett, N. S. iv. 441. 
 
 96. One using a wharf cannot resist payment of wharfage on the ground that 
 it was not properly built. Prescott v. Borough of Duquesne, N. S. iv. 640. 
 
 97. Estoppel of party by his carrier's negligence, discussed. Note toLockhart 
 V. Lichteiilhulcr, N. S. iv. 23. 
 
 98. Extent of the rule estopping one contracting with a corporation from 
 denying its corporate existence. Williams v. Association, N. S. vi. 715. 
 
 99. One cannot convey by metes and bounds part of the tract held in co-tenancy, 
 although such deed will bind him by estoppel. Primm v. Walker, N. S. vi. 255. 
 
 100. A depositor in a bank depo.siting a draft for collection, and his deposit- 
 book being balanced frequently without having the draft credited to him, and 
 having drawn out the balance remaining to his credit, is estopped after six years 
 from going behind the account stated. Hutchinson v. Bank, N. S. vii. 183. 
 
 101. The fact that a bank neglected to have the cashier's bond renewed and 
 to examine the cashier's accounts, does not estop the bank in a suit on the bond. 
 Stark V. Farmers' Bank, N- S- ix. 365- 
 
 102. Any language, whether verbal or written, used by a bank officer repre- 
 
ESTOPPEL— EVIDENCE. 413 
 
 senting a check drawn upon the bank as good, ig an estoppel. Pope y. Bank of 
 Albion, N. S. X. 599. -^ 
 
 103. Where it is agreed in a policy that the aggregate amount of insurance 
 shall not exceed two-thirds of the estimated cash value, it means the value at 
 time of insurance. Elliott v. Lycoming Insurance Co., N. S. x. 74.5. 
 
 104. Plaintiff would be estopped by his allcir.ition in the previous action that 
 they were carriers, in another action against them as warehousemen. Aronson v 
 a cf- P. Railroad Co., N. S. xii. 406. 
 
 105. Having acted upon assayer's report, there being no collusion or fraud, 
 he was estopped from alleging misrepresentations on the contract. Weist v. 
 Grant, N. S. xii. 792. 
 
 106. The rule that a license to do something on the licensor's land followed 
 hy expenditure on the faith of it is irrevocable, rests upon the principle of estop- 
 pel. Huff V. MrCau'ry, N. S. vii. 63. 
 
 107. Where a person injured by railroad accident had accepted a ticket or p.iss 
 describing him as "route agent, an employee of the railroad company," this 
 pass is evidence for the company, but <Ioes not estop plaintiff from showing that 
 lie was not an employee. Penna. Railroad Co. v. Books, N. S. vii. 524. 
 
 108. Tlie true rule that a stated account, unobjected to for a long period, is 
 conclusive upon the parties, unless plaintiff is able to impeach it by showing 
 fraud or mistake. Hutchinson v. Bank, N. S. vii. 184. 
 
 109. See Evidence, pi. 72, 83, 84 and 85. 
 
 ESTR.JlYS. 
 
 1. Constitutionality of ch. 459. laws 1862 (N. Y.). Rochoell v. Nearinq, N. 
 S. vi. 378. ^ 
 
 2. Proceedings therennder are penal. Id. 
 
 3. Liability of captor, seizing animal on the public highway. Id. 
 
 EVIDEXCE. 
 
 I. GKNEEAtil-T. 
 
 1. Evidence, weight of — subject discussed. 0. S. i. 129. 
 
 2. Evidence in Scotch courts — comments on. 0. S. vi. 192. 
 
 3. Burden of proof in assault and battery. Commonwealth v. McKie, O. S. 
 iii. 58. 
 
 4. Evidence receivable in a court of admiralty — discussion of. 0. S. ii. 65. 
 
 5. Testimony of parties in criminal prosecutions — subject discussed. N. S. 
 iv. 577; N. S. v. 129, 705 ; N. S. vi. 385. 
 
 6. In an action for death from negligence, on account of cart being struck by 
 cars, when on scales near the track, evidence that the track was moved after the 
 accident is proper. West Chester Railroad Co. y. MrElwe^ N. S. xi. 200. 
 
 7. Evidence of conductor's intention, in putting a passenger off a train, is 
 admissible. Vankirk v. Pennsijlvama Railroad Co., N. S. xiv. 463. 
 
 8. In replevin evidence of title in a stranger is admissible on part of defendant. 
 Schulenherg v. Harriman, N. S. xiv. 464. 
 
 9. Where two persons are murdered at the same time, evidence of the circum- 
 stances of the murder of one is admissible on the trial for murder of the other. 
 Brorn v. Commonwealth, N. S. xiv. 581. 
 
 10. On a trial for murder evidence that prisoner had in his possession coin, 
 specie payments being suspended, and that the murdered man had received a 
 quantity of coin, though several years before, is admissible. Id. 
 
 11. In order to show the actual market value of articles of merchandise at a, 
 particular place in a foreign country, letters by third parties abroad to other third 
 parties — offering to sell at such rates^if written in the ordinary course ofi the 
 business of the party writing them, and contemporaneously with the transaction 
 which is the subject of the suit, are admissible as evidence, even though neither 
 the writers nor the recipients of the letters are in any way connected with the sub- 
 ject of the suit, and though there is no proof that the writers of the letters are 
 dead. Fennerstein's Champagne, N. S. xiv. 464. 
 
 12. In all cases where real transaction was a loan of money, and writings 
 executed as security therefor, parol evidence is admissible in equity. Tibis v. 
 Morris, N. S. v. 378. 
 
 13. Proof of due care on the plaintiff's part, in an action for negligence, will 
 not raise a presumption thereof by defendants, or change the burden of proof. 
 Bamn v. Ferry Co., N. S. vi. 61. 
 
:414 EVIDENCE. 
 
 14. When absence from place for seven years, raises presumption of death. 
 Hinchfldd V. Emerson, N. S. vii. 186. 
 
 15. Proof admissible and relevant, not to be rejected, because might have 
 been more satisfactory and conclusive. People v. Fernandez, N. S. vii. 247. 
 
 16. Res gestse. Id. 
 
 17. Market value of an article at a given time and place may be proved by 
 sales of the same or similar articles at times and places not too remote. Kings' 
 bury V. Moses, N. S. iv. 439. 
 
 18. The slightest circumstances tending to show malice are admissible, where 
 punitive damages are claimed. Lyon v. Hancock, N. S. viii. 503. 
 
 19. Of similar accidents, is not admissible in an action against an overseer 
 of highways, for an injury resulting from breaks in the road. Sherman v. Kort' 
 right, N. S. viii. 382. 
 
 20. Any facts may be shown that had any tendency to prove the res gestte, 
 though short of positive proof. People v. Durant, N. S. v. 59. 
 
 21. Wife of nomiual plaintiff a competent witness. Bonelt v. Stowell, N. S. 
 Y. 318. 
 
 22. Report of auditors to determine injury to plaintiff's land by defendant's 
 mill. Lincoln v.: Manufacturing Co., N. S. v. 125. 
 
 23. A verbal promise, if used to obtain the execution of a writing, may be 
 given in evidence.^ Powelton Coal v. McSkain, N. S. xiv. 196. 
 
 24. Indebitatus' assumpsit will not lie on a special contract unless it has been 
 fully performed by plaintiff. Id. 
 
 25. In action against an express company for a trunk, plaintiff may testify as 
 to contents. Adams Express Co. v. Scli'essinger, N. S. xiv. 196. 
 
 26. Evidence that plaintiff was a person of wealth is admissible. Id. 
 
 27. At common law courts had the power to order inspection of papers, hut in 
 the exercise of such power ivill not take them from one party and deliver to the 
 other. Hillyard v. Township of Harrison, N. S. xiv. 254. 
 
 28. Identity of name is evidence of identity of persons in proving a marriage 
 by certificate. Hutchins v. Kimmel, N. S. xiv. 255. 
 
 29. A fact collateral to the issue, drawn from a witness on cross-examination, 
 cannot be, contradicted by the party eliciting it. Bell v. Woodman, N. S. xii. 
 660. 
 
 30. The destruction or suppression of evidence raises a presumption that the 
 truth was against the interest of the party so destroying the evidence. Win- 
 chell V. Edwards, N. S. xii. 255. 
 
 31. Where the existence of a contract is to be determined by the mutual un- 
 derstanding of the parries, evidence of the understanding of each and every party 
 is admissible. Prescott v. Locke, N. S. xii. 262. 
 
 32. The proof of delivery of baggage-checks to the baggage-master of a rail- 
 road company, is evidence tending to show that the company received the bag- 
 gage. K. P. Railway Co. v. Montell, N. S. xii. 532. 
 
 33. The deposition of a register of the land ofSce is competent to prove that 
 the title to land is in the United States. Lacey v. Marnan, N. S. xii. 536. 
 
 34. Evidence explaining under what circumstances a draft was delivered is 
 admissible if it does not contradict the tenor of the draft. Chicago, C. Sj- L. Rail- 
 road Co. V. We.'t, N. S. xii. 596. 
 
 35. If no objection made or exception taken at trial court will not reverse for 
 admission of incompetent. Voorhisv. Voorhis, N. S. vii. 637. 
 
 36. Introduction of evidence not strictly legal to rebut impression produced 
 bv other evidence that should not have been admitted. Lytle v. Bond, N. S. vii. 
 
 . 829. 
 
 37. Party may explain how ho understood an oath to a bill in chancery. 
 Whitcher v. Morey, N. S. vii. 187. 
 
 . 38. Where date of note is so badly written that the judge cannot read it, evi- 
 dence is admissible to show the true date, and this is for the jury. Fenderson v. 
 liwen, N. S. vii. 443. 
 
 39. In a question of partnership, evidence that the alleged partnership had 
 been formed fraudulently for the purpose of covering property from creditors is 
 not admissible. Thomas v. Moore, N. S. xll. 734. i 
 
 40. A plaintiff is entitled to have the whole conversation referred to by one 
 of his witnesses. Wolf Creek Coal Co. v. Sclmltt, N. S. xii. 786. 
 
EVIDENCE. 415 
 
 41. A general objection to evidence will not nvnil nnle.'s it was irrelevant or 
 inadmissible for any purpose. Gnrsedv. Turner, N. S. xii. 786, 
 
 42. Tile competency of a witness cannot be que.'tioned under a general olijec- 
 tion to evidence. Id. 
 
 43. In trespass, evidence is admissible to show that the deed for the locus in quo, 
 though dated before, was not delivered until after the issuing of the writ. Mux- 
 well V. Mitchell, N. S. xiii. 128. 
 
 44. Evidence reported upon a motion for new trial, which has been overruled 
 by consent, cannot be considered in hearing upon exceptions. Id. 
 
 45. Of fraud is not required to be more direct and positive than facts tending 
 to the inference of it. Rea v. Missouri, N. S. xiii. 327. 
 
 46. Evidence dehors the writing may be given, where any doubt arises upon 
 the true sense and meaning of the words of the written contract. Ntwarh ^ 
 Hudson Railroad Co. v. Sanford, N. S. xiii. 391. 
 
 47. An agreement not to plead the Statute of Limitations cannot be given in 
 evidence. Coioart v. Perrine, N. S. x. 202. 
 
 48. A warranty that a certain machine shall be capable with a " good team" 
 of cutting a certain amount of grain, contains a patent ambiguity, yet it may be 
 explained by parol evidence. Gunion v. Madirjan, N. S. iii. 508. 
 
 49. Marriage is a civil conti-act not requiring any particular form of solemniza- 
 tion. Commonwealth v. Slump, N. S. vii. 61. 
 
 50. In a suit brought in assumpsit for breach of a contract between an in- 
 surance agent and his company for percentages earned by agent, the custom of 
 insurance companies in such cases is competent evidence. Ensworth v. Neu) York 
 Co., N. S. vii, 3.32. 
 
 51. Settlement by husband on wife — when it will be valid — presumptions and 
 evidence in relation to. Tnwisend v. Mai/nard, N. S. iii. 572. 
 
 52. Declarations of husband and wife not relating to the original ownership 
 of the money by her, but only to its transmission by her to her husband as a loan, 
 before any claims of creditors existed, are competent evidence. Id. 
 
 53. Parol evidence not admissible to show commencement of a term of court. 
 Hemminway v. Dacis, N. S. xiv. 54. 
 
 54. Evidence that a wife was absent from home for several days at a time, and 
 that her reputation for chastity was bad, is insufficient to establish a charge of 
 adultery. Thomas v. Thomas, N. S. ix. 775. 
 
 55. in action for damages by a hush.ind and wife against a railroad company, 
 for damages received by the wife, evidence is admissible to show the extent of 
 injurv. McDonald et'ux. v, Cldciyo if N. W. Railroad Co., N. S. ix, 10. 
 
 56. Where the vessel is sailing under two charters, parol evidence is admissible 
 to prove which charter is insured. Melcher v. Ocean Ins. Co., N, S. xi, 595, 
 
 57. Irrelevant testimony may be admitted, if .afterwards made pertinent by 
 other testimony. Black v. Railroad Co., N, S. v. 573. 
 
 58. Testimony of defendants in criminal prosecution. N. S. v. 129, 705. 
 
 59. The Statute of Usury may be given in evidence under the general issue. 
 Hamill V. Mason, N. S. x.'l34. 
 
 60. For the purpose of determining the object of testator's bounty or the sub- 
 ject of disposition, parol evidence may be received. Kurtz v. Hibiier, N. S. x. 
 93. 
 
 61. In an action for personal property, when plaintiff never had possession, 
 bases his right to recover on an alleged purchase, where the sale was concluded 
 and evidenced by a bill of sale, such bill of sale is the best evidence. Barnett v. 
 
 Williams, N. S. x. 407. 
 
 62. Evidence to support claim for labor in an action to enforce a lien upon a, 
 vessel. McCabe v. McRae, N. S. x. 671. 
 
 63. Parol evidence to affect the language of a policy. Note to Insurance Co. 
 v. Loneii, N. S. iii. 662. 
 
 64. Evidence that passenger is lame and unable to take personal charge of 
 baggage, is admissible to rebut the presumption of negligence from his leaving 
 it. Curtis V. Railroad Co., N. S. vii. 125. 
 
 65. The prospective effects of injuries received on one who brings an action 
 for damages for injuries received, may be shown by the opinion of a surgeon. K. 
 P. Railtva/i Co. v. Pointer. N. S. xii". 63. 
 
 66. Evidence in action for compensation for services of agent in obtaining 
 subscriptions to stock of corporation. Low v. Railroad Co., N, S, iv, 438. 
 
416 EVIDENCE. 
 
 67. Courts of the United States governed by rules of evidence of their state. 
 Ryan v. Bindley, N. S. iv. 54. 
 
 68. Location of boundary and acquiescence for more than twenty years is evi- 
 dence of highest nature. Reedy. Farr,'S. S. vi. 314. 
 
 69. Where negligence is on the part of the passenger, the violation of com- 
 pany's regulations will prevent recovery for injury. B. ^ 0. Railroad v. State, 
 N. S. IX. 453. 
 
 70. The testimony of a physician is admissible, although his knowledge is de- 
 rived from study alone. Taylor v. Grand Trunk Railroad Co., N. 8. viii. 571. 
 
 71. One placing name in blank on back of note may show his connection with 
 such note by parol. Sturtevant v. Randall, N. S. vi. 565. 
 
 72. If the cashier informs a surety that a note is not paid, in consequence of 
 ■which he surrenders certain securities, the bank is estopped to deny such note is 
 paid. Cochico National Bank v. ITasbik, N. S. xi. 720. 
 
 73. A party may prove the facts in issue to be different fiiom a statement of 
 them by his own witness. Thornton v. Thornton, N. S. vi. 341. 
 
 74. Parol proof of a license specially pleaded to an action of trespass. Ham- 
 Uton V. Windolf, N. S. xii. 206. 
 
 75. Where certain acts of plaintiff are in evidence before the jury tending to 
 show fraud, he may state the reason for doing them, to rebut the presumption. 
 Janvrin v. Fogg, N. S. xi. 268. 
 
 76. Where the date of a sale, attacked for fraud, is material, evidence that 
 some months after its date the vendor called on a lawyer to write a transfer of 
 the goods, is competent and relevant. Moiig v. Benedict, N. S. xiii. 455. 
 
 77. Proof of the false affirmation in deceit. Coon v. Ativell, N. S. vi. 378. 
 
 78. Of a witness having knowledge only by sound. State v. Shinborn, N. S. 
 vi. 379. 
 
 79. In money had and received, note with defendant's name on back, admis- 
 sible under the general issue. Sturtevant v. Randall, N. S. vi. 566. 
 
 80. When admissible, of condition of a highway, after injury received from 
 its insufficiency. Walker v. Westfield, N. S. vi. 569. 
 
 81. When a fact is not collateral to the issue. Id. 
 
 82. It is a general rule of law and equity that a party may always plead, 
 prove and rely on the truth of any transaction in the determination of his rights, 
 unless he would commit a fraud on the adverse party. Clark v. Coolidge, N. S. 
 xi. 58. 
 
 83. Estoppels in pais only apply where the party doing the act or making the 
 admission knows the truth of the matter, or has better means of knowing it 
 than the adverse party. Id. 
 
 84. The doctrine of estoppel applies in actions relating to real property as 
 well as personal. Finnegan v. Carahtr, N. S. xi. 460. 
 
 85. A party to a chancery suit concerning a dominant tenement, who after- 
 ward becomes seised of the servient tenement, is not estopped from asserting that 
 bv the true construction of the deeds the easement is extinguished. Glenn v. 
 Davis, N. S. xi. 531. 
 
 86. Where a verdict is against the weight of the evidence, new trial will bo 
 granted. Davies v. Roper, O. S. iv. 504. 
 
 87. The admissions of an agent are admissible against his principal only 
 where they accompanied the transaction so as to be a part of the res gestte. Ha- 
 zletonv. Union Bank, N. S. xii. 464. 
 
 88. Statements of the president of a bank made after payment of a certificate 
 of deposit, the indorsement of which is in question, are not admissible against 
 the bank. Id. 
 
 89. Baptismal register cannot pi'ove marriage of child's parents. Blackburn 
 v. Crawfords, N. S. v. 510. 
 
 90. Where there has been no official registry kept, a private memorandum-book 
 of the minister of the church is admissible on the question of the marriage. Id. 
 
 91. Cohabitation as evidence of marriage. /(/. 
 
 92. What evidence of priest and attorney admissible in cases of marriage and 
 legitimacy. Id. 
 
 93. An oral award by referees, under an oral submission, is competent evidence 
 upon a question of disputed boundary between the parties. Byam v. Robbins, N. 
 S. iii. 120. 
 
 94. Evidence of permanent injury may be given in an action for damages from 
 
EVIDENCE. 41T 
 
 injuries receiyed from defect in highway. Cremer t. Town of Portland, N. S.~ 
 xiv. 324. 
 
 95. That grantee gare wife a note of the husband's as consideration for the 
 land is inadmissible in evidence in ejectment by the husband. Houck v. Ritter, 
 N. S. xiv. 58-t. 
 
 96. Proof of a ceremony in a foreign state, followed by cohabitation fts man and 
 wife, will be presumed a valid marriage. Buichins v. Kimmel, N. S. xiv. 252. 
 
 97. Where husband is sought to be charged for a sale by his wife of liquor 
 without a license, evidence of similar sales is admissible. Hensley v. State, N. 
 S. XIV. 396. 
 
 98. The opinion of a medical witness that a person was not worthy of insur- 
 ance in June, is not competent evidence in a suit on a policy commenced in 
 August of the same year. Ins. Co. v. Mahone, N. S. xiv. 525. 
 
 99. In equity, an amendment of the bill, when allowed after answer and re- 
 plication, does not open the pleadings unrestrictedly. Keene v. Wheatley ^ 
 Clarke, O. S. ix. 33. 
 
 100. Enlistment and desertion may be proved otherwise than by record. Leb- 
 anon V. Heath, N. S. vii. 315. 
 
 101. Action against railroad company for injury caused by accident to one 
 riding on a pass as an employee of the railroad company. Penna. Railroad Co. 
 V. Books, N. S. vii. 524. 
 
 102. In a suit to recover a dividend declared payable in dollars, evidence is 
 inadmissable to show that the corporation received their earnings in property or 
 in other but money. Scott v. Cent, Railroad Sf Banking Co. of Georgia, N. S. 
 viii. 310. 
 
 103. Complaint on express agreement will be sustained by evidence of an 
 implied one in New York. Smith v. Lippincott, N. S. vii. 570. 
 
 104. Under the general issue in assumpsit, evicence is admissible to show 
 that alleged cause of action did not exist at the commencement of action. Mason 
 T. Eldred, N. S. vii. 402. 
 
 105. Where it does not appear clearly on what ground testimony objected to 
 was admitted, and it was admissible for any purpose, the court cannot regard it 
 as having been admitted for an improper purpose. Tijler v. Todd, N. S. x. 627. 
 
 106. Where an objectionable question was asked and was permitted on ob- 
 jection by an auditor, but the witness in his answer stated only a fact that was ■ 
 admissible in evidence, it was held that the impropriety of the question was not 
 a sufficient reason for setting aside the auditor's report. Id. 
 
 107. Where the same question was repeated and the witness answered it in a 
 manner that was in itself inadmissible, but the counsel at once disclaimed it as 
 evidence, it was held that the impropriety of the question and answer was not a 
 sufficient reason for setting aside the auditor's report. Id. 
 
 108. In a complaint for fraud in negotiating a sale of land, words used by the 
 vendor, but not inserted in the complaint, may be given in evidence if they sus- 
 tain the allegation. Updyke v. Abd, N. S. x. 743. 
 
 109. Where political opinions of parties may be given in evidence. Smith v. 
 Brazleton, N. S. ix. 762. 
 
 110. Evidence in abduction suit. Rice v. Nickerson, N. S. iv. 703. 
 
 111. A party applying for an order to examine a party to the record in a bill 
 in equity — what is necessary to be shown. Anspach v. Thompson et al., N. S. iv. 
 362. 
 
 112. Whether such order is grantable of course on a suggestion of no interest. 
 Id. 
 
 113. Evidence to show the extent of damage occasioned by a servant's leaving 
 his employer's service before the expiration of the term, is admissible in an 
 action for labor and work. Blodgett v. Berlin Mills Co., N. S. xil. 661. 
 
 114. Parol evidence is admissible to establish the identity of the property. 
 Spaulding v. Mozier, N. S. xii. 325. ' 
 
 115. Articles of partnership are not evidence of the day it was formed. 
 Philpot V. Gruninger, N. S. xii. 188. 
 
 116. Having proved the purchase of the stock, need not produce the certificate 
 at the trial. Esser v. lAnderman, N. S. xii. 728. 
 
 117. In an action for the interruption of the enjoyment of a well as an ease- 
 ment appurtenant to an estate, not competent to show the well had been used by 
 the public for sixty years, Stevens v. Dennett, JN. S. xii. 321. 
 
 27 
 
418 EVIDENCE. 
 
 118. In an action of divorce by the husband on the ground of adultery, a 
 letter of the alleged paramour not admissible. Hobby v. Hobby, N. S. xii. 598. 
 
 119. Parol proof is not admissible to show that a policy of insurance does 
 not coyer certain goods expressly mentioned. Hough v. Ins. Co., N. S. xii. 324. 
 
 120. Though on application for a commission to a foreign country it should 
 appear that the mode of examining witnesses in that country differs from the 
 course pursued in England, it is not to be supposed that the evidence will be 
 therefore contrary to the law of England, and the commission may be issued. 
 But if on the trial it appear on the face of the deposit^n , or by extrinsic evi- 
 dence, that the examination has been conducted illegally, the whole, or so much 
 as is illes:al, will be rejected. • Lumley v. Gye, 0. S. iii.'124. 
 
 121. Where there are several causes of action embraced in the same com- 
 plaint, and the recovery appears to be general, parol evidence is competent to 
 show upon which cause or causes of action specified the trial was had and judg- 
 ment obtained. Stedman v. Pachin, N. S. i. 237. 
 
 122. A newspaper account of a trial trip of a vessel in which she is described 
 as owned by a particular person, is not admissible to show notice of such owner- 
 ship against a person who took the paper without at any rate showing that he 
 read the particular article. Denecla v. Wright, 0. S. ii. 510. 
 
 123. The question of the effect of a deed delivered as an escrow, and its effect 
 ' as the evidence of a written contract to avoid the Statute of Erauds, are not 
 
 identical and should not be confounded. Cogger, Adm'r, v. Lansing, N. S. x. 
 126. 
 
 124. It is error to permit the defendant to prove the " disloyalty" of the 
 plaintiff, in an action of trespass for taking goods. Hart v. Reynolds, N. S. x. 
 200. 
 
 125. If the political status is to be proved it must be done by acts and not by 
 reputation. Id. 
 
 126. Proof that a horse was captured by Federal soldiers from two or three 
 persons dressed as rebel soldiers, is not sufficient to defeat the right of the owner 
 from whom it had been stolen. Chesneyv. Rodgers, N. S. x. 200. 
 
 127. The insanity of the indorser of a note from the time of its issue until 
 his death, is admissible to prove the invalidity of the transfer. Hannahs v. 
 Sheldon, N. S. x. 471". 
 
 128. The summons, returns, pleadings, and all other proceedings are admis- 
 sible under a plea of nul tiel record. Nesbiit v. Logan, N. S. x. 474. 
 
 129. In replevin for oats harvested by defendant from land cultivated for 
 several years by him, the plaintiff cannot offer title-papers to the land in evi- 
 dence. Caldwell v. Custard, N. S. a. 535. 
 
 130. Where a plea, denying the corporate existence of the plaintiff suing as 
 a corporation, is pleaded, the original articles of association, properly recorded, 
 may be read in evidence, without a certificate of the clerk that it is a true copy. 
 Fortin et al. v. Pump Co., N. S. ix. 260. 
 
 131. In actions to recover damages for the death of a person, the dying de- 
 clarations of the person killed are not admissible. Marshall v. C. ^ G. Railroad 
 Co., N. S. ix. 262. 
 
 132. Tending to prove a contract of a certain character should be submittted 
 to the jury. 'Gregg v. Drakely, N. S. ix. 192. 
 
 133. Courts will take judicial notice of the date of resumption of mail service 
 between two towns after the war. Clay, Administrator, v. Potton, N, S. xiii. 
 392. 
 
 134. They will not take notice without other proof that the late war was 
 Sufficient to prevent notice of dishonor to an indorsee, during its continuance. 
 Id. ^ 
 
 135. In a. suit 'by a purchaser of stock against the president of a corporation 
 to recover the value of stock fraudulently over-issued by him, plaintiff must prove 
 that the certificates purchased by him did not represent genuine stock. BrufFv. 
 Mali, N. S. vii. 48. re M 
 
 136. The Circuit Court of Illinois will take judicial notice of who are its 
 Officers, as of a clerk, whose name is attached to a jurat without official designa- 
 tion. Dyer v. Last, N. S. ix. 714. 
 
 137. An instruction that the jury may infer a promise to marry from evidence 
 Of conduct of the parties, such as the visiting and understanding of the friends 
 
EVIDENCE. 419 
 
 and relatives, and reception of the defendant as a suitor, is erroneous. Walms- 
 ley V. Robinson, N. S. xiv. 55. 
 
 138. Evidence that defendant kept spirituous liquors for sale at a certain date, 
 is admissible as tending to show he still kept them. State v. Cottson, N. S. xiv. 
 122. 
 
 139. The mother of a child born in wedlock, but begotten before, is not a com- 
 petent witness to prove that the child was not begotten by the man who became 
 her husband before its birth, in the absence of evidence of non-access. Page v. 
 Dennison, 0. S. v. 469. 
 
 140. In case of collision the inferential evidence of the officers of the colliding 
 vessel will not weigh against the direct testimony of injured one. The Wenona, 
 N. S. xiii. €45. 
 
 141. In an action against a magistrate to recover damages for his wrongful 
 act in issuing an execution which was invalid on its face, he may show in mitiga- 
 tion that the condition and circumstances of the judgment debtor were such that 
 nothing ()ould have been collected upon a valid execution. Noxon v. Hill, N. S. 
 i. 178. 
 
 142. Where a party asking a question gets an answer that is not responsive, 
 but which would have been admissible in answer to a question calling for it, the 
 other party has no right to object to it and have it stricken out of the testimonj'. 
 Hamilton v. The People, N. S. xiii. 679. 
 
 143. Evidence to impeach a witness must be confined to his reputation for 
 veracity, but the attacking witness having shown his knowledge on that point may 
 be asked if he would believe the other on oath. Jd. 
 
 144. The Supreme Court of the United States does not take judicial notice 
 of the orders issued by a military commander. Burke v. Miltenberger, N. S. 
 xiii. 709. 
 
 145. The common law of England, as changed and modified by our statute, is 
 part and parcel of the law of Alabama, so far as applicable to her institutions 
 and government. Barlow v. Lambert, 0. S. v. 171. 
 
 146. When a party calls for a part that was said at an interview of the parties, 
 it does not follow that the other party may show all that was said. He may 
 show so much of the conversation as made a part of the negotiations, or a part 
 of the res gestse. Brown v. Goldsmith, 0. S. v. 304. 
 
 147. The court will not grant a new trial even if the ruling of the judge was 
 wrong, if upon the whole case justice has been done. Id. 
 
 148. In an action of covenant by a grantee, to recover the amount of an out- 
 standing tax he was compelled to pay, parol evidence is admissible by grantor 
 to prove that grantee agreed to pay the tax at the time of sale. Dearborn v. 
 Morse, N. S. xi. 594. 
 
 149. A parol agreement that a payee will not negotiate and would renew, is 
 inadmissible to vary the effect of a note. Heist et al. v. Hart, N. S. xiii. 452. 
 
 150. On the trial of a forcible entry, evidence of force employed to maintain 
 a possession peaceably obtained is inadmissible. Hoffman v. Harrington, N. S. 
 xi. 532. 
 
 151. The official character of persons acting as mustering officers, is prim^ 
 facie to be assumed. Chapman Township v. Herrold, N. S. viii. 633. 
 
 152. Evidence to show that the wife was in ill health prior to the injury is in- 
 admissible. Lindsey v. Town of Danville, N. S. xiii. 713. 
 
 153. Opinion as to conduct of a horse at the time of an accident, admitted. 
 Id. 
 
 154. New trial will not be granted for newly discovered evidence merely cumu- 
 lative or where there is laches or after judgment. Sheldon v. Stryker, N. S. iv. 
 256. 
 
 155. Judge's commentaries on evidence are not the subject of exception. 
 Powell V. Janes, N. S. iv. 189. 
 
 156. New testimony to prove testimony already given to be untrue, is not 
 cumulative. Id. . rr ■ 
 
 157. What is prim^, facie evidence of existence of corporation. Topping y. 
 Bickford, N. S. ii. 181. 
 
 158. On a a motion for an injunction new matter set up by way of evidenca 
 in the answer responsive to the bill is to be deemed evidence in favor of the de- 
 fendant, «s his sworn statement. Tobin v. Walkinshawet al., 0. S. v. 106. 
 
 159. In an action upon a note given for the price of land, the defendant can- 
 
420 EVIDENCE. 
 
 not be allowed to prove, by way of recoupment in damages, that the plaintiff 
 made false representations as to the quality and productiveness of the soil, and 
 the number of acres contained within boundaries which were truly pointed out, 
 by which the defendant was deceived and thereby induced to make the purchase. 
 Gordon v. Parmelee, N. S. i. 178. 
 
 160. Where land is paid for jointly by A. and B., A. holds the land in trust, 
 and not within the Statute of Frauds — it may be proved by parol. McDonald 
 et al. V. McDonald, N. S. v. 675. 
 
 161. In the trial of a question of insanity, evidence of hereditary taint is com- 
 petent to corroborate direct proof. Smith v. Kramer, O. S. i. 353. 
 
 162. Evidence is admissible to show that the principal witness for one of the 
 parties in a cause had been guilty of an attempt at subornation of perjury therein, 
 in order to affect his credibility. Morgan v. Frees, 0. S. i. 92 . 
 
 163. In an action for slander the position and family of the plaintiff bear on 
 the question of damages, and are admissible in evidence. KlumM v. Dunn, N. 
 S. X. 749. 'f 
 
 164. Evidence, held that the declarations of the plaintiiT made prior to the un- 
 lawful arrest and tending to provoke the same, not being legal justification 
 thereof, are inadmissible in mitigation of damages. Leach v. Francis, N. S. viii. 
 511. 
 
 165. Evidence that party acted under advice of magistrate or person not 
 learned in the law, is not admissible to show absence of malice. Siraus v. Young, 
 N. S. xii. 192. 
 
 166. What evidence within rule admitting proof of contemporaneous frauds. 
 Angrave v. Stone, N. S. v. 567. 
 
 167. Testimony of witnesses, hearing reports of the accusation, in slander. 
 Nottf. Stoddard, N. S. v. 639. 
 
 168. How far evidence of the effect of the slander upon plaintiff is admissible. 
 Id. 
 
 169. A review publisljed sometime before the libel in a criminal information, 
 and containing charges against the prosecutor, alleged to be identical with those 
 in the information, is not admissible on the part of the defendant to show that 
 the prosecutor had silently submitted to them, even when the evidence as to the 
 ti-uth or falsehood of the charges strongly conflicts. Reg. v. Newman, 0. S. i. 
 307. 
 
 170. If a medical witness, on cross-examination, has identified certain medical 
 advertisements as his, they may be read to the jury as a portion of the cross- 
 examination, for the purpose of affecting his credit, but the newspaper in which 
 they are contained cannot be laid before the jury. Commonwealth v. Hersey, N. 
 S. i. 178. 
 
 171. In an inheritance case where the claimant was begotten before and born 
 after marriage, the mother is a competent witness to prove that her deceased hus- 
 band, whose estate is the subject of the claim, was not the father of the claimant. 
 Page v. Dennison, 0. S. v. 469. 
 
 172. Where a child was begotten before and born after marriage, and at the 
 time of its birth both the mother and her husband denied that it was his child, 
 and it was within a few days sent away from his house and reared by its maternal 
 grandfather, and never admitted into the family of the husband, nor reputed as 
 his child, this is evidence in an inheritance case that the child is illegitimate. Id. 
 
 173. In an action of debt to recover the purchase-money of land sold, the de- 
 fence being fraud in misrepresenting the value, evidence that the plaintiff had a 
 higher offer is inadmissible. Negley v. Lindsay, N. S. xi. 193. 
 
 174. Testimony of parties in criminal cases — leading article upon. See 
 supra, pi. 5. 
 
 175. Evidence that the defendant in an indictment refused to fly, when advised 
 to do so, after "suspioions against him were excited, is inadmissible in defence. 
 Commonwealth v. Hersey, N. S. i. 178. 
 
 176. While evidence is admissible to show motive in the accused, yet where 
 the crime charged was the burning of a barn belonging to himself, in order to 
 get the insurance, the record of a suit in equity against him to recover the barn, 
 &c., where he had filed an answer denying the complainant's equitv, &c., was 
 too remote to be admissible for the purpose of showing motive. Hamilton v. 
 People, N. S. xiii. 679. 
 
 177. Collateral fact. Upon the trial of a clerk for embezzlement, the whole 
 
EVIDENCE. 421 
 
 of an entry in a book which was substantially a receipt for the payment of the 
 amount, signed by him, and was unstamped, was read to the jury to identify 
 him ; held, error, and that only the signature for that purpose should have been 
 submitted. Eeg. t, Overton, 0. S. ii. 506, 
 
 178. Where a witness had been twice convicted of an infamous offence, but 
 exhibits a pardon for the second conviction, and says, on examination by the 
 defendant, that he has been pardoned also for the first, the defendant cannot 
 assign as error that the fact of such first pardon was improperly proved. Hauser 
 V. Commonwealth, N. S. v. 668. 
 
 179. A witness who, though not formally impeached, testifies under circum- 
 stances tending to discredit him, has a right to detail facts otherwise irrelevant 
 ■which corroborate his statements. Id. 
 
 180. On a trial for murder, where it has been shown that the prisoner spoke 
 of an intention to rob tlie murdered person and if necessary to murder her, the 
 prosecution may show that the murdered person had money before her death and 
 that none Iiad been found by her administrator after the murder ; and the admin- 
 istration-account is competent evidence of the latter fact. Id. 
 
 181. Evidence that a person charged with larceny had previously attempted to 
 purchase a chattel similar to tliat stolen, has no tendency to disprove theft, and 
 is not admissible for that purpose. Foster v. People, N. S. viii. 494. 
 
 182. On the trial of a prisoner for the murder of his wife the prosecution was 
 permitted to introduce in evidence the will of the father of the deceased, by 
 which it appeared that the testator devised all his property to his wife for life, 
 and after her death to his three children ; the son to take one-half and the de- 
 ceased and her sister each one-fourth. Held, that such evidence was properly 
 admitted, as bearing upon the question of motive. Hendrickson v. The People, 
 O. S. ii. 531. 
 
 183. The violent character of the deceased cannot be established by proof of 
 isolated facts. Franklin v. The State, 0. S. v. 722. 
 
 184. In a criminal case where insanity is set up as a defence, evidence that a 
 brother of defendant had become insane, from a cause similar, is admissible. 
 People V. Garbutt, N. S. vii. 554. 
 
 185. In criminal cases the burden of proof rests upon the prosecution to estab- 
 lish all the conditions of guilt. Id. 
 
 186. It does not follow however that the prosecution are required to put in 
 evidence of sanity before the defence has introduced evidence of the contrary 
 condition. Id. 
 
 187. Drunkenness is no legal excuse for the commission of crime. Id. 
 
 188. Upon a charge of obtaining money by false pretences, it is sufficient if 
 the actual substantial pretence which is the main inducement to part from the 
 money, be alleged in the indictment and proved ; although it may be shown by 
 evidence that other matters not laid in the indictment in some measure operated 
 upon the mind of the prosecutor as an inducement for him to part with his money. 
 Reg. V. Sewgill, 0. S. ii. 507. 
 
 189. Evidence in indictment for keeping bawdy-house. Harwood v. The Peo- 
 ple, N. S. iii. 499. 
 
 190. Admission of evidence of other similar acts to show intent. Common- 
 wealth V. Tuckerman, N. S. iii. 184. 
 
 191. Evidence in action for seduction. Kenyon v. People, N. S. iii. 569. 
 
 192. False explanations, made by an accused person, of suspicious facts, are 
 proper to be submitted to the jury. Walker v. State, N. S. xiii. 454. 
 
 193 Magistrate is protected in issuing warrant if there is colorable evidence. 
 Pratt V. Bogardus, N. S. vii. 378. 
 
 194. Need only recite the accusation, not the evidence. Id. 
 
 195. Behearing on ground of newly-discovered evidence. Dennett v. Dennett, 
 N. S. iii. 125. 
 
 196. If person is as well known by the name in indictment as by the one 
 pleaded, the indictment is good. State v. Dresser, N. S. vii. 445. 
 
 197. Under indictment for selling spirituous liquors, evidence of selling ale, 
 porter and cider not admissible. Statev. Rand, N. S. xi. 721. 
 
 198. The rule in United States courts as to the introduction of secondary evi- 
 dence, is that it must be the best the party has in his power to produce. Cornett 
 v. Williama, N. S. xiv. 328. 
 
422 EVIDENCE. 
 
 199. The English rule that there are no degrees in secondary evidence ia not 
 in force. Cornett t. Williams, N. S. xiv. 328. 
 
 200. The Act of March 3d 1871, nor the statute of Texas of February 11th 
 1850, does not change the rule. Id. 
 
 201. The proper time to object to the int'roduction of testimony for incompe- 
 tency is when such testimony is offered in evidence at the trial. Sweeny v. 
 Mathews, N. S. viii. 440. 
 
 202. Evidence of frequent sales of property of one person by another is comr 
 petent to prove agency. Bragg v. Railroad Co., N. S. iv. 703. 
 
 203. Evidence of death of insured ; waiver of objection to proof. Miller v. 
 Life Ins. Co., 0. S. v. 313. 
 
 204. Introduction of evidence not strictly legal to rebut impression produced 
 by other evidence that should not have been admitted. Lytle t. Bond, N. S. vii. 
 829. 
 
 II. Judicial Pkockedings. 
 
 205. Courts will take judicial notice of the existence and authority of officers 
 of a colonial government without certification by the imperial authorities. La- 
 zier r. Westcott, ST. S. iii. 501. 
 
 206. In suit under charter of another state the decisions of that state are the 
 best evidence of the rights and duties of stockholders. Mining Co. v. Levy, N. 
 S. vii. 312. 
 
 207. The record of insolvent's discharge in Massachusetts must be held con- 
 clusive in New York. Hall v. Bobbins, N. S. xi. 266. 
 
 208. A judgment insufficientlv authenticated cannot be read in evidence. 
 Wetherill v. Stilhnan, N. S. x. 536. ' 
 
 209. Fraudulent divorce in another state no bar to suit for divorce in this state. 
 Shannon v. Shannon, N. S. ii. 180. 
 
 210. Evidence of the contents of the lost portions of the record is admissible 
 after existence and loss have been proved. Miltimore v. Miltimore and De 
 Bourbon, N. S. i. 566. 
 
 in. Pbocekdings in other Actions between same Pasties. 
 
 211. Copy of verdict in equity case, without the rest of the record, is not evi- 
 dence. Mitchell V. Mitchell, N. S. ix. 639. 
 
 212. When parol evidence may be given in second action, of the grounds of a 
 former judgment. Perkins v. Parlcer, N. S. v. 318. 
 
 213. A judgment of divorce not extended upon the records of a court may be 
 proved by a certified copy of the docket entry of the libel, and the clerk's mem- 
 oranda of the action of the court thereon. Jay v. East Livermore, N. S. ix. 197. 
 
 214. A verdict of guilty which was afterwards set aside is no evidence of 
 probable cause in a suit for malicious prosecution. Eichter v. Roster, N. S. xiv. 
 57. 
 
 215. The declarations of the real party in interest, though he is not of the 
 party of record, are evidence against him. Bigelow, Administratrix, v. Foss, N. 
 S. xi. 593. 
 
 216. Parol evidence as to cause of action in the first suit. Royce v. Burt, N. 
 S. iv. 251. 
 
 . 217. Parol proof as to identity of cause of action. Hall v. Jones, N. S. iv. 
 440. 
 
 218. Parol evidence is admissible to show that the second demand was not 
 recovered in first action. Marcellus v. Countryman, N. S. xiii. 57. 
 
 219. In an action of warranty against the heirs of the covenantor, the record 
 of the eiectment suit is admissible as evidence to prove the eviction. Crisjield v. 
 Starr, N. S. xii. 55. 
 
 220. Eecord of replevin for the property alleged to have been stolen is not 
 admissible. Schofield v. Ferrers, N. S. iv. 443. 
 
 221. When the evidence taken in an equity case is used by the parties in 
 another action, as original testimony, the jury may form conclusions from it, 
 without reference to the final decree in the first case. Cooper v. Ulterbach, N. 
 S. xii. 789.. 
 
 222. An item of six dollars and sixty cents is the largest amount provable by 
 party's book and suppletory oath. Kellon's Administratrix v. Hill, N. S. x. 536. 
 
 223. When any part of a chancery record is read in evidence, the whole is 
 evidence. Thayer v. McGee, N. S. x. 536. 
 
EVIDENCE. 423 
 
 224. Tho record of a New York court showing that the parties had been per- 
 sonall)' summoned is conclusive. Weiherill y. StUhnan, N. S. x, 536. 
 
 225. Proof of jurisdiction cannot be required, if tlie court has assumed to 
 exercise it legally. Id, 
 
 226. The record of proceedings in bankruptcy is only prim^ facie evidence of 
 the facts stated in it, and may be contradicted by parol. FeMey v. Barr, N. S. 
 X. 795. 
 
 227. The return of the sheriff to. writ of ejectment is only prim^ facie evidence 
 of defendant's possession. Corleij v. Pentz, IS. S. xiv. 523. 
 
 228. It is competent to show by parol the grounds on which a verdict or 
 judgment was rendered, when the grounds become material and do not appear on 
 the record. White v. Madison, N. S. ii. 663. 
 
 IV. Depositions and Notes op Evidence of Deceased Witnesses. 
 
 229. Copy of minutes of evidence of deceased witness may be read. Whitcher 
 V. More;/, N. S. vii. 187. 
 
 230. Evidence by commission admissible, though witness be dead. Lawrence 
 V. Findi, N. S. V. 58. 
 
 231. Must show all requirements of statute have been complied with. Id. 
 
 232. It is not sufficient for a defendant, who is testifying to what a deceased 
 witness proved on a former trial, to testify .substantially — he must give all. 
 Black V. Richardson, N. S. xiii. 777. 
 
 V. Laws op United States and other States — how peoted. 
 
 233. Certiiied copies of all records in the secretary's office are evidence where 
 the original would be. Northumberland County v. Zimmerman, N. S. xiv. 125. 
 
 234. The commission of the governor is the proper evidence of the appoint- 
 ment of an officer. Id. 
 
 235. Where the constitution requires the legislature to keep a journal of its 
 proceedings, parol evidence' of such proceedings inadmissible. People ex rel. 
 Marless v. Secretary of Slate, N. S. iii. 314. 
 
 236. Alleged c(^y of survey not made by order of a court of admiralty or 
 under oath, not evidence, though certified by American consul. Stephenson v. 
 Ins. Co., N. S. vii. 444. 
 
 237. Conclusiveness of legislative journals as to legislative proceedings. 
 Note (1) to People v. Auditor, ^c, N. S. iii. 343. 
 
 238. The copy of a legislative act, certified by the chairman of each house, 
 signed by the governor, and filed in the office of the secretary of state, is tlie sole 
 and conclusive evidence of a statute. State v. Young, N. S. v. 679. 
 
 239. The journals of the legislative houses are not competent evidence to show 
 that a copy of a statute, authenticated in the manner above stated, does not con- 
 tain the whole of the law as in point of fact it was enacted. Id. 
 
 240. It is the province of the legislative department to certify in its own mode 
 the laws it enacts. Id. 
 
 241. Such also was the rule at common law. Id. 
 
 242. When notarial certificate evidence of facts stated therein. Bank r. 
 Gregory, N. S. vi. 57. 
 
 VI. Public Writings, and hekein op Recokds. 
 
 243. Certificates from the War Department of the mustering in of recruits 
 are in no sense records importing absolute verity. Chapman Township v. Herrold, 
 N. S. viii. 633. 
 
 244. Theonlyproperevidenceoftheinsolvency of the estate of adeceased person 
 is the documentary evidence of the probate office. Bates v. Avery, N. S. xi. 462. 
 
 245. The journal of the warden of a prison is not a technical record in such 
 sense as to be the exclusive evidence of the fact that defendant was in a certain 
 prison at a certain time. Hauser v. Commonwealth, N. S. v. 658. 
 
 246. When the act of a clerk is not the act of the notary, it may be proved as 
 the act of an individual. Gawtry v. Doane, N. S. vi. 714. 
 
 247. After his death, memoranda made by him are admissible to prove demand 
 and notice. Id. 
 
 248. The records of the post office department afford evidence of the restora- 
 tion of mail service to the seceding states. Clay v. Potion, N. S. xiii. 392 
 
 249. The record in the office of the register of deeds of a patent is admissible 
 without proof that the original is lost. Bernsline v. Smith, N. S. xii. 730. 
 
 250. The proper proof of papers on file in government offices is by certified copies 
 from those who have them in custody. Barney v. Schmeider, N. S. ix. 447, 
 
424 EVIDENCE. 
 
 VII. Deeds. 
 
 251. A deed purporting to have been executed by the president of a railroad, 
 as authorized by tlie Act of 1852 of Ohio. Walsh v. Burton, N. S. xiii. 6.'>4. 
 
 252 . Evidence admissible to prove that no consideration passed between the 
 parties to a deed. Groesbeck v. Seely, N. S. iv. 572. 
 
 253. In a suit to have an absolute deed decreed a mortgage, parol evidence is 
 admissible to show the true nature of the instrument. Sweet v. Parker, N. S. 
 xi. 265. 
 
 254. Admissibility of an altered deed or agreement. See Maybee v. Sniffin, 
 O. S. V. 311. 
 
 255. In an action of covenant on a deed, where the declaration alleges the 
 deed to be made by the defendant, in which the " defendant did covenant for them- 
 selves and their heirs, that they were well seized," &c. — a deed made by defendant 
 and wife, the land not being the individual property of the wife, is admissible in 
 evidence. Bovey v. Smith, N. S. xi. 594. 
 
 256. Nor will the fact the premises are not described in the same words as in 
 the declaration be any objection to its admission. Id. 
 
 257. It is no objection to the admission of a deed in evidence that it was not 
 recorded until after suit was brought. Russell v. Sweezey, N. S. xi. 460. 
 
 258. Where the description in the deeds of demandant is the same as in the 
 writ, no other identification of the premises is necessary. Rand v. Skillen el ux., 
 N. S. xiv. 397. 
 
 259. A deed which refers to a plat of land for one of the lines of a boundary 
 may be read in evidence without the production of the plat. Dreery v. Cray, N. 
 S. X. 62. 
 
 260. Construction of word " premises " in a deed may be assisted by resort to 
 previous written agreement between the parties. Zinc Co. v. Franklinite Co., TS. 
 S. vi. 568. 
 
 261. Two papers, each signed by one party, may be submitted as evidence of 
 a written contract of sale, signed by both. Rhoades v. Custner, N. S. vi. 320. 
 
 262. A grantee must show that an alteration beneficial to himself was properly 
 made. Robinson v. Myers, N. S. xi. 196. 
 
 263. If the alteration appears to be made with the same pen and ink. Td. 
 
 264. The law does not presume an interlineation in a deed a forgery or made 
 after execution. Id. 
 
 Vni. Wills. 
 
 265. Evidence showing the affection and regard of the decedent for the donee 
 is admissible to sustain a gift as a donatio mortis causa. Rhodes v. Childs, N. 
 S. X. 347. 
 
 266. The testator gave to Amasa, his son, " the sum of $90,000, which sum 
 is to be made up of his notes, drafts, &c., which will be found sealed up and 
 among my papers and directed to him, to be delivered to him by the executors in 
 discharge of this bequest." There was found among the testator's papers a 
 package sealed and directed in the hand of the testator thus : " For Amasa 
 Mason — notes, drafts, &c. , to make up the sum of §90.000 devised to him in my 
 will." The package on being opened, was found to contain notes, drafts, &c., 
 against Amasa, for $90,281. Among the papers of the deceased, but not in the 
 package, was a note against Amasa for $33,000 and interest, of a date anterior 
 to the will, also a book account of $6000, mostly prior to the date of the will. 
 A memorandum in the handwriting of the deceased, and his declarations, also a 
 paper signed by Amasa, were offered in evidence to show that the $33,000 note 
 and the $6000 account were not intended to be included among the notes and 
 draf1;s to be delivered to Amasa by the executors in discharge of the $90,000 
 bequest. Held, that this evidence was inadmissible. Crosby v. Mason, N. S. vi. 
 13. 
 
 267. Held, also, that the fact of finding among the papers of the deceased the 
 package answering the description in the will, the superscription on the package 
 and its contents were all proper and admissible evidence for the purpose of iden- 
 tification. Id. 
 
 268. Held, also, that by the terms of the will in connection with this evidence, 
 such notes and drafts only as were found in the package were to be delivered to 
 Amasa by the executors in discharge of the bequest. Id. 
 
 IX. Other Private Writin&s — Shop-books, Receipts, Lktteks. 
 
 269. Where a party offered in evidence an entry in a shop-book, unaccompa- 
 
EVIDENCE. 425- 
 
 nied by the testimony of the clerk who made the entry, though he was living, 
 and in the immediate yicinity, and no reason for his absence appeared : it was 
 held, the eridence offered was inadmissible. Stiles et al. v. Homer et al., 0. S. 
 i. 567. 
 
 270. Corporation books do not prove themselves ; proof of their true charac- 
 ter must be given to authorize their reception in evidence. Coal Co. v. Foster, 
 N. S. viii. 368. 
 
 271. At the time of offering evidence some competent purpose should be 
 stated as the ground for its reception, if it be not obviously competent on its 
 face. Id. 
 
 272. Entries upon books of third persons. State v. Shinborn, N. S. vi. 379. 
 
 273. Requisites of such entries. Id. 
 
 274. For what a physician's book may be received. Clarke v. Smith's Ex'r, 
 N. S. vi. 120. 
 
 275. Effect of law admitting parties to testify upon admission of one party's 
 book in evidence. Id. 
 
 276. An account sale unless proved in the ordinary way can only be received 
 in evidence on the ground of contract. Coes v. Nash, N. S. xiii. 451. 
 
 277. Adding a signature to a writing without fraudulent intent and its sub- 
 sequent erasure, will not prevent its use in evidence. Rhoades v. Castner, N. S. 
 xi. 320. 
 
 278. When church record of a baptism admissible in. Kennedy v. Doyle, N. 
 S. V. 509. 
 
 279. Private memorandum of marriage by minister, admissible in, Blackburn 
 V. Crawfords, N. S. v. 510. 
 
 280. How such memorandum is to be proved. Id. 
 
 281. Objection to want of original or copy should be taken before trial. Id. 
 
 282. When entries in the course of business admissible. Note to fennerstein' s 
 Champagne, N. S. v. 467. 
 
 283. Ancient maps and surveys are evidence to ascertain boundaries and fix 
 monuments. McCauslandv. Flemming, N. S. x. 63. 
 
 284. Drafts offered for title must bear an official character, but not when of- 
 fered for boundary. Id. 
 
 2*5. The unauthenticated roll of a company is not evidence of a member's 
 desertion. State v. Symonds, N. S. x. 135. 
 
 286. The books of a bank are not competent to show the amount of paper dis- 
 counted for the defendant, in a suit between third parties. Perrine v. Hotchkiss, 
 2Sr. S. X. 347. 
 
 287. The result of an examination of a bank's books may be proved by the 
 persons making it, where the books are too numerous to be examined in court. 
 Button V. Driggs, N. S. xiv. 196. 
 
 288. A tax receipt is no evidence of who paid the money. Denman v. McMa- 
 hin, N, S. xii. 532. 
 
 289. A receipt in full of a demand, is primS. facie a perfect defence. Guyelte 
 T. Town of Bolton, N. S. xiii. 777. 
 
 290. Whether an attorney's books are admissible, quaere. Hale's Executors v, 
 Ard's Executors, N. S. iv. 638. 
 
 291. Subjects of book charge. Id. 
 
 292. Parol evidence is admissible to explain a receipt which does not constitute 
 a contract. Randall v. Kelsey, N. S. xiii. 649. 
 
 293. The receipt of an internal revenue collector is proper evidence to show 
 payment of the tax. Id. 
 
 294. Receipts, when mere acknowledgments of delivery or payment, are but 
 prim^ facie evidence of the facts, and not conclusive ; the facts may be contra- 
 dicted by oral testimony. Batdorf v. Albert, N. S. viii. 697 
 
 295. A policy of insurance, containing a clause that goods held on commission 
 must be insured as such, is to be interpreted by its own terms. Baltimore Ins. Co, 
 V. Loneij, N. S. iii. 651. 
 
 296. Whether a memorandum made by a witness can go to the jury depends 
 upon whether, after examining it, he can state the fact from memory. Watts v. 
 Sawyer, N. S. xiv. 457. 
 
 297. When prices current from other dealers are admissible in evidence. Cli- 
 quot's Appeal, N. S. v. 507. 
 
426 EVIDENCE. 
 
 298. Copy of minutes of deceased witness may be read. Whltcher v. Morey, 
 N. S. vii. 187. 
 
 299. On account annexed, proof that an item of credit was entered by mistake 
 is incompetent. Saunders v. Osgood, N. S. T. 698. 
 
 » 300. Upon a trial for larceny of a horse, a bill of sale offered by the prisoner, 
 
 without its bonS; fide execution, is inadmissible as evidence. Taylor v. State, N. 
 S. xi. 330. 
 
 301 . Where a contract is made by a written correspondence solely, it must be 
 treated as a contract in writing, mdtmore v. South Boston Iron Co., N. S. i. 
 403. 
 
 302. A policy together with the application, is primH facie evidence of the 
 title of the insured to the property embraced in policy. Kansas Insurance Co. v. 
 Berry, N. S. xi. 60. 
 
 303. In an action on a draft payable in " currency" parol evidence is admis- 
 sible to show the meaning of the word currency. Pilmer v. Bank, N. S. iv. 
 336. 
 
 304. Patent and latent ambiguities in written instruments ; subject discussed. 
 N. S. v. 140. 
 
 305. Unexecuted papers are not evidence. Green v. Goble, N. S. x. 602. 
 
 306. Letter-press copies of correspondence are not originals, but must be 
 proved as secondary evidence. Foot v. Bentley, N. S. x. 797. 
 
 307. To prove there was a public right of way over certain closes, part of a 
 manor, defendant put in evidence a map used by a deceased steward of the 
 manor, at the manor courts, for the purpose of defining the copyholds. In it 
 there appeared a space marked out by two lines crossing the closes in question, 
 and called Mellow Lane. There were occupation ways as well as public high- 
 ways marked upon the map, but there was nothing to distinguish one from the 
 other, nor was there anything to show that the space marked out as above men- 
 tioned was a public highway at all. The map was held inadmissible. Pipe v. 
 Fulcher, 0. S. vii. 505. 
 
 308. Unanswered letter from party offering it. Fearing v. Kimball, N. S. vi. 
 64. 
 
 309. An unanswered letter, offered by the party writing it, if it be restricted 
 to making a demand, where this is required, or merely giving notice, is admis- 
 sible evidence ; but if it contains statements framed for a different purpose, and 
 such statements derive no support from the other evidence in the cause, it is in- 
 admissible. Allen V. Peters, O. S. viii. 426. 
 
 310. If such letter does not go beyond demand or notice, or contain other 
 consentaneous evidence, the whole may be submitted to the jury ; but the court 
 will Scan its contents rigorously, and so instruct the jury, that undue weight 
 shall not be given to such evidence. 2d. 
 
 311. County recorders' books, admissible in evidence to prove the claim of a 
 minor. Pralus v. Pacific Mining Co., N. S. viii. 508. 
 
 312. A memorandum is only evidence when the witness cannot state the par- 
 ticulars of it from recollection, and swears it was correct when made. Kelsen v. 
 Fletcher, N. S.ix. 514. 
 
 313. Courts will judicially notice the art of photography audits results. Luke 
 v. County, N. S. xiv. 397. 
 
 314. A photograph is admissible in evidence on a question of identity. Id. 
 
 315. In an action for goods sold where the plaintiff's evidence showed that 
 the defendant agreed to take the goods and pay their cost, a nonsuit cannot be 
 entered even if there is no evidence of the cost. Watts v. Sawyer, N. S. xiv. 
 457. 
 
 316. Evidence of the value of the goods is admissible. Id. 
 
 X. Privileged Communications. 
 
 317. To make communications to counsel privileged, they must be made to 
 them confidentially as counsel in the case in which they are made. Earle v. 
 Grout, N. S. xiii. 709 ; and see Hamilton v. The People, N. S. xiii. 679. 
 
 318. The facts that make them privileged must be proved, and the burden of 
 proof is on him "who seeks to exclude them. Id. 709. 
 
 XI. Handwriting and Signatures. 
 
 319. When specimens of handwriting admitted or proved to be genuine are 
 offered to prove bj' comparison the genuineness of the writing in issue, the com- 
 parison can only be made by the jury. Baycock v. Greup, N. S. vii. 529. 
 
EVIDENCE. 427 
 
 320. Such evidence is competent only as corroborative of other proof ; it is not 
 admissible as independent proof. Haycock v. Greup, N. S. vii. 529. 
 
 321. On an issue to determine the genuineness of a signature of A., speci- 
 mens of B.'s writing in which the name of A. occurs, are not competent indepeu- 
 .lent evidence to prove by comparison that the signature of A. was written by B, 
 Nor is the opinion of a witness that the signature was not written bv A. any 
 foundation for such proof that it was written by B. Id. 
 
 322. Whether such testimony would be competent even in corroboration of 
 other testimony that B. had written the signature in issue, doubted. Id. 
 
 323. In a suit against the defendant as indorser of a promissory note, the 
 question being whether the indorsement was genuine or forged, and the defend- 
 ant claiming that his name had been forged to o, large number of notes of the 
 same maker, and that this was one of them, the plaintiffs introduced a witness 
 who testified that he received the note from the maker and sold it to one E., 
 from whom it appeared that the plaintiffs received it. Held, that on cross-ex- 
 amination he might be inquired of as to having purchased other notes with the 
 Jefendant's name indorsed thereon, such evidence tending to show that the wit- 
 ness might be mistaken in relation to the particular note by confounding it with 
 some of the others. Tyler v. Todd, N. S. x. 627. 
 
 324. The defendant testified in his own behalf that he had received forty-eight 
 notices of protest as indorser of notes of the same maker from banks within a few 
 months, and stated the amounts of the notes. Held, that this evidence was ad- 
 missible in connection with his previous testimony that he had indorsed but one 
 of the notes protested, as tending to prove that there was a large number of for- 
 geries, a fact material to be shown in order to establish an alleged confederacy 
 between the maker of the notes and certain other parties. Id. 
 
 32.5. Questions of this character, involving a great variety of transactions 
 with the accompanying circumstances, often require the testimony to take a wide 
 range. Id. 
 
 326. Where witness having no knowledge of handwriting and can only testify 
 5y comparing handwriting with genuine signature, held, inadmissible. O' Conner 
 V. Layton, O. S. ii. 120. 
 
 327. If the presiding judge is satisfied, upon inspection, of the genuineness 
 of a signature to an instrument, it is sufficient prim§, facie, without other proof. 
 Brown V. Lincoln, N. S. viii. 61. 
 
 328. In comparison of hands, to establish guilt in a criminal prosecution, what 
 is sufficiency of proof of the genuineness of the standard writing is for the court in 
 the first instance. State v. Ward, N. S. vi. 715. 
 
 329. The court having adjudged it genuine to go to the jury, the jury should then 
 examine the testimony respecting its genuineness and should require this fact to 
 be establi-shed beyond reasonable doubt to th^ same extent as any other fact. Id. 
 
 330. Proof of the handwriting of a deceased subscribing witness, and of the 
 signature of the party to a sealed instrument, is prim^ facie evidence of delivery. 
 Meyers v. McCarty, 0. S. ii. 509. 
 
 331. Certificate of judgment under Act of Congress. A certificate by the clerk 
 of the proper court, that he has compared the certified copy of a record ' ' with 
 the original j udgment roll on file in his office, and that the same is a correct 
 copy thereof," is sufficient. Larked. Dessiyh, 0. S. ii. 510. 
 
 332. Evidence admissible to show agency in contract signed in his own name. 
 Lerned v. Johns, N. S. iv. 703. 
 
 333. On a question of the genuinenes of a signature, the comparison of hand- 
 writings is wholly inadmissible. Hagleton v. Union Bank, N. S. xii. 464. 
 
 XII. Of the Proof op Insteuments, Acknowledging. 
 
 334. Acknowledgments of assignments, &c., before a commissioner of deeds, 
 admissible. Sheldon v. Stryker, N. S. iv. 253. 
 
 335. It is sufficient if the certificate be attached to the instrument when oflfered 
 in evidence. Id. 
 
 336. The copy of a deed not in the chain of title is evidence only of the con- 
 tents of the paper, and requires the same proof of execution as the original. 
 Welts V. Jackson Iron Co., N. S. ix. 513. 
 
 337. The execution, attestation, acknowledgment and recording of a deed, is 
 onlv prima, facie evidence of delivery. Id. 
 
 338. The signature of a subscribing witness is not conclusive ; it is only prima 
 facie evidence. Sherwood v. Pratt, N. S. xii. 255. 
 
 339. And parol evidence may be received to contradict it. Id. 
 
428 EVIDENCE. 
 
 340. Records of a town which holds land as a private eorpovation, unless ac- 
 companied by possession, are not admissible to prove title. South Hampton v. 
 Fowkr, N. S. xii, 669. 
 
 341. Irregular execution by one named in bond, he signing on left hand side 
 of page, the place for the witness' signature, and a person not named in bond 
 signing opposite the seal — parol evidence is admissible to show that the former 
 is liable. Richardson v. Boynton, N. S. vi. 314. 
 
 342. When specimens of handwriting, admitted or proved to be genuine, are 
 offered td prove by comparison the genuineness- of the writing in issue, the com- 
 parison can only be made by the jury. Haycock v. Greup, N. S. vii. 529. 
 
 343. To render an instrument, properly acknowledged, admissible in evidence, 
 it is not necessary that the acknowledgment or proof should be taken before the 
 commencement of the action. It is sufficient if the certificate of the officer be 
 indorsed on the instrument when it is offered in evidence. Sheldon v. Stryker, 
 N. S. iv. 2.54. 
 
 344. Ordinarily when a party on trial wishes to avail himself of any instru- 
 ment in writing lost, he should, first, prove that an original instrument was duly 
 executed, and, secondly, that the instrument so executed is lost ; then only can 
 he give evidence of its contents. pf-eHs v. Jackson Iron Co., N. S. ix. 513. 
 
 345. Where an action is upon a written instrument the execution of which is 
 admitted by the pleadings, there is no issue upon which proof of the instrument 
 may be introduced. Reed v. Arnold, N. S. xii. 596. 
 
 XIII. Stamping. 
 
 346. Where the only objection to the admission in evidence of a certain mort- 
 gage was that it was not properly stamped, and that could not have affected the 
 verdict, it may be stamped after verdict and then judgment entered. Janvrin v. 
 Fogg, N. S. xi. 334. 
 
 347. By the Acts of Congress, an instrument of writing not properly stamped 
 is prohibited from being used as evidence- either in a state or a Federal court. 
 Ckartier Turnpike Co. v. Budge, N. S. xii. 157. 
 
 348. United States stamps are not essential to the validity of a deed, nor to 
 its admissibility in evidence in a state court. Sporrer v. Eifler, N. S. x. 206. 
 
 349. Innocent omission to stamp a note does not make it inadmissible in evi- 
 dence. Tobey v. Chipman, N. S. vii. 64. 
 
 350. An insolvent's bond is in legal proceedings and need not be stamped. 
 McGovern v. Hosbach, N. S. vii. 64. 
 
 351. An unstamped receipt is admissible in evidence where maker testifies it 
 was omitted without fraudulent intent. Emery v. Hobson, N. S. xiv. 399. 
 
 352. When an unstamped instrument may be read in evidence. Beebe v. 
 Eutlon, N. S. vi. 574. , 
 
 353. Where suit is brought on an instrument requiring a stamp, under the Act 
 of July 1 3th 1 866, the instrument may be used in evidence. Black v. Richardson, 
 N. S. xiii. 777. 
 
 XIV. Copies. 
 
 354. To make a copy of a lost instrument admissible, the evidence of the gen- 
 uineness of the original must be of the most positive kind. Krise v. Neason, N. 
 S. X. 797. 
 
 355. V. and 6. executed an agreement, and jointly delivered it to R. to keep; 
 he was the agent of both for that purpose. Id. 
 
 356. R.'s acknowledgment of a paper produced by him as the original, was 
 prim^ facie evidence of its genuineness. Id. 
 
 357. One witness swearing to the handwriting in a paper is sufficient to take 
 it to the jury, although he may be contradicted by any number of witnesses or 
 circumstances. Id. 
 
 358. The question of admissibility for the court is always the prima facies ; 
 the sufficiency is for the jury. Id. 
 
 359. R. died; search amongst his papers was all that- was required to admit 
 secondary evidence. Id. 
 
 360. Where a copy of a written instrument may be used the original may. 
 Eeedv. Arnold, K. S. xii. 596. 
 
 361. A copy of a chattel mortgage, which is not filed in the proper town, is not 
 competent evidence to show title in mortgagee. Evans v. Sprague, N. S. xii. 125. 
 
 362. An objection to such evidence must be specific. Id. 
 
 363. A press copy of a letter is not legal and admissible evidence in the ab- 
 sence of notice to produce the original. Marsh v. Hand, N. S. xi. 461. 
 
EVIDENCE. 429 
 
 364. Congress may prescribe the manner in which copies of the records of 
 the departments may be authenticated. McLane v. Bovee, N. S. xiii. 649. 
 
 365. Where a copy of a lease was duly certified to have been acknowledged 
 before a magistrate and recorded, it was held, that the certificate could not be 
 contradicted by parol evidence. Creigliton y. Ladlee, N. S. vi. 359. 
 
 366. The record of the notary being proved to contain a true copy of the orig- 
 inal note, was admissible in evidence. Ritter v. Singmaster, N. S. xiii. 521. 
 
 XV. Heaesat. 
 
 367. Hearsay evidence ; subject discussed. N. S. xii. 1. 
 
 368. Hearsay testimony to prove that the servants of a railroad were negli- 
 gent is incompetent. R. P. Railway Co. v. Pointer, N. S. xii. 63. 
 
 369. Pedigree and boundary are the excepted cases wherein reputation and 
 hearsay of deceased persons are received in evidence. McCausland y , Fleming, 
 N. S. X. 63. 
 
 XVI. Admissions and Declahations. 
 
 370. It is competent for the assistant United States marshal who took the 
 census for the district, and made the return to the office of the clerk of the courts 
 for the county, when the record does not show the specific locality where the 
 individuals enumerated resided, to testify as to their place of residence. State 
 v. Wagner, N. S. xiii. 106. 
 
 371. The outcries of a person deceased made during the perpetration of the 
 assault which results in death, or upon the approach of the assailant, are com- 
 petent evidence upon the trial of a party charged with the murder of such person, 
 and may be considered by the jury with other circumstances and testimony upon 
 the question of the identity of the accused. Id. 
 
 372. The outcries of another person who was murdered by the same party a 
 few minutes previously, during the perpetration of one and the same burglary, 
 but on another part of the premises, are admitted under lilce circumstances for 
 the same purposes upon such trial. Id. 
 
 373. Such exclamations are competent as part of the res gestte. Id. 
 
 374. Moreover their admission may be distinctly justified for the same reasons 
 which are held to justify the admission of dying declarations. Id. 
 
 375. The contents of the prisoner's pockets found when he is arrested may 
 be put in evidence when there is. testimony tending to show that they or a portion 
 of them came from the recent possession of the deceased or from the locality of 
 the crime. Id. 
 
 376. Articles which a witness identifies as the property of the prisoner, and 
 in his possession shortly before the crime was committed, when found shortly 
 after its perpetration, at the house where the crime was committed, may be 
 offered in evidence. Id. 
 
 STJ . The confession of a prisoner induced by threats or promises-is inadmis- 
 sible. Nicholson V. State, N. S. xiii. 194. 
 
 378. The onus of showing that a confession was not made by inducement is 
 on the prosecutor. Id. 
 
 379. Admissibility of confession is to be determined by the court and not by 
 the jury. Id. 
 
 380. Where two are interested in a transaction the acts and statements of either 
 in regard to it may be put in evidence as showing the quo animo. Beebe v. 
 Knapp et al., N. S. xiii. 457. 
 
 381. Where a witness dies the notes of his testimony before a justice are ad- 
 missible. Brown V. Commonioealth, N. S. xiii. 523. 
 
 382. The dying declarations of a wife are not evidence on the trial for the 
 murder of her husband. Id. 
 
 383. One condition on which the declaration of deceased persons in regard to 
 boundaries is received, is that they had knowledge of them. Hadley v. Howe. 
 N. S. xiii. 649. 
 
 384. Such knowledge must be proved. Id. 
 
 385. Verbal declarations of donor made contemporaneously with the gift are 
 competent to explain it. Eaton v. Cook, N. S. xiv. 327. 
 
 386. Declarations of one in possession of real estate are competent to rebut 
 title of one claiming under him. South Hampton v. Fowler, N. S. xiv. 393. 
 
 387. As to pedigree, are confined to declarations of family. Id. 
 
 388. Of party's ancestor not in possession and since deceased, are inadmissi- 
 ble. Id. 
 
430 EVIDENCE. 
 
 389. Verbal declarations of deceased persons ; subject discussed. N. S. iii. 
 64i. 
 
 390. Plaintiff's declarations. Emerson t. Gas-light Co., K. S. iii. 251. 
 
 391. Communications between an attorney who drew a deed and the grantees 
 therein as to what took place are privileged. Rogers v. Lyon et al., N. S. xii. 
 593. 
 
 392. Declarations of one in possession of property that it is owned by another, 
 are competent eyidence in favor of the owner. Putnam t. Osgood, N. S. xii. 
 595. 
 
 393. The declarations of one partner are not admissible to prove that another 
 is a member of the firm.. Johnson v. GalUvan, N. S. xii. 596. 
 
 394. In a suit by an attorney for his services, he can testify as to admissions 
 made by the defendants of the amount realized by them by his services. Mc- 
 Niel V. Davidson, N. S. xii. 596. 
 
 395. Others besides lawyers can testify as to the value of an attorney's ser- 
 vices. Id. 
 
 396. It is not necessary in order to make dying declarations admissible in evi- 
 dence, that the declarant should state everything constituting the res gestae of the 
 subject of his statement, but only that his statement of any given fact should be 
 a full expression of all that he intended to say as conveying his meaning as to 
 such fact. State v. Patterson, N. S. xii. 647. 
 
 397. What a prisoner says at any time after the commission of the offence is 
 competent against him as admissions. Fralich v. The People, TS. S. xii. 659. 
 
 398. The declarations of a grantor after the grant cannot be received to affect 
 the title of his grantee. Pier v. Duff, N. S. x. 66. 
 
 399. The admission during his tenancy by one under whom plaintiff claims, 
 affects such plaintiff only. Id, 
 
 400. ' Declarations of tenants in common are not admissible against each 
 other. Id. 
 
 401. A declaration or admission, to be admissible in evidence, must be en- 
 tirely voluntary. Phillips v. The People, N. S. x. 125. 
 
 402. On the trial of an indictment for stealing a horse, it is not erroneous to 
 admit evidence of the accused taking a wagon on the same night. Id. 
 
 403. The statements of s, vendor of land made after sale, are not admissible 
 to affect the vendee's title. Gridley v. Bingham, N. S. x. 127. 
 
 404. The declarations of one, of several owners of land, who enters into pos- 
 session, are competent to show such entrv is not adverse. King v. Whalei/, N. 
 S. X. 536. 
 
 405. Admissions are competent against parties, when parol evidence of fact 
 shown thereby would be competent. Keator v. Dimmick, If. S. vi. 121. 
 
 406. Declarations of person in possession as to title, admissible against subse- 
 quent claimants under him. Id, 
 
 407. When inadmissible to defeat title. Id. 
 
 408. Declarations of grantee in respect to time of delivery of deed to him, 
 ■when evidence. Id. 
 
 409. When admissions of a party are conclusive against him. Calanan v. 
 McClure, N. S. vi. 562. 
 
 410. Declarations of party in possession, evidence against himself or privies. 
 Gihney v. Marchay, N. S. vi. 120. 
 
 411. Such declarations incompetent to destroy title of record. Id. 
 
 412. Admissions by party in regard to title, when evidence for his heirs. 
 Spaulding v. Hallenhech, N. S. vi. 316. 
 
 413. Declarations or admissions by assignors about property assigned, after 
 they have lost control thereof, not part of res gestse, are incompetent against 
 assignees. Peck v. Crouse, N. S. vi. 120. 
 
 414. When declarations of assignor's intentions, made in assignee's presence, 
 not evidence. Id, 
 
 415. When assignor's acts, before assignment, evidence of intention in 
 making it. Id. 121. 
 
 416. When judge bound to submit validity of sale, or assignment of goods, 
 to jui-y. Id. 
 
 417. When statements of patient to his physician are evidence for him in an 
 action for a personal injury. Barber v. Merriam, N. S. vi. 120, 
 
 418. When the plaintiff in the course of a trial calls out the declarations of 
 
EVIDENCE. 431 
 
 the defendant, it does not follow that all that was said by defendant can be given 
 in evidence, but only that which tended to qualify that given in evidence by the 
 plaintiif, and no more. Brouner v. Goldsmith et al., N. S. i. 47. 
 
 41i), Though the declarations of a grantor at the time of a conveyance to his 
 sons are admissible to show whether it was an advancement, they must not con- 
 tradict the plain terms of writing. Sandford v. Sandford, N. S. xi. 594. 
 
 420. The declarations of « father, subsequent to the conveyance, when ho 
 could not revoke the deeds, are not admissible. Id. 
 
 421. The evidence of an attorney who drew a will, in accordance with an 
 agreement made at the time, between the testator and his wife, is admissible to 
 prove what was said as to a bequest and the agreement. Id. 
 
 422. The declarations of one of several persons engaged in a concerted attack 
 upon a dwelling, made while the attack is going on, are admissible against all ; 
 otherwise if the attack has terminated State v. Pike, 'S.- S, xi. 661. 
 
 423. An admission by one that he is an agent is evidence of the fact against 
 him. Fisher v. Krutz ^ Campbell, N. S. xi. 773. 
 
 424. Where the only surviving beneficiary named in a mortgage actively aids 
 and assists the mortgagor in selling the property, without mentioning his claim, 
 he will be estopped from setting it up against the purchaser. Bigelow, Adm'x, v. 
 Foss, N. S. xi. 593. 
 
 425. The declarations of the real party in interest, though he is not the party 
 of record, are evidence against him. Id. 
 
 426. On a trial for murder, the prisoner's counsel were about calling witnesses 
 to prove his insanity when he interposed, refused to permit that defence to be set 
 up, discharged his counsel, and submitted his case to the jury without evidence. 
 The counsel remonstrated, and offered to establish his insanity by irresistible 
 proof, but the court overruled their objection, and refused to hear them further in 
 his defence. Held to be error, and that the evidence should have been permitted 
 to go to the jury. State v. Patton, Appellant, O. S. iii. 552. 
 
 427. Plans in trial of land titles. Wood v. Willard, N. S. iv. 573. 
 
 428. Declarations of deceased persons as to boundaries are competent evidence. 
 Id. 253. 
 
 429. Entries by persons since deceased admissible. Wheeler v. Walker, N. S. 
 iv. 505. 
 
 430. The statement of a fact by one of the parties, in the presence of the other 
 and not denied, is admissible as evidence of the fact so stated. Atwood v. Cornwall, 
 N. S. xiii. 230. 
 
 431. Declarations of an obligor shortly after the execution of a note that he 
 had not signed it are admissible, not as evidence thai he had not signed, but to 
 show want of memory and understanding about what he had done. Bouch v. 
 Zehring, N. S. viii. 697. 
 
 432. Under the Act of 1864 of Maryland, making parties to suits competent 
 witnesses, a party cannot offer in evidence his own declarations in his own be- 
 half. Friend v. Hamill, N. S. xt. 58. 
 
 433. Declarations to be admissible as part of the res gestse must be contempo- 
 raneous with some act they serve to explain. State v. Montgomery, N. S. xi. 
 395. 
 
 434. Declarations of a deceased member of a family as to pedigree are always 
 admissible. Jones v. Jones, N. S. xii. 192. 
 
 435. To make dying declarations admissible it is not necessary that declarant 
 should state the whole res gestae of his statement. State v, Patterson, N. S. xii. 402. 
 
 436. A jury is not bound to give equal credit to each part of statement of an 
 accused person. Griswold v. The State, N. S. ix. 262. 
 
 437. The admissions of a party are always evidence against him. Denman v. 
 MeMahin, N. S. xii. 532. 
 
 438. The declaration of a deceased person as to boundaries, though made off 
 the land, is admissible in evidence. Towers v. Silsby, N. S. viii. 502. 
 
 439. Declarations of a vendor, made before sale, are admissible in evidence in 
 a suit where vendee is a party. Randegger v. Ehrhardt, N. S. ix. 714. 
 
 440. Dying declarations inadmissible in a civil suit for the injury. Dailey v. 
 Bailroad Co., N. S. ». 58. 
 
 441. Declarations of one accomplice as evidence against the other. People v. 
 Pitcher, N. S. vi. 634. 
 
 442. It seems the declarations of an assignor for the benefit of his creditors, 
 
432 EVIDENCE. 
 
 made prior to the assignment, are evidence against the assignee. McBride r. 
 Dorman, N. S. vi. 736, 
 
 443. When the' plaintiff in the course of a trial calls out the declarations of 
 the defendant, it does not follow that all that was said by defendant can be 
 given in evidence, but only that which tended to qualify that given in evidence 
 by the plaintiff, and no more. Brouner v. Goldsmith, TS. S. i. 47. 
 
 444. When admission of signature to be genuine will estop defendant from 
 denying same. Bank v. Keene, N. S. vi. 249. 
 
 445. One will be barred by adoption of signature if made with knowledge of 
 its forgery. Id. 
 
 446. What acknowledgment-of liability for acts of co-administrator is conclu- 
 ^ sive. Wells v. Mitchell, N. S. vi. 508. 
 
 447. Where no evidence of non-access at the time of conception was given, the 
 declarations and acts of the husband and wife at the birth of the child, and subse- 
 quently, were inadmissible to prove it illegitimate. Page v, Dennison, 0. S. v. 
 469. 
 
 448. Admissions of a grantor held to be evidence as part of res gestse against 
 plaintiffs who were identified in interest. Spavlding v. Hallenbeck, N. S. ii. 763. 
 
 449. Declarations in a will are evidence of testator's domicile. Wilson v. Terry, 
 N. S. iv. 704. 
 
 450. Evidence in contested elections. People v. Pease, N. S. iv. 185. 
 
 451. If the tenant in a writ of entry disclaims, he is held to admit defendant's 
 title to the part disclaimed. Wells v. Jackson Iron Co., N. S. xi. 663. 
 
 452. Husband's declarations not admissible to prove property in wife. Par- 
 vin V. Capewell, N. S. ill. 575. 
 
 453. That the former declaration of a witness whose credibility is attacked 
 may be given in evidence to corroborate his testimony in certain cases is well set- 
 tled, though whether they are admissible in all cases, the authorities are conflict- 
 ing, and the question is here expressly waived. Held, that evidence showing 
 that a confederate of the prisoner and the prisoner had money in their posses- 
 sion immediately after the murder, similar to the money both in amount and 
 description, known to have been in possession of the murdered man, coupled 
 with the fact that both the prisoqer and his confederate were destitute of money 
 prior to the murder, is admissible. Gates v. The People, 0. S. ii. 671. 
 
 454. Statements of an agent, when admissible against principal. As)imore v. 
 Steam-totving Co., N. S. xiv. 699. 
 
 455. Statements made by the driver of the horse the day after the journey not 
 admissible against party hiring. Ruggles v. Fay, N. S. xiv. 260. 
 
 456. Acknowledgment in policy not conclusive of receipt of premium. Shel- 
 don V. Atlantic Ins. Co., N. S. iii. 635. 
 
 457. Statements by debtor made after insurance not admissible against assured. 
 Rawls T. Ins. Co., N. S. iii. 168. 
 
 458. Declarations of ticket agent made after selling the ticket are admissible 
 as evidence of passenger's good faith in claiming right to ride, Vankirk v. P. 
 Railroad Co., N. S. xiv 462. 
 
 459. In an action for breach of promise defendant may give evidence of plain- 
 tiff's admissions that she did not care for him, though made after defendant's final 
 refusal to marry her. Miller v. Rosier, N. S. xiv. 700. 
 
 460. The distinct admission of an existing indebtedness presumes a valid in- 
 debtedness. Watson V. Stem, N. S. xiv. 526. 
 
 461. Confessions made after conversations advising a confession, admissible 
 in evidence. Commonwealth y. Tvckerman, N. S. iii. 184. 
 
 462. The principle is not estopped by the declarations of the agent as to his 
 authority. Fish v. Davis, N. S. xi, 719. 
 
 463. Whose declarations are admissible to prove marriage and legitimacy. 
 Blackburn v. Crawfords, N. S. v. 510. 
 
 464. Statement of defendant on trial for a criminal offence. Defoe v. People, 
 N. S. xi. 525. 
 
 465. Declarations of the husband as to property after title to the same is vested 
 in the wife, are not competent evidence against her. * Gillespie v. Walker, N. S. 
 jx. 515. 
 
 466. Contemporaneous conversations and agreements are inadmissible in an 
 action on a written contract, for the purpose of showing the meaning or intention 
 of the parties. Pilmer v. Bank, N. S. iv. 336, 
 
EVIDENCE. 433 
 
 467. The admissions of one partner are evidence against the others in a bill 
 against all for partnership liabilities. JRuckman v. Decker, N. S. xii. 468. 
 
 468. The declarations of each partner to the fraud are evidence against the 
 others, though made in their absence. Lincoln v. Clajlin, N. S.' viii. 250. 
 
 469. The declarations of an agent are not per se evidence of agency. Na- 
 tional Mechanics' Bank v. National Bank of Baltimore, N. S. xii. 51. 
 
 470. The statements of an agent are admissible to charge the principal only 
 ■when they are part of the res gestte. Whiteside v. Margarel, N. S. x. 122. 
 
 471. It is a preliminary question for court, whether agency is sufficiently 
 proved to admit agent's acts in evidence. Cliguot's Champagne, S, S. v. 508. 
 
 472. Admissions of principal as evidence against sureties. Bank v. Smith, N. 
 S. Ti. 511. 
 
 473. The sayings of one partner are no evidence against another in an issue 
 of partnership or no partnership. Sankeyy. Ball, N. S. xi. 335. 
 
 474. Evidence of an agent having acted as principal in receiving settlement 
 with different persons is admissible. Morehead v. Murray, N. S. ix. 445. 
 
 475. In a question as to E. being a partner, H.j of the firm of H. & E., tes- 
 tified to J. being a partner, and that E. asked for the books, and said he had as 
 much interest as J. Held, that the books of H. & E. were admissible in evi- 
 dence. Frick v. Barbour, N. S. x. 407. 
 
 476. The declarations of an agent are admissible against his principal, if made 
 in the execution of the agency. Earle v. Grout, N. S. xiii. 709. 
 
 477. In an action by husband and wife for personal injuries to the wife, the 
 defendant proved that the husband in presence of the wife said that the infirm- 
 ity was caused by overwork. Held, that it was competent for the plaintiff' to 
 show by the same witness that the wife denied it. Lindsey and Wife v. Danville, 
 N. S. xii. 730. 
 
 XVII. Personal Identity. 
 
 478. Identity of name is evidence of identity of person. Moug v. Benedict, 
 N. S. xiii. 457. 
 
 479. The possession of the record of a judgment rendered by a justice gives 
 no room for the presumption that the holder is the party plaintiff. Bennett v. 
 Libheart, N. S. xiii. 457. 
 
 480. It cannot be assumed as a legal presumption that where the initials and 
 family name are the same the persons are identical. Id. 
 
 481. The testimony of another prisoner, that the defendant confessed his guilt 
 through the soil pipes, and he knew him from his voice, is admissible. Brown 
 V. Commonwealth, N. S. xiv. 581. 
 
 482. A photograph testified to be like the body is pi'operly submitted to the 
 jury. Udderzook v. Commonwealth, N. S. xiv. 583. 
 
 483. Photography is to be judicially noticed as a means of producing correct 
 likenesses. Id. 
 
 484. G. being in the habit of becoming intoxicated, proof tliat one called W. 
 had same habit, is evidence on the question of identity of G. and W. Id. 
 
 485. Personal identity may be established by circumstantial evidence. Luke 
 T. Countu of Calhoun, N. S. xiv. 397. 
 
 XVIII. Pakol Evidence op Contents of "Written Instruments. 
 
 486. Parol evidence to vary terms of articles of co-partnership inadmissible. 
 Brett V. Chillas, O. S. iii. 407. 
 
 487. The rule as to admissibility of parol evidence to vary a written agree- 
 ment only refers to the kind of evidence necessary to prove the agreement, and 
 if it is admitted on the trial or by the pleadings, or proved by parol evidence, 
 the rule is waived and the agreement is as operative as if proved by writing. 
 Davis V. Goodrich, N. S. xii. 402. 
 
 488. A written contract cannot be varied by parol testimony of a different 
 oral agreement previously made. Bell v. Woodman, N. S. xii. 660. 
 
 489. Parol evidence to show that property not answering the written descrip- 
 tion in a mortgage was intended to be included, is inadmissible. Ilutton v. Arnelt, 
 N. S. ix. 775. 
 
 490. Evidence to explain a written contract is only admissible when words 
 have been employed which are ambiguous or of equivocal meaning. North 
 American Ins, Co. v. Throop, N. S. xi. 462. 
 
 28 
 
434 EVIDENCE. 
 
 491. Evidence of a parol agreement alleged to have accompafiied the delivery 
 of a deed, and varying its terms, is inadmissible. Beers v. Beers, N. S. xi. 531. 
 
 492. The admission of parol evidence to contradict a note and prove conditions 
 not expressed therein Is error. Lestei v. Fowler, N. S. xi. 331. 
 
 493. Conversation held by the parties to a written contract at the time it was 
 made, is admissible to prove that the writing was not the agreement. Hoag v, 
 Owen, N. S. xi. 58. 
 
 494. The plaintiff, in an action of trespass, had released to the defendant, a 
 plank-road company, the right of passage over the locus in quo, for the con- 
 struction and use of the road. The release was in writing and in the usual form. 
 Held, that parol evidence was not admissible on his part to show that the release 
 was signed by him on the express condition that it was to be binding only in case 
 the road should be located on a particular route, and that it was not so located. 
 Kennedy v. Erie ^ Watishurgh Plank-road Co., 0. S. iv. 440. 
 
 495. Articles of co-partnership having been formally executed, it is not com- 
 petent for one partner to prove by parol that a consideration was to be paid by 
 the other for making the contract, other than appears in the instrument, there 
 being no allegation of mistake or fraud in preventing the insertion of the stipula- 
 tion. Brett V. Chillas, O. S. iii. 407. , 
 
 496. When a plaintiff introduces secondary evidence of a bill of lading, the 
 presumption is that he satisfied the court that he could not procure either of the 
 originals. Dyer v. Fredericks, N. S. xiv. 458. 
 
 497. He cannot afterwards object to the introduction of parol testimony by 
 defendant, to rebut his evidence. Id. 
 
 498. It is competent to show by parol evidence the contents of a lost record. 
 Ferguson V. Tutt et al., N. S. xi. 270. 
 
 499. Where' it was proved that a letter in the possession of a third person, who 
 was out of the country at the time of the trial, had been shown to and read by a 
 party to the suit, parol proof of its contents is admissible. Tucker et al. v. 
 Woolsey et al, N. S. xii. 596. 
 
 500. In an action on a wrftten contract, it is competent to show by parol evi- 
 dence that the words used therein were used in different significant sense. Pil- 
 mer v. Bank, N. S. iv. 336. 
 
 501. Parol evidence is admissible to show for what consideration and in what 
 manner a grantee agreed to pay for the land conveyed to her by deed. Seaman 
 V. Hershrouck, N. S. i. 311. 
 
 502. A deed containing the same description as the articles, but imperfect, is 
 admissible in evidence, in suit to recover the purchase-money. Negley v. Lind- 
 sey, N. S. xi. 193. 
 
 503. Parol evidence not admissible to contradict recital on justice's docket. 
 Facey v. Fuller, N. S. v. 252. 
 
 504. It is always a question addressed to the discretion of the court to deter- 
 mine whether the basis has been laid by proving the loss or destruction of a 
 record, to let in parol proof that such record once did exist. Mays v. Moore, 0. 
 S. iv. 444. 
 
 505. Parol evidence of an agreement between the railroad company and the 
 commissioners of the county, that the county should not be called upon for the 
 interest, is inadmissible to affect the right of the holder of the coupons to recover. 
 McCoy V. County of Washington^ 0. S. vii. 193. 
 
 506. Semble, that secondary evidence is admissible of the contents of a private 
 document in the possession of a party who is beyond the jurisdiction of the court 
 and who refuses to produce it. But the mere demand for the document made by 
 a stranger, who does not disclose his object in making it, is insufficient to render 
 the evidence admissible. Boyle v. Wiseman, O. S. iii. 700. Reported in full. 
 Id. 756. 
 
 507. In order to introduce secondary evidence of the contents of a lost paper, 
 it is only necessary to establish a reasonable presumption of its loss or destruc- 
 tion ; and this presumption is held to be established when the party shows that 
 in a reasonable degree he has exhausted all the sources of information and means 
 of discovery wliich the nature of the case suggests, and which were accessible to 
 him. Harper v. Scott, 0. S. ii. 319. 
 
 508. Parol evidence of what parties to a written contract intended to express is 
 not admissible. McGuire v. Stevens, N. S. ix. 484. 
 
 509. One who has voluntarily destroyed a written document cannot testify to 
 
EVIDENCE. 435 
 
 its contents in an action by himself founded on it, without first negativing the 
 suspicion of fraud from his act. Count Johannes r. Bennett, N. S. ii. 767. 
 
 510. Parol evidence is admissible to show that a paper produced on trial is not 
 the genuine paper called for. Gllmore v. Whitclter, N. S. iii. 251. 
 
 XIX. Character op Pasties. 
 
 511. Evidence of the good character of a defendant is always admissible in a 
 criminal case. People v. Garbuti, N. S. vii. 554. 
 
 512. An vmbleraished good character may not only raise a doubt as against the 
 clearest case upon the other evidence, but may bring conviction of innocence. Id. 
 
 513. The exclusion of evidence of the official character of the defendant was 
 error. Cummings v. Diggs, N. S, x. 196. 
 
 514. Of general character only admissible in civil cases when it is directly in 
 issue- TlVip/ii V. Jiciiee, N. S. T. 318. 
 
 515. Hence, in civil suit, evidence of good character of defendant is not ad- 
 missible, though plaintiff's testimony virtually charges defendant with the crime 
 of embezzlement. Id, 
 
 516. Evidence of defendant's reputation for wealth is admissible in an action 
 of slander. Stanwood v. M'hitmore, N. S. xiv. 463. 
 
 517. The character of the deceased as a violent, turbulent, bloodthirsty man, 
 when it qualifies, explains, and gives point and meaning to his conduct and tends 
 to produce in the mind of the slayer a reasonable belief of imminent danger, is 
 admissible evidence for the defendant ; and there are cases also in which it may be 
 looked to, in determining the amount of provocation, and thus fixing the degree 
 of the homicide, but the evidence in this case does not justify its admission on 
 either of these grounds. Franklin v. The State, 0. S. v. 722. 
 
 XX. Usage akd Custom. 
 
 518. Evidence of a local custom is admissible to Supply details in a contract, 
 either oral or written, as to which the contract itself is silent, or to show that 
 
 provincialism and technicalities of science and commerce have acquired a known, 
 fixed and definite meaning, different from their ordinary import ; or where such 
 technicalities, unexplained, are succeptible of two or more reasonable construc- 
 tions ; but it cannot be received to contravene any positive requirement of the 
 law, any principle of public policy, or an express contract, whether oral or written, 
 nor to give to plain and unambiguous words or phrases a meaning different from 
 their natural import ; and it is therefore inadmissible to show that a stipulation 
 in a contract of liiring, that the hirer was to " lose the negro's lost time," " re- 
 lated to time lost by sickness or running away, and not to time lost in consequence 
 of the negro's death," Barlow v. Lambert, 0. S. v. 171. 
 
 519. If evidence is offered as a whole, when a portion of it is illegal, the court 
 may, on objection, exclude the whole of it. Id. 
 
 520. T. & M., brokers, employed by H., sold on his account to C, M. & Co., 
 ■who were also brokers, ten tons of linseed oil, on the 14th of August 1855. 
 The following sold note was sent by T. &. M. to H. : — 
 
 " Sold to "Dale, Morgan & Co., for account of Mr. Charles Humfrey, ten tons 
 of linseed oil, of merchantable quality, at, &c. (stating the terms.) 
 
 " Thomas & Moore, Brokers. 
 " Quarter per cent., brokerage to D., M. & Co., and a half to us." 
 
 On the same day the following bought note was sent by D., M. & Co. to T. & 
 M. :— 
 
 " Sold this day, for Messrs. Thomas & Moore, to our principals, ten tons of 
 linseed oil, of merchantable quality, at, &c. (stating the same terms.) 
 
 " Dale, Moroan & Co., Brokers. 
 "Quarter per cent, to D., M. & Co." 
 
 D., M. & Co. afterwards declined to accept the oil ; and on the 28th of Febru- 
 ary 1856 they informed H. of the name of their principal for whom they had 
 purchased. H. afterwards brought an action against D., M. & Co. for the price 
 of the oil, and at the trial parol evidence was admitted of a usage of trade in the 
 city of London by which a broker making such a contract was held personally 
 liable as purchaser, if he did not at the time of the contract disclose the name 
 of his principal. Held — 
 
 (1.) That there was clear evidence of a contract of bargain and sale between 
 the plaintiff as seller and the undisclosed principal of the defendants. 
 
436 EVIDENCE. 
 
 (2.) That the evidence of the usage of trade, whether treated as explaining 
 the language of the written contract or adding to it a tacitly implied incident, 
 was properly admissible, and rendered the defendants themselves liable under the 
 contract. Humfrey v. Dale, 0. S. v. 551. 
 
 521 . A custom among insurance companies as to an agent's property in policies 
 procured by him may be introduced to explain such contract. Id. 
 
 522. Of a general and well-known usage among the banks of a city is ad- 
 missible in an action against one of the banks. Chesapeake Bank v. Swain, N, 
 S. viii. 754. 
 
 XXI. "Witnesses. 
 
 523. Of experts. Emerson v. Lowell Gaslight Co., N. S. iii. 251 . 
 
 524. Of expert, admissible to prove a machine not constructed in workmanlike 
 manner, without proof of particular defects. Curtis v. Gano, N. S. iii. 635. 
 
 525. Where a number of articles are sold together, opinions of witnesses will 
 not be received as to value of some in order to fix the value of others in action 
 for the conversion of the latter. Wells v. Kelsey, N. .S. ii. 631. 
 
 526. Examinations of witnesses in court of admiralty. The Glory, 0. S. i. 
 53. 
 
 527. The opinion of witnesses is no evidence. In re Sale of Infants' Lands, 
 N. S. X. 278. 
 
 528. Opinions of witnesses are not competent to fix a price for the use of 
 credit. Perrine v. Ilotchkiss, N. S. x. 345. 
 
 529. Telegraphic communications are not privileged, and a telegraphic operator 
 is bound to testify to the contents of a message. State v. Litchfield, N. S. x. 
 376. 
 
 530. Where a co-defendant in a criminal case turns state's evidence and has 
 tried to convict others by proof also convicting himself, he will be held to have 
 waived all privilege of refusing to answer as to any facts bearing on the issue. 
 And this waiver extends to all communications made to his counsel, so as to 
 make both himself and his counsel compellable to disclose such communications. 
 Hamilton v. People, N. S. xiii. 679. 
 
 531. Party may explain how he understood an oath to a bill in chancery. 
 Whitcher v. Morey, N. S. vii. 187. 
 
 532. Competency of witnesses — exclusion for interest — subject discussed. N. 
 S. iv. 74. 
 
 533. Jury may believe prisoner's statement, allowed by statute, in preference 
 to witnesses. People v. Durant, N. S. v. 59. 
 
 534. When party may contradict his own witness. People v. SJceekam, N. S. 
 vii. 320. 
 
 535. Where witness was introduced as an expert in judging of the genuine- 
 ness of signatures, it was held proper for the party calling him to inquire his 
 residence, his occupation, and the length of time he had been in business to 
 qualify him to test signatures. Tyler v. Todd, N. S. x. 627. 
 
 536. Distinction between witness to discredit prosecutrix and witness to 
 collateral issue. Reg. v. Rorke, 0. S. ii. 506. 
 
 537. Opinions of witnesses not experts cannot be received on questions of 
 sanity. State v. Jones, N. S. xi. 661. 
 
 538. And in capital cases declarations of prisoner of his sanity will not be a 
 bar to prevent his counsel from proving his insanity. State v. Patten, 0. S. iii. 
 552. 
 
 539. Proof that witness had been in correspondence with writer of letter offered 
 in evidence for more than a year, and thought the signature genuine, is sufficient 
 to receive it. Smith v. Amazon Ins. Co., N. S. xiii. 589. 
 
 540. Testimony of persons, other than experts. Lincoln v. Manuf. Co., N. S. 
 V. 125. 
 
 541 . A divorced wife is incompetent to testify in behalf of her former husband. 
 Rea V. Tucker, N, S. ix. 642. 
 
 542. Evidence in support of the general character of witnesses is not competent 
 until their general character has been assailed. Every witness puts his character 
 in issue, but until evidence tending directly to its impeachment is produced, the 
 law presumes it to be good, and therefore testimony to prove it so is superfluous 
 and irrelevant. Wertz v. May, O. S. i. 632. 
 
 543. A witness who is executor and residuary legatee of his father, who had 
 been assignee for creditors of a person under whom the defendant, in an action 
 
EVIDENCE. 437 
 
 of trover for fixtures, claimed the property, and had sold it with the assent of 
 the plaintiff, is not an incompetent witness for the defendant. Harlanr. Harlan, 
 O. S. i. 43R. 
 
 544. The testimony of a person examined as a witness before a coroner's jury, 
 such person not being at the time under arrest, or charged with crime, may be 
 given in evidence against him, on his subsequent trial for the alleged murder of 
 the deceased. Hendriclcson v. The People, 0. S. ii. 531. 
 
 545. The witness in such case stands on the same footing as the witness ex- 
 amined on the trials of issues. He is not bound to criminate himself, and may 
 declme to answer as to whatever tends to do so ; but if he fails to avail himself 
 of his privilege, his answers will be deemed voluntary, and may be given in evi- 
 dence against him. It is only when he is compelled to answer, after having de- 
 clined to do so, that the answer will be deemed compulsory, and will be excluded. 
 Id. 
 
 546. The testimony of other builders as to the proper height to run a wall, is 
 admissible as an expert's opinion. Haver v. Tenney, N. S. xiv. 55. 
 
 547. To render an expert's testimony admissible, his pursuit must be one of 
 science, skill, trade or the like. Hamilton v. Railroad Co., N. S. xiv. 55. 
 
 548. A brakeman is not an expert. Id. 
 
 549. Experts can make comparisons between the writing in dispute and others 
 which are proved to be genuine. State v. Hastings, N. S. xiv. 122. 
 
 550. After evidence of the genuineness of a writing has been given, experts 
 may be called to attack or support it. Balleniiue v. White, N. S. xiv. 755. 
 
 551. Experts cannot be examined to prove that a person in the habit of using 
 intoxicating drinks is insurable. Bowls v. Insurance Co., N. S. iii. 168. 
 
 552. An expert ought not to be permitted to give an opinion as to the genuine- 
 ness of a signature upon a comparison of signatures not before the court. Tjler 
 V. Todd, N. S. X. 627. 
 
 553. Where an expert testified as to his opinion from a comparison of signatures 
 made out of court, it was held, that the opposing party had a right to object to 
 his evidence. Id. 
 
 554. Opinions, not of experts, sometimes admissible from necessity. Whittier v. 
 Franklin, N. S. v. 704. 
 
 555. Evidence of the secretary of an insurance company, as an expert, to 
 show the meaning of terms in a policy, is not admissible. Washington Ins. Co. 
 T. Davison, N. S. ix. 449. 
 
 556. In action against a surgeon for negligence and unskilfulness, in conse- 
 quence of which the plaintiff lost his hands and feet, and where the evidence is 
 conflicting, medical men called as scientific witnesses to give their opinions can- 
 not be asked questions, the answers to which involve the point which the jury 
 have to determine, viz. : the negligence, &c., of the defendant; as, to what they 
 would attribute the loss of the plaintiff's hands and feet. Kay v. Thompson, N. 
 S. X. 594. 
 
 557. The opinions of experts as to the necessity of a jettison are competent. 
 Price V. Hartshorn, N. S. x. 796. 
 
 558. The opinion of a witness not an expert, as to the value of a stock of 
 goods in a store, is inadmissible. Taylor v. Insurance Co., N. S. xii. 255. 
 
 559. It is for the judge to decide whether one is an expert and is not subject 
 to revision. Id. 
 
 560. Mere opinions are not evidence. McNielv. Davidson, N. S. xii. 596. 
 
 561. Evidence that defendant contracted with another person to do the same 
 work for which plaintiff sues is no defence. Bell v. Woodman, N. S. xii. 660. 
 
 562. The admission of a lawyer who had no more experience than lawyers 
 generally to testify as an expert in a question of handwriting, was erroneous. 
 ElHngwood v, Bragg, N. S. xiii. 57. 
 
 563. The rulings of a judge at nisi prius as to an expert will not be revised. 
 Id. 
 
 564. The opiniqns of persons not witnesses, throueh whose hands a treasury 
 note has passed, as to its genuineness, are not admisfibls in evidence in a suit 
 brought bv one who has taken such note to recover its value. Atwoodv. Corn- 
 wall, N. S. xiii. 230. 
 
 565. Bankers are competent to testify as to the genuineness of a treasury 
 note. Td. 
 
 566. When the matter of inquiry is such that inexperienced persons are un- 
 
438 EVIDENCE— EXCEPTIONS, BILL OF. 
 
 likely to prove capable of forminfc a correct judgment upon it, the opinion of 
 experts is admissible. Davis v. The State, N. S. xiii. 2.55. 
 
 567. The evidence of medical experts is admissible to show how in their opin- 
 ion certain wounds were inflicted upon the head of a murdered man. Id, 
 
 568. The provision in Wisconsin statutes that no physician shall testify un- 
 less ho has a diploma, only applies when such a person is called as an expert. 
 Montgcrmeri/ V. Town of Scott, N. S. xiii. 777. 
 
 569. A physician examined as an expert may testify as to the probable effects 
 of injuries upon the future health. Id. 
 
 570. A physician testifying that both bones of the plaintiff's leg were broken 
 is not giving an opinion as an expert. Id. 
 
 571. There is no established form of question to experts. Bunt v. GasUght 
 Co., N. S. iv. 186. 
 
 572. Keeper of horses competent as expert to give opinion as to value. Mc- 
 Donald y. Christie, N. S. iv. 191. 
 
 573. Of experts as to value of horse, not admissible. Low v. Railroad Co., 
 N. S. iv. 438. 
 
 574. Opinion of expert, by comparison of handwriting by juxtaposition, is ad- 
 missible. Woodman v. Dana, N. S. vi. 186. 
 
 575. Expert only competent to give opinion by comparison of hands by juxta- 
 position. Id. 
 
 576. When non-experts can give opinion. Id, 
 
 577. How such opinions are given, and the knowledge necessary on the two 
 cases. Id. 
 
 578. Testimony of expert to prove signature. State v, SJiinborn, N. S. vi, 379. 
 
 579. Medical witness cannot give opinion, where he has no means of ascer- 
 taining facts upon which it is asked. Millard v. Brown, N. S. vi. 378. 
 
 580. The opinion of an expert must be predicated on facts proved or admitted, 
 or such as appear in evidence hypothetically stated. Rouch v. Zehring, N, S. 
 viii. 697. 
 
 581. In an action against the draw-tender of a bridge to recover damages sus- 
 tained by reason of his neglect, to have due regard and caution for the public 
 travel in performing his duties, the opinion of another draw-tender as to the 
 necessity of keeping a gate shut and lanterns lighted while the draw is open in 
 the night time, is inadmissible. Howell v. Wright, N. S. i. 436. 
 
 XXII. ClEOUMSTANTIAI, EVIDENCE. 
 
 582. Conviction upon circumstantial evidence, subject discussed. N. S. vii. 705. 
 
 583. Where evidence is circumstantial, a wide latitude should be allowed to 
 defendant in cross-examination to show the whole bearing of the facts alleged. 
 Hamilton v. The People, N. S. xiii. 679. 
 
 XXIII. Peesdmptioks. 
 
 584. Presumption on the subject of legitimacy examined historically and on 
 principle. Page v. Dennison, 0. S. v. 469. 
 
 585. A verbal agreement, to be effectual as a waiver, variation or change in 
 the stipulations of a prior written contract between the parties, must rest upon 
 some new and distinct legal consideration, or must have been so far executed and 
 acted upon by the parties that a refusal to carry it out would operate as a fraud 
 upon one of the parties. Thurston and Hays v. Ludwig, 0. S. v. 606. 
 
 XXIV. Telegkams. 
 
 586. Evidence that a telegram was sent to A. at a certain place, and an 
 answer received from the place, purporting to come from A., is not competent 
 proof that he was there. Howley y. Whipple, N. S. ix. 514. 
 
 EXCEPTIONS, BILL OF. 
 
 1. Where a party, at the trial of a cause, takes an exception to the ruling or 
 to the charge of the court, and puts the same in writing before the jury deliberate, 
 the judge is bound to seal the exceptions, without regard to their nature or mate- 
 riality. Conrow V. Stroud, N. S. vi. 298. 
 
 2. If he decline to seal them, a writ under the statute of Westminster 2d will 
 be awarded, commanding him to confess or deny the exceptions, and if his re- 
 turn confess them he will be compelled to seal them. Id. 
 
 3. How paper not in the body of bill of exceptions constituted part thereof. 
 Leftwitch v. Lecanu, N. S. vi. 442. 
 
 4. Beqaisites therefor. Id. 
 
EXCEPTIONS, BILL OF— EXECUTION. 439 
 
 5. Motion for a new trial no waiver of exoeptionsi, United States v. Dashiell, 
 N. S. vi. 442. 
 
 EXCESSIVE DAMAGES. Subject discussed in Fletcher v. Tayleur, 0. S. iv. 319. 
 
 EXECUTION. 
 
 1. Where goods of separate owners have been mixed, an officer attaching 
 goods of one of them must ascertain, if he can, what part belongs to each. 
 Carlton v. Davis, N. S. iv. 119. 
 
 2. Law granting a stay, notwithstanding a waiver, is unconstitutional. Lewis 
 T. Lewis, N. S. iv. 254. 
 
 3. Statutory notice to executor of decedent-defendant to be given of the exe- 
 cution, otherwise sale void — burden of proof. Ransom v. Williams, N. S. iv. .573. 
 
 4. Defective levy — disagreement of certificate and return, as to time of record. 
 Ellison V. Wilson, N. S. iv. 573. 
 
 5. A temporary track owned by the cohtractors who built a railroad, is per- 
 sonal property and may be seized and sold on execution. Fijield v. Maine Cen- 
 tral Railroad Co., N. S. xiv. 200. 
 
 6. Delivery can be made by the officer without disturbing the track. Id. 
 
 7. Trover would not lie against the railroad company for using the track while 
 they had no notice of the change of possession. Id. 
 
 8. Under an execution a leasehold can only be seized and held as real estate. 
 Titusville Novelty Iron Works' Appeal, N. S. xiv. 755. 
 
 9. The sheriff is no more liable than on a levy on real estate. Id. 
 
 10. The description of the premises indorsed on the writ is a good levy. Id. 
 
 11. An inaccurate levy maybe explained by oral evidence. Id. 
 
 12. A constable's sale of personal property which is not present and subject 
 to inspection is invalid. Guskill v. Aldrich, N. S. xiii. 195. 
 
 13. Where an execution-creditor purchases at execution-sale, and 'his judgment 
 is subsequently reversed and restitution awarded, the title revests in the execu- 
 tion-debtor ; but where, before the reversal, the execution-creditor conveys to a 
 stranger who purchases in good faith, he will hold the title unaffected by the 
 reversal. Vogler v. Montgomery it al., N. S. xiii. 244. 
 
 14. An exception to this rule is wliere tlie property sold is one that is exempt 
 from sale by the Homestead Act. In such case the purchaser acquiring no title 
 can convey none even to a stranger. Id. 
 
 15. Individual partners are entitled to exemption out of partnership assets. 
 Howard v. Jones and Starke, N. S. xiii. 457. 
 
 16. The right of exemption is an incident of ownership as long as the owner 
 chooses to exert it and the property is within the control of the court. Id. 
 
 17. A widow who supported herself and daughter by keeping a boarding-house 
 at G. in Connecticut, owning a quantity of furniture suitable for a boarding-house, 
 took a furnished house for a year in the city of New York, and went there to 
 keep boarders, intending to return to G. at the end of the year and resume her 
 business there. Her furniture was stored in the meantime in G., and while so 
 stored was attached by a creditor. Held — 
 
 (1.) That the furniture, if otherwise exempt, did not become open to attach- 
 ment by reason of its being stored and not in actual use. 
 
 (2.) That the furniture was not exempt as being necessary for the use of her 
 boarders, nor on the ground that tlie boarders were a part of her family. 
 
 (3.) That tlie inquiry is, what was necessary for the personal comfort of the 
 family, as such ? but that the term " family" in this case was not limited to the 
 mother and daughter alone, but, as she was keeping boarders, might properly 
 include a servant, and in any case would include a visitor, or a dependent rela- 
 tive who was living in the family. 
 
 (4.) That in determining what was necessary household furniture, her occu- 
 pation might properly be considered, and if her keeping boarders made it neces- 
 sary for her to have more furniture for her personal use, as an additional bureau, 
 or other like convenience, such additional furniture would be exempt. Weed v. 
 Dayton, N. S. xiii. 603. 
 
 18. A debtor cannot by an executory contract, such as a stipulation in a pro- 
 missory note, waive the benefit of the state exemption laws, so as to estop him- 
 self from subsequently claiming the exemption. Moxley v. Ragun et al., N. S. 
 xiii. 743. 
 
440 EXECUTION. 
 
 19. Pi. fa. te.sted and issued after death of judgment-debtor is void. Mitchell 
 V. St. Maxent, N. S. vi. 440. 
 
 20. Same, where proceedings commenced by attachment against property. 
 Id. 
 
 21. A constable has such an interest in property upon which he has levied as 
 enables him to maintain an action to recover possession against a purchaser 
 after the levy. Rue v. Perry, TS. S. xii. 53. 
 
 22. The rule justifying the seizure of property under executions good on their 
 face, but void for want of jurisdiction, is one of protection merely. Id. 
 
 23. An officer may defend under such process, but cannot maintain an action 
 upon it. Id. 
 
 24. A house erected on ground held under a lease is not a separate chattel, and 
 cannot be severed from the term on an execution. ConMin v. foster, N. S. xii. 
 257. 
 
 25. A sheriff has no power to levy on and sell houses, timber, &c., and sever 
 them from the fee. Id. 
 
 26. Although a sale of a house situated on leased ground confers no title, still, 
 as it is a cloud on the title, equity will take jurisdiction to remove the cloud. Id. 
 
 27. A court of equity having acquired jurisdiction for any purpose will do com- 
 plete justice. Id. 
 
 28. A sheriff's sale of A.'s property on an execution against another vests no 
 title in the purchaser. Bryant v. Whitcher, N. S. xii. 598. 
 
 29. The English rule of sales in market overt is not in force in New Hampshire. 
 Id. 
 
 30. In Vermont an officer is not liable for property attached on mesne process, 
 which has perished without his fault. Ide v. Fassilt, N. S. xii. 730. 
 
 31. Nor is the receiptor for such property liable. Id. 
 
 32. Where the attaching officer agrees that the goods receipted for are to be 
 delivered at the time and place of sale appointed by him, and makes no appoint- 
 ment, ho cannot sue on the receipt. Id. ' 
 
 33. The sheriff cannot sell lands not previously levied on, under a venditioni 
 exponas. Maupin v. Emmons, N. S. x. 748. 
 
 34. A purchaser at sherifFs sale acquires the interest of the defendant at the 
 date of the judgment, although he may have been adjudged a bankrupt before the 
 sale. Fehley v. Barr, N. S. x. 795. 
 
 35. A judgment under which the land was sold being for purchase-money, 
 there was no exemption under the Bankrupt Law. Id. 
 
 36. The Court of Common Pleas in which a judgment is entered has juris- 
 diction after the defendant has been adjudged bankrupt, and a sale by the sheriff 
 would pass a perfect title to the purchase)'. Id. 
 
 37. A creditor who has recovered a judgment against the executor of a surety 
 may enforce his claim by execution against the property of such executor. 
 Reall, Executor, v. Oshourn, N. S. ix. 319. 
 
 38. An execution levied prior to the return-day will not continue in force for 
 the purpose of a fresh levy on other property, subsequent to the return-day. 
 Donald y. Gronefield, N. S. ix. 321. 
 
 39. Can only be satisfied by a seizure and sale of property, or by payment in 
 coin, or such currency as the plaintiff authorizes the sheriff to receive. McKay 
 V. Smitherman, N. S. ix. 447. 
 
 40. An attachment or levy on the property of a debtor unlawfully arrested, is 
 void. Closson v. Morrison, N. S. viii. 60. 
 
 41. Money or other articles of value with which a prisoner might obtain the 
 means of effecting his escape, are subject to levy or attachment. Id. 
 
 42. It is a question in such cases for the jury, whether the ofBcer making the 
 arrest acted in good faith or not. Id. 
 
 43. A lace shawl is wearing apparel and exempt from execution, but rings 
 and jewelry are liable for debt. Frazier and Wife v. Barnum, N. S. viii. 248. 
 
 44. In an action against a sheriff for a false return of nulla bona, he will not 
 be liable unless the goods pointed out to him really belonged to the defendant, 
 and he has the right to demand that the sureties in the indemnity bond reside in 
 his county. Commonwealth ex rel. Hood v. Vandyhe, N. S. viii. 317, 
 
 45. Prim3, facie all property is liable to execution ; a claim of exemption will 
 not therefore avail an officer sued for neglect of duty in not levying. Baker v, 
 Brintnall, N. S. viii. 380. 
 
EXECUTION. 441 
 
 46. Levy upon property supposed to belong to the maker of a note, is no satis- 
 faction of the judgment, and no defence to an aciion against the indorsee. Rice 
 V. Groff, N. S. viii. 634. 
 
 47. Validity of exemption laws discussed. Note to Mede v. Hand, N. S. t. 
 91. 
 
 48. Exemption of wages from, in Pennsylvania. Smith v. Brooke, N. S. v. 
 122. 
 
 49. Pennsylvania Stay Law of 18th April 1861, unconstitutional, applied to 
 cases in which remedy is suspended for indefinite period. Clarke v. Martin, N. 
 S. T. 191. 
 
 50. " For the term of during the war," is an indefinite period. Id. 
 
 51 . Scire facias sur mortgage is " process" within Pennsylvania Act of April 
 18th 1861. Drexel v. Miller, N. S. v. 255. 
 
 52. Mortgagor, after sale of land may have stay under the act. Id. 
 
 53. Qu. Can his vendee and terre-tenant claim benefit of act ? Id. 
 
 54. Attaching-creditor cannot avail himself of a momentary seisin in his 
 debtor, of a greater estate than at time of attachment. Hazieton v. Lesure, N. S. 
 V. 126. 
 
 55. Attachment in execution on justice's transcript, not void for want of certi- 
 ficate of "no goods." Swanger v, Snyder, N. S. v. 378. 
 
 56. Conduct of garnishee in such case. Id. 
 
 57. In attachment-execution, garnishee's answers are sole fonndation of judg- 
 ment, and if answers set up an assignment of funds, cause must be sent to a jury. 
 Bank V. Gross, N. S. v. 378. 
 
 58. Money coming into garnishee's hands after service and before dissolution 
 of attachment, bound thereby. Mahon v. Kunkte, N. S. v. 379. 
 
 59. Decree awarding money to one of several execution-creditors, conclusive 
 as to all matters involved therein. Noble v. Cope, N. S. v. 378. 
 
 60. Effect of recital in bond of indemnity. Id. 
 
 61. Equitable interest in a vessel may be set up against execution-creditor in 
 sheriff's interpleader, notwithstanding Act Congress, July 29th 1850, Richard- 
 son V. Montgomery, N. S. v. 187. 
 
 62. Interest upon judgment to be computed to time when levy on land com- 
 pleted. Bucknani v. Lothrop, N. S. V. 186. 
 
 63. Evidence thereof. Id. 
 
 64. Appraiser's fees. Id. 
 
 65. Agreement to enforce execution upon certain specified property only, is 
 valid and binding. Whitney v. Ins. Co., N. S. v. 126. 
 
 66. It is fraud in law to permit goods levied on to remain in possession of de- 
 fendant and be sold by him as before, and such execution will be postponed to 
 subsequent one. Parys ^ Co.'s Appeal, N. S. ii. 312. 
 
 67. Attachment of lands in hands of apparent owner, but real mortgagee — 
 unrecorded defeasance. Columbia Bank v. Jacobs, N. S. ii. 126. 
 
 68. Misdescription of land levied upon. Steel v. Steel, N. S. ii. 254. 
 
 69. Machines exempt from attachment in Massachusetts. Daniels v. Hay- 
 ward, N. S. ii. 446. 
 
 70. Goods sold on process and purchaser pays the money to the creditor, sheriff 
 may have bill in equity against creditor for his claim. Barker v. Barker, N, 
 S. vii. 253. 
 
 71. Officer may deduct expenses of keeping and selling goods before apply- 
 ing balance to satisfaction of the execution. Baldwin v. Hatch, N. S. vii. 446. 
 
 72. Officer not bound by taxation of his fees in suit to which he is not party, 
 but ahter as to party. Id. 
 
 73. Where the use and occupancy of land was devised to one during his natu- 
 ral life, and a creditor levied upon his estate, and had it set off by appraisal of 
 his whole interest, the levy was good. McClure v. Melendy, N. S. iii. 126. 
 
 74. Creditor purchasing subject to mortgage at sale on prior execution cannot 
 dispute validity of mortgage. Borton v. Davis, N. S. iii 700. 
 
 75 A magistrate who has rendered judgment for the plaintiff in an action 
 pendin<r before him, and, on request for an execution, has issued one which is 
 invalid" on its face, is liable for such damages as are the natural, necessary and 
 proximate consequences of his wrongful act ; but not for the costs of levymg the 
 execution, or losses to which the plaintiff has been subjected by reason of attempting 
 to enforce it. Noxon v. Bill, N. S. i. 178. 
 
442 EXECUTION. 
 
 76. A levy is prim^ facie a satisfaction of the execution ; but it may be shown 
 to hare proved to be not an actual one. Law t. Smith, 0. S. i. 694. 
 
 77. Great inadequacy of price will not vitiate a sale of land upon execution, 
 where the inadequacy has been occasioned by the improper conduct of the execu- 
 tion defendant. Id., 695. 
 
 78. A voluntary con veyance of land made by father to son to prevent their 
 being subject to the payment of his debts, whether he is indebted as principal or 
 security, may be set aside by his creditors and subjected to the payment of their 
 debts. 'Id. 
 
 79. It seems that a judicial sale by a sheriff or referee, or other ofScer of the 
 court, is not within the provisions of tlio Statute of Frauds, requiring the contract 
 of sale to be subscribed by the purchaser or his agent. If it be, however, the 
 written report or certificate of the referee, or the note or memorandum made by 
 the auctioneer, will satisfy the provisions of the statute, and remove all objection 
 to the validity of the contract to purchase, on the ground that no written contract 
 was subsci'ibed by the purchaser. JHegeman v. Johnson et ah, N. S. i. 377. 
 
 80. No stay of execution can be claimed upon a judgment in an action of 
 debt, on a judgment of another state. Sloat v. Prentice, 0. S. ii. 446. 
 
 81. Liability to distress, is the criterion for determining -the landlord's right 
 to participate in the proceeds of a sheriff's sale of goods on execution. Rowland 
 V. Goldsmith, 0. S. i. 632. 
 
 82. Execution-creditor, right to seize iron plates, sleepers, &c., of a lessee of 
 certain mines. Dulce of Beauford v. Bates, N, S. i. 374. 
 
 83. Stay laws, constitutionality. of. The provision of the Pennsylvania Stay 
 Law of May 2lst 1861, directing the court to order that no execution shall issue 
 against a defendant except at the periods when and in the proportions which it 
 shall appear, by a report of the prothonotary, that the majority of his creditors, 
 whose demands exceed two-thirds of his or their indebtedness, having agreed to 
 extend the time of payment of the debts due them respectively, is a violation of 
 the Constitution of the United States and of the state of Pennsylvania. Miller v. 
 Jiiplca, 0. S. ix. 561. 
 
 84. Stay laws, waiver of. A stipulation in a contract that the property of the 
 debtor shall be sold without appraisement, in the event of non-payment at matu- 
 rity, is a fact which ought not to be recognised by-a court in the decree rendered 
 upon such contract; Levichs v. Walker, 0. S. ix. 112. 
 
 85. In admiralty. See Admiralty. 
 
 86. The fimds of an insolvent corporation in the hands of a banker, are liable 
 to execution-attachment by a creditor of the corporation, and it is no defence that 
 the banlier is also a creditor of the corporation to an amount exceeding the funds 
 in his hands. Penrose v. Erie Canal Co., 0. S. vii. 126. 
 
 87. Money of a company deposited by the treasurer as such, is the money of 
 the corporation in the hands of the banker. Id. 
 
 88. If an execution be issued, not for the enforcement of the judgment by levy 
 and sale, but for the purpose of a lien, and to acquire security for the debt, it will 
 be postponed to a subsequent execution issued in good faith. Freburaer's Avveal. 
 N. S. i. 695. J U < 
 
 89. " Persons interested" to demand issue. Smith v. Reiff, O. S. i. 439. 
 
 90. Levied at different hours of same day — first executed should be first paid. 
 Case V. Case, 0. S. ii. 253. 
 
 91. Interest of mortgagor cannot be levied on unless he has an absolute right 
 of possession for a definite period when the levy is made. Farrell v. Bildreth, 
 ». S. ii. 507. 
 
 92. Creditor cannot contest validity of conveyance by his debtor in an action 
 by grantee for trespass by execution against the land. Garbutt v. Smith, N. S. 
 iii. 188. 
 
 93. Execution cannot issue on decree for foreclosure for balance left due after 
 the sale of the mortgaged premises. Orchard v. Hughes, N. S. iii. 694. 
 
 94. In making a levy should allow for the sacrifice of public sale French v. 
 Snyder, N. S. iii. 312. 
 
 95. Right of redemption of homestead not subject to execution when value is 
 under $500. Tucker v. Kenniston, N. S. vii. 253. 
 
 96. Where, upon a sale on execution of shares in a corporation a certificate 
 is demanded of the corporation by the purchaser, and a suit is brought for refus- 
 ing to give such certificate, the measure of damages is the value of the stock at 
 
EXECUTION. 443 
 
 the time of the demand, with interest, and not the Talue at the time of trial or 
 at any intermediate period. Pinkerton v. Manchester &• Lawrence Railroad Co 
 N. S. i. 96. 
 
 97. Notwithstanding the issue of execution, the case is pending and the exe- 
 cution is under the control of the court. Chapin v. James, N. S. xiv. 214. 
 
 98. After levy of execution against the tenant, no agreement of the landlord 
 will defeat the levy. Sargeant v. Courrier, N. S. xiv. 585. 
 
 99. Execution to enforce- maritime lien against a boat — jurisdiction of United 
 States District Court as to. Merritt v. Morgan, N. S. ix, 635. 
 
 100. A sheritf's return to an execution showing the collection of the money, 
 is conclusive upon his sureties, in a suit for not paying it over. Bagot y. State 
 ex rel. Deiinison, N. S. x. 749. 
 
 101. Indulgences permitted to a person committed to jail on final process, of 
 going outside, constitute a voluntary escape. Riley v. Wkittiker, N. S. ix. 714. 
 
 102. Where a homestead is rendered liable to levy and sale under execution. 
 Maker v. McConaga, N. S. ix. 60. 
 
 103. A writ of mandamus ordering the levy and collection of a tax is an ap- 
 propriate and proper process to enforce judgments against public corporations in 
 the state of Iowa. United States v. Treusitrer Muscatine Co., N. S. ix. 415. 
 
 104. Growing crops may be levied upon and sold as chattels under a writ of 
 Jieri facias de bonis. Bloom v. Welsh, 0. S. viii. 97. 
 
 105. Warrant of execution from Supreme Court in New York, when convict 
 not executed according to sentence. Ferris' s Case, N. S. vi. 377. 
 
 I<06. Validity of attachment of goods against vendors. Houston v. Howard, 
 N. S. vi. 438. 
 
 107. Sale of properly exempt from execution in Kentucky. What it passes. 
 Anthony v. Wade, N. S. vi. 439. 
 
 108. As to constitutionality of exemption laws. See Lasley v. Phipps, N. S. 
 xiii. 236 ; and see note to Mead v. Hand, N. S. v. 91. 
 
 109. An alien enemy may be sued and his property subjected to execution 
 during the war. Degiverville v. Dejarnette, N. S. xiii. 318. 
 
 110. The subject of war claims, fully discussed. N. S. xiii. 265, 337, 401. 
 
 111. Levy on land of partner for partnership debt cannot be defeated by an 
 attachment of individual creditor. Cattle v. Leitch, N. S. viii. 509. 
 
 112. There is no right to tender a chose in action against the creditor in pay- 
 ment of a judgment or execution. Thorp v. Wegefarth, N. S. viii. 62. 
 
 113. A trust estate cannot be sold by execution. Hogan v. Jacques, N. S. yiii. 
 120. 
 
 114. Commissions of an executor not attachable. Adams's Appeal, N. S. iv. 
 254. 
 
 115. Claims for unliquidated damages cannot be attached. McKeanv. Turner, 
 N. S. iv. 437. 
 
 116. Kemainder liable to execution if vested, Nichols v. Leity, N. S. vii. 
 120. 
 
 117. Priority of, as between creditors claiming for debts due by debtor as in- 
 dorser and in his own right, and where some of the plaintiff's held other securities. 
 
 . See Boulware v. Witherspoon, O. S. iii. 572. 
 
 1 1 8. Void and voidable, when no title passes by the sale. Kennedy v. Duncklee, 
 O. S. iii. 58. 
 
 119. Where a mortgage (other than one for purchase-money) and a judgment 
 are entered upon the same day, the mortgage is not a prior lien under the Act 
 of 1830, but will be discharged by a sale on a subsequent judgment. Magan 
 V. Gavitt, O. S. iv. 440. 
 
 120. A purchaser at sheriff^s sale, is not affected by anything which does not 
 appear on the record, and of which he h^s not notice. Id. 
 
 121. Copyright not the subject of levy. Stevens v. Cady, S. i. 375. 
 
 122. A sale oh mesne process of the property of a. stranger conveys no title 
 to vendee, and the real owner may replevy it. Coombs v. Gordon, N. S. xi. 
 595. 
 
 123. Lands not in possession of judgment-debtor, and in which he has only 
 an equitable estate, cannot be levied on in Ohio. Baker v. Haynes, 0. S. iv, 
 701. 
 
 124. Pro rata distribution among mortgages dated same day. Carnahan v. 
 Dyer, O. S. ii. 121. 
 
444 EXECUTION— EXEOUTOE AND ADMINISTRATOK. 
 
 125. Where a constable purchases a chattel sold by himself under an execu- 
 tion, and then sells to a bonS, fide vendee, the sale is good. Farnum v. Perry, 
 N. S. xi. 1.33w 
 
 126. The execution-creditor is not entitled to the proceeds of a policy, in case 
 of a loss by fire, by reason of a levy on the premises. Plimpton v. Farmers' 
 Mutual Ins. Co., N. S. xi. 130. 
 
 127. On an execution against one partner, the sheriff can levy on the interest 
 of the partner in the firm. VandiJce v. BossJcam, N. S. xi. 200. 
 
 128. No one but the defendant can take advantage of an irregular execution. 
 Wilkinson's Appeal, N. S. x. 538. 
 
 129. A man does not lose his character as a housekeeper by packing up his 
 poods for removal to another state, and may claim his exemption. Anthony v. 
 Wade, N. S. vi. 439. 
 
 130. When property, in transitu, is exempt. Id. 
 
 EXECUTOR AND ADMINISTRATOR. 
 
 1. An administrator cannot maintain a petition for leave to sell real estate for 
 the payment of debts of his intestate, if there are no debts due from the estate 
 which can be enforced at law. Lamson v. Schutt, N. S. i. 765. 
 
 2. Remedy of executor, who has resigned, to recover a debt due him from 
 estate. Prentice v. Dehon, N. S. v. 509. 
 
 3. Where a remainder in personal property is given to a married woman, and 
 after death of tenant for life a third person (jpmcs into possession, the next of kin 
 of such married woman cannot maintain suit for it without taking out adminis- 
 tration. Weeks V. Jewett, N. S. .v. 704. 
 
 4. Where an executor has delivered personal property to a tenant for life, his 
 duty under the will is completed. On death of sucii tenant he cannot bring.an 
 action to recover the property from a third person wrongfully holding it. Id. 
 
 5. Of two persons of the same relationship to decedent, one living in the state 
 is ordinarily entitled to administration, but for reasons the court may prefer the 
 other, Pickering v. Pendexter, N. S. v. 697. 
 
 6. Administrator may sue in his own name for intestate's goods sold by him. 
 Aiken-v. Bridgman, N. S. 'v. 315. 
 
 7. Set-off, in such cases. Id. 
 
 8. Sureties of administrator are liable on the bond, although he be improperly 
 appointed, if he act under his appointment. Shaker and Ebling's Appeal, N. S. 
 ii. 634. 
 
 9. Cannot be compelled by the heir to complete the purchase of real estate 
 which his decedent had orally agreed to buy. Gay etal. v. Gay etal., N. S. ii. 637. 
 
 10. What expenses before the discovery of a will administrator may be allowed 
 for. Edwards v. Ela, N. S. ii. 508. 
 
 11. Objections to the granting of letters testamentary to, under New York 
 statute. McGregor v. Buel, N. S. ii. 120. 
 
 12. Issue of special letters of administration to a collector — remedy for refusal 
 of surrogate to do so. Id. 
 
 13. An executor may bring a suit in a court of equity in his individual right, 
 against his co-executors individually to compel the payment of a legacy. Evans 
 V. Evans, N. S. xii. 190. 
 
 14. If the allegations in the bill are suflacient to bring the executors before the 
 court in their characters as executors, they need not be styled such. Id. 
 
 15. It is not necessai'y to make debtors of the decedent parties to a bill against 
 the executors by creditors or legatees. Id. 
 
 16. An administrator de bonis non is only entitled to demand of the deceased 
 executor's representatives such chattels or choses in action as were unconverted 
 and exist as they were at the death of the first testator. Carrick's Administratrix 
 v. Carrick's Executor, N. S. xii. 460. 
 
 17. The presumption arising from lapse of twenty-ono years that executor has 
 filed his account may be rebutted by actual proof that he neither accounted nor 
 distributed. Norris's Appeal, N. S. xii. 787. 
 
 18. Executor is chargeable with simple interest on balances deposited in his 
 account at bank, and used for private purposes. Id. 
 
 19. But where he has used the money he may be charged more than compound 
 interest. Id. 
 
 20. Where he has purchased stock in his own name which has risen in price, 
 he is liable for the dividends and the market value at time of decree. Id. 
 
EXECUTOK AND ADMINISTRATOE. 445 
 
 21. Such, purchase constitutes him a trustee of the estate. Norris's Appeal, 
 N. S. xii. 787. 
 
 22. Such possession of stock by executor is not adverse, and the Statute of 
 Limitations does not apply. Id. 
 
 23. An administrator may sue for breach of contract made with his intestate, 
 although the breach occurred after death of the decedent and before grant of 
 letters of administration. Holcomb \. Roberts, N. S. vii. 474. 
 
 24. In cases where it is necessary for the purpose of supporting the rights of 
 the intestate and for the benefit of his estate, letters of administration relate back 
 to the death of the intestate. Id. 
 
 25. Allowance of claim in another state under ancillary administration not 
 conclusive. Ela v. Edwards, N. S. vii. 187. 
 
 26. Letters testamentary in another state give no authority. Oilman v. Gil- 
 man, N. S. vii. 443. 
 
 27. Executor de son tort — what he may be allowed. Tobey v. Miller, N. S. 
 vii. 443. 
 
 28. If executor mingles his trust money with his own and dies, no preference 
 will be allowed in the distribution of his estate. Barlow v. Yeomans, N. S. vii. 
 637. 
 
 29. Court has power to order sufficient assets to be set aside for the discharge 
 of a debt or duty to be paid by testator or his executor at a future day. Petrie 
 V. Voorhees, N. S. vii. 696. 
 
 30. In general, bound by all covenants of testator, except those to be performed 
 by him in person. Id. 
 
 31. For acts of co-executor. "If one executor does any act which enables his 
 co-executor to obtain sole possession of money belonging to the testator's estate, 
 which, but for that act, he could not have obtained possession of, and this money 
 is afterwards misapplied, the executor who thus enables his co-executor to obtain 
 possession of the money, is liable to make good the loss." Candler v. Tillett, 0. 
 S. vi. 58. 
 
 32. Where an executor or other trustee settles his accounts in court with undue 
 frequencv, the remedy is in the court to impose the costs on him. Spanc/ler's 
 Appeal, b. S. i. 633. 
 
 33. For moneys belonging to the estate in the hands of the bankers of the tes- 
 tator, left for 8 period of no more than nine months after his decease, the execu- 
 tors are not bound to make good the fund lost by the failure of the bankers. The 
 executors are no doubt bound to exercise their judgment on the safety of the 
 place of deposit, whether it be that which the testator had in his lifetime 
 chosen, or whether it be selected by themselves ; and where a loss unfortu- 
 nately happens the question must al ways be, how far the executors must be held 
 to be answerable under the circumstances of the case. Johnson v. Newton, 0. S. 
 vi. 58. 
 
 34. A mortgage of household estates of the intestate's estate, with a power of 
 sale, in default of payment by an administrator, is good. Russell v. Place, 0. S. 
 iii. 125. 
 
 35. Where an administrator fails with funds of the estate in his hands not kept 
 separate from his private funds, the creditors of the estate have no right of prefer- 
 ence over the individual creditors. Cunningham's Estate, 0. S. ii. 120. 
 
 36. An executor cannot take a credit in his account for a debt due to himself 
 from the decedent, which was barred by the Statute of Limitations, in the life- 
 time of testator. There having been no evidence submitted to the auditor to 
 whom the account was referred, which would have authorized a recovery at law, 
 it was his duty to have rejected the credit. Hoch's Appeal, 0. S. i. 632. 
 
 37. Trustee, when and upon what terms he can retire from his trust. Forshaw 
 V. Higginson, O. S. v. 56. 
 
 38. The power of proceeding by citation or attachment against an adminis- 
 trator or executor for neglect to settle his accounts is necessary to the proper juris- 
 diction of a probate court. Philips v. The State, 0. S. iv. 635. 
 
 39. The doctrine that a technical or direct trust is not barred by lapse of time 
 is subject to important qualifications. Id. 
 
 40. The omission of the ordinary in South Carolina to take two good and 
 sufficient sureties to an administration bond; by which loss accrues to the parties 
 interested in the estate, is an official default for which an ordinary is liable, if 
 it result from negligence or want of due diligence, although it may not amount 
 
446 EXECUTOK AND ADMINISTRATOR. 
 
 to corruption or wilful default. Wheii the sureties are proved to have been in 
 fact insufficient when the bond was taken, the burtlien is then upon the ordinary 
 to show that his having talsen sUeh surety was owing to no negligence or want 
 of due diligence on his part. McRae v. David, 0. Si. i- !>72. 
 
 41. The rule that when a creditor is appointed executor by his debtor, his 
 right of action is suspended, because he is presumed to have retained the amount 
 of his debt and is the person both to pay and receive, applies only where the 
 executor has received assets. Lowe v. Peskitt, 0. S. iv. 125. 
 
 42. Authority given to sell land, &c., to pay debtSj legacies and distribute the 
 balance, confers an interest and a trust, and they should take possession and 
 account for rents, &o., until sold. Moxli/'s Adm'rv. Mosly'sAdm'rs, 0. S. iii. 53. 
 
 43. Liability of, for interest— partial distribution allowed where absent dis- 
 tributees arc secured — payment into court by executor, when proper — grand- 
 children, when not included in the term children. Appeal of GabWs Executors, 
 N. S. i. 692. 
 
 44. Where, under a mortgage of chattels, the mortgagee having the right to 
 take possession and sell on default in payment, did, upon such default, after death 
 of mortgagor, take possession of and sell the chattels mortgaged, it was held, 
 that an action of trover would lie against him, by the administrator of the de- 
 cedent, to recover the value of the goods sold, Kater v. Steinruck's Administrator, 
 N. S. i. 760. 
 
 45. A second mortgagee of land may maintain an action to foreclose his mort- 
 gage against the first mortgagee, who is in possession for the purpose of fore- 
 closure, if the latter is also the owner of the equity of redemption, and under his 
 execution may be put temporarily in possession, without an actual ouster of the 
 first mortgagee. Crovin v. Haeleiine, 'S. S. 1.437. 
 
 46. An executor who renounces his office, the renunciation being followed by 
 many years of total non-interference with the estate, is deemed also to have re- 
 nounced the trusts conferred by the will, which are personal and discretionary. 
 Beehman v. Bonsor, N. S. i. 179. 
 
 47. A gift to executors of money, to be applied in their discretion to the use 
 of societies for the support of indigent and respectable females, without further 
 designation of the beneficiaries, the executors having renounced the trust, cannot 
 be upheld. Id. 
 
 48. Duty to sell perishable property. Woods v. Sullivan, O. S. i. 379. 
 
 49. Commissions to accountants are due at the time the services are per- 
 formed. Parker's Estate, N. S. X. 408. 
 
 50. It is improper and unlawful for an executor to mix the funds of the estate 
 with his own. Id. 
 
 5 1 . An executor is not chargeable with interest when he pays within a reason- 
 able time after the funds are received. Id. 
 
 52. Until the executor qualifies he has no title to the personalty. Stagg v. 
 Green, N. S. x. 602. 
 
 53. An administrator who delays settling his account for ten years, and uses 
 the money in his own speculations, is chargeable with compound interest, and 
 annual rests are to be made in his account for that purpose. Johnson's Adm'x 
 T. Hedrick, N. S. x. 670. 
 
 54. A probate decree settling an executor's account is not conclusive evidence 
 of his liability in money for the balance with which he is charged. That sum 
 represents a balance of the estate undisposed of remaining for distribution, and 
 the decree while it stands is conclusive evidence that he had in his hands those 
 items of personal property. Sell ew's Appeal, N. S. x. 708. 
 
 55. But where a mistake has been made in the settlement of the account, and 
 property with which the executor is charged proves in fact to have been lost or 
 destroyed when supposed to have been in existence, or is subsequently taken from 
 the executor by a paramount title when it was supposed to belong to the estate, 
 the equity power of the court of probate is sufficient for the correction of the mis- 
 take, which correction may be made upon an application by the executor to the 
 court for relief. Id. 
 
 56. And where the same person is executor and trustee under a will, and after 
 the settlement of his account as executor there is a loss of property without his 
 fault, the court of probate may afford him relief in the settlement of his trustee 
 account. Id. 
 
 57. In such a case the trustee ought to chai-ge himself with the whole amount 
 
EXECUTOR AND ADMINISTEATGR. 447 
 
 which the court had ordered to he distributed to him and to credit himself with any 
 loss or depreciation of the property, and the finding of the court of probate ought 
 expressly or by necessary implication to determine the fact that he is entitled to 
 those credits. Sellew's Appeal, N. S. x. 708. 
 
 58. Where an executor was also a trustee under the same will, and by the set- 
 tlement of his account as executor was charged with a certain sura, and bv a 
 later settlement of his trustee account was charged with a less sum, the difference 
 representing? the loss or depreciation of property in his hands, it was held, on an 
 appeal from a probate decree settling the trustee account, tliat, as the record did 
 not show precisely what tlie decree appealed from was, the mere fact of the dif- 
 ference between the two accounts was not a sufficient reason for reversing the 
 decree. Id. 
 
 59. A will gave property to a trustee for the benefit of a daughter of the tes- 
 tator, the income to be paid to her annually until she should reach the age of 
 twenty-five years, at which time the property was to be conveyed to her abso- 
 lutely, with a right on the part of the trustee in his discretion to convey all the 
 property to her before reaching that age, and with a bequest over to other rela- 
 tives of the testator in case the daughter should die without issue before the pro- 
 perty was so conveyed to her. The daughter died without issue before ari'iving 
 at the age of twenty-five years. Previous to her death the trustee had delivered 
 to her a small portion of the trust estate ; Held, that the trustee under the provi- 
 sion authorizing him to convey to her all the property in his discretion before 
 she should reach the age of twenty-five, had a right to deliver to her such portion 
 of the property as he thought best. Id. 
 
 60. Under the statute of Missouri an administrator is not authorized to pay 
 claims allowed, until an order of court is made. Dullard's Adm'x v. Hardy, N. 
 S. X. 742. 
 
 61. The rule which forbids an executor to purchase or be interested in the 
 purchase of real estate sold to pay debts, is violated, if the executor becomes in- 
 terested before confirmation, although not until after the property is struck off; 
 and the sale is thereby rendered void. TenoilHger v. Brown, N. S. x. 798. 
 
 62. The facts that the fair value of the premises was bidden, and the sale was 
 afterward confirmed, ex parte, will not give it validity. Id. 
 
 6.3. Nor is it material that the agreement, by which the executcr became in- 
 terested, might be void under the Statute of Frauds. Id. 
 
 64. Where administration is taken out in another .state from that in which the 
 decedent was domiciled, the assets are subservient to the rights of" domestic 
 claimants, and the local administration account must be settled before transmis- 
 sion of the funds to the principal or primary administrator. Dent's Appeal, 0. 
 S. ii. 446. 
 
 65. The public administrator of the city of San Francisco only acts by virtue 
 of a special grant from the Probate Court for each particular estate. Mutter of 
 the Estate of Hamilton, N. S. viii. 126. 
 
 66. While one administrator is in office, the probate judge or court cannot ap-_ 
 point a new one. Id. 
 
 67. An executor has no power to Sell the lands of his testator, unless directed 
 to do so by the will, either expressly or by implication. Lippincott's E'x'r v. 
 Lippincott, N. S. viii. 127, 
 
 68. The capacity of an administrator to sue in assumpsit can only be raised 
 by a plea in abatement. Brown's Adm'r v. Nourse, N. S. viii. 185. 
 
 69. Where an executor is also trustee, he may be superseded as such, but al- 
 lowed to continue as executor. Leddel's Executor v. Starr, N. S. viii. 185. 
 
 70 If a suit is prematurely brought the executor must plead the fact in 
 abatement and not in bar. Amoskeag Manufacturing Co. v. Barnes, N. S. viii. 
 440. 
 
 71. May charge decedent's estate for suitable headstones for grave, where 
 there are sufficient assets. Ferrin v. Myrick, N. S. viii. 635. 
 
 72. An executor is not liable de bonis propriis on an oral promise to pay a 
 legacy. Okeson's Appeal, N. S. viii. 698. 
 
 73. Guilty of a devastavit for failure to collect the debts of the estate. Ogleshy 
 ,. Howard, N. S. viii. 698. 
 
 74. Executors and trustees, by bill in the nature of a bill of interpleader, may 
 take the advice of a court of chancery upon questions connected with the dis- 
 charge of their duties. Crosby v. Mason, N. S. vi. ] 3. 
 
448 EXECUTOR AND ADMINISTRATOR. 
 
 75. The interposition of the court in such cases is discretionary, and will not 
 be exercised except in matters of importance. Crosby v. Mason, N. S. vi. 13. 
 
 76. Eight of personal representative to demand aid of a court of equity in 
 performing his duties. Note to Crosbi/ v. Mason, N. S. Ti. 19. 
 
 77. One may call his co-executor to account in equity. Wood r. Brown, N. 
 S. vi. 121. 
 
 78. Creditors, legatees, and next of kin, necessary parties only to a final ac- 
 counting. Jd. 
 
 79. Interference of court, if one of several executors is guilty of misconduct. 
 Id. 
 
 80. Power of surrogate In New York in such case. Id. 
 
 81. Execution of joint administration bond makes each liable for the other. 
 Jeffries v. Lawson, N. S. vi. .507. 
 
 82. What acknowledgment of liability for acts of co-administration is conclu- 
 sive. Jd. 
 
 83. Executor liable to account for assets left by heir in his bands to pay illegal 
 legacies. Wells v. Mitchell, N. S. vi. 508. 
 
 84. Administrator's failure to apply assets to pay debts, constitutes a breach 
 of his bond. Cannon v. Cooper, N. S. vi. 507. 
 
 85. Trespass q. c. f. survives to. Railroad Co. v. Moye, N. S. ri. 507. 
 
 86. Where a person dies before the expiration of six years from the time when 
 a cause of action first accrued to him, liis executor must, in order to prevent the 
 operation of the Statute of Limitations, commence his action before the expira- 
 tion of the six years. Penny v. Brice, N. S. iv. 433. 
 
 87. May recover back a claim paid where the estate appears insolvent, and a 
 dividend ordered to be paid, and the Stiitute of Limitations runs against him 
 from the date of the dividend ordered. Richards v. Nightingale, N. S. iv. 501. 
 
 88. Advancement of money for his testator's estate. Munroe v. Holmes, N. S. 
 iv. 505. 
 
 89. Commissions not attachable. Adams's Appeal, N. S. iv. 254. 
 
 90. An action on an administrator's bond, in Missouri, has ten years to run 
 from the date of the accruing of the action. Martin v. Knapp, N. S. ix. 324. 
 
 9 1 . A note given by an executor to an attorney for his services to the estate is 
 payable by the maker personally. Kessler v. Ball, N. S. ix. 447. 
 
 92. Administrator held liable for paying over distributive shares to the Con- 
 federate States under process of sequestration. State, to use of Fisher, v. Ritcliey, 
 N. S. ix. 579. 
 
 93. The sale of all property, by executors and administrators, except annual 
 crops actually carried to market, must be at public auction. Neat v. Patton, N. 
 S. ix. 646. 
 
 94. Not personally liable for innocently receiving usury on a note due testator. 
 Heath V. Cook, N. S. iii. 507. 
 
 95. Executor procuring lease of premises held by testator, but forfeited, will 
 hold as trustee. Lich v. Bernicker, N. S. iii. 633. 
 
 96. In New York, before granting letters, there must be a written renunciation 
 or a citation to the person having a ptior right. Barber v. Converse, N. S. iii. 
 375. 
 
 97. An ordinary action does not lie in New York against a, foreign executor 
 as such. Metcalf v. Clark, N. S. iii. 502. 
 
 98. Proceedings by attachment are inapplicable against an executor not charged 
 with breach of duty except neglect to pay a debt of testator.. Id. 
 
 99. The administrator cannot by a promise in writing take a claim out from 
 the operation of the Statute of Limitations, nor omit to plead it. Hall v. Wood- 
 man, N. S. xi. 328. 
 
 100. An administrator, whether the estate is solvent or insolvent, is bound to 
 execute his trust in a reasonable time, *nd if he delay to apply the land for the 
 payment of debts for an unreasonable time his lien will be lost. Id. 
 
 101. Case will not lie against executors as such, for damages caused by raising 
 a dam on decedent's land, where the land has vested in the executors and others 
 under the will. Plimpton v. Richards, N. S. xi. 595. 
 
 102. Where the domicile of testator and all his personal property are in New 
 York, unnecessary to prove the will in another state. Young v Brush et al., N. 
 S. ii. 632. 
 
EXECUTOR AND ADMINISTRATOR. 449 
 
 103. Sale of lands by nflministrators and guardians as against infant heirs. 
 Gibson V Eolt, N. S. ii. U8. 
 
 104. Purchase by ngent of administrator at sale of decedent's real estate, is 
 void. Forbes V. Halsey, N. S. iii. 500. 
 
 105. If policy runs to assured, bis executors, &e., the latter may maintain an 
 action as trustee for the heirs. Wyinnn v. Wymwi, N. S. iii, 569. 
 
 106. Action maybe maintained against admiaistrator on note due from his in- 
 testate. Prescott V. Ward, N. S. v. 505. 
 
 107. Party disclaiming ownership to administrator not estopped liy the latter's 
 putting the property in his inventory and having it appraised. Turner v. Waldo, 
 N. S. vii. 573. 
 
 108. Action arising from « want of care or skill of a physician does not 
 survive against his executor. Vitlmn v. Gillman, N. S. ix. 516. 
 
 109. An administrator is not entitled to commissions on the sale of intestate's 
 land made by the heirs. Keij v. Jones, N. S. xiv. 641. 
 
 110. Administrator entitled to interest on a balance in his favor from over- 
 payments to distributees. Id. 
 
 111. His compensation must be governed by the law in force at the time ser- 
 vices were rendered . Id. 
 
 112. Will not he liable for accepting Confederate currencyin payment of debt, 
 if he exercised diligence, prudence and good faith. Id. 
 
 113. As a general rule, debts sued for and intended to be set-off must be due 
 and mutual in the same right, and hence a judgment against executors individu- 
 allv cannot be set-off against claims by them as executors. Prouiy v. Hudson, 
 0."S. iii. 40. 
 
 114. Expcutors are not responsible for loss from investment of funds in Con- 
 federate cerrifioates and treasury notes, where next of kin does not object. Kobb 
 v. Taylor, N. S. ix. 576. 
 
 115. Where Federal courts have jurisdiction. Walker y. Walker's Ex'rs, N. 
 S. ix. 448. 
 
 116. The administrator can maintain any proper action against the husband 
 for the enforcement of wife's right of property. Roberts v. Lund, N. S. xii. 731. 
 
 117. An administrator is not liable to foreign attachment. Conway v. 
 Armington, N. S. xiv. 391. 
 
 118. One who has contracted with an administrator cannot, when sued, plead 
 ne iinques administrator. Id. 
 
 119. Sale of land by administrator under order of Orphans' Court — on defi- 
 ciency in size of lot — abatement in the price to be made, but sale not rescinded. 
 Carmody v. Brooks, N. S. xiv. 400. 
 
 120. Executor not to deliver property to legatee before birth of child. Water- 
 man V. Sawkins, N. S. xiv. 528. 
 
 121. Where a covenant against encumbrances is broken in the lifetime of the 
 covenantee, the administrator and not the heir must sue for the damages. Frick 
 V. Bellis, N. S. X. 671. 
 
 122. If a will direct executors to sell a certain tract after the death of a cer- 
 tain legatee, a sale in lifetime of legatee is void. Booraem v. Wells, N. S. viii. 
 127. 
 
 123. Party to a suit not allowed to testify, when adversary is executor or 
 administrator. Brown v. Brown, N. S. viii. 576. 
 
 124. For injury causing almost immediate death, action survives to adminis- 
 trator. Bancroft v. Railroad Co., N. S. vi. 61. 
 
 125. Authority of administrator, executor and trustee for insolvent to transfer 
 stock of the corporation. Bayard v. Bank, N. S. vi. 633. 
 
 126. Of administrative suits, costs in. Note to Crosby v. Mason, N. S. vi. 
 20. 
 
 127. Insurance by an executor in his own name, on the property of his testa- 
 tor, enures to benefit of the estate. Colburn v. Lansing, N. S. vi. 123. 
 
 128. Claim against estate not barred till six months after its final rejection by 
 the executor. Colanan v. McClure, N. S. vi. 563. 
 
 129. If ancillary administration he taken out in an another state, a judgment 
 there rendered is not binding here and cannot be proved against the estate here. 
 Low V. Bartlelt, N. S. iv. ) 85. 
 
 130. The want of the statutory notice of execution to executor invalidates the 
 sale of decedent's property — burden of proof. Ransom v. Williams, N. S. iv. 573. 
 
 29 
 
450 EXECUTOR— EXEMPTION OP PEOPERTY, &c. 
 
 131. Cannot become a purchaser at his own sale. Malford v. Bower, 0. S. 
 iv. 680. 
 
 132. Cannot change the character of the trust fund. Qulch T. Fisher, 0. S. 
 iv. 684. 
 
 133. It is no defence to a suit by legatees, that the executor invested the funds 
 in bonds of the Confederate States, though such investment was approved by the 
 Probate Court. Horn v. Lockhart, N. S. xiii. 334. 
 
 134. The acts of the states in their individual capacities, so far as they did not 
 impair the just rights of citizens under the Constitution, are in general to be 
 treated as valid. Id. 
 
 EXECUTORY CONTRACT. See Con tract. 
 
 In ordinary cases the non-payment of money by a stipulated day is not suffi- 
 cient of itself to defeat the claims of a party to specific execution, since interest 
 will reasonably compensate the party for the delay, and equity relieves from 
 forfeitures whenever it can make compensation. But when the parties enter into 
 an executory contract of sale whereby it is stipulated, that if the vendor did not 
 pay the purchase-money within a prescribed period, the contract should be null ami 
 void, they have chosen to make time of the essence of their contract in express 
 terms, and even partial payments made within the period will not entitle the 
 vendor to demand a decree for specific execution. To decree .specific execution 
 under such circumstances would in truth be not the enforcement of the contract 
 between the parties, but the assumption of authority by a court of equity to make 
 a contract for the parties which they had not made for themselves. The court 
 should treat the contract as rescinded and require the vendor to refund so much 
 of the purchase-money as has been paid by the vendee. Especially should spe- 
 cific execution be refused when the bill was brought after a great lapse of time 
 which wrought great changes in the relations of the parties and in the subject of 
 the contract. Vint v, King,0. S. ii. 702. 
 
 EXEMPLARY DAMAGES. See Damages. 
 
 In an action under Pennsylvania Act of 1855, providing a remedy in case of 
 death by violence or negligence, exemplary damages should not be given unless 
 defendant has been guilty of fraud, gross negligence or malice. Coakley v. 
 North Penna. Railroad Co., 0. S. vi. 355. 
 
 EXEMPTION. 
 
 1. Validity of exemption laws discussed. Note to Mead v. Hand, N. S. v. 91 ; 
 and see Lasley v. Phipps, N. S. xiii. 236. 
 
 2. Exemption of homestead in the several states from sale on execution. See 
 subject fully discussed, N. S. i. 641, 705. 
 
 3. Exemption of household furniture for the use of the family under the laws 
 of Connecticut, and what constitutes " necessary furniture, " and who may be 
 considered members of the family. Weed v. Dai/ton, N. S. xiii. 603. 
 
 4. Individual partners are entitled to exemption out of partnership assets. 
 Howard y. Jones ^ Starhe, N. S. xiii. 457. 
 
 5. A judgment underwhich the land was sold being for purchase-money, there, 
 was no exemiition under the Bankrupt Law. Fehley v. Barr, N. S. x. 795. 
 
 6. A lace shawl is wearing apparel and exempt from execution, but rings and 
 jewelry are liable for debt. Frazier and Wife v. Barmtm, N. S. viii. 247. 
 
 7. I'riml facie, all property is liable to execution ; a claim of exemption will 
 not, tlierefore, avail an oflScer sued for neglect of duty in not levying. Baker v. 
 Brintnall, N. S. viii. 380. 
 
 8. The owner of property which is exempt in Kentucky may sell such property 
 ■without rendering the property liable to execution for the debts of the owner. 
 Anthony v. Wade. N. S. vi. 439. 
 
 9. Nor does such owner lose his character as housekeeper by " packing up" 
 his goods preparatory to removal with his family to another state. Id. 
 
 EXEMPTION OF PROPERTY FROM TAXATION. 
 
 1 . Constitutionality of acts for exemption. See The City v. Auditor of Mus- 
 kingum County, 0. S. iv. 767. 
 
 2. Report of Judiciary Committee of Senate of Rhode Island as to power of 
 state to perpetually exempt property from taxation, and cases cited. N. S. i. 
 718. 
 
EXEMPTION, PERSONAL— FACTOR. 451 
 
 EXEMrXION, PERSONAL. 
 
 Where a libel was filed in rem and in personam for damages sustained by a 
 consignee in consequence of the schooner's springing a leak by reason of her 
 unseaworthiness, the owner could not claim personal exemption under the Act 
 of Congress of March 3d 1851. In the matter of Sinclair, part owner of the 
 Schooner Ella, 0. S. viii. 206. 
 
 EXPERT. See Evidence. 
 
 1. Whether a witness offered as an expert has the legal qualifications to entitle 
 him to testify. Dole v. Johnson, N. S. xi. 663. 
 
 2. The opinion of a witness not an expert is inadmissible. Taylor v. Roaer 
 Williams Ins. Co., N. S. xi. 722. 
 
 EX POST FACTO LAWS. 
 
 Only unconstitutional when they impair contracts. See note to Killam v. 
 Kdlam, N. S. i. 24. 
 
 EXPRESS COMPANIES. 
 
 1. Responsibilities and dutes of ; subject discussed. N. S. v. 1. 
 
 2. As common-carriers; subject discussed. N. S. v. 449, 513. 
 
 3. How far express companies are liable ; subject discussed. N. S. v. 648. 
 
 4. Express companies cannot sell unclaimed trunks under the Act of Decem- 
 ber 14th 1863, without exposing the contents. Adams Express Co. v. Schles- 
 singer, N. S. xiv. 196. 
 
 5. The liabilities of common carriers and foi'warders, independent of any 
 express stipulation in the contract, are entirely different. Hooper y. Wells, Fargo 
 ^ Co., N. S. T. 16. 
 
 6. Replevin lies against express company after tender of legal charges. Eve- 
 leth T. Blossom, N. S. vii. 447. 
 
 7. A person calling himself A. sent a telegram to a bank to send him a sum 
 of money. The bank intrusted the package of money to an express company, 
 which undertook to deliver it to " A. in person." The express company deliv- 
 ered the money to the person who had sent the telegram, but who proved not to 
 be A., but a pretender, and the money was thereby lost. Held, that the company 
 Avas liable whether it received the package as a common carrier or as a forwarder 
 only. American Express Co. v. Fletcher, N. S. vi. 21. 
 
 8. Delivery of package by, must bo actual and bonS. fide, to discharge com- 
 pany. Express Co. v. Haggard, N. S. vi. 121. 
 
 9. If the agent of the company abstracts a parcel while in the act of delivering 
 it, it is no delivery, and the company will bo liable, even though a receipt be 
 signed and the form of delivery gone through by the agent laying the property 
 for a moment out of his hands. Id. 
 
 10. Where a person delivers goods to a carrier and receives a bill of lading, 
 expressing that the goods had been received for transportation, subject to the con- 
 ditions on the back of the bill, this constitutes a special contract between the 
 parties. Farnhamr. C. S/- A. Railroad Co., N. S. vii. 172. 
 
 EXTRADITION. 
 
 1. The surrender of fugitives by one government to another is not a duty un- 
 der international law, but depends on comity. Adriance v. Lagrave, N. S. xiv. 
 295. 
 
 2. The power to regulate and control the surrender of fugitives from justice 
 from foreign countries is conferred exclusively on the Federal government, and 
 a state law interfering therewith is contrary to the United States Constitution. 
 People V. Curtis, N. S. xii. 94. 
 
 FACTOR. 
 
 1. Charges of converting security into money are to be deducted before appli- 
 cation. Sheldon v. liaveret, N. S. vii. 379. 
 
 2. Especially if creditor is a factor with lien on goods. Id. 
 
 3. Evidence of title to protect the pledgee — New York Factors' Act. Cart- 
 wright V. Wilmerding, N. S. ii. 122. 
 
 4. Liability of a factor under del credere commission, to his principal. Cart- 
 wright v. Green, N. S. vi. 440. 
 
 5. When principal may recover price of goods sold on credit from factor. Id. 
 
 6. Under del credere commission, it seems, is not a guarantor of the re- 
 mittance. Id. 
 
452 FACTOK— FALSE EEPRESENTATIONS. 
 
 7. Whon factors have made large advances or incurred expenses, the consignee 
 cannot control their right to sell. Field v. Farrington, N. S. x. 61. 
 
 FALSE IMPRISONMENT. 
 
 1 To an action lor assault and imprisoning plaintiff in a lunatic asylum, at 
 common law he would only be justified if the person was in fact a lunatic, which 
 the plea did not allege. Fischer v, Fletcher, 0. S. rii. 567. 
 
 2. In an action for false imprisonment, evidence of the reputation of the bad 
 character of the plaintiff, in respect to the offence charged, is inadmissible. 
 Scheer v. Keown, N- S. xiil. 589. 
 
 3. If plaintiff's bad character was one of the grounds of defendant's suspicion, 
 he should have set it up in his answer. Id. 
 
 4. Person arrested on void execution cannot recover damages for remaining on 
 the prison limits under his void bond. Fuller v. Bowker, N. S. ii. 571. 
 
 5. Measure of damages for. Brown v. Chndrey, N. S. iii. 61. 
 
 6. Private person talking part in an unlawful imprisonment by an ofBcer is 
 liable for the trespass, but not if he merely gives information to the officer. Id. 
 123. 
 
 7. Justification must be specially pleaded under New York Code. Id. 
 
 FALSE PRETENCE. 
 
 1. Inferring pretence from conduct. Reg. v. Partridge, 0. S. ii. 507. 
 
 2. Where the prisoner falsely stated himself to be a servant of A., but was 
 understood by prosecutor to say of B., the conviction quaslied. Queen v. Bulmer, 
 N. S. iv. 312. 
 
 3. A town cannot bring action for fraudulent pretence in obtaining a judgment 
 against it while judgment is in full force. Hillsborough v. NichoUs, N. S. vi. 
 313. 
 
 4. What an indictment must state. Thomas v. People, N. S. vi. 119. 
 
 5. The definition in the 2d Revised Statutes, page 702, sect. 30. of the term 
 " felony," when used in a statute, has not so changed the common law as to pre- 
 vent a purchaser in good faith and for value obtaining title to goods which the 
 original vendee procured by false pretences. Fassetl v. Smith, N. S. i. 180, 
 
 6. The case of Andrew v. Dieterich (14 Wend. 36) in this respect overruled. 
 Id. 
 
 7. Where the pretence is known to the prosecutor to be false, but he still parts 
 with his money under a desire to entrap the defendant, this is not an obtaining 
 money by false pretences. Beg. v. Mills, 0. S. v. 704. 
 
 8. As to the quantity of the article sold. Reg. v. Sherwood, 0. S. v. 704 ; and 
 see Slothower v. Gordon, N. S. vii. 251. 
 
 9. As to the quality of the article sold. Reg. v. Bryan, 0. S. v. 704. 
 
 10. If goods are delivered to a carrier in one county to be delivered to the 
 writer of a letter containing false pretences in another county, the offence is com- 
 pleted in the former county. Norris v. Slate, N, S, xiv. 644. 
 
 11. Indictment defined and authorities cited. People v, Ristenbatt, 0. S. iii. 
 418. 
 
 FALSE REPRESENTATIONS. * 
 
 1 . Sales by trustees stand upon the same rules as to representations. Slothower 
 V. Gordon, N. S. vii. 251. 
 
 2. Simple representations as to value, not a warranty. French v. Griffin. N. 
 S. vii. 703. ■" ' 
 
 3. No action lies on false oral assurance of the credit of a corporation by the 
 treasurer. McKinney v. Whiting, N. S. iv. 187. 
 
 4. When it appears that the defendant was not and could not have been misled 
 hy a variance between the complaint and the proof, the variance may be disre- 
 garded without amendment. Craig v. Ward et al., N. S. i. 767. 
 
 5. No action can be maintained to charge a defendant upon or by reason of 
 false representations concerning the credit and ability of another, made in order 
 to induce the plaintiff to indorse a note signed by such other person, which the 
 defendant received and used for his own benefit, unless the representations were 
 made in writing. Mann v. Blanchard, N. S. i. 382. 
 
 6. False representation of authority to order stone for a church, the person 
 so ordering the same held liable. Pandell v. Trlmen. O. S. v. 509. 
 
 7. A party making a representation false in fact renders himself liable in an 
 
FALSE REPRESENTATIONS— FENCE. 453 
 
 action for fraud, although he did not actually know the representation to be 
 false at the time. Craig t. Ward et al,, N. S. i. 767. 
 
 8. One who obtains goods by false pretences in one connty, and afterwards 
 brings them into another county, where he is apprehended with them, cannot be 
 indicted for the offence in the latter county, but must be indicted in the county 
 where the goods are obtained. The Queen v. Stanhury, January 18th 1862, N. 
 
 S. i. 445. 
 
 9. Party liable for not speaking truthfully as to solrency of another, though 
 he might have declined to speak at all. Viele v. Goss, N. S. vii. 380. 
 
 FAMILY PICTURES. 
 
 By the law of Ohio family pictures are exempt from execution. McMicken 
 T. McMicken University, N. S. ii. 489. 
 
 FAKM FIXTURES. 
 
 See Wiltshear v. Cottrell, 0. S. ii. 61. 
 
 FARM MORTGAGES. 
 
 An act which interposes obstacles to the enforcement of certain mortgages im- 
 pairs the oljligatiou of contracts and is void. Oatman v. Bond, N. S; iii. 
 377. 
 
 FAST DAT. 
 
 In the port of Boston there is no law forbidding the tender of freight to con- 
 signee on a fast or holiday. Tangier v. Goddard, O. S. viii. 278. 
 
 FEDERAL COURTS. 
 
 Appellate jurisdiction of, over state courts, discussed. 0. S. iv. 129. 
 
 FEES, of public officer in arrest of fugitives from justice — subject discussed.- 0. S. 
 V. 98. 
 
 FEES OF LAWYERS. Subject discussed. 0. S. iii. 200. 
 
 FEIGNED ISSUE. 
 
 Pleadings should be such that the jury can find simply for the plaintiff or de- 
 fendant ; a special verdict is improper. Coleman v. Rowland, O. S. ii. 571. 
 
 FELLOW-SERVANT. 
 
 1. A master is not responsible for injuries inflicted through the negligence of 
 a fellow-servant. Bailroad Co. v. Collins, N. S. v. 265. 
 
 2. Railroad not responsible for or to employee for personal injury from switch- 
 man's negligence, if the company had used due care in selecting the switchman. 
 Gilman v. Railroad Co., N. S. v. 572. 
 
 3. Where the employee upon a railroad is injured by the negligence of the' 
 engineer of the company, and is himself guilty of such neglect and want of care 
 as would not, but for the gross negligence of the engineer, have resulted in the 
 injury, he is not precluded from maintaining his action. Id. 
 
 FEME COVERT. See Husband and Wipe. 
 
 Feme with life estate in personalty to separate use, and general power of ap- 
 pointment by will, does not, by exercising the power, make the property liable 
 to such engagements as would be charges on her separate estate. Vaughan v. 
 Vanderslegen, 0. S. iii. 125. 
 
 FENCE. See Cattle. 
 
 1. There may be a valid prescription binding the owner of land to maintain 
 perpetually a fence. Adams v. Van Alstyne, N. S. iii. 58. 
 
 2. In such a case, fence-viewers have no jurisdiction. Id. 
 
 3. Maintenance by a party exclusively for more than twenty years warrants 
 the presumption of a covenant compelling him to do so. Id. 
 
 4. Where a railroad delays for a week in repairing fence burned down, it will 
 be liable for injury to cattle straying on track. C, C.,C.Sf 1. Railroad Co. v. 
 Brown, N. S. xiv. 61. 
 
 5. Railroad company not liable for cattle straying on track at a place where 
 the company was not bound to fence. Railroad Co. v. Bowyer, N. S. xiv. 61. 
 
 6. Trespass cannot be maintained against a surveyor of highways for remov- 
 ing fences that have been less than forty years within the location of a highway. 
 Whittier V. Mclniyre, N. S. xi. 595. 
 
454 FENCE. 
 
 7. It is no defence to an action for damages done to crops by hops in a town- 
 ship where the hog law is in force, that there was no legal and sutfieient fence. 
 Wells V. Beal, N. S. xii. 533. 
 
 8. Maintenance of fence in a highway for forty years, gives a right to con- 
 tinue it there as against the public. Cutter v. Cambridge, N. S. iii. 31 6. 
 
 9. A railroad company in absence of statutory provision is not bound to fence 
 its track. Stucke v. M. M. Railroad Co., 0. S. vii. 732. 
 
 10. This rule does not apply to one entering in order to make a partition fence. 
 Carpenter v. JIaheij, N. S. xi. 62. 
 
 1 1 . The fence law of Virginia does not make it lawful for the cattle of persons 
 in the neighborhood to bo upon the track of an nninclosed railroad. R. ^ P. 
 Railroad Co. v. Jones, O. S. vi. 346. 
 
 12. Where animals escape from their pasture through defects in the fence be- 
 jlonging to the railroad company, it is liable under all circumstances for damages. 
 
 Gilmanv. Railroad Co., N. S. xii. 555. 
 
 13. A railroad must fence when the streets of a town terminate ; if not, is 
 , liable for injury. T. W. ^ W. Railroad Co. v. Canj, N. S. xii. 534. 
 
 14. At common law the owner of a close was not obliged to fence against the 
 cattle of the occupant of an adjoining close. The statute imposing the duty on 
 adjoining proprietors of land to erect and maintain fences recognised the same 
 principle ; for the object and design of fencing is not to keep the cattle of others 
 off the premises, but to keep at home the cattle of the occupant ; this principle 
 has equal application lo the owners of land adjoining public highways ; and where 
 no statutes exist, and no obligation is imposed by covenant or prescription, a 
 railroad company is not bound to fence their land. Hurd v. Rutland Railroad 
 Co., 0. S. ii. 232. 
 
 15. Under the provisions of section 14 of the act incorporating the Rutland 
 and Burlington Railroad Company, requiring them " to build and maintain a 
 sufficient fence 'upon each side of their road through the whole route thereof," 
 if the cattle of tlie owners of adjacent land are found upon the road, and are 
 injured through the negligence of the corporation to make and maintain a saffi- 
 cient fence, the corporation arc chargeable with the risk, and are subject to such 
 damages as may be sustained thereby. Id. 
 
 16. And where a farm-crossing is constructed over the railroad for the benefit 
 of an adjacent landowner, it is the duty of the corportion, under the statute, to 
 guard it by a continuous fence, and to erect suitable bars or gates in order to give 
 convenient access to it ; and if injury arise through the want of such bars or gates, 
 the corporation will be liable, unless some facts exist by which they are relieved 
 from the responsibility. Id. 
 
 17. Enclosures of railroads, as required by the Act of March 25th 1859 of 
 Ohio, must be separate from that of adjoining proprietors. Marietta 4" Cincin- 
 nati Railroad Co. v. Stephenson, N. S. xiii. 649. 
 
 18. The obligation on the part of railroads to maintain fences extends to the 
 public generally. Id. 
 
 19. The English rule requiring owners of cattle to restrain them from running 
 at large has never been the law of Ohio. Id. 
 
 20. The owner of cattle running nt large is not guilty of a breachxif anv duty 
 imposed by the Act of April 13th 1865, if they are at large without omission of 
 reasonable care. Id. 
 
 21. In an action to recover one-half the value of a partition fence under the 
 Act of May 3d 1 859 of Ohio, the appraisal of the township trustees is conclusive 
 as respects the value. Robb v. Brachmann, N. S. xiii. 650. 
 
 22. The fact that the fence is betteri than required does not preclude the plain- 
 tiff from recovering. Id. 
 
 23. Nor that it does not strictly conform to the boundary line between the 
 parties. Id. 
 
 24. The " fence laws" which make a railroad company liable for injuiy to 
 cattle, &c., on their track, where there is no fence, whether the company he 
 negligent or not, contemplate injury from direct and actual collision. Lafferlij 
 V. St. Joseph Railroad Co., N. S. ix. 229. 
 
 25. Where cattle or horses on the track are frightened, and in running or 
 jumping out of danger are injured, but there is no collision with the locomotive 
 or cars, the railroad company is not liable. Id. 
 
FENCE— FIXTUKES. 455 
 
 26. If the landowner refuse to have bars placed at fuch crossing, and forbid 
 the corporation to malce them when they offered to do so or were in the act of erect- 
 ing them, this, as against such landowner, would operate as a legal excuse for 
 their omission to build the fence, even if an express agreement had been made 
 by the parties for the erection of gates instead of bars. Tor the non-perform- 
 ance of the agreement and the refusal to erect gates as stipulated, the remedy 
 of the party would be only by action on the contract for damages. And the 
 effect of the refusal to have bars erected would be to replace upon the landowner 
 the obligation mhich rested upon him at common law, to keep his cattle on his 
 own premises, and from the premises and railway of tlie corporation, llurd v. 
 The Rutland Railroad Co., 0. S. ii. 232. 
 
 TEliRY. See Caekiek. 
 
 1. The lessee of a ferry hiring from the defendants a steamer for a day to 
 carry his passengers, held, that crew of steamer still are servants to defendants, 
 and are liable to him. Dalyell v. 2'yrcr, 0. S. vii. 440. 
 
 2. Rights of riparian proprietors — subject discussed. N. S. iv. 513. 
 
 3. How far bound to furnish safe and convenient means of passage, and im- 
 proved methods at greater expense. Barren, v. Ferri/ Co., N. S. vi. 61. 
 
 FINDER. 
 
 Of a pocket-book in a shop, not authorized to take and hold against shop- 
 keepers. McAroij v. Medina, N. S. ix. 189. 
 
 FINES AND FORFEITURES. 
 
 1. Power of remission is in executive and cannot be exercised by legislature. 
 Halei/v. Clark, 0. S. iv. 250. 
 
 2. When a mortgage given to a building association stipulates for the pay- 
 ment of certain iines, equity should allow their collection in a suit to foreclose. 
 Shannon v. Howard Mutual Building Association, N. S. xii. 187. 
 
 3. Such fines arc not within the principle forbidding equity to enforce fines 
 and penalties. Id. 
 
 FINES AND PENALTIES. 
 
 While an insurance and loan company may have the right to impose a fine on 
 a member, for non-payment of dues, after tender of the amount due, it cannot 
 proceed with the imposition of fines for the refusal to pay the first fine. Pentz 
 V. Citizens' Fire Ins. Co., N. S; xi. 533. 
 
 FIRE INSURANCE. See Inshrakce. 
 
 A stipulation in a policy of insurance, that the insurance shall be void in case 
 the assured, or any other person with his knowledge, shall have or make any 
 other insurance on the property, not notified to the insurers and mentioned in or 
 indorsed upon the policy, is a material part of the contract between the parties. 
 Gilbert V. Phosnix Insurance Co., N. S. i. 767. 
 
 FISHERY. 
 
 1. Fishery is an acknowledged right, but is subordinate to the rights of navi- 
 gation. Cobb V. Bennett, N. S. xiv. 260. 
 
 2. The right of fishing in the tide-waters of New Jersey is primsl facie com- 
 mon to all the people of the state. Woolei/ v. Campbell, N. S. xiv. 128. 
 
 3. Annexed to the shores of the river Delajvare — opinion of Hon. Joel Jones 
 as to. 0. S. iv. 582. 
 
 4. A party securing the right of flowage from adjacent landowners for pur- 
 pose of water-power, and then stocking with fish, does not have exclusive right 
 of fishing. Damon v. Felch, N. S. xi. 272. 
 
 FISHING. , V . . ,. 
 
 Act regulating within the limits of a state is within the authority ot the state 
 legislature. Dunham v. Lamphere, 0. S. iv. 757. 
 
 FIXTURES. , , ,. . 
 
 1. Trade fixtures and buildings for trade, no matter how strongly attached to 
 the soil or firmly embedded in it, are treated as personal property, and as such 
 subject to removal bv the person erecting them. Northern Central Railway Co. 
 V. 'Cantm Co., N. S.'viii. 540. 
 
 2. The road-bed of a railw.ny, the rails fastened to it, and the buildings at the 
 
456 FIXTURES. 
 
 depots are real property ; but under certain circumstances they may be trade 
 fixtures, and be treated as personal property. Northern Central Railwai/ Co. v. 
 Canton Co., N. S. viii. 540. 
 
 3. The ground upon which a tenant's right to remove his fixtures has been 
 limited during the continuance of his term, rests upon the doctrine that if he 
 neglected to ayail himself of his right within this period the law presumed that 
 he voluntarily relinquished his claim in favor of the landlord. This presumption 
 cannot arise where the term, being uncertain in its continuance, may be termin- 
 ated suddenly, and without previous notice. Id. 
 
 4. General rule as to what are. Hoi/le v. Railroad Co., N. S. vii. 762. 
 
 .5. Double window frames and blinds not fastened in, but held merely by being 
 fitted close, are not fixtures. Peck v. Batchelder, N. S. vii. 637. • 
 
 6. Where there has never been unity of title of the machinery fixed in a 
 manufactory and the ownership of the land, the machinery does not become a fi.\- 
 ture, but remains personal property. Adams v. Lee, N. S. xiv. 458. 
 
 7. Machinery being personal property, it is not necessary to mention it in a 
 deed of the land. Id. 
 
 8. Erections for agricultural purposes, as between vendor and vendee. Hark- 
 ness V. Sears §■ Walker, O. S. iv. 250. 
 
 9. A granary, resting by its mere weight on staddles built into the land, is a 
 chattel, and would not be a fixture in the ordinary sense of the word, though it 
 might pass by that word. WUtshear v. Cottrell, 0. S. ii. 61 ; and see this case 
 for further definition of fixtures. 
 
 10. The machinery of a cotton mill is part of the realty, but it may be detached 
 by the agreement of the owner and his creditors, and converted into personalty, 
 and if this be done it does not pass with the ft-eehold at a sheriff's sale. Harlan 
 T. Harlan, O. S. i. 439. 
 
 11. Machinery actually attached to the land will be presumed to be for im- 
 provement and will be deemed a fixture. Porter v. Cromwell, N. S. ix. 60. 
 
 12. In determining the question of fixtures, the intention of the person who 
 attaches thenx to the realty is an important element to be considered. Id. 
 
 13. To constitute a fixture it is necessary tliat it should appear, from all thfe 
 circumstances, that a permanent annexation of the article to the freehold was in- 
 tended. Capen v. Peckham, N. S. ix. 136. 
 
 14. The character of the annexation is of great importance, as showing the 
 intent with which it was made. Id. 
 
 15. A windlass used in a slaughter-house which passed through and turned in 
 timbers firmly secured to the building, held to be part of the realty. Id. 
 
 16. Sundry other articles, used in the same building, not so firmly secured to 
 the building, held to be personal property. Id. 
 
 17. A building erected on another's land under an agreement that it may be 
 removed at the builder's pleasure, does not become real estate. Goodman v, 
 Han. f/- St. Jos. Railroad Co., N. S. ix. 321. 
 
 18. Rule of, between mortgagor and mortgagee. Li/nde v, Rowe, N. S. vi. 
 316. 
 
 19. A. mortgages to B. a piece of ground ; afterwards. A., still continuing in 
 possession, erects on the land certain buildings, in which he puts up » steam- 
 engine, hay-cutter, corn-crusher, malt-mill and mill-stones, &c., all, except the 
 stones, affixed to the freehold, but in such a way as to be removable at pleasure, 
 without injury to the buildings as to themselves. A. then becomes bankrupt. 
 Held, that although the articles above mentioned were removable, and were put 
 up with a view to the better carrying on of A.'s trade or calling, yet being put 
 up with the object of permanently improving the inheritance, they were there- 
 fore fixtures, and did not pass to the assignees of A. on the bankruptcy. 
 
 Walmsley and Another, Assignees of Moore, a Bankrupt, v. Milne, O. S. viii. 
 373. 
 
 20. The relation between mortgagor in possession and mortgagee is not that 
 of tenant for years and landlord ; therefore, assuming the above to be trade fix- 
 tures, they were not removable, as such, by A. , and therefore did not, in that 
 view, pass to his assignees, there being no evidence of any intention, as between 
 A. and B., that articles affixed to the freehold by A. subsequent to the mortgage 
 should not become part of the mortgaged estate. Id, 
 
 21. In determining whether articles are or are not fixtures, the same rule pre- 
 
FIXTURES— FORGE BILL. 457 
 
 Tails between mortgagor and mortgagee as between grantor and grantee, and 
 this whether the mortgagee were or were not in possession of the premises. 
 Laflin v. Griffith, Sheriff, N. S. i. 309. 
 
 22. Law of, between heir and executor. N. S. v. 321. 
 
 23. Platform scales are. Bliss v. Whitney, N. S. v. 126. 
 
 24. What are fixtures depends upon the particular circumstances of the case. 
 Quimby v. Manhatan Co., N. S. xiii. 32S. 
 
 25. As between mortgagor and mortgagee, when the fixture appertains to 
 the real estate and is necessary for its enjoyment, it will be treated as realty. 
 Id. 
 
 26. That the fixtures were called personal property in the deed to the mort- 
 gagor cannot affect their character as between him and the mortgagee. Id. 
 
 27. There are three requisites for determining the character ; — 
 (1.) Actual annexation to the realty. 
 
 (2.) Application to the use or purpose for which the realty is appropriated. 
 (3.) The intention of the party making the annexation. Id. 
 
 28. A fixture is an article which was a chattel, but which, by being annexed 
 or affixed to the realty, became accessory to it and parcel of it, Teaff v. Htv)- 
 itt, O. S. i. 723. 
 
 29. The true criterion of a fixture is the united application of the folloiving 
 requisites, to wit : 1. Actual annexation to the realty, or something appurtenant 
 thereto. 2. Application to the use or purpose to which that part of the realty with 
 which it is connected is appropriated. 3. The intention of the party making 
 the annexation to make a permanent accession to the freehold. Id. 
 
 30. The criterion of a fixture applicable to machinery in a mill or manufactory 
 is not different from that which applies to articles affixed to the freehold in any 
 other situation. Id. 
 
 31. A mill or manufactory, including all its essential parts, may unite in the 
 same business, and for producing a common result, portions of real estate, witli 
 articles of personal property, retaining all the essential qualities of chattels. 
 Id. 
 
 32. The machinery in a woollen factory, consisting of cardjng-machines, spin- 
 ning-machines, power-looms, &c., connected with the motive power of the steam- 
 engine by bands and straps, but in no wise attached to the building in which 
 used, except by cleats, or other means to confine them to their proper places for 
 use, and subject to removal whenever convenience or business may require with- 
 out injury, are not fixtures, but chattel property. Id. 
 
 33. The legal qualities of articles attached to the realty may be fixed or ascer- 
 tained from the agreement and understanding of parties : and a sale and convey- 
 ance of a mill or manufacturing establishment as such, by any general name or 
 terms of description commonly understood to embrace all its essential parts, 
 passes the machinery belonging to such mill or establishment, whether affixed to 
 the freehold or not ; but otherwise, if the language is merely descriptive of the 
 realty with its appurtenances. Id. 
 
 FLAT-BOATS. 
 
 The maritime law has no application to flat-boats, their captains or navigators. 
 Leddo V. Hughes, O. S. iii. 638. 
 
 FLIGHT. 
 
 Evidence that the defendant in an indictment refused to fly when advised to do 
 so, after suspicions against him were excited, is inadmissible in defence. Com- 
 monwealth V. Ilersey, N, S. i. 178. 
 
 FORBEARANCE. 
 
 1. Agreement to forbear (=uing, good consideration for third person's promise 
 to pay the debt. Bank v. Wixon, N. S. vi. 184. 
 
 2. Forbearance without binding agreement will not exonerate. Van Rensselaer 
 V. Kirkpatrick, N. S. vi. 190. 
 
 FORCE BILL. 
 
 Act of Congress of March 2d 1833 operates only in cases where there 
 is an avowed purpose by some authority or law of a state to release an 
 officer of the United States by habeas corpus, &c. Thomas v. Crossin, 0. S. 
 iii. 207. 
 
458 FORCIBLE ENTRY, &c.— FOREIGN CONTRACT. ' 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 1. In this action two questions must arise, the exclusive possession of the plain-. 
 tiff, and the invasion of his possession by the defendant. Jamison v. Graham, N. 
 S. xii. 191. 
 
 2. If the premises are used jointly, it is error to instruct the jury that the 
 plaintiff may recover if he was in possession. Id, 
 
 3. It is not necessary that the plaintiff should have a pedis possessio to maintain 
 an action of forcible entry. Id. 
 
 i. One joint tenant cannot recover exclusive possession of the premises against 
 his co-tenant. I.I. 
 
 5. On the trial of a forcible entry evidence of force employed to maintain a pos- 
 session peaceably obtained is inadmissible. Hoffman v. Harringlon, N. S. xi, 532. 
 
 6. Every forcible entry is forbidden, but not a forcible detainer, after a peace- 
 able entry, unless the detainer is unlawful. Id, 
 
 7. The Illinois statute of forcible entry forbids a forcible entry even by the 
 owner upon the actual possession of another. Reeder v. Purdy, N. S. vi. 104. 
 
 8. The cases relating to the common-law right of owner to enter forcibly on 
 the possession of another, discussed. Id. 
 
 9. In an action of forcible entry and detainer the title as between the parties 
 is not a matter of issue. Van Eaman v. Walker, N. S. x. 200. 
 
 FOREIGN ATTACHMENT. See Admiralty. Voluntary Assignment. 
 
 1. Error will not lie on a refusal to quash a writ of foreign attachment. 
 Lindsley v. Malone, 0. S. ii. 509. 
 
 2. A special plea in foreign attachment that the plaintiff was a resident of the 
 state in which the suit was brought, is bad ; the fact of such residence must be 
 set up by plea in abatement, if at all. Id. 
 
 3. A foreign attachment was issued against W., and the Banic of the United 
 States summoned as garnishee. W. subsequently deposited in the bank a sum 
 of money, which the latter afterwards repaid him, but under circumstances 
 which furnished no defence to the sci. fa. upon which judgment was accordingly 
 given against it. The bank, subsequently, made an assigilment for its creditors, 
 in which a preference was given to persons to whom it " was indebted as deposit- 
 ors." Held, that the plaintiff in the attachment was not entitled to rank as a pre- 
 ferred creditor in the place of the defendant. Washinyton Jaclcson's Appeal, 0. S. 
 ii. 44C. 
 
 4. Foreign attachment is still merely a process to compel the appearance of 
 the defendant, and the plaintiff is not, in all respects, entitled to be placed in his 
 position. Id. , 
 
 5. Claim for unliquidated damages cannot be attached. McKean v. Turner, 
 N. S. iv. 437. 
 
 6. Claim under policy before adjustment is unliquidated. Id. 
 
 7. The goods of a non-resident debtor in the hands of a person residing in 
 this state, are liable to be held by a writ of foreign attachment, although the 
 goods themselves are in another state. Childs v. Dighy, 0. S. iii. 301. 
 
 8. When binds debt due non-resident, notwithstanding previous assignment 
 in trust of all his estate. Philsnn v. Barnes, N. S. v. 379. 
 
 9. When one of two defendants competent witness for garnishee. Id. 
 
 10. Where several foreign attachments are executed the same day and upon the 
 same property, but at different hours of the day, the money made from the sale 
 of the property should be applied to the payment of the judgment obtained upon 
 them in the order of their service. The first executed should bo first paid. Case 
 v. Case, 0. S. ii. 253. 
 
 11. Where several foreign attachments are simultaneously execuled upon the 
 same property, the judgments obtained upon them should be paid pro rati. Id. 
 
 12. Where several foreign attachments are executed the same day and upon 
 the same property, and each of the writs shows the same return, the sheriff who 
 made the service is a competent witness for the purpose of proving that they 
 were executed at different hours of the day. Id. 
 
 13. Against maker of promissory note.' Culver v. Parish, O. S. i. 568. 
 
 FOREIGN CONTRACT. 
 
 A foreign parol contract not to be performed within a year, but good accord- 
 ing to the lex loci, cannot be enforced by an action in this country. Leroux v. 
 Brown, 0. S. i. 310. 
 
FOREIGN COURT— FORFEITURE. 459 
 
 FOREIGN COURT. 
 
 1. Transeriptof record from, is evidence. Slaughter v. Cunningham, 0. S. iii. 56. 
 
 2. Judgment of, not to be taken as conclusive of the truth of the facts stated 
 therein. Reg. v. Xiumian, 0. S. i. 307. 
 
 foheigner! 
 
 Domiciled here ; will of, subject to our laws. Note to Moultrie v. Hunt, N. S. 
 i. 167. 
 
 FOREIGN GOVERNMENT. 
 
 Whether proper! v of foreign sovereign can be attached. See Rowan v.. Sharp's 
 Rifte Co., N. S. i.'sSO. 
 
 FOREIGN INSURANCE COMPANY, transacting business in Philadelphia, per- 
 centage on receipts to be paid to private corporation. See Insurance Company. 
 
 FOREIGN LAW. . 
 
 1. Proof of — subject discussed. 0. S. v. 321. 
 
 2. Where a foreign law is in dispute, whether there be such a law is a matter 
 of fact for averment and proof. When it is shown in evidence its construction 
 and effect is for the court. James v. Cincinnati Railroad Co., 0. S. vi. 718. 
 
 3. Rights of wife as creditor of husband, under law of Fi-ance, continue and 
 attach to his property where he abandons and dies in United States. Bonata v. 
 Welsch, N. S. ii. 250. 
 
 4. Maritime law governs the crews of United States vessels, whether in a 
 port of the United States or a foreign port. Roberts v. Skoljield, 0. S. viii. 156. 
 
 FOREIGN MINISTER. See Ambassadok. 
 
 The court being informed by the counsel that one of defendants was an am- 
 bassador duly accredited from a foreign sovereign to the British court, will dis- 
 miss him from suit. Gladstone v. Musurus Bei/, N. S. ii. 176. 
 
 FOREIGN PORT. See Maritime Law. 
 
 FOREIGN SHIP. See Collision. 
 
 1. The, patent laws were not intended to apply to and govern a vessel of a 
 foreign friendly nation. Brown v. Duchesne, 0. S. iv. 152. 
 
 2. Neither the English nor American laws can avail the American shipowner 
 in case of collision between foreign ships, where cause is before English tribunal. 
 Cope V. Doherty, 0. S. vii. 181. 
 
 FOREIGN VESSEL, using an article patented here — effect of. Brown v. Duchesne, 
 O. S. iv. 152. 
 
 FORENSIC MEPIOINE. 
 
 Observations on the tests for arsenic. O. S. i. 11. 
 
 FORFEITURE. 
 
 1. A general or special statute directing a suit to be brought for a forfeiture, 
 it is unnecessary in order that the will of the state may l)e known as to whether 
 a forfeiture will be claimed or not. Texas v. South Par.. Railroad Co., 0. S. 
 viii. 78. 
 
 2. Forfeiture cannot be declared by the legislature ; can only bo done by the 
 courts by due process of law. Glover v. Powell, 0. S. iii. 367. 
 
 3. What is "personal propei'ty" and subject to forfeiture, under the act of 
 Cono-ress, in cases of illicit distillation of spirits. United States v. Ihirty-three 
 Barrels, N. S. vii. 365. 
 
 4. Forfeiture of insurance to be construed strictly. North Berwick Co. v. In- 
 surance Co., N. S. vi. 187. 
 
 5. The words " personal property" in section 48 of the Internal Revenue Act 
 forfeiting property, include all the property found in the building used for the 
 purpose of distilling illicit spirits. United States v. Quantity of Rags, N. S. vii. 
 369. 
 
 6. After receiving notice of over insurance, if a company makes and collects 
 assessments, it is estopped from setting up a, forfeiture. Elliott v. Lycoming Ins. 
 Cn., N. S. X. 745. 
 
 7. Where a contract for the sale of real estate contains a stipulation that non- 
 compliance shall work a forfeiture, such conditions must be strictly observed. 
 Case V. Wolcott, N. S. x. 670. 
 
460 FORFEITURE— FORMER RECOVERY. 
 
 8. Where purchaser has for the purpose of rectification mixed the whiskey for- 
 feited with other whiskey, so as not to be identified, the whole is liable to forfeit- 
 ure. United States v. Fifty-six Barrels of Whiskey, N. S. vi. 32. 
 
 9. An estate is forfeited until re-entry. Fonda v Sage, N. S. vi. 59. 
 
 10. Conviction of an infamous crime does not work such a forfeiture of public 
 office as to make the office vacant. The State v. Pritchard, N. S. xii. 514. 
 
 1 1 . Powers of agents to vary risks and waive forfeiture. North Berwick v. 
 Insurance Co., N. S. vi. 187. 
 
 12. " Marked value at place," in Act of March 3d 1863, means country 
 where bought or manufactured. Cliguot's Champagne, N. S. v. 507. 
 
 13. Falst entry of champagne forfeits it. Bollinger's Champagne, N. S. v. 
 640. 
 
 14. Equity will not interfere to enforce a forfeiture. White v. Railroad, N. S. 
 V. 58. 
 
 15. Of corporate franchises ; subject discussed. N. S. v. 577. 
 
 16. Where a statute in direct terms denounces a forfeiture of property as a 
 penalty, the forfeiture takes place at the time the offence is committed, and 
 operates as a statutory transfer of the right of property to the government. 
 United States v. Fifty-six Barrels of Whiskey, N. S. vi. 32. 
 
 17. In a proceeding in rem to ascertain the forfeiture, it is not material whether 
 the statute declares that the property shall be forfeited or that the offender shall 
 forfeit it. In either case the date of the offence is the time to which the forfeit- 
 ure relates. Id. 
 
 FORGERY. 
 
 1 . The prisoner was indicted for forging a testimonial to his character as a 
 schoolmaster, and other counts of the indictment charged him with having 
 uttered the forged document. The jury acquitted him of the forgery, but found 
 him guilty of the uttering with intent to obtain the emoluments of the place of 
 schoolmaster and to deceive the prosecutor : Held, that this finding of the jury 
 amounted to an offence at common law of which the prisoner was properly con- 
 victed. Eeg. V. ,Tohn Sharman, 0. S. ii. 508. 
 
 2. Indictment that respondent did falsely make and counterfeit, not liable to 
 charge of duplicity. State v. Hastings, N. S. xiv. 120. 
 
 3. Eorged acceptance of bill of exchange — effect of. Wettan v. Hodd, 0. S. 
 iii. 123. 
 
 4. Forged signature may be adopted — evidence of adoption, Greenfield Bank 
 V. Crafts, N. S. ii. 379. 
 
 FORMER ACTION. 
 
 1. Employee unlawfully discharged may sue for each, month's salary sepa- 
 rately. Entire and divisible contracts considered. Huntingdon v. Ogdenshurgh 
 Railroad Co., N. S. vii. 143 ; and see Mason v. Eldred, N. S. vii. 402. 
 
 2. Judgment finding a person to be an original promisor, estops him from 
 denying the same in litigation with other parties on notes. Sturtevant v. Ran- 
 dall, N. S. vi. 565. 
 
 3. Decree dismissing bill not on merits no bar to a subsequent suit. Hughes 
 V. United States, N. S. vi. 443, 635. 
 
 4. Nolle prosequi entered before trial on an information, no bar to. State v. 
 Dover, N. S. vi. 317. 
 
 5. What pleji of a former adjudication must show. Railroad Co. v. Watson, 
 N. S. vi. 716. 
 
 6. When a person is hired for a stated term and is wrongfully discTiarged he 
 may sue for each month's salary as it becomes due. Huntingdon v. Ogdenshurgh 
 Railroad Co., N. S. vii. 143. 
 
 7. A judgment upon a partnership note against one of the makers is at com- 
 mon law a bar to a subsequent suit against the other partner who had not been 
 served with process the first time. Mason v. Eldred, N. S. vii. 402. 
 
 FORMER RECOVERY. 
 
 1. A judgment recovered by the vendor for the balance of the price due on an 
 article manufactured under special contract is a bar to a suit brought by the 
 vendee for a breach of the contract. Gilson vT Bingham, N. S. xi. 73. 
 
 2. Where purchaser in an action for the price sets up fraud of vendor, but with- 
 draws the defence, he may afterwards have his action for fraud. McDonald v. 
 Christie, N, S, iv. 191, 
 
FORMER RECOVERY— FRANCHISE. 461 
 
 3. When it appears on the very face of a judgment that the plnintifT's demand 
 was not passed upon by the court, but the plaintiff applied for a discontinuance, 
 and on its being refused he declined giving any evidence, and the court merely 
 considered the counterclaim of the defendant, and gave a judgment in his favor 
 for the amount, the plaintiff may bring another suit for the demand which he de- 
 clined to submit for adjudication in the former action, Jones y. Underwood, N. 
 S..i. 378. 
 
 4. A record showing nonsuit is no bar to second action. Audubon y. Insurance 
 Co., N. S. iv. 162. 
 
 5. The decision in the first action having originally been that it be dismissed, 
 was afterwards changed to a nonsuit. On appeal in the second action the pro- 
 priety of this proceeding is not reviewable, and the amended judgment is the only 
 evidence of the disposition of the first action. Id. 
 
 6. Acceptance of a work by defendant after failure of plaintiff to recover on 
 the contract for its price will support an action on .quantum valebat, but such 
 acceptance is not proved by mere use. Corwin v. Wallace, N. S. iv. 446. 
 
 7. Suit for portion of a demand, or one of several demands arising out of the 
 same transaction, is a bar to subsequent suit for the residue, if it was due when 
 such suit was commenced. And this bar extends to such residue when pleaded 
 as a set-off. Hopf-v. Mi/ers, N. S. iv. 125. 
 
 8. Defence not confined to cases where the matter is patent in the pleadings, 
 but parol proof may be given. Miles v. Caldwell, N. S. iv. .510. 
 
 9. Parol evidence as to cause of action in the first suit. Boyce v. Burt, N. S. 
 iv. 251. 
 
 10. Parol proof as to identity of cause of action. Ilall v. Jones, N. S. iv. 440. 
 
 11. Decree in Supremo Court United States dismissing bill in equity, though 
 by a divided court, is a bar to suit in state court. Durant v. Essex Co., N. S. iv. 
 118. 
 
 12. Subsequent attaching-creditors and assignee of defendant may plead. 
 Child v. Eureka Powder Works, N. S. v. 701. 
 
 13. Judgment in another state, during the pendency of the action here, may 
 be pleaded as a bar. Id. 
 
 14. Waiver of objection to time of pleading a new plea. Id. 
 
 15. Judginent in contract bars subsequent action of tort for the same subject- 
 matters. Smith V. Wai/, N. S. v. 126. 
 
 FORNICATION AND BASTARDY. 
 
 1. The order of maintenance is part of the sentence, and cannot be made 
 where defendant is pardoned before sentence. Commonwealth v, Ahl, N. S. ii. 
 633. 
 
 2. Evidence in action against putative father. Eddy v. Gray, N. S. ii. 253. 
 
 FORWARDERS. 
 
 1. Forwarders are not insurers, but they are responsible for all injuries to 
 property, while in their charge, resulting from negligence or misfeasance of 
 themselves, their agents or employees. Hooper v. Wells, Fargo ^ Co., N. S. v. 
 16. 
 
 2. Delivery of packages by express company must ho actual and bon^ fide, to 
 discharge company. Express Co. v. Haggard, N. S. vi. 121. 
 
 FRANCE. 
 
 Tribunals and administration of justice — an account of. N. S. vii. 1. 
 
 FRANCHISE. 
 
 1. For definition of, see Texas y. South Pacific Railroad Co., 0. S. vm. 
 
 79. 
 
 2. Where an act has been regularly passed by the legislative power, some por- 
 tions of which are accordant with and some repugnant to constitutional provi- 
 sions the former will be valid and the latter void. Fisher v. McGirr, 0. S. ii. 
 460. 
 
 3. A plea which sets forth the character and terms of an act of the legislature, 
 granting a franchise, and material to the defendant's case, performs the proper 
 office of a plea. Union Branch Railroad Co. v. Eait Tenn. ^ Georgia Railroad 
 Co., 0. S. ii. 303. 
 
 4. If acts and agreements give to a corporation a franchise or exclusive nrivi- 
 lege of taking toll and erecting a bridge, that franchise or privilege may be 
 
462 FKANCHISE— FRAUD. 
 
 taken by the legislature of the state, under its rifrht of eminent domain on pro- 
 viding compensation. Milnor v. New Jersey Railroad Co., 0. S. vi. 6. 
 
 5. Such franchise or exclusive privilege, if it exists, is vested in the corpora- 
 tion at large and not in the individual members, and may be waived or relin- 
 quished by the actions of a majority of the corporators. Id. 
 
 6, It is settled at common law, that a franchise is not subject to levy on exe- 
 cution ; it can only be reached in chancery. Ludlow v. Hurd, 0. S. vi. 493. 
 
 FEAUD. 
 
 1. In legal proceedings — subject discussed. 0. S. iv. 1. 
 
 2. To exclude a party from relief against another engaged in the same fraud, 
 he must be not only m delicto, but in pari delicto. Freelove v. Cole, N. S. iii. 
 638. 
 
 3. Where the owner of mortgaged land made a "friendly arrangement" with 
 the mortgagee to buy in the land, ostensibly for his own use, but in reality to hold 
 it for the use of the mortgagor, in order to defeat the claim of a third person, ho 
 cannot sustain a bill in equity to restrain mortgagee from selling the land. 
 Bandall v. Howard, N. S. iii. 55. 
 
 4. In actions involving questions of fraud, the intent is always a material in- 
 quiry ; and to establish that, other acts of a similar character, done about the 
 same time, may always be shown. A}nsden v. Manchester, N. S. iii. 318. 
 
 5. Agent, when liable to purchaser for fraud practised by him in sale of 
 chattels. Gutchess v. Whiting, N. S. vi. 60. 
 
 6. Cannot recover on acceptance obtained by fraud. Bright v. Judson, N. S. 
 vi. 436. 
 
 7. It is fraud to draw on a bank where drawer has no funds. Peterson v. 
 Bank, N. S. vi. 631. 
 
 8. Sale of chattels, to remain the property of vendor until paid for, not 
 fraudulent. Esty v. Aldrich, N. S. vi. 248. 
 
 9. Judgment fraudulently confessed to defraud debtor's creditors is good be- 
 tween parties, and execution will be enforced. Blystone v. Blystone, N. S. vi. 203. 
 
 10. Judgment is an execution and merger of the fraudulent contract. Id. 
 
 11. Sale — how rescinded for fraudulent representations. Babcock v. Dill, 
 N. S. V. 185. 
 
 12. A libel for review when actnal fraud is charged and the libellant is with- 
 out fault and without remedy. Northwestern Iron Co. v. Hopkins, N. S. v. 44. 
 
 13. Person putting agent in position to perpetrate fraud, liable for loss. 
 Reynolds v. Kenyan, N. S. v. 181. 
 
 14. The remedy for fraud is an action against the guilty agent, not an action 
 on the contract. Leech v. Caldwell, N. S. v. 280. 
 
 15. A person is not liable on any supposed contract growing out of his indorse- 
 ment, nor can he be held at all' unless fraud or misrepresentation is proved. 
 Dumont V. Williamson, N. S. v. 330. 
 
 16. Purchaser cannot re.scind for fraud after property disposed of by him, by 
 offering to restore its proceeds. McCrillis v. Carlton, N. S. v. 250. 
 
 17. Assignment of life policies by debtor, insolvent when insured, in trust 
 for wife, void against creditor.s. Elliott's Executor's Appeal, N. S. v. 377. 
 
 18. Otherwise, if effected without fraud on face, for wife's benefit. Id. 
 
 19. One having superior legal title in possession without disturbance cannot 
 bring action to set aside deed by former party on ground of fraud. Butler v. 
 Viele, N. S. v. 508. 
 
 20. Will not rescind executed contract made to delay creditors, and void by 
 statute, on application of one of the parties to fraud, tlershy v. Wieting, N. S. 
 V. 380. 
 
 21. Sale by insolvent of whole stock upon credit not necessarily fraudulent. 
 Gibson V. Stone, N. S. v. 188. 
 
 22. The usual practice is to open the judgment and let the defendant into a 
 defence on the merits : the defendant may show fraud in obtaining the judgment. 
 Cochran v. Eldridge, N. S, v. 162. 
 
 23. Party charging fraud must aver fully and explicitly the facts constituting 
 it. Butler v. Viele, N, S. v. 512. 
 
 24. In either case delivery of a portion of the goods will take that portion out 
 of the Statute of Frauds. Swift v. Opdyke, N. S. v. 56. 
 
 25. Conveyance held fraudulent as against creditor. Armstrong v. Tuttle, N. 
 S. iv. 120. 
 
\ FRAUD. 463 
 
 26. A parol contract to marry not to he performed for more than a year is void 
 under the Statute of Frauds. Nicholls v. Weaver, N. S. x. 410. 
 
 27. If fraud be concealed by defendant's act, so that plaintiff could not have 
 discovered the same, statute will not run until after its discovery. Edwards v. 
 Gibbs, N. S. vi. 509. 
 
 28. Where actual delivery does not attend the sale it is fraudulent per so, and 
 the judge is bound to tell the jury so. Barr v Rcilz, N. S. vi. 693. 
 
 29. The maxim of caveat emptor has no application to actual successful fraud 
 practised by the vendor upon the vendee. Cfark v. Rankin, N. S. vi. 368. 
 
 30. If an answer admits a contract without stating that it is in writinp: and 
 setting up the Statute of Frauds, the statute canuot be used as a defence. Walker 
 v. Hill, N. S. X. 276. 
 
 31. A husband cannot recover the value of government bonds obtained by his 
 wife by a forged order. Kowing v. Manle.j, N. S. .^. 128. 
 
 32. A secret or concealed fraud is in equity a fraudulent concealment of the 
 cause of action. Martin v. Smith, N. S. ix. 694. 
 
 33. What in a court of equity will be regarded as a discovery of the fraud, 
 considered. Id. 
 
 34. The Statute of Frauds will not prevent the party aggrieved from showing 
 the true nature of the transaction. McBurnei/ v. WcVman, N. S. iv. 382. 
 
 35. Vendee may have action for fraudulent-representation as to the boundaries 
 of his lot. Newell v. Horn, N. S. iv. 448. 
 
 36. Mere omission of vendor to give information of defects is not fraud. Mc- 
 Donald r. Christie, N. S. iv. 191. 
 
 37. Transfer of goods in fraud of creditor, knowledge by vendee where he is 
 party to the agreement. Walsh v. Kelly, N. S. iv. 123. 
 
 38. Fraudulent conduct of crier at public sale. Brotherline v. Swires, N. S. 
 iv. 640. 
 
 39. Where the plaintiff's have been actually deceived by false representations 
 there lies an-action for damages. Id. 
 
 40. Where an agent is instructed to contract for a vessel and put the proceeds 
 in his own pocket, the principal's right is gone as against a bon£ fide purchaser. 
 Calais Steamboat Co. v. Scudder, N. S. iii. 52. 
 
 41. Principal liable for fraud of agent by acts in the course of legitimate 
 business. Exchange Bank v. Mmteath, N. S. iii. 700. 
 
 42. The production of a fraudulent certificate of approval of a land grant 
 affords strong ground for believing all the title papers to be fabricated. United 
 States V. Galbraith, N. S. iii. 51. 
 
 43. Separate defeasance withheld from record to defraud creditors is valid and 
 will be enforced. Clark v. Condit, N. S. vii. 763. 
 
 44. Infringement should be enjoined where the defence is the fraud or imposi- 
 tion of plaintiff and the evidence is conflicting. Smith v. Woodniff, N. S. vii. 191. 
 
 45. Receipt of goods by insolvent with design not to pay for them will avoid 
 the sale, though he had no sucli design when he ordered them. Pike v. Wieting, 
 N. S. vii. 574. 
 
 46. The decree or judgment of a state court can be avoided on the ground of 
 fraud. Armory v. Amory, N. S. xii. 585. 
 
 47. Is sufficient ground to dissolve an unexpired partnership. Cottle v. Leitch, 
 US. S. viii. 509. 
 
 48. The doctrine of fraud in law as applicable to change of title in personal 
 property without cliange of possession, is merely evidence to show the existence 
 of fraud. Daniels v. Nelson, N. S. viii. 149. 
 
 49. Perpetrated after the execution of a note is no defence against an assignee 
 before maturity. EUioit v. Levings, N. S. xi. 125. 
 
 50. Where a bond is signed by an illiterate person and the contracts are mis- 
 represented to him, it is his bond, though he may avoid it for the fraud. Schuyl- 
 kill V. Cof.ely, N. S. x. 783. 
 
 51. The creation of a debt by fraud is not a ground for refusing a discharge to 
 a bankrupt. Matter of Rosenfield, N. S. vii. 618. 
 
 52. A specification stating that debt had been created by fraud is not a good 
 specification and will be stricken out. Id. 
 
 53. By the term " fraudulent preference," used in item nine of section 29, is 
 mpiint onlv a preference in fraud of the bankrupt act. Id. 
 
 54. Purchaser from insolvent debtor with knowledge of intention to defraud par- 
 
464 FKAUD. 
 
 ticular creditor is liable for such part of the purchase-money as the debtor has 
 diverted from his creditors. Clements v. Moore, N. S. vii. 378. 
 
 55. A bill lies to set aside a deed procured by fraud. Martin v. Graves, TS. 
 S. iii. 62. 
 
 56. Where it appears on the face of a bill that an agreement concernins an 
 interest in lands is in parol, the defence of the Statute of Frauds may be taken 
 advantage of on demurrer, Randall v. Howard, N. S. iii. 55. 
 
 57. A suspension of payment of commercial paper for fourteen days is not, 
 unless fraudulent, an act of bankruptcy. Matter of Leeds, N. S. vii. 693." 
 
 58. A debt fraudulently contracted is not discharged. Me Pettis, N. S. vii. 
 695. 
 
 59. If there has been fraud in the sale of oil stock, the purchaser could rescind 
 and recover back price, but the tender must be in a reasonable time after dis- 
 covery of the fraud. Learning et al. v. Wise et al., N. S. xiii. 394. 
 
 60. If one recklessly makes a false representation to induce another to enter 
 into a contract, he is liable for the fraud, and contract may be rescinded. Beebe 
 V. Knapp, N. S. xiii. 457. 
 
 61. Where an administrator sells his intestate's'^land to A., without authority 
 of law, so that the title remains in the heir, and B. obtains a conveyance from 
 the heir for a nominal consideration, by fraudulently representing that he was 
 procuring it for A., the legal ^titlc passes to B., but A. or his grantee has an 
 equitable interest in the land by reason of such fraud. Lombard v. Cowham, N. 
 S. xiii. 710. 
 
 62. Equity has control of a deed obtained by fraud, for the purpose of grant- 
 ing relief. Id. 
 
 63. Where fraud in procuring a deed does net make it void, it is no legal de- 
 fence to an ejectment on the deed. Id. 
 
 64. A wrongdoer is not entitled to the benefit of the doctrine, that one who 
 mixes his goods with another's loses his property. Woolei/ v. Campbell, N. S. 
 xiv. 128. 
 
 65. The procuring of property upon a promise which the party at the time 
 does not intend to perform, is a fraud. And it makes no difference whether the 
 property is real or personal. Doted v. Tucker, N. S. xiv. 477. 
 
 66. For the purpose of proving a fraudulent intent on the part of a grantor 
 of real estate, evidence is competent to show, that, on the same day of making 
 the conveyance in question, he conveyed to near relatives all his other real and 
 personal estate not exempt from seizure on execution ; but evidence of his 
 subsequent acts and declarations is incomoetent. Taylor v. Robinson, N. S. i. 
 316. 
 
 67. Antecedent debt, where constitutes a purchaser for value. See Le Breton 
 T. Peirce, N. S. i. 35. 
 
 68. Where an obligor in a bond is fraudulently deceived into signing by a 
 co-obligor, the bond is not thereby made void. Bigdoiv v. Come.gys, 0. S. "iv. 
 768. 
 
 69. Where one of two persons must suffer loss by the fraud of a third person, 
 he who reposes the first confidence must bear the loss. IJ. 
 
 70. Fraud and concealment will prevent the running of the Statute of Limit- 
 ations—and equity will grant relief. Calcote v. Stanton, 0. S. iii. 50. 
 
 71. Slaves fraudulently sold for less than their value, vendee held liable by 
 creditors of vendor for the difiference. Williamson's Ex'r v. Goodwin, 0. S. iii. 
 53. 
 
 72. A contract will not be rescinded on the ground of fraud or misrepresent- 
 ation in procuring it, unless upon clear and satisfactory proof. Marphy v. Dun- 
 ning, N. S. xii. 121. 
 
 73. Where there is laches in setting up thd fraud, until suit brought on the 
 contract, a finding that the fraud is unproven will not be reversed, unless upon 
 a very clear and decided preponderance of evidence. Id. 
 
 74. Courts have power to set aside or vacate decrees of divorce for fraud or 
 imposition, as in the case of other judgments, and will exercise that power 
 where such fraud or imposition is clearly established. Adams v. Adams, N. S. 
 xii. 236. 
 
 75. Where judgment-creditors sue to recover the value of property fraudu- 
 lently sold by thei,r debtor, judgment cannot be rendered in their favor without 
 
FRAUD. 465 
 
 relief from valuation or appraisement laws. Whitehall v. Crawford, K. S. xii. 
 661. 
 
 76. One who participates in the fruits of a fraud is equally liable with the 
 party originally committing it. Lincoln v. Claflin, N. S. viii. 250. 
 
 77. The declarations of each are evidence against the other, though made in 
 their absence. Id. 
 
 78. Interest is not allowable as a matter of law in torts. Id. 
 
 ,79. A payment in Confederate notes, after the surrender of the Confederate 
 armies, to one ignorant of the fact, is a fraud upon him. Blalock v. Phillips, 
 N, S. viii. 312. 
 
 80. A conveyance intended to delay a creditor even temporarily is void. Swat 
 T. Tinslar, N. S. viii. 442. , 
 
 81. Where two persons are engaged in defrauding third parties, equity will 
 not relieve either, as against the other, from the consequences of his misconduct. 
 Stiwart V. Acklej/, N. S. viii. 442. 
 
 82. Where one purchases land for several associates, it is a fraud to charge 
 them more than the price actually paid, and the excess may be recovered. Short 
 V. Stevenson, N. S. x. 67. 
 
 83. Where the presentation of a claim within the proper time has been pre- 
 vented by the fraudulent concealment of a deceased party, a bill in equity lies to 
 obtain satisfaction out of the surplus in the hands of the heirs. Sugar River 
 Bank v. Fairbanlcs, N. S. x. 197. 
 
 84. A delay to commence proceedings for four years after discovery of the 
 claim, is too long. Id, 
 
 8.5. Actual fraud is for the jury ; legal fraud where the facts are ascertained is 
 for the court. McKibhin v. Martin, N. S. ji. 406. 
 
 86. The retention of possession by the vendor of chattels whenever they are 
 capable of delivery is a fraud in law. Id. 
 
 87. A party defrauded in a contract is not debarred of his rights, unless his 
 delay to assert them amounts to a waiver. Martin v. Ash, N. S. x. 533. 
 
 88. The owners of any property may form an association or partnership with 
 others, and may sell their property to the company at any price agreed on, pro- 
 vided there be no fraudulent representations made by them, and no snch confi- 
 dential relation arises, as to make them liable to account for any profit realized 
 on such sale. Densmore Oil Co. v. Densmore et al., N. S. ix. 96. 
 
 89. But where persons have formed an association, or are dealing in contem- 
 plation of one, then they stand in a confidential relation to each other and to all 
 ■who may subsequently become members, and they cannot purchase any property 
 and sell it to the company at an advance without a full disclosure of all tlie 
 facts. If they do so the company may compel them to account for the profit. 
 Id. 
 
 90. An oil company was formed upon property belonging to some of the de- 
 fendants ; the valuation of the property was represented by stock to a certain 
 amount, and part of this stock was given by the defendants who had owned the 
 land to the other defendants who became the active parties in getting up the com- 
 pany. Held (no misrepresentation being proved), that neither class of the de- 
 fendants were liable to other subscribers to the stock of the company. Id. 
 
 . 91. In the examination of questions of fraud, courts will look into all the 
 the circumstances, and while positive proof is not required, mere suspicion will 
 not be deemed sufficient ground to establish it. Waddingham's Executors v. Lo- 
 ker, N. S. ix. 193. 
 
 92. A person holding a warranty deed of land as security for a loan, is not 
 chargeable with fraud if, in order to obtain payment, he, at the request of the 
 other parties, gives a warranty deed of the same land to a third person who fur- 
 nishes money to pay the original loan, although the title proves not to be good, 
 if it does not appear that he knew of the defect. Grant v. Grant, N. S. ix. 194. 
 
 93. No action lies on false oral assurance of the credit of a corporation by the 
 treasurer. Mc Kinney v. Whiting, 'S. S. iv. 187. 
 
 94. An action to (brcclose a mortgage which has not been discharged, but has 
 been delivered up to the mortgagor, together with the note which it was given to 
 secure, may be maintained by proving to the satisfaction of the jury that the note 
 has never in fact been paid, and that such delivery of the note and mortgage was 
 procured through the fraud of the mortgagor, in falsely representing that another 
 wortiilcss note and mortgage of real estate, delivered to and accepted by thg 
 
 30 
 
466 FRAUD. 
 
 mortgagee in exchange therefor, were good and sufBclent. Grimes v. Kimball, 
 N. S. i. 568. 
 
 95. If a creditor, knowing that his debtor is in failing circumstances, takes 
 from him, for part of his claim, a mortgage substantially covering all his pro- 
 perty, and gets the debtor to obtain the indorsement of another person for another 
 part, without revealing the fact of the mortgage, this is fraud upon the indorser, 
 and discharges him from liability. Lancaster County Bank v. Albright, 0. S. i. 
 633. 
 
 96. If the vendor of a horse, with actual knowledge of his defective eyes, 
 merely suggests a doubt as to their soundness, this is no less suppressio veri and 
 suggestio falsi than if no such doubt were intimated, but is rather an aggrava- 
 tion (jf the fraud. Baker v. Sealiorn, O. S. i. 379. 
 
 97. Fraud in sale of land. See Inadequacy of Price. 
 
 98. This court has power, under General Statutes, c. 107, sect. 4, to declare a 
 marriage void into which a man was induced to enter by confiding in representa- 
 tions of the woman whom he took for his wife that she was chaste, when in fact 
 she was with child by another man, if her husband repudiated her as soon as he 
 had reason to know the fact. Reynolds v. Reynolds, "S. S. i. 568. 
 
 99. A court of equity will not relieve on a general charge of fraud, but It 
 must be alleged in what the fraud consists and jiow it has been effected. New 
 Brunswick, ^c. Railway Co. v. Conybeare, N. S. i. 373. 
 
 100. The purchaser of a note and a mortgage given as security therefor, who 
 had an opportunity to examine the property described in the mortgage, cannot 
 maintain an action of tort against the seller for falsely and fraudulently repre- 
 senting to him that the security of the mortgage was undoubted, and the property 
 conveyed was of great value over and above all the encumbrances, and amply 
 worth the amount of the note, and could be sold for its face at any time. Veaseo 
 v. Doton, N. S. i. 569. 
 
 101. It is competent for the partnership to show that a note of the firm was 
 fraudulent in its inception as against the firm, and that the payee not only knew 
 it, but was party to the fraud. Carrier et al. v. Cameron, N. S. xiv. 588. 
 
 102. Insolvency of vendee at the time of purchase is not sufficient evidence of 
 fraud to set aside sale of goods, and enable the vendor to replevy. Rodman v. 
 Thalheimcr, N. S. xiv. 199. 
 
 103. He who seeks the rescission of a contract on the ground of fraud must 
 prove his right to the relief. Bailey v, Litten, N. S. xiv. 393. 
 
 104. Fraud in obtaining grant of land voids the grant. Russell's Heirs v. 
 Randolph, 0. S. iii. 560. 
 
 105. Acquisition of rights through fraud of third person. If the owners of 
 property have intrusted it to an agent for a special purpose, and the agent, in 
 
 ■ violation of his duty, has unlawfully consigned the same to be sold, with direc- 
 tions to remit the proceeds to a private creditor of his own, and such creditor 
 upon being informed, by a letter from the consignee, of the consignment of the 
 property and directions in reference to the same, manifests his assent thereto by 
 unequivoeal acts, and the property is sold by the consignee, and bills of exchange, 
 payable to the agent's creditor or his order, are purchased with the proceeds, and 
 remitted in » letter addressed to him, in compliance jvith the directions, and the 
 creditor, after receiving notice of the intended remittance, and after manifesting 
 his assent thereto, and after the remittance is actually made, but before it is re- 
 ceived, Jearns for the first time, of the manner in which the agent became pos- 
 sessed of the property, and of his wrongful acts in reference to it, the original 
 owners of the property camiot maintain an action for money had and received 
 against ««di creditor to recover the amount collected by him upon the bills of 
 exchange. Le Breton v. Peirce, O. S. ix. 737. 
 
 106. Where the directors of a company, by fraudulent representations, induce 
 persons to pay deposits, a director who was not in office when the frauds were 
 committed, but continues in office after he was or might have been aware of the 
 frauds, is liable to the depositors. Beechinffv. Lhyd, 0. S. iv. 125. 
 
 107. No court has authority to entertain a question that involves a charge of 
 fraud in the legislature, as a moans of setting aside a public law passed by it. 
 Sunhury Sf Erie Railroad Co. v. Cooper, 0. S. vli. 158. 
 
 108. A party who has obtained the passage of a private Act of Assembly by 
 bribery, imposition or other fraudulent means, would, perhaps, not be entitled to 
 any benefit from it, if the fraud be shown. Id. , 
 
FRAUD— FRAUDS, STATUTE OF. 467 
 
 \ 
 
 109. No court has authority to entertain a charge of dishonest motives agninst 
 the legislature as a means of showing that any act of le2;islation is unconstitu- 
 tional, Sanbury 4r £r!e Railroad Co. t. Cooper, O. S. vii. 158. 
 
 110. A debt fraudulently contracted is not discharged by an adjudication in 
 bankruptcy. Re Pettis, N. S. vii. 695, 
 
 111. The creation of a debt by f rivud is not a ground for refusing a discharge 
 to a bankrupt. Matter of Eosenfidd, N. S. vii. C18. 
 
 112. By the term, "fraudulent preference," used in the Bankrupt Act, is 
 meant only a preference in fraud of the Bankrupt Act, that is, contrary to its 
 provisions. Id. 
 
 113. Partner in firm about to fail may use his private estate to pay private 
 creditors, and conveyance to private creditors of his real estate is not to bo pre- 
 sumed fraudulent. Bank v. Fitch, N. S. vii. 59. 
 
 114. Separate defeasance withheld from record, valid, and will be enforced 
 between parties. ClarJc v. Gondii, N. S. vii. 763. 
 
 115. Infringement upon trade-mark should bo enjoined where the defence is 
 the fraud or imposition of pliiintiff. Smith v. Woodruff, N. S. vii. 191. 
 
 116. Fraud by an agent of a railroad company in issuing an illegal quantity 
 of stock — how far binding upon the company, Ketchum v. Bank of Commerce, 
 O. S. iii. 145. 
 
 FEAUDS, STATUTE OF. 
 
 1. Studies in the law of. N. S. xiii. 593, 602, 721. 
 
 2. The defendant having retained the plaintiff as liis attorney in any litigation 
 that might grow out of a conveyance to him by his brother, John Adams, who 
 had failed ; and in consideration of such retainer promised verbally to pay him 
 one-half of a debt, due to the plaintiff from said John, the promise was within 
 the Statute of Frauds. FuUam v. Adams, N. S. iv. 460. 
 
 3. A verbal promise to pay the debt of another, where the original debt still 
 subsists, is never legally binding, except where the promisor has received the 
 funds or property of the debtor for the purpose of being so applied, so that an 
 obligation or duty rests upon him, as between himself and tlie debtor, to make 
 such payment, whereby his promise, though in form to pay the debt of another, 
 is in fact a promise to perform an obligation or duty of his own. Id. 
 
 4. A retainer of an attorney is a suflficient consideration to support a written 
 promise to pay such attorney a debt due him from another. Id. 
 
 5. Promises to pay the debt of another discussed. Note to Fullam v. Adams, 
 N. S. iv. 473. 
 
 6. Contract for purchase of land — parol guaranty as to quantity not enforce- 
 able. Dtjer V. Graven, N. S. iv. 383. 
 
 7. Where a judgment-creditor agrees to accept the promise of a vendee of 
 land, to pav the judgment-debt which is alien against it, and such debt is credited 
 against the" purchase-money, the contract is not within the statiite. Bishears v. 
 Rawe, N. S. X. 67. 
 
 8. A purchaser in possession of land, wlio has paid a portion of the considera- 
 tion and promised to pay the rest, cannot set up the statute, in a suit by the 
 vendor for the balance of the money. Cagger v. Lenning, N. S. x. 135. 
 
 9. An agreement to sell "in consideration of the sum of $700," is sufficient 
 to satisfy the Statute of Frauds, if signed by both parties. Foot v. Webb, N. S. 
 X. 471. 
 
 10. A parol agreement made by the vendees of land at the time of a convey- 
 ance to them, cannot be enforced. Kiddv. Carson, N. S. x. 474. 
 
 1 1 . Any credit given to a third party prevents a recovery against a defendant 
 on a parol guarantee. Norris v. Graham, N. S. x. 474. 
 
 12. A parol promise to pay the debt of another in consideration of forbear- 
 ance to sue the original debtor, is within the statute and cannot be enforced. 
 TTiomas v. Delphij, N. S. x. 474. ^ 
 
 13. The i-ight to use a church edifice for worship is an interest in real estate, 
 and must bo fn writing and signed by the party, to be valid. Brumfield v. Car- 
 son, N. S. X. 665. ,j ., . 
 
 14. An agreement, made by the owner of property, sold under a mortgage, 
 •with the purchaser, for the owner to remain in possession and after paying the 
 debt and expenses take a reconveyance, being by parol, is void by the Statute of 
 Frauds. Lnomis v. Booiais, N. S. x. 744. 
 
468 FEAUDS, STATUTE OF. 
 
 15. Where the defendant told the plaintiff he was not ahle to marry her then, 
 but promised her he would marry her within four years, it not appearing tliat the 
 parties understood tliat the promise was not to be performed within one year, 
 such promise is not within the Statute of Frauds. Laivrence v. Cooke, N. S. ix. 
 194. 
 
 16. A contract of insurance for one year is not within the Statute of Frauds. 
 Walker v. Metropolitan Ins. Co., N. S. ix. 195. 
 
 17. An agreement that if one finds a purchaser of certain lands within a fixed 
 time, for a certain price, he may have all the purchaser will give above that price, 
 and the owner will sell and convey at such price, is not a contract within the 
 statute. Heyn v. Philips, N. S. ix. 322. 
 
 18. Promise of a father to pay physician for his attendance on his dauirhte ■, 
 twenty-two years old, is not within the Statute of Frauds. Eddy v. Davidson, N. 
 S. ix. 639. 
 
 19. Sale of growing trees, with right to enter to remove them, is an interest 
 in land, and within the statute. Howe v. Batchelder, N. S. ix. 7 1 9. 
 
 20. Part performance will take a contract out of the Statute of Frauds, when 
 it has been in part performed in such manner that a refusal would be a fraud on 
 the other party. Eyre v. Eyre, N. S. viii. 119. 
 
 21. Wliero a verbal contract is to be performed within a year by one party, 
 but not by the other, the question whether the Statute of Frauds applies or not 
 depends on whether the suit is brought against the party who was to perform his 
 part within the year. If it is so brought, the statute would not apply, but if 
 brought against the party whose agreement was not to be performed within the 
 year, then the statute would be a bar. Sheehy v. Adarene, N. S. viii. 326. 
 
 22. An agreement to sell hop roots in the ground, is not within the statute as 
 being an interest in real estate. Webster v. Zielly, N. S. viii. 441, 
 
 23. A subsequent written recognition of a contract void by the Statute of 
 Frauds is not only a ratification of it, but is a sufficient note or memoraudum of 
 tlie contract within the statute. Id. 
 
 24. Whether a contract is within the statute, depends upon whether it is essen- 
 tially for the sale of goods, or for the skill and labor of a workman expended 
 upon them. Pitkin r. Noyes, N. S. viii. 572. 
 
 25. The delivery and acceptance of part of the wood the first winter, on a con- 
 tract of sale of certain cords of wood, the vendor to deliver as much as he could 
 one year, and the balance the next, will take the case out of the statute. Gault 
 v. Brown, N. S. viii. 572. 
 
 26. The authority of an agent contracting for the sale of land need not be in 
 writing. Pringle v. Spaulding, K. S. viii. 572. 
 
 27. .\n agreement for the sale of land, to be valid, must be binding on all the 
 parties by whom made. Snyder v. Neefus, N. S. viii. 572. 
 
 28. The owner who conveys must be bound by writing, but the other party 
 for anything contained in the statute need not so be bound. Johnston v. Cowan, 
 N. S. viii. 755. 
 
 29. New York statute requiring contracts to be in writing does not apply to a 
 contract made in Bhode Island. Allen v. Schuchardt, N. S. i. 13; and see foot 
 note page 1 5. 
 
 30. But as to the practice in England, see footnote Id. 15, 16. 
 
 31. Where land is paid for jointly by A. and B., and the deed is made to A. 
 alone, under such circumstances that a trust, not within the Statute of Frauds, 
 would result by implication of law in favor of B., the character of such trust is 
 not altered by an express verbal agreement or by a declaration of A. tha.- he 
 holds the land subject to such trust ; and therefore it may be proved by parol. 
 McDonald et al. v. McDonald, N. S. v. 675. 
 
 32. Absolute voluntary conveyance, though grantee agrees orally to hold for 
 grantor, raises no trust in Massachusetts. Titcomb v. Merrill, N. S. v. 382. 
 
 33. Parol agreement to cut and draw growing timber, payment upon delivery, 
 within. Ellison v. Brighnm, N. S. v. 633. 
 
 34. What is sufficient part payment. Teed v. Teed, N. S. v. 380. 
 
 35. What is such possession and part payment as will take parol agree- 
 ment for purchase of land, out of. Merithew v. Andrews, N. S. v. 510. 
 
 36. What constitutes part payment required by Statute of Frauds in contracts 
 for goods. Dow V. Worlhen, N. S. v. 251. 
 
 37. Original undertaking, not withm. Wldtcomb v. Kephart, N. S. v. 440. 
 
FRAUDS, STATUTE OF. 469 
 
 38. Verbal promise of directors of corporation to pay its debts, in considera- 
 tion of election, witliin. Maule\. Bucknell, N. S. v. 379. 
 
 39. Contract to be performed more than one year from making. Barllett v. 
 Wheeler, N. S. v. 441. 
 
 40. Eemedy on contract, void by. Id. 
 
 41. Contract to work for two years, is within. Emeri/ v. Smith, N. S. v. 699. 
 
 42. Court of equity will interfere against party intending to make Statute of 
 Frauds an instrument of fraud. Ei/nn v. Dox, N. S. vi. 122. 
 
 43. Parol promise to pay part of profits from sale of real estate not within. 
 Trowbridge V. Wetherbee, N. S. vi. 122. 
 
 44. Agreement which may be fully performed within a year, not within. Esty v. 
 Aldric/i, N. S. vi. 248. 
 
 45. Agreement for sale of lands, signed by vendee only, void. De Beershi v. 
 Piiige, N. S. vi. 563. 
 
 46. A parol agreement to pay for services in land is void. Campbell v. Camp- 
 bell, N. S. xiii. 195. 
 
 47. Such agreement is void only as to the land ; the party may sue for what 
 such services are reasonably worth. Id. 
 
 48. Contracts within the Statute of Frauds, because not put in writing, are 
 not illegal. Montgomery v. Edwards, N. S. xiii. 650. 
 
 49. The inability to enforce them is an immunity which the defendant may 
 waive. Id. 
 
 50. The parol promise of defendant to pay all claims that might thereafter 
 arise against the administrator, in consideration of his putting all the assets 
 of the estate in his hands, is not within the statute. Randall v. Kelsey, N. S. 
 xiii. 650. 
 
 51. If the name of the agent, with whom a contract for the purchase of real 
 estate is made, appears in the written memorandum, the statute is satisfied, 
 although the name of the principal is not disclosed. Walsh, v. Burton, N. S. 
 xiii. 655. 
 
 52. A purchaser of lands from a grantee, whose deed was void against the 
 creditors of his grantor by the statute, will not be protected by the provision in 
 favor of bonS, fide purchaser for value, unless he has parted with something of 
 v:',lue in the purchase. Mingus v. Condit, N. S. xii. 465. 
 
 53. What was held a sufiicient sale and delivery within the Statute of Frauds. 
 Vixon V. Buck, N. S. iv. 122. 
 
 54. Under the Statute of Frauds a distinction is made between a contract for 
 the sale of goods and one for work and labor in the manufacture of them. The 
 former only is made void by the statute unless it be in writing. Passaic Man'g 
 Co. V. Hoffman, N. S. xi. 105. 
 
 55. Where the contract is for an article coming under the general denomina- 
 tion of goods, wares or merchandise, and is made with one who makes and sells 
 that kind of article to all who traffic m it, the quantity required , and the price 
 being agreed upon, it is a contract of sale, whether the maker apd vendor has 
 the required quantify on liand or has to make it afterward. Id. 
 
 56. But if what is contemplated by the agreement is the skill, labor, care or 
 knowledge of the maker ; or if it would not have been produced except for the 
 order ; or if it is ordered at a certain price with the knowledge that the maker 
 ii not supplied and will have to make it ; or if, when produced, it is unfitted for 
 file as a general article of merchandise, being adapted only for use by the 
 person ordering it, then the contract is one for work and labor, and not within 
 the statute. Id. 
 
 57. The cases on this subject examined and discuss'ed by Dalt, C. J. Id. 
 
 58. Proof of a parol contract, delivery of possession, payment of purchase- 
 money in part and valuable improvements, are sufficient to take a case out of the 
 statute. Mdlikea v. Dravo, N. S. xi. 197. 
 
 59. Resulting estates or tho.se created by operation of law are not made void 
 by the Statute of Frauds of Kansas. Moore v. Wade, N. S. xi. 396. 
 
 " 60. Taking possession of premises under a parol agreement for their convey- 
 ance, will take the case out of the Statute of Frauds, but part payment will not. 
 Green and Wife v. Richards, N. S. xii. 56. 
 
 61. Where a number of articles are sold at an auction on separate bids, the 
 whole will be regarded as one contract, and if the aggregate price is above 833, 
 within the statute. Jenness el al. v. Wendell, N. S. 57. 
 
470 FRAUDS, STATUTE OF. 
 
 62. Delivery and acceptance of part of the pooils ivill tate the entire contract 
 from the operation of the statute. Jenness et at. v. Wendell, N. S. xii. 57. 
 
 63. Whether the sale was extended through more than one day or not. Id. 
 
 64. Where a contract is for an article coming under the general denomination 
 of goods, wares, &c., it is within the statute, though the subject does not then 
 exist, hut if what is contemplated is the peculiar skill or care of the maker, it is 
 not within the statute. Prescott t. Locke, N. S. xii. 262. 
 
 65. A conveyance or mortgafte for pre-existing delit is not a valuable con- 
 sideration within the statute. Mingus v. Condit, N. S. xii. 465. 
 
 66. To constitute a payment within the meaning of the statute there must be 
 an actual transfer or delivery of the thing or money agreed to be given as pay- 
 ment. Walrath v. Ingles, N, S. xii. 600. 
 
 67. The statute requires it to be paid at the time of the contract ; a delivery 
 afterwards will not do. Id. 
 
 68. 6. held a note against S., and J. held a note against G. H. agreed by 
 parol with J. that if he would surrender his note against G., and take G. 's note 
 against S., he would pay it. Held, that the contract was within the Statute of 
 Frauds. Crosbyv. Jerolommi, N. S. xii. 661. 
 
 69. Delivery of goods to the vendee is not sufficient to take a case out of 
 the statute ; he must accept and receive them. Gibbs r, Benjamin, N. S. xii. 
 791. 
 
 70. Verbal agreement to convey land followed by payment of purchase- 
 money passes no title, nor even license to enter. Whitcher v. Morey, N. S. vii. 
 188.. 
 
 71. Acceptance of bill of goods in a warehouse in another state with order on 
 warehouseman will not take the sale out of the statute. Boardntan v. Spooner, 
 N. S. vii. 188. 
 
 72. Name stamped on the bill with a press, not sufficient of itself to constitute 
 a memorandum in writing. Id. 
 
 73. Receipt by mail, by purchaser, of a bill of goods with terms, &e.j will 
 not~take the purchase oat of the statute. Pike v. Wieting, N. S. vii. 508. 
 
 74. Verbal contract of sale of 1900 bushels of potatoes is taken out of statute 
 by delivery of one load, though defendant had previously written to plaintiff not 
 to purchase any more for him. Danforth v. WaJker, N. S. vii. 635. 
 
 75. But plaintiff had no right after receiving the letter to purchase more and 
 recover for loss by frost or rot. Id. 
 
 76. A sale of any growing produce, in actual existence at the time, though 
 not in a state of maturity, is not a sale of an interest in land within the statute. 
 Purner v. Pierci/, N. S. xiv. 256. 
 
 77. If the purchaser of goods, under an agreement void by the statute, accepts 
 delivery, the contract becomes valid. Anson v. Vreker, N. S. xiv. 256. 
 
 78. No action can be maintained upon a promise to pay a debt in consideration 
 of forbearance to collect, without proof of a written memorandum. Lang v. 
 Ilenni, N. S. xiv. 318. 
 
 79. The statute is as much violated by parol proof of a part as of the whole 
 of an agreement. Id. 
 
 80. A promise to pay the workmen in a shop, as part of the consideration for 
 the purchase of the stock, if assented to by the woikmen, is within the statute. 
 Id. 
 
 81. An agreement not to carry on a business in a certain locality for five 
 vears, is within the statute and void if not m writing. GotlschcUk v. Witter, N. 
 S. xiv. 58.3. 
 
 82. A parol agreement by a party who has purchased the interest of a partner, 
 to pay one-half the old partnership debts as a consideration, is not within the 
 statute. Haggerty v. Johnston, N. S. xiv. 587. 
 
 83. Statute of Frauds not a defence in a case of resulting trust. Brannin v. 
 Brannin, N. S. vii. 698. 
 
 84. Party promising to bid at sale for another who stays away, relying on the 
 promise, will be held a trustee if he buys for his own benefit, notwithstanding 
 the Statute of Frauds. Id. 
 
 85. Delivery of the bill of lading is, under the circumstances, a sufficient 
 delivery of the goods to take the ease out of the operation of the Statute of 
 Frauds. Audenreid v. Randall, N. S. vii. 659. 
 
FRAUDS, STATUTE OF— FUGITIVE SLAVE. 471 
 
 S6. Fixing a boundary line by parol is not within the Statute of Frauds : no 
 estate is created thereby. Bobo v. Richmond, N. S. xiv. 642. 
 
 87. A promise to release in consideration of marriage is void by the Statute 
 of Frauds. Brenner v. Brenner, N. S. xiv. 584. 
 
 FRAUDULENT AGREEMENT. 
 
 1. In a yu! ioni action ajiainst the creditor in a fraudulent judgment, or the 
 frrantee in a fraudulent conveyance, for the statutory penalty, it is necessary that 
 the intent of both parties to the transaction should be nltimately to defraud 
 creditors. A design to hinder or delay them merely for a time is not within the 
 statute. Barnnm q. t. v. HnchM, N. S. iv. 56. 
 
 2. But if either party consists of more than one person, those who participate 
 in the fraudulent intent are ilot relieved from liahility under the statute, by tlie 
 fact that all such persons are not guilty of a criminal design. Id. 
 
 FRAUDULENT CONVEYANCE. See Assignment ; Equity. 
 
 FRAUDULENT DEBTOR, voluntary conveyance by, in his lifetime. See Will. 
 
 FRAUDULENT REPRESENTATIONS. 
 
 1. Title of pledgee as against holder of personal property obtained by fraudu- 
 lent representations. Kings ford v. Merry, 0. S. v. 568. 
 
 2. Fraudulent representation by which life insurance was effected, action by 
 the company to procure its cancellation. Insurance Co. v. Levy, 0. S. i. 243. 
 
 FRAUDULENT SALE, of. the goods of a storekeeper — change of possession ne- 
 cessary to effectuate sale of chattels as against creditors. Bee Debtor and 
 Creditok. Hugusx. Robinson, 0. S. ii. 181. 
 
 FREE PASSENGER. See Railkoad ; Negligence. 
 
 Where the plaintiff was a free passenger on railroad train the plaintiff cannot 
 recover unless he can show that the negligence was fraudulent or reckless. 
 Wells V. New York Central Railroad Co., 0, S. vi. 713. 
 
 FREE TICKET. 
 
 How far railroad companv liable for injury to passengers travelling on. Rail- 
 road Co. V. Derby, 0. S. i. 397. 
 
 FREIGHT. See Carrier; Contract; Delivery : Shipping. 
 
 1. A contract giving certain individuals the exclusive right to transport cer- 
 tain freight over a railroad is void from considerations of public policy. Union 
 Locomotive Exprees Co. v. Erie Railway Co., N. S. xiii. 390. 
 
 2. The shipper is liable for freight, though not the owner of the goods. Wooster 
 v. Tarr, N. S. iv. 183. 
 
 3. Freight paid and not earned may be recovered. Chase v. Insurance Co., N. 
 S. iv. 446. 
 
 4. A carrier finding himself prevented from delivering freight is not justified 
 in sending the goods to another place and forwarding them from there to the 
 consignee. Strong v. Carrington, N. S. ii. 287. 
 
 FREIGHT BROKER. 
 
 Revocation of a--thority to receive freight. Adams v. Avery, 0. S. i. 53. 
 
 FREIGHT IN PASSENGER TRAINS. 
 
 Companies not compelled to carry. See Railroad. 
 
 FUGITIVE FROM JUSTICE. 
 
 A state may repel from its borders an unacceptable population, whether pau- 
 pers, criminals or fugitives, and may punish her own citizens for assisting such 
 fugitives. Moore v. The People, O. S. i. 206. 
 
 FUGITIVE SLAVE. See Constitutional Law. 
 
 1 Though the penaltv given by the fourth section of the Act of 1793, with 
 regard to fugitives from "labor, is repealed bv the Act of 1850, the reservation of 
 the right of action by the owners of such fugitives, for the injuries enumerated 
 therein, is not affected. 0:ivL'r v. Kauffman, O. S. i. 142. 
 
 2. "Notice"' under the act means knowledge ; it is not necessary that a specific 
 written or verbal notice from the owner of fugitive slaves should be brought 
 
472 FUGITIVE SLAVE— GAMBLINa. 
 
 home to the defendant, in an action for " harborin!» and concealing," in order t-> 
 make him liable. Oliver v. Kauffman, O. S. i. 142. 
 
 3. " Harboring," within the act, is not synonymous with "concealment," 
 but consists in any entertainment or shelter for an unlawful purpose. Mere acts 
 of charity, however, will not constitute the offence. Id. 
 
 4. In order to enable a plaintiff to recover in an action for "harboring and 
 concealing" fugitive slaves, he must prove that the slaves were pursued by him- 
 self or his agent, for the purpose of reclamation ; and that the defendant, knowing 
 them to be fugitives, harbored or concealed them in order to further their escape, 
 and to enable them to elude pursuit. Id. 
 
 5. Where, in such action, it is shown that in consequence of the harboring 
 and concealment, tlie slaves escaped, and were lost to the owner, the measure of 
 damages is the value of the slaves, with interest, if the jury think fit ; otherwise, 
 however, if the interference of the defendant was only after the plaintiff had 
 abandoned all pursuit of his slaves. Jd. 
 
 6. In such action the plamtiff is entitled to recover entire damages against all 
 engaged in furthering the escape, and in frustrating his pursuit. Jd. 
 
 7. Possession of slaves otherwise shown to be such, is prim^ facie proof of 
 title, and no formal bill of sale is necessary to establish ownership. Id. 
 
 8. In the action for "harboring and concealing," under the Act of 1793, it 
 appeared that the owner of the slaves, in carrying them from Arkansas to Mary- 
 land, from which state they afterwards escaped, had passed them on the national 
 road of the state of Pennsylvania ; but that, on their arrival in Maryland, they 
 had been duLy registered, according to law, as slaves. Held, that such transit 
 had not rendered them free, but that their status was to be determined by the law of 
 Maryland, Id. 
 
 9. Any words or actions tending to effect an escape, and which lead to that 
 result, are sufficient, under the Act of 18.50, to implicate tlie defendant in the 
 charge of aiding or abetting the escape. Weimer v. Sloane, 0. S. iv. 174. 
 
 10. An intention to escape must appear, but such an intention may be inferred 
 from the facts. Every one is presumed to have intended the result necessarily 
 and legitimately flowing from his acts. Id. 
 
 11. The master of a fugitive slave having him apprehended by the marshal, in 
 pursuance of a Warrant, cannot be arrested for assault and battery committed on 
 such fugitive while making the arrest, in aid and at the request of the marshalj 
 before the final hearing and order of the jndge. United States v. Morris, 0. S. 
 ii. 348. 
 
 12. A warrant for the apprehension of a fugitive slave is in full force until the 
 final hearing and order, and after a rescue a fresh pursuit may be made by the 
 marshal and owner with the same warrant. Id. 
 
 13. The service of process under the United States cannot be interrupted by 
 the arrest of the officer or person aiding him in serving such process, or in any 
 other manner, by means of state process or warrants. Id. 
 
 FUND (JOINT), 
 
 Where there are both joint and separate effects for distribution, the joint cred- 
 itors can in equity only look to the surplus estate of a partner. Rogers, Assignee, 
 V. Merauda, Assignee, 0. S. vii, 35. 
 
 FUNDS IN BANK. 
 
 A check drawn on a bank by a depositor is to be regarded in law, as in com- 
 mercial usage, as a transfer to the payee of the fuuds drawn for. Fogarties v. 
 Slate Bank, 0. S. viii. 393. 
 
 FUTURE ACQUISITIONS. 
 
 A power to seize future chattels is not an assignment of them. Reeve v. Whit- 
 more; N. S. iii. 439. 
 
 FUTURE ADVANCES. 
 
 A inortgage m the common form was given to secure moneys covenanted to be 
 advanced as buildings upon the premises progressed . Held, that the mortgage had 
 priority over claims of mechanics from the date of its record and not from the 
 date of the actual advances. Cudwaladery. Montgomery, S. iii. 169. 
 
 GALLOWAY, JOSEPH. Biographical notice of. 0. S. i., i.ote to page 75. 
 
 GAMBLING. 
 
 1. A speculative option to deliver goods within a certain time at a specified 
 
GAMBLING— GIFT. 473 
 
 price, where the object of the parties is not a snle anil delivery of the goods, but 
 a settlement in money on difl'erences — commonly culled a " put," — is a wagering 
 contract and void, either as within the statutes against gambling or as against 
 public policy. In re Chandler, N. S. xiii. 310. 
 
 2. Money won at play cannot be recovered back. Welsh v. Cutler, N. S. iii. 
 127. 
 
 3. A bet or wager in New Hampshire is void. Johnson v. Ferris, N. S. ix. 
 715. 
 
 4. Money paid to procure a bet or wager cannot be recovered back. Id. 
 
 -' 5. Party cannot recover for services in fitting horse for a race on which money 
 
 was bet. Mosher v. Griffin, N, S. ix. 715. 
 
 GAME. 
 
 Acts regulating the taking of fish within the limits of a state, are within the 
 authority of the state legislature. Dunham v. Lamphere, 0, S. iv. 757. 
 
 GAS. Larceny of. See Reg. r. While, 0. S. ii. 116. 
 
 GATE. 
 
 1. Where a grant is made of a free passage-way over land, and at end of lane 
 there is a gate, such gate is not a wrongful construction. Cannery y, Brooke, 
 N. S. xiii. 399, 
 
 2. If the gate is not a practical hindrance to the use of the passage it is not 
 illegal. Id. 
 
 GENEKAL AVERAGE. See Contribution. 
 
 1. As to losses on the great lakes. See Allen v. Newberry, 0. S. vii. 436. 
 
 2. The owners of a vessel may maintain a bill in equity to recover contribution 
 from the owners of the cargo, if the master, in order to avoid the danger of being 
 driven, broadside on, upon a reef, sacrifices the chance of saving her from this 
 peril, and runs her over the reef and upon the beach, and thus saves a portion 
 of the cargo which would have been lost, if she had gone to pieces upon the reef. 
 Merithew v. Sampson, N. S. i. 764. 
 
 GIBSON, JOHN B., Chief Justice of Pennsylvania. Sketch of the character of. 
 0. S. i. 504. 
 
 GIFT. See Insoltent. 
 
 1. Transfer of possession necessary to pass title by. Cooper v. Burr, N. S. v. 
 567. 
 
 2. Facts constituting a valid gift. Id. 
 
 3. Bights of donee mortis causa, and subsequent legatee of same. Note to 
 Craige v. Kittredge, N. S. vi. 249. 
 
 4. "Money deposited by a grandmother in a savings bank, to the credit of her 
 grandchildren, will be held on her death to be a perfected gift for them. Gard- 
 iner V. Merritt, N. S. x. 127. 
 
 5. A gift obtained by one standing in a confidential relation to the donor, is 
 primH facie void, and the burden of proof is on the donee to show that it was 
 free, voluntary, and unbiassed. Todd v. Grove, N. S. x. 408. 
 
 6. The testimony of the wife is insufficient to prove the gift of a note, of a 
 third person, from the husband to the wife. Trowbridge v. Holden, N. S, x. 537. 
 
 7. The indorsement of payment of part of a mortgage, made by the mortgagee 
 under mortgagor's direction, is indicative of a gift or forgiveness of part of the 
 debt. Green, Administrator, v. Langdon et al., N. S. xiii. 458. 
 
 8. In the absence of any rule of law to prevent the donor's intention, it must 
 
 be sustained. Id. 
 
 9. Though delivery and acceptance of a gift are essential to its validity, where 
 tangible property is concerned, yet where it is part of a sum due, it does not 
 admit of technical delivery. Id. 
 
 ID. An assignment of a policy of life insiurance never delivered is invalid. 
 Trough's Estate, N. S. xiv. 122. 
 
 11. A gift of a chose in action cannot be made by words infuturo or in praisenti 
 unaccompanied by delivery. Id. 
 
 12. Where donor retains possession of a bond or chose in action given or 
 assigned, he may cancel it. IL 
 
 13. Intention to deliver does not execute the gift. Id. 
 
474 GIFT— aOVERNMENT. 
 
 14. A seal does not import a consideration, if the instrument is not delivered. 
 Trough's Estate, N. S. xiv. 122. 
 
 15. A bond indorsed to another, but retained in indorser's possession, does not 
 pass to the indorsee. ZimmRrman v. Stref.per, N. S. xiv. 123. 
 
 16. The indorsement indicates a prospective gift and without delivery is in- 
 operative. Id. 
 
 17. In the case of an intended gift of a legal estate, capable of a legal convey- 
 ance not made, the gift is revocable ; there being a locus pcenitentim as long as it 
 is incomplete. Wadhams\. Gay, N. S. xiv. 419. 
 
 18. A gift or trust, capable of being made by a legal conveyance, is as im- 
 perfect when created by an executory decree providing no means of execution 
 as when created by an executory contract. Id. 
 
 19. Where a fund is given to persons to distribute acceptance of fund con- 
 stitutes an engagement to distribute it. Peel v. Board of Police, N. S. v. 98. 
 
 20. A father acting in good faith may make a valid gift to his minor son of 
 his future earnings, though insolvent at the time. Atwoodv. Ilolcomb, N. S. xii. 
 715. 
 
 21 . In view of death — subject discussed. 0. S i. 1 ; and see Headley v. 
 Kirby, O. S i. 25. 
 
 GOLD COIN. See Cosstitctional Law ; Legal Tesder. 
 
 1. No greater value than currency, if applied to payment of debt without any 
 special contract as to sale thereof. Bush v, Baldrey, N. S. vi. 122. 
 
 2. Value of English sovereigns. Id. 
 
 3. A contract to pay in gold and silver coin is a contract to deliver a certain 
 weight of gold and silver. Butler v. Horwltz, N. S. viii. 443. 
 
 4. Where a note is payable in specie, the words " in specie" are descriptive 
 of the kind of dollars in which the note is liable. Trebilcock v. Wilson, N. S. 
 XI. 151. 
 
 5. The legal tender acts do not allow an agent to receive gold and pay cur- 
 rency to his principal. Simphn v. Low, N. S. vii. 508. 
 
 6. Where gold coin was depoisited as security and not returned, damages must 
 be measured by the amount of gold as money. Frothinghnm "v. Morse, N. S. v. 698. 
 
 7. A contract for a certain number of " dollars," though stipulated to be paid 
 in gold, is not a contract for gold as bullion. Buchleger v. Sclmltz, N. S. v. 95. 
 
 8. The measure of damages for non-performance of a contract to pay money 
 isthe number of legal dollars. Id. 
 
 GOODS MADE TO ORDER. See Title to Manupactueed Abtiole. 
 
 GOODS OF A DANGEROUS CHARACTER. 
 
 Liability of shipper as to ; see Brass v. Maitland, 0. S. v. 565. 
 
 GOODS SOLD BY SAMPLE. 
 
 Implied warranty of. Allen v. Schuchardt, N. S. i. 13. 
 
 GOOD-WILL. 
 
 1. Good-will; subject discussed. N. S. xiv. 1, 329, 649, 713. 
 
 2. A contract by the vendor of a good-will, &c., not to engage in a special 
 business within the state, so long as the vendee should continue in the said busi- 
 ness, is not void as in restraint of trade, and may be enforced by a court of equitv. 
 Bear v. Chase, N, S. xiv. 563. 
 
 3. The defendant sold the good-will of his business to the plaintiff under a 
 written agreement, one of the terms of which was as follows : — "That the de- 
 fendant should not carry on, or assist in carrying on, a business such as is now 
 carried on at 17 Lupus street, Pimlico, being a general drapery and hosierv 
 business, within two miles of that place." The defendant afterwards went into 
 the district for the purpose of collecting old debts, and being there was asked by 
 some persons to supply them with goods, which he did. Held, in an action for 
 breach of the agreement agamst the defendant for carrying on business within the 
 prescribed limits, that in order to do so to snch an extent as to be a breach of 
 the contract, it was not necessary he should have either place of business or house 
 within the district. Brampton v. Beddoes, N. S. ii. 375. 
 
 GOVERNMENT. 
 
 1. Not liable on an implied assumpsit for the torts of its officers. Gibbons r. 
 United Slates, N. S. ix. 199. 
 
G0VERN3IENT— GROUND-KENTS. 475 
 
 2. The {rovcrnment ns a contractor cannot be held responsible for the acts of 
 the government as a sovereign. Jones v. United States, N. S. v. 353. 
 
 3. Such acts, whether legislative or executive, alfect contracts of the govern- 
 ment only as they affect the contracts of private persons. Id. 
 
 4. An astronomer who assists contracting engineers in their survey and is paid 
 with their money, but who was not appointed by them and cannot be dischai'ged 
 by them, and who is not resposible to them, is not their agent. Id. 
 
 .5. An Act of Congress does not take away a prerogative of the government, 
 except by special and particular words. Id. 
 
 6. The exclusive statutory right of the government to examine a claimant in 
 this court, and use or withhold his testimony at its option, is such a prerogative, 
 and is not taken away by the act declaring that " in courts of the United States 
 there shall be no exclusion of any witness" " because he is a party to the issue 
 tried." Id. 
 
 7. Therefore, in the Court of Claims a party cannot testify in his own behalf. 
 Id. 
 
 8. The jurisdiction of the Court of Claims stated and reviewed. Id. 
 
 GOVERNOR, 
 
 The governor of a state cannot be coerced by mandamus to perform an official 
 duty. People ex rel. Sarless v. Secretary of State, N. S. iii. 314. 
 
 GRACE, DAYS OF. 
 
 Distinction as to, between bills and checks, defined. Martin v. Bailey, 0. S. iv. 
 632. 
 
 GRAND JURY. 
 
 1. When a prisoner has been indicted by the grand jury upon evidence which 
 appeared solely by affidavits accompanying the indictment, and agreed to be read, 
 and the facts in which were conceded to exibit no legal evidence whatever of the 
 violation of a statute concerning false pretences, the court will quash the indict- 
 ment. The People y. Herman Ristenbatt, O. S. iii. 418. 
 
 2. Indictment defined and authorities for definition cited. Id. 
 
 3. The grand jury is without authority to indict for want of jurisdiction of the 
 subject-matter, except upon sworn legal testimony, duly taken before a consti- 
 tuted authority. Id. 
 
 4. If there is any legal proof of the offence charged, no matter how little, the 
 court will not quash the indictment, but will send it for trial to a petit jury. Id. 
 
 GRANT. 
 
 1. Grant of a "way" carries an easement only. Aqueduct Co. v. Chandler, 
 N. S. V. 186. 
 
 2. In a statutory grant, unless there are restrictive words, there is an imme- 
 diate transfer of title. Schulenberg v. Hurriman, N. S. xiv. 4.'>9. 
 
 3. No one can question the validity of a grant by the United States, when the 
 latter is satisfied. Id. 
 
 4. No one can take advantage of a condition subsequent, but the grantor or 
 his heirs. Id. 
 
 .'). The manner of asserting the condition to restore the estate depends on the 
 character of the grant. Id. 
 
 GRANTOR AND GRANTEE. 
 
 1. Grant with condition to support the grantor and in case of failure the deed 
 to be void, the condition is in the nature of a penalty, and failure to perform in- 
 volves forfeiture. Spaulding v. Hallenbeck, N. S. ii. 763. 
 
 2. Admissions of a grantor held to be evidence as part of res gestce against 
 plaintiffs who were identified in interest. Id. 
 
 GREAT BRITAIN. 
 
 The Crimes Act of 1857 can only take effect within the United States and 
 within British waters. People v. Tyler, O. S. viii. 403. 
 
 GROUND-RENTS. 
 
 ■ 1. Ground-rents in Pennsylvania — subject discussed. 0. S. ii. 577; 0. S. 
 iii. 65. 
 
 2. The sum to be paid for the extinguishment of ground-rent is not an estate, 
 but a debt when the owner of the laud has elected to pay it. SchoUenberger v. 
 Brinton, N. S. iii. 591. 
 
476 GROUND-RENTS— GUARANTY. 
 
 3. Therefore, where a ground-rent is payable in " lawful silver money of the 
 United States," and there is a clau.se of extinguishment on the payment of a 
 certain sum, " lawful money, as aforesaid," the latter is payable in legal tender 
 notes of the United States. SchoUenberger v. Brintoii, N. S. iii. 591. 
 
 4. The alienee of the grantee may maintain covenant against the alienee of 
 the grantor of a ground-rent. Springer v. Phillips, N. S. xii. 788. 
 
 5. A covenant to pay principal of rent after ten years does not lapse by failure 
 to demand it, and the rent becomes irredeemable. Id. 
 
 6. It will not be held irredeemable unless the intent of the parties is very clear 
 to make it so. Jd. 
 
 7. An action for the principal is a demand, and the owner of the land should 
 prepare a release and bring the money into court, where his rights will be pro- 
 tected. Jd. 
 
 8. Arrears accruing after decease of tenant can only be collected out of the 
 realty. Williams's Appeal, N. S. iv. 312. 
 
 9. But personal representatives may be sued therefor, judgment being restricted 
 to the land bound. Id. 
 
 10. The law of ground-rents in Pennsylvania. 0. S. iii. 65. 
 
 11. A ground-rent is a debt. SchoUenberger v. Brinton, N. S. vi. 636. 
 
 12. Ground-rent payable in lawful silver money is redeemable in such money. 
 Id. , And see Mervine v. Sailor, Id. 637 ; Davis v. Burton, Id. ; and Kroener v. 
 Calhoun, Id. 
 
 13. Ground -rent payable in lawful money. Davis v. Burton; Kroener v. 
 Colhoun, N. S.' vi. 637. 
 
 14. Bail for stay of execution on a judgment for ground-rent, who pays and 
 obtains an assignment of the judgment, does not obtain priority over a judgment 
 for arrears subsequently accrued. Decou's Appeal, N. S. iv. 315. 
 
 GROWING CROPS. 
 
 1. Effect of Revised Statutes making them assets in the hands of executor, 
 upon law of their ultimate disposition. Bradner v. Faulkner, N. S. vi. 122. 
 
 2. They go primarily to executor ; if not necessary for payment of debts, to 
 the beneficiary under the will. Id. 
 
 3. Devise of farm carries crops growing thereon. Id. 
 
 GUANO ISLAND. 
 
 Discovery will not give title to guano islands irrespective of Act of Congress 
 18th August 1856. Amer. Guano Co. v. United States Guano Co., N. S. v. 252. 
 
 GUARANTIES. ' 
 
 Acceptance of ; subject discussed. 0. S. v. 383. 
 
 GUARANTY. 
 
 1. The defendants purchased of the plaintiff his interest in a stock of goods, 
 and in part payment therefor transferred to him the note of B., indorsing thereon 
 a guaranty of payment, but which guaranty on its face expressed no considera- 
 tion. Held, that the case was within the decisions which hold that where a guar- 
 anty is made for the purpose of paying the party's own debt, it is not a collateral, 
 but an original nndertnking, and so good without expressing the consideration. 
 Fowler v. Clearwater, N. S. i. 311. 
 
 2. A contract to be " accountable that B. will pay you for glass, paints, &c., 
 which he may require in his business, to the extent of fifty dollars," is a con- 
 tinuing guaranty. The limitation is not of the credit to B., but of the extent of 
 the guarantor's liability. Rindge v. Judson, N. S. i. 439. 
 
 3. A firm sold out their partnership effects to another, who agreed verballv to 
 pay the firm debts. One of the firm creditors sued the purchaser for his debt, 
 relying on the contract of sale, without showing that he was a party to it. Held, 
 that he could not recover, for the agreement upon which the action was brought 
 was not in writing and signed by the party to be charged therewith, as required 
 by the Act of 26th April 1855. Shoemaker v. King, N. S. i. 562. 
 
 4. The word " accepted" written on an account, does not necessarilv import 
 a guaranty by the party making the indorsement. Hatch v. Antrim, H. S. i. 
 640. 
 
 5. One who has, by an instrument indorsed upon a lease, guaranteed the ful- 
 filment of the covenants in the lease by the lessees, is bound by his guamnty, 
 although the lease is execnted by only one of the lessees, where it appears that 
 
GUAKANTY. 477 
 
 both lessees occupied the demised premises, and had possession of all the per- 
 sonal property mentioned in the lease, for the whole term. McLaughlin v. Mc- 
 Govern, N. S, ix. 237. 
 
 6. Effect of the words " we guaranty the collection of tlie above to Cyrus 
 Brown." Brown v. Wolf, 0. S. iv. 698. 
 
 7. Failure of a lessor to notify the guarantors of the rent on a two years' 
 lease of non-payment for ten months, does not release their liability. Leonard 
 V. Shirts, N. S. x. 744. 
 
 8. The liability of guarantor for rent in arrear can only be discharged by pay- 
 ment, release, or other satisfaction. Kingsburi/ v. Williams, N. S. viii. 635. 
 
 9. To recover against a guarantor the creditor must prove due diligence iiginn«t 
 Ills debtor or his insolvency ; he need not prove both. W'jods v. Sherman, N. S. 
 xii. 791. 
 
 10. Reasonable diligence is a question for the jury. Id. 
 
 1 1. Ex vi tei-mini a guaranty of a contract is a concurrent act and part of the 
 original. Id. 
 
 12. An extension of the time of payment of a bond does not discharge a 
 guarantor, if the agreement to extend was made alter the maturity of the bond. 
 Aai/s- V. Wells, N. S. xi. 59. 
 
 13. An agreement to extend which will dischal-ge a surety must he such as in 
 law will amount to an estoppel upon the creditor to prevent him bringing suit 
 until the extension expires. Id. 
 
 14. An agreement to extend will not be inferred from the acceptance by the 
 holder of a bond of a collateral security, which does not mature until after the 
 bond. Id. 
 
 15. Where two bills of goods were sold nt different times, one for $230, and 
 one for $110, upon a written guaranty " to let bearer buy merchandise to amount 
 of $200 or $.300," the guarantor's liability will be confined to the first bill. 
 Bced V. Fish, N. S. xi. 461. 
 
 16. A guaranty of payment imposes an obligation to pay at the maturity of 
 the security, and the holder need not wait for the result of a suit against the 
 principal debtor, but may demand the money from the guarantor immediately 
 upon the dishonor of the paper. City of Memphis v. Brown, N. S. xi. 629. 
 
 17. A written order to " let the bearer, Mr. O., have any little things he may 
 stand in need of, and I shall be good for the same," held to be a direct original 
 undertaking. Scott v. Mijnit, 0. S. iii. 57. 
 
 18. In case of guaranty, demand of payment of the principal debtor, and notice 
 of his default, are requisite to cliarge the guarantor only where the fact on which 
 his liability is made dependent rests peculiarly within the knowledge of the 
 guarantee, or depends on his option. Bashford v. Shaw, 0. S. iv. 609. 
 
 19. But where the contingency which determines the liability of a guarantor 
 is one which is known to him, or which he is bound to know, or where each 
 party has in legal contemplation equal means of information, the guarantor 
 must take notice at his peril. Id. 
 
 20. In order to discharge a guarantor from liability on the ground of want of 
 notice of the default of the principal debtor, there must be not only a want of the 
 notice within a reasonable time, hut there must be also some actual loss or dam- 
 age thereby caused to the guarantor. And if such loss or damage does not go 
 to tlie whole amount of the claim, but is only in part, the guarantor is not wholly 
 discharged, but only protanto. Id. 
 
 21. If the principal debtor be solvent when the note falls due, and due notice 
 of the default be not given, and the principal afterwards, and before notice, be- 
 comes solvent, the guarantor is discharged. Id. 
 
 22. The continued insolvency of the principal debtor from the time of the ma- 
 turity of the debt, as a general thing, dispenses with the necessity of the notice 
 in order to charge the guarantor. Id. 
 
 23. Where the undertaking of the party is to guaranty the payment of the 
 note of another, after final process, the prosecution of the claim to final process 
 against the maker of the note is essential, in order to charge the guarantor. 
 Id. 
 
 24. But an omission to bring suit against the original debtor, within a reason- 
 able time, will not discharge the guarantor from liability, where the terms of 
 the guaranty do not describe the degree of diligence to be used in the proceeding 
 by suit, and where, in consequence of the continued insolvency of the principal 
 
478 GUARANTY— GUARDIAN AND WARD. 
 
 debtor from the time of the maturity of the debt, the guarantor suffered no loss 
 by the delay. Bathford v. Shaw, 0. S. iv. 609. 
 
 25. An agreement under seal to submit to arbitration, and a guarantee by a 
 third person, not under seal, that one of the parties shall abide the award, cannot 
 be sued upon in the same action. Wallis v. Carpenter, N. S. vii. 119. 
 
 26. Agent's promise to execute the order is an original undertaking. Good- 
 win V. Boiodin, N. S. vii. 4.39. 
 
 27. Suretyship and guaranty distinguished. Allen v. Hubert, N. S. v. 192. 
 
 28. Bill of sale of "horse, kind and sound," is a warranty of soundness. 
 Brown V. Biffelow, N. S. v. 575. 
 
 29. Purchaser of real estate with warranty cannot, before eviction, detain 
 purchase-money on account of an encumbrance or delect. Wilson v. Cochran, 
 N. S. iv. 640. 
 
 30. A mortgagee who assigns the mortgage and guaranties the debt is a proper 
 party to a suit to foreclose. Jarman v. Wisemll, N. S. jdii. .331. 
 
 31. That the liability of the guarantor does not take effect until the remedy 
 against the mortgagor shall be exhausted is no objection to the jurisdiction of a 
 court of equity. Id. 
 
 32. The contract of a guarantor is his own private contract. McMillan v. 
 BuWs-head Bank, N. S. x. 431. 
 
 33. A firm sold out their partnership effects to another, who agreed verbally 
 to pay the^firm debts. One of the firm creditors sued the purchaser for his debt, 
 relying on the contract of sole, without showing that he was a party to it. Held, that 
 he could not recover, for the agreement upon which the action was brought was 
 not in writing and signed by the party to be charged therewith, as required by 
 the Act 26th of April 1855. Shoemaker v. King, N. S. i. 562. 
 
 34. A guarantor is entitled to notice of principal's default. Gaff -v. Sims, N. 
 S. xiv. 56. 
 
 35. If notice is not given guarantor is discharged. Id. 
 
 GUARDIAN AND WARD. 
 
 1. Guardian is liable for losses in consequence of disregard of his license to 
 sell and of careless and imprudent investments. Harding v. Lamed, N. S. ii. 
 252. 
 
 2. The assent of the ward is immaterial. Id. 
 
 3. Commissions do not always cover every allowance that can bo made to 
 guardians. Morgan -v. Morgan, N, S. ii. 701. 
 
 4. Where guardian's bond has been improperly marked " cancelled," itis not 
 error for Orphans' Court to order the word " cancelled" to be stricken off. Ncw- 
 comer^s Appeal, N. S. ii. 633. 
 
 5. The court has no power to order a guardian's bond to be cancelled while 
 the guardianship remains and its duties are unperformed. Id. 
 
 6. Change of ward's domicile. KirhUind v. Whateli/, N. S. ii. 380. 
 
 7. In the absence of an express contract, no action can be sustained against a 
 guardian to charge him personally with the support and education of his ward. 
 And if he has permitted his ward to remain in the care and custody of another, 
 without any express contract for any definite period of time, he may terminate 
 his personal liability to pay for their support and education by giving notice to 
 that effect, although at the time of giving notice the ward is sick and unable to 
 be removed. Spring v. Woodworth, N. S. i. 765. 
 
 8. One who has been appointed under the laws of another state to be the 
 guardian of a child whose legal domicile is in that state, has no absolute right to 
 the custody of the person of his ward in this Commonwealth ; but his ofiicial 
 position will be considered by the court, as an important element in determining 
 to whom the custody of the child shall bo granted. Woodworth v. Spring, N. S. 
 i. 765. 
 
 9. One who has applied for or obtained an appointment in this Commonwealth, 
 as guardian of minor children who have been under her care with the consent 
 of their guardian appointed in another state, may, nevertheless, maintain an 
 action against the latter for their support and education, after the time of her 
 own appointment. Spring v. Woodworth, N. S. i. 247. 
 
 10. Guardian of several — should file separate accounts. Gaston's Appeal, 0. 
 S. ii. 120. 
 
 11. Guardian or committee of lunatics — restoration of estate — effect of. 
 Hummer v. Patterson, 0. S. i. 697. 
 
GUARDIAN AND WARD. 479 
 
 12. Any transactions hctivcen » gnardinn anri n ward recently arrived at afre, 
 by wliich the guardian obtains an advantajre or bounty, will be deemed primS, facie 
 fraudulent, on account of the recent confidential relations of the parties, and tho 
 burden of proof will be upon the beneficiary to show that the gift or arrangement 
 was fair and conscientious. Garvin v. Williamis, N. S. xi. 642. 
 
 13. Evidence in this case held not sufficient to support a verdict in favor of 
 the guardian. Id. 
 
 14. Investing ward's money in n note of a single business house is not rea- 
 sonable care. Clark v. Garjiekl, N. S. iv. 312. 
 
 15. Trustees and guardians are not authorized to invest in the stock of an 
 incorporated company, whether a bank, railroad, canal, manufacturing or min- 
 ing corporation, and will be liable for any loss on such investment. WorraU's 
 Appeal, 0. S. ii. 447. 
 
 16. An improper investment by a trustee may be confirmed by the subsequent 
 assent of the cestui quo trust, if sui juris. Id. 
 
 1". A trustee is to be allowed six months for the investment of funds coming 
 into his hands, during Which time interest will not run ogninst. Id. 
 
 IS. Commissions are to he deducted from the principal of such funds, as of the 
 time of their receipt, and interest charged against the trustee upon the residue 
 only. Id. 
 
 19. An infant at the age often years was brought up on habeas corpus upon 
 the application of the mother, who was surviving parent, the father, wlio was a 
 marine, having died without appointing a guardian. The object of the mother, 
 who was a Roman Catholic, was to remove tlie infant from a school under the 
 ■Commissioners of the Eoyal Patriotic Fund, at which she had placed her in 18.55, 
 and to have her educated in a Roman Catholic school. Hclil, that the mother, as 
 guardian for nurture, was entitled to the custody of the person of the child ; that 
 the court could not examine the infant as to her wishes or religious belief; that 
 the mother was not bound to educate her in the Protestant faith, nor had she lost 
 her right over her by committing her to the care of tho Commissioners of the 
 Royal Patriotic. Fund ; and therefore tho court was bound to order her to be 
 delivered to her mother. lieg. v. darke, 0. S. v. 537. 
 
 20. As a general rule the wishes of the fitther as to the religious belief in which 
 his children, after his death, are to be brough up, will be followed. Li re Kellers, 
 Minors, 0. S. V. 561. 
 
 21. A purchase of land by a guardian ad litem of .an infant defendant, pend- 
 ing a suit in chancery involving the title to the land, is champertous and void. 
 Gavrjh V. Grecnlaws, O. S. vii. 591. 
 
 22. A guardian who neglects to sue for a debt due his ward for an unreason- 
 able time, whereby the debt is lost, is responsible for its amount and no subse- 
 quent diligence, after the insolvency of the debtor, will excuse him. Wills's Ap- 
 peal, 0. S. ii. 184. 
 
 23. Where guardians, who have neglected to pursue a debtor of their wards 
 till his insolvency, subsequently, in satisfaction of the debt, take a conveyance 
 of land, which is worthless, for part, and also receive a part of the money due 
 in hand ; a receipt of his proportionate share of the money by one of the wards, 
 after arriving of age, will not by itself relieve the guardian from rcsponsibilitv. 
 Id. 
 
 24. Where a resident in Louisiana died intestate, leaving two minor children 
 surviving him, who had been placed, in the father's lifetime, in the care of an 
 uncle in the state of New Tork, and he having, after the father's death, been duly 
 appointed their guardian there, an application made in Louisiana by the uncle to 
 set aside proceedings in that state, appointing the grandmother tutrix, will be re- 
 fused ; neither will the court decree a sum of money to be paid to the New York 
 guardian for the support and education of the children. Powers v. Mortee, 0. 
 S. iv. 427. 
 
 25. Authority conferred on a guardian in New York can give him no right to 
 come into Louisiana and take the minor's property tliere,'which is already in the 
 possession of a legal tutrix. Id. 
 
 26. The rights and duties of guardians arc strictly local. Id. 
 
 27. The domicile of the minor must follow the domicile of the father. Id. 
 
 28. Deed to A., his hcu's and assigns, with acknowledgment of receipt of the 
 purchasc-monev from A., guardian, &c., is notice to A.'s creditors that the land 
 is held in trust'. Lancrnftv. Consen, N. S. vii. 121. 
 
480 GUARDIAN AND WARD— HABEAS CORPUS 
 
 29. If a guardian wrongfully invest the trust-money in land in his own name, 
 it will not be liable for his debts. Bancroft v. Consen, N. S. vii. 121. 
 
 30. Converting stock belonging to his ward's estate, is liable for the highest 
 price the stock attains after conversion. Lamb's Appeal, N. S. viii. 635. 
 
 31. Practice on appeal from decree of court allowing account. Patrick v. 
 Cowles, N. S. iii. 702. 
 
 32. A guardian who* purchases a house and lot expressly subject to the pay- 
 ment of the balance of a mortgage given to his vendor, incurs a personal respon- 
 sibility to the amount of the unpaid mortgage, though the purchase was made by 
 the sanction and direction of the Orphans' Court. Woodward Sf Craig's Appeal, 
 N. S. i. 60. 
 
 33. Bat the Orphans' Court, as a court of equity, may dispose of the trust fu^d 
 BO as to protect the guardian. Id. 
 
 34. May maintain action in his own name for debt due his ward. Thomas v. 
 Bennett, N. S. ix. 640. 
 
 35. Liability of surety for making improvident investment. Richardson r. 
 Boynton, N. S. vi. 320. 
 
 36. The surrogate possesses power to remove a guardian on proper cause being 
 shown. In re Dawson, an Infant, 0. S. iv. 241. 
 
 GUEST. 
 
 The liability of an innkeeper extends to money stolen from the trunk of a 
 guest. Stanton v. Leland, 0. S. vii. 264. 
 
 GUNPOWDER. 
 
 A clause in a policy of fire insurance that the insurers would not be liable for 
 fires arising from explosion (if gunpowder, applies to case of fire originating 
 from the explosion of gunpowder on the premises. Greenwald v. Insurance Co., 
 O. S. vii. 282. 
 
 HABEAS CORPUS. 
 
 1 . A return to a writ of habeas corpus issued by a judge of the United States, 
 under the Judiciary Act of 1789, showing an imprisonment under process, legal 
 and valid on its face, is conclusive, and precludes further inquiry into the cause 
 of imprisonment. Ex parte LIfford, Marshal, et al., 0. S. -t. 659. 
 
 2. But the seventh section of the Act of Congres.s of the 2d of March 1833, 
 expressly confers on a judge of the United States the power to issue the writ of 
 habeas corpus in all 'cases of imprisonment by any authority of law, for any act 
 done or omitted in obedience to a law of the United States ; and where such 
 imprisonment is for an alleged violation of a state law and by state authority, the 
 judge or court issuing the habeas corpus may inquire into the circumstances 
 under which the alleged crime was committed, with a view to question whether 
 the act complained of was done or omitted in the proper discharge of ofiScial 
 duty, and under the authority of the United States ; and if it appears the act was 
 BO done or omitted, the judge or court is authorized to discharge the party from 
 such imprisonment, id. 
 
 3. A marshal having a person in custody under lawful process, is bound to 
 retain such custody, and in so doing may use such force as is necessary ; and in 
 the proper use of such force is not guilty of a crime against the law of the state 
 in. which the transaction occurred. Id. 
 
 4. A state judge has no jurisdiction to issue a habeas corpus for a prisoner in 
 the lawful custody of an officer of the United States, with the knowledge that he 
 is so held, and if, on the return of the writ, it appears the imprisoned party is 
 held by an officer of the United States, under legal process, the jurisdiction of the 
 state judge ceases, and all further proceedings by him will be coram non judice. Id. 
 
 5. A sheriff', or other state officer, having a so-called writ of habeas corpus, 
 under the Ohio statute of 1856, and having knowledge that the prisoner named 
 in the writ is in the custody of an officer of the United States, under legal pro- 
 cess, is under no obligation to servo or attempt to serve such writ; and his re- 
 turn of the facts is a sufficient justification for not serving it. Id. 
 
 6. A marshal having custody of a prisoner under the authority of the United 
 States, is not bound to surrender such prisoner upon the demand of a state officer, 
 having a writ issued under the said Oliio statute, requiring him to take the pris- 
 oner from such custody. Id. 
 
 7. But if tlie habeas corpus in the hands of the state officer is issued in good 
 faith, and is the well-known writ of that name, requiring the officer of the United 
 
HABEAS CORPUS. 481 
 
 States having the custody to bring the prisoner before the judge or court issuing 
 the writ, with the cause of the capture and detention, it is the duty of such officer 
 to obey such writ, as thereby he does not part with the custody of the prisoner ; 
 and such obedience will not be in conflict with his duty. Ex parte Lifford, 
 Marshal., et al., O. S. V. 659. 
 
 8. It is well settled, by the adjudications both of the courts of the Union and 
 the states, that in case of concurrent jurisdictions, the tribunal or court to which 
 jurisdiction first attaches shall retain it ; and neither has a right to interfere with 
 the other. Id. 
 
 9. The first clause of the 14th section of the Judiciary Act of 1789, which 
 provides that the Supreme, Circuit and District Courts of the United States 
 " shall have power to issue writs of scire facias, habeas corpus, and all other writs 
 not specially pi-ovided for by statute, which may be necessary to the exercise of 
 their respective jurisdictions, and agreeable to the usages and principles of law," 
 does not authorize said courts to issue a habeas corpus, unless it is necessary in 
 aid of jurisdiction, in a case or proceeding there pending. Ex parte Everts, 0, 
 S. vii. 79. 
 
 10. The case of a father claiming the custody of an infant child is not one in 
 which a habeas corpus can issue, by a court of the United States, as ancillary to 
 the exercise of its jurisdiction, under the above cited clause of the Act of '89. 
 Id. 
 
 11. Nor can a circuit court of the United States talce jurisdiction under the 
 11th section of the Act of '89, although the father is a citizen of another state, 
 as the matter in dispute has no pecuniary value, and cannot be estimated in 
 money. Id. 
 
 12. The benefit of 31 Charles 11, ch. 2 (the Habeas Corpus Act), secured to 
 inhabitants of Maryland by article 3d of Bill of Rights In re Walsh, O. S. ii. 542, 
 
 13. Act of 1809, ch. 125, sect. 2, declares that application for habeas corpus 
 may be made " to the chancellor, or any judge of the Court of Appeals, or of 
 the county courts, in vacation time," Held, that this act applies to the judges 
 of the existing Court of Appeals. Id. 
 
 14. The 4th article of the new constitution, sect. 2, provides : " That the 
 Court of Appeals shall have appellate jurisdiction only, and the jurisdiction 
 which the present Court of Appeals now has," &c. Held, that this section does 
 not abrogate the second section of Act of 1809, ch. 125. Qimre, can the Court 
 of Appeals, when in session in term-time, grant a habeas corpus 1 Id. 
 
 15. Held, that the Act of 1853, ch, 238, confers upon the Circuit Courts and 
 their judges such power only as the county courts or the Court of Chancery, 
 while in session in term-time, could have and exercise, and that in this particular 
 it does not in effect repeal the Act of 1809. Id. 
 
 16. Held, that no individual judge of the Court of Appeals during the term- 
 tijne of the court has jurisdiction to grant the writ of habeas corpus, that juris- 
 diction being expressly limited to vacation-time. Also, that if this application 
 has been made in vacation-time the writ would unhesitatingly have been granted. 
 Id. 
 
 17. By the English Constitution, Parliament alone has power to suspend the 
 writ of habeas corpus. Per Taney, Chief Justice. Ex parte John Merrtjman, 
 O. S. ix. 524. 
 
 18. By the Constitution of the United States, Congress only has power to sus- 
 pend the writ of habeas corpus, and such power does not reside in the I'resident. 
 
 Id. 
 
 19. The 14th section of the Judiciary Act of 1789, relating to the constitu- 
 tional privilege of the writ of habeas corpus, discussed and interpreted. Id. 
 
 20. The history of the Habeas Corpus Act in England and in tlie United 
 
 States. Id. ... 
 
 21. A United States district judge, or a United States district court, has juris- 
 diction to issue the writ of habeas corpus and hear the case when the petitioner 
 is held under illegal restraint without any formal or technical commitment. 
 In re Emmet McDonald, 0. S. ix. 661, 
 
 22. The writ of habeas corpus may issue from a Federal judge whenever the 
 applicant is illegally restrained of his liberty, under or by color of the authority 
 of the United States, and such case is exclusively within the jurisdiction of the 
 
 Federal tribunals. Id. . , ■ ,i. a . r n 
 
 23. The question of jurisdiction is to be determined by the Acts of Congress 
 
 31 
 
482 HABEAS COEPUS. 
 
 and the decisions of the Supreme Court, the Circuit Courts, and the District 
 Courts of the United States, thereupon. In re Emmet McDonald, 0. S. ix. 661. 
 
 24. The construction and interpretation of the Acts of Congress of September 
 24th 1789, sect. 14 ; of March 2d 1833, sect. 7. [d. 
 
 25. The history of habeas corpus, under the Judiciary Acts and the Force Bill, 
 as drawn from the adjudicated cases, given and explained. Id. 
 
 26. The adjudicated cases on the habeas corpus in the Supreme Court, in the 
 • Circuit Courts, and in the District Courts of the United States, cited and com- 
 mented on. Id. ^ 
 
 27. The doctrines laid down in United States ex rel. Wheeler v. Passmore 
 Williamson, 0. S. iii. 729, reaffirmed. United States ex rel. Wheeler v. Passmore 
 Williamson, 0. S. iv. H. 
 
 28. Where a habeas corpus is issued by a master on behalf of slaves, alleged 
 to have been carried away by force from hira, and the defendant is committed for 
 a contempt in not making a proper return to the writ, the court will not entertain 
 9 motion to quash the proceedings upon the petition and sugestion of one of the 
 negroes that she is and was absenting herself from her master voluntarily, and 
 that she is not nor ever was in the custody, possession, power or control of thot 
 defendant ; such slave not coming or being brought personally within the juris- 
 diction or before the court in order to make the application. Id. 
 
 29. A writ of habeas corpus will not he allowed in the first instance, where it 
 appears on the face of the petition that the relator must be remanded at the hear- 
 ing. Ex parte Passmore Williamson, 0. S. iv. 27. 
 
 30. The legality of a commitment for a contempt by one court, cannot be. in- 
 quired into by another court, especially one of a different sovereignty, as in the 
 case between the Federal and state courts on habeas corpus or otherwise. Id. 
 
 31. Nor is it material in such case that there was want of jurisdiction over 
 the original proceeding, in the course of which the commitment for contempt 
 was made. Id. 
 
 \ 32. The 7th section of the Act of Congress on the 2d of March 1833, author- 
 izes any judge of the United States to issue the writ of habeas corpus, where an 
 officer of the United States is imprisoned for any act done or omitted to be done 
 in pursuance of a law of the United States. Ex parte Robinson, Marshal, O. S. 
 iv. 617. 
 
 33. It is the proper remedy where a marshal is imprisoned by the sentence of 
 a state judge, as for a contempt in not producing the bodies of certain persons 
 named in a writ of habeas corpus, issued by such judge, and if it appears from the 
 evidence that such persons were legally in the custody of the marshal, pursuant 
 to the provisions of the Fugitive Slave Act, and that his refusal to produce them 
 before the state judge was a paramount duty by the terms of said act,, the marshal 
 is entitled to his discharge under the said 7th section of the Act of 1 833. Id. 
 
 34. In ordering his discharge on a habeas a judge of the United States does 
 not assume a jurisdiction to review or reverse the sentence or judgment 6f the 
 state judge, but merely exercised a power expressly conferred by an Act of Con- 
 gress, id. 
 
 . 35. Although the authorities are not uniform as to the right of a state judge to 
 issue the writ of habeas corpus, where the imprisonment is under the authority 
 of a law of the United States, it is well settled that when the fact is proved that 
 the imprisonment is under such authority, the jurisdiction of the state judge is 
 at an end, and all subsequent proceedings are coram nonjudice. Id. 
 
 36. Where a United States officer, holding a prisoner by United States au- 
 thority, is served with a writ of habeas corpus issued by the state authority, it is 
 his duty to make due return to the writ ; and he acts within the true spirit' of the 
 law by producing the body of his prisoner before the court or judge issuing the 
 writ. United States v. Doss, N. S. xi. 320. 
 
 37. Where such officer makes return showing that he holds the prisoner by 
 United States authority, the state authority should abstain from longer interfer- 
 ing with the case, and all its proceedings thereafter are illegal. Id. 
 
 38. Where a prisoner is held for an offence over which the United States and 
 the state in which it was committed have concurrent jurisdiction, the govern- 
 ment which first assumes jurisdiction will retain it until'final judgment. Id. 
 
 39. If a state judge in combination with others, misuse his position and office 
 by makipg use of the law and his power for the purpose of accomplishing an 
 
HABEAS CORPUS. 483 
 
 ilnpvoper release, he, and those acting with him, are liaWe criminally for ob- 
 structing process of the United States. Vnited States v. Doss, N. S. xi. 320. 
 
 40. But if the judge acts bonfi, fide he is not liable criminall)', notwithstanding 
 his acts are illegal for want of jurisdiction. Id. 
 
 41 . Where a prisoner is brought before a judge in obedience to a writ of habeas 
 corpus, he is under the control of the judge, the writ of habeas corpus having 
 superseded the original process, and therefore a person taking charge of the 
 prisoner under the order of the judge issuing the writ, cannot, for that act alone, 
 be held guilty of obstructing United States process. Id. 
 
 42. Usual course of proceeding on application for the writ. Id. 
 
 43. When case may be brought in Supreme Court on error. Id. 
 
 44. Allowance or refusal of the writ, is matter of law. Id. 
 
 45. Right of person to discharge, arrested after the passage of the Act of 
 March 3d 1863. Id. 
 
 46. A party held under arrest by virtue of legal process of a court of compe- 
 tent jurisdiction, cannot be discharged upon habeas corpus, on the ground 
 that the statute creating the offence is unconstitutional. In re Harris, N. S. x. 
 67. 
 
 47. Authority of Circuit Courts to issue habeas corpus. Ex parte Milliqan, 
 N. S. vi. 566. 
 
 48. Purpose of Act of Congress, March 3d 1860, suspending. People v. 
 Gaul, N. S. V. 380. > i- fe f 
 
 49. The rebellion being ended, the Authority of the President under the Act 
 of 3d March 1863, § 1, to suspend the privilege of the writ of habeas corpus, 
 has expired. Commonwealth v. Frink, N. S. iv. 700. 
 
 50. The provisions of the treaty between the United States and Great Britain, 
 concluded 9th of August 1842, and the Act of Congress passed August 12th 
 1848, in respect to fugitives from justice, are of themselves a law which the 
 judges and magistrates of the Union may execute without other authorization. 
 In the matter of Thomas Kaine, 0. S. i. 247. 
 
 51. Habeas corpus by husband to regain custody of his wife will not be granted 
 when she is by her own desire living apart from him. Reg, v. Leggatt, 0. S. 
 V. 57. 
 
 52. Appeals and writs of error in, discussed. 0. S. i. 513. 
 
 53. Leading article upon the writ of habeas corpus. 0. S. ix. 705. 
 
 54. Exceptions do not lie to the discharge of a prisoner on habeas corpus by a 
 single judge. Wyeth v. Richardson, N. S. iii. 185. 
 
 55. Habeas corpus ad subjiciendum, and practice connected therewith — remarks 
 npon. O. S. iv. 257. 
 
 56. Habeas corpus by United States court to discharge marshal arrested under 
 process of state court. United States v. Morris, 0. S. ii. -348. 
 
 57. On a habeas corpus, the regularity of the ])roceedings of a court of com- 
 petent jurisdiction cannot be inquired into. A defendant was convicted of keep- 
 ing a disorderly house and sentenced to fine and imprisonment. The Court of 
 Common Pleas dismissed her petition for the benefit of the insolvent laws ; a 
 habeas corpus was refused. Commonwealth ex ret. Susan Wilson v. llie Keeper of 
 the Jail, 0. S. iv. 383. 
 
 58. The courts of the United States have power to issue writs of habeas corpus 
 to relieve from imprisonment persons confined under sentence of a state court, 
 where the record shows that the state court had no jurisdiction of the alleged 
 offence. Brown v. United States, N. S. xiv. 566. 
 
 59. Bridges was indicted, convicted and sentenced in a state court for perjury, 
 committed in a proceeding before a United Sfates commissioner, under an Act 
 of Congress. He sued out a habeas corpus before the United States Circuit 
 Court. Held— 
 
 (1.) That the indictment showed that the perjury alleged was not a crime 
 against the state, and that the proceedings of the state court were therefore void. 
 (2.) That the United States court had power to discharge the relator. Id. 
 
 60. Where a bankrupt is held under arrest on state process, the United States 
 District Court has no power to discharge on habeas corpus. lie Devoe, N. S. 
 Tii. 690. 
 
 61. Custody of infants belongs to father, but court will not, of course, on 
 habeas corpus, order them delivered to them. State v. Baird, N. S. vii. 'lOO, 
 
484 HABEAS C0EPU8. 
 
 62. Congress has no power to prohibit state judges from interfering with en- 
 listments by habeas corpus. Matter of O'Connor, N. S. vii. 60. 
 
 63. Section 8 of art. 1 of the constitution contains a delegation to Congress 
 of power to suspend the writ of habeas corpus. Warren v. Paul, N. S. iv. 157. 
 
 64. A person charged with a capital crime may submit evidence before trial, 
 either on motion or on habeas corpus. Lynch v. The People, N. S. iv. 733. 
 
 65. The Circuit Court of the United States may, by writ of habeas corpus, 
 examine the decision of the same court. Ex parte Yerger, N. S. ix. 57. 
 
 66. State courts have no right or power to continue proceedings under a writ 
 of habeas corpus in case of commitment under the authority of the United States, 
 Matter of Bopson, N. S. iii. 189. 
 
 67. Power of court on habeas corpus relative to the custody of children as 
 between the parents. Dumain v. Gwi/nne, N. S. v. 505. 
 
 68. The United States District Court has no power to issue habeas corpus 
 when the prisoner is in jail on charge of miivder preferred against him by a state 
 court. Note to Hughes v. Litsey, commenting on Ex parte McCann, N. S. v. 158. 
 
 69. Neither President, Congress nor Judiciary can disturb safeguards of civil 
 liberty, except so far as habeas corpus may be suspended. Ex parte Milli^an, 
 N. S." vi. 567. 
 
 70. Suspension of the privilege of writ of habeas corpus does not suspend 
 writ itself. Jd. 
 
 71. Discharge of prisoner on habeas corpus, where writ of error, in a crimi- 
 nal case, has been issued, operating as- a supersedeasj suificient bail will be re- 
 quired. Bryan v. Bates, N. S. vi. 438. 
 
 72. A petition for a habeas corpus by two deputies of the marshal of the United 
 States for the Eastern District of Pennsylvania, set forth that a warrant under 
 the Fugitive Slave Act of 1850, duly issued by a commissioner, having been 
 placed in their hands, they were resisted in its execution by the prisoner, who 
 succeeded in escaping ; and that they were subsequently arrested and imprisoned, 
 under color of a warrant from a justice of the peace, in the state of Pennsylva- 
 nia, charging them with an assault and battery, with an intent to kill, upon the 
 fugitive ; and prayed their discharge. The return to the writ merely set forth 
 the warrant of the justice, duly granted upon oath. Held, that the writ was 
 properly allowed under the Act of 1833 ; that evidence was admissible on the 
 part of the relators to show the true state of the facts, notwithstanding the re- 
 tarn ; and that such evidence, showing that the violence alleged, if any used, 
 was in discharge of the prisoner's duty under a law of the United States, they 
 must be discharged. Ex parte Jenkens, 0. S. ii. 144. 
 
 73. On a heai-ing on a habeas corpus under the Act of 183.^, the state, by virtue 
 of whose laws the arrest was made, is the only party entitled to be represented 
 ■by counsel ; neither the prosecutor nor the officer making the arrest have a right 
 to be heard. Jd. 
 
 74. The refusal of a writ of habeas corpus by one court is no bar to an appli- 
 cation to another court. Ex parte Alexander, 0. S. ii. 44. 
 
 75. A court can on habeas corpus deliver a party from imprisonment for a 
 contempt of court where the court committing the party has transcended its au- 
 thority by excess of punishment, or by a punishment unknown to the law, but 
 the question of contempt, if the court had authority over it, will not be inquired 
 into on habeas corpus ; nor will » writ of error lie in such case ; for every court 
 must be sole judge of the contempts against itself. Jd. 
 
 76. Under the Act of Congress of the 2d of March 1833, ch. 57, sect. 7 
 (commonly called the Eorce Bill), any judge of the Supreme or District Court 
 of the United States has authority to grant a writ of habeas corpus, where a 
 a prisoner in jail or confinement has been committed or confined " on or by any 
 authority or law, for any act done or omitted to be done in pursuance of a law 
 of the United States or any order, process or decree of any judge or court thereof. ' ' 
 Ex parte Jenkins, O. S. ii. 144. 
 
 77. The 7th section of the Act of Congress of 2d March 1833, commonly 
 called " The Force Bill," which authorizes the writ of habeas corpus to be issued 
 by the courts of the United States under certain circumstances for the protection 
 of officers and others acting with them, in execution of the laws of the United 
 States, is to be confined in its application to cases where there has been an avowed 
 purpose, by some authority or law of a state, to disregard an act of Congress, 
 
HABEAS CORPUS— HAY. 435 
 
 and to imprison or otherwise punisli the officers of the United States for enforcing 
 it, and operates, moreover, only in cases where such purpose appears on the 
 face of the proceedings. Where a habeas corpus has been issued in pursuance 
 of a statute by a United States court, it has no right to go behind the return to 
 the writ, and if it does, and discharges the relator upon evidence taken at the 
 hearing, snch discharge is inoperative and will be disregarded by a state court. 
 Thomas v. Crossin, O. S. iii. 207. 
 
 78. The marshal and deputy marshals of the Circuit Court for the Eastern 
 liistrict of Pennsylvania were arrested under a capias, in a civil action of assault 
 and battery, for abuse of power, brought in the Supreme Court of Pennsylvania. 
 They took out a habeas corpus to the Circuit Court. On the hearing, evidence as 
 to the real cause of action in the suit was entered into, and the relators dis- 
 charged. The sheriff returned these facts to the capias. An attachment was 
 applied for by the plaintiif against the sheriff for not bringing, in the bodies of the 
 defendants. The court held that the discharge by the United States court was 
 invalid, but refused the attachment under the circumstances, th^ plaintifi' having 
 unnecessarily delayed his application. It was decided, however, that the defend- 
 ants might be considered as discharged on common bail, and that the plaintiff 
 might proceed regularly in his action. Id. 
 
 79. Where the defendant in a habeas corpus makes an evasive or false return 
 thereto, he may be committed for a contempt, in order to compel obedience to the 
 writ. United States ex rel. Wheeler v. Williamson, 0. S. iii. 729. 
 
 80. The return to a habeas corpus, denying that the persons for whose benefit 
 the writ is issued are in the defendant's ' ' custody, possession, power or control," 
 may be traversed and proved false on the hearing. Id. 
 
 81. In a case where the relator and the defendant were citizens of different 
 states, a court of the United States granted a habeas corpus, the alleged detainer 
 being without any authority of law and a purely civil nature. Id. 
 
 82. The writ of habeas corpus may be issued on the petition of a master whose 
 slaves have been taken and detained from him by force. Id. 
 
 83. It is not material in such case that the abduction of the slaves from their 
 master has taken place while the master was in bonS, fide transit over the soil of 
 a state whose laws prohibit the institution of slavery. Even if the slaves thereby 
 become free, it would not justify their forcible removal without authority of law 
 and against their consent and that of their master. Id. 
 
 84. A writ of habeas corpus cannot issue out of a state court to inquire into 
 the cause of a commitment for contempt by a court of the United States, by 
 reason of any want of jurisdiction of the latter court in the original proceedings, 
 in the course of which the commitment was made. Ex parte Passmore William- 
 son., 0. S. iii. 741. • 
 
 HABITUAL DRUNKARD. 
 
 Jurisdiction of New'York Courts over. Davis v. Spencer, N. S. ii. 59. 
 
 HANDWRITING. 
 
 ,1. Where a witness does not know the handwriting and can only testify by 
 comparing signature known to be genuine, held not admissible. O'Connor v. 
 Layton, O. S. ii. 120. 
 
 2. Handwriting, comparison of, on trial upon indictment for perjury. Reg. 
 T. Taylor, O. S. li. 117. 
 
 3. Signed by mark may be good, and if signature not denied, it is held ad- 
 mitted under rule of court. WUloughby v. Moulton, N. S. vii. 2.51. 
 
 4. Indorsement by A. of B. 's name in B.'s presence and by his direction is 
 good. Woodbury v. Woodbury, N. S. vii. 318. 
 
 5. Where date of note is so badly written that judge cannot read it, evidence. 
 i.s admissible to show the true date, and this is for the jury. Fenderson v. Owen, 
 N. S. vii. 443. 
 
 6. Whether testimony that B. had written what purported to be a signature 
 of A, would be competent even in corroboration of other testimony that B. 
 had written the signature in issue, doubted. Haycock v. Greup, N. S. vii. 529. 
 
 HAY. 
 
 Hay in a barn passes under a beqnest of "all the household furniture and other 
 articles of personal property in and about the buildings." Dennett v. EopUnson, 
 N. S. xiii. 359. 
 
486 HEIR— HiaHWAT. 
 
 HEIR. 
 
 1. Words of limitation or inheritance are not essential to create au estate in 
 fee. Hawkins v. Chapman, N. S. xii. 57. 
 
 2. The children of the marriage of slares are entitled to share in an intestate 
 uncle's estate. Jones v. Jones, N. S. xii. 191. 
 
 3. Where a covenant ^gainst encumbrances is broken in the lifetime of the 
 covenantee the administrator and not the heir must sue for the damages. Frink 
 V. Bellis, N. S. X. 671. 
 
 4. Wlicre two persons agreed to make mutual wills, hut by mistake each 
 signed the will of the other, and one died : Held, that he died intestate. Alier's 
 Appeal, N. S. x. 242. 
 
 5. When valid by heir apparent to devise future acquired estates. Jenkins v. 
 Stetson, N. S. v. 182. 
 
 6. Such a bond not void for uncertainty. Id. 
 
 7. Heirs in a devise, word of limitation. Alien v. Henderson, N. S. v. 256. 
 
 8. At collmon law the heir was liable on the covenants of his ancestor in 
 which he was specially bound, just so far, and no farther, as he had assets by 
 descent ; and as rfeal estate alone descended to him, his liability was limited to 
 that. Hall v. Martin ct al., N. S. vi. 757. 
 
 9. Bat when, by statute, the personal estate is made to descend to him, the 
 common-law principle requires it to be treated as assets in his hands, equally 
 with the real estate ; and such heir is liable on the covenants of his ancestor, 
 which could not have been proved while the estate was in the course of adminis- 
 tration to the extent of the personal as well as the real estate which has so 
 descended to him. Id. 
 
 10. Suits against an heir or devisee are not barred by the provisions of the 
 Revised Statutes, ch. 161, sects. 5 and 6, limiting actions against executors or 
 administrators of solvent estates, where no funds are retained for contingent 
 claims, by order of the judge of probate, to three years from the original grant 
 of administration. Id. 
 
 11. But the limitation applies only to suits against the executor or adminis- 
 trator, and therefore the remedy against the heir or devisee upon .claims which 
 could not be proved during the three years, because contingent, is not impaired 
 by these provisions, but remains as in the case of insolvent estates. Id. 
 
 12. JTraud on expectant heir. See Inadequacy of Price. 
 
 13. The word " heirs," construed to mean " children." Parrishv. Ferris, 0. 
 S. iii. ini. 
 
 14. Deed to one and his heirs conveys only a life-estate. Blake v. Hyde, 0. 
 S. iv. 172. 
 
 "HIGHWAY. 
 
 1. Any object in or near a highway which would necessarily obstruct one in 
 its use for the purpose of travelling thereon, or which would be likely to produce 
 that effect, will constitute a defect in the highway. Hewison v. New Haven, N. 
 S vii. 777. 
 
 2. But those objects which have no necessary connection with the road-bed or 
 relation to the public travel thereon, and the danger from which arises from mere 
 casual proximity and not from the use of the road for the purpose of travelling 
 thereon, will not, as a general rule, render the road defective. Id. 
 
 3. Where a flag was suspended by private individuals across a public street 
 with iron weights at the lower corners, and one of the weights became detached 
 and fell upon a traveller on the highway, who was in the exercise of reasonable 
 care, it was held, that the city was not liable for the injury under the duty im- 
 posed upon it by law to keep the street " in good and snfficieut repair." Id. 
 
 4. An allegation of duty without stating the facts which raise the duty, is 
 insufficient ; and if the facts stated do not raise the duty alleged, the allegation 
 of duty is immaterial. Id. 
 
 5. An object which is not an obstruction and with which travellers do not come 
 in collision is not a defect, though it be of a nature to frighten horses. Kings- 
 bur i/ v. Dedham, N S. vii. 61. 
 
 6. Pent road is highway, though not an open one. Walcot v. WJiitcmA, N. 
 S. vii. 574. 
 
 7. A neighborhood road is not a private rond, and the right of eminent domain 
 does not apply. Kissinger v. Hansetman, N. S. 2.. 665. 
 
HIGHWAY. 487 
 
 8. The driver of a team which is on the left-hand side of a street, in violation 
 of tlie law of the road, may, nevertheless, recover damages for an injury sus- 
 tained by liim from a collision with another team, the driver of which, in meet- 
 ing hira, carelessly or recklessly runs against him or his team. Spofford v. 
 Earlmo, ^. S. i. 435. 
 
 9. A town is not liable in damages to one who, while stopping in the highway 
 for the purpose of conversation, leans against a defective railing and is injured 
 by reason of its insufiSciency. Stickney v. City of Salem, N. S. i. .504. 
 
 10. A way constructed and kept in repair by a private corporation upon its 
 own land for its own use and convenience and the use and convenience of tenants 
 occupying its houses upon both sides thereof, opening into a public street, having 
 a sign "Private way" upon the corner, but left open to public travel for 
 more than twenty years without interruption, is not thereby dedicated to the pub- 
 lic ; nor does it become a public way by prescription. Dargin and Wife v. City 
 of Lowell, N. S. i. .505. 
 
 11. Are railroads highways ? — question discussed. 0. S. viiii 138. 
 
 12. Dedication and acceptance by the public create a highway without regard 
 to time of user. Chapman v. Sivan, N. S. xiii. 257. 
 
 13. Keither recognition nor acquiescence can operate by way of estoppel until 
 twenty years have run ; after that the right of the public is perfect. Id. 
 
 14. Though towns are not obliged to keep the whole highway fit for use, the 
 principle cannot apply to streets of a village. Wright v. Saunders, N. S. xiii. 
 257. 
 
 15. No person, whether owner or not, has a right to obstruct a highway. Id. 
 
 16. Obstructions in a highway are public nuisances, and may be abated by 
 any person injured. Id. 
 
 17. Digging post-holes in a street is a nuisance, though in a part not capable 
 of use. Id. 
 
 18. Where the act done is a nuisance, the liability of the party causing it fol- 
 lows of course. Id. 
 
 19. Township authorities have a special interest in highways beyond that of 
 the public at large, and may file a bill in their corporate name to prevent their 
 destruction. Township of Greenwich v. Easton ^ Amboy Railroad Co., N. S. xiii. 
 330. 
 
 20. A railroad company authorized to change the location of a road if tliey 
 deem it necessary, cannot do so because it is to their pecuniary advantage. Id. 
 
 21. A traveller sustaining an injury by reason of a defect in a highway attri- 
 butable to the negligence of the corporation bound to maintain it, is not barred 
 of his right to recover by reason of the fact that on his own part an accident has 
 contributed to the injury, if it is in no way attributable to his own negligence. 
 Baldwin v. Turnpike Co., N. S. xiii. 423. 
 
 22. And it does not affect the case that the accident occurred upon another 
 road over which the. defendants had no control. Id. 
 
 23. It is not necessary that ordinary care should have been exercised by the 
 plaintifl^ at the very time and place of the injury, if such accident has rendered 
 the exercise of such care impracticable. Id. 
 
 24. The plaintiff's horse, driven by his servant in his carriage along a public 
 highway, in the exercise of ordinary care, became frightened by the breaking of 
 the carriage in consequence of a defect for which no negligence was attibutable 
 to the plaintiff, and ran furiously, throwing out the driver ; soon after which he 
 left the highway and passed over private property to and upon a turnpike road, 
 vhere, still running furiously, he fell over the side of a bridge by reason of a 
 defect in the railing and was injured, such defect being attributable to the negli- 
 gence of the turnpike company. Held, that the turnpike company was liable for 
 the injury. Id. 
 
 25. A traveller is not responsible for a secret defect in his carriage or harness, 
 where there has been no want of ordinary care on his part in relation to it. Id. 
 
 26. It is the duty of a person travelling on a public highway to turn to the 
 right on meeting one coming in the opposite direction. Daniels v. Clegg, N. S. 
 xiii. 458. 
 
 27. In case of collision, the one driving on the left would be liable. Id. 
 
 28. In using a highway one has a right to expect ordinary prudence from 
 others, and to rely on it in determining his course. Id, 
 
488 HIGHWAY. 
 
 •29. It lies with the party injured by a collision to prove negligence or mia- 
 condact on the other's part. Daniels v. Clegg, N. S. xiii. 458. 
 
 30. The " travelled part of the road" is thai part which is wrought for travel- 
 ling, and not simply the wheel-track. Id. 
 
 31. Under the laws of 1864 of Wisconsin, it is the duty of each overseer of 
 highways, whenever any portion of the highway in his district is rendered im- 
 passable by snow-drifts, to immediately put it in passable order. McCahe v. 
 
 ' Town of Hammond, N. S. xiii. 653. 
 
 32. A town will not be chargeable with negligence, and liable in an action for 
 injuries received in consequence of the pavements being obstructed by snow- 
 drifts, unless by the exercise of reasonable caie they could have been removed. 
 Id 
 
 33. Whether they could have been removed in time, is a question for a jury to 
 determine. Id. 
 
 34. A town is liable for injuries from the highway being of insufficient width, 
 although the jury find that the injury resulted from an obstruction for which the 
 town was in no way liable. Fulsome v. Town of Concord, N. S. xiii. 714. 
 
 35. A witness who had examined the place of accident and measured the 
 width, can testify that in his opinion the highway was not wide enough for two 
 teams to pass. Id. 
 
 36. A husband may recover damages for injuries to his wife occasioned by 
 defective highway. Hunt v. Tnwn of Winfeld, N. S. xiv. 705. 
 
 37. A town liable for damages for insufficiency of highway, not entitled to 
 have amount paid by insurance company deducted from amount of liability, 
 Harding v. Tow;i of Toivnsliend, N. S. xi. 128. 
 
 . 38. Maintenance of a fence in a highway for forty years gives a right to con- 
 tinue it there as against the public. Cutter v. Cambridge, N. S. iii. 316. 
 
 39. Discretion as to acceptance of streets is exclusively for the corporation. 
 Popev. Union, N. S. vii. 701. 
 
 40. The selectmen of a town may appoint an agent to build or repair roads or 
 bridges. Dow v. Epjping, N. S. viii. 445. 
 
 41. A law providing for the expenditure of certain taxes on two distinct roads 
 and for the construction of a third,' is repugnant to the 20th section of article 4 
 of the constitution of Michigan. People ex rel. Estes v. Dmahy, N. S. x. 664. 
 
 42. A railroad corporation, whose track is in a highway, may unload its cars 
 there if it does not unreasonably interfere with [ravel. Mathews v. Kelseij, N. S. 
 X. 606. 
 
 43. Husban(3 and wife having recovered judgment for injuries received by 
 wife by defect in highway, the town is estopped to deny facts found against it in 
 former action. Lincbeij v. Town of Danville, N. S. xiii. 713. 
 
 44. The obstruction of a highway which cannot be used is not such a griev- 
 ance as equity will redress by injunction. Attorney- General v. Brown, N. S. 
 xiii. 60. 
 
 45. Report of commissioners on altering street. People v. Brooklyn, N. S. 
 vii. 317. 
 
 46 A traveller leaving a highway voluntarily, but from reasonable fear of 
 injury, may recover damages for injury received in so doing. Glidden v. Read- 
 ing, N. S. V. 638. 
 
 47. Such leaving is, in the eyes of the law, a necessity. Id. 
 
 48. Kailroad company responsible for flagman's negligence at a private cross- 
 ing over their track used by the public highway. Sweeney v. Railroad Co., N. S. 
 V, 573. 
 
 49. Declaration in action for damages for injuries describing highway and its 
 defects in general terms, good. Powers v. Woodcock, N. S. v. 639. 
 
 50 A highway is public for travel onlv, and cattle wandering are not within 
 the class to whose protection the railroad company is bound to look in crossing. 
 North Penna. Railroad Co. v. Relman, N. S. v. 49. 
 
 51. Land taken by the public for a highway, and paid for, cannot be donated 
 to former owner without any consideration. People v. Commissioners of High- 
 ways, N. S. viii. 630. 
 
 52. Evidence of similar accidents is not admissible in an action against an 
 overseer of highways for injury resulting from break in the road. Sherman v. 
 Kortright, N. S. viii. 382. 
 
HIGHWAY. 489 
 
 53. The platform of a railroad company at a station is in no sense a public 
 highway. Gillis v. Railroad Co., N. S. viii. 729. 
 
 54. A private person cannot enjoin the obstracting of a highway without 
 showing special injury to himself. McGowan v. Whitesides, N. S. ix. 454. 
 
 55. A private passage way through private market-place is not a public high- 
 way. Cox V. Farmers' Market Co., N. S. ix, 103. 
 
 56. Owner of land laying out street near his mill for operatives, not liable for 
 injury from defect in street. Palmer v. Mamifacturing Co., N. S. vi. 382. 
 
 57. Evidence is inadmissible of condition pf a highway after injury received 
 from its insufficiency. Walker v. Weslfield, N. S. vi. 569. 
 
 58. The test in cases of injury from defects in highwavs. Walker v. Westfield, 
 N. S. vi. 570. 
 
 59. When fact of road being slippery from ice upon it not a defect or want of 
 repair for which town will be liable. Stanton v. Springfield, N. S. vi. 570. 
 
 60. Municipal corporation bound to keep a common way for travel in a safe 
 condition. Burnham v. City, N. S. v. 571. 
 
 61. Person making excavation in highway liable for injuries resulting. Port- 
 land T. Richardson, N. S. vii. 446. 
 
 62. The Ohio river, being a great navigable high-vvay between states, the public 
 Lave all the rights that by law appertain to navigable streams. Bainhridije v. 
 Sherlock, N. S. vii. 720. 
 
 63. The right to use the river as a highway does not imply the right to use 
 the banks for the purpose of landing. Id. 
 
 64. The internal streams of a state above the tide and above boat navigation, 
 are in some sense public highways for the floating of logs. Veazie v. Dioinel, N. 
 S. iii. 715. 
 
 65. The title of riparian owner between high and low water mark is subject 
 to right of navigation of stream as a highway. Wainwright v. McCollough, N. S. 
 X. 71. 
 
 66. The Morris Canal is a public highway subject to tolls and regulations of 
 the company. Bamet v. Johnson, N. S. vi. 569. 
 
 67. Where a highway is laid out to navigable water and there terminates, the 
 terminus may be regarded as presumably intended for a public landing as incident 
 to the highway. Burrows v. Gallop, N. S. vi. 84. 
 
 68. Where, however, a highway, running from place to place, is laid out 
 along the shore of a navigable stream and in immediate contact with it for a con- 
 siderable distance, the reason for the presumption does not exist. Id. 
 
 69. The question in such a case depends on the circumstances, and is one of 
 fact for the jury. Id. 
 
 70. It seems' that the statute (Rev. Stat., tit. 38, sect. 3), which provides that 
 no person shall acquire title by adverse possession to land belonging to a high- 
 way, does not apply to a public landing not part of a highway. Id. 
 
 71. Owner of land adjoining may stop drainage of water from, highway on to 
 his land. Franklin v. FiskjlH. S. vii. 61. 
 
 72. A town is not liable for a bridge being out of repair, which became so 
 suddenly by reason of a freshet. Jaguish v. Town of Ithaca, N. S. xiv. 319. 
 
 73. Notice to any one of the supervisors of a defect in a bridge, is notice to the 
 town. Id. 
 
 74. After notice, if no precautions are taken, the town is chargeable with 
 negligence. Id. 
 
 75. A person must be in the use of a highway for the purpose of travel in 
 order to be entitled to recover damages on account of its insufficiency. Sijkes v. 
 Town of Pawlei, N. S. xi. 59. 
 
 76. The obstruction of a highway is a common nuisance, and the remedy is 
 by indictment, unless an individual has suffered some special damage. Ilouck 
 V. Wachter, N. S. xi. 60. 
 
 77. The mere fact that by an obstruction one individual suffers more than 
 others, will not entitle him to an action. Id. 
 
 78. Plaintiff was entitled to recover for breaking his gig, owing to the insnffi- 
 ciencj' of the road, although a defect in the gig contributed to the accident, 
 where there was no want of ordinary care on his part. Fletcher v. Town of 
 Bamet, TS. S. xi. 197. 
 
 79. In action for obstructing a pent road through defendant's land, the title to 
 
490 HIGHWAY. 
 
 the land is not sufficiently inrolved to oust the jurisdiction of a justice of the 
 peace. Bell v. Prouty, N. S. xi. 197. 
 
 80. The laying out of a highway without application for it, is invalid. State 
 V. Morse, N. S. xi. 331. 
 
 81. There is no presumption that a highway has been laid out agreeably to 
 statute, from the mere use of it by the public for any period less than twenty 
 years. Id. 
 
 82. So long as the highway once established is kept open and fenced out, and 
 the public never excluded, the right of the public will not be 4eemed lost by 
 abandonment. Id. 
 
 83. Where a road is established by use alone, it is not necessarily limited to the 
 travelled track, but extends over the usual width of a highway. Id. 
 
 84. The right of flowing lands, under the Mill-dam Act of Kansas, does not 
 include the right to overflow or obstruct a highway. Venard v. Cross, N. S. xi. 
 334. 
 
 85. There is a duty upon towns and cities to keep their highways in safe con- 
 dition for travelling by foot passengers as well as others. Landok y. Citii of 
 Norwich, N. S. xi. 383. 
 
 86. But this duty, as applied to ice and snow on a sidewalk, is not a duty to 
 keep the sidewalks absolutely free from ice, and the liability of the city for in- 
 juries received by a fall on the ice is to be determined in each case by the par- 
 ticular circumstances existing in that case. Id. 
 
 87. An inaccuracy in describing the terminus of a highway, in a petition to 
 lay out, will not render the laying out of such highway invalid. Flanders v. 
 Colebrook, N. S. xii. 58. 
 
 88. The insufficiency of a highway, which will render a town liable for in- 
 juries resulting therefrom, exists whenever the road is not a reasonably safe and 
 convenient one. Wheeler v. Town of Westport, N. S. xii. 122. 
 
 89. The question whether the highway was insufiicient or out of repair is for 
 the jury. Id. 
 
 90. The general acquaintance of the party injured with the obstructions causing 
 the injury will not necessarily prevent his recovery. Id. 
 
 91. Townships are not liable in their corporate capacity for failure to keep 
 highways in repair, where they are established merely as divisions of counties. 
 Bussell, Adm'r, v. Town of Steuben, N. S. xii. 191. 
 
 92. The owner may recover damages from the county commissioners for in- 
 jury to his carriage in consequence of the condition of the public roads. County 
 Commissioners v. Gibson, N. S. xii. 255. 
 
 93. The right of action against the commissioners is not taken away by the 
 8th section of the Act of 1868 of Maryland. Id. 
 
 94. A county is not liable for damages resulting from the vacation of a road 
 where it is done by the commissioners. Commissioners of Coffey v. Venard, N. 
 S. xii. 533. 
 
 95. Where the owndrs of land abutting on an alley have permitted its use by 
 the public, a dedication will be presumed, and the city will not be restrained from 
 improving it. City of Evansville v. Evans, N. S. xii. 533. 
 
 96. Dedication may be shown by acts in pais. Id. 
 
 97. A traveller who in meeting another turns to the left, and meets with an 
 injury in consequence of an obstruction on the left-hand side of the road, may 
 maintain an action against the town for damages. Gale v. Lisbon, N. S. xii. 
 597. 
 
 98. Whether a cellar along the line of a public street, unprotected by a suitable 
 barrier, constitutes a defect, is a question for the jury. Stack v. Portsmouth, N. 
 S. xii. 662. 
 
 99. A town is liable for damage occasioned by reason of the insufficiency and 
 want of repair of a private way which has been temporarily adopted in the place 
 of the highway rendered impassable by a freshet. Dickinson v. Rockingham, N. 
 S. xii. 731. 
 
 100. Commissioners must lay out the whole, as applied for, or none. Peop'e 
 v. Township Board, ^c, N. S. iii. 765. 
 
 101. Plank-roads are undoubtedly public highways. Craiff v. People, N. S. ix. 
 60. 
 
 102. Where the company forfeit their charter, or abandon it, or suffer the 
 road to so become out of repair as to amount to an abandonment, the right of 
 
HiaHWAY. 491 
 
 way of the company ceases and the road becomes a common highway. Craig v. 
 People, N. S. ix. 60. 
 
 103. The continuous and uninterruped use of land as a highway, during the 
 period limited in sec. 85, ch. 19, E. S. IS.'ia (sec. 80, ch. 16, R. S. 1849), 
 creates a prescriptive right in favor of the public. Hanson el al. v. Taylor, N. 
 S. ix. 194. 
 
 104. A city will be liable to a person injured from ice or snow suffered to re- 
 main on a sidewalk in such an uneven form that one cannot walk over it. Cook 
 V. City of Milwaukee, N. S. ix. 263. 
 
 105. A city is not liable for injuries resulting from a highway that has sud- 
 denly become deficient or out of repair, unless it had notice. Ward v. Town of 
 Jefferson, N. S. ix. 263. 
 
 106. A reservation in a grant, " if ever wanted for a road," means a public 
 highway. Morgan v. Palmer, N. S. ix. 512. 
 
 107. What use of road by public will make a highway by prescription. Con- 
 nary V. Jefferson, N. S. vi. 317. 
 
 108. Damages from insuiEciency of, under New Hampshire statute. Id, 
 
 109. Liability of principal for whom work has been done, constituting an ob- 
 struction or defect in highway. Robbins v. Chicago, N. S. vi. 632. 
 
 110. Liability of city for accident by collision with a rope stretched across. 
 Barber v. City,''S. S. vi. 123. 
 
 111. Liability of town upon indictment for defect in highway. State v. Dover, 
 N. S. vi. 317. 
 
 112. Effect of arrangement between a town and railroad corporation obstruct- 
 ing highway. Jd. 
 
 113. Liability of towns for defects in. Prindle v. Fletcher, N. S. vi. 569. 
 
 1 14. Not liable for injury through some latent defect in. Jd. 
 
 115. What is not an obstruction of, under statute in New Hampshire. Eay 
 V. City, N. S. vi. 250. 
 
 116. Liability of town, where situate. Id. 
 
 117. AVhen new highways not constructed to be discontinued. Marlborough's 
 Petition, N. S. vi. 317. 
 
 118. What report discontinuing should state. Id. 
 
 119. When town's indebtedness proper cause for discontinuance. Id. 
 
 120. Person using a defective way for purposes of play only, cannot sue the 
 town for negligence. Blodgett v. Boston, N. S. iv. 189. 
 
 121. Party has right to presume it is reasonably safe, in its surface, margin, 
 and muniments. Gtidden v. Reading, N. S. v. 638. 
 
 122. Distinction between highway laws of Vermont and Massachusetts. 
 Morse V. Town of Richmond, N. S. viii. 81. 
 
 123. Time will not legalize an encroachment upon a public highway. Tainter 
 T. Morristown, N. S. viii. 121. 
 
 124. Petition for, dismissed where the same had been presented within two 
 years previous, and rejected. Whitcher v. Town of Landaff, N. S. viii. 573. 
 
 125. Objections to form of petition for highway must be taken before refer- 
 ence to county commissioners. Wensworth v. I'own of Farmington, N. S. viii. 
 573. 
 
 126. The legislature of Michigan have free power over the subject of laying 
 out, altering, or discontinuing highways, and this power they may exercise di- 
 rectly or delegate to the board of^supervisors. People ex rel. Bristol v. Supervi- 
 sors, N. S. X. 475. 
 
 127. The right to pass and repass upon a highway is hardly such a vested right 
 that the legislature would be incompetent to take away. Id. 
 
 128. Townships are under no legal obligation to keep in repair bridges and 
 culverts within their limits. Township of Leoni v. Taylor, N. S. x. 537. 
 
 129. The fact that when a resident of a city was injured by reason of a defect- 
 ive way, which the citv was bound to keep in repair, he was driving at a ' faster 
 rate than six miles an'hour," in violation of a city ordinance, is no bar to his 
 right to recover damages for such injury, if such driving did not m any degree 
 contribute to produce it. Baker v. City of Portland, N. S. x. 559. 
 
 130. The fact that the jury failed to agree upon the answer to the question 
 whether the plaintiff was driving at a faster rate than six miles an hour, does not 
 render it reasonably certain that a general verdict for the plaintiff in such actioa 
 is erroneous. Id. 
 
492 HIGHWAY— HOMESTEAD. 
 
 131. The law imposes no duty upon any inhabitant of a town to remove an 
 obstruction from a highway unless he is a town officer. Ham v. Inhabitants of 
 Wales, N. S. X. 603. 
 
 1 32. When a highway is laid out and opened all persons have a right to pass 
 upon it at their own risk, before any work is done upon it or any travelled path 
 made by the town. Dickey v. Maine Telegraph Co., 0. S. viii. 358. 
 
 133. The duty of the town to make a travelled path is distinct from and subse- 
 quent to the laying out and acceptance. Id. 
 
 134. The right of travellers to use any part of the highway is not restricted by 
 the liraitatiou of the liability of the town in case of accident ; but such traveller 
 may use any part of the highway. Id. ' 
 
 135. No private person or corporation has aright to place or cause any ob- 
 struction witlfin the limits of the highway, by which any part would become more 
 dangerous to the traveller than in a state of nature, or as left by the town. The 
 extent of the liability of the town is pot the measure for such private person's 
 liability. Id. 
 
 136. It is sufficient allegation of a defect in a highway to allege that an injury 
 resulted from a stump in the said highway. Ciemer, Adm'r, v. Town of Port- 
 land, N. S. xiv. 324. 
 
 137. Evidence of permanent injury may be given in an action for defect in 
 highway. Id. 
 
 138. It is only where the evidence, is uncontradicted that the question of suffi- 
 ciency of the highway, or of contributory negligence of plaintiff, can be taken 
 from the jury. Id. 
 
 139. Any want of ordinary care will prevent a recovery. Id. 
 
 140. " Slight negligence' ' is not want of ordinary care, but want of extraordi- 
 nary care. M. 
 
 141. A landowner may maintain an action against a town for not keeping a 
 highway in a suitable and proper manner. Oilman v. Laconic, N. S. xiv. 704. 
 
 142. Towns may maintain case for the obstruction of highways they have 
 built. Laconia v. Oilman, N. S. xiv. 704. 
 
 143. In an action for an injury received on a highway, where plaintiff refused 
 to submit to more than one medical examination, plaintiff can show that previ- 
 ous to trial she requested to have physicians to examine her, in order to rebut the 
 unfavorable influence of her refusal. Duryin et ux. v. Town of Danville, N. S. 
 xiv. 756. 
 
 144. No rule of law can be laid down as to what width of track in a certain 
 depth of snow constitutes a highway in good repair. Id, 
 
 145. Refusal to charge that because plaintiff had driven over the road three 
 times a week for three weeks, it was carelessness on his part to upset, and there- 
 fore he could not recover, is not error. Id. 
 
 HIEING. ' 
 
 Contract of — discussion of. 0. S. iii. 651. 
 
 •HISTORY OF SUPREME COURT OF PENNSYLVANIA— suggestions relative 
 to. O. S. iii. 436. 
 
 HOLIDAY. 
 
 1. A Statute of Michigan provides that " February 22(1, among other days, is 
 to be treated for all purposes of holding courts, &c., as Sunday ;" a judgment 
 rendered on that day is tlierefore void, and no bar to a subsequent suit, Hem- 
 mens v. Bentley, N. S. xiv. 705. 
 
 2. Holidays do not seem to be favored in commercial law. Richardson, of the 
 Bfirk Tangier, v. Ooddard, 0. S. viii. 278. 
 
 3. A bill pf exchange, which is not entitled to grace, falling due on a public 
 holiday, is payable on the day following. Commercial Bank v. Varnum, N. S. xi. 
 407. ■ ' ■ 
 
 4. Holidays not favored in commercial law. The subject of holidays dis- 
 cussed historically. Manufacturing Co. v. The Tangier, 0. S. vi. 504. 
 
 HOMESTEAD. 
 
 1. Under the Homestead Act of Missouri, a homestead acquired before the right 
 of action accrued to the state is exempt from execution issued in favor of the 
 state. State of Missouri v. Ahernathy, N. S. xii. 251. 
 
 2. A conditional judgment may be rendered to foreclose a mortgage of land ' 
 
HOMESTEAD. 493 
 
 which does not convey an existing estate of homestead therein. Doyle y. Coburn, 
 N. S. iii. 120. 
 
 3. By the Exemption Law of Missouri in force in 1862, a homestead may be 
 set apart to a debtor out of a leasehold. In re Beckerford, N. S. x. 57. 
 
 4. Whether the claim for homestead and exemption under a state constitution 
 is a debt is for the court of bankruptcy to decide. Woolfolk v. Woolfolk, N. S. 
 xi. 329. 
 
 5. Widow entitled to dower and homestead in equity of redemption, except as 
 against mortgagee, Norris v. Morrison, N. S. v. 700. 
 
 6. Exemption — subject discussed. N, S. i. 641, 705. 
 
 7. The family homestead is the dwelling-place of the family. Barneii v. 
 Leeds, N. S. xii. 256. 
 
 8. A widower having a minor child residing with him is the " head of a 
 family," within the meaning of the' Homestead Act of 1851. Id. 
 
 9. This right is not lost by the child arriving at majority. Id. 
 
 10. A debtor's right of homestead is not lost by his neglect to make applica- 
 tion to the officer having an execution to set it off to him. Id. 
 
 11. An execution maybe extended upon real estate subject to the debtor's 
 right of homestead. Id. 
 
 12. The right of homestead before the same has been set off, is not such an 
 estate in land as will bar a writ of entry by a creditor who has levied on the 
 land. Id. 
 
 13. Where the creditor's levy is subject to the debtor's homestead, before the 
 right is set off, they are tenants in common. Id. 
 
 14. The benefits of the Homestead Law are not confined to an ownership in fee, 
 but attached to the house and lot of which the debtor is tenant for years. Conklin 
 T. Foster, N. S. xii. 256. 
 
 15. The owner of a homestead, though a judgment-debtor, can sell his home- 
 stead and the purchaser will take the title free of any lien. Id. 
 
 16. Under the statutes of Vermont the homestead of a debtor is exempt from 
 debts contracted after the deed is filed in the clerk's office, if the premises are 
 occupied at the time of attachment. Lamb v. Mason, N. S. xii. 403. 
 
 17. Covenants of warranty in a deed of land do not estop the grantor from 
 availing himself of an estate of homestead therein. Doyle v. Coburn, N. S. iii. 
 121. 
 
 18. An estate of homestead is not defeated by the removal of the wife and 
 children from the premises, if the householder continues to reside thereon. Id. 
 
 19. Where the owner of a homestead in Illinois removes with his family 
 to another state, and, on his return to Illinois in about a year, resides in a dif- 
 ferent county, it is such .an abandonment of his homestead as renders it liable to 
 levy and sale under execution. Maker v. McConaga, N. S, ix. 60. 
 
 20. Is exempt from attachment on a debt which accrued after the purchase 
 and record of the deed, but before the housekeeper took possession. IT'es* River 
 Bank v. Gale, N. S. ix. 640. 
 
 21. Is exempt during the absence of the owner while sojourning at another 
 place, if the intention is to return. Id. 
 
 22. The orator alleged in his bill that R., his ward, was the owner of a farm 
 in F., and had a homestead therein, and that he was adjudged a bankrupt, and 
 the defendant appointed his assignee, and that said homestead was decreed to R. 
 by the court of bankruptcy ; that R. absconded, and the orator was appointed 
 his guardian ; that the defendant thereafterwards obtained judgment by default 
 against R., before a justice of the peace, without the service of process, notice, 
 or recognisance for review, and levied his execution upon, and set off, said home- 
 stead ; that it was the duty of the orator, as such guardian, to sell said home- 
 stead for the support of R.'s family, but that said levy and set-off hindered and 
 impeded his selling the same, and constituted a cloud upon the title thereof; and 
 prayed that said cloud be removed. The answer averred that the court of bank- 
 ruptcy adjudged thnt R. had a homestead interest in said farm ; that the dcf^end- 
 ant's claim upon which said judgment was founded was anterior to the acquisition 
 of said homestead, and that said homestead was not exempt from said levy and 
 set-off. The case was heard on bill and answer. Held, that the case was not 
 one for the interposition of a court of equity. Rooney v. Soule, N. S. xiii. 36. 
 
 23. Homestead laws should be liberally construed, with a view of promoting 
 
494 HOMESTEAD. 
 
 the benerolent purpose of securing to a family a home, protected from the cred- 
 itors of the person who is its head. Vogler v. Montgomerj), N. S. xiv. 244. 
 
 24. The homestead exemption is for the benefit of the family, and a sale 
 thereof under execution is void. The exemption need not be claimed, and the 
 possession and use of property, as a homestead, are notice to the officer making 
 a levy that it is held as such. Id. 
 
 25. When the homestead exceeds in amount or value the statutory limitation, 
 it is the duty of the officer holding an execution, before making a levy, to pro- 
 ceed under the provisions of the statute to have the homestead appraised and set 
 apart. Id. 
 
 26. The conveyance and repurchase of a homestead, without a relinquishment 
 of possession, even though made in fraud of creditors, does not constitute an 
 abandonment of the homestead. Id. 
 
 27. The sale of a homestead under execution will be restrained in equity, on 
 the ground that it will cast a cloud over the title of the owner. Id. 
 
 28. M. and wife conveyed their farm to their daughter. M. was subsequently 
 adjudged a bankrupt, and on a bill by his assignee the deed was declared fraud- 
 ulent and void as to creditors. M. and wife then claimed a part of the farm as 
 their homestead. The bankruptcy court, without deciding this claim, ordered 
 the land sold, subject to any legal claim of M., and a purchaser having bought 
 accordingly, brought ejectment for the part claimed and occupied by M. as a 
 homestead. Held, that the purchaser was not entitled to recover. The deed 
 being set aside the title reverted to M., and then passed to his assignee, subject to 
 the exemptions of the Bankrupt Act, as if the deed had never been made. Mc- 
 Farland v. Goodman, N. S. xiv. 697. 
 
 29. The fact that M.'s deed to his daughter reserved the right to occupy the 
 land as a homestead during his life, held to strengthen the foregoing conclusion, 
 
 „ but not to be necessary to it. Id. 
 
 30. The voluntary joining of a wife in a deed which is afterwards set aside as 
 fraudulent against creditors, does not prevent her, on such setting aside, from 
 claiming her dower or homestead in the land. Id. 
 
 31. Probate court has no jurisdiction. Woodward v. Lincoln, N. S. iv. 507. 
 
 32. Estoppel as to homestead right, by abandonment. Brown v. Coon, N. S. 
 iv. 507. 
 
 33. Married woman may be estopped by acts in pais. Id. 
 
 34. Illinois cases on homestead reviewed. Id. 
 
 35. The time at which the status, as head of a family, under the Homestead 
 Act, is to be determined, is when the proceeds of a sale of a homestead are finally 
 disposed of by the court. Cooper v. Cooper, N. S. xiv. 197. 
 
 36. If he has ceased to be at that time, he is entitled to no exemption. Id. 
 
 37. The Homestead Act of Wisconsin must receive a liberal construction. 
 Weisbrod v. Daenicke, N. S. xiv. 705. 
 
 38. Though the owner of a lot bounded by a street takes the fee to the centre 
 of the street, he cannot occupy it, and therefore the street is not to be reckoned 
 in determining the owner's homestead exemption. Id. 
 
 39. The laws of the several states relative to homesteads, and their exemption 
 from sale on execution, fully discussed. N. S. i. 705. 
 
 40. Homestead and exemption laws of the Southern states — subject discussed. 
 N. S. X. 1, 137. 
 
 41. Upon bill filed by a party paying the purchase-money of land, against the 
 purchaser, who went into possession and occupied it as a homestead, promising to 
 execute a mortgage for the repayment, the defendant cannot assert a homestead 
 exemption. Magee v. Magee, N. S. x. 127. 
 
 42. Neither the constitution nor the statute exempts a contemplated future 
 homestead. Coolidge v. Wells, N, S. x. 409. 
 
 43. A deed by a husband, not signed by his wife, of homestead premises, is 
 wholly invalid. Phillips v. Standi, N. S, x. 665. 
 
 44. llight of redemption not subject to execution when value under $500. 
 Tucker v. Kenniston, N. S. vii. 253. 
 
 45. Stay and exemption laws — subject discussed. N. S. xi. 202. 
 
 46. A widow is not entitled to a homestead and personal exemption out of the 
 intestate's property, in addition to her dower. Rust v. Billingslea N. S. xi. 
 332. 
 
HOMICIDE— HOUSEHOLD FURNITURE. 495 
 
 HOMICIDE. 
 
 The deceased charged that the prisoner had " for some time been mad at him," 
 and stated facts to sustain his charge, but which -were denied at the time by the 
 prisoner, is no evidence of their truthfulness, and that such statement should only 
 be regarded by them as part of the res gestce to show under what circumstances 
 the conflict between the parties commenced. Eaile v. The State, 0. S. i. 379. 
 
 HOPS. 
 
 Hops growing and maturing on the vines, which are produced by the annual 
 cultivation of the owner, are personal chattels within the meaning of the Sto.tute 
 of Frauds ; and as such are subject to sale like other personal property. Frank 
 V. Earrington, N. S. i. 768. 
 
 HORSE. 
 
 1. Concealment of latent defect in, at time of sale, will avoid the contract. 
 Cassel V. Herron, O. S. i. 681. 
 .2. Infected with glanders. See Nuisance. 
 
 HORSE RAILROAD. 
 
 1. The rights of the public in a highway are equal, but each person must use it 
 with a just regard to the rights of others. Commonwealth v. Temple, O. S. viii. 
 678. 
 
 2. Every grant carries with it all incidental rights and powers necessary to the 
 full and beneficial enjoyment of the grant. Id. 
 
 3. Hence, where a heavily loaded team was on the public street, in which was 
 laid, and in public use, a horse railroad, one of the wheels of the team being on 
 the railroad track, and the team moving at the usual rate of speed of such teams, 
 but at a less rate of speed than the horse car, and the teamster was asked to re- 
 move his team from the horse railroad, but did not ; it is an obstruction of the pub- 
 lic travel, and unlawful, and a violation of the public right, and indictable. 
 Id. 
 
 HOTEL-KEEPERS. 
 
 1. A notice, whether general or personal, by a hotel-keeper, that all valuable 
 articles must be deposited in the safe of the hotel, and if not so deposited, that he 
 would not be responsible for them if lost, does not apply to articles of personal 
 comfort or convenience, as a watch or clothing. Profilety. Hall, 0. S. viii. 561. 
 
 2. But the hotel -keeper will not be liable for the theft of such articles, if the 
 lodger has acted with negligence, or has not availed himself of ordinary precau- 
 tions for their protection. Thus, where a lodger coming to his room late at 
 night in a state of partial intoxication, omitting to require a key to his room, 
 allowed the door to remain unfastened, and left his watch and similar articles 
 negligently lying on a bureau, it was held, that the hotel-keeper was not respon- 
 sible for their loss. Id. 
 
 3. Semble, that the existence of a state of intoxication on the part of a lodger 
 at an inn, raised a presumption of a want of proper care over his property on his 
 part. Commonwealth T . Temple,'0. S. viii. 678. 
 
 HOUSE. 
 
 When a number of houses are built together on a spot of ground in such a 
 manner as to require the mutual support of each other, the right of mutual support 
 always remains. Richards v. Rose, 0. S. ii. 178. 
 
 HOUSEHOLD FURNITURE. 
 
 1. The term " household furniture," is understood to include everything which 
 may contribute to the use or convenience of the householder, or the ornament of 
 the house, such as plate, linen, china, pictures, &c. M'Micken v. M'Micken 
 University, N. S. ii. 489. 
 
 2. Where a testator by his will bequeathed to A. " all his library and house- 
 hold furniture of every description, and any other personal property not therein- 
 after specifically devised," and by a subsequent clause devised to B. " nil his real 
 estate and personal property, which he may acquire after the date of his will," 
 and again to B. "all the rest and residue of his real and personal estate, not 
 thereinbefore devised," Held, that a portrait of testator, painted after the ranking 
 of the will, and at the time of his death still in possession of the artist in another 
 citv passed to A. under the devise of " household furniture." Id. 
 
 3.' By the law of Ohio " family pictures " are exempt from execution, but, 
 
496 HOUSEHOLD FURNITUKE— HUSBAND AND WIFE. 
 
 per Stoeeb, J., this exemption would not extend to the private gallery of a 
 connoisseur, nbr to costly pictures the subjects of which are not connected with 
 the family in whose possession they are found. M'Micken v. M'Micken Uni- 
 versity, N. S. ii. 4b9. 
 HOWARD'S TJNITED STATES EXPORTS. Criticism upon. 0. S. v. 755. 
 
 HUSBAND AND WIFE. 
 I. Of Maeeiagse. 
 
 1. Alimony is regarded as an allowance to the wife for present support, which 
 She will not be required to take at her husband's house, but is entitled to it else- 
 where as she may elect. Morrison v. Morrison, N. S. x. 198. 
 
 2. A marriage ceremony performed in jest and not intended to he a contract 
 of marriage, will be declared void by a court of chancery. McClurg v. Ferry, 
 N. S. X. 270. 
 
 3. Actions for breach of promise of marriage — subject discussed. N. S. xi. 65. 
 
 4. The Supreme Court at a general terra may not only entertain ail appeal 
 from an order granting alimony, but may order a reference to ascertain a suit- 
 able amount. Galinger v., Galinger, N. S. xi. 197. 
 
 5. A marriage between slaves is made valid by the ratification of the parties 
 after they become free. Jones v. Jones, N. S. xii. 191. 
 
 6. The children of such marriage are entitled to a share in an intestate uncle's 
 estate. Id. 
 
 7. A wife is hound to accompany her husband to such places as he may in 
 good faith determine to remove to for habitation or business, but he has no 
 light as a punishment for bad temper to banish his wife to a lonely place, with- 
 out friends or society, when he does not stay with her. Boyce v. Boyce, N. S. 
 xii. 465. 
 
 8. Such abandonment and separation will entitle her to a decree for support 
 and maintenance. Id. 
 
 9. By law a man is not justified in deserting his wife because she is extrava- 
 gant or lazy, or swears, or is sickly or fretful, or of violent temper ; these are 
 uot crimes, but infirmities, which he undertakes to put up with. Jd. 
 
 10. Marriage, by the law of Missouri, is a civil conti-act, and no special cere- 
 mony is essential to its validity ; and the same law prevails in Illinois and Ten- 
 nessee. Holabirdv. Atlantic Ins. Co., N. S. xii. 566. 
 
 11. Although at the time of the marriage ceremony, the pi'etehded husband 
 had a wife living, so that the marriage was void, yet if after the death of his 
 former wife the parties agreed by mutual present consent, given in good faith, 
 to become husband and wife, and cohabited as such thereafter, then from the 
 date of such consent there was a valid marriage, and the wife would have an in- 
 surable interest in the life of the husband, and could maintain an action upon 
 a policy upon his life. And the jury may find the fact of such subsequent 
 marriage from the evidence of cohabitation, and reputation as man and wife. Id, 
 
 12. In gijanting a divorce the court has the power to decree the custody of the 
 minor children. Bush v. Bush, N. S. xii. 597. 
 
 13. Where there is property it is the duty of the court to make a reasonable 
 provision for the care of the children. Id. 
 
 14. Where the estate is the result of the accumulations of the husband and 
 wife, a fourth is not an unreasonable share for the wife. Id. 
 
 15. In an action of divorce by the husband on the ground of adultery, a letter 
 written by the alleged paramour which has been intercepted and never reached 
 the wife, is not admissible in evidence. Hobby v. Hobby, N. S. xii. 598. 
 
 16. Laws regulating the forms of marriage in the United States ; Subject dis- 
 cussed, N. S. iii. 129. 
 
 17. Conflict of laws affecting marriage and divorce ; subject discussed N. S, 
 iii, 193. 
 
 18. It is a rule of the common law that contracts between husband and 
 wife are void, and will not he enforced. Sweeney et ux. v. Damron, N, S, ix 61. 
 
 19. But where they have been made in good faith and are executed they are 
 valid. Id. ' 
 
 20. Evidence of misrepresentations of chastity necessary to sustain petition to 
 annul marriage. Donman v. Donovan, N. S. v, 187, 
 
 21. Desertion defined, hgersoll. v. Ingersoll, N. S, v. 188. 
 
 22. Voluntary separation not desertion. Id. 
 
HUSBAND AND WIFE. 497 
 
 23. Bill to annul for prior unchastity dismissed, when several children had 
 been born, and no complaint made of wife's conduct after marriage. Leavitt v. 
 LeavUt, N. S. v. 252. 
 
 24. Declarations of members of the family from whom the estate descends he- 
 longed, admissible to prove marriage arid legitimacy. Blackburn v. Cruwfords. 
 N. S. V. 510. » - J , 
 
 25. Baptismal register cannot prove marriage of child's parents. Id. 
 
 26. What evidence of priest and attorney admissible in cases of marriage and 
 legitimacy. Id. 
 
 27. Husband's consent bars his action for crim. con. Bunnell v. Greathead, 
 N. S. vii. 813. 
 
 28. Negligence on his part goes to reduce damages. Id. 
 
 29. Parol promise of husband, during coverture, to pay ante-nuptial debt of 
 wife, is within the Statute of Frauds and cannot be enforced. Cole v, Shurtleff, 
 N. S'. viii. 636. 
 
 30. Liability of husband for ante-nuptial debts of wife terminates on wife's 
 death, unless enforced during coverture. Id. 
 
 31. Ante-nuptial contracts, in consideration of marriage, should be liberally 
 construed to effect the intention. Ardis v. Printup, N. S. ix. 641. 
 
 32. The existence of a marriage having been established, the I'robate Court 
 has no jurisdiction to try its validity. VFiser v. Leclcwood, N. S. ix. 641. 
 
 33. A marriage, void ab initio, on account of fraud or force, may be ratified 
 by injured party. Hampstead v. Ptaistow, N. S. ix. 715. 
 
 34. Voluntary cohabitation, after knowledge of the fraud, cures the defect. Id, 
 
 35. Marriage is a civil contract not requiring any particular form of solemni- 
 zation, and may be proved by cohabitation and reputation. Commonwealth v. 
 Slump, N. S. vii. 61. 
 
 36 To constitute the crime of bigamy, there must be a valid marriage subsist- 
 ing at the time of the second marriage. MiReynolds v. The State, N. S. vii. 736. 
 
 37. A marriage between slaves was, in legal contemplation, absolutely void ; 
 but if the parties, after their manumission, continued to cohabit together as hus- 
 band and wife, it was a legal assent and ratification of the marriage ; and if, 
 while such marriage exists, one of the parties marries another, it is bigamy. Id. 
 
 38. Marriage is a civil contract and nothing more. It may be presumed from 
 cohabitation and reputation. It may be established by proof of the declarations 
 and admissions of the parties. Phijsick's Estate, N. S. iv. 418. 
 
 39. Although the intercourse was originally meretricious, it is not necessary 
 to show when it ceased to be meretricious and became matrimonial. Id, 
 
 40. A counter-presumption may be established by proof of subsequent matri- 
 monial cohabitation and reputation, and declarations of the husband. Id. , 
 
 41. Where conflicting presumptions exist, those in favor of matrimony and 
 innocence must prevail. Id. 
 
 42. Marriage wnere one party is under the age of consent. People v. Slack, 
 N. S. vi. 318. 
 
 43. Second marriage on presumption of death of former husband. Kelhj v. 
 Drew, N. S. vi. 318. 
 
 44. In Ifbel to annul marriage, parties are competent witnesses. Foss v. Foss, 
 N. S.Vi. 380. 
 
 45. The Act of Congress declares that any woman who shall lawfully marry 
 a citizen of the United States, shall be deemed and taken to be a citizen. Kelly 
 v. Omen, N. S. viii. 444. 
 
 46. The terms married, or who shall be married, in the Act do not refer to the 
 time when the ceremonial of marriage was celebrated, but to the state of mar- 
 riage. Id. 
 
 471 The reason that the marriage of a woman revokes her will, made before 
 her marriage, is that she is disabled by coverture to dispose of the property in the 
 will. Morton v. Onion, N. S. xii. 403. 
 
 48. Nor is a husband or wife excluded from testifying for or against one 
 another, unless the testimony would lead to a violation of marital confidence. 
 Clements v. Marston, N. S. xii. 536. 
 
 49. Marriage is a good consideration for a grant of land. Smith v. Allen, JN. 
 
 S. iii. 63. , , 1 J 
 
 50. A widow claiming the light to administer upon the estate ot a deceased 
 
 32 
 
498 HUSBAND AND WIFE. 
 
 person is not competent, under the Acts of 1864 and 1868 of Maryland, to testify 
 as to the factum of her marriage. Redgrave v. Redgrave, N. S. xiii. 259. 
 
 51. Where parties lire together ostensihly as man and wifCj the law will pfe- 
 suine that they have been legally married. Id. 
 
 52. Where proof is offered from which a marriage may be inferred, the pre- 
 sumption is that it was legally contracted according to the law of the country 
 where it occurred. Id. 
 
 53. The validity of a marriage made in a foreign country is recognised in 
 Maryland, though some of the ceremonies required in the latter state are wanting. 
 Id. 
 
 54. The consent of the parties is all that is required for a valid marriage. 
 Richard v. Brelan, N. S. xiii. 39.3, 
 
 55. If the contract be made per verba de futuro, aiid is followed by consumma- 
 tion, it is valid. Id. 
 
 56. Marriage may be proved by reputation, declarations and ciondUct of the 
 parties. Id. 
 
 57. Cohabitation and reputation are necessary to establish a presumption 
 where there is no proof of actual marriajie. Id. 
 
 58. A promise to release in consideration of marriagfe is void by the Statute of 
 Frauds. Brenner v. Brenner, N. S. xiv. 584. 
 
 59. Nor is such judgment satisfied by a second judgment after a subsequent 
 divorce. Id. 
 
 60. A marriage valid where celebrated is valid everywherOj and vice versa. 
 Eutchins v. Kimmel, N. S. xiv. 257. 
 
 61. PrimS, facie, a contract of marriage good at common law will be deemed 
 valid everywhere, and the burden of proving that there are exceptional regula- 
 tions is on the party so claiming. Id. 
 
 62. Proof of a ceremony in a foreign state; followed by cohabitation as man 
 and wife, will be presumed a valid marriage^ Id. 252. 
 
 II. BivOKCE AND Alimony. 
 
 63. Cases where it is allowed discussed in note to Le Batron v. Le Barron, N. 
 S. ii. 220. 
 
 64. The settled practice in the English Courts in divorce suits for Impotence 
 is to require a medical examination. Le Barron v. Le Barron, N. S. ii. 212. 
 
 65. Impotence being made by statute a cause lor nullifying a marriage, the 
 court have power to compel the defendant to submit to a medical examination, 
 though the statute malies no provision for it. Whether iu such case tbe court 
 have power to compel the defendant to answer interrogatories on o&th-^qucere. Id. 
 
 66. It seems that an application of the above principles would authorize the 
 court to order the payment of temporary alimony, though not provided for by 
 
 ' statute. Id, 
 
 67. The court has jurisdiction in equity to require the trustee of the property 
 of a married woman, who has become insane, to pay over to her husband and 
 guardian snch portion of her estate as may be reasonable to aid in her support. 
 Davenport v. Davenport, N. S. iii. 63i 
 
 S8. fraudulent divorce iu another state' no bar — decree o{. court granting 
 diiforg^Tnot conclusive as to citizenship — evidence of the fraud. Shannon v. 
 SlSinmn, ,N. S. ii. 180. 
 
 69. Legislature of state where Wife alone is resident cannot grant divorce that 
 will affect rights of property in another state where husband resides. Todd v. 
 Kerr, N. S. iv. 313. 
 
 70. Quaire, if such an act wbnld not be uflfcflilstitutional. Id. 
 
 71. Wife would not be estopped from denying its validity. Id. 
 
 72. On allegation of third party that libellant for divorce is insane, the court 
 may appoint a guardian ad litem. Denny v. Denny, N. S. iv. 311. 
 
 73. Wife's leaving her husband with his consent and remaining absent, is not 
 desertion. Lea v. Lea, N. S. iv. 311. 
 
 74. Validity and effect of foreign divorces-^— subject discussed. N. S. iii. 193. 
 
 75. In an action by a husband on ground of adultery, the wife cannot set up 
 the adultery of plaintiff by way of counter claim to entitle her to a divorce 
 against him. R, F. H. v. S. H., N. S. iii. 188. • 
 
 76. Proof of adultery alone will not authorize a judgment of divoroS. It must 
 be averred to have been without the consent, connivance, privity or procure- 
 ment of the plaintiff. Myer^ v. Myers, N. S. iii. 504. 
 
HUSBAND AND WIFE. 499 
 
 77. It IS the daty of a referee in such case to find not only the facts as to the 
 adultery, but all other material facts. Mjers V. Mi/ers, N. S. iii. 504. 
 
 78 Opening of decree for alimony for matters occurring at or before the de- 
 cree. Perkins V. Perkins, N. S. iii. 764. ' 
 
 79. Habeas corpus will not be granted to husband to regain custody of the 
 wife, where she is living apart from the husband at her own desire. Reg. v. 
 Leggalt, O. S. v. 57. 
 
 80. Courts cannot divorce parties not married in the state, nor residents. Calef 
 V. Calef, N. S. vii. 443. 
 
 81. Divorce in Michigan for habitual drunkenness does not extend to case 
 where the same cause existed at marriage. Porrett v, Porrett, N. S. vii. 189. 
 
 82. State prison in the Divorce Act of New Hampshire, means the state prison 
 of that state only. Martin v. Martin, N S. vii. 253. 
 
 83 Jurisdiction of Supreme Court of New York is entirely statutory, and does 
 not extend to declare a marriage void because one of the parties was previously di- 
 vorced for a cause that made a second marriage illegal, and went to another state 
 to be married the second time. Penquet V. Phelps, N. S. vii. 124. 
 
 84. When court Will not divorce for unchastity before marriage. Id. 
 
 85. Validity of divorce in Illinois by a citizen thereof when wife absent in 
 another state under agreement of separation, Hood v. Hood, N. S. vi. 60. 
 
 86. Joining religious society, disbelieving in marriage, cause for divorce in 
 New Hampshire. Fats v. Fitts, N. S. vi. 248. 
 
 87. Decree in divorce cannot be made by consent, nor a decree confirming a 
 divorce appealed from. Robinson v. Robinson, N. S. vi. 636. 
 
 88. Alimony has no existence at common law as a separate and independent 
 right, but only as an incident to a proceeding for some other purpose. Bowman 
 V. Worthington, N. S. vi. 621. 
 
 89. There is no inherent jurisdiction In a court of chancery to grant alimony. 
 Id. 
 
 90. A divorced wife, having married again, is not entitled to alimony from her 
 first husband. Id. 
 
 91. The Circuit Courts of Arkansas have jurisdiction of divorce and alimony, 
 but the latter is incidental to the former and cannot be granted in a separate suit 
 where it is the only relief sought. Id. 
 
 92. While in a bill for a divorce on the ground of cruelty, the specific acts on 
 which the charge rests must be set out, the evidence is not necessarily limited to 
 the particular facts charged. Briggs v. Briggs, N. S. x. 409 . 
 
 93. A parol contract to marry, not to be performed for more than a year, is 
 void under the Statute of Frauds. Nichols v. Weaver, N. S x. 410. 
 
 94. An organic defect in the female permanent and incurable, preventing cop- 
 ulation, is a ground of divorced vinculo. .T. G. v. H. G., N. S. x. 476. 
 
 95. Courts of equity sitting in divorce suits must be governed by the principles 
 of ecclesiastical courts in England. Id. 
 
 96. A voluntary deed of separation is no bar to subsequent application for 
 divorce. Id. 
 
 97. Abandonment to authorize divorce a vinculo matrimonii, must be the delib- 
 erate act of the party complained of. Lynch v. Lynch, N. S. x. 476. 
 
 98. Violent and outrageous conduct on the part of the wife will justify a 
 divorce a mensa et thoro. Id. 
 
 99. A decree stating that "the allegations of the libel being satisfactorily 
 proved a divorce a niensa is decreed," is conclusive between the parties as to 
 their matrimonial relations to the date of the decree. Slade v. Slade, N. S. x. 
 604, 
 
 100. The parties are entitled to exceptions to rulings of a judge at nisi prius, 
 admitting testimony, though the libel is tried without a jury. Id. 
 
 101. A decree for divorce should not direct the payment by the defendant of 
 arrears of alimony ; the plaintiff must enforce payment in the usual way. Id. 
 
 102. Where the defendant's property amounted to $12,550 over and above his 
 debts, alimony to the amount of |600 per annum was suflScient. Id. 
 
 1 03. The Court of Chancery in New York had no jurisdiction to grant divorces 
 independent of the statutes. Grain v. Cavana, N. S. xi. 663. 
 
 104. The court by the Revised Statutes is not authorized to grant a sum in 
 gross on separation a mensa et thoro by way of allowance to the wife, and in lieu 
 of dower. Id. 
 
500 HUSBAND AND WIPE. 
 
 105. Such provision in the decree being void, the wife's claim on her deceased 
 husband's estate is unaffected by it. Crain v Cavana, N. S. xi. 663. 
 
 106. Divorce a wncu/o in New Hampshire bars dower. Gleasonv, Emerson, 
 ■ N. S. xi. 722. 
 
 107. Divorce on the ground of adultery will not be decreed upon the uncor- 
 roborated te.stimony of a particeps criminis, herself unchaste and untruthful. 
 aare v. aare, N. S. viii. 122. 
 
 108. Father not responsible for education of his child, born after decree of 
 divorce. Harris v. Harris, N. S. viii. 573. 
 
 109. Indiana divorces ; subject discussed. N. S. ix. 721. 
 
 110. The statute of Illinois requires desertion for two years to obtain a divorce, 
 and the courts cannot prescribe a shorter period. Thomas v. Thomas, N. S. ix. 
 775. 
 
 111. Evidence that a wife was absent from home for several days at a time, 
 and her reputation for chastity was bad, is insufficient to establish a charge of 
 adultery, id. 
 
 112. It is not a ground for a divorce within the statute that a party has com- 
 mitted a larceny, when no conviction has been had. Id. ^ 
 
 113. A woman who had deserted her husband more than twelve years before 
 his death, without reasonable cause, Held, to have no right to retain $300 out 
 of his estate, under the Act of 1851, though no actual divorce. Tozer v. Tozer, 
 O. S. ii. 510. 
 
 114. The courts of Wisconsin have jurisdiction to grant a divorce for acts of 
 cruelty committed in another state, at the suit of one who has resided in the state 
 one year. Shafer v. Bushnell, N. S. ix. 123. 
 
 1 15. A decree for divorce should not direct the payment of arrears of alimony 
 previously ordered by the court. Hoffman v. Hoffman, N. S. ix. 261. 
 
 116. An application for divorce on the ground of desertion must make out 
 with reasonable certainty every element of the statutory cause,, or no decree can 
 be granted. Angler vj Angier, N. S. ix. 335. 
 
 1 17. The statute of Pennsylvania requires moreover, that the application shall 
 he made " in sincerity and truth for the causes mentioned," and if the court be 
 of opinion, on the evidence, that the libellant has not shown good faith in the 
 application, and that the acts complained of were the natural result of his own 
 management and scheming to that end, a decree will be refused. Id. 
 
 118. Evidence of libellant's acts and conduct towards his wife is therefore ad- 
 missible to show his motives in the application. Id. 
 
 119. This case is to be distinguished from Eshbach v. E.shbach, H Harris 343, 
 and others which rule that if a wife deserts the habitation of her husband, she is 
 only justified by such acts as would entitle her to a divorce. Here the husband 
 broke up the home, and never in good faith offered her another. Id. 
 
 120. A covenant by a husband for the maintenance of the wife, contained in 
 a deed of separation, will be enforced in equity. Walker v. Walker's Executors, 
 N. S. ix. 448. 
 
 121. A court of equity has jurisdiction to decree alimony to a wife on peti- 
 tion, though no divorce is asked. Galland v. Galland, N, S. ix. 463. 
 
 122. A statute authorizing the courts of a state to grant alimony in suits 
 for divorce does not thereby prohibit the granting of alimony in other cases. 
 Id. 
 
 123. Upon granting a divorce, whether on account of the fault of the wife or 
 the husband, the court has power to award to her possession of the homestead. 
 Brandon v. Brandon, N. S. xiv. 449. 
 
 124. When the record shows that a divorce was granted on account of* the 
 habitual drunkenness of the wife, this court cannot hold that it was error to 
 give to her the care and custody of two infant children, in the absence of any 
 evidence showing that the husband was a suitable person to have such care and 
 custody. Id. 
 
 125. A judgment for alimony is not released by the parties remarrying. 
 Srenner v. Brenner, N. S. xiv. 584. 
 
 126. A marriage will not be annulled for impotence. Anonymous, N. S. xiii. 
 56. 
 
 127. The Court of Chancery of New Jersey will annul a contract of marriage 
 outside of its statutory jurisdiction only where the contract is void. Id. 
 
 128. Where husband covenantB in a deed of separation to pay an annuity to 
 
HUSBAND AND WIFE. 501 
 
 his wife " so long as they shall live separate," a divoreo for the subsequent adul- 
 tery of the wife will not release him from the payment. Charlesworth v. Holt, 
 N. S. xiii. 590. 
 
 129. A wife who has wilfully and utterly deserted her husband for a period of 
 five years, without fault on his part during that time, cannot maintain a libel for 
 divorce against him, on account of "his subsequent adultery. But she may main- 
 tain her libel if, before the expiration of the five years, he has taken another 
 woman for his wife. Hall v. HalJ, N. S. i. 690. 
 
 130. In Pennsylvania a surviving husband is entitled to curtesy of land of 
 his deceased wife, though she had no actual possession, but only a potential seisin 
 during her life. If she had possession by a tenant for years, or only the right to 
 present possession, it is sufficient. Buchanan v. Duncan, N, S. i. 497. 
 
 1.31. A widow is not dowable of land in which her husband has only a vested 
 remainder expectant upon an estate for life. Durando v. Durando, N. S. i. 59. 
 
 132. And it makes no difference whether the estate comes by devise or inher- 
 itance. The word "purchase," as used in Coke Litt. 31, in reference to this 
 point, is limited to a purchase by deed. Id. 
 
 133. Real property acquired in Wisconsin by a husband, is not subject to a 
 nuptial conft-act between the husband and wife, wh4 at the time of marriage were 
 domiciled in Prussia. Fuss v. Fuss, N. S. ix. 263. 
 
 134. Widow is entitled to a share of her husband's estate, although he was 
 insane when he married. Wiser v. Lockwood's Estate, N. S. ix. 641. 
 
 135. A married woman who signs a deed with her husband, and acknowledges 
 it before the proper officer, relinquishes her dower in the property, though her 
 name is not mentioned in the body of the deed. Johnson v. Montgomertj, N. S. i.x. 
 715. 
 
 136. A wife may recover money on her contract to release her dower in cer- 
 tain land. McAlioy t. Johns, N. S. xii. 403j 
 
 1 37. Tenancy by curtesy no longer exists in Michigan. Tong v. Marvin, N. 
 S.'Vi. 318. 
 
 138. Mortgage by grantee immediately on conveyance will bar dower. King 
 T. Stetson, N. S. vi. 185. 
 
 139. Widow does not lose her right of homestead by second marriage. MiJes 
 V. Miles, N. S. vi. 250. 
 
 140. A widow is entitled to dower in lands bargained by her husband to an- 
 other during his life, the purchase-money, however, not being paid until his death, 
 tbe title remaining in him. Slaughter v, Culpepper, IS. S. xi. 331. 
 
 141. Dower once extinguished cannot be revived. Frei/ v. Boylan, N. S. xi. 
 774. 
 
 142. The erection of buildings by the husband on the leasehold lands of his 
 wife will not take away her right of survivorship. Riley's Adm'r v. Riley, N. 
 S. viii. 186. 
 
 143. The legal effect of wife's joining in deed of conveyance of land of hus- 
 band, is to release her dower. Moloney v. Iloran, N. S. viii. 573. 
 
 144. A wife taking conveyance of land, in which she was entitled to dower, 
 merges it. Id. 
 
 145. Married Woman's Act of New Jersey has abolished tenancy by curtesy 
 initiate, but not curtesy consummate. Porch v. Fries, N. S. vii. 699. 
 
 146. Tenant by curtesy may not qommit waste by cutting timber, and timber 
 severed will retain its character as realty, and heirs may have account for what 
 is taken away and injunction on removal of remainder. Id. 
 
 147. The Illinois statute giving a married woman exclusive control of her. 
 property does not give to her the power of conveying her real estate without 
 the consent of her husband manifested by joining in the deed. Cole v. Van 
 Riper, N. S. vii. 478. 
 
 148. Although the statute abolishes the life-estate of the husband in his wife's 
 lands, during their joint lives, it does not abolish the tenancy by the curtesy 
 after the wife's death. Id.- 
 
 149. Liability of dowress for taxes assessed during the husband's life— subject 
 discussed. N. S. vii. 385. 
 
 150. An ante-nuptial contract between husband and wife, in respect to the dis- 
 position and enjoyment of their respecfive estates, is one in which both parties 
 should exhibit the utmost good faith ; and any designed and material conceal- 
 
502 HUSBAND AND WIFE. 
 
 ment ought to avoid the contract at the will of the injured party. Kline r. Kline, 
 N. S. vii. 713. 
 
 151. Marriage settlement conveying property to which wife might become en- 
 titled does not pass after-acquired property, and equity will not enforce it as an 
 agreement to convey unless such be the plain intent of the parties. Steinberger 
 V. Potter, N. S. vii. 762. 
 
 152. The effect which shall be given to a decree of divorce obtained in Indiana, 
 in New York, depends on the jurisdiction of the court making the decree.- Hoff- 
 man v. Hoffman, N. S. ix. 262. 
 
 153. A decree of divorce which has been acquiesced in for a certain number 
 of years and the plaintiff again married, will not be disturbed for purpose of giv- 
 ing alimony. Nichols v. Nichols, N. S. xiv. 322. 
 
 154. Where a husband sues his wife for a divorce, and fails, it is proper for 
 the court to allow to the wife her necessary expenses incurred while defending 
 against the suit. Gardner v. Gerdner, 0. S. i. 122. 
 
 155. It seems that the reasonable cause which would justify a wife in abandon- 
 ing her husband, is such as would entitle her to a divorce. Cattison v. Cattison, 
 0. S. ii. 184. 
 
 156. To establish a ease of desertion sufficient to authorize a divorce, it should 
 apppear that the wife left her husband of her own accord, without his consent and 
 against his will, or that she obstinately refused to return without just cause on 
 the request of her husband. Jennings v. Jennings, N. S. i. 697. 
 
 III. CUKTKSV AND DOWEK. 
 
 157. Under the proviso to the second section of the Bankrupt Act of 1841, 
 dower is not barred by a decree in bankruptcy. Semble, that it would be other- 
 wise in Pennsylvania but for this proviso. Worcester v. Clark, 0. S. ii. 185. 
 
 158. Dower not barred by the wife leaving her husband and living with an 
 adulterer, if no divorce is decreed therefor. Lakin v. Lahin, N. S. i. 57. 
 
 159. The birth of living children, after the conveyance by ft married woman 
 of land held by her to her separate use, will entitle her husband to curtesy 
 therein. Comer v. Chamberlain, N. S. iii. 317. 
 
 160. Where H. received a deed and at the same time reconveyed the land in 
 mortgage to his grantor, the wife of H. was not entitled to dower as against such 
 mortgage. Hinds v. Ballon, N. S. iii. 126. 
 
 161. Widow dowable of lands to which husband had an inchoate title, and to 
 extent of dower she is representative of the claimants. Thomas v. Hesse, U. S. 
 iii. 632. 
 
 162. If husband sell without wife's relinquishment of dower, she is dowable 
 according to the law in force at the time of sale. Id. 
 
 163. If alienees hold such land in several parcels, dower will be assigned in 
 each separately. Id. 
 
 164. Where wife refuses to release after agreement by the husband to con- 
 vey free of dower, compensation in damages maybe decreed against him. Park 
 V. Johnson, N, S. ii. 180. 
 
 165. In lainds in possession of husband under executory contract for purchase 
 of them. Lobdell v. Hayes, N. S. ii. 63. 
 
 166. Husband has no curtesy in his wife's land in remainder. Shores v. 
 Carley, N. S. iv. 313. 
 
 167. Widow of tenant iij common, whose interest was convevcd to his co-tenant, 
 may have a writ of dower. Blossom v. Blossom, N. S. iv. 505. 
 
 168. A widow's dower before assignment is a mere right in action. Bavner 
 V. Lee, N. S. X. 602. " 
 
 169. Assignment of dower under mistake of fact: subject discussed. N. S. 
 X. 611. 
 
 170. Dower of widow of tenant in common. Blossom v. Blossom. N. S. v 
 186. • 
 
 171. Widow of owner of equity of redemption entitled to dower in surplus 
 upon sale. Matthews v. Duryee, N. S. v. 570. 
 
 172. Not barred of her action by omission to appear or assert her claim in 
 foreclosure suit. Id. 
 
 173. Widow entitled to dower and homestead in equity of redemption, except 
 as against mortgagee. Norris v. Morrison, N. S. v. 700. 
 
 174. Liability to contribution Id. 
 
 175. Ante-nuptial agreement to bar dower. Suitings v. Sullings, N. S. v. 187. 
 
HUSBAND AND WIFE. 503 
 
 176. When ante-nuptial contract ty woman to relinquish share in husband'3 
 estate will be enforced in equity. Tarbell v. Tarbell, N. S. v. 510. 
 
 177. Without waiver and notice in writing, the Probate Court has no power 
 to decree wife homestead and dower. French v. Crosby, N. S. xiii. 257. 
 
 178. Prior to Act of 1863 of Maine, a ramot feme covert could not bar her 
 right of dower by joining in execution of her husband's deed. Dela v. Stan- 
 wood, N. S. xiii. 125. 
 
 1 79. That act could not defeat existing right of widow to dower. Id. 
 
 180. Where wife joins in deed with her husband to bar dower, she will not 
 be barred as against one holding by attachment against husband prior to said 
 deed. French v. Crosbi/, N. S. xiii. 257. 
 
 181. A widow's claim for dower is not barred by a deed, in which she joined, 
 which is subsequently set aside as fraudulent against creditors. Richardson v. 
 
 W'yman, N. S. xiv. 194. 
 
 182. Wife may require a consideration moving solely to herself for her release 
 of dower. Ballt/ v. Litten, Adm'r, JJ. S. xiv. 395. 
 
 183. Her release will be good if consideration moves to her husband. Id, 
 
 184. Where husband's consent to his wife's deed is not in proper form, he can 
 recover the land as tenant by the curtesy after her death. Houck et al. v. Hitter, 
 N. S. xiv. 584. 
 
 185. In divorce a former adjudication need not be specially pleaded; it maybe 
 given in evidence at tlie trial. Blain v. Blain, N. S. xiii. 57. 
 
 186. It is an inflexible rule that before the widow can be entitled to dower the 
 husband must have been seised of an estate of inheritance in the land during 
 coverture. Durando v. Durando, 0. S. ix. 630. 
 
 187. A naked power of sale in executors works no conversion of the land into 
 personalty, and until the sale the title is in the heirs and the husband of one of 
 them is entitled to custody. Eomaine v. Hendrickson, N. S. xiii. 328. 
 
 1 88. Such tenant by the curtesy and the son of the deceased daughter are proper 
 parties to a bill against executors to set asjde a sale on the ground of frand. Id. 
 
 189. The voluntary joining of a wife in a deed which is afterwards set aside 
 as fraudulent does not prevent her from claiming her dower, McFarland v. 
 Goodman, N, S. xiii. 697. 
 
 . 190. Where a will assumes to give to one of its beneficiaries property of 
 
 another person for whom provision is likewise made in the will, the latter must 
 elect which he will take, except in case of widow's right of dower, which is pro- 
 tected by statutory provision. Huston v. Cone, N. S. xiii. 655. 
 
 191. A tenant in action of dower is not estopped from showing that the seisin 
 of the husband was not such as to give his wife the right of dower. Foster v. 
 Divinel, N. S. i. 604. 
 
 192. Demandant in dower competent to prove her husband's death. Fli/nn v. 
 Coffee, N. S. vi. 318. 
 
 193. A sale by an assignee under the Bankrupt Act will not pass the real 
 estate to the vendee discharged of the dower of the bankrupt's wife. In re Angier, 
 N. S. X. 190. 
 
 194. The husband will be entitled to the protection of the court where the 
 wife's temper endangers him. While v. White, 0. S. viii. 637. 
 
 IV. Sepakate Estate op Wife and op Estate by Entireties. 
 
 195. An estate made to husband and wife during coverture does not constitute 
 joint tenancy or tenancy in common. McCurdy v. Canning, N. S. x. 347. 
 
 196. Husband can convey deed to his wife directly. Amperse v. Burdeno, N. 
 S. V. 27.1. 
 
 197. A trust created before the Act of 1848 to protect a married woman's pro- 
 perty from her husband, to determine in case she survives him, is determined by 
 a divorce a vinculo. Koenig v. Smith, N. S. vii. 717. 
 
 198. Husband of infant cannot sell growing timber on her land. Porch v. 
 Fries, N. S. vii. 699. 
 
 199. Covenant by husband to stand seised to the use of himself during life and 
 then to the use of his wife during her life, vests the estate in her after his death. 
 Leavitt v. Leavitt, 253. 
 
 200. The administrator of the husband is not entitled to dispossess the wife 
 by showing a decree of insolvency. The covenant to stand seised may be good 
 notwithstanding, if made in good faith and the husband was not then insolvent. 
 
 Id. 
 
 201. Estate by entireties is not destroyed by the Acts of New York allowing 
 
504 HUSBAND AND WIFE. 
 
 married women to hold their property separate. F. ^ M. Bank t. Gmgory, 
 N. S. vii. 121. 
 
 202. Where such estate is voluntarily converted into money it helongs to the 
 husband and becomes liable to his creditors. F. Sj- M. Bank y. Gregory, H. S. 
 vii. 121. 
 
 203. Mortgage of wife, in New York, to purchase stock in trade. James, Ex., 
 V. Taylor, N. S. v. 126. 
 
 204. Powers of wife to carry on trade in New York under Acts of 1848 and 
 1849. M. 
 
 205. Married woman actiniring property must clearly show that purchase- 
 money was her own. Hoffman v. Toner, N. S. v. 187. 
 
 203. Goods purchased on credit not hers under Act of 1848. Id. 
 
 207. Personal property purchased with wife's own means in her own name, for 
 her own use, becomes her separate property. Spaulding v. Day, N. S. v 31 8. 
 
 208. Under statutes giving power to a mamed woman to enjoy, contract, sell, 
 transfer, convey, devise or bequeath her property, in the same manner and 
 with like effect as if she were unmarried, a husband can convey real estate to his 
 wife by deed directly, without the intervention of a trustee. Amperse v. Burdeno, 
 N. S. V. 275. 
 
 209. Equity will set aside a transfer of wife's property to husband for a nomi- 
 nal consideration. Stiles v. Stiles, N. S. v. 252. 
 
 210. Earnings of wife belong to husband, but are not attachable by his cred- 
 itors. Hoyt V. White, N. S. v. 700. 
 
 211. Where A. makes a parol gift of land to B. and wife as long as they live, 
 and the latter move on the land with the assistance of A., pay part of the taxes, 
 make valuable improvements and continue to reside on it for six years, the gift, 
 will be treated in equity as in the nature of a contract executed, and A. will not 
 be allowed to recover possession of the land during the life of B. or his wife. 
 Freeman v. Freeman, N. S. viii. 29. 
 
 212. If B. should abandon the land and either directly or by neglecting to ap- 
 pear and defend, connive with A. to eject the wife, the latter will nevertheless 
 be entitled to a judgment in her favor for her own life. . Id. 
 
 213. A husband's appropriation of money belonging to his wife's separate 
 estate, does not make them debtor and creditor, even when done with the wife's 
 consent. Kuhn v. Stansjield, N. S. viii. 312. 
 
 214. A conveyance to husband and wife and their heirs prior to 1850, consti- 
 tuted in Kentucky, as at common law, an estate by entireties, which neither hiis- 
 
 ' band nor wife could sever or make liable for debts as against the other. Elliott 
 V. Nichols, N. S. viii. 433. 
 
 215. The Statute of 1850, abolishing the right of survivorship and turning the 
 estate into a tenancy in common, is not retrospective. Id. 
 
 216. The husband and wife cannot enter into a mortgage of her statutory 
 separate estate for the purpose of subjecting it to sale for "-the payment of the 
 husband's debts ; and if they do, a court of chancery will not permit the mort- 
 gage to be enforced by sale of the wife's separate estate, if she objects to it. 
 Bibb V. Pope, N. S. viii. 490. 
 
 217. Wife must prove her right as creditor of her husband with clearness. 
 House V. Gilger, N. S. vi. 635. 
 
 218. When question of "his means or hers," may be taken from the jury. Id. 
 
 219. Power of married woman to bind her separate estate by promise to pay 
 for nursing her father. Manchester v. Sahler, N. S. vi, 509. 
 
 220. Not liable in such case under statute to maintain her father. Id. 
 
 221. Statutes 1848 and 1849 (New York) did not remove legal incapacity of 
 married woman to contract debts. Id. 
 
 222. Cannot charge her estate with a debt not connected with it and not for 
 her own benefit. Id. 
 
 223. Husband's marital rights in New Hampshire not divested by Act of 1860, 
 until August of that year. Atherton v.McQuester, N. S. vi. 250. 
 
 224. Eights of husband and wife and their representatives in such cases. Id. 
 
 225. Authority of agent to submit to arbitration damage to land of his prin- 
 cipal's wife. Smith T. Sweeney, N, S. vi. 379. 
 
 226. How far wife can enforce and is bound by the award. Id. 
 
 227. ])ebts contracted by the wife on the faith of her separate estate are not, 
 in a legal sense, an encumbrance upon such separate estate, and are, therefore, 
 not embraced in the restriction of the statute of Indiana, which provides that the 
 
HUSBAND AND WIPE. 505 
 
 ■wife shall hare no power to encumber or convey lands constituting her separate 
 estate, "except by deed in which her husband shall join." Kantrowilz v. Pra- 
 ther, N. S. vi. 602. 
 
 228. Administrator of a feme covert may sue the husband of his intestate at 
 law. Albee r. Cole, N. S. vi. 716 
 
 229. What is conversion of wife's property by husband. Id. 
 
 230. Where a wife has an equitable interest in land conveyed to her husband 
 by reason of her having paid part of the purchase-money, it will be protected 
 against her 'husband's subsequent creditors. Lormore v. Campbell, N. S. xi. 59. 
 
 231. The mere delivery of a horse to the husband for the wife, without any 
 act or declaration by him, is not a waiver of his marital rights, and such horse 
 is liable to be seized for the de))t of the husband, although paid for by the wife. 
 Davis V. Zimmerman, N. S. xi. 128. 
 
 232. Where a married woman purchases a lot and builds a house with money 
 obtained from her husband, and afterward exchanges the house and lot for per- 
 sonal property, such property will be deemed her separate estate. Elder v. Cor- 
 dray, N. S xi. 129. 
 
 233. A parol agreement, by the husband, made before marriage, that pro- 
 perty belonging to his wife when sole should remain hers, prevents her title 
 being divested by the marriage, and if she is subsequently divorced she may 
 maintain trover against a purchaser from the husband. Child v. Pearl, K. S. 
 xi 129. 
 
 234. The Statute of Frauds is no shield for the defendant because the title 
 was always in the plaintiff. Id. 
 
 235 In New York a married woman may carry on any trade or business or 
 perform any labor, and the earnings and profits belong to her exclusively and 
 are her separate estate. Foster v. Conger, N. S. xi. 396. 
 
 236 An assignment of a policy of insurance, on the life of a husband, ob- 
 tained for the sole and separate use of the wife, if made by the husband and 
 •wife for the benefit of his creditors, is valid. Emenck v. Coahley, N. S. xi. 
 461. 
 
 237 The forbearance of the creditors is a valid consideration. Id. 
 
 238 A married woman while residing with her husband may charge her 
 separate estate for necessaries used in the family. Tillman v. Sliackleton, N. S. 
 xi. 461. 
 
 239. Neither the common law nor the statutes of Michigan authorize a 
 married woman, prior to 1845, to take a deed of real estate and give a mort- 
 gage for the purchase-money, and both were void. Savage v. Holyoke, N. S. 
 xi. 461. 
 
 240. In Kansas a married woman may contract, sell, convey and be sued, in 
 reference to her separate estate, as freely as any ottier person. Knaggs v. Mastin, 
 N. S. xi. 774. 
 
 241. Where a married woman, jointly with her husband, conveys her separate 
 estate in trust, to secure a debt of her husband, remainder to the husband and 
 wife or their legal representatives — Held, that the remainder belongs to the 
 wife alone, who furnished the money for the original loan. Kinner v. Walsh, 
 N. S. ix. 195. 
 
 242. The debts of a married woman in Massachusetts are not a lien upon her 
 separate estate, unless made so by the decree of a court of equity. Armstrong 
 V. Ross, N. S. ix 323. 
 
 243 The fruits of the wife's labor and skill, where her husband co-operates, 
 are not her separate property. Bank v. Sprague, N. S. ix. 323. 
 
 244. A husband is chargeable as trustee with the income of his wife's sepa- 
 rate property. Walker v. Walker's Ex'rs, N. S. ix. 448. 
 
 245. Widow not estopped from asserting her claim for her separate moneys, 
 against her husband's estate, by accepting provision under his will. Id. 
 
 246. The statutes of Ohio, in relation to the property of married women, 
 have in effect put such property, during coverture, in the position of property 
 limited by a deed of trust to the sole and separate use of the wife, and where 
 there is no express trust, the husband will be treated as a trustee. W/ester.man 
 V. Weslerman, N. S. ix. 690. 
 
 247. The husband's curtesy is not entirely and in all casSs destroyed, but 
 exists contingent upon circumstances prescribed by the statutes. Id. 
 
 248. Therefore, the common-law rule that a secret conveyance of her realty 
 
506 HUSBAND AND WIFE. 
 
 by a woman under contemplation of marriage, is fraudulent and void against the 
 husband, is no^ entirely destroyed by the statutes. Westerman v. Westerman, N. 
 S. ix. 690. 
 
 249. A woman just before marriage conveyed land to her children by a former 
 marriage. The land was not fully paid for by her at the time of the conveyance, 
 and her grantor subsequently obtained judgment against her and her husband for 
 the balance of the purchase-money, which the husband was compelled to pay. 
 Held, (1.) That the husband having paid the judgment out of his own money, was 
 entitled to be subrogated to the vendor's lien against the land, and could enforce 
 the repayment of his money by sale of the land. (2.) Thatthe conveyance to the 
 children was fraudulent as to the husband, and must be set aside. Id. 
 
 250. A bequest of personal property to a married woman, her executors and 
 administrators, for her separate use, as if she were a, feme sole, gives her an ab- 
 solute interest therein, which on her death passes to her administrator, her hus- 
 band being sola distributee if she die without issue. Farie's Appeal, 0. S. ii. 
 510. 
 
 251. A covenant by husband and wife in a marriage settlement, to settle after- 
 acquired property of the wife, does not extend to property to which wife becomes 
 entitled after husband's death. Re Edwards, N. S. xiii. 590. 
 
 252. A married woman may charge her separate real estate with the payment 
 of a debt contracted by herself and husband, by means of a joint promissory 
 note. Hall §• Hume v. Er.cleston, N. S. xiii. 195. 
 
 253. Equitywill enforce sucha contract against the separate estate of the wife. 
 Id. 
 
 254. A deed from a married woman of her separate estate directly to her hus- 
 band, is a nullity. Preston, Trustee, v. Freyer, N. S. xiii. 258. 
 
 255. Where property which is sold under a decree in equity is represented as 
 of indisputable title, and it turns out to be defective, the court will require the 
 trustee to refund the purchase-money even after ratiiication. Id. 
 
 256. Husband may convey a reasonable amount of property to his wife, and 
 it will be valid against future creditors. Brookbank v, Kennard, N. S xiii. 
 258. 
 
 257. Such conveyance may be without intervention of trustees. Id. 
 
 258. That the conveyance was not recorded for a year will not render it void. 
 Id. 
 
 259. Land conveyed to a husband by his wife's guardian in satisfaction of a 
 decree in her favor on settlement of guardianship account, will be decreed to be 
 her separate property. Fry et al. \. Hammer, N. S. xiii. 459. 
 
 260. A note and mortgage of the land to secure its payment, executed by the 
 wife and husband for money to pay off an outstanding mortgage, imposed no 
 liability on her or the land. Id. 
 
 261. Notes given to trustee of wife for debt due to husband who is insolvent, 
 are in prejudice of the rights of creditors and are void as against them Far- 
 mers' Bank V. Brooke, Trustee, N. S. xiv. 395. 
 
 262. In the absence of proof to the contrary, a purchaser of the notes from the 
 trustee will, however, be presumed to be bonS, fide. fd. 
 
 263. When a husband, in answer to a bill by his wife to establish a trust in 
 her favor, admits that he signed, sealed and acknowledged the deed, his denial 
 of delivery amounts to nothing. Adams v. Adams, N. S. xiv. 524. 
 
 264. The fact that the trustee, in a deed by husband and wife conveying pro- 
 perty in trust for the wife, was not cognisant of it, does not affect the transaction. 
 Id. 
 
 265. The title to property purchased by a wife, with money bequeathed by her 
 husband's father, will be in her and not in her husband. Smith v. Hardy, N. S. 
 xiv. 645. 
 
 266. If the mortgagee of personal property, after the mortgage is due, accepts, 
 at a fair valuation, other property in lieu of part of the mortgaged property used 
 or sold by the mortgagor, and then turns it all over to the wife of the mortgagor, 
 her title will be good-against her husband's (the mortgagor) creditors. Id. 
 
 . 267. A chattel mortgage given to delay, hinder or defraud creditors is void, 
 but if there is a bon4 fide indebtedness to the mortgagee, the mortgage is good. 
 Id. 
 
 268. The separate estate of the wife under the statute of Illinois is a legal es- 
 tate. And where such estate comes to the hands of the hutbaud and is used by 
 
HUSBAND AND WIFE. 507 
 
 him with her consent, the relation of principal and agent is created, and she 
 may compel him by bill to account to her for such estate. Patten v. Patten, N. 
 S. xiv. 733. 
 
 269. If the husband claim the income of such estate as a gift from the wife, 
 the burden is upon him to establish liis claim by proof. Id. 
 
 270. A married woman to whom possession of land is delivered under a parol 
 gift, and who occupies the land uninterruptedly, adversely and exclusively as her 
 own for fifteen years, thereby acquires a complete title in herself, subject to an 
 estate by curtesy in her husband, where the husband, although living with her, 
 claims no independent, exclusive occupation in himself. Clarke et ux. v. Gilbert, 
 N. S. xiii. 19. 
 
 271. Where a debt is contracted partly for necessaries and partly by wife for 
 goods for resale, the separate estate of the wife is not discharged from liability. 
 Parker v. Dillard, N. S. xiii. 58. 
 
 272. Husband may permit wife to have the savings of her industry as her sep- 
 arate property. Rivers v. Charlton, N. S. xiii. 58. 
 
 273. Under the Spanish jurisprudence in Texas the interests of the husband 
 and wife in the community property are severed on the death of either. Thomp- 
 son T. Cragg, 0. S. viii. 497. 
 
 274. A wife selling a mortgage to her husband must be held as a competent 
 witness to show that mortgage was free from usury. Sage v. Wright, N. S. xiii. 
 720. 
 
 275. Married woman tenant in common of property occupied by her and her 
 husband, husband not bound to account. Wilcox v. Wilcox, N. S. vii. 127. 
 
 276. After husband's death wife will be entitled to a conveyance of property, 
 conveyed by herself and husband in trust for her separate use. Tucker's Appeal, 
 S. S. xiv. "264. 
 
 277. A married woman's surety is entitled to notice of non-payment of the 
 debt by principal, and notice to husband is not sufficient, though if intended for 
 the wife it becomes a question of service only. Shimer v. Jones, N. S. iv. 308. 
 
 278. Money borrowed by a husband from his wife and secured by a note will 
 be regarded after her death as a claim against him. Huston v. Cone, N. S. xiii, 
 655. 
 
 279. Husband selling wife's horse and she neglecting to object until after 
 payment for the same, she is estopped. Dann v. Cudnei/, N. S. iv. 573. 
 
 280. Married woman's will under a deed of trust of personalty only made in 
 another state, but in form required in Pennsylvania, passes ground-rents subse- 
 quently acquired. Alexander v. Paxon, N. S. iv. 191. 
 
 281 . Indorsement of husband to wife and by her to third person gives the latter 
 a valid title. Stawson v. Loring, N. S. ii. 698. 
 
 282. A married woman cannot forma partnership with her husband, and is 
 - not liable upon a promissory note given by a firm of which, by partnership 
 
 articles, she and her husband have agreed to be members. Lord v. Parker, N. 
 S. i. 50.5. 
 
 283. If a married woman has for her own benefit invested her sole and separ- 
 ate money in a firm of which her husband is a member, an assignment by her to 
 a, third person of her share, interest, contribution and investment in the firm is a 
 snfBcient consideration to support an express promise to pay an agreed price 
 therefor ; and such promise, though not in writing, may be enforced, if she, in 
 consideration thereof, relinquished all claim against the firm. Lord v. Davison, 
 N. S. i. 505. 
 
 284. A married woman gave a mortgage to a creditor of her husband, of "all 
 the estate, right, title and interest," to which she would be entitled in her father's 
 estate on his death, and also covenanted with her husband " to stand seised of 
 said estate, right, title and interest, to the use of the mortgagee and his heirs, 
 and to make further assurances." The mortgage was given for the sole purpose 
 of securing a prior debt of the husband's, and no consideration was received by 
 her, or given by the mortgagee. After the death of the father, the mortgagee 
 claimed her share of the real estate. Held, that he was not a purchaser for value, 
 and that the mortgage did not eiiable him to hold against her the share of her 
 father's lands which descended to her at his death. . Bayler v. Commonwealth, for 
 use, ^c, N. S. i. 443. 
 
 285. A husband, acting as the agent of his wife in making a settlement of 
 
508 HUSBAND AND WIFE. 
 
 demand in her favor, took a deed of certain lands in satisfaction, which was 
 made to him instead of to her. After her death, the heir-at law (who was also 
 the administrator) of the wife sought in equity an account with respect to these 
 lands, and the husband defended, claiming them as a gift from the wife. Held, 
 that the burden of proof was upon the husband to establish the gift, and that the 
 fact that the deed was made to him, in the absence of proof that it was so made 
 by the wife's direction, consent or knowledge, was no evidence of the gift, and 
 authorized no presumption against the wife's interest. Wales v. Newbold, N. S. 
 i. 184. 
 
 286. The obligation of a married woman, except where her separate estate is 
 involved, is void. Hansell v. De Witt, N. S. xii. 58. 
 
 287. A married woman is not liable upon a promissory note signed by her as 
 surety for another. Id. 
 
 288. The Act of 1849 of New Tork, providing that any married woman may 
 convey rea| estate in the same manner as if~she were unmarried, repeals the act 
 requiring their examination apart from their husbands. Richardson v. Pulver, 
 N. S. xii. 123. , 
 
 289. A married woman having a power of appointment over lands of which 
 the legal title is in a trustee, may execute an instrument desii^iug the trustee to 
 convey to her, and acknowledge it apart from her husband. Id. 
 
 290. The validity of the execution is to be tested by the form of acknowledg- 
 ment requisite at the time. Jd. 
 
 291. A married woman may purchase property from her husband, and if a 
 subsequent creditor of her husband seizes it, she may replevy. Faddis v. Wool- 
 omes, N, S. xii. 123. 
 
 292. An agreement to convey, by one married woman to another, is inopera- 
 tive and void. Tmnard v. Littell, N. S. xii. 323. 
 
 293. The husband of a married woman is a necessary party to a bill by her 
 next friend, for her separate estate. Id. 
 
 294. A conveyance by a husband for the use of his wife on the execution of 
 articles of separation will not be set aside on account of the subsequent adultery 
 of the wife. Dixen v. Dixen, N. S. xii. 46.5. 
 
 29.5. A married woman is not liable upon any executory contract', unless in 
 - connection with her separate estate. Kidd v. Conioai/, N. S. xii. 663. 
 
 296. Though a bond accompanying a mortgage is void, it does not follow that 
 the mortgage is also. Id. 
 
 297. A statement in a mortgage by a married woman that the mortgaged 
 premises are occupied by her as a dwelling, is a distinct allegation that they are 
 her separate estate. Id. 
 
 298. Where a married woman gives a mortgage on real estate the court must 
 ' assume that it is her separate estate; Id. 
 
 299. A conveyance by husband to wife in order to avoid being compelled to 
 support his pauper mother is good between the parties, and vests the property in 
 the wife. Roberts v. Lund, N. S. xii. 731. 
 
 300. The possession by a husband of his wife's real estate is to be taken as her 
 possession, so' as not to put a purchaser upon inquiry as to the rights of a third 
 person of whom the husband, to cover his own fraud, took a lease unknown to 
 the purchaser. -Fassett v. Smith, N. S. i. 180. 
 
 301. Equitable rights of wife to her separate estate in derogation of the legal 
 rights of the husband, who is domiciled abroad. Schwabacher v. Becker, 0. S. 
 lii. 314. 
 
 302. Mortgage of wife's separate estate. Hudson v. Carnachael, 0. S. iii. 318. 
 
 303. Husband liable for necessaries furnished to wife (she being separated 
 from him without her fault), while confined in a lunatic asylum, although -the 
 credit was given to the person, who as agent of plaintiff made the contract and 
 paid the expenses which were afterwards repaid to him by his principal. Wrau 
 T. Cox, 0. S. iii. 56. 
 
 304. Husband liable for medical attendance, although the physician was called 
 in against his objections. Ooihran v. Lee, O. S. iii. .56. 
 
 305. A confession of judgment, withoiit action, by a married woman is void, 
 although the consideration he money borrowed for and applied to the improve- 
 ment of her separate estate. Watkins v, Abrahams, N. S. i. 439. 
 
 306 . Where the real estate of a wife was levied on by a creditor of her husband's. 
 
HUSBAND AND WIFE. 509 
 
 and Was about to be sold, it wps error in the court to dismiss a bill filed by her 
 for a preliminary injunction to restrain the execution-creditor from selling it. 
 Hunter's Appeal,'N. S. i. 628. 
 
 307. Liabilities voluntarily incurred by a married woman will be charged upon 
 her separate estate, but she cannot by her contract make herself personally liable. 
 Pentz T. Swionson and Wife, N. S. i. 763. 
 
 308. A married woman possessed of a separate estate, executing a note with 
 her husband, will be presumed to intend to bind her estate. Kimm v. WeiffeH 
 and Wife, N. S. x. 128. 
 
 309. Husband cannot recover the value of government bonds depos-ited with 
 a bailee and subsequently obtained from him by the wife, on a forged order, the 
 husband being responsible for the fraud of his wife. Rowing v. Manley, N. S. 
 X. 128. 
 
 310. The will of a feme covert, professing to dispose of her property, must be 
 admitted to probate in the same manner as that of any other person. Schull v. 
 Murray, N. S. x. 128. 
 
 311. By the laws of Maryland a married woman is competent to dispose, by a 
 will made without her husband's consent, of property settled to her sole and 
 separate use, if the instrument is silent as to the mode of disposition. Id, 
 
 312. Where a wife is possessed of a term of years at the time of marriage, a 
 subsequent purchase of the reversion by the husband will not extinguish the term 
 by merger, but it will survive to the wife on het husband's death. Clark v. 
 Tennison, N. S. x. 415. 
 
 313. A married woman having a separate estate may purchase a boat and 
 carry on the business of boating, and employ her husband as master. Whedon 
 V. Champlin, N. S. x. 475. 
 
 314. Creditors have no lien on the husband's labor, nor can they force him to 
 labor for them. Td. 
 
 315. If he has acquired property by labor and enhanced his wife's separate 
 estate, they may follow it. t Id. 
 
 316. In all such cases the question is one of fraud. Id. 
 
 317. On wife's death intestate and without issue the husband is entitled to her 
 personal property, limited by will to her sole and separate use. Cooney, Admin- 
 istrator, T. Woodburn, N. S. x. 476. 
 
 318. The presumption is that a husband receives his wife's money for her 
 use, and the burden is on him to show the contrary. Young's Estate, N. S. x. 
 538. 
 
 319. The silence of the wife at the time he receives it is not sufficient to raise 
 a presumption of a gift to him. Id. 
 
 320. No particular form is necessary to mnke nn estate for sole and separate 
 use of the wife, but the words used must clearly express the intention to exclude 
 the husband's curtesy. Nightingale et al. v. Hidden et al., N S. ii. 443. 
 
 321. Where land is purchased by wife's means and improved by her separate 
 funds, her separate title will prevail against a subsequent judgment-creditor of 
 the husband, although the deed was by mistake made to the husband. Damon v. 
 Hall and Wife, N. S. ii. 506. 
 
 322. Rights of wife as creditor of husband under law of Trance, where the 
 marriage was contracted, continue and attach to his property where he abandons 
 her and dies domiciled in the United States. Bonati v. Welsch, N, S. ii 250, 
 
 .323. Liability of wife's property in husband's use, for his debts — assignment 
 of goods by wife. Sherman v. Elder et al., N. S. ii. 57. 
 
 324. Wife not precluded by ante-nuptial agreement from claiming a distri- 
 butive share of personal estate of husband. Sullings v. Richmond et al., N. S. ii. 
 
 697. 
 
 325. When co-defendant's wife may he a witness in New York— parol promise 
 of husband to repay money borrowed of wife, and post-nuptial settlement in con- 
 sideration thereof. Scheffner v. Eevier et at., N. S. ii. 61. 
 
 326. A married woman can charge the whole or a portion of her separate es- 
 tate as a surety for her husband, the intention to charge such separate estate 
 being declared in the contract. Barnett v. Lichlenstein, N. S. iii. 61. 
 
 327. Wife cannot cl^arge her separate estate by parol promise to pay a debt 
 of the husband, where her estate is to receive no benefit. Ledlie v. Vrooman, N. 
 S. iii. 504. 
 
510 HUSBAND AND WIFE. 
 
 328. Application of separate estate to maintenance of insane wife, Davenport 
 V. Davenport, N. S. iii..63. 
 
 329. Married woman is liable on a note given by her to pay for land for her 
 sfcparate estate. Chapman v. Foster^ N. S, iii. 317. 
 
 330. Policy of inssrance to wife cannot be transferred so as to divest her in- 
 terest. Eadie v. Slimmon, N. S. iii. 568. 
 
 331. Acknowledgment, it seems, is not necessary in New York to conveyance 
 of wife's separate estate. Wiles v. Peck, N. S. iii. 568. 
 
 332. Trust funds of wife lent to husband on his note and by agreement no in- 
 terest collected, the Statute of Limitations does not apply. Vpham v. Wyman, 
 N. S. iii. 699. 
 
 333. Settlement by husband on wife — when it will be valid — presumptions and 
 evidence in relation to. Townsendv. Maynard, N. S. iii. 572. 
 
 3.34. Husband's declarations not admissible to prove property in wife. Parvin 
 V. Capewell) N. S. iii. 575. 
 
 335. Possession of money by wife no evidence of her separate right to it. 
 Id. 
 
 336. Mere gift to wife by husband not a settlement to her separate use. Id. 
 
 337. Rent of real estate bought by married woman cannot be attached by 
 creditor of the husband. Goffr. Nuttall et al., N. S. iii. 309. 
 
 338. In trespass for taking property of a firm, of which the wife was a member, 
 for husband's debt, she must show that her interest was her separate estate. 
 Duress V. Homeffer, IS. S. iii. 509. 
 
 339. Where the husband occupies the relation of trustee to his wife and takes 
 possession of her property in that caj)acity, such possession will not bar her right 
 if she survives him. Gochermur'' s Estate, 0. S. iii. 486. ^ 
 
 340. Keduotion by a husband, of his wife's personal property into his posses- 
 sion, so as to change the ownership, is a question of intention, to be inquired of 
 upon all the circumstances. Id. 
 
 341. Conversion is not reduction, but only evidence of it. Id. 
 
 342. Clear proof that the husband received his wife's money as a loan, or a 
 disclaimer of intention to make it his own property, will preserve her right of 
 survivorship. Id. 
 
 343. Alleged admissions to thart effect by the husband must be scanned with 
 great vigilance, to prevent the consequences of misapprehension. Id. 
 
 344. Interest accruing during the husband's lifetime cannot be allowed in the 
 distribution of his estate, upon a sum of money belonging to his wife that was 
 in his hands, and which he might at any time have reduced into his own posses- 
 sion, for then there was nothing to indicate that he was willing to pay interest 
 for it. Id. 
 
 845. A. being largely indebted to his wife for moneys received out of her sepa- 
 rate estate, gave a mortgage on his own real estate for the balance then due to 
 a trustee in trust for her. Afterwards A. and wife conveyed the mortgagd pre- 
 mises for a certain sum, subject to the mortgage in express terms to C, who soon 
 after reconveyed to the wife on the same terms. The wife then joined with her 
 husband in a mortgage to H., to secure him for money loaned to the husband. 
 At the same time H. procured an assignment of the wife's mortgage from her 
 trustee as collateral, and also a release from B. of the priority of his lien. The 
 real estate was then sold under the trustee's mortgage, and the proceeds were 
 ruled into court, and claimed by the wife on the ground that the mortgage in 
 trust for her still subsisted. Held, that the conveyance of the mortgaged pre- 
 mises to the wife did not extinguish the mortgage held in trust for her, because 
 her trustee was not a party to it ; the intent to keep the mortgage alive appeared 
 upon the face of the conveyance ; it was for her interest in order to prevent sub- 
 sequent liens from coming in before her, and because all parties acted upon the 
 idea, and treated the mortgage as if it was subsisting. Hatz's Appeal, N. S. i. 
 629. 
 
 346. Discussion of the wife's claim to a separate settlement out of her own 
 property, and rights of the children therein. N. S. iv. 9. 
 
 347. A married woman contracting a debt for her own benefit may make it 
 an express charge on her'^separate estate, and her mortgage for that purpose will 
 be supported in equity. Frary v. Booth, N. S. iv. 142. 
 
 348. A husband may by his acts, as well as by his express agreement, divest 
 
HUSBAND AND WIFE. 5U 
 
 himself of his marital rights in his wife's property, so as to make it her separate 
 estate. Frary v. Booth, N. S. iv. 142. 
 
 349. A wife left her husband in 1847. In 1852 property was devised to her, 
 which she occupied and controlled without any interference of her husband until 
 the present time. In 1857 she made a mortgage upon her estate to secure pay- 
 ment of a debt for necessaries for the support of herself and children, and in 
 1858 she obtained a divorce and made a second mortgage on the same property. 
 BeJd, that though, as between her and the husband, the devise to her lacked the 
 affirmative words necessary to constitute a separate estate in the strict meaning 
 of the terms, yet under the circumstances it was to be considered her separate 
 estate, as between her and the first mortgagee. Id. 
 
 350. Such first mortgage may also be supported in equity on the principle that 
 where a married woman trades as a feme sole, or obtains credit on her separate 
 estate, a court of equity will hold the proceeds of the business or the estate sub- 
 ject to the claims of her creditors. Mi 
 
 351. Or on the principle that the estate of a married woman living apart from, 
 her husband is liable for her maintenance. Id. 
 
 352. The second mortgage having been made with notice of the circumstances, 
 has no equity to come in before the first. Id. 
 
 353. The statutes of Vermont, in regard to the conveyance of married women's 
 estates, do not alTect the jurisdiction of the courts of equity over the subject of 
 (separate estates. Id. 
 
 354. Nature of wife's separate estate and her power to charge it, discussed. 
 Note to Frarg v. Booth, N. S. iv. 153. 
 
 355. Property devised to wife, her heirs and assigns, free from control of her 
 husband, may be disposed of by her absolutely in fee, by will. Hall v. Wate^ - 
 house, N. S. iv. 754. 
 
 356. Power of wife over separate estate. English cases discussed. Id. note. 
 
 357. Bill in equity lies to compel payment, out of separate estate, of a bond 
 given by her for land for her separate use. And the creditor is not confined to 
 the collateral security on the bond, Rogers v. Ward, N. S. iv. 313. 
 
 358. Bill need not set out any specific estate. Id. 
 
 359. Wife's separate estate is liable for services of attorneys in suits instituted 
 npon accounts growing out of her separate business, conducted by her husband 
 as agent, and for the purpose of benefiting such estate. Owen v. Cawley, N. S. 
 iv. 123. 
 
 360. Conveyance hy husband to wife as her separate property, if carried into 
 effect, is good in equity. Cardell v. Ryder et al., TS. S. iv. 56. 
 
 361. Judgment given by husband to wife to secure her separate estate is valid. 
 Williams's Appeal, N. S. iv. 440. 
 
 362. What was necessary to charge the separate estate in New York before the 
 Act of 1860. White v. Story, N. S. iv. 440. 
 
 363. The wife had no title in her own right to her earnings in New York prior 
 to the Act of 1860, and that act does not divest the husband's title to his wile's 
 earnings by services performed previously to the act. Woodbeck v. Hewens, N. 
 S. iv. 121. 
 
 364. Where land is held in common by a married woman and others, and they 
 all join in a partition, and her share is conveyed to her and her husband, the law 
 considers the share as still hers, a divided share being substituted for an undi- 
 Tided one. Sfehman v. Huber, 0. S. i. 634. 
 
 365. The Married Woman Act of 848 was not intended to take away the 
 vested rights of the husband, and does not allow him to give them away in fraud 
 of his creditors, even to his wife. Id. 
 
 366. A married woman bought land, received the deed and gave bond and 
 mortgage, all in her own name alone, for the balance of the purchase-money, to 
 be paid at the death of two annuitants, to whom the interest was to be paid an- 
 nually during life. By condition in the bond, the principal could " be collected 
 as if fully due," on default for six months in paying the interest. Held, that 
 npon such default, the principal could be collected by suit upon the mortgage. 
 Glass V. Warwick, Tfi. S.i. 565. .„ v , ,„,„ 
 
 367. An assignment by husband of a legacy to the wife, before 1848, passes 
 the right to the assignee, whether the same was vested or not, McBurney a 
 Appeal, 0. S. ii. 185. 
 
5,12 HUSBAND AND WIFE. 
 
 368. The Act of 1848 relative to married women does not affect the relations 
 of persons then married and the estates vested in them under the law, as it pre- 
 viously stood. Therefore a woman having an estate in land when she married, 
 before that act, is not entitled to have a trustee appointed by the court, as of her 
 separate estate. McBumey's Appeal, O. S. ii. 185. 
 
 369. Reversionary interest in personalty of wife whose husband is domiciled 
 abroad. Guepratte v. Young, 0. S. iii. 315. 
 
 370. A gift by deed of personal property to a feme covert " during her natural 
 life, and then to whomsoever she may by deed or will appoint," restrains her 
 
 power of disposition to these two modes, for where property is given to a married ' 
 woman, to her separate use, and a mode of disposition is prescribed in the instru- 
 ment creating the estate, the settled rule of law in Tennessee is that the feme 
 covert can only dispose of the property in the mode indicated. Ware et al. v. 
 Sharp, 0. 5. i. 379. 
 
 371. The title to lands vested in a married woman by an unrecorded deed can- 
 not be divested by her parol consent that such deed may be cancelled, and a con- 
 veyance made by her grantor to her husband. Wilson v. Hill, N. S. i. 762. 
 
 372. A trust for the separate use of a married person ceases on her becoming 
 sole, and shQ is then entitled to demand and receive from the trustee the corpus 
 of the estate. Harrison v. Brolasl-y, 0. S. i. 439. 
 
 373. Notwithstanding the Act of 1 848, the husband is still entitled to the labor 
 of his wife, and the benefit of her industry and economy. Her earnings and 
 savings, not out of her separate estate, do not become her separate property, but 
 belong to her husband as before the act. Raybold v. Raybold, 0. S. i. 439. 
 
 374. Wife's separate property may be conveyed by joint deed of herself and 
 husband. Jenkins v. McConico, 0. S. iv, 250. 
 
 375. Wife's bond or note, its effect on her separate personal estate. If a married 
 woman gives her written oliligation for the payment of money, it will be presumed 
 that she thereby intended to charge her separate personal estate, and therefore, 
 if her creditor file a bill in equity to obtain payment out of that estate, it is not 
 necessary that he should either aver or prove her intention to charge it. Ozley 
 T. Ikelheimer, 0. S. iv. 250. 
 
 V. Op the Contracts, Powers and Liabilities of Married Women. 
 
 376. Where goods are sold to a married woman upon her individual credit, 
 although the vendors are ignorant of the fact of coverture, there is no liability ex 
 contractu on the part of the husband to pay for them. Goulding v. Davidson, N. 
 S. iii. 34. 
 
 377. But if the credit to the wife was obtained by fraudulent representations 
 on her part that she was unmarried, the vendor may have an action against the 
 husband and wife jointly, either to recover the goods or damages for their con- 
 version ; or semble, an action on the case for damages for the fraud. Id. 
 
 378. For tort of the wife committed in the presence or by order of the husband, 
 the latter alone is liable, and after his death no action survives against the wife 
 for such tort. Id. 
 
 379. But if the tort was not in the husband's presence or by his order,it is the 
 wrong of the wife, although the husband is jointly liable with her, and in such 
 case an action will survive against the wife alone after the death of the husband. 
 Id. 
 
 380. Therefore, where goods had been sold to a married woman on her repre- 
 sentations that she was sole, and she had given notes in payment, her promise 
 made after the death of her husband to pay the notes was founded on a good and 
 sufficient consideration. Id. 
 
 381. Whether married woman is liable civilly when she fraudlently represents 
 herself as sole. Note to Id., 42. 
 
 382. Whether in such case she is bound by subsequent promise, after husband's 
 death. Id. 
 
 383. Purchase-money is a lien on the land sold, where the purchaser has given 
 no separate security, and this applies to purchases by married women. Chilton 
 v. Braiden's Adm., N. S. iii. 53. 
 
 384. A married woman may belong to a trading partnership, if her husband 
 is not a member thereof. Plumer v. Lord, N. S. iii. 63. 
 
 385 Coercion of wife by threat of prosecuting husband. Eadie v. Slimmon, 
 N. S. iii. 568. 
 
HUSBAND AND WIFE. 513 
 
 386. The presumption of the legitimacy of the child of a mnvriefl woman cnn 
 only be rebutted by evidence which proves beyond all reasonable doubt that her 
 husband could not have been the father. Phillips v, Alle.n, N. S. i. 317. 
 
 387. A married woman commitied to an insane asylum by her husband is not 
 entitled to be discharged on habeas corpus, if it appears that the asylum is well 
 managed, and she is subjected to no unnecessary or unusual restraint or improper 
 treatment, and her remaining there will tend to promote her recovery. And it 
 is immaterial that, previously to her commitment, she had consulted counsel in 
 reference to a divorce, and has since filed a libel for divorce. Dennif v, Tyler, 
 N. S. i. 507. 
 
 38S. When contract by mawiod woman, separated from her husband, to give 
 up control of her children, is valid. Dumain v. Girijnne, N. S. v. 505. 
 
 389. A note and mortgage given by a married woman for a loan to purchase 
 land, imposes no personal liability on her, nor on the land. Rilei/ ct al. v. 
 Pierce, N. S. xiii. 392. 
 
 390. Incompetency of, as witnesses — subject discussed. 0. S. viii. 201. 
 
 391. To join in conveyance of homestead — subject discussed ; and cases cited. 
 N. S. i. 705. 
 
 392. As to effect of a bequest of personal property during life or widowhood ; 
 see Dole v. Johnson, N. S. i. 503. 
 
 393. Conveyance by wife without joining husband, under Act of Massachusetts 
 1845, u. 208. JeiL-ett'v. Davis, N. S. v. 318. 
 
 394. Kote of husband to third party before marriage not extinguished by pur- 
 chase by wife after marriage with her own funds. Russ v. Georije, N. S. v. 700. 
 
 395. Transfer by wife of such note with husband's assent — proof of such assent. 
 Id. 
 
 396. Bond of married woman is void, even though the consideration was one 
 that would support an action. Keiper v. IJelfricker, N. S. ii. 504. 
 
 397. Bond is absolutely void in Pennsylvania, and so is any judgment on it. 
 Slelnman v. Ewtnrj, N. S. ii. 635. 
 
 398. Cannot make agreement in writing for purchase of real estate on credit, 
 and her possession is possession of the husband. She Is therefore improperly 
 joined in action for recovery of the premises. Rose v. Bell and Wife, N. S. ii. 
 560. 
 
 399. Cannot in Michigan engage in general business so as to make the pro- 
 ceeds her own. Glooer v. AlcoU, N. S. ii. 696, 
 
 400. Power of married woman to make a will. Rtjder v. Hulse, N. S. ii. 250. 
 
 401. A married woman who has no separate estate cannot, as ag.iinst her hus- 
 band's creditors, acquire a title to property sold as his at sheriff's sale, by 
 repurchase from the purchaser and giving a mortgage on the property for the 
 whole purchase-money. Baringer v. Stiver, N. S. iv. 559. 
 
 402. Judgment confessed by wife is void, but she may agree to revive one 
 already legally entered. Bruner's Appeal, N. S. iv. 254. 
 
 403. Wife may act as agent of husband, and may be appointed verbally or 
 otherwise. Goodwin v. Keilji, N. S. iv. 187. 
 
 404. Wife claiming benefits of New York Acts of 1848 and 1849 must .show 
 that she was a resident. Saraye v. O'XicI, N. S. iv. 380. 
 
 405. Those acts did not take away the power of husband and wife to contract 
 with each other. Id. 
 
 406. New York Acts of 1848 and 1849 construed. Improvement in value of 
 wife's land. Goss v. Cahill, N. S. iv. 254. 
 
 407. Delivery by the wife of her husband's goods to an adulterer, he knowing 
 the goods were taken without her husband's authority, is sufficient to support an 
 indictment for larceny. Reg. v. Fealharstone, 0. S. ii. 695. 
 
 408. Rights and powers of married women under statutes, trust deeds, &e., 
 article upon. 0. S. iii. 385. 
 
 409. Wife acting as agent of husband. See Gates v. Brewer, 0. S. ii. 283 ; 
 and see Maeeied Woman's Act. 
 
 410. A married woman has no legal right to confess a judgmen_t, but such 
 judgment if confessed is not void, but only voidable, Roraback v. Stebbins, N. 
 
 S. VI 696. , . ^, 
 
 411. If therefore, she allows a judgment confessed by her to a bona fide cred- 
 itor to stand,' and her property to be sold under an execution, the purchaser ao- 
 
 33 
 
514 HUSBAND AND WIFE. 
 
 onires a good title npainst all persons, except other creditors having a lien on 
 tlie property. Roraback v. Stebbins, N. S. vi. 696. 
 
 412. Married woman can only contract for sale of her land or convey it in 
 precise statutory mode. Glidden v. Strupler, N. S. vi. 635 
 
 413. Contracts of femes covert are nullities. Id. 
 
 414. Her power to convey in Pennsylvaitia, in law and equity. Id. 
 41.5. How only contract of married woman can be ratified. 7c?. 
 
 416. When she will not he estopped. Id. 
 
 417. When married woman, doing business as hoarding-housekeeper, may 
 bind herself for furniture. Tillman v. Shackleton, N. S. vi, 6.36. 
 
 418. The deed or mortgage of a married ^vftmari for lands, in Ma.esachusetts, 
 though duly acknowledged, if made without her husband, is void. Armstrong v. 
 Eoss, N. S. ix. 323. 
 
 419. A married woman in Indiana can only charge her real estate by such 
 contracts as make it profitable to her. Smith v. Howe and Wife, N. S. ix. 449. 
 
 420. Deed of widOw executed while a minor is voidable. Wiser v. Loclewood's 
 Estate, N. S. ix. 641. 
 
 421. Where wife carries on a separate business from her husband, in her own 
 name, he will not be liable for a bill of goods sold to the wife on credit. Tuttls 
 V. Iloag, N. S. ix. 642. 
 
 422. Power of guardian over infant ceases at marriage. Porch y. Fries, N. 
 S. vii. 699. 
 
 423. Acknowledgment by married infant void. Id. 
 
 424. A deed of her separate estate without her husband joining, is void. Dean 
 and Wife v. O'Meara, N. S. vii. 229. 
 
 425. Married woman may make donatio mortis causa in Massachusetts with- 
 out husband's consent. Marshall v. Berry, N. S. vii. 121. 
 
 426. Married woman liable on her note given for cattle to stock farm for her 
 separate use. Batchelder v. Sargent, N. S. vii. 253. 
 
 427. When a married woman is called as a witness, and objected to on the 
 ground of interest, she cannot remove the objection by a release in which her 
 husband does not join, notwithstanding the Act of 1848. Ulpv, CampbeU,0. 
 S. i. 122. 
 
 428. A married woman, abandoned by her husband in a foreign country, is 
 compelled to contract for necessaries and sue and be sued in same manner as a 
 feme sole. Howard v. GMens, 0. S. v. 125. 
 
 429. The father of an infant being dead, the mother is entitled to its custody, 
 but where she is seeking by habeas corpus to have the child, the court may exer- 
 cise its discretion. Armstrong v. Stone and Wife, O. P iii. 51. 
 
 430. The domicile of the wife is the domicile of the husband. Fabes v. Fabes, 
 O. S. iii. 256. 
 
 431. Bequest to persons entitled under the Statute of Distribution upon death 
 of feme, husband not entitled. Milne v. Gdbert, 0. S. iii. 256. 
 
 432. Construction of word " unmarried." Hall v. Eobertson, O.S. iii. 256. 
 
 433. Though in strict law a married woman has no power to make such con- 
 tracts, except when joined with her husband, yet, in order to prevent great in- 
 justice, they will be enforced in equity, and according to the necessities of com- 
 mon justice, rather than to the terms of the contract. Glass v. Warwick, N. S. 
 i. 565. 
 
 434. The wife cannot be allowed to testify to a private conversation with her 
 husband in which he ratified her purchases ; but she is a competent witness as to 
 other facts. And the plaintiff's books of account are inadmissible to prove that 
 credit was given to the testator ; but they, in connection with hissuppletory oath, 
 are admissible to prove the delivery of the goods. Dexter v. Booth, N. S. i. 382. 
 
 435. Wife incompetent witness when husband's interests are directly involved, 
 though not a partj^. Young v. Gdman, N. S. vi. 380. 
 
 436. A contract by a married woman for sale of her real estate, and a deed 
 executed by her alone, is void. Phelps v. Morrison, N. S. xiii, 56. 
 
 437. A judgment against the husband is no notice to wife's grantee if the title 
 is in her. Id. 
 
 438. Such judgment is no encumbrance on the property. Id. 
 
 439. A married woman has not 'capacity to enter into a general mercantile 
 partnership not connected with or relating to her separate property, and where 
 
HUSBAND AND WIFE. 515 
 
 she assnmes to do so with the consent of her husband, and is by liim assisted m 
 manai;ing and carryitrg on the business, the husband, and not the wife, is to be 
 regarded in law as the partner. Swasey v. Antram, N. S. xiii. 577. 
 
 440. A feme covert Iiaving obtained a " permit" to trade within the lines of 
 the array, with the knowledge and consent of her husband, entered into a part- 
 nership with other persons, for the purpose of buying and selling goods and 
 merchandise under s.iid "permit," and herself, with the assistance of her hus- 
 band, managed and conducted the business. The firm was subsequently dissolved, 
 and its property transferred by the other partners to her, she agreeing to pay all 
 the partnership debts. She then sold the property to S., who had notice of all 
 the facts, and who in like manner agreed to pay the partnership debts. This 
 was all done with the knowledge and concurrence of the husband, who joined her 
 in executing the bill of sale to S. In an action by a creditor of the firm against 
 the husband and the other members of the firm, not including the wife, held, 
 that the goods in the hands of S., or the price agreed by him to be paid therefor, 
 and not yet paid, are liable to attachment in the action. Id, 
 
 VI. Of Actions bt and against Husband and Wipe. 
 
 441. Where in one count of the declaration in such action the promise was 
 alleged as made to the wife, and in another as made to the plaintiffs ; but in the 
 latter case the allegation of the promise was preceded and followed by language 
 which showed that the promise was made for the wife's benefit : it was held, that 
 the fair reading of this count was that the promise was made to her, and conse- 
 quently there was no misjoinder of counts. Fuller and Wife v. Naugatack Rail- 
 road Co., O. S. i. 567. 
 
 442. A promise founded on a consideration relating to the wife's personal 
 security does not vest absolutely in the husband, but may be the subject of an 
 action in the name of husband and wife. Id. 5G8. 
 
 443. In all cases where the cause of action will survive to the wife, she may 
 join with her husband in a suit upon it. Id, 
 
 444. Under a statute providing that the separate property of a married woman 
 shall remain under her sole control, &c., a married woman, as to her separate 
 property, is in the condition of a. feme sole, and may bring an action at law in 
 her own name, without joining her husband. Emerson v. Clayton, N. S. iii. 
 530. 
 
 445. Actions under statutes providing for wife's separate estate. Note to 
 Emerson v. Clayton, N S.iii. 533. 
 
 446. Married woman may, in New York, maintain an action in her own name, 
 and counter claims against the husband will not be allowed. Faine v. Hunt, N. 
 S. iii. 252. 
 
 447. In a suit by husband and wife, for the loss of merchandise of the wife 
 before marriage, she is not a competent witness for the plaintiffs. Smith and 
 
 Wfe V. Boston ^ Maine Railroad Co., N. S. iii. 127. 
 
 448. The Act of March 20th 1860, concerning the rights and liabilities of hus- 
 band and wife, by exempting the husband from all liability upon or in respect to 
 bar"ains or contracts made by the wife in or about the carrying on of her trade 
 or business, recognises the ability of the wife to make executory contracts, which 
 will be valid as against her, notwithstanding her coverture. Barton v. Beer, N. 
 S. i. 310. 
 
 449. When vendor, selling to wife on her separate credit, cannot recover of hus- 
 band. Hill V. Goodrich, N. S. vi. 250. 
 
 450. Liability of husband, deserting his wife and children, for necessaries. 
 Note to Carter v. Howard, N. S. vi. 411. 
 
 451. Statute making husband and wife witnesses for each other only confers 
 a privilege, which party may or may not assert. Knowles v. People, N. S. vi. 
 636. 
 
 452. Inferences against husband for failure to call wife. Id. 
 
 453. Husband and wife should join in writ of entry for land conveyed to them 
 for their lives. Wentwnrth v. Reinick, N. S. vii. 254. 
 
 454. Suit lies in New York by wife against husband for conversion of her 
 separate estate. WhHney v. Whitney, N. S. vii. 508. 
 
 455. Admissions of marriage by plaintiff, evidence to support plea for non- 
 joinder of husband. Laughhn v. Eaton, N. S. vii. 443. 
 
516 HUSBAND AND WIFE. 
 
 a 456. Married woman cannot sue alone, though her iinsband has been away for 
 several years. Laughlin v. Eaton, N. S. vii. 443. 
 
 457. Wife may be compelled to he witness as to matters aiFecting only her 
 own interests. Kinney y. Metier, N. S. rii. 699. 
 
 458. Since the Acts of the Legislature of New York of 1 860, chap. 90, and of 
 1862, chap. 172, a married woman may bring an action in her own name against 
 a wrongdoer, for a wrong committed upon her person, without joining her.hus- 
 band with her as a party. Ball v. Bullard, N. S. viii. 381. 
 
 459. Husband entitled to protection of the court from the wife's passions. 
 White V. While, 0. S. viii. 637. 
 
 460. Where a husband brings an action as administrator of his wife, for the 
 damages resulting from her death by the negligence of the defendant, he can 
 recover only for the pecuniary injury sustained by her next of kin. The value 
 of her services to him docs not enter into the estimate of damages, and evidence 
 thereof is inadmisible. Dickms v. Neio Yorlc Central Railroad Co., N. S. i. 58. 
 
 461. No action can be sustained in Massachusetts by husband and wife jointly 
 to recover for the conversion of property which they claim under a mortgage 
 executed to the wife alone to secure money lent by her, a portion of which was 
 furnished to her by her husband. Hennessey v. White, N. S. i. 57. 
 
 462. In an action for damages, by a husband and wife, against a railroad com- 
 pany, for permanent injuries received by the wife, the Carlisle tables may be 
 admitted to show the expectancy of the Avifc's life, when it appears from the evi- 
 dence that, by reason of such injuries, a servant had been, and probably would 
 have to be, employed to do the work the wife had been accustomed to do. McDon- 
 ald ct ux V. Chica'ijo Sr N. W. R. Co., N. S. ix. 10. 
 
 463. Section 2771 of the Revised Statutes of Iowa changes the common-law 
 rule, that in an action wherein the husband and Avife were joined, for an injury 
 to the wife, the recovery was limited to damages for that injury alone, iuul did 
 not embrace the injury to the husband ; and under said section the husband, in 
 such an action, may join thereto a claim in his own right, and recover for the 
 loss of services of the wife, occasioned by the injury. Id. 
 
 464. Declarations of tlio husband as to property, after the title to the same is 
 vested in the wife, are not competent evidence against her. Gillespie v. Walker, 
 N. S. ix. 515. 
 
 465. A divorced wife is incompetent to testifyinbehalf of her former husband, 
 in a suit by him against her seducer. Rea v. Tucker, N. S. ix. 642. 
 
 466. In an action of crim. con., the detendant may prove the adulterous con- 
 duct of the husband, in mitigation of dam.iges, but not in har of the action. Id. 
 
 467. Or that the plaintiff's wife had been guilty of adultery before. Jd. 
 
 468. At common law, an action lay against husband and wife jointly, for a 
 libel bv the wife alone, which is the rule in New York. Tait v. Culberton and 
 Wife, N. S. ix. 715. 
 
 469. In an action brought against a husband and wife by judgment-creditors, to 
 set aside conveyances made by them, neither the testimony, acts nor declarations 
 of the husband can be used to implicate the wife or divest her of her estate. 
 Lormore v. Campbell, N. S. xi. 60. 
 
 470. A suit brought by a husband arid wife for personal injuries received 
 by the wife does not survive to the husband. Saltmarsh v. Candia, N. S. xi. 
 266. 
 
 471. Where husband obtains a verdict, and after becoming administrator is 
 willing to ratify what has been done, still the verdict must be set aside. Id. 
 
 472. Where the vendee of land sold by a married woman cannot get posses- 
 sion as stipulated for, on account of a lease, he is entitled to a defence, in an 
 action on a bond given for the purchase-money, to the extent of his injury, not- 
 withstanding the coverture. Cross v. Noble, N. S. xi. 266. 
 
 473. The vendor's defence was not setoff, which is a cross-action, and in 
 which the personal liability of the vendor to damages would have arisen. Id. 
 
 474. Hail the whole purchase-money been paid the vendee could not have sus- 
 tained an action against the vendor. Id. 
 
 475 In an action to recover the consideration of a sale, the defendant may 
 show that It has failed in whole or in part. Id. 
 
 476 A husband is not liable to an attorney for professional services rendered 
 his wife in defending a libel lor divorce by the husband against her upon the 
 
HUSBAND AND WIFE. 517 
 
 ground of ndulterv, even though sueh defence mav prove successful. Ray v. 
 Adden, N. S. xi, 702. 
 
 477. Where a husband charges his wife before a justice of the peace with 
 having threatened him with personal violence, and fails to sustain such charge, 
 lie will be held liable to the attorney of the wife, in an action brought to recover 
 for services rendered upon her retainer. Wnrner v, Heidm, N. S. xi. 279. 
 
 478. Whether his presence when the services were rendered, and making no 
 objection thereto, would make him liable on an implied promise to pay for them, 
 gucere. Id. 
 
 479. A husband cannot, without authority, acknowledge service of a summons 
 for his wife. Miore v. ITat/e, N. S. xi. 396. 
 
 480. A judgment determining that a woman has no right in certain land, ex- 
 cept such as she has as wife, affects her substantial rights. Id. 
 
 481. In New York a married woman may sue and be sued upon all bargains, 
 obligations and liabilities, the sarao as if she wore sole. Foster v. Conger, N. S. 
 XI. 396. 
 
 482. If an action is brought against her in reference to her business, it is brought 
 in the same manner as against any other individual. Jd. 
 
 483. Where a wife in Georgia makes a contract for her own labor, with her 
 husband's consent, she to receive the compensation, she may sue in her own 
 name. Merriwether v. Smith, N S. xi. 397. 
 
 484. Larceny of property of the wife ; the title of must be laid in the wife. 
 Commomoealth v. Murlin, O. S. i. 434. 
 
 485. Wife's refusal to join indeed made pursuant to contract of sale by hus- 
 band ; equity will relieve purchaser. Piiul. v. Yovng, 0. S. iv. 412. 
 
 486. Chancery will compel specific performance of articles of separation, en- 
 join the husband from proceeding in the Ecclesiastical Court for restitution of 
 conjugal rights, till the execution of a proper deed, where the articles stipulate 
 that he shall permit his wife to live separate and apart, as if she were unmarried, 
 without any molestation on his part : and afterwards direct the insertion in the 
 deed of a covenant by him not to compel the wife to cohabit or live with him by 
 any ecclesiastical censures or proceedings. ]Vi>son v. Wdson, 0. S. in. 12,5. 
 
 487. No action lies against husband and wife for a false and fraudulent repre- 
 sentation that she was unmarried, whereby the plaintiff was induced to take her 
 promissory note as security for a loan to a third person. Though wife liable in 
 general for fraud, ret not where it is directly connected with a contract by her, 
 and forms part of it. Fairhurst v. Liverpool Loan Association, 0. S. iii. 12.5. 
 
 488. Legislature may divest the contingent right of a husband iu the chose in 
 action of the wife. Killam \.Killam, N. S. i.. foot-note page 32. 
 
 489 . Though a statute cannot take away the vested rights of dower or courtesy, 
 it can those which are merely inchoate. Id. 
 
 490. When husband and wife unite in bringing an uction, and the complaint 
 shows that one alone should bring the action, without the other, a demurrer will 
 lie for the same reason. Mann ^ Wife v. Marsh, N. S i. 379, 
 
 491. On a contract made by or with a married woman, after coverture, the 
 husband must sue or be sued alone, notwithstanding the Act of 1848. And a 
 misjoinder of the wife is not cured by verdict. Williams v. Co'card, 0. S. ii. 5 1 0. 
 
 492. l*ower of "the husband over choses in action of the wife — the subject dis- 
 cusssed. O. S. ix. 193, 385. 
 
 493. Where they sue for slander of the wife, it is a good plea in bar that the 
 husband had himself communicated to defendant the slander. Tibbs v. Brown, 
 O. S. ii. 120. 
 
 494. By the law of Mississippi, the rights of the husband rest on the same 
 foundation as a title acquired by purchase, and for their extent courts will not 
 look beyond the conti-act of marriage. Lijon v. Knott, O. S. ii. 604. 
 
 495. In an action for money liad and received, for usurious interest, against 
 husband and wife, not as such, but as joint debtors simply, where they defended 
 separately and a verdict was given against the wife alone, the jury not passing 
 on the husband's defence, the plaintiff was allowed to discontinue his complaint 
 against the husband and retain his verdict against the wife. Porter v. Mount, 
 H. S. V. 292. 
 
 4U6. A party lending money secretly to a wife for her use, cannot maintain 
 an action against the husband for the loan. Franklin v. Foster, N. S. x. 410. 
 
518 HUSBAND AND WIFE. 
 
 437, A husband cannot, even with his wife's consent, maintain an actifln in 
 his name for an injury to his wife's horse. Green v. iVortA Yarmouth, N. S. x. 
 603 
 
 498. After divorce, a woman may maintain an action against her former bus- 
 hand, on a note given during coverture for borrowed money. Webster v. Webster, 
 N. S. X. 603. 
 
 499. Husband being in fact tenant and dispossessed by summary proceedings 
 for non-payment of rent, he alone should be relator in certiorari. People v. 
 McCaffrey, N. S. iv. 380. 
 
 500. On foreclosure of mortgage made by husband before marriage, the wife 
 need not be made party, her remedy, if anj', being an action to redeem. Smith 
 V. Gardner, N. S. iv. 380. 
 
 501. A husband may sue m his own name to enforce a contract made in rela- 
 tion to his wife's property. Wilson v. Sands, N. S. xii. 58. 
 
 502. A married woman may transfer her title to a promissory note with her 
 husband's consent, but she cannot be held liable on her indorsement. Moreau et 
 ux. V. Branson, N. S. xii. 597. 
 
 503. In trover against a husband by wife's administrator, the defendant is not 
 a competent witness of anything which occurred prioj- to adq)inistrator's appoint- 
 ment. Roberts V, Lund, N. S. xii. 731. 
 
 .504. The administrator can maintain any proper action against the husband 
 for the enforcement of wife's rights of property. Id. 
 
 505. Action for injury to wife through negligence of railroad company. Fuller 
 et ux. V. Railroad Co., O. S. i. 567. 
 
 506. Under the Act of April I5fh I85T, a widow may maintain an action for 
 damages against an innkeeper for furnishing her husband liquor when intoxicated, 
 in consequence of whiqh he fell under the wheel of his wagon and was killed. 
 Fink v. Garman, N. S. i. 499 
 
 507. Where a physician renders service to a married woman at her own re- 
 quest, and expressly upon her credit and living apart from her husband, he can- 
 not recover in assumpsit against the husband. Carter v. HoiDard, N. S. vi. 411. 
 
 508. On trial of husband for attempt to poison his wife, the latter is competent 
 witness. People v, Northrup, N. S. vii. .636, 
 
 509. In suit in equity against debtor and debtor's wife to reach property 
 fraudulently conveyed, plaintiff may take deposition of wife. Crompton v. An- 
 thuny, N. S. vii. 186. 
 
 510. Husband may sue for death of wife — measure of damages. Hyatt v. 
 Adams, N. S. vii. 191. 
 
 511. Husband's consent bars his action for crim. con. Bunnell v. Grealkead, 
 N. S. vii. 313. 
 
 512. Negligence on his part goes to reduce damages. Id. 
 
 513. Under the Act of April 15th 1869 of Pennsylvania, a wife may be 
 called by her husband as a witness. Ballentine v. White, N S. xiv. 755. 
 
 514. A declaration against a married woman on a note alleging that it was 
 made by her' and her husband jointly, who is since dead, is bad on demurrer. 
 Wellcorne v. Riley, N. S. xii. 599. 
 
 515. In a suit by a feme covert, without joining her husband, the declaration 
 should set forth the circumstances. Dutton v. Rice, N. S..xiv. 126. 
 
 516. The burden of alleging the facts necessary to entitle a feme covert to sue 
 alone should be on her. Id. 
 
 517. A married woman is not liable upon a special promise to pay her hus- 
 band's debt, unless made in a form to bind her separate estate. Lennox v. Eldred, 
 N. S. xiii. 125. 
 
 518. Nor on a verbal promise made after his death. Id. 
 
 ^ 519. A wife whose goods have been levied upon by a creditor of her husband 
 is entitled in an action of trespass de bonis asportatis, to damages, punitive if the 
 defendant acted after notice. Strasburger v. Barber, N. S. xiii. 258. 
 
 520. Under the Code of Maryland, a married woman may sue in trespass de 
 bonis asportatis, by her next friend, without joining her husband, id. 
 
 521. Married woman tenant in common of properly occupied by her and her 
 husband, husband not bound to account. Wilcox v. Wilcox. N. S. vii. 127. 
 
 522r It is no objection to an assignment for the' benefit of creditors stipulating 
 
HUSBAND AND WIFE. 519 
 
 a release that the wife of a grantor does not join therein. Breitenhach v. Dungan, 
 O S, i. 419. 
 
 523. Plaintiff's conduct on learning of wife's offence, is admissible in evidence 
 on question of damages. Hutcluns v. Kimnml, N. S. xiv. 252. 
 
 524 Husband may be punished criminally for an offence committed by his 
 v/ife in his presence. Ihnsleij v. The State, N. S. xiv. 394. 
 
 525. Where the husband is sousrht to be charged fur a sale by his wife, of 
 liquor without a license, evidence of similar sales is admissible. Id. 
 
 526 The testimony of a witness that he bought the liquor is sufficient to prove 
 a sale of It. Id. 
 
 527 The statutes of Illinois having given a married woman the sole control 
 of her property and carning-i, free from any control or interference of the hu-^- 
 hand, the necessary operation of such statute is to discharge the la'tter from any 
 liability for tiie wife's torts committed during coverture out of his presence and 
 without his participation. Martin v. Robion, N S. xiii. 547. 
 
 528. That grantee gave wife a note of the husband's as consideration for tlia 
 land, is inadmissible in evidence in ejectment by the husband. Houck v. Bitter, 
 N. S. XIV. 584. 
 
 529. Under the statutes of New Yoi'k, a wife cannot acquire the legal title to 
 a chose in action, assigned to her by her husband, unless she has a separate es- 
 tate. Carpenter v. Tatro, N. S. xiv. 319. 
 
 530. Every action must be prosecuted in the name of the real party in interest. 
 M 
 
 531. Wife cannot sue on claim assigned to her by her husband. Id. 
 
 532. Where wife refuses to join in the conveyance of land, the court will not 
 compel husband to furnish indemnity against her dower. Reilly v. Smith et ux., 
 N S xiv. 320. 
 
 533. Specific performance will not be decreed in such case. Jd. 
 
 534. A husband may recover damages for injury to his wife occasioned by de- 
 fective highway, under the 120th sect., 19th eh., of R. S. of Wisconsin. Sunt v. 
 To:ca of WtiiJiJd, N. S. xiv. 705. 
 
 535. Bill in equity by wife against Iter husband's mortgagee for her property 
 acquired by her savings, should allege that they were with her husband's consent. 
 Rivers v. Charlton, N. S. xiii. 58. 
 
 5.36. In an action for criminal conversation, actual marriage must be proved. 
 Sutchins V. Khnmel, N. S. xiv. 252. 
 
 537. Assignments of life-policies by debtor, insolvent when insured in trust 
 for wife, void against creditors. Elliott's Executors' Appeal, N. S. v. 377. 
 
 538. Money borrowed by a husband from his wife, and secured by a note, will, 
 after her death, be regarded as a claim against him. Huston v. Cone, N. S. xiii. 
 655. 
 
 539. Admission by a wife that certain property levied upon belonged to her 
 hu-band, would not be binding as an estoppel. Whedon v. Champhn, N. S. a.. 
 475. 
 
 540. A wife is a witness as to the physical condition of her husband after an 
 injury. Stack v. Portsmouth, N. S. xii. 662. 
 
 VII. Akte-nuptial Contracts. 
 
 541. An ante-nuptial contract between husband and wife in respect to the 
 dispositions and enjoyment of their respective estates, is one in which both par- 
 ties should exhibit the utmost good faith, and any designed and material con- 
 cealment ought to avoid the contract at the will of the injured party. Kline v. 
 ICline. N. S. vji. 713. 
 
 542. Marriage settlement conveying property to which wife might become 
 entitled does not pass after acquired property, and equity will not enforce it as 
 an agreement to convey unless such be the plain intent of the parties. 'Stein- 
 herger v. Pntter,'N. S. vii. 762. 
 
 543. A marriage settlement incomplete by reason of a want of trustees is only 
 an agreement to make a settlement. Bruce and Wife v. Thompson, 0. S. iii. 
 237, 
 
 544. A promise to release in consideration of marriage is void. Brenner v. 
 Brenner, N. S. xiv. 584. 
 
 545. Where, by an ante-nuptial agreement, wife accepts a pecuniary com- 
 pensation in lieu of dower, and on the death of the husband, without electing to 
 
520 HUSBAND AND WIFE— ILLEGAL VOTING. 
 
 waive the provision in the ngreement, hut induced by the fraud and artifice of 
 tlie only son and heir, accepts it in full of all claim, and retains it, she will be 
 barred of dower and homestead. Hathaway v. Hathaway's Est., N. S. xiii. 778. 
 
 546. By an antenuptial contract between B. and L. in 1857, B. agreed that 
 certain bank and other stocks, then conveyed by him to a trustee, should bo 
 held by the trustee for the sole use of L. during her life, and be subject to any 
 disposition she might make of them by will or written appointment ; the same 
 to be in lieu of dower and of all distributory share of his personal property if 
 she should survive him. Held, that the right to the income from the stocks did not, 
 under the statute (General Statutes, tit. 13, sect. 20), vest in the husband on the 
 marriage, but that it belonged to the wife as her sole and separate estate. Board- 
 man's Appeal, N. S. xiii. 477. 
 
 547. B. subsequently made a will, in which he referred to the ante-nuptinl 
 contract and confirmed it, and gave to his widow his mansion house anil §200,000 
 for her life ; stating his object to be to make abundant provision for her support 
 and comfort, in lieu of dower and of all share in his real and personal estate. 
 It appeared from evidence outside of the will that B. did not expect his widow to 
 make a claim upon his estate for the dividends he had received, and that he made 
 the forgoing provision for her in his will in that belief; also that the provisions 
 of the will in her favor had been made known to her and that she had expressed 
 herself fully satisfied with them. Held, that it was of questionable propriety to 
 go outside of the will for evidence of the purpose and understanding of the 
 testator ; but that the will, taken by itself, or in connection with the facts stated, 
 did not make the acceptance of its provisions by the widow a bar of her right to 
 present a claim against the estate for an indebtedness. Id. 
 
 548. And held, that her right to any portion of the sums received by B. as 
 dividends was not barred by the Statute of Limitations. Id, 
 
 YIII. Actions foe Breach of Promise op Maukiage. 
 
 549. In an action for breach of promise, defendant may give evidence of 
 plaintiff's admissions, that she did not care for him, though made after defendant's 
 final refusal to marry her. Miller v. Hosier, N. S. xiv. 700. 
 
 550. In such action evidence of defendant's pecuniary circumstances is admis- 
 sible. Id. 
 
 551. An instruction that plaintiff should be awarded such damages as would 
 place her in as good condition pecuniarily as if the contract had been fulfilled, is 
 wrong. Id. 
 
 IX. Domicile. 
 
 552. How far that of the wife is controlled by the husband, discussed. N. S. 
 iv. 129. 
 
 ICE. 
 
 1. The owner of the fee may take ice from the canal if it d i not interfere with 
 navigation or the use of the water. Edgerton v. Hvff, N. S. vi. 720. 
 
 2. When fact of road being slippery from ice upon it is not a defect for which 
 town is liable. Stanton v. Springfield, N. S. vi. 570. 
 
 3. Where the state has taken a fee simple in lands for its canals, the former 
 owner cannot take ice from canal. Waterworks v. Burkhart, N. S. xiii. 254. 
 
 IDENTITY. 
 
 In an action on a note the execution of which was admitted, bnt the Statute 
 of Limitations pleaded, the plaintiff called onewho testified that acting as his attor- 
 ney, he had addressed a letter through the post-office to the defendant, with whom 
 the witness was not personally acquainted, on the subject of the claim, to which 
 he duly received a reply ; and that shortly after this, a person called at his office 
 who introduced himself as the defendant, and in conversation made such a pro- 
 mise as would have taken the case out of the statute. The defendant's name was 
 an unusual one, and no attempt was made to show a false personation. Held, 
 BiifRcient prima facie proof of identity to allow the evidence to go to the jury. 
 Kelly V. Valney, 0. S. ii. 499. 
 
 ILLEGAL VOTING. 
 
 1. In indictment for, it is sufficient to allege that election was duly holden, 
 without stating how or by what authority it was warned. Stale v. Marshall, N. 
 S. iv. 507. 
 
 2. Proof in indictment for illegal voting. Id. 
 
ILLEGITIMATES— INCOME TAX. 521 
 
 ILLEGITIMATES. 
 
 1. Illegitimate children entitled, under Pennsylvania Act of April 27th 1855, 
 to share real estate of mother equally with legitimate child. Opdyke's Appe.a!, 
 N. S. V. 255. 
 
 2. Mother taking real estate by devise from husband becomes stock of new 
 descent. Id. 
 
 3. In partition, equity will not try the question of complainant's illegitimacy. 
 Rwerview C. Co. v. Turner, N. S. xiii. 198. 
 
 4. The legislature has power to remove the legal taint of illegitimacy. Mc- 
 Gunnigle v. McKee, N. S. xiv. 754. 
 
 5. A child legitimated would take under such limitations. Id. 
 
 6. A child legitimated becomes for all purposes of inheritance a lawful child. 
 IJ. 
 
 IMPEACHMENT. 
 
 1. The act of removing a state oflBcer for misbehavior in office is judicial, and 
 belongs to the court of impeachment. State v. Pritchard, N. S. xii. 514. 
 
 2. Trial by impeachment; subject discussed.. N. S. vi. 257. 
 
 3. The law of impeachment ; subject discussed. N. S. vi. 641. 
 
 IMPLIED CONTRACTS. 
 
 Theory of, discussed. O. S. iv. 321. 
 
 IMPLIED WARRANTY. 
 
 The foundation on which implied warranty rests, stated and discussed ; and 
 the distinction between actual warranty, as matter of proof, and implied war- 
 ranty, as matter of law, pointed out. Hoe v. Sanborn, 0. S. viii. 740. 
 
 IMPORTER. 
 
 One who has consigned spirituous liquors to another to be sold in violation of 
 statute 1855, c. 215, cannot maintain an action for the breach of an agreement 
 by the consignee to render an account of sales, pay the value of the liquors sold 
 and return the residue. King v. McEvoi/, N. S. i. 689. 
 
 IMPOUNDING CATTLE. 
 
 For damage feasant. See Goodwin v. Chaveley, 0. S. vii. 684. 
 
 INADEQUACY OF PRICE. See Contract. 
 
 1. Sufficient in equity to prevent a decree for specific performance. Fulcke v. 
 Gray, O. S. viii. 116. 
 
 2. Though an executory contract will not be enforced in equity, if it be appa- 
 rently unconscionable, this is by itself not sufficient ground for setting aside one 
 that is executed. Davison v. Moore, 0. S. ii. 183. 
 
 3. Gross inadequacy of price on a sale of real estate, though evidence of fraud, 
 is not sufficient by itself to prove it ; nil the facts of the transaction must bo 
 considered together. Id. 
 
 4. One, who shortly after he becomes of age, in whom a tract of land is rested, 
 but in one-hnlf of which another has a life-estate, sells the whole tract, is not 
 within the rule in equity with regard to bargains by expectant heirs. Id. 
 
 5. A defendant in ejectment, who has possession without title, cannot set up 
 against the plaintiff fraud in the executor of a deed under which the latter claims, 
 it not appearing that the party injured, his representatives or creditors, have ob- 
 jected. Id. 
 
 INCEST. 
 
 How indictment should charge the offence. State v. Temple, N. S. v. 638. 
 
 INCOME. 
 
 Grant of income passes whole estate. Allen v. Henderson, N. S, v. 256. 
 
 INCOME TAX. 
 
 1. A testator directed an annuity to be paid out of his personal estate " with- 
 out any deduction whatever:" Held, that the income tax was payable by the 
 annuitant. Abadam v. Abadam, N. S. iii. 690. 
 
 2. Income tax due from the estate on which it was assessed, though it was a 
 life-estate, and tenant died before the end of the year. Holmes v. Taber, N. S. 
 iv. 512. 
 
522 INDIANS— mDICTMENT. 
 
 INDIANS. 
 
 Since the removal of the Miami tribe from Indiana, a marriage betwoen two 
 remaining members of the tribe, aocorrlmg to the native custom, will be invalid 
 in the courts of that state. Roche v. Washington, N. S. ii. 170. 
 
 INDIAN TITLES. 
 
 In a conveyance of land by the Indians, and in a treaty confirming and author- 
 izing such conveyance, it was stipulated that the grantees should not have posses- 
 sion until the value of the improvements made by individual Indians should he 
 appraised by commissioners. The commissioners were prevented from going on 
 the premises by individual Indians, and reported the aggregate value of improve- 
 ments only. Held, that that was not a valid excuse, and that right of the 
 grantees to the possession depended upon the individual appraisement as a con- 
 dition precedent, which not being performed, the grantees were not entitled to 
 the possession. Blacksmith v. Kendle, 0. S. i. 1S2. 
 
 INDICTMENT. 
 
 1. Where stolen property has been laid in a wrong person, the indictment 
 may be amended, even after the counsel for the prisoner has addressed the jury 
 and closed. Reg. v. Fullarton, O. S. ii. 573. 
 
 2. The court will not amend an indictment after plea, where in its amended 
 form it might be demurrable for generalty. Reg. v. Lallement, 0. S. ii. 573. 
 
 3. An indictment under the sixth section of the Act of Congress of April 20th 
 1818, for the suppression of the African slave trade, can be sustained against 
 one who holds, sells, or disposes of an African illegally brought into the country 
 from any foreign kingdom, place, or country, or from sea, no less than against 
 any person who shall illeg.^lly bring such African into the country. United 
 States V. Haun, 0. S. viii. 663. 
 
 4. The word " or" in this statute is not to he construed " and." Id. 
 
 5. Property in persons entering the United States with their own consent, and 
 mingling with property and persons in tlie states, in some manner and to some 
 extent, is not subject to Federal control ; but the case is otherwise with regard to 
 property imported contrary to law or smuggled, or persons imported against their 
 will. Id. 
 
 6. Some account of the Federal slave laws and their history. Id. 
 
 1. A fugitive slave having been brought by the marshal, under a warrant of 
 arrest, before the Circuit Court, the case was heard, and a certificate, whose con- 
 tents were conformable to the requirements of the Act of ISih September 1850, 
 authorizing his removal to the state from which he had escaped, was delivered to 
 the claimant. The claimant having afterwards made an affidavit that he appre- 
 hended a rescue, the marshal retained the fugitive in custody, placing him in 
 charge of certain deputies or assistants, who, when engaged in removing him, 
 were obstructed by the defendant. The acts of obstruction constituted or included 
 an attempt to rescue the fugitive from custody. When this occurred, neither the 
 claimant nor any private person as his agent was present. Held, that for the 
 purpose of the removal of the fugitive, and for incidental purposes, the certificate 
 liad established conclusively the relation of the claimant to the fugitive to be thnt 
 of a proprietary master to his servant ; that the subsequent custody of the mar- 
 shal was lawful only in consequence of the master's affidavit, and might have 
 been terminated by him at any time ; that if it had been thus terminated, or had 
 been interrupted, or had never taken efi'ect, the right of custody would have 
 been in the master alone ; that the marshal's custody, while it continued, was 
 not incompatible with afiy reasonable intervention, control, direction or partici- 
 pation of the master in which the marshal might acquiesce, but that the custody, 
 unless actually assumed by the master, was through his affidavit continued in 
 the marshal, in the same official character in which he had held the fugitive under 
 the warrant of arrest; that the defendant might, therefore, have been indicted 
 under the 22d section of the Act of April 30th 1790, for obstructing the marshal 
 as an officer, but that he was liable also to indictment under the 7th section of the 
 Act of 18th September 1850, for the attempt to rescue from the custody of the 
 marshal and his assistants. United Stat^ v. Buck, 0. S. viii. 540. 
 
 8. Under an indictment for such an attempt, the prosecution may be main- 
 tained without the abduction of any independent evidence that the fugitive owed 
 service or labor and had escaped from the state in which it was due. Id, 
 
INDICTiMENT— INFANT. 523 
 
 9. Such an indictment contained averments of the issuinp of the warrant of 
 arrest, and of the sabsequent proceedings, includinj^ the certificate and affidavit. 
 These averments were preceded by allcirotions that the fugitive had escaped, and 
 that he owed in the state from which he had escaped service or labor to the 
 claimant. Held, that the enactments of the law of l8th Septemlier 1850, as to 
 the conclusiveness of the certificate, rendered these preceding allegations matters 
 of mere inducement, and that the certificate having been produced in evidence, 
 no independent proof of them was required in order to sustain the prosecution. 
 TJniled States v. Buck, O. S. viii. 540. 
 
 10. Such a prosecution is not maintainable unless the defendant acted " know- 
 ingly and willingly." But his only ignorance that can excuse him is ignorance 
 of the custody or of its unlawfulness Where he might, upon Inquiry, have 
 really known the truth, his omission to inquire is evidence from which his actual 
 knowledge of the truth may be inferred. This is particularly the case where the 
 custody is official. Id. 
 
 11. Indictment for robbery in Ohio must contain allegation of an intent to 
 steal or rob. Boose v Ohio, O. S. v. 124. 
 
 12. The term propertj' ex vi ta-mini imports value, without the allegation that 
 the property is of value. Id. 
 
 13. A general judgment of guilty, rendered on an indictment containing some 
 good and some bad counts, is not erroneous. Id. 
 
 14. Indictment of several jointly not entitled to separate trials. Maton v. 
 The People, O. S. iii. 636 
 
 15. Since the Act of April Uth 1848, in Pennsylvania, the property of a 
 married woman is vested in herself, and hence, in prosecution for larceny of 
 wife's property, such property must be laid in the indictment to be in the wile, 
 or the prosecution cannot be sustained. Commomoealth v. Martin, 0. S. i. 434. 
 
 16. The utterance of obscene words in public, being a gross violation of public 
 decency and good morals, is indictable. Id. 
 
 17. In prosecution for the utterance of obscene language in public, it is not 
 necessary that the words should be proven exactly as charged to have been 
 spoken. Bell v. The .State, O. S. i. 367. 
 
 18. An indictment charging an offence substantially in the language of the 
 Code, is good. Sections 926 and 932 of the Code, which prohibit dram-shops, 
 and authorize proceedings against them, are not unconstitutional. Stale of Iowa 
 v. Out House No. 2, O. S i. 697. 
 
 19. An indictment for lewdness shonld charge that the acts constituting the 
 offence were openly and notoriously committed. State v. Moore, 0. S. i. •'579. 
 
 20. Delivery by the wife of her husband's goods to her adulterer, he having 
 knowledge that she had taken them without her husband's authority, is sufficient 
 to support an indictment for larceny against the adulterer. Reg. v. Featherslone, 
 O. S. ii. 695. 
 
 21. Nolle prosequi entered before trial on an information, no bar to. State 
 V. Dover, N. S. vi. 317. 
 
 IXFANT. 
 
 1. Injury to, whilst unattended in a public street in a city, without remedy. 
 Kreig v. Tl>Hs, O. S. iii. 442. 
 
 2. Possession against infants, in equity back rents to be accounted for. Hicks 
 ,. .Sathtt, O. S. iii. 314. 
 
 3 Notice to, under proceedings for foreclosure of mortgage. Tracey v. Law- 
 rence, O. S. iii. 318. 
 
 4. Title made by infant not absolutely void, hut voidable, and if he, on attain- 
 ing his majority, disaffirm the contract, vendee may recoup for valuable improve- 
 ments made. Weaver v. Jones, 0. S. iii. 56. 
 
 5. The domicile of the father, the domicile of the child. Forbes v. Forbes, O. 
 
 S. iii. 255. 
 
 6. Cannot by his own acts change his domicile. Id. 
 
 7. An infant is in esse, for the purpose of taking an estate for its benefit from 
 the time of its conception, provided it be born alive. Nelson v. Iverson, 0. S. 
 
 8. A plea of infancy to an action for calls on shares should aver that the 
 infant disaffirmed and repudiated the contract within a reasonable time. Dublin 
 ^ W.chluw Railway Co. v. Black, 0. S. i. 308. 
 
524 INFANT. 
 
 9. Infant's contracts in relation to personal property may be avoided during 
 his minority. Carpenter v. Carpenter, N. S. xiv. 57. 
 
 10. Falsely representing himself as of age will not estop infant from avoiding 
 his contract. Id. 
 
 11. Where infant has exchanged property with adult it is not necessary to a 
 disaffirmance that the latter should be placed in statu quo. Id. 
 
 12. An infant cannot affirm a contract made during his minority, until he 
 comes of age: Corey v. Burton, N. S. xiv. 706. 
 
 13. The retention of property after he comes of age, which he had obtained 
 by contract during his minority, would be an affirmance of the contract, /rf. 
 
 14. Degree of care required towards children of tender years. Note to Ban- 
 non V. Railroad Co., N. S. v. 477. 
 
 ] 15. Contract made with the government by the father in name of infant son — 
 rescission by government, an assignment for value l)v the father in the son's 
 name — assignment binds all parties but the son. Ptilnnm v. Hill, N. S. v. 767. 
 
 16. When trust for maintenance and education of children during minority by 
 widow, determined by her death. Fiizpatrick' i: Appeal, N. S. v. 192. 
 
 17. Where one of the assignors in an assigment is a minor, the assignment 
 is void as against creditor. Yates v. Lyon, N. S. xi. 330. 
 
 18. Any transactions between a guardian and ward who has reccntlv become 
 of age, will be deemed primi facie fraudulent. Garvin v. Williums, N. S. xi. 
 642. 
 
 19. A minor son enlisting with his father's consent, and sendiiig home money 
 earned by him, may recover the same, Ayer v. Ayer, N. S. viii. 636 
 
 20. The estate in remainder for an infant will not be sold when the benefit is 
 doubtful. In the matter of sale of lands of Steel, N. S. viii. 126. 
 
 21. Husband of infant cannot sell growing timber on her land. Poreh v. 
 Fries, N. S. vii. 699. 
 
 22. Tlie contract of an infant can be rescinded by its parent and a suit main- 
 tained for recovery of money paid under it. Sequin v. Peterson, N. S. xiii. 58. 
 
 23. Need not himself be free from fault to entitle him to recover damages for 
 fault of another. Railroad Co. v. Stout, N. S. xiii. 330. 
 
 24. Infant of tender years is not within the ordinary rule, that an employe* 
 cannot recover against his employer for the carelessness of a co-employee which 
 results in injury. Railroad Co. vf Port, N. S. xiii. 331. 
 
 25. The privilege of infancy cannot be used as a weapon of attack or fraud, 
 and an infant cannot repudiate liis deed and regain the property without restoring 
 the consideration paid for it. Prout v. Wiley, N. S. xiii. 460. 
 
 26. Delay alone will not operate as an affirmance of a deed executed during 
 minority, nor prevent a minor from reclaiming the land at any period within the 
 Statute of Limitations. Id. 
 
 27. A parent in sending his child to school surrenders to the teacher such con- 
 trol over the child a< is necessary for the proper government and discipline of 
 the school. But where the parent desires that the child shall omit a part oC [he 
 regular course of study, and so' directs bim, tlie teacher has no paramount 
 authority to enforce the study of the omitted part, and corporal punishment of 
 the child for disobedience under such circumstances is an unlawful assault. 
 Morrow V. Wood, N. S, xiii. 692. 
 
 28. The fact that the school was a public one, in which the studies were pre- 
 scribed by statute, held not to vary the general rule as to the right of a parent to 
 direct the omission of part of the prescribed studies. Id. 
 
 29. Power of guardian ceases over infant at marriage. Porch v. Fries, N. S. 
 vii. 699. 
 
 30. Acknowledgment by married infant void. Id. 
 
 31. Deed of a widow executed when a minor, is void. Wiser v. Lockwood, N. 
 S. ix. 641. 
 
 32. No exceptions can be. claimed in favor (if minor unless they are expressly 
 mentioned by the statute as excepted. Ds Mois v. Newton, N. S. ix. 452. 
 
 33. Where negligence is concurrent, a child will not be held to the same degree 
 of care as an adult. Crissey v. Hestonville Railroad Co., N. S. xiv. 124 
 
 34. A minor cannot consent to change of forum. Kingsbury v. Kingsbury, N. 
 S. xiii. 127. 
 
INFANT. 525 
 
 35. Sending child two years and a half old across the street without attendant 
 is negligence. CaV.ahan v. Bean^ N. S. iv. 44.5. 
 
 36. How fur the father is entitled to the custody of an infant child — subject 
 discussed. N. S. iv, 136. 
 
 37. Railroad liable for negligence of driver of street car where passenger is 
 an infant. Drew v. Sixth Aoenue Railroad Co., N. S. iii. 498. 
 
 38. Sale of lands by administrators and guardians as against infant heirs. 
 Gibson V. Roll, N. S. ii. 118. 
 
 39. Negligence of person having charge of young child is the same as his own 
 would he if he were an adult. Id. 
 
 40. What is prim^ facie evidence of such neglect. Id. 
 
 41. A child not of an age of discretion to understand the danger of riding on 
 the front platform of street car, cannot be charged with negligence in so doing. 
 A'lct iaginuw Railroad Co. v. Bo!m, N, S. xii. 74.5. 
 
 42. Assumpsit will not lie for an assignee of an order of one party on another 
 for money due for wages to infant son of former. Kenty. Watson, N. S. v. 697. 
 
 43. Maintenance allowed to a grandchild otherwise unprovided for, whether 
 legacy vested or contingent. Leibi/'s Appeal, N, S. v. 59. 
 
 44. Upon an application for sale of an infant's reversionary interest, the 
 qnestiun is, will the property bring as much now as at the death of the tenant for 
 life ? In re Side of Infant's Lands, N. S. x. 278. 
 
 45. The primary motive of judicial action in regard to the permanent custody 
 of infants is the well-being of the infants ; the technical right of the parents will 
 not control the decision. The State v. Baird, N. S x, 348. 
 
 46. An infant who has legally avoided a contract for labor stands precisely as 
 if it had never been made. Derocher v. Continental Mills, N. S. x. 603. 
 
 47. An infant may maintain an action by his mother, on an express contract 
 after his father's death. Eoynton v. Clay, N. S. x. 603. 
 
 48. An infant is liable in assumpsit for money stolen. Shaw v, Coffin, N. S. 
 X. 604. 
 
 49. The right to command the services and recover the wages of a minor son 
 beiii;; in the father, when he makes a contract for them there is no ground for 
 presuming that he is acting as agent for his son, or that the other person knows 
 it, and therefore the law does not presume it. Kauffelt v. Moderwell, 0. S. i. 
 634. 
 
 50. Where, to an action by an indorsee against the acceptor of a bill of ex- 
 change, payable four months after date (the defendant and the drawer both liv- 
 ing in the same town), the defendant pleaded " non accepit," and " infancy at 
 the time of the acceptance," and the acceptance was proved to be in the hand- 
 writing of the defendant, and it was also proved that the defendant came of age 
 on the last day but one of grace : Held, that the plea of infancy was sufBciently 
 proved. Roberts v. B;lhell, 0. S. i. 306. 
 
 51. Under the Act of Congress relating to the military establishment of the 
 United States, the enlistment of a minor, without tlie consent of his parent or 
 guardian, is void, and he can be discharged by the state authorities upon writ of 
 habeas corpus. Matter of W. H. Dohbs, a minor, 0. S ix. 565. 
 
 52. Pheian's Case, 9 Abbott 286, dissented from. Id. 
 
 53. An infant who is furnished with necessaries, and the means in cash of 
 procuring them, by his parent or guardian or from other sources, is prima facie 
 not liable for necessaries furnished by a tradesman or stranger on credit land a 
 party who seeks to evade the operation of the rule must prove a state of desti- 
 tution and necessity in the infant. Burghart v. Hall, 4 M. & W. 727, dissented 
 from. Rioers v, Grecjg, 0. S. iii. 88. 
 
 54. But a policy of insurance effected by the creditor under .such circumstances 
 on the life of the infant as security for his debt is not affected, it seems, by its 
 validity, and at any rate the proceeds of the policy cannot be claimed by the 
 infant's administrator. Id. 
 
 55. The Court of Chancery has jurisdiction over infants who are natural-born 
 English subjects, though born and resident abroad ; but, qumre, whether under 
 verv special circumstances it v/ill make an order with reference to the custody 
 of the infant in a case where the court sees no means of enforcing compliance 
 with its order. Hopev. Hope, 0. S. iii. 125. 
 
 56. Infant's deed may bo avoided by suit without refunding purchase-money. 
 Manning v. Johnson, 0. S. iv. 251. 
 
526 INFANT. 
 
 57. Where an infant, a native citizen of the state of N■e^v- Tort, and domiciled 
 in the city of New York, and havin}; .a guardian duly appointed at the place of 
 domicile, was clandestinely, and adversely to the wishes of the guardian, removed 
 from his jurisdiction and taken to England : Held, that the guardian was justi- 
 fied in attempting to recover the custody of the ward hy invoking the aid of the 
 English courts, and that the expenses of such proceedings were a proper charge 
 on the infant's estate. In re Dawson, an Irfant, O. S. iv. 241. 
 
 58. The surrogate, in respect to minors residing in his county, has the same 
 extent of authority as to the appointment of guardians as was possessed by the 
 late Court of Chancery of this state, whose jurisdiction was commensurate with 
 that of the English Court of Chancery. The statute directing such notice to he 
 given to the relatives residing in the county as tlie surrogate shall think reason- 
 able, does not exclude that officer from directing notice to any parties likely to 
 be interested in the welfare of the minor, whether residing in the county or 
 state, or even in a foreign country. Id. 
 
 59. In making the appointment of guardian, the surrogate's power and dis- 
 cretion are entirely unlimited, except by such known and established principles 
 as govern the conscience of all courts of equity. Relatives, whether residing in 
 another county or state, may be appointed to the guardianship, if they are proper 
 persons and give the requisite security. The consent of relatives is not requisite 
 to the appointment. The authority of the surrogate is not limited in this respect. 
 The I'elatives have no control in the matter, and they have no interest as parties, 
 but receive notice merely to inform the court so as to make the best appoint- 
 ment for the welfare and interest of the child. Id. 
 
 60. The surrogate possesses power to remove a guardian on proper cause being 
 shown. Id. 
 
 61. The powers of a guardian appointed by the surrogate are not restricted 
 by locality, more than in the case of any other officer in this state. He is recog- 
 nised as the lawful guardian throughout the bounds of the state. Ho cannot 
 in a strict sense exercise authority out of this state, but he is no more a. local 
 officer than an executor, or administrator, or a guardian appointed by the Court 
 of Chancery. Except as connected by the Constitution of the United States, 
 which does not touch the civil domestic government. New Yoik is as much a 
 foreign state, relatively to the other states of the Union, as England is relatively 
 to France. Id. 
 
 62. A direct promise, when of age, is necessary to establish a contract made 
 during minoritv, and a mere acknowledgment will not have that effect. Proctor 
 T. Sears, N. S." i. 690. 
 
 63. A warrant of attorney by a minor to confess judgment is void, and the 
 judgment entered on it ought to be vacated on motion, and may by writ of error. 
 The fact that the infancy may be traversed in the Supreme Court does not ex- 
 clude its jurisdiction. Knox v. Fiack, 0. S. ii. 185. 
 
 64. May ratify promise to pay money borrowed on joint account with another 
 person. Kenned// v. Doi/le, N. S. v, 511. 
 
 65. Claiming to retain land, upon majority, affirms mortgage given for price 
 during infancy. Young v. McKee, N. S. v. 254. 
 
 66. Proper care on the part of persons having charge of young infant. Munn 
 V. Reed, N. S. ii. 254. 
 
 67. May recover for an injury caused partly by his own imprudent act, but 
 the father cannot. Glasseij v. Hestonville Railwaij Co., N. S. viii. 315. 
 
 68. To a child of tender years no contributory negligence can be imputed. 
 North Penna. Railroad Co. v. Mahony, N. S. viii. 315. 
 
 69. The contracts of infants are : (1.) Binding, when for necessaries at fair 
 rates; (2.) Void, when manifestly and necessarily prejudicial ; and (3.) Void- 
 able, at the infants' election, either during minority or within a reasonable time 
 after attaining majority ; including all executory agreements not for necessaries, 
 and all executed contracts of this sort wherein the other party can be placed 
 substantially in statu quo. Robinson v. Weeks, N. S. viii. 554. 
 
 70. May recover for what he has done in execution of a voidable contract, by 
 restoring what ho received under it. Heath v. Stevens, N. S. viii. 574. 
 
 71. Neither an infant defendant nor his guardian ad litem can consent to the 
 taking of testimony before a person not properly authorized. Fischer v. Fischer, 
 N. S. xi. 129. 
 
 72. Where a bill is filed against an infant to have the title of certain lands 
 
INFANT— INJUNCTION. 527 
 
 vested In the infant, declared to bo in trust for complainant, the complainant is 
 not a competent witness in Iiis own behalf, either at common law or under the 
 Act of 1867 of Illinois. Fischer v. Fischer, N. S. xi. 129. 
 
 73. K contract by which a minor paid his bounty money to his master for his 
 consent to his enlistment, may be rescinded by the minor's administrator, and 
 the money recovered back. Dinsmore v. Wehhr-r, N. S. xi. 533. 
 
 74. The payment of a judgment to the attorney of record of the prochein ami 
 of an infant, is a good discharge of the judgment and binding on the infant. B. 
 iJ- 0. Railroad Co. v. Fitzpatrick, N. S. xii. 257. 
 
 75. A prochein ami is no party to the suit in the technical sense of the term, 
 but he may receive the amount of the judgment and enter satisfaction on the 
 record. Id. 
 
 76. The right of the prochein ami or his attorney is subordinate to that of a 
 regularly constituted guardian. Id. 
 
 77. An order of sale of an infant's land does not operate as a conversion of it 
 into assets, so as to prevent a judgment from operating as a lien. Shaffne:; 
 Adm'r, V. Briggs, N. S. xii. 403 
 
 78. The land of an infant may be sold on execution against him. Id. 
 
 79. Custody of belongs to father, but court will not of course on habeas cor- 
 pus order them delivered to him. The office of the writ is not to obtain posses- 
 sion of the person, but to I'ree it from illegal restraint. State v. Baird. N. S. 
 vii. 700. 
 
 80. Where children are too young to exercise discretion, court will do it for 
 them. Id. 
 
 81. The deed of an infant is voidable only ; not void. Irvine v. Irvine, N. S. 
 ix. 579. 
 
 82. The ratification after age must be clear and unequivocal. Id. 
 
 OFOKMATION. 
 
 Information in the nature of a quo warranto against persons usurping a fran 
 chise in Oliio, may be filed in the District Court of any county. Duties of county 
 prosecuting attorneys and the attorney-general of the state, as to. Ohio v. Buck~ 
 land, 0. S. V. 123. 
 
 INPRlIfGEMENT. 
 
 A sale of the thing patented, to an agent of the patentee, employed by him 
 to make the purchase, on account of the patentee, is not per se an infringement ; 
 accompanied by other circumstances, it may be evidence of an infringement. 
 Bi/nm V. BuUard, O. S. i. 139. 
 
 IN-IUNCTION. 
 I. Injusctions generally, and herein to restrain Actions at Law. 
 
 1. Will be granted to prevent persons from keeping forcible possession of a 
 church edifice, and preventing its regularly elected and qualified trustees from 
 entering. Lutheran Ev. Church v. Gristgau et al., N. S. xiii. 589. 
 
 2. By such injunction the plaintiff by its trustees may be restored to posses- 
 sion without any further order. Id. 
 
 3. Will not be granted to restrain a suit for money due upon a check, because 
 the plaintiff has sold a mortgage given as collateral security. Ilewitt v. Kukl, 
 N. S. xiv. 316. 
 
 4. To maintain an equitable offset, there must bo ground for protection against 
 the demand. Id. 
 
 5. To warrant the issuing of an injunction, there must be a full disclosure of 
 al! material facts ; all the res gestie must be represented. Johnston v. Glenn et 
 al., N. S. xiv. 398. 
 
 6. Allegations by lessee that he had quiet and peaceable possession under the 
 lease, without averment that he had performed all the covenants and conditions, 
 is insufficient to obtain injunction against lessor. Id. 
 
 7. Equity will not enjoin a pastor of a church from officiating, where it ap- 
 pears that the majority of the society wishes him to remain. Trustees of Ind. 
 Pres. Church v. Proctor, N. S. xiv. .583. 
 
 8. The Bankrupt Act does not authorize the courts of bankruptcy to enjoin a. 
 state court even in the matter of distribution of assets. Clark v. Bininger, N. S. 
 
 ix- 304. „ ^ . 
 
 9. Injunction will issue to prevent the cutting down of fruit trees by tenant 
 for life. Tainter v. Mxijor of Morrislojan, N. S. viii. 127. 
 
528 INJUNCTION. 
 
 10. Equity will interpose by matidatfiry injunction to compel the restoration 
 of running water into its usual channel when wrongfully diverted. Corning v. 
 Troi/ Iron and Nail Factory, N. S. ix. 63 
 
 1 1 . An injunction will not be issued to restrain a city corporation from entering 
 into a contract. Pulman v. Mayor of New York, N. S. ix. 123. 
 
 12. A private person cannot enjoin the obstructing of a highway without 
 showing special injury to himself. McGowan v. Whitesides, N. S. ix. 454. 
 
 13. The United States may bring an injunction in the circuit courts to protect 
 improvements. United States v. Du'uth, N S. x. 449. 
 
 14. The use of trade-marks, without the consent of the owner, will be restrained 
 by injunction. Stoncbraker v. Stonehraker, N. S. x. 543, 
 
 15. He who seeks to enjoin the collection of an excessive tax must be required 
 as a condition of relief to pay such an amount as is just. Merrill v. Ilumphrei/i, 
 N. S. xi. 208. 
 
 16. The use of a canal of an incorporated company cannot be restrained by 
 injunction on allegations of injuries to private parties. Union Canal Co-'s Appeal, 
 N, S. x. 405. 
 
 17. Where a railroad has irregularly appropriated lands of no particular value 
 to the owner, a court of equity will not enjoin their use by the company. £rie 
 Itailroad Co. v. Del., L. ^ W. Railroad Co., N. S. x. 350. 
 
 18. The minority of inhabitants in above case may lawfully demand for their 
 protection an injunction from the court. Allen v. The Inhabitants of ,7ay, N. S. 
 xii. 481. 
 
 19. An injunction will lie from the Supreme Court of Pennsylvania to restrain 
 the auditor-general from collecting a tax under an unconstitutional law. Markoe 
 V. Ilartranft, N. S. vi. 487. 
 
 20. Extent of injunction bond. Towle v, Towle, N. S. vi. 316. 
 
 21. Injunction against carrying passengers to and from a certain depot. Id. 
 
 22. As between state courts and United States courts, neither can enjoin the 
 process of the other. Chapin v. James, N. S. xiv. 214. 
 
 23. The obstruction of a highway" which cannot' be u.=ed is not such a griev- 
 ance as equity will redress by injunction. Attorney-General y. Brown, N. S. 
 xiii. 60. 
 
 24. By the charter of the Wilmington and Manchester Railroad Company, it 
 is provided that when any land or right of way is required for the construction 
 of the road, and the company and the proprietors of the land cannot agree upon 
 the value thereof, a commission shall issue from the Court of Common Pleas to 
 assess the value, whose return shall be made to the same court and upon pay- 
 ment or tender of the value so assessed, the lands or right of way shall vest in 
 the company. Held, that the company were not authorized to enter on the land 
 for the purpose of constructing the road until they had procured an assessment to 
 be made, and had paid or tendered the amount assessed, and that an injunction 
 was properly granted to restrain their proceedings. Bird v. Wilmingtmi and 
 Manchester Railroad Co., 0. S. iv. 222. 
 
 25. Legislative license to corporations to enter upon and appropriate the lands 
 of an individual against his consent, is against common right, and such acts 
 should be strictly construed. Corporations deviating from the line presc^'ibed by 
 the act or transcending the authority vested in them, may be restrained by injunc- 
 tion ; it is competent for the Court of Chancery to decree damages for waste or 
 injury already sustained, the same to be ascertained by an issue qvantum damniji- 
 catus, or in cases where neither the facts nor amounts are complicated, by reler- 
 ence to a master of the court. Id. 
 
 26. If a trade-mark is simulated in such a degree as to deceive customers, the 
 piracy may be checked by injunction. Fdley v. Fasset, N. S. viii. 402. 
 
 27. An injunction will be granted to prevent a tenant from committing waste. 
 McCay v. Wait, N. S. viii. 191. 
 
 28. Where a person bought and took possession of a house under a forged 
 deed, the true owner is entitled to have the deed cancelled and the purchaser 
 enjoined from assuming to sell the house to any one else. Bunce v. Gallagher, 
 N. S. vii. 32. 
 
 29. Mere diminution of value of surrounding property is not a ground for 
 injunction. Rhodes v. Dunbar, N. S. vii. 412. 
 
 30. Equity will enjoin a purchaser from obstructing a right of way where 
 there is no adequate remedy at law. McCaun v. Vai/, N. S. xii. 190. 
 
INJUNCTION. 529 
 
 31 . If trustees of deceased pm-tnei- do not account in a reasonable time, chan- 
 cery will grant an injunction and appoint a receiver. Nelson v. Hayner, N. S. 
 xiv. 587. 
 
 32. A private individual may obtain nn injunction to prevent a public mischief 
 by which he is affected in common with others. Wkilfield v. Rogers, 0. S. iii. 44. 
 
 33. An injunction may be granted by a court of blended equity and common - 
 law powers to restrain proceedings of an equitable nature in another court of co- 
 ordinate jurisdiction and similar powers in a litigation substantially first com- 
 menced and still pending in the former; and this, though the pleadings in the 
 first suit were not at the time of the institution of the second sufficiently compre- 
 hensive to embrace the relief therein sought, if such relief could by appropriate 
 proceedings be adequately obtained in the court first obtaining possession of the 
 litigation. Conover v. The Mai/or, 0. S. vi. 131. 
 
 34. A court of equity will not interfere to restrain legal proceedings where the 
 complainant has an adequate remedy at law. Erie Canal Co. v. Lourj, 0. S. 
 vi. 750. 
 
 35. Wliere rights of third persons not before the court will be affected by the 
 decree, injunction will not be granted. 2obin v. Walkinshaw, 0. S. v. 106. 
 See Johnson v. MuhbeU, O. S. v. 177. 
 
 36. Irreparable mischief — also where at the time of application for injunction 
 the question was pending in a court of law — injunction refused. Attorney- Gen- 
 eral v. Patterson, 0. S. v. 60. 
 
 37. An injunction will not be refused merely because the defendant is in pos- 
 session under an adverse claim of title. Burnley v. Cook, 0. S. iv. 445. 
 
 38. Injunction in force against negotiation of a note does not destroy its negoti- 
 ability. Winston y. Westfeldt, 0. S. ii. 619. 
 
 39. Injunction to restrain execution-creditor from seizing iron plates, sleepers, 
 &c., of a lessee of certain mines. See Duke of Beaufort v. Bales, N. S. i. 374. 
 
 40. Injunction against judgment recovered by assi'gnee of bond given for 
 purchase-money of land, on the ground of difficulties of title, Bagsdale v. Hagy, 
 O. S. iii. 53. 
 
 41. Where partners make a settlement under the sanction of an award of 
 referees, and certain conveyances are made in pursuance of such settlement, and 
 it afterwards turns out, upon a second reference, that the partnership dealings 
 and accounts are adjusted in another manner by reason of a miscal^e in the first 
 reference, but the matter of the division of certain land was not brought before 
 the second reference, equity will enjoin, by perpetual injunction, an action of 
 ejectment brought by one against the other. Farris v. Kirkpatrick's Heirs and 
 Administrators, O. S. vii. 672. 
 
 42. By the Act of May 6th 1844, it is provided that no injunction shall be 
 issued by any court, until the party applying for the same shall have given bond 
 conditioned to indemnify the other party, which act was intended to apply to all 
 cases, including the Commonwealth herself. The Commonwealth can give no 
 bond, there being no person authorized to make it ; and if given, no suit could 
 be maintained on it. Hence, the Commonwealth cannot have a preliminary 
 injunction. Commonwealth v. Franklin Canal Co., 0. S. i. 249. 
 
 43. To entitle a party to a preliminary injunction, his right must be clear and 
 free from doubt, or established by proceedings at law. Ilackensack Imp. Co. v. 
 New Jersey M. Railroad Co., N. S. xi. 56. 
 
 44. Where the principles of law on which the right rests, arc disputed, and 
 admit of doubt, a court of equity will not grant an injunction. Id. 
 
 45. An injunction must not issue where the benefit to be secured is of little 
 importance, while it will operate oppressively on the defendant. Id. 
 
 46. But to warrant his interference the abuse must be one of a substantial 
 nature, and not one merely technical and unimportant. Id. 
 
 47. The aid of a court of equity by injunction is not a matter of right, but of 
 grace. Uuckenstine's Appeal, "S. ^. iL\i. iOZ.~ ,' - ■ 'V , 
 
 48. An injunction which is too broad will be modified on appeal. Marble Co. 
 T. Ripley, N. S. x. 199. 
 
 49. Where an injunction was modified so as to allow the defendant to remove 
 certain machinerv, upon furnishing a sufficient bond, conditioned to pay the 
 plaintiff such sum as the court upon final decision might award, it was held, that 
 the obligors upon final decree were not necessarily to pay the entire sum due 
 
 34 
 
530 INJUNCTION. 
 
 from defendant, but only snch damages as plaintiff suffered by the removal. 
 Moulton, Adm'x, v. Richardson, N. S. x. 199. 
 
 50. In injunction to restrain proceedings at law on a sealed bill, alleging 
 undue influence in its execntion, complainant Is entitled to a discovery of the 
 consideration of the bill. Shoriwell's Adm'x v. Struher, N. S. x. 205. 
 
 51. A preliminary injunction will not be granted on doubtful points of con- 
 stitutional law, nor to restrain the execution of laws that may be used unwisely 
 or injuriously. Inhabitants of Greenville v. Seymour, N. S. xi. 265. 
 
 52. An injunction follows the appointment of'a receiver almost as a matter of 
 course. Seighorlner v. Weissenborn, N. S. ix. 388. 
 
 53. Will not be granted when an action of ejectment will restore complainant's 
 rights. Morris Canal Co. v. Fagin, N. S. xi. 268. 
 
 54. Will not lie to restrain acts that may possibly cast a cloud upon the title 
 of a party. Phelps v. City of Watertown, N. S. xi. 397. 
 
 55. Equity will not restrain a special tribunal condemning land, manifestly 
 without authority, so that its judgments are clearly void. Anderson v. St. Louis, 
 N. S. X. 602. 
 
 II. Injunctions to kestrain Commission op a NtJiSANCE. 
 
 56. A court of equity will not interfere by injunction in the case of a public 
 nuisance, where there exists any doubt of the character or legality of the act 
 complained of, but will leave the parties to an indictment or direct an issue. 
 Franhford v. Lennig, 0. S. i. 357. 
 
 57. Every case of alleged nuisance " raises a mixed question of law and fact. 
 Every trade and occupation, called into existence to supply the wants of civilized 
 life, whether in the construction of dwellings or otherwise, must be lawfully 
 carried on somewhere ; and, therefore, irrespective of the circumstances by 
 which it was surrounded, it could not be pronounced a nuisance. The plaintiff, to 
 succeed in a court of law, must prove first damnum and then injuria. In this 
 case there was positive evidence of the injurious effects which the operation com- 
 plained of had produced on the state of health of two of the plaintiffs and mem- 
 bers of their families ; and the fact might also be adverted to, that the plaintiffs 
 had been in complete enjoyment of these houses, without any brick-burning in 
 the neighborhood, until these operations had been commenced." Pollock v. Les- 
 ttr, 0. S. vi. 59. 
 
 58. Injunction against a brick-kiln will not be grantea, because it injures a 
 vineyard. Suckenstine' s Appeal, N. S. xii. 405. 
 
 59. A citizen who suffers a special injury from the obstruction of a street, 
 different from the public, is entitled to relief by injunction. B. ^ 0. Railroad 
 Co. V. Strauss, N. S. xii. 731. 
 
 60. But if he siiffers a public corporation to expend large sums of money in 
 ■contravention of his rights, without complaint, he is precluded from such relief. 
 Id. 
 
 61. A preliminary injunction will not be granted in behalf of the owners of 
 building lots held for sale, to restrain the erection near them of a slaughter-house, 
 where it is not alleged that any one intends to erect any buildings upon them. 
 Attorney-General v. Steward, N. S. ix. 387. 
 
 62. Filling the air around a dwelling-house with dense smoke and soot or 
 cinders, and with noxious vapors, so as to make it uncomfortable, is a nuisance, 
 and will be restrained by injunction. Duncan v. Hayes, N. S. xi. 132. 
 
 63. It is no objection to a bill for an injunction to restrain a nuisance that the 
 complainants are nineteen separate owners of the buildings said to be injured. 
 Robinson v. Baugh, N. S. xiv. 586. 
 
 64. The prosecution of a business which renders the neighborhood uncomfort- 
 able by smoke and noise, will be restrained by injunction. Ross v. Butler, N. S. 
 Tiii. 2.52. 
 
 65. To warrant enjoining a trade as a nuisance, on the ground that it produces 
 discomfort, the discomfort must be physical. Cleveland v. C. Gas-light Co., N. 
 S. ix. 388. 
 
 66. It is sufficient to sustain an injunction that the gases arising from defend- 
 ant's business are so offensive as to render life uncomfortable. Meigs v. Leister, 
 N. S. xii. 62. 
 
 67. No period of use, and under whatever claim of right, will protect nui> 
 sance from abatement or injunction. City v. JErickson, N. S. vi. 123. 
 
INJUNCTION. 531 
 
 in. Injunction to restrain Sale and Mancfaoture op Patented Article, 
 Use op Tkade-mark, Erection op Building, &c. 
 
 68. Injunction to prevent the erection of a bridge over a navigable stream. 
 See Constitutional Law. 
 
 69. D., an actor, contracted with W., the manager of a theatre, for twelve con- 
 secutive nights, commencing on u, certain day, stipulating, that he should be at 
 liberty during those niglits to perform (among other characters) three which 
 ■were named ; but there was no express condition that D. should not act else- 
 where during the twelve nights. On the approach of the day appointed for com- 
 mencing the engagement, D. declared that he would only act m a piece which 
 could not be produced at W.'s theatre, and when told that was impossible, de- 
 clared that he would not act at all for W., and advertised himself to act at 
 another theatre on the night appointed for the commencement of his engage- 
 ment. Held, that an injunction might be granted to prevent D. acting during 
 the twelve nights at any other theatre during the ordinary hours at which W.'s 
 theatre was open for public performance. Webster v. Dillon, 0. S. vi. 174. 
 
 70. An attempt to enter upon land without the damage for its taking having 
 been ascertained, will be restrained by injunction. Boldman v. O. B. S/- Lake 
 Pepin Railroad Co., N. S. xii. 187. 
 
 71. Trespass in general will not be restrained by injunction, but maybe if 
 amounts to a nuisance. Morris Canal Co. v. Fagan, N. S. vii. 700. 
 
 72. Equity will not enjoin a trespass merely because the defendant is pecuni- 
 arily unable to respond in damages. Morgan v. Palmer, N. S. ix. 519. 
 
 73. Injunction to restrain printing of trade-mark label. Farina v. Silverlock, 
 O. S. V. 315. 
 
 74. A court of equity will not restrain by injunction any lawful business, or 
 the erection of any building for such business, because it is alleged such busi- 
 ness will be a nuisance to a dwelling-house near it. Duncan v. Hayes, N. S, xi. 
 132. 
 
 75. No lawful occupation will be restrained or interfered with, unless it will 
 actually interfere with the comfortable enjoyment of life. Id. 
 
 76. Increased risk from fire, and the consequent large rates of insurance are 
 no ground for injunction. Id. 
 
 77. In questions of restraining a lawful business equity will consider the cus- 
 toms of the people and the characteristics of their business. Suckenstine's Ap- 
 peal, N. S. xii. 405. 
 
 rV. To restrain Trespass. 
 
 78. The principle is well established, that every common trespass is not a foun- 
 dation for an injunction, where it is only contingent and temporary ; but if it 
 continue so long as to become a nuisance, the court will interfere and grant an 
 injunction. Whitfield v. Rogers, 0. S. iii. 44. 
 
 79. The rule is laid down that in order to give jurisdiction, there must be such 
 an injury as from its nature is not susceptible of being adequately compensated 
 by damages at law, or such as from its continuance or permanency must occasion 
 a constantly-recurring grievance. Id. 
 
 80. Some persons had purchased graves from the trustees of a burial-ground 
 in perpetuity, but no grant was ever executed to them, and the sole evidence of 
 their title was a receipt for the purchase-money, stating the' fact of the sale. It 
 was held, by Sir John Eomilly, M. K., that the plaintiffs were entitled to an 
 injunction to restrain the trustees from injuring, defacing and obliterating the 
 graves of the plaintiffs in the burial-ground, or any of them, and from removing 
 any of the gravestones. Moreland v. Richardson, 0. S. vi. 64. 
 
 81. Irreparable injury to public lands will alone justify injunction to prevent 
 runiiing of a railroad authorized by a state through public lands. United States 
 T. Railroad Bridge Co., O. S. iii. 603. 
 
 82. The granting of an injunction to restrain encroachments on a canal, con- 
 sidered as a highway, will depend on the extent they impede navigation. Morris 
 Canal Co. v. Fagin. N. S. xi. 268. 
 
 83. Bill to restrain trespass must allege that respondent is insolvent, or that 
 it cannot be compensated by damages. -Weigel v. Walsh, N. S. ix. 647. 
 
 V. Remedt for illegally obtaining Injunction. 
 
 84. An action on the case will not lie for improperly causing a writ of injunc- 
 tion to be issued. The remedy is on the injunction bond. Gorton v. Brown, N. 
 S. ii. 540. 
 
532 IxXJUNCTION. 
 
 85. The case of Cox v. Taylor's Administrators, 10 B. Monroe 17, not recog- 
 nised as authority. Gorton v. Brown, N. S. ii. 540. 
 
 86. Remedy of person damaged by improper issue of, dissussed. Note to Gor- 
 ton V. Brown, N. S. ii. 547. 
 
 87. Want of jurisdiction in the court over the subject-matter will not prevent 
 defendant from recovering costs — and a defendant may have damages if he obey 
 the injunction, though he was not served and entered no appearance. Cumber- 
 land Coal Co. V. Hoffman Coal Co., N. S. ii. 701. 
 
 VI. To Prevent Violation of Building Restriction. 
 
 88. A landowner who has had the actual location by fence of certain land for 
 more than twenty-five years, is entitled to an injunction to restrain another from 
 building on the land. Southmaydy. McLaughlin, N. S. xiii. 199. 
 
 89. H., being the owner of two city lots, one a corner property, and the other 
 adjoining it, granted and conveyed the corner lot to D. and R. in fee, reserving 
 a perpetual ground-rent, upon the express condition that the grantees, their heirs 
 and assigns, should not erect any building upon the bacli part of the lot higher 
 than ten feet. H., at the time, and for some years afterwards, occupied the ad- 
 joining property as his residence. By five several mesne conveyances, all made 
 subject to the condition, the corner property became vested in M. in fee, H. having 
 some years prior to the conveyance to M. granted to the then owner permission 
 to raise his back building to the height of eleven feet, expressly stipulating that 
 such permission should not prejudice or impair the condition. H. died seised 
 of the adjoining property, and also of the rent reserved out of the corner lot. 
 His testamentary trustee granted and conveyed the adjoining property to C. , no 
 mention being made in the deed of the restrietion imposed on the corner property. 
 M. subsequently, by sundry mesne conveyances, became the owner of the rent 
 reserved, which thus merged, and M. threatened to bnild in entire disregard of 
 the restriction. C. filed a bill in equity to restrain him, and applicil for a 
 special injunction, which was refused, and M. went on and erected a three story 
 back building : Held, upon appeal from the decree of the court below, refusing 
 the injunction and dismissing the bill : — 
 
 (1.) That although the clause imposing the restriction was a strict condition 
 in law, yet equity would only inquire into the substantial elements of the agree- 
 ment, and would enforce it for any party for whose benefit it appeared to be in- 
 tended. 
 
 (2.) That the duty of the defendant not to build in violation of the condition 
 was clear ; and that this duty was not reserved as a mere personal obligation to 
 H., the original grantor, liis heirs and assigns ; nor for the benefit of the ground- 
 rent : but that it was for tlie benefit of the adjoining property then owned by H., 
 and created an obligation to the owner of that property, whoever he might be ; 
 and equity would interfere to enforce and protect his right. 
 
 (3.) That a general plan of lots need not be shown ; such a plan is only one 
 means of proof of the existence of the right and duty ; and this may appear as 
 well from a plan of two lots as of any greater number. 
 
 (4.) That the release of a part of a condition operates as a release of the whole 
 only where forfeiture of the estate for a breach of the condition is demanded ; 
 equity will enforce the condition in its modified form in favor of a party who asks 
 only compliance with the agreement. 
 
 (5.) That the defendant having built in violation of the condition, after bill 
 filed, the complainant was entitled to a decree of abatement without amending his 
 bill. Clark v. Martin, N. S. i.. 479. 
 
 VII. To PKETENT Abuse of CoKroEAiE Firinchise. 
 
 90. Bills filed by an American trading company incorporated by the law of the 
 state of Connecticut for an injunction to restrain defendant, a manufacturer of 
 Birmingham, from continuing the fraudulent use, as alleged, of the trade-marks 
 of plaintiffs, and for an account of profits. Defendant by his answer admitted 
 the user of the trade-marks complained of, but, by way of rebuttal of the charge 
 of fraud, stated that in so using the said trade-marks he had only followed a 
 custom prevalent at Birmingham to affix on the goods ordered by merchants a 
 particular trade-mark. The court, upon motion for decree, ordered tliat an inte- 
 rim injunction, which the defendant had previously submitted to, should be con- 
 tinued for a .year, with liberty to the plaintiffs to bring an action within that time 
 to try their right at law, and in case of their not procesding at law and to trial 
 
INJUNCTION— INNKEEPER. 533 
 
 within thfit time, tlien their bill should thereupon stand dismissed with costs. 
 The Collins Co. v. Reeres, O. S. vii. 506. 
 
 91. Where a company having power by Act of Parliament to raise an em- 
 bankment to a certain height, exceeds that height, a neighboring landowner is 
 not, on account of the possibility of injury to his lands, entitled to an injunction' 
 against the company ; but the right to such injunction is in the attorney-general 
 on behalf of the public. Ware v. Regent's Canal Co., 0. S. vii. 509. 
 
 92. Injunction to restrain the majority of a joint-stock association from using 
 the joint propertv, except within the scope of their business. Stevens v. Rail- 
 road Co., O. S. i." 154. 
 
 93. The attorney-general has the right to enjoin in equity an abuse of a cor- 
 porate franchise, as, for instance, the payment of money by a municipal corpora- 
 tion on a contract made in disregard of its charter. Maij v. City of Detroit, K. 
 S. xii. 149. 
 
 94. But the perversion or abuse of delegated powers, either actual or threat- 
 ened, will be restrained. Inhabitants of Greenville v. Seymour, N. S. xi. 2B5. 
 
 95. Injunction denied where the provisions of acts, though impolitic and op- 
 pressive, are within the power of the legislature. Jd. 
 
 96. Equity will restrain a municipal corporation from selling land for taxes 
 Illegally assessed. Leslie v. 5(. Louis, N. S. x. 602. 
 
 VIU. In Aid of SpECinc Performance. 
 
 97. Whatever be the doctrine at law with regard to covenants running with 
 the land, one purchasing real estate with notice of a covenant or agreement 
 affecting the same will be restrained in equity from a violation thereof. Coles 
 V. Sims, 0. S. iii. 123. 
 
 IX. Of the Dissolution of. 
 
 98. An injunction will be dissolved only upon the answer when denying the 
 facts on which the bill is founded. Teaseij v. Baker, N. S. viii. 122. 
 
 99. Will not be dissolved for new matter in avoidance alleged in the answer 
 and not responsive to the bill. Mest Jersey Railroad Co, v. Thoinas, N. S. a. 
 343. 
 
 100. An existing injunction can only be removed upon notice and motion to 
 dissolve. Manhattan Fertilizing Co. \ . Van Kensen, N. S. xi. 774. 
 
 INJURIES COMMITTED BY ANIMALS. See Animals. 
 
 INJURY. See Damages ; Railroad. 
 
 INLAND NAVIGATION. See Navigation. 
 
 INNKEEPER. 
 
 1. Lien on goods brought by a guest, but belonging to a third person. See 
 Snead v. Watkins, O. S. v. 567. 
 
 2. Action by wife against, for furnishing liquor to her husband, in consequence 
 of which he became intoxicated and fell and was killed. Fink v. Garinan, N. 
 S. i. 499. 
 
 3. Distinction between and boarding-housekeeper, as to liability as bailee for 
 goods of guests. Dansey v. Richardson, O. S. iii. 122. 
 
 4. Innkeepers are answerable for the honesty not only of their servants, but 
 of their guests. Gile v. Libby, N. S. i. 509. 
 
 5. Liabilitv for goods of guest brought infra hospitium. Burrows v. Trieber, 
 N. S. V. 444." 
 
 6. If lost or stolen, need not show negligence, /d. 
 
 7. How such liability may be discharged. Id. 
 
 8. When liable for valuables under New York Act of 1855. Bendelson v. 
 French, N. S. V. 319. 
 
 9. Not, unless deposited in the safe. Id. 
 
 10. A person charged for transient accommodation at an inn is entitled to 
 all the rights of a guest, though not a traveller. Walling v. Potter, N. S. ix. 
 
 618. 
 
 11. An innkeeper is responsible for the careful keeping of a hired horse, and 
 if the horse dies from negligent treatment, the hirer is not liable. Ruggtes v. 
 Fay, N. S. xiv. 260. . , , , 
 
 12. An innkeeper is liable for the loss of his guest's goods unless it be by his 
 negligence. Cutter v. Bonney, N. S. xiv. 445. 
 
534 INNKEEPER— INSANITY. 
 
 1 3. An innkeeper is held to guarantee the good conduct of his servants and all 
 other persons In his house. Hence, when the goods of a guest are stolen or 
 otherwise disappear in an unexplained way, the loss is presumed to be in conse- 
 quence of the innkeeper's negligence. Cutter v. Bonney, N. S. xiv. 445. 
 
 14. But where the loss happens by an accidental fire, or other casualty coming 
 from without, and of such nature as to negative his negligence, he is not liable. 
 Id. 
 
 1 5. The liability of an innkeeper extends to money stolen from the trunk of a 
 guest. Stanton v. Ldand, O. S. vii. 264. 
 
 16. Where the guest, having packed his luggage for departure, locks his room, 
 gives notice thereof to a clerk and leaves the key of the room with such clerk at 
 the office, the innkeeper will be responsible for money stolen from a trunk, al- 
 though a notice may have been brought to the knowledge of the guest, requiring 
 money and valuables to be placed in a safe at the office, during his sojourn at the 
 inn. Id. 
 
 17. An innkeeper being responsible for the safe-keeping of such goods, pro- 
 perty and money in packages, as the guest brings with him to the inn, can right- 
 fully require permission to take the actual custody of money, jewels and goods 
 of special value, not required by the guest for his daily use and convenience, and 
 to place them in such safe-depository within the inn as he may provide. Id. 
 
 18. An innkeeper can set up no excuse for the loss of his guest's baggage, 
 except the act of God, the act of public enemies or the guest's own negligence. 
 Cheesbrough v. Taylor, 0. S. ix. 435. 
 
 19. Where the guest at a hotel delivered his baggage to an express agent, who 
 delivered it at the hotel, and the delivery at the hotel Was admitted by the inn- 
 keeper, and the guest subsequently left the hotel under the belief that his baggage 
 was accompanying him, but it subsequently turned out that one trunk did not 
 leave with him, and the guest, intending to return in a few days, made at that 
 time no inquiry about the lost trunk, and did not return for five or six weeks, 
 and then for the first time demanded his trunk, and made known to the inn- 
 keeper its loss, who made diligent eflx>rts to recover it by advertisement and in- 
 quiry : held, that this Avas not such negligence on the part of the guest as to 
 excuse the liability of the innkeeper in his capacity as such. Id. 
 
 20. Requirements of license to make an innholder. Norcross v. Norcross, N. 
 S. vi. 565. 
 
 21. Liability of innkeepers. Id. 
 
 22. What is sufficient allegation that defendant was an innkeeper. Id. 
 
 23. Onus on innkeeper to Ijring loss within excepted cases. Id. 
 
 24. When relation of landlord and guest attaches, and how long it continues. 
 
 25. When his liability for goods attaches. Id. 
 
 26. A guest Is not relieved from all responsibility in respect to his goods on 
 entering an inn. He is bound to use reasonable care and prudence in respect to 
 their safety, so as not to expose them to unnecessary danger of loss. Mead v. 
 Amidon, N. S. viii. 507. 
 
 27. Where a guest, in compliance with notice from the innkeeper, deposited a 
 sealed package in the safe, and in answer to an inquiry as to its contents, merely 
 said, "money;" the innlieeper held liable only for an amount sufficient for 
 
 , travelling expenses. Wilkins v. Earle, N. S. iv.' 742. 
 , 28. Is liable as an insurer, for property of a guest destroyed by fire in a barn. 
 Eulett T. Swift, N. S. iv. 187. 
 
 29. Party hiring room for a ball are not " guests," so as to make innkeeper 
 liable for loss of their property. Hohhs v. Carter, N. S. iii. 183. 
 
 30. May furnish liquor to his own household as any other head of n family. 
 State V. Jones, N. S. vii. 189. 
 
 INSANITY. 
 
 1. The burden of proof in cases of insanity ; subject discussed. N, S. ix. 
 201, 329. 
 ' 2. The plea of; the subject discussed. O. S. iv. 705. 
 
 3. A witness who had been an acquaintance of the party, may give his opinion 
 as to his sanity. Florey's Ex'rs v. Florey, O. S. iii. 55. 
 
 4. An insane delusion that the principal legatee is testator's son. voids the 
 will. Id. 56, 
 
INSANITY— INSOLVENCY. 535 
 
 5. Opinions of witnesses not experts cannot be received on questions of sanity. 
 State V. Jones, N. S. xi. 661. 
 
 6. All symptoms and all tests of mental disease are questions of fact for the 
 jury. Id. 
 
 7. Leading article on unsolved problems of the law as embraced in mental 
 alienation. N. S. i. 513. 
 
 8. Notices of the speeches of Thomas G. C. Davis and Hon. M. Eussel Thayer, 
 in criminal cases defended by them, and comments on. 0. S. vi. 448. 
 
 9. Insanity of prisoner; evidenceof may be given to the jury, although against 
 his consent. State v. Patton, 0. S. iii. 552. 
 
 10. Insanity at time of committing suicide. See Inbukancb. 
 
 11. As a defence in trial for the murder of Richard Carter by Thomas "Wash- 
 ington Smith. Charge of Judge Aluson, 0. S. vi. 257. 
 
 12. Evidence of hereditary taint is corroborative of direct proof. Smith v. 
 Kramer, 0. S. i. 353. 
 
 13. The test in insanity is the power or capacity of a prisoner to distinguish 
 between right and Avrong in reference to the particular act in question. Common- 
 wealth V. Freeth, 0. S. vi. 400. 
 
 14. If the prisoner labors under partial insanity, hallucination or delusion, 
 but, nevertheless, did understand the nature of his act, and knew that it was 
 criminal, and had sufficient mental power to apply that knowledge to his own 
 case, and if he had sufficient memory to recollect his relations to and with others, 
 and that the act committed was against justice and right, and a violation of the 
 dictates of duty, he is responsible. Per Ludlow, J. Id. ' 
 
 15. Whether there is such a disease as dipsomania and whether a respondent 
 had that disease are questions of fact for the jury. State v. Pike, N. S. xi. 233. 
 
 16. Will made by lunatic daring lucid intervals, evidence may be given of his 
 instructions to draw a different will before he was found lunatic. Titlow v. Titlow, 
 'S. S. vii. 319. 
 
 17. Application of separate estate made for insane wife. Davenport v. Daveni- 
 port, N. S. iii. 63. 
 
 18. Ratification of deed made during insanity. Bond v. Bond, N. S. iii. 507. 
 
 19. On allegation of third party that libellant for divorce is insane, the court 
 may appoint a guardian ad litem. Denny v. Denny, N. S. iv. 311. 
 
 20. Onus is on defendant alleging insanity. State v. McCoy., N. S. iv. 120. 
 
 21. Such nominal partnership cannot be put into insolvency. Whittenton v. 
 Mills, N. S. iii. 184. 
 
 22. The prosecution are not required to put in evidence of sanity before the 
 defence has put in evidence to the contrary condition. People v. Garbutt, N. S. 
 vii. 554. 
 
 23. Mental unsoundness as affecting testamentary capacity j subject discussed. 
 N. S. iii. 3S5. 
 
 24. Senile dementia ; subject discussed. Id. 
 
 25. The sanity of tlie testator and the regularity of the signatures are branches 
 of the due execution of the will. Thornton v. Thornton, N. S. vi. 341. 
 
 26. Condition in life policy, that in case insured shall die by his own hand, 
 &c., the policy shall be void, does not include suicide during insanity. Easter- 
 brook v. Ins. Co., N. S. vii. 445. 
 
 27. In a criminal case, where insanity is set up as a defence, evidence that a 
 brother has become insane from some cause, is admissible. Id. 
 
 28. Gross inequality is entitled to weight as evidence of testamentary incapa- 
 city, but is not sufficient to invalidate a will. Kevill v. Kevill, N. S. vi. 79. 
 
 29. Upon an indictment for murder, where the defence is insanity, the jury 
 must acquit if they entertain a reasonable doubt as to soundness of mind of 
 the prisoner at the time of homicide. Stevens v. State of Indiana, N. S. ix. 530. 
 
 INSOLVENCY. „ , 
 
 1. State insolvent laws have no extra-territorial operation. Bawley v. Hunt, 
 
 N. S. viii. 546. , . ., ,^ r j 
 
 2. Sale of his property by insolvent is not conclusive evidence ot traud. 
 Loeschigh v. Bridge, N. S. iv. 185. 
 
 3. Executor may recover back a claim where the estate appears insolvent. 
 Richards V. NiqlUingale,N. S.iv. 50\. j r v u c 
 
 4. A general assignment by an insolvent debtor, though made tor the benelit 
 of all his creditors, is an act of bankruptcy. Porry v. Langly, N. S. vii. 429. 
 
536 INSOLVENCY. 
 
 5. Purchaser from insolvent debtor, with knowledge of intention to defraud 
 creditor, is liable for such money as is diverted from creditor. Clements v. Moore, 
 N. S. vii. 378. 
 
 6. The administrator of the husband is not entitled to dispossess the wife by 
 showing a decree of insolvency. Leavett v. Leavett, N. S. vii. 253; 
 
 7. An insolvent's bond is in legal proceedings, and need not be stamped. 
 McGovern v. Hosback, N. S. vii. 64. 
 
 8. Eeceipt of goods by insolvent, with design not to pay for them, will avoid 
 the sale. Pike v. Wieting, N. S. vii. 574. 
 
 9. Any person imprisoned upon an execution to enforce a decree of alimony, 
 is within the Insolvent Act of New Hampshire. Shannon's Case, N. S. ix. 512. 
 
 10. Insolvency, as used in the Bankrupt Act, means inability to pay his debts 
 as they come due. Tonf v. Martin, N. S. xi. 124. 
 
 11. If an insolvent debtor take notes payable to his wife with intent to del.ny 
 his creditors, the notes will be treated as an assignment to his wife and fraudulent 
 as to creditors. Reppy v. Reppij, N. S. x. 65. 
 
 12. Vendors are entitled to pro rat^ distribution out of insolvent's estate. Pat- 
 ten's Appeal, N. S. iii. 573. 
 
 13. Insolvency of vendee at the time of purchase is not sufficient evidence of 
 fraud to set aside sale of poods and enable the vendor to replevy. Rodman v. 
 Thalhamer, N. S. xiv. 199. 
 
 14. The doctrine of insolvency alone rescinding a sale does not obtain in 
 Pennsylvania as it does in New York. Id. ' 
 
 15. The claim for dividends improperly declared by an insolvent belongs to 
 creditors, and not to the receiver. Butterworth v. O'Brien, N. S. iii. 60. 
 
 16. The surplus estate of an insolvent partner is to be applied to paying joint 
 debts. Thomas v. Minot, N. S. iii. 185. 
 
 17. The Bankrupt Act does not absolutely and totally suspend state insolvent 
 laws. Hawkins's Appeal, N. S. viii. 205. 
 
 18. Special partner cannot claim as a creditor of an insolvent firm of which 
 he was a member. Dunning's Appeal, N. S. iii. 312. 
 
 19. One who dies insolvent can make no disposition of a life insurance policy 
 if he leaves neither widow nor child. Hathaway v. Sherman, N. S. xiii. 260. 
 
 20. To entitle a poor debtor to chancery of his bond the justices must have 
 jurisdiction over his disclosure. Hackett v. Lane, N. S. xiii. 123. 
 
 21. The only bars to an action on the bond are payment of debts, surrender of 
 debtor or disclosure. Id. 
 
 22. A poor debtor's bond, not according to statute in its approval, is good only 
 at common law. Smith v. Brown, N. S. xiii. 123. 
 
 I 23. Discharge under insolvent law.S no bar to an action by citizen of another 
 
 state, who has not proved his claim. Kdly v. Drury, N. S. v. 127. 
 
 24. Discharge granted, held void, where petitioner's affidavit did not follow 
 the statute. Merry, Adm'r, v. Sweet, N. S. v. 127. 
 
 25. When judge no authority to grant discharge in New York. Id. 
 
 , 26. The debtor must strictly comply with provisions of law and keep proceed- 
 
 ings in motion. Bartholomew v. Bartholomew, N. S. v. 380. 
 
 27. Sale by, of whole stock, upon credit, not necessarily fraudulent. Scheit- 
 lin V. Stme, N. S. v. 188. 
 
 28. Discharge is a bar to recovery of damages for conversion of goods. Bick- 
 fordw. Barnard, N. S. iv. 313. 
 
 29. In distribution of estate, a debt not yet due by insolvent cannot be set off 
 against one due him. Bank's Appeal, N. "S. iv. 637. 
 
 30. A debtor, upon assigning his property in trust for the benefit of creditors, 
 parts with all control of the property assigned, and appoints the assignees his 
 trustees, to apply the proceeds as directed in the assignment ; but they do not 
 become his agents in such a sense as to have authority to make any new contract 
 or promise binding upon him, or to make a payment upon any of his debts, 
 which shall be equivalent to a new and express promise by him. Pickett v. 
 King, N. S. i. 236. 
 
 31. The simple omission of a particular debt in a petition for a discharge as 
 an insolvent, will not vitiate the discharge. Hall v. Robbins, N. S. xi. 266. 
 
 32. The record of an insolvent's discharge in Massachusetts must be held con- 
 clusive in New York. Id. 
 
INSOLVENCY— INSPECTION OF MACHINERY. 537 
 
 ■33. When discharge under insolvent laws of one state may be pleaded in bar 
 of an action by citissen of another state. Gilman v. Lockwogd, N. S vi. 632. 
 
 3i, Action for non-delivery of machine whereby the plaintiff was deprived of 
 gains and profits, and his whole business and trade ruined, and himself forced 
 into insolvency, cannot be maintained after vesting order in insolvency, because 
 the right of action passes to the assignee. Stanton v. Collier, 0. S. iii. 126. 
 
 35. A discharge under the insolvent laws of one state will not discharge a debt to 
 a citizen of another state, unless the latter has voluntarily become a party to the 
 proceedings, and thus given the court jurisdiction. Baldwin v. Hale, IS. S. iii. 462. 
 
 36. Nature and effect of a discharge under a state insolvent law. Note lo 
 Baldwin V. Hale, N. S. iii. 469. 
 
 37. Attachment by creditor of an insolvent's property in another state. Dehon 
 T. Foster, N. S. iii. M6. 
 
 38. New promise to pay made before discharge is valid. Lerow v. Wilmarth, 
 N. S. ill. 698. 
 
 39. Plea of discharge. Haggerty v. Amory, N. S. iii. 698. 
 
 40. Certificate of discharge no bar to action by foreign corporation against 
 payee of a note indorsed to them in blank before maturity. Producers' Bank v. 
 Famum, N.' S. ii. 443. 
 
 41. A father, acting in good faith, may make a valid gift to his minor son of 
 his time and future earnings, although insolvent at the time. Atwood v. Holcomb, 
 N. S. xii. 715. 
 
 42. A state cannot by legislative act appropriate the assets of an insolvent 
 hank to the injury of other creditors. Barings v. Dabney, N. S. xiii. 590. 
 
 43. Such an act would be repugnant to that clause of the constitution prohi- 
 biting a law impairing the obligation of contracts. Id. 
 
 44. Insolvent laws, ex-territorial effect of. Fessenden v. Willeij, N. S. i. 56. 
 
 45. A certificate of discharge under tlie insolvent laws is no bar to an action 
 upon a promissory note, indorsed to a citizen of another state, before the com- 
 mencement of the proceedings in insolvency, although not indorsed until after it 
 became due. Id. 
 
 46. Ex-territorial operation of insolvent laws. State insolvent laws have no 
 force beyond the limits of the state, except such as may be given them by comity. 
 But where a contract was made between parties resident in a state, in the shape 
 of a promissory note, on which a judgment was obtained in the same state by the 
 indorsees against the maker, which judgment was sued on in the United States 
 court for another state by the same plaintiffs, who are citizens of the last-men- 
 tioned state, and a judgment was rendered thereon, and afterwards the defendant 
 was discharged under the insolvent laws of the state of the contract, the discharge 
 mav be pleaded in bar of an action upon the last judgment. Davidson v. Smith, 
 O. "S. ix. 217. 
 
 47. A discharge of a debtor under the insolvent laws of Massachusetts will 
 not bar an action in the courts of Maine, instituted by a citizen of Maine, against 
 such debtor who resides in Massachusetts, although the contract was made and 
 by its terms to be performed in Massachusetts. Fetch v. Bagbee, 0. S. ix. 104. 
 
 48. The indorsementof a negotiable note is anew contract between the parties; 
 and where such note was made in Massachusetts, by a citizen of that state, ami 
 payable to another citizen of such state, "at any bank in Boston," and by him 
 indorsed to a citizen of Maine, before maturity and before proceedings in insol- 
 vencv, the rights of such indorsee are not affected by a discharge of the maker 
 in Massachusetts, under the insolvent laws of that state. Id. 
 
 49. It is citizenship, and not place of making or of performance, that deter- 
 mines the legal rights of the parties. Id. 
 
 50. An assignment of such debtor's property by the officers of the law of 
 Massachusetts, under the provisions of the Insolvency Act, will not operate upon 
 'debts or property in Maine, so as to defeat the attachment of a creditor who 
 is a citizen of Maine, made subsequently to such assignment. Id. 
 
 INSPECTION LAWS. 
 
 In prosecution for violation of inspection laws, the state must show more than 
 
 a sale of the liquor, and must give some evidence in support of the negative 
 
 averment. Cheadle v. State, 0. S. iv. 634, 
 INSPECTION OF MACHINERY. See Paiiunt. 
 
538 INSURANCE. 
 
 INSURANCE. 
 
 I. Of Insurable Interest. 
 
 1. Policies of insurance are not deemed, in their nature, incidents to the pro- 
 perty insured, apd do not cover any interest which a person other than the in- 
 sured may have in the property, as heir, grantee, mortgagee or creditor, unless 
 there be a valid assignment of the policy. Wyman v. Prosser, N. S. i. 700. 
 
 2. Where an insurance has been effected in the name of one "for the benefit 
 of whom it may concern," and he abandons, the other parlies interested, even if 
 he is to be considered prima facie their agent for that purpose, may, where they 
 have not in fact concurred, disavow the agency within a reasonable time, eillier 
 expressly or by their acts, and thus repudiate the abandonment. The taking 
 possession and sale of a vessel by a mortgagee whose interest was insured under 
 such general words, after an abandonment by the mortgagor who was the nominal 
 insurer, but before acceptance thereof, held, to be dissent from the abandonment. 
 Marine. Dock Sf Mut. Ins. Co. v. Goodman, 0. S. iv. 481. 
 
 3. One having an interest in the continuance of the life of another, as his 
 creditor, may insure the life of the debtor, and the contract for that purpose will 
 be valid. Eawls v. American Life Ins. Co., N. S. i. 636. 
 
 4. A surety has an insurable interest. Powell v. Ins. Co., 0. S. i. 110, 
 
 5. What risks are insurable. See note to Id. 114. 
 
 6. By trustee to whom cestui que trust is indebted, for benefit of trustee's 
 creditor. Ins. Co. v. Chase, N. S. vii. 122. 
 
 7. By an executor in his own name, on the property of his testator, enures to 
 benefit of the estate. Colburn v. Lansing, N. S. vi. 123. 
 
 8. In life insurance it is enough that the party effecting the policy has an in- 
 surable interest at its inception. Bawls v. American Ins. Co., N. S. iii. 167. 
 
 9. Amount of valued policy at extraordinary rate recovered, notwithstanding 
 it greatly exceeded the actual loss. Delano v. American Ins. do., N. S. iv. 124. 
 
 10. Insurable interest — construction of statements as to titlcj made on the 
 application for insurance — parol contradiction of the application— termination of 
 insurable interest under agreement to purchase. Birmingham v. Ins. Co., N. S. 
 iv. 314. 
 
 11. A consignee of goods may insure them in his own name, and in the event 
 of loss recover the full amount of insurance, and after satisfying his own claim, 
 hold the balance as trustee for the owner. Hough v. Ins. Co., N. S. xii. 324. 
 
 12. Insurance effected in the name of one of two owners of goods, upon the 
 representation of an agent that such is correct, may be recovered in case of loss, 
 by a suit in the name of the party to whom the policy is issued. Manhattan Ins. 
 Co. v. Webster, N. S. viii. 757. 
 
 13. The rule of the common law as to the right to insure, where the insured 
 has no interest, discussed. Note to Eawls v. Ins. Co. , N. S. iii. 178. 
 
 14. One partner cannot, in his own name, and for his own benefit, insure the 
 interest of his copartner, even though such may have been the intention of both 
 the insurer and insured. Ins. Co. v. Ball, N. S. iii. 417. 
 
 15. By consignee or commission merchant in his own name. Note to Ins. Co, 
 v. Loney, N. S. iii. 662. 
 
 16. Under an agreement to insure generally, an agent should obtain full insur- 
 ance if possible. Beardsley v. Davis, N. S. viii. 378. 
 
 17. The assignee of a payee, who had an insurable interest, is entitled to 
 recover for a loss. Franklin v. National Ins. Co., N. S. viii. 380. 
 
 18. Trustees of railroad company insuring all property belonging to said com- 
 pany cover a dredge-boat belonging to company attached to wharf at railroad 
 terminus. Farmers', Spc, Co. v. Ins. Co., N. S. vii. 763. 
 
 II. Authority of Officers of Insurance Company to bind by Guaranty 
 OF another Company. 
 
 1 9. Though by the charter of an insurance company it is provided that " (Svery 
 contract, bargain, and other agreement," in execution of the powers of the com- 
 pany, " shall be in writing or print, under the corporate seal, and signed by the 
 president, or, in his absence or inability to serve, by the vice-president or other 
 officer, &c., and duly attested by the secretary or .other officer,-'' &c., a parol 
 agreement as to the terms on which a policy shall be issued, made by the presi- 
 dent, secretary, or other general agent of the company, may, nevertheless, be 
 
INSUKANCE. 539 
 
 enforced specifically in a court of equity, which, in case of a previous loss, will 
 be by a decree for the amount which would be duo upon a policy duly executed. 
 Constant v. Alleghenij Ins. Co., N. S. i. 116. 
 
 20. But a mere collateral agreement, which does not involve the execution of 
 a policy of insurance, is not within the scope of the general authority of an 
 officer or agent of such a corporation, and cannot be enforced. Id. 
 
 21. The plaintiff, through a broker, applied to the defendants for an insurance 
 on a boat for a definite amount, and was informed that " it would be taken." 
 The defendants subsequently sent to the broker their own policy for a part, and 
 the policies of three other companies for the residue, executed by an agent for 
 the latter companies. The broker, on receiving the policies, wrote, in the ab- 
 sence of his principals, to the defVjndants, to say that he doubted whether the 
 agency policies would be accepted, alleging as a reason that the particular agent 
 had not a good reputation for "settling losses," and added, "I don't know 
 whether it is your custom to guarantee the offices you insure in or not ; if you do 
 I may prevail on" the plaintiff "to hold the policies." The secretary of the 
 defendants, in reply, wrote: "In handing the policies" to the plaintiff, "you 
 can say that if the boat is not insured in offices satisfactory to him we will have 
 them cancelled ; but, though they are not reinsurances, yet in case of loss we 
 will feel ourselves bound for a satisfactory adjustment. We deem tlie companies 
 good, and if any parties can settle with them, we can." On the faith of this 
 letter the plaintiff closed the transaction. One of the substituted companies after- 
 wards became insolvent, and, a loss having occurred, a special action on the case 
 was brought against the defendants. Beld, that the secretary of the defendants 
 h.ad no general authority ; and if he had, his letter did not amount to this, but 
 only to an undertaking for u satisfactory determination of the amount of the 
 loss, and its apportionment between the insurers. Id. 
 
 m. Op Concealment and Misrepresentation of Facts. 
 
 22. Where there are false representations in regard to proof there is no waiver. 
 Taylor v. Roger Williams Ins. Co., N. S. xii. 258. 
 
 23. Representations to an insurer must, in order to bind, be made by the party, 
 or adopted by him. Harmony Co. v. Huzelhwst, N. S. ix. 451. 
 
 24. Where a series of questions are put to the insured, and fully answered, an 
 omission to state matter not called for by any general or specific question, is not 
 a concealment. Eawls v. American Ins. Co., N. S. iii. 167. 
 
 IV. Of the Policy. 
 
 25. Parol proof is not admissible to show that a policy of insurance does not 
 cover certain goods expressly mentioned. Hough v. Ins. Co., N. S. xii. 324. 
 
 26. Forfeiture of, to be construed strictly. North Berwick Co. v. Ins. Co., N. 
 S. vi. 187. 
 
 27. What will be regarded as a waiver of forfeiture. Id. 
 
 28. Answer to question on application for. Id. 
 
 29. Verbal contract to make out policy — intervening loss — evidence. Audubon 
 V. Excelsior Co., N. S. iv. 187. 
 
 30. Parol evidence to affect the language of a policy. 7ns. Co. v. Hall, N. S. 
 iii. 417. 
 
 .SI. Each policy is a distinct contract. Franklin Ins. Co. v. Brock, N. S. viii. 
 313. 
 
 32. But a mere collateral agreement, which does not involve the execution of 
 a policy of insurance, is not within the scope of the general authority of an 
 officer or agent of such a corporation, and cannot be enforced. Constant V.Alle- 
 gheny Ins. Co., N. S. i. 116. 
 
 33. Acknowledgment in policy not conclusive of receipt of premium. Sheldon 
 V. Atlantic Ins. Co., N. S. iii. 635. 
 
 34. An agreement in a policy of insurance, executed by a foreign insurance 
 company, that the insured waives the right to bring an action upon the policy 
 except in the courts of the state incorporating such company, is void, both as 
 against public policy and the statute of this state relating to foreign insurance 
 companies, of December 8th 1855, R. C, p. 884. Reichard v. Manhattan Life 
 Ins. Co.,N. S. i. 547. 
 
 35. A temporary insurance, effected without notice to the original insurer, but 
 not existincT at the time of the loss, will not invalidate the policy, Ohermeyer 
 v. Globe Ins. Co., N. S. viii. 380. 
 
540 INSURANCE. 
 
 36. A policj', together with the application, is prima facie evidence of the title 
 of the insured to the property embraced in the policy. Kansas Ins. Co. v. Berry, 
 N. S. xi. 60. J 
 
 37. The memoranda upon the margin of a policy are a part of the contract of 
 insurance. McLaughlin v. Atlantic Ins, Co., N. S. x 130. 
 
 3S. The issuing of a policy by an insolvent company is a good consideration 
 for a note given for the premium, if the insolvency was not known at the time. 
 Lester V. Webb, N. S. iii. 62. 
 V. Of the Assignment and Tbanspek of Policy, and herein op the Can- 
 cellation AND Withdrawal op Policy, and of the Effect op Trans- 
 ferring THE Property Insured. 
 
 39. Assignment of life-policies by debtor insolvent when insured in trust for 
 wife, void against creditor. Elliott's Executors' Appeal, N. S. v. 377. 
 
 40. An insurance company will be bound by a letter of its secretary stating 
 that the policy was cancelled. Columbia Insurance Co. v. Masonheimer, N. S. xiv. 
 522. 
 
 41. Policy of insurance to wife cannot be transferred so as to divest her in- 
 terest. Eadie v. SUmmon, N. S, iii. 568. 
 
 42. Where an undivided half of property, insured in the name of A., but pay- 
 able to 3., who has a mortgage on it, is afterwards purchased by B., and B. 
 enters into partnership with A., using said property, there is no need to transfer 
 the policy. Burbank ^ Son v. McCluer ^ Co. and Trustees, N. S. xiv. 645. 
 
 43. The creditors of the firm, in case of loss, would hold the fund on attach- 
 ment, in preference to creditors of either individual partner. Id. 
 
 44. An agreement to- insure for the benefit of a vendor and to assign policy 
 for his security, with subsequent insurance and no assignment, operates as 
 equitable assignment of money payable upon the policy in case of loss, but not 
 of policy, and therefore not within clause declaring the interest of insured is not 
 assignable without written consent. Cromwell v. Brooklyn Fire Ins. Co., N, S. 
 iii. 123. 
 
 45. The return of the premium is a pre-requisite to the right to terminate the 
 risk. Hathorn v. Germania Ins. Co. , N. S. ix. 385. 
 
 46. The sale by one member of all his interest in the partnership property 
 does not necessarily pass a policy. Kitis v. Insurance Co., N. S. ix. 515. ■ 
 
 47. Where a policy contained a clause that it should not be assigned without 
 insurers' consent, and it was so assigned, as collateral security for a lien, the 
 assured cannot recover in case of loss, although he afterward paid the lien. 
 Ferree v.' Oxford Ins. Co., N. S. xi. 197. 
 
 48. Where a policy contained a clause that it should be void in case of as- 
 signment, unless ratified by the company within thirty days, and after assign- 
 ment, but before the application for ratification reached the company, a loss 
 occurred, on a refusal by the directors to ratify the assignment, the assignee will 
 be entitled to a decree for the full amount his assignor could have recovered. 
 Boyntnn v. Farmers' Ins. Co., N. S. xi. 198. 
 
 49. Assignment of policy of life insurance for 800/., for the release of a debt 
 of 174/., held void, but to stand as a security for the latter amount with interest. 
 Stokoev. Cowan, N, S. i. 176. 
 
 50. A conveyance which equity will treat as a mortgage, does not terminate 
 the interest of the assured. Holbrooke v. The American Ins. Co., 0. S. i. 18. 
 
 51. Insurance made by a mortgagee, at the expense of the mortgagor, is sub- 
 sequent insurance by the mortgagor. Id, 
 
 52. The mortgagee has no claim in law or equity on the proceeds of a policy 
 effected by the mortgagor unless the policy has been assigned to him. Kansas 
 Ins. Co. V. Berry, N. S. xi. 60. 
 
 53. A mortgagor effects a policy of insurance against fire, which provides that 
 the insurers' liability should cease upon assignment of the policy without their 
 consent ; and that it should become void in case of the termination of the in- 
 terest of the insured in the subject of the insurance. Subsequently the mort- 
 gagor makes an assignment of all his title and interest in the policy to the mort- 
 gagee, in visual juxtaposition to the policy, though without the written consent 
 of the insurers, and a renewal is effected and premium therefor paid by the 
 mortgagee. Mortgagor then conveys tlie fee to the mortgagee. He'd, that the 
 court properly instructed the jury that if the existence of the assignment was 
 
INSUKANCE. 541 
 
 known to the assurers, the act of renewal included the consent required by the 
 policy. Held, however, furthermore, that the assignment to the mortgagee only 
 operated as an equitable transfer of the policy, and that the approval of the 
 assignment by the insurers did not convert his contract into a new one for the in- 
 dependent insurance of the mortgagee. Bilson v. The Manufacturers' Ins. Co., 
 S. vii. 661. 
 
 54. The transfer of the property to the mortgagee, so as to divest the mort- 
 gagor's (the plaintiff's) interest, has the same effect as if the conveyance had 
 been made to some third person other than the mortgagee, there being in both 
 cases a change of interest in the subject of the insurance, Grosvenor v. Atlantic 
 Mutual Ins. Co., 3 P. F. Smith 391, .ind State Mutual Ins. Co. a. Roberts, 7 
 Casey 445, 7 Am. Law Reg. 229, approved. Id. 
 
 55. A policy of insurance against fire, assigned as collateral security for a 
 mortgage, is liable to be avoided, in the hands of the mortgagee, by any subse- 
 quent breach of the conditions of the insurance by the owner of the property, 
 though the assignment may have been duly approved by the insurance company. 
 Slate :\IutuaI Ins. Co. v. Roberts, 0. S. vii. 229. 
 
 56. Where a policy so assigned, and duly approved, contained the usual provi- 
 sion, that "if the insured or his assigns should thereafter effect any other insur- 
 ance on the same property, and should not with all reasonable diligence give 
 notice thereof and have the same indorsed on the policy, or otherwise acknow- 
 ledged in writing, the policy should cease and be of no further effect," and the 
 mortgagor subsequently, without the kno^vledge of the mortgagee, effected 
 another insurance on the same property, which he neglected to give notice of, 
 it was held that the first insurance was thereby avoided, and that no recovery 
 could be had thereon by the mortgagee. Id. 
 
 57. By agreement between the insured and the directors of a mutual insurance 
 company, the risk may be terminated before the time mentioned in the policy. 
 Boland V. Whitinan, N. S. x. 666. 
 
 VI. Increasing the Risk, and what will amount to. 
 
 58. A premium above the usual rate is some evidence that a more than usual 
 risk was assumed. Franklin Ins. Co. v. Brock, N. S. viii. 313. 
 
 59. Increase of risk by making repairs will not prevent recovery on policy, 
 unless the loss was caused by such increased risk. Washington Ins. Co. v. Davi- 
 son, N. S. ix. 449. 
 
 60. What is not an increase of risk. North Berwick Co, v. Insurance Co., N. 
 S. VI. 187. 
 
 61. A clause in a policy providing " that it shall be void in case of double 
 insurance," will prevent the insured recovering for a loss, though he was ignor- 
 ant of such conditions at the time of obtaining additional insurance. Gee v. 
 Cheshire County Mutual Ins. Co., N. S. xiv. 706. 
 
 62. Qucere, whether a condition in a policy wnich speaks of an invalid contract 
 of insurance, is not void for repugnancy to the contract of indemnity of which 
 the policy is evidence ? Id. 
 
 63. Persons insuring in a mutual insurance company are associated in the 
 nature of special partners. Krugh v. Lijcoming Ins. Co., N. S. xiv. 757. 
 
 64. A supplement to an act incorporating an insurance company, by which tlie 
 company is authorized to have a lien on the property of the insured for the 
 amount due on a premium note, is valid. Id. 
 
 65. The Constitution of the United States or of Pennsylvania does not pre- 
 clude the waiver of a trial by jurv. Id. 
 
 66. Carriers of live stock are not insurers for accidents necessarily incident to 
 live stock in transportation ; they are -not liable. Louisville Railroad Co. v. 
 Hcxiger, N. S. xiii. 145. 
 
 67. Where insurer after loss has notice of a breach, and without refusing to 
 pay orders insured to furnish plans and specifications of buildings destroyed, ho 
 is estopped from making such defence. Webster v. P. Insurance Co., N. S. xiv. 
 320. 
 
 68. Stipulations as to matters affecting the risk itself (such as ownership) are 
 more strictly enforced in favor of the insurer, than those relating to the mode of 
 establishing a loss. Jlinman v. Hartford Fire Ins. Co., N. S. xiv. 321. 
 
 69. The knowledge of the true character of the assured's interest in the pro- 
 perty is material to the insurer in determining the nature of the risk. Id. 
 
 70. AVhere the policy stipulates for this, any misriJpresentation or concealment 
 of it renders the policy void. Id. 
 
542 INSURANCE. 
 
 71 The contract being entire, personal property covered by a policy on a 
 building shares the fate of the building. Hinman v. Hartford Fire Ins. Co., N. 
 S. xiv. 321. 
 
 72. An amendment will not be allowed, by which a note liable to be assessed 
 only for losses in one class of hazards is made liable for all losses. Sheldon v. 
 Adams, N. S. iii. 503. 
 
 YII. Of Warkanties. 
 
 73. The clause in a policy, that "nothing but a distinct specific agreement 
 clearly expressed and indorsed on the policy shall operate as a waiver of any 
 condition or warranty therein," has no reference to stipulations which are to he 
 performed after a loss occurs. Franklin Fire 2ns, Co. v. Chicago Ice Co., N. S. 
 xii. 58. 
 
 74. In a policy of assurance from New York to Quebec, during the ship's stay 
 there, and thence to the United Kingdom, the ship was warranted to sail from 
 Quebec on or about the 1st of -November, Held, that the policy covered the loss 
 after the 1st of November during the voyage between New Yorlt. BainesY. 
 Holland, 0. S. iii. 702. 
 
 VIII. Of the Powers of Agents and Officers of Companies. 
 
 75. Insurance company liable for representations as to its capital made by its 
 agent. , Fogg v. Griffin, N. S. i. 56. 
 
 76. Notwithstanding the limitation upon the power of agents, declared in the 
 policy in respect to waiving the forfeiture, the company is competent to invest 
 snch authority in any of its agents. The authority may be express, or it may 
 be implied from circumstances, but the burden of showing it, in either case, is 
 on the party claiming the benefit of its exercise. Union Mutual Life Ins. Co. v. 
 McMaien, N. S. xiii. 610. 
 
 77. An agent, having no authority to waive tlie forfeiture, acting in the inter- 
 est of the assured, received the unpaid part of a premium on a forfeited policy, 
 after the life insured had ended, for which he gave a receipt antedated, and for- 
 warded the money to the company, concealing the facts as to such payment. 
 Held, that the receiving of the money by the company, in ignorance of such 
 facts, was no ratification of the act of the agent in receiving the money. Id. 
 
 78. The fact that the company, on tendering back the money so received, 
 omitted to return certain notes given in part payment of premiums, but whicii 
 the forfeiture of the policy rendered uncollectable, will not afl^ect the rights of 
 the parties in a suit on the policy ; nor is the fact that the notes are payable to 
 order material, where they show on their face the consideration for which they 
 were given. Id. 
 
 79. When, before the expiration of time of proving loss, the insurer denies all 
 liability entirely upon other grounds, it is a waiver of the condition requiring 
 proofs of loss. Smith v. Amazon Ins. Co., N. S. xiii. 651. 
 
 80. Where the question in the application relating to the ownership of the 
 property was filled in by the agent of the insurer without asking the insured, 
 a mistake will be held the mistake of the insurer and cannot defeat the policy. 
 Id. 
 
 81. An unintentional mistake in the proofs of loss will not prevent a recovery 
 on the policy. Id. 
 
 82. Insurance companies who do business by agencies at a distance from their 
 principal place of business are responsible for the acts of the agent within the 
 general scope of the business intrusted to his care, and no limitations of his 
 authority will be binding on parties with whom he deals which are not brought 
 to their knowledge. Insurance Co. y. Wilkinson, N. S. xi. 485. 
 
 83. Hence, when these agents, in soliciting insurance, undertake to prepare 
 the application of the insured, or make any representations to the insured as to 
 the character or etfect of the statements of the application, they will be regarded, 
 in doing so, as the agents of the insurance companies, and not of the Insured. Id. 
 
 84. This principle is rendered necessary by the manner in which these agents 
 are sent over the country by such companies, and stimulated by them to exertions 
 in effecting insurance, which often lead to a disregard of the true principles of 
 insurance as well as fair dealing. Id. 
 
 85. In such cases the insurers cannot protect themselves under instructions to 
 their agents, that they are only agents for the purpose of receiving and trans- 
 mitting the application and the premium. LI. 
 
 86. Therefore, where the agent had inserted in the application for life insur- 
 
INSURANCE. 543 
 
 BTice a representation of the age of the mother of the assured at the time of her 
 death, which was untrue, but which the agent himself olitained from a thinl 
 person, and inserted without the assent of the assured, it was the act of the 
 companv, and not of the assured, and did not invalidate the policy. Insurance 
 Co. V. Wilkinson, N. S. xi. 485. 
 
 87. To permit verbal testimony to show how this vrns done by the agent does 
 not contradict the written contract, though the application was signed by the 
 party. It proceeds on the ground that it was not his statement, and that the 
 insurance company, by the acts of their agent in the matter, are estopped to set 
 up that it is the representation of the assured. Id. 
 
 88. A general agency for a life insurance company is like any other agency, 
 revocable at the will of either party. Ilijers v. A'. Ins. Co., N. S. ix. 82. 
 
 89. An insurance agent to receive and transmit applications is an agent to 
 receive and transmit notice. Lycoming Mut. Ins. Co. v. •Sailer, N. S. xi. 191. 
 
 90. Notice to the agent was notice to the insurer ; and by issuing the policy 
 the latter waived the condition. Ins. Co. v. Hall, N. S. iii. 417. 
 
 91. Powers of agents to vary risk and waive forfeiture. North Berwick Co. v. 
 Ins. Co., N. S. vi. 187. 
 
 92. A general agent may waive condition that no insurance shall be binding 
 till payment of premium. Sheldon v. Ins. Co., N. S. iii. 63.5. 
 
 93. Agent may waive condition in policy for cash payment of premium and 
 give credit. Boehen v. Ins. Co., N. S. vi. 318. 
 
 94. When credit will be inferred and policy valid. Id. 
 IX. Of Marine Insurance. 
 
 95. In an action upon a policy of insurance on a vessel for one year, com- 
 mencing the i-isk on the 27th May 1854, and "if at sea on the expiration of the 
 year, the risk to continue at a pro rati premium until her arrival at port of 
 destination," it was held, that the proper construction of such policy was that if 
 the vessel was, at the expiration of the year, in any port, or if then at sea upon 
 her return to a port, although it was an intermediate port to which she had re- 
 sorted for the purpose of the voyage, and not her home port or port of final 
 destination, the policy ceased to be effectual, and would not cover a loss subse- 
 quently occurring. Gookin v. New England Mutual Marine Insurance Co., 0. S. 
 viii. 362. 
 
 96. The vessel thus insured having gone to San Bias, and there obtained a 
 license to take in a cargo of Brazil wood at Ypala, where she arrived eight days 
 before the expiration of the year, and there remained actually engaged in taking 
 in her cargo for nine days, and while thus remaining there, after the expiration 
 of the year, was lost. It was held, that such vessel was not at sea at the expira- 
 tion of the year, and the insurers not liable for the loss. Id. 
 
 97. On marine insurance of cargo of wheat, where there was a sale of the cargo 
 at a reduced rate and transfer of part of the insurance, the cargo was subsequent- 
 Iv lost, and it was held, the purchaser entitled to the whole insurance. Ralli v. 
 7n.5. Co., N. S. i. 511. 
 
 98. Where there has been once a total loss by capture, it is a permanent total 
 loss, unless either the ship be actually restored to the possession of the owner or 
 they have the power of immediately taking possession before the abandonment. 
 This principle applied where ship captured by pirates, but recaptured and kept as 
 prize by a government vessel, after which owners abandoned, and then the ship, 
 while being brought home for adjudication, meeting with bad weather, had to bo 
 sold at an intermediate port by the prize-master. Deanv. Hornhij, 0. S. iii. 126. 
 
 99. A marine policy is to be construed according to the general and known 
 course of trade with regard to vessels of a similar character, with a similar cargo 
 and on a similar voyage to that insured. Mobile, 4~o., Ins. Co. v. McMillin, 0. S. 
 iii. 671. 
 
 100. A policy of insurance was made on a cargo of cotton shipped on a sea- 
 going steamer, the risk to commence at the port of Mobile, and to continue and 
 endure until the goods were safely landed at the port of New Orleans. The in- 
 strument was in the usual form and employed only the usual terms of a marino 
 policy. The vessel arrived in due time at her accustomed berth on the southern 
 shore of Lake Pontchartrain, which is well known to be the port of New Orleans 
 for vessels of such character and from whence goods are conveyed by railway to 
 the city itself. After she had discharged safely a portion of her cargo, an aoci- 
 
544 INSURANCE. 
 
 dental fire destroyed on the wharf so much as she had landed. Held, that the 
 risk under the policy terminated on a delivery at the wharf, and did not continue 
 until delivery to the consignee, or his agent ; that it was not necessary that the 
 goods should be landed at the place where it was usual for the consignee to re- 
 ceive and take charge of them, and that the insurers were therefore not liable. 
 MobUe, Src, Ins. Co. v. McMillin, 0. S. iii. 671. 
 
 101. In this case the policy was a valued one upon one hundred and ninety- 
 eight bales of cotton, valued at $50 a bale. Of these one hundred and thirty-four 
 hales had been landed, and been destroyed by the fire. Held, that the contract 
 was a severable one ; that the insurers would have been liable, if at all, only for 
 so many bales as were actually destroyed, and the insured CQuld not recover as 
 for a total loss. Id. 
 
 102. Insurance of steambont. Boat is stranded before the expiration of the 
 policy, but the expenses are incurred afterwards, insured entitled to recover the 
 whole loss. Powell v. Ins. Co., 0. S. i. 110. 
 
 103. A voyage that is insured, must be so conducted as not to change the risk 
 insured against. If the usual mode, or the agreed mode of conducting it be 
 changed, without a necessity arising from a danger insured against, the risk is 
 changed. Merchants' Ins. Co. v. Algeo, 0. S. vii. 608. 
 
 104. When a party gets Insurance on a voyage to be conducted in a prescribed 
 mode, he must be understood as stipulating that that mode is practicable and 
 shall be followed. If then the voyage in that mode is not practicable at a cer- 
 tain stage of water, he has no insurance when attempting it at that stage. Id. 
 
 105. The insured has no right to change the terms of the policy by choosing 
 to start at a time that makes the change necessary. A change from necessity 
 is one arising from a cause discovered after the commencement of the vovage. 
 Id. ' ■ 
 
 106. A warranty by the assured that the vessel shall be free from capture, 
 seizure, or detention, includes a capture by a cruiser of the so-called Confederate 
 States. DoU\. New England Ins. Co., N. S. iii. 315. 
 
 107. In such case the liability of the insurers is terminated by such capture, 
 so that they are not liable for the burning of the vessel immediately thereafter. 
 Id. 
 
 108. Conveyance and reconveyance of vessel by way of mortgage is not within 
 the terms of a policy against assignment of insured's interest. Hitchcock v. N. 
 
 W. Ins. Co., N. S. iii. 500. 
 
 109. The taking possession of a vessel by the United States for the purpose 
 of sending a cargo to Santiago, is not a capture within the clause of warranty 
 against capture from belligerents. Murray v. Harmony Fire find Marine Ins. Co., 
 N. S. X. 279. 
 
 110. Words are to be construed in a maritime jjolicy in their ordinary and 
 popular sense, unless by the usage of trade they have a different meaning. Cobb 
 V. Lime Rock Ins. Co., N. S. x. 604. 
 
 111. The construction of particular words in Boston will not affect a policy 
 upon a vessel made at Rockland, Maine. Id. 
 
 112. In a marine policy, where property is insured described as $6550 on 
 charter, $2650 on primage and also $1500 on property on board ship C. J. Pen- 
 nell, " at and from New York to San Francisco," the last phrase is not descrip- 
 tive of the property, but simply of the voyage. Melcher v. Ocean Ins. Co., N. 
 S. xi. 595. 
 
 113. And where the vessel is sailing under two charters, parol evidence is 
 admissible to prove which charter is insured. Id. 
 
 114. Cases of marine insurance discriminated. Sheldon v. 7ns. Co., N. S. iii. 
 635. 
 
 115. A marine policy excepting loss from bursting of boilers, but covering 
 those occurring subsequent to and in consequence thereof, does not cover a loss 
 of a vessel, where the bursting tore out the side of the vessel so that she sank in 
 five or ten minutes. Evans v. Columbian Ins. Co., N. S. x. 798. 
 
 116. Where goods are insured for a voyage there is no implied warranty on 
 the part of the insurers that the goods are seaworthy. Koebel v. Saunders, N. S. 
 iv. 113. 
 
 117. If a policy of insurance on a vessel expires while she is supposed to He 
 on a voyage, and a second policy for a different sum is taken, after the expira- 
 
INSURANCE. 545 
 
 tion of the first, there is, in this country, no rule of law which requires payment 
 of that policy under which the vessel sailed or was last heard from, in the 
 absence of proof of the time of loss. Clifford v. Insurance Co., N. S. iv. 594. 
 U8. It is a question of fact for the jury to determine when a presumption of 
 loss arises. So also, in case of loss, tlie time it occurred. Id. 
 
 119. Time policy on vessel— extension clause — portof destination. Walesy. 
 Insurance Co., N. S. iv. .313. 
 
 120. When a^jortion of the subjects of a civil government have rebelled, and 
 the rebellion is of such magnitude that the military and naval forces have been 
 called out to suppress it, the fact that such rebels are robbers on the land, and 
 pirates on the sea, does not preclude them from being regarded as belligerents. 
 The Golden Rocket, N. S. iv. 27. 
 
 121. The seizure and destruction of a merchant vessel by such rebels, on the 
 high seas, is within the terms of a warranty in the margin of a policy of insur- 
 ance, by which the risk of " capture, seizure, or detention," is excepted from 
 the perils insured against. Id. 
 
 122. Taking of a vessel by a privateer under the flag of the so-called Confed- 
 erate States, is a capture within the exceptions of the policy, Fijield v. Insur- 
 ance Co., N. S. .iv. 255. 
 
 123. When a steamer is insured, while navigating the western rivers, there is 
 a warranty implied that the subject insured is a vessel of this description, and 
 will continue so during the existence of the policy. Baker v. Central Ins. Co., 
 N. S. vii. 628. 
 
 124. If the owners subsequently transfer the machinery and wheels of the 
 boat to another vessel, with the intention to abandon the hull for &\\ purposes of 
 navigation, the hull is no longer at the risk of the underwriter. Id. 
 
 125. In time-policies the mere intention to deviate does not avoid the policy. 
 Beams v. Insurance Co., N, S. vii. 254. 
 
 126. Specific and floating policies — division of loss between. Merrick v. In- 
 surance Co., N. S. vii. 314. 
 
 127. Taken by Confederate vessel. of war was a capture within the warranty 
 of the policy. Mauran v. Insurance Co., N. S. vii. 444. 
 
 128. Insurers must pay. for temporary as well as permanent repairs, whera 
 made by their consent and for their benefit. Alexandre v. Insurance Co., N. S. 
 vii. 574. 
 
 129. Where a steamboat under a valued policy had been snagged and sunk in 
 a river in Alabama, and the underwriters, while refusing to accept an abandon- 
 ment, had the boat raised, taken to Mobile, and there repaired, but the expenses 
 of raising the boat had been greatly increased on account of misrepresentations 
 by the master as to her condition at the time, it was held, that the question of a 
 technical total loss was to be determined by deducting what would have been the 
 reasonable cost of raising the vessel, in addition to the cost of taking the vessel 
 to Mobile and repairing there, from the value of the vessel when the repairs 
 were completed. Before leaving, the master had dismantled her, without ne- 
 cessity. Held, also, that the cost of restoring the vessel to her former condi- 
 tion, in this respect, was not to be included in the computation. Marine Dock S;- 
 Mutual Ins. Co. v. Goodman, O. S. iv. 481. 
 
 130. The court considering the case to have been one only of partial loss, and 
 the boat having been sold by the mortgagee subsequently to the repairs, it was 
 held, that the underwriters were entitled to claim as against the insured for the 
 work done and materials furnished in and about raising, taking the boat to 
 Mobile, and there repairing her. Id. 
 
 131. An account in this case was directed to be taken as follows ; 1. The 
 underwriters to be allowed the reasonable (not the actual) cost of raising and 
 taking the boat to Mobile ; the reasonable cost of taking care of her till posses- 
 sion taken by the mortgagee ; the reasonable cost of repairs and any deductions 
 required by the policy. 2. The underwriters to be charged with two-thirds of 
 such cost of raising, taking to Mobile, and repairing. Id. 
 
 132. The insured, upon a partial loss, is to be allowed the reasonable cost of 
 taking the vessel to the place of repairing, though in the course of her voyage, 
 where the nature of the disaster is such that she has ceased to earn freight ox 
 passage-money. Id, 
 
 35 
 
546 INSURANCE. 
 
 133. Master's anthority rests entirely on necessity, and burden of proof is on 
 the assured. Stephenson v. Ins. Co., N. S. vii. 444. 
 
 134. Alleged copy of survey not made by order of a court of admiralty or 
 under oath, not evidence, though certified by American consul. Id. 
 
 135. The mortgagee of a ship to whom a policy is assigned in blank, is en- 
 titled to receive the money in case of loss, in preference to an attaching creditor. 
 7ns. Co. of Perm. v. Phcenix Ins. Co., N. S. xii. 788. 
 
 136. The transaction is an equitable transfer of the right to receive the money, 
 rather than an assignment of the policy. Id. 
 
 137. The condition against assignment in a marine policy is for the insurer's 
 benefit, and may be waived. Id. 
 
 138. The peril insured against must be sole proximate cause of the loss. Dyer 
 V. Ins. Co., N. S. vi. 250. 
 
 139. And loss must be dependent on the peril and its necessary and inevitable 
 effect. Id. 
 
 140. Sale of portion of cargo to pay for repairs not necessary result of peril 
 at sea. Id. 
 
 141. Insurers liable for amount paid for injury by collision. Blanchard v. 
 Ins. Co., N. S. vi. 508. 
 
 142. Damages in such case when counsel fees, agents' commissions, and 
 premiums for exchange may be included. Id- 
 
 143. Validity of policy, upon conveyance of vessel by insured and reconvey- 
 ance to him. Worthington v. Bearse, N. S. vi. 508. 
 
 144. Rule for estimating damages, in ease of partial loss, on policy made here 
 on goods in foreign country. Burgess v. Ins. Co., N. S. v. 511. ' 
 
 145. What insured may recover upon condemnation and sale of vessel in a 
 port of necessity. Graves v. Washington Ins. Co., N. S. vi. 511. 
 
 146. The issuing of a policy of insurance is not a transaction of commerce. 
 Paul V. Commonwealth of Virginia, N. S. ix. 109. 
 
 147. Action by executors on policy containing clause, that the insurance 
 should be void in case of suicide — pleadings thereunder. Moore v. Wolsey, 0. 
 S. iii. 700. 
 
 148. A custom that an insurer of money advanced on account of freight, is not 
 liable to a general average loss or contribution, is in derogation of the written 
 contract, and cannot be set up in a bar of an action on the policy. Mall v. Janson, 
 O. S. iii. 700. 
 
 149. An insurance company, authorized by its charter to invest its funds and 
 capital stock, as should be deemed best by the directors, for the safety of the 
 capital and interest of the stockholders, has no power to purchase upon credit 
 the promissory note of one insured by the company, and entitled to indemnity 
 for a loss, for the purpose of setting off such note against the claim. Strauss v. 
 Eagle Ins. Co. of Cincinnati, 0. S. iv. 629. 
 
 150. A policy on a steamboat against loss by fire covers a loss by fire caused 
 by collision. Germania Ins. Co. v. Sherlock, N. S. xiv. 584. 
 
 151. The assured cannot claim indemnity for a total loss without abandoning 
 the vessel to the underwriter. Globe Ins. Co. v. Sherlock, N. S. xiv. 584. 
 
 152. The rule that insurer is subrogated-to all the rights of assured, against 
 any person who caiised the injury, does not apply where loss resulted from neg- 
 ligence of the assured. Id. 
 
 153. If caused by a wilful or fraudulent act of assured, the same may be set 
 up as a defence to an action on the policy. Id. 
 
 1 54. But where a policy was under-written ' ' for whom it may concern, to be in- 
 sured lost or not lost, fifteen thousand dollars on property on board vessel or ves- 
 sels, steamboat or steamboats, or land carriage, at and from ports or places, to 
 ports or places, all sums at risk under this policy to be indorsed here upon and 
 valued at the sum indorsed ; premium such per cent, as shall be written against 
 each indorsement ;" and certain goods were lost by peril of the sea, while on 
 board the steamer Palmetto, from Philadelphia to Boston, previous to the 23d 
 of March 1858, no application being made to the insurers until the 24th of March 
 1858, to have tlie same indorsed on the policy, at which time it was publicly 
 known that the steamer Palmetto was lost, and the indorsement was then refused 
 upon the ground that the vessel was so lost, and was publicly known to be so ; it 
 was held that the insurer had never assumed the risk, and was therefore not lia- 
 ble to the assured, because, 1st, the policy was an insurance on property, and was 
 wholly wanting in any description of the kind of property which is to be the sub- 
 
INSURANCE. 547 
 
 jeet of tlie risk ; 23, because no ports are named from or to which it is to be 
 transported; 3d, because there is no limitation to a particular kind of vessels, 
 but the language extends to goods transported by steamboats, sailing vessels, 
 and land carnage ; 4th, because no time is named within which the policy is to 
 be limited ; and, oth, because no rate of premium is ascertained and fixed by the 
 policy. Hartshorn et al. v. Shoe and Leather Dealers' Ins, Co., O. S. ix, 184. 
 
 X. Of GEjfERAi AND Paeticular Average. 
 
 1.55. A separate valuation in a policy of insurance of each parcel, bale or 
 package of an article, in not equal to a separate insurance of each parcel, bale 
 or package, Newlin v. North America Ins. Co., O. S. i. 439. 
 
 1.56. Average contribution of insurer. See Hell v. .Tansen, iii, 700. 
 
 157. Owners of goods insured against perils of the seas, "free of particular 
 average," may recover as for a total loss, if there is an abandonment, though 
 some of the goods are brought into port, Waltersteitt v. Columbian Ins. Co., N. 
 S. X. 798. 
 
 158. What necessary to render property subject of general average. Dyer y. 
 Ins. Co., N. S. vi. 250. 
 
 159. What sale of part of cargo excluded from general average. Id. 
 
 XI. Of Aeandonmekt. 
 
 160. After an abandonment has been made but not agreed to, the taking pos- 
 session of and raising and l-epairihg the vessel by the underwriter, accompanied 
 however, by an express refusal to accept the abandonment, is no waiver of his 
 right to treat it as a case of partial loss, if it prove to be so, provided there be 
 not any assertion of title or act of ownership on his part. That the underwriter 
 must in such case repair and tender the vessel in a reasonable time, is not, it 
 would seem, necessary : Reynolds v. Ocean Ins. Co., 22 Pick. 171, so far dis- 
 agreed to. Marine Dock and Mutual Ins. Co. v. Goodman, 0, S. iv. 481. 
 
 161. The American doctrine of a technical total loss doubted. Id. 
 
 162. An insurer is liable for a total loss only where an abandonment has been 
 Bade and actually or constructively accepted, or where there has been in fact 
 an actual or technical total loss. The doctrine of some decisions, that he can be 
 made thus liable by reason of even the "highest probability" of an actual or 
 technical loss, without acceptance of an abandonment, held to be unsound. 
 Id. 
 
 163. Where an insurance company incorporated by the state of New York, 
 having their principal office in New York, and there executing policies of insur- 
 ance, which were transmitted to agents in Baltimore who had authority to receive 
 application for policies, and to receive and transmit notes for the premium, and 
 through whom the company paid losses to parties in Baltimore, it was held, that 
 the contract of insurance was a New York and not a Mai'yland contract. Wright 
 T. Sun Mutual Ins. Co. of New York, 0. S. vi. 485. 
 
 164. Where the policy contained this clause, "to add an additional premium 
 if by vessels rating lower than A 2," and the cargo was shipped in a schooner 
 rating lower than A 2, and no fixed sum as additional premium agreed upon, 
 held, that the assured, in case of loss, could recover the value agreed in the policy, 
 less such additional premium beyond the agreed per cent, as in the opinion of the 
 underwriters might be deemed adequate for the increased risk of a cargo shipped 
 in a vessel rating below A 2. Id. 
 
 1 65. An abandonment of the voyage insured and substitution of a new voyage 
 defeats the policy of insurance from the time of such abandonment, although 
 when the loss occurs the vessel is sailing in a track or course of the voyage 
 common both to the voyage described in the policy, and in the substituted voyage. 
 Merrill v. Boylston Fire Sf Marine Ins. Co., N. S. i. 342. 
 
 166. Such abandonment may occur after the vessel has commenced her speci- 
 fied voyage. Id. 
 
 167. The facts in the present case present a case of abandonment, and not one 
 of an intention to deviate, and the policy was therefore at once defeated when 
 the master of the ship abandoned the termini of the voyage described in the 
 policy, and sailed from Falmouth, bound to Antwerp, as her port of discharge. 
 
 id- , .■ • . 
 
 168. If the assured, before abandonment, either recovers the subject insured 
 
 or receives an indemnity for its loss, he cannot elect afterwards to abandon. 
 Murray v. Harmony F. ^ M. Ins. Co., N. S. x. 279. 
 
548 INSURANCE. 
 
 169. Insurers who have taken possession of goods abandoned at an interme- 
 diate port, on account of damage occurring from the fault of the carrier, cannot 
 hold the carrier liable on his engagement to deliver in good order and condition. 
 Propeller Mohawk, N. S. ix. 123.' 
 
 170. Notice of abandonment to support claim for constructive total loss must 
 state the damage to exceed half the value. McConochie v. Sun Ins. Co., N. S. 
 iii. 701. 
 
 171. Holding a vessel for an unreasonable time, is a constructive acceptance 
 of an abandonment. Copelin v. Insurance Co., N. S. ix. 450. 
 
 172. A mere notice of abandonment without actual abandonment, amounts to 
 nothing. Winter v. Delaware Mutual Safety Ins. Co., 0. S. ix. 304. 
 
 173. If the facts do not justify an abandonment, it is not binding upon the 
 underwriters or the assured. Id. 
 
 174. If the ship be prevented by a peril within the policy from proceeding on 
 her voyage, and be irreparably injured, and the voyage be thereby lost, it is a 
 total loss of ship, freight and cargo, provided no other ship can be procured to 
 carry on the cargo. Id. 
 
 175. The right to abandon does not always depend upon the amount of the 
 sea damage to a cargo, but upon the facts of the case, and they are for a jury. 
 Id. 
 
 176. If an abandonment is complete, the subsequent acts of the master cannot 
 deprive the assured of the benefits resulting from it. He is thenceforth the agent 
 of the underwriters, and, bound to use diligence, skill, and care toward the interest 
 of all concerned. Id. 
 
 117. Whenever a cargo may, on account of the Injuries from perils insured 
 against, be abandoned as for a total loss, memorandum articles stand upon the 
 same footing as others. Id. 
 XII. Of Insdrancb of Goods, Stock and Fixtttres. 
 
 178. Where insurance company pays- the loss occasioned by the fault of a 
 railroad, if the assured afterwards recovers damages from the railroad, he holds 
 them in trust for the insurers. Monmouth Co. v. Hutchinson, N. S. x. 348. 
 
 179. If the railroad company pays the damages, knowing the insured has 
 received them from the insurers, it is liable to a suit by the insurance company, 
 and a release by the insured would be no defence. Id. 
 
 180. In a valued policy, every shipment is a distinct insurance, to be determined 
 by the indorsement made at the time of application as to its terms. Schaefer v. 
 Baltimore Ins. Co.. N. S. x. 410. 
 
 181. Goods were insured as "groceries." The stock included spirituous liquors 
 kept for sale. A loss occurred, and an action being brought on the policy, the 
 insurer asked the court to charge that, since the Prohibitory Liquor Law, the 
 term " groceries " would not include liquors. The question whether the liquors 
 were insured under this term was properly left to the jury. Niagara Ins. Co. v. 
 DeGaff, N. S. iii. 489. 
 
 182. Insurance on goods contained in a store, wall of the building fell, and 
 before the goods could be.removed fire broke out. Insurers liable for goods not 
 injured by the fall. Lewis v. Springfield Ins. Co., N. S. iii. 186. 
 
 183. Allowance for advanced premiums. - Chesbroughy. TT'njrAi, N. S. iii. 444. 
 
 184. If one partner insures in his own name only, and there is no evidence 
 to show that the insurance was for the partnership, or that the premium was 
 paid from the partnership funds, the policy will be held to cover his undivided 
 interest only. Insurance Co. v. Hall, N. S. iii. 417. 
 
 185. Where there is no provision in a policy upon the life of the assured that 
 it should be void in case of suicide, the court will not declare the policy void if 
 the party commit suicide. Home v. Insurance Co., 0. S. ix. 496. 
 
 186. A loss which arises from the efforts made to prevent goods from being 
 destroyed by fire must be borne by the assurer, and not by the insured, whether 
 the particular injury in question be produced by water used to extinguish the 
 flames, or results from dangers, such as theft, to which the property is exposed 
 in an attempt to remove it to a place of safety. Agnew v. Insurance Co., 0. S. 
 vii. 168. 
 
 187. One Moore was the general agent of the United Life, Pire and Marine 
 Insurance Company, and of the Kenton Insurance Company, in Louisville. 
 On the 15th of November 1867, S. & 0. obtained, through him, a policy of in- 
 
INSURANCE. 549 
 
 sumnce on stock and fixtures from the former company ; and on the day follow- 
 ing they obtained, also through him, a policy of insurance of the same property 
 from the latter company. A considerable portion of the goods was lost. The 
 first policy contained, inter alia, the following clauses : "If there is or hereafter 
 shall be made any further insurance on the property hereby insured, or any part 
 thereof, without being notified to this company, and its consent thereto written 
 hereon, then and in that case this policy shall be of no binding force on this com- 
 pany." " No agent of this company has power to change or modify the terms, 
 conditions and requirements of this policy * * * without express written au- 
 thority from the principal office at Covington." Moore had at the dates named no 
 such written authority; and the consent of the insurers to the second insurance 
 •was not written on the policy as required ; nor was it directly or indirectly 
 solicited ; nor was formal notice given to any of the company's officers or agents, • 
 either of the application for or the procuring of the second insurance. Van 
 Bones V. United Life. Ins. Co., N. S. x. 680. 
 
 Held: (1.) That the United Life, Fire and Marine Insurance Company had, 
 through Moore, constructive, if not actual, notice of the double insurance ; 
 that by the second insurance the first policy was not rendered absolutely void, 
 hut voidable at the option of the company ; and that good conscience required 
 that it should cancel the policy (by returning a proper proportion of the premiums 
 paid) within a reasonable time if a forfeiture was to be insisted on. Id. 
 
 (2.) That it was Moore's duty, when he obtained the second insurance for 
 O. & S. , to notify them that a compliance with their request might work a 
 forfeiture of the policy he had issued to them the day before, unless they obtained 
 the consent of the first company in the manner prescribed ; that although they 
 might be assumed to have known this themselves from their policy, every prin- 
 ciple Qf fair and open dealing demanded that he should call their attention to it ; 
 and that his inaction under the circumstances was calculated to mislead and 
 deceive them. Id. 
 
 (3.) That O. & S. had the right to expect that, if the company disapproved 
 of the conduct of its trusted agent in granting them the second insurance, it 
 would take steps to cancel the policy, or at least notify them of such disap- 
 proval ; that, because the company did not cancel the policy, and because, in 
 the absence of such notification, the assured were permitted to rely upon the 
 validity of the same until after the fire, the former had waived the forfeiture, and 
 were estopped from setting it up. And it was not an answer to these positions 
 to. say, what was the fact, that the company had actually no notice whatever in 
 the premises, since notice to their general agent was nbtice to them, and accord- 
 ingly, his conduct and default were theirs. Id. 
 
 (4.) That the clause limiting the power of the agent to change or modify the 
 contract did not affect the conclusion ; Ist. Because it was not pretended that 
 Moore attempted so to do ; and, 2d. Because the estoppel which prevented the 
 company's escaping its liability on the policy, did not depend upon whether or 
 not any such change or modification had been made. Id. 
 
 (5.) That for these reasons the company was liable for the insurance. Id. 
 
 188. Where the insured in a policy issued by a mutual insurance company is 
 discharged by a bankrupt or insolvent law from all his debts and contracts, and 
 among them his premium-note, the consideration for the policy fails, and the 
 company is not liable to make good a subsequent loss. Reynolds v. Insurance 
 Co., N. S. X. 715. 
 
 189. Insurance on the stock of a pork-house made in the name of the owners 
 of the establishment includes the pork, &c., of others, which is there on commis- 
 sion although in the printed conditions of the policy it is stated that " goods 
 held in trust or on commissions are to be insured as such, otherwise the policy 
 will not cover such property." Jackson v. Insurance Co., 0. S. ii. 374. 
 
 190. If that condition is substantially complied with, that is sufficient. Id. 
 
 191. The plaintifPs common carriers effected an insurance against fire with 
 defendant ; one of the conditions of the policy was, that " goods held in trust or 
 on commissibn are to be insured as such, otherwise the policy will not extend to 
 cover such property ;" 15,000Z. was declared to be insured on "goods, their (the 
 plaintiffs') own, and in trust as carriers," on certain premises therein named, and 
 the insurers were liable to pay, reinstate or make good, at their option, as to the 
 said assured, all damage or loss which the said assured shall suffer by fire on the 
 
550 INSURANCE. 
 
 property herein particularized, not exceeding on each item the sum hereinbefore 
 declared to be insured." Held, that the policy extended to cover the whole value 
 of any goods sent to plaintiff to be carried, and not merely the plaintifif's interest 
 as carriers. Held, further, that plaintiffs could recover the value of a package 
 of silk destroyed on the said premises, by fire, although it had not been declared 
 as required by the Carriers' Act, and therefore they would not be liable as car- 
 riers for its loss. London and Northwestern Railway Co. v. Glyn, 0. S. vii. 693. 
 XIII. Of Life Insdkance. 
 
 192. It is not necessary that the party holding a policy on the life of another 
 should have an insurable interest in such life, at the time of the death, to make 
 the policy valid, if it was valid in its inception. Rawls v. American Life Ins. Co. , 
 N. S. i. 636. 
 
 193. A life policy is not regarded as a mere contract of indemnity. Id. 
 
 194. A policy of assurance on the life of E. W. was subject to a condition 
 avoiding it on suicide, but provided that in case the policy should have been 
 assigned to other parties for a valuable consideration six calendar months before 
 the insured, it should remain in force to tlie extent of the beneficial interest 
 therein of the party to whom it should have been assigned. E. W. deposited the 
 policy with the plaintiff. The policy was accompanied by a letter, stating that 
 it was to be held ' ' as security, in case of death or otherwise, for any notes of hand 
 or bills of exchange you may have cashed for me." Upon a bill to obtain pay- 
 ment of the sums insured, it was held, the policy was duly assigned ; that the 
 security continued from the date of the deposit, notwithstanding the considera- 
 tion for it was fluctuating ; that the payment or withdrawal of the earlier bills 
 did not necessitate a fresh deposit, and that it was, and was intended to be, a 
 security for what was due on the current account at the death of E. W. or other- 
 wise. Jones v. Consolidated Investment and Assurance Co., 0. S. vii. 506. 
 
 195. Waiver of proof. Where defendants agreed to pay A. (the plaintiff) 
 $100 within sixty days after proof of death of B. : Held, "that the defendants 
 having received preliminary proofs and placed their refusal to pay on the ground 
 of plaintiff's want of interest, further proof of death was waived, and the sixty 
 days having elapsed, it was too late to raise that objection. Miller v. Eagle Life 
 Ins. Co., 0. S. v. 313. 
 
 196. The intervention of the late war was a sufScicnt excuse for the policy- 
 holder of a life insurance company for not paying his premiums as they accrued. 
 Hancock v. New York Life Ins. Co., N. S. xiii. 103. 
 
 1 97. Assignment of a life insurance policy never delivered is invalid. Trough's 
 Estate, N. S. xiv. 122. 
 
 198. In an action on a policy of life insurance, where there is no denial of the 
 execution of the policy, it need not be proved. C. F. Insurance Co. v. H. S. 
 Manufacturing Co., N. S. xiv. 460. 
 
 199. Where a life-policy is made and accepted, upon the expressed condition 
 that if the annual premium is not fully paid within the time specified, the policy 
 " shall be null and void, and wholly forfeited," the failure to pay the premiuin 
 avoids the policy. Union Mutual Life Insurance Co. y. McMdlen, N. S. xiii 
 610. 
 
 200. Where the policy also provides that no agent of the company, except the 
 president and secretary, can waive such forfeiture, authority conferred upon an 
 agent before the premiiims became due to collect them, does not impliedly invest 
 him with authority to waive the forfeiture. Id. 
 
 201. The opinion of a medical witness that a person was not worthy of insur- 
 ance in June, is not competent evidence in a suit on a policy issued in August of 
 the same year. Insurance Co. v. Mahone, N. S. xiv. 525. 
 
 202. The written opinions of a medical examiner and of the agent appointed 
 to examine risks, made at the time of application and appended to the proposals 
 for insurance, are competent evidence, under a stipulation that "all original pa- 
 pers filed in the case may be read in evidence." Id. 
 
 203. The opinion of the agent sent to examine the circumstances of the death 
 of the insured, that it would " be best for the company to pay," is not competent 
 evidence in a suit on the policy. Id. 
 
 204. A life-policy issued by a foreign company is not rendered void by the 
 neglect of the company to comply with the provisions of the Act of April 16th 
 1867, providing for the incorporation and regulation of insurance companies} 
 
INSUKANCE. 551 
 
 nor will such neglect, in an action brought against the company on the policy, 
 excuse the policy-holder from paving premiums according to tlie terriis of the 
 policy. Union Mutual Life Ins. Co. v. McMulJen, N. S. xiii. 610. 
 
 205. A policy is conditioned to be void in certain events, " except to the ex- 
 tent of any interest acquired therein by assignment for valuable consideration." 
 The insurer mortgages the policy, together with real estate ; afterwards the 
 policy is avoided under the condition. The society is compelled bythe mort- 
 gagee to pay him the policy, and it then files a bill to take his place as against 
 the other property. Held, that such a claim cannot be sustained. Solicitor's 
 Life Asmrance Societi/ v. Lamb, N. S. iii. 686. 
 
 206. The premium on a life insurance policy due on Sunday, is not to be paid 
 until Monday, even if assured dies on Sunday. Hammond v. American Ins. Co., 
 N. S. iii. 186. 
 
 207. A provision in a policy of life insurance that it shall be void if the 
 assured " shall die by his own hand," includes all kinds of voluntary self-de- 
 struction. If the assured commit suicide, comprehending the physical nature 
 and consequences of his act and intending to destroy his life, the policy is void, 
 though he may not have' been able to comprehend the moral nature oi' the act. 
 Nimiclc V. Insurance Co., ST. S. x. 101. 
 
 208. In an action on such a policy, the burden is first on the insurer to show 
 that the insured died by his own hand ; and this being done, it then rests, upon 
 the plaintiff to prove that the insured was of such insane mind that he did not 
 commit the act with the knowledge and intent that it should result in death. 
 Id. 
 
 209. The assured in a life policy, in reply to the question, had she ever had a 
 serious personal injury, answered no. She had, ten years before, fallen from a 
 tree. The criteria of a serious personal injury considered. Insurance Co. v. 
 
 Wilkinson, N. S. xi. 485. 
 
 210. This is not to be determined exclusively by the impressions of the matter 
 at the time, but its more or less prominent influence on the health, strength and 
 longevity of the party is to be taken into account, and the jury are to decide from 
 these and the nature of the injury whether it was so serious as to make its non- 
 disclosure avoid the policy. Id. 
 
 211. The following propositions, among others, in the law of evidence, de- 
 cided : — 
 
 (a.) Statements by the debtor made after the insurance is effected are not 
 admissible in evidence against the insured. 
 
 (6.) Experts cannot be examined as to the point whether a person who is in 
 the habitual use of intoxicating drinks can be regarded as an insurable subject. 
 
 (c.) When the defendant puts in issue in the pleadings, the good faith of the 
 author of a written statement upon which the policy is issued, it is proper for 
 the plaintiff to ask such person if his answers to questions contained in the state- 
 ment were made in good faith. Eawls v. American Ins. Co., N. S- !"• 167. 
 
 212. Where, in a policy of insurance upon life, the representation was made 
 that the insured was sober and temperate and in good health, if the representa- 
 tion was true at the time it was made, the subsequent habits of the insured Would 
 be no bar to a recovery upon the policy. Reichard v. Manhattan Life Insurance 
 Co., N. S. i. 547. 
 
 213. Where a creditor of F. had insured his life for a sum not exceeding his 
 debt, and before F.'s death action upon the debt was barred by the Statute of 
 Limitations, the insured was entitled to recover from the company. Ramis v. 
 American Ins. Co., N. S. iii. 167. 
 
 214. In such a case the debt still exists, and is not extinguished, as in the case 
 of payment. Id. 
 
 215. The liability of life insurance companies in cases of suicide — subject dis- 
 cusised. N. S. x. 673. 
 
 216. The rules of the defendant required the applicant for insurance to furnish 
 a reference to some third person, from whom information might be obtained re- 
 specting the health and habits of the person whose life was to be insured. Held, 
 that the statement of the third person was not a warranty. Rawls v. American 
 Ins. Co., N. S. iii. 167. 
 
 217. Whether life insurance is a contract of indemnity, discussed. Id. 
 
552 INSURANCE. 
 
 218. What is quarterly and what an annual policy. See Slieridan t. Insurance 
 Co., O. S. Tii. 510. 
 
 219. Suicide committed by a person who understood the nature of the act, 
 and intended to take his own life, though committed during insanity, avoids a 
 policy of life insurance, which provides that it shall be void if the assured shall 
 die by his own hand. Dean v. American Mutual Life Insurance Co., N. S. i- 690. 
 
 220. In applications for insurances on lives the statements of the assured 
 concerning his health or vital organs, are not understood or intended as warran- 
 ties. Horn V. Amicable Mutual Life Insuracce Co., N. S. xii. 466. 
 
 221. The applicant must state all that he knows bearing upon his health, and 
 any untrue statement or concealment ought to render the policy void. Id. 
 
 222. 'Waiver Of objection to proof of death. Miller \. Life Insurance Co., O. 
 S. V. 313. 
 
 XIV. AcTiow ON Policy. 
 
 223. In an action on a policy of insurance, dated Portland, by a resident of 
 Kew Hampshire, held, that the laws of the state of Maine must govern. Bailey 
 T. Rope Insurance Co., N. S. ix. 122. 
 
 224. Where, in an action of assumpsit against insurers, in a case of total des- 
 truction of a vessel by fire, the value being fixed in the policy and claimed in 
 the declaration, judgment was taken for want of a plea, the judgment was final 
 and a lien, though damages are not assessed. Sellers v. Burk, N. S. iv. 441. 
 
 225. Parol evidence is admissible to show that the description of property in- 
 sured annexed to a policy, though signed by the insured, was drawn up by the 
 agents of the insurer ; that they knew all about the property from verbal de- 
 scription by the insured, and from actual survey ; and that therefore omissions 
 and errors therein were those of such agents, and not of the insured ; notwith- 
 standing a provision that the description should be taken as a part thereof, and 
 as a warranty on the part of the insured, Bruner v. Howard Fire Insurance Co., 
 O. S. ii. 510. 
 
 226. To an action on a policy of insurance on life, which contained a proviso 
 that if the assured should " die by his own hand, or in consequence of a duel, or 
 by the hands of justice, or in the known violation of any law of the state, or of 
 the United States, the defendants pleaded that the deceased committed suicide by 
 drowning himself, and so died by his own hand. Beplication, that at the time 
 the deceased so committed suicide, &c., he was of unsound mind and wholly un- 
 conscious of the act. Held, good. Breastedr. Farmers' Loan Company, 0. S. ii. 3.^8. 
 
 227. Contained a clear engagment by the insured, that they would keep a 
 watchman in their mill through the hours of every night in the week ; which en- 
 gagement being broken, there could be no recovery on the policy. Glendale 
 Woollen Company v. Protection Ins. Co., 0. S. i. 568. 
 
 228. The maxim of " causa proxima non remote spec(a<7ir, " applied in insurance 
 cases. Insurance Co. v. Tweed, N. S. viii. 442. 
 
 229. Fraudulent representations as to the solvency of a company, made at the 
 time a note was given, is a defence. Boland v. Whitman, N. S. x. 666. 
 
 230. In a suit brought in assumpsit for breach of a contract between an insur- 
 ance agent and his company, by which it was agreed that he should receive a per- 
 
 J centage on all renewals of policies procured by him as long as such policies re- 
 main in force : Held, that the action may be sustained as upon a contra.ct indivisi- 
 ble, and testimony will be admitted to show the probable expectancy of the du- 
 ration of such policies. Ensworth v. New York Co., N. S. vii. 332. 
 
 231. A custom among insurance companies as to an agent's property in poli- 
 cies procured by him may be introduced to explain such contract. Id. 
 
 232. Plaintiff must aver an insurable interest in himself or one for whom he 
 acted. Freeman v. Fulton Ins. Co., N. S. ii. 631. 
 
 233. How far negligence of plaintiff is a defence on a policy. Johnson v. 
 Berkshire Ins. Co., N. S. ii. 379. 
 
 234. Evidence — preliminary proofs — waiver of — sufficiency of, a question for 
 the court. Commonwealth Ins. Co. v. Sennett et aL, N. S. ii. 311. 
 
 235. Where the policy allows insurer the option to rebuild but the municipal 
 authority will not permit it, the insured may recover for his full loss. Brady v. 
 N. W. Ins. Co., N. S. ii. 572. 
 
 236. Where defects in the proof of a loss are not made at the time, they will 
 be considered as waived. Taylor v, Eoger Williams Ins. Co., N. S. xii. 258. 
 
INSURANCE. 553 
 
 237. A witness whose knowledge of the custom as to the use of certain arti- 
 cles, is acquired in similar manufactories in other localities, is competent to 
 testify as to the usage of the business. 7ns. Co. v. McLaughlin, N. S. vi. 374. 
 
 238. Defendants must set up a condition in policy as a defence in their speci- 
 fications to avail themselves thereof. Di/er v. Ins. Co., N. S. vi. 250. 
 
 XV. Plea op Statute op Limitations. 
 
 239. A policy was issued by a New Jersey company to a citizen of Virginia 
 in 1860. Payment of subsequent premiums was prevented by the war. The 
 insured life terminated in 1863, and notice and proofs of that fact were made to 
 an agent of the company in Kentucky in 1872. Meld, (1) that the parties were 
 bound to give notice in a reasonable time ; (2) that the delay here was unrea- 
 sonable ; (3) that the Acts of Virginia suspending the Statute of Limitations in 
 certain cases did not apply to foreign debtors like this company ; (4) that the 
 Statute of Limitations must be held to have commenced to run within a reasona- 
 ble time (six months) after the termination of the war, and the policy not being 
 under seal was barred in six years by the laws of New Jersey, and in five by the 
 laws of Virginia, and therefore could not be recovered upon in Kentucky. 
 Spratley v. Ins. Co. N. S. xiv. 188. 
 
 240. The period of the Statute of Limitations is to be computed by excluding 
 the time of the war. Semmes v. Citi/ Fire Ins. Co., N. S. xi. 418. 
 
 XVL Construction op Policy and op Electing to Rebuild. 
 
 241. A building was insured for $3000 by A., and $2000 by B., in separate 
 policies, each of which contained a clause allowing the insurer the option of 
 rebuilding, and the building having been destroyed by fire, A. and B. served a 
 joint notice that they were prepared to rebuild. The building having been recon- 
 structed, the insured insisted that the contract had not been substantially com- 
 plied with, and brought an action on the policy against A., claiming to recover 
 the full amount of his original losS : iieW, that he could not recover. Morrell 
 V. Ins. Co. N. S. iii. 404. 
 
 242. After the election and notice, a contract to rebuild existed between the 
 parties, and if this is not fulfilled by the insurer, he is liable for the damages 
 sustained by the non-fulfilment of the contract, which may be more or less than 
 the amount insured. The action, consequently, should have been brought to 
 recover damages for breach of contract. Id. 
 
 243. It seems that the action might have been brought against both insurers 
 jointly or either separately. Id. 
 
 244. Effect of an election by company to rebuild under the clause in the policy 
 giving them that right. xVoie to Morrell v. Ins. Co., N. S. iii. 414. 
 
 245. The omission of a person whose life is insured to make any statement in 
 respect to any particular habit, not called for by any general or specific ques- 
 tion put to him, will not be such a concealment as to avoid the policy. It is suf- 
 ficient if he answers truly all the questions put to» him, without evasion or con- 
 cealment. Rawls V. American Life Ins. Co., N. S. i. 636. 
 
 246. Declaration on a policy of insurance against fire, which contained a con- 
 dition reserving to the company the right of reinstating the premises in preference 
 to the payment of claims. Plea, that defendants elected to reinstate the insured 
 premises, and were proceeding in the reinstating them, until the commissioners 
 of sewers caused them to be taken down as a structure in a dangerous condition ; 
 that such condition was not caused by the fire ; and that if the commissioners 
 had not caused the premises to be taken down, defendants would have restored 
 them to the condition they were in before the fire. On demurrer, HM, by 
 Lord Campbell, C. J., Crompton and Hill, JJ. (Eble, J., dissentient), that 
 defendants, having elected to reinstate the premises, were bound by such election, 
 and the plea showing performance to be impossible was no answer. Brown v. 
 Royal Insurance Society, O. S. viii. 235. 
 
 247. A clause in a policy of fire insurance, that the insurers should not be lia- 
 ble for a loss from an explosion of gunpowder on the premises. Greenwald v. 
 Insurance Co., O. S. vii. 282. 
 
 248. Where, to stay the spread of flames, a house already on fire is blown up 
 with gunpowder, there being no means of extinguishing fire by water in the town, 
 the insurers are liable. Bilson v. Manufacturers' Ins. Co., 0. S. vii. 661. _ ^ 
 
 249. Where the charter of a mutual insurance company provided that no in- 
 surance eflfectfid on any property should be valid unless the insured had a good 
 
554 INSUEANCE. 
 
 and perfect unincumbered title thereto, it appeared that at the time it was effected 
 there was outstanding a title to the property insured, in a third person, by virtue 
 of a mortgage of that property to him, it was held, that the insured had not " a 
 good and unincumbered title," within the meaning of the charter, and conse- 
 quently were precluded from a recovery. Warmer v. Middlesex Ins. Co., O. S. i. 
 569. 
 
 250. A perfect title imports one that is good, both in law and in equity. Id. 
 
 251. The conjtruction of clauses in fire policy respecting subsequent insurance 
 and termination of interest. Holbrook v. Ins. Co., 0. S. i. 18. 
 
 252. A contract of insurance made in another state on property situated in 
 New Jersey, is valid and will be enforced in New Jersey.. Columbia Fire Ins. 
 Co. V. Kinyon, N. S. xiii. 674. 
 
 253. Although it would be competent by legislation to invalidate in courts of 
 New Jersey an insurance contract made in good faith in another state on pro- 
 perty located in New Jersey, it would be so contrary to the comity which has 
 been observed between the states that such an intention will not be imputed to 
 the law-makers, unless the language used so clearly expresses that purpose as 
 to bear no other reasonable interpretation. Id. 
 
 254. The regulations of New Jersey insurance laws are not merely for the 
 purpose of revenue ; they impair the contract made in violation of them, so far 
 at least as concerns the right of the foreign corporation to sue upon it. Whether 
 public policy requires that the party insured shall be permitted to enforce the agree- 
 ment is not decided. Id. 
 
 255. The declaration is defective in that it does not show that when the assess- 
 ment was made upon the deposit note the defendant was a member of the com- 
 pany, and as such liable to assessment, nor does it show that the losses assessed 
 accrued while the defendant's policy was alive, or that the assessment was made 
 on the basis authorized by the corporation act. Id. 
 
 256. If the policy had expired, the defendant could not be held without al- 
 leging that the loss accrued before its expiration. If the policy was alive the 
 losses must have occurred while it was in force. Id. 
 
 257. A sale of decedent's property by the Orphans' Court is not such an 
 alienation as will avoid a policy. Farmers' Mut. Ins. Co. v. Graybill, N. S. 
 xiii. 710. 
 
 258. Suit on the policy should be in name of administrator to use of vendee, 
 where the sale was not confirmed before the loss. Id. 
 
 259. In an action on a life policy, where assured committed suicide, it is not 
 error for the court to charge, " If the assured was not conscious of the act he 
 was committing, but acted under an insane impulse, or if he was incapable of 
 exercising his judgment in consequence of his reasoning powers being over- 
 thrown," the defendants are liable. Am. Life Ins. Co. v. IseWs Adm'r, N. S. xiii. 
 711. 
 
 260. It is not error to refuse to charge that if the assured was conscious that 
 his death would follow the discharge of the pistol, there can be no recovery, 
 although he was laboring under mental depression or disturbance of mind. Id. 
 
 261. An assignee of a policy takes it subject to all the equities which attach 
 to it in the hands of the assured. Johnson v. Phcenix Ins. Co., N. S. xiii. 779. 
 
 262. If insurer assents to assignment, he cannot claim any set-off, in a suit by 
 the assignee, which he might have had against insured. Id. 
 
 263. Where, in a policy of insurance, the excepting clause was in these words, 
 " it is understood that this company is not liable for any breakage or derange- 
 ment of the engine, or bursting of the boiler, or any of the parts thereof, or for 
 the effect of fire connected with the operation of, or the repairs of the engine or 
 boiler, unless the damage be occasioned and the repairs rendered necessary by 
 the stranding or sinking of the vessel, after her engines and boilers shall have 
 been put in successful operation," it was held that the purpose of the exception 
 was only to relieve the underwriters from liability to indemnify the assured for 
 broken or deranged machinery, and not to exempt them from the obligations to 
 pay for a total loss, even though that loss could be traced back to the breakage 
 of the machinery. Western Ins. Co. v. Cropper, 0. S. vii. 237. 
 
 264. A policy of Insurance contained a clause that no action should be brought 
 upon it unless within twelve months after the loss had occurred. Such a limita- 
 tion must rest upon the tacit condition that the insurer should be accessible to 
 the service of process. Insurance Co. v. Hall, N. S. iii. 417. 
 
INSURANCE. 555 
 
 265. Where it is agreed in a policy tliat tlie aggregate amount insureJ in this 
 and other companies shall not exceed two-thirds of the estimated cash value, it 
 is taken to mean the value at the time of the insurance. Elliott v. Lijcoming Ins. 
 Co., N. S. X. 745. 
 
 266. After receiving notice of over-insurance, if a company makes and col- 
 lects assessments, it is estopped from setting up a forfeiture. Id. 
 
 267. A policy of insurance containing a clause that if the " title of the pro- 
 perty is transferred or changed," or "if the policy is assigned," the policy shall 
 be void, is not avoided by the bankruptcy of the assured and the assignment of 
 his estate to an assignee in bankruptcy, and the assignee may recover oa it in 
 case of a loss. Starkweather v. Cleveland Ins. Co., N. S. x. 333. 
 
 268. Where the policy refers to the application, "for a more full and par- 
 ticular description," the application is made a part of the contract. Shoemaker 
 V. Glen's Falls Ins. Co., N. S. xi. 130. 
 
 269. A condition that if gunpowder was kept without written permission in 
 policy, the policy should be void, is not broken if the agent at the time of taking 
 the insurance knew that gunpowder was kept. Lisurance Co. v. Hall, N. S. iii. 
 417. 
 
 270. Liquors, the sale of which is prohibited under a penalty, may still be 
 insured. Niagara Ins. Co. v. De Graff, N. S. iii. 489. 
 
 271. Clause " partial loss on tin plates excepted." Kettelt y. Alliance Ins. 
 Co., N. S. iii. 186. 
 
 272. A policy of insurance on " groceries" had a condition that if the pre- 
 mises were used for storing liquors, " except as herein specially provided for, 
 or hereafter agreed to by this corporation, in writing upon this policy," the 
 policy should thereby be rendered of no effect. Liquors wore kept, and it was 
 foW that if the jury found that the term "groceries," as used, included these 
 articles, then they were " specially provided for in writing on the policy." 
 Niagara Ins, Co. v. De Graff, N. S. iii. 489. 
 
 273. Execution clause — what is a levy within the meaning of such clause. 
 Commonwialth Ins. Co. v. Berger, N. S. ii. 505. 
 
 274. Breach of condition against assignment of property insured. Western 
 M'iss. Ins. Co. V. Riker, N. S. ii. 127. 
 
 275. Warranty — " free from all liens." Bidwell v. North Western Ins. Co., 
 N. S. ii. 59. 
 
 276. Making brooms by hand, does not come within the prohibition "mills 
 and manufactories," in a policy of insurance. Franklin Ins. Co. v. Brock, N. S. 
 viii. 312. 
 
 277. Clause, that no action shall he maintained without previous reference to 
 arbitration, void. Stephenson v. Insurance Co., N. S. vii. 444. 
 
 278. Construction of policy. Id. 
 
 279. Construction of " deviation clause." Seccomb v. Insurance Co., N. S. v. 
 568. 
 
 280. Evidence of usage inadmissible to construe or control legal meaning. Id. 
 
 281. Evidence of the secretary of an insurance company, as an expert, to show 
 the meaning of terms in the policy, is not admissible. Washington Ins. Co. v. 
 Davison, N. S. ix. 449. 
 
 XVII. McTUAL Insurance, Pkemium Notes. 
 
 282. May divide its business into classes, but whether it may exempt premium 
 notes in one class from assessment for losses in another, gucere. Sands v. Boidwell, 
 N. S. iii. 6.36. 
 
 283. Receiver may charge in his assessment for expenses of making and col- 
 lecting the same. Id. 
 
 284. The insured is not liable to be assessed on his note, for losses occurring 
 to property after he has sold and conveyed it. Bolandv. Whitman, N. S. x. 666. 
 
 285. In a suit by the receiver of an insurance company, to recover assessments 
 on a premium note, a transcript of the appointment need not accompany the com- 
 plaint. Id. 
 
 286. It is no defence to a suit on a premium note, that assessments are made 
 more frequently than was represented. Id. 
 
 287. Surrender of policy dissolves the relation of insured as a member of the 
 company, which has no claims upon him except for previous assessments. 
 CampUil V. Adams, N. S. ii. 506. 
 
556 INSURANCE. 
 
 288. Note given to mutual insurance company is payable by law at its date, 
 and Statute of Limitations begins to run from then. Hoviland v. Edmonds a al., 
 N. S. ii. 318. 
 
 289. Assessments upon premium note should not include ' former assessments 
 still in force, and as to which the power of the company is expended. Campbell 
 V, Ada7ns, N. S. ii. 506. 
 
 290. Transfer of policy without consent of insurers — liability upon premium 
 note. Hyatt v. Wait, N. S. ii. 60, 
 
 291. Mutual insurance policy — default of cash payment of premium. Mtdrey 
 V. Shawmut Mutual Ins. Co., N. S. ii. 182. 
 
 292. Interest in the property insured is an essential in the relation of insur- 
 ance, and therefore the insured may dissolve it by sale of his interest. Wilson 
 V. Trumbull Mutual Insurance Co., O. S. i. 122. 
 
 293. Where a mutual insurance company was authorized by a supplement to 
 Its charter to make insurances " for a specific rate of premium to be paid in cash, 
 in the same manner as insurance companies other than mutual insurance compa- 
 nies are accustomed to do," the company could take a note for such premiums. 
 The object of the supplement was to enable the company to issue two classes of 
 policies, one on the mutual plan to persons who should become members, and 
 one on the non-mutual plan to persons whoi should not become members, but 
 should pay their premiums in cash. The acceptance of a note by the company 
 was a mere extension of the time of payment, and did not make it any the less 
 a payment in cash. Carey v. Nagle, N. S. ix. 362. 
 
 294. An assessment of ninety-five per cent, additional to the actual losses in 
 a certain class, upon the premium notes of a mutual insurance company, to ' ' meet 
 estimated bad debts, interest, expenses, and costs of collection," is illegal. York 
 County Mutual lire Ins. Co. v. Bowden, N. S. x. 68. 
 
 295. Suit on premium note — by-law in violation of the charter , passed after a 
 member joins — presumption of acquiescence. Insurance Co. v. Harvey, N. S. 
 iv. 508. 
 
 XVin. FiKE Insurance. 
 
 296. H. effected an insurance on a certain building, partly frame and partly 
 brick ; subsequent to the insurance, and without notice to the insurance company, 
 H. erected a frame building contiguous to the one insured, which latter building 
 took fire and caused the former to burn. Held, that II. could not recover, be- 
 cause the erection of the frame building was a breach of good faith, and the loss 
 was caused by his own misconduct. Howard v. Insurance Co., O. S. i. 686. 
 
 297. Held, that had the the building insured been burned without the occasion 
 of its destruction being the frame, he might recover, because no actual injury 
 had thence arisen. Id, 
 
 298. An insurance company is chargeable with knowledge of all the facts 
 stated by an applicant to the company's agent, respecting an applicant's title and 
 interest in the premises ; and if the applicant truly states to the agent the real 
 condition of the property, he cannot be held to have made any misstatement, or 
 practised any concealment, notwithstanding the written application varies from 
 such statement. Hodgkins v. Montgomery County Mutual Insurance Co., N. S. i. 
 237. 
 
 299. Where matters material to the consummation of a contract are to be ad- 
 justed and agreed between the parties before an indorsement can be made on the 
 policy, the risk does not attach until such adjustment is perfected. Hartshorn v. 
 Shoe and Leather Dealers^ Ins, Co,, O. S. ix. 184. 
 
 300. An action will lie by a party holding property as security to recover 
 damages by fire from a locomotive. Bean v. Atlantic ^ St. Louis Railroad, N. 
 S. X. 531. 
 
 301. The value of the property destroyed is the measure of damages in an ac- 
 tion against agent for not procuriiig full insurance. Beardsley v. Davis, N. S. 
 viii. 379. 
 
 302. A partner has an insurable interest, and on the receipt for a loss for in- 
 surance he must account to the firm. Manhattan Insurance Co. v. Webster, N. 
 S. viii. 757. 
 
 303. One who accepts a policy of insurance, in which it is expressly provided 
 that it is agreed and declared that the policy is made and accepted upon and in 
 reference to application filed in the office, is thereby concluded from denying that 
 
INSUKANCE. 557 
 
 the application is his, at>d cannot set up that it was made by an agent employed 
 by Iiim to procure insurance upon his property, but without authority to bind 
 him by representations in the application. Draper v. Charter Oak Fire Insurance 
 Co., N. S.i. 316. 
 
 304. Where the agent of the insured, being unacquainted with the premii^es, 
 signs an application in which they are described as a " three or four story 
 brick building,", at the same time stating that he will send the insurers plats of 
 the building, and in such plats the building is stated as " first and second story 
 of brick," the insurers have sufficient notice to put them on inquiry, and, the 
 third story being of frame, cannot in case of loss claim that the policy is void 
 in law for misrepresentation of a material fact. Woods v. Atlantic Mutual In- 
 surance Co., N. S. xii. 47. 
 
 305. In a suit on such policy, whether the insurance was to be left open until 
 the delivery of the plats, is a question of fact and as such belongs to the jury. 
 Id. 
 
 306 . Whether the buildings in all material respects were such as described in 
 the policy is also a question of fact, and the court had no right to give a binding 
 instruction to find for the insurers. Zd. 
 
 307. A person in possession claiming as owner, has a prima facie title in fee, 
 and a suflScient insurable interest. Id. 
 
 308. Insurance may be effected in the name of a nominal partnership where 
 the business is carried on by and for the use of one of the partners. Phosnix 
 Insurance Co. v. Hamilton, N. S. xii. 192. 
 
 309. Where no representations are made with regard to the persons who 
 compose the firm, there is no misrepresentation which will avoid the policy. 
 II. 
 
 310. Payment of the premium is a condition precedent to the attachment 
 of the risli, and if the property is destroyed before the premium is paid, the 
 company are not liable. Bradley v. Potomac Insurance Co., N. S. x. 129. 
 
 311. Right of insurers of mortgagee's interest to assignment and subrogation 
 upon offer to pay loss and amount due on mortgage. Insurance Co. v. Boyden, 
 N. S. V. 127. 
 
 312. Rights of party purchasing equity of redemption of land, previously in- 
 sured by owner for benefit of mortgagee, after loss and payment to latter. 
 Graves v. Insurance Co., N. S. v. 511. 
 
 313. Removal of goods, where policy provides against. West v. Insurance 
 Co., N. S. V. 127. 
 
 314. Interest in a policy on realty descends to heirs. Wyman v. Wyman, N. 
 S. Hi. 569. 
 
 .'il5. If policy runs to assured, his executors, &c., the latter may maintain an 
 ao '-in as trustee for the heirs. Id. 
 
 316. Damages in such case are realty. Id. 
 
 317. The sale of property and taking back a mortgage of it, does not 
 change the title within the meaning of a policy. Kitis v. Insurance Co., N. S. 
 ix. 515. 
 
 318. A contract of, against fire, not required to be in writing by the common 
 law; nor by the statutes of Maine Walker v. Insurance Co., N. S. ix. 195. 
 
 319. Where an insurance is on a house and stable and an' over-insurance is 
 made on the house, and both are burned, the company tendering payment for 
 the stable are not estopped from setting up a forfeiture as to the house. Elliot 
 V. Lvcoming Insurance Co., N. S. x. 745. 
 
 320. Where a condition in a policy is, that notice of a fire should be given to 
 the " secretary forthwith," it will be a compliance, if the insured calls with the 
 agent the morning after the fire on the premises, and the next day his statement 
 is sent to the secretary. Bealty v. Lycoming Ins. Co., N. S. x. 745. 
 
 321. A fire insurance upon the buildings of a manufactory covers all risks 
 arising from the use of articles ordinarily used in such manufactories, unless such 
 risks be expressly excepted. Insurance Co. v. McLaughlin, N. S. vi. 374. 
 
 322. In an insurance on the buildings of a patent leather manufactory, benzole 
 being an article of common use in such establishments, the policy reciting, " Priv- 
 ilege granted of keeping not more than five barrels of benzole in a Small shed, 
 entirelv detached from all the other buildings, situated on the rear end of the lot, 
 about 100 feet from the main building, and nowhere else on said premises," the 
 
558 INSURANCE. 
 
 prohibition excludes the benzole as stored in bulk from the factory, hut not its 
 use in the conduct of the business in the ordinary way. 7ns. Co. v. McLaughlin, 
 N. S. vi. 374. 
 
 323. Is upon building as such — not on mei-e materials. Nave v. Ins. Co., N. 
 S. Ti. 60. 
 
 324. A transfer by one co-tenant or partner to another is within the prohibi- 
 tion of alienation. Buckley r. Garrett, N. S. iv. 441. 
 
 325. But the acts of the company, as accepting premiums from the alienee, 
 may make a waiver of the forfeiture, and consequently an estoppel. Id. 
 
 326. The execution-creditor is not entitled to the proceeds of a policy, in case 
 of a loss by fire, by reason of a levy on the premises. Plimpton v. Farmers' Mu- 
 tual Ins. Co., N. S". xi. 130. 
 
 327. The term " builder's risk," in a policy does not refer to such repairs as 
 are indispensable to the proper conduct of the business to which a building is ap- 
 propriated. Franklin Fire Ins. Co. v. Chicago Ice Co., N. S. xii. 58. 
 
 XIX. Open Policies. What mat be included. 
 
 328. A policy which is upon a specified kind of goods, to be brought in a cer- 
 tain kind of ships, within a stated time, with a rate of premium fixed, leaving 
 nothing but the quantity and value of the goods to be declared and indorsed on 
 the policy, as the invoices are received, is a valid open policy, and might embrace 
 goods that were lost and known to be lost before they were indorsed on the policy. 
 Hartshorn et al. v. Shoe and Leather Dealers' Ins. Co., 0. S. ix. 184. 
 
 329. In an action on a policy of insurance it appeared that the goods insured, 
 contained in thirty-six bales and cases, had arrived at their port of destination, 
 and had been subsequently destroyed by fire in the warehouse of the consignee 
 before inspection, with the exception of two cases. The goods contained in one 
 of the latter, of a delicate fabric, were injured apparently by salt water, and 
 there was a slight evidence that it exhibited on the outside stains of salt water, 
 which stains were proved also to have been on some of the other packages before 
 the fire ; the remaining case was also damaged. The vessel, however, was sound 
 and seaworthy at the end of the voyage ; the rest of the cargo uninjured ; there 
 was no violent storm during the voyage. The goods also were of various de- 
 scriptions and differently packed. Held, that there was no evidence to gu to the 
 jury of a loss by the perils of the sea, at least as to thirty-four packages. Levy 
 V. Ins. Co., 0. S. ii. 297. 
 
 330. A contract to sell a part of the pork, the absolute property of the owners 
 of the pork-house, and the weighing of the same, inspected by the inspector of 
 the vendees, separated the property from the stock, and it was no longer included 
 in the policy, although the vendees were, by a separate contract, to smoke it at 
 the establishment. Jackson v. Ins. Co., O. S. ii. 374. 
 
 331 . What is necessary to constitute a valid open or running policy. Harts- 
 horn V. Shoe and Leather Dealers' Ins. Co., 0. S. ix. 184. 
 
 332. A policy of insurance containing a clause that goods held on commission 
 must be insured as such, is to be interpreted by its own terms, and parol evi- 
 dence is not admissible to show that the insurers knew the kind of business of 
 the insured, and the character of his interest in the goods. Baltimore Ins. Co. v. 
 Loney, N. S. iii. 651. 
 
 333. When an open policy will include articles kept for use as well as for sale. 
 Burgess v. Ins. Co., N. S. v. 611. 
 
 334. An insurance on a locomotive and car contained in the car-house No. 1, 
 ,, will not cover a loss occurring while they are not In the car-house. Annapolis 
 
 Railroad Co. v. Baltimore Ins. Co., N. S. x. 129. 
 XX. Ot Pkoop of Loss and Waivbb. 
 
 335. A breach of a condition rendering a policy void may be waived bv the 
 insurer. Webster v. Phoenix Ins. Co., N, S. xiv. 320. 
 
 336. In determining whether a technical total loss has been incurred upon a 
 valued policy, the actual value of tlie vessel at the time of the disaster is to be 
 taken, and not the valuation of the policy, and the proportion of loss is to be 
 ascertained by deducting the cost of repairs from the value of the vessel when 
 repaired. Marine Dock and Mut. Ins. Co. v. Goodman, 0. S. iv. 481. 
 
 337. The provision in a policy for ascertaining a loss by a separation of the 
 damaged from the undamaged articles, applies onlv to cases of partial, not to a 
 total loss, constructive or absolute, Winter v. Del, Mutual Ins. Co., 0. S. iX. 304. 
 
INSUEANCE. 559 
 
 338. The propi-iety of a sale of a cargo, at a port of distress, is dependent 
 upon tao facts, and they are for a jury to determine. Winter r. Delaware Mutual 
 Ins. Co., 0. 9. ix. 304. 
 
 339. The policy contained a clause that the loss should he paid within sixty 
 days after it should be ascertained and proved. The loss was duly proved 
 within the sixty days, and was acknowledged hy the company, who offered pay- 
 ment of what it assumed as the amount of its liability (but in fact n, smaller 
 sum than it was bound for), and then refused to pay any larger sum ; Held, 
 that thereby the condition as to the sixty days was waived, and interest was due 
 from that date on the sum for which the company was really bound. Baltimore 
 Ins. Co. V. Loney, N. S. iii. 651. 
 
 340. Where- the preliminary proofs of a loss were received by the insurers 
 without objection, and payment refused on other grounds, any defects in the 
 proofs must be considered as waived. Taylor v. Roger Williams Ins. Co., N. S, 
 xi. 722. 
 
 341. A policy of insurance provided that no suit or claim thereon should be 
 sustainable unless made within twelve months after the loss ; and that in any 
 such suit commenced twelve months after the loss the lapse of time should be 
 conclusive evidence against the validity of the claim. A loss occurred and the 
 insured was prevented by the war from bringing suit within twelve months : 
 Held, that the war having rendered compliance impossible, the presumption from 
 the lapse of time was thereby destroyed and did not revive by the cessation of 
 the war ; and the insured might recover if his action was brought within the 
 period of the Statute of Limitations. Semmes v. Citij Fire Ins. Co., N. S. xi. 
 418. 
 
 342. A condition requiring "a particular account of a loss," is not complied 
 with by a notice of " household furniture $367, groceries $233," the same as 
 in the policy. Beatty v. Lijcoming Ins. Co., N. S. x. 745. 
 
 343. To constitute a waiver of notice, there must be some official act ; mere 
 silence is not enough. Id. 
 
 344. What will amount to waiver of objection to preliminary proof of loss. 
 Graves v. Washington Ins. Co., N. S. vi. 508. 
 
 345. If not objected to on trial, too late at the argument upon exceptions. 
 Id. 
 
 346. Where no objection has been made to the form of notice of a loss under 
 a policy of fire insurance, though not according to the terms of the policy, all 
 exception is waived. Works v. Farmers' Mutual Fire Ins. Co., N. S. x. 68. 
 
 347. What will amount to waiver. Sheldon v. Insurance Co., N. S. iii. 635. 
 
 XXI. Of Salvage and Barratry. 
 
 348. Negligence or want of skill not amounting to barratry will not avoid the 
 insurance. Powell v. Insurance Co., O. S. i. 110. 
 
 349. In case of sale by master from necessity, the salvage belongs to insurers. 
 Stephenson v. Insurance Co., N. S. vii. 444. 
 
 350. Constructive total loss, resulting from barratry. Greener. Insurance Co., 
 K. S. V. 188. 
 
 XXII. Of Accident Insdrance Policy. 
 
 351. A town liable for damages for insufficiency of highway cannot have the 
 amount received by plaintiff from an insurance company deducted from its 
 liability. Harding v. Town of Townshend, N. S. xi. 128. 
 
 352. An " accident " within the meaning of a policy of insurance means an 
 event which happens from some external violence or vis nuijor, and which is un- 
 expected, because it is from an unknown cause, or is an unusual result of a 
 known cause. Schneider v. Life Ins. Co., IS. S. vili. 349. 
 
 353. Negligence of the person injured does not prevent it from being an acci- 
 dent. Id. 
 
 354 Therefore in an action on a policy of insurance against accident, the 
 negligence of the insured is no defence. Id, 
 
 355. A policy of insurance against accident contained a clause against liability 
 for injury resulting from the assured " wilfully and wantonly exposing himself 
 to any unnecessary danger. " The assured attempted to get on a train of oars 
 while in slow motion, and fell and was killed. Held, that the negligence was 
 not wilful or wanton, and the company were liable. Id. 
 
 356. The words "totally disabled from the prosecution of his usual employ- 
 
560 INSUEANCE. 
 
 ment," in an accident insurance policy, mean wholly disabled from doing sub- 
 stantially all kinds of his accustomed labor, to some extent. A disability that 
 prevents his doing as much in a day's work as before is not total, but one that 
 entirely prevents his doing certain portions of his accustomed work is total, though 
 there are other portions that he is able to do. Sawyer v. United States Casualty 
 Co., N. S. Tiii. 233. 
 XXIII. Of Bakkkuptct of the Assueed. 
 
 3.57. The receipt by the company of interest upon his premium note, after the 
 filing of his petitioii in bankruptcy, but without, actual notice thereof, is not a 
 waiver of its right to treat the policy as at an end. Reynolds y. Ins, Co. N. S. 
 X. 715. 
 
 358. The bankruptcy of the company is no defence to an action by the assignee 
 on such a note. Carey y. Nagee, N, S. ix. 362. 
 
 XXIV. Of Foeeign Insukance Companies, Life Insubancb of Insolvents 
 
 AND of GaKNISHMSNT OF AN INSURANCE COMPANY. 
 
 359. A policy of insurance issued by a New Jersey company to a citizen of 
 Virginia, containing no condition for the payment of premiums in any other 
 place than New Jersey, is a contract to be performed in the latter state, and 
 must be goyerned by its laws. Spratley v. Mutual Ins. Co., N. S. xiv. 188. 
 
 360. In a suit on a policy made in another state, proof is not necessary of the 
 company's authority to transact business in such state ; it will be presumed that 
 the company acted lawfully. Clay Fire Ins, Coi y. Huron Salt Manufacturing 
 Co., N. S. xiv, 460. , 
 
 36 1 . The right to sue on a policv, whererer made, is transitory and not local. 
 Id. 
 
 362. Where a policy provides that it shall be void, unless the "assured is the 
 sole and. unconditional owner," an equitable title in another is a defence to a 
 suit on it. Id. 
 
 363. A policy making the loss, if any, payable to A. B., can be sued on by 
 the assured to use of A. B., without proof of any legal or equitable interest in the 
 latter. Id. 
 
 364. Insurance company cannot defend against suit for loss, on the ground 
 that the company was foreign to the state of Michigan, and had not complied 
 with its laws relating to such companies. Id. 
 
 365. The answers by an insured, .written downby the agent of an insurance 
 company, though signed by the insured, may be proved not to have been the 
 answers given. Ins. Co. f. Mahone, N. S. xiv. 525. 
 
 366. Insurance company chartered by foreign state, transacting business in 
 Philadelphia, although by law directed to pay two per cent, of their receipts to 
 The Association for the Relief of Disabled Tiremen, is of so doubtful constitu- 
 tionality that the courts will not enforce the bonds given for the payment of such 
 per centum. Association for Relief of Disabled Firemen y. Wood, 0. S. ix. 482. 
 
 367. Whether an over-valuation and proof of loss be fraudulent or not is a 
 question of fact for the jury. Williams v. Phcenix Co., N. S. xiii. 125. 
 
 36;8. One who dies insolvent can make no disposition of the fund accruing 
 from a life insurance policy, if he leaves neither widow nor child. Such nloney 
 becomes assets for payment of debts. ■ Hathaway v. Sherman, N. S. xiii. 260. 
 
 369. An intention on the part of a testator to change the direction given by 
 law to this species of property is not to be inferred from general provisions in 
 his will. Id. 
 
 370. When a policy containing the words " such other risks as maybe agreed 
 upon, as per indorsement, accepted by the company," has the risk agreed on, 
 the premium paid and the indorsement made by an agent, the insurance is 
 effected. Wass v. Maine Marine Ins. Co., N. S. xiii. 260. 
 
 371. A contract of insurance is executory until the expiration of the term of 
 insurance. United States Ins. Co. of Baltimore y. Tardy, N. S. xiii. 393. 
 
 372. If the company becomes insolvent the insured may put an end to the 
 contract. Id. 
 
 373. The amount of unearned premiums to be returned in case of insolvency 
 is the portion applicable to the time not covered by the risk, with interest from 
 the termination of contract. Id. 
 
 374. THe demand for unearned premiums is a chos,e in action which may be 
 sold without writing. Id. 
 
 375. An inaccurate representation (not a warranty) believed to be true, 
 
INSUKANCE— INTEREST. 5G1 
 
 would not defeat an action on a policy. Imperial Fire Ins. Co. v. Murray, N. 
 S. xiii. 393. 
 
 376. The insurable interest of a lessee is the value of the property he is bound 
 to replace. Id. 
 
 377. Where a policy expressly makes the application a part of itself, and a 
 warranty of all the statements in it, it will be so considered and must be strictly 
 true to authorize a recovery on the policy. American Ins. Co. v. Gilbert, N. S 
 xiii. 460. 
 
 378. Parties may contract on such conditions as they see fit. Id. 
 
 379. When it is expressly provided that over-valuation shall make the policy 
 void, it is error to submit to the jury whether it was done in good faith. Id. 
 
 380. Whether an insurance company can be held upon the process of garnish- 
 ment depends upon the state of the claim at the time of service of process. 
 Martz V. Detroit Fire Sf Mutual Insurance Co., Garnishees of Ilebel, N. S. xiii. 
 461. 
 
 381. Where the claim is contingent it cannot be held. Id. 
 
 382. An insurance company having issued certain policies reinsured them in 
 another company. A loss occurred and subsequently the first company became 
 insolvent. The second company then bought up some of the policies at a discount. 
 Held — (1.) That it was an investment within the corporate powers of the second 
 company and not against public policy. (2.) That in an action by the assignees 
 in bankruptcy of the first company to recover the amount of the reinsurance, 
 the second company could set off the purchased policies at their face-value. 
 Hovey V. Home Ins. Co., N. S. xiii. 511. 
 
 INTENTION. 
 
 An act legal in itself, and which violates no right, cannot be made actionable 
 on account of the motive which 'induces it. Chatfield v. Wilson, 0. S. v. 528. 
 
 INTEREST. 
 
 I. Who are Liable to pat Interest. 
 
 1. In tort, it is in discretion of jury to allow interest or not. Black v. Rail- 
 road Co., N. S. V. 573. 
 
 2. Error to instruct them, as matter of law, to allow interest on the damages. 
 Id. 
 
 3. Where there is no agreement to pay interest, it is only allowed by way of 
 damages, for breach of payment of the principal. Southern Central Railroad v. 
 Town of Moravia, N. S. xi. 332. 
 
 4. Where the principal has been paid and received in full, no action can be 
 maintained for interest. Id. 
 
 5. Agreement to call at obligor's office for interest on bond and mortgage, 
 does not make the office the only legal place for payment. McCoUerv. DeGroot, 
 N. S. viii. 125. 
 
 6. Equity will relieve obligor against breach of condition in consequence of 
 such agreement. Id. 
 
 7. The interest law of Indiana of 1867, authorizing ten per cent., governs 
 contracts made before the law took eflfect. Paltison v. Jenkins, N. S. x. 667. 
 
 8. Where in a bond interest is made payable annually, and there is a failure to 
 pay it when due, interest on the unpaid interest is not recoverable without a 
 special agreement to that effect. Stokeley v. Thompson, O. S. viii. 231. 
 
 9. No matter what the amount of inconvenience sustained by the plaintiff in 
 the case of non-payment of money, the measure of damages is the interest of the 
 money only. Fletcher v. Tayleur, O. S. iv. 318. 
 
 10. Where a corporation issues its bonds with interest payable semi-annually, 
 when by law it was authorized to make the interest payable annually only, the 
 person who contracts with the corporation to redeem such bonds cannot avoid his 
 contract upon the ground that the corporation exceeded its authority. Town 
 Council of Newark v. Brady, O. S. iv. 639. 
 
 11. Interest allowed on unliquidated debts which can be ascertained by com- 
 putation and reference to established market value. Slipperly v. Stewart, N. S. 
 
 Tii. 637. . , 
 
 12. Where interest is not expressly stipulated for in the contract, it is not an 
 essential part thereof, and the state may prohibit its recovery without impairing 
 the obligation of the contract. Harmanson v. Wilson, N. S. xiv. 627. 
 
 13. In Virginia interest is only recoverable by virtue of statutes which make 
 36 
 
562 INTEREST 
 
 the allowance of it discretionary with the court and jury. Therefore a statnta 
 allowing an abatement of intererf that accrued daring the war, between citizens 
 of the same state, is constitutional and valid. Harmanson v. Wilson, N. S xiv. 
 .627. 
 
 14. Semble, the act would be valid in Virginia even in cases where interest 
 was expressly contracted for. Id. 
 
 15. A vendee taking possession withont paying purchase-money is bound to 
 pay interest. Parker v. Parker, N. S. xiii. 2B0. 
 
 16. Where allowed by way of damages must be according to the rate of the 
 lex fori. Goddard v. Foster, N. S. xiii. 330. 
 
 17. When trustee loaning at four and a half per cent, not liable for a greater 
 rate of interest. Graver's Appeal, N. S. v. 383. 
 
 18. Where one holds legal title for security and purchases the tax certificates, 
 he is entitled to interest on their amount. Fisk v. Brunette, TS. S. xii. 194. 
 
 19. Charging of interest on customer's account. CrosskiU v. Bower, N. S. iii. 
 438. 
 
 20. The discounting of bills where the customer's account is overdrawn makes 
 the bank a holder for value. In re Carew, N. S. iii. 439. 
 
 21. If interest coupons annexed to a negotiable bond are not paid when due, 
 interest should be allowed. Conn. Ins. Co. v. C, 4rc., Railroad Co., N. S. iii. 
 443. 
 
 22. Holder of coupon payable to bearer may recover amount with interest and 
 exchange. Gelpcke v. Dubuque, N. S. iii. 629. 
 
 23. The surplus estate of one insolvent partneris to be employed in paying 
 the joint debts before paying interest. Thomas v. Minot, N. S. iii. 185. 
 
 24. Where the maker and indorser of a note reside in New York the laws of 
 that state must govern as to the rate of interest. Hackettstown Nat. Bank v. Bea, 
 N. S. xii. 600. 
 
 25. When interest on penal sum may be added by damages as against surety. 
 Bank v. Smith, N. S. vi. 511. 
 
 26. Interest will not cease after the service of the attachment where the delay 
 is occasioned by the unreasonable conduct of the garnishee. Rushion v. Bmoe, 
 N. S. X. 344. 
 
 27. Interest on judgment to be computed to time when levy on land completed. 
 Bucknam v. Lothrop, N. S. v. 186. 
 
 28. Interest is not allowable as a matter of law in torts. Lincoln v. Claflin, 
 N. S. viii. 250. 
 
 29. If creditor is a citizen of a power at war with the debtor's government it 
 does not absolve his oligation to pay, and if he does not he is liable for interest. 
 Ward V. Smith, N. S. viii. 354. 
 
 30. Five per cent, per month on the suhscriptioti payable after failure for thirty 
 days is not merely interest in the ordinary sense of the term, but is a penalty to 
 enforce payment. Custar v. Gas ^ Water Co., N. S. ix. 746. 
 
 31. Whether interest is recoverable in an action of tort the jury may consider 
 time in fixing damages. Lindsey v. Town of Danville, N. S. xiii. 713. 
 
 32. A vendor, who unwarrantably refuses to accept the purchase-money, is 
 not entitled to interest on the purchase-money. King v. Ruckman, N. S. xiii. 63. 
 
 33. A statement by a testator estimating his estate with reference to his will 
 is inadmissible to show at what rate interest should be charged on a legacy. Fow- 
 ler V. Colt, N. S. xiv. 323. 
 
 II. Op Compound Intekest. 
 
 34. Under a contract to pay for land, upon the execution of a deed, interest 
 will not begin until tender of the deed. Craji v. Bent et al., N. S. xi. 329. 
 
 35. Application of payments, when interest is stipulated for, annually. Town- 
 send V. Riley, N. S. vi. 251. 
 
 36. In other cases. Id. 
 
 37. Surplus of interest, after partial payments thereof, cannot be taken to 
 augment principal. Id. 
 
 38. Is recoverable in an action for the value of an article loaned only when 
 there has been unreasonable delay in payment. Davis v. Kenaga, N. S. ix. 
 776. 
 
 39. Where a promise to pay money is not dated, and no time is fixed for pay- 
 ment, interest runs from the date of the delivery. Van Notman v. Whe^er, O. 
 S. iv. 445. 
 
INTEEEST. 563 
 
 40. Interest "till paid" means from date. Pittman v. Barrett, N. S. iii. 
 633. 
 
 41. A purchaser for cash is chargeable, in case of non-payment, with interest 
 from delivery. Foote v. Blanchard, N. S. iii. 250. 
 
 42. ■ Where a sum is letlt by will in ti-ast, with a direction that the interest and 
 income shall be applied to the use of a person, such person is entitled to the 
 interest from the date of testator's death. Cook v. Meeker, N. S. vii. 112. 
 
 43. Especially is this so where it appears to have been the intent of the testa- 
 tor that the legacy should be paid by a transfer of bonds bearing interest at the 
 time of his death. Id. 
 
 44. Allowed on unliquidated demands which could be ascertained by compu- 
 tation and reference to established market values. Sipptrly v. Stewart, N. S. 
 vii. 637. 
 
 4.5. In computing with rests, the first rest is to be made at end of one year 
 from commencement of account. Carpenter v. Welsh, N. S. vii. 638. 
 
 46. Interest is not chargeable upon book-debts except by virtue of special cus- 
 tom or agrement. Crosby v. Mason, N. S. vi. 13. 
 
 47. Compound interest is recoverable in Maine on a note payable there. 
 Stickney v. Jordan, N. S. x. 532. 
 
 48. Interest cannot be claimed on prepayments of a note payable on time 
 without interest. Parker v. Moody, N. S. x. 532. 
 
 m. Upon ■what Claims Ikterbst is Payable, and prom what Time Inter- 
 est IS TO BE Computed. 
 
 49. Whether an agreement to pay interest on interest, in order to be good, 
 must be made subsequently to the original obligation or not, or what constitutes 
 its precise consideration, not determined. Siokeley v. Thompson, 0. S. viii. 231. 
 
 rv. Op the Claim to Interest on Distribdtion op Funds in hands op 
 Sheriff, or those acting in a Fidijoiaky Capacity. 
 
 50. Executor is chargeable with simple interest on balances deposited in his 
 account at bank and used for private purposes. Norris's Appeal, N. S. xii. 
 787. 
 
 51. An executor is not chargeable with interest when he pays Within a rea- 
 sonable time after the funds are received. Parker's Estate, N. S. x. 408. 
 
 52. Neglect of executors to invest a legacy makes them chargeable with in- 
 terest at the legal rate. Id. 
 
 53. Administrators entitled to interest on a balance in his favor from over- 
 payment to distributee. Key v. Jones, N. S. xiv. 641. 
 
 54. An administrator who delays settling his account for ten years is charge- 
 able with compound interest. Johnson's Administratrix v. Hedrick, N. S. x. 
 670. 
 
 55. A trustee who retains the interest must pay bn it from the day it was due. 
 Lathrop V. Smalley, N. S. xii. 198. 
 
 56. Though a mortgagee, on a sale of the mortgaged premises under a prior 
 incumbrance, is entitled to receive (beside the principal) interest out of the sur- 
 plus proceeds only to the day of sale, yet it still continues to run on the debt 
 secured until the actual receipt of the money on. the final distribution. Hence, 
 in such case the creditor may subsequently recover in an action on the bond any 
 interest which has accrued between these two periods, notwithstanding that the 
 morto-age itself has been satisfied. Gordon v. Shalkross, 0. S. iv. 309. 
 
 57. A decree will bear only six per cent, interest, although founded on a mort- 
 gage drawing seven per cent. Wilson v. Marsh, N. S. i. 764. 
 
 58. Interest on verdict prior to entry of judgment is not allowed — the subject 
 discussed. O. S. vii. 189. 
 
 59. Judgment that plaintiff may redeem land on payment of a sum found due, 
 should provide also for interest on the sum to the time of payment. Fisk v. 
 Brunette, N. S. xii. 194. 
 
 60. On invested proceeds of attached property in oiBcer's hands belongs to 
 party entitled to the money. Richmond v. Collamer, N. S. v. 637. 
 
 61. Vendee evicted under prior mortgage is entitled only to interest in tha 
 purchase-money from the date of the master's deed. Ohling v. Ltiitjens, N. S. 
 
 iv. 441. . . , . 
 
 62. On a debt due by garnishee to his creditor as whose property it is attached, 
 is suspended during the proceedings. Jackson's Ex'rs v. Lloyd, 'S.'.S. iii. 309. 
 
561 INTEEEST— INTEENAL POLICE. 
 
 63. Interest is allowable on the whole of a judgment, even where costs are 
 included in it. Wetherill v. Stillman, N. S. x. 537. 
 
 v. Of Foreign Interest. 
 
 64. Where a bond and warrant is given in one state as collateral security for 
 a bond and mortgage in another state, the amount of interest is to be computed 
 according to the law of the latter state. Irvine v. Barret, O. S. ii. 447. 
 
 65. Interest payable on bill of exchange at the rate of the place where drawn. 
 Gibhs V. Fremont, 0. S. ii. 113. 
 
 66. Commercial intercourse between parties in the northern and southern states 
 during the late rebellion having been prohibited, both by the general rules of 
 public law, and expressly by the Act of Congress of 13th July 1S61, and the 
 president's proclamation in pursuance thereof, interest was suspended on debts 
 due by persons in the territory of either belligerent to persons in the territory of 
 the other. Tucker v. Watson, N. S. vi. 220. 
 
 67. Nor did such a debt begin to bear interest by reason of the presence of the 
 creditor at the residence of the debtor and his demand for payment, unless ho had 
 abandoned his residence in the hostile territory and taken such measures as the 
 rules and policy of the debtor's government prescribed to change his status as an 
 enemy. Id. 
 
 68. Parties may lawfully stipulate, if done in good faith, and not as cover for 
 usury, for rate of interest in either state, where contract is made in one and pay- 
 able in another. Townsend v. Riley, N. S. vi. 251. 
 
 69. In an action against factor for proceeds of sale, interest will be allowed 
 by law of place of sale. Cartwright v. Green, N. S. vi. 441. 
 
 70. Law of the place where the contract is to be performed will govern rate. 
 Banlc V. Young, N. S. vi. 60. 
 
 VI. Or UsuRioDS Interest. 
 
 71. Party using a note as evidence of claim may have lawful interest on sum 
 due him, though note promised to pay unlawful interest. Newell v. Nixon, N. S, 
 vi. 636. 
 
 72. The receiver of a borrower paying usury may sue for excess of interest, 
 Palen v. Johnson, N. S. vi. 127. 
 
 73. Action for usurious interest must be brought within the time prescribed in 
 statute. Id. 
 
 74. When note payable in city of New Tork and discounted in the country, 
 the proceeds whereof are paid in a city draft at usual rates, is usurious. Union 
 Bank v. Gregory, N. S. vi. 57. 
 
 75. Usurious rate of, as to vendee purchasing a security at a greater rate of 
 interest than six per cent. See Gaul v. Willis, 0. S. iv. 561. 
 
 76. Any profit made or loss imposed upon the borrower in addition to the 
 legal rate of interest is usury. Butterick v. Harris, N. S. iii. 112. 
 
 77. Agreement to pay certain sura at promisor's death with gross sum for 
 interest thereon, though at death more than legal interest, is not usurious. Barker 
 v. Coburn, N. S. v. 383. 
 
 78. A corporation taking a greater amount of interest than is authorized by 
 its charter may 'be proceeded against. Attorney- General v. B. Sav. Inst., N. S. 
 X. 743. 
 
 79. The interest law of 1867 declares that all interest exceeding ten per cent, 
 per annum is usurious and illegal. Perrin v. Lyman's Adm., N. S. x. 188. 
 
 VII. In what Interest is patadle. 
 
 80. The interest on a bond is payable in the same currency as the bond. 
 The Cotifederate Note Case, N. S.xiii." 706. 
 
 81. Though courts will not enforce an executory contract for the payment of 
 compound interest, yet where it is knowingly paid it cannot be recovered back. 
 Culver V. Bigelow, N. S. xi. 135. 
 
 82. Interest warrants or coupons in a negotiable form draw interest after pay- 
 ment of them is unjustly neglected or refused. Atiroi'a v. West, N. S. viii. 250. 
 
 83. Usury laws of one state will not be enforced in another on contracts made 
 in latter. Bank v. Young, N. S. vi. 60. 
 
 INTERNAL POLICE. 
 
 The police power of the state may be exercised by precautionary measures 
 against the increase of crime and pauperism. In the matter of Ahfong, N. S. 
 xiii. 761. 
 
INTEKNAL REVENUE. 565 
 
 INTERNAL REVENUE. 
 
 1. Au assessor of internal revenue has power to assess nn income tax where 
 he is satisfied it is incorrect. Doll v. Evans, N. S. xi. 315, 
 
 2. Where a forfeiture is made absolute by a statute, a decree of condemnation 
 relates back to the time of commission of the ^YrongfHl act. Henderson's Dis- 
 tilled Spirits, N. S. xii. 123. 
 
 3. A removal of spirits from the place where they wei-e distilled, to a bonded 
 warehouse of the United States, is not inconsistent with a scheme to defraud the 
 government of the taxes. Id. 
 
 4. It is no answer to an information under the Act of July 13th 1866, against 
 a brewer for his neglect to keep tlie prescribed books, that it was from ignorance. 
 United States v. FoJ.er, N. S. xii. 466. 
 
 5. The penalty is for the omission, and the very nature of his business de- 
 manded that he should know his duty. Id. 
 
 6. Nor is it any answer or excuse that he misconstrued the law. Id. 
 
 7. Where a law prescribes as punishment both a money penalty and im- 
 prisonment, the government can maintain an action of debt for the penalty. 
 Id. 
 
 8. The words " shall be liable," &c., are permissive and not compulsory, and 
 the amount of the penalty is discretionary. Id. 
 
 9. Character of the office of commissioner. Note to McCreechj v. Callahan, 
 N. S. iii. 241. 
 
 10. Property was seized by a collector of internal revenue for an alleged 
 violation of internal revenue laws, was libelled for forfeiture in the United 
 States District Court, tlie cause tried, verdict given for the claimant, and certi- 
 ficate of probable cause granted. Claimant sued the collector to recover the 
 value of the property so seized, and never returned to hiin. Held, he in entitled 
 to recover. Certificate of probable cause is no defence in such action, unless 
 the collector shall have forthwith returned the seized goods to the claimant. 
 Smith v. Averill, N. S. ix. 47. 
 
 11. Although the marshal had returned the property that he had attached, it is 
 nevertheless not his duty, but that of the collector, to see that the same is sur- 
 rendered to the claimant. Id. 
 
 12. The jurisdiction in revenue cases under the Act of March 2d 1833, was 
 taken away by the Act of July 13th 1866. Hornthall v. Collector. N. S. ix. 451. 
 
 13. In a proceeding for condemnation of whiskey for violation of sect. 68 of 
 the Internal Revenue Act of 30th June 1864, the fact that the whiskey had 
 passed into the hands of a bonS, fide purchaser before the commencement of 
 the suit will not avail the claimant. U. S. v. Fiftij-six Barrels nf Whiskey, N. 
 S. vi. 32. 
 
 14. Nor is it material that before such purchase the whiskey had been regu- 
 larly branded by a United States inspector. Id. 
 
 15. Where such purchaser has, for the purpose of rectification, mixed the 
 whiskey forfeited with other whiskey, so that it is not capable of identification, 
 the whole is liable to forfeiture. Id. 
 
 16. A written protest signed by the party is a condition precedent to the right 
 to sue for the recovery of duties paid under the Act of Eebruary 26th 1845. 
 Nichols V. United Stales, N. S. viii. 255. 
 
 17. The words "personal property" in the 48th section of the Internal Reve- 
 nue Act of 1864, as amended by the Act of 1866, do not include all the personal 
 property found in the same building where the still and illicitly distilled spirits 
 were found and in the possession, custody and control of the same person who 
 had control thereof, but must be confined to the tools, implements and instru- 
 ments that had been or could be used in connection with the distillation of spirits 
 in the building. United States y . Thirty-Three Barrels, N. S. vii. 365. 
 
 18. The words " personal property," in section 48 of the Internal Revenue 
 Act forfeiting property used in illicit distilling, include all the property in 
 the building where the still or spirits are found, whether of a nature to be used 
 5n the distillation of spirits or not. United Stales v. Quantity of Rags, Sj-c, N. S. 
 
 Tii. 369. 
 
 19. What njay be considered within the same building, yard or enclosure. 
 
 Id, 
 
 20. A claimant may take advantage of the limitation of sect. 68 of the Inter- 
 
566 INTEKNAL EEVENtTE— INTERNATIONAL LAW. 
 
 nal Revenue Act of 1864, under an answer of general denial. United States v. 
 Six Fermenting Tubs, N. S. vii. 751. 
 
 21. The Act of I866_. repealing the 68th section of the Internal Rerenue Act, 
 continues the section as to offences against th^ revenue laws committed before 
 the repeal. Id. 
 
 22. License is only a mode of taxation and does not give any authority to 
 carry on business contrary to the laws of a state. License Tax Cases, N. S. vii. 
 123. 
 
 23. Such license is no bar to indictment under state law. Pervear v. Com- 
 monwealth, N. S. vii. 123. 
 
 INTERNATIONAL COPYRIGHT. See Copteighi. 
 Question of, discussed. 0. S. ii. 129. 
 
 INTERNATIONAL LAW. 
 
 I. Rights akd Duties op BelligeeentS. 
 
 1 . The laws of war authorize an occupying conqueror to establish such gov- 
 ernment as he may deem proper, over hostile country in his occupation and con- 
 trol. Eefferman v. Porter, N. S. ix. 41. 
 
 2. If in such case the commanding officer establish a commission with the 
 powers and to perform for the time being the duties of the courts of law, a 
 decision by such tribuual upon a case tried before it is binding and conclusive. 
 Id. 
 
 3. The judgment of the civil tribunal established by the United States military 
 commander in Tennessee during the late war, may be pleaded in bar to an action 
 on the same cause in a state court after the war. ' Id. 
 
 4. The sale of a vessel of war by a belligerent to a neutral during hostilities 
 is not valid as against the other belligerent. United States v. Schooner Etta, N. 
 S. iv. ,38. 
 
 5. The doctrine of belligerent rights gives no power to the enemy to take with 
 impunity the property of a citizen of an invaded country". Lucas v. Bruce, N. 
 S. iv. 95. 
 
 6. The rebel army, during their occupation of a portion of the United States, 
 were mere trespassers. Id. 
 
 7. Therefore the order of a commander of such army is no defence to a party 
 in an action for taking a third person's goods. Id. 
 
 8. Such commander and the person taking in obedience to his orders are joint 
 trespassers. Id. 
 
 9. The compulsion that will excuse a trespass must have been an actual force 
 upon the person, and must have continued all the time. Id. 
 
 10. The statement in plaintiff's declaration, that he was about to use his pro- 
 perty for an unlawful and treasonable purpose, is not a defence in an action 
 against defendant for taking such property and applying it to the same purpose. Id. 
 
 1 1 . Where property is taken by a trespasser, and while in his possession is 
 destroyed, under such circumstances that it is a matter of doubt whether it 
 would have been destroyed had it remained in the possession of the rightful 
 owner, the trespasser is liable for the full value. Id. 
 
 12. In a country held by noilitary force the authority of the occupying force 
 is paramount, and excludes all other independent authority in it. United States 
 V. Reiter, N. S. iv. 534. 
 
 13. Government from some source is a necessity, and while the power is ex- 
 clusively with a party occupying a country, the right and duty are his to supply 
 that want. Id. 
 
 14. The establishment of the Provisional Court for Louisiana, by the Presi- 
 dent, as commander-in-chief of the forces of the United States, while they 
 held the territory in which it was to exercise its functions, was an act warranted 
 by the law of nations. Id, 
 
 15. Whether property be liable to capture as " enemies' property" does not 
 in any manner depend on the personal allegiance of the owner. It is the illegal 
 traffic that stamps it as " enemies'" property." Schooner Brilliant v. United 
 States, N. S. li. 334. 
 
 16. The surrender of fugitives from justice by one government to another is 
 not a duty or obligation-imposed by the law of nations, but is dependent on comity. 
 Adriance v. Lagrave, N. S. xiy. 29,'3. 
 
 17. The creditors of an absconding debtor instituted proceedings by which he 
 
INTERNATIONAL LAW. 567 
 
 was criminally indicted in the state of New York, and upon demand of the 
 United States government extradited from France, where he liad taken refuge, 
 and brought to New York, and was there arrested in civil actions brought in the 
 state courts by creditors who had procured his extradition ; Held, that such 
 orders of arrest must be set aside. Adriunce v. Lagrave, N. S. xiv. 295. 
 
 18. Bat where the debtor was arrested at the suit of a creditor who had taken 
 no part in the extradition proceedings, held, that the arrest was valid. Id. 
 
 ■ 19. Wlien a portion of the subjects of a civil government have rebelled, they 
 will be regarded in the light of belligerents. The Golden Rocket, N. S. iv. 27. 
 
 20. The constitution and not the law of nations governs the relations between 
 the government and citizens of the United States, Norris v. Doniphan, N. S. 
 iii. 471. 
 
 21. The late civil war was a public war and there was no difference in the 
 rights of the parties ; each had the rights of Independent belligerent. Smith v. 
 Brazelton, N. S. ix. 762. 
 
 22. Purchase of belligerent ships by citizens of the United States — opinion of 
 Attorney-General. O. S. iii. 577. 
 
 23. A private soldier of the rebel army may rely upon the belligerent rights 
 conceded to the late so-called Confederacy, as a defence in a civil suit for property 
 taken according to the usages of war. Hughes v. Litsey, N. S. v. 148. 
 
 24. Judgment rendered by a tribunal under authority of a rebel state govern- 
 ment void, and execution quashed. Note to Hughes v. Litseij, commenting on 
 Filkins v. Hawkins, N. S. v. 160. 
 
 25. Not a de facto court. Id. 
 
 26. On the occupation of New Orleans and the neighboring parts of the state 
 by the Federal forces, in April 1862, the officers of the rebel -state government 
 fled from Baton Eouge, the capital, to other parts of the state still held by the 
 rebels, claiming to carry the government with them. The auditor of the state 
 carried with him the public bonds belonging to the banks, deposited witli him, 
 according to law, as security for their circulation. These securities were held 
 by him without warrant of law, as against any one claiming through the Federal 
 government. Hank v. New Orleans, N. S. v. 555. 
 
 27. Securities, so withheld within the lines of the enemy, are lost, within the 
 meaning of the law authorizing a recovery on instruments lost, without producing 
 them . Id. 
 
 28. Money, whether principal or interest, coming due on such securities, is 
 due to the actual legal owner of them, and not to the person who wrongfully 
 holds them, Id. 
 
 29. A recovery may be had by the owner for the interest due on bonds, with- 
 out producing the original coupons, on its being shown that they are wrongfully 
 withheld from him in the territory of an enemy, and are therefore inaccessible 
 to hira, and also that they were so held when they became due, so that no one, 
 hereafter to appear, can have the rights to them of a bon4 fide holder for value, 
 without notice. Id. 
 
 30. Securities so withheld by the rebel state auditor, their locus being showu, 
 are not lost within the meanhig of the article of the Civil Code of Louisiana, re- 
 quiring that securities lost shall be advertised before a recovery can be had on 
 them.. Id. 
 
 II. Of Neutrals. 
 
 31. To trade between themselves and with cither belligerent. The Bermuda, 
 N. S. V. 568. 
 
 32. When contraband of war seizable. Id. 
 
 33. Seizure extends to the ship and cargo in cases of fraud or bad faith. Id. 
 
 34. Neutrals have a right to challenge the existence of a blockade de facto, 
 and also the authority of the party instituting it. They have a right to enter the 
 ports of a friendly nation for the purposes of commerce, but are bound to recog- 
 nise the rio'ht of a belligerent engaged in actual war, to use this mode of coercion 
 for subdumg the enemy. Schooner Brilliant et al. v. United States, N. S. ii. 
 
 334. 
 
 35. To legitimate the capture of a neutral vessel or property on the high seas, 
 a war must exist de facto, and the neutral must have a knowledge or notice of 
 the intention of one of the belligerents to use this mode of coercion against a 
 port, citv, or territory in possession of the other. Id. 
 
 36. War is that state in which a nation prosecutes its right by force; and 
 
568 INTEKNATIONAL LAW. 
 
 it is not necessary that both parties should he acknowledged as independent 
 nations or sovereign states, nor that war should be solemnly declared. Schooner 
 Brilliant et al. v. United States, N. S. ii. 334. 
 
 37. As a civil war is never publicly proclaimed, eo nomine, against insurgents, 
 its actual existence is a fact in domestic history which the courts are bound to 
 notice and know. Id. 
 
 38. Where the sovereign of a neutral state has acknowledged the existence of 
 a war by his proclamation of neutrality, a citizen of that state is estopped from 
 denying the existence of the war, and the belligerent right of blockade. Id. 
 
 39. Vessel from one neutral port to another does not violate blockade, though 
 the ultimate destination of the cargo be to the enemy. T/te Peterhoff, N. S. 
 vii. 62. 
 
 40. Articles contraband of war intended for a belligerent are always liable to 
 seizure. Id. 
 
 41. Classification of goods as contraband. Id. 
 
 42. Neutral merchant vessel carrying mail is not privileged by that fact from 
 examination, and has a special duty of frankness and respect for belligerent 
 rights. Id. 
 
 43. A bon^ fide purchase by a neutral of a vessel of a belligerent will not 
 prevent it from recapture by the other belligerent. The Georgia, N. S. viii. 
 250. 
 
 44. Neutrals' title to ships of belligerents — opinion of Hon. C. Gushing. 0. 
 S. V. 94. 
 
 HI. Status of Peksons in Hostile Teekitoet. 
 
 45. The personal disposition of residents in enemy's territory cannot be in- 
 quired into on a question of prize. Alexander's Cotton, N. S. iv. 576. 
 
 46. This applies to civil as well as foreign wars, unless modified by the action 
 of the government itself. Id. 
 
 47. The United States, by the Act 12th March 1863, does make a distinction 
 between loyal persons and others whom the general rule would class together as 
 enemies. Id. 
 
 46. Cotton was a proper subject of capture by the United States during the 
 rebellion. Id. 
 
 49. Residence in enemy's country for purpose of trade, though at the same 
 time consul of a neutral power, disqualifies from claiming as a neutral. A neu- 
 tral cannot claim as mortgagee of an enemy's vessel. The Aina, O. S. iii. 126 
 
 50. The lesal period of the termination of the war depends not on the continu- 
 ance or cessation of active hostilities, but on the acts of the departments of the 
 government to which political powers are intrusted. The proclamation of the 
 President of June 13th 1855, removing the restrictions on trade as to the states 
 theretofore in insurrection, was a valid act of recognition by the executive 
 department of the government of the termination of the war, and the rights of 
 plaintiff in this action, to sue, revived from that date. Semmes v. Ins. Co., N. S. 
 viii. 673. 
 
 51. While therefore the city of New Orleans was under the authority of the 
 confederacy, its citizens were citizens of the 'confederacy and enemies of the 
 United States ; but when the city passed into the hands of the Federal forces, it 
 became again part of the United States, and its citizens became enemies to the 
 Confederate States. Billgery v. Branch, N. S. viii. 334. 
 
 52. Where a citizen of Richmond drew a draft upon a citizen of New Orleans 
 in 1862, after the capture of the latter city by the United States forces, and the 
 payee, in February 1863, indorsed the draft to another, » citizen of Vicksburg, 
 within the Confederate States, who held it until October 1863, and then pre- 
 sented it to drawee, at New Orleans, who refused payment, aud the draft was 
 then protested : Held, that this was an illegal act, and the holder could not re- 
 cover. Id. 
 
 53. This is so whether the contract be held void under the general rules of 
 international law or under the Act of Congress of July 13th 1861. Id. 
 
 54. Where the debtor and the creditor's known agent to receive the money, 
 reside in the same jurisdiction, the fact that the creditor is a citizen of a power 
 at war with the debtor's government, and resident in the hostile state, does not 
 absolve the debtor from his obligation to pay, and if he does not, he is liable for 
 interest. Ward v. Smith, N. S. viii. 354. 
 
 55. The Act of July 13th 1861, and the proclamation of the President of 
 
INTEKNATIONAL LAW. 569 
 
 August 16th 1861, authorized: 1. Unrestricted commercial intercourse between 
 the citizens of loyal states and of those parts of insurgent states in occupation 
 of the Federal forces ; and 2. Intercourse between citizens of the loyal and in- 
 surgent states, subject to the license of the President and the regulations pre- 
 scribed by the Secretary of the Treasury ; and the President's order of February 
 28th 1862 was a general license to such intercourse. But by the President's 
 proclamation of Alarch 31st 1863, the distinction was abolished, and all inter- 
 course between the citizens of loyal and insurgent states was made subject to 
 license by the President and the regulations of the Secretary of the Treasury. 
 Graham v. Merrill, N. S. viii. 477. 
 
 56. It was not necessary to the lawfulness of such intercourse that the party 
 engaging in it should have a special license to himself by name under the Presi- 
 dent's own sign manual. The President's power to license might be delegated 
 or might be exercised by a general proclamation, such as those of February 28th 
 1862 and March 31st 1863. Jd. 
 
 57. In determining the status of rebel prisoners and property, the courts are 
 guided by municipal and not by international law. United States v. One Hun- 
 dred Barrels, N. S. iii. 734. 
 
 IV. JCEISDICTION OF CiVIL CoUKTS FOR CaUSE OF AcTION AKISING FROM AN 
 
 Act of War. 
 
 58. An officer commanding troops of the United States in an insurgent state, 
 during the fate civil war, seized property of a citizen of the state, and after ac- 
 quiring firm possession, sold it to a third person. After the war the owner at the 
 time of the seizure brought an action of trover for the value of the cotton against 
 the purchaser, in the Circuit Court of the United States. Held, that the court 
 had no jurisdiction ; the seizure was made as an act of war, and its validity was 
 not triable in a municipal court in a common-law proceeding. Coolidge v. Guth- 
 rie, N. S. viii. 22. 
 
 59. That this defence was admissible under the general issue in trover. Id. 
 
 60. That after complete possession of the cotton by the captor for twenty-four 
 hours it became booty by the laws of war, and the title of the hostile owner was 
 completely extinct. If the plaintiff iu this case had any right it was against the 
 United States. Id. 
 
 V. Contracts between Subjects of Different Powers at War. 
 
 61. During a war contracts between citizens of the opposing belligerents are 
 completely suspended, and cannot be enforced even by a proceeding in rem. 
 Connecticut Ins. Co. V. Hall, N. S. vii. 606. 
 
 62. Therefore a mortgagee of land in Illinois could not sue out his mortgage 
 while the mortgagor was a citizen of Louisiana, which was in insurrection ; and 
 a decree of foreclosure made under such circumstances was opened by a court of 
 equity, although the statutory period for redemption had passed. Id. 
 
 63. Belligerent cannot blockade mouth of river occupied on one bank by neu- 
 trals with right of navigation. The Peterhoff, N. S. vii. 62. 
 
 64. Though an alien enemy is incapable of maintaining a suit during hostilities, 
 he is liable to be sued if within reach of process. Dorset/ v. Thompson, N. S. xii. 
 732. 
 
 65. The late rebellion was such a war as suspended the right of a citizen of 
 Mississippi to sue on a policy of insurance in a Connecticut company. Semmes 
 V. Insurance Co., N. S. viii. 673. 
 
 66. In addition to this consequence of a state of war, the right to sue on such 
 a policy was suspended by the proclamation of the President of August 16th 
 1861. Id. 
 
 67. Where a policy contained an express provision that in any action under it 
 commenced more than a year from the time of loss, the lapse of time should be 
 conclusive evidence against the validity of the claim, the period of tlie war must 
 be omitted in computing the year. Id. 
 
 68. All species of contracts or commercial intercourse, whether direct or indi- 
 rect, between subjects of different powers at war, are invalid. Billgeri/ v. Branch, 
 N. S. viii. 334. 
 
 69. The late contest between the United States and the Confederate States was 
 ft war. Id. 
 
 70. Intercourse between debtor and creditor who are enemies during war, is 
 unlawful. United Slates v. Grossmayer, N. S. ix. 516. 
 
570 INTERNATIONAL LAW. 
 
 VI. Blockade. 
 
 71. Blockade may be by batteries on shore. The Circassian, N. S. iv. 502. 
 
 72. A public blockade is presumed to continue until notificatioti by the gov- 
 ernment that it is ended, and it does not cease by the occupation of the port by 
 the blockading force. Id. 
 
 73. Vessel sailing with intent to break blockade is liable as prize from the 
 moment of sailing, notwithstanding an intent to call at a neutral port on the 
 way. Id. 
 
 74. Evidence of intent to break blockade. Id. 
 
 75. In a suit upon an agreement contemplating a breach -of blockade of the 
 ports of the Confederate States of America, and upon a motion to strike out the 
 plea that such agreement was not binding by reason of a breach of blockade 
 being illegal, Held, that a breach of blockade by neutrals is not an offence 
 against the municipal law of England. The Helen, N. S. v. 176. 
 
 76. Presumption of intent to run the blockade may be inferred from a combi- 
 nation of circumstances. The Cornelius, N. S. v. 574. 
 
 77. Circumstances from which court will infer criminal intent. Id. 
 
 78. Voyage to belligerent port is one and same, whether destination be ulte- 
 rior or direct, and whether performed by one vessel or several. The Benmtda, 
 N. S. V. 569. 
 
 79. What circumstances may repel presumption of neutral ownership arising 
 from registry. Id. 
 
 80. Spoliation of papers. Id. 
 
 VII. A GOVEKNMENT DE FACTO GIVES NATIONAL CHARACTER AND HAS JURIS- 
 DICTION ONLY OVER THE PARTS OF ITS TERRITORY BNDER ITS ACTUAL CON- 
 TROL. 
 
 81. When during the late civil war portions of the insurgent territory were 
 occupied by the Federal forces, the President as commander-in-chief, as a mea- 
 sure of government of such territory, had power legallj- to establish therein 
 courts for the determination of controversies and the administration of justice. 
 Law V. Wallerstein, N. S. ix. 293. 
 
 82. The United States Provisional Court for the state of Louisiana, organized 
 under an order of the President, of October 20th 1862, was authorized to exer- 
 cise the jurisdiction conferred by that order — tliat is to say, "to hear, try and 
 determine all causes, civil and criminal, including causes in law, equity, revenue 
 and admiralty." Id. 
 
 83. When Congress, by virtue of its constitutional authority over national 
 courts, enacted that " all judgments, orders, decrees and decisions" of the 
 " United States Provisional Court for the state of Louisiana, in cases which would 
 ordinarily have been properly cognisable by the Circuit Court of the United 
 States, should be transferred to" and become the judgments, orders, decrees and 
 decisions of that court, enforced, pleaded and proved accordingly, a decree in 
 admiralty rendered in said United States Provisional Court became at once the 
 decree of the United States Circuit Court, and from it an appeal lay to the Su- 
 preme Court of the United States. Id. 
 
 84. The condition of war existed as regards the state of Mississippi, at least 
 from 16th August 1861, when the President, in pursuance of tlie Actof Congress 
 of July 13th 1861, declared that state in insurrection. Whether the war com- 
 menced, in contemplation of law, before that date, not decided. Semmes v. Ins. 
 Co., N. S. viii. 673. 
 
 85. When the United States forces, during the late war, acquired firm occu- 
 pation of part of an insurrectionary state, the citizens of that part occupied were 
 restored to their relations as citizens of tlie United States, and contracts between 
 them and other citizens became valid. Graham v. Merrill, N. S. viii 477. 
 
 86. The government of the Confederate States being a goverment de facto only, 
 had jurisdiction and gave national character only to such parts of the territory of 
 the several states as were under its actual control. Billgery v. Branch, N. S. 
 viii. 334. 
 
 VIII. Foreign Ministers. 
 
 87. The court being informed by counsel that one of the defendants was an 
 ambassador duly accredited from a foreign sovereign to the British court, will 
 dismiss him from the suit ; and will not, if he object, oblige him to plead or take 
 part in any proceedings. Otadstone v. Musurus Bey, N. S. ii. 176. 
 
INTERPLEADEK— INTOXICATING LIQUOES. 571 
 
 INTERPLEADER. 
 
 On an execution in a county court, against the goods of the defendant, in a 
 suit of A. V. B., certain goods in the hands of C. were seized, who paid a sum 
 of money to release them, and proceeded by interpleader. It appeared that the 
 goods originally belonged to B., but previous to the execution had been pawned 
 ■with a pawnbroker, C. (it did not appear by whom), and the duplicates had been 
 deposited in the hands of C. by L. to redeem them, and hold them as security 
 for the money advanced, who redeemed them accordingly. Tliere was no evi- 
 dence to show the time at which, or the circumstances under which L. became 
 possessed of the duplicates, or that he had any interest therein. Held, that C. was 
 entitled to the money paid to release the goods< Farber v. Sturmy, 0. S. vii. 
 296. 
 
 INTERPRETATION. See Insurance. 
 
 INTERVERSION OF POSSESSION. Subject discussed. N. S. i. 65. 
 
 INTESTATE. 
 
 1. Brothers of the half-blood. A person inherited lands in this state (Indiana) 
 from his maternal grandfather, and died while the Revised Statutes of 1831 were 
 in force, leaving a father surviving him, but neither children nor their descend- 
 ants, nor brothers or sisters, but brothers and sisiers of his mother Held, that 
 the father inherited the land. Case y. Wildridge, O. S. i. 695. 
 
 2. "Where a bastard, who has been legitimated, dies intestate, unmarried, and 
 without issue, his land passes to his natural parents for their joint lives, itillam 
 T. Killam, N. S. i. 18. 
 
 3. Statutes of descent in Pennsylvania; comments on. O. S. vii. 73. 
 
 4. W. E. died leaving a widow and three daughters. J. E., his brother, mar- 
 ried the widow, and had by her a daughter, Elizabeth, and died intestate, seised 
 of real estate which he had purchased. After this Elizabeth died intestate and 
 unmarried. Held, that the widow, though capable of being the heir of Elizabeth, 
 could not take the fee in the land because she was not of the blood of her hus- 
 band, from whom the estate descended to Elizabeth, and that the 6th section of 
 the Statute of Descents of 8th April 1833 admitted the half-sisters to the inher- 
 itance, in preference to more remote kindred of the whole blood. Any, the 
 smallest quantity of, common blood with the ancestor from whom the estate de- 
 scended is sufficient to qualify heirs to take, and in nieces there is no lack of 
 inheritance blood. Mary Ernes et al. v. Philip Brown, O. S. i. 634. 
 
 INTOXICATING LIQUORS. 
 
 1. The Act of 1872 imposes a penalty on every person who shall keep a place 
 ■where it is reputed that intoxicating liquors are kept for sale, without having a 
 license therefor. Held to be sufficient that the place was reputed to be one where 
 intoxicating liquors were kept for sale, and not necessary that it be reputed that 
 they ■were kept for sale without a license. Slate v. Buckley, N. S. xiii. 355. 
 
 2. In a prosecution under this act the accused claimed that the act was uncon- 
 stitutional, and asked the court to charge the jury that they were judges of the 
 law as well as of the facts. The judge instructed the jury that in a criminal 
 case they were judges of the law as well as of the. facts, but that they were under 
 the same obligation in the matter with the judge on the bench, and were not 
 authorized to say that that is not law which is so ; that the Supreme Court had 
 decided the act to be constitutional, and that in his opinion it was constitutional ; 
 that if they decided that to be unconstitutional which the Supreme Court had 
 decided to be constitutional, they would disturb the foundations of law ; but that, 
 after all, {hey were judges of the law, and if on their consciences they could say 
 that the act was unconstitutional, they ought to acquit the accused. Held, on 
 motion of the accused for a new trial, that the charge was correct. Id. 
 
 3. By statute the jury are made the judges of the law in criminal cases, but 
 not in any such sense that they are at liberty to disregard the law. They are to 
 inquire what the law is, and where their judgment is satisfied, the law as thus 
 ascertained is binding upon them, and should be their guide, whether it is or is 
 not as they may think it ought to be. Id. 
 
 4. The gist of the offence of selling intoxicating liquors, under the Act of 
 May 1st 1854 of Ohio, is the keepingof a place for such sale. O'Keefe v. State, 
 N. S. xiv. 54. 
 
572 INTOXICATINa LIQUORS— JOINT LIABILITY. 
 
 5. Where the allegation is that the place was a room, and the proof is a cellar, 
 it is no variance. O'fCeefe v. State, N. S. xiv. .'54. 
 
 6. The Act of 1870 of New Hampshire, providing that persons selling liquor 
 in violation of law shall be liable, where death results, to the persons dependent 
 on deceased, is constitutional. Bedore v. Newton, N. S. xiv. 322. 
 
 7. A widow may maintain an action under this statute. Id. 
 
 8. The disposition intended to be made of liquors kept for unlawful sale must 
 be determined by the jury. State of Maine v. Intoxicating Liquors, N. S. xiv. 
 528. 
 
 9. A design on the part of one who is mere bailee to illegally sell such liquors, 
 works no forfeiture. Id. 
 
 10. Whether ale and cider are intoxicating liquors, under General Statutes, 
 chap. 99; of New Hampshire, is for the jury. State v. Biddle, N. S. xiv. 646. 
 
 11. The punishment for the sale of intoxicating liquors may be constitution- 
 ally delegated to a municipal corporation. Hone v. Treasurer of Plainfeld, N. 
 S. xiv. 251. 
 
 12. The legislature has power to declare a place where liquors are sold in vio- 
 lation of the law a nuisance. McLaughlin v. iSfa(c, N. S. xiv. 59. 
 
 13. A purchaser may recover so much of the consideration paid for the sale 
 of liquors as is illegal under the statute. McGuinness v. Bligh, N. S. xiv. 393. 
 
 14. An innkeeper may furnish liquor to his own family as any other head of 
 a family. State v. Jones, N. S. vii. 189. 
 
 15. Statute of Vermont having taken away right of action for recovery or 
 possession of intoxicating liquors sold contrary to law, right of stoppage in 
 transitu can be enforced by suit. Howe v. Stewart, N. S. vii. 638. 
 
 16. The right to sell intoxicating liquors is not one of the privileges which the 
 states were forbidden to abridge. Bariemyer v. State of Iowa, N. S. xiii. 220. 
 
 JEWS. 
 
 Jews are bound to keep and to observe the civil regulations for keeping 
 Sunday. Society v. Commonwealth, N. S. vi. 634. 
 
 JOINDER OF PARTIES. 
 
 1. As to joining executor of decedent and surviving joint contractor. See 
 Burgoyne v. Insurance Co., O. S. iv. 701. 
 
 2. Of complaints for contract and tort in New York. Flynn v. Bailey, N. S. 
 vii. 638. 
 
 JOINT DEBTOR. 
 
 1. In an action for money had and received for usurious interest against hus- 
 band and wife, not as such, but simply as joint debtors, where they defended sepa- 
 rately, a verdict was given against the wife only. Porter v. Mount, N. S. v. 
 292. 
 
 2. Where two partners give joint notes and one conveys his interest to the 
 other, action lies by the payee on the remaining partner for the whole amount. 
 
 Woodbury v. Woodbury, N. S. vii. 318. 
 
 3. Separate settlement by one need not refer to the statute. Holdredge v. Bank, 
 N. S. vii. 189 
 
 4. Payment by one under agreement by the other to remain liable does not 
 stop the Statute of Limitations from running in favor of the latter. Sigler v . 
 Piatt, N. S. vii. 1 89. 
 
 5. Part payment by one, not in satisfaction of the debt, but for his personal 
 discharge, will not be a discharge as to the others. Winslow v. Brown, N. S. ii. 
 383. 
 
 6. Where such payment is made in another state, its effect must "be determined 
 by the laws of that state. Id. 
 
 JOINT LIABILITY. 
 
 1. The payment of one of several judgments rendered against parties jointly 
 and severally liable, is a satisfaction of all and may be pleaded in bar. First 
 National Bank v. Indianapolis, Sf-c, Co., N. S. xiv. 57, 
 
 2. Two or more persons causing an injury are severally liable. Newman v. 
 Fmvler, N. S. xiv. 127. 
 
 3. A suit for a house badly built by both architect and contractor, lies against 
 architect alone. Id, 
 
 4. Refusal by owner to pay contractor is no bar to such suit. Id, 
 
. JOINT LIABILITY— JUDGE. 573 
 
 5. Several lessees who jointly use their lands for planting oysters may join 
 in an action for taking their joint property. Wooley v. Campbell, N. S. xiv. 
 128. 
 
 6. In an action of tort against two or raore separate acts not committed with 
 common purpose or in concert, will not authorize a joint recovery. Lcidig v. 
 Bucher et al., N. S. xiii. 718. 
 
 7. Plaintiff may recover against the one concerned as if he alone had been 
 Ened. Id. 
 
 8. Defendants who have not conspired or joined in committing the wrong, 
 should not be joined in same action. Id. 
 
 9. The members of a partnership are not jointly liable in an .letion for a fraud 
 committed by one of the partners. Stewart v. Levi/, N. S. viii. 601 . 
 
 10. A joint action ap;ainst seven cannot be maintained where tliere is no evi- 
 ' dence as to three. Cuok v. Mackrell, N. S. xii. 398. 
 
 11. Several parties having several rights against the same individual, cannot 
 join in an action of assumpsit against him. Woodward v. Sherman, N. S. xii. 593, 
 
 12. To maintain assumpsit for goods sold and delivered against two defendants, 
 plaintiflF must show a joint promise. Fuller v. Miller, N. S. x. 130. 
 
 13. In an action against two persons an a special agreement, plaintiff cannot 
 recover unless he avers and proves a joint undertaking. Lee v. BoUes, N. S. x. 
 413. 
 
 14. One who previously assents to the commission of an act is jointly liable 
 with tlie one committing it. Treat v. Rei'.ly, N. S. viii. 505. 
 
 JOINT OWNERS. 
 
 The owner is liable for injury done by an animal which is known to be fierce 
 or dangerous, though it does not belong to a class ferm naiura. Where such an 
 animal is the joint property of two persons, one of whom allows the other to, 
 have charge of it, both are liable to a person injured, Oalces v. Spaulding, N. 
 S. vii. 551. 
 
 JOINT-STOCK COMPANIES. 
 
 1. Authority of a majority of stockholders to vary their business. Kean v. 
 Johnson, 0. S. v. 58. 
 
 2. The principles which govern a common-law partnership are in general 
 applicable to a joint-stock company, whether incorporated or not, except so far 
 as modified by a statute or special rules of law. Tlie introduction of new mem- 
 bers into such association can hence be only authorized by joint consent ; but 
 this consent may be exercised either on each special occasion or may be delegated 
 to a particular, without power to redelegate it to an individual. The issue of 
 certificates of stock in such association, being the introduction thereinto of new 
 partners, falls within this principle. Ketchum v. The Bank, 0. S. iii. 145. 
 
 JOINT TENANT. 
 
 1. An estate made to husband and wife during coverture does not constitute 
 a joint tenancy or tenancy in common ; both are seised of the entirety. McCurdy 
 V. Canning, N. S. x. 347. 
 
 2. Neither can dispose of any part without the other's consent. Id. 
 
 3 A purchaser at sheriff's sale under judgment against the husband cannot 
 recover possession during the wife's life. Id. 
 
 JOINT TRESPASS. 
 
 May be by persons acting separately and without concert. Stone v. Dickinson, 
 N. S. ii. 444. 
 
 JONES, Hon. JOEL, Opinion as to the fisheries annexed to the shores of the 
 river Delaware, O. S. iv. 582. 
 
 'JUDGE, 
 
 1. A judge elected by the people of the territory over which he has juris- 
 diction, cannot be deprived of his authority by transferring his territory to other 
 jurisdiction. Slate v. Draper, N. S. xi 552, 
 
 2. And a judge so elected cannot be transferred to, and jurisdiction given to him 
 over, other territory where he was not elected. Id 
 
 3. The title of an officer holding an elective office comes from the votes of the 
 people, and not from his commission. Id 
 
 4. A judge of the Circuit Court of Alabama, who entered the Confederate 
 
574 JUDGE— JUD&MENT. 
 
 service of the tTnlted States, forfeited his office of judge under the state. Chit- 
 holm V. Coleman, N. S. viii. 693. 
 
 5. Under the Act of Congress any judge of the Supreme or District Court of 
 the United States may issue a writ of habeas corpus. Eoi parte Jenkins, 0. S. 
 ii. 144. 
 
 6. The great principle of the trial is that the court shall determine the law 
 and the jury the facts. Guffy v. Commonwealth, N. S. xiii. 242. 
 
 7. As to the duties of the judge in charging the jury in action for negligence. 
 Reeves v. Del., L. ^ W. Railrbcud Co., 0. S. Vi. 565. 
 
 R. Interference by, to prevent answer to an impi'oper qiiestioil. Fisher r. 
 Ronalds, 0. S. i. 810. 
 
 JUDGE'S CHARGE. 
 
 1, A judge's charge to a jury must be accurate, not only in its outline, but 
 also in its detail, or the Supreme Court of Pennsylvania will reverse on error. 
 New York Railroad v. Skinner, 0. S. i. 97. 
 
 2. A judge acts within the line of his duty, when he accompanies his answers 
 to points made by counsel with such observations as are necessary to guard the 
 jury from falling into error, where a simple affirmative or negative answer, al- 
 though strictly correct, as far as it went, might lead the jury astray. Leech v. 
 Leech, 0. S. i. 249. 
 
 JUDGE OF PROBATE. 
 
 Has no authority to revoke his own decree. Peltee v. Wilmdrthj N. S. ii. 558. 
 
 JUDGMENT. See Lien. Eecokb. 
 I. Of Judgments Genbballt. 
 
 1. Remedy for irregularity of decision. Pitt v. Damson, N. S. ii. 124. 
 
 2. Where the existence of a valid judgment is ih issue, any evidence tending 
 to show that it is illegal or void is competent. Kinsey v. Ford, N. S. ii. 441. 
 
 3. Of inferior court, on points necessary to give it jurisdiction, is final until 
 reversed by direct proceedings for that purpose. Colton v. Beardsley, N. S. ii. 
 560. 
 
 4. A judgment is strictly a contract, by specialty, but is not included in the 
 use of that word in the 20th section of the Code of 1859. Burns v. Simpson, 
 N. S. xii. 59. 
 
 5. Equitable restraint of collection of judgment — what is necessary to the ex- 
 ercise of. Clute V. Potter, N. S. ii. 187. 
 
 6. Actual notice to the purchaser would supply the defective registry. Smith's 
 Appeal, N. S. iv. 255. 
 
 7. Mere notice of a judgment ten years old will not affect a purchaser of the 
 debtor's land without actual fraudulent intent. Reynolds v. Darling, N. S. iv. 
 382. 
 
 8. May be taken to secure future advances when such is a constituent part 
 of the original agreement. Neidig, Adm'rof Neidig, v. Whiteford, N. S. viii. 695. 
 
 9. The authentication of the judgment of a court which has been abolished, 
 by the court to which its records have been transferred, is sufficient. Darrah v. 
 Watson, N. S. xiv. 56. 
 
 10. 'The fact that proceedings were begun by attachment and a personal judg- 
 ment rendered will not invalidate it, if it further appears that there was a per- 
 sonal service. Id, 
 
 1 1 . Not being served the number of days required by law, is simply a defective 
 service. Id. , 
 
 12. The courts of Iowa obtain jurisdiction over a resident of a sister state by 
 service of original proces.s. Id. 
 
 13.- New Constitution of Arkansas docs not protect judgmetit by court under 
 rebel state government. Note to Hughes v. Lttsey, commenting on Filkins t). 
 Hawkins, N. S v. 161. 
 
 14. In attachment-execution garnishee's answers are sole foundation of judg- 
 ment, and If answers set up an assignment of funds, the cause must be sent to a 
 jury. Bank v. Gross, N. S. v. 379. 
 
 15. Decree awarding money to one of several execution-creditors conclusive 
 as to all matters involved therein. Noble v. Cope, N. S. v 378. 
 
 16. Judgment rendered by a tribunal under authority of a rebel state govern- 
 ment void and execution quashed. Note to Hughes v. Litsey, commenting on 
 Filkins V. Hawkins, N. S. v. 160. 
 
JUDGMENT. 575 
 
 17. When jndgmetit in foreclosure, suit not conclusive on a party thereto. Lee 
 V. Parker, N. S. v. 191. 
 
 18. Party to a collusive divorce is bound by it. Nichols v. Nichols, N. S. xiv. 
 322. 
 
 19. A decree of divorce ■which has been acquiesced in for several years and 
 the plaintiff again married, will not be disturbed for the purpose of giving 
 alimony. Id. 
 
 20. The judgment of a court of general jurisdiction is as conclusive on the 
 parties in all the states as in the state where rendered. Id. 
 
 21. The two exceptions are : (1.) Where it appears of record, that the defend- 
 ant was not served and did not appear in person, or by attorney. (2.) If the 
 defendant appeared by attorney, the authority of the attorney may he disproved. 
 Id. 
 
 22. A judgment in trover is sometimes conclusive on others than the parties 
 to it. Spear v. Hill, N. S. xiv. 398. 
 
 23. A town cannot bring action for fraudulent pretence in obtaining a judg- 
 ment against it while such judgment is in full force. Hillsborough v. Nichols, N. 
 S. vi. 313. 
 
 24. A judgment against tenant for life who has power to consent to sale of 
 premises does not extinguish the power. Legget v. Doremus, N. S. xiv. 325. 
 
 25. Lien of judgment is subject to the power. Id. 
 
 26. It is competent to show of what a judgment is made up of by evidence 
 aliunde. Gilbert v.- Earl, N. S. xiv. 756. 
 
 27. Where a contract for money is by its terms made payable in specie or in 
 coin judgment may be entered thereon for coined dollars. Bronson v. Rhodes, 7 
 Wallace 229, affirmed ; Trebilcock v. Wilson, N. S. xi. 151. 
 
 28. A creditor by judgment, though for contemporaneous advances, is not a 
 purchaser within the recording acts, nor is he protected against a trust if he has 
 had no notice. Cadburij v. Duval, O. S. i. 105. 
 
 29. Where a judgment by default has been entered for too small a sum by 
 mistake, it may be corrected at a subsequent term, though it has been paid. Sher- 
 man v. Nixon et ah, N. S. xii. 598. 
 
 30. Bail for stay of execution on a judgment for ground-rent, who pays and 
 obtains an assignment of the judgment, does not obtain priority over a judgment 
 for arrears subsequently accrued. De Cou's Appeal, N. S. iv. 315. 
 
 31. Interest is allowable on the whole of a judgment even where costs are in- 
 cluded in it. Wetherill v. Stillman, N. S. x. 537. 
 
 32. A judgment in an Alabama court and a subsequent sale of land under that 
 judgment passes a good title to the purchaser.- Parks v. Coffee, N. S. xiv. 496. 
 
 n. Of the Entebing and Confession of Jdbgments, and herein of Jirna- 
 
 MENTS FKAUDBLENTLT CONFESSED TO DEFKAUD CrEDITOKS. 
 
 33. An irregular judgment may be reversed on error, but is good until then, 
 and an auilitor cannot disregard it. Edwards's Appeal, N. S. x. 746. 
 
 34. A confession of judgment "by defendants" in a suit against two, where 
 only one is served, is valid. Hatch v. Stitt, N. S. x. 799. 
 
 35. In an action on a judgment, the record cannot be dispensed with or sup- 
 plied by other evidence. Walton, Ex'r, v. McKesson, N. S. ix. 385. 
 
 36. Title to, recovered by deputy against bank for money collected on execu- 
 tion and deposit therein. Downer v. Bank, N. S. vi. 448. 
 
 37. Effect of sale of such judgment, by deputy. Id. 
 
 38. .In an action against all the obligors in a joint and several bond, can only 
 have judgment against all defendants jointly. Judge of Probate y . Webster, N. 
 S. vi. 818. 
 
 39. A judgment by default is conclusive of the question of jurisdiction. 
 Cooper v. Roche, N. S. xii. 325. 
 
 40. Such judgment does not settle the right of the plaintiff to recover the 
 amount stated in the cause of action ; the defendant is entitled to an inquisition. 
 
 41. In favor of or against a dead man is not a nullity. Carr v. Townsend's 
 fcfcutors, N. S. x. 201. _ _ 
 
 42. An erroneous judgment or execution is not void. Wilkmson^s Appeal, N. 
 
 S. X.' 538. „ . , 
 
 43. No one but the defendant can take advantage of an irregular execution. 
 
 Id. 
 
576 JUDGMENT. 
 
 44. A judgment by default on a service of a summons on the return-day ig 
 not void. Armstrong t. Grant, N. S. x. 604. 
 
 45. A judgment in favor of a trustee, in an action by the principal defendant 
 in another action previously begun by trustee process, is not conclusive upon the 
 question of trustee's discharge. Webster v. Adams, N. S. x. 604. 
 
 46. Whether a judgment is an executed contract. Noteto BIystone v. Blystone, 
 N. S. vi. 205. 
 
 47. Judgment fraudulently confessed to defraud debtor's creditors is good 
 between parties, and execution will be enforced. BIystone v. BIystone, N. S. vi. 
 203. 
 
 48. Judgment is an execution and merger of the fraudulent contract. Id. 
 
 49. The judgment of a court of general jurisdiction must be presumed to be 
 valid until the contrary is shown. Loring v. Po-iro, 0. S. viii. 441. 
 
 50. A party to whose use a judgment is marked of record takes precedence of 
 one to whom the instrument on which judgment is entered is assigned. Fraley's 
 Appeal, N. S. xiv. 461. 
 
 51. The practice of delivering to the plaintiff the instrument on which judg- 
 ment has been entered should be abolished. Id. 
 
 52. A married woman has no right to confess a judgment, but such judgment 
 so confessed is not void, but only voidable. Eoraback v, Stebhins, N. S. vi. 696. 
 
 53. If therefore she allows a confessed judgment to a bonS, fide creditor to 
 stand, and her property is sold, the purchaser is entitled to a good title against 
 all persons. Id. 
 
 54. It is competent to show by parol the grounds by which a verdict or judg- 
 ment was rendered. White v. Madison, N. S. ii. 663. , • 
 
 55. A judgment, recovered on default against a person admitted to have been 
 non compos mentis at time of proceedings, will be reversed on a writ of error. 
 Leach V. Marsh, N. S. ii. 22. 
 
 56. A judgment confessed or a conveyance made for an antecedent debt, by a 
 debtor in insolvent circumstances, and in contemplation of an assignment, with 
 intent to evade the Act of 1843, in regard to preferences in assignments, is not 
 avoided by the proviso in the Act of 1849, where the creditor has no knowledge 
 of, nor participated in the unlawful intent. Hutchinson v. McClure et al., 0. S. 
 i. 170. 
 
 57. Judgment given by husband to wife to secure her estate is valid. Wil- 
 liams's Appeal, N. S. iv. 440. 
 
 58. Judgment confessed by wife is void, but she may agree to revive one 
 already entered. Bruner's Appeal, N. S. iv. 254. 
 
 59. An agent of defendant in suit before justice may offer judgment. Randall 
 V. Wait, N. S. iv. 637. 
 
 60. Judgment for want of affidavit of defence may be taken on a foreign judg- 
 ment. Luchenback V. Anderson, N. S. iv. 252. 
 
 61. Equity will not relieve against a judgment suffered to go against oue by 
 negligence who had a valid defence. Robinson v. Wheeler, N. S. xii. 322. 
 
 III. Op OPENiifG, Setting Aside and Amending Judgments, and et whom 
 Judgments mat be Impeached. 
 
 62. Cannot be impeached in action upon it for want of authority of attorney. 
 Finneran v. Leonard, N. S. iii. 506. 
 
 63. The order of court, denying a motion to cancel a judgment, entered upon 
 confession, as having been paid, is conclusive between the parties. Dwighl v. 
 St. John, N. S. iii. 59'. 
 
 64. The courts of Pennsylvania have the powers of the Court of Chancery to 
 relieve against inequitable judgments. Cochran v. Eldridge, N. S. v. 162. 
 
 65. The usual practice is to open the judgment and let the defendant into a 
 defence on the merits, and on the trial of the issue, the defendant may, show 
 fraud in obtaining the judgment. Id, 
 
 66. The power extends to judgments on awards of arbitrators, notwithstanding 
 the statutory remedies in cases of compulsory arbitration. Id. 
 
 67. Judgment found void in whole or in part, is void only as to attacking 
 parties and valid as to others. Shick's Appeal, N. S. v. 253. 
 
 68. By confession — fraud — informality — requisite form under New York Code. 
 Miller V, Earle, N S. ii. 57 ; Neusbaum v. Keim et at., N. S. ii. 59. 
 
 69. Power of Supreme Judicial Court in New Hampshire to vacate, at a sub- 
 sequent term. Judge of Probate v. Webster, N. S. vi. 318. 
 
JUDGMENT. 577 
 
 70. Where part of a judgment is for an amount for wliich the defendant gave 
 his notes, which were not due when the action was begun, a motion to set aside 
 the judgment will be entertained. Howies v. Boare, N. S. xi. .^95. 
 
 71. The opening being discretionary cannot be reviewed. Breden v. Odliland, 
 N. S. xi. 267. 
 
 72. The court has no power to set aside a judgment regular on its face. Id. 
 
 73. There is no limitation to the power of a court to open a judgment by de- 
 fault. Id. 
 
 74. A void judgment may be set aside at any time on motion of the defendant. 
 Forman v. Scott, N. S. xii. 60. ■ 
 
 75. A judgment obtained by wilful perjury may be vacated. Laithe v. Mc- 
 Donald, N. S. X. 538. 
 
 76. Where there is a valid writ and levy, the judgment of a court in attach- 
 ment suits, cannot bo held void collaterally in other suits. Cooper v. Reynolds, 
 N. S. X. 62. 
 
 77. In a scire facias on a judgment, the defendant cannot go behind the ori- 
 ginal judgment. Carr v. Townsend's Ex'rs, N. S. x. 201. 
 
 rV. Of Impeaching Judgments Collaterally. 
 
 78. The judgment of a court of superior jurisdiction may be collaterally 
 attacked upon the ground that the court by which it was rendered had no juris- 
 diction either of the subject-matter or of the person of the defendant, or both. 
 Hahn v. Kelly and Morse, N. S. viii. 122. 
 
 79. Such facts mast appear afErmatively on the record. Id. 
 
 80. The original judgment or decree of a court having jurisdiction, cannot bo 
 disturbed in a co-ordinate tribunal, nor in a collateral action. Amory v. Amory, 
 N. S. xii. 38. 
 
 81. May be assailed collaterally for fraud, by persons not parties or privies to 
 it. Spicer et al. v. Waters, N. S. xiii. 260. 
 
 82. A judgment is not a written instrument within the statutes requiring copies 
 in pleading. Brooks v. Harris, N. S. xiii. 262. 
 
 83. A judgment without personal service on the defendant is not evidence of 
 his liability outside of the state authorizing it. Board of Public Works v. Co- 
 lumbia College, N. S. xiii. 329. 
 
 84. Judgment on a note or contract operates as a merger of it, and is a bar to 
 second suit on the note. Eldred v. Bank, N. S. xiii. 330. 
 
 85. Where one of the defendants, in an action on a joint contract, dies before 
 judgment, and the judgment is taken against all the defendants, without any 
 suggestion of his death, or making his representatives parties, such judgment is 
 not void, but merely voidable, and is a determination of the action, within the 
 meaning of sections 218 and 219 of the Code, authorizing an action by the plain- 
 tiff in pttachment against the garnishee. Swasey v. Antrim, N. S. xiii. 577. 
 
 86. A court has power to correct a clerical error in entering its judgment. 
 Darning v. Burkhardt, N. S. xiii. 651. 
 
 87. A judgment must be considered as entered during the term at which the 
 cause was tried. Id. 
 
 88. At a subsequent term, though the court cannot review the judgment on the 
 merits, it may correct a mistake in entering it, so as to make it conform to its 
 decision. Id. 
 
 89. The court cannot vacate a judgment after the term at which it was entered. 
 Scheer v. Keown, N. S. xiii. 711. 
 
 90. It may set aside a judgment at the same term. Id. 
 
 91. It may amend a judgment so as to correct clerical errors or mistakes of the 
 clerk. Id. 
 
 92. It may vacate at a subsequent term a void judgment. Id. 
 
 93. The power of a court to alter, amend or vacate a judgment ends with the 
 term. Pettus v. McClannahan, N. S. xiv. 646. 
 
 94. Void judgments may be set aside after the term, but the invalidity must 
 appear of record. Id. 
 
 95. A court has no power to set aside a valid judgment at a subsequent term. 
 Quaw V. Lameraux et al., N. S. xiv. 706. 
 
 96. Even if the judgment contain error that would be fatal on appeal, it can- 
 not be vacated at a subsequent term. Id. 
 
 97. A county court has the power within certain limits to revise its judgments. 
 Smith V. Eaward, N. S. viii. 501. 
 
 37 
 
578 JUDGMENT. 
 
 98. Refusal of court to open judgment on atrial of scire facias to revive not 
 reviewable. Henry v. Brothers, N. S. iv. 638. 
 
 99. Judgments regularly obtained are conclusive upon parties and privies, and 
 cannot be impeached collaterally. Kimball v. Town of Newport, N. S. xiv. 757. 
 
 100. Case will not lie for arrest and imprisonment on a judgment merely void- 
 able, but not void. Id. 
 
 101. A judgment cannot be assailed in the bankrupt court, but the assignee 
 and creditors must resort to the state court to test its validity. Matter of Burns, 
 N. S. yii. 115. 
 
 102. Judgment on an indictment containing several counts will not be ar- 
 rested on a general verdict if one count is bad. Glines v. Smith, N. S. ix. 518. 
 
 V. Lien op Jcdsments Geneeallt. 
 
 103. Judgments of the courts of the United States are liens in all cases where 
 those of state courts are. Ward v. Chaniberlin, N. S. iii. 53. 
 
 104. Mortgage for purchase-money recorded after judgments is entitled to 
 prioritv, where judgment-creditor had notice of the mortgage. Britton's Appeal, 
 N. S. iii. 573. 
 
 105. Lien of transferred judgment continues for five years from entry in 
 county to which it is removed. Knauss's Appeal, N. S. v. 253. 
 
 106. Where A. and B., who were equal owners as tenants in common of four 
 tracts of land, made quit-claim deeds to each other of portions of said land of 
 
 - about equal value, dated October 23d 1856, intending thereby to carry into effect 
 a parol agreement to partition such lands, the deed from A. to B. being duly re- 
 corded March 4th 1857, but that from B. to.A. not being. recorded until the 28th 
 of January 1862, and in the mean time, on the 6th of May 1857, a judgment 
 was entered in favor of C. against B. : Held, that, under the registry laws of 
 Illinois, requiring " all deeds and mortgages, and other instruments of writing 
 relating to or affecting the title to real estate," to be recorded in the county where 
 situated, and declaring that "all deeds, mortgages, and other instruments of 
 writing, which are required to be recorded, shall take effect and be in force from 
 and after the time of filing the same for record, and not before, as to all cred- 
 itors and stibsequent purchasers, without notice," and that " all such deeds and 
 title-papers shall be adjudged void as to all creditors and subsequent purchasers, 
 without notice, until the same shall be filed for record," C.'s judgment was a 
 lien upon an individual half of the land allotted to A. in the parol partition, 
 such partition having been made before the judgment was rendered ; whereas, 
 had it been made after the rendition of the judgment, the rule might haye been 
 otherwise. Manley v. Pettee, N. S. v. 486. 
 
 107. Where A., before the parol partition, had given a mortgage upon his 
 individual interest in the lands held in common, but in terms covering the whole 
 of said lands, to D., and on the day the partition-deeds were executed I), had 
 released from the nioi;tgage the lands allotted to B., in consideration of one dol- 
 lar " and other good and valuable considerations," the release containing the 
 following clause : "Hereby intending to release the interest of B. in the lands 
 embraced in said mortgage, and retain as security for the payment thereof that 
 portion of said lands now owned by A,;" Held, that, as said clause related to a 
 different interest from that claimed to be bound by the lien of the judgment, to 
 wit, to an interest formerly held by A., the mortgagor, in the lands allotted to 
 B., and not to an interest of B. in the lands allotted to A., it could not be con- 
 strued to give notice tb C. of a partition of the lands between A. and B. Id. 
 
 108. No one is bound by a judgment or decree, as being privy thereto, unless 
 he derives his title to the property in question subsequent to and from a party 
 bound by the judgment. Hunt v. Haven S/- A., Administrators, N. S. xii. 592. 
 
 109. The aiding of another in a suit and employing and paying his counsel, 
 does not make one a privy to the suit. Id. 
 
 110. The lien of the judgment is not disturbed thereby. Bredemr. GUliland, 
 U. S. xi. 267. 
 
 111. Effect of a general judgment on an issue in bajr. Sheldtm v. Edwards, N. 
 S. vi. 381. 
 
 112. Against vendor in an executory contract for sale of land, is subject to 
 equitable rights of vendee, and is not a lien agajnst the unpaid purchase-money 
 in his hands until actual notice of the judgment. Smith v. Gage, N. S. ii. 438. 
 
 113. Where the docket of the justice does not sufSciently recite the judgment, 
 the premises cannot be restored. WickerAham v. fforleno., ]S. S, xii. 598. 
 
JUDGMENT. 579 
 
 114. A judgment has precedence ever an unrecorded mortgage. Guiicauy. 
 Wisely, N. S. ix. 124. 
 
 115. In an action of ejectment, vfhere the plaintiff's title is that of a voluntary 
 purchaser under an execution, void because the lien of the judgment had expired, 
 and the title of the defendant is that of a bonS. fide purchaser from the debtor 
 during the continuance of the lien, it is not competent for the plaintiff to prove 
 that the defendant promised the creditor, under whose execution the land was 
 sold, to pay the judgment, and that he did not do so, in consequence of whiqh 
 the lien was suffered to expire. The fact, if proved, would not extend the lieu 
 of the judgment. Norris v. Jackson, N. S. ix. 421. 
 
 116. The lien of a judgment on real estate is co-extensive with the limits of 
 the county where it is rendered. Kinney v. Knoebd, N. S. ix. 716. 
 
 117. For want of plea in an action on a valued policy of insurance, is final,' 
 and a lien, though damage.^ are not assessed. Sellers v. Burk, N. S. iv. 441. 
 
 118. Judgment signed in firm name, but first names of partners not set out 
 on index, is not a lien against subsequent purchasers or lien-cieditors. Smith's 
 Appeal, N. S. iv. 255. 
 
 119. Lien of, upon real estate as against persons in possession under a parol 
 sale. See Patton v. Borough, N. S. i. 628. 
 
 120. Where a judgment is given for a sum certain, but really to cover liabilities 
 incurred and advanced and advances to be made, if there be record notice of the 
 amount actually due, before the intervening rights of lien creditors have attached, 
 such judgment has priority of lien, to the extent of the advances actually made 
 or liabilities. Kitnnybacker v. Charles, 0, S. i. 634. 
 
 121. Where a will directs executors to sell land and apply the proceeds to the 
 support and education of children, according to the judgment of the executors, 
 and divide the money among all the testator's children equally ; this breaks the 
 descent, and the children have no such interest in the land as is subject to execu- 
 tion. Campbell v. King, O. S. i. 122. 
 
 122. When lien upon homestead. The subject fully discussed, N. S. i. 713 ; 
 and cases cited. 
 
 123. Lien of — what it binds — subject discussed, 0. S. v. 513. 
 
 124. A valid judgment and execution must be shown by a party who seeks to 
 support a title to land under a sheriff's deed for the same. Gaugh v. Greenlaws, 
 O, S. vii. 591. 
 
 125. In a bill in equity by a judgment-creditor to set aside a conveyance of 
 property by the judgment-debtor, as void, and to subject such property to execu- 
 tion on the judgment, it is not necessary to be shown that the complainant has 
 issued an execution on his judgment and had it returned nulla bona. Loring v. 
 Pairo, 0. S. viii. 441. 
 
 VI. When a Judgment ceases to be a Lien on Land, and oi' the Peo- 
 
 CEEDINGS XO EEVITB A JUDGMENT. 
 
 126. In support of a plea of satisfaction to a scire facias to revive ajudgment, 
 evidence is admissible of an agreement made prior to the judgment as to its 
 mode of discharge. Dpwney v. Forrester, N. S. xi. 533. 
 
 127. Evidence on trial of scire facias to revive. Henry y. Brothers, N. S. iv. 
 638. 
 
 128. An auditor cannot declare a judgment on an amicable scire facias void 
 and no lien, for want of a stamp. Edwards's Appeal, N. S. x. 746. 
 
 129. Section 422 of Code of Ohio, providing for ajudgment ceasing to become 
 a lien, does not apply to a decree for the sale of specific property. Beaumont v. 
 Herrick, N. S. xiv. 194. 
 
 VII. Or THE Assignment of a Judgment. 
 
 130. Assignment of judgment on record is not constructive notice to debtor. 
 Henry v. Brothers, N. S. iv. 638. 
 
 131. QutEre, if an attorney can assign a judgment after payment. He cannot 
 assign it to one who pays on compulsion, in derogation of his client's rights. 
 £)e Cou's Appeal, N. S. iv. 315. 
 
 132 An assignment of verdict and judgment to be entered upon it to the 
 attorney is valid. Mackeyy. Mackey, N. S. iv. 437. 
 
 133. The judgment-creditor is a necessary party to an action by the assignee 
 of a judgment, whore the judgment-debtor sets up an indebtedness of the judg- 
 ment-creditor accruing before the assignment. Gildersleeve et al. v. Burrows et 
 a/ , N. S. xiv. 126. 
 
580 JUDGMENT. 
 
 134. Qu<ere, if the insolvency of such judgment-creditor must not be alleged, 
 Gildersleeve et al. v. Burrows et al., N. S. xiv. 126. 
 
 Vm. Or THE Release, Patmekt and Satisfaction or a Judgment. 
 
 135. A release by the assignor of a judgment to the debtor will discharge the 
 latter, where he has had no notice of the assignment, and it has not been marked 
 on the record. Galluher v. Caldwell, 0. S. ii. 181. 
 
 136. A debt in the hands of an assignee may be reduced by set-off of claims 
 against the assignor, purchased by the debtor after the assignment, but before 
 notice thereof. Id. 
 
 137. The holder of a judgment cannot legally bind himself by any species of 
 executory agreement to accept a less sum than is actually due thereon and dis- 
 charge the judgment. Garvey v. Jarvis et al., N. S. ix. 124. 
 
 138. In an action, under statute, against a judgment-creditor for not entering 
 satisfaction of the judgment, the record showed an execution on the judgment, a 
 rule absolute on the creditor and the sheriff to show cause why the debtor should 
 not pay a certain sum in full satisfaction of the judgment, interest and costs, 
 and a return of the execution by the sheriff as " stayed by the order of court." 
 There was no record-evidence of the actual payment of the money, though it 
 was in fact paid. Held, that these facts did not constitute such satisfaction on 
 the record of the judgment as the statute demands. Allen v. Conrad, N. S. vi. 
 23. 
 
 139. The payment of a judgment to the attorney of record of the prochein 
 ami of an infant is a good discharge of the judgment. B, ^ 0. Railroad Co. 
 V. Fitzpalridc, N. S. xii. 257. 
 
 140. Effect of reversal of judgment against principal upon judgment against 
 surety. United States v. Allshury, N. S. vi. 575. 
 
 141. A judgment or any matter of record cannot be discharged on what Would 
 seem a good accord and satisfaction in other cases. Garvey v. Jarvis, N. S. ix. 
 124. 
 
 142. A judgment for divorce not extended upon the records of a court may be 
 proved by a certified copy of the docket-entry of the libel. Jay v. East Liver- 
 more, N. S. ix. 197. 
 
 , IX. Effect of Judgment obtained in anothee State. i 
 
 143. A judgment of one court will not be enforced by another, unless it is 
 certain in itself, or is capable of being made so by intendment or presumption. 
 Fritsj V. Fisher, 0. S. iii. 243. 
 
 144. It seems that a defence to the judgment of another state on the ground 
 of want of notice should be pleaded, and that when it is not, the judgment will 
 not be held invalid merely because the record fails to show that notice was given. 
 B. 
 
 145. When a ship has been seized under a foreign attachment issued out of a 
 state court, and is in the hands of the sheriff, a, subsequent seizure by the marshal, 
 under an attachment fcr mariner's wages issued out of the District Court of the 
 United Sliates, can operate only as a contingent seizure, and depends for its effi- 
 cacy on the event of the ship or its proceeds, or part of them, being afterwards 
 discharged from the seizure under the process of the state court. Carryl v. 
 Taylor, 0. S. iii. 395. 
 
 I 146. There is no such superiority in the United States court, or in its attach- 
 ment for mariner's wages, as'entitles such a process to override and frustrate the 
 previous seizure and the process of the state court, and a sale under it while the 
 ship remains in the custody of the state court, or after the state court has sold it 
 under the foreign attachment proceeding, is void for want of jurisdiction of the 
 subject-matter. Id. 
 
 147. In a harmonious system of government the same property may be the 
 subject of several seizures on writs from different courts, but all after the first 
 seizure must be subordinate to it and contingent, and can take effect only after 
 the first seizure has been satisfied or released. Id. 
 
 148. It is an essential rule of harmony that among co-ordinate jurisdictions 
 that one is exclusive which is first attached, td. 
 
 149. Where in the record of a judgment of a court of another state a capias 
 ad respondendum had been issued for the defendant, and was returned "executed 
 personally," it was held to be sufficient primS. facie to show jurisdiction of the 
 person of the defendant. Reid v. Boyd, 0. S. iv. 445. 
 
 150. Judgment in a foreign court, effect of. Casirique v. Behrens, N. S. i. 54. 
 
JUDGMENT. 581 
 
 151. The record of n judgment obtained in a Probate Court of Ohio in a pro- 
 ceeding upon habeas corpus, is within the provisions of the Act of Congress of 
 26th May 1790, providing for the authentication of records from sister states. 
 State of Ohio ex rel. Walter Binchman (o minor') hj his next friend, David H. 
 
 ' Taylor, v. Morgan Ilinchman, 0. S. v. 424. 
 
 152. In an action brought in Pennsylvania upon a judgment, certified under 
 said act as a decision of the Supreme Court of the United States, the courts of 
 this state are bound to take notice of the local laws of the sister state in the same 
 manner as that court would do on a writ of error to the Supreme Court of this 
 state. Id. 
 
 153. The Act of Congress does not forbid the union of the offices of judge and 
 clerk in the same person ; and it is no objection, therefore, to the attestation and 
 certificate of a record from a sister state, that they are both given by the same 
 person, where the laws of that sister state provide for such union. Id. 
 
 154. The Act of Congress does not preclude any other evidence of the authen- 
 ticity of a record of a sister state, which the courts of another state may deem 
 competent. Id. 
 
 155. Where the record itself shows that the person giving the certificate must 
 necessarily have been " the judge, chief justice, or presiding magistrate" of the 
 court, it is not material or requisite to the validity of the authentication of a 
 record, tinder the Act of Congress, that the language of the certificate itself 
 should exclude every other supposition. Id. 
 
 156. Judgments of justices of the peace in one state sought to be made evi-- 
 dence in another — suggestions as to mode of authenticating. 0. S. v. 577. 
 
 157. The decree of a state court having jurisdiction of a suit and of the par- 
 ties to it, is conclusive of the matters determined, and cannot be impeaclied 
 in the courts of the United States, 'nor of another state. Amorij v. Amory, N. S. 
 xii. 38. 
 
 158. The Circuit Courts of the United States are not constituted to review and 
 reverse the proceedings and judgments of state courts. It is the duty of such 
 courts to give full faitli and credit to the judicial proceedings and records of state 
 tribunals. Id. 
 
 159. An action can be maintained on a domestic judgment in Kansas. Burns 
 V. Simpson et al., N. S. xii. 59. ^ 
 
 160. The New York Act in respect to authentication of foreign, relates to 
 provincial as well as imperial governments. Lazier v. Westcott, U. S. iii. 
 501. 
 
 161. How an exemplificatioii of such judgment may be proved and received 
 in evidence. Id. 
 
 162. A judgment in a former suit is no bar to another action, where the point 
 relied on as adjudicated was ruled out of the defence in the first suit. Yates v. 
 Lyon, N. S. xi. 331. 
 
 163. A copy of the judgment should be filed with the petition, and the neglect 
 to do so must be taken advantage of by motion and not demurrer. Burns v. 
 Simpson, N. S. xii. 59. 
 
 164. The judgment of another state will be presumed to be valid and binding 
 in that state, until the contrary is shown. French v. Pease, N. S. xii. 124. 
 
 165. The judgment of a state which has withdrawn from the Union must be 
 authenticated on its return, as other state records. Steere v. Tenney., N. S. xi. 
 660. 
 
 166. Records of a foreign government are authenticated as such only during 
 its existence as a foreign power. Id. 
 
 167. The judgment of a court of another state, if properly authenticated, has 
 the same conclusiveness in a foreign state as at home. Wetherill v. Stillman, N. 
 
 S. X. 536. 
 
 1 68. A judgment insufficently authenticated cannot be read in evidence. Id. 
 
 169. Conclusiveness of foreign judgments, discussed. N. S. iv. 7. 
 
 1 70. Form of authentication of judgment in another state. Morris et al. v. 
 Patchin, N. S. ii. 248. 
 
 171. Judgments of other stKtes, effect of, discussed. O. S. iii. 204 ; and see 
 i^n'<2 V. KsAer, O. S. iii. 243. ,., ,„ 
 
 172. Judgments of inferior courts of other states. Id. 248. 
 
 173 Judgment of a foreign court conclusive on the merits. Lazier y. West- 
 colt, N. S. iii. 501. 
 
582 JUDGMENT. 
 
 174. The judgment of a hoard of officers having legal authority to pass on 
 claims will be conclusive in action in another state. Michigan T. Pkcmix Bank, 
 N. S. ii. 565. 
 
 175. In an action on a judgment of another state the defendant may show that 
 he was not served. Knowles t. Gas ^ Coke Co., N. S.^xiii. 591. 
 
 176. In a suit on a foreign judgment, objections to evidence to prove the 
 record cannot be sustained. Maxwell v. Stewart, N. S. xiv. 459. 
 
 177. Nor is an objection to the jurisdiction, because the record shows the case 
 was tried without a jury, valid. Id. 
 
 178. Judgment of other states. See Authentication. 
 
 X. Op the Plea of fobmek Judgment foe same Cause of Action. 
 
 179. Eecovery of, upon a contract, is no bar to a separate action for the deceit 
 originally practised upon the plaintiff to induce him to become a party to it. 
 Warner v. De Baun, 0. S. iii. 442. 
 
 180. A judgment of foreclosure on the mortgage against one member of a 
 firm is a bar to any suit against his partners who were jointly liable. Crosby v. 
 Jerolcrman, N. S. xii. 665. 
 
 181. A judgment to act as an estoppel must be upon the same sntiject-matter 
 and between the same parties. McKinzie v. B. S/- 0. Railroad Co., IS, S. viii. 
 251. 
 
 182. The judgment of a court'of competent jurisdiction is an estoppel as to 
 all matters put in issue by the pleadings. Jackson v. Lodge, N, S. viii. 697. 
 
 183. A person suing for unpaid salary and receiving judgment for one month's 
 salary, it will not be a bar to an action for salary subsequently coming due. 
 Suniington v. 0. Railroad Co., N. S. vii. 143. 
 
 184. The pendency of an attachment suit in another state is no bar to an 
 action in New York, although a judgment there might be. Osgood v. Maguire, 
 N. S. xi. 191. 
 
 185. A judgment of the civil tribunal establislied during the late war in Ten- 
 nessee may be pleaded as a bar to an action after the war. Sefferman v. Porter, 
 N. S. ix. 41. 
 
 186. Judgment in trespass for taking down the gate is no bar to an action 
 for the obstruction. Connerg v. Brooke, N. S. xiii. 399. 
 
 XI. Effect (If Judgment entered wheke there is no Service of Summons 
 OR Notice to Defendant. 
 
 187. A judgment against a party not served with a summons is erroneous. 
 Moore V. Wade, N. S. xi. 396. 
 
 188. It is not necessary to aver personal service in such action. Bums v. 
 Simpson, N. S. xii. 59. 
 
 189. Absolutely void, if it appear by inspection of record to have been ren- 
 dered without notice to defendant. Id. 
 
 190. In one state, founded upon attachment of property,. without defendant's 
 appearance, who is a non-resident thereof, cannot be enforced in another state. 
 Price V. Hickuk, N. S. vi. 714. 
 
 191. Qucere, as to validity of judgment against a resident, temporarily absent, 
 without service. Id. 
 
 XII. Effect of Want of Jurisdiction. 
 
 192. One judgment-creditor is not entitled to have another judgment set aside 
 for defects not affecting the jurisdiction of the court, where there is no fraud. 
 Gerev. Oundlach, N. S. ix. 716. 
 
 193. The effect which shall be given to a decree of divorce obtained in 
 Indiana, in New' York, depends on the jurisdiction of the court making the 
 decree. Hoffman v. Hoffman, N. S. ix. 262. 
 
 194. Court must have complete jurisdiction to render. Railroad Co.y. Weeks, 
 N. S. vi. 188. 
 
 XIII. Liability op OppiciiE in Cektipting on Search that Premises a.eb 
 Clear. 
 
 195. The county clerk is liable for damages resulting from errors and mis- 
 takes in his searches. Kimball v. Connolly, N". S. vi. 598. 
 
 196. But the damages must be the direct consequence of such error or mis- 
 take. Id. 
 
JUDGMENT— JURISDICTION. 583 
 
 197. Where fhe purchaser of the search takes no action, parts with nothing 
 of value, and is put in no worse condition by relying upon the search than he 
 was before, he has no claim for damages. Kimball v. Connolly, N. S. vi. .598. 
 XIV. DiSTKiBUTiON or Fund in hands of Sheriff. 
 
 19S. In distribution of proceeds of sheriflf's sale, only those creditors asking 
 issue can hare benefit therefrom. Snick's Appeal, N. S. v. 253. 
 
 199. Trustees for the payment of debts under a codicil to a will conveyed 
 land to D., the testator's widow and executrix, who had been given a jife-estate 
 therein by the will. The conveyance was nominally for value, but in fact no 
 consideration passed, and it was merely made for the purpose of vesting the 
 legal estate in D., to enable her to raise money to pay the testator's debts. The 
 widow gave a mortgage on the property, under which it was sold : Hild, that the 
 land was bound by the trust in the hands of T>., and that her judgment-creditors, 
 standing in no better position than herself, were not entitled to be paid out of 
 the proceeds remaining after the payment of the mortgage, as against the cred- 
 itors of the testator. Cadbury v. Duval, 0. S. i. 105. 
 
 JUDICIAL CHARACTER— leading article upon the subject. 0. S. iii. 321. 
 
 JUDICIAL SALE. 
 
 1. Title of purchaser, who has paid purchase-money, though security not en- 
 tered by administrator. Dixey's Executors v. Laning, N. S. v. 127. 
 
 2. Decree confirming sale can only be declared void on appeal therefrom. Id. 
 
 3. Gives no implied warranty of title. Puckett v. United States, 0. S. iv. 459. 
 
 JURISDICTION. 
 I. Generally. 
 
 1. A defendant cannot be called upon to answer two different tribunals for the 
 same offence. Commonwealth v. Frazee, 0. S. v. 167. 
 
 2. It is an essential rule of harmony that among co-ordinate jurisdictions that 
 one is exclusive which is first attached. Carryl V. Taylor, O. S. iii. 395. 
 
 3. Jurisdiction of state court to seize vessel ; subsequent seizure and sale by 
 United States marshal, under a paramount lien, will pass title. Wall v. Royal 
 Saxon, O. S. ii. 324. 
 
 4. Order of delivery up of money found on person of prisoner. The judge 
 refused to make an order for the delivery to a prisoner of money found on his 
 person ; for, semble, neither judge nor justice of the peace has power to make such 
 an order. Reg. v. Price, 0. S. i. 373. 
 
 5. The power to naturalize is made a judicial power by the Act of Congress. 
 Ex parte Frank Krunoles, O. S. iv. 588. 
 
 6. Time to plead to the jurisdiction of a court of equity. Nicholson v. Pine, 
 O. S. iv. 636. 
 
 7. Jurisdiction of superior courts presumed. Fritz v. Fisher, 0. S. iii. 246. 
 
 8. Jurisdiction of inferior courts must be shown by the record. Id. 248. 
 
 9. A court possesses power and jurisdiction to determine whether it has au- 
 thority to entertain a particular controversy, although its decision and the law be 
 that it has no such authority, and it therefore dismisses the writ. Such a question 
 may be presented by demurrer, and its decision must be a judgment. King v. 
 Poole, N. S. i. 632. 
 
 10. Limits between state and national — subject discussed. N. S. vi. 193. 
 
 11. Fact that property is out of jurisdiction of court, no objection to court 
 making decree, where parties are citizens and appear regularly. Wood v. 
 Warner, N. S. vi. 570. 
 
 12. Conflict of — subject discussed. 0. S. ii. 321. 
 
 13. An order of attachment issued by the clerk of the court on an insufficient 
 aflidavit, is in effect void for the want of jurisdiction. Amsinck v. Harris, N. S. 
 vi. 100. 
 
 14. Decree in equity is in personam, and hence such court may deal with con- 
 tracts relating to land not within the jurisdiction of court. Wood v. Warner, N. 
 S. vi. 571. 
 
 15. Court before hearing may require satisfactory evidence that parties not 
 within jurisdiction have actual knowledge of bill against them. Lawrence v. 
 liokes, N. S. vi. 248. 
 
 16. Court must have complete jurisdiction to render judgment. Railroad Co. 
 T. Weeks, N. S. vi. 188. 
 
584 JURISDICTION. 
 
 17. Quaere, as to valiiiitT of judgment against a resident temporarily absent 
 without service. Price v. Hickolc, N. S. vi. 714. 
 
 II. Of United States ConRTS. 
 
 18. Jurisdiction of Federal over state courts ; discussion of. O. S. it. 129. 
 
 19. Jurisdiction of United States courts in slave cases. Remarks on Scott v, 
 Sandford, O. S. vii. 321. 
 
 20. A county, as a municipal corporation, may be sued in the courts of the 
 Uni^pd States. The holder of a coupon bond, payable to bearer, being a citizen 
 of a different state from the defendant's, and entitled to sue in the courts of the 
 United States, though the previous holder of the bond might no,t have been so 
 entitled to sue. McCoy v. County of Washington, 0. S; vii. 193. 
 
 21. Jurisdiction of Federal courts as to suits for interest on municipal bonds. 
 See Clarke V. City, 0. S. iv. 591. 
 
 22. The assignee of such bonds cannot maintain a suit in his ovrn name, there, 
 being no law in the state authorizing it. Such bonds do not, by assignment to 
 bearer, assume the character of negotiable paper. Id. 
 
 23. The Federal courts are excluded from the jurisdiction of suits upon such 
 bonds, issued to a corporation or citizen of the same state of the obligor, by 
 sect. 11 of the Act of Congress of 1789, to establish the judicial courts of the 
 United States. Id. 
 
 24. A court of the United States has no jurisdiction to restrain by injunction 
 the erection of a bridge over a navigable river lying wholly within the limits of 
 a particular state, where such erection is authorized by the legislature of the state, 
 though a port of entry has been created by Congress above the bridge. Milnor v, 
 New Jersey Railroad Co., 0. S. vi. 6. 
 
 25. Upon the high seas every vessel, public and private, is, for jurisdictional 
 purposes, a part of the territory of the nation where it belongs ; and an offence 
 committed on board of it is an offence against the sovereignty of that nation. 
 But where a private ship enters a foreign jurisdiction, it becomes, with all on 
 board, in the absence of treaty stipulations to the contrary, subject to the 
 municipal laws and control of the country it visits. People v. Tyler, 0. S. viii. 
 403. 
 
 26. When a legislature out of abundant caution enu.iierates a great number of 
 possible places, and punishes crimes committed in any of them, there is no rule 
 of construction which requires the law to be regarded as an assertion that there 
 are such places within the jurisdiction. It does not, therefore, necessarily fol- 
 low, because Congress, in the Crimes Act of 1857, provided for the punishment 
 of offences upon bays, creeks, havens, and rivers, not within states, nor forming 
 a part of the high seas, that the existence of such within the admiralty jurisdic- 
 tion must be assumed. Id. 
 
 27. The said Act of 1857, being amendatory and supplementary to other acts 
 of identical extent, commencing in 1790, it is not to be supposed that it was in- 
 tended to use these terms in different senses at the different periods. And, as 
 there were, at the date of the first act, navigable waters open from the ocean, 
 not admitted to have been within the exclusive jurisdiction of any particular 
 state, and as, upon the Pacific coast, we have still some waters of this descrip- 
 tion, there is no necessity to go beyond our own territory to satisfy the terms of 
 the act. And the jurisdiction referred to, by the language used, being a local 
 one, referring to fixed natural locality, and not satisfied by a vessel, the claim 
 of jurisdiction should not be extended into foreign ports, unless such an inten- 
 tion is clearly expressed in the act. Id. 
 
 28. As the states lying upon the lakes and their connecting waters extend to 
 the national boundary, and their jurisdiction is co-extensive with their territory 
 and legislative powers, the said Crimes Act of 1857, if it applies at all to those 
 waters, can only take effect within the United States, and within British waters. 
 Id. 
 
 29. As a general principle, the criminal laws of no nation can operate beyond 
 its territorial limits, and to give any government or its judicial tribunals the 
 right to punish any act or transaction as a crime, it must have occurred withm 
 those limits. The exceptions to this rule relate to crimes which are peculiarly 
 injurious to the rights or interests of the nation or of its subjects, and which, if 
 committed by its citizens or subjects, may be punished wherever committed ; as 
 in the case of treason committed abroad, or criminal acts on the part of the 
 crews or passengers of its ships in a foreign port, whereby its commerce or 
 
JURISDICTION. 585 
 
 its pacific relations with other powers would be endangered. But those exceptions 
 to the general rule of the locality of crimes are never understood to be included 
 in the general provisions of criminal statutes, but require to bo specifically men- 
 tioned and defined. People v. Ti/ler, 0. S. viii. 403. 
 
 30. The territory of a state or nation includes as a part of its domain the lakes 
 and rivers which lie within its limits. And these waters, being thus susceptible 
 of appropriation as territory in the same way as the land, are in like manner 
 capable of division, by which a part may be appropriated by one adjoining nation 
 and a part by another ; and when so divided, the part belonging to each nation 
 is as completely a part of its territory as the whole lake or river, if wholly 
 
 . within its limits. Id. 
 
 31. The United States and Great Britain having in this manner, by the treaty 
 of 1783, divided and appropriated the lakes and their connecting waters, the 
 courts of neither, while this treaty remains in force, can for jurisdictional pur- 
 poses, and especially for criminal jurisdiction, consider the portion of these 
 waters within the limits of the other as difl^ering in any respect from the lands. 
 The treaty of 1842, conceding to the vessels, &c., of both nations a right of 
 passage through the channels and passages thus appropriated, does not deprive 
 either of that complete and exclusive jurisdiction over that part of the lakes and 
 rivers on its side of the line which any nation may exercise upon land within its 
 acknowledged limits. Id. 
 
 32. The said Crimes Act of 18.57 was not understood or intended by Congress 
 to extend to any waters not essentially maritime ; much less to a river in the 
 interior of the continent not navigable from the ocean ; and least of all to a 
 portion of that river within the territory and exclusive jurisdiction of a foreign 
 sovereignty. Id. 
 
 33. Nor was the said Crimes Act of 1857 intended to go beyond the class of 
 assaults made manslaughter under the former statutes to which it was amenda- 
 tory and supplementary ; or to do more than provide for the case of death on 
 land, resulting from assaults which were already made punishable when death 
 resulted at the place where the fatal blow was given. Id. 
 
 34. And, therefore, manslaughter committed by a mortal blow given on the 
 river St. Clair, beyond the boundary line between the United States and the 
 province of Canada, and within a county in i,aid province, from which blow 
 death ensued on land, it is not within the intent and meaning of the said act, 
 though the blow was given on an American vessel. Id. 
 
 35. The subject of admiralty jurisdiction over the lakes and navigable waters 
 connecting them, considered, and the case of the Genesee Chief (12 How. 443) 
 commented on, per Christiancy, J. Id. 
 
 36. The admiralty jurisdiction over the said lakes and navigable waters con- 
 necting them, and the constitutional validity of the Act of Congress of Feb- 
 ruary 25th 1845, relating to the saine, considered and denied, per Manning, J. 
 Id. 
 
 III. Op State Courts. 
 
 37. Congress cannot confer any judicial power upon a state court. Clarice v. 
 Citi/ of Janesville, 0. S. iv. 591. 
 
 38. The provision of the Constitution of the United States which gives Con- 
 gress the power to establish " an uniform rule of naturalization" is construed to 
 mean that the rule when established shall be executed by the states. Id. 
 
 39. The legislature of California has by express enactment conferred juris- 
 diction on the district courts of the state to grant naturalization according to 
 rules established by Congress. Id. 
 
 40. A state may waive its right to exercise judicial authority over portions of 
 its territory. Commonwealth v. Frazee, O. S. v. 167. 
 
 41 By the agreement between the states Of Pennsylvania and New Jersey 
 made in 1783, the juridical investigation and determination of criminal offences 
 committed on the river Delaware are especially provided for, and is exclusive, no 
 other court having cognisance of such offences, except as provided by this 
 agreement and subsequent Acts of Assembly. Id. 
 
 42. Jurisdiction of a state court having attached upon a ship will not be set 
 aside by proceedings in Federal courts. Carryl v. Taylor, 0. S. iii. 394. 
 
 43. Jurisdiction of Orphans' Court as to disputed claim of creditor against the 
 estate of decedent. Gochenaur's Estate, O. Si. ii\. ii^. 
 
586 JURISDICTION— JUROE AND JURY. 
 
 rV. Habeas Coepus. 
 
 44. United States courts are not authorized to issue a habeas corpus, unless 
 it is necessary in aid of jurisdiction, in a case or proceeding there pending. Ex 
 parte Evarts, 0. S. vii. 79. 
 
 V. Equitable. 
 
 45. Jurisdiction assumed by courts of equity on the ground of accident-^sub- 
 ject discussed. 0. S. ix. 449. 
 
 VI. Specipio Pebfobmance. 
 
 46. Specific performance is not a proper form of remedy for refusal to carry 
 out a contract for the purchase of bonds of an improvement corporation ; there 
 being ordinarily an adequate remedy by the common-law action for damages. 
 But those courts that have original jurisdiction of the cause of action, and au- 
 thority to follow both equity and common-law forms, may give redress in such 
 a case in the equity form, if there be no demurrer to that form. Sunhury and 
 
 \ Erie Railroad Co. v. Cooper, 0. S. vii. 158. 
 
 47. Specific performance of a contract to purchase bonds of the Delaware 
 Division Canal Company, is not within the original jurisdiction of the Supreme 
 Court in banc ; but at Kisi Prius they have original jurisdiction of such a breach 
 of contract, and may give redress in the equity form, if there be no demurrer to 
 the form. Id. 
 
 VII. Questions as to Jueisdiction on Disputed National Teeritoet. 
 
 48. The acts of the Mexican authorities in the territory adjacent to the Rio 
 Grande, while that territory remained de facto under their control , although sub- 
 sequent to the declaration of her boundary by the republic of Texas, in the 
 ordinary administration of the laws, are binding as if done by the government 
 de jure as well as de facto. Trevino v. Fernandez, 0. S. iv. 445. 
 
 JUROR AND JURY. See Peesonation op Jijeok ; Teial bt Juet 
 
 I. Genekallt. 
 
 1. Trial by jury — leading article upon. 0. S. vi. 705. 
 
 2. Of the unanimity of the jury — letter from Francis Lieber upon. N. S. vi. 
 727. 
 
 3. Trial without jury — subject discussed. 0. S. iii. 321. 
 
 4. Province of the court and jury in cases of negligence. Railroad Co. v. 
 Worthingion, N. S. v. 446. 
 
 5. Permission to the jury to take out with them papers or written documents 
 used as evidence is entirely within the discretion of the judge. Porter v. Mount, 
 N. S. V. 292. 
 
 6. Jurors are competent witnesses, both in civil and criminal cases. Bhuser 
 V. Commonwealth, N. S. v. 668. 
 
 7. It is error for the court to have any communication with the jury after the 
 case is submitted to them. State v. Patterson, N. S. xii. 647. 
 
 8. It is error for the court to furnish the jury a copy of the statutes of the 
 state while they are deliberating. Id. 
 
 9. When the evidence taken in an equity case is used as original testimony in 
 another case, the jury may form conclusions without reference to the final decree 
 in the first case. Cooper v. Ullerbach, N. S. xii. 789. 
 
 10. Preservation of the right of trial by jury. Tahor v. Cook, N. S. vi. 632. 
 
 11. The provision in the constitution of New Jersey ordaining that the right 
 of trial by jury remain inviolate is the same as in constitution of 1776. Hone 
 v. Treasurer of Plainfield, N. S. xiv. 251. 
 
 12. Corporation has no constitutional guarantee to trial by jury. Borough of 
 Dunmore's Appeal, N. S. vi. 637. 
 
 13. The word "jury" as used in the constitution does not mean a jury of 
 twelve exclusively. Knight v CompiieW, N. S. xi. 591. 
 
 14. Legislature has no right to compel submission to ail arbitration without 
 consent of party. Baldwin v. Haws, N. S. ii 378. 
 
 15. In discharging duties of public concern, as road-viewers, majority of the 
 jury may act. Louk r. Woods, 0. S. lii. 635. 
 
 II. Of the Riohts and Duties op Jukies Geneeall-t, and heeein op the 
 Unanimity oi. 
 
 16. In civil case, the jury are bound to find the law as it is propounded tc 
 them by the court. Bank of St. Mary's v. The State, Jfc; 0. S. ii. 319. 
 
JUEOE AND JURY. SSt 
 
 17. A jury need not fix the value of personal property at the exact sum testi- 
 fied to by a witness. Jeffersonville v. Railroad Co., N. S. xii. 663. 
 
 18. Jury have no power to award costs, but this part of their verdict may be 
 treated as surplusage. Tucker v. Cochran, N. S. vii. 254. 
 
 19. Whenever the evidence is not legally sufiicient to warrant a recovery it is 
 the duty of the court to instruct the jury accordingly. Schushardt v. Allen, N. 
 S. vi. 54. 
 
 20. The facts of a case are to be found by the jurv, unless admitted. Mon-iss 
 V. Piatt, N. S. iv. 523. 
 
 21. Whether an over- valuation and proof of loss be fraudulent or not, is a 
 question of fact for the jury. Williams v. Phoenix Co., N. S. xiii. 125. 
 
 22. By the statute the jury are made judges of the law in criminal cases, but 
 not in any such sense that they are at liberty to disregard the law. Slate v. 
 Buckley, iST. S. xiii. 355. 
 
 23. Whether ale and cider are intoxicating liquors is a question for the jury. 
 State V. Biddle, N. S. xiv. 646. 
 
 24. It is for the jury to determine the delivery of the goods. State of Maine 
 V. Int. Liquors, N. S. xiv. 528. 
 
 m. What is good Cause of Challenge. 
 
 25. The expression of the opinion that the defendants "ought to have re- 
 ceived the votes of all registered persons," does not disqualify one as a juror in 
 an action against such defendants, as judges of an election, for refusing a vote. 
 Elbin V. Wilson, N. S. x. 407. 
 
 26. Sufficient cause for challenge. People v. Holt, N. S. iv. 574. 
 
 27. Where a juror, in the trial of a criminal cause, had formed and expressed 
 a decided opinion as to the guilt of the defendant before being impanelled and 
 sworn, which fact was unknown to the defendant, until after the return of the 
 verdict : Seld, that such juror was disqualified from sitting on the trial, and that 
 a new trial should be granted. Wade v. State, 0. S. ii. 319. 
 
 28. When a juror is found by trior to have formed a fixed opinion for or against 
 the prisoner and entertains it at the time, he is incompetent. Willis v. State, O. 
 S. ii. 319. 
 
 29. Challenge of. One who being summoned as a juror in a case where trea- 
 son was charged to have been committed, stated, on being cliallenged, that he had 
 read the newspaper accounts of the facts at the time, and come to his own con- 
 clusions — had made up his mind that the ofl^ence was treason, though he had 
 not expressed that opinion, nor apparently formed nor expressed an opinion 
 that the defendant was or was not engaged in the offence — is incompetent to sit 
 as a juror. Walshes Case, O. S. ii. 697. 
 
 30. One who has formed a conditional, bat not an absolute opinion on the 
 law of treason, e. g.,'who says he cannot understand how treason can be commit- 
 ted against the United States, if such and such facts do not constitute it, is com- 
 petent to sit as a juror, if he says that on being instructed by the court that the 
 opinion is erroneous, such opinion will cease to influence him as a jurOr. Rey- 
 nolds's Case, 0. S. ii. 698. 
 
 31 . A juror ought to stand indifferent between the prosecution and the accused, 
 and where a juror was challenged on his statement on oath that no degree of 
 circumstantial evidence would induce him to render a Verdict of guilty agaiiist 
 the prisoner charged with a capital offence : Held, that the challenge was pro- 
 perly allowed. Also, that a challenge was properly allowed, when a juror stated 
 on oath that he should be very reluctant to render a verdict of guilty, even if his 
 judgment was convinced of the prisoner's guilt ; but he did not know but that 
 he might be starved to render it. Gates v. People, 0. S. ii. 671. 
 
 32. The order in which parties shall exercise the right of challenge, is a mat- 
 ter within the discretion of the court at the trial term. State v. Pike, N. S. xi. 
 233. 
 
 33. Whether a juror is " indiflferent," and whether a confession was made in 
 consequence of inducements, are questions of fact, to be decided by the judge 
 presiding at the trial ; and no exception lies to his finding. Id. 
 
 34. An " impression" formed by one called as a juror, not strong enough to 
 be likely to prevent a candid judgment upon a full hearing of the evidence, does 
 not disqualify him to be sworn as a juror. Id. 
 
 35. Challenge to the array — grounds for. Ferris v. People, N. S. vi. 773. 
 
588 JUROR AND JURY. 
 
 36. The prosecution have no right to ask a juror whether he has so made up 
 his mind (on facts ?) as that it could not be altered in the course of a trial, there 
 being no obligation on the prisoner to take upon him the burden of changing 
 the juror's mind to the extent that even if this question were answered nega- 
 tively he might have to do it to procure an acquittal. Whitman's Case, 0. S. 
 ii. 698. 
 
 37. One who, vrithout forming or expressing any opinion as to the matter to 
 be tried, had formed an opinion that the laws had been outraged, is competent. 
 Brinton's Case, 0. S. ii. 698. 
 
 38. One who had " certainly expressed an unfavorable opinion towards the 
 course of these gentlemen," that is, a party of persons with whom the prisoner 
 agreed in opinion ; the person summoned being sensible of no such bias as would 
 affect his opinion as juror ; having neither formed nor expressed any opinion as 
 to the guilt or innocence of the prisoner, or of the other persons charged to have 
 participated with him in the offence ; not presuming to be a judge whether the 
 offence was treason; knowing none of "these gentlemen" individually, and 
 meaning to express nothing more than an opinion against the transaction, and 
 that the persons engaged in it ought to be punished, is competent. Lyons's Case, 
 O. S. ii. 698. 
 
 39. One who had formed, (hough not expressed, " some opinion" relative to 
 the matter to be tried, who had made up his mind as to the subject of treason, 
 provided the facts were proved, but not as to the guilt of the prisoner, was re- 
 commended by the court to be withdrawn, the trial being one for treason, the 
 definition of which word in application, though not abstractly, had not yet been 
 perfectly settled by judicial decision, and the court considering that his answer 
 indicated that he night have " made up his mind" on the law of treason or made 
 it up differently from what the court would decide. Smith's Case, 0. S. ii. 698. 
 
 40. The court in the early impanelling of jurors, where the number unchal- 
 lenged are yet great, or in particular trials, or in particular circumstances — as 
 where public opinion has been abused by the party press, or where there is rea- 
 son to suppose that the opinion of the neighborhood from which the jurors came 
 may be biased — will allow more searching and particular questions to be put to 
 the persons summoned as jurors than it would afterwards, where it appears that 
 a jury, such as would be entirely desirable, cannot be had, or where the case has 
 not excited public interest. It will seek in the first instance, and as far as 
 practicable, to have a jui-y not only free from legal bias, but even from any light 
 impressions about the case at all. United States v. Hanway, 0. S. ii. 698. 
 
 V. Op MiscoNDDCT op Jukok, and herein whethek Jdkoks mat be Ex- 
 amined TO Pkovb Pkejudice OS Misconduct. 
 
 41. Where a juror has conversed with a person not of the panel respecting the 
 trial, it is sufficient cause to set aside the verdict. Tomlinson v. Town of Derby, 
 N. S. xiv. 543. 
 
 42. Conversations had with jurors about the case on trial tending to influence 
 them in their verdict, will be sufficient cause for new trial. McDaniels v. Mc- 
 Uaniels, N. S. vii. 729. 
 
 43. It is now fully settled, that the testimony of a juror cannot be received 
 for the purpose of setting aside a verdict, on the ground of mistake or misconduct 
 of the jury. Haight et ux. v. Turner et ah, 0. S. i. 569, 
 
 44. A grand juror cannot be required to state what efforts he made to procure 
 an indictment, what opinions were expressed, or what was the action of any 
 juror. Elbin v. Wilson, N. S. x. 407. 
 
 V. Withdrawal op Juroe. 
 
 45. When a juror is withdrawn from the panel at a criminal trial, even by 
 consent, the fact must be noted of record. Commonwealth v. Shaw, 0. S. vii. 289. 
 
 VI. Discharge op Jury. 
 
 46. The discharge of a jury without the consent of the defendant in a criminal 
 cause is equivalent to an acquittal. Hines v. State, N. S. xiii. 775. 
 
 47. When discharge of jury is equivalent to a verdict of not guilty. State v 
 Walker, N. S. vi. 716. 
 
 48. Right to discharge for disagreement, effect of discharge in criminal cases 
 — subject discussed. N. S. i. 524. 
 
 49. Matter of discretion with judge to discharge jury or not. Wliite v. Calder, 
 N. S. vi. 319. 
 
JUEOR AND JUEY— JUSTICE OF THE PEACE. 589 
 
 Vir. "Waiver op Eight of Teial ny Juet. 
 
 50 The right of trial by jury may be waived, and such waiver will be valid. 
 Madison ^ Indianapolis Railroad Co. v. Whiteneck, O. S. T. 214. 
 
 51. Parries have a right to waive a jury, independent of any legislative pro- 
 vision on the subject. Henderson's Distilled Spirits, N. S. xii. 123. 
 VIII. Oi> THE Verdict. 
 
 52 The separation of the jury for a short time while considering of their 
 verdict is a matter to be considered by the court on motion for a new trial, but 
 is not proper ground for a motion in arrest of judgment. Franklin v. State, 0. 
 S. V. 722. 
 
 53. When improper communication with juror will be ground to set aside 
 verdict. Hickox v. Parmalee, O; S. i. 565. 
 
 54. Juror's name, mistake of, not gi-ound for reversal of judgment of con- 
 viction. Jewell V. Commonirealth, 0. S. ii. 182. 
 
 55. Preremptory challenge of juror in criminal case for cause by the Com- 
 monwealth. Id. 
 
 56. The jury have a right to use their general knowledge in making up their 
 verdict, such as any man may bring to the subject. Railroad Co. v. Richards, 
 N. S. xi. 328. 
 
 JUSTICE OF THE PEACE. 
 I. Duties, Jckisdiction and Powers. 
 
 1. Must be so de jure as well as de facto to justify an arrest by his authority. 
 NeiBman v. Tiernan, N, S. ii. 185. 
 
 2. Civil jurisdiction of, to be measured strictly by statute law. Finnstone v. 
 Mack, N. S. V. 253. 
 
 3. Has no jurisdiction of attachment-execution against wages of labor or sal- 
 aries. Id. 
 
 4. Plaintiff must establish cause by evidence before, though defendant does 
 not appear. Armstrong v. Smith, N. S. v. 380. 
 
 5. Opinion of witness as to damage, not sufficient evidence in such case. Id. 
 
 6. No action lies against a magistrate to recover damages sustained by reason 
 of his taking an invalid recognisance. Way v. Townsend, N. S. i. 690. 
 
 7. It is no objection to the jurisdiction of an alderman that the claim upon 
 which suit is brought was originally more than §100, the plaintiff admitting 
 payments which reduce it below that sum. Herbert v. Conrad, 0. S. i. 440. 
 
 8. Special pleading before. See Commonwealth v. Johnston, O. S. ii. 517. . 
 
 9. Carelessness in doing work is within jurisdiction of justice, if amount 
 claimed does not exceed $100. Conn v. Stumm, 0. S, ii. 120. 
 
 10. If plaintiGf discontinues, it is no bar to subsequent suit. Riddle v. Tidd- 
 hall, 0. S. ii. 120. 
 
 11. Refusal to proceed, may be treated as nonsuit. Partridge v. Lott, N. S. 
 vi. 319. 
 
 12. Jurisdiction of a cause commences on the day and hour fixed in the sum- 
 mons for its return. Sagendorph v. Shult, N. S. iii. 504. 
 
 13. When any act is deferred beyond the time limited in the Justice's Act, by 
 the consent of the parties, it is no error that the act is done after the time speci- 
 fied in the act, if done within the agreed time. Barnes v. Badger, N. S. iii. 
 503. 
 
 14. Non-resident appearing by attorney, his non-residence must be pleaded to 
 avoid the jurisdiction of a justice. Osborne v. Gilbert, N. S. viii. 381. 
 
 15. Surety of a justice is liable for money collected by him in his official 
 capacity, though collected without suit. Ditmars v. Commonwealth, N. S. iv. 442. 
 
 16. The extension of trials of replevin to justices does not violate the pro- 
 vision of the constitution. Kniglity. Campbell, N. S. xi. 591. 
 
 17. In an action for a pent road through defendant's land, the question of title 
 is not sufficient to oust the jurisdiction of a justice of peace. Bell v. Prouty, N. 
 S. xi. 197. 
 
 18. Where the docket of a justice does not sufficiently recite the judgment the 
 premises cannot be restored. Wickersham v. Corlew, N. S. xii. 598. 
 
 19. Parol evidence not admissible to contradict recital on justice's docket. Fa- 
 cey V. Fuller, N. S. v. 252.^ 
 
 20. Action may be sustained against justice of peace for negligence in enter- 
 ing a judgment. Christopher y. Van Liew, N. S. ix. 716. 
 
590 JUSTICE OF THE PEACE— LACHES. 
 
 II. Liability poh Acts when kot duly Qualipied. 
 
 21. A justice of the peace, in an action against himself for an arrest under a 
 warrant issued by him, cannot justify, if he had not, before such arrest, taken 
 the oath of ofBce prescribed by the constitution of the state. Courser v. Powers, 
 N. S. i. 268. 
 
 22. Nor will a subsequent administration of the official oath, on the same day 
 of the arrest, enable him to do so, and the true time when sucli oath was taken 
 may be shown. Id. 
 
 23. Neither will the taking of the official oath under an election to the same 
 f office for the previous year enable him to justify ; the official oath is only com- 
 mensurate with the appoiutmeiit, and covers only the existing term of office. Id. 
 
 in. .JODGMBNT OP. 
 
 24. The entering of judgment by a justice is a ministerial and not judicial act. 
 Christopher v. Van Lieui, N. S. ix, 716. 
 
 23. Omission by a justice to keep a docket will not render his judgment void. 
 Baker v. Brintnall, N. S. viii. 380. 
 IV. On the Appeal, and hekein op Recognisances. 
 
 26. Where the recognisance on appeal from the judgment of a justice was 
 taken with condition to " appear to prosecute the appeal with effect," the plain 
 intention is, that " to" should be read " and ;" and a recognisance under this 
 form is sufficient, under the Act of 20th March 1845. Murraji v. Hazlett, 0. S. 
 i. 122. 
 
 27. The granting of an appeal by a justice is a judicial act, and is not liable 
 for refusing. Jordan v. Sanson, N. S. x. 201. 
 
 LACHES. 
 
 1. Where a bill is filed thirty-seven years after the death of trustee, \vill be dis- 
 missed on ground of laches. Hume y. Beale, N. S. xiii. 336. 
 
 2. Lapse of time and death of parties are grounds for refusing relief against 
 trustee. Pairo v. Vidcery, N. S. xiii. 200. 
 
 3. Six years without an attempt to review is laches. McQuiddy v. Ware, N. 
 S. xiv. 124. 
 
 4. It is too late for a client to object to the purchase of his bonds by the attorney 
 after twelve years. Marsh v. Whitmore, N. S. xiv. 519. 
 
 5. Equity will give relief where there is'no laches. Case of Broderich's Will, 
 N. S. xiv. 523. 
 
 6. Courts of equity will refuse relief where there is laches on the part of those 
 concerned. Smith v. Drake. N. S. xii. 471. 
 
 7. The time which constitutes, depends upon circumstances. Id. 
 
 8. Where there are reasonable grounds for believing fraud in will, and five 
 years passing Without steps being taken to set aside, will be gross laches. 
 Holden v. Meadows, N. S. xii. 471. 
 
 9. If ignorance of the fraud is relied on to excuse the delay of ■five years in 
 filing a bill to set aside judicial proceedings for fraud, it must be shown specif- 
 ically when the knowledge was first obtained. Harwood v. Railroad Co., N. S. 
 xiii. 329. 
 
 10. A court will not set aside the proceedings under which an improvement 
 has been made by a city where there has been laches in applying for relief. 
 Bald et al. v. City of Elizabeth, N. S. xiii. 391. 
 
 11. Undue delay in the tender of price and rescission of a contract of sale, 
 would affirm it. Learning et al. v. Wise et al., N. S. xiii. 394. 
 
 12. When the facts are undisputed, what is unreasonable time or undue delay 
 is for the court. Id. 
 
 13. Any unnecessary delay on the part of a person receiving counterfeit money 
 to inform himself as to its genuineness, acts as a fraud upon the giver and pre- 
 vents a recovery. Atwood v. Cornwall, N. S. xiii. 230. 
 
 14. The trustee of an insolvent debtor was appointed in 1837. In 1843 the 
 debtor died and his executor proceeded iinmediately to collect and administer his 
 estate according to law, became involved in law suits, settled an administration 
 account and was decreed to distribute the balance in 1851, having, in the settle- 
 ment of the estate, incurred heavy expenses and much time and labor. The 
 insolvent trustee had in nowise acted, except by giving security. In 1848 to 
 1851, when he instituted an action against the executor to recover the principal 
 
LACHES-LANDS. 591 
 
 portion of the assets, on the ground that it had formed part of the decedent's 
 estate at the time of his insolvent discharge, but had been fraudulently concealed, 
 the trustee, as well as the creditors whom he represented, had been aware of the 
 proceedings of the executor during the whole period, but no notice had been 
 given of an intended suit nor any proceedings commenced. The trustee was 
 restrained, by injunction, on bill filed by the executor, from further proceeding in 
 his action, on the ground of laches, Frevall v. Barclay, 0. S. ii. 172. 
 
 LAND LAW. 
 
 1 . Land law of Texas, interests of husband and wife in the community property, 
 I one severed by the death of either. Cragg v. Smalley, 0. S. viii. 497. 
 
 2. In suits in partition for land in Texas, the equities between the parties 
 growing out of improvements can be adjusted by the court. Id. 
 
 3. Under the Spanish law, the surviving spouse had no right to sell the whole 
 of the community property. The case of Pannand v. Jones, 1 Cal. U. 448, de- 
 nied. Id. 
 
 LAN-DS. 
 1. Land taken foe Public ITse and pok Railroads. 
 
 1. Where land is taken for public use, or by a railroad company, in the 
 absence of any special provision, only the quantity of land appropriated, the 
 place where it lies, with reference to external circumstances, and the form in 
 which it is taken, can enter into the estimate of the damages. Woodfolk v. Rail- 
 road Co., 0. S. i. 550. 
 
 2. But any general effect that the actual or contemplated construction of the 
 road, or special efiect of its location at the particular place may have upon the 
 value of the land, whether to improve or lessen the price, is not to be considered 
 in the valuation. Id. 
 
 3. So the incidental Injuries or adva/ntages, benefits or injuries caused thereby, 
 are to be left out of view. Id. 
 
 4. Where the language of a statute, incorporating a turnpike company, is such 
 as to vest the title to the land over which the road passes in the company, it must 
 nevertheless be considered as vested only for the purposes of the road ; and when 
 the road is abandoned the land reverts to the original owners. Dunham v. Wil- 
 liams, N. S. i. 570. 
 
 5. Taken by railroad company — damages recoverable therefor — rule govern- 
 ing the assessment of. See Railroad Co. v. Hummell, . S. v. 244. 
 
 n. Title as Affected by Outstandino Equities. 
 
 6. EflFect on title where purchaser has notice of outstanding equities, his vendor, 
 however, having purchased boni fide and without such notice. Card v. Patterson, 
 0. S. iv. 702. 
 
 7. When court of equity will set aside a patent of the United States. Hughes 
 V. United States, N. S, vi. 443. 
 
 m. Possession — Notice to Subsequent Pukchaseks. 
 
 8. What possession of real property sufficient to put on inquiry. Hughes v. 
 United States, N. S. vi. 443. 
 
 9. Consequences of neglect to make inquiry. Id, 
 
 TV. Public Lands and Geants Thereof. Of Pre-emption, and Herein of 
 Title to Land when taken fob Public Use and Afterwards Appropri- 
 ated TO A different PURPOSE. 
 
 10. Settlement. Where one hundred acres of the land of the settler is sold, 
 he may include another one hundred acres, if he obtains a patent for such extension 
 of boundaries. Syphers v. Meighan, 0. S. ii. 120. 
 
 11. All presumptions, in favor of validity of patent. Hill v. Miller, N. S. v. 
 
 445. 
 
 12. When equity of pre-emption claimant not defeated by subsequent entry of 
 one obtaining patent. Hughes v. United States, N. S. vi. 443. 
 
 13. Land ceases to be public upon entry at land oflSce and certificate thereof. 
 Witherspoon v. Duncan, N. S. vi. 445 
 
 14. A grant by the political chief for the time being of Alta California; was 
 not invalid, though it did not receive the previous approbation of the territorial 
 deputation ; the grant conveyed a present and immediate interest, and the neglect 
 to obtain such approbation, if it were the duty of the grantee at all, would have 
 
592 LANDS. 
 
 been only the breach of a condition subsequent, fay which the title was not for- 
 feited. Cruz Cervantes T. United States, O. S. iii. 745. 
 
 15. In the same manner conditions in such a grant that the grantee should 
 build and inhabit a house within a certain time and also obtain judicial posses- 
 sion of the land, are conditions subsequent ; and where in a particular case, after 
 the time limited, the grantee actually took possession of the premises and had 
 lived on them and cultivated them for three years, when he obtained judicial pos- 
 session which he maintained till the time of suit, a period of twelve years, it was 
 held,, that the title had not been forfeited. Id. 
 
 16. It is also no objection to such a grant (made in 1836) that the lands com- 
 prehended by it were within the limits of a mission. Id. 
 
 17. It is finally no objection to such a grant that the land was within ten 
 leagues of the sea-coast, and that the approbation of the supreme executive did 
 not appear to have been obtained. Id. 
 
 18. A grant of land fraudulently obtained is void ab initio, and no title passes 
 to the grantee, nor is the land separated from the public domain, but remains 
 subject to be located upon a valid certificate. EusseU's Heirs v. Randolph, 0. S. 
 iii. 560. 
 
 19. Land purchased for military purposes cannot be sold without special au- 
 thority from Congress. United States v. Railroad Bridge Co., 0. S. iii. 603. 
 
 V. Fixture, what constitutes. 
 
 20. What is a fixture of farm. See WUtshear v. Cottrell, 0. S. ii. 61. 
 
 VI. Lien foe Pukchase-monet. 
 
 21. Preference of liens for purchase-money. Cox v. Romine, 0. S. ii. 768. 
 
 VII. Description by Boundaries. 
 
 22. Where the land is sold by the acre, and not in gross, and vendee receives 
 more than he pays for, vendor can compel payment for the whole quantity. 
 Barnes v. Gregory, O. S. vii. 678. 
 
 23. Boundaries more important than quantity in designating lands. Stein 
 V. Ashby, 0. S. iii. 57. 
 
 VIII. Sale of, for Taxes. 
 
 24. Power of state over taxation of land. Witherspopn v. Duncan, N. S. vi. 445. 
 
 25. Bight of tax attaches as well to donation entries as to cash entries. ' Id. 
 
 26. Defectively described on sale for taxes, effect of. See Doe on dem. Aten v. 
 Stewart, 0. S. iv. 766. 
 
 IX. California Titles as affected by the Mining Laws. 
 
 27. Land titles in California as affected by the mining laws. Tartar v. Mining 
 Co., O. S. V. 188. 
 
 (X. What Interest in may be seized under Execution. 
 
 28. Equitable interest in lands not leviable upon under execution in Ohio. 
 Baker v. Haynes, O. S. iv. 701. 
 
 29. Under the Acts of llthApril 1848 and 12th April 1850, the levy and sale 
 of a wife's real estate by a creditor of her husband's, on execution against him, 
 is contrary to law, and may be restrained by injunction. Hunter's Appeal, N. 
 S. i. 628. 
 
 XI. Adjoining Owner — Excavations by, and Lateral Support. 
 
 30. Injury to, by adjoining owner. See Limitation, 
 
 31. The plaintiff was entitled to lateral support for his land, but not for the 
 wall upon it. The defendant dug a well in his own land, adjoining the land of 
 the plaintiff, and when he no longer required it, filled it up, but the material 
 used for the filling up sunk. The consequence was a subsidence of earth to- 
 wards the place where the well had been, and this subsidence included particles 
 of the plaintiff's earth, and caused the fall of the plaintifTs wall ; but there 
 would have been no appreciable injury to the plaintiff's land if the wall had not 
 been upon it. Held, that there was no cause of action. Smith v. Thackerah 
 etal., N, S. V. 761. 
 
 32. Duty of owner of lot in excavating — rights of tenant. Gourdier y Cor- 
 maek, 0.. S. v. 310. 
 
 33. There are no correlative rights existing between the proprietors of adjoin- 
 ing lands in reference to the use of the water in the earth or percolating under 
 its surface. Chatfield v. Wilson, 0. S. v. 528 ; but see Dutton v. Guardians of 
 Clutton Union, 0. S. v. 567. •' 
 
LA^STDS— LANDLORD AND TENANT. 593 
 
 XII. Devise of Lands, and op aftek-aoquihed Eeal Estate and Devises 
 IN Tkust. 
 
 34. After-acquired real estate, when included in general devise — effect of elect- 
 ing to take or reject property given by will. See Gable's Ex'rs v. Dauh, N. S. 
 j. 692. 
 
 85. Land devised in trust — effect of decision of Kulin v. Newman, 2 Casey 
 (Penna. Rep.) 227 — subject discussed. O. S. v. 193. 
 Xm. Deed. 
 
 36. The validity of a conveyance of real estate must be determined by the 
 lex loci ret sitce. Loring v. Pairo, 0. S. viii. 441. 
 
 37. The owner of a lot of land sold a part of it by parol to a borough cor- 
 poration in 1841, received the purchase-money, delivered possession, and the 
 same year the borough erected a fire-engine house thereon ; no deed was executed 
 by the grantor and his wife until December 1842 ; before this, on the 6th Sep- 
 tember 1842, a judgment was entered against the grantor, upon which execution 
 issued, and the whole lot, including the portion bought by the borough, was sold 
 by the sheriff to the plaintiff in the judgment, who brought ejectment and sought 
 upon the trial to restrict the corporation from giving evidence of title prior to 
 their deed. Held, that the defendants could show the commencement of their 
 title under the parol purchase, from the date of their possession, which was in 
 itself notice of their title, when brought to the knowledge of the plaintiff. 
 Patton V. Borough of Hnllidaysburg, N. S. i. 628. 
 
 XIV. Horizontal Divisions of Land. 
 
 38. Horizontal divisions of — discussed. N. S. i. 577. 
 
 LANDLORD AND TENANT. 
 
 1. The subject discussed. O. S. viii. 321, 449. 
 I. Of the Lease. 
 
 2. Where A. takes lease in trust for corporation to be formed, and corpora- 
 tion receives an assignment of the lease with the knowledge of the facts, it be- 
 comes liable for rent. Van Schick v. Railroad Co., N. S. vii. 574. 
 
 3. Lease for years, with perpetual right of renewal, does not pass fee. Page 
 V. Esty, N. S. vii. 445. 
 
 4. Conveyance by lessor makes grantee landlord, and surrender to original 
 lessor gives him no interest. Id. 
 
 5. Right of tenant to occupy by himself or assignees, unless restrained by ex- 
 press clause of lease. Cooney v. Hayes, N. S. vii. 763. 
 
 6. Covenant by lessee to pay taxes runs with the land. Martin v. 0' Conner, 
 N. S. V. 128. 
 
 7. But lessor cannot maintain action on it against under-tenant or his assignee. 
 
 Id. . , . 
 
 8. No new tenancy is created by a mere agreement for an increase of rent in 
 the middle of the year of the tenancy. The term stands unchanged, by a pro- 
 mise to pay for a balance of a term more rent than a tenant is required to pay 
 by the contract under which he entered into possession. Taylor v. Winters, N. 
 
 S". V. 438. 
 
 9. Such promise, unless supported by a good consideration, is a nudum pactum, 
 and cannot be enforced. Id. 
 
 10. One who has, by an instrument indorsed upon a lease, guaranteed the 
 fulfilment of the covenants in the lease by the lessees, is bound by his guaranty, 
 although the lease is executed by only one of the lessees, where it appears that 
 both lessees occupied the demised premises, and had possession of all the per- 
 sonal property mentioned in the lease, for the whole term. McLaughlin v. Mc- 
 
 Govern, N. S. i. 237. ... t i u, , 
 
 1 1 Lease in fee reservation of price on alienation. In a durable lease, or 
 
 lease in fee, a clause reserving to the lessor a portion of the price or considera- 
 tion-money 'upon a sale of the premises, by the lessee or his assigns, is void, 
 because repugnant to the grant of the absolute estate. Depeyster v. Michael, O. 
 
 12 Where in a lease of a pier and bulkhead in the city of New York, the 
 lessee covenanted to make, at his own expense, all the repairs which might be 
 necessarv, upon the bulkhead and pier, and during the term there was an exten- 
 sion of the pier, the expense of which was paid by the lessor : Held, that the 
 
 38 
 
594 LANDLOKD AND TENANT. • 
 
 extension thus created was a part of the demised premises and belonged to ^the 
 lessee during the term. Hancox v. Jacques, 0. S. i. 182. 
 
 13. Commencement of tenancy — yearly hiring. In the absence of any evi- 
 dence to the contrary, the tenancy under a written agreement for the hire of pre- 
 mises at a yearly rental, from year to year, must be taken to begin from the 
 day on which that agreement professes to have been executed ; and that question 
 is for the judge and not forthe jury. Bishop v. Wraith, 0. S. ii. 639. 
 
 14. On a letting of house or land there is no implied warranty of its fitness 
 'for use — the principle of caveat emptor applies. McGlashan v. Tallmadge, N. S. 
 ii. 315. 
 
 15. An nnder-lease, by lessee, of his whole term, with right to re-enter, is a 
 sub-lease, not an assignment. Peoples. Robertson, N. S. ii. 700. 
 
 16. Liabilitj' on covenant to repair after conveyance by the landlord and at- 
 tornment to the purchaser by the tenant. Mirick v. Bashford, N. S. ii. 629. 
 
 17. The plaintiff, being in possession under an old lease, had an interesse ter- 
 mini under a reversionary lease of the same premises from the same lessor. Be- 
 fore the expiration of the original lease, V., claiming under the lessor by a 
 good title, repudiated the reversionary lease, and subsequently granted to the 
 plaintiff a lease for a shorter terra at an increased rent. Held (affirming the • 
 judgment of the Court of Common Pleas), that the ordinary rule of law, that 
 on a breach of contract the person injured is entitled to be put in the same posi- 
 tion as that in which he would have been had the contract been fulfilled, applied ; 
 and that therefore the plaintiff was entitled to recover the difference between^ the 
 value of the reversionary lease and that granted by V., although he had never 
 entered under the reversionary lease. Looker. Furze, N. S. vi. 45. 
 
 18. An agreement to pay rent is essential to a tenancy from year to year. 
 Chamberlin v. Donahue, N. S. xLi. 732. 
 
 19. The presumption is that a lease for one year with privilege of several is so 
 on the same terms. Brown v. Parsons, N. S. xi. 595. 
 
 20. A tenant is confined to the remedies specified in his lease, and a covenant 
 that the landlord will repair is not to be implied. Sheets v. Selden, N. S. viii. 
 443. 
 
 21. A parol agreement to terminate a lease under seal, without actual surren- 
 der, is not sufficient. Wilson v. Lester et al., N. S. xii. 598. 
 
 22. Nor will the accep'tance of rent from the assignee have that effect. Id. 
 
 23. Clause that landlord shall pay value of buildings at end of term does not 
 give tenant a right to hold over until paid. Spears v. Flack, N. S. iii. 633. 
 
 24. Lease "from the 1st July" begins on 2d. Atkins v. Sleeper, N. S. iii. 
 698. 
 
 25. If lease is invalid, by not recording, a sub-lease of same premises is also 
 so. People V. Stiner, N. S. v. 569. 
 
 26. After refusal to ratify lease by lessor's heirs, lessees may recover rent 
 paid in advance for unexpired portion of term. Campan y. Shaw, N. S. vi. 
 319. 
 
 27. Lessee of land sold under execution against landlord, is not tenant at will 
 to purchaser until notice. Adams v. McKesson, N. S. vii. 63. 
 
 28. Construction of lease. Crouch v. Parker, N. S. iii. 253, 
 
 29. Covenant by landlord to renew lease does not give tenant a right of pos- 
 session. Finney v. Cist, N. S. iv. 119. 
 
 30. An executed lease of land is inoperative if the lessor's wife refuses to 
 acknowledge it, and it may be destroyed by the lessor or refused by the lessee.. 
 Talham v. Lewif, N. S. x. 539. 
 
 31. A tenancy under a written lease may bo proved by parol. Baynor v. Lee, 
 N. S. X. 605. 
 
 32. Where the lessee under a lease for the term of one year, with the option 
 of three, continues in possession after the first year, he elects to hold for the full 
 term. Delashman v. Berry, N. S. x. 667. 
 
 33. A tenant for a year is not a purchaser entitled to notice of equities 
 against his landlord in favor of third parties. Clark v. Herring, N. S. xi. 333. 
 
 34. An. estate at will is converted into a tenancy from year to year by the pay- 
 ment of rent. Silsby v. Allen, N. S. xi. 198. 
 
 35. A general covenant of the tenant to repair the demised premises is binding 
 upon the tenant under all circumstances, even if the injury proceeds from the act 
 
LANDLORD AND TENANT. 595 
 
 of God, from the elements, or from the act of a stranger. Polach v. Pioche, U. 
 S. viii. 508. 
 
 36. In the absence of previous express stipulations, the lessee of premises is 
 not entitled to a covenant in the lease, exempting him from all responsibility by 
 fire, occurring through his or his employee's negligence. Bodman v. Murphy, 
 N. S. xi. 535. 
 
 37. Acceptance of grant subject to rent then due, is such admission as would 
 rebut any presumption of law. Lyon v. Adde, N. S. xii. 258. 
 
 38. Lease becomes void upon premises being taken for city or public improve- 
 ments. Barclay v. Pickles, N. S. vi. 252. 
 
 39. Agreement for a lease of new house — implied contract, defence that house 
 not in a complete state of tenantablo repair. Tildesley v. Clarkson, N. S. i. 375. 
 
 40. When the lessee covenants to restore the possession at the end of the term, 
 without notice, and the lessor may then, or at any time thereafter, re-enter upon 
 the premises, a holding over for several years does not constitute such a tenancy 
 from year to year as requires three months' notice to quit before bringing 
 ejectment. McCanna v. Johnston, O. S. i. 122. 
 
 41. It is only the lessor or the person who stands in the situation of landlord, 
 and not any one who derives title from the lessor, who can, under 4 Geo. 2, u. 
 28, sect. 1, sue a tenant for double value where there has been a holding over 
 after determination of the tenancy. Blatchfordy. Cole, 0. S. vii.' 512, 567. 
 
 42. A sale of a leasehold interest, subject to the payment of a yearly rent, 
 and to the performance of the certain covenants, cosnveys the property, subject to 
 the payment of the yearly rents, and to the performance of the said covenants ; 
 that is to say, in words which for a time were suppflsed by the courts of law to 
 amount to a covenant for indemnity. Greenfield v. Bates, 0. S. v. 507. 
 
 43. A landlord who removes his tenant during the term cannot plead in justi- 
 fication of the trespass that the house was used for a place of prostitution. Mil- 
 ler T. Fornian, N. S. xiii. 394. 
 
 44. A tenant who goes into possession by parol permission of the landlord 
 without any agreement as to time or rent, cannot by the erection of buildings 
 and making repairs claim that his tenancy has become enlarged, by an implied 
 liability to pay reasonable annual rent. Rich v. Bolton, N. S. xiii. 718. 
 
 45. Such tenancy lacked the essential element of annual rent to make it a 
 tenancy from year to year. Id. 
 
 46. Such tenant is not entitled to six months' notice to quit. Id. 
 H. Op the Forfeiture of the Lease. 
 
 47. And where the landlord distrains for rent due before the forfeiture, with 
 the knowledge of it, it will be a waiver ; because that is an act which could only 
 be lawfully done during the continuance of the tenancy. Note to Bowman v. 
 Foot, commenting on Jackson v. Sheldon, N. S. i. 361. 
 
 48. There is no doubt that the weight of authority is that, under the usual 
 clause of forfeiture, the breach of a condition in a lease does not make it abso- 
 lutely void, but only voidable at the election of the landlord ; and that re-entry, 
 or what is equivalent thereto, must be resorted to by him to enforce the election. Id. 
 
 49. It has been in general held, that the receipt of rent accruing after a breach 
 of covenant by a tenant, which by the provisions of his lease creates a forfeiture 
 of the term, is a waiver by the landlord of his right of re-entry, if he was at the 
 time aware of the forfeiture, but otherwise not, because the act is an affirmance 
 of the existence of the tenancy, and an election by the landlord to treat the lease 
 as still subsisting. Note to Bowman v. Foot, commenting on Jackson v. Brown- 
 son, N. S. i. 361. 
 
 m. Op the Rent. 
 
 50. Where rent is payable in advance, and that for the current quarter has been 
 paid, the landlord cannot claim out of the proceeds of an execution an amount 
 of rent proportioned to the part of the quarter which had expired. Purdy's 
 Appeal, O. S. ii. 570. 
 
 51. An assignment of a lease, and acceptance of the assignee as tenant by the 
 landlord, will not destroy the liability of the original lessee, or his covenants and 
 agreements in the lease. Ghegan v. Young, 0. S. ii. 570. 
 
 52. Tenant is bound by his express covenant to pay rent, though he assign 
 his lease with landlord's consent, unless the latter expressly accept a surrender. 
 Frank v. Maguite, N. S. ii. 502. 
 
596 LANDLOED AND TENANT. 
 
 53. InsufiScient averment of surrender. Frank v. Maguire, N. S, ii. 502. 
 
 54. Tenant cannot refuse to pay rent and at same time retain possession, 
 although the landlord fail in his agreement to improve. People ex rel. Ward et 
 at. V. Kelsey, N. S. ii. 631. 
 
 55. Lessee evicted from part of leased premises is entitled to an apportionment 
 of rent, but not to recover the value of the lease over the rent. Carter v. Burr, 
 N. S. ii. 701. 
 
 I 56, Lessee of upper story is discharged from payment of rent by destruction 
 of building by fire. Graves v. Berdan, N. S. iii. 700. 
 
 57. Contra, if he has an interest in the soil. Id. 
 
 58. An attachment on order of court of tenant's goods is not an execution 
 within the meaping of the statute of 8 Anne, ch. 14, sect. 1, but landlord is 
 entitled to his rent out of the proceeds of the sale. Thomson v.' Baltimore Steam 
 Co., N. S. X. 539. 
 
 59. What will raise implied assent by tenant to landlord's notice of increase 
 of rent. Hunt v. Bailey, N. S. vi. 252. 
 
 60. Where tenant agrees to pay the rent in " certain specified repairs on the 
 house," and is expelled before the lease expires, he may recover the value of the 
 repairs, if they exceed the rent, in assumpsit. S7nith v. Newcastle, N. S. viii. 
 443. 
 
 61. When the lessee of property agrees to pay all assessments made thereon, 
 he only agrees to pay such as are valid and can be legally enforced. Clark v, 
 Coolidge, N. S. xi. 58. 
 
 62. Rent under a written lease not recoverable on count for use, &c. Warren 
 V. Ferdinand, N. S. iv, 765. 
 
 63. A quit- claim deed of leased premises does not operate as a release of rent 
 already accrued. Johnson v. Muzzy, N. S. ix. 580. 
 
 64. The mere fact of a tenant being mortgagee after condition broken does not 
 absolve him from payment of rent. Id. 
 
 65. The rent of a dwelling for the purpose of keeping a brothel may be recov- 
 ered from tlie lessee, by suit, if the statute and the city ordinances authorize the 
 keeping of brothelsi Lyman v. Townsend, N. S. xi. 547. 
 
 66. Where the owner of land leased is to receive part of the produce, instead 
 of rent, the lessor and lessee become tenants in common of the crops. Brown v. 
 Lincoln, N. S. viii. 61. 
 
 67. Where the relation of landlord and tenant exists, no presumption of ex- 
 tinguishment of landlord's right to rent will arise from failure to demand it. 
 Lyon V. Adde, N. S. xii. 258. 
 
 68. No action will lie for the simple fact of distraining for more rent than is 
 due and in arrear. Hamilton v. Windolf, N. S. xii. 286. 
 
 69. Liability of tenant for rent after expiration of term, where military au- 
 thorities took and held possession. Constant v. Abell, N. S. v. 445. 
 
 70. Where a railroad company, having authority by law to take property for 
 the purposes of the road, purchases under that compulsion from a landlord a por- 
 tion of the demised premises and then proceeds to evict the tenant therefrom, 
 without compensation, the tenant is not thereby discharged from the payment of 
 the whole rent, but the latter is apportioned from the moment the sale is made. 
 Linton V. Hart, 0. S. iv. 441. 
 
 71. An article of agreement by which another was to occupy the lands for life, 
 for which the occupant was to pay the annual interest on a mortgage, and also 
 to pay quarterly to the owner the interest on all sums which he had or should 
 thereafter pay on the purhaseof the land, makes the occupant tenant of the owner, 
 and payment of the interest can be enforced by distress. Raed v. Kitchen, O. S. 
 i. 635. 
 
 72. A reservation in a lease which afterwards becomes the subject of an agree- 
 ment with a third party, will not estop lessor unless the lessee is party to such 
 agreement. Chope v. Lorman, N. S. x. 602. 
 
 73. A lessee of land contracting to pay all taxes cannot acquire a valid tax 
 title during such lease to the land. Carithers v. Weaver, N. S. x. 607. 
 
 74. Husband being in fact tenant, he alone should be relator in certiorari. 
 People V. McCaffrey, N. S. xiv. 38. 
 
 75. Covenants to pay rent for coal taken out. Powel v. Borroughs, N. S. vii. 
 315. 
 
LANDLOED AND TENANT. 597 
 
 76. Lessor may recover in trover the value of his interest in case where lessee 
 dies. Turner v. Waldo, N. S. vii. 576. 
 
 77. Tenant remaining in possession after termination of the lease is liable for 
 rent. Bonney v. Foss, N. S. xiv. 197. 
 
 78. Where a building is voluntarily erected on the land of another, it becomes 
 part of the realty and belongs to the owner of the land. Id. 
 
 79. A notice to quit on the 17th of January, where the letting was from De- 
 cember 18th " to January 18th," is not legal. Waters v. Yo^mg, N. S. xiv. 398. 
 
 80. The title to the whole crop, raised on shares with a landlord, is in the 
 tenant until divided and possession given. Sargent v. Courrier, N. S. xiv. 585. 
 
 81. After levy of execution against the tenant, no agreement with the land- 
 lord will defeat the levy. Id. 
 
 82. A landlord who negligently constructs his premises, or negligently suffers 
 them to remain defective, is liable to his tenant or a stranger injured thereby. 
 Scott V. Simons, N. S. xiv. 646. 
 
 83. There is no implied warranty that leased premises are fit for use. Id. 
 
 84. Or that landlord will keep them in repair. Id. 
 
 85. Lease after lessor has conveyed all his interest may be foundation of title, 
 if followed by possession. W'dklow v. Lane, N. S. ii. 247. 
 
 86. The landlord in Virginia has a lien on property of the tenant in prefer- 
 ence to any mortgage. Hatter of Wynne, N. S. ix. 627. 
 
 87. By the lease of a building everything essential to its enjoyment passes as 
 incident. Riddle v. Littlejield, N. S. xiv. 123. 
 
 88. A lease at a fixed rent, and the additional rate of $30 for every $500 of 
 improvements, gives the right of distress for the additional $30. Detwiler v. 
 Cox, N. S. xiv. 197. 
 
 IV. Covenant to Surrender the Premises at the Expiration of Lease 
 IN SAME good Order and Condition. 
 
 89. Restoring a structure which was a nuisance to a right of way, and which 
 has been abated, will render a tenant for years liable, although the structure 
 existed before the commencement of his tenancy ; but merely refitting it after 
 it had been injured, but not abated, will not render- him liable. McDonough v. 
 Gilman, N. S. i. 507. 
 
 90. Of the surrender by operation of law. Tyler v. Ilooh, O. S. iii. 700. 
 
 91. An injury caused to demised premises by a storm is to be regarded as an 
 act of God. Polack v. Pioche, N. S. viii. 501. 
 
 92. Tenant will be allowed a reasonable time after the dissolution of an in- 
 junction against the removal of fixtures, to demand and remove the same. Good- 
 man V. Han. S^ St. Jos. Railrnad Co., N. S. ix. 321. 
 
 V. Of the Eight to the Way-going Crop and to Grain and Manure, and 
 
 HEREIN of JFiXTUEES AND THE HlGHT TO REMOVE THEM. 
 
 93. Eight of outgoing tenant to manure and fixtures. See Tyler v. Hook, 0. 
 S. iii. 700. 
 
 94. Tenant not entitled to remove manure from farm at the expiration of 
 lease, though more there than when he came. Hill v. De Rochemonl, N. S. viii. 
 574. 
 
 95. The crop made upon a rented place is subject to the lien of the landlord 
 for his rent, and subject to levy and sale, notwithstanding it has been set aside 
 as an exemption for the benefit of tenant's family. Rust v. Billingslea, N. S. 
 xi. 332. 
 
 96. A lease of land for one year, with the privilege of three, if not sooner 
 sold, and " the right to keep and harvest all crops," confers upon the tenant the 
 privilege of harvesting a crop of wheat after the expiration of the lease. Brown 
 V. Parsons, N. S. xi. 595. 
 
 97. Wine plants upon a farm are personal property and tenant may remove 
 them. Wintermute\. Light, N. S. vi. 188. 
 
 98. Validity of mortgage thereof. Id. 
 
 99. The ground upon which a tenant's right to remove his fixtures has been 
 limited during the continuance of his term is that if he neglects to avail himself 
 of it, then he voluntarily relinquishes it. N. C. Railroad Co. v. Canton Co., 
 N. S. viii. 540. 
 
 VL Of THE Landlord's Right of Entry. 
 
 100. The established rule at common law has always been, that where a right 
 of re-entry is claimed on the ground of a forfeiture for non-payment of rent, 
 
598 LANDLOKD AND TENANT. 
 
 there must be proof of a demand of the precise sum due, on the most notorious 
 part of the demised premises, at a convenient time before sunset on the day when 
 the rent is due. Jackson v. Sheldon, N. S. i. 361. 
 
 101. Landlord entering peaceably in absence of tenant and on claim of right 
 by expiration of tenancy, tenant cannot forcibly dislodge him. Sage y. Harpend- 
 ing, N. S. vii. 314. 
 
 VII. Op PBOCEEmNGS to obtain Possession. 
 
 102. The Act pf December 14th 1863 of Pennsylvania is a complete system 
 for obtaining possession by a landlord. Brown's Appeal, N. S. x. 797. 
 
 103. Practice in summarv proceedings for removal of tenant in New York. 
 People v. Teed, N. S. vii. 254. 
 
 104. If the owner of a tenement has obtained peaceable possession of a part 
 of it, upon the expiration of his tenant's estate, he may use force to take posses- 
 sion of the residue. Mugford et ux. v. Richardsan, N. S. iii. 122. 
 
 105. Tenant cannot set up want of repairs on a bill to enjoin a writ of Jios- 
 session issued by landlord. Sheets v. Seldon, N. S. viii. 443. 
 
 VIII. Remedt or Tenant against Landlord. 
 
 106. Where a lessor stipulated in the lease that when the land is offered for 
 sale the first offer shall be made to the lessee, upon terms as favorable as are 
 offered to any other person ; this gives to the lessee no title to or interest in the 
 land, and creates only a personal obligation. Elder v. Robinson, 0. S. 1. 123. 
 
 107. A tenant's remedy against his landlord, for abandoning his first distress 
 without cause, and levying a second, is trespass, case or trover. Everett, Adm., 
 v. Neff, N. S. viii. 251. 
 
 108. Where a tenant has acquired a right to continue the tenancy for another 
 year, equity will not oust him because he is insolvent or disagreeable to the 
 landlord. Blain v. Everett, N. S. xii. 60. 
 
 IX. Tenant cannot dispcte Landloed's Title. 
 
 109. Tenant cannot set up an outstanding title held by himself. People v. 
 Stiner, N. S. v. 569. 
 
 110. A tenant cannot dispute his landlord's title before surrendering posses- 
 sion. Tewksbury v. Magraff, N. S. viii. 506. 
 
 X. Notice to Quit. 
 
 111. Notice to quit by two of three joint lessors will not enable the three to 
 maintain summary proceedings for possession, nor will subsequent ratification 
 by the third lessor be equivalent to a prior authority. Pickard v. Perley, N. S. 
 iv. 442. 
 
 112. Notice to quit is never necessary unless the relation of landlord and ten- 
 ant exists. Chamberlin v. Donahue, N. S. xii. 732. 
 
 113. If the tenant repudiates the relation, notice is not necessary. Id. 
 
 1 14. When the estate is converted into a tenancy from year to year, six months' 
 notice before the end of a year is necessary to terminate it. Silsby v. Allen,. N. 
 S. xi. 198. 
 
 XI. Tenancy at Will, and herein op Croppers. 
 
 )15. A tenancy at will may be terminated by any act inconsistent with the 
 relation of landlord and tenant. Chamberlin v. Donahue, N. S. xii. 732. 
 
 116. The commencement of an action of ejectment determines the relation of 
 a tenant at will, and his possession is thenceforth wrongful. Id. 
 
 117. Tenant at will entitled to the manure. Corey v. Bishop, N. S. viii. 443. 
 
 118. One hired to work land and take part of the produce for pay is a cropper, 
 not a tenant. Adams v. McKesson, N. S. vii. 63. 
 
 XII.' Keasonable Wear and Tear, and herein op Repairs. 
 
 119. Set-off in action for rent, for necessary repairs and damages. Myers v. 
 Sums, N. S. vi. 380. 
 
 120. How far defendant may recover therefor. Id. 
 
 121. Covenant to keep in repair, broken by bad condition of flues. Id. 
 
 122. Clause in lease as to reasonable wear and tear. Ball v. Wyeth, N. S. 
 iv. 187. 
 
 XIII. Or the Distress por Rent. 
 
 123. Where goods have been seized as a distress for rent, and before impound- 
 ing a tender is made of the rent in arrear and costs, an action will lie for the 
 subsequent detaining of the goods. Loring v. Warburton, 0. S, vii. 508. 
 
LANDLORD AND TENANT. 599 
 
 124. When a party sub-lets to another under a contract that the sub-lessee is 
 to pay the rent due, it is not such a claim for rent by the landlord as may be en- 
 forced against the sub-lessee by distress. Smith v. Tumky, N. S. xi. 333. 
 
 125. Where a warrant for a distress is signed by a person who is in fact the 
 agent of the landlord, though he may not sign as agent, it is sufficient authority. 
 Jean v. Spurrier, N. S. xi. 462. 
 
 126. A distress made without the precedent authority of the landlord is valid 
 if subsequently ratified by him. Id. 
 
 127. A distraint for more rent than is due does not vitiate a distress. Id. 
 
 128. A. agreed to pay B. 12s. a week for the use of standing-room and steam- 
 power for certain machinery belonging to A., in a room the property of B. , and 
 to which B. had access to oil the machinery. B., in the absence of A., who had 
 locked his room, unfastened the window, entered, and distrained the machines 
 for rent ; the distraint was unlawful, and trover lay for the conversion of the 
 machines. Hancock v. Austin, N. S. iv. 110. 
 
 129. Waiver of exemption as to distress on all property on the premises does 
 not extend to the debt for the rent. Mitchell v. Coates, N. S. iv. 442. 
 
 130. A landlord is entitled to his rent out of proceeds of tenant's sale. 
 Barnes's Appeal, N. S. xiv. 461, 
 
 131. Landlord cannot set-oiF rent due in a suit by receiver for price of goods 
 sold on premises to him. Singerhj v. Fox, N. S. xiv. 126. 
 
 132. Queers, whether under the present Bankrupt Law of the United States 
 goods of the estate in the hands of the assignee are distrainable for rent. Re 
 Appold, N. S. vii. 624. 
 
 133. A writ of provisional seizure for rent in Louisiana is in the nature of an 
 execution. Marshall v. Knox, N. S. xii. 630. 
 
 XIV. Of the Lease of Mines. 
 
 134. The lessor reserved to himself the right to work the mines and quarries 
 which should be under the premises demised, with the usual way-leave and pass- 
 age to, from, and along said premises. The lease contained a covenant on the 
 part of the lessor that, in working such mines, he should do as little damage 
 and spoil to the soil as possible. Held, that lessor was entitled to an absolute 
 right of way underground in working such mines. Proud v. Bates, N. S. v. 
 171. 
 
 135. Held, also, that in such working the lessor had no right to let down the 
 surface soil, and that the right to support such surface soil was incident to the 
 grant of the surface, and could not be taken away, unless by express agreement 
 to that effect. Id. 
 
 136. The lease of land for a term of years, with the exclusive right to bore 
 for and collect oil, passes a corporeal interest. Chicago Oil Co. v. United States 
 Co., N. S. viii. 314. 
 
 137. Mining lease — demise of license to make roads, &c. — covenant to yield 
 up roads — right of execution-creditor of lessee to seize iron-plates, sleepers, &c. 
 See Duke of Beaufort v. Bales, N. S. i. 374. 
 
 XV. Action for Use and Ocohpation. 
 
 138. Proof necessary to maintain action for use and occupation. Hall v. 
 Transportation Co., N. S. vi. 123. 
 
 139. Need not actually occupy. Id. 
 
 XVI. How FAR Landlord Liable for Act of Tenant. 
 
 140. A person is not liable for the negligent act of his tenants, in throwing 
 coal-dirt into a river, unlessdone by his authority or command. Little Schui/l- 
 kill Nav. Co. V. Richards, N. S. viii. 315. 
 
 141. Liability of owners of piers in possession of tenants. Moody v. Mayor, 
 N. S. v. 60. 
 
 142. Landlord not liable for nuisance on the premises of his tenant. Vason 
 V. City of Augusta, N. S. viii. 315. 
 
 XVII. Attornment. 
 
 143. Attornment is unnecessary in Pennsylvania. Tifordy. IHeming, JS. b. 
 X. 410. 
 
 144. Ah alienee may proceed in his own name to recover possession ot pre- 
 mises let by his alienor. Id. 
 
 145. A tenant cannot attorn to one who claims adversely to his landlord, even 
 to prevent an illegal eviction. Clark v. Herring, N. S. xi 333. 
 
600 LAND OFFICE— LAKCENY. 
 
 LAND OFFICE. 
 
 Rights and powers of officers of land department. • Bill v. Miller, N. S. v. 
 445. 
 
 LAPSE OF TIME. See Equity. 
 
 LARCENY. 
 
 1. Putting hand in empty pocket not attempt to steal. Reg. r. Collins, N. S. 
 iv. 310. 
 
 2. Larceny under sect. 108 of the Pennsylvania Act of 30th March 1860. 
 Commonwealth v. Chathams, N. S. v. 377. 
 
 3. What will sustain indictment for larceny. Commonwealth v. Collins, N. 
 S. vi. 438. 
 
 4. Evidence on indictment for larceny. State v. Cameron, N. S. vii. 831. 
 
 5. Bringing goods stolen in Canada into Ohio is not larceny in that state. 
 Stanley v. State, N. S. xiv. 54. 
 
 6. He who receives goods from an adulterous wife, knowing them to have been 
 taken without the husband's consent, may be convicted of larceny. Beg. v. 
 Featherstone, 0. S. ii. 695. 
 
 7. Larceny of property of feme covert, indictment must lay the title in the 
 , wife. Commonwealth v. Martin, 0. S. i. 434. 
 
 8. Larceny of gas. See Reg. v. White, 0. S. ii. 116. 
 
 9. Distinguished from embezzlement. See Rex v. Goodenough, 0. S. ii. 116. 
 
 10. Tlie prisoner and the prosecutor's wife were jointly concerned in removing 
 certain goods of the prosecutor from his house. They were afterwards found 
 Jiving together in lodgings taken by the wife in her own name. The property 
 was also found there. The jury were directed that if they were satisfied that 
 the prisoner and the prosecutor's wife, wlien they so took the property, went 
 together for the purpose of having adulterous intercourse, and had afteiwards 
 effected that criminal purpose, they ought to find the prisoner guilty. The court 
 upheld a conviction. Reg. v. William Berry, 0. S. vii. 702. 
 
 11. It is not larceny if a wife take the goods of her husband : and, therefore, 
 a stranger, though privy and accessory to such taking, cannot be guilty. Reg. 
 v. Avery et al., 0. S. vii. 702. 
 
 12. A servant employed to sell goods and receive the money, sold some to a 
 customer, who paid for them. He did not enter the sale in his books, or account 
 for the price, but concealed the transaction and appropriated the money. It was 
 held, that as there was an actual binding sale as between the buyer and the mas- 
 ter, the servant was not guilty of stealing the goods, although he was guilty of 
 embezzling the price. Reg. v. Beits, 0. S. vii. 702. 
 
 13. Reg. V. Rowe, 5 Jur. N. S., part 1, p. 374, the prisoner was indicted for 
 stealing iron which he had taken from a canal while the canal was being cleaned. 
 It appeared in evidence that if property so found could be identified, it was the 
 practice of the canal company to return it to the owner ; otherwise, it was kept 
 by the company. The prisoner was not in the company's employ. Held, that 
 the property in the iron was rightly laid in the canal company. Id. 
 
 14. A pawnbroker's ticket is the subject of larceny. Reg. v. Morrison, O. S. 
 vii. 702. 
 
 15. "What is sufficient to constitute" an attempt to steal. See Reg. v. Cheese- 
 man, N. S. i. 445. 
 
 16. Larceny by finding — subject discussed. 0. S. vii. 381. 
 
 17. S. was entitled to receive from the master of M. a certain sum for bags 
 made him, and the custom was that the bags when furnished were left at the 
 warehouse-door of M.'s master, and S. was paid according to the number found 
 there. M., in concert with S., took out of his master's warehouse bags of his 
 master, and laid them before the door of the warehouse at the place where the 
 bags of S. were usually deposited, and S. came and demanded the money for 
 them as new bags : Held, that M. was guilty of larceny of the bags and that S. 
 was an accessory before the fact. Reg. v. Manning ^ Smith, 0. S. i. 374. 
 
 18. Property left by passenger on railway carriage. The law with regard 
 to the finder of lost property does not apply to the case of property of a passen- 
 ger accidentally left in a railway carriage, and found there by a servant of the 
 company ; and such servant is guilty of larceny, if, instead of taking it to the 
 station or superior officer, he appropriates it to his own use. Railway v. Pierce, 
 0. S. i. 374. 
 
LARCENY— LEASE. 601 
 
 19. The prisoner had tweflty-nine black-faced Iambs, which he put into a field 
 of C, where B. had two white-faced lambs. The next morning he left the field 
 with his flock, taking, unknown to him, one white-faced lamb as well as tho 
 twenty-nine black-faced. On the same day he tried to sell the flock, and during 
 the bargaining it was pointed out to him that there were thirty lambs, and not 
 twenty-nine, as he had said. He nevertheless sold the thirty and was tried for 
 and convicted of larceny, the jury finding that he had committed a felony at the 
 time the actual number was pointed out to him. Meld, that the conviction was 
 proper. Reg. v. Riley, 0. S. i. 374. 
 
 20. If a person finds a purse of money on the high road and appropriates it to 
 his own use the question for the jury is, whether he did so at the time of finding 
 with a felonious intent, and that depends on whether at that time he knew who 
 the owner was, or had the means of knowing him by reason of marks on the 
 article indicating the owner. But the finder is not guilty of felony merely be- 
 cause, when afterwards learning who the owner is, he fails to make restitution 
 and fraudulently retains the property. Reg. v. Christopher, 0. S. vii. .509. 
 
 21. ¥roo{ of corpus delicti. The prisoner was found coming out of a ware- 
 house where a large quantity of pepper was kept with pepper of a similar quality 
 in his possession. He had no right to be in the warehouse, and on being dis- 
 covered said, "I hope you will not be hard with me," and took some pepper out 
 of his pocket and threw it upon the ground. There was no evidence of any pep- 
 per having been missed from the bulk. Held, there was sufficient evidence to go 
 to the jury of the corpus delicti. Reg. v. John Burton, 0. S. ii. 573. 
 
 22. Larceny and embezzlement — distinction drawn. See Reg. v. Betts, 0. S. 
 vii. 511. 
 
 LATERAL SUPPORT. 
 
 The plaintift' was entitled to lateral support for his land, but not for the wall 
 upon it. The defendant dug a well in his own land, whereby plaintiff's wall 
 fell : Seld, plaintiff had no cause of action. Smith v. Thackerah and Another, 
 N. S. v. 761. 
 
 LAW. 
 
 Upon principles of public law, it is clear that the power of erecting a bridge 
 and taking tolls thereon over a navigable river which forms the coterminous 
 boundary between two states can only be conferred by the concurrent legislation 
 of both states. The President, Managers, §-e., v. Trenton City Bridge Co. et al., 
 S. S. i. 697. 
 
 LAW AND LAWYERS— leading article upon. O. S. vii. 313. 
 
 LAW REFORM AND CODIFICATION— leading article upon. N. S. iii. 74. 
 
 LAW REFORMS AND LAW REFORMERS— leading article upon. N. S. iii. 513. 
 
 LAW REPORTING IN ENGLAND. Suggestions as to the consolidation of the 
 legal reports. N. S. ii. 501. 
 
 LAW STUDENT, advice to. 0. S. iv. 207. 
 
 LEASE. 
 
 1. Our statutes with regard to the recovery of leased premises, except in the 
 specific remedy which they provide and the notice to quit prescribed, do not dis- 
 pense with the requirements of the common law on the subject. Bowman v. Foot, 
 N. S. i. 352. 
 
 2. A lease for a term of years, under which the rent was payable quarterly on 
 certain days named, contained the following condition : " Provided, however, 
 that if the lessee shall neglect to pay the rent as aforesaid, then this lease shall 
 thereupon, by virtue of this express stipulation, expire and terminate ; and the 
 lessor mav, at any time thereafter, re-enter the said premises, and the same 
 possess as of his former estate." Held — 
 
 (1.) That the terms expire and terminate were merely equivalent to tho more 
 common expression, shall become void. 
 
 (2.) That the lease, by the non-payment of the rent, did not become void, 
 but only voidable at the option of the lessor. 
 
 (3.) That to take advantage of his right to avoid the lease, it was necessary 
 for the lessor — 1st. To make demand of the rent on the day it fell due, on the 
 premises, and at a convenient hour before sunset. 2d. Upon neglect to pay the 
 
602 LEASE— LEGACY. 
 
 rent, to make a re-entry on the premises, or in some other positive manner assert 
 the forfeituve of the lease. Bowman t. Foot, N. S. i. 352. 
 
 3. Whether, after an entry for non-payment of rent, the acceptance of the 
 vent is a waiver of the forfeiture : Qucere. The current of authorities is against 
 such a doctrine. Id. 
 
 4. The assignee of a lease containing a stipulation to sell at a fixed price is 
 entitled to a conveyance. Napier v. Darlington, N. S. xii. 407. 
 
 5. Such stipulation is not a personal covenant, but a right which may be 
 transferred. Id. 
 
 6. It was a continuing offer to sell, and when accepted the contract was com- 
 plete. Id. 
 
 7. A lease by one company to another, the effect of which is to suspend busi- 
 ness of the lessor for more than one year, is invalid as against the stockholders 
 not consenting thereto. Copeland v. C. Gas-light Co., N, S. xi. 194. 
 
 8. The presumption is that a lease for one year with privilege of several is so 
 on the same terms. Brown v. Parsons, N. S. xi. 595; 
 
 9. After refusal to ratify lease by lessor's heirs lessee may recover rent paid 
 in advance for unexpired portion of term. Campan v. Shaw, N. S. vi. 319. 
 
 10. Under an execution, a leasehold can only be seized and held as real estate. 
 Titusville Novelty Iron Works' Appeal, N. S. xiv. 755. 
 
 11. A parol agreement to terminate a lease underseal without actual surrender 
 is not sufScient. Wilson v. Lester, N. S. xii. 59R. 
 
 12. A railroad company not responsible for injuries resulting from, road while 
 leased to another company. Mahony v. A. ^ St. L. Eailroad Co., N. S. xiv. 
 399. 
 
 13. Written lease may be modified by subsequent parol agreement on new 
 consideration, and evidence is admissible to show new contract. Flandersy. Fay, 
 N. S. vii. 697. 
 
 14. If lease is invalid by not recording, a sub-lease of same premises is also 
 so. People V. Stiner, N. S. v. 569, 
 
 1 5. Lease becomes void on premises being taken for city or public improve- 
 ments. Barclay v. Pickles, N. S. vi. 252. 
 
 16. Where a copy of a lease was duly certified to have been acknowledged 
 •• before a magistrate it cannot be contradicted by parol evidence. Creighton v. 
 
 Ladley, N. S. vi. 359. 
 
 17. Lessee of land sold under execution against landlord is not tenant at will 
 to purchase until notice. Adams v. McKesson, N. S. vii. 63. 
 
 LECTURE BY HON. SIR JOHN TAYLOR COLERIDGE. 0. S. ix. 257. 
 
 LEGACY. 
 
 1. Bequest of a sum, "less any legal debt" due to testator's estate, is payable 
 without deduction to a daughter who had signed notes with her husband for 
 money advanced to him by testator. Rogers v. Daniell, N. S. iv. 116. 
 
 2. Where the real and personal estate of the testator hawe been blended in one 
 common fund, and the personalty is insuffleient to pay debts, and the words 
 "not herein otherwise disposed of are added to the residuary clause, legacies 
 will be charged upon the real estate. Dey v. Dey^s Adm'r, N. S. viii. 127. 
 
 3. In determining whether a legacy is- chargeable upon the real estate, the 
 court will consider the circumstances of the testator, and the nature and amount 
 of his property. Id. 
 
 4. A gift of the interest of a sum during life, and at the death of tenant for 
 life of the principal to another, is a vested legacy in the latter. Thomas's Ex'rs 
 V. Anderson's Ex'rs, N. S. x. 349. 
 
 5. Not to be applied in payment of debt, unless will shows such was testator's 
 intention. Parker v. Coburn, N. S. v. 383. 
 
 6. Maintenance allowed to grandchild, otherwise unprovided forj whether 
 legacy vested or contingent. Leiby's Appeal^ N. S. v. 59. 
 
 7. Where a father, tenant in tail, devised the land to his wife and gave a 
 legacy to his children, to be void if they should attempt to dispossess tlieir mother, 
 and the oldest son and heir in tail sold the land to another, who brought and 
 prosecuted an ejectment against the mother : Held, chat the legacy was forfeited 
 Harper v. LiHle, 0. S. ii. 185. 
 
 8. Attested codicil, held, did not affect leg?.cy. Gurney v. Gumey, 0. S. iii. 
 511. 
 
LEGACY— LEGAL-TENDER NOTES. 603 
 
 9. A legacy may be made of property in Louisana to a corporation existing in 
 and created by the laws of another state, McDonough's Ex'rs v. Murdock, O. S. 
 ii. 401. 
 
 10. Where a sum directed by testatrix to be set apart for an annuity was 
 bequeathed, on deatli of annuitant, to such of testatrix's nephews and nieces as 
 should be " then" living, and the child or children of such of them as should be 
 " then" dead, it was held, that the children of a nephew who was dead at the date 
 of the will were entitled to participate and that their interest vested at the death 
 of testatrix. In re Faalding's Trust, 0. S. vii. ."168. 
 
 11. A substitutionary gift to the personal representative of a niece, one of a 
 class, who had died in the lifetime of testator, without issue, devolves upon her 
 next of kin, and does not pass to her administrator. King v. Cleveland, Master 
 of Soils, O. S. vii. 507. 
 
 12. Misdescription of legatee — evidence. A legacy was given by the testator 
 to his " niece, the daughter of his lost sister Sarali." It appeared that the lost 
 sister's name was Sarah Ann, and that she had left only one child, a son named 
 "William Wand, and that he had no niece answering the description contained in 
 the will. It was held by Sir W. Page Wood, V. C, that William Wand was 
 entitled to the legacy. In re Bicket's Trust, O. S. vi. 60. 
 
 1 3. Legacy for life — the doctrine relating to things qua ipso iisu consummuntur, 
 can have no application to a gift of farming stock for life. Groves v. Wright, O. 
 S V. .'55. 
 
 14. Where a sum is left in trust with a direction that the interest shall be 
 applied to use of a person, such person is entitled to the interest from the date 
 of testator's death. Cook v. Meeker, N. S. vii. 112. 
 
 15. No marshalling of assets between co-legatees when legacy of one has been 
 taken by title paramount to that of testator. People v. Horton, N. S. vi. 505. 
 
 16. Rights of donee mortis causa and subsequent legatee of same. Note to 
 Craige v. Kittredge, N. S. vi. 249. 
 
 17. Legacy held to be chargeable on land. Church v. Wachter-. N. S. iv. 
 192. 
 
 LEGACY, ALTERNATIVE. 
 
 If legacy given to A., and in event of his death to B., and A. die in testator's 
 lifetime, the legacy will take eifect. May's Appeal, N. S. ii. 636. 
 
 LEGAL EDUCATION— leading articles upon. N. S. xii. 65, 265, 409. 
 
 LEGAL LITERATURE— comments on. O. S. iv. 513. 
 
 LEGAL PROCEEDINGS. 
 
 Effect of fraud in, discussed. O. S. iv. 1. 
 
 LEGAL STUDIES ON THE CONTINENT— leading article upon. O. S. vi. 
 577. 
 
 LEGAL-TENDER NOTES. See Constitutional Law. 
 
 1. The taker of counterfeit coin, or paper money which has been made legal 
 tender by law, must use due diligence to ascertain its character and to nntify 
 the giver, to entitle him to recover its value. Atwoodv. Cornwall, N. S. xiii. 
 230. 
 
 2. Any unnecessary delay beyond such reasonable time as would enable the 
 taker to inform himself as to its genuineness acts as a fraud on the giver and 
 prevents a recovery. Id. 
 
 3. Whether the rule, " that a party passing negotiable paper warrants its 
 genuineness," is applicable to payments made in coin or legal-tender notes, 
 Qucere. Id. 
 
 4. The Acts of Congress called the legal-tender acts do not merely confer a 
 privilege on debtors, but are for public policy. Buchegger v. Schultz, N. S. v. 
 95. 
 
 5. Whether the legal-tender acts be constitutional or not, a contract for coin 
 may be enforced according to its stipulations. Chesapeake Bank v. Swain, N. 
 S. viii. 754. 
 
 6. There is in the constitution no express grant of legislative power to make 
 any description of currency a legal tender. Hepburn v. Griswold) N. S. ix. 175. 
 
604 LEGAL-TENDER NOTES— LEGISLATURE. 
 
 7. The making of notes or bills of credit a legal tender is not a means calcu- 
 lated to carry into effect any power vested in Congress. Hepburn v. Grismold, 
 TS. S. ix. 175. 
 
 8. HeJd, that Congress had not the constitutional power to declare paper money 
 a legal tender. Shoenberger v. Watts, N. S. 1. 553. 
 
 9. The fare of a passenger on a railroad is a debt within the Acts of Congress 
 called the legal-tender acts. Lewis y. Railroad Co., N. S. vi. 703. 
 
 10. Legal-tender notes before the Supreme Court. N. S. viii. 193. 
 
 11. A bond payable in gold and silver coin cannot be discharged by a tender 
 of United States notes, issued under the Act of February 25th 1862. Branson v. 
 Modes, N. S. viii. 251. 
 
 12. A bond payable "in gold or silver coin" is satisfied by a payment in legal- 
 tender notes. Murray v. Gale, N. S. viii. 381. 
 
 13. United States notes are exempt from state taxation. Banhy. Supervisors, 
 N. S. viii. 443. 
 
 14 Railroad fare, even when demanded in advance, is so far a debt that it is 
 payable in legal-tender notes. Lewis v. Railroad Co., N. S. vii. 511. 
 
 15. The measure of damages for a cargo, shipped from a port where gold was 
 101 percent, above legal-tender notes, is the value of the cargo in gold the day 
 of shipment, converted into legal-tender notes at the rate they stood at the day 
 of shipment. The Vaughan and Telegraph, N. S. xii. 124. 
 
 16. The legal-tender cases — what they decide. N. S. xii. 601. 
 
 17. The judgment of the national court of last resort, in May 1871, that all 
 debts, whether created before or after the passage of the "Legal-Tender Act," 
 were payable in the paper issues authorized by Congress, determined and fixed 
 the rule of the legal duty. Kellogg v. Page, N. S. xi. 618. 
 
 18. Laws authorizing public officers, or trustees under a charter, to do an 
 act, are to be construed like other statutes according to the intent of the legisla- 
 ture in enacting them, to determine whether they are permissive or imperative. 
 Id. 
 
 19. The construction of the joint resolution passed in 1870 by the Senate and 
 House of Representatives authorizing the state treasurer to pay in coin certain 
 state bonds issued before the passage of the "Legal Tender Act," is to be inter- 
 preted, not by evidence aliunde, but by the language used, circumstances existing 
 at the time, and the exigencies that called for its adoption. And it is held, 
 that the legislature intended thereby to enable the treasurer to conform to the 
 law as then interpreted by the courts, as to the kind of money with which 
 to pay said bonds, and so long as that interpretation prevailed, and no more. 
 Id. 
 
 20. The bonds in question were due June 1st 1871, and payment was soon 
 thereafter demanded "in coin." Held, that the relator then had no claim de 
 jure to require payment in coin, under the then interpretation of the "Legal 
 Tender Act" by the Supreme Court of the United States. Id. 
 
 21. Where authority is given to exercise a power beneficial to a citizen, and 
 the right to the power exercised continues and subsists, courts hold that the 
 duty to exercise the power is absolute, and will make it imperative. But tliis 
 is not a case where courts have ever construed words permissive to be imperative. 
 Id. 
 
 22. There would seem to be no ground for claiming that this joint resolution, 
 not having had the approval of the governor, has the character of a legal enact- 
 ment. Id. 
 
 LEGISLATURE. 
 
 1. No court has authority to entertain a charge of dishonest motives against 
 the legislature. Sunburi/ Sf E. Railroad Co. v. Cooper, O. S. vii. 158. 
 
 2. Powers of, limited by the constitution. Martin v. Water-power Co., 0. S. 
 V. 400. 
 
 3. The enactment of laws cannot be delegated to the people. People v. Col- 
 lins, 0. S. ii. 591. 
 
 4. Power of, to change the legal character of estates or the title to property — 
 subject discussed. O. S. vii. 513. 
 
 5. Member of, not entitled to per diem during recess, but may receive mileage 
 where he returned home. Ex parte Picket, O. S. iii. 54. 
 
 6. Legislature in state where wife resides cannot grant divorce to affect rights 
 
LEGISLATURE— LETTER. 606 
 
 of property in another state where husband resides. Todd v. Kerr. N. S. ir. 
 313. 
 
 7. An act appointing commissioners to erect public buildings, &c., does not 
 bind the city without the latter's consent. Van Valkcnhurgk v. New York, N. S. 
 iv. 437. 
 
 8. A state legislature has power to levy tax on savings bank on amount of 
 deposits. Commonwealth v. People's Savings Bank, N. S. ii. 767. 
 
 9. A general law that no bridge shall be built so as to hinder navigation does 
 not take away from a legislature the right to build such bridges in particular 
 places, darker. B. B. Co., N. S. ii. 188. 
 
 10. Legislature has no power to compel submission to arbitration without con- 
 sent of party. Baldwin v. Haws, N. S. ii. 378. 
 
 11. Prohibition against legislative allowance of any private claim extends to 
 claims against counties as well as the state. People v. Sher7nan, N. S. vii. 186. 
 
 12. Where the constitution requires the legislature to keep a journal of its 
 proceedings parol evidence of proceedings cannot be admitted. Harless v. 
 Secretary of State, N. S. iii. 314. 
 
 13. Power of states to tax United States securities. Note to People v. Com- 
 missioners of Taxes, N. S. ii. 38. 
 
 14. Legislature cannot tax dividends by domestic corporations due non-resi- 
 dent owners. Oliver v. Washington Mills, N. S. vi. 58. 
 
 15. Courts have no power to compel the legislature to execute a trust of mu- 
 nicipal not fiducial character. Supervisors v. Burchell, N. S. iii. 631. 
 
 16. Power of legislature to authorize municipal corporation to take land for 
 widening street. Rockwell v. Nearing, N. S. vi. 378. 
 
 17. Power of the legislature to authorize voting beyond the limits of the state 
 — subject discussed. N. S. iv. 161. 
 
 18. The power of the legislature is limited only by the state constitution. 
 Booth V. Woodbury, N. S. v. 202. 
 
 19. An act regulating the time and manner of taking fish in the sea within 
 the territorial limits of the state, is within the authority of the state legislature, 
 and binding on citizens of other states, and on vessels enrolled and licensed as 
 fishing vessels under the laws of the United States. Dunham v. Lamphere, 0. S. 
 iv. 757. 
 
 LEGITIMACY. 
 
 1. Presumption of — presumption of intercourse and counter evidence. Canjolle 
 V. Ferrie, N. S. i. 127. 
 
 2. Declarations of a deceased mother that her child was born before her mar- 
 riage, and corroborating statements by her of the circumstances and history of 
 her life, are competent evidence to prove that the child was illegitimate ; but 
 evidence of a general reputation that the child was illegitimate is not competent. 
 Haddock v. Boston and Maine Railroad Co., N. S. i. 507. 
 
 LESSEE. 
 
 The assignee of, may recover rent subsequently accruing of one to whom such 
 lessee has previously hired a portion of the demised premises for the whole term. 
 Patton V. Deshon, O. S. iii. 59. 
 
 LETTER. 
 
 1. Of Hon. George Sharswood and J. I. Clark Hare to Gov. Packer, declin- 
 ing the appoinment of commissioners for the erection of the new public buildings, 
 O. S. viii. 569. 
 
 2. Admissibility of letters written by third persons, considered. Note to Fen- 
 nerstein's Champagne, N. S. v. 467. 
 
 3. No objection that only a few and not all of the letters comprising a corres- 
 pondence between the parties are offered in evidence. North Berwick Co. v. In- 
 surance Co., N. S. vi. 188. 
 
 4. Proof of mailing letter affords no presumption of its due receipt, but is 
 evidence for the jury as to that fact. Greenfield Bank v. Crafts, N. S. ii. 
 378. 
 
 5. Therefore, an offer accepted by telegraph constitutes a contract. Trevor v. 
 Wood, N. S. vii. 215. 
 
 6. The rule that letters properly directed and sent arc evidence of dishonor, 
 &c., of negotiable paper, is restricted to commercial paper. Id, . 
 
606 LETTEE— LEX LOCI CONTRACTU. 
 
 7. A letter sent by mail is not sufficient withont evidence of its receipt, Kin- 
 ney V. Atwater, N. S. xiy. 758. 
 
 8. Unanswered letter from party offering it. Fearing y. Kimball, N. S. vii. 
 64. 
 
 9. Unanswered letter to party — how far admissible in evidence. Ailen v. 
 Peters, 0. S. viii. 426. 
 
 10. An acceptance by letter is sufficient to make a contract. Trevor v. Wood, 
 N. S. TU. 215. 
 
 LEVY ON LAND. 
 
 It is no valid objection to a levy on land that it enibraces too much property, 
 or that it is named as several parcels which ought to be sold together. If sev- 
 eral parcels are improperly in one sale the court whence the execution issues 
 may set aside the sale, and give the sheriff proper instructions. Donaldson v. 
 Bank of Danville, 0. S, i. 249. 
 
 LEX LOCI CONTEACTU. See Bill of Exchange, Mortgage, Promissoet 
 Note. 
 
 1. Contract made in New Jersey to be performed in Pennsylvania, must be 
 made according to the formalities required by the laws of New Jersey. Dacosta 
 
 V. Davis, 0. S. i. 668. 
 
 2. Lex loci, lex fori. Statute of Limitations. The lex loci governs as to the 
 nature, validity and construction of contract, and the lex fori as to the remedy. 
 Cans V. Frank, N. S. i. 635. 
 
 8. Loan to E. A. §10,000 ; the loan was made in the city of Cincinnati and was 
 received in a draft drawn by D. in Cincinnati on A. in New Haven, which was 
 accepted, payable in New York and there paid. To secure the payment of said 
 loan, E. A. by her attorney executed a promissory note for $10,000 payable five 
 years after date, and also ten other notes for the sum of $500 each,'payable semi- 
 annually, being the interest notes on said loan, at the rate of ten per cent. ; all 
 said notes were payable at the office of the Ohio Life Insurance and Trust Co., 
 N. Y. To secure the payment of said notes, E. A. executed a mortgage to A. 
 on certain real estate in the city of Cincinnati. In suit brought in Cincinnati to 
 collect the amount of these notes, and to foreclose this mortgage, held, that the 
 law of Ohio, "where it was lawful to contract for ten percent, interest," gov- 
 erned the construction of this contract, and not the law of New York, where a 
 similar contract would have been void for usury. Aiwater v. Roelofson, 0. S. 
 iv. 549. 
 
 4. Where in such suit a counter claim is filed, asking the cancellation of said 
 notes and mortgage on the ground of usury, in no case would the court grant 
 such affirmative relief, unless the party should do what was equitable and just, 
 viz., pay back the money he actually received. Id. 
 
 5. Wills of real estate are governed, so far as relates to the forms of execution, 
 by the law of the place where the land is situated. Hurtt v. Mootrie, 0. S. iv. 
 395. 
 
 6. Where the decedent made his will at Charleston in South Carolina, where 
 he then had his domicile, according to the forms prescribed by laws of that state, 
 and subsequently removed to the city of New York, where he died ; Held, that 
 the will so made was valid as to personalty, though not solemnized in conformity 
 to the laws of New York. Id. 
 
 7. In the continental jurisprudence, the rule that the act is valid if performed 
 according to the lex loci, is universal in respect to a testamentary disposition of 
 movables. Id. 
 
 8. Where the lex loci actus and the lex loci domicilii are both conformed 
 to, so far as relates to the forms of the testament, a subsequent change of comi- 
 cile to a place where other forms are required, will not invalidate the instrument. 
 Id. 
 
 9. The statutes of New York recognise the validity of foreign wills of per- 
 sonalty made according to the lex loci actus and do not admit of a revocation to 
 be effected by a change of domicile. Id. 
 
 10. A sale of horses was made in the state of Virginia, within the jurisdiction 
 of which both parties and the property were at the lime, but possession was re- 
 
 . tained by the vendor. The horses were subsequently sent into the state of Penn- 
 sylvania to be pastured, and there made the subject of an attachment by creditors 
 
LEX LOCI CONTRACTU— LIBEL. 607 
 
 of tlie Tendor. It was held, that the ralidity of the sale and of the title of the 
 vendee was to be determined by the law of Virginia, so far as it differs from that 
 of Pennsylvania, on the subject of fraud in the sale of chattels. Born v. Sliaw, 
 O. S. vi. 23S. 
 
 1 1 . The lex loci contractus must govern both as to the status of the parties 
 and the subject-matter of the contract. Poindexter v. Anderson, O. S. vi. 78. 
 
 12. The contract of marriage is not made an exception to the well-settled rule 
 of the common law, that the law of the place where contracts are entered into, 
 unless made with a view to performance in another place, is to determine the 
 relative rights and obligations of the parties. Lyon v. Knott, O. S. ii. 604. 
 
 13. Where there is no express contract, the law of the matrimonial domicile 
 will govern as to all the rights of the parties to their present property in that 
 place, and as to all personal property everywhere, and the same rule holds good 
 as well to future acquisitions as to present property, when there is no change of 
 domicile ; but when there is such change, the law of the actual and not of the 
 matrimonial domicile will prevail as to future acquisitions of movable property. 
 Id. 
 
 14. The validity of a contract is to be decided by the law of the place where 
 it was made, unless it was agreed either expressly or impliedly that it should be 
 performed elsewhere ; in which case the general rule is, that the contract, as to 
 its validity, nature, obligation and interpretation, is to be governed by the law 
 of the place of performance. Hill v. Spear, N. S. xi. 497. 
 
 15. Contracts, valid by the law of the place where they are made, are gener- 
 ally valid everywhere, jure gentium, and by tacit consent. And if in the place 
 where the contract is made the policy of the local law would enforce it, it will 
 also be enforced in the jurisdiction to which a party may be compelled to resort 
 for the application of a remedy for the violation of such contract. Id. 
 
 16. An exception to this rule, however, consists in this, that no nation or state 
 is bound to recognise or enforce any contracts which are injurious to its own in 
 terests or the welfare of its own people, or which are in fraud and violation of 
 its own laws. Id. 
 
 17. A man is presumed to know and understand not only the laws of the 
 country wherein he dwells, but also those of the foreign country or state in which 
 he transacts business. Id. 
 
 LEX EEI SITiE. See Moetgagb. 
 
 IjIBEL. See Damages. 
 
 1. "Where words are susceptible of any innocent interpretation, an innuendo is 
 required, as, e, g., that a prostitute is under the protection of the plaintiff. More 
 V. Bennett, N. S. vii. 190. 
 
 2. Words not actionable are not enlarged by innuendo. " Carry the plaintiff 
 back to Thomaston, where he came from," with innuendo that Thoraaston meant 
 the state prison, not libellous. Emery v. Prescott, N. S. vii. 44.5. 
 
 3. The jury must say whether the meaning avferred in the innuendo expresses 
 the true meaning of the word. Commonwealth v. Keenan, N. 8. xi. 198. 
 
 4. If some of the innuendoes extend the meaning too far, but there are 
 others suiEcient to give point to it, the jury may convict under the latter. Id. 
 
 ft. A publication reviewing the credit of a firm, and charging one of the mem- 
 bers with dishonesty, is libellous ;)er se. Taylor v. Church, 0. S. iii. 443. 
 
 6. A firm may recover for such a libel without proof of special damage. 
 Id. 
 
 7. Libellous letter not justified by the relation of friend and pastor between 
 the writer and the recipient. Count Joannes v. Bennett, N. S. ii. 767. 
 
 8. Evidence receivable in mitigation of damages. Van Dorveer v. Suiphin, 
 O. S. iv. 698. 
 
 9. Plea of justification and notice of. Id. 
 
 10. The incongruous rule of the coui'ts of New York and other states, that a 
 defendant in an action for slander or libel might show, to rebut the presumption 
 of malice, that he believed the charge when made to be true, but must not show 
 anything tending to prove it true, traced to its origin in the case of Underwood 
 V. Parks, 2 Strange 1200. Follet v. Jewett, 0. S, i. 600. 
 
 11. The rule in Underwood v. Parks is shown not to be an original r;ile of 
 the common law, but a departure therefrom, and a mere piece of judicial legisla- 
 
608 LIBEL— LICENSE. 
 
 tion. The defect in this legislation in excluding appropriate matter in mitigation, • 
 because not pleaded, without providing any mode in which it could be pleaded, 
 exhibited. Also, shown how the matter was made still worse by the gratuitous 
 adoption of another rule, viz. : that pleading the truth of the charge in justifi- 
 cation was conclusive evidence of malice in the original publication. Folletv. 
 Jewett, 0. S. i, 600. 
 
 12. Section 16.5 of the New York Code of Procedure, properly construed, af- 
 fords a complete remedy for the evils resulting from these unjust rules. Id. 
 
 13. The construction given to this section, in Graham v. Stone, 6 How. Jr. 
 E. 1.5, disapproved, and shown to leave the matter in a worse condition than 
 before. Id. 
 
 H. A corporation has the capacity to compose and publish a libel, and is lia- 
 ble to an action for damages therefor. Maynard v. Firemen's Ins. Co., N. S. 
 viii. 186. 
 
 15. At common law an action lay against husband and wife jointly for a libel 
 by the wife alone, which is the rule in New York. Tait v. Culbertson, N. S. ix. 71 5. 
 
 16. The subject of giving evidence in actions of slander of previous reports 
 of the truth of the character in mitigation, considered ; and the distinction between 
 such evidence as bearing upon the character of the plaintiff and upon the pre- 
 sumption of malice on the part of the defendant, adverted to ; evidence of this 
 kind being admitted in England for the latter purpose, but not iu the state of 
 New York. Follet. v. Jewett, 0. S. i, 600. 
 
 17. The difference in actions for libel, between cases where the libellous article 
 is merely a republication of an article previously published, and where it re- 
 asserts the charge, referring to the previous article as authority, exhibited. Id. 
 
 18. In the former case, the prior publication maybe given in evidence iu 
 mitigation ; in the latter — Quaere. Id. 
 
 19. The rule in relation to striking out redundant matter under the Code is, 
 that unless it is clear that no evidence can properly be received under the alle- 
 gations objected to, they will be retained until the trial. Id. 
 
 20. When therefore the alleged libel contained the following : " the indict- 
 ment brought against him (the plaintiff) by his own friends, has never been 
 answered or disproved. He stands accused of a heedless and extravagant, if 
 not corrupt, .squandering of the canal funds under his control ; and this we pre- 
 sume the Courier regards as one proof of the ' friendliness' of Mr. Follet for 
 the canal ;" and the answer set up in mitigation, that the state auditor had made 
 a report to the canal hoard, charging the plaintiff substantially as charged in the 
 libellous article, which report had been published in the newspapers of the state 
 with comments ; and that the article complained of was based upon such reports 
 and comments, and was a legitimate commentary thereon ; a motion to strike 
 out the matter so pleaded in mitigation aa redundant, was refused. Id. 
 
 21. The 6th and 7th Vict., ch. 96, sect. 2, which permits newspaper publisher 
 in actions for libel to plead that the libellous matter was inserted without malice, 
 and that a full apology had been inserted in the newspaper, and to pay money 
 into court by way of amends, contemplates the insertion of an apology, not 
 merely sufficient in its terms, but inserted in a proper mode as to type and place. 
 Lafone v. Snith, O. S. vii. 508. 
 
 22. The statute of 18,54, New York, ch. 130, exemping from prosecution for libel 
 the publishers of legislative debates, &c., is prospective only, and is no defence for 
 a publication prior to its enactment. Sanford v. Bennett, N. S. i. 439. 
 
 23. The publication of a slander uttered by a murderer at the time of his exe- 
 cution, is not privileged either under that statute or at the common law. Id. 
 
 24. The statute relates only to statements made in judicial, legislative, or ad- 
 ministrative bodies in execution of some public duty. Id, 
 
 2.5. The question of vindictive damages discussed. See Thompson v. Keereber, 
 O. S. vii. 50. 
 
 LIBEBIA, ADMINISTRATION OF LAW IN— leading article on. N. S. v. 65. 
 LIBBI, M. — the French savant — history of prosecution against. O. S. i. 136. 
 LICENSE. See Eqditt. 
 
 1. There is an implied license on the part of the vendor for the vendee .to enter 
 
 the premises of the vendor to take possession of chattels sold to him. Evans v. 
 
 Foss, N. S. xi. 270. 
 
LICENSE. 609 
 
 2. Although a rerocable license, such as the grant of a privilege necessary to a 
 permanent business, may by the expenditure of money by the licensee become a 
 contract which will be enforced by a court of equity, yet this principle must always 
 depend for its application to any particular case upon the presumed intent of the 
 parties that the privilege should be commensurate with the business as a right in 
 all events, and not merely as a voluntary accommodation. Jackson ^ Sharp Co. 
 T. Bai'.road Co., N. S. xi. 374. 
 
 3. It is settled that at law a license cannot create or transfer any interest in 
 land. Hence, a mere license affecting lands is at law always revocable, though 
 granted for a valuable consideration, and though the licensee may have expended 
 money on the faith of it. Id. 
 
 4. This rule is modified in equity by the principle of equitable estoppel, but 
 equitable estoppel proceeds always on the basis of prevening fraud. Its effect is 
 to restrain the exercise of a legal right, and this even a court of equity cannot do 
 unless there has been such conduct as would render the assertion of the legal right 
 a fraud. Id. 
 
 5. The creation of a side track connecting with a railroad, at the expense of 
 plaintiff, and the subsequent expenditure of largo sums of money by him in the 
 erection of car-works, from which cars were delivered by means of the side 
 track, held, not to estop railroad company from revoking their license to connect 
 the side track with the company's track. Id. 
 
 6. One who has consigned spirituous liquors to another, to be sold in viola- 
 tion of statute of 18.55, c. 215, cannot maintain an action for the breach of an 
 agreement by the consignee to render an account of sales, pay the value of the 
 liquor sold, and return the residue. King v. McEmy, N. S. i. 689. 
 
 7. Where A. gave B. a parol license to cut timber on his land, and B. a like 
 license to flow his lands by a dam, it was held, that though mutual, the licenses 
 were independent, and either party might revoke his so far as it was unexecuted. 
 Dodge V. McCliniock, N. S. viii. 62. 
 
 8. A license at law creates no estate in the lands of the licensor, but will 
 justify or excuse any act done under it. It is revocable even when given for a 
 consideration, but not if once executed. Veghte v. Raritan Water-power Co., N. 
 S. viii. 191. 
 
 9. A broker cannot recover commissions unless he has taken out a license 
 under the Act of Congress of June 30th 1864. Holt v. Green, N. S. xiii. 453. 
 
 10. An action cannot be maintained in Pennsylvania founded on a violation 
 of a United States law. Id. 
 
 11. There is no difference whether the contract is malum prohibitum or malum 
 in se ; the test is whether plaintiff requires the illegal transaction to establish his 
 case. Id. 
 
 12. The licensee of land is liable in an action to the licensor for injuries re- 
 sulting to cattle from his negligence. Eaton v. Winnie, N. S. x. 540. 
 
 13. The granting of a license to trade restores the standing of the grantee so 
 as to enable him to be heard in the United States courts. United States v. One 
 Hundred Barrels, N. S. iii. 735. 
 
 14. A license obtained through fraud, mistake or error. Id. 
 
 15. A license under Act of 1862, c. 119, does not authorize the sale of liquors 
 in violation of state law. Commonwealth v. Thornily, N. S. iii. 373. 
 
 16. Under United States laws does not give power to do business in violation 
 of state laws. McGuire v. Commonwealth, N. S. v. 570. 
 
 17. To be irrevocable must be by estoppel, because parties cannot be put in 
 statu quo. Huff v. McCautey, N. S. vii. 63. 
 
 18. Mere payment of money for a license will not make it irrevocable. Id. 
 
 19. An agreement was made by the owner of land with one who was to ex- 
 plore the same for mineral oil, and if oil was found a part of the land was to he 
 sold to the explorer. Held to be a personal license, on which ejectment would 
 not lie by the assignee of the covenantee. Dark v. Johnston, N. S. vi. 543. 
 
 20. If the licensee had held possession under the license he might have recov- 
 ered in ejectment so much of the land as he had lawfully occupied under the 
 license. Id. 
 
 21. To do certain acts on another's land does not convey any interest therein. 
 Hoaston v. Saffee, N. S. vi. 380. 
 
 22. Statute of Frauds does not apply thereto. Id. 
 39 
 
610 LICENSE— LIEN. 
 
 23. How far such license is revocable. Houston v. Saffee, N. S. vi. 380. 
 
 24. Damages for cutting lead pipe laid upon defendant's land under a parol 
 license. Id. 
 
 25. To do certain acts on land conveys no interest in the land, Blaisdell v. 
 G. F. ir C. Railroad Co., N. S. xii. 258. 
 
 26. So far as it is not executed a license may be- revoked. Id. 
 
 27. A license to build a railroad over land: excuses all acts properly done 
 under it. Id. 
 
 28. Possession under a license cannot be adverse. Id. 
 
 29. Pecease of either party to a license is a revocation. Id. 
 
 LIEN. See Admikalty, Attornet, Pakt Owner. 
 
 I. Liens generally, and herein oe Liens against a Kailroad Company and 
 OF Equitable Liens. 
 
 1. Liens — law as to discussed. N. S. i. 321, 257. 
 
 2. Lien of a judgment, what it binds — subject discussed. 0. S. v. 513. 
 
 3. The difference between statutory liens and common-law liens — subject dis- 
 cussed. N. S. xiv. 246. 
 
 4. Where there are liens on the property of a railroad company, the liens must 
 be adjusted in chancery, where each claimant shall receive his proportionate 
 share of the proceeds. The appointment of a receiver is generally ruinous,' and 
 a sale of such property should not be made under a reasonable prospect of pay- 
 ment, by a faithful application of the profits of the road. Coe v. Pennock and 
 the Railroad Co., 0. S. vi. 27. 
 
 5. Lien of attorney will be enforced according to the law of state where it is 
 attached. Citizens' National Bank v. Culvsr, N. S. xiv. 642. 
 
 6. In Vermont an attorney has a lien on a judgment for all his just claims in 
 the suit. Id. 
 
 7. Such lien cannot be deftated by an attachment of the debt. Id. 
 
 8. Relinquishment of possession by the bailee is abandonment of lien, unless 
 consistent with the contract. Robinson v. Larrabee, N. S. xiv. 453. 
 
 9. Any person having a specific lien in a surplus fund in court may apply by 
 petition for the protection of his right under the 43d admiralty rule. The Lota- 
 wanna, N. S. xiv. 483. 
 
 10. Lien of judgment is subject to tenant; who has the power to consent to sale 
 of premises. Leggett v. Doremus, N. S. xiv. 325. 
 
 11. The lien of a judgment on real estate is co-extensive with the limits of 
 the county where it was rendered. Kinney v. Knoebel, N. S. ix. 716. 
 
 12. The vendor has a lien against the vendee and all parties claiming as vol- 
 unteers or with notice under him for unpaid purchase-money. Wilson v. Lyon, 
 N. S. ix. 719. 
 
 13. Creditors have no lien on husband's labor, nor can they force him to labor 
 for them. Whedon v. Champlih, N. S. x. 475. 
 
 14. There is no lien at common law in favor of a corporation- against its 
 stockholders for debts due by them. Mutual Insurance Co. v. Cullom. N. S. xiii. 
 54. 
 
 15. The presumption of abandonment of the lien may be rebutted by the ven- 
 dor's testimony if it is positive. Cordova v. Hood, N. S. xiii. 336. 
 
 16. Part payment of the note and taking a new one does not displiice the lien. 
 Id. 
 
 17. The lien of a levy made by a judgment-creditor is not disturbed by the 
 bankrupt's filing a bill in bankruptcy. Matter of Schnepf, N. S. vii. 204. 
 
 18. Jngment signed in firm's name, but first names of firm not set out in index, 
 is not a lien against subsequent purchasers. Smith's Appeal, N. S. iv. 2.55. 
 
 19. Mortgage, though only a lien in equity, ripens into a title on foreclosure. 
 Smith v. Gardner, N. S. iv. 381. 
 
 20. Continuance of lien after removal of property to another state. Cobb v. 
 Buswell, N. S. iv. 252. 
 
 21. Lien of mortgage is discharged by tender of full amount due and refusal 
 after mortgage and before foreclosure. Van Husan v. Kanouse, N. S. iv. 576. 
 
 22. Liens by the Bankrupt Law are held sacred, and the creditor is especially 
 protected by the 14tb, 15th and 20th sections of that act. Matter of Campbell, 
 N. S. vii. 100, 
 
LIEN. 611 
 
 23. Vcntlor's lien rests on the intention of the parties. Cowls V. Varnum, N. 
 S. Y. 448. 
 
 24. The lien of libellant in a decree in personam in a tTnited States court, will 
 entitle him to a bill of discovery against respondent and a third person who sets 
 lip a different lien. Ward-t. Chamberlain, N. S. iii. 53. 
 
 25. A person imponnding cattle has a lien upon them for damages. Mosher 
 V. Jemilt, N. S. xiv. 395, 
 
 26. Corporation issuing stock has no lien, at common law, against same for 
 debts in its favor. Dock Co. v. Heron, N. S. vi. 634. 
 
 27. When such lien exists; it is by legislative authority. Id. 
 
 28. On a vessel built for and delivered to the United States, when cannot be 
 enforced. Briggs v. Light-boat, N. S. vi. 61. 
 
 29. Equitable liens may be created by express agreement, but not by implica- 
 , lion ; and they will be divested by sheriff's sale, except in special cases. Blester 
 
 V. Green, N. S. iv. 639. 
 
 30. An action will not lie by one judgment-creditor against another, to deter- 
 mine the question as to the propriety of their respective liens upon the equitable 
 property of the judgment-debtor in the hands of the receiver. Mi/ricJc v. Selden, 
 N. S. i. 508. 
 
 31. A statute providing for the enforcement of a lien against the person or 
 property of one between whom and the plaihtiif there was no privity of contract, 
 would be unconstitutional. Jacobs v. Knapp, N. S. xi. 664.' 
 
 II. Liens against Personax. Pkopertt. 
 
 32. By the common law, one who has lawful possesssion of a thing and ex- 
 pends money or labor on it, has a lien and may retain possession until his de- 
 mand is satisfied. Id. 
 
 33. A sub-contractor, a servant of the party entitled to the lien, acquires no 
 interest by reason of his employer's right. Id. 
 
 34. No specific lien on goods when party promises to hold the proceeds for 
 others' benefit. Gibson v. Stone, N. S. v. 188. 
 
 35. If an execution be issued, not for the enforcement of the judgment by levy 
 and sale, but for the purpose of a lien, and to acquire security for the debt, it 
 will be postponed to a subsequent execution issued in good faith. Freeburger's 
 Appeal, N. S. i. 695. 
 
 36. Where a shipper consigns goods to a factor and indorses and sends for- 
 ward bills of lading for them, and upon the faith of such bills of lading the fac- 
 tor makes advances, held, that the facts constituted such a symbolical delivery 
 of the goods to the factor or consignee as to amount to a constructive possession, 
 and that the factor's lien attached. Davies v. Bradley, O. S. v. 232. 
 
 37. The lien of a legacy charged on land can only be divested by actual pay- 
 ment or release or by decree. Grade v. Van Vnlen, N. S. xiv. 323. 
 
 38. No valid lien on the property of a bankrupt after tiling a petition in bank- 
 ruptcy. Stuart V. Bines, N. S. xi. 86. 
 
 39. The landlord in Virginia has lien on property of the tenant. Matter' of 
 Wynne, N. S. ix. 627. 
 
 40. Bankers have no lien for advances on boxes containing securities deposited 
 with them for safe-keeping. Leese v. Martin, N. S. xiii. 587. 
 
 41. The vendor's lien for unpaid purchase-money is extinguished by receiving 
 a note with security from purchaser. Carrico v. F. Sf M. Bank, N. S. x. 4)4. 
 
 42. Attorneys in whose hands a mortgage is placed for collection acquire a 
 lien thereon for services. B. G. Sav. Bank v. Todd, N. S. xii. 593. 
 
 43. Where the terms are " cash" on delivery the vendor may hold a lien on 
 the property where the cash is paid. Jenness v. Wendell, N. S. xii. 57. 
 
 44. The national banks have no lien upon shares of their capital stock for the 
 security of the indebtedness of such shareholders. Bank of L. v. Bank of Newark, 
 N. S. xiv. 281. 
 
 45. A person who constructs cars, or other rolling-stock, for a railroad, if he 
 delivers the stock to the company without any special provision to receive the 
 payment, can claim no lien on the work. He may effect this lien while the work 
 is in his possession. And if he obtain a judgment against the company for the 
 work, an execution cannot be levied on the rolling-stock on which a former lien 
 exists. Coe, Trustee, v. Perinock and the Cleveland Railroad Co., 0. S. vi. 27. 
 
612 LIEN. 
 
 III. Real Estate and Proceeds of Heal Estate, and bbebin op the Libit 
 AS between Judgment-Creditoks whose Liens ake of the same date. 
 
 46. A. was the owner of three properties, numbered respectively 295, 297, 
 299, upon which there were apportioned liens in favor of B., who was a creditor 
 of A.'s by being a holder of thirteen notes for which the liens were held as se- 
 curity, twelve of the notes being unpaid. There was a sheriff's sale of No. 299, 
 the proceeds of which were paid exclusively to creditors other than B. Nos. 
 295, 297, were then sold at sheriff's sale. Held, that B. might claim his whole 
 debt from the fund arising from the sale of the latter, the security and not the 
 debt being apportioned. Bank of Pittsburg's Appeal, 0. S. vi. 310. 
 
 47. A mortgage given on the entire property of a railroad, including future 
 receipts for transportation, with an agreement that property on the road subse- 
 quently acquired shall be bound, and a conveyance of it be duly executed, gives 
 an equitable lien on property subsequently acquired to the bondholders of bonds 
 secured by the mortgage. Coe, Trustee, v. Pennock and the Cleveland Railroad 
 Co., O. S. vi. 27. 
 
 48. Lien of judgment — subrogation. Feet v. Beers, 0. S. i. 696. 
 
 49. Violation of promise gives no right to follow goods. Id. 
 
 50. Parties to deeds may create, by clear and express words. Strauss's Ap- 
 peal, N. S. V. 254. 
 
 51. When such liens will not be divested by sheriff's sale. Id. 
 
 52. Such lien will destroy priority of subsequent mortgage. Id. 
 
 53. A judgment-creditor who advances money on the faith of an unencuftibered 
 title by the record, and without notice, has priority of lien to the vendor for un- 
 paid purchase-money. Hulett v. Whipple, N. S. x. 349. 
 
 54. A sale under the order of Orphans' Court does not discharge the land 
 from the lien of a judgment against the heir or devisee. Bockover v. Ayres, 
 N. S. xi. 264. 
 
 55. If an administrator delay to apply the land for an unreasonable time for 
 the payment of debts, his lien will be lost. Mall v. Woodman, N. S. xi. 328. 
 
 56. Lien of transferred judgment continues for five years from entry in county 
 to which it is removed. Knauss's Appeal, N. S. y. 253. 
 
 57. A bank may through a trustee obtain control of real estate on which it has 
 a lien and sell the same. Zantzingers v. Gunton, N. S. xiii. 587. 
 
 58. A judgment against the husband is no encumbrance on the property when 
 title is vested in the wife. Phelps v. Morrison, N. S. xiii. 56. 
 
 59. The vendor of real estate retains a lien for the unpaid purchase-money. 
 Schwartz v. Stein, N. S. viii. 702 ; and see post, 70. 
 
 60. An equitali)le lien on land may be created at the same time that there is a 
 personal obligation by covenant. Johnson v. Johnson, N. S. xiv. 393. 
 
 6 1 . One who has power to charge his lands and agrees to do so, will be deemed 
 in equity to have done so. Id. 
 
 62. A charge may be created by fair and reasonable implication as well as by 
 ■ express words of trust. Id. 
 
 63. Equity will enforce a charge upon land by appointing a trustee to make a 
 sale after the lapse of a reasonable time. Id. 
 
 64. The lien of warehousemen and wharfingers — subject discussed. N. S. 
 xiv. 465. 
 
 65. Maritime liens — subject discussed. N. S. xiv. 593. 
 
 66. One who contracts to haul lumber at a certain price per thousand has a 
 lien on the whole quantity for his labor, and not a separate lien on each thousand. 
 Bean v. Brown, N. S. xiv. 707. 
 
 67. Purchase-money is a lien on the land sold, where the purchaser has given 
 no separate security. Chilton v. Braidon, N. S. iii. 53. 
 
 68. A mortgage cannot exist as a lien upon lands independent of debt secured 
 by it. La Due v. Railroad Co., N. S. v. 59. 
 
 69. Lien under mortgage cannot attach for larger sum than actually loaned. 
 Freeman v. Avid, N. S. v. 254. 
 
 70. The vendor's lien exists against a purchaser having notice of the deed 
 which shows that consideration is yet to be paid. Cordova v. Hood, N. S. xiii. 
 336. 
 
 71. Taking a note from vendee with security is not an absolute abandonment 
 of the lien. Id, 
 
LIEN. 613 
 
 72. Where land is conveyed to a trustee, to secure payment of a promissory 
 note made by the grantor, with power to the trustee, on failure to pay the note 
 when due, to sell the land, and out of the proceeds to pay the note, and pay 
 over the surplus, if any, to the grantor, judgments recovered against the grantor 
 after the conveyance and before sale of the land are in equity liens upon the 
 surplus proceeds of the land in the hands of the trustee after sale by him. Cook 
 v. Dillon, O. S. viii. 43,5. 
 
 73. But in such case where the judgments were of the same date, and one 
 judgment-creditor issued execution and garnisheed the fund in the hands of the 
 trustee, before the other judgment-creditors had taken any steps to assert their 
 lien : Held, that he thereby acquired a prior rightto the fund. Id. 
 
 74. And when one of the judgment-creditors became the purchaser of the 
 ■land at the sale of the trustee, lor a price exceeding the debt secured by the deed 
 of trust : Held, that such purchaser could not set-off his judgment against such 
 surplus so as to defeat the claim of another judgment-creditor who had garnisheed 
 the trustee under execution on his judgment, although such surplus had not in 
 fact been paid over to the trustee by the purchaser. Id. 
 
 75. As between judgment-creditors whose judgments are of the same date, 
 the one who. first takes stcpS to enforce his judgments against property, whether 
 real or personal, subject to the lien of the judgments, acquires a priority as to 
 such property. Id. 
 
 IV. Liens op Mechanics and Matekial-men. 
 
 76. Proceedings on a mechanic's lien being in rem, the lien must appear by 
 the record. Hunter v. Lanning, N. S. xiv. 462. 
 
 77. Material-men and their lien — subject discussed. N. S. vii. 513. 
 
 78. A mechanic's statutory, for work done on a house, is assignable. Rodgers 
 T. Omaha H. Co., N. S. xiv. 246. 
 
 79. Liens granted by the laws of a state in favor of material-men for furnish- 
 ing necessities in her home port in said state are valid. The Lotawanna, N. S. 
 xiv. 483. 
 
 80. When the plan of a building is changed and greatly enlarged while it is 
 in the course of construction, the liens of mechanics and material-men subse- 
 quent to such change relate only to the commencement of the alterations on the 
 ground, and are subject to all liens which then had fastened on the land. 
 Smedley v. Conaway, O. S. v. 442. 
 
 81. In the distribution of the proceeds of a sherifPs sale, a judgment in a 
 scire facias on a mechanic's claim is not primS, facie evidence in a contest with 
 other lien claimants. Id. 
 
 82. The statute of Kentucky, which gives to material-men and others their 
 lien upon steamers, &c., is not unconstitutional in extending that lien to work 
 done, &c., out of the state. But it cannot be applied in such case as against a 
 bonS. fide purchaser in any other state in which the lien does not exist or has ex- 
 pired. Wightman v. Steamboat Albree, O. S. iv. 119. 
 
 V. Admiralty -Liens. 
 
 83. Liens — maritime — subject discussed. 0. S. v. 129. 
 
 84. A maritime lien on a vessel is paramount to a domestic lien under a 
 statute of a state of subseqnent date. And if a judgment and sale take place 
 under a statutory lien, it will not displace or afffect the prior lien. 0' Callaghan, 
 claimant, v. Riggs, O. S. v. 139. 
 
 85. The vessel in the hands of such purchaser is subject to the prior lien. Id, 
 
 86. As the liens set up are distinct, the plaintiffs being different, neither of 
 these suits can be pleaded in abatement to the other. Id. 
 
 87. The purchaser under the statute lien could not object to the jurisdiction 
 of the admiralty court, as the suits and rights of the parties are distinct. Id. 
 
 88. It is settled that there can be no lien by the general maritime law of 
 materials and supplies furnished a vessel in her hotae port. Hill ^ Conn v. The 
 Golden Gate, O. S. v. 142. 
 
 89. The question whether a vessel is a foreign or domestic one depends not 
 on her enrolment, but upon the residence of her owners. Id. 
 
 90. Where there is a charter-party, the charterers having exclusive control of 
 the vessel will be deemed the owners, and alone are responsible for damages and 
 contracts. Id. 
 
614 LIEN. 
 
 91. May exist against a light-boat building under contract for the United 
 States. Briggs T. A Light-boat, N. S. iii. 566. 
 
 92. Light-'boat is a Tessel within the statute. Id. 
 
 93. Frandulent conveyance of land does not disturb a lien, and it is therefore 
 not payable out of proceeds from a sale under subsequent judgment. Hoffman's 
 Appeal, N. S. iii. 309. 
 
 94. The existence or non-existence of a maritime lien for repairs is wholly 
 independent of the port in which the repairs are made. Taylor v. S. B. Common- 
 wealth, N. S. xiii. 502. 
 
 95. If the owners at the home port are in good credit no maritime lien is 
 created. Id. 
 
 96. A maritime lien does not arise on a contract to furnish materials for 
 building a ship. Edwards v. Elliott, N. S. xiv. 518. 
 
 97. A maritime lien does not exist upon a stationary structure like a bridge. 
 G. P. Co. v. Boch I Bridge, N. S. vii. 409. 
 
 98. A maritime lien will be created for repairs done on a boat or vessel, if the 
 repairs are done on the credit of the vessel. Taylor v. S. B. Commonwealth, N. 
 S. xiv. 86. 
 
 99. Where a party in his libel sets up an admiralty lien he cannot be allowed, 
 if that fails, to set up a statutory lien. Id. 
 
 100. Advances in a foreign port to equip a vessel are a lien, and constitute 
 insurable interest. Ins. Co. v. Baring, N. S. xiv. 191. 
 
 101. The District Court cannot distribute proceeds of sale to any claimants 
 who have not maritime liens. The Lolawanna, N. S. xiv. 191. 
 
 102. It is a conceded proposition that, under the general Maritime Law, a lien 
 arises or is implied for the benefit of material-men, unless the ship be in her 
 home port, or credit be given to the master or owner. Harris v. Schooner Ken- 
 sington, 0. S. viii. 144. 
 
 103. Where a lien arises under the Maritime Law, for the benefit of a material- 
 man, it is not waived or lost because a negotiable note between the parties to the 
 original contract has been taken by the creditor, unless such note was taken as 
 payment ; but if the party taking the note makes an absolute transfer of it, the 
 lien is thereby extinguished ; hence, where A. advanced money for a vessel's 
 supplies and repairs in a foreign port, and the master drew a draft on the. owner, 
 which was accepted, but which subsequently came into the libellant's possession 
 and control, and was brought into court to be cancelled, it was held, that the lien 
 was not extinguished. Id. 
 
 104. The cases fully cited and commented on. Id. 
 
 .105. A sale under foreign attachment or similar proceedings in a state court, 
 though it transfers the title of the defendant to the property attached, does not 
 affect liens created thereon by the law of another state. Devinney v. 37ie Memphis, 
 0. S. ii. 666. 
 
 106. Supplies were furnished to a steamboat in Kentucky, the debt for which 
 became thereupon by the law of that state a preferred lien, enforceable against a 
 purchaser without notice during the space of one year. The vessel was subse- 
 quently attached by process in Louisiana, out of a state court, and judgments were 
 rendered against her master and owners, on confession of the master (the owners 
 not having been served with process), " with privilege in the property therein 
 provisionally seized," under which she was sold. Held, this sale did not affect the 
 lien for supplies in Kentucky, and was no bar to a suit thereon, within the stat- 
 utory limitation. Id. 
 
 107. As to those claiming liens on a boat, as for supplies and materials fur- 
 nished under the circumstances above stated, proof that they gave credit to the 
 boat as of a port of another state, will not avail, unless they have used ordinary 
 diligence to ascertain its true character, or fraudulent or unfair means have been 
 used to mislead and decejve them as to the place to which it belongs. Ducley v. 
 The Steamboat Superior, 0. S. iii. 622. 
 
 108. Where a boat haa been sold under an order of a court of admiralty, 
 and the proceeds paid into the registry, and the fund is insufiBcient to pay all the 
 claims against it, on a question of distribution the claimants will be paid ac- 
 cording to their priorities of privilege. Claims of seamen for wages, aijd of 
 material-men, having a subsisting admiralty lien, if the fund is sufficient, will 
 be fully paid. The next class in privilege will be material-men having no lien 
 
LIEN. 615 
 
 but that acquired in virtne of a seizure under a state law, who will be paid pro 
 rat& out of the balance of the fund without reference to the time of seizure. 
 Dudley V. The Steamboat Superior, 0. S. iii. 622. 
 
 109. A claimant having an original admiralty lien, who has proceeded under 
 a state law in a state court to enforce it, will be deemed to have waived such orig- 
 inal lien, and must rely solely on tho lieu acquired by the seizure under the state 
 law. Id. 
 
 110. For supplies furnished or repairs made to a boat belonging to another 
 state, there is an undoubted admiralty lien, equivalent to an hypothecation of 
 the boat; but for supplies or repairs at the home port there is no lien, unless 
 given by state law. It is competent for a state to provide such a lien, and the 
 national admiralty courts will execute a, state law for such purpose, but state 
 legislation cannot supersede or destroy a lien acquired by the general Maritime 
 Law. Id. 
 
 111. A master of a boat or vessel has no lien for his wages as such. Id. 
 
 112. Lien given by statute upon a ship may arise upon contracts expressed or 
 implied, and the acting master or supercargo may bind the vessel, if the advances 
 are shown to have been necessary by the lender. Leddo v. Hughes, O. S. iii. 638. 
 
 113. The writ for enforcing a laborer's lien on a vessel under the laws of 
 Maine 1858, c. 15, need not allege whether the labor was done before or after 
 she was launched. McCabe v. McRae, N. S. x. 671. 
 
 114. Where A., the master of a brig, puts into a foreign port by reason of a 
 leak, and there borrows money from B., and draws a bill of exchange upon C, 
 which' bill is unpaid at maturity, and at the same time that the bill is drawn he also 
 executes a mortgage or liypothccation, in which there is a special stipulation that 
 B. is not to take tlie usual marine risks in case of bottomry and hypothecation, 
 neither instrument establishes a lien upon the brig which can be enforced in 
 the admiralty, for want of jurisdiction. Mailland J/- Co. v. The Atlantic, O. S. 
 
 ii. 477. 
 
 115. The essential difference between a bottomry bond and a simple loan is, 
 that on the latter the money is at the risk of the borrower, and must be paid at 
 all events ; in the former, it is at the risk of the lender during the voyage, and 
 the right to demand payment depends on the safe arrivail of the vessel. Id. 
 
 116. Admiralty cannot enforce a claim for money which has been advanced 
 on the personal credit of the vessel-owner or master, in a suit in rem. Id. 
 
 117. Where a bill is drawn and a bottomry bond taken for the same sum, the 
 bill must share the fate of the bond. Id. 
 
 118. In a controversy, in which the question is whether a steamboat was a 
 foreign or domestic boat at the time the account accrued, for which the libel is 
 filed, the enrolment made under oath by the managing owner, pursuant to the 
 third section of the Act of Congress of the 31st December 1792, requiring the 
 enrolment to be made at the port nearest the residence of the owner, is primi 
 facie evidence that the boat belonged to such port. Dudley v. The Steamboat Su- 
 perior, O. S. iii. 622. 
 
 119. The proof afforded by such enrolment will be held conclusive as to the 
 character of the boat, unless contradicted by clear evidence of the notorious res- 
 idence of the owner or owners at a place or port other than that named in the 
 enrolment. Id. 
 
 120. The presumption of the knowledge that a boat belongs to the port of its 
 enrolment, as to those who furnish supplies or materials at that port, is strength- 
 ened by the fact that it bears on its etern, inconspicuous letters, as required by 
 the Act of Congress, the registered name of such boat, with the port to which it 
 belongs, especially where the evidence is that such boat mside several trips weekly 
 to and from such port. Id. 
 
 121. By the Maritime Law there is no lien for supplies in the home port. 
 The credit is supposed to be given to the owner, and not the ship. Marsh 4" Son 
 V. The Brig Minnie; Commins v. Same; Bee ^ Tyke v. Same; Smyzer v. Same, 
 O. S. vi. 328. 
 
 122. J. C. owned the brig M. and sold to T., who secured the purchase-money 
 by a mortgage duly executed and recorded. Subsequently to the sale and exe- 
 cution of the mortgage, J. M. & Son repaired the brig and kept her in their 
 custody until the marshal attached her. B. & T. furnished ship chandlery, but 
 were at no time in possession. Held, that these liens must be marshalled as 
 
616 LIEN— LIMITATIONS. 
 
 follows ; First, J. M. & Son, the shipwrights, must be paid, because they had a 
 strict maritime lien and had possession, and no act of the owner can defeat a 
 lien which the law creates; second, the mortgagee, and third, the balance rate- 
 ably to the other libellants. Marsh Sf Son v. The Brig Minnie; Comnms v. 
 Same; Bee Sf Tylee v. Same; Smyzer v. Same, O S. yi. 328. 
 
 123. The Mortgage Act of 1850 considered and interpreted. Id. 
 
 124. Where the vessel is in her home port, and the material-men are not in 
 possession, and no local law recognises their claims as privileged, they must be 
 postponed to the mortgage-creditor who has an interest in rem. Id. 
 
 125. It is settled that there can be no lien by the general maritime law for 
 materials or supplies furnished a ship in her home port. Sill v. The Golden Gate; 
 Johnson v. The Ambassador, 0. S. vi. 273. 
 
 126. A judicial sale, in a proceeding in rem, will discharge maritime liens, 
 whether general or statutory, in whatever jurisdiction it may be decreed. Id. 
 
 127. The operation of the Boat Acts on the western rivers, considered ; the 
 cases cited and commented on. Id. 
 
 128. The foreign or domestic character of a vessel must be determined by the 
 residence of her owners. Id. 
 
 129. If a vessel is navigated by charterers who have exclusive control of her, 
 they are to be deemed the owners pro hac vice. Id. 
 
 130. A general maritime lien cannot be divested by the legislature of a state. 
 
 131. An admiralty sale alone can judicially pass a title to a vessel discharged 
 of liens. Id. 
 
 LIFE ESTATE. See Estate Tail. Will. 
 
 1. Amount received on sale of risfht to subscribe to new shares of stock, is 
 capital, and interest thereof only to be paid tenant for life. Alkins v. Albree, N. 
 S. vi. 507. 
 
 2. A gift of slaves to one " for the term of his natural life, and at his death to 
 his lawful issue forever," vests in him a life estate only. Hancock v. Butler, 0. 
 S. viii. 39. 
 
 LIFE INSURANCE. See Infant. Insurance. 
 
 1. Life insurance effected by fraudulent representations — action in trover by 
 the company to procure cancellation of policy. Insuratice Co. v. Levy, 0. S. i. 
 243. 
 
 2. Authority of local agent to wave forfeiture. Wing v. Harvey, 0. S. ii. 640. 
 3.- Death by suicide. See Moore v. Woolsey, 0. S. iii. 700, 
 
 4. The insured not bound to communicate facts to the company of which he 
 may not be asked, and which he is not sure tend to shorten life. Duff v. Qant, 
 O. S. i. 254. 
 
 5. Affected with a view of murdering the assured to procure the insurance — 
 instances given. 'Palmer's Case, O. S. y. 45. 
 
 LIFE OF THE LATE JUSTICE TALFOURD— sketch of his character. 0. S. ii. 
 513. 
 
 LIGHTS AT SEA. 
 
 Though a sailing vessel is not hound to carry lights at sea, yet if a collision 
 occurs, occasioned by thejr absence, the party thus in fault will be held liable. 
 Palmer v. The Osprey, 0. S. i. 15. 
 
 LIMITATIONS. 
 
 I. Geneballt, and hekein of the absence op the Debtor and what tvill 
 
 STOP IHK IlUNNINS OF THE STATUTE. 
 
 1. Possession taken under a parol gift is adverse in the donee against the 
 donor, and if continued i'or fifteen years perfects the title of the donee as against 
 the donor. The donor in such case not only knows that the possession is ad- 
 verse, but intends it to he so, and there is no occasion for any notoriety. Noto- 
 riety is only important where the adverse character of the possession is to be 
 brought home to the owner by presumption. Clark et ux. v. Gilbert, N. S. xiii. 
 19. 
 
 2. The statute may be pleaded to an action for relief against fraud in the con- 
 veyance of land, b3 well as to an action lo recover money. Wallace v. Metzker, 
 N. S. xiii. 195. 
 
LIMITATIONS. 617 
 
 3. NuUu-n iempus occurrit regi — comments on. N. S. xiii. 465. 
 
 4. Where the occupant of land claming title under a sheriiT's deed upon a 
 ealo on execution has been in possession for ten years, the original owner is 
 barred by the statute. North v. Hammer, N. S. xiii. 591. 
 
 5. The fact that the title was not divested by the sale, in consequence of 
 some defect in the proceedings, does not prevent the application of the statute. 
 Id. 
 
 6. Limitations and liens, by Hon. Eli K. Pkice. Notice of the work. 0. 
 S. vi. IHO. 
 
 7. Statute of, does not apply to bank note. Dougherty v. Western Bank, 0. 
 S. ii. .S79. 
 
 8. Lex fori determines the period, although both parties are citizens of another 
 state. Power v. Hathaway, N. S. iv. 765. 
 
 9. Statute is a bar in surrogate's court as in others, and where there is con- 
 current jurisdiction with a court of law, the legal period will constitute a bar. 
 iSmithY. Remington, N. S. iv. 122. 
 
 10. Statute must be pleaded. Heath v. Page, N. S. iv. 639. 
 
 11. Satisfaction of mortgage on condition of receiving other security payable 
 in ten years is not such payment of the debt as allows the statute to run. Id. 
 
 12. In a court of equity the Statute of Limitations on a cause of action which 
 has been fraudulently concealed, runs from the discovery of the fraud. This 
 principle applied to a defalcation by the cashier of a bank, though a more fre- 
 quent and diligent examination of his affairs by the officers of the bank ought to 
 have disclosed the defalcation within the statutory period after its occurrence. 
 Sparks v. Farmers' Bank, N. S. ix. 365. 
 
 13. Tlie operation of the Statute of Limitations by a cause not mentioned in 
 the statute, will not be prevented for a longer time than such suspension is an 
 enforced one. Braun v. Saurwein, N. S. x. 69. 
 
 14. The statute will run against a claim unless the debtor is both absent from 
 and residing out of the state. Bell v. Lamprey, N. S. xii. 533. 
 
 15. He may have his legal residence out of the state and yet be present, within 
 the meaning of the provision. Id, 
 
 16. When the creditor cannot make legal service, the statute will not run. 
 Id. 
 
 17. A surrogate has the power to open a decree made by him on the final ac- 
 counting of an administrator, and to require a further account in respect to a 
 sum received by him with which he had charged himself, as $14.80 instead of 
 $1480. Sipperly v. Uaucus, N. S. i. 503. 
 
 18. Note secured by mortgage is not barred until the mortgage is. Alexander 
 V. Whipple, N. S. V. 701. 
 
 19. When does the statute begin to run as against check on a bank marked 
 " good ?" Girard Bank v. Bank of Penn Tuvmship, 0. S. ix. 620. 
 
 20. Where a note is given by principal and surety, a paVment of part by the 
 surety raises no implication of a promise by the principal so as to take the case 
 out of the Statute of Limitations. Coleman v. Forbes, 0. S. ii. 122. 
 
 21. Seems, benefit of statute should be extended to assignee of any transfer- 
 able demand. Thompson v. Sickles, N. S. vi. 124. 
 
 22. liight of an assignee of a note to set up statute against a demand of the 
 maker as set-ofl\ Id. 
 
 23. The statute begins to run against a note payable by instalments as each 
 instalment becomes due Bush v. Stowell, N. S. xii. 733. 
 
 24. In the absence of evidence to the contrary, the presumption is that an in- 
 dorsement of credit on a note was made at the time it purports to bear date. 
 Carter v. Carter, N. S. ix. 195. 
 
 25. The Statute of Limitations is no bar to an action in this state (Maine) on 
 a note made in another state, when the defendant has not resided here. Brown 
 V. Nourse, N. S. viii. 187. 
 
 II. Contracts. 
 
 26. The rule as to contracts is that the lex loci contractus governs as to the 
 nature validity, construction and effect of the contract, and the lex fori as to 
 the remedy. Gans et al. v. Frank et al., N. S. i. 635. 
 
 III. Accounts. 
 
 27. Accounts between merchant and merchant. Judd v. Sampson Sf Co., 0. 
 S. iv. 446. 
 
C18 LIMITATIONS. 
 
 28. A judgment of a court of record of a sister state is barrable only by the 
 space of time which would cut off suit on a domestic judgment, viz., ten years. 
 Clay V. Clay, 0. S. iv. 446. 
 
 29. Where there have been mutual accounts between two persons within six 
 years, the Statute of Limitations does not apply to any portion of either account. 
 Chambers v. Marks, 0. S. iv. 441. 
 
 30. Where the defendant has filed his account as a set-off, the plaintiff may 
 plead the statute to it, but only so much will be barred as had accrued more 
 than six years prior to the date of plaintiff's writ. Rollins v. Horn, N. S. iii. 
 382. 
 
 31. Items of credit to defendant by plaintiff for goods or money " returned," 
 have no tendency to prove a mutual account, within the meaning of the Statute 
 of Limitations. Campbell v. White, N. S. xi. 534. 
 
 32. Mutual accounts to save the running of the statute must he open and 
 current, and show a reciprocity of dealing. Webster v. Byrnes, N. S. x. 1 30. 
 
 33. A plaintiff, assignee, may reply the statute to a set-olf against his assignor. 
 Thompson v. Sickles, N. S. vi. 124. 
 
 34. Partial payment appropriated to whole account will stop the statute Luer 
 V. Walker, N. S.' vii. 445. 
 
 IV. Joint Debtors. 
 
 35. Operation of the statute where several hav6 a joint right of action. Wdls 
 et als. v. TUighaid, 0. S. i. 380. 
 
 36. An acknowledgment of a debt by one joint debtor, or by one partner, 
 after the dissolution of the partnership, will not take it out of the Statute of 
 Limitations against the other partner or joint debtors. Farnum r. Eastwick, O. 
 S. ii. 572. 
 
 37. Payment by one of joint debtors. Hawley v. Griswold, N. S. iv. 188. 
 
 38. A payment by one of several joint debtors will not avoid the bar as to the 
 others. Bush v. Stowell, N. S. xii. 733. 
 
 39. Payment by one, under agreement by the other to remain liable, does not 
 stop the Statute of Limitations from running in favor of the latter. Sigler v. 
 Piatt, N. S. vii. 189. 
 
 V. Action on Bills and Notes. 
 
 40. A husband had received certain dividends on stock belonging to his wife : 
 held, that she might claim from his estate the amount so received by him in his 
 lifetime, and that her claim was not barred by the Statute of Limitations. 
 Boardman's Appeal, N. S. xiii. 477. 
 
 41. Note given to mutual insurance company is payable by law at its date, 
 and Statute of Limitations begins to run fronl then. Howland v. Edmunds, N. 
 S. ii. 318. 
 
 42. Where the first indorser of a negotiable note is compelled to pay by 
 a suit begun befpre the intervention of the Statute of Limitations, he may re- 
 cover of the maker in action for money paid. Godfrey v. Rice, N. S. xi. 
 459. 
 
 43. Bad plea of the statute Jo a new count on a witnessed note. Dana v. 
 McClure, N. S. vi. 564. 
 
 44. Held, that where the defendant admitted the execution of the note, and at 
 the same time stated " that he had delivered to plaintiffs some barrel staves and 
 a flat-boat, which had been sold for the use of plaintiffs, which he thought would 
 pay the amount of their claim, but if there was any balance due after deducting 
 the value of said barrel staves, and the price of said boat, he would pay said 
 b;ilance that might be found due ; but be did not believe he owed plaintiffs 
 anything, and refused to pay anything." Held, that this was not sufficient to 
 take the case out of the Statute of Limitations. Height v. Wheeler, 0. S. i. 
 699. 
 
 45. The limitation law of Kansas does not prevent recovery by the reversioner. 
 Dewy V. McLain, N. S. x. 472. 
 
 46. Where party agreed to reconvey in three years on payment of a certain 
 sum, and the sum was not tendered nor conveyance demanded for nine years, it 
 was held, that the Statue of Limitations is no bar to a reconveyance in such a 
 case. Harper's Appeal, N. S. x. 411. 
 
 47. The limita'tion imposed by the Act of March 3d 1863, for the bringing 
 of suit was within the powers of Congress. Milligan v. Hovey, N. S. xiii. 122. 
 
LIMITATIONS. 619 
 
 48. Where a debtor makes an offer to compromise and is rejected it is not 
 such an acknowledgment as would take the case out of the Statute of Limitations. 
 Currier v. Lockwood, N. S. xiv. 12. 
 
 49. A law which takes away a right of defence of the Statute of Limitations 
 is unconstitutional. Eockport v, Walden, N. S. xiv. 393. 
 
 50. A debt barred by the Statute of Limitations is not " due and payable " so 
 as to be provable in bankruptcy. Matter of Ray, N. S. vii. 283. 
 
 51. Powers of legislatme to pass limitation acts, and wliat are such. Price v. 
 Eopkin, N. S. iv. 571. 
 
 52. Such possession of stock by executor is not adverse and the Statute of 
 Limitations does not apply. Norris's Appeal, N. S. xii. 787. 
 
 53. Where debt is payable on demand statute does not usually begin to run 
 until demand, but creditor by unreasonable delay may put the statute in opera- 
 tion without demand. Thrall v. Mead, N. S. vii. 832. 
 
 54. Suit is commenced when the writ is ready with intention of immediate ser- 
 vice. Mason Y. Cheney, N. S. vii. 315. 
 
 55. How the affixing of a stamp affects the writ. Id. 
 
 56. Where a creditor of F. had insured liis life for a sum not exceeding his 
 debt, and before F.'s death action upon the debt was barred by the Statute of 
 Limitations, the insured was entitled to recover from .the company. Bawls v. 
 American Ins. Co., N. S. iii. 167. 
 
 57. Limitations do not begin to run until there is a breach of the covenant of 
 warranty. Crisfield v. Siorr, N. S. xii. 55. 
 
 58. To avoid the Statute of Limitations the issuing of the writ is the com- 
 mencement of the action. Kirhy v. Jackson, N. S. ix, 574. 
 
 59. Bar by the statute is a reason for allowing amendment, not for its refusal. 
 Dana v. McClure, N. S. vi. 564. 
 
 60. Act runs against claim for professional services, though the relation of 
 client and attorney continues as to other matters. Hale's Ex'rs v. Ard, N. S. 
 iv. 638. 
 
 61. The legislature is the exclusive judge of the reasonableness of the time 
 within which an action may be brought to enforce a right springing from legis- 
 lative enactment. De Moss v. Newton, N. S. ix. 452. 
 
 62. No exception can be claimed in favor of minors, unless they are expressly 
 mentioned by the statute as excepted. Id. 
 
 63. Where the act of incorporation of a railroad company provided that before 
 commencing to use the street the company should purchase the stock, &c., of an 
 omnibus line, at a price to be assessed by three disinterested persons chosen as 
 the act provided, the assessment of the price by such persons was not an award, 
 but an appraisement based on the contract of the parties, and was therefore 
 within the Statute of Limitations. Moore v. Green St. Railroad Co., N. S. ix. 
 225. 
 
 64. The statute affects the remedy only, and belongs to the lex fori. Paine v. 
 Drew, N. S. iii. 381. 
 
 65. Therefore an action may be maintained in one state on a contract which 
 would be barred in the state where it was made. Id. 
 
 66. An action may be barred by a statute passed after the cause of action ac- 
 crued, if a reasonable portion of the time of limitation remain after the enact- 
 ment of the statute. Howell t. Howell, N. S. iii. 378. 
 
 67. The statutory exception against parties absent from the state applies to 
 those who never resided in the state. Paine v. Drew, N. S. iii. 381. 
 
 68. The statute begins to run against a note payable in such portions and at 
 such times as the directors of a company may require, from the time it is given, 
 Colgate y. Buckingham, N. S. iii. 60. 
 
 69. A defence complete under the Statute of Limitations cannot be taken away 
 bv statute, ordinance, or constitutional amendment. Girdner v. Stephens, N. S. 
 x". 201. 
 
 70. A suit to recover for the death of a person, under section 784 of the Code 
 of Indiana, must be commenced within two years. Hanna v. Jeffersonville Rail- 
 read Co., N. S. X. 201. 
 
 71. An agreement not to plead the statute cannot be given in evidence, upon 
 a replication to a jilea that there was no promise within. six years. Cowart ¥■. 
 Perrine, N. S. x. 202. 
 
620 LIMITATIONS. 
 
 72. The promise should be alleged in the bill, and if omitted by inadvertence, 
 the complainant may amend. Id. ^ 
 
 73. A special statute enacting that demands against a bank must be presented 
 ■within two years is legal. Stevens v. St. Louis National Bank, N. S. viii. 
 381. 
 
 74. A petition that shows upon its face that the cause of action is barred by 
 the Statute of Limitations, does not state facts sufficient to constitute a cause f 
 action. Zane V. Zane, N. S. viii. 444. 
 
 7f>. Will not run, between the death of the party and appointment of an ad- 
 ministrator in another state, as to claims prosecuted there. Hicks v. Clark, N. 
 S. viii. 504. 
 
 76. The Statutes of Limitations of the state of Georgia passed during the 
 war, however defective they may have been in point of original authority, 
 ■were ratified by the constitution of 1868, and are valid. Davis v. Hatcher, N. 
 S. X. 519. 
 
 77. The death of a creditor does not suspend the running of the statute. 
 Green, Adm'x, v. Goble, N. S. x. 539. 
 
 78. The failure to pay was the breach from which the cause of action arose, 
 the promise to pay being the birl. Funk v. Smith, N. S. x. 749. 
 
 79. In an action a,gainst an attorney for neglect to collect, the statute begins 
 to run from the time the attorney first became liable, lihinei's Adm'rs v. Evans, 
 N. S. X. 794. 
 
 80. Suit for neglect in not commencing proceedings was brought against an 
 attorney seven years and five months after a note had been placed in his hands 
 for collection. Held, as matter of law, tliat the statute was a bar. Id. 
 
 81. The statute runs against a county or other municipal corporation. " Nul- 
 lum tempus occurrit reipublicas," applies to the sovereign oulv. Evans v. Erie, 
 N. S. X. 799. 
 
 82. Suit brought Oct. 6lh 1868 on a note due Oct. 6th 1862 is not barred by 
 the statute. The day on which the cause of action arose is to be excluded from 
 computation. Menges v. Frick, N. S. xiii. 399. 
 
 83. An amendment will not be allowed that would cut oflF the defence of the 
 Statute of Limitations. Sheldon v. Adams, N. S. iii. 503. 
 
 84. The Statute of Limitations does not begin to run against plaintiff in tro- 
 ver till the termination of prosecution. Hutchinson v. M. ^ M. Bunk, N. S. ii. 
 188. 
 
 85. The period of the Statute of Limitations is to be computed by excluding 
 the time of the war. Semmes v. City Fire Insurance Co., N. S. xi. 418. 
 
 86. A debt barred by the Statute of Limitations of the state in which the bank- 
 rupt resides may still be proven against his estate in bankruptcy. Matter of 
 Sheppard, N. S. vii. 484. 
 
 87. Foreign corporations cannot take advantage of the Statutes of Limit- 
 ations of Kew York. Tioga Railroad Co. v. B. S/- C. Railroad Co., N. S. xiv. 
 257. 
 
 88. A daughter who sues her father's estate for services must prove an ex- 
 press contract and a distinct acknowledgment of the debt within six years of 
 the commencement of suit. Watson's Er'rs v. Stem, N. S. xiv. 526. 
 
 89. The distinct admission of an existing indebtedness presumes " valid in- 
 debtedness. Id. 
 
 90. The reason why Statutes of Limitation are suspended during war is on 
 account of inaccessibility, or inability to sue. Seymour v. Bailey, N. S. xiv. 
 585. 
 
 91. Such disability continues only while the party is abiding in his own 
 country. Id. 
 
 92. Payment of interest by a partner after dissolution of the firm, but within 
 six years of the maturity of a note, will renew it as against the Statute of Lim- 
 itations. Merritt et al. v. Day et al., N. S. xiv. 700. 
 
 93. One member of the firm being a married woman will not alter the effect 
 of such renewal. Id. 
 
 94. To transfer the title to personal property by operation of the statute, there 
 must be some appropriation of it or some act of dominion over it inconsistent 
 with the absolute right of the owner of it. Baker v. Chase, N. S. xiv. 707. 
 
 95. That a debt is barred by the Statute of Limitations of the state in which 
 
LIMITATIONS. ' 621 
 
 It wag contracted and of which both plaintiff and defendant continue citizens and 
 residents, cannot be pleaded in bar to a suit for that debt in the courts of this 
 state. Crorker v. Arey, 0. S. iv. 462. 
 
 96. Tlie first corning into the state of Rhode Island of a person is to be construed 
 as a " return into the state" within the meaning of sect. 2 of " An Act for the 
 limitation of certain personal actions." Id. 
 
 97. Testator by will gave all his real and personal property to his wife, out of 
 which he desired that she would discharge all his legal debts and enjoy the sur- 
 plus for her life, and at her decease the property was to be divided as in the will 
 mentioned. A farm servant of testator left his wages from time to time in his 
 master's hands, and it was agreed between them that the debt thus due should 
 carry interest. Testator died in 1837. In a suit instituted after death of testator's 
 widow in 1854, for administration of his estate, the Statute of Limitations was 
 .held not to bar arrears of interest upon the sum left by the servant in testator's 
 hands. Blower v. BIcwer, O. S. vii, 567. 
 
 98. Statutes of Limitation are suspended during a state of war, as to matters 
 in controversy between citizens of the opposing belligerents, although the statute 
 may have begun to run before the war. Jackson Ins, Co. v. Stewart, N, S, vi. 
 732. 
 
 99. The late conflict between the United States and the states, attempting to 
 secede was a civil war, involving the usual consequences and rights of interna- 
 tional wars, and among them the suspension of the right to sue as between 
 citizens of the opposing belligerents, and therefore the suspension of the Statutes 
 of Limitation. Id. 
 
 100. As regards the state of Tennessee the war must be taken to have com- 
 menced after the President's proclamation of August 16th 1861. Id. 
 
 101. On a recovery by a citizen of Tennessee against a citizen of Maryland 
 after the close of the war for a debt due before its commencement, no interest 
 will be allowed for the period covered by the war. Id. 
 
 102. Unless Congress has otherwise provided, state Statutes of Limitation are 
 applied to controversies in the courts of the United States. Martin v. Smith, N. 
 S. ix. 694. 
 
 103. The fraud which in equity will prevent the running of the Statute of 
 Limitations is that which is secret or concealed, as distinguished from that which 
 is open, visible or known, and a secret or concealed fraud is in equity a -fraudu- 
 lent concealment of the cause of action. Id. 
 
 104. Even in cases of fraud, the statute will in equity begin to run as against 
 the plaintiff, when he has knowledge or information of facts which reasonably 
 creates the belief that the transfer is fraudulent and can be proved to be so ; 
 and if, under all the circumstances, the plaintiff has been guilty of negligence in 
 discovering or attacking the fraud, the statute will begin to operate against him 
 from the period his laches commenced. Id. 
 
 105. What, in the view of a court of equity, will be regarded as a discovery 
 of the fraud, considered. Id. 
 
 106. The statute of Missouri, which provides that " actions for relief on the 
 ground of fraud must be brought witliin five years after the cause of action 
 accrued, but the cause of action shall be deemed not to have accrued until the 
 discovery by the aggrieved party at any time within ten years of the facts con- 
 stituting" the fraud," construed and considered as in substance enacting the 
 equity rule on the same subject, and fixing the period of limitation. Id. 
 
 107. In an action by an assignee in bankruptcy of a fraudulent debtor, where 
 the fraud was continuous, and the debtor remained down to the time suit was 
 brought the real owner of the property sought to he recovered and in possession 
 of it : Held, that the statute did not bar the suit, even though the initial fraudu- 
 lent transaction took place more than five years before suit was commenced. 
 
 Id. ,. J 
 
 108. Accumulating disabilities, of infancy and coverture, cannot be connected 
 to extend time of commencing action under Rev. Stats. Nutter v. De Rochmont, 
 N. S. vi. 252. 
 
 109. If fraud be concealed by defendant's act, so that plaintiff could not have 
 discovered same, statute will not run till its discovery. Edwards v. Gibbs, N. S. 
 vi. 509. 
 
 1 10. When neither party considered that the statute had commenced to run. 
 
622 LIMITATIONS. 
 
 and especially in a case wheve the short statute applied, it should not be allowed 
 to prevail. Calanan v. McClure, N. S. vi. 571. 
 
 111. Short statutes of, highly penal, and to be construed strictly. Id. 
 
 VI. Specialties, and hereik of Scits on Coupons, Moet&ages and Deeds 
 OF Land. 
 
 112. Agreement by creditor to extend time of redemption of land mortgaged 
 for security of his debt does not extend the personal liability of the debtor. Ball 
 V. Wijeth, N. S. iv. 185. 
 
 113. Trust funds of wife lent to her husband by agreement, no interest col- 
 lected, the Statute of Limitations does not apply. Upham v. Wyman, N. S. iii. 
 699. 
 
 114. Right to foreclose mortgage is not lost by the debt becoming barred by 
 the lapse of time. Michigan Ins. Co. v. Brawn, N. S. ii.'571. 
 
 115. It requires the same time to bar a suit upon a coupon as it does on the 
 bond. Lexington v. Butler, N. S. xii. 125. 
 
 116. The statute will not run against a tax deed which is void upon its face. 
 Huhhard v. Johnson, N. S. xii. 126. 
 
 117. The rights of the mortgagor and mortgagee are reciprocal, and when 
 one is barred by the Statute of Limitations the other is also. Arrington v. Lis- 
 com, N. S. viii. 123. 
 
 118. Mortgage barred by twenty years' adverse possession. Reynolds v. 
 Green, N. S. ii. 126. 
 
 119. The Statute of Limitations is not an appropriate defence to a bill filed to 
 establish a lost deed in a chain of title, especially where it is set up by parties 
 claiming under the lost deed. Rockwell v. Servant, N. S. xi. 133; 
 
 120. A debt created by award is not founded on any contract or lending, and 
 is therefore not within the Statute of Limitations. Moore v. Green St. Railway 
 Co., N. S. ix. 225. 
 
 121. Suit on a coupon is not barred by the Statute of Limitations, unless suit 
 on the bond itself would be barred. City v. Lamson, N. S. ix. 577. 
 
 122. An exclusive adverse possession for more than twenty years by a mort- 
 gagee is a complete bar to a suit to recover possession by mortgagor. Crook v, 
 Gfenn, N. S. ix. 452. 
 
 VII. Torts. 
 
 123. Omission to disclose a trespass on land tb the owner will not prevent the 
 running of the statute. Nudd v. Samblin, N. S. iv. 118. 
 
 VIII. New Promise. 
 
 124. An acknowledgment of a debt to a stranger raises no implication of a 
 new promise so as to take the case out of the Statute of Limitations. Anderson 
 V. Allison, O. S. ii. 122. 
 
 125. Acknowledgment of mortgagee in possession taking it out of the running 
 of the statute. Stansjield v. Hohson, 0. S. iii. 318. 
 
 126. Partial payments, in order to take a case out of the Statute of Limitations, 
 must be made under circumstances to warrant a finding, as a question of fact, 
 that the debtor intended to recognise, as subsisting, the debt in question, and 
 that he was willing to pay it. Pickett v. King, TS. S. i. 236. 
 
 127. A temporary absence from the state, without a change of residence, is 
 not the exception contained in the Statute of Limitations, and does not prevent 
 the running of the statute during such absence. Uickok v. Bliss, N. S. i. 240. 
 
 128. Where a reference finds that the defendant was absent from the state by 
 various journeys, at least one year in the aggregate, during the six years, this is 
 not such a finding of absence as will warrant a judgment against the defendant, 
 who has pleaded the Statute of Limitations. Id. 
 
 129. Judgment by default against a debtor sued as trustee or garnishee is not 
 such acknowledgment of the debt as will take it out of the statute. Goodwin 
 V. Buzzell, N. S. iv. 56. 
 
 130. Nor is a conditional promise to pay it sufficient. Id. 
 
 131. Acknowledgment to avoid the statute must be clear, but may be made 
 more than six years after the original cause of action accrued. Yaw v. Kerr, 
 N. S. iv. 443. 
 
 132. The action must be on the original undertaking. Id, 
 
 133. A partial payment made upon a note, by one of two administratrixes, 
 from the assets of the estate and before the Statute of Limitations has set its bar, 
 
LIMITATIONS. 623 
 
 saves the obligation tip to the time of such payment. Heath, Adm'x, r. Grenell, 
 Adm'x, N. S. xi. 833. . 
 
 134. Bat a payment made out of the funds of the adminisratrix cannot be 
 construed so as to revive the demand against the intestate's estate. Id. 
 
 135. A payment on account of an existing debt is an unequivocal acknowledg- 
 ment and will take it out of the Statute of Limitations, Barclay's Appeal, N. 
 S. X. 349. 
 
 136 The Maryland Code of Public Laws does not prevent a new promise to 
 pav, made on Sunday, from removing the bar of the Statute of Limitations. 
 Thomas v. Hunter, N. S. viii. 699. 
 
 137. Silence on the part of the party liable after an action accrues is not of 
 itself saflScient to avoid the statute. Stanley v. Stanton, N, S. xii. 404. 
 
 138. What payment will take a case out of. Milter v. Talcot, N. S. vi. 188. 
 
 139. The acknowledgment must be in writing to take a claim out of the stat- 
 ute. Green, Adm'x, v. Goble. N. S. x. 539; 
 
 140. A verbal promise to pay a note has the same effect as a new note. Sen- 
 nott V. Horner, N. S. iii. 313. 
 
 141. An offer by defendant's attorney to settle a claim, without defendant's 
 authority, does not take a case out of the Statute of Limitations. Morris v. 
 Hazlehurst, N. S. ix. 580. 
 
 IX. Eealtt. 
 
 142. Adverse possession. Where one claims by adverse possession, and hin 
 title depends upon the extent of his actual occupancy, he must present to the jury 
 evidence of distinct lines and boundaries, up to which his occupancy for the 
 requisite time has extended, in such a way that there can be no difficulty in fram- 
 ing a clear and definite verdict; otherwise, his claim must be rejected. Sheik 
 r.McIlroy, 0. S. i. 123. 
 
 143. Where an ejectment was begun before, but the plaintiff aliened after 
 the Statute of Limitations had expired, and the Act of 1850 was subsequently 
 passed, and the alienee was substituted under it, it was held, that the alienation 
 by the plaintiff before the act amounted so far to a discontinuance that the de- 
 fendant then acquired an absolute title to the land ; and that the act could not 
 constitutionally be made retrospective, so as by the substitution to revive title to 
 the alienee of the plaintiff. Dillon v. Dougherty, 0. S. ii. 189. 
 
 144. A tenant by the curtesy is given no new right of entry by the death of 
 his wife, and hence, if the period of the Statute of Limitations has run out in her 
 lifetime, his life-estate is barred thereby, in all respects. Where the statute begins 
 running, and expires during coverture, tliough the wife is not affected thereby, 
 yet the husband cannot resuscitate his life-estate, by bringing an ejectment in 
 the name of husband and wife. Crow v. KightUnger, 0. S. iv. 383. 
 
 145. The effect of evidence of continuous possession, as the basis of a claim of 
 title, is not diminished by proof of occasional interruptions. Raynor v. Lee, N. 
 S. x. 604. 
 
 146. Where a sheriff's vendee refuses to comply with a sale, and the Innd is 
 subsequently sold, the statute begins to run from the time of refusal. Fank v. 
 Smith, N. S. x. 749. 
 
 147. One who has been in adverse possession of land for twenty-one years, 
 claiming it under his father's will, is protected by the statute, as against the 
 other devisees, though his possession be in fact inconsistent with the terms of his 
 devise ; and it is not material that he had been in possession of the same land 
 before his father's death; Stewart v. Stewart, 0. S. iv. 384. 
 
 148. In respect to real estate. The Act of Limitations of New Jersey, limiting 
 the right of entry on lands to twenty years, provides that in case of certain dis- 
 abilities, the time during i^'hich the person who shall have the right of entry 
 shall be under any such disability, shall not be taken or computed as part of 
 said period of twenty years. Hehl, that when the statute has once begun to run, 
 it will continue to run over all subsequent disabilities. Roberta v. Moore, 0, S. 
 ix. 25. 
 
 149. The ruling of the Supreme Court of New Jersey in Den d. Clark v. Rich- 
 ards (3 Green 347), approved. Id. 
 
 150. A refusal by one tenant in common to let his co-tenant come In or par- 
 ticipate in the enjoyment of the common property, is equivalent to turning him 
 out, and constitutes an adverse possession. Id. 
 
624 LIMITATIONS. 
 
 151. The possession of lands by an agent or manager is an actual possession, 
 within the meaning of the thirty years act of New Jersey, and constitutes an ad- 
 verse possession as against a co-tenant. Id, 
 
 152. The doctrine of adverse possession is to be taken strictly. Such a pos- 
 session is not to be made out by inference, but by clear and positive proof. 
 Every presumption is in favor of possession in subordination to the title of the 
 true owner. Huntingdon v. Whaley, N. S. i. 244. 
 
 153. It is of no consequence that the purchaser did not discover the fraud 
 within six years. Northrop \. Hill, N. S. xi. 397. 
 
 154. It is the misrepresentations and not the resulting damages which consti- 
 tute the cause of action. Id. 
 
 155. Defendant not entitled to a conveyance; setting up title cannot affect plain- 
 tiff till the latter has distinct knowledge of the adverse claim. Robinjon v. 
 Sherwin, N. S. iv. 574. 
 
 156. A party who has been in the exclusive adverse possession of lands for a 
 period of time which, under the Statute of Limitations, vests him with a title 
 thereto, may maintain an action against a party claiming under a record title, 
 to have said adverse claim determined and adjudged null and void as against 
 him, Arrington v. Liscom, N. S. viii. 123. 
 
 157. The plaintiffs were the owners of the reversion of an ancient house. The 
 defendants, more than six years before the commencement of the action, worked 
 some coal mines two hundred and eighty yards distant from it. No actual dam- 
 ages occurred until within the six years. The Exchequer Chamber held (reversing 
 the judgment of the Court of Queen's Bench), that no cause of action accrued 
 from the mere excavation by the defendant on his own land, so long as it caused 
 no damage to the plaintiffs, and that the cause of action accrued when the actual 
 damage first accrued, and therefore the Statute of Limitations was not a bar. 
 This judgment was affirmed in the House of Lords. Backhouse v. Bonomi, N. S. 
 i. 175. 
 
 158. The mere verbal assertion of a claim without entry will not bar the 
 statute. Fullam v. Welih, N. S. xi. 267. 
 
 159. Maintenance of fence in a highway for forty years gives a right to con- 
 tinue it there as agamst the public. Cutter v. Cambridge, N. S. iii. 316. 
 
 160. Averment that land liad not been adversely occupied for such period, de- 
 fective. Reynolds v. Green, N. S. ii. 126. 
 
 X. Judgment. 
 
 161. It seems that an action on a foreign judgment, not being a judgment of 
 one of the United States, will be barred in four years. Reid v. Boyd, O. S. iv. 446. 
 
 162. A bill to revive a suit in equity, founded on a judgment obtained more 
 than twenty years previously, will be dismissed. Bird's Administratrix v. Jasler's 
 Executrix, N. S. xii. 466. 
 
 163. Statute of Limitations does not begin to run against claims of an attor- 
 ney for services until entry of the judgment in the suit in which the services were 
 rendered. Eliot v. Lawton, N. S iii. 566. 
 
 XI. Residence op Paett out of the State, Effect of. 
 
 164. Where the defendant passed through New York more than six years before 
 the commencement of the action, but was only there temporarily, and all the de- 
 fendants had resided in Pennsylvania since the cause of action accrued : Held, 
 that the action was not barred by the New York Statute of Limitations. Gans 
 V. Frank, N. S. i. 635. 
 
 165. If a debtor comes into this state (New York) before process is served on 
 him, and he then leaves the state to reside elsewhere, the statute is not a bar until, 
 after deducting all the time of residing abroad, the debtor has been in this state 
 for six years. Jd. 
 
 166. Neither absence from the state, nor residence out of it, will suspend the 
 running of the statute. Campbell v. White, N. S. xi. 534. 
 
 167. Residence out of the state, to have that effect, must be more than a place 
 of abode ; it must be the domicile of the party. Id, 
 
 168. Statutes of limitation do not run during the rebellion against person 
 residing out of the rebellious states, so as to preclude his remedy against one re- 
 siding in those states. ' The Protector, N. S. ix. 516. 
 
 169. The Act of March 1867 is an enabling act. Id, 
 
LIMITATIONS— LIQUIDATED DAMAGES. 625 
 
 511. Claims against Decedent's Estate. 
 
 170. Though a creditor or legatee is entitled to interpose the Statute of Limit- 
 ations to a claim against a decedent's estate, vet if he neglects to do so, the ad- 
 ministrator or executor is not bound so to do, if he believes the debt justly due, 
 and if he pay the debt without objection it cannot afterwards be charged against; 
 him in his account. Sitter's Appeal, 0. S. ii. 572. 
 
 171. An action on an administrator's bond in Missouri has ten years to run 
 from the accruing of the action. Martin v Knapp, N. S. ix. 324. 
 
 172. All claims against a solvent decedent's estate in Georgia arc barred in 
 three years from the granting of administration, unless suit be commenced. 
 Boll y. Woodman, N. S. xi. 327. 
 
 173. Claim against estate not barred till six months after its final rejection 
 by executor. Calanan v. McClure, N. S. vi. 563. 
 
 XIII. Trusts. 
 
 174. Qualifications of the doctrine that a trust is not barred by lapse of time. 
 Philips V. Slate, 0. S. iv. 636. 
 
 175. The statute is a good plea to a bill for account of trust funds, where the 
 trust arises only by implication. AcClane's Adm'x v. Shepherd's Ex., N. S. x. 
 279. 
 
 176. The Statute of Limitations has no application to an express trust, where 
 there is no disclaimer. Seijmour v. Freer, N. S. ix. 199. 
 
 177. The Statute of Limitations applies to trust estates. Crook v. Glen, N. 
 S. ix. 452. 
 
 XIV. How AND HOW PAR AVAILABLE IN EQUITY, AND WHEN FrAUD AND CON- 
 CEALMENT WILL Pretest the Running of. 
 
 178. Fraud, whereby plaintiff was prevented from discovering his cause of 
 action before, is no answer to a plea of the statute. Imp. Gas-tight Co. v. London 
 Gas-light Co., 0. S. iii. 128. 
 
 179. Courts of equity not bound by, and n'ever permit plea of, when conscience 
 would be violated. Calcote v. Stanton, 0. S. iii. 50. 
 
 180. Fraud and concealment will prevent the running of statute. Id. 
 
 181. The statute will begin to run against a cause of action to recover dam- 
 ages for fraudulent representations in a sale of real estate, as regards encum- 
 brances, the moment the conveyance is made. Northrop v. //('//, N. S. xi. 397. 
 
 182. Where the facts stated in the bill show that the claim is barred by the 
 Statute of Limitations, advantage of it may be taken by demurrer. Bird's 
 Adm'x v. Gasler's Ex'x, N. S. xii. 466. 
 
 183. In equity the Statute of Limitations may be set up by plea, answer or 
 demurrer. Ruckman v. Decker, N. S. xii. 469. 
 
 184. The administrator cannot by a promise in writing take a claim out of 
 the operation of the Statute of Limitations, or omit to plead it. Mall v. Wood- 
 man, N. S. xi. 328. 
 
 LIMITED PARTNERSHIP. 
 
 1. No partnership is limited in Pennsylvania, unless it be formed in strict com- 
 pliance with the Acts of Assembly relating to limited partnership. Richardson 
 v. Hogg, N. S. i. 61. 
 
 2. The capital contributed by aspecial partner must be actual cash ; it cannot 
 be in a stock of goods. Id. 
 
 3. So where it was agreed that the son of the special partner was to have a 
 general supervision of the business at a salary, and no note or check was to be 
 drawn by the firm without the son's approval, it was held, that the partnership 
 was not limited, but general, and the special partner was liable for the firm debts. 
 Id. 
 
 LIQUIDATED DAMAGES. See Damages ; Mining-lease. 
 
 1. Defendant bound himself in writing to the plaintiff " in the full and liqui- 
 dated sum of $1000, over and above the actual damages which the plaintiff might 
 sustain by reason of such non-performance. In an action to recover the $1000, 
 held, that the sum named was liquidated damages, and recoverable." Dwmel 
 V. Brown, N. S. vii. 441. 
 
 2. Uncertainty of extent of injury a criterion in distinguishing between 
 penalty and liquidated damages. Powell v. Borroughs, N. S. vii. 315. 
 
 40 
 
626 LIQUOR— LOCAL OPTION. 
 
 LIQUOR. See Pkohieitory Liqcoe Law. 
 
 1. Sale of, to person in habit of getting intoxicated. See Miller r. State 
 of Ohio, O. S. iv. 768. 
 
 2. Action for price of, when illegally consigned for sale. See King v. Mc- 
 Evoy, N. S. i. 689. 
 
 3. Action against innkeeper for furnishing to husband, causing his intoxica- 
 tion, whereby he was killed. See Fink v. (jrarmnn, N, S. i. 499. 
 
 4. Act prohibiting dram shops in Iowa, constitutional. See State rf Iowa v. 
 Our House, 0. S. i. 697. 
 
 5. Constitutionality of law prohibiting sale of. See Constiictionai. Law. 
 
 6. Inspection of. See Inspection Laws. 
 
 LIS PENDENS. ' 
 
 1. Action will lie for tort committed abroad, notwithstanding the pendency of 
 proceedings in the foreign court for the same cause of action. Seymour v. Scott, 
 N. S. iii. 438. 
 
 2. Pendency of another action in relation to same matter. Marshall v. Goadby, 
 N. S. iii. 438. 
 
 3. The plea of lis pendens in another state is no defence. Smith v. Lathrop, 
 N. S. iii. 107. 
 
 4. The doctrine of lis pendens does not apply to negotiable paper. Winston v. 
 Wester/eldt, 0. S. ii. 619. 
 
 5. An injunction in force against the negotiation of a note does not destroy its 
 negotiability. Id. 
 
 6. An indorsee who acquires a negotiable note before maturity, boni, fide and 
 for valuable consideration, without notice, is not bound by a decree in a chancery 
 suit to which his indorser was a party, although he acquired the note after the 
 rendition of the decree. Id. 
 
 7. Is a good plea in abatement without showing actual vexatiousness. Gamsby 
 V. Eay, N. S. xiii. 58. 
 
 8. It is the duty of a defendant to plead lis pendens, in abatement of a suit 
 improperly brought. Bernecker v. Miller, N. S. ix. 196. 
 
 9. Notice of, by Code in 1859, might be filed before service of the summons 
 upon defendant. Stern v. O'Connell, N. S. vi. 252. 
 
 10. When subsequent mortgage barred thereby. Id. 
 
 11. Purchaser of land during suit takes subject to plaintiff's rights. Baughicout 
 V. Murphy, N. S. x. 202. 
 
 12. Lis pendens only takes effect from service of the subpoena. Id. 
 
 13. A subsequent purchaser of land is only protected as to money actually paid 
 before notice. Id. 
 
 14. Unless the parties to the actions are the same, a stay of proceedings will 
 not be granted on the ground of lis pendens. People v. Northern Railroad Co., N. 
 S. riii. 638. 
 
 15. The plea of, must show that the same title, the same injury, and the 
 same subject-matter are in controversy, in an action to recover land. Larco v. 
 Clements, N. S. viii. 699. 
 
 16. Is not notice to anybody to affect or operate upon existing rights. Hunt 
 V. Haven Sf A., Administrators, N. S. xii. 593. 
 
 17. In equity the purchase of property pendente lite from a party to the suit, 
 is held to be notice to the purchaser. Id. 
 
 LIVES AND TIMES OF THE CHIEF JUSTICES of the Supreme Court of 
 the United States — leading article on the subject. 0. S. iii. 592. 
 
 LIVE STOCK. See Corporation ; Railroad. 
 
 1. Carriers of live stock are not insurers. Louisville Railroad Co. v. Hedger, 
 N. S. xiii. 145. 
 
 2. Common carriers cannot discharge themselves from liability of exercising 
 diligence and prudence by any contract with the owner of the live stock. Id. 
 
 LOCAL LAW. See Lien. 
 
 LOCAL LEGISLATION. See Constitutional Law. 
 
 LOCAL OPTION. 
 
 1. The legislature, under the power to make police regulations, may prohibit 
 the sale of alcoholic stimulants. State v. Morris, N,, S. xii. 32. 
 
LOCAL OPTION— LUNATIC. 627 
 
 2. The constitutionality of local option laws — subject discussed. N. S. xii. 
 !29. 
 
 LODGING-HOUSEKEEPERS. Liabilities of— subject discussed. 0. S. iii. 257. 
 
 LOOKOUT. See Collision. 
 
 LOST BILL — though unindorsed, given on account of debt, is an answer to an action 
 for the debt. Crowe v. Claij, 0. S. iii. 123. 
 
 LOST GOODS. 
 
 1. Finder of a pocket-hook in a shop, not authorized to take and hold against 
 shopkeeper. McAvoi/ v. Medina, N. S. vi. 189. 
 
 2. Dutv of finder to restore — when their retention will be larceny. Reg. v. 
 Christopher, 0. S. vii. 508. 
 
 LOST INSTRUMENTS. 
 
 Securities withlield by the rebel state auditor are not lost within the meaning 
 of the article of the Civil Code of Louisiana. Bank v. New Orleans, N. S. v. 555. 
 
 LOST PAPERS. See Evidence. 
 
 When secondary evidence of contents will be received. Mai/s v. Moore, 0. 
 S. iv. 444. 
 
 LOTTERY. 
 
 A bill by a partner of a lottery firm against his co-partners will not be enter- 
 tained iu New Jersey. Watson v. ilurraij, N. S. xii. 320. 
 
 LOUISIANA PROVISIONAL COURT. Historical sketch and account of. N. S. 
 iv. 257, 385 ; and see United States v. Reiter, and United States v. Louis, N. S. 
 It. 534. 
 
 LOUNGERS in a public street— a nuisance. See Street, 21. 
 
 LOW-TV'ATER LINE on the Delaware river at Philadelphia to be defined by the 
 port wardens. See Mandamus. 
 
 LUNATIC. See Insanity. 
 
 1. In an ordinary foreclosure suit the court will not inquire into the validity 
 of the mortgage on the grouad of the lunacy of the mortgagor ; but will direct 
 the defendants to try its validity by an ejectment, or by an issue as to the ques- 
 tion of sanity. Jacobs v. Richards, 0. S. iii. 126. 
 
 2. A judgment recovered on default, against a person admitted to have been 
 non compos mentis at the time of the proceedings in the case, will be reversed 
 on a writ of error brought by his administrator. Leach v. Marsh, N. S. ii. 22. 
 
 3. Actions brought against persons non compos for necessaries, it seems, con- 
 stitute an exception ; but, in such case, the defendant iu error should plead the 
 fact in bar of the suit. Id- 
 
 4. Will made by lunatic with lucid intervals, evidence may be given of his 
 instruction to draw a different will shortly before he was found lunatic. Titlow 
 V. Titlow, N. S. vii. 319. 
 
 5. A subscribing witness may give his opinion of the testator's capacity with- 
 out the facts on which it is founded ; other witnesses may not ; but after they 
 have testified to the facts their opinions may be placed before the jury. Id. 
 
 6. Will legally made, but destroyed by testator through fraud and undue in- 
 fluence, may be established as still in force. Voorhis v. Voorhis, N. S. vii. 640. 
 
 7. The ratification of a deed executed during insanity will not make it effectual 
 as against the grantor's prior deed, executed while he was sane, and recorded 
 after the formal execution, but before the ratification, of the second deed. Bond 
 v. Bond, N. S. iii. 507. 
 
 8. A party seeking to establish a deed, the validity of which is questioned on 
 the ground that the grantor was insane at the time of its execution, has no 
 ground of exception to an instruction to the jury that " if the insane delusion 
 was such that the party, though knowing that he was making a deed, and what 
 its effect would be, yet was rendered indifferent to property by an insane delusion 
 
 .that he was about to perish, so that he was incapacitated from a rational care for 
 his interests or theirs, then the deed may be avoided." Id. 
 
 9. Application of separate estate to maintenance of insane wife. Davenport 
 \. Davenport, N. S, iii. 63. 
 
 10. Mental unsoundness, as aflTecting testamentary capacity — subject discussed. 
 N. S. iii. 385. 
 
628 LUNATIC. 
 
 11. Senile dementia — subject discussed. N. S. iii. 449. 
 
 12. One journeying with lunatic at former guardian's request may recover 
 I roper expenses. Kendall v. May, N. S. v. 319. 
 
 13. Evidence of value of services in such case. Id. 
 
 14. Onus is on defendant alleging insanity. State v. McCoy, N. S. iv. 120. 
 
 15. On allegation of third party that libeilant for divorce is insane, the court 
 may appoint a guardian ad litem. Denny v. Denny, N. S. iv. 311. 
 
 16. Inquisition charges the presumption in favor of sanity, and casts onus on 
 party setting up a contract ; but mere proof of habitual intemperance, apart from 
 finding by inquisition, is not enough for that purpose. Noel v. Karper, N. S. 
 vii. 123. 
 
 17. Chancery can order a second inquisition of lunacy, either when the first 
 is irregular or unsatisfactory from the finding being against evidence, or by a 
 mistake of the jury as to their duty. Or it will order a second inquisition some 
 time after the first, if it appears that there is an evident change in the condition 
 of the subject. Matter of Collins, N. S. vii. "CO. 
 
 18. Imbecility for which commission will issue must amount to unsoundness 
 of mind, and there is no presumption against the mind of a person one hundred 
 years of age. Id. 
 
 19. Where a creditor had been found lunatic in Scotland and a curator bonorura 
 appointed there, held, that such curator bonorum has alone a right to sue and' 
 give discharges for personal estate to the lunatic in England. Scott v. Bentley, 
 0. S. iii. 566. 
 
 20. The debtor not disputing his liability nor the amount due, but only the 
 right to give a discharge, paid the amount into a bank : Held, that this was equiv- 
 alent to a declaration of trust, and that the curator bonorum was right in pro- 
 ceeding in equity. Id. 
 
 21. Although a purchaser obtained an estate from a lunatic through undue in- 
 fluence and for an inadequate consideration, a court of equity, upon the sale to 
 a subsequent purchaser for value, without notice, would not, in the absence of 
 proof of notice, look at any evidence to vitiate the sale. A purchaser must not 
 disregard plain marks and symbols of fraud. Greenslade v. Dare, 0. S. iv. 126. 
 
 22. A writ against a lunatic, without suggestion of inquisition of lunacy, and 
 served on a man whom the sheriff in his return called trustee, is simply a writ 
 against one, and a service on another, which justifies a judgment against neither. 
 Laird v. Huling, 0. S. i. 635. 
 
 23. Mortgage made by, to bonS. fide mortgagee, valid. Campbell v. Hooper, 
 O. S. V. 563. 
 
 24. The contract of a lunatic is not necessarily void. In the case of Dane v. 
 Lady Kirkwall, the court instructed the jury : "It is not sufficient that Lady 
 Kirkwall was of unsound mind, but you must he satisfied that the plaintiff' knew 
 it and took advantage of it." Id. 
 
 25. It is well settled that contracts of lunatics and others of unsound mind, 
 as a general rul'e, are not binding. Note to Leach v. Marsh, N. S. ii. 30. 
 
 26. The exceptions to this rule are: (1.) Where merchants apparently sane 
 have purchased goods in the ordinary course of business and sold them so that 
 the goods cannot be restored ; (2.) Contracts for necessaries for the lunatic and 
 his family to same extent as when furnished to infants. Id. 
 
 27. The whole subject elaborately discussed in Lang v. Whidden, 2 N. H. 
 435, where the authorities are extensively quoted. Id. 
 
 28. It is a presumption of law that the party indicted for a crime is sane, and 
 the burden of proof is upon the defendant to show that he was insane at the time 
 of the commission of the crime charged. State of Missouri v. McCoy, N. S. iv. 120. 
 
 29. Condition in life policy that in case insured shall die by his own hand, 
 &c., the policy shall be void, does not include suicide during insanity. Easter- 
 brook V. Ins. Co., N. S. vii. 445. 
 
 30. In an action on a policy of life insurance where the assured, being insane 
 at the time, committed suicide, the company set up the defence that the deceased 
 had fraudulently concealed from them the material fact that his mother and 
 brother died insane : Held, that it was not necessai-y that a man should volun- 
 tarily state the circumstances attending the deaths of his relations Duff v. 
 Gant, 0. S. i. 244. 
 
 31. The burden of proof in cases of insanitj- — leading articles on the subject. 
 N. S. ix. 201, 329 ; O. S. iv. 705. 
 
MACHINEEY — MALICIOUS PROSECUTION. 629 
 
 MACHINERY. 
 
 Defects in, see Raiiroad. 
 
 WUen to be considered a fixtilre, see Fixture. 
 
 MAGAZINE. 
 
 1 . Or other periodioal,as to right of general editor to alter articles contributed 
 by others under their own name. Malgaigne v. De Saint Priest, 0. S. i. 42. 
 
 2. The editor of a periodical cannot suspend the publication of a literary 
 work without, author's consent. Saint Julien v. Douniol, 0. S. i. 46. 
 
 MAIL. 
 
 1. An acceptance by letterof an offeris sufficient to make a contract. Trevor 
 T. Wood, N. S. vii. 215. 
 
 2. Neutral merchant vessel carrying mail is not privileged by that fact from 
 examination. The Peterhoff, N. S. vii. 62. 
 
 MAINE LIQUOR LAW. See Constitutional Law. 
 
 MALICE. 
 
 1. In morals and in law. Subject discussed, 0. S. vi.. 321. 
 
 2. Is a corporation capable of ? Subject discussed, 0. S. viii. 701. See 
 Holt V. Parsons, commented on, 0. S. viii. 764. 
 
 MALICIOUS DAMAGE. 
 
 1. The cords employed to raise the "harness" or working tools of a loom in 
 order to move the shuttle to and fro, constitute "tackle employed in weaving: 
 and, therefore, cutting them is an offence within the statute which makes it 
 felony J to maliciously cut, break or destroy, or damage with intent to de- 
 stroy, or to render useless [inter alia) any 'tackle' or implement, whether 
 fixed or movable, prepared for or employed in carding, spinning, thro.wing, 
 weaving," &c. Under this statute the maliciously cutting such tackle is a 
 complete offence, and it is not necessary to aver or prove an intention to 
 destroy or render it useless. Reg. v. Smith, 0. S. ii. 574. 
 
 2. Maliciously throwing stones against railway carriage, see Reg. v. Court, 
 O. S. ii. 507. 
 
 MALICIOUS PROSECUTION. 
 
 1. The advice of counsel who have been fully informed of the facts is a 
 complete justification. Stanton v. Hart, N. S. xiii. 394. 
 
 2. A verdict of guilty, which was subsequently set aside, is no evidence of 
 probable cause in a suit for malicious prosecution. Richter v. Koster, N. S. 
 xiv. 57. 
 
 3. Malice cannot be inferred in defendant because he testified before the 
 grand jury as to a criminal offence, supposed to have been committed by 
 plaintiff. Id. 
 
 4. Precedent for count in malicious prosecution given in 2 Ch. PI. 611, 
 defective in substance. Drew y. Potter, N. S. vi. 571. 
 
 5. Where a prosecutor had, in the first instance, fairly submitted the facts 
 of his case to private counsel, and had followed the advice obtained, in good 
 faith, it is an answer to an action for malicious prosecution. It is not 
 necessary that the facts stated should in law really warrant the opinion on 
 which he acted. Walter v. Sample, 0. S. iv. 384. 
 
 6. An action for falsely and maliciously procuring the plaintiff to be ad- 
 judged a bankrupt may be maintained, though the affidavit before the Com- 
 missioner of Bankruptcy did not show an act of bankruptcy, and tlie 
 Commissioner made a mistake in point of law in adjudging plaintiff to be a 
 bankrupt. Farlie v. Banks, 0. S. iii. 508. 
 
 7. Declaration stated that defendant had falsely and maliciously procured 
 plaintiff to be adjudged a bankrupt. Action maintainable, although the 
 affidavit did not show an act of bankruptcy committed, and the Commissioper 
 had committed an error in adjudicating plaintiff to be a bankrupt. Farley v. 
 Danks, 0. S. iv. 122. 
 
 8. Ground of the action. Drew v. Potter, N. S. vi. 671. 
 
 9. What is an insufficient averment of the prosecution or judicial pro- 
 ceeding. Id. 
 
 10. Burden of showing probable cause. Smith v. Ege, N. S. vi. 637. 
 
 11. What probable cause is, and on what it depends. Id. 
 
630 MALICIOUS PEOSECUTION. 
 
 12. Rumors, and representations of others, as a foundation for teTief of 
 guilt. Smith t. Ege, N. S. vi. 637. 
 
 13. What was reasonable ground for belief of guilt of murder. Id. 
 
 14. What plaintiff must prove to maintain. Miller v. Milligan, N. S. vi. 717. 
 
 15. Malice and want of probable cause must both be proved. Id. 
 
 16. When plaintiff should be nonsuited. Id. 
 
 17. Probable cause depends upon the prosecutor's belief of guilt or inno- 
 cence. Id. 
 
 18. When he will be deemed to have had probable cause. Id. 
 
 19. In malicious prosecution, on error, whole evidence must be given. 
 Smith V. Ege, N. S. vi. 637. 
 
 20. In an action for a malicious prosecution, the evidence introduced on 
 the trial of that prosecution is admissible, for the purpose of showing reason- 
 able and probable cause. And such evidence may be proved by any compe- 
 tent witness. Goodrich v. Warner^ 0. S. i. 569. 
 
 21. To support an action for malicious prosecution the plaintiff must 
 prove affirmatively, that he was prosecuted, that he was exonerated or dis- 
 charged, and that it was both malicious and without probable cause. Boyd 
 V. Oross, N. S. xi. 535. 
 
 22. Malice is a question of fact for the jury, and is generally inferred from 
 want of probable cause, but such presumption is only prim& facie, and may 
 be rebutted. From express malice, however, want of probable cause cannot 
 be inferred. Id. 
 
 23. Want of probable cause is a mixed question of law and fact. Id. 
 
 24. Probable cause is a reasonable ground of suspicion, supported by cir- 
 cumstances sufficiently strong to warrant a cautious man in believing another 
 guilty. Id. 
 
 2-5. Judgment in favor of plaintiff sufficient but not conclusive evidence of 
 probable cause, though reversed on second trial. Palmer v. Avery, N. S. iii. 
 637. 
 
 26. An acquittal and discharge after full investigation by a magistrate, 
 are primA facie evidence of want of probable cause, and throw the burden 
 of proof on the defendant. Straus v.Tourtg, N. S. xii. 192. 
 
 27. Malice may be inferred from want of probable cause. Id. 
 
 28. Malice may be inferred from the zeal and activity of the defendant in 
 conducting the prosecution. Id. 
 
 29. Evidence that party acted under advice of magistrate or person not 
 learned in the law, is inadmissible to show the absence of malice. Id. 
 
 30. If the jury find that the prosecution originated without probable cause, 
 and if pursued was persisted in for some private end, they may give punitive 
 damages. Cooper v. Utterhach, N. S. xii. 789. 
 
 31. In order to relieve himself from liability the defendant must show that 
 he acted without malice under legal advice upon a full disclosure of all the 
 facts to his counsel. Id. 
 
 32. Probable cause means the existence of such facts and circumstances as 
 would excite the belief in a reasonable mind that the plaintiff was guilty of 
 the crime for which he was prosecuted. Id. 
 
 33. Where there is want of probable cause the jury may infer malice. Id. 
 
 34. Probable cause, as a defence in an action for malicious prosecution, is 
 a reasonable ground of suspicion, supported by circumstances sufficiently 
 strong in themselves to warrant a cautious man in the belief that the person 
 accused was guilty of the offence charged. Ross v. Inness, N. S. iv. 281. 
 
 3-5. A want of probable cause cannot be inferred from malice, though 
 malice may be inferred from want of probable cause. In an action the bur- 
 den is on the plaintiff to show affirmatively, by circumstances or otherwise, 
 that the defendant had no ground for the prosecution. Id. 
 
 36. That the defendant acted under advice of counsel cannot avail, unless 
 there was a full statement of all the facts to the advising counsel, nor unless 
 the arrest was made in consequence of such advice, and not in pursuance of 
 a previous fixed determination to make such arrest. Id. 
 
 87. Evidence that the prosecution was to obtain possession of goods is 
 proof of want of probable cause. Schofield v. Ferrers, N. S. iv. 443. 
 
 38. Want of cause is not malice but evidence of it. Id. 
 
 39. Record of replevin for the property alleged to have been stolen is not 
 admissible. Id. 
 
MALPRACTICE— MANDAMUS. 631 
 
 MALPRACTICE. 
 
 1. There is an implied obligation on a person professing to practise as a 
 surgeon tlial be should possess the ordinary skill of the profession, Wilmot 
 V. Howard, N. S.yi. 774. 
 
 2. A surgeon is liable for improper treatment of a patient under his 
 charge. Jd. 
 
 MANDAMUS. See Municipal Subscription. 
 
 I. WUERE IT WILL AND WILL NOT LIE. 
 
 1. Will not lie by private citizen to compel performance of public duty. 
 hobbetty. The State, N. S. xii. 124. 
 
 2. Where private citizen sues he must show an interest specific and pecu- 
 liar in himself. Id. 
 
 3. Voters and freeholders have no such specific interest as will sustain 
 mandamus to compel county board to order election. Turner v. The County 
 Commissioners, N. S. xii. 125. 
 
 4. The member elected has a right to receive the certificate of election, 
 and if it is refused liim he may call upon the courts for redress by mandamus. 
 People V. Hilliard, N. S. ii. 274. 
 
 6. The federal courts have jurisdiction and power to issue the writ of 
 mandamus. Learned v. Burlington, N. S. ii. 394. 
 
 6. Is the appropriate remedy to restore an attorney disbarred where the 
 court below has exceeded its jurisdiction in the matter. Ex parte Robinson, 
 N. S. xiii. 435. 
 
 7. A voluntary society incorporated may be compelled by mandamus to 
 restore to one of its members a right of which he has been Illegally deprived. 
 Koehler v. M. A. Society, N. S. xi. 460. 
 
 8. Corporations bound to keep records, and the proceedings necessary to 
 authorise their action against an accused member must appear of record. Id. 
 
 9. Courts may issue mandamus to county officer to levy tax to pay certain 
 bonds. Riggs v. Johnson, N. S. vii. 572. 
 
 10. Is not the appropriate remedy to enforce payment of money due by 
 municipal corporation for work and labor. The State ex rel. Little v. Township 
 of Union, N. S. xiv. 124. 
 
 11. Is a compulsory not a revisory writ. Ex parte Harris, N. S. xiv. 646. 
 
 12. Not the proper remedy to try right to public office. Id. 
 
 13. The approval of the official bond of a public officer is the exorcise of 
 judicial and not ministerial power. Id. 
 
 14. Quo warranto and not mandamus is the proper remedy to try the title 
 of an officer de facto who has been appointed to fill the place of a party elected, 
 who has failed to file his bond in time. Id. 
 
 15. To compel payment of tax. It is a well-established principle of the 
 common law that the writ of mandamus is a remedy to compel any person, 
 corporation, public functionary, or tribunal, to perform some duty required 
 by law, where the party seeking relief has no other legal remedy, and the 
 duty sought to be conferred is clear. Commissioners of Knox County v. Aspin- 
 wall, 0. S. ix. 347. 
 
 16. The Circuit Court of the United States has authority, under the Judici- 
 ary Act, to issue a mandamus to compel County Commissioners to levy a 
 special tax provided by Act of Assembly to pay the interest on the county's 
 coupon bonds, issued under authority of law. Id. 
 
 17. Should not issue unless the relator's right is clear to have the things 
 sought by it done, and unless the party sought to be coerced ought to do it. 
 People ex rel. Harless v. The Secretary of State, N. S. iii. 314. 
 
 18. Confers no new right. Can only compel the performance of an exist- 
 ing duty. Id. 
 
 19. Will not lie to compel a governor of a State to perform an official 
 duty. Id. 
 
 20. A statute passed under the forms of law is binding upon all public 
 ministerial officers, and obedience will be enforced by mandamus. People v. 
 Salomon, N. S. ix. 232. 
 
 21. Where title of drawee of city warrant to the money is disputed, mayor 
 cannot be compelled by mandamus to sign the warrant. People v. Booth, N. 
 S. vii. 315. 
 
 22. If return be sufficient in law though false in fact, a peremptory writ 
 
632 MANDAMUS. 
 
 will be refused until the return be falsified by action. Dane t. Derby, N. S. 
 Tii. 190. 
 
 23. Practice concerning. Id. 
 
 24. Will lie to reinstate a city attorney, wrongfully removed from office. 
 City of Madison t. Korbly, N. S. x. 70. 
 
 25. The writ cannot be properly granted to one who has previously insti- 
 tuted proceedings in equity for the same cause of complaint, ffardcaatle v. 
 Maryland R. Co., N. S. x. 130. 
 
 26. Will lie by a volunteer to compel the officers of a town to pay a bounty. 
 People ex rel. Tanderlin v. Martin, N. S. x. 411. 
 
 27. Will not lie where a statute has provided an adequate remedy at law. 
 State ex rel. Wheeler v. McAuliff, N. S. x. 605. 
 
 28. To compel the Commissioner of the General Land Office or the Secre- 
 tary of the Interior to issue a patent, cannot be sustained. Id. 
 
 29. Will only be awarded where a clear right is shown to have the thing 
 done. People ex rel. McCagg v. Chicago, N. S. ix. 642. 
 
 30. Peremptory writ may issue in first instance. People v. Contracting 
 Board, N. S. iv. 188. 
 
 31. Does not lie from a state court to the governor to compel the perform- 
 ance of an official duty, even of merely ministerial nature, where such duty 
 is enjoined on him by the constitution, or where, though imposed by statute, 
 it is of such nature that he alone could perform it. Mauran v. Smith, N. S. 
 V. 630. 
 
 32. Whether it lies to enforce a statutory duty which might as well have 
 been devolved upon another officer, not decided. Id. 
 
 33. It is immaterial whether the duty be of a political nature or one per- 
 taining to the governor in his capacity as commander-in-chief of the military 
 forces. Id. 
 
 34. Mandamus to City Councils to levy tax. Oraham v. City of MaysviUe, 
 0. S. vi. 589. 
 
 II. DiSCBETIONART WITH THE COUKT. 
 
 35. Granting or refusing is discretionary. People v. Oroton Aqueduct Board, 
 N. S. vii. 609. 
 
 36. Matter of discretion. Party asking must have a right not only to a 
 decision but to the thing claimed. People v. Booth, N. S. vii. 315. 
 
 37. Will not be awarded where the parties have commenced other proceed- 
 ings to obtain the adjudication of a question, unless the court think that 
 more complete justice can be done. People ex rel. v. Salomon, N. S. ix. 717. 
 
 38. Is not a writ of right, but is discretionary with the court. The People 
 ex rel. Keyes v. The Auditor of Public Accounts of Illinois, N. S. iii. 332. 
 
 39. The court will not entertain jurisdiction where substantial interests 
 are not involved. Id. 
 
 III. Op the Petition Retdkn and Pleadings. 
 
 40. A demurrer to a return to an alternative writ of mandamus, setting up 
 facts, some of which are provable by the legislative journals only, and some 
 by parol evidence, admits not only the facts resting on record evidence, but 
 ail facts necessarily existing outside of, and^never appearing upon the jour- 
 nals, so far as they would be proper evidence for any purpose. The People 
 y. Auditor of Public Accounts, N. S. iii. 332. 
 
 41. A return to a mandamus should be sufficiently clear and full to enable 
 the court to judge if the facts set forth, are all that are necessary. Benbow 
 V. Iowa City, N. S. viii. 252. 
 
 42. What return thereto must set forth. Society v. Commonwealth, N. S. vi. 
 634. 
 
 43. Sufficiency of return, that relator had been " tried and convicted of 
 the charges." Id. 
 
 44. In proceedings by mandamus, it is not indispensable that the petition 
 should state that the relator is without any other adequate and sufficient 
 remedy. If that appear to the court to be the fact, the alternative writ will 
 not be quashed. People ex rel. Fuller v. Billiard et al., N. S. ii. 274. 
 
 IV. Stating. 
 
 45. In a case involving public interests, the issue of a peremptory writ 
 will be stayed on suggestion of collusion. State v. Avery, N. S. iii. 376. 
 
MANDAMUS. 633 
 
 46. Against an officer of the goTernment abates on his death or retirement 
 from office, his successor cannot be made a party. United States v. Boutwell, 
 N. S. xiii. 330. 
 
 v. To COEPOKATIONS AND HEREIN OF POBLIO COKPOEATIONS. 
 
 47. Mandamus is the proper and appropriate writ to compel a municipal 
 corporation to make proTision for the payment of interest due upon bonds 
 issued by the same, in payment of its subscription to the stock of a railroad 
 company, by the assessment and collection of the necessary taxes. Common- 
 wealth ex rel. Samilton v. The Select and Common Councils of the City of Pitts- 
 burg, 0. S. Tiii. 286. 
 
 48. Mandamus is the proper remedy, where there is a clear legal right in 
 the relators, a corresponding duty in the defendant, and a want of any other 
 adequate and specific remedy. Id. 
 
 49. A writ of mandamus ordering the levy and collection of a tax is an 
 appropriate and proper process to enforce judgments against public corpo- 
 rations in the State of Iowa. U. S. v. Treasurer Muscatine Co., N. S. ix. 415. 
 
 50. The Circuit Court of the United States for the District of Iowa has the 
 power, and it is its duty, if necessary, to issue writs of mandamus for this 
 purpose. Id. 
 
 51. These writs, when thus issued to levy and collect taxes, are in the 
 nature of writs of fieri facias, and the State courts have no power or right to 
 interfere with their execution. Id. 
 
 52. Where writs of mandamus directed to the county treasurer, ordering 
 the collection of a tax, are disobeyed, thwarted, or evaded, the United States 
 Court issuing the writ of mandamus may, when necessary, appoint its mar- 
 shal to execute the same and collect the taxes. Id. 
 
 53. Under what circumstances this power will be exercised, discussed by 
 Dillon, J. Id. 
 
 54. Membership of a club which is purely literary, or social, or scientific, 
 and does not own property, cannot be considered a right of property ; nor is 
 the right of meeting the other members a vested right, of which courts can 
 take cognizance. Mandamus is not the proper form of remedy for a member 
 of such a club who is expelled. Waring v. Medical Society, N. S. viii. 533. 
 
 55. Appropriate remedy to compel admission to membership of medical 
 society. People v. Medical Soc, N. S. iv. 575. 
 
 VI. To Ministerial Offiobes. 
 
 56. A mandamus cannot issue to compel the school directors to erect a, 
 school house, they having been vested by the Act of Assembly with discre- 
 tionary power. In re Manheim Township, 0. S. iv. 163. 
 
 57. The general principle stated in Com. v. The Judges, 3 Binn, 273, stated 
 and reaffirmed. Id. 
 
 58. A citizen whose rights are affected by such statute has the right to 
 test its constitutionality by appropriate proceedings in the courts ; but a 
 public ministerial officer has no such privilege ; his official duty is to obey 
 the law. People v. Saloman, N. S. ix. 232. 
 
 59. A party who has, by his own illegal acts, put obedience to a manda- 
 mus out of his power, but neglects to return that fact in his answer to the 
 alternative writ, so that the court, in ignorance of it, issues a peremptory 
 writ, is liable to punishment for contempt in not obeying the latter writ. Id. 
 
 60. A judgment in mandamus against an officer who has gone out of office 
 is void. The Secretary v. McOarrahan, N. S. ix. 581. 
 
 61. It is settled that the writ of mandamus issues only where a ministerial 
 act is to be done, and there is no other specific remedy. It is granted only 
 at the discretion of the court to whom application is made. Tatham v. The 
 Wardens of Philadelphia, 0. S. v. 378. 
 
 62. By the Act of 1851, the Board of Wardens, on application of the owners 
 of lands on the Delaware, within the limits of Philadelphia, is bound to cause 
 to be defined, at the expense of the applicant, the line of low-water mark 
 bounding their jurisdiction ; nor has this duty been effected by the Consoli- 
 dation Act. Id. 
 
 VII. To Churches. 
 
 63. Under the voluntary system of church government in this country, 
 (except, it would seem, in cases of actual endowment,) a mandamus cannot 
 issue to compel the trustees or members of a particular church to admit a 
 
634 MANDAMUS— MAEITIME LAW. 
 
 minister to the exercise of his spiritual functions ; and this, though he may 
 have been duly appointed thereto by the superior ecclesiastical authority — 
 e. ff., by a Methodist Yearly Conference — especijilly if the right of consent is 
 reserved by oliarter or agreement to such trustees or members. Union 
 Church T. Saunders, 0. S. iv. 378. 
 
 VIII. To COTJKTS. 
 
 64. As respects judicial duties, the writ of mandamus merely commands 
 the court or officer to proceed, without directing in what manner the duty 
 shall be executed. The People ex rel. v. Baker, N. S. i. 379. 
 
 65. Mandamus from a Federal court cannot be restrained by an injunction 
 from a State court. Supervisors v. Durant, N. S. ix. 448. 
 
 66. When it will not be issued directing restoration of an attorney, removed 
 from rolls, without previous charge or process. Randall, Petitioner, N. S. 
 vi. 189. 
 
 67. la the proper remedy for compelling a court to receive and enter a 
 verdict. State of Kansas ex rel. Hunkers v. Watson, N. S. xi. 775. 
 
 MANSLAUGHTER. See Jcrisdiction. 
 
 1. That the law implies malice from a killing with a deadly weapon, and 
 imposes upon the accused the burden of showing the contrary, is a principle 
 recognized and fully established. State v. O'Donnell, 0. S. viii. 609. 
 
 2. The true rule in cases of mutual conflict stated and explained. Id. 
 8. What facts reduce a' crime from murder to manslaughter. Id. 
 
 4. The prisoner was a maker of fireworks, contrary to the stat. 9 and 10, 
 Will., eh. 7, sec. 1. During his absence, and through the negligence of his 
 servants, a fire broke out .among some combustibles in his possession, which 
 communicated with the fireworks, and caused a rocket to fly across the street 
 and set fire to a house opposite, in which a person was burnt to death. A 
 conviction for manslaughter was quashed. Reg. v. Bennett, 0. S. vii. 702. 
 
 5. It is error in the Circjjit Court to instruct the jury, in a prosecution for 
 murder; that "if the prisoner and the deceased engaged in a fight, neither 
 having a deadly weapon to be used in the conflict, but in the progress of the 
 combat, the prisoner's reason being temporarily dethroned, and .acting upon 
 the passion thus aroused, he slew the deceased, the killing would be but 
 manslaughter." From such language as this, the jury may infer that no 
 sudden heat, short of the dethronement of reason, will mitigate the killing 
 to manslaughter, and thus be misled. Haile v. The State, 0. S. i. 380. 
 
 MANUFACTURED ARTICLE. See Title to Mandfactueed Aeticle. 
 
 MANUFACTURING COMPANY. See Coepoeation. 
 
 MAP. 
 
 1. Sale of lots on street by metes and bounds, according to a plan. Warren 
 v. lilake, N. S. vii. 442. 
 
 2. Owner who sells lots by a map publicly exhibited dedicates the street to 
 the public. Pope v. Union, N. S. vii. 701. 
 
 MARINE INSURANCE. See Insdeance. 
 
 Injury by Stranding. See Corcoran v. Gurney, 0. S. ii. 62. 
 
 MARINE POLICY. See Ihsueanoe. 
 
 MARINER. 
 
 Will by, see Warren v. Harding, 0. S. i. 408. 
 
 MARITIME JURISDICTION. See Jueisdiotion. 
 
 MARITIME LAW. See Lien, Seamen's Wages. 
 
 1. Rule as to Contribution, see Conteibution. 
 
 2. It was decided in The Chancellor, 4 L. T. Rep., N. S. 627, that when a 
 foreign ship meets a British ship out of British waters, the rule of the sea 
 should govern their conduct, which is, that when two vessels are approach- 
 ing each other, nearly on the same course, and both have the wind free, 
 each vessel is bound to port her helm and run to starboard of the other : but 
 when one vessel is close hauled, the ship which has the wind free Is bound to 
 make way for the other. Dent v. Turpin, 0. S. ix. 703. 
 
 3. To entitle seamen to double wages, under the Act of Congress, July, 
 1790, chapter 29th, section 9, on account of being put on short allowance of 
 
MAEITIME LAW— MARK. 635 
 
 provisions, both the conditions mentioned in the act must concur ; the vessel 
 must have left her last port with a less amount of provisions than is required 
 by the act, and the crew must have actually been put on short allowance 
 during the voyage. Tltc John L. Dimmick, 0. S. ix. 224. 
 
 4. The statute is, in its nature, a penal law, and is not to be enlarged by 
 construction beyond the natural and obvious meaning of its terms. Id. 
 
 5. To bring a case within the statute, the short allowance must be during 
 the passage of the vessel, and before she arrived at her port of destination. Id. 
 
 6. When the crew is put on short allowance without necessity, in a case 
 not within the Act of Congress, there is a wrong in breach of contract, and 
 a remedy will be given by a Court of Admiralty, in the form of additional 
 wages. Id. 
 
 7. It is a well-understood term of contract, that the crew, during the period 
 of their service, shall be furnished with provisions by the owners, sufficient 
 in amount, and of suitable quality; and to refuse such a supply, without 
 necflesity, is as much a breach of the contract as to refuse payment of their 
 wages, though this obligation is not expressed in the written or printed con- 
 tract. Id. 
 
 8. When the ship was lying in the bay of Mobile four months, waiting for 
 cargo, and the usual supply of provisions from the ship's store were with- 
 held, the crew being required to furnish themselves, by taking oysters from 
 the oyster-beds, when the state of the weather permitted it to be done, and 
 the supply being insufficient in quantity, they were held to be entitled to two 
 months' additional wages. Id. 
 
 9. The daily allowance to seamen in the merchant service, ought to be 
 equivalent to the navy ration. Id. 
 
 10. The general rule of the maritime law is, that the ship is liable, in 
 specie, for all the obligations of the master, whether arising ex contractu or 
 ex delicto, resulting from acts done in the exercise and within the proper 
 scope of his authority as master. Id. 
 
 11. Abandonment of ship — What damage to ship will justify — Effect of 
 sale by master in foreign port. Winter v. Insurance Co., 0. S. ix. 304. 
 
 12. An actioufor a joint tort against two or more cannot, in the admiralty, 
 be united with a tort against one separately, if the objection be taken. 
 Roberts v. Skolfield, 0. S. viii. 156. 
 
 13. The general maritime law was adopted by the Constitution of the 
 United States, and no state can have a separate and distinct maritime law 
 by itself. Id. 
 
 14. This law governs the crews of the vessels of the United States, wher- 
 ever they go, whether in a port of the Union or a foreign port. Id. 
 
 1-5. When the Constitution adopts the admiralty and maritime jurisdiction, 
 it adopts also the law by which it is governed. Id. 
 
 16. The power of the United States to govern seamen may also be derived 
 from the commercial power. The power to regulate commerce includes that 
 of navigation. Id. 
 
 17. When a seaman engages in a commercial adventure, the laws of the 
 United States follow him until the voyage is completed, whether in a foreign 
 country, or the Union. Id. 
 
 18. The commerce of the country is a unity, and wherever it goes, it is 
 governed and protected by the laws of the United States. Id. 
 
 MARITIME LEGISLATION. 
 
 History of, as applied to the great lakes. American Transportation Co. v. 
 Moore, 0. S. vii. 16. 
 
 MARITIME LIENS. See Mechanic's Lien, X. 
 
 1. Subject discussed. 0. S. v. 129. 
 
 2. Is paramount to a domestic lien. See Lien, Admibaltt. 
 
 3. Material men and their liens, subject discussed. N. S. vii. 513. 
 
 4. A maritime lien does not exist upon a stationary structure like a bridge. 
 G. P. Co. V. R. J. Bridge, N. S. vii. 409. 
 
 MARITIME USAGE. See Delivery. 
 
 MARK. 
 
 Bills and notes signed by mark may be good, and if signature not denied, 
 it is held admitted under the rules of court. Willoughby v. MouUon, N. S. 
 vii. 251. 
 
636 MAEEIAGE— MAEEIED WOMAN'S ACT. 
 
 MAKRIAGE. See Husband and Wife. 
 
 1. Age of consent, 12 in females and 14 in males. Patton v. Herva/, 0. S. 
 iii. 58. 
 
 2. Of minors, solemnized contrary to statute making it penal without 
 parents' consent, does not void the marriage. Id. 
 
 3. Lex loci contractus. Lyon v. Knott, 0. S. ii. 604. 
 
 4. Statutes validating informal. See foot-note to Kellam v. Kellam. N. S. 1. 
 83. 
 
 5. Representations made by a friend of a man as to his fortune, which 
 induced a woman to marry him, will not render the party making them 
 liable, unless he knew their falsity. Coleman t. Rowland, 0. S. ii. 509. 
 
 6. A marriage between slaves ismade valid by the ratification of the par- 
 ties after they become free. Jones v. Jones, N. S. xii. 191. 
 
 7. Actions for breach of promise of marriage. Subject discussed, N. S. 
 xi. 65. 
 
 8. It is a rule of the common law that contracts between husband and 
 wife are void, and will not be enforced. Sweeney v. Damron, N. S. ix. 61. 
 
 9. Marriage where one party is under the age of consent. People v. Slack, 
 N. S. vi. 318. 
 
 10. Marriage is a civil contract not requiring any particular form of 
 solemnization. Commonwealth v. Stump, N. S. vii. 61. 
 
 11. A marriage will not be annulled for impotence. Anon, N. S. xiii. 56. 
 
 12. A marriage valid where celebrated is valid everywhere, and vieer versa. 
 Sutchins V. Kimmel, N. S. xiv. 257. 
 
 13. A marriage performed in jest, and not intended to be a contract of 
 marriage, will be declared void by a court of chancery. McOlurg v. Terry, 
 N. S. X. 279. 
 
 MARRIAGE SETTLEMENT. 
 
 1. An ante-nuptial contract between husband and wife, in respect to the 
 disposition of their separate estates, should be made in good faith. Kline v. 
 Kline, N. S. vii. 713. 
 
 2. Marriage settlement conveying property to which wife might become 
 entitled, does not pass after acquired property. Stdnherger v. Potter, N. S. vii. 
 762. 
 
 M.iRRIED WOMAN. See Husband and Wife, Moktoaoe. 
 
 1. A judgment bond given by a married woman for the purchase-money 
 of a lot of ground conveyed to her, though invalid, as a personal obligation, 
 will constitute a valid lien upon the property, Ramborgers, Admr. v. Ingraham, 
 N. S. i. 61. 
 
 2. Reversionary interest of, in personal property, subject to her own life- 
 interest to her separate use — she has no power to alien. Hanchett v. Briscoe, 
 0. S. vi. 61. 
 
 3. A judgment confessed by a husband in favor of his wife, without the 
 intervention of a trustee, though void at law, is valid in equity. In Penn- 
 sylvania the rule of equity is adopted, and therefore such a judgment, when 
 given bona fide, and for value, will be sustained. A conveyance executed, or 
 gift consummated by the husband to the wife, during coverture, is valid in 
 equity, and a judgment is in the nature of an executed contract. Sale of 
 Samuel Shade's Land, 0. S. viii. 754. 
 
 4. Semble; that a wife cannot sue her husband, either at law or in equity, 
 during coverture, or have an adverse execution .igainst him ; but his property 
 having been sold by other creditors, she will not be deprived of her lien, or 
 stripped of her security. Therefore, where a husband borrowed his wife's 
 money, to which he had no legal claim, and promised at the time of the loan- 
 to secure and repay it, and afterwards confessed a judgment directly to her 
 for the amount, it will be sustained in equity against the claims of creditors 
 holding junior judgments, and the husband's land having been sold on other 
 judgments, the money was awarded to the wife in discharge of her lien. Id. 
 
 MARRIED WOMAN'S ACT. 
 
 1. Leading article upon, 0. S. iii. 385. 
 
 2. A married woman in Pennsylvania is not authorized to enter into any 
 suretyship, or transfer her separate personal estate for the payment of her 
 
MAERIED WOMAN'S ACT. 637 
 
 husband's debts ; nor is the husband authorized to mortgage the wife's estate, 
 except in the mode prescribed by the Act, which must be strictly pursued. 
 Williatm, Executor v. Stoops, 0. S. iv. 158. 
 
 3. The two modes of construing the Married Woman's Act considered. Id. 
 
 4. The contracts of a feme covert, when necessary or conTenient to the proper 
 use and enjoyment of her separate estate by -virtue of the enabling statutes 
 (sees. 1, 2, and 8, R. S. Wis. 1858), are binding upon the estate at law. 
 ( Conway v. Smith, 13 Wis.) Todd v. Lee, N. S. i. 657. 
 
 5. All her other engagements stand as before, good only in equity. (The 
 case of Yale v. Dederer, 22 N. Y. 450, considered and disapproved ; s. c. 18 
 N. Y. 265, approved.) Id. 
 
 6. The change from an equitable to a legal estate, has not, with respect to 
 her general engagements, enlarged her powers or removed the disability of 
 coverture, but she remains as if still possessed of an estate in equity without 
 restriction as to the /us disponendi, capable of charging it with debts incurred 
 for her own benefit or the benefit of her estate, to its full extent, and such 
 charge may be enforced in a civil action under the Code of Procedure. Id. 
 
 7. The action should be in rem not in personam, for she is incapable of 
 charging hers&M personally either in equity or at law. Id. 
 
 8. Injunctions and receivers in such actions may be had to preserve the 
 property during the pendency of the suits, and to convert the property and 
 satisfy the debts, for want of other process, after judgment. Id. 
 
 9. 'ihe husband is a proper party, but no personal demand can be made 
 against him in such cases. At common law the personalty of the wife rests 
 absolutely in the husband, and although he may be liable for her debts upon 
 the principles of agency, yet, even under the Code of Procedure, to bind him 
 or his property a separate action at law must be brought. This common law 
 rule has no application in such cases in equity; and whether he is liable or 
 not is a question of fact for the jury. Id. 
 
 10. A married woman may give a judgment for the purchase-money of real 
 estate, but execution will be confined to the real estate purchased. Patterson 
 y. Robinson, 0. S. iii. 241. 
 
 11. A married woman living with her husband, having carried on business 
 of trade in her own name, and purchased goods upon credit, and also having 
 a running account for goods purchased of her husband, cannot be proceeded 
 against as garnishee in an attachment against her husband. Avery and 
 Moody V. Doane, 0. S. iii. 229. 
 
 12. The act of Wisconsin to provide for the protection of married women 
 in the enjoyment of their own properly, does not enable a married woman, 
 while living with her husband, to carry on trade to the exclusion of him or 
 his creditors, or to become his debtor, in the business of the trade. Id. 
 
 13. A marriage settlement incomplete, by reason of a want of trustees, is 
 only an agreement to make a settlement, and will not, at law, exempt the 
 annual crops of the wife's land from an execution against the husband. Bruce 
 T. Thompson, 0. S. iii. 237. 
 
 14. By the language of the Vermont Married Women's Act, the annual 
 product of the wife's land is not exempted from the husband's control, or 
 from his creditors. Id. 
 
 15. In an action for certain horses sold and delivered, it appeared that the 
 defendant's wife had bought the goods and given ber own note for them ; and 
 that she had previously and generally acted as his agent, and that he made 
 no objection to the purchase, but had used the horses as his own. Held, that 
 there was evidence to go to the jury of the husband's liability, notwith- 
 standing the Married Woman's Acts of New York. Oates y.Brower, 0. S. 
 ii. 283. 
 
 16. The statute of Mississippi of 1839, which secured to a married woman 
 certain property in her own right, is a limitation of the marital rights of the 
 husband as they existed at common law, but does not restrict such rights 
 beyond the express and positive language of the act, or by necessary impli- 
 cation therefrom. Lyon v. Knott, 0. S. ii. 604. 
 
 17. The future right of the husband to the property is a right incident to 
 the contract of marriage, as regulated by law ; the husband does not succeed 
 to the slaves of the wife held by her own statute, as an inheritor or dis- 
 tributee of her separate estate, but they vest in him under the law, and by 
 virtue of the contract in marriage. Id. 
 
638 MAESHAL— MASTER AND SEE Y ANT. 
 
 MARSHAL. See Sale, Admikaltt, Habeas Coepds, Indictment. 
 
 1. Court of merely concurrent jurisdiction cannot disturb possession by 
 U. S. Marshal. Buck v. Colbath, N. S. T. 566. 
 
 2. Sales of mortgaged premises are usually made in the Federal courts by 
 the marshal of the district where the decree was entered. Blossom v. R. R. 
 Co., N. S. V. 218. „ ^ ^ . , 
 
 3. When suit in state court against marshal of the U. S. for official acts 
 may be taken up on error. Buck v. Colbath, N. S. v. 566. 
 
 4. Not bound to surrender a prisoner upon demand of a state officer. Ex 
 parte Sifferd, 0. S. v. 659. 
 
 5. Marshal's sale of laud gives no warranty of title. Pucketl v. The U. S., 
 0. S. iv. 459. 
 
 MARSHALING ASSETS. 
 
 While a court of equity has undoubted authority to compel one creditor to 
 satisfy his debt out of a particular fund, it will not do it to the injury of such 
 creditor or other creditors. Morrison v. Kurtz, 0. S. iii. 637. 
 
 MARTIAL LAW. 
 
 Subject discussed. 0. S. ix. 498. 
 
 MARYLAND. 
 
 Constitution, art. 4, sec. 2; act of 1809, eh. 125, sec. 2; act of 1853, ch. 
 238 ; construction of. In re Walsh, 0. S. ii. 542. 
 
 MASSACHUSETTS. See Constitutional Law. 
 
 1. Questions . — Whether the Legislature of this Commonwealth can consti- 
 tutionally provide for the enrolment in the militia of any persons other than 
 those enumerated in the Act of Congress, approved May 8, 1792, entitled, 
 " An Act more effectually to provide for the national defence, by establishing 
 a uniform militia throughout the United States ? " Interrogatories pro- 
 pounded by order of the Governor and Council to the Supreme Judicial 
 Court. 0. S. viii. 167. 
 
 2. Whether the aforesaid Act of Congress, as to all matters therein pro- 
 vided for, and except as amended by subsequent acts, has such force in this 
 Commonwealth, independently of, or notwithstanding any state legislation, 
 that all officers under the state government, civil and military, are bound by 
 its provisions ? Id. 
 
 MASTER. See Stevedore. 
 
 MASTER AND SERVANT. See Nequgence. 
 I. Of the Contract of Employment, and herein what will Authorize Mas- 
 ter to Discharge Servant. 
 
 1. An artisan who has been engaged for a term to work in the art he prac- 
 tises, upon his representing himself to possess the requisite skill, may, upon 
 his proving to be incompetent, be discharged by his employer before the end 
 of the term for which he was so engaged. Harmer v. Cornelius, 0. S. vii. 511. 
 
 2. Where a person is received into a family as a child, and not as a servant, 
 as an object of charity, and not as a hireling, that the relation is never 
 changed by legal implication into a relation, giving a right to wages ; and 
 that right never arises as between those parties, except from an express con- 
 tract, or something equivalent thereto. Long v. Frey, 0. S. i. 119. 
 
 3. Grounds of dismissal, see Arding v. Lomax, 0. S. iii 701. 
 
 4. An agreement to pay an agent " $3000 in equal quarterly payments," 
 creates a hiring for a year. Kirk v. Hartman, N. S. x. 69. 
 
 5. One hired for no deiinite time, is a hiring at the will of both parties, and 
 the servant may be discharged without notice. Id. 
 
 6. Debt will lie on a contract for service for a determinate time and fixed 
 compensation, when the servant is dismissed before its expiration. Id. 
 
 7. Remedy of servant discharged before end of his engagement. Note to 
 Huntington v. Ogdenshurgh R. R. Co., N. S. vii. 147. 
 
 8. A servant is liable to his master, where damages have been recovered 
 against the latter for the servant's negligence or misconduct. Grand Trunk 
 Railroad v. Latham's Adm'r, N. S. xiv. 462. 
 
 9. The servant is liable for the costs and counsel fees in the suit against 
 
MASTEE AND SERVANT. 639 
 
 bis master for damages sustained in consequence of the servant's negligence 
 or misconduct. Orand Trunk Railroad v. Latham's Adm'r, N. S. xiv. 4ti'2. 
 
 10. A servant cannot recover from his employers for an injury resulting 
 from his own negligence, Lyon v. Detroit L. ^ L. M. Railroad Co., N. S. 
 
 , xiv. 708. 
 
 11. Nor where the injury was one of the risks of the employment. Id. 
 
 12. The rule whereby a servant is precluded from indemnity against injury 
 caused by the negligence of a fellow-servant, only extends to the ordinary em- 
 ployment of the servant. If the servant is ordered by a superior servant to do 
 a dangerous act, out of his ordinary course, whereby he suffers damage, the 
 master will be responsible. Mann v. Oriental Mill Co., N. S. xiv. 725. 
 
 13. An employee dismissed before his time expires is prima facie entitled to 
 recover for the whole time. King v. Steiren, N. S. iii. 310. 
 
 14. Under a contract for wages to continue one year, notwithstanding the 
 death of the employer, reasonable services are due to the latter's executors. 
 Burdett v. Yale, N. S. iii. 249. 
 
 II. What is a Day's Labor ? 
 
 15. In the absence of an express agreement, ten hours' work will be con- 
 sidered a day's labor. Brooks v. Cotton, N. S. viii. 570. 
 
 III. Of Rights or Servants, and herein of Servants Leavino before Time 
 
 OP Service has Expired. 
 
 16. An action is not maintainable by* the representative of a deceased 
 workman against his master, if the deceased's own negligence materially 
 contributed to the injury of which he died, even though the master be guilty 
 of personal negligence. Senior v. Ward, 0. S. vii. 568. 
 
 17. A person employed as the secretary of a private corporation, at a 
 fixed rate of compensation, cannot demand extra pay for services in that 
 capacity. Carr v. Chartiers Coal Co., 0. S. iv. 442. 
 
 18. Bight of action by servant for wages under an agreement, notwith- 
 standing the servant's inability to work by reason of sickness. Cuckson 
 V. Stones, 0. S. vii. 508. 
 
 19. A laborer who leaves his employer, before his term of service has ex- 
 pired, can recover only pro rata on the basis of the contract price. Palnote 
 V. Sanders, N. S. viii. 508. 
 
 20. See Laws of Menu. 0. S. ix. 717. 
 
 21. The conductor or driver of a car may strike a blow where by resist- 
 ance to proper authority it becomes necessary without being liable therefor. 
 Passenger R. R. Co. v. Donahue, N. S. xii. 404. 
 
 22. Liability of master for accidental injury to servant. Tarrant v. Webb, 
 0. S. V. 599. 
 
 IV. Liability of Master for Negligence of his Servant. 
 
 23. Railroad not responsible to employee for personal injury arising from 
 the negligence of switchman, if the company had used due care in his selec- 
 tion. Gillman v. R. R., N. S. v. 572. 
 
 24. Gratuitous bailee not liable for carelessness of his servant in lighting 
 his pipe. Woodman -7. Joiner, N. S. iv. 308. 
 
 2.5. Builders not liable for injury to a workman through negligence of the 
 foreman. Gallagher v. Riper, N. S. iv. 316. 
 
 26. The burden is on the servant to show negligence of the master where 
 an injury has occurred to him through a defect in an engine. R. R. Co. v. 
 Thomas, N. S. viii. 154. 
 
 21. The occupant of a second story is liable for the negligence of his ser- 
 vant in allowing a hydrant to flood the story below. Gass v. Callunry, N. S. 
 viii. 381. 
 
 28. Plaintiff proving negligence, the defendant cannot rebut it by proving 
 the general good character and skill of his servants. Hays v. Mitler, N. S. 
 xi. 370. 
 
 29. A master is liable for the negligence of his servants in the course of 
 their employment, without regard to their character for care and skill. Id. 
 
 30. Railroad liable for negligence of driver of street car in assisting pas- 
 senger to come aboard. Drew v. Sixth Avenue Railway Co., N. S. iii. 498. 
 
 31. A master is bound to exercise proper care and diligence in the selec- 
 tion of the agencies and instruments with which, or upon which, he employs 
 
640 MASTER AND SERVANT. 
 
 his servants ; and, if he fails to do so, he will be liable to the servant for any 
 injuries he may sustain therefrom. Russell T. Noyea v. John Smith and Wil- 
 liam R. Lee, 0. S. v. 616. 
 
 32. The declaration averred that the plaintiff was hired by the defendants 
 to have the charge of and conduct and run an engine, and that, by virtue of 
 said employment, it became the duty of defendants to furnish an engine that 
 was well constructed and safe, etc., but that they carelessly and wrongfully 
 furnished an insufficient engine; that the insufficiency was unknown to the 
 plaintiff, and " but for want of all proper care and diligence vf ould have been 
 known to the defendants ; " and that, while the plaintiff was in the careful 
 and prudent use of the said engine, it exploded on account of said insufii- 
 oiency, and injured the plaintiff, etc. Held, on demurrer, that the declara- 
 tion disclosed a sufficient cause of action. Id. 
 
 33. Railroad company defendant may show that the accident occurred from 
 the failure of the plaintiff's fellow-servant to obey the company's instruction. 
 Dwgin v. Munson, N. S. v. 60. 
 
 34. The master is liable for the negligent act of his servant, though the act 
 be done without an express order. Gilmartin v. Mayor, N. S. ix. 325. 
 
 35. A corporation will be held liable for injuries to one of its servants, 
 resulting from a risk of which such servant had no knowledge or information. 
 Spelman v. Fisher Iron Co., N. S. ix. 517. 
 
 36. If A. employs another to do a lawful act, and he in doing it commits a 
 public nuisance, A. is not responsible. Alitor if the act to be done necessarily 
 involves the committing of a public nuisance. Peachy v. Rowland, 0. S. ii. 62. 
 
 37. A pile driven by a contractor of a railroad company, whereby injury is 
 done to steamboat, the railroad company liable. Steamboat Co. v. R. R. Co., 
 0. S. v. 280. 
 
 38. Damages for servant's negligence. McCahill v. Kipp, 0. S. v. 313. 
 
 89. The liability of a master for the negligence of his servants extends 
 only to such acts or omissions as come within the scope of the servant's em- 
 ployment. Therefore, where the servant of a railway corporation, not having 
 authority from the corporation to employ other servants, engaged one G. to 
 assist him in moving a crate of crockery, and, through the negligence or 
 inefficiency of G., combined with the carelessness of the servant, the crate 
 was overturned, striking the plaintiff, whereby it was claimed he suffered a 
 severe injury. Held, that the corporation was not liable for the negligence 
 of G., nor for the fault of their servant in employing "G. to assist him, even 
 admitting G. to have been an unsuitable and improper person to engage for 
 that service. Jewell v. Grand Trunk Railroad, N. S. xiv. 358. 
 
 40. Principal is liable for his servant's incompetency or negligence, and 
 also for hia careless performance of his employment. Lannen v. Albany Gas 
 Co., N. S. X. 799. 
 
 41. Responsibility of master for servant's negligence. N. S. iv. 140. 
 
 42. Railroad not liable to person injured by falling off bridge from defect 
 not perceptible to competent engineer. Faulkner v. R. R. Co., N. S. vii. 610. 
 
 43. A master is liable to other servants in the same employment, if they 
 are injured by any neglect of duty on his part. O'Donnell v. Alleghany R. R., 
 N. S. viii. 757. 
 
 44. A master is liable for the results of the wilful conduct of his servant, 
 if within the scope of his authority. Passenger Railway Co. v. Donahue, N. S. 
 xii. 404. 
 
 45. The measure of damages for the loss of a minor child by negligence, 
 is the pecuniary value of the child's services while under age. Caldwell et ux 
 V. Brown, N. S. vi. 762. 
 
 46. Master ordinarily responsible for negligence or want of skill, with 
 which his employees do his business. R. R. Co. v. Baum, N. S. vi. 717. 
 
 V. Where an Employee is Injured bt NEGLiaESCE or another Employee. 
 
 47. The rule that the master is not responsible to one of his servants, for 
 an injury inflicted through the negligence of a fellow-servant, is not adopted, 
 to the full extent of the English decisions, in the state of Kentucky. Rail- 
 road Co. V. Collins, N. S. v. 266. 
 
 48. In regard to all servants of a company acting in a subordinate sphere, 
 the one class to another, and receiving injuries while in the performance of 
 duties under the command of a superior, whose authority they had no right 
 
MASTER AND SERVANT. 6M 
 
 to disobey or disregard, it is tlie same precisely as if the injury were inflicted 
 by tlie act of the company ; and if there is any want of care and slcill in the 
 superior, such as his position and duty reasonably demand, the company are 
 responsible. Railroad Co. v. Collins, N. S. v. 265. 
 
 49. In such oases there is no implied undertaking on the part of the ser- 
 vant to risk the consequences of the misconduct of the agent of the company 
 under whose authority he acted, and through whose negligence he received 
 the injury. Id. 
 
 50. Servants so situated, in distinct grades of superiority and subordina- 
 tion, are not to be considered as "fellow-servants," or "in the same ser- 
 vice ; " but rather in the light of strangers to each other's duties and respon- 
 sibilities; and the subordinate may recover of the company for any injury 
 sustained by reason of the ordinary neglect of the superior. Id. 
 
 51. But if the subordinate is himself guilty of any want of ordinary care, 
 whereby he is more exposed to the injury, he cannot recover, unless the 
 superior was guilty of wilful misconduct or'gross neglect, but for which he 
 might have avoided inflicting the injury, notwithstanding the negligence of 
 the other party. Id. 
 
 52. Where, therefore, an engineer, while upon his engine, ordered a com- 
 mon laborer to do some needed work under the engine, in fastening bolts or 
 screws belonging to it; and such workman, while lying upon his back in the 
 performance of the service, had both his legs cut off, by tlie movement of the 
 engine forward and backward, through the gross neglect or wilful miscon- 
 duct of such engineer, the company are responsible for the injury, notwith- 
 standing there miglit have been some want of ordinary care on the part of 
 the subordinate, contributing to some extent to the injury, but not necessita- 
 ting it, except through the gross misconduct of the superior. Id. 
 
 53. The rule exempting the company from responsibility for injuries in- 
 flicted upon their servants, through the want of ordinary care in other ser- 
 vants, does not extend beyond those who are strictly "fellow-servants" in 
 the same grade of employment, and where one is not subject to the order or 
 control of the others. Id. 
 
 54. Beyond this the company is responsible for the consequences of the 
 misconduct of superiors towards inferiors in its service, the same as towards 
 strangers. Id. 
 
 65. Master is not bound to warrant the competency of his servants ; and 
 in an action against him for injury done by one of his servants to another, 
 the question for the jury is not whether the servant was incompetent, but 
 whether tlie master did not exercise due care in employing him. Tarrant v. 
 Webb, 0. S. v., 306. 
 
 56. Principal not liable to one servant for the carelessness of another ser- 
 vant. Bonner v. R. R. Co., 0. S. iii. 637. 
 
 57. Master is responsible for injuries occasioned by the incompetency of a 
 fellow-servant, or defect in machinery. Cayzer v. Taylor, N. S. iii. 187. 
 
 58. One servant injured by another, see Raileoap. 
 
 59. Liability of master to servant on account of injuries occasioned by the 
 negligence of a fellow-servant, subject discussed, 0. S. vi. 449. 
 
 60. A servant cannot recover from his employer for injuries resulting 
 from the unskilfulness of his fellow-servants. Haskin Adm'r v. N. Y. C. 
 Railroad, N. S. xii. 663.. 
 
 61. Where a servant, under the orders and control of another superior 
 servant, is directed by the latter to do an act not in the usual course of his 
 duties, and, while so engaged, is injured by the negligence of the superior, 
 the master is liable to the servant injured. Frost v. U. Pacific R. R. Co., N. 
 S. xi. 101 . 
 
 62. The rule that a master is not liable to a servant for injury received 
 through the negligence of a fellow-servant, applies to the parents of a minor 
 killed by negligence of a fellow-servant. Caldwell and Wife v. Brown et al., 
 N. S. vi. 762. 
 
 ^ 63. Persons in the same general employment, carrying out a common 
 object under one master, are fellow-servants, although they may be employed 
 in different branches of the occupation. Id. 
 
 64. A servant can maintain an action for the injury against his employer, 
 resulting from employer's negligence. Holmes v. Clark, N. S. ii. 107. 
 41 
 
642 MASTER AND SERVANT. 
 
 65. Where seyferal persons are employed to attend to the same general 
 service, and one of them is injured from the carelessness of another, the em- 
 ployer is not responsible. Ryan v. The Cumberland Valley Railroad Company, 
 0. S. iii. 698. 
 
 66. Where a laborer on a railroad, engaged in making repairs on the track, 
 which are carried on partly by the use of a gravel train moved by locomotive 
 power, meets with an accident by the dumping of one of the cars, he has no 
 remedy against the railroad. Id. 
 
 67. The relation of master and servant is a relation of contract. Id. 
 
 68. A company guilty of negligence in the employment of an incompetent 
 servant, will be liable for injury resulting to a co-employee through such ser- 
 vant's fault. C. ^ A. Railroad Co. v. Sullivan's Adm'x, N. S. xiv. 58. 
 
 69. Habitual intemperance of a conductor, and knowledge thereof by his 
 employers, is sufficient to render them liable. Id. 
 
 70. Where a builder or contractor selects his own workmen and has the 
 immediate control over the work, and directs the manner in which it shall 
 be done, such builder or contractor is responsible for injuries resulting from 
 the careless and negligent manner in which the work is done. Brown v. 
 Werner, N. S. xiv. 354. 
 
 71. A railroad employee having knowledge of the unfitness of a cb-em- 
 ployee, and who does not give notice to his employer, takes the risk of 
 injury from such unfitness. Davis v. D. S; M. Railroad Co., N. S. x. 477. 
 
 72. A carpenter working for .a company is not to be esteemed as employed 
 in the same general service with the hands running the trains, so as to 
 relieve the company from responsibility for injury to him from their negli- 
 gence. O'Donnell v. A. R. R. Co., N. S. viii. 757. 
 
 73. Neglect of master to use safety-plug in his steam-boiler required by 
 statute, entitles his servant to recover for iiguries resulting from an explo- 
 sion. Cayier v. Taylor, N. S. iii. 187. 
 
 74. Master not liable for injury from negligence of fellow-servant, though 
 of a different grade and engaged in different kind of work, if both were at 
 work on different parts of same general purpose. Faulkner v. R. R. Co., N. S. 
 vii. 509. 
 
 VI. Liability op Master to Sekvant. 
 
 76. B., who was a carpenter, was employed by R. to go in a boat, upon a 
 submerged lot owned by him, and do certain work of his trade. While there 
 at work, a shot was fired from a house on an adjacent lot, which wounded 
 B. ; hence his action for damages. It appeared that R. knew his possession 
 of the lot was resisted and a resort to arms was imminent at any moment. 
 He did not inform B. of this fact, and the latter had no reason to believe he 
 was going into danger when employed to do the work. Held: R. was liable. 
 The risk B. legally agreed to take was such as was necessarily incident to 
 his employment. R. could have relieved himself of responsibility by inform- 
 ing B. of the facts of the danger. The concealment of facts, or the failure to 
 state them by employer to employee, which would tend to expose any hidden 
 and unusual danger to be encountered in the course of the employment, to a 
 degree beyond that which the employment fairly imports, renders the em- 
 ployer liable for injuries resulting therefrom to the employee. Baxter v. 
 Roberts, N. S. xiii. 41. 
 
 76. Evidence to show the extent of damage occasioned by a servant's 
 leaving his employer's service before the expiration of his term, is inadmis- 
 sible in an action for work and labor. Blodgelt v. Berlin Mills Co., N. S. xii. 
 661. 
 
 77. Breach of performance by the employee of the contract of hiring may 
 be shown by the employer in defence ^ro tanto to an action for wages. Id. 
 
 VII. Liability op Mastek ron Injury beoeived by Servant where Servant 
 
 KNEW OF THE BaNGER. 
 
 78. Where a servant, well knowing the default of his principal, as in pro- 
 viding defective machinery, voluntarily enters upon, or continues in employ- 
 ment, he assumes the risk, and, if injured, has no remedy against his em- 
 ployer. Devitt \. Pacific R. R. Co., N. S. xii. 104. 
 
 79. Where employer and employee have equal knowledge, and the latter 
 continues the service, each party takes the risk, unless the employer gives 
 special directions. Davis v. D. ^ M. R. R. Co., N. S. x. 477. 
 
MASTEE AND SERVANT. 643 
 
 80. Where an injury happens to a servant while in the actual use of an 
 instrument, engine, or machine, in the course of his employment, of the 
 nature of which he is as much aware of as his master, and the use of which 
 is, therefore, the proximate cause of the injury, he cannot, at all events, if 
 the evidence is consistent with his own negligence in the use of it being the 
 real cause, nor in case of his dying from the injury can his representatives, 
 under Lord Campbell's act, 9 & 10 Vict. u. 93, recover against his master, 
 there being no evidence that the injury arose through the personal negligence 
 of the master. Nor is it any evidence of such personal negligence of the 
 master that he has in use in his woi'ks an engine or machine less safe than 
 some other which is in general use. Dynen v. Leach, 0. S. v. 745. 
 
 81. Therefore, where a laborer was killed through the fall of a weight 
 which he was raising by means of an engine to which he attached it by 
 fastening on to it a clip, and the clip had slipped off it, it was held that there 
 was no case to go to the jury in an action by his representative against the 
 master, although it appeared that another and safer mode of raising the 
 weights was usual, and had been discarded by the orders of the defend- 
 ant. Id. 
 
 82. The defendant, a master-builder, had been engaged to repair a house, 
 employed one of his workmen, A., to erect the scaffolding for that purpose. 
 A. knew how to build scaffoldings. The materials which were supplied to 
 him by the defendant were in bad condition. The workman broke several 
 of the put-logs (the piece of wood between the wall and the upright poles), 
 but was ordered by the defendant not to break any more as they Would do 
 very well. The scaffolding having been erected by A. of the materials which 
 were furnished to him, an accident happened to another workman, B., in con- 
 sequence of the bad condition of the put-logs. Held, in an action by B. to 
 recover compensation for the injuries received ; that there was evidence to go 
 to the jury in support of the plaintiff's case, and that such evidence ought 
 to have been left to the jury. Roberts v. Smith and Another, 0. S. v. 750. 
 
 VIII. Liability of Owner of Premises for Negligence of Conikaotor. 
 
 83. The rule is now firmly established that, when the owner of lauds 
 undertakes to do a work, which, in the ordinary mode of doing it, is a 
 nuisance, he is liable for any injury which may result from it by third persons, 
 though the work is done by a contractor exercising an independent employ- 
 ment, and employing his own servants ; but when the work is not in itself a 
 nuisance, and the injury results from the negligence of such contractor or 
 Iris servants in the manner of executing it, the contractor alone is liable, un- 
 less the owner is in default in employing an unskilful or improper person as 
 the contractor. Cfcf v. The N. ^ N. Y. R. R., N. S. ix. 541. 
 
 84. The principle upon which the superior, who has contracted with another, 
 exercising an independent employment, for the doing of the work, is exempt 
 from liability for the negligence of the latter in the execution of it, applies 
 as between the contractor and his sub-contractor. Id. 
 
 IX. Power of Servant to Bind Master. 
 
 85. Warranty on sale of horse by servant without authority of master. 
 Brady v. Todd, 0. S. ix. 492. 
 
 86. The servant of a private person entrusted to sell and deliver a horse, 
 cannot bind his master by an unauthorized warranty. Id. 
 
 X. Action bt Parent for Loss of Service for Seduction of Employee of 
 
 DefendA'NT. 
 
 87. Seduction of one temporarily employed by defendant, the plaintiff, 
 (the father) could maintain action for the seduction. Griffiths v. Teetgen, 0. 
 8. iii. 702. 
 
 XI. Liability of Master for Fraud or Trespass of Servant. 
 
 88. For fraudulent act of teller of a bank. How far bank is liable. At- 
 lantic Bank v. Mechanics' Bank, 0. S. ix. 241. 
 
 89. Where an attorney's clerk had fraudulently simulated the court seal 
 upon a writ, the court set aside the writ and all proceedings thereon — and 
 ordered the attorney, though blameless personally, to pay the costs. Dunkley 
 V. Farris, 0. S. ii. 63. 
 
 90. But no action will lie against master for wilful and malicious trespass 
 of a servant. R, R. Co, v. Baum, N. S. vi. 717. 
 
644 MASTEE AND SERVANT— MECHANIC'S LIEN. 
 
 91. Unless the act was necessary to accomplish the purpose of his employ- 
 ment. R. R. Co. V. Baum, N. S. vi. 717. 
 
 92. Same rules apply to corporations. Id. 
 
 93. Liability of master for the servant's acts. Have v. Neiemareh, N. S. tI. 381, 
 
 MASTER IN EQUITY. 
 
 1. A master in equity, in whose name assets are invested, has no authority 
 to negotiate or transfer any of the securities therefor, which are in his pos- 
 session or under his control, or to change the investment, without a special 
 order of the court. Simons v. South - Western Bank, 0. S. ii. 546. 
 
 2. A master in equity is a mere depository, and not a technical trustee. Id. 
 
 MATERIAL-MEN AND THEIR LIENS. 
 
 1. Subject discussed, N. S. vii. 513. 
 
 2. Materials furnished on the credit of a building, are u suificient consid- 
 eration for the owner's subsequent promise to pay. Landis v. Royer, N. S. 
 viii. 694. 
 
 3. Repairs and alterations which do not change the exterior of a building 
 into a new structure, confer no lien. Miller v. Hershey, N. S. viii. 699. 
 
 4. Where lien arises under maritime law — effect of taking negotiable note 
 — cases cited and commented on. Harris v. The Schooner Kensington, 0. S. 
 viii. 144. 
 
 6. Liens for materials to cars and rolling stock of railroad. Coe t. R. R., 
 0. S. vi. 27. 
 
 6. A lien given by the general maritime law is a vested right, and the leg- 
 islature oif a state can pass no law to impair it. Asbrook v. The Oolden Oate, 
 0. S. V. 148. 
 
 MAXIMS. 
 
 1. In jure non remota causa, sed proxima spectatur, commentary upon, N. 
 S. xiii. 14. 
 
 2. Nullum tempis occurrit Regi, commentary upon, N. S. xiii. 465. 
 
 MAYSVILLE. See Municipal Subscription. 
 
 MEASURE OP DAMAGES. 
 
 1. As against railroads, see Damages. 
 
 2. Subject discussed, 0. S. iv. 318. 
 
 3. Ex contractu, leading article upon, 0. S. iii. 513. 
 
 4. As affected by malice in actions for slander, subject discussed, N. S. i. 
 171, 172. 
 
 5. Where A. had borrowed certain shares of B., under an agreement to 
 return them within a given time, but had failed so to do. Held, in an action 
 for not returning the shares, that the measure of damages was the value of 
 the shares on the day of the trial, and not on the day limited for their return. 
 Owen V. Routh, 0. S. ii. 701. 
 
 MECHANIC'S LIEN. See Mateeial Mek. 
 
 I. What is Requisite to Constitdte a Lien against a Building. 
 
 1. It is essential to a mechanic's lien for lumber, purchased to improve a 
 lot, that it was purchased for that purpose. Groskey v. Corey, N. S. ix. 386. 
 
 2. Is waived by acceptance of note. Qreen v. Fox, N. S. iii. 506. 
 
 3. Lien may exist against a light-boat building under contract for the 
 United States. Briggs v. A Light-Boat, N. S. iii. 566. 
 
 4. The lien of the mechanic relates to the time when the work commenced. 
 Kellenberger v. Boyer, N. S. xii. 663. 
 
 5. A mechanic's statutory lien for work done and material furnished in the 
 erection of a house is assignable. Rodgers v. Omaha Hotel Co., N. S. xiv. 246. 
 
 6. The difference between statutory liens and common-law liens, depending 
 on possession, discussed. Id, ' 
 
 II. What must be Stated in the Claim as Filed. 
 
 7. A statement of a balance is not sufficient compliance with the law re- 
 quiring a claimant of a mechanic's lien to "file a just and true account." 
 McWilliams v. Allen, N. S. ix. 642. 
 
 III. The Contract must be Ehtiee. 
 
 8. Under an entire contract, if there is no lien for the whole work and 
 materials, there is none for any part. Morrison v. Minot, N. S. iii. 64. 
 
MECHANIC'S LIEN. 645 
 
 IV. Of the Filing op the Claim, and herein of the Time when the Lien 
 
 ATTACHES AND WHAT WILL KeeP IT AlIVE. 
 
 9. A meolianic's lien was filed on the 8tli of September, 1845, and a sd.fa. 
 issued upon it on the 10th of December, in the same year ; the suit was not 
 further proceeded in till July 31st, 1850, after which there was a verdict for 
 plaintiff, on 20th October, 1850. Held, that the issuing of the sci. fa. within 
 the five years, kept alive the lien. Sweeney v. McGettogan, 0. S. i. 440. 
 
 10. Where a mechanic's lien was filed for materials furnished at different 
 dates within two years prior to the filing of the claim, it was held that in 
 the absence of a. special contract no recovery could be had on the scire facias 
 except for materials furnished within six months prior to the filing of the 
 lien. Philips v. Duncan, 0. S. iii. 304. 
 
 11. The commencement of a building under Mechanic's Lien Law, is first 
 labor done on the ground. Brooks v. Lester, N. S. xii. 259. 
 
 V. Of the Apportionment or the Claim. 
 
 12.. Apportioned Claims. — Where all the buildings were put up by the 
 owner at one time and on one lot, and the materials were furnished for them 
 all jointly, it was entirely proper to make them the subject of one appor- 
 tioned lien. Taylor v. Montgomery, 0. S. i. 440. 
 
 VI. Op the Extent op the Lien of an Anterior Mortgage. 
 
 13. Mechanic's lien as against mortgage, see Campbell ^ Pharo's Appeal, 
 0. S. vi. 752. 
 
 14. An anterior mortgage takes priority over a mechanic's lien to the 
 extent of the value of the property at the time the lien attached. Croskey v. 
 North- Western Manuf. Co., N. S. ix. 386. 
 
 VII. What constitutes a Building, and herein op the Claim foe a Pave- 
 
 ment. 
 
 15. Where the materials and labor furnished were in the equipping with 
 fixed machinery for the manufacture of paper, a building intended in its 
 erection as a paper mill, but which was in itself a complete and independent 
 structure, it was held that they could not be regarded as furnished for the 
 construction or reparation of a building, and that no lien attached to the 
 premises in favor of the party furnishing the same. Sose v. The Persse and 
 Brooks Paper Works, N. S. i. 314. 
 
 16. Where the -structure of a building is so completely changed, that, in 
 common parlance, it may be properly called a new building, or a re-build- 
 ing, it comes within the Mechanic's Lien Law. Armstrong v. Ware, 0. S. i. 635. 
 
 17. Identity of building — ^necessary description. Kennedy et al. v. House 
 et al., N. S. ii. 187. 
 
 18. Where Hhe laying of a pavement of a house is an express part of an 
 entire contract with the bricklayer, his lien will be in time if filed within 
 six months after the completion of the pavement, though the rest of the work 
 be done more than six months before. Otherwise, if the laying of the pave- 
 ment be done under a separate contract. Yearsley v. Flanigin, 0. S. ii. 447. 
 
 19. But even where the contract is entire, if the building is finished, and 
 the contract is treated as complete by the parties, and a considerable period 
 of time is suffered to pass before the pavement is laid and intervening rights 
 have attached, a lien would not be in time if not filed within six months. Id. 
 
 VIII. Op the Proceedings to Enforce the Lien. 
 
 20. The contract on which a mechanic's lien was filed, stipulated that 
 "the balance was to be paid after all the men that worked on the building 
 should have been paid." On the trial, the defendant produced one of the 
 workmen, who swore that he was still unpaid for a comparatively small 
 amount for which he had brought an action ; but no special plea was put in 
 to that effect. Held, that a verdict given for the plaintiffs for the full amount 
 of his claim ought to stand, but that execution for the amount alleged to be 
 due by the witness should be stayed till the suit brought by him was deter- 
 mined. Shapland y . Nash, 0. S. ii. 571. 
 
 21. Ou a sci. fa. on a mechanic's lien, a terra-tenant is a party to the suit, 
 and interested in it only by reason of his ownership of the land, and when 
 that relation ceases his connection with the suit and its result ceases, and he 
 is a competent witness against the plaintiff. Holden v.Winslow, 0. S. i. 123. 
 
 22. Where bricks are furnished for the erection of a house, under a contract 
 
646 MECHANIC'S LIEN— MENU, LAWS OF. 
 
 to furnish all that may be needed in its erection, the lien is in time if filed 
 within six months after the last bricks are furnished in pursuance of the 
 contract. BartUtt t. Kingan, 0. S. i. 123. 
 
 23. A proceeding by petition to enforce a mechanic's lien is a chancery 
 proceeding, and governed by the rules of chancery practice. Clarke v. Boyle, 
 N. S. ix. 718. 
 
 24. The owner of land who has sold subsequently to the contract for work 
 is not a necessary party in a suit to enforce a mechanic's lien for labor. Kel- 
 lenberger v. Boyer, N. S. xii. 663. 
 
 25. In suits to enforce a mechanic's lien the evidence must be preserved in 
 the record for the guidance of the superior courts. Croskey v. North-western 
 Manuf. Co., N. S. ix. 386. 
 
 26. If five years elapse between the issuing of a sci. fa. on a mechanic's 
 lien and the entry of judgment the lieu is gone. Hunter v. Lannitig et at, N. 
 S. xiv. 462. 
 
 27. A debt may survive when the lien is gone. Id. 
 
 28. Proceedings on a mechanic's lien being in rem the lien must appear by 
 the record. Id. 
 
 29. Owner cannot be prejudiced by continuing the debt against the con- 
 tractor. Id. 
 
 IX. Of the Lien for Repairs. 
 
 30. A landlord extended a lease by writing, in consideration of the tenant 
 making improvements "at his own cost," the building is not subject to a 
 mechanic's lieu for alterations, under the Acts of Assembly of Pennsylvania 
 of 1861 and 1865, authorizing liens for alterations, with the proviso, there 
 shall be no lien where the alteration was made by the lessee " without the 
 written consent of the owner." McClintock v. Gresswell, 199. 
 
 81. The consent intended by the acts is an absolute consent, consistent 
 with the right to do the work on the credit of the building. Id. 
 
 X. Of Mabitime. 
 
 82. A material-man furnishing supplies to a domestic vessel in a home 
 port has no lien by the general maritime law. Steamship Circassian, N. S. 
 xii. 291. 
 
 33. Such a lien may exist by the law of the state where the supplies are 
 furnished, but it can be enforced in rem only by the United States courts. Id. 
 
 34. Where such a lien exists by the local law, it may now, under admiralty 
 rule 12, as amended in 1872, be enforced by the United States courts by a 
 libel in rem. Id. 
 
 35. But that amended rule does not apply to cases where the supplies were 
 furnished before the amendmetit went into effect. Id. 
 
 36. History of Rule 12, and the decisions under it. Id. 
 
 37. Ship carpenters have a lien for repairs made to a domestic vessel which 
 may be enforced by a proceeding in rem. In re Kirkland, Chase & Co., N. S. 
 xii. 300. 
 
 38. The "Rules of Practice," of the Supreme Court in Admiralty proceed- 
 ings, are merely intended to regulate the remedy, and have no relation to 
 the question of jurisdiction. Id. 
 
 39. The amendment to the 12th Rule, providing that material-men fur- 
 nishing supplies or repairs may proceed against the ship and freight in rem, 
 is applicable to all suits instituted since May, 1872, for supplies or repairs, 
 no matter whether they were furnished before or since the adoption of the 
 amendment. Id. 
 
 MEDICAL EXPERTS. 
 
 Testimony of, to detect the presence of poison, 0. S. v. 34. 
 
 MEDICO-LEGAL DUTIES OF CORONERS. 
 Subject discussed, 0. S. vi. 385. 
 
 MENTAL ALIENATION. 
 
 1. Unsolved problems of the law as to, see Insanity. 
 
 2. Subject discussed, N. S. i. 592. 
 
 MENTAL UNSOUNDNESS AS AFFECTING TESTAMENTARY CAPACITY. 
 Subject discussed, N. S. iii. 885. 
 
 MENU, LAWS OF. 
 
 Leading article, and historical sketch of, 0. S. iz. 717. 
 
MEEGEE— MILITAEY SEEVICE. 647 
 
 MERGER. 
 
 1. Is a question of intention, actual or presumed. Polk t. Reynolds, N. S. 
 ix. 581. 
 
 2. Is not favored in equity, and is never allowed unless for special reasons 
 and to promote the intention of the party. Clos et al. v. Boppe, N. S. xii. 60. 
 
 3. Where the equities are subserved by keeping a-mortgage alive and no 
 injustice is wrought, it will not be extinguished. Id. 
 
 4. Where title to two adjoining closes unite, all subordinate rights and 
 easements are extinguished. Warren v. Blake, N. S. vii. 442. 
 
 5. When it takes place. Bascom v. Smith, N. S. vi. 124. 
 
 6. Will not take place in equity, against requirements of justice or inten- 
 tions of parties. Sheldon v. Edwards, N. S. vi. 381. 
 
 7. After a settlement and giving a note there is an agreement to pay more 
 on a certain contingency, the agreement is not merged. Smith v. Holland, 
 N. S. xi. 589. 
 
 8. An alley fenced in and owned by the contiguous lot owner is extin- 
 guished. Robinson v. Myers, N. S. xi. 196. 
 
 MICHIGAN. 
 
 In Michigan there are no tide-waters which come within the technical 
 meaning of the term "navigable," as understood in the common law. Lor- 
 man v. Benson, 0. S. viii. 219. 
 
 MIDDLE NAME OR LETTER. 
 
 Of a defendant, if stated, must be stated correctly. The State v. Hughes, 0. 
 S. i. 380. 
 
 MILITARY COMMANDERS. 
 
 Authority of, see Port v. The United States, 0. S. iv. 389. 
 
 MILITARY COMMISSION. 
 
 1. Authority of military commissions in a state not engaged in rebellion 
 nor invaded where federal courts open. In re Milligan, N. S. vi. 567. 
 
 2. The Supreme Court of the United States has no power to review by 
 certiorari the proceedings of a military commission. In re Vallandigham, 
 N. S. iv. 55. 
 
 MILITARY PURPOSES. 
 
 Land purchased for military purposes cannot be sold without special 
 authority from Congress ; otherwise as to land reserved out of the public 
 domain and then abandoned. The United States t. The B. R. Bridge Co. et al., 
 0. S. iii. 603. 
 
 MILITARY SERVICE. 
 
 1. Under the Reconstruction Acts of Congress, appointments to civil offices 
 by the general commanding were by virtue of the Acts, and conferred title 
 to the olfices only while they were in force. Stone v. Wetmore, N. S. xi. 398. 
 
 2. When General Terry removed Wetmore, and appointed Stone to the 
 office of ordinary, though he was commissioned by the Governor, he had no 
 such right to the office as courts could recognize. Id. 
 
 3. Substitute deserting cannot recover amount contracted for with princi- 
 pal, although latter has been relieved from service. Oaugler v. Price's Adm'r, 
 N. S. v. 59. 
 
 4. Act of Congress, March 3d, 1860, not intended to prevent discharge 
 from, on habeas corpus. People v. Gaul, N. S. v. 380. 
 
 5. Indictment for soliciting person to enlist out of state. Comm. v. Jacobs, 
 N. S. V. 189. 
 
 6. Recruiting without authority under stat. 1863, ch. 91, sect. 1. Comm. v. 
 White, N; S. v. 59. 
 
 7. Congress has power to prohibit state judges from interfering with en- 
 listments by habeas corpus, and the acts of 1862 and 1864 have assumed ex- 
 clusive jurisdiction on this subject. Matter of 0' Conner, N. S. vii. 60. 
 
 8. Enlistment and desertion maybe proved otherwise than by record — 
 custom of substitute brokers — town quota. Lebanon v. Heath, N. S. vii. 315. 
 
 9. Money paid to broker for substitute, who proved to be a deserter, may 
 be recovered in action for money had. Id. 
 
 10. The authority to arrest a person in the military service of the govern- 
 
648 MILITAKY SEEVICE— MINES. 
 
 ment as a deserter, does not authorize the seizing and carrying away the 
 private property of the person arrested. Clark v. Oumins, N. S. ix. 124. 
 
 11. The Act of June 20th, 1864, increasing the pay of private soldiers in 
 the army, cannot be construed as having the effect of increasing the allow- 
 ance to officers for servants' pay. United States v. Gilmore, N. S. ix. 198. 
 
 12. Every citizen is bound to take up arms in defence of nis government, 
 if necessary ; and the selection of a class only, of a certain age, is arbitrary, 
 and based solely upon considerations of expediency. Booth v. Woodbury, N. 
 S. V. 202. 
 
 13. Although the state, as such, is under no obligation to aid the general 
 government in raising an army for national defence, yet the general good of 
 the people of the state is involved in the maintenance of the general govern- 
 ment, and the legislature may properly act for the promotion of this general 
 good. Id. 
 
 14. In the absence of authority conferred, a town has no power to appro- 
 priate money for gratuities to men drafted for the military service of the 
 United States. Booth v. Woodbury, N. S. v. 202. 
 
 15. But the legislature has power to authorize a town to confirm such 
 action by another vote on the subject; and such confirmatory action of the 
 town will be valid. And see as to limitations of power of legislature. Note 
 to Id. 
 
 16. Good answer to recognizance that defendant was in military service at 
 day of appearance. People v. Cushney, N. S. v. 382. 
 
 17. Town voting to pay bounty to those who should enlist and be credited 
 to its quota bound to pay those enlisted prior thereto, but mustered in and 
 credited to quota subsequently. Johnson v. Kewfane, N. S. vii. 635. 
 
 18. By R. S., ch. 74, sect. 18, "a soldier in actual service, or a mariner at 
 sea, may dispose of his personal estate and wages'," as he might have done 
 under the common law. Leathers v. Greenacre, N. S. vi. 633, 091. 
 
 19. A will made by a soldier without usual statute formalities, while in 
 barracks, or at a military station in a loyal state, not exposed to the enemy, 
 and before moving under orders against the foe, is not the will of a "soldier 
 in actual service," and not entitled to probate as such. Id. 
 
 20. Otherwise, if he had marched into the enemy's country, and was act- 
 ing with soldiers confronted by the enemy, though in winter quarters, and 
 not upon any present movement of the troops. Id. 
 
 MILITIA. 
 
 Act for the enrollment of militia in Massachusetts, constitutional questions 
 with regard to. 0. S. viii. 167. 
 
 MILL-DAM. 
 
 1. Liability of sheriff's vendee of interest in mill-dam for repairs, under 
 agreement between former parties. Campbell v. Sand, N. S. v. 181. 
 
 2. Use of dam raises implied promise to pay for repairs. Id. 
 
 3. Senible. — May be tenancy in common of, under Act of 1803. Campbell 
 V. Band, N. S. v. 181. 
 
 MILWAUKEE. See Constitutional Law. 
 
 MINES. 
 
 1. Working those of a neighbor — mode of directing an account — onus 
 probandi. Dean v. Thwaite, 0. S. v. 564. 
 
 2. In this case the defendant had, by underground working, taken the 
 coal of his neighbor. Held, that he could be compelled to account only for 
 that taken within six years, &c. Id. 
 
 3. In California right to mine for gold in the public lands. Tartar v. Min- 
 ing Co., 0. S. V. 188. 
 
 4. A mining right, nnderthe Mexican ordinances, is a title within the Act 
 of 1851 ; and the Board of Land Commissioners had jurisdiction of such a 
 claim. United States v. Oastillero, N. S. iii. 62. 
 
 5. The ordinances of the King of Spain, made in 1783, prescribe the mode 
 of acquiring title to mines, and were in force in Mexico at the date of the 
 conquest of California. Id. 
 
 6. Covenants to pay rent for coal taken out, and to take out certain quan- 
 tity. Separate covenants as to contiguous mines. Powell v. Burroughs, N. S. 
 vii. 815. 
 
MINES— MISTAKE. 649 
 
 7. Damages for breach of such covenant. Uncertainty of extent of injury 
 a criterion in distinguishing between penalty and liquidated damages. Pow- 
 eil V. Burroughs, N. S. yii. 315. 
 
 8. In an action for wilfully injuring a mine, the measure of damages is 
 the actual injury caused by delay. McKnight v. Rateliff, N. S. iii. 311. 
 
 9. Licensee of mineral rights covenants to pay for damages to lands, this 
 covenant binds his assignees. Norval v. Pascoe. N. S. iv. 310. 
 
 10. The rights of the owner of the surface and the owner of mines do not dif- 
 fer from those of owners of adjacent closes. B. M. Co. v. Harrison, N. S. xiii. 592. 
 
 MINISTER PLENIPOTENTIARY. 
 
 Of a foreign state — privilege of. Taylor v. Best, 0. S. ii. 550. 
 
 MINNESOTA. 
 
 Concerning, salaries of the organic officers of that territory, and claims 
 against United States and Acts of Congress prohibiting extra compensation 
 to United States officers. See U. S. v. Charles K. Smith, 0. S. v. 268. 
 
 MISDEMEANOR. 
 
 Procuring indecent prints with intent to sell. A count in an indictment 
 charged defendant with having possession of indecent prints, with intent 
 afterwards to sell them, is bad; but a count charging defendant with procur- 
 ing indecent prints, with intent to sell, is good, as the procuring is an act 
 done. Ueg. v. Dugdale, 0. S. i. 374. 
 
 MISJOINDER. 
 
 1. When two or more plaintiffs unite in bringing a. joint action, and the 
 facts stated do not show a joint cause of action in them, a demurrer will lie 
 upon the ground that the complaint does not state facts sufficient to consti- 
 tute a cause of action. Mann and Wife v. Marsh, N. S. i. 379. 
 
 2. In an action on a contract made between two married women after 
 coverture, the husband alone must sue and be sued; the use of the wife's 
 name is a misjoinder. Williams and Wife -^.Coward and Wife, 0. S. vi. 315. 
 
 3. Misjoinder of wife, effect of. See Williams v. Coward, 0. S. ii. 510. 
 
 4. Misjoinder of counts in action for damages for injuries to wife. Fuller 
 and Wife v. R. R. Co., 0. S. i. 567. 
 
 6. A father who sues in assumpsit to recover for the services of a minor 
 son cannot, after discontinuing such suit, bring an action on the case for 
 enticing away and harboring the son. The suit in contract is a waiver of 
 the tort. Thompson v. Howard, N. S. xiv. 590. 
 
 6. After electing his remedy, he must abide by it. Id. 
 
 7. Declaration containing cotnmon money counts cannot be amended by 
 adding special count upon a lease for damages for not carrying on farm 
 properly. O'Burt v. Kinne, 0. S. vii. 250. 
 
 MISNOMER. 
 
 1. If a person is well known by the name on the indictment, the indictment 
 is good. State v. Dresser, N. S. vii. 445. 
 
 2. The middle name of a defendant, if stated in an indictment, either in 
 full or by the initial letter, must be correctly stated. The State v. Hughes, 
 0. S. i. 380. 
 
 3. Misnomer of one of the partners is unimportant, if the name of the firm 
 is correct. Kushton v. Rowe, N. S. x. 344. 
 
 MISREPRESENTATIONS. 
 
 Party liable for not speaking truthfully as to solvency of another, though 
 he might have declined to speak at all. Viele v. Goss, N. S. vii. 380. 
 
 MISSOURI. 
 
 The Missouri Supreme Judgeship. — Conflict between executive and judici- 
 ary — powers of constitutional convention. — Quo Warranto, subject discussed. 
 N. S. iv. 705. 
 
 MISTAKE. 
 
 1. Title of person buying premises^ sold under a mortgage, which are in- 
 correctly described. Waldron v. Letson, N. S. vi. 571. 
 
 2. Mortgage could have been reformed before foreclosure, but not to 
 prejudice of the purchaser thereunder. Id. 
 
650 MISTAKE— MOETGAGE. 
 
 3. Trover will not lie to recover the value of coal dug by the owner of 
 laud through a mistake of boundaries. Forsyth v. WelU, N.' S. i. 225. 
 
 4. If a party is misled into making a contract under the idea that he is dis- 
 charging a legal liability it will be set aside. Lawton ■v. Campion, 0. S. iii. 124. 
 
 5. Interest on purchase-money. — Where a grantor, by mistake, included 
 in his deed ten acres, which had been sold many years before to another, 
 and which were in possession of his grantee at the time of the contract, the 
 grantee cannot demand a deduction from tlie consideration-money, by reason 
 of such mistake, especially where it appears that the party complaining gets 
 thirty-two acres more thau was estimated in the contract. Shearer v. Gilty, 
 0. S. i. 249. 
 
 6. To enable a court of equity, upon the ground of mistake, to reform a 
 written contract, the mistake must be proved to be the mistake of both parties, 
 so that, by correcting the writing as requested, the court will make it express 
 the contract designed to be entered into by both. A court of equity may, 
 however, rescind and cancel a contract upon the ground of a mistake of facts, 
 material to the contract of one party only; but where there has been no 
 fraud or surprise to put the applicant for such relief off his guard, it must 
 appear that the mistake was not the consequence of his own want of recollec- 
 tion, from inattention or of his own carelessness ; and that by granting him 
 the relief he asks, no injustice, and especially from the applicant's neglect to 
 apprise him of the mistake, will be done to the other party to the contract. 
 Diman v. The Providence, Warren ^ Bristol Railroad Company, 0. S. viii. 104. 
 
 7. Hence a subscriber to the stock of a railroad company, chartered, but 
 waiting for subscriptions in order to organize under its charter, can have no 
 relief in a court of equity on the ground that when intending merely to 
 renew an old subscription to the stock, which had fallen through, he, by 
 some unaccountable mistake, subscribed for double the amount, such sub- 
 scriber ascertaining his mistake immediately after his subscription, and suf- 
 fering the company to organize and act upon the faith of his subscription, 
 during several months, without notice of his alleged mistake. Id. 
 
 MISUSER. 
 
 Of Act of Incorporation, advantage cannot be taken in a collateral action. 
 R. R. Co. V. .8. R. Co., 0. S. ii. 303. 
 
 MOB. 
 
 Under the Act of Assembly, making the county liable for all property de- 
 stroyed or injured by riots, if the sheriff be warned of the approaching 
 danger, and fail to take proper legal means to prevent it, he is not entitled 
 to compensation for hiring military companies to aid him in his duty. Curtis 
 v. Alleghany County, 0. S. i. 123. 
 
 MONEY. 
 
 1. A contract made for the payment of money in a foreign country is pay- 
 able in the lawful money of that country. Comstock v. Smith, N. S. x. 600. 
 
 2. Where a gold coin is deposited as security and not returned, damages 
 must be measured by the value of gold as money. Frothingham v. Morse, N. S. 
 V. 698. 
 
 3. A contract for a certain number of "dollars;" though to be paid in gold, is 
 not a contract for a certain amount of gold as bullion, but as money. Buch- 
 egger v. Schultz, N. S. v. 95. 
 
 4. The measure of damages for non-performance of contract is the number 
 of legal dollars. Id. 
 
 5. Currency means bank-bills, etc., Which pass as a circulating medium. 
 Osgood V. McConnell, N. S. iv. 439. 
 
 MORRIS CANAL. 
 
 1. Is a public highway, though subject to tolls and regulations of the com- 
 pany. Barnet v. Johnson, N. S. vi. 569. 
 
 2. Rights of owners of land adjacent the Morris Canal. Id. 
 
 3. Company or its grantee, will be restrained from interfering there- 
 with. Id. 
 
 MORTGAGE. See Assignment, Ihteezbt, Pledge. 
 
MOETGAGE. 651 
 
 I. Geneeally. 
 
 1. Parol evidence to show that property not answering to description in 
 mortgage was intended to be included, inadmissible. Hutten v. Arnelt, N. S. 
 ix. 775. 
 
 2. The mere fact of a tenant being mortgagee after condition broken does 
 not absolve him from payment of rent. Johnson v. Muzzy, N. S. ix. 580. 
 
 3. Coupon is part of the mortgage debt and holder on foreclosure is en- 
 titled to share pro rata. Miller v. R. R. Co., N. S. vii. 762. 
 
 4. Subsequent ratification by grantee of deed, will not cut out an interven- 
 ing mortgage for value. Parmlee v. Simpson, N. S. vii. 60, 
 
 5. The husband and wife cannot enter into a mortgage of her statutory 
 separate estate to pay husband's debts. Sibb v. Pope, N. S. viii. 490. 
 
 6. The holder of a mortgage, given on representations that turned out to 
 be false, will notwithstanding be entitled to recover on it, on the ground 
 that there is a distinction recognized by the law between representations of 
 existing facts, and a representation of facts yet to come into existence. Sawyer 
 V. Prickett and Wife, N. S. xiii. 711. 
 
 7. Coupon detached from bond is still lien under the mortgage. Miller et 
 al. v. R. R. Co., N. S. vii. 762. 
 
 8. Coupon is part of mortgage debt. Id. 
 
 9. In Illinois, an attachment on personal property takes precedence of an 
 unrecorded mortgage. Green v. Van Buskirk, N. S. viii. 246. 
 
 10. Mortgage of Homestead, see subject discussed and cases cited, N. S. 
 i. 707. 
 
 11. In Michigan the legal rate of interest is fixed at ten per cent., and a 
 higher rate of interest is not recoverable, though agreed to be paid. Id. 
 
 12. Suit was brought on the mortgage, and the court held, that the plain- 
 tiff, a citizen of New York, was entitled to a judgment on the mortgage, 
 with ten per cent, interest, the legal rate of interest in Michigan. Fitch v. 
 Remer, 0. S. viii. 654. 
 
 13. A mortgagee of land in Illinois could not sue out his mortgage while 
 the mortgagor was a citizen of Louisiana, which was in insurrection. The 
 Peterhoff, N. S. vii. 62. 
 
 14. As to bankruptcy of mortgagee in a suit to foreclose mortgage, not 
 necessary to make assignee in bankruptcy a party. Cleveland v. Boerum, 0. 
 S. vii. 144. 
 
 15. The purchase of the fee, at a foreclosure sale, by the mortgagee, does not 
 necessarily merge or extinguish his mortgage. Parker v. Child, N. S. xiv. 323. 
 
 16. Eailroad cannot mortgage its franchise without further authority than 
 act of incorporation. Commth. v. Smith, N. S. v. 574. 
 
 17. Second mortgage cannot maintain bill to cancel first mortgage. Id. 
 
 18. When subsequent mortgage 'b&xx^i'bj lis pendens. Stern v. 0' Connell, 
 N. S. vi. 2-52. 
 
 19. Kule for ascertaining amount due on mortgages held by building asso- 
 ciation where the association is prematurely dissolved. Windsor v. Bandel, 
 N. S. xiv. 250. 
 
 20. If a bank takes a mortgage security from a customer, the relation of 
 banker and customer ceases as to that sum. Mosse v. Salt, N. S. iii. 439. 
 
 21. An act interposing obstacles to the enforcement of mortgages is void. 
 Oatman v. Bond, N. S. iii. 377. 
 
 22. Possession of premises by mortgagor is not adverse to mortgagee so as 
 to ripen into a title superior to the latter's. Allen v. Eoerly, N. S. xiv. 58. 
 
 23. Where lapse of time is not pleaded in bar, but relied on as evidence of 
 payment, it may be rebutted by showing the debt is not paid. Id. 
 
 24. The fact of payment must be shown where aflSrmative relief is asked ; 
 it will not be granted on the presumption arising from lapse of time. Id. 
 
 25. After condition broken the legal title is in mortgagee. Id. 
 
 26. The provision of the Maryland Code requiring an affidavit that the 
 consideration of a mortgage is true and bon& fide applies to technical mort- 
 gages only, not to deeds of trust. Carson's Admr's v. Phelps, N. S. xiv. 100. 
 
 27. Rights of party purchasing equity of redemption of land previously 
 insured by owner for the benefit of mortgagee, after loss and payment to latter. 
 Graves v. Insurance Co., N. S. v. 511. 
 
 28. A sale of mortgaged premises in all other respects unobjectionable, 
 will not be set aside for inadequacy of price. Horsey v. Sough, N. S. xiii. 261. 
 
652 MOETGAGE. 
 
 II. What win be Dbemei> a Moktgage. 
 
 29. A deed absolute on its face if meant only for security is a mortgage. 
 McBurney -v-Wellman, N. S. iv. 382. 
 
 30. The Statute of Frauds will not prevent the party aggrieved from show- 
 ing the true nature of the transaction. Id. 
 
 31. The oath of the grantor is not sufficient to change a deed absolute on 
 its face into a mortgage. Freytag v. Holland, N. S. xii. 193. 
 
 32. Where the grantee admits that he required an absolute deed as security 
 for a debt, without any recital to show what the debt was, the burden of 
 proof is on the grantee to show that it was greater than the consideration 
 mentioned in the deed. Id. 
 
 33. The grantee must reconvey on payment of his debt, and if the rents 
 and profits exceed the amount must repay the excess. Id. 
 
 34. The date of a mortgage is the day of its delivery. Sussell v. Carr, N. 
 S. viii. 314. 
 
 3-5. The law will not note fractions of a day except to prevent injustice. Id. 
 
 36. In equity a conveyance, whatever form it may assume, will be treated 
 as a mortgage, whenever it appears to have been taken as a security for 
 an existing debt, or a contemporaneous loan. Hinckley v. Wkeelwright, N. S. 
 viii. 590. 
 
 37. But on the other hand, parties capable of acting may make conditional 
 contracts for sale of their property, and a vendor may make an absolute con- 
 veyance, subject to an agreement for a reconveyance, upon the repayment of 
 the purchase-money, on or before a fixed day. Id. 
 
 38. Nor does the fact that parties stand in the relation of mortgagor and 
 mortgagee prevent their dealing with each other as vendor and purchaser of 
 the equity of redemption, if the mortgagee does not make use of his encum- 
 brance to influence the mortgagor to part with his property at less than its 
 value. Id. ;_ 
 
 39. The intention of the parties is, in such cases, what the courts seek to 
 discover and enforce. Id. 
 
 40. As between grantor and grantee, where it appears that a conditional 
 Bale was a mere cloak to an irredeemable mortgage, equity will let in the 
 grantor to redeem ; but it is a matter of grave doubt, whether, under such 
 circumstances, it will afford the grantee a remedy for the debt against the 
 grantor. Id, 
 
 41. Defeasance need not be of same date as the deed. Mclnlire v. Shaw, 
 N. S. iii. 316. 
 
 42. The trustees under the second and third mortgages were the agents 
 of the holders of bonds under such mortgages, and actual notice to said 
 trustees of the equitable first mortgage, was notice to the bondholders, who 
 therefore took their bonds subject to all the legal consequences of the exist- 
 ence of the said equitable first mortgage. Miller v. Rutland R. R. Co., N. S. 
 iii. 616. 
 
 43. The corporation had sufficient interest in the subject-matter of the 
 mortgages upon which said mortgage would lawfully be operative. Id. 
 
 44. Mortgage to secure all existing debts without naming them is not void 
 for uncertainty. Michigan Ins. Co. v. Brown, N. S. iii. 46. 
 
 46. Surrender of defeasance and acceptance of new bond for consideration 
 partly new, gives grantee a title in fee. Falls v. Conway Ins. Co., N. S. 
 iii. 506. 
 
 46. Omission of mortgagee's name not cured by delivery to a person to 
 hold as security for money advanced. Chauncey v. Arnold, N. S. ii. 317. 
 
 47. Sufficient evidence of mortgage of a mortgage. Coffin v. Loring, N. S. 
 V. 189. 
 
 48. Separate defeasance withheld from record to defraud creditors is valid 
 and will be enforced between parties. Clark v. Condit, N. S. vii. 768. 
 
 49. A sale of land under an agreement to re-convey at a fixed time, is not 
 necessarily a mortgage. Gleaaon v. Burk, N. S. ix. 391. 
 
 50. An agreement to let the mortgagee retain part of the land, after being 
 paid principal and interest, is usurious. Id. 
 
 51. Fraudulent addition by grantee of name of grantor's wife, will not 
 render invalid. Kendall v. Kendall, N. S. vi. 382. 
 
 52. A deed absolute on its face, but given as security for the payment of 
 
MOETGAGE. 653 
 
 money, is a mortgage, and subject to redemption. Orane v. Decamp, N. S. 
 _x. 351. 
 
 58. A mortgage will pass all structures or fixtures that may be afterwards 
 erected on the land by the mortgagor. P. W. ^ B. Railroad v. ^Yodppel•, N. 
 S. X. 411. 
 
 54. Whenever there is an advance of money to be returned within a speci- 
 fied time upon the security of an absolute conveyance, it is a mortgage, what- 
 ever the form adopted or the understanding of the parties. Harper's Appeal, 
 N. S. X. 411. 
 
 55. The Statute of Limitations is no bar to a reconveyance in such i* 
 ease. Id. 
 
 56. Where a conveyance is made as a security for a loan, it is immaterial 
 what are the terms of the agreement, it will be considered in equity a mort- 
 gage. Danzeisen's Appeal, N. S. xiii. 394. 
 
 57. Where a bill charges that the defendant holds in trust for the plaintiff, 
 and the facts show that there was a mortgage, the Supreme Court will sustain 
 the bill to reach the justice of the case, and disregard the use of inappro- 
 priate terms. Id. 
 
 58. A mortgage on the road is not a lien upon real estate of the company, 
 Walsh V. Burton, N. S. xiii. 654. 
 
 59. A party or company owning land can give a mortgage on it. Robinson 
 V. Atlantic R. R. Co., N. S. x. J96. 
 
 60. A deed of trust from husband to wife, with power for trustee to sell on 
 request of wife, includes a power to mortgage at her request. Zane v. Ken- 
 ned;/, N. S. xiii. 464. 
 
 61. Absolute power to sell includes power to mortgage. Id. 
 
 02. Infant claiming to retain land upon majority affirms mortgage given for 
 prioe during infancy. Young v. McKee, N. S. v. 254. 
 
 63. "Conveying premises," subject to a mortgage executed by the parties 
 of the first part, in the year 1856, suflciently describes the mortgage. John- 
 son V. Zuck, N. S. viii. 439. 
 
 64. Mortgage of husband and wife in New York to purchase stock in trade. 
 James v. Taylor, N. S. v. 126. 
 
 65. A married woman contracting a debt may make an express charge on 
 her separate estate, and her mortgage will be supported iu equity. Frary v. 
 Booth, N. S. iv. 142. 
 
 66. Where the equities are subserved by keeping a mortgage alive, and no 
 injustice is wrought, it will not be extinguished. Clos v. Boppe, N. S. xii. 60. 
 
 67. Deed absolute on its face will be a mortgage if it appear to be only 
 intended as security. Steel v. Steel, N. S. ii. 254. 
 
 68. A mortgage cannot exist as a lien upon lands independent of a debt 
 or obligation secured by it. La Due v. R. R. Co., N. S. v. 59. 
 
 69. Where a conveyance of real estate, and a separate defeasance thereof, 
 are dated on different days, though delivered on the same day, they do not 
 necessarily constitute a mortgage. Haines v. Thomson, N. S. xi. 680. 
 
 70. Parol evidence is admissible of the distinctive acts of the parties, or to 
 show that some time has elapsed, or some circumstance has occurred to sat- 
 isfy the court that the contracts were separate, but not of the mere under- 
 standing of the parties, or their belief as to the legal effect of their acts. Id. 
 
 71. Where a deed of antecedent date, founded upon an acknowledged sale, 
 is alleged to be changed into a mortgage by a subsequent defeasance, the 
 burden of proof is upon the party averring the change in its character. Id. 
 
 72. The fact that the consideration in the deed was the full value of the 
 property repels the idea that the conveyance was intended only as a security. 
 So, also, the fact that there was no obligation on the part of the plaintiffs to 
 pay the debt is inconsistent with the idea that the transaction amounted to a 
 mortgage. Id. 
 
 73. Mortgage to secure existing debts, not specifying their amount, is valid 
 against purchasers with notice. Michigan Ins. Co. v. Brown, N. S. ii. 571. 
 
 74. To secure liabilities already incurred, but not specifying the amount, 
 is good. Young v. Wilson, N. S. iv. 188. 
 
 75. A mortgage by a company after entry on land authorized to be taken 
 for their use, and before judgment for damages, lyould bind their equitable 
 interest. Borough of Boston's Appeal, N. S. iv. 311. 
 
654 MOETGAGE. 
 
 76. Equitable mortgage raised by assignment of legal mortgage security 
 after payment. Peckham v. Hadduck, N. S. iv. 606. 
 
 77. Lex loci governs, though both parties reside in another state. Goddard 
 V. Sawyer, N. S. iv. 765, 
 
 78. A mortgage of real estate is valid without attestation. Carrico v. 
 Farmers' Bank, N. S. i. 414. 
 
 79. Individual property is not embraced by a mortgage ejcecuted by part- 
 ners on their partnership property, unless specifically mentioned. Meid v. 
 Goodwin, N. S. xi. 333. 
 
 80. A deed absolute on its face, if taken as a security, is only a mortgage. 
 Moore v. Wade, N. S. xi. 397. 
 
 81. It is only necessary to show a state of facts outside of a deed which 
 would render the deed a mortgage to make it one. Id. 
 
 82. A deed given as a security, decreed to be a mortgage, and grantor al- 
 lowed to redeem. Sweet v. Parker, N. S. xi. 265. 
 
 83. In a suit to have an absolute deed decreed » mortgage, parol evidence 
 is admissible to establish the true nature of the instrument. Id. 
 
 84. Delay in asserting a deed to be a mortgage has not the same effect in 
 equity as delay in the enforcement of an executory contract. Id. 
 
 85. The only effect of delay ia its bearing on the question of mortgage or 
 no mortgage. Id. 
 
 86. Although no express power is given to use or pledge a mortgage for a 
 particular purpose, such power may be inferred from circumstances. Un- 
 derhill v. Atwater, N. S. xi. 130. 
 
 87. An instrument under seal is good, though no consideration was given 
 for it. Famitm v. Burnett, N. S. x. 208. 
 
 88. A deed absolute on its face, but in fact a mortgage, cannot have its 
 legal effect changed, except by payment or release. Odenbaugh v. Bradford, 
 N. S. xi. 267. 
 
 89. That a deed, absolute on its face, was really given as security for a 
 debt, and intended only as a mortgage, may be shown by parol proof. Hogan 
 V. Jacques, N. S. viii. 120. 
 
 90. A mortgage that, has been satisfied and delivered up, may be again 
 delivered as a valid security by the mortgagor, Underhill v, Atwater, N, S. 
 xi. 130. 
 
 91. A mortgage is in no sense a security similar to a negotiable promissory 
 note^ and does not allow the principles of law which apply to notes or bills 
 to be applied to it. Baxter v. Roelofson, 0. S. viii. 447. ~ 
 
 92. Where a married woman mortgages her separate property to secure 
 the notes of her husband, and such mortgage is procured by misrepresen- 
 tation, she may defend against a suit to foreclose, when it is attempted to 
 charge the land with the debt, when no defence would be open to her hus- 
 band in an action against him on the notes by an innocent holder for value. 
 Jd. 
 
 93. Words in a will authorizing wife to mortgage "if she needs,'" gives full 
 power to mortgage. Edmonson v. Nichol, 0. S. ii. 121 
 
 94. Mortgage made by lunatic to bon§, fide mortgagee valid. Campbell v. 
 Hooper, 0. S. v. 563. 
 
 95. Its origin and history, 0. S. iv. 449. 
 
 96. Distinction between a mortgage and a pledge, see Lewis v. Graham, 0. 
 S. V. 868. 
 
 97. Mortgages and conditional sales, equity liens against conditional sales, 
 and in favor of mortgages. Locke's Executor v. Palmer, 0. S. iv. 251, 
 
 98. Mortgages and conditional sales; absolute deed declared a mort- 
 gage. Id. 
 
 99. A power to a trustee to borrow money, and to grant a mortgage to 
 secure it, in order to pay debts for which the trust estate is liable, will au- 
 thorize a mortgage directly to the creditors themselves, Magraw, Trustee v, 
 Joseph Pennock, 0, S, ii, 186. 
 
 100. A contract which is upon its face a pledge "of land for the payment 
 of money, however inartificially drawn, is a mortgage, and it is incompetent 
 to prove, by oral testimony, that it is a conditional sale. Woods v, Wallace, 
 0. S, ii. 186, 
 
 101. Under the Ohio statute regulating railroads, a chartered railroad ia 
 
MORTGAGE. 655 
 
 fully authorized to execute a mortgage as security for money borrowed upon 
 bond. Ludlow v. Ilurd, 0. S. vi. 493. 
 
 102. "Wliere tlie mortgage describes the property as " the right of way and 
 land occupied thereby, together with, etc.," enumerating every Itind of prop- 
 erty attached to and used by a railroad, and added, "and other property 
 then owned by or thereafter to be acquired and owned by the said company," 
 it was held that in equity furniture contained in the company's business 
 office, if necessary for the operation of the road, was within the language of 
 the mortgage, and that an execution levied on it must be postponed to the 
 lien of the mortgagee. Id. 
 
 103. Where a power of attorney is given by three tenants in common of 
 village lots, for the sale, leasing, and absolute disposal of all or any part of 
 their interest in said lots, and the attorney conveys the share of one of the 
 principals, and talies a conveyance bacli and then mortgages the same 
 interest for money loaned, all at the same time, the mortgage is in equity 
 the mortgage of tlie principal. The Cleveland Insurance Company v. Reed and 
 his wife, Rogers, and the Milwaukee and Mississippi Railroad Co., 0. S. vi. 406. 
 
 104. A covenant on the part of a settler upon surveyed lands of the United 
 States to purchase those lands as soon as they are surveyed and offered for 
 sale by the government, and then mortgage them to a creditor for the 
 security of a debt, is not a contract in violation of sections 4 and 5, by an 
 Act of Congress, entitled, " An Act for the relief of the purchasers of public 
 land, and for the suppression of fraudulent practices at the public sales of 
 the lands of the United States." Wright v. Shumway, 0. S. ii. '10, 
 
 105. An equitable mortgage springs from an agreement that there shall be 
 a lien. A covenant by a debtor with his creditor to purchase certain lands 
 therein described, and to mortgage them to said creditor as a security for a 
 debt, is an equitable mortgage, and will be enforced in equity by a decree 
 of sale of the premises in pursuance of a prayer of a bill for that purpose. Id. 
 
 106. Where a settler on public lands, entitled to a pre-emption, procures a 
 capitalist to pay the purchase-money into the land-office and allows him to 
 take the receiver's receipt in his own name, or mali:es an assignment to him 
 of his certificates of location as his security for such payment, upon receiving 
 back a bond for a deed upon repaying on a certain day the said purchase- 
 money with interest and the annual taxes on the land ; this is in equity, a 
 mortgage of the premises, redeemable by the settler or his assigns, at or 
 before the time the said money becomes payable according to the conditions 
 of the bond. Id. 
 
 III. Mortgage of Future Acquired Propektt, and to Secure Future 
 Advances. 
 
 107. Mortgage to secure future advances. — Subject discussed. N. S. xi. 
 273; N. S.ii. 1. 
 
 108. Mortgage by R. R. Co., including future receipts for transportation, 
 gives an equitable lien on property subsequently acquired. Coe v. R. R, Co., 
 0. S. vi. 27. 
 
 109. A railroad company authorized its president to issue bonds secured 
 by a mortgage on the road and its franchises. The president executed an 
 instrument reciting his authority, and proceeding in his name as president 
 to mortgage the road, etc., but he signed the instrument in his own name 
 simply. Afterwards, the company issued two sets of bonds, secured by 
 second and third mortgages in due form. The first bonds not having been 
 paid when due, the trustees filed a bill to foreclose the mortgage, and there- 
 upon it was held, that the corporation had a legal competency to pledge its 
 credit for the procurement of rails, and to secure payment by a mortgage. 
 Miller et al. v. The Rutland Railroad Co., N. 8. iii. 616. 
 
 110. A mortgage of property in which the mortgagor has no present 
 interest, and which he must acquire, if at all, in substitution for or independ- 
 ently of any property he now has, is not valid to create any lien which equity 
 will recognize or enforce. Wilson v. Seibert, N. S. viii. 608. 
 
 111. A mortgage of property "to be thereafter acquired," is good and 
 binding. F. W. ^ Ii. Railroad y. Woelpper, N. S. x. 411. 
 
 112. One may grant the future accretions of any subject he owns at the 
 time of the grant. Id. 
 
 113. Equity will treat a mortgage of property, whether real or personal, 
 to be subsequently acquired, as a binding contract. Id. 
 
656 MOETGAGE. 
 
 114. Mortgage to secure future advances where the mortgagee has defi- 
 nitely agreed to make such advances when recorded, is not affected by a, 
 subsequent mortgage of the same property, though the advances may be 
 made after such record. Boswell v. Goodwin et al., N. S. iii. 79. 
 
 115. Where, however, it is optional with the mortgagee to make the 
 advances or not, and he has actual notice of a later mortgage upon the same 
 property for an existing debt or liability, such later mortgage will take pre- 
 cedence of the prior one as to all advances made after notice. Id. 
 
 116. Whether the record of the later mortgage would not be sufficient 
 notice to the prior mortgagee; and whether a mortgage to secure future 
 advances, to be made or not at the option of the mortgagee, should not stand 
 in all respects as if it was executed at the time the advances are in fact made : 
 Qussre. Id. 
 
 117. It makes no difference that such later mortgage is given to secure 
 future advances to be made or not at the option of the mortgagee, so long as 
 the advances under it are actually made before the advances under the prior 
 mortgage over which they claim precedence. Id. 
 
 118. A knowledge of the existence of the later mortgage is enough to 
 affect the prior mortgagee, as to his future advances, even though he be not 
 notified of the advances actually made under the later mortgage. Id. 
 
 119. Effect of registration. Note to Boswell v. Goodwin, N. S. iii. 91. 
 
 120. Instrument held not to be for indemnity merely. Butler y . La Due, 
 N. S. iii. 248. 
 
 121. A creditor, who took from his debtor a mortgage declared to be a 
 continuing security for an amount less than the debt. Held, to have made sub- 
 sequent advances on the faith of the mortgage, although the original indebt- 
 edness was never reduced, but was continually increasing. Faaaett v. Smith, 
 N. S. i. 180. 
 
 122. To indemnify against loss from a future liability, is valid. Goddard 
 V. Sawyer, N. S. iv. 765. 
 
 123. Of personalty to secure future indebtedness not valid against a judg- 
 ment-creditor of mortgagor for claims accruing after his suit. Barnard v. 
 Moore, N. S. iv. 116. 
 
 124. A mortgage in the common form was given to secure moneys cove- 
 nanted to be advanced as buildings upon the premises progressed. Held, 
 
 1. That the instrument by which the terms of the loan were regulated 
 need not be recorded. 
 
 2. That the mortgage had priority of lien over the claims of mechanics 
 from the date of its record, and not from the dates of its actual advance. 
 
 3. The agreement that the money should be appropriated towards paying 
 for materinls and workmanship, neither postponed the mortgage nor required 
 the mortgagee to see to the application of the money. Cadwallader v. Montr 
 gomery, 0. S. iii. 169. 
 
 125. Mortgage to secure future advances is valid, but will not secure ad- 
 vances made after actual notice of a subsequent mortgage. Ripley v. Harris, 
 N. S. xii. 467. 
 
 126. Where a mortgage has been given to indemnify an accommodation 
 indorser of a note, and the note at maturity is not paid, but renewed, with a 
 renewal of the indorsement, the security applies to the renewal note in the 
 same manner as to the original one. So long as the renewal note is not paid, 
 the indorser is not indemnified for his original indorsement. Boswell^. 
 Goodwin, 0. S. iii. 79. 
 
 127. Though mortgage cannot be continued as security for new indebted- 
 ness by oral agreement, yet equity will not aid mortgagor to obtain a release 
 from mortgagee. Joslyn v. Wyman, N. S. ii. 510. 
 
 128. To secure bond by which time for payment of prior indebtedness was 
 extended. Bank v. Bowman, N. S. v. 182. 
 
 129. Rights of subsequent lien creditors — set-off— whether property of a 
 foreign sovereign can be attached — after acquired property when bound by a 
 mortgage, see Rowan v. Sharp's Rifle Co., N. S. i. 380. 
 
 ISO. A mortgage made for future advances is good against a subsequent 
 purchaser or mortgagee. Famum v. Burnett, N. S. x. 203. 
 
 131. Lien under, cannot attach for larger sum than actually loaned. Free- 
 man V. Auld, N. S. V. 254. 
 
MOETGAGE. 657 
 
 JV. Op the Rights and Duties "of Moetgagor. 
 
 182. A mortgagor paying a note for which the mortgage has been pledged 
 as security, is subrogated to the place of the payor. Eamend v. Huelbig, N. 
 S. xii. 61. 
 
 133. If a receipt in full of the payee's claim is taken on the mortgage, the 
 mortgagor is entitled to a credit for the full amount, although a deduction 
 was allowed by payee. Id. 
 
 134. Party assuming payment of encumbrance, as part consideration of 
 conveyance, cannot be considered as a mortgagor. Mason v. Barnard, N. S. 
 T. 445. 
 
 135. Mortgagor's right to call upon mortgagee in possession to account, 
 must be enforced in equity. Seaver t. Durant, N. S. vi. 718. 
 
 136. Right to hold mortgagee responsible for waste after condition broken, 
 is only an equity. Id. 
 
 137. The entire legal interest is in the mortgagee in possession after con- 
 dition broken. Id. 
 
 138. Valid payment by mortgagor, against assignee. Horstman t. Gerlter, 
 N. S. V. 189. 
 
 139. A mortgagor who has sold land subject to the mortgage as part of the 
 consideration, is entitled to be subrogated to the mortgage, and repaid what 
 he has paid on his own bond, if he is the donee of the mortgage, StiUman's 
 Executors t. StiUman, N. S. x. 349. 
 
 140. An account rendered by a mortgagor to an attacking creditor is not 
 necessarily false within the statute of New Hampshire, because by mistake 
 it is greater than the amount actually due. Putnam v. Osgood, N. S. xi. 662. 
 
 141. Mortgagee assigning the mortgage and then purchasing the mortgaged 
 premises, takes them subject to the mortgage — over-payments made by him 
 may be recovered back. Thompson v. Otis, N. S. iv. 315. 
 
 142. Where a, married woman executed a mortgage upon her separate 
 property under representations which were false and fraudulent, which 
 mortgage would not have been executed had such misrepresentation not been 
 made, and at the same time her husband made a negotiable promissory note 
 which was secured by and accompanied this mortgage, and such negotiable 
 promissory note passes into the hands of a holder without notice for value, 
 the wife may make a valid defence to such note, because the mortgage is the 
 principal debt, and the negotiable paper is incident to it. Baxter v. Roelofson, 
 0. S. viii. 477. 
 
 143. Equity will not help mortgagor without allowing advancements made 
 after breach of condition of mortgage under oral agreement. Stone v. Lane, 
 N. S. ,. 319. 
 
 v. Op the Interests and Rights op the Mortgagee, and of the Extent 
 OF HIS Lien and op Contests between Mortgagees. 
 
 144. A mortgagee in possession and taking the rents and profits, can 
 acquire no title against the mortgagor or his assignee, by a purchase of the 
 laud at a sale for the taxes upon it ; but he may add the sum paid for such 
 taxes, to the mortgage-debt as expenses necessarily incurred in protecting 
 the estate. Brown v. Simons, N. S. iii. 154. 
 
 145. Mortgagee who has been fraudulently induced to give up his mort- 
 gage for other securities, may have an action to foreclose against a purchaser 
 from the mortgagor. Grimes v. Kimball, N. S. iv. 118. 
 
 146. Where one holds the legal title as security, and purchases the tax cer- 
 tificates, he holds those in trust also, and is entitled to interest on their 
 amount. Fisk v. Brunette, N. S. xii. 194. 
 
 147. A mortgage reformed by substituting "heirs" for "successors" will 
 not affect a subsequent judgment, if the record at the time showed it to be a 
 mortgage for life only. Wheeler v. Kirtland, N. S. xii. 321, 
 
 148. Estate of the mortgagee. Steel v. Steel, N. S, ii. 254, 
 
 149. Title in mortgagee by holding property as absolute owner for twenty 
 years, Reynolds v, Qreen, N, S, ii, 126, 
 
 150. Mortgagee may have personal action against grantee who assumes to 
 pay it. Burr v. Been, N. S, ii. 318, 
 
 151. Of land subject to homestead right conveys the reversionary interest 
 of mortgagor though the wife does not join. Smith, v. Provin, N. S. ii. 378. 
 
 152. Mortgagee of reversionary interest may maintain a bill to redeem a 
 prior mortgage. Id. 
 
 42 
 
658 MORTGAGE. 
 
 153. Estoppel of mortgagee from denial of title. Brown y.^ConAs etvl., 
 Brown v. Coombs, 53. 
 
 154. Right of mortgagee in trust to hold the mortgage for compensation 
 for his "just allowances." Allen y. Bobbins, N. S. ii. 442. 
 
 155. Holder of second mortgage may compel holder of first, who has taken 
 possession, to account for all rents, &c., he might have received by due dili- 
 gence. Richardson y. Wallis, N. S. ii. 510. 
 
 156. Duty of iirst mortgagee to protect second.- James v. Brown, N. S. ii. 694. 
 
 157. Mortgagee refusing tender not entitled to interest, and liable for 
 costs on bill to redeem. Brown v. Simons, N. S. iv. 508. 
 
 158. To secure future advances is valid under the Code of Maryland. 
 Brooks y. Lester, N. S. xii. 259. 
 
 159. The fact that the advances are to be in materials instead of money 
 does not affect its validity. Id. 
 
 160. Owner of the land, to secure the payment of an annual sum, will be 
 held posterior in equity to a mortgage of later date given to secure the pay- 
 ment of joint notes made by the mortgagor and A. Kaehler y. Dibble et al., 
 N. S. xii. 464. 
 
 161. The later mortgage will also be prior in equity to one of earlier date 
 given at A.'s request as an advancement to his other children. Id. 
 
 162. In a contest between mortgagees the clause creating the lien must 
 prevail. Ripley v. Harris, N. S. xii. 467. 
 
 163. A mortgagee holding two notes secured by one mortgage can transfer 
 one note and the mortgage so as to give the note priority in satisfaction. 
 Noyes v. White et al., N. S. xii. 60. 
 
 164. A mortgagee who has been paid, is liable to a penalty for refusal to 
 enter satisfaction on the record. Verges v. Giboney, N. S. x. 208. 
 
 165. Notes secured by, to be paid from proceeds of sale, in order of their 
 ■maturity. Thompson v. Field, N. S. vi. 253. 
 
 166. An entry by a mortgagee, in the name of the whole, upon one of sev- 
 eral lots of wild land, conveyed by the same mortgage, and in the same 
 county, would give him constructive legal possession of all. Qreeny.Pettin- 
 gill et al,, N. S. viii. 64. 
 
 167. The equity of a subsequent mortgagee, without notice of the vendor's 
 claim, to machinery sold under a condition that it shall remain the property 
 of the vendor until paid for, is paramount to that of the vendor. Davenport 
 V. Shants, N. S. xi. 60. 
 
 168. If the machinery is not put up until after the execution of the mort- 
 •igage, the right of the conditional vendor is paramount to the mortgagfee. Id. 
 
 169. A mortgagee in possession of personal property cannot hold it as 
 pledgee, if the mortgage proves to be void. Janvrin y. Fogg, N. S. xi. 267. 
 
 J70. The creditors of a mortgagee may take and hold property in posses- 
 sion of the mortgagee under a fraudulent mortgage discharged from the lien 
 of the same. Id. 
 
 171. Transferee of policy of insurance cannot recover loss in case of con- 
 veyance of premises by mortgagor. Orosvenor v. Insurance Co., 0. S. vii. 118. 
 
 172. Right of mortgagee to claim rent of premises. Russell y. Allen, N. 
 S. i. 56. 
 
 173. Mortgage to secure support and maintenance of the mortgagees — 
 condition when broken, see Pettee v. Case, N. S. i. 382. 
 
 174. First mortgagee who purchases, may require second mortgagee to re- 
 deem, or be foreclosed. Parker v. Child, N. S. xiv. 328. 
 
 175. First mortgagee entitled to be redeemed to full extent of purchase- 
 money paid by him. Id. 
 
 176. He must account for rents and profits during his occupation. Id. 
 
 177. Of wife's separate estate, presumption that wife was surety for hus- 
 band. Hudson V. Carmichael, 0. S. iii. 318. 
 
 178. Agreement between holders of first and second, for foreclosure and 
 purchase. Livingston y. Painter, N. S. v. 190. 
 
 179. When judgment in foreclosure suit not conclusive on a partv thereto. 
 Lee y. Parker, JH.S.y.im. ^ •' 
 
 _ 180. Under statute in Missouri, proceeding to foreclose equity of redemp- 
 tion is at law. Mason v. Barnard, N. S. v. 445. 
 
 181. The duties of a mortgagee making a sale, are analogous to those of a 
 
MOETGAGE. 659 
 
 trustee, and the court will determine upon the propriety of the sale. Horsey 
 \. Hough, N. S. xiii. 261. 
 
 182. The right of a mortgagee under a power in the mortgage to sell the 
 mortgaged premises in case of default, is not impaired or suspended by the 
 war, on account of the voluntary residence of the mortgagor in the hostile 
 section. Degiverville v, Dejarnette, N. S. xiii.. 318. 
 
 183. Notice required under a power of sale in a mortgage is not for the 
 benefit of the mortgagor in the sense of notice to him. It is only to secure 
 his right to a fair sale of the property. Id. 
 
 184. Accretions, by growth of cuttings from plants mortgaged, pass to the 
 mortgagee. Bryant y.Pennell, N. S. xiii. 125. 
 
 185. A subsequent attempt to convey property so as to delay creditors 
 cannot affect a mortgage fairly given to secure a bonS, fide creditor. Stillman 
 Y.StiUman, N. S. x. 346. 
 
 186. The creditor is entitled to have mortgage-debts due the judgment 
 debtor collected by a receiver. Tantum v. Green, N. S. x. 346. 
 
 187. The vendee of a lot of ground under a parol contract, entered into 
 possession before payment of the purchase-money, and erected a building. 
 Afterwards, by an arrangement between the vendor and the owner of the 
 equitable estate, a conveyance was made to the latter, who, at the same time, 
 and as part of the same transaction, executed a mortgage of the premises to 
 a third person, to secure the purchase-money, which was advanced by him 
 to the vendor. The mortgagee had no notice, actual or constructive, of the 
 previous existence of the equitable estate ; and the building was then com- 
 pleted, but not occupied. The mortgage was not recorded within sixty days 
 after its apparent date, though it was so on the day of its actual delivery. 
 The premises being afterwards sold under the mortgage, it was held that the 
 mortgagee was entitled, on distribution of the proceeds of sale, to priority 
 over mechanic's liens for work and materials employed in the erection of the 
 building, though it was alleged that the holders of these liens had abstained 
 from bidding at the sale, so as to protect themselves, under the belief that 
 the date of the mortgage was its true date, and that it had therefore lost its 
 lien. Campbell and Pharo's and Siner's Appeal, 0. S. vi. 751. 
 
 188. Whether in such case, if the mortgage be given to secure a larger 
 amount than the purchase-money. The mortgagee, even though ignorant of 
 this fact, could claim priority over the mechanic's liens for more than the 
 actual amount of the purchase-money. Qusere. Id. 
 
 189. Where four mortgages on same property, payable in different years, 
 were recorded same day, the one first payable was first assigned, and the 
 property was sold at sheriff's sale for less than the amount of the whole. 
 Held, that each mortgage was entitled to pro rata dividend. Carnahan v. 
 Dyer, 0. S. ii. 121. 
 
 190. An action to foreclose a mortgage which has not been discharged, but 
 has been delivered up to the mortgagor, together with the note which it was 
 given to secure, may be maintained by proving to the satisfaction of the jury 
 that the note has never in fact been paid, and that such delivery of the note 
 and mortgage was procured through the fraud of the mortgagor, in falsely 
 representing that another worthless note and mortgage of real estate, deliv- 
 ered to and accepted by the mortgagee in the exchange therefor, were good 
 and sufficient. Grimes v. Kimball, N. S. i. 668. 
 
 191. Lien of mortgage is discharged by tender, and refusal after the mort- 
 gage is due and before foreclosure. Van Husan v. Kanouse, N. S. iv. 576. 
 
 192. The mortgagee has no claim in law on the proceeds of a policy effected 
 by the mortgagor, unless the policy has been assigned to him. 2ns. Co. v. 
 Berry, N. S. xi. 60. 
 
 193. Mortgagor will not be allowed to commit waste upon the mortgaged 
 premises. Ooggill y.M. L. Co., T>!. S. xi-y. S2S. 
 
 194. Creditor purchasing, subject to mortgage, at sale on prior execution 
 cannot dispute the validity of mortgage. Horton v. Davis, N. S. iii. 700. 
 
 195. Where H. receives a deed, and at the same time reconveys the land in 
 mortgage to his grantor, wife of H. not entitled to dower as against mort- 
 gage. Hinds V. Ballou, N. S. iii. 126. 
 
 196. Rule of fixtures between mortgagor and mortgagee. Lynde v. Rowe, 
 N. S. vi. 316. 
 
660 MOETGAGE. 
 
 197. Mortgage by grantee itomediately on conveyance will bar dower. 
 King y. Stetson, N. S. yi. 185. 
 
 198. Validity of mortgage of plants growing upon a farm. Wintermute 
 y. Light, N. S. vi. 188. 
 
 199. Liens for money advanced to a captain for repairs to a ship in a for- 
 eign port have a priority over existing mortgages. The Emily Souder, N. S. 
 xiii. 335. 
 
 200. Such lien will destroy priority of subsequent mortgage. Straus's 
 Appeal, N. S. v. 254. 
 
 201. The rights of the mortgagor and mortgagee are reciprocal. Arrington 
 v. Liscom, N. S. viii. 123. 
 
 202. The mortgagee of a ship, to whom the policy is assigned in blank, is 
 entitled to receive the money in case of loss. Ins. Co. of Pa: v. Phoenix Ins. 
 Co., N. S. xii. 788. 
 
 203. The rights of parties inside the Confederate lines were not affected by 
 proceedings to foreclose a mortgage inside the Federal lines. Dean v. Nelson, 
 N. S. X. 69. 
 
 204. Coupon detached from bond is still lien under the mortgage. Miller 
 V. R. R. Co., N. S. vii. 762. 
 
 205. A purchaser under decree of foreclosure of prior mortgages cannot 
 take advantage of the want of power of the attorney; but he can inquire 
 into the true consideration of the mortgage. The Cleveland Ins. Co, \ . Reed 
 and Wife, and the R. R. Co., 0. 9. vi. 406. 
 
 206. A second mortgagee of land may maintain an action to foreclose his 
 mortgage against the first mortgagee, who is in possession for the purpose of 
 foreclosure, if the latter is also the owner of the equity of redemption ; and 
 under his execution may be put temporarily in possession, without an actual 
 ouster of the first mortgagee. Cronin v. Hazeltine, N. S. i. 569. 
 
 207. Where a junior mortgagee purchases the property at a trust sale, and 
 enters into possession, he cannot be disturbed by a holder of legal title simply. 
 Beach v. Shaw, N. S. xii. 193. 
 
 208. The second mortgage having been made, with notice of the circum- 
 stances, has no equity to come in before the first. Id. 
 
 209. Contract between first and second mortgagees. Livingston v. Painter, 
 N. S. v. 121. 
 
 VI. SOBEOGATION AND EqTTITABLE CONTRIBUTION. 
 
 210. Effect of creditor's payment of prior mortgage. Chandler v. Dyer, N. 
 S. v. 508. 
 
 211. An accommodation-indorser, who takes a mortgage from principal, is 
 entitled to the benefit of such mortgage. Nat. State Bank v. Davis, N. S. 
 xiv. 62. 
 
 212. Where a junior incumbrancer pays the amount due on a prior incum- 
 brance, he is entitled to be subrogated to the rights of such prior incum- 
 brancer as against the mortgagor. Penn v. Railway Co., N. S. xi. 576. 
 
 213. But where the interest only upon the debt secured by the prior mort- 
 gage is due, and the same is paid by a subsequent mortgage, his lien upon 
 the mortgaged property, which results from such payment, will be postponed 
 to the payment of the residue of the prior mortgage debt. Id. 
 
 214. The doctrine of subrogation and equitable contribution discussed. 
 Note to Brown v. Simons, N. S. iii. 165. 
 
 VII. COBPORATION MOKTOAGES. 
 
 215. A corporation has power to mortgage its franchises with its other 
 property to secure its liabilities. Morrill v. Noyes, N. S. iii. 18. 
 
 216. A mortgage made in the corporate name of a consolidated company 
 extending into two states by the oflScers of the company in Illinois is the sole 
 mortgage of the Illinois corporation. R. * M. R. R. Co. v. F. L T. Co N S 
 ix. 2B0. 
 
 217. The instrument executed by the president not being executed by or 
 in the name of the corporation, cannot operate as its deed. Miller v. Rut- 
 land R. R. Co., N. S. iii. 616. 
 
 218. The transaction in a court of equity is an equitable mortgage, and thus 
 entitles the holders of what was intended to secure the first mortgage-bonds, 
 to their full right in equity to the mortgage intended to be given. Id. 
 
MORTGAGE. 661 
 
 VIII. Of the Time when Payable and of the Provisos foe the Payment 
 OF Expenses fob. Collection, and that Pkincipal shall become due 
 IN Default of Payment of Intkhest. 
 
 219. A murtgage given to secure a debt then due and payable may be re- 
 deemed or foreclosed at any time. M'riffhi v. Shumway, 0. S. ii. 20. 
 
 220. "Payable in iive years," may be paid any time within five years. 
 Horstman v. Gerker, N. S. v. 189. 
 
 221. If the mortgage authorizes payment of the expenses of the mortgagee, 
 a court of equity may pay costs and counsel fees out of the funds in its 
 hands. Branson v. R. R. Co., N. S. iv. 707. 
 
 222. Condition that principal shall become due on default of payment of 
 interest. Valentine^. Van Wagner, N. S. ii. 61. 
 
 IX. MOETQAQE AnTEBIOR TO MECHANIC'S LlEN, AND WHERE MADE BEFORE BUT 
 
 Recorded after Judgment. 
 
 223. To give a mortgage priority over mechanics' liens the mortgage must 
 be recorded before building is commenced. Brooks v. Lester, N. S. xii. 259. 
 
 224. Mortgage recorded after judgments is entitled to priority if judgment- 
 creditors had actual knowledge of it before the debts were contracted. Brit- 
 ton's Appeal, N. S. iii. 573. 
 
 225. An anterior mortgage takes priority over u, mechanic's lien only to 
 the extent of the value of the property at the time the mechanic's lien at- 
 tached. Oroskey v. Northwestern Manufac. Co., N. S. ix. 386. 
 
 X. Of the Recording of the Mortgage and herein of Stamping. 
 
 226. Record of a mortgage to secure future advances, is notice to subse- 
 quent mortgagees or purchasers to extent only of the advances made prior 
 to such subsequent mortgage or purchase. La Due v. R. R. Co., N. S. v. 59. 
 
 227. Possession by the mortgagee of personal property, answers instead of 
 the record of the mortgage. Janvrin v. Fogg, N. S. xi. 267. 
 
 228. The mortgage first recorded has the prior lien. Ripley v. Harris, N. S. 
 xii. 467. 
 
 229. A chattel mortgage is required to be recorded only when mortgagor 
 retains possession. Morrow v. Reed et al., N. S. xii.194. 
 
 230. All irregularities in recording a mortgage or describing property are 
 cured by subsequent delivery of property to mortgagee, before other parties 
 have acquired rights. Id. 
 
 231. One first recorded, presumptively the prior lien. Freeman v. Schroe- 
 der, N. S. i. 190. 
 
 232. Burden is upon junior mortgage to overcome this presumption. Id, 
 283. Sufficient evidence therefor. Id. 
 
 234. Evidence of delivery of. Id. 
 
 235. Priority of, by agreement. Id. 
 
 236. It seems that where land is sold under an executory contract, liens 
 against the equitable estate of the vendee will be postponed to a purchase- 
 money mortgage executed on the subsequent conveyance of the legal estate, 
 though that mortgage be not recorded within sixty days ; and though it be 
 made to a third person, and not to the vendor ; provided it be given as a 
 part of the same transaction, and in fact to secure the purchase-money. 
 Campbell and Fharo's Appeal, Siner's Appeal, 0. S. vi. 751. 
 
 237. Mere recording, without knowledge of or delivery to grantee, is not 
 legal delivery; and subsequent ratification by grantee will not out out an 
 intervening mortgage for value. Parmalee v. Simpson, N. S. vii. 60. 
 
 238. Stamp not necessary on mortgage to seeure contingent liabilities. 
 Vail V. Knapp, N. S. vii. 511. 
 
 239. Mortgages on vessels duly recorded are entitled to preference over 
 liens for supplies, &c. Matter of Dwight Scott, N. S. ix. 349. 
 
 XI. Mortgages Defectively Executed. 
 
 240. A mortgage executed by one of the firm in trust for both is the joint 
 contract of all the firm. Crosby v. Jerolman, N. S. xii. 665. 
 
 241. The refusal of vendor's wife to join in the conveyance and inability 
 to give a mortgage by vendee does not permit vendor to withdraw from his 
 agreement. Corson v. Mulvaney, N. S. iv. 478. 
 
 XII. Of the Assignment and Notice thereof — and of the Effect of Dec- 
 
 laration OF no Set-off. 
 
 242. By the statute of Colorado a mortgage is not assignable so as to cut 
 
662 MOETGAGE. 
 
 out any tlefence of the mortgagor, and the fact that it was given as security 
 for a negotiable note does not alter its character in that respect. Longen v. 
 Carpenter, N. S. X. 050. 
 
 243. The assignment of a negotiable note secured by mortgage Carries the 
 mortgage with it as an incident, but this is so only in equity, and if the as- 
 signee comes into equity to foreclose the mortgage he Will be made to do 
 equity in regard to any defence the mortgagor may have against the original 
 mortgagee. Id. 
 
 244. A promissory notCj though secured by mortgage, is still negotiable, and 
 when a holder for value who took in good faith before maturity sues on the 
 note at law he will be entitled to judgment for the full amount of the note ; 
 hut if he goes into equity to foreclose the mortgage the court will let in any 
 defence that would have been good against the mortgagee himself. Id. 
 
 245. A. made a promissory note to B. and secured it by a mortgage; and 
 also by a quantity of wheat delivered to B. to be sold and the proceeds ap- 
 plied in payment of the note. B. sold a portion of the wheat but did not 
 apply the proceeds to A.'s credit, and subsequently assigned the note and 
 mortgage to C. On a bill in equity by C. to foreclose the mortgage, it was 
 held that A. could recoup the value of the wheat sold by B. before the assign- 
 ment. Id. 
 
 246. The mortgagee in a mortgage made to secure a negotiable promissory 
 note for liquors sold in violation of law, may convey a good title thereto by 
 assigning the same with the note, before its maturity, to one who takes them 
 for a valuable consideration without notice. Taylor v. Page, N. S. iii. 121. 
 
 247. The assignee of a mortgage on land subject to re-entry for non-pay- 
 ment of rent on a lease in fee, is entitled to tack the rent actually paid to 
 protect his interest, to the amount of his mortgage, where the mortgagor 
 has assumed such payment of rent. Robinson v. Ryan et al., N. S. iii. 58. 
 
 248. The purchase of a mortgage by the executors of the mortgagor, 
 where a third party owns the premises, does not satisfy it. SUUman's £x'rs 
 V. Stillman, N. S. x. 349. 
 
 249. A complainant to whom a mortgage has been assigned for a specific 
 debt, can only have a decree for that debt, though the whole mortgage is 
 assigned to him pending the suit, tinderhill v. Atwater, N. S. xi. 130. 
 
 250. An assignee of a mortgage takes it subject to all the equities to 
 which it was liable in the hands of his assignor. Kamendir. Huelbig, N. S. 
 xii. 6l. 
 
 251. Assignee of, takes subject to all equities in favor of mortgagor, at 
 time of assignment. Horstman v. Gerker, N. S. v. 189. 
 
 252. It does not require a written instTument to assign a bond even at law, 
 delivery of bond and mortgage is sutficient. Kamend v. tlueUng, N. S. xii. 61 . 
 
 253. That the maker of the note, pledging a mortgage as security, is a 
 married woman makes' no difference, her husband being present and ap- 
 proving. Id. 
 
 254. The non-delivery of the mortgage at the time of the assignment, is 
 notice to assignee that it is held by some one as owner or claimant. Id. 
 
 255. Fraudulent assignment of, after payment, will not be set aside on bill 
 by mortgagee, or one to whom he had agreed to assign it. Jewelt v. Bavis, N. 
 S. V. 320. 
 
 256. Where one having the right of redemption redeems the mortgaged 
 premises by the payment of money, the transaction will be treated as an 
 assignment of the mortgage. Hinds v. Ballon, N, S. iii. 126. 
 
 257. The quit-claim deed of a mortgagee in possession is sufficient to 
 transfer his interest under the mortgage. Id. 
 
 258. The purchaser at a mortgage sale under an attempted statutory fore- 
 closure, void as against the mortgagor for want of notice, stands as an as- 
 signee of the mortgage. Robinson v. Ryan et al., N. S. iii. 58. 
 
 259. One of two executors may assign a mortgage given te his testator. 
 Ifote to Cronin v. Haieltine, N. S. i. 569. 
 
 260. The purchaser who fails to require the production of the bond, is 
 tihai'geable with notice of any defect in the assignor's title thereto. Kelloqq 
 V. Smith, N. S. iii. 499. ' 
 
 261. The law regafds the attachment of a mortgage debt as an assignJnent 
 of the mortgage. Rushton v. Rowe, N. S. x. 344. 
 
MOETGAGE. 663 
 
 262. The assignee of a mortgage of a vessel takes with all the powers and 
 rights of the mortgagee. Dalrympal v. Sheehan, N. S. x. 478. 
 
 263. Right of insurers of mortgagee's interest to assignment upon offer to 
 pay loss and amount due on mortgage. Insurance Co. \. Bryden, N. S. v. 127. 
 
 264. Reconveyance of vessel by way of mortgage is not within the terms 
 of a policy against assignment of insured interest. Hitchcock v. JV. W. Ins. Co , 
 N. S. iii. 500. 
 
 265. In an action by a mortgagee against a creditor of the mortgagor for 
 illegally attaching the mortgaged goods where there is no evidence of mali- 
 cious wrong on the part of the defendant, exemplary damages should not 
 be allowed. Wanamaker v. Bowes, N. S. xii. 61. 
 
 266. The assignee of a mortgage, holds it subject to all the equities to 
 which it was liable in the hands of the assignor, unless the mortgagor has 
 estopped himself. Ashion's Appeal, N. S. xiii. 395. 
 
 267. The mortgagor having given a certificate of "no defence" cannot set 
 up one against an assignee. Id. 
 
 268. A subsequent assignee may avail himself of a certificate given to a 
 former, if he shows that he is an assignee for value without notice. Id. 
 
 269. A purchaser with notice of fraud or trust may protect himself under 
 a prior purchaser without notice. Id. 
 
 XIII. Where pakt of Mortgaged Premises are Solo, Balance Primarily 
 Liable foe Whole Debt. 
 
 270. Purchaser of a portion of the land from mortgagor entitled to make 
 tender of the amount of the mortgage and hold a lien on the rest of the land, 
 but not to have counsel fees or costs as against subsequent purchasers. 
 Brown v. Simons, N. S. iv. 508. 
 
 271. Mortgagee may release a portion of the land without impairing his 
 lien on the rest unless he has notice of a right in the other part to exemp- 
 tion ; and the record of subsequent conveyance is not such notice. George 
 T. Wood, N. S. iv. 765. 
 
 272. In a bill to redeem, the right to contribution from a grantee cannot 
 be settled unless he is party. Id. 
 
 273. Mortgagee disseised cannot assign. Dadmunn v. Lamson, N. S. iv. 765. 
 
 274. Where the mortgagor sells portions of the land at different times, 
 that which he retains will, in equity, be held primarily liable for the whole 
 debt : and if not sufiicient, the several parcels sold will be liable in the in- 
 verse order of such sales, beginning with the parcel last sold. Brown v. 
 Simons, N. S. iii. 154. 
 
 275. Provided, however, that the previous conveyances not registered, are 
 subject to be postponed to subsequent registered conveyances. Id. 
 
 276. Where mortgaged premises are conveyed in parcels at successive 
 periods, the several parcels are subject to the mortgage in the inverse order 
 of their alienation. Briscoe v. Power, N. S. ix. 125. 
 
 277. The mortgagee in possession will be allowed for reasonable improve- 
 ments. Harper's Appeal, N. S. x. 411. 
 
 278. Where land subject to a' mortgage is conveyed in two parcels, and the 
 pnrcel last conveyed is released, the other parcel must pay such proportion 
 of the mortgage as its value bore to the whole tract at the time of the con- 
 veyance of such parcel. Stillman's Exc'rs v. Stillman, N. S. x. 349. 
 
 279. When part of mortgaged land is sold, remainder constitutes first fund 
 for payment, and purchaser thereof cannot vary this rule. Cooper v. Bigley, 
 N. S. V. 254. 
 
 XIV. Op the Rkmedt. 
 
 230. Statutory foreclosure in Michigan. Lee v. Mason, 126. 
 
 281. Right to foreclose is not lost by the debt becoming barred by lapse 
 of time. Mich. Ins. Co. v. Brown, N. S. ii. 571. 
 
 282. But in such case equity will not make a personal decree against the 
 mortgagor. Id. 
 
 283. Statute prohibiting actions of ejectment on mortgages is inoperative 
 as to those made prior to its passage. Blackwood y. Van Vliet, N. S. ii. 571. 
 
 284. Conveyance subject to usurious mortgage — release of personal lia- 
 bility. Hartley v. Harrison et al., N. S. ii. 57. 
 
 285. Execution cannot issue on decree for foreclosure for balance due after 
 sale. Orchard v. Hughes, N. S. iii. 694. 
 
 286. This applies to Territorial Court of Nebraska. Id. 
 
664 MORTGAGE. 
 
 287. A decree of strict foreclosure which does not find the amount due, 
 and allows no time for the payment of the debt and redemption of the estate, 
 cannot be sustained, in the absence of a special law authorizing it. Clark v. 
 Reybwrn, N. S. ix. 125. 
 
 288. The writ of entry given by the statute of New Hampshire for the 
 foreclosure of a mortgage does not abate by the death of the tenant to the 
 writ, but his administrator becomes a party. Pierce v. Jaquith, N. S. ix. 519. 
 
 289. Parties having a substantial interest in the property are entitled to 
 be made defendants in a suit to foreclose. Bates v. Miller, N. S. x. 69. 
 
 290. A mortgagee could not foreclose his mortgage by proceedings in a 
 court within the Union lines during the rebellion, when the mortgagor was 
 within the Confederate lines. A notice to the mortgagor by publication in a 
 newspaper was not a legal notice, and proceedings founded thereon were 
 wholly void. Dean v. Nelson, N. S. x. 221. 
 
 291. A conditional judgment may be rendered in an action to foreclose a 
 mortgage of land which does not convey an existing estate of homestead 
 therein. Doyle v. Cobiirn, N. S. iii. 120. 
 
 292. A court of equity has power to decree a foreclosure of a junior mort- 
 gage, and a sale of the mortgaged property thereunder, subject to the out- 
 standing lien of a senior mortgage. Penn v. Railway Co., N. S. xi. 576. 
 
 293. The 374th section of the Code of Civil Proceedings of Ohio does not 
 interfere with the exercise of such power. Id. 
 
 294. The failure of a mortgagee to keep his covenants is no defence to a 
 suit for foreclosure. Coursen v. Canfield, N. S. x. 279. 
 
 295. Mortgagor may demand a just account of amount due, and if account 
 is not correct, may tender the true amount, or may file a bill to settle the 
 amount ; but an evident mista]i:e in footing the account when the items are 
 correct will not vitiate it. Currier v. Websler, N. S. iv. 443. 
 
 296. Bill in equity to redeem, in New Hampshire. Mall v. Hall, N. S. vi. 
 882. 
 
 297. By whom and when maintainable. Id. 
 
 298. Enjoining suit at law, thereupon. Id. 
 
 299. A personal decree for deficiency, against mortgagor, is not a lien, 
 until after sale of mortgaged premises, and deficiency shown to exist. Bell 
 V. Gilmore, N. S. xiv. 324. 
 
 300. An agreement with mortgagee at sale, to pay his mortgage if he would 
 not bid, which results in malting the niortgagor liable for a greater deficiency, 
 is a fraud on the latter which vitiates the sale. Morris v. Woodward, N. S. 
 xiv. 326. / 
 
 301. Effect of setting aside a foreclosure and sale is to restore mortgage to 
 its original position. Stackpole v. Sobbins, N. S. vi. 572. 
 
 302. And new proceedings may be commenced. Id. 
 
 303. Mortgage could have been reformed before foreclosure ; but not to 
 prejudice of the purchaser thereunder. Waldron v. Letson, N. S. vi. 571. 
 
 304. There is no need of a preliminary decree for the reformation of the 
 deed, and the court can give immediate effect to the instrument, as if it were 
 reformed in pursuance of a decree of equity. Miller v. Rutland R. R. Co., N. 
 S. iii. 616. 
 
 305. Bond for appeal in bill to foreclose, does not stay sale. Orchard v. 
 Mughes, N. S. iii. 694. 
 
 306. Mortgage with covenants of warranty not merged as a conveyance 
 by decree of foreclosure. Lloyd v. Quinby, 0. S. iv. 699. 
 
 307. In an ordinary foreclosure suit the court will not inquire into the 
 validity of the mortgage on the ground of the lunacy of the mortgagor, but 
 will direct the defendants to try its validity by an ejectment, or by an issue 
 as to the question of sanity. Jacobs v. Richards, 0. S. iii. 126. 
 
 308. The terre tenant of the land cannot set up usury as a defence to a 
 suit on a mortgage. Connover v. Hobart, N. S. xiii. 196. 
 
 309. A mortgagee of land in"Illinois could not sue out his mortgage while 
 the mortgagor was a citizen of Louisiana. Conn. Ins. Go. v. Hall, N. S. vii. 
 606. 
 
 310. Sales of mortgaged premises are in the Federal courts usually made 
 by the marshal of the district where the decree was entered. Blossom v. R. 
 R. Co., N. S. V. 218. 
 
MORTGAGE. 665 
 
 311. Entry by mortgagee claiming the entire title is an ouster of the other 
 tenants. Wood v. Griffin, N. S. v. 703. 
 
 312. Scire facias sur mortgage is "process" within Pennsylvania Act of 
 April 18lh, 1861. Drexel v. Miller, N. S, v. 255. 
 
 313. In an action on a mortgage, it is no defence to show that the premises 
 mortgaged had been insured, and that the mortgagee had received the insur- 
 ance-money on a loss by fire. Young's Adm'ry. Craig, 0. S. iv. 384. 
 
 314. A decree will bear only six per cent, interest, although founded, on a 
 mortgage drawing seven per cent. Wilson v. Marsh, N. S. i. 764. 
 
 315. Decrees in equity, as well as judgments in law, universally bear the 
 legal rate of interest, without regard to the terms of the contract, or to the 
 place where it was executed, whether in the same state or abroad. Id. 
 
 316. A substantial trustee vested with the legal estate is a proper party to 
 a scire facias, on a mortgage given by his predecessor under a power; nor 
 can he raise the objection of a want of joinder of other parties. Magraw, 
 Trustee, ^c. v. Joseph I'ennock, 0. S. ii. 186. 
 
 317. It is perfectly legal for a mortgagee to foreclose for the use of another 
 person. Winchell v. Edwards, N. S. xii. 325. 
 
 318. The heirs of a defendant to such a proceeding are privies, and con- 
 cluded by the judgment. Id. 
 
 319. Though the execution be valid, and describe the land properly, a sell- 
 ing en masse, instead of in parcels, is irregular, and entitles defendant to set 
 aside the sale. Id. 
 
 320. Where the defendant is present at the sale, and takes no steps for 
 nearly a year, he will be presumed to have acquiesced. Id. 
 
 321. The grandchildren of a mortgagor, who devises his estate to his chil- 
 dren, remainder to his grandchildren, should be made parties to a suit of 
 foreclosure. Leggett v. The Mutual Life Ins. Co., N. S. xii. 408. 
 
 322. The insolvency of the estate of the mortgagor does not affect the 
 question. Id. 
 
 323. The trustees under the will of the grandfather could not represent 
 the future estate of the grandchildren in such suit. Id. 
 
 324. It is a good defence to a suit on a mortgage that the defendant was so 
 intoxicated at the time of signing, as to be incapable of executing it. Eeins- 
 hopf v. Rogge, N. S. xii. 531. 
 
 325. In sui^ to foreclose, the mortgagor is entitled to the statute penalty 
 for usury in reduction of the judgment. Minot v. Sawyer, N. S. iv. 119. 
 
 326. But only for usury under the written contract. Id. 
 
 327. If mortgagor performs labor in payment, the debt remains until the 
 actual application of the wages to the discharge ; and if such application has not 
 been made, mortgagor may have bill to redeem. Doody v. Pierce, N. S. vi. 766. 
 
 828. Parties and proceedings in bill to redeem. Id. 
 
 329. Notice to infant heir and his guardian sufficient under a requirement 
 that notice be given to mortgagee, his heirs or assigns. Tracey v. Lawrence, 
 0. S. iii. 317. 
 
 330. Statute of limitations as against mortgagee in possession. Stansfield 
 T. Hobson, 0. S. iii. 318. 
 
 331. A stipulation m a mortgage given to secure a note, not to foreclose, 
 "until the maker's property is exhausted," is complied with, when, after 
 judgment on the note, it appears the maker has no property subject to exe- 
 cution. Biblet v. Davis, N. S. xiii. 779. 
 
 332. In the absence of fraud, a judgment-creditor whose execution has 
 been set aside, whereby the goods were lost to him, may recover the whole 
 amount of his debt from a co-surety of the debtor. Id. 
 
 333. Equity follows the analogies of the law, where an analogous relief is 
 sought upon a similar claim, but where the relief sought is in its nature of 
 equitable, not legal, cognizance, equity follows its own rules. Michigan Ins. 
 Co. V. Brown, N. S. iii. 48. 
 
 334. Therefore, on » bill for foreclosure, and praying a personal decree 
 against the mortgagor, for the balance that should be due if the mortgaged 
 premises should prove inadequate, the court will decree the foreclosure, but 
 the personal decree, under the statute, being in the nature of a legal remedy, 
 wilf not be made after such length of time as would have barred an action at 
 law on the bond. Id. 
 
666 MOETGAGE. 
 
 335. In a suit for a foreclosure, brought by a prior mortgagee against the 
 mortgagor and subsequent mortgagees, where the bill alleges that the peti- 
 tioner indorsed a note of a certain date and amount for the mortgagor, under 
 the mortgage, but contains no allegation that the note was a renewal of a 
 former one. Held, that evidence to prove the note to have been given in 
 renewal of a former note was inadmissible. Boswell v. Goodwin ei al., N. S. 
 iii. 79. 
 
 336. Power of sale may be executed after mortgagor' s death. Vamum v. 
 Meserve, N. S. iv. 188. 
 
 337. On foreclosure of mortgage made by husband before marriage, the 
 wife need not be made party, her remedy is an action to redeem. Smith v. 
 Gardner. N. S. iv. 380. 
 
 338. When a mortgage given to a building association stipulates for the 
 payment of certain fines, a court of equity will enforce their payment. Shan- 
 non V. Howard M. B. A., N. S. xii. 187. 
 
 339. An exclusive possession for more than twenty yearsby a mortgagee is 
 a complete bar to an action to recover possession by a mortgagor. Crooks v. 
 Glenn, N. S. ix. 4-52. 
 
 340. Bill will lie to compel mortgagor to deliver up mortgage intrusted to 
 him to have recorded. Pierce, v. Lawson, N. S. ii. 509. 
 
 341. Attachment of lands in hands of apparent owner but real mortgagee 
 — unrecorded defeasance. Bank v. Jacobs, N. S. ii. 126. 
 
 342. A mortgagee who assigns the mortgage and guarantees the debt is a 
 proper party to a suit to foreclose. Jarman v. Wisevall, N. S. xiii. 331. 
 
 343. That the liability of the guarantor does not take efi'ect until the remedy 
 against the mortgagor is exhausted is no objection to the jurisdiction of a 
 court of equity. Id. 
 
 844. Nor the fact that the guarantor is liable at law. Id. 
 
 345. Motion to amend final decree, to make it personal against guarantor, 
 refused where remedy at law complete. Id. 
 
 346. In a foreclosure suit the rights of an adverse title cannot be adjudi- 
 cated. Simmons v. Emerson et al., N. S. xiii. 523. 
 
 847. Sec. 5154 of Michigan laws, does not mean to give purchaser at fore- 
 closure sale the title, by barring the true owner. Id. 
 
 348. The purchaser must be left to try the hostile title in ejectment. Id. 
 
 349. Persons claiming by title paramount to mortgage,, not to be included 
 in bill to foreclose, unless also interested in the equity of redemption. Hor- 
 ton V. Ingersoll, N. 8. v. 59. 
 
 XV. Of the Release and Satisfaction. 
 
 350. Where the mortgagee was indebted to the mortgagor on account, and 
 it was agreed to apply it in payment by both parties, it will be considered as 
 a payment in money. Putnam v. Osgood, N. S. xi. 6G2. 
 
 351. Mortgagee of personal property may adjourn the sale from time to 
 time, without new notice to mortgagor. Hosmer v. Sargent, N. S. iv. 119. 
 
 352. A mortgage given by a married woman as collateral security for debts 
 contracted by her husband's brother in continuing the husband's business is 
 discharged by the release of the brother from such debts. Underhill v. Ai- 
 water, N. S. xi. 130. 
 
 853. The release by the mortgagee of a portion of the land mortgaged 
 with the knowledge of a prior sale of another portion, will operate as to such 
 prior purchaser as a discharge pro tanto of the mortgage-debt. Brown v. 
 Simons, N. S. iii. 154. 
 
 3.54. The endorsement of payment of part of a mortgage is indicative of 
 a gift or forgiveness of part of the debt. Oreen v. Langdon, N. S. xiii. 458. 
 
 855. Merely endorsing a mortgage with the word " cancelled" amounts to 
 nothing except as evidence of intention. Faxon v, Faxon, N. S. xiii. 453. 
 
 356. Satisfaction of mortgage by receiving other security payable in ten 
 years, is no such payment of debt as allows the statute to run. Heath v. 
 Page, N. S. iv. 639. 
 
 XVI. When Void and Voidablb. 
 
 357. A mortgage was executed to secure to the plaintiff a loan for two 
 thousand dollars on real estate in Michigan, with ten per cent, inter'est, pay- 
 able semi-annually in New York ; the loan to be paid in six years. In New 
 
MOETGAGE. 667 
 
 Tork, if more than seren per cent, interest be stipulated for, it is usurious, 
 and the instrument Is void. Fitch t. Eemer, 0. S. viii. 654. 
 
 358. An agreement that the mortgagor may sell part of the mortgaged 
 chattels on his own account renders the mortgage void as to creditors. Put- 
 nam T. Osgood, N. S. xii. 598. 
 
 359. A chattel mortgage which provides that it is to he a continuing lien 
 upon certain goods in a store, and when they are sold upon such others as 
 replace them, is clearly fraudulent as against creditors, upon its face. Yates 
 V. Olmsted, Adm'r, N. S. xii. 658. 
 
 360. Under such a mortgage an agreement that the mortgagor shall con- 
 tinue to sell the goods mortgaged, and that the business shall proceed as 
 before the mortgage was given, may be fairly implied. Id. 
 
 361. To avoid a mortgage for fraud towards creditors, the intent in the 
 mortgagee as well as the mortgagor must be shown — what may be evidence 
 in such cases. Carpenter v. Muren, N. S. iv. 255. 
 
 362. A mortgage given to secure a wife the capital she had contributed to 
 a firm of which she had been a member, and which was insolvent before she 
 left, is void against the creditors of the firm. Wheeler v. Kirtland, N. S. xii. 
 321. 
 
 363. A mortgage given by a father to secure his son's money used in a 
 firm, though the firm was insolvent when it was given, is valid. Id. 
 
 364. A conveyance made in consideration of the grantees assuming the 
 mortgages on the property, void as to creditors. Mead v. Combs, N. S. viii. 
 120. 
 
 XVII. Of the Title op Purchaser prom Trustee, or at Sheriff's Sale un- 
 der Mortgage, and herein of the Rights op Terre Tenants. 
 
 365. Purchaser of mortgaged premises having an opportunity to defend as 
 terre tenant, cannot afterwards dispute the amount. Schnepf's Appeal, N. S. 
 iv. 189. 
 
 366. Sale is void as to a purchaser not party to the foreclosure. Ohling 
 V. Luitjens, N. S. iv. 443. 
 
 367. W-here the two estates are united in the mortgagee, by a release of 
 the right of redemption, the mortgage will still be held as existing in order 
 to protect the title. Stanton v. Thompson, N. S. xi. 267. 
 
 368. Whether the mortgage shall be kept on foot or not, is ordinarily de- 
 pendent upon the intention of the parties. Id. 
 
 369. Though a sale, by the agent of the trustee under a deed of trust, in 
 the absence of the trustee is illegal, the sale cannot be questioned by one 
 holding simply the legal title. Beach v. Shaw, N. S. xii. 193. 
 
 370. As a general rule the holder of the legal estate under the mortgagor 
 may redeem, but where he asks to do more than redeem, to set aside a pre- 
 vious sale, fairly made, he must show that he has equities before he can be 
 allowed to redeem. Id. 
 
 371. Though only a lien in equity, it ripens into a title on foreclosure. 
 Smith V. Gardner, N. S. iv. 381. 
 
 372. Title of person buying premises sold under a mortgage, in which are 
 incorrectly described, under belief that it covered whole tract. Waldron v. 
 Letson, N. S. vi. 571. 
 
 373. The conveyance of an equity of redemption of land which is subject 
 to a mortgage containing a power of sale, gives to the grantee the right to 
 the surplus, upon a sale of the premises under the power. Buttrick v. Went- 
 worth et al., N. S. iii. 121. 
 
 374. A tenant for years who offers to pay off a mortgage-debt has the right 
 to redeem, and to have the mortgage delivered to him uncancelled. Hamil- 
 ton V. Dobbs, N. S. viii. 187. 
 
 375. The right in equity to redeem the mortgaged property belongs to 
 every person who has a legal or equitable lien on the same, provided he 
 comes in as privy in estate with the mortgagor. Fenn v. Railway Co., N. S. 
 xi. 576. 
 
 376. A bond fide purchaser for valuable consideration holds subject to every 
 equity and defence to which the mortgage is subject in the hands of the 
 mortgagee. Coursen v. Canfield, N. S. x. 279. 
 
 377. Effect of fraudulent sale, after voluntary promise by mortgagee not 
 to sell under a power, without notice to mortgagor. ■ Randall v. Hazelton, N. 
 S. vi. 510. 
 
668 MOETGAGE. 
 
 378. Sale under an illegal proceeding cannot affect valid mortgage. Stack- 
 pole V. Bobbins, N. S. vi. 572. 
 
 379. Sale under power while suit to foreclose is pending is fraudulent. 
 Surd V. Cone, N. S. iii. 632. 
 
 380. Mortgage — notice — judgment on mechanic's lien and a preference 
 of title of different sheriff's vendees. Bell v. Hate, 0. S. i. 698. 
 
 381. Purchaser under a decree of foreclosure of a mortgage is not entitled 
 to possession of premises until the execution of the master's deed to him. 
 Myers et al. v. Murray et al., N. S. xiv. 58. 
 
 382. A purchaser is not entitled to rents accruing on the foreclosure of 
 the mortgage, Mitchell v. Bartlett, N. S. viii. 441. 
 
 383. Purchase from vendee at foreclosure sale acquires mortgagor's title 
 had before giving mortgage. Butler v. Viele, N. S. v. 512. 
 
 XVIII. Of Chattel Mortgages. 
 
 384. To secure future debts not valid against a judgment-creditor. Bar- 
 nard y. Moore, N. S. iv. 315. 
 
 385. Continuance of lien after removal of property to another state. Cobb 
 V. Buswell, N. S. iv. 252. 
 
 386. If property is in possession of third person, immediate delivery not 
 necessary. Goodwin v. Kelly, N. S. iv. 188. 
 
 387. Case of application of the rule. Id. 
 
 388. Where the property in a chattel mortgage is correctly described; the 
 misdescription of the ground on which it is situated is immaterial. Spauld- 
 ing V. Mosier, N. S. xii. 325. 
 
 889. In such cases parol evidence is admissible to establish the identity of 
 the property. Id. 
 
 390. Parol evidence of its intention. McKinsfer v. Babcock et al.,1^. S. ii. 248. 
 
 391. Where goods left in hands of mortgagor to sell, the question of good 
 faith is for the jury. Ford et al. v. Williama, N. S. ii. 249. 
 
 392. Interest of mortgagor cannot be levied on, unless he has an absolute 
 right of possession for a definite period when the levy is made. Farrell v. 
 Eildreth, N. S. ii. 507. 
 
 393. Mortgagor may redeem at any time before actual foreclosure. Van 
 Brunt V. Wakelee, N. S. ii. 570. 
 
 394. A mortgage of personal property not in existence, or not owned at the 
 time by the mortgagor, is valid, where it is sufficiently defined as the product 
 of, or as incident to something inpresenti, so as to be presumed within the 
 minds of the parties to the mortgage. Morrill et al. v. Noyes, N. S. iii. 18. 
 
 395. Subject discussed. Note to Morrill v. Moyes, N. S. iii. 30. 
 
 396. A mortgage of future-acquired chattels is valid only when the prop- 
 erty mortgaged may be regarded as a part of, or accretion to, property in 
 actual or legal possession of the mortgagor at the time of making the mort- 
 gage. Wilson V. Seibert, N. S. viii. 608. 
 
 397. Such delivery must be an actual transfer. Morrow v. Reed, N. S. xii. 194. 
 
 398. Where the property is too bulky, it is sufiicient if mortgagor points it 
 out to the mortgagee, and thereby transfers it as the property described. Id. 
 
 399. A mortgage of personal property in and about a hotel, including 
 "things of every name and nature, situate and being in and about it," will 
 embrace a sail-boat upon the water near it, and used in connection with it. 
 Veazie v. Somerby, N. S. iii. 64. 
 
 400. Purchase at a sheriff's sale of property subject to a chattel mortgage, 
 and subsequently of the mortgage, is not necessarily a satisfaction of the 
 mortgage. Brown v. Rich, N. S. iii. 188. 
 
 401. Act of Congress as to recording mortgage of a vessel does not super- 
 sede state laws for same purpose, ^tna Ins. Co. v. Aldrich, N. S. iii. 570. 
 
 402. Mortgagee's title under chattel mortgage. Hall v. Sampson, N. S. vi. 
 381. 
 
 403. Eight of possession ordinarily passes thereby. Id. 
 
 404. Unless instrument provides, or law implies therefrom, that possession 
 is to remain with mortgagor. Id. 
 
 405. Mortgagor's interest liable to levy and sale. Id. 
 
 406. When mortgagor's right of possession terminates. Id. 
 
 407. Of personal chattels, attached to the freehold. Sheldon v. Edwards, 
 N. S. vi. 381. 
 
MORTGAGE. 699 
 
 408. Equity will not enjoin a mortgagee of chattels, the mortgage being 
 given by a corporation to secure the debt incurred on a sale of the chattels, 
 from selling them at the instance of a stockholder. Amerman -7, Wiles et al., 
 N. S. xiii. 194. 
 
 409. The mortgage being executed by the president and secretary, who 
 were the owners of two-thirds of the stock, complies with a statute requir- 
 ing the written assent of two-thirds of the stockholders. Id. 
 
 410. A mortgage of personal property enforcible in chancery may be 
 created by a verbal agreement. Shelbume v. Leidnger, N. S. xiv. 047. 
 
 411. Such agreement must be established by clear and convincing proof; 
 casual and indefinite expressions will not suffice. Id. 
 
 412. A transfer of notes of a third party, as collateral security for a note, 
 and the execution of a chattel mortgage with condition to collect or nego- 
 tiate fhein for the purpose of liquidating the original note, is a mortgage and 
 not a. pledge. Fraker v. Reeve et al., N. S. xiv. 707. 
 
 413. If the mortgagee sell the notes at auction he will not be liable for a 
 conversion. Id. 
 
 414. An action of tort will lie for property wrongfully converted in a 
 chattel mortgage. Matter of Hicks, N. S. x. 476. 
 
 415. Chattel mortgage not within the provision of the act authorizing 
 stamping of mortgages by collector. Vail v. Enapp, N. S. vii. 511. 
 
 416. Chattel mortgages in New York not within the provision of the act 
 authorizing stamping of mortgages are merely filed not recorded. Id. 
 
 417. Of personal property in Ohio — mortgagor to retain possession — 
 other creditors of mortgagor may levy upon the property mortgaged. Card 
 v. Vunder, 0. S. iv. 692. 
 
 418. Of personal property in Ohio with possession and a power of disposi- 
 tion in mortgagor, is void as against other creditors. Freeman v. Rawson, 0. 
 S. iv. 693. 
 
 419. Of store of goods, and mortgagor refuses to comply with his engage- 
 ment or deliver possession, replevin will lie. Boylea v. Rankin, 0. S. ii. 121. 
 
 420. A mortgage on all the stock in a certain store, and any additions that 
 may be made thereto, with an indorsement that the mortgagors having 
 moved to another store, the within mortgage shall cover all the original stock 
 and all additions, will give to the mortgagee a title to the stock in the second 
 Store at the time of the indorsement. Brown v. Thompson, N. S. xi. 599. 
 
 421. A mortgage of goods in a store, with a verbal agreement that mort- 
 gagor shall retain possession and sell them, is void as to creditors. Putnam 
 \. Osgood, N. S. xi. 662. 
 
 422. A mortgage on a canal-boat, or a copy thereof, by a statute of New 
 York, is required to be filed in the office of the auditor of the canal depart- 
 ment, and within thirty days preceding a year another copy is required to 
 be filed, or the mortgage shall be void against creditors and subsequent bonS, 
 Ude mortgages and purchasers. ' Eerrick v. King and Others, N. S. viii. 124. 
 
 423. A seal is not necessary to a mortgage of chattels under the laws of 
 Ohio. Gibson v. Warden, N. S. xii. 119. 
 
 424. Of chattels, containing power to sell — sale thereunder. Chamberlain 
 y. Martin, N. S. v. 190. 
 
 425. The written description in a mortgage of chattels must control. Hut- 
 ton V. Arnett, N. S. ix. 711. • 
 
 426. A chattel mortgage can be avoided for usury by a judgment-creditor 
 of the mortgagor. Carow v. Kelly, N. S. x. 600. 
 
 427. Under the laws of 1859 of Maine, the mortgagee of personal property 
 could not commence an action against the officer attaching such property 
 until he had given him forty eight hours' notice. Nichols v. Perry, 605. 
 
 428. The fact that the officer knew of the mortgage does not excuse want 
 of notice. Id. 
 
 429. The statute of the United States requiring conveyances and mort- 
 gages of vessels to be recovered, applies only to such as have been en- 
 rolled, registered, or licensed under the laws thereof. Veazie v. Somerby, N. 
 S. iii. 64. 
 
 430. The record of a mortgage or conveyance of a vessel must be made in 
 the district of the last registry and enrolment, though not the home port of 
 the vessel. Potter v. Fish, N. S. iii. 187. 
 
670 MOETMAIN— MUNICIPAL COEPOEATION. 
 
 MORTMAIN. 
 
 Statutes of mortmain not adopted in Vermont. Paige v. Beineberg, N. S. 
 vii. 697. 
 
 MOTIVE. 
 
 An act legal in itself is not aotionaWe an account of the motive which 
 induced it. Chatfield v. Wilson, 0. S. v. 528. 
 
 MUNICIPAL BONDS. See Munimpal Corpobation, VI; 
 
 1. Issued under special legislative authority to aid railroads, are taxahle 
 as public stocks. Hall v. Commissioners, N. S. v. 820. 
 
 2. County bonds issued under eighth chapter of New York Laws of 1864, 
 for purpose of paying bounties to United States recruits. People ex rel. Rose 
 V. Supervisors of Ididngaton, N. S. v. 60. 
 
 MUNICIPAL CORPORATION. See Countt, Constitutional Law, Corpokation. 
 I. Of the Powers and Liabilities Generally. 
 
 1. In all matters of general concern, such as taxation, or the suppressing 
 of insurrections, municipal corporations have no local right to act, indepen- 
 dent of the state. Park Commissioners y. Common Council, N. S. xiii. 524. 
 
 2. In objects and purposes peculiarly local, the state is no more concerned 
 than in the private concerns of its citizens. Id. 
 
 3. It is a fundamental principle in Michigan that the people of every town 
 and city are entitled to the benefits of local self-government. Id. 
 
 4. As to property held for its own private purposes, a city is to be regarded 
 as a natural person, and entitled to the like protection. Id. 
 
 5. The constitutional principle that no person shall be deprived of property 
 without due process of law, applies to artificial, as well as natural, persons, 
 and to municipal corporations. Id. 
 
 6. Equity will not restrain a city from assessing the property-owners for 
 the cost of paving a street, on the ground that it was not done in accordance 
 with the contract. Leibenstein v. City of Newark, N. S. xiii. 59. 
 
 7. Equity will not restrain erroneous assessment, unless it will cause irrepa- 
 rable injury, or lead to multiplicity of suits. Id. 
 
 8. That it would deprive complainant of his property ia not an irreparable 
 injury. Id. 
 
 9. If the corporation, in making streets, is to be regarded as the agent of 
 the landowners, they must bear the consequence of its negligence. Id. 
 
 10. If landowners permit the city to pay the contractors, they can have no 
 relief against the assessment. Id. 
 
 11. The afi'airs of a corporate body can be transacted only at a corporate 
 meeting. Their only existence is as a board,, and they can do no act except 
 as a board. Schumm v. Seymour, N. S. xiii. 331. 
 
 12. Public policy requires restrictive enactments to be rigidly enforced. Id. 
 
 13. Municipal corporations may hold property in trust for any purpose not 
 foreign to their institution. Sargent v. Cornish, N. S. xiv. 324. 
 
 14. A town can hold a sum of money in trust, to invest the income in the 
 purchase and display of United States flags. Id. 
 
 15. There is no distinction between a municipal corporation and towns or 
 counties, which enables a taxable inhabitant of the former to maintain an 
 action to restrain or avoid a corporate act not affecting his private interest, 
 as distinct from thSt of other inhabitants. Roosevelt v. Draper, N. S. i. 180. 
 
 16. The line of low water is the boundary line, and the jurisdiction of the 
 city follows the shore as it advances into the river. Luke v. Brooklyn, N. S. 
 iv. 444. 
 
 17. Power of New York Common Council to authorize extension of city 
 railroad. People v. R. R. Co., N. S. v. 571. 
 
 18. Liability of city for accident from collision with rope stretched across 
 street. Barber v. Oily, N. S. vi. 123. 
 
 19. Service in procuring legislation by personal influence not a legal con- 
 sideration. Frost V. Belmont, N. S. iii. 374. 
 
 20. A town cannot bring action for fraudulent pretence in obtaining a 
 judgment against it while such judgment is in full force. Millsborouah v. 
 NicholU, N. S. vi. 313. 
 
 21. A municipal corporation, through which a stream passes, is not bound 
 to keep it navigable. Winpenny v. Philadelphia, N. S. i. 640. 
 
MUNICIPAL COEPOEATION. 671 
 
 22. The payment of bounties to volunteers is for a public or municipal 
 purpose. Speer v. Blairsville, N. S. iv. 661. 
 
 23. The question whether a, town has been legally erected may bn tested 
 in an action in the nature of a quo warranto against one claiming to exercise 
 the office of supervisor of such town. The People v. Carpenter, N. S. i. 502. 
 
 24. In reference to all acts which a municipal corporation has power, in 
 any mode and by any agency, to perform, it may bind itself by those agents 
 whom it suffers to act for it, and in the modes which it sanctions by its own. 
 usages, unless such modes and agencies are prohibited by the charter. Cit}/ 
 of Memphis v. Brown, N. S. xi. 629. 
 
 25. Where the charter prescribes votes of stockholders, citizens, or direc- 
 tors, or other formalities, as conditions precedent to the performance of acts, 
 and such acts are performed without such formalities, third persons acting 
 in good faith may presume all has been done which the charter demanded, 
 and the corporation will not be suffered to prove its own negligence or wilful 
 dereliction to defraud innocent parties of their labor, property, or money. Id. 
 
 26. A municipal corporation created by legislative act is not dissolved by 
 its failure to elect officers. Welch v. St. Genevieve, N. S. x. 512. 
 
 27. In this country, officers do not, in the sense of the English books, con- 
 stitute an integral part of the corporation, but they are the mere agents or 
 servants of the corporate body. Id. 
 
 28. Municipal corporations cannot be dissolved by the courts for non-user 
 or misuser of their powers or franchises. Id. 
 
 29. Where a judgment existed against a municipal corporation, having no 
 property subject to sale, and whose duty it was to levy and collect a special 
 tax to pay the judgment, and where the corporation was without officers, and 
 would not, though having the power, supply itself with officers, the court 
 appointed its marshal to assess, levy, and collect the requisite tax ; but sus- 
 pended the order so as to allow the corporation to reorganize and itself to 
 collect the tax. Id. 
 
 30. The Ousting Ordinance passed by the Constitutional Convention of Mis- 
 souri and the General Town Incorporation Act of that state, construed and 
 applied. Id. 
 
 31. An Act of Assembly providing that before the street railway shall be 
 laid, the consent of City Councils shall be obtained. City Councils declined 
 by ordinance to give the consent. Held, the power given by the Legislature 
 was exhausted, and the Councils could not afterwards consent. JHusser v. 
 Passenger R. R. Co., 0. S. vii. 284. 
 
 32. Municipal corporation creating a loan for the erection or extension of 
 its gas-works are bound by the terms of the ordinance, and cannot take pos- 
 session of the works except, &o. Saving Fund -v. The City of Philadelphia, 0. 
 S. iv. 670. 
 
 33. A city in the supply of gas acts as a private corporation, &c. Id. 
 
 34. Construction of statute providing how appropriations shall be expended, 
 Bee Board of Education v. Cheney, 0. S. iv. 631. 
 
 35. Damages for loss of profits may be recovered. T^e City v. Evans, 0. S. 
 iv. 699. 
 
 36. Charter good until judicially declared forfeited, and cannot be attacked 
 collaterally for non-user. Harris v. Nesbit, 0. S. iii. 56. 
 
 37. Has no right to divert the water from a stream to the injury of other 
 riparian owners. Stein v. Burden, 0. S. iii. 55. 
 
 38. May erect public buildings, rent rooms therein for other than public 
 purposes, and this is not a breach of the condition of a deed for the ground 
 that it shall only be used for municipal purposes. See French v. Quincy, N. 
 S. i. 383. 
 
 39. Powers to levy taxes to pay judgments discussed. Note to United States 
 V. Burlington, N. S. ii. 398. 
 
 40. The trustees of a village are incompetent to make a contract. by which 
 the governing authority abdicates any of its legislative powers, or^by which 
 it is precluded in the future from legislating in regard to any emergencies 
 that may arise. Oale y. Kalamazoo, N. S. xi. 286. 
 
 41. The trustees upon whom are conferred the legislative powers are in- 
 vested with no discretion to circumscribe their limits, or diminish their 
 efficiency, but must transmit them unimpairedto their successors. Id. 
 
672 MUNICIPAL CORPOEATION. 
 
 42. Warrants issued by a municipal corporation in payment of a judgment 
 at the rate of one dollar in warrants for every seventy-five cents due on the 
 judgment, are tainted with usury. Clarh v. CKty of Des Moines, N. S. vi. 146. 
 
 43. It may be doubted whether a municipal corporation is bound by the 
 action of its council in agreeing to pay a sum clearly, distinctly, and ascer- 
 tainably greater than is legally due : arguendo, per Dillon, J. Id. 
 
 44. No municipal corporation can erect a toll-bridge and levy and collect 
 tolls, unless authorized by the law of the state. Id. 
 
 45. Extent of authority of. Note to Clark v. Oity of Dea Moinea, N. S. vi. 161. 
 
 46. Agents, officers, or even a city council of a municipal corporation, 
 cannot bind the corporation by any act which transcends their lawful or 
 legitimate powers. And this rule applies to the issue of negotiable, as well 
 as non.'negotiable evidences of debt. Clark v. City of Dea Moines, N. S. vi. 146. 
 
 47. The duties and power.? of the officers of a municipal corporation are 
 prescribed by the statute, and every person dealing with them as such may 
 know, and is charged with Isnowledge of the nature of these duties and the 
 extent of these powers. Id, 
 
 48. A corporation may set up a plea of ultra virea, or its own want of power 
 under its charter or constituent statute to enter into a given contract, or to 
 do a given act, in excess of its corporate power and authority. Id. . 
 
 49. Municipal corporations have and can exercise only such powers as are 
 expressly granted, and such incidental ones as are necessary to make these 
 powers available, and are essential to effectuate the purposes of the corpora- 
 tion ; and these powers are strictly construed. Id. 
 
 50. When the officers of a city have no express power, to issue for current, 
 ordinary debts, negotiable paper, which shall be free from equities in the 
 hands of purchasers, and it is not necessary as an incident to those granted, 
 or to carry out the purposes and objects of the corporation, it cannot be held 
 to exist by implication. Id. 
 
 51 . One using a wharf cannot resist payment of wharfage on the ground 
 that it was not properly built, though a mandamus might lie to compel the 
 borough to provide proper facilities, or an injunction to prevent taking 
 wharfage until the wharf be properly built. Freacott v. Borough of Du- 
 guesne, N. S. iv. 640. 
 
 52. Where suit is brought in the name of an individual for the use of a 
 borough, and, on trial, his name is stricken off, he is a competent witness. 
 Id. 
 
 53. In a grant "to the inhabitants of a town, to be held by them as a body 
 politic and corporate, and to their successors for ever," the title vests in the 
 town as a corporation. New Market v. Smart, N. S. iv. 390. 
 
 54. In the case of such grant made in 1803, to the use of the minister 
 then settled in the town of New Market, as long as he should be the settled 
 Congregational minister there ; and then to be and remain for the use of the 
 minister of that persuasion that shall be settled in that town, the title vests 
 in the town in its parochial, and not in its municipal, character. Id. 
 
 55. Where'the voluntary religious society, over which the minister referred 
 to was settled, afterwards became a body corporate, and the town was no 
 longer charged with any parochial duties in relation to such society ; the 
 legal, as well as beneficial, estate in the lands so granted passed to that 
 society, as the successor to the parochial rights and duties formerly belong- 
 ing to the town. Id. 
 
 56. An act appointing commissioners to erect public buildings, &c., for a 
 city does not authorize them to bind the city, without the latter's assent to 
 the act. Van Valkenburgh v. New York, N. S. iv. 437. 
 
 57. City is not liable for money borrowed and converted by its treasurer 
 in its name, though it had authorized him to borrow money for a specific 
 purpose, and he had done so. Lowell Savings Hank v. Winchester, N. S. iv. 119. 
 
 58. Must so exercise its authority as not to endanger Uvea or limbs of 
 inhabitants. Gty of Joliet v. Verley, N. S. v. 445. 
 
 59. Liability of, to private person, by obstruction of the flow of water of 
 a stream, from exercise of municipal rights. Wheeler v. CH,ty, N. S. v. 575. 
 
 60. Towns, like other corporations, have no powers, except such as are 
 expressly or impliedly granted to them. by the legislative power of the state. 
 Booth V. Woodbury, N. S. v. 202. 
 
MUNICIPAL CORPOEATION. 673 
 
 61. In the absence of authority so conferred, a town has no power to 
 appropriate money for gratuities to men drafted for the military service of 
 the United States. Booth v. Woodbury, N. S. v. 202. 
 
 62. But the legislature has power to authorize a town to confirm such action 
 by another -vote on the subject, and such confirmatory action of the town will 
 be valid. Id. 
 
 63. Powers of, are limited. Note to Id. 
 
 64. Cannot subscribe for stoolcin public improvement, unless authorized by 
 legislature. Extent of this authority, and how conferred. Thomson v. Lee 
 Co., N. S. V. 571. 
 
 65. Having right to pui-ohase railway, cannot maintain bill to prevent 
 increase of fares. Cambridge v. E. R. Co., N. S. v. 317. 
 
 66. Proceedings in the construction of public works by commissioners. 
 People V. Yonkers, N. S. iii. 124. 
 
 67. Election of clerk. Duty of members of the council to be present at the 
 election. Eifeot of absentees leaving board without a quorum. Kimlall v. 
 Marshall, N. S. iii. 125. 
 
 68. Subscriptions to railroad stock are constitutional. Qclpcke v. Dubuque, 
 N. S. iii. 629. 
 
 69. Not liable in foreign attachment for bounty voted to volunteer. Brown 
 T. Heath, N. S. iii. 125. 
 
 70. Cannot be made garnishee in attachment. Burnham v. Fond du-Lac, 
 N. S. iii. 509. 
 
 71. Cannot appropriate money to individuals for expenses in procuring its 
 charter. Frost v. Belmont, N. S. iii. 374. 
 
 72. Courts will not prevent the extension of boundaries, but will restrain 
 taxation within the line where it ceases to be beneficial to the proprietor in 
 a municipal point of view. Fulton v. Davenport, N. S. iv. 444. 
 
 73. When property near a city becomes taxable by it. Id. 
 
 74. Conveyance of land bounded by a street on the water's edge — accre- 
 tions to the shore — dedication to public use. Banks v. Ogden, N. S. iv. 509. 
 
 75. Ordinance prohibiting the running of swine valid. Com. v. Curtis, N. S. 
 iv. 509. 
 
 76. Right to lay out a town-way upon lands of citizens, wholly for access 
 by public, to points of pleasing natural scenery. Higginson v. Nahant, N. S. 
 vi. 187. 
 
 77. Has no greater power than natural persons, except through an exer- 
 cise of the right of eminent domain. Pettigrew v. Evansville, N. S. ix. 126. 
 
 78. Ejectment cannot be maintained against a municipal corporation by 
 proof of use of the property as a public street. Cowenhoven -7. Brooklyn, N. 
 S. ii. 506. 
 
 79. The fee of streets in a city resides in the city corporation in trust. 
 People V. Kerr, N. S. ii. 377. 
 
 80. A grant of special powers to a corporation will not be enlai-ged by 
 intendment. Weil v. Eicord, N. S. xiii. 60. 
 
 81. Courts will not disturb municipal bodies in the exercise of their police 
 powers, when they are exercised for the general welfare. Id. 
 
 82. Where there is no restraining clause in the charter, the corporation 
 may dispose of any property which it has the right to acquire. The Town 
 of Newark v. Brady, O. S. iv. 638. 
 
 83. What is a sale of stock at its par value. Id. 
 
 84. The mayor, city attorney, and treasurer of the corporation, having 
 ordinarily been suifered to make similar agreements, may engage attorneys 
 to collect demands due the municipality, when its interests demand such 
 service. City of Memphis v. Brown, N. S. xi. 629. 
 
 85. If the service is in a suit, in which the city is a party, or in which it ia 
 interested, and is performed with the knowledge of the officials, the city is 
 liable for the services in the same manner as u, natural person. Judgments 
 holding the contrary depend Upon statutes which expressly prohibit such 
 retainers. Id. 
 
 II. LlABIIITY or FOR THE NEGLIGENCE OE ITS SeKVANTS AND CONTRACTOKS, 
 
 86. Municipal corporation, when liable for injury done to person or prop- 
 erty through negligence of street contractor, &c. The City v. Stone, 0. S. 
 iv. 628. 
 
 43 
 
674 MUNICIPAL CORPOEATION. 
 
 87. Neither relation of master and servant, nor principal and agent, exists 
 between a town and its health or police officers. Mitchell t. Rockland, N. S. 
 Ti. 189. 
 
 88. Town not liable for their unlawful or negligent acts. Id. 
 
 89. As a general rule, only liable to suit, when given by statute. Id. 
 
 90. Seems, cannot ratify the negligent, careless, or tortious acts of its 
 officers. Id. 
 
 91. Evidence of knowledge of negligent acts and approval. Id. 
 
 92. Liability for negligence of its contractors. Note to Painter Y.PitlsbuTgh, 
 N. S. iii. 358. 
 
 III. Liability of fob Destruction of Propebtt et a Mob. 
 
 93. A town is liable for the destruction of property by a mob, where it 
 could or ought to have prevented it, unless such destruction is caused by the 
 improper conduct of the plaintiff. Chadboume v. New Castle, 517. 
 
 94. Liability for injuries by mob. The plaintiff sued the city, in its cor- 
 porate capacity, for an injury to her dwelling-house, situated within the city 
 limits, committed by a mob, who partially destroyed the property. She al- 
 leged in her declaration that the officers of the corporation had knowledge 
 of the existence and intentions of the mob, and negligently and wilfully failed 
 and refused to disperse it, or to render her any assistance to protect her 
 property from its illegal depredations. It was decided that if the plaintiff 
 had been injured by the failure of the officers to perform their duty, unless 
 the delinquency was authorized by the corporation, they were personally 
 liable, and she should not look to the city for redress. ' Prather y. City of 
 Lexington, 0. S. i. 444. 
 
 IV. Powers, Duties, and Jtimsdiotion as to its Streets, Highways, and 
 
 Sewees. , 
 
 95. Where the charter of a city declares that when the grade of a street 
 is changed, all damage shall be paid by the city, the right to such damage is 
 purely statutory. Stadler v. Milwaukee, N. S. xiii. 652. 
 
 96. Damages can only be recovered for injuries to the land or building 
 itself, and not for injury to the trade carried on upon the premises. Id. 
 
 97. Where the charter of a city authorizes councils to improve a street at 
 expense of lot-owners, only upon presentation of a petition signed by a cer- 
 tain proportion of such owners, the presentation of such petition is essential 
 to give councils jurisdiction. Oanfieldv. Smith, N. S. xiii. 780. 
 
 98. Where the improvement was made without such petition, a lot-owner 
 whose property was sold for non-payment of the assessment, may set aside 
 the sale. Id. 
 
 99. A lot-owner will not be estopped from alleging want of power in the 
 councils, because having notice that the work was ordered, he did not inter- 
 pose until it was done. Id. 
 
 100. The provision in the Jersey City charter of 1871, that a lot shall be 
 assessed for its share of the labor and materials for the intersections, is in 
 total disregard of the doctrine that assessments shall not exceed the benefit 
 to each lot, and an assessment made under it must be set aside. Van Tassal 
 V. Mayor and Aldermen 'of Jersey City, N. S. xiv. 258. 
 
 101. So, also, an assessment made under the laws of 1873, for excavating 
 rock, is illegal, if made against the whole frontage. Id. 
 
 102. The cost of flagging a sidewalk may be made against the whole front- 
 age, if no grading of the street is included. Id. 
 
 103. Municipal corporation having care of wharf are answerable for inju- 
 ries to vessels lying there. Grier v. City of Pittsburgh, 0. S. ii. 189. 
 
 104. A projection over a sidewalk in a city, which is dangerous to persons 
 using the sidewalk, is a nuisance. Grove v. City of Fort Wayne, N. S. xiv. 59. 
 
 105. The city has power under the statutes to abate such nuisance, and if 
 it fail to do so will be liable for injuries resulting therefrom. Id. 
 
 106. The power of a city over its streets and the right of the public to 
 them, extends upward indefinitely. Id. 
 
 107. It must be clearly shown that injustice has been done before an as- 
 sessment made by commissioners for street improvements will be set aside 
 upon the facts. Pudney et al. v. Village of Passaic, N. S. xiii. 395. 
 
 108. There is no rule condemning assessments by the lineal feet of front- 
 age. Id. 
 
MUNICIPAL CORPOEATION. 675 
 
 109. Municipal authorities have power to bind property-owners for street 
 improvements, but the owners are entitled to have the contracts performed 
 substantially according to their terms. Schumm v. Seymour, N. S. xiii. 331. 
 
 110. Legislature has unlimited power over public rights in highways, in- 
 cluding streets in a city. People v. Kerr, N. S. ii. 877. 
 
 111. A municipal corporadon has the right to raise its streets and bridge 
 them. AUentown v. Kramer, N. S. xiii. 527. 
 
 112. A municipality exercising its lawful authority is not liable for col- 
 lateral injuries. Id. 
 
 113. But when a street is once opened and paved, and has thus become a 
 part of the public highways of the city, the repaving of it, either with a new 
 and different pavement, or by repairing the old one, is a part of the general 
 duty of the corporation, and cannot be paid for by assessments on the ad- 
 joining properties. Hammett v. City of Philadelphia, N. S. viii. 411. 
 
 114. Is bound to keep the pavement in front of the market stalls in repair. 
 City of Savannah v. Oullens, N. S. viii. 314. 
 
 115. Discretion as to acceptance of streets is exclusively for the corpora- 
 tion. Pope V. Union, N. S. vii. 701. 
 
 116. The building of sidewalks is, ordinarily, a legitimate municipal ob- 
 ject. Clark V. City of Des Moines, N. S. vi. 146. 
 
 117. Duty of, to open and repair streets, sidewalks, and bridges. City of 
 Joliet V. Verity, N. S. v. 445. 
 
 118. Report of commissioners on altering street. People v. Brooklyn, N. S. 
 vii. 317. 
 
 119. It is a power implied in every grant of municipal authority to dig up 
 the streets and highways, for the purpose of securing drainage and sower- 
 age essential and convenient to the public health. The North Pennsylvania R, 
 R. Co. v. Stone, 0. S. viii. 112. 
 
 120. The city of Philadelphia possesses this power, by express legislative en- 
 actment as to Front street, both by the legislation in regard to the districts 
 of Northern Liberties and Kensington, and by the Consolidation Act. Id. 
 
 121. A railroad corporation cannot, under a grant of franchises to con- 
 struct and maintain a railroad track in a city street or highway, have the 
 exclusive use of that street, and oust jurisdiction for municipal purposes ; 
 and, therefore, an injunction to restrain an agent of the city — a city con- 
 tractor — who proposes to take up temporarily a portion of the railway 
 track, in order to build a culvert in such public street, will be refused. Id. 
 
 122. A municipal corporation is not liable in a civil action to a private 
 property-owner, for failure to provide sufficient sewerage to drain his lot. 
 Mills v. Brooklyn, N. S. v. 33. 
 
 123. The public duty to provide sewerage and drainage for the city in the 
 first place, is quasi judicial, and the exercise of discretion as to the manner 
 of performing it, is to be distinguished from a neglect of duty, by which a 
 sewer is so badly constructed or allowed to get so out of repair as to become 
 a nuisance, for which the corporation would be responsible. Id. 
 
 124. Duties and liabilities in respect to sewers. Barton v. Syracuse, N. S. 
 ii. 314. 
 
 125. Liability of town under the statutes of Massachusetts for injury to 
 person on the sidewalk. Day v. Milford, N. S. ii. 509. 
 
 126. The grading, paving, &c., of a street by the city is not evidence of a 
 claim of title, but only of a right of way. Cowenhoven v. Brooklyn, N. S. ii. 
 606. 
 
 127. Where a city constructs a sewer, it is not bound to construct such a 
 one as will carry off all the drainage under all circumstances. Atchison v. 
 Challis, N. S. xi. 775. 
 
 128. A large vehicle used as a daguerrian saloon, standing partly within 
 the limits of a highway, but outside of and several feet from the travelled 
 path, is not a defect in the highway, which will entitle a traveller to recover 
 against a town damages for the injuries sustained by him, if his horse, while 
 driven by himself, is frightened thereby, and becomes unmanageable, and 
 runs for some distance and upon an embankment, so that the carriage is 
 broken, and himself thrown upon the ground and injured. Keith v. Inhabi- 
 tants of Easton, N. S. i. 382. 
 
676 MUNICIPAL CORPORATIOlSr. 
 
 V. Liability of for Nf.gligenoe — Defective Highwats, and Hekein of' Conse- 
 quential Damages kesulting from Opening and Gbading Streets, &c. 
 See Supra II. 
 
 129. Municipal corporation liable in case for injury resulting from want 
 of repair of streets and bridges. Smoot v. Mayor, 0. S. iii. 55. 
 
 130. Is responsible for damages resulting from the manner of performing 
 a ministerial duty, but not if the duty is of a judicial nature. Kavanagh v. 
 Brooklyn, N. S. ii. 630. 
 
 131. Hence it is not liable for injuries resulting from the improTement of 
 streets. Id. 
 
 132. Is liable for neglect of its officers in not keeping its streets and 
 bridges in repair. McLaughlin t. City of Corry, N. S. xiv. 757. 
 
 188. If the authorities are negligent in allowing an obstruction in a public 
 highway, they are liable to a person injured thereby. Id. 
 
 184. A city is liable for injuries resulting from snow and ice allowed to 
 accumulate on its sidewalks. Id. 
 
 135. The measure of damages is the direct expenses by reason of the in- 
 jury, the inconvenience, pain, pecuniary loss, and loss of earning power of 
 party injured. Id. 
 
 186. What plaintiff received as wages would not go in mitigation of the 
 damages. Id. 
 
 187. A verdict and judgment against a city, in an action for personal in- 
 juries occasioned by a defect in a highway, are conclusive evidence in a sub- 
 sequent action by the city against the tenant of the land, who had notice of 
 the pendency of the former suit. Boston ■v.Worthingion, N. S. iii. 186. 
 
 138. Are not liable for consequential damages resulting from laying out 
 or opening and grading streets, wher.e the work is done with proper care and 
 without malice. Oity of Delphi v. Evans, N. S. xii. 326. 
 
 189. A municipal corporation is not liable, in a private action for damnges, 
 for injuries caused by neglect to keep its streets in repair. Detroit v. Blakeby, 
 N. S. ix. 670. 
 
 140. The case founded on mere neglect to repair, and on acts of positive 
 misfeasance, reviewed and distinguished by Campbell, C. J. Id. 
 
 141. Irregularity or wantof authority in establishing a street, no defence 
 in action for negligence against, for want of care thereof. Mayor v. Sheffield, 
 N. S.vi. 441. 
 
 142. When liable for injury from defective walk. Dewey y. Detroit, N. S.vi. 638. 
 148. Whether a municipal corporation, acting under lawful and undisputed 
 
 powers, may be liable for consequential damages to property-owners, dis- 
 cussed. Note to Mills v. Brooklyn, N. S. v. 42. 
 
 144. Bound to keep a common way for travel in a safe condition. Bum- 
 ham V. City, N. S. v. 571. 
 
 145. Where fact of road being slippery from ice upon it is not a defect for 
 which town will be liable. Stanton v. Springfield, N. S. vi. 570. 
 
 146. The test in oases of injury from defects in highway. Walker v. Westfield, 
 N. S. iii. 570. 
 
 147. A city is not responsible for the negligence of its officers where the 
 law has imposed no duty in respect to the subject-matter. Elliott y.City of 
 Philadelphia, N. S. xiv. 258. 
 
 148. In order to charge a city for negligence the law must have imposed a 
 duty on it, so as to make the neglect culpable. Id. 
 
 149. The officers of a oily are quasi civil officers of the government. Id. 
 
 150. Corporation liable for tort in keeping vicious dog. Stiles v. Cardiff Co 
 N. S. iv. 315. 
 
 151. The Federal courts have jurisdiction to issue mandamus to a munici- 
 pal corporation. United States ex rel. Learned v. Burlington, N. S. ii. 394. 
 
 152. A city is liable for neglecting to keep its streets safe and convenient 
 for travel. Watson v. Tripp, N. S. xiv. 896. 
 
 153. It cannot divest itself of this duty unless by statute. Id. 
 
 154. A contract with a railway company that the company shall keep the 
 streets in order, and be liable for any injury for neglect, will not exempt the 
 oity. Id. ' 
 
 155. Persons using a defective way for play only cannot sue the town for 
 negligence. Blodgett v. Boston, N. S. iv. 189. 
 
MUNICIPAL CORPOEATIOK 677 
 
 156. The liability of a city for injuries from a defective sidewallc is no 
 longer open for discussion. Colby v. Oity of Beaver Dam, N. S. xiii. 778. 
 
 157. City is bound to repair any defect wliich endangers the safety of 
 travellers. Id. 
 
 158. A city will be liable to a person injured from ice or snow remainino' 
 on the sidewalk. Corlc v. Milwaukee, N. S. ix. 263. 
 
 159. A city not liable for defect in highway that has suddenly become deti- 
 cient unless it had notice. Ward v. Town Jefferson, N. S. ix. 203. 
 
 160. A municipal corporation is liable for injuries resulting from the 
 obstructing of a street. Mayor, ^c.tt. Holmes, N. S. xiii. ~l?0. 
 
 161. Any object in or near which obstructs the travel constitutes a defect 
 in the highway. Sewison v. JVeio Haven, N. S. vii. 777. 
 
 102. Any object which does not come in collision, though it be of a nature 
 to frighten horses, is not a defect in highway. Kinysbury v. Dedkam, N. S. 
 vii. 61. 
 
 163. A city is not liable for damages done by surface water running down 
 new street. Town of Union v. Durkes, N. S. xiv. 708. 
 
 1G4. Unless such water is drawn from a natural watercourse. Id. 
 VI. Power to Borrow Monet, Issue Notes and Bonds, and Herein or Sub- 
 scriptions TO Railroad Stock. 
 
 165. No special act and no express provision in a charter is required to 
 enable a city to borrow money for purposes clearly municipal. Mills v. 
 Gleason, 0. S. viii. 693. 
 
 166. The kind and character of irregularities in tax assessments which 
 invalidate them. Id. 
 
 167. The power of a municipal corporation to borrow money is entirely 
 distinct from those powers bestowed upon it for public purposes, and per- 
 taining to its functions as a local government, exercising a part of the sove- 
 reignty of the state. De Voss v. Gity of Richmond, N. S. vii. 589. 
 
 168. In the exercise of a power to borrow money, a municipal corporation, 
 quoad hoc, is to be treated as a private person or an ordinary trading cor- 
 poration, and will be held to the same degree of responsibility for the acta 
 of lie officers and agents. Id. 
 
 169. Power in a charter, to borrow money for any public purpose, is valid. 
 Mitchell V. Burlington, N. S. vi. 638. 
 
 170. Construction of a plank-road is a public purpose. Id. 
 
 171. A municipal corporation has no power to lend its credit or make its 
 accommodation paper for the benefit of citizens, to enable them to execute 
 private enterprises. Clark v. City of Des Moines, N. S. vi. 146. 
 
 172. The issue of small notes by the city of Richmond, in 1861, was in 
 violation of the laws of the state, and such notes were void. Thomas v. City 
 of Richmond, N. S. xi. 131. 
 
 173. Where it is against public policy, as well as express Law for a person 
 or body corporate to issue small bills as currency, it is certainly not one of 
 the implied powers of a municipal corporation. Id. 
 
 174. The Acts of 1862 of the so-called legislature of Virginia could not 
 make such notes valid. Id. 
 
 175. Where a plaintiff is not in pari delicto with the defendant, actions are 
 sustained to recover money received for obligations of the defendant, though 
 the obligations themselves cannot be sued on. Id. 
 
 176. This rule does not apply in the case of municipal corporations issuing 
 small bills as currency. Id. 
 
 177. A municipal, like a private corporation, may, in the ordinary course 
 of its government, and in the conduct of improvements it is its duty to, exe- 
 cute, make promissory notes, bonds, guarantees, and all other agreements 
 necessary or convenient for the economical and proper financial manage- 
 ment of its affairs as fully as a natural person. City of Memphis v. Brown, 
 N. S. xl. 629. 
 
 178. Where the proceeds of bonds sold by a city in anticipation of street 
 improvements have been used in the meantime, the interest cannot be in- 
 cluded in assessing the expenses against the landowners. Baker et al. v. City 
 of Elizabeth, N. S. xiv. 258. 
 
 179. If the bonds are sold by legislative authority at less than par, the 
 discount can be included. Id, 
 
678 MUNICIPAL CORPORATION. 
 
 180. Where a town issues bonds to which coupons are attache?, and ac- 
 knowledges in the bond that the town is indebted to bearer, it may be sued 
 on the coupons alone. Town of Queensburff v. Culver, N. S. xiii. B62. 
 
 181. The liability of the town is not taken away by the fact that the legis- 
 lature has directed a special mode of raising the money to pay the bonds and 
 iiiterest. Id. 
 
 182. Where title of drawee of city warrant to the money is disputed 
 mayor cannot be compelled by a writ of mandamus to sign warrant. People 
 V. Booth, N. S. vii. 316. 
 
 183. Circuit court of U. S. may issue mandamus to county officer tg levy tax 
 to pay county bonds, though state court has enjoined such officer from making 
 the levy, lieggs v. Johnson ^ Co., N. S. rii. 572. 
 
 184. The fact that the bonds were negotiable, and purchased for ralue 
 without notice of the defect, does not, under such circumstances, aid the 
 plaintiff. Gould v. The Town of Sterling, N. S. i. 290. 
 
 185. Where a city issues its registered bonds, and iuTites the public to deal 
 upon the faith of them as the ultimate evidence of title, it cannot be heard 
 to gainsay their validity in the hands of a bona, fide holder, although in the 
 issuing of the bonds the agents of the city violated their instructions. De 
 Voss V. Oity of Richmond, N. S. vii. 589. 
 
 186. Therefore the city of Kichmond was estopped to deny the validity of 
 a registered bond regularly transferred and in the hands of a bonA fide pur- 
 chaser, even though such bond was issued by its transfer officer in disregard 
 of instructions to make a certain recital on the face of the bond, which if 
 made would have notified the purchaser of the facts creating the alleged in- 
 validity, and this because, by its ordinances, the city had declared that the 
 delivery of a registered bond, with a power of transfer, should operate to 
 pass the complete title, both at law and in equity, to a bon& fide purchaser ; 
 saving, that all payments by the city to the registered owner should be 
 deemed valid. Id. 
 
 187. Remedy to enforce payment of municipal bonds. PeopU ex rel. Fied- 
 ler V. Mead et al., N. S. ii. 249. 
 
 188. How bonds issued by towns on their own credit; to be authorized. 
 People V. Supermsors of I/imngston, N. S. v. 60. 
 
 189. How such county bonds are to be assessed and paid. Id. 
 
 190. A county issuing bonds under authority of an act of legislature, re- 
 ferred to on the face of the bonds, is bound to pay them in the hands of bonS 
 fide holders for value, without regard to the restrictions to their issue, in the 
 statute. Mercer Co. v. Hacket, ^c, N. S. iv. 114. 
 
 191. Bonds payable to bearer, though under seal, are negotiable instrn- 
 mencs. Id., 115. 
 
 192. If sold below par, in violation of the statute authorizing their issue, 
 the county may compel the holder to receive in satisfaction the arnouut paid 
 by first purchaser with interest. County v. Brinton, N. S. iv. 444. 
 
 193. Municipal bonds, valid when issued, cannot be invalidated by subse- 
 quent judicial exposition. Mitchell v. Burlington, N. S. v. 638. 
 
 194. The assignee of warrants drawn by the officers of a municipal cor- 
 poration on the treasury thereof, is bound, at his peril, to ascertain the 
 nature and extent of the powers of such officers aud of such corporation. 
 Clark V. City of Des Moines, N. S. vi. 146. 
 
 195. The want of corporate power or the want of authority in the munic- 
 ipal officers, cannot be supplied by their unauthorized action or representa- 
 tions. Id. 
 
 196. Where the corporation issues its bonds with the interest payable semi- 
 annually, when by law it was only authorized to make the interest payable 
 annually; the person who contracts to redeem such bonds cannot avoid his 
 contract by setting that up as a defence. The Town of Newark y. Brady 0. S. 
 iv. 638. 
 
 197. The holder of a city bond issued to a plank-road company or bearer 
 issued in aid of the construction of the road in pursuance of a legislative 
 act, is not bound to examine the records of the city to ascertain whether the 
 
 - resolution of the council for issuing the bonds corresponds with the resolu- 
 tion recited in the bonds. That recital binds the city. Mygatt v The City 
 of Green Bay, 0. S. viii. 271. ' •' 
 
 198. Where a city issues its bonds in aid of a railroad company without 
 
MUNICIPAL CORPOEATION, 679 
 
 authority of law, and receives therefore the bonds of the company, secured 
 with other bonds by a mortgage upon its road, the city is not such alien 
 creditor for a valuable consideration ns to entitle it to claim a share of the 
 proceeds of the sale of the mortgaged premises made in ratification of the 
 mortgage. Smith v. Superior and Milwaukee R. R. Co.. 0. S. ix. 655. 
 
 199. But the city having received securities collateral to the company's 
 bonds, a judirment-crcditor of the company cannot, by bill in equity, require 
 (he city to surrender these securities until its rights are determined by judi- 
 cial proceedings, or it be released. Id 
 
 '100. Alavf of Pennsylvania, declaring that " the city corporations of Pitts- 
 burgli and Allegheny tire authorized to subscribe to the Ohio and Pennsyl- 
 vania Ilailroad Company, each not exceeding $200,000 . . . and to vote at 
 elections in the same manner as individual stdoliholders," and, also, that 
 " the certificate of loan heretofore issued, or which shall hereafter be issued 
 by iheni, in payment of any subscription to the Ohio and Pennsylvania Kail- 
 ro.id Company, are exempted from taxation," &c., justified the issue of the 
 >onds by the city of Allegheny for $200,000 by her councils, with coupons 
 attached, for her first subscription, and said bonds and coupons are valid. 
 Aiiiey V. Allegheny City, 0. S. ix. 338. 
 
 201. A law of Pennsylvania declaring that "the city of Allegheny is author- 
 ized to increase its subscription to the Ohio and Pennsylvania Eailroad 
 Company to an amount not exceeding its first subscription, upon the terms, 
 &c., prescribed to said subscription; provided no bonds for the payment of 
 stock subscribed as aforesaid be issued for less than $100," &o., justified the 
 councils of Allegheny in issuing bonds, with coupons, for her second sub- 
 scription to said road of $200,000, and the said bonds and coupons are 
 valid. Id. 
 
 202. The law of Pennsylvania of 8th May, 1850, declaring that " it shall 
 not be lawful for the councils of Allegheny, directly or indirectly, or by 
 bonds, certificates of loan, or indebtedness of said cily in a sum, which 
 added to the existing debt, shall together exceed $500,000, exclusive of the 
 subscription of $200,000 to the Ohio and Pennsylvania Eailroad," was not 
 intended to apply as a prohibition to the legislature, in the exercise of its 
 power to authorize the city to incur a debt beyond $500,000, but only to the 
 councils to restrict their general power to incur debts to the sum of $500,000. 
 Id. 
 
 203. The eighth section of the charter of Allegheny City declaring "that 
 so many of them (the laws, ordinances, &c., in the seventh section) as shall 
 not be published in one public newspaper, &c., within fifteen days after their 
 passage," &c., and " recorded in the office of Kecorder of Deeds, within thirty 
 days, &c., . . . shall be null and void," does not apply to the ordinance au- 
 thorizing the subscription and issue of bonds under the laws above mentioned, 
 and the ordinance was no^ null and void for want of such recording. Id. 
 
 204. The Maysville and Lexington Railroad Company was chartered on 
 the 4th of March, 1850; by the terms of the charter the city of Maysville 
 was authorized to subscribe stock, and to become a stockholder to the amount 
 of $150,000; and the charter further provided that it should be lawful for 
 the city to raise the amount of subscription by a tax on the real and per- 
 sonal estate of the said city, or by borrowing the amount, and made the sum 
 so borrowed or raised by tax, payable in the way and on the terms deemed 
 most advisable by the mayor, &c., and also made provision for the payment of 
 the interest on the amounts borrowed. It further provided, that all taxes 
 laid to pay either the principal or interest should be pledged and appro- 
 priated to that purpose, and to no other. By virtue of this lavr an election 
 was held, and the vote resulted unanimously in favor of the subscription of 
 $150,000 by the city, and it was accordingly made, and the city became the 
 chief stockholder of the said railroad, and started and controlled its organi- 
 zation and the election of its officers. By reason of this subscription, and by 
 the efforts of the citizens of Maysville, the counties of Mason, Benton, and 
 Fayette voted for, and took large subscriptions to stock, as well as the indi- 
 vidual citizens residing in those counties. On the 17th of February, 1851, 
 the legislature amended the company's charter and authorized the cities 
 and counties that should subscribe under the original act to execute 
 bonds payable to the president and directors of the company, and authorized 
 
680 MUNICIPAL CORPORATION. 
 
 and required the county courts and city councils to levy and collect an 
 amount in money upon the real and personal property of said cities and 
 counties sufficient, annually, to pay off the interest on said bonds, and pointed 
 out the mode of levy and collection. The city council of Maysville, under 
 this amendment, ordered one hundred and fifty bonds, for $1000 each, to be 
 executed by the president of the city council, under the seal of the city, and 
 issued them to the railroad company, who accepted them in consideration of 
 twenty shares of the capital stock of the company for each bond. The plain- 
 tiffs became, in good faith, holders of these bonds, and the interest upon them 
 was regularly paid untiljuly, 1857. Held, that notwithstanding there might 
 have been some technical or formal non-compliance with the provisions of 
 acts, there was a substantial compliance, and that it was the duty of the 
 authorities of Maysville to make provision for the regular payment of the 
 interest on these bonds, and the ultimate redemption of principal. Graham 
 V. The OUy of Maysville and Alexander Maddox, 0. S. vi. 589. 
 
 205. The facts that the calculations made by the advocates of the road 
 had proved delusive and erroneous, that the road cost more than was 
 anticipated, and had failed before its completion, are no evidence of fraud, 
 and cannot avail against an innocent bondholder for value. Id. 
 
 206. The true interpretation of the charter under which this subscription 
 was made, is that the city council of Maysville was to appoint the time and 
 give notice of the vote, and make the subscription ; and this has been done. 
 The duty of the mayor was ministerial; the power of the vote controlled 
 him, and after the vote the mayor and the council must subscribe. Id. 
 
 207. That the bonds are made payable to the Maysville and Lexington 
 railroad, instead of to the president and directors of the said company, is an 
 objection of mere form and without substance. Id. 
 
 208. Where the company's charter provided that the interest should be due 
 yearly, it is no violation of it that the interest is made payable semi-annually 
 instead of annually. Id. 
 
 209. Every objection which would have sustained an injunction before the 
 negotiations of these bonds, cannot avail after their negotiation against a 
 bondfide holder or innocent purchaser for value. Id. 
 
 210. Authority to subscribe for stock " as fully as any individual," author- 
 izes issue of bonds in payment. Seybert v. Pittsburgh, N. S. iii. 629. 
 
 211. Bonds issued by a municipal corporation, though not authorized by 
 an existing statute, become binding, if they are subsequently ratified by the 
 legislature. Steines v. Franklin Co., N. S. x. 746. 
 
 212. Cannot be compelled by legislature to issue bonds against its will for 
 the erection of a public park. People ex rel. v. Mayor of Chicago, N. S. ix. 648. 
 
 213. A bont fide holder of municipal securities may presume they were 
 issued properly, if the municipality has the right to issue under any circum- 
 stances. Lexington v. Butler, N. S. xii. 125." i 
 
 VII. Poweh to make Subsoeiptions to Railkoads, &c. 
 
 214. By the provisions of a statute, the supervisor and commissioners of 
 the town of S. were authorized to borrow a sum of money, not exceeding 
 $25,000, upon the credit of the town, and to execute therefor, under their 
 official signatures, a bond or bonds. They were to have no power to do any 
 of the acts authorized by the statute, until the written assent of two-thirds 
 of the resident tax-payers was obtained and filed in the office of the county 
 clerk. The money, when obtained, was directed to be paid over to the 
 president and directors of a railroad company, then about to be organized 
 for the construction of a railroad through the town. Instead of borrowing 
 the money, the supervisors and commissioners executed and delivered the 
 bonds directly to the railroad company in payment forstock, for which they 
 were authorized to subscribe, and these were subsequently sold by the com- 
 pany at a discount. Each of the bonds, upon which the plaintiff brought his 
 action, stated that the requisite consent of the tax-payers had been obtained 
 and properly filed, with a certificate of the county clerk, that a paper, pur- 
 porting to be the written assent, &c., had been filed in his office. The statute 
 did not authorize the giving of this certificate, nor did it prescribe in what 
 method the written assent should be proved. No evidence was offered that 
 the consent had been given, other than what is above stated. The bonds on 
 which the suit was brought were payable to bearer, and the plaintiff was a 
 holder for value. 
 
MUNICIPAL CORPOEATION. 681 
 
 1. Held, that the power to borrow was not properly oortlplied with. 
 
 2. That the provision requiring the assent of the tax-payers, ns evidencpd, 
 ■was a condition precedent to the issue of the bonds, and an indispensable 
 prerequisite to their validity. 
 
 3. That in the absence of all direct proof that the written assent had been 
 obtained, the town was not estopped by the acts of its agents, who had issued 
 bonds asserting upon their face that it had been, even though it had, for a 
 considerable period, acquiesced in their acts. Such consent should liave been 
 proved affirmatively. The case does not come within the rule that, when u, 
 power is conferred, if the agent does an act which is apparently within the 
 terms of the power, the principal is bound by the representation of the agent 
 as to the existence of any extrinsic facts essential to the proper exercise of 
 the power where such facts, from their nature, rest peculiarly within the 
 knowledge of the agent. The defect consists in the existence of the power 
 itself, and if it did not, the facts requisite to the validity of the bonds being 
 created by statute, were not peculiarly within the Jsnowledge of the town. 
 Gould V. The lown of Sterling, N. S. i. 290. 
 
 215. The question under the Constitution of Pennsylvania, whether the 
 Legislature could give authority to the city of Allegheny to subscribe, &a., 
 has been definitely and repeatedly settled by the inferior courts, as well as 
 by the Supreme Court of Pennsylvania, and this court will not discuss it. 
 Amey v. Allegheny Oity, 0. S. ix. 338. 
 
 216. The Circuit Court of the United States has power to compel county 
 commissioners to levy a, special tax, provided by Act of Assembly, to pay 
 the interest on the county's coupon bonds. Knox County v. Aspinwall, 0. S. 
 ix.^347. 
 
 217. Subscription to railroad stock by county, see County. 
 
 218. How far authorized to subscribe to stock of a R. R. Co. Clark v. The 
 City, 0. S. v. 289. 
 
 219. In the absence of special legislation u, county is not authorized to 
 borrow money for a subscription to the stock of a railroad. Brown, Randal 
 et al. V. Comity Commissioners, 0. S. i. 437. 
 
 220. Subscription to R. R. stock, see Sharpless v. The City, 0. S. ii. 85. 
 
 221. Power to subscribe to stock of railroads — comments on opinion of 
 Black, C. J., in Sharpless v. The aty, (21 Penna. St. Hep., 158,) 0. S. ii. 1, 
 and see dissenting opinion of Lowkie, J., 0. S. ii. 29. 
 
 222. The question whether the legislature could give authority to a city 
 to subscribe to railroad stock is definitely settled. Smith v. Milwaukee ^ 
 Superior R. R., 0. S. ix. 655. 
 
 223. But an Act of a State legislature authorizing a city to issue its bonds 
 in aid of railroad companies incorporated and organized, does not extend to 
 companies afterwards incorporated. Id. 
 
 VIII. Power to Levy Taxes and make Assessments upon Reai Estate for 
 Improvements. 
 .224. As to exemption of real estate and levying taxes, see Tlie City v. Tlie 
 Auditor of Muskingum Co., 0. S. iv. 767. 
 
 225. An assessment under the charter of the village of Passaic, providing 
 that the whole cost of an improvement shall be assessed upon the frontage, 
 in proportion to the benefit to each lot, is illegal. The Delaware, L. ^ W. 
 Railroad, pros. v. Village of Passaic, N. S. xiv. 259. 
 
 226. Since the case of Agenx v. Oity of Newark, an assessment made under 
 a statute fixing a standard other than actual benefit, cannot be sustained. Id. 
 
 227. An agreement to levy a special tax cannot be implied from an ordi- 
 nance making it the duty of the City Council "to provide means to meet the 
 payment" of a designated debt when the same may become due. United 
 States ex rel. Learned v. Burlington, N. S. ii. 394. 
 
 228. A City Council has no power to levy taxes not expressly authorized 
 by its charter or the law. Hence, where by the charter of a city it is pro- 
 vided that no greater tax than one per centum shall be levied for any one 
 year, and this maximum rate is actually levied, a mandamus will be refused 
 even to a judgment-creditor to compel the city to levy a greater tax, or even 
 to levy a specific tax to pay his judgment. Id. 
 
 229. Powers to levy taxes to 'pay judgments discussed, and herein of spe- 
 cial taxes and of the rights of judgment-creditors. Note to United States v. 
 Burlington, N. S. ii. 398, and remarks on same case, N. S. ii. 498. 
 
682 MUNICIPAL COEPORATION. 
 
 230. Town has no right to money improperly collected by tax from its tax- 
 payers. Gailor T. Merrick, N. S. iv. 122. 
 
 231. Assessment under city ordinance, not made in conformity therewith, 
 is illegal and void. In matter of Turfier's Petition, N. S. v. 381. 
 
 232. Duties of assessors. Id. 
 
 283. Power to tax in aid of a private corporation. Clark v. The (My, 0. S. 
 T. 289. 
 
 234. It cannot raise money by taxation for the purpose of executing a 
 trust foreign to its institution. Sargeant v. Cornish, N. S. xiv. 324. 
 
 235. Pennsylvania statute relating to municipal lien. Allegheny City's Ap- 
 peal, N. S. ii. 312. 
 
 236. An ordinance of a town prescribing the mode of assessing charges 
 for street improvements, continues valid after the incorporation of town. 
 Neff V. Bates et al., N. S. xiv. 647. 
 
 237. It is settled in Pennsylvania that the legislature may confer upon 
 municipal corporations the power to assess the cost of local improvements 
 upon the property benefited. Hammctt v. City of Philadelphia, N. S. viii. 411. 
 
 238. But such local assessments can only be imposed to. pay for local im- 
 provements, clearly conferring special benefits on the properties assessed, 
 and to the extent of those benefits. They cannot be imposed when the im- 
 provement is either expressed or appears to be for general public benefit. Id. 
 
 239. The paving of a street, changing a road into a street, and bringing 
 the land fronting on it into the marliet as building lots, is a local improve- 
 ment, with special benefits to the land fronting on it, and the cost of such 
 paving may be assessed on the property benefited. Id. 
 
 240. Assessments for improvements. The State v. Mayor, Sfc, of Hudson, 
 N. S. ii. 55. 
 
 IX. PowEE TO Impose Penalties for Bkeaoh op Ordinances. 
 
 241; Cannot enforce its by-laws by penalties, unless authorized by statute. 
 City V. Hughes, N. S. vi. 319. 
 
 242. Power to impose penalties for obstructions to and encroachments upon 
 streets. Id. 
 
 243. A charter giving a municipal corporation the power to prescribe by 
 ordinance fines for violation of its offenders is constitutional. Hone v. Treas- 
 urer of Plainfield, N. S. xiv. 251. 
 
 X. Power to take Private Phopebtt for Public Use. 
 
 244. Has no power to condemn private property for public use for pur- 
 poses not specifically named in a law. Ea^t St. Louis v. St. John, N. S. ix. 56. 
 
 245. The Board of Health cannot absolutely prohibit the carrying on of a 
 lawful business not necessarily a nuisance, Weil v. Ricord, N. S. xiii. 60. 
 
 246. Where the land of a citizen is appropriated and actually used in such 
 improvements, his damages must be first assessed and tendered. City of 
 Delphi V. Evans, N. S. xii. 326. 
 
 XI. Contracts of. . 
 
 247. Where the common council of a city enters into a specific agreement 
 with a railway company, prescribing the regulations to which the company 
 shall be subject requiring no further license and reserving no right to require 
 one, they are concluded by the contract from afterwards passing an ordi- 
 nance requiring the talking out of a license and the payment of a fee by the 
 company to entitle it to run its cars. Mayor, ^c, of New York v. Second Avenue 
 R. R. Co., N. S. i. 63. 
 
 248. A contract, by which the village of Kalamaisoo bound itself to take 
 charge of a market-house for a period of years, and to provide by ordinance 
 for renting the stalls, (fiid confining the sale of certain articles thereto, 
 created a monopoly, was contrary to the policy of the law, and could not be 
 tolerated. Gale v. Kalamazoo, N. S. xi. 286. 
 
 249. No action lies on such contract against the trustees of the village, for 
 a refusal by the village to exercise its corporate legislative powers in taking 
 charge of the market-house and renting the stalls. Id. 
 
 250. When contracts have been made, acts done, and labor performed in 
 pursuance of a construction of a city charter, acquiesced in by all its citi- 
 zens, such construction will be sustained if justified by any possible reading 
 of the statutes. City of Memphis v. Brown, N. S. xi. 629. 
 
MUNICIPAL COEPOEATION. 683 
 
 251. Where the proper Tillage authorities, having power to nial?e contracts 
 on its behalf, assume otiioially to enter into an engagement which only the 
 corporation could properly make, and in so doing declare themselTes and 
 their successors bound by its conditions, it will be deemed the contract of 
 the corporation, and not of the officers. Gale v. Kalamazoo, N. S. xi. 286. 
 
 2-52. When a municipal corporation, acting under the Constitution of 1846, 
 issued in payment of a bond, fide indebtedness, scrip tociroulate as money, 
 after which the scrip was taken up by the issuance of ordinary warrants on 
 the treasury thereof for the amount of the same, it was held that the trans- 
 action could not be impeached by the corporation on the ground that the 
 scrip was illegal and void. Clark v. Oity of Des Moines, N. S. vi. 146. 
 
 253. May enter, like any other, into any contract within the object for 
 which the corporation was created, unless restrained by some legal enact- 
 ment. Pullman v. The Mayor of New York, N. S. ix. 125. 
 
 254. An injunction will not be issued to restrain u city corporation from 
 entering into a contract, where there is no valid statute preventing the mak- 
 ing of such contract, and the case presents no facts justifying the interfer- 
 ence of the court on the ground of fraud. Id. 
 
 255. Where a city charter required that all work should be let by contract 
 to the lowest bidder. Held, that the city authorities could not contract at all 
 for laying the Nicholson pavement, the right to lay it being a patented right 
 and owned by a single tirra, and, therefore, the work being one which could 
 not be open to competition. Dean v. Charlton, N. S. vii. 564. 
 
 256. The fact that an article is patented, does not necessarily prevent any 
 person but the patentee from contracting to supply it; others may do so, 
 taking the risk of being able to obtain the patentee's license. Hoharl ■^.De- 
 troit, N. S. vii. 741. 
 
 257. Therefore, where a city charter provides that no contracts shall be 
 made by the city, except with the lowest bidder, after advertisement of pro- 
 posals, it does not prevent the city from contracting for a patented article, 
 such as the Nicholson pavement, although in point of fact the only bidder was 
 the patentee, who held a monopoly of the article. Id. 
 
 258. Ordinance must follow the charter strictly, or a contract under it will 
 be void, and the contractor in such case cannot recover in any form of action. 
 Cowen ■^.'West Troy, N. S. iv. 510. 
 
 259. Statute authorizing subscription to company for making a road or 
 roads to a city, authorizes subscription for a road between two other cities, 
 from one of which there is a road to the subscribing city. Van Hostrup v. 
 Madison Oity, N. S. iv. 115. 
 
 260. Plaintiff may recover for value of work done, although his contract 
 has not been fully performed. Reed v. Scituaie, N. S. ii. 559. 
 
 261. A contractor under proposals for street improvements must be held 
 to his bid, if he receives more it is an illegal charge against the landowners. 
 J. M. Board et al. v. City of Hoboken, N. S. xiii. 395. 
 
 . 262. Equity will restrain the authorities if they are about to pay for 
 what is not done according to the contract. Schumm v. Seymour, N. S. xiii. 
 331. 
 
 263. If the property owners stand by and see the contractor paid, they can 
 have no relief against the assessment made upon them. Id. 
 
 264. In the payments of contracts with the property owners' money, they 
 act as agents and are amenable. Id. 
 
 265. It is a fundamental principle of law that all persons contracting with 
 a municipal corporation must al their peril see that the ofScers have power 
 to make the contract. Id. 
 
 XII. Action by. 
 
 266. Actions by public oflSoers, as such, should be brought in their indi- 
 vidual names, with the title of their oiEce added. Paige v. Fazerckerly, N. S. 
 i. 766. 
 
 267. When a court of review is satisfied, from the general scope and tenor 
 of the proceedings on the trial, that a particular fact was not a matter of 
 contest, nor v. ground of objection there, but was assumed or taken for 
 granted in the conduct of the cause, it may and should conclude that the fact 
 was as it was assumed to be, Paige v. Fazerckerly,_ N. S. i. 767. 
 
684 MUNICIPAL COEPOEATION— MURDER. 
 
 XIII. Effect of Change of Cokpohate Name. 
 
 268. Neither the identity of a municipal corporation, nor its right to hold 
 property devised to it, is destroyed by a change of its name. Girard v. Phila- 
 delphia, N. S. viii. 245. 
 
 XIV. Distinction between Acts that aee Ministerial and those Quasi Ju- 
 
 dicial. 
 
 269. Distinction is between discretionary or quasi judicial duties and those 
 merely ministerial. Mills v. Brooklyn, N. S. v. 33. 
 
 270. In the exercise of legislative or discretionary powers municipal corpo- 
 rations are beyond the control of the courts. Schummv. Seymour, 'S. S. xiii. 331. 
 
 XV. What amounts to a Dedication of Gkound pok Public Use. 
 
 271. Owner who lays out laud in streets, and sells lots by a map publicly 
 exhibited, dedicates the streets to the public, but they do not become public 
 highways until accepted by the corporation. Pope v. Union, N. S. vii. 701. 
 
 272. An owner with knowledge that his predecessor in title undertook to 
 dedicate certain laud for a street, will be estopped from disputing an assess- 
 ment made against lots on such street, on the ground that it was not legally 
 dedicated. Neffy. Bates, N. S. xiv. 6i7. 
 
 XVI. POWEK of the LeQISLATUEE 0V13B. 
 
 273. The Legislature has full power to authorize the laying of railways in 
 the streets of a city. Paterson ^ Passaic Railroad v. Mayor of Paterson el al., 
 N. S. xiii. 333. 
 
 274. The grant of such authority, even without the consent of the property 
 owners along the route, is lawful. Id. 
 
 275. Where such consent is required, the knowledge of the property owners 
 that the road is being constructed, and their failure to object while the work 
 is being done, will be deemed evidence of consent. Id. 
 
 276. The city is to be deemed the owner of an open square for the purpose 
 of giving consent. Id. 
 
 277. The Legislature of a State may compel a municipal corporation to con- 
 struct highways. The People v. Plagg, N. S. xi. 80. 
 
 278. The Legislature has no power to compel a city to incur a debt against 
 its will. South Park Commissioners v. Chicago, N. S. ix. 718. 
 
 279. The Legislature in Ohio may authorize a municipality to aid in the 
 construction of a public improvement. Walker v. City of Cincinnati, N. S. xi. 
 346. 
 
 280. Municipal corporations may be invested with the power to prohibit 
 the sale of intoxicating drinks. State v. Morris, N. S. xii. 32. 
 
 281. Legislature cannot prohibit a city levying, a tax to pay judgment against 
 the city. Wisconsin v. Madison, N. S. iii. 877. 
 
 282. Power of Legislature to authorize municipal corporations to take land 
 for widening street. Dorgan v. City, N. S. vi. 439. 
 
 283. The State cannot take, by any process of taxation, the money of an 
 individual citizen, for purposes of local conveniences. Park Commissioners v. 
 Common Council, N. S. xiii. 524. 
 
 XVII. Statute of Limitations as to. 
 
 284. Subject to statute of limitations. The' City v. Evans. 0. S. iv. 699. 
 
 285. The statute of limitations runs against a county or other municipal 
 corporation. Evans v. Erie, N. S. i. 799. 
 
 XVIII. Has no Constitutional Right to Tklal by Jury. 
 
 286. Has no constitutional guarantee to trial by jury. Borough of Dun- 
 morels Appeal, N. S. vi. 637. 
 
 MUNICIPAL SUBSCRIPTIONS. See Municipal Corporation, VII. 
 
 1. To the stock of railroad.s. Comments on Judge Black's opinion in 
 Sharpless v. The City (21 Penna. St. Rep. 158), 0. S. ii. 1. 
 
 2. And see dissenting opinion of Lowrie, J., 0. S. ii. 29. 
 
 MURDER. See Criminal Law, Evidence. 
 
 1. In an indictment for murder by poison, it is not necessary to allege that 
 the poison was administered by the defendant to the deceased with an intent 
 to kill. Commonwealth y.Hersey, N. S. i. 178. 
 
 2. A person charged with may be found guilty of manslaughter — and th-s 
 is an acquittal of the charge of murder. Brennan v. The People, 0. S. iii. 635. 
 
MURDER— NAME. 685 
 
 S. And on a new trin,!, he will only be tried for the offence of which he 
 ■was found guilty. Brennan t. The People, 0. S. iii. 636. 
 
 4. Evidence on trial for murder. People v. Fernandez, N. S. vi. 247. 
 
 5. Where threats are evidence of malice in murder. Hopkins v. The Com- 
 monwealth, N. S. v. 444. 
 
 6. A person may be guilty of murder though he took no part in the killing. 
 Brennan v. The People, 0. S. iii. 637. 
 
 7. If several persons conspire to do an unlawful act, and death happens, 
 all are guilty of homicide. Id. 
 
 8. What facts reduce a crime from murder to manslaughter. The State v. 
 ilcDonnell, 0. S.viii.609. 
 
 9- Definition of "malice aforethought." If a blow without provocation is 
 wilfully inflicted, the law infers that it was done with malice aforethought, 
 and if death ensues, the offender is guilty of murder, though the blow may 
 have been given in a moment of passion. Irritative language by deceased 
 forms no provocation in law to reduce the crime to manslaughter. Reg. v. 
 Noon, 0. S. ii. 116. 
 
 MURDER BY DUEL. See Bail. 
 
 Where there is a verdict of a coroner's jury of guilty of wilful murder 
 against parties, and there is evidence upon the depositions to support that 
 finding, this court will not admit them to bail, though the murder appears to 
 have been committed in a duel, and though the evidence may not be conclu- 
 sive of guilt. Reg. v. Barthelemy and Moonay, 0. S. i. 373. 
 
 MUTTON. 
 
 What constitutes mutton. Distinction between a dead and living sheep a 
 judicial puzzle. Miscellany, 0. S. i. 503. 
 
 MUTUAL FAULT. See Collision, Negligence. 
 
 MUTUAL SUPPORT, RIGHT OF. 
 
 1. When a number of houses are built together on a spot of ground in 
 such a manner as to require the mutual support of each other for the pur- 
 pose of their common protection and security, and the owner afterwards 
 parts with the possession, either at one time or both together, and the prop- 
 erty is afterwards subdivided, the right of mutual support remains. Richards 
 V. Rose, 0. S. ii. 178. 
 
 2. Semble, per Parke, B., that this does not deprive the occupier of any of 
 the houses of the right of making a drain to his house. Id. 
 
 MUTUUM. 
 
 1. In case of a regular deposit of wheat with a warehouseman, a liability 
 for the value of the wheat is incurred by the depositary, in case he mixes it 
 with other wheat in his warehouse, and ships the same on his own account, 
 notwithstanding he may supply the place of the depositor's wheat by other 
 ■wheat procured and deposited in his warehouse: and the destruction, by 
 accident, of his warehouse, and the wheat supplied to take the place of the 
 depositor's wheat, will not protect the depositary from this liability to the 
 depositor. Chase et al. v. Washburn, 0. S. i. 487. 
 
 2. In case of an irregular deposit, or mutuum, where the obligation im- 
 posed on the depositary, or mutuary, is to re-delLver, not the specific thing 
 furnished, but another article of the same kind and value ; or, where the 
 depositary has the option to return the specific article received, or another 
 of the same kind and value, in either case the property passes to the de- 
 positary, as fully as in a case of ordinary sale or exchange, and the risk of 
 loss by accident follows the control or dominion over the property. Id. 
 
 NAME. 
 
 1. Parties in successive deed of a chain of title of the same nanje are pre- 
 sumptively the same persons. Cross v. Martin, N. S. xiii. 775. 
 
 2. Identity of name is evidence of identity of persons. Mong v. Benedict, 
 N. S. xiii. 457. 
 
 3. The possession of the record of a judgment rendered by a justice gives 
 no room for the presumption that the holder is the party plaintiff. Bennett 
 ■y. Libheart, N. S. xiii. 457. 
 
686 NAME— NAVIGABLE STREAM. 
 
 4. The surname of the attorney to a complaint ia sufficient. Coles v. Cor- 
 nelius. N. S. xiv. 647. 
 
 5. If person is as well known by the name in the indictment as by the one 
 pleaded, the indictment is good. State v. Dresser, N. S. Tii. 445. 
 
 NAPOLEON. 
 
 Code of, historically discussed and explained, 0. S. iii. 641. 
 
 NATIONAL BANKS. 
 
 A state has no authority to impose a duty upon an officer of a national 
 bank. Markoe v. Hartranft, N. S. vi. 487. 
 
 NATIVITY. 
 
 Of child, of American parents, born in a foreign country, subject discussed, 
 0. S. ii. 193. 
 
 NATURAL CHILD. 
 
 Meaning of,under Indiana statute of distributions. Jlarnsv.Allen,0. S. ix. 747. 
 
 NATURALIZATION. 
 
 1. Certificates of naturnlization are records, and cannot be impeached col- 
 laterally. Scott V. Strobach, N. S. xiii. 461. 
 
 2. A court having no clerk or recording officer is not a "court of record" 
 within the meaning of the United States statute of April 14, 1802, and has 
 no jurisdiction in naturalization. State v. Whittemore, N. S. xi. 268. 
 
 3. False swearing in an application for naturalization in a state court is 
 indictable as perjury under the state law. State v. Whittemore, N. S. xi. 263. 
 
 4. The power to naturalize is made a judicial power by the Act of Con- 
 gress. Ex parte Frank Knowles, 0. S. iv. 598. 
 
 NAVIGABLE STREAM. 
 
 1. What constitutes. Glover v. Powell, 0. S. iii. 367. 
 
 2. Where a highway is laid out to navigable water, and there terminates, 
 the terminus may be regarded as intended for a public landing as incident 
 to the highway. Burrows v. Gallup, N. S. vi. 84. 
 
 3. Meaning of navigable river at common law. Magnolia v. Marshall, N. S. 
 vi. 510. 
 
 4. Public rights are upon the river, not upon the banks. Bainbridge v. 
 Sherlock, N. S. vii. 720. 
 
 5. Construction of acts of the legislature of New Jersey with regard to 
 the proprietors of the bridges over the rivers Passaic and Hackensack. Mil- 
 nor V. New Jersey R. R. Co., 0. S. vi. 6. 
 
 6. If acts and agreements give to a corporation a franchise, or exclusive 
 privilege of taking toll and erecting a bridge, that franchise may be taken by 
 the legislature under the right of eminent domain. Id. 
 
 7. A court of the United Stales has no jurisdiction to restrain by injunc- 
 tion the erection of a bridge over a navigable river, lying wholly within the 
 limits of a particular state. Id. 
 
 8. In Michigan there are no tide-waters, which come within the technical 
 meaning of the terra "navigable," as understood in common law. Lorman 
 V. Benson, 0. S. viii. 219. 
 
 9. The United States, under the power to regulate commerce among the sev- 
 eral states, have paramount authority over a navigable stream, bearing a neces- 
 sary relation to such commerce. Woodman v. Kilbourn Manuf'g Co., N. S. vi. 238. 
 
 10. Where a river is wholly in a state, the legislature has full control over 
 the navigation of it. Flanagan v. Philadelphia, N. S. ii. 504. 
 
 11. Erection of a pier in navigable river, without legal authority, will be 
 a nuisance ^er se. People Y.Vanderbilt, N. S. ii. 632. 
 
 12. Unrestricted grant of authority to build a railroad carries with it the 
 right to cross a navigable stream. Fall River Iron - Works Co. v. Old Colony, 
 ^c., R. R. Co., N. S. ii. 699. 
 
 13. Whether a stream is within the term "navigable waters of the United 
 States," depends upon whether the stream in its natural state affords af 
 channel for commerce. The Montello, N. S. xiv. 315. 
 
 14. The right to fish for oysters in the navigable waters of the state is 
 common to all the citizens of New Jersey. Paul et a.l. v. Hazelton, N. S. xiv. 259. 
 
 15. The legislature may grant the exclusive right to one citizen to plant 
 oysters in the bed of a stream. Id. 
 
NAVIGABLE STEEAM— NAVIGATION. 687 
 
 IB, Trespass will be for an invasion of this right. Paul ct al. v. IlazeUon, 
 N. S. xiv. 259. 
 
 17. Fishery is an acknowledged right, hut Is subordinate to the rights of 
 navigation. Cobb v. Bennett, N. S. xiv. 260. 
 
 18. A vessel wantonly running into a net in a private fishery, in a nav- 
 igable stream, will be held liable for the damage. Id. 
 
 19. Test of at common law — the ebb and flow of the tide. This does not 
 apply to the Mississippi River. McManus v. Carmichael, 0. S. v. 593. 
 
 20. By the law of Pennsylvania, the river Delaware is a public, navigable 
 river, hold by its joint sovereigns in trust for the public. Rundle v. Delaware 
 ^ liaritan Canal Co., 0. S. i. 246. 
 
 21. Riparian owners in that state have no title to the river, or any right 
 to divert its waters, unless by license from the states. Id. 
 
 22. Bridge over, jurisdiction of U. S. courts as to. Milnor v. -ffi. S. Co., 0. 
 S. vi. 7. 
 
 23. General power to erect bridges includes power to put piers in the river, 
 and protects the company from liability for damages to navigation, unless the 
 right is wantonly or carelessly used. Clarke v. Birmingham, ^c.. Bridge Co., 
 N. S. ii. 188. 
 
 24. The remedy for such wanton or careless use of right is through suit 
 by the state, not by a private person. Id. 
 
 25. A general law that no bridge shall be built so as to hinder navigation, 
 does not take away froin a subsequent legislature the power to grant right 
 to erect such bridges in particular places. Id. 
 
 26. What are navigable streams, and the extent of grant to riparian owners. 
 Flanagan «. Philadelphia, N. S. ii. 504. 
 
 27. Right and control of navigation in. Id. 
 
 28. Riparian owner on a navigable stream, who raises and reclaims the 
 land, has a full fee-simple in such land. People v. Kelsey, N. S. ii. 631. 
 
 29. Right of riparian owners to compensation for soil taken for railroad. 
 Gould V. Hudson River R. R., 0. S. i. 182. 
 
 NAVIGATION. 
 
 1. Of a stream wholly within a state, under the laws of such state. Veasg 
 V. Moore, 0. S. i. 376. 
 
 2. The right of the city to draw water for manufacturing purposes is subor- 
 dinate to the right of navigation. City of Philadelphia v. Gilmarlin, N. S. xii. 790. 
 
 3. In Michigan there are no tide-waters which come within the technical 
 meaning of the term "navigable," as understood at common law. Lorirtan 
 V. Benson, 0. S. viii. 219. 
 
 4. Lands bounded on Lake Champlain extend to the edge of the water at low- 
 water mark. Judson B. Fletcher v. Samuel Phelps and Benajah Phelps, 0. S. v. 677. 
 
 5. The rule that the obstruction of a navigable river will not be deemed a 
 nuisance, if the public are benefited. Attorney -General v. Terry, N. S. xiii. 591. 
 
 6. Even the beds of navigable tide-waters are subject to the disposal of 
 state laws, saving the public rights. Bay City Gaslight Co. v. IndustrialWorks, 
 N. S. xiii. 526. 
 
 7. The right of navigation is not so far paramount as to make booming 
 facilities a nuisance whenever they encroach on navigable waters. Brig 
 City of Erie v. Canfields, N. S. xiii. 895. 
 
 8 An injury to a boom is not a maritime tort, and cannot be redressed in 
 admiralty. Id. 
 
 9. The right of docking must not impair the right of na,vigation. Id. 
 
 10. The people of other nations navigating the high seas may sue the citi- 
 zens of the United States in her courts for injuries resulting from disregard 
 of the navigation laws. The Scotia, N. S. xii. 186. 
 
 11. Courts may take judicial notice of the rules of navigation of Great 
 Britain and the United States. Id. 
 
 12. Where it is held that the title of purchaser extends to the centre of a 
 stream, it is subject to the public right of navigation. Wisconsin Imp. Co. v. 
 Lyons, N. S. xii. 195. 
 
 13. The public have all rights on the banks of a stream necessary to navi- 
 gation. Id. 
 
 14. The rights of the public for the navigation of the Schuylkill river are 
 superior to those of the city of Philadelphia under the Act of April 9th, 1807. 
 City of Philadelphia v. CHlmartin, N. S. xii. 790. 
 
088 NAVIGATION— NEGLIGENCE. 
 
 15. If a local statute give to a navigation company, among other powers, 
 a power to appoint and set out towing-paths alongside a river; but the lan- 
 guage leaves it in equal doubt whether the soil of the towing-paths is to rest 
 in the company or only the easement of the right of way for towing; though 
 it is necessary for other purposes of the company that the company should 
 have the fee of certain parts of the land adjoining the river, the company 
 does not acquire the fee in the towing-paths, but only such a use of the soil 
 or easement as was necessary for the purpose of the navigation. Badger v. 
 The South Yorkshire Rail and /{iter Dun Navigation Co., 0. S. vii. 512. 
 
 16. The rules of navigation as settled in St. Johny. Paine, 10 How. 583; 
 The Genesee Chief, 12 How. 461 ; and the Oregon v. Roeeo, reaffirmed and acted 
 upon. Haney v. The Louisiana, 0. S. vi. 422. 
 
 17. Eight of corporation under authority of its charter to obstruct. Plank- 
 Road Co. V. Elmer, 0. S. v. 57. 
 
 18. Every erection in a navigable river which hinders navigation is a 
 nuisance. Id. 
 
 19. Vessels have a right to use a warp in getting in and out of the harbor 
 of a navigable river, and to extend the warp across the entire channel; but 
 on the approach of another vessel it is the duty of the vessel using the warp 
 to take notice of such approach, and to lower the warp as to give a free 
 passage through the ordinary travelled part of the channel, and to indicate 
 to the approaching vessel the point intended for her passage. The ap- 
 proaching party is not bound to pass at the point indicated, but may p.iss at 
 a different point if he honestly thinks it can be done without interference; 
 but in such ease he will be liable for the damage which ensues, unless he 
 can prove that he disregarded the notice of the other vessel in the bmid, fide 
 belief that he could so pass without damage to it, and the burthen of proving 
 this will be upon him. Potter v. Pettis, 0. S. ii. 678. 
 
 NAVY. 
 
 Congress has power to prohibit state judges from interfering with enlist- 
 ments by habeas corpus. Matter of 0' Conner, N. S. vii. 60. 
 
 NE EXEAT. 
 
 1. Will be issued only for an equitable demand for a certain sum actually 
 due, or for an account where some sum is due. MacDonough v. Oaynor, N. 
 S. vii. 701. 
 
 2. Practice in regard to. Id. 
 
 NEGLIGENCE. 
 
 I. Nkglioenoe Generally. 
 
 1. The doctrine of — the subject discussed. 0. S. viii. 385, 0. S. ix. 129. 
 
 2. In the case of travel by passengers upon an ordinary highway in a 
 public conveyance, especially where the highway is a crowded city street, 
 the possibility of negligence or misconduct of the owners or drivers of other 
 vehicles, over whom the carrier has no control, is a risk which a passenger 
 cannot oast upon the carrier, but must, so far as the latter is concerned, 
 take upon himself. Spooner v. Brooklyn City Rail/road Co., N. S. i. 572. 
 
 3. The hirer of a horse who, by improperly feeding and watering him, 
 has made him sick, and returns him in this condition t'o the owner, is liable 
 for his full value if the owner, by the use of reasonable care and the em- 
 ployment of a suitable veterinary surgeon, who treats him according to his 
 best judgment, is unable to cure him ; although such treatment was in fact im- 
 proper, and OQiitributed to the horse's death. Eastman v. Sanborn, N. S. i. 568. 
 
 4. Character for skill, care, &c.^. though growing out of the special act of 
 a party, cannot be established by proof of such acts, but by evidence of 
 general reputation. Frazier v. Penna. R. R., N. S. i. 60. 
 
 5. Notice to the proper ofhcers or servants of the company is notice to the 
 company, and will render it liable unless it uses proper diligence in repair- 
 ing the defect; but if it has made an effort by a competent servant to repair, 
 it is not liable. Failure to remedy the defect does not conclusively prove 
 negligence on the part of the workmen, and if it did, he Is a fellow-servant 
 of the plaintiff, for whose negligence the company is not liable. R. R. Co. v. 
 Thomas, N. S. viii. 154. 
 
 6. Negligence by innkeeper in losing baggage of guest. Cheesbrough v. 
 Taylor, 0. S. ix. 435. 
 
NEGLIGENCE. 689 
 
 7. Negligence is the want of that care which men of common sense and 
 common prudence ordinarily exercise in their employments. 0' Jirien v. The 
 Phil., Wil. ^ Bait. R. R., 0. S. vi. 3B1. 
 
 8. The mere fact that a car of a railroad company in the city of New York 
 is proceeding on the left-hand track, will not of itself charge the company 
 ■with fault. AUrueier v. R. Ji. Co., 0. S. v. 309. 
 
 9. Any injury to property in custody of an officer, under attachment, 
 by his apparent negligence or want of care, renders him primd facie liable, 
 and Imposes upon him the burden of showing a valid excuse. Briggs v. 
 Taylor, 0. S. v. 239. 
 
 10. The liability of railroad companies for damage caused by fire through 
 the negligent management of their engines, is settled at common law. Sun- 
 bury ^- Erie R. R. Go. f. Hummel. 0. S. v. 244. 
 
 11. But they cannot be called upon to make compensation in advance for 
 the risk of fires not included within the common law rule, and no such con- 
 sideration can operate upon the viewers in fixing the amount of damages to 
 be awarded to the landowner. Id. 
 
 12. An action on the case lies against owners of a steamboat for loss of a 
 hired slave, who was killed in consequence of a collision wiih another boat, 
 if his death was caused by the negligence or want of skill of the oificers of 
 the boat. Cook ^ Scolt v. Parham, 0. S. iii. 54. 
 
 13. And this, though the slave's death was caused by Ms own act, in jump- 
 ing overboard. Id. 
 
 14. Negligence of postmaster in losing letter, action therefor. Pord v. 
 Parker, 0. S. iv. 631. 
 
 15. If one by his acts, silence, or negligence, misleads another, he must 
 bear the loss if the innocent party suffers. Garrard v. Hadden, N. S. xi. 125. 
 
 16. Proof of delays and accidents raises no presumption of negligence on 
 the part of the company. Bankard f .Baltimore S[ Ohio R. R. Co., N. S. xi. 53. 
 
 17. Where an injury occurred at a street crossing, no recovery can be had 
 without proof of actual negligence. McPhelers v. Kansas ^ St. Joseph R. R., 
 N. S. ix. 32-5. 
 
 18. The owner of property is not liable to a trespasser for negligence. 
 Cox V. Parmers' Jlarket Co., N. S. ix. 103. 
 
 19. The unauthorized delivery of a thing bailed. Colyar v. Taylor, 0. S. 
 ix. 428. 
 
 20. No distinction in Illinois between negligence of the president and 
 directors of corporation and that of their servants or agents. R. R. Co. v. 
 Read, N. S. vi. 118. 
 
 21. Neglect of master to use safety-plug in his steam-boiler required by 
 statute, entitles his servant to recover for injuries resulting from an explo- 
 sion. Cayzer v. Taylor, N. S. iii. 187. 
 
 22. Street car railway company liable for negligence of driver of street 
 car in assisting passengers to get aboard. Brew v. Sixth Avenue R. R. Co., N. 
 S. iii. 498. 
 
 23. Action against the attaching officer for negligence pending the attach- 
 ment. Briggs y. Taylor, N. S. iv. 56. 
 
 24. The "unlawful violence or negligence" in the statute giving an action 
 to surviving relatives for an injury causing death, include malpractice as a 
 physician. Braunberger v. Cleis, N. S. iv. 587. 
 
 25. The driver of a team which is on the left hand side of a street, in viola- 
 tion of the law of the road, may, nevertheless, recover damages for an injury 
 sustained by him from a collision with another team, the driver of which, in 
 meeting him, carelessly or recklessly runs against him or his team. Spojfard 
 v. Harlow, N. S. i. 435. 
 
 26. Error of judgment of an attorney is not negligence. Orosbie v. Murphy, 
 0. S. viii. 251. 
 
 27. Judicial interpretation of "ne^%«reec." Id. 
 
 28. Railroads and private individuals, with respect to the same subject 
 matter, are held to the exercise of the same degree of diligence in preventing 
 injury to others. 0. ^ M. R. R. Co. v. Shanefelt, N. S. ix. 62. 
 
 29. It is not negligence per se for a railroad to suffer grass and weeds to 
 accumulate on its right of way; the fact, however, is proper evidence for 
 the jury, who may find negligence from it. Id., and see post pi. 31 and 39, 
 
 44 
 
690 NEGLIGENCE. 
 
 30. And unless it appears that the negligence of the company is greater 
 than that of a landowner, the latter cannot recover for injuries thus arising. 
 0. ^ M. R. R. Co. v. Shanefelt, N. S. ix. 62. 
 
 31. Whether it is negligence in a railroad company to permit the accumu- 
 lation of grass and weeds on their traels, is a question for the jury. Illinois 
 Central R. R. v. Nunn, N. S. ix. 644. 
 
 32. There is no difference in law between negligence and gross negligence. 
 McPheters v. Han. ^ St. Jos. R. R., N. S. ix. 32-5. 
 
 33. It is negligence in a railroad company not to keep informed as to the 
 condition of the track, whether it is safe for the passage of trains, or not. 
 T. W. ^ W. Railway Co. v. Apperaon, N. S. ix. 886. 
 
 34. It is not the absolute duty of a railroad company to furnish a safe 
 engine. Its duty is to use care and diligence to furnish such an engine. 
 Railroad Co. v. Thomas, N. S.Tiii. 154.. 
 
 35. When an injury has occurred to a servant in consequence of a defect 
 in an engine, the burden is on the servant to show negligence in the master, 
 and it is not shifted by the fact that an injury has resulted from a defect. Id. 
 
 36. The occupant of a second story is liable for the negligence of his ser- 
 vants in allowing a hydrant to flood the story below, and damage the goods 
 of the occupant of said story. Oass v. Callunry, N. S. viii. 381. 
 
 37. The negligence of deceased must be direct and proximate to defeat an 
 action by his widow. Meyer y. People's Railway, N. S. viii. 381. 
 
 38. The owner of a horse who allowed him to wander on the unenclosed 
 land of another, where he fell into a well and was killed, cannot recover 
 damages unless he shows that the defendant was guilty of gross negligence. 
 Calkins v. Mathews, N. S. viii. 447. 
 
 39. It is not negligence per se to permit standing grass and weeds on a 
 railway track. Kansas S; Pacific R. R. v. Butts, N. S. x. 668. 
 
 40. In an action for negligence if the plaintiff makes out aprim&facie case, 
 the burden is on the defendant to disprove care. Penna. Canal Co. v. Bentley, 
 N. S. X. 746. 
 
 41. Railroad company allowing another company to use its road is li.ible 
 for accidents to its own passengers from the other company's negligence. 
 
 ■ R. R. Co. V. Barron, N. S. vii. 124. 
 
 42. Negligence is always a question for the jury, when the measure of duty 
 is ordinary and reasonable care. West Chester Railroad Co. v. McElwee, N. S. 
 xi. 200; 
 
 43. When the standard of the degree of care shifts with circumstances, it 
 is always for the jury. Id. 
 
 44. When the standard is fixed, and the measure of duty defined by the 
 law, its omission is negligence and may be declared by the court. Id. 
 
 45. Where there is such disregard of duty and safety as amounts to mis- 
 conduct, the court may declare it negligence. Id. 
 
 46. Must be actual negligence to make carriers of passengers liable. 
 Sawyer v. R. R. Co., N. S. vi. 62. 
 
 47. What is gross neglect in the engineer may be determined by the court, 
 as a question of law, when there is no controversy in regard to the facts. Id. 
 
 48. Traveller leaving highway voluntarily, but from reasonable fear of 
 injury, if he remain, may recover for injury received in so doing. Glidden 
 v. Reading, N. S. v. 638. 
 
 49. Such leaving is, in the eye of the law, a leaving from necessity. Id. 
 
 50. Want of care or prudence of companions of blind man. Id. 
 
 51. The general practice of the defendants in running their cars backwards 
 across the streets of a city while the engineer is too remote to see the track, 
 and while there is no one upon the cars to look out for persons or property 
 liable to be injured thereby, is no ground of inferring negligence against 
 them. The question to be determined is whether there was negligence at the 
 particular time when the injury occurred. The inference in that direction is 
 rather weakened than strengthened by showing such general practice. Ban- 
 non V. Railr-oad Co., N. S. v. 470. 
 
 52. Railway companies operating their trains along or across the streets 
 of a city are bounid to exercise ordinary care to do it in such a manner as not 
 to inflict injury upon persons or property lawfully using the same streets. 
 And persons so exposed to injury are bound to exercise similar caution to 
 avoid such injury. Id. 
 
NEGLIGENCE. 691 
 
 53. Carrying a pressure of steam in excess of the amount allowed by the 
 government certificate under the Act of February 28th, 1871, is suifioient evi- 
 dence of negligence to warrant a jury in so finding. Carroll v. Staten Island 
 Railroad, N. S. xii. 664. 
 
 54. Where a passenger on a oar or vessel is injured by the concurrent 
 negligence of his carrier and a third person, his remedy is solely against his 
 carrier. Lockharl et al. v. Lichtenthaler, N. S. iv. 15. 
 
 55. If, however, the negligence of the third party was the sole proximate 
 cause of the injury, and there was negligence of the carrier only in a general 
 sense, but which did not contribute to the injury, the third party is responsi- 
 ble. Id. 
 
 56. Whether the defence of concurrent negligence can be heard without 
 being specially pleaded, qusere. Id. 
 
 57. Estoppel of party by his carrier's negligence, discussed. Note to Lock- 
 hart V. Lichtenthaler, N. S. iv. 23. 
 
 58. Action for escape of gas — evidence. Hunt v. Lowell Co., N. S. iv. 189. 
 69. The negligence of the party relying on false representations is no 
 
 answer to an action for damages resulting therefrom. Eaton v. Winnie, N. S. 
 X. 540. 
 
 60. Trustees of a railroad under a, mortgage, who operate the road, are 
 personally liable for negligence of employees. Ballou v. Farnum, N. S. iv. 766. 
 
 61. Owner of a building partially leased out, liable to city for damages the 
 latter had to pay on account of defective awning, if he had notice of the suit, 
 and such suit is conclusive on him. Milford v. Solbrook, N. S. iv. 766. 
 
 62. Whether carrier can exempt himself from responsibility for his own 
 negligence. Note to Hooper v. Wells, Fargo ^ Co., N. S. v. 32. 
 
 63. Turning diseased sheep into lot adjoining where another's sheep are 
 kept. Fisher v. Clark, N. S. iii. 638. 
 
 64. Person is liable for damages caused by sparks from a steam-engine 
 used without precaution to prevent injury. Teall v. Barton, N. S. iii. 318. 
 
 65. In proving character of plaintiff's horse, instances being proved of his 
 shying before the accident, similar instances after it may be proved. Todd 
 V. Rowley, N. S. iv. 119. 
 
 66. Generally speaking, it is the duty of every person to take care of hia 
 own safety, so as not to go along a dark passage without a light to tell him 
 where he is going, and what the danger is that he is to expect. Wilkinson v. 
 Fairrie, N. S. ii. 242. 
 
 67. Of owner of property left by mistake on another's wharf will not justify 
 a sale of the property by wharfinger. Kusenburg v. Browne, N. S. ii. 503. 
 
 68. Negligence is always a question for the jury, where there is any doubt 
 as to the facts, or the inference to be drawn from them. Fenna. R. R. Co. v. 
 Barnett, N. S. viii. 768. 
 
 69. It is negligence for a traveller to drive on a bridge just as a train is 
 about to pass under it, if he has notice of its approach. Id. 
 
 70. Degree of care required towards children of tender years. Note to 
 Bannon v. R. R. Co., N. S. v. 477. 
 
 71. Where an injury is the result of two concurring causes, the party re- 
 sponsible for one is not exempt from liability because the other party is 
 equally culpable. Lake v. Milliken et al., N. S. xiv. 198. 
 
 72. Every wrong-doer is responsible for all the consequences resulting 
 from his misconduct. Id. 
 
 73. The doctrine of comparative negligence is discarded, and contributory 
 now prevails. Johnson v. Tillson, N. S. xiv. 59. 
 
 74. An instruction that defendant is liable for his negligence, unless plain- 
 tiff was equally guilty of negligence, is erroneous. Id. 
 
 75. Right of state to bring civil action against its own officers, for neglect. 
 Note to Commonwealth v. Reed, N. S. vi. 162. 
 
 76. Injury received by horses and carriage through negligence may be 
 recovered, though let by plaintiff to defendant for use declared unlawful by 
 the Sunday act. Nodine v. Doherty, N. S. v. 346. 
 
 77. Executing a negotiable note without reading it is negligence. Nebeker 
 V. Catainger et al., N. S. xiv. 580. 
 
 78. " Slight negligence " is not want of ordinary care, but want of extraor- 
 dinary care. Cremer, Adm'r y.The Town of Portland, N. S. xiv. 324. 
 
692 NEGLIGENCE. 
 
 79. A man is not liaWe in trespass on the case for an unintentional 
 consequential injury resulting from a lawful act, where neither negligence 
 or folly can be imputed to him ; and there is no reason for a dift'erent rule 
 where the injury is immediate and direct and the action trespass. Morris v. 
 Flatt, N. S. iv. 523. 
 
 80. Where a person in lawful self-defence fires a pistol at an assailant, 
 and missing him wounds an innocent bystander, he is not liable for the 
 injury if guilty of no negligence. Id. 
 
 81. Where defendant's negligence is so gross as to show a disregard of 
 consequences or wilfulness to do injury, plaintiff may recover, though a tres- 
 passer. E. R. Co. V. Adams, N. S. vi. 718. 
 
 82. When passer-by is guilty of culpable negligence and forfeits claim to 
 redress. Ernst v. R. R. Co., N. S. vi. 253. 
 
 83. Mere negligence by which property is damaged is not legal conver- 
 sion. Tinker t. Morrell, N. S. vi. 775. 
 
 84. A draw-tender of a bridge, appointed by the governor, with a salary, 
 having full control and direction of the passing of all vessels through tlie 
 draw and of the opening of the draw, and of the care of the lamps upon a 
 bridge, furnishing all necessary assistance therefor, whose duty it is to allow 
 no unnecessary detention of vessels, having due regard and caution for the 
 public travel, and who is requited to give bond to the Treasurer of the Com- 
 monwealth for the faithful performance of his duties, is liable in damages to 
 a person injured solely through his failure to have due regard and caution 
 for the public travel in performing his duties. Howell v. Wright, N. S. i. 486. 
 
 85. A party who takes reasonable care to guard against accidents arising 
 from ordinary causes, is not liable for accidents arising from extraordinary 
 ones. And therefore, 
 
 86. Where a company incorporated for supplying a street with water con- 
 structed their apparatus according to the best known system, and kept it in 
 proper repair for twenty-five. years, at the end of which time a frost of 
 unusual severity acted on the apparatus so as to cause injury to the property 
 of another person. Held, that the company were not liable for negligence. 
 Blyth V. The Birmingham Water- Works Co., 0. S. iv. 570. 
 
 87. Per Aldkeson, B. — Negligence consists in the omitting to do something 
 that a reasonable man would do, or doing something that a reasonable man 
 would not do, in either case causing, unintentionally, mischief to a, third 
 party. Id, 
 
 88. A prisoner confined in a house of correction, under sentence of court, 
 and while there put into solitary confinement for refractory conduct, in ac- 
 cordance with rules established for such cases, cannot maintain an action 
 against the master for neglect to provide for him sufiicient food, clothing, and 
 fires, if he is kept in one of the usual cells, and there is no evidence of express 
 malice, or of such gross negligence as to authorize the inference of malice. 
 Williams v. Adams, N. S. i. 436. 
 
 II. Violation of Raileoai) Company's Regulations by Passengek, and what 
 
 IS Sufficient Notice of such Regulations. 
 
 89. The violation of a railway company's regulation is conclusive evidence 
 of such negligence on the part of a passenger as will prevent a recovery for 
 an injury resulting (herefrom. B. Sf 0. R. R. v. The State, N. S. ix. 453. 
 
 90. The fact of the company's regulations heing put in all the cars, is evi- 
 dence of notice to persons riding therein. Id. 
 
 91. It is negligence on the part of a passenger to stand on the platforms if 
 there is standing room in the cars. Quinn v. Illinois C. R. E., N. S. x. 182. 
 
 92. Railroad cannot stipulate against gross negligence or wilful misfeas- 
 ance. Railroad Co. v. Read, N. S. vi. 125. 
 
 93. Liability of railroad for negligence. N. S. vii. 449. 
 
 III. Negligence on Part of Passengek. 
 
 94. When a passenger leaves the cars, otherwise than by a safe and con- 
 venient platform provided for the purpose, and death or injury results 
 therefrom, there must be proof of some justifying necessity 'for his doing so 
 to excuse him from negligence and the consequence of it, A voluntary dis- 
 regard of regulations provided for his safe exit by the platform, is a dis- 
 regard of his obligations to the company, and leaves them free from liability 
 
NEGLIGENCE. G93 
 
 for injuries consequent upon his act. Pmnsyhania E. R. Co. v. Zebe, 0. S. 
 ■viii. '27. 
 
 95. It is not negligence on tlie part of tlie company that they do not, by 
 force or barriers, prevent parties from leaving the oar at the wrong side. 
 Passengers are presumed to act reasonably in all given contingencies. Id. 
 
 96. It is negligence in a passenger, or iu an employee holding the relation 
 of a passenger, to ride in the baggage-car. O'Donnell v. Allegheny R. R., N. 
 S. viii. 757. 
 
 97. Passenger leaving a train improperly, cannot maintain action for per- 
 sonal injury received thereby. Frost v. Railroad Co., N. S. v. 57o. 
 
 IV. Injuries at Eailway Ckossings. 
 
 98. One who is about to cross a railroad at grade, on which locomotives 
 run, is bound to stop and listen, and look in botli directions, before he al- 
 lows his team to set foot within the rails, and an omission to do so is negli- 
 gence on Ijis part. O'Brien v. The PhiL, Wil. ^ Bait. R. R., 0. S. vi. 361. 
 
 99. At a railroad crossing it is carelessness in any one approaching with 
 a team, not to stop and listen, before attempting to cross. Wilds v. The Hud- 
 son River R. R., N. S. ii. 76. 
 
 100. The reciprocal duties of railroad companies and persons ci'ossing the 
 track discussed. Telfer v. Northern R. R. Co., N. S. iii. 665. 
 
 101. The danger at the crossing of a railroad and street at grade is one 
 which travellers are as much bound to guard against as the railway com- 
 pany, and the negligence of the company will not excuse or qualify the duty 
 of watchfulness on the part of the traveller. Wilds v. The Hudson River R. 
 R., N. S. ii. 76. 
 
 102. A request on the part of defendant, to charge the jury, that if the 
 deceased was aware of the approach of the train, before he drove upon the 
 track, and voluntarily drove upon it after being so aware of its approach, 
 he cannot recover, should be answered in the affirmative. Per Gouli), J. 
 Id. 
 
 103. It is negligence in a traveller crossing a railroad not to stop and look 
 up and down, because he is bound to presume a train is coming. Rennu. 
 Canal Co. v. Bentley, N. S. i. 746. 
 
 lOrt. As a general rule, it is culpable negligence to cross the track of a 
 railroad at a highway crossing without looking in every direction that the 
 rails run to ascertain whether a train is approaching. Illinois Central R. R. 
 V. Godfrey, N. S. xiv. 290. 
 
 105. Where there is no testimony as to whether a traveller stopped and 
 listened before going on a railroad, the question of his negligence is for the 
 jury. Penna. Railroad Co. v. Weber, N. S. xiv. 526. 
 
 106. The presumption in the absence of evidence is that the traveller stops 
 and listens before crossing a railroad. Id. 
 
 107. The burden of proof is on the railroad to show want of care. Id. 
 
 108. If a pile of wood or such other substance placed there by the rail- 
 road, obstructing the view of travellers upon the public highway, one who 
 has driven upon the track with due care, and looked for the train as soon as 
 looking could be of service, will not be deemed guilty of negligence. MacKay 
 V. Railroad, N. S. vi. 413. 
 
 109. If in such case the traveller is injured by a collision with the cars, 
 the company will be deemed guilty of negligence, and will be held answer- 
 able therefor. Id. 
 
 110. Failure to stop before crossing track is negligence j^er «e. Penna. R. 
 R. V. Beale, N. S. xiii. 526. 
 
 111. The omission to blow the whistle at a crossing is not conclusive evi- 
 dence of negligence. Wakefield v. Railroad Co., N. S. iv. 256, 381. 
 
 V. Injuries to Free Passengers. 
 
 112. Where the plaintiff was a free passenger on a railroad train under a 
 special contract with the carrier that the latter should not be liable to any 
 damages arising from negligence, and was injured by a collision, it was held 
 that the contract was valid, and that the plaintiff could not recover unless ho 
 could show that the negligence was fraudulent, wilful, or reckless. Wells v. 
 The New York Central Railroad Co., 0. S. vi. 713. 
 
 113. A passenger carried gratuitously, or as a matter of courtesy, in the 
 
694 NEGLIGENCE. 
 
 cars of a railroad company, who is injured by an accident arising from the 
 gross negligence of tlie servants of the corporation, is entitled to recover 
 against the latter. Reading R. R, Co. v. Derby, 0. S. i. 397. 
 
 114. Liability to gratuitous passenger for negligence. BarTcery.N. Y, C R. 
 R. Co., N. S. ii. 122. 
 
 115. Liability for damages to gratuitous passengers. Pei-kins v. iV. Y. C. 
 R. R. Co., N. S. ii. 318. 
 
 VL FoK Want of Propee Cahe in the Construction of Cabs, Teacks, &c. 
 
 116. It is the duty of railroad companies to use upon tlieir trains all im- 
 provements in machinery, and failure to do so is negligence, for which they 
 are liable. Costello v. S. J- B. R. R. Co., N. S. xii. 666. 
 
 117. A city railroad company will be liable for an injury occurring at a 
 street crossing, resulting from the work having been done in an unskilful 
 anrl improper manner, although such work meet the approval of a city in- 
 spector, appointed by an ordinance to oversee such vvorli. Delzell v. Ind. S( 
 Cm. R.R. Co., N.S.x. 204. 
 
 118. Where an injury results from want of care and caution on the part of 
 the agents of a railroad company, the company will be liable in damages, 
 though the party injured failed to exercise ordinary prudence, B. ^ 0. R. 
 R. V. State to use of Dougherty, N. S. xii. 259. 
 
 119. In considering the question of ordinary prudence on the part of a 
 person killed on a railroad track, the jury liave a right to consider the ordi- 
 nary disposition of men to guard themselves from danger. Id. 
 
 120. If the proximate cause of injury was the negligence of the company's 
 agents, the company is liable, though the remote cause was want of prudence 
 on the part of the injured person. Id. 
 
 121. It is negligence on the part of a railroad not to furnish comfortable 
 sitting room for all of its passengers unless the train is unexpectedly crowded 
 by a large party going a few miles. Quinn v. Illinois 0. R. R., N. S. x. 132. 
 
 VII. Street Cabs. 
 
 122. It is the duty of a railway company to cause its cars to stop for pas- 
 sengers to get on or off. Id. 
 
 VIII. Negliqenoe op Common Caebiee. 
 
 123. A carrier may by special contract limit his liability except as against 
 his own negligence. Farnham v. C. Sf A. R. R. Co., N. S. vii. 172. 
 
 124. Railroad may by contract exempt itself from liability for loss of goods 
 by negligence. Lee v. Marsh, N. S. iv. 445. 
 
 125. If negligence is proved, common carriers are liable though their duty 
 as such has ended. Goodwin v. Bait. S; Ohio R. R. Co., N. S. x. 404. 
 
 126. Responsibilities and duties of express companies, subject discussed. 
 
 127. A receipt signed by a common carrier for goods intrusted to him for 
 transportation for hire, which restricts his liability, will not be construed as 
 exempting him from liability for loss occasioned by negligence in the agencies 
 he employs, unless the intention to thus exonerate him is expressed in the 
 instrument in plain and unequivocal terms. Hooper v. Wells, Fargo ^ Co., N. 
 S. V. 16. 
 
 128. Ordinary negligence is sufficient to render common carrier liable. 
 Ilolladay v. Kennard, N. S. xi. 126. 
 
 129. In an action for death from negligence from oars striking a cart on 
 scales near railroad track, evidence was proper that after the accident the 
 tracks were removed to a greater distance. West Chester R. R. Co. v. McElwee. 
 N. S. xi. 200. 
 
 130. On a suit brought against express company for their neglect, it was 
 urged that the contract of the company was performed when the bill was put 
 into a notary's hands. American Express Co. v.' Dunlevy, N. S. iii. 266. 
 
 131. On this ground the express company is liable. Id. 
 
 132. Person suing for damage to goods must show that they were in good 
 condition when delivered to tho carrier. Smith v. Railroad Co., N. S. iv. 763. 
 
 133. Goods, if lost or stolen, brought infra hospitium. Burrows v. Trieber, 
 N. S. V. 444. 
 
 134. Forwarders responsible for all injuries to property, while in their 
 charge, resulting from negligence of themselves, their agents, or employees. 
 Sooper Y. Wells, Fargo ^ Co., N. S. v. 16. & > f J' 
 
NEGLIGENCE. 605 
 
 135. Riglit of common carrier to limit his common law liability by special 
 contract, canuot extend to his own negligence. Mxpresa Co. v. Moon, N. S. 
 vi. 504. 
 
 136. Carrier not liable where negligence of the conductor. Sawyer v. R. R. 
 Co., N. S.vi. 68. 
 
 IX. Negligence of Bailee. 
 
 137. Gratuitous bailee, responsible only for gross negligence. Phillips v. 
 Clark, 0. S. Tiii. 252. 
 
 138. Bailment for sole benefit of bailor involves liability of bailee only for 
 gross negligence. Spooncr v. Mattoon, N. S. vii. 696. 
 
 139. Gratuitous bailee not liable for carolessuesa of his servant in lighting 
 his pipe. Woodman v. Joiner, N. S. iv. 308. 
 
 X. Liability of Master for Negligence of Servant, and herein of Injury 
 OF ONE Employee by Another. 
 
 140. A person who came voluntarily to assist the servant of a railway 
 company doing some work on the railway was accidentally killed by the 
 negligence of some other servants of the company, the railway company 
 not having authorized the negligence, and the servants being persons of 
 ordinary skill and care for the work. Held, 
 
 1. That no action lay against the company by the personal representative 
 of the deceased under the 9 and 10 Vict., c. 93, and Degg v. The Midland 
 Railway Co., 0. S. v. 500. 
 
 2. That the above facts constituted a defence under the plea of not 
 guilty. Id. 
 
 141. Although it is settled that where one of several employees is injured 
 through the carelessness of another, the employer is not responsible, yet if 
 a railroad company employs a conductor who is unfit for the business, it is 
 not error to instruct the jury that the company are chai'geable with the con- 
 sequences. Frazier v. Penna. R. R., N. S. i. 60. 
 
 142. The carelessness of the officer who has the selection of competent 
 employees, is the carelessness of the company. Id. 
 
 143. But where a brakesman knew that a conductor of the railroad com- 
 pany was h.abitually careless, and yet chose to continue in service with him, 
 it was held that he could have no claim against the company for injuries 
 suffered from further carelessness of the conductor, even though the com- 
 pany also knew it. Id. 
 
 144. A person is not liable for the negligent act of his tenants, in throw- 
 ing coal dirt into a river, unless done by his authority or command. Little 
 Schuylkill Navigation Co. v. Richards, N. S. viii. 315. 
 
 145. Where an employee upon a ranlway is injured by the negligence of 
 the engineer of the company, and is himself guilty only of such neglect and 
 want of care, as would not have exposed him to the injury but for the gross 
 neglect of the engineer, and when the engineer might with ordinary care 
 have avoided the injury, he is not precluded from maintaining his action. 
 Railroad Co. v. Collins, N. S. v. 265. 
 
 146. What is gross neglect in the engineer may be determined by the court, 
 as a question of law, when there is no controversy in regard to the facts. Id. 
 
 147. Law and cases on negligence of fellow-servants, discussed. Railroad 
 Co. v. Collins, Note, N. S. v. 272. 
 
 148. Railroad company, defendant, may show that the accident occurred 
 from the failure of the plaintiff's fellow-servant to obey the company's in- 
 structions. Durgin v. Munson, N. S. v. 60. 
 
 149. Railroad not responsible to employee for personal injury arising from 
 negligence of switchman, if the company had used due care in his selection. 
 Oilman v. Railroad, N. S. v. 572. 
 
 150. When employee of sub-contraclors may recover for injury through 
 negligence of superior contractors. Curley v. Harris, N. S. vi. 61. 
 
 151. Builders not liable for injury to a workman through negligence of the 
 foreman. Oallagher v. Piper, N. S. iv. 316. 
 
 1-52. Persons performing public duty gratuitously and faking no personal 
 part in the work are not liable for negligence of those employed by them. 
 Cox V. Wi^e, N. S. iv. 316. 
 
 153. Railroad company liable for injury to a servant caused by defectiye 
 road-bed. Snow v.Housaionic R. R. Co., N. S. iv. 316. 
 
696 NEGLIGENCE. 
 
 154. Of boarding-house keeper's servant iu losing goods of guest, liabilitjj 
 of. Dausey t. Richardson, 0. S. iii. 123. 
 
 155. Wliere a party cli.arters a tow-boat for the season, the owners to fur- 
 nish the hands and to pay expenses, for a round sum ; he will not be respon- 
 sible for damage to a tow, caused by uegligence of the hands. Biasel v. Tor- 
 rey, N. S. xiii. 60. 
 
 156. A party erecting a brewery in the populous part of a city, will be 
 held to a higher degree of care and diligence, to prevent injury to surround- 
 ing property, by the construction and management of the chimneys and flues, 
 than if it was located iu the country. Gagg v. Vetler, N. S. xiii. 196. 
 
 157. The want of care or skill in the selection of the best plans for the 
 construction of the chimneys, will be deemed negligence and render him 
 liable for injuries resulting therefrom. Id. 
 
 158. The question of negligence is one of mingled law and fact, and when 
 the facts are undisputed to be decided by the court. Id. 
 
 159. Principal not liable for injury of one servant by the negligence of an- 
 other. Bonner v. R. R. Co., 0. S. iii. 637. 
 
 160. If defendant's negligence is such that injury could not have been 
 avoided, plaintiff's negligence is immaterial, and is not, properly speaking, 
 contributive. Daniels v. Clegg, N. S. xiii. 459. 
 
 161. Age and sex should be considered in deciding the question of negli- 
 gence. Id. 
 
 162. It is such negligence for a passenger in a railroad-car to allow his 
 arm to project out of the window, that if it is injured by coming in contact 
 with any external object he cannot recover, notwithstanding the injury may 
 have been partly caused by the negligence of the company in permitting an 
 obstacle to be too near the track. P. ^ C. R. R. v. Andrews, N. S. xiii. 566. 
 
 163. Where there is contributory negligence on the part of the plaintiff he 
 cannot recover for injury. Pittsburgh, F. W. & 0. Railway v. Krichbaum's Ad., 
 N. S. xiii. 780. 
 
 164. A refusal so to charge is error for which judgment will be reversed. Id. 
 
 165. Negligence is the want of such care as men of ordinary prudence 
 would use in similar circumstances. Mayor, ^c. v. Holmes, N. S. xiii. 780. 
 
 166. In the absence of contributory negligence on the part of the plaintiff, 
 a municipal corporation is liable for injuries resulting from the obstruction 
 of a street. Id. 
 
 167. The liability of a master for the negligence of his servants, extends 
 only to such acts or omissions as come within the scope of the servant's em- 
 ployment. Jewell V. Grand Trunk R. R., N. S. xiv. 858. 
 
 168. Where the action was for injuries to the plaintiff, by the overturning 
 of a stage-coach, in which she was a passenger, resulting from thenegligence 
 of the defendant's agent. Derwort and Wife v. Loomer,^ 0. S. i. 479. 
 
 169. The liability to make reparation for an injury by negligence rep- 
 aration for injuries to domestic animals by railroad companies in Ohio. 
 Kerwhaher v. The Cleveland, Columbus ^ Cincinnati R. R. Co., 0. S. iii. 841. 
 
 170. The master is liable for the negligent act of his servant. Gilmariin v. 
 Mayor, N. S. ix. 325. 
 
 171. In an action against a railroad company by an administrator of 
 one of its employees, the sole question is, was the defendant guilty of negli- 
 gence in employing an incompetent person as conductor on the train on 
 wliich the decedent, was killed. Baskin, Adm'r v. N. Y. C. R. R. Go. N. S. 
 xii. 666. 
 
 172. Where a city is the vendor of water to her citizens, the officers in 
 charge of the water-works and the city, stand in the relation of principal and 
 agent, and the city is liable for their negligence and irregularities. City of 
 Philadelphia v. Gilmartin, N. S. xii. 791. 
 
 173. Master not liable for injury from negligence of fellow-servant, though 
 of a different grade and engaged in different kind of work, if both were at 
 work on different parts of same general purpose. Faulkner v. R. R. Co., N. S. 
 vii. 509. 
 
 174. The rule that a master is not liable to a servant for injury received 
 through the negligence of a fellow-servant, applies to the parents of a minor 
 killed by negligence of a fellow-servant. Caldwell and Wife v. Broun et al., 
 N. S. vi. 762. 
 
NEGLIGENCE. 697 
 
 175. The rule that the master is not responsible to one of his servants, for 
 an injury inflicted through the negligence of a fellow-servimt, is not adopted 
 to the full extent of the English decisions, in the state of Kentucky, kail- 
 Toad Co. V. Collins, N. S. v. 2B5. 
 
 176. Master ordinarily responsible for negligence or want of skill, with 
 which his employees do his business. R:R. Go. v. Baum, N. S. vi. 717. 
 
 177. Master is responsible for injuries occasioned by the incompetency of 
 a fellow-servant, or defect in machinery. Id. 
 
 178. An action for damages suffered by defective highway. A verdict and 
 judgment against a city therein are evidence in action by the city against 
 the owner of lot fronting thereon. Boston v. Worthinglon, N. S. iii. 186. 
 
 179. One employee or servant has no right of action against the principal 
 or master for any injury sustained through the negligence of another em- 
 ployee or servant in the same service. Robert Mitchell v. P. R. R. Co., 0. S. i. 
 717. 
 
 180. The jury may allow exemplary damages against a railroad company, 
 if it appear tliat the property was destroyed or injured by the gross negli- 
 gence or wilful and wanton mischief of its agents. Vicksburg R. R. Co. v. 
 Patton, 0. S. vi. 457. 
 
 181. Evidence of knowledge of negligent acts and approval. Id. 
 
 182. Railroad company allowing another company to use its road is liable 
 for accidents to its own passengers from the other company's negligence. R. 
 R. Co. V. Barron, N. S. vii. 124. 
 
 XI. Liability of County anb Municipal Cokporation pob Negliqenoe in not 
 Repaikinq Highways, Bridges, &o. 
 
 183. It is the duty of county commissioners knowing a bridge to be unsafe 
 to render it safe, or else to close it up, so as to prevent the public using it. 
 Humphreys v. The County of Armstrong, N. S. viii. 62. 
 
 184. Town not liable for their unlawful or negligent acts. Mitchell v. Rock- 
 land, N. S. vi. 189. 
 
 185. Negligence of street or culvert contractor whereby injury is done to 
 property or person of citizen, how far municipal corporation liable. The City 
 V. Stone, 0. S. iv. 628. 
 
 186. City not liable for failure to keep a sewer in repair whereby water 
 flowed into a house not connected with the sewer. Barry v. Lowell, N. S. iv. 
 119. 
 
 187. The test in cases of injury from defects in highways. Walker v. West- 
 field, N. S. vi. 570. 
 
 188. Plaintiff must show defect in road and that no want of care con- 
 tributed to accident. Id. 
 
 189. Want of care on part of the plaintiff to be submitted to jury. Id. 
 
 190. When fact of road being slippery from ice upon it, is not a defect or 
 want of repair for which town will be liable. Stanton v. Springfield, N. S. vi. 
 570. 
 
 191. Travelling on Sunday may be proved in defence to action for injury 
 from defective way. Jones v. Andover, N. S. v. 382. 
 
 192. Liability of town under the statute of Massachusetts for injury tp 
 person on sidewalk. Day v. Milford, N. S. ii. 509. 
 
 193. Municipal corporation is responsible for damages resulting from the 
 manner of performing a ministerial duty, but not if the duty is of a judi- 
 cial nature. Kavanaugh v. Brooklyn, N. S. ii. 630. 
 
 194. Subject of damages resulting from grading, improving, and paving 
 streets discussed. Id. 
 
 195. Persona using a defective way for purposes of play only, cannot sue 
 the town for negligence. Blodget v. Boston, N. S. iv. 189. 
 
 XII. Liability of Owner op Real Estate fob, Defective Footways in front 
 OF Premises, and for Damages through Negligence of Contractor. 
 
 196. Where a person employs another, exercising a distinct employment, to 
 do work by a special contract, for a stipulated sum, and does not interfere 
 with the mode of performance, he is not responsible for the acts or negligence 
 of the contractor or his employees. Painter v. City of Pittsburgh, N. S. iii. 
 350. 
 
 197. This rule applies with full force to municipal corporations. Id, 
 
698 NEGLIGENCE. 
 
 198. The case of Bush v. Steinman, 1 Bos. & Pull, 404, rejected as author- 
 ity. Painter v. Oity of Pittsburgh, N. S. iii. 350. 
 
 199. Liability for acts of a contractor. Note to Painter y. Pittsburgh, N. S. 
 iii. 358. 
 
 200. There is no privity to make a sub-contractor liable to principal. Biasell 
 V. Roden, N. S. iii. 633. 
 
 201. A., being the owner of real estate situated upon a street in a city, 
 contracted with B. to erect a building thereon, which included an excava- 
 tion of the sidewalk adjoining. Excavations of a dangerous character were 
 made by the contractor, to which the attention of A. was called hy the city. 
 The city knew of the excavation of this and similar areas, and interposed no 
 objection though no express permission to make this one was given. C. fell into 
 the unprotected area and was injured. He brought an action against the 
 city to recover damages. A. had knowledge of the action, but was not 
 expressly notified to defend it; nor was he informed that the city would 
 look to him for indemnity. A judgment was recovered against the city, 
 which it was compelled to pay. In an action by the city against A., to be 
 reimbursed the amount which it had paid under the judgment. Held, assum- 
 ing that C. was injured through the fault of A., and that the city was not a 
 wrong-doer, A. is concluded by the judgment recovered against the oity. 
 No express notice to him of the pendency of the action was necessary. It 
 is enough that he knew it was pending and could have defended it. Chi- 
 cago V. Robbins, N. S. ii. 529. 
 
 202. The excavation, though not a nuisance in itself, became such on ac- 
 count of the improper manner in which it was made. The city is not, how- 
 ever, for that reason a wrong-doer, in such a sense as to lose its right of 
 action against A. No license from the city to leave the area open and un- 
 guarded can be presumed. Id. 
 
 203. The defendant was under an obligation to have the work done in 
 such a way as to save the city from damage and the public from harm. 
 He cannot escape liability by letting out the work to a contractor. The 
 work having been done in such a manner as to render the city liable in the 
 first instance, the defendant is answerable to it for the amount which it was 
 compelled to pay. Id. 
 
 204. The case of Ililliard v. Richardsen, 3 Gray, 849, distinguished, and the 
 case of Scammon v. The City of Chicago, 26 Illinois, 424, so far as it conflicts 
 with these principles, overruled. Id. 
 
 205. Liability of owner of a building for carelessness of workmen employed 
 in repairing. Braekett v. Lubhe, N. S. ii. 68. 
 
 206. One who is employed to do a piece of work and uses his own work- 
 men and his own discretion, is alone liable for injuries from negligence in 
 the manner of doing it. O'Rourke v. Hart, N. S. ii. 567. 
 
 207. Owning land and laying out street near mill, and building houses 
 thereon for operatives, not liable for injury from defect in street. Palmer 
 T. Manfg Co., N. S. vi. 382. 
 
 208. The owner of land is not liable for the negligence of one who con- 
 tracts to clear the land. Wright v. Holbrook, N. S. xii. 663. 
 
 209. Where the owner of premises neglects to sufficiently guard the en- 
 trance to the basement, he will be liable to a pedestrian, who iS injured by 
 falling into the same. Stratton v. Staples, N. S. xi. 596. 
 
 210. It was not the business of the owners to have the passage lighted, and 
 there was no contract or duty on their part that it should be in any other 
 condition than it was. Wilkinson v. Fairrie et al„ N. S. ii. 242. 
 
 211. Where the fence put round certain mill machinery, required by statute 
 to be fenced, had been broken, and the owner having notice of the defect was 
 guilty of negligence in not using reasonable care to have his machinery 
 properly secured, a servant who had entered into his employment when the 
 machinery was fenced, and who continued in the service after knowledge that 
 the fence was gone, in the reasonable expectation, induced by the expressions 
 of the owner and his manager to him, that the defect would be repaired, 
 vrithout negligence on his own part, met with an injury by reasonof the ma- 
 chinery being unfenced. Held, that he could maintain an action for the in- 
 jury against his employer. Holmes v. Clarke, N. S. ii. 107. 
 
NEGLIGENCE. 699 
 
 212. The owner of a pi-operty is not liable to a trespasser, or to one who 
 is on it by mere permission or suft'erance, for negligence of himself or ser- 
 vants, or for that which would be a nuisance in a public street or common. 
 Gillu V. Railroad Co., N. S. viii. 729. 
 
 213. How far negligence of plaintiff is a defence on a policy of fire insur- 
 ance. Johnson v. Berkshire Ins. Co.., N. S. ii. 379. 
 
 !il4. Responsibility of owner for damage done on the highway. N. S. iv. 
 140. 
 
 215. Where injury results from negligence of a contractor for the erection 
 of a house, the owner will not be liable. Pfau v. Williamson, N. S. xiv. 59. 
 
 XIII. Is Keeping Dangerous Animals. 
 
 216. The owner is liable for injury done by an animal which is known to 
 be fierce or dangerous, though it does not belong to a class ferse naturse. 
 Oakes V. Spaulding, N. S. vii. 551. 
 
 217. Where such an animal is the joint property of two persons, one of 
 whom allows the other to have charge of it, both are liable to a person in- 
 jured. Id. 
 
 218. Corporation liable for tort in keeping vicious dog. but scienter must be 
 proved as to some person having charge. Utiles v. Cardiff Co., N. S. iv. 315. 
 
 XIV. Want of Skill in Professional Men. 
 
 219. There is an implied obligation on a person professing to practice as a 
 surgeon that he should possess the ordinary skill of the profession. Wilmot 
 V. Howard, N. S. vi. 774. 
 
 220. Where, by improper treatment of a surgeon, the patient must have a 
 defective arm, the surgeon is liable, although the negligence of those in charge 
 of the patient aggravated the case. Such negligence affects only the amount 
 of damages. Id. 
 
 221. The law does not imply, on the part of a physician, an undertaking 
 to use the highest, but only reasonable, professional skill. Braunberger v. 
 Cleis, N. S. iv. 587. 
 
 222. What is reasonable care and skill must be determined in each case 
 from the circumstances. Id. 
 
 XV. Negligence in the Cake op Children. 
 
 223. A child not of an age or discretion to understand the danger in riding 
 upon the front platform of a street oar, cannot be charged with negligence 
 in so doing. East Saginaw Street Railway v. Bohn, N. S. xii. 745. 
 
 224. Although want of care cannot be imputed to a child for not avoiding 
 a passing vehicle, it may be charged upon those who have charge of the 
 child, if they suffer him to go unprotected where vehicles are passing, and 
 where care and forethought must be required, beyond what he is capable of 
 exercising. Mangam v. Brooklyn City R. R. Co., N. S. i. 631. 
 
 225. Negligence for injury to an infant child whilst in a public street unat- 
 tended. Kreig v. Wells, O. S. "iii. 442. 
 
 226. Negligence of person having charge of young child is the same as 
 his own would be if he were an adult. Wright v. Maiden R. R. Co., N. S. ii. 379. 
 
 227. What is primd facie evidence of such neglect. Id. 
 
 228. Sending child two years and a half old across a street, without an 
 attendant, is negligence. Callahan v. Bean, N. S. iv. 445. 
 
 229. It is negligence for parents to permit a child of tender years to w.inder 
 on a street where there are tracks. P. ^ R. R. R. Co. v. Long, N. S. xiv. 198. 
 
 230. To a child of tender years no contributory negligence can be imputed. 
 N. P. R. R. Co. ,. Mahony, N. S. viii. 315. 
 
 XVI. Injuries in ToWino and Navigation of Boats. 
 
 231. Where steamboat is injured by collision with a pile, the top of which 
 was below the surface of the water — remedy therefor, see Steamlowboat Co. 
 V. R R. Co., 0. S. V. 280. 
 
 232. The absence of a lookout on boat not of itself evidence of negligence, 
 if that omission did not contribute to the accident. Meller v. Smith, 0. S. 
 V. 314. 
 
 233. The fact that one vessel carries a prohibited light does not absolve 
 another irom caution and skill. Qreening v. Schooner Orey Eagle, N. S. vii. 226, 
 
 234. In navigating river, omission to observe the usage in proper time, 
 renders vessel liable for collision. The Vanderbilt, N. S. vii. 576. 
 
700 NEGLIGENCE. 
 
 235. Bailment, for sole benefit of bailor, renders bailee liable only for gross 
 negligence. Spooner v. Mattoon, N. S. vii. 696. 
 
 236. An omission to watch the light, and ascertain from its bearings whether 
 the vessel is in motion, is a neglect of ordinary care and skill. Greening v. 
 Schooner Gtey Eagle, N. S. vii. 226. 
 
 237. The owner of a tow-boat on a river, is not responsible for injury to 
 one of the tow, without proof of negligence, or want of skilly Taft v. Carter, 
 N. S. X. 540. 
 
 XVII. Obstructions to Navigation. 
 
 238. An owner of a wreck sunk in navigable waters is not liable for inju- 
 ries to navigators. Winpenny v. Philadelphia, N. S. i. 540. 
 
 XVIII. Injuries Rbceiveb where Work was being done on Sunda.y. 
 
 239. Suit for damages from injuries resulting from breaking of machinery, 
 where the work was being done on Sunday. McOaticlc v. Wasson, 0. S. iv. 637. 
 
 240. What is a work of necessity to be performed on Sunday. Id. 
 
 XIX. Injuries to Domestic Animals on Railroad Tracks. 
 
 241. If domestic animals wander on the track, whether with or without the 
 owner's knowledge, and are killed without wantonness or gross negligence 
 of the railroad company, the latter will not be responsible in damages for 
 their death. JST. P. R. R. Co. v. Rehman, N. S. v. 49. 
 
 XX. Contributory Negligence. 
 
 242. A party suing must show that he was not himself guilty of such neg- 
 ligence as contributed to the injury. Telfer v. Northern Railroad Co., N. Si 
 iii. 665. 
 
 243. If a passenger in a vehicle, upon a city street, voluntarily assumes a 
 position' which is not intended and ordinarily used for the conveyance of 
 passengers, and which is exposed to danger from the misconduct of others, 
 he himself contributes to an injury which he sustains by a collision produced 
 by the wilful or the negligent acts of a third party, without any fault of the 
 carrier; and he cannot recover against ihe latter. Spooner ■^ . Brooklyn City 
 Railroad Co., N. S. i. 572. 
 
 244. No matter how gross or evident may be the negligence of the driver 
 of a vehicle, if another, by his own negligence, exposes himself to injury 
 from the velnicle, he has no remedy. Mangam v. Brooklyn Oily Railroad Co., 
 N. S. i. 631. 
 
 245. Though there be negligence or fault on the part of the plaintiff, re- 
 motely connected with the injury, yet, if the defendant's fault or negligence 
 was the immediate and proximate cause of the injury, the plaintiff may 
 maintain his action for damages. Vicksburg R. R. v. Patton, 0. S. vi. 457. 
 
 246. If the plaintiffs injury is attributable in any degree to his own neg- 
 ligence, he cannot recover. Obrien v. The Philadelphia, Wilmington ^ Baltimore 
 R. R. Co., 0. S. vi. 361. 
 
 247. It is the general rule in the Amerioaft courts that, where both parties 
 are in fault, or guilty of the negligence which causes the loss, neither can 
 recover against the other. Reeves v. The Delaware, Lackawana ^ Western R.R., 
 0. S. vi. 565. 
 
 248. Plaintiff, a carman, was sent to defendants' premises to receive certain 
 goods, which were usually handed to him out of a room or door in a passage. 
 After waiting some time, he inquired of the defendants' gatekeeper for the 
 warehouseman. The gatekeeper directed him to enter at a certain door, 
 and follow the passage in a certain direction, and he would meet the ware- 
 houseman. Plaintiff followed the direction, and in going along the passage, 
 which was dark, fell down through the well-hole of a staircase into an under- 
 ground part of the premises. An action having been brought by plaintiff, 
 he was nonsuited, and, on a rule to set it aside, it was held, that the nonsuit 
 was rightly directed, on the ground that, if it was so dark that plaintiff could 
 not see, he ought not to have proceeded without a light ; and if it was suf- 
 ficiently light for him to see, he might have avoided the staircase, which was 
 a very different thing from a hole or a trap-door down which a, man might 
 fall, Wilkinson v. Fairrie et al., N. S. ii. 242. 
 
 249. In an action for negligence, plaintiff cannot recover, unless he was 
 free from any degree of negligence which contributed directly towards the 
 injury. Wilds v. The Hudson River Railroad Co., N. S. ii. 76. 
 
NEGLIGENCE. ' 701 
 
 2J0. Want of ordinary care on part of plaintiff is fatal to action for dam- 
 ages for defendant's negligence. Jacobs v. Duke, 0. S. iii. 443. 
 
 251. If the plaintiff's case discloses contributory negligence he cannot re- 
 cover. Penna. Canal Co. v. Bentley, N. S. a. 7-16. 
 
 2-52. Contributory negligence is matter of defence, and is. not to be affir- 
 matively disproved in order to entitle the injured party to recover. Robinson 
 V. X. r., N. S. xii. 664. 
 
 253. A person who is injured by another's negligence is not responsible for 
 the contributory negligence of a third person with vifhom he happens to be. 
 Id. 
 
 254. Upon a hearing in damages, defendant may show contributory negli- 
 gence to reduce damages to a nominal sum. Daily v. Railroad Co., N. S. v. (iO. 
 
 255. The plaintiff cannot recover for an injury resulting from the negli- 
 gence of the defendant, if, notwithstanding such negligence, he might have 
 avoided the injury by the exercise of care and prudence on his part, or if 
 his own want of such care and prudence, or that of the party injured, in 
 any way contributed directly to the injury. State of Maryland v. Railroad 
 Co., N. S. v. 397. 
 
 256. Effect of contributory negligence considered. Note to same, N. S. v. 405. 
 
 257. What Is such contributory negligence of plaintiff as will prevent re- 
 covery. Zoebisch v. Tarbell; N. S. v. 672. 
 
 258. Carrier not liable if person injured by his own negligence. HueUen- 
 kamp V. Citizens' R. R. Co., N. S. iii. 665. 
 
 259. Injury to plaintiff by his own negligence. Todd"^. Old Colony R. R. 
 Co., N. S. iii. 505. 
 
 260. Familiarity with a dangerous place is to be regarded in determining 
 a person's negligence or care in passing it. Smith v. Lowell, N. S. iii. 251. 
 
 261. Riding on platform of horse-car is not such negligence that the court 
 will prevent a recovery. Meesel v. L. ^ B. R. R. Co., N. S. iv. 189. 
 
 262. Crossing railroad track without looking if a train is coming, is not 
 conclusive evidence of negligence in plaintiff. Circumstances under which 
 the company held liable. Warren v. R. R. Co., N. S. iv. 316. 
 
 268. In an action whose gravamen is negligence, it is the duty of the plain- 
 tiff to show a case clear of contributory negligence. Waters v. Wing, N. S. 
 viii. 758. 
 
 264. An action for injury to plaintiff's house will fail if it appear that the 
 injury was partly the result of water dripping from the house itself. Martin 
 V. Simpson, N. S. iii. 816. 
 
 265. It is not contributory negligence on the part of a person crossing a 
 county bridge, knowing it to be unsafe, in the absence of distinct notice to him 
 or the public not to use it. Humphreys v. The County of Armstrong, N. S. viii. 62. 
 
 266. Contributory negligence on the part of a person in charge of a child 
 under five years of age will prevent a recovery by the parent for the death 
 of the child. B. ^ 0. R. R. v. The State, N. S. ix. 453. 
 
 267. Where the plaintiff's negligence will bar his recovery for damage re- 
 sulting mainly from negligence of defendant. Note to Wilds v. Hudson River 
 Railroad Co., N. S. ii. 89. 
 
 XXI. Action for Damages — the Evidence therein, and herein or what 
 ARE Questions or Law and what of Fact. 
 
 268. Negligence and the rule of damages therefor. Subject discussed. N. 
 S. xiv. 265. 
 
 269. As a general rule, the question of negligence is for the jury. Crissey 
 T. Hestonville Railway, N. S. xiv. 124. 
 
 270. Where, negligence is concurrent, a child will not be held to the same 
 degree of care as an adult. Id. 
 
 Til. Whether permitting a child of thirteen to stand on front platform of 
 a street oar, and to get off from it, was negligence, is for the jury. Id. 
 
 272. Negligence is a mixed question of law and fact. Briggs v. Taylor, 0. 
 S. V. 239. 
 
 273. Negligence is a question for the jury where the fact is fairly doubt- 
 ful. In other cases it is a question of law. Wilds v. The Hudson River R. R., 
 N. S. ii. 76. 
 
 274. Is for the jury. Huelsenlcamp v. Citizens' R. R. Co., N. S. iii. 633. 
 
 275. Peculiarly a question of fact. Wooden v. Austin, N. S. vii. 763. 
 
702 ' NEGLIGENCE. 
 
 276. Action for, by aervant of landlord working an elevator — whether in- 
 cident to business that men should go up and down with the merchandise. 
 Stewart v. College, N. S. vi. 382. 
 
 277. What is material and admissible in such case. Id. 
 
 278. Where a person in crossing a railroad traclc is injured by collision 
 with the train, the fault primd, facie is his own, and he must show atlirnia- 
 tively that it is not, before he can recover. Telfer v. Northern R. R. Co., N. 
 S. iii. 665. 
 
 279. The rule is the same in cases of negligence as in other cases. If 
 plaintiff's own evidence establishes a defence, before he rests he must rebut, 
 or he will be nonsuited. Robinson v. N. Y. C. R. R., N. S. xii. 664. 
 
 280. A complaint against a railroad to recover for negligence must dis- 
 tinctly allege that the injury occurred without the fault or negligence of the 
 plaintiff. Maxfield v. 0. J. | L. R. R. Co., N. S. xiii. 261. 
 
 281. Where the plaintiff has been guilty of a plain act of carelessness 
 which has contributed to an accident, it is the duty of a court, as matter of 
 law, to say that he cannot recover. Lewis v. Baltimore ^ Ohio R.R.,N.S. xiii. 284. 
 
 282. Plaintiff desiring to cross a street in Baltimore, after dark, the street 
 lamps being lighted, found a train of railroad cars blocking the crossing. A 
 crowd had collected waiting for an opportunity to cross, and while plaintiff 
 was waiting, two women had been prevented by the police from creeping un- 
 der tlie couplings, but several persons had climbed up the platforms and thus 
 crossed. After waiting about five minutes plaintiff started to get on the plat- 
 form, with the intention of crossing in the same manner, when the train 
 started, and his leg was crushed between two cars. Held, that such au act 
 was contributory negligence, and he could not recover. Id. • 
 
 283. The fact that the railroad company was negligent in thus blocking a 
 street crossing contrary to the city ordinances, did not relieve plaintiff from 
 the duty to use ordinary care to avoid danger. Id. 
 
 284. A party is not answerable in damages for the reasonable exercise of 
 a right unless upon proof of negligence, unskilfulness, or malice. Phila. ^ 
 
 . Reading R. R. v. Terger, N. S. xiii. 396. 
 
 285. Railroad not liable for buildings burned by sparks from au engine 
 used in the ordinary way. Id. 
 
 286. Actionable negligence exists only when a party whose negligence oc- 
 casions the loss owes a duty from contract or otherwise to the party who 
 suffers. Kohl v. Lose, N. S. Siii. 396. 
 
 , 287. A purchaser who relies on a tax receipt given by a collector of taxes 
 for the amount due in buying land, cannot maintain an action against the 
 collector if he suffers a loss. Id. 
 
 288. A tax collector is not required to give certificates that property is 
 discharged from taxes, and any one relying on his receipts does so at his 
 peril. Id. 
 
 289. It is competent for a plaintiff, on the trial of au action against a rail- 
 road company for damages done by them to his property by the negligent 
 and careless running of their engine and cars, to introduce evidence to show 
 that the general character of the engineer in charge of the train, when the 
 injury was done, was that of a reckless and untrustworthy agent. Vicksburg 
 R. R. V. Patton, 0. S. vi. 457. 
 
 290. To entitle a plaintiff to recover against a railroad for injuries sus- 
 tained, he must show that they were directly caused by want of ordinary 
 care and prudence on the defendant's part, and could not have been avoided 
 by the reasonable care and caution of himself. B. ^ 0. R. R. Co. v. Fiiz- 
 patrick, N. S. xi. 596. 
 
 291; If plaintiff has exercised reasonable care, he is entitled to recover for 
 defendant's negligence, though he has been guilty of some want of caution. Id. 
 
 292. The question of negligence or want of ordinary care, is one of fact 
 for the jury. Id. 
 
 293. Accident and injury, primd facie evidence of — what company must 
 show. Railroad v. Worthington, N. S. v. 446. 
 
 294. Province of the court and jury in such cases. Id. 
 
 295. Kailroad company responsible for flagman's negligence at a, private 
 crossing over thei? track in city used by public as a highway. Sweeneu v. Rail- 
 road Co., N. S. V. 573. 
 
NEGLIGENCE. 703 
 
 206. Action for injury causing almost immediate deatli survives to admiij- 
 istrator. Bancroft v. Jiailroad Co., N. S. vi. 61. 
 
 297. Proof of due care on tlie plaintiff's part in an action for negligence, 
 will not raise a presumption thereof by defendants, or change the burden 
 of proof. Barron v. JF'erry Co., N. S. vi. 61. 
 
 298. No legal presumption of negligence when crops fired by engine. 
 Smith T. R. R. Co., N. S. vi. 62. 
 
 299. In an action on the case, the declaration alleged that the defendants 
 were proprietors of certain railways, and possessed of certain carriages for 
 the conveyance of horses, &c., for hire; that, according to the known course 
 of business by the defendants, it was the duty of the defendants to cause due 
 care to be talien in order to guard against friction arising during the journey 
 from the wheels and axles of the said carriages, &c. ; and that in order to 
 preserve such carriages, &c., from being injured by such friction, the persons 
 employing the defendants had no power over the management of the said 
 carriages, nor were they permitted to do any such things as were necessary 
 to guard against such friction ; that the plaintiffs delivered to, and the de- 
 fendants received divers horses from, the plaintiffs to be carried by the de- 
 fendants in their carriages for reward, according to the known course of 
 business so practised as aftiresaid, except so far as the same was altered by 
 certain terms expressed in a certain ticket then by the defendants prepared 
 and produced to the plaintiffs, and which ticket expressed that it was issued 
 " subject to the plaintiffs undertaking to bear all the risks of injury by con- 
 veyance and other contingencies ; " and that the plaintiffs were to see to the 
 efficiency of the carriages, and that the defendants were not to be responsible 
 "for any damages, however caused, to horses," &c., travelling upon the said 
 railways; that the defendants did not take due nnd proper care to provide 
 against friction of the wheels and axles, but altogether grossly and culpably 
 neglected so to do ; by reason whereof, and of the gross and culpable negli- 
 gence of the defendants, the wheels of the carriage in which the horses 
 svere, took fire, and that after such fire had been produced, and the carriage 
 had become dangerous, &o., and after the defendants had notice thereof," &o., 
 they recklessly, culpably, and with gross negligence, and against the will of 
 the plaintiffs, continued to carry the said liorses, &c., in the said carri.ige, 
 until the axle became further heated, and broke, whereby the carriiige was 
 thrown off the rails and the horses were injured: It was held, that the neg- 
 ligence imputed, when called "gross negligence" or "culpable negligence," 
 was within the exemption from responsibility provided by the contract, and 
 that the declaration therefore disclosed no cause of action, and was bad in 
 arrest of judgment. Austin v. The Manchester Railway, 0. 8. i. 114. 
 
 300. A judge is not bound to submit to a jury questions of fact which 
 uniformly result from the course of nature ; this uniformity of nature be- 
 comes a rule of law. Id. 
 
 301. Meaning of the phrases, "ordinary care" and "gross negligence." 
 Authorities cited and discussed. Briggs v. Taylor, 0. S. v. 239. 
 
 302. In action for negligence it is the duty of the judge charging the jury 
 to define the legal signification of negligence, and then to refer the question 
 of fact to the jury to say where and to whom the negligence attaches. Reeves 
 V. The Delaware, Lackawanna ^ Western R. R. Co., 0. S. vi. 565. 
 
 303. In an action against a railway company for negligence, in consequence 
 of which the plaintiff has suffered injury, it is for the judge to decide whether 
 there is any reasonable evidence of negligence proper to be left to the jury. 
 Cornman v. The Eastern Counties Railroad Co., 0. S. viii. 173. 
 
 304. A railway company kept at their station a weighing machine on a 
 platform close to the railway. On a particular occasion the plaintiff, being 
 there to receive a parcel, was thrown against the weighing machine and in- 
 jured, Beld, that whether there was evidence that the company were guilty 
 of negligence in keeping the weighing machine where they did, was to be 
 determined by the judge, on consideration of all the circumstances of the 
 case. Id. 
 
 305. It is a question of law how far the evidence in' the case will justify a 
 finding of gross negligence. Bannon v. R. R. Co., N. S. v. 470. 
 
 306. The law requires the same degree of care and diligence towards all 
 persons, without distinction of age or capacity, and the same rule of damages 
 applies to all. Id. 
 
704 NEGLIGENCE— NEGOTIABLE BONDS. 
 
 307. When the facts are agreed, what constitutes negligence is a question 
 of law. Kansas Pacific Railroad v. Butts, N. S. x. 608. 
 
 308. Where the question is one of law for the court, it is in a case which 
 presents some prominent and decisive act, not depending upon surrounding 
 circumstances for its quality. B. ^ 0. R. R. Co. -v.Fitzpatrick, N. 8. xi, 590. 
 
 309. Causing death of wife — action by husband as administrator — measure 
 of damages, Dickins v. The JST. Y. Central R. R., N. S. i. 58. 
 
 310. Death by, subject discussed, 0. S. vii. 1. 
 
 311. Whereby death is caused — statutory remedy by father of deceased 
 for damages — actual damage must be shown, see Duckworth v. Johnson, 0. S. 
 vii. 630. 
 
 312. Action against a railroad company for negligence in causing death. 
 .K. R. Co. y.McCloskey's Adm'r, 0. S. iii. 412. 
 
 313. Causing death — action under the statute of Ohio must be brought in 
 the state where the wrongful act causing the death occurred. Campbell y. 
 Rogers, 0. S. iv. 747. 
 
 314. The jury in estimating damages under the Act of April 15, 1851, may 
 take into consideratii}n the age, habits, health, and pursuits of the deceased. 
 The measure of damages is the absolute. value of the life lost, measured 
 according to its own merits, and not according to the necessities of the kin- 
 dred. Pennsyioania Railroad Co. v. McCloskey's Administrator, 0. S. iii. 412. 
 
 315. The principle that allows an action for death of a freeman caused 
 by negligence, discussed and re-stated. Id. 
 
 316. The personal representatives may continue an action commenced 
 under the statute, and recover the very damages to which deceased would 
 have been entitled, had. he survived until verdict. Id. 
 
 317. Where a person is killed by the act of another, under such circum- 
 stances that the deceased, had he survived, could have maintained an action 
 for the injury, an action can be maintained under the 9 and 10 Vict., ch. 93, 
 sees. 1 and 2, for the benetit of the surviving relatives, in respect of an injury 
 arising from a pecuniary loss occasioned by the death, although the same 
 
 ■pecuniary loss wjould not have resulted to the deceased had he lived. I'ym 
 v. Great Northern Railway Co., N. S. ii. 234. 
 
 318. The loss of the benefit" of a superior education and the enjoyment of 
 greater comforts and conveniences of life, is a pecuniary loss for which the 
 wife and children of the person killed may maintain an action under the 
 statute, where the income of the deceased wholly ceases with his death, or 
 where the premature death prevents the deceased from having made the 
 extra provision for his family which he might be reasonably expected to 
 have made had he-lived out his natural life. Id. 
 
 319. Master and servant. The measure of da.mages for the loss of a minor 
 child by negligence, is the pecuniary value of the child's services while 
 under age. Caldwell and Wife v. Brown et al., N. S. vi. 752. 
 
 820. In an action by surviving relatives for death caused by negligence, 
 the measure of damages is the pecuniary loss merely, and in estimating that, 
 the chances of health and life are to be considered as well as the value of 
 services. Telfer v. Northern R. R. Co., N. S. iii. 666. 
 
 321. Damages for death depend very much on the facts of the particular 
 case. It is not necessary that the next of kin entitled to damages should 
 have been entitled to support by the decedent. R. R. Go. v. Barron, N. S. 
 vii. 124. 
 
 322. Husband may sue for death of wife. Measure of damages. Hyatt v. 
 Adams, N. S.vii. 191. 
 
 NEGOTIABLE BONDS. 
 
 1. Where bonds and coupons made in Ohio are payable in New York, the 
 courts of '•New York will have jurisdiction of an action on the bonds. Con- 
 necticut Ins. Co. v. Cleveland, ^c. Railroad Co., N. S. iii. 448. 
 
 2. A railroad company authorized its president to issue bonds secured by 
 a mortgage on the road and its franchises. The bonds were issued by him, 
 he signing them in his own name simply. Held, not the bonds of the com- 
 pany, but the transaction will be regarded, in equity, as an equitable mort- 
 gage. Miller et al. v. Rutland R. R. Co., N. S. iii. 616. 
 
 8. Authority to subscribe for stock " as fully as any individual," authorizes 
 issue of bonds in payment. Seybert v. Pittsburgh, N. S. iii. 629. 
 
NEGOTIABLE BONDS— NEMO BIS VEXAEI DEBET. 705 
 
 4. Bonds payable to bearer, though under seal, are negotiable instruments. 
 JUercer Co. v. Hackett, ^c, N. S. iv. 115. 
 
 5. If negotiable bonds of a class which are vendable in market at estab- 
 lished rates are to be issued in payment, accompanied with a sinking fund, 
 to give them greater market value, such bonds are to be treated as if they 
 were chattels and things in esse. Oily of Memphis v. Brown, N. S. xi. 629. 
 
 6. What may be considered such, and particularly of negotiable bonds. 
 Note to Jackson v. Y. <$• 0. Railroad Co., N. S. ii. 595 ; and Supplementary Note, 
 N. S. ii. 748. 
 
 7. Indorsement of negotiable paper '^ for collection" restrains its negotia- 
 bility. Sweeney v. Easter, N. S. iv. 115. 
 
 8. Holders are presumed to be bonii, fide and for value. Bronson v. La 
 Crosse, ^c, R. R. Co., N. S. iv. 767. 
 
 9. Negotiability will not validate obligations which are not binding because 
 of want of power to make them. Clark v. City of Des Moines, N. S. vi. 146. 
 
 10. Without statutory provision, no action can be maintained in the name 
 of an assignee, upon interest coupons, which contain no negotiable words, 
 nor language from which it can be inferred, that it was the design of the 
 corporation issuing them to treat them as negotiable paper, or as creating 
 an obligation distinct from the bonds to which they were severally attached 
 when the bonds were issued. Jackson v. The Y. ^ C. Railroad Co., N. S. ii. 585. 
 
 11. The negotiability of such coupons is a question of law, to be deter- 
 mined, from the papers themselves, and proof of custom, as to the negoti- 
 ability of them, is inadmissible. Id. 
 
 12. The bonds being specialties, the remedy for breaches thereof is by an 
 action of debt or of covenant ; not being legally assignable, no action is main- 
 tainable in the name of the holder, though he be assignee. Id. 
 
 13. It is indispensable that the cause of action exist at the time the action 
 was commenced. The statute of Maine of 1856, ch. 248, does not remedy this 
 defect. Id. 
 
 14. Bonds of a railroad company, under its corporate seal or not, payable 
 to A. B., or the holder thereof, are negotiable. The Connecticut Ins. Co.y. The 
 Cleveland, ^c, Railroad Co., N. S. iii. 443. 
 
 15. If interest coupons, annexed to a bond of this description, are not 
 paid when due, interest should be allowed. Id. 
 
 16. An indorser of such bond "for value received," is not to be deemed 
 an accommodation indorser. Id, 
 
 17. Power of corporations to make such indorsements or guarantees of 
 each other's bonds ; the consideration therefor, and the rights of holders of 
 the bonds. Id. 
 
 18. Holder of coupon payable to bearer may recover amount with interest 
 and exchange. Gelpcke v. Dubuque, N. S. iii. 629. 
 
 NEGOTIABLE INSTRUMENTS. 
 
 Bonds payable to bearer, though under seal, are negotiable instruments. 
 Mercer Co. v. Hackett, SfC, N. S. iv. 114. 
 
 NEGROES. 
 
 1. Free negroes, born in United States, are citizens thereof, and may become 
 citizens of a state by residence. Smith v. Moody, N. S. vi. 714. 
 
 2. An Act of Congress which says, "no person shall be excluded from the 
 cars of a railroad on account of color," means that colored persons shall 
 travel in the same cars as white ones. R. R. Co. v. Brown, N. S. xiii. 326. 
 
 3. Where a negro woman, who purchases a first-class dinner ticket on a 
 Mississippi steamboat, is entitled to sit at the same table as the other passen- 
 gers. Coger v. JV. W. Union Packet Co., N. S. xiii. 162. 
 
 4. A negro apprentice cannot recover damages from his master for enlisting 
 Mm as a substitute for his son, who had been drafted. Gent v. Cole, N. S. xiii. 256. 
 
 5. The Civil Rights law is constitutional. U. S. v. Rhodes, N. S. vii. 233. 
 
 6. Negro suffrage in Pennsylvania under the constitution of 1790 — the 
 subject discussed, 0. S. vi. 238. 
 
 7. Negro suffrage — free colored persons residing in Maine for three months, 
 being otherwise qualified, are electors in that state, 0. S. vi. 123. 
 
 NEMO BIS VEXARI DEBET. 
 
 Where the maxim does not apply. Amsinck t. Harris, N. S. Ti. 100. 
 45 
 
706 NEPHEWS— NEW TEIAL. 
 
 NEPHEWS. 
 
 Devise to "all my nephews," &o., does not include nephews of testatrix's 
 husband. PauV) Estate, N. S. ii. 447. 
 
 NEUTRAL'S TITLE TO SHIPS OF BELLIGERENTS. 
 
 Opinion of Attorney-General of the United States as to, 0. S. T. 94. 
 
 NEUTRALITY LAWS. 
 
 1. A judge of the United States has power, on just grounds of suspicion, to 
 require bond to observe the neutrality laws. United States t. Quitman, 0. S. ii. 
 645. 
 
 2. A grand jury charged with inquiring as to the existence of an organiza- 
 tion whose object was the invasion of the territory of a friendly power, pre- 
 sented that the principal witnesses examined before them, and who were 
 rumored to be the leaders in the unlawful enterprise, had refused to answer 
 questions propounded to them on the subject, on the ground that it wiuld 
 criminate themselves. The grand jury also presented that, though they 
 were unable to elicit any facts on which to base an indictment or to show 
 the existence of any actual military organization, yet that they believed that 
 some such organization was in contemplation. Held, that there were suffi- 
 cient grounds for requiring from the parties who declined to testify before 
 the grand jury, bonds to observe the neutrality laws of the United Slates. Jd. 
 
 NEW England protective union. 
 
 Where no credit is given, and no expectation, originally, of looking to one 
 partner for debts incurred by the other, no recovery against the former can 
 be had. Chapman ^ Co. v. Devereux ^ Noyea, 0. S. ix. 419. 
 
 NEW JERSEY. 
 
 1. By the agreement between the states of Pennsylvania and New Jer- 
 sey made in 1783, the juridical investigation and determination of criminal 
 oiFences committed on the river Delaware are specially provided for. Com- 
 monwealth V. Andrew B. Prazee, 0. S. v. 167. 
 
 2. Jurisdiction over Waters of Hudson. — By the compact between the states 
 of New Jersey and New York, approved by Congress- in the year 1834, the 
 state of New York has exclusive jurisdiction over all the waters of the Hud- 
 son river, and of and over the lands covered by the said waters, to the low- 
 water mark on the New Jersey shore. On an indictment in New Jersey for 
 obstructing the free navigation of the said river, by placing, sinking, and 
 lodging in the said river certain ships, schooners, boats, and other vessels, 
 the jury rendered a general verdict of guilty, but found as a fact that the 
 defendants had, within the times specified in the indictment, placed and pro- 
 cured to be placed vessels and wrecks of vessels both above and below the 
 low-water line, which were an interruption to navigation. A new trial was 
 granted. The State v. Babcoch, N. S. i. 753. 
 
 3. Observations on the nature and ground of the compact between the 
 states. Id. 
 
 NEWSPAPER ARTICLE. 
 
 How far evidence of notice. Denccla v. Wright, 0. S. ii. 510. 
 
 NEW TRIAL. 
 I. Generally and herein of Misbieection of the Court. 
 
 1. Now trial on the ground of alleged misdirection of the court, and bill of 
 exceptions as to. Coleman v. Edwards, 0. S. iv. 695. 
 
 2. Judge's commentaries on evidence are not the subject of exception, nor 
 is his omission to notice a portion of it, unless specially requested to charge 
 on it. Powell v. Jones, N. S. iv. 1 89. 
 
 3. New testimony to prove testimony already given to be untrue, is not 
 cumulative. Jd. 
 
 4. Supreme Court of Vermont may grant. Northfield Bank v. Brown, N. S. 
 iv. 256. 
 
 5. The rule is that where a general verdict depends upon several questions, 
 some of which could not have been affected by any error in the ruling of the 
 court, the verdict shall be set aside and a new trial granted only on those 
 points necessary to correct the error or mistake. Janvrin v. Foga, N. S. xi. 
 .334. 
 
NEW TKIAL. 707 
 
 6. Where the error in ruling could not have effected the verdict a new 
 trial will not be granted. Janvrin v. Fogg, N. S. xi. 334, 
 
 7. A court of equity will not award a new trial at law, where the defence 
 ia legal. Walker v. Kretsinger, N. S. ix. 387. 
 
 8. Motion for a new trial no waiver of exceptions. United Slates v. Dashiell, 
 N. S. vi. 442. 
 
 9. The verdict of a jury should not be interfered with if there was no error 
 of law on the part of the court. McKinley v. Lamb, N. S. xii. 697. 
 
 10. Courts of inferior and limited jurisdiction have no power to set aside 
 the verdict of juries found in their oouvts, and to grant new trials in the ab- 
 sence of authority by statute or long usage. Bartling v. Jamison, N. S. ix. 200. 
 
 11. In granting new trial on issues of fact, the court is guided by rules iu 
 Buita at law. Mark v. Cong. Sodety, N. S. iv. 439. 
 
 12. On the motion for new trial, the instruction of the court and the facts 
 detailed in the motion will be considered solely in their relations to questions 
 made on the trial below. State v. Tool, N. S. i. 244. 
 
 II. Weight of Evidence. 
 
 18. After two trials, with like finding, the court will not set aside the ver- 
 dict merely because the evidence is deemed greatly preponderating against 
 it. Gilligan v. R. R. Co., 0. S. iii. 444. 
 
 14. To entitle the defendant to a new trial on the ground that the plaintiff 
 has not proved his case, it must appear that the cause is unproved in its 
 entire scope. Updike v. Abel, N. S. x. 747. 
 
 15. If no error was committed upon the trial of a feigned issue, the verdict 
 being against the weight of the evidence is no ground for a new trial. Mc- 
 
 - Kinley v. Lamb, N. S. xii. 597. 
 
 16. Where there is a conflict of testimony, and the facts if believed by the 
 jury would warrant the verdict, the court will not set it aside. Williams v. 
 Phoenix Ins. Co., N. S. xiii. 125. 
 
 III. Excessive and Inadequate Damages. 
 
 17. New trial for inadequate damages. Richards v. Sanford, 0. S. v. 313. 
 
 18. New trial will not be granted even if the ruling of the judge was 
 wrong, if, upon the whole case, justice has been done. Brown v. Goldsmith, 
 0. S. V. 304. 
 
 19. The court will order a new trial where the amount of damages shows 
 that the jury were influenced by passion and prejudice. Union Pacific Rail- 
 road V. Sand, N. S. x. 478. ' 
 
 IV. Inadmissible Evidence. 
 
 20. Will be granted, whfere, in an action for assault and battery, the jury 
 were left to consider, a charge of false swearing made by the defendant 
 against plaintiff, as au element to enhance the damages. Pulver v. Harris, N. 
 S. xi. 191. 
 
 21. As a general rule, where improper evidence has been received after 
 objection, the party prejudiced by it has a right to a new trial. Kay v. 
 Thomson, N. S. x. 594. 
 
 22. Will not be granted on the ground that a record had been admitted in 
 evidence without being properly authenticated, if the proper evidence of its 
 authentication is furnished to the court. Hutchins v. Gerrish, N. S. xii. 661. 
 
 V. After-Discovebed Evidence. 
 
 23. Will not be granted for newly-discovered evidence merely cumulative 
 or where there is laches or after judgment. Sheldon v. Slryker, N. S. iv. 256. 
 
 24. For after-discovered evidence. Ordway y. Haynes, N. S. vii. 316. 
 
 25. Should not be granted on ground of newly-discovered evidence, unless 
 its effect ought to have resulted in a different verdict. Cleveland R. R. Co. v. 
 Long, N. S. xiii. 781. 
 
 VI. SuEPRISE. 
 
 26. Will not be granted on the ground of surprise in that a witness of ad- 
 verse party testified on the trial differently from what he did on a former 
 trial, when no effort was made to impeach his testimony. Abeles v. Cohen, N. 
 S. xi. 268. 
 
 VII. Interest, Mistake, and Misoondijct of Juror. 
 
 27. It is now fully settled that the testimony of a juror cannot be received 
 
708 NEW TEIAL. 
 
 for the purpose of setting aside a verdict on the ground of a mistake or mis- 
 conduct of the jury. Maight v. Turner, 0. S. i. 569. 
 
 28. New trial on ground of previous formation of opinion by juror. Wade 
 V. The State, 0. S. ii. 319. 
 
 29. Where a juror had formed and expressed an opinion as to the guilt of 
 the prisoner, before being impanelled, which 'fact was unknown to the de- 
 fendant, a new trial should be granted. Id. 
 
 30. What must show to obtain, by reason of interest in a juror. Jameson 
 T. R. R. Co., N. S. vi. 190. 
 
 31. Nor where a bystander hands a juror five dollars which he owes him. 
 Martin v. People, N. S. xi. 130. 
 
 32. Conversations had with jurors about the ease on trial by the friends 
 of the prevailing party, intended and calculated to influence the verdict, con- 
 stitute a sufficient cause to warrant the court in granting a new trial, even 
 though not shown to have influenced the verdict in point of fact, and though 
 they were had without the procurement or knowledge of the prevailing 
 party, and listened to by the jurors without understanding that they were 
 guilty of misconduct in so doing. McDanieU v. McVaniels, N. S. vii. 729. 
 
 33. A motion for a new trial, upon the ground of misconduct by jurors 
 during the trial, need not contain an averment that the misconduct was un- 
 known to the moving party before the jury retired. It would seem to be 
 otherwise when the objection to the juror is some matter which existed before 
 the trial commenced, and which might have been a cause for challenge. Id. 
 
 34. The fact that the moving party neglected to inform the court, before 
 the jury retired, of misconduct on the part of jurors during the trial which 
 came to his knowledge, would not, if proved, necessarily, as a matter of law; 
 defeat the motion for a new trial, but would be one circumstance to be con- 
 sidered with others by the court in determining whether, in their discretion, 
 to set aside the verdict. Id. 
 
 35. A motion to set aside a verdict for the misconduct of a juror, and a 
 motion for a new trial, can be reserved together for the advice of the court. 
 Tomlinson v. The Town of Derby, N. S. xiv. 543. 
 
 VIII. Within the Disoeetion of the Court, and not Revisable by Superiok 
 Court. 
 
 36. The action of the primary court on a motion for a new trial is not 
 revisable in the appellate court. Franklin v. The State. 
 
 37. Granting or refusing a new trial is always in the discretion of the court 
 trying the cause. Anthony v. Eddy, N. S. viii. 445. 
 
 38. Where defendant died after verdict, and pending a motion for a new 
 trial on his behalf, the ordering the new trial was suspended to enable the 
 plaintiff to apply to the court to impose terms on making the rule absolute. 
 Kay V. Thompson, N. S. x. 594. 
 
 39. Upon a writ of error the court has no power to hear a motion for a 
 new trial. Fralich v. The People, N. S. xii. 669. 
 
 IX. In Criminal Cases. 
 
 40. The mere fact of a bystander handing a slip of paper to a juror during 
 the trial of a capital case is no ground for a new trial. Martin -j. People, N. 
 S. xi. 130. 
 
 41. Power of court to grant new trial in criminal cases. Gaffy v. Common- 
 wealth, 0. S. ii. 182. 
 
 42. A new trial will not be granted to prove the dying declarations of the 
 deceased, that he did not wish the accused hurt. Adams v. People, N. S. 
 ix. 58. 
 
 43. Where the court fail to agree, the prisoner is in the same position as 
 if there had been no trial, and a re-trial must be had. League v. State, N. S. 
 xii. 196. 
 
 44. Where one charged with murder and is convicted of manslaughter, and 
 the accused obtains a new trial, he will only be tried for the offence of which 
 he was found guilty. Brennan v. The People, 0. S. iii. 636. 
 
 45. In criminal cases can be had only upon that count of the Indictment 
 on which the prisoner was convicted. Although the same offence be charged 
 in different forms in two counts of an indictment, yet, if the prisoner be ac- 
 quitted upon one count and convicted upon the other, and a new trial is 
 granted in general terms, he cannot again be put to answer that count upon 
 which he was acquitted. Campbell v. The State, 0. S. i. 380. 
 
NEW TEIAL— NON-SUIT. 709 
 
 46. If the jury, pending the trial of a felony, disperse, though with the con- 
 sent of the prisoner, a new trial will be awarded. Wiley v. The State, 0. S. 
 i. 380. 
 
 47. In a case involving no questions of law, the plaintiff's claim was sup- 
 ported almost exclusively by his own testimony, and was encountered by cir- 
 cumstantial evidence on the part of the defendant. A common jury having 
 found for the plaintiff, a new trial was granted on affidavits disclosing fresh 
 evidence. At the second trial this evidence was adduced, but the second 
 jury (a special one) found for the plaintiff's. The judge certifying to the 
 court in writing that the verdict was "a very wrong verdict," the court 
 granted a third trial, on the ground of its being against the weight of evi- 
 dence. Davies v. Roper, 0. S. iv. 504. 
 
 NEW YORK. 
 
 By the compact between the states of New Jersey and New York, approved 
 by Congress in the year 1834, the state of New York has exclusive jurisdic- 
 tion over all the waters of the Hudson River, and of and over the lands covered 
 by the said waters, to the low-water mark on the New Jersey shore. The State 
 V. Babcock, N. S. i. 752. 
 
 NEW YORK CODE. 
 
 Section 165 of the N. York Code of Procedure, properly construed, affords 
 a complete remedy for the evils resulting from the following unjust rules, 
 viz. — that a defendant in an action for slander or libel, might show to rebut 
 the presumption of malice, that he believed the charge when made to be true, 
 and that pleading the truth of the charge in justification, was conclusive of 
 malice in the original publication. Follett v. Jewett, 0. S. i. 600. 
 
 NEW YORK INTEREST. 
 
 Where a mortgage was executed to secure to the plaintiff a loan for two 
 thousand dollars on real estate in Michigan, with ten per cent, interest pay- 
 able semi-annually, in New York, the rate of interest being seven per cent, 
 in New York. Held, on suit, in Michigan, plaintiff entitled to recover ten 
 per cent. Fitch v. Semer, 0. S. viii. 654. 
 
 NEXT OF KIN. 
 
 Where the next of kin of the testator were three brothers and sisters of the 
 whole blood, and a brother and sister of the half blood. Vint v. King, 0. S. 
 ii. 712. 
 
 NICHOLSON PAVEMENT. 
 
 1. Where a city charter required that all work should be let by contract to 
 the lowest bidder. Held, that the city authorities could not contract at all 
 for laying the Nicholson pavement. Dean v. Charlton, N. S. vii. 564. 
 
 2. The fact that an article is patented, does not necessarily prevent any 
 person but the patentee from contracting to supply it. Bobart v. Detroit, N. 
 S. vii. 741. 
 
 NON-ACCESS. 
 
 Where no evidence of non-access at the time of conception was given, 
 the declarations and acts of the husband and wife to prove the child ille- 
 gitimate, were inadmissible. Page v. Denniaon, 0. S. v. 469. 
 
 NON-PAYMENT. 
 
 A special partner may, under the law in New York, purchase securities 
 which are sold by his partners as pledges forfeited for non-payment of notes 
 held by the firm. James M. Lewis v. John A. Graham and Others, 0. S. v. 368. 
 
 NON-RESIDENTS. 
 
 1. Actions against non-residents and absentees. Subject discussed. N. 
 S. vi. 1. 
 
 2. The state cannot tax dividends by domestic corporations due non-resi- 
 dent owners. Oliver v. Washington Mills, N. S. vi. 58. 
 
 3. Judgment in one state, founded upon attachment of property, without de- 
 fendant's appearance, who is a non-resident thereof, cannot be enforced in 
 another state. Price v. Hickok, N. S. vi. 714. 
 
 NON-SUIT. 
 
 1. Refusal to proceed may be treated as non-suit. Partridge v. Lott, N. S. 
 vi. 819. 
 
710 NON-SUIT— NOTICE. ' 
 
 2. A non-suit will not be taken off which has teen granted by reason of a 
 discrepancy between the allegations in the narratiye and tbeproof at the trial. 
 Jemieson t. l^ie Camden and Amboy Railroad, 0. S. iv. 234. 
 
 3. Non-suit of one of several co-plaintiifs, in a personal action, is non-suit 
 of all. Brown v. Wentworth, N. S. vi. 383. 
 
 4. When non-suit will be entered at request of one plaintiff. Id. 
 
 5. What sufficient to prevent entry thereof. Id. 
 
 NON-USER. 
 
 1. Advantage cannot be taken of non-user or mis-user of an act of, incor- 
 poration in any collateral action. Union Branch B. R. v. East Tenn. and 
 Georgia R. R., 0. S. ii. 303. 
 
 2. Non-user of act of incorporation, advantage cannot be taken in a collat- 
 eral action. Id. 
 
 3. Intention to abandon right, see Presckiption. 
 
 NOTARY. 
 
 1. How far he is a public officer. Note to American Express Co. v. Dunlevy, 
 N. S. iii. 271. 
 
 2. Cannot act as partners or by agents. Bank v. Barksdale, N. S. v. 442. 
 
 3. When banks receiving notes from its depositors for collection is respon- 
 sible for the negligence of its notary. Gerhardt v. Savings Institution, N. S. 
 vi. 247. 
 
 4. When notarial certificate evidence of facts stated therein. Bank v. 
 Gregory, N. S. vi. 57. 
 
 5. When the act of a clerk is not the act of the notary, it may be proved 
 as the act of an individual. Gawtry v. Doane, N. S. vi. 714. 
 
 6. An express company contracted in Indiana to present a bill drawn and 
 indorsed by parties in that state, and accepted payable in New York. The 
 bill was placed in the hands of a competent notary in New York, a day before 
 its maturity, and was, on that day, presented and protested: the protest 
 should have been made on the next day, in default of which the inJorsers 
 were discharged. American Exps. Co. v. Dunlevy, N. S. iii. 266. 
 
 NOTE. See Bills and Notes, Pkomissobt Note, Bill op Lading. 
 
 NOTICE. 
 
 1. Notice of outstanding equities, see Vendor and Ve.xdee. 
 
 2. Notice to purchaser, see CoNSTitncxiVE Notice. 
 
 3. A debtor, who was absent from home in the service of the rebellion, 
 cannot come into equity and complain that his creditors obtained payment 
 of their debts through judicial process founded on constructive notice. Mo- 
 Quiddy v. Ware, N. S. xiv. 124. 
 
 4. Especially where there is no allegation of want of actual knowledge. Id. 
 
 5. The statutes of Missouri give three years for review of a decree founded 
 on constructive notice. Id. 
 
 6. Six years, without an attempt to review, is laches. Id. 
 
 7. In writing, how far admissible in evidence. Allen v. Peters, 0. S. viii. 426. 
 
 8. The record of a deed in one town is not constructive notice of the con- 
 veyance of land in another town. Perrin v. Reeds, N. S. iv. 55. 
 
 9. But if one sees such record, this constitutes notice. Id. 
 
 10. An attaching creditor of real estate with notice, either actual or con- 
 structive, of the true state of the debtor's title, is bound by such notice. Id. 
 
 11. Notice to appear at taking of depositions before A. at a certain time and 
 place, deposition taken at the appointed time and place before B. not admis- 
 sible. Henry v. Huntley, N. S. iv. 253. 
 
 12. A party who is bound to make inquiry will be affected with all the 
 knowledge te would have got by inquiry. Cordova v. Hood, N. S. xiii. 334. 
 
 13. It is not necessary that a proclamation of the President should be pub- 
 lished, it takes effect when signed and sealed and attested. Lapeyre v. United 
 States, N. S. xiii. 334. 
 
 14. When the legislature provides for constructive notice on absent debtors, 
 such notice, if given, is sufficient to give the courts jurisdiction and their 
 judgment will be sustained. Thomas v. Mahone, N. S. xii. 433. 
 
 15. Judgment absolutely void, if it appear, by inspection of record, to have 
 been rendered without notice to defendant. R. R. Co. v. Weeks, N. S. vi. 188. 
 
 16. What possession of real property is notice to subsequent purchaser and 
 sufficient to put on inquiry. Hughes v. U. States, N. S. vi. 443. 
 
NOTICE. 711 
 
 17. Consequences of neglect to make inquiry. Hughet v. XInited States, N. 
 S. vi. 443. 
 
 18. What will raise implied assent by tenant to landlord's notice of increase 
 of rent. Hunt v. Bailey, N. S. Ti. '2b'2. 
 
 19. Notice of lis pendens, by code in 1859, might be filed before service of 
 the summons upon defendant. Stem v. 0' Connell, N. S. vi. 252. 
 
 20. Notice of execution of power of sale under a deed of trust. Barnard 
 T. Duncan, N. S. vi. 254. 
 
 21. Possession of land by a grantor, as notice of equities in him against 
 his own conveyance. Dawson v. Bank, N. S. vi. 638. ' 
 
 22. Transfer of trust estate, without any consideration, to one, with notice 
 thereof, fraudulent as to beneficiaries. Smith v. Bowen, N. S. vi. 255. 
 
 23. Second purchaser, without notice protected, though his vendor had 
 notice. Webster v. Van Steenbergh, N. S. vi. 192. 
 
 24. What possession of premises will operate as constructive notice. Id. 
 
 25. Use of an uuinclosed alley in a city by adjoining lot-owner as notice 
 of exclusive right thereto. Gordon v. Sizer, N. S. vi. 512. 
 
 26. There cannot be possession of a way, necessary in law, to constitute 
 notice. Id. 
 
 27. A paper, not entitled to be recorded by law, will not operate as con- 
 structive notice by placing it on record. Glenn v. Davis, N. S. xi. 532. 
 
 28. Where an attorney has notice of a trust, the law will presume the notice 
 was communicated to the client, and, if this knowledge comes to the attorney 
 or agent, while acting in another and different transaction, the client and 
 principal will be affected with notice. Abell v. Howe, N. S. xi. 144. 
 
 29. The recording of a deed in the registry of mortgages is an invalid 
 registry of the deed as such, and imposes no legal or constructive notice 
 upon third persons, but proof of actual notice is quite as effectual as con- 
 structive notice. King v. The Building Association, N. S. xi. 760. 
 
 30. Notes made by one partner, in the name of the firm after dissolution, 
 of which no notice was published, are binding on the other partners in the 
 hands of bond fide holders for value, without notice of the dissolution. Tay- 
 lor V. Hill, N. S. xii. 260. 
 
 31. Paper, not payable at a bank, is dishonored, upon refusal to demand 
 at a reasonable hour during business hours ; but notice immediately there- 
 after is good. Etheridge v. Ladd, N. S. v. 249. 
 
 32. The duty of a carrier by water is not fulfilled by simple transportation 
 from port to port. The goods must be landed, and the consignee notified of 
 their arrival. Owners of the Mary Washington v. Ayres et al., N. S. v. 692. 
 
 33. Where goods were landed from a vessel and stored in the carrier's 
 storehouse, until the consignee should call for them, but no notice of their 
 arrival was given him. Id. 
 
 34. Record of a mortgage- to secure future advances, is notice to subse- 
 quent mortgagees or purchasers to extent only of the advances made prior 
 to such subsequent mortgage or purchase. La DueY. R. R. Co., N. S. v. 59. 
 
 35. Registry of deed no avail when purchaser had notice of prior unregis- 
 tered deed. Butler v. Yiele, N. S. v. 512. 
 
 36. Vendee's duty upon receiving notice of rescission of agreement on de- 
 faiilt of payment. Tibbs v. Morris, N. S. v. 384. 
 
 37. Notice to the agent was notice to the insurer ; and by issuing the policy 
 the latter waived the condition. Ins. Co. v. Hall, N. S. iii. 417. 
 
 38. In order to charge the endorser of a joint note, demand must be made 
 on all the makers. Gates v. Beecher, N. S. xiv. 440. 
 
 39. Notice to any one of the supervisors of a defect in a bridge, is notice 
 to the town. Jacguish v. Town of Ithaca, N. S. xiv. 819. 
 
 40. Notice of dissolution of partnership sent by mail is not suificient with- 
 out evidence of its receipt. The rule that letters, properly directed and 
 marked, are evidence of dishonor of a bill, is restricted to commercial paper 
 alone. Kenny v. Altvater, N. S. xiv. 758. 
 
 41. It is purchaser's duty to give reasonable notice of the place of delivery, 
 and to be there ready to receive the goods. Lockhart v. Bonsall et al., N- S. 
 xiv. 759. . 
 
 42. Notice of abandonment to support claim for constructive total loss 
 must state the damage to exceed half the value. McConochie v. Sun Ins. Co., 
 N. S. iii. 701. 
 
712 NOTICE. 
 
 43. The purchaser at a mortgage sale under an attempted statutory fore- 
 closure, void as against the mortgagor for want of notice, stands as an as- 
 signee of the mortgage. Robinson v. Ryan et al., N. S. iii. 58. 
 
 44. The purchaser who fails to require the production of the bond is 
 chargeable with notice of any defect in the assignor's title thereto. Kellogg 
 V. Smith, N. S. iii. 499. 
 
 45. Where the trustees under the second and third mortgages were the 
 agents of the holders of bonds under such mortgages, and actual notice to 
 said trustees of the equitable first mortgage, was notice to the bondholders. 
 Miller et al. v. The Rutland R. R. Co., N. S. iii. 616. 
 
 46. The acceptance is that of the corporation and the endorsers, are entitled 
 to notice of non-acceptance by the drawee, and for want of notice are dis- 
 charged from liability to the holder of the bill. The Oneida Bank v. Burton D. 
 Hurlburt, 0. S. i. 219. 
 
 47. Proceedings in bankruptcy are notice to all the world. In re Lake, N. 
 S. xiii. 193. 
 
 48. Where the act is void for failing to provide for notice, the fact that 
 the property owner was present, but without taking any part, will not give 
 the proceedings validity. Sdfert v. Brooks, N. S. xiii. 7 1 2. 
 
 49. A judgment against the husband is no notice to wife's grantee if the 
 title is in her. Fhelps v. Morrison, N. S. xiii. 56. 
 
 50. A purchaser with notice of fraud or trust may protect himself under 
 a prior purchaser without notice. Ashton's Appeal, N. S. xiii. 395. 
 
 51. A stockholder represented by proxy is presumed to have notice of all 
 proceedings during such representation. Thames v. Central City Ins. Co., N. 
 S. xiii. 54. 
 
 52. Where a purchaser accepts a deed which recites the conveyance of 
 " all of a certain lot which has not been conveyed to other persons by the 
 grantor," he will be deemed to have notice of a prior grant. Quintan v. Fierce 
 et al, N. S. xiii. 719. 
 
 53. A person receiving a printed notice on his ticket or check at the time 
 of delivering his goods to a carrier, is to be charged with actual notice of its 
 contents. Hopkins v. Westeott, N. S. vii. 538. And see Famham v. B. R. Co., 
 N. S. vii. 172 ; but see Prentice v. Decker, N. S. vii. 377. 
 
 54. Purchaser has notice of the estate as limited by deeds in the chain of 
 title! Ford v. Flint, N. S. vii. 296. 
 
 55. And creditors also. Bancroft v. Consen, N. S. vii. 121. 
 
 56. Retiring partner liable to creditor of firm unless such creditor had 
 notice, or was put upon inquiry. Zollar v. Janvrin, N. S. vii. 252. 
 
 57. What amounts to notice. Id. 
 
 58. It is sufiSoient if any notice of the assignment comes to the debtor; the 
 assignment works an equitable transfer of the debt, and the notice will 
 charge the debtor with the duty of payment to the assignee. Mowry, As- 
 signee V. Crocker, 0. S. vi. 737. 
 
 59. Purchase of stock on margin not a pledge for payment of money re- 
 quiring notice to make legal sale. Hanks v. Drake, N. S.'vii. 381. 
 
 60. If after demand principal fails to make good his margin, broker may 
 sell without further notice. Markham v. Jordan, N. S. vii. 572. 
 
 ,61. Retiring partner liable to creditor of the firm, unless the latter had 
 notice or was put on inquiry. What amounts to notice. Zollar v. Janvrin, 
 N. S. vii. 252. 
 
 62. The expression " more or less " in describing quantity of land, is 
 notice to the purchaser that quantitity is not of the essence of the contract. 
 Slowthowery. Gordon, N. S. vii. 251. 
 
 63. Where a transfer agent, appointed by the directors of an incorporated 
 joint stock company, has fraudulently over-issued stock, a director taking 
 such stock directly from the agent is chargeable with constructive notice, 
 especially where the fraud would have been discovered by an inspection of 
 the books of the company. Ketchum v. Bank of Commerce of New York, 0. S. 
 iii. 145. 
 
 64. Against vendor in an executory contract for sale of land, is subject 
 to equitable rights of vendee, and is not a lien against the unpaid purchase- 
 money in his hands until actual notice of the judgment. Smith v. Oage, N. S. 
 ii. 438. 
 
NOTICE— NUISANCE. 713 
 
 65. Whether a party applying for an order to examine a party to the 
 record in a bill in equity, must, make it appear that the proposed witness is 
 without interest at the time the order is asked, is grantable of course on a 
 suggestion of no interest, or only on previous notice to the opposite party, 
 not decided. Anspach v. Thompson et al., N. S. iv. 3C2. 
 
 66. Mere notice of a judgment ten years old will not affect a purchaser of 
 the debtor's land, without actual fraudulent intent. Reynolds v. Darling, N. 
 S. iv. 382. 
 
 67. Assignment of judgment on record is not constructive notice to debtor. 
 Henry v. Brothers, N. S. iv. 638. 
 
 68. After decree for completion of executory contract for purchase of land, 
 at suit of vendee's executors, it is too late for vendor to allege want of notice 
 of the taking of testimony. Thompson v. McKinley, N. S. iv. 447. 
 
 69. Notice of the extent of agent's authority. Bank v. Schaumburg, N. S. 
 vi. 246. 
 
 70. Eights of SonS^tfe holders without notice. Eogey. Lansing, N. S. vi. 814. 
 
 71. Waiver of demand implies waiver of protest and notice. Jaccard v. 
 Anderson, N. S. vi. 57. 
 
 72. When admission of liability by indorsees will not overcome want of 
 demand and notice. Gawtry v. Doane, N. S. vi. 714. 
 
 73. What is sufiBcient notice to indorser. Wood v. Watson, N. S. vi. 566. 
 
 74. Defendant must be notified of pendency of suit to give jurisdiction. 
 It. R. Go. v. Weeks, N. S. vi. 188. 
 
 NOVATION. 
 
 1. If A. is indebted to B. and B. to C, and by agreement A. gives his note 
 to C, it is a novation, and extinguishes A.'s indebtedness to B. and B.'s to 
 C. Deeoer v. Aikm, N. S. ix. 638. 
 
 2. If '' D." holds a note of " B." and " C." as joint promissors, and in sat- 
 isfaction thereof "A." takes a note of "B." as principal and "D." as secur- 
 ity, it is a novation. Grisham v. Morrow, N. S. ix. 638. 
 
 NUISANCE. 
 I. What is a Nuisance ? 
 
 1. For injuries to adjoining property by noxious gases arising from a law- 
 ful business. Smelting Co. ?. Tipping, N. S. v. 104. 
 
 2. Works of internal improvement, erected by the state, for the public bene- 
 fit, are not a nuisance ; and their transfer to (he hands of a private company, 
 with a requirement that they shall be kept up for the purpose of their creation, 
 in no respect changes the rule. Commonwealth v. Reed et al., O. S. vili. 128. 
 
 '6. The Commonwealth and its agents could not have been indicted therefor, 
 and the company and its officers occupy precisely the same position. Id. 
 
 4. Any trade or business, however lawful in itself, which, from the place 
 or manner in which it is carried on, materially injures the property of others, 
 or affects their health, or renders the enjoyment of life physically uncom- 
 fortable, is a nuisance which it is the duty of this court to restrain. Attorney- 
 General V. Steward, N. S. ix. 387. 
 
 5. Erection of a pier in navigable river without legal authority will be a 
 nuisance _per ee, which will be enjoined, and no evidence will be received to 
 show that it will do no harm. People v. Vanderbilt, N. S. ii. 632. 
 
 6. Notice to remove before action brought. Caldwell r.Gale, N. S. ii. 697. 
 
 7. Smoke, noise, and liability to fire as elements of nuisance in a city. 
 Rhodes v. Dunbar, N. S. vii. 412. ' 
 
 8. When a wall occupying any portion of river bed, is a nuisance. Gty v. 
 Ereckson, N. S. vi. 123. 
 
 9. Where a lawful business is carried on at unseasonable hours, it becomes 
 a nuisance, and equity will interfere by injunction to restrain it. Dennis v. 
 Mehardt, N. S. ii. 166. 
 
 10. Making a speech in a public street is not per se a nuisance. Fairbanks 
 V. jTen-, N. S.xii. 401. 
 
 11. Brickmaking is not a nuisance per se. Huckenstine's Appeal, N. S. xii. 
 405. 
 
 12. Though a useful employment may produce discomfort to those near it, 
 it is not therefore to be restrained. Id. 
 
 13. A tomb upon one's own land, is not necessarily a nuisance, but it may 
 become such from locality and other facts. Barnes v. Halhorn, N. S. vii. 81. 
 
714 NUISANCE, 
 
 14. Where the nuisance is not only the use, but also the erection of the 
 structure, the liability attaches to those who caused the erection. The Che- 
 nango Bridge Co. v. Lewis, N. S. xii. 260. 
 
 15. The rule that the creator of a nuisance is liable for its continuance, is 
 subject to an exception, where he is not in possession. Id. 
 
 16. Cases on the subject of nuisance collected. Note to Barnes t. Halhorn, 
 N. S. vii. 86. 
 
 17. Keeping of jacks and stallions in view of private houses is a nuisance. 
 Rayden v. Tucker, N. S. vi. 62. 
 
 18. The question of nuisance must be determined by general and fixed 
 laws. Yates v. Milwaukee, N. S. x. 207. 
 
 19. The obstruction of a highway which cannot be used is not such a 
 grievance as equity will redress by injunction. Attorney General ■^ . Brown, 
 N. S. xiii. 60. 
 
 20. One count of an indictment charged that the defendant had a mare 
 infected with a contagious, infectious, and dangerous disease, called the 
 glanders, and that he, well knowing the premises, whilst the mare was so 
 infected, brought it into a public place and way, where divers liege subjects 
 then were," to the great danger of infecting with the said contagious, infec- 
 tious, and dangerous disease," the liege subjects in and near, &c., to the 
 common nuisance, &c., against the peace, &c. Held, good, after verdict, 
 without an allegation that the defendant knew the glanders to be a disease 
 which was communicable to the human race by infection. Reg. v. Henson, 0. 
 S. i. 307. 
 
 21. The trade and occupation of carriage-making or of a blacksmith is a 
 lawful and useful one ; and a building erected for its exercise is not a nui- 
 sance'. Per se Whitney v. Bartholomew, 0. S. i. 569. 
 
 22. Restoring a structure which was a nuisance to a right of way, and 
 which has been abated, will render a tenant for years liable, although the 
 structure existed before the commencement of his tenancy; but merely refit- 
 ting it after it has been injured but not abated, will not render him liable. 
 McBonough v. Gilman, N. S. i. 507. 
 
 23. A powder-house located in a populous part of a city, and containing 
 stored therein large quantities of gunpowder, is per se a nuisance. Cheatham 
 et al. V. Shearon, 0. S. i. 380. 
 
 24. To keep in a warehouse in a populous district excessive quantities of 
 " wood naphtha" is a nuisance. Reg. y. Lister, 0. S. v. 704. 
 
 25. Every erection in a navigable river which obstructs navigation is a 
 nuisance. Plank-Road Co. v. Elmer, 0. S. v. 67. 
 
 26. Nuisance in the use of a steam-engine — it is not necessary to consti- 
 tute a nuisance that the smell should be unwholesome, it is enough if it 
 render the enjoyment of life and property uncomfortable. Davidson v. Ishan, 
 0. S. V. 61. 
 
 27. Whatever is offensive to the senses, and by such offensiveness makes 
 life uncomfortable, is a nuisance. Cleveland v. Citizens' Gas Light Co., N. S. 
 ix. 388. 
 
 28. Smoke, noise, and bad odors, even when not injurious to health, cause 
 a, discomfort against which the law will protect. Id. 
 
 29. Noise and jar of machinery may be nuisance to dwelling-house or inn, 
 but evidence that guests declared they left the inn on that account is not ad- 
 missible. Wesson y.Iron Co., N. S. vii. 125. 
 
 30. Person making excavation^ in highway liable for injuries resulting. 
 Portland v. Richardson, N. S. vii. 446. 
 
 81. The rule that the obstruction of a navigable river will not be deemed a 
 nuisance if the public are benefited, modified, by requiring the benefit to be 
 direct, and to the public frequenting that port. Attorney-General v. Terry, N. S. 
 xiii. 591. 
 
 32. A business which is not a nuisance in itself, may become so, in view 
 of the neighborhood in which it is proposed to be carried on. Wier' s Appeal, 
 N. S. xiii. 715. 
 
 33. The legislature has recognized that the storing of gunpowder in thickly 
 settled places is a nuisance. Id. 
 
 34. There is a distinction between a business long established, which has 
 become a nuisance from increase of population, and a new erection threat- 
 ened in such vicinity. Id. 
 
NUISANCE. 715 
 
 35. Railroad bound to operate its line so as to cause least danger to build- 
 ings, and that the buildings were erected after the road does not alter the 
 case. King v. R. E. Co., N. S. vii. 764. 
 
 36. The legislature has power to declare a place where intoxicating 
 liquors are sold in violation of law, to be drunk on the premises, a nuisance. 
 McLaughlin v. The State, N. S. xiv. 59. 
 
 37. It is neither a cruel nor an unusual punishment to adjudge the abate- 
 ment of a nuisance. Id. 
 
 38. A railroad obstructing travel on the portion of a public road allowed 
 by law, is not guilty of nuisance. Danville Railroad Co. v. Commonwealth, N. 
 S. xiii. 397. 
 
 39. Any unreasonable obstruction of the use of a stream in floating logs 
 ■will be a common nuisance. Veazie v. Dwinel, N. S. iii. 715. 
 
 40. The obstruction of a highway is a common nuisance, and the remedy 
 is by indictment. Houck v. Wachter, N. S. xi. 60. 
 
 41. Filling the air around a dwellings-house with dense smoke and soot or 
 cinders, and with noxious vapors, so as to make it uncomfortable, is a 
 nuisance, and will be restrained by injunction. Duncan v. Hayes, N. S. xi. 132. 
 
 42. Loungers are obstructions of the public right of way, and nuisances. 
 JVorrisiovm v. Moyer, N. S. xi. 199. 
 
 II. Removal and Abatement of, and herein of Injunction to Restrain. 
 
 43. It is no objection to a bill for an injunction to restrain^ nuisance that 
 the complainants are nineteen separate owners of the residences alleged to 
 be injured. Robinson el al. •v.Baugh, N. S. xiv. 586. 
 
 44. No verification of a bill is required, where the only relief contemplated 
 is to be granted on final hearing. Id. ' 
 
 4l6. a trial at law is not a necessary prerequisite to a bill in equity to re- 
 strain a nuisance. Id. 
 
 46. Equity will restrain a threatened nuisance to a dwelling if the injury 
 is likely to materially diminish the value of the property, and interfere with 
 its enjoyment. Adams v. Michael, N. S. xiii. 197. 
 
 47. Such facts should be stated in the bill as would enable the court to 
 determine whether a nuisance Would result, and not a simple allegation that 
 such would be the consequence. Id. 
 
 48. Though the jurisdiction of equity to restrain public nuisances is un- 
 doubted, it will not be exercised when the same object can be attained in the 
 ordinary tribunals. Attorney- General y. Brown, N. S. xiii. 60. 
 
 49. The remedy by indictment is so efficacious that equity interferes with 
 reluctance . Id, 
 
 50. Trespass will not in general be restrained by injunction, but may be 
 if it amounts to nuisance. Morris Canal Co. -i.Fagan, N. S.vii. 700. 
 
 51. If railroad has been found a nuisance, plaintiff may have injunction, 
 though not damaged. People v. Railroad Co., N. S. v. 571. 
 
 52. Enjoyment of mill property under a prescriptive right cannot be dis- 
 turbed or restrained, except on the ground of public nuisance. City v. Erich- 
 son, N. S.vi. 123. 
 
 53. The Board of Health cannot absolutely prohibit the carrying on of a 
 lawful business not necessarily a nuisance. Weil v. Ricord et al., N. S. 
 xiii. 60. 
 
 54. The principle is well established, that every common trespass is not a 
 foundation for an injunction, where it is contingent and only temporary; 
 but if it continue so long as to become a nuisance, the court will interfere 
 and grant an injunction. Whitfield v. Rogers, 0. S. iii. 44. 
 
 55. Where the fact of a nuisance is clear, equity will interfere without a 
 trial at law. Duston v. Leddell, N. S. xii. 322. 
 
 56. Jurisdiction in cases of private nuisance. Burnham, v. Kempton, N. S. 
 iii. 380. 
 
 57. A private person cannot enjoin the obstructing of a highway, without 
 showing special injury to himself. McGowan v. Whitesides, N. S. ix. 454. 
 
 58. Any citizen acting either as an individual or as a public officer under 
 municipal orders, may abate what the common law deems a public nuisance. 
 Manhattan Fertilizing Co. v. Van Keusen, N. S. xi. 774. 
 
 59. In abating it property may be destroyed, and the owner receive neither 
 notice nor compensation. Id. 
 
716 NUISANCE. 
 
 60. To warrant enjoining a trade as a nuisance, on the ground that it pro- 
 duces discomfort to those dwelling in the neighborhood, the discomfort must 
 be physical, and not such as depends upon taste or imagination. Cleveland 
 V. Citizens' Gaslight Co., N. S. ix. 388. 
 
 61. Unless an individual citizen is specially injured by a public nuisance, 
 he cannot bring a suit in his own name. Eigbee v. Camden ^ Amboy R. R. Co.; 
 N. S. viii. 252. 
 
 62. The prosecution of a business, which renders the neighborhood un- 
 comfortable, from smoke and noise, though not deleterious to health, will be 
 restrained by injunction. Ross v. Butler, N. S. Tiii. 252. 
 
 63. Continuance of, after notice to abate, renders party liable to indict- 
 ment. Vason T. City of Augusta, N. S. viii. 315. 
 
 64. Landlord not liable for nuisance on the premises of his tenant. Id. 
 
 65. Where a party can maintain an action for a nuisance, he may abate, 
 though causing but nominal damage. Amoskeag Co. v. Goodale, N. S. vi. 256. 
 
 66. If the fact of the nuisance is free from doubt a delay of several months 
 will not prevent relief by iujunclion. Meigs v. Leister, N. S. xii. 62. 
 
 67. On a highway, cannot be abated by a private individual unless it does 
 him special injury. Harrower et al. v. Ritson et al., N. S. ii. 315. 
 
 68. The principle on which courts of equity grant injunctions in case of 
 nuisance is the same whether the nuisance is public or private ; the injury 
 must be such as the law cannot adequately redress. Morris Canal Co. v. Fagin, 
 N. S. xi. 268. 
 
 69. Equity will restrain if direct, continuing, and permanent. Hayden v. 
 Tucker, N. S. vi. 62. 
 
 70. The abatement of a private nuisancers a matter of legal discretion. 
 Maxwell v. JBoyne, N. S. xii. 326. 
 
 71. No period of use nor claim of right will protect nuisance from abate- 
 ment or injunction. City v. Erichson, N. S. vi. 123. 
 
 72. Plaintiff must establish the fact that nuisance will be created by pro- 
 posed erection, with clearness and certainty. Id. 
 
 73. Danger must be imminent and impending, and the mischief irrepa- 
 rable. Id. 
 
 14:. It is sufficient to sustain an injunction, that the gases generated by de- 
 fendant's business are so offensive and disagreeable as to render life uncom- 
 fortable. Meigs v. Leister, N. S. xii. 62. 
 
 75. Where a particular kind of fuel, the use of which is productive of 
 injury to the owners of neighboring property, is necessary in the course of 
 a manufacture in which tbe parties using it are largely engaged, and whose 
 products the public require ; and the process of manufacture and fuel used 
 are generally employed in similar establishments, and there is neither a wil- 
 ful or negligent infliction of injury, equity will not enjoin against the use of 
 such fuel ; but will leave the party complaining to his action at law for dam- 
 ages. Richards v. Phoenix Iron Co., N. S. vii. 356. 
 
 76. Semble, that if the use of such fuel in the particular manufacture were 
 unnecessary, and other fuel was equally good and available, or that by a 
 reasonable expenditure of money in the manufacturing works all injury 
 might be avoided, equity would enjoin against it as a nuisance, where injury 
 was inflicted upon neighboring property. Id. 
 
 77. The objection to a factory or other building in a city that it will pre- 
 vent the use of the neighboring ground for such buildings as would, in the 
 
 : ordinary course of affairs and the extension of the city, be erected there, is 
 ■ not a ground for interference by a court of equity. The subject presented 
 by such objection is one of public policy not of private right, with which 
 1 courts deal. Rhodes^. Dunbar, N. S. vii. 412. 
 
 ; 78. A court of equity will not interfere with a particular use of a building 
 1 or lot of ground unless it amounts to a nuisance at law for which damages 
 i might be recovered, and for which damages merely would not be an adequate 
 ' remedy. Id. 
 
 79. Mere diminution of value of surrounding property is not a ground for 
 injunction. Id. 
 
 III. ACTIOlf FOR THE RECOVERY OP DAMAGES. 
 
 80. When an individual sustains an injury from a public nuisance differing 
 in kind from that sustained by the community, he may bring an action there- 
 for. FraariiT.O-oM, N. S. xi. 334. 
 
NUISANCE. 717 
 
 81. Erery continuance is a, fresh nuisance in judgment of law, and an 
 action for damages will lie against the continuer, without a request to abate 
 it. Conhooton Stone Co. t. B. ^ iV". T. Railroad, N. S. viii. 382. 
 
 82. The diversion of the waters of a navigable stream may be both a pub- 
 lic and a private nuisance, and a person especially injured may have an 
 action therefor. Yolo v. Oity of Sacramento, N. S. viii. 700. 
 
 83. A. brought an action against a smelting company for injuring his trees 
 by noxious vapors, and the judge directed the jury to find for the plaintiff, 
 if the evidence satisfied them that real, sensible injury had been done to the 
 enjoyment or value of A.'s property by such vapors. The jurv found for the 
 plaintiff, ffeld, that the judge had rightly directed the jury, and that the 
 defendants were liable for sensible injury done to the plaintiff's property, 
 notwithstanding that their business was an ordinary business, carried on in a 
 proper manner, and in a neighborhood more or less devoted to manufactur- 
 ing purposes. Smelting Co. v. Tipping, N. S. v. 104. 
 
 84. A gas company is not liable to indictment for creating a nuisance, 
 where it is conceded that its process is the best, and that it has used due care 
 in the business. The People v. The New York Gaslight Co., N. S. xii. 399. 
 
 8.5. Although it may be that private persons can maintain an action, the 
 people are barred by the act of legislature incorporating the company. Id. 
 
 86. When necessary for party to establish his right at law. Hayden v. 
 Tucker, N. S. vi. 62. 
 
 87. If an injury to property of an individual he may sue for it though 
 others are injured in like manner. King v. R. R. Co., N. S. vii. 764. 
 
 88. That some of the complainants were maintaining similar nuisances, is 
 no excuse for respondent. Robinson v. Baugh, N. S. xiv. 586. 
 
 89. An individual cannot maintain an action for a common nuisance, unless 
 he shows special damage. Green v. Nunnemacher et al., N. S. xiv. 708. 
 
 90. One who has a right to enjoy the use of waters of a river which flows 
 upon his land, may maintain a private action for having their purity destroyed 
 by an upper proprietor. Id, 
 
 91. An averment that the nuisance complained of causes such an unwhole- 
 some condition of the atmosphere as to deprive complainant of many of his 
 customers as a tavern-keeper, shows such special injury as would entitle him 
 to an action. Id. 
 
 92. A complaint which shows that the western boundary of complainant's 
 premises is the " right bank" of a river flowing in a northerly direction, does 
 not give complainant the rights of a riparian proprietor. Id. 
 
 93. But an allegation that the river flows partly around and "partly 
 through" complainant's land does. Id. 
 
 94. Plaintiff proved that defendant's tomb, erected within forty-four feet 
 of the former's dwelling-house, contained, in 1856, nine dead bodies, from 
 which was emitted siich an effluvium as to render his house unwholesome ; 
 that, after an examination by physicians, the bodies were removed; that the 
 tomb remained unoccupied thereafterwards, until 1865, when anot}ier body 
 was therein interred; that the plaintiff's life was made uncomfortable while 
 occupying his dwelling-house, by the apprehension of danger arising from 
 the use of said tomb ; and, that the erection and occupation of said tomb 
 had materially lessened the market value of his premises. In an action for 
 damages on the foregoing facts. Held, a, non-suit was improperly ordered. 
 Homes V. Hathorn, N. S. vii. 81. 
 
 95. Several nuisances cannot be joined in one suit. Meigs v. Leister, N. S. 
 xii. 62. 
 
 96. The liability for a nuisance is not restricted to persons who occasion 
 the whole of it. The Chenango Bridge Co. v. Lewis et al., N. S. xii. 260. 
 
 97. The fact that other causes have helped render a well impure, is no 
 defence to action for injury to it by the escape of gas into it, but may affect 
 the amount of damages. Sherman v. Fall River Iron Works Co., N. S. ii. 768. 
 
 98. In an action to recover damages for maintenance of a mill-dam as a 
 nuisance, and to abate the same, evidence to aid the court in determining 
 whether it should be abated, is admissible, which should have no effect on 
 the question of damages. Maxwell v. Boyne, N. 3. xii. 326. 
 
 99. That the nuisance is not constant does not affect the right of the com- 
 plainant to protection. Meigs v. Leister, N. S. xii.v62. 
 
718 NUNCUPATIVE WILL— OFFICE AND OFFICER. 
 
 NUNCUPATIVE WILL. 
 
 1. Though a legatee may release or renounce a legacy, and become a com- 
 petent witness to prove a will, yet he cannot make himself competent by as- 
 signing his interest to another. The contrary doctrine in Search' a Appeal, 
 1-3 Pa. State E. 108, overruled. Haus v. Palmer, 0. S. i. 635. 
 
 2. It is necessary to the validity of a, nuncupative will, that each of its 
 requisites be very clearly proved by two witnesses, to wit: its substance, 
 the intent to will, the rogatio testium, and the necessity that prevents its 
 being reduced to writing. Id. 
 
 OATH. 
 
 An oath administered to a witness, pending a trial, by one who is acting as 
 an assistant of the clerk, at his request, is presumed to have been done with 
 the assent of the presiding judge, and therefore properly administered. 
 Stephens v. The State, 0. S. i. 380. 
 
 OBLIGATION OF A CONTRACT. 
 
 The obligation of a contract discussed, and authorities cited. Texas v. 
 South Pacific Railroad, 0. S. viii. 78. 
 
 OBSCENE WORDS. 
 
 1. The utterance of obscene words in public, being a gross violation of 
 public decency and good morals, is indictable. Bell v. State, 0. S. i. 367. 
 
 2. In a prosecution for the utterance of obscene language in public, it is 
 not necessary that the words should be proven exactly as charged to have 
 been spoken. Id. 
 
 OBSTRUCTION. 
 
 1. No private person or corporation has a right to place, or cause any ob- 
 struction within the limits of the highway, by which any part would become 
 more dangerous to the traveller than in a state of nature, or as left by the 
 town. Dickey v. Maine Telegraph Co., 0. S. viii. 358. 
 
 2. Defendant held liable in special damages for obstructing plaintiff in 
 taking ice. Lorman v. Benson, 0. S. viii. 219. 
 
 OBSTRUCTION OF OFFICE. 
 
 Under the 22d sect, of the Act of April 30th, 1790, defendant liable to in- 
 dictment for obstructing the marshal as officer. United Stales v. Buck, 0. S. 
 viii. 540. 
 
 OFFICE AND OFFICER. 
 I. Geneeally. 
 
 1. The law-making power may continue or create an office, without an 
 express declaration that such office shall be continued or created, if the 
 intention to do so is manifested by requiring official acts to be performed hy 
 such officer, or if provision is made for filling vacancies in such office. Wood 
 V. Blanchard, 0. S. vi. 434. 
 
 2. A commissioned officer is not entitled to bounty. Hillard v. Stewartstown, 
 N. S. viii. 560. 
 
 3. Inspectors of election are administrative, not judicial officers, and their 
 decision on the right to vote may be examined in subsequent proceedings. 
 People V. Pease, N. S. iv. 185. 
 
 4. The governor of a state is not an officer of election within the mesaning of 
 sect. 22 of the Act of Congress of May 31st, 1870. United States v. Clayton, 
 N. S. X. 737. 
 
 5. Where the by-laws of a corporation provided that the officers shall re- 
 ceive such compensation for services as the directors shall fix, the directors 
 failing to fix secretary's salary, he is entitled to recover. Missouri River 
 Railroad v. Richards, N. S. xi. 328. . 
 
 6. Officer may deduct expenses of keeping and selling, before applying 
 balance to satisfaction of the execution. Baldwin v. natch, N. S. vii. 446. 
 
 7. Officer not bound by taxation of his fees in suit to T^hich he is not party, 
 but aliter as to party. Id. 
 
 8. On trial of title to office, the question Is who received the most legal 
 votes. People v. Pease, N. S. iv. 185. 
 
 9. No claim can be enforced against a county for a salary except for the 
 period the claimant was incumbent. Board of Auditors v. Benoil, N. S. i. 541> 
 
OFFICE AND OFFICER. 719 
 
 II. Appointment of Officers. 
 
 10. A person legally entitled to an ofiSce, may demand the office, and cannot 
 be restricted to compensation. Oity of Madison v. Korbley, N. S. s. 70. 
 
 11. Title to an office is derived from election or appointment. A commis- 
 sion is merely evidence of title. Htmter v. Chandler, N. S. x. 440. 
 
 12. An action for money had and received will lie in favor of a person 
 legally entitled or in possession of an office, against one who has usurped or 
 intruded into It, for the recovery of the fees received by the intruder; but 
 where a party claiming the title has not been in actual possession, and his 
 claim is disputed, he must first establish his title by some appropriate legal 
 proceeding. The title to an office cannot be determined in an action for 
 fees. Id. 
 
 13. Special commissioners appointed to act upon a single petition for a 
 highway, are so far public officers, that they must take the oath of allegiance 
 prescribed by the Constitution of New Hampshire. Wentworth v. Farmington, 
 N. S. xii. 62. 
 
 14. An objection that such officers were not duly qualified is good any time 
 before their .report is accepted. Id. 
 
 15. An agreement by the Secretary of the Interior, to pay a clerk in his 
 department for services rendered the government by labors abroad, is void 
 under the Act of August 23, 1842. Stansbury v. United States, N. S. ix. 63. 
 
 16. In the United States, offices created by the legislature are not held by 
 grant or contract, and no person has a private property or vested interest in 
 them. State ex rel. Attorney- General v. Davis, N. S. ix. 197. 
 
 17. An agreement to share the proceeds of a public office in consideration 
 of aid and money to secure an election, is against public policy and void. 
 Martin v. Wade, N. S. ix. 819. 
 
 18. If the term of an officer, created by statute or charter, is not limited to 
 expire at a fixed time, or upon a specified event, but there is merely a direc- 
 tion for his annual election, his original term continues, though after the 
 year, until a successor be duly elected and qualified. Sparks v. Farmers' Bank, 
 N. S. ix. 365. 
 
 19. The General Assembly has no "power to legislate out of office a judge 
 whose office is created, and whose tenure of office is prescribed by the Con- 
 stitution. State V. Draper, N. S. xi. 552. 
 
 20. A judge elected by tlie people of the territory over which he has juris- 
 diction cannot be deprived of his office or authority by transferring his terri- 
 tory to other jurisdictions. Id. 
 
 21. And a judge so elected cannot be transferred to and jurisdiction given 
 to him over other territory, in which he was not elected, by changing the 
 number of his circuit or otherwise. Id. 
 
 22. The title of an officer holding an elective office comes from the votes of 
 the people, and not from his commission, and the mere change of the number 
 of the circuit for which he is commissioned does not afl^ect his right or title 
 to the office. Id. 
 
 23. The term for which the incumbent of an office, whose duration was 
 limited by law, had been appointed by the President with the concurrence 
 of the Senate, expired when the Senate was in session. No appointment in 
 which the Senate concurred was made at that session, and the President, in 
 the ensuing recess, appointed another person to the office by a commission to 
 expire at the end of the next session of the Senate. It seems that the former 
 incumbent's term was not extended by the Tenure of Office Act of March 2d, 
 1867; and that as he had been' appointed before that Act, Congress could 
 not constitutionally have prolonged by it his official tenure without a new 
 appointment by the President and concurrence of the Senate, as to the ad- 
 ditional period. Case of the District Attorney, N. S. vii. 786. 
 
 24. It seems also that the commission of the subsequent appointee was of no 
 effect, the vacancy not having happened during a recess of the Senate, and 
 the President therefore having no constitutional power to make a temporary 
 appointment. Id. 
 
 25. Office is public station or employment conferred by government, and 
 embraces the ideas of tenure, duration, emolument and duties. U. S. v. 
 Hartwell, N. S. vii. 446. 
 
 26. Officer under Sub-Treasury Act of 'Aug. 6, 1846. Id. 
 
720 , OFFICE AND OFFICER. 
 
 27. A tribunal authorized by law to decicb upon the sufSciency of Sureties 
 for official duty, cannot postpone its decision because the title to the office is 
 elsewhere disputed. Commonwealth ex rel. BalUery. Common Council of Phila- 
 delphia, N. S. vii. 362. 
 
 28. An officer not commissioned is authorized to enter upon the perform- 
 ance of the duties upon the certificate of election delivered by ihe return 
 judges. Id. 
 
 29. Contested right — ouster on quo warranto and supersedeas by writ of 
 error, salary is measure of damages in suit on bond. U. S. v. Addison, N. S. 
 Tii. 575. 
 
 30. County officer defined— who are not. County v. Parker, N. S. t. 506. 
 
 31. Under the Reconstruction Acts of Congress, appointment to ciTil oiBces 
 by the general commanding were by virtue of the acts, and conferred title 
 to the offices only while they were in force. Stone v. Wetmore, N. S. 398. 
 
 32. The appointment by county commissioners of a clerk, for more than 
 one year, is in excess of their authority. Koontz v. Franklin County, N. S. 
 xiv. 526. 
 
 33. The appointment of a public officer, and the services rendered by him, 
 are not in the nature of a contract. Id. 
 
 34. There can be no contract for the permanence of a salary. Id. 
 
 35. The commission of the governor is the proper evidence of the appoint- 
 ment of an officer. Northumberland County v. Zimmerman, N. S. xiv. 125. 
 
 36. An officer legally appointed and qualified, who continues to act after 
 the expiration of his term, in good faith, is not held to be criminally usurp- 
 ing the office, within the meaning of Act of March, 1831, of Ohio. Kreidler 
 V. The State, N. S. xiii. 653. 
 
 III. Offioek de Facto and be Juee, and herein of IiIABilitt of County and 
 Municipal Corporation for Acts of its Officers. 
 
 37. The official acts of an officer de facto are valid while he is in possession. 
 Board of Auditors v. Senoit, N. S. x. 541. 
 
 38. An officer de facto must be in actual possession of the office; if the 
 officer de Jure is in possession, there can be no officer de facto for that office. 
 McCahon v. County Corn's, N. S. xi. 269. 
 
 39. It is not necessary in all cases, in order that the acts of one acting as 
 an officer without legal right, may be holden valid as to the public and third 
 persons, as the acts of an officer de facto, that he should have color of election 
 or appointment by the only body which has power to elect or appoint him, or 
 that the appointing or electing body should in all cases possess the legal 
 power. State v. Carroll, N. S. xii. 165. 
 
 40. The expression used in the opinion of the court in Douglas v. Wickwire, 
 19 Conn. 492, that "it is enough if the officer acts under color of an election 
 or appointment by the only body which has power to make it," if intended 
 as a general definition, is inaccurate, and the definition given in Plymouth v. 
 Painter, that an officer de facto is one who exercises the duties of an office 
 under color of appointment or election to that office, is not sufficiently com- 
 prehensive. Id. 
 
 41. From a general review of the English and American authorities upon 
 the point, it appears that a definition, in order to be sufficiently comprehen- 
 sive and accurate as a general one, must be substantially as follows : An officer 
 de facto is one whose acts, though not those of a lawful officer, the law, upon 
 principles of policy and justice, will hold valid, so far as they involve the 
 interests of the public and third persons, where the duties of the office were 
 exercised, 1. Without a known appointment or election, but under such cir- 
 cumstances of reputation or acquiescence as were calculated to induce people, 
 without inquiry, to submit to or invoke his action, supposing him to be the 
 officer he assumed to be. 2. Under color of a known and valid appointment 
 or election, but where the officer has failed to conform to some precedent re- 
 quirement or condition, as to take an oath, give a bond, or the like. 3. Under 
 color of a known election or appointment, void, because the officer was not 
 eligible, or because there was a want of power in the electing or appointing 
 body, or by reason of some defect or irregularity in its exercise, such ineligi- 
 bility, want of power, or defect; being unknown to the public. 4. Under 
 color of an election or appointment by or pursuant to a public, unconstitu- 
 tional law, before the same is adjudged to be such. Id. 
 
OFFICE AND OFFICER. 721 
 
 42. Tlio acts of an officer appointed by and acting under and pursuant to 
 an unconstitutional law, performed before the unconstitutionality of the law 
 has been judicially determined, are valid, as respects the public and third 
 persons, as the acts of an officer de facto. Slate v. Carroll, N. S. xii. 165. 
 
 43. Where the Constitution prescribed that the judges of the Supreme, 
 Superior, and Inferior Courts should be elected by the General Assembly, and 
 a judge of a city court was so elected, and it was further provided by law 
 that, in case of his sickness or absence, a justice of the peace should be called 
 in by'the clerk to hold the court as acting judge during such temporary sick- 
 ness or absence, and a justice of the peace was so called in and acted, it was 
 holden that, whether the law was constitutional or not, and whether the call 
 had been recorded according to law or not, he was an officer de facto, if not 
 de jure, and judgments rendered by him were valid. Id. 
 
 44. The sale of a horse belonging to the United States, by an officer of the 
 array, to a bonS. fide purchaser, but without the authority or assent of the 
 goverament, will not pass the title against the latter. Johnson v. Frisbie, N. 
 S. viii. 756. 
 
 45. Persons dealing with agents or officers in regard to public property, 
 are bound to know the extent of their authority. Id. 
 
 46.^ A city is not responsible for the negligence of its officers. Elliott ■9. 
 City of Philadelphia, N. S. xiv. 258. 
 
 47. The officers of a city are quasi civil officers of the government. Id. 
 
 48. Municipal corporatiou is liable for neglect of its oificera in not keeping 
 its streets and bridges in repair. McLaughlin v. Oity of Carry, N. S. xiv. 757. 
 
 49. Neither relation of master and servant, nor principal and agent exists 
 between a town and its health or police officers. Mitchell v. Rockland, N. S. 
 vi. 189. 
 
 50. Municipal corporation cannot ratify the negligent, careless, or tortious 
 acts of its officers. Id. 
 
 51. When plea in abatement to capacity of officer serving the writ, held 
 defective. Smith v. Chase, N. S. vi. 573. 
 
 52. Persons claiming different offices in church cannot join as relators in 
 one proceeding against adverse claimnnts. People v. Demill, N. S. vi. 319. 
 
 53. Liability of banks for its officers' acts within apparent scope of au- 
 thority. Reynolds v. Kenyon, N. S. v. 181. 
 
 54. The states that joined the Confederate government continued, notwith- 
 standing that act, as states, and their governments, legislatures, courts, offi- 
 cers, &c., were officers de jure as well as de facto. Parks v. Coffee, N. S. xiv. 
 496. 
 
 IV. Liability of Offioeb and heetsin of what will Protect an Officee. 
 
 55. Process regular on its face from a court having jurisdiction, protects 
 an officer executing it. Wickersham v. Corlew, N. S. xii. 534. 
 
 56. Such protection extends to persons assisting the officer. Id. 
 
 67. The plaintiff must show a regular and valid judgment, however. Id. 
 
 58. Nature of assessor's office. His liability. Barhyte v. Shepherd, N. S. 
 vi. 313. 
 
 59. What is a suit against V. S. officer under Act of Congress of 1833, oh. 
 57, sect. 3. Commonwealth v. Casey, N. S. vi. 441. 
 
 60. When action of damages for tort will lie against public officer, acting 
 by independent authority. Glark v. Miller, N. S. vi. 443. 
 
 61. Alay be brought for refusal to perform duty imposed by law. Id. 
 
 62. Damages in action against supervisor of highways. Id. 
 
 63. Owner (Jannot maintain action against an officer for taking goods under 
 replevin. Willard v. Kimball, N. S. v. 447. 
 
 64. ,Public officers are liable in damages to all persons who maybe injured 
 through their malfeasance, omission, or neglect. lAck v. Madden, N. S. viii. 
 701. 
 
 65. An officer who seizes attached property without the notice required by 
 law becomes a trespasser ab initio. Sawyer v. Wilson, N. S. xiii. 261. 
 
 66. A justice of the peace in an action against for an arrest under a war- 
 rant issued by him cannot justify^, if he had not, before such arrest, taken 
 the oath of office prescribed by the constitution of the state. Courser v. Pow- 
 ers, N. S. i. 268. 
 
 67. Auction sales are usually conducted under the advice of the solicitor 
 
 46 
 
722 OFFICE AND OFFICER. 
 
 of the complainant ; but his instructions, if oppressive to the respondent or 
 unreasonable, cannot control the officer, because the officer has duties to 
 perform to the respondent as well as to the complainant, and to the court as 
 well as to the parties. Blossom v. R. R. Co., N. S. v. 218. 
 
 68. In Vermont an officer is not liable for property attached on mesne pro- 
 cess which has perished without his fault. Ide v. Faesitt, N. S. xii. 730. 
 
 69. It is a question for the jury, where an attachment or leTy on the prop- 
 erty of a debtor unlawfully arrested is Toid, and where money or other 
 articles of value with which a prisoner might obtain the means of effecting 
 his escape, are subject to levy or attachment, whether the officer making the 
 arrest acted in good faith or not. Clossom v. Morrison, N. S. viii. 60. 
 
 70. AVhere an officer of a corporation violates his duty, knowledge on the 
 part of other officers of the corporation of the default, or even connivance in 
 it, does not discharge the sureties. Railroad y. Shaeffer, N. S. viii. 110. 
 
 71. A tax collector has no right to take money to pay taxes from a drawer 
 in a bank without the consent of the officers. Natl. Bank of Sandy Hill v. 
 Fancher, N. S. viii. 384. 
 
 72. Liability of surety for money stolen from a public officer. JJ. States v. 
 Dashiel, N. S. vi. 575. 
 
 73. An officer ordered to arrest a debtor, and take him forthwith before a 
 justice, is not justified in confining him in jail. Hynes v. Jungrem, N. S. xi. ^62. 
 
 74. Note signed " Mass. Steam Heating Co., L. L. P., Treasurer," is corpo- 
 ration note. Draper et al. v. Mass. Steam BeaVg Go., N. S. ii. 698. 
 
 75. In what cases and under what process, an officer will and will not be 
 protected. Buck v. Colbath, N. S. v. 566. 
 
 76. President of corporation not liable on bond signed in his official capac- 
 ity. .Effisv. PaZm/er, N. S. ii. 182. 
 
 77. Public officer not liable where property attached by him is stolen, if 
 he has taken due care. Dorman v. Kane, N. S. ii. 444. 
 
 78. Liability of officer for any injury to property in his custody, under at- 
 tachment. William P. Briggs v. S. W. Taylor, 0. S. v. 239. 
 
 79. A depositor of the money of the United States or a public debtor, can- 
 not defend against a suit on his official bond by proving that he paid the 
 money due the United States to one of its creditors. United States v. Keehler, 
 N. S. ix. 510. 
 
 80. A statute passed under the forms of law is binding upon all public 
 ministerial officers, and obedience will be enforced by mandamus. People v. 
 Salomon, N. S. ix. 232. 
 
 81. A judgment in mandamus against an officer who has gone out of office 
 is void. The Secretary v. McGarrahan, N. S. ix. 581. 
 
 82. Lawful money cannot be held derelict in the hands of a deputy sheriff 
 into whose possession it came by virtue of a search-warrant. Norton v. Ni/e, 
 K. S. ix. 126. 
 
 83. Right to recover damages for fraudulent conversion of property by 
 officer of a bank is assignable. Grocer's Bank v. Clark, N. S. vi. 774. 
 
 84. A state has no authority to impose a duty to collect a tax of one per 
 cent, upon the par value of the stock of each shareholder, upon an officer of 
 a national bank. Markoe v. Hartranft, N. S. vi. 487. 
 
 85. The penal sanctions of sect. 3, act of June 14th, 1866, to secure the safe- 
 keeping of public money, &c., are confined to officers of banks. U. States v. 
 JSartwell, N. S. vii. 446. 
 
 V. Removal of OrricEE and Vacation op the Office. 
 
 86. Conviction of an infamous crime does not ipso facto work such a for- 
 feiture of public office as to make the office vacant. The State v. Pritchard. N. 
 S. xii. 514. 
 
 87. The right to remove a state officer for misbehavior in office does not 
 appertain to the executive. Id. 
 
 88. Such act is judicial, and belongs to the Court of Impeachment. Id. 
 
 89. Certain police commissioners of Jersey City, appointed by statute, 
 having been convicted upon indictment of conspiracy to cheat the city, and 
 the governor having declared their offices to be thereby vacated, and having 
 appointed their successors. Held, that such executive action was illesal and 
 void. Id. ^ 
 
 90. Mandamus against an officer of the government abates on his death or 
 retirement from office. United States v. Boutwell, N. S. xiii. 330. 
 
OFFICE AND OFFICER— OEDINARY CAEE. 723 
 
 91. Quo warTonlo is the proper remedy against persons usurping the office 
 of trustees of a chartered church. Oom. ex rel. Gordon\. Graham, N. S. x. 413. 
 
 92. A court of equity has no jurisdiction to remove an officer from an 
 office of which he is in possession, or to declare it forfeited. Johnson ei al. v. 
 Jones et al., N. S. xii. 467. 
 
 93. The third section of the fourteenth amendment did not, by its own 
 direct and immediate effect, remove from office persons lawfully appointed or 
 elected before its passage, though they may have been ineligible to hold such 
 office under the prohibition of the amendment. Ex parte Griffin, N. S. viii. 358. 
 
 94. Quo warranto will not issue concerning a private office. Ex parte 
 Smith, N. S. iv. 317. 
 
 95. Removal of incumbent by appointment of new one. Sladler v. Detroit, 
 ' N. S. iv. 574. 
 
 96. Quo warranto after entry is proper remedy against action of officers 
 illegally appointed. Bill in equity before entry will not lie. Updegraph v. 
 Cram, N. S. iv. 256. 
 
 97. Mandamus not the proper remedy to try right to public office. Ex 
 parte Harris, N. S. xiv. 646. 
 
 98. Venue of quo warranto to try right to a county office. People v. Oicotie, 
 N. S. vi. 639. 
 
 99. The constitutionality of the fifth section of the Act of Congress of 
 March 3, 1863, providing for the removal of suits against officers and others 
 from a state court to the Circuit Court of the United States. McCormick 
 V. Humphreys, N. S. vi. 552. 
 
 100. Contested right — ouster on quo warranto and supersedeas by writ of 
 error — salary is measure of damages in suit on bond. U. S. v. Addison, N. S. 
 vii. 575. 
 
 OFFICE DUTIES. 
 
 Remarks and advice relative to. 0. S. iv. 193. 
 
 OHIO RIVER. 
 
 The Ohio river being a great navigable highway between states, the public 
 have all the rights that by law appertain to navigable streams, as against 
 riparian owners ; but the public rights are upon the river, not upon the 
 banks. Bainbridge v. Sherlock, N. S. vii. 720. 
 
 OLD QUESTIONS OP LAW. 
 
 Remarks upon. 0. S. i. 577. 
 
 ONUS PROBANDI. 
 
 1. If a passenger be hurt without his own fault, this fact raises a presump- 
 tion of negligence, and casts the onus on the carrier. Sullivan v. The Phila- 
 delphia and ReaWg R. R. Co., 0. S. vi. 342. 
 
 2. In an action against a railway company for damages for killing cattle, 
 the oniLS is on plaintiff to prove negligence and misconduct on the part of the 
 company. The Richmond and Petersburg R. R. Co. v. Jones, 0. S. vi. 346. 
 
 3. An instrument to be the deed of a corporation must be sealed with the 
 corporation seal and by the proper officer. Burden of proof as to the seal- 
 ing. Koehler v. Black River Co., N. S. iii. 55. 
 
 4. Burden of proof of divorce as defence to indictment for second marriage 
 is on the defendant. Com. v. Boyer, N. S. iii. 568. 
 
 5. Where the equitable owner of a thing permits the legal owner to retain 
 possession of the documentary evidence of title, and it is sold to a third 
 party, the burden of proof is on the equitable owner to show that the pur- 
 chaser had notice of his rights. Calais Steamb't Co. v. Scudder, N. S. iii. 52. 
 
 OPINION OF THE ATTORNEY-GENERAL OP PENNSYLVANIA. 
 
 Relative to the diversion of the waters of Chemung river. 0. S. iv. 385. 
 
 OPINION OF HON. JOEL JONES. 
 
 As to fisheries on the shores of the Delaware river. 0. S. iv. 582. 
 
 ORDER. 
 
 Articles made to order, see Title to Manufaotueed Artioies. 
 
 ORDINARY CARE. 
 
 Ordinary care is altogether a relative term, and means the use of those 
 precautions which, under the circumstances of each particular case, a just 
 
724 OEDINAEY OAEE— PAEDON. 
 
 regard to the persona and property of others demands ; but there Is no 
 inflexible rule either of the river or of the road, the neglect of which by one 
 party will dispense with the exercise of common caution by the other. Steam- 
 boat Farmer v. McOraw. 
 
 ORDINARY SKILL. 
 
 Meaning of the phrases, " ordinary care " and " gross negligence." Au- 
 thorities cited and discussed. William P. Briggs v. S. W. Taylor, 0. S. v. 239. 
 
 ORPHANS' COURT. See Judicial Sale. 
 
 1. The Orphans' Court and its auditors have jurisdiction of the disputed 
 claim of a creditor against the estate of a decedent, whether the estate be 
 solvent or insolvent. OocAenauis' Estate, 0. S. iii. 486. 
 
 2. The Orphans' Court having exclusive jurisdiction of the distribution of 
 the estates of decedents in the hands of executors and administrators among 
 those entitled thereto, an action cannot be brought in a court of common 
 law by a distributee under the intestate laws to recover his share of the per- 
 sonal estate of a decedent from the administrators. Ashford v. Ewing, 0. S. 
 iv. 294. 
 
 3. Feigned Issue. — Where an issue in the Orphans' Court is directed, the 
 issue itself must be made up by the pleadings of the parties. Generally this 
 is as a wager, though this is not necessary where the nature of the subject 
 makes another form more convenient. Whatever be the form, however, the 
 pleadings should be such that the jury can find simply for the plaintiff or 
 the defendant, a special verdict is improper. Coleman v. Rowland, 0. S. ii. 571. 
 
 OUSTER. 
 
 1. Entry by mortgagee reclaiming the entire title is an ouster of other ten- 
 ants. Wood V. Gnffin, N. S. v. 703. 
 
 2. Assertion of title by the possessor of land is an important circumstance 
 indicating adverse possession and ouster of the real owner, and the absence 
 of such assertion may be an important circumstance indicating that the pos- 
 session is not adverse. Johnson v. Gorham, N. S. xii. 271. 
 
 OYSTERS. 
 
 1. The right to fish for oysters in the navigable waters of the state is com- 
 mon to all the citizens of New Jersey. Paul et al. v. Hazleton, N. S. xiv. 259. 
 
 2. The legislature may grant the exclusive right to only one citizen to 
 plant oysters in the bed of a stream. Id. 
 
 PALMER'S CASE. 
 
 Convicted of murder. 0. S. v. 44. 
 
 PARDON. 
 
 1. On the hearing of habeas corpus, it is error for a judge to refuse to receive 
 a pardon from the Governor, as a ground of discharge. Dominick v. Bowdoin. 
 N. S. xi. 335. ' 
 
 2. Pardons obtained by fraud are void. Id. 
 
 3. Pardons before conviction are based upon the confession of the accused, 
 and before such pardons take effect they must be accepted by the accused. Id. 
 
 4. Even if the Act of Congress, of January 24, 1865, were constitutional, 
 the oath could not be exacted from an attorney who has been pardoned by 
 the President for all offences arising from participation in the late rebellion. 
 Ex parte Garland, N. S. vi. 284. 
 
 5. Power of Governor of Kentucky to pardon. Common' th v. Ashhck, N. S. 
 vi. 441. 
 
 6. Under the Constitution of Georgia the Governor may exercise the par- 
 doning power before as well as after conviction. Dominick v. Bowdoin, N. S. 
 xi. 384. 
 
 7. A contract to pay money for the exercise of influence in procuring a 
 pardon is void as against public policy. Express v. Renal, N. S. xi. 750. 
 
 8. Under the Constitution the President's power of pardon does not include 
 the power to restore property forfeited to the United States. Knote v. UniUd 
 States, N. S. xiv. 367. 
 
 9. In the United States the power to pardon and to restore forfeited prop- 
 erty is vested in different parts of the government. Id. 
 
 10. A pardon is an act of mere grace, and is not founded on any preliminary 
 
PAEDON— PAEENT AND CHILD. 725 
 
 steps tlnat furnish legal merits or a legal title. Commonwealth ex rel. OrosseY. 
 _ JIalloway, N. S. ii. 474. 
 
 11. The intention of the Executive to grant a pardon can have no legal force 
 until carried into completed act. The completed act is the charter of pardon 
 delivered. Id. 
 
 12. By usage in Pennsylvania, the delivery of a pardon to the warden of a 
 prison is priviO, faeie equivalent to delivery, or is a constructive delivery to 
 the prisoner, but it is open to be proved no delivery by showing circum- 
 stances that are inconsistent with the intention to deliver it. Id. 
 
 13. A pardon procured by false and forged representations and papers is 
 void. Id. 
 
 14. Therefore, in a case where on the faith of a forged letter from the War 
 Department, asking for a pardon, and stating that the prisoner was wanted 
 for secret public service, and a pardon was executed by the Governor and 
 put into the hands of the United States Marshal, to be delivered to the pris- 
 oner on his performance of the service, and by the marshal delivered to the 
 warden of the prison in order to obtain the release of the prisoner. Held, 
 that this was not a delivery to the prisoner, notwithstanding the custom in 
 Pennsylvania to deliver pardons to the warden of the prison to keep as his 
 voucher. Id. 
 
 15. Even had this been a delivery, the fraud in obtaining the pardon would 
 have avoided it, although it was not shown that the prisoner had any hand in 
 perpetrating the fraud. Id. 
 
 16. Whether the statute of 27 Edw. 3, c. 2, is in force in Pennsylvania, 
 qusere f Id. 
 
 17. What is a pardon — who may pardon — what may be pardoned — condi- 
 tional pardons — void pardons — how taken advantage of — effect of. Note to 
 Commonwealth ex rel. Orosse v. Halloway, N. S. ii. 486. 
 
 18. Pardon pleaded before sentence discharges defendant from liability 
 for costs. Commonwealth v. Ahl, N. S. ii. 633. 
 
 PARENT AND CHILD. 
 I. Eights and Duties op Pakents and Childben Genekallt. 
 
 1. Parents, rights and liability of, discussed. 0. S. i. 641-705. 
 
 2. Dealings between — constructive fraud. Savery v. King, 0. S. v. 506. 
 
 3. The rule that there is no implied contract for compensation between 
 parent and child, on the one part for maintenance and education and on 
 the other for services, applies also between a child and a person assuming 
 the relation of parent to it. Duffy et al. v. Duffy, N. S. ii. 434. 
 
 4. Though the father is bound to maintain his child, yet if the latter is 
 taken and maintained by a relative without the father's previous request, 
 though with his assent, there is no implied contract by the father to reim- 
 burse the relative for his expenses on the child's account. Id. 
 
 5. Father claiming title must show death of son without issue. Stinch- 
 field Y . Emerson, N. S. vi. 186. 
 
 6. Contract made with the government by father in name of infant son- 
 rescission by government and assignment for value by the father in the 
 son's name — assignment binds all parties but the son. Putnam v. Hill, N. 
 S. V. 767. 
 
 7. Sending child two years and a half old across a street without an at- 
 tendant is negligence. Callahan v. Bean, N. S. iv. 445. 
 
 8. Children have no vested rights as heirs in their father's estate, while 
 he lives. Morgan v. Perry, N. S. xii. 326. 
 
 9. Although a parent be negligent, and permit a child of tender years to 
 wander off from his home and go upon a railroad "turntable," and the 
 child there receives a serious injury, railroad company would be liable for 
 injury sustained. Stout y.R. R. Co., N. S. xi. 226. 
 
 10. Where negligence was imputable to railway company in permitting 
 boys to ride on front platform of car. E. Saginaw St. R. Way v. Bohn, N. S. 
 xii. 745. 
 
 11. A father, acting in good faith, may make a valid gift to his minor 
 son of his time and future earnings, although insolvent at the time. At- 
 wood V. Holcomb, N. S. xii. 715. 
 
 12. A father is bound by the law to maintain and protect his children. 
 Stout V. R. R. Co., N. S. xi. 226. 
 
726 PAEENT AND CHILD. 
 
 13. A parent is under no legal obligation, independent of statutory law, 
 to maintain his minor child. Kelley t. Davis, N. S. xi. Gl. 
 
 14. How far the father is entitled to the custody of his infant child. N. S. 
 iv. 136. 
 
 15. A young woman, who was eighteen years of age, and unmarried, and 
 who usually supported herself by her own labor, being pregnant, and 
 about to be confined, returned to the house of her step-father and metier. 
 The girl was taken in labor (^he step-father being absent at his work). The 
 mother did not take ordinary care to procure the assistance of a midwife, 
 though she could have got one, had she chosen ; and in consequence of the 
 want of such assistance, the daughter died in her confinement. There was 
 no evidence that her mother had any means of paying for the services of the 
 midwife. Held, that there was, under the circumstances, no legal duty on 
 the part of the mother to call in a midwife, and consequently no such breach 
 of duty as to render her liable to be convicted of the manslaughter of her 
 daughter. The Queen v. Sarah Shepherd, Jan. 25, 1862, N. S. i. 447. 
 
 16. A child adopted under the act regulating the adoption of heirs, ap- 
 proved March 2d, 1855, is entitled to inherit from the adopting parent as 
 his heir in the degree of a child. Barnhizel v. Ferrel, N. S. xiv. 677. 
 
 17. By the adoption, he has the rights of a child of the adopting parent, 
 without being his child in fact. His identity is not changed. Id. 
 
 18. Under the law, a married man may adopt a child without his wife join- 
 ing in the petition, and the child may have an adopting father without an 
 adopting mother, with the right of inheritance from one and not from the 
 other. Id. 
 
 19. The rights of the lawful children of the adopting parent and the 
 adopted child are not changed or affected by the adoption. No right is given 
 them to inherit from or through each other. They are not only not brothers 
 and sisters, but they have no rights as such. Id. 
 
 20. By consenting to the adoption, the real mother consents that the adopt- 
 ing father shall occupy the position of a father to the child, and that she will 
 occupy that of a mother. She does not surrender her maternal rights, or her 
 rights of inheritance. Id. 
 
 21. On the death of the adopting parent the adopted child inherits from 
 him, and on the death of the child his real mother will inherit the property 
 so descending, to the exclusion of the children of the adopting parent. Id. 
 
 II. Right of Guabdianshp op Infant. 
 
 22. When contract by married woman separated from her husband, to give 
 up control of her children, is valid. Dumain v. Gwynne, N. S. v. 505. 
 
 23. Custody of infant belongs to father, but court will not of course on 
 habeas corpus order them delivered to him. State v. Baird, N. S. vii. 700. 
 
 24. At common law the father, in the first instance, is entitled to the cus- 
 tody of his children, but courts will exercise a sound discretion for the bene- 
 fit of the children in disposing of their custody. Sennet v. Bemiet, N. S. i. 762. 
 
 25. Mother entitled to custody of her infant child to bring it up in her 
 own religious belief. Reg. v. Clarice, 0. S. v. 537. 
 
 26. As to question of the religious belief in which children are to be in- 
 structed, see In re Kellers' minors, 0. S. v. 561. 
 
 III. Legitimacy. , 
 
 27. Law makes no presumptions about legitimacy — it is a question for 
 jury. Blackburn v. Crawforda, N. S, v. 511. 
 
 IV. Eaknings of ChiSd. 
 
 28. A minor having enlisted with his father's consent, is entitled to the 
 bounty paid by the town to which he was accredited. Baker v. Baker N S 
 viii. 509. 
 
 29. A minor son enlisting in the army with his father's consent, is entitled 
 to recover from his father all the money he earned and sent home during 
 such service. Ayer v. Ayer, N. S. viii. 636. 
 
 30. Suit by parent for child's earnings— emancipation. Brown v Ramsav 
 N. S. ii. 56. ■" 
 
 31. Rule requiring express promise to pay for child's services after coining 
 of age applies to adopted child. Lunay v. Vantine, N. S. vii. 764. 
 
PAEENT AND CHILD— PAETITION. 727 
 
 V. Action fob Loss or Seutioe of Daughter by Seduction. 
 
 32. Father may maintain an action for debauoliing liis daughter under age, 
 though she does not live with him. Greenwood v. Gh-eenv>ood, N. S. viii, 316. 
 
 VI. Advancements. 
 
 33. A parent cannot be charged for neoe?saries furnished to his minor 
 child, except upon a promise expressed or implied. Kelhy v. Davis, N. S. 
 xi. 61. 
 
 34. A promise cannot be implied from the omission of a duty resting on 
 moral obligation only. Id. 
 
 35. Questions of advancement depend upon the intention of the parent, 
 at the time when the property is received by the child. Miller's Appeal, N. 
 S. i. 498. 
 
 36. Money furnished by a parent for the education of a child will not be pre- 
 sumed to be an advancement, without proof that such was the intention of 
 the parent; for the education of a child is a parental duty ; nor is there such 
 u, presumption where security is taken from the child for the amount re- 
 ceived, or when the parent attempts to preserve evidence of it as a debt, by 
 note, bond, book account, or otherwise. Id. 
 
 PARKS. 
 
 Application by Park Commission of Detroit for mandamus on Common 
 Council to issue bonds to pay for park, refused. Constitutional power of the 
 legislature over cities in matters of local concern, discussed. Park Commis- 
 sioners V. Common Council, N. S. xiii. 524. 
 
 PAROL AGREEMENT. 
 
 If one party to a parol agreement has wholly or partially performed it on 
 his part, so that its nonfulfilment by the other party is a fraud, the court 
 will compel a performance. Johnson v. Hubbell et al., 0. S. v. 177. 
 
 PAROL EVIDENCE. See Trust, Evidence. 
 
 When not admissible to explain or vary written contract. See Fatter v. 
 Tallman, N. S. i. 376. 
 
 PARTIES AS WITNESSES. 
 
 1. Disqualification of, discussed. 0. S. v. 257. 
 
 2. Party in interest cannot take acknowledgment. GroesbecTe v. Seeley, N. 
 S. iv. 572. 
 
 3. A party applying for an order to examine a party to the record in a bill 
 in equity, must make it appear that the proposed witness is without interest 
 at the time the order is asked. Anspach v. Thompson et al., N. S. iv. 362. 
 
 4. Testimony of parties in criminal prosecutions. Subject discussed. N. 
 S. iv. 577. 
 
 5. Testimony of defendants in criminal prosecutions. Subject discussed. 
 N. S. T. 129, 705. 
 
 6. Where a party is called by the other side as a witness on the trial of a 
 cfise, the objection to his competency is removed for all purposes, and he 
 may be called at a subsequent period in the same trial as a witness in his 
 own behalf. Seiss v. Storch, N. S. y. 536. 
 
 7. Wife competent witness in her own behalf in an action against husband 
 and wife, for personal tort committed by wife alone. Hooper v. Hooper, N. S. 
 V. 64. 
 
 PARTITION. 
 
 1. Bill for partition will not lie, when the bill is denied or depends upon 
 doubtful faxjts or questions of law. Dewitt v. Ackerman, N. S. v. 61. 
 
 2. Where judgment was lien upon an individual half of land allotted in a 
 parol partition. Manlej/ v. Petlee, N. S. v. 486. 
 
 3. Where state court in Georgia had no jurisdiction to decree partition 
 of lands, the United States courts will take cognizance of a bill for partition 
 of lands and disregard previous judgment. Cmjler v. Ferrill, N. S. viii. 100. 
 
 4. Court will set aside and quash return of commissioners of partition 
 when made on wrong principles, or where there is great and evident inequal- 
 ity in the division. Hay v. Estell, N. S. viii. 125. 
 
 5. Parol promise by tenant in common to convey, no bar to suit for parti- 
 tion. Folhemus and Wife v. Hodson, N. S. viii. 127. 
 
728 PARTITION. 
 
 6. A decree in partition, that such portions he allotted to the different 
 tenants in common as they have respectively improved, is correct. Seale v. 
 Soto, N. S. viii. 509. 
 
 7. All the tenants in common should join in a, partition. Sutter v. San 
 Francisco, N. S. viii. 700. 
 
 8. Ordinarily, an application to a court of equity for partition is not an 
 appeal to the sound discretion of the court to be granted or refused accord- 
 ing to the circumstances of the case, as in cases of specific execution and 
 other cases, but the right to demand partition is ex debit o Justitise, if the com- 
 plainant can show a clear legal title. Vint v. King's Heirs, 0. S. ii. 712. 
 
 9. The bill for partition is a, substitute for the now obsolete remedy by 
 writ of partition in the law courts, and courts of equity in their proceedings 
 on these bills, as in other cases of concurrent jurisdiction, give the same relief 
 that was formerly afforded in the courts of law by writ of partition. Ques- 
 tions of fraud were not cognizable in these latter tribunals where a party 
 brought his writ of partition, and the same rule obtains in equity courts 
 whenever the plaintiff had his election to proceed either at law or in equity. 
 But where the complainant in equity stands upon a purely equitable title, of 
 ■which courts of law will not take cognizance at all, the jurisdiction of equity 
 is exclusive, and courts of equity are left free to adopt our cherished prin- 
 ciples, and to apply their power to detect and eviscerate latent frauds and 
 concealments which the process of a court of law is not adapted to reach, 
 and relieve against them. Vint v. King's Heirs, 0. S. ii. 712. 
 
 10. It seems that even where a plaintiff in equity seeking partition, shows 
 a clear legal title, if the defendant files a cross-bill alleging fraud in the 
 procurement of his conveyance by the plaintiff in the original bill, who, in- 
 stead of demurring to the cross-bill, answers and denies the fraud, and de- 
 positions are taken on each side to establish and repel the imputation of 
 fraud respectively, it is too late at the trial for the original plaintiff to object 
 that equity has no jurisdiction to examine questions of fraud on bills for par- 
 tition. The cross-bill filed by the defendant against a plaintiff is, to some 
 extent, n. substitute for an independent and original bill; and as after a de- 
 cree of partition in favor of a plaintiff showing a clear legal title, the defend- 
 ant would doubtless be entitled to relief in equity by a new bill impeaching 
 the plaintiff's title on the ground of fraud, no reason is perceived why the 
 same measure of relief should not be applied in favor of the plaintiff in the 
 cross-bill. The defendant having waived his right to object to the jurisdic- 
 tion of equity to take cognizance of questions of fraud in such cases. Fraud 
 is never presumed by the law, it must always be proved and the onus is iipon 
 the party alleging it. Id. 
 
 11. It is believed that both in England and in this country, a right to par- 
 tition is incident to all real estate heldl in joint tenancy, or tenancy in com- 
 mon. Wood V. Little, 0. S. ii. 853. 
 
 12. Upon a division, it is not necessary that the parts be made equal in 
 size or value, inasmuch as the party whose share is less in value may be 
 compensated in money, under the award of the commissioners. Id. 
 
 18. It is not a valid objection to a petition for partition, that the principal 
 part of the estate (as, for instance, a cotton factory) is not divisible into the 
 parts prayed for, without destroying it for the purpose for which it had been 
 erected and maintained, provided the division would not destroy it for other 
 purposes. Id. 
 
 14. By parol is invalid, notwithstanding boundariesmarked,and several occu- 
 pation of the purparts for less than twenty years. Ballou v. Hall, N. S. vii. 255. 
 
 15. Complainant must show title, and if disputed, must establish it by 
 action at law. Hay v. Estell, N. S. vii. 702. 
 
 16. A sale under a writ of partition is a judicial sale, and discharges the 
 lien of judgments, and of a mortgage by one of the tenants in common of hia 
 undivided portion. F. ^ M. Bank v. Girard Ins. Co., N. S. vii. 4G7. 
 
 17. Such mortgage is discharged in Pennsylvania, although it be a first 
 mortgage, and have priority of all other liens. The Acts of 1830 and 1846 
 only preserve the lien of such mortgage from discharge by sale under a writ 
 of execution. Id, 
 
 18. What irregularities in the proceeding for partition will not vitiate it. Id. 
 
 19. A vendee under articles, the purchase-money being unpaid, is a proper 
 party to an action of partition. Longwell y.Bently, 0. S. ii. 671. 
 
PAETITION— PARTNERSHIP. 729 
 
 20. Where proceedings are properly taken to bind unknown owners, they 
 are concluded as to a paramount title in severalty, as well as their interest in 
 common. Kane v. Rock River Co., N. S. iii. 509. 
 
 21. Sufficiency of proceedings to bind unknown owners. Id. 
 
 22. Bill to correct report of commissioners in partition after tliirtecu years 
 is too late. Hathaway v. Thayer, N. S. iv. 317. ~ 
 
 23. Between tenants in common by written agreement to refer to arbitra- 
 tors. Wilder y. Russell, N. S. yi. 383. 
 
 24. In petition for, in N. H., statute will be satisfied by setting off peti- 
 tioner's share only. Abbott v. Berry, N. S. vi. 383. 
 
 25. A decree in partition in Orphans' Court (Pa.) divides the subject 
 among the heirs ; it is no transfer of title to them. Vresher v. Water Co., N. 
 S. vl. 638. 
 
 26. Partition does not operate upon creditors; they are no parties thereto. Id. 
 
 27. What the adjudication therein assures. Id. 
 
 28. Title of purchaser at Orphans' Court sale, after partition among the 
 heirs. Id. 
 
 29. The surrender of the entire interest of a sister in real estate descended 
 to her and others, for a gross sum, constitutes a sale. Thomas v. Farmer's 
 Bank, N. S. x. 131. 
 
 30. The claim of a parcener who has surrendered her interest for a sum in 
 gross, bears no resemblance to a charge for owelty of partition. Thomas v. 
 Farmer's Bank, N. S. x. 131. 
 
 31. A court of equity will not interfere with proceedings in partition begun 
 at law, unless necessary to protect a party from fraud. Hall v. Piddock, N. 
 S. X. 849. 
 
 32. A tenant in common who has made improvements on the land is entitled 
 to an equitable partition. Id. 
 
 33. It is nobar that such improvements were made by the tenants in re- 
 version during the life estate. Id. 
 
 34. The report of a referee, not in accordance with the decree in partition, 
 is erroneous and must be set aside. Hobart v. Hobart, N. S. x. 412. 
 
 35. Where the rights of parties in partition have been adjudged by the 
 decree to be different from what they are in law, the decree must be re- 
 versed. Id. 
 
 36. Advancements made to a child during parents' lifetime must be pro- 
 vided for in the decree. Id. 
 
 37. On partition in equity the court will dispose of all questions between 
 the parties in relation to the land, and afford complete relief. Scott v. 
 Guernsey, N. S. xi. 132. 
 
 38. Where the title depends upon the construction of a will, and the de- 
 fendants are in possession, the court will not require the plaintiffs to first 
 try the question of title in an action of ejectment. Id. 
 
 39. On a bill for partition, the court will decree partition at once, if the 
 parties are agreed, without referring to commissioners. Davidson v. Thomp- 
 son, N. S. xi. 134. 
 
 40. In suits for partition in Texas, where there is no dispute as to the 
 title, the equities between the parties, growing out of improvements and 
 ameliorations, can be adjusted by the court, without the aid of the commis- 
 sioners appointed for that purpose. Oraig et al., appellants v. Smalley et al., 
 
 ":es, 0. S. viii. 497. 
 
 PARTNERSHIP. 
 
 I. What Constitutes a Partnekship as between the Paktneks and Third 
 
 Persons. 
 
 1. To enable creditors of a partnership to recover a debt against a person 
 as partner, on the ground that he held himself out as such, they must prove 
 affirmatively that he did so represent and hold himself out to them ; or, at 
 least, that they were informed of such representations before the credit was 
 given to the firm. Irwin et al. v. Conklin et al., N. S. i. 609. 
 
 II. Partnership Generally. 
 
 2. One partner has a lien upon the partnership effects for moneys ad- 
 vanced by him, beyond his share of the capital. Uhler v. Sentple, N. S. ix. 389. 
 
 3. He has no such lien for money advanced to or lent to an individual 
 partner. Id, 
 
730 PAETNERSHIP. 
 
 . 4. One partner cannot, in his own name, and for his benefit, insure the 
 interest of his copartner. Insurance Co. v. Hall, N. S. iii. 417. 
 
 5. Two partners under advice of a, friend made a settlement: evidence 
 that the friend was mistaken as to some fact is not material. Thompson v. 
 Bennett's Adminislratora, N. S. iv. 120. 
 
 6. A partner who has assigned all his interest to a co-partner, is not a 
 competent witness to prove that a deceased partner was to be allowed a 
 compensation for his services in managing the business. Lyon v. Ex'rs of 
 Snyder, N. S. xi. 400. 
 
 7. Notaries-public cannot act as partners or by agents. Bank v. Barksdale, 
 N. S. V. 442. 
 
 8. Knowledge of agency by one partner not constructive knowledge by his 
 firm. Baldwins. Leonard, N. S. vi. 563. 
 
 9. Several sureties paying the debt of their principal is no evidence of a 
 partnership between them. Bunker v. Tufia, N. S. viii. 188. 
 
 10. It is not necessary that a judgment should be first obtained against the 
 partner in whose name the property is vested, before a bill in equity can be 
 maintained for an account, and to have the property declared partnership 
 assets. Deveney v. Mahoney, N. S. xii. 63. 
 
 11. The rule that a fraudulent transfer of property can only be contested 
 by a judgment-creditor does not apply. Id. 
 
 12. The presumption is that a note given by a member of a firm in the 
 firm name is for partnership purposes. Carrier et al. v. Cameron, N. S. xiv. 588. 
 
 18. The burden of pi'oof is on the partnership to show the contrary. Id. 
 
 14. It is competent for the partnership to show that a note of the firm was 
 fraudulent in its inception as against the firm, and that the payee not only 
 knew it, but was party to the fraud. Carrier et al. v. Cameron, N. S. xiv. 5S8. 
 
 15. The member of a firm to whom partnership funds are intrusted, which 
 he invests in another partnership without his copartner's' consent, is liable 
 to account to the members of the old firm for money converted to his own 
 use. Seis v. Ecllman, N. S. xiv. 647. 
 
 16. One partner cannot apply partnership funds to the payment of his pri- 
 vate debts, without his partner's consent. Caldwell v. Scott and Trustee, N. S. 
 
 , xiv. 648. 
 
 17. It makes no difference whether the creditor knew it was partnership 
 funds or not. Id. 
 
 18. Although one partner release all his interest in the assets to the other, 
 the priority of partnership creditors in sucb assets still continues. Id. 
 
 19. Eeal estate purchased with partnership funds for partnership business, 
 is partnership property. Little v. Snedicor, N. S. xiv. -709. 
 
 20. Where the title is in a deceased partner the heirs will be treated as 
 trustees for the surviving partner. Jd. 
 
 21. A bill filed for an account and settlement of partnership affairs, pray- 
 ing that land be decreed partnership assets, should set forth the contract bf 
 partnership, and the contract of purchase of the land. Id. 
 
 22. In a question of partnership, evidence that the alleged partnership had 
 been formed fraudulently for the purpose of covering property from cred- 
 itors is not admissible. Thomas v. Moore, N. S. xii. 734. 
 
 28. The declarations of one partner are not admissible to prove that 
 another is a member of the firm. Johnson v. Gallivan. N. S. xii. 596. 
 
 24. Partners may provide for payment of private debts out of the residue 
 , after paying partnership debts. Turner v. Jaycox et al., N. S. iii. 318. 
 
 25. A married woman may belong to a trading partnership, if her husband 
 is not a member thereof. Flumer v. Lord, N. S. iii. 63. 
 
 26. Under ordinary circumstances, an authority given by a partnership 
 firm to its agent, to advance moneys for the purchase of notes or bills to be 
 remitted to the firm, will not justify the agent in continuing to make such 
 advances, after being" notified of a change in the firm by the admission of 
 new members. There must be a renewed authorization by the new firm. 
 Callaman-Y. Van Vleck, N. S. i. 636. 
 
 57. Money originally borrowed by one partner, in his individual capacity, 
 and a third person, upon their joint note, and subsequently by the consent 
 of such third person agreed to be appropriated to the borrowing partner's 
 individual use, cannot be collected of the firm or the other partner, merely 
 
PAETNEESHIP. 731 
 
 from the fact that they have had the benefit of it in their business, or that 
 the account of it is entered on their boolss, especially where the evidence 
 shows (hat neither the original loan, nor that from the third person to the 
 borrowing partner, was made upon the credit or for the benefit of the firm. 
 Tallmadge v. Panoyer, N. S. i. 311 . 
 
 28. A. and B. were two accredited agents of the New England Protective 
 Union — A. for the making of purchases, and B. for the selling of produce. 
 By the rules of the association, all purchases were required to be for cash, 
 and not on credit ; and this rule was known to both plaintiifs and defendants. 
 A. purchased from C, the defendant, goods to the value of $9,000 on credit, 
 but without the knowledge of B. Held, that no partnership existed between 
 A. and B., by which the latter could be compelled to pay the debts incurred 
 by the former, for the purchase of goods on credit, without B.'s knowledge, 
 in violation of the express terms of the partnership, known to the plaintifl's, 
 and in the absence of any fraud or deception practised upon them. Chapman 
 ^ Co. V. Devermx ^ Noyes, 0. S. ix. 419. 
 
 29. Where no credit is given, and no expectation, originally, of looking to 
 one partner for debts incurred by the other, no recovery against the former 
 can be had. Id. 
 
 30. Where C, the plaintiff, trusted A., one of the defendants, who were 
 partners, in violation of the rules of the partnership, which C. ought to have, 
 or might have known by inquiry, and in the absence of any deception, he 
 cannot look to B., the other partner, for payment of his debt, because such 
 debt was contracted without the scope of the partnership, and upon the in- 
 dividual liability of A. Id. 
 
 31. Partnership defined to be a joint interest in the net profits of an adven- 
 ture or business, or in the profits as aflfected by the losses. Cliapman ^ Co. 
 V. Devereiix ^ Noyes, 0. S. ix. 419. 
 
 32. Rights of creditors in equity — partnership real estate. In equity, 
 the creditors of an insolvent co-partnership have a right to the payment of 
 their claims out of the partnership property, superior to the right of cred- 
 itors of an individual member. All the members of a co-partnership have a 
 joint interest in the property, while the interest of each, as a separate mem- 
 ber, in his share of the surplus remaining after the payment of the part- 
 nership debts. Charles Orooker in Equity v. Wm. D. Croaker et al., 0. S. ix. 539. 
 
 33. And the implied trust or pledge, which each member of the partner- 
 ship has, that its property shall be applied to the payment of its debts, ex- 
 tends as well to the real estate which has been purchased for pai'tnership 
 uses, with the funds of the partnership, as to stocks, chattels or debts; not- 
 withstanding the real estate may have been convejed by such a deed as, under 
 our statutes, would at law make the partners tenants in common. Jd. 
 
 34. And where the creditors of one of the members of a co-partnership 
 had instituted suits at law against him, and attached his legal interest in 
 real estate thus conveyed, intending to levy thereon to satisfy their judg- 
 ments, when rendered, the court, in the exercise of its chancery powers, 
 will interpose to protect the right of the other partners, when the estate 
 attached will be required to pay the debts of the firm (including the firm's 
 liabilities to its individual members), and, if without it, the partnership will 
 be insolvent. Id. 
 
 35. An agreement between one partner and a third person, that the latter 
 shall participate in that partner's share of the profits of the firm, although, 
 as regards the other members of the firm he is not their co-partner. Fitch 
 and Others v. Harrington, 0. S. viii. 688. 
 
 36. When distinct partnerships are composed of same persons. Eule in 
 equity as to dealings between. Calcote v. Stanton, 0. S. iii. 49. 
 
 37. Parol evidence inadmissible to vary terms of the written articles of. 
 Brett V. Chillas, 0. S. iii. 407. 
 
 38. When same parties constitute three distinct firms, in case of bank- 
 ruptcy, the creditors of one firm can enforce payment of balance due it from 
 the other firms. Chalcote v. Stanton, 0. S. iii. 49. 
 
 39i Partners and part-owners — distinction hiiivieaTi,see Pragoffy. Eeslep, 
 0. S. i. 747. 
 
 40. When railway companies are liable as partners. N. S. i. 12. 
 
 41. A judgment against joint debtors, in one state, of no effect against 
 
732 PAETNEESHIP. 
 
 those not served, living in another state, though the statute of the state in 
 which judgment vras entered provided that it should bind the joint property 
 of all. Subject discussed, 0. S. iii. 204. 
 
 42. Where one partner is made sole agent and manages the business en- 
 tirely by himself, the relation becomes fiduciary. Brooks v. Martin, N. S. iv. 
 574. 
 
 43. Declarations of one partner admissible to prove^ partnership. Bennett 
 V. Bolmes, N. S. x. 204. 
 
 44. Criteria of partnership, subject discussed. N. S. x. 209. 
 
 45. In a question as to E. being a partner, H., of the firm of H. & F., tes- 
 tified to J. being a partner, and that E. asked for the books and said he had 
 as much interest as J, Held, that the books of H. & F. were admissible. 
 Frich V. Barbour, N. S. x. 407. 
 
 46. Partnership bills and notes, subject discussed. N. S. xi. 537. 
 
 47. An agreement for a joint contribution of capital, with a joint owner- 
 ship and sharing of profit and loss, constitutes partnership. Smith v. Small, 
 
 N. S. ix. 197. ^ 1. 1, 
 
 48. The giving of a note by a new firm, in exchange for a note of the old 
 firm, will not be deemed a payment, where the payee is ignorant of the 
 change of firm. Hills v. Marcy, N. S. xi. 269. And see Harrison v. Fope, 0. S. 
 iv. 313. 
 
 49. If the payee makes an absolute sale of the note without the assent of 
 the old firm, and thus treats it as his own, he is deemed to have taken it as 
 payment. Id. • , . 
 
 50. Parties holding themselves out to the world as partners will be liable 
 as such whether they are in fact or not. Sankey v. Hall, N. S. xi. 386. 
 
 51. The sayings of one partner are no evidence against another in an issue 
 of partnership or no partnership. Id. ' 
 
 52. Where one permits another to buy stock on joint account in anticipa- 
 tion of partnership and immediately after repudiates the agreement, he is 
 not entitled to any of the property bought, nor are his creditors. Rice v. 
 Sliuman, N. S. ii. 635. 
 
 53. What may be held proof of partnership as to third parties. Drennen ei 
 al. V. House et al., N. S. ii. 187. 
 
 54. Presence of partner, who understood English imperfectly, at conver- 
 sation resulting in submission of partnership matter to arbitration, not con- 
 clusive of his assent. St. Martin v. Thrasher, N. S. vii. 764. 
 
 55. Where a new partnership is in course of negotiation between an exist- 
 ing firm and a stranger, and the firm propose to put in the old stock at a 
 certain price, the maxim "caveat emptor" applies. Vhler v. Semple, N. S. ix. 
 389. 
 
 56. Manufacturing corporation cannot form partnership with an individual. 
 Whittenton v. Mills, N. S. iii. 184. 
 
 57. A participation in the profits, to constitute a partnership, must be a 
 general participation in the profits as such. Hargrove v. Conroy, N. S. viii. 253. 
 
 58. A share of the profits as compensation for services, will not constitute 
 a partnership, unless its gross inadequacy shows it to be a mere pretext to 
 avoid responsibility. Id. 
 
 59. A simple agreement by a firm, to employ one at wages to be measured 
 by a proportion of the profits, does not constitute him a partner. McMahon 
 V. O'Donnell, N. S. ix. 390. 
 
 60. Agreement for loan of money, subject to risks, payment of interest and 
 bonus, but excluding interest in profit and loss and control in business, will 
 not make party a partner. Gibson v. Stone, N. S. v. 61. 
 
 61. It requires a formal division, or a formal settlement of affairs, to put 
 two joint croppers in possession, each, of his own share. Usury v. Rainwater, 
 N. S. ix. 645. 
 
 62. The Act of Congress of March 19, 1862, does not prohibit a partner- 
 ship between a sutler and any other person, except an army officer. Wolcott 
 V. Gibson, N. S. ix. 645. 
 
 63. An agreement between R. and W. to plant and sell oysters, each to 
 have one-half the net profits, is a partnership. Ruckman v. Decker, N. S. xii. 
 468. 
 
 64. Articles of partnership are not evidence of the day it was formed, in an 
 
PARTNEESHIP. 733 
 
 issue between the partnership and third parties. Philpot v. Gruninger, N. S. 
 sii. 188. 
 
 65. Where a purchase of goods is made by a firm which it is stated will bo 
 formed at some future time, the purchase itself constitutes a quasi partner- 
 sliip. Stiles V. Meyer, N. S. xii. 405. 
 
 66. If one suffers another to hold him out as a partner or use his name in 
 business, he will be liable as such. Smith v. Bill, N. S. xii. 733. 
 
 67. Where B. sold part of a coal-lease to M., who constituted 0. his attor- 
 ney, and B. drew orders for goods on B. & Co., which were accepted by 0., 
 it is evidence of a partnership between B. and M. Thomas v. Moore, N. S. xii. 
 734. 
 
 08. A transfer by one co-tenant or partner to another is within the prohi- 
 bition of a policy of insurance which declares that alienation shall forfeit the 
 policy. Buckley v. Garrett, N. S. iv. 441. 
 
 69. Any member of a firm has authority to bind it by endorsing negotiable 
 paper to the firm. Barrett v. Russell ^ Flint, N. S. xii. 399. 
 
 70. Where the members of a firm authorize one partner to sign and seal 
 an instrument prior to its execution, it will be regarded as the deed of the 
 firm. Gibson v. ^Varden, N. S. xii. 119. 
 
 71. A party holding himself out as a par^ner will be so held as to one haV- 
 ing no knowledge to the contrary. Thomas v. Green, N. S. ix. 325. 
 
 72. Failure of one to pay in his proportion of the capital does not author- 
 ize others to exclude him from the partnership. Hartman v. Woehr, N. S. vii. 
 765. 
 
 73. The joining of two or more persons in a single adventure does not con- 
 stitute them copartners. Hurley v. Walton, Adm'r, N. S. xiv. 59. 
 
 74. If one partner insures in his own name only, and there is no evidence 
 to show that the insurance was for the partnership, or that the premium was 
 paid from the partnership funds, the policy will be held to cover his undi- 
 vided interest only. Insurance Co. v. Hall, N. S. iii. 417. 
 
 75. Jlay be entered into with reference to a custom or usage of the place 
 where the business is to be conducted. Waring y. Grady, N. S. xiii. 61. 
 
 76. Such custom will modify the partnership agreement. Id. 
 
 77. To protect a partner against it the agreement must be so framed, or 
 the partner must give notice of his dissent. Id. 
 
 78. Where all the partners except one appear to a bill for an account, and 
 allow it to be taken pro confesso, the court will not dismiss the bill without 
 reference to a master, upon the general denial of indebtedness by the one, 
 however positive it may be. Lawrence v. Rokes, N. S. xiii. 126. 
 
 79. Though equity will ordinarily give full effect to the Statute of Limita- 
 tions, relief will not be refused where peculiar circumstances appear to jus- 
 tify a delay. Id. 
 
 80. To operate as a bar the statute must be claimed in the answer. Id. 
 
 81. Whether actions of account or remedy by bill are subject to any other 
 than the general limitation of twenty years. Qusere ? Id. 
 
 82. Where partners purchase real estate with the money of the firm as 
 partnership property, upon the settlement of the partnership business brought 
 about by the death of one of the members of the firm, the proceeds of tlie 
 sale of the interest of the deceased partner in such real estate is to be re- 
 garded as land remaining in specie, after discharging its liabilities as part- 
 nership stock ; and the widow of such deceased partner is entitled to an in- 
 terest therein for her life only. Appeal of Belle D. Foster, N. S. xiii. 300, 
 
 83. On a bill by representatives of deceased partner against survivors, the 
 latter are only to be charged with such sum as the assets would. bring with 
 reasonable care and diligence. Moore v. Huntington, N. S. xiii. 334. 
 
 84. Nor are they to be charged with the real estate of the partnership, 
 the title to which is left by the decree to the heirs of the deceased partner. Id. 
 
 85. The representatives of a deceased partner have no right of possession 
 in partnership property. Pfeffer v. Steiner, N. S. xiii. 461. 
 
 86. The right of action for any trespass to the property of the firm rests 
 solely in the survivor. Id. 
 
 87. A partnership claim is not liable for the sole debt of one of the firm, 
 although the party owing the claim was not aware of there being a partner- 
 ship when he incurred it. Bartlett v. Woodward, N. S. xiii. 708. 
 
734 PAETNEESHIP. 
 
 88. Where a business is carried on by a firm, in wliicli an active partner 
 is a married woman, who is assisted by her husband, the husband, and not 
 the wife, is to be regarded in law as the partner. Sviasey v. Antram, N. S. 
 xiii. 577. 
 
 III. How FAK THE Acts of one Partner Bind the other. 
 
 89. Partner has no authority to submit partnership matter to arbitration 
 so as to bind the firm. St. Martin v. Thrasher, N. S. -rti. 764. 
 
 90. Where attorneys as partners recover a judgment, and after dissolution 
 one collects and fails to pay it over, the other is liable to an action for the 
 money. Bryant v. Hawkins, N. S. x. 746. 
 
 91. Firm not liable for debt contracted by partner in his own name, though 
 with partnership funds and for partnership purposes. N. Penn Coal Co.'s 
 Appeal, N. S. iii. 572. 
 
 92. A partner has power to compromise and discharge a claim of the part- 
 nership against a, third party. Noyes v. The New Haven R. R. Co., N. S. ii. 
 347. 
 
 93. And a payment to a partner is a good payment to the firm, although 
 the other partner or partners had given notice to the debtor not to pny to 
 such partner. Id. 
 
 94. Whether the power of a partner to bind the partnership by an execu- 
 tory contract, would not be affected by, a notice from the other partners re- 
 voking his authority. Qusere ? Id. 
 
 95. A member of a ditch company has no general authority, by virtue of 
 such membership, to bind the company by his contracts, like a member of a 
 partnership. McGonnell v. Denver, N. S. viii. 505. , -^ 
 
 96. One partner cannot plead usury to the contract of another, so as to 
 defeat a creditor's right to principal and legal interest. Dillon y. McRae, N. 
 S. ix. 645. 
 
 97. Nor can one partner sell the property to himself, though he may to 
 third parties. Comstock v. Buchanan, N. S. x. 131. 
 
 98. Not liable for money borrowed by individual partner. Donnally v. 
 Ryan, N. S. ii. 318. 
 
 99. The members of a partnership are not jointly liable in an action for a 
 fraud committed by one of the partners. Stewart v. Leoy, N. S. viii. 601. 
 
 100. When an incoming partner assumes the share of the liabilities of (he 
 firm belonging to an outgoing partner, it is a contract to indemnify such out- 
 going partner. Coleman v. Lanning, N. S. xii. 665. 
 
 101. If the money was loaned on the individual credit of the maker of the 
 note, the using of the money by the firm would not render the firm liable. 
 National Bank v. Ingraham, N. S. x. 412. 
 
 102. A note given by partners is not a joint and several obligation, in a 
 technical sense, though it has some of the qualities of a several obligation. 
 Mason v. Eldred, N. S. vii. 402. 
 
 108. Therefore a judgment upon a partnership note against one of the 
 makers is at common law a bar to a subsequent suit against the other part- 
 ner who had not been served with process in the first suit. Id. 
 
 104. But in Michigan the rule is otherwise by statute. Id. 
 
 105. Note in fact for partnership debt, but signed by one partner only, is 
 good against all as between themselves. Sprague v. Ainsworth, N. S. vii. 575. 
 
 106. Purchase by one partner of another's interest, with bond to indem- 
 nify. Bunton v. Dimn, N. S. vii. 447. 
 
 107. If a surviving parmer sell and convey his interest in the real estate 
 belonging to the partnership to a honS, fide purchaser for valuable consider- 
 ation, without notice, before a creditor of the firm has acquired a lien on the 
 same by bill filed to subject it to the payment of his debt, the purchaser will 
 hold it against the general equity of the creditors to have it appropriated to 
 the payment of the partnership debts. Offuit v. Scott, N. S. xii. 675. 
 
 108. Articles providing for continuance of partnership during continuance 
 of lease, renewable at option of one partner, he is not bound to renew, 
 Phillips V. Reeder, N. S. vii. 765. 
 
 109. Liability of firm for note discounted for use of one partner. Bank v. 
 Foster, N. S. v. 881. 
 
 110. A surviving partner cannot be held responsible on a contract made 
 ■without his assent or knowledge by another partner, after the firm has been 
 
PAETNEESHIP. 735 
 
 dissolved by the death of one of its members, although no notice of its disso- 
 lution has been given to the person with whom the contract was made. Mar- 
 lett V. Jackman, N. S. i. 505. 
 
 111. A., a member of the firm of A. B. & Co., made a note in the name of 
 A. and B. to his own order, and endorsed it with his own name and that of 
 the firm, all in his own handwriting, and had it discounted in the same city 
 in whicli the firm did business. Held, that there was nothing suspicious on 
 the face of the note as indicating a fraudulent purpose on the part of the 
 maker, or that it was not made for partnership purposes. Ihmsen v. Nagley, 
 O. S. iv. 383. 
 
 112. T. and B. were in partnership, and took shares in the Midland Rail- 
 road Company as partnership property. B. forged T.'s name to a deed of 
 transfer of the shares, purporting to be from T. and B. to L., for a nominal 
 consideration. The company acted on this deed, and entered the name of L. 
 as proprietor, and paid the dividends to B. for L., but B. appropriated the 
 same, T. having died before B. Held, the administrator of T. had a right of 
 suit in equity against the company, to replace the stock, and pay over the 
 dividends which had been fraudulently obtained by B. ; and it made no dif- 
 ference that there was no person capable of bringing an action at law. Mid- 
 land Railway Company v. Taylor, N. S. i. 372. 
 
 113. Where one of a firm draws a bill in firm's name on himself, accepts 
 it, and gets it discounted, it is primd facie for his own use, and the firm is not 
 liable, without evidence that it waa for their benefit. Cooper v. MeCluskan, 
 0. S. ii. 121. 
 
 114. As a surviving partner has a right to control and manage the partner- 
 ship eifects, for the payment of the partnership debts and liabilities, he can, 
 when the assets are not sufficient for the payment of all the debts of the firm, 
 make an assignment, by whicli some of the creditors will obtain a preference 
 over others in the payment of their debts. Wilson v. Soper, 0. S. i. 444. 
 
 115. And if the lot were partnership property, and used as such, the lease, 
 though made by one partner in his own name, would inure to the benefit of 
 the firm. Wilson v. Soper, 0. S. i. 444. 
 
 116. It is an incident of a common trading partnership that the managing 
 partners have authority to borrow money for partnership purposes, which 
 include the payment of partnership debts, incurred in the ordinary course 
 of business; and this authority is not excluded by special provisions in the 
 partnership deed as to the raising of additional capital, or supplying defi- 
 ciencies in the funds by contributions of the partners. Brown v. Kidger, 0. 
 S..vii. 511. 
 
 117. A creditor who agrees to accept the several notes of the partners in 
 payment of their share of a partnership debt, will be bound thereby, and 
 cannot maintain a suit against a partner who lias paid his note. Maxwell v. 
 Day, N. S. xiv. 59. 
 
 118. Taking a note, with or without security, from one of several joint 
 debtors, for a pre-existing debt, is a payment when so agreed. Id. 
 
 119. Where one partner, on dissolution, gives his note to the other for his 
 share, the latter agreeing to be responsible to a certain creditor, in a suit on 
 the note the partner may plead as a set-ofF that the debt agreed to be paid is 
 not paid, and he is still responsible. MuUevdore v. Scott, N. S. xiv. 60. 
 
 120. An answer of set-off is not demurrable because it does not answer the 
 entire complaint. Id. 
 
 121. The appropriation of firm property by one member of the partnership, 
 for his own debt, is presumed to be fraudulent as against the others. Cortcin 
 v. Suydam, N. S. xiv. 125. 
 
 122. Such presumption may be rebutted. Id. 
 
 123. The receipt of part of the profits of a business is not conclusive evi- 
 dence of partnership. Eastman v. Clark, N. S. xiv. 125. 
 
 124. The question of such a party's liability is whether he is a principal, 
 and whether he is estopped to deny that he is a principal. Id. 
 
 125. To eijable one partner to pay his individual debt with partnership 
 property, the consent of the other is necessary. Toddy. Lorah, N. S. xiv. 198. 
 
 126. Such consent may be inferred from the partner's knowledge and 
 silence, when he ought to speak. Id. 
 
 127. In a suit by one partner against the other for the amount agreed to be 
 
736 PAETNEESHIP. 
 
 paid by the latter on a dissolution, the defendant cannot set up as a defence 
 the false representations of the plaintift' as to value of stock and credits, 
 unless he shows that he relied upon such representations, and made the agree* 
 ment on the faith thereof. Van Trott v. Wdsae, N. S. xiv. 255. 
 
 128. A party who seeks to rescind an entire contract for fraud of the other, 
 must offer to return whatever he has received. Id. 
 
 129. Where S. and H. entered into business October 1, 1871, to continue 
 until April 1, 1875, unless, at expiration of eighteen months, the business 
 did not pay, when S., who furnished all the capital, might terminate it ; if 
 the capital is all lost by August, 1872, S. may terminate the partnership, 
 paying H. wages until April 1, 1873. Hill v. Smalley, N. S. xiv. 261. 
 
 130. A partner is a trustee, and the same rules and tests are to be applied 
 in determining his liability to his copartners as a're applied to other trustees. 
 Fomeroy v. Benton, N. S. xiv. 306. 
 
 131. If a partner secretly uses the partnership funds in outside operations, 
 the profits are the property of the firm, and the latter are entitled to an ac- 
 count and payment. Id. 
 
 132. Where a party is in a position of trust and confidence, and therefore 
 under obligation to disclose all material facts, his representations of facts as 
 true, without an examination whether the statement contains the whole truth, 
 is as much a breach of trust as a wilful falsehood. In such a case, equity 
 treats omission as a fraud in itself. Id. 
 
 133. Two persons, who, as managers of a "brewing company's" business, 
 give notes in their own name, contract debts, have the entire control of the 
 business, and receive for their services five per cent, commissions on all sales, 
 are clearly partners. Heise v. Barth, N. S. xiv. 398. 
 
 134. Notes made by one partner in the name of the firm, after dissolution, 
 of which no notice was published, are binding on the other partners in the 
 hands of bond, fide holders for value, without notice of the dissolution. Tay- 
 lor V. Hill, N. S. xii. 260. 
 
 135. 'VY'is''® 0^6 partner has had entire charge of the business, he is to be 
 debited with the whole capital, as well as the proceeds of sales made by him. 
 Gunnell v. Bird, N. S." x. 70. 
 
 IV. Of Dormant and Special Partners. 
 
 136. Requisitions of the statutes in regard to limited partnership must be 
 strictly complied with. Pierce v. Bryant et at, N. S. ii. 508. 
 
 137. Creditor need not prove special loss from want of such compliance. Id. 
 
 138. Fact that note is signed by individuals composing a firm, not sufficient 
 to prove it a partnership debt in a contest between creditors. Gay v. John- 
 son, N. S. V. 700. 
 
 139. Creditor may sue secret partner, when discovered. Hichardson v. 
 Parmer, N. S. v. 447. 
 
 140. Special partner of insolvent firm cannot claim as creditor till all 
 others are satisfied. Hayes v. Heyer, N. S. vi. 383. 
 
 141. Otherwise where such special partner is a general partner in another 
 firm, creditor of the first. Id. 
 
 142. A secret partnership is where the existence of certain persons as 
 partners is not made known to the public by any of the partners. Deering 
 V. Flanders, N. S. xi. 61. 
 
 143. A person accustomed to deal with a firm will hold a retiring dormant 
 partner for debts subsequently contracted by the firm, unless he has notice 
 of the retirement. Id. 
 
 144. Unless all the requisites of the Act of March 30, 1865, of Pennsyl- 
 vania, relating to special partnerships, are strictly complied with, the part- 
 nership will be general. Vandike v. Rosskam, N. S. xi. 200. 
 
 145. But a special partner is not so liable, though he may have done some 
 act unconnected with the trespass, which would make him generally liable 
 for the debts of the firm. McKnight v. Ratdiff, N. S. iii. 810. 
 
 146. Special partner cannot claim as a creditor of an insolvent firm, of 
 ■which he was a member. Dlmnin^s Appeal, N. S. iii. 312. 
 
 147. Special partner cannot be made personally liable, except by his own. 
 acts, or those of his partners, which he knows and assents to. Singer v. 
 Kelley, N. S. iii. 310. 
 
 148. To charge a. secret partner, it is necessary to show that the debt was 
 
PAETNEESHIP. 737 
 
 contracted in the name and business of the firm, and that he had an interest 
 in the profits. In re Munn, N. S. xii. 461. 
 
 149. Where the purchaser of a note did not know that there were any secret 
 partners, they would not be liable. Id. 
 
 150. The fact that the purchaser afterwards proved his claim in bankruptcy 
 against the signers of the note alone, goes to prove that he discounted on 
 their liability. Id. 
 
 151. Circumstances under which dormant partners are not liable. Id. 
 
 152. The acts and declaration of a person not a- partner are not admissible 
 to charge him as a partner, without showing that they were brought home to 
 the plaintiffs knowledge. Fitch v. Harrington, 0. S. viii. 688. 
 
 V. Or THE Real Estate held by a Partnership, and of the Liabiliti of the 
 Joint and Separate Property. 
 
 153. An execution issued against A., a member of a firm, was levied upon 
 his interest in the firm properly ; then a second, issued against B., the other 
 partner, was levied on his interest; afterwards a third against A. and B., as 
 partners, was levied on the firm property. It was held, that the sheriff ought 
 to have sold, on the writ against the firm, the interest of all the partners, and 
 to have paid the firm debts in preference to those of the individual creditors. 
 Rex, Silvas ^ Co. v. Lommon and Machlin, 0. S. vi. 745. 
 
 154. Lien of partner for advances made under the articles of co-partner- 
 ship. Hall V. Hyde, 0. S. iv. 442. 
 
 155. On the distribution of the proceeds of a sheriffs sale of partnership 
 property, the holder of a judgment nominally against only one of the part- 
 ners may show that it was in fact founded on a partnership debt, and thus 
 entitle it to rank with judgments against the partnership. Mans y. The 
 Comm., 0. S. iv. 442. 
 
 156. Partnership estates should be first exhausted to pay partnership 
 debts. Morrison v. Kurtz, 0. S. iii. 637. 
 
 157. A sheriff acting under an execution, at the suit of a judgment-creditor 
 of one partner in a firm, can sell and deliver no part of the partnership goods, 
 but only the contingent interest of the debtor partner in the stock and prof- 
 its, after settlement of partnership accounts, and payment of partnership 
 creditors. Deal v. Bouge, 0. S. i. 249. 
 
 1-58. The mortgagee of an undivided half of real estate, owned by a part- 
 nership, but mortgaged by a member of the firm for his debt, cannot fore- 
 close as against the sheriff's vendee of the land, sold under a judgment 
 against the firm for a debt contracted before the execution of the mortgage. 
 Kislner v. Sindlinger, N. S. x. 667. 
 
 159. The joint creditors of a partnership have an equity to prevent the 
 transfer and sale of the property of the firm among the members where the 
 same is fraudulent. Flack v. Charon, N. S. viii. 700. 
 
 160. On an execution against one partner, the sheriff can only levy on the 
 interest of the partner in the firm; he cannot seize the goods of the firm. 
 Vandike v. Rosskam, N. S. xi. 200. 
 
 161. The attachment of the separate property of a partner for a partner- 
 ship debt takes precedence of an attachment by a separate creditor, if the 
 separate debt was not contracted until after the laying of first attachment. 
 Miles V. Pennock, N. S. xi. 269. 
 
 162. Guarantee of private debt of one partner in contemplation of insol- 
 vency cannot be proved against the joint estate by a creditor who knew the 
 firm to be insolvent. Phillips v. Ames et al., N. S. ii. 698. 
 
 163. On failure of firm and sale of the land, partnership-creditors only are 
 entitled to proceeds. N. Penn Coal Co.'s Appeal, N. S. iii. 572. 
 
 164. Where the separate estate of an insolvent partner is more than sufB- 
 cient to pay his separate debts, the surplus is to be applied to paying joint 
 debts before paying interest. Thomas v. Minot, N. S. iii. 185. 
 
 165. The interest of one partner in the firm property is not subject to levy 
 and sale under an attachment. Patterson v. Trumbull, N. S. ix. 644. 
 
 166. Partnership lands, personal property. Moran v. Palmer, N. S. v. 62. 
 
 167. Levy on land of a partner for partnership debt cannot be defeated by 
 an attachment of individual creditors. Bowker v. Smith, N. S. viii. 575. 
 
 168. Where a partnership firm becomes insolvent, having partnership prop- 
 erty and partnership creditors, and also separate property and separate 
 creditors, and the partnership creditors exhaust the partnership property, 
 
 47 
 
738 PAETNEESHIP. 
 
 the separate creditors have a priority of right to receive an equal percentage 
 of their claims out of the separate estates, and if anything remains it is to be 
 distributed among both classes of creditors pari passu. Northern Bank of 
 Keniuch/ v. Keizer, N. S. v. 75. 
 
 169. History and state of the law on subject of partnership and separate 
 creditors. Note to Bank v. Keizer, N. S. v. 78. 
 
 170. The rule that partnership creditors must look to partnership assets 
 only applies in civil cases. Morgan v. Skidmore, N. S. ix. 826. 
 
 171. Liability to accept bills drawn by partners, ^woaii certain transactions. 
 Nichohon v. Ricketta, N. S. iv. 317. 
 
 172. A mortgage executed by one of the members of a firm in his own 
 name, but for the firm, and upon property held in his name, but in trust for 
 the firm, with this agreement in it, " He assuming the payment of certain 
 notes given for the purchase-money of the land," is the joint contract of all 
 the partners, and not the several contract of each. Orosby v. Jerolman, N. S. 
 xii. 665. 
 
 173. Land bought with partnership funds will be treated as partnership 
 property. Deveney v. Mahoney, N. S. xii. 63. 
 
 174. The same rule applies to improvements made with partnership funds 
 on the separate property of a partner. Id. 
 
 175. A deed to persons as tenants in common, who are partners, must gov- 
 ern as to purchasers and creditors in distributing the proceeds of a sale of 
 the title. Ebbert's Appeal, N. S. xii. 405. 
 
 176. As to creditors the effect of such a deed cannot be changed by parol 
 evidence. Id. 
 
 177. As to the partners the lands may be assets of the partnership. Id. 
 
 178. Partners can direct the application of firm funds, and secure their 
 identity in the kind of title they take. Id. 
 
 179. A partner with the knowledge of his copartner converted to the use 
 of the firm money received by him as a United States deputy collector of in- 
 ternal revenue. Held, that a bond of the firm ^iven to indemnify the sure- 
 ties of the deputy collector was valid as a partnership obligation. Wharton 
 V. Clements, N. S. viii. 299. 
 
 180. Such bond valid as an indemnity, although executed before the sure- 
 ties had made good the defalcation, and although in form it was a bond for 
 the payment of money. Id. 
 
 181. When partnership property is sold under separate executions against 
 the partners individually, the proceeds represent the several interests of the 
 partners, and not that of the partnership. Vandike's Appeal, N. S. viii. 316. 
 
 182. An execution on a judgment against partners for a partnership debt 
 may be levied upon the individual property of either partner, although the jJart- 
 nership property is sufficient to make the debt. Bank -v. Spragiie,Vi. S.ix. 326. 
 
 183. Each partner being liable in solido for the firm engagements, has a 
 right to have the firm assets applied in the first instancfe to the payment of 
 the firm debts. Manhattan Ins. Co. v. Webster, N. S. viii. 757. 
 
 184. Although it is a general rule, that on the death of a partner, whose ■ 
 individual estate is inadequate to the payment of his separate estate, jsari 
 passu, with the separate creditors ; yet if upon a settlement of the partner- 
 ship accounts, there is a balance found due to the surviving partner, after all 
 the firm assets have been exhausted, he will be permitted, to the extent of 
 that balance, to come upon the separate estate, and have a pro rata portion 
 thereof with the separate creditor, inasmuch as the balance so found due is 
 substantially a debt due from the deceased to the surviving partner. Busby's 
 Adm'r v. Chenault ^ Co., 0. S. i. 445. 
 
 185. The lien of a judgment for a partnership debt upon the separate real 
 estate of one of the partners, will not be postponed to the lieu of a judg- 
 ment of a separate creditor which is subsequent in date, by reason of any 
 equitable priority of the latter over the separate assets. Samuel C. Cummina'a 
 Appeal, 0. S. iv. 384. " 
 
 186. The rule of equity, that partnership creditors shall have a preference 
 as to partnership property, and separate creditors as to separate property, 
 has no application to a suit in equity by a judgment creditor of the firm, 
 against the judgment debtors, and their assignee, to set aside as void an as- 
 signment of property belonging to one of the partners, and to establish the 
 lien of the complainant's judgment thereon. Loring v. Pairo, 0. S. viii. 441. 
 
PARTNERSHIP. 739 
 
 187. Tlie debts of a partnership are in equity joint, and several ; and a 
 person having a debt against a partnership, may, on the death of one of the 
 partners, come immediately against the estate of that partner, and have his 
 claim allowed, by the commissioners pari passu with private claims, though 
 the surviving partner be solvent and within the jurisdiction of our courts. 
 Camp V. Grant and Others, Administrators, 0. S. i. 570. 
 
 188. Though the creditors of a partnership are entitled to a priority of 
 payment, as between them and creditors of an individual partner, out of the 
 partnership funds, so long as they continue partnership funds ; yet they 
 Lave no specific liens thereon. Allen and Another v. The Centre Valley Co. and 
 Others, 0. S. i. 570. 
 
 189. A sheriff acting under an execution at the suit of a judgment-creditor, 
 of one partner in a firm, can sell and deliver no part of the partnership 
 goods, but only the contingent interest of the debtor partner in the stock 
 and profits, after settlement of partnership accounts, and payment of part- 
 nership creditors. Deal et al. v. Bogue, 0. S. i. 801. 
 
 190. The only levy that can be made on such an execution, consistently 
 with the principles of the partnership relation, is of the debtor's interest in 
 the whole stocls, and that is to be measured by final account. Id. 
 
 191. Where one partner sued the sheriff, his deputy, and the execution 
 creditor, in trespass for seizing and selling the partnership goods on an execu- 
 tion against his co-partner, and the defendants pleaded not guilty ; Held, that 
 the non-joinder of all the owners as plaintiffs could only be taken advantage 
 of by plea in abatement, and that plea was too late after the general issue 
 pleaded. Id. 
 
 192. The sheriff and his deputy were liable as trespassers in such case, in 
 virtue of their office. The plaintiff in the execution would not be a tres- 
 passer, unless he did something more than merely issue his writ; but if he 
 attended the sale and bought part of the property, he is liable as a tres- 
 passer. Id. 
 
 193. The purchaser of the Interest of one of several partners has no right 
 to interfere personally in the affairs of the partnership, and a refusal of the 
 remaining partner to permit him to do so will not entitle him to the inter- 
 ference of a court of equity by injunction, or the appointment of a receiver. 
 McOlemey v. Cox, 0. S. i. 34. 
 
 194. A provision in partnership articles that neither of the partners should 
 sell or assign his interest without consulting the other parties', and giving 
 them the preference, does not by implication authorize the introduction of a 
 stranger into the firm by one of the partners, on a refusal by the rest to pur- 
 chase his share. Id. 
 
 195. Settlement of accounts of several firms composed principally of the 
 same members and preferences of partnership creditors discussed. See Years- 
 ley's Estate, 0. S. i. 636. 
 
 196. Individual property is not embraced by a mortgage executed by part- 
 ners on their partnership property unless specifically mentioned. Reid v. 
 Goodwin, N. S. xi. 333. 
 
 VI. Of the DlSSOLnTIO» of the PaETNEHSHIP and its CoNSEQtJENCE AND OF 
 
 THE Rights of a Sokviving Partner. 
 
 197. Real estate purchased by a partnership for partnership purposes, and 
 paid for with partnership funds, as to the creditors of the firm is, in equity, 
 treated as personal property, and will, ifneoessary,be subjected to the payment 
 of their debts, whether the title be conveyed to the partners by name, or to 
 one of them, or to a third person. Offutt et al. v. Scott, N. S. xii. 575. 
 
 198. In case of the death of one partner, the survivor is a trustee for all 
 persons interested in the partnership, for the creditors of the firm, for the 
 representatives of the deceased partner or his heirs, and for himself; and 
 for the purpose of closing up the business of the firm, he is invested with the 
 exclusive right of possession and management of the whole partnership prop- 
 erty and business. Id. 
 
 199. If goods shipped and consigned to a firm doing a commission business, 
 to be sold on account of the shipper, are received, but before they are sold 
 one of the partners dies, the survivor may sell such goods, and in such case, 
 the claim of the shipper on account of such sale is properly against the firm, 
 and not against the survivor individually. Id. 
 
 200. On the termination of the partnership, the. personal property remain- 
 
740 PAETNEESHIP. 
 
 ing in their possession, is held in common, and one cannot dispose of the 
 other's share without his consent. Ruckman v. Decker, N. S. xii. 468. 
 
 201. Where a promissory note is made by one of the partners in a firm, 
 and the partnership name is subscribed thereto by him, by which the firm, 
 jointly and severally, promise to pay to the payee the aam specified therein, 
 the partner who made the note may be sued upon it alone, without joining 
 the other as a defendant. Snow v. Howard, N. S. i. 379. 
 
 202. A bill for account by one partner after termination of partnership 
 makes all the parties actors, and all their claims among themselves should 
 be settled on it. Raymond v. Game, N. S. iv. 445. 
 
 203. Retiring partner liable to creditor of the firm, unless the latter had 
 notice or was put on inquiry. What amounts to notice. Zollar v. Janvrin, 
 N. S. vii. 252. 
 
 204. Leading article on the dissolution of. 0. S. vii. 129. 
 
 205. A deed of partnership contained a clause enabling one of the part- 
 ners to determine the partnership on giving to the other a three months' 
 notice. In pursuance of this clause notice of intention to determine was 
 given. Before the expiration of the three months the partner who gave 
 the notice died. Held, that the partnership was determined by and on the 
 death of the partner, irrespective of the notice. Bell v. Nevin, N. S. vi. 181. 
 
 206. In a, suit to dissolve, where the facts established are such as would 
 entitle complainant on final hearing to a decree, a receiver will in general 
 be appointed. Seighortner v. Weiasenbom, N. S. ix. 388. 
 
 207. Courts of equity will, for sufficient cause, dissolve a partnership be- 
 fore the expiration of the term for which it was entered into. Id. 
 
 208. Where profit cannot be obtained, the partnership should be termi- 
 nated. Id. 
 
 209. Settlement of a double partnership, owning lands, on death of part- 
 ner in both firms. Shearer v. Paine, N. S. vi. 442. 
 
 210. A judgment of foreclosure on the mortgage against the one member, 
 is a bar to any suit against his partners who were jointly liable. Crosby v. 
 Jeroloman, N. S. xii. 665. 
 
 211. Partner may withdraw at any time and cause technical dissolution 
 of firm. Slemmer's Appeal, N. S. viii. 637. 
 
 212. Equity will not decree dissolution and appoint a receiver unless on 
 good grounds. Id. 
 
 213. An individual and a manufacturing corporation cannot form a co-part- 
 nership, and such nominal partnership cannot be put into insolvency. Whit- 
 teuton V. Mills, N. S. iii. 184. 
 
 214. On dissolution, majority have no right to dispose of another's share 
 without his consent, or to compel him to sell or divide, except by judicial 
 proceedings. Phillips v. Reeder, N. S. vii. 765. 
 
 215. Authority of partner to settle the aflFairs of the concern after disso- 
 lution remains the same as it was before. Robbing et al. v. Fuller, N. S. 
 ii. 185. 
 
 216. A court of equity will not dissolve a partnership for every act of 
 misconduct of a partner. Cash v. Earnshaw, N. S. xiv. 587. 
 
 217. A clear case of positive and meditated abuse must be made out. Id. 
 
 218. Loss occurring through mere error of judgment, is not sufficient cause 
 to dissolve. Id. 
 
 219. Action must be in name of survivors, where one of the partners is 
 dead, for debt due partnership. Strang v. Hirst, N. S. xiii. 126. 
 
 220. The death of a partner is ipso facto a dissolution of the partnership. 
 Nelson v. Hayner, N. S. xiv. 587. 
 
 221. In equity the surviving partners are treated as trustees of the repre- 
 sentatives of the deceased. Id. 
 
 222. If they do not account in a reasonable time, chancery will grant an 
 injunction and appoint a receiver. Id. 
 
 223. A payment to one partner in merchandise, though after dissolution 
 of the firm, is good, if the party did not know of the dissolution. Kenney v. 
 Altvater, N. S. xiv. 758. 
 
 224. The purchase of merchandise by one partner, being within the scope 
 of the business of the firm, the payment to him was in fulfilment of the con- 
 tract. Id, 
 
 225. The misapplication of the payment would not render it invalid. Id. 
 
PAETNEESHIP. 741 
 
 226. A delivery to one partner in good faitli is a delivery to both, eacli 
 having authority to receive it. Kinney v. Altvaler, N. S. xiv. 758. 
 
 227. A person dealing with a firm must have notice of its dissolution in 
 order to avoid his transactions with one partner after dissolution. Id. 
 
 228. A letter sent by mail is not sufficient without evidence of its re- 
 ceipt. Id. 
 
 229. The rule that letters properly directed and sent are evidence of dis- 
 honor, etc., of negotiable paper, is restricted to commercial paper. Id. 
 
 230. The rights and liabilities of a deceased partner devolve upon the sur- 
 viving partner. Hanna v. ^^'ray, N. S. xiv. 760. 
 
 231. In a settlement with the representatives of the deceased partner, the 
 survivor is entitled to credit for a judgment for a firm debt, recovered 
 against him. Id. 
 
 232. By the laws of war a partnership was dissolved, but the third and 
 loyal partner was not a surviving partner, the others not being civilly dead. 
 Allen V. Russell et al., N. S. iii. 3til. 
 
 233. A sole surviving partner has the entire legal title to all the partner- 
 ship assets, and the riglit to turn thfem into an available and distributable 
 form. Barry v. Briyga, N. S. xi. 536. 
 
 234. An order appointing a receiver to take charge of the property held 
 by a surviving partner, is an order divesting the legal estate of such part- 
 ner, and a degree from which an appeal lies, in any stage of a cause. Id. 
 
 235. Where one partner is dead, in a suit against the survivor, the plain- 
 tiff is not a competent witness. Hanna v. Wray, N. S. xiv. 760. 
 
 VII. Of Actions by and against Partners. 
 
 236. Where a promissory note made by n. partnership firm to one of its 
 members, for money advanced by him to the firm, is endorsed by the payee 
 to another after maturity, the holder may maintain the action thereon 
 against the makers. Sherwood v. Barton, N. S. i. 682. 
 
 237. In a suit against two as partners on contract, the question would be 
 whether they were partners in that contract. Kirk v. Hartman, N. S. x. 70. 
 
 238. To entitle the holder to recover against the partners, on a note made 
 by a member of the firm, he must prove either that the money was borrowed 
 on the credit of the partnership, or that it was used in the business of the 
 firm. National Bank v. Ingraham, N. S. x. 412. 
 
 239. The admissions of one partner are evidence against the others in a 
 bill against all for partnership liabilities. Ruckman v. Decker, N. S. xii. 468. 
 
 240. Heirs of deceased partner cannot be made parties to a suit involving 
 the title to lots assigned by the surviving partner of an insolvent firm. 
 Rothwell V. Dewees, N. S. iii. 50. 
 
 241. Without an express promise to repay, assumpsit will not lie for ad- 
 vances between partners, until there has been a settlement. Leidy v. Messin- 
 ffer, N. S. xii. 734. 
 
 242. This rule applies whether the partnership property exists or not. Id, 
 
 243. Damages for breach of a partnership contract cannot be set off against 
 one partner in a suit on an individual contract of his own. Jackson et al. v. 
 Clymer, N. S. ii. 635. 
 
 244. Levy on partnership property — action against sheriff. Smith v. 
 Orser, N. S. iv. 768. 
 
 VIII. Of Actions between Paetnebs. 
 
 245. If the capital be misappropriated by one partner, no remedy is fur- 
 nished by action, unless a balance is struck and a proinise made to pay the 
 same. Smith v. Smith, N. S. ix. 197. 
 
 246. Assumpsit does not lie between partners until a settlement is made 
 and a balance struck. Leidy v. Mesainger, N. S. xii. 734. 
 
 247. Under the code of Indiana a partner can sue his partner. Page v. 
 Thompson, N. S. x. 667. 
 
 248. In the absence of an express agreement, one partner cannot charge 
 another for his personal services in managing the business. Lyon et al. v. 
 ExWs of Snyder, N. S. xi. 398, 
 
 249. A partner obtaining a lease of the partnership premises, without his 
 copartner's consent, and before the partnership ends, will be considered as 
 holding in trust for the firm. Mitchell v. Reed, N. S. xi. 463. 
 
 250. It is otherwise where the lease is to begin after the partnership ex- 
 pires, and there is nothing in the articles contemplating an extension. Id. 
 
742 PAETNEESHIP. 
 
 251. Where one partner is liable to his co-partner for a portion of the 
 partnership funds, the form of action is for money had and received. Haim- 
 fordv.Eaimford, ii.S. i-s..718. 
 
 252. Equity will enjoin one partner from violating the rights of his co- 
 partner. Marble Co. v. Ripley, N. S. x. 204. 
 
 253. One of three partners overdrawing his share is liable to others jointly, 
 but not to one of them alone, though he be assignee of the otliers. Wiggins 
 V. Oummings, N. S. iv. 317. 
 
 254. Evidence that, by the articles of partnership, one partner has no 
 right to endorse negotiable paper, is inadmissible to defeat a bon&Jide holder. 
 Michigan v. Eldred, N. S. ix. 509. 
 
 IX. What is the Intekest of each Pabtner in Paetneeship Peopeett. 
 
 255. What may be considered income and what principal where a special 
 partnership of testator is continued by trustees. Kinmoulh v.Jirigliam et al., 
 K. S. ii. 698. 
 
 256. The interest of a partner is only his proportion of the capital or prof- 
 its after all the debts are paid. Manhattan Insurance Co. v. Webster, N. S. viii. 757. 
 
 257. A partner has an insurable interest in the entire stock, and on the 
 receipt for a loss of insurance he must account to the firm. Id. 
 
 258. Judgment signed in firm name, but first names of partners are not set 
 out on index, is not a lien against subsequent purchasers or lien-creditors. 
 Smith's Appeal, N. S. iv. 255. 
 
 259. Partners estopped from setting up claim to lands, sold by one partner, 
 when they have sold the land received in exchange therefor and proceeds 
 reofeived by partnership. Moran v. Palmer, N. S. v. 62. 
 
 260. The interest of a partner in the partnership property consists in his 
 ratable proportion of the assets after the payment of all the debts of the 
 partnership. In a suit in equity for a settlement of the co-partnership 
 affairs, no decree can rightfully be made for the payment by one partner of 
 any sum to another except upon this basis. Hayes v. Reese, N. S. i. 183. 
 
 X. Business and Objects oe the Paetneeship cannot be Changed without 
 
 Mutual Consent. 
 
 261. One partner cannot become the owner of the partnership property 
 without the consent of the others. Comstoch v. Buchanan, N. S. x. 131. 
 
 262. It is the right of a partner to hold his associates to the specified pur- 
 poses whilst the partnership continues. Kean v. Johnson, 0. S. v. 58. 
 
 XI. PowEB TO Sell and Assign Paetneeship Peopeett. 
 
 263. Bon&fide sale by firm of the partnership property before proceedings 
 by creditor conveys the same clear of lien of creditor. Reed v. Shuck, 0. S. iv. 634. 
 
 264. Partners have the power, while the partnership assets remain under 
 their control, to appropriate any portion of them to pay or secure their indi- 
 vidual debts. Hank of the Metropolis v. Sprague, N. S. ix. 326. 
 
 265. Upon the dissolution of a partnership, the partners may agree that 
 one of them shall become the owner of a particular promissory note, payable 
 to the firm, and upon this agreement, and without any assignment of the note, 
 the property therein is vested in the partner to whom it is thus delivered, and 
 he may afterwards transfer it, by delivery merely, to another. Mickerson v. 
 MePaddin ^ Moore, 0. S. i. 381. 
 
 266. Partnership property, assignment of for payment of preferred claims, 
 see Assignment. 
 
 267. Where a member of a late copartnership files his individual petition 
 under the Bankrupt Act, he will be entitled to be discharged from all his 
 debts, individual as well as copartnership. Se Abbe, N. S. vii. 824. 
 
 268. Power of partner to make assignment for benefit of creditors. Book 
 T. Stone, N. S. iv. 120. 
 
 269. Assignment for benefit of creditors by two members of a firm while 
 the other two are out of the country, is not valid. Coope v. Bowles, N. S. iv. 122. 
 
 270. But assignee is allowed credit for payments in good faith, before the 
 action to set aside the assignment. Id. 
 
 XII. How PAR Liable fob Tobts. 
 
 271. A party is liable for a tort committed by his copartner in connection 
 with the general object of the firm. Lucas v. Bruce, N. S. iv. 95. 
 
 272. Partners are liable for trespass by themselves or their employees in 
 the conduct of their business. McKnight y.Ratcliff, N. S. iii. 310. 
 
PARTNEESHIP— PARTY-WALLS. 743 
 
 XIII. Partner cannot Refuse to Account. 
 
 273. After the contract, of partnership has been carried out, the partner 
 holding the proiits cannot refuse to account because the operations were 
 against public policy. Brooks t. Martin, N. S. iv. 574. 
 
 274. The rule among partners is, if, after applying the assets, there are 
 still outstanding liabilities, the partners must contribute in proportion to 
 their shares, or if there is a surplus, it will be distributed among them in 
 like proportion. Erickson v. Nesmith, N. S. vi. 494. 
 
 275. Partnersljip accounts must be settled in one proceeding, by account 
 render or bill in equity. Leidy v. M^essinger, N. S. xii. 734. 
 
 XIV. How the Good- Will is to be Dealt with. 
 
 276. How the good-will is to be dealt with in partnerships. Subject dis- 
 cussed. N. S. ix. 65. 
 
 XV. Application op Patments. 
 
 277. The rule for the application of payments is that they are to be applied 
 to the earliest items in the account, especially when incoming partner has 
 assumed his share of the old liabilities. Coleman v. Lanning, N. S. xii. 665. 
 
 278. Individual partners are entitled to exemption out of partnership 
 assets. Howard v. Jones and Starke, N. S. xiii. 457. 
 
 279. Partner in firm about to fail, may use his private estate to pay private 
 creditors. Banks v. Fitch, N. S. vii. 59. 
 
 280. One partner cannot set off a claim due him individually by a bank, in 
 an action by the receiver of the bank to compel the payment of moneys col- 
 lected by the firm as attorneys of the bank. Bowling Green Savings Bank v. 
 Todd et al., N. S. xii. 593. 
 
 281. Nor has he any lien upon the papers on which a foreclosure suit is 
 brought, for his individual claim. Id. 
 
 282. The creditors of a firm will hold funds in hands of insurance com- 
 pany due on policy belonging to firm, in preference to creditors of each indi- 
 vidual partner. Burbank ^ Son v. McClure ^ Co., and Trustees, N. S. xiv. 645. 
 
 283. After a dissolution of a partnership, by bankruptcy or otherwise, the 
 powers of the several partners to affect each other by new contracts cease. 
 Gates V. Beecher, N. S. xiv. 440. 
 
 PARTY-WALLS. 
 
 1. A party-wall belongs to the party who builds it, and equity will restrain 
 another from breaking into it until he pays for it. Masson v. Besanson's Ap- 
 peal, N. S. xii. 402. 
 
 2. In an action of trespass for an alleged injury to the plaintiff's wall by 
 inserting joists into it, evidence that the wall was so used under a parol 
 agreement with plaintiff is admissible in mitigation of damages. Hamilton 
 V. Windolf, N. S. xii. 286. 
 
 3. An agreement between adjoining owners of a town lot, A. and B., that 
 
 A. might build a party-wall equally upon the land of both, and that whenever 
 
 B. should build upon his lot so as to use the. wall, he would pay one half of 
 the cost thereof, is not a covenant running with the land so as to entitle C, 
 who had purchased A.'s lot, upon the performance of the condition as to the 
 use of the wall, to sue B. for the money. Block v. Isham, N. S. vii. 8. 
 
 4. Early English laws concerning. Principles applicable to. Sfote to 
 Block V. Isham, N. 8. vii. 10. 
 
 5. A division wall may become a party-wall by agreement, either actual or 
 presumed ; and although such wall may have been built exclusively upon the 
 land of one, if it has been used and enjoyed in common by the owners of 
 both houses for a period of twenty years, the law will presume, in the absence 
 of evidence showing that such use and enjoj'ment was permissive, that the 
 wall is a party- w,all. In such cases, the law presumes an agreement between 
 the adjacent owners, that the wall sh|tll be held and enjoyed as the common 
 property of both. Brown v. Werner, N. S. xiv. 354. 
 
 6. An action was brought to recover damages for injuries done to the 
 plaintiff's house by the careless and negligent manner in which the house of 
 the defendant, next adjoining, was improved, and for the direct losses conse- 
 quent upon such injuries, sustained by the plaintiff in his trade and business. 
 ifeld. That the plaintiff was entitled to recover such damages as would be 
 sufficient to reinstate the wall and the house in as good condition as they 
 
744 PAETY-WALLS— PASSENGER. 
 
 were prior to the injury, and to compensate him for the loss consequent upon 
 the interruption of his business. Brown v. Werner, N. S. xiv. 354. 
 
 7. Equity will not decree a party-wall to be taken down if it projects 
 slightly over complainant's land, and he was aware of it while it was build- 
 ing. Mayer's Appeal, N. S. xiii. 396. 
 
 8. The complainant has his right to damages. Id. 
 
 9. Right to lateral support from an ancient party-wall. Fhillipa t. Bord- 
 man, N. S. ii. 64. 
 
 10. Compensation for, in city of Camden, N. J. Sunt y.Ambruater, N. S. v. 61. 
 
 11. Ordinance authorizing erection not repugnant to Constitutions of U. S. 
 or N. J. Such laws are reasonable and useful regulations. Id. 
 
 PASSENGER. ' 
 
 1. Power of railroad company to recover for violation of rules. Comments 
 on, N. S. i. 6. 
 
 2. Passenger riding free, injury to, see Negligence. 
 
 3. The United States Express Company had the use of a portion of the 
 baggage car on a passenger train of the Union Pacific Railway Company, 
 Eastern Division, and their travelling agents, called express messengers, 
 were allowed to ride on this car without paying fare. Other passengers 
 ■were excluded therefrom. The plaintiff, by an arrangement with the express 
 messenger and a local agent of the express company at the state line, went 
 into this car for the purpose of learning the route, so that he might take the 
 express messenger's place in his absence. The plnintiff waS introduced to 
 the express messenger, as an express messenger learning the route, and 
 afterward he acted as such, assisting the regular express messenger along 
 the route. The conductor allowed him to ride on the baggage car without 
 paying any fare. Tiiere was plenty of room in the passenger cars for him. 
 He was not, in fact, an express messenger, nor was he in the employ of the 
 express company in any manner whatever; the express messenger and the 
 agent at the state line not having any authority to employ him in any capacity. 
 The baggage car was turned over and the plaintiff injured. Held, in an 
 action by the plaintiff against the railway company, for damages for such 
 injuries, that the plaintiff was not a passenger, nor entitled to the rights of 
 a passenger. U. Pacific R. R. Co. v. Nichols, N. S. xi. 32. 
 
 4. A passenger from Baltimore to West Chester, possessing a through 
 ticket, good over both roads, attempted at the junction to pass from the 
 Baltimore car and enter the West Chester car, but being encumbered with 
 bundles, and the West Chester train moving on without stopping a reason- 
 able time to make a transfer of the passengers, he missed his footing, fell to 
 the track, and had his right arm crushed by the wheels of the car. Held, 1. 
 Under the arrangement between the railroad companies for through tickets, 
 it was their duty to give a reasonable time for the transfer of passengers , 
 and their baggage. 2. The wrong of the company in not allowing a reason- 
 able time for such transfer, together with its influence upon the mind and 
 act of the passenger, should be considered in discussing the question of negli- 
 gence. 3. The judge below should have left it to the jury to say, under all 
 the circumstances in evidence, whether the danger of boarding the train 
 when in motion was so apparent as to have made it the duty of the plaintiff 
 to desist from the attempt. He should have left the question of negligence 
 on the part of the plaintiff to be determined by the jury upon the circvim- 
 Btances. Johnson v. Railroad Co., N. S. xi. 159. 
 
 5. The plaintiff purchased of the defendants a commutation ticket, which 
 conferred upon him the right to ride in the cars upon the defendants' railroad 
 between the city of New York and the town of Westport during the ensuing 
 year, upon certain conditions. One of the conditions was that the ticket 
 should be shown to conductors when requested, or when required by the rules 
 of the company. One of th'e confpany's rules in force during the year re- 
 quired commuters to show their tickets to conductors when required, in the 
 same manner as other passengers. At the time of purchasing the ticket the 
 plaintiff signed a receipt containing similar conditions. During the year, 
 while the plaintiff was riding in the defendants' cars between New York and 
 Westport, he was requested by the conductor to show his ticket. • The plain- 
 tiff had his ticket upon his person, but was unable to find it at the time, and 
 so informed the conductor. The conductor knew that the plaintiff was a com- 
 
PASSENGEE. 745 
 
 mutor, and that the time covered hy his ticlcet had not expired, but acting 
 in accordance with the instructions of the defendants, he demanded of the 
 plaintiff his fare for the trip, and on his refusal to pay it ejected him from 
 the train. Held, that the plaintiff was not bound to produce his ticket imme- 
 diately when requested, but was entitled to a reasonable time to find it. and was 
 entitled to ride as long as there was any reasonable expectation of finding it 
 during the trip ; that under the circumstances the production of his ticket by 
 the plaintiif was the merest formality, and that in the absence of an express 
 stipulation in the contract that the plaintiff should pay the fare of the passage 
 unless the ticket should be produced, his failure to produce the ticket was 
 not such a breach of the contract as to justify the defendants in rescinding it, 
 and treating the plaintiff as a trespasser on the train ; and that if the defend- 
 ants had a right to eject the plaintiff from the train, they had no right to do 
 so elsewhere than at a regular station on the road — that any rule or regu- 
 lation of the defendants which required or allowed such an act to be done 
 between stations to a person in the condition of the plaintiff was unreasona- 
 ble and void. Maples v. N. Y. ^ N. H. Railroad Co., N. S. xii. 231. 
 
 6. Penalties under the Passenger Act (of Congress) of 1848, can only be 
 recovered by action of debt on the common law side of the District Court of 
 the United States, and not by libel in Admiralty'. The penalties are personal, 
 and there is no lien on the vessel, and no remedy in rem. to enforce them. 
 United States v. Urii/ Neptune, 0. S. iii. 48. 
 
 7. Passenger on steamboat — responsibility of owners of steamboats for 
 thefts committed on them. Vanderpool v. Steamboat Crystal Palace, 0. S. iii. 
 493. 
 
 8. Eailroad companies are liable for injuries inflicted by their servants 
 upon passengers. Hanson v. European ^ N. A. Railroad Co., N. S. xiv. 197. 
 
 9. If the servant is first assaulted, he may use sufficient force to overcome 
 opposition, but the resistance being ended he cannot pursue and punish the 
 wrong-doer. Id. 
 
 10. Disobedience of the rules, will justify the refusal to carry further, but 
 not the maltreating of a passenger. Id. 
 
 11. A passenger who buys a ticket from one point to another is not entitled 
 to get oft' at an intermediate point, and continue his journey at another time. 
 Vankirk v. Fennst/lvania Railroad, N. S. xiv. 462. 
 
 12. Conductor has no right to take up the ticket and then put him off, 
 ■when he offers to pay if the ticket is retained. Id. 
 
 13. By denying his right to ride he waives all right to the ticket. Id. 
 
 14. Declarations of the ticket agent made after selling the ticket, are 
 admissible as evidence of passenger's good faith in claiming right to 
 ride. Id. 
 
 15. Libel in rem. against the vessel and in personam against the captain 
 and owners to enforce penalties, held by C. C. of U. S. that the penalties 
 could only be recovered in an action of debt on the common law side of the 
 court and not by libel — that the penalties were personal and there was no 
 lien on the vessel. U. S. v. Briff Neptune and Owners, 0. S. iii. 48. 
 
 16. A passenger who refuses to pay his fare until provided with a seat in 
 a particular car, may be ejected. Pittsburgh R. R. Co. v. Van Houten, N. S. 
 xiv. 589. 
 
 17. Where a passenger of the nautical profession who has rendered salvage 
 service, afterwards assumed and exercised illegitimate authority over the 
 vessel. The Pennsylvania, N. S. xiii. 561. 
 
 18. The right of a conductor to put off a passenger refusing to pay his fare. 
 McClure V. P., W. ^ B. R. R. Co., N. S. xi. 61. 
 
 19. The servants of a railroad company may remove a passenger who re- 
 fuses to pay his fare. Chicago,R. I. Sf P. R. R. Co. v. Herring, N. S. xii. 196. 
 
 20. Where a heavily loaded team was on the public street, in which was 
 laid, and in public use, a horse railroad, one of the wheels being on the 
 railroad track, and the team moving at a slower speed than the horse car, 
 the teamster was asked to remove his team from the horse railroad, but did 
 not. This is a violation of the public right, and indictable. Comm'th v. Tem- 
 ple. 0. S. viii. 678. 
 
 21. Common carriers of passengers have the legal right to make reasonable 
 and proper rules and regulations for the conduct and accommodation of all 
 
746 PASSENGER— PATENT. 
 
 persons who travel by their conreyances. Coger t. N. W. Union Packet Co., N. 
 S. ?iii. 162. 
 
 22. The sale of a ticket to a passenger is a contract to carry such passen- 
 ger according to their rules and regulations. Id. 
 
 23. It is negligence for a passenger to project his arm out of the window 
 of a railroad oar, and if injured by an external object cannot recover through 
 negligence on the part of the railroad company in permitting an obstacle too 
 near the track. P. ^ C B. R. v. Andrews, N. S. xiii. 566. 
 
 24. Plaintiff being invited by the conductor, got into the caboose of a coal 
 train and rode without paying any fare. An accident occurred through the 
 negligence of the conductor, whereby plaintiff was injured. Company not 
 liable. Eaton v. D.^L.W. R. R. Co., N. S. xiii. 665. 
 
 25. The law implies in the contract of carrying passengers by railroad 
 companies, that they shall provide a safe and sutficient road and cars, com- 
 petent and careful conductors and hands, and safe and convenient means of 
 egress and regress from the line of the road. There must be no negligence 
 on their part. There is also, on the part of the passenger, an implied assent 
 to all the company's reasonable rules and regulations for entering, occupy- 
 ing, and leaving their cars, and if injury befall him, by reason of his dis- 
 regard of regulations which are necessary to the conduct of the business, 
 the company are not liable in damages, even though the negligence of their 
 serv.ants concurred with his own negligence in causing the mischief. Penn- 
 sylvania Railroad Company v. Zehe, 0. S. viii. 27. 
 
 26. For baggage of passenger, liability on continuous roads. Stratton v. 
 R. R. Co., 0. S. V. 310. 
 
 PASSENGER ACT. 
 
 1. The limitation of two passengers for every iive tons of a vessel's meas- 
 urement, by the first and second sects, of the Passenger Act of 1819, has 
 been repealed by the tenth sect, of the Act of 1849. United States v. The 
 Anna, 0. S. ii. 421. 
 
 2. No conviction can be had under the Passenger Act of 1847, except 
 where an illegal number of passengers has been taken on board at a foreign 
 port, with the intention of bringing them into the United States, and where 
 such illegal number has actually been brought in ; or where an illegal number 
 has been taken on board at a port in the United States, with the intention to 
 transport them to a foreign port. The mere intention to violate the law, 
 formed in a foreign country, and not completed by the illegal importation, is 
 insufUcient. Id. 
 
 8. In the determination of the liability of the vessel, under the Passenger 
 Act of 1847, the court will be guided by the custom-house measurement, 
 which has been delivered by the surveyor of the port to the master or owner 
 of the vessel, in preference to any subsequent measurement on the part of 
 the government. Id. 
 
 4. The term "personal baggage," in the Act of 1847, only includes wear- 
 ing apparel, bed and bedding of the passengers, required for theii comfort 
 and convenience of the voyage, and does not extend to furniture, stores, or 
 other articles, not necessary for their personal convenience. Id. 
 
 5. The principles by which the court will be guided in the determination 
 of the cases under the Passenger Act of 1847, Id. 
 
 PATENT. 
 
 I. Generally. 
 
 1. For land — boundaries more important than quantity in description. 
 Stein V. Ashby, 0. S. iii. 57. 
 
 2. Priority of invention, subject discussed, N. S. xi. 601. 
 
 3. Reducing an invention to practice, subject discussed, N. S. xi. CI 2, 
 665. 
 
 4. Patenting a principle, subject discussed, N. S. vii. 129. 
 
 II. For what G ranted. 
 
 5. Claim for "any mode of combining" certain devices, not good. Case v. 
 Brown, N. S. iv. 575. 
 
 6. For chemical process valid, though the article produced was known 
 before. Young v. Fernie, N. S. iv. 317. 
 
 7. For public improvements in the manufacture of cast-steel by the use 
 
PATENT. 747 
 
 of carbonate of manganese. In an action for infringement, evidence tliat 
 for eight or ten years before tlie grant of the patent, five firms had manu- 
 factured steel in the manner described in the patent, and had used and sold 
 the steel so manufactured in the way of their trade, three of the firms veith- 
 out concealment. Held, sufficient to establish such a prior public use as to 
 invalidate the patent. Heatli y.Vhwin, 0. S. iii. 126. 
 
 8. A principle is not patentable, because a principle is a fundamental truth, 
 an original cause, a motive, and in this no one can claim an exclusive right. 
 Leyroy v. Tatham, 0. S. i. 248. 
 
 9. At common law au inventor has no exclusive right to his invention. 
 Such right is the creature of the statute, by which alone the right claimed 
 in any given case must be determined. Morton v. New York Eye Infirmary, N. 
 S. ii. 672. 
 
 10. In its strict sense, a discovery is not patentable. Id. 
 
 11. The discovery of the use of ether in surgical operations, though of 
 inestimable benefit to the human race, was merely the discovery of a more 
 perfect effect of the action of well-known agents, operating by well-linown 
 means upon well-known subjects, and as such was not legally entitled to be 
 patented. Id. 
 
 12. The invention embraced in plaintiffs patents of 1847 and 1853 was not 
 a raker's seat, but it was the improvement of his machine by which it was bal- 
 anced, and the shortening of the reel, so that room was made for the raker's 
 seat on the extended finger-bar, this being his invention and claim, to this 
 his exclusive right is limited. Had he claimed generally a seat for the raker, 
 the claim would have been invalid, by reason of the prior knowledge and use 
 of rakers' seats in reaping-machines. MoCormick's raker seat was new in 
 its connection with his machine; but his invention did not extend to a raker's 
 seat differently arranged. MeCormick v. Manny, 0. S. iv. 277. 
 
 13. A mechanical equivalent is limited to the principle called for in the 
 patent, including colorable alterations, or such as are merely changes as to 
 form. Id. 
 
 14. When court of equity will set aside a patent of the United States. 
 Hughes v. United States, N. S. vi. 443. 
 
 III. Letters Patent. 
 
 15. It is the duty of the commissioner of patents, upon being satisfied of 
 having made a mistake, in supposing that prior inventions would be covered, 
 if the claim was made broader than the applicant makes it, to grant a reissue 
 with a broader claim. Morey v. Lockwood, N. S. ix. 126. 
 
 16. The assignment of a patent must be in writing. Davy v. Morgan, N. 
 S. ix. 645. 
 
 17. Where the question is on the validity of a patent, the jurisdiction of 
 the United States courts is exclusive. H. T. Slemmer's Appeal, N. S. viii. 637. 
 
 18. In a joint invention, each party should invent or discover something 
 essential to the whole result. Id. 
 
 19. A joint patent taken out on the sole invention of one, or a sole patent 
 on an invention of more than one, is void. Id. 
 
 20. Any person has a right to demand a copy of a patent from the com- 
 missioners of patents, on tender of legal fees ; and an action will lie against 
 the officers for refusing it. Bayden v. Burke, 0. S. i. 376. 
 
 21. The officer is not bound to comply with a demand which is accompanied 
 with personal insult and abuse ; but if another demand be made in a proper 
 manner, the officer cannot withhold a copy till an apology be made for the 
 previous insult. Ill temper and bad manners do not work a forfeiture of a 
 man's civil rights. Id. 
 
 IV. Specification. 
 
 22. The means specified in the patent to produce the effect and nothing 
 more, are secured to the patentee, and there can be no infringement unless 
 the same substantial means are used in both the plaintiff's and defendant's 
 machines. American Fin Co. v. Oakville Co., 0. S. iii. 136. 
 
 23. The stand or position for the forker invented and patented by John H. 
 Manny, is a new and useful improvement and different in form and principle 
 from MoCormick's patents of 1847 and. 1853. MeCormick v. Manny et al., 0. 
 S. iv. 277. 
 
 24. Although the construction of a specification belongs to the court, the 
 explanation of technical terms of art, commercial phrases, and the proofs 
 
7481 PATENT. 
 
 and results of the processes which are described in it, are matters of fact, 
 upon which evidence may be given, contradictory testimony adduced, and 
 therefore upon which it is the province of the jury to decide : but when those 
 portions of a specification are made the subject of evidence and brought 
 within the province of the jury, the direction to be given to tlie jury with 
 regard to the construction of the rest of the specification, which is conceived 
 in ordinary language, must be a direction given only conditionally ; that is, 
 a direction as to the meaning of the patent upon the hypothesis or basis of 
 the jury arriving at a certain conclusion with regard to the meaning of the 
 terms used, the signification of the phrases and the truth of the process de- 
 scribed in the specification. Hills v. Evans, N. S. i. 374. 
 
 25. Where a city charter provides that no contracts shall be made by the 
 city, except with the lowest bidder, it does not prevent the city from con- 
 tracting for a patented article. Hobarl v. Detroit, N. S. vii. 741. 
 
 26. Where the city authorities could not contract at all for laying the 
 Nicholson pavement, the right to lay it being a patented right. Dean v. 
 Charlton, N. S. vii. 564. 
 
 27. The fact that an article is patented, does not necessarily prevent any 
 person but the patentee from contracting to supply it. Bobart v. Detroit, N. 
 S. vii. 741. 
 
 28. For chemical substances should state the component parts with clear- 
 ness and precision. Tyler v. City of Boston, N. S. viii. 253. 
 
 29. Our patent system — subject discussed, N. S. viii. 321. 
 
 30. Patent for a machine is for it, not for its " mode of operation " or 
 "idea:" Burr v. Duryee, N. S. iv. 116. 
 
 31. A machine may consist of distinct parts, and some or all these parts 
 may be claimed as combinations. In such an invention, no part of it is in- 
 fringed unless the entire combination or the part claimed shall have been 
 pirated. McCormick v. Manny, 0. S. iv. 277. 
 
 32. In his patent of 1845, for improvements in the reaping machine, the' 
 plaintiff claimed the combination of the bow L. and dividing iron M. for sepa- 
 rating the wheat to be cut from that which is left standing, and to press the 
 grain on the cutting sickles and the reel. The defendant's wooden divider 
 does not infringe that claim of complainant's patent which embraces the 
 combination of the bow and the dividing iron, as he does not use the iron 
 divider which the plaintiff combined with the wooden. Id. 
 
 33. Where the plaintiff's patent calls for a reel post, set nine inches behind 
 the cutters, which is extended forward and connected with the tongue of the 
 machine to which the horses are geared, it is not infringed by a reel- 
 bearer extending to the hind part of the machine and sustained by one or 
 more braces. The only thing common to both devices is supporting the end 
 of the reel nearest to the standing grain. In their combinations and connec- 
 tions and in everything else the devices are different. Id. 
 
 V. Assignment and Permission to Use. 
 
 84. Sale of worthless patent not a sufficient consideration for promissory 
 note. Lester v. Palmer, N. S. ii. 62. 
 
 35. There is a distinction between the grant of a right to make and vend 
 a machine, and a grant of the right to use it. Bloomer v. McQuewan, 0. S. i. 471. 
 
 36. Queere? Whether Congress could pass a law which should deprive the 
 citizen of the use of his property after he had purchased the absolute right 
 to use from the inventor. Id. 
 
 87. An assignment of the revenues of a railroad, by the company, to a 
 preferred creditor, and the use of the rolling-stock, is not a transfer of cor- 
 porate entity or property. And the use, by the assignee, of cars which have 
 attached patented brakes, does not render him liable to account for infringe- 
 ment upon the patent right, when the exclusive use of the brakes had been 
 licensed to the company by the patentee. The assignee used the brakes as 
 an agent of the company, and not as a purchaser ; and his use of them, in 
 the name of the company, was exclusive in the meaning of the license. 
 Emigh V. Chamberlain, N. S. i. 207. 
 
 38. Exclusive license to use of patent, where extends to assignee for credit- 
 ors. Id. 
 
 39. Purchaser of machine frdm grantee of right to sell, may use machine 
 after expiration of his vendor's license. Bloomer v. Millinger, N. S. iii. 695. 
 
PATENT. 749 
 
 VI. Inpringement. 
 
 40. Where M., in 1853, purchased a right to construct and use certain 
 patent machines, and under this right did construct and put in operation the 
 machines, the right to their use does not terminate -with the expiration of 
 the original patent, but still continues under an extension or enlargement 
 of the grant by Act of Congress. Bloomer t. McQuewan, 0. S. i. 471. 
 
 41. Circuit Court of United States having jurisdiction in equity in contro- 
 Tersies in regard to patents do not act as auxiliary to a court of law, and do 
 not require the patentee first to establish his legal right in a court of law. 
 Sanders v. Logan, 0. S. ix. 475. 
 
 4'2. Injury done by infringement — the measure of damage is the price or 
 value of a license to use it. Id. 
 
 43. Injunction is not the proper remedy in such cases. Id. 
 
 44. A court of law may treble the actual damage. Id. 
 
 45. Abandonment may take place within two years prior to the application 
 for a patent. Id. 
 
 46. The extent of the rights secured to the patentee stated, and the case of 
 O'Eeilley v. Morse cited and affirmed. American Pin Co. v. Oakville Co., 0. S. 
 iii. 136. 
 
 47. The inventor of an unpatented medicine has no exclusive right to 
 make and vend the same; but. if others make and vend it, they have no 
 right to vend it as the manufacture of the inventor, nor to adopt his label or 
 trade-mark, nor one so like it as to lead the public to suppose the article to 
 which it is affixed is the manufacture of the inventor, and they are equally 
 liable for the damage whether such trade-mark be adopted by fraud or mis- 
 take. Davis V. Kendall, 0. S. ii. 681. 
 
 48. The plaintiff having first applied the name of "Pain Killer" to a 
 medical compound made and sold by himself, it was held that the application 
 of the same name to a similar compound sold by the defendant, bottled and 
 labelled in a somewhat similar way, was an infringement of the plaintiff's 
 trade-mark. Id. 
 
 49. Patent for a combination of distinct parts is not infringed by a combi- 
 nation omitting one part, and substituting a substantially different one. 
 Eames v. Oodfrey, N. S. iv. 116. 
 
 50. Where an action is brought for the infringement of a patent, the court 
 will grant an inspection of machinery, and the application for such inspec- 
 tion may be made before declaration is delivered, but such inspection will 
 not be granted as of course; the party applying must, at least, show that 
 such inspection is material, and really wanted for the purposes of the cause. 
 Amies V. Kelsey, 0. S. i. 309. 
 
 51. Manny's reaping-machine does not infringe either of McCormick's 
 patents. The divider and reel-bearer used in Manny's machine being 
 different in form and principle do not infringe McCormick's patent of 1845. 
 McCormick v. Manny et al., 0. S. iv. 277. 
 
 VII. How Vacated. 
 
 52. Where a French vessel was rigged in France, with gaffs which had 
 been patented in the United States. Meld, that as the gaffs were placed on 
 the vessel when she was built as part of her original equipment, in a foreign 
 country, by persons not within the jurisdiction of our patent laws, they were 
 not within their application, but exempted. Brown v. Duchesne, 0. S. iv. 152. 
 
 53. The patent laws were not intended to apply to and govern a vessel of 
 a foreign friendly nation, resorting to our ports by our consent, for purposes 
 of lawful commerce. Id. 
 
 54. The plaintiff's first patent for a reaping-machine being dated in 1834 
 has expired, and whatever invention it contained now belongs to the public. 
 Id. 
 
 55. Improvements were made by McCormick, for which in 1845 he ob- 
 tained a patent, and in 1847 a patent for a further improvement, which last 
 patent was surrendered and reissued in 1853. McCormick v. Manny et al., 0. 
 S. iv. 277. 
 
 III. CONSTEUOTION OP ACTS OV CoNGBESS. 
 
 56. A special Act of Congress, in favor of a patentee, extending the time 
 beyond that originally limited, is engrafted on the general law, unless the 
 language of the act should require a different construction. Bloomer v. 
 McQuewan, 0. S. i..471. 
 
750 PATENT— PAYMENT. 
 
 57. Is not an odious monopoly, and is to receive a liberal construction. 
 Construction of "claim." TurriU r. R. R. Co., 'S. S. iy. 116. 
 
 58. Where reaping-machines prior to the plaintiff's invention had a grain- 
 divider or reel-post similar to the plaintiff's, the defendant may use the 
 same without infringing the plaintiff's patent. McCormick Y.Manny et at, 
 0. S. iv. 277. 
 
 PATENT MEDICINE. 
 
 1. Inventor of unpatented medicine no exclusive right to sell, but has a 
 right to exclusive use of his trade-mark. Davis v. Kendall, 0. S. ii. 681. 
 
 2. Plaintiff having applied the name "Pain Killer" — the application by 
 another of the same name was an infringement of his trade-mark. Id. 
 
 PAUPER. . ^ ^ 
 
 One who, being in need of immediate relief and support, has received the 
 eairie from the town of his lawful settlement, is not, in the absence of fraud, 
 liable to an action by the town therefor, although he was possessed of prop- 
 erty at the time. Inhabitants of Stow v. Sayer, N. S. i. 568. 
 
 PAWNEE. 
 
 Though a bonSr fide pawnee, plaintiffs may recover in trover. Kingsford 
 and Another v. Merry, 0. S. v. 691. 
 
 PAYMENT. 
 
 I, Payment in General. 
 
 1. Where a mercantile firm having executed a promissory note, and after 
 the maturity thereof one of said firm, at the request of the payees, who de- 
 manded payment or security, gave to said payees another note signed by 
 himself and a third person, payable at a subsequent time, secured by a mort- 
 gage on real estate to the full amount of the original claim; such original in- 
 debtedness is not thereby extinguished, unless by the express agreement of 
 the parties at the time, or that such transaction was understood by them to 
 have been in full satisfaction of the antecedent liability. Harrison v. Pope, 
 0. S. iv. 813 ; and see Bill v. Marcy, N. S. xi. 269. 
 
 2. The transfer of a sum of money from one party to another, in order to 
 be a payment of a debt, must be so intended by both parties. Atlantic Bank 
 v. Mechanic^ Bank, 0. S. ix. 241. 
 
 S. Where the mortgagee was indebted to the mortgagor on account, and it 
 was agreed to apply it in payment by both parties, it will be considered as a 
 payment in money. Putnam v. Osgood, N. S. xi. 662. 
 
 4. The purchase of merchandise by one partner, being within the scope 
 of the business of the firm, the payment to him was in fulfilment of the con- 
 tract. Kenney v. Altvater, N. S. xiv. 758. 
 
 5. A promissory note or accepted bill, however, is prim& facie evidence of 
 payment of debt. Strang v. Hirst, N. S. xiii. 126. 
 
 6. The term "secures the payment of the purchase-money," in an agree- 
 ment for the sale of real estate, does not signify payment in money, but im- 
 plies a term of credit. Foot v. Webh, N. S. x. 470. 
 
 7. The payment after maturity of a note secured by mortgage, by the 
 owner of the mortgaged premises, extinguishes the note. Appledom v. 
 Streeter, N. S. x. 403. 
 
 8. Surplus of interest, after partial payments thereof, cannot be taken to 
 augment principal. Townsend^y. Riley, N. S. vi. 251. 
 
 9. Taking a note with or without security from one of several joint debtors 
 for a preexisting debt, is a payment when so ngreed. Maxwell v. Day, N. S. 
 xiv. 59. 
 
 10. What payment will take a case out of limitation. Miller v. Takott, N. 
 S. vi. 188. 
 
 11. The bonds of a corporation in Missouri belonging to a non-resident 
 intestate, when held by an administrator in the state, are subject to taxation. 
 State, 3[c., Zee's Adm'xy. St. Louis Co., N. S. x. 606. 
 
 12. To bring a payment in Confederate currency within the rule as to 
 executed contracts, it is not necessary that the payment be of the entire sum 
 due, nor that it be endorsed as a credit on a note. Cross v. Sells, N. S. x. 195. 
 
 13. A long time having elapsed from the maturity of a sealed note, oircum- 
 Btances may be submitted to the jury from which payment may be presumed. 
 Brubalcer's Adm'r v. Taylor, N. S. xiv, 624. 
 
PAYMENT. 751 
 
 II. Plea op Patment. 
 
 14. Where a payment is made by the notes of a third person who had be- 
 come insolvent, the creditor may return them if the fact of insolvency wna 
 unknown at the time. Roberts v. Fisher, N. S. xiii. 261. 
 
 15. Such is the law in the case of bank-bills, and the same should apply to 
 notes. Id. 
 
 16. To an officer presenting a writ is made under legal compulsion, and is 
 not deemed voluntary. McKee v. Campbell, N. S. xiii. 399. 
 
 17. Payment in Cnited States treasury notes is a good tender. Appel v. 
 Woltman, N. S. vi. 248. 
 
 18. A payee taking payment in Confederate notes, is not sufficient duress 
 to avoid the payment. EoUingay, Cate, N. S. x, 198. 
 
 19. Payment of duties to a Confederate collector of customs during the 
 war, was not in eii'ect a payment to the United States, and is no defence to 
 an action on the customs bond. United States -t-Lowe, N. S. x. 455. 
 
 20. Payment of money into court, where the declaration is on a special 
 contract, supersedes the necessity of proving it. Elliott y. Lycoming Ins. Co., 
 N. S, X. 745. 
 
 21. To constitute a payment within the meaning of .the statute, there must 
 be an actual transfer or delivery of the thing or money agreed to be given as 
 payment. Walrath y. Ingles, N. S. xii. 600. 
 
 22. A payment to one partner in merchandise, though after dissolution of 
 the firm, is good if the party did not know of the dissolution. Kenney v. 
 AUvater, N. S. xiv. 758. 
 
 23. A note given for a precedent debt is primS, facie security only, or an 
 extension of credit. Wilbur y.Jernegan, N. S. xiv. 392. 
 
 24. Payment since bringing suit, to be pleaded in bar. Dana v. Sessions, N. 
 S. vi. 383. 
 
 25. When an instrument is lodged with a bank for collection, the bank be- 
 comes the agent of the payee or obligee to receive payment. Ward v. Smith, 
 N. S. viii. 354. 
 
 26. The giving of a note by a new firm, in exchange for a note of the old 
 firm, will not be deemed a payment, where the payee is ignorant of the 
 change of firm. Hills v. ilarcy, N. S. xi. 269. 
 
 27. If the payee makes an absolute sale of the note without the assent of 
 the old firm, and thus treats it as his own, he is deemed to have taken it as 
 payment. Id. 
 
 28. A party declining to accept payment, except in a way to which he is 
 not entitled, cannot insist that the action is prematurely brought Macky v. 
 Dillinger, N. S. xiii. 389. 
 
 29. A voluntary payment cannot be recovered back. Gilson y. Bingham, N. 
 S. xi. 73. 
 
 30. A payment of an illegal demand, with full knowledge of the facts, 
 though made under protest, cannot be recovered back. Commissioners y. 
 Walker, N. S. xi. 835. 
 
 31. When payment made upon an existing debt cannot be recovered back. 
 Branson v. Rugg, N. S. vi. 572. 
 
 82. One attempting to defraud another by payment cannot ask repayment 
 from him attempted to be defrauded. Bleakley's Appeal, N. S. x. 797. 
 
 III. Payment of Debts. 
 
 38. There is an absolute presumption of payment of an instrument which can 
 be extinguished by an act to pais, after the lapse of twenty years. Lyon v. 
 Adde, N. S. xii. 261. 
 
 84. This is a presumption of law and can only be rebutted by an unequiv- 
 ocal admission. Id. 
 
 35. A presumption of fact may be drawn by the jury from the circum- 
 stances in less than twenty years. Id, 
 
 86. Where the obligation can only be extinguished by deed the rule is dif- 
 ferent. Id. 
 
 37. Where the relation of landlord and tenant exists any release of the 
 rent must be by deed — no presumption of payment arises from lapse of 
 time. Id. 
 
 38. A check or promissory note, either of the debtor or a third person, 
 
752 PAYMENT. 
 
 received for a debt, is not payment if not itself paid, except in cases where 
 it is positiyely agreed to be received as payment. Freeholders of Middlesex v. 
 Thomas, N. S. ix. 320. 
 
 39. Accepting a clieck or draft implies an undertaking of due diligence in 
 presenting it for payment. Freeholders of Middlesex v. Thomas, N. S. ix. 320. 
 
 40. A payment by one of several joint debtors will not avoid the bar as to 
 the others. Bush v. Slowell, N. S. xii. 733. 
 
 41. Money deposited in a bank for the benefit of a creditor, without his 
 authority, is not a payment of a debt. Freeholders v. Thomas, N. S. ix. 320. 
 
 42. What is a valid tender of payment of money. Berthold v. Eeyburn, N. 
 S. vi. 64. 
 
 43. Payment by the principal of note, with the indorser's money, is a pay- 
 ment by the indorser. Natl State Bank v. Davis, N. S. xiv. 62. 
 
 44. When a debtor delivers money to be transmitted to his creditor, in ac- 
 cordance with authority given him so to do by his creditor, and the money 
 is lost upon the way, it is the loss of the creditor. , Currier v. Continental Life 
 Ins. Co., N. S. xiv. 169. 
 
 45. The plaintiff was authorized to send money to the defendants by ex- 
 press, and there were three express-carriers between the residence of the 
 plaintiff and the place of business of the defendants in this state ; the plain- 
 tiff sent the money for the last premium due upon his life-insurance policy 
 by one of these expressmen, who embezzled the money and ran away. Held, 
 that this was a sufficient payment of this premium to the defendants. Id. 
 
 IV. Application op Payments. 
 
 46. Must be actual appropriation to debt to become payment. Branson v. 
 Rugg, N. S. vi. 572. 
 
 47. The doctrine that bank bills are a good tender unless objected to at the 
 time, only applies to current bills which are redeemed at the counter of the 
 bank, and pass at par value in business transactions in the place where 
 offered. Ward v. Smith, N. S. viii. 354. 
 
 48. Payment of a check in the bills of a suspended bank, not known to the 
 parties to be suspended, is not a satisfaction. Id. 
 
 49. Payments — appropriation of — discussion upon. 0. S. iii. 705. 
 
 50. Where a debtor has proved that at the time of making a payment, he 
 directed it to be credited on one account, the books of the creditor are inad- 
 missible to show that it was credited to another account. Fennypacker v. 
 Umberger, 0. S. ii. 447. 
 
 51. Appropriation of payments made by mutual assent cannot b^ revoked 
 without such assent. Plummer v. Erskine, N. S. x. 541. 
 
 52. Where a bank pays a debt of one of its depositors, and takes his note 
 under an agreement that the balance in bank shall be applied in repayment, 
 it is an appropriation, and the balances may be deducted in a suit by a re- 
 ceiver of the bank, on the note. Chase v. Petroleum Bdnk, N. S. x. 794. 
 
 53. Where there are various items of debt on one side, and various items 
 of credit on the other, occurring at different times, and no special application 
 of payment is made by either party, the successive credits are to be ap- 
 plied to the items of debt antecedently due, in the order of time in which 
 they stand in the account, and this rule was applied to the case of a public 
 officer, who was in default for two successive years, and having different 
 sureties in each' year. McKee's Executors v. The Commonwealth, 0. S. ii. 186. 
 
 54. When deposit of check in bank on which it was drawn, no payment 
 thereof. Peterson v. Bank, N. S. vi. 631. 
 
 55. Application of payments when interest is stipulated for annually. 
 Tovmaend v. Riley, N. S. vi. 251. 
 
 56. A debtor has the right in the first instance to make the appropriation 
 of payment. Neidig. Adm'r of Neidig^ v. Whiteford, N. S. viii. 695. 
 
 57. Defendant no right to appropriate plaintiff's work as a payment upon 
 a note held against him. Carr v. McDonald, N. S. vi. 565. 
 
 58. If a note is given and received as absolute payment the debt is paid. 
 Wilbur V. Jemegan, N. S. xiv. 392. 
 
 v. Acceptance of Payment. 
 
 59. Payment of a promissory note by the maker before maturity does not 
 extinguish it as against a bond fide holder without notice, Runyan v Reed 
 0. S. vi. 805. ' 
 
PECUNIARY VALUE OF LIFE— PERJURY. 753 
 
 PECUNIARY VALUE OF LIFE. 
 
 Suggestions as to the pecuniary Talue of life. Coakley v. N. Pmna. R. R., 
 0. S. yi. 355. 
 
 PENAL CODE. 
 
 1. Of Pennsylvania, comments upon, 0. S. viii. 577. 
 
 2. Of Iowa, comments upon, 0. S. viii. 317. 
 
 PENALTIES. 
 
 Against passenger vessels, see Passenqek. 
 
 PENALTY. 
 
 1. Penalty not incurred by accidental omission to affix a stamp. Hitchcock 
 V. Sawyer, N. S. vi. 775. 
 
 2. When penalty under Act of June SOth, 1864, for failure to affix a stamp 
 is incurred and instrument invalidated. Beebe v. Sutton, N. S. vi. 574. 
 
 3. Penalty annexed to an act by statute implies its prohibition thereby. 
 Carpenter v. McClure, N. S. vi. 440. 
 
 4. When first statute imposing a penalty is and is not repealed by enact- 
 ment of a second varying the punishment. Dolan v. Thomas, N. S. vi. 506. 
 
 5. The Penna. Act of 18-50 prohibiting the circulation of small notes under 
 penalties — indictment for fraudulently inducing banli to violate the act. Hazen 
 V. Commonwealth, 0. S. ii. 654. 
 
 6. Covenant, damages for breach of. Uncertainty of extent of injury a 
 criterion in distinguishing between penalty and liquidated damages. Powell 
 T. Burroughs, N. S. vii. 315. 
 
 7. Municipal corporation cannot enforce its by-laws by penalties unless 
 authorized by statute. City v. Hughes, N. S. vi. 319. 
 
 8. Power to impose penalties for obstructions to and encroachments upon 
 streets. Id. 
 
 PENNSYLVANIA. 
 
 1. Construction of Act of 7th April, 1849. Plank-Koad Law in Beardsley 
 v. Honesdale Plank-Road Co., 0. S. ii. 660. 
 
 2. Act of 1850. Small Note Law in Hazen v. Com., 0. S. ii. 654. 
 
 3. The juridical investigation and determination of criminal ofiFenoes com- 
 mitted on the river Delaware, by the agreement between the states of Penna. 
 and N. Jersey, made in 1783, are specially provided for. Commonwealth v. 
 Andrew B. Frazee, 0. S. v. 167. 
 
 PENSION AGENT. 
 
 Under the Pension Act, &c., it is not unconstitutional for a pension agent 
 to receive a greater compensation than ten dollars for his services in making 
 the necessary papers to establish a claim for pension. U. States v. Fairchilds, 
 N. S. vii. 306. 
 
 PENT ROAD. 
 
 A pent road is a highway, though not an open one. Walcot v. Whitcomb, N. 
 S. vii. 574. 
 
 PERILS AT SEA. 
 
 In an action on a policy of insurance it appeared that the goods insured, 
 contained in 36 bales and cases, had arrived at their port of destination, and 
 had been subsequently destroyed by fire in the warehouse of the consignee, 
 before inspection, with the exception of two cases. Held, that there was no 
 evidence to go to the jury of a loss by the perils of the sea, at least as to 
 thirty-four packages. Levy v. The Insurance Co., 0. S. ii. 297. 
 
 PERIODICALS. 
 
 Copyright of articles written for, see Authok. 
 
 PERJURY. 
 
 1. If, on the trial of a charge of assault and battery, which has in fact 
 been committed, a witness falsely testifies to such facts as aggravate the bat- 
 tery, such false testimony is material and is perjury. Stephens v. The State, 
 0. S. i. 381. 
 
 2. An affidavit to hold to bail may be sworn before the issuing of the writ 
 in the action ; and, therefore, an indictment for perjury, committed in such 
 
 48 
 
754 PERJUEY— PEESONAL PEOPEETY. 
 
 affidavit, need not state that any action was pending. King v. Reginam, 0. S. 
 1. 374. 
 
 3. Not necessary to produce the Judge's notes, if proof of the perjury can 
 be established by witnesses who were present at the trial. Reg. t. Morgan, 
 0. S. ii. 118. 
 
 4. And it is no objection to a witness that he acted as advocate or attorney 
 against the prisoner at the trial. Id. 
 
 5. Comparison of handwriting on trial under indictment for. Reg. v. Tay- 
 lor, 0. S. ii. 117. 
 
 6. The false oath must be material to issue, and an oath by one, who had 
 had an illegitimate child, that the uncle of the putative father had promised 
 to raise her wages and let her lie-in at his house, if she would not swear the 
 child to his nephew, was not perjury, because immaterial. Reg. v. Owen, 0. 
 S. ii. 117. 
 
 7. Indictment. — It is not necessary, in an indictment for perjury, commit- 
 ted before an inferior court, to set out all the facts which show the authority 
 of such court of limited jurisdiction, and it will be sufBoient to aver that "the 
 case came on to be tried in due form of law, before the judge of the inferior 
 court," he having then and there sufficient and competent authority to ad- 
 minister the said oath to the said E. L. (the prisoner). Reg. v. Lawlor, 0. S. 
 ii. 574. 
 
 PERSONAL IDENTITY. 
 
 What is sufficient proof of. Kelly v. Valney, 0. S. ii. 499. 
 
 PERSONAL PROPERTY. See Sale. 
 
 I. Sale of— implied warranty, see Port v. The U. S., 0. S. iv. 389. 
 
 2-. Devise of — governed by lex loci actus. Hunt v. Mootrie, 0. S. iv. 896. 
 
 8. Judicial interpretation of, see Murdoch v. Brown Brothers, 0. S. vi. 690. 
 
 4. Follows law of the domicil of the owner. Mowry v. Crocker, 0. S. vi. 737. 
 
 5. Is generally regarded as having no situs; its title, mode of transfer, 
 and all incidents connected with its transmission, are regulated by the law 
 of the owner's domicil. Hanford v. Paine, 0. S. ix. 533. 
 
 6. Title and possession of personal property is all that is required to en- 
 able the holder to claim the property or its value. Orr v. The Mayor, &c., of 
 New York, N. S. xii. 469. 
 
 7. Right of stoppage in transitu, see Stoppage in Transitu. 
 
 8. Personal property, see Chattel in coub.se op Manupacture. 
 
 9. Legacy of, for life, see Oroves v. Wright, 0. S, v. 55. 
 
 10. Power of legislature to declare what shall be held to be personalty., 
 Maus V. Logansport, S^c, Railroad Co., N. S. ii. 118. 
 
 II. Chattel interests in land should be sold as personal property. Buhl v. 
 Kenyon, N. S. ii. 570. 
 
 12. The legislature of a state has. the right, in the absence of any constitu- 
 tional provision to the contrary, to prescribe any formalities in the convey- 
 ance of personal property which it may deem expedient, and to make such 
 provisions universal in their applications to all who hold property in the 
 state, as well those residing without as within the state's territory. Hanford 
 V. Paine ^ Trustee, 0. S. ix. 533. 
 
 13. A voluntary assignment for the benefit of creditors, if made in accord- 
 ance with the law of the assignor's domicil, is effective to pass the personal 
 property of such assignor, wherever situated, unless restrained by some local 
 law. Hartford v. Paine S; Trustee, 0. S. ix. 553. 
 
 14. To render a transfer of personal property valid against creditors, it 
 was formerly held that there must be an immediate, open, and exclusive pos- 
 session on the part of the transferee; but according to the more recent 
 authorities the character of the sale may be investigated as a matter of fact, 
 and its honesty and fairness determined by a jury. Leech v. Shantz. 0. S. v. 
 620. 
 
 15. The plaintifi's. the owners of a large quantity of acid in barrels, em- 
 ployed certain brokers to sell it ; the jokers contracted with B. for the 
 purchase of part, and gave him an order on the plaintiffs that they should 
 deliver to him or his order a certain number of tons of acid. B. sold his 
 interest in this contract to E., who sold it to L. A. bought the same of L., 
 falsely representing himself as agent for V., and thereby, on pretence of 
 
PEESONAL PEOPEETY— PHYSICIANS. 755 
 
 inspecting the acid, obtained from L. the broker's orders on the plaintiffs for 
 the quantity. These orders had been endorsed over and passed from one 
 purchaser to another, and when delivered by L. to A. were endorsed by L. 
 specially deliverable to himself. A. presented the broker's orders to the 
 plaintiffs, and stating that he had purchased the acid of L. on his own 
 account, though nominally for V., induced the plaintiffs to give him a trans- 
 fer or delivery-order on the wharfinger in whose warehouse the acid was 
 lying, authorizing the transfer into A.'s name of certain specific casks of 
 acid amounting to the quantity in the broker's orders mentioned. The wharf- 
 inger thereupon transferred the specified casks of acid into A.'s name. A. im- 
 mediately borrowed money of the defendant, and pledged the casks of acid 
 with him as a security for the rep9,yment, handing over to the defendant the 
 warrant which he had made out, by the means of which the defendant ob- 
 tained possession of the acid. Held, that as A. obtained the delivery-order 
 from the plaintiffs by the false and fraudulent representation that he had 
 purchased acid by a sub-sale from a purchaser from the plaintiffs, there was 
 no privity of contract between the plaintiffs and A., consequently that the 
 latter could not convey a good title in the cask.s of acid to the defendant, 
 though a ionS^de pawnee for value, but that the plaintiffs might recover the 
 acid back from him in trover. Kingafordy. Merry, 0. S. v. 691. 
 
 16. The fragments of a building blown down by a tempest are not thereby 
 converted into personalty, but pass to the purchaser of the realty at sheriff's 
 sale. Rogers v. Gillinger, 0. S. vi. 430. 
 
 PERSONATION OF JUROR. 
 
 Where a person not returned on the venire answers for a juror who was 
 returned, and goes into the jury-box and hears a capital case, and renders 
 a verdict, assuming to be the juror actually summoned, a new trial will be 
 granted. Commonwealth v. Spring, 0. S. i. 424. 
 
 PERSON OF PRISONER. 
 
 Money found on — as to order to return to prisoner. Reg. v. Pierce, 0. S. i. 
 373. 
 
 PHILADELPHIA. 
 
 The city of Philadelphia possesses the power to dig up the streets and 
 highways for the purpose of securing drainage and sewerage essential and 
 convenient to the public health, by express legislative enactment as to 
 Front street, both by the legislation in regard to the districts of Kensington 
 and Northern Liberties, and by the Consolidation Act. The North Penna. R. 
 R. Co. V. Stone, 0. S. viii. 112. 
 
 PHOTOGRAPHY. 
 
 1. The legal relations of photography — subject discussed. N. S. viii. 1. 
 
 2. Photographing statuette, held infringement of copyright. Marchi v. 
 Samson, 0. S. iii. 570. 
 
 3. Courts will judicially notice the art of photography and its results. 
 Lake V. County of Calhoun, N. S. xiv. 30.5. 
 
 4. A photograph is admissible in evidence on a question of identity. Id. 
 
 5. A photograph testified to be like the body is properly submitted to the 
 jury. Udderzook v. Commonwealth, N. S. xiv. 583, 
 
 PHYSICIANS. 
 
 1. The law does not imply, on the part of the physician, an undertaking 
 to use the highest, but only reasonable, professional skill. Braunberger v. 
 Cleis, N. S. iv. 587. 
 
 2. What is reasonable care and skill must be determined in each oase^from 
 the circumstances. Id. 
 
 3. The words " unlawful violence or negligence," in the statute giving an 
 action to surviving relatives for an injury causing death, include malprac- 
 tice as a physician. Id. 
 
 4. But the malpractice must be such as caused the death. Mere malprac- 
 tice, however gross, if not the proximate cause of the death, will not support 
 this action. Id. 
 
 5. The measure of damages is the pecuniary loss of the plaintiff. Id. 
 
 6. Membership of Medical Society — non-conformance with rules before 
 membership. People v. Med. Soc, N. S. iv. 575. 
 
756 PHYSICIANS— PILOTAGE. 
 
 7. Physicians and surgeons who offer themaelves to the public as prac- 
 titioners, impliedly promise thereby, that they possess the requisite knowl- 
 edge and skill to enable them to treat such cases as they undertake with 
 reasonable success. Patten v. Wiggin, N. S. ii. 401. 
 
 8. This rule does not require the possession of the highest, or even the 
 average skill, knowledge, or experience, but only such as will enable them 
 to treat the case understandingly and safely. Id. 
 
 9. The law also implies that in the treatment of all oases which they under- 
 take, they will exercise reasonable and ordinary care and diligence. Id. 
 
 10. They are also bound always to use their best skill and judgment in 
 determining the nature of the malady and the best mode of treatment, and in 
 all respects to do their best to secure a perfect restoration of their patients 
 to health and soundness. Id. 
 
 11. But physicians and surgeons do not impliedly warrant the recovery of 
 their patients, and are not liable on account of any failure in that respect, 
 unless through some default of their own duty, as already defined. Id. 
 
 12. If the settled practice and law of the profession allows of but one 
 course of treatment in the case, then any departure from such course might 
 properly be regarded as the result of want of knowledge, skill, experience, 
 or attention. Id. 
 
 13. If there are different schools of practice, all that any physician or sur- 
 geon undertakes is, that he understands, and will faithfully treat the case 
 according to, the recognized law and rules oi his particular school. Id. 
 
 14. Distinction between physicians and surgeons. Note to Fatten v. Wiggin, 
 N. S. ii. 405. 
 
 15. Right to sue for compensation for services — liability for malpractice — 
 knowledge and skill required of them. Id. 
 
 16. When statements of patient to his physician are evidence for him in 
 an action for a personal injury. Barber v. Merriam, N. S. vi. 120. 
 
 17. For what a physician's book may be received. Clarke y. Smith's Exec' r, 
 N. S. vi. 120. 
 
 18. Medical witness cannot give opinion, where he has no means of ascer- 
 taining facts, upon which he is asked. Millard v. Brown, N. S. vi. 378. 
 
 19. There is an implied obligation on a person professing to practice as a 
 surgeon, that he should possess the ordinary skill of the profession. Wilmot 
 V. Howard, N. S. vi. 774. 
 
 20. Negligence by a surgeon for the improper treatment of a patient, 
 affects only the amount of damages. Id. 
 
 21. Action arising from want of care or skill of a physician, does not sur- 
 vive against his executor. Vittum v. Oilman, N. S. ix. 516. 
 
 22. A physician examined as an expert may testify as to the probable 
 eifects of injuries upon the future health. Montgomery v. Tovm of Scott, N. S. 
 xiii. 777. 
 
 28. A superintendent cannot employ a physician to attend an employee 
 who has been injured by railroad company's locomotive, and bind the com- 
 pany. Marquette, H. ^ O. R. R. Co. v. Taft, N. S. xiii. 527. 
 
 24. A county is not liable for medical services rendered to prisoners in the 
 county jail. Roberta v. County Commissioners, N. S. xii. 121. 
 
 25. The prospective effect of a plaintiff's injuries, value .of time in being 
 cured, &c., may be shown by the opinion of a surgeon. K. F. R. W. Co. v. 
 Pointer, N. S. xii. 63. 
 
 36. A patient who neglects to obey the reasonable instructions of his phy- 
 sician, and thereby contributes to an injury, cannot recover therefor. Geisel- 
 man v. Scott, N. S. xiv. 685. 
 
 PILOTAGE. 
 
 1. An Act of Assembly provides that licensed vessels failing to take a pilot 
 shall pay half pilotage, one not licensed full pilotage — " and all half pilotage, 
 forfeitures and penalties in nature thereof accruing under the act shall be 
 recovered for the society for relief of pilots." Held, that a forfeiture of 
 full pilotage was for the use of the society. Collins -t.Soc.for Relief of Pilots, 
 N. S. xiii. 462. 
 
 2. The appropriation of the penalty is not part of the penal provision and 
 must be construed reasonably. Id. 
 
PILOTAGE— PLEADING AND PRACTICE. 757 
 
 S. The penalty not being a tax, its appropriation to a private corporation 
 is constitutional. Collins v. Soe.for Relief of Pilots, N. S. xiii. 462. 
 
 4. Imposing pilotage on vessels in foreign commerce, and half pilotage on 
 coasters, is not in conilict with sect. 10 of Art. 1 of Constitution of United 
 States. Id. 
 
 5. The steamship George Law coming into the port of New York, was 
 spoken by a licensed pilot, who ofifered his services as such legally licensed 
 pilot, which were refused. He then demanded a certain sum, claiming to be 
 entitled to it under the pilotage laws enacted by state statute, and libelled the 
 ship. Held, that he had no lien, and that the ship was not liable. Leitch v. 
 The Steamer George Law, 0. S. vi. 3t)8. 
 
 PIRACY. 
 
 Piracy by memorization. Subject discussed, N. S. xiv. 207. 
 PLAN. 
 
 1. Sale of lots on street by metes and bounds, according to a plan. War- 
 ren V. Blake, N. S. vii. 442. 
 
 2. Owner who lays out land in streets, and sells lots by a mop publicly ex- 
 hibited, dedicates the streets to the public. Pope v. Union, N. S. vii. 701. 
 
 3. Covenant not implied by designation of ground in a plan referred to in 
 a deed. Light v. Goddard, N. S. vi. 185. 
 
 4. Wine plants growing in ground, will pass by an absolute conveyance, 
 though reserved by parol. Wintermute v. Light, N. S. vi. 185. 
 
 PLANK-ROADS. 
 
 Liability of subscribers under the New York Act. Poughkeepsie, ^c. Plank- 
 road Co. V. Griffin, N. S. ii. 121. 
 
 PLATFORM. 
 
 1. As a general rule, railroad companies are bound to keep in a safe condi- 
 tion all portions of their platforms. McDonald et ux. v. The Chicago * N. W. 
 R. R. Co., N. S. ix. 10. 
 
 2. A railroad company is liable to a hackman for an injury received from 
 a defect in their platform, while he was carrying a passenger to the depot. 
 Tobin M.Portland R. R. Co., N. S. xi. 597. 
 
 3. The platform of a railroad company at a station, is in no sense a public 
 highway. There is no dedication to public use as such. Gillis m.R.R. Co., 
 N. S. viii. 729. 
 
 4. The platform of a railroad company at a station is for the accommoda- 
 tion of passengers. Id. 
 
 PLEADING AND PRACTICE. 
 I. In General. 
 
 1. Where the carrier refuses to receive any sum less than the whole 
 amount he thus claims for freight, and the consignee offers to pay the full 
 sum stipulated in the contract, no formal tender of the sum need be made. 
 Isham V. Greenham, 0. S. iii. 498. 
 
 2. Under the rules of the courts of equity in Pennsylvania, a defendant may 
 by answer protect himself against discovery. Perry v. Kinley, 0. S. iii. 183. 
 
 3. It is not allowable under a plea of nul tiel record to prove that an attor- 
 ney had no authority to appear for the defendant. Hill v. Mendenhall, N. S. 
 xiv. 524. 
 
 4. The plea of "nil debet," to a sealed instrument is bad on general de- 
 murrer. Brubaker's Adm'r v. Taylor, N. S. xiv. 524. 
 
 5. A long time having elapsed from the maturity of a sealed note, though 
 not sufficient to raise the presumption of payment in law, circumstances may 
 be submitted to the jury from which payment may be presumed. Id. 
 
 6. A technical variance in an immaterial matter only becomes of conse- 
 quence when the pleader attempts to declare on a contract in haec verba. 
 Preston v. Dunham, N. S. xiv. 709. 
 
 7. A note payable by the 1st of November, may be properly declared on as 
 payable on the 1st of November. Id. 
 
 8. For entering of cattle, if defendant does not allege defective fence, plain- 
 tiff not bound to prove it in good order. Sorenberger v. Houghton, N. S. vii. 703. 
 
 9. The capacity of an administrator to sue in assumpsit can only be raised 
 by a plea in abatement. Brown's Adm'r v. bourse, N. S. viii. 185. 
 
758 PLEADING AND PEACTICE. 
 
 10. An allegation of duty without stating the facts which raise the duly, is 
 insufficient. Hewison t. New Haven, N. S. vii. 777. 
 
 11. A complaint against a railroad to recover for negligence must dis- 
 tinctly allege that the injury occurred without the fault or negligence of the 
 plaintiff. Maxfield v. C. J. ^ L. R. R. Co., N. S. xiii. 261. 
 
 12. An objection to a petition for insufficiency is only good when there is 
 a total failure to allege some matter essential to the relief sought. Laithe t. 
 McDonald, N. S. x. 542. 
 
 13. Where the endorsee of an inland bill sues the drawer in the TJ. S. Circuit 
 Court, it is not enough to allege that the plaintiff is a citizen of one state and 
 the defendant of another. Morgan's Ex'r v. Oay, N. S. xiii. 655. 
 
 14; A defendant who expressly or impliedly assents by his pleadings to 
 the execution of a; contract set out in the bill, cannot retract such assent. 
 CroTik V. Trumlie, N. S. xiv. 583. 
 
 15. Pleading over admits that the release operated as averred. Davis v. 
 OberUuffer, 0. S. iv. 423. 
 
 16. In an action to recover money paid under duress, plaintiff must state 
 facts. Commercial Bank v. Rochester, N. S. iii. 639. 
 
 17. Waiver of objection to time of pleading a new plea. Child v. Eureka 
 Powder Works, N. S. v. 701. 
 
 18. Plaintiff need not prove all the allegations of the declaration, if less 
 will constitute cause of action. Somers v. Richards, N. S. xiii. 773. 
 
 19. Where two or more persons claim in different rights but for the same 
 cause of action they may join in a suit. Upington, S;c. v. Oviait, Treasurer, 
 N. S. xiv. 125. 
 
 20. One who has contracted with an administrator cannot when sued plead 
 ne ungues administrator. Conway v. Armington, N. S. xiv. 391. 
 
 21. A plea which sets forth the character and terms of an Act of the Legis- 
 lature, granting a franchise and material to the defendant's case, which act 
 is alluded to in the bill only as " a pretended legislative grant," performs 
 the proper office of a plea, by bringing forward matter not distinctly appear- 
 ing in the bill and which displaces the equity. Union Branch Jt. R. v. East 
 
 I Tenn. ^ Georgia R. R., 0. S. ii. 303. 
 II. Declaeation. 
 
 22. Each count must disclose a distinct right of action. Simmons v. Fair- 
 child, N. S. iv. 381. 
 
 23. Complaints should consist of allegations of fact. Id. 
 
 24. Declaration in action for damages for injury, describing highway and 
 its defects in general terms, good. Rowers v. Woodstock, N. S. v. 639. 
 
 25. Party charging fraud, must aver ifuUy and explicitly the facts consti- 
 tuting it. Butler v. Viele, N. S. v. 612. 
 
 26. The Traverse de Injuria, subject discussed, N. S. ii. 577. 
 
 27. Defective averment of compromise. Dolcher et ux. v. Fry, N. S. ii. 125. 
 
 28. Payment is an affirmative plea. Kendall v. Brownson, N. S. vii. 316. 
 
 29. Plea of covenants performed absque hoc is a negative plea, and gives 
 plaintiff the conclusion to the jury. Smith v. Frazier, N. S. vii. 125. 
 
 30. Where declaration is against defendants for loss of goods as carriers, 
 after verdict it will be presumed that this was made out. Aronson \.C. & R 
 R. R. Co., N. S. xii. 406. " 
 
 31. Plaintiff would be estopped in another action against them as ware- 
 housemen. Id. 
 
 32. A replication to a plea of insolvency will be bad on demurrer, which 
 does not specify the time, place, and circumstances under which acts charged 
 were committed. Bell v. Lamprey, N. S. xii. 534. 
 
 33. An averment that the defendant agreed to pay five per cent, on sale of 
 a mill, is not sustained by proof, that defendant agreed to pay if mill sold 
 for $5000. Menifee v. Biggins, N. S. xii. 261. 
 
 34. An allegation in a common count of an indebtedness of $500 for com- 
 missions on sale of laud and mill, is not sustained by evidence of exchange 
 of mill and land for other property. Id. 
 
 35. A cause of action for false imprisonment may be joined with a cause 
 of action for slander, when both arise out of the same transaction. Harris v. 
 Avery, N. S. viii. 437. 
 
 36. In declaring upon a special contract the entire consideration must be 
 set forth, and must be proved as alleged. Smith v. Webster, N. S. viii. 446. 
 
PLEADING AND PEAOTIOE. 759 
 
 37. Where the cause of action in the declaration is single and indivisible, 
 a plea of tender is an admission of the cause of action as laid. Dow v. Epping, 
 N. S. viii. 445. 
 
 38. In an action by assignee of a chose in action not negotiable against the 
 maker, it is unnecessary to aver in the declaration the consideration of the 
 transfer. Smiley y. Stevens, X. S. viii. 038. 
 
 39. An averment that the defendant is a foreign corporation, formed under 
 and created by the laws of the state of New York, is u. sufficient averment 
 that the defendant is a, citizen of New York. Kountze Bros. v. Express Co., 
 N. S. is. 200. 
 
 40. In a suit for damages, an allegation that the act was done carelessly 
 and negligently is sufficient. McPheeters v. Han. ^ St. Jos. R. R., N. S. ix. 325. 
 
 41. In a suit on a promissory note it is sufficient to allege that the defend- 
 ant executed the notes ; the question of authority is one of evidence and not 
 of pleading. Sliviii v. Rippey, N. S. x. 70. 
 
 4:2. Under the common count of goods, wares, and merchandise sold and 
 delivered, evidence of the sale of oxen is admissible. 'Weston v. McDowell, 
 N. S. X. 605. 
 
 43. The statement of the liability, without the facts on which it arose, is a 
 statement of a mere legal inference, which it is never necessary to allege in 
 pleading, and which, if alleged, is never traversable. Bailey y. Bussing, H. 
 S. i. 187. 
 
 44. A declaration in an action of assumpsit for a contribution alleged that 
 a joint judgment had been recovered against the plaintiff, the defendant and 
 another, w.hich the plaintiff had been compelled to pay, and that the defend- 
 ant was in duty bound and liable to pay to the plaintiff one-third of the 
 amount, and being so liable promised, &c., but contained no allegation as to 
 the cause of action upon which the judgment had been rendered. Held, that 
 the court could not infer, as a matter of law, that the cause of action was one 
 which imposed upon the defendant the duty to contribute, and therefore that 
 no sufficient consideration for the promise was alleged, and' that the defect 
 of the declaration was not cured by verdict. Id. 
 
 45. Subsequent attaching creditors and assignee of defendant may plead. 
 Child -y. Eureka PowderWorks, N. S. v. 701. 
 
 46. In a suit by a feme covert without joining her husband, the declaration 
 should set forth the circumstances giving her the right to sue alone. Dutton 
 et al. V. Bice et al., N. S. xiv. 126. 
 
 47. The burden of alleging the facts necessary to entitle a, feme covert to sue 
 alone should be on her. Id. 
 
 48. If declaration sets out matter, so that it may be construed as a distinct 
 injury, or as aggravation only, defendant may treat it as the latter, and plain- 
 tiff, if not so intending it, must reassign. Grout v. Knapp, N. S. vii. 702. 
 
 49. When plaintiff should be nonsuited. Miller v. Milligan, N. S. vi. 717. 
 
 50. The judgment of the civil tribunal established by the U. States military 
 commander in Tennessee during the late war may be pleaded in bar to an 
 action in the same cause in a state court after the war. Hefferman v. Porter, 
 N. S. ix. 41. 
 
 51. A plea of release is not void because it fails to allege that it was ob- 
 tained without fraud. McClane, Adrrir v. Shepherd's ExW, N. S. x. 280. 
 
 62. A plea of justification of imprisonment, under order of court, should 
 set forth all the facts necessary to give the court jurisdiction. Von Ketler v. 
 Johnson, N. S. xii. 323. 
 
 III. Pleas in Abatement. 
 
 53. Whether defendant is a corporation, upon matter dehors the record, 
 must be raised by plea in abatement. Express Co. v. Haggard. N. S. vi. 124. 
 
 54. Plea in abatement must give plaintiff a better writ. Id. 
 
 55. In debt against one, on a judgment against three, the nonjoinder may 
 be pleaded in abatement. Judge of Probate v. Webster, N. S. vi. 3l8. 
 
 56. When plea in abatement, to capacity of officer serving the writ, held 
 defective. Smith v. Chase, N. S. vi. 573. 
 
 57. An addition in the return of officer's capacity not conclusive. Id. 
 
 58. The nonjoinder of a party in actions ex delicto can only be taken ad- 
 vantage of by plea in abatement. Cooper v. Grand Trunk Railroad, N. S. i.. 
 204. 
 
760 PLEADING AND PRACTICE. 
 
 59. A petition stating sufficient facts to constitute a cause of action is suffi- 
 cient. MUpatrick v. Gebhart, N. S. x. 541. 
 
 60. A plea in abatement must be direct and positive. Severy t. Nye, N. S. 
 i. 667. 
 
 61. The pendency of an action of trespass against a deputy for wrongful 
 acts cannot be pleaded in abatement in an action against the sheriff for the 
 same cause. Id. 
 
 62. Nor is the pendency of such suit against the deputy a release of the 
 latter action. Id. 
 
 63. A complaint for damages for fraudulent representations in the sale of 
 real estate must contain an ayerment that vendee relied upon such represen- 
 tations. Goings -v. White, N. S. x. 671. 
 
 64. A suit brought by an insurance company in its name on a note made 
 to N. B., "agent of the company," is properly brought. Black y. Enterptise 
 Ins. Co., N. S. X. 746. 
 
 65. Where the allegation is that the place was a room, and the proof is a 
 cellar, it is no v;iriance. O'Keefe v. The State, N. S. xiv. 54. 
 
 66. An agreement under seal to submit to arbitration, and a guarantee by 
 a third person not under seal that one of the parties shall abide the award, 
 caunot be sued upon in the same action. Wallis v. Carpenter, N. S. vii. 119. 
 
 IV. Pleas in Bar and Subsequent Pleadings. 
 
 67. No system of, will justify or require an instruction contrary to law. 
 United States v. Dashiell, N. S. vi. 442. 
 
 68. Plea going to, but part of cause of action, no plea in bar. Id. 
 
 69. Counter claim requiring a reply. Thompson v. SicMes, N.S. vi. 124. 
 
 70. Joinder of causes of action for restitution of property of a judgment- 
 debtor. Palen v. Bushnell, N. S. vi. 124. 
 
 71. Payment since bringing suit to be pleaded in bar. Dana v. Session, N. 
 S. vi. 383. 
 
 72. Or admissible only in mitigation of damages. Id. 
 
 73. How inade concise, simple, and accurate. Drew v. Potter, N. S. vi. 571. 
 
 74. Precedent for count in malicious prosecution given in 2 Ch. PI. 611, 
 defective in substance. Id. 
 
 lb. What plea of a former adjudication must show. Railroad Co. v. Watson, 
 N. S. vi. 716. 
 
 76. The plea of lis pendens must show that the title, the same injury, and 
 the same subject-matter are in controversy in an action to recover land. 
 Larco v. Clements, N. S. viii. 699. 
 
 77. Whether the defence of concurrent negligence can be heard without 
 being specially pleaded, gusere. Lochhardt et al. v. Lichtenthaler, N. S. iv. 15. 
 
 78. Special plea denying conversion amounts to general issue. Turner v. 
 Waldo, N. S. vii. 576. 
 
 79. Tender is a good plea in bar, and if followed up protects the defendant. 
 Wheeler v. Woodward, N. S. x. 800. 
 
 80. In trespass g. c. /., when the declaration counts upon a single act of 
 trespass, which is justified, the plaintiff cannot traverse it, and new assign. 
 Spencer v. Bemis, N. S. xiii. 654. 
 
 81. Plaintiif may add count different from declaration if he does not change 
 cause of action. Knapp v. Hartung, N. S. xiii. 451. 
 
 82. Amendments of pleadings may be in three ways : 1st. By interlineation • 
 2. By writing on separate paper; 3. By re-writing the original pleading. 
 Mtzpatrick v. Gebhart, N. S. x. 541. 
 
 83. An answer of set-oif is not demurrable, because it does not answer the 
 entire complaint. Mullendore v. Scott, N. S. xiv. 60. 
 
 84. It is sufficient allegation of a defect in a highway to allege that an 
 injury resulted from a stump in the said highways. Oremer, Adm'r v The 
 Town of Portland, N. S. xiv. 324. 
 
 85. In an action on a policy of insurance, where there is no denial of the 
 execution of the policy, it need not be proved. Clay Fire Ins. Co. v. Huron 
 Salt Manufacturing Co., N. S. xiv. 460. 
 
 86. Justification must be specially pleaded under New York code. Brown 
 V. Chadrey, N. S. iii. 123. 
 
 87. Complaint on express agreement will be sustained by evidence of an 
 implied one, in New York. Smith v. Lippincott, N. S. vii. 570. 
 
PLEADING AND PRACTICE. 761 
 
 88. Judgment, in another state, during the pendency of the action here, 
 may be pleaded in bar. Child v. Eureka Powder Works, N. S. t. 701. 
 
 V. Demurkers. 
 
 89. Plea that testator had been adjudged insane, and that guardianship 
 existed over bim at time of making will, insufficient upon demurrer. Rob- 
 inson's Estate, N. S. vi. 720. 
 
 90. Plea of the statute of limitations, to a new count on a witnessed note, 
 that cause of action did not accrue within fourteen years next before " the 
 
 filing of the new declaration," is bad. Dana v. McClure, N. S. fi. 564. 
 
 91. Plea of the statute in indebitatus assumpsit. Id. 
 
 92. Cannot traverse character of party set out in pleading, unless denied 
 under oath — Rev. Code Miss., art. 237, p. 518. Saffordv. Barnes, N. S. vi. 506. 
 
 93. Eeplication withdrawn after being held insufficient on demurrer, and 
 new one filed. Waiver of writ of error on first. Clearwater v. Meredith, N. S. 
 iii. 695. 
 
 94. Judgment on demurrer. Id. 
 
 95. A judgment under the code must be based on the pleadings, and is not 
 to be given for the defendant for a cause of action he has not set up by way 
 of defence or counter claim. Wright v. Delafield et al., N. S. iii. 58. 
 
 96. Declaration stated that the registered owner of a British ship mortgaged 
 it, and on the 9th of April, 1855, the plaintifi' became the mortgagee ; that on 
 the 8th June, 1854, the captain, while on a voyage, drew a bill at Melbourne, 
 in Australia, on the owner in England, for necessary disbursements of the 
 ship, in favor of L. & Co. ; that L. & Co., without value, indorsed it to the 
 defendants, British subjects residing in England; that the bill was dishon- 
 ored; that the defendants, knowing the premises, and that the ship was about 
 to call on her voyage at the port of Havre de Grace, in France, and that by 
 the law of France the bon& fide holder for value of such a bill (if a French 
 subject), could take proceedings in the French courts and attach and sell the 
 ship, conspired with T., a French subject, that they should indorse the bill to 
 him without value, and that he should take proceedings in the French courts, 
 and falsely represent that he was bond fide holder of the bill for value ; and 
 thereupon T., upon the arrival of the ship in a French port, took proceedings 
 in the French courts, and therein obtained orders for the attachment and sale 
 of the ship ; and the plaintiff was deprived of his property in the ship. Held, 
 that this being a judgment in rem, though in a foreign court, an action could 
 not be maintained while it remained unreversed, as it was consistent with the 
 averments in the declaration that the plaintiff had notice of the proceedings 
 in France, and allowed judgment to go by default, or even that he appeared 
 in the French court, and the question whether T. was a holder of the bill for 
 value was decided against him. Castrigue v. Behrens and Others, N. S. i. 48. 
 
 97. Demurrer to a replication denying notice, admits want of notice. Lex- 
 ington V. Butler, N. S. xii. 125. 
 
 98. Where a plea of usury avers the payment of $150, and the evidence 
 shows but Sl25, it is such a variance as renders the evidence inadmissible. 
 Frank v. Morris, N. S. xii. 327. 
 
 99. At common law, as usury rendered the contract void, it could be proved 
 under the plea of non assumpsit, but under the statute it must be pleaded 
 specially. Id. 
 
 100. Where the error alleged is in arresting judgment, the Supreme Court 
 will not look to the testimony for aid in pronouncing judgment. Aronson v. 
 C. ^ P. Railroad Co., N. S. xii. 406. 
 
 101. If the declaration is sound, the plaintiff is generally entitled to judg- 
 ment. Id. , 
 
 102. The rule that on a demurrer judgment must be rendered against the 
 party making the first defect, applies to defects of substance and not of form. 
 Bell V. Lamprey, N. S. xii. 534. 
 
 103. The defect must be in the line of pleadings in which the demurrer is 
 interposed. Id. 
 
 104. Where a complaint seeks relief from a transaction, on the ground of 
 unsoundness of mind, when it was made, and there is no averment of restora- 
 tion to soundness, the objection will be held as waived, unless the want of 
 capacity is presented by demurrer or answer. Wade v. The State ex rel. Nix, 
 N. S. xii. 584. 
 
762 BLEADING AND PRACTICE. 
 
 105. A plea of former adjudication is good oa demurrer. State ex rel. Gombs 
 V. Hudson, N. S. xii. 597. 
 
 106. Plaintiff may show that ho jurisdiction of the person of the defend- 
 ant was acquired by proper service, iu the former action. Id. 
 
 107. A replication to be bad for duplicity must set up two or more answers 
 to the matter relied on as a defence. Hunt v. Haotn, N. S. xii. 598. 
 
 108. A declaration against a married woman on a note, alleging that it was 
 made by her and her husband jointly, who is since dead, is bad on demurrer, 
 it must show that she was liable, independent of her coverture. WeUeome v. 
 Riley, N. S. xii. 599. 
 
 109. A petition which groups together the principal facts constituting 670 
 separate causes of action, and alleges such facts in general terms, is bad. 
 Stewart v. Balderson, N. S. xii. 734. 
 
 110. Such a petition does not, nor does any count, state facts sufficiently 
 well pleaded, to constitute a cause of action. Id. 
 
 111. A motion asking to have such petition made definite should be sus- 
 tained. Id. 
 
 112. On demurrer to such petition, the facts are not to be taken as true, 
 unless they are well pleaded. Id. 
 
 113. An answer to a suit on a note, alleging that the plaintiff is a foreign 
 insurance company, but failing to show a non-complianoe with the require- 
 ments of the Act of December 21, 1865, of Indiana, is bad on demurrer. 
 Black V. Enterprise Ins. Co., N. S. a. 746. 
 
 114. An answer to a suit on a note, alleging that it was given to a third 
 person, for goods bought by the defendant, and was only made payable to the 
 plaintiff, that he might collect it as agent, and for no other purpose, is bad, 
 because it does not allege that plaintiff was not the owner. Waddle v. Har- 
 beck, N. S. x. 747. 
 
 115. A plea which professes to answer a whole count, but answers only a 
 part, is bad on general demurrer. Puett v. The State Bank, 0. S. i. 695. 
 
 116. Judgment on an indictment containing several counts will not be 
 arrested if there is one good count in the indictment. Glines v. Smith, N. S. 
 ix. 518. 
 
 117. In a civil suit where there are several counts on each of which dam- 
 ages are claimed, judgment must be arrested on a general verdict, if one count 
 is bad. Id. 
 
 118. Where a note was alleged to have been endorsed by Sturges & Com., 
 and the evidence showed it to be by Sturgas & Co., it was held, there was no 
 variance. Keith v. Sturges, N. S. ix. 775. 
 
 119. After a verdict for plaintiff, judgment will not be arrested because the 
 declaration alleges that the "Inhabitants of a town" were bound to keen a 
 highway in repair, instead of alleging that the toien was so bound. Flanders 
 V. Stewartson, N. S. viii. 61. 
 
 120. A reversal in a court of last resort, remanding a case, cannot be set up 
 as a bar to a judgment in an inferior court on the same case. Aurora City v. 
 West, N. S. viu. 254. 
 
 121. The rule that judgment will be given against the party who commits 
 the first fault in pleading does not apply to faults of mere form. Id. 
 
 122. When two or more plaintiffs unite in bringing a joint action, and the 
 facts stated do not show a joint cause of action in them, a demurrer will lie, 
 upon the ground that the complaint does not state facts sufficient to consti- 
 
 ' tute a cause of action. Mann and Wife v. Marsh, N. S. i. 379. 
 I 123. An estoppel may be applied to a plea of KAerum /cnemenium. Feveraham 
 
 V. Emerson, 0. S. iv. 127. 
 
 124. If a party does not take the first opportunity which the pleadings of 
 any case afford him, of replying an estoppel, and pleads it afterwards, he 
 leaves the estoppel at large, and leaves the jury to determine upon the evi- 
 dence without regard to strict law. Id. 
 
 125. A complaint for flowage containing no allegation of defendant's owner- 
 ship of the land is bad on demurrer. Jones v. Skinner, N. S. xiii. 126. 
 
 126. In Maine an unaccepted bill is no evidence of payment of the original 
 debt, hence a new count may be added to a declaration on the bill, declaring 
 on the debt, by way of amendment. Strang v. Hirst, N. S. xiii. 126. 
 
 127. A promissory note or accepted bill, however, is prima facie evidence 
 of payment of debt. Id. 
 
PLEADING AND PEACTIOE— PLEDGE. 763 
 
 _ 128. " Fraudulently " in a declaration implies a scienter, and is argumenta- 
 tive, but if not objected to is cured by verdict. Beebe v. Knapp et al., N. S. 
 xiii. 457. 
 
 129. Where an issue of fact not raised by the pleading was distinctly sub- 
 mitted to the jury without objection, the admission of evidence to sustain such 
 fact is not error, and the pleadings may be amended to conform to the fact 
 proved. McCord v. JlcSpedden, N. S. xiii. 705. 
 
 130. Where one count in a declaration is for so negligently conducting lo- 
 comotives and cars that plaintiff's timber was burned by sparks, and the sec- 
 ond count was for not maintaining fences between railroad and plaintiff's 
 land whereby plaintiff suft'ered, both counts being in tort, were properly 
 joined. P. W. ^ B. R. E. Co. v. Constable, N.»S. xiii. 784. 
 
 131. In equity, an amendment of the bill, when allowed after answer and 
 replication, does not open the pleadings unrestrictedly. The court looks 
 back through them in order to ascertain to what extent, if any, the amend- 
 ment may have introduced a new case or new matters ; and in general, con- 
 siders them as open to this extent, bnt no farther. Keene v. Wheatley ^ 
 Clarke, O. S. ix. 33. 
 
 132. Au amendment of the bill, after answer, does not sanction the introduc- 
 tion on the part of the defendant, by way of plea, of an allegation of a per- 
 sonal disability in the complainant as having existed at the commencement 
 of the suit. The answer itself would overrule such a plea. Id. 
 
 133. Evidence, practice in taking. By the act of Congress and the rules 
 of practice of the circuit courts of the United States, in equity, a party has a 
 right to have witnesses within the jurisdiction of the court examined in open 
 court, or he may have a commission issued with written interrogatories 
 annexed for the examination of such witnesses, unless the interrogatories be 
 varied by the opposite party, when the examination is had as a deposition, 
 but the commission may be dispensed with by consent. Branson v. La Orosse 
 ^ Milwaukie Railroad Company, 0. S. ix. 350. 
 
 134. In states where there is no law regulating the taking of depositions of 
 witnesses within the jurisdiction, the act of 1802 does not .apply ; and one 
 party cannot require the other party to attend the taking of the depositions 
 of such witnesses before a master unless in cases especially provided for in 
 the act of September, 1789. Id. 
 
 VI. Issue. 
 
 135. If words constitute two distinct slanders, defendant may justify one 
 and plead general issue as to the other. Nott v. Stoddard, N. S. v. 639.' 
 
 136. Defendant must justify language in the sense alleged — not the very 
 words. Id. 
 
 137. In trespass qiiare clausum fregit, "not guilty," puts the plaintiff's pos- 
 session in issue. McCausland v. Fleming, N. S. x. 63. 
 
 138. Plea tendering different issue. Rust v. Nottidge, 0. S. i. 308. 
 
 139. Objection to plaintiff's maintaining suit as surviving partner must be 
 taken in abatement. Strang v. Hirst, N. S. xiii. 126. 
 
 140. A plea puis darrein continuance, after a plea in bar, is a waiver of the 
 latter, l^me v. Huntoon, N. S. xiv. 399. 
 
 141. But such plea may be properly pleaded with the general issue. Id. 
 
 142. That two pleas pleaded together are repugnant to each other, is no 
 objection to either of them. Id. 
 
 PLEDGE. 
 
 1. A pledge of stock on collateral security, with power to sell at public or 
 private sale without notice, and to assign coupled with a blank power for 
 that purpose, who has actually transferred the stock into his own name, 
 stands as to third persons in the light of the owner, and is therefore liable to 
 an action by the purchaser. Ketchum v. Bank of Commerce of New York, 0. 
 S. iii. 145. 
 
 2. Duty of pledgee holding collateral security for an indefinite time. SUt 
 greaves v. Bank, N. S. 7. 249. 
 
 3. When commercial paper is pledged by the apparent owner before it 
 matures, as collateral security for advances, the pledgee in good faith is 
 entitled to hold it for the amount of such advances. Belmont Branch Bank v. 
 
 Eoge, N. S. vi. 227. t, u , • 
 
 4. The distinction between a pledge and a mortgage where B. had given 
 
764 PLEDGE— POSSESSION. 
 
 G. the defendant certain promissory notes and at the same time delivered to 
 him sundry certificates of Illinois state indebtedness, and made an agree- 
 ment that if the notes were unpaid at maturity, the defendants were author- 
 ized to dispose of and sell the same sixty days after the maturity of the notes 
 and apply the proceeds to the credit of B. Held, that this was a pledge and 
 not a mortgage. James M. Lewis t. John A. Graham and Others, 0. S. v. 368. 
 
 5. That on forfeiture for non-payment of the notes, the pledgees were re- 
 quired to demand payment and give notice of the intended sale, before sale 
 of the securities could be made by them, so as to deprive the pledgor of his 
 right to redeem. Id. 
 
 6. That demand and notice would apply only to such securities pledged as 
 were specially set forth in such demand and that a sale of any pledges without 
 notice would be Invalid. Id. 
 
 7. That a special partner may, under the law of New York, purchase 
 securities which are sold by his partners as pledges forfeited for non-pay- 
 ment of notes held by the firm. Id. 
 
 8. An offer to pay notes without any actual tender of the money is suffi- 
 cient, if such tender would be useless by reason of the defendants having 
 previously sold the securities. Id. 
 
 9. Title of pledgee as against the holder obtaining possession by fraudulent 
 representation. Kingtford v. Merry, 0. S. v. 568. 
 
 10. A pledgor, by the act of pledging, impliedly engages that he is the 
 owner of the property pledged; and where the ownership of any part of it 
 is not in him, he is liable to the pledgee in damages, if by reason of defective 
 title it is taken from him. Mairs v. Taylor, N. S. i. 759. 
 
 POINT SUBMITTED. 
 
 It is necessary that each point submitted to the court, if relevant and 
 material to the issue, be substantially answered in the relation in which it 
 was put. It is not quite enough that an answer may be deduced from obser- 
 vations in other connections and relations to other facts. Pennsylvania BaU- 
 Toad Co. Y.Zebe and Wife, 0. S. viii. 27. 
 
 POISONING. 
 
 Indictment for poisoning under general statutes of Massachusetts, ch. 160, 
 sect. 32. Commonwealth v. Galavan, N. S. v. 185. 
 
 POLICE. 
 
 1. The Act of April 12th, 1867, providing for the appointment by the gov- 
 ernor, of police officers for the protection of persons in the mining regions, is 
 constitutional. Northumberland County v. Zimmerman, N. S. xiv. 125. 
 
 2. A case in which the beneficiaries were the police, and the Board of 
 Police held the fund, and the policemen had no right to receive a present 
 without the consent of the board, the acceptance of the fund from the donor 
 warranted the presumption that the board consented to its payment. Feel v. 
 Board of Police, N. S. v. 98. 
 
 3. Policemen ought not to question prisoners. Reg. v. Stokes, 0. S. i. 435. 
 
 POLICY OP INSURANCE. 
 
 1. A marine policy is to be construed according to the general and known 
 course of trade with regard to vessels of a similar character. Mobile, ^c, 
 Ins. Go. V. McMillan, 0. S. iii. 671. 
 
 2. Where an insurance company of New York, executing policies which 
 were transmitted to agents in Baltimore, it was held, that the contract for 
 insurance was a New York, and not a Maryland contract. Wright v. Sun 
 Mutual Ins. Co. of New York, 0. S. vi. 485. 
 
 POOR-HOUSE. 
 
 Not taxable for school purposes in Pennsylvania. Directors of Poor v. 
 School Directors, N. S. ii. 448. 
 
 PORT WARDENS. 
 
 Port Wardens of Philadelphia, line of low water mark to be defined by. 
 Tatham v. The Wardens, 0. S. v. 378, and see Mandamus. 
 
 POSSESSION. 
 
 1. Possession to take a case out of statute of frauds must be exclusive. 
 Blakeslee v. Blakeslee, 0. S. ii. 188, and Greenlee v. Greenlee, 0. S. ii. 188. 
 
POSSESSION— POST-OFFICE. 765 
 
 2. What kind of sale of goods gives right of. Godts v. Rose, 0. S. iv. 574. 
 
 3. Notice of title to subsequent purchasers and creditors. Patlon v. The 
 Borough,' ^c, N. S. i. 628. 
 
 4. Of personal property as evidence of title, see Personal Peopeett. 
 
 5. Leading article on the interversion of. N. S. i. 65. 
 
 6. Possession of land by grantor, as notice of equities in him against his 
 own conveyance. Dawson v. Bank, N. S. vi. 638. 
 
 7. A person who consti-ucts cars for a railroad, may effect a lien while the 
 ■worlc is in his possession. Coe, Trustee v. Pennock ^ Cleveland R.R., 0. S. 
 vi. 27. 
 
 8. What possession of real property sufficient to put on inquiry. Hughes 
 V. United States, N. S. vi. 443. 
 
 9. Consequences of neglect to make inquiry of possession of real property. Id. 
 
 10. Eight of possession ordinarily passes thereby. Sail v. Simpson, N. S. 
 vi. 381. 
 
 11. When mortgagor's right of possession terminates. Id. 
 
 12. Where the owner of land has been dispossessed, his entry must be 
 intended as an act of possession. Burrows v. Oallup, N. S. vi. 84. 
 
 POSTMASTER. 
 
 Action against for loss of letter. Ford •^.Parker, 0. S. iv. 631. 
 
 POST-OFFICE. 
 
 1. Power of Postmaster-General to establish and discontinue post-offices. 
 Ware v. U. S., N. S. vi. 638. 
 
 2. When he may exercise the power. Id. 
 
 8. Legality of private letter-carriage. The Acts of Congress of 2d March, 
 1827, sect. 3, forbidding all persons, other than the Postmaster-General, or 
 his agents, from setting up any foot- or horse-post for the conveyance of let- 
 ters, &c., upon any post-road then or thereafter established; and of 3d 
 March, 1845, sect. 9, forbidding the establishment of any private express for 
 the conveyance of letters, &c., from a city, town or place, to another city, 
 town or place, between which the mail is regularly transported, prohibit the 
 business of private carriers on mail routes, but not that of private letter- 
 carriers within the limits of a post-town. United States M.Kochersperger, 0. 
 S. ix. 145. 
 
 4. In the Act of 3d March, 1851, sect. 10, authorizing the Postmaster- 
 General "to establish post-routes within the cities or towns" whose post- 
 masters are appointed by the President, the word post-routes is not synony- 
 mous with post-roads in the Act of 1827. Id. 
 
 5. The Postmaster-General having, conformably to the provisions of the 
 Act of 1851, and other statutes, established within the postal district of a 
 city whose postmaster was appointed by the President, a local post for the 
 collection and delivery of letters, &c., not carried by mail, issued an order 
 declaring that, under the authority conferred by the Act of 1851, the streets 
 of the city were established as post-roads. This order did not make them 
 post-roads within the meaning of the Act of 1827, or make the business of 
 private letter-carriSrs within the postal district of the city unlawful. Id. 
 
 6. If a passenger in a railroad car or steamboat, passing over a post-road, 
 carry letters, without the knowledge or consent of the proprietor of such car 
 or boat, or any of his servants, the owner does not incur the penalty pre- 
 scribed by the nineteenth section of the Act of Congress of the 3d of March, 
 1825. United States v. James W. Hall, 0. S. ix. 232. 
 
 7. If the owner of the car or steamboat be not liable under the nineteenth 
 section of the act, no penalty is incurred by the person who sends such let- 
 tera, under the twenty-fourth section. Id. 
 
 8. But if a person be openly engaged in the business of private letter- 
 carrying over the post-rOads of the United States, and a railroad company 
 be notified by public advertisement, and by the agent of the post-office 
 department, that the party and his agents are engaged in such business, they 
 will be liable to the penalty prescribed by the nineteenth section, for con- 
 veying such agents carrying letters. Id. 
 
 9. And the company being liable under this section, the person employing 
 such agents in the transportation of letters over a post-road becomes liable, 
 under the twenty-fourth section. Id. 
 
766 POWEE— POWEE OF ATTOENEY. 
 
 POWER. 
 
 I. Generally. 
 
 1. A power which includes a future interest is effectual to pass a BUDse-. 
 queutly acquired title. Wilson t. Stewart, 0. S. vi. 372. 
 
 2. A deed of trust from husband and wife, with power for trustee to sell 
 on request of wife, includes a power to mortgage at her request. Zane t. 
 Kennedy, N. S. xiii. 464. 
 
 3. Absolute power to sell includes power to mortgage. Id. 
 
 4. There being no bill to reform, the legislature could not give a court 
 power to establish it upon proof of the intent of the parties. Alt^-'a Appeal, 
 N. S. X. 242. 
 
 8. A judgment recovered against tenant for life, who has power to consent 
 to sale of premises, does not extinguish the power. Leggett v. Doremus, N. S. 
 xiv. 825. 
 
 6. Lien of judgment is subject to the power. Id. 
 
 7. The power to consent, is not extinguished by an absolute alienation of 
 the life estate. Id. 
 
 8. Grantee, under the power, takes from the party creating the power, 
 and not from the party executing. Id. 
 
 9. Donee of power cannot defeat any interest which he has granted by 
 virtue of his estate. Id. 
 
 10. The intention of the donee of a power is the criterion to determine its 
 execution. Bingham's Appeal, N. S. X. 413. 
 
 11. The subject of a power is the property of the donor not of the donee, in 
 whom it is only a trust. Id. 
 
 12. The law of the situs of the subject of the power controls its execution. Id. 
 
 II. Or Appointment. 
 
 13. As to general power to appoint under a deed, and revocation of the 
 power, see Pom/ret y.Perfing, 0. S. iii. 608, and Evans v. Saunders, 0. S. iii. -509. 
 
 14. To appoint by deed or will does not constitute two separate powers, but 
 is a single power, requiring it to be exercised by one or the other of those two 
 instruments. Id. 
 
 15. A power in a marriage settlement authorized two persons by deed "to 
 be by them duly executed under their respectiTe hands and seals, in the pres- 
 ence of, and to be attested by two or more credible witnesses," to appoint a sum 
 ■of money. The deed of appointment was signed by these two persons, their 
 seals were attached thereto, and the attestation was in this form : '' Signed, 
 sealed, and delivered in the presence of G. B., E. C, clerks to Mr. S., solici- 
 tor, Cheltenham." This was held a sufficient attestation, and the power duly 
 executed. Newton v. Rickets [House of Lords), N. S. i. oil. 
 
 III. Of Sale. 
 
 16. Power of sale and mortgage distinguished. See Strong v. Anstey, 0. S. i. 
 128. 
 
 17. Power of sale in a deed of trust, executed by sheriff. His authority 
 and effect of his deed. McKnight T. Wimer, N. S. vi. 253. 
 
 18. Where a testator ordered that his executor should not sell more of his 
 real estate within one year than would be sufEoient to pay his debts, and 
 should not sell the balance until five years after his death ; a power of sale 
 after the five years, was held to be implied, and an inquest of partition 
 before the expiration of that time was set aside. Palmer's Appeal, 0. S. i. 439. 
 
 IV. To MOETGAGB. 
 
 19. Of sale in mortgage must be strictly complied with. Smith v. Provin, 
 N. S. ii. 878. 
 
 V. Appointment op Tbustbes. 
 
 20. When executors are constituted trustees, and an estate is devised to 
 them for certain purposes, they derive their power from the will of the testa- 
 tor, and can perform any act which it authorizes them to do. If, however, 
 the executors refused to accept the trust, a court of chancery will have it 
 executed ; but the trustee appointed for that purpose, derives his power from 
 the court, and not from the will. Harris v. Jones' Heirs, 0. S. i. 445. 
 
 POWER OP ATTORNEY. 
 
 1. Blank powers of attorney for transferring stock, although under seal 
 
POWEE OF ATTOENEY— PEACTIOE. 767 
 
 may be filled up at the convenience of the transferee. Bridgeport Bank v 
 New York ^ N. Haven R. S., N. S. i. 210. 
 
 2. The practice of executing powers of attorney and other instruments 
 under seal, with blanks to be filled up afterwards, commented on and dis- 
 approved, and their general validity doubted. Denny v. Lpon, 0. S. ix. 
 626. 
 
 3. To transfer stock, executed in blank, good. Building Association v. 
 Sendmeyer, N. S. v. 443. 
 
 4. Power of attorney executed, with blanks to be filled, commented on 
 and disapproved. Denny v. Lyon, 0. S. ix. 626. 
 
 5. That one who entrusts his name in blank to another to procure a dis- 
 count, is liable to the full extent to which such other may see fit to bind 
 him, when the paper is taken in good faith, without notice, actual or con- 
 structive, that the authority given has been executed. Fullerton v. Sturges, 
 0. S. iv. 691. 
 
 6. Such blank signature has the efi'ect of a general letter of credit ; and 
 the rule is founded as well upon that principle of general jurisprudence, 
 which casts the loss, when one of two innocent persons must suffer, upon 
 him who has put it in the power of another to do the injury. Id. 
 
 PRACTICE. See Trial, Affidavit of Defence, Negligence, Pleading and 
 Practice. 
 
 1. It is necessary that each point submitted to the court, if relevant, be 
 answered. R. R. Co. v. Zebe et ux., 0. S. viii. 27. 
 
 2. Opening address for the prisoner. In re John Morgan, 0. S. ii. 119. 
 
 3. As to amending after verdict by increasing the damage as laid. Miller 
 V. Weeks, O.S.n. 119. 
 
 4. In equity — charges of fraud must be established at the hearing or the 
 bill will be dismissed. Bank v. Stone, 0. S. i. 389. 
 
 5. As to granting an order for inspection of machinery. See Patent. 
 
 6. Relaxation of prison rules. — Form of application. — An application on 
 behalf of a prisoner for a relaxation in his favor of the rules of the prison 
 where he is confined, should be brought forward by way of petition, and not 
 as a motion; and it will not be heard unless a copy of the rules, properly 
 verified, is before the court. Semble, such application should not be enter- 
 tained at all. Reg. v. Wallace, 0. S. ii. 574. 
 
 7. Right to begin — on hearing motion to quash inquisition of a coroner's 
 jury, the party showing cause is not entitled to begin. In re Six Mile Bridge 
 Inquisition, 0. S. ii. 118. 
 
 8. The surname of the attorney to a complaint is sufiioient. Coles v. Cor- 
 nelius, N. S. xiv. 647. 
 
 9. The court is presumed to know the attorneys practising before it. Id. 
 
 10. Where an answer is filed containing a general denial, and also other 
 paragraphs setting up affirmative matter, which could be introduced under 
 the general denial, to which demurrers are filed and sustained, and the cause 
 is then tried on the issues of fact formed by the general denial, resulting in 
 a finding and judgment for the plaintifl^; on appeal to the Supreme Court, the 
 parties by agreement, in writing, endorsed upon the transcript, may agree 
 that the general denial shall be considered withdrawn and the case decided 
 upon the ruling of the court below, upon the demurrers to the paragraphs 
 setting up affirmative matter. In such case the Supreme Court will decide 
 the case as if the general denial had not been filed in the court below. Barn- 
 hizel V. Ferret, N. S. xiv. 678. 
 
 11. Transactions which are not in extinguishment of the cause of action 
 may be given in evidence under the general issue. James v. Aikin, N. S. xiv. 
 760. 
 
 12. A certiorari must be directed to all persons whose return is necessary 
 to enable the court to determine the regularity of the proceedings. The 
 People ex rel. Davis v. Hill, N. S. xiii. 52. 
 
 13. The proper process in a criminal prosecution is a warrant for the body 
 of the defendant. Indiana v. 0. ^ M. R. R. Co., N. S. iv. 583. ^ 
 
 14. A president of a corporation cannot bring a suit in his own name, on 
 an agreement signed by him as president, entered into on behalf of the cor- 
 poration. Nichols v. Williams, N. S. xi. 265. 
 
768 PEACTICE. 
 
 15. An existing injunction can only be removed upon notice and motion to 
 dissolve. Manhattan Fertilizing Co. v. Van Kensen, N. S. xi. 774. 
 
 16. In order to avoid multiplicity of suits, the law compels all claims aris- 
 ing out of the same contract, and due at the time of bringing suit, to be in- 
 cluded in one action. Reformed Church v. Brovm, N. S. ix. 190. 
 
 17. New trial will not be granted for newly discovered evidence merely 
 cumulative, or where there ia laches or after-judgment. Sheldon v. Stryker, 
 N. S. iv. 256. 
 
 18. Objections to form of petition for highway, must be taken before refer- 
 ence to county commissioners. Wensworih v. Town of Farmington, N. S. viii. 
 573. 
 
 19. Practice upon appeals from decree of Probate Judge in New Hamp- 
 shire allowing a guardian's accounts. Patrick v. Cowles, N. S. v. 702. 
 
 20. Bill dismissed, if title on hearing differs from that alleged in bill. 
 Moran v. Palmer, N. S. v. 62. 
 
 21. Bill dismissed as to party complainants joined without their knowl- 
 edge or assent. Gravenstine' s Appeal, N. S. v. 251. 
 
 22. Persons claiming by title paramount to mortgage, cannot be included In 
 bill to foreclose. Horton v. Ingersoll, N. S. v. 59. 
 
 23. A judgment by a default on a service of a summons on the return-day 
 is not void. Armstrong v. Grant, N. S. x. 604. 
 
 24. The withdrawal of a. general appearance entered by an attorney, will 
 not prejudice any rights acquired by the plaintiff. Oreighion v. Kerr, N. S. 
 xiv. 115. 
 
 25. A party to a suit in chancery who resides in another state and ia attend- 
 ing before a master as a witness, is privileged from the service of a summons. 
 Dungan v. Miller, N. S. xiv. 128. 
 
 26. Where plaintiff contracted to carry coal, suit for freight should be in 
 his name alone, though another was joint owner of the barge in which it was 
 carried. Powelton Coal v. McShane, N. S. xiv. 196. 
 
 27. General appearance of defendant is a waiver of all objections to the 
 form of the process and the service. Clifford v. Overseer of the Poor, N. S. 
 xiv. 261. 
 
 28. Before a superior court can interfere on certiorari with a matter in the 
 discretion of the court below, it must be clearly shown that there has been 
 an illegal exercise of the discretion. Id. 
 
 29. Under the practice act of California a complaint cannot be amended 
 in the Supreme Court, so as to make it correspond with the verdict. Hooper 
 V. Wells, N. S. V. 17. 
 
 30. Supreme Court of United States cannot entertain appeals from the 
 court of claims. Gordon v. The United States, N. S. v. 111. 
 
 31. Act of Congress, 24th January, 1865, prescribing oath before admission 
 to bar of United States courts unconstitutional. JVote to Hughes v. Litsey, 
 commenting on the matter of John Baxter, N. S. v. 159. 
 
 32. Objections to defects in the taking of a deposition must be made at 
 time of taking, or they will not be sustained. Doane v. Glenn, N. S. xiv. 462. 
 
 33. If meant to be insisted on must be noted at the time, or on motion to 
 suppress. Id. ^ 
 
 34. A motion to set aside a verdict for the misconduct of a juror, and a 
 motion for a new trial for errors in the rulings of the court, can be filed in 
 the Superior Court (Connecticut) at the same time, and can be reserved 
 together for the advice of this court. Tomlinson v. Town of Derby, N. S. xiv. 
 543. 
 
 35. Evidence reported upon a motion for new trial, which has been over- 
 ruled by consent, cannot be considered in hearing upon exceptions. Maxwell 
 V. Mitchell, N. S. xiii. 128. 
 
 36. Filing the agreement is a copy of the claim, and no more could be re- 
 covered than was due on it. Johnston v. Cowan, N. S. viii. 755. 
 
 37. Bill in behalf of plaintiff and others who may come in. Hubbell v. 
 Warren, N. S. iv. 186. 
 
 88. The Supreme Court in considering whether a Circuit Court erred in 
 refusing to remand a case to a state court, will pay no attention to the cer- 
 tificate of the clerk that certain things " were proved," or " admitted," un- 
 less a bill of exceptions is taken. Knapp v. Sailroad Co., N. S. xiv. 261. 
 
PEACTICE. 769 
 
 89. Plaintiff need not prove all the allegations of the declaration, if less 
 will constitute cause of action. Somers v. Hichards, N. S. xiii. 773. 
 
 40. Supplemental complaint to revive action in New York is matter of right. 
 Roach V. La Farge, N. S. v. 191. 
 
 41. Defendant asking relief, must file cross-bill. Brewer v. Norcross, N. S. 
 v. 03. 
 
 42. The usual practice is to open the inequitable judgments and let the 
 defendant into u. defence on the merits. Cochran v. Eldredge, N. S. v. 
 102. 
 
 43. The common law process of interpleader, has never been abolished 
 in Pennsylvania. Practice thereunder stated. Brownfield v. Carron, 0. S. 
 iv. 442. 
 
 44. Proof of lost record — case stated. Cook v. Shrouder, 0. S. iv. 443. 
 
 45. Money will not be ordered to be paid into court, which is only admitted 
 to be due by parol, and such admission proved by affidavit. McTighe v. Dean, 
 N. S. xi. 58. 
 
 46. Whether there is such a disease as dipsomania, and whether a respon- 
 dent had that disease, and whether an act done by him was the product 
 of such disease, are questions of fact for the jury. State v. Pike, N. S. xi. 
 238. 
 
 47. The respondent requested the court to charge, that the respondent's 
 sanity is a fact to be proved by the state beyond all reasonable' doubt ; that 
 there is no legal presumption of sanity, which can have any weight with the 
 jury as a matter of law ; and, that there is no legal presumption of sanity 
 which is a substitute for evidence, or which, as a matter of law, affects the 
 burden of proof in criminal cases. The court declined so to instruct the 
 jury; but instructed them, "that every person of mature age is presumed to 
 be sane, until there is evidence tending to show insanity, but when there is 
 evidence coming from either side, tending to show insanity, then the state 
 must satisfy the jury beyond reasonable doubt that the prisoner is sane." 
 Held, that the respondent had no ground of exception. Id. 
 
 48. A judge refusing to sign a bill of exceptions may be compelled by a 
 writ grounded on the statute of Westm. 2 ch. 31. Marsh y.Hand, N. S. xi. 
 532. 
 
 49. The state can only be recognized as a suitor in legal proceedings by its 
 legal representatives. The People v. Navarre, N. S. xi. 589. 
 
 50. It is the duty of the court to direct what verdict the jury shall give, 
 where the evidence is so preponderating, that if the verdict was against it 
 the court would set it aside. Fish v. Davis, N. S. xi. 664. 
 
 51. The converse is equally true that the case must go to the jury where 
 the evidence is not so preponderating. Id. 
 
 52. In an action for goods sold and delivered, where there is no proof of 
 delivery, a judgment in favor of the plaintiff will be reversed. Everett v. 
 Parks, N. S. xi. 724. 
 
 53. A general demurrer will not lie where the demurrant is a proper party, 
 though no relief can be had against him. Dorsheimer v. Rorback, N. S. xi. 
 773. 
 
 54. Service of a summons on a railway company, by leaving a copy at the 
 depot, with the ticket agent there, will be good. The M. K. ^ T. R. W. v. 
 Crowe, N. S. xi. 775. 
 
 6.J. Statements made by a judge out of court are not judicial, and one re- 
 lying on them does so at his peril. Id. 
 
 56. An affidavit of defence is in time, though a previous insufficient one 
 had been filed and objected to, and the question of its sufficiency argued but 
 not decided. Bloomer v. Reed, 0. S. ii. 121. 
 
 57. The absence of a witness which will justify the reading of his deposi- 
 tion is a question for the court, and the Supreme Court will not reverse for 
 error, except in a very plain case. 0' Conner v. Layton, 0. S. ii. 121. 
 
 58. Where a party without probable cause, raises a dispute as to the dis- 
 tribution of fund in court, and occasions the appointment of an auditor, the 
 expenses of the auditor ought to be charged to him. Larimer v. Bridenlhal, 0. 
 S. ii. 121. 
 
 69. Affidavit of defence, see Pleading anb Practice. 
 
 60. If the plaintiff makes out a case upon which he can go to the jury, the 
 
 49 
 
770 PEACTICE. 
 
 court has no right after the defence is in, to assume it to be true, and require 
 the jury to find for the defendant. Woods v. Atlantic Mutual Ins. Co., N. S. 
 xii. 47. 
 
 61. An endorser of the writ of a non-resident is not released by the 
 plaintiff becoming a resident of the state. Beywood v. Benton, N. S. xii. 
 54. 
 
 62. A return of non est inventus, procured by the defendant in bad faith, is 
 not such a return as will fix the endorser. Id. 
 
 63. In New Hampshire any one who has rights involved may be admitted 
 to prosecute or defend an action. Parsons v. Eureka Powder Works, N. S. viii. 
 446. 
 
 64. An instrument in writing agi'eeing to pay $150 every month for the 
 privilege of taking clay from certain land is an instrument for the payment 
 of money within the aflSdavit of defence law. Johnson v. Cowan, N. S. viii. 
 755. 
 
 65. One charged with a crime before a committing magistrate and dis- 
 charged on his recognizance for a further hearing, is not privileged from 
 arrest by civil process in returning from the magistrate's office. Key v. Jetto, 
 0. S. ii. 447. 
 
 66. There can be no judgment against a trustee in an attachment suit of 
 real estate, unless there is. first a judgment against the principal defendant, 
 and where there is a want of service upon him, the action will be dismissed 
 on trustee's motion. Washburne v. Mining Co. and Allen Trustee, N. S. viii. 
 634. 
 
 67. The general rule where law and equity are administered in separate 
 forms, is that damages must be sought at law and specific performance in 
 equity. Mitchell v. Sheppard, 0. S. iv. 446. 
 
 68. The rules of the common law have never been considered obligatory, 
 as matters of absolute principle on questions of practice. Grassmeyer v. Bee- 
 son, 0. S. iv. 446. 
 
 69. A verdict for " all land lying in C. county down to the line established 
 by G. and V. in 1849," the said line being the public recorded boundary line 
 of a county,. is sufficiently certain. Smithy. Brotherline, N. S. x. 50. 
 
 70. The assignee of an account must sue in his own name as plaintiff. 
 Long V. Seinrich, N. S. i. 192. 
 
 71. A court having once stated the law correctly in its charge, it is not 
 error to refuse a restatement. Gillet v. Corum, N. S. x. 402. 
 
 72. A plaintiff may join in one action as defendants the maker and guar- 
 antor of a note. Hendrix v. Fuller, N. S. x. 403. 
 
 73. A statement of the t:\cta of a case by a judge of the Superior 
 Court for the purpose of reserving the case for the advice of the Supreme 
 Court, is not a part of the record in the case. Lord v. Litchfield, N. S. x. 
 493. 
 
 74. Where both parties to a suit move for a new trial or file motions in 
 error, the party should go forward in the argument whose right it was to go 
 forward in the court below. Sellew's Appeal, N. S. x. 708. 
 
 75. A judge is not bound to submit a mere spark of evidence. Elliott v. 
 Lycoming Ins. Co., N. S. x. 745. 
 
 76. Payment of money into court, where the declaration is on a special 
 contract, supersedes the necessity of proving it. Id. 
 
 77. It is an acknowledgment of the right of action to the amount brought 
 in, but not beyond. Id. 
 
 78. Such payment waives no defence. Id. 
 
 79. After payment the defendant may take a defence which goes to the 
 whole cause of action. Id. 
 
 80. Where notice was given to take deposition at Connellsburg, instead of 
 McConnellsburg, it is for the court below to judge whether the party was 
 misled by the misnomer, and this court will not interfere with their discre- 
 tion on such a point. Gibson v. Gibson, 0. S. i. 123. 
 
 81. Where there is an objection to the manner of executing a commission 
 to take testimony, the court below will, in a proper case, suppress the depo- 
 sitions, if applied to in time, and award a new commission. But such an ob- 
 jection ought not to be heard at the time of trial. Wallace v. McBlrov, 0. S. i. 
 124. '^ 
 
PEACTICE. 771 
 
 82. If the answer of a witness to an illegal question works the objecting 
 party no injury, it is not an error of which a revising court can take notice. 
 Nailor v. Williams, N. S. ix. 61. 
 
 83. Where there is nothing in the bill of exceptions which enables a revis- 
 ing court to say that questions objected to have exceeded the reasonable li- 
 cense which a court, in its discretion, may allow in crosa-examinati^n, no 
 error is shown. Id. 
 
 84. An objection to the right to maintain an action must be raised at the 
 trial, but otherwise of an objection to the unconstitutionality of an act of the 
 legislature. Brookmany. Ilamill, N. S. ix. 190. 
 
 85. The fact that no transcript of the record was filed at the next term to 
 that when a decree appealed from was made, is, in general, fatal to the ap- 
 peal. The Lucy, N. S. ix. 200. 
 
 86. Upon a motion for a new trial, the instructions of the court and the 
 facta detailed in the motion will be considered solely in their relation to 
 questions made on the trial below. State v. Tool, N. S. i. 244. 
 
 87. In a, suit against common carrier for negligence the burden of proof 
 is on the plaintiff. Inhabitants of No. 4 Plantation v. Hall et ak, N. S. xiii. 
 254. 
 
 88. A libel for review will be entertained by a court of admiralty. iV". 
 Western Iron Co. v. Hopkins, N. S. y . 44. 
 
 89. A summons is not a proper process in a criminal prosecution. Indiana 
 T. 0. ^ M. R. R. Co., N. S. iv. 583. 
 
 90. The Louisville Chancery Court has jurisdiction of torts, but the amount 
 of damages must be settled by a jury. Imcos v. Bruce, N. S. iv. 95. 
 
 91. The writ of entry given by the statute of N. Hampshire for the fore- 
 closure does not abate by the death of the tenant to the writ, but his admin- 
 istrator becomes a party. Pierce v. Jaquith, N. S. ix. 519. 
 
 92. When there is testimony tending to show notice of the agency it should 
 be submitted to the jury. Oulve v. Bigelow, N. S. xi. 135. 
 
 93. When judgment in foreclosure suit not conclusive on a party thereto. 
 Lee V. Parker, N. S. v. 191. 
 
 94. In a suit by the receiver of an insurance company to recover assess- 
 ments on a premium-note, a, transcript of the appointment need not accom- 
 pany the complaint. Boland-y. Whitman, N. S. x. B66. 
 
 95. Jury has right in all criminal cases to find special verdict. Common- 
 wealth V. Chathams, N. S. v. 377. 
 
 96. No exception lies to the decision of a judge of the superior court upon 
 the question whether a deposition, which has been read in evidence in a 
 trial, shall be delivered to the jury when they retire to consider of their ver- 
 dict. Whitheady. Keyes, N. S. i. 567. 
 
 97. After judgment, it is too late for the unsuccessful party to object that 
 the recovery was on grounds not alleged in the complaint. Updike v. Abel, N. 
 S. X. 747. 
 
 98. In an action for fraudulent representations of the vendor, the court 
 charged that if the vendee expressly said he would not purchase lands held 
 under a tax title, and the vendor sold him a tax title, falsely representing it 
 to be " a good title and the best kind of title," it was a fraud. Held, to be 
 correct. Updike v. Abel, N. S. x. 750. 
 
 99. Where a complainant in chancery amends his bill after answer filed, 
 the defendant is entitled to be informed of the amendment either by notice, 
 under rules of court, or by service of process under the amended bill. Mezeik 
 V. McGraw, N. S. x. 790. 
 
 100. After such notice or service the complainant must have a decree that 
 the amended bill be taken pro confesso for want of an answer before he can 
 be entitled to a final hearing and decree. Id. 
 
 101. Where a summons is returned served, when it has not been, and the 
 defendant hearing of it, and endeavors to get the service quashed, and, fail- 
 ing in this, appears to the action, he cannot complain on appeal. Smith v. 
 Hewson, 0. S. i. 441. 
 
 102. Where a juror has conversed with a person not of the panel respect- 
 ing the case on trial, it is sufficient cause for setting aside the verdict, unless 
 it appears that the successful party in the suit has not been benefited or the 
 
772 PEACTICE. 
 
 defeated party injured by the fact of the conversation. Tomlinaon v. Town of 
 Derby, N. S. xiv. 843. 
 
 103. Where a juror allowed such a conversation, in which it was stated to 
 him that if the plaintiff should recover five thousand dollars damages he 
 would have nothing left after paying his expenses, in which the juror ex- 
 pressed his concurrence, it was held, after a verdict for the plaintiff, that the 
 effect of the conversation was presumably to increase the damages allowed, 
 and that the verdict ought to be set aside. Id. 
 
 104. It is not necessary that the court should order the parties called be- 
 fore taking the verdict of the jury. Merwin v. Wheeler, N. S. xiv. COf. 
 
 105. Where defendant died after verdict, and pending a motion for a new 
 trial on his behalf, the ordering the new trial was suspended to enable the 
 plaintiff to apply to the court to impose terms on making the rule absolute. 
 Kay V. Thompson, N. S. x. 594. 
 
 106. Where a party under the Code of Maryland elects to be tried by the 
 court, instead of by a jui-y, unless he is determined to be guilty or not guilty, 
 there can be no judgment, either of conviction or acquittal. Leagues. State, 
 N. S. xii. 196. 
 
 107. Where the court fail to agree, the prisoner is in the same position as 
 if there had been no trial, and a re-trial must be had. Id. 
 
 108. The section of the Maryland Code giving the clerk of a court the right 
 to satisfy a judgment, upon the order in writing of the plaintiff or his attor- 
 ney, was not designed to affect the question of the attorney's authority to 
 give the order. B. J- 0. R. R. Co. i. Fitzpatrick, N. S. xii. 257. 
 
 ' 109. A variance between the statements of the bill and the proof, if not of 
 such a character as to operate as a surprise to the defendants, and the defend- 
 ants do not appear to be thereby injured, should generally be held to be im- 
 material. Offult V. Scott, N. S. xii. 575. 
 
 110. In a feigned issue, the facts are expressly for the jury, and questions 
 of law should be submitted to the court, on application for judgment on the 
 verdict. McKinley v. Lamb, N. S. xii. 597. 
 
 111. A material fact in a suit, either at law or in equity, cannot be put in 
 issue by a notice that it will be contested at the trial; it must be regularly 
 pleaded. Hudson v. Bingham, N. S. xii. 637. 
 
 112. The counsel of a prisoner cannot assail the charge of the court upon 
 the trial when he has not excepted to it. Pralich y. The People, N. S. xii. 
 659. 
 
 113. Upon a writ of error, the court has no power to hear a motion for a 
 new trial. Id. 
 
 114. Such a motion must be in the Oyer and Terminer. Id. 
 
 115. Where the defendant dies after verdict, while the ease is before the 
 bench on exceptions, judgment may be entered nunc pro tunc. Blaisdell v. 
 Harris, N. S. xii. 662. 
 
 116. Instructions which cover the whole case should be so framed as (o 
 meet the points raised by the evidence and pleadings on both sides. Fitz- 
 gerald V. Hayward, N. S. xii. 771. 
 
 117. The statutes of Missouri, authorizing the courts to refer issues of fact 
 to a referee in certain cases, are directory only, and not mandatory. Id. 
 
 118. When the charter of a city authorizes s.uits to be commenced against 
 it by the service of process upon the mayor, the courts of the United States 
 are bound, since the Act of Congress of June 1, 1872, to conform to the same 
 manner of service. Perkins v. City of Watertown, N. S. xii. 777. 
 
 119. State laws, when adopted by Congress, become obligatory on the Fed- 
 eral courts. Id. 
 
 120. Service on the mayor elect, before acceptance or qualification, is not 
 a service on the mayor of the city. Id. 
 
 121. Where there is no mayor nor acting mayor, 'Service on the city olevk 
 and city treasurer is not sufBcient. Id. 
 
 122. Courts must administer the law as they find it, and not supply defects 
 in legislation, when a difficult or hard case presents itself. Id. 
 
 123. The law provides but two modes of correcting errors in legal pro- 
 ceedings — by motion, and by appeal. Libby v. Rosekrana, N. S. ix. 324. 
 
 124. Special matters may be given in evidence under a general plea, with- 
 out notice, where no notice is required by rule of court, and no demand for 
 
PRACTICE. 773 
 
 it is made teforeliand by the opposite party. Angier v. Angier, N. S. ix. 
 S35. 
 
 125. Laws of other states must be proved. Uhler v. Semple, N. S. ix. 390. 
 
 126. The fourth sect, of the Act of March 5, 1865, establishes the mode in 
 ■which parties may submit oases to the court without a jury, and the manner 
 in which a review of the law of such oases may be had in the Supreme' Court 
 of the United States. Norris v. Jackson, N. S. ix. 421. 
 
 127. The special finding of the facts mentioned in that statute is not a 
 mere report of the evidence, but a finding of those ultimate facts on which 
 the law must determine the rights of the parties. Id. 
 
 128. If the finding of facts be general, only such rulings of the court, in 
 the progress of the trial, can be reversed, as are presented by a bill of excep- 
 tion. Id. 
 
 129. In such cases a bill of exceptions cannot be used to bring up the whole 
 testimony for review, any more than in a trial by jury. Id. 
 
 130. Objections to the admission or rejection of evidence, or to such rulings 
 or propositions of law as may be submitted to the court, must be shown by 
 bill of exceptions. Id. 
 
 131. If the parties desire a review of the law of the case, they must ask 
 the court to make a special finding, which raises the question, or get the 
 court to rule on the legal propositions which they present. Id. 
 
 132. After respondent has appeared generally on an appeal, it is too late 
 to object to the appeal for want of a stamp. CoppernoU v. Ketcham, N. S. 
 ix. 518. 
 
 133. A verdict will be set aside, if the judge sends the jury minutes of 
 the "strongest evidence" on one side only, on a material point. Glims y. 
 Smith, N. S. ix. 518. 
 
 134. To avoid the statute of limitations, the issuing of the writ is the com- 
 mencement of the action, for other purposes the service of the writ is so re- 
 garded. Kirby v. Jackson, N. S. ix. 574. 
 
 135. Notice of discontinu.inoe of a former suit, before service of summons 
 in second suit, will prevent the former abating the latter. Id. 
 
 136. A party sued by a wrong name, who is served with the writ, and fails 
 to plead in abatement, is concluded by a judgment. Patterson v. N. C. R. R., 
 N. S. ix. 581. 
 
 137. A plaintiff is not entitled, as of right, to litigate anew on a scire facias 
 the sum for which one assumed as trustee, in a trustee process, shall be 
 charged, if that question has been tried and determined in the original suit, 
 and the amount paid for which the trustee was there held chargeable. Brown 
 V. Tweed, N. S. i. 318. 
 
 138. Action must be in name of survivors, where one of the partners is 
 dead, for debt due partnership. Strang v. Hirst, N. S. xiii. 126. 
 
 139. Objection to plaintiffs maintaining suit as surviving partner must be 
 taken in abatement. Id. 
 
 140. The statement under the R. S. of Maine is a substitute for a special 
 plea, and may be bad for duplicity. Id. 
 
 141. Where a case has gone to decree in state court, it is too late to remove 
 it to the Federal courts. Kingsbury v. .Kingsbury, N. S. xiii. 127. 
 
 142. The removal can only be made by application of defendant on enter- 
 ing his appearance. Id. 
 
 143. A minor cannot consent to change of forum. Id. 
 
 144. A voluntary appearance cures any irregularity in the service of pro- 
 cess. Carpentier v. Minturn et al., N. S. xiii. 253. 
 
 145. No objection can be made to jurisdiction after a general appearance. 
 Id. 
 
 146. A party who objects to the admissibility of evidence cannot be heard 
 to object to its withdrawal from the jury. Sittig v. Birkestack, N. S. xiii. 
 263. 
 
 147. The court has the power, at any time during trial, to modify its in- 
 structions to the jury. Id. 
 
 148. Where the indorsee of an inland bill sues the drawer in the circuit 
 court, it is not enough to allege that the plaintiff is a citizen of one state 
 and the defendant of another. Morgan' i Executor v. Gay, N. S. xiii. 655. 
 
 149. A judgment in an Alabama court in 1861, in a suit between persons 
 
774 PEACTICE— PRESCRIPTIOlSr. 
 
 within its jurisdiction, and a subsequent sale of land under execution on the 
 judgment, passed a good title to the purchaser. Parkt v. Coffee, N. S. xiv. 496. 
 
 1 50. At common law, courts had the power to order inspection of papers. 
 Sillyard T. Township of Harrison, N. S. xiv. 254. 
 
 151. A party to a suit in chancery, who resides in another state, and is 
 attending before a master as a witness, is privileged from the serrioe of a 
 summons. Dungan v. Miller, N. S. xiv. 128. 
 
 152. General appearance of defendant is a waiver of all objections to the 
 form of the process and the service. Clifford v. Overseer of the Poor, N. S. 
 xiv. 261. 
 
 PRECATORY CHARITABLE TRUST. See Lomax v. Ripley, 0. S. iii. 510. 
 
 PRECEDENT. 
 
 A court is not bound to follow the decisions of courts of other states as pre- 
 cedents. Caldwell v. Oale, N. S. ii. 697. 
 
 PRE-EMPTION. 
 
 1. Where a settler on public lands, entitled to a pre-emption, procures a 
 capitalist to pay the purchase-money into the land office, and allows him to 
 receive the receiver's receipt in his own name, as security for the repayment 
 of the money, it is an equitable mortgage. Wright v. Shumway, 0. S. ii. 20. 
 
 2. The pre-emptor of territorial land, under the act of Congress of Sept. 
 4th, 1841, is restrained from aliening it (with certain exceptions) before 
 entry in the land office. Meyers v. Croft, N. S. xi. 308. 
 
 PREMISES. 
 
 Construction of the word " premises " in a deed may be assisted by resort 
 to previous written agreement between the parties. Zinc Co. v. Pranklinite 
 Co., N. S. vi. 568. 
 
 PREMIUM. 
 
 Where an insurance company of New York, executing policies of insurance 
 which were transmitted to agents in Baltimore who had authority to receive 
 applications for policies and to receive and transmit notes for the premiums, 
 it was held that it was a New York, and not a Maryland contract. Wright v. 
 The Sun Mutual Ins. Co. of N. York, 0. S. vi. 485. 
 
 PRESCRIPTION. 
 
 1. Whether mere non-user of a right amounts to an abandonment of the 
 right, will depend upon the circumstances which caused the non-user. 
 Therefore, where the use of an immemorial right of way to a close was dis- 
 continued, because the occupiers had a more convenient access to it over an- 
 other close in their occupation. Held, that the non-user afforded no evidence 
 of an intention to abandon the right. Ward v. Ward, 0. S. i. 309. 
 
 2. The diversion of the water of a stream for twenty years, gives a title by 
 prescription. Stein v. Burden, 0. S. iii. 55. 
 
 3. The right of one man's house to support from the adjoining house not 
 a right of prescription. Pollock, C. B., in Solomon v. Vinterer's Co., 0. S. 
 vii. 622. 
 
 4. The owner of land through which a stream of water passes may lawfully 
 build and maintain upon his own land a dam across the stream for a fish- 
 pond, although he thereby prevents the flowing back of water upon his land 
 from the dam of a mill-owner below, which has not been maintained long 
 enough to give a right by prescription. Wood v. Edes, N. S. i. 317. 
 
 5. Enjoyment of mill property under a prescriptive right cannot be dis- 
 turbed or restrained, except on the ground of public nuisance. CUy v. Erick- 
 son, N. S. vi. 123. 
 
 6. What use of road by public will make a highway by prescription. 
 Connary v. Jefferson, N. S. vi. 317. 
 
 7. There may be a valid prescription binding the owner of land to maintain 
 perpetually a fence. Adams v. Van Alstyne, N. S. iii. 58. 
 
 8. Maintenance by a party exclusively for more than twenty years war- 
 rants the presumption compelling him to do so. Id. 
 
 9. Maintenance of fence in a highway for forty years gives a right to con- 
 tinue it there as against the public. Cutter v. Cambridge, N. S. iii. 316. 
 
 10. Twenty years' use of the wafer of a stream in a particular way is evi- 
 dence of a right thus to use the water. Burnham v. Eemplon, N. S. iii. 380. 
 
' PEESCEIPTION— PRINCIPAL AND AGENT. 775 
 
 11. The same proof of user which establishes the right is equally conclu- 
 sive iu establishing the limitation of that right. Id. 
 
 12. A natural or artificial "stone row" in the beJ of a stream on land 
 of defendant for many years, is such a dam as will acquire a right by lapse 
 of time. Brown v. Bush, N. S. iii. 573. 
 
 13. Where the court charged the jury that a party who claimed a pre- 
 scriptive right to a public landing must have excluded the public and every 
 member of it, it was held that the charge was open to exception. Bur- 
 rows V. Gallup, N. S. vi. 84. 
 
 PRESENTATION. 
 
 The legal holder of a check may maintain an action against a bank upon 
 the presentation and refusal by said bank. Fogarties v. The State Bank, 0. S. 
 viii. S93. 
 
 PRESIDENT. 
 
 1. President of U. S. cannot be restrained from executing the act of Con- 
 gress alleged to be unconstitutional. State of Mississippi v. Johnson, N. S. 
 vi. 632. 
 
 2. By the Constitution of the U. S., Congress only has power to suspend 
 the writ of habeas corpus, and such power does not reside in the President. 
 £x parte John Merryman, 0. S. ix. 524. 
 
 8. History of the habeas corpus act in England and America. Id. 
 
 PRESUMPTION. 
 
 1. The absence of the endorsement of the governor of the state, on bonds 
 issued by the United States to such state, and their being overdue when they 
 passed from the state treasury, raises no presumption that they were issued 
 for treasonable or unlawful purposes. National Bank of Washington v. Texas, 
 N. S. xiv. 192. 
 
 2. Presumption on the subject of legitimacy examined historically and on 
 principle. Page v. Dennison, 0. S. v. 4B9. 
 
 I. Pkesumption of Payment. 
 
 3. The presumption of payment of a specialty cannot be rebutted except 
 by evidence which will create a presumption equally strong the other way. 
 Sellers v. Solman, 0. S. i. 441. 
 
 4. Where, in an action on a sealed note, evidence is offered which, in the 
 judgment of the- court, will, in connection with the period of time actually 
 elapsed, reasonably convince the jury that the debt has been paid, though 
 twenty years have not elapsed ; or, on the other hand, that the debt has not 
 been paid, notwithstanding the period of presumption has elapsed, it is the 
 duty of the court to receive it and to submit it to the jury, with such advice 
 as will enable them to estimate it at its proper value. The further that the 
 period stops short, or the more it exceeds the period of presumption, the 
 more cogent and decisive must be the circumstances relied on. Coulter's 
 Ex'r V. Marchand, 0. S. ii. 187. 
 
 5. Mutual demands do not extinguish each other unless there be an actual 
 application of the one to the other. Id. 
 
 II. Of Sukvitorship. 
 
 6. Presumption of survivorship, subject discussed, 0. S. iii. 439. 
 
 PRINCIPAL AND AGENT. 
 
 1. A note signed by the authorized agents of a corporation, with words 
 annexed to their names intimating their agency, is the note of the corpora- 
 tion, and not of the persons signing it. Johnson v. Smith and Others, 0. S. i. 
 570. 
 
 2. Though a person duly authorized as agent, and acting as such, may 
 bind himself personally; yet this must be done by language clearly expres- 
 sive of such an intent. Id. 
 
 5. In case of a defective power to bind the principal, if the agent speaks 
 only in the language of the principal, and does not use apt language to bind 
 himself, he will not be liable on the contract, but may be subjected for a 
 false assumption of authority. Id. 
 
 4. A special power to an agent must be strictly pursued. Moody, AdrrHr v. 
 Threlkdd, 0. S. ii. 381. 
 
 6. Where an agent, who has received instructions from his principal to 
 effect a policy of insurance, employs a third person for that purpose, who 
 
776 PRINCIPAL AND AGENT. 
 
 gets the policy effected through his own broker, but shows to him at the time 
 the instructions which the principal had given, the broker has no right to 
 retain the money he may receive under the policy upon a loss occurring 
 against a debt due to him from such third person ; and such retention being 
 therefore unlawful, will not give the principal any right of action against hi3 
 agent to recover the whole amount received by the broker under the policy. 
 Cahill V. Dawson, 0. S. vi. 176. 
 
 6. Qusere, whether an agent employed by his principal to effect a policy 
 of insurance is liable for a breach of his duty as agent if he employ another 
 person to get the policy-effected by a policy broker? Id. 
 
 7. It is a clear and general principle that the principal is liable for the 
 negligence of his agent. Goakletj ■/. The North, Pennsylvania Railroad Co., 
 0. S. vi. 355. 
 
 8. Liability of agent where goods are directed to the agent without de- 
 scribing him as agent. Mare v. Charles, Oi S. v. 319. 
 
 9. Liability of agent of known principal. Subject discussed, 0. S. v. 325. 
 
 10. The agents of the assured having, in accordance with the usage, ad- 
 justed the amount of the loss with the broker of the underwriter, and received 
 from him a credit note for the amount to be paid in a month, the broker 
 having funds of the underwriter in Lis hands suificient to meet the 
 amount; but after it was due, becoming insolvent, it was held, in an action 
 on a policy of insurance, that the underwriter was not discharged. Macfar- 
 lane v. Oiaunocopulo, 0. S. vii. 510. 
 
 11. Right of party to resort to the undisclosed principal. See Campbells, 
 nicks, 0. S. vii. 509. 
 
 12. Of agent to bind principal where promissory note with blank amount is 
 entrusted to him to get discounted. Fullerlon v. Sturges, 0. S. iv. 690. 
 
 13. A principal authorizes his agent to sell a log of mahogany. The agent 
 fraudulently concealed from an intended purchaser a defect in the log, who, 
 upon the agent's assurance that it was sound and worth 6s. or 4«. a foot, 
 bought it at 3s. a foot. The log was delivered to the purchaser, and paid 
 for by two bills given to the principal, and which were duly paid by the pur- 
 chaser. The log was sawn up and partly used liy the purchaser, who then 
 discovered it to be hollow and defective, and almost useless. The principal 
 did not in any way whatever authorize, or had he any knowledge of the fraud 
 practised by the agent until the transaction was completed ; but the princi- 
 pal had all the benefit of the contract. An action of deceit having been 
 brought by the purchaser against the principal, the learned judge at trial 
 held that the defendant was not liable, and he directed a verdict to be 
 entered for him. Udel v. Atherton, 0. S. ix. 703. 
 
 14. An insurance company is bound by representations in reference to its 
 capital stock which is paid in and invested, made by its agent appointed to 
 solicit risks, &c. Fogg v. Griffin, N. S. i. 56. 
 
 15. An agent cannot act for his own benefit in relation to the subject-mat- 
 ter of the agency, to the injury of his principal. Bruce etal. y. Davenport, N. 
 S. i. 699. 
 
 16. An agent is bound to follow the instructions of his principal ; and if he 
 neglects to do so, he will make himself liable for the loss or damage which 
 his principal sustains. Id. 
 
 17. The prisoner, the cashier, and collector of a manufacturing firm had, 
 in addition to a fixed yearly salary, a percentage on the profits made by the 
 firm, but was not to be liable for its losses. He had no control over the 
 management of the business. Held, that he might be indicted as a servant 
 for embezzling the moneys of the firm. The Queen y.Macdonald, Nov. 9, 1861, 
 N. S. i. 444. 
 
 18. Where one purchases property at a judicial sale, as the agent of 
 another, and in his name, but without authority from the principal, and con- 
 sequently the contract is not binding upon the latter, the agent is not person- 
 ally liable in an action upon the contract; nor can he be compelled, by the 
 exercise of the equitable jurisdiction of the court, to perform it as his own. 
 Hegeman v. Johnson et al., N. S. i. 378. 
 
 19. Whenever the very act of the agent is authorized by the terms of the 
 power, that is, whenever by comparing the act done by the agent with the 
 words of the power, the act is in itself warranted by the terms, and such act 
 
PEINCIPAL AND AGENT— PEIORITY. 777 
 
 13 binding on the constituent as to all persons dealing in good faith with the 
 agent. Fool-note to Gould v. The Town of Sterling, N. S. i. 802. 
 
 20. Where a person residing in New York, and acting as the authorized 
 agent of another, requested a friend at Cincinnati to collect from a corpora- 
 tion there a dividend due to his principal upon stock, and to transmit to him 
 a draft for the amount. Held, that if the agent left New York while expect- 
 ing the draft, it was his duty to leave authority with some one to present the 
 draft when received. Brady -v. Little Miami Railroad Company, N. S. i. 239. 
 
 21. And that for the negligence of the agent in not presenting such draft 
 for payment within the proper time, the principal was responsible. Id. 
 
 22. Under ordinary circumstances, an authority given by a partnership 
 firm to its agent to advance moneys for the purchase of notes or bills to be 
 remitted to the firm, will not justify the agent in continuing to make such 
 advances, after being notified of a change in the firm by the admission of 
 new members. Tliere must be a renewed authorization by the ne.w firm. 
 Callanan v. Van Vleck, N. S. i. 636. 
 
 23. A cause of action for conversion by the defendant of funds intrusted 
 to him as an agent, for which he has not accounted to his principal, is as- 
 signable. Gould V. Gould, N. S. i. 632. 
 
 24. The plaintiff and defendant being owners of adjoining lots, the latter 
 built a wall upon his lot along the boundary-line between them, the same 
 being constructed for him by D. & C, under a written contract. The defend- 
 ant furnished the materials only, but employed no workmen and exercised 
 no control over them. Held, that he was not liable to the plaintiff for damages 
 caused by the blowing down of the wall before it was completed ; the rela- 
 tion of master and servant, or principal and agent, not existing between the 
 defendant and those by whom the wall was constructed. Benedict v. Martin, 
 N. S. i. 633. 
 
 26. A joint action of tort, in the nature of trespass, may be maintained 
 against a corporation and its servant, for a personal injury inflicted by the 
 latter in discharging the duties imposed on him by the corporation, although 
 they might have been equally well discharged without the use of undue or 
 illegal force. Hewett v. Swift, N. S..i. 505. 
 
 26. An action lies to recover back money paid to a broker for a note, the 
 signature to which is forged, sold to him without disclosing his principal, 
 although he has paid the money to his principal, and although the note was 
 sold for a sum less than its face. Merriam v. Wolcott, N. S. i. 436. 
 
 27. Principal and agent, see Powee. of Attobnet. 
 
 28. If an incorporated company, acting by its agent, induces a person to 
 enter into a contract for the benefit of the company, that company can no 
 more repudiate the fraudulent agent than an individual could repudiate him, 
 and the company are bound by the misrepresentations of their agent. But 
 the principle cannot be carried so far that an action can be brought against 
 the company on the ground of deceit, because the directors have done an act 
 which might render ihem liable to such an action (per Lord Ckanworth). 
 Hallway Co. v. Conybeare, N. S. i. 373. 
 
 29. It is the duty of the. telegraph company to transmit the messages just 
 as they are delivered to them. Dickey -f. Marine Telegraph Co., 0. S. viii. 358. 
 
 PRINCIPAL AND SURETY. 
 
 1. A surety in a bond is not discharged by a distinct agreement between 
 the principal and the creditor, stipulating for the payment of usurious in- 
 terest ; such agreement being void as to the usury, and not otherwise affect- 
 ing the original contract. Mayfield v. Gordon, 0. S. ii. 187. 
 
 2. In action to recover the price of labor in which the defence is that the 
 labor was performed on the credit of a third person, evidence of an offer by 
 such third person, after the commencement of the action, to pay the plaintiff 
 for the same is incompetent, and the admission of such evidence is sufficient 
 ground for setting aside a verdict in favor of defendant. Larry v. Sherburne, 
 N. S. i. 57. 
 
 PRIORITY. 
 
 1. As between judgment creditors whose judgments are of the same date, 
 the one who first takes steps to enforce his judgment against property, 
 whether real or personal, subject to the lien of the judgment, acquires a 
 priority as to such property. Cook v. Dillon, 0. S. viii. 435. 
 
778 PEIOEITY— PRIVILEGED COMMUNICATION. 
 
 2. Where land is sold under au executory contract, liens against the equi- 
 table estate of the vendee will be postponed to a purchase-money mortgage, 
 though it be to a third person, and not to the Tender; provided it be given 
 as a part of the same transaction, and, in fact, to secure the purchase-nioney. 
 CampbelVs Appeal, 0. S. vi. 757. 
 PRISONER, ANSWERS BY. 
 
 On the trial of a prisoner for the murder of his wife, the prosecution was 
 permitted to introduce in evidence the will of the father of the deceased. 
 Held, that such evidence was properly admitted, as bearing upon the- ques- 
 tion of motive. Gates v. People, 0. S. ii. 671. 
 PRISON WARDEN'S JOURNAL. ' 
 
 The journal of the warden of a prison, as to evidence that defendant was 
 in a certain prison at a certain time. Eauser v. Oomm., N. S. v. 668. 
 PRIVATE CORPORATION. See Bane and Bankers^ 
 
 The legality of the election of trustees of German Catholic St. Peter's Ceme- 
 tery Association, and the right of the defendants to exercise the powers, &c., 
 cannot be tested by bill in chancery, but fall within the jurisdiction of pro- 
 ceedings at law by quo warranto. Sullman v. Sonkomp, 0. S. iv. 697. 
 
 PRIVATE PROPERTY. 
 
 Can only be taken for public use, when the necessity for such an appro- 
 priation is first established by a jury. Lumsden v. The City, 0. S. vi. 157. 
 PRIVATE RIGHTS. 
 
 As aflfected by public right. See Kearns v. Cordwainei' s Company,0. S. viii. 250. 
 PRIVATE WAY. 
 
 The owner of the land on which a canal was dug, and who appeared to 
 have incurred the major part of the expense of making it, gave notice to 
 other individuals, who had contributed to its repair, that they must compen- 
 sate him for its use, at a rate which he specified in his notice ; and on this 
 refusal, and continuing its use under a claim of right to do so, brought action 
 in assumpsit to recover compensation for the use. Meld, that the action could 
 not be maintained. Ward v. Warner, 0. S. ix. 114. • 
 
 PRIVILEGED COMMUNICATION. 
 
 1. Conversation between attorney and client after the relation has ceased 
 and on subjects not connected with the one on which the attorney was em- 
 ployed, is not privileged. Mandeville v. Guernsey, N. S. ii. 630. 
 
 2. Owner of building set on fire may caution his employees against the sus- 
 pected incendiary. Zawler v. Earle, N. S. ii. 445. 
 
 3. Professional communications made with a view to secure the title of the 
 client against all claimants are privileged from production, though made ante 
 litum motam. Manser v. Dix, 0. S. iv. 127. 
 
 4. Coroner not liable for words spoken by him to his jury. Thomas v. 
 Churton, N. S. iii. 628. 
 
 5. The testimony of a person as a witness before a coroner's jury, such / 
 person not being under arrest nor charged with crime, may be given in evi- 
 dence against him. Hendrickson v. The People, 0. S. ii. 531. 
 
 6. Where in the course of a capital trial the witness, a Roman Catholic 
 clergyman, was asked in his examination "If Mrs. C. (the deceased person) 
 had not made in the sacramental confession acknowledgments of improper 
 intercourse." Held, inasmuch as the witness' knowledge was not obtained 
 in any civil capacity, or as a private individual, but in the character of a 
 Roman Catholic minister of the sacrament of penance, a sacrament held by 
 that church to be an inviolable and eternal secret, subjecting the revealer to 
 the severest ecclesiastical punishments in this world, and, as he believed, to 
 eternal punishment as a sacrilegious violation of his oath, the communication 
 was privileged, and that the witness might decline answering without sub- 
 jecting himself to an attachment for contempt. Commonwealth v. Cronin, 0. 
 S. iv. 465. 
 
 7. As a general principle every person when called upon in a court of jus- 
 tice is bound to testify whatever he may know touching the matter inquired 
 of, a principle, however, subject to certain exceptions, as professional commu- 
 nications made to attorneys, &c. Id. 
 
 8. By the language and spirit of the several state and federal constitutions 
 it is obvious that religious toleration was one of the great purposes that 
 
PEIVILEGED COMMUNICATION— PEOCESS. 779 
 
 their framers had in view, and that, they we're intended to secure forever to 
 all the free exercise and enjoyment of religious profession and worship, and 
 any other construction than one that holds the sacramental confession a 
 privileged communication would be an invasion of the constitutional boon of 
 religious toleration. Commonwealth v. Oronin, 0. S. iv. 4t)5. 
 
 PRIVILEGED DEBTS. 
 
 Subject discussed, 0. S. ix. 513. 
 
 PRIZE. 
 
 1. Prize courts deny damages or costs, where there has been "probable 
 cause for seizure." The Thompson, N. S. v. 573. 
 
 2. When probable cause exists. Id. 
 
 3. What is to be considered as capturing force in distributing prize-money, 
 under act of July 7th, 18B2. The Atlanta, N. S. v. 639. 
 
 4. The bon& fide purchase by a neutral, of a vessel of a belligerent, even 
 though the same is dismantled, will not protect it from recapture by the other 
 belligerent. The Georgia, N. S. viii. 250. 
 
 5. Property captured on land by the officers and crews of a naval force is 
 not "maritime prize." Alexander's Cotton, N. S. iv. 676. 
 
 6. It is the duty of the Prize Court to determine what ships shall share in 
 the proceeds of a prize ; but it is the province of the Secretary of the Navy 
 to decide what persons constituted the officers and crews of such ships, and 
 the share which each shall receive. The Cherokee, N. S. iii. 289. 
 
 7. AH" prizes belong primarily to the government, and any person claiming 
 to participate therein must show a grant from the government. Id. 
 
 8. The English prize acts and the decisions under them examined and 
 commented on at length. Id. 
 
 9. The origin and growth of the doctrine of constructive capture stated. Id. 
 
 10. The English doctrine of constructive capture by association is entirely 
 judicial, has not been uniform, is not well defined or settled, and appears 
 finally to have been discarded. The Cherokee, N. S. iii. 289. 
 
 11. The statutes of the United States provide expressly for two classes of 
 ships which shall share the proceeds of a prize : 
 
 (1.) Those making the capture; 
 
 (2.) Those within signal distance of the vessel making the capture. Id. 
 
 12. The statutes of the United States having thus adopted only a portion 
 of the English doctrine of constructive capture, our courts will not go beyond 
 the limits thus assigned them. Id. 
 
 13. The United States Prize Acts of 1799, 1800, and 1862 commented on. Id. 
 
 14. The statutes also provide diEFerent rules of distribution of the proceeds 
 where the prize was of equal or superior, and where it was of inferior force 
 to the vessel or vessels making the capture. The Atlanta, N. S. iii. 675. 
 
 15. In estimating the relative force of the prize for the purpose of such 
 distribution, only the first class of captors are to be considered. Id. 
 
 16. The act of foreign nations in recognizing the so-called Confederate 
 States as a belligerent, estops their subjects from disputing the lawfulness of 
 captures on the high seas by the United States' forces. United States ■^ . 100 
 Barrels, N. S. iii. 735. 
 
 17. Vessel sailing with intent to break blockade is liable as a prize from 
 the moment of sailing. The Circassian, N. S. iv. 502. 
 
 18. The personal disposition of residents in enemy's territory cannot be 
 inquired into on a question of prize. Alexander's Cotton, N. S. iv. 576. 
 
 PROBATE. 
 
 1. Practice upon appeals from decree allowing a guardian's account. Pat- 
 rick V. Cowles, N. S. V. 702. 
 
 2. In probate cases, in Michigan, to the Supreme Court. Jackson v. Eos- 
 mer, N. S. v. 249. 
 
 PROCEEDINGS IN REM. 
 
 By a foreign court, except a Court of Admiralty, or one exercising a simi- 
 lar jurisdiction in the case of seizure, are not binding on the rights of per- 
 sons not parties thereto. Deviney v. The Memphis, 0. S. ii. 666. 
 
 PROCESS. . , . .^ . . 
 
 1. Service made by a trick, by which defendant was got withm the juris- 
 diction, will be set aside. Metcalf v. Clark, N. S. iii. 502. 
 
780 PEOCESS— PROMISSORY NOTE. 
 
 2. A return to a summons that defendant was served personally is suffi- 
 cient without stating that it was in the county. Knowles t. Gaslight and 
 Coke Co., N. S. xiii. 691. 
 
 3. In an action on a judgment of another state, the defendant may show 
 that he was not served, notwithstanding that the record shows that he was. 
 Knowles v. Gaslight and Coke Co., N. S. xiii. 691. 
 
 4. Not being served the number of days required by law is simply a de- 
 fective service. Darrah v. Watson, N. S. xiv. 56. 
 
 6. A policy of insurance containing a. clause that no action should be 
 brought upon it unless within twelve months after the loss had occurred. 
 Ins. Co. v. Hall, N. S. iii. 417. 
 
 6. Process for the commencement of a suit may be served on the defend- 
 ant, a non-resident of the state, on board a foreign vessel at her dock, while 
 the defendant is only transiently within the jurisdiction. Feabody v. Hamilton, 
 N. S. xi.3H. 
 
 7. Service of a summons on a railway company, by leaving copy at the 
 depot, with the ticket agent there, will be good. The M. K. ^ T. E. W. v. 
 Crowe, N. S. xi. 775. 
 
 8. Process regular on its face from a court having jurisdiction protects an 
 officer executing it. Wickersham v. Corlew, N. S. xii. 534. 
 
 9. The fact that defendant was decoyed into the state where such judgment 
 was obtained is not a sufficient defence. Luchenbach v. Anderson, N. S. iv. 252. 
 
 10. The proper process in a criminal prosecution is a warrant for the body 
 of the defendant, and the service of a summons, in a criminai prosecution 
 against a corporation upon an agent or officer, is not sufficient to compel such 
 corporation to plead. Indiana v. 0. ^ M. R. R., N. S. iv. 683. 
 
 PROFESSIONAL ETHICS. 
 
 ■1. The case of Mr. Bradley and the Supreme Court of the District of Co- 
 lumbia. Subject discussed. N. S. viii. 129, 305. 
 
 2. Proper limits of professional responsibility and duty. Subject dis- 
 cussed. N. S. X. 281. 
 
 3. The responsibilities and duties of the legal profession. Subject dis- 
 cussed. N. S. X. 545. 
 
 4. Notice of Sharswood's Professional Ethics, 0. S. iii. 193. 
 
 PROFESSIONAL SERVICES. See Attorney. 
 
 PROFESSIONAL SKILL. 
 
 When surgeon may recover for services. Though a surgical operation be 
 not performed with the highest degree of skill, or might have been performed 
 more skilfully by others, yet if it be of service to the patient, the surgeon is 
 entitled to adequate compensation. Alder, Adm'r v. Buckley, 0. S. i. 381, and 
 see Promissokt Note, 14. 
 
 PROHIBITION. 
 
 1. Writ of, can only be used to prevent doing of some act. U. S. v. Hoff- 
 man, N. S. vi. 442. 
 
 2. When it will not be issued to a court. Id. 
 
 PROHIBITORY LIQUOR LAW. See Liquor.* 
 
 1. Held to be unconstitutional. Herman v. The State, 0. S. iv. 344. 
 
 2. Where sale to person in the habit of getting intoxicated is prohibited, 
 vendor must sell to such person at his peril. . Miller v. Ohio, 0. S. iv. 768. 
 
 3. Constitutionality of, see Constitutional Law. 
 
 PROMISSORY NOTE. See Bills and Notes, Identity, Broker. 
 
 1. Where negotiable paper has been put in circulation by fraud, proof of 
 the circumstances may be given ; when it is incumbent on the holder to show 
 that he is a bon& fide holder and for a valuable consideration. Cummings v. 
 Mead, 0. S. vi. 51. 
 
 2. If a negotiable note is accepted in satisfaction of a previous debt, the 
 person so receiving it is a holder for value and is protected. But not so when 
 a note is handed over to a creditor, with direction to collect it and retain the 
 surplus ; and afterwards the debt was settled. It is then reverted to the 
 former holder. Id. 
 
 3. Unless a note is taken in good faith for valuable consideration, the 
 holder is considered as being in privity with the endorsee. A meroliant 
 having purchased a note at an extraordinary rate of discount after he learned 
 
PROMISSORY NOTE. 781 
 
 that the payees, as merchants, had failed, and that the money was wanted to 
 pay preferred debts, is not a bond fide holder against the previous lien of a 
 judgment- creditor, partioulai-ly if the parties to the negotiation are relatives. 
 He should have inquired into the ciroumstauces of the holders. Cummings v. 
 Mead, 0. S. vi. 51. 
 
 -1. It is no defence to a suit by a holder against the maker of a promissory 
 note, that the plaintiff is not the owner of tlie note and gave no value for it, 
 and that when he toolt it he knew that it was an accommodation note, and 
 that defendant had received no value for it. Holmes v. Paul, 0. S. vi, 482. 
 
 5. There is no difference between business paper and accommodation paper 
 negotiated. Id. 
 
 tj. A promissory note procured by an incorporated company for its ac- 
 commodation under the terms that the company would provide for its pay- 
 ment at maturity, may lawfully be purchased or discounted by one who is a 
 director of the company and a member of its finance committee, though he 
 knew of these terms wlieu he took the note. Id. 
 
 7. Such a person (unless he was the agent of the company for the sale of 
 the note), takes a good title to it; and another person who is not the owner 
 of the note, but who received it without value from the owner, viz., from 
 the director, &c., may maintain an action on it against the maker. Id. 
 
 8. Payment of a promissory note by the maker before maturity does not 
 extinguish it as against a bond fide holder without notice. Runyan v. Reed, 
 0. S. vi. 305. 
 
 9. When a note has been paid by the maker before maturity, his endorse- 
 ment would be notice of th.at fact to the holder. Id. 
 
 10. But such endorsement is not itself evidence of payment. It is when 
 standing unexplained, evidence that the endorsement prior to the name of 
 the maker was for his accommodation. Id. 
 
 11. Where an instrument was drawn without containing in its bod'y the 
 usual words of negotiability, but on the face of the note was the phrase 
 " payable and negotiable at the Kensington Bank," it is not a negotiable note 
 nuless it is discounted at the bank where made payable. Raymond v. Middle- 
 ton ^ Co., 0. S. vi. 377. 
 
 12. The contract of endorsement considered. Id. 
 
 13. Fraud in transfer. Held, that in an action by an endorsee against the 
 maker of a promissory note, to which the general issue was pleaded, the 
 maker may show fraud in the transfer, to prove that such transfer was made 
 to defeat the creditors of the payee, and the payment of the money for which the 
 note was given by the payor in compliance with process of garnishment on an 
 attachment against the payee, is a satisfaction of the indebtedness there, if 
 such transfer was made to defraud creditors. Loveland v. Huber, 0. S. i. 698. 
 
 14. In a suit on a note received for services by "■ surgeon in setting a dis- 
 located arm, the defendant may off-set damages sustained, by reason of the 
 services being unskilfully performed, and recover a judgment for any balance 
 found due. Norton v. Winscott, 0. S. i. 698. 
 
 15. The payee of a promissory note, who transfers it for a valuable con- 
 sideration, though after its maturity, impliedly warrants it is not void for 
 usury. Baell v. Bisaell, Adm'r, 0. S. i. 411. 
 
 16. The ground of implied warranty either of title or quality, at common 
 law, is the presumed superior knowledge of the vendor. Id. 
 
 17. A., the payee of an overdue note, transferred it for a valuable con- 
 sideration, to D,, who sued on it; but the defence of usury being interposed 
 by the maker, the latter had judgment, with costs. D. then brought an action 
 against the administrator of A., for the amount paid on the sale of the note. 
 Held, that he was entitled to recover. Id. 
 
 18. Held, also, that he might have not only the defendant's but his own costs 
 in the prior action ; qusere, whether he was not entitled also to counsel fees 
 therein. Id. 
 
 19. A note which accompanies a mortgage is subsidiary to the mortgage, 
 and cannot be treated as an independent contract of itself. Baxter v. Roelofson, 
 O. S. viii. 477. 
 
 20. A defence valid on the ground of fraud as between mortgagor and 
 mortgagee will be valid as between the mortgagor who is the maker of nego- 
 tiable note secured by mortgage and an endorsee of such note, even though 
 the latter be a holder for value. Id. 
 
782 PROMISSOEY NOTE— PROOF OF FOREIGN LAW. 
 
 21. The removal of the maker and indoraer of a promissory note into 
 another jurisdiction after the execution of the instrument, will dispense with 
 the necessity of presentment and notice of non-payment. Becker v. Levy, 0. 
 S. ii. 444. 
 
 22. It seems that the indorsement of a note by one not a party to it, in the 
 absence of evidence of any particular intention, authorizes the payee to write 
 over his name any form of engagement he may see proper. Id. 
 
 23. Distinction between check and promissory note. Martin v. Bailey, 0. 
 S. iv. 632. 
 
 24. The second endorsee of a note, which is not negotiable, takes it subject 
 to the terms on which the first endorsee received it from the payee or first 
 endorser, who may show that his endorsement was without recourse, and 
 for the mere purpose of passing the title. Birdeback v. Wilkins, 0. S. ii. 188. 
 
 25. A formal assignment of a promissory note overdue is not equivalent to 
 an endorsement, and imports no sort of guaranty by the assignor. Nor will 
 the fact that the words " without recourse " were at first put into the assign- 
 ment and then struck out, alter the result. Lyons v. Divelbis, 0. S. ii. 188. 
 
 26. Foreign attachment as to maker, ttitoer v. ParisA, 0. S. i. 568. 
 
 27. Alteration of, voids it. Miller v. Gillelnnd, 0. S. i. 672. 
 
 28. One who entrusts his name in blank to another to procure a discount, 
 is liable to the full extent, &c. Fullerton v. Sturgex, 0. S. iv. 690. 
 
 29. A promissory note payable at a particular place is governed, as todays 
 of grace, by the law of the place. Russell v. Kitchen, 0. S. ii. 702. 
 
 30. Action by assignee of payee — what may be set-off by maker. Follett, 
 Adm'r v. Buyer, 0. S. iv. 630. 
 
 81. A note payable to bearer only is a valid note. Moody, Adm'r v. Threlkeld, 
 0. S. ii. 381. 
 
 32. A note issued with a blank for the payee's name may be filled up by 
 any bon& fide holder, with his own name as payee, and it is a good promis- 
 sory note as to him, from its date. Id. 
 
 33. The holder, after transfer, may sue in his own name. Smyth y. Garden, 
 O.S. i. 381. 
 
 34. Notice of protest when sent by mail, must be shown by plaintiff to have 
 been put in the mail at the proper time. Friend v. ^¥llkinson, 0. S. ii. 768. 
 
 35. Negotiability of, not destroyed by injunction against its negotiation. 
 Winston v. Westfeldt, 0. S. ii. 619, and see Lis pendens. 
 
 36. Promissory note given for purchase of R. R. bonds — defence to. See 
 Edwards v. Marcy, N. S. i. 248. 
 
 37. In an action upon a note given for the price of land, the defendant 
 cannot be allowed to prove, by way of recoupment in damages, that the 
 plaintiif made false representations as to the quality and productiveness of 
 the soil, and the number of acres contained within boundaries which were 
 truly pointed out, by which the defendant was deceived and thereby induced 
 to make the purchase. Gordon v. Parmelee, N. S. i. 1 78. 
 
 38. An instrument by which the makers promise to pay to the order of 
 the payees a specific sum " with current exchange on New York," is a nego- 
 tiable promissory note. Smith v. Kendall, 0. S. ix. 754. 
 
 39. A check, in order to avail the holder, must be presented, accepted, 
 and charged. National Bank v. Eliot Bank, 0. S. v. 711. 
 
 40. Action may be maintained against administrator on note in his bands, 
 due from his intestate, if he refuses to pay or deliver it. Prescott v. Ward, N. 
 S. V. 505. 
 
 41. Note, payable in Michigan, "with current exchange on New York," ia 
 a negotiable promissory note. Johnson v. Frisbie, N. S. vi. 631. 
 
 42. Instrument "payable out of my separate property and estate," is a 
 promissory note. Skillen v. Richmond, N. S. vii. 251. 
 
 43. A note payable on demand, in the hands of an innocent holder. Morey 
 V. Wakefield, N. S. viii. 510. 
 
 44. Whatever assignment of a note a payee may make, he may bring an 
 action on it in his own name while it is in his own hands. Richards v. Darst, 
 N. S. ix.711. 
 
 45. An instrument made out in the form of a bill crediting a laborer with $67, 
 "payable to bearer," is a negotiable note. Hussey v. Winslow, N. S. xi. 529. 
 
 PROOF OF FOREIGN LAW, &c. 
 
 1. A copy of the "code civil" of France, from the Library of Congress, 
 
PROOF OF FOREIGN LAW— PUBLIC LANDING. 783 
 
 received in exchange from the French government, and purporting to te 
 printed by authority, is sufficient evidence of the laws of France. Zolkaw- 
 sher's Adm'r v. Bomford, 0. S. i. 375. 
 
 2. A decree of the nobility of the government of Grodno, and a decree of 
 the Court of Kroburgh, in the province of Lithuania, properly authenticated, 
 were received in evidence, as competent to prove the pedigree of the heirs 
 of Kosciusko, they are judgments in rem, and evidence everywhere of the 
 facts adjudged. Id. 
 
 3. Leading article on the subject. 0. S. v. 321, and see James v. R. R. Co., 
 0. S. vi. 718, and Bonata v. WeUch, N. S. ii. 250. 
 
 PROPERTY. 
 
 Property in persons being repugnant to the constitution and laws of Illi- 
 nois, trover cannot be maintained for the recovery of a person, or for satis- 
 faction for the loss. Rodney v. Tlie Illinois Central R. R., 0. S. vi. 439. 
 
 PROSECUTION. 
 
 The law will permit a compromise of any offence though made the subject 
 of a criminal prosecution. Bowen v. Buck, 0. S. v. 420. 
 
 PROTECTION. 
 
 The husband will be entitled to the protection of the court, where the 
 wife's passions, from whatever cause, are so little under control that she is 
 in the habit of using personal violence to the husband, from which habit he 
 may be in danger of bodily injury, though no actual serious injury has been 
 inflicted. White v. White, 0. S. viii. 637. 
 
 PROVISIONAL COURT. See Louisiana. 
 
 PUBLICATION OF LAWS. 
 
 When required by the constitution of Wisconsin to be published, does notr 
 require those of a private nature to be published. Seeling v. The City of 
 Racine,. 0. S.viii. 603. 
 
 PUBLIC CORPORATIONS. * See Municipal Cokporations. 
 
 1. In respect to public corporations, which exist for public purposes alone,, 
 like counties, cities, and towns, the legislature, under proper limitations,, 
 have the right to restrain, modify, enlarge, or change them, providing, how- 
 ever, that property owned by such corporation shall be secured for the use 
 of those having an interest in it. Inhabitants of North Yarmouth -v. Shillings, 
 O. S. viii. 307. 
 
 2. If a town is divided, and a part of its territory, with the inhabitants 
 thereof, is incorporated into a new town, the old town will retain all the 
 property, and be responsible for the existing liabilities, unless there is some 
 legislative provision to the contrary. Id. 
 
 3. But, upon such division, the legislature having constitutional authority 
 to provide that the property, owned by the original town, shall be appro- 
 priated or held for the use and enjoyment of the inhabitants of both towns, 
 and to impose upon each town the payment of a. share of the corporate 
 debts. Id. 
 
 4. If, upon such division, the original town holds any property, such as 
 flats, sedge-banks, or fisheries in trust, for the use of all the inhabitants, the 
 legislature may provide that the original town shall still hold such property 
 in trust for the inhabitants of both towns. Id. 
 
 5. In regard to property so held in trust, vphether the legislature, by 
 dividing the town, without making any such provision, could deprive a part 
 of the inhabitants of their accustomed use of it. Qumre? Id. 
 
 PUBLIC DEBT. 
 
 Plaintiffs cannot complain that this act of assembly (authorizing a municipal 
 subscription to railroad stock) is unconstitutional, because it authorizes the 
 creation of a public debt, a portion of which they may be compelled to pay here- 
 after in the shape of taxes. Sharpless v. The Mayor of Philadelphia, 0. S. ii. 
 27, 85. 
 
 PUBLIC LANDING. 
 
 1. Where the owner of land has been dispossessed of land, the court charged 
 the jury that a party who claimed a prescriptive right to a publics landing 
 must have excluded the public and every member of it. Burrows v. Gallup, 
 N. S. vi. 84. 
 
784 PUBLIC LANDING— PUBLIC USE. 
 
 2. Highway laid out to navigable water may be regarded as presumably 
 intended for public landing. Burrows v. Gallup, N. S. vi. 84. 
 
 3. The right to use the river as a highway does not imply the right to use 
 the banks for the purposes of a landing, to receive and discharge freight and 
 passengers. Bainbridge v. Sherlock, N. S. vii. 720. 
 
 PUBLIC LANDS. 
 
 1. In California, as to right to mine. Tariar v. Mining Co., 0. S. v. 188. 
 
 2. Where a settler on public lands, entitled to a preemption, secures a capi- 
 talist to pay the purchase-money into the land office, and allows him to take 
 the receiver's receipt in his own name as security for the repayment of the 
 money, this is an equitable mortgage of the land. Wright v. Shumway, 0. S. ii. 20. 
 
 3. A purchaser of government lands acquires by his patent a title to nil 
 the land embraced in the boundaries of the tract. Sawyer v. Cox, N. S. xiv. 60. 
 
 4. The boundaries control the notes and plat of the survey. Id. 
 
 PUBLIC OFFICER. 
 
 1. Not liable where property attached by him is stolen, if he has taken due 
 care. Dorman v. Kane, N. S. ii. 444. 
 
 2. An officer of customs, who iinds smuggled goods, cannot maintain an 
 action for a reward offered by the owners of the vessel for such discovery. 
 Davies v. Bums, N. S. ii. 768. 
 
 3. Evidence in actions against. Cotton v. Beardsley, N. S. ii. 560. 
 
 4. Bonds. Waiver of irregularities. — Bonds not void by being not in the 
 strict form prescribed by statute. Morton v. Campbell, N. S. ii. 185. 
 
 5. Salary of, see Claims. 
 
 6. A public officer, whose duty it is to arrest all persons charged with or 
 suspected of the commission of crime, cannot claim any other orfurther i-emu- 
 neration for his services than the fees allowed by law. Rea v. Smith, 0. S. v. 98. 
 
 7. Whenever an officer makes an arrest, he is supposed to be acting in his 
 official capacity ; and where he performed the duty of sheriif, believing he 
 was acting within the authority derived from law, the court will not allow 
 him to change the relation and assume that of a-private individual. Id. 
 
 8. A sheriff, or any other ministerial officer, may arrest fugitives from the 
 justice of any other state of the Union, and detain them for a reasonable 
 time, until the requisition of the executive can be made. Id. 
 
 9. A reward offered may be apportioned upon equitable principles among 
 several parties, as the court may direct. Id. 
 
 PUBLIC POLICY. 
 
 1. An agreement by vendors of stock that new directors, nominated by the 
 purchaser, shall be substituted for the present board, is contrary to public 
 policy. Fremont v. Stone, N. S. iv. 183. 
 
 2. After the contract of partnership has been carried out, the partner 
 holding the profits cannot refuse account because the operations were against 
 public policy. Brooks v. Martin, N. S. iv. 574. 
 
 3. A contract by the children to release all their right to their father's 
 land to one, is not contrary to public policy. Walker v. Walker, N. S. xi. 196. 
 
 4. A contract for one physician to practice and prescribe in the name of 
 another, is contrary to public policy. Jerome v. Bigelow, N. S. xiv. 581. 
 
 5. A contract to forbear purchasing an interest in certain lands, is not 
 void as against public policy. Morrison v. Darling, N. S. xiv. 754. 
 
 6. A condition exempting a telegraph company from liability for any cause, 
 is against public policy and void. Bartlett v. West'n Tel. Co., N. S. xiv. 199. 
 
 PUBLIC RIGHTS. 
 
 Bights in individuals subordinate to and controlled by. Kearns v. Cord- 
 liainer's Company, 0. S. viii. 250. 
 
 PUBLIC USE. See Eoahs and Streets, Dedication. 
 
 1. The right to take private property for public use. See Con.stitutionai 
 Law. 
 
 2. Where the canal commissioners have a lot for a lock-house, and have 
 erected a house upon it, the former owner may not resume the possession 
 for the purpose of testing the regularity of the appropriation to public use. 
 Ligaty. The Commonwealth, 0. S, i. 120. 
 
 3. A canal, through a marsh in which a stream is lost, cut by private in- 
 dividuals through the land of one of them for the purpose of affording floatage 
 for timber and lumber through the same in connection with the stream — 
 
PUBLIC USE -QUO WAREANTO. 785 
 
 there being no evidence that the waters of the stream ever ran along its line, 
 or that it was the improvement of au existing water-channel — is a private 
 way, and the public are not entitled to use it, unless it be dedicated to their 
 use. Wiird-v.Wainer, 0. S. ix. 114. 
 
 PUBLIC WORK. 
 
 1. A mere contractor for a public work is not liable to a third person for 
 damages occasioned by the non-performance of his contract. Fish et al. v. 
 Dodge, N. S. ii. 507. 
 
 2. Private promise to pay for performance of work in which the public 
 generally were as much interested as the promissor, will support assumpsit. 
 Smith V. McKenna, N. S. vii. 120. 
 
 3. Advertisement inviting proposals to bid for construction of works does 
 not create any obligation to award a contract. People v. Croton Aqueduct 
 Board, N. S. vii. 509. 
 
 4. Legislature may authorize construction of public works, without com- 
 pensation to property injured if not actually taken. Arnold \. B. R. Co., N. 
 S. vii. 380. 
 
 PURCHASE-MONEY. 
 
 The vendee of a lot of ground under parol contract, entered into posses- 
 sion before payment of the purchase-money, and erected a building. Con- 
 veyance afterwards made to an equitable owner and mortgage by him for 
 purchase-money — lien of said mortgage. Campbell's Appeal, 0. S. vi. 757. 
 
 PURCHASER. 
 
 1. Execution-creditor not a purchaser until he buys in the property. Co- 
 lumbia Bank V. Jacobs, N. S. ii. 126. 
 
 2. Person in possession of land under contract to purchase may maintain 
 action for injury to his interest. Honsee v. Hammond, N. S. ii. 764. 
 
 3. It is settled there can be no lien by the general maritime law for mate- 
 rials and supplies furnished a vessel in her home port. Sill ^ Conn v. The 
 Golden Gate, 0. S. v. 142. 
 
 4. Meaning of the word "purchase," and the senses in which it is used in 
 the law of realty. Durando v. Durando, 0. S. ix. 630. 
 
 QUI TAM ACTION. 
 
 In a qui tam action against the creditor in a fraudulent judgment, it is nec- 
 essary that the intent of both parties to the transaction should be ultimately 
 to defraud creditors. Barnam q. t. v. Hackett, N. S. iv. 56. 
 
 QUO WARRANTO. See Infobmation. 
 
 1. The common law remedy of quo warranto is adopted in Texas. Texas v. 
 South Padfic Railroad, 0. S. viii. 78. 
 
 2. The district attorney, who is a state officer, and charged with the duty 
 of prosecuting all actions in which the state is interested, is bound to insti- 
 tute a quo warranto for the forfeiture of a charter of a corporation, when the 
 law has declared that upon the happening of certain events, or the omission 
 of certain things, cause of forfeiture has arisen, and the franchise ought to 
 be reclaimed by the sovereign. / Id. 
 
 3., The crown cannot grant a charter not open to the right of the subject 
 to have it declared forfeited on breach of a condition in which he has an in- 
 terest, or through misuser or abuse. Eastern Archipelago Co. v. The Queen, 0. 
 S. iii. 123. 
 
 4. Must set forth all the facts which show that the relator is entitled to the 
 office. State ex rel. Kempf v. Boal, N. S. x. 132. 
 
 5. Is the proper remedy against persons usurping the office of trustees of 
 a chartered church. Com. ex rel. Gordon v. Graham, N. S. x. 413. 
 
 6. A motion to quash must be for defects in the suggestion itself. Id. 
 
 7. The judgment on a quo warranto, at the suit of the attorney-general, 
 acting for the state, settles tlie title as between the state and the defendant, 
 but does not fix the rights of another person claiming to be the rightful oflS- 
 cer. Hunter v. Chandler, N. S. i. 440. 
 
 8. If proceedings on such quo warranto are commenced during the incum- 
 bency of defendant, his subsequent death or resignation, or the expiration. 
 
 50 
 
786 QUO WAEEANTO— EAILEOAD COMPANY. 
 
 of the term of office, will not prevent tte information from being prosecuted 
 to judgment. Hunter v. Chandler, N. S. x. 440. 
 
 9. An information in the nature of a writ of quo warranto is essentially a 
 civil proceeding. State ex rel. Bornefeld v. Kupferle, N. S. ix. 196. 
 
 10. The acts of a private corporation are to be presumed regular until the 
 contrary appears. Id. 
 
 11. Must be brought during the official lifetime of the officer. Officer de 
 facto will be considered also de jure as to all official acts, unless judicially re- 
 moved before expiration of term. Com. v. Smith, N. S. iii, 574. 
 
 12. Termination of office during pendency of. People v. Hartioell, N. S. iii. 
 764. 
 
 13. Is not a writ of right. Com. ex rel. McLaughlin v. Cluley, N. S. viii. 62. 
 
 14. The enactment that writs of quo warranto may be issued on the sugges- 
 tion of any person desiring to prosecute the same, means any person hHving 
 an interest to be affected. Id. 
 
 15. Attorney-general has control of proceedings to try right to a public 
 office. Relator and defendant cannot stipulate about facts. People ex rel.. 
 Chapman v. Pratt, N. S. vi. 319. 
 
 16. Persons claiming different offices in church cannot join as relators in 
 one proceeding against adverse claimants. Peoples. Demill, N. S. vi. 319. 
 
 17. What an information filed to try right to an office in a corporation 
 should set forth. Id. 
 
 18. Venue of, to try right to a county office. People v. Cicolte, N. S. vi. 639. 
 
 19. Will not issue concerning a private office. Ex parte Smith, N. S. iv. 317. 
 
 20. Quo warranto after entry is proper remedy against action of officers il- 
 legally appointed. Updegraph v. Crans, N. S. iv. 256. 
 
 RAILROAD COMPANY. 
 
 I. Powers, DtmEs, and Liabilities Generally. 
 
 1. Rights and liabilities of, subject discussed, 0. S. viii. 129, 257. 
 
 2. A county has no power to subscribe for railroad stools. The powers 
 and liabilities of counties relating to bonds issued for such purposes fully 
 considered and cases cited. Stokes v. The County, 0. S. ix. 458. 
 
 3. Power of municipal corporation to subscribe to stock of a railroad com- 
 pany. See Sharplesa v. Oily, 0. S. ii. 29. 
 
 4. The law implies in the contract of carrying passengers by railroad com- 
 panies, that they shall provide a safe and sufficient road and oars, competent 
 and careful conductors and hands, and safe and convenient egress, and re- 
 gress from the line of their road. Penna. R. R. v. Zebe, 0. S. viii. 27. 
 
 6. Regulation of inter-state traffic on railways by Congress, subject dis- 
 cussed, N. 9. xiii. 1. 
 
 6. Where goods are delivered to a carrier, and they are not transported 
 according to his undertaking, but are injured or destroyed, the rule of dam- 
 ages is the value of the goods at the place to which they were to be carried, 
 less the freight. Mich. N. ^ S. R. R. Co. v. Caster, 0. S. viii. 420. 
 
 7. A railroad company, in making contracts as common carriers, are not 
 restricted to the line of transit described in their act of corporation. Texax 
 V. South Pacific R. R. Co., 0. S. viii. 76. 
 
 8. The rights of the public in a highway are equal, but each person must 
 use it with a just regard to the rights of others, and a heavily-loaded team 
 moving slowly in n, public street, has no right to obstruct a horse railroad. 
 Commonwmltfi v. Temple, 0. S. viii. 678. 
 
 9. Plaintiff, being invited by the conductor, got into the caboose of a coal 
 train, and rode without paying any fare. An accident occurred through the 
 negligence of the conductor, whereby plaintiff was injured. Held, the rela- 
 tion of carrier and passenger had not been created, and the company was 
 not liable. JEaton v. D.^L.W. R. R. Co., N. S. xiii. 665. 
 
 10. Where a railroad company has divided its business between passenger 
 and freight trains, th« conductor of the latter, though called by the same 
 name, has not the powers of a conductor in regard to passengers. Notice of 
 his want of power will be implied from the nature and apparent division of 
 the business, and a person claiming to be a passenger on such train has the 
 burden of proof of circumstances to except him from the general presump- 
 tion. Per DwiOHT, Commissioner. Id. 
 
EAILEOAD COMPANY. 787 
 
 11. A consignee of lumber, who tenders the railroad carrier the full rates 
 chargeable by law for the entire distance carried, is entitled to possession of 
 the lumber. Ackley et al. t. O. M. ^ St. P. Railway, N. S. xiv. 648. 
 
 12. And this, notwithstanding the last of two connecting companies, had 
 paid the full amount tendered to the original carrier. Id. 
 
 13. When the full rates allowed by law are collected by one of two con- 
 necting companies, the sum should be equitably divided between them. Id. 
 
 14. The plaintiff was driving a horse, known to be afraid of locomotives, 
 upon u road parallel and contiguous to defendants' railroad. The engineer 
 of an approaching train blew the whistle of the locomotive once or twice 
 (there being conflicting evidence on this point), which caused the horse to 
 run off, and the plaintiff was thereby thrown from the vehicle and injured. 
 Held, that the question whether the use of the whistle the second time was 
 negligence was for the jury, but not whether any use thereof was such. The 
 nature of the place and the habit of the company were conclusive that the 
 whistle should be blown once, and the jury should not have been permitted 
 to say that this was negligence. Held, further, that the use of a horse known 
 to be afraid of locomotives, in the vicinity of a railroad, was contributory 
 negligence. P., ^Y. ^ B. Railroad Co. v. Stinger, N. S. xiv. 659. 
 
 15. Liability for negligence, subject discussed, N. S. vii. 449. 
 
 16. Railway management and responsibility, subject discussed, N. S. vii. 577. 
 
 17. A temporary track, owned by the contractors who built a railroad, is 
 personal property, and may be seized and sold on execution. Fifield v. Maine 
 Central R. R., N. S. xiv. 200. 
 
 18. An act faxing all railroads "doing business in the state," applies to a 
 railroad Incorporated by another state. Erie Railway Co. v. Pennsylvania, N. 
 S. xiv. 527. 
 
 19. Railroad companies are incorporated, not for the promotion of mere 
 private ends, but in view of the public good they may subserve. Marsh v. 
 Fairburg R. R. Co., N. S. xiv. 561. 
 
 20. Though railroad trains may be run at a high rate of speed to reach 
 their greatest utility, it must be moderated in towns and cities. P. ^ R. 
 Railroad Co. v. Long, N. S. xiv. 198. 
 
 21. It is negligence for parents to permit a child of tender years to wander 
 on a street where there are tracks. Id. 
 
 22. If the track of a railroad be used by persons for their own purposes, 
 no right of way over its ground as a public thoroughfare for people to walk 
 upon will be acquired, merely because the company do not see fit to enforce 
 its right, and put people off its premises. Neither will the company be 
 bound to protect or provide safeguards for persons so using its grounds for 
 their own convenience. Illinois Central Railroad v. Godfrey, N. S. xiv. 290. 
 
 23. Where the plaintiff is himself in the wrong, or not in the exercise 
 of a legal right, or is at the time enjoying a privilege or favor granted with- 
 out compensation or benefit to the party granting it, and of whose careless- 
 ness complaint is made, he, the plaintiff, must use extraordinary care before 
 he can complain of the negligence of another. Id. 
 
 24. The legislature, in requiring the viewers to take info consideration the 
 advantages and disadvantages resulting from any public improvement, as a 
 railroad, did not authorize them to enter into remote and contingent future 
 and speculative damage; full compensation, according to the best estimates 
 that can be obtained, would seem to be the true rule. Stmbury and Erie R. R. 
 V. Hummell, 0. S. y. 244. 
 
 25. Power to mortgage its franchise. Note to Morrill v. Noyes, N. S. iii. 30. 
 
 26. Power to discriminate between "local" and other freight. Twellsy. 
 Fenn. Railroad Co., N. S. iii. 728. 
 
 27. While organizing may be a corporation de facto as against a subscriber 
 to stock, though it could not stand against the people. Buffalo, S(c., Railroad 
 Co. V. Cary, N. S. iii. 497. 
 
 28. Act of legislature authorizing consolidation of connecting roads. Effect 
 on contracts. Clearwater v. Meredith, N. S. iii. 695. 
 
 29. Title of railroad company to the track — powers of legislature over it 
 — when track may be taken for a highway. Albany Northern Railroad Co. v. 
 Brownell et al., N. S. ii. 58. 
 
 30. Liability of track to be sold for taxes, where, by law, it is personal 
 property. Maus v. Logansport, S^c, Railroad Co., N. S. ii. 118. 
 
788 . EAILEOAD COMPANY. 
 
 31. In cities — mjiy act under authority of the legislature, irrespective of 
 municipal control. People et al. v. Kerr et at., N. S. ii. 377. 
 
 32. Under the New York statute, railroad companies must not only erect, 
 but maintain, fences, &c. McDowell v. New York Central Railroad Co., N. S. 
 ii. 186. 
 
 33. Change of cars — duties of company and of passengers.— evidence of 
 regulations of the company. Barker et al. v. New York Central Railroad Co., 
 N. S. ii. 122. 
 
 34. Conditional subscription to railroad company — defence to action for 
 instalments on stock. Miller v. R. R. Co., N. S. i. 694. 
 
 35. A matter for national supervision, subject discussed, N. S. vi. 193. 
 
 36. Where title to land, upon which railroad has been located, passes to 
 company, before payment of damuges. Knapp v. MeAuley, N. S. vi. 573. 
 
 37. A railroad company is liable to a hackman for an injury received from 
 a defect in tlieir platform, while he was carrying a passenger to the depot. 
 Tobin V. Portland R. R. Co., N. S. xi. 597. 
 
 38. And this, notwithstanding the platform was within the limits of a high- 
 way. Id. 
 
 39. The general railroad laws of New York are to be construed harmoni- 
 ously as regards their provisions, and strictly as to the rights of parties. 
 Matter of N. Y. ^ B. R. R. Co., N. S. xi. 722. 
 
 40. By conforming to the provisions of those laws, corporations acquire a 
 title in fee to the land necessary for their purposes. Id. 
 
 41. An occupant of land cannot be deprived of the actual notice required 
 by the legislature to be given to him of the proposed route. Id. 
 
 42. Connecting lines of railroad may lawfully agree to divide the fares 
 unequally. Sussex Railroad v. Morris and Essex, N. S. viii. 126, 
 
 43. A contract between railroad companies using the same gauge, to trans- 
 port passengers and freight continuously over both lines, does not imply a 
 contract on the part of either company that it will not change the gauge of 
 its road. Id. 
 
 44. A railroad company, like any other common carrier, must serve all 
 persons alike, so far as equally within its power. It is the duty of such com- 
 pany, therefore, to deliver grain in bulk, in the regular course of business, 
 to any elevator along its line, as directed in the consignment. It is no excuse 
 that the company has made contracts with the owners of certain elevators to 
 deliver exclusively to them. Railway Co. v. People, N. S. x. 585. 
 
 45. But a railroad company cannot be made to deliver beyond its own line, 
 even though there is a connecting track between its terminus and the place 
 of consignment, over which it has a right to run its cars, on payment of cer- 
 tain track fees. Id. 
 
 46. Must receive goods as a common carrier, but may make special con- 
 tract. Acceptance of bill of lading with conditions, is an agreement to the 
 conditions. 3IcMillan v. R. R. Co., N. S. vii. 191. 
 
 47. Interference with rights in property and restoration to same condition 
 again. Arnold y. R. R. Co., N. S. vii. 380. 
 
 48. Wood, timber, &c., distributed along the line for present use are part 
 of it for purposes of taxation. R. R. Co. v. Prescott, N. S. vii. 255. 
 
 49. Where the common council of a city enters into a specific agreement 
 with a street railway company, requiring no further license, and resei'ving 
 no right to require one, they are concluded by the contract, and cannot 
 afterwards pass an ordinance requiring the taking out of a license, and the 
 payment of a fee by the company to entitle it to run its cars. Mayor, See., of 
 N. Y. V. Second Av. R. R. Co., N. S. i. 63. 
 
 50. It is not unlawful, nor against public policy, for a railroad company 
 to convey passengers by stage to and from one of its stations and an adja- 
 cent village, in connection with and as a part of its business of transporting 
 passengers upon its road ; nor is a contract made by it thus to carry a pas- 
 senger ultra vires. Buffit v. Troy ^ Boston R. R. Co., N. S. i. 768. 
 
 51. The plaintiff mistook a door at a railway station, and passing through 
 it, instead of another, fell down a flight of steps and was hurt. There was a 
 light over the door which he intended to pass through, and a printed notice 
 showing the purpose of it. There was also an inscription over the other, 
 but no light. The defendant could not read. There was no evidence that 
 
RAILROAD COMPANY. 789 
 
 the steps were more than ordinary dangerous. IlehJ, that the railway com- 
 pany were not liable. Tooneyv. The London, Brighlon ^ South Coast Railway 
 Co., 0. S. vi. 316. 
 
 5i. At the intersection -of a railway and turnpike, the traveller by the 
 highway has a right to be within the rails long enough to cross them ; but he 
 is bound to look out for trains, and must not rush heedlessly, nor remain 
 unnecessarily, on a spot where the law allows engines to be propelled. Reeves 
 T. The Delaware R. R., 0. S. vi. 5t)5. 
 
 53. A railway company, in the prosecution of its lawful business, is enti- 
 tled to the same protection and subject to the same responsibilities as a natu- 
 ral person. The Richmond ^~ Petersburg R. R. Co. v. Jones, 0. S. vi. 846. 
 
 54. The want of skill and caution in the exercise of its privileges is the 
 true ground upon which to base any right to recover damiiges for an injury 
 done to another by a railway company while engaged in its lawful business. 
 Id. 
 
 55. An act authorizing the people of a town to decide whether they will 
 subscribe its bonds in aid of a railroad is not in violation of the constitution 
 of New York, and is binding. Town of Queensburg v. Culver, N. S. xiii 652. 
 
 56. An act prohibiting a railroad company from charging at a greater rate 
 per mile for carriage of passengers or freight from place to place within a 
 state than for similar carriage beyond 'the state is unconstitutional. P., W. ^ 
 B. R. R. Go. v. Bower, N. S. xiii. 174. 
 
 57. The charter of the defendants contained the following clause : " The 
 president and directors of said company be, and they are hereby authorized 
 and invested, with all the rights and powers necessary and expedient to sur- 
 vey, lay out, and construct a railroad from sotne suitable point in the town- 
 ship of Orange, in the county of Essex, to some suitable point in Orange 
 street, or some street north of the said street, or south of Market street, in 
 the city of Newark." Held, that this enactment relates not to the route, but 
 to the termination of the road, and that thereby the road of the company 
 was not excluded from being located in or through Market street. McFar- 
 land^. The Orange Horse- Car R. R. Co.. N. S. i. 696. 
 
 58. If railroad has been found a nuisance plaintiff may have injunction, 
 though not damaged. People v. R. R. Co., N. S. v. 571. 
 
 59. The rule that the master is not responsible to one of his servants for 
 an injury inflicted through the negligence of a fellow-servant is not adopted, 
 to the full extent of the English decisions, in the state of Kentucky. R. R. 
 Co. V. Collim, N. S. v. 265. 
 
 60. Railroad companies are incorporated by authority of law, not for the 
 promotion of mere private ends ; but in view of the public good theysub- 
 serve. Marsh v. P. P. ^ N. W. Railway Co., N. S. xii. 390. 
 
 61. The specific execution of a contract in equity is a matter not of abso- 
 lute right, but of sound discretion in the court; and in deciding whether spe- 
 cific performance should be enforced against a railway company, regard must 
 be had to the interests of the public. Id. 
 
 62. The location of the depot has much to do with the accommodation of 
 the public, and a court of equity will not compel a railroad company to per- 
 manently locate its depot at a particular spot in order to subserve the pri- 
 vate advantage of an individual. Id. 
 
 63. Fare of a passenger on a railroad is a debt, within the Acts of Con- 
 gress, called the Legal Tender Acts. Levns v. R. R. Co., N. S. vi. 703. 
 
 64. If servant of a railway corporation, having charge of passenger tickets 
 once sold and taken up, fraudulently resells same, it is larceny thereof. 
 Eaton V. Farmer, N. S. vi. 256. 
 
 65. A foreign corporation, having no charter from the state of Ohio, can- 
 not acquire a right to use and operate such railroad within that state. 0. 
 ^ M. R. R. Co. v. /. ^ G. R. R. Co., N. S. v. 733. 
 
 66. Holder of coupon payable to bearer may recover amount with exchange 
 and interest. Gelpcke v. Dubuque, N. S. iii. 629. 
 
 67. Authority to receive payment implies authority to ceceive it in what- 
 ever was regarded as money at the time and place of payment. Ward v. 
 Smith, N. S. viii. 354. 
 
 68. The holder of a railway passenger ticket is only entitled to passage 
 ■with such personal baggage as he carries with him at the time. Wilson v. 
 Railway Co., N. S. viii. 398. 
 
790 EAILEOAD COMPANY. 
 
 69. The sale of a railroad, with its franchises and rolling stock, under a 
 decree of foreclosure, for u, price far below its value, will be set aside as u 
 fraud on creditors. Drury v. Gross, N. S. viii. 248, 
 
 70. Railroad company purchased lands in fee and then abandoned for 
 railroad purposes, the land did not revert. Pojre v. Heineberg, N. S. vii. 697. 
 
 71. Trustees of railroad company insuring all property belonging to said 
 company, cover a dredge-boat belonging to company attached to wharf at 
 railroad terminus. FarmeTs', ^c, Co. v. Ins. Co., N. S. vii. 763. 
 
 72. A railroad corporation is bound, absolutely and irrespective of negli- 
 gence, to provide road-worthy vehicles, and is liable for injuries to a passen- 
 ger caused by a crack in the iron axle of a car, although the defect could 
 not have been discovered by any practical mode of examination. Aldtn v. 
 The New York Central R. R. Co., N. S. iii. 498. 
 
 73. Railroad fare, even when demanded in advance, is so far a debt that it 
 is payable in legal-tender notes. Lewis v. R. R. Co., N. S. vii. 511. 
 
 74. Where the charter of a R. R. Co. fixes the amount of its capital stock, 
 the directors could not call for payment on the subscriptions until the entire 
 amount of stock had been subscribed. P. ^ R. J. Railway Co. v Preston, N. S. 
 xii. 242. 
 
 75. The consolidation of the stock of a railroad company created by the 
 laws of Wisconsin, with that of one created by the laws of Illinois, does not 
 constitute the corporations thus consolidating, one corporation of both states 
 or of either. Racine S; M. R. R. v. Farmers' Loan and Trust Co., N. S. ix. 260. 
 
 76. Taxation of inter-state travel, subject discussed. N. S. i. 417. 
 
 77. It is not the absolute duty of a railroad company to furnish a safe en- 
 gine. Railroad v. Thomas, N. S. viii. 154. 
 
 78. Cannot mortgage its franchise without further authority than act of 
 incorporation. Commth. v. Smith, N. S. v. 574. 
 
 79. Power to issue bonds. Id. 
 
 80. Second mortgagee may take advantage of invalidity of first mortgage- 
 bonds. Id. 
 
 81. But cannot maintain bill to cancel first mortgage. Id. 
 
 82. Party not complying with contract for purchase of road and organiza- 
 tion of new company, cannot claim any benefits under it. Carpenter v. Catlin, 
 N. S. V. 248. 
 
 83. Where a railroad company authorized its president to issue bonds se- 
 cured by a mortgage on the road and its franchises, and he issued the bonds 
 signed by his own name only. Held, the bonds were not the bonds of the 
 company, but would operate as an equitable mortgage. Miller et al. y. Rut- 
 land R. R. Co., N. S. iii. 616. 
 
 84. Loans of railroad corporations are subject, in Pennsylvania, to a three- 
 mill tax upon the principal of the loans, though they be owned by a citizen 
 of another state. Maltby v. R. R. Co., N. S. v. 479. 
 
 85. It is the duty of railroad companies to use upon their trains all im- 
 provements in machinery, or in construction of cars commonly used by other 
 companies, and failure to do so is negligence for which they are liable. Cos- 
 iello V. S. ^ B. Railroad Co., N. S. vii. 666. 
 
 86. If they are obliged to have some brake, the public safety requires that 
 it should be the best in use. Id. 
 
 87. Railroad companies must run at such a" moderate rate of speed through 
 cities, that by the use of brakes the train may be speedily stopped. Id. 
 
 88. It is erroneous to charge the jury that a, child who is not sui juris 
 is bound to exercise the same degree of caution in crossing a track as an 
 adult. Id. 
 
 89. A railroad company not being in fault as to the quality or character 
 of its equipments ; the special risks incident to property on account of prox- 
 imity to the trains, must be borne by those placing themselves in such locali- 
 ties. Michigan Central R. v. Anderson, N. S. x. 477. 
 
 II. Or THE Chabteb. 
 
 90. Forfeiture of charter for non-user of road — mode of enforcing the 
 penalty in New York. People v. Albany and Vermont Railroad Co., N. S. ii. 121. 
 
 91. The obtaining of a charter does not impose any positive obligation to 
 build a road, or to complete the entire route. People v. Albany and Vermont 
 Railroad Co., N. S. ii. 246. 
 
RAILROAD COMPANY. 791 
 
 92. Of the right of abandonment, and of the remedy to prevent abandon- 
 ment. People V. Albany and Vermont Railroad Co., N. S. ii. 246. 
 
 93. A charter fixing the terminus of a road at or near a certain point gives 
 the company a large discretion, which will only be interfered with where it 
 has clearly exceeded its limit-, or acted in bad faith. Fall River Iron Works 
 Go. V. Old Colony, ^c. Railroad Co., N. S. ii. 69H. 
 
 94. Unrestricted grant of authority to build a railroad carries with it the 
 right to cross a navigable stream. Id. 
 
 95. As to right to survey the route by a railroad company, where there 
 are two companies having a charter, the right attaches to the company which 
 first actually surveys, &o. R. R. Co. v. Blair, 0. S. v. 60. 
 
 96. Under the provisions of the charter in question, the court will not set 
 aside an assessment of damages upon the sole ground that the court differed 
 from the jury in an estimation of the amount. Philadelphia, Baltimore and 
 Wilmington Railroad v. Gessner, 0. S. i. 250. 
 
 97. A charter granted by two states to a company to construct a railroad 
 is not only a contract with the company, but a compact between the states. 
 The Cleveland and Pittsburg Railroad Co. v. Steer, N. S. viii. 63. 
 
 III. Purchase of, and Damaqes fok takinJ Lanus. 
 
 98. The power to purchase lands conferred upon a railroad company by 
 the Act of February, 1848, of Ohio, is not limited to the acquisition of such 
 as are necessary for operating the road. Walsh v. Burton, N. S. xiii. 654. 
 
 99. If the company abuses its power still, after resale and conveyance, 
 the title of the vendee is indefeasible. Id. 
 
 100. A mortgage on the road, " whether made or to be made," is not a lieu 
 upon real estate of the|company which has not been used for operating the 
 road. Id. 
 
 101. Right of railroad company to appropriate lands depends in Ohio on 
 the sufficiency and legal validity of the certificate and public record. R. R. 
 Co. V. Sullivanl, 0. S. iv. 700. 
 
 102. A railway company is a purchaser for a valuable consideration of the 
 exclusive use of the land, over which the track is laid, a^ an incorporeal 
 hereditament, and may use thereon the greatest allowable rate of speed with- 
 out Interference from strangers. N. Y. S; Erie R. R. v. Skinner, 0. S. i. 97. 
 
 103. On application for commissioners to estimate damages for land taken 
 by a railroad, the only inquiry is, has applicant a primd, facie right. Dela- 
 ware, L. ^W. Railroad v. Hudson Tunnel Railroad, N. S. xiv. 703. 
 
 104. For construction of a railroad through a farm the measure of damages 
 is the market value of the land taken. E. Penn. R. R. Co. v. Hattenatine, N. 
 S. iv. 184. 
 
 105. If a change in the amount of damage done to land taken by railroad 
 occurs after a report of the commissioners, equity will relieve, as there is no 
 remedy at law. Carpenter v. Easton ^ Amboy R. R., N. S. xiii. 328. 
 
 106. Owner of land taken by railroad must pursue the statutory remedy 
 for damages, and not the common law remedy. Ilueston v. R. R. Co., 0. S. iv. 
 636. 
 
 107. Board of Appraisers for land taken for railroad, the benefits received 
 are to be deducted from the damages. R. R, Co. v. Simpson, 0. S. iv, 696. 
 
 108. Assessment of damages for land taken for railroad. Bird v. R. R. Co., 
 0. S. iv. 222. 
 
 109. Injunction to restrain company for deviating from the line prescribed 
 by the Act, &c. Id. 
 
 110. The right of a railroad company to the free, exclusive, and unmo- 
 lested use of its railroad track, is nothing more than the right of every land 
 proprietor in the actual use and occupancy of his lands, and does not ex- 
 empt the company from the duty enjoined by law upon every person so to 
 use his own property as not to do any unnecessary injury to another. Ker- 
 whaker v. The Cleveland, Columbus and Cincinnati R. R. Co., 0. S. iii. 341. 
 
 111. Municipal corporation having right to purchase railway, cannot main- 
 tain bill to increase fares, Cambridge v. Railroad Co., N. S. v. 317. 
 
 112. Opinion of witness no evidence of amount of damages sustained by laud- 
 holder for land taken by the company. R. R. Co. v. Campbell, 0. S. iv. 630. 
 
 113. The land which is taken under the right of eminent domain which 
 exists in a state, for the use of a railroad, becomes so far the property of the 
 
792 EAILROAD COMPANY. 
 
 railroad corporation, that their right is exclusive in its use and possession 
 during the existence of the easement. Murd y. Rutland E. R. Co., 0. S. ii. 
 232. 
 IV. How FAE. Liable fok Damages resulting ekom Unskiledl Cohstruotion of 
 Egad, and from Fire from Engines. 
 
 114. When not liable for damage to land by construction of an embank- 
 ment. Clark T. Railroad Co., N. S. v. 447. 
 
 115. Railroad companies are required to use the utmost human sagacity 
 and foresight in the construction of roads, to prevent accidents. Union Pa- 
 cific R. R. V. Hand, N. S. x. 478. 
 
 116. A defect in the track anywhere, may be shown if it contributed to the 
 injury. Id. 
 
 117. Railroad company bound to operate its road so as to cause the least 
 danger to buildings on the line, and the fact that the building was erected 
 after the road does not alter the case. King v. R. R. Co., N. S. vii. 764. 
 
 ( 118. Authorized by law to obstruct a stream for the purpose of constructing 
 a work of public utility, are liable for want of care and skill in so arranging 
 the work as to avoid any ganger reasonably to be anticipated from the 
 habits of the stream and its liability to floods. Bellinger v. The N. Y. Central 
 R., N. S. i. 59. 
 
 119. In an action against a railroad for setting fire to plaintiff's timber, 
 under the Code of Maryland, plaintiff may show that defendant's engines had 
 occasioned frequent fires by scattering sparks, thereby proving negligence in 
 their construction and management. Annapolis ^ li. Railroad Co. v. Gantt, 
 N. S. xiii. 781. 
 
 120. The onus is on the defendant to show that it has used reasonable care 
 to prevent injury from fire. Id. 
 
 121. The liability of railroads under the code, for injuries from fires, ex- 
 tends to all the near and natural consequences of their wrongful act, but not 
 to remote nor incidental. Id. 
 
 122. A railroad company is responsible for injury done by fire under the 
 Code of Maryland, whether the same is caused by sparks or by coals thrown 
 from the engine by its employees. B. ^ 0. R. R. Co. v. Dorsey, N. S. xii. 735. 
 
 123. No legal presumption of negligence when crops fired by eflgine. 
 Defendant's want of care must be shown as a matter of fact. Smith v. Rail- 
 road Co., N. S. vi. 62. 
 
 124. Where defendant's negligence is so gross as to show a disregard of 
 consequences, or wilfulness to do injury, plaintiff may recover, though m 
 trespasser. R. R. Co. v. Adams, N. S. vi. 718. 
 
 125. Omission by railroad company to give signals required by statute, near 
 highway crossing, is a breach of duty. Ernst v. Railroad Co., N. S. vi. 253. 
 
 126. Is an assurance by company to traveller that no engine is approach- 
 ing. Id. 
 
 127. When passer-by is guilty of culpable negligence, and forfeits claim to 
 redress. Id. 
 
 128. How far bound to stop and look up and down track. Id. 
 
 129. Ordinarily, question whether party injured was free from culpable 
 negligence, is one of fact for the jury, under instruction. Id. 
 
 130. When nonsuit is matter of right in such case, and when question of 
 negligence to be submitted to the jury. Id. 
 
 131. Liability of railroad as common carriers for goods destroyed by fire 
 in company's warehouse. Norway Plains Co. v. R. R., 0. S. iii. 59. 
 
 132. A railroad company is bound to keep its track and contiguous land 
 clear of materials likely to be ignited from sparks issuing from its locomotive 
 properly constructed and driven. Salmon v. Delaware, L. & W. Railroad, N. 
 S. xiv. 554. 
 
 133. A person owning land contiguous to a railway is not obliged to keep 
 the leaves falling from his trees, from being carried by the wind to such 
 railway, nor to keep his lands clear of leaves and combustible matter: nor 
 on failure to perform such acts does he become contributory to the produc- 
 tion of a fire originating in the carelessness, on its own land, of the railroad 
 company. Id. 
 
 134. To prove negligence in setting fire to plaintiff's premises he may 
 show that railroad track at that place had dry rubbish, logs, and grass on it. 
 T., W. # W. Railway v. Wand, N. S. xiv. 589. 
 
EAILROAD COMPANY. 793 
 
 135. It is not necessary to show tlint liis premises were fix'st ignited. T., 
 TF. ^ W. Railway v. » and, N. S. xiv. 58'J. 
 
 136. A locomotive may have spark-arresters, and yet have other defects 
 from which it may set five to premises. Id. 
 
 137. In an action against a railroad company, the defendant proved that a 
 fire, for Vfhich damages were claimed, begun on a lot owned by one H., 
 immediately adjoining a railroad; that the fire burned across this lot to 
 plaintiff's land, where it destroyed a fence, young timber, and fence-rails on 
 said land. Held, 1. That the fact the fire was first communicated to the 
 material on the land of the adjiicent proprietor, H., did not affect the defend- 
 ant's responsibility to the plaintiffs. P., W. ^ B. R. R. Co. v. Constable, N. S. 
 xiii. 784. 
 
 138. Railroad not liable for buildings burned by sparks from an engine in 
 the ordinary way. Phila. ^ Reading R. R. Co. v. Terger, N. S. xiii. 396. 
 
 v. Negligence Genekallt. Injuries at Ceossings, and herein of Contrib- 
 utory Negligence. 
 
 139. Liability for negligence, subject discussed. N. S. vii. 449. 
 
 140. A father is bound by the law to maintain and protect his children, it 
 is a duty incumbent upon him so to do, but still if he fail in that duty, and 
 a child of tender years wanders from home, and is injured in consequence 
 of the negligence of another, the neglect of the father will not excuse the 
 party whose negligence caused the injury complained of, in an action by the 
 child. Stout V. Railroad Co., N. S. xi. 226. 
 
 141. Although a parent be negligent, and permit a child of tender years to 
 wander off from his home and go upon a railroad " turn-table," nnd the 
 child there receives a serious injury, if the child was young and inexperi- 
 enced, and not possessed of sufficient judgment to warn him of the danger 
 of the place or the character of the machinery where the accident occurred, 
 and the accident was the result of carelessness and neglect of the railroad 
 company, still there would be a liability upon the part of the company for 
 the injury sustained. Id. 
 
 142. It devolves upon a railroad company to protect its machinery and 
 " turn-tibles," by fastening or inclosing the same, if they are in public places 
 or where children are wont to resort for play, if this fact is brought home 
 to the knowledge of the company ; but if such machinery be remote from 
 public places, and no danger could be reasonably apprehended from its being 
 unfastened or uninclosed, and if it be the custom of other prudently managed 
 railroad companies not to fasten or inclose similar machinery, then no such 
 degree of care and diligence could be required of the defendant, and it 
 would not be liable. Id. 
 
 143. A railroad company is liable for an injury resulting from an act, law- 
 ful in itself, but negligently performed. Pennsylvania R. R. Co. i. Barnell, N. 
 S. viii. 758. 
 
 144. Where, under such circumstances, a bridge belonging to the company 
 fell while the plaintiff, in the course of his employment, was passing over it 
 upon a train. Held, in the absence of notice of its insufficiency, that it was 
 error to leave the question of negligence to the jury. Warner \ . Erie Rail- 
 way Co., N. S. viii. 209. 
 
 145. A through ticket over three several distinct lines of passenger trans- 
 portation, issued in the form of three tickets on one piece of paper, and re- 
 cognised by the proprietors of each line, is to be regarded as a distinct 
 ticket for each line. Knight v. Railroad Co., N. S. 654. 
 
 146. The rights of a passenger purchasing such a ticket, and the liabilities 
 of the proprietors of the several lines recognising its validity, are the same 
 as if the purchase had been made at the ticket-office of the respective lines. Id. 
 
 147. Common carriers of passengers are not bound to insure the absolute 
 safety of their passengers; but they are required to exercise the strictest 
 care consistent with the reasonable performance of their contract of trans- 
 portation. Id. 
 
 148. To render them liable for an injury to a passenger while under their 
 charge, it is enough if it was caused solely by any negligence on their part, 
 however slight, if, by the exercise of the strictest care and precaution, rea- 
 sonably within their power, the injury would not have been sustained. Id. 
 
 149. Where a railroad company make a wharf subsidiary aud necessary to 
 
794 RAILROAD COMPANY. 
 
 the proper use and eujoynient of their road, it was held, in an action to recover 
 for an injury on tlie wharf, 
 
 1. That the defendants are bound to exercise the same degree of care, in 
 maliing the wharf safe and convenient for their through passengers to travel 
 over, as is required of common carriers of passengers, although they re- 
 quired them to disembark at their depot, forty rods distant from the steam- 
 boat; and, 
 
 2. That this liability continued until, in the ordinary course of their 
 passage over the wharf, they reached the point where the liability of the 
 steamboat company commenced. Ktiiffht v. Railroad Co., N. S. 654. 
 
 150. The platform of a railroad company at a station is in no sense a pub- 
 lic highway. There is no dedication to public use as such. GiUis v. Railroad 
 Co., N. S. 729. 
 
 151. The platform is for the accommodation of passengers, and being un- 
 enclosed, persons have the privilege, but have not the legal right, of walking 
 over it for other purposes. Id. 
 
 152. The owner of property is not liable to a trespasser, or to one who is 
 oh it by mere permission or suiferance, for negligence of himself or servants, 
 or for that which would be a nuisance in a public street or common. Id. 
 
 153. To persons who come on to a platform to meet or part with passengers, 
 or who stand in such relation to the company as requires care, the company 
 is bound to have the structure strong enough to bear all who could stand upon 
 it. ■ Id. 
 
 154. The owner is bound to have the approach to his house sufficient for 
 all visitors on business or otherwise, but if a crowd gathers on it to witness 
 a passing parade, &c., and it breaks down, though not suf&cient for its ordi- 
 nary use, he is not liable to one of the crowd who might be injured. Id. 
 
 155. Is bound to furnish a safe and sufficient roadway to its servants as 
 well as others travelling over it. C Donnell v. Allegheny R. R., N. S. 757. 
 
 156. For injuries received by travellers at crossings, and the decree of care 
 required by the company's agents and by travellers, see post, 351, 352, 353, 
 354, 365 and 356. 
 
 157. In an action against a railroad company for injury caused by an acci- 
 dent, evidence that the conductor was intemperate or otherwise incompetent 
 admissible to raise a presumption of negligence. Pennsylvania R. R. Co. v. 
 Sooks, N. S. vii. 524. 
 
 158. Admissions or declarations of the employees of the company, made 
 subsequently to the accident, are not competent evidence. Such declarations 
 are only competent as part of the res gestse ; and the declarations of an officer 
 of the company stand upon the same footing. Id. 
 
 159. It is negligence in a conductor to voluntarily admit improper persons 
 or undue numbers into the oars. Pittsburgh Railway Co. v. Minds and Wife, N. 
 S. vii. 14. 
 
 160. Where the evidence shows that, an excited crowd, at a way-station, 
 among whom were drunken and disorderly persons, rushed upon the cars in 
 such numbers as to defy the resisting power at the disposal of the conductor, 
 it is error in the court to submit that to the jury from which they may find 
 negligence in the conductor in admitting in the cars either improper persons 
 or undue numbers. Id. 
 
 161. In case of fighting or disorder in the cars, the conductor must at once 
 do all he can to quell it. If necessary, he should stop the train, call to hia 
 aid the engineer, firemen, all the brakesmen and willing passengers, lead tho 
 way himself and expel the offenders, or demonstrate by an earnest experi-, 
 ment, that the undertaking is impossible. Id. 
 
 162. May by contract exempt itself from liability for loss of goods by negi 
 ligence. Lee v. Marsh, N. S. iv. 445. 
 
 163. The benefits of a statute requiring the whistle to be blown at a cross^ 
 ing are not confined to person about to cross. Wakefield y. Railroad Co., N. 
 S. iv. 256, 381. 
 
 164. The omission to blow the whistle is not conclusive evidence of negli^ 
 gence. Id. 
 
 165. Street railroad company is not taxable for horses used in its business. 
 Middlesex Co, v. Cliarlestown, N. S. iv. 117. 
 
 166. It is no justification for the employment of an incompetent servant 
 
EAILEOAD COMPANY. 795 
 
 that competent ones were difScult to obtain. Middlesex Co. v. Charlesiown, N. 
 S. iv. 117. 
 
 167. Railroad company allowing another company to use its road is liable 
 for accidents to its own passengers from the other company's negligence. E. 
 H. Co. V. Barron, N. S. vii. 124. 
 
 168. It is not negligence per se to permit standing grass and weeds on a 
 railroad track. Kansas Pacific R. R. v. Butts, N. S. x. 668. 
 
 169. Failure of traveller to stop before crossing a track is negligence per 
 se. Pennsylvania B. B. v. Beale, N. S. xiii. 526. And see Warren v. Railroad 
 Co., N; S. iv. 316. 
 
 170. Railroads and private individuals, held to exercise a degree of dili- 
 gence in preventing injury to others. 0. ^ M. R. R. Co, v. Shanefelt, N. S. ix. 62. 
 . 171. A carrier may, by special contract, limit his liability, except as against 
 his own negligence. Farnham v. 0. S; A. R. R. Co., N. S. vii. 172. 
 
 172. It is not negligence on the part of the company that tliey do not, by 
 force or barriers, prevent parties from leaving the cars at the wrong side. 
 Penna. R. R. Co. v. Zebe, 0. S. viii. 27. 
 
 173. It is the duty of a railway company to furnish the necessary and 
 proper number of hands for the safe management of its trains, and also to 
 exercise due care and diligence in furnishing sufEcient and safe machinery ; 
 and for a delinquency in either particular, the conductor of a train has a 
 right to decline his charge, or refuse to run the train.- But where he takes 
 the charge, and runs his train for a length of time without a sufficient number 
 of hands, he voluntarily assumes the risk, and waives the obligation of the 
 company in this respect as to himself, and, if injured by means of such de- 
 linquency on the part of the company, he is without a remedy against the 
 company for damages. The Mad River ^ Lake Erie Railroad v. Anson C. 
 Barber, 0. S. vi. 534. 
 
 174. Not liable for injuries happening to passengers for unforeseen acci- 
 dent or misfoi'tune, where there has been no negligence or default. Leading 
 article on the subject, N. S. i. 3. 
 
 175. The degree of care required in any particular business is to be pro- 
 portioned to the importance and the hazards of such business. Id. 
 
 176. The degree of safety which the courts ought to require should be the 
 utmost which is attainable within reasonable limits of expense. Id. 
 
 177. An action on the case for negligently conducting a railway train, 
 may be maintained ; as to what constitutes negligence, gusere ? N.Y.^ Erie 
 R. R. V. Skinner, 0. S. i. 97. 
 
 178. Railway companies owe a higher degree of watchfulness and care to 
 those sustaining the relation of passengers than to mere strangers, having 
 no fiduciary relations with the company. State of Maryland v. Railroad Co., 
 N. S. v. 397. 
 
 179. In the former case the utmost care and skill is required in order to 
 avoid injuries; but in the latter case, only such as skilful, prudent, and dis- 
 creet persons, having the management of such business in such a neighbor- 
 hood, would naturally be expected to put forth. Id. 
 
 180. The liability to make reparation for an injury by negligence is founded 
 upon an original moral duty enjoined upon every person, so to conduct him- 
 self, or exercise his own rights, as not to injure another. Kerwhaker v. The 
 Cleveland, Columbus S; Cincinnati R. R. Co., 0. S. iii. 341. 
 
 181. The mere fact that one person is in the wrong does not necessarily 
 discharge another from the due observance of proper care towards him, or 
 the duty of so exercising his own rights, as not to do him any unnecessary 
 injury. Id. 
 
 182. The doctrine that, in the case of an injury by negligence, where the 
 parties are mutually in fault, the injured party is not eniitled to redress, is 
 subject to the following material qualifications as appears fron* a review of 
 the decisions, both in England and in this country, on the subject, to wit: 
 The injured party, although in the fault to some extent at the lime, may, 
 notwithstanding this, be entitled to reparation in damages for an injury, 
 which he used ordinary care to avoid. When the negligence of the defend- 
 ant, in a suit upon such ground of action, is the proximate cause of the in- 
 jury, but that of the plaintiff only remote, consisting of some act or omission 
 
 not occurring at the time of the injury, the action is maintainable. Where 
 
796 EAILEOAD COMPANY. 
 
 a party has in his custody or control dangerous instruments, or means of 
 injury, and negligently places or leaves them in a situation unsafe to others, 
 and another person, although at the time even in the commission of a tres- 
 pass, or otherwise somewhat in the wrong, sustains an injury thereby, lie 
 may be entitled to redress. Or when the plaintiff, in the ordinary exercise 
 of his own rights, allows his properly to be in an exposed and hazardous 
 position, and it becomes injured by the neglect of ordinary care on the part 
 of the defendant, he is entitled to reparation, on the ground that, although, 
 in allowing his property to be exposed to danger, he took upon himself tbe 
 risk of loss or injury by mere accident, he did not thereby dischiirge the 
 defendant from the duty of observing ordinary care, or, in other words, 
 voluntarily incur the risk of injury by the defendant's negligence. Kerwhaker 
 y. The Cleveland, Columbus ^ Cincinnati R. R. Co., 0. S. iii. 341. 
 
 183. Where party killed by railroad was guilty of negligence, his family 
 cannot recover d«mages. Penna. R. R. Co. v. JSeale, N. S. xiii. 526. 
 
 184. The duty of traveller to stop is more obligatory where train cannot 
 be seen. Id. 
 
 185. If the track cannot be seen from carriage, he should get out and lead 
 his horse. Id. 
 
 186. .Where an ibjury occurred at a street crossing, no recovery can he had 
 without proof of actual negligence. McPheeters v. Uan. ^ St. Jos. R. R., N. S. 
 ix. 325. 
 
 187. A railroad company is liable for injuries resulting from the malicious 
 removal from the cars of one who got on wrongfully. Kline v. G. P. R. R. Co., 
 N. S. ix. 327. 
 
 188. A conductor may use force to prevent one from wrongfully getting on 
 the cars. Id. 
 
 189. The rule that the plaintiff cannot recover damages if his own wrong, 
 as well as that of the defendant, conduced to the injury, is confined to cases 
 where the plaintiff's wrong or negligence has immediately or proximately 
 contributed to the result. Id. 
 
 190. A railway company must exercise ordinary care and diligence in 
 running their trains over a public street, either in law or in fact, with refer- 
 ence to all persons rightfully on the street. K. P. R. W. Co. v. Pointer, N. S. 
 xii. 63. 
 
 191. In an action against a railway company plaintiff may show the nature 
 and extent of his injuries, his sufferings, the length of time he was disabled, 
 the value of his time, and bis expenses in being cured, and the effect his in- 
 juries will have upon him in the future. Id. 
 
 192. The prospective effect may be shown by the opinion of a surgeon. Id. 
 
 193. Plaintiff cannot prove his pecuniary or social condition so as to en- 
 hance the damages. Id. 
 
 194. Where the defendant (a railroad company) has, by its own act, ob- 
 structed the view of travellers upon the public higliway by piling its wood 
 so that the approach of the train to the crossing cannot be seen until the 
 traveller is upon the track, one who has driven upon the track with due care, 
 and looked for the train as soon as looking could be of service, will not be 
 deemed guilty of negligence in not first stopping his team to ascertain if a 
 train might be approaching. Mackay v. Railroad Co.. N. S. vi.'413. 
 
 195. If in such case the traveller is killed or injured by a collision with 
 the cars upon such crossing, the company will be deemed guilty of negli- 
 gence, and held answerable therefore. Id. 
 
 196. A ferry-boat or other means to cross a body of water on the line of 
 a railroad, whether in the middle or at the end of the route, is part of the 
 necessary property of the railroad ; and the company is liable for neglect to 
 carry a passenger across this, as well as any other part of the route. Wheeler 
 V. Railroad Co.. N. S. vi. 606. 
 
 197. A boy over eight years of nge was sent on an errand by his mother, 
 which required him to cross a railroad track. He took a short cut along 
 the track, and was overtaken and killed by a train going in the same direc- 
 tion. The place where the boy was killed was within the limits of a city, 
 and the train was moving at a rate of speed between eighteen and twenty-five 
 miles an hour: Held, that the question of contributory negligence in tlie 
 parent and child was for the jury, and that the same amount of care could 
 
EAILEOAD COMPANY. 797 
 
 not be demanded from a child as from an adult : Held, further, that regard 
 must be had to the habits, character, condition and circumstances of people 
 livi?ig in a city and along the line of a railroad, in ascertaining what degree 
 of care is necessary in running trains upon the outskirts of a city, and that 
 an admitted trespass upon the road would not necessarily bar an action for 
 damages. Pennsylvania Railroad v. Lewis, N. S. xiv. 665. 
 
 198. As a general rule, it is culpable negligence to cross the track of a 
 railroad at a highway-crossing without looking iu every direction that the 
 rails run to ascertain whether a train is approaching. R. R. Co. y Godfrey 
 N. S. xiT. 290. 
 
 199. A railroad corporation is not liable for any injury resulting from the 
 management of its road, while it is leased by another company. Mahoney v. 
 Atlantic ^ St.L. Railroad, N. S. xiv. 399. 
 
 200. There is no privity of contract in suoh case between the passenger 
 and the lessor as common carrier. Id. 
 
 201. The remedy of an injured passenger is solely against the lessee whose 
 agent the wrong-doer was. Id. 
 
 202. Riding on platform of a horse-car is not suoh negligence that the 
 court will prevent a recovery. Meesel v. i. ^ £. R. R. Co., N. S. iv. 189. 
 
 203. Liability of connecting railroad for injury to goods before it received 
 them. Darling v. R.R. Co., N. S. vi. 58. 
 
 20-1. The liability of iirst common carrier continues until actual delivery 
 to the next carrier. Fenner v. R. R. Co., N. S. vi. 63. 
 
 205. It is settled that a railroad company may contract to carry passengers 
 or freight beyond its own route, and the liability as a common carrier con- 
 tinues through the whole distance contracted for. Wheeler v. R. R., N. S. vi. 606. 
 
 206. Crossing railroad track without looking if a train is coming, is not 
 conclusive evidence of negligence in plaintiff. Warren y.R.R. Co., N. S. iv. 
 316 ; and see Railroad Co. y'Beale, N. S. xiii. 526. 
 
 VI. Ix.TUEiEs TO Passengers, and heeein of Tickets and Right to Carey 
 Baggage. 
 
 207. The statute of Missouri giving a remedy to the representatives of a 
 passenger killed upon a railway train, goes upon the same principle which 
 before obtained in regard to injuries to passengers, that such injury or death 
 primS, facie results from want of due care in the company. H. S( St. J. R. R. 
 
 Co. V. Biggins, N. S. v. 715. 
 
 208. This presumption is not conclusive under the statute, but may be 
 rebutted by evidence of the cause of the injury. Id. 
 
 209. Where a person injured by a railroad accident had accepted a ticket 
 OT pass describing him as " route agent, an employee of the Railroad Co.," 
 this pass is competent evidence for the company, but it does not estop the 
 plaintiff from showing that he was not, in fact, an employee of the company. 
 Pa. R. R. Co. 1. Books, N. S. vii. 524. 
 
 210. In an action for injury by negligence the damages should be compen- 
 sation for the actual injury, and it is error to leave the measure and amount 
 of damages, as well as the rules by which they are to be estimated, enlirely 
 to the jury. Id. 
 
 211. Not li.able to employee injured by falling of bridge from defect not 
 perceptible to competent engineer. Faulkner y.R. R. Co., N. S. vii. 510. 
 
 212. There exists a common law duty on the part of railway companies to 
 provide reasonable accommodations at their stations, for passengers who are 
 invited and expected to travel on their roads. McDonald et ux. v. The Chicago 
 ^ N. W. R., N. S. ix. 10. 
 
 213. Railroad companies are held to a strict accountability for the safety 
 of passengers. To enable them to properly discharge this duty, they have 
 power to make reasonable rules and regulations respecting the time, mode, 
 and place of entering cars ; and these, when known to the passenger, he is 
 bound to conform to, and he cannot violate them by pursuing another 
 course and hold the company liable for damages thus occasioned, though 
 the jury may believe that an ordinarily prudent man might have adopted the 
 same course. Id. 
 
 214. As a general rule, railroad companies are bound to keep in a safe 
 condition all portions of their platforms and approaches thereto, to which 
 the public do or would naturally resort, and all portions of their station 
 
798 EAILEOAD COMPANY, 
 
 grounds reasonably near the platforms, where passengers, or those who have 
 purchased tickets with a view to take passage on their cars, would naturally or 
 ordinarily be likely to go. McDonald ei ux. v. The Chicago ^ N.W. iS., N. ^ ix. 10. 
 
 215. The conductor and freight agent of a railroad passenger train, in 
 violation of the regulations of the company, consented to the attachment of a 
 private freight car, under charge of its owner and with an agreement not. to 
 he held answerable for any injury resulting from the arrangement. An 
 accident took place, not arising from such act, by which the owner of the 
 private car received personal injury. Held, that the agreement was not so 
 clearly beyond the powers of the company's servants that their disobedience 
 of the regulations would be a defence in an action by the owner of the pri- 
 vate car for damages. R. R. Co. v. Chenowith, N. S. vi. 93. 
 
 216. The attachment of the car was too remote a cause of the injury to be 
 a defence on the ground of contributory negligence. Id. 
 
 217. The owner of the private oar was a passenger. Id. 
 
 218. A passenger who leaves his proper place in the car cannot recover 
 for an injury if it was in any degree the result of such act ; but if bis position 
 was not in any manner the cause of the injury it will not prevent his recov- 
 ery, and on this point the verdict is conclusive. Id. 
 
 219. Where a passenger on a railway train is injured by the misconduct 
 of a fellow-passenger, the company is liable only in case there was negligence 
 in its officers in not making proper efforts to prevent the injury. Fittsburgh, 
 ^c. Railway Co. v. Hinds and Wife, N. S. vii. 14. ■ 
 
 220. Railroad companies are bound to furnish men enough for the ordi- 
 nary demands of transportation, but not a police force adequate to extraor- 
 dinary emergencies, — as to quell mobs by the wayside. Id. 
 
 221. Injury received by passenger from an accident — accord and satisfac- 
 tion as to. Roberts v. Eastern Counties R. R. Cb., 0. S. viii. 250. 
 
 222. The responsibility of common carriers of goods and that of passenger 
 carriers of baggage is the same. The taking pay and giving tickets or 
 checks through, makes the first company liable for the entire route. But it 
 has been held, as to baggage, each company is liable for a loss upon any por- 
 tion of the route. Leading article on the subject, N. S. i. 12. 
 
 223. The person selling a through ticket is regarded as the agent for each 
 company as regards the transportation of the baggage. Id. 
 
 _ 224. But as to the transportation of passengers the rule is that the coupon- 
 ticket imports no contract to carry beyond the limits of the particular road 
 for which each separate ticket is sold — the undertaking of each road being 
 several and not joint. Id. 
 
 225. Where a railroad company has issued a commutation ticket, by which 
 the purchaser is entitled to ride for less than the usual legal fare, under a 
 contract printed on the ticket, the company is entitled to enforce the contract 
 strictly. Ripley v. Railroad Co., N. S. v. 537. 
 
 226. It is not sufficient for the plaintiff to show killing by the company; 
 but it is incumbent on him to show some act of misconduct on the part of the 
 company to make out a primA facie case of injury. Richmond & Petersbura R. 
 R. Co. V. Jones, 0. S. vi. 346. 
 
 227. A passenger leaped from a car in which he was riding contrary to 
 orders, and was injured. Held, that he could not recover. R.E. Co. v.Yar- 
 wood, 0. S. iii. 637. 
 
 228. The fact that injury was suffered by any one while upon a railway as 
 a passenger is regarded as primll facie evidence of the liability of the com- 
 pany. Leading Article on Railways, N. S. i. 5. 
 
 229. In the absence of express contracts, the law implies one on the part 
 of the company for safe transportation, according to the general course of 
 their trains, as indicated by their public advertisements and notices; and 
 on the part of the passenger, that he will pay the usual and regular fare, 
 and will in all respects conduct himself in a decent and orderly manner, and 
 conform to all the legal by-laws and regulations of the company. Id. 
 
 230. Where a company continues to advertise the connection of trains at a 
 point beyond the terminus of their road, after the same has been discon- 
 tinued, and a passenger suffers pecuniary loss thereby, the company is liable 
 for all damages. Id. 
 
 281. The coihpany are also responsible that proper notice be given to pas- 
 
EAILEOAD COMPANY. 799 
 
 sengers of the place of changing cars, and that this be done in such a man- 
 lier that every person of common understanding and watchfulness would not 
 be in danger of mistaking its import, or in doubt in regard to following it. 
 Leading Article on Railways, N. S. i. 5, and cases there cited. 
 
 232. The rule of damages in the English cases allows only the extra ex- 
 pense of hotels and for additional fare ; but the true rule is to allow such 
 damages as might naturally have been expected to follow from such an inter- 
 ruption as occurred under all the circumstances. Id. 11. 
 
 233. A railroad corporation contracting to transport a passenger from one 
 station to another, does not obligate itself to furnish him safe egress and 
 ingress at an intermediate station. Slate v. Grand Trunk R. Co., N. S. x. 605. 
 
 23-1. A railroad corporation whose track is in a highway may unload its 
 ears there, if it does not unreasonably interfere with the use of the way for 
 ordinary travel. Mathews v. Kelsey, N. S. x. 606. 
 
 235. If a person enters the saloon-car of a freight railway train, and, when 
 the train starts, without being requested or directed to leave, remains there 
 as a passenger, contrary to the rules of the company, but with the knowledge 
 of the conductor, who receives from him the u.sual fare of a first-class pas- 
 senger, the corporation incurs the same liability for his safety as if he were 
 in their regular passenger train. Dunn v. Grand Trunk R. R., N. S. a. 615. 
 
 236. It is negligence in a traveller crossing a railroad not to stop and look 
 up and down, because he is bound to presume a train is coming. Ptnna. 
 Canal Co. v. Bentley, N. S. x. 746. 
 
 ■ 237. Where a duty is defined, a failure to perform it is negligence, and may 
 be so declared by the court. Id. ^ 
 
 238. Where the property of a landowner is unnecessarily damaged in the 
 construction or repairing of a railroad by any want of skill, care, or pru- 
 dence for his protection, he may recover therefor in an action for damages 
 as at common law, notwithstanding a statutory method is provided in the 
 charter. Terre Haute ^ I. R. R. Co. v. McKinley, N. S. x. 748. 
 
 239. To eject a passenger from a railroad car while in motion is so dan- 
 gerous an 'act that it may justify the same resistance on the part of the pas- 
 senger as to a direct attempt to take his life. Sandford v. The 8(A Av. R. R. 
 Co., N. S. i. 58. 
 
 240. Where in such a case the principal is responsible for the act of the 
 agent, the principal is also responsible for any circumstances of aggravation 
 which attended the wrong. Id. 
 
 241. In action for loss of service of plaintiff's son, plaintiff cannot recover 
 for prospective loss during minority unless he has declared specificaUy there- 
 for. Gilligan v. R. R. Co., 0. S. iii. 443. ' 
 
 242. But the rule is different if the action is brought by the child himself. Id. 
 
 243. The plaintiff, after having paid his fare from New York to Albany in 
 a passenger train, and travelled a part of the distance, left the train, giving 
 up his ticket, and receiving a conductor's check in exchange. He subse- 
 quently got upon a freight train, and continued his journey in a caboose 
 car, sometimes used for carrying passengers. His fare was at first demanded 
 and paid, but subsequently the conductor returned the money, and allowed 
 him to ride in the freight train by virtue of his ticket. While so riding the 
 plaintiff was injured by means of a collision. Held, that after receiving the 
 plaintiff on a train upon which other persons were carried for hire, demand- 
 ing fare from him, then returning it, and recognizing his ticket as evidence 
 of a contract authorizing him to be carried without further charge, it was 
 too late for the defendants to say that he was wrongfully there, or was guilty 
 of any fault in leaving the ordinary passenger train and travelling upon a 
 freight train. Edgerton v. The New York ^ Barlem Railroad Company, N. S. i. 
 377. 
 
 244. After two trials, with like finding, the court will not set aside a ver- 
 dict merely because the evidence is deemed greatly preponderating against 
 it. Gilligan v. R. R. Co., 0. S. iii. 444. 
 
 245. Action against for negligence in causing death — measure of damages, 
 &c. R. R. Co. V. McCloskey's Adm'r, 0. S. iii. 412. 
 
 246. The ticket of a passenger includes also ordinary baggnge, but not 
 merchandise. Smith and Wife v. Boston ^ Maine R.R., N. S. iii. 127. 
 
 247. If a passenger is ready and willing to pay his fare when demanded, a 
 
800 EAILEOAD COMPANY. 
 
 railroad company is bound to carry him, if there is room in the cars. Tar- 
 bell y. Central Pacific Railroad Co., N. S. viii. 187. 
 
 248. It is not the absolute duty of* a railroad company to furnish a safe 
 engine. Its duty is to use care and diligence to furnish such engine. R. R. 
 Co. V. Thomas, N. S. viii. 154. 
 
 249. Right of passengers purchasing connecting tickets over two lines, to 
 use one on the first train, and use the other afterwards. Brooke v. Railway, N. 
 S. vi. 639. 
 
 VII. Injuries to Free Passengers — Extent or Company's Liability. 
 
 250. Liability to gratuitous passenger for negligence. Wells v. New York 
 Central Railroad Co., N. S. ii. 1:^3. 
 
 251. Liability for damages to gratuitous passenger. Perkins v. New York 
 Central Railroad Co., N. S. ii. 318. 
 
 252. Who are not considered free passengers. Smith y. New York Central 
 Railroad Co., N. S. ii. 319. 
 
 253. How far may exempt themselves by agreement from liability for in- 
 juries to passengers using a free pass. Railroad Co. v. Read, N. S. vi. 125. 
 
 254. Cannot stipulate against gross negligence or wilful misfeasance. Id. 
 
 255. Passenger using free ticket, assents to the terms on which it was 
 given, and same becomes an agreement. Id. 
 
 256. A passenger carried gratuitously, or as a matter of courtesy, in the 
 cars of a railroad company, who is injured by an accident arising from the 
 gross negligence of the servants of the corporation, is entitled to recover 
 against the- latter. Reading R. R.Y.Derby, 0. S. i. 397. 
 
 257. Qusere whether the corporation would not be also liable in a case of 
 simple negligence ? Id. 
 
 258. That a passenger injured by an accident occasioned by the negligence 
 of the servants of a railroad company, is also a stockholder therein, will not 
 affect his right to damages. Id. 
 
 259. A master is liable for the negligence of his servant in the course of 
 ' his employment, though the particular act be contrary to express orders. Id. 
 
 260. D., a stockholder in a railroad corporation, was on the road of the 
 latter by invitation of the president, not in the usual passenger cars, but in 
 a small locomotive car used for the convenience of ofiBcers of the company, 
 and paying no fare for his transportation. A collision occurred with another 
 engine belonging to the same company, which was by gross negligence, and 
 contrary to express orders given to the driver on the same track, moving in 
 the opposite direction, and in this accident D. received serious injury. Meld, 
 that he was entitled tx> recover in case against the company. Id. 
 
 261. A railroad company which carries a passenger without fare, by con- 
 sent of its superintendent and the conductor of the train, is liable for an in- 
 jury sustained by him through the w:int of due and reasonable care in per- 
 forming its duty. Todd v. The Old Colony, ^c, Railroad Company, N. S. i. 437. 
 
 262. It will make no difference in regard to the liability of the company 
 that a passenger was travelling on a free ticket. But if the passenger 
 chooses to ride on the engine, or in any other exposed situation, for his own 
 convenience, after being made aware of his peril, the company are not re- 
 sponsible for the consequences. Leading Article on Railways, N. S. i. 5, 6. 
 
 263. So, too, if one accept a free ticket, one of the expressed conditions of 
 which is, that the company assume no responsibility in regard to the trans- 
 portation either of the passenger or his baggage, the condition is binding. 
 But if, in such case, the passenger is injured by gross negligence of the com- 
 pany, they are still liable. Id. 
 
 VIII. Negltqekoe op Passengers and Others — Contributory. 
 
 264. It is negligence for a passenger on a railroad train to put his .arm out 
 of the car window, and if the facts are undisputed that the injury resulted 
 from this cause, the court should pronounce it negligence as a matter of law. 
 Pittsburgh Sf Connellsville R. R. Co. v. McClurg, N. S. vii. 277. 
 
 265. There may be qualifying circumstances in the condition of the pas- 
 senger, which would make special care the duty of the carrier, but such facts 
 should be proved as part of the case. Id. 
 
 266. The case of the New Jersey Railroad Co. v. Kennard, 9 Harris, 203, so 
 far as it decided that it is the duty of railroad companies to place guards on 
 their car windows so as to prevent passengers from putting their limbs out, 
 overruled. Id. 
 
EAILEOAD COMPANY. 801 
 
 267. It is negligence for a passenger in a railroad oar to allow his arm to 
 project out of the window, and if )ie receive injury from such position he 
 cannot recover. Indianapolis ^ Cincinnati R. R. Co. t. Rutherford, N. S. vii. 476. 
 
 268. The railroad company is not bound to put bars across its windows to 
 prevent passengers from putting their limbs out. Id. 
 
 269. Evidence that passenger is lame and unable to take personal charge 
 of baggage is admissible to rebut the presumption of negligence from his 
 leaving it. Curtis v. R. R., N. S. vii. 125. 
 
 270. In an action for damages by a person injured by negligence, evidence 
 of the number of plaintiiFs family, or of his habits and industry, is not ad- 
 missible unless special damage is averred. Pennsylvania R. R. Co v Books 
 N. S. vii. 524. 
 
 ^71. A traveller in a railroad car cannot recover damages against the rail- 
 road company for a personal injury sustained, wholly or in part, by reason 
 of allowing his arm or elbow to be outside of the window. Todd\. The Old 
 Colony, S;c.. Railroad Company, N. S. i. 437. 
 
 272. Passengers leaving a train improperly, cannot maintain action for 
 personal injury received thereby. Frost v. R. R. Co., N. S. v. 573. 
 
 IX. Injtihies to their Employees. 
 
 273. A superintendent cannot employ a physician to attend an employee 
 who has been injured by railroad company's locomotive, and bind the com- 
 pany. Marquette, H. cj- O. R. R. Co. v. Taft, N. S. xiii. 527. 
 
 274. A railroad company is not liable to its fireman for an injury resulting 
 from misplacement of a switch, where it is not traced to the company or 
 its employees. Tinney, Adm'x v. Boston ^ Albany R. R., N. S. xi. 723. 
 
 275. County subscriptions to railroad corporations. Subject discussed. 
 N. S. xi. 787. 
 
 276. la responsible to its employees for the proper construction of its road, 
 its adjuncts and equipments, and the selection of competent and skilful subor- 
 dinates to supervise, inspect, repair, regulate, and control its operations. If 
 it fails in any of its duties in these respects, and its servant thereby sustain 
 injury, he may recover. Wa-mer v. Erie Railway Co., N. S. viii. 209. 
 
 277. If, however, these obligations are once perfc^-med, and its structures 
 are properly made, and it employs from time to time competent and trust- 
 worthy agents to examine and test the continued sufficiency of such struc- 
 tures, and these tests are applied with the frequency and in the manner 
 which time and experience have sanctioned, no action will lie though its 
 structures turn out to be insufficient and the servant in consequence is in- 
 jured. Id. 
 
 278. One who had been in the employment of the company as an engineer 
 and brakesman, until his train was discontinued, a few days previous, and 
 who had not been settled with or discharged, although not actually under 
 pay at the time, and who signalled the train to take him up, and who took his 
 seat in the baggage-car with the other employees of the company, and paid 
 no fare and was not expected to, although at the time in pursuit of other 
 employment, cannot be considered a passenger. H. Sf St. J. R. R. Co. v. Hig- 
 gins, N. S. v. 715. 
 
 279. It will not deprive of his remedy a passenger who comes upon the 
 train in that character, and is so received, that he is allowed, as a matter 
 of courtesy, to pass free, or to ride with the employees of the road in the 
 baggage-car. But a passenger who leaves the passenger-carriages to go 
 upon the platforms or into the baggage-cars, unless compelled to do so tor 
 want of proper accommodations in the passenger-carriages, or else by the 
 permission of the conductor of the train, must be regarded as depriving him- 
 self of the ordinary remedies against the company for injuries received, 
 unless upon proof that his change of position did not conduci to the in- 
 jury. Id. 
 
 280. In an action against a railroad company by an administrator of one 
 of its employees, the sole question is, was the defendant guilty of negligence 
 in employing an incompetent person as conductor on the train on which the 
 decedent was killed. HasMn, Adm'r v. N. Y. C. R. R. Co., N. S. xii. 666. 
 
 281. Raising to the post of conductor a person who has served seven years 
 in the inferior station of car-coupler, is not of itself proof of negligence. Id. 
 
 282. It being impossible for a company to move its trains when being made 
 
 51 
 
802 EAILKOAD COMPANY. 
 
 up according to a time-table, the omission to provide regulations for such 
 movements is not negligence. Haskin, Adm'r, v. iV". Y. 0. R. R. Co., N. S. xii. 
 666. 
 
 283. One who enters into the employ of a company with full knowledge 
 that no provision has been made for protecting its servants, has no claim to 
 recover damages for injuries resulting from the want of such provisions. Id. 
 
 284. In the same general service with the hands running the trains, so as 
 to relieve the company from responsibility for injury to him from their neg- 
 ligence. CfDonnell v. Allegheny Railroad, N. S. viii. 757. 
 
 285. In a suit by an employee against a railroad for injury received in 
 consequence of the timber on a oar projecting over the end, it would be error 
 to instruct the jury, "that if the car which hurt plaintiff was loaded as other 
 ears on defendants' and other railroads, it was not negligence." Hamilton 
 V. Railroad Co., N. S. xiv. 60. 
 
 286. So an instruction that if such was the usual custom of the defendants' 
 railroad in carrying timbers, it was the plaintiff's duty to watch and avoid 
 them, is erroneous. Id. 
 
 287. Railroad not responsible to employee for personal injury arising 
 from negligence of switchman, if he had used due care in his selection. GtZ- 
 mara v.,ie.ie., N. S.T. 572. 
 
 288. Employee entering the service of a railroad company, assumes the 
 risk. Hawley v. R. R., 0. S. vi. 352. 
 
 289. One employee or servant has no right of action against the principal 
 or master for an injury sustained through the negligence of another employee 
 or servant in the same service. Mitchell v. P. R. R. Co., 0. S. i. 717. 
 
 290. When a railroad company places in the hands of one that it employs, 
 when he is employed, printed rules and regulations to which he is required 
 to conform if he enters into their service or employment, one of which is, 
 that " the regular compensation will cover all risk or liability from any 
 cause whatever, in the service of the company," that becomes an express 
 provision of the contract, by which he waives. all claim for any injury re- 
 ceived in such service. Id. 
 
 291. In an action against a railroad company for an injury sustained by a 
 person while acting in the capacity of conductor on a train of cars, on the 
 ground that the injury was the result of the insufficiency of the oars, or 
 defects in the machinery of the train, the company is not to be treated as a 
 guarantor of the sufficiency and safety of the cars and machinery of the 
 train ; but as responsible only where the injury is without fault on the part 
 of the conductor, and the result of the neglect of ordinary and reasonable 
 care and diligence, in furnishing sufficient and safe cars and machinery for 
 the train. The Mud River & Lake Erie Railroad Company v. Anson C. Barber, 0. 
 S. vi.634. 
 
 292. The conductor of a train of railway cars, although he undertake his 
 engagement in view of the nature, hazards, and responsibilities of his em- 
 ployment, has a reason to expect, and a right to exact, that reasonable care 
 and diligence on the part of his employer, in furnishing him with safe and 
 sufficient cars and machinery for the train, which is most common and usual 
 in the business of railroad companies, and being presumed to contract in 
 contemplation of this, he can require no more. Id. 
 
 293. The conductor of a train of railway cars, being the representative of 
 the railroad company in the command and management of the train and not 
 being under the immediate conti'ol and direction of a superior or supervisory 
 agent, is held to ordinary and reasonable care and diligence, not only in the 
 management of the train but also in the due inspection of the cars, machinery, 
 and apparatus of the train, as to their sufficiency and safety ; and if he 
 receive an injury while neglecting that care and diligence required of him in 
 the management of his train, or by means of any defect or insufficiency in 
 the cars, machinery, or apparatus, with a knowledge of which he was running 
 the train, or which could have been known to him by the exercise of that 
 care and diligence required of him in the performance of his duty, or in 
 other words, if his neglect in either of these particulars contributed as a 
 proximate cause of the injury, he can have no right against the company for 
 damages. Id. 
 
 294. A railroad company is not liable to an action for damages for an injury 
 
EAILKOAD COMPANY. 803 
 
 received by a conductor of one of its trains, in consequence of fJie insuifi- 
 cienoy of the oars, or defects in the machinery or apparatus of the train 
 under his charge and control, where such insufficiency or defects were un- 
 known to both parties, and neither party was in fault The Mad River ^ 
 Lake Erie Railroad Company v. Anson 0. Barber, 0. S. vi. 534. 
 
 295. In such action, the plaintiff, in order to lay a sufficient foundation 
 for a recovery and judgment, for an injury received by him while acting as 
 Buch conduetoij, must aver, or show in his petition, in addition to the allega- 
 tion that he had not a knowledge of the insutficipnoy or defects which were 
 the alleged cause of the injury, that he had exercised due care and diligence 
 in the use and examination or inspection of the cars, machinery, &e., belong- 
 ing to the train, while the same were in his charge, and under his direction. Id. 
 
 296. When an employee enters into the service of a railroad company, he 
 assumes the risks incident to such employment, such as the carelessness or 
 unskilfulness of his co-employees, when they were skilful and careful at 
 the time of their employment. Mawley v. Baltimore 4" Ohio Railroad Co., 0. 
 S. vi. 352. 
 
 297. In the selection of servants the company is bound, in such case, only 
 to the extent of care which prudent men ordinarily exercise. Id. 
 
 298. Kailroad company liable for injury to a servant caused by defective 
 ro^ad-bed. Snow v. Housatonic R. R. Co., N. S. iv. 316. 
 
 X. Right to make Regulations. 
 
 299. It is a reasonable regulation for a railroad corporation to fix rates of 
 fare by a tariff posted on their stations, and to allow a uniform discount on 
 these rates to those who purchase tickets before entering the cars. The State 
 V. Ooold, N. S. V. 143. 
 
 300. A passenger, who has thus neglected to purchase a ticket, has no right 
 to claim the discount, and if he refuses to pay to the conductor the fare estab- 
 lished by the tariff, the conductor is justified in compelling him to leave the 
 train at a regular station. Id. 
 
 301. Policy and rights of making discrimination between fares by railroad 
 company. Note to Id. 
 
 302. Power of New York common council to authorize extension of city 
 railroad. People v. Railroad Co., N. S. v. 571. 
 
 303. All rules and regulations of railway companies which are necessary 
 and reasonable are binding. So a regulation excluding merchandise from 
 passenger trains, even where it does not exceed the weight of the ordinary 
 baggage of a passenger, is valid ; since merchandise is not baggage. Lead- 
 ing Article on Railways, N. S. i. 7, and see post, 311. 
 
 XI. Right to Excutde Impeoper Persons. 
 
 304. Conductor of street car may exclude persons likely to be offensive or 
 annoying to other passengers. Vinton v. Railroad Co., N. S. vi. 62. 
 
 305. When liable for an expulsion from oars by a servant of the company. 
 Railroad Co. v. Baum, N. S. vi. 717. 
 
 306. The servants of a railroad company may remove a passenger wlio re- 
 fuses to pay his fare. Chicago R. I. &; P. R. R. Co. v. Herring, N. S. xii. 196. 
 
 307. If the passenger offers a paper as a pass, it is his duty, on being in- 
 formed that it is not a pass, to pay his fare or leave the train at the first 
 station. Id. 
 
 308. If the servants of the company use more force than is necessary to 
 remove a passenger, the company are liable. Id. 
 
 309. If the passenger is wilfully and negligently injured, the jury may 
 give exemplary damages, and an instruction to do so is not error. Id. 
 
 310. The conductor of a train has a right to put off a passenger refusing 
 to pay his fare, using no more force than is necessary to effect his removal. 
 McClure v. P. W. ^ B. R. R. Co., N. S. xi. 61. 
 
 311. The board of directors of a railroad company may make rules and 
 regulations in relation to their business, but they must be reasonable, lawful, 
 and within the limits of their charter. The establishment of certain trains 
 for the exclusive transportation of passengers and their baggage and other 
 trains exclusively for the carrying of freight, is a reasonable regulation. 
 Merrihao v. The Milwaukee ^ Mississippi Railroad Co., 0. S. v. 364. 
 
 812. A person cannot, by merely paying his fare and procuring his ticket 
 
804 EAILEOAD COMPANY. 
 
 as a passenger, compel a railroad company to carry him daily, together with 
 his trunk or trunks, when each trunk or trunks contain merchandise, money, 
 and other valuable matter known as " express matter." Merrihew v. The 
 Milwaukee ^ Mississippi Railroad Company, 0. S. v. 364. 
 
 313. A passenger who refuses to pay his fare until provided with a seat in 
 a particular car, may be ejected. Pittsburgh Railroad Co. v. Van Houten, N. 
 S. xiv. 589. 
 
 314. The United States Express Company had the use of a portion of the 
 baggage car on a passenger train of the Union Pacific Railway Company, 
 Eastern Division, and' their travelling agents, called express messengers, 
 were allowed to ride on this car without paying fare. Other passengers were 
 excluded therefrom. Held, in an action for damages to one who was in the 
 oar with these agents, to learn the duties of express messenger, that the 
 plaintiff was not a passenger, nor entitled to the rights of one. Union Pacific 
 R. R. Co. V. Nichols, N. S. xi. 32. 
 
 315. An Act of Congress which says "no person shall be excluded from a 
 car on account of color," means that colored persons shall travel in the same 
 cars as white ones. Railroad Co. y. Brown, N. S. xiii. 326. 
 
 316. Has the right to exclude vehicles from their station-yard. Barker v. 
 R. R. Co., 0. S. Y. 57. 
 
 XII. Liability of Compaht fob Acts or their Employees. , 
 
 317. A railroad company is liable for injuries resulting from its servants 
 falsely announcing the arrival of the train at a station. /. ^ N. Central R. R. 
 V. Farrell, N. S. ix. 454. 
 
 318. A railroad company is not liable to an individual for rendering a 
 highway impassable by the construction of the railway. Buck v. C. S[ P. R. 
 R. Co.,N. S. ix. 579. 
 
 319. Where a passenger at a railroad depot, while having his baggage 
 checked, got into an altercation with the baggage-master and was struck by 
 him with a hatchet, the company were not liable for the injury. Little Miami 
 R. B. V. Wetmore, N. S. ix. 621. 
 
 320. Railroad company not liable for baggage not called for within 
 twenty-four hours after its arrival at destination. Holdridge v. U. & B. R. 
 R., N. S. ix. 637. 
 
 321. In Vermont, the obligation of railroad companies to build fences along 
 their roads only extends to the rightful owner of adjoining fields. Bemia v. 
 C. ^ P. R. R. Co., N. S. ix. 645. 
 
 322. Responsibility of, for act of conductor putting person off a freight oar, 
 while in motion. Holmes v. Wakefield, N. S. vi. 573. 
 
 323. Liability of, undertaking to carry live animals. Id. 
 
 324. Damages, in an action for failure to deliver them on a certain day. Id. 
 
 325. A common caTrier of passengers is responsible for the wilful miscon- 
 duct of his servant toward a passenger. Goddard v. Qrand Trunk Railway, 
 N. S. x. 17. 
 
 326. A passenger who is assaulted and grossly insulted in a railway car by a 
 brakeman employed on the train.has a remedy therefor against the company. Id. 
 
 327. If a brakeman, employed on a railway passenger train, assault and 
 grossly insult a passenger thereon, and the company retain the offending 
 servant in their service after his misconduct is known to them, they will be 
 liable to exemplary damages. Id. 
 
 328. If two railroads have authority to run a railroad between the same 
 termini, neither can take exception to an irregularity in the other, unless it 
 shows particular injury. Erie R. R. v. Del. ^ L. ^l/festern R. R., N. S. x. 350. 
 
 829, Where a railroad has irregularly appropriated lands of no particular 
 value to the owner, a court of equity will not enjoin their use by the com- 
 pany. . Id. 
 
 330. Agent in charge of depot and freight is proper person of whom to 
 inquire for lost baggage, and his answer is part of res gestae. Curtis v. R. R., 
 N. S..vii. 125. 
 
 331. If passenger at end of his journey leaves his baggage without any 
 arrangement, the company is not liable, but an arrangement with the bag- 
 gage-master to take charge of it will bind the company. Id. 
 
 332. Property left in railway carriage — larceny by employee in taking. 
 a. Y.Pierce, i.,374. 
 
EAILEOAD COMPANY. 805 
 
 S33. Where an injury results from want of care and caution on the pait of 
 the agents of a railroad company. B. Sf 0. E. R. Co. v. State to use of Dough- 
 erty, N. S. xii. 259. 
 
 334. Railroad company responsible for flagman's negligence at a private 
 crossing over their track in city used by public as a highway. Sweeny y.B. 
 M. Co., N. S. V. 578. 
 
 335. Railroad companies are liable for injuries inflicted by their servants 
 upon passengers. Hanson v. European ^ N. A. R. R., N. S. xiv. 197. 
 
 83(). When a company is responsible for neglect or carelessness of co- 
 employee. Eawhij V. The Bait. J- 0. R. R. Co., 0. S. vi. 352. 
 
 337. When the organization of a railroad company takes place, which 
 organization is usually formed by the instrumentality of commissioners 
 appointed for that purpose, the authority of the commissioners ceases; and 
 in the absence of any .special provisions to the contrary, all powers as to any 
 further subscriptions to the capital stock vest in the corporale body. Its 
 dealing with third persons, as to its stock, must stand upon the footing of 
 ordinary contracts. James v. Cincinnati Railroad, 0. S. vi. 718. 
 
 338. But it seems that the company are liable to the passenger for the acts 
 of their servants when acting within the limit of their employment, althougti 
 they exceed their authority. And the company is liable to indictment for 
 the acts of their officers and servants in transcending the powers secured by 
 their charters. Leading Article on Railways, N. S. i. 8. 
 
 XIII. Contract to Carry Passenqees and Freight betond the Termini of 
 THEIR Road. 
 
 339. Liable on contract to deliver goods at a certain point on a connecting 
 road, though such point be beyond the line of the road and outside of the 
 state. Burtis v. Buffalo, Jfc, Railroad Co., N. S. ii. 184. 
 
 340. Such liability exists at common law as well as by statute. Id. 
 
 341. Liability as warehousemen or common carriers — course of business 
 on roads along same route. Judson v. Western Railroad Co., N. S. ii. 380. 
 
 342. Not liable for loss of baggage on connecting road over which it sells 
 a ticket, if the ticket contains a printed stipulation that the company assumes 
 no such responsibility. Penn. Railroad Co. v. Schwarzenberger, N. S. iii. 572. 
 
 343. Company issuing ticket for excursion over several lines, and sending 
 its baggage-car througli, is liable for loss of baggage anywhere on the route. 
 Najao V. Boston, Sfc, Railroad Co., N. S. iii. 567. 
 
 344. Railroads as common carriers, may make a valid contract to carry 
 beyond the limits of their own route and thus assume all responsibility, adopt 
 the acts, and become liable for the negligence of others. Noyes v. Rutland 
 and Burlington Railroad Co., 0. S. iv. 231. 
 
 345. A carrier by contract may undertake a personal delivery beyond 
 the limits of his route of merchandise entrusted to him. Id. 
 
 346. Semble, that where a carrier receives goods marked for a particular 
 destination, beyond the route for which he professes to carry, and beyond 
 the terminus of his road, he is bound only in the absence of any special agree- 
 ment to transport and deliver such merchandise according to the established 
 usage of the business, and is not liable for losses beyond his own line. Jen- 
 neson v. The Camden and Amboy and Transportation Co., 0. S. iv. 234. 
 
 347. Connecting railroads are either those which have such a union of 
 tracks as will admit the passage of oars from one to the other; or, those 
 which have such an intersection as will admit the convenient interchange of 
 freight and passengers at the point of intersection. Railroad Co. v. Railroad 
 Co., N. S. vi. 231. 
 
 348. Therefore the Catawissa and the Atlantic and Great Western Railroads 
 are connecting roads, though the difl^erence in gauge prevents the transfer of 
 cars from the track of one to that of the other. Id. 
 
 849. A private party not authorized to represent the Commonwealth, has 
 no right to question the corporate existence, de jure, of a railroad company 
 acting as a corporation under the laws of this state. Id, • 
 
 350. Carriers not liable on receipt for a bill of goods " for collection," be- 
 yond their route, without a special contract. Lowell Co. v. Sargent, N. S. iv. 183. 
 
 XIV. Accidents at Crossings. 
 
 351. Where there is no testimony as to whether a traveller stopped and 
 listened before going on a railroad, the question of his negligence is for the 
 jury. Penna. R. R. Co. v. Weber, N. S. xiv. 526. 
 
806 EAILEOAD COMPANY. 
 
 352. It should be left to the jury to determine whether the plaintiif was 
 injured by omission to ring the bell or blow the whistle, and a failure so to 
 do is fatally defective. O., B. ^ Q. Railroad Co. v. NotzM, N. S. xiv. 589. 
 
 353. Failure to stop before crossing track is negligence per se. Penna. R. 
 R. V. Beale, N. S. xiii. 526. 
 
 354. At a railroad crossing it is carelessness in any one approaching with 
 a team, not to stop and listen, before attempting to cross. Wilds t. The Hud- 
 son R. R. Co., N. S. ii. 76. 
 
 355. Where a person in crossing a railroad track is injured by collision 
 with the train, the fault prim& facie is his own. Telfer y. Northern R. R. Co., 
 N. S. iii. 665. 
 
 356. Where a railroad company receipts for goods to be transported beyond 
 its terminus it will be liable for the default of the other carriers on the line. 
 King V. Macon ^ Western R. R., N. S. xi. 720. 
 
 XV. Injuries to Cattle Stkatino on the Teaok. 
 
 357. If domestic animals wander on the track, whether with or without 
 the owner's knowledge, and are killed without wantonness or gross negli- 
 gence of the railroad company, the latter will not be responsible in dam- 
 ages ftr their death. North Penna. R. R. Co. v. Rehman, N. S. v. 49. 
 
 358. The fact that the point where they were killed was at the intersection 
 of the railroad with a public highway does not change the rule. A highway 
 is public for purposes of travel only, and cattle wandering unattended are not 
 within the class to whose protection the railroad company is bound to look in 
 crossing. Id. 
 
 359. A railway company is responsible only for negligence or wanton in- 
 jury, and the owner of cattle killed or injured on their track, can have no 
 recourse to the company or its servants ; and such owner is liable for damages 
 done by his cattle to the company or its passengers. The New York and Mrie 
 Railway v. Skinner, 0. S. i. 97. 
 
 360. By the common law of Pennsylvania, as well as by the common law 
 of England, the owner of cattle is bound to keep them within his own custody 
 at his peril, though he may let them go at large without incurring liability 
 from entry on unenclosed woodland or waste field, and this because of the 
 peculiar circumstances of the people here. Id. 
 
 361. Where a railroad delays for a week to repair a fence burned down, it 
 will be liable for injury to cattle straying on the track. C, C, C. S; I. Rail- 
 road Co.T. Brown, N. S. xiv. 61. 
 
 362. Railroad company not liable for injury to cattle straying on the track 
 at a place where the company was not bound to fence. P. C. ^ St. L. Rail- 
 way Co. V. Bowyer, N. S. xiv. 61 . 
 
 363. It is negligence in the owner of cattle to allow them to run at large in 
 a city where a railroad is not fenced. J. M. ^ I. Railroad Co. v. UnderhUl, N. 
 S. xiv. 589. 
 
 364. In such case he cannot recover if they are killed, unless it is done 
 wilfully. Id. 
 
 365. The obligation on the part of railroads to maintain fences extends to 
 the public generally. Marietta Sf Cincinnati R. R. v. Stephenson, N. S. xiii. 649. 
 
 366. Enclosures of railroads must be separate from that of adjoining . pro- 
 prietors. Id. 
 
 367. Where cattle or horses on the track are frightened, and in run- 
 ning or jumping out of danger are injured, but there is no collision with the 
 cars or locomotive, the railroad company is not liable. Lafferty v. St. Jos. R. 
 R., N. S. ix. 229. 
 
 368. The company is not liable for injuries resulting from fright. 0. & M. 
 R. R. V. Cole, N. S. xiii. 198. 
 
 369. A railroad company has the exclusive right of way along its track, 
 and, in Pennsylvania, is not bound to provide fences to keep out cattle. 
 North Penna. R.R. Co. v. Rehman, N. S. v. 49. 
 
 370. Kegulation of interstate traffic on railroads by Congress. Subject dis- 
 cussed, N. S. xiii. 1. 
 
 371. To render a railroad liable, under the statute of Indiana, for animals 
 killed, the killing must be the result of direct collision. 0. & M. Railway Co. 
 V. CoU, N. S. xiii. 198. 
 
 372. A railroad company is only bound to use ordinary care and diligence 
 
EAILEOAD COMPANY. 807 
 
 to avoid injury to the owner of an animal trespassing on their track. Semis 
 V. C. cj- P. K. R. Co., N. S. ix. 645. 
 
 373. A railroad company must fence when the streets of a town terminate 
 at its track, and if it does not, it is liable for injury to cattle, without regard 
 to the negligence of the owner. T., W. ^W. Railway Co. v. Gary, N. S. xii. 534. 
 
 374. Where animals escape from their pasture, through defect of fences, 
 which it is the duty of a railway company lo maintain, and thereafter come 
 upon the track and are killed by a passing triiin, the company will be held 
 responsible to the owner. GUman v. Railroad Co., N. S. xii. 556. 
 
 375. And the fact that the animals, after their first escape, wandered over 
 other intervening land of their owner, and finally came upon the track across 
 the land of another landowner, and by reason of there being no fence be- 
 tween the track and the river, which the company had omitted to build, by 
 reason of a contract to that effect with the owner of the land, will not excuse 
 the company. The loss is sufficiently the natural result of the defendant's 
 negligence, in omitting to build a proper fence upon plaintiff's land, to ren- 
 der the defendant responsible. Id. 
 
 376. Having left its railroad unenclosed through a country where domestic 
 animals are allowed to be at large, and thus exposed to the casualties of the 
 animals accidentally getting upon the railroad track, it is the duty of the rail- 
 road company, acting through its agents, to use at least ordinary and rea- 
 sonable care and diligence, to avoid unnecessary injury to the animals when 
 found in the way of a train on the road. Kerwhaker v. The Cleveland, Colum- 
 bus and Cincinnati R. R. Co., 0. S. iii. 341. 
 
 377. The first and paramount object of the attention of the agents of the 
 company, is due regard for the safety of the persons and property in their 
 charge on the train, for which they are held to a high degree of care, arid so 
 far as consistent with this paramount duty, they are bound to the exercise of 
 what in that peculiar business would be ordinary and reasonable care to avoid 
 unnecessary injury to animals casually coining upon their enclosed road ; and 
 for any injury to animals arising from a neglect of such care, the company is 
 liable in damages to the owner. Id. 
 
 378. Though in Pennsylvania a railroad company is not bound to fence its 
 track to keep off cattle, yet, as between it and its passengers, it takes the risk 
 of injury to them from that cause. Railroad Co. v, Chenowith, N. S. vi. 93. 
 
 379. There is no law in Ohio requiring railroad companies to fence their 
 roads, but when they leave their railroads open and unenclosed by sufficient 
 fences and cattle-guards, they take the risk of intrusions upon their roads by 
 animals running at large, as to other proprietors who leave their lands unen- 
 closed ; so that the owner of domestic animals in allowing them to be at 
 large, takes the risk of their loss, or of injury to them by unavoidable acci- 
 dent, and the company, by leaving its road unprotected by an enclosure, runs 
 the risk of animals at large getting upon the road, without any remedy 
 against the owner of the animals. Kerwhaker v. The Cleveland, Columbus and 
 Cincinnati R. R. Co., 0. S. iii. 341. 
 
 380. There is no law in Ohio prohibiting the owners of domestic animals, 
 consisting of cattle, horses, hogs, &c., from permitting such animals to run 
 at large upon the range of unenclosed lands, except when unruly and dan- 
 gerous, and the rule of the common law of England, requiring the owner 
 of such animals to keep them on his own land, or within enclosures, has 
 never been in force in Ohio, being inapplicable to the circumstances, condi- 
 tion, and usages of the people, and also inconsistent with the legislation of 
 the state. Kerwhaker v. The Cleveland, Columbus, and Cincinnati Railroad Com- 
 pany, 0. S. iii. 341. 
 
 381. The owner of such animals, in allowing them to be at large on the 
 range of unenclosed lands, is not chargeable with an unlawful act, or an 
 omission of ordinary care in keeping his stock, doingnothing more than that 
 which has been customary, and, by common consent, done by people gen- 
 erally since the first settlement of the state, subject to the qualification, how- 
 ever, that animals which are unruly or dangerous are required to be re- 
 strained. Id. 
 
 382. There is no law in Ohio requiring any person to fence or enclose 
 his own lands, yet the person who leaves his grounds unenclosed takes the 
 risk of occasional intrusions thereon by th-e animals of others running at 
 la.rge. And the owner of such animals, in allowing them to be at large, 
 
808 EAILEOAD COMPANY. 
 
 takes the risk of their loss, or of injury to them Tjy unavoidable accident 
 from any danger into which they may happen to wander. EerwhaJcer v. The 
 Cleveland, Columbus, and Cincinnati Railroad Company, 0. S. iii. 341. 
 
 383. The fact that cattle are killed by collision with a railway train, at a 
 point where the railway track crosses a country road, does not render the 
 company responsible in damages, for it has u, right to cross the highway, 
 observing proper care and caution to avoid accident. Richmond S; Petersburg 
 R. R. Co. V. Jones, 0. S. vi. 346. 
 
 384. And the owner of the cattle cannot recover in such case, without 
 proving want of skill and caution on the part of the company. Id. 
 
 385. The case' is much less favorable to the owner where cattle are killed, 
 straying on the track of the company, r.emotefrom the point of intersection. Id. 
 
 386. The fence law of Virginia does not make it lawful for the cattle of 
 persons in the neighborhood to be upon the track of a railway, unenclosed 
 by a lawful fence, but merely deprives the company of any remedy against 
 the owners of cattle for any damages which may result to the company from 
 their straying on such unenclosed track. Id. 
 
 387. In an action against a railway company for damages for killing cattle, 
 the onus is on plaintiff to prove negligence and misconduct on the part of 
 the company. Id. 
 
 XVI. Municipal Subsokiptions to. 
 
 888. Municipal subscriptions and taxation in aid of railroads. Subject dis- 
 cussed, N. S. ix. 649. 
 
 XVII. Violation op Conteacts. 
 
 389. Where the Maine Central Railroad Company let to the Eastern Ex- 
 press Company, for four years, the exclusive use of a certain separate apart- 
 ment in a oar attached to each of their passenger trains, for the purpose of 
 transporting the express company's messenger and merchandise, and agreed 
 that they would not, during the continuance of such contract, let any space 
 in any car on their passenger trains to any other express carrier ; and the 
 railroad company, before the expiration of such contract, but after reasona- 
 ble notice to them, refused to receive upon any terms from the New England 
 Express Company, when and where they received the Eastern Express Com- 
 pany's freight, such packages as are usually carried by express companies, 
 to be transported by their passenger trains. Held, That the railroad com- 
 pany were liable, under ch. 193 of the Public Laws of 1868, to the New 
 England Express Company, in an action of damages. Express Co. v. Maine 
 Central R. R., N. S. ix. 728. 
 
 390. It seems that an action at common law would lie against the railroad 
 under the same circumstances. Id. 
 
 XVIII. POWEE OP THE LbQISLATDKE OVER RAILROADS. 
 
 391. The power of Congress to regulate commerce extends to commerce 
 on land, carried on by railroads ; and such railroads may be regulated by 
 Congress the same as steamboats. Gray v. Clinton Bridge, N. S. vii. 149. 
 
 892. The legislature may authorize building a railroad on a public road. 
 Danville Railroad Co. v. Commonwealth, N. S. xi. 397. 
 
 393. A railroad obstructing travel on the portion of a public road allowed 
 by law, is not guilty of nuisance. Id. 
 
 394. The legislature has full power to authorize the laying of railways in 
 the streets of a city. Patterson & Passaic R. R. v. Mayor of Patterson et al., 
 N. S. xiii. 833. 
 
 XIX. Liability op Street Railways. 
 
 395. It is the duty of a street railway company to provide vehicles which 
 insure security to their passengers, and not to suffer them to occupy unsafe 
 places upon such vehicles. JSast Saginaw St. Railway v. Rohn, N. S. xii. 745. 
 
 896. If this duty is neglected, and a passenger is injured, he cannot re- 
 cover damages of the company, if his own neglect of the duty of self-pres- 
 ervation contributed to the injury. Id, • 
 
 897. But duty can only be predicated of one who has capacity to under- 
 stand, and ability to performit. Therefore, a child not of an age or discre- 
 tion to understand the danger in riding upon the front platform of a street 
 car, cannot be charged with negligence in so doing. Id. 
 
 398. Parents have a right to assume that street railway companies furnish 
 conveyances wliich are reasonably safe, and have regulations which preclude 
 persons riding in unsafe places upon them. They cannot, therefore, be 
 
EAILEOAD COMPANY— EEAL ESTATE. 
 
 809 
 
 charged with negligence in permitting their children to ride on the street 
 cars, without escort, if the company consent so to receive them. East Saa- 
 tnaw St. Railway v. Bohn, N. S. xii. 745. 
 
 399. While a street railway company would not be liable to a person of 
 suitable discretion, who, being warned of the danger in riding upon the front 
 platform of the oar, should persist in doing so, yet in the case of a person 
 lacking such discretion, and to whom, consequently, negligence could not be 
 imputed, it would be the duty of the company, not to stop with a warning 
 but to compel such person to occupy the proper place in the car. Id. ' 
 
 400. A child four and a half years of age took a street car with his brother 
 eight years older, and both sat down on the front platform, with their feet on 
 the step. The conductor took the fare, and says he told the boys to go into 
 the car; but this was denied. There was no other interference with their 
 ndmg there. The younger boy, in some way not explained, got off the car 
 when m motion, and was run over. Held, 1. That the parent was not guilty 
 of negligence in permitting the children to take the cars alone. 2. That neg- 
 ligence was not imputable to the younger boy. 3. That it was not imputable 
 to the older boy, unless he was of an age and discretion to understand the 
 danger, and also the difSoulty of protecting both himself and his brother 
 against it.. 4. That negligence was imputable to the railway company in 
 permitting the boys thus to ride. Id. 
 
 401. Liable for negligence of driver of street car in assisting passengers to 
 get aboard. Brem v. Sixth Av. Railroad Co., N. S. iii. 498. 
 
 402. Where passenger is an infant. Id. 
 
 403. Measure of damages in such case. Id. 
 
 404. If a passenger is lawfully on the cars, the company is bound to carry 
 him safely, without regard to the kind of cars, or the payment of fare. Ohio, 
 ^c. Railroad Co. v. Muhling, N. S. iii. 812. 
 
 405. Charging of illegal fare in New York. Chase v.iV. Y. Central Railroad 
 Co., N. S. iii. 635. 
 
 406. The Massachusetts Statute, 1840, ch. 85, J 1, providing for damages 
 for property set on fire by sparks, &c., extends to personal property. Ross 
 T. Boston, §c., Railroad Co., N. S. iii. 251. 
 
 KAPE. 
 
 _ 1. Although rape can only be accomplished by force, and with the utmost re- 
 sistance on thepartof the woman, yetno more resistance can be required in any 
 case than her condition will enable her to make. Peoples. Cornwell, N. S. v. 339. 
 
 2. Force is a, necessary element of the crime of rape, and the degree of 
 force used in ordinary sexual intercourse is not sufficient to constitute crime. 
 Walter v. The People, N. S. vi. 746. 
 
 3. To constitute rape, it is not necessary that the connection with the 
 woman should be had against her will; it is sufficient if it be without her 
 consent. Reg. v. Fletcher, 0. S. vii. 512. 
 
 4. The prisoner had carnal knowledge of a girl thirteen years old by force. 
 The girl was incapable of giving consent from defect of understanding, and 
 it was not shown that the act was done against her will. A conviction was 
 sustained. Reg. v. Fletcher, vii. 703. 
 
 READY MONEY. 
 
 Includes cash in hand, but not promissory notes. See. Bequest. 
 
 REAL ESTATE. See Lien, Gkound Rent, Water-Coubse. 
 
 1. A house consisting of two distinct tenements, occupied in severalty, 
 should not be described in such an indictment as the dwelling-house of both oc- 
 cupants, as such a description implies a joint occupancy. States. Tool,'S.?<. i. 244. 
 
 2. The fragments of a building blown down by a tempest are not thereby 
 converted into personalty, but pass to the purchaser of the realty at sheriff's 
 sale. Rogers v. GiWnger, 0. S. vi. 430. 
 
 3. The English doctrine of uses as an element in the American Law of 
 Conveyance. Subject discussed, 0. S. v. 641 . 
 
 4. To convert land into money under a will, the direction to sell must be 
 imperative. Anewalfs Appeal, N. S. ii. 505. 
 
 5. Neither at the common law, nor by the statutes of Ohio, can a convey- 
 ance of real estate be sustained unless there is a valuable or good considera- 
 tion named in the deed. Thompson v. Thompson, N. S. vi. 26, 
 
810 EEAL ESTATE. 
 
 6. A pecuniary consideration is essential to uphold a deed of bargain and 
 sale. The consideration of love and affection is sufficient to uphold a cove- 
 nant to stand seized to uses. Thompson v. Thompson, N. S. vi. 2ti. 
 
 7. In the latter case the grantee must be of the blood of the grantor ; con- 
 sanguinity, not affinity, is the rule. Thus, a deed to a, son-in-law for the 
 love the grantor bears to the grantee and his wife, there being no grant to 
 the wife, is not sufficient to sustain the conveyance. Id. 
 
 8. Conveyances of real estate in Ohio partake of the nature of feoffment, 
 bargain and sale, and covenants to stand seized to uses. The usual form em- 
 bodies parts of all these assurances, but neither controls, absolutely, the 
 grant. Id. » 
 
 9. Possession of land by a grantor, as notice of equities in him against his 
 own conveyance. Dawson v. Bank, N. S. vi. 638. , 
 
 10. Assertion of title by the possessor of land is an important circumstance, 
 indicating adverse possession and ouster of the real owner, and the absence 
 of such assertion may be an important circumstance, indicating that the pos- 
 session is not adverse. But the question of ouster must depend upon all the 
 circumstances of the case, and it is not essential that tlie possessor should 
 hold the land, claiming it as his own. Such claim of ownership is not, as 
 matter of law, an indispensable element of adverse possession. Johnson v. 
 Gorham, N. S. xii. 271. 
 
 11. Where one has the right to use land for certain purposes, his occupa- 
 tion must be presumed primS, fade to be in accordance with his legal right. 
 Mowe V. Stevens, N. S. xii. 667. 
 
 12. In a writ of entry, if the tenant disclaims a part or all of the land de- 
 manded, he thereby admits the demandant's title ; but such admission and 
 estoppel is not final and conclusive until after judgment, and he may amend his 
 disclaimer at any time before judgment. Wells v. Manufacturing Co., N. S. xi. 56. 
 
 13. Surplus of proceeds of decedent's lands sold to pay debts remains 
 realty. Oberle v. Lerch, N. S. vii. 765. 
 
 14. Law of state where lands lie will determine the question of real or 
 personal estate, though owner be resident of another state. Id. 
 
 15. An owner of real estate is not without a remedy for injuries done to 
 the same, under chapter 118 of the Statutes of Kansas, because he is not in 
 possession at the time. Mtzpatrick v. Gebhart, N. S. x. 668. 
 
 16. A parol license to enter into the possession of land is no defence to an 
 action by the owner of the land to recover the possession. Eggleston v. The 
 New York and Harlem Railroad Company, N. S. i. 311. 
 
 17. Such a license is not irrevocable, so as to bar the grantor or his heirs 
 from recovering the possession. It will be revoked by a conveyance of the 
 land to another person, or by the death of the grantor. Id. 
 
 18. The doctrine of adverse possession is to be taken strictly. Such a 
 possession is not to be made out by inference, but by clear and positive proof. 
 Every presumption is in favor of possession in subordination to the title of 
 the true owner. Huntingdon v. Whaley, N. S. i. 244. 
 
 19. No title by such possession can be acquired unless the party has the 
 actual use and occupation of the land, nor unless the owner has so lost his 
 possession that he cannot maintain an action to recover it. Id. 
 
 20. Where the divisional fence between the lands of A. and B. was a stone 
 wall three feet wide, set wholly on the land of A., and B. had for more than 
 fifteen years held exclusive possession of his own land up to the wall, treat- 
 ing the centre of the wall as the dividing line, and believing it to be so, but 
 with no knowledge of such claim on the part of A., and no other possession 
 of the ground covered by the wall, it was held that there was not a sufficient 
 adverse possession to vest in B. a title to the centre of the wall. Huntingdon 
 V. Whaley, N. S. i. 244. 
 
 21. Real estate purchased by partnership for partnership purposes, will, 
 if necessary, be subjected to the payment of their debts. Offutt et al. v. Scott, 
 N. S. xii. 575. 
 
 22. Where a vessel had been engaged in prohibited trade, a forfeiture was 
 decreed by virtue of the regulations established by the Secretary of the 
 Treasury. United States v. Schooner Francis Hatch, N. S. iv. 289. 
 
 '23. Taking of a vessel by a privateer under the flag of the so-called Con- 
 federate States, is a capture within the exception of the policy. Fifieldy. In- 
 surance Co., N. S. iv. 255. 
 
REAL ESTATE— REBELLION. 811 
 
 24. The rebel army during their oooupation of a portion of the United 
 States, were mere trespassers. Lucas v. Bruce et al., N. S. iv. 95. 
 
 25. Property captured on laud by the officers and crews of a naval force 
 is not "maritime prize." Alexander's Cotton, N. S. iv. 576. 
 
 26. Judgment rendered by a tribunal under authority of a rebel state 
 government, void and execution quashed. A'oie to Hughes v. Litsey comment- 
 ing Filkins V. Bawkins, N. S. v. 160. 
 
 27. Authority of military commissions in a state not engaged in rebellion 
 nor invaded, where Federal courts open. Ex parte Milligan, N. S. vi. 567. 
 
 28. Partnership lands, personal property. Moran v. Palmer, N. S. v. 62. 
 
 29. Construction and validity of agreement for purchase of real estate. 
 De Beerski v. Paige, N. S. vi. 564. 
 
 30. At common law the heir was liable on the covenants of his ancestor in 
 which he was specially bound ; and as real estate alone descended to him, 
 his liability was limited to that. Hall v. Martin et al., N. S. vi. 757. 
 
 31. Timber trees cut down, but lying on the ground, will pass by deed of 
 the land. Brack'eit v. Goddard, N. S. vii. 442- 
 
 32. Where real estate held jointly by husband and wife is voluntarily con- 
 verted into money it belongs to the husband, and becomes liable to his credit- 
 ors. F. S; M. Bank v. Gregory, N. S. vii. 121. 
 
 33. Vendee not entitled to recover back the part of the purchase-money 
 paid, where a vendor of real estate on default in the terms of p.ayment by 
 vendee, goes into a court of equity and the contract declared void and of no 
 effect. Cansbrough et al. v. Peck, N. S. vii. 74. 
 
 34. In making sales of real estate to iix contract liability. Mdridge v. 
 Bliss, N. S. X. 478. 
 
 35. A railroad cannot lawfully take, hold, and deal in real estate for other 
 purposes and to a greater extent than it is authorized so to do by its charter. 
 Laud V. Hoffman, N. S. xii. 143. 
 
 36. With reference to the power to take and hold real estate by corpora- 
 tions. Hayward v. Davidson, N. S. xiii. 254. 
 
 37. Where partners purchase real estate with the money of the firm as 
 partnership property. Appeal of Belle D. Foster, N. S. xiii. 300. 
 
 88. Person in possession of land under contract to purchase may maintain 
 action for injury to his interest. Honsee y. Hammond, N. S. ii. 764. 
 
 39. Devise of " goods, chattels, rights and credits, and effects '' does not 
 pass realty. Brown v. Furman, N. S. iii. 688. 
 
 40. Under statutes giving power to a married woman to enjoy, contract, 
 &c., her property, a husband can convey real estate to his wife by deed di- 
 rectly. Amperse v. Burdeno, N. S. v. 275. 
 
 41. Mother taking real estate by devise from husband becomes stock of 
 new descent. Opdykis Appeal, N. S. v. 255. 
 
 42. The duty of a real estate broker consists in bringing the minds of the 
 vendor and vendee to an agreement concerning the sale. Barnard v. Monnot, 
 
 ' N. S. vi. 209. 
 
 43. Therefore, where the parties are brought together by the broker and 
 agree upon a sale at a certain price and upon certain terms of payment, the 
 broker has earned his commissions, though the sale afterwards fails through 
 the unwillingness of the party who employed him to fulfil his bargain. Id. 
 
 44. It is not necessary that a binding contract, in writing, should be 
 entered into by the parties, before the broker becomes entitled to commis- 
 sions. Id. 
 
 EE-ARGUMENT. 
 
 The Supreme Court will not order the re-argument of a case once decided 
 on motion of counsel, but only where some one of the majority of the court 
 express a doubt and desires a re-argument. It makes no difference that the 
 decision of aifirmanoe was by a divided court. Aspden v. Aspden, 0. S. i. 335. 
 
 EEBELLION. 
 
 1. Commercial intercourse during the late rebellion, interest suspended. 
 Tuckefr v. WaUon, N. S. vi. 220. 
 
 2. Statutes of limitation are suspended during a state of war. Jackson 
 Ins. Co. V. Stewart, N. S. vi. 732. 
 
 3. Where real estate in Kentucky was sold under an execution during the 
 
812 EEBELLION— EECEIVEE. 
 
 rebellion, and bought by one representing that he was bidding for the owners. 
 Held, that the owners might recover as on a tort. Hard v. Crutcher, N. S. vi. 
 165. 
 
 4. Claimants under the Act of March 12, 1863, are not deprived of the 
 benefits of the act because of aid not voluntarily given to the rebellion. 
 United States v. Padelford, N. S. ix. 443. 
 
 5. Statutes of limitation do not run during the rebellion against persons 
 residing out of the rebellious states. The Protector, N. S. ix. 516. 
 
 6. The late civil war was a public war, and there was no difference in the 
 rights of the parties. Glarlc v. Dick, N. S. ix. 739. 
 
 KECEIPT. See Contbaot, Stamp Law. 
 
 1. A mere receipt not a contract of sale. Mlkins Y.Whyland, N. S. ii. 317. 
 
 2. Is open to contradiction, explanation, or correction. Russell v. Church, 
 N. S. X. 542. 
 
 3. A written acknowledgment that the subscriber had received a promis- 
 sory note, and that the maker was to have certain shares of stock when 
 issued, is not a contract for the future sale of the stock, but recognizes the 
 shares as the consideration of the note. Sope Iron Works v. Holden, N. S. 
 X. 668. 
 
 4. A written receipt is not conclusive. Freeholders v. Thomas, N. S. ix. 320. 
 
 5. Of money in settlement of damages for injury, good unless signature 
 procured through mistake or fraud. Ourley y. Harris, N. S. vi. 61. 
 
 6. A receipt for money, though stated to be in full, may be contradicted 
 by parol evidence. Howard et al. v. Norton, N. S. xii. 667. 
 
 7. A receipt for the note of a third person is explainable, unless it is 
 stated that it is in full payment of the debt on which it is to be applied, 
 when it will be considered as an accord and satisfaction. Id. 
 
 8. A receipt for bonds which describes them by their numbers and 
 amounts, and states that, " These bonds are held subject to the order of J, 
 L. P. at ten days' notice," makes it the signer's duty to return the same 
 bonds. Palmer v. Hussey, N. S. xiii. 262. 
 
 9. A refusal to return on demand is a eonVersion. Id. 
 
 10. A receipt is primd facie evidence that the sum of money expressed in 
 it was paid according to its tenor. Vint v. Heirs of King, 0. S. ii. 712. 
 
 11. The receipt of an internal revenue collector is proper evidence to show 
 payment of the tax. Randall v. Kelsey, N. S. xiii. 649. 
 
 12. A receipt in full of a demand, is primd facie perfect defence. Ouyette 
 V. Town of Bolton, N. S. xiii. 777. 
 
 13. A purchaser who relies on a tax receipt given by a collector of taxes 
 for the amount due in buying land, cannot maintain an action against the 
 collector if he suffers loss. Kohl v. Love, N. S. xiii. 396. 
 
 14. A receipt for taxes given on receiving a check. Kuhl y . Mayor of 
 Jersey City, N. S. xii. 190. 
 
 15. A tax receipt is no evidence of who paid the money. Denman v. 
 McMahin, N. S. xii. 532. 
 
 16. Receipts are only primd facie evidence of the facts, when they were 
 mere acknowledgments of delivery or payment. Batdorf v. Albert, N. S. viii. 
 697. 
 
 17. The receipt of an express company for goods delivered to them is not 
 subject to a stamp. Belger v. Dinsmore, N. S. viii. 188. 
 
 18. Parol evidence is admissible to explain a receipt which does not con- 
 stitute a contract. Randall v. Kelsey, N. S. xiii. 649. 
 
 RECEIVER. 
 
 1. Actions against, by adversary claimants of property. Note to Morrill 
 V. Nbyes, N. S. iii. 30. 
 
 2. No action lies by a receiver against the assignee under an assignment 
 for benefit of creditors, for failure to perform his duty. La Follett v. Akin, 
 N. S. xii. 406. 
 
 3. The fact that a receiver has been discharged is no answer to a motion 
 for leave to bring an action against him for property which he sold after 
 notice of plaintiif's claims. MiUer y.Loeb, N. S. xii. 599. 
 
 4. Where, after suit brought by the attorneys of a bank on a mortgage, a 
 receiver of the bank is appointed, the attorneys have no right of set-off 
 
EECEIVEE. 813 
 
 against the proceeds for their services. The Bowling Oreen Savings Bank v. 
 Todd it al., N. S. xii. 599. 
 
 5. In proceedings supplementary to execution the court does not appoint 
 more than one receiver of the property of the judgment-debtor, however 
 numerous may be the creditors' bills or supplementary proceedings against 
 him. Myrick v. Selden, N. S. i. 507. 
 
 6. The receiver of a corporation, duly appointed and qualified, is the trus- 
 tee of all the creditors. lAbby v. Rosekrans, N. S. ix. 319. 
 
 7. It is no ground for setting aside a sale made by a receiver, that the 
 creditor obtaining the order was a justice of the court granting it. Id. 
 
 8. An order directing a receiver of a corporation how to sell real estate, 
 cannot be questioned by a stooltholdor in a, collateral action. Libby v. Rose- 
 krans, N. S. ix. 326. 
 
 9. Signing bond to, is an admission not only of obligee's character as re- 
 ceiver, but of the right to sue. Scott v. Duncombe, N. S. vii. 381. 
 
 10. Where property is legally in possession of a receiver appointed by 
 the court, the court must protect his possession not only against violence, 
 but against suits at law. Matter of Day, on Complaint of Benson, N. S. xiii. 
 782. 
 
 11. If receiver is in possession of articles belonging to another, the remedy 
 of latter is by application for redqess to the court, he cannot take them and 
 convert to his own use. Id. 
 
 VI. If owner tal^es them from receiver's possession he is guilty of a con- 
 tempt. Id. 
 
 13. Receiver's title cannot be tried in a proceeding by him for contempt, 
 but only in an action against him. Id. 
 
 14. A final order in a proceeding for contempt ie appealable. Id. 
 
 15. The claim for dividends improperly declared by an insolvent banking 
 corporation, belongs to creditors, and not to the receiver, and the right of 
 action is in them. Butterworth v. O'Brien, N. S. iii. 60. 
 
 16. Receiver may charge in his assessment for expenses of making and 
 collecting the same. Sands^. Boutwell, N. S. iii. 636. 
 
 17. Equity will not decree dissolution and appoint a receiver, unless on 
 good grounds. Slemmer's Appeal, N. S. viii. 637. 
 
 18. In a suit to dissolve, a receiver in general will be appointed. Seighortner 
 V. Weisenberg, N. S. ix. 388. 
 
 19. A receiver may sue for demands due the bank in his own name ns 
 receiver. Bank v. Kennedy, N. S. xiii. 333. 
 
 20. Where there are liens on the property of a railroad company. The 
 appointment of a receiver is generally ruinous. Coe, Trustee v. The Cleveland 
 and Pennock, 0. S. vi. 27. 
 
 21. Receiver cannot maintain an action which the parties he represents 
 could not, and he must show their right and authority. Coope v. Bowles, N. 
 S. iv. 122. 
 
 22. A receiver, appointed by the Circuit Court of the United States for the 
 southern district of Ohio, may sue in an Ohio state court. 0. S; M. R. R. Co. 
 V. /. ^ C. R. R. Co., N. S. v. 733. 
 
 23. Receiver not to be appointed where corporation not a party to bill, 
 Gravenstine' s Appeal, N. S. v. 251. 
 
 24. The receiver of a borrower paying usury may sue for excess of inter- 
 est. Falen v. Johnson, N. S. vi. 127. 
 
 25. A receiver of all tha mortgaged property having been appointed, the 
 land was in legal custody, and could not be levied on. Robinson v. G. W. ^ 
 Ail. R. R. Co., N. S. X. 796. 
 
 26. Whether land should pass into hands of a receiver. Id. 
 
 27. The decision of the receiver upon the validity of a claim is not final. 
 Bank of Bethel v. Pahqurogua Bank, N. S. xi. 125. 
 
 28. Action by receiver. Osgood v. Layton, N. S. vii. 252. 
 
 29. Has no legal title to the assets of the estate, and cannot maintain trover 
 until they have actually passed into his possession. Singerly v. Fox, N. S. 
 
 xiv. 126. 
 
 30. Landlord cannot set off rent due, in a suit by receiver for price of 
 goods sold on premises, to him. Id. 
 
 31. Receiver may maintain suit in his own name. Id. 
 
814 EEOEIVER— EECOED. 
 
 32. A receiver will only be appointed on bill filed for that purpose, and 
 not against a complainant upon defendant's application. Leddd T. Starr, N. 
 S. viii. 185. 
 
 33. A. and B. were indicted, A. for having stoftn certain goods, and B. for 
 having received the same. A. having plead guilty to the larceny, B. was 
 found guilty by the jury of receiving, Held, good. Reg. i. Miller, 0. S. 
 ii. 506. 
 
 RECOGNISANCE. 
 
 1. Recognisance to appear and "not depart without leave of the court" 
 is forfeited, if prisoner appears and enters on his trial, but departs before it 
 is finished. People v. McCoy, N. S. ii. 702. 
 
 2. Good answer to, that defendant was in military service at day of ap- 
 pearance. People V. Cushney, N. S. v. 382. 
 
 3. Acknowledgment of execution of, by prisoner's sureties before judge of 
 another county. People v. Surlbutt, N. S. v. 382. 
 
 RECORD. 
 
 1. When truth of magistrate's record of a criminal case cannot be im- 
 peached. Kelly V. Dresser, N. S. vi. 63. ' 
 
 2. Where a mortgage is foreclosed against all persons having any title of 
 record, a prior unrecorded deed is void against the sheriff's vendee in the 
 foreclosure suit. Ehle v. Brown et al., N. S. xii. 121. 
 
 3. Unrecorded deed claimed by a purchaser for valuable consideration. 
 Coon V. Browning, N. S. xii. 531. 
 
 ' 4. In an action of warranty against the heirs of the covenantor, the record 
 of the ejectment suit is admissible as evidence to prove the eviction. Q-is- 
 field V. Storr, N. S. xii. 66; 
 
 5. The record in the ofiice of the register of deeds of a patent is admissi- 
 ble, without proof that the original is lost. Bernstine v. Smith, N. S. xii. 730. 
 
 6. The records of the courts in Alabama during the war are provable in 
 the same manner as those of the present courts. Copeland, Adm'r v. Winston, 
 N. S. xiii. 397. 
 
 7. The record of a judgment obtained in a probate court of Ohio, in a 
 proceeding upon habeas corpus, is within the provisions of the Act of Congress 
 of May 26, 1790, providing for the authentication of records from the sister 
 states. Taylor v. Hinchman, 0. S. v. 424. 
 
 8. Eflfect of fraud in record. Subject discussed, 0. S. iv. 1. 
 
 9. The lien docket is -not the record of judgments, but only their essential 
 index ; and the entry in the lien docket does not make the judgment, but 
 only refers to one supposed to be already. Ferguson ^ Belts v. Staver, N. S. 
 i. 691. 
 
 10. It is competent to show hy parol evidence the contents of a lost record. 
 Ferguson v. Tutt et al., N. S. xi. 270. 
 
 11. A paper, not entitled to be recorded by law, will not operate as con- 
 structive notice by placing it on record. Glenn v. Davis, N. S. xi. 532. 
 
 12. The failure of a recorder to enter in the index the names of parties to 
 a deed properly recorded, does not prevent the record being notice to subse- 
 quent purchasers. Bishop v. Schneider, N. S. i. 132. 
 
 13. A purchaser claiming title against a prior deed, as a bond fide purchaser 
 without notice, must prove want of notice, and payment of the value before 
 notice. Id. 
 
 14. The records in public offices in other states may be proved by a sworn 
 copy or certificate, according to the Act of Congress. Cotidit v. Blachwell, N. 
 S. viii. 188. 
 
 15. As to the mode of authenticating judgments of justice of the peace 
 of one state to make them evidence in another, suggestions as to. 0. S. v. 
 576. 
 
 16. The clerk of a court has ex officio no right to complete, alter, or amend 
 the record of his predecessor. EochlandWater Co. v. Pilkbury, N. S. xii. 668. 
 
 17. If there is a failure to make a record of a judgment, it must be done 
 by petition to the court. Id. 
 
 18. Records of a town which holds land as a private corporation, unless 
 accompanied by possession, are not admissible to prove title. South Hampton 
 V. Fowler, N. S. xii. 669. 
 
EECOED— EEGISTEATION ACT. 815 
 
 19. The opinion of the court below and the facts in it are not part of the 
 record, and cannot be considered in the Supreme Court. Bartolett v. Dixon, 
 N. S. xiii. 389. 
 
 20. Where a writing is recorded as a separate paper, which refers to "the 
 within mortgages," but does not in any way describe or identify the mort- 
 gage, the record is no evidence or notice that the writing recorded was en- 
 dorsed upon any particular mortgage not recorded with it, as that is an ex- 
 trinsic fact not within the purview of the registry laws. Bassett v. Hathaway, 
 N. S. i. 185. 
 
 21. The record of a deed in one town is not constructive notice of the con- 
 veyance of land in another state. Perrin v. Seeds, N. S. iv. 55. 
 
 22. The journal of the warden of a prison is not a technical record in such 
 sense as to be the exclusive evidence of the fact that defendant was in a cer- 
 tain prison at a certain time. Hauser v. Comm., N. S. v. 668. 
 
 23. When church record of a baptism, admissible in evidence. Kennedy v. 
 Doyle, N. S. v. 509. 
 
 RECORDER OF DEEDS. 
 
 1. The liability of a recorder of deeds on a false certificate of search only 
 extends to the party taking the certificate, and does not entitle a future 
 purchaser to recover against him. Commonwealth v. Harmer, N. S. v. 214, 
 
 2. The sureties of the recorder of deeds are not liable for false searches. Id. 
 
 RECORDING ACT. 
 
 1. Mortgage by which the terms of loan was regulated need not be re- 
 corded. Cadwallader v. Montgomery, 0. S. iii. 169. 
 
 2. A deed acknowledged by the husband is entitled to record notwith- 
 standing defective acknowledgment by the wife. Rayner v. Lee, N. S. x. 601. 
 
 3. An assignee and creditors are not purchasers for- value within the Re- 
 cording Act of March 18, 1775. Spademan v. Ott, N. S. x. 534. 
 
 4. An unrecorded deed is good between the parties and parties with notice 
 thereof. Maupin v. Emmons, N. S. x. 750. 
 
 5. Records of a foreign government are authenticated as such only during 
 its existence as a foreign power. Steere v. Tenney, N. S. xi. 660. 
 
 6. Conveyances of government lands in, by governor and judges, not 
 ■within ordinary recording laws. Moran v. Palmer, N. S. v. 62. 
 
 7. If lease is invalid by not recording, a sub-lease of same premises is also 
 BO. People V. Stiner, N. S. v. 569. 
 
 8. Record of a mortgage to secure future advances. La Due v. R. R. Co., 
 N. S. V. 59. 
 
 9. One first recorded presumptively the prior lien. Freeman v. Schroeder, 
 N. S. V. 190. 
 
 10. What constitutes a honS, fide purchaser within the meaning of the re- 
 cording acts. Webster v. Van Steenbaugh, N. S. vi. 192. 
 
 11. Mere recording without knowledge of or delivery to grantee is not 
 legal delivery, and subsequent ratification by grantee will not cut out an in- 
 tervening mortgage for value. Parmelee v. Simpson, N. S. vii. 60. 
 
 12. Mortgages in N. York, when stamps omitted without intent to evade 
 the law, are merely filed, not recorded. Vail v. Knapp, N. S. vii. 511. 
 
 RECORD OF FOREIGN COURT. ... 
 
 Transcript of, is evidence. Slaughter v. Cunningham, 0. S. in. 56. 
 
 RECORDS OF OTHER STATES. 
 
 As to authentication of, see Ohio v. Hinchman, 0. S. v. i2A. 
 
 RECOUPMENT. 
 
 Subject discussed. 0. S. ix. 830. 
 
 RE-ENTRT. ,., ^ . .J t. . 
 
 Where the lease, by the non-payment of rent, did not become void, but 
 only voidable at the option of the lessor. Bowman v. Foot, N. S. i. 352. 
 
 REGISTRATION ACT. 
 
 1. Construction of the act of July 29th (1850), relating to the conveyance 
 of vessels. Reeder v. Steamship Oeorge's Creek, 0. S. iii. 232. 
 
 2. A recorded mortgage of vessel does not take priority over a subsequent 
 lien, obtained by a material man, for necessary supplies or repairs. Id. 
 
816 EEHEARING OF ARGUMENT— RELIGIOUS SOCIETIES. 
 
 REHEARING OF ARGTTMENT. 
 
 By Supreme Court. See Aspdenv. Aspdm, 0. S. i. 335. 
 
 RELATION. 
 
 The doctrine of relation being a fiction of law, is to be resorted to only for 
 the advancement of justice ; and has not been adopted as a rule when third 
 persons, who are not parties, or priries, might be prejudiced thereby. Pierce 
 T. Hall, N. S. ill. 503. 
 
 RELEASE. 
 
 1. General release discharges land from a condition not to build in a par- 
 ticular manner. Davis v. Ob&rteuffer, 0. S. iy. 423. 
 
 2. Pleading over admits that the release operated as averred. Id. 
 
 3. The release by the mortgagee of a portion of the land mortgaged with 
 the knowledge of a prior sale of another portion, will operate as to such 
 prior purchaser as a discharge pro tanto of the mortgage debt. Brown v. 
 Simons, N. S. iii. 154. 
 
 4. Release of part of condition — when equity will enforce it in modified 
 form. Clark v. Martin, N. S. v. 184. 
 
 5. General release will not include land previously conveyed by unrecorded 
 deed. Aqueduct Co. v. Chandler, N. S. v. 186. 
 
 6. A release to one of several joint trespassers will discharge all. Bailey 
 V. Berry, N. S. viii. 270. 
 
 7. After the liability of a sheriff has become fixed by the neglect of his 
 deputy, a mere agreement by the plaintiff not to commence proceedings, will 
 not operate as a release of the sherift''s liability. McKinley v. Tucker, N. S. a. 
 669. 
 
 8. A plea of release is not void because it fails to allege that it was ob- 
 tained without fraud. McClane, Adnix v. Shepherd! a Ex., N. S. x. 280. 
 
 9. Covenant may be released for one purpose, but not for all. Ledger v. 
 Stanton, N. S. iii. 691. 
 
 10. The effect of releases on contingent interests discussed. Note to Moore 
 X. Littel, N. S. iii. 152. 
 
 11. A voluntary release of an easement by an administrator does not bind 
 the estate nor the heirs. Movie v. Stevens, N. S. xii. 660. 
 
 12. Releases from cestuis que trust without a settlement of the trust account, 
 are looked upon by the law with jealousy. SharteVs Appeal, N. S. x. 352. 
 
 13. Where the relation of landlord and tenant exists, any release of the 
 rent must be by deed. Lyon v. Adde, N. S. xii. 261. 
 
 14. Equity will set aside a release given to a trustee. Crocker v. Pierce, N. 
 S. xiii. 128. 
 
 RELIGIOUS BELIEF. 
 
 1. As to school regulations violating constitution as to. See Com. v. Mc- 
 Laurin, 0. S. vii. 417. 
 
 2. Religious opinions necessary to a witness. See Witness. 
 
 3. Religion of parent — child to be raised in the belief of the parent. See 
 Reg. V. Clarke, 0. S. v. 537 ; and se4 In re Keller's Minors, 0. S. v. 561. 
 
 4. Authority of school committee to pass order for reading of Bible and 
 prayer. Spiller v. Wobum, N. S. .vi. 315. 
 
 RELIGIOUS SOCIETIES. 
 
 1. Right of government in — title to property of a divided congregation. 
 McGinnis et al. v. Watson et al., N. S. ii. 251. 
 
 2. A majority of a congregation must govern, but consistently with the 
 laws of the denomination. Suiter et al. v. Trustees, N. S. ii. 505. 
 
 3. Congregation joining another with an established form of government is 
 bound by the rules of the latter, and cannot secede by a majority vote of its 
 own members. Id. 
 
 4. Civil courts, in exerting their jurisdiction over religious societies, will 
 adopt their rules and enforce their polity in the spirit for which they were 
 designed. Harrison et al. v. Hoyle et al., N. S. xiv. 127. 
 
 5. The decisions and orders of such societies shall have the effect designed, 
 where public policy or the law is not contravened. Id. 
 
 6. The rule that an unincorporated association cannot take by devise or 
 gift, applies only to land or personalty where a permanent trust is created. 
 Ticknor'a Estate, N. S. iv. 269. 
 
EELIGIOUS SOCIETIES— EENT. 817 
 
 7. The statute of Michigan, relating to religioiiB oorporationa, does not 
 apply to foreign religious corporalions. Ticknor's Estate, N. S. iv. 2fi9. 
 
 8. In a grant to the inhabitants of a town, to be held by them and their 
 successors as a body politic and corporate, the title vests in the town as a 
 corporation. New Market t. Smart, N. S. iv. 390. 
 
 9. Property vested in a religious sooietv, is a charitable use. Schnor's Ap- 
 peal, N. S. xi. 262. 
 
 10. A church organized and endowed as belonging to any particular sect, 
 cannot break from that sect. Id. 263. 
 
 11. Where pendency of prior suit is set up to defeat another, the case must 
 be the same ; there must be the same rights asserted and the same relief 
 prayed for. Watson v. Jones, N. S. xi. 430. 
 
 RELIGIOUS TOLER.iTION. 
 
 Subject discussed in, The Com. v. Cronin, 0. S. iv. 465. 
 
 REMAINDER. 
 
 1. Liable to execution, if vested. Nichols v. Levi/, N. S. vii. 120. 
 
 2. Discussion of remainders. yValker's Theory of the Common Law, 0. S. 
 i. 577. 
 
 3. Where a residuum of personal estate is disposed of by a will in two parts, 
 and the first disposition is invalid, the sum does not go to the legatee of the 
 other part, but goes to the next of kin. Beekman v. Bonsor, N. S. i. 179. 
 
 4. And where the sum devoted to the invalid prior purpose cannot be as- 
 certained by reason of the failure of that purpose, or otherwise, the gift of 
 the remainder is void for uncertainty in the amount. Id. 
 
 5. The uncertainty whether a remainder will ever take effect in possession 
 will not prevent it from being a vested remainder, provided the interest be 
 fixed. It is the present capacity of taking effect in possession, if the pos- 
 session were to become vacant, which distinguishes a vested from a contin- 
 gent remainder. Therefore, though children may be born of the marriage, 
 or the wife may survive the husband, yet the right of the husband to the 
 slaves of the wife, under the statute, is vested by the marriage, as he is from 
 that time clothed with a present capacity of taking, though his right may be 
 defeated or interrupted by events subsequently occurring. Lyon v. Knott, 
 0. S. ii. 604. 
 
 6. In limitation of legal estates, where a remainder of inheritance is lim- 
 ited in contingency, by way of use. or by devise, the inheritance, in the mean- 
 time, if not otherwise disposed of, remains in the grantor and his heirs, or 
 in the heirs of the testator, until the contingency happens to take it out of 
 them ; and equity herein follows the law. Vint v. Heirs of King, 0. S. ii. 712. 
 
 REMARKABLE CRIMINAL TRIAL. 
 
 Of the watchman of Eldagsen, history of, 0. S. ix. 1. 
 
 REMOVAL OP CAUSES FROM STATE TO U. S. COURTS. 
 
 1. The fifth sect, of the Act of March 3, 1863, for the removal of causes to 
 U. S. courts is constitutional. McCormkk v. Humphreys, N. S. vi. 552; Ayres 
 y.R.R., N. S. vi. 719. 
 
 2. Subject discussed, N. S. ix. 1. 
 EENT. 
 
 1. Back rents to be accounted for in equity, in case of possession against 
 infant. Overruling Drummond v. Duke of St. Albans. Hicks v. Sallitt, 0. S. 
 iii. 314. 
 
 2. Mortgagee of a term of years, upon giving notice to one who holds a 
 prior under-lease of a portion of the premises, that by virtue of his mortgage 
 he shall claim the rent thereafter due, is entitled to recover the same. Bus- 
 sell V. Allen, N. S. i. 56. 
 
 8. Qumre, whether, under the present bankrupt laws of the United States, 
 goods of the estate, in the hands of the assignee, are distrainable for rent? 
 Be Appold, N. S. vii. 624. 
 
 4. Lease for years, with perpetual right of renewal, does not pass fee. 
 Page v. Usty, N. S. vii. 445. 
 
 5. A condition that lease shall become void on non-payment of the rent ; 
 failure to pay rent does not of itself render the lease void, but only voidable 
 at the option of lessor. Bowman v. Foot, N, S. i. 352. 
 
 52 
 
818 KENT— EEPLEVm. 
 
 6. A quit-claim deed of leased premises does not operate as a release of 
 rent already accrued. Johnson t. Muzzy, N. S. ix. 580. 
 
 7. Lessee of upper story is discharged from payment of rent by destruc- 
 tion of building by fire. Graves v. Berdan, N. S. iii. 700. 
 
 8. The assignee of a mortgage, on land subject to re-entry for non-pay- 
 ment of rent on a lease in fee, is entitled to tack the rent actually paid to 
 protect his interest. Robinson T. Ryan et al., N. S. iii. 58. 
 
 9. What will raise implied assent by tenant to landlord's notice of increase 
 of rent. Hunt v. Bailey, N. S. vi. 252. 
 
 10. Set-oflF in action for rent, for necessary repairs and damages. Myers 
 V. Burns, N. S. vi. 380. 
 
 11. After refusal to ratify lease by lessor's heirs, lessees may recover rent 
 paid in advance for an unexpired portion of term. Campen v. Shaw, N. S, vi. 319. 
 
 RENUNCIATION. 
 
 An executor who renounces his office, the renunciation being followed by 
 many years of total non-interference with the estate, is deemed also to have 
 renounced the trusts conferred by the will, which are personal and discre- 
 tionary. Beekman v. Bonsor, N. S. i. 179. 
 
 REPEAL. 
 
 An act of incorporation, in which the legislature have reserved the right 
 of repeal may be repealed by implication, upon the principle that every 
 affirmative statute is a repeal by implication of a precedent affirmative stalute 
 so far as it is contrary thereto. Union Branch R. R. v. East Term. S[ Georgia 
 R. R., 0. S. ii. 303. 
 
 REPLEVIN. 
 I. When, Bt, and Against Whom, Replevin may be Brought. 
 
 1. Will not lie against common carrier for detention of goods, coming law- 
 fully into his possession. Woodward v. Railway Co., N. S. vi. 384. 
 
 2. The owner of property disposed of, by the person. having it in charge, 
 may bring replevin without previous demand. Ballou v. O'Brien, N. S. x. 6ti9. 
 
 8. Will not lie for one who has actual possession of the property. Mickey 
 V. Hinsdale, N. S. iii. 248. 
 
 4. Where one mortgages his store of goods and refuses to perform the en- 
 gagement or give possession, replevin will lie. Boyles v. Rankin, 0. S. ii. 121. 
 
 5. In the cepit, can only be brought for injury to property in possession of 
 the plaintiff. Stockwell v. Phelps, N. S. vi. 127. 
 
 6. Lies against express company after tender of legal charges. Eveleth v. 
 Blossom, N. S. vii. 447. 
 
 7. Lies only against person having possession or control of goods. Rams- 
 dell V. Buswell, N. S. vii. 447. 
 
 8. May be maintained without previous demand against a bond fide pur- 
 chaser from one who had no right to sell. Prime v. Cobb, N. S. xiv. 463. 
 
 9. Such purchaser is not lawfully in possession. Id. 
 
 10. Replevin may be maintained for goods sold on Sunday. Tucker v. 
 Mowry, N. S. iii. 766. 
 
 11. Replevin by purchasei'. Weaver v. Darly, N. S. iv. 379. 
 
 12. If vendor retakes the goods improperly by replevin he may be treated 
 as a trespasser, and so it seems may his sureties in the replevin bonds. Hol- 
 brook V. Vose. N. S. iv. 602. 
 
 13. Owner cannot maintain action against an officer for taking goods under 
 replevin. Willard v. Kimball, N. S. v. 447. 
 
 14. A vendor of personal prope.rty, cannot set up in replevin there- 
 for, title in a third person at the time of the sale. Classen v. Cox, 0. S. ii. 
 509. 
 
 15. Will not lie to recover possession of goods seized under an execution 
 regular on its face, and issued by the proper authority. Westenberger v. 
 Wheaton, N. S. xi. 133. 
 
 16. An avowry that the taking of the goods was on premises leased for 
 which rent was in arrear, is s?ood inform, without an allegation that the dis- 
 tress was for that rent. Baird v. Porter, N. S. xi. 269. 
 
 17. Such avowry would be good in substance when the plaintiff had declared 
 in the Zfftinuit. Id. 
 
REPLEVIN. 819 
 
 18. The landlord has neither a special nor general property in goods dis- 
 trained for rent, sufficient to entitle him to possession after service of the re- 
 plevin. Baird v. Porter, N. S. xi. 269. 
 
 19. That the goods were taken as a distress is no justification under «• 
 declaration in the detinet, Id. 
 
 II. Of the Wkit of Replevin and PEOOEEDiNas undee it. 
 
 20. Writ need not state value of goods. Pomeroy v. Trimpa-, N. S. iv. 318. 
 
 21. The return upon a replevin writ should state precisely what property 
 is thereby replevied ; if it does not, the sureties on the replevin bond are not 
 liable to return what was not taken. Miller v. Moses, N. S. ix. 127. 
 
 22. The right to the possession, is all that is necessary to maintain re- 
 plevin. Sprague v. Clark, N. S. viii. 510. 
 
 23. The right to an immediate possession of the property is essential to 
 maintain replevin. Curd v. Wimder, 0. S. iv. 692. 
 
 III. Proceedings on a Claim and Plea of Propeett. 
 
 24. The plea of property in a replevin suit, puts the plaintiff on proof of 
 property in himself, and any evidence tending to show he is not the owner is 
 legitimate. Constantine v. Foster, N. S. xii. 197. 
 
 25. Where the averment of ownership by the plaintiff is traversed, he is 
 put on proof of title against the world. Id. 
 
 26. Under such an issue the defendant may prove property in a third per- 
 son. Id. 
 
 27. What is not a defence to the action. Pomeroy v. Trimper, N. S. iv. 318. 
 
 28. Judgment being for damages only, the sheriff is not liable by reason 
 of failure to justify of sureties for delivery of the property. Gallarati v. 
 Orser, N. S. iv. 190. 
 
 29. In avowry in replevin for rent in arrear, the rent reserved must be 
 accurately stated ; rent in arrear need not be. Phipps v. Boyd, N. S. vii. 316. 
 
 30. Averments and evidence in such case. Id. 
 
 31 . Property bond. Death of plaintiff. Liability of defendant. Emerson 
 v. Booth, N. S. vii. 766. 
 
 32. A factor who accepts a bill, drawn against a particular consignment of 
 merchandise, which has been so far executed as to be placed in the hands of 
 a third person to be delivered to him, acquires thereby a property in the 
 goods, which will enable him to maintain replevin against an attaching 
 creditor of the consignor, to whom the officer making the attachment has 
 delivered the goods. Ifesmiih et al, v. The Dyeing, Bleaching, and Calendering Co., 
 0. S. i. 82. 
 
 33. No bill of lading, or other formal document, is necessary to create the 
 title in such case, nor is it necessary that the depository should be employed 
 by the consignee, nor that he should know the particulars of the consignee's 
 title. Id. 
 
 IV. Pleadings, Judgment, and Execution and herein of Damages. 
 
 34. In replevin the verdict need not describe the property more specifically 
 than the complaint. Anderson v. Lane, N. S. a. 205. 
 
 35. Where the verdict is for the plaintiff, and it does not appear that he 
 has already the possession, the judgment should be in the alternative, for the 
 possession of the articles or their value. Ward v. Maslerson, N. S. xii. 535. 
 
 36. Where the verdict is partly for the plaintiff, and partly for the defend- 
 ant, and it does not appear that defendant's possession has been disturbed, 
 the defendant is entitled to no judgment. Id. 
 
 37. Judgment cannot be entered for a greater sum than is stated in the 
 petition. Id. 
 
 38. Where plaintiff elects to take the value of the property with damages for 
 detentions, the damages are same as in trover. Bigelow v. Doolittle, N. S. xiv. 326. 
 
 39. The damages are the interest on the value from time of taking, with an 
 allowance for the use of the property Id. 
 
 40. The court may order remission for anything in excess of this. Id. 
 
 V. Liability of Sheriff. 
 
 41. Where replevin is brought against a sheriff for certain articles levied 
 on by him under an execution, and there is a verdict for the sheriff, the dam- 
 ages should be for the value of the property and not for the amount of the 
 execution. Buck v. Remsen, N. S. vi. 125. 
 
820 EEPLEVm— EES ADJUDICATA. 
 
 VI. Replevin Bond, and Sitreties upon it. 
 
 42. £on& fide purchaser — demand. Trud t. Anderson, N. S. ii. 126. 
 
 43. A surety on a replevin bond is not estopped by tlie recitals therein to 
 show how much of the property mentioned in the writ was actually replevied, 
 ■when the officer's return is indefinite in this particular. Miller y. Motet, N. 
 S. ix. 127. 
 
 44. Action on replevin bond. Tack v. Motet, N. S. vii. 447. 
 
 45. Title to property in replevin not changed, by issuing writ and giving 
 bond. Keyter v. Stein, N. S. viii. 576. 
 
 46. Surety in replevin bond who takes possession of property, has no belter 
 rights than plaintiff in the suit. Id, 
 
 KES ADJUDICATA. 
 
 1. A judgment between the same parties is not a bar, unless the former 
 suit was identically for the same cause of action. Miller v. McManis, N. S. 
 xii. 323. 
 
 2. A plea of a former recovery, is not sustained by the record of a judg- 
 ment on an agreement of a different date. Id. 
 
 3. Where the pendency of prior suit is set up to defeat another, the cote 
 must be the same ; there must be the same parties, or at least such as repre- 
 sent the same interest; there must be the same rights asserted, and the same 
 relief prayed for. This relief must be founded on the same facts, and the 
 title or essential basis of the relief must be the same. Watton v. Jonet, N. S. 
 xi. 430. 
 
 4. The property which is the subject-matter of dispute being in possession 
 of the marshal of the Louisville Chancery Court as receiver, this court will 
 not interfere with his possession, nor will it enjoin from receiving it parties 
 to whom the marshal is ordered by the Chancery Court to deliver it. Id. 
 
 5. Where a subject-matter of dispute is strictly and purely ecclesiastical in 
 its character ; matter which concerns theological controversy, church dis- 
 cipline, ecclesiastical government or the conformity of the members of the 
 church to the standard of morals required of them, the ecclesiastical tribunal 
 is the judge of its own jurisdiction, and its decisions upon that subject, aa 
 well as on the merits of the case, are conclusive upon the civil courts. Id. 
 
 6. The cases of ecclesiastical matters which come before civil courts clas- 
 sified and discussed by Millek, J. Id, 
 
 7. A judgment in a former action is no bar to another action, where the 
 point relied on as adjudicated was ruled out of the defence in the first suit. 
 Yatet V. I/yon, N. S. xi. 331. 
 
 8. A plea of former adjudicata is good on demurrer. State ex rel. Combt v. 
 Sudton, N. S. xii. 597. 
 
 9. A decree, in a suit establishing priority of liens, is not binding on a 
 stranger to such suit, where the decree was rendered without the presence 
 of the necessary parties. Hemminway v. Davis, N. S. xiv. 56. 
 
 10. Where the meaning of a railroad contract has been settled in a judicial 
 proceeding, the question is concluded in all subsequent suits. Tioga Railroad 
 V. Blotsbwg Sf Corning Railroad, N. S. xiv. 197. 
 
 11. Where items of set-off are allowed to defendant by an alderman and 
 judgment rendered for balance due, suit on such items is barred by the 
 judgment. Gilbert v. Earl, N. S. xiv. 756. 
 
 12. It is competent to show of what a judgment is made up of, by evidence 
 aliunde. Id. 
 
 13. Judgment in a suit upon joint and several note in favor of one surety 
 ■will not bar suit against another, unless the defence in first was an ex- 
 tinguishment of cause of action, or the defences are identical. Hill v. Morte, 
 N. S. xiii. 257. 
 
 14. Though a former suit may not operate strictly as ret adjudicata, yet it 
 may be referred to as an element by which a conclusion in accordance with 
 its result may be assisted. Hume v. Beale's Bxecutrix, N. S. xiii. 329. 
 
 15. In an action for the keep of a horse, the defendant showed that he had 
 previously recovered judgment against the plaintiffs for the use of his horse 
 while it was being kept by them. The presumption was that the damages 
 had been assessed in the first action on the basis of allowing the claim for the 
 keep of the horse, and the claim was merged. Bemit v. Jenningt, N. S. xiii. 
 710. 
 
RES ADJUDICATA— EEWARD. 821 
 
 16. A judgment for the full amount of the contract price for digging a cel- 
 lar is no bar to a subsequent recovery of damages for breach of contract in 
 not having done it within specified time. PavmpoH v. Hubbard, N. S. xiii. 777. 
 
 RESERVATION. 
 
 An exception in a grant of lands in these words, " excepting and reserving 
 out of the said piece of land, so much as is necessary for the use of a grist- 
 mill on the east side of the road, at the west end of the said mill dam," ia a 
 good exception. Mathews v. Mathews, 0. S. iii. 117. 
 
 RESIDENCE. 
 
 The term " residence " in the constitution is the same as domicil. Chase v. 
 Miller, N. S. ii. 146. 
 
 RESISTANCE. 
 
 To the constituted authorities, even when acting without legal right, see 
 Constitutional Law. 
 
 RESPONDENT SUPERIOR. 
 
 Doctrine of, does not extend to the injury received by one servant by the 
 carelessness of another. Bonner v. R. R. Co., 0. S. iii. 637. 
 
 REVENUE ACTS. 
 
 1. "Market value at place," in Act of March 3, 1863, means country 
 where bought or manufactured. Cliquots Champagne, N. S. v. 507. 
 
 2. In a proceeding for condemnation of whiskey, the fact that it had 
 passed into the hands of a bonSt fide purchaser before the commencement of 
 the suit, will not avail the claimant. U. S. v. 56 Barrels of Whiskey, N. S. vi. 23. 
 
 3. Such license is no bar to indictment under state law. Fervear v. Com- 
 monwealth, N. S. vii. 123. 
 
 REVERSAL. 
 
 Of decision, not to be made by an appellate judge unless he is thoroughly 
 persuaded that there has been error. Attorney- General v. The Corporation, 0. 
 S. V. 506. 
 
 REVERSION AND REMAINDER. See Limitation. 
 
 1. The estate in remainder of an infant will not be sold when the benefit 
 is doubtful. In the matter of Sale of Lands of Steele, N. S. viii. 126. 
 
 2. The accumulated or surplus or undivided earnings of an incorporated 
 company are part of its capital, and. as such belong to the remainder-men. 
 Van Doren v. Van Doren's Thistee, N. S. viii. 189. 
 
 3. A cestui que trust, whose interest is reversionary, is not bound to assert 
 his title until it comes into possession. He is not, however, less capable of 
 giving his assent, by acts or otherwise, to a breach of trust, by reason of his 
 interest being in reversitm. Zife Association v. Siddall, N. S. i. 175. 
 
 REVERTER. 
 
 1. Right of reverter, belonging to grantor on condition subsequent, is 
 extinguished by deed to a third before entry for breach. Rice v. Railroad, 
 N.'S.vi. 320. 
 
 2. Railroad company purchased lands in fee and then abandoned for rail- 
 road, the land did not revert. Page v. Heineberg, N. S. vii. 697. 
 
 REVIEW. 
 
 1. In actions of review the whole subject of amending the pleadings and 
 admitting new, is within the discretion of the court. Colebrook v. Medvill, 
 N. S. xi. 885. 
 
 2. In the trial of an action upon review, the court may reject or allow a 
 demurrer to the original declaration. Id. 
 
 3. Upon review, nothing which has arisen since the judgment in the origi- 
 nal cause can be pleaded in bar of the maintenance of the suit. Zollar v. 
 Janvrin, N. 8. xi. 336. 
 
 4. An action of review is a chose in action which vests in an assignee in 
 bankruptcy, who can alone prosecute or defend it. Id. 
 
 REWARD. 
 
 For arrest of criminal may be apportioned among several, &c. Bea t. 
 Smith, 0. S. T. 98. 
 
822 EIGHT OF WAY— RIPARIAN OWNERS. 
 
 RIGHT OF WAY. 
 
 Can be given only by grant express or implied, and therefore not in the 
 case of an escheat. Proctor v. Hodgson, 0. S. iii. 700. 
 
 RIPARIAN OWNERS. 
 
 1. Their rights and obligations, subject discussed, 0. S. Til. 705. 
 
 2. Rights of, as to fisheries annexed to the shores of the river Delaware. 
 Opinion of Hon. Joel Johes, 0. S. iv. 582. 
 
 3. A riparian proprietor has the right to use the water which flows through 
 or by his lands. Stein v. Burden, 0. S. v. 729. 
 
 4. Jurisdiction over the waters of the Hudson River by New Jersey, see 
 State V. Babcock, N. S. i. 753. 
 
 5. The common law rule of riparian ownership applies to the survey and 
 sale of public land (under an Act of Congress), where the land borders on a 
 stream not navigable ; but on navigable streams the title of the owner stops 
 at the stream, and does not come to the medium filum. Eailroad Co. v. Shur- 
 meir, N. S. viii. 254. 
 
 6. Slow accretions to the bank of a river become the property of the land- 
 owner on whose side they occur. Gerrish v. Clough, N. S. viii. 44fi. 
 
 7. As between proprietors of dams on the same stream, he has the better 
 right who was first in point of time. Lincoln v. Chardboume, N. S. ix. 125. 
 
 8. The line of the riparian owner of land in Illinois, bounded by the 
 Ohio river, extends at least to low-water mark. Bnsminger y. People, N. S. 
 ix. 128. 
 
 9. The riparian owner, thus having the title to the land between high- and 
 low-water mark, and the right to the exclusive use thereof, has the right to 
 establish a private wharf thereon, and make reasonable charges for its use 
 by those navigating the river. Id. 
 
 10. A person navigating a river cannot land against the will of the ripa- 
 rian owner, and becomes a trespasser if he does. Id. 
 
 11. An inland lake, five miles long and three-fourths of a mile wide, hav- 
 ing no current and no main inlet, is not, in any legal or just sense of the 
 term, navigable water. Ledyard v. Ten Fjyck, N. S. i. 569. 
 
 12. Where lands are bounded, in a deed of conveyance, by a lake, of that 
 description and the outlet thereof, the title of the grantee extends usque ad 
 medium filvim aquse. At all events, the deed will carry the right to land sub- 
 sequently filled in, where the water is shallow, immediately in front of the 
 grantee's premises. Id. 
 
 13. The title of a riparian owner on the Allegheny (a navigable stream) 
 does not include an island opposite his land. Wainwright v. McCullough, N. S. 
 X. 71. 
 
 14. The title of a riparian owner between high- and low-water mark is 
 subject to the right of navigation and improveinent of the stream as a high- 
 way. Id. 
 
 15. The title of a riparian owner on the Ohio extends to low-water mark, 
 subject to the easement in the public of navigation. Martin v. City of Bvans- 
 ville, N. S. X. 71. 
 
 16. Log-owners are liable to the riparian owners for damages caused by 
 travelling on the banks. Hooper v. Hobson, N. S. x. 72. 
 
 17. The state is the absolute owner of the land below high-water mark 
 under all navigable water within its territorial limits, and such land can be 
 granted to any one, either public or private, without making compensation to 
 the owner of the shore. Railroad Co. v. Stevens, N. S. x. 165. 
 
 18. By the local custom of the state, the shore owner can reclaim the land 
 between high- and low-water marks, but such privilege is a mere license 
 which the legislature may revoke at any time before execution. Id. 
 
 19. The rights conferred by the Wharf Act are also revocable before exe- 
 cution by the land-owner. Id. 
 
 20. A statute giving a railroad company the right to lay their road along a 
 river, and to acquire the rights of the shore owners, will not be construed to 
 give by implication the right to take the land of the state lying below the 
 high-water line. Id. 
 
 21. A riparian owner on a navigable stream has a right of free access to 
 the navigable part, and a right to make a landing or wharf for his own use. 
 Tatee v. Milwaukee, N. S. x. 207. 
 
EIPAEIAN OWNERS. • 823 
 
 22. Such rights are to be enjoyed, subject to the public right in the river 
 as a navigable stream. Railroad Co. v. Sieoens, N. S. x. 165. 
 
 23. Entitled to compensiation for injury resulting from a diversion of the 
 water of the stream to supply a city. The diversion of the water from a 
 stream for twenty years gives a title by prescription. Stein v. Burden, 0. S. 
 iii. 55. 
 
 24. Under United States laws the title of a riparian owner on a navigable 
 stream stops at the edge, but he has the right to erect wharves and construct 
 suitable landings. Wisconsin Imp. Co. v. Lyons, N. S. xii. 195. 
 
 25. Where it is held that the title of a purchaser extends to the centre of 
 a stream, it is subject to the public right of navigation. Id. 
 
 26. The public have all rights on the bank of a stream necessary to navi- 
 gation. Id. 
 
 27. Land formed by alluvian on the bank of a river is divisible among the 
 riparian owners. Batchelder v. Keniston, N. S. xii, 326. 
 
 28. Rule for apportionment among the owners. Id. 
 
 29. The owner of land in Vermont bordering on Lake Champlain has no 
 title below low-water mark, except by statute,' which gives him the right to 
 build a wharf or dock in front of his land. Therefore, this wharf was not 
 a building on plainliiFs land, nor an accretion to it in the legal sense ; it was 
 a mere abutting against it by a structure built outside of it. Austin v. Rut- 
 land R. R. Co., N. S. xii. 415. 
 
 30. A riparian proprietor on the Mississippi, although he be the owner of 
 a saw-mill thereon, has no right, without legislative authority, to erect a solid 
 pier of masonry within the navigable channel of the river, in order to fasten 
 thereto a boom for the protection of logs ; and such a pier comes within the 
 legal notion of a nuisance. N.W. Packet Go. v. AtUe, N. S. xii. 561. 
 
 31. The respondent held to be in fault for failing to keep such a pier lighted 
 at night, in consequence of which the libellant's vessel was sunk, and her 
 cargo injured. Id. 
 
 32. Extent of riparian rights on the Mississippi river considered. Id. 
 
 33. The rule of riparian proprietorship upon the river Detroit, as laid down 
 in Lorman v. Benson, 8 Mich. 18, is applicable to Lake Muskegon ; and the 
 ownership of laud bordering upon the lake carries with it the ownership of 
 the land under the water, so far out as it is susceptible of beneficial private 
 use, but subordinate to the paramount public right of navigation, and the 
 other public rights incident thereto. Rice v. Ruddiman, N. S. i. 615. 
 
 34. The owners of an upper mill, whose business required the running of 
 their mill only by day, detained the water of the stream during the night, 
 such detention, and the larger discharge during the day, causing serious 
 damage to the owners of a lower mill, whose business required the running 
 of their mill both night and day. The lower privilege was occupied several 
 years before the upper, and after the upper mill was built the water was for 
 several years allowed to flow during the night, and the lower mill had used 
 it by night and by day. Upon a petition by the lower mill-owners against 
 the upper, for an injunction against the detention of the water by night, it 
 was held, 1. That the petitioners had acquired no superior rights by their 
 earlier occupation, or by their use of the water by night, so long as they had 
 exercised no rights greater than such as belong to them as riparian proprie- 
 tors ; the full flow of the stream being nothing beyond such right. 2. That 
 all that the petitioners were entitled to was a reasonable use of the stream 
 against an unreasonable use or detention by the respondents; that the ques- 
 tion was whether tbe respondents had acted unreasonably in detaining the 
 water; and that the burden of proof on this subject was on the petitioners. 
 Keeney v. Union Manufacturing Co., N. S. xiii. 82. 
 
 35. The right in such a case of the upper mill-owner to make the stream 
 useful to him by detaining the water during the night, is of the same quality 
 as the right of the lower mill-owner to take the benefit of the constant flow. 
 In deciding between these conflicting rights, there are to be considered ; 1. 
 The custom of the country as to the running of mills. 2. The local custom, 
 if there be one. 3. What general rule will best secure the entire stream to 
 useful purposes. 4. Whether the detention of the water is necessarily an 
 injury to the lower mill, and whether the apparent injury is not caused by 
 the insufficiency of its own privilege. Id. 
 
824 • EIPAEIAN OWNERS. 
 
 36. The maxim " aqua currit et currere debet," is applicable rather to the 
 matter of the diversion of a stream, and to the ordinary rights of riparian 
 proprietors as such, than to the case of mill-owners, who have a right to 
 make a reasonable detention of the water by dams for the purposes of their 
 mills. Keeney v. Union Manufacturing Co., N. S. xiii. 82. 
 
 37. The side boundaries of water-lots are to be governed by the course of 
 the stream, and drawn at right angles with the central thread. Bay City Gas- 
 Light Co. v. Industrial Works, N. S. xiii. 526. 
 
 38. There is no distinction between streams that are subject to easement 
 of passage and those that are not. Id. 
 
 39. Any use of land under rivers, compatible with the public easement, 
 belongs with the upland. Id. 
 
 40. Even the beds of navigable tide-waters are subject to the disposal of 
 state laws, saving the public rights. Id. 
 
 41. The right of docking must not impair the right of navigation. Id. 
 
 42. Dock lines have nothing to do with boundaries. Id. 
 
 43. Kiparian owner may drain into an adjoining stream. IVeat v. Bates, 
 N. S. xiii. 527. 
 
 44. May prevent any interference with natural flow of stream as will injure 
 his legal privileges. Id. 
 
 45. The owner of lands bordering a navigable stream may maintain tres- 
 pass against one who uses the land between the ebb and flow for fishing and 
 moving boats. Whittaker v. Burham, N. S. xi. 724. 
 
 46. A riparian proprietor has the right to use the water which flows by 
 or through his lands, for all ordinary purposes and for the gratification of 
 natural wants, even though the entire stream is thereby consumed ; and 
 also the right to its extraordinary or artificial use provided it is not thereby 
 forced back on the lands of the proprietor aljove him, is not unreasonably 
 and injuriously precipitated on the lands of the proprietor below, and is 
 restored without material diminution, before it leaves his lands to its accus- 
 tomed channel. Stein v. Burden, 0. S. v. 729. 
 
 47. If a riparian proprietor directs the water of a running stream for arti- 
 ficial purposes in quantities to aifect injuriously the rights of the proprietor 
 below him, and does not restore it to its natural channel without material 
 diminution before it reaches the lands of that proprietor, he is liable in 
 damages for the.injury ; and that the means provided by him for its resto- 
 ration are rendered inefficient for that purpose, after the water has left his 
 land by the act or interference of a third person, though it might mitigate 
 the damages, is no excuse for the failure, since the right to divert it is only 
 conditional and ceases when the water cannot be restored. Id. 
 
 48. There are no correlative rights existing between the proprietors of ad- 
 joining lands in reference to the use of the water in the earth or percolating 
 under its surface. Such water is to be regarded as part of the land itself, to 
 be enjoyed absolutely by the proprietor within whose territory it is; and to 
 it the law governing the use of running streams is inapplicable. Lewis Chat- 
 field V. Walter M. Wilson, N. S. v. 528. 
 
 49. Act legal in itself and which violates no right, cannot be made action- 
 able on account of the motive which induces it. Id. 
 
 50. Although the ebb and flow of the tide was at common law the most 
 usual test of navigability, it was not necessarily the only one. McManes v. 
 Carmichael, 0. S. v. 593. 
 
 , 51. But however this may be, that test is not applicable to the Mississippi 
 
 river. Id. 
 
 52. The common law consequences of navigability, attach to the legal 
 navigability of the Mississippi. Id. 
 
 53. The term navigable embraces within itself not merely the idea that the 
 waters could be navigated, but also the idea of publicity, so that saying 
 waters are public is equivalent in a legal sense to saying that they are navi- 
 gable. Id. 
 
 54. Yet the navigability, in fact, is the leading idea and is the ground of 
 their publicity. Id. * 
 
 55. The ebb and flow of the tide does not in reality make the waters navi- 
 gable, nor has it in the essence of the thing anything to do with it. Id. 
 
 56. It is navigability in fact which forms the foundation for navigability 
 
EIPAKIAN OWNERS— EIVEE. 825 
 
 in law, and from that fact follows the appropriation to public use, and hence 
 its publicity and legal navigability. McManes v. Carmicliael, 0. S. v. 593. 
 
 57. The real test of navigability in this country is ascertained by use or 
 by public act or declaration. Id. 
 
 58. The acts and declarations of the United States declare and constitute 
 the Mississippi river a public highway, in the highest and broadest intend- 
 ment possible. Id. 
 
 59. The rule that a grant is to be construed most strongly against the 
 grantor, does not apply to public grants. Id. 
 
 60. The government being a trustee for the public, its grants are to be 
 construed strictly. Id. 
 
 61. Grants of land by the United States, by patent, have relation to the 
 survey plats and field notes. Id. 
 
 62. The common law knows but two lines — the medium filum aguse and high 
 water. If the stream be navigable, the boundary of the adjoining land is the 
 one ; if not navigable, the boundary is the other. Id. > 
 
 63. By the common law, the riparian proprietor on navigable waters owns 
 to high-water mark only, and this rule applies to the Mississippi river. Id. 
 
 64. If the accumulation of dirt in a dam causes the growth of a certain 
 grass, which thereby backs the water on a neighbor's land, the owner is 
 liable. Knoll v. Light et al., N. S. xiv. 585. 
 
 65. If the growth of grass was the result of natural causes, he will not be 
 liable. Id. 
 
 66. The party injured, by the growth of grass had the right to enter on the 
 other's land and remove it. Id. 
 
 67. In Michigan there are no tide-waters which come within the technical 
 meaning of the term " navigable," as understood in the common law. Lorman 
 V. Benson, 0. S. viii. 219. 
 
 68. The land of the riparian owner of land in Illinois bounded by the Ohio 
 river, extends at least to low-water mark. Ensminger v. The People, N. S. ix. 
 128. 
 
 69. Riparian owner may charge for use of the shore. Magnolia v. Marshall, 
 N. S. vi. 510. 
 
 70. Legislative control over tide- waters — rights of riparian owners to water 
 in front of them. Steamboat Co. v. Transportation Co., N. S. vii. 759. 
 
 71. The title of the riparian owner extends to low-water mark. Bainbridge 
 V. Sherlock, N. S. vii. 720. 
 
 72. Bights of riparian owners. Siockham v. Browning, N. S. vii. 767. 
 
 73. Where the opposite banks of a river in which there is no tidal effect, 
 belong to different owners, the ownership of each extends usque ad medium 
 filum aquse. Norway Plains Co. v. Bradley, N. S. xii. £35. 
 
 74. Opinion of Attorney-General as to right of N. Y. to divert waters of 
 Chemung river. 0. S. iy. 385. 
 
 RIVER. 
 
 I. Generally. 
 
 1. The internal streams of a state, above the tide and above boat navigation, 
 are in some sense public highways for the floating of logs, in those parts of 
 the state where this species of transportation is of indispensable necessity. 
 Veazie v. Dwinel, N. S. iii. 715. 
 
 2. Extent of the power to regulate the use of navigable rivers, by bridging, 
 &o., under state authority. Gilman v. Philadelphia, N. S. v. 636. 
 
 3. The act of 1867 declaring a bridge across the Mississippi river, at Clin- 
 ton, " a lawful structure and post route," is constitutional. Gray v. Clinton 
 Bridge, N. S. vii. 149. 
 
 4. Rights of riparian owners. Stockham v. Browning, N. S. vii. 767. 
 
 5. County courts of different states bounded by a river, have jurisdiction 
 of crimes committed on the river. Carlisle v. The State, N. S. x. 64. 
 
 II. Op the Right to the Soil Covered by a River. 
 
 6. The title of a riparian owner on the Ohio extends to low-water mark. 
 Martin v. City of BvansvUle, N. S. x. 71. 
 
 7. The state absolute owner of the land below high-water mark under all 
 navigable water within its territorial limits. R. R. Co. v. Stevens, N. S. x. 165. 
 
 8. The distinction between navigable rivers and other highways for pur- 
 
826 EIVEE. 
 
 poses of local taxation, discussed. Oerrard Co. Court v. Navigation Co., N. S. 
 X. 151. 
 
 9. The soil of the alveus of a river in which there is no tide, belongs to the 
 riparian owners usque ad medium filum aquee. Norway Plains Co. v. Bradley, 
 N. S. xii. 535. 
 
 10. The Ohio river being a great navigable highway between states, the 
 public have all the rights that by law appertain to navigable streams, as 
 against riparian owners ; but the public rights are upon the river, not upon 
 the banks. Bainbridge v. Sherlock, N. S. vii. 720. 
 
 11. The title of the riparian owner extends to low-water mark. Id. 
 
 12. The right to use the river as a highway does not imply the right to use 
 the banks for the purposes of landing, to receive and discharge freight and 
 passengers. Except in cases of peril or emergency, the navigator has no 
 legal right to land, without consent of the riparian owner, at places other 
 than those that have in some way become public landing-places. Id. 
 
 13. A grant of land, bounded by a fresh-waier stream, whether navigable 
 or not, conveys the soil usque ad medium filum aquse, and of course conveys 
 shore between high- and low-water mark. Magnolia v. Marshall, N. S. vi. 510. 
 
 14. The owners of land on the bank of a navigable river, where the tide 
 ebbs and flows, and whose title extends no further than to high-water mark, 
 have no such property in the land under water, or the privilege of using the 
 river as to be entitled to recover damages against a railroad company, who, 
 by grant from the state, construct their road below high-water mark and cut 
 tile riparian owner off from access to the channel of the river. Gould v. The 
 Hudson River Railroad Company, 0. S. i. 183. 
 
 III. Op Water Powers, and Herein op Dams and other Obstructions, and 
 Actions for Damages Occasioned by them. 
 
 15. Unavoidable obstruction of, by railroad company) if done under the au- 
 thority of law for the public good, is justifiable. Attorney-Gen. v. Hudson 
 River R. R. Co.' 0. S. v. 126. 
 
 16. What constitutes the test of navigability, see Riparian Owner. 
 
 17. Obstructions to navigation of river under authority of charter. See 
 Plank-Road Co. v. Elmer, N. S. i. 57. 
 
 18. Where a mill-dam is erected by a riparian owner, so as to obstruct the 
 navigation of a river, the remedy prescribed by the act of 1803 must be 
 pursued, and an indictment cannot be sustained without the preliminary pro- 
 ceedings required by the act. But these proceedings, if had, need not be 
 set out in the indictment. Commonwealth v. Plumer, 0. S. i. 124. 
 
 19. The United States may bring an injunction in the proper Circuit Court 
 to protect improvements which they are making under the authority of Con- 
 gress in navigable waters, from injury, which will be caused by works of in- 
 ternal improvement within state limits and authorized by state authority. 
 The power of the Federal Government, when called into exercise, is in such 
 cases not only paramount but exclusive, and cannot lawfully be interfered 
 with to any extent. United States v. Duluth, N. S. x. 449. 
 
 20. Whether the work prosecuted under state authority will have the eflFect 
 to interfere with that prosecuted under the Federal authority, is a question 
 upon which the opinions of the government engineers, while entitled to great 
 consideration, are not conclusive. Id. 
 
 21. Where the injury threatened is of a character not easily remedied if 
 the injunction be refused, and there is no denial that the act charged is con- 
 templated, a temporary injunction should be granted unless the case made 
 by the bill is satisfactorily refuted. Id. 
 
 22. A municipal corporation through which a stream passes is not bound 
 to keep it navigable. Winpenny v. Philadelphia, N. S. x. 540. 
 
 23. The obligations of removing obstructions is upon the United States. Id. 
 
 24. A party complaining of encroachment on the alveus of a stream must 
 prove essential damage. Norway Plains Co. v. Bradley, N. S. xii. 535. 
 
 25. No priority of use of water affects the right of a riparian proprietor 
 above, to a reasonable use of the water by him. Id. 
 
 26. The rights of the public for the navigation of the Schuylkill river are 
 superior to those of the city of Philadelphia under the Act of April 9th, 1807. 
 City of Philadelphia v. Gilmartin, N. S. xii. 790. 
 
 21. The right of the city to draw water for purposes of manufacturing is 
 
EIVER— EOAD. 827 
 
 subordinate to the right of navigation. City of Philadelphia t. Gilmartin, N. 
 S. xii. 790. 
 
 2i. The legislature can prohibit the erection of any dam or bridge over a 
 navigable stream, which might impede navigation. Wisconsin Imp. Co. v. 
 Lyons, N. S. xii. 195. 
 
 i!9. By the constitution of the state of Wisconsin, and the compacts and 
 ordinances between it and the United States, the Mississippi river, the nav- 
 igable waters leading into it, and the St. Lawrence are declared to be com- 
 mon highways, and forever free. Id. 
 
 30. Riparian owners may extend wharves to, and into the navigable por- 
 tion of, the river, provided they do not unnecessarily obstruct navigation. 
 Bainbridge v. Sherlock, N. S. vii. 720. 
 
 31. Whoever would maintain a wharf for the accommodation of any par- 
 ticular class of vessels, should possess a sufficient water-front to contain that 
 class of vessels, without obstructing access to the lands of contiguous pro- 
 prietors. Id. 
 
 32. A wharf-boat moored to the shore is entitled to the same immunity 
 from trespass, or obstruction by vessels navigating the river, as is the land 
 itself to which the wharf-boat is moored. Id. 
 
 33. The navigator landing at one wharf with permission of the wharfinger, 
 is not justified by any public right in the river, in so landing and mooring 
 his vessel, as that while landed its side and stern will be carried by the cur- 
 rent against the wharf-boat of a contiguous wharfinger lower down the river, 
 thereby obstructing access to the lower wharf. Id. 
 
 34. Owner of land no right to corrupt stream. Merrifield v. Lombard, N. S. 
 vii. 126. 
 
 35. Navigator on fresh-water streams cannot land on shore, nor approach 
 stream over land of riparian owner. Magnolia v. Marshall, N. S. vi. 510. 
 
 36. Riparian owner may charge for use of the shore. Id. 
 
 37. Mississippi river not navigable above tide-water. Subject to law of 
 fresh-water streams. Id. 
 
 38. Cases on subject of navigable streams and fresh-water streams col- 
 lected and reviewed. Id. 
 
 39. Meaning of navigable river at common law. Magnolia v. Marshall, N. 
 S. vi. 510. 
 
 40. Fresh-water streams belong to riparian proprietors, subject to ease- 
 ment in public to navigate such as are in fact navigable. Id. 
 
 41. Right to divert course of the Chemung river — opinion of the Attorney- 
 General of Pennsylvania as to. 0. S. iv. 385. 
 
 42. One wrongfully damming river and raising water. Amoskeag Co. v. 
 OoodaU, N. S. vi. 256. 
 
 43. A riparian owner on a navigable stream has a right of free access to 
 the navigable part. Yates v. Milwaukee, N. S. x. 207. 
 
 44. When a wall occupying any portion of river bed is a nuisance. Cityy. 
 Erickson, N. S. vi. 123. 
 
 EOAD. 
 I. Op the General Road Lavt. 
 
 1. Damages for opening roads — practice as to in Ohio. Ferru v. Bramble, 
 0. S. iv. 694. ^ . . 
 
 2. The Act of April, 1846, of Pennsylvania, vacating private roadsexisting 
 by prescription is constitutional. Krier's Private Road, N. S. xiii. 397. 
 
 3. Roads by prescription rest upon adverse use for twenty years, and not 
 on the fiction of a grant. Id. .. ^ i, 
 
 4 Where a plan of city lots, proposals for sale and conveyance thereof all 
 recite that a street passing through them has been widened to a certain 
 number of feet, it is sufficient evidence of a dedication to the public by the 
 original owner of the increased width. Andress v. Comm. of Northern Liber- 
 ties, 0. S. ii. 571. , , . , 
 
 5 Private person cannot remove a fence which encroaches upon a nign- 
 way, unless it obstructs the use of the road by the public, narrower et al. v. 
 Ritson et al., N. S. ii. 315. . , . ■ ■ i j 
 
 6. Legislature has unlimited power over public rights m highways, includ- 
 ing streets in a city. People v. Kerr et al., N. S. ii. 377. 
 
 7. Act of New York authorizing the making of highway over railroad 
 
828 ROAD— EULES AND REGULATIONS. 
 
 tracks without compensation. Albany Northern Railroad Co. v. Brownell et al,, 
 N. S. ii. 58. 
 
 8. How a road may become a legal higliway in New York. Trustees, S;c., 
 of Jordan v. Otis, N. S. ii. 123. 
 
 9. How and through what land it may be made under the New York stat- 
 ute. People ex rel. Williams v. Kingman et al., N. S. ii. 183. 
 
 10. Who are authorized by law in Massachusetts to accept a road in a 
 town. Reed t. Sdtuate, N. S. ii. 559. 
 
 11. Under the general road law of 1836, the report of the viewers is to be 
 made at the next term after their appointment. Stauffer'a Appeal, 0. S. i. 441. 
 
 II. Petition foe Laying oct a Road. 
 
 12. Damages assessed for opening a road through land, belong to the 
 owner of the land at the time the road is opened. Meginnis v. Nunamaker, N. 
 S. X. 414. 
 
 13. It is not necessary, under the Act of April, 1843, that it should appear 
 on the face of the proceedings that the owner of land, when called upon to 
 release the damages expected to be caused in laying out a road. Road from 
 Greensburg to Murraysville, 0. S. i. 124. 
 
 14. One supervisor of roads has power to employ men to do the ordinary 
 repairs or work upon the roads, but he cannot bind the township by a spe- 
 cial contract for the opening of a new road.. McNeal v. The Toumship of Alle- 
 ghany, 0. S. i. 124. 
 
 III. Of the Viewebs and their Peoceedings. 
 
 15. Where a view of a road has been confirmed without fixing the width of 
 the road, the confirmation will be reversed, and record remitted for correc- 
 tion. Road in Indiana Township, 0. S. ii. 122. 
 
 16. Commissioners must lay out the whole, as applied for, or none. People 
 v. Township Board, ^c., N. S. iii. 765. 
 
 IV. Bridges. 
 
 17. Where the public acquire a right of way over a race previously dug 
 by the owner of the land, the burden of building and maintaining such a 
 bridge as is necessary for the highway, rests upon the public. Phcenixmlle 
 \. Phoenix Iron Co., N. S. ii. 307. 
 
 18. On the other hand, where the owner of the land, for his own purposes, 
 digs a race across an existing highway, he is bound to build and keep in re- 
 pair such bridge as is necessary for the highway. Id. 
 
 19. His obligation is proportioned to the public right at the time. If the 
 public subsequently acquire greater rights, his obligation is not increased. Id. 
 
 20. Ttfferefore, in a case where a bridge built by defendants' vendor had 
 been carried away, and a new one built wider and higher, to correspond 
 with a new road laid out by order of court on the site of the old one, it was 
 held, that defendants were not liable for repairs to this new bridge. Id. 
 
 EOAD CROSSING. 
 
 1. At the intersection of a railway and turnpike, the traveller by the high- 
 way has a right to be within the rails long enough to cross them. Reese v. 
 The Delaware Railroad, 0. S. vi. 565. 
 
 2. A conveyance of a strip of land in express terms, with restrictions that 
 it is only to be used as a road, is a grant of the fee and not of mere easement. 
 Cobum V. Coxeter, N. S. xi. 722. 
 
 3. It is the duty of towns to build and repair their roads in such a way 
 as to be reasonably safe from such accidents as might justly be expected 
 to occur on their roads. Bodge v. Town of Bennington, N. S. xi. 50. 
 
 ROMAN CATHOLIC PRIEST. 
 
 Communications made to, in confessional, held privileged. I7ie Com. v. 
 Cronin, 0. S. iv. 465. 
 
 RULE IN SHELLEY'S CASE. 
 
 1. Remarks upon origin of, 0. S. i. 583. 
 
 2. Proviso in devise controlling. See Treville v. Mlis, 0. S. iii. 575. 
 
 3. See Guthrie's Appeal, 0. S. ix. 354. 
 
 EULES AND REGULATIONS. 
 
 The power of railroad companies to adopt. See Railroad. 
 
SALAEY— SALE. 825 
 
 SALARY. See Ciaims. 
 
 1. Payment at a certain rate per month — abandonment of contract before 
 exDiration of term — and right to recover monthly salary. Taylor ■^. Laird, 
 0. S. V. 508. 
 
 2. Public officer, when legally removed during quarter, is not entitled to 
 salary to end of quarter. The U. S. v. Smith, 0. S. T. 268. 
 
 3. How far assignable. See Assignment. 
 
 SALE. See Lex Low, Action, Evidence. 
 
 I. Of the Contract of Sale. 
 
 1. When the contract of sale is complete, its terms cannot be changed, by 
 reference to a bill of parcels subsequently rendered by the vendor. Alien v. 
 Schuchardt, N. S. i. 13. 
 
 2. Actual delivery of possession and specification of price is necessary to 
 constitute a sale. Bigley v. Risher, N, S. x. 205. 
 
 3. Where a purchaser never was in possession, but the sale was concluded 
 in and evidenced by a bill of sale, it is the best evidence of the fact. Bamett 
 y. Williams, N. S. i. 407. 
 
 4. Where price depends upon quantity or quality, whatever remains for 
 vendor to do, as weighing, testing, &c., is a condition precedent to transfer- 
 ence of title. Lingham v. Eggleston, N. S. xiii. 462. 
 
 5. If anything remains to be done by either party to a contract of sale, 
 before delivery, the title does not pass. Gibbs v. Benjamin, N. S. xii. 791. 
 
 6. The contract must be ezecuted to effect a complete sale. Id. 
 
 I. Where the terms are "cash on delivery," the vendor may hold a lieu on 
 the property sold until the price is paid. Jenness v. Wendell, N. S. xii. 57. 
 
 8. Where stock is sold under an agreement by vendor to take it back and 
 return price if requested, and a certificate is delivered, vendor may recover 
 price without tendering certificate. Oeorge v. Braden, N. S. xii. 406. 
 
 9. Contracts of sale and of bailment, subject discussed, N. S. iii. 821. 
 
 10. A bill of sale, although broad enough in its terms, does not include 
 property not in the knowledge or contemplation of the vendor, and under the 
 Missouri practice a bill in equity will lie for an account of such property, 
 without asking a formal rescission of the bill of sale. Pomeroy v. Benton, N. 
 S. xiv. 806. 
 
 II. Acceptance of bill of goods in a warehouse in another state with order 
 on warehouseman, will not take the sale out of the statute of frauds. Boards- 
 man V. Spooner, N. S. vii. 188. 
 
 12. Construction of contract for sale of standing timber, with stipulation 
 of vendee to cut and carry away. Murphy v. Garland, N. S. vii. 818. 
 
 13. Two papers, each signed by one party, may be submitted as evidence 
 of a written contract of sale, signed by both. Ehoades v. Castner, N. S. vi. 320. 
 
 14. Contracts for the sale of goods or lands at public auction, are contracts 
 founded upon mutual promises. Blossom v. R, R. Oo., N. S. v. 218. 
 
 15. When contract for sale of land within ten days is to be performed. 
 Goldsmith v. Guild,- N. S. v. 506. 
 
 II. Sale of Chattels. 
 
 16. A voluntary sale of chattels, to aiTeot vendor's creditor, must be accom- 
 panied by an actual change of possession, and the possession must continue 
 in the purchaser. Barr v. Reits, N. S. vi. 693. 
 
 17. Where actual delivery does not attend the sale, it is fraudulent per se, 
 and the court is bound to tell the jury so. Id, 
 
 18. The burden of proving the delivery lies on the purchaser, who must 
 establish his possession by sufficient evidence. Id. 
 
 19. But in considering the question what is an actual delivery, the nature 
 of the property, and circumstances attending the sale, must be taken into 
 account. Id. 
 
 20. The principle underlying all the oases is, that there must be an actual 
 separation of the property from the possession of the former owner at the 
 time of the sale, or within a reasonable time afterwards, according to the 
 nature of the property delivered. Id. 
 
 21. When one about to move away sold, by bill of sale, his household 
 goods to a creditor commencing housekeeping, and delivered the key of the 
 house to the purchaser, receiving cr,edit to the amount of the claim due, and 
 
830 SALE. 
 
 cash for tie 'balance of the sale, and moved away, it was error in the court 
 to pronounce the sale a legal fraud. The question of possession should have 
 been left to the jury. Barr v. Reiiz, N. S. vi. 698. 
 
 22. Of chattels, not impracticable to move is voidable by creditors, if not 
 accompanied by change of possession. Houston v. Howard, N. S. vi. 488. 
 
 23. How a manifest and substantial change pf possession, determined. Id. 
 
 24. What does not amount to. Id. 
 
 25. Validity of attachment of goods, against vendor. Id. 
 
 26. Where the transfer of possession corresponds with the nature of the 
 chattels sold, the sale is valid. McMarlan v. Englkh, N. S. xiii. 716. 
 
 27. Where there has been actual change of possession, the court cannot 
 pronounce sale fraudulent in law. Id. 
 
 28. The separation from the vendor must be at the time of the sale. Id. 
 
 29. AVhen the contract of sale ia complete, its terms cannot be changed, 
 by reference to a bill of parcels subsequently rendered by the vendor. AUm 
 y.Schuchardt, N. S. i. 13. 
 
 30. Sale of cargo of ship at a port of distress, see Insurance. . 
 
 31. It is a question for the jury to determine whether the title to property 
 passed at time of sale, where the vendor agreed to haul the goods to a cer- 
 tain place. Dyer v. Libby, N. S. xiii. 127. 
 
 32. If goods are unmistakably designated, delivery is not absolutely essen- 
 tial to complete the sale. Lingham ^ Osborne v. Eggleaton, N. S. xiii. 462. 
 
 33. Whether a sale is complete must be determined from the construction 
 of the agreement. Id. 
 
 84. Delivery is almost conclusive evidence that the property shall vest in 
 purchaser. Id. 
 
 35. Property may pass though something remains to be done by vendor. 
 Id. 
 
 36. When property in goods passes. Nesbit v. Barry, 0. S. iv. 443. 
 
 37. The rule of caveat emptor applies to sale of stock as of other chattels. 
 Renton v. Maryott, N. S. X. 280. 
 
 38. The testimony of a witness that he bought the liquor is sufficient to 
 prove a sale of it. Hensley v. The State, N. S. xiv. 394. 
 
 39. Of all tools, &c., on a farm — parol evidence admissible to explain 
 what specific property included. Bugg v. Hale, N. S. vii. 638. 
 
 40. Incorrect description of locality of personal property sold does not 
 affect the sale. Id. 
 
 41. Property in chattels and right of possession, how passed. Godts v. 
 Rose, 0. S. iv. 574. 
 
 42. The vendor of an article of merchandise impliedly warrants he has 
 a title to what he assumes to sell. Hoe v. Sanborn, 0. S. viii. 740. 
 
 III. Sale by Sampie. 
 
 43. S. acting for parties at Amsterdam, put into the hands of a broker in 
 the city of New York a sample bottle of a quantity of madder, to negotiate 
 a sale. The sale was made in Rhode Island, by the broker, in the name of 
 S., the foreign principal not being disclosed, under an oral contract to A., 
 upon the inspection of the sample bottle, which he refused to open on account 
 of the instructions of S. The madder was, at the time of the sale, in barrels, 
 in a vessel at the port of New York. After the contract was made, a bill of 
 goods was furnished to the purchasers, with a clause, that "no claims for 
 deficiencies shall be allowed unless made within seven days from receipt of 
 goods." The madder in the casks proving inferior to its apparent qualities 
 in the bottle, an action on the case was brought against S,, by the purchasers, 
 for damages. 
 
 Held — 1. The oral contract made in Rhode Island, where the statute of 
 frauds does not prevail, can be enforced here, although the contract, if made 
 in the same manner in New York, would have been void. The fact that the 
 merchandise was in New York does not aifeot the question. 
 
 2. The action on the case is a proper remedy, and it is not necessary to 
 aver a icienter, 
 
 3. The sale was by sample, and there was an implied warranty that the 
 merchandise should correspond with the apparent qualities of the sample. 
 
 4. The clause in the bill of goods respecting deficiencies, is inoperative, 
 as the contract was previously complete. 
 
SALE. 831 
 
 5. S. not hnving disclosed hia principals, is personally liable. Allen et 
 al. V. Schuchardt et al., N. S. i. 18. 
 
 44. Tlie meaning of an expression in a contract which indicates the nature 
 of the article contracted for, cannot be altered by any alleged custom of the 
 trade. Nichol v. Goltz, 0. S. iii. 125. 
 
 45. Where the article is not equal to the sample, the contract may be 
 rescinded. Foot-note to Allen v. Schuchardt, N. S. i. 17. 
 
 46. It is a reasonable rule that if the article is not present and a sample 
 is exhibited, that the sale should be treated as being by sample.. Id. 
 
 47. But where the article and sample are both open to the purchaser it 
 must appear affirmatively, by satisfaotovy proof, that it was the intention 
 of the parties to sell by sample. Id. 
 
 IV. Wakrantt and Implied Warranty. 
 
 48. Implied warranty that the goods shall be equal to sample. Id. 
 
 49. The note on the bill rendered that "no claims for de6eiencie3 or im- 
 perfections allowed unless made within seven days from receipt of goods," 
 inoperative. Id. 
 
 50. A butcher purchased a carcass of beef exposed for sale in Newgate 
 market, of a meat salesman there, without any express warranty of its 
 soundness. Upon the meat being cooked, it was discovered to be unfit for 
 human food, and returned. The defect did not appear when it was raw, and 
 there was no evidence that the defendant knew, or had any reason to sus- 
 pect, that the beef was otherwise than good and wholesome meat, fit for 
 human food. Held, that there was no implied warranty in such case, and as 
 there was no proof of any express warranty, the plaintiff could not recover; 
 that no action for deceit would lie, as there did not appear, on the part of 
 the defendant, to be fraud. Emerton v. Mathews, N. S. i. 231. 
 
 51. Bill of sale of " horse sound and kind " is a warranty of soundness. 
 Brown v. Bigelow, N. S. v. 575. 
 
 52. There is no implied warranty of the quality arising from the mere 
 fact the seller is the maker. Sanborn v. Herring, N. S. vi. 457. 
 
 53. Question of warranty in the sale of safes considered. Note to Sanborn 
 v. Herring, N. S. vi. 464. 
 
 V. Liability for Sale of Dangerdits Article. 
 
 54. Liability from sale of a dangerous article. Davidson v. Nichols, N. S. 
 vi. 189. 
 
 VI. Distinction between a Sale and Bailment. 
 
 / 55. A receipt for an article to be returned in three months, with condition 
 that it shall be a sale on payment of a certain sum, is a bailment only. Dan- 
 lap V. Gleason, N. S. vii. 185. 
 
 ■ 56. Where a warehouseman receives wheat, and by the consent of the 
 owner, or in accordance with the custom of trade, mixes the wheat in a 
 common mass with other wheat in his warehouse, with the understanding 
 that he is to retain or ship the same for sale, on his own account, at pleasure ; 
 and, on presentation of the warehouse receipt, is either to pay the market 
 price thereof in money, or redeliver the wheat, or other wheat in place of it, 
 the transaction is not a bailment, but a sale, and the property passes to the 
 depository, and carries with it the risk of loss by accident. Chase v. Wash- 
 burn, 0. S. i. 487. 
 
 VII. Of the Authority to make Sale and herein of Fraudulent Sales. 
 
 57. Authority to sell the bonds of a railroad cannot be inferred from being 
 a director. Titus et al. v. The Cairo ^ F. R. R., N. S. xiv. 252. 
 
 68. The president of a railroad cannot give power of attorney to sell. Id, 
 
 59. No title passes when the sale has been procured by fraud. Bernard v. 
 Can!pie«, N. S. xiii. 263. 
 
 60. Sale of chattels to remain property of the vendor though delivered 
 to vendee, is not fraudulent in law. Eaty v Aldrech, N. S. vi. 248. 
 
 61. The sale of a horse belonging to the U. S. by an officer without the 
 assent of the government, will not pass the title against the latter. Johnson 
 v. Frisbie, N. S. viii. 756. 
 
 62. If a will direct the executors to sell a certain tract after the death of 
 a certain legatee, a sale in lifetime of legatee is void. Booraem v. Wells, N. S. 
 viii. 127. 
 
832 SALE. 
 
 63. A complaint for damages for fraudulent representations in the sale of 
 real estate, must contain an averment that vendee relied on such representa- 
 tions. Goings V. White, N. S. x. 671. 
 
 64. Notice of sale defective from want of sufficient time is not cured by a 
 postponement to a day sufficiently remote. Sawyer v. Wilson, N. S. xiii. 261. 
 
 65. Sale of another's property out of belief of ownership is conversion. 
 Morrill V. Moulton, N. S. vii. 639. 
 
 VIII. Sale op Collatekals. 
 
 66. Railroad or canal bonds with coupons deposited as collaterals for the 
 payment of promissory notes may be sold. The Morris C. S; Bmik Co. v. 
 Lewis, 0. S. vi. 428. 
 
 IX. Or Keal Estate. 
 
 67. Where a sale is made by a referee appointed by the court in an action 
 to set aside a deed fraudulent as to creditors, no title passes to the purchaser, 
 by reason of total want of power in the court to order sale. Davilcy y. Brown, 
 N. S. xii. 668. 
 
 68. On a sale for cash the title does not pass until payment and no debt is 
 created which can be attached. Paul v. Reed, N. S. xii. 668. 
 
 . 69. In making sales of real estate to fix contract liability, the analogy of 
 sales under legal process will furnish the rule as to the requisite notice. 
 Eldridge V. Bliss, N. S. x. 478. 
 
 70. Sale of property, exempt from execution in Kentucky. What it passes. 
 Anthony v. Wadi, N. S. vi. 439. 
 
 71. Such a sale no fraud. Id. 
 
 72. Power to sell includes the power to mortgage. Note to Strong -7. Ausley, 
 0. S. i. 128. 
 
 73. Inadequacy of price does not vitiate a sale of mortgaged premises 
 under foreclosure, if sale is fair and regular. Cameron v. Adams, N. S. xiv. 703. 
 
 74. Time as a. general rule is the essence of a contract in equity for sale 
 of land. Ooldsmith v. Oiiild, N. S. v. 506. 
 
 75. A sale of decedent's property by orphans' court is not such an aliena- 
 tion as will avoid a policy of insurance. Farmers' Mut. Ins. Co. v. Graybill, 
 N. S. xiii. 710. 
 
 76. A sale of mortgaged premises in all other respects unobjectionable, will 
 not be set aside for inadequacy of price. Horsey v. Hough, N. S. xiii. 261. 
 
 77. An agreement with mortgagee at sale to pay his mortgage, if he would 
 not bid, which results in making the mortgagor liable for a greater defi- 
 ciency, is a fraud on the latter, which vitiates the sale. Morris v. Woodward, 
 N. S. xiv. 326. 
 
 78. A purchaser by payment of price acquires the entire equitable title. 
 Fond V. Sage, N. S. vi. 64. 
 
 79. Assignment of a bid at a chancery sale, after the sale is set aside, and 
 a resale made, is void for champerty. Newland v. Gaines, N. S. x. 194. 
 
 80. The surrender by a sister of the entire interest in real estate descended 
 to her for a gross sum constitutes a sale. Thomas v. Farmers' Bank, N. S. i. 131. 
 
 X. Sale bt and to Trustees and Attoenets, &c. 
 
 81. Party promising to bid a sale for another, who stays away, relying on 
 the promise, will be held a trustee, if he buys for his own benefit. Brannin 
 V. Brannin, N. S. vii. 698. 
 
 82. No one, without express authority of law, can purchase what it is his 
 duty to sell for the best price it will bring. Ames v. Port Huron Log-Driving 
 Co., N. S. ii. 570. 
 
 83. Sale by client to attorney, remarks upon, 0. S. iv. 316. 
 
 84. Sale to trustee. As fo power of a railroad company to lease or sell to 
 their own directors, as against creditors of the road, see Corporation, 
 
 XI. Judicial Sales. 
 
 85. Sale of marshal out of office valid. — A sale of land by a marshal, on 
 a venditioni exponas, after his removal from office, and a new marshal appointed, 
 is not void. But such sale, confirmed by the court, and a deed made by the 
 new marshal, is valid. BooUttle v. Bryan, 0. S. i. 377. 
 
 86. A purchaser at a judicial sale, who has paid only in Confederate notes, 
 cannot be regarded as a bon& fide purchaser, who has paid. Ouyler v. Ferril, 
 N. S. viii. 100. 
 
SALE— SALVAGE. 833 
 
 87. Where the United States marshal sold certain fractional sections of 
 land, as the property of one H., and the purchase-money passed into the 
 public treasury, and it was subsequently ascertained that the land so sold 
 was not the property of H., but belonged, in fact, to other persons, and that 
 H. never had any title to them, which could pass by virtue of the sale, al- 
 though the sale was made without any notice of any defect of title, and, 
 under the marshal's assurance that he would make a title, the sale being a 
 judicial sale, the vendee cannot recover the amount of the purchase-money 
 from the plaintiff in the execution, the United States. PucketiY. 2'he United 
 States, 0. S. iv. 459. 
 
 88. The marshal is the mere minister of the law, and a due discharge of 
 his duties does not require him to warrant the title of the property sold, nor 
 can he expressly or impliedly bind the plaintiff in the execution, by any as- 
 surance or warranty that he may make at the sale. Id. 
 
 89. Upon a judicial sale there is no implied warranty of title. Jd. 
 
 90. In all cases of the sale of personalty, there is an implied warranty of 
 title. J'ort V. The United States, 0. S. iv. 389. 
 
 91. Where the United States, while at war with Mexico, seized and sold 
 some tobacco as enemy's property, which subsequentlj' proved to be other- 
 wise, the purchase-money paid by the vendee can be recovered. Id. 
 
 92. The authority of military commanders in time of war considered. Id. 
 
 XII. Sale tor Taxes. 
 
 93. A sale for taxes for a year for which the taxes were paid, is invalid. 
 Eaynor v. Lee, N. S. x. 607. 
 
 94. A tax sale is not a judicial sale. Beatly v. Mason, N. S. ix. 582. 
 
 SALVAGE. See Insurance. 
 
 1. The rule of maritime law, that a passenger who has no opportunity to 
 leave a vessel in distress cannot render a salvage service, may admit of a 
 qualified exception where he has promoted her safety by an extraordinary 
 and peculiar' service which he was' not compellable to render. But in admit- 
 ting such an exception in favor of a passenger, the greatest caution is neces- 
 sary, and especially so where he is of the nautical profession. The Pennsyl- 
 vania, N. S. xiii. 561. 
 
 2. Where a, passenger of the nautical profession who has rendered such 
 service, afterwards assumed and exercised illegitimate authority over the 
 vessel, though the circumstances were not such that he incurred an absolute 
 forfeiture of the salvage compensation, its amount was nevertheless mate- 
 rially reduced by reason of such usurpation of authority. Id. 
 
 3. When a steamboat engages to tow a vessel for a fixed sum, she does not 
 warrant to tug the vessel at all risks, but merely engages to use her en- 
 deavors, competent skill, and a reasonably sufficient crew, tackle, and equip- 
 ments for the task. If a sudden violence of wind or waves puts the ship iu 
 tow in danger, and the tug incurs risks and performs duties not within the 
 scope of the original engagement, then the tug may claim as a salvor instead 
 of being restricted to the sum stipulated for towage. Ward y . MacCorkill, 0. 
 
 S. ix. 704. 
 
 4. A ship was, by order of her master, abandoned at sea, and on the next 
 day her crew, who had been taken to 'Vego, were, by order of the British 
 consul, put on board a steamer, which fell in with the abandoned ship, but 
 withoiit the master, and were accordingly put on board by the steamer; and 
 with the assistance of a smack, and other boats, the ship was subsequently 
 brought to Corunna. Held, that the crew were entitled to be rewarded as 
 salvors. The Florence, 0. S. i. 54. , . „ . ■ 
 
 5 Where a steam-tug is kept constantly employed during the winter on a 
 dangerous station, and at heavy expense, for the express purpose of render- 
 ing salvatre and towage service to vessels in distress, her owners are entitled 
 to the ful! remuneration usually awarded to salvors who peril life and prop- 
 erty though the particular salvage service may not have been actually ac- 
 companied by much danger or labor. Virden v. The Brig Caroline, O.-S. vi. 222. 
 
 6 A brig was caught and damaged in the ice in the Delaware bay, and 
 from the nature of injuries could only be rescued by the removal of her for- 
 ward cargo. This was done (and it was not otherwise possible) by and with 
 the assistance of a steam-tug stationed at the Breakwater. Part of the cargo 
 
 53 
 
834 SALVAGE— SCHOOLS. 
 
 thus removed was transshipped to the tug, and tbe brig afterwards towed by 
 her into port. The court decreed to the owner of the tug one-half of the 
 value of the cargo transshipped, and four per cent, of that of the vessel and 
 remaining cargo. Virden v. The Brig Caroline, 0. S. vl. 222. 
 
 7. Agent at Lloyd's. — An agent at Lloyd's at an outport, who had under- 
 taken to relieve a vessel from her difficulties in the character of agent, and 
 had merely employed the necessary hands to perform the service, without 
 having himself incurred any personal risk in the transaction, is not debarred 
 from claiming as salvor in the Court of Admiralty. The FurUsima Concepdoti, 
 0. S. i. 53. 
 
 8. The ship William Peun went ashore off Charleston harbor. The steamer 
 Jasper, after remaining by the ship during a night of considerable peril, 
 succeeded in dragging her over the shoal, and did not leave her until she was 
 anchored in deep water. Fifteen per cent, upon the value of the ship, toge- 
 ther with costs, allowed to the salvors. Brooks v. The William Penn, 0. S. i. 
 684. 
 
 9. Salvage services by steam vessels encouraged — additional remuneration 
 decreed. The doctrine of The Saikcs, 1 Hagg., p. 246, affirmed. The prin- 
 ciples upon which. the admiralty proceeds in awarding salvage laid down. 
 The William Beckford, 3 c. Rob. 3-55, adopted. In apportioning salvage 
 among the officers and crew of a steamer, the court regards their responsi- 
 bilities in their different stations. £qual shares given to the master and 
 pilot. Id. 
 
 10. Persons intruding illegally. — No salvage benefit can accrue to the 
 parties so intruding themselves for any portion of the ship or cargo which 
 they may save ; but the same will inure to the benefit of the original salvors. 
 The Fleece, 0. S. i. 54. 
 
 SATISFACTION. 
 
 1. It is a general rule that if one indebted to another Iiy simple contract 
 gives his creditor a promissory note or check drawn by himself for the same 
 amount, without any new consideration, the check or note shall not be 
 deemed a satisfaction of the original debt, unless so intended and accepted 
 by the parties. Mclntyre v. Kennedy, ChUds Sf Co., 0. S. v. 433. 
 
 2. If a negotiable note is accepted in satisfaction of a previous debt, the 
 person so receiving it is a holder for value, and is protected. Bat not so 
 when a note is handed over to a creditor, with directions to collect it and to 
 retain the surplus, and afterwards the debt was settled. It then reverted to 
 the former holder. Cummings v. Mead, 0. S. vi. 51. 
 
 SAVINGS INSTITUTION. 
 
 1. Officers of saving institutions are to be held to the exercise of reasona- 
 ble care and diligence. Sullivan v. L. Ins. for Saving, N. S. ix. 120. 
 
 2. Action against for deposits — setting up title in third person. Lund v. 
 Seaman's Bank, ^c, N. S. ii. 125. 
 
 3. A state legislature has power to impose a tax on the amount of deposits 
 of savings bank. Commonwealth v. People's Sav. Bank,. N. S. ii. 767. 
 
 SCENERY. 
 
 Right of municipal corporation to lay out a way upon lands of citizens, 
 wholly for access of public to points of pleasing natural scenery. Hiqqinson 
 V. Nahant, N. S. vi. 187. 
 
 SCHOOL DIRECTORS. 
 
 Mandamus upon. See In re Manheim Township, 0. S. iv. 163. 
 SCHOOL FUND. 
 
 When incorporated, the trustees of funds for the use of schools in a town, 
 constitute a private corporation, and an Act of Assembly, afterwards passed, 
 dividing the town, and directing the division of the fund, and the payment 
 of a portion of it to the trustees of the new part of the town, is unconstitu- 
 tional. Yarmouth v. Trustees of New Yarmouth, 0. S. i. 596. 
 
 SCHOOLS. 
 
 1. An act of the legislature creating a reform school, and providing for the 
 summary commitment to it of children "destitute of proper parental care," 
 is unconstitutional, as it prescribes a virtual imprisonment without due pro- 
 cess of law. The People v. Turner, N. S. x. 366. 
 
SCHOOLS— SEAMAN. 835 
 
 2. The rights of the state and of parents over children stated and discussed 
 The PeopU v. Turner, N. S. x. 366. 
 
 3. A parent sending his child to school, surrenders to the teacher such 
 control as is necessary for proper government of school. Morrow v Wood N 
 S. xiii. 692. ' ' 
 
 4. Schools established by private donations, and carried on for the benefit 
 of the public, are public charities. Gerke, Treamrer v. Purcell, N. S. xiv. 753. 
 
 5. It is the duty of a school teacher to maintain discipline in the school, 
 and to do this he may expel » scholar. Scott v. Solwol District No, 2 in Fair- 
 fax, N. S. xiii. 716. 
 
 SCHOOL TAXES. 
 
 The revised school law of 7th April, 1849. does not repeal the law of 12th 
 April, 1838, sect. 7, imposing a penalty of $20 on collectors of school taxes, 
 who fail to perform this duty. Baslet v. Smith, 0. S. i. 124. 
 
 SCHUYLER FRAUD. 
 
 On the construction of the charter of the New York and New Haven Rail- 
 road Company, that a resolution of the board of directors of that company, 
 by which Robert Schuyler was appointed "transfer agent" of its certificates 
 of stock, was a valid delegation of power, and that certificates of stock issued 
 by Schuyler as such agent were binding on the company. Ketchum v. Bank 
 of Commerce of New York, 0. S. iii. 145, 
 
 SCIRE FACIAS. 
 
 In the distribution of the proceeds of a sheriff's sale, a judgment in a scire 
 facias on a mechanic's claim is not primS, facie evidence in a contest with other 
 lien claimants. Smedley v. Conaway, 0. S. v. 442. 
 
 SCOTCH COURTS. 
 
 Comments on evidence in. 0. S. vi. 192. 
 
 SCOTCH LAW AND LAW BOOKS. 
 
 Remarks on. 0. S. iv. 577. 
 SCRIP. 
 
 Where a municipal corporation acting under the constitution of 1846, issued 
 in payment of bona fide indebtedness scrip, to circulate as money, which was 
 afterwards taken up by the issuance of ordinary warrants. Held, the trans- 
 action bound the corporation. Clark v. City of Des Moines, N. S. vi. 146. 
 
 SCRIPHOLDERS. 
 
 1. Rights of scripholders measured by contract contained in scrip. Brown 
 V. Lehigh Nav. Co., N. S. v. 184. 
 
 2. Scripholders have no rights to dividends upon stock before conversion 
 thereinto. Id. 
 
 SEAL. 
 
 1. Where it is sought to bind one who cannot read by an instrument under seal, 
 it must be shown that it was read to him. Dorsheimer v. Eorback, N. S. xi. 773. 
 
 2. Money paid under such an instrument which is invalid and void, will 
 furnish no protection to those relying on it, though paid in good faith. Id. 
 
 3. Facsimile of seal of corporation printed upon blank forms not a seal at 
 common law. Bates v. Railroad Co., N. S. v. 506. 
 
 4. The word "seal" affixed to the name of a party who signs an instru- 
 ment of writing purporting to be a deed, is as clearly indicative of an inten- 
 tion to execute a sealed instrument, as would be a seal or scroll, and is, there- 
 fore, sufficient to constitute the instrument a deed. Whitley v. Davis' Lessee, 
 O. S. i. 381. 
 
 SEALED INSTRUMENT. 
 
 A sealed instrument in these words: "Due A. $1,071, for value received, 
 which I hereby promise to pay whenever, in my opinion, my circumstances will 
 be such as to enable me to do so," does not create any legal obligation, which 
 can be enforced by action. Nelson v. Von Bonnhorst, 0. S. vi. 151. ' 
 
 SEAMAN. See Shipping. 
 
 1. Where a professional mariner made his will on board a steamer, and at 
 the time of its execution was a passenger and not a mariner in service. Held, 
 that the will was not within the exception in favor of mariners at sea. Warren 
 et al. v. Harding, 0. S. i. 408. 
 
836 SEAMAN— SECUEITY. 
 
 2. When a seaman engages in a commercial adventure, the laws of the 
 United States follow him until the voyage is completed, whether in a foreign 
 country or the Union. Roberts v. Skolfield, 0. S. viii. 156. 
 
 3. The rights of American sailors, shipping in American vessels, for pro- 
 tection against injuries received from a superior officer, in a foreign or home 
 port, stated and cases cited. Id. 
 
 4. The daily allowance to seamen, in the merchant service, ought to be 
 equivalent to the navy ration. The John L. Dimmick, 0. S. ix. 224. 
 
 5. Sailors on the lakes are merchant seamen, and are entitled in a proper 
 case to be cured at expense of vessel. Morgan v. Schooner, N. S. vi. 707. 
 
 6. By the maritime law seamen must be cured of disease contracted during 
 term of employment when not produced by their own fault, at the expense 
 of the ship. Mosely v. Scott, N. S. v. 699. 
 
 7. The sailor on a western river is entitled to same privilege as a merchant 
 seaman on foreign voyages. Id. 
 
 SEAMEN'S WAGES. 
 
 1. It seems that maritime liens, such as for seamen's wages, are discharged 
 by a sale on execution in Pennsylvania, and that the claimants are turned 
 over to the fund in the hands of the sheriff. Carryl v. Taylor, 0. S. ii. 333. 
 
 2. By the terms of the treaty between the United States and the Hanseatic 
 towns, a Court of Admiralty here has no jurisdiction of a libel for wages by 
 a Bremen sailor against a Bremen vessel, though he had shipped in the 
 United States. Kendept v. The Barque Korner, 0. S. iii. 47. 
 
 3. Where a boat sold under an order of a Court of Admiralty, and 
 the fund is insufficient to pay all the claims against it. Claims of sea- 
 men for wages, having a subsisting admiralty lien, if the fund is sufficient 
 will be fully paid. Dudley v. The Steamboat Superior, 0. S. iii. 622. 
 
 4. The rule which deprived the seamen of wages if no freight was earned, 
 does not apply to the master of a ship. Hawkins v. Twyzill, 0. S. iv. 563. 
 
 5. Libel in rem for seamen's wages — libellant was a citizen of Bremen, to 
 which place the barque belonged. Held, by C. C. of U. S. that the court had 
 no jurisdiction — that application must be made to the consul for Bremen. 
 Kendept v. Barque Theodore Korner, 0. S. iii. 47. 
 
 . SEAKCHES. 
 
 1. The county clerk is liable for damages resulting from errors in his 
 searches, Kimball v, Connolly, N. S. vi. 598. 
 
 2. Where the purchaser of the search is put in no worse condition by re- 
 lying on the search than he was before, he can claim no damages. Id, 
 
 SEAWORTHINESS. 
 
 There is no implied warranty of seaworthiness in a contract between the 
 owner of a ship and a seaman to serve on board of it for a particular voyage. 
 Couch V. Steel, 0. S. ii. 685. 
 
 SECESSION. See Confederate States. 
 
 Citizens faithful to the U. S., who resided in the seceding states, and es- 
 caped to the loyal states or neutral countries, lost no rights by their tempo- 
 rary residence in the seceding states. The Peterhoff, N. S. vii. 62. 
 
 SECOND ACTION IN ENGLAND. 
 
 Pending proceedings in Scotland, An appearance under protest to the 
 jurisdiction of the court by the defendant, upon the plea of a lis alibi pen- 
 dens, overruled, and the party assigned to appear absolutely. The Bold Bue- 
 cleugh, 0. S. i. 54. 
 
 SECURITY. 
 
 1. A special partner may, under the law in New York, purchase securities 
 which are sold by his partners as pledges forfeited for non-payment of notes 
 held by the firm. James M. Lewis v. John A. Graham and Others, 0. S. v. 368. 
 
 2. Holder of bills or notes as security may refuse to deliver, until pay- 
 ment of the debt, Benoir v. Paquin, N. S. vii. 634. 
 
 3. Mortgage security to accommodation endorser — rights of endorsee on 
 insolvency of maker and endorser. Sav. Inst. v. Bank, N, S. iv. 611. 
 
 4. Holder of note as collateral must present it at maturity. Peacock v. 
 Percell. N. S. iii. 440. 
 
 6. Mortgage to secure future advances, where the mortgagee has definitely 
 
SECUEITY— SEDUCTION. 837 
 
 agreed to make such advances when recorded. Bomell y. Goodwin. N. S. 
 ui. 79. ' 
 
 6. Vendor not bound to abandon his lien until purchase-money paid, though 
 he may have accepted new collateral security. Johnson v. Scott, N. S. iii. 634. 
 
 7. Duty of pledgee holding collateral security for an indefinite time. Sit- 
 greaves v. Bank, N. S. v. 249. 
 
 8. No specific lien on goods when parly promises to hold the goods for 
 other's benefit. Gibson v. Stone, N. S. v. 188. ' 
 
 9. When commercial paper is pledged as collateral security for advances, 
 the pledgee in good faith is entitled to hold it for amount of advances Bel- 
 mont B. Bank v. Soge, N. S. vi. 227. 
 
 _ 10. Holder of notes as collateral is a trustee of an express trust, and suit 
 IS properly brought in his name. Clark v. Titcomb, N. S. iv. 124. 
 
 11. A president of a corporation, who has received bonds from his com- 
 pany to hold as collateral security for an indorser for the company, becomes 
 a trustee, and is personally responsible for the execution of the trust. Wil- 
 kinson V. Stewart, N. S. iii. 313. 
 
 12. Sale for less than value. Fletcher v. Dickinson, N. S. iii. 505. 
 
 13. Application by holder. Wilcox v. Bank, N. S. iii. 567. 
 
 14. Collateral, is lost by giving up possession to owner, even with restric- 
 tions as to use. Walker v. Staples, N. S. ii. 444. 
 
 15. Where a mortgage ia given to secure a debt, whether the debt be in a 
 negotiable form or not, a transfer of the debt transfers in equity the secu- 
 rity, if the security has not previously been surrendered by the creditor. 
 Jones V. The Quinnipiack Bank, N. S. i. 314. 
 
 16. But where a mortgage is given, not to secure a debt, but to indemnify 
 a surety, there the security does not, in the first instance, attach to the debt, 
 as an incident to it, but whatever equity may arise in favor of the creditor 
 with regard to the security, arises afterwards, and comes into existence only 
 upon the insolvency of the parties holden for the debt. Id. 
 
 SEDUCTION. 
 
 1. Previous seduction of the woman is no defence in action for. People v. 
 Millspaugh, N. S. ii. 697. 
 
 2. In action for, loss of service must be averred and proved, Ingersoll -t. 
 Miller, N. S. vi. 443. 
 
 3. Proof necessary therein. Id. 
 
 4. What amount is sufficient. Id. 
 
 5. Must be pregnancy, ill-health, or injury to give right of action. Id. 
 
 6. Eequirement of actual loss or injury in such case. Id. 
 
 7. When proof of actual loss not required. Id. 
 
 8. Damages therein. Id. 
 
 9. In an action for damages for breach of promise to marry, the jury, in 
 estimating the damages, may consider the fact of seduction. Sauer v. Schu- 
 lenberg, N. S. x. 478. 
 
 10. The plaintiff's daughter was the domestic servant of the defendant's 
 father; the plaintiff having a contract to make shirts, similar contracts to 
 which she had frequently employed her daughter at the defendant's father's 
 house, when she had finished her mistress's work, during over hours and 
 leisure time, and with her mistress's knowledge and consent, in helping 
 her to make these shirts. During this time, and when in defendant's father's 
 service, she was alleged to have been seduced by the defendant. Held, in an 
 action against the defendant by the mother for the seduction of her daughter, 
 that this was not sufficient evidence of loss of service to support the action 
 for seduction. Thompson v. Boss, 0. S. viii. 188. 
 
 11. The parent as such has no direct remedy at common law for the se- 
 duction of a daughter. He has to resort therefor to what has been denom- 
 inated "but little more than a matter of fiction," the relation of master and 
 eervant, assumed to exist between parent and child, in order to redress this 
 wrong. Two distinct actions, it is true, are submitted to his option, but 
 both have relation to this hypothesis of loss of service, upon which they 
 are dependent, in the one case, as matter in the aggravation of damages, 
 and, in the other, as the very gist of the action itself, Parker v. Meek, Sr., 
 0. S. V. 498, 
 
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 MI'',IIVII'l'', UK WHIT. 
 
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 .1/,'.?;,(W V. IMloH, N, H. U. 111.-., 
 
840 SET-OFF. 
 
 7. In a suit by A. v. B., B. cannot file in offset a judgment recovered ty 
 M. against A. and assigned to B. before the commencement of A.'s suit. 
 Eowe T, Langley, N. S. ix. 518. 
 
 8. An unliquidated and uncertain claim for damages is not a subject of 
 set-off. Smith Y.Washington Gas-IAgM Co., N. S. ix. 581. 
 
 9. Equitable claim may be set off against one purely legal. R. B. Co. v. E. 
 R. Co., N. S. Tii. 180. 
 
 10. A trustee has the right to set off all bond fide claims against the princi- 
 pal debtor, though the property may have come into bis possession by an 
 arrangement clearly fraudulent as against creditors. Kelly v. Ellison and 
 Trustee, N, S. iii. 126. 
 
 11. The right of set-off is wholly regulated by statute, Robinson v. Safford, 
 N. S. X. 133. 
 
 12. A mere liability as endorser, is not allowable as set-off. Id. 
 
 13. But money received by plaintiff for his unauthorized transfer of 
 defendant's stock, is. Id. 
 
 14. Also drafts drawn by defendant for accommodation of plaintiff and paid 
 by the former. Id. 
 
 15. Also amount paid by defendant to redeem stock, pledged by plaintiff 
 under power of attorney, for money loaned by a bank to him. Id. 
 
 16. A judgment for costs against a decedent's estate cannot be set off in a 
 suit by the administrator against the judgment plaintiff, on a note executed 
 by the latter to the decedent. Nave v. Wilson, N. S. x. 743. 
 
 17. But a judgment on a claim against the decedent can. Id. 
 
 18. In a suit by a trustee, the defendant may set off a debt due him from 
 the cestui que trust. Waddle v. Harbeek, N. S. x. 747. 
 
 19. There may be a set-off to a set-off. Galligan v. Faunder, N. S. iv. 510. 
 
 20. The obligee in a bond of indemnity, has no cause of action against the 
 obligor, which he can set-off in an action against himself by the obligor; 
 unless he has suffered a loss covered by the bond, Abeles v. Cohen, N. S. xi. 62. 
 
 21. A state being sovereign, is not liable to be sued by an individual, and 
 no right of set-off exists in the actions instituted by it, unless expressly 
 allowed by statute. State of Maryland v. B. ^ 0, R. R., N. S. xi. 55. 
 
 22. A purchaser buying goods from a broker which are not in his posses- 
 sion cannot set off a claim against the broker in a suit fo.r the purchase- 
 money. Dunn V. Wright, N. S. viii. 59. 
 
 23. A note of plaintiff's due nnd held by defendant before the suit, is 
 proper subject of set-off, though plaintiff had no notice of it before his action. 
 Cook V. Mills, N. S. ii. 443. 
 
 24. Damages for breach of a partnership contract cannot be set off against 
 one partner in a suit on an individual contract of his own. Jackson et al. v. 
 Clymer, N. S. ii. 635. 
 
 25. Set-off as between partners. Walker v. Eyth, 0. S. iv. 443. 
 
 26. There is no reason why an attorney may not plead set-off to suit by his 
 client. Noble v. Leary, N. S, xii. 530. 
 
 27. Where one broker employs another to sell the stock of his principal, 
 the latter cannot set off a debt due him by the original broker in a suit by 
 the principal for the proceeds. Evans v. Wain, N. S. xii. 728. 
 
 28. Where, after suit brought by the attorneys of a bank on a mortgage, a re- 
 ceiver of the bank is appointed, the attorneys have no right of set-off against 
 the proceeds for their services. The B. O. Sav. Bank v. Todd, N. S. xii. 599. 
 
 29. Semble, that set-off is matter of procedure. McFarlane v. Norris, N. S. 
 iii. 442. 
 
 30. Where the defendant has filed his account as a set-off, the plaintiff 
 may plead the statute. Rollins v. Horn, N. S. iii." 382. 
 
 31. Where a bank has failed and passed into the hands of a receiver, a de- 
 positor may set off the amount of his deposit against his debt to the bank on 
 note. Piatt v. Bentley, N. S. xi. 171. 
 
 32. The vendor's defence is not set-off which is a cross action, and in which 
 the personal liability of the vendor to damages would have arisen. Cross v. 
 Noble, N. S. xii 266. 
 
 33. Guarantee of private debt of one partner in contemplation of insol- 
 vency, cannot be proved against the joint estate by a creditor who knew the 
 firm to be insolvent. Phillips v. Ames, N. S. ii. 698. 
 
SET-OFF. 841 
 
 34. Set-off in case where administrntor sues in liis own name for intes- 
 tate's goods sold by him. Aikin v. Bridgman, N. S. T. 316. 
 
 85. After a national association had become insolvent, its debtor could not 
 purchase notes for which it was liable to set ofif against his debt. Thorp v. 
 Wegefarth, N. S. viii. 62. 
 
 36. Where several persons are assignees of a debt in different proportions, 
 and are severally sued by (he debtor on other claims due by them, each may, 
 in such suit, set off so much of the assigned debt as is due to him. Smith v. 
 Myler, 0. S. ii. 122. 
 
 37. If defendant is prevented by accident from setting up set-offs, he must 
 pursue his remedy at law for their recovery, and is not entitled to enjoin the 
 judgment, and set up his offsets against it. Hudson v. Kline, 0. S. iii. 53. 
 
 n. What Demands may be Set off. 
 
 38. A debt not in judgment cannot be set off to a judgment. Thorp v. 
 Wegefarth, N. S. viii. 62. 
 
 39. There is no right to tender a chose in action against the creditor in 
 payment of a judgment or execution. Id. 
 
 40. Vendee cannot default from the purchase-money the value of a public 
 road through the land. Peck v. Jones, N. S. xii. 408. 
 
 41. General rule that joint and separate debts and debt accruing indiffer- 
 ent cannot be set off. Brewer v. Norcross, N. S. v. 63. 
 
 42. Equity is independent of statutes of set-off will allow though debts are 
 not mutual. Id. 
 
 43. An endorsee of over-due paper takes it subject to equities connected 
 with it, but not to set-off generally. Long v. Rhawn, N. S. xiv. 116. 
 
 44. An answer of set-off is not demurrable because it does not answer the 
 entire complaint. Mullendore v. Scott, N. S. xiv. 60. 
 
 45. As a general rule debts sued for and intended to be set off must be 
 mutual and due in the same right. Prouty y. Hudson, 0. S. iii. 40. 
 
 46. Set-off only allowable for such claims as in good faith absolutely be- 
 longed to the party at the commencement of the action. Straus v. Insurance 
 Co., 0. S. iv. 629. 
 
 47. A debt due to the defendant as executor, for money had and received 
 after the death of the testator, may be set off against a debt due from the 
 defendant as executor, which become due from the testator before his death. 
 Mardall v. Thelluson, 0. S. i. 561. 
 
 48. Judgment may be moved for non obstante veredicto on a plea of set- 
 off. Id. 
 
 49. Set-off in action for rent — for necessary repairs and damages. Myers 
 V. Burns, N. S. vi. 380. 
 
 50. The equity to have the set-off does not arise till judgment is entered 
 in the second action. Mackey v. Mackey, N. S. iv. 437. 
 
 51. Purchaser not bound to set up breach of warranty in set-off to price of 
 goods. Barth v. Burt, N. S. v. 256. 
 
 52. The right to set off the value of improvements against a claim of dam- 
 ages in ejectment depends upon their permanency. Carpentier v. Small, N. 
 S. viii. 505. 
 
 53. Defendant in suit for value of goods delivered may set off damages 
 from failure of plaintiff to furnish the full quantity agreed upon. Fishell v. 
 Winans, N. S. ii. 630. 
 
 54. A suit brought for one portion of a demand, or for one of several 
 demands on the same contract, is a bar to a subsequent suit for the residue 
 when pleaded as a set-off. Hopfy. Myers, N. S. iv. 125. 
 
 55. In distribution of estate a debt not yet due by_insolvent cannot be set 
 off against one due him. Bank' s Appeal, N. S. iv. 637. 
 
 56. Landlord cannot set off rent due in a suit by a receiver for price of 
 goods sold on premises, to him. Singerly v. Fox, N. S. xiv. 126. 
 
 57. Whenever damages may be recoverable by a vendee for matters arising 
 out of the contract of purchase, they may be insisted on as a set-off. Eads 
 V. Murphey, N. S. xiv. 400. 
 
 58. Set-off in action for rent for necessary repairs and damages. Myers v. 
 Burns, N. S. vi. 380. 
 
 59. Equitable claim may be set off against one purely legal. R. R. Co. v. 
 B..R. Co.,0. S. vii. 186. 
 
842 SETTLEMENT— SHERIFF. 
 
 SETTLEMENT. 
 
 Not acquired in N. Y. by living in house built by mistake on another's 
 land, adjoining own. Wellfleet v. Frua-o, N. S. v. 186. 
 
 SETTLEMENT OP ACCOUNTS. 
 
 Error in, corrected by bill in equity. See BivingsvilU Manuf. Co. t. Bvoings, 
 0. S. iii. 673. 
 
 SETTLER ON PUBLIC LANDS. 
 
 Where a settler on public lands, entitled to a pre-emption, procures a 
 capitalist to pay the purchase-money into the land office. ^Yright v. Shum- 
 way, 0. S. ii. 20. 
 
 SEVERANCE. 
 
 The fragments of a building blown down by a tempest are not converted 
 thereby into personalty, but pass to the purchaser of the realty at sheriff's 
 sale. Rogers v. Oillinger, 0. S. vi. 430. 
 
 SEWER. 
 
 1. Where a city constructs a sewer, it is not bound to construct one which 
 will carry off the sewerage under all circumstances. Atchison v. Challis, N. 
 S. xi. 775. 
 
 2. Duties and liabilities of municipal corporations in respect to sewers. 
 . Barton v. Syracuse, N. S. ii. 314. 
 
 SHEEP. 
 
 Is a sheep mutton ? In the matter of stealing two sheep. Legal Miscel- 
 lany, 0. S. i. 504. 
 
 SHELLEY'S CASE — RULE IN. See Tkust and Tkhsteb. 
 
 1. Leading article on, 0. S. i. 583. 
 
 2. Conveyance by N. D. to H. F. in trust to have and hold the said prem- 
 ises "unto the said H. F. and his heirs, to the use of the said H. F. and his heirs," 
 in trust nevertheless for the sole, separate, and only use of S. D. (wife of 
 the grantor), during the term of her natural life, S. D. survived her husband. 
 The rule in Shelley's case applied. Banner v. 'Prescott, 0. S. ii. 366; and see 
 Ware v. Richardson, 0. S. ii. 485. 
 
 3. A trustee will not be permitted to carry on unnecessary litigation to 
 the injury of a third person merely for the purpose of earning commissions. 
 Frevall v. Barclay, 0. S. ii. 172. 
 
 SHERIFF. See ExEcniiON, Sale. 
 I. Ahthority and Liability of Sheriff. 
 
 1 . /( seems that if the prisoner had left the jail liberties in obedience to the 
 subpoena, and had not been arrested on a warrant to answer for an alleged 
 contempt, the sheriff would have been liable. Wilckens v. JUllet, N. S. iv. 404. 
 
 2. Must take property under an attachment into his actual custody. Smith 
 V. Orser, N. S. iv. 768. 
 
 3. Levy on partnership property — action against sheriff. Id. 
 
 4. A sheriff is estopped from showing that goods, left with a receiptor who 
 claimed to be the owner, did not belong to the judgment-debtor, where ho 
 has obtained a judgment for their value for non-delivery against such re- 
 ceiptor. The People ex rel. Knapp et al. v. Reeder, Sheriff, N. S. iii. 57. 
 
 5. In making a levy, should allow for the sacrifice of public sale. French' 
 y. Snyder, N. S. iii. 312. 
 
 6. In an action against a sheriff for an insufScient levy, he should show 
 that he used reasonable diligence as to the sufficiency of the property he 
 took. Id. ' 
 
 7. In such action the measure of damages is the actual loss to the plain- 
 tiff by the sheriff's neglect. Id. 
 
 8. When a sheriff takes goods in execution or by attachment, or in an 
 action where the plaintiff seeks to recover possession of them, he becomes a 
 bailee for the benefit of all parties interested. Moore v. Westervelt, N. S. ii. 683. 
 
 9. In such case his duties are analogous to those of a bailee where the 
 bailment is beneficial to both parties, as in case of hiring, and he is respon- 
 sible only for such loss or damage to the goods as results from his want of 
 ordinary care. Id. 
 
SHERIFF. 843 
 
 10. Liability for acts of liis deputy — proof of deputy's authority in action 
 against sheriff. Curtis v. Fay, N. S. ii. 62. 
 
 11. Neglect to arrest a debtor is such a wrong to the interests of creditor 
 as is assignable, and will survive to his executors; but sheriff, in mitigation 
 
 • of damages, may show the circumstances and condition of the debtor. Di- 
 vinney v. Fay, N. S. ii. 560. 
 
 12. Sheriff neglecting to collect and return an execution is liable to plain- 
 tiff for the amount of the execution, unless he show that defendant had no 
 property out of which he could have collected the debt. Bowman v. Cornell, 
 N. S. ii. 702. 
 
 13. A sheriff is a quasi bailee of property seized by him under process, and 
 only bound to use such care and diligence as a bailee for compensation. 
 Price V. Stone, N. S. xiii. 61. 
 
 14. Right of sheriff to action against proceeds of assigned property to 
 make money on an execution. Lawrence v. Bank, N. S. vi. 378. 
 
 15. Though the rule is that, as between parties, the return of the sheriff 
 is conclusive, it is not to be construed so as to prevent inquiry in original 
 process, as to whether the place where the summons was left was the resi- 
 dence of the defendant or not. Bond v. Wilson, N. S. xi. 62. 
 
 16. A sheriff's return is part of the record, and on a sale confirmed by the 
 court, he cannot be allowed to show that he has not received the purchase- 
 money, where the return is that he collected it. Ferguson v. Tult et al., N. S. 
 xi. 270. 
 
 17. A sheriff's sale may be confirmed at any time after return. Id. 
 
 18. Though a writ be irregular, if the court has jurisdiction, it will be a 
 protection to the sheriff serving it. Fall Creek Coal Go. v. Smith, N. S. xii. 735. 
 
 19. The sheriff is bound to serve, without inquiring into the regularity of 
 the writ. Id. 
 
 20. If process be inherently without eificacy, it is void as to all persons. Id, 
 
 21. The refusal of the deputy to pay over money thus obtained, to one en- 
 titled to receive it, on demand, is a misfeasance, for which the sheriff is liable. 
 Norton v. Ni/e, N. S. ix. 126. 
 
 22. Sheriff not liable for defective return made by plaintiff's direction. 
 Stevens v. Colby, N. S. v. 703. 
 
 23. After the liability of a sheriff has become fixed by the neglect of his 
 deputy, a mere agreement by the plaintiff not to commence proceedings 
 against the deputy, until the maturity of certain notes, will not operate as a 
 release of the sheriff's liability. McKinley v. Tucker, N. S. x. 669. 
 
 24. A sheriff, or any other ministerial officer, may arrest fugitives from the 
 justice of any state in the Union, and detain them for a reasonable time, until 
 the requisition of the executive can be made. John Sea, Plaintiff in Error v. 
 Nathaniel Smith et al., 0. S. v. 98. 
 
 25. The United States Admiralty Court has no jurisdiction over a vessel 
 whilst she is in the hands of the sheriff, by virtue of a legal process. Taylor 
 T. Carryl, 0. S. vi. 646. 
 
 26. A sheriff, acting under an execution, at the suit of a judgment-creditor 
 of one partner in a firm, can sell and deliver no part of the partnership goods. 
 Deal et al, v. Bogue, 0. S. i. 301. 
 
 27. Judgment being for damages only, the sheriff is not liable by reason 
 of failure to justify of sureties for delivery of the property. Gallerati v. 
 Orser, N. S. iv. 190. 
 
 28. The United States courts have not jurisdiction to restrain a sheriff from 
 selling under an execution from u state court. Buggies v. Simonton, N. S. 
 xii. 461. 
 
 29. Power and duty of sheriff in regard to arrest of fugitives from justice. 
 See Public Officer. 
 
 30. Sheriff in possession of a ship, U. S. marshal cannot lawfully seize 
 under an attachment out of U. S. court. Taylor, Adm'r v. Carryl, 0. S. vi. 646. 
 
 31. A sheriff is not liable for interest on money collected by him on exe- 
 cution, until after demanded, and a rule on him to pay the money into court, 
 where there is a dispute among the execution-creditors, cannot be regarded 
 as equivalent -to a demand, even though he does not account for the dispo- 
 sition of the money in the meantime. Hantz v. Commonwealth, 0. S. i. 637. 
 
 32. A sheriff is not bound to take notice of a rule not served on him. Id. 
 
844 SHEEIFF. 
 
 33. Obedience to such a rule is to be enforced by attachment, and not by 
 an action-interest for his disobedience. Hantz v. Commonwealth, 0. S. i. 637. 
 
 34. Remaining in possession an unreasonable time, trespass. — A sheriff 
 taking possession, under a writ of fi. fa., and remaining in possession an un- 
 reasonable time, is liable to an action of trespass. Ash v. Dawnay, 0. S. i. 309. 
 
 35. Liability of sureties of, as to writs placed in his hands. Tyree v. Wilson, 
 0. S. ii. 768. 
 
 36. A sheriff acts ofBoially in selling the property of a stranger to the exe- 
 cution as the property of the defendant therein. He may take an indemnity 
 from the plaintiff for such an act, when done in good faith, but cannot give 
 an indemnity to the bidders at the sale. Bell v. Pratt, N. S. i. 767. 
 
 37. The surety of a sheriff is not released from liability for claims due to 
 the county by the sheriff, by reason of the neglect of the county commis- 
 sioners to retain other moneys due by the county to the sheriff, when they 
 had opportunity. The county is part of the public, and not chargeable with 
 Buoh neglect of its officers. Washington Co. v. Marshman's Bail, 0. S. ii. 122. 
 
 38. When a sheriff, with a fi. fa. in his hands, refuses to levy upon goods 
 pointed out to him as the defendant's, which are, in fact, his, he is, in an 
 action for false return of nulla bond, liable for all damages which the plain- 
 tiff in the execution suffered by means of his refusal. The amount of the 
 plaintiffs execution is not the measure of damages, for there may have been 
 other previous executions in the sheriff's hands that would have taken all the 
 proceeds. Forsyth v. Dixon, 0. S. ii. 122. 
 
 39. The return, upon fi.fa., that it was levied "upon the property of" the 
 execution-defendant, without designating the kind, quality, or value, and ac- 
 companied by no other paper or memorandum to remove the uncertainty, ia 
 void for uncertainly. Law v. Smith, 0. S. i. 694. 
 
 40. Object of the sixty days allowed sheriff to execute and return process 
 of execution. Remand v. O'Brien, N. S. vi. 255. 
 
 41. When a, creditor's bill can be maintained, after return of nulla bona, 
 but within the sixty days. Id. 
 
 42. Carelessness in a purchaser at sheriff's sale. Waldron v. Letson, N. S. 
 vi. 571. 
 
 II. Of the Sheeiff's Fees and Pkivileqes. 
 
 43. An attorney issuing an execution is liable to the sheriff for his pound- 
 age thereon. Campbell v. Cqllison, N. S. xiii. 198. 
 
 44. But not on the amount the judgment has been reduced by the court 
 since the execution issued. Id. 
 
 45. Lawful money cannot be held derelict in the hands of a deputy-sheriff 
 into whose possession it came by virtue of a search-warrant. Norton v. Nye, 
 N. S. ix. 126. 
 
 46. The obligor on a bond of indemnify is liable to the sheriff as well as 
 to the persons claiming the property. Stewart v. Thomas, N. S. ix. 327. 
 
 47. The obligor may make any defence, when sued by the sheriff, that the 
 latter could have made in the original suit on his official bond. Id. 
 
 III. Action Against the Sheriff. 
 
 48. A sheriff is liable for the escape of a prisoner, committed to his cus- 
 tody on final process in a civil action, unless it takes place through the act 
 of God, or of a public enemy, or through the act of the law. Wilckens v. 
 Willet, N. S. iv. 404. 
 
 49. It will be a sufficient defence to show that such prisoner was taken 
 from his custody, and retained by the sergeant-at-arms of the House of 
 Kepresentatives of the United States, by means of a warrant issued by the 
 House in due form of law, to cause the prisoner to be brought before it to 
 answer for an alleged contempt. Id. 
 
 50. The proceeding on such a warrant is an "act of the law." Id. 
 
 51. In an action against a shei-iff for an escape suffered by his deputy, the 
 return of a rescue upon the writ is not conclusive evidence in favor of the 
 defendant. Whithead v. Keyes, N. S. i. 471. 
 
 52. If the defendant in a bastardy suit escapes, and judgment is recovered 
 against the sheriff for the escape, he cannot be retaken and imprisoned. 
 Ex parte Voltz, N. S. xii. 660. 
 
 63. Recovery against, for an escape. Matter of Chamberlain, N. S. iv. 318. 
 54. A sheriff may be amerced for official misconduct after his term has 
 expired. Armstrong v. Grant, N. S. x. 669. 
 
SHEEIFF— SHERIFF'S SALE. 845 
 
 55. In suit against a sheriff for default of his deputy, the latter being re- 
 leased is a competent witness. Stevens v. Colby, N. S. v. 703. 
 
 56. A count in a suit against a sheriff on his official bond is not a count in 
 trespass. IVice v. Stone, N. S. xiii. 61. 
 
 57. The pendency of an action of trespass against a deputy for wrongful 
 acts cannot be pleaded in abatement in an action against the sheriff for the 
 same cause. Severy \.M/e, N. S. x. 667. 
 
 58. A sheriff's return to an execution showing the collection of the money 
 is oonclusiTe upon his securities in a suit for not paying it over. Baqot v. 
 State, N. S. X. 749. 
 
 69. In a criminal proceeding against the sheriff, it was held the coroner 
 could not commit him to the county jail of which, and of all the prisoners 
 therein, the sheriff has by statute the custody. Adams v.Vose, 0. S. iii. 57. 
 
 60. Amount of damages in replevin upon the recovery by sheriff. Buck v. 
 Semsen, N, S. vi. 125. 
 
 61. Right of state to bring civil action against its own oflicers for neglect. 
 iVoie to Commonwealth v. Seed, N. S. vi. 162. 
 
 62. The commonwealth may maintain a civil action for its own use for 
 damages against a sheriff for "breach of his official bond. Commonwealth v. 
 Seed, N. S. vi. 162. 
 
 IV. Of the Distkibtjtion op the Fund. 
 
 63. Payment of money into court. In this state, since the foundation of 
 the province, the practice has been for the sheriff to sell on all the execu- 
 tions in his hands, leaving the distribution of the money, to the court. But 
 if the sheriff chooses, to prevent delay and save expense, to pay the money 
 raised upon the execution to the creditor supposed to be entitled to it, the 
 payment is unofficial and informal, and should the payment be wrongful, he 
 is not protected. McDonald v. Todd, 0. S. i. 250. 
 
 SHERIFF'S SALE. See Sale. 
 
 1. After confirmation, it is too late for the sheriff or his sureties to raise 
 any question as to irregularity. Feranson v. Tutt et al., N. S. xi. 270. 
 
 I. Unexecuted parol agreements to buy in property at sheriff's sale forthe 
 defendants in the execution, can only be sustained on the ground of fraUd. 
 Merritt -7. Brown, N. S. x. 351. 
 
 3. Mere inadequacy of price is not sufficient to set aside a sheriff's sale, 
 nor is it per ae proof of fraud. Kloepping v. Stellmacher, N. S. x. 351. 
 
 4. A purchaser at a sheriff's sale knowing a third person is in possession 
 is put on inquiry as to the title. Maupin v. Emmons, N. S. i. 750. 
 
 5. Relates back to time of sale, and may be made to purchaser's adminis- 
 trator. Seynolds v. Darling, N. S. iv. 382. 
 
 6. Qualification where rights of third persons intervene. Id. 
 
 7. Need not recite the particular execution under which he sold the land 
 conveyed. Smith v. Gage, N. S. ii. 438. 
 
 8. The fragments of a building blown down by a tempest are not thereby 
 converted into personalty, but pass to the purchaser of the realty at sheriff's 
 sale. Sogers v. Gillinger, 0. S. vi. 430. 
 
 9. Irregularities in a sale made by a sheriff are only cognizable in the 
 court from whence the execution issued. Wilson v. Miller, N. S. ix. 446. 
 
 10. Will be set aside where there is gross inadequacy of price, and owner 
 has been prevented by mistake from attending it. Metnler v. Shaumann, N. S. 
 xiii. 198. 
 
 II. One who contributes to such mistake even innocently cannot be per- 
 tuitted to take advantage of it. Id. 
 
 12. Owner of goods taken on execution against another person may forbid 
 sale, and afterwards buy in the goods without impairing his right of action 
 for the trespass. Ford et al. v Williams, N. S. ii. 249. 
 
 13. A refusal by sheriflF to adjourn a sale, is no ground for setting the sale 
 aside. Morris v. Woodward, N. S. xiv. 826. 
 
 14. On a sheriff's sale of mortgaged premises, where the sheriff was 
 oflFered the whole amount of the debt for an undivided half of the tract, pre- 
 vious to the sale, but refused it and sold the whole mortgaged premises, the 
 sale should be set aside. Quaw v. Lameraux et al., N. S. xiv. 707. 
 
 15. The fact that purchaser had conveyed a part of the property should 
 
846 SHEEIFF'S SALE— SHIPPING. 
 
 not prevent the sale being set aside, the conveyance being made pending the 
 motion to vacate. Quaw v. Lameraux et al.,. N. S. xiv. 707. 
 
 16. In the distribution of the proceeds of a sheriff's sale, a judgment in a 
 ecire facias on a mechanic's claim is not primA facie evidence in a contest with 
 other lien claimants. Smedley v. Conaway, 0. S. v. 442. 
 
 17. The purchaser of land, under a slieriff's sale, acquires, by virtue of 
 the conveyance, a legal title to the growing crops then upon the land. Bloom 
 V. WeUh, 0. S. viii. 97. 
 
 18. The remedy against a purchaser who refuses to complete a purchase 
 under a decree or judgment of a court of equity, is by an application to the 
 court to compel him to complete it, or to resell the property, and hold him 
 responsible for the loss and additional expenses. Miller v. Collyer, N. S. i. 
 572. 
 
 19. A paper signed by an individual, on becoming a purchaser of property at 
 a sheriif's sale under a judgment, by which he agrees to comply with the 
 conditions of sale, is not a contract either with the sheriff or the plaintiff in 
 the foreclosure suit, upon which an action can be maintained by the latter, 
 as the assignee of the sheriff. Id. 
 
 20. Such an instrument, in the form of a memorandum at the foot of the 
 conditions of sale, signed by the purchaser, is merely a submission by him 
 to the jurisdiction of the court, in the foreclosure suit, as a purchaser under 
 the judgment therein. Id. 
 
 21. On sale of stereotype plates the plates need not be actually exposed to 
 view, if at the time thereof an opportunity was given to the purchaser to go 
 and examine them. Bruce v. Westervelt, 0. S. v. 314. 
 
 22. Sheriff cannot sell by sample. Id. 
 
 23. Equitable liens will be divested by sheriff's sale, except in special 
 cases. Iliester v. Green, N. S. iv. 639. 
 
 24. Fraudulent conveyance does not disturb a lien, and is not payable out 
 of the proceeds of a sale under subsequent judgment. Moffmarl s Appeal, N. 
 S. iii. 309. 
 
 25. Equity cannot correct a misdescription of land sold at sheriff's sale at 
 the suit of the purchaser. Rogers v. Abbott, N. S. xii. 532. 
 
 26. A sheriff's sale of A.'s property on an execution against another, vests 
 no title in the purchaser. Bryant v. Whitcher, N. S. xii. 598. 
 
 27. In distribution of proceeds of sheriff's sale, only those creditors ask- 
 ing issue can have benefit therefrom. ShicKs Appeal, N. S. v. 253. 
 
 28. When such liens will not be divested by sheriff's sale. Strauss' Appeal, 
 N. S. V. 254. 
 
 29. Where artifice or trick in procuring property at sheriff's sale at an 
 under value, the purchaser takes as trustee as ex maleficio. Faust v. Sfaas, N. 
 S. xiii, 456. 
 
 SHIP-BROKER. 
 
 Does not earn commission by merely introducing the customer to the seller, 
 but he may prove a custom which will entitle him. Cook v. Welch, N. S. iv. 
 446. 
 
 SHIPPING. 
 I. Geneballt. , 
 
 1. Carrier by sea— damage by rats. Laveroni v. Drury, 0. S. i. 809. 
 
 2. Coal barges not the subject of admiralty jurisdiction. Jones v, Cincin- 
 nati Coal Co., 0, S. iii. 891. 
 
 3. Belligerent ships — opinion of Attorney-General as to purchase of by 
 citizens of the United States. 0. S. iii. 577. 
 
 4. Belligerent ships— neutral's title to. Opinion of Hon. Caleb Cushing as to. 
 0. S. V. 94. 
 
 5. Where a vessel is stranded before the policy of insurance expires, but 
 the expense of getting her off is incurred afterwards, the insured is entitled 
 to recover the whole loss. Potuell v. Insurance Co., 0. S. i. 110. 
 
 6. Robbery committed on Long Island Sound, not properly indicted as 
 committed in the county of New York. Manly v. The People, 0. S. i. 180. 
 
 7. Contract for sale of ship cannot be enforced unless it be in writing and 
 contain recital of certificate of registry. Duncan v. Tindal, 0. S. ii. 61. 
 
 8. Ships' lights and the rule of the road, a leading article upon. 0. S. vi. 1. 
 
SHIPPING. 847 
 
 9. Ship in progress of building — assignment of the money to become due 
 thereon. See Assignment. 
 
 10. Ship upon the high seas a part of the territory of the nation to which 
 it belongs. The People t, Tyler, 0. S. viii. 408. 
 
 11. Crimes committed on. See Jurisdiction. 
 
 12. Usage to interpret written contract. Brown Y,Bi/rne, 0. S. iii. 124. 
 
 13. When not entitled to recover for delay. Harris v. Dreesman, 0. S iii. 
 127. 
 
 14. When demurrage payable. Harrison v. Spaeth, 0. S. iii. 127. 
 
 15. The doctrine of abandonment, as connected with oases of insurance, 
 has not been imported into courts of admiralty. Clarke v. The Steamer Fashion, 
 0. S. ii. 696. 
 
 16. The ports of different states are, in respect tp each other, foreign. 
 Leddo V. Hughes, 0. S. iii. 638. 
 
 17. Ship injured by stranding, underwriters liable. Corcoran v. Ourney, 
 0. S. ii. 62. 
 
 18. Duties of steamers in the navigation of the Mississippi. Shutey. Goslee, 
 0. S. iii. 465. 
 
 19. When a ship has been seized under process out of a state court, a sub- 
 sequent seizure under process out of federal court, will be subject to the first 
 seizure. Carryl v. Taylor, 0. S. iii. 394. 
 
 20. A consignee who receives goods under a bill of lading, which makes 
 them deliverable to him on his " paying for the said good's as per charter 
 party," does not become impliedly liable to pay demurrage, according to the 
 charter party, for a detention of the ship at the port of loading, which 
 occurred before the bill of lading was signed. Smith \. Sieveking, 0. S. iv. 127. 
 
 II. Rights and Liabilities of Owners of Vessem, and herein of Registry. 
 
 21. The majority in interest, or the owners of a vessel, are entitled to the 
 possession and control of her, as against the master, although the master is 
 a part owner. Child's v. Gladding, N. S. xi. 386. 
 
 22. The majority in interest may dismiss the master, though a part owner, 
 at any time they see fit. Id. 
 
 23. Mastic shipped in bulk for California, on the voyage melted, as it was 
 naturally liable to do when exposed to great heat, and occasioned serious 
 injury to other parts of the cargo. The shippers of the latter recovered 
 damages against the owners of the vessel, in actions on bills of lading signed 
 by the master, who had been' appointed by the owners of the vessel. The 
 dangerous character of mastic was not known to either party at the time of 
 its shipment, and had in fact been frequently shipped on shorter voyages 
 without injurious consequences. Held, that the owners of the vessel were 
 entitled to recover on a libel in admiralty against the charterers, the amount 
 of damages which they had been obliged to pay. Pierce v. Winsor, N. S. ii. 139. 
 
 24. Liability of shipowner for damages to cargo by shipment of dangerous 
 articles, discussed. }fote to Pierce v. Winsor, N. S. ii. 145. 
 
 25. The owner of a vessel is entitled to recover against the charterer for 
 unreasonable delay in unloading, by which such owner has been unjustly 
 deprived of the use of his vessel. Gross et al. v. Beard, N. S. ii. 548. 
 
 26. A state cannot impose a tonnage tax on vessels owned in foreign ports. 
 Peete v, Morgan, N. S. xiii. 707. 
 
 27. Where a person charters a towboat for the season, with the owners to 
 furnish the hands and pay expenses, he will not be responsible to a low for 
 damages caused by negligence of the hands, Bessel v. Torrty, N. S. xiii. 60. 
 
 28. Light-boat is a vessel within the statute. Briggs v. A Light-Boat, N. 
 S. iii. 566. 
 
 29. What control the minority of interest in a ship has in its employment. 
 Tunno v. Betsina, 0. 8. v. 406. 
 
 30. Foreign authorities on the subject collected and discussed. Id. 
 
 31. Admiralty cannot enforce a claim for money loaned on the personal 
 credit of the owner or master. Mailland-j. Brig Atlantic, 0. S. iii. 477. 
 
 32. The purchase by the government of a vessel for the revenue service 
 does not divest the same of valid liens existing at the time the title was ac- 
 quired. The government takes cum onere, and the liens may be enforced by 
 the ordinary methods. Fox v. Eev. Cutter. 0. S. viii. 459. 
 
 33. Co-owners of ships — right to lien for advances made in building. See 
 Frigoffy. Heslep, 0. S. i. 747. 
 
i8 SHIPPING. 
 
 34. The owners of a vessel may maintain a. bill in equity to recover con- 
 tribution from the owners of the cargo, if the master, in order to avoid the 
 danger of being driven, broadside on, upon a reef, sacrifices the chance of 
 saving her from this peril, and runs her over the reef and upon the beach, 
 and tlius saves a portion of the cargo, which would have been lost, if she 
 had gone to pieces upon the reef. Merithew v. Sampson, N. S. i. 764. 
 
 35. Owners liable for injuries to other vessels, notwithstanding pilot on 
 board. Bodrigues v. Melhuisk, 0. S. iii. 128. 
 
 36. In an action for supplies furnished to a vessel, some proof being given 
 by the defendants, that they had ceased to be owners before the time of fur- 
 nishing the supplies, evidence of a subsequent declaration under oath by one 
 defendant for the purpose of registering the vessel, that he and the other 
 defendant were then owners, and of similar declaration in another suit, are 
 admissible on the part of the plaintiif; so of admissions to other creditors 
 in a similar position that their claims were correct. Lincoln v. Wright, 0. S. 
 ii. 572. 
 
 37. The registry of a vessel is in general no evidence of ownership ; but 
 the declaration, under oath, for that purpose, is admissible evidence against 
 the party making it, in a question of liability for supplies. Id. 
 
 88. The second sect, of the Act of Congress of March 3, 1851, "to limit 
 the liability of ship-owners," &c., does not make the absence of the "note in 
 writing," required by the statute, a discharge of the ship-owner's liability 
 on a, contract of affreightment, where the true character and value of the 
 enumerated articles have been fairly and clearly set down in the bill of lading, 
 whether before or after the actual shipment; nor, it seems, where such char- 
 acter and value were in fact unknown to the parties. Watson v. Marks, 0. S. 
 ii. 157. 
 
 39. Under the section of this act, the personal liability of the ship-owners 
 on a contract of affreightment, ceases upon a total destruction of the vessel 
 and loss of freight, before the completion of her voyage, though the actual 
 damage to, or loss of the goods to.be carried, as in the case of theft, has 
 taken place prior to the time of the destruction of the vessel. Id. 
 
 40. The limitation of liability of the ship-owner, by this section, is not 
 affected by the fact that the vessel has been insured, and the insurance has 
 been paid, or become payable. Id. 
 
 III. Of Charteb Parties ; and Mortgages op a Vessel ; Bottomry Bond. 
 
 41. A mortgage of a vessel, before it is registered or enrolled, is valid, if 
 recorded according to the state laws. Perkins v. Emerson, N. S. xi. 464. 
 
 42. If registered, it will only be Valid as to the mortgagor, unless recorded 
 agreeably to the United States laws'. Id. 
 
 48. If charter-party made in Scotland, the right to recover would depend 
 on Scotch law, which, on a questioi of commercial law, will be presumed to 
 be like our own. Chase v. Ins. Co., N. S. iv. 446. 
 
 44. The assignee of a mortgage of a vessel takes it with all the powers and 
 rights possessed by the mortgagee. Dalrymple v. Sheehan, N. S. ix. 478. 
 
 45. The record of a mortgage or conveyance of a vessel must be made in 
 the district of the last registry and enrolment, though not the home port of 
 the vessel. Fotter v. Msh, N. S. iii. 187. 
 
 46. A. held a mortgage on one-half of a vessel, and B. a subsequent mort- 
 gage on three-fourths. The owner becoming bankrupt,*the. vessel was sold 
 by proceedings in admiralty, and the fund produced was insufficient to pay 
 both mortgages. Held, that A.'s mortgage was to be treated as the first lien 
 on one-half of the fund, and that such half must be regarded as composed 
 of two separate funds or quarters, one subject to A.'s mortgage alone, and 
 one subject, first, to A.'s, and, secondly, to B.'s mortgage, and, as to the other 
 half, B.'s mortgage was the first hen. One-quarter being more than sufficient 
 to pay A.'s mortgage, payment was first made of that, and then the surplus 
 passed to the assignee in bankruptcy, and the remaining three-quarters of 
 the fund went to the payment of B.'s mortgage. Tlie Edith, N. S. xi. 214. 
 
 47. It is usual in charter-parties to insert an agreement for a specified time 
 for loading and unloading. And where the contract is precise, the shipper 
 of the freight is held strictly to its terms. Gross el al. v. Beard, N. S. ii. 648. 
 
 48. But where no period of delay is fixed by the contract, the rule is dif- 
 ferent. There a reasonable time is implied, which is a question for a jury. Id. 
 
 49. Charter-party — deviation from voyage. Baker v. Pratt, N. S. ii. 63. 
 
SHIPPING. 849 
 
 50. The statute of the U. S. requiring conveyances and mortgages of ves- 
 sels to be recorded applies only to such as have been enrolled, registered, or 
 licensed under the laws thereof. Veazie v. Somerby, N. S. iii. B4. 
 
 51. J. C. owned the brig M., and sold to T., who secured the purchase- 
 money by a mortgage duly executed and recorded. Subsequently to the Side 
 and execution of the mortgage, J. M. & Son repaired tlie brig, and kept her 
 in their custody until the marshal attached her; B. and T. furnished ship 
 chandlery, but were at no time in possession. H. S. did the joiner work, but 
 was at no time in possession. Held, that these liens must be marshalled, as 
 follows: First, J. M. & Son, the shipwrights, must be paid, because they had 
 a strict maritime lien, and had possession, and no act of the owner cau de- 
 feat a lien which the law^ creates ; second, the mortgages, and, third, the bal- 
 ance ratably to the other libellants. Marsh & Son v. The Brig Minnie, 0. S. 
 vi. 328. 
 
 52. A recorded mortgage of a vessel does not take priority over a subse- 
 quent lien, obtained by a material-man for necessary supplies or repairs. 
 Reeder v. Steamship George's Greek, 0. S. iii. 232. 
 
 53. Where a vessel is sold on a bottomry bond the fund in court is not sub- 
 ject to any claim for a general average loss subsequent to date of bond. Oolo- 
 gaardt v. Brig Anna, N. S. ix. 475. 
 
 5-t. Act of Congress as to recording mortgage of a vessel does not super- 
 sede state laws for same purpose, ^^tna Ins. Co. v. Aldrich, N. S. iii. 570. 
 
 55. The registration of ship conclusive in a court of chancery. Combs v. 
 Mansfield, 0. S. iii. 511. 
 
 56. Effect of registration acts in England. Id. 
 
 57. By a charter-party the master of a vessel, engaged to proceed with his 
 vessel to a particular colliery, and there take on board for the freighters a 
 cargo of coal. Before the charter-party was signed, both parties knew that 
 the colliery was not at work, an accident having happened to the steam-engine 
 and both were told that it would be repaired in a short time, and that the 
 vessel would be loaded in her turn in a few days, after the colliery got to 
 work again, according to the practice of the port, whicli was, that ships 
 were loaded in- their regular turns, as they were entered on the colliery 
 books. The freighter had no control over the colliery. The ship was loaded 
 in her turn, but not until several days later than the colliery agent had led 
 the parties to expect. Held, that if the steam-engine was repaired and the 
 colliery got to work in a reasonable time after the execution of the charter- 
 party, and if the vessel was loaded within a reasonable time after the colliery 
 got to work, the freighters were not liable to compensate the master of the 
 vessel for the delay in the loading. Harris T. Dreesman, 0. S. iii. 127. 
 
 IV. Of Freight. 
 
 58. The explosion of a boiler on a steam vessel is not a "peril of naviga- 
 tion " within the term as used in the exception in bills of lading. Propeller 
 Mohawk, N. S. ix. 123. 
 
 59. Goods laden on deck and jettisoned do not make a case for general 
 average. Ray v. Schooner Belle, N. S. ix. 811. 
 
 60. Forty tons of pig lead were shipped on the deck of a schooner with 
 * consent of the shipper, who took a bill of lading with "dangers of naviga- 
 tion excepted." Part of the lead was properly thrown overboard for relief 
 of the vessel in a storm. Held, the vessel is not liable to contribute for the 
 loss. Id. 
 
 61. The fact that the shipment of the lead on deck was sought by the 
 master for the purpose of trimming his vessel, held not to be material. Id. 
 
 62. Under the Act of Congress of February, 1845, liens created by state 
 laws on vessels navigating the western lakes and rivers, were treated as quasi 
 maritime liens; but since the decision of the Supreme Court of the United 
 States in The Eagle, 8 Wall. 15, they can no longer be regarded as of that 
 character. Matter of Dwight Scott, N. S. ix. 349. 
 
 63. Mortgages of vessels, duly recorded as required by the Act of 1850, 
 are entitled to preference over liens under the water-craft laws of Ohio, for 
 supplies, &c., furnished subsequently to the recording of the mortgage. Id. 
 
 64. The master of a vessel is bound to carry the goods shipped on her to 
 their place of destination in his own ship, unless he is prevented from so 
 doing by the act of God, the public enemy, the act of the shipper, or by 
 
 54 
 
850 SHIPPING. 
 
 some one of the perils excepted in the contract of shipment. The Maggie 
 Hammond, N. S. ix. 440. 
 
 65. A captain entering a port at night and in a fog, enters at his own peril, 
 unless there is some necessity for it. The Fortsmouth, N. S. ix. 441. 
 
 66. Jettison resorted to in consequence of want of prudence, is not a loss 
 by dangers of navigation. Id. 
 
 67. The stranding of a vessel is voluntary, and as such the subject of gen- 
 eral average, whenever the will of man contributed thereto. Star of Hope, 
 N. S. ix. 455. 
 
 68. As a general rule, the contributory value of a ship is her value at the 
 time of her arrival at the termination of the voyage. Id. 
 
 69. The master may sell a portion of the cargo to make repairs. Id. 
 
 70. The law creates no maritime lien on a vessel as security for the per- 
 formance of a contract to transport a cargo, unless some contract of afTreight- 
 ment has been made. The Keokuk, N. S. ix. 574. 
 
 71. When bill of lading not conclusive evidence of the course of proposed 
 voyage. Cobb v. Blanchard, N. S. vi. 126. 
 
 72. Bill of lading can be transferred by delivery merely, without indorse- 
 ment. Bank v. Wright, N. S. vi. 126. 
 
 73. Rights of the bon& fide transferee of bill of lading. Id, 
 
 74. A bill of lading, so far as It is a receipt, is open to explanation, and 
 the carrier may show that the amount which actually came into his hands is 
 different from that stated in the bill. Strong v. Railway Co., N. S. vi. 680. 
 
 75. This rule is subject to qualification where third persons have acquired 
 rights by purchase, or advance of money based upon statements contained in 
 the bill. Id. 
 
 76. An intermediate consignee, by whom property is received subject to 
 back charges, is liable to an action therefor in" case of neglect or refusal to 
 make payment. Id. 
 
 77. Neither the intermediate, nor the final consignee can deduct from the 
 freight earned by the prior carrier the value of any difference between the 
 amount delivered to him and that receipted for in the bill of lading, where 
 the carrier can show an error in the bill, and that he actually delivered all 
 that he received, Id. 
 
 78. A custom for intermediate consignees to make such deductions is un- 
 certain, unreasonable, and void. Id. 
 
 79. Even if such custom was valid, an action would lie against the inter- 
 mediate consignee to recover the amount of such deduction, unless he had 
 paid over the money, or in some manner changed his legal position relative 
 to the owner with respect to the money after making the deduction. Id. 
 
 ' 80. Liability of consignee for demurrage. Gage v. Morse, N. S. vi. 574. 
 
 81. Consignee not liable for demurrage, if bill of lading contain no provi- 
 sion for its payment. Gage v. Morse, N. S. vi. 719, 574. 
 
 82. In action against owners for supplies on captain's order, plaintiff must 
 show that they were necessary. Fordy. Crocker, N. S. vi. 719. 
 
 83. Captain is to decide as to what is necessary. Id. 
 
 84. Vendors may rely upon his decision. His order for the goods is suffi- 
 scient. Id. • 
 
 85. Amount for which carrier is liable for loss to cargo, happening before 
 and after commencement of the voyage. Krohn v. Oecha, N. S. vi. 714. 
 
 86. Where ship, freight, and cargo are pledged by a master for repairs, 
 and the proceeds of the ship and freight are insufiicient to pay them, it is 
 fair to presume that the master acted in behalf of the owner of the cargo. 
 Stirling v, Nevassa Phosphate Co., N. S. xi. 598. . 
 
 87. The master may sometimes act as the agent of the owner of the cargo. 
 Id. 
 
 88. Wher« he acts for all parties, the loss falls on the owners of the ship 
 and cargo in proportion to their interests. Id. 
 
 89. The owner of the cargo, where the expenses have been thrown on it, 
 has a right to call on the owner of the ship for contribution, to the extent 
 of the ship and freight. Id. 
 
 90. Freight paid and not earned may be recovered back. Chase v. Ins. Co., 
 ^. S. iv. 446. 
 
 91. Place where services are in fact rendered is place where debt is con- 
 
SHIPPING. 851 
 
 traoted within the N. Yi statute for collecting debts against vessels. MuUin 
 V. Hicks, N. S. vii. 511. 
 
 92. A bill of lading silent as to the place of stowage, imports that it is to 
 be under deck. T/ie Delaware, N. S. xii. 126. 
 
 93. Parol evidence that it was to be on deck is inadmissible. Id. 
 
 94. The contract between the ship and the shipper is that which is con- 
 tained in the bill of lading delivered to the shipper. T/ie Thames, N. S xii. 
 197. 
 
 95. By issuing a bill stipulating for a delivery of the goods to order, the 
 ship is bound to deliver to no one who has not the order of the shipper. Id. 
 
 96. Even if the consignee or endorsee cannot be found the carrier has no 
 right to deliver to a stranger. Id. 
 
 97. The endorsee may libel a vessel for failure to deliver the goods though 
 he is but an agent or trustee of the goods. Id. 
 
 98. A bill of lading given by a steamer navigating the Western rivers, 
 which contains the "privileges of lighting and reshipping," will be con- 
 strued as granting to the vessel the privilege of reshipping during the voy- 
 age, according as its interest or convenience may advise, and as at the same 
 time imposing upon it the duty to do so when practicable and necessary. 
 Dorris T. Copelin, N. S. v. 492. 
 
 99. The privilege cannot be exercised before the voyage has been under- 
 taken or commenced by the original vessel. It would not justify the steamer, 
 which gives such a bill of lading, in shipping and transporting the cargo by 
 another vessel. In this there would be such a departure from the contract 
 as would render the original vessel liable as insurer. Id. 
 
 100. Lighterage does not apply to overloading at the commencement of a 
 voyage. Id. 
 
 101. When shipper of cargo for part of a longer transit, bound by course 
 of trade connected with forwarding it. The Convoy's Wheat, N. S. v. 509. 
 
 102. His power in such case and duty to telegraph. Id. 
 
 103. Liability of owners, where bills of lading vary from contract of af- 
 freightment. Gage v. TirreU, N. S. v. 191. 
 
 104. A carrier by water carries from^ port to port, or from wharf to wharf, 
 and is not bound to deliver at the warehouse of the consignee. Richardson, 
 Claimant of the Barque Tangier v. Goddard, 0. S. viii. 278. 
 
 105. In special case carrier may deny title in his bailor or shipper. Van 
 Winkle V. U. S. M. S. Ship Co., N. S. ii. 124. 
 
 106. The measure of damages for a cargo shipped from a port is the value 
 of cargo in gold the day of shipment. The Vaughan and Telegraph, N. S. xii. 
 124. 
 
 107. Where a charterer agreed to load a vessel, when it arrived at a cer- 
 tain port, with a cargo of coals in the customary manner, and the question 
 at the trial was whether he had so loaded the vessel within a, reasonable 
 time, it was held that the jury were rightly directed not to take into consid- 
 eration a delay occasioned by a strike among the colliers and a dispute with 
 a railway company, along whose line the coal had to be brought to the port 
 for shipment, these not being matters contemplated by either party when the 
 charter party was made. Adams v. The Royal Mail Steam-Packet Co., 0. S. 
 vii. 508. 
 
 108. Freight on wheat shipped in bulk payable according to its bulk when 
 loading, and not according to its bulk at the time of delivery. Gibson v. 
 Sturge, 0. S. iii. 511. 
 
 V. Op Saivagb. 
 
 109. The rule of maritime law, that a passenger who has no opportunity 
 to leave a vessel in distress, cannot render a salvage service. The Pennsyl- 
 vania, N. S. xiii. 561. 
 
 110. The presumption is that advances made to a captain in a foreign port 
 to pay for necessary repairs or supplies were made upon the credit of the 
 vessel. The Emily Souder, N. S. xiii. 335. 
 
 111. Liens for such advances have priority of existing mortgages. Id. 
 
 112. General average extends to the loss of the ship when the cargo is 
 saved, and the loss of the cargo when the ship is saved. McLoon's Adminis- 
 trator V. Oummings, N. S. xiii. 398. 
 
 113. When the cargo is sent to the port of destination the parties are 
 bound by an adjustment made there. Id. 
 
852 SHIPPING. 
 
 114. This rule does not obtain in case of fraud or mistake, or when the 
 voyage is broken up and ended. McLoon'a Administrator v. Cumminffs, N. S. 
 xiii. 398. 
 
 11.5. Where a deviation is justified in case of disaster by a peril of the sea, 
 disabling the vessel from proceeding, the master becomes the agent of all tho 
 parties in interest. Id. 
 
 116. If the vessel cannot proceed. It is the duty of master to reship the 
 cargo to port of destination. Id. 
 
 117. If master can save part of the freight he will be considered the 
 owner's as well as the shipper's agent; if he cannot, he will be shipper's 
 agent alone. Id. 
 
 118. If the master pays a premium for gold drafts to pay the expenses, in 
 a suit to recover the shipper's share, the verdict must be tor amount in gold, 
 and not for the premium paid. Id. 
 
 119. If freight and charges at port of destination consume the value of the 
 cargo, there is nothing upon which to charge the general average. Id. 
 
 120. The existence or non-existence of a maritime lien for repairs is wholly 
 independent of the poi't in which the repairs arc made. Taylor v. Steamboat 
 Commonwealth, N. S. xiii. 502. 
 
 121. In a foreign port, a party making repairs or furnishing supplies to a 
 vessel is presumed to rely upon the credit of the vessel itself; but at the 
 home port such a presumption does not exist, and it must appear affirma- 
 tively that the repairs were made or the supplies furnished on the credit of 
 the vessel, and not on the credit of the owners. Id. 
 
 122. If the owners at the home-port are in good credit, no maritime lien ia 
 created. Id. 
 
 123. At a foreign port the master is only authorized to have such repairs 
 made as will enable the vessel to pursue her voyage. At the home-port the 
 owners are not thus restricted. Id. 
 
 124-. Liability of shippers of goods of a dangerous character. Brass v. 
 Maitland, 0. S. v. 565. 
 
 125. Where a libel was filed in rem. and in personam for damages sustained 
 by a consignee in consequence of the schooner's springing aleak by reason 
 of her unseaworthiness, it was held that the owner could not protect himself 
 against the in personam proceeding by surrendering his interest in the 
 schooner, and claiming exemption under the Act of Congress of March 3, 
 1851, ch. 43, 9 Stat, at Large, p. 635. Matter of the Schooner Ella, 0. S. viii. 
 20B. 
 
 126. This act is not to be confined to torts alone ; but there being a repre- 
 sentation of seaworthiness proceeding from the owner or his agent, there 
 may ~be a breach of the contract arising from such representation, for which 
 the owner will be liable inpersonam under the true construction of the Act of 
 1851. Id. 
 
 127. A ship abandoned at sea was t.aken possession of by a small schooner, 
 and after being towed some time by the schooner, was boarded by several 
 men from the President steamer, who look possession of her, and towed her 
 into Liverpool. Held, that the schooner was entitled to salvage as first 
 salvor. The Pickwick, 0. S. i. 52. 
 
 128. The true rule with regard to the right to contribution in the maritime 
 law is the achievement of the object designed, ejen for a short period of time, 
 by the sacrifice of the property; and this will be sufficient to give rise to and 
 justify contribution, notwithstanding there may be a subsequent loss, pro- 
 vided the latter results from a new peril. In the Matter of the Cargo of the 
 Great Republic, 0. S. vii. 271. 
 
 129. In ii case where the following facts appeared that the original or 
 primary cause of the loss was an accident, not the subject of general average; 
 that the proximate cause of the preservation of all that was saved was the 
 scuttling of the ship ; that the immediate cause of the scuttling was a fire be- 
 tween the lower decks of the vessel; that such fire was brought there by a 
 burning spar, which had been out away by the voluntary act of the crew ; 
 that such act, instead of averting the peril it was designed to prevent, was 
 the real and efficient loss that followed. Held, first that the direct damage 
 to the cargo in the lower hold, as well as that to the ship's knees and tim- 
 bers by the scuttling, is a proper subject for contribution. Second, no dam- 
 
SHIPPING. 853 
 
 age to the cargo between decks and on fire, arising from the water thrown 
 in, is a proper subject for contribution. In the Matter of the Cargo of the Great 
 Republic. 0. S. vii. 271. 
 
 130. Metliods of computing, and rules for contribution suggested. Id. 
 VI. Of the Master op a Vessel and of the Pilot. 
 
 131. Agreement between owner and master to sail on "shares" does not 
 release vessel from ordinary liability for supplies. Vose v. Cockroft, N. S. v. 570. 
 
 132. Authority of master to contract for ligliting channel. Stronff v. Saun- 
 ders. N. S. vi. 639. 
 
 133. The owners of a ship are responsible for supplies furnished on the 
 "captain's order, though in a home port. Winsor v. Maddock, N. S. a. 413. 
 
 134. The power of a master to bind the owners for repairs only extends to 
 the value of the ship and freight. Stirling v. A'evassa I'hosphate Co., N. S. xi. 
 598. 
 
 135. The master of a vessel is responsible for the necessary supplies, and 
 the interest of the owners in the freight is superior to the master's or his 
 creditors', and therefore is not subject to attachment for supplies. Stirling 
 v. Loud, N. S. X. 542. 
 
 136. Master running vessel on shares is not owner nor charterer, but has 
 the ordinary powers of a master. McCready v. Thome, N. S. vii. 570. 
 
 137. Sale of vessel by master in a distant port — requisites to validity, and 
 effect of. The Amelie, N. S. vii. 317. 
 
 138. Vessel cannot have permanent and temporary registry at same time. 
 Chadwick f. Baker, N. S. vii. 192. 
 
 139. Under Act of July 29, 1850, bill of sale must be recorded in office 
 from which the last register issued. Id. 
 
 140. Master is bound to deliver the kind of goods and the quantity speci- 
 fied in the bill, and acceptance by consignee of goods of the kind, but less in 
 quantity, does not change the master's obligation. Byrne y.Weelcs, N. S. ii. 
 568. 
 
 141. The master cannot do what a prudent owner, if present, would not 
 do, and the law presumes an owner would not repair beyond the value of the 
 ship and freight. Stirling v. Nevassa Phosphate Co., N. S. xi. 598. 
 
 142. The lender of money to a master of a vessel to aid in making repairs, 
 &c.. must see that the amount advanced is reasonable and necessary. Leddo 
 V. Hughes, 0. S. iii. 637. 
 
 143. The adoption of a law of a foreign country, as in a case of a law 
 giving the master a lien for his wages, is discretionary with a Court of Ad- 
 miralty, and not to be resorted to where it would operate with injustice. 
 The Johannes Christoph, 0. S. iii. 508. 
 
 144. The Pennsylvania Pilot Act of March, 1803, which " obliges " ves.=el3 
 going out or coming into the port of Philadelphia to receive a pilot, under 
 a "penalty" and "forfeiture" of half-pilotage, whicli the act makes a lien 
 upon the ship, and recoverable in the Admiralty, not being, as it decided, com. 
 pulsory, but optional, the ship need not take a pilot if it prefers to pay the 
 penalty or forfeiture. Hence there being a direct privity between the pilot 
 and the ship, the latter is liable in Admiralty for damage caused by his acts. 
 Smith V. The Creole and The Sampson, 0. S. ii. 697. 
 
 145. Fraudulent collusion. A claim for advances made to the master of a 
 foreign ship, under the stat. Sand 4, Viet. o. 65, pronounced against with costs, 
 upon the ground of fraudulent collusion between the mastermind the party 
 making the pretended advances. The Helena Sophia, 0. S. i. 47. 
 
 146. A bill of lading is conclusive evidence against the master of a vessel 
 in favor of a consignee, not a party to the contract, who has advanced money 
 upon the faith of its statements, as to the amount and condition of the prop- 
 erty of which it acknowledges the receipt, as far as from the whole instru- 
 ment and usage of trade, the facts may be regarded as absolute statements, 
 from the master's own knowledge ; but it is not conclusive against the 
 owners, as to property not actually shipped, because it is not within the 
 scope of the master's authority from the owners to sign bills of lading for 
 any property but such as is put on board. Sears v. Wingate, N. S. i. 501. 
 
 147. In case of sale by master from necessity, the salvage belongs to in- 
 surers. Stephenson v. Ins. Co., N. S. vii. 444. 
 
 148. Alleged copy of survey not made by order of a Court of Admiralty or 
 
854 SHIPPING. 
 
 under oath not evidence, though certified by American consul. Siephenion\. 
 Ins. Co., N. S. vii. 444. 
 
 149. Vessels carrying goods are carriers in such sense that the owners 
 may maintain action for cargo lost by collision. The Commander-in- Chief, N. 
 S. iii. 693. 
 
 150. An act of assembly provides that licensed vessels failing to take a 
 ' pilot shall pay half pilotage. Collins v. Soc.for Relief of Pilots, N. S. xiii. 4(i2. 
 
 151. Master not liable for the negligence of a stevedore. BlaJcie v. Stem- 
 bridge, 0. S. viii. 182. 
 
 152. Where the conduct of a pilot is free from fraud, negligence, or viola- 
 tion of law, he is not guilty of barratry, though the owner of the vessel has 
 been Injured. Germania Ins. Co. v. Sherlock, N. S. xiv. 584. 
 
 VII. Op the Seamen. 
 
 153. When the crew is put on short allowance without necessity, a case 
 not within the act of Congress, there is a wrong in breach of contract, and 
 a remedy will be given by a Court of Admiralty, in the form of additional 
 wages. The John L. Dimmick, 0. S. ix. 224. 
 
 154. The vessel lien law of New Jersey applies as well to foreign as to 
 domestic vessels. Randall v. Roche, N. S. ii. 553. 
 
 155. A vessel may be libelled and sold in a Court of Admiralty, under a 
 paramount lien, such as for seamen's wages, notwithstanding that she has 
 been previously seized by process of foreign attachment issuing out of a 
 State Court, and still remains in the custody of the sheriif ; and a perfect 
 title will pass to the marshal's vendee. Wall v. The Royal Saxon, 0. S. ii. S24. 
 
 156. Assignee of vessel as collateral security not liable for supplies — proof 
 of nature of the assignment. Blanchard v. Fearing, N. S. ii. 63. 
 
 157. A vessel employed on the lakes, between a port of the United States 
 and u, foreign port, having shipped a seaman on verbal promise of certain 
 wages, and no shipping articles having been signed, the seaman may leave 
 the vessel at any tinie. If the seaman has drawn the full wages promised, 
 and does not demand more before leaving, he cannot recover a larger amount. 
 The Propeller Fremont, N. S. x. 340. 
 
 158. Seaman under void articles may leave vessel and recover wages to 
 the time. Roberts r. Knights, N. S. iii. 697. 
 
 159. Articles held to be void. Id. 
 
 160. Beimbursemcut of advance where the ship is lost. Benner v. Ins. Co., 
 N. S. iii. 316. 
 
 161. By the maritime law, seamen must be cured of diseases incurred 
 during their employment, when not produced by their own fault, at the ex- 
 pense of the ship. Moseley v. Scott, N. S. v. 599. 
 
 162. The statutes of the United States do not change the rule thus exist- 
 ing, except in the requirement of a medicine-chest on board the vessel, and 
 then there must be proper directions for the administration of the remedies, 
 or a suitable person to prescribe them. The expense of food and nursing 
 are still to be borne by the vessel. Id. 
 
 163. The sailor engaged on board a steamboat on the Western rivers is 
 entitled to the same privileges as merchant seamen on foreign voyages. Id. 
 
 164. The remedy in every proper case is not coniiued to the admiralty, 
 but may be pursued in the state courts. Id. 
 
 165. Sailors on the lakes are merchant seamen, and are entitled in a 
 proper case to be cured at the expense of the vessel, if taken sick or hurt 
 without their fault, while in the service of the vessel. Morgan y.. Schooner, 
 N. S. vi. 707. 
 
 166. When a sailor takes advantage of the rate of wages before shipping 
 on a short voyage on the lakes, and receives a hurt on entering Ihe port of 
 discharge, without any fault or neglect of the oiEcers, and he takes his dis- 
 charge and his full pay, and afterwards contracts a debt for medicine, &c., 
 the vessel is not liable. Id. 
 
 167. The lien for wages of a seaman who is himself a part owner of the 
 vessel on which he serves, is discharged by ai sheriff's sale of her, on execu- 
 tion against her owners. And this, although as a general principle a 
 sheriff's sale of a vessel does not discharge the sailor's lien upon her Gal- 
 latin S; Wood v. The Pilot, 0. S. ii. 697. 
 
 168. As to warranty of sea-worthiness to seamen, see Wakkantt. 
 
sHippma. . 855 
 
 169. By the terms of the treaty between the United States and the Hanse- 
 atio Towns, a Court of Admiralty here has no jurisdiction of a libel for 
 wages by a Bremen sailor against a Bremen vessel, though he had shipped 
 in the United States. Kendept v. The Barque Korner, 0. S. iii. 47. 
 
 170. Construction of the Act of 29th July, 1850, relating to couveyanoe of 
 vessels. Seeder v. Steamship George's Creek, 0. S. iii. 232. 
 
 VIII. Maritime Liens. 
 
 171. Where materials are furnished or repairs made to a vessel in her 
 home port, no maritime lien arises therefor, although the vessel is engaged 
 in foreign trade. The Edith, N. S. xi. 214. 
 
 172. There being no maritime lien, neither the shipwright nor material- 
 man is entitled to share in the proceeds arising from the sale of the vessel 
 under admiralty process, as against a mortgagee or assignee in bankruptcy. 
 Id. 
 
 173. The Act of April 24th, 1862, of New York [Sess. Laws of 1862, ch. 
 482], so far as it provides for enforcing a maritime contract by proceedings 
 in rem. against a vessel, is unconstitutional and void. Id. 
 
 174. The writ for enforcing a laborer's lien on a vessel, under the laws of 
 Maine of 1858, ch. 15, need not allege whether the labor was donS before or 
 after she was launched. McOabe v.McRae, N. S. x. 671. 
 
 175. The lien attaches, notwithstanding the labor was performed for one 
 who contracted with the owner. Id. 
 
 176. If the claimant would avoid the lien, he must show that the laborer 
 has knowingly surrendered or waived it. Id. 
 
 177. A person claiming a lien, for labor on a vessel, is required to state iu 
 his specification the name of the owner only when he knows it. Id. 
 
 178. It is no defence, to an action for enforcing a lien on a vessel after she 
 is launched, that the officer making the attachment took a receiptor. Id. 
 
 179. Where, in an action to enforce a lieu upon a vessel, brought by a 
 laborer against one who contracted with the owner, the defendant is de- 
 faulted, such default is not evidence against the claimant as to the amount 
 of the lien on the vessel. Id. 
 
 180. It seems that maritime liens, such as for seaman's wages, are dis- 
 charged by a sale on an execution in Pennsylvania, and that the claimants 
 are turned over to the fund in the hands of the sheriff. Carryl v. Taylor, 0. 
 S. ii. 333. 
 
 181. Statutory liens on steamboats and other vessels. Legislative compe- 
 tency to make such lien superior to the title of purchasers without notice 
 out of the state. Wightman v. The Geo. Albree, 0. S. iv. 119. 
 
 182. A lien for supplies furnished to a foreign vessel, on the credit of the 
 owner or the master, does not create », maritime lien on the vessel, within 
 the jurisdiction of the United States Courts of Admiralty, and may be 
 enforced in the courts of this state. Randall v. Roche, N. S. ii. 553. 
 
 183. A vessel seized, under process of foreign attachment in a State Court, 
 was subsequently libelled in admiralty for seamen's wages, and attached by 
 the marshal, while still in the custody of the sheriff. The vessel was sold as 
 perishable in both proceedings. Ruled, that as the common law jurisdiction 
 had first attached, the title of the sheriff's vendee was superior to that of 
 the vendee of the marshal. Carryl v. Taylor, 0. S. ii. 333. 
 
 IX. Whaefage and Eight to Wharves. 
 
 184. Consignees must provide such reasonable dock-room as their business 
 ordinarily requires, and for failure to do so they are liable to damages in the 
 nature of demurrage, whether so contracted in the bill of lading or not. 
 Fulton V. Blake, N. S. xii. 779. 
 
 185. A consignee who has provided sufficient doek-rotim for vessels con- 
 signed to him as they usually arrive, is not at fault when from causes over 
 which he has no control they all arrive together. He is not obliged to pro- 
 cure other docks; his vessels arriving out of the time when they ought 
 reasonably to have been expected must await their turn at his docks. Id. 
 
 186. By the eustom of the port of Chicago one day is allowed the consignee 
 to provide a dock, and this custom, unless rendered unreasonable by con- 
 trolling circumstances, should be considered a part of the contract. Id. 
 
 187. The Chicago fire was such an intervention of unforeseen oiroum- 
 
856 • SHIPPING. 
 
 stances as excused delay in persona whose business facilities were disar- 
 ranged. Fulton V. Blake, N. S. xii. 779. 
 
 X. Collision. 
 
 188. The rule that "if two ships, one of which is a sailing ship and the 
 other a steamship, are proceeding in such direction as to involve risk of col- 
 lision, the steamship shall keep out of the way of the sailing ship," applies, 
 to the case of a tug with her tow lashed alongside; the tug and her tow are 
 considered as one vessel, and that a steam vessel. Railroad Co. y. Schooner 
 Manlon, N. S. xi. 769. 
 
 189. A steamship navigating a channel which is not the ordinary one for 
 vessels of her size, is bound to exercise more than usual caution. TJie Java, 
 N. S. xii. 118. 
 
 190. Where every precaution has been exercised she will not be responsi- 
 ble for a collision. Id. 
 
 191. Whenever there is a risk of collision it is the duty of a steamer to 
 keep out of the way of a sailing vessel, -f. W. ^ H. Railroad v. Kerr, N. S. X. 
 S43. 
 
 192. There may be dangers and difficulties which will excuse a violation' 
 of tHfe rule, but a jury must then determine. Id. 
 
 193. A steamer is responsible for a collision which a better lookout than 
 she had might have prevented. Shute v. Goalee, 0. S. iii. 465. 
 
 194. When fault may be attributed to two vessels, the damages are divided, 
 and not apportioned according to the degree of fault. Eben B. Ward v. Philo 
 Chamberlain, 0. S. v. 330. 
 
 195. The fact that one vessel does carry a prohibited light does not ab- 
 solve another from using care and nautical skill required by the exigencies 
 of the case. Greening v. Schooner Gray Eagle, N. S. vii. 226. 
 
 196. Collision of steamers on the Mississippi — boat in fault, &c. Shute v. 
 Goslee, 0. S. iii. 465. 
 
 197. As to duties of, in passing each other, one under steam the other 
 under sail. See Baney v. Steamboat, 0. S. vi. 422. 
 
 198. Where a larger vessel, a ship, is in tow of a small one, a steam-tug, 
 the latter is, in law, regarded as the servant of the former, and being thus its 
 agent, and so bound to obey its orders, is not responsible for damage in the 
 proper course of the employment. Smith v. The Creole and The Sampson, 0. S. 
 ii. 697. 
 
 199. It is an established rule of navigation, that steam vessels meeting with 
 each in a clear river, or on the open sea, shall each pass to the right, in case 
 of danger of collision. Lockwood v. Lashell, 0. S. i. 125. 
 
 200. Where a vessel is injured and sunk by collision in such a place or 
 under such circumstances, that for a small sum of money in comparison with 
 the value of the vessel and cargo, she can be raised and repaired, and the 
 cargo recovered with slight damage, her owners have no right to abandon 
 her and claim for a total loss. Clarke v. The Steamer Fashion, 0. S. ii. 696. 
 
 201. Ship meeting ship — duty of each. Potter v. Pettis, 0. S. ii. 678. 
 
 202. Ship may use a warp in getting in and going out of harbor, &o. Id. 
 
 203. The court confirming its decision in the case of Smith v. The Creole and 
 Sampson (2 Wallace, Jr., 485), applies more strongly the doctrines of that 
 case, and holds that when even small vessels, as coal heavers, are in tow, the 
 towing boat is the servant of the vessel towed, and that the tug being thus 
 bound to obey the orders of the other vessel, is not responsible, though in 
 point of fact giving orders to her, for damages in the proper course of its 
 employment. The Sleam-Tug Sampson, 0. S. iii. 337. 
 
 204. Though the rule of porting the helm is obligatory when in ordinary 
 cases vessels meet in the same line, it is not one always to be observed when 
 they are in parallel lines. Circumstances control the rule, and when a boat 
 is moving against the tide slowly, and with difficulty (as when tugging a 
 heavy vessel), and is out of the centre of the channel, which is left free to 
 the other, the rule can have no application. Id. 
 
 205. Steamers, especially large steamers, are held to the strictest care 
 possible when in ports, or in the neighborhood of sailing and smaller vessels, 
 and must move slowly and with extreme circumspection. And if from viola- 
 tion of this duty, small or sailing vessels are put suddenly into confusion 
 or jeopardy, the court will not inquire whether the rules applicable to ordi- ' 
 
SHIPPING— SLANDEE. 857 
 
 nary oases of meeting have been strictly observed by the wealcer vessel or 
 not, but will hold the steamer responsible as reckless, for all injury happen- 
 ing to or committed through the act of the weaker vessel, from mistake 
 caused by the embarrassment natural to the condition into which tho steamer 
 had put the weaker vessel. The Steam-Tug Sampson, 0. S. iii. 337. 
 
 SIDEWALK. 
 
 1. The mere slippery condition of a sidewalk arising from the ordinary 
 action of the elements (as snow and ice) is not a defect which renders a town 
 liable under the statutes of Wisconsin. Perkins v. City of Fond du Lac, N. S. 
 xiii. 715. 
 
 2. The liability of a city for injuries resulting from a defective sidewalk is 
 no longer open for discussion. Colby et ux. v. Oily of Beaver Dam, N. S. xiii. 778. 
 
 3. City is bound to repair any defect which endangers the safety of travel- 
 lers. Id. 
 
 4. Where defect has existed for any length of time ths city is presumed to 
 have had knowledge of it. Id. 
 
 5. The statute does not apply to improvements of the sidewalk which is to 
 be subservient to the premises to which it is attached. Mayor of Newark v. 
 State, N. S. xiii. 441. 
 
 6. A projection over u sidewalk in a city which is dangerous to persons 
 using the sidewalk is a nuisance. Grove v. City of Fort Wayne, N. S. xiv. 
 69. 
 
 7. The cost of flagging a sidewalk may be made against the whole frontage, 
 if no grading of the street is included. Van Tassel v. Mayor and Alderman of 
 Jersey City, N. S. xiv. 258. 
 
 8. A city is liable for injuries resulting from snow and ice allowed to ac- 
 cumulate on its sidewalks. McLaughlin v. City of Carry, N. S. xiv. 757. 
 
 SIGNATURE. 
 
 1. A testator wrote his will, and signed it in the presence of two persons 
 summoned by him for the purpose. They took the will, into an adjoining 
 room to sign their names ; the rooms communicated by a door, which was left 
 open. There was no proof that the testator did actually see the witnesses 
 sign their names. Held, that the signature of the witnesses was not made in 
 the presence of the testator. Norton v. Bazett, 0. S. v. 52. 
 
 2. Promissory note signed by mark may be good, and if signature not 
 denied, it is held admitted under rule of court. Willoughby v. Moullon, N. S. 
 vii. 251. 
 
 3. On an issue to determine the genuineness of a signature of A., speci- 
 mens of B.'s writing, in which the name of A. occurs, are not competent, 
 independent evidence to prove by comparison that the signature of A. was 
 written by B. Nor is the opinion of a witness that the signature was not by 
 A. any foundation for such proof that it was written by B. Haycock v. Grevp, 
 N. S. vii. 529. 
 
 SLANDER. 
 
 I. What Words ake Actionable. 
 
 1. When words elicited by inquiry are and are not a ground of action. 
 Nott V. Stoddard, N. S. v. 639. 
 
 2. Calling one a thief for stealing a tree or other thing adhering to the 
 freehold is not actionable. Stiieell v. Reynolds and Wife, N. S. xi. 133. 
 
 3. It is not error for the judge to charge, in an action of slander, that if 
 the words were spoken with the qualification, "if reports were true," that 
 will not change the actionable nature of the words. Johnson v. Brown, N. S. 
 X. 71. 
 
 4. It is not necessary that all the words laid in the declaration should be 
 actionable in slander. Klumph v. Dunn, N. S. x. 749. 
 
 5. All the words spoken at the time may be given in evidence as showing 
 the animus. Id. 
 
 6. To render words actionable ^«c «c, they must impute an offence of moral 
 turpitude punishable criminally. Id. 
 
 7. The law as to the off'ence in the country in which the words are spoken 
 is to determine their character. Id. 
 
 8. The words "she is a bad character, a loose character," spoken of a 
 
858 SLANDEE. 
 
 female, are actionable, supported by an innuendo, explaining them as a 
 charge of unchastity; and a colloquium is unnecessary. Vanderdip v. Eoe, 
 0. S. ii. 572. 
 
 9. It is essential to constitute slander that the words should involve both 
 legal and moral turpitude, and both these elements are included in a charge 
 against an administrator, that he had smuggled away from the appraiser's a 
 part of the personal estate of the intestate. Beck v. Slitiel, 0. S. ii. 122, 
 
 10. Whether "black leg" is slander — remarks ^ipon the case o{ Sarneit v. 
 Allen, 0. S. vii. 319. 
 
 11. Slang, in connection with suit for slander, remarks upon, 0. S. vii. 319. 
 
 12. It is not competent in slander to prove, by the opinion of witnesses, 
 that words spoken in the third person were spoken of plaintiff. McOue v. 
 Ferguson, N. S. xiii, 627, 
 
 13. When the words are in second person, it is a question of fact to whom 
 they were addressed. Id. 
 
 14. A withdrawal of a plea of justification is no evidence of contradiction 
 of the statement " that plaintiff had not said that the words were true." Id. 
 
 15. Plaintiff must prove the speaking of enough of the words alleged to 
 constitute the slanderous charge, and not equivalent words. Tucker v. Call, 
 N. S. xiv. 61. 
 
 16. The conduct and words of a defendant, after suit is brought, is not an 
 element of damages in an action of slander. StiUel v. Reynolds, N. S. xi. 133. 
 
 17. In slander for words per se actionable dai^age is presumed, without 
 proof of actionable damage. Id. 
 
 II. What is a Good Defence on Justification in Slander. 
 
 18. Query as to effect of defendant's proving his own bad reputatibn for 
 veracity, and the good reputation of plaintiff for chastity. Foot-note to Bridg- 
 man v. HopMns, N. S. i. 172. 
 
 19. In some cases it is held that defendant's plea of justification precludes 
 general evidence of bad reputation of plaintiff. Id. 
 
 20. If words constitute two distinct slanders, defendant may justify one, 
 and plead general issue to the other. Notl v. Stoddar, N. S. v. 639. 
 
 21. In slander, a justification, on the ground that the charge is true, can 
 only be sustained by evidence which would justify a conviction for the of- 
 fence. Tucker v. Call, N. S. xiv. 61. 
 
 22. In an action for slander, charging the defendant with having accused 
 the plaintiff of the commission of the crime of adultery, it is competent for 
 the defendant, in mitigation of damages, to prove that the plaintiff, before 
 the speaking of the words, was commonly reputed to be unchaste and licen- 
 tious. Bridgman v. Hopkins, N. S. i. 168. 
 
 23. Defence that explanatory matter accompanied the slanderous words 
 must show that the explanations accompanied the words, and were sufficiently 
 explicit to do away with the charge the words imputed. Van Akin v. Caler, 
 N. S. vi. 775. 
 
 24. Where the words are per se actionable, and are spoken in a moment of 
 passion, caused by improper conduct of the plaintiff, though the circum- 
 stances are not a complete defence, they may be considered in mitigation of 
 damages. Miles v. Harrington, N. S. xi. 336, 
 
 25. The plea of justification in an action of slander, not having been re- 
 stricted as to time, the proof should not be. Stowell v. Beagle, N. S. xii. 262, 
 
 26. It is improper to admit evidence of a prior difficulty between the de- 
 fendaTit and the father of the plaintiff, as it does not prove actual malice. Id. 
 
 27. An action for slander, in charging the plaintiff with having "stolen" 
 property, "and carried it away," will not be sustained by proof of a charge 
 that the plaintiff "took" things from the defendant, which were found in 
 the plaintiff's possession. Coleman ei ux. v. Playstead et ux., N. S. i. 508. 
 
 III. Op the Evidence in the Action. 
 
 28. Where the plaintiff proved the speaking of other defamatory words by 
 the defendant, to show malice, the defendant will not be allowed to ask the 
 witness how he understood them. Shaw v. Shaw, N. S. xi. 336. 
 
 29. Such inquiry will be allowed only in reference to the words charged 
 in the declaration, when they are ambiguous. Id. 
 
 30. In an action of slander, it is not proper to read to a witness the words 
 laid in the declaration, and then interrogate him concerning them. Oslorn 
 V. Forthee, N. S, xi, 598. 
 
SLANDEE. 859 
 
 31. The testimony of a witness on the trial of an action of slander, in 
 which he acknowledged the utterance of certain words alleged as slanderous, 
 cannot be proved as an admission in an action against him. Osborn t. For- 
 shee, N. S. xi. 698. 
 
 32. It is unnecessary, in a declaration, to aver that the words were uttered, 
 of and concerning the plaintiff, where the declaration avers that they were 
 uttered of and to him. Id. 
 
 33. In actions of slander, where the words charged impute crime, and the 
 defendant pleads the truth in justilication, he must prove the actual offence 
 charged — that is, he must prove the same matters or facts that would be req- 
 uisite to convict the plaintiff on trial upon indictment for the crime. Ellis 
 T. Buzzell, N. S. xii. 426. 
 
 34. But it is not necessary to prove the facts to the exclusion of all reason- 
 able doubt as in criminal cases. It is sufficient if the defendant leaves a fair 
 preponderance in the minds of the jury in his favor, notwithstanding the 
 plaintiff's evidence and the presumption of innocence. Id. 
 
 35. It is error in action for slander, in importing that an unmarried female 
 submitted to sexual intercourse, to charge that defendant, having pleaded 
 justification, must prove the plaintiff a woman of bad character beyond a 
 reasonable doubt. Wilson y.Barnet, N. S. xiv. 61, 
 
 36. Charging one with wilfully taking fruit, made a misdemeanor by Act 
 of Assembly, is not actionable. Id. 
 
 37. To constitute Slander, the words spoken must impute an offence, both 
 indictable and infamous. Stitzell v. Reynolds and Wife, N. S. xi. 133. 
 
 38. Burden of proof is on plaintiff to prove the words spoken within two 
 years. Fond v. Oibson, N. S. ii. 446. 
 
 39. Proof of a repetition of the original charge is allowed, for the purpose 
 of showing the degree of malice with which the slander was uttered. Johiv- 
 son V. Brown, N. S. x. 71. 
 
 40. The position and family of the plaintiff bear on the question of dam- 
 ages, and are admissible in evidence. Klumph v. Dunn, N. S. x. 749. 
 
 41. When good character may be given in evidence. Note to Bride/man v. 
 Hopkins, N. S. i. 171. 
 
 42. When plaintiff's bad reputation may be given in evidence. Id. 
 
 43. Any evidence tending to show that the plaintiff was liable to suspicion 
 of being guilty of the offence, short of a full justification, may be given in 
 evidence in mitigation of damages. Id. 174. 
 
 44. Proof of good faith and sincerity of defendant as rebutting evidence 
 of malice. Id. 172. 
 
 45. In an action of slander, charging the defendant with having accused 
 the plaintiff of the commission of the crime of adultery, it is competent for 
 the defendant, in mitigation of damages, to prove that the plaintiff, before 
 the speaking of the words, was commonly reputed to be unchaste and licen- 
 tious. Bridgman v. Hopkins, N. S. i. 168. 
 
 46. Where the defendant justifies words, spoken or written, which impute 
 crime to the plaintiff, by alleging the truth of such charge, he is bound to 
 adduce the same kind of proof, and many of the cases say, the same degree 
 of proof, which would be required to convict the plaintiff of the offence. 
 And the plaintiff, on his part, is allowed to encounter this evidence in the 
 same way he would be if he were on trial for the crime. Id. 171. 
 
 47. Absence of malice. A director of a company having learned. In his 
 capacity of director of another company, that the plaintiff had been dis- 
 missed from the office of secretary of the said company, on the ground of 
 gross misconduct, stated this at the board of the iirst-mentioned company, 
 and, in answer to a question from the chair, said that the charges were for 
 obtaining money under false pretences, and for giving an I. 0. U. for a petty 
 cash debt. At a subsequent meeting, held for the purpose of investigating 
 the conduct of the plaintiff, he refused, in the presence of the plaintiff and 
 his attorney, to state the charges against him. An action had been com- 
 menced against the other company, of which he was a director. Held, that 
 the communication was privileged ; and that the conduct of the defendant 
 being consistent with bonS, fides, that must be presumed ; and that the case 
 ought to have been withdrawn from the jury. Harris v. Thomp.ion, 0. S. i. 309. 
 
 48. Evidence of defendant's reputation for wealth is admissible in an action 
 of Blander. Slanwood v. Whitmore, N. S. xiv. 463. 
 
860 SLANDER— SLAVE. 
 
 49. The difference in actions for libel, between cases wliere the libellous 
 article is merely a republication of an article previously published, and where 
 it reasserts the charge, referring to the article as authority, exhibited. 
 Follett V. Jewett, 0. S. i. 600. 
 
 50. Testimony of witnesses hearing reports of the accusation in slander. 
 Nott V. Stoddar, N. S. v. 639'. 
 
 51. How far evidence of the effect of slander upon plaintiff is admissible. Id. 
 IV. Of the Damages and Judgments. 
 
 52. Defendant's wealth may be considered by jury in assessing damages. 
 Humphries v. Parker, N. S. vi. 184. 
 
 53. When jury not restricted to nominal damages, Markham v. Russell, N. 
 S. vi. 574. 
 
 54. Evidence of plaintiff's general character, in mitigation of damages. 
 Moyer v. Moyer, N. S. v. 191, 
 
 55. In an action of slander where no special damage is expressed, the jury 
 may give general damages. Miles v. Harrington, N. S. xi. 336. 
 
 56. When plea of justification fails, it may be considered by the jury in 
 aggravation of damages. Robinson v. Drummond, 0. S. iii. 55. 
 
 57. Where defendant only repeated what he heard fi-om another, giving 
 the name of the author at the same time, it may always be received to lessen 
 damages. Jfote to Bridgman v. Hopkins, N. S. i. 174. 
 
 58. Measure of damages as affected by malice, subject discussed. Id. 171 
 and 172. 
 
 SLAVE. See Fugitive Slave. 
 
 1. Demurrer to bill to open judgment on warranty for sale of a slave is 
 properly sustained for want of equity. Renfroe v. McDaniel, N. S. ix. 639. 
 
 2. The 13th amendment gave Congress power to pass positive laws doing 
 away with slavery. U. S. v. Cruikshank, N. S. xiii. 630. 
 
 3. Although an actual change of domicile, by consent of the master, from a 
 slave to a free state, has the effect to manumit a slave, yet a mere sojourn in 
 Ohio, or transit through the state, by a slave domiciled in Kentucky, does not 
 have such effect. Poindexter v. Anderson, 0. S. vi. 78. 
 
 4. A party acting as counsel for » fugitive slave, is protected from the 
 consequence? of his acts, so far only as they are within the proper limits of 
 his professional duty. Weim.er v. Sloane, 0. S. iv. 174. 
 
 5. An action lies at common law in a free state by the owner of a fugitive 
 slave, against one who Isnowingly harbors and conceals the latter; and the 
 act of Congress of 1798, has not destroyed the right. Van Meiter v. Mitchell, 
 0. S. ii. 279. 
 
 6. A slave carried into Pennsylvania, with her owner's consent, and resid- 
 ing in that state for a period of more than six months, with a full knowledge 
 on the part of the owner of the Pennsylvania Act of 1780, is entitled to her 
 freedom. Ferry v. Street, 0. S. i. 295. 
 
 7. Such law operates permanently upon the rights of strangers, where 
 they are informed of its provisions, and may, if they choose, avoid its conse- 
 quences. Id. 
 
 8. The constitution of Illinois prohibits slavery, therefore negroes within 
 its jurisdiction are supposed to be free. Rodney v. The Illinois Central Rail- 
 road, 0. S. vi. 439. 
 
 9. The state of Illinois being an independent sovereignty, willdetermine for 
 itself the condition of all persons within its territory, subject to the constitu- 
 tion of the United States and the laws made under authority of that instru- 
 ment. Id. 
 
 10. Slavery is the creation of municipal regulations in states where it 
 exists, and such regulations have no extra territorial operation or binding 
 force in anotlier sovereignty. Id. 
 
 11. The laws of other states recognizing slavery, being repugnant to the 
 laws and policy of the institutions of Illinois, neither the law of nations nor 
 the comity of states can affect the condition of a fugitive in Illinois, so as to 
 give the owner any property in or control over him, by force of any state 
 authority. Id. 
 
 12. The remedy in matters connected with fugitive slaves is to be found 
 under acts of Congress, and in the courts of the United States. Id. 
 
SLAVE— SOIL. 861 
 
 13. Property in persons being repugnant to the constitution and laws of 
 Illinois, trover cannot be maintained for tlie recovery of a person, or for 
 satisfaction for ttie loss. Rodney v. The Illinois Central Railroad, 0. S. vi. 439. 
 
 14. A bond given for the price of a slave sold in 1859 is valid. West v. 
 Mall, N. S. ix. 390. 
 
 15. A bond given for the hire of a slave for 1805, on January 2d, 1865, is 
 subject to be scaled- Maxwell v. Hipp, N. S. ix. 890. 
 
 IC. A master cannot absolve liimself from the legal and equitable obliga- 
 tion to talse care of his slave, and if he refuse to do so, he is liable for medi- 
 cal and other relief furnished by others. Thompson v. Alexander, 0. S. iii. 543. 
 
 17. An indictment can be sustained against one who holds, sells, or disposes 
 of an African illegally brought into this country from any foreign kingdom, 
 place or country, or from sea. United States v. Haun, 0. S. viii. 663. 
 
 18. Congress has the constitutional power to prohibit the foreign slave 
 trade. The United States v. Gould, 0. S. viii. 525. 
 
 19. Slave case, remarks upon decision of Judge Paine in. Legal Miscellany, 
 0. S. i. 126. 
 
 20. Slave case of Scott v. Sanford, remarks upon. 0. S. vii. 821. 
 
 21. Slave laws, history of. See U. S. v. Ilaun, 0. S. viii. 663. 
 
 22. No failure in consideration of notes giveil for slave, with warranty of 
 his slavery for life. Phillips v. Evans, N. S. vi. 248. 
 
 23. Effect of ordinance abolishing slavery upon covenant warranting slave 
 so for life. Id. 
 
 24. A promissory note given for the purchase of slaves after the Presi- 
 dent's proclamation of 1861, is void. Carson v. Hunter, N. S. s. 64. 
 
 25. A judgment of a court of Georgia in November, 1861, for the purchase- 
 money of slaves is valid. French v. Tumlin, N. S. i. 641. 
 
 26. Under the 13th amendment abolishing slavery, the Act of 1866, known 
 as the Civil Rights Bill, is constitutional. U. S. v. Rhodes, N. S. vii. 233. 
 
 27. A marriage between slaves was legally void, but if the parties after 
 their manumission continued to cohabit together, it was a legal consent and 
 ratification of the marriage. McReynolds v. The State, N. S. vii. 736. 
 
 28. A marriage between slaves is made valid by the ratification of the 
 parties after they become free. Jones v. Jones, N. S. xii. 191. 
 
 SMITH, MADELEINE. 
 
 Comments on trial of. 0. S. vi. 193. 
 
 SNOW. See Sidewalk. 
 
 A city is liable for injuries resulting from snow and ice allovned to accu- 
 mulate on its sidewalks. McLaughlin v. City of Carry, N. S. xiv. 757. 
 
 SOCIETY. 
 
 1. A deed of land to an organized, but unincorporated, society, if organ- 
 ized, vests a valid title to the grantee as a body. Hamblett and Wife -v. Bennett, 
 N. S. iii. 317. 
 
 2. Charter of an association incorporated by the Supreme Court. Society 
 V. Commth., N. S. vi. 633. 
 
 3. Power of expulsion in a society to provide assistance to sick members. Id, 
 
 4. Where the right of persons claiming to be trustees of a religious society, 
 to the office of a trustee, is disputed and denied, and they have not yet been 
 admitted to the exercise of any of its rights or duties, and they are not, and 
 have not been, in possession of the church edifice, nor of any of the tempo- 
 ralities of the church, they cannot maintain an action, in the name of the 
 religious society, to restrain individuals in possession, and claiming to be the 
 trustees of the society, duly elected, from closing the church edifice, and 
 preventing the pastor from holding religious meetings therein, &c. North 
 Baptist Church v. Parker et al., N. S. i. 571. 
 
 SOIL. See Fixtoee. 
 
 1. It is a question of evidence, depending on circumstances and the inten- 
 tion of the parties, whether A.'s chattel, fixed on B.'s soil, becomes part of 
 the soil, or remains the chattel of A. Lancaster v. Uve, 0. S. viii. 177. 
 
 2. Piles fixed in the bed of the Thames, in front of a wharf, for the pur- 
 pose of mooring vessels making to the wharf, and long enjoyed for such pur- 
 pose without interruption by the crown or the conservators of the river, will 
 
862 SOIL— SPECIFIC PERFOEMANCE. 
 
 be taken to have been put down in th« exercise of an easement, and to re- 
 main as chattels in the owners of the wharf, so as to give them a right of 
 action against any one injuring the piles. Id. 
 
 SOJOURN. 
 
 Although an actual change of domicile, by consent of the master, from a 
 slave to a free state, has the effect to manumit a slave, yet a mere sojourn in 
 Ohio, or transit through the state, by a slave domiciled in Kentucky, does not 
 have such effect. Poindexter v. Anderson, 0. S. vi. 78. 
 
 SOLDIER. See Seaman. 
 
 A soldier in actual service or a mariner at sea may dispose of his personal 
 estate, wages, &c., as he might have done under the common law. Leathers 
 V. Greenacre, N. S. vi. 533, 692. 
 
 SOUND. 
 
 Of a witness having notice only by sound. State v. Shinborn, N. S. vi. 379. 
 
 SOVEREIGN. 
 
 The several states have the general sovereign right to determine who may, 
 or who may not, live within their limits, to fix the political and social status 
 of each inhabitant, and' to prescribe his rights, and punish their violation 
 ■within its limits. The Dhiled States v. Gould, 0. S. viii. 525. 
 
 SOVEREIGNS. 
 
 Value of English sovereigns. Bush v. Baldrey, N. S. vi. 122. 
 
 SPANISH JURISPRUDENCE. 
 
 The interests of the husband and the wife in the community property are 
 severed by the death of either spouse under the Spanish jurisprudence, and 
 the principles of the laws of the republic and state of Texas. Oraig et at. 
 Appellants v. Smalley et al., Appellees, 0. S. viii. 497. 
 
 SPECIAL PLEADING. See Pleadino anu Practice. 
 
 Special pleading before a Justice of the Peace, though not to be encouraged 
 is not Unlawful, and when a defendant has pleaded specially, and the plain- 
 tiff demurs to his plea, the facts therein alleged are regularly on the record 
 and become substantive ground of the judgment. Commonwealth v. Johnston, 
 O. S. ii. 285, 517. 
 
 SPECIE. See Legal Tender. 
 
 1. On a note payable in specie, plaintiff can only recover the face with in- 
 terest though specie be at premium. Wosds v. Bulhns, N. S. iii. 373. 
 
 2. When a ground-rent is payable in "lawful silver money," it is payable 
 in legal-tender notes. Schollenberger v. Brinton, N, S. iii. 591. 
 
 SPECIFIC PERFORMANCE. 
 
 1. An action for the specific performance by the execution of a deed may 
 be maintained without a demand of the deed. Jones v. City, N. S. viii. 697. 
 
 2. Vendor being able to convey only part of the land agreed upon, vendee 
 mny compel specific performance as to that part. Covell v. Mosely, N. S. vii. 
 191. 
 
 3. When specific performance will not be decreed of a land contract. Cham- 
 bers V. Livermore, N. S. vi, 686. 
 
 4. Considerations not sufficient to induce court to set aside contract may 
 induce it to refuse specific performance. Eastman v. Plumer, N. S. vi. 447. 
 
 5. A bill in equity may be maintained by one underwriter against the in- 
 sured and the other underwriters. Insurance Co. v. Goodman, 0. S. iv. 481. 
 
 6. A court of equity will decree the specific perfoi'manoe of such an agree- 
 ment upon the principles which govern the court, in the exercise of this 
 branch of its jurisdiction. Johnson v. Hubbell el al., 0. S. v. 177. 
 
 7. Will not be decreed against a vendor whose wife refuses to join in the 
 deed. Seisz's Appeal, N. S, xiii. 527. 
 
 8. No abatement in the price would be just to both parties. Id, 
 
 9. The burden of showing title in himself, rests on the vendor who brings 
 a bill for specific performance against a vendee denying the sufficiency of his 
 title. Walsh v. Barton, N. S. xiii. 655. 
 
 10. A recent deed to vendor is not sufficient. Id. 
 
 11. A vendee is not compelled to perform his agreement if the property ia 
 subjeot to a judgment lien. Id. 
 
SPECIFIC PEEFOEMANCE. 863 
 
 12. An offer by letter to sell or buy a business, cannot be carried into effect 
 unless Irom the whole letter taken together an inference can be drawn from 
 which the material tei-ms of the contract can be ascertained. In the absence 
 of that. It amounts but to an offer to treat, as nothing can be supplied by 
 conjecture. What may be considered as fair inference in such cases. Cooper 
 y. Hood, 0. S. fii. 512. 
 
 13. This court will entertain a bill for the specific performance of an 
 agreement to purchase a chattel; but, if the case made at the hearings shows 
 that the price was inadequate, and the transaction upon the whole affair, the 
 bill will be dismissed, and that, although the court would not have given re- 
 lief to a party had he sought, in the same case, to set the agreement aside. 
 Fakke v. Gray, 0. S. viii. 116. 
 
 14. Will not be enforced where a contract is hard and destitute of equity, 
 Stoutenburg v. Tompkins, 0. S. v. 126. 
 
 15. But where defendant resists performance on the ground that the agree- 
 ment entered into differs from that which is reduced to writing, he must show 
 that the difference was the result of fraud, mistake, accident, or surprise. 
 Id. 
 
 16. The quantity of specific performance is discretionary with the court, and 
 the court will not enforce a contract where the parties are not mutually 
 bound to fulfil it. Id. 
 
 17. So where the interest of a party in a contract passed into the hands of 
 his assignee ; if the assignee seeks specific performance, he must affirm the 
 contract and make it mutual within a reasonable time. Id. 
 
 18. A vendor may obtain specific performance of a contract for the sale of 
 land, although he may be unable to convey the full amount bargained for, 
 provided it is not too considerable in amount. Foley v. Crow, N. S. xii. 729. 
 
 19. A representation made by' mistake and not substantially affecting the 
 rights of the parties is no bar to specific performance. Wuesthoff'^. Seymour, 
 N. S. xi. 57. 
 
 20. Will not be enforced where the contract does not designate with cer- 
 tainty the lands to be conveyed. Carr v. Passaic Land Co., N. S. x,i. 57. 
 
 21. Will not be decreed of any contract when any material parts of the 
 terms are uncertain. Nichols v. Williams, N. S. xi. 266. 
 
 22. In general, time is not of the essence of a contract to sell land, but it 
 may be made so either by the contract itself or by the nature of the subject- 
 matter, or by express notice requiring the contract to be fulfilled or rescinded 
 within a reasonable time stated. Ruckman v. King, N. S. ix. 146. 
 
 23. Parol evidence is admissible to show that, at the making of the con- 
 tract, time was considered of the essence of it. Id. 
 
 24. A stipulation to convey on receiving certain payments and mortgage 
 "at the time and in the manner mentioned," is not sufficient in itself to make 
 time of the essence of the contract, but under the circumstances of this case 
 they are held sufiicient. Id. 
 
 25. A contract to convey lands described, " and also two lots of land situ- 
 ate in Hackeneack township," at a specified price per acre for the whole, is 
 too uncertain to enable a court of equity to decree specific performance. Id. 
 
 26. Specific performance of a contract to sell land*cannot be decreed, un- 
 less the contract identifies the land, or furnishes the means of so doing. 
 JJcGwre V. Stevens, N. S. ix. 484. 
 
 27. Under the statute of frauds, parol evidence is not admissible to supply 
 the want of such identification of the land in the written contract. Id. 
 
 28. Parol evidence of what parties to a written contract intended to express, 
 is not admissible. Where parol evidence is received at all to explain written 
 instruments, it is to explain what was really expressed. Id. 
 
 29. A bill in equity to enforce a parol contract for the sale of land, cannot 
 be maintained in Mississippi, and part of performance will not take a parol 
 sale of lauds out of the statute of frauds. Id. 
 
 30. A parol gift of land will be equally protected with a parol sale, if 
 accompanied by possession. Neale y.Ncales, N. S. ix. 613. 
 
 31. Equity will enforce the specific performance of an agreement to dispose 
 of property in a certain way by will, if made upon a sufficient consideration, 
 or if a failure would work a fraud. Gupton v. Gupton, N. S. x. 135. 
 
 32. Specific performance will not be decreed ; — 
 
864 SPECIFIC PERFOEMANOE— STAMP. 
 
 (a). Against one party where the other has disregarded his reciprocal 
 obligations. 
 
 (6). Nor where the duties to be fulfilled by the grantee involve the exer- 
 cise of skill, personal labor, &c. 
 
 (c). Nor where there is want of mutuality. 
 
 [d). Nor where the grantor has a complete remedy at law. Marble Co. v. 
 Eiplei/, N. S. i. 199. 
 
 33. A delay of two and a half years not accounted for in bringing suit, is 
 fatal to relief. Haughwout v. Murphy, N. S. x. 202. 
 
 34. A party who seeks specific performance must be prompt in asking the 
 aid of the courts. Merriit y. Brown, N. S. x. 351. 
 
 35. He must show that he has performed or been ready and willing to 
 perform all the essential terms of his contract. Orane v. DeOamp, N. S. x. 351. 
 
 36. The court must be satisfied that the claim is fair, reasonable, just, and 
 equal. Id. 
 
 37. Though the granting of specific performance is a matter of discretion, 
 yet it does not rest in the mere caprice of the judge. Foot v. Webb, N. S. x. 
 478. 
 
 38. Equity will not make a decree for specific performance with compensa- 
 tion, where the adjustment of the compensation would be extremely difficult. 
 Phillips V. Slauch, N. S. x. 666. 
 
 39. A delay of fifteen years is a strong ground for refusing a decree of 
 specific performance. Eyre y.Eyre, N. S. viii. 119. 
 
 40. No decree can be made in a suit by husband and wife for .specific per- 
 formance, where the wife dies, and her children have not been made com- 
 plainants. Hand v. Jacobus, N. S. viii. 122. 
 
 41. The specific performance of an agreement for a conveyance in consid- 
 eration of support and maintenance, may be compelled in equity. Stanton v. 
 Miller, N. S. xii. 729. 
 
 42. The specific execution of a contract in equity is a matter not of abso- 
 lute right. Marsh v. F. P. ^ N.W. R. R. Co.,!^. S. xii. 390. 
 
 43. Specific performance will not be decreed where it is against equity 
 under the circumstances. Davit y. Pierrepont, N. S. xii. 328. 
 
 44. A contract which remains to be settled, will not be enforced by equity 
 on a bill for specific performance. Potts v. Whitehead, N. S. ix. 318. 
 
 45. A purchaser is entitled to have a contract for sale of land specifically 
 executed, with an abatement from purchase-money for deficiency of title. 
 Puck's Appeal, N. S. xiv. 128. 
 
 46. Purchaser from husband takes the risk of wife joining in the deed. Id. 
 
 47. Specific performance will not be decreed against husband whose wife 
 refuses to join, unless purchaser will pay full purchase-money. Id. 
 
 48. The specific performance of a contract is a matter not of absolute right 
 in the party, but of sound discretion in the court. Marsh v. Fairbury Railroad 
 Co., N. S. xiv. 561. 
 
 49. Railroad companies are incorporated not for the promotion of mere 
 private ends,' but in view of the public good they may subserve ; hence, con- 
 tracts with them which cannot be specifically enforced without interfering 
 with the rights of the public, will not in equity be enforced. Id. 
 
 60. Courts of equity will not enforce specific performance of a contract, 
 based upon a, family arrangement between father and son, in reference to 
 agreement to give the son certain land for services, where there is any want 
 of precision in the contract. Wright v. Wright, N. S. xiv. 710. 
 
 STAMP. 
 
 1. Act of Congress of July 4th, 1864, imposing stamp duty on judicial pro- 
 cess in state court unconstitutional. Kote to Hughes v. lAtsey, commenting on 
 Jones V. Estate of Keep, N. S. v. 161 . 
 
 2. Act requiring legal process to be stamped, cannot apply constitutionally 
 to writs issued by state courts. Fifieldv. Close, N. S. vi. 639. 
 
 3. The provisions of the internal revenue act requiring writs in state courts 
 to be stamped, is not within legislative powers of federal government. War- 
 ren v. Paul, N. S. iv. 157. 
 
 4. Congress has no power to prevent state courts from taking jurisdiction 
 of an action for the want of stamp. Ooppemol v. Ketcham, N. S. ix. 518. 
 
 6. When the only objection to the admission in evidence of a mortgage, is 
 
STAME. 865 
 
 fiat it was not properly stamped, it may be stamped after the yerdiot, and 
 then judgment entered. Janvrin v. Fogg, N. S. xi. 268. 
 
 6. Evidence admissible to prove that no consideration passed, as it bears 
 on the amount of stamps required. Groesbeck v. Seelii/, N. S. iv. 672. 
 
 7. Note being void for want of stamp, payee may recover in assumpsit on 
 original consideration. Wilson v. Corref, N. S. vii. 634. 
 
 8. How the afBxing of a stamp aifects the writ. Mason v. Cheney, N. S. vii. 
 815. 
 
 9. Assignment of mortgage not stamped is not void unless omitted with 
 intent to defraud. Dela v. Stanwood, N. S. xiii. 127. 
 
 10. The stamp on the deed is the same, whether the consideration be paid 
 in gold or United States notes. Ball v. Jordan, N. S. xiii. 717. 
 
 11. Where suit is brought on an instrument requiring a stamp under the 
 Act of July 13th, 1866, and there is no evidence that plaintiff omitted the 
 stamp with intent to evade the act, the instrument may be used in evidence. 
 Black v. Richardson, N. S. xiii. 783. 
 
 12. An unstamped receipt is admissible in evidence, where maker testifies 
 it was omitted without fraudulent intent. Emery v. Hobson, N. S. xiv. 399. 
 
 13. After respondent has appeared generally on an appeal, it is too late to 
 object to the appeal for want of a stamp. Id. 
 
 14. A purchaser cannot be compelled to carry out a contract of sale in 
 writing, which is invalid for want of stamp. Davy v. Morgan, N. S. ix. 638. 
 
 15. An auditor cannot declare a judgment on an amicable sdre facias void, 
 and no lien for want of stamp. Edwards' Appeal, N. S. x. 746. 
 
 16. Failure to stamp a note does not affect its validity, unless done with 
 intent to evade the law. Cole v. Cornelius, N. S. xiv. 642. 
 
 17. The omission of a stamp on a deed does not render it invalid or inad- 
 missible in evidence. Carson v. Phelps, N. S. xiv. 100. 
 
 18. The Acts of Congress requiring certain instruments of writing to be 
 stamped, before being used in evidence, apply to the use of such instruments 
 in all courts, both state and national. Chartiers Turnpike Co. v. Budge, N. S. 
 xii. 157. 
 
 If). By the Acts of Congress, an instrument of writing, not properly 
 stamped, is prohibited from being used as evidence, either in a state or a 
 Federal court. Id. 
 
 20. Such prohibition, for the purpose of enforcing payment of the tax, is 
 within the power of Congress, though it indirectly affects tlie rules of evi- 
 dence in state courts. Id. 
 
 21. The power of collectors, under the Act of July 14, 1870, to post-stamp 
 instruments, and remit the penalties, applies to notes issued before the act, 
 as well as those issued subsequently. Pugh v. McCormick, N. S. xii. 198. 
 
 22. An endorsement of a note need not be stamped. Id. 
 
 23. Nor a waiver, by an endorsee of demand of payment and notice of 
 dishonor. Id. 
 
 24. An agreement for the hire by defendant from plaintiffs of a pair of 
 carriage-horses for twelve months, the defendant to give three months' notice 
 previous to the expiration of the year of her intention to give up the horses, 
 was prepared in duplicate, and one part, signed by plaintiffs, was sent by 
 them to defendant by her servant, and the other part, signed by defendant, 
 was retained by plaintiffs. Defendant having given up the horses, without 
 notice, plaintiffs brought an action against her on the agreement. Having 
 lost their part, plaintiffs gave notice to defendant to produce her part of the 
 agreement at the trial, which was not complied with, nor was any evidence 
 given as to where it was. It being proved that it was not stamped when 
 sent by plaintiffs to defendant, Wilde, B., refused to admit secoridary evi- 
 dence of its contents; whereupon plaintiffs proceeded to give evidence of a 
 custom in the trade that it was usual for the hirer, under such circum- 
 stances, to give a three months' notice. The jury, however, negatived the 
 existence of such a custom, and found a verdict for defendant. Held, that 
 Wilde, B., was right in rejecting secondary evidence of the contents of the 
 document; and that, as it was proved to have been unstamped at the time it 
 was sent by plaintiffs to defendant, the proper presumption was that it re- 
 mained still unstamped; and the fact of the defendant's not producing it at 
 the trial, after notice so to do, afforded, under the circumstances, no ground, 
 
 55 
 
866 STAMP. 
 
 for the presumption that it had been subsequently stamped. Arbon v. Fus- 
 sell, N. S. ii. 99. 
 
 25. The evidence as to the custom of the trade was beside the point which 
 the jury had to determine, and when it was found that the document bore 
 no stamp, the plaintiffs should have been nonsuited. Id. 
 
 26. Lost instruments — presumptions as to stamps — introduction of sec- 
 ondary evidence of contents. Note to Arbon v. Fussell, N. S. ii. 106. 
 
 27. The cost of the stamp required by the U. S. Internal Revenue Act, to 
 be affixed to a deed, is properly a part of the expense of making the deed, 
 and is to be paid by the party paying for the deed. McOreedy v. Callahan, N. 
 S. ili. 241. 
 
 28. It being the custom in Philadelphia, in the absence of express con- 
 tract, for the purchaser to pay for the deed, he is also chargeable with the 
 cost of the stamp. Id. 
 
 29. Who to pay for stamp on deed. Note to McOreedy v. Callahan, N. S. iii. 
 242. 
 
 30. Whether duty payable on deeds of marriage settlement, &c., for a nomi- 
 nal consideration. Legal Miscellany, N. S. iii. 116. 
 
 31. Draft not stamped being considered void, suit was brought on original 
 contract. On trial after the Act of 30th June, 1864, the draft was produced 
 and stamped. Held, the draft was thereby made valid, and plalntiif could 
 not recover. Gibson v. Hibbard, N. S. iv. 571. 
 
 32. If original writ is stamped, depositions under it need not be. Cardell 
 v. Bridge, N. S. iv. 447. 
 
 33. An instrument which, upon its face, requires a certain stamp is admis- 
 sible in evidence if it bears that stamp, although there are facts connected 
 with it which, if inquired into, show that it ought to have borne a different 
 stamp. Austin v. Bunyard, N. S. v. 2417 
 
 34. Held, therefore, in an action against the maker of a post-dated banker's 
 check, which was stamped only with the ordinary penny stamp, that al- 
 though it subjected the parties to it to a penalty for not being stamped with 
 a bill-of-exchange stamp, was, nevertheless, receivable in evidence. Id. 
 
 35. Precept of register of wills for an issue, not a writ of original process 
 under act 1st July, 1862. Shay v. Henh, N. S. v. 63. 
 
 36. Omission cured by proviso to 16th section, Act 3d March, 1863. Id. 
 
 37. Act 1862 does not require stamp to magistrate's certificate of his 
 record of a conviction, taken to Superior Court on appeal. CommHhy.Har- 
 diman, N. S. v. 63. 
 
 38. Award of arbitrators does not require. Adley v. Gray, N. S.v. 255. 
 
 39. Note made before 1st June, 1863, admissible in evidence, if stamped 
 before offer. Deny v. Baker, N. S. v. 447. 
 
 40. Stamping in the presence of the court under Act of June 30th, 1864, 
 not repealed by law of March 3d, 1865. Garland v. Lane, N. S. vi. 255. 
 
 41. Penalty not incurred by accidental omission to aflSx. Hitchcock v. 
 Sawyer, N. S. vi. 775. 
 
 42. When penalty under Act of June, 30th, 1864, for failure to affix a 
 stamp, is incurred and instrument invalidated. Beebe v. Hution, N. S. vi. 574. 
 
 43. When an unstamped instrument may be read in evidence. Id. 
 
 44. May show that insufficiency of the stamp arose from inadvertence or 
 mistake, and without intent to evade stamp duty. Id. 
 
 45. Collector cannot devolve duty of affixing stamp in above case, upon his 
 deputy. Id. 
 
 46. Officer's return of mesne process, not a certificate requirinK. Graves 
 v. (7%, N. S. vi. 384. 
 
 47. Bond, given on an appeal, does not require. Violets. Heath, N. S. vi. 719. 
 
 48. Officer's certificate to a deposition, not liable to stamp duty. Prather 
 V. Pritchard, N. S. vi. 719. 
 
 49. Stamps, comments on. N. S. xi. 137. 
 
 50. To authorize a court to declare an instrument "invalid and of no 
 effect" for want of a stamp, it must affirmatively appear that the omission 
 was the result of an attempt to evade the statute. Brown v. Thomvson. N. S. 
 xi. 599. 
 
 51. A note to which a stamp has been affixed by the collector subsequent to 
 its issue, is valid to all intents and purposes. Aldrich v. Hagan, N. S. xi. 723. 
 
STAMP^STATE. 867 
 
 52. The" receipt of an express company for goods delivered to them is not 
 subject to a stamp. Belger v, Dinsmore, N. S. viii. 188. 
 
 53. An internal revenue stamp is no part of a note. Hallock v. Jaudin, N. 
 S. viii. 188. 
 
 54. A letter stating that a note will be paid by a creditor, does not require 
 a stamp. Boyd v. Hood, N. S. viii. 317. 
 
 55. The accidental omission to stamp a note, at the time it is made, will 
 not invalidate it. Gnen v. Lowry, N. S. viii. 317. 
 
 56. A judgment on an unstamped bond is not void. Eitter v. Brendlinger, 
 N. S. viii. 6.S8. 
 
 57. A promissory note made since the 30t.h day of June, 1864, cannot be 
 stamped in open court, and then read to the jury. Wigham v. Pickett, N. S. 
 viii. 701. 
 
 58. By the Act of Congress of 1864, receipts for goods delivered to a 
 common carrier for transportation, being in effect inland bills of lading, wei'e 
 not subject to stamp duty. United States v. Baltimore ^ Ohio R. R. Co., N. 
 S. vii. 757. 
 
 59. A corporation is liable to indictment for the act of its officer or em- 
 ployee, in issuing papers which the law requires to be stamped, without the 
 proper stamps, with intent to evade the provisions of the Act of Congress. Id. 
 
 60. Innocent omission to stamp a note does not make it inadmissible in 
 evidence. Tobey v. Chipman, N. S. vii. 64. 
 
 61. An insolvent's bond is in legal proceedings and need not be stamp'ed. 
 McGovern v. Hosback, N. S. vii. 64. 
 
 62. Voluntary bond unstamped not void, unless omission was to evade the 
 Act of Congress. Id. 
 
 63. Under the act of 1864, a summons from a justice where the amount 
 claimed is over $100, requires a stamp. Cole v. Bell, N. S. vii. 255. 
 
 64. Want of stamp being a question affecting jurisdiction, is not waived by 
 omission to specify it as a ground of error. Id. 
 
 65. Chattel mortgages not within the provision of the act authorizing stamp- 
 ing of mortgages by collector, when stamps omitted without intent to evade 
 the law. VaU v. Knapp, N. S. vii. 511. 
 
 66. Such mortgages in N. Y. are merely filed, not recorded. Id. 
 
 67. Not necessary on mortgage to secure contingent liabilities. Id. 
 
 68. The waiver of demand and notice of non-payment written on a note 
 requires no stamp. Pacific Bank v. De Ro, N. S. ix. 327. 
 
 69. The Act of Congress requiring stamps on instruments not properly 
 stamped, to be affixed by the collector, does not apply to the process of 
 courts of record. Cop^«rnoM v. ^eteAam, N. S. ix. 518. 
 
 70. An agreement unstamped and not oifered to be stamped, is invalid and 
 properly excluded as evidence. Davy v. Morgan, N. S. ix. 646. 
 
 71. The omission to stamp a deed must be with intent to evade the statute, 
 in order to make an objection to it available. Cagger v. Lenning, N. S. a. 133. 
 
 72. The fraudulent omission to stamp a note under the act of July 13th, 18G6, 
 cannot be taken advantage of on demurrer. Campbells v. Wilcox, N. S. x. 205. 
 
 73. United States stamps are not essential to the validity of a dee4, nor to 
 its admissibility in evidence in a state court. Sporrer v. Hifler, N. S. x. 206. 
 
 74. An instrument made within the Confederate lines is not void for want 
 of a stamp. Susong v. Williams, N. S. x. 206. 
 
 75. Unstamped instruments, subject discussed. N. S. x. 481. 
 
 76. A document, not purporting, on the face of it, to be a receipt for the 
 payment of money, may be shown to be a receipt by evidence aliunde, and thus 
 be brought within the stamp laws. Reg. v. Overton, 0. S. ii. 506. 
 
 STARE DECISIS. , ^. 
 
 1. A transaction, valid by the decisions of the court at the time, will not 
 be invalidated by the court's subsequent overruling of its decisions. Gclpcke 
 V. Dubuque, N. S. iii. 629. . ,,, . , 
 
 2. A question repeatedly decided is no longer open for discussion. Wnght 
 rf aZ. V. &7Z, N. S. iii. 54. . „ a •• oc 
 
 3. Comments upon some recent decisions in Pennsylvanra. 0. S. vii. 65. 
 
 1. Power of legislature to authorize voting beyond the limits of the state. 
 Speer v. School Directors, N. S. iv. 661. 
 
868 ■ STATE— STATUTE OF FEAUDS. 
 
 2. The judgment of a board of officers, haTing legal authority to pass on 
 claims, will be conclusive in actions in another state. Michigan t. Phoenix 
 Bank, N. S. ii. 565. 
 
 3. TJ. S. courts follow state court in the interpretation of their own stat- 
 utes. Goolidge t. CutHs, 0. S. vii. 334. 
 
 4. States agreeing to waive jurisdiction over certain portions of their ter- 
 ritory, effect of. Com, v. Fraeee, 0. S. v. 167. 
 
 5. Property in persons entering the United States with their own consent, 
 and mingling with property and persons in the states, in some manner and 
 to some extent falls under state authority. United States of America v. Eaun, 
 0. S. viii. 663. 
 
 6. An act regulating the time and manner of taking fish in the sea, within 
 the territorial limits of the state, is within the authority of the state legisla- 
 ture, and binding on citizens of other states. Dunham Y.Lamphere, 0. S. iv. 757, 
 
 7. A state, under its general and admitted power to define and punish of- 
 fences against its own peace and policy, may repel from its borders an unac- 
 ceptable population, whether paupers, criminals, fugitives, or liberated slaves; 
 and, consequently, may punish her citizens and others, who thwart this policy 
 by harboring, secreting, or in any way assisting such fugitives. &U8 v. The 
 State of Illinois, 0. S. i. 186. 
 
 STATE BRIDGES. See Bkidges. 
 
 STATE COUKTS. See Coni-lict of Jueisdiotiok. 
 
 1. Appellate jurisdiction of Federal courts over, discussed. 0. S. iv. 129. 
 
 2. The state courts and the Federal courts are co-ordinate tribunals. Stunt 
 V. Steamboat Ohio, 0. S. iv. 49. 
 
 3. Courts of one state bound to take cognizance of the local laws of a 
 sister state. Ohio v. Sinchman, 0. S. v. 424. 
 
 STATE BIGHTS. 
 
 Opinion of Attorney-General of Pennsylvania as to right of state of New 
 York to divert waters of Chemung river. 0. S. iv. 385. 
 
 STATE WORKS. 
 
 Works of internal improvement, erected at the expense and by the officers 
 of the state, for the benefit of the citizens at large, can never be regarded 
 by the law as a nuisance. Commonwealth v. Seed et al., 0. S. viii. 228. 
 
 STATUS. , 
 
 Where a negro slave, domiciled in Kentucky, after having been in Ohio on 
 an errand, or in iiinere, has voluntarily returned to servitude in Kentucky, his 
 status as a slave continues, and must be recognized by Ohio when brought 
 under consideration in connection with a contract made in Kentucky. Poin- 
 dezter v. Anderson, 0. S. vi. 78. 
 
 STATUTE OF ELIZABETH. 
 
 A bequest for the founding, establishing, and upholding an animal sanitary 
 institution. Held, to be a good charitable bequest, within the meaning of the 
 statute of Elizabeth. The University of London v. Yarrow, 0. S. vi. 169. 
 
 STATUTE OF FRAUDS. 
 
 1. No promise in writing is required, as the statute of frauds does not 
 apply to where debtor has paid money for benefit of creditor. Standi v. 
 Sines, N. S. iii. 571. 
 
 2. Statute of frauds does not require a promise to be in writing, when it 
 is in effect to pay the promissor's own debt. Moloney, Keeler, N. S. iii. 312. 
 
 3. A contract for sale of goods is not taken out of the statute of frauds by 
 payment of part of the purchase-money, unless at time of sale. Bissell v. 
 Balcom, N. S. iii. 253. 
 
 4. Performance decreed, although the entire consideration not named in 
 the written contract. Park v. Johnson, N. S. ii. 180. 
 
 5. An oral contract, valid in state where made, may be enforced in other 
 states, where such contract must be in writing. Allen v. Schuchardt, N. S. i. 13. 
 
 6. What constitutes part payment required bj^ statute of frauds in con- 
 tracts for goods. Dow v.Worthen, N. S. v. 251. 
 
 7. Delivery and acceptance caii only be shown by unequivocal act. Denny 
 V. Williams, N. S. ii. 445. 
 
STATUTE OF FRAUDS— STATUTE OF LIMITATIONS. 869 
 
 8. If evidence is too Blight to justify a verdict, the judge should withdraw 
 the case from the jury. Denny v. Williams, N. S. vii. 445. 
 
 9. Promise to pay debt of another must be in writing, which shows the terms 
 of the contract, without resort to parol evidence. Sail v. Soule, N. S. ii. 696. 
 
 10. Parol promise is not a legal consideration for subsequent one in writing. 
 Id. 
 
 11. Where it appears, on the face of a bill, that an agreement concerning 
 an interest in lands is in parol, the defence of the statute of frauds may be 
 talven advantage of on demurrer. Randall v. Howard, N. S. iii. 55. 
 
 12. A. sold notes and mortgage, and verbally guaranteed both notes and 
 security. Warranty held, not within the statute. Huntingdon v. Wellington, 
 N. S. iii. 182. 
 
 13. Evidence. — In an action of ejectment, to enforce a final contract for 
 the sale of lands, it is the duty of the court to hold the plaintiff to strict 
 proof; and mere instructions to the jury, as to what is required, is not the 
 limit of the authority of the judge presiding at the trial. He must see to it 
 that the correct result is produced. Wetherill v. Wetherill, 0. S. i. 637. 
 
 14. In order to take a parol agreement to convey out of the statute of frauds, 
 possession thereunder must be exclusive. Blakeslee v. Blakedee, 0. S. ii. 188. 
 
 15. In order to authorize equity to reform a deed, there must be evidence 
 of fraud or clear mistake. Id. 
 
 16. Evidence to lake a parol sale out of the statute must be express and 
 distinct, act only as to the subject of the contract, but of its consideration, 
 terms and conditions, and it is error to leave it to the jury to imply such sale 
 from circumstances. Greenlee v. Gi'eenlee, 0. S. ii. 188. 
 
 17. A written receipt for part of the purchase-money of land, defining the 
 land sold, but not defining the price, or the terms of sale, will not take a case 
 out of the statute. Id. 
 
 18. Possession, to take a ease out of a statute, must be exclusive, and be 
 taken and maintained under the statute. Id. 
 
 19. So a tenant in possession cannot become a purchaser by parol, without 
 a formal surrender of possession under the lease, and a resumption of it 
 under the contract of purchase. Id. 
 
 20. An oral agreement to settle disputed boundaries is not within the stat- 
 ute of frauds. Fox v. Griffilh, 0. S. ii. 672. 
 
 21. A subscription by the agent of the party to be charged is sufficient 
 under the statute of frauds, though the name or existence of a principal 
 does not appear upon the instrument. Dykera v. Townsend, N. S. i. 489. 
 
 22. As to what is an agreement to pay the debt of another, and what an 
 original undertaking. Quintard v. De Wolf, N. S. i. 181. 
 
 STATUTE OF LIMITATIONS. See Limitations. 
 
 1. The statute limiting suits in chancery to ten years, should be applied to 
 a suit to foreclose a mortgage against a purchaser under prior mortgages, 
 bought seventeen years after the mortgage debt was payable, the mortgage 
 given, and the mortgage debt payable before the statute took efi'ect, particu- 
 larly when the mortgagee had notice within two years after the sale under 
 the prior mortgages, and that the purchaser was in possession of the prem- 
 ises claiming title. Cleveland Ins. Co. v. Reed, 0. S. vi. 406. 
 
 2. Without such a statute, equity would not disturb the possession or title 
 of such a purchaser, as the demand is stale ; and there must be conscience, 
 good faith, and reasonable diligence to call into action the powers of a 
 court of equity. Id. 
 
 8. Quwre, Whether by analogy to the statutes of the state limiting the time 
 for the redemption of lands sold for debt, » subsequent mortgagee, not a 
 party to a bill of prior mortgage to foreclose, should maintain a bill in equity 
 to redeem after two years, against a purchaser under a decree on the prior 
 mortgages. Id. 
 
 4. An admission of a debt made to one who is not the plaintiff, or any 
 agent of his, but is a stranger, will not take a case out of the statute of limi- 
 tations. Anderson v. Allison, 0. 8. i. 250. 
 
 5. The statute of limitations does not apply to bank-bills in favor of the 
 bank. Dougherty v. The Bank, 0. 8. i. 689. 
 
 6. Computation of time — general rule includes one day and excludes the 
 other. Owen v. Slatter, 0. S. iv. 252. 
 
870 STATUTE OF WILLS— STATUTES. 
 
 STAT DTE OF WILLS; 
 
 Difference between enabling and disabling statutes. Courts will not so 
 construe a statute, when its words do not force them, as to defeat a devise or 
 bequest which would have been valid, if the testator had died iumediately 
 after making it; but as to a statute whose effect is to sustain rather than to 
 defeat a bequest, a different rule of construction prevails. Hoffman v. Hoff- 
 man, 0. S. iv. 252. 
 
 • STATUTES. 
 
 1. Performance of condition precedent. Difference between public and 
 private statutes. Where a statute affects a community, and requires as a 
 condition to its validity that something should be done. before it goes into 
 operation, the act has no force or effect until the thing required to be done is 
 performed ; but where a statute affects only one or more designated persons, 
 whether natural or artificial, those interested in its object may dispense with 
 a preliminary of this character, and claim the benefit of its provisions, with- 
 out requiring the performance of the condition. Savage v. WaUhe, 0. S. 
 iv. 252. 
 
 2. Where words are used in a statute, which, when used in reference to the 
 game subject, have obtained a fixed and definite meaning at common law, the 
 inference is, that they were intended to be used in their common law sense. 
 Vincent, ex parte, 0. S. iv. 251. 
 
 3. Repealing clause in unconstitutional statute. A repealing clause in an 
 unconstitutional statute, declaring '• that all laws contravening the provi- 
 sions of this act be and the same are hereby repealed," does not affect the 
 previous laws. Tims v. The State, 0. S. iv. 252. 
 
 4. Statute making appropriation. Proviso as to how same shall be ex- 
 pended. Construction of. Board of Education v. Chaney, 0. S. iv. 631. 
 
 5. Leading article on the subject of construing by equity. 0. S. vi. 513. 
 
 6. It is not the party whom the inebriate injures only, who can sustain an 
 action for damages under the statutes. By the Act of 1854, "any person 
 aggrieved " may sue, and the widow is a person " aggrieved" by the death 
 of her husband, by the Act of 1855, under which she has her action. Fink-v. 
 Oarman, N. S. i. 500. 
 
 7. Statute of Ohio, construction of, as to powers of insurance company as 
 affected by supplemental act. Gorton v. Insurance Co., 0. S. iv. 765. 
 
 8. Penalty annexed to an act by statute, implies its prohibition thereby. 
 Carpenter v. McClure, N. S. vi. 440. 
 
 9. When first statute imposing a penalty is and is not repealed by enact- 
 ment of a second, varying the punishment. i)ote« V. TAonjos, 506 ; Carters. 
 Burt, 506 ; Flaherty v, Thomas, N. S. vi. 507. 
 
 10. Effect of change of collocation of parts of a statute upon their con- 
 struction. Clement v. Kaighn, N. S. vi. 575. 
 
 . 11. Inchoate rights derived under a statute are lost by its repeal. Rich- 
 ardson V. Pulver, ST. S. xii. 126. 
 
 12. Statutes are generally to be construed so as not to include the state or 
 affect its rights unless it is specially named, or it is clear that it was intended 
 to be included. State of Missouri y.Abernathy, N. S. xii. 251. 
 
 13. Distinction between directory and imperative provisions discussed. 
 Note to Stevenson v. Lawrence, N. S. ii. 41 7. 
 
 14. Distinction drawn between acts to be done by a court and by a party. Id. 
 
 15. Kevenue and duty acts, not being penal, are not to be construed 
 strictly. Davy v. Morgan, N. S. ix. 647, 
 
 16. Pena,l statute may receive full meaning of the words, or even the more 
 extensive of two meanings. U. S. v. Hartwell, N. S. vii. 446. 
 
 17. To be construed by the meaning as expressed to those who are to be 
 governed by it. Legislator's intent not to be declared by himself. Steamboat 
 Co. V. Transportation Co., N. S. vii. 766. 
 
 18. The provisions of the statute for the suspension of an attorney being 
 penal, must be strictly construed, Klingensmith v. Kepler, N. S. xiii. 192. 
 
 19. No general words in a statute divest the government of its rights. 
 United States v. Herron, N. S. xiv. 192. 
 
 20. A maritime lien on a vessel is paramount to a domestic lien, under a 
 statute of a state of subsequent date. Daniel 0' Callaghon, Claimant v. Joseph 
 Eiggs, 0. S. v. 139. 
 
STATUTES. 871 
 
 21. A statute which revises the whole subject-matter of a former one, 
 works a repeal of it without express words. Oleson v. O., B. ^ Lake Pepin 
 Railroad, N. S. xiv. 710. 
 
 22. One legislature cannot bind future ones.; hence a law which enacts 
 that towns, &c., shall not aid a, railroad, " by virtue of the authority of any 
 other law of the state," must be understood of laws existing at the time of pas- 
 sage of such law. Id. 
 
 23. An act and its supplement are to be construed as one law. Van Riper 
 V. Essex PubUc Road, N. S. xiv. 711. 
 
 24. Distinction between contracts, the obligation of contracts, and those 
 which operate on remedy only, discussed. Note to McCormack v. Rusch, N. S. 
 iii. 93. 
 
 25. A statute authorizing a party who has paid usurious interest to sue for 
 the excess within one year is cumulative. Porter v. Mount, N. S. iii. 49S. 
 
 26. Construction of statute forbidding games of chance in taverns, and 
 what are games of chance. 0. S. i. 57. 
 
 27. Statute may destroy will. Note to Moultrie v. Hunt, N. S. i. 1C6. 
 
 28. Computation of time. In the computation of time under a statute, the 
 settled practice in this state is to include one day and exclude the other, 
 unless the Act of 7th February, 1843, which limits actions for the recovery of 
 lands to ten years after the accrual of the cause of action, a suit commenced 
 on the 7th February, 1853, is not barred. Owen v. Slaiter, 0. S. iv. 252. 
 
 29. Although the general rule in the construction of statutes, in cases 
 where the state is a party to the suit, is as above stated, yet under the 
 Homestead Act of Missouri exempting certain property from execution, a 
 homestead acquired before the right of action accrued to the state, and not 
 exceeding the statutory exemption, is exempt from execution issued in favor 
 of the state, it being included by implication in the act, and the intention so 
 to include the state, being apparent from analogous legislation. Missouri v. 
 Abemathy, N. S. xii. 251. 
 
 30. Retrospective statutes unless they impair the obligation of contracts 
 are not forbidden by the Constitution. The People ex rel. Pitts v. Supervisors 
 of VUler, N. S. xii. 263. 
 
 31. Remedial statutes are retrospective provided they do not disturb abso- 
 lute vested rights. Id. 
 
 32. The Act of 1871, relating to the supervisors of any county in New 
 York, was prospective only. Id. 
 
 33. Remedial statutes which do not impair contracts nor disturb absolute 
 vested rights, may be retroactive in their effect without being unconstitu- 
 tional. In re Kirkland, Chase ^ Co., N. S. xii. 300. 
 
 34. An act regulating the disposal of a part of the public funds of the 
 state, previously regulated by general laws, is a public act, of which the 
 courts will take judicial notice. State ex rel. Voight v. Eoeflinger, N. S. xii. 469. 
 
 35. An act repealing a public or general law is also a public or general 
 law. Id. 
 
 36. Whatever is given by statute may be taken away by statute, except 
 vested rights acquired under it. Id. 
 
 37. Sect. 1. of Gen. Stat. 998 of Kansas preserves all rights and remedies 
 under a repealed statute when the repealing statute is silent on the subject. 
 Boyle V. State of Kansas, N. S. xii. 595. 
 
 38. A statute may be good in part and bad in part, and when it is divisible 
 the good part will be sustained. Lowndes Co. v. Hunter, N. S. xiii. 53. 
 
 39. If matter foreign to the title is introduced into the statute but is divisi- 
 ble from that which falls within the title, the former only is void. Id. 
 
 40. Where a statute creates a claim against a county but provides no 
 remedy, a suit by summons and complaint is the proper one. Id. 
 
 41. When a local statute contains provisions which apply to the whole 
 state, it is valid though the title does not refer to them. The People ex rel. 
 Akin v. Morgan, N. S. xiii. 62. ... . • 
 
 42. It is otherwise where a public statute contains provisions of a private 
 nature not disclosed in the title. Id. 
 
 43. The law does not favor the repeal of statutes by implication. Water- 
 works Co. V. Burkhart, N. S. xiii. 262. 
 
 44. Where a statute is re-enacted after a construction given to it by the 
 
872 STATUTES— STAY LAWS. 
 
 commissioners of internal revenue, it is not to be deemed a legislative adop- 
 tion of such construction. Savings Bank v. United States, N. S. xiii. 717. 
 
 45. The repeal of a statute by implication is not favored. Somerset and 
 Stoystown Road, N. S. xiii. 717. v 
 
 46. A subsequent affirmative statute is a repeal of a former as to the same 
 matter if it introduces a new rule and is intended as a substitute. Jd. 
 
 47. If two acts provide remedies differing only in form, for the same 
 grievance, the latter is a constructive repeal of the first. Montel v. Consoli- 
 dation Coal Co., N. S. xiii. 783. 
 
 48. In the construction of the statutes of a state the Supreme Court follows 
 the decisions of the state courts. Walker v. State Harbor Corn's, N. S. xiii. 385. 
 
 49. The statutes of Missouri authorizing the courts to refer issues of fact 
 to a, referee in certain cases are direct and not mandatory. Fitzgerald v. 
 Eayward, N. S. xii. 771. 
 
 50. The copy of a legislative act, certified by the chairman of each house, 
 signed by the Governor, and filed in the office of the Secretary of State, is the 
 sole and conclusive evidence of the existence and contents of a statute. State 
 V. Young, N. S. ,. 679. 
 
 51. The journals of the legislative houses are not competent evidence to 
 show that a copy of a statute, authenticated in the manner above stated, does 
 not contain the whole of the law as, in point of fact, it was enacted. Id. 
 
 52. It is the province of the legislative department to certify, in its own 
 mode, the laws it enacts, and such certificate is conclusive on the other co- 
 ordinate departments of the government. Id. 
 
 53. Such also was the rule at common law. Id. 
 
 54. When legislature adopt or re-enact a statute, the construction as settled 
 by the courts is also adopted. Frink v. Pond, N. S. v. 704, but see supra 44. 
 
 ' 55. It is the duty of courts in interpreting statutes to ascertain the natural 
 and probable intent of the legislature, if the words are free from ambiguity, 
 by giving them their natural import, and where their meaning is doubtful, 
 to look at extrinsic circumstances. The People v. Schoonmaker, N. S. xii. 64. 
 
 56. The word "resident" in a statute ordinarily means an individual and 
 not a corporation. Id. 
 
 57. In the construction of statutes the meaning of the legislature is the end 
 to be sought, but such construction should not be repugnant to the clear 
 meaning of the words. Township of Leoni v. Taylor, N. S. x. 537. 
 
 58. A law will be construed to have a prospective operation only, unless a 
 contrary intent plainly appears. Smith v. Humphrey, N. S. x. 670. 
 
 59. Legislature adopting statute of another state is presumed to have 
 adopted the judicial construction thereof. Goodall v. Tulle, N. S. xiii. 192. 
 
 60. A statute giving a railroad company the right to lay their road along 
 a river will not be construed to give the right to take the land of the state 
 lying below high-water line. E. R. Co, v. Stevens, N. S. x. 165. 
 
 61. Laws authorizing public officers or trustees under a charter to do an 
 act are to be construed like other statutes. Kellogg -v. Page, N. S. xi. 618. 
 
 62. A statute directing a court to determine a case at the next term does 
 not prohibit such court to determine it after the expiration of such term. 
 Stevenson v. Lawrence, N. S. ii. 409. 
 
 03. A statute passed under the forms of law is binding upon all public 
 ministerial officers. People y. Salomon, N. S. ix. 232. 
 
 STAY LAWS. 
 
 1. Pennsylvania stay law of 18th April, 1861, is unconstitutional as applied 
 to cases where the remedy is suspended for an indefinite period. Clark v. 
 Martin, N. S. v. 191. 
 
 2. The proviso of the first section of the Act 2Ist May, 1861, granting stay 
 of execution, under certain conditions, on " all judgments or debts upon 
 which stay of execution has been or may be waived by the debtor in any 
 original obligation or contract upon which such judgment has been or may 
 be hereafter obtained," is unconstitutional, being in conflict with sect. 10, 
 art. 1, of the Constitution of the United States, and with sect. 17, art. 9, of 
 the Constitution of Pennsylvania. Billmeyer v. Evans & Rodenbauqh, N. S. i. 
 760. 
 
 3. Where the defendants, on the 12th July, 1860, signed a sealed bill 
 authorizing the entry of judgment against them for $1,000, payable twelve 
 
STAY LAWS— STEAMBOAT. 873 
 
 months after date, "without stay of execution after the day of payment," 
 the release of tlieir statutory right to a further stay became a part of the 
 contract, and, as such, could not be impaired or altered by the legislature; 
 therefore, where the Court of Common Pleas, after the day of paymeut, 
 gi'anted an additional stay of execution under the Act 21st May, 1801, it was 
 error. Billmcyer v. Evans S[ Rodenbaugh, N. S. i. 760. 
 
 STEAMBOAT. See Lieu, Collision, Shipping. 
 
 1. The boat will be liable, when it is furnished with stale-rooms and locks 
 to the doors, if a watch, breiistpin, pocket-money, and such like should be 
 stolen from the room in the night-time, without breaking. This is the gen- 
 eral rule, though there are exceptions. Vanderpool v. The Steamboat Crystal 
 Palace, 0. S.'' iii. 493. 
 
 2. Where such is the structure of the berths, the oiBcers of the boat must 
 know whether the locks are in order or not ; and, if not, they must look to 
 the protection of such property of the passengers as before mentioned. It 
 is not the duty of the passenger, in such case, as a general rule, to take such 
 articles to the clerk, or other officer, for safe keeping. They are part of his 
 personal apparel, and the inconvenience would be too great. Id. 
 
 3. Duties of steamers in the navigation of the Mississippi. Shute v. Goslee, 
 0. S. iii. 465. 
 
 4. Collision of — where it is the result of the fault of one boat, she cannot 
 complain that the other boat had not used extraordinary precaution before. 
 Id. 
 
 5. On Western rivers, practice as to seizures of, by sheriff, under statutes 
 of Ohio. See Raymond v. Whitney, 0. S. v. 123. 
 
 6. Owners of, liable for loss of a slave hired on board, who was killed in 
 consequence of a collision with another boat. Cook v. Seott, 0. S. iii. 54. 
 
 7. And this, though the slave's death was caused by his own act in jump- 
 ing overboard. Id. 
 
 8. Owners of, should provide competent officers. Id. 
 
 9. Running between ports of different states is under admiralty jurisdic- 
 tion, otherwise if between ports of same state. Steam Tow-Boat Co. v. R. R. 
 Co.,'0. S. T. 280. 
 
 10. If injured by collision with a pile, the top of which was under water, 
 damages for. Id. 
 
 11. Injury to, by schooner. — The clearest evidence of negligence must be 
 established against the schooner. Miller Y.Smith, 0. S. v. 314. 
 
 12. Steamboat and sail vessel — duties of each in passing. See Collision. 
 
 13. A steam vessel, having complied with the Act of February 28, 1871, 
 and the rules of the board of supervising inspectors, and the secretary of 
 the treasury, by placing on board a register, adopted by said board and sec- 
 retary, which is insufficient, is not liable to seizure for having in use an im- 
 perfect register, requiring frequent repairs. The Lac La Belle, N. S. xi. 557. 
 
 14. Act of Congress, 30th August, 1852, for security of passengers' lives 
 on, does not exempt owners from liabilities imposed by legal relationship be- 
 tween them and passengers. Swarthoul v. N. J. Tranfp. Co., N. S. vi. 190. 
 
 15. Common law redress not superseded thereby. Id. 
 
 16. Certificate of inspection of boilers will not exonerate owners from lia- 
 bility in an action for injury from explosion. Id. 
 
 17. Plaintiff may recover damages for bodily pain and suffering. Id. 
 
 18. A vessel propelled in whole or in part by steam is not liable to a pen- 
 alty for transporting goods, wares, and merchandise, without inspection of 
 the hull and boilers, under the Act of Congress of August 30, 1852. The 
 penalty is >alone for transporting passengers. United States v. The Propeller 
 " Sun," S.S.i. 227. 
 
 19. Queere? Can a vessel belonging at the port of Buffalo, where inspect- 
 ors are located by the Act of August 30, 1852, be inspected at the port of 
 
 Chicago 1 Id. , ,. . ^ 
 
 20. An answer to a libel of information must be full and explicit to each 
 article. It must deny the charges, or confess and avoid them by proper 
 averments of facts. Id. 
 
 21. A steamboat, employed in transporting passengers between ports in 
 the same state, is not liable to a penalty for not having the hull and boilers 
 inspected, under the Act of Congress of August 30, 1852, and the district 
 court has no jurisdiction. United States v. Steamboat "Seneca," N. S. i. 281. 
 
874 STEAMBOAT— STOCK. 
 
 22. Where the collision of a steamboat is of mutual fault, the loss that is 
 occasioned must be tlivided. Perrin v. Louisiana, 0. S. vi. 422. 
 
 23. The owners of a steamboat, employed in towing boats for hire, are not 
 common carriers. Wooden v. Austin^^. S. viii. 189. 
 
 24. The owner of a tug-boat, engaged in towing, is not a common carrier. 
 Ilaj/s V. Mitler, N. S. xi. 370. 
 
 STEAM-ENGINE. 
 
 1. When the use of, a nuisance. See Davidson v. Ishan, 0. S. v. 61. 
 
 2. When to be considered a fixture. See f ixtuke. 
 
 STEAM-TUG. 
 
 1. The observance of the special state laws regulating Sunday la'bor. is 
 not compulsory, within the provision of the Constitution as to the regulation 
 of commerce. Steam Tow-Boat Co. v. P., W. ^ B. R. E. Co., 0. S. v. 280. 
 
 2. When small vessels, as coal heavers, are in tow, the towing-boat is 
 the servant of the vessel towed, and the tug being thus bound to obey the 
 orders of the other vessel, is not responsible. The Steam-Tug Sampson, 0. S. 
 iii. 337. 
 
 STEVEDORE. 
 
 1. Where a stevedore is appointed by the charterer to superintend the 
 loading of a general ship, and such stevedore not acting under the orders of 
 the master in respect of such loading, is guilty of negligence, and causes in- 
 jury to goods sent to be carried on board of the ship, the master is not liable 
 for such negligence of the stevedore. Blakte and Others y. Stembridge, 0. S. 
 viii. 182. 
 
 2. The Gundreda was chartered by her owner to one Gallard, for a voyage 
 from London to Port Louis for a certain freight. The captain was to be ap- 
 pointed by the owner ; the stevedore, for outward cargo, was to be appointed 
 by the charterer, but to be paid by and act under the orders of the captain. 
 The ship being in port, but no crew, with the exception of the mate, being 
 on board, the stevedore and his men went on board for the purpose of load- 
 ing the vessel. The plaintiff having paid the broker the freight for the car- 
 riage of some sugar pans, sent them alongside the ship. The stevedore, in 
 loading the pans, was guilty of negligence, and injury ensued. He received 
 no orders respecting the loading of the pans from the master, who was not 
 on board. Held, that the stevedore was not the servant of the master, and 
 that the master was not liable for the negligence of the stevedore. Id. 
 
 STOCK. 
 
 1. In action for, the measure of damages is the highest value of the stock 
 between the time of sale and trial. Markham v. Jaudon, N. S. ix. 285. 
 
 2. Shares of stock in a national bank are personal property, but the law 
 creating them could separate them from the person of their owner for the 
 purpose of taxation. Tappan v. Merchants' Nat . Bank, N. S. xiii. 713. 
 
 3. A bondholder who converts his bonds into stock, is only entitled to re- 
 ceive stock to the amount of the principal of his bond. Sutliffy. C. & M R 
 R. Co., N. S. xiii. 776. J • ■ 
 
 4. Transfer of stock when there is no right to make the same. Bavard v 
 Bank, N. S. vi. 633. " 
 
 5. When company bound to make transfer of its stock belonging to one in- 
 debted to corporation. Dock Co. v. Heron, N. S. vi. 634. 
 
 6. The measure of damages for conversion of shares of stock loaned, is the 
 value at the time of trial. Musgrave v. Benkendorf, N. S. vi. 433. 
 
 7. Purchase of stock on margin not a pledge for payment of money requir- 
 ing notice to make legal sale. Hanks v. Drake, N. S. yii. 381. ' 
 
 8. Power of municipal corporation to subscribe for stock of R R Co 
 Clark V. The City, 0. S. v. 289. 
 
 9. A county has no power to subscribe for stock of R. R. Co. Stokes v 
 The County, 0. S. ix. 458. 
 
 10. Subscription to stock of a R. R. Co. by municipal corporation. See Mu- 
 
 HIOIPAL CORPOKATION. 
 
 11. The rnU- oi caveat emptor applies as well to the sale of stocks as of other 
 chattels, the vendor is only liable for misrepresentation or fraud. Rmton v 
 Maryoit, N. S. ^. 280. 
 
STOCK— STOOKHOLDEE. 875 
 
 12. The signing of a certificate, that certain parties have agreed to form a 
 bank, with the number of shares affixed to the several signatures, renders 
 the subscribers liable to the bank as stockholders. Cole, Receiver v. Byan, N. 
 S. viii. 379. 
 
 13. A transfer of stock bonS, fide, renders the transferee liable for the 
 amount unpaid. Id. 
 
 14. The capital stock of a corporation is a trust fund for the benefit of the 
 general creditors, and they have a right to actual payment of stock subscrip- 
 tions. Sawyer v. Hoag, N. S. xiii. 327. 
 
 15. A stockholder indebted to an insolvent corporation for unpaid shares, 
 cannot set off a debt due him by the corporation. Id. 
 
 16. Stock in a corporation is the individual property of the owner, which 
 he may sell or dispose of, like any other property, as he may see proper ; 
 and the president and directors have no control, power, or dominion over it, 
 and no duty to perform in reference to its sale, unless it be to see that 
 proper books and facilities are furnished for its transfer. Commissioners 
 T. Reynolds, N. S. xiii. 376. 
 
 17. In the purchase of stock by a director or president of a corporation 
 from a stockholder, the relation of trustee and cestui que trust does not exist 
 between them. Id. 
 
 18. A purchaser of stock from a trustee, with notice of the existence of 
 trust, as where it appears on the face of the certificate, takes it, subject to 
 all equities attaching thereto. Simons v. The South- Western Bank, 0. S. ii. 546. 
 
 19. Where a corporation had stock at its disposal, and gave an agent power 
 to sell it in market and issue certificates therefor ; the agent, by «■ secret 
 fraud, intended the transaction for his own benefit, and used the funds re- 
 ceived. Bank v. R. R. Co., 0. S. iv. 717. . 
 
 20. A certificate of stock recognized in commercial transactions and judi- 
 cial decisions. Matthews v. Mass. NaVl Bank, N. S. xiv. 153. 
 
 21. Where stock at a fixed market value is the consideration for a contract. 
 HumaMon v. Telegraph Company, N. S. xiv. 119. 
 
 22. A transaction in stock by way of margin, and payment of gain or loss, 
 is a mere wager. Max v. Gheen, N. S. xiv. 2U0. 
 
 23. If after demand principal fails to make good his margin, broker may sell 
 stock without further notice. Markham v. Jordan. N. S. vii. 572. 
 
 24. A bill brought to redeem stocks pledged, may be sustained though the 
 stocks are sold. Merrill v. Ilaughlon, N. S. xii. 56. 
 
 25. The corporation must be party to a suit, to compel subscription to 
 stock. Fiery v. Emmert, N. S. xii. 254. 
 
 26. Where an agent receives certain shares of stock to do " the best he can 
 Vfith them," and to receive one-half the proceeds, he has no interest in 
 them till sold. Wight v. Wood, N. S. x. 124. 
 
 27. The compensation for procuring the loan of money being fixed by 
 statute, cannot be enlarged in a particular case by any evidence. Perrine v. 
 Sotchkiss, N. S. X. 345. 
 
 28. Guardian converting stock belonging to his ward's estate, is liable for 
 the highest price the stock attains after such conversion. Lamb's Appeal, N. 
 S. viii. 635. 
 
 29. The holder of stock, as trustee, h&s priniA facie no right to pledge it as 
 security for his own debt. Shaw v. Spencer, N. S. viii. 219. 
 
 STOCKHOLDER. ^ ^ ^ , 
 
 1. The stockholder in a corporation de facto cannot, when sued for the 
 balance due on his stock for the benefit of creditors of the company, object 
 that it is not one dejure. Upton v. Hansbrough, N. S. xii. 462. 
 
 2. A majority of the board of directors can use the name of a corporation 
 in a suit. Johnston v. Jones, N. S. xii. 467. 
 
 3. By contributing to the capital, the subscribers are entitled to a share in 
 the profits, and are liable as copartners. Frost v. Walker, N. S. xii. 670. 
 
 4. A stockholder cannot maintain an action to affect a forfeiture of the char- 
 ter for non-user within a year. Oilman v. GreenPoint Sugar Co., N. S. xi. 194. 
 
 5. When company are bound to transfer its stock belonging to one in- 
 debted to corporation. Dock Co. v. Heron, N. S. vi. 634. 
 
 6. A stockholder who has paid for his stock, has waived his right to object 
 that the whole number of shares was not subscribed for. Ossipee Manufactur- 
 ing Co. V. Canney, N. S. xiv. 456. 
 
876 BTOOKHOLDEE— STOPPAGE IN TRANSITU. 
 
 7. A stockholder in a manufacturing company, knowing that the capital 
 stock has not been wholly subscribed, and who is privy to the contracting of 
 a debt, is individually liable. Hager v. Cleveland, N. S. xii. 188. 
 
 8. A stockholder represented by proxy is presumed to have notice of all 
 proceedings during such representation. Thames v. Central City Ins. Co., N. 
 S. xiii. 54. 
 
 9. There is no lien at common law in favor of a corporation against its 
 stockholders for debts due by them. Mut. Ins. Co. v. Cullom, N. S. xiii. 54. 
 
 10. But where the charter provides for such lien it will embrace a general 
 debt contracted with the corporation. Id. 
 
 11. Stockholder of bank, as to individual liability of. See Banks akd 
 Banking. 
 
 STOPPAGE IN TRANSITU. 
 
 1. Leading articles upon, 0. S. vii. 576, 641. 
 
 2. Stoppage of goods in transitu does not rescind the contract. Patten's 
 Appeal, N. S. iii. 573. 
 
 3. Where goods are sold to a vendee transacting business at the same 
 place with a vendor, and no transit of the goods is contemplated be- 
 tween the parties, and, by the contract of sale, the goods are to be deliv- 
 ered at fixed dates on the receipt of the vendee's note, on the delivery of 
 the notes, the right of stoppage in transitu does not exist. Solbrooh v. Vose, 
 N. S. iv. 602. 
 
 4. Where goods are in bond for duties, they may be sold subject to the lien 
 of the United States. If the vendor consents to a withdrawal for tranship- 
 ment, and the vendee executes the customary bond for that purpose, the 
 right of stoppage in transitu can no longet be exercised by the vendor. Id. 
 
 6. Even assuming that the right of stoppage in transitu continued as be- 
 tween the vendor and the vendee, it is lost if the vendee assigns to an honest 
 purchaser a bill of lading of the goods given to himself on his own transship- 
 ment. Id. 
 
 6. If vendor retakes the goods improperly by replevin he may be treated 
 as a trespasser, and so it seems may his sureties in the replevin bond. Id. 
 
 7. As long as the goods are on their way to the vendee, and while in the 
 hands of the middle-man, the vendor's lien remains, and he may enforce it 
 by stoppage in transitu. Cabeen v. Campbell, 0. S. vi. 561. 
 
 8. Constructive delivery discussed. Id. 
 
 9. Stoppage in transitu, when too late. See Heinekey v. Earle, 0. S. vii. 511. 
 
 10. Statute of it having taken away right of action for recovery or posses- 
 sion of liquor sold contrary to law, right of stoppage in transitu cannot be 
 enforced by suit. Howe v. Stewart, N. S. vii. 638. 
 
 11. Where J. W. purchased certain merchandise at Wilmington, N. C, and 
 shipped it on board a vessel bound to New Orleans, consigned to M. & R., to 
 be forwarded to J. W., at Cincinnati, with instructions to M. & R. to sell it 
 at a certain price ; and, thereupon, a portion is sold, and a portion remains 
 unsold, and continues its transit, the latter is still subject to the vendor's 
 right of stoppage in transitu, the middle-man having no such possession as to 
 end the transit. Secomb v. Wade, 0. S. i. 290. 
 
 12. An effort to sell, or a sale of part of goods consigned to a forwarding 
 merchant, in obedience to instructions, is not such a change of the destina- 
 tion or possession of the wliole, as to destroy the vendor's right in transitu. Id. 
 
 13. Goods in transit stopped by a general creditor, are still subjected to 
 the vendor's claim for the purchase-money. Id. 
 
 14. It is the settled rule in the law of stoppage in transitu, that movable 
 property sold, but not paid for, may, on the discovery of tlie vendee's insol- 
 vency before it has come into his possession, be seized by the vendor. 
 Campbell v. Cabeen, 0. S. v. 683. 
 
 15. Where A. shipped blooms to Philadelphia, consigning them to B. & 
 Co., with written instructions to deliver them "to the order'of C," and they 
 were so received, and 85 -pieces forwarded to C, who subsequently be- 
 came insolvent, the right of stoppage in transitu in A. is gone, inasmuch as the 
 transit was completely at an end when the blooms reached B. & Co., who 
 held them subject to C.'s orders, and as his agents, and D. may issue foreign 
 attachment, and seize the blooms as C.'s property. Id. 
 
STOEM— STEEAM. 877 
 
 STORM. 
 
 The fragments of a building, blown down by a tempest, are not thereby 
 converted into personalty, but pass to the purchaser of the realty at sheriff's 
 sale. Rogers v. Qillinger, 0. S. vi. 430, 
 
 STREAM. See Navigable Stream. 
 
 1. If city, in fixing a grade, turns a stream of water on the property of a 
 citizen, it is liable for damages. CHy of Aurora v. Reed, N. S. xii. 194. 
 
 2. Twenty years' use of the water of a stream, in a particular' way, is 
 evidence of a right thus to use the water. Burnham v. K'empton, N. S. iii. 
 380. 
 
 3. As between proprietors of dams on the same stream, he has the better 
 right who was first in point of time. Lincoln v. Ohardbourne, N. S. ix. 125. 
 
 4. The Ohio river, being a great navigable highway between states, the 
 public have all the rights appertaining to a navigable stream. Bainbridge v. 
 Sherlock, N. S. vii. 720. 
 
 5. No rule established in New Jersey to determine the line by which 
 shore in front of coterminous shore owners shall be divided between them, 
 Stockham v. Browning, N. S. vii. 767. 
 
 6. The same proof of user, which establishes the right to the use of the 
 waters of a stream, is equally conclusive as to the limitation of the right. 
 Griffin V. Bartlett, N. S. xiv. 711. 
 
 7. One who has a right to flow a meadow from October to .Tune, to the 
 height of an ancient dam, cannot flow the land in a different manner or 
 greater extent, by tightening the dam .and consuming less water by the aid 
 of new mills and machinery. Id. 
 
 8. The burden of proof is on the party claiming a right to flow. Id. 
 
 9. A stream which is a navigable highway for part of the year only, for 
 the purpose of running logs, is subject to the public easement only at such 
 times as it is capable of being used for that purpose, in its natural conditions. 
 Thunder Bay River Boom Co. v. Speechley, N. S. xiv. 712. 
 
 10. An attempt to render it capable by artificial means would make the 
 party liable to the riparian owners. Id. 
 
 11. Where lots are sold on streets terminating upon a navigable stream, 
 the streets will be considered as dedicated to the public down to low-water 
 mark, unless there is an express reservation of the flats. Stetson v. Bangor, 
 N. S. xii. 668. 
 
 12. The conversion of a way dedicated to the use of purchasers of lots ad- 
 joining a public way, does not authorize the award of more than nominal 
 damages. Id. 
 
 13. Owner of land on a natural stream has a right to reasonable use of 
 water, without regard to the effect on lower owners. Springfield y. Harris, 
 N. S. ii. 380. 
 
 14. The internal streams of a state, above the tide and above boat naviga- 
 tion, are in some sense public highways, for the floating of logs, in those parts 
 of the state where this species of transportation is of indispensable neces- 
 sity to, and has been long acquiesced in by, the inhabitants. Veazie t. Dwinel, 
 N. S. iii. 715. 
 
 15. In regard to such streams, those who erect and use mills thereon are 
 bound to make and use such mills with reference to the correlative right in 
 the owners of timber land adjoining such streams, to float the same to mar- 
 ket; and any unreasonable obstruction of this latter use of the stream will 
 be a common nuisance. Id. 
 
 16. No one has the right to pollute or corrupt the waters of a creek, or if 
 they are already partially polluted, to render them more so. All whose lands 
 border on a stream have the right to have its waters come to them pure and 
 unpolluted. Attorney-General v. Steward, N. S. ix. 387. 
 
 17. Riparian proprietor may increase volume of water by drainage, but 
 cannot, by an artificial channel, drain off water standing 0% his own land 
 upon that of another. Miller v. Laubach, N. S. iv. 818. 
 
 18. If a riparian proprietor diverts the water of a running stream for ar- 
 tificial purposes, in quantities sufficient to affect injuriously the rights of the 
 proprietor below him, and does not restore it to its natural channel, will be 
 held liable for damages. Stein v. Burden, 0. S. v. 729. 
 
878 STREET. 
 
 STREET. 
 
 1. Though the owner of a lot bounded by a street takes the fee to the 
 centre of the street, he cannot occupy it. Weisbrod v. Daenicke, N. S. xiv. 705. 
 
 2. A city is liable for neglecting to keep its streets safe and couTenient for 
 travel. Watson v. Tripp, N. S. xiv. 396. 
 
 3. A statute authorizing the expense of paving the road-bed of a city street 
 to be assessed in the proportion of two-thirds on the property abutting on 
 the street and the remaining third on the public at large, is unconstitutional. 
 Mayor of Newark v. State, N. S. xiii. 441. 
 
 4. Assessments for local improvements of this character may be made 
 against the property peculiarly benefited, but such assessment must be made 
 to the extent only of such peculiar benefits. Id. 
 
 5. This rule does not apply to improvements of the sidewalk, which is to 
 be regarded as subservient to the premises to which it is attached and the 
 expense of improving which may be charged wholly to the owner. Id. 
 
 6. A statute directing a municipal corporation to have a street paved at 
 the expense of the property-owners, and thereafter to keep it in repair at 
 the expense of the city, is not a contract with the property-owners, and the 
 legislature may direct a repaving at their expense. Id. 
 
 7. A municipal corporation has a right to raise its streets and bridge them. 
 AUentovm v. Kramer, N. S. xiii. 527. 
 
 8. A municipality exercising its lawful authority is not liable for col- 
 lateral injuries. Id. 
 
 9. It is liable for negligence in construction or repair of public works. Id. 
 
 10. A contract with a railroad company that the company shall keep the 
 streets in order, and be liable for any injury for neglect, will not exempt the 
 city. Watson v. Tripp, N. S. xiv. 396. 
 
 11. The conveyance of lots, by referring to streets laid down on a map 
 adopted by commissioners, is a dedication on the part of the owner of the 
 land within the lines of the streets. Clark v. City of Elizabeth, N. S. xiv. 127. 
 
 12. On opening the streets no damages will be allowed. Id. 
 
 13. The deed is the best evidence of dedication. Id. 
 
 14. An agreement that a strip of land should be used as a public street, 
 may be enforced in equity, whether it has been dedicated to the public use 
 or not. Seegar v. Harrison, N. S. xiv. 590. 
 
 15. The grantee of premises conveyed as bounded by a street, is bound to 
 take notice of the existence of such street. Id. 
 
 16. A grant of land forming part of a street as marked on a map, subject 
 to the use of owners of lots thereon and the public generally, is a dedication 
 to the public of such street. Earle v. New Brunswick and Mitchell, N. S. xiv. 
 702. 
 
 17. The fee of streets in a city resides in the city corporation in trust. 
 People et al. v. Kerr et al., N. S. ii. 377. 
 
 18. The purchaser of a lot calling to bound on a street not yet opened, is 
 entitled to a right of way over it until it reaches some other street. Hauicy 
 V. Mayor of Baltimore, N. S. x. 538. 
 
 19. The authorities of a town are not relieved from the obligation to re- 
 move dangerous nuisances from the streets though a railroad has an ease- 
 ment over them. Norristown v. Moye/r, N. S. xi. 199. 
 
 20. The use by a citizen of a public way is for transit only, with such 
 stoppages as are absolutely necessary. Id. 
 
 21. Loungers are obstructions of the public right of way, and nuisances. 
 Id. 
 
 22. Where plaintifi" was injured while lawfully in a street, by a falling 
 pole," the town will be liable whether the neglect to remove the pole was wil- 
 ful or not. Id. 
 
 23. A mere plat of land laying off streets, blocks and houses in a city is 
 not a dedication of the streets to public use; the city authorities must 
 affirmatively receive and adopt them. Parsons v. Atlanta University. N. S xi. 
 396. 
 
 24. In the absence of formal acceptance, there must be clear proof of con- 
 tinuous use for a reasonable time. Id. 
 
 25. Where the public are enjoined from opening a street, a private citizen 
 cannot have an injunction to prevent the street being obstructed, unless he 
 shows special damage, pending the former injunction. Id. 
 
STREET, 879 
 
 26. A municipal corporation is not liable for injuries resulting from tlie 
 improvement of streets. Kavanagh v. Brooklyn, N. S. ii. 630. 
 
 27. The grading, paving, &o., of a street by the city is not evidence of a 
 claim of title, but only of a right of way. Cowenhmen v. Brooklyn, N. S. ii. 606. 
 
 28. Legislature has unlimited power over public rights in highways in- 
 cluding streets in a city. People v. Krrr, N. S. ii. 377. 
 
 29. Sale of lots on street by metes and bounds according to a plan. War- 
 ren V. Blake, N. S. vii. 442. 
 
 30. Report of commissioners on altering streets. People v. Brooklyn, N. S. 
 vii. 317. 
 
 31. Discretion as to acceptance of streets is exclusively for the corpora- 
 tion. Pope V. The Town of Union, N. S. vii. 701, 
 
 32. Duty of municipal corporation to open and repair streets, sidewalks, 
 and bridges. Gty of Joliet v. Fcrfcy, N. S. v. 445. 
 
 33. Railway companies operating their trains along or across the streets 
 of a city are bound to use care so as not to inflict injury to persons lawfully 
 using the streets. Bannon v. R. R. Co., N. S. v. 470. 
 
 34. Where a city charter provides that in opening streets compensation 
 shall be made by a jury is a condition precedent to the other power. Leslie 
 V. St. Louie, N. S. x. 602. 
 
 3-5. Whei-e a grantor conveys certain lots bounding on a street or alley, 
 neither he nor his assigns can afterwards close the said street or alley. 
 Cox V.James, N. S. %. 601. 
 
 36. A city is not liable for injuries resulting from a highway that has sud- 
 denly become deficient or out of repair unless it had notice. M^ard v. Town 
 of Jefferson, N. S. ix. 263. 
 
 37. A municipal corporation is not liable in a private action for damages 
 for injuries caused by neglect to keep its streets in repair. Detroit v. Blake- 
 by, N. S. ix. 670. 
 
 38. Where an injury occurred at street crossing no recovery can be had 
 without proof of actual negligence. McPheeters v. Ban. ^ St. Jos. R. R. Co., 
 N. S. ix. 325. 
 
 39. Liability of town upon indictment for defect in highway. State v. 
 Dover, N. S. vi. 317. 
 
 40. Right to lay out a town-way on grounds of persons to points of 
 pleasing scenery. Higginson v. Nahant, N. S. vi. 187. 
 
 41. Irregularity or want of authority in establishing a street no defence 
 in action for negligence for want of care thereof. Mayor v. Sheffield, N. S. 
 vi. 441. 
 
 42. Use of an unenclosed alley in a city by an adjoining lot-owner as 
 notice of exclusive right thereto. Gordon v. Sizer, N. S. vi. 512. 
 
 43. The laying out of a highway without application for it is invalid. 
 State V. Morse, N. S. xi. 331. 
 
 44. Equity will not restrain a city from assessing the property-owners for 
 the cost of paving a street. Leibenstein v. City of Newark, N. S. xiii. 59. 
 
 45. Municipal authorities have power to bind property-owners for strict 
 improvements. Schumm v. Seymour, N. S. xiii. 331. 
 
 46. A contractor under proposals for street improvements must be held to 
 his bid. J. M. Board v. City of Hoboken, N. S. xiii. 395. 
 
 47. A municipal corporation is liable for injuries resulting from the ob- 
 structing of a street. Mayor v. Holmes, N. S. xiii. 780. 
 
 48. Parties who stand by and see a street paved which is a benefit to their 
 property, will be estopped from questioning the right of the city to do it. 
 Curtis V. Comm. of Utica, N. S. xii. 658. 
 
 49. Where the owners of land abutting on an alley have permitted its use 
 by the public a dedication. City of Evansville v. Evans, N. S. xii. 533. 
 
 50. Whether a cellar along the line of a public street, unprotected by a 
 suitable barrier, constitutes a defect in the highway, is a question for the 
 jury. Stack v. Portsmouth, N. S. xii. 662. 
 
 51. A citizen who suffers a special injury from the obstruction of a street, 
 is entitled to relief by injunction. B. ^ 0. R. R. v. Strauss, N. S. xii. 731. 
 
 52. Municipal corporations are not liable for consequential damages result- 
 ing from the opening of streets. City of Delphi v. Evans, N. S. xii. 826. 
 
 53. Where lots are sold on streets bordering on a navigable stream, the 
 
880 STREET— SUBEOGATION. 
 
 streets will be considered as dedicated to the public down to low-water mark. 
 Stetson T. Bangor, N. S. xii. 668. 
 
 54. Where contracts for paving city streets are required by law to be let to 
 the lowest bidder, the purpose is to secure such competition as the nature of 
 the case will admit; and something is necessarily left to the discretion of the 
 city council in determining what course will best accomplish that end. May 
 T. City of Detroit, N. S. xii. 149. 
 
 55. It is not illegal under such a law to call for proposals for the putting 
 down of the various kinds of wood and stone pavement, thus putting them in 
 competition with each other; and then when the proposals are in, select for 
 putting down the kind for which the most satisfactory bids, all things con- 
 sidered, are received. Id. 
 
 56. But when the kind is thus selected, the lowest bidder therefor has an 
 absolute right to a contract. Id. • 
 
 57. A city has ^ull control over the grade of its streets. City of Aurora v. 
 Reed, N. S. xii. 194. 
 
 58. But it cannot exercise that dominion to the injury of another's property 
 in a way that would render an individual liable in damages, without becom- 
 ing itself responsible. Id. 
 
 69. If in fixing the grade it turns a stream of water on the property of a 
 citizen, it is liable for damages. Id. 
 
 60. It is no defence that the citizen might have dug ditches, he was under 
 no legal obligation to do so, and the city was. Id. 
 
 61. An act of the legislature granting to a passenger railroad company the 
 right to extend its tracks over certain additional streets in the city of New 
 York, provided for compensation to the city for " the value of the rights 
 and privileges granted." The commissioners reported that the company 
 should pay annually 2J per cent, of the gross receipts for travel on the 
 new tracks, which being calculated by the proportion such new tracks bore 
 in length to the whole line was fixed at ^s/jths of 1 per cent, on the whole 
 gross receipts for travel. In re Second Avenue Railroad, N. S. xii. 448. 
 
 62. The nature of property in streets, the nature and value of the franchise 
 conferred on a passenger railroad by allowing it to lay tracks in streets, and 
 the principles by which the value of such franchise may be determined, dis- 
 cussed. Id. 
 
 63. Action on the case lies against municipality for injury to an individual 
 resulting from want of repair of the slreets. Smoot v. Mayor, 0. S. iii. 55. 
 
 64. Street contractor, negligence of. See Municipal Cokporation. 
 
 65. Improvements of, by grading, paving,&c.,bycity,and taxing the lots front- 
 ing thereon to pay for the snme,is constitutional. Weeksf. The Oity, 0. S. viii. 625. 
 
 66. Rights of the public in are equal, and see as to obstruction to horse 
 railway. Com. v. Temple, 0. S. viii. 678. 
 
 STREET RAILWAY COMPANY. See Railroad ; Negligence. 
 STRIKE OF LABORERS. 
 
 Effect of, to relieve contractor. See Adam^ v. The Royal Mail Steam-Packet 
 Co., 0. S. vii. 508. 
 
 STUDY OF THE LAW. 
 
 On the continent, leading article upon. 0. S. v. 577. 
 SUBROGATION. 
 
 1. Subrogation is purely an equitable result, and depends on facts to de- 
 velop its necessity, that justice may be done. Mosier's Appeal, N. S. viii. 63. 
 
 2. Subrogation is applicable wherever a payment is made under a legiti- 
 mate and fair effort to protect the ascertained interests of the party paying, 
 and where intervening rights are not legally jeopardized or defeated. Id. 
 
 3. Is of pure equity and benevolence, and not of contract. BleakWsAv 
 peal, N. S. X. 797. ^ 
 
 4. Right of insurers of mortgagee's interest to assignment and subrogation 
 upon offer to pay loss and amount due on mortgagp. Ins. Co. v. Boyden, N. 
 S. V. 127. 
 
 5. Defendant had a right to pay if he chose, and then to be subrogated to 
 the rights of the bank. Slack v. Kirk, N. S. xi. 192. ' 
 
 6. An endorser paying a note is subrogated to the rights of the bank. 
 Toung v. Vough, N. S. xii. 467. 
 
SUBEOGATION— SUNDAY. 881 
 
 7. A mortgagor paying a note for which the mortgage has been pledged as 
 security is subrogated in the place of the payor. Kamend v. Huelbig, N. S. 
 xii. 61. 
 
 8. The doctrine of subrogation and equitable contribution discussed. Note 
 to Brown v. Simons, N. S. iii. 154. 
 
 9. To entitle a party who pays the debt of another to the rights of the 
 creditor by subrogation, the debt must be paid at the instance of the debtor, 
 or the person paying it must be liable as suretj' or otherwise for its payment. 
 Garret Wihon v. William and Mary Ann Brown, his Wife, N. p. i. 763. 
 
 SUBSCRIPTIONS. 
 
 1. A law of Pennsylvania, declaring that the city corporations of Pitts- 
 burg and Allegheny are authorized to subscribe to the Ohio and Pennsylvania 
 Railroad Company, and that the certificates of stock are exempted from taxa- 
 tion, held to be valid.. Amey v. Allegheny City, 0. S. ix. 338. 
 
 2. What is sufficient consideration for promise to pay subscription for the 
 building of a seminary. Seminary v. McDonald, N. S. vi. 119. 
 
 3. When rule does not apply to a suit upon a stock subscription. Walker 
 T. R. R. Cb. N. S. vi. 506. 
 
 4. Promise to pay voluntary subscription binding though no promisee 
 named. Comstock v. Howe, N. S. vi. 314. 
 
 5. How voluntary subscription collected. Id. 
 
 6. What is sufficient evidence of acceptance of a subscription to stock. 
 Seminary v. McDonald, N. S. vi. 119. 
 
 7. Subscription to a church, see Contkaot. 
 
 ' 8. Subscription to stock of ^ R. R. Co. by municipal corporation, see 
 
 Municipal Cokporation. 
 
 9. Subscription to railroad stock by municipal corporation, see Sharpless 
 v. The City, 0. S. ii. 85. 
 
 SUBSTITUTE BROKER. 
 
 1. Enlistment and desertion may be proved otherwise than by record — 
 custom of substitute brokers — town quota. Lebanon v. Heath, N. S. vii. 315. 
 
 2. Money paid to broker for substitute, who proved to be a deserter, may 
 be recovered in action for money had. Id. 
 
 SUBTERRANEAN WATERS. 
 
 Leading article on. N. S. ii. 65. 
 
 SUFFRAGE. See Negro Sotfrage. 
 
 SUICIDE. See Insurance, Insanitv, Lunatic. 
 
 1. A party cannot be convicted of an attempt to commit suicide, if, at the 
 time of the act done, he was so drunk as not to know what he was about. 
 Reg. V. Moore, 0. S. i. 37. 
 
 2. Suicide of party assured, effect of. See Home v. Ins. Co., 0. S. ix. 496. 
 
 SUIT. See Action. 
 
 Action against a foreign corporation, under New York Code, is a "suit. ' 
 Note to Barney v. Globe Bank, N. S. ii. 221. 
 
 SUMMONS. . . , 
 
 1. A summons is not a proper process in a criminal prosecution. Indiana 
 ». 6. <«• M. R. R., N. S. iv. 583. . 
 
 2. A return to a summons, stating that defendant was served personally, is 
 sufficient, without stating it was in the country. Enowles v. Gas, ^c, Co., N. 
 
 S- xiii. 591. , •, , ^ • J 
 
 3. A summons irregularly served cannot be amended after judgment. 
 
 Foreman v. Scott, N. S. xii. 62. 
 
 SUNDAY. 
 
 1. The premium on a life insurance policy due on Sunday is not to be paid 
 until Monday. Hammond v. Ins. Co., N. S. iii. 186. 
 
 2 A notice of protest, delivered to an endorser on Sunday, is void, and 
 does not render him liable on the note. Rheem v. Carlisle Bank, N. S. xiii. 499. 
 
 3. Nor does the receipt of notice in that way on Sunday amount to a valid 
 notice to him on Monday. Id. ,,,„„, , .v-x j 
 
 4. Fact that journey- ended on Sunday, and the law of the state prohibited, 
 
 66 
 
882 SUNDAY. 
 
 work or travelling on that day, did not affect the case. Jonu v. Trant. Co., 
 N. S. vii. 634. 
 
 5. Admissions, which would operate as an estoppel, are not inoperative, 
 because made on Sunday. Riley v. Butler, N. S. xii. 327. 
 
 6. Execution of will is not work or labor, and may be done on Sunday. 
 Bennett v. Brooks, N. S. iv. 768. 
 
 7. The defendant hired a horse of the plaintiff on Sunday, to go on that 
 day to the town of S. He went several miles beyond, and while doing so 
 caused the death of the horse by overdriving. Held, in an action of trover 
 joined with case, that the plaintiff could recover, notwithstanding the statute 
 prohibition of all secular business on Sunday. Frost v. Plumb, N. S. xiii. 537. 
 
 8. And it seems that he could equally recover for an injury to the horse by 
 the wrongful act of the defendant, within the limits for which he was'hired. 
 Id. 
 
 9. The distinction is between wrongful acts which constitute a mere breach 
 of the contract, requiring, on the part of the plaintiff, the proof of the con- 
 tract as an essential part of his case, and wrongful acts that are independent 
 of the contract, and toward which the contract stands in a mere incidental 
 relation. Id. ' 
 
 10. Although Sunday is dies non juridicus at the common law, and although 
 the statute of Illinois prohibits all secular employment on that day, yet in 
 special cases, where public policy, or the prevention of irremediable wrong 
 requires it, the courts may sit on that day and issue process. Langaber v. 
 Fairbury R. R. Co., N. S. xiii. 747. 
 
 11. An injunction issued on Sunday, to prevent a railroad company from' 
 taking possession of a public street in a town, without having made com- 
 pensation to property-owners who would be injured thereby, sustained. Id. 
 
 12. Contract for advertisement in Sunday newspaper void. Smitk et al. v. 
 Wilcox et al., N. S. ii. 59. 
 
 13. An act done on Sunday, but not in the ordinary calling of the parties, not 
 void under the statute of Rhode Island. Allen v. Gardiner, N. S. ii. 442. 
 
 14. Trials by associations on Sunday. Society v. Comm'th, N. S. vi. 634. 
 
 15. Jews bound to observe civil regulations for keeping. Id. 
 
 16. Where a contract for labor has been performed, it cannot be defended 
 on the ground that it was made on the Sabbath. Merriwether v. Smith, N. S. 
 xi. 399. 
 
 17. Injury received b'y horses and carriage through negligence may be re- 
 covered, though let by plaintiff to defendant for use declared unlawful by the 
 Sunday Act. Nodine v. Doherly, N. S. v. 346. 
 
 18. The hire of horses and carriages let on Sunday, to be used to ride to a 
 place known as a place of resort for pleasure, cannot be recovered, being let 
 for a purpose made unlawful by statute. Id. 
 
 19. Travelling on, may be proved in defence to action for injury from de- 
 fective way. Jones v. Andover, N. S. v. 382. 
 
 20. What is illegal travel on. Id. 
 
 21. Replevin may be maintained for goods sold on. Tucker v. Mowrev, N. 
 S. iii, 766. 
 
 22. Secular labor of any kind is violation of law, and a disturbance of 
 others, if done in their presence, even with their consent. Geovae v. Georoe. 
 N. S. vii. 319. " 
 
 23. Execution of a will on Sunday is not labor within the statute. Id. 
 
 24. In an action against a carrier to recover damages for injuries happen- 
 ing to a passenger, it is no defence that the accident occurred on Sunday. 
 Carroll v. Staten Island R. R. Co., N.- S. xii. 668. 
 
 25. Services performed on week-days, in accordance with request in a letter 
 written on Sunday, may be recovered for. Tuckerman v. Hinkley, N. S. iv. 764. . 
 
 26. A contract for the sale of goods on Sunday void. Banks v. Werts, 0. S. 
 viii. 423. 
 
 27. One travelling upon the Sabbath, without excuse, cannot maintain an 
 action against the town for any damage he may suffer, through defects in its 
 highways. Johnson v. Tovm of Warburg [Irashurg], N. S. xiv. 547. 
 
 28. In u, conviction, under the Act of 22d April, 1794, for performing 
 worldly employment on Sunday, it should appear what the work was for 
 which the defendant was convicted, but as the "whole record is to be taken 
 
SUNDAY— SUEETY. 883 
 
 together, it is sufficient if the description of the work appear in any part of 
 It. Commonwealth y. Johnston, 0. S. ii. 285, 517. 
 
 29. Driving an omnibus as a public conveyance daily and every dav is 
 worldly employment, and not a work of charity or necessity, within the mean- 
 ing of the Act of '94, and therefore not lawful on Sunday. Id. 
 
 30. A contract of hiring by the month does not, in general, "bind the hire- 
 ling to work on Sundays, and, if his work be such as the statute forbids an 
 express agreement to perform it on Sunday will not protect him, for such a 
 contract is void. Id. 
 
 31. Though traTelling does not, in a legal sense, fall within the description 
 of worldly employment intended to be prohibited, yet the running of public 
 conveyances on Sunday is forbidden by the statute. Id. 
 
 32. The Christian religion, as the acknowledged religion of the people by 
 consent and usage of the community, is entitled to respect and protection 
 from the law, although it be not the legal religion of the si;ate, established by 
 law. Lindenmuller v. The People, 0. S. ix. 591. 
 
 33. Christianity is a part of the common law of England, and the common 
 law of England, subject to legislative or constitutional alteration, is, and ever 
 has been, a part of the law of this country. Id. 
 
 34. As a civil and political institution, the establishment and regulation of 
 the Sabbath is within the just powers of the civil government. Id. 
 
 35. Hence, when the legislature enacted a statute whereby Sunday theatres 
 and_ theatrical entertainments on the Sabbath are declared nuisances, and 
 an indictment was duly found and prosecuted against the lessee of such a 
 theatre, it was held to be within the constitutional power of the legislature 
 to enact such a statute, and that it did not interfere with religious belief, 
 worship, faith, or practice. Id. 
 
 36. Action for damages resulting from breaking of machinery, while plain- 
 tiff was engaged in working on Sunday. McGattick v. Wasson, 0. S. iv. 637. 
 
 37. What is a work of necessity. Id. 
 
 38. Driving an omnibus on Sunday is worldly employment, and indict- 
 ment for it will lie. The Com. v. Johnston, 0. S. ii. 432. 
 
 39. What kind of labor is a breach of the law forbidding worldly employ- 
 ment on the Lord's day. The Com. v. Johnston, 0. S. ii. 517. 
 
 SUPEESEDEAS. 
 
 With regard to appeals in equity, and appeal perfected, after the levy of a 
 fi. fa., or a decree, but before sale, is a supersedeas. Chillas v. Brett, 0. S. iii. 
 116. 
 
 SUPPLIES. 
 
 1. Where, in the admiralty, two claims are made upon the fund in the 
 registry of the court, one arising from a mortgage given at a foreign port, 
 and entered upon the vessel's register, for outfit and supplies for the voyage. 
 and the other upon a bill of lading executed by the master for the voyage. 
 Held, that the latter has priority over the former in the distribution of the 
 fund. Jusli Pon v. The Proceeds of the Brig Arbustci, 0. S. vi. 511. 
 
 2. By the maritime law there is no lien for supplies in the home port. 
 Bee v. Brig Minnie, 0. S. vi. 328. 
 
 3. Supplies furnished steamboat, see Liens. 
 
 4. Support from adjoining property, see Easement. 
 
 SUPREME COURT OF THE U. S. 
 
 1. Supreme Court will not give an answer to a merely abstract proposi- 
 tion. Havemyer v. Iowa Co., N. S. v. 566. 
 
 2. In 1853-4, sketch of. 0. S. ii. 705. 
 
 SURETY. 
 I. Of Sureties and Guarantees generally. 
 
 1. "I hereby become security of C. for the fulfilment of the within obliga- 
 tion," is an original undertaking, and the party making it may be held with- 
 out proving diligence in pursuing C. Ashton v. Bayard, N. S. xii. 792. 
 
 2. The dictum that the contract stated in Oilbert v. Henck, 6 Casey, N. S. 
 xii. 205, was a guaranty, overruled. Id. 
 
 3. The contract of a guarantor is his own separate contract. He is not 
 bound to do what the principal has contracted to do, like a surety, but only 
 to answer for the consequences of the default of the principal. He is no 
 
884 SUEETY. 
 
 bound to take notice of the non-performance of tlie original contract of the 
 principal, and the creditor should give him notice; and if the guarantor can 
 prove that he has suffered damage by the failure to give such notice, he 
 will bo discharged to the extent of the damage thus sustained. He cannot 
 be sued with his principal. One contracting jointly with the principal 
 debtor is, it seems, never deemed a guarantor. McMillan v. Bull's Head Bank, 
 N. S. X. 431. 
 
 4. Queers as to the doctrine of notice in cases of guaranty. Id. 
 
 5. I"., a commission merchant, being in arrears to his consignors, on their 
 requisition procured defendant as security. The bond did not recite that P. 
 was at the time in arrears ; and it ^as held by a mnjority of the court that 
 the omission to state this fact was evidence of fraud to go to the jury. Lee 
 V. Jones, N. S. iv. 487. 
 
 6. Wliere A. becomes surety for the faithful discharge of B.'s duties as 
 cashier, the obligation continues so long as B. holds the ofEce by virtue of 
 the appointment under which the bond is given. Though the office be 
 usually treated as elective for one year only, yet the surety will be liable for 
 B.'s acts if B. continue in office after the year. But on B.'s re-election and 
 qualification for a second term, the liability on the old bond ceases. Sparks v. 
 Farmers' Bank, N. S. ix. 365. 
 
 7. Where a creditor employs' legal process against a debtor in the usual 
 way and without unnecessary delay, it is primS, fade proof of such diligence 
 in collecting his debt as will give him a claim against a guarantor. Hoffman 
 V. Bechtel, N. S. v. 745. 
 
 8. But this presumption may be overcome by proof that the creditor had 
 special knowledge of assets or opportunity of collecting his debt, and that 
 his failure to do so was the result of bad faith, or neglect to do what a pru- 
 dent creditor who had no other security but the debtor's obligation would 
 have done under the circumstances. Id. 
 
 9. Creditor not bound to use active diligence to collect debt of principal. 
 Glazier v. Douglass, N. S. v. 63. 
 
 10. What security, discharge of which by creditor, will release a surety. Id. 
 
 11. Suretyship and guaranty, distinguished. Allen v. Hubert, N. S. v. 192. 
 
 12. A sheriff's return to an execution showing the collection of the money, 
 is conclusive upon his sureties, in a suit for not paying it over. Bagot v. 
 State ex rel., N. S. x. 749. 
 
 13. False and fraudulent representations made to the surety at the time of 
 the execution of a bond of indemnity, constitute a good defence to an action 
 against the surety. Fisliburn v. Jones, N. S. xii. 535. 
 
 14. Liability of, for money stolen from a public officer. U. S. v. Dashiell, 
 N. S. vi. 575. 
 
 15. Effect of reversal of judgment against principal upon judgment against 
 surety. U. S. v. Allsbury, N. S, vi. 575. 
 
 16. The failure of the selectmen to examine the accounts of a town treas- 
 urer as directed by the statutes of Maine, will not affect the liability of the 
 sureties on his bond. Farmington v. Stanley, N. S. xii. 669. 
 
 17. Where a township treasurer is re-elected for a second year, with a bal- 
 ance of funds of the previous year in his hands, his surety for the second 
 year is responsible for the proper administration of that balance, as vyell as 
 for the moneys received by him during the second year. Wilson v. The School 
 Directors of Elizabeth, 0. S. ii. 123. 
 
 18. If a judgment has been irregularly obtained, sureties can be heard, if 
 they apply seasonably, on motion to set aside the judgment, and let them in 
 to defend the original action. They may also be allowed, for their own pro- 
 tection, to defend an action brought against their principal. Jewett v. Orane, 
 N. o. 1. 0/8. 
 
 19. The surrender by a creditor of securities in his hands, is only a de- 
 fence jtjro tanto to a surety. Everly v. Rice, 0. S. i. 442. 
 
 20. Indorsement of treasurer on notes signed by himself, is sufficient to 
 make surety liable. Lexington, ^c, R. R. v. Mwell, N. S. iv. 309. 
 
 21. Surety liable for money collected without suit. Ditmars v. Com.. N. S. 
 iv. 442. 
 
 22. If vendor retakes the goods improperly by replevin, he may be treated 
 as a trespasser, and so it seems may his sureties in the replevin. Eolirook 
 V. Vose, N. S. iv. 602. 
 
SUEETY. 885 
 
 23. In Wiseonsin, no attorney can be a surety. Cothren v. Connaughten, N. 
 S. ix. 119. 
 
 24. A married woman is not liable upon a promissory note signed by her 
 as surety for another. Hansel v. De Witt, N. S. xii. 58. 
 
 25. Where a note draws interest until paid at highest legal rate, an agree- 
 ment to pay additional sum for extension is- usurious. While the agreement 
 is executory, it is void, and does not discharge a surety. Meiswinkle v. McOuU 
 lough, X. S. xii. 127. 
 
 26. Notice by surety to holder of note not yet due, to sue as soon as it 
 should become due, will not' discharge him. Hellen v. Crawford, N. S. iii. 310. 
 
 II. Of Co sureties, and wh.^t Acts of Creditor will Discharge Surety. 
 
 27. Eilect of signing on the faith of having co-sureties which are never ob- 
 tained. Xoie to Insurance Company v. Brooks, N. S. iii. 402. 
 
 28. Where a party executes a bond, as surety with another, whose name 
 appears to the bond, but which name has been forged, he will not be liable. 
 Seely v. The People, N. S. ii. 344. 
 
 29. Surety has the same equitable defence against an assignee for benefit 
 of creditors as he has against the assignor. Reed v. Sands, N. S. ii. 185. 
 
 30. Variation of contract without his knowledge releases him. Bagley v. 
 Clark, X. S. ii. 567. 
 
 31. Two or more persons severally signing a promissory note as sureties do 
 not thereby incur a joint liability. Bunker v. T\ifts, N. S. viii. 188. 
 
 32. Several sureties paying the debt of their principal is no evidence of a 
 partnership between them. Id. 
 
 33. Bond signed on condition that it should be signed by a certain person 
 as co-surety is void without his signature. People y. Bostwick, N. S. iv. 503. 
 
 34. Erasure of name of a signer of a bond to the government, though be- 
 fore approval and acceptance, discharges a subsequent signer. Smith v. U. 
 S., N. S. iv. -rill. 
 
 35. Creditor is entitled to the benefit of any security his debtor may have 
 given his surety. Rankin v. Wilsey, N. S. iv. 447. 
 
 86. But if surety acquires title the pledge may be merged. Id. 
 
 37. Discharge of principal does not discharge surety of person not sui juris. 
 Jones V. Crosthwaite, N. S. iv. 447. 
 
 38. Forbearance, without binding agreement, will not exonerate. Van Rens- 
 selaer V. Kirkpatrick, N. S. vi. 190. 
 
 39. Such agreement not binding, without valid consideration. Id. 
 
 40. Payment of instnlments, no such consideration. Id. 
 
 41. Not discharged by discontinuance of attachment against principal. 
 Barney v. Clark, N. S. vi. 445. 
 
 42. When payee of note not estopped from collecting it of surety, by infor- 
 mation communicated to him. la. 
 
 43. How far surety may be estopped by his act from showing that his signa- 
 ture was fraudulently obtained. Note to Inmrance Co. v. Brooks, N. S. iii. 402. 
 
 44. Alteration of times of paying interest after execution of a note dis- 
 charges surety. Dewey v. Reed, N. S. iii. 188. 
 
 45. Where E. signed an application of C.'s to be supplied with gas-light 
 and a meter on certain premises, as surety; it was held, that he was only 
 liable for gas supplied to C, and not for that furnished to a subsequent 
 tenant. Manhattan Gas-Light Co. v. Ely, N. S. iii. 60. 
 
 46. Nor will the surety be released, if failing to detect an error, the 
 selectmen certify his account as correct. Farmington v. Stanley, N. S. xii. 669. 
 
 47. A surety who has been discharged by failure to pursue the principal, 
 and afterwards makes a promise to pay, upon obtaining certain money, only 
 becomes liable upon fulfilment of condition. Funk v. Frankenfield, N. S. xii. 735. 
 
 48. Where A. obtains an accommodation accept?ince of B. by giving his 
 note with a surety as security, and renews the acceptance without the surety's 
 consent, the surety is discharged. Thomas v. Stetson, N. S. xi. 599. 
 
 49. Mere forbearance by a creditor to the principal debtor, however preju- 
 dicial it may be to the surety, will not have the eflFect of discharging him 
 from his liability. Railroad v. Shaeffer, N. S. viii. 110. 
 
 50. The case of the sureties of a railroad officer, charged with the receipt 
 and disbursement of money, is within the rule; and the company is not 
 bound to dismiss the officer as soon as any default becomes known, and to 
 
886 SURETY. 
 
 give notice to the sureties that they may take measures to secure themselves 
 by proceedings against the principal. Railroad v. Shaeffer, N. S. viii. 110. 
 
 51. Where an officer of a corporation violates his duty, knowledge on tlie 
 part of other officers of the corporation of the default, or even connivance in 
 it, does not discharge the sureties. Id. 
 
 52. Where the principals and three sureties signed a promissory note, 
 after which, and before delivery, by an arrangement between the principals 
 and the surety who first signed the note, his name was erased t herefrom 
 without the knowledge or consent of the other sureties; and the note was 
 then delivered to the payee in a condition Which showed upon ils face that 
 the name of the surety who first signed the same had been erased ; whereupon 
 the note was received with knowledge of the relation of principal and surety 
 existing between the makers: it was held, Ist. That the discharge of the 
 surety released the co-sureties who signed the note when his name was upon 
 it. 2d. That the payee received the note under circumstances which would 
 put a reasonably prudent man upon inquiry ; and was charged with knowl- 
 edge of the 'rights of the co-sureties. It was also held, that if the makers 
 of the note were all principals the erasure of the name of one would be 
 
 , a discharge of the others only pro tanto. McOramer v. Thompson et al., N. S. 
 vii. 92. 
 
 53. To make negligence of creditor such that it will exonerate surety the 
 request must be to collect the debt by process of law; a request to push the 
 debtor is not enough unless that term meant and was understood by the 
 creditor to mean by process of law. Singer v. Troutman, N. S. vii. 126. 
 
 54. Indulgence of principal by creditor with consent of surety does not 
 discharge the latter, and consent is a question for the jury. Treat v. Smith, 
 N. S.vii.447. 
 
 55. Where one of several parties signing a note is the real principal, the 
 rest are primd facie sureties, and the burden of proof is on the party alleging 
 contrary. Flanagan v. Post, N. S. xiii. 62. 
 
 56. A security from principal to surety ensues for benefits of co-surety. Id. 
 
 57. Representations made to a surety on the faith of which he signs a note, 
 will not aflFect a co-surety unless he had knowledge of them. Id. 
 
 58. If surety gives his notes, to be in full satisfaction of original debt, 
 ■when paid, the principal is not discharged, if part of notes only are paid. 
 Emery v. Richardson, N. S. xiii. 127. 
 
 59. Surety upon satisfying debt, is entitled to all the securities either legal 
 or equitable which creditor has, and if he parts with any the surety is exon- 
 erated to the extent he may be prejudiced thereby. Freaner v. Tingling, N, 
 S. xiii. 199. 
 
 60. Creditor cannot be compelled to resort to principal debtor before pro- 
 ceeding against surety. Id. 
 
 61. One who has been discharged from his primary liability, may still be 
 held to contribute in favor of co-surety. Hill v. Morse, N. S. xiii. 257. 
 
 62. Rights of sureties inter see. Subject discussed, N. S. xiii. 529. 
 
 63. When a debtor tenders payment of a debt for which a surety is bound 
 and the creditor declines to receive it, the surety is discharged. Joslyn v. 
 Eastman, N. S. xiii. 783. 
 
 64. A covenantee vouched to defend against an adverse title may vouch 
 his grantor to defend in the same suit. Chamberlain v. Preble, N. S. vi. 128. 
 
 65. Liability of surety for guardian for making improvident investment. 
 Richardson v. Boynton, N. S. vi. 320. 
 
 66. The discharge of the debtor in bankruptcy after breach of an insolvent 
 bond is no defence to the sureties on the bond. Claflm v. Cogan, N. S. ix. 512. 
 
 67. A surety is discharged where the creditor, after notice and request, 
 has been guilty of a delay which amounts to gross negligence, and by his 
 negligence the surety has lost his security or indemnity. But the omission 
 of the creditor to sue a principal residing in another slate could not, under 
 any circumstances, as between him and the surety, make him chargeable 
 with gross negligence. Davis v. Hatcher, N. S. x. 519. 
 
 68. Where a party authorizes another to sign an official bond for him as 
 surety, provided it is also signed by certain others, and it is never signed 
 by such others, he will not be bound. Bagot v. Slate ex rel. Dennison, N. S. 
 X. 749. 
 
SURETY. 887 
 
 69. tTnreaaona'ble delay or bad faith on the part of a creditor to enforce 
 securities against the principal, upon request of the sureties, will be a de- 
 fence by the latter, to the extent the securities may depreciate. Black River 
 Bank y. Page. N. S. x. 800. 
 
 TO. A surety who has been discharged by an extension of time, given 
 without his knowledge, does not become liable by accepting an indemnity 
 against his liability, nor by afterwards surrendering such indemnity. Riiten- 
 house V. Kemp, N. S. xii. 600. 
 
 71. What acts constitute fraud to discharge surety, see Fraud. 
 
 li. The mere omission of'a creditor to sue the principal debtor, does not 
 discharge a surety; but where the creditor has the means of satisfaction, 
 either actually or potentially, in his hands, and does not retain it, the surety 
 is charged. Richards v. The Oomnwnwealth, N. S. i. 565. 
 
 73. Where a collateral security had been pledged by a mother for the debt 
 of her son, which debt was a note drawn by the son and endorsed by anotliev, 
 who was part owner of a steamboat with the son, and in a suit between the 
 creditor and the mother in regard to the collateral, the creditor released the 
 endorser to make him a witness. Held, that the release of the endorser 
 released the collateral security for the debt. Denny y.Lyon, 0. S. ix. 626. 
 
 III. Rights of the Surety against his Principal. 
 
 74. If a surety signs and delivers to his principal an instrument perfect 
 upon its face, with a condition that it shall not be delivered to the obligee, 
 payee, or grantee, until some other persons who are agreed upon shall also 
 execute the same, and the principal delivers the instrument without regard 
 to the condition, and the obligee, payee, or grantee has no knowledge of the 
 condition, the delivery will bind the surety. Deardorf v. Foresman, N. S. v, 
 539. 
 
 75. A. executed his promissory note, payable to the order of B., and in- 
 duced C. and D. to sign the note as sureties, and redeliver it to him. A., upon 
 the promise that he would procure other persons, named by them, also to exe- 
 cute said note. In disregard of his promise, A. delivered the note to B. 
 without procuring the additional sureties agreed upon. Held, that the de- 
 livery to B. was absolute, and that the sureties were liable, without regard 
 to the condition. Id. 
 
 76. Where a surety signs upon the assurance that the principal will also 
 procure two other persons specified, to sign the bond before he delivers the 
 same, which he fails to do, but this is wholly unknown to the obligee at the 
 time he accepts the bond, such surety is bound to perform the obligation. 
 York County Ins. Go. v. Brooks, N. S. iii. 399. 
 
 77. Where the third surety upon a bond signs under the belief that the 
 former signatures are genuine, but one of them is, in fact, forged by the 
 principal in the bond, who erases such forged signature before he delivers 
 the same to the obligee, who is wholly ignorant of these facts at the time, 
 sucn surety cannot defend against the obligation. Id. 
 
 78. A surety who--has not obtained a judgment against his principal in hi3_ 
 life-time, nor obtained an allowance of the claim against his estate, cannot 
 maintain a bill to set aside a conveyance made by the principal, on the 
 ground that it was fraudulent as to creditors. Mugge v. Ewing,li. S. xi. V2.1. 
 
 79. A surety is bound with his principal as an original promissor, and his 
 obligation to pay is equally absolute ; he is held ordinarily to know every 
 default of his principal, and cannot protect himself by the mere indulgence 
 of the creditor or by the want of notice of the default of the principal, how- 
 ever much such indulgence or want of notice may, in fact, injure him. Mc- 
 Millan V. Bull's Head Bank, N. S. x. 431. 
 
 80. To discharge, creditor must do some act to deprive himself of right of 
 proceeding at law against principal. Ruclcer v. Robinson, N. S. vi. 255. 
 
 81. Note of principal and surety may be set-off against a note due princi- 
 pal alone. Andrews t. Yarrel, N. S. v. 702. 
 
 82. The order of signing a note by the makers, creates no presumption of 
 the relation ol' principal and surety. Summerhill v. Tapp, N. S. xiv. 392. 
 
 83. An accommodation endorser who takes a mortgage from principal, con- 
 ditioned to save harmless and pay all money endorser compelled to pay, is 
 entitled to the beneiit of such mortgage, if he has to pay the notes at matu- 
 rity to save protest. Nat. State Bank v. Davis, N. S. xiv. 62. 
 
888 SUEETY. 
 
 84. Payment by the principal, of the notes, with the endorser's money, is a 
 payment by endorser. Nat. State Bank v. Davis, N. S. xlv. 62. 
 
 85. One of two sureties who has paid half the debt, cannot have an order 
 directing the sheriff to levy an execution issued for the residue, upon the co- 
 surety's property. Schooley v. Fletcher, N. S. xiv. 62. 
 
 86. Only a surety who has paid more than his share, is entitled to contri-' 
 bution. Id. 
 
 87. An agreement to extend time of payment in consideration of an in- 
 creased rate of interest, if made without surety's consent, discharges him. 
 Huff^. Cole, N. S. xiv. 62. 
 
 88. An agreement endorsed on a note to pay an increased rate of interest 
 thereafter, if made by principal only, and without the surety's consent, does 
 not of itself change the contract evidenced by the face of the note. Id. 
 
 89. An agreement to continue to pay the same rate specified in the note, 
 even if above the legal rate, is not a consideration for a promise lo extend 
 time, and will not discharge a surety. Abel v. Alexander, N. S. xiv. 63. 
 
 90. Acceptance of interest in advance is such a consideration for promise 
 of forbearance, for time the interest is so paid, as will discharge surety. Id. 
 
 91. An extension until "summer" means the first day of June; courts 
 take judicial notice of the seasons. Id. i 
 
 92. Is not discharged by a contract of his principal, which does not place 
 him in a different position. Boach v. Summers, N. S. xiv. 199. 
 
 93. Taking a mortgage to secure the payment of a note which has matured, 
 does not suspend the remedy on the note, and therefore does not discharge 
 the surety. Brengle v. Bushey, N. S. xiv. 263. 
 
 94. A surety on a lease who notifies the landlord before the expiration of a 
 year, that he will not be bound beyond the current year, will not be liable if 
 tenant holds over. PleasantorC s Appeal, N. S. xiv. 263. 
 
 95. A surety cannot at will discharge himself from his contract. Id. 
 
 96. The equitable right of a surety to subrogation, only goes so far as is 
 necessary for his protection. Matter of Attachment against Hewitt, N. S. xiv. 327. 
 
 97. Mere delay by a creditor to enforce his legal remedies does not dis- 
 charge a surety. Summerhill v. Tapp, N. S. xiv. 392. 
 
 98. A purety who signs a bond in blank cannot, in a suit on the bond, set 
 up a private understanding he had with the principal as to the filling up of 
 the blanks. Butler v. United States, N. S. xiv. 521. 
 
 99. A special act of the legislature, giving time to a particular tax-collector 
 to collect and account for the taxes, operates to release his sureties. Johnson 
 V. Backer, N. S. xiv. 730. 
 
 IV. Or Sureties on Official Bonds. 
 
 100. Liability of surety of a teller of a bank for a default, when teller is 
 already a defaulter at time of bond entered. Wayne v. Bank, N. S. vi. 631. 
 
 101. When default of principal forfeits the bond as to him, it does so, as to 
 surety. Id. 
 
 102. When bond perfect and unconditional upon its face cannot be avoided 
 by sureties on ground that they signed the same upon certain conditions. 
 State V. Feck, N. S. vi. 575. 
 
 103. Admissions of principal as evidence against. Bankr. Smith, N. S. vi. 511. 
 
 104. Liability of, upon a several bond with others. Id. 
 
 105. When interest on penal sum may be added by way of damages, as 
 against surety. Id. 
 
 106. The sureties of the recorder of deeds are not liable for false searches. 
 Comm'th V. Sarmer, N. S. v. 214. 
 
 107. Sureties of administrator are liable on the bond, although he be im- 
 properly appointed, if he acts under his appointment. Shalter and Ebling'a 
 Appeal, N. S. ii. 634. 
 
 108. A surety signed a sheriff's official bond without knowing the contents. 
 Held, that such surety was not released by the fact that one of the signatures 
 below his was forged. The State v. Pepper, N. S. viii. 665. 
 
 109. Surety in replevin bond who takes possession of property, hag no 
 better rights than plaintiff in the suit. Eeyser v. Stien, N. S. viii. 576. 
 
 110. The sureties of a cashier are liable for default made after the' execu- 
 tion of their bond although the bank may have published account of its 
 affairs. Chaves v. Lebanon National Bank, N. S. xiii. 617. 
 
SUEETY— TAXATION. 889 
 
 111. The receipt by a surety of a note from the principal after he has 
 paid Ms-liabirtly will not extinguish the surety's claim on a note of a thii-d 
 person which the principals had previously given him as indemnity. Finney 
 V. Kingston, N. S. xiii. 647. 
 
 112. If a mortgage is given to secure the payment of notes of the wife's 
 son, and they are extended without consideration, this does not discharge 
 the wife, if she were surety. Zane y. Kennedy, N. S. xiii. 4U4. 
 
 113. Surety is not discharged by a notice to the holder to sue the principal 
 debtor unless the notice is clear. Shimer v. Jones, N. S. iv. 308. 
 
 114. Married woman surety is entitled to such notice. Id. 
 
 115. Surety of the treasurer of a corporation during his continuance in 
 office, &o., is not liable for default after omission to re-elect the treasurer. 
 Lexington S. R. Co. y.Elwell, N. S. iv. 309. 
 
 SURETY OF ADMINISTRATOR. 
 
 Liable for assets in hands of adm'r, as per account filed, without regard 
 to question whether they had been previously wasted by the adm'r. 0. S. 
 i. 375. 
 
 SURETY OF TAX COLLECTOR. 
 
 It is no bar to an action against the surety of a tax collector, that at tlie 
 time of his appointment hcwas in default as collector for a previous year. 
 Borland v. Washington Co., 0. S. i. 251. 
 
 SURGEON. 
 
 1. Services of — action for — defence for unskilfulness. Norton \.Winscoit, 
 0. S. i. 699. 
 
 2. There is an implied obligation on a person professing to practise as a 
 surgeon that he should possess the ordinary skill of the profession. Wilmot 
 V. Howard, N. S. vi. 774. 
 
 3. Where, by improper treatment of a surgeon, the patient must have a 
 defective arm, the surgeon is liable, although the negligence of those in charge 
 of the patient aggravated the case. Id. 
 
 SURRENDER. 
 
 Of fugitive. See Constitutional Law. 
 
 SURROGATE. 
 
 The surrogate, in respect to minors residing in his county, has the same 
 extent of authority as to the appointment of guardians as was possessed by 
 the late Court of Chancery of New York state. In re Dawson, an Infant, 0. 
 S. iv. 241. 
 
 SURVIVING RELATIVES. 
 
 In an action by surviving relatives for death caused by negligence, the 
 measure of damages is the pecuniary loss merely. Telfer v. N. R. R. Co., N. 
 S. iii. 665. 
 
 SURVIVORSHIP. 
 
 Presumption of. Subject discussed, 0. S. iii. 489. 
 
 SWAMP LANDS. 
 
 Character of the grant by Congress to Illinois — policy of the state — 
 rights of purchasers, &c. Supervisors v. Burchell, N. S. iii. 631. 
 
 TALFOURD. 
 
 Mr. Justice — biographical sketch of, 0. S. ii. 513. 
 
 TALISMEN. 
 
 When they may be called. See Criminal Law. 
 
 TAVERN-KEEPERS. 
 
 Certain games of chance forbidden by statute to be played in taverns — 
 definition of games of chance. 0. S. i. 57. 
 
 TAXATION. 
 
 I. FOK WHAT PUBPOSES TaXES ARE LEVIABLE, AND HEREIN OF THE DISTINCTION 
 BETWEEN THE RiOHT TO LeVT TaXES AND THAT OF EMINENT DOMAIN. 
 
 1. The act of taxation is a recognition of the legal status of the corporation 
 taxed. Erie Railway ■ Co. v. New Jersey, N. S. iv. 238. 
 
890 TAXATION. 
 
 2. Money raised by a county by taxation is not the private property of the 
 county. State t. County Court, N. S. iv. 120. 
 
 3. Sales by bankers for their own account, not subject to duties. United 
 States V. Fisk, N. S. v. 565. 
 
 4. Sales by brokers for their own account, are subject to duty. United 
 States T. Cutting, N. S. v. 565. 
 
 5. The 41st section of the National Banking Act of June 3d, 1864, separating 
 the shares, became a law of the property, and every state within which a 
 national bank was located acquired jurisdiction for the purpose of taxation. 
 Tappan, Collector v. Merchants' National Bank, N. S. xiii. 713. 
 
 6. Where a judgment existed against a municipal corporation, having no 
 property subject to sale, and whose duty it was to levy and collect a special 
 tax to pay the judgment, and where the corporation was without officers, 
 and would not though having the power, supply itself with officers, the 
 court appointed its marshal to assess, levy, and collect the requisite tnx : 
 but suspended the order so as to allow the corporation to reorganize and 
 itself collect the lax. Welch v. St. Genevieve, N. S. x. 612. 
 
 7. Powers to levy taxes to pay judgments discussed, and herein of special 
 taxes and of the rights of judgment-creditors. Note to United States y. Bur- 
 lington, N. S. ii. 398. 
 
 8. The doctrine of eminent domain is strictly applicable only to the con- 
 demnation of property, and not to the collection of a tax. Howard v. St. Clair 
 Drainage Co., N. S. ix. 718. 
 
 !). Where the legislature made it the duty of the city council to levy and 
 collect a tax for a specified purpose, such direction is mandatory, and it be- 
 comes the duty of the city to levy such tax, which duty may be enforced by 
 mandamus. Graham v. The City of Maysville, 0. S. vi. 589. 
 
 10. The doctrine of the implied exemption of Federal instrumentalities 
 from state taxation considered, and applied to this corporation, and the re- 
 sult reached that it is not such an instrumentality, and if, in any case, it is 
 such, that the paramount rights of the government would not be affected, and, 
 under the Acts of Congress, could not be injured by any subordinate right of 
 the state to tax and sell the property of the corporation. Union Pacific Bail- 
 road v. Lincoln Co., N. S. x. 458. 
 
 11. Under the legislation of Nebraska, the county of Lincoln has the right 
 to tax railroads in the adjoining territory attached to it for revenue pur- 
 poses. Id. 
 
 12. The bonds of a corporation in Missouri, belonging to a non-resident 
 intestate, when held by an administrator in the state, are subject to taxation. 
 State, S;c., Lee's Adm'x v. St. Louis Co., N. S. x. 606. 
 
 13. A tax paid under an order of a county judge, requiring the same to be 
 paid with costs, and an execution directed to issue therefor, is not, in a legal 
 sense, a voluntary piiyment. Bailey v. Bziell et al., N. S. x. 606. 
 
 14. If the assessment is illegal, a tax may be recovered from the assessors. 
 Id. 
 
 15.' Assessors are liable in an action for an erroneous assessment of a per- 
 son not an inhabitant of the town. Id. 
 
 16. Chapter 124 of the laws of 1869 of Kansas, providing for tbe assess- 
 ment of railroad property, is neither unconstitutional nor void. Missourili., 
 F., S. and G. Railroad v. Morris, Treas., N. S. i. 607. 
 
 17. Irregularities in the assessment will not render the tax void. Id. 
 
 18. A court of equity will not set aside the tax, nor grant an injunction to 
 restrain its collection. Id. 
 
 ' 19. A sale for taxes for a year, for which the taxes were paid, is invalid. 
 Raynor v. Lee, N. S. x. 607. 
 
 20. The collector is not personally liable for taxes erroneously assessed 
 and levied. St. Louis Mtitual Life Ins. v. Charles, N. S. x. 750. 
 
 21. A tax-payer, having no other interest, cannot maintain bill in equity 
 against the public authorities to prevent acts claimed as illegal. Tifft v. City 
 of Buffalo, N. S. xiii. 127. 
 
 22. But if he sustains some specific injury, he may maintain an action in 
 his own name. The People ex rel. Akin v. Morgan, N. S. xiii. 128. 
 
 23. A tax on "bowling alleys," and on venders of merchandise, and all 
 other places of business or amusement, does not authoi-ize a tax on mer- 
 chants, bankers, and brewers. Butler's Appeal, N. S. xiii. 622. 
 
TAXATION. 891 
 
 24. Legislative power of, may be delegated to a municipal corporation — 
 Legislature ra&j exempt classes of property as well as classes of persons. 
 Butler's Appeal, N. S. xiii. 522. 
 
 25. A profit upon the capital passed to the stockholders is the measure of 
 the state tax on dividends. Com. v. P., F. W. ^ G. Railway Co., N. S. xiii. 717. 
 
 26. If a dividend is declared, the stock is taxable, whether the dividend be 
 earned or not. Id. , 
 
 27. A nominal increase of shares, without transferring anything to the 
 stockholders, is not a dividend. Id. 
 
 28. An option to the stockholders of taking for each share the sum of $40 
 of the capital stock, upon payment of $4 for each share, is not such a stock 
 dividend as is liable to taxation. Com. v. Erie ^ Pittsburgh R. R., N. S. xiii. 717. 
 
 29. It is not a presumption that an increase of stock is a stock dividend ; it 
 is a question of fact for the jury. Id. 
 
 30. It is for the legislature to determine what property, real or personal,, 
 shall be subject to, and what shall be exempt from, taxation. Brick Co. v. 
 Inhabitants of Brewer, N. S. xiii. 735. 
 
 31. Exemption of property from taxation is the imposition of increased 
 taxation upon tlie non-exempt property. Id. 
 
 82. The legislature cannot constitutionally transfer to municipal corpora- 
 tions the power of determining upon wliat property, real or personal, taxes 
 shall, and upon what they shall not, be imposed. Id. 
 
 33. Where the constitution of the state requires taxes, voted by the legisla- 
 ture, to be assessed upon all taxable property in the town, or district, sub- 
 ject to the tax, ratably, or in proportion to the value of the estate, or in any 
 other similar manner, it is not competent for the legislature, with the assent 
 of towns, where real estate is situated and liable to taxation, to provide, even 
 by a general law, applying to the whole state, that manufacturing establish- 
 ments, going into operation after the date of the statute, and the consent of 
 the town, together with the capital invested in such establishments, shall be 
 exempt from taxation, while other similar establishments, already existing in 
 such towns, remain subject to such tax. Such exemption is, virtually, the levy 
 of au increased tax upon all the taxable estate in the town, and to that extent 
 depriving the owner of its value, without any equivalent benefit, either di- 
 rectly or indirectly. Id. 
 
 34. It is essential to all just taxation that it be levied with equality and 
 uniformity. Id. 
 
 35. A tax for a private purpose is unconstitutional, and a statute imposing 
 it is void. A public use or purpose is essential to the idea of a tax. Whiting 
 V. Sheboygan R. R. Co., N. S. ix. 156. 
 
 36. The rights of taxation and of eminent domain are separate and distinct 
 rights, and the public use sufBcient to support legislation for one purpose, is 
 not necessarily sufficient to support it for the other. Id. 
 
 87. The public use, which justifies the exercise of eminent domain, con- 
 sists in the possession and enjoyment of the land itself by the public or pub- 
 lic agencies, and not in the mere incidental advantages that may accrue to 
 the public from the enterprise. Id. 
 
 88. The possession by the public, which constitutes the public use, in the 
 case of railroads and similar corporations, in whose favor the right of emi- 
 nent domain has been exercised, consists in the fact that the corporation 
 must perform its duties for the public on tender of the proper compensation, 
 and the fact that the state retains the right to control the franchise and limit 
 the tolls to be charged. Id. 
 
 39. But such a qualified and limited public use will not support taxationl'ov 
 the sole and direct benefit of the corporation. Id. 
 
 40. Therefore, a statute levying a tax for the sole purpose of making a 
 direct gift of the money raised to a mere private railway, in which the state 
 or the tax-payers have no ownership, is unconstitutional. Id. 
 
 41. If a tax is imposed upon a county, or other limited portion of a state, 
 it must be, not only for a purpose public as regards that county, but also 
 local ; and by local is meant that it must give the county such special and 
 peculiar benefits as amount to compensation for the special burden laid upon 
 it. Qarrard Co. Court v. Navigation Co., N. S. x. 151. 
 
 42. The improvement of a navigable river cannot be considered (at least 
 under the circumstances of this case), as such, a local benefit to the people of 
 the counties bordering on it. Id. 
 
892 TAXATION. 
 
 43. The distinction between navigable rivers and other highways for pur- 
 poses of local taxation, discussed by Hakdin, J. Garrard Co. Court v. Navi- 
 gation Co., N. S. X. 151. 
 
 44. Even if it be conceded that the legislature may lease a public improve- 
 ment (as e, g. the navigation of the Kentucky river) to a private corporation, 
 and authorize the adjoining counties to subscribe and tax the people to pay 
 for stock in such corporation, yet it cannot authorize the imposition of a tax 
 on such counties to pay even in part the rent reserved from such corporation 
 to the state. Id. 
 
 45. Where a statute has in view a single object, and one of the means pre- 
 scribed, and without which the object cannot be accomplished, is void as be- 
 yond the power of the legislature, the whole statute must fail. Id. 
 
 46. The legislature of the state Las no power to puss a law authorizing a 
 town to raise money either by taxation or issuing its bonds, and loan the same 
 to private parties, to enable them to erect mills and manufactories in such 
 town, thereby to increase its wealth and business, as well as the accommoda- 
 tion of its inhabitants. Such an object is entirely a private one, and in no 
 sense entitled to be called a public use of such a character as to justify the 
 imposition of taxes upon the inhabitants and property of a town by the vote 
 of the majority of such town. Allen v. Inhabitants of Jay, N. S. xii. 481. 
 
 47. The minority of the inhabitants in such case may lawfully demand for 
 their pi-otection the interposition of this court by way of injunction. Id. 
 
 48. License fee for selling in market is not a fax. Ash v. People, N. S. ii. 696. 
 
 49. Under the constitution of Illinois, the right of taxation cannot be 
 granted either to private persons or private corporations. Harward v. Si. 
 Clair Drainage Co., N. S. ix. 712. 
 
 50. The power of municipal corporation to levy taxes in aid of a private 
 corporation. Clark v. The City, 0. S. v. 289. 
 
 51. It is a fundamental principle in the law of taxation that taxes must be 
 laid for a public, and not a mere private, purpose. The Feople v. Township 
 Board, N. S. ix. 487. 
 
 52. A statute authorizing the levy and collection of a tax to aid railway 
 companies in the construction of their roads, violates this fundamental prin- 
 ciple, and is void. Id. 
 
 53. A statute which undertakes to confer upon a majority of the voters of 
 a township authority to vote a tax, the proceeds of which are to be given to 
 railway corporations, to aid in construction of roads to run through the town- 
 ship, is not an enactment authorized by the taxing power of the state. Id. 
 
 54. The nature and extent of the taxing power, and the limitations upon 
 it, discussed by Cooley, J. Id. 
 
 II. What may be Taxed, and herein of the Power to Levy Taxes; how 
 Far it may be Delegated, and the Effect of a Vote of the People 
 Taxed. 
 
 55. It is the general policy of the law to avoid double taxation, and this 
 consideration is of weight 'in determining the construction of statutes impos- 
 ing it ; but where their meaning is clear, the courts cannot hold such taxation 
 illegal. Toll-Bridge v. Osborn, N. S. ix. 73. 
 
 56. A corporation was chartered in 1796, to build and maintain a toll- 
 bridge, with power, "for the purpose of carrying the resolve into effect," to 
 purchase and hold lands not exceeding one hundred acres. The company 
 biiilt the bridge, and soon after purchased a large quantity of mud flat ad- 
 j oining the bridge, and erected wharves upon a portion of it, which became of 
 great value and were profitably rented. An act passed in 1847, provided that 
 the real estate of any private corporation, " above what was required and 
 used for the transaction of its appropriate business," should be liable to be 
 assessed and taxed to the same extent as if owned by an individual. Held, 
 that the real estate thus used by the company for wharves was liable to tax- 
 ation under the statute. Id. 
 
 57. Such a use of the real estate which the company was authorized to 
 purchase and hold, was not contemplated or authorized by its charter. Id. 
 
 68. And the question, as to what rights the company might have acquired 
 by prescription, did not properly arise, inasmuch as the charter, on which 
 the company itself relied, showed clearly what was its appropriate business, 
 and this was the sole question in determining the liability of the property to 
 taxation. Id. 
 
TAXATION. 893 
 
 59. The charter provided that, the bridge, and all property owned by the 
 company appurtenant thereto, should be considered personal estate and di- 
 vided into shares. Held, that this provision related to the property of the 
 stockholders as represented by the shares, and not to the property of the 
 corporation itself in its relation to other parlies, and that the property in ques- 
 tion was therefore taxable as real estate. Toll-Bridge v. Osborn, N. S. ix. 73. 
 
 60. Goods imported from a foreign country, upon which the duties and 
 charges at the custom-house have been paid, are not subject to state taxation 
 whilst remaining in the original oases, unbrolien and unsold, in the hands of 
 the importer, whether the tax be imposed upon the goods as imports, or upon 
 the goods as part of the general property of the citizens of the state which 
 is subjected to an ad valorem tax. Low v. Austin, N. S. xi. 366. 
 
 61. Goods imported do not lose their character as imports, and become in- 
 corporated into the mass of property of the state until they have passed 
 from the control of the importer, or been brolien up by him from their orig- 
 inal cases. Id. 
 
 62. Farm, divided by a county line, taxable in the county where mansion- 
 house is located. Bausman v. Lancaster, N. S. v. 383. 
 
 63. When a party has a general deposit of current funds in a bank, and 
 on the 28th day of February gives a check for such funds payable in legal- 
 tender notes, and notes of that character are handed to him, and he makes 
 a special deposit of such notes in the same bank, and three days afterward 
 changes his special deposit of legal-tender notes into a general deposit of 
 current funds, and where the whole transaction is for the sole and express 
 purpose of escaping taxation on such deposit. Held, that as to the govern- 
 ment, the transaction was void, and the actor not entitled to the intervention 
 of the courts to be relieved from the taxes imposed on such deposits. Mitch- 
 ell V. Leavenworth Co., N. S. xi. 626. 
 
 64. An assessment of a tax in St. Louis, against a lot, is not vitiated by an 
 error in respect to the ownership thereof. City of St. Louis v. De Noui, N. 
 S. viii. 383. 
 
 65. The income tax of two per cent, under the Act of February, 1865, is 
 not in violation of the constitution. Glasgow v. Rowse, N. S. viii. 383. 
 
 66. In the absence of legislation on the subject, a corporation will not be 
 exempted from state taxation merely because it is employed by the United 
 States. Thompson v. Pacific R. R., N. S. ix. 576. 
 
 67. The right of the states to tax the shares of the national banks re- 
 afiBrmed. National Bank v. Commonwealth, N. S. ix. 452. 
 
 68. This is true, although the tax is collected of the bank instead of the in- 
 dividual stockholders. Id. 
 
 69. Vote to sustain a school not equivalent to a vote to defray the expenses 
 of that school by a tax on the grand list. Adams v. Crowell, N. S. vii. 576. 
 
 70. Loans of railroad corporations are subject, in Pennsylvania, to a three- 
 mill tax upon the principal of the loans, though they be owned by a citizen of 
 another state. Maliby v. Railroad Co., N. S. v. 479. 
 
 71. It is the duty of the corporation officers to retain the tax from the ac- 
 cruing interest, whether it be payable on coupons or otherwise. Id. 
 
 72. Such loans are property, in a taxable sense, in Pennsylvania, and the 
 Acts of Assembly imposing the tax and regulating the mode of its collection 
 are constitutional and valid. Id. 
 
 73. United States stocks and bonds are subject to a state collateral inherit- 
 ance tax, like other property in similar circumstances. Penna. v. Strode, N. 
 S. V. 435. 
 
 74. There is no objection to a state tax upon the owners of shares of stock 
 in national banks, in common with other property in the state. And in esti- 
 mating the value of such shares for purpose of taxation under state laws, it 
 is not requisite to deduct that portion of the capital or property of such 
 bank which is invested in United States stocks. The tax in such cases is an 
 assessment upon the person of the owner, with regard to property, and in no 
 sense a tax upon the bank or its capital. Parker v. Siebern, N. S. v. 526. 
 
 75. Of national banks, considered. Note to Id., 532. 
 
 76. The interest of the general government in the Union Pacific Kailroad 
 Company, though chartered and aided by Congress, is not such as to exempt 
 the company and its property from taxation by a state through which the 
 
894 TAXATION. 
 
 road is located and operated. Union Pacific Railroad t. Lincoln Co., N. S. x. 
 458. 
 
 77. Under the statute of 1869 of New Hampshire all deposits and accumu- 
 lations in savings banks are to be taxed. Rockingham Ten Cents' Saving Bank 
 V. Portsmouth, N. S. xii. 535. 
 
 78. Real estate purchased with the accumulations and deposits is not sub- 
 ject to taxation as real estate, where it is located. Id. 
 
 79. It is a fundamental principle, that the same property shall not be liable 
 to a double tax in the hands of the same party. Id. 
 
 80. United States loans, when subject to state taxation. The People v. The 
 Commissioners of Taxes, N. S. i. 81. 
 
 81. If the state has the power to levy and collect a tax or assessment, to 
 be paid to a railroad company as a compensation for the relinquishment of 
 certain rights, it has the power to direct the transfer of the assessment, col- 
 lectively, to the same company, for the same purpose, before its payment. 
 People V. Lawrence, N. S. i. 571. 
 
 82. Town has no right to money improperly collected by taxation from its 
 tax-payers. Gailor v. Herrick, N. S. iv. 122. 
 
 83. Street railroad company is not taxable for horses used in its business. 
 Middlesex Co. v. Gharlestown, S. S. iv. 117. 
 
 84. When property near a city becomes taxable by it. Fulton v. Davenport, 
 N. S. iv. 444. 
 
 85. The charge of four cents a pound for trading in cotton, prescribed by 
 the Act of July 2, 1864, was not a tax ; it was a condition. Hamilton v. Dillin, 
 N. S. xiv. 454. 
 
 86. Tax may be assessed upon whole amount of the deposits of a savings 
 bank. Comm'th v. Savings Ins., N. S. vi. 511. 
 
 87. Shares in national banlcs can be taxed for state, county, or municipal 
 purposes. Bradley v. The People, N. S. vi. 466. 
 
 88. Cannot tax dividends by domestic corporations due non-resident own- 
 ers. Oliver V. Washington Mills, N. S. vi. 58. 
 
 89. License is only, a mode of taxation, and does not give any authority to 
 carry on business contrary to the laws of a state. License Tax Cases, N. S. 
 vii. 123. 
 
 90. Wood, timber, &c., distributed along the line of a railroad for present 
 use are part of it for purposes of taxation. R. R. Co. v. Prescott, N. S. vii. 255. 
 
 91. Power of Congress over taxation of shares in national banks. People 
 T. Assessors of Barton, N. S. v. 388. 
 
 92. A city council has no power to levy taxes not expressly authorized by 
 its charter or tlie law. United States ex rel. Learned v. Burlington, N. S. ii. 394. 
 
 93. Municipal corporation cannot raise money by taxation for the purpose 
 of executing a trust. Sargent v. Cornish, N. S. xiv. 324. 
 
 94. Assessment under city ordinance, not made in conformity therewith, 
 is illegal and void. In Matter of Tuofler's Petition, N. S. v. 381. 
 
 95. An act, making notes of United States a legal tender for debts, has no 
 reference to taxes imposed by state authority. Lane County v. Oregon, N. S. 
 viii. 251. 
 
 96. A court cannot pronounce a tax unconstitutional on the mere ground 
 of injustice and inequality. Weber v. Reinhard, N. S. xiii. 522. 
 
 97. The legislative power of taxation may be delegated to a municipal cor- 
 poration. Butler's Appeal, N. S. xiii. 522. 
 
 98. The state cannot take, by any process of taxation, the money of an 
 individual citizen, for purposes of local conveniences. Park Commissioners v. 
 Common Council, N. S. xiii. 524. 
 
 99. Poor-house not taxable for school purposes in Pennsylvania. Directors 
 of Poor V. School Directors, N. S. ii. 448. 
 
 100. The city cannot create a nuisance upon the plaintiff's lots, and then 
 tax him for abating it. Weeks v. The City of Milwaukee, 0. S. viii. 625. 
 
 101. The exemption of the Newhall House (a large hotel) from taxation, 
 by the common councils, was without authority of law, and vitiates the entire 
 tax for the year of such exemption. Id. 
 
 102. Tax can only be levied when authorized by law. The City y. Auditor 
 of Muskingum Co., 0. S. iv. 767. 
 
 103. Power of state over taxation of land. Witherspoon v. Duncan, N. S. 
 vi. 445. 
 
TAXATION. 895 
 
 104. Lands entered at land office, liable to, and may be sold for. Wither- 
 spoon V. Duncan, N. S. vi. 445. 
 
 105. Blight to tax attaches to donation entries. Id. 
 
 106. Taxation of business of foreign company une(jually with the domestic 
 companies, see Coepouation, 857. 
 
 107. Income tax due from the estate on which it was assessed, though it 
 was a life estate and tenant died before the end of the year. Holmes v. 'Vaber, 
 N. S. iv. 612. 
 
 III. PUOOEBDINGS FOR THE ASSESSMENT AND COLLECTION OP TaXES. 
 
 108. Though a tax-payer cannot maintain an action to restrain the collec- 
 tion of a tax, he is entitled to a certiorari to review the proceedings of the 
 assessors. The People ex rel. Aikin v. Morgan, N. S. xiii. 128. 
 
 109. Mandatmis to compel auditor to levy. The Citi/ v. Auditor of Muskin- 
 gum Co., 0. S. iv. 767. 
 
 110. The legislature of Illinois cannot delegate the power to. impose cor- 
 porate taxation to any authority other than the corporate authorities of 
 cities. People ex rel, v. Mayor of Chicago, N. S. ix. 642. 
 
 111. The legislature of Illinois has power to create special taxation dis- 
 tricts for municipal purposes. People ex rel.Wilson' v. Salomon, N. S. ix. 6J3. 
 
 112. Several towns may be united in one district, for the special purpose 
 of establishing and maintainiag a public park. Id. 
 
 113. The constitutional provisions securing "trial by jury," and "due 
 process of law," do not apply to proceedings for the assessment and collec- 
 tion of public revenue or the exercise by government of political rights. Id. 
 
 114. Tfixes take precedence of all other demands, and look to the thing 
 and not the ownership. Dunlap v. County of Gallatin, 0. S. iii. 638. 
 
 115. The state is not bound to wait until the estate of decedent is adminis- 
 tered. Id. 
 
 116. The remedy by distress is not exclusive. Id. 
 
 117. Tbe kind and character of irregularities in tax assessments which 
 invalidate them. Mills v. Oleason, 0. S. viii. 693. 
 
 118. An assessment to be valid, under the Texas statute, with a view of 
 collecting the taxes, must embrace a true description of the land, together 
 v?ith the name of the actual owner, whether resident or non-resident, and 
 such other descriptive matter as will apprise the owner that his land is about 
 to be sold for taxes. Tendo v. Wheeler, 0. S. iii. 306. 
 
 119. If a tax is legal in its reception, there is no limit to the power of the 
 legislature to provide for its collection. Litchfield y.McComber, N. S. iv. 319. 
 
 120. Liability of dowess for taxes assessed during the husband's life. Sub- 
 ject discussed, N. S. vii. 385. 
 
 IV. Duties and Powers of Assessoks. 
 
 121. Where an officer has power to assess generally, and the duty of deter- 
 mining what is within it is imposed upon him, if the thing assessed is in ils 
 nature in any circumstances capable of being brought within the law, an 
 erroneous decision in this regard does not render the proceeding void. 
 Pullan V. Kinsinger, N. S. ix. 557. 
 
 122. The 19th section of the Act of July, 1866, as amended in 1867, pro- 
 viding that no suit shall be maintained to restrain the collection of a tax, 
 applies to all cases where the proceedings are not nullities, however errone- 
 ous or irregular. Id. 
 
 123. "Corporate authorities " in the constitution, means those municipal 
 officers who are elected by the people sought to be taxed. Ilarward v. St. 
 Clair Drainage Co., N. S. ix. 712. 
 
 124. Assessors of real estate act in a judicial capacity, and must be gov- 
 erned by the evidence presented to them. The People v. American Thread Co., 
 N. S. xi. 459. 
 
 . 125. Where the only evidence is that of the owner, and it is uncontra- 
 dicted, it is conclusive. Id. 
 
 126. A collector who fails to restore the balance, after paying the taxes 
 out of a sale of distress, is a trespasser ab initio. Carter v. Allen, N. S. xi. 463. 
 
 127. An assessor of internal revenue has power to re-assess an income tax 
 where he is satisfied it isincorrect, although the party has paid the tax first 
 assessed against him. Doll v. Evans, N. S. xi; 315. 
 
 128. Where, the assessor finds the first return to be false or fraudulent, it 
 
896 TAXATION. 
 
 is his duty to add a penalty of one hundred per cent, on the second assess- 
 ment. Doll v. Evans, N. S. xi. 315. 
 
 129. If the supervisor of a township, in making the assessment of property 
 for taxation, shall fraudulently, and with a view to impose upon an indi- 
 vidual more than his just proportion of the public burden of taxation, assess 
 the property of such individual above its value, and relatively above the 
 other assessments on his roll, the party aggrieved may have an injunction 
 to restrain the collection of the excessive tax. Merrill v. Humphrey, N. S. 
 xi. 208. 
 
 130. Assessors not bound by a sworn return of property. Hall v. Commis- 
 sioners, N. S. V. 320. 
 
 131. A tax collector has no right to take money to pay taxes from a drawer 
 in a bank, without the consent of the ofiScers. National Bank of Sandy Hill 
 V. Fancher, N. S. viii. 384. 
 
 132. Certificates of indebtedness Issued by the United States for supplies 
 furnished to carry on the war, are exempt from state taxation. The Banks 
 y. The Mayor, N, S. viii. 447. 
 
 133. Assessors cannot assess shares in national bank under New York Act 
 of March 9th, 1865. People v. Assessors of Barton, N. S. v. 441. 
 
 134. Suit against tax collector in trespass jm. cl.fr., see Tkespass. 
 
 V. Remedies and Pbooeedings to Eesteain the Collection, and how fae Ee- 
 
 COTEKABLE BACK WHEN PaiD IN MISTAKE Oil WITHOUT OBJECTION. 
 
 135. Courts will not prevent the extension of boundaries of municipal 
 corporation, but will restrain taxation within the line where it ceases to be 
 beneficial to the proprietor in a municipal point of view. Fulton v. Haven- 
 port, N. S. iv. 444. 
 
 136. What bill to restrain collection of taxes, as a cloud upon the title, 
 must set forth. Conway v. Showerman, N. S. vi. 320. 
 
 137. A chattel belonging to A. cannot be levied upon for a tax due by B., 
 although it formerly belonged to B., and still remains in his possession. 
 Daniels v. Nelson, N. S. viii. 1 49. 
 
 138. A property-owner seeking to enjoin the collection of taxes on the 
 ground that the amount is excessive, should show by his bill, as near as may 
 be practicable, what amount is just, and what excessive, and he should pay 
 to the proper officer the amount which he concedes to be properly chargeable 
 against him. In the case of a personsil tax, a preliminary injunction should 
 not be awarded in such case except upon the terms that the whole amount in 
 dispute be paid into court, or proper security given for its ultimate payment 
 if it shall be decreed by the court; and in any other case, the officer allow- 
 ing an injunction has a discretion to require such security, which it may 
 sometimes be proper he should exercise. Merrill v. Humphrey, N. S. xi. 208. 
 
 139. He who seeks equity must do equity ; and he who, seeks to enjoin the 
 collection of an excessive tax, must be required as a condition of relief to pay 
 such an amount as is just. Id, 
 
 140. Where, therefoi'e, a bill was filed to restrain the collection of an 
 ' excessive tax, and the court found the tax to be excessive, and thereupon 
 
 made a decree perpetually enjoining the collection not only of the amount 
 that was excessive, but of the whole tax, it was held that the decree was 
 wholly unwarranted, and it was thereupon reversed. Id. 
 
 141. An action will not lie to restrain the collection of taxes, on the bare 
 ground of the assessment being illegal. Susquehanna Bank v. Board of Super- 
 visors, N. S. iii. 56. 
 
 142. A writ of error lies from the Supreme Court of the United States, to 
 the decision of a state court against a right, privilege, or immunity claimed 
 under the constitution. The Banks v. The Mayor, N. S. viii. 447. 
 
 143. A town summoned as trustee cannot apply tax due by the defendant 
 cestui que trust, to the payment of a debt which the- town owes said defendant. 
 Johnson v. Howard, N. S. viii. 638. 
 
 144. S. C. of N. Y. will not use its equity powers to stay assessment and 
 collection of a tax. Messeck v. Supervisors, N. S. vii. 637. 
 
 145. The payment of taxes can be enforced only by a warrant to the col- 
 lector, and not by suit at law, except where the collector has paid them, or 
 become responsible for them, when he may sue in his own name. Bouck v. 
 The Supervisors of Kittanning, 0. S. i. 125. 
 
TAXATION. 897 
 
 146. Remedies of person whose property is seized for a void or erroneous 
 tax. Macklot v. Davenport, N. S. iv. 447. 
 
 147. Certiorari to review assessments in New York. People ex rel. v. Con^' 
 missioners, N. S. v. 123. 
 
 148. When will not he allowed. Id. 
 
 149. One who pays without objection, to the tax collector of a borough, 
 faxes which are in part legal, and in part illegal, cannot recover back the 
 part illegally assessed. Borough of Allentown v. Saeger, 0. S. i. 436. 
 
 150. The payment of taxes illegally assessed, the land being liable to sale, 
 is not a compulsory payment. Swanston v. Ij'ams, N. S. xiv. 54. 
 
 VI. Sales of Real Estate ron Taxes, and or the Title thereon. 
 
 151. A tax sale is not a judicial sale. Beatty v. Mason, N. S. ix. 582. 
 
 152. Title of purchaser at tax sale of wild lands. Pierce v. Hall. N. S. iii. 503. 
 
 153. Equity will restrain a municipal corporation from selling land for 
 taxes illegally assessed. Leslie v. St. Louis, N. S. x. 602. 
 
 154. In Maine, in order to sustain a title under a tax deed from the county 
 treasurer, it must afiSrmatively appear that all the provisions of law have 
 been strictly complied with. Savage v. Holyoke, N. S. xi. 463. 
 
 155. Presumption of correctness of proceedings, will prevail in favor of 
 tax deed, unless evidence be given of facts inconsistent therewith. Wright 
 V. Dunham, N. S. v. 64. 
 
 156. Insufficient evidence to defeat. Id. 
 
 157. Where the owner of an unseated tract, lying partly in county S., 
 procures a survey, and returns to the county commissioners for taxation a 
 description of the land as 55" acres lying in S. county, part of a tract con- 
 taining 349 acres, the residue lying in N. county, with the warrantee's name, 
 and it is so assessed, and the taxes are paid for two years, and in the follow- 
 ing year the assessment is so changed in name and quantity that the owner, 
 seeking to pay the taxes, is unable to ascertain that the tract is faxed, and 
 therefore does not pay the tax, a sale for such taxes does not pass the 
 owner's title. Brettaugh v. Locust Mountain Coal Co., N. S. vii. 109. 
 
 158. A tax deed which does not show that the land was sold for delinquent 
 taxes is void upon its face. Hubbard ■v. Johnson, N. S. xii. 126. 
 
 159. Where land is sold under a tax law, it is necessary that every pre- 
 requisite in the statute should be strictly complied with, otherwise the pur- 
 chaser under the tax sale will take no title. Yendo v. Wheeler, 0. S. iii. 306. 
 
 160. A mere intruder cannot set up any objection to the validity of a tax 
 sale, on the ground of irregularities therein, however gross. Qusere. If he 
 could even take advantage of the fact of the actual payment of the taxes by 
 the original owner before sale, as against a purchaser without notice. Oram 
 V. Burke, 0. S. iv. 443. 
 
 VII. Redemption of Lands sold for Taxes. 
 
 161. Statutes authorizing the redemption of land sold for taxes are to be 
 construed favorably to the owners. Corbett v. Nutt, N. S. x. 206. 
 
 VIII. Taxation of Interstate Travel, and herein of Taxation of Cokpora- 
 
 TIONS created by DIFFERENT StATES. 
 
 162. A state law, laying a distinctive tax on the business of foreign cor- 
 porations doing business in a state, is unconstitutional. Erie Railway Co. v. 
 New Jersey, N. S. iv. 238. 
 
 163. Stock of a stockholder in a national bank, on the stock held by him, 
 is a legitimate subject for taxation, municipal and state. Ulica v. Churchill, 
 N. S. V. 122. 
 
 164. Where the city of Rochester had become subscriber to the stock of a 
 railroad. Held, the contract was void. The rights of eminent domain and 
 taxation considered. Freeman Clarke v. The City of Rochester, 0. S. v. 289. 
 
 165. Municipal bonds issued under special legislative authority to aid rail- 
 roads, are taxable as public stocks. Hall v. Commissioners, N. S. v. 320. 
 
 166. Taxation of interstate travel, subject discussed. N. S. x. 418. 
 
 167. By virtue of the joint legislation of the states of Pennsylvania and 
 New Jersey, a bridge was erected, by an incorporated company, across the 
 Delaware river at Trenton, where the river is navigable and the tide rises. 
 The corporate meetings of the said bridge company, its principal office, and 
 the great majority of its stockholders and directors had always been, and still 
 
 57 
 
;98 TAXATION. 
 
 continue to be, within the exclusive jurisdiction of New Jersey. TTnder the 
 Tax Acts of Pennsylvania, imposing taxes on the capital of "an institijtion 
 or company incorporated under any law of the Commonwealth," it was held, 
 first, that the said bridge was an institution or company incorporated under 
 the laws of Pennsylvania; second, that, inasmuch as only one-half the com- 
 pany's property was within the jurisdiction of Pennsylvania, one-half of its 
 capital stock alone could be there taxed. Fennsylvania v. Trenton Bridge 
 Company, 0. S. ix. 298. 
 
 168. Power of United States courts to compel assessment of. Commissioners 
 of Knox County v. Aipinwall, 0. S. ix. 347. 
 
 IX. Penalties fok Non-Payment of, and how fah Constitutionai,. 
 
 169. The Act of Congress which imposes an addition of one hundred per 
 centum to the tax, as a penalty tor the "return of a false or fraudulent list 
 or valuation," is constitutional. Doll v. Evans, N. S. xi; 315. 
 
 170. After a tax and the penalties which have accrued from its non-pay- 
 ment, have been repealed by statutes, the tax may he reimposed, but the 
 penalties cannot. Dixon-y. The Mayor of Jersey' Oily, N. S. xiii. 390. 
 
 171. Penalties may be imposed for future delinquencies. Id. 
 
 X. Op the Exemption fkom Taxation. 
 
 172. United States notes are exempt from state taxation. Sank v. Super- 
 visors, N. S. viii. 443. 
 
 173. Foreign goods sold by the shipper to a third person, while still on board 
 the ship, are not exempted from state taxation. Waring v. The Mayor, N. S. 
 ix. 56. 
 
 174. When repeal of an act, exempting s^amp lands from taxation, impairs 
 contract by the state. McGee v. Mathis, N. S. vi. 437. 
 
 175. A legislative concession embraced in the charter of a corporation, per- 
 petually exempting its property from taxation without a suiEcient corre- 
 sponding consideration yielded by the corporation, is revocable at the pleasure 
 of the state. Eowse v. T/tashington University, N. S. vii. 390. 
 
 176. The provision of the constitution of the state against taking pri- 
 vate property for public use without compensation, has no application to 
 the taking of property by taxation. Booth v. Woodbury, N. S. v. 202. 
 
 177. Where the plaintiff in action of debt is a non-resident, he will not be 
 required to pay the tax under the Act of 1870. McDonald v. Feagan, N. S. 
 xi. 336. 
 
 178. The Act of California, prohibiting immigrants (Chinese) from landing 
 until bond is given, &c., is in conflict with the Act of Congress declaring that 
 no tax or charge shall be imposed by any state upon any person immigrating 
 thereto from a foreign country which is not equally imposed upon every per- 
 son immigrating from any other foreign country. In the Matter of Ah Fong, 
 N. S. xiii. 761. 
 
 179. An agreement by which a state surrenders its power of taxation must 
 be clearly and unequivocally shown. North Missouri Railroad Co. v. Maguire, 
 N. S. xiv. 118. 
 
 180. The act of legislature of Missouri of February 16th, 1865, for the 
 completion of the North Missouri Railroad, is not such an agreement. Id. 
 
 181. The ordinance of April 8th, 1865, was a true exercise of the taxing 
 power of the state. Id 
 
 182. The aci of the Missouri legislature of December 25th, 1852, created a 
 contract not to tax the Pacific Railroad. Padfic Railroad v. Maguire, N. S. xiv. 
 119. 
 
 183. The ordinance of July 4th, 1865, levying a tax, impaired the obliga- 
 tion of the contract, and was void. Id. 
 
 184. The intention must be clear in order to exempt any particular prop- 
 erty from taxation. Freese, Pros. v. Woodruff, N. S. xiv. 263. 
 
 1 85. Bonds of a city issued under a special act, are not exempt by force of 
 a clause in the general charter, stating, " that bonds issued by the mayor, &o., 
 shall be free of taxes." Id, 
 
 186. An act taxing all railroads " doing business within the state," applies 
 to a railroad incorporated by another state, but having forty-five miles of its 
 road in the state which passed such act. Erie Railway Co. y. Pennsylvania, N. 
 S. xiv. 527. 
 
 187. An agreement by a state to exempt from taxation, must be clear and 
 unmistakable. Id. 
 
TAXATION— TELEGEAPH COMPANIES. 899 
 
 188. In sect. 2, art. 12, of the constitution of Pennsylvania, the word 
 ("public" is used in some instances to describe the ownership of property, in 
 others as merely descriptive of the use to which it is applied. Gerke, Treas- 
 urer V, Purcell, N. S. xiv. 753. 
 
 189. As applied to school-houses it is used in the former sense. Id. 
 
 190. The fact that the use of property is free is not a necessai-y element in 
 determining whether the use is public or not. Id. 
 
 191. A charity in a legal sense includes not only gifts for the benefit of the 
 poor, but endowments for the advancement of learning or encouragement of 
 science and art. Id. 
 
 192. Schools established by private donations and carried on for the bene- 
 fit of the public, are public charities. Id. 
 
 193. The constitution, in authorizing exemptions from taxation, has refer- 
 ence to property and the uses to which it is applied. Id. 
 
 194. The authority to exempt houses used exclusively for public worship, 
 carries with it the authority to exempt such grounds as are necessary for their 
 use. Id. 
 
 195. A parsonage does not come within the exemption. Id, 
 
 196. Constitutionality of acts for exempting property from. See The Oity 
 V. Auditor of Muskingum Co., 0. S. iv. 7G7. 
 
 197. Legislative right to grant perpetual exemption from, the subject dis- 
 cussed. N. S. i. 723. 
 
 198. Report as to power of the legislature to grant a perpetual exemption 
 from taxation, cases cited. N. S. i. 718. 
 
 199. A county collector of revenue who compulsorily collects taxes assessed 
 upon property exempt from taxation, where such exemption is apparent upon 
 the face of the tax-book, is liable (and so also are his sureties) on his official 
 bond for the amount of tax so illegally collected and received by him. State 
 v. Shacklett et al., N. S. v. 664. 
 
 200. Exemption on account of military service is a personal privilege not 
 extending to wife's property.. Crawford v. Burrell Township, N. S. vii. 126. 
 
 201. Act legitimating children of testator after devise to them has vested, 
 does not relieve from collateral inheritance tax. Comm'th v. Stump, N. S. vii. 
 61. 
 
 202. Exemption from state taxation of steamship company engaged in for- 
 eign commerce and carrying United States mails, Steamship Co, v. Commis- 
 sioners, N. S. vi. 719. 
 
 203. Stock in the public debt of the United States, whether owned by 
 individuals or by corporations, is taxable under the laws of the state. The 
 People V. The Commissioners of Taxes, N. S. i. 81. 
 
 TAX WARRANT. 
 
 Insertion of an improper item makes the warrant void only for the excess. 
 Cotton V. Beardsley, N. S. ii. 560. 
 
 TEACHER IN SCHOOL. 
 
 As to liability of, for inflicting corporal punishment. See Com, v. Cooke, 
 0. S. vii. 417. 
 
 TELEGRAPHS AND TELEGRAPH COMPANIES. 
 
 1. Whether a contract by telegraph has been made as in cases of communica- 
 tions by letter. Notes to Huntingdon v. Ogdensburg, ^c, R. R. Co., N. S. vii. 147. 
 
 2. Where a broker sent by telegraph an order for the purchase of gold, 
 which was never transmitted, he may sue and recover damages for breach of 
 contract. Telegraph v. Oildersleve, N. S. viii. 692. 
 
 3. Evidence that a telegram was sent to A., at a certain place, and an an- 
 swer received from the place, purporting to come from A., is not competent 
 that he was there. Sowley v. Whipple, N. S. ix. 514. 
 
 4. Telegraphic operator bound to testify to the contents of a message. 
 The State v. Utchfield, N. S. x. 876. 
 
 5. A condition exempting a telegraph company from liability for any cause, 
 is against public policy and void. Bartlett v. Western Union Telegraph Co., N. S. 
 xiv. 199. 
 
 6. In an action for the erroneous transmission of a message, the burden is 
 on the company of showing that the error was caused by some agency for 
 which it was not liable. Id, 
 
900 TELEGEAPHS AND TELEGEAPH COMPANIES. 
 
 7. The law of contracts by telegraph. Subject discussed, N. S. xiv. 401. 
 
 8. Telegraphs and telegrams, the law of. Subject discussed, N. S. iv. 
 193. 
 
 9. How far they may limit their liabilities. Warm y. W. U. Telegraph Co., 
 N. S. Ti. 63. 
 
 10. May require message to be repeated. Id. 
 
 11. As to right to erect telegraph poles in the highways. Bee Diekeyr. 
 Maine Tel. Co., 0. S. viii. 359. 
 
 12. Where a telegraphic communication was sent subject to the express 
 condition that the telegraph company would not be liable for mistakes arising 
 from any cause, unless the message was repeated by being sent back, it was 
 held that the plaintiff was bound by his contract, and could not recover unless 
 he brought himself with the terms of the company's undertaking. Camp v. 
 The Western Union Telegraph Company, 0. S. vi. 443 ; affirmed, 0. S, vi. 734. 
 
 13. Telegraphic companies are not, in any just sense, common carriers, 
 and cannot be made liable upon the principles applied to carriers. Id. 
 
 14. Telegraph companies holding themselves out to transmit despatches 
 correctly, are bound bo to do, or respond in damages, unless the causes of 
 failure are beyond their control. Bowen v. The Lake Erie Telegraph Company, 
 0. S. i. 685. 
 
 15. Where a telegraph company receives a, message addressed to a place 
 beyond its route, and takes the compensation for the entire distance, it en- 
 gages for the due delivery of the message at its destination, unless it ex- 
 pressly limits its responsibility to its own route, or the circumstances are such 
 as to clearly indicate that such was the understanding of the contracting par- 
 ties. Telegraph Co. v. De Rutte, N. S. v. 407. 
 
 16. The receiver of the message is entitled to sue for his loss by the com- 
 pany's negligence. Id. 
 
 17. The same general principles apply to the liabilities of telegraph com- 
 panies as to common carriers, but not invariably to the same extent. Id. 
 
 18. A telegraph company has a right to limit its liability by requiring a 
 message to be repeated, but knowledge of this requirement must be brought 
 home to the sender. Id. 
 
 19. When a person received a telegram in which there were several errors, 
 all but one of which, however, he interpreted correctly, and that one was not 
 apparent on its face, it is not such negligence in him not to have the mes- 
 sage repeated, as will prevent his recovery for loss incurred in consequence 
 of the undiscovered error. Id. 
 
 20. Where a party receiving .i telegram erroneously directing him to pur- 
 chase wheat at 25 francs instead of 22 francs, as the message should have 
 been, purchases a quantity of wheat which he is obliged to resell at a lower 
 price, the loss is such a direct result of the negligence as will entitle him 
 to recover. Id. 
 
 21. The New York Act of 1848 in regard to telegraph companies and mes- 
 sages, is intended as much for the protection of the companies against combi- 
 nations and monopolies among themselves, as for the public. Id. 
 
 22. Nature and extent of responsibility, considered. Id., Note, 418. 
 
 23. Telegraph companies, in the absence of any provision of the statute, are 
 not common carriers, and their obligations and liabilities are not to be meas- 
 ured by the same rules, but must be fixed by considerations growing out of 
 the nature of the business in which they are engaged. They do not become 
 insurers against errors in the transmission of messages, except so far as by 
 their rules and regulations, or by contract, they choose to assume that position. 
 Western Union Telegraph Co. v. Carew, N. S. vii. 18. 
 
 24. When a person writes a message under a printed notice, requesting the 
 company to send such message according to the conditions of such notice. 
 Meld, that the printed blank was a general proposition to all persons of the 
 terms and conditions upon which messages would be sent, and that by writing 
 said message and delivering it to the company, the party must be held as 
 accepting the proposition, and that such act becomes a contract upon those 
 terms and conditions. Id, 
 
 25. Where a telegraph company established regulations to the effect that it 
 would not be responsible for errors or delay in the transmission of unrepeated 
 messages, and further, that it would assume no liability for any error or neg- 
 
TELEGEAPH COMPANIES— TENANT FOE LIFE. 901 
 
 lect oommitted by any other company over whose lines a message might be 
 sent in the course of its destination. ITeld, that such regulations were reason- 
 able and binding on those dealing with the company. Western Union Telegraph 
 Co. T. Carew, N. S. vii. 18. 
 
 26. May limit liability by rules as to repetition of messages, and writing 
 message on company's blank, with printed conditions, will be evidence of no- 
 tice of such rules. Elli^ v. Tel. Co., N. S. vii. 127. 
 
 27. A telegraph company that is authorized by its charter to construct its 
 line "along and upon any highway," by the erection of posts for sustaining 
 the wires, but not to be so constructed as to incommode the public use of the 
 highway, maybe responsible for damages to an individual, occasioned by such 
 erection, if improperly made, or by suifering the same to fall down or be out 
 of repair, although thereby the use of the path made and used in the centre 
 of the highway is not obstructed. Dickey v. Marine Telegraph Company, O. S. 
 viii. 358. 
 
 28. It is the duty of the telegraph company to transmit the messages just 
 as they are delivered to them. Should they not do so, they will be liable for 
 any loss that may ensue by the wrong transmission. The New York and Wash- 
 ington Telegraph v. Dryburg, 0. S. viii. 490. 
 
 29. Telegraph companies, like other corporations, may be sued in their 
 corporate character for damages arising from neglect of duty. Id. 
 
 30. Where the sender of.a telegraphic message wrote " two hund bouquets," 
 meaning two hand bouquets, and the agent of the telegraph company translated 
 "two hundred" bouquets, and so delivered the message to the person ad- 
 dressed, by which error he caused loss and damage. Held, that the person 
 to whom the erroneous message was sent could maintain an action in his own 
 name, and that the company were liable for the loss or damage caused by such 
 error in transmitting. Id. 
 
 31. Quxre, \yhether the telegraph company should not be regarded as the 
 agent of both the sender of and the person to whom the dispatch is ad- 
 dressed. Id. 
 
 32. A servant, as such, cannot be charged for neglect, but the principal 
 shall be charged for it ; but for a misfeasance an action will well lie against 
 the servant. Id. 
 
 33. Telegraph companies may make reasonable regulations concerning the 
 transmission of messages, but cannot avoid liability for their own want of 
 care or skill in the performance of what they undertake to do. Graham v. 
 Union Telegraph Co., N. S. x. 319. 
 
 34. A regulation that messages must be repeated by being sent back from 
 the station to which they are addressed is reasonable ; but where the action 
 is not for incorrect transmission of the message, but for failure to deliver 
 it at all, the non-compliance by the plaintiff with such regulation is no de- 
 fence. Id. 
 
 35. In an action against a telegraph company for failure to deliver a mes- 
 sage to "ship oil as soon as possible," the plaintiff cannot recover for profits 
 he might have made had the message been promptly delivered. Such profits 
 cannot be considered as fairly within the contemplation of the parties, and 
 are_ too speculative and contingent in their nature to be a proper element in 
 the measure of damages. Id. 
 
 36. A telegraph company will be liable for delay in transmitting a message. 
 Rittenhouse v. Independent Telegraph Co., N. S. x. 800. 
 
 TELLER IN A BANK. 
 
 How far fraudulent act of, binds the bank. Atlantic Bank v. Mechanics' 
 Bank, 0. S. ix. 241. And see Bank Check. 
 
 TEMPEST. 
 
 The fragments of a building blown down by a tempest are not thereby con- 
 verted into personalty, but pass to the purchaser of the realty at sheriff's 
 sale. Rogers v. Gillinger, 0. S. vi. 430. 
 
 TENANT FOR LIFE. 
 
 1. Is bound to keep the premises in as good repair as when he entered. In 
 re Sale of Infant's Lands, N. S. x. 278. 
 
 2. Accessions to and produce of a gift for life, with remainder over during 
 
902 TENANT FOE LIFE— TENANT IN COMMON. 
 
 the life estate, belong to the tenant for life and not to the remainder-man. . 
 Woods V. Sullivan, 0. S. i. 381. 
 
 3. Tenant for life is bound to repair the ordinary wear and tear to the 
 premises. In the Matter of Lands of Mary E. Stull, N. S. viii. 127. 
 
 4. The accumulated surplus or undivided earnings of an incorporated com- 
 pany are part of its capital, and as such belong to the remainder-man ; but 
 an extra dividend declared out of the earnings belongs to the life tenant. Van 
 Doren v. Van Daren's Trustee, N. S. viii. 189. 
 
 5. Injunction will issue to prevent the cutting down of fruit trees, shade 
 trees, or ornamental shrubbery, by tenant for life. Tainter v. Mayor of Morris- 
 town, N. S. viii. 127. 
 
 TENANT FOB TEARS. 
 
 1. A tenant for years who offers to pay off a mortgage debt has the right 
 to redeem, and to have the mortgage delivered to him uncancelled. Hamilton 
 v. Dobbs, N. S. viii. 187. 
 
 2. An estate at will is converted into a tenancy from year to year by the 
 payment of rent. Silaby Y.Allen, N. S. xi. 198. 
 
 3. An estate for years may be bought and sold against the consent of the 
 grantor unless the deed prevents it. Clark v. Herring ^ Mock, N. S. xi. 331. 
 
 TENANT IN COMMON. 
 
 1. One tenant in common cannot bring ejectment against his co-tenant, 
 unless there has been an ouster. Hammond v. Morrison's Lessee, N. S. x. 478. 
 
 2. The possession of one of several owners of land, though jinder a deed 
 purporting to convey the entire interest, will not be presumed as hostile to 
 the other owners. King v. Whaley, N. S. x. 543. 
 
 3. A decree in partition, that such portions be allotted to the different ten- 
 ants in common as they have respectively improved, is correct. Seale v. Soto, 
 N. S. viii. 509. 
 
 4. All tenants in common should join in a partition. Sutler v. San Fran- 
 cisco, N. S. viii. 700. 
 
 5. Declarations of tenants in common are not admissible against each other. 
 Pier V. Duff, N. S. x. 66. 
 
 6. A tenant in common', who has made improvements on the land, ia en- 
 titled to an equitable partition. Hall v. Piddock, N. S. x. 349. 
 
 7. A deed to persons as tenants in common, who are partners, must govern 
 as to purchasers and creditors in distributing the proceeds of a sale of the 
 title. Hbbert's Appeal, N. S. xii. 405. 
 
 8. A refusal by one tenant in common to let his co-tenant come in or par- 
 ticipate in the enjoyment of the common property is equivalent to turning 
 him out, and constitutes an adverse possession. Roberts v. Moore, 0. S. ix. 25. 
 
 9. Where tenants in common lay out a lot as a street, and covenant not to 
 build within eight feet of it, each acquires a negative easement in the lands 
 of all. Greene v. Creighton, N. S. ii. 382. 
 
 10. Tenant in common, right of partition. See Partition. 
 
 11. One who has a joint or' common interest with others in land, has no 
 right to purchase an incumbrance or outstanding title, and set it up against 
 the rest ; the utmost he can claim is contribution. Hence, where one under 
 a contract for the purchase of land entered and made improvements, and 
 then died, it was held that his widow remaining in possession could not re- 
 pudiate the contract and purchase the property for herself, so as to effect 
 the right of her children, or of the creditors of her husband. Weaver v. 
 Wible, 0. S. iv. 384.. 
 
 12. A tenant in common wrongfully excluded by his co-tenant from pos- 
 session of the common property may ordinarily maintain ejectment for his 
 interest. Austin v. Rutland R. R. Go., N. S. xii. 416. 
 
 13. One moiety of land was held by a railroad company in fee and the other 
 moiety by a tenant for life. The railroad company acquired the life estate, 
 and then built its road over the land. After the expiration of the life estate 
 the remainder-man brought ejectment to recover possession of the land jointly 
 with the company. Held, that the action would not lie. Id, 
 
 14. The building of the road by the company while it had the exclusive 
 right of possession was a lawful use of its own property, and could not be 
 changed into an unlawful ouster of the plaintiff by his subsequently accrued 
 
TENANT IN COMMON. 903 
 
 right of joint possession. The circumstances of such a case take it out of the 
 ordinary rule, and the plaintift' is remitted to his statutory remedy for dam- 
 ages. Austin V. Rutland R. R. Co.y N. S. xii. 415. 
 
 15. The lot was on the shore of Lake Cliamplain. During the time of the 
 • railroad company's exclusive possession, it built a wharf out into the lake 
 
 beyond low-water mark. BeM, that plaintiff's had no right or interest in this 
 wharf, and it must be excluded in assessing the value of their estate in the 
 lot. Id. 
 
 16. Purchase by tenant in common of an outstanding title, enures to the 
 benefit of his co-tenants. Rothwell y.Dewees, N. S. iii. 50. 
 
 17. The rule applies to the husband of one of the tenants in common. Id. 
 
 18. A deed by a tenant in common of " sixty-four rods being part of" the 
 lot held in common, passes no title in common ; nor in severalty without pos- 
 session taken under it of the part claimed. Phillips v. Tudor, N. S. iii. 184. 
 
 19. Where a tenant in common erects a building upon a portion of the 
 land, it is such an exclusive appropriation to his own use as will entitle his 
 co-tenant to maintain trespass. Bennett'^. Clemence et al., N. S. iii. 121. 
 
 20. Denial of rights of co-tenant by tenant in common of personalty is con- 
 version and will sustain assumpsit. Fiyuet v. Allison, N. S. iii. 766. 
 
 21. Occupying property cannot be held liable to his co-tenants for use and 
 occupation. Israel v. Israel, N. S. ix. 328. 
 
 22. Cotenant will only be allowed for expenses incurred, not in the preser- 
 vation of the property, but to gratify his taste. Id. 
 
 23. One cannot convey by metes and bounds a, part of the tract. Primm 
 ■^.Wallcer, N. S. vi. 255. 
 
 24. But such deed will bind him by estoppel. Id. 
 
 25. What admixture of grain will not make. Morgan v. Gregg, N. S. vi. 191. 
 
 26. Mere admixture will not necessarily produce tenancy in common. Id. 
 
 27. A conveyance by any number of tenants in common, less than the 
 whole, though not«void, cannot be made to prejiidice the tenants not joining 
 in the deed. Gales v. Salmon, N. S. viii. 510. 
 
 28. Cannot maintain trover against co-tenant for taking all the crops. 
 Ballou V. Hall, N. S. vii. 255. 
 
 29. Not bound to account. Wilcox v. Wilcox, N. S. vii. 127. 
 
 30. Married woman tenant in common of property occupied by her and her 
 husband — husband not bound to account. Id. 
 
 31. Where one tenant in common in remainder erects buildings on the 
 property with the consent of the life tenant and receives the rents, he will 
 not be allowed to hold the buildings after the death of the life tenant, and he 
 must account tfti the rents received since his death. Scott v. Guernsey, N. S. 
 xi. 134. 
 
 32. A tenant in common in possession of the property, is liable for rent 
 only when he agrees to pay it. Id. 
 
 33. A tenant in common receiving rents, is liable to pay interest on the 
 sums received without previous demand. Id. 
 
 34. An action on the case sounding in tort, may be maintained by one 
 tenant in common against his co-tenant, for misuse of the common property. 
 McLellan v. Genness, N. S. xi. 134. 
 
 35. A tenant in common is not in general accountable to his co-tenant for 
 rents, but when he takes possession and excludes his co-tenant, he must 
 account, deducting taxes and repairs. Davidson v. Thompson, N. S. xi. 134. 
 
 36. Where an inheritance consists of several distinct freeholds, a tenant in 
 common may convey his undivided interest in any one or more of them, and 
 it may be sold on execution without reference to any of the other parcels. 
 Butler v. Roys, N. S. xi. 560. 
 
 37. Where such an inheritance or estate consists of separate city lots 
 which have been platted, each lot is presumed to be a separate holding, in 
 the absence of evidence showing such a combined use, or sucli a subjection 
 to some common lease or charge as would make them in fact one freehold, 
 and make it impossible to sever them without injustice. Id. 
 
 38. For life, is liable to remainder-man for injury to the inheritance by a 
 stranger or a co-tenant, and after satisfaction, may recover over against the 
 wrong-doer. Wood v. Griffln, N. S. v. 703. 
 
 39. Where tenant in common for life mortgaged his interest in lands and 
 
904 TENANT IN COMMON— TENDEE. 
 
 other tenants said to mortgagee that they would not otjeet to his cutting 
 timber on mortgagoi's share, such tenants are not estopped by such declara- 
 tions after death of mortgagor. Wood v. Griffin, N. S. v. 703. 
 
 40. Dower of widow of tenant in common. Blossom v. Blossom, N. S. v. 186. 
 
 41. Where A. and B., who were equal owners as tenants in common of four 
 tracts of land, made quit-claim deeds to each other of portions of said land 
 of about equal value, a judgment was entei-ed in favor of C. against B. ; C.'s 
 judgment was a lien upon the individual half of the land allotted to A. Man- 
 ley V. Pettee, N. S. v. 486. 
 
 42. Semble. — There may be tenancy in common of a mill-dam under Act of 
 1803. Campbell v. Hand. N. S. v. 181. 
 
 43. Partition between tenants in common by written agreement to refer to 
 arbitrators. Wilder v. Russell, N. S. vi. 383. 
 
 44. Failure of a tenant in common to divide logs and claiming to own them 
 exclusively, is conversion, and other may sue in trover. Ripley v. Davis, N. S. 
 vi. 320. 
 
 45. Where the owner of land leased, is to receive part of the produce, in- 
 stead of rent, the lessor and lessee become tenants in common of the crops. 
 Brown v. Lincoln, N. S. viii. CI. 
 
 46. Parol promise by tenant in common to convey no bar to suit for parti- 
 tion. Polhemus and Wife v. Hudson, N. S. viii. 127. 
 
 47. Trespass cannot be maintained by tenant in common against his co- 
 tenant, unless in case of unequivocal ouster. Filbert v. Hoff, N. S. ii. 502. 
 
 48. A transfer by one co-tenant or partner to another is within the prohi- 
 bition of alienation. Buckley v. Garrett, N. S. iv. 441. 
 
 TENDEE. 
 
 1. An offer to pay notes without an actual tender of the money is sufficient, 
 if such tender would be useless by reason of the defendant's having previously 
 sold the securities. James M. Lewis v. John A. Graham and Others, 0. S. v. 368. 
 
 2. Mortgagee refusing tender not entitled to interest, and liable for costs 
 on bill to redeem. Brown y. Simons, N. S. iv. 508. 
 
 3. Purchase of a portion of the land from mortgagor entitled to make ten- 
 der of the amount of the mortgage and hold a lien on the rest of the land, 
 but not to have counsel fees or costs as against subsequent purchasers. Id, 
 
 4. Mortgagor may demand a just account of amount due, and if not correct, 
 may tender the true amount or may file a bill to settle the amount. Currie 
 T. Webster, N. S. iv. 443. 
 
 5. Vendee, on refusal of tender of purchase-money, may pay it into court, 
 and will not be liable for interest. Thumpson v. McKinley, N. S. iv. 447. 
 
 6. What is a valid tender of payment of money. Berthold v. Eeyburn, N. S. 
 vi. 64. 
 
 7. Plaintiff having traversed plea of tender cannot except to right to file 
 such plea. Carpenter v. Welch, N. S. vii. 638. 
 
 8. Tender of money that would have been due on completion of the con- 
 tract is not essential. Orossgrove v. Uimmelrich, N. S. vii. 312. 
 
 9. If vendor unable to perform his agreement at time, purchaser need not 
 tender performance of his part. Karker v. Haverly, N. S. vii. 639. 
 
 10. The doctrine that bank-bills are a good tender, unless objected to at 
 the time. Ward v. Smith, N. S. viii, 354. 
 
 11. There is no right to tender a chose in action against the creditor in 
 payment of a judgment or execution. Thorp v. Wegefarth, N. S. viii. 62. 
 
 12. Where one purchases a chattel for another, he may sue for the money 
 without a tender of the thing. Esser v. Lindermann, N. S. xii. 728. 
 
 13. Where in foreign attachment, after service on the garnishee, but before 
 service on the defendant, the defendant tendered to the plaintiff the amount 
 of the debt alone, without the costs, such tender was held sufficient. Studwell 
 v. Cooke, N. S. xii. 223. 
 
 14. If there has been fraud in the sale of oil-stock, the purchaser could 
 rescind and recover back price, but the tender must be in reasonable time 
 after discovery of the fraud. Learning et al. v. Wise et al., N. S. xiii. 394. 
 
 15. It is for the jury to determine whether there has been a sufficient ten- 
 der by the vendor of goods purchased on buyer's option as to time. Lockhart 
 T. Bonsall et al., N. S. xiv. 759. 
 
TENDEE— TEXAS. 905 
 
 16. Lien of mortgage is discliarged by tender and refusal after the mort- 
 gage is due and before foreclosure. Van Husan v. Kanouse, N. S. iv. 576. 
 
 17. Where the mortgagor's assignee offered to pay the mortgnge-debt, at 
 the same time producing the money in a pocket-book, a part of which was in 
 bank-notes, and the holder of the mortgage refused to receive it, without 
 making any objection to the amount or kind of money, the tender was valid. 
 Brown v. Simons, N. S. iii. 154. 
 
 18. Subject to a condition is invalid. Draper v. Hitt, N. S. xi. 49. 
 
 19. A debtor may make a tender at any time before trial and save himself 
 from future costs, Sweetland v. Tuthill, N. S. xi. 135. 
 
 20 A tender of less than debt, interest, and costs, is not good. Id. 
 
 21. A verdict for less than the amount tendered is not good. Id. 
 
 22. The same strictness as to tender is required in equity as in law, and on 
 plea or answer, the money must be paid into court. Shields v. Lozear, N. S. 
 xi. 270. 
 
 23. By the strict rules of law, a tender of performance, as incident to the 
 legal duty to perform, could not anciently be made after the day iixed for 
 performance and before suit brought. Studwell v. Cooke, N. S. xii. 223. 
 
 24. A different rule was adopted early in this state, Tracy v. Strong, 2 Conn. 
 659, and a tender may be made here at any time after the breach, and before 
 the commencement of the action. Id. 
 
 25. Is a good plea in bar, and if followed up protects the defendant. 
 Wheeler v. Woodward, N. S. x. 800. 
 
 26. Where a tender sufficient in amount to discharge a mechanic's lien upon 
 personal property was made, on condition that the property be delivered up, 
 and the only objection made to the tender was that the amount was insuifi- 
 cieut. Held, that the tender was not vitiated by the condition. Moynahan v. 
 Moore, N. S. i. 185. 
 
 TERRITORIES. 
 
 1. The territories, even after being organized by Congress, possess none of 
 the attributes of sovereignty. They cannot, therefore, enact laws for the 
 forfeiture of lands of aliens. Montana v. Lee, N. S. xiii. 487. 
 
 2. The nature and extent of territorial governments discussed, their powers 
 defined and explained. Id. 
 
 3. By the organic Act of Minnesota Territory, the general government be- 
 came pledged to defray "the expenses of the legislative assembly, printing 
 of the laws, and other incidental expenses." The United States v. Charles K. 
 Smith, 0. S. V. 268. 
 
 TESTS FOR ARSENIC. 
 
 Subject discussed. 0. S. i. 11. 
 
 TEXAS. 
 
 1. Citizen of United States, who was alien in Texas, became citizen of 
 Texas on admission of that state. Osterman v. Baldwin, N. S. vii. 317. 
 
 2. Application of Mexican Colonization Act of 1824 to. Christyy. Pridgeon, 
 N. S. vi. 437. 
 
 3. Under the Spanish jurisprudence, and the principles of the laws of the 
 republic and state of Texas, the interests of the husband and the wife in the 
 community property are severed by the death of either spouse, and the in- 
 terest of the deceased partner rests at once in his or her heirs, subject only 
 to the community debts. Thompson v. Cragg and Cragg v. Smalley, 0. S. viii. 497. 
 
 4. Where the husband (in Texas), after the death of his wife (leaving chil- 
 dren surviving), contracted to sell the community property, and executed a 
 bond for title, a decree, after his death, in a suit for specific performance of 
 the bond brought against such children, as "the heirs of their deceased 
 father," is only binding on them in that capacity, and will not divest their 
 interest in such community property as the heirs of their deceased mother. 
 Id. 
 
 5. Nor will a commissioner's deed, made in pursuance of such decree, vest- 
 ing in the purchaser all the rights of the plaintiffs "as heirs of their de- 
 ceased father," be a sufficient title or color of title to support the plea of the 
 statute of limitations of the state of Texas of three years, and defeat their 
 right to a recovery in a suit brought by them as heirs of their deceased 
 mother. Id. 
 
906 TEXAS— THREATS. 
 
 6. In suits for partition in Texas, where there is no dispute as to the title, 
 the equities between the parties, growing out of improvements and ameliora- 
 tions, can be adjusted by the court, with the aid of the commissioners ap- 
 pointed for the purpose. Thompson v. Oragg and Cragg v. Smalley, 0. S. Tiii. 
 497. 
 
 7. But in cases like the present, where questions of title and good faith 
 are involved, it is the right of the defendant, under our statute, to have the 
 question of good faith submitted to the jury, and it is their further right to 
 have the value of their permanent and valuable improvements assessed by a 
 jury, and secured to them in the ultimate partition. Id. 
 
 8. The proper and most convenient m ode to do this is to submit to the jury 
 issues i;especting the value of the different tracts claimed by the defendants, 
 respectively, with and without improvements. Id. 
 
 9. The court below properly excluded from the jury evidence to the effect 
 that the surviving father was a poor man, and that the community property 
 was sold for the support of the family. To uphold sales of this character 
 on such grounds, would withdraw the most important rights from the control 
 of judicial tribunals, and leave them to the capricious inclinations of indi- 
 viduals. Id. 
 
 10. Where a female, under the age of twenty-one years, is married in ac- 
 cordance with the laws of Texas, she is deemed of full age, and the statute 
 of limitations commences to run against her from the time of her marriage. Id. 
 
 11. The case of White v. Latimer, 12 Tex. 61, in this latter point, reviewed 
 and affirmed. Id. 
 
 12. After the death of the husband or wife, the surviving spouse, under 
 the Spanish law, had no right to sell the whole of the community property, 
 but one- half thereof descends presently to the heirs, subject only to the com- 
 munity debts. Id. 
 
 13. The ease of Pannand v. Jones, 1 Cal. Rep. 448, maintaining the contrary 
 doctrine, fully discussed and considered, in connection with the Spanish law 
 on the subject, and held to be in direct conflict with the law. Id. 
 
 TEXT-BOOKS, USB OF. 
 
 The correct method of using and applying the language of the text-boots 
 in a capital case before the jury and by the judge, explained. State ■7. Mc- 
 Donnell, 0. S. viii. 609. 
 
 THEFT. See Ckiminal Law. 
 
 1. The general rule that a boat will be liable for the theft of a watch, 
 breastpin, pocket-money, and such like, when there are locks to the doors, 
 if such things be taken in the night-time without breaking. Vanderpool v. 
 The Crystal Palace Steamboat, 0. S. iii.'493. 
 
 2. Hotel-keeper not liable for the theft of valuable articles belonging to a 
 lodger, not deposited in the safe of the hotel. Proflet v. Hall Sr Hildreth, 0. S. 
 viii. 561. 
 
 THEORY OF THE COMMON LAW. 
 
 By Walker — leading article — remarks upon. 0. S. i. 577. 
 
 THREATENING LETTER. 
 
 In action for writing, the loss or inconvenience sustained must be direct 
 result of the letter, and be more than mental suffering. Taft v. Taft, N. S. 
 vii. 636. 
 
 THREATS. 
 
 1. Previous threats, unconnected with any manifestation at the time of the 
 killing, of an intention to carry them into immediate execution, will not ex- 
 tenuate the crime of a deliberate homicide committed in cold blood by one 
 lying in wait purposely to take the life of his adversary, even if the motive 
 which aiotuated the slayer was the preservation of his own life from appre- 
 hended violence from the deceased ; but such killing is murder in the first 
 degree. Lander v. The State, 0. S. ii. 755. 
 
 2. The rule as to self-defence in 2 Stark, Ev. 721 ; 1 Russ on Crimes, 661 ; 
 Whart. Am. Crim. Law, 254 ; 1st ed., 385 ; 2d ed., stated and shown to be 
 the true rule. Id. 
 
 3. Threats in order to avoid a note, must be such as would intimidate a 
 
THEEATS— TIMBEE. 907 
 
 man of ordinary firmness, and if the defendant had mind enough to compre- 
 hend the character and object of the note, and if he acted as a voluntary 
 agent in executing it, it would be good, otherwise, it would be absolutely 
 void; after a verdict for the plaintitf, it was held that the charge was un- 
 exceptionable. Walbridge v. Arnold, 0. S. i. 566. 
 
 4. Where a further defence to such action was, that the note was given 
 under the pressure of a criminal prosecution, and to induce a suppression of 
 it ; and the court charged the jury, that if the note was given freely, to satisfy 
 the plaintiff's private claim for damages, it was good; but void, if it was given, 
 in whole or in part, to suppress an inquiry into the commission of an offence, 
 or to prevent in any measure, the administration of criminal justice ; it was 
 held that the charge was not erroneous. Walbridge v. Arnold, 0. S. i. 566. 
 
 THROUGH TICKETS. See Tickets. 
 
 TICKET. See Kailroad. 
 
 1. A person cannot, by merely procuring his ticket as a passenger, compel 
 a railroad company to carry him daily. Mc7rihew v. The Milwaukee ^ Miss. R. 
 E. Co., 0. S. V. 304. 
 
 2. The sale of a ticket to a passenger is a contract to carry such passenger 
 according to their rules and regulations. Coger v. N. W. Union Packet Co., N. 
 S. xiii. 162. 
 
 3. Sold as good over several railroads, liability of each road as to. Lead- 
 ing article on Railways, N. S. i. 12. 
 
 4. Distinction between the liability of railroads for transportation of bag- 
 gage and for that of passengers. Joint as to baggage, several as to passen- 
 gers. Id. 
 
 TIDE. See Navigable Stkeam, Riparian Owners, River, Naviqation, Stream. 
 
 1. Although the most usual test of the navigability of a river, does not 
 apply to the Mississippi. McManus v. Carmichael, 0. S. v. 593. 
 
 2. The real test of navigability in this country is ascertained by use. Id. 
 
 3. The ebb and flow of the tide does not in reality make the water navi- 
 gable. Id. 
 
 4. Legislative control over tide-water, rights of riparian owners to water 
 in front of them. Steamboat Co. v. Transportation Co., N. S. vii. 759. 
 
 5. Old division line between lands to prevail. Stockham v. Browning, N. S. 
 vii. 767. 
 
 6. Rights of riparian owners. Id. 
 
 7. No rule established in New Jersey to determine the line by which shore 
 in front of coterminous shore owners shall be divided between them. Id. 
 
 8. In Michigan there are no tide-waters which come within the technical 
 meaning of the term "navigable," as understood in the common law. Lor- 
 man v. Benson, 0. S. viii. 219. 
 
 9. The circumstance that the state of Michigan has more than a thousand 
 miles of external boundary waters open to navigation, in a popular sense, 
 does not require the rule of the common law to be modified so as to apply the 
 doctrines belonging to tide-waters navigable in a common-law sense to such 
 waters as are beyond the tidal influence. Id. 
 
 10. Hence, a defendant was held liable in special damages, for obstructing 
 the plaintiff in taking ice, by compelling him to travel, at a greater expense, 
 a greater distance, by reason of the placing of a boom in the stream opposite 
 the riparian owner's shore. Id. 
 
 11. The rights of riparian owners discussed, and the cases cited and com- 
 mented on. Id. 
 
 12. Rights of navigation discussed. Id. 
 
 TIMBER. . . . ^ 
 
 1. Tenant by courtesy may not commit waste by cutting timber. Porch v. 
 Pries, N. S. vii. 699.. ^ , j „ 
 
 2. Husband of infant cannot sell growing timber on her land. Id. 
 
 3. Wood, timber, &o., distributed along the line of a railroad for present 
 use, are part of it for purposes of taxation. R. R. Co. v. Prescott, N. S. vii. 255. 
 
 4. Construction of contract for sale of standing timber with stipulation of 
 vendee to cut and carry away. Murphy v. Garland, 'N. S. vii. 318. 
 
 5. A wrong-doer cannot dispute the title of one in the possession of land 
 
908 TIMBER— TIME. 
 
 and claiming as owner, in an action against him for cutting down and carry- 
 ing away timber. Nelson t. Mather, N. S. viii. 447. 
 
 6. An injunction will be granted to prevent a tenant from committing 
 waste, by cutting timber. McCay y.Wait, N. S. viii. 191. 
 
 7. Only damages actually proven allowed for cutting timber on vacant 
 land. Mining Co. v. Irhy, N. S. ix. 583. 
 
 8. Sale of growing trees, with right to enter to remove them, is an inter- 
 est in land, and within the statute. Howe v. Baichelder, N. S. ix. 719. 
 
 9. In trespass for cutting timber oflF vacant land, plaintiff must show good 
 title. Mining Go. v. Irhy, N. S. ix. 583. 
 
 10. Among the rights of an independent belligerent, is that of cutting down 
 timber, &o., for the use of the army. Smith v. Brazlelon, N. S. ix. 7C2. 
 
 11. Timber trees cut down, but lying on the ground, will pass by deed of 
 the land. Brackett v. Goddard, N. S. vii. 442. 
 
 12. Timber cut upon land, the title of which is in the state, belongs to the 
 state. Schulenberg v. Harriman, N. S. xiv. 463. 
 
 13. When cut, though it becomes personalty, its title is not changed, it is 
 the property of the owner of the land. Id. 
 
 14. In Minnesota, when logs cut from state lands are intermingled with 
 others, an equal amount may be replevied from the mass. Id. 
 
 15. City ordinance of New Bedford in regard to. Briggs v. A Light-Boat, 
 N. S. iii. 566. 
 
 IG. An assignment of a permit to cut timber transfers to the assignee the 
 trees afterwards cut under it, and he may maintain trespass against an 
 officer attaching them as the assignor's. Sawyer v. Wilson, N. S. xiii. 261. 
 
 TIME. 
 
 1. An extension until "summer" means the first day of June. Abely. 
 Alexander, N. S. xiv. 63. 
 
 2. If no time fixed, grantee has a reasonable time for removal. Soil v. 
 The Stratum Mills, N. S. xiv. 326. 
 
 3. The constitution gives a certain number of days, of twenty-four hours 
 each, and the governor's veto would atill be in time if delivered to the 
 speaker on the last day, though after the adjournment of the house. Opinion 
 Sup. Q.N.H., N. S. iv. 212. 
 
 4. In New Hampshire, the day an act is done excluded in computing time. 
 Id. 
 
 5. If a thing sold is of greater or less value according to the lapse of time, 
 time is of the essence of the contract. Gale v. Archer, N. S. iv. 319. 
 
 6. To build a house in a certain time, not excused by reason of a latest 
 defect in the soil, compelling the taking down and rebuilding part of the 
 house. Dermotl v. Jones, N. S. iv. 504. 
 
 7. It is a question of fact for the jury fo determine when a presumption of 
 loss arises, also the time it occurred. Clifford y. Insurance Co., N. S. iv. 594. 
 
 8. Agreement by creditor to extend time of redemption of land, mortgage 
 for security of his debt does not extend the personal liability of the debtor. 
 Ball v. Wyeth, N. S. iv. 185. 
 
 9. Time, as a general rule, the essence of a contract in equity for sale of 
 land. Goldsmith v. Guild, N. S. v. 506. 
 
 10. Mortgage "payable in five years," may be paid any time within five 
 years. Horsiman v. Gerker, N. S. v. 189. 
 
 11. In equity, time is not of the essence of a contract, unless expressly 
 made so. Bullock v. Adam's Ex'rs, N. S. ix. 385. 
 
 12. Holidays not favored in commercial law in the computation of time. 
 The Tangier v. Goddard, 0. S. vi. 504, and Same v. Same, 0. S. viii. 278. 
 
 13. Suit brought October 6th, 1868, on a note due October 6th, 1862, is not 
 barred by the statute. Menges v. Frick, N. S. xiii. 399. 
 
 14. The day on which the cause of action arose is to be excluded from com- 
 putation.' Id. 
 
 15. When a, thing is to be done within a certain time from a prior day, the 
 day is to be excluded. Id. 
 
 16. Where a debtor executes a bill of sale to secure the payment of a sum 
 of money, and expressly provides that if it is not paid "immediately upon 
 demand in writing," that the creditor should seize and sell the goods, a 
 demand in one week, and a sale in eight days thereafter,, will be held to be a 
 reasonable allowance of time. Wharlton v. Kirkwood, N. S. xiii. 592. 
 
TIME. 909 
 
 17. Congress, under the Reconstruction Acts, approved the constitution of 
 Virginia on April lOth, 1869, and ordered it to be submitted to the people. 
 On July 6th, 1869, it was submitted and adopted by a large majority of the 
 people, who on the same dny elected a governor, legislature and other state 
 ofiBoers. The governor was inaugurated in September, 1869, and the legisla- 
 ture met in October, 1869, and passed acts ratifying the 14th and 15lh Amend- 
 ments — all of these preliminaries being required by the Reconstruction Acts 
 before the admission of the state to representation in Congress. Congress, 
 on January 26th, 1870, passed an act admitting the state to representation. 
 The constitution contained a provision for homestead exemption, but this was 
 not applicable to debts incurred prior to the time the constitution went into 
 eOfeot. Held, that as to this clause the constitution went into effect on the 
 day of its ratification by the people, July 6th, 1869. In re Dechert, N. S. 
 xiii. 624. 
 
 18. When any matter of proceeding or practice is required by statute or 
 rule of court to be within a certain number of days, the first day, or terminus 
 a quo is excluded. Thome v. Mosher, N. S. ix. 390. 
 
 19. Rule as to computation of, discussed. Note to Opinion, S^c, N. S. iv. 222. 
 
 20. Where it does not operate as a statutory or positive bar, operates 
 simply as evidence of assent or acquiescence. Life Asao'nv. Siddall, N. S. i. 175. 
 
 21. In general, time is not of the essence of a contract to sell land ; but it 
 may be made so either by the contract itself or by the nature of the subject- 
 matter. Ruckman v. King, N. S. ix. 146. 
 
 22. Parol evidence is admissible to show that, at the making of the con- 
 tract, time was considered of the essence of it. Id. 
 
 23. '^ At the time, and the manner mentioned," is not sufficient in itself to 
 make time of the essence of the contract. Id. 
 
 24. The time which constitutes laches depends upon circumstances. 
 Smith V. Drake, N. S. xii. 471. 
 
 25. Whether four days is a reasonable time, where a vendee seeks to rescind 
 a contract on the ground of fraud, he must return the property within a 
 reasonable time, is a question of fact and not of law. Manahan v. Noyes, N. 
 S. xii. 670. 
 
 26. A paper promising to pay with interest a sum specified and acknowl- 
 edged to be due "as soon as the crops can be sold, or the money raised from 
 any other, source," five years is more than a reasonable time. Nunez v. Daulel, 
 N. S. xiii. 706. 
 
 27. When the facts are undisputed, what is reasonable time or undue delay, 
 is for the court. Leaming et al. v. Wise et ah, N. S. xiii. 394. 
 
 28. AVhen time is to be computed from an act done, the day on which an 
 act was done must be included in the computation, because, since there is no 
 fraction in a day, the act relates to the first moment in the day on which it 
 was done; consequently, the day on which the decree was rendered, must be 
 included in the compulation of the time limited; and the three years had 
 expired on the day previous to the one on which the writ issued. Chibs v. 
 Smith's Heirs, 0. S. i. 444. 
 
 29. Where a contract is to be performed on a certain day, an unqualified 
 refusal of performance, during any part of that day, is a breach, and the 
 other party may recover his damages. Mountjoy v. Metzger, N. S. xii. 442. 
 
 30. Suit for the breach, commenced on the same day but after the refusal 
 to perform is not premature. Id. 
 
 31. In a contract which stipulates that certain work is to be performed 
 within a fixed time, a refusal to comply with the terms to be deemed an aban- 
 donment and forfeiture of all rights under it, the time is of the essence of the 
 contract. Fitzgerald v. Hayward, N. S. xii. 771. 
 
 32. On a failure to comply with the terms, the party damnified has a right 
 to employ others to perform the work, and will not be held responsible for 
 the profit the contractor might have made. Id. 
 
 33.' The general rule in the computation of time within which an act is to 
 be done is to exclude the first day and include the last. Citizens' Bank v. 
 Ober, N. S. x. 36. 
 
 34. This is the rule prescribed by the Bankrupt Act, unless the last day 
 happens to fall on Sunday, in which case that day is excluded also. In all 
 other cases Sundays are counted as other days. Id. 
 
910. TIME POLICY— TITLE. 
 
 TIME EOLICY. See Insdkancb. 
 
 TITLE. 
 
 1. The title of the finder of lost goods, is good against all the world except 
 the owner. Lawrence y. Bttek, N. S. xiv. 200. 
 
 2. An abstract of title, subject discussed. N. S. xiv. 529. 
 
 3. Title of real estate in America — the English doctrine of uses discussed. 
 0. S. v. 641. 
 
 .4. Title to real estate — leading article on the right of the legislature to 
 change the legal character of estates. 0. S. vii. 613. 
 
 5. There can be no constructive possession of land without color of title. 
 Wells V. Jackson Iron Co., N. 8. ix. 520. 
 
 6. An entry on part of a lot with color of title, gives constructive posses- 
 sion of the entire lot. Id. 
 
 7. Agreement to purchase wheat, and payment of price, without separation, 
 manual delivery, bill of sale, or order on keeper of elevator, to transfer of 
 title. Rodee v. Wade, N. S. vi. 447. 
 
 8. Award of distinct acts to be done by each party, may be separately en- 
 forced. Title may pass by the award without further act of parties. Girdler 
 V. Carter, N. S. vii. 250. 
 
 9. Delivery to agent of grantor, with order to deliver it presently to grantee, 
 passes title at once. Parmelee v. Simpson, N. S. vii. 60. 
 
 10. Equity will entertain a bill to remove a cloud upon the title of land in 
 the complainant's possession caused by invalid tax sale. Barnard v. Hoyt, N. 
 S. xiv. 63. 
 
 11. In a statutory grant, unless there are restrictive words, there is an 
 immediate transfer of title. Schulenberg v. Harriman, N. S. xiv. 459. 
 
 12. What will amount to a defect in title to justify a rescinding of contract 
 to purchase. See Simmons v. Heseltine, 0. 9. vii. 512. 
 
 13. Purchasers under an order of the court decreeing a sale of such citi- 
 zen's real estate, will be protected ih their titles. Dorsey v. Thompson, N. S. 
 xii. 732. 
 
 14. Where a grantor by conveyance with warranty, acquires a subsequent 
 title, it will enure to the grantee by estoppel. Tefft v. Munson, N. S. xii. 57. 
 
 15. The charter of incorporation of a town, gives no title to the laud in the 
 town to the municipal body. South Hampton v. Fowler, N. S. xii. 669. 
 
 16. Father claiming title, must show death of son without issue. Slinchfield 
 V. Emerson, N. S. vi. 186. 
 
 17. A decree in partition in orphans' court (Pa.) divides the subject among 
 the heirs ; it is no transfer of title to them. Dresher v. Water Co., N. S. vi. 638. 
 
 18. It is the settled rule in the law of stoppage in transitu, that movable 
 property sold but not paid for, may, on the discovery of the vendee's insol- 
 vency before it has come into his possession, be seized by the vendor. Camp- 
 bell et al. V. Caieen, 0. S. v. 683. 
 
 19. Vendor afterwards acquiring fee, holds it in trust for his vendee, or 
 vendee's mortgagee. Clarke v. Martin, N. S. v. 255. 
 
 20. Purchase of outstanding title by vendee in possession enures to ven- 
 dor's benefit. Vendee will be allowed costs of purchase. Ash v. Hohler, 
 N. S. V. 448. 
 
 21. Purchaser from vendee at foreclosure sale, acquires mortgagor's title 
 had before giving mortgage. Butler v. Viele, N. S. v. 612. 
 
 22. Payment in counterfeit money does not divest owner's title. Green v. 
 Humphrey, N. S. v. 883. 
 
 23. When no title passes upon transfer of property by agent. Easton v. 
 Clark, N. S. vi. 313. 
 
 24. Ejectment will not lie, where plaintiff has a mere equitable title. Peck 
 V. Newton, N. S. vi. 186. 
 
 25. Where the owner of land has been dispossessed, a mere casual or 
 stealthy entry by him, does not disturb the adverse possession of the disseisor. 
 Burrows v. Gallup, N. S. vi. 84. 
 
 26. Mortgagee's title under chattel mortgage. Hall v. Simpson, N. S. vi. 
 381. 
 
 27. A party who has conveyed land by deed of warranty may acquire a 
 subsequent title by disseisin. Traip v. Traip, N. S. x. 71. 
 
TITLE. 911 
 
 28. The title of the United States to personal property is subject to lie con- 
 tested by a citizen who has a claim to the property. Dawson t. Susong, N. S. 
 X. 207. 
 
 29. The brand of the United States on stock, and a sale of it at publie sale, 
 win not preclude the true owner. Id. 
 
 80. The proprietary title of the Penns, Leading article, and historical 
 sketch of, N. S. x. 487. 
 
 31. A person having no title to a tract of land cannot question one of the 
 conveyances in the chain of title thereto. Carithers v. Weaver, N. S. x. 607. 
 
 32. Nor one simply holding a tax title. Id, 
 
 33. A lessee of laud contracting to pay all taxes, cannot acquire a valid 
 tax title, during such a lease, to the land. Id. 
 
 34. A tax deed conveying such title is void. Id. 
 
 35. A purchaser at a sheriff's sale knowing a third party is in possession, 
 is put ou inquiry as to the title. Maupin v. Emmons, N. S. x. 750. 
 
 36. An unrecorded deed is good between the parties and persons with 
 notice thereof. Id. 
 
 87. A complaint under 29th sect, of ch. 141 of Statutes of Wisconsin, to 
 remove cloud upon title, should state facts showing invalidity of defendant's 
 claim, and plaintiff's liability to injury. Wals v. Oroavenor, N. S. xii. 471. 
 
 38. The action to remove cloud from the title, cannot be maintained except 
 by one in actual and visible possession of the premises. Id. 
 
 39. An averment that plaintiff is the owner in fee simple and in possession 
 is sufficient. Id. 
 
 40. Actual possession of the land is notice of the title of the party in pos- 
 session. Russell V. Sweezy, N. S. xi. 458. 
 
 41. It is not necessary that the title of the plaintiff should be established 
 and possession obtained by an action at law. Bunce v. Gallagher, N. S. vii. 32. 
 
 42. A deed from A. to B. being on record, was notice to all subsequent 
 purchasers of the extent of B.'s title. Ford v. Flint et al., N. S. vii. 296. 
 
 43. Verbal agreement to convey land followed by payment of purchase- 
 money passes no title, nor even license to enter. Whitcher v. Morey, N. S. 
 vii. 188. 
 
 44. Agreement to sell land authorizing purchaser to take immediate pos- 
 session passes equitable title at once. McEechine v. Sterling, N. S. vii. 128. 
 
 45. Party not the real owner of goods can only sell as to pass title in 
 exceptional cases where he has possession and the indicia of ownership. 
 Spalding v. Brewster, N. S. vii. 640. 
 
 46. The title to property, sold to be delivered upon payment of purchase- 
 money, vests in the vendee upon tender of the price. Phillips v. Williams, N. 
 S. ix. 646. 
 
 47. The Court of Common Pleas in which a judgment is entered has juris- 
 diction after the defendant has been adjudged bankrupt, and a sale by the 
 sheriff would pass a perfect title to the purchaser. Fehley v. Barr, N. S. x. 
 795. 
 
 48. The effect of evidence of continuous possession as a basis of the claim 
 of title, is not diminished by proof of occasional interruptions. Raynor v. 
 Lee, N. S. x. 604. 
 
 49. The title to property is not changed where the vendee is in possession 
 under a void contract of sale. FuUerton v. Dalton, N. S. x. 414. 
 
 60. On a sale of machinery to be fixed to realty, part of the price in cash 
 and part to be secured by a chattel mortgage, the title will pass on the day 
 of sale, though delivery of mortgage is delayed. Matter of Hicks, N. S. x. 477. 
 
 51. The title to the property of a divided congregation is in that part 
 which is acting in harmony with its own law, Schnor' s Appeal, N. S. xi. 268. 
 
 52. A purchaser in good faith, without notice, of goods sold with the 
 intent to defraud creditors obtains a good title. Diefendorfy. Oliver, N. S. 
 xi. 396. 
 
 53. A sale on mesne process, of the property of a stranger, conveys no title 
 to vendee, and the real owner may replevy it. Coombs v. Gordon, N. S. xi. 
 595. 
 
 54. Where property which is sold under a decree in equity is represented 
 as of indisputable title, and it turns out to be defective, the court will require 
 the trustee to refund the purchase-money even after ratification. Preston, 
 Trustee v. Freyer, N. S. xiii. 258. 
 
912 TITLE— TOET. 
 
 65. Possession talten tinder a parol gift is adverse in the donee against the 
 donor, and if continued for fifteen years perfects the title of the donee as 
 against the donor. Clarh el ux. v. Gilbert, N. S. xiii. 19. 
 
 56. If the company abuses its power, still, after resale and oonTeyanoe, 
 the title of the vendee is indefeasible. Walsh v. Burton, N. S. xiii. 654. 
 
 57. It is a question for the jury to determine whether the title to property 
 passed at time of sale, where the vendor agreed to haul the goods to a cer- 
 tain place. Dyer v. lAbbij, N. S. xiii. 127. 
 
 58. When anylhing remains to be done by either or both the parties to a 
 contract of sale, before delivery, the title does not pass. Gibbs v. Benjamin, 
 N. S. xiii. 93. 
 
 59. If the vendor makes an unconditional delivery of the article, a bon& 
 fide purchaser from the vendee acquires a valid title. Bernard et'al. v. Camp- 
 bell, N. S. xiii. 263. 
 
 60. No title passes when a sale is procured by fraud. Id. 
 
 61. Enjoyment of mill property under a prescriptive right cannot be dis- 
 turbed or restrained, except on the ground of public nuisance. Oity v. 
 Erickson, N. S. vi. 123. 
 
 62. A purchaser by payment of price, acquires the entire equitable title; 
 vendor has no real interest, and only holds the naked legal title in trust for 
 the purchaser. Fonda v. Sage, N. S. vi. 64. 
 
 63. No title to goods passes when possession is obtained by gross fraud. 
 Stoutenburgh v. Konkle, N. S. vi. 575. 
 
 64. Vendor in a cash sale can reclaim the goods, upon refusal of vendee 
 to pay for same, and no title passes. Id. 
 
 TITLE TO MANUFACTURED ARTICLE. 
 
 1. The manufacture of an article, pursuant to the order of a customer, 
 does not transfer the title. Moody v. Brown, 0. S. i. 431. 
 
 2. Neither does the tender of the article, when so manufactured, transfer 
 the title. Id. 
 
 3. Neither does the leaving with the customer, against his will, of the 
 article so manufactured and tendered, transfer the title. Id. 
 
 4. To pass the title, there must be an acceptance, either express or im- 
 plied. Id. 
 
 5. An action against- the customer, as for an article sold and delivered, 
 cannot be maintained by the manufacturer, unless the- article has been 
 accepted. Id. 
 
 6. An exception to this rule obtains when the customer employs a superin- 
 tendent, and pays for the property by instalments as the work progresses. Id, 
 
 TORT. 
 
 1. Action will lie for tort committed abroad notwithstanding the pendency 
 of proceedings in the foreign country for the same cause oif action, Seymour 
 T. Scott, N. S. iii, 438. 
 
 2. For tort of the wife committed in the presence or by order of the hus- 
 band, the latter alone is liable, and after his death no action survives against 
 the wife for such tort. Goulding v. Davidson, N. S. iii. 34. 
 
 3. A party is liable for tort committed by his co-partner in connection 
 ■with the general object of the firm. Lucas v. Bruce, N. S. iv-. 95. 
 
 4. One receiving money on trust and wholly neglecting duty, converts it, 
 is liable in tort, or money had and received. Eeeside v. Reeside, N. S. v. 247. 
 
 5. Judgment in contract bars subsequent action of tort for the same sub- 
 ject-matters. Smith y.Way, N. S. v. 126. 
 
 6. In tort, it is in discretion of jury to allow interest or not. Black v. R. 
 R. Co., N. S. V. 573. 
 
 7. Plaintiff in tort becomes a creditor on obtaining judgment. Ralls v. 
 Sands, N. S. vi. 187. 
 
 8. Tort will lie against common carrier for refusal to deliver goods for 
 non-payment of additional charge for freight. Isham v. Greenham, 0. S. iii. 
 498. 
 
 9. A suit in contract is a waiver of the tort. Thompson v. Howard, N. S. 
 xiv. 590. 
 
 10. Will lie for value of goods tortiously taken and sold. Harpending v. 
 Shoemaker., N. S. ii. 248. 
 
 11. Where the law imposes upon a party an obligation which he neglects, 
 
TORT— TOWN. 913 
 
 and damage results to another, an action on the case founded in tort lies. 
 Philada., W. ^ B. R. R. Co. v. Cousle, N. S. xiii. 784. 
 
 12. The fact that fire from a railroad was first communicated to a neigh- 
 bor's land, and then to the plaintiff's timber, does not affect the railroad's 
 responsibility to plaintiff. Id. 
 
 13. In action for tort after failure of proof that the taking was wrongful, 
 plaintiff should be nonsuited — he cannot amend by changing the action to 
 assumpsit. Ransom T. Wetmore, N. S. ii. 765. 
 
 14. When action of damages for tort will lie against public officer, acting 
 by independent authority. Clark v. Miller, N. S. vi. 443. 
 
 1.5. Action of tort, in nature of guare clausum fregit, is a personal action. 
 Way V. Dame. N. S. vi. 126. 
 
 16. An action for a joint tort against two or more cannot in the admiralty 
 be united witli a tort against one separately, if the objection be taken. 
 Roberts v. Sko/field, 0. S. viii. 156. 
 
 TOTAL LOSS. 
 
 The American doctrine of a technical total loss doubted. The Marine Dock 
 and Mutual Ins. Co. v. Goodman, 0. S. iv. 481. 
 
 TOWAGE. 
 
 1. A steam tug rendered towage and salvage service all winter, her owners 
 are entitled to full remuneration. Virden v. The Brig Caroline, 0. S. vi. 222. 
 
 2. A person engaged in the business of towing boats is liable for damages 
 arising from the negligence of his agent, who has charge of the tov/ing ves- 
 sels, where the parties have not agreed to the contrary. Ashmore y. Pennsyl- 
 vania Steam-Towing and Transportation Company, 0. S. ix. 721. 
 
 8. The agent of a towing company made an agreement with the master of a 
 canal boat to tow the boat from Bordentown to the Schuylkill, and back again, 
 at the risk of the master and owner, the master agreeing to keep a compe- 
 tent man at the helm of his boat at all times while the tow was in motion, 
 and guaranteeing that the boat should be seaworthy and reasonably fit for 
 the trip. Held, that, under this agreement, if the boat to be towed was sea- 
 worthy, the only risks that the towing company were exempt from were the 
 risks incidental to ordinary careful navigation, and they were not exempt 
 from liability for damages caused by the negligence or unskilfulness of their 
 agents or servants. Meld, also, that an action for tort was the proper remedy, 
 the contract being set out in the declaration as matter of inducement. Id. 
 
 4. The failure of the master and owner of the canal boat to perform the 
 stipulations of the agreement do not affect the liability of the party tnwing 
 the boat, unless such failure to perform contributed to the accident. Id. 
 
 5. A common carrier may make a contract limiting or lessening his respon- 
 sibility, but ought not to be permitted to make a contract that will exempt 
 him from liability for damages occasioned by his own or his servants' negli- 
 gence or misconduct. Id. 
 
 6. Whether persons engaged in towing boats are considered common 
 carriers, and should be held responsible as such, for the boat towed and its 
 cargo. Query. Id. 
 
 TOWN. 
 
 1. How bonds issued by towns on their own credit, to be authorized. Peo- 
 ple ex rel. Rose v. Supervisors of Livingston, N. S. v. 60. 
 
 2. Duty of municipal corporation to open and repair streets, sidewalks, 
 and bridges. City of Joliet v. Yerley, N. S. v. 445. 
 
 3. Towns owe a statutory duty to travellers, for the breach of which the 
 party injured may maintain an action, to remove from the margins of their 
 highways objects unlawfully deposited there, which, by their frightful appear- 
 ance, make it unsafe to travel the road vrith ordinary horses. Morse v. Town 
 of Richmond, N. S. viii. 81. 
 
 4. The duty of the town to remove the obstruction from the highway does 
 not attach until they know of it, or ought to know of it, nor while it is upon 
 the highway a reasonable time for the purposes of transportation over it. Id. 
 
 5. Though a town is not bound to work the whole width of the road where 
 the travel does not require it, yet they have a right to control the whole width 
 and have a corresponding duty. If they suffer objects to remain deposited 
 
 68 
 
gi4 .TOWN. 
 
 on the margin which, by their frightful appearance, make the whole road un- 
 safe, they will be liable for such accidents by fright as are the natural result 
 of their neglect. Morse v. Town of Richmond, N. 8. viii. 81. 
 
 6. Towns are held to a higher responsibility with reference to removing 
 deposits of private prop&rty which are placed on the road without right and 
 obstruct public travel by their frightful appearance, than with reference to 
 removing equally dangerous objects which either are incident to the nature 
 of the soil and country, or are thrown upon the margin in process of con- 
 structing the road. Id. 
 
 7. The selectmen of a town may appoint an agent to build or repair roads 
 or bridges. Dow v. Epping, N. S. viii. 445. 
 
 8. It is the duty of towns to build and repair their roads in such a way as 
 to be reasonably safe from such accidents as might justly be expected to occur 
 on their roads. Hodge y. Town of Bennington, N. S. xi. 50. 
 
 9. Selectmen of a town in New Hampsliire have not authority to borrow 
 money. Rich v. Errol, N. S. xi. 723. 
 
 10. The bon& fide holder of a note issued by the selectmen of a town, must 
 show that it was authorized by a vote of the town. Id. 
 
 11. The charter of incorporation of a town gives no title to the land in the 
 town to the municipal body. South Hampton v. Fowler, N. S. xii. 669. 
 
 12. Votes of a town in possession of land, showing a claim of title are ad- 
 missible, but where there is no evidence of possession they are not. Id. 
 
 13. Towns may maintain case for the obstruction of highway they have 
 built. Laconia v. Gilman, N. S. xiv. 704. 
 
 14. A town is liable for injuries from the highway being of insufficient 
 width. Fulsome v. Town of Concord, N. S. xiii. 714. 
 
 15. The mere slippery condition of a sidewallc arising from the ordinary 
 action of the elements (as ice and snow) is not a defect which renders a town 
 liable under the statutes of Wisconsin. Perkins v. City of Fond du Lac, N. S. 
 xiii. 715. 
 
 16. A person must be in the use of a highway for the purpose of travel, in 
 order to be entitled to recover damages on account of its insufficiency. Sykea 
 V. Town of Pawlet, N. S. xi. 59. 
 
 17. While plaintiif was injured while lawfully in a street, by a falling pole, 
 the town will be liable whether the neglect to remove the pole was wilful or 
 not. Norristown v. Moyer, N. S. xi. 199. 
 
 18. There is a distinction between private citizen and incorporated towns 
 and cities. Mayor, Sfc. v. Schner, N. S. xii. 729. 
 
 19. Townships are not liable in their corporate capacity for failure to keep 
 highways in repair, where they are established as merely divisions of coun- 
 ties, iiussell, Adm'r v. Town of Steuben, N. S. xii. 191. 
 
 20. A town is liable for damages occasioned by reason of the insufficiency 
 and want of repair of a private way which has been temporarily adopted in 
 the place of the highway rendered impassable by a freshet. 'Dickinson v. 
 Rockingham, N. S. xii. 731. 
 
 21. A judgment recovered against for injuries, the town is estopped to 
 deny facts found against it in former action. Lindsey v. Town of Danville, N. 
 S. xiii. 713. 
 
 22. Township authorities have a special interest in highways beyond that 
 of the public at large, and may file bill in their corporate name to prevent 
 their destruction. Township of Greenwich v. Easton ^ Amboy i?. iB., N. S. xiii. 330. 
 
 23. When liable for injury from defective sidewalk. Dewey v. Detroit, N. 
 S. vi. 638. 
 
 24. Owner of land adjoining may stop drainage of water from highway on 
 to his land. Franklin M.Fisk, N. S. vii. 61. 
 
 25. Discretion as to acceptance of streets is exclusively for the corporation. 
 Pope V. Union, N. S. vii. 701. 
 
 26. An action of assumpsit may be brought against a city or town to re- 
 cover a reward offered for the apprehension of a criminal. Janvririy. The 
 Town of Exeter, N. S. viii. 670. 
 
 27. The right of a person who has enlisted, on a promise to be paid such 
 bounty as a town may vote, cannot be defeated by a subsequent vote to re- 
 scind. Haven v. Town of Ludlow, N. S. viii. 502. 
 
 28. A town summoned as trustee cannot apply tax due by the defendant 
 
TOWN— TEADE-MAEK. 915 
 
 cestui que trust, to the payment of a debt which the town owes said defendant. 
 Johnson v. Howard, N. S. viii. 638. 
 
 29. A town is liable for the destruction of property by a mob, where it 
 . could, or ought to h:xve prevented it, Chadbourne v. New Castle, N. S. ix. 517. 
 
 30. The right of legislature in respect to public corporations, which exist 
 for public purposes alone, under proper limitations, to restrain, modify, en- 
 large, or change them. Inhabitants of N. Yarmouth v. Shillings, 0. S. viii. 307. 
 
 TOWNSHIP. 
 
 In proceedings to erect new township, or change the limits of old ones, an 
 omission to give notice to the inhabitants is fatal. Case of Norwegian Town- 
 ship, 0. S. i. 442. 
 
 TRADE. 
 
 1. Contract in restraint of trade in particular locality is valid. McGlurg's 
 Appeal, N. S. viii. 630. 
 
 2. Trade fixtures and buildings for trade, no matter how strongly attached 
 to the soil, or firmly embedded in it, are treated as personal property. North- 
 ern Central R, R. Co. v. Canton Co., N. S. viii. 540. 
 
 TRADE-MARK. 
 
 1. A manufacturing company will be protected in the use of a certain trade- 
 mark, though part of the trade-mark consists of a family name. Meriden 
 Manufg. Co. v. Farker, N. S. xiii. 153. 
 
 2. Equity will restrain the use of the same name in so far as it forms a 
 material part of the trade-mark, and will necessarily injure the company, 
 even though another may acquire the right .of that name from parties to 
 ■whom it legitimately belongs. Id. 
 
 3. It is not every use of the name, however, that will be held to necessarily 
 infringe the trade-mark, or that will be restrained by injunction. Id. 
 
 4. Though equity will not protect a trade-mark which deceives the public, 
 it is not every erroneous impression which may be drawn from the use of a 
 trade-mark that will be sufficient to destroy its validity. Id. 
 
 5. The employment of a family name as a component part of a trade-mark 
 is no fraud upon the public, though the family does not actually make the 
 articles bearing the name, provided they are the result of their skill and ex- 
 perience. Id. 
 
 6. The complainant, a company engaged in manufacturing plated forks and 
 spoons, acquired the right to the use of the trade-mark " 1847 Rogers Bros. 
 A. 1." Subsequently, the respondent, by an arrangement wilh three broth- 
 ers named Rogers, manufactured plated spoons marked "C. Rogers Bros. A. 
 1." Held, that this was an infringement of cooaplainant's trade-mark, and 
 that the use of the term "Rogers Bros." should be restrained. Id. 
 
 7. The name of an incorporated town or borough cannot be employed as a 
 trade-mark, even if adopted and used as such prior to its use in a geograph- 
 ical sense. Glendon Iron Co. v. Vhler, N. S. xiii. 543. 
 
 8. A trade-mark, which is merely descriptive of the kind of articles or 
 goods to which it is applied, is not a trade-mark in a legal sense. Sherwood 
 V. Andrews, N. S. v. 588. 
 
 9. A trade-mark, to entitle an assignee to protection in its exclusive use, 
 must indicate by appropriate words, as "executor," "assignee," or "suc- 
 cessor," his relation to the original proprietor. Id. 
 
 10. The trade-mark of a defunct corporation does not descend to the stock- 
 holders at the time of its dissolution. Id. 
 
 11. One tradesman has no right to use the trade-marks of another. Stone- 
 braker v. Stonebraker, N. S. a. 543. 
 
 12. Trade-marks are property. Id. 
 
 13. The use of trade-marks, without the consent of the owner, will be re- 
 strained by injunction. Id. , , -u ■, 
 
 14. A trade-mark is not different in principle from the marks or brands 
 owners of live-stock, which run at large, put upon them. The object is the 
 same, and that is to distinguish the property bearing it from that of another. 
 Candee v. Deere, N. S. x. 694. 
 
 16. A proprietor can have but one trade-mark, and it must be in some 
 manner attached to the article manufactured. Id. 
 
916 TEADE-MAJIK— TEANSIT. 
 
 16. It must have a practical existence, not resting in the mind of the owner, 
 hut stamped, or impressed, or attached in some way to the article itself. 
 Candee v. Deere, N, S. x. 694. 
 
 17. It is the actual use of the trade-mark, affixed to the merchandise of 
 the manufacturer, and this alone, which can impart to it the elements of 
 property. Id. 
 
 18. The mere declaration of a person, howeyer long, and -however exten- 
 sively published, that he claims property in a word as his trade-mark, cannot 
 even tend to make it his property. Id. 
 
 19. The law is well settled that a circular, price-list, or advertisement, no 
 matter how frequently repeated, cannot constitute a trade-mark. Id. 
 
 20. When words have acquired a generic meaning, one manufacturer has 
 the same right to use them that another manufacturer has. Id. 
 
 21. There can be no property in letters and numbers, or a combination of 
 letters and numbers, where they are used to denote the various sizes and 
 qualities and patterns of the article manufactured. Id. 
 
 22. Monopolies are odious, and a manufacturer cannot acquire property in 
 the name of a town, so as to prevent another manufacturer from doing the 
 same business in the same town, and from advertising the fact, so as to let 
 the world know it. Id. 
 
 23. A trade-mark, having upon it a false statement, which did not, and 
 could not produce any effect upon the purchasers of the article, is neverthe- 
 less so tainted by the falsehood, that equity refuses to protect it. Palmer v. 
 Harris, N. S. viii. 137. 
 
 24. A trade-mark for a brand of segars, manufactured in New York, had 
 upon it, in Spanish word§, which interpreted into English, mean: "Factory 
 of segars from the best plantations de la Vuelta Abajo, caHe del Agua, Ha- 
 bana." Equity refused, on the ground of the falsehood, to enjoin a printer 
 from counterfeiting the device, and supplying the trade with his imitations. Id. 
 
 25. The complainant, having first apprdpriated and applied the name of 
 " Charter Oak" to a certain pattern of stoves manufactured and sold by him, 
 will be protected by injunction in the exclusive use of the name as a trade- 
 mark. Filley V. Fassett, N. S. viii. 402. 
 
 26. Any contrivance, design, device, name, or symbol, which points out 
 the true source and origin of the goods to which it is applied, or which des- 
 ignates the dealer's place of business, maybe employed as a trade-mark, and 
 the right to its exclusive use will be protected by the courts. Id. 
 
 27. The appropriation of any prominent, essential, or vital feature of a 
 trade-mark by another is an infringement. If the trade-mark is simulated 
 in such manner as probably to deceive customers, the piracy may be checked 
 by injunction. Id. 
 
 28. The statute of Missouri, providing for the iiling of a description of any 
 trade-mark sought to be used, was not designed to abridge or weaken the 
 right to any trade-mark which may be acquired in the usual way. It does 
 not authorize the appropriation by one party of a trade-mark the title and 
 ownership of which belongs to another. Id. 
 
 29. But it was held that they might maintain separate suits. "The cases 
 seem to have established," said Wood, V. C, "that when two or more were 
 jointly entitled, or had a joint interest, they might, and probably must, join 
 in the same action; but, when the injury affected the two separately, then 
 each party might, and, in some cases, must, sue separately." Dent v. Turpin, 
 0. S. IX. 703. 
 
 30. Infringement should be enjoined where the defence is the fraud or im- 
 position of plaintiff, and the evidence is conflicting, but, if the imposition is 
 flagrant, the court should suggest this defence. Smith v. Woodruff, N. S. vii. 191. 
 
 31. Label. — Injunction to restrain printing of, dissolved. Farina y. Sil- 
 verlock, 0. S. y. 315. 
 
 TRANSFER. 
 
 A check drawn on a bank, by a depositor who has funds therein, is to be 
 regarded in law as it is in commercial usage, as a transfer to the payee or 
 his assignee of the funds drawn for. Ambler v. State Bank, 0. S. viii. 393. 
 TRANSIT. 
 
 Stoppage of goods in. See Sioppaqe in Teahsiiu, 
 
TRANSLATION^TEESPASS. 917 
 
 TRANSLATION. 
 
 1. The translation of a French work in France into a foreign language is 
 a breach of the copyright. Lumley r. Bayard, 0. S. i. 499, and Legal Miscel- 
 lany, 0. S. i. 503. 
 
 2. Of a book, how far an infringement of copyright, Stowe v. Thomas. 0. 
 S. ii. 210. 
 
 3. A translation can, in no correct sense, be called a, "copy" of a book. 
 Id. 
 
 TRAVELLER. 
 
 The right of travellers to use any pai-t of the highway is not restricted by 
 the limitation of the liability of the town in case of accident. Dickey t. 
 Maine Telegraph Co., 0. S. viii. 358. 
 
 TREASURER OF MANUFACTURING CO. See Coeporation. 
 
 TREASURE TROVE. 
 
 A block of wood was sold at an administrator's sale, without the knowl- 
 edge of eitlier purchaser or seller that it contained, as was afterwards dis- 
 covered, moneys, notes, and other valuables to a large amount. Held, that 
 no title to the treasure passed to the purchaser. Hutmacher v. The Adminis- 
 trators of Harris, 0. S. ix. 410. 
 
 TREASURY DEPARTMENT OF THE U. S. 
 
 As to prosecution of claims due by, see The United States v. Smith, 0. S. v. 
 268 ; see Claims. 
 
 TREASURY NOTES. See Constitutional Law, Legal Tendek. 
 
 1. Congress may issue treasury notes and make them lawful money and a 
 legal tender. Shollenberger v. Brinton, N. S. vi. 636. 
 
 2. Payment in U. S. treasury notes is a good tender, though contract be 
 for current gold coin. Appel v. Wollman, N. S. vi. 248. 
 
 3. The passing of counterfeit treasury notes may be an offence against the 
 United States, and also against an individual state. United States v. Wells, N. 
 S. xi. 424. 
 
 TREATY. 
 
 The United States and Great Britain having, by the treaty of 1783, divided 
 and appropriated the lakes and their connecting waters, the courts of neither 
 can consider the portion of these waters within the limits of the other as 
 differing in any respect from the lands. The People v. Tyler, 0. S. viii. 403. 
 
 TREES. 
 
 A sale of growing trees otherwise absolute, is not rendered conditional by 
 stipulation as to time of removal. Hoit v. The Straiten Mills, N. S. xiv. 826. 
 
 TRESPASS. 
 I. Trespass in General, and what Constitutes. 
 
 1. All who aid in, are principals. Green v. Kennedy, N. S. vi. 127. 
 
 2. Will not lie by vendee for the asportation and conversion of property 
 not in the possession of the vendor at the time of the sale. Wilson v. Wilson, 
 N. S. xii. 736. 
 
 3. Military officers may take private property for public use without 
 making themselves trespassers. Bryan v. Walker, N. S. ix. 583. 
 
 4. An abuse of authority given by law makes a party a trespasser ab initio. 
 Sterling v. Warden, N. S. xii. 669. 
 
 5. A count, in a suit against a sheriff on his official bond, is not a count in 
 trespass, though it allege that the authority of the sheriff was void or illegal. 
 Price V. Stone, N. S. xiii. 61. 
 
 6. One who commits a wilful and malicious trespass upon another's prop- 
 erty will be held responsible for all injury resulting to third parties in con- 
 sequence thereof. Hunger v. Baker, N. S. xiii. 199. 
 
 7. A land-owner who has had the actual location of certain land for more 
 than twenty-five years, is entitled to an injunction to restrain another from 
 building on the land, until he establishes his right at law. Southmayd v. 
 McLaughlin, N. S. xiii. 199. 
 
 8. An officer who sells attached property without the notice required by 
 law, becomes a trespasser ab initio. Sawyer ■^.Wilson, N. S. xiii. 261. 
 
 9. Notice of sale, defective from want of sufficient time, is not cured by 
 
918 TEESPASS. 
 
 a postponement to a day sufficiently remote. No valid sale can be made at 
 the adjournment. Sawyer ■^.Wilson, N. S. xiii. 261. 
 
 10. In trespass q. c. /. when the declaration counts upon a single act of 
 trespass which is justified, the plaintiff cannot traverse it, and new assign. 
 Spencer y. Semis, N. S. xiii. 654. 
 
 11. The amount of force one has a right to employ in self-defence, depends 
 on the perilous condition he has reason to suppose himself in. Edwards v. 
 Leavitt, N. S. xiii. 719. 
 
 12. Evidence showing the animus of the defendant towards plaintiff, is ad- 
 missible in trespass for assault and battery. Id. 
 
 13. Exemplary damages may be recovered in trespass. Id. 
 
 14. Cannot be maintained by tenant in common against his co-tenant, 
 unless in case of unequivocal ouster. Filbert v.Hoff, N. S. ii. 502. 
 
 15. Will lie for erection of a bay-window over land of adjoining owner, 
 although it is used as a highway. Codman et al. v. Evans, N. S. ii. 699. 
 
 16. In action for trespass on land plaintiff must show actual possession in 
 himself or a judgment awarding it to him. Cowenhoven v. Brooklyn, N. S. ii. 
 506. 
 
 17. Sect. 4, Art. 11, of the constitution of the state of Missouri, which in 
 substance exempts persons from liability for acts done during the recent 
 civil war, by virtue of military authority vested in them by the government 
 of the United States, or in pursuance of an order received from any person 
 vested with such authority, is valid and protects from prosecution or action 
 all who can show for their acts the authorization of a military officer, acting 
 under the commander-in-chief of the army of the United States. Clark v, 
 Dick, N. S. ix. 739. 
 
 18. Where, in an action of trespass, the defendant pleaded, in substance, 
 that civil war existed; that martial law was in force, and that the alleged 
 trespasses were compulsory assessments, made upon the plaintiff or his 
 property, by virtue of au order of the commanding general of the army in 
 that department. Held, that the facts pleaded brought the case within the 
 above mentioned section of the constitution of the state, under which they 
 were a good defence to the action. Id. 
 
 19. That provision of the constitution is not void because of its retrospec- 
 tive operation, nor because other provisions of the constitution may prohibit 
 the legislature from passing retroactive statutes. Id. 
 
 20. Nor does it conflict with the national constitution limiting the power 
 of the states; nor is it rendered invalid by the fifth amendment to the con- 
 stitution, as that is a limitation on the powers of the general government, 
 and not on those of the states. Id. 
 
 21. If jury in trespass quare clausum, find a special verdict that the, title is 
 in defendant, he is entitled to a general verdict. South Hampton v. Fowler, 
 N. S. xiv. 395. 
 
 22. Lies for the continuance of a wrongful erection, even after satisfaction 
 of a judgment for its erection. Russell v. Brown, N. S. xiv. 527. 
 
 23. Owners of animals kept in common are jointly liable for a trespass 
 committed by them. Jack v. Hudnall, N. S. xiv. 760. 
 
 24. Equity will restrain a trespass of a permanent nature. Masson ^ 
 Besanson's Appeal, N. S. xii. 402. 
 
 25. In trespass, evidence is admissible to show that the deed for the loots 
 in quo, though dated before, was not delivered until after the issuing of the 
 writ. Maxwell v. Mitchell, N. S. xiii. 128. 
 
 26. Under the code of Maryland, a married woman may sue in trespass de 
 bonis asportalis, by her next friend, without joining her husband. Strasberaer 
 v.^ariflj-.N. S. xiii. 258. 
 
 27. In an action for damages for trespass de bonis asportalis, the general rule 
 for the measure of damages is the value of the goods at the time of the 
 taking. McEnroy v. Byer, N. S. iv. 166. 
 
 28. Semble, the tendency has been to cease to observe the distinction be- 
 tween trespass and waste. Lowndes v. Bettle, N. S. iv. 169. 
 
 29. The Eebel army, during their occupation of a portion of the United 
 States, were mere trespassers. Lucas v. Bruce et al., N. S. iv. 95. 
 
 30. Extent of damages in trespass for removing property from attaching 
 officer. Houston v. Howard, N. S. vi. 438. 
 
TRESPASS. 919 
 
 31. Trespass q. c.f. survives to the executor or administrator. Railroad v. 
 Moye, N. S. vi. 507. 
 
 32. No action will lie against master for the wilful and malicious trespass 
 of servant. R. R. Co. v. Baum, N. S. vi. 717, 
 
 33. Vendee entering under contract to purchase and failing to fulfil it, may 
 be treated as a trespasser or tenant-at-will. Woodbury v. Woodbury, N. S. 
 vii. 318. 
 
 34. Bill to restrain trespasses must allege that respondent is insolvent or 
 that it cannot be compensated by damages. Weigel v. Walsh, N. S. ix. 647. 
 
 36. In an action of trespass, a plea attempting to justify an act under the 
 belligerent powers of the Confederate States is defective if it fails to show 
 the defendant was a soldier. Bayless v. Estes, N. 8. x. 196. 
 
 36. If vendor retakes the goods improperly by replevin, be may be treated 
 as a trespasser. Holbrook v. Vuse, N. S. iv. 602. 
 
 37. In the action of trespass vi et armis for debauching a daughter, the 
 gravamen is the illegal entry of the seducer upon the parent's i^remises. Mar- 
 cus C. Parker v. Rebecca Meek, Sr., 0. S. v. 493. 
 
 38. Partners are liable for trespass by themselves or their employees in the 
 conduct of their business. McKnight v. Ratcliff, N. S. iii. 810. 
 
 39. Trespass will lie for an invasion of the exclusive right granted by the 
 legislature to one citizen to plant oysters in the bed of a stream. Paul et al. 
 ■v.Hazleton, N. S. xiv. 259. 
 
 II. Assault and Impeisonment. 
 
 40. A person resisting one specially authorized to serve process, if cogni- 
 zant of the fact, is liable in an action of trespass for an assault aud battery. 
 Leach ■•!. Francis, N. S. viii. 511. 
 
 41. The plaintiff was unlawfully seized by the defendants, carried thence 
 three miles and confined in a room several hours, and thence to a town meet- 
 ing, where he took an oath to support the constitution of the United States, 
 and was discharged. In the trial of an action of trespass, based upon these 
 facts, the plaintiff claimed, 1. Actual damages resulting from his seizure and 
 detention ; 2. Damages for the indignity thereby suffered ; and 3. Punitive 
 damages. Held, 
 
 42. That the plaintiff was entitled to recover full pecuniary indemnity for 
 the actual corporeal injury received, and for the actual damages directly re- 
 sulting therefrom, such as loss of time, expense of cure, and the like. Pren- 
 tiss V. Shaw, N. S. viii. 712. 
 
 43. When a party is assaulted, the degree of force which he mny employ 
 in repelling the assault depends to some extent upon the known character of 
 the assailant, whether peaceable or quarrelsome. Harrison t. Harrison, N. S. 
 xi. 44. 
 
 44. The defendant, the minor son of S., was directed by his father to see 
 that no one interfered with an aqueduct upon his father's premises, and hav- 
 ing learned that the plaintiff, with whom his father had had trouble about 
 the aqueduct, was about to interfere with it, went to the boundary of the 
 land where the aqueduct was, and but a few feet from it, and found the plain- 
 tiff about to enter upon the land, on his way to the aqueduct. The defend- 
 ant forbade the plaintiff's entering upon the land/; the plaintiff persisted in 
 doing 80, and sprang over the fence in a threatening manner. Held, that de- 
 fendant might rightfully resist the further approach of the plaintiff, using no 
 unnecessary force. Id. 
 
 45. The extortion of a confession of larceny by threatening one with hang- 
 ing constitutes an aggravated trespass, and renders the party liable in dam- 
 ages. Stallings v. Owens, N. S. a. 133, 
 
 46. One directing imprisonment of another is guilty thereof. Ch-een v. 
 Kennedy, N. S. vi. 127. 
 
 47. Fact that officer who directed it violated his duty in so doing, no 
 defence. Id. 
 
 48. Where B. seized A. by the arm and swung him violently around two 
 or three times, then letting him go, and A. having thus been made dizzy, in- 
 voluntarily passed rapidly in the direction of and came violently against C, 
 ■who instantly pushed him away, and A. then came in contact with a hook, 
 and sustained an injury. Held, that A. might maintain trespass vi et armis 
 against B. Rickle v. Freeman, N. S. xi. 692. 
 
 49. There was no error in the following instructions to the jury: "That 
 
920 TEESPASS. 
 
 they should inquire who was the first actor or the procuring cause of 
 the injury to A.; that B. would he liable if the wrongful force which he gave 
 
 A. carried him on to the hook, or if such force combined with the new force 
 given to him by C, produced the result; but if the jury should find that the 
 injury received by A. resulted entirely from the push of C. alone, unassisted 
 by the act of B., then B. would not be liable, or in other words, if the original 
 force given to A. by B. had ceased, or time was given to C. for reflection and 
 deliberation before he gave his push, then B. would not be liable ; that the 
 jury should determine whether the force, originally commenced by B., did at 
 any time cease, and whether it was not directly continued up to the time A. 
 struck the hook by the direct agency of B., C. lending his aid wittingly or 
 unwittingly to the injury, or whether C, by pushing him from his person, did 
 more than to act in self-defence, and was not justified under the circum- 
 stances, in order to save his person and himself from present danger ; that 
 the jury should determine also, whether from the time A. was first seized by 
 
 B. and until the injury was done he could exercise any self-control over 
 his own person, or could in any way have prevented what happened to 
 him." Richie v. Freeman, N. S. xi. 692. 
 
 •50. Where an injury is the result of two occurring causes, one party in 
 fault is not exempted from full liability for the injury, although another party 
 may be equally culpable. Id. 
 
 III. To Peesonal Pbopertt. 
 
 51. In trespass for killing sheep, the accused is not entitled to have the 
 case proved beyond a reasonable doubt. Burnett v. Ward, N. S. ix. 579. 
 
 52. Action for entering upon and crossing plaintiff's barge, moored to wharf 
 alongside of a navigable river in front of a public quay for landing, so that it 
 was impossible for defendant to land without passing over the barge. See 
 Eastern Counties R. R. Co. v. Darling, 0. S. vil. 704. 
 
 53. Trespass is a proper form of action against the owner of a dog, which 
 has killed the plaintiffs sheep ; but it is necessary to prove that the defendant 
 knew of his dog's vicious propensities, whether the action be at common 
 law, or under the statute. Campbell t. Brown, 0. S. i. 125. 
 
 54. In trespass for taking personal property, where the property has be»n 
 taken without malice and under a claim of right, and the controversy relates 
 only to the title, the rule of damages is the value of ihe property at the time 
 of the taking, and interest from that time to the time of the judgment. Oviati 
 V. Pond, N. S. i. 188. 
 
 55. Where in such a case the plaintiff claimed that, by the taking of the 
 property, he had been broken up in his business, and the judge charged the 
 jury that the defendant must make the plaintiff good for all the actual dam- 
 age sustained by him at the defendant's hands, resulting directly and natu- 
 rally from the injury, a new trial was granted on motion of the defendant. Id. 
 
 56. Under the 27th section of the statute with regard to intemperance, 
 which provides that "no action shall be maintained for the recovery or pos- 
 session of spirituous liquors, or the value thereof, except in cases where per- 
 sons owning or possessing such liquors, with lawful intent, may have been 
 illegally deprived of the same," there can be no recovery in an action of 
 
 , trespass for the value of liquors taken where the same were kept for illegal 
 sale. Id. 
 
 57. Liquors kept for sale contrary to law, are regarded by the law as hav- 
 ing no lawful value, or value for lawful purposes. Id. 
 
 58. Where property is taken by a trespasser and while in his possession is 
 destroyed, the trespasser is liable for the full value. Imcas v. Bruce et al N 
 S. iv. 95. ' ■ 
 
 59. Legislature cannot authorize summary confiscation of property as a 
 punishment for a mere trespass. Rockwell v. Nearing, N. S. vi. 378. 
 
 60. Assignee for benefit of creditors may maintain trespass against one who 
 interferes with the property. McQueen v. Babcock, N. S. iii. 701. 
 
 IV. To Real Estate. 
 
 61. A release to one of several joint trespassers will discharge all ; but it 
 must be a technical release, not merely a covenant not to sue, or other instru- 
 ment amounting to a release by implication merely. Bailey v. Berry N. S. 
 viii. 270. at ■ ■ 
 
TEESPASS. 921 
 
 62. The owner of personal property on the land of another, cannot com- 
 mit a trespass by entering and taking it away. Carpenter v. Ilalsey, N. S. xi. 62. 
 
 63. This rule does not apply to one entering in order to make a partition 
 fence. Id. 
 
 64. A wrong-doer cannot dispute the title of one in the possession of land 
 and claiming as owner, in an action against him for cutting down and carry- 
 ing away timber. Nelson t. Mather, N. S. viii. 447. 
 
 65. In an action of trespass for an alleged injury to the plaintiff's wall by 
 inserting joists into it, evidence by the defendant that the wall was so used 
 by him in the erection of an adjoining building under an express parol agree- 
 ment with the plaintiff, is not admissible under the general issue plea, in bar 
 of the action, but is admissible in mitigation of damages. Hamilton v. Win- 
 dolf, N. S. xii. 286. 
 
 66. The Illinois statute of forcible entry and detainer, by necessary con- 
 struction, forbids a forcible entry, even by the owner, upon the actual posses- 
 sion of another. Such entry is, therefore, unlawful, and is a trespass for 
 which an action of trespass will lie. Reeder v. Purdy, N. S. vi. 104. 
 
 67. Where an action of trespass is brought for a mere entry by a landlord 
 upon the possession of a tenant holding over, unaccompanied by any trespass 
 upon either the person or personal property of the plaintiff, and merely con- 
 structively forcible, only nominal damages oau be recovered ; the gravamen of 
 actions of this character being the trespass to the person and goods and chat- 
 tels of the tenant. Id. 
 
 68. The cases relating to the common-law right of an owner of land to enter 
 forcibly upon the unlawful possession of another, collected and discussed. Id. 
 
 69. Action of tort, in nature of quare ciausum /regit, is a, personal action. 
 Wai/ V. Bame, N. S. vi. 126. 
 
 70. The owner of a freehold has the right to repel intrusion by necessary 
 force. Harrison v. Harrison, N. S. xi. 44. 
 
 71. For entering of cattle, if defendant does not allege defective fence plain- 
 tiff not bound to prove it in good order. Sorenberger v. Houghton, N. S. vii. 703. 
 
 72. Qusere 01. Pr.^A person having the legal title to land, and the right to 
 the immediate possession of it, cannot maintain an action on the case against 
 a wrong-doer, who enters thereon and commits a trespass ; such an action 
 can only be brought by one having the actual possession oi^ the land, upon 
 which the wrongful entry has been made. Robertson y. Eodes, 0. S. i. 443. 
 
 73. The owner of property is not liable to a trespasser, or one who comes 
 on it by mere sufferance, for negligence, even though the act complained of 
 would be a nuisance in a public highway. Cox v. Farmers' Market Co., N. S. 
 ix. 103. 
 
 74. It is the duty of every person to take care of his own safety, and one 
 who ventures along a private passage-way at night, does so at his own risk. Id. 
 
 75. Between two market-houses there was a space of thirty feet wide, 
 running from one street to another. The space was paved both as a foot and 
 cartway, and formed an open passage-way from street to street, which the 
 public were in the habit of using, though both it and the market-houses were 
 private property. Held, that the passage was not a public highway. Id. 
 
 76. The purpose of the company in leaving open and paving the space 
 being plainly to accommodate customers resorting to the market-houses, fts 
 acquiescence in the general use of the passage-way by the public was not a 
 dedication to public use. Id. 
 
 77. A person going along this passage-way at night, after market hours, 
 fell down the steps of a basement opening on the passage-way. Held, that 
 the company were not liable for his injury. Id. 
 
 78. To a plea of justification in trespass qu. cl. fr. &o., that the acts were 
 rightfully done by defendants as tax collectors; plaintiff replied, that defend- 
 ants were not tax collectors, that no tax was due, and de injuria as to the 
 residue of plea. Held good. Curry v. Hoffman, 0. S. ii. 246. 
 
 79. Where a trespass is committed on real estate, the sheriff may go beyond 
 his bailiwick, into another county, to serve the process; and in such action, 
 the defendants will be answerable, not only for the injury to the real estate; 
 but also for injury done to personal property in the same trespass. Ouffy v. 
 Free, 0. S. 1. 125. 
 
 80. What it is. — A peaceable entry is not one merely unaccompanied with 
 
922 TEESPASS. 
 
 actual violence or treacli of the peace : tut every entry upon the sou of 
 another, in the absence of lawful authority, is a trespass, and it matters not 
 that there is no actual force, for the law in such case implies force. Norvell 
 V. Gray's Lessee, 0. S. i. 382. 
 
 81. Where a tenant in common erects a building upon a portion of the 
 land, it is suoh an exclusive appropriation to his own use as will entitle his 
 co-tenant to maintain trespass. Bennett v. Clemence et al., N. S. iii- 121. 
 
 82. Trespass cannot be maintained against a surveyor of highways for re- 
 moving fences that have been less than forty years within the location of a 
 highway. Whittier v. Mclntyre, M. S. xi. 595. 
 
 83. The owner of lands bordering a navigable stream, may maintain tres- 
 pass against one vfhq uses the land between the ebb and the flow for tishing 
 and using boats. Whiitaker v. Burnham, N. S. xi. 724. 
 
 V. When Injunction will be Gkanted to Prevent Anticipated Trespass. 
 
 84. Will not in general be restrained by injunction, but may be if it amounts 
 to nuisance. Morris Canal Co. v. Fagan, N. 8. vii. 700. 
 
 85. Equity will not enjoin a trespass merely because the defendant is pe- 
 cuniarily unable to respond in damages. Morgan v. Palmer, N. S. ix. 519. 
 
 VI. Pleadings, and Evidence in Trespass. 
 
 86. If declaration sets out matter so that it may be construed as a distinct 
 injury, or as aggravation only, defendant my treat it as the latter, and plain- 
 tiff, if not so intending it, must reassign. Grout v. Knapp, N. S. vii. 702. 
 
 87. The facts above mentioned, pleaded as a defence to the action, bring 
 the case within the two-years' limitation clause of the Act of Congress of 
 1863 (12 Stats, at Large, 75J), and this limitation is applicable to a case 
 originating in a state court, and by virtue thereof properly removed into the 
 Federal court. Clark v. Dick, N. S. ix. 739. 
 
 88. In an action of trespass, the defendant, under a pica of not guilty, may 
 show that the acts complained of were not unlawful. Smith v. Brazelton, N. 
 S. ix. 762. 
 
 89. In an action of trespass for leading or inducing Confederate soldiers to 
 cut down amd burn plaintiff's fences, timber, &c., during the late war, the 
 facts that the defendant was a sympathizer with the Confederate cause, that 
 he was seen to ride with Confederate officers across his own land and point 
 to land of plaintiff, and that timber, &c., was cut by the Confederate soldiers 
 off plaintiff's land but not off defendant's, is too uncertain and remote to sup- 
 port a verdict for damages. Id. 
 
 90. It seems that in such a case, the political opinions of the parties may be 
 given in evidence as part of a chain of circumstances tending to show defend- 
 ant's connection with the trespass. Id. 
 
 91 . The late civil war was a public war, and there was no difference in the 
 rights of the parties ; each had all the rights of an independent belligerent. 
 Id. 
 
 92. Among such rights is that of cutting down timber, &c., for the use of 
 the army, and, therefore, the pointing out of another's land or advising the 
 cutting of his timber, does not make the party doing so liable to an action of 
 trespass. Id. 
 
 93. The cases of Tost v. Stout, i Cold., 205 ; Davison v. Manlove, 2 Cold., 347 ; 
 Wood V. Slone, 2 Cold., 370, and Wright v. Overall, 2 Cold., 336, overruled or 
 modified. Id. 
 
 94. TJiat the declarations of the plaintiff, made prior to the unlawful arrest 
 and tending to provoke the same, not being a legal justification thereof, are 
 inadmissible in mitigation of the actual damages: but, 
 
 95. That such declaration made on the same day, and communicated to the 
 defendants prior to such arrest, together with all the facts and circumstances 
 fairly and clearly connected with the arrest, indicative of the motives, provo- 
 cations, and conduct of both parties, are admissible upon the question of 
 damages claimed upon the other two grounds. Prentiss v. Shaw et al N S 
 viii. 712. 
 
 96. An unrecorded deed under which the pl.iintiff never had possession 
 is not sufficient evidence to maintain an action of trespass quare clausum. Sav- 
 age V. Holyoke, N. S. xi. 464. 
 
 97. A plaintiff will not be denied the right to recover, in trespass quare 
 
TEESPASS— TEIAL BY JUEY. 923 
 
 clausum, the actual damages he has suffered, because their nature ia such 
 that they cannot be accurately measured. Gilbert v. Kennedy, N. S. xi. 609. 
 
 98. The rule that a party aggrieved by a trespass, cannot recover damages 
 resulting from his neglect to employ ordinary means to prevent or lessen 
 them, is simply one of good faith ; he may recover for all that reasonable 
 diligence would not have averted. Id. 
 
 99. In trespass on real estate an averment of consequential injury to per- 
 sonal property, is only matter of aggravation. Loeb v. Mathias, N. S. xii. 670. 
 
 100. A bill of particulars reading I. B. to L. T. S. to timber taken from the 
 S. W. 8, T. 12, R. 22, discloses an action on an account, and not one for tres- 
 pass on real estate. Bernestine v. Smith, N. S. xii. 726. 
 
 101. What is proper measure of damages in trespatss. Frelenheii v. Edmond- 
 son, X. S. V. 447. 
 
 102. Laying out of view what may be recovered in trespass for outrage or 
 oppression in the taking. McEnroy v. Dyer, N. S. iv. 166. 
 
 103. The defendant ofifered to prove that "plaintiff was reported to be — 
 and was in fact — a quarrelsome man, with a violent and uncontrollable tem- 
 per; and this was known to the defendant at the time of the affray," which 
 was excluded by the court. Held, that this evidence should have been re- 
 ceived. Harrison V. Harrison, N. S. xi. 44. 
 
 104. Joint trespassers may be sued together, or any of them separately, 
 and the non-joinder of the others is no defence. Bailey v. Berry, N. S. viii. 
 270. 
 
 10-5. An agreement with a portion of such joint trespassers to withdraw the 
 suit as to them, for a certain sum of money, will not discliarge the others. 
 Id. 
 
 106. Where the plea to a declaration for assault and battery is son assault 
 demesne and the replication de injuria, all the averments of the plea are put 
 in issue ; and if the plaintiff made the first assault, he can recover only for 
 the excess of force used in a defence. Harrison v. Harrison, N. S. xi. 44. 
 
 107. Parol proof of a license specially pleaded to an action of trespass, is 
 admissible in bar of the right to recover. Hamilton v. Windolf, N. S. xii. 286. 
 
 108. In what country, may be commenced. Way v. Dame, N. S. vi. 126. 
 
 TEESPASS ON THE CASE. 
 
 A man is not liable in trespass on the case, for an unintentional consequen- 
 tial injury resulting from a lawful act, where neither negligence nor folly can 
 be imputed to him. Morris v. Piatt, N. S. iv. 523. 
 
 TRIAL BY JURY. See Criminal Law. 
 
 1. The subject discussed. 0. S. vi. 705. 
 
 2. A member of a society may be tried and expelled according to its articles 
 of association, and he is bound thereby — the fitness of the objects, &c., is not 
 a subject for judicial inquiry. Society v. Comm'th, N. S. vi. 634. 
 
 3. Rule of court confining party to grounds of defence set forth in specifi- 
 cation filed with clerk not repugnant to law. Fox v. Ins. Co., N. S. vi. 254. 
 
 4. Such specifications of defence may be amended. Id. 
 
 5. Plaintiff need not show allegations, not so denied. Id. 
 
 6. It is not the proper course for a judge to lay down the general princi- 
 ples applicable to a case and leave the jury to apply them, but it is his duty 
 to inform the jury what the law is as applicable to the facts of the case. 
 Morris v. Piatt, N. S. iv. 523. , . ■, 
 
 7. The facts of a case are to be found by the jury, unless admitted, and 
 the judge can only regard them as claimed, for the purpose of applying the 
 law to them contingently, if found ; and he cannot properly refuse to charge 
 upon the facts claimed, on the ground that in his opinion they are not 
 
 proved. Id. . „, ■, n t ■ 
 
 8. Control of the court over disparaging questions. Turnpike to. v. lioomis, 
 N. S. iv. 575. . ^ ^ ., , ^, , 
 
 9. Raising questions of law at the circuit, by motions to strike out the de- 
 fendant's answer, is contrary to the New York code. The question should be 
 presented either by a proper motion before the trial or by demurrer. Smith 
 V. Countryman, N. S. iv. 102. 
 
 10. Points presented on trial which are true but not applicable, should be 
 disaffirmed on that ground. McKnight v. Ratcliff et al., N. S. iii. 310. 
 
924 TEIAL BY JUEY. 
 
 11. Permisaion to the jury to take out with them papers or written docu- 
 ments used as evidence on the trial, is entirely within the discretion ot the 
 judge presiding at the trial, without regard to the consent of parties. Porter 
 V. Mount, N. S. T. 292. . . 
 
 12. Verdict will be set aside, if jury have copy of General Statutesin jury- 
 room, without knowledge of the parties. Merrill v. Nary, N. S. v. 573. 
 
 13. It is a preliminary question for court, whether agency sufficiently 
 proved to admit agent's acts and declarations in evidence. Cliguofs Cham- 
 pagne, N. S. V. 508. 
 
 14. Irrelevant testimony may be admitted, if afterwards made pertinent by 
 other testimony. Blacky. Railroad Co., TA. Si.y. b~t^. 
 
 15. Allowance of a leading question is matter of discretion with the judge. 
 Id. 
 
 16. When exception to judge's charge need not be specific. Sawyer v. 
 Chambers, N. S. v. 191. 
 
 ' 17. One exception to decision good, if judge excludes whole defence. Saw- 
 yer V. Chambers, N. S. v. 381. 
 
 18. Party cannot except to instruction given to jury at his own request. 
 Dennis v. Maxfield, N. S. v. 506. 
 
 19. The great principle of the trial by jury is that the court shall deter- 
 mine the law, and the jury the facts. Guffy v. Commonwealth, 0. S. ii. 242. 
 
 20. Even in criminal cases where the jury have a right to determine both 
 the law and the fact, they are to do so (with the single exception of an ac- 
 quittal) " un^er the direction of the court." Id. 
 
 21. The necessity of guarding the liberties of the people against the power 
 of the government has established the principle that the court cannot de- 
 prive the defendant in a criminal case the benefit of a verdict of acquittal. Id. 
 
 22. In all other cases, civil and criminal, the supervision of the court in 
 directing the admission or rejection of evidence, in giving instructions to the 
 jurors on matters of law, and in setting aside a verdict where it is contrary 
 to law or evidence, is an essential element in the trial by jury. Id. 
 
 23. Where there is nothing in the testimony to show that the prosecutor in 
 a criminal case behaved improperly, the court may set aside so much of the 
 verdict as directs him to pay the costs, without disturbing the verdict of ac- 
 quittal, and such decision is not the subject of review on writ of error. Id. 
 
 24. Impeachment, trial by, subject discussed. N. S. vi. 257. 
 
 25. A party may serve a subpoena on his witnesses, and in cases where he 
 succeeds in the trial, recover his costs therefor. Gordon v. Scott, N. S. vii. 749. 
 
 26. The word trial in the Bankrupt Act means a trial by jury. Id. 
 
 27. If no objection made or exception taken at trial, court will not reverse 
 for admission of incompetent evidence. Voorhis v. Voorhis, N. S. vii. 637. 
 
 28. Where a judge, at the circuit, on ex parte application, irregularly re- 
 fers a cause to a referee to try the whole issue, and the party who has a right 
 to object proceeds with the trial of the action, produces evidence, and sub- 
 mits the case to the referee without objection, the question of the irregularity 
 of the reference cannot be raised upon an appeal. Claflin v. Farmers', S;c. 
 Bank, N. S. ii. 92. 
 
 29. Judge at trial may state to the jury his recollection of what has been 
 testified to. Eddy v. Gray, N. S. ii. 253. 
 
 30. Judge may inquire of jury the ground of their verdict. Lawler v. 
 Earle, N. S. ii. 445. 
 
 31. Answer of court to prayer for instruction to the jury. Schilling v. 
 Durst, N. S. ii. 447. 
 
 32. It was error'to allow counsel to read books of reports to the jury, and 
 comment upon them. Phoenix Ins. Co. v. Allen, N. S. ii. 697. 
 
 33. Charge to jury as to efi'ect of verdict. Waffle v. Dillenbeck, N. S. ii. 765. 
 
 34. If evidence is too slight to justify a verdict, the judge should withdraw 
 the case from the jury. Denny ■y. Williams, N. S. ii. 445. 
 
 TRIAL OP MADELEINE SMITH 
 
 For murder by poison — circumstantial evidence — historical sketch of S • 
 vi. 193. 
 
 TRIAL OP THE WATCHMAN OF ELDAGSEN 
 
 For murder — circumstantial evidence — historical sketch of. 0. S. ix. 1. 
 
TEOVEE. 925 
 
 TROVER. 
 
 I. FOU WHAT IT WILL LlE. 
 
 1. A defendant in trover who relies on a title by prescription, cannot tack 
 to his possession that of prior holders, unless he shows that it is bonS, fide. 
 Worthy V. Kinaman, N. S. xi. 899. 
 
 2. Will lie by a joint-owner of a note against another joint-owner, who 
 surrenders it without authority to the drawer to be destroyed, Winner v. Pen- 
 niman, N. S. xi. 464. 
 
 3. It is no defence to an action of trover that the property sold was gov- 
 ernment bonds payable to bearer, provided the principal was not the bonS, fide 
 purchaser. Kimball, Executor v. Billings, N. S. viii. 189. 
 
 4. Where a note was given for goods sold, but the property in the goods 
 was not to vest until payment of the note, an assignment by the vendors of 
 their title to the goods carries the note, and they cannot maintain trover for 
 it. Esty, et al. v. Graham. N. S. v. 703. 
 
 5. For bank-bills — sufficiency of description. Colebrook y. Merrill, N. S. 
 T. 703. 
 
 6. Where the plaintiff's sheep, having broken out of his lot, mingled with 
 the defendant's on the highway, and were driven to defendant's yard and 
 then separated, it does not amount to an unlawful taking or to conversion. 
 Van Valhenburgh v. Tliayer, N. S. x. 72. 
 
 7. iessor and lessee owned stock on farm jointly, to be divided at end of 
 lease. Lessee dying, his administrator has no more right to sell the stock 
 than lessee himself had, and if he does so, lessor may recover in trover the 
 value of his interest. Turner v. Waldo, N. S. vii.i 576. 
 
 8. In trover by the payor of a note for $36 against the payee, a judgment 
 for the plaintijfif for one cent damages does not entitle the payee to enforce 
 the collection of the note. Dearth v. Spencer, N. S. xii. 670. 
 
 9. Where stage-horses are delivered to a person to be kept at an agreed 
 price, there is an implied agreement to redeliver them for use, and a refusal 
 BO to do is a tort and conversion of the horses. Hudson v. Nute, N. S. xii. 736. 
 
 10. When it will lie for possession of goods bought. Godts v. Rose, 0. S. 
 iv. 574. 
 
 11. For coal dug by mistake of boundaries. — Trover will lie to recover the 
 value of coal dug by the owner of land, through a mistake of boundaries, 
 out of adjoining land. Forsyth v. Wells, N. S. i. 225. 
 
 12. A servant finding a chattel in his master's house, and retaining it with 
 the master's consent, may maintain trover against a wrong-doer for convert- 
 ing it. Mathews v. Harsell, 0. S. iii. 443. 
 
 13. Trover would not lie against the railroad company for using the track, 
 while they had no notice of the change of possession. Fifield v. Maine Central 
 R. R., N. S. xiv. 200. 
 
 14. If the owner of goods, to prevent them from being attached as his own, 
 represent that they belong to another, in trover for attaching the goods, the 
 owner will not be permitted to show that his representation was false. Horn 
 ■V. CoU, N. S. xii. 303. 
 
 15. If the bailee sells or conwrts, bailor may maintain trover for it. John- 
 eon V. Whittemore, N. S. xiii. 389* 
 
 16. Where specific securities, which have been delivered to one, are sur- 
 rendered to another, trover, or a special action for damages, is the proper 
 action, and not assumpsit. Barnum v. Stone ^ Berry, N. S. xiii. 389. 
 
 17. A refusal to return on demand is a conversion. Ballmer v. Eussey, N. 
 
 S. xiii. 262. , , , • ., , 
 
 18 When the plaintifl', as insurer, by several counts claims damages tor 
 expenses, alleged to have been incurred in the investigation of representa- 
 tions falsely and fraudulently made to him by the defendant, for the purpose 
 of procuring a policy upon the life of his debtor, and no evidence is given to 
 support these counts, but evidence that certain representations made by de- 
 fendant at the time was produced, a count in trover joined with them is not 
 sustained. North American Insurance Co. v. Levy, 0. S. i. 243. 
 
 19. Whether, if such a policy was fraudulently procured, trover would lie 
 
 for it. Id. , , ,j- • 11. 
 
 20. It seems, if there be any common law remedy, detinue is the proper 
 one;' but redress might be sought in a court of chancery, upon an applica- 
 tion for a surrender of the policy for oanoellation. Id. 
 
926 TEOVEK 
 
 21. A receiver is so far under tlie protection of a court of equity that the 
 property in the possession of the company, which he has obtained the charge 
 of, under his commission, will be deemed "pendente lite" to be rightfully in his 
 possession, and trover will not lie for the same. Morrell v. Noyes, N. S. iii. lo. 
 
 22. For sale of horse for $1000, part cash and part in tliirty days, the part 
 paid to be forfeited, in case of default, is executionary only, and does not 
 give title, on which trover will lie, until the payment of the whole price. 
 Whiicomb v. Hungerford, N. S. iv. 190. 
 
 23. In this state, the action of trover is a substitute for the old action of 
 detinue, the object of which is to recover the possession of the specific chattel 
 sued for. McBain v. Smith, 0. S. ii. 381. 
 
 II. Bt and against Whom. 
 
 24. Will lie against the wife of the purchaser of land, to whom the deed 
 has been made, for certain plants reserved by the vendor, by a written agree- 
 ment, on refusal to deliver them. Ring v. Billings, N. S. x. 135. 
 
 25. Cannot be maintained against a bank for bonds deposited therein, 
 which have been lost or stolen. Dearbourn v. Union National Bank, N. S. x. 608. 
 
 26. A party who has furnished the wheels and axles to a stage-coach, for 
 one who bought it upon condition that it should remain the vendor's until 
 paid for, may, nevertheless, maintain trover for them against a subsequent 
 purchaser of the coach. Clark v. Welh, N. S. xii. 736. 
 
 27. Plaintiff sold defendant a wagon for $120, to be his until paiS for, the 
 wagon was subsequently stolen, while $60 remained unpaid, in trover the de- 
 fendant is liable for full value of wagon, and cannot discharge himself by 
 showing loss without his fault. Duncan v. Stone, N. S. xii. 792. 
 
 28. May be maintained by a naked bailee, and also by a pledgee for value. 
 Sutton V. Amett, N. S. ix. 776. 
 
 29. By pledgee, against holder obtaining possession by fraudulent repre- 
 sentations. Kingsford v. Merry, 0. S. v. 568. 
 
 30. May be maintained by officer against receiptor for goods attached on 
 mesne process. Salt v. Burbank, N. S. vii. 318. 
 
 31. By bailor of bailee against wrongful taker. Priichard v. Bliek, 0. S. 
 viii. 252. 
 
 32. When trover may be maintained against administrator, on note due 
 from his intestate, if he refuses to pay or deliver it. Frescott v. Ward, N. S. 
 V. 505. 
 
 33. Not maintainable for goods wrongfully taken, unless they have been 
 sold and converted into money. Woodbury v. Woodbury, N. S. vii. 318. 
 
 84. Cannot maintain trover against co-tenant for taking all the crops. Bal- 
 lon V. Hall, N. S. vii. 255. 
 
 85. The sheriff's remedy for the custody of goods levied on by him when in 
 the hands of an assignee in bankruptcy is by action of trover, or by proceed- 
 ing in bankrupt court. Sill V. Fleming, N. S. ix: 508. 
 
 36. A party who has sold property for Confederate notes cannot refuse to 
 accept them, and bring trover for the property. Williams v. Elkins, N. S. i. 195. 
 
 37. The use of property by vendee, after demand by vendor, is a conver- 
 sion. FuUerton v. Datton, N. S. x. 414. , 
 
 38. The pledgee of bonds, delivered as security for a loan, is liable to an 
 action for conversion, if he refuses to deliver them after payment of the loan. 
 Roberts v. Berdell, N. S, xi. 262. 
 
 39. A parol agreement by the husband, made before marriage, that prop- 
 erty belonging to his wife, when sole, sh.ould remain hers, prevents her title 
 being divested by the marriage, and, if divorced, she may maintain trover 
 against a purchaser from the husband. Child v. Pearl, N. S. xi. 129. 
 
 III. CONTEKSION. 
 
 40. An absolute refusal to a demand precludes setting up matter of excuse 
 therefor on the trial. Albee v. Cole, N. S. vi. 716. 
 
 41. Mere negligence, by which property is damaged, is not legal conver- 
 sion. What is necessary to make conversion. Tinker v. Morrill, N. S. vi. 775. 
 
 42. Failure of a tenant in common to divide logs, and claiming to own them 
 exclusively, is conversion, and other may sue in trover. Ripley v. Davis N 
 S. vi. 320. 
 
 43. Where the pledgee of dock warrants as security sold the property in 
 dock, the day before the loan was due, and delivered the warrants the next 
 
TROVEE. • 927 
 
 day, it was a conversion, although the pledgor was bankrupt, and would not 
 have redeemed the warrants. Johnson v. Stear, N. S. iii. 768. 
 
 44. What will not amount to a conversion. Byrne v. Sto^lt, 0. S. iii. 638. 
 
 45. One who, knowing that property is under an attachment, suffers it to 
 be sent away and sold by the owner, and receives the avails arising from the 
 sale, in pursuance of a previous arrangement to that effect, is not thereby 
 guilty of a conversion. Polley v. Lenox Iron Works, N. S. i. 247. 
 
 46. Sale of another's property, under belief of ownership, is conversion. 
 Morrill v. Moulton, N. S. vii. 639. 
 
 47. Purchasing a horse from one who had no right to sell him, and hiring 
 him to another person, is a conversion. Oilmore v. Newton, N. S. iv. 512. 
 
 48. Refusal to permit the owner to talie certain logs off defendant's land, 
 and subsequent sale of part, is a conversion of the whole by defendant. Sher- 
 man V. Way, N. S. ix. 647. 
 
 49. Special plea, denying conversion, amounts to general issue. Turner v. 
 Waldo, N. S. vii. 576. 
 
 50. Where gold coin was deposited as security, and not returned. In tro- 
 ver, the measure of damages would be the value of the gold at the time of 
 conversion. Frothingham v. Morse, N. S. v. 698. 
 
 51. If the mortgagee sell the notes at auction, he will not be liable for a 
 conversion. Fraker v. Reeve et al,, N. S. xiv. 707. 
 
 IV. Mrasurb of Damages. 
 
 52. The measure of damages was the loss actually sustained by the pledgor. 
 Johnson v. Stear, N. S. iii. 753. 
 
 53. It was the value of the goods at the time of the conversion. Id, 
 
 54. Defendant cannot prove, in mitigation of damages, that plaintiff has 
 regained possession of property. Sprague v. McKimie, N. S. xii. 126. 
 
 55. Plaintiff is entitled to recover the actual damages he has sustained in 
 being deprived of the property. Id. 
 
 56. The measure of damages in such action, there being no wrongful pur- 
 pose, will be the fair value of the coal in place, as if on a purchase of the 
 coal field from the plaintiff, and not its value when mined. Forsylh v. Wells, 
 N. S. i. 225. 
 
 57. There is no difference in the measure of damages, whether the action 
 be trespass or trover. McEnroy v. Dyer, N. S. iv. 166. 
 
 58. Discharge is a bar to recovery of damages for conversion of goods. 
 Bickford v. Barnard, N. S. iv. 313. 
 
 59. Has no legal title to the assets of the estate, and cannot maintain tro- 
 ver until they have actually passed into his possession. Singerly v. Fox, N. 
 S. xiv. 126. 
 
 60. Defendant converted certain japanned skins of the plaintiff, whereupon 
 the plaintiff brought trover ; after action, defendant, without plaintiff's re- 
 quest, paid the japanner the costs of japanning them,- the japanning being 
 done upon plaintiff's orders. Held, that the plaintiff was entitled to recover 
 the full value of the goods in their japanned state, and that the defendant 
 was not entitled to deduct the sum he had paid the japanner. Salmon v. 
 Horwitz, 0. S. ii. 640. 
 
 61. A commission merchant who sells before notice of the revocation of his 
 authority, is not liable in trover for the goods sold. Jones v. Hodgkins, N. S. 
 xiii. 262. 
 
 62. A purchaser under such sale acquires a good title as against a prior 
 purchaser from the consignor without delivery. Id, 
 
 63. The receipt of a note from the payee, who has illegally sold a wagon 
 of the plaintiff's, is not such a ratification as will prevent his maintaining an 
 action of trover for the wagon. Abbott v. May, N. S. xiii. 463. 
 
 64. The owner of negotiable securities which have been stolen, may follow 
 and reclaim them wherever he finds them, and the burden is on the holder to 
 show that he took them in the usual course of business for value. Robinson 
 y. Hodgson, N. S. xiii. 463. 
 
 65. In trover for such securities merely showing they were in possession 
 of another, from whom defendant received them, is no defence. Id. 
 
 66. A holder's possession is primA facie evidence of ownership, the pre- 
 sumption being that it was honestly acquired. Id. 
 
 67. For one of four billiard-tables sustained, though the particular one to 
 which plaintiff had title was not proved. Clark v. Oriffith et al., N. S. ii. 119. 
 
928 TEOVER— TRUST AND TRUSTEE. 
 
 68. Lies for goods stolen, after the prosecution for larceny, hut independ- 
 ently of it. Hutchinson v. Merchant^ and Mechanics' Bank, N. S. ii- 188. _ 
 
 69. The statute of limitations does not begin to run against plaintiff in 
 trover till the termination of the prosecution. Id. 
 
 70. Trover for sand, ore, &c. Norlham v. Bowden, 0. S. iv. 126. 
 
 TRUST AND TRUSTEE. 
 I. What will Constitute a Teust, and hekein of REStTLTiNG Trusts, and the 
 Descent oe Trusts. 
 
 1. Sales and titles under deeds of trust. Leading articles on the subject. 
 N. S. ii. 641, 705. 
 
 2. Where one partner is made sole agent, and manages the business 
 entirely by himself, the relation becomes fiduciary. Brooks v. Martin, N. S. 
 iv. 574. 
 
 3. Where property is conveyed to a church to be used in a certain manner, 
 courts of equity will compel the execution of such trust. Feisd v. Mumenmeer, 
 N. S. xi. 776. 
 
 4. A bill in the nature of a bill quia timet, will not lie by heirs at law in 
 anticipation of the trusts under a will becoming incapable of execution. 
 Girard v. Philadelphia, N. S. viii. 245. 
 
 5. y/hen feme covert trustee, wife of one of the principal defendants, bound 
 to make discovery. Bank v. Clarke, N. S. vi. 246. 
 
 6. Where an insolvent advances money to his wife or her father, they being 
 ignorant of his insolvency, and upon learning it pay back in full, there is no 
 trust created for creditors in the profits accrued from the advance. Wheeler 
 v. Kirtland, N. S. xii. 320. ' 
 
 7. A trust results by operation of law where one purchases land and takes 
 the conveyance in the name of another. Jd. 
 
 8. If title be taken in the name of a wife or child, it will be held an ad- 
 vancement or settlement and no trust will result. Id. 
 
 9. But if it is done to defraud or delay creditors, the land will be liable to 
 his debts. Id. 
 
 10. Where the party advancing the money knows that the title is to be 
 made to the grantee for his own benefit, no resulting trust can arise. Id. 
 
 11. Where a wife purchases for her own benefit, though the husband ad- 
 vance the money as a gift, no trust is created for creditors. Id. 
 
 12. Where part of the purchase-money is paid by the party to whom the 
 conveyance is made, no trust results to one advancing the residue. Wheeler 
 y. Kirtland, N.' S. xii. 320. 
 
 13. A resulting trust cannot be raised from subsequent matter arising ex 
 post facto. Tunnard v. Littell, N. S. xii. 327. 
 
 14. If a person whose own note is deposited in trust for others, obtain pos- 
 session of it without the consent of the cestuis que trust, it may be enforced 
 against him in the name of the depositary, by those entitled. iJ. R. Co. v. 
 Mayo, N. S. xii. 670. 
 
 15. Where a third party pays the purchase-money of lands and the grantor 
 agrees to hold them in trust for its repayment, such trust will take priority 
 of a judgment against the grantee. Millikm v. Ham, N. S. xii. 407. 
 
 16. An implied trust cannot be created by parol. Id. 
 
 17. It is an established rule in equity that where one accepts the confidence 
 or trust reposed in him by another, he will be converted into a trustee to pro- 
 tect the interests of the party confiding. Foote v. Foote, N. S. x. 352. 
 
 18. Implied and resulting trusts are excepted from the statute relative to 
 uses and trusts. Id. 
 
 19. When an agent buying property becomes a trustee for his principal. 
 Eshleman v. Lewis, N. S. v. 247. 
 
 20. Rights of principal in such case. Id. 
 
 21. It is not so much the terms used, aa the object to be effected, which de- 
 termines whether an estate is a trust or an executed use. Hawkins v. Chap- 
 man, N. S. xii. 57. 
 
 22. A trust unaccompanied with a beneficial interest descends to the heir 
 at common law. Id. 
 
 23. No trust concerning real estate can be created in Kansas unless by 
 writing. Knat/ga v. Mastin, N. S. xii. 127. 
 
TRUST AND TRUSTEE. 929 
 
 24. An agreement to purchase lands and take the legal title thereto, for 
 the purpose of speculation, and to sell the same within flTe years, and after 
 deducting the outlay and interest and taxes pay over one half of the pro- 
 ceeds to one who was to furnish his time and judgment in selecting the lands, 
 renders the holder of the title a trustee. Seymour v. Freer, N. S. ix. 198. 
 
 25. The trust will continue after the expiration of the five years. Id. 
 
 26. An express trust may depend for its operation upon a future event — 
 and is then a contingent trust. Arciis v. Frinlup, N. S. ix. t)42. 
 
 27. Where a fund is given to several persons with a direction to distribute 
 it among a number of beneficiaries, the acceptance of the fund constitutes an 
 engagement to distribute it in accordance with the terms of the gift. This 
 engagement may be enforced against the fundholders by a proceeding on the 
 part of an individual beneficiary to recover his share. JPeel v. Board of Po- 
 lice, N. S. V. 98. 
 
 28. Though the beneficiaries in this <!ase were policemen, and the Board of 
 Police held the fund, and though the policemen had no right to receive a 
 present without the consent of the Board, yet the acceptance of the fund 
 from the donor warranted the presumption that the Board consented to its 
 payment. Id. 
 
 29. Real estate in Kentucky was sold under an execution during the rebel- 
 lion. The owners were residents of Mississippi, a state at war with the United 
 States. A. having deterred other purchasers by announcing that he was 
 bidding for the owners, bought the land for half its real value, and afterwards 
 sold and conveyed it to B. for double the price he had paid, and claimed to 
 hold the proceeds for his own use. Held, that A. could not be considered a 
 trustee for the owners by parol on account of the Statute of Frauds, nor by 
 any form of contract, express or implied, because the owners were then pub- 
 lic enemies. Hord v. Crutcker, N. S. vi. 165. 
 
 30. The question whether or not B. had notice of A.'s announcement at the 
 sale was therefore immaterial, and his title to the land valid. Id. 
 
 31. But the owners might recover from A., as his acts did not constitute a 
 contract but a tort, as to which the right of action was only suspended by the 
 war. Id. 
 
 32. The measure of damages is the advance A. received on his resale, allow- 
 ing him interest on his payment, and reasonable commissions. Id. 
 
 33. When purchaser, under foreclosure sale, will be deemed a trustee for 
 •the mortgagor. Syan v. Dox, N. S. vi. 122. 
 
 34. On tender of purchase-money and interest, he will be compelled to con- 
 vey. Id. 
 
 35. Immaterial that the agreement to purchase was not in writing. Law 
 makes him a trustee ex maleficio. Id. 
 
 36. Devise to trustee to collect rents and pay over to cestui que trust with- 
 out being subject to his liabilities, is an operative trust. Shankland's Appeal, 
 N. S. iv. 320. 
 
 37. Where a deed expresses a nominal consideration never paid, no use re- 
 sults to the grantor. Hogan v. Jacques, N. S. viii. 120. 
 
 38. A declaration of trust, though not executed at the same time and place 
 as the deed whose purposes it declares, if dated the same day, and being the 
 consideration of it, must be considered with it. Ownes v. Ownes, N. S. xi. 
 776. 
 
 39. A declaration of trust by an infant, by a deed actually delivered, is 
 voidable but not void. Id. 
 
 40. Statute of Frauds not a defence in case of resulting trust. Brannin v. 
 Brannin, N. S. vii. 698. . 
 
 41. Party promising to bid at sale for another who stays away, relying on 
 the promise, will be held a trustee if he buys for his own benefit, notwith- 
 standing the Statute of Frauds. Id. _ ^ ■ i ,. 
 
 42 One mi juris cannot, as against creditors, settle his property in trust 
 for his own use for life and over to his appointees by will. Mackason s Ap- 
 peal, N. S. ii. 504. . , . , , ,j vj m ■ 
 
 43. Devise in trust for support of school of certain kind held valid. Tain- 
 
 ter et al. v. Clark, N. S. ii. 608. ,. i, -. 
 
 44. Does not become extinguished by failure of trustee to accomplish its, 
 purpose. Id. 
 
 59 
 
930 TEUST AND TRUSTEE. 
 
 45. What may be considered income and what principal where a special 
 poirtnerahip of testator is continued by trustees. Kinmonth v. Brigham ei aL, 
 N. S. ii. 698. , 
 
 46. Presumption of conveyance and surrender to cestui que trust. Jirown v. 
 Combs et ah, N. S. ii. 53. .. 
 
 47. Commissions and expenses. 'Wetmore v. Brown et al., N. S. ii. \2,b. 
 
 48. Actions between trustee and cestui que trust. Id. 
 
 49. The officers and directors of a corporate body, are trustees of the 
 stockholders. Koehler v. Black River Falls Iron Co., N. S. iii. 56. 
 
 50. Absolute voluntary conveyance, though grantee agrees orally to hold 
 for grantor, raises no trust in Massachusetts. Titcomb v. Morrill. N. S. v. 382. 
 
 51. In bill for relief in case of stale trusts. Badger v. Badger, N. S. iv. 506. 
 
 52. The fact that the trustee did not know of the trust, in a deed by hus- 
 band and wife conveying property in trust for the wife, does not effect the 
 trust as between the husband and wife. Adams v. Adams, N. S. xiv. 524. 
 
 53. Municipal corporations may hold property in trust for any purpose not 
 foreign to their institution. Sargent v. Cornish, N. S. xiv. 324. 
 
 54. A trust created before the act of 1848 to protect a married woman's 
 property from her husband, to determine in case she survives him, is deter- 
 mined by a divorce a OT'ncM^o. Keening V. Smith, li.S. Vii. in. 
 
 55. Sales by trustees stand upon the same rules as to representations and 
 the rule caveat emptor, as other sales. Slothower v. Gordon, N. S. vii. 2-51. 
 
 56. The statute of limitations applies to trust estates. Crook v. Glenn, N. 
 S. ix. 452. 
 
 57. If trustee is authorized to change investment, upon written consent of 
 cestui que trust, he is liable unless such consent is obtained. Crocker v. Pierce, 
 N. S. xiii. 128. 
 
 58. Equity will set aside a release given to a trustee, where there is inade- 
 quacy of price and inequality in the advantage of the bargains, by which the 
 release was obtained. Id. 
 
 59. Trustees are not allowed to purchase the property of their cesluis que 
 trust, upon principles of public policy. Pairo -i.Vickery, N. S. xiii. 200. 
 
 60. Equity discountenances transactions between trustees and cestuis que 
 trust, and the onus of showing their perfect bonS, fides is on the trustees. Id. 
 
 61. Lapse of time and death of parties are grounds for refusing relief against 
 trustee, especially if injustice might be done by interference of the court. Id. 
 
 62. Investments by trustees. _ Subject discussed. N. S. xiii. 201. 
 
 63. A resulting trust does not arise in favor of one of two joint purchasers 
 unless his part is definite and what money he pays is paid for some aliquot 
 part of the property. Olcott v. Bynum, N. S. xiii. 335. 
 
 64. In no case can it arise for more than the money actually paid. Id. 
 
 65. Where a deed of trust provided that certain money should be paid in 
 instalments, and in default the whole premises might be sold, on a sale 
 by the trustee he may retain out of the proceeds not only the instalment due 
 but the entire amount. Id. 
 
 66. Under certain circumstances a sale of a large and valuable tract in a 
 deed of trust may be proper to be made for cash, and on the premises, though 
 in a remote part of Virginia. Id. 
 
 67. Where a bill is filed for an alleged breach occurring thirty-seveij years 
 before, and after the trustee is dead, it will be dismissed on the ground of 
 laches. Hume v. BeaWs Executrix, N. S. xiii. 336. 
 
 68. And this although the cestuis que trust were women and the trustee a 
 lawyer. Id. 
 
 69. A voluntary deed of trust, reserving no power of revocation, made with 
 a nominal consideration and without legal advice as to its effect, and where 
 there was evidence that its effect was misunderstood by the grantor, was set 
 aside and a reconveyance ordered. Garnsey v. Mundy, N. S. xiii. 345. 
 
 70. The fact that the grantor's infant children were the beneficiaries under 
 the trust-deed was not sufficient to prevent the relief. Id. 
 
 71. Where artifio* or trick is resorted to in procuring property at sheriff's 
 sale at an under value, the purchaser takes as trustee ex maleficio. Faust v. 
 Haas, N. S. xiii. 456. 
 
 72. Unless the discretion of a trustee is so trammelled by a promise to ex- 
 ercise it in a particular way, equity will not disqualify him. William's Ap- 
 peal, N. S. xiii. 403. 
 
TEUST AND TRUSTEE. 931 
 
 73. A chancellor will so control a trustee as to prevent his disappointing 
 the intent of the donoi'. WiUiam'a Appeal, N. S. xiii. 4B3. 
 
 74. A verbal direction of a testator and promise of the executor to perform 
 are not a fraud upon a power in a will. Id. 
 
 75. Where the husband of one of the residuary devisees who had means 
 agreed to pay the expenses of litigating a devise to a charity, and if success- 
 ful to pay himself out of the same and divide the balance with his wife and 
 the other devisees, there is sufficient consideration for his agreement to be 
 trustee. Dickey's Appeal, N. S. xiii. 464. 
 
 76. The husband must proceed until released by all the parties. Id. 
 
 77. Any purchase of the land in dispute would enure to the benefit of 
 all. Id. 
 
 78. A deed of trust from husband and wife, with power for trustee to sell 
 on request of wife, includes a power to mortgage at her request. Zane v. 
 Kennedy, N. S. xiii. 464. 
 
 79. Absolute power to sell includes power to mortgage. Id. 
 
 80. If a mortgage is given lo secure the payment of notes of the wife's son, 
 and they are extended without consideration, she will not be discharged if 
 she were surety. Id. 
 
 81. Trustee is only chargeable with simple interest for failure to invest 
 trust-funds. Smith and Barber, Exs. v. Darby, N. S. xiii. 784. 
 
 82. A deposit of money in the hands of a third person, to be held in trust 
 for the depositor's minor son, with the agreement that the trustee shall retain 
 it for a specified time at a specified rate of interest, creates a complete trust 
 and leaves no power in the depositor to dispose of the money for his own 
 benefit. SAeruood v. Andreas, N. S. i. 57. 
 
 83. Interpretation of trust, devising estate to a class, with power of selec- 
 tion and discretion in its disposition. City v. Shackford, N. S. vi. 446. 
 
 84. One cannot be made liable as trustee, for securities which he holds as 
 the agent of another. Smith v. Wiley, N. S. viii. 634. 
 
 85. Where A. agrees with B. that he will purchase a sheriff's certificate of 
 sale of a mining claim, and take an assignment in his own name for the joint 
 benefit of both, and A. makes the purchase, B. furnishing his proportion of 
 the money, and takes a sheriff's deed in his own name, a resulting trust 
 arises, and A. holds a part of the property in trust for B. Dikeman v. Norrie, 
 N. S. viii. 702. 
 
 86. A purchase on behalf of another, must be held to be in trust for the 
 principal. Rothwell v. Dewees, N. S. iii. 60. 
 
 87. Surviving husband may maintain bill in equity against one to whom hia 
 deceased wife, in her last sickness, had entrusted a note and mortgage for 
 the purposes declared in an ante-nuptial contract, to compel the delivery of 
 the same either to himself or a trustee appointed by the court. Lawrence v. 
 Bartlett, N. S. i. 56. 
 
 88. Where property is given to a corporation in trust for a charitable use, 
 the trust is the creature of the donor, and he may impose upon it such char- 
 acter, conditions, and qualifications as he may see fit. Magie v. The German 
 Evangelical Dutch Church of Newark, N. S. i. 698. 
 
 89. It is a well-established principle of equity that to waive a trust it must 
 be ascertained what proportion each beneficiary is to take. Harper and Wife 
 V. Phelps and Wife, 0. S. i. 571. 
 
 90. Nor will a court of equity raise a trust from expressions imparting rec- 
 ommendation, hope, confidence, desire, &c., where the objects of the trust are 
 not certain and definite, or where the property, which is to be the subject of 
 the trust, is not certain and definite, or where a clear choice to act, or not to 
 act, is given ; or where the prior disposition import an absolute and uncon- 
 trollable ownership. Id. 
 
 91. Oral evidence that at the time of a conveyance the vendee agreed to 
 hold the title in trust for the vendor, is inadmissible as a contradiction of a 
 written instrument. Porter v. Mayfield, 0. S. i. 639. 
 
 92. A mere dry or nominal trustee is not liable to account, except where 
 funds are shown to have actually come into his hands. Thus where a 
 guardian, in order to secure certain property to his wards, executed a mort- 
 gage thereof to a person who was ignorant of the fact for a long time, and 
 when he became aware of it sold out the mortgage, bought in the property, 
 
932 TEUST-AND TRUSTEE. 
 
 and then reoonveyed to the mortgagor. ITeZd, that no' account was needed. 
 Sha7'swood Y. McOlellan, 0. S. ii. 572. 
 
 93. Tenant at will. The doctrine that a cestui que trust, who is in posses- 
 sion with the consent, or even with the mere acquiescence of the trustee, 
 must be regarded as his tenant at will, applies only to the case where the 
 cestui que trust ia the actual occupant. Melling v. Leak. 0. S. iv. 127. 
 
 94. Effect of decision of Kuhn v. Newman, 2 Casey (Penna.) E. 227. Sub- 
 ject discussed. 0. S. T. 193. 
 
 95. A trust in favor of the grantor cannot be inferred in a conveyance ab- 
 solute upon its face, from proof that he continued to retain possession of tlie 
 property, and that no money was paid by the grantee. Ballbeck v. Donald- 
 son, 0. S. vi. 148. 
 
 96. Whether an express agreement, resting in parol, that the grantee should 
 hold the title in trust for the grantor, can be enforced. Qusere? Id. 
 
 97. A trust is not to be sustained in Pennsylvania, because it is for the sole 
 and separate use of a, feme sole, who was unmarried when the will took effect, 
 and there being, at that time, no marriage in immediate contemplation. 
 Kay V. Scales, 0. S. ix. 285. 
 
 II. What will Teeminate a Trust, and herein of the Title of Purchaser of 
 THE Subject of the Trust without Notice of the Trust. 
 
 98. If a cestui que trust be induced by fraud to discharge the trust, it. is ex- 
 tinguished so far as an innocent purchaser is concerned. Penobscot Railroad 
 Co. V. Mayo, N. S. xii. 670. 
 
 99. Where a purchaser of trust property has notice of the trust, before the 
 money to the full value of the property is paid ovei", and is beyond his power 
 to reach, he cannot be regarded as an innocent bond fide purchaser. Abell v. 
 Howe, N. S. xi. 144. 
 
 100. Where an attorney has notice of a trust, the law will presume the no- 
 tice was communicated to the client, and if this knowledge comes to the 
 attorney or agent while acting in another and different transaction, the 
 client and principal will be affected with notice. Id. 
 
 101. Therefore, where such recusant administrator invested such trust 
 funds in a house and lot, taking the title to himself without mentioning the 
 trust, and his creditor attached the same, but abandoned the suit upon the 
 debtor's conveying the same to the creditor's attorney with directions to pay 
 the credit or his debt out of the avails, and the attorney knowing of the trust 
 when he took the title holds the avails, claiming that he should first pay said 
 debt out of them, it was held, that the creditor was not an innocent purchaser 
 for value, and that had he entered his suit and obtained judgment, and 
 had the premises set off on execution, he would have obtained no title be- 
 cause his debtor had none in equity, and in a suit in chancery in favor of 
 the present administrator against such recusant administrator, creditor and 
 attorney, a decree was made for the orator against all the defendants for the 
 amount of the money in the attorney's hands, received from the sale of the 
 premises, which he held for the benefit of the creditor, and to the amount of 
 his debt, and against the executor and attorney for the residue received by 
 the attorney in said sale, with interest from the time of the sale. Id. 
 
 102. Effect of trustee's death, before exercise thereof. City v. Shackford, N. 
 S. vi. 446. 
 
 103. What was no abuse of trustee's discretion. Id. 
 
 104. Transfer of trust estate, without any consideration to one, with notice 
 thereof, fraudulent as to beneficiaries. Smith v. Bowen, N. S. vi. 255. 
 
 105. Where the cestui que trust in possession disavows the trust, and 
 claims to hold the land by a title hostile to that of the trustee ; and this is 
 distinctly brought to the knowledge of the trustee, the possession will from 
 tbat time be adverse. New Market v. Smart, N. S. iv. 890. 
 
 106. In such a case it is not essential that the cestui que trust should claim 
 an absolute fee simple or freehold in himself, but it is sufficient if the title 
 claimed be in trust for the use of the ministry in a certain religious society 
 forever. Id. 
 
 107. The title of a bond fide purchaser from one, who bought at an illegal 
 sale of a trustee or executor, will not be set aside. Sooraem v Wells N S 
 viii. 128. • . • • 
 
 108. The holder of stock as trustee has primd facie no right to pledge it as 
 
TRUST AND TRUSTEE. 933 
 
 security for his private debt, and one wlio takes it under such circumstances 
 does so at liis own peril. Shaw v. Spencer, N. S. viii. 219. 
 
 109. The word "trustee " in the certificate is notice to all persons to whom 
 the certificate may be delivered, sufficient to put the taker on inquiry as to 
 the nature of the trust and the lawfulness of the pledge. Id. 
 
 110. No usage of brokers or course of business can avail against these rules 
 of law, and therefore evidence of such usage is inadmissible. Id. 
 
 111. Where the equitable owner of stock which has been pledged unlawfully 
 by the trustee, has given notice of his rights to the pledgee, his mere presence 
 and failure to object to the payment by the pledgee, of an assessment on the 
 stock, does not stop him from the legal assertion of his title, though equity 
 will require him to refund the amount so paid. Id. 
 
 112. When trust for maintenance and education of children during minority 
 by widow, determined by her death. Fitzpatrick' a Appeal, N. S. v. 192. 
 
 113. Title of a subsequent purchaser, without notice. Eshleman v. Lewis, 
 N. S. V. 247. 
 
 114. One who undertakes to act as trustee of a particular fund for another, 
 from whom he received it, without compensation, with no beneficial interest 
 in the fund, and with no agreement to act for any specified length of time, is 
 entitled to be discharged whenever the further execution of the trust becomes 
 inconvenient to him. Bogle v. Bogle, N. S. i. 506. 
 
 11.5. When a cestui que trust is mi juris, and invested with the entire bene- 
 ficial interest, the use is executed in Pennsylvania, and he takes a legal 
 estate, corresponding with the beneficial estate in quantity, irrespective of 
 a testator's intention, although the trustees are directed to invest in real 
 estate, to keep insured, and to receive the rents and pay to cestui que trust. In 
 England, such duties v/ould require that the legal seisin should remain in the 
 trustees. Kay v. Scales, 0. S. ix. 285. 
 
 116. Conveyance by N. D. to H. F. in trust, and to hold the premises "unto 
 the said H. F. and his heirs, to the use of the said H. F. and his heirs in trust 
 nevertheless for the sole, separate, and only use of L. D. (wife of the grantor) 
 during the term of her natural life ; so that the same shall in no m.anner be 
 liable to my debts, contracts, or engagements; and after her death, should 
 the said L. D. survive me, the s.aid N. D., and only in that event, then in trust 
 to and for the right heirs of her, the said L. D., their heirs, and assigns for- 
 ever," L. D. survived her husband. Held, that the statute had not executed 
 any of the uses; that the rule in Shelly's case applied, and that L. D. had an 
 equitable fee. Damier v. Trescott, 0. S. ii. 366. 
 
 117. A purchaser of stock from a trustee, with notice of the existence of a 
 trust, as where it appears on the face of the certificate, takes it, subject to 
 all equities attaching thereto. Simons v. The Southwestern Bank, 0. S. ii. 546. 
 
 118. The resulting trust remaining in the heiys at law of the testator, was 
 not a mere possibility, incapable of being granted, assigned, or devised, but 
 an'equitable estate perfectly capable of such transfer. This resulting trust, the 
 creature of equity, had its existence at the moment of the testator's death, and 
 descended to his heirs at law, subject to be divested whenever the express trust 
 created by the will became vested, and did not remain in abeyance until the 
 condition on which the express trust was to vest became impossible. There- 
 fore, from the moment of the testator's death, his heirs at law had a defeasi- 
 ble and conditional estate cast upon them by the law, which they might as 
 effectually alien, as if it had been indefeasible and unconditional, and legal 
 as well as equitable. Vint v. King, 0. S. ii. 712. 
 
 119. Equity will relieve from a voluntary trust where its purpose has been 
 fulfilled, and there is no other- reason to preserve it. Tucker's Appeal, N. S. 
 xlv. 264. 
 
 120. After husband's death wife will be entitled to a conveyance of prop- 
 erty conveyed by herself and husband in trust for her separate use. Id. 
 
 121. A purchaser is not bound to see to the application of the purchase- 
 money when the testator's debts are charged on his estate. Dewey's Ex'r v. 
 Buggies, N. S. xiv. 327. 
 
 122. Otherwise if the executors have committed a breach of trust to which 
 the purchaser is a party. Id. 
 
 123. Transfer of possession is not necessary in order to constitute the 
 donor of property a trustee of it. Eaton v. Cook, N. S. xiv. 327. 
 
934 TEUST AND TEUSTEE. 
 
 124. A direction by writing or parol to a debtor, to hold the money in trust 
 for a third person, creates a trust in favor of donee. Baton v. Cook, N. S. 
 xiv. 327. 
 
 125. Omission on the part of a trustee to give a bond required by statute 
 does not divest the legal estate of the trustee. Gardner v. Brown, N. S. xiv. 
 464. 
 
 126. The trustee in a trust deed, made by way of mortgage, is a necessary 
 party to any proceedings to foreclose. Id. 
 
 127. A bill was filed, by a married lady, by her next friend, seeking the 
 removal of a trustee of her marriage settlement under the trusts of which 
 she was entitled for life to the third part of the property settled, on the 
 ground of dissensions between them, so that it was impossible they could act 
 harmoniously together, and the master of the rolls made a decree for the 
 removal of the trustee and the appointment of another; but upon appeal, 
 the lords justices reversed that part of the decree, without prejudice to any 
 question, whether the trustee should or should not at some future time be 
 discharged from his office; their lordships considering it to be the duty of 
 the court to ascertain to whom such dissensions were attributable. Foster v. 
 Davies, N. S. i. 511 and 512. 
 
 128. A trust is special, and will not be considered executed until the time 
 at which the full beneficial enjoyment of the interest devised shall vest, 
 which may be postponed until after the cestui que trust attains majority. Kay 
 V. Scates, 0. S. ix. 285. 
 
 129. Although in Rush y. Lewis, and Kuhn v. Newman, the court refused to 
 decree a conveyance from the nominal trustee, yet when the nominal trust 
 beclouds the title and embarrasses the rights of alienation, a conveyance 
 will be decreed in accordance with the practice of courts of chancery. Id. 
 
 III. Appointment, Renunciation, and Removal of Trustee. 
 
 130. A trustee will not be removed for every violation of duty, but if he 
 acts in bad faith he should be. Lathrop v. Smalley, N. S. xii. 198. 
 
 131. Vexatious and troublesome conduct is good ground for removing a 
 trustee. Id. 
 
 132. Where a bequest is made in a will in trust in the executor, and an 
 administrator de bonis non wrongfully perverts the trust funds and is removed 
 by the probate court (never having given bonds as trustee and never having 
 rendered an account to the probate court as administrator), and a successor 
 is appointed, the latter may invoke a court of equity to reach the funds and 
 bring them to the use provided in the will. Ahell Y.llowe, N. S. xi. 144. 
 
 133. When and upon what terms a trustee can retire from the trust. Forshaw 
 V. Iligginson, 0. S. v. 5tj. 
 
 134. It is no defence to a note given to a township trustee, that the con- 
 sideration was township funds and that the plaintiff had vacated his office. 
 Rock ei al. v. Stinger, N. S. xii. 406. 
 
 135. Weight of time and acquiescence in determining character of trusts. 
 Note to New Market v. Smart, N. S. iv. 403. 
 
 136. A partner is a trustee. Fameroy v. Benton, N. S. xiv. 306. 
 
 IV. AUTHOKITY AND DuTT OP TnUSTEE, AND HEKEIN OF HIS COMPENSATION. 
 
 137. A trustee who has mingled the trust fund with his own property, and 
 in rendering his account has failed to charge himself with the full sum due 
 from him, is not entitled to have the costs of a bill in equity instituted by 
 him to obtain a discharge from the further execution of the trust allowed out 
 of the fund ; but will be charged with the payment of the expenses of taking 
 the account. Bogle v. Bogle, N. S. i. 506. 
 
 138. A cestui que trust is entitled to have the interest on the fund paid 
 yearly, without deduction for commissions until they are settled by the court. 
 Lathrop v. Smalley, N. S. xii. 198. 
 
 139. A trustee who uses the trust fund in his business must seek the cestui 
 que trust to pay the interest. Id. 
 
 140. A trustee who violates the trust is not entitled to commission. Id. 
 
 141. Contributions to a fund for a specific purpose are in hands of trustee 
 only for that purpose, and surplus cannot be used for any other without con- 
 sent of every contributor. Abels v. McKeen, N. S- vii. 767. 
 
 142. Trustee who has abused his trust not entitled to commissions, but mny 
 be allowed compensation for special services. Moore v. Zabriskie, N. S. vii. 767. 
 
TEUST AND TEUSTEE. 935 
 
 143. When ooui-t of equity will not interfere witli trustee's exercise of 
 power. City V. Shackford, N. S. vi. 446. 
 
 144. Interest of cestui que ti~ust cannot be impaired by voluntary act of trus- 
 tee in breach of trust. Smith v. Bowen, N. S. vi. 255. 
 
 145. Where a trustee, who held certain lands in trust to receive and pay 
 over the rents and profits, had, together with the cestui que trust, employed an 
 attorney to defend the trust es(ate from attacks made upon it, and which 
 threatened its existence, the attorney can recover compensation for his ser- 
 vices in an action against both trustee and cestui que trust, seeking to enforce 
 the claim as a lien on the trust estate; it appearing to the court that that 
 was a proper exercise of the discretionary power of the trustee. Noyes v. 
 Blakanan, 0. S. i. 183. 
 
 146. Though trustees are, in general, allowed costs out of the estate, yet, 
 where a trustee has an interest of his own, separate and independent of the 
 trust, and brings the cestui que trust into court, merely to have the question 
 with regard to his separate interest determined, he will be directed to pay 
 the costs. Raybold v. Raybold, 0. S. i. 442. 
 
 147. The trustees under the will of the grandfather could not represent 
 the future estate of the grandchildren where the grandfather, a morlgagor, 
 devised his estate to his children, and remainder to his grandchildren. 
 Leggei v. Mutual Life Ins. Co., N. S. xii. 408. 
 
 148. Authority of administrator, executor, and trustee, for insolvent to 
 transfer stock. Bayard v. Bank, N. S. vi. 633. 
 
 149. It may be considered as settled law that all trustees, as well public aa 
 private, are incapable of purchasing the trust property for their own benefit, 
 either directly or indirectly. CumbeTland Coal and Iron Company v. Sherman, 
 0. S. viii. 333. 
 
 150. Executor, accepting trust, is competent subscribing witness to will, 
 under Stats, of Mass. Wyman v. Symmes, N. S. v. 575. 
 
 151. Have no power to compel the legislature to execute a trust of munici- 
 pal, not fiducial, character. Supervisors v. Burchell, N. S. iii. 631, 
 
 152. A trustee has the right to set off all bond, fide claims against the prin- 
 cipal debtor. Kelly v. Ellison and Trustee, N. S. iii. 126. 
 
 v. Purchase feom Cestui que Trust, and herein of Release by Cestui que 
 Trust, without Settlement of Trust Account. 
 
 153. Trustees can derive no profit connected with trust — commission — col- 
 lecting rents. The decision in this case is an apt illustration of the strict- 
 ness with which courts of equity prevent trustees from making a profit in any 
 way connected with their trust. Nicholson v. Tutin, 0. S. vi. 62. 
 
 154. Where a constable purchases a chattel, sold by himself under an exe- 
 cution, and then sells to a bon& fide vendee, neither the constable nor his 
 vendee will be chargeable as trustees. Farnum v. Perry, N. S. xi. 133. 
 
 155. Where land is paid for jointly by A. and B., and the deed is made to 
 A. alone, under such circumstances that a trust, not within the statute of 
 frauds, would result by implication of law in favor of B. McDonald et al. v. 
 McDonald, N. S. f. 675. 
 
 156. Trust resulting from purchase of land with another's money. Mc- 
 Cartney V. Bostwick, N. S. iv. 572. 
 
 157. If the purchaser at a sale, under a deed of trust, pays his money and 
 takes a deed before he has notice, his title is pro_tected, even though his ven- 
 dors had notice. Hampton v. Stevens, N. S. i. 107. 
 
 158. If executor mingles his trust money with his own, and dies, no pref- 
 erence will be allowed in the distribution of his estate. Barlow v. Yeomans, 
 N. S. vii. 637. . , ,. ^, . ,. „ 
 
 159. A purchase by a trustee at his own sale, either directly or indirectly, 
 will be set aside on application of the parties really interested. Smith v. 
 Z»raA:c, N. S. xii. 471. . „, ,, , . . 
 
 160. Courts of equity can refuse relief, even m cases of breach ot trust, 
 •where there is laches or unreasonable delay on the part of those concerned. 
 
 161. Such relief is always granted on equitable terms. Id. 
 
 162. The time which constitutes laches depends upon circumstances. Id. 
 
 163. Releases from cesiuis que trust, without a settlement of the trust ac- 
 count, are looked upon by the law with jealousy, but fraud must be shown to 
 
 . set them aside. SharteCs Appeal, N. S. x. 352. 
 
936 TEUST AND TRUSTEE. 
 
 164. A sale and conveyance by a trustee, of the trust property, where he 
 becomes the purchaser, is not yoid, but is capable of confirmation by the act 
 of the cestui que trust. And u. title acquired by a subsequpnt bonS, fide pur- 
 chaser, without notice, is good. Johnson v. JJennetl, N. S. iii. 123 
 
 165. Though the trustee may have acted bond fide, yet courts will open the 
 sale, if the cestuis que trust are not satisfied with it. Id. 
 
 166. A cestui que trust, having assented to a sale made by the trustee, by 
 accepting his share of the proceeds, cannot maintain ejectment for his share 
 of the land, on the ground that the sale was void. Id. 
 
 167. A trustee making a sale cannot become the purchaser, either directly 
 or through the aid of another. Terwilliger v. Brown, N. S. x. 479. 
 
 168. T. J. directed his executors, by his will, to purchase $6800 of six per 
 cent, stock of the city of Baltimore, which he ordered to be set apart and 
 held by S. .J., Jr., and A. D. J., as trustees, in trust for his daughter, E. J. A. 
 This stock was accordingly purchased by S. J., Jr., and A. D. J., aa execu- 
 tors, and transferred to themselves as trustees, by the proper officer of the 
 city, on the 10th of December, 1841, and, at the same time, they directed the 
 interest to be paid to E. J. A., or her order, until the power should be with- 
 drawn. On the 16th of October, 1845, (he trustees transferred this stock to 
 the Savings Bank of Baltimore, and thereupon the bank loaned money to S. 
 J., Jr., in his individual name, who subsequently became insolvent, the other 
 trustee having died. Held, that from this statement of facts there did not 
 arise such knowledge on the part of the city of Baltimore of the designs of 
 S. J., Jr., or such neglect on the part of its officers, as to render the city lia- 
 ble for the trustee's misapplication of their cestui que trusts property. Albert 
 V. City of Baltimore, 0. S. i. 282. 
 
 169. It is no answer, on the part of the savings bank, that the loan of the 
 money, and the hypothecation of the stock by A. D. J., is an executed con- 
 tract. A. D. J. might be estopped from denying its legality, but it is other- 
 wise with his cestui que trust. Id. 
 
 170. A bequest, to trustees, of a certann sum of money, to be expended by 
 them "for the support of indigent pious young men, preparing for the min- 
 istry in New Haven," is void for uncertainty. In reWhite, Trustee, 0. S. 1. 280. 
 
 171. The doctrine of cy pres is not recognized in Conneotieut. Id. 
 
 172. All kinds of trustees are entitled to a reasonable compensation for 
 their services as they are rendered, and, unless a contrary intention appears, 
 the compensation must come out of the income of the fund with which they 
 are entrusted. Spangler's Appeal, 0. S. i. 633. 
 
 173. The cestui que trust is entitled to the full value of the property at the 
 time of the sale, as damages, if it is lost or not in a condition to be returned. 
 Montgomery v. Whittington, 0. S. v. 344. 
 
 174. Cannot purchase at his own sale, see Administratoe. 
 
 175. Purchase by crier at sale. Where, on a sale by a constable, he super- 
 intends, and employs a crier merely as a substitute, the latter is not precluded 
 from bidding in the property for himself. Crook v. Williams, 0. S. i. 442. 
 
 176. Cannot become a purchaser at his own sale. MulfordY. Bowen, 0. S. 
 iv. 680. 
 
 177. Cannot change the character of the trust fund. Quick v. Msher, 0. S. 
 iv. 684. 
 
 178. As to power of a corporation to convey their land to its directors as 
 against creditors of the road, see Corpokation. 
 
 179. It may be considered as settled law, that all trustees, as well public 
 as private, are incapable of purchasing the trust property for their own bene- 
 fit, either directly or indirectly. Cumberland Coal and Iron Company v. Sher- 
 man, Dean, and Postley, 0. S. viii. 333. 
 
 180. A trustee cannot contract with himself, or with several trustees of 
 which he is one, or with a board of trustees, of which he is one, without hav- 
 ing his contract liable to be set aside, if in any reasonable time his cestui que 
 trust chooses to say he is not satisfied with it. Id. 
 
 181. A trustee who purchases directly from his cestui que trust, who is mi 
 juris, or whose contract is -afterwards confirmed by the cestui que trust, must 
 in every particular act with fairness and entire candor ; either the suvpressio 
 veri. or the suggestio falsi, will avoid the sale or contract. Id. 
 
 182. Hence, where A. was a director and manager in one corporation, and 
 
TRUST AND TRUSTEE. 937 
 
 made a contract with such corporation on behalf of and for another corpora- 
 tion wherein B. was the ostensible and active manager, but A. himself Ihe 
 real effective party, by which contract substantial benefit was conferred uppn 
 tbe latter corporation by withholding some material facts from the stock- 
 holders of the former corporation by which they mere induced to confirm A.'s 
 contract, it was held thai such contract could not be sustained, and an injunc- 
 tion was granted. Cumberland Coal and Iron Company v. Sherman, Dean, and 
 Poslley, 0. S. viii. 333. 
 
 183. A full discussion and citation of the cases and text-hooks wherein the 
 above principles are enunciated. Id. 
 
 VI. Investment op Tkhst Funds. 
 
 184. The trust fund should be invested in bond and mortgage at the high- 
 est rate of interest allowed by law, and free of taxes, if such exemption 
 exists. Lathrop Y.Smalley, N. S. xii. 198. 
 
 185. Investment of trust funds in trustee's individual name is concealment. 
 Korris's Appeal, N. S. xii. 787. 
 
 186. If trustee speculates with trust funds he may be held to account for 
 profits if successful, to interest if disastrous. Id. 
 
 187. Where trust funds can be traced to any investment, the cestui que trust 
 may claim it. Id. 
 
 188. Cestui que trust may select the most profitable investments, where they 
 have been made partly with trust funds and .partly with trustee's private 
 funds, and cannot be discriminated. Id. 
 
 189. In New York a trustee holding funds for investment for the benefit 
 of minor children, must invest in government or real estate securities, any 
 other investment m.akes the trustee liable. King v. Talbot, N. S. ix. 62. 
 
 190. When trustee loaning at 4^ per cent, not liable for a greater rate of 
 interest. Graver' s Appeal, N. S. v. 383. 
 
 191. Trustees and guardians are not authorized to invest in the stock of 
 an incorporated company, whether a b.ank, railroad, canal, manufacturing, 
 or mining corporation, and will be liable for any loss on such investment. 
 WorralV s Appeal, 0. S. ii. 447. 
 
 192. An improper investment by a trustee may be confirmed by the sub- 
 sequent assent of the cestui que trust if sui juris. Id. 
 
 193. A trustee is to be allowed six months for the Investment of funds 
 coming into his hands, during which time interest will not run against him. Id. 
 
 194. Commissions are to be deducted from the principal of such funds, as 
 of the time of their receipt, and interest charged against the trustee upon 
 the residue only. Id. 
 
 19-5. If a guardian wrongfully invests the trust money in land in his own 
 name,' it will not be liable for his debts. Bancroft v. Cunsen, N. S. vii. 121. 
 
 196. The statute is a good plea to a bill for account of trust funds, where 
 the trust arises only by implication. McClane's Administrator v. Shepherd's 
 Ex'r, N. S. X. 279. 
 
 VII. Liability of Trustee. ^ . ^t c 
 
 197. Attachment of funds in his hands as trustee. Groome v. Lewis, N. S. 
 
 vii. 255. ,.,. . ^, 
 
 198. A trustee is only bound to use ordinary diligence in the preservation 
 of the trust funds. Campbell -Y. Miller, 'S. S.yiW. ZIS. _ ., . , ^ „ 
 
 199. Costs of audit will not be imposed on a trustee acting faithfully and 
 prudently. Graver's AppeaWS. S.^.^^^. ,, , ■, 
 
 200. A trustee who retains the interest must pay on it from the day it was 
 due. Lathrop v. Smalley, N. S. xii. 198. ^ j, , 
 
 201. A trustee who is not chargeable and is not guilty of fraud or unneces- 
 sary delay is entitled to costs. Kent v. Hukhins, N. S. xi. 271. _ . ^„ „ 
 
 202 But a trustee guilty of any fraudulent act enumerated m sect. 43 of 
 statutes of New Hampshire must pay costs though not chargeable. Id. 
 
 203 Where trust and confidence are reposed by one party in another, and 
 such other accepts the confidence or trust, equity will convert him into a 
 trustee, whenever it is necessary to protect the interest of the party so con- 
 fiding, and do justice between them. Foote v. Foote, N. S. x. 352. 
 
 204. The section of the statute relative to fraudulent conveyances which 
 requires trusts to be in writing has no application to such a case. Id. _ 
 
 205 There can be no judgment against a trustee in an attachment suit ot 
 real estate. Washburn v. Mining Co. and Allen, Trustee, N. S. viii. 634. 
 
938 TKUST AlTD TRUSTEE. 
 
 206. A township trustee is uot a mere bailee of the money that comes into 
 his hands by virtue of liis office. Eock et al. v. Stinger, N. S. xii. 40ti.^ 
 
 207. Claims of a portion of the trustees of a corporation uot within the 
 meaning of the Act of 1848. Brigga v. Easterly, N. S. xi. 600. 
 
 208. A president of a corporation who has received bonds from his com- 
 pany to hold as. collateral security for an indorser for the company, becomes 
 a trustee, and is personally responsible for the execution of the trust. It i^ 
 kinmn v. Stewart, N. S. iii. 313. 
 
 209. Agent who buys at sale of principal's land by third party, is not 
 trustee of such land for principal. Kennedy \, Keating, N. S. iii. 632. 
 
 210. The trustees of a religious, literary, or other benevolent association, 
 irrespective of any special power conferred by their charters, cannot pur- 
 chase and hold real estate under trusts of their own creation, which shall 
 protect their property from the reach of their creditors. Magie v. The Ger- 
 man Evangelical Dutch Church of Newark, N. S. i. 698. 
 
 VIII. FoK Fraud. 
 
 211. Any transactions between a guardian and a ward recently arrived at 
 age, by which the guardian obtains an advantage or bounty, will be deemed 
 primd facie fraudulent. Oarvin v. WilliaTm, N. S. xi. 642. 
 
 IX. Fob, Negligence. 
 
 212. Court of probate may afford, executor and trustee under a will, relief 
 in the settlement of his trustee account, if there is a loss of property without 
 his fault. Sellew's Appeal, N. S. x. 708. 
 
 213. A trustee will not be permitted to carry on unnecessary litigation to 
 the injury of a third person, merely for the purpose of earning commissions. 
 Prevail v. Barclay, 0. S. ii. 172. 
 
 214. In cases of devises or conveyances to trustees for the separate use of 
 married women, the court will, if possible, so construe them as to vest the 
 legal estate in the trustees, because this will best effectuate the intentions of 
 the donor. Ware v. Richardson, 0. S. ii. 485. 
 
 215. A deed conveyed real estate to a trustee "in trust," that a married 
 woman "shall and may, during her life, have, hold, use, occupy, and enjoy" 
 the same, "and the rents, issues, and profits thereof," to her own proper use 
 andbenefit, notwithstanding her coverture, and "that without the let, trouble, 
 or control of her present, or any future husband," or being liable for his 
 debts, " as fully in every respect as if she was sole and unmarried, and from, 
 and immediately after, her death, then to and for the use and benefit of her 
 legal heirs and representatives." Held, that this deed created but a mere 
 equitable life estate in the married woman, and that it executed the legal 
 estate in her heirs, and, consequently, that the rule in Shelley's case did not 
 apply. Id. 
 
 X. Bankrupt Trustee. 
 
 216. Duty of bankrupt trustee to prove for money due on account of ^ — by 
 himself — certificate does not remove his liability. Orretl v. Corser, 0. S. v. 
 320. 
 
 XI. Suits by and against Trustee and herein of Jurisdiction in Cases of 
 
 Trust. 
 
 217. The court of the state where the cestui que trust resides, has jurisdic- 
 tion to appoint a trustee in the place of one dying, although such trustee re- 
 moved from the state and took the fund with him. Curtis v. Smith, N. S. xi. 
 63. 
 
 218. Persons who have traded with and given credit to the trustee of a 
 married woman's separate estate, cannot, in the first instance, go into chan- 
 cery to have their debts paid out of the trust estate. Pollard et al. v. Cleve- 
 land et al,, N. S. viii. 702. 
 
 219. If executors or trustees created by a will are authorized to make di- 
 vision and allotment of real estate, and neglect or refuse to do it, the remedy 
 for the cestui que use is in the Orphans' Court. Wallace v. Wallace, N. S. i. 42. 
 
 220. Probate court has no jurisdiction over trustee, appointed by will. 
 Hayes v. Hayes, N. S. viii. 575. 
 
 221. When a husband, in answer to a bill by his wife to establish a trust in 
 her favor, admits that he signed, sealed, and acknowledged the deed, his de- 
 nial of delivery amounts to nothing. Adams v. Adams, N. S. xiv. 624. 
 
TRUST AND TRUSTEE— UNITED STATES. 939 
 
 222. Judgment recovered against the grantor after the conveyance and 
 before sale of the land by the trustee. Cook v. Dillon, 0. S. viii. 435. 
 
 223. The right of the legislature, under proper limitations, to restrain, en- 
 large, modify public corpor;itions, which exist for public purposes alone. 
 Inhabitants of North Yarmouth v. Shilling, 0. S. viii. 307. 
 
 224. Rule as to obtaining injury iis to wilful default. It was established and 
 acted upon as general rule by Lord Eldon, that a plaintiff proceeding against 
 an executor or trustee, in order to obtain an inquiry as to wilful neglect or 
 defavilt, must aver and prove at least one act of wilful neglect or default. 
 Sleight v. Lawson, 0. S. vi. 02. 
 
 225. Trustees cannot retire with their counsel, and prepare their answers 
 to depositions, they must be written by the magistrate. Morrison v. Annis, N. 
 S. viii. 571. 
 
 226. A trust estate cannot be sold by execution. Hogan v. Jacques, N. S. 
 viii. 120. 
 
 XII. Op the Cestui Que Tbust. 
 
 227. A cestui que trust is not bound by acquiescence unless he has been fully 
 informed of his rights, and of all the material facts and circumstances of the 
 case. Life Association v. Siddall, N. S. i. 176. 
 
 228. A cestui que trust, whose interest is reversionary, is not bound to assert 
 his title until it comes into possession. He is not, however, less capable of 
 giving his assent, by acts or otherwise, to a breach of trust, by reason of his 
 interest being in reversion. Life Association v. Siddall, N. S. i. 175. 
 
 229. Where a party is in a position of trust and oonfideoce his representa- 
 tion of facts as true without an examination, whether his statement contains 
 the whole truth, is as much a breach of trust as a wilful falsehood, and equity 
 treats such an omission as a fraud in itself. Pomeroy v. Benton, N. S. xiv. 
 306. 
 
 ULTRA VIRES. 
 
 It is not ultra vires for a canal company having the right to draw water 
 from a river, to agree to discharge its waste water at a certain point. Arm- 
 strong V. Penna. Railroad Co., N. S. xiv. 700. 
 
 UNENCLOSED LAND. 
 
 The owner of unenclosed land may prosecute his lawful business thereon, 
 but in so doing he must exercise reasonable care and diligence to avoid in- 
 juring the cattle of others, which may have wandered on the premises. The 
 Vicksburg and Jackson R. R, Co. v. Patton, 0. S. vi. 457. 
 
 UNIFORM TAXATION. See R. R. Co. v. The Supervisors, 0. S. iii. 679. 
 
 UNINCORPORATED SOCIETY. 
 
 1. The rule that an unincorporated association cannot take by devise or 
 gift, applies only to land or to personalty where a permanent trust is created. 
 Ticknoi's Estate, N. S. iv. 269. 
 
 2. A deed of land to an organized and acting, though unincorporated, 
 religious society, vests a valid title in the grantees as a body, and does not 
 create a tenancy in common among the individuals who compose the society. 
 Samblett and Wife v. Bennett, N. S. iii. 317. 
 
 3. Rights of the committee in charge of such property, and of members of 
 the society. Id. 
 
 UNITED STATES. See Claims. 
 
 1. As to prosecution of claims by and against. See TJie United States v. 
 Smith, 0. S. V. 268. 
 
 2. There is no authority, either in the executive or judicial departments 
 of the government, to allow a claim against the United States which is pro- 
 hibited by law. Id. 
 
 3. The general maritime law adopted by the Constitution of the United 
 States. Roberts v. Skolfield, 0. S. viii. 156. 
 
 4. Stock in the public debt of the United States taxable under the laws of 
 the state. The People v. The Commissioners of Taxes, N. S. i. 81. 
 
 5. The government, as a, contractor, cannot be held responsible for the 
 acts of the government as a sovereign. Jones v. United Slates, N. S. v. 353. 
 
940 UNITED STATES COUKTS— USAGE. 
 
 UNITED STATES COURTS. 
 
 1. The jurisdiction of the Federal courts in admiralty in cases of collision 
 between steamboats on the navigable rivers of the United States. Steamboat 
 Sine V. Trevor, N. S. vi. 586. 
 
 2. What record must show, in a case removed from a state court under 
 judiciary act, to Supreme Court of the United States. R. B. Co. v. Rock, N. 
 S. vi. 444. 
 
 3. Courts of the United States are not bound to give instructions upon spe- 
 cific requests by counsel for them. Wills v. Smith, N. S. ix. 59. 
 
 4. Unless Congress has otherwise provided, state statutes of limitations are 
 applied to controversies in the courts of the United States. Martin v. Smith, 
 N: S. ix. 694. 
 
 5. The Circuit Court of the United States for the District of Iowa has the 
 power, and it is the duty, if necessary, to issue writs of mandamus, ordering 
 the levy and collection of a tax to enforce judgments against public corpora- 
 tions. U. S. v. Treasurer Muscatine Co., N. S. ix. 415. 
 
 6. A prisoner brought before a judge in obedience to a writ of habeas corpus, 
 is under the control of the judge. United States v. Boss, N. S. xi. 320. 
 
 7. A writ of habeas corpus cannot issue out of a state court to inquire into 
 the cause of a commitment for contempt by a court of the United States. Hx 
 parte Passmore Williamson, 0. S. iii. 741. 
 
 UNITED STATES JUDGE. 
 
 The power to issue a writ of habeas corpus is expressly conferred upon a 
 judge of the United States. Sx parte Sifford, marshal et al., 0. S. v. 659. 
 
 UNITED STATES LOANS, NOTES, AND STOCKS. 
 
 1. The stock of the United States is not subject to taxation. Bank of Com' 
 merce v. Commissioners of Taxes, N. S. ii. 614. 
 
 2. Depositor in bank having a balance to his credit in coin, and also in 
 treasury notes drew for coin, but was tendered notes only — evidence of cus- 
 tom of banks to pay coin for checks on such balances not admissible. Thomp- 
 son V. Riggs, N. S. vii. 122. 
 
 3. By a lease of property in British dominions, money was payable in 
 " dollars and cents of the United States currency." Nova Scotia Telegraph Co. 
 V. American Tel. Co., N. S. iv. 365. 
 
 4. United States stocks and bonds are subject to a state collateral inheri- 
 tance tax. Penna. v. Strode, N. S. v. 435. 
 
 5. Power of states indirectly to tax U. S. securities. Note to People v. 
 Commissioner of Taxes, N. S. iii. 558. 
 
 6. Bond for payment of gold coin of certain fineness, notwithstanding 
 law making anything else legal tender, not payable in greenbacks. Dutton v. 
 Pailaret, N. S. vi. 637. 
 
 UNIVERSITY. 
 
 The legislature of a state may vacate the oiEce of a professor in one of its 
 universities, and appoint another, though such professor had been appointed 
 under the authority of the state for six years. Head v. The University/, N. S. 
 xiii. 707. 
 
 UNSEATED LAND. 
 
 Where the owner of an unseated tract, seeking to pay the taxes, is unable 
 to ascertain that the tract is taxed, and therefore does not pay the tax, a sale 
 for such taxes does not pass the owner's title. Brettaugh Y. Locust Mountain 
 Coal Co., N. S. vii. 109. 
 
 USAGE. 
 
 1. The evidence of the usage of trade was properly admissible, and rendered 
 the defendants themselves liable under contract. Humfrey v. Dale, 0. S. v 651 
 
 2. A check drawn on a bank by a depositor who has funds therein is to be 
 regarded in law as it is in commercial usage. Amblm- v. The State Bank 
 S. viii. 393. ' ' 
 
 3. Proof of usage is admitted in actions on express contracts on the ground 
 that it explains the intent of the parties. Lamb v.Klam, JH. S xii Igff 
 
 4. Usage should be long continued, well-established, and' uniformly acted 
 on. Id. "^ "' 
 
USAGE— USURY. 94I 
 
 5. It is unnecessary to show how long a usage has continued if it is shown 
 that tlie parties knew it and contracted in reference to it. Lamb v. Klaus N 
 S. xii. 199. ' 
 
 6. A usage to pay ten per cent, on advances on goods is not contrary to 
 tiie terms ot a, written contract where nothing is said of interest. Id 
 
 I. Such usage is like any other unwritten promise to pay that rate and is 
 good to enforce payment of interest at the legal rate. Id. 
 
 8. A practice to treat a contract as binding, only at the conTenienoe of 
 either party, cannot be upheld as a commercial usage; it is repugnant to the 
 principles of law. Randall v. Smith, N. S. xiv. 464. 
 
 9 A usage must be certain, general, known, reasonable, and not repugnant 
 to the rules of law. Id. 
 
 10. Usage of trade as evidence. See Humfrey v. Dale, 0. S. v. 551. 
 
 II. A commission merchant in New York receiving a parcel of corn with 
 orders to sell for cash, sold it to a, person, at the time of sale, in good credit 
 The sale was made on Monday, and the price was called for on the succeed- 
 ing Friday but not paid. On the next Monday, it became known that the 
 purchaser had failed. The loss was held to fall on the commission merchant, 
 notwithstanding an attempt was made to set up a usage in New York that 
 where a sale is made for cash the purchaser has three or four days to pay 
 the money. MHtler cj- Stewart v. Smdder, 0. S. ii. 80. 
 
 12. A usage to control or interpret contracts must be known, certain, uni- 
 form, reasonable, and not contrary to law. Id. 
 
 13. Semble, that such usage as was set up in this case was unreasonable 
 and illegal. Id. 
 
 USE AND OCCUPATION. 
 
 1. Personal liability of assignees of a lessee for use and occupation. 
 Jermain v. Paltison, N. S. vi. lip. 
 
 2. Proof necessary to maintain action for use and occupation. Hall t. 
 Transportation Co., N. S. vi. 123. 
 
 3. Need not actually occupy. Id, 
 
 USES. ' 
 
 1. As an element of our law of conveyances. Leading article upon, 0. S. 
 vi. 65. 
 
 2. The English doctrine of, subject discussed, 0. S, v. 641. 
 
 USUFRUCT OF WATER. See Delaware Riveb, Charitable Uses. 
 USURY. 
 I. What is Usury. 
 
 1. A debtor who, in settling with the executors of an estate, allows usurious 
 interest and gives his notes to a legatee, is estopped in a suit on the notes 
 from setting up the usury as a defence. McCoy v. Stranahan, N. S. xiv. 200. 
 
 2. An intent on the part of the lender to stipulate for unlawful interest is 
 necessary to constitute usury. Grant v. Merrill, N. S. xiv. 711. 
 
 3. Where the lender knowingly accepted and retains such a contract, the intent 
 is established. Id. 
 
 4. It is fully settled in Pennsylvania that a vendee has a right to purchase 
 security at a greater discount than six per cent., but he must be a purchaser 
 in good faith, and not participate in any contrivance to evade the statute 
 against usury. Gaul y. Willis, 0. S. iv. 561. 
 
 5. The difference between the English and the Pennsylvania statutes 
 against usury stated. Id. 
 
 6. Where A. draws a promissory note in the usual form, to raise money by 
 its sale, purporting to be "for value received," and B. endorses the note 
 to C, who sells it to D. at a discount of one and one-half per cent, per 
 month, the latter having no notice whatever of the purpose for which the 
 note was made, and having neither loaned nor intended to loan money on it 
 to the maker or lirst endorser, A. cannot be heard, even after a release, to 
 give evidence to invalidate the security in the hands of D., a bond fide holder, 
 on the ground of usury or failure in the original consideration. Jd. 
 
 7. Cannot defeat recovery on ground of usury, unless pleaded. Bank v. 
 Foster, N. S. V. 381. 
 
 8. Agreement to pay certain sum at promisor's death, with gross sum for 
 
942 USURY. 
 
 interest thereon, though at death more than legal interest, is not usurious. 
 Parker v. Cobwrn, N. S. v. 383. 
 
 9. Where the payee of a note endorses it after maturity, he cannot set up 
 usury between himself and the maker. Frank v. Longstreet, N. S. xi. oz9. 
 
 10. At common law, as usury rendered the contract void, it could be proved 
 under theglea of "non assumpsit," but under the statute it must be pleaded 
 specially. Frank v. Morris, N. S. xii. 327. 
 
 11. If not usurious in the state where it is drawn, a bonS, fide purchaser 
 may recover the full value. Tilden v. Blair, N. S. xiv. 522. * 
 
 12. A chattel mortgage can be avoided for usury by a judgment-creditor 
 of the mortgagor. Carow v. Kelley, N. S. x. 600. 
 
 13. An agreement to let the mortgagee retain part of the land, after being 
 paid principal and interest, is usurious. Gleason v. 5m?-7c, ,N. S. ix. 391. 
 
 14. Chapter 172 of the laws of 1850 operated pro tanto as a repeal of the 
 statutes prohibiting usury. Bank v. Hoge, N. S. vi. 227. 
 
 15. Usury laws of one state will not be enforced in another, or contracts 
 made in latter. Bank v. Young, N. S. vi. 60. 
 
 16. Warrants issued by a municipal corporation in payment of a judgment, 
 at the rate of one dollar in warrants for every seventy-five cents due on the 
 judgment, are tainted with usury. Clark v. Oitg of Des Moines, N. S. vi. 146. 
 
 17. Where the agent of the borrower negotiates a loan for the highest legal 
 rate of interest, and without the knowledge of the lender .tIso retains a fee 
 for his services, the loan is not usurious. Sage T.Wright, N. S. xiii. 719. 
 
 18. The borrower will be bound by the representations of his agent made 
 to the lender, that the debt was honest and would be paid. Id. 
 
 19. An agreement by borrowers to pay to the lender one-third of the profits 
 of their business as co-partners, in addition to the legal interest, for the use 
 of the money loaned, is usurious and void. Sweet v. Spence, N. S. i. 378. 
 
 20. When promissory notes of equal amounts are exchanged, one is equal 
 in value to the other, and there is no usury in the transaction, but when either 
 party makes an advantage in the arrangement, over and above seven per 
 cent., then the case is one of usury, if the transaction was designed as, or 
 was connected with, a loan of money. Thomas v. Murray et al„ N. S. i. 183. 
 
 21. The payment of a premium to the assignee of a mortgage will not 
 render it usurious. Conover v. Hobart, N. S. xiii. 196. 
 
 22. Usury in Pennsylvania. Notes on the law of. 0. S. v. 705. 
 
 23. In an action on a note, where the sole question ?s as to whether it was 
 usurious, the question is one of fact entirely, and the finding of the jury is 
 conclusive. Horton v. Moot, N. S. x. 760. 
 
 24. Where a note draws interest, until paid, at highest legal rate, an agree- 
 ment to pay additional sum for extension, is usurious. Meiswinkle v. MeCul- 
 lough, N. S. xii. 127. ' 
 
 25. While the agreement is executory, it is void, and does not discharge a 
 surety. Id. 
 
 26. Even if excess is paid, the promise to extend being without considera- 
 tion is void, and surety is not discharged. Id. 
 
 27. Where a contract is simply for a loan of money, any profit made, or 
 loss imposed upon the borrower, in addition to the legal rate of interest, is 
 usury. Buttrick v. Harris, N. S. iii. 112. 
 
 28. Where, however, an addition is made for the price of exchange, not for 
 the loan or forbearance, but as compensation for accepting payment in a 
 place less convenient, or wbere money is less va,luable, the contract will be 
 lawful. Id. 
 
 29. Subject discussed. N. S. iv. 321, 512. 
 
 80. Rate fixed by law per annum may be paid at periods shorter than a 
 year, although the effect is to give compound interest. Meyer v. Muscatine N. 
 S. iv. 116. 
 
 31. Interest may be contracted to be paid either at the place of contract or 
 place of performance, without being usurious, unless so contracted for the 
 purpose of getting the higher rate. Miller v. Tiffany, N. S. iv. 116. 
 
 32. Promise to pay a sum above legal interest, depending on a contingency 
 is not usurious. Spain v. Hamilton's Adm., N. S. iv. 116. 
 
 33. Conveyance of land subject to usurious mortgage. Hartley v. Harrison 
 et al., N. S. ii. 57. 
 
USURY. 943 
 
 84. If note is purchased for less than its face, from an agent of the maker, 
 it will be usurious, though the purchaser does not know that the seller is 
 acting only as agent. Sylvester v. Swan, N. S. ii. 657. 
 
 35. A sale of mortgage securities at a premium cannot subject the party to 
 an action to recover the premium on the ground of usury. Culver v. Bigelow, 
 N. S. xi. 135. 
 
 36. Under the interest law of Illinois of 1857, a note bearing 12 per cent, 
 interest per annum is usurious. Hamill v. Mason, N. S. x. 164. 
 
 37. The statute may be given in evidence under the general issue. Id. 
 
 38. Stipulation by the creditor for the payment of the legal rate of iuter- 
 cst in the state where the debtor resides and the note is made, is not usury. 
 Houston V. Potts, N. S. ix. 45G. 
 
 39. Where the agent of the lender bargains for and obtains excess of in- 
 terest for his own use and benefit, alone, but with the knowledge of the prin- 
 cipal, per JoHNSOX, P. J., and J. C. Smith, J., the usury affects the whole 
 transaction, and the principal is liable for it; per 15. D. Smitu, J., the prin- 
 cipal should not be liable, unless the bonus or excess given to the agent was 
 made a condition of the loan. Porter v. Mount, N. S. v. 292. 
 
 40. Taking of accommodation note from payee for less than its face is 
 usurious, even without notice. Whitten y. Haijden, N. S. iii. 696. 
 
 1. Who are Liable foe Taking. 
 
 41. One who makes a contract, which the law declares usurious, cannot 
 escape the penalty of the offence upon the plea of ignorance of the law, or 
 of the absence of an intention to evade the statute. Thomas v. Murray et at., 
 N. S. i. 184. 
 
 42. Usury laws are intended to protect the borrower, and not to prevent the 
 lender from receiving an excess from third parties, who voluntarily agree to 
 pay it. McArthur v. Schenck, N. S. xii. 127. 
 
 43. The terre tenant of the land cannot set up usury as a defence to a suit 
 on a mortgage. Conover v. Hobart, N. S. xiii. 196. 
 
 44. A married woman is liable in an action for taking usurious interest, 
 and judgment may be given against her separate estate as if she were sole. 
 Porter v. Mount, N. S. iii. 493. 
 
 45. Not personally liable for innocently receiving usury on a note due 
 testator. Heath v. Cook, N. S. iii. 507. 
 
 III. Pleadinqs and Defence, and heeein of Proceedings for the Penalty. 
 
 46. Mode of pleading. Bank v. Orenth, N. S. vii. 127. 
 
 47. In an action for money had and received, for usurious interest, against 
 husband and wife, the plaintiff was allowed to discontinue the complaint 
 against the husband, and retain his verdict against the wife. Porter v. 
 Mount, N. S. V. 292. 
 
 48. In a suit on a note, an affidavit that the name of the endorser was used 
 to avoid a defence of usury, but the note was really the property of the payee, 
 is sufficient. Evans v. Yoke, N. S. xi. 192. 
 
 49. A statute authorizing a party who has paid usurious interest to sue for 
 the excess within one year is cumulative, and does not take away the right of 
 the borrower to an action at common law. Porter v. Mount et al., N. S. iii. 493. 
 
 50. A provision in such statute, that if the party paying usury shall not 
 bring his action within one year, another person (such as a superintendent 
 of the poor) may then sue for and recover the amount paid for usury within 
 three years after such first year, does not absolutely suspend the right of 
 action of the party paying the usury, but he may still sue at any time before 
 suit actually brought by such public officer. Id. 
 
 61. Dictum of Si-encer, C. J., in Wteaton v. Ilibbard, 20 Johns. 290, over- 
 ruled. Id. ,,.„.. ,.„ 
 
 52. Is a personal defence. Sellers v. Botsford, N. S. ii. 5iO. 
 
 53. As a defence must be specially pleaded. The Confederate Note Case, N. 
 
 54. Usury must be specially pleaded, or specifically set forth on the 
 record, and supported by evidence, or the court will not inquire into it. 
 Cleveland Insurance Co. v. Seed, 0. S. vi. 406. 
 
 55. One partner cannot plead usury to the contract of another, so as to 
 defeat a creditor to principal and legal interest. Villon v. McBae, N. S. ix. 045. 
 
944 USURY— VENDOR AND VENDEE. 
 
 56. In suit to foreclose, the mortgagor is entitled to the statute penalty for 
 usury in reduction of the judgment. Minot v. Sawyer, N. S. iv. US- 
 
 IV. Renewed and Substituted Securities. _ . . 
 
 57. Any security given in payment or discharge of an usurious security is 
 equally void \iiVa the original. ■ The original taint of usury attaches to all 
 consecutive obligations and securities growing out of the original vicious 
 transaction. Vickery v. Dickson, N. S. i. 310. 
 
 V. Time and Piaoe of making the Contkact Goveen. 
 
 58. The law in force at the time the remedy is sought upon a contract 
 governs as to questions of usury. Perrin v. Lyman's Adm'r, N. S. i- 188. 
 
 59. The provision of the Interest Law of 1867 (Acts 1867, p. 151), that 
 " all interest exceeding the rate of ten per centum per annum shall be deenif d 
 
 . usurious and illegal, as to the excess only, and in any action upon a contract 
 affected by such usury, such excess may be recouped by the defendant, when- 
 ever it has been reserved or paid before the bringing of the suit," embraces 
 contracts made before, as well as those made after, the passage of said act. 
 Id. 
 
 60. Where the maker and endorser of a note reside in New York, and it is 
 drawn and payable there, the laws of that state govern as to the rate of in- 
 terest. HacketUtown Nat. Bank v. Rea, N. S. xii. 600. 
 
 61. If it is discounted in New Jersey at seven per cent, it is not rendered 
 usurious and void, because the legal rate there is six per cent. Id. 
 
 62. A debt in good faith contracted in another state cannot be impeached 
 m Massachusetts for usury. Vhler v. Semple, N. S. ix. 390. 
 
 63. The fact that paper is transferred by a corporation, to secure advances, 
 at a rate exceeding seven per cent., does not tend to impeach the good faith 
 of the transferree, such a contract being no longer illegal. Sank v. Hoge, N. 
 S. vi. 227. 
 
 VAEIANCE. 
 
 1. Where the declaration is on a parol contract, and a vrritten one is given 
 in evidence without objection, such variance can be taken advantage of only 
 when the evidence is oflFered. Wolf Greek Goal Go. v. Shultz, N. S. xii. 783. 
 
 2. Where a plea of usury avers the payment of $150, and the evidence 
 shows but $125, it is such a variance as renders the evidence inadmissible. 
 Frank v. Morris, N. S. xii. 327. 
 
 3. When the complaint alleges that the defendant wrongfully diverted the 
 water, while the evidence shows that though the water was originally diverted 
 by him, he provided means for its return to its natural channel above plaintiff's 
 lands, and that its return was prevented by the act of another person after it 
 left defendant's land, there is no material variance between the allegations 
 and proof. Stdn v. Burden, 0. S. v. 729. 
 
 VENDOR AND VENDEE. 
 
 I. Or Conteaots foe the Saie of Land. 
 
 1. The competency of a corporation grantee to take title to land, cannot 
 be disputed by a grantor who has delivered a deed and received the consid- 
 eration, or by any one claiming through him by subsequent conveyance. 
 Myers v. Orofl, N. S. xi. 308. 
 
 2. Where one joint vendee receives a certain sum for the release of his 
 right of action against the vendor, the other vendees are entitled to a share 
 therein. James v. Aiken, N. S. xiv. 760. 
 
 3. Vendor may reserve an assignable right of taking water from a spring, 
 without being annexed to any particular estate. Goodrich v. Burbank. N. S. 
 vi. 720. • 
 
 4. A purchaser at a judicial sale under the judgment of the state court, 
 who has paid only in Confederate notes, cannot be regarded as a bona fide 
 purchaser who has paid. Guyler v. Ferrill, N. S. viii. 100. 
 
 5. Judgment signed in firm name, but first names of partners not set out 
 on index, is not a lien against subsequent purchasers or lien creditors. 
 Smith's Appeal, N. S. iv. 255. 
 
 6. Interpretation and construction of contract for sale of land, subject dis- 
 cussed. N. S. ii. 129. 
 
 7. Judgment against vendor in an executory contract for sale of land, ia 
 subject to equitable rights of vendee. Smith v. Gage, N. S. ii. 438. 
 
VENDOE AND VENDEE. 945 
 
 8. It being the custom ia Philadelphia, in the absence of express contract, 
 for the purchaser to pay for the deed, he is also chargeable with the cost of 
 the stamp, McCready v. "Callahan, N. S. iii. 2-tl. 
 
 9. To render a sale void as to creditors, the vendee, as well as the vendor, 
 must participate in the intent to delay. Leach v. IfVanm, N. S. viii. 604. 
 
 10. Vendor cannot eject his own vendee who has entered by license or 
 under express agreement giving him possession, until the license is rescinded 
 or the agreement broken. Pierce v. Tattle, N. S. viii. 633. 
 
 11. Mere notice of judgment ten years old, will not affect a purchaser of 
 the debtor's land, without actual fraudulent intent. Reynolds v. Darling, N. 
 S. iv. 382. 
 
 12. Vendor afterwards acquiring fee, holds it in trust for his vendee — or 
 vendee's mortgagee. Clarke y. Martin, N. S. v. 255. 
 
 18. Purchase of outstanding title by vendee in possession, enures to ven- 
 dor's benefit — vendee will be allowed costs of purchase. Ash v. Hohler, N. S. 
 V. 448. 
 
 14. The grantor in an absolute conveyance, cannot show by a parol agree- 
 ment that the grantee was to hold for bis benefit, unless he proved fraud, 
 mistake, or accident. Morrall v. Waterson, N. S. x. 407. 
 
 15. Title of purchaser from assignee is good, though the assignment be 
 fraudulent. Sheldon v. Siryker, N. S. iv. 252. 
 
 16. Where the vendor is unable to perform, performance on the part of 
 the purchaser is not necessary, except in case the purchaser seeks to compel 
 a performance, or to recover damages without rescinding the contract. 
 Morange v. Norris, N. S. i. 240. 
 
 17. The possession by a husband of his wife's real estate is to be taken as 
 her possession, so as not to put a purchaser upon inquiry as to the rights of 
 a third person, of whom the husband, to cover his own fraud, took a lease 
 unknown to the purchaser. Faaseit v. Smith, N. S. i. 180. 
 
 18. An agreement for the purchase of land at the option of vendee, is not 
 after election by vendee and notice to vendor, so devoid of mutuality that it 
 will not be enforced. Corson v. Mulvany, N. S. iv. 478. 
 
 19. Nor does the refus.al of vendor to accept the consideration, destroy the 
 mutuality, though it gives the vendee an opportunity to retract his election. 
 Id. 
 
 20. The refusal of vendor's wife to join in the conveyance, and the conse- 
 quent inability of vendee to give a mortgage on the unincumbered fee simple, 
 does not permit vendor to withdraw from his agreement, if vendee waives 
 the release of dower. Id. 
 
 21. One who has paid a portion of the price for a piece of land, under an 
 oral contract for the purchase thereof, and is ready and able to pay the resi- 
 due upon delivery to him of a deed of the lands, according to the terms of 
 the contract, may recover back the money so paid by him without proving a 
 formal tender of the residue of the money, if the vendor, upon request by 
 the vendee, has refused to perform his part of the contract. Cook v. Doggett, 
 N. S. i. 317. ^ , ^ 
 
 22. Vendee will not be deemed to have assented to a contract for sale of 
 land which only binds one of two vendors. Snyder v. Neefus, N. S. viii. 639. 
 
 23. Purchase from vendee at foreclosure sale acquires mortgagor's title had 
 before giving mortgage. i^M^Zw v. FWe, N. S. v. 512. 
 
 24. A purchaser by payment of price acquires t;he entire equitable title ; 
 vendor has no real interest. Fonda v. Sage, N. S. vi. 64. 
 
 25. Effect of subsequent conveyance by vendor. Id. 
 
 26. What constitutes a bonS. fide purchaser within the meaning of the re- 
 cording acts. Webster v. Van SUenbergh, N. S. vi. 192. 
 
 27. Requirements only apply to original purchaser. Id. 
 
 28. Purchasers under him protected, though with notice. Id. _ 
 
 29 Deed — escrow — death of vendor. Teneick-v.Flagg,'S.S. u. bi. 
 
 30. Nature of their respective interests after entry of vendee on land 
 under contract for purchase. SmiiA v. Goye, N. S. ii. 438. 
 
 31. Vendee's possession under such contract is notice to all persons of his 
 rights under the contract. Id. 
 
 32. Of land under executory contract — stipulation to "improve the prem- 
 ises " is void for indefiniteness. Morris v. Soyt, N. S. ii. 569. 
 
 CO 
 
946 VENDOE AND VENDEE. 
 
 33. Evidence of intention of vendor to rescind. 3Iorris v. Boyt, N. S. ii. 
 569. .„ 
 
 34. When vendee, in default in payment of instalments, asks specific per- 
 formance of the contract, he will be required to pay compound interest. Id. 
 
 35. Where, in a contract for the sale and conveyance of land, there was no 
 other description of the premises except what was contained in the words 
 "his farm," it being clear, from the contract, that these words referred to 
 the vendor's farm, it was held to be a case of latent ambiguity which wiia 
 susceptible of explanation by parol evidence. Brinkerhoff s . Olp, Executor, SfC, 
 N. S. i. 309. 
 
 30. Where there is a covenant to convey "free of all encumbrances," the 
 covenantee may rightfully refuse a doubtful title. Leggett v. The Mutual Life 
 Ins. Co., N. S. xii. 408. 
 
 87. In an action by the equitable owner of land against the holder of the 
 legal title, to obtain a decree for the legal title, where the equitable owner 
 has been in possession all the time, a judgment for damages is erroneous. 
 Moore v. Wade, N. S. xi. 264. 
 
 38. After the execution of a contract of sale, the vendor becomes trustee 
 for the purchaser of the land, and the latter trustee of the purchase-money 
 for the vendor, and any loss by fire falls on the vendee. Brewer -v. Herbert, N. 
 S. ix. 445. 
 
 89. A vendee who has the option of cincelling his contract any time before 
 payment of second instalment of purchase-money, if he assigns his interest 
 to a third party, abandons his right to terminate and remains liable to the. 
 vendor. Stevens v. Millard, N. S. xiv. 712. 
 
 40. The release by a joint-vendee of his right of action against the vendor, 
 is a release by the other vendee also. James v. Aiken, N. S. xiv. 760. 
 
 41. Where a contract for the sale of real estate contains a stipulation that 
 non-compliance with its terms shall work a forfeiture, upon certain condi- 
 tions to be observed by the vendor, such conditions must be strictly observed 
 by the vendor. Case v. Woleott, N. S. x. 670. 
 
 42. Where land sold by parol is afterwards conveyed, no one can gainsay 
 it. Sackett v. Spencer, N. S. x. 533. 
 
 48. The pre-emptor of territorial land under the Act of Congress of Sep- 
 tember 4th, 1841, is restrained from aliening it (with certain exceptions) be- 
 fore entry in the land ofBce, but after entry he may sell and pass a valid title 
 without waiting for the issue of his patent. Myers v. Oroft, N. S. xi. 308. 
 
 44. Construction of contract for sale of standing timber with stipulation of 
 vendee to cut and carry away. Murphy v. Garland, N. S. vii. 318. 
 
 45. Simple representation of value not a warranty. French v. Griffin, N. S. 
 vii. 703. 
 
 46. Agreement to sell land authorizing purchaser to take immediate pos- 
 session passes equitable title at once, and destruction of building by tire after 
 such contract is no defence to action for purchase-money. McKechine v. Ster- 
 ling, N. S. vii. 128. 
 
 47. A vendor cannot insist upon a forfeiture of the money paid on a con- 
 tract, although the vendee has failed to come up to the time stipulated, where 
 he is unable to perform his part on account of encumbrances. Wallace v. 
 McLaughlin, N. S. xii. 263. 
 
 48. A vendor cannot declare a forfeiture unless he is in a position at the 
 time to compel specific performance. Id. 
 
 49. Encumbrances on the land is sufficient defence for failure to make pay- 
 ments at times stipulated. Id. 
 
 50. Where vendor falsely represents that his title is good and free from en- 
 cumbrance, vendee cannot be held to be in default in making payments until 
 encumbrance is removed. Id. 
 
 51. Vendee entering under contract to purchase and failing to fulfil it, may 
 be treated as a trespasser or tenant-at-will. Woodbury v. Woodbury N S vii 
 318. 
 
 52. If vendor be unable to perform his agreement at time, purchaser need 
 not tender performance of his part. Karkcr v. Haverly, N. S. vii. 639. 
 
 53. Waiver by acts of purchaser. Id. 
 
 54. Where a party transfers his interest to an oil company afterwards in- 
 corporated, and the deed is made directly to such company by the vendors 
 
VENDOE AND VENDEE. 947 
 
 the company may maintain assumpsit for <he oil received by the vendors be- 
 tween the date of the contract and the incorporation. Snow v. Thompson Oil 
 Company/, N. S. viii. 753. 
 
 55. A vendor who has tal^en the notes of the vendee and given bond to 
 make title on the payment of the purchase-money, may, by an assignment of 
 the notes, pass his lien for the purchase-money, and the assignee may pro- 
 ceed in equity to subject the land to the payment of his debt. Robinson v. 
 Harbour, N. S. ix. 365. 
 
 56. Where the purchaser agrees to pay the balance of the purchase-money 
 in sixty days, when the deed is to be delivered, if the money is not paid nor 
 the deed tendered at the expiration of the time, the performance becomes in- 
 definite, but mutual and dependent when it does occur. Irvin v. BUakley, N. 
 S. xi. 135. 
 
 57. Whichever party first desires performance is bound to perform or ten- 
 der performance of his part of the contract. Id. 
 
 58. Where vendor proceeds on his legal title, a tender is not necessary. Id. 
 
 59. A vendee cannot insist upon a rescission on the ground of encum- 
 brances when he owes unpaid purchase-money sufficient to discharge them. 
 Id. 
 
 60. Covenants by vendor and vendee are to be construed as dependent or 
 independent, according to the intention of the parties; and in ascertaining 
 the intention, the court lays down the following rules: a. If a day be ap- 
 pointed for payment of money, or part of it, or for doing any other act, and 
 the day is to happen or may happen before the thing which is the considera- 
 tion of the money or other act is to be performed, an action may be brought 
 for the money or for not doing such other act, before performance; for it ap- 
 pears that the party relied upon his remedy, and did not intend to make the 
 performance a condition precedent; and so it is where no time is fixed for 
 performance of that which is the consideration of the money or other act. 
 b. But when a day is appointed for the payment of money, or for doing any 
 other act, and the day is to happen after the thing which is the consideration 
 of the money or other act is to be performed, no action can be maintained for 
 the money, &c., before performance, c. Where a covenant goes only to part 
 of the consideration on both sides, and a breach of such covenant may be 
 compensated in damages, it is an independent covenant, and an action may 
 be maintained for a breach of the covenant on the part of the defendant, 
 without averring performance in the declaration, d. Where the acts of the 
 parties are concurrent, and to be done or performed at the same time, the 
 covenants are dependent, and neither party can maintain an action against 
 the other without averring and proving performance on his part. Robinson v. 
 Barbour, N. S. ix. 355. 
 
 61. Where the vendor of land reserved the right to remove certain plants, 
 by a written agreement, the conveyance of the legal title which was in an- 
 other party, to the wife of the purchaser, without mentioning the reservation, 
 does not defeat the vendor's right. Ring -v. Billings, N. S. x. 134. 
 
 62. A title to an estate which is dependent on a question of fact, which it 
 is impossible to regard as reasonably certain, cannot be deemed a good and 
 sufficient title as between vendor and purchaser; and the latter', when such 
 is the case, is entitled to treat the title as insufficient, and to recover back his 
 deposit money. Simmons v. Heseltine, 0. S. vii. 512. 
 
 63. A covenant " to make a good and sufficient deed of conveyance " is not 
 satisfied by the execution of a deed good in point of form only ; 'here is an 
 implied undertaking to make a good title. Iiurwe.ll v. Jackson, 0. S. iii. 279. 
 
 64. In an executory agreement to purchase land, the purchaser is not bound 
 to examine the title before entering into the agreement, and if the title prove 
 defective upon examination, the vendee cannot be compelled to take it. Id. 
 
 65. The Implied warranty of the vendor ceases upon the execution of the 
 deed, as the vendee is presumed to have examined the title and to be satisfied 
 with it. Id. 
 
 66. The cases of Oazely v. Price, and Parker T. Parmlee, commented on. Id. 
 
 67. The covenants in this case are dependent covenants, and the execution 
 of the deed is a condition precedent to the payment of instalment subsequent 
 to the first. Id. 
 
 68. Where the title of a vendor who has covenanted to convey is totally 
 
948 VENDOE AND VENDEE. 
 
 destroyed, the vendee is not bound, either to offer to perform on his part, or 
 to require performance by the vendor, but may treat the contract as re- 
 scinded. Burwell v. Jackson, 0. S. iii. 279. 
 
 II. Recoupment for Improvements made. 
 
 69. Where vendee makes improvements before purchase-money is paid. 
 Campbell ^ Pharo'a Appeal, 0. S. vi. 752. 
 
 70. Sale made by infant voidable, but not void, and if disaffirmed, vendee 
 may recoup for improvements made. Weaver v. Jones, 0. S. iii. 56. 
 
 III. The Purchase of Land Subject to Liens — Personal Liability op 
 
 Vendee. 
 
 71. A conveyance of part of mortgaged premises " subject to the payment 
 of all liens now on the same," does not create a personal obligation on the 
 vendor to pay the mortgage or any part of it; but it makes the part so con- 
 veyed as against the residue subject to its proper proportion of the mortgage- 
 debt, and to that only. Hoy v. Bramhall, N. S. viii. 124. 
 
 IV. Collector's Sale fok Taxes. 
 
 72. A purchaser at a collector's sale, is bound to see that the sale is in 
 conformity with the law authorizing it. Hamilton y. Valiant, N. S. ix. 328. 
 
 73. A collector'% deed purporting to convey " all the right, title, and 
 estate" of the state, passes no title to the purchaser. Einstein v. Ouy, N. S. 
 ix. 328. 
 
 V. Eefect on Title of Purchaser by the Subsequent Reversal of Judg- 
 
 ment. 
 
 74. The rule that the title of a purchaser acquired under a judicial sale 
 will be held good, though the judgment be afterwards reversed, applies to all 
 purchasers, whether parties to the suit or not. Gordon v. Canal Co.. N. S. 
 viii. 279. 
 
 VI. Effect of the Acceptance of a Deed on Previous Contkaot. 
 
 75. Where a grantee of lands takes a deed to the same, with notice of a 
 prior conveyance, not then recorded, he is not an innocent purchaser, but 
 fakes subject to all the rights of the grantee under the prior conveyance. 
 BayUs v. Young, N. S. ix. 775. 
 
 VII. As to Quantity of the Land Sold and Warranty of Quantity. 
 
 76. When land is conveyed by deed, parol evidence is inadmissible to prove 
 a warranty as to the quantity. Cabot v. Christie, N. S. ix. 647. 
 
 77. A mutual and material mistake by the parties to the deed, as to the 
 quantity of land, is not a ground for relief at law, but in chancery. Id. 
 
 78. If party seeking specific performance claims allowance on the ground 
 of want of title to part, he must show a title out of the defendant. Davit v. 
 Pierrepont, N. S. xii. 328. 
 
 . 79. If a third party is in possession under the defendant at the time of 
 agreement, the title is presumed in defendant until contrary is positively 
 proved. Id. 
 
 80. Allowance will be refused, where the contract shows that the defend- 
 ant's interest was that of landlord or reversioner. Id. 
 
 81. Vendor being able to convey only part of the land agreed upon, vendee 
 may compel specific performance as to that part. Covell v. Moseley N. S. 
 vii. 191. 
 
 VIII. Effect of Deficiency in QujIntity and a Failure of Title as to Part 
 OF THE Land. 
 
 82. An administrator selling real estate under an order of the Orphans' 
 Court, will be required to make a proportionate abatement from the purchase- 
 money for a deficiency in the lot of ground sold, but the sale will not be 
 rescinded. Carmody v. Brooks, N. S. xiv. 400. 
 
 83. Mistake as to quantity of land sold. — In a sale of land, where both in 
 the agreement for the sale and in the deed carrying out the agreement the 
 premises are described as containing so many acres "more or less" those 
 words being inserted upon deliberation, because neither party professed to 
 know the precise quantity contained in the boundaries of the deed, the courts 
 will not interfere to correct any mistake as to quantity. And where the con- 
 tract has been consummated without fraud, misrepresentation, or conceal- 
 ment, as to the real quantity, the courts will not inquire whether there has 
 
VENDOE AND VENDEE. 949 
 
 been a mutual mistake as to the supposed quantity contained within certain 
 specified boundaries. Fame v. Martin, 0. S. i. 184. 
 
 IX. Op the Recording. 
 
 84. The recording of a deed in the registry of mortgages is an invalid 
 registry of the deed as such, and imposes no legal or constructive notice upon 
 third persons, but proof of actual notice is quite as effectual as constructive 
 notice. King v. Building Association, N. S. xi. 760. 
 
 85. Under the recording acts of Illinois, in order to defeat a subsequent 
 purchaser for value of an unrecorded title, he must have notice of a previous 
 conveyance, or of some fact to put a prudent man on inquiry. Wills v. Smith, 
 N. S. ix. 59. 
 
 86. A purchaser for value, though his deed is not recorded, will not be 
 postponed to creditors under a voluntary assignment. Spademan v. Ott, N. S. 
 X. 534. 
 
 87. A bond fide purchaser is one who buys property of another without 
 notice that some one else has a right to it, and pays a full and fair price for 
 it before notice. Spicer et al. v. Waters, N. S. xiii. 263. 
 
 88. To constitute a bond fide purchaser the consideration must be actually 
 paid, not merely secured to be paid. Id. 
 
 89. If the title of a purchaser is void as against the vendor's creditors by 
 reason of fraud the defect attaches to every subsequent purchaser not bond 
 fide. Id. 
 
 X. Of Notice op Liens and Outstanding Equities. 
 
 90. The expression " more or less " in describing quantity of land is notice 
 to the purchaser that quantity is not of the essence of the contract. Sloth- 
 ower V. Gordon, N. S. vii. 251. 
 
 91. Sales by trustees stand upon the same rules as to representations, and 
 the rule caveat emptor, as other sales. Id. 
 
 92. The vendor's lieu exists against a purchaser having notice of the deed 
 which shows on its face that the consideration is yet to be paid. Cordova v. 
 Mood, N. S. xiii. 336. 
 
 93. Taking a note from vendee with security is not an absolute abandon- 
 ment of the lien. Id. 
 
 94. The presumption of abandonment of the lien, may be rebutted by the 
 vendor's testimony if it is positive. Id. 
 
 95. A purchaser with notice of outstanding equities, taking the legal title 
 from the bond fide purchaser, who had no notice of such outstanding equities, 
 holds the land discharged from the equities. Gardy. Patterson, 0. S. iv. 702. 
 
 96. Registry of deed no avail when purchaser had notice of prior unregis- 
 tered deed. Butler v. Viele, N. S. v. 512. , 
 
 97. Purchaser bound to notice rights of party in possession. Merithew v. 
 Andrews, N. S. v. 512. 
 
 98. When purchaser bound to respect rights of third party. Id. 
 
 99. Vendee's duty upon receiving notice of rescission of agreement on de- 
 fault of payment. Tibbs v. Morris, N. S. v. 884. 
 
 100. The usual covenants inserted in a conveyance. Wilson v. Wood, N. S. 
 V. 64. 
 
 101. Actual notice to the purchaser would supply i» defective registry. 
 Smith's Appeal, N. S. iv. 255. 
 
 102. Where purchaser accepts a deed which recites the conveyance of "all 
 of a certain lot which has not been conveyed to otherT)ersons by the gr.antor," 
 he will be deemed to have notice of a prior grant. Quinlan v. Pierce et al, N. 
 S. xiii. 719. 
 
 103. Second purchaser without notice protected, though his vendor had 
 notice. Webster v. Van Steenbergh, N. S. vi. 192. 
 
 104. What possession of premises will operate as constructive notice. Id. 
 
 105. The memoranda on the margin of the appearance and execution 
 docket, naming the attorneys in the cause, are not so far a part of the record, 
 as to charge a purchaser of land, under a sheriff's vendee, with notice that 
 such vendee was the attorney of the plaintiff in the execution, and therefore 
 a trustee for him by constructive trust. Read v. Bell, 0. S. i. 442. 
 
 XI. Of Rbpeesentations and Concealments at the Time op Sale. 
 
 106. In an action upon a note given for the price of land, the defendant 
 cannot be allowed to prove, by way of recoupment iu damages, that the plain- 
 
950 VENDOE AND VENDEE. 
 
 tiff made false representations as to the quality and P'"'"^"f .'^7"^'''^p''trLlv 
 soil, and the number of acres contained within boundaries wh;cU .^"® ■> 
 pointed out, by which tlie defendant was deceived and thereby luauceu lu 
 make the purchase. Gordon -v. Farmelee, N. S. i. 178. ,, a n th? 
 
 107. Equity will rescind a contract for the purchase of land, made on i e 
 faith of representations by the vendor, which are fraudulent and talse. uiecn 
 \. Von Lilienthal etux-ffi. S. xi'ii. 720. , 
 
 108. The fact that purchaser visited the land himself is not concCuawe, iiiai 
 he did not finally purchase on the faith of the representations. Id- 
 
 109. Mere inadequacy of consideration is not sufficient ground tor rescinU- 
 ing a contract. Id, j ■ f f 
 
 110. A vendor who assures a purchaser that the neighborhood is Iree irom 
 sickness, when it is subject to fever and ague, cannot enforce an agreement 
 to purchase against the vendee. Holmes' Appeal, N. S. xiv. 760. 
 
 111. Such an agreement would not be enforced if the neighborhood was 
 unhealthy, and no misrepresentation had been made by vendor. Id. 
 
 112 In an action for fraudulent representations of the vendor, the vendee 
 expressly said he would not purchase lands held under a tax title, the vendor 
 sold him a tax title, falsely representing it, it was fraud. Held, to be correct. 
 l5?£?i/fev.^Je2, N. S. X. 750. . 
 
 113 To show failure of consideration of note given for purchase-money, 
 vendee may prove that he was induced to purchase by fraudulent represen- 
 tations of vendor. Swain v. Saltmarsh, N. S. xiv. 318. 
 
 114. A purchaser who buys laud at a lower price by representing a mort- 
 gage as an encumbrance, which was not, will be compelled to make good the 
 amount of it to the vendor. Wiiians v. Winans, N. S. viii. 186. 
 
 115. If the purchase of the laud was induced by a false and fraudulent 
 representation as to the quantity of land, the grantee may sustain an action 
 on the case against the grantor for the fraud. Cabot v. Christie, N. S. ix. 64i. 
 
 116. Vendee may have action for fraudulent representations as to tbe 
 boundaries of his lot. Newell v. Horn, N. S. iv. 448. 
 
 117. Vendee under articles mortgaged the land, and afterwards he and 
 vendor rescinded their contract and vendor sold to another — rights of the 
 parties. Alden v. Garver, N. S. iv. 448. 
 
 118. If the purchaser at a sale under a deed of trust pays his money and 
 takes a deed before he has notice, either in fact or constructively by legal 
 record, of a prior deed, his title is protected, even though his vendors, the 
 trustee and beneficiary, had notice in fact of the prior deed. Hampton v. 
 Stevens, N. S. x. 107. 
 
 119. A deed of trust recited that it was made to secure a promissory note 
 due the beneficiary, whereas in fact it was made to indemnify him as surety 
 on a note to a third person. Held, that the amount of the debt being cor- 
 
 .rectly described, and the transaction being without fraud, there was no such 
 misdescription as should affect the validity of the deed. Id. 
 
 120. On a sale of certain leases by the defendant to the plaintiffs, the former 
 stated that the property rented for $4000 yearly, and a written statement was 
 produced by the defendant of the rents to be received from the property, 
 footing at about that amount. Among the leases therein specified was one for 
 ten years, at a, yearly rent of $600, Nearly seven years and ten months 
 of the term was expired. In fact, the rent to accrue upon that lease, there- 
 after, was only $111.11 annually, the sum of $5000 having been already paid 
 upon such lease, and indorsed thereon, according to the terms of payment 
 •specified therein. Held, that the plaintiffs having been actually deceived and 
 defrauded by means of such representation, an action lay for damages. 
 Gbovek, p. J., dissenting. Clark v. Rankin, N. S. vi. 368. 
 
 121. Held, also, that the plaintiffs had a right to rely upon the representa- 
 tions made by the defendants that the rents reserved amounted to $4000 
 annually, and that to make up this sum, the annual rent on the railroad lease 
 was $600. Id. 
 
 122. That, in other words, the omission of the plaintiffs to examine the 
 lease and the receipts upon it, was not such negligence as would deprive 
 them of a right of recovery. Id. 
 
 123. That the facts being established by the undisputed evidence, the 
 question whether the omission of the plaintiffs to examine the railway lease 
 
VENDOR AND VENDEE. 951 
 
 involved such' a want of care and prudence as to defeat their right to recover 
 was a question of I:iw to be decided by the court, and should not have been 
 submitted to the jury. Clark v. Rankin, N. S. vi. 3U8. 
 
 124. Having acted upon assayer's report, and there being no collusion or 
 fraud, he was estopped from alleging misrepresentation in the contract. 
 Weist V. Grant, N. S. xii. TWli. 
 XII. Op Actions to Recover the Purchase-monet. 
 
 12-5. An auctioneer has such a special property or interest in the subject- 
 matter of the sale, that he may sue for the price in his own name, unless the 
 principal or real owner elect to sue, and it is not necessary to prove any 
 special interest or property ; it flows from his position as auctioneer, and 
 proof that he has no interest, will not defeat the action. Main y.Mintiirn 
 S. i. 183. 
 
 1116. If an account is payable in specific articles, upon demand, no action 
 will lie for the recovery of money ; nor can such account be used as a set-oif, 
 until after a demand and refusal to pay in the specified articles, and in the 
 mode stipulated in the contract. Smith v. Tiffany, N. S. i. 508. 
 
 127. Where a vendee seelss to rescind a contract on the ground of fraud, 
 he must return the property within a reasonable time, and in such a way as 
 to place the vendor in substantially the same condition. Manahan r.Noyes, 
 N. S. xii. 670. 
 
 128. Whether four days is a reasonable time is a question of fact and not 
 of law. Id. 
 
 129. A court of equity will not compel one who has agreed to purchase 
 land, to accept a title so doubtful that it may be exposed to litigation. Rich- 
 mond V. Gray, N. S. i. 500. 
 
 130. Where a vendor of real estate on default in the terms of payment by 
 vendee, goes into a court of equity and has the contract declared void and 
 of no effect, and is remitted to his original title and possession, this is not a 
 proceeding in rescission, but in affirmance of the contract, and does not en- 
 title the vendee to recover back the part of the purchase-money already paid. 
 Hanshrough et al. v. Peck, N. S. vii. 74. 
 
 131. It is a good defence to a suit on a note for the purchase-money, that 
 the vendee, at the request of vendor, deposited the money in the hands of a 
 third party to be paid when a conveyance was executed. Eads v. Murphy, 
 N. S. xiv. 400. 
 
 132. Vendee evicted under prior mortgage, is entitled only to interest on 
 the purchase-money from the date of the master's deed. Ohling v. Luitjens, 
 N. S. iv. 441. 
 
 133. What is necessary on the part of the vendor before ejectment, where 
 purchaser has made default under an executory contract. Eotaling -^.Holal- 
 ing, N. S. vi. 511. 
 
 134. If no agreement as to time, balance of purchase-money under -parol 
 contract due upon possession taken. Id. 
 
 135. Purchaser entering without paying balance due, is in default. Id. 
 
 136. Whether demand be necessary to sustain ejectment in such case, and 
 effect of demanding too much. Id. 
 
 137. It is no defence to suit for purchase-money, that vendee has a deed 
 with covenants of title, and that there is an outstanding title, if it has not 
 been asserted. Bueklee et al. v. Northern Bank of Kentucky, N. S. xiv. 63. 
 
 138. The refusal of a purchaser to complete his purchase, because there is 
 a lease on the premises, will not deprive him of the right to object that there 
 are other incumbrances on the same property. Morange v. Morris, N. S. i. 239. 
 
 139 Ignorance of an encumbrance, or of a defect not appearing on the face 
 of the title, is immaterial in a suit against the vendee for purchase-money. 
 Feck et al. v. Jonee. N. S. xii. 408. ,, , , w 
 
 140. Vendee cannot defalk from the purchase-money the value of a public 
 road opened through the land. Id. ,. c li. 
 
 141 A purchaser in possession of land, who has paid a portion of the con- 
 sideration-money, and promised to pay the rest, cnnnot set up the statute, m 
 a suit by the vendor, for the balance of the money. Oagger v. Lenmng, N. 
 
 S. X. 135. ^ . u '■ 
 
 142 A vendee, under articles of agreement, the purchase-money being 
 unpaid, is a proper party to an action of partition. Longwell v. Bentley, 0. 
 S, ii. 571. 
 
952 VENDOE AND VENDEE. 
 
 143. W. bought certain silver mines, upon the representation that they 
 would yield a. certain amount, the contract to he void, if W. should not ap- 
 prove the report of a selected aasayer ; after the report he paid a large part 
 of the purchase-money, but, they not being up to the representations, he re- 
 fused to pay the rest. Held, that he was liable. Weiat v. Grant, N. S. xii. 792. 
 
 144. A purchaser of real estate, who has paid part of his purchase-money, 
 or done an act in part performance of his agreement, and then refuses to 
 complete his contract, the vendor being willing to do his part, will not be per- 
 mitted to recover back what has been thus advanced or done. Batiihrmigh et 
 al. v. Peck, N. S. vii. 74. 
 
 145. Where a parol promise is substantially the same as a previous written 
 one, and nothing is done under the latter which the promissor was not al- 
 ready bound to do under the former, no new consideration passing between 
 the parties, the existence or enforcement of the parol contract cannot be set 
 up as a rescission of the former written one. Id, 
 
 146. A purchaser, after payment of part of the purchase-money, intended 
 to abandon the contract, and the vendor promised, if he would pay up arrears, 
 to indulge him for a certain time. The purchaser paid up the arrears, but 
 the vendor enforced his contract within the time (as alleged) that he prom- 
 ised to forbear. Held, that there was no consideration for the promise, the 
 purchaser having done nothing he was not already bound to do by his orig- 
 inal contract. Id. 
 
 147. The remedy against a purchaser, who refuses to complete a purchase 
 under a decree or judgment of a court of equity, is by an application to the 
 court to compel him to complete it, or to resell the property and hold him 
 liable for the loss and the additional expenses. Miller v. Gollyer, N. S. i. 572, 
 
 XUI. Lien op Vendor fob, Unpaid Phrohasb-Monet. 
 
 148. By a decree of the Circuit Court, a claim was held to be a lien on an 
 entire canal. From this decree an appeal was taken to the Supreme Court, 
 pending which the canal was sold under the decree, and the plalntiif in the 
 decree became the purchaser. The Supreme Court reversed the decree on 
 the ground that the claim was a lien on a section of the canal only. Held, 
 that plaintiff's title under the sale was not affectsd by the reversal. Gordon 
 V. Canal Co., N. S. viii. 279. 
 
 149. A purchaser is not entitled to the rents accruing between the time of 
 sale and delivery of the deed, on the foreclosure of a mortgage. Mitchell v. 
 Bartlett, N. S. viii. 441. 
 
 150. Vendor's lien is only waived by express agreement, or by taking col- 
 lateral security; the party disputing the lien has the burden of proof. Du- 
 bois V. Hull, N. S. iv. 511. 
 
 151. Purchaser of real estate with warranty cannot detain purchase-money, 
 if his knowledge and the state of facts continue the same as they were at 
 the date of purchase. Wilson v. Cochran, N. S. iv. 640. 
 
 152. Vendor's lien rests upon intention of the parties. What is deemed a 
 waiver thereof. Cowls v. Varnum, N. S. v. 448. 
 
 153. Vendor not bound to abandon his lien until purchase-money paid, 
 though he may have accepted new collateral security. Johnson v. Scott, N. S. 
 iii. 634. 
 
 154. The vendor of real estate retains a lien for the unpaid purchase- 
 money, even after conveyance of the legal title to the vendee. Schwarz v. 
 Stein, N. S. viii. 702. 
 
 155. The possession of land by a stranger to the record title, is sufficient 
 notice of a claim to put a purchaser on inquiry. Pell v. McElroy, N. S. viii. 703. 
 
 156. Whenever a vendor has manifested an intention not to rely on his lien 
 upon the lands sold for the purchase-money, he will be considered as having 
 waived it. Coit v. Fougera, N. S. i. 571. 
 
 157. Frim& fade, a vendor's lien exists in all sales of real estate, for the 
 unpaid purchase-money. McGonigal v. Plummer, N. S ix. 583. 
 
 158. The lien will be considered waived, if an independent security is 
 taken. Id. 
 
 159. The vendor has a lien for unpaid purchase-money against the vendee, 
 and all parties claiming as volunteers or with notice, under him. Wilson v 
 Lyon, N. S. Ix. 719. 
 
 160. Taking a policy of insurance on the life of vendee, where it is not 
 taken as independent security, does not waive the lien. Id. 
 
VENDOE AND VENDEE. 953 
 
 161. Lauds encumbered with a vendor's lien for tlie unpaid portion of the 
 purohase-money, having been sold by the vendee to a joint-stock company, 
 and title conveyed to a trustee for said company. Held, that the stockholders 
 of said joint-stock company, there being no trustee at the time to represent 
 them, are proper parties to a bill to redeem said lands from a purehiiser at 
 sheriff's sale under proceedings by the vendor against the original vendee 
 solely to foreclose his lien. King v. Building Au'n, N. S. xi. 760. 
 
 1(32. Part payment of the note and taking a new one does not displace the 
 lien. Cordova v. Hood, N. S. xiii. 336. 
 
 163. The vendor's lien for unpaid purchase-money is extinguished by re- 
 ceiving a note with security from the purchaser, and delivering a deed. Car- 
 rico V. The Farmers' and Merchants' Bank, N. S. x. 414. 
 
 164. If part of the purchase-money was to be secured by a mortgage pay- 
 able in five years, and there has been a delay of that amount of time before 
 final decree, the vendor is not entitled to cash. King v. Ruekman, N. S. xiii. 63. 
 
 165. The measure of damages for refusal to convey is the same as in case 
 of sale of personal property, when the equity of the case permits. Id. 
 
 166. No compensation will be allowed for lands which the vendor had con- 
 tracts for, but was unable to convey. Id. 
 
 167. A vendor who takes possession of land under articles of sale is not 
 liable for use and occupation. Carpenter v. United States, N. S. xiii. 336. 
 
 XIV. Eemedt of a Vendee to Enpoeoe Specific Pebfoemance of the Agree- 
 ment. 
 
 168. Specific performance will not be decreed where it is against equity 
 under the circumstances. Davit v. Fierrepont, N. S. xii. 328. 
 
 169. The gToss neglect of a complainant in paying the principal and in- 
 terest, and his laches for nineteen years, would deprive him of the right to 
 performance. Id. 
 
 170. Where the vendee of land covenants to pay for the same by instal- 
 ments, and the vendor covenants to make him a title when the last instal- 
 ment is paid, the covenants of the vendee to pay the instalments, except the 
 last one, are independent covenants. But the covenant of the vendee to pay 
 the last instalment, and the covenant of the vendor to make title, are depend- 
 ent covenants, and to entitle either of them to maintain an action against 
 the other, he must aver and prove performance or tender or offer of perform- 
 ance of his part of the agreement. Robinson v. Harbour, N. S. ix. 35.5. 
 
 171. Damages for breach of agreement to reconvey. Bawrence v. Chase, N. 
 S. vii. 441. 
 
 172. Whenever damages may be recoverable by a vendee for matters aris- 
 ing out of the contract of purchase, they may be insisted on as set-off. Eads 
 V. Murphy, N. S. xiv. 400. 
 
 173. The grant of equity powers to the courts of Pennsylvania does not in- 
 terfere with their jurisdiction to enforce performance of such an agreement 
 in an ejectment at common law. Corson v. Mulvany, N. S. iv. 478. 
 
 174. After decree for completion of executory contract for purchase of land, 
 at suit of vendee's executor, it is too late for vendor to allege want of notice 
 of the taking of testimony. Thompson v. McKinley, N. S. iv. 447. 
 
 175. Vendee, on refusal of tender of purchase-money, may pay it into 
 court, and will not be liable for interest. Id. 
 
 176. It is unnecessary for the purchaser of real estate to offer to pay the 
 unpaid purchase-money to his vendor who has resold, before bringing suit. 
 Hawley v. Keeler, N. S. xi. 724. 
 
 177. In a suit to foreclose a vendor's lien it is necessary to make subse- 
 quent purchasers, whose possession is known to the vendor, parties to the 
 suit, otherwise their interest is not foreclosed. King v. The Building Associa- 
 tion, N. S. xi. 760. 
 
 178. A vendor who unwarrantably refuses to accept the purohase-money 
 and make conveyance, is not entitled to interest on the purohase-money from 
 the time it was to be paid until he is compelled by final decree to convey. 
 King v. Ruekman, N. S. xiii. 63. 
 
 179. Where suit is brought by vendee to enforce an agreement for the sale 
 of land, on a mortgage for two years, and there is no allegation that the ven- 
 dee's circumstances have changed since the making of the agreement, evi- 
 dence is not admissible to show that the contemplated use of the land WiU 
 
954 VENDOR AND VENDEE. 
 
 destroy its value within two years, and that the mortgagor is otherwise un- 
 able to pay. Corson v. Mulvany, N. S. iv. 478. , 
 
 180. A decree for specific performance of an agreement to purchase lana 
 will not be ordered, if the vendor could nut make a good title thereto at the 
 time when, by the terms of the agreement, he was to deliver a.deed thereot, 
 or for more than six months after the vendee declined to accept a deed on 
 account of a defect in the title; although he may be able to do so at the 
 time when the decree is sought for, or the bill filed. Richmond v. Gray, JN. b. 
 
 i. 500. 11-* 
 
 181. Before a purchaser can rescind the contract of purchase, and claim to 
 recover back moneys paid by him on account of the price, he is bound to re- 
 store to the vendor the possession of the premises. He cannot occupy under 
 the contract, and thus enjoy the benefit of it, and at the same time treat it 
 as rescinded, and reclaim the purchase-money. Goelth v. White, JN. b. i. diO. 
 
 XV. Action against Vendob on his Covenant. , , . ^ i -c 
 
 182. The covenant of seisin is broken as soon as the deed is executed, it 
 the title is bad. Dale v. Shively, N. S. xi. 271. 
 
 183. The damages for breach, as a general rule, is the consideration-money 
 
 and interest. Id. . , , . .„ , v ■* j 
 
 184. Where a vendee buys in paramount title his recovery will be limited 
 to the amount he pays and interest. Id. _ 
 
 185. In some cases the vendee may also recover the costs and attorney s 
 fees paid in defending a suit in reference to the land. Id. 
 
 186. The measure of damages in an action by vendee against vendor for 
 breach of contract to convey real estate, where vendee has made improve- 
 ments, is the difference between the unpaid purchase-money^and the value 
 of the lands at the time of breach. Case v. Wolcott, N. S. x. 670. 
 
 187. Where the vendor fails to deliver possession, having received the 
 purchase-money according to his agreement, he is liable either to return the 
 money or deliver possession. Hoaff v. Owen, N. S. x. 751. 
 
 188. Where one purchases land, and assumes in his deed to pay off" a bond 
 and mortgage of his grantor, to which such land is subject, he thereby 
 becomes a surety in respect to the mortgage-debt. Elapworth v. Dressier ^ 
 Ise, N. S. i. 698. 
 
 189. Vendor of an equity of redemption may sue on promise made by the 
 purchaser to assume and cancel the mortgage, and no action lies by the 
 mortgagee. Mellen v. Whipple, 0. S. iii. 59. 
 
 XVI. Of the Re-sale by the Vendok. 
 
 190. Where purchaser refuses to receive the deed or pay for the land the 
 vendor may either keep it or sell it, and if he sells he need not consult the 
 purchaser in relation thereto. Griswold v. Sabin, N. S. xii. 328. 
 
 191. This right of the vendor to re-sell the goods, however, when the .con- 
 tract is not rescinded, and when there is no express stipulation authorizing 
 it in the contract, can only be exercised after due notice to the purchaser, 
 of the time when, and the place where, the re-sale will be made. McEachron 
 y. Randies, N. S. i. 241. 
 
 XVII. Of the Sale of Chattels, and how far Delivery is Necessary. 
 
 192. Where the subject of a sale is not reasonably capable of an actual 
 delivery, as in the case of the furniture of a large hotel, a consiruclive de- 
 livery will be sufiBcient. McKibbin v. Martin, N. S. x. 406. 
 
 193. The possession of the chattels by the vendee must be exclusive of the 
 vendor. Id. 
 
 194. On a sale of machinery to be fixed to realty, part of the price in cash 
 and part to be secured by a chattel mortgage, the title will pass on the day 
 of sale, though delivery of mortgage is delayed. Matter of Hicks, N. S. x. 477. 
 
 195. Notice of the defective quality of goods purchased by sample must be 
 given at once to the vendor, in order to make him liable to furnish others. 
 Woodward v. Libby, N. S. x. 600. 
 
 196. Where full opportunity is aiforded to a purchaser for examining 
 property, and the quantity depends on the payment, he cannot after sale 
 claim a deduction from the price on the ground of misrepresentation as to 
 quantity. Pattison v. JenHns, N. S. a. 669. 
 
 197. Vendor having informed the agent sent to buy goods of his price, and 
 
VENDOE AND VENDEE. 955 
 
 the agent, though he had no authority to make a bargain, having taken away 
 the goods, vendor may recover the price named. Booth v. Bierce, N. S. iii. 
 
 198. The delivery and acceptance must be unequivocal to satisfy the re- 
 quirements of the Statute of Frauds. Prescott v. Locke, N. S. xii. 262. 
 
 199. To constitute delivery nothing must remain to be done to the prop- 
 erty by either party. Id. 
 
 200. The purchase of property from one in possession but who has no 
 authority to sell, will not change the title, unless the purchase is a bon& fide 
 one without notice, and a purchase by a firm of which one member has 
 notice, is not bon& fide. Ruckman v. Becker, N. S. xii. 469. 
 
 201. Where upon a sale of chattels anything remains to be done, no title 
 passes to the vendee. Walrath t. Ingles, N. S. xii. 600. 
 
 202. On a sale of logs, if the agreement is, that the title shall pass when 
 they are deposited in a certain place, it will so pass, though the vendor is 
 still required to scale them. Morrow v. Reed, N. S. xii. 194. 
 
 203. Where a party agrees to take an article on trial, to pay the price if it 
 suits, otherwise to return it, and he fails to return it, the vendor may treat 
 it as an absolute sale, and recover the contract price. Spickler v. Marsh, N. 
 S. xii. 200. 
 
 204. Where the agreement is that the title to certain logs shall pass when 
 they are deposited in a certain place, if the vendor deposits them in such 
 place, the title passes, whether he Intended to deliver them then or not. 
 Morrow v. Campbell, N. S. xii. 200. 
 
 205. A sale of growing trees otherwise absolute, is not rendered condi- 
 tional by stipulation as to time of removal. Hoit v. The Straiten Mills, N. S. 
 xiv. 326. 
 
 206. If no time is fixed, grantee has a reasonable time for removal. Id. 
 
 207. If grantee enters and removes the trees after expiration of reasonable 
 time, he is liable in trespass for the entry. Id. 
 
 208. To maintain an action for goods bargained and sold, the property 
 must have passed to the vendee, even if the goods are not delivered. Gordon 
 V. Norris, N., S. xi. 271. 
 
 209. The measure of damages is the contract price of the goods. Id. 
 
 210. If the vendee refuses to receive and pay for the goods, the vendor's 
 measure of damages is the difference between contract price and the market 
 price at the time they should have been received. Id. 
 
 211. But in case of a statue, picture, or a specific article made according 
 to order, the vendor may recover the full contract price. Id. 
 
 212. The vendor may sell the goods at auction, and recover the difference 
 between the price realized and the contract price. Id, 
 
 213. The validity of a vendor's claim to recover the price of goods sold 
 with knowledge that the purchaser intends to make an unlawful use of them, 
 depends upon the circumstances whether or not the original vendor partici- 
 pated actively, to a greater or less extent, in the subsequent unlawful dis- 
 position of the goods; or, whether the expectation of advantage and profit 
 to him, growing out of the unlawful disposition of the goods by the purchaser, 
 entered into and constituted a part of the inducement and consideration of 
 the original sale. Hill v. Spear, N, S. xi. 497. 
 
 214. If such expectation of advantage to the vendor was an ingredient in 
 the consideration for the original sale, or if the original vendor participated 
 in the subsequent unlawful disposition of the goods, he cannot recover the 
 price of them in our courts. Id. 
 
 215. Mere belief on the part of the seller of goods that the purchaser buys 
 for the purpose of carrying them into another state, to be there resold in 
 violation of law, does not invalidate the sale. Id. 
 
 216. The mere solicitation, by a dealer in liquors, of orders in the future 
 for such goods, even though the person soliciting such orders may have had 
 reason to believe, and did believe, that if such liquors should be ordered and 
 purchased they would be resold by the purchaser in violation of law, is not 
 such a circumstance as will affect the validity of a subsequent sale of such 
 goods in a state where such sale is not prohibited by law. Id. 
 
 217. In the absence of any agreement the delivery of goods by a vendor 
 to a railroad is no delivery to the purchaser. Everett v. Varks, N. S. xi. 724. 
 
956 VENDOE AND VENDEE. 
 
 218. If the vendor makes an unconditional delivery of the article, a bond 
 fide purchaser from the vendee acquires a valid title, though the original 
 vendor was induced to sell by fraud of the vendee. Bernard et al. v. Campbell, 
 N. S. xiil. 263. 
 
 219. It is on the principle of estoppel, that the rightful owner is prevented 
 from asserting his claim against a bond fide purchaser, after delivery of pos- 
 session. Id. 
 
 220. When anything remains to be done by either or both the parties to a 
 contract of sale, before delivery, the title does not pass. Gibbs v. Benjamin, 
 N. S. xiii. 93. 
 
 221. So inflexible is this rule, that when the property has been delivered, 
 if anything remains to be done by the terms of the contract before the sale 
 is complete, the title of the property still remains in the vendor. The con- 
 tract must be executed to effect a complete sale. Id. 
 
 222. The mere delivery of goods to the vendee is not sufficient to take a 
 case out of the Statute of Frauds ; he must accept and receive them. Id. 
 
 223. Sale of goods — property and right of possession. Godts v. Rose, 0. 
 S. iv. 574. 
 
 224. Sale and delivery of the articles, and then a re-transfer to the vendor 
 as bailee, effect of. Johnson v. Hays, 0. S. iv. 689. 
 
 225. The title to articles too ponderous for actual delivery, may pass by 
 symbolical delivery. Thompson v. B. S; 0. Railroad Co., N. S. viil. 318. 
 
 226. Title to property will not pass where anything remains to be done to 
 ascertain it. Camp v. Norton, N. S. viii. 319. 
 
 227. Refusal to deliver after demand, entitles the vendee to an action for 
 non-delivery. Id. 
 
 228. The consummation of the sale of a chattel, is the delivery, and subse- 
 quent agreements as to time of payment does not alter it. Blow, Adm. v. 
 Spear, N. S. viii. 383. 
 
 229. Where covenants are mutual and dependent, performance or an offer 
 to perform, on the one part, is a condition precedent to the right to insist 
 upon performance on the other part. Sill v. Grigsby, N. S. viii. 511. 
 
 230. Where the title to property is to remain in the seller, until the pay- 
 ment of the price upon a fixed day, such payment is a strict condition prece- 
 dent, and the right of property is not vested In the purchaser. Putnam v. 
 Lamphier, N. S. viii. 701. 
 
 231. The sale of a horse belonging to the United States, by an officer of the 
 army, to a bonS, fide purchaser, but without the authority or assent of the 
 government, will not pass the title against the latter. Johnson v. Frisbie, N. 
 S. viii. 756. 
 
 282. Persons dealing with agents or officers in regard to public property, 
 are bound to know the extent of their authority. Id, 
 
 233. Where the consignee of the cargo of a vessel nt sea, sells the cargo 
 and delivers the bill of lading, properly endorsed, to the purchaser, the sale 
 is valid and passes the complete title to the goods. Audenreid v. Randall, N. 
 S. vii. 659. 
 
 234. Delivery of the bill of lading is, under the circumstances, a sufficient 
 delivery of the goods to take the case out of the operation of the statute of 
 frauds. Id. 
 
 235. If the purchaser afterwards refuse to accept the goods, vendor may 
 sell them and recover the loss from the purchaser. Id. 
 
 236. On the 16th of March, at Boston, A. sold to B. a cargo of coal then at 
 sea, and delivered to B., properly indorsed, a bill of lading, dated JIarch 
 13th, at Philadelphia, and also a bill of sale of the coal, dated also March 
 13th, though the evidence showed that it was in fact made on the 16th, and 
 was part of the transaction at Boston on that day. Before the arrival of the 
 coal, B. offered A. one dollar a ton to take it off his hands, which A. refused. 
 On the arrival of the coal, B. refused to receive it, and claimed that the con- 
 tract was within the statute of frauds and void. After some correspondence, 
 A. sold the coal at public auction, and brought suit for his loss in the trans- 
 action. Held, that he was entitled to recover. Id. 
 
 237. Time the title passes. Subject discussed, N. S. iv. 138. 
 
 238. Bill of sale of all the interest of one partner in partnership property 
 passes title to money not included in the schedule. Oram v. Bank N, S. iv. 307. 
 
VENDOR AND VENDEE. 957 
 
 239. If a bill of sale of goods described as marked A. &c., includes all 
 vendor has on hand, the tiile passes; otherwise, not till a separation is 
 made. Ropes ▼. Lane, N. S. iv. 446. 
 
 _ '240. Sale and constructive delivery to agent of two purchasers passes the 
 title as against a third purchaser. Id. 
 
 _ 241. An unconditional delivery of goods without payment does not pass the 
 title, where there has been fraudulent misrepresentation. Hicks v. Campbell. 
 N. S. viii. 190. 
 
 242. A vendor cannot demand immediate payment of the purchase-money, 
 after an agreement to extend the time of such payment. Outhe v. La Fontain. 
 N. S. viii. 190. 
 
 243. A vendee cannot rescind a contract of sale after receiving part of the 
 property without an offer to restore. Woodruffs. Peterson, N. S. viii. 190. 
 
 244. Purchaser may recover back price, when failure to deliver caused by 
 vendor's omission to properly direct the carrier. Finn v. Clark, N. S. v. 574. 
 
 245. Omission to discover want of signature to bill of lading, is mistake of 
 fact for which sale may be rescinded, and agent of vendor may yield to the 
 rescission. Quimby v. Carr, N. S. iii. 697. 
 
 246. Showing the pieces of several machines and offering to put one together, 
 is not a delivery to entitle the plaintiffs to recover the contract price. Gan- 
 son V. Madigan, N. S. iii. 508. 
 
 247. Contra, if they had set apart a machine for defendants. Id. 
 
 248. Failure to deliver proper quantity of goods is a bar to an action for 
 the price of goods delivered. Catlin v. Tobias, N. S. iii. 571. 
 
 249. Vendee may use the goods as delivered without waiver .of defence for 
 breach of contract. Id. 
 
 250. Plucking a handful of grass and delivering it to a purchaser, on a sale 
 of the grass, is not such a constructive delivery, as will pass the title against 
 third persons. Lamson v, Patch, N. S. iii. 64. 
 
 251. Agreement to purchase wheat, and payment of price without separa- 
 tion, manual delivery, bill of sale, or order on keeper of elevator, no transfer 
 of title. Rodee v. Wade, N. S. vi. 447. 
 
 252. When purchaser entitled to defend as one bond, fide, for value and 
 without notice of prior equities. Downer v. Bank, N. S. vi. 448. 
 
 253. Right of party in possession, claiming adversely to others, to sell hay 
 to third party. Stock-well v. Phelps, N. S. vi. 127. 
 
 254. Admixture merely will not transfer ownership. Owner may take from 
 common bulk. Denial of his right and refusal to permit it, is conversion. 
 Morgan v. Gregg, N. S. vi. 191. 
 
 255. In a sale for cash on delivery, demand of price from purchaser's 
 agent, receiving goods, sufficient. Id. 
 
 256. Waiver of cash payment by vendor. Id. 
 
 257. It is for the jury to determine whether there has been a sufficient 
 tender by the vendor, of goods purchased on buyer's option as to time. 
 Lockhart v. Bonsall et al., N. S. xiv. 759. 
 
 258. It is a purchaser's duty to give reasonable notice of the place of de- 
 livery, and to be there ready to receive the goods. Id. 
 
 259. The purchaser is not bound to accept more or less than his contract, 
 but if there is a larger quantity from which he might separate his purchase, 
 it is sufficient. Id. 
 
 260. If the vendor offers to deliver in good faith, he is not bound to set 
 aside the precise quantity named, before offering to deliver. Id. 
 
 261. Insolvency of vendee at the time of purchase is not sufficient evidence 
 of fraud to set aside sale of goods, and enable the vendor to replevy. Rod- 
 man V. Thalheimer, N. S. xiv. 199. 
 
 262. There must be artifice, trick, or false pretence in obtaining posses- 
 sion. Id. , . , . . 
 
 263. The doctrine of insolvency alone rescinding a sale does not obtain m 
 Pennsylvania, as it does in New York. Id. 
 
 264. Where goods are sold to a married woman upon her individual credit, 
 although the vendors are ignorant of the fact of coverture, there is no 
 liability ex contractu on the part of the husband to pay for them. Ooulding 
 V. Davidson, N. S. iii. 34. 
 
 265. A voluntary sale of chattels, to affect vendor's creditor, must be ac- 
 
958 VENDOR AND VENDEE. 
 
 oompanied by an actual change of possession, and the possession must con- 
 tinue in the purchaser. Barr v. Reitz, N. S. vi. 693. 
 
 266. Receipt by mail, by purchaser, of a bill of goods with terms, &o., 
 •will not take the purchase out of the statute. Pilee v. Wicting, N. S. yii. 608. 
 
 267. Incorrect description of locality of personal property sold does not 
 affect the sale. Rugg v. Sale, N. S. vii. 638. 
 
 268. A vendor who has sold goods and drawn bills upon the purchaser for 
 the price, can rescind the sale and sue for the value of the goods, if he has 
 good cause for doing so, notwithstanding the bills, at the time of commencing 
 the action, are out of his possession, so that he cannot then surrender them. 
 If he produces the papers at the trial, and then offers to surrender it or can- 
 cel the acceptances, that is sufficient. Fraschiens v. Henrique, N, S. i. 632. 
 
 269. As to right of vendee, to purchase a security at a greater discount 
 than six per cent. Gaul v. Willis, 0. S. iv. 561. 
 
 270. A creditor who orders goods from his debtor, which the latter owns 
 and has on hand to sell, is not bound to .accept a draft in favor of a third 
 party, for the price of the goods, and may set off against the price the ven- 
 dor's indebtedness, on the ground of mutual dealings. The Bank of Mobile v. 
 Relf, 0. S. i. 442. 
 
 271. Where a vendor sold sufficient goods "now on my premises," to pay a 
 sum of money advanced by plaintiff, and delivered a specific mass more than 
 enough to pay the amount, but they were not removed, and the premises were 
 subsequently sold with notice of the facts and subject to plaintiffs claim, the 
 legal title and ownership of the goods passed to the plaintiff. The transaction 
 was an executed sale in the nature of a mortgage, and the purchaser with 
 notice had no title as against the plaintiff, and could convey none to a third 
 party even without notice, and the original transfer was valid without filing 
 as a chattel-mortgage. Wooster et al: v. Sherwood, N. S. iii. 57. 
 
 272. A contract upon which an action would lie by the personal represen- 
 tatives of a party thereto, in case of his death, for the enforcement of his 
 rights and remedies under the same is legally assignable, so held in respect 
 to a written agreement by the defendant to deliver to the plaintiff's assignor 
 all the potatoes the defendant should raise the following season, delivered on 
 a boat at a specified price per barrel. Sears v. Conover, N. S. i. 241. 
 
 273. If the purchaser of goods, which by the terms of the contract of sale 
 are to be delivered and paid for at a specilied time, does not tender the price 
 and take the goods within the time agreed upon, the vendor may request him 
 to pay for and take the goods, and in case of his refusal, may abandon and 
 rescind the contract, and dispose of the goods as if no contract had been 
 made ; or he may, on due notice to the purchaser, re-sell the goods as the 
 property of the latter, and recover of him the sum lost by the re-sale, to- 
 gether with the expense of keeping the goods. McBachron v. Randies, N. S. i. 
 241. 
 
 274. Where suit was brought for a bill of goods sold more than six years 
 before, and the Statute of Limitations was pleaded ; evidence of the practice 
 and custom of the trade to sell goods upon a system of credits was held in- 
 admissible for the purpose of proving that the price was not to be paid when 
 the goods were sold, but on a certain date thereafter, so as to avoid the bar 
 of the statute by showing that the bill was not due until within six years • 
 and it was error in the court below to receive the evidence and refer it to the 
 jury as testimony from which they might infer a contract different in terms 
 froin that exhibited in the account. Sursh v. North, N. S. i, 695. 
 
 275. In an action by the vendor of stocks against a vendee refusing to per- 
 torm his contract to purchase, it was a defence that the vendor did not own nor 
 was authorized to sell sufficient stock to fulfil the contract in suit and his previ- 
 ous outstanding contracts. But evidence falling short of this, as merely showing 
 contracts sufficient to absorb all the stock which the plaintiff had proved 
 himself to own, is inadmissible. Watkins v. Abrahams, N. S. i. 439. 
 
 276. A promise is to be interpreted in that sense in which the promisor 
 knew that the promisee understood it. Barlow v. Scott, N. S. i. 440. 
 
 XVIII. Of Stoppage in Transitu. 
 
 ^^'^; ^^J°}^^^ °^ vendor and right to stoppage in transitu. See Oabeen v. 
 Vampbell, 0. S. vi. 561. 
 
 278. It is the settled rule in the law of stoppage in transitu, that movable 
 
VENDOR AND VENDEE. 959 
 
 property sold, but not paid for, may, on the discovery of (lie vendee's insol- 
 vency, before it has come into liis possession, be seized by tlie vendor. Camp- 
 bell et al. V. Cabeen et al., Oarnisfiees, 0. S. v. 683. 
 
 279. Stoppage of goods in transitu does not rescind the contract, and ven- 
 dors are entitled to pro rata distribution out of the insolvent estate. Patten's 
 Appeal, N. S. iii. 573. 
 
 280. A contract for sale of goods is not taken out of the statute of frauds 
 by payment of part of the purchase-money, unless at the time of the sale. 
 BisseU V. Balcom, N. S. iii. 253. 
 
 281. Where a portion of goods sold have been returned and reaocepted at 
 a reduced price, the original sale is not thereby avoided so as to discharge a 
 guarantor. Rice v. Filene, N. S. iii. 249. 
 
 282. It is a well settled rule in the law of sales of personal property that 
 when anything remains to be done as between buyer and seller, there is no 
 delivery so as to cut off the right of stoppage in transitu. It is not necessary 
 that the act remaining to be done should determine the quantity or the qual- 
 ity of the goods sold, but it may be any act whatsoever, within the contem- 
 plation of the parties to the contract. Gill v. Pavenstedt, N. S. vii. 672. 
 
 283. A. purchased goods, warehoused in a bonded warehouse, from the im- 
 porter, B., in whose name they were entered. The goods were buught on a 
 credit at a specified price, and the duties were to be paid by A., as a part of 
 the price. He had withdrawn, by permission of B., parcels of the goods at 
 different times, paying the duties on such parcels. Before the credit expired, 
 B. gave to A. an order on the bonded warehouseman to transfer the residue 
 of the goods to A.'s name, which was done accordingly. As between the par- 
 ties and the government, the goods still remained in B.'s name. They cuuld 
 only be withdrawn under the regulations of the treasury department, by a 
 "withdrawal entry," signed by B., or by some one authorized by him in 
 writing. While the goods were in this condition, the purchaser, A., became 
 insolvent. He demanded that B. should sign, the necessary withdrawal entry, 
 which the latter refused to do, except upon full payment of the price. Held, 
 that an act remained to be done, as between buyer and seller, of such a nature 
 that there was no delivery, either actual or constructive, and that B. had a 
 right of detention of the goods for the unpaid purchase-money. Held, further, 
 that an action in equity would not lie to compel B. to sign the requisite with- 
 drawal entry, since there was no trust created by the transaction, in the ab- 
 sence of payment, or its equivalent. Id. 
 
 284. Statute of Vt. having taken away right of action for recovery or pos- 
 session of intoxicating liquors sold contrary to law, right of stoppage in. 
 transitu cannot be enforced by suit. Howe v, Stewart, N. S. vii. 638. 
 
 28-5. Receipt of goods by insolvent, with design not to pay for them, will 
 avoid the sale, though he had no such design when he ordered them. Pihe 
 V. Wieting, N. S. vii. £74. 
 
 286. Party not the real owner of goods can only sell so as to pass title in 
 exceptional cases, where he has possession and the indicia of ownership. 
 Spaulding v. Brewster, N. S. vii. 640. 
 
 287. Eight of stoppage in transitu is not lost to the vendor of chattels on 
 the insolvency of the vendee, where the chattels are sold by such vendee to 
 another before they arrive, though such other party thought they had, and 
 was ignorant of the original vendor having any interest. Pattison v. Oulton, 
 N. S. X. 748. 
 
 XIX. Of Warranty and Fbaub in Saib of Chattels. 
 
 288. What is required to avoid a purchase of goods by reason of fraud, 
 and prevent change of ownership, so as to subject the same to claim of the 
 vendor. Stoutenburgh v. Konkle, N. S. vi. 575. 
 
 289. What was held a sufficient sale and delivery within the statute of 
 frauds. Dixon v. Buck, N. S. iv. 122. 
 
 290. Fraudulent conduct of crier at public sale. Broikerline v. Swires, «. 
 
 291. One induced to purchase part of a vessel on a fraudulent representa- 
 tion of the cost price is entitled to recover the over-payment. Pendergast v. 
 Reed, N. S. viii. 695. 
 
 292. Payment in counterfeit money does not divest owner s title, except as 
 against subsequent bon& fide purchaser for value. Green v. Humphrey, N. S. 
 V. 883. 
 
960 VENDOR AND VENDEE. 
 
 293. Good faith, of vendee for the jury. Green v. Bumphrey, N. S. T. 383. 
 
 294. Purchaser not bound to set up breach of warranty in set-off to prioe 
 of goods. May have action against vendor therefor. Barih v. Burt, N. S. 
 T. 256. 
 
 295. The rules of law deduced from the maxim caveat emptor have refer- 
 ence generally, and. more particularly, to the condition of personal property 
 sold by one parly to another. Clark \. Rankin, 'S. S.yi.Z&S. 
 
 296. The silence of a vendor as to a defect in his property, which a buyer 
 does not know, is a moral, but not a legal, fraud. Mowell y.-BiddLecom, N. S. 
 xi. 724. ' , 
 
 297. No title passes when a sale is procured by fraud. Bernard et al. v. 
 Campbell, N. S. xiii. 263. 
 
 298. The design not to pay for goods is such a fraud as will avoid the sale. 
 Id. 
 
 299. The rule is that the owner of goods obtained by fraud may follow and 
 reclaim them from any one not a bond fide purchaser. Id. 
 
 800. Where a vendor brings a suit against a vendee, who has paid by a 
 mortgage on real estate, asserting " that it was good," the burden of proof 
 is on the vendor to show that there was a prior encumbrance, which made 
 the title bad. Bristol tr. Braidwood, N. S. xiii. 528. 
 
 301. The rule of caveat emptor applies in such a case. Id. 
 
 302. In an action for the breach of a warranty of a horse, which con- 
 sisted of an alleged spavin, testimony of witnesses, who had seen the horse 
 about the time of the sale, in the defendant's possession, that the horse was 
 not spavined, and did not go lame, is admissible on the part of the defendant. 
 Weaver v. Kruntzman, 0. S. i. 443. 
 
 303. The deiinition in the Second Revised Statutes, p. 702, sect. 30, of the 
 term "felony," when used in a statute, has not so changed the common law 
 as to prevent a purchaser in good faith and for value, obtaining title to goods 
 which the original vendee procured by false pretences. Fassett v. Smith, N. 
 S. i. 180. The case of Andrew v. Dieterich (14 Wend. 36) in this respect over- 
 ruled. 
 
 304. Where a party desirous of purchasing a lot of " lard grease," inspects 
 it himself, and then makes the purchase and gets a bill of parcels, in which 
 the article is called " lard grease," there is no warranty that the article 
 corresponds in species with the name given to it on the bill. Carson v. Baillie, 
 0. S. i. 125. 
 
 305. A representatiop made by a vendor may relieve the purchaser from 
 that care and caution he would otherwise be bound to employ, but there should 
 be the clearest proof of his reliance on such representation. Vandewalker v. 
 Osmer, N. S. xiii. 200. 
 
 306. The purchaser having the property before him, cannot shut his eyes 
 and ears to defects plainly discoverable, and pretend that he relied on the 
 representation. Id. 
 
 307. As in cases of warranty, so in representations, obvious defects are not 
 cured, because the law requires the purchaser to examine the property, if 
 present, with such care and skill as a prudent man would. Id, 
 
 308. Purchasing goods with an intention not to 'pay for them is a fraud 
 which will render the sale void and entitle the vendor to reclaim the goods 
 from the vendee or any subsequent purchaser with notice or without consid- 
 eration, although there were no fraudulent misrepresentations or false pre- 
 tences. Dow V. Sanborn, N. S. i. 506. 
 
 309. If the vendee says " there is no encumbrance " when he knows there 
 is, he is liable for a fraudulent representation, and the vendor may rescind 
 and claim his property. Bristol v. Braidwood, N. S. xiii. 528. 
 
 310. If he says " none that he knew of," the vendor is put upon inquiry 
 for himself, and the rule of caveat emptor applies. Id. 
 
 311. Sale — fraud — purchase with design not to pay. Henneguin et al. y. 
 Naylor, N. S. ii. 58. 
 
 312. Rescission of sale — vendee becoming insolvent placed goods in ware- 
 house subject to vendor's order, and notified him — vendor's assent subse- 
 quently related back to that time and made his title good against intermediate 
 attaching creditor. Sturtevant v. Orser et al., N. S. ii. 318. 
 
 313. Misrepresentations in conditions of sale. Allen v. Robhins N S 
 ii. 442. ' 
 
VENDOR AND VENDEE. 961 
 
 314. If purchaser expressly relies on assertiou of seller as to value, he may 
 have action for fraudulent representations, whether the contract is in writing 
 or not. Heard v. McCoTniick, N. S. ii. 695. 
 
 315. Bill of sale will not exclude parol evidence. Id. 
 
 316. In action for deceit in sale of property, other representations made by 
 defendant at the same time as those set forth in the declaration are admissible 
 in evidence. Pedriek v. Porter, N. S. ii. 767. 
 
 317. But an action will not lie for false representations as to future profits 
 that may be made. Id. 
 
 318. As to implied warranty in selling a horse that he was free from 
 glanders. Hill v. Balls, 0. S. vi. 16-2. 
 
 319. The doctrine of fraud in law as applicable to change of title in personal 
 property without change of possession is merely a kind of rule of evidence 
 prescribing what facts proved shall be held to conclusively show the existence 
 of fraud, and thus creating a Isind of estoppel in pais. Daniels v. Nelson, N. S. 
 viii. 149. 
 
 320. The rule rests upon grounds of policy only, and its application has been 
 limited to creditors and hondi, fide purchasers. It does not apply in favor of 
 a state or county levying a tax. Id. 
 
 321. Therefore, a chattel belonging to A. cannot be levied upon for a tax due 
 by B., although it formerly belonged to B. and still remains in his posses- 
 sion. Id. 
 
 322. Mere omission of vendor to give information of defects is not fraud. 
 McDonald v. Christie, N. S. iv. 191. 
 
 323. Where purchaser of a chattel in nn action for the pi-ice sets up fraud 
 of vendor but withdraws the defence, he may afterwards have his action for 
 fraud. Id. 
 
 324. Transfer of goods in fraud of creditor : knowledge by vendee where 
 he is party to the agreement. Walsh v. Kelly, N. S. iv. 123. 
 
 325. In case of warranty or fraud in the sale of chattels, the property may 
 be retained by the vendee and the sale aiBrmed, yet his right to sue upon the 
 warranty, or for the deceit, will not thereby be affected. Gilson v. Bingham, 
 N. S. xi. 73. 
 
 326. If the vendee of an article manufactured for him under a special exe- 
 cutory contract, there being no warranty or fraud, accept it, though defec- 
 tive, he becomes thereby bound to pay the contract price ; but if he reject it 
 and give notice of the non-acceptance, he can bring hia action for the non- 
 performance of the contract; but he cannot accept«it and bring such action; 
 nor can he accept it and impose conditions and sue the vendor for non-com- 
 pliance with the conditions imposed. Id. 
 
 327. A judgment recovered by the vendor for the bal.ance of the price due 
 for an article manufactured to order under a special contract, is a bar to a' 
 suit brought by the vendee for a breach of the contract. Id. 
 
 328. But if by acts or words the vendor leads the buyer astray, in- 
 ducing him to suppose he buys with warranty, or preventing examination 
 or inquiry, it is a fraud the law will take notice of. Everett v. Parke. N. S. 
 li. 724. 
 
 329. In sales of personal property, where the vendor at the time has pos- 
 session, a warranty of the title is implied. Burt v. Dewey, N. S. ix. 62. 
 
 330. In an action by the vendor for the price of a chattel, sold on condi- 
 tion that the purchaser was to return it if he did not like it, where the chat- 
 tel was retained an unreasonable time, it was held, there could be no recovery 
 if the vendor had subsequently dispensed with the return. Low v. Pardee, 
 N. S. ix. 260. 
 
 331. The purchaser of a growing crop is not only entitled to a reasonable 
 time after the crop matures to gather it, but to a reasonable time after notice 
 given by the vendor. Oyden v. Lucas, N. S. ix. 391, 
 
 332. After notice to the vendor that articles warranted are inferior in 
 quality, the purchaser may sell and recover from vendor any loss sustained 
 on such sale. Gifford v. Belts, N. S. ix. 391. 
 
 333. The vendor of goods knowingly making fal.se representations as to the 
 quality is not liable, unless the buyer relies upon such representations. Hagee 
 v. Grossman, N. S. ix. 454. 
 
 334. A purchaser cannot be compelled to carry out a contract of sale in 
 
 61 
 
962 VENDOE AND VENDEE. 
 
 writing, which is invalid for want of a slamp, because the contract would 
 have been valid by parol. Davy v. Morgan, N. S. ix. 638. 
 
 335. The title to property, sold to be delivered upon payment of purchase- 
 money, vests in the vendee upon tender of the price. Phillips y. Williams, N. 
 S. ix. 646. 
 
 336. Where the vendor of personal property mak^s fraudulent representa- 
 tions in regard to its value, or is otherwise guilty of fraud in making or per- 
 forming the contract, the vendee has his election of remedies for the injury; 
 he may stand to the bargain even after he has discovered the fraud, and re- 
 cover damages on account of it, or he may rescind the contract and recover 
 back what he has paid. Heastings v. McOee, N. S. x. 838. 
 
 337. If he elects the former remedy and sues in case for the deceit, he is 
 not bound to return or make tender of the property. Id. 
 
 338. The title to property is not changed where the vendee is in possession 
 under a void contract of sale. FulUrtonr. Dalton, N. S. x. 414. 
 
 339. The use of such property by vendee after demaud by vendor, is a 
 conversion. Id. 
 
 340. Where there is a contract to purchase at a future time no title passes. 
 SeiWs Appeal, N. S. x. 414. 
 
 341. Where property is sold with a stipulation for repurch.Tse at same price 
 within a year, the vendor is not bound to take it, if it does not exist in the 
 form it was. Id. 
 
 342. Where goods are sold by sample, and both sample and goods contain 
 defects, there is no implied warranty against the defects. Dickinson v. Gay, 
 N. S. iii. 506. 
 
 343. Where the equitable owner of a thing permits the legal owner to re- 
 tain possession of the documentary evidence of title, and it is sold to a third 
 party, the burden of proof is on the equitable owner to show that the pur- 
 chaser had notice of his rights. Calais Steamboat Co. v. Scudder, N. S. iii. 52. 
 
 344. In New York, the rule of caveat emptor is subject to the exception that 
 a warranty of title in the vendor is implied, where he is in possession at the 
 time of sale. Scranton v. Clark, N. S. iii. 124. 
 
 345. The possession of the vendor is the foundation of the implied war- 
 ranty. Id. 
 
 346. Sale of personal property without disclosure of defective title — waiver 
 of the fraud by purchaser. Sweeiman v. Prince, N. S. iii. 570. 
 
 347. An article sold, is at the risk of the buyer as soon as the contract of 
 sale is perfected. Pfescott v. Loeke, N. S. xii. 262. 
 
 348. The rule that the sale is not perfected until the goods are counted or 
 weighed holds not only when the sale is of a certain quantity to be taken 
 
 ^ from a larger bulk, but where it is of the entire quantity provided it is at so 
 much per pound or number. Id. 
 
 _ 349. Where the purchase of property is with a fraudulent intent, the de- 
 livery will give no title sufficient to protect it from the claim of the vendor, 
 as against an assignee of the vendee, even if mixed with other property of 
 the vendee. Joslin v. Cowee, N. S. x. 751. 
 
 350. Only innocent purchasers who purchase property converted info a dif- 
 ferent species are protected, and not they, if they take title from a wrone- 
 doer. Id. •/ ,/ a 
 
 351. The owner of the original material may still retake it in its improved 
 state. Id. 
 
 352. The vendor has three remedies on failure of purchaser to perform his 
 contract, to hold the properly for him and recover the entire purchase-money, 
 to sell It after notice and recover (he difference, or to retain it as his own and 
 recover the difference between contract price and the market price at time and 
 place of delivery. Dustan v. Mc.indreu; N. S. x. 800. 
 
 353. Where A. in his shop sold goods to B., which afterwards were claimed 
 by a third party as being his property, it was held that there was an implied 
 warranty by A. that he had a good title to the articles sold, and therefore 
 mat Ji. could recover the money which he had paid for them. Hicoltz v. Ban- 
 nister, N. S. iv. 498. 
 
 354. After goods are bought and received the vendee cannot be held to 
 terms not agreed on, by vendor's delivering to him a bill of sale with such 
 terms upon it. Schuchardt v. Aliens, N. S. iv. 54. 
 
VENDOR AND VENDEE— VENUE. 963 
 
 355. One whose property has been sold by another without authority, with 
 his knowledge but without his connivance, may recover its value. Mraqq v. 
 ie. 5. O)., N. S. iv. 76a 
 
 356. Agreement for sale of boat, purchaser to have possession until default 
 in payment of instalments, when contract to be void — purchaser caunot re- 
 cover the payments already made. Haynes v. Hart, N. S. iv. 191. 
 
 357. A purchase with fraudulent design of subjecting goods to executions 
 of friends, affords clear case for relief. Stoutenbergh v. Konkle, N. S. vi. 575. 
 
 358. No title to goods passes when possession is obtained by gross fraud. Id. 
 
 359. Vendor in a cash sale can reclaim the goods upon refusal of vendee tu 
 pay for same, and no title passes. Id. 
 
 360. But if vendor afSrm the contract by attempting to secure the price, he 
 is not entitled to relief against other creditors. Id. 
 
 361. When no property passes between, upon sale of one kind of property 
 and delivery of a wholly different kind. Gardner v. Lane, N. S. vi. 384. 
 
 362. A purchaser takes the risk of quality unless there is fraud or war- 
 ranty. Whitaker y.Eastwick, N. S. xiv. 199. 
 
 363. In a sale of goods there is an implied warranty of title and of the 
 species, but not of quality. Id. 
 
 364. Representation is not warranty. Id. 
 
 365. The relation of seller and buyer is not a confidential one. Id. 
 
 366. A purchaser may recover so much of the consideration paid for the 
 sale of liquor as is illegal under the statute declaring " that all payments for 
 liquor sold in violation of law shall be considered to be witliout considera- 
 tion and against equity." McGuinness y.Bligh, N. S. xiv. 393. 
 
 367. It is for the jury to determine whether, when goods are intrusted to a 
 carrier to be carried to a consignee, it is a delivery to the consignee for him- 
 self or as agent for another.- State of Maine v. Intoxicating Liquors, N. S. xiv. 
 5:28. 
 
 368. The general rule is, that the purchaser is bound to examine and ascer- 
 tain the defects in the thing sold, and unless there is some misrepresentation 
 or artifice to disguise it, or some warranty as to its qualities or character, the 
 vendee is bound by the contract, notwithstanding there may be intrinsic de- 
 fects and vices in it, known to the vendor and unknown to the vendee, mate- 
 rially affecting its value. Clark v. Rankin, N. S. vi. 368. 
 
 869. The maxim of caveat emptor has no application to cases of actual suc- 
 cessful fraud praetiaei by the vendor upon the vendee. Id. 
 
 370. The question whether the vendee was actijally 'deceived is always open. 
 If he was not deceived by the representations or acts of the vendor, though 
 they were false, then he has no cause of action. Id. 
 
 371. The retention of possession by the vendor of chattels, whenever they 
 are capable of delivery, is a fraud in law. McKibbin v. Martin, N. S. x. 406. 
 
 372. Goods obtained on fraudulent representations may be reclaimed by 
 the vendor, even after attachment by creditors of vendee. Meld v. Stearns, 
 N. S. ix. 578. 
 
 373. Vendor liable for misrepresentation or fraud. Renton v. Maryott, N. S. 
 X. 280. 
 
 VENUE. 
 
 1. Venue in cases of quo warranto, to try right to a county office. People 
 V. Cicotte, N. S. vi. 639. 
 
 2. All parts of the state are included within the body of one or another 
 of the several counties into which the state is divided. State v. Wagner, N. S. 
 xiii. 106. . , ^ 
 
 3. The county in which intent to embezzle was formed immaterial. Oravalt 
 V. The State, N. S. xiv. 644. 
 
 4. To a suit on a note, in New Hampshire, where a statute provides "that 
 transitory actions in which both parties are inhabitants of the state, may 
 be brought in the county of which either party is an inhabitant," a plea 
 averring that the endorsement was made for the sole purpose of enabling 
 the endorser to bring suit in the county in which he lived, and that the real 
 owner resided in another county where the defendant did, was held good. 
 Parsons v. Brovm, N. S. xi. 261. 
 
 5. Where a suit is removed from one county to another, the wnue should be 
 laid' in the county where the suit was instituted. County Commissioners v. 
 Gibson, N. S. xii. 264, 
 
964 VENUE— VEEDIOT. 
 
 6. An offence was committed on board an American ship a"'''^'""®^ ,"' 
 the Penarth Roads, in the British channel, three-quarters of a mile tiom the 
 coast of Glamorganshire, at a spot never left dry by the tide, but w'thm a 
 quarter of a mile from the land which is left dry, the venue was held to be 
 properly laid in Glamorganshire. Reg. v. Cknningham, 0. S. vii. 703. 
 
 7. Where the evidence is consistent with the fact of an article having been 
 abstracted from a railway carriage, either in the course of the journey through 
 the county of A., or after its airival at its destination in the county of B., 
 and the prisoner is indicted in A., under the statute of Geo. 4, ch. 64, sect. 
 13, the case must go to the jury, who are to say whether they are satisfied 
 that the larceny was committed in the course of the journey or afterwards. 
 R. V. Pierce, 0. S. i. 375. 
 
 8. The court will order the venue changed, even when laid in the proper 
 county, if it appears that a fair trial cannot be had there. Murray v. The 
 New Jersey Railroad and Transportation Co., 0. S. i. 496. 
 
 9. In order to warrant a change of venue, it must appear that a fair trial 
 cannot be had in the county where it is laid by positive evidence or facts, 
 and not by the mere opinion of witnesses. Id. 
 
 VERBAL DECLARATIONS OF DECEASED PERSONS AS EVIDENCE. 
 Subject discussed. N. S. iii. 641. 
 
 VERDICT. 
 
 1. If jury in trespass qusere clausumfr., find a special verdict that the title is 
 in defendant, he is entitled to a general verdict. Southampton v. Fowler, N. S. 
 xiv. 395. 
 
 2. The declaration of the foreman in the presence of the jury, as to what 
 they intended to include in the verdict, may be used to correct an informal 
 verdict. Id. 400. 
 
 3. Setting aside of, see .Turob. 
 
 4. Jury has right in all cases to find special verdict. Commonwealth v. Chat- 
 hams, N. S. V. 377. 
 
 5. Verdict will be set aside, if jury have copy of General Statutes in jury- 
 room without knowledge of the partiea Merrill v. Navy, N. S. v. 573, 
 
 6. New trial for after-discovered evidence. Ordway v. Saynes, N. S. vii. 316. 
 
 7. Error occurring after verdict does not affect verdict. See Jewel v. The 
 Com., 0. S. ii. 183. 
 
 8. Verdict does not bear interest prior to entry of judgment. Kelsey v. 
 Murphy, 6 Casey (Pa.) 340, commented on, 0. S. vii. 189. 
 
 9. Where two suits are consolidated into one, the jury may render one ver- 
 dict, and a failure to make an objection in the lower court will be deemed a 
 waiver even if there was an objection. Miller v. MeManis, N. S. xii. 328. 
 
 10. When the special finding of facta is inconsistent with the general ver- 
 dict, the former controls, and judgment may be rendered accordingly. Nich- 
 ols V. Weaver, N. S. x. 414. 
 
 11. Excessive damages are a ground for setting aside a verdict. Belknap v. 
 Boston ^ Maine R. R., N. S. xi. 55. 
 
 12. The verdict of a jury should not be interfered with if there was no 
 error of law on the part of the court. McKinley v. Lamb, N. S. xii. 597. 
 
 13. An acquittal of grand larceny, resulting from proceedings on the first 
 trial, being final, takes away any legal foundation for a verdict on the second 
 trial, finding the defendants guilty of grand larceny. Such a verdict is a 
 nullity. Bell v. The State, N. S. xiii. 752. 
 
 14. A sealed special verdict so expressed as to be ambiguous may be re- 
 formed and moulded by the court in presence of the jui-y, without sending 
 the jury out to reconsider it. Haycock v. Greup, N. S. vii. 529. 
 
 15. If not decisive of the real issue, will be set aside. Burwell v. Greathead, 
 N. S. vii. 380. 
 
 16. Jury have no power to award costs, but this part of their verdict may 
 be treated as surplusage. Tucker v. Cochran, N. S. vii. 254. 
 
 17. Verdict which does not find the issue raised in the pleadings, but en- 
 ables the court to do so, will be moulded into proper form. Id, 
 
 18. Where the verdict is ambiguous, the court may send out the jury for 
 further deliberation. Evans v. Foss, N. S. xi. 272. 
 
 19. A sealed verdict, without the direction of the court or the consent of 
 the parties, will not be disturbed unless some fraud was practised. Id. 
 
VERDICT— VESSEL. 965 
 
 20. Irregular mode bf fixing amount. Boynton v. Trumbull, N. S. iv. 512. 
 
 21. What defects are cured by, in criminal law. Jewell \. The Com., 0. S. 
 ii. 183. See Criminal Law. 
 
 VESSEL. See Shipping, Admiralty. 
 
 _ 1. It is settled there can be no lien by the general maritime law for mate- 
 rials and supplies furnished a vessel in her home port, mil <S- Conn v The 
 Golden Gate, 0. S. v. 142. 
 
 2. The United States Admiralty Court has no jurisdiction of a vessel whilst 
 she is in the hands of the sheriff by virtue of a legal process. Taylor v Car- 
 ryl, O. S. vi. 646. ^ " 
 
 3. It is a conceded proposition that, under the general maritime law, a lien 
 arises or is implied for the benefit of the material-men, unless the ship be in 
 her home port, or credit be given to the master or owner. Harris v. The 
 Schooner Kensington, 0. S. viii. 144. 
 
 4. Vessels transporting goods are carriers in such sense that the' owners 
 may maintain action for cargo lost by collision. The Commander-in-Chief. N. 
 S. iii. 693. 
 
 5. Light-boat Is a vessel within the statute. Briffffs v. A Light-Boat, N. S. 
 iii. 566. 
 
 6. Amortgage of personal property in and abontahotel, "includes things 
 of every name and nature situate and being in and about it," will embrace a 
 sailboat upon the water near it, and used in connection with it. Veazie v. 
 Somerby, N. S. iii. 64. 
 
 7. Act of Congress as to recording mortgages of a vessel does not super- 
 sede state laws for same purpose, ^tna Ins. Co. v. Aldrich, N. S. iii. 570. 
 
 8. The statute of the tfnited States requiring conveyances and mortgages 
 of vessels to be recorded, applies only to such as have been enrolled, regis- 
 tered, or licensed under the laws thereof. Veazie v. Somerby, N. S. iii. 64. 
 
 9. Congress has the exclusive power to provide where the evidence of title 
 of registered and enrolled vessels shall be recorded. Wood v. Stochwell, N. S. 
 viii. 190. 
 
 10. The state legislature has no authority, directly or indirectly, to add to 
 or dispense with the requirements of section 1 of the Act of Congress of July 
 29th, 1850, entitled an "Act to provide for recording the conveyances of ves- 
 sels." Id. 
 
 11. A steam vessel entering a, narrow channel is bound to keep at such 
 speed as to be entirely under control. The Allegheny, N. S. ix. 441. 
 
 12. In crowded waters steam vessels are to be managed with extreme cau- 
 tion. The Johnson, N. S. ix. 441. 
 
 13. Where a vessel is libelled and sold on a bottomry bond, the fund in 
 court is not subject, as against the bondholder, to any claim for a general 
 average loss subsequent to the date of the bond. Oologaardt v. Brig Anna, N. S. 
 ix. 475. 
 
 14. It is the duty of a vessel undertaking to tow others to see that the tow 
 is properly made up. The Quickstep, N. S. ix. 508. 
 
 15. The assured cannot claim indemnity for a total loss without abandoning 
 the vessel to the underwriter. Globe Ins. Co. v. Sherlock, N. S. xiv. 584. ' 
 
 16. State statutes authorizing actions in rem. against vessels for causes cog- 
 nizable in admiralty are statutes conferring admiralty jurisdiction, and are 
 therefore unconstitutional. Jackson v. Steamer Kinnie, N. S. viii. 470. 
 
 17. The bond, fide purchaser, by a neutral, of a vessel of a belligerent, even 
 though the same is dismantled, will not protect it from recapture by the other 
 belligerent. The Georgia, N. S. viii. 250. 
 
 18. One induced to purchase part of a vessel on the fraudulent represen- 
 tation of the cost price is entitled to recover the over payment. Pendergast 
 T. Reed, N. S. viii. 695. 
 
 19. If a steam vessel having another on her starboard does not keep out of 
 the way, she must show sufficient cause to justify such departure. The Cor- 
 iica, N. S. ix. 507. 
 
 20. The stranding of a vessel voluntary. The Star of Rope, N. S. ix. 455. 
 
 21. A vessel attempting to save a derelict will not be responsible for the 
 tatter's loss. The Laura, N. S. xii. 186. 
 
 22. A material-man furnishing supplies to a domestic vessel in a home port 
 has no lien by the general maritime law. Steamship Circassian, N. S. xii. 291. 
 
566 VESSEL— VOTER. 
 
 23. Ship carpenters have a lien for repairs made to a domestic vessel, "'h"^ 
 may be enforced by a proceeding in rem. In re Kirkland, Chase ^ Co., JN. b. 
 xii. 300. 
 
 24. Equitable interest in a vessel may be set up against execution-creditor 
 in sheriff's interpleader. Richardson t. Montgomery, N. S. t. 187. 
 
 25. Agreement between owner and master to sail "on shares" does not 
 release vessel from ordinary liability for supplies. Vose -v.Cochoft, N. S. ». oTO. 
 
 26. Lien cannot be enforced in a state court, on a vessel built for and 
 delivered to the United States. Briggsy. lAghtbaat, N. S. vi. 61. 
 
 27. In action against owners for supplies on captain's order, plaintiff must 
 show that they were necessary. Ford v. Crocker, N. S. vi. 719. 
 
 28. The fact that one vessel carries a prohibited light does not absolve 
 another from the observ.ince of the caution and nautical skill required by 
 the exigencies of the case. Greemng v. Schooner Gray Eagle, N. S. vii. 226. 
 
 29. There may be circumstances under which a vessel that is unable to 
 show the proper lights may, nevertheless, continue her voyage at night. Id. 
 
 30. In navigating a river, omission to observe the usage in proper time 
 renders vessel liable for collision. Id. 
 
 31. Vessel cannot have permanent and temporary registry at same time. 
 Chadwick v. Baker, N. S. vii. 192. 
 
 VESTED REMAINDER. See Remainder. 
 
 VIEWERS OF A ROAD. 
 
 Majority may act. Louk y.Woods, 0. S. iii. G35. 
 
 VOLUNTARY ASSIGNMENT. 
 
 1. Subject discussed. O. S. i. 385. 
 
 2. A^mortgage given by one in insolvent circumstances, and known by both 
 parties to be so, is, nevertheless, not within the proviso of the Act of 1849, 
 with regard to voluntary assignments, though the mortgagee receives back 
 at the same time part of the money lent in payment of previous debts. Mc- 
 Curdy and Vandykes Appeal, 0. S. ii. 446. 
 
 VOLUNTARY CONVEYANCE. 
 
 1. Where the question is as to the validity of a voluntary conveyance, by 
 one indebted at the time, records of judgments in another state, upon which 
 creditors were pursuing him here at the time, are admissible. Clark v. De- 
 nigh, 0. S. ii. 509. 
 
 2. How far void. Newman v. Rusham, 0. S. i. 131. See Jbdgmeht Con- 
 fessed. 
 
 3. One sui Juris cannot, as against creditors, settle his property in trust for 
 his own use for life and over to his appointees by will. MacKason's Appeal, 
 N. S. ii. 504. 
 
 VOLUNTARY SERVICES. 
 
 1. Action lies for services rendered in saving property carried away by 
 freshet. Sheldon v. Sherman, N. S. iv. 383. 
 
 2. Relationship of father-in-law and son-in-law not in itself suificient to 
 rebut implied promise for services — what facts will. Amey's Appeal, N. S. 
 V. 121. 
 
 VOLUNTARY SUBSCRIPTION. 
 
 How collected. Comstock v. Howe, N. S. vi. 314. 
 
 VOLUNTARY TRUST. 
 
 Mere declaration of intention to divide property does not amount to decla- 
 ration of trust. Dipple v. Corks, 0. S. vi. 63. 
 
 VOTER. See Constitdtional Law, Election. 
 
 1. A promise by a candidate for oflSce in consideration of receiving votes 
 to give money or other valuable thing, either to an individual or to the public, 
 is within the spirit of the. laws against bribery ; votes obtained thereby are 
 void as against public policy. State v. Purdy, N. S. xiv. 90. 
 
 2. The United States has the power to protect the rights which are given 
 to the citizen by a state to vote when possessing certain qualifications. U. 
 States V. The Judges of Petersburg Election, N. S. xiv. 238. 
 
 3. No citizen of Maine can be deprived of his right to vote, until after the 
 
VOTER— WAGES. 967 
 
 conviction and senlence of a court-martial of tlie U. States. State v. Symonds, 
 N. S. X. 13-5. 
 
 4. All indictment cliarged that defendants unlawfully prevented, &o., from 
 voting at a municipal election in Petersburg, certain legally registered voters 
 qualified according to law. Another indictment charged that defendants re- 
 fused to register certain legally qualified electors of African descent as voters 
 at the said election. On the demurrer it was held, by Bond, Circuit J,, that 
 the indictments were sufficient, and that the motive of hostility to race, &c., 
 might be inferred from the acts charged ; by Hughes, J., contra, that the in- 
 dictments were defective for not charging that the acts were done on account 
 of race, color, or previous condition of servitude, and that they should be 
 quashed. U. S. v. Judges of Petersburg Election, N. S. xiv. 105. 
 
 5. Per HnoHES, J. The 4th section of the Enforcement Act of May 31st, 
 1870, is not founded on the Fifteenth Amendment, and is unconstitutional. Id. 
 
 6. The Federal Courts have no jurisdiction to protect rights which accrue 
 from the citizenship of a state, but only such as accrue from citizenship of 
 the United States. The right to vote belongs to the former class. It is not 
 a natural or inherent right but & privilege conferred oi'withheld by the several 
 states in their own discretion. The only guarantee of the United States in 
 tliis connection is under the Fifteenth Amendment, that no state shall deny 
 or abridge the privilege on account of race, color, or previous condition of 
 servitude. The only case in which the Federal courts can entertain juris- 
 diction of any quesliou upon this right is where a violation of this guar- 
 antee is alleged. Id. 
 
 7. The right of suffrage is not necessarily one of the privileges of citizen- 
 ship. Minor v. Happerseit, N. S. xiv. 522. 
 
 8. Suffrage is not co-extensive with the citizenship of the states. Id. 
 
 9. Stockholders who are not such on the day of election, although they 
 ■were on the day the election should have been held, cannot vote. Johnson 
 et al. V. Jones et al., N. S. xii. 467. 
 
 10. The Fifteenth Amendment confers no right to vote. United States v. 
 Oruikshank, N. S. xiii. 630. 
 
 11. A deserter is not deprived of his right to vote until adjudged a deserter 
 by a court-martial. Huber v. Reily, N. S. vii. 57. 
 
 12. After the polls of an election have ^een once opened between the hours 
 of ten and six o'clock in the morning, they cannot be closed for any purpose 
 until six in the afternoon, without rendering the election illegal and void. 
 State v. Ritt, N. S. vii. 88. 
 
 VOUCHER. 
 
 1. A covenantee vouched to defend against an adverse title, may vouch 
 his grantor to defend in the same suit. Chamberlain v. Preble, N. S. vi. 128. 
 
 2. One duly vouched, but not appearing, to defend title, will be bound by 
 result. Id. 
 
 VOYAGE. 
 
 When a seaman engages in a commercial adventure, the laws of the United 
 States follow him until the voyage is completed, whether in a foreign country 
 or the Union. Roberts v. Skoljield, 0. S. viii. 156. 
 
 WAGER. 
 
 1. The common law allowing actions on wagers not contrary to public 
 policy has never been in force in New Hampshire. Winchester v. Nutter, N. 
 S. xiii. 53. 
 
 2. In New Hampshire all wager contracts are void. Id. 
 
 3. But one unconnected with a criminal offence is no offence against the 
 criminal law. Id. . . 
 
 4. In an action for money paid at request of defendant, it is no answer 
 that the money was paid for defendant's wagering contracts. Knight v. Cam- 
 bers, O. S. iii. 639. 
 
 ■WAGES. ,. . ^. ,, n j; 
 
 1. A master of a boat or vessel has no hen for his wages as such. Dudle}/ 
 
 V. The Superior, 0. S. iii. 622. . 
 
 2. Waiver of exemption of wages from attachment is void. Mrmsione v. 
 Mack, N. S. v. 253. 
 
968 WAGES— WAE. 
 
 3. Exemption of wages from execution in Pennsylvania. Smith v. BrooJes, 
 N. S. V. 122. 
 
 4. Justice of the 'peace has no jurisdiction of attachment execution against 
 wages of labor or salaries. Firmstone v. Mack, N. S. y. 253. 
 
 5. A vessel employed on the lakes, betweeen a port of the United States 
 and a foreign port, having shipped a seaman on a verbal promise of certain 
 wages, and no shipping articles having been signed, the seaman may leave 
 the vessel at any time. The Propeller. Fremont, N. S. x. 340. 
 
 6. A party who furnishes a supper to a large number of men, may recover 
 the price from the ones who ordered it, though the supper was the result of 
 a bet on a squirrel hunt. Winchester v. Nutter, N. S. xiii. 53. 
 
 7. The rule which deprived the seamen of wages if no freight was envned, 
 does not apply to the master of a ship ; and, therefore, where a ship was lost, 
 the administratrix of the captain was entitled to maintain an action for wages 
 for the period of his services before the loss. Hawkins v. Twyzill, 0. S. iv. 563. 
 
 WAGES OF SEAMEN. See Seamen, Maritime Law. 
 
 WAIVER. 
 
 1. The question of waiver is one of intention ; mere occupation of a building 
 by the owner is not a waiver of strict performance. Wells w.Selwood, N. S.xi.3!i9. 
 
 2. The mere fact that an old county, the constitutional territory of which 
 has been invaded by the creation of a new county, has for five years failed to 
 resist the encroachment and insist upon its jurisdiction, is not of itself a 
 waiver of the right to be restored to its constitutional limits. Maury County 
 v. Lewis County, 0. S. i. 382. 
 
 8. Where the preliminary proofs of a loss were received by the insurers 
 without objection, and payment refused on other grounds, any defects in the 
 proofs must be considered as waived. Taylor v. Roger Williams Ins. Co., N. S. 
 xi. 722. 
 
 4. Waiver of demand implies waiver of protest and notice. Jaccard v. 
 Anderson, N. S. vi. 57. 
 
 5. What will be regarded as a waiver of forfeiture of insurance. Jforih 
 Berwick Co. v. Ins. Co., N. S. vi. 187. 
 
 0. Powers of agents to vary risk and waive forfeiture. Id. 
 
 7. Agent may waive conditiojj in policy for cash payment of premium, and 
 give credit. Boehm v. Ins. Co., N. S. vi. 318. 
 
 WALKER'S THEORY OF THE COMMON LAW. 
 Leading article upon. 0. S. i. 677. 
 
 WALLACE, HORACE BINNEY. 
 
 Biographical notice of. 0. S. i. 311. 
 
 WAR. 
 
 1. The intervention of the late war was a sufScient excuse to the holder 
 of a policy of life insurance, for. not paying his premiums as they accrued 
 during the war, the insurer being resident and domiciled upon one side of 
 the military lines, and the insured upon the other. Hancock v. iV. Y. Life 
 Ins. Co., N. S. xiii. 108. 
 
 2. War claims against the United States, subject discussed. N. S. xiii 265 
 337, 401. 
 
 3. The late war between the United States and the Confederate States was 
 n, public war in such sense that all the people of one section were public 
 enemies of the people of the other section. Degiverville v. Dejarnette, N. S. 
 xiii. 318. 
 
 4. An alien enemy, though he may not sue, maybe sued, and his property 
 withm reach of process subjected to execution during the war. Id. 
 
 5. Intercourse between debtor and creditor, who are enemies, is unlawful 
 during war. United States v. Grossmayer, N. S. ix. 516. 
 
 6. A transaction originally unlawful cannot be made lawful by ratification. 
 
 7. The legality of a capture of private property in time of war is not to be 
 presumed, it must be proved. Branner-v. Felkner, N. S. x. 201. 
 
 8. A private soldier cannot make a capture of property in the hands of a 
 citizen in time of war. Id. 
 
WAR— WAE CONTRACT. 969 
 
 9. Title by capture during war, can only be set up by tlie recognized par- 
 ties to the war. Worthy v. Kinaman, N. S, xi. 399. 
 
 10. Judicial proceedings liad in Alabama during the war are not void. 
 Copeland, Adm'r v. Wmston, N. S. xiii. 397. 
 
 11. Military conamissions and their acts, during the late war, were un- 
 constitutional in states that were undisturbed. MiUigan v. //owe?/, N. S. xiii. 122. 
 
 12. The right of a mortgagee under a power in the mortgage to sell the 
 mortgaged premises in case of default, is not impaired or suspended by the 
 war, on account of the voluntary residence of the mortgagor in the hostile 
 section. DegivervHU v. Dejarnette, N. S. xiii. 318. 
 
 13. Commercial intercourse between the Northern and Soiilhern states being 
 prohibited, interest was suspended on debts due by persons in the terri- 
 tory of either belligerent to persons in the territory of the other. Tucker v. 
 Watson, N. S. vi. 2li0. 
 
 1-1. Statute of limitations suspended during a state of war. Jackson Ins. Co. 
 V. Stewart, N. S. vi. 732. 
 
 15. The late conflict between the United States and the states attempting to 
 secede, a civil war. Id, 
 
 16. As regards the state of Tennessee, the war must be taken to have com- 
 menced after the President's proclamation of August 16th, 1861. Id, 
 
 17. No interest allowed for the period covered by the war. Id. 
 
 18. During a war contracts between citizens of the opposing belligerents are 
 completely suspended. Connecticut Ins. Co. v. Hall, N. S. vii. 60fi. 
 
 19. All species of contracts or commercial intercourse, whether direct or 
 indirect, between subjects of different powers at war, are invalid. Billgery v. 
 Branch, N. S. viii. 334. 
 
 20. The late contest between the United States and the Confederate States 
 was a war. Id. 
 
 21. The late rebellion was such a war as suspended the right of a citizen 
 of Mississippi to sue on a policy of insurance in a Connecticut company. 
 Semmes v. Ins. Co., N. S. viii. 673. 
 
 22. Certificates of indebtedness issued by the United States for supplies 
 furnished to carry on the war, are exempt from State taxation. The Banks 
 V. The Mayor, N. S. viii. 447. 
 
 23. The state is not liable for property seized by officers of the Federal 
 army, until a provisional governor has been appointed by the President. 
 Wallace v. Alford, N. S. ix. 637. 
 
 24. The laws of war authorize an occupying conqueror to establish such 
 government as he may deem proper over hostile country in his occupation 
 and control. Hefferman v. Porter, N. S. ix. 41. 
 
 2-5. The late war was 2. public war, and there was no difference in the rights 
 of the parties. Each had all the rights of an independent belligerent. Smith 
 T. Brazelton, N. S. ix. 762. 
 
 26. Acts done by the military authorities of the Confederate States, within 
 the legitimate sphere of the war, do not render the doers liable to private 
 parties whose property may have been injured thereby. Ford v. Surget, N. 
 S. xi. 301. . ^. 
 
 27. Authority conferred on a guardian in New York can give him no right 
 to come into Louisiana and take the minor's property there, which is already 
 in the possession of a legal tutrix. Powers v. Mortee, 0. S. iv. 427. 
 
 28. An attorney at law, guardian of minors, can lawfully charge his wards 
 for professional services, in conducting litigation for their benefit. In the 
 Matter of David Mumma's Account, 0. S. v. 489. 
 
 WAR CONTRACT. , v . ht • 1 
 
 The plaintiffs, in September, 1836, during the war between Mexico and 
 Texa« and before the independence of the latter was acknowledged by the 
 United States, entered into a contract with the defendant, reciting " That the 
 said parties of the first part, being desirous of assisting the said Gen. 1. Jet- 
 ferson Chambers, who is now engaged in raising, arming, and equipping volun- 
 teers for Texas, and who is in want of means therefor, and being extremely 
 desirous to advance the cause of freedom, and the independence of Texas, have 
 agreed to purchase of said Chambers certain lands, and to pay therefor he 
 sum of $12,500, in certain instalments. Chambers covenanted to hold the 
 legal title to the lands in trust for the use of the plaintiff and to convey the 
 same with warranty, under the penalty of $30,000 liquidated damages. On 
 
970 WAR CONTRACT— "WAEEANTY. 
 
 demurrer to a bill to enforce the speoifio execution of this contract, and aver- 
 ring payment of the consideration, it was decided — 1. That contracts oy 
 citizens of the United States to furnish money to carry on a war by ^«''°"^'' 
 subjects against a government with whom we are at peace, will not De e - 
 forced by a court of equity. 2. That this contract was in violation ot tue 
 neutrality laws of the United States, as it might fairly be inferred trom tue 
 recital, that the defendant was then engaged "in raising, arming, and equip- 
 pins volunteers for Texas," in the United States, and therefore TOid. d. mat 
 fhis contract being made at Cincinnati, must, in deciding its validUy, tie 
 judged by the laws of the United States, and not by those of Texas. Jienneit 
 V. Chambers, 0. S. i. 187. 
 
 WAREHOUSE^_^^^_^ on a market garden, used for storing tools manure and 
 seeds, is not a warehouse within the N. H. statute. State v. Wiison, N. S. vu. 
 
 2. Acceptance of a bill of goods of a warehouse in another state, with 
 order on warehouseman, will not take the sale out of the statute. Boardman 
 V. Spooner, N. S. vii. 188. 
 
 WAREHOUSEMAN. ^ , , :^ „„„,„ 
 
 1. Bight of carrier delivering goods to a warehouseman, to reclaim same, 
 when never called for. Samillon v. Nickerson, N. S. vi. 58. 
 
 2. Responsibility of warehousemen and forwarders for the proper custody 
 and storage of goods in their charge. B. Sf 0. R. R. Co. v. Schumacher, N. S. 
 
 ^"3. How far railroad liable for goods transported after landed and placed 
 in company's warehouse and destroyed by tire. Norway Flams Co. v. R. R. 
 Co., 0. S. iii. 59. 
 
 "WAKRANT. 
 
 1. Where title of drawee of city warrant to the money is disputed, mayor 
 cannot be compelled by mandamus to sign the warrant. People v. Booth, N. 
 S. vii. 315. 
 
 2. Warrant of arrest need only recite the accusation, not the evidence. 
 Pratt V. Bogardus, N. S. vii. 378. 
 
 WARRANTY. 
 
 1. Where a manufacturer keeps his wares ready made for sale to customers, 
 he stands in the same relation to a purchaser, as to warranty, as any other 
 merchant selling tlie same article. There is no implied -warranty of quality 
 arising from the mere fact that the seller is also the maker. Sanborn v. Her- 
 ring, N. S. vi. 457. 
 
 2. Where a manufacturer of burglar-proof safes exhibits two safes differ- 
 ing in price, and the customer takes the cheaper one, upon the assurance that 
 it is equally secure as a protection against burglars, which proves to be un- 
 true, the purchaser may recover the diiference between the value of the safe 
 as it was and the value of such a safe as it was represented to be. Id. 
 
 3. But if a safemaker sells a safe with an express warranty that it is bur- 
 glar-proof, or upon representations to that effect fraudulently made to the pur- 
 chaser, with intent that they should form part of the contract, the purchaser 
 may recover the value of the money or goods lost by the breaking and rob- 
 bing of his safe. Id. 
 
 4. Question of warranty in the sale of safes, considered. Note to Sanborn 
 V. Herring, N. S. vi. 464. 
 
 5. Merchandise broker no authority to vparrant goods to be of merchant- 
 able quality. Dodd v. Farlow, N. S. vi'. 127. 
 
 6. Evidence of such usage inadmissible. Id. 
 
 7. Validity of memorandum, with such warranty. Id. 
 
 8. Effect of ordinance abolishing slavery upon covenant warranting slave, 
 80 for life. Phillips v. Evans, N. S. vi. 248. 
 
 9. No particular form of words is necessary to establish a contract of 
 warranty, but it must appear that the party binds himself to make good the 
 quality of the article sold, and that this made a part of the consideration. 
 Adams v. Johnson, 0. S. iii. 638. 
 
 10. Implied by the words of an agreement " to make a good deed," &o. 
 Burwell v. Jackson, 0. S. iii. 279. 
 
WARRANTY. 971 
 
 11. Representations of the soundness of a liovse are made, and the horse 
 ia afterwards sold at auction. Held, not to amount to a warranty. Sopkins 
 V. Tangueray, 0. S. iii. 128. 
 
 12. A covenantee vouched to defend against an adverse title, may vouch 
 his grantor to defend in the same suit. Chamberlain v. Preble, N. S. vi. 128. 
 
 13. One duly vouched, but not appearing, to defend title, will be bound by 
 result. Id. 
 
 11. Implied warranty of seaworthiness in time policy. Hoxie v. Pacific Ins. 
 Co.. N. S. iii. 507. 
 
 15. A. sold notes and mortgage, and verbally guaranteed both notes and 
 security. Warranty not held within the statute. Huntington \. Wellington, 
 N. S. iii. 182. 
 
 16. Where goods are sold by sample, and both sample and goods contain 
 defects, there is no implied warranty against the defects. Dickinson v. Gay, 
 N. S. iii. 506. 
 
 17. In New York, the rule of caveat emptor is subject to the exception that 
 a warranty of the title in the vendor is implied, where he is in possession at 
 the time of sale. Scranton v. Clark, N. S. iii. 124. 
 
 18. The possession of the vendor is tUe foundation of the implied war- 
 ranty. Id, 125. 
 
 19. Authority, without restriction, to an agent to sell, carries with it au- 
 thority to warrant. Schuchardt v. Aliens, N. S. iv. 53. 
 
 20. Where goods are insured for a voyage, there is no implied warranty 
 on the part of the insurers that the goods are seaworthy. Koebel v. Saunders, 
 N. S. iv. 113. 
 
 21. Purchaser of real estate with warranty cannot detain purchase-money, 
 if his knowledge and the state of facts continue the same as they were at the 
 date of purchase. Wilson v. Cochran, N. S. iv. 640. 
 
 22. Cases on implied warranty by vendor of a bill or note. Note to Dumont 
 v. Williamson, N. S. v. 330. 
 
 23. Warranty "free from all liens." Bidwell f. N. Western Ins. Co., N. S. 
 ii. .59. 
 
 24. Where a guaranty of a note is a separate instrument, title to it will 
 pass by delivery with the note, for a good consideration. Gould v. Ellery, N. 
 S. iii. 59. 
 
 25. The child of an heir apparent whose mother dies before her ancestor, 
 where the remainder limited is contingent, will not be estopped by covenants 
 of warranty in her mother's deed. Moore v. Littel, N. S. iii. 144. 
 
 26. The doctrine of estoppel by covenants of warranty discussed. Note 
 to Moore v. Littel, N. S. iii. 149. 
 
 27. Covenants of warranty in a deed of land, do not estop the grantor from 
 availing himself of an estate of homestead therein. Doyle v. Coburn, N. S. 
 
 28. A warranty by the assured that the vessel shall be free from capture, 
 seizure, or detention, includes a capture by a cruiser of the so-called Con- 
 federate States. Dole v. New England Ins. Co., N. S. iii. 315. 
 
 29 An ao-reement to send plaintiffs all the iron lying at a certain place, is 
 not a warranty, and if the iron is not there, an omission to send is no breach. 
 Robinson v. Flint, N. S. x. 342. , , .i. 
 
 30 In case of warranty or fraud in the sale of chattels, the property may 
 be retained by the vendee and the sale affirmed. Gilson v. Bingham, N. S. xi. 
 
 73 
 
 31 In actions on covenant of warranty it is necessary to prove eviction by 
 title paramount, and a narr. which fails to allege this will be bad on demurrer. 
 Crisfield v. Storr, N. S. xii. 55. . . , , - . 
 
 32 Where one having no title to land conveys it with covenant of warranty, 
 and subsequently acquires title, it enures to his grantee. Cross v. Martin, N. 
 
 '3^"\vhether the rule, " that a party pas^sing negotiable paper warrants its 
 genuineness." is applicable to payments made in coin or legal-tender notes. 
 Oudsre? ^tooorfv. CornwaZi, N. S. xiii. 230. . ,. , . ii, > 
 
 34 Where a sale was by sample, and there was an implied warranty that 
 the merchandise should correspond with the apparent qualities of the sample. 
 Allen V. Schuchardt. N. S. i. 13. , i • i, :. ;„ 
 
 35. Where a warranty of a thing has reference to a purpose for which it is 
 
972 WAREANTY. 
 
 to be used, the rule of indemnity on a breach of the warranty must include 
 the damages which naturally follflwed, and might be expected to follow, its 
 violation, when the thing warranted is put to the intended and understood 
 use : provided such damages are in their nature certain, and it is also oertaiu 
 that they proceeded from the breach of warranty. Passenger v. Thorbum, N. 
 S. i. 308. 
 
 36. Representations made by the vendor of a patent fork for elevating 
 grain, &c., " that it was in all respects a good fork, would do good work in 
 hay, grass, &c., and was fit for the use intended," amounted to a warranty. 
 EUdns V. Kenyan et al., N. S, xiii. 783. 
 
 37. If the instrument was of no practical utility for the use intended, the 
 vendee is entitled to rescind the contract of sale. Id. 
 
 38. Where the plaintiff and defendant exchanged horses, there being a 
 claim on the plaintiff's horse in favor of a conditional vendor, and the plain- 
 tiff afterward brought suit for false warranty, the defendant was not allowed 
 to avail himself of such objection to the title as a defence, when he had not 
 been disturbed in possession, and the plaintiff had paid the claim. Clayton 
 V. Scott, N. S. xi. 55. 
 
 39. The purchaser may bring an action at once, for breach of warranty on 
 the sale of goods without returning them. Wells v. Selwood, N. S. xi. 399. 
 
 40. His possession and their value will be considered in estimating the 
 damages. Id. 
 
 41. He is entitled to a reasonable time in which to examine the goods. Id. 
 
 42. Where a covenant against encumbrances is broken in the lifetime of the 
 covenantee, the administrator and not the heir must sue for the damages. 
 Frink V. Bellia, N. S. x. 671. 
 
 43. In action for false, scienter need not be averred or proved. Schuchardt 
 \. Aliens, N. S. iv. 116. 
 
 44. No action lies on warranty of horse paid for in spirituous liquors which 
 the purchaser could not legally sell. Howard v. Harris, N. S. iv. 320. 
 
 45. Bill of sale of "horse, sound and kind," is a warranty of soundness. 
 Brown v. Bigelow, N. S. v. 575. 
 
 46. Purchaser's knowledge of lameness in such case. Id. 
 
 47. Cardinal rule in construction of, is " to read the writing." Deblois v. 
 Earle, N. S. ii. 441. 
 
 48. Assignor of a note and collateral security, with warranty of collection, 
 not liable until failure of assignee to recover on both note and collateral. 
 Barman v. Carhartt, N. S. ii. 127. 
 
 49. Guaranty of collection of a note implies that it is collectable by due 
 course of law. Cady et al. v. Sheldon et al., N. S. ii. 439. 
 
 50. Resort to legal proceedings is not indispensable if it appears that they 
 would be ineffectual. Id. 
 
 51. Where warranty is conditional, it must be strictly followed as to the 
 condition. Smith Y.Borst, N. S. xii. 200. 
 
 52. Representations constituting a warranty, and charged to be false, must 
 have been made during the negotiations for the sale. Shull v. Ostrander, N. 
 S. xii. 264. 
 
 53. A warranty must be made during the treaty' of sale, or at least before 
 the performance of the substantial terms thereof. Id. 
 
 54. Opening a highway is not such an eviction as will entitle a vendee to 
 an action for breach of covenant. Peck et al. v. Jones. N. S. xii. 407. 
 
 55. A defect or encumbrance not known to vendee when he accepts the 
 deed, is a defence to a bond for the purchase-money, though there is a general 
 warranty. Id. 
 
 56. Covenant to warrant and defend against all persons claiming premises, 
 means persons having valid claims. Gleaaon v. Smith, N. S. viii. 632. 
 
 57. Warranty of payee of promissory note that it is not void for usury Buell 
 V. Bissell, 0. S. i. 411. 
 
 58. An indorsement in blank by a third person of a note, negotiable or 
 non-negotiable, implies a warranty that the note when due will be collectable 
 by due diligence. Piddle v. Stevens et al., N. S. v. 651. ' 
 
 59. In action on a note for goods sold with warranty of quality, maker may 
 defend for breach against payee, a third person, though latter was bonS fide 
 holder, and had no knowledge of the warranty. Aldrich v. StockweLl JS S 
 V. ol. ' ' ' 
 
WAREANTY. 973 
 
 60. Measure of damages in actions for breach of warranty on sale of chat- 
 tels. Brown v. Bigelovi, N. S. v. 676. I 
 
 61. Warranty against capture, seizure, or detention, does not include mu- 
 tinous possession by crew, Oreen v. Ins. Co., N. S. v. 188. 
 
 62. Suretyship and guaranty distinguished. Allen v. Hubert, N. S. y. 192. 
 
 63. Purchaser not bound to set up breach of warranty in set-off to price 
 of goods ; may have action against vendor therefor. Barthy. Burt, N. S. v. 266. 
 
 64. Simple representation of value not a warranty. French v. Oriffin, N. 
 S. vii. 703. 
 
 65. Outstanding right of way is breach of warranty. Euss v. Steele, N. S. 
 vii. 703. 
 
 66. In sales of personal property, where the vendor at the time has pos- 
 session, a warranty of the title is implied. Burt v. Dewey, N. S. ix. 62. 
 
 67. The rule of damages in an action for a breach of warraniy of articles 
 which are manufactured under an agreement, but which are not furnished 
 for any particular use, is the difference in value between the articles actually 
 furnished, and such as should have been furnished. Whitmore v. South Bos- 
 ton Iron Co., N. S. i. 177. 
 
 68. A pledgor, by the act of pledging, impliedly engages that he is the 
 owner of the property pledged; and where the ownership of any part of it 
 is not in him, he is liable to the pledgee in damages, if by reason of defective 
 title it is taken from him. Mairs v. Taylor, N. S. i. 759. 
 
 69. There is no implied warranty of seaworthiness in a contract between 
 the owner of a ship and a seaman to serve on board of it for a particular 
 voyage. Therefore, a declaration by '>. seaman against the owner of a ship 
 for so negligently fitting out the ship, that by reason thereof it was unsea- 
 worthy, and plaintiff was unable to sleep in his hammock and obliged to 
 undergo excessive labor, and was thereby injured in his health, not alleging 
 any knowledge of the unseaworthiness, or any personal blame on the part of 
 the defendant, cannot be supported. Couch y. Steel, 0. S. ii. 685. 
 
 70. By sect. 18. of stat. 7 and 8, Vict., ch. 112, every ship navigating 
 between the United Kingdom and any place out of the same, shall keep con- 
 stantly on board a sufficient supply of medicines suitable to accidents and 
 diseases arising on sea voyages, and the owner of the ship shall incur a 
 penalty of £20 for every default. By sect. 62, all penalties shall be recovered 
 either in the superior courts or at the suit of any person by summary pro- 
 ceeding, and not exceeding one moiety shall be paid to the informer, and the 
 residue to the Seamen's Hospital Society. Held, that the penalty was recov- 
 erable for a breach of the public duty created by the statute, and that the 
 common law right to maintain an action in respect of a special damage, 
 resulting from the breach of that duty was not taken away. Id. 
 
 71. In an action for a breach of warranty by the vendee against the yen- 
 dor of goods, who has warranted them to be of a particular denomination, 
 but not according to sample, it is a proper question for the jury whether the 
 amount of adulteration in the goods supplied be such as to alter their dis- 
 tinctive character. Wieler v. Schillizzi, 0. S. iv. 502. 
 
 72. A. undertook to supply B. with certain parcels of linseed which he 
 warranted should be "Calcutta linseed," and supplied him with linseed con- 
 taining 15 per cent, of other seeds. It was proved that " Calcutta linseed, 
 at the time the contract was made, contained usually from 2 to 3 per cent, 
 of other seeds. The jury were asked whether this was such an adulteration 
 or admixture of foreign substances as to alter the distinctive character of tbe 
 article, and prevent it being salable as "Calcutta linseed," and whether this 
 adulteration was such as might reasonably be expected. Held, no misdirec- 
 tion. Id. . . 
 
 73 Where A. sells B. an unsound horse, and there is no express warranty, 
 and no fraud, the unsoundness of the animal amounts to neither want nor 
 failure of consideration, and is no ground of defence against the payment of 
 the price agreed upon, ^'a^'on v. CaH, 0. S. viii. 488. _ . ju * 
 
 74. The rule of the civil law, that a sound price implies a, warranty that 
 the article sold is sound, is not a rule of the common law. Id. , , ^„ 
 
 75 It cannot be generally maintained, that where the buyer has had an 
 opportunity of examining the article, there is any engagement implied in the 
 contr-act of sale that the seller warrants against latent defects, unknown 
 
974 WAEKANTY— WATER-COURSES. 
 
 alike to himself and to the purchaser. Certainly there is no such e?gage- 
 ment in the sale of such an article as a horse. Eagon v. Call, O. S. vui. ibV. 
 
 76. The vendor of an article of merchandise impliedly warrants that he 
 has a title to what he assumes to sell. Hoe et al. Respondents v. Sanborn, Ap- 
 pellant, 0. S. viii. 740. . . 
 
 77. The rule of warranty in the civil law stated, and its application dis- 
 cussed. Id, 
 
 78. Where a vendor, who is a manufacturer, sells an article of his own 
 manufacture for a purpose and a use disclosed to him, he impliedly warrants 
 that such article is free from any latent defects growing out of the process 
 of manufacturing, and that such article is of a fair and merchantable quality, 
 and reasonably tit for the purpose for which it was manufactured by him. Id. 
 
 79. Hence, where A., a vendor of saws, ordered from B., a manufacturer 
 of saws, certain saws adapted to a circular saw-mill, which were manufac- 
 tured by B. and sent to A., and which upon trial by A. were found to be 
 unsound and worthless by reason of softness, and were therefore returned 
 to B.; it was held that B. could not recover in an action on a promissory 
 note given as the consideration for the purchase. Id. 
 
 80. Warranty of title implied upon sale of personalty. Fort v. The JJ. S., 
 0. S. iv. 389. 
 
 81. Warranty of provisions — caveat emptor. Highland \. Sherman, 0. S. v. 
 311. 
 
 82. In sale of house at auction there is no implied warranty. See Hill v. 
 Balls, 0. S. vi. 162. 
 
 WASTE. 
 
 1. Semble, the tendency has been to cease to observe the distinction be- 
 tween trespass and waste, and to interfere in cases of trespass where inter- 
 ference seemed requisite. Lowndes v. Bettle, N. S. iv. 169. 
 
 2. Tenant by curtesy may not commit waste by cutting timber. Forch v. 
 JFhes, N. S. vii. 699. 
 
 3. The opinion of a witness as to waste committed by a tenant, is not ad- 
 missible in evidence. Woodward v. Gates, N. S. viii. 319. 
 
 4. An injunction will be granted to prevent a tenant from committing 
 waste by cutting timber, or an action will lie to recover damages by the 
 remainder-man. McCay y.Wait, N. S. viii. 191. 
 
 WATER-COURSES. 
 
 1. The internal streams of a state, where used for the transportation of 
 lumber and logs, are to be regarded as public highways. Veazie v. Dicinel, 
 N. S. iii. 715. 
 
 2. Riparian proprietor may increase volume of water by drainage, but 
 cannot by an artificial channel drain off water standing on his own land upon 
 that of another. Miller v. Laubach, N. S. iv. 318. 
 
 3. Liability of municipal corporation to private person, by obstruction of 
 the flow of water of a stream from exercise of municipal rights. Wheeler v. 
 aty, N. S. V. 575. 
 
 4. Vendor may reserve an assignable right of taking water from a spring, 
 without being annexed to any particular estate. Goodrich v. Burbank, N. S. 
 vi. 720. 
 
 5. Owner of land adjoining may stop drainage of water from highway on 
 to his land. Franklin v. Msk, N. S. vii. 61. 
 
 6. Public rights upon the Ohio river as a navigable highway, not upon the 
 banks. Bainbridge v. Sherlock, N. S. vii. 720. 
 
 7. The owner of land lying upon both sides of a natural stream of water 
 which is not navigable, may lawfully erect thereon a dam across tlie stream 
 to such a height that, in ordinary stages of the water, it will not throw water 
 back upon the wheels of an ancient mill above, although, in consequence of 
 the erection of the dam, the ice, when it breaks up in the spring, becomes 
 packed together above the dam, and the water is thereby set back so as to 
 flood the wheels to a greater height, and for a longer time, than it' has done 
 before at that season. Smith v. The Agawam Canal Company, N. S. i. 247. 
 
 8. If the owners of a dam on a water-course, by means of their dam ob- 
 struct the natural drainage from tlie land of another, to his actual injury, 
 they are liable to him therefor, although his land is not situated upon the 
 water-course, unless such obstruction was caused by them in the rea'souable 
 
WATEE-COURSES. 975 
 
 use of their own land or privilege. Bassett v. Salisbury ilanufacturing Co., N. 
 S. iii. 22S. 
 
 9. What is a reasonable use is a mixed question of law and fact. Id. 
 
 10. Rights of proprietors in subterranean waters. Note to Bassett v. Salis- 
 bury Oo., N. S. iii. 238. 
 
 11. Twenty years' use of the water of a stream in a particular way, is evi- 
 dence of a right thus to use the water. Burnham v. Kempton, N. S. iii. 380. 
 
 12. The same proof of user which establishes the right, is equally conclu- 
 sive in establishing the limitation of that right. Id. 
 
 13. In action for swelling back water, plaintiff can only recover for dam- 
 ages for six yeiirs prior to the suit, whether the statute of limitations was 
 pleaded or not. Brown v. Bush, N. S. iii. 578. 
 
 14. A natural or artiiicial "stone row," is such a dam as will acquire a 
 right by lapse of time. Id. 
 
 15. Instrumental measurement of back water must yiehl to actual facts. Id. 
 
 16. A right to divert the water of a river, is an incorporeal hereditament, 
 and can pass only by instrument under seal. Veghte v. The Raritan Water 
 Power Co., N. S. viii. 191. 
 
 17. A party will be liable for injury resulting from neglect to keep a ditch 
 in repair, which passes through another's land. Richardson v. Kier, N. S. 
 viii. 192. 
 
 18. A party is bound to use as great care in managing his ditch, to avoid 
 injury to another, as a prudent person would, were the property exposed his 
 own. Campbell v. B. R. ^ A.W. Co., N. S. viii. 503. 
 
 19. The value of a water ditch is its capacity, and the market value of 
 water in the vicinity. Clark v. Willett, N. S. viii. 504. 
 
 20. The owner of land which is being inundated by a stream breaking 
 away from its channel, may legally turn it back to its old channel, but has no 
 right to cause it to flow on the land of another, except in such old channel, 
 Tuthill V. Scott. N. S. xi. 63. 
 
 21. A party securing the right of flowage from adjacent land-owners for 
 purposes of water-power, and then stocking the pond with fish, does not 
 acquire an exclusive right of fishing. Damon v. Fetch, N. S. xi. 272. 
 
 22. Twenty years' maintenance of a dam without a fishway, will not give a 
 prescriptive right to such dam as against the public. State v. Franklm Falls 
 Co., N. S. xi. 272. 
 
 23. Every owner of land has the right to clean out and tube up a natural 
 spring upon his land, even though it should result in an increased flow of 
 water over the land of his neighbor. Waffle v. Porter, N. S. xi. 400. 
 
 24. One who, without legislative authority, interferes with the current of a 
 running stream, is responsible absolutely, without regard to actual negligence, 
 for the damages sustained in consequence of his interposition by those who 
 are entitled to have the water flow in its natural channel. Bellinger v. N. Y. 
 Central R. R., N. S. i. 59. 
 
 25. Where, however, such interference is in pursuance of legislative 
 authority, for the purpose of constructing a work of public utility, the party 
 obstructing the stream is liable only for negligence in the construction. Id. 
 
 2S. Equity will interpose, by mandatory injunction, to compel the restora- 
 tion of running water to its natural channel, when wrongfully diverted, at 
 the suit of the party whose lands include either the whole or a part of such 
 channel. Coming et al. v. Troy Iron and Nail Factory, N. S. ix. 63. 
 
 27. Where a stream during a flood makes a new channel, the owner of the 
 land has a right to build a barrier across such channel and restore it to its 
 old course. Pjcrce v. /finraej/, N. S. x. 479. ■,. , i ■ • i 
 
 28. One wrongfully damming river and raising water, liable in nominal 
 damages, though no actual injury. Amoskeag Co. v. Coodale, N. S. vi. 256. 
 
 29. Right of a corporation erecting dam on its own land, to overflow land 
 
 of another. Id. • ..,.,. ,.1 »■ ■ 
 
 30. An incorporated company to supply a city with water liable to riparian 
 owners for injuries resulting in diverting the water. Stein v. Burden, 0. b. 
 
 31. The diversion of the water from a running stream for twenty years 
 gives a title by prescription. Id. . , ^ * ii a t 
 
 32. The owners of land adjoining a stream have the right to the flovv o_f 
 the water from spring-head. DuUon v. Guardians of Clutton Union, 0. S. v. oB,. 
 
976 WATEE-COUESES— WAY. 
 
 33. The law governing the use of running streams, is inapplicaWe to water 
 percolating under the surface of the ground. Chatfield v. Wilson, 0. S. v. 528. 
 
 34. The owner of land through which a stream of water passes may law- 
 fully build and maintain upon his own land a dam across the stream, for a 
 fish-pond, although he thereby prevents the flowing back of water upon his 
 land from the dam of a mill-owner below, which has not been maintained 
 long enough to give a right by prescription. Wood v. Edes, N. S. i. 317. 
 
 35. The depreciation in the value of plaintiff's premises — the measure of 
 damages in an action for diverting a stream. Maslerbrook v. Erie R. R. Co., 
 N. S. viii. 188. 
 
 36. The owner of land on which there is a pond or reservoir of surface 
 Vfater cannot lawfully discharge it through an artificial channel directly upon 
 the land of another, greatly to his injuiy. Pettigrew v. Evansville et al., N. S. 
 ix. 126. 
 
 37. Owner may improve land, though he may drain or alter course of sur- 
 face water, to another's loss. Gannon v. IJargadon, N. S. v. 384. 
 
 38. The rights of the owner of the surface and the owner of mines do not 
 differ in any way from those of owners of adjacent closes, and the owner of 
 the surface cannot be protected against the loss of water by percolation into 
 the mines. Ballacorkixh ilining Co. ■,. Harrison, N. S. xiii. 692. 
 
 39. Grant of conflicting rights by owner — change of user by grantees — 
 right of riparian proprietors to use. water. See Pratt v. Lamaon, N. S. i. 246. 
 
 40. A person navigating a river cannot land against the will of the ripa- 
 rian owner, and becomes a trespasser if he does. Ensminger v. People, N. S. 
 ix. 128. 
 
 41. If a natural stream of water flows and forms the boundary between 
 thelands of djS'erent proprietors, the fee of each owner includes one-half of 
 the bed of the stream ; and each is entitled to use one-half of the water 
 which flows in the stream, without regard to the position and course of its 
 principal channel current. Pratt v. Lamson, N. S. i. 246. 
 
 42. If a proprietor of land which is bounded upon a natural stream appro- 
 priates to his own use so much of the passing water as he is enabled to con- 
 trol by means of structures erected upon and within the limits of his own es- 
 tate, even if it be the whole of it, he can thereby gain no prescriptive right 
 to appropriate and use more than one-half of the same, so long as the oppo- 
 site proprietor neither uses nor seeks to use, nor makes any provision, nor 
 has any occasion for the use of any part of the stream to which he is entitled. 
 Id. 246, 247. 
 
 WATEE-CR.'iFT LAWS. 
 
 Suit was brought against a vessel by name, and the vessel attached under 
 the water-craft laws of Mississippi, for a debt due plaintiff'. Held, that the 
 court had no jurisdiction, the cause being one of admiralty. Deever v. Steamer 
 Hope, N. S. ix. 683. 
 
 WAY. See Easement, Street. 
 
 1. Grant of in a deed — construction. Whether way left open is such as 
 deed conveys, for the jury. Walker v. JHerce. N. S. v. 767. 
 
 2. Plaintiff', having recovered , for an obstruction to his way, agreed defend- 
 ant might keep it up for $.?0 per annum. This is a license determinable at 
 tiie end of any year. Gilmore ^.Wilson, N. S. vii. 128. 
 
 3 Farm conveyed with right of free and uninterrupted passing over other 
 land of grantor, the way being then used with gates and bars, must so con- 
 tinue. Garland v. Turber, N. S. vii. 256. 
 
 4. Outstanding right of way is breach of warranty. Russv.Steele, N. S. vii 703 
 
 5. Use of an uninolosed alley in a city by adjoining lot-owner, is not notice 
 ot exclusive right thereto. Gordon v. Sizer, N. S. vi. 512. 
 
 6. There cannot be possession of a wiiy necessary in law to constitute no- 
 tice. Ja. 
 
 7. Effect of a recovery in ejectment by owner of the fee upon defendant's 
 rigut to use the way according to his title. Id. 
 
 ard, N Tiii'568^'' "'^"^ ''^ '"^™^ persons in succession. Leonard v. Leon- 
 ?^ ^^?^* <^°^^ °"' "■"se from mere necessity. Tracy v. Aiherion, N. S. iv. 56. 
 rt„., ,^ ""tl 6™°'°?-^ »tli" land may pass appurtenant to a grant, 
 though access otherwise is not impossible. Pettengill v. Porte,; N S iv 118 
 
WAY. 977 
 
 11. Private way opening on public street, with nothing to show its private 
 character, is liable to public travel. Danforth v. Durell, N. S. iv. 320. 
 
 1'2. Right of, by necessity — a right of way cannot arise from mere necessity, 
 independent of any grant or reservation, express or implied, as in the case 
 of a former unity of ownership. Tracy v. Atherton et al., N. S. i. 739. 
 
 13. Bight to erect gates. Stevens Y.Allen, N. S. ii. 55. 
 
 14. Presumption of grant from user. Pierce T. Cloud, N. S. ii. 446. 
 
 15. Where a conveyance contained " a right of passage-way over an adjoin- 
 ing lot," any passage-way which is reasonably suitable for the purpose will 
 be deemed to answer the call in the deed, and any use which was substantially 
 in accordance with the grant will be held to have been under it and not ad- 
 verse. Smith V. Wiggin, N. S. xii. 671. 
 
 16. Fox conveyed a lot of ground with a passage over his "remaining 
 ground," without defining the passage, and subsequently conveyed the vacant 
 part of his land with warranty, opening a passage through his house, which 
 
 ' the vendee of the first lot used twice. Held, that Fox and his heirs were bound 
 by this location. Kraut's Appeal, N. S. xii. 736. 
 
 17. Though the construction of the grant might be that the vacant part was 
 intended for the passage, ttie limits might be defined by subsequent use and 
 acquiescence. Id. 
 
 18. Where a grant is made of a free passage-way over land, and at the end 
 of the lane used as such passage-way there is a gate, thte maintenance of the 
 gate is not per se a wrongful obstruction. Cannery v. Br/>oke, N. S. xiii. 399. 
 
 19. If the gate is not a practical hindrance to the use of the passage, it is 
 not illegal. Id. • 
 
 20. A grant mnst be taken most strongly against the grantor, if there is 
 any doubt. Id. 
 
 21. Judgment in trespass for taking down the gate is no bar to an action 
 for the obstruction. Id. 
 
 22. A town is not responsible in damages, if a horse, being frightened by 
 an accident, breaks away from his driver and escapes from all control, and, 
 afterwards, while running at large, meets with an injury, through a defect 
 in a highway. Davis v. Dudley, N. S. i. 766. 
 
 23. There is a condition between the power of municipal corporations over 
 the carriageways of their streets, and that which they possess over sidewalks. 
 Hart and Wife v. City of Brooklyn, N. S. i. 631. 
 
 24. A city is not liat)le for an injury caused by the combined effect of the 
 unsafe condition of a highway and the unlawful or careless act of a third 
 person. Shepherd v. The Inhabitants of Chelsea, N. S. i. 691. 
 
 25. No action lies to recover damages for the obstruction of a highway 
 against a city, which is bound to be kept in repair, by an individual whose 
 place of business thereby becomes more difiicult to reach, his business in- 
 jured, the delivery of articles which he has sold and the gathering in of his 
 crops more expensive, his houses less desirable for tenants, and his rents di- 
 minished in value, if other persons suffer damages from the same cause, sim- 
 ilar in kind, though less in degree. WUlard v. Qty of Cambridge, N. S. i. 568. 
 
 26. A way constructed and kept in repair by a private corporation, upon 
 its own land, for its own use and convenience, and the use and convenience 
 of tenants occupying its houses upon both sides thereof, opening into a pub- 
 lic street, having a sign "private way" upon the corner, but. left open to 
 public travel for more than twenty years, without interruption, is not thereby 
 dedicated to the public, nor does it become a public way by prescription. 
 DurginandWifeY.aty of LoweU, in. S.i. 605. , .u a . * ic^« 
 
 27 The Act of 1847, to which reference is made, repeals the Act ot 1840, 
 because the legislature reserved the right to repeal that Act, and because the 
 Act of 1847 is directly repugnant to the Act of 1840, as to this grant of the 
 right of way. Union Branch EaUroad v. East Tennessee and Georgia Railroad, 
 
 0. S. ii. 303. , ^ „ ., , ., . , 
 
 28 The Act of 1840 provides that, in the event of its repeal, the appoint- 
 ment of persons, who shall "fix the value" of the work, investments, and 
 improvements of the company, may be made, either by the repealing act, or 
 by the governor and the stockholders. Id. . , „ ■ ^t. t. ^ m 
 
 29 Upon a trial of the question as to the right of way m the East Ten- 
 nessee and Georgia Railroad Company over the route upon lykich th.ey have 
 
 62 
 
978 WAY— WESTBUEY. 
 
 constructed their road in Georgia, as against the claim of the Union Branch 
 Railroad to the same. Held, that the former company talies no legal aid from 
 the resolutions of our legislature, passed in the year 1837, offering lo secure 
 similar privileges to those enjoyed hy the Western and Atlantic Kailroad in 
 our state, to any road in the state of Tennessee seeking to connect therewith, 
 provided that the latter state would grant the privilege of extending that road 
 to the Tennessee river. Union Branch Railroad v. East Tennessee and Georgia 
 Railroad, 0. S. ii. 303. 
 
 30. In the year 1840, the legislature of Georgia incorporated the Cross 
 Plains and Red Clay Railroad, reserving the right to repeal the act of incor- 
 poration. In 1847, an act was passed granting the right of way over the 
 same route to others. In 1849, the legislature, by act, recognized the priv- 
 ileges granted to the said company by the Act of 1840, changed the name to 
 Union Branch Railroad, and repealed the clause in the Act of 1840 reserving 
 the right, to repeal that act. Held, that the Act of 1849 could not aflFect the 
 rights which had been acquired under the Act of 1847, because that act re- 
 pealed the Act of 1840, so far as the right of way was concerned. Id. 
 
 31. AVhere the public acquire a right of way over a race previously dug by 
 the owner of the land, the burden of building and maintaining such a bridge 
 as is necessary for the highway, rests upon the public. PhoenixvUle v. Phoenix 
 Iron Co., N. S. ii. 307. 
 
 32. Grant of a "way " carries an easement only. Aqueduct Co. v. Chandler, 
 N. S. V. 186. 
 
 33. Duty of municipal corporation to open and repair streets, sidewalks, 
 and bridges. Gty of'JoUet v. Verley, N. S. v. 445. 
 
 34. A municipal corporation must so exercise its authority as not to en- 
 danger lives or limbs of inhabitants. Id. 
 
 35. Bound to keep a common way for travel in a safe condition. Burnham 
 V. City, N. S. V. 571. 
 
 36. Right of municipal corporation to lay out a way upon lands of citizens, 
 wholly for access by public, to points of pleasing natural scenery. Higginson 
 V. Nahant, N. S, vi. 187. 
 
 37. If owner of adjoining closes, over one of which a way exists for benefit 
 of the other, conveys them simultaneously to different persons, the right of 
 the way does not pass as an easement unless it be of strict necessity. Warren 
 V. Blake, N. S. vii. 442. 
 
 38. The use of a way for more than twenty years does not, as a matter of 
 law, establish a right by prescription. Burnham v. McQuestion, N. S. ix. 514 
 
 39. A way over adjoining land used to approach a grist mill will not pass 
 as appurtenant on the sale of the mill, if it is otherwise accessible, unless ex- 
 pressly mentioned. Plumpton v. Converse, N. S. ix. 578. 
 
 40. The purchaser of a lot calling to bound on a street not yet opened is 
 entitled to a right of way over it until it reaches some other street Hawlev 
 V. Mayor of Baltimore, N. S. x. 588. " 
 
 41 An alley fenced and owned by the contiguous lot owners is extin- 
 guished. ^Roimsora V. jjfyens, N. S. xi, 196. 
 
 42. Equltj will enjoin a purchaser from obstructing a right of wiv where 
 there is no adequate remedy at law. McCann v. Day, N. sT xii. 190. 
 WEBSTER, DANIEL. 
 
 Biographical notice of. 0. S. i. 59. 
 
 WEIGHT OP EVIDENCE. See New Tkiax. 
 1. Subject discussed. 0. S. i. 129. 
 
 heck„^,^^W i.'" '■^''"''J''.'' "^ all times, to set aside the verdict of a jury 
 because they have erred in weighing evidence; nor will the court feel nt 
 liberty to do th s, where the jury have passed upon a mere q nest" on of fact 
 unless the verdict is so palpably against the evidence "s to show that xltv 
 minds were not open to reason and conviction, or that an improper influ 
 ence^was brought to bear on their deliberations. vtLZ TuomerXl 
 
 3. Verdict against. See Daviea v. Roper, 0. S. iv. 504. 
 WESTBURY, LORD CHANCELLOR OF ENGLAND 
 Biographical sketch of. N. S. iv. 641. 
 
WHAEF— WILL. 979 
 
 WHARF; 
 
 1. A riparian owner having the title to the land between the high- andlow- 
 ■water mark, and the right to the exclusive use thereof, has the right to 
 establish a private wharf thereon, and make reasonable charges for its use 
 by those navigating the river. Ensminger v. People, N. S. ix. 128. 
 
 2. The rights conferred by the wharf act, are also revocable before execu- 
 tion by the landowner. Railroad Co. v. Stevens, N. S. x, 165. 
 
 3. A riparian owner on a navigable stream has a right of free access to the 
 navigable part, and a right to make a wharf or landing for his own use. 
 Yates V, Milwaukee, N. S. x. 207. 
 
 4. The owner of land in Vermont bordering on Lake Champlain has no 
 title below low-water mark except by statute, which gives him the right to 
 build a wharf or dock in front of hia land. Atistin v. Rutland R. R. Co., N. 
 S. xii. 415. 
 
 5. A city having the control and care of a public wharf and receiving toll 
 for the use of it, is answerable for injuries to vessels landing or lying there 
 occasioned by reason of obstructions improperly suffered to lie thereon. 
 Grier v. City of Filtsburgh, 0. S. ii. 189. 
 
 6. Mandamus might lie to compel a borough to provide proper facilities or 
 an injunction may be granted to"prevent taking wharfage until the wharf be 
 properly built. Prescoit v. Borough of Duquesne, N. S. iv. 640. 
 
 7. Liability of owners of piers, in possession of tenants, for negligence. 
 Moody V. Mayor, N. S. v. 60. 
 
 8. A navigator landing at one wharf, with the permission of the wharf- 
 inger, is not justified by any public right in the river, in landing and moor- 
 ing his vessel, as that while landed its side and stern will be carried by the 
 current against the wharf-boat of a continuous wharfinger lower down the 
 river, thereby obstructing access to the lower wharf. Bainbridge v. Sherlock, 
 N. S. vii. 720. 
 
 WHARFINGER. 
 
 Has no power to sell goods deposited on his wharf, for unpaid wharfage. 
 Kusenburg v. Browne, N. S. ii. 503. 
 
 WHITE CITIZEN. 
 
 A person having less than one-fourth of black or African blood, is a white 
 person within the meaning of the Constitution of Michigan, and entitled to 
 vote, if otherwise qualified. The People v. Dean, N. S. v. 721. 
 
 WILD ANIMALS. 
 
 Keeper is bound to exercise such care as will prevent injuries to other 
 persons through such vicious acts as the animals are naturally inclined to 
 commit. Scribner v. Kelly, N. S. ii. 559. 
 
 WILD LANDS. 
 
 Title of purchaser at tax sale. Pierce v. Hall, N. S. iii. 503. 
 
 WILL. See Ademption, Charitable Uses, Estates Tail, Teusts and Trustees. 
 I. Will Generally, and Who mat Devise and to Whom. 
 
 1. Gift by client to attorney, subject discussed. 0. S. vi. 641. 
 
 2. Infant cannot make valid soldier's will. Qoodell v. Pike, N. S. vii. 703. 
 8. Devise to one by name given to another by description. Wagner's Ap- 
 peal, N. S. ii. 634. 
 
 4. Married woman's will under a deed of trust of personalty only, made 
 in another state but in form required in Pennsylvania, passes ground-rents 
 subsequently acquired. Alexander v. Paxson, N. S. iv. 191. 
 
 5. Will of Samuel Richardson. Opinion of Joseph Galloway upon, 0. S. 
 i. 76; of John Dickinson upon, 0; S. i. 79. 
 
 6. The right to make a will is only given by positive law, and is not a nat- 
 ural right. Note to Moultrie v. JIunt, N. S. i. 167. 
 
 7. A person may make an agreement, which will bind him legally to make 
 a particular disposition of his property by will. Johnson v. Hubbell, 0. S. 
 V. 177. 
 
 8. Equity will decree its specific performance. Id. 
 
 9. By what law governed. A will of realty, executed before the adoption 
 of the new code of Alabama, is governed by its provisions, if the testator died 
 
980 WILL. 
 
 since its adoption, but a will of personalty only would be governed by the 
 old law. Hoffman v. Hoffman, 0. S. iv. 252. 
 
 10. Definition of a will. Daiiia v. Davis, Executor, 0. S. iii. 533. 
 
 11. Property devised to wife, her heirs and assigns, free from control of 
 her husband, may be disposed of by her absolutely in fee, by will. Hall v. 
 Waterhouse, N. S. iv. 754. \ 
 
 12. Bequest of a sum "less any legal debt" due to testator's estate, is 
 payable without deduction to a daughter who had signed notes with her 
 husband for money advanced to him by testator. Rogers v. Daniell, N. S. iv. 
 116. 
 
 13. The voluntary residence of a person within the Confederate lines 
 during the rebellion, did not, under the Act of July 17th, 1862, incap.icitate 
 him from making a will; at any rate, not further than as against the United 
 States. Corhett v. JSfutt, N. S. x. 206. 
 
 14. Equity will enforce the specific performance of an agreement to dis- 
 pose of property in a certain way by will, if made upon a suliicient consider- 
 ation, or if a failure would work a fraud. Gupton v. Gupton, N. S. x. 135. 
 
 15. Where, upon a caveat against admitting a testamentary writing to 
 probate, the register issues a precept to the Common Pleas, directing an 
 issue, the facts are to be tried in the -latter court, and the register's court 
 in such case has no jurisdiction. DanieV s Appeal, 0. S. i. 443. 
 
 16. The testator gave to Amasa, his son, " the sum of $90,000, which sum 
 is to be made up of his notes, drafts, &c., which will be found sealed up and 
 among my papers and directed to him, to be delivered to him by the execu- 
 tors in charge of this bequest." There was found among the testator's 
 papers a package sealed and directed in the hand of the testator thus : 
 "For Amasa Mason — notes, drafts, &c., to make up the sum of $90,000 de- 
 vised to him in my will." The package, on being opened, was found to con- 
 tain notes, drafts, &c., against Amasa, for $90,281. Among the papers of 
 the deceased, but not in the package, was a note against Amasa for $33,000 
 and interest, of a date anterior to the will, also a book account of $6,000, 
 mostly prior to the date of the will. A memorandum in the handwriting of 
 the deceased, and his declaration, also a paper signed by Amasa, were offered 
 in evidence to show that the $33,000 note and the $6,000 account were not 
 intended to be included among the notes and drafts to Ise delivered to Amasa 
 by the executors in discharge of the $90,000 bequest. Held, that this evi- 
 dence was inadmissible. Orosby v. Mason, N. S. vi. 13. 
 
 17. HeU, also, that the fact of finding among the papers of the deceased 
 the package answering the description in the will, the superscription on the 
 package, and its contents, were all proper and admissible evidence tor the 
 purpose of identification. Id. 
 
 18. Held, also, that by the terms of the will in connection with this evi- 
 dence, such notes and drafts only as were found in the package were to be 
 delivered to Amasa by the executors in discharge of the bequest. Id. 
 
 19. Provision in will for support of apprentice may be taken as discharge 
 of the obligation. Pelrie v. Voorhees, N. S. vii. 696. 
 
 II. Of the Making and Peovinq op a Will, and herein what Ihterest 
 
 UlSQTJALIFIES WITNESS TO SUSTAIN WiLL. 
 
 20. The proponent of a contested will must produce and examine all the 
 attesting witnesses if in his power to do so. Thornton v. Thornton, N. S. vi. 
 
 21. The English rule required all subscribing witnesses to be examined 
 unless dead insane, absent from the state, or subsequently incompetent Id 
 
 22. Foundations of this rule. When the will should be admitted to cro- 
 l)ate. Id. *^ 
 
 23. A will may be probated without the testimony of the subsoribine wit- 
 nesses m Its favor. The necessary facts may be proved by others. Id 
 
 24. rhe proponent may impeach ^ subscribing witness, whom he was 
 obliged to call, upon matters brought out on cross-examination. Id 
 
 lb Upon what the testimony of a subscribing witness, as to sanity, la 
 founded. How weighed and valued. Id """'ij-i la 
 
 »tf«;!r„°'j-7°' ^"'' '!"' '."T '.° '■"5"''^ '° "'"'••g' fl'^t tl'^ testimony of an 
 
 St^hrSyTttw'r^^!" ""^'^ "'^'"'^^ " ^'-"« p"--p^- 
 
WILL. 981 
 
 27. When a draft of a will may afford "very considerable liglit " upon tes- 
 tator's intention. Is evidence upon questions of capacity and undue influ- 
 ence. Thornton-^. Thornton, N. S, vl. 341. 
 
 28. Effect of legacies made upon the suggestion of another, upon the ques- 
 tion of capacity. Proper manner for the court to charge, upon testamentary 
 capacity. Id. 
 
 29. A party cannot insist that the court shall collate certain conceded facts, 
 isolate them from others and charge distinctly thereupon to infer undue influ- 
 ence. How the court should charge upon this question. Id. 
 
 30. Common law rule for proof of, by subscribing witnesses. Note to 
 Thornton v. Thornton, N. S. vi. 358. 
 
 31. What is not a sufficient attestation. Chase v. Kittredge, N. S. vi. 64. 
 
 32. When codicil to will may be admitted to probate subsequently to pro- 
 bate of will. Waters v. Stickney, N. S. vi. 384. 
 
 33. Although a will may be ineffectual to pass land in another state, be- 
 cause not attested by subscribing witnesses, yet an heir at law to whom a 
 legacy is given from the testator's Pennsylvania estate, the will being valid 
 in that state, will be put to his election, and will not be permitted to claim 
 the gift without giving assent to everything contained in the instrument. 
 Van Dyke v. Van Dyke, N. S. viii. 462. 
 
 34. The following instrument : " I wish five thousand dollars to go to John 
 C. Cole in the event of my dying intestate, and the balance of my property 
 to go to Robert Beatie, to be disposed of by him as his judgment may dic- 
 tate," if properly executed and witnessed, is testamentary in its character, 
 and is a will. .Esta.U of Wood, N. S. viii. 704. 
 
 35. Soldier's Will. — At common law, a will of personal property, written 
 in the testator's own hand without seal, though no witnesses were present at 
 its publication, is good ; and no particular form of expression is material, if 
 only the testator's intention is manifest. Leathers v. Greenaere, N. S. vi. 533, 
 692. 
 
 36. Want of capacity cannot be proved by events subsequent to the making 
 of the will. Clarke v. gain's, N. S. iii. 375. 
 
 37. Attestation by a legatee, of a codicil, did not affect the legacy. Gurney 
 V. Gurney, 0. S. iii. 511. 
 
 38. Witness may sign out of testator's presence and acknowledge his signa- 
 ture afterwards. Vaughan v. Vaughan, N. S. iv. 735. 
 
 39. Rule as to signing in testator's presence, discussed. Id., Note. 
 
 40. Where the law requires the execution to be in presence of three wit- 
 nesses, the acknowledgment by testator and two witnesses of their signatures 
 to a third witness who did not actually see them sign, is not sufficient. Pope 
 V. Pope, N. S. iv. 384. 
 
 41. Part of a codicil actually beneath the signature allowed to stand. In 
 the Goods of Kimpton, N. S. iv. 320. 
 
 42. The attesting witnesses need not be present at the signing of a will, if 
 the testator acknowledges it as his will, and requests them to sign. Halloway 
 V. Galloway, N. S. x. 135. 
 
 43. If any part may take effect will may be proved, though part of it be 
 void. George v. George, N. S. vii. 319. 
 
 44. Legatee under a will immediately preceding that in contest is compe- 
 tent witness against the latter. Titlow v. Tillow, N. S. vii. 319. 
 
 45. Opinions of subscribing witness. Id. 
 
 46. Need not be read to or by the testator. ITess's Appeal, N. S. u. 633. 
 
 47. A mark is a signing of the name within the meaning of the statute. 
 Morris et al. V. Kniffin, if . 8. a. S16. . . „ 
 
 48. Court being satisfied of wilful withholding of facts from it may revoke 
 probate. Goodeil v. Pike, N. S. vii. 703. , .„ ^ , . ■ , , r. 
 
 49 Where two persons agreed to make mutual wills, but by mistake each 
 signed the will of the other, and one died. Held, that he died intestate. 
 Alter's Appeal, 'S.S.x.2i2. ,-, ^ . ^ 
 
 50. There being no will to reform, the legislature could not give a court 
 power to establish it upon proof of the intent of the parties; such an act 
 would be the divesting of a vested estate. .W. 
 
 61. Publication in N. Y. Abbey y. Christy, i!. S.yn.^U. 
 
 52. Execution of, is not work or labor, and may be done on Sunday. Ben- 
 nett V. Brooks, N. S. iv. 768. 
 
082 WILL. 
 
 53 A copy may under certain circumstances be proved as the will of a de- 
 ceased person. Dwrfieyv.Fin-rfwr, N. S. viii. 512. 
 
 54 Where there are reasonable grounds for believing fraud in obtaining a 
 will, 'and DO steps are taken for five years to set it aside, it is gross laches. 
 Mol'den v. Meadows, N. S. xii. 471. „ , „ „ • ii. 
 
 55. Effect of probate in one state, when offer_ed for allowance in another. 
 Leading articles upon the subject. 0. S. ix. 577, 641. 
 
 56. Does it leave the questions of capacity and execution open to contest in 
 the domestic tribunals, Quaret Id. . ,., ^ x, i . : „„ 
 
 57 Fraud in procuring one legacy does not invalidate other legacies given 
 by testator's free will, but otherwise if the fraud or undue influence affects 
 the whole will. Morey's Executors v. Florey, 0. S. in. 55. 
 
 58. Proof of execution, when subscribing ^witnesses do not recollect cir- 
 cumstances thereof. Eliot^. Eliot, 'S.S.i.bl^. 
 
 59. Executor, accepting trust, is competent subscribing witness to will, 
 under statutes of Mass. Wyman v. Symmes, N. S. v. 5(5. _ 
 
 60. A disinherited heir at law is a competent witness in support ol will. 
 Sparhawk v. Sparhawk, N. S. v. 576. . . ,. x. t vii * 
 
 61 The Circuit Courts of the United States have jurisdiction of a bill to 
 enioin the executors of a will, which has been admitted to probate by the 
 county court of a state, from using it to defeat the rights of a citizen ot an- 
 other state, .dmori/ V. ^mory, N. S. xii. 585. _ „ ^ x, ■ 
 
 62 Where a sum is left by will in trust, with a direction that the income 
 and interest shall be applied to the use of a person, such person is entitled to 
 the interest from the date of the testator's death. Cook v. Meeker, N. S. vii. 112. 
 
 63. Execution of will on Sunday not labor within the statute. George v. 
 George, N. S. vii. 319. 
 
 64. While one administrator is in ofSce, the probate judge or court cannot 
 appoint a new one. Matter of the Estate of Hamilton, N. S. viii. 126. 
 
 65. Where on the hearing before the surrogate, there is general evidence 
 of the execution by the husband of a previous will, under which the widow 
 would take the same provision as under the will offered for probate, the valid- 
 ity of the first will is to be assumed in support of the competency of the 
 widow as against the objection of interest. Talbot v. Talbot, N. S. i. 181. 
 
 66. A widow, cited, but who does not appear or contest the probate of her 
 husband's will, is a competent witness for the contestants, as against the ob- 
 jection that she is a party to the proceeding, and no formal order, dismissing 
 her as a party, or otherwise providing for her examination, is necessary. Id. 
 
 67. A testator wrote his will and signed it in the presence of two persons 
 summoned by him for the purpose ; they took the will into an adjoining room 
 to sign their names, the rooms communicated by a door, which was left open. 
 There was no proof that the testator did actually see the witnesses sign their 
 names. Held, that the signature of the witnesses was not made in the pres- 
 ence of the testator. Norton v. Bazett, 0. S. v. 52. 
 
 68. Proof of the regular execution of a testamentary paper establishes a 
 primS, facie case in favor of the party alleging a will. Davis v. Davis" Execu- 
 tor, 0. S. iii. 533. 
 
 69. The competency of a parol testimony, in order to ascertain whether a 
 paper writing purporting to be a last will, considered, and such testimony ad- 
 mitted. Id. 
 
 70. The party propounding the will must show that the document in ques- 
 tion was made as a will, by one capable of making a will, having a knowledge 
 that he was making a will and informed of its contents. Id. 
 
 71. The executor and trustee who takes an interest in a will cannot be a 
 witness to sustain it. Id. 
 
 T2. When a devise or bequest is ambiguously expressed it is always impor- 
 tant to bear in mind the inclination which the law has in favor of the heirs, 
 which with us is a rule of equality and also in favor of a vesting of the estate 
 at the death of the testator, or at the earliest, possible period thereafter, and 
 also in favor of an absolute and against a defeasible estate. Matter of Etter' a 
 ma, 0. S. iii. 42. 
 
 73. It is under the influence of this bias that words of survivorship are 
 generally referred to at death of the testator, if there be nothing indicating a 
 contrary intention. Id. 
 
win,. 983 
 
 74. Tlie provisions of the code of Louisiana which requires for the proof 
 of an olographic will the "testimony of two credible witnesses, who declare 
 that they recognize the testament as entirely written, dated, and signed in 
 the testator's handwriting, as having often seen him write and sign during 
 his lifetime." Art. 1048, is directory merely, and does not where such proof 
 is wanting by reason of accident, as in the case of a lost or destroyed will, 
 exclude secondary evidence of the will. Lea J., dissenting. Oaines' Appeal, 0. 
 S. iv. 364. 
 
 75. Contents of an alleged lost or destroyed olographic will, admitted to 
 probate after the expiration of forty years, the delay being explained upon 
 evidence establishing the former existence and principal contents of such a 
 will, and the probability of its due exception in accordance with the code; 
 though it did not affirmatively appear that the witnesses had ever seen the 
 testator write or sign his name in his lifetime. Lea J., dissenting. Id, 
 
 76. When the decedent failed to declare to the subscribing witnesses that 
 the paper which they were called to attest was his last will and testament, 
 but simply acknowledged his signature and requested them to sign at a par- 
 ticular place pointed out by him. Held, that this was not a valid testamentary 
 declaration. Hunt v. Mootrie, 0. S. iv. 395 ; and see Moultrie v. Hunt, N. S. i. 148. 
 
 77. The knowledge of the character of the instrument gained by the sub- 
 scribing witnesses from looking at the attestation clause, does not constitute 
 a testamentary declaration by the decedent unless It was clearly obtained by 
 his request or direction, or at the least his consent and privity. Id. 
 
 78. If anything is to be taken as substitution for an express declaration, it 
 must be such an act as is clear and unequivocal, and as gives the basis for a 
 necessary inference that the testator coiiveyed, intended to convey, and knew 
 he had conveyed to the minds of the witnesses, that he executed the paper as 
 his last will and testament. Id. 
 
 79. There must be mutuality as to the knowledge of all the parties, testator 
 and witnesses, in respect to the nature of the transaction, and this must be 
 evinced with reasonable definiteness by the facts. Id. 
 
 80. 'The declaration must be made to each of the witnesses at the time of 
 subscribing or acknowledging, and as part of the transaction ; it must be 
 made in the presence of the parties, and must point to the particular instru- 
 ment in process of execution. Id. 
 
 81. Evidence — exemplification under New York statutes. Hill et al. v. 
 Crockford, N. S. ii. 58. 
 
 82. Witness to a will must be competent at the time of attestation. Frinh 
 T. Pond, N. S. V. 704. 
 
 83. The certificate of attestation to a will by a deceased witness is not, it 
 seems, equivalent to his testimony, if he were living, to the contents thereof, 
 but is evidence of an inferior nature. Orser v. Oner, N. S. i. 440. 
 
 84. Upon a caveat to a will, the executor not a party to the proceedings in 
 the capacity of executor, is competent to testify upon his own offer, and in 
 his own behalf, as caveatee. Schull v. Murray, N. S. x. 128. 
 
 85. Under the act of 1867 of Illinois, the devisees under a will who were 
 defendants in a suit are only competent witnesses of facts occurring after the 
 testator's death. Halloway v. Galloway, N. S. x. 136. 
 
 III. Testamentaet Capacity. . , • , j- 
 
 86. Mental unsoundness as affecting testamentary capacity, subject dis- 
 cussed. N. S. ill. 1, 385. 
 
 87. Smile dementia, article upon. N. S. iii. 449. 
 
 88 Though subscribing witnesses to a will may be asked their opinion of 
 the testator's capacity to make a will, at the time of their attesting it, yet in 
 case of a deed they must testify to facts only on the point of the sanity or 
 capacity of the grantor ; they cannot give their opinion as to his competency 
 to contract, for the execution of the deed is all that is attested by them. Dean 
 
 ^' 89. Requisites of testamentary capacity. Van Ouysling v. Van Kuren, N. 
 
 9o! Guardianship not conclusive upon ward's competency to make a will. 
 
 Baboon's Estate, N. S. vi. 720. vi • ♦ i„„.. =„ffi 
 
 91 Gross inequality, apparently unjust or unreasonable, is not alone sufli- 
 cient to invalidate a will. Kevilly. Kevill, N. S. vi. 79. 
 
984 WILL. 
 
 92. But it is entitled to weight as evidence of testamentary incapacity o^ 
 undue influence. Keoill v. Kevill, N. S. Ti. 79. 
 
 93. An insane delusion that the principal legatee is testator's son, avoids 
 the will. Morey's Executors v. Florey, 0. S. iii. 56. 
 
 94. Testator whose memory and mental faculties had become almost wholly 
 obliterated by softening of the brain, cannot be regarded as of testamentary 
 capacity. Holdeny. Meadows, TS. S. ^li. ill. 
 
 95. Neither age nor weakness of intellect are sufficient to incapacitate a 
 person from making a will. Orolius -v. Stark et.al, N. S. xii. 472. 
 
 96. Where the principal legatee, who was born in lawful wedlock, two or 
 three years after the mother's marriage with testator, bears the distinctive 
 marks of a negro, while his mother and the testator were white persons of 
 fair complexion, the testator's belief that the legatee was his son, in a con- 
 test touching the validity of the will, is admissible evidence for the purpose 
 of showing mental delusion on this particular subject. Florey' a Executors y. 
 Florey, 0. S. iii. 56. 
 
 97. Neither age, nor sickness, nor extreme distress, nor debility of body 
 will disqualify a person from making a will, if sufficient intelligence remain, 
 and such person is free from unlawful influence. Higgins v. Carlton, N. S. 
 viii. 265. 
 
 98. Will made by lunatic with lucid intervals, being in dispute, evidence 
 may be given of his instructions to draw a different will shortly before he 
 was found lunatic. Titlow v. Titlow, N. S^ vii. 319. 
 
 99. Proof that testator was of disposing mind and memory, anterior to the 
 time of making will, is not sufficient to establish the will. Molloway v. Gal- 
 loway, N. S. X. 135. 
 
 IV. Undue Influence in Proouking. 
 
 100. In an issue to try the validity of a will, which was contested on the 
 ground of undue influence, want of mental capacity, coercion, and on other 
 grounds, it appeared that, by the alleged will, the testator gave a trifling 
 sum to liis only legitimate child, and then bequeathed the residue of his prop- 
 erty to the children of a woman with whom he was alleged to have been living 
 in adulterous intercourse. There was no direct evidence given or oflFered of 
 want of mental capacity at the time, or of any actual coercion or influence 
 exerted in the testator as respects the testamentary act; but it was proposed 
 to prove the fact of this adulterous intercourse, which was of long continu- 
 ance, and which had obliged his wife and daughter to abandon his bouse, and 
 that the alleged adulteress was a woman of vigorous character, and exerted 
 a despotic influence over his actions generally, in connection with the fact 
 that he was suff'ering from a painful disease, to relieve which he took opiates, 
 as tending to show undue influence generally. Held, that the evidence was 
 admissible for this purpose, on the ground that the relation being an un- 
 lawful one, the influence which sprang from it must also be unlawful. Dean 
 V. Negley, N. S. i. 283. 
 
 101. Semble, by Lowrie, C. J., that this would be a presumption of law. Id. 
 
 102. Where a testator, during his last illness, is undnly induced by fear, 
 favor, or affection, or any other cause, unduly exercised (in such a manner 
 as to take away his free voluntary mind and capacity) to destroy his last will 
 and testament duly executed by him, a copy of the same, upon due proof 
 thereof, will be established. Balton et al. v. Watson, 0. S. ii. 381. 
 
 103. Influence to vitiate an act must amount to coercion equivalent to force 
 and fear. Clarke v. Davis, N. S. iii. 375. 
 
 104. Declarations of deceased are admissible to prove undue influence. 
 Moross V. Oicotte, N. S. iii. 765. 
 
 105. Mere absence from the state of an attesting witness does not authorize 
 proof of the will by proving handwriting. Stow v. Stow, N. S. iii. 375. 
 
 106. In Ne* York, a will, whether it disposes of real or of personal prop- 
 erty, speaks as of the time of the testator's death. McNauqhton et al. v. Me- 
 Naughton, N. S. iii. 502. 
 
 107. What influence in the production of a will may be regarded as undue. 
 Note to Keoill v. Kevill, N. S. vi. 82. 
 
 108. Degree of proof required to es(ablish. Id. 
 
 109. Mother taking real estate by devise from husband becomes stock of 
 new descent. Opdyke's Appeal, N. S. v. 255. 
 
"WILL.- 085 
 
 110. Improper influence. — Husband nnd wife. — General bad treatment or 
 past threats by a husband are no ground for impeaching a will made by his 
 wife in 1852. It must be also shown that the testatrix was coerced, or, at 
 least, influenced, to make the will by the bad treatment received. Ryan v 
 McMahon, 0. S. i. 443. 
 
 111. Undue influence over testator — presumption from unlawful relations 
 of parties. Dean et ux. v. Negley et al., N. S. ii. 252. 
 
 112. An influence in procurmg a will, which may be lawful when exercised 
 by a wife, may be illegitimate and undue if exercised by a woman liTing in 
 unlawful intercourse with testator. Kessinger et al. v. Kessinger et al., N. S. 
 xii. 671. 
 
 113. Will legally made, but destroyed by testator through fraud and undue 
 influence, may be established as still in force. Voorhis v. Voorhis, N. S. vii. fi40. 
 
 V. CONSTKUCTION OF WiLL, AND HEKEIN OF THE ExEOUTOR'S PoWEE OF SaLE AND 
 
 ■WHEN Condition is Void. 
 
 114. Legacy not to be applied in payment of debt, unless will shows such 
 was testator's intention. Parker v. Coburn, N. S. v. 383. 
 
 115. Bequest of perishable property for life, with remainder over. Woods 
 V. Sullivan, 0. S. 1. 379. 
 
 116. Trusts. — Construction of words. — Where one devises all his real 
 estate for life, and all his personal estate absolutely, "having full confidence 
 that his wife will leave the surplus to be divided at decease justly among her 
 children," the words do not of themselves import a trust, nor will they be so 
 construed, without other expressions to control them. McKonkey's Appeal; 
 
 0. S. i. 251. 
 
 117. Devise to one for her sole and separate use during her life, with au- 
 thority, if it becomes necessary, for her comfort, to use the principal, with 
 remainder to her children, gives only a life estate in the devisee. Pillow's Ex, 
 Y. Eye and Wife, 0. S. i. 378. ^ 
 
 118. Devise to wife during lifetime or widowhood. Woods v. Sullivan, 0. S. 
 
 1. 379. 
 
 119. A devise authorizing wife to mortgage, " if she needs," gives full power 
 to mortgage the estate. Edmonson v, Nichol, 0. S. ii. 121. 
 
 120. If the interest of a testator in the subject-matter, which he professes 
 to bequeath as paid-up shares in a banking company, is complete, future calls 
 fall on the legatee, and not on the general personal estate; but when further 
 payments are required to make perfect that interest, the general personal 
 estate is applicable for that purpose. Armstrong v. Burnet, 0. S. iv. 127. 
 
 121. Lapse. — Testator gave his residuary estate to his wife, and, if she 
 should die intestate, then over. She died before testator. The gift over was 
 held to have lapsed. Hughes v. Ellis, 0. S. iii. 699. 
 
 122. Bequest to persons who would be entitled upon death of feme covert, 
 under statute of distribution, husband not entitled. Milne v. Gilbert, 0. S. iii. 
 256. 
 
 123. Construction of the word " unmarried." Holly. Robertson, 0. S. iii. 256. 
 
 124. Devise of freehold and gavelkind estate to any male heir and his heirs 
 in strict tail male — heir male at common law entitled to whole. Thorp v. 
 Owen, 0. S. iii. 256. 
 
 12-5. Devise of land to two persons " during their life, and after their death 
 to their lawful issue," &c., first takers took only a life estate with remainder 
 to their issue as purchasers. Treoille v. Ellis, 0. S. iii. 575. 
 
 126. Testator devises his real estate to his wife for life, remainder to his 
 son J., and bequeaths his personal estate to his eight children. The wife re- 
 nounces the will, and takes her thirds of both the real and personal property. 
 The two-thirds of the real estate devised to the wife for life is to be rented 
 out, and the proceeds applied to satisfy the legatees of the personal estate for 
 the one-third of that fund taken by the wife, and upon their satisfaction, or 
 the death of the wife, whichever event shall first happen, the said two-thirds 
 of the real estate passes at once to the remainder-man. McReynolds v. 
 Countz et al., 0. S. iii. 51. 
 
 127. A slave emancipated by will, on condition of leaving the state within 
 six months, is absolutely free, the condition being void. Forj»ard!s Adm'r v. 
 Thamer, 0. S. iii. 53. 
 
 128. Authority given to executors to sell land and other property to pay 
 
986 WILL. 
 
 debts, legacies, and distribute balance, does not confer a naked power, but 
 rests an interest and a trust, and it is the duty of the executors to take poSr 
 session, and to account for the rents and profits until sold. Mosly's Adjn'r v. 
 Mosly'a Administrators, 0. S. iii. 63. 
 
 129. Residuary legacy — share which lapses by death does not survive. 
 Samlet v. Johnson, 0. S. iv. 252. 
 
 130. Express bequest of life estate converts superadded rights of disposi- 
 tion into mere power. Denson v. Mitchell and Wife, 0. S. iv. 253. 
 
 131. Presumption of life of devisee. Crow v. Bightlinger, 0. S. iv. 443. 
 
 132. Devise to a class. Devise that certain land " shall be equally divided 
 among R.'s children, he and they enjoying the benefits of it while he lives." 
 Held, that all of R.'s children living at his death, and not merely those living 
 at the death of the testator, were entitled. Buskins v. Taie, 0. S. iv. 443. 
 
 133. Where land was devised to a son for life, with the provision, that at 
 his death, without issue living, it " shall revert to my estate, and shall be sold 
 by my executors, and the proceeds thereof be distributed among my surviv- 
 ing heirs herein named, agreeably to the intestate laws of Pennsylvania." 
 Held, that this created a vested remainder in the devisees and legatees living 
 at the death of the testator, subject to be devested on the son's dying, leaving 
 issue, and that the share of one of the. devisees who died before the termina- 
 itou of a precedent estate, passed to her legal representatives. Davis v. 
 Davis, Executor, 0. S. iii. 533. 
 
 134. "Heirs" construed to mean children, from the context. Parrishy. 
 Ferris, 0. S. iii. 101. 
 
 135. Adverbs of time, as when, then, after, from, &c., in a devise of a re- 
 mainder, are to be construed as relating to the time of the enjoyment of the 
 estate, not to that of its vesting in interest. Id. 
 
 13B. Devise of a life estate, and if the first taker "should die without 
 children," then over. Held, under the circumstances, to mean without hav- 
 ing had children. Id. 
 
 137. A testator devised as follows: Secondly, "to my daughter E. the use" 
 of 267 acres of land, "during her natural life, to have full use and control of 
 the same, with the appurtenances to the same belonging, as long as she shall 
 live." Thirdly, he devised to "his daughter E.'s children (if she shall have 
 any heirs), their heirs and assigns forever," the 267 acres of land, " after E. 
 is done using and occupying it, and at E.'s death." Foui thly, if his " daughter 
 E. should die without children," then he devised the 267 acres to his "broth- 
 ers and sisters, their heirs and assigns forever, after the death of E. as 
 aforesaid." E. was unmarried at the testator's death, but married after- 
 wards, she had but one child, which lived only a few hours, and soon died 
 herself, having devised all her estate to her husband. Held, that the limita- 
 tion to E.'s children, and that to the testator's brothers and sisters were 
 alternative contingent remainders in fee, the contingency being the birth of 
 children, and that the first remainder vested in E.'s child at its birth, de- 
 scended at its death upon E., and then passed under her will to her husband. 
 Id. 
 
 138. Devise to "remaining children" after death of tenants for life. 
 Turner v. Withers, N. S. iv. 723. 
 
 139. Construction of the words "remaining" or " surviving," as equiva» 
 lent to "other," discussed. Id. Note. 
 
 140. Devise of land free of a mortgage and subsequent deed by testator to 
 devisees — executor should pay off the mortgage. Bradford -9. Forbes, N. S. 
 iv. 448. 
 
 141. Testator gives an absolute interest, and adds that if donee does not 
 dispose of it by will, it shall go to other persons, this condition is void. 
 Weale v. Oliver, N. S. iv. 320. 
 
 142. Same words must have the same meaning. Harvey v. Harvey, N. S. 
 
 143. Legacy held to be chargeable on land. Church v. Wachter, N. S. iv. 192. 
 
 144. Probate of will giving bequests, "if I should lose my life during this 
 voyage," &c. Damon v. Damon, N. S. iv. 192. 
 
 145. Acceptance of a devise subject to an annuity creates a personal lia- 
 bility for the annuity. Gridley v. Gridley, N. S. ii. 121. 
 
 146. Sale directed by, "so that it be within one year," is valid if made 
 afterwards. IShalUr ^ EUing's Appeal, N. S. ii. 634. 
 
"WILL. 987 
 
 147. A testator, having given to Lis nieces a life-interest in liis residuary 
 estate, directed that, "in case all their children should die either in their 
 lifetimes, or after their decease, under age and without lawful issue," then 
 his trustees should "pay, assign, and transfer" the shares of such nieces 
 equally amongst all his nephews and nieces who should be living at such time 
 or times, and " to the issue of such of them as may be then dead (such issue 
 to be entitled to its parent's share only)." He further directed that such 
 benefit of survivorship should not, as to a part of the fundfe given, operate in 
 the case of one of the nieces, but that her share should be paid in the same 
 manner as he had directed with respect to a legacy to his niece E. G., "in 
 case of her decease without issue, or their all dying under age and without 
 issue " The direction with respect to the legacy to E. G. was expressed in 
 the same terms as those used in the gift to the nieces generally, without ex- 
 press mention of death without issue. M. B., one of the nieces, died unmar- 
 ried, with respect to her share. Held, 
 
 1. That there was sufficient indication of intention that the gift over 
 should take effect. 
 
 2. That " issue " meant children. 
 
 3. That the gift to issue of deceased nephews and nieces was original, 
 not substitutionary. 
 
 4. That, whether original or substitutionary, such issue n%ed not survive 
 the tenant-for-life, in order to entitle them to take. 
 
 6. Nor need they have survived their parents, the gift being original ; 
 aecus, if it had been substitutionary. 
 
 6. The gift to the issue was in joint-tenancy. LanpMer v. Buck, N. S. v. 
 224. 
 
 148. A testator bequeathed £500 upon trust for his daughter for life, and 
 directed that if she should die without issue (which event happened), the fund 
 should be paid to his four sons, share and share alike, but in case any or 
 either of his sons should be then dead, he directed that the share of him or 
 them so being dead should be paid to his or their child or children, share and 
 share alike, but if there should be no child, then to his or their legal personal 
 representatives. Held, that the gift to the sou's children was substitutionary, 
 and, therefore, that such children as did not survive their parents were ex- 
 cluded from the terms of the gift, though it was not necessary that such chil- 
 dren should survive the tenant-for-life. Re Turner, N. S. v. 234. 
 
 149. Held, also, that no exception could be made in the present case to the 
 general rule, that the term "legal personal representatives" must be con- 
 strued as "executors and administrators." Id. 
 
 150. ",Heirs" in a devise, word of limitation, Allen y. Henderson, N. S. v. 
 256. 
 
 151. Words creating an estate tail. Id. 
 
 152. Grant of income passes whole estate. Id. 
 
 153. A power of sale will not be implied in a will because it is necessary or 
 convenient to the execution of the directions in the will. Seeger's Fx'rs v. 
 Seeffer, N. S. x. 280. 
 
 154. Where there are express directions to sell, and no person named, the 
 power is held to be in the executor by implication. Id. 
 
 155. Parol testimony in the construction of wills, subject discussed. N. S. 
 
 X. 353. 
 
 156. A limitation to a widow during her widowhood is valid and effective. 
 Clark V. Tennison, N. S. x. 415. 
 
 157. That no provision is made for the time between the marriage of the 
 widow and her death will not create an intestacy, the next devisees will take, 
 if children. Id. ,,..,, 
 
 158. By way of executory bequest, personal property may be limited over 
 after the determination of a life interest, in like manner and to the same ex- 
 tent as real estate. Williamson v. Hall, N. S. x. 466. 
 
 159. A. by his will directed that his wife should " hold and have the use 
 of all my property, both real and personal, during her natural life, to raise 
 and school my children with, and at her decease an equal division to be made 
 between my children; that is to say, ... my daughters shall have the mov- 
 able property, to be divided between them." Held, 1. That the will created 
 an express trust of the personal as well as real property, for the maintenance 
 
988 WILL. 
 
 and education of the children. 2. That the title to the personal estate was 
 in the widow for life, with remainder to the daughters. Williatnson v. Mall, 
 N. S. X. 466. 
 
 160. Testator by his will authorized his executors at their discretion to sell 
 his real estate, and then directed them " to convert into money all the rest of 
 his estate not already in money or securities, and invest the same securely at 
 interest" for the support of his four children. The will further provided 
 that if the testator's son J. G. married the daughter of A. J. C. before a cer- 
 tain time, such son should false no part or share in his estate, either princi- 
 pal or interest, and any provision made for him is upon this condition. There 
 was no residuary clause in the will. The son married the daughter of A. J. 
 G. before the time mentioned. On bill filed to settle the construction of the 
 will, held, 
 
 1. That as to the proceeds arising from the sale of the real estate, and as 
 to the money and other securities, the testator died intestate, neither being 
 included in the clause directing the executors to invest part of his estate for 
 the benefit of the children, and there being no bequest or devise of any resi- 
 due. 
 
 2. That shares in the capital stock of corporations must be sold by the 
 executors, such shares being neither money nor securities. 
 
 3. That the restraint in regard to marriage was certain as to the individ- 
 ual, and being a legal and valid condition, made void all bequests to the son. 
 
 4. That the son was not entitfed to claim any part of his father's estate, 
 not even that as to which he died intestate. Graydon's Executors v. Graydon 
 et al., N. S. xii. 391. 
 
 161. The rule in Shelly's case must govern in the construction of wills made 
 prior to June 13th, 1820, in -Massachusetts. Quick's Ex. v. Quick, N. S. x. 207. 
 
 162. A devise to such heirs of a tenant for life, " as the law directs " in 
 case of dying intestate, means as the law was at the time of making the will. 
 Id. 
 
 163. Courts are astute in finding exceptions to the rule that a devise of 
 lands without words of limitation confers a life estate only. King y. Acker- 
 man, N. S. iii. 50. 
 
 164. Devise of "goods, chattels, rights and credits, and eflFects," does not 
 pass realty. Brown v. Furman, N. S. iii. 633. 
 
 165. Where a testator divided the residue of his estate between his brother 
 W., the children of his sister H., and the daughter of his brother J., in equal 
 proportions ; it was held, that the legatees were to take " per capita " Lee 
 Executor v. Lee, N. S. iii. 59. ^ ,r ■ > 
 
 166. Where to a devise of land without words of limitation a provision is 
 added that the devisee may do therewith as he pleases, or is directed to pay 
 debts or a sum in gross, he takes a fee. King v. Ackerman, N. S. iii. 50. 
 
 167. A court may look beyond a will to explain an ambiguity as to the per- 
 son or property, but not to enlarge an estate. Id. 
 
 „ ^^.^-jy'^'^'' ™*^ ^^^^ ■'0''* "s creating a perpetuity. Fosdick v. Fosdick, N. 
 o. 111. Izl. 
 
 169. Construction of word " heirs." Porter's Appeal, N S iii 575 
 
 170. Construction of ckuse in will authorizing sale of real estate.' CarUr 
 v. Hunt, N. S. lu. 2o2. 
 
 171. Where a testator in unambiguous language devised a lot in section 32 
 of the town of Joliet, parol evidence is not admissible to show that he meant 
 a lot in section 31. Kurtz v. Hebner, N. S. x. 93. "-coul 
 
 cv^'f ^ri-*"^ ^"7"'^ °^ determining the object of testator's bounty or the 
 sub ect of disposition parol evidence may be received; but in this case the 
 
 So^Vtirirumtur^em "t^' ''"' ^"'^^'''' ^"^ "^^ --' -"!<» -' ">»'' 
 173. In a bill for a partition of land devised by a father, parol testimonv is 
 admissible to show that one of the parties (a daughter) has been in nosles 
 sion of part of the land, and has made yaluible improvements under a Zm 
 180 by testator to convey. Such evidence is not \o affect he wiH but th^ 
 rights of parties under it, and the daughter is entitled to have the part im 
 
 rpYrtr ranttt llr^^d " '" '' ^''-' '^ '^ '^^^^^^^^ 
 
WILL. 989 
 
 ment recovered or by compromise," that one-fifth of the sums so to be paid 
 be charged to bis son. On these liabilities suits were brought and large sums 
 properly and judiciously expended by the executors in defending against 
 them. Held, that no part of these expenses of suit could under the will be 
 charged to the son. Crosby t. Mason, N. S. vi. 18. 
 
 175. No particular language is necessary to create a charge on land; the 
 intention to charge is to be carried out whenever it is discoverable from any- 
 thing in the instrument. Okeson's Appeal, N. S. viii. 703. 
 
 176. A conveyance of land in trust to pay the proceeds to the grantor for 
 life, then to his wife for life, and after the death of both, to be sold, and 
 certain specified sums to be paid to grantor's children, is not in the na- 
 ture of a will, and cannot be revoked. Ritter's Appeal, N. S. viii. 703. 
 
 177. Bequest void for uncertainty of recipients. In re White, 0. S. i. 280. 
 
 178. Remoteness. — "Die without heirs of the body," construed to mean 
 indefinite failure of issue. Landman v. Snodgrass, 0. S. iv. 253. 
 
 179. Where a testator devised the residue of his estate to his grand-chil- 
 dren equally, per capita, describing them as follows, viz.; "The children of 
 jny deceased daughter Sarah ; the child of my deceased daughter Catharine," 
 &c., &o. Catharine had two children living at the death of the testator, and 
 at the date of the will. Held, that both, were entitled to take as residuary 
 legatees. Urie's Executors v. Jenin and Wife, 0. S. i. C39. 
 
 180. A testator, by his last will, ordered his executors to sell his real es- 
 tate, and after payment of debts anti legacies, to pay the residue to his 
 " eight children," but, " if any of my children above named should die before 
 receiving their share, without leaving lawful issue, then said share to be 
 equally divided among the survivors." The executor settled his administra- 
 tion account in the Orphans' Court, ascertaining the distributive share of 
 each child, and on the 8d of September, 1851, the Court decreed distribu- 
 tion of the fund in his hand, " according to the will." In January following, 
 Elizabeth, one of the children, died, having first made a will, devising her 
 whole estate. The executor of the father's will paid over her distributive 
 share to her executor, and then instituted this action to recover it back. 
 Held, that the payment made by the father's executor to hers was properly 
 made, and could not be recovered back. Cessna, Executor v. Rupel, Executor, 
 0. S. i. 639. 
 
 181. Though, for some purposes, a will is considered as speaking from its 
 execution, the time of its inception, and for others, from the death of the 
 testator, the time of its consummation; yet the general rule is, that it speaks 
 from the death of the testator, where there is nothing in its language indi- 
 cating a different intention. Gold v. Judson, 0. S. i. 571. 
 
 182. Parol evidence is not admissible to vary the construction of a will 
 where there is no ambiguity created by the application of extraneous cir- 
 cumstances. Canfield v. Bostwick, 0. S. i. 571. 
 
 183. Fraudulent Debtor. — A court of equity has jurisdiction of a bill 
 against the administrator of a deceased debtor, and the person to whom real 
 and personal property was conveyed by the deceased debtor, for the purpose 
 of defrauding creditors. Hagan v. Pope, 0. S. i. 186. 
 
 184. Where B., who died in 1837, had executed a will in 1819, wherein he 
 devised one-half his real estate "to his legal and natural heirs and their 
 heirs forever, to be divided among them in equal shares, to be share and 
 share alike." Held, that only those who would have been heirs under the 
 act of 1833 came within the description, and, therefore, that children of 
 deceased nephews and nieces did not take. In re Ramsey's Estate, 0. S. 
 
 i. 94 
 
 ' 185. Under a devise to "heirs" the estate vests in those who answer that 
 description at the time of the death of the testator. Where a term of known 
 legal signification is used, the Courts will consider that the testator used that 
 term in that recognized sense, and will so construe the will. Id. „ . . 
 
 186. A testator, by his will, proved in 1829, devised as follows: ''Princi- 
 pally, and first of all, I commend my soul into the hands of Almighty Uod 
 who gave it, and my body to the earth, to be buried in a decent and Chris- 
 tian-like manner, at the discretion of my executors hereinafter named, and 
 as to such worldly estate wherewith it has pleased God to bless me in this 
 life, I give and dispose of the same in the following manner, to wit : Item, it 
 
990 WILL. 
 
 is my will, and I order and direct that all ray just debts and funeral expenses 
 shall be first paid and satisfied. Item, it is my will, and I give, devise and 
 bequeath unto my beloved wife, Elizabeth, eighty-five acres, and allowance 
 of land of my dwelling plantation, whereon I now live, situate in Spring Gar- 
 den township, in the county aforesaid, she to have the choice of the same 
 wherever she thinks proper; and further I do give and bequeath unto my 
 said wife, all my movable property or personal estate, of what kind or nature 
 the same may be, together with all the moneys due me, by bond, note or 
 book account, to and for her only proper iise and behoof whatever. Item, it 
 is further my will, that my brother and sisters divide the residue of my said 
 plantation amongst themselves, share and share alike." Held, that the in- 
 troductory words might be brought down to interpret the subsequent devise 
 to the wife, and that they enlarged it into a fee. Schriver v. Mtfer, 0. S. i. 227. 
 
 187. Where one devises 'a'U his real estate for life, and all his personal 
 estate absolutely, "having full confidence that his wife will leave the surplus 
 to be divided at her decease justly among her children," the words do not of 
 themselves import a trust, nor will they be so construed, without other ex- 
 pressions to control them. Mekonkey'a Appeal, 0. S, i. 342. 
 
 188. Words in a will expressive of desire, recommendation, and confidence, 
 are not words of technical, but of common parlance, and are laatprimt facie 
 sufficient to convert a devise or bequest into a trust ; and the old Roman and 
 English rule on this subject is not part of the common law of Pennsylvania. 
 Id. 
 
 189. Such words may amount to a declaration of trust, when it appears, 
 from other parts of the will, that the testator intended not to commit the 
 estate to the devisee or legatee, or the ultimate disposal of it to his kindness, 
 justice, or discretion. Id. 
 
 190. A provision in a will that trustees, in whom real and personal estate 
 was vested, should apply the rents and profits to the use of the testator's 
 infant children and their unborn issue for the lives of the two youngest of 
 three children, though, by possibility, two or more successive generations 
 might enjoy the benefit for their lives, respectively, does not contravene the 
 statute (1 R. S. p, 723, g 18) against the creation of successive life estates, 
 or of a remainder for life upon a term for years, in favor of persons not in 
 being. Gilman v. Beddington, N. S. i. 438. 
 
 191. A trust to receive the rents and profits of real estate, and apply them 
 to the use of the issue of the testator's infant children, for a period not ex- 
 ceeding two lives in being, is not void, because the beneficiaries are not ascer- 
 tained. Id. 
 
 192. What passes by the words " securities for money." Knight v. Eobin- 
 mn, 0, S. V. 315. 
 
 193. Ulterior bequest on failure of prior gift. Tennant v. Heathfield, 0. S. 
 V. 817. 
 
 194. Devise to trustee for separate use of feme covert. Legal title will be 
 construed in the trustee. Ware v. Richardson, 0. S. ii. 486. 
 
 195. Bequest void for' uncertainty. See Board of Missions v. McMaster, 0. 
 S. iv. 526. 
 
 196. Under a will, which, after various specific devises and bequests, con- 
 tains the following provision: "If anything remains, my will is that the 
 residue shall be deposited in the Worcester Savings Bank, and to be appro- 
 priated by my executors to the relief of my heirs, if they at any time shall 
 need pecuniary assistance," the entire beneficial interest in the residue vests 
 in those who are the heirs at law of the testator at the time of his death, 
 and, if they all desire it, and the executors consent, the trust may be an- 
 nulled, and the property distributed amongst, them, upon their executing a 
 release to the executors. Smith v. Harrington, N. S. i. 766. 
 
 197. Testatrix was possessed of personal and real estate, and by her will 
 directed the latter should be sold by her executors, and, after giving numer- 
 ous pecuniary legacies, principally among her relatives and the relatives of 
 her deceased husband, she added, " and if there is anything over and above 
 left, let It be equally divided among all the heirs." Meld, that the word heirs 
 in the above connection, means "next of kin." Jane Scudder's Executors v. 
 Isaac Vanarsdale and Others, N. S. i. 762. 
 
 198. Where money or personal property is bequeathed to the heirs of A., 
 
WILL. 991 
 
 or to the heirs of the testator, if there be nothing in the will showing that 
 the testator used the word in a different sense, the next of kin are entitled 
 to claim under the description as the persons appointed by law to succeed to 
 personal property. Jane Scudder'a Executors v. Isaac Vanarsdale and Others, N. 
 S. i. 762. 
 
 199. AVhere there is no trust, and there is no personal estate, in the distri- 
 bution of which any trust can arise, devisees who claim merely legal estates 
 in the real property, cannot bring a suit in equity to obtain a judicial con- 
 struction of the will of the testator. Onderdonk v. Mott and Others, N. S. i. 182. 
 
 200. If the question to be determined is a purely legal question, concern- 
 ing the nature of the estates "created by a will in the lands devised, it seema 
 the proper remedy is in court of law, by an action of ejectment. Id. 
 
 201. An order of the Supreme Court, reversing a surrogate's decree, ad- 
 mitting a will to probate for error in law, and remitting the proceedings to 
 the surrogate, is a final determination in the Supreme Court, and is appeal- 
 able to this (N. Y. Court of Appeals) court. Talbot v. Talbot, N. S. i. 181. 
 
 202. Under section second of Act 6th May, 1844, a bequest by a testator to 
 his sister is valid, though she was dead when the will was written, but left 
 children, who survived the testator. Minter's Appeal, N. S. i. 563. 
 
 203. Construction of the words " issue," "children." See Weldon v. Hoy- 
 land, N. S. i. 375. 
 
 204. If it be doubtful whether a legacy bequeathed by will is vested or 
 contingent, the law inclines to treat it as vested ; and where it is evident, 
 from the will, that the testator intended to make an entire disposition of his 
 estate, which intention would be defeated, if a legacy given were not vfested, 
 it is an influential consideration that the legacy be constructed as vested. 
 Burets Executor v. Burds Administrator, N. S. i. 626. 
 
 205. The word "heir" in a will, when used in connection with real estate, 
 is to be strictly construed, unless it clearly appears from the instrument that 
 a different meaning was intended. The heirs of a person are those upon 
 whom the estate vests by operation of law, and the husband, in respect to the 
 real estate of his wife, dying without children, is included in that description, 
 and the fact that she gives him a pecuniary legacy does not necessarily ex- 
 clude his- right of heirship in any remainder undisposed of by the will. 
 Richards v. Miller, N. S. x. 727. 
 
 206. A devise over which never can take effect leaves the estate in first 
 taker. Smiley v. Bailey, N. S. x. 534. 
 
 207. Bequest of money, "both principal and interest (if she needs it) 
 during her lifetime." Paul's Estate, N. S. ii. 447. 
 
 208. Condition in devise. Rules to determine whether a strict condition 
 or not. Stanley v. Colt, N. S. vii. 57. 
 
 209. One bought land subject to the payment of the dower of a widow 
 charged upon it in the hands of the grantor, but the grantee did not sign nor 
 seal the deed, in the habendum of which the charge of the dower was ex- 
 pressed ; he devised the land to his daughter by his will, and after his death, 
 and when the dower had become payable by the death of the widow, an ac- 
 tion of debt was brought against his executors for the dower, by those eo- 
 titled thereto. Held, that the words in the habendum of the deed to the 
 testator, did not in themselves import a covenant or promise by the accept- 
 ance of it, to be personally answerable to discharge the dower. Shoenber- 
 ger's Executors v. Hay et al.. N. S. i. 565. 
 
 210. Testator gave an annuity, or clear yearly rent charge ot £Sm to 
 his niece A. B. for her life: and after her decease, he gave the said annuity 
 of rent charge unto her children equally, if more than one, share and share 
 alike, to be applied for their maintenance until the youngest should attain 
 twenty-one: on the happening of which event he directed the said annuity 
 to be absolutely sold by such children, and the proceeds to be equally di- 
 vided among them: and he charged the said annuity upon his real estate, 
 which, subject to the said annuity, he devised to H. in fee. Ihis gilt held to 
 create a rent-charge on the estates in fee simple. Mansergh v. Campbell, O. S. 
 
 vii. 505. . , - 1 
 
 211. A testator, by his will, gave to his wife certain articles of personal 
 property, and one-third of the net income of all his real estate, after payment 
 of all taxes, assessments, and interest due thereon, during her natural lite. 
 
992 WILL. 
 
 Upon her death the payments were to cease, and the said one-third of the 
 net income was to go to the heirs. The provisions were not stated to be in 
 lieu of the dower. Held, that the widow was not put to her election. Tobiaa 
 T. Ketchum, N. S. i. 634. 
 
 212. Devise with power of testamentary disposition, hut devise over in 
 case of death of first devisee intestate and without issue. Freeborn v. Wagner, 
 N. S. vii. 512. 
 
 213. A will giving a certain sum in trust, " to appropriate the same in 
 such manner as I may, by any instrument in writing, under my hand, direct 
 and appoint," and an appointment by a separate paper, signed by the tes- 
 tator, but not duly attested, declaring the appropriation and naming the 
 beneficiary, does not create a valid bequest in favor of the person thus de- 
 clared and appointed by the unattested instrument. Thayer v. Wellington et 
 al., N. S. iv. 87. 
 
 214. If a will direct executors to sell a certain tract after the death of a 
 certain legatee, and contains no other power of sale, a sale in the lifetime of 
 such legatee is void. Booraem v. Wells, N. S. viii. 127. 
 
 215. Where a residuum of personal estate is disposed of by a will, in two 
 parts, and the first disposition is invalid, the sum does not go to the legatee 
 of the other part, but goes to the next of kin. Beekman v. Bonsor, N. S. i. 179. 
 
 216. And where the sum devoted to the invalid prior purpose, cannot be 
 ascertained by reason of the failure of that purpose or otherwise, the gift of 
 the remainder is void for uncertainty in the amount. Id. 
 
 217. As to effect of a bequest of personal property for life or during wid- 
 owhood. See Dole v. Johnson, N. S. i. 203. 
 
 218. A gift'of slaves to one for the term of his natural life, and at his 
 death to his lawful issue forever," vests in him a life estate only. Hancock et 
 al. V. Butler, 0. S. viii. 39. 
 
 219. Where a testator gives a life estate in his funds, and at the expiration 
 thereof gives the principal to be divided among several, and if any die, then 
 to the survivors, without specifying the time of survivorship, he is held to 
 mean the contingency to extend over the whole period which elapses before 
 the time of distribution or expiration of the life estate, unless the context 
 points out another time ; in other words, the legacy does njot vest till the 
 death of the tenant for life. Richardson v. Robertson, N. S. i. 372, 373. 
 
 220. A will which authorizes executors not only to sell at their option, but 
 also to make valuation, division, and allotments of the estate devised, and to 
 make deeds of conveyance therefor, breaks the descent, and vests the estate 
 in the executors, and the heir at law cannot maintain ejectment therefor 
 Wallaces. Wallace, N. S. i. 42. 
 
 221. Testator gave leasehold premises to M. R. for life, and at his death to 
 A. E. and her children ; but if they should die without issue, in that case the 
 property was to be divided between four persons nominatum. A. R. had no 
 children, either at the death of the testator or of the tenant for life, A. R. 
 took only an estate for life, with remainder to her children. The rule in 
 Wilds' case has no application to personalty. Audsley v. Mom, 0. S. vii. 568. 
 
 222. A testator, by will, directed his executors to account for and pay over 
 half yearly, to his three daughters, " and to each of them during their 
 natural lives, the income or profit arising out of each of their share of the 
 residue, and after the death of either, then to descend and go to the child, 
 and if chi dren, share and share alike. Should, however, either of my 
 daughters die, and leave no lawful issue, then such share or portion is to fall 
 back again to the residue, and form a part of the same." Hel4, that the 
 daughters took an estate tail in the residue of the testator's estate, which, 
 under the Act of April 2Uh, 1855, became an estate in fee simple. Haldemak 
 V. Haldeman, N. S. i. 443. 
 
 f„ m!■H^^^^,^*''*rrPT!u^^• ^''^ V^^^ °f " ^"1 "'"«' " Ig'^« and bequeath 
 to my daughter Elizabeth Bones, the use and life estate, in her own proper 
 person (but without power to convey the same to any other person for any 
 l!-A^ "^^^^'^^f- ?»? ™«f" *S«> tenement, etc., and at the decease of my 
 uch of hfr Ph'-l! "^''^^ *V""' ^•" "■■ '^'^<" "^ ^''"'1 I ''"«*'y bequeath to 
 that IS the child or children of any deceased child of hers shall hold the 
 same interest and right that the deceased parent would have held if living." 
 
WILL. 993 
 
 Held, that under tie terms of the will, Elizabeth Bones took only an estate 
 for life. Guthrie's Appeal, 0. S. ix. 354. 
 
 224. The oases of McKee t. McKinley, 9 Casey, 89 ; Williams v. Leech, 4 
 Casey, 89; and Nagle's Appeal, 9 Casey, 89, questioned. Id. 
 
 225. The word "issue" in a will is a word of limitation, which may, how- 
 ever, by words of distribution among the issue, and by words of super-added 
 limitation, give rise to a presumption of a differgnt intention in the testator. 
 Kay T. Scates, 0. S. ix. 285. 
 
 226. The words "die without issue," "in default of issue," "for want of 
 issue," "on failure of issue," or "die without leaving issue," import an in- 
 definite failure of issue, from which, after a devise to one for life, an estate 
 tail will be implied. Id. 
 
 227. Construction of wills. — Judicial romance. — Legal miscellany. 0. S. 
 Ti. 180. 
 
 228. The intention of a tesator to cancel or revoke a clause in his will, 
 however strongly declared, is of no consequence unless it be carried out by 
 some act amounting, in judgment of law, to an actual cancellation or revo- 
 cation. Clark V. Smith, N, S. i. 182. 
 
 229. A testator, in his will, after various devises and bequests, directed a 
 certain sum to be invested, and the income thereof to be paid to his wife 
 during her life, and, after her death, to be distributed among various legatees, 
 in certain specific sums, and gave the rest of his estate to his residuary lega- 
 tees. He died without leaving issue, and his widow waived the provisions of 
 the will in her behalf, and thereby became entitled to a larger share of his 
 estate than the will gave her. Held, that the residuary legatees are entitled, 
 during the life of the widow, to the income of the fund provided for her. and, 
 after her death, the principal should go to the legatees named in the will, in 
 like manner as if the widow had accepted the provision therein made for her. 
 Firth V. Denny, N. S. i. 245. 
 
 TI. SOLDIEBS' AND MaRINERS' WiLLS. 
 
 230. By E. S. c. 74, J 18, " a soldier in actual service, or a mariner at sea, 
 may dispose of his personal estate and wages," as he might have done under 
 the common law. Leathers v. Greenacre, N. S. vi. 533, 692. 
 
 231. The terms " in actual service," and " engaged in an expedition," are 
 synonymous. Id, 
 
 232. The term " expedition " is not to be confined to that movement of the 
 troops which immediately precedes the actual conflict and shock of battle. Id. 
 
 283. A will made by a soldier without usual statute formalities, while in 
 barracks, or at a military station in a loyal state, not exposed to the enemy, 
 and before moving under orders against the foe, is not the will of a " soldier 
 in actual service," and not entitled to probate as such. Id. 
 
 234. Otherwise, if he had marched into the enemy's country and was act- 
 ing with soldiers confronted by the enemy, though in winter quarters and not 
 upon any present movement of the troops. Id. 
 
 235. In August, 1862, J. B. L. enlisted in the 1st regiment of Maine cavalry, 
 and was tbereafterwards, in the same month, mustered into the United States 
 military service. March 6th, 1863, while lying in camp at Stafford C. H., 
 Va.,he wrote a long letter to defendant (with whom he had previously deposited 
 the two notes mentioned in his letter), in which he said : — "As life is uncer- 
 tain, I will give you my wishes in regard to my property, if I should fall here." 
 "The face of the note that" G. H. L. "owes me and now in your hands, and 
 also the note against" C. S., "and interest, I want you to distribute among 
 my brothers and sisters as you think proper, and all other property to my 
 wife (naming her), and for her to pay my debts," (signed) March 2d, 1864, 
 he started on a raid to Kichmond in company with others under military 
 orders, was captured and died in prison, Marcli 16th following. Held, that 
 J. B. L. was a " soldier in actual sei-vioe " when he wrote the letter, and that 
 it was a will entitled to probate. Id. 
 
 236. Where a man, who was by profession a mariner, made his will in the 
 Delaware river, on board a steamer, which was towing down said river a 
 Tessel in which he was to sail as a passenger to Chagres, there to take com- 
 mand of a lighter to lighten vessels arriving in the river, it was held that the 
 will was not within the exception in favor of mariners at sea, the testator 
 being at the time of its execution » passenger and not a mariner in service, 
 
 63 
 
994 WILL. 
 
 and being on his way to engage in a business, which was not that of a mari- 
 ner at sea. Wamn et al. v. Harding, 0. S. i. 408. 
 
 237. What was held a good military will. Gould y. Safford's Estate, N. S. 
 vi. 775. „ „ 
 
 238. What amounts to being " in actual service. Id. . i, t , 
 
 239. Donatio mortis causa.— One being at sea, and seized with cholera, 
 handed a sailor a bag of gold dust and coin to give to the purser of the ves- 
 sel, which was done in his presence, being asked by the purser whom he 
 wished to have his effects, he replied: "his brother and sister at P.," giving 
 at the same time his name. He died a few hours afterwards, ffeld, a valid 
 donatio causa mortis. Michner v. Dale, 0. S. ii. 448. 
 
 VII. Or Devises to Charitable and Religious Purposes. 
 
 240. Where, in the face of the will, there is nothing to show that any trust 
 or purpose was intended other than a gift, it must be shoyvn, before the be- 
 quest can be set aside, that the legatee undertook to devote the fund to an 
 illegal charitable purpose. Lomax v. Ripley, 0. S. iii. 510. 
 
 241. A power of appointment given by will; to devise certain property 
 among such benevolent, religious, or charitable institutions, as may be 
 deemed proper, is void, as being too vague and indefinite. Norris v. Thomp- 
 son's Ex'rs, N. S. viii. 245. 
 
 242. Bequest in trust for charitable purpose, the interest to accumulate for 
 fifty years, is valid even if the accumulation cannot be allowed so long. Odell 
 V. OdeU, N. S. V. 384. 
 
 243. A devise to the commissioners of a county, to be appropriated by the 
 commissioners and their successors for the use of the county forever, vests a 
 title in fee simple in the county. Hayward v. Davidson, N. S. xiii. 254. 
 
 244. A testator may provide in his codicil to a will made in .lanuary, 1873, 
 that if he should die within 30 days a former will made in 1871 should be 
 deemed as his last will. Hamilton's Estate, N. S. xiii. 720. 
 
 245. Charitable bequests made in the will of 1871 were not avoided by the 
 Act of April 26th, 1855. Id. 
 
 246. A gift to charity, which is void at law for want of an ascertained 
 beneficiary, will be upheld by the courts of this state, if the thing given is 
 certain, if there is a competent trustee to take the fund and administer it as 
 directed, and if the charity itself be precise and definite. Beekman v. Bonsor, 
 N. S. i. 179. 
 
 247. In other respects charitable trusts are subject to the rules which 
 appertain to trusts in general. The trust must be capable of execution by a 
 judicial decree in affirmance of the gift as the donor made it. The cy pres 
 power, as exercised in England in cases of charity, has no existence in the 
 jurisprudence of this (N. Y.) state. Id. 
 
 248. A charitable gift of a sum which is left uncertain, or which is left to 
 the discretion of executors who have renounced the trust, is void, and the 
 next of kin are entitled to the fund. It seems that such a defect is incurable, 
 even by the cy pres power. Id. 
 
 249. Devise to unincorporated society, see Coepoeation, 294. 
 
 250. Devise to the " Methodist and Presbyterian Foreign Missionary Soci- 
 eties." At the testator's death there was no corporation of the former name ; 
 but the "Missionary Society of the Methodist Episcopal Church" was sub- 
 sequently incorporated, whose object, as stated by its charter, was "to 
 diffuse more generally the blessings of education, civilization, and Christian- 
 ity throughout the United States and elsewhere." Held, that this society 
 could not take ; and per Selden, J., that it was not a " foreign missionary 
 society," under the terms of the devise. Chittenden v. Chittenden, 0. S. i. 538. 
 
 251. The " Trustees of the General Assembly of the Presbyterian Church 
 in the United States " was incorporated in 1799, and authorised to take by 
 devise, prior to the testator's death, the corporation duly constituted an 
 agency or board, styled the " Board of Foreign Missions of the Presbyterian 
 Church, &c.," which was the only foreign missionary society in body of 
 that church in existence, at the time. Held, that this board was incompe- 
 tent to take in itself, and that a devise to it was not a devise to the " Trus- 
 tees of the General Assembly." Id. 
 
 252. A testator, residing in Louisiana, and leaving there a large succession 
 ,by his will, after particular legacies, gave all the residue and remainder of 
 
"WILL. 995 
 
 his estate, real and personal, of whatever nnture (subject to certain annui- 
 ties), " to the corporations of the cities of New Orleans and Baltimore for- 
 eTer, one-half to each, for intents and purposes afterwards declared;" he 
 then directed his executors to convert all his personal estate into realty, 
 whereby the whole of his estate should become a permanent fund in real 
 estate, "no part of which shall ever be touched, divided, sold, or alienated, 
 but shall forever remain together as one estate, and be managed" as he 
 should order.- For the management of this estate he directed the cities each 
 to select annually fiiree agents, whose duty it should be to receive seisin and 
 possession of the estate from his executors immediately after his death. They 
 were to lease or rent the lots, cultivate plantations, collect rents, pay the 
 annuities, and in tine to do all the acts necessary to its perfect management 
 according to the will; it being the will of the testator "that no part of the 
 general estate or revenue from rents arising from said general estate should 
 go into the hands of the corporate authority of the said cities, but the said 
 authorities should have forever the supervision of it." The relations thus 
 established between the cities and the agents were to be perpetual; no alter- 
 ation could be made, or sale or traffic or surrender of, or in the interests or 
 powers given, in case of any combination to violate the provisions of the 
 scheme of management, the " general estate was limited ovef to the states of 
 Louisiana and Maryland, for the purpose of educating the poor of those 
 states." He further provided, that if there should be "a lapse of the lega- 
 cies from a failure to accept, or to any other cause or means whatsoever," 
 the shares should enure for the benefit of the state in which the cities are 
 situated, that the legislatures thereof might carry his intentions into effect. 
 The testator then provided a minute and detailed scheme in particular for 
 the expenditure of the revenue of the estates. One-eighth part of the annual 
 income for forty years to the Colonization Society; three-eighths to be 
 accumulated in a particular manner, for the founding of certain charitable 
 institutions. The remainder of the income, and the whole, after the first 
 objects were fulfilled, were for the free education of the cities of New Or- 
 leans and Baltimore. The, design of the will, as appeared from its whole 
 tenor, was to create a perpetual foundation, without powers of alienation or 
 sale. Seld: 
 
 1. That the cities were legatees by title universal, the mode of adminis- 
 tration of the legacy being governed, howevor, by the glau established by 
 the testator. 
 
 2. That the cities as such, were entitled to take as legatees, and that the 
 purposes of the legacy were not such, in general, as to disentitle them to hold. 
 
 3. That the dispositions of the will were not within the prohibition 
 against substitutions and fidei commissa, in the Art. 1507 of the Civil Code of 
 Louisiana. 
 
 4. That the testator had authority to define the uses and destination of 
 his legacy. 
 
 5. That the prohibitions in the will against alienation and division, so 
 far as they were illegal, were merely void in themselves, and did not vitiati,- 
 the other dispositions of the will. 
 
 6. That the fact of the uses for the benefit of the city of Baltimore being 
 foreign to the state of Louisiana, did not affect their validity. > 
 
 7. That if the annuities for accumulation first given were void, which was 
 not determined, they would merely sink for the benefit of the legatees. 
 
 8. And that even had the prior dispositions been invalid, the limitation 
 over the states of Louisiana and Maryland was good. McDonoughy. Murdoch, 
 0. S. ii. 400. 
 
 253. Corporations in Louisiana may receive legacies for purposes not for- 
 eign to the institution. Id. 
 
 254. The fidei commissa prohibited in the civil code, are oTrty substitutionary 
 limitations of property, and have no analogy to common law trust. Id. 
 
 255. The provision of the civil code (Art. 2026), that " impossible condi- 
 tions, those which are contrary to laws or morals, are to be reputed, not 
 written," while applicable to all modes of appropriation, use, or destination 
 of property by contract or legacy, in cases of legacy, merely annuls the con- 
 ditions without affecting the validity of the donation itself. Id. 
 
 256. A will contained the following clause : " In case of having no children, 
 
996 WILL. 
 
 I then leave and bequeath all my real estate at the death of my wife to \T. 
 K., son of brother J. K., on condition of his marrying a daughter of W. T., 
 and my niece K. T., in trust for the eldest son or issue of such marriage." W. 
 T. and his wife both died without having had a daughter born to them, 
 ■whereby the performance of tlie condition pn which W. K. took the estate 
 become impossible. Held, by the Supreme Court of the United States, that 
 this clause vested in W. K. the legal estate in fee simple, cm a condition subse- 
 quent. Vint V. Heirs of King, 0. S. ii. 713. 
 
 257. But W. K. took no beneficial estate, in fee, but an estate in trust for 
 his issue, springing from his intermarriage with the unborn daughter of a 
 husband and wife, both of whom died without the birth of a daughter, and 
 that the trust having failed, there remained a resulting trust to the heirs at 
 law of the testator, who were entitled to partition. Id. 
 
 VIII. Election. 
 
 258. After acquired real estate, when included in general devise — effect 
 of electing to take or reject property given by will. See Gable's SxeSrs v. 
 Daub, N. S. i. 692. 
 
 259. What are assets vphere widow elects to take against the will. Flymp- 
 ton V. Plympton, W. S. iii. 374. 
 
 260. Effect of such election on the provisions of the will as to other par- 
 ties. Id. 
 
 261. A beneficiary under =■ will, whose property is given by the vrill to 
 another, cannot take and also claim his own property, he must elect. Huston 
 V. Cone, N. S. xiii. QM>. 
 
 262. It must plainly appear that it was not testator's intention for him to 
 have both. Id. 
 
 263. In case of widow's dower the rule is the reverse. Id. 
 
 264. A court of equity has power to compel an election. Id. 
 
 265. Such election, to be. binding, must have been made with a knowledge 
 of the facts and the party's rights. Id. 
 
 266. Money borrowed by a husband from his -wife, and secured by a note, 
 will, after her death, be regarded as a claim against him, and a.release of it, 
 by her will, is a beneficial provision for the husband. Id. 
 
 267. The English rule that cases, in which a legacy is given, upon the ex- 
 press condition that the legatee shall give up his claim to real estate, are dis- 
 tinguishable from those in which it is clearly implied, rests upon no sufficient 
 reason, and cannot be satisfactorily explained. Van Dyke v. Van Dyke, N. S. 
 viii. 462. 
 
 268. The doctrine of equitable election is grounded upon the ascertained 
 intention of the testator. Id. 
 
 269. Equitable election rests upon the principle of compensation, and not 
 of forfeiture, which applies only to the non-performance of an express con- 
 dition. Id. 
 
 ^ 270. Courts of equity in Pennsylvania have jurisdiction in cases of elec- 
 tion on the ground. of trust, although the case arises under a will, and bears 
 incidentally upon the settlement of a decedent's estate. The jurisdiction of 
 the orphans' court is concurrent, but not exclusive. Id. 
 
 IX. Conversion. 
 
 271._ The widow having converted the personalty, and invested the pro- 
 ceeds in real estate, in her own name in fee simple, it was held that in equity 
 It must be treated as if she had taken the title to herself for life, with re- 
 mainder to the daughters. Williamson v. Hall, N. S. x. 466. 
 
 272. When a testatrix, upon making certain specific bequests, gave the re- 
 mainder of her estate to her heirs at law, held, that notwithstanding the ex- 
 ecutor had sold the land devised and converted it into money, the surplus 
 reniaining after the payment of debts and legacies should, for the purpose 
 of distribution, be treated as land, and go to the heirs, and not the next of 
 tan to the testatrix. Held, also, that the remainder should be disposed of 
 precisely as if no will had been made. Richards v. Miller, N. S. s. 727. 
 
 X. Of the Cancellation and Revocation of a Will. 
 
 273. A will lost or spoliated before the decease of testator cannot be estab- 
 lished. Sarah Sinclair's Will, 0. S. iv. 639. 
 
 274. The reason that the marriage of a woman revokes her will made 
 
WILL. 997 
 
 before mai-riage, is because she is disabled by coverture to dispose of the prop- 
 erty in the will, and it ceases to be ambulatory. Morton v. Onion, N. S. xii. 403. 
 
 275. Where a considerable portion of the property disposed of by such » 
 will, remains in her, unaffected upon her death, by any marital right of her 
 surviving husband, the will may be proved. Id. 
 
 276. The words "cancelled and annulled" written under a will, constitute 
 a cancellation, and the will cannot be revived by parol declarations of such 
 purpose, \yamer v. Warna; N. S. iv. 351. 
 
 277. A statute operating upon a will may destroy it. See Note to Moultrie 
 V. Hunt, N. S. i. 16U. 
 
 278. The intention of a testator to cancel or revoke a clause in his will, 
 however strongly declared, is of no consequence, unless it be carried out by 
 some act amounting, in judgment of law, to an actual cancellation or revo- 
 cation. Clark V. Smith, N. S. i. 182. 
 
 279. A testator having an only son, James W. Smith, devised cei-tain real 
 estate to his "son, James W. Smith." After the execution of the will, he, 
 with a pen, erased from the clauses of the will containing the devise the 
 name "James W. Smith,'' leaving the word "son" uncancelled. Held, that 
 neither the will nor the devises to James W. Smith were revoked by the 
 erasures. Id. 
 
 XI. Nuncupative Will. 
 
 280. Nuncupative will of a soldier may be established by one witness. 
 Gould V. Safford's Estate, N. S. vi. 775. 
 
 281. Letter announcing death of testator, and, in a general way, his dis- 
 position of his estate, will not establish a nuncupative will — forms generally 
 requisite. Taylor's Appeal, N. S. iv. 192. 
 
 511. Perpetuities. 
 
 282. Devise void as infringing rule against perpetuities. ^Yood v. Griffin, 
 N. S. V. 703. 
 
 283. A probate of a will in Louisiana, of a person domiciled in New York 
 at the time of his death, is valid until set aside in Louisiana. Foulke v. Zim- 
 merman, N. S. xii. 120. 
 
 284. Testator, domiciled at Philadelphia, devised certain lands in Pennsyl- 
 vania to twelve trustees, "in trust for the formation and support of a home 
 for aged, infirm, or invalid gentlemen and merch.ants, where they may enjoy 
 the comforts of an asylum, not eleemosynary, but, .as far as may be, by the 
 addition of their own means, and by reference to the Prytaneun of Ancient 
 Athens, an honorable home, with the hope that it may be perpetuated and 
 enlarged by the bequests of its grateful inmates, until it shall become worthy 
 of the city of Penn, and a blessing to a class whose wants have hitherto been 
 overlooked ; leaving to my trustees full power to conduct and carry out this 
 institution on the best possible plan, and to provide for its permanent use- 
 fulness in or near my native city." On bill filed and claim made by the 
 residuary devisees under the will, and by the heirs at law of the testator, to 
 have the devise declared invalid, inoperative, and void. Held, tl]<at the de- 
 Tise was good under the laws of Pennsylvania, and was valid as a charitable 
 use, Cresson v. Cresson, 0. S. vi. 42. 
 
 285. Whether, independent of the charitable character of the devise, it 
 could be sustained as a trust. Quxre? Id. 
 
 286. Domiciled foreigners are subject to our laws regarding wills in the 
 same manner as domiciled citizens. See Note to Moultrie v. Hunt, N. S. i. 167. 
 
 287. Of personalty, the law of the domicile where the will is made only 
 provisional. Id. 
 
 288. The rules of distribution are those prevailing at the testator's domi- 
 cile at the time of his deatli. Id, 
 
 289. Effect of change of domicile. — If the testntor, after executing the 
 will, changes his domicile, and resides under another jurisdiction at his death, 
 the formalities required by the new domicile must have been observed, or the 
 will is void. Moultrie v. Hunt, N. S. i. 148. 
 
 Xin. Condition in Restraint op Marriage, and Alienation, and herein 
 OF Forfeiture for Breach of the Condition. 
 
 290. A bequest of a sum of money, to be invested in land, of which the 
 rents and profits are to be applied to certain beneficiaries during fifteen years, 
 the land then to be sold, and the proceeds divided amongst the same persons, 
 
998 WILL— WITNESS. 
 
 is void, because it contemplates a trust which would unlawfully suspend the 
 powen of alienation. Beekman T. Bonsor, N. S. i. 179. 
 
 291. Condition or restraint of marriage. — Testator directed his trustees 
 fo pay an annuity to a single woman, by whom he had had an illegitimate 
 child, provided she should remain single, and that she should never cohabit 
 or have connection with any other man ; his reason being that, if she were 
 to marry, her child would be neglected, and, for a further reason, that no 
 man should have the spending of his hard-earned money. The annuitant 
 having married, it was held that the proviso against marriage was valid, the 
 conditions being incorporated with the gift, and the object being to protect 
 the child. Potter v. Richards, 0. S. iv. 128. 
 
 292. A devise to one and her heirs, with a condition that she shall not 
 alien during her natural life, is essentially a fee simple, and the condition 
 against alienation is void, and the law will not enforce it, however clear may 
 be the intention of the testator. Walker v. Vincent, 0. S. i. 125. 
 
 293. Revocation of devise. — A sale by testator of part of the land devised, 
 is a relocation only^i-o tanto. Andrew BrovirCa Estate, 0. S. i. 125. 
 
 294. When legacy forfeited for breach of the condition. Harper v. lAtlU, 
 0. S. ii. 185. 
 
 WINDMILL ISLAND. 
 
 Windmill Island, in the river Delaware, opposite the city of Philadelphia, 
 is within the jurisdiction of the port wardens. Tatham v. The Wardens of 
 Philadelphia, 0. S. T. 378. 
 
 WIRT, WILLIAM. 
 
 Biographical notice of. N. S. vii. 65. 
 
 WISCONSIN. 
 
 By the eleventh art. of the Constitution of Wisconsin, it is provided that 
 " no municipal corporation shall take private property for public use, against 
 the consent of the owner, without the necessity thereof being first estab- 
 lished by a verdict of a jury. The charter of Milwaukee authorized a judge to 
 appoint a jury in such cases, but made no provision for the swearing of the 
 jury. Seld, unconstitutional. Lumsden v. The City of Milwaukee, 0. S. vi. 157. 
 
 WITHDRAWAL ENTRY. 
 
 An action would not lie to compel B., an importer, to sign the requisite 
 withdrawal entry. Gill v. Pavenstedt, N. S. vii. 672. 
 
 WITNESS. 
 
 I. Of the Examination and Rights op Witnesses Generally. 
 
 1. Witnesses, if within the jurisdiction, party has a right to examine them 
 in open court. Branson v. Railroad Co., 0. S. ix. 350. 
 
 2. When party may contradict his own witness. People v. Skeehan, N. S. 
 vii. 320. 
 
 3. A party may prove the facts in issue to be different from a statement of 
 them by his own witness. Thornton v. Thornton, N. S. vi. 341. 
 
 4. But he cannot introduce testimony merely to discredit his own witness; 
 though he has been cross-examined upon new matter. The sanity of the 
 testator, and the regularity of the signatures, are branches of the same mat- 
 ter — the due execution of the will. Id. 
 
 5. Interest in the question goes only to the credit of a witness. Ferree v. 
 Thompson, N. S. vi. 640. 
 
 6. Competency of the debtor in an issue between prior and subsequent 
 judgment-creditors, to try validity of the prior judgment. Id. 
 
 7. A witness cannot be inquired of in cross-examination as to irrelevant 
 matters, for the purpose of contradicting him. Ti/ler v. Todd, N. S. x. 627. 
 
 8. Not a resident of this state, is entitled to mileage for the whole distance 
 travelled. Ducher v. Justices of Inferior Court, N. S. viii. 320. 
 
 9. Law does not presume reformation of a person of bad character. It 
 may be shown in answer. Rathbun v. Ross, N. S. vi. 128. 
 
 10. Where a question put to his own witness was improperly overruled, the 
 error was not cured by the party afterwards obtaining an answer to the 
 same question on the cross-examination of a witness of the opposite party. 
 Flanagan v. Lampman, N. S. iii. 183. 
 
 11. A party discharging, but not concealing a witness, cannot be asked his 
 reason therefor. Thornton v. Thornton, N. S. vi. 341. 
 
WITNESS. 999 
 
 12. The cross-examination of a witness examined and dismissed, who re- 
 turns to correct an error, may be limited strictly to the point corrected. 
 Thornton T. Thornton, N. S. ti. 341. 
 
 13. The court will not discharge recognizance to hold witness to testify. 
 Semble, the Attorney-General must first enter nol. pros. Reg. v. Freakhv S 
 ii. 118. r ^ n, 
 
 14. Parol evidence showing witness had been in state prison, inadmissible. 
 Rathbun t. Ross, N. S. vi. 128. 
 
 15. A witness is only allowed to detail facts, and not mere opinions not 
 based on facts. Fitzgerald v. Hayward, N. S. xii. 771. 
 
 16. The court will not order an officer having charge of witnesses who have 
 been excluded from the court-room until they should severally be called to 
 testify, to prohibit them from reading the newspaper accounts of the evi- 
 dence in the case. Commonwealth v. Ilersey, N. S. i. 178. 
 
 II. Op their Credibility. 
 
 17. The credibility of witnesses belongs to the jury, and any instructions 
 of the court tending to influence the jury on the question of credit would be 
 ■wrong. Martin v. The People, N. S. xi. 136. 
 
 18. A jury may convict on the unsupported testimony of an accomplice. 
 The State v. Litchfield, N. S. x. 376. 
 
 III. Partners, when Competent. 
 
 19. A partner who has assigned all his interest to a co-partner, is not a 
 competent witness to prove that a deceased partner was to be allowed a com- 
 pensation for his services in managing the business. Lyon v. JBx'rs of Snyder, 
 N. S. xi. 400. 
 
 IV. Competency op Witness, how and when Incompetency is to be Established. 
 
 20. The competency of a witness cannot be questioned under a general ob- 
 jection to evidence. Garsed v. Turner, N. S. xii. 786. 
 
 21. Religious opinions. — He is a competent witness who believes in a God, 
 and also in the Bible, but does not believe that the only punishment inflicted 
 for wrongs in this life are the pangs of guilty conscience, or in a future state 
 of rewards and punishment after death. Bennett v. The State, 0. S. i. 382. 
 
 22. Competency of witnesses, subject discussed. N. S. iv. 74. 
 
 23. On the competency of witnesses, leading articles upon. N. S. i. 257. 0. 
 S. viii. 65, 193. 
 
 24. If insane party be competent to testify, other party may be admitted 
 under Gen. Stats. Mass., ch. 131. Kendall v. May, N. S. v. 319. 
 
 25. Objection to competency must be made before examination. Patterson 
 v. Wallace, N. S. iii. 309. 
 
 26. Competency when offered is the test of admissibility. If plaintiff is 
 examined and defendant dies afterwards, but before hearing, plaintiff's evi- 
 dence is admissible. Marlalt v. Warwick, N. S'. vii. 768. 
 
 27. It is too late to object to the competency of a witness after his testi- 
 mony has been given and commented onto the jury by the party objecting. 
 McEnroy et al. v. Dyer, N. S. iv. 166. 
 
 28. There is no rule of law excluding the testimony of a witness who admits 
 that he perjured himself on a former trial. Fisher v. The People, N. S. x. 480. 
 
 29. -Demandant in dower competent to prove her husband's death. Flynn 
 V. Coffee, N. S. vi. 318. 
 
 V. Iaxompetency OP Witness, AND HOW Eendered Competent. 
 
 30. Incompetency of, from state of mind, leading articles upon. 0. S. viii. 
 2, 9, 66. 
 
 31. Incompetency from want of religious belief. Id. 
 
 32. Incompetency by reason of crime. Id. 
 
 33. Where a party is called by the other side as a witness on the trial of a 
 ease, the objection to his competency is removed for all purposes, and he may 
 be called at a subsequent period in the same trial as a witness in his own 
 behalf. Seiss v. Storch, N. S. v. 536. 
 
 34. Rendered competent by release and otherwise, leading article upon. 0, 
 S. viii. 13, 199. 
 
 35. Interest to disqualify, must be direct, certain, and immediate, m the 
 result of the suit. Sculls. Mason et al.,'ii. S.n. 6Zb. 
 
 36. Vendor who had no title is not competent witness for vendee in action 
 by the real owner. Kusenburg v. Browne, N. S. ii. 503. 
 
1000 WITNESS. 
 
 87. Intereat or bias does not disqualify a witness. Arend v. Liverpool, New 
 York, ^c, Steamship Co., N. S. xii. 408. 
 
 38. Under the statutes of New Hampshire neither interest nor infamy is any 
 disqualification as a witness. Clements t. Marston, N. S. xii. 536. 
 
 39. Where suit is brought in the name of an individual for the use of a 
 borough, and on trial his name is striclien off, he is a competent witness. 
 Frescott v. Borough of Duqueme, N. S. It. 640. 
 
 40. In a suit against a sheriff for default of his deputy, the latter being 
 released, is a competent witness. Stevens v. Colby, N. S. v. 703. 
 
 41. An interested witness cannot be oflfered to purge himself of his interest 
 by his own voire dire. Coal Co. v. Foster, N. S. viii. 368. 
 
 42. A witness diyesting himself of a mere collateral interest in the suit, is 
 not within the rule in Fost v. Avery, 5 W. & S. 509 [Penna. Rep.]. Forrester 
 T. Torrence, N. S. x. 352. 
 
 43. Objection to witness on ground of incompetency by reason of interest, 
 must be made in time for other party to remove it if possible, or to supply 
 the want by other testimony. Graham v. Ferryman, N. S. viii. 128. 
 
 44. True test of interest in a witness. Braine \. Spalding, N. S. vi. 630. 
 
 45. Interest in the question only, will not exclude. Id. 
 
 46. Interest is no objection to the competency of a witness to testify in a 
 matter involving a question of practice addressed to the discretion of the 
 court. Gillespie v. Redmond, 0. S. iv. 446. 
 
 47. The assignor of a chose in action, though not a party to the record, is 
 not a competent witness in a suit thereon. lAndsley v. Malone, 0. S. ii. 572. 
 
 VI. Impeaohino the Testimony of Witness. 
 
 48. Where a witness is asked on cross-examination if he had a certain con- 
 versation with a person named, and denies it, the deposition of the person 
 with whom the alleged conversation took place is admissible to impeach the 
 ■witness, notwithstanding it was taken under a commission at the execution 
 of which the witness sought to be impeached was not examined. F. ^ C. Rail- 
 Toad V. Andrews, N. S. xiii. 566. 
 
 49. When evidence of witness's former character' admissible. Eathhun v. 
 Ross, N. S. vi. 128. 
 
 50. Witness, whose testimony is impeached by a witness who testifies that 
 he made a different statement out of court, may be recalled and asked if he 
 did. Glines v. Smith, N. S. ix. 518. 
 
 61. Evidence of a particular fact cannot be resorted to, to attack witness. 
 Id 
 
 52. Swearing falsely in one particular, may be believed in other matters, 
 otherwise corroborated. Knowles v. Feople, N. S. vi. 639. 
 
 53. Witness not to be impeached upon his general reputation, but the in- 
 quiry must be confined to his reputation for truth. Ferkins v. Moblev. 0. S. 
 iv. 633. * 
 
 54. Witnesses, character of, cannot be supported until assailed, see Evi- 
 
 BEXCB. 
 
 55. A witness who, though not formally impeached, testifies under circum- 
 stances tending to discredit him, has a right to detail facts otherwise irrele- 
 vant which corroborate his statements. Mauser v. Commonwealth, N. S. v. 668. 
 
 56. Impeaching or sustaining witness— what knowledge he must have to 
 make him competent to testify concerning other witnesses' character. Curtis 
 V. Fay, N. S. ii. 62. 
 
 VII. Parties and others Interested. 
 
 57. In an action by an executrix on a note, made by one defendant and 
 endorsed by the others to the testator, the maker is incompetent as a witness 
 to prove that it was usurious. L;/on v. Ex'r.i of Snyder, N. S. xi. 400. 
 
 58. Where the action is begun by the service of a summons upon the maker 
 and endorsers of a note, the fact that the maker does not enter an appear- 
 ance makes him none the less a party to the action, and as such incompetent 
 as a witness against a plaintiff suing an executrix. Id. 
 
 59. Admission of plaintiff's testimony to vary charge in his books. Folsom 
 V. Skolfield, N. S. vi. 564. 
 
 60 Wife of nominal plaintiff a competent witness. Bonelt v. Siowell, N. S. 
 
WITNESS. , 1001 
 
 61. After judgment of guod computet confessed by defendftnt, he is not a 
 competent witness as to amount due. Tutton v. Addams, N. S. iii. 574 
 
 62. Under the statute of Ohio of March, 1860, which provides that "no 
 person offered as a witness shall be excluded by reason of his or her interest 
 m the event of the action ; but this section shall not apply to a party to the 
 action, nor to any party for whose immediate benefit such action is prose- 
 cuted or defended," &c. Directors and stockholders of a bank are compe- 
 tent witnesses for the corporation in a suit to which it is a party. Lawaon v 
 Farmers' Bank of Salem, 0. S. 1. 617. 
 
 63. Parties as witnesses. Leading article, 0. S. viii. 26. 
 
 64. Testimony of defendant called as witness. Spauldina v. Hallenheck N 
 S. VI. 316. 
 
 65. Party to a suit not allowed to testify when adversary is executor or 
 administrator. Brown v. Brown, N. S. viii. 576. 
 
 _ 66. A party applying for an order to examine a party to the record in a 
 bill in equity must make it appear that the proposed witness is without inter-- 
 est at the time the order is asked. Anspack v. Thompson et al., N. S. iv. 362. 
 
 67. Disqualification of parties as, subject discussed. 0. S. v. 257. 
 
 68. The Act of July 2d, 1864, making parties witnesses in their own suits, 
 applies to cases in which the United States is a party. Green v. United States. 
 N. S. ix. 456. 
 
 69. When one of two defendants competent witness for garnishee. Philson 
 V. Barnes, N. S. v. 379. 
 
 70. The exclusive statutory right of the government to examine a claimant 
 in this court, and use or withhold his testimony at its option, is such a pre- 
 rogative, and is not taken away by the act declaring that "in courts of the 
 United States there shall be no exclusion of any witness," "because he is 
 a party to the issue tried." Jones v. United States, N. S. v. 353. 
 
 71. Therefore, in the Court of Claims, a party cannot testify in his own be- 
 half. Id. 
 
 72. The complainant is inadmissible as a witness when the answer is by a 
 party in a representative capacity. Sweet v. Parker, N. S. xi. 265. 
 
 73. Where a bill is filed against an infant, to have the title of certain lands 
 vested in the infant, declared to be in trust for complainant, the complainant 
 is not a competent witness in his own behalf, either at common law or under 
 the Act of 1867 of Illinois. Fischer v. Fischer, N. S. xi. 129. 
 
 74. The testimony of a witness on the trial of an action of slander, in 
 which he acknowledged certain words alleged as slanderous, cannot be proved 
 as an admission in an action against him. Osbom v. Forshee, N. S. xi. 598. 
 
 VIII. Agents, Axtornets, Exeoutoks, and Othees Acting in a Kepkesenta- 
 TivE Capacity. 
 
 75. Agents, servants, trustees, &c. Leading article, 0. S. viii. 195. 
 
 76. Members of municipal corporation, &c. Leading article, 0. S. viii. 21. 
 
 77. Not party to contract signed by him as agent, and therefor competent 
 witness. Lytic v. Bond, N. S. vii. 829. 
 
 78. An action against the principal by the party injured is res inter alios 
 acta as to the agent, and the record is not admissible in evidence against 
 him, except as to the amount of damages; therefore the rule that excludes 
 an agent from testifying for his principal in such an action, is not founded 
 in clear reason, and should not be extended. Dodge et al. v. Bache, N. S. iii. 
 244. 
 
 79. A witness who was a lawyer being under examination was questioned 
 touching a certain conveyance made to him by the bankrupt and wife and a 
 subsequent conveyance by him to the wife, and refused to testify thereon as 
 matter within the privilege of confidential communications between attorney 
 and client. Held, on the facts stated the questions were proper and must be 
 answered, and are not within such privilege. In re Bellis, N. S. viii. 747. 
 
 80. Competency of' attorney, as witness for his client. Braine v. Spalding, 
 N. S. vi. 630. 
 
 81. The maker of a note is a competent witness for the endorsee in a suit 
 against executrix of the endorser, to prove that the testator agreed to pay 
 the same at maturity, being at the time indebted to the maker.' Schley, Ex- 
 ecutrix V. Merritt, N. S. xii. 784. 
 
1002 WITNESS. 
 
 IX. Effect of .Death op one op the Parties. 
 
 82. Death of one party to cause of action, is ground for excluding the sur- 
 vivor from testifying. Ilollister, Adm. of Barrows v. Young , N. S. viii. 639. 
 
 X. Confessions. 
 
 83. In criminal cases confessions induced by the appliance of h6pe or fear 
 are not admissible, but if facts are elicited by such confessions they may be 
 given in evidence. Gates v. The People, 0. S. ii. 671. 
 
 XI. Testimony of Defendant in his own Behalf in Chiminal Cases under 
 
 the Statute. 
 
 84. Jury may believe prisoner's statement, allowed by statute, in prefer- 
 ence to witnesses. People v. Durant, N. S. v. 59. 
 
 85. The Act of 1864, oh. 280 Maine, allowing a person charged with crime 
 to be called as a witness at the trial "at his own request, but not otherwise," 
 is constitutional. State v. Bartleii, N. S. viii. 184. 
 
 86. Where a statute authorizes but does not compel a, party indicted to 
 become a witness in his own behalf, it is improper for the prosecution to 
 comment to the jury on the prisoner's refusal to offer himself as a witness, 
 and the court should when requested charge that no inference was to be 
 drawn against the prisoner from his refusal. People v. l)/ler, N. S. viii. 430. 
 
 87. Testimony of defendants in criminal prosecutions, subject discussed. 
 N. S. V. 129, 705. 
 
 88. Testimony of parties in criminal prosecutions, subject discussed. N. 
 S. iv. 577. 
 
 89. A prisoner who takes the stand as a witness in his own behalf, can be 
 contradicted the same as any other witness. Fralich v. The People, N. S. xii. 
 659. 
 
 90. It is competent to show that his testimony as to being unconscious of 
 what he did while committing the crime is not true. Id. 
 
 XII. Competency of Jueors. 
 
 91. Jurors are competent witnesses. Mauser v. Com., N. S. v. 668. 
 
 XIII. Proof of Wills. 
 
 92. A disinherited heir at law is a competent witness in support of will. 
 Sparhawk v. Sparhawk, N. S. v. 576, 
 
 93. Proof of execution of will, when subscribing witnesses do not recollect 
 circumstances thereof. Eliot v. Eliot, N. S. v. 575. 
 
 94. Executor, accepting trust, is competent subscribing witness to will, 
 under Stats, of Mass. Wyman v. Symims, N. S. v. 575. 
 
 95. Mere absence from the state of an attesting witness does not authorize 
 proof of the will by proving handwriting. Stow v. Stow, N. S. iii. 375. 
 
 96. The attesting witnesses need not be present at the signing of a will, 
 if the testator acknowledges it as his will, and requests them to sign. Sallo- 
 way V. Galloway, N. S. x. 185. 
 
 97. Upon a oaveat to a will, the executor, not a party to the proceedings in 
 the capacity of executor, is competent to testify upon his own offer, and in 
 his own behalf, as a caveatee. Schull v. Murray, N. S. x. 128. 
 
 98. Under the Act of 1867 of Illinois, the devisees under a will who were 
 defendants in a suit, are only competent witnesses of facts occurring after the 
 testator's death. Ealloway v. Galloway, N. S. x. 136. 
 
 99. A distributee who releases to an administrator all his right to what 
 may be recovered in a suit brought by the administrator, is a competent 
 witness. Forrester v. Torrenee, N. S. x. 352. 
 
 100. Executor and trustee who takes an interest in a will cannot be a 
 witness to sustain it. Davis v. Davis, Exec'r, 0. S. iii. 633. 
 
 101. Legatee under a will immediately preceding that in contest is compe- 
 tent witness against the latter. Titlow v. Titlow, N. S. vii. 319. 
 
 102. Opinions of subscribing witnesses. Id. 
 
 103. Witnesses to will.— Testator must declare to them that it is his last 
 will. Hunt V. Mootrie, 0. S. iv. 395. 
 
 104. In an issue to try the validity of a will, the beneficiaries under the 
 will being parties to the action, are competent witnesses in favor of the will 
 They are not within the exception in the statute which excludes the other 
 parties where one of the original parties to the contract or cause of action 
 IS dead. Garvin v. Williams, N. S. xi. 642. 
 
WITNESS. 1003 
 
 105. A widow, cited, but who does not appear or contest the probate of 
 her husband's will, is a competent witness for the contestants, as against the 
 objection that she is a party to the proceeding, and no formal order, dis- 
 missing her as a party, or otherwise providing for her examination, is 
 necessary. Talbot t. Talbot, N. S. i. 181. 
 
 106. To a will must be competent at the time of attestation. Frink v. Fond, 
 N. S. V. 704. 
 
 107. Impeachment of subscribing witnesses to will. iVbie to Thornlon v. 
 Thornton, N. S. vi. 358. 
 
 108. This rule is not inflexible. When the proponent of a will may prove 
 a fact to be otherwise than testified to by the subscribing witness, called by 
 himself, and impeach his credit. Thornton v. Thornton, N. S. vi. 341. 
 
 109. The petitioning nephews and nieces of an intestate are not incompe- 
 tent, under the Act of 1868 of Maryland. Jones v. Jones, N. S. xii. 192. 
 
 XIV. Of Dseds and Agreements. 
 
 110. The execution of a witnessed instrument which is offered in evidence 
 by one who is a party to it, cannot be proved without calling the attesting 
 witness, if he is living, competent and within reach of the process of the 
 court ; and this rule is not altered by the passage of a statute authorizing 
 parties to testify. Brigham v. Faltner, N, S. i. 503. 
 
 111. Contra as to witness to a deed. Frink v. Pond, N. S. v. 704. 
 
 112. Grantor in a deed with covenants for title incompetent to prove exe- 
 cution of deed. Hamilton v. Doolittle, N. S. vi. 128. 
 
 113. Is also incompetent to prove notice to a subsequent purchaser. Id. 
 
 114. Where an attesting witness has signed his name to an instrument 
 without the consent of the parties, the instrument may be proved as if there 
 was no attesting witness. Sherwood v. Pratt, N. S. xii. 255. 
 
 115. The signature of a subscribing witness is not conclusive, it is only 
 prim& 'facie evidence that he was called in by the parties, and may be con- 
 tradicted. Id. 
 
 116. And for this purpose parol testimony may be received. Id. 
 
 XV. In Contested Elections. 
 
 117. On the trial of a contested election, a witness cannot state what per- 
 sons, not parties to the record, told him subsequent to the election. Gilliland 
 et al. V. Schuyler, N. S. xii. 54. 
 
 XVI. Refusal of Wit.vess to Answek on Account of Privilege, and Who 
 AND What are Privileged, 
 
 118. A witness may waive his constitutional right of not being compelled 
 to give evidence against himself. State v. Ober, N. S. xiii. 53. 
 
 119. He waives it by becoming a witness in his own behalf, and must then 
 be subject to the tests of other witnesses. Id. 
 
 120. Privilege to decline answering — right of parties to object to question 
 to witness. Newcomb v. Griswold, N. S. ii. 57. 
 
 121. See Pbivileqed Communication. 
 
 122. Matters about which party is excused from answering under Stats. 
 of 1857 and 1858 in New Hampshire. Eaton v. Farmer, N. S. vi. 256. 
 
 123. What he may be required to state. Id. 
 
 124. When compellable to testify. —The Constitution (Art 1, ? 6) does not 
 protect a witness in a criminal prosecution against another, from being com- 
 pelled to give testimony which implicates him in a crime, when he has been 
 protected by statute against the use of such testimony on his own trial. The 
 People v.S:eUi/,^.S.i.53i. , ,. , ,, 
 
 125. That the information thus elicited facilitates the discovery of other 
 evidence by which the witness may be subsequently convicted, is an inci- 
 dental consequence against which the constitution does not guard him. Its 
 prohibition is simply against his being required to give evidence where he 
 himself is upon trial. Id. . i. t ^ 
 
 126. The refusal of a witness to answer a proper question betore a grana 
 jury, is punishable as a contempt under the statute (2 E. S., p. 534, J 1, p. 
 735, B 14) as committed in a proceeding upon an indictment. Id. 
 
 127. Telegraphic communications are not privileged, and a telegrapnio 
 operator is bound to testify to the contents of a message, if it be material ana 
 relevant. The State v, Litchfield, N. S. x. 376. 
 
1004 WITNESS. 
 
 128. Every person, whatever his office or dignity, is bound to appear and 
 testify in a court of justice when required by legal process, unless he has a 
 lawful excuse. Thompson v. German Valley E. Co., N. S. xi. 128. 
 
 129. An order to testify is an unusual, if not an uoheard-of practice, and 
 ought not to be made against the executive of a state. Id. 
 
 130. The governor will not be compelled to produce in court any paper, 
 which in his opinion his official duty requires him to withhold. Id. 
 
 131. If a governor refuses to appear and testify, his liability to respond in_ 
 damages to the party injured, is the same as any other citizen.^ Id. 
 
 182. Judgment free from error will not be reversed, because jury may have 
 drawn inferences from refusal of witnesses to answer on account of privilege. 
 Murphy v. Tripp, N. S. v. 512. ,.■,■■ 
 
 133. It is not the nature of the punishment but of the oflFence which deter- 
 mines its infamous character so as to disqualify a witness convicted of it, and 
 embezzlement is not in Pennsylvania such a crime. Schuylkill Co. v. Copley, 
 N. S. X. 783. 
 
 XVII. Contempt of Codkt fob not Answerino. 
 
 134. The appellate court, before which the propriety of a commitment for 
 contempt is brought by certiorari, or even collaterally on habeas corpus, is bound 
 to discharge the prisoner where the act charged as criminal is necessarily 
 innocent or jusliiiable, or where it is the mere assertion of a constitutional 
 right. The People v. Kelly, N. S. il 534. 
 
 135. The adjudication of the court in which the alleged contempt occurred, 
 while conclusive that the parly committed the act whereof he was convicted, 
 and of its character when that might, according to the circumstances, be 
 meritorious or criminal, cannot establish as a contempt that which the law 
 entitled the party to do. Id. 
 
 136. When the refusal was reported by the grand jury to the court m the 
 presence of the witness, who did not deny but justified the same, and reiter- 
 ated the refusal, the contempt is one "in the immediate view and presence 
 of the court," and no affidavit or further evidence is requisite to a commit- 
 ment. Id. 
 
 XVIII. Testimony of Witness Voluniakilt given against himself in Ckim- 
 iNAt Cases. 
 
 137. Evidence before coroner's jury is voluntary, is not given under a 
 threat, &c., and may be given in evidence in the trial against the witness for 
 the crime. Hendrickson v. The People, 0. S. ii. 531. 
 
 XIX. Dying Deolaeations. 
 
 138. Copy of minutes of evidence of deceased witness may be read. 
 Witcher v. Morey, N. S. vii. 187. 
 
 139. Dying declarations, inadmissible in a civil suit for the injury. Dailey 
 Y.E.E. Co., N. S. V. 58. 
 
 XX. Evidence by Commission. 
 
 140. Evidence by commission admissible, though witness be dead. Law- 
 rence V. Finch, N. S. v. 58. 
 
 XXI. Experts and Quasi-experts. 
 
 141. It is not necessary that a witness, in speaking of the value of a thing, 
 should only speak from observation, he may be made acquainted with its con- 
 dition by the testimony of others, and then testify, if he is conversant with 
 property of that nature. Orr v. Mayor of New York, N. S. xii. 403. 
 
 142. To be competent to prove handwriting must have such knowledge of 
 it as to form an opinion when he sees it. Ouyette v. Town of Bolton, N. S. xiii. 
 777. 
 
 143. Farmers competent to fix price of land in their neighborhood. Eobert- 
 son V. Knapp, N. S. vi. 256. 
 
 144. So, if one has changed occupation to that of mechanic. Id. 
 
 145. When witnesses are called to give testimony upon questions of skill. Id. 
 
 146. Testimony of persons, other than experts. Bonctt v. StoweU, N. S. 318. 
 
 147. A witness whose knowledge of the custom as to the use of certain 
 articles, is acquired in similar manufactories in other localities, is competent 
 to testify as to the usage of the business. Ins. Co. v. McLaughlin, N. S. vi. 374. 
 
 148. The opinion of a witness as to waste committed by a tenant for life, is 
 not admissible in evidence. Woodward v. Gates, N. S. viii. 319. 
 
WITNESS. 1005 
 
 149. Where a witness was introduced as an expert in' judging of tlie gen- 
 uineness of signatures, it was held to be proper for the party calling him to 
 inquire of him as to his residence, his occupation, and the lengtli of time he 
 had been engaged in business that would qualify him to judge of signatures, 
 and also to his actual experience in such matters as a witness in court. Tyler 
 V. Todd, N. S. X. 627. 
 
 150. Upon the question whether a signature is genuine or forged it is the 
 practice in this state to allow the disputed signature to be compared in court 
 with others that are genuine. Id. 
 
 151. But for this purpose they must not only be genuine, but must be ad- 
 mitted or proved to be such before they can be used, and a signature of 
 which the genuineness is not thus established cannot be used eyen in a cross- 
 examination of a witness to test his accuracy as to another signature. Id. 
 
 152. An expert ought not to be permitted to give an opinion as to the gen- 
 uineness of a signature upon a comparison of signatures not before the court. 
 Id. 
 
 153. Where an expert testified as to his opinion from a comparison of sig- 
 natures made out of court, it was held that the opposing party had a right to 
 object to the evidence, but, not taking that objection, had no right to require 
 the production of the signatures so examined. Id. 
 
 154. Opinions not of experts sometimes admissible from necessity. fVltittier 
 V. Franklin, N. S. v. 704. 
 
 155. Opinion as to conduct of a horse at the time of an accident admitted. 
 Id. 
 
 156. If a medical witness, on cross-examination, has identified certain 
 medical advertisements as his, they may be read to the jury, as a portion of 
 the paper in which they are contained cannot be laid before the jury. Com- 
 monwealih v. Sersey, N. S. i. 178. 
 
 157. Any witness may testify, that a person was intoxicated, or under the 
 influence of intoxicating liquor. State v. Pike, N. S. xi. 233. 
 
 lo8. The opinion of a witness, who is not an expert, as to the sanity of a 
 resT)ondent, is incompetent, although formed from observation of the respond- 
 ent's appearance and conduct. Id. 
 
 159. The testimony of a physician is admissible although his knowledge is 
 derived from study alone. Taylor v. Grand Trunk R., N. S. viii. 571. 
 
 160. Whether a witness offered as an expert has the legal qualifications to 
 entitle him to testify, is a question of fact to be decided by the court, and is 
 not subject to exception. Dole v. Johnson, N. S. xi. 663. 
 
 161. The opinion of a witness not an expert is inadmissible, and whether 
 an expert or not is a fact for the judge who tries the cause. Taylor v. Roger 
 Williams Ins. Co., N. S. xi. 722. 
 
 162. May give his "understanding" or "impression" derived from mem- 
 ory but not from inference. Kingsbury v. Moses, N. S. iv. 439. 
 
 163. The rule is not universal that a witness must state -facts and not 
 opinions. Town of Cavendish v. Troy, N. S. viii. 639. 
 
 164. Qpinions of witnesses, to be competent evidence, must be such as 
 amount in some degree to knowledge of existing facts. Harpending v. Shoe- 
 maker, N. S. ii. 248. ^ ^ , , , 
 
 165. Although, as a general rule, opinions of witnesses are to be excluded, 
 except upon questions of science and skill as to which they have been spe- 
 cially instructed or educated, yet witnesses may give their opinion upon ques- 
 tions of value, and as to the amount of damages a party has sustained, where 
 the damage consists in an injury to or destruction of property. Nellis v. 
 McCarn, N. S. i. 310. 
 
 XXII. Pkoop of Valtte op Goons. ...... 
 
 166 Where a number of articles are sold together, opinions of witnesses 
 will not be received as to value of some in order to fix the value of others 
 in action for the conversion of the latter. Wells v. Kelsey, N. S. u., 631. 
 
 XXIII. Of HnsBANDS and Wives. , , -x r i • j 
 
 167 When is the widow of decedent competent witness for claimants 
 against estate of decedent. Sloher's Admr. v. McCarter, 0. S. iv. 689. 
 
 168 In a suit by husband and wife, for the loss of merchandise of the wife 
 before marriage, she is not a competent witness for the plaintiffs. Smiih and 
 Wife V. Boston and Maine R. R., N. S. iii. 127. 
 
1006 WILL— WRIT OP PROHIBITION. 
 
 169. Wife iacompetent when husband's interests are directly involved, 
 though not a party. Young v. Gilman, N. S. vi. 380. 
 
 170. The wife of a minor's next friend is a competent witness for the ad- 
 ministrator who has been substituted after suit brought by the next friend. 
 Taylor v. Grand Trunk R. R., N. S. viii. 571. 
 
 171. Wife competent witness in her own behalf in action against husband 
 and wife for personal tort committed by wife alone. Hooper v. Hooper, N. S. 
 V. 64. 
 
 172. Married woman party to action with husband, may be examined as 
 a witness in her own behalf in New York. Id. 
 
 173. On trial of husband for attempt to poison wife, the latter is incompe- 
 tent witness. People v. Northrup, N. S. vii. 636. 
 
 174. Wife may be compelled to be witness as to matters affecting only her 
 own interest. Kinney v. Metier, N. S. vii. 699. 
 
 175. Nor is a husband or wife excluded from testifying for or against one 
 another, unless the testimony would lead to a violation of marital confidence. 
 Clements v. Marston, N. S. xii. 536. 
 
 176. Conversations between a husband and third persons overheard by the 
 ' wife, would not ordinarily come within this exception. Id. 
 
 177. And a wife who acts as her husband's agent in a matter requiring no 
 special confidence, may state the facts she learned in the course of the agency. 
 Id. 
 
 178. A wife is a competent witness against her husband in the trial of an 
 indictment for procuring her miscarriage. State of Maine v. Dyer, N. S. xi. 592. 
 
 179. A wife is a witness as to the physical condition of her husband after 
 an injury, and his statements of suffering pain involve no violation of mari- 
 tal confidence. Stack v. Portsmouth, N. S. xii. 662. 
 
 180. A wife being empowered by statute to sell to her husband a mortgage 
 which is her separate property, must be held a competent witness for her 
 husband to show i.hat such mortgage was free from usury. Sage v. Wright, 
 N. S. xiii. 720. 
 
 181. The statute of Indiana has not changed the rule that husband and 
 wife are incompetent witnesses for or against each other. Stanley v. Stanton, 
 N. S. xii. 408. 
 
 182. In libel to annul marriage, parties are competent witnesses. Foss v. 
 Foss, N. S. vi. 380. 
 
 183. Statute making husband and wife witnesses for each other only con- 
 fers a privilege, which party may or may not assert. Knowles v. People, N. S. 
 vi. 636. 
 
 184. Inferences against husband for failure to call wife. Id. 
 XXIV. Record Evidence. 
 
 185. The record is the best evidence that witness has been convicted of 
 felony. Rathbun v. Rosa, N. S. vi. 128. 
 
 WORDS. 
 
 1. Construction of. — " Issue." — " Dying without issue." See Kay v. Scales, 
 0. S. ix. 285. 
 
 2. " Purchase." See Durando v. Durando, 0. S. ix. 630. 
 
 3. "Natural." See Barns v. Allen, 0. S. ix. 747. 
 
 4. See Will, 192, 203, 207, 226, 231, and 276. 
 
 WORKMAN. See Master and Servant. 
 
 WORLDLY EMPLOYMENT. See Sunday. 
 
 WRIT OF ENTRY. 
 
 After verdict for defendant in a writ of entry, error will not lie on the 
 ground that there are no sufficient means of ascertaining accurately the 
 land described in the verdict. SUloway v. Hale, N. S. iv. 118. 
 
 WRIT OF PROHIBITION. 
 
 The writ of prohibition does not issue to correct errors or irregularities in 
 administering justice by inferior courts, but to prevent courts from going 
 beyond their jurisdiction in the exercise of judicial power in matters over 
 which they have no cognizance. The People ex rel. Sronson v. Marine Court of 
 New York, N. S. i. 699. 
 
LIST OF ABBREVIATIONS 
 
 USED IN THE TABLES OF CASES. 
 
 Abb. 
 
 Abb. Ct. App. Dec. 
 
 Abb. Pr. 
 
 Abb. Pr. N. S. 
 
 Adm. & Ecc. 
 
 Ala. ) 
 
 Ala. N. S. V 
 
 Allen 
 Ark. 
 
 Abbott's Reports United States District Court, New York. 
 
 Abbott's Court of Appeals Decisions, New Turk. 
 
 Abbott's Pi-actice Reports, New York. 
 
 Abbott's Practice Reports, New Series, New York. 
 
 Admiralty & Ecclesiastical Reports (English). 
 
 Alabama State Reports. 
 
 [Tiie numbering of these reports is consecutive, although vol. xxii. and those 
 
 subsequent are sometimes styled " Now Series."] 
 Allen's Reports of Supreme Court, Massachusetts. 
 Arkansas fState Reports. 
 
 Bank. Reg. 
 Barb. 
 Beaa. \ 
 
 y) 
 
 Benedict 
 
 B. &S. 
 
 Bis. > 
 
 Biasellj 
 
 Black 
 
 Blatch. 
 
 B. L. J. N. S. 
 
 B. Monroe 
 
 Bond 
 
 B08W. 
 
 Bradford 
 Bush 
 
 National Bankruptcy Register. 
 
 Barbour's Supreme Court Reports, New York, 
 
 Beasley's Reports, Court of Chancery New Jersey. 
 
 Beavan's Reports, Rolls Court (English). 
 
 Benedict's Reports, United States District Court, New York. —- 
 
 Best & Smith's Reports, Queen's Bench, 
 
 Bissell's Reports of the United States Seventh Circuit Court. ) 
 
 Black's Reports of Supreme Court of United States. 
 
 Blatchford's Reports, United States Second Circuit Court, 
 
 Bankruptcy Law Journal, New Series (English). 
 
 B. Monroe's Reports, Kentucky Court *f Appeals. 
 
 Bond's Reports, United States District Court of Ohio. 
 
 Bosworth's Reports, Superior Court of City and County of New York. 
 
 Bradford's Surrogate Reports, New York. 
 
 Bush's Reports, Kentucky Court of Appeals. 
 
 Cal. 
 
 C.B. 
 
 C. B N. S. 
 
 C. E. Green 
 
 Cold. 
 
 Col. 
 
 Com. L. Rep. 
 
 Com. B. 
 
 Conn. 
 
 Cooley 
 
 Cox Cr. Caa. 
 
 GartiB 
 
 Cashing 
 
 Daly 
 
 Deady 
 
 De G., M. & G. 1 
 
 DeG, Macu. &G./ 
 
 Dill. 
 
 Disney 
 
 Drew. "I 
 
 Drewry / 
 
 California State Reports. 
 
 Casey's Reports, Supreme CJoiirt of Pennsylvania. 
 
 Common Bench Reports, or Manning, Granger &. Scott's Reports (English). 
 
 Common Bench Reports, New Series. 
 
 C. E. Green's Reports. Court of Chancery, New Jersey. 
 
 Coldwell's Tennessee Reports. 
 
 Reports of Supreme Court of the Territory of Colorado. 
 
 Common Law Reports (English). 
 
 Commrm Bench Reports, New Series (English). 
 
 Connecticut State Reports. 
 
 Cooley's Reports, Supreme Court, Michigan. 
 
 Cox's Criminal Cases (English). 
 
 Curtis's Reports, United States First District Court. 
 
 Cushing's Reports, Supreme Judicial Court, Massachusetts. 
 
 Daly's Reports, Court of Common Pleas, City and County of New York. 
 Deady's Reports, United States District Court of Oregon. 
 De Gex., Maonaghten & Gordon's Reports (English). . 
 
 Dillon's Reports, United States Eighth Circuit Court. 
 Disney's Reports, Superior Court of Cincinnati. 
 Drewry's Reports, Chancery (English). 
 
 (1007) 
 
1008 
 
 LIST OP ABBEEVIATIONS USED 
 
 Butcher 
 Buvall 
 
 Butcher's Reports, New Jersey. 
 Buvall's Reports, Kentucky. 
 
 E. &B. 
 
 E. C. L. K. 
 
 E. D. Smith 
 
 E. P Smith 
 
 Eccle Adm. \ 
 
 Eccl. & Adui. Kep. j 
 
 Ell. & Bl. 
 
 Ell. & Ell. 
 
 Exch. 
 
 Ellis & Blackburn's Keports, K, B. (English). 
 
 English Commun Law Beports. 
 
 E. V. Smith's Eepprtfl, Court of Common Pleas, City and County of New York, 
 
 E. P. Smith's Beports, New York State Court of Appeals. 
 
 Ecclesiastical und Admiralty Beports. 
 
 Ellis & Blackburn's Reports, Queen's Bench. 
 Ellis & Ellis's Beports, Queen's Bench. 
 Excliequer Eeporta^ 
 
 F. &r 
 
 Fisher Pat. Cas. 
 
 Ga. > 
 
 Geo./ 
 
 Grant 
 
 G. Greene 
 
 Grat. 
 
 Gray 
 
 H. L. Cos.* 
 
 H. &C. 
 
 H. & Mill. 
 
 n. &N. 
 
 H. & N. N. S. 
 
 Hand 
 
 Handy 
 
 Hare 
 
 Head 
 
 Heiskell 
 
 Hoff. 
 
 Houston 
 
 How. 
 
 111. 
 
 Ind. 
 
 Int. Rev. Dec. 
 
 lut. K. Bee. 
 
 Iowa 
 
 Ir. Ch. 
 
 Irish Com. Law 
 
 Jones (N. C.) 
 Johns. & H. 
 Jurist ) 
 Jur, f 
 Jur, N. S. 
 
 Kans. 
 
 K. & J. ■ I " 
 
 Kay & Johns./ 
 
 Kcrnaa 
 
 Keyea 
 
 La. Ann. 
 
 Lans. 
 
 L. J. Ad. C. 
 
 L.J. 
 
 L. J. Ch. 
 
 L. J. C. P. (Eng.) 
 
 L. J. E. Ch. 
 
 L. J, Ex. 
 
 L. J. M. C. [ 
 
 L. J. JIag. Cas./ 
 
 L. J. N. S. 
 
 L. J. N. S. Exch. 
 
 Law Jour. N. S. Exch. 
 
 L. J. Prob. & Mat. 
 
 Law J. N. S. Q. B. 
 
 L. J. Q. B. 
 
 Law Bep. A. & E. 
 
 Law Rep. C. C. 
 
 Law Rep. Ch. ,' \ 
 
 Law Bep. Ch. App. ( 
 
 L. R. C. P. \ 
 
 Law Itep. C. P./ 
 
 Law Rep. Er[, 
 
 L,iw Rep. Ex. 
 
 Foster & Finlason's Beports. 
 Fisher's Patent Cases. 
 
 Georgia State Reports. 
 
 Grant's Reports, Supreme Court of PennsylTania. 
 
 G. Greene's Reports, Supreme Court of Iowa. 
 
 Grattan's Eeportp, Virginia Court of Appeals. 
 
 Gray's Reports, Supreme Judicial Court of MasBachusetts. 
 
 Clark & Finnelly's House of Lords Reports, New Series (English, 
 
 Hurlstone & Col tman's' Reports (English). 
 
 Hemming & Miller. Chancery Reports (English). 
 
 Hurlstone & Norman's Reports (English). 
 
 Hurlstone & Norman's Reports, New yeriea. 
 
 Hand's Reports,' New York State Court of Appeals. 
 
 Handy's Reports, Superior Court of Cincinnati. 
 
 Hare's lieporta, Chancery (English). 
 
 Head's Reports, Supremo Court of Tennessee. 
 
 Heiskell's Reports, Supreme Court of Tennespee. 
 
 Hoffman's Reports, United States District Court of California. 
 
 Houston's Reports, Delaware. 
 
 Howard's Reports, ^upreme Court of United States. 
 
 Hlinois State Reports. 
 Indiana State Reports. 
 Internal Revenue Decisions. 
 Internal Revenue Record. 
 Iowa State Reports. 
 Irish Chancery Reports. 
 Irish Cummou Law Reports. 
 
 Jones's Law Reports. North Carolina. 
 Johnson & Heinming'a Reports (English). 
 The Jurist Reports in all the Courts (English). 
 
 Jurist, New Series, 
 
 Kansas State Reports. 
 . Kay & Johnson's Eeijorts (English). — 
 
 Kernan's Reports, Court of Appeals, New York. 
 Keyes's Reports, Court of Appeals, New York. 
 
 Louisiana Annual Reports. 
 
 Lansing's Reports, Supreme Court of New York. 
 
 Law Journal Admiralty Cases. 
 
 Law Journal Reports (English). 
 
 Law Journal Chancery Reports (English). 
 
 Law Jom-nal Common Pleas Reports. 
 
 Law Journal Reports, Exchequer Chamber Cases. 
 
 Law Journal Reports, Exchequer. 
 
 Law Journal Beports, Magistrates' Cases (English). 
 
 Law Journal Reports, New Series (Enn-lish) 
 I Law Journal, New Series, Court of Exchequer. 
 
 Law Journal Reports. Probate and Mntrimomal (English). 
 
 Law Journal Reports, New Series, Queen's Bench. 
 
 Law Journal Reports, Queen't, Bench. 
 
 Law Reports. AiJmiralty & Ecclesiastical. ~^ 
 
 Law Reports, Crown Cases Reserved. 
 
 Law Reports, Chancery Appeal Cases. 
 
 Law Reports, Common Pleas. 
 
 Law Reports, Equity Cases. 
 Law Reports, Exchequer Cases. 
 
IN THE TABLES OF CASES. 
 
 1009 
 
 T-nw Bep, H. L. Law Reports, English & Irish Appeal Cases, House of Lorda. 
 
 Liiw Itcp. 11. L. Sc. Law ilt'pnrts, Scotch & Divorce Appeal Cases, House of Lords. 
 
 L;i\v Rlp- p. C. Lmw Kepoits, I'livy Council Appeal Cases. 
 
 Law Hep. P. & D. Law Iteports, Probate & Divorce. 
 
 Law Rep. Q. B. Law Reports, Queen's Bench Cases. 
 
 L. T. (C. B.) Law Times, Common Bench (English). 
 
 Law Times. Law Times Reports (English). 
 
 Law Times, N. S. Law Tiuu-s Reports, Now Sex'ies. 
 
 L. & C. C. C. Leigh & Cave's Crown Cases. 
 
 Low. I Lowell's Decisions United States District Court of Massachusetts, 
 
 Lowell/ 
 
 Mass. Massachusetts? State Reports. 
 
 BlcAlUster McAllister's Reports, United States District Court of California. 
 
 McCirter McCarter's Chancery Reports, New Jersey. 
 
 McCook BlcCook's Reports, Supreme Court of Ohio (Ohio State Reports). 
 
 McLean McLean's Reports, United States Seventh Circuit Court. 
 
 Md. Maryland Stjite Reports. 
 
 Me. Maine State Reports. 
 
 3Ict. (Ky.) * Metcairs Reports, Kentucky Court of Appeals. 
 
 Mich. Michigan Stato Reports. 
 
 Mi, > Mississippi State Reports. 
 
 Miss.J 
 
 Mo. Missouri State Reports. 
 
 M&ore Moore's Reports, Common Pleas (English). 
 
 Moore Priv. C. 0. Moore's Privy Council Cases (English). 
 
 Morris Morris's Reports, Supremo Court of Iowa. 
 
 N. C, North Carolina State Keports. 
 
 N. H. I^ew Hampshire State. Reports. 
 
 Neb. Nebraska State Keports. 
 
 New K. C. P. New Reports by Bosanquet & Puller, Common Pleaa. 
 
 X. S. New Series (American Law Register). 
 
 N J. Eq. New Jersey Equity Reports. 
 
 New Jersey New Jersey Reports. 
 
 Newberry Adm. Newberry's Reports, United States District Court, Michigan. 
 
 New Rep. New Keports, in all the Courts (English). 
 
 N. T. Leg. Obs. New York Legal Observer. 
 
 Ohio St. 
 Oregon 
 O. S. 
 
 Ohio State Reports. 
 
 Oregon State Reports. 
 
 Old Series (American Law Register). 
 
 Penna. St. 
 Phila. 
 
 Pittsburgh) 
 Puts. ]■ 
 
 Porter 
 Porter (Ind.) 
 
 Q. B. C. L. 1 
 
 Ad. &. El. N. S. or > 
 Q. B. N. S. ) 
 
 R T. 
 Red. 
 
 Snrrog. C. 
 
 Rich. Eq. ) 
 Rich. Eq. R.) 
 Rich. Eq. Gas. 
 ];:ch. Law. 
 Kob. Adm. Caa. 
 Robertson 
 
 S. 0. L. R. 
 
 Selden 
 
 Sickels 
 
 Sm. & Giff. 
 
 Smith (N.T.) 
 
 Sneed 
 
 Sprague 
 
 Stock. 
 
 Swan 
 
 Taunt. 
 Texaa 
 Tiff. 
 
 Verm. 
 Vroom 
 
 64 
 
 Pennsylvania State Reports. 
 Philadelphia Reports. 
 Pittsburgh Reports. 
 
 Porter's Reports, Supreme Court, Alabama. 
 Porter's Reports, Supreme Court, Indiana. 
 
 Queen's Bench Common Law Reports 
 (AdolphuB and Ellis Reports, New Series). 
 
 Rhode Island State Report". 
 Redfield's Surrogate Ca=es, New York. 
 Richardson's Equity Reports, South Carolina. 
 
 Richardson's Equity Cases, South Carolina. 
 Richardson's Law Keports, South Carolina. 
 Robinson's (Wm.) Admiralty Cases. 
 Robertson's Reports, Superior Court, New York City. 
 
 Select Cases, Law Reports. 
 
 Seldcn's Reports, New York Court of Appeals. 
 
 Sickels'B Reports, Commission of Appeals, New York. 
 
 Smale & Giffard's Reports (English). , ,^, ^ _ , . 
 
 E P Smith, New York Court of Appeals (State Reports). 
 
 Sneed's Reports, Supreme Court of Tennessee. 
 
 Sprague's Reports, United States District Court of Massachusetts. 
 
 Stockton's Reports, Court of Chancery, New Jersey. 
 
 Swan's Reports, Supreme Court of Tennessee. 
 
 Taunton's Rpports. Rolls (English). 
 
 iSy^BteifortBTcourt of Appeals, New York (State Keports). 
 
 vrrJIJpm-tX'emo Court and Coavt of Appeals, New Jersey. 
 
1010 LIST OF ABBKEVIATIONS USED. 
 
 W. R. Weekly Reporter, all the Courts (English). 
 
 "W. E. Q. B, 'Weekly Reporter, Queen's Bench. 
 
 Wall. Wallace's Reports, Supreme Court of the United States. 
 
 Wall. Jr. Wallace Jr.'s Reports, Supreme Court of the United States. 
 
 West. Jur. Western Jurist, Des Moipes, Iowa. 
 
 Wis. Wisconsin State Reports. 
 
 Wood Wood's Reports, United States Fifth Circuit Court. 
 
 Wr. Wright's Reports, Pennsylvania Supreme Court. 
 
 Zah, Zahrislde'a Reports, New Jersey. 
 
TABLE OF CASES, 
 
 Reported in full in the 9 Volumes of the Old Series and the first 14 Volumes of the 
 
 New Series of the AMERICAN LAW REGISTER, with a Reference 
 
 to the State or other Reports where they are also reported. 
 
 D'Aere no other refenims t» given (AaaTHE Law Register, the case is not reported elsewhere. 
 
 Abadam v. Abadam, N. S. iii. 690. 10 Law 
 
 Times N. S. 53. 
 Abbe, In re, N. S. vii. 824. 2 Bank. Reg. 
 
 26. 
 Abell f. Howe, N. S. xi. Ui. 43 Verm. 403. 
 Adams <. Adams, N S. xii. 236. 51 N. H. 
 
 3S8. 
 Adams Ex. Co. c. Reno, N. S. xi. 750. 48 
 
 JIo. 264. 
 Adams v. Hedgpeth, 0. S. vii. 60. 5 Jones 
 
 (X. C.) 327. 
 Adrianee v. Lagrave, N. S. xlv. 295. 14 
 
 Sicltels 110. 
 Agnew V. Ins. Co., 0. S. vii. 168. 3 Philada. 
 
 193 ; s. c. 34 Penna. St. 96. 
 Ah Fong, In re, N. S. xiii. 701. 
 Akeriy v. Ailas, N S. viii. 229. 1 Abb. 284. 
 Akerly v. Vilas, N. S. viii. 558. 24 Wis. 166. 
 Albert €. Baltimore, 0. S. i. 282. 2 Md. 159. 
 Allen c. Conrad, N. S. vi. 23. 51 Penna. St. ! 
 
 487. 
 Allen V. Jay. N S. xii. 481. 60 Maine 124. 
 Allen V. Newberry, 0. S. vii. 436. 21 How. 
 
 244. 
 Allen ti. Peters, 0. S. viii. 426. 4 Philada. 
 
 78. 
 Allen o. Euseell, N. S. iii. 361. 
 Allen V Schuohardt, N. S. i. 13. s. c. 1 Wall. 
 
 359. 
 Allen's Heirs v. Vint, 0. S. ii. 712. • 
 Alexander, Ex parte, 0. S. ii. 44. 
 Alexander, In r£, 'N. S. viii. 423. 3 Bank. 
 
 Reg. 6. 
 Alter's Appeal, N. S. x. 242. 67 Penna. St. 
 
 341. » 
 
 Altructer v. Hudspn River Railroad Co., 
 
 S. V. 309. 2 E D. Smith (N. Y ) 151. 
 Ambler r. State Bank, 0. S. viii. 393. 12 
 
 Rich. Law 51 S. 
 American Ex. Co, n. Dunlevy. N. S. liL 266. 
 
 21 Ind. 4. 
 American Express Co. v. Fletcher. N. S. vi. 
 
 21. 23 Ind. 492. 
 American Pin Co. u. Oakville Co., 0. S. iii. 
 
 r',6. .■» Blateh. 190 
 American Transportation Co. r. Moore, 0. S. 
 
 vii, 15, 3i>2. 5 Mich. 368. 
 
 Amey v. Allegheny City, 0. S. ix. 338. 24 
 
 How. 364. 
 Amory v. Amory, N. S. xii. 38, 585. 3 Bis- 
 
 sell 266. 
 Amperso v. Burdeno, N. S. v. 275. 14 Mich. 91. 
 Amsinck v. Harris, N. S. vi. 100. 
 Anderson v. Alexander, 0. S. vii. 173. 
 Angler ti. Angler, N. S. ix. 335. 63 Penna. 
 
 St. 450. 
 Angler, In re, N. S. x. 190. 4 Bank. Reg. 
 
 lt)9. 
 Anspaoh v. Thompson, N. S. iv. 362. 
 Appleby v. Meyers, N. S. vi. 112 ; Law Rep. 
 
 1 C. P. 614; s.c. 2 Id. 660. 
 Appold'fi Est., N. S. vii. 624. 1 Bank. Reg. 
 
 178. 
 Arbon v. Fuasell, N. S. ii. 99. 7'Law Times 
 
 N. S. 28.3. 
 Ashbrook t). Golden Gate, 0. S. v. 148. 1 
 
 Newberry 296. 
 Aehford u. Ewing, 0. S. iv. 294. 25 Penna. 
 
 St. 213. 
 Ashmore r. Penna. Towing Co., 0. S. ix. 721. 
 
 4 Dutch. 180. 
 Aspden v. Aspden, 0. S. i. 335. 14 How. 25. 
 Association for Disabled Firemen v, Wood, 
 
 0. S. ix. 482. 39 Penna. St. 73. 
 Atkins ». Fibre Disint. Co. N. S. x. 389. 7 
 
 Blatch. 555. 
 Atlanta, The, N. S. iii. 675. 2 Sprague 251. 
 Atlantic Bank v. Merchants' Bank, 0. S. ix. 
 
 241. 10 Gray 532. 
 Att. Gen. w. Beverley, 0. S. v. 506. 6 DeG., 
 
 M. & G- 255 ; s. c. 6 H. L. Cas. 310. 
 Att. Gen. v, Hudson River Railroad Co., 0. 
 
 S. v. 126 1 Stock. 526. 
 Att. Gen. ^. Patterson, 0. S. v. 60. 1 Stock. 
 
 624. 
 Atwater v. Roelofson, 0. S. iv. 549. 2 
 
 Handy 19. 
 Atwood 1). Cornwall, N. S. xiii. 230. 28 
 
 Mich. 336. 
 Atwood i>. Holcomb, N. S. xii. 715 39 Conn. 
 
 270. 
 Audenreid v. Randall, N. S. vii. 659. 
 Austan i>. Manchester Railroad, 0, S. i 114. 
 
 70 B. C. L. R. 454. 
 
 (1011) 
 
1012 
 
 TABLE OF CASES 
 
 Austin i>. Eunyard, K. S. v. 241. 118 E. C. 
 
 li. K. 687. 
 Austin V. Railroad Co., N. S. xii. 415. 45 
 
 Verm. 215. 
 Averj V. Doane, 0. S. iii. 229. 1 Bissell 
 
 64. 
 
 Badgely «. The Juniata Paton, 0. S. i. 262. 
 
 1 Bissell 15. 
 
 Bailey v. Berry, N. S. viii. 270. 
 Bainbridge v. Sherlock, N. S. vii. 720. 20 
 
 Ind. 364. 
 Baker v. City of Portland, N. S. i. 559. 
 
 58 Maine 199. 
 Baker v. Ins. Co., N. S. vii. 628. 
 Baldwin V. Hale, N. S. iii. 462. 1 Wall. 223. 
 Baldwin v. Turnpike Co., N. S. xiii. 423. 
 
 40 Conn. 238. 
 Ballard v. Winter, N. S. xii. 759. 39 Conn. 
 
 179. 
 Ballbeok v. Donaldson, 0. S. vi. 148. 2 
 
 Grant 459; 2 Phila. 163. 
 Baltimore Ins. Co. v. Loncy, N. S. iii. 051. 
 
 20 Md. 20. 
 Baltimore, Mayor of, v. Connellsville and 
 
 South Penna. Railroad Co., N. S. iv. 750. 
 
 See 3 Pittsburgh 20. 
 Bank v. Adams Express Co., N. S. xiv. 30. 
 Bank v. Bank, 0. S. ix. 241. 10 Gray 532. 
 Bank v. Banky 0. S. ix. 620. 39 Penna. St. 
 
 92. 
 Bank v. Bank, N. S. x. 774. 2 Bissell 527. 
 Bank v. Eliot Bank, 0. S. v. 711. 
 Bank v. Express Co., N. S. xiv. 30. 
 Bank v: Freedmen's Trust Co. N. S. a. 786 
 
 2 Dillon 11. 
 
 Bank v. Hoge, N. S. vi. 227. 8 Tiff. 65. 
 
 Bank v. Hurlburt, 0. S. i. 219. 
 
 Bank v. Ins. Co., N. S. vii. 467. 57 Penna. 
 
 St. 388. 
 Bank v. Keyser, N. S. v. 75. 2 Duvall 169. 
 Bank v. Lyon, 0. S. ix. 620. 38 Penna. St. 
 
 98. 
 B-iuk V. Nat. State Bank, N. S. xiv. 2S1. 
 
 10 Bush 367. 
 Bank v. New Haven Railroad Co., 0. S. iv. 
 
 717. 3 Kernan 599. 
 Bank v. New Milford, N. S. .^.. 572. 36 Conn. 
 
 93. 
 Bank v. Ober, N. S. i. 36; 1 Abb. 503; i 
 
 Bank. Reg. 156. 
 Bank v. Railroad Co.. N. S. i. 210. 30 Conn. 
 
 231. 
 Bank v. Stone, 0. S. i. 339. 2 R. I, 129. 
 Bank v. Varnum, N. S. xi. 407 ; 4 Sickels 
 
 269 ; s. c. 3 Lans. 86. 
 Bank v. Wetherald, N. S. vii. 352. 9 Tiff. 
 
 335 i s. c. 34 Barb. 323. 
 Bank of Pittsburgh's Appeal, 0. S. vi. 310. 
 
 29 Penna. St. 330. 
 Banks D. Werts, 0. S. viii. 423. 13 Ind. 203. 
 Bannon u Baltimore &, Ohio Railroad Co., 
 
 N. S. V 470. 24 Md. 108. 
 Barclay !>. Clyde, 0. S. v. 312. 2 E. D Smith 
 
 (N. Y.l 95. 
 Baringer v, Stiver, N. S. iv. 559. 49 Penna 
 
 St. 129. 
 Barker r. Midland Railrcid Co., 0. S. v. 57. 
 
 66 E. C. L. R. 46. 
 
 Barlow v. Lambert, 0. S. v. 171. • 28 Ala. 
 
 N. S. 704. 
 Barnard v. Monnot, N. S. vi. 209. 3 Keyes 
 
 203 ; 1 Abb. Ct. App. Dec. Ill ; 33 How. 
 
 440 ; s. c. 34 Barb. 90. 
 Barnes v. Gregory, 0. S. vii. 678. 1 Head 
 
 230. 
 Barnes v. Hathorn, N. S. vii. 81. 64 Maine 
 
 124. 
 Barney v. Globe Bank, N. S. ii. 221. 5 Blatoh. 
 
 107. 
 Barnhizel v. Eerrel, N. S. xiv. 677. 47 Ind. 
 
 335. 
 Barns v. Allen, 0. S. ix. 747. s. C. 25 Ind. 
 
 222. 
 Barri;. Reitz, N. S. vi. 693. 53 Penna. St. 256. 
 Bartemeyer v, Iowa, N. S. xiii. 220. 18 Wall, 
 
 129. 
 Bashford v. Shaw, 0. S. iv. 009. 4 Ohio St. 
 
 263. 
 Bassett v. Salisbury Man Co., N S. iii. 223. 
 
 43 N. H, 569, see 28 Id. 438, and 47 Id 
 
 426. 
 Baxter, In re, N. S. v. 159. 
 Baxter v. Roberts, N. S. xiii. 41. 44 Cal. 187. 
 Baxter v. Roelofson, 0. S. viii. 477. 
 Bazin v. Steamship Co., 0. S. v. 459 3 Wall. 
 
 Jr. 229. 
 Boal r. Chase, N. S. xiv. 563. 31 Mich. 490. 
 Bean i-.Amsink,N. S. xii.379. 10 Blatch, 361. 
 Ee.an v. Brookmire, N. S. x. 181. 1 Dill. 24, 
 
 151. 
 Ecardsley i'. Plankroad Co., 0. S ii. 060. 
 Becker r. Levy, S. ii. 444. 
 Eeekerkord [-ford]. In re, N. S. x. 57. 1 Dill. 
 
 45. 
 Bee V. Tho Minnie, 0. S. vi. 328. 
 Bell & Murray v. State, N. S. xiii. 752. 48 
 
 Ala. N S. 684. 
 Bell i>. Ncvin, N. S. vi. ISl. 
 Bell V. State, 0. S. i. 367, 1 Swan 42. 
 Bellis & Milligan, In re, N S. viii. 747. S 
 
 Benedict 386. 
 Belmont Bank v. Hoge, N. S. vi. 227 8 
 
 Tiff. 65 ; s. c. 7 Bos. 643. 
 Bennett v. Schooner Manton, N. S. xi. 769. 
 
 15 Int. R. Reo. 39. 
 Bennett's Case, N. S. viii. 34. 6 Phila. 472. 
 Eibb V. Pope, N. S. viii. 490. 43 Ala. K. S. 
 
 190. 
 Bigelow V, New Jersey Railroad Co., 0. S. 
 
 vi. 6. ■ 
 Billgery v. Branch, N. S. viii. 334. 19 Grat. 
 
 393. 
 Bird V. Wilmington Railroad Co., 0. S iv. 
 
 222. 8 Rich. Eq. 46. 
 Blackstone i'.' Buttermore, N. S. vii. 108. 
 
 53 Penna. St. 266. 
 Blake v. Hyde, 0. S. iv. 172. 27 Verm. 475. 
 Blakie oi Stembridge, O. S. viii. 182. 95 E. 
 
 C. L. R. 894. 
 Bloch V. Isham, N. S. vii. 8. 28 Ind. 37. 
 Bloom V. Welsh, 0. S; viii. 97. 3 Dutch. 177. 
 Bloomer u. MoQuewan, 0. S. i. 473. 14 How. 
 
 639. 
 B;o3som t>. Milwaukee & Chicago Railroad 
 
 Co , N. S. V. 218. 3 Wall. 196. 
 Bjvnn [Blimm] v. Commonwealth, N. S. s, 
 
 677. r Bush 329. 
 
BlystODO r. BIystone, N. S. vi. 203. 51 
 
 Penua. St. 373. 
 Bljth r. Waterworks Co., 0. S. iv. 570. 25 
 
 Law J. Exch. N. S. 212. 
 Boaler r. Cninmines, 0. S. i. 654. 
 Boardman's Appeal, N. S. xiii. 477. 40 
 
 Conn. 1B9. 
 Board of Missions v. MoMastor, 0. S. iv. 52(). 
 Boose V. Ohio, 0. S. v. 124. 10 Ohio St. 675. 
 Booth i>. Woodbury N. S. .'. 202. 32 Conn. 
 
 118. 
 Born V. Shaw, 0. S. vi. 236. 29 Penna. St. 
 
 2SS. 
 Borough of Fraukford t). Lennig, 0. S. i. 357. 
 
 2 Phila. 403. 
 Boston & Albany Ba'lroad Co. v. Shanly, X. 
 
 S. xii. 500. 107 Mass. 568. 
 Boswell V. Goodwin, N. S. iii. 79. 31 Conn. 
 
 74. 
 Bouroicault v. Wood, N. S. vii. 539. 2 Bis- 
 
 sell 34. 
 Bowen r. Buck, 0. S. v. 420. 28 Verm. 308. 
 Bowen v. Clark, 0. S. v. 203. 1 Bissell 128. 
 Bowen i'. Telegraph Co.. 0. S. i. 685. 10 W. 
 
 L. J. 415. 
 Bowman v. Foot, X. S. i. 352. 29 Conn. 331. 
 Bowman ii. Worthington, N. S. vi. 621. 24 
 
 Ark. 522. 
 Boyle V. Gondom, 0. S. iii. 756. 
 Bradley v. Baxter, 0. S. i. 658. 15 Barb.122. 
 Bradley ^. People, N. S. vi. 466. 4 Wall. 
 
 459. 
 Bradshaw v. Klein, N. S. vii. 505. 2 Bissell 
 
 20. 
 Brady v. Todd, 0. S. ix. 492. 99 K. C. L. 
 
 R. 592. 
 Brampton v. Beddoes, N. S. ii. 375. 106 E. 
 
 L. C. R. 53S. 
 Brandon v. Brandon, N. S. xiv. 449. 14 
 
 Kans. 342. 
 Brass v. Maitland, 0. S. v. 565. 88 E. C. L. 
 
 R. 470. 
 Braunhcrger v. Cleis, N. S. iv. 587. 
 Breasted v. Farmers' Loan Co., 0. S. ii, 358. 
 
 4 Selden 299. 
 Breitenhach v. Pungan, 0. S. i. 419. 
 Brett V. Chillas, 0. S. iii. 407. 
 Brettaugh v. Coal and Iron Co., N. S. vii. 
 
 109. 
 Brewer Brick Co. b. Brewer, X. S. xiii. 735. 
 
 62 Maine 02. 
 Bridge Co. u. Binghamton, N. S. v. 424. 3 
 
 Wall. 51. 
 Bridgeport Bank v. N. York & N. Haven 
 Railroad Co., N. S. i. 210. 30 Conn. 231. 
 Bridgman v. Hopkins, N. S. i. 168. 34 
 
 Verm. 532. 
 Briggs V. Taylor, 0. S. v. 239. 28 Verm. 
 
 180. 
 Brilliant, Schooner, v. United States, N. S. 
 
 ii. 334. 2 Black 635. 
 Britton v. Butler, N. S. xi. 293. 9 Blatoh. 
 
 456. 
 Britannia Co., x,. Parker, N. S. xiii. 153. 39 
 
 Conn. 450. 
 Bronson v. La Crosse & Milwaukee Railroad 
 
 Co., 0. S. ix. 350. 
 Brooks V. The Wm. Penn, 0. S. i. 584. 
 Brouner ». Goldsmith, N. S. i. 47. 
 
 REPORTED ]N FULL 
 
 203. 
 
 1013 
 
 Brown t. Collins, N. S. xiii. 364. 53 N. H. 
 
 442. 
 Brown v. Duchesne, 0. S. iv. 152 ; 2 Curtis 
 
 371; s. c. 19 How. 183. 
 Brown t>. Goldsmith, 0. S. v. 304. 
 Brown t.. Royal Ins. Society 0. S. viii. 235. 
 
 102 E. C. L. R. 853. 
 Brown i,. Simons, N. S. iii. 164. 44 N. H. 
 
 476. 
 Brown v. United States, N. S. xi. 172. 6 N. 
 
 & II. 171. 
 Brown v. United States, N. S. xiv. 566. 
 Brown v. Werner, N. S. xiv! 35 4. 40 Md. 
 
 15. 
 Bruce i'. Westervelt, 0. S. v. 314. 2 E. D. 
 
 Smith (N. Y.) 440. 
 Bruce v. Thompson, 0. S. iii. 237. 26 Verm. 
 
 741. 
 Bruff V. Mali, N. S. vii. 48. 9 Tiff. 200 ; 34 
 
 How. 338. 
 Bucheggor v. Schultz, N. S. v. 96. 13 Mich. 
 
 420. 
 Buell V. Bissell, 0. S. i. 411. 
 Bunco V. Gallagher, N. S. vii. 32. 6 Blatch. 
 
 481. 
 Burke v. Niles, N. S. x. 118. 
 Burns, In re, N. S. vii. 105. 6 Int. R. Rec. 
 
 182. 
 Burr .;. Burr, 0. S. iv. 558. 26 Penna. St. 
 
 284. 
 Burrows v. Gallup, N. S. vi. 84. 32 Conn. 
 
 493. 
 Burton v. Burton. N. S. iii. 425. 26 How. 
 
 474 ; s. c. 1 Keyes 369 ; 1 Abb. Ct. App. 
 
 Dec. 271. 
 Burwell c. Jackson, 0. S. iii. 279. 5 Selden 
 
 535. 
 Butcher u. London & S. W. Railroad Co., 0. 
 
 S. iii. 694. 1 Jur. N. S. 427. 
 Butler V. Roys, N. S. xi. 560. 25 Mich. 53. 
 Buttrick v. Harris, N. S. iii. 112. 1 Bissell 
 
 442. 
 Byam v. Bullard, 0. S. i. 139. 1 Curtis 100. 
 Byrne, In re, N. S. vii. 499. 1 Bank. Reg. 
 
 122. 
 
 Cadbury i). Duval, 0. S. i. 105. 
 Cadwalader v. Montgomery, 0. S. iii. 169. 
 
 24 Penna. St. 372. 
 Cahill V. Dawson, 0. S. vi. 176. 91 E. C. L. 
 
 R. 106. 
 Caldwell v. Brown, N. S. vi. 752. 53 Penna. 
 
 St. 453. 
 Camp V. Telegraph Co., 0. S. vi. 443, 734. 
 
 1 Met. (Ky.) 164. 
 Campbell v. Cabeen, 0. R. y. 683; 0. S. vi. 
 
 661. 30 Penna. St. 254. 
 Campbell v. Hooper, 0. S. v. 563. 3 Sm. & 
 
 Giff. 163. 
 Campbell, In re, N. S. vii. 100. 1 Abb. 185. 
 Campbell v. Rogers, 0. S. iv. 747. 2 Handy 
 
 110. 
 Campbell's Appeal, 0. S. vi. 751. 36 Penna. 
 
 St. 247. 
 Canal Co. v. Fisher, 0. S. iii. 423. 0. S. v. 
 
 62. 1 Stock. 667- 
 Canal Co. v. Lewis, 0. S. vi. 428. 1 Beaslcy 
 
 323. 
 Canal Co. v. Lowry, 0. S. vi. 750. 
 
lOU 
 
 TABLE OF CASES 
 
 Canal Co. v. Torrey, 0. S. vii. 611. 35 
 
 Penna. St. 143. 
 Candee v. Deere, N. S. x. 694. 54 111. 439. 
 Candler v. Tillett, G. S. Ti. 58. 22 Beav. 
 
 263. 
 Capen v. Peckham, N. S. ix. 136. 35 Conn. 
 
 88. 
 Carey v. Nagel, N. S. ix. 362. 2 Abb. 156. 
 Carlin v. Trowbridge, 0. S. vi. 740. 12 La. 
 
 Ann. 882. 
 Carney v. Shanly, N. S. xii. 500. lOT Mass. 
 
 568. 
 Carpenter v. Atherton, N. S. iv. 225. 26 
 
 Cal. 564. 
 Carpenter v. Sixth Avenue Kailroad Co., N. 
 
 S. i. 410. 
 Carry! v. Taylor, 0. S. ii. 333, 0. S. iii. 394. 
 
 24 Penna. St. 259. 
 Carson's Adm'r v. Phelps, N. S. xir. 1 00. 40 
 
 Md, 73. 
 Carter v. Howard, N. S.-vi. 411. 39 Venn. 
 
 106. 
 Case V. Case, 0. S. ii. 253. 
 Cassel V. lierron, 0. S. i. 681. 
 Castrique v. Behrens, K. S. i. 48. 107 E. C. 
 
 L. H. 709. 
 Cervantes v. United States, 0. S. iii. 746. s- c. 
 
 1 Hoff. 9. 
 Chamberlaines, In re, N. S. xiv. 688. 
 Champion v. Gordon, N. S. xii. 6. 70 Penna. 
 
 St. 474. 
 Chandler, In re, N. S. xiii. 31 0. 9 Bank. Keg. 
 
 614. 
 Chapin v. James, N. S. xiv. 214. 
 Chapman v. Devcreux, 0. S. ix. 419. 32 
 
 Term. 616. 
 Chartiers, Ac., Turnpike Co. v. Budge, N. S. 
 
 xii. 157. 72 Penna. St. 278. 
 Chase v. Cheney, N. S. x. 295. 58 111. 509. 
 Chase v. Miller, N. S. ii. 146. 41 Penna. St. 
 
 403. 
 Chase et al. v. Washburn, 0. S. i. 487. 1 
 
 Ohio St. 244. 
 Chatiield v. Wilson, 0. S. t. 528. 28 Verm. 
 
 49. 
 Chauncey U.Arnold, 0. S. ix. 608. a. u. 10 
 
 Smith (N. Y.) 330. 
 Check V. Little Miami Railroad Co., 0. S. 
 
 vii. 427. 2 Disney 237. 
 Cheesbrough v. Taylor, 0. S. ix. 435. 12 
 
 Abb. Pr. 227. 
 Chenango Bridge Co. v. Binghamton, N. S. 
 
 V. 424. 3 Wall. 51. i 
 
 Cherokee, The, N. S. iii. 289. 2 Sprague 
 
 235. 
 Chetwind, Ex parte, IT. S. iv. 298. 
 Chicago & Northwestern Railroad Co. v. 
 
 People, N. S. x. 585. 56 111. 365. 
 Chicago, City of, v. Bobbins, N. S. ii. 529. 2 
 
 Black 418. 
 Childs V. Gladding, N. S. xi. 386. 14 Int. 
 
 E. Bee. 173. 
 Childs V. Digby, 0. S. iii. 301. 24 Penna. St. 
 
 23. 
 Chillas t>. Brett, 0. S. iii. 116. 
 Chittenden v. Chittenden, 0. S. i. 538. s. c. 
 
 8 Howard 327. 
 Circassian, Steamship, N. S. xii. 291. 
 Citizens' Bank v. Obev [York, In re], N. S. a. 
 
 36. 1 Abb. 503 ; 4 Bnnk. Eeg. 156. 
 
 Citizens' Ins. Co. v. McLaughlin, N. S. vi, 
 
 Vi. 53 Penn. St. 485. 
 City of Chicago v. Bobbins, N. S. ii. 529. 2 
 
 Black 418. 
 City of Detroit ». Blakeby, N. S. ix. 670. 21 
 
 Mich. 84. 
 City of Louisville v. Brown, N. S. xii. 721. 
 City of Memphis v. Brown, N. S. xi. 629. 6 
 
 West. Jur. 485. 
 City of Philadelphia v. Soohan, 0. S. vii. 
 
 385. 3;i Penna. St. 9. 
 Clafiin V. Farmers' & Citizens' Bank, N. S. 
 
 ii. 92; 11 Smith (N. Y.) 293. s. c. 24 
 
 How. 1. 
 Clark V. Binninger, N. S. ix. 304. 38 How. 
 
 341. 
 Clark V. De.'i Moines, IS. S. vi. 146. 19 Iowa 
 
 199 
 Clark'r. Dick, N. S. ix. 739. 1 Dillon 8. 
 Clark V. Gilbert, N. S. xiii. 19. 39 Conn. 
 
 94. 
 Clark, In re, 0. S. iv. 364. 11 La. Ann. 124. 
 Clark V. Martin, N. S. i. 479. 49 Penni.,. St. 
 
 289. 
 Clark r. Kankin, N. S. vi. 368; s. c. 46 Barb. 
 
 570. 
 Clarke V. Janesville, 0. S. iv. 591. 1 Bissell 
 
 98. 
 Clarke v. Bailroad Co., N. S. xiii. 421. 
 Clarke v. Rochester, 0. S. v. 289 ; 1 3 How. 
 
 Pr. 204 ; s. 0. 14 Id. 193 ; 5 Abb. Pr. 107 ; 
 
 24 Barb. 446. 
 Cleveland v. Bocrum, 0. S. vii. 144 ; 3 Abbi 
 
 Pr. N. Y. 294; 23 Barb. 201; s. c. 27 
 
 Barb. 252; 10 Smith (N. Y.) 613. 
 Clifford II. Thomaston Ins. Co., N. S. iv. 594. 
 
 60 Maine 197. 
 Clough V. Hart, N. S. xi. 95. 8 Kans. 487. 
 Coakley v. North Penna. Kailroad Co., 0. S. 
 
 vi. 355. 
 Cool Co. »'. Sherman, 0; S. viii. 333. 30 
 
 Barb. 553. 
 Cochran v. Eldridge, N. S. v. 162. 49 Penna. 
 
 St. 365. 
 Cochran v. Jones, N. S. xiv. 222. 
 Coe r. Pennook and C, Z. & C. Kailroad Co., 
 
 0. S. vi. 27. s. c. 23 How. 117. 
 Coger V. Packet Co., N. S. xiii. 162. 37 
 
 Iowa 135. 
 Cole II. Van Kiper, N. S. vii. 478. 44 111. 58. 
 Columbia Fire Ins. Co. v. Kinyon, N. S. xiii. 
 
 674. 37 N. J. 33. 
 Colyar ii. Taylor, 0. S. ix. 428. 1 Cold. 372. 
 Commercial Bank v. Varnum, N. S. xi. 407 ; 
 
 4 Sickels 269 ; s. c. 3 Lons. 86. 
 Commins ti. The Minnie, 0. S. vi. 328. 
 Commissioners of Knox Co. ii. Aspiawall, 0. 
 
 S. ix. 347. 24 How. 376. 
 Commissioners of Tippecanoe Co. v. Rey- 
 nolds, N. S. xiii. 376. 44 Ind. 509. 
 Commonwealth v. Bank of Commeioe, 0. S. 
 
 ix. 379. 
 Commonwealth ». Common Council of Phila., 
 
 N. S. vii. 362. 
 Commonwealth ii. Cooke, 0. S. vii. 417. 
 Commonwealth v. Cronin, 0. S. iv. 465. 
 Commonwealth ti. Frazee, 0. S. v. 167. 2 
 
 PhiU. 191. 
 Comcionwealth v. Frccth, 0. S. vi. 400. 3 
 
 Phila. 105. 
 
REPOKTED IN FULL. 
 
 1015 
 
 Commonwealtli r. Harmer, N. S. v. 214. 
 Commonwealth v. Hutchinson, 0. S. iii. 113. 
 Commonwealth v. Jeandell, 0. S. vii. 615, 
 
 2 Grant 506 ; 3 Phila. 509. 
 Commonwealth v. .Tohnston, 0. S. ii. 285, 
 
 432,517. 22Penna.St. 102. 
 Commonwealth v. Jones, N. S. xiT. 374. 10 
 
 Bush 725. 
 Commonwealth v. Martin, 0. S. i. 434. 
 Commonwealth v. O'Hara, N. S. vi. 765. 3 
 
 Pittsburgh 70. 
 Commonwealth v. Reed, 0. S. viii. 228. 34 
 
 Penna. St. 275. 
 Commonwealth ». Reed, N. S. vi. 162. 2 Bush 
 
 618. 
 Commonwealth v. Shaw, 0. S. vii. 289. 1 
 
 Pittsburgh 492. 
 Commonwealth t>. Spring, 0. S. i. 424. 
 Commonwealth v. Strode; N. S. T. 435. 52 
 
 Penna. St. 181. 
 Commonwealth v. Temple, 0. S. viii. 678. 
 
 14 Gray 69. 
 Commonwealth v. Trenton Bridge Co., 0. S. 
 
 ix. 298. 
 Commonwealth ex rel. Cozzens v. Frini, N. 
 
 S. iv. 700. 
 Commonwealth ex rel. Crosse v. Halloway, 
 
 N. S. ii. 474. 44 Penna. St. 210. 
 Commonwealth ex rel. Hamilton v. Select & 
 
 Common Councils of Pittsburgh, 0. S. viii. 
 
 286. 34 Penna. St. 496. I 
 
 Commonwealth ex rel. Thomas v. Commis- 
 sioners, 0. S. vii. 92. 32 Penna. St. 218. 
 Oonkey v. Railroad Co., N. S. xii. 365. 31 
 
 Wis. 619. 
 Connecticut, Opinion of Supreme Court, N. 
 
 S. ii. 460. 30 Conn. 591. 
 Conover v. Mayor, 0. S. vi. 131. 25 Barb. 
 
 513; 14 How. 550; 5 Abb. Pr. (N. Y.) 
 
 393. 
 Conrow v. Stroud, N. S. vi. 298. See 55 
 
 Penna. St. 28. 
 Constant i'. Allegheny Ins. Co., N. S. i. 116. 
 
 3 Wall. Jr. 313. 
 
 Converse v, Norwich & New York Transpor- 
 tation Co., N. S. vi. 214. 33 Conn. 166. 
 Cook V. Dillon, 0. S. viii. 435. 9 Iowa 407. 
 Cook 1). Meeker, N. S. vii. 112. 9 Ti£f. 15 ; 
 
 s. c. 42 Barb. 533. 
 Cook V. Rogers, N. S. xiv. 633. 31 Mich. 
 
 391. 
 Coolidge V. Guthrie, N. S. viii. 22. 
 Cope V. Doherty, 0. S. vii. 181. 2 DeG. & 
 
 J. 614. 
 Corninan t'. Eastern Counties Railway Co., 
 
 0. S. viii. 173. 4H. A N. 781. 
 Corson v. Mulvany, N. S. iv. 478. 49 Penn. 
 
 St. 88. 
 Costigan n. Newland, 0. S. i. 30. 12 Barb. 
 
 456. 
 Couch V. Steel, 0. S. ii. 685. 77 E. C. L. R. 
 
 402. 
 Coulter V. Robertson, 0. S. i. 500. 24 Miss. 
 
 278. 
 Councer v. Steam Tug Griffin, N. S. v. 45. 
 Courser v. Powers, N. S. i. 268. 34 Verm. 
 
 617. 
 Cox V. Farmers' Market Co., N. S. ix. 103. 
 Creighton v. Ladley, N. S. vi. 369. 6 Phila. 
 
 209. 
 
 Cresson v. Cresson, 0. S. vi. 42. 
 
 Crocker v. Arey, 0. S. iv. 462.' 3 R. I. 178. 
 
 Crocker v. Crocker, 0. S. ix. 639. 46 Maine 
 
 250 ; 52 Id. 267. 
 Crosby v. Mason, N. S. vi. 13. 32 Conn. 
 
 482. 
 Crouch 1). Great Northern Railway Co., 0. 
 
 S. V. 62. 25 Law Jour. Exch, 137. 
 Cuckson V. Stone, 0. S. vii. 250. 102 E. C. 
 
 L. R. 248. 
 Cuff V. Newark & N. Y. Railroad Co. N. S. 
 
 ix. 541. 25 N. J. 17; Id. 574. 
 Cumberland Coal Co. v. Sherman, 0. S. viii. 
 
 333. 30 Barb. 553. 
 Cummings v. Mead, 0. S. vi. 51. 
 Currier i>. Life Ins. Co., N. S. xiv. 169. 53 
 
 N. H. 538. 
 Currier v. Lockwood, N. S. xiv. 12. 40 
 
 Conn. 349. 
 Curry v. Hofftoai, 0. S. ii. 246. 
 Curry v. Scott, N. S. vii. 166. 54 Penna. St. 
 
 270., 
 Cushman «. Smith, 0. S. i. 265. 34 Maine 
 
 247. 
 Custar V. Titusvillc Gas Co., N. S. ix. 746. 
 
 63 Penna. St. 381. 
 Cutter [Cutler] v. Bonney, N. S. xiv. 445. 
 
 30 Mich. 269. 
 Cuyler v. Perrill, N. S. viii. 100. 1 Abb. 169. 
 
 Dacosta V. Davis, 0. S. i 668. 4 Zab. 319. 
 Daily Post Co. v. McArthur, N. S. vii. 462. 
 
 16 Mich. 447. 
 Dale V. Gear,-N. S. xii. 14. 38 Conn. 15. 
 Daly II. Palmer & Jarrett, N. S. viii. 286. 6 
 
 Blatoh. 256. 
 Dalyell v. Tyrer, 0. S. vii. 440. 96 B. C. L. 
 
 R. 899. 
 Daniels v. Nelson, N. S. viii. 149. 41 Verm. 
 
 161. 
 Danner v. Trescot, 0. S. ii. 366. 6 Rich. 
 
 Eq. 356. 
 Dark v. Johnston, N. S. vi. 543. 55 Penna. 
 
 St. 164. 
 Davenport v. Underwood, N. S. xiii. 211. 9 
 
 Bush 609. 
 Davidson v. Graham, 0. S. iii. 291. 2 Ohio 
 
 St. 131. 
 Davidson u. Ishan, 0. S. v. 61. 1 Stock. 186. 
 Davies v. Bradley, 0. S. f. 232. 28 Verm. 
 
 118. 
 Davies v. Roper, 0. S. iv. 504. 2 Jurist N. 
 
 S. 167. 
 Davis V. Davis' Ex'r, 0. S. iii. 533. 1 Hous- 
 ton 44. 
 Davis V. Hatcher, N. S. x. 619. ] Wood 
 
 456. 
 Davis, In re, N. S. vii. 30. 
 Davis V. Kendall, 0. S. ii. 681. 2 R. L 566. 
 Davis V. Oberteuffer, 0. S. iv. 423. 
 Dawson, In re, 0. S. iv. 241. 3 Bradford 
 
 103. 
 Deal V. Bogue, 0. S. i. 301. 20 Penna. St. 
 
 228. 
 Dean v. Charlton, N. S. vii. 564. 23 Wis. 
 
 590. 
 Dean v. Negley, N. S. i. 283. 41 Penna.'St. 
 
 312. 
 Dean v. Nelson, N. S. x. 221. 10 Wail. 158. 
 Dean v. Thwaite, 0. S. v. 664. 21 Beav. 621. 
 
1016 
 
 Beardorff v. Foresman, N. S. v. 539 
 
 Ind. 481. . 
 DeBarry i>. Withers, N. S. ii. 762. 44 Penna. 
 
 St. 366. 
 Deokert, In re. N. S. xiii. 624. 10 Bank. 
 
 Eeg. 1. 
 Deever v. Steamer Hope, N. S. ix. 683. 42 
 
 Miss. 715. 
 Defoe V. People, N. S. xi. 525. 22 Mich. 224. 
 Degg ti. Midland Railroad Co., 0. S. v. 500. 
 
 1 H. & N. 773. 
 Degiverville v. Dejarnette, N. S. xiii. 318. 56 
 
 Mo. 440. 
 Delaware & Hudson Canal Co. v. Torry, 0. 
 
 S. vii. 611. 33 Penna. St. 143. 
 Dennett v. Hopkinson, N. S. xiii. 359. 63 
 
 Maine 350. 
 Dennis v. Bohardt, N. S. ii. 166. 3 Grant 
 
 390. 
 Denny and Exchange Bank v. Lyon, 0. S. 
 
 ix. 626. 38 Penna. St. 98. 
 Densmore Oil Co. v. Densmote, N. S. ix. 96. 
 
 64 Penna. St. 43. 
 Dcross V. Kichmond, N. S. vii. 589. 18 
 
 Grat. 338. 
 Derwort v. Loomer, 0. S. i. 479. 21 Conn. 
 
 245. 
 Detert, In re, N. S. xiv. 166, 
 Detroit v. Blakeby, N. S. ix. 670 ; 21 Mich. 
 
 84. 
 Devinney v. Steamboat Memphis, 0, S. ii. 
 
 666. 
 Devitt V, Railroad Co., N. S. xii. 104. 50 
 
 Mo. 302. 
 Devoe, In re, N. S. rii. 690. See 1 Lowell 
 
 251. 
 Devoe v. Penrose Ferry Bridge Co., 0. S. iii. 
 
 79. 
 Dickey v. Telegraph Co., 0. S. viii. 358. 46 
 
 Maine 483. 
 Dickson v. Rawson, 0. S. v. 125. 5 Ohio St. 
 
 218. 
 Dimau «. Providence Railroad Co., 0. S. viii. 
 
 104. 5 R. 1. 130. 
 Dipple V. Corles, 0. S. vi. 63. 11 Hare 183. 
 Disabled Firemen, Phila. Assoc, for, v. Wood, 
 
 0. S. ix. 482. 39 Penna. St. 73. 
 District Attorney, Case of, N. S. vii. 786. 
 Dobbs, In re, 0. S. ix. 565. 21 How. 68; 12 
 
 Abb. Pr. 113. 
 Dodge et al. v. Baohe, N. S. iii. 244. 2 
 
 •Pittsburgh 487. 
 Dodge, In re, N. S. vii. 438. 2 Benedict 347. 
 Dole V. Merchants' Ins. Co., N. S. iv. 27. 51 
 
 Maine 465. 
 Doll V. .Evans, N. S. xi. 315. 15 Int. R. 
 
 Reo. 143. 
 Dolph V. Barney, N. S. xiv. 748. 5 Oreeon 
 
 19-1. 
 Donaldson, Ex parte, N. S.Vii. 213.' 
 Dorris v. Copelin, N. S. v. 492. 
 Dougherty v. Western Bank, 0. S. i. 689 
 
 13 Geo. 287. 
 Dowd V. Tucker, IS. S. xiv. 477. 41 Conn. 
 
 197. 
 Duckworth v. Johnson, 0. S. vii. 630. 4 
 
 ». & N. 653. 
 Dudley V. The Superior, 0. S. iii. 622. 1 
 
 Newberry Adm. .176. 
 
 TABLE OF CASES 
 
 24 
 
 Dufaur v. Professional Life Ass. Co., 0. S. 
 
 vii. 300. 25 Beav. 599. 
 Daffy V. Duflfy, N. S. ii. 434.. 44 Penna. St. 
 
 399. 
 Dumont v. Williamson, N. S. v. 330. ». u. 
 
 18 Ohio St. 515. 
 Dunham ti. Lamphere, 0. S. iv. 757. 3 Gray 
 
 268. 
 Dunn V. Grand Trunk Railroad Co., N. S. a. 
 
 615. 58 Maine 187. 
 Durando v. Durando, 0. S. ix. 630. 9 Smith 
 
 (N. Y.) 331 ; B. c. 32 Barb. 529. 
 Dutton V. Guardians, 0. S. v. 567. 1 H. & 
 
 N. 627. 
 Dynen d. Leech, 0. S. v. 745. 26 Law Jour. 
 
 N. S. Exch. 221. 
 
 Bagon V. Call, 0. S. viii. 488. 34 Penna. St. 
 
 236. 
 East Saginaw St. Railway Co. i". Bohn, N. 
 
 S. xii. 745. 27 Mich. 603. 
 Baton V. Del., Lack. & W. Railroad Co., N. 
 
 S. xiii. 666. 12 Siokels 382. 
 Eokert v. Cameron, N. S. ii. 49. 43 Penna. 
 
 St. 120. 
 Edith, The Ship, N. S. xi. 214. 6 Bank Reg. 
 
 449. 
 Eiooltz V. Bannister, N. S. iv. 498. 112 B. 
 
 C. L R. 708. 
 Elliott V. Nichols, N. S. viii. 433. 4 Bush. 
 
 602. 
 Ellis ■„. Buzzell, N. S. xii. 426. GO Maine 
 
 209. 
 Ely V. O'Leary, 0. S. v. 311. 2 B. D. Smith 
 
 (N. Y.) 355. 
 Emerson v. Clayton. N. S. iii. 530. 32 111. 
 
 493. 
 Bmerton v. Mathews, N. S. i. 231. 5 Law 
 
 Times N. S. 681. 
 Emigh V. Chamberlain, N. S. i. 207. 1' 
 
 Bissell 367. 
 Ensworth v. New York Life Ins. Co., N. S. 
 
 vii. 332. 
 Erben's Case, N. S. viii. 34. 6 Phila. 472. 
 Eriokson v. Nesmith, N. S. vi. 494. 46 N. 
 
 H. 371. 
 Erie Canal Co. v. Loury, 0. S. vi. 750. 
 Erie Railroad Co. v. New Jersey, N. S. iv. 
 
 238. 31 N. J. 531. 
 Erie Railroad Co. v. Skinner, 0. S. i. 97. 19 
 
 Penna. St. 298. 
 Etter's Will, In re, 0. S. iii. 42. 23 Penna. 
 
 St. 381. 
 Evansville National Bank v. Metropolitan 
 
 National Bank, N. S. x. 774. 2 Bissell 527. 
 Bx parte Alexander, 0. S. ii. 44. 
 Ex parte Chetwiud, N. S. iv. 298. 
 Ex parte Donaldson, N. S. vii. 213. 
 Ex parte Griffin, N. S. viii. 358. 2 Am. L. 
 
 T. 93. 
 Bx parte Jenkins, 0. S. ii. 144. 2 AVall. Jr. 
 
 521. 
 Bx parte Knowles, 0. S. iv. 598. 5 Cal. 300. 
 Ex parte McCann, N. S. v. 168. 
 Ex parte MoGruder, N. S. vi. 292. 
 Ex parte Merryman, 0. S. ix. 524. 28 Law 
 
 Rep. 78. 
 Bx parte Robinson, 0. S. iv. 61 7. 1 Bond 39. 
 
 N. S.,xiii. 435. 19 Wall. 505. 
 
REPORTED IN FULL. 
 
 101< 
 
 Ex parte Sifford, 0. S. v. 659. 
 
 Express Co. v. Dunlevy, N. S. iii. 2G6. 21 
 
 Ind. 4. 
 ExpresB Co. v. Fletcher, N. S. vi. 21. 2o 
 
 Ind. 492. 
 Bxpresa Co. v. Maine Central Kallroad Co., 
 
 N. S. ix. 728. 67 Maine 188. 
 Express Co. o. Keno, N. S. xi. 730. 48 Mo. 
 
 264. 
 
 Fairgrieves v. Lehigh NaT. Co., 0. S. v. ICl. 
 
 2 Phila. 182. > 
 Faleke r. Gray, 0. S. viii. 116. 29 Law Jour. 
 
 N. S. Eq. 28. 
 Farina v. Silverlock, 0. S. v. 315. 6 De G., 
 
 Maon. & G. 214. 
 Parmer;:' & Mechanics' Bank v. Ins. & Trust 
 
 Co., N. S. vii. 467. 57 Penoa. St. 388. , 
 Farnham v. Camden & Amhov Railroad Co., 
 
 N. S. vii. 172. 55 Penna. St. 53. 
 Farris v. Kirkpatrick's Heirs (Caperton et 
 
 al.), 0. S. vii 672. 1 Head 606. 
 Felch V. Bugbee, 0. S. ix. 104. 48 Maine 9. 
 Fennorstein's Champagne, In re, N. S. v. 
 
 464. 3 Wall. 145. 
 Ferry v. Street, 0. S. i. 295. 14 B. Monroe 
 
 355. 
 Fetter, William, In re, 0. S. i. 529. 3 Zab. 
 
 311. 
 Filkins v. Hawkins, N. S. T. 160. See 24 
 
 Ark. 286. 
 Filley v. Fassett, N. S. riii. 402. 44 Mo. 168. 
 Findley v. Vint, 0. S. ii. 712. 
 First Nat. Bank v. N. Milford, N. S. x.- 572. 
 
 36 Conn. 93. 
 Fisher v. M'Girr, 0. S. ii. 460. 1 Gray 1 . 
 Fitch V. Gates, N. .S. xiii. 27. .39 Conn. 366. 
 Fitch i>. Harrington, 0. S. viii. 688. 13 
 
 Gray 468. 
 Fitzgerald v. Hayward, N. S. xii. 771. 50 
 
 Mo. 516. 
 Fletcher v. Phelps, 0. S. v. 677. 28 Verm. 
 
 257. 
 Fogarties v. State Bank, 0. S. viii. 393. 12 
 
 Rich Law 518. 
 Follet V. Jewett, 0. S. i. 600. 11 N. Y. Leg. 
 
 Obs. 193. 
 Fontain v. Ravenel, 0. S. iii. 264, 330. 17 
 
 How. 369. 
 Ford I. Flint, N. S. vii. 296. 40 Verm. 
 
 382 
 Ford'i). Snrget, N. S. xi. 301. 46 Miss. 130. 
 Forshaw v. Higginson, 0. S. v. 56. 20 Bear. 
 
 485. 
 Forsyth r. Wells, N. S. i. 225. 41 Penna. 
 
 St. 291. 
 Foster v. Dwinel, N. S. i. 604. 49 Maine 44. 
 Foster v. Gordon, N. S. i. 611. 49 Maine 54. 
 Foster v. Julien, N. S. i. 362. 10 Smith (N. 
 
 Y.) 28. 
 Foster v. People, N. S. viii. 494. 18 Mich. 
 
 266. 
 Foster V. Steamboat Pilot, 0. S. i. 403. 1 
 
 Newberry Adm. 215. 
 Foster's Appeal, N. S. xiii. 300. 74 Penna. 
 
 St. 391. 
 Frankford «. Lennig, 0. S. i. 357. 2 Phila. 
 
 403. 
 
 Franklin v. State, 0. S. v. 722. 29 Ala. N. 
 
 S. 14. 
 Frary v. Booth, N. S. iv. 142. 37 Verm. 78. 
 Frazer v. Seibcrn, N. S. vi. 475. 16 Ohio St. 
 
 614. 
 Freeman v. Freeman, N. S. viii. 29. 41 Barb. 
 
 .'i06 ; s. c. 4 Hand 34. 
 Fremont, The Propeller, N. S. i. 340. 14 
 
 La. Ann. 524. 
 French v. Tumlin, N. S. x. 641. 14 Int. 11. 
 
 Roo. 140. 
 Prevail k. Barclay, 0. S. ii. 172. 
 Fritz V. Fisher, 0. S. iii. 243. 
 Frost t>. Plumb, N. S. xiii. 537. 40 Conn. 111. 
 Frost V. Railroad Co., N. S. xi. 101. 
 Fullam V. Adams, N. S. iv. 400. 37 Verm. 
 
 391. 
 Fulton I.. Blake, N. S. xii. 779. 5 Bissell 
 
 371. 
 Fulton V. Farley, N. S. ix. 401. 
 Furber v. Sturmy, 0. S. vii. 296. 5 Jur. N. 
 
 S. (E.xch.) 45. 
 
 Gaines's Appeal, 0. S. iv. 364. 11 La. Ann. 
 
 124. 
 Gale V. Kalamazoo, N. S. xi. 286. 23 Mich. 
 
 344. 
 Galena Packet Co. v. Rock Island Railroad 
 
 Co., N. S. vii. 409. 6 Wall. 213. 
 Galland v. Galland, N. S. ix. 403. 38 Cal. 
 
 265. 
 Galliardt). Laxton, N. S. vii. 305. 110 E. C. 
 
 L. R. 363. 
 Galpin s. Critchlow, N.' S. xiii. 137. 112 
 
 Mass. 339. 
 Garland, Ex parte, N. S. vi. 284, 394. 4 
 
 Wall. 333. 
 Garnsey v. Mundy, N. S. xiii. 345. 24 N. J. 
 
 Eq. 243. 
 Garrard County Ct. v. Kentucky River Nav". 
 
 Co., N. S. X. 151. 8 Bush 300. 
 Garsed v. Turner, N. S. xi. 259. 71 Penna. 
 
 St. 56. 
 Gartin v. Penick, N. S. ix. 210. 5 Bush 1 10. 
 Garvin v. Williams, N. S. xi. 642. 48 Mo. 
 
 206. 
 Gates V. Beecher, N. S. xiv. 440. 15 Sickcls 
 
 518. 
 Gates V. Brower, 0. S. ii. 283. 5 Seldon 205. 
 Gates V. People, 0. S. ii. 671. 14 III. 433. 
 Gaugh V. Greenlaws, 0. S. vii. 591. Sec 4 
 
 Sneed 371. 
 Gaughan «. N. W. Fertilizing Co., N. S. xii. 
 
 569. 3 Bissell 485. 
 Gaul V. Willis, 0. S. iv. 661. 26 Penna. ."^t. 
 
 259. 
 Germania Ins. Co. r. Steamboat Lady Pike, 
 
 N. S. viii. 614. 2 Bissell, 141. - 
 Gibbs V. Benjamin, N. S. xiii. 93. 45 Verm. 
 
 124. 
 Gibbs V. Fremont, 0. S. ii. 113. 9 Exch. 2 J ; 
 
 22 Law Jour. N. S. Exch. 302. 
 Gibbs V. Gray, 0. S. v. 738. 2 H. & N. 22. 
 Gill V. Pavenstedt, N. S. vii. 672. 
 Gillis V. Pennsylvania Railroad Co., N. S. 
 
 viii. 729. 59 Penna. St. 129. 
 Gilman i). Railroad Co., N. S. xii. 555. 60 
 
 Maine 235. 
 
1018 
 
 Gilmour v. Supple, 0; S. vii. 239. 11 Moore 
 
 Priv. C. C. 661. 
 Gilson «. Bingham, K. S. xi, 73. 43 Verm. 
 
 410. 
 Girard Bank k. Bank of Penn Township, 0. 
 
 S. ix. 620. 39 Penna. St, 92. 
 Gladstone ti. Musurus Bey, N. S. ii. 176. 1 
 
 H. &, Mill 495. 
 Glendon Iron Co. v. Uhler, N. S. xili. 543. 
 
 75 Pcnna. St. 467. 
 Glover v. Powell, 0. S. iii. 367. 2 Stockton 
 
 211. 
 Goohenaur's Estate, 0. S. iii. 486. 23 Penna. 
 
 St. 460. 
 Goddardii. Grand Trunk Railroad Co., N. S. 
 
 X. 17. 67 Maine 202. 
 Golden Rocket, The, N. S. iv. 27. 61 Maine 
 
 465. 
 Goodwyn v. Chaveley, 0. S. Tii. 684. 4 H. 
 
 & N. 631. 
 Gookin v. New England Ins. Co., 0. S. viii. 
 
 362. 12 Gray 501. 
 Gordon v. Shallcross, 0. S. Iv. 309. 
 Gordon v. South Fork Canal Co., N. S. viii. 
 
 279. 2 Abb. 479. 
 Gordon v. Stott, N. S. vii. 749. 2 Bank. Reg. 
 
 28. 
 Gordon t>. United States, N. S. v. 111. 2 
 
 Wall. 561. 
 Gorton ii. Brown, N. S. ii. 540. 27 111. 489. 
 Gould 1). Sterling, N. S. i. 290. 9 Smith (N. 
 
 Y. ) 456. 
 Gouldiug V. Davidson, N. S. iii. 34. 12 
 
 Smith (N. Y.) 604; s. c. 25 How. 483; 
 
 See 28 Barb. 438. 
 Gourdier v. Cormack, 0. S. v. 310. 2 B. D. 
 
 Smith (N. Y.) 200. 
 GouriS, Succession of, N. S. i. 424. 
 Graham v. Maysville, 0. S. vi. 589. s. c. 2 
 ■ Meto. (Ky.) 66. 
 Graham ii. Merrill, N. S. viii. 477. 5 Cold. 
 
 622. 
 Graham v. Telegraph Co., N. S. x. 319. 1 
 
 Col. 230. 
 Graves v. Bank, N. S. xiii. 617. 10 Bush 
 
 23. 
 Graves v. Steamboat Co., N. S. xii. 23. 38 
 
 Conn. 143. 
 Gray v. Clinton Bridge, K. S. vii. 149. 
 Gruydon v. Graydon, N. S. xii. 391. 23 K. 
 
 J. Eq. 230. 
 Great Republic, In re Cargo of the, 0. S. vii, 
 
 271. 
 Greene d. Greene, 0. S. iv. 42. 2 Gray 361. 
 Greenfield v. Bates, 0. S. v. 507. 5 Ir. Ch. 
 
 219. 
 Greening v. Schooner Grey Eagle, N. S. vii. 
 
 226. 
 Greenwald v. Insurance Co., 0. S. vii. 282. 3 
 
 Phila. 323. 
 GrifBn, Ex parte, N. S. viii. 358. 
 Gross [Cross] v. Beard, N. S. ii. 548. 12 
 
 Smith (N. Y.) 85. 
 Grosvenor v. Insurance Co., 0. S. vii. 118. 
 
 3 Smith (N. Y.) 391. 
 Groves v. Wright, 0. S. v. 55. 2 Kay & 
 
 Johns. 347. 
 Guffy V. Commonwealth, 0. S. ii. 242. 2 
 
 Grant 66. 
 
 TABLE OP CASES 
 
 Gnillaudet ». Howell, N. S. vi. 522. 8 Tiff. 
 657. 
 
 E. 
 
 Gurney v, Womersley, 0. S. iii. 502. 
 
 C. Ii. R. 133. 
 Guthrie's Appeal, 0. S. ix, 354. 37 Penna. 
 
 St. 9. 
 
 Haines v. Thompson, N. S. xi. 680. 70 
 
 Penna. St. 434. 
 Hall V. Martin, N. S. vi. 757. 46 N. H. 337. 
 Hall V. Waterhouse, N. S.-iv. 754. 12 Law 
 
 Times N. S. 297. 
 Hamilton v. People, N. S. xiii. 679. 29 Mich. 
 
 173. 
 Hamilton v. Windolf, N. S. xii. 286. 36 Md. 
 
 301. 
 Hammett «. City, N. S. viii. 411. 65 Penna. 
 
 . St. 146. 
 Hammond r. Hnssey, N. S. xii. 114. il N. 
 
 H. 40. 
 Hampton v. Stevens, N. S. x. 107. 46 Mo. 
 
 404. 
 Hanchett v. Briscoe, 0. S. Vi. 61. 22 Beav. 
 
 496. 
 Hancock v. Austin, N. S. iv. 110. 108 E. C. 
 
 L. R. 634. 
 Hancock v. Butler, 0. S. viii. 39. 21 Texas 
 
 804. 
 Hancock «. Life Ins. Co., N. S. xiii. 103. 
 Hanford v. Paine, 0. S. ix. 553. 32 Verm. 
 
 442.- 
 Hannibal & St. Jo. Railroad Co. v. Higgins, 
 
 N. S. V. 715. 36 Mo. 418. 
 Hansbrough v. Peck, N. S. vii. 74. 5 Wall. 
 
 497. 
 Harmanson v. Wilson, N. S. xiv. 627. 
 Harrison v, Harrison, N. S. xi. 44. 43 Verm. 
 
 417. 
 Harrison v. Pope, 0. S. iv. 313. 
 Hartley & Morris' Appeal, N. S. Vii. 106* . 
 
 63 Penna. St. 212. 
 Hartshorn v. Shoe &, Leather Dealers' InS; 
 
 Co., 0. S. ix. 184. 15 Gray 240. 
 Hauser v. Commonwealth, N. S. v. 668. 51 
 
 Penna. St. 332. 
 Hawkins v. Twyzill, 0. S. iv. 563. 85 E. C. 
 
 L. R. 88.3. 
 Hawkins' Appeal, K. S. viii. 205. 34 Conn. 
 
 548. 
 Hawley v. Bait. Si, Ohio Railroad Co., 0. S. 
 
 vi. 362. 
 Hawley v. Hunt, N. S. viii. 546, 27 Iowa 
 
 303. 
 Hayeock v. Group, N. S. vii. 529. 57 Penna. 
 
 St. 438. 
 Haydon v. Field, 0. S. i. 421. 
 Hayes i'. Miller, N. S. xi. 370. 77 Penna. St. 
 
 238. 
 Hazen v. Commonwealth, O.- S. ii. 654. 23 
 
 Penna. St. 355. 
 Headley v. Kirby, 0. S. i. 25. 18 Penna. St. 
 
 326. 
 Heastings «. MoGee, N. S. i. 338. 66 Penna. 
 
 St. 384. 
 Hefferma'n ■•,. Porter, N. S. ix. 41. 6 Cold. 
 
 391. 
 Heitler's Estate 0. S. iii. 487. 
 Helen, The, N. S. v. 176. Law Rep. 1 Adm. 
 
 & Eco. 1. 
 
EEPORTED IN FULL. 
 
 1019 
 
 Hendriokson v. People, 0. S. ii. 531. 6 Sel- 
 
 den 13. 
 Hepburn i>. Griswold, N. S. ix. 175. 8 AVall. 
 
 603. 
 Herman t>. State, 0. S. iv. 344. 8 Ind. 545. 
 Hewison i-. New Haven, N. S. vii. 777. 34 
 
 Conn. 136. 
 Hill i: Balls, 0. S. vi. 162. 2 H. & N. 298. 
 Hill V. Golden Gate, 0. S. v. 142. 1 New- 
 berry Adin. 30S. 
 Hill r. Spear, N. S. xi. 497. 50 N. H. 253. 
 Hine, Steamboat, v. Trevor, N. S. vi. 586. 
 
 4 Wall. 655. 
 Hinkley v. Wheelwright, N. S. viii. 590. 29 
 
 Md. 341. 
 Hinson v. Lott, N. S. ix. 36. 8 Wall. 14S. 
 Hobart v. Betroit, N. S. vii. 741. 17 Mich. 
 
 246, 
 Hoe V. Sanborn, 0. S. viii. 740. 7 Smith (N. 
 
 Y.) 552; s. c. 9 Tiff. 93; 3 Abb. Pr. N. S. 
 
 (N. Y.) 189; 35 How. 197. 
 Hoffman v. Beohtel, N. S. v. 745. 52 Penna. 
 
 St. 190. 
 Hoffman v. Miller, N. S. i. 676. 9 Bosw. 334. 
 Holabird v. Ins. Co. N. S. xii. 566. 
 Holbrook v. American Ins. Co. 0. S. i. IS. 1 
 
 Curtis 193. 
 Holbrook v. Vose, N. S. iv. 602, 687. 
 Holcomb 1). Roberts, N. S. vii. 4T4. 57 
 
 Penna. St. 493. 
 Holcomb !•. Tiffany, N. S. xi. 748. 38 Conn. 
 
 271. 
 Holmes i'. Clarke, N. S. ii. 107. 9 Law Times 
 
 N. S. 178. 
 Holmes v. Cleveland, Columbus & Cincinnati 
 
 Railroad Co., 0. S. viii. 716. 
 Holmes v. Kidd, 0. S. vii. 563. 3 H. & N. 
 
 891 
 Holmes v. Paul, 0. S. vi. 482. 3 Grant 299. 
 Hooper v, Rosenthal, 0. S. T. 46. 
 Hooper v. WeUs, Fargo & Co., N. S. v. 16. 
 
 27 Cal. 11. 
 Hopkins o. Westcott, N. S. vii. 533. 6 
 
 Blatohf. 64. 
 Hord V. Crutoher, N. S. vi. 165. 
 Horn V. Cole, N. S. xii. 303. 51 N. H. 287. 
 Home V. Anglo-Australian Ins. Co., 0. S. ix. 
 
 496. 4 Law Times N. S. 142. 
 Hotten V. Arthur, N. S. iii. 306. 1 H. A 
 
 Mill. 603. 
 Hovey v. Home Ins. Co., N. S. xiii. 511. 
 Howard i'. Gibbons, 0. S. V. 125. 5 Ohio St. 
 
 580. „ . „ „ 
 
 Howard v. Kentucky Ins. Co., 0. S. i. 686. 
 
 13 B. Monroe 282. 
 Howe V. Eddy [Willard], N. S. vii. 219. 40 
 
 Verm. 654. 
 Howlett V. Bruck, 0. S. v. 125. 5 Ohio St. 
 
 234. 
 Hudson V. Bingham, N. S. xii. 637. 
 Hughes V. Litsey, N. S. r. 148. „ „ ^ 
 Humfrey v. Dale, 0. S. v. 651. 90 E, C. L. 
 
 T> 266 
 Hunt V. Jackson, N. S. Ti. 169. 5 Blatch 349. 
 Hunt V. Mootrie [Moultrie], 0. S. iv. 395. 3 
 
 Bradford 322 ; s. c. 26 Barb. 252 ; but see 
 
 9 Smith (N. T.) 394. 
 Huntington «. Ogdensburgh & Lake Cham- 
 plain Railroad Co., N. S. vii. 143. See .33 
 
 How. 416. 
 
 Hnrd v. Rutland Railroad Co., 0. S. ii. 232. 
 
 25 Verm. 116. 
 Hurdle c. Banner, 0. S. vii. 58. 5 Jones 
 
 (N. C.) 360. 
 Hunter «. Chandler, N. S. jv. 440. 45 Mo. 
 
 452. 
 Hutchinson v. McCIuro, 0. S. i. 170. 20 
 
 Penna. St. 63. 
 Hutchinson v. Skelton, 0. S. v. 505. 2 Mac- 
 queen 492. 
 Ilutmaoher v. Harris's Admr's, 0. S. ix. 410.> 
 
 38 Penna. St. 491 
 Hyland v. Sherman, 0. S. v. 311. 2 B. D. 
 
 Smith (N. Y.) 234. 
 
 niinois Central Railroad Co. ./. Godfrey, N. 
 
 S. xiv. 290. 
 Indiana v. Ohio & Mississippi Railroad Co., 
 
 N. S. iv. 583. 23 Ind. 362. 
 Inhabitants of Yarmouth v. Trustees, 0. S. 
 
 j. 596. 34 Maine 411. 
 In re Abbe, N. S. vii. 824. 2 Bank. Reg.- 
 
 26. 
 In re Ah Fong, N. S. xiii. 761. 
 In re Alexander, N. S. viii. 423. 3 Bank. 
 
 Reg. 6. 
 In re Angler, N. S. X. 190. 4 Bank. Reg. 
 
 199 
 In'rofeaxter, N. S. v. 159. 
 In ro Burns, N. S. vii. 105. 6 Int. Ror, Rec. 
 
 182. 
 In re Eryne, N. S. vii. 499. 1 Bank. Reg. 
 
 122. 
 In re Campbell, N. S. vii. 109. 1 Abb. 185. 
 In re Carl Vogt, N. S. xii. 04. s. c. 44 How. 
 
 171. 
 In re Chamberlaines, N. S. xiv. 638. 
 In re Chandler, N. S. xiii. 310. 9 Bank. 
 
 Reg. 514. 
 In re Clark, 0. S. iv. 364. 11 La. Ann. 124. 
 In re Davis, N. S. vii. 30. 
 In ro Dawson, 0. S. iv. 241. 3 Bradford 
 
 103. 
 In re Deokert, N. S. xiii 624. 10 Bank. 
 
 Reg. 1. 
 In re Detert, N". S. xiv. loo. 
 In re Devoe, N. S. vii. 690. See 1 Lowell 
 
 251. 
 In re Dobbs, 0. S. ix. 565. 21 How. 08; 12 
 
 Abb. Pr. 113. 
 In re Dodge, N. S. vii. 438. 2 Benedict .347. 
 In re fitter's Will, 0. S. iii. 42. 23 Penna. 
 
 St. 381. 
 In re Gordon. N. S. ii. 749. 
 In re Great Republic, 0. S. vii. 271. 
 In re Jersey City Window Glass Co., N. S. 
 
 vii. 419. 1 Bank. Reg. 113. 
 In re Jewett, N. S. vii. 291, 294. 1 Bank. 
 
 Reg. 130, 131. 
 In re Keller's Minors, 0. S. v. 561. 5 Ja. 
 
 Ch. 328. 
 In re Kingsley, N. S. vii. 423. 1 Low. 216. 
 In re Kirkland, Chase & Co., N. S. xii. 300, 
 In re Leeds, N. S. vii. 693. 1 Bank. Reg. 
 
 ■too 
 
 In re Manheim Township, 0. S. iv. 103. 
 In re McDonald, 0. S.ix. 661. 
 In re Milner, N. S. vii. 371. 1 Abb. 261. 
 In re Mumma's Account, 0. S. v. 489. 
 In re O'Harra, N. S. viii. 113.. 
 
1020" 
 
 TABLE OF CASES 
 
 In re Patterson, N. S. vii. 26. 1 Benedict 
 
 448, 508, 544. 
 In ro Pettus, N. S. vii. 695. 2 Bank. Keg. 17. 
 In re Powell's Trust, 0. S. vii. 311. 
 In re Ray, N. S. vii. 283. 2 Benedict 53. 
 In re Kicket's Trust, 0. S. vi. 60. 
 In re Rosenfield, N. S. vii. 618. 1 Bank. 
 
 Reg. 161. 
 In re Rosenfield, Jr., N S. viii. 44. 2 Bank. 
 
 Reg. 49. 
 In re Ruth, N. S. vii. 157. 6 Int. Rev. Rec. 
 
 166. 
 In re Ruth, N. S. x. 767. 32 Iowa 250. 
 • In ro Sehnepf, N. S. vii. 204. 2 Benedict 72. 
 In re Shepard, N. i3. vii. 484. 1 Bank. Reg. 
 
 115. 
 In re Spangler, N. S. ii. 698. 11 Mich. 298. 
 In re Sutherland, N. S. viii. 39. 1 Deady 
 
 416. 
 In re Thornton, N. S. viii. 42. 2 Bank. Reg. 
 
 68. 
 In re Ticknor's Estate, N. S. iv. 269. 13 
 
 Mich. 44. 
 In re Wells & Son, N. S. vii. 163. 
 In re Westropp, 0. S. viii. 192. 5 Jurist N. 
 
 S. 1318. 
 In ro White, 0. S. i. 280. 
 In re Williamson, 0. S. iii. 749. 0. S. i,v. 27 
 
 26 Penna. St. 9. 
 In re Wynn, N. S. ix. 627. 4 Bank. Reg. 5. 
 In re York & Hoover, N. S. x. 36. 4 Bank. 
 
 Reg. 156. 
 ■ Insurance Co. v. Algeo, 0. S. vii. 608. 32 
 
 Penna. St. 330. 
 Insurance Co. v. Brooks, N. S. iii. 399. 51 
 
 Maine 506. 
 Insurance Co. v. Brown, N. S. iii. 46. 11 
 
 Mich. 265. 
 Insurance Co. v. Copper, 0. S. vii. 237. 32 
 
 Penna. St. 351 
 Insurance Co. v. DeGraff, N. S. iii. 489. 12 
 
 Mich. 124. 
 Insurance Co. v. Detroit & Cleveland Steam 
 
 N. Co., N. S. X. 383. 13 Int. Rev. Rec. 94. 
 Insurance Co. «. Ditffield, 0. S. iv. 662. 2 
 
 Handy 122. 
 Insurance Co. v. Goodman, 0. S. iv. 481. 
 Insurance Co. v. Hall, N. S. iii. 417. 12 
 
 Mich. 202. 
 Insurance Co. v. Hull, N. S. vii, 606. s. c. 
 
 68 111. 357. 
 Insurance Co. ». Kinyon, N. S. xiii. 674. 37 
 
 N. J. 33. 
 Insurance Co. c. Lady Pike, N, S. viii. 614. 
 
 2 Bissell 141. 
 Insurance Co. v. Lamb, N. S. iii. 686. 1 H. 
 
 & Mill. 716. 
 Insurance Co. v. Levy, 0. S. i. 243. 
 Insurance Co. v. Ljney, N. S. iii. 651. 20. 
 
 Md. 20. 
 Insurance Co. i. McLaughlin, N. S. vi. 374. 
 
 63 Penna. St. 485. 
 Insuraiice Co. v. McMillan, 0. S. iii. 671. 27 
 
 Abb. N. S. 77. 
 Insurance Co. t>. MoMillen, N. S. xiii. 610. 
 
 24 Ohio St. 67. 
 Insurance Co. t>. Roberts, 0. S. vii. 229. 31 
 
 Penna. St. 438. 
 Insurance Co. ». Stewart, N. S. vi. 732. 
 
 ' Insurance Co. i. Wilkensen, N. S. xii. 485. 
 
 13 Wall. 222. 
 Interrogatories to the Judges by Governor 
 
 & Counsel of Massachusetts, 0. S. viii. 167. 
 Iowa College, Trustees of, v. Hill, N. S. i. 
 
 744. 12 Iowa 462. 
 Iron Co. V. Hopkins, N. S. v. 44. 4 Biss. 51. 
 Iron Co. V. Uhler, N. S. xiii. 543. 75 Penna. 
 
 St. 467. 
 Irving Bank v. Wetherald, N. S. vii. 352; 9 
 
 Tiff. 335 : s. n. 34 Barb. 323. 
 Irving 1). Hughes, N. S. vii. 209. 
 Isham V. Greenham, 0. S. iii. 498. 1 Handy 
 
 367. 
 
 Jackson v. Mlna Ins. Co., 0. S. ii. 374. s. 
 
 c. 16 B. Monroe 242. 
 Jackson v. Burwell, 0. S. iii. 279. 5 Selden 
 
 535 
 Jackson v. Forster, 0. S. vii. 302. 102 E. C. 
 
 L. B. 403. 
 Jackson Ins. Co. «. Stewart, N. S. vi. 732. 
 Jackson & Sharp Co. v. P. W. & Bait. Rail- 
 road Co., N. 8. xi. 374. 
 Jackson v. Steam Propeller Kinnie, N. S. 
 
 viii. 470. 
 Jackson ». Y. & C. Railroad Co., N. S. ii. 
 
 585, 748. 48 Maine 147. 
 James v. Cin., Ham. & Bay. Railroad Co., 0. 
 
 S. vi. 718. 2 Disney 261. 
 .Tanes v. Jenkins, N. S. xi. 24. 54 Md. 1. 
 Jenkins, Ex parte, 0. S. ii. 144. 2 Wall. Jr. 
 
 521. 
 Jenneson v. Camden <fc Amboy Railroad Co., 
 
 0. S. iv. 234. 
 Jersey City Window Glass Co., In re, N. S. 
 
 vii. 419. 1 Bank. Reg. 113. 
 Jett V. Commonwealth, N. S. vii. 260. 18 
 
 Grattan 933. 
 Jewell V. Grand Trunk Railway Co., N. S. 
 
 xiv. 368. 65 N. H. 84. 
 Jewett, In re, N. S. vii. 291, 294. 1 Bank. 
 
 Reg. 130, 131. 
 Johnson v. Gorham, N. S. xii. 271. 38 Conn. 
 
 513. 
 Johnson v. Hacker, N. S. xiv. 730. S Heisk. 
 
 .388. 
 Johnson v. Hubbell, 0. S. v. 177. 2 Stock. 
 
 332. 
 Johnson v. Irasburgh [Warburgh], N. S. xiv. 
 
 547. 47 Verm. 28. 
 Johnson v. Newton, 0. S. vi. 68. 11 Hare 160. 
 Johnson ». Stear, N. S. iii. 753. 109 E. C. 
 
 L. R. 330. 
 Johnson v. West Chester Railroad Co., N. S. 
 
 xi. 159. 70 Penna. St. ■ii''. 
 Jolly r.. Terre Haute Drawbridge Co., 0. S. 
 
 iii. 29. 6 McLean 237. 
 Jones r. Cincinnati Coal Co. [The Coal Bar- 
 ges], 0. S. iii. 391. 3 Wall. Jr. 53. 
 Jones V. Estate of Keep, N. S. v. 161. 19 
 
 Wis. 369. 
 Jones V. United States, N. S. v. 353. 1 N. 
 
 A H. 383; s. 0. 2 N. <t H 605. 
 Jordan, In re, N. S. ii. 749. 
 Jordan v. Polk, 0. S. iii. 555. 1 Sneed 430. 
 
 Kane v. McCarthy, N. S. viii. 482. 63 N. 
 C. 299. 
 
REPORTED IN FULL, 
 
 Prather, N. S. vi. 602, 
 
 1021 
 
 31 
 
 Kantvowitz 
 
 Ind. 92. 
 Kay V. Soates, 0. S. ix. 2Sb. 37 Penna. St. 
 
 31. 
 Kay V. Thomson, N. S. x. 594. 
 Kean r. Johnson, 0. S. t. 68. 1 Stock. 401. 
 Keene r. Wheatley, 0. S. ix. 33. 
 Eeeney i>. Manuf. Co., N. S. xiii. 82. 39 
 
 Conn.. 5T6. 
 Keller's Minors, In re, 0. 'S. v. 561. 5 Ir. 
 
 Ch. 328. 
 Kellogg V. Johnson, N. S. xi. 746. 38 Conn. 
 
 269. 
 Kellogg V. Page, N. S. xi. 618. 44 Verm. 
 
 356. 
 Kelly I'. Valney, 0. S, ii. 499. 
 Kennedy v. Broun, N. S. ii. 357. 106 E. C. 
 
 L. R. 677. 
 Kerwhakerr. Cleveland, Columbus & Cincin- 
 nati Railroad Co., 0. S. iii. 341. 3 Ohio 
 
 St. 172. 
 £etchum «. Bank of Commerce, 0. S. iii. 145. 
 
 5 Smith (N. T.) 499. 
 
 Kevin V. Kevill, N. S. vi. 79. 2 Bush 614. 
 Killam o. Killam, N. S. i. 18. 39 Penna. St. 
 
 120. 
 Kimball v. Connolly, N. S. vi. 598. 33 How. 
 
 247; 2 Abb. Ct. App. Dec. 504; 3 Keyes 
 
 67. 
 King r. Young Men's Building Assoc, N. S. 
 
 xi. 760. 1 Wood 386. 
 Kingsford v. Merry, 0. S. T. 568, 691. 1 H. 
 
 6 N. 50.S. 
 
 Kingsley, In re, N. S. vii. 423. 1 Lowell 
 
 216. 
 Kirkland, Chase &, Co., In re, N. S. xii. 300. 
 Kirsohner •;. Conklin, N. S. xiii. 471. 40 
 
 Conn. 77. 
 Kline v. Kline, N. S. vii. 713. 57 Penna. St. 
 
 120. 
 Knight V. Railroad Co., N. S. viii, 654, 56 
 
 Maine 234. 
 Knight V. Robinson, 0. S. v. 315. 2 Kay 
 
 & Johns. a03. 
 Knote V. United States, N. S. xiv. 367. 10 
 
 N. & H. 397. 
 Knowles, Ex parte, 0. S. iv. 598. 5 Cal. 300. 
 Knox County, Commissioners of, v. Aspin- 
 
 wall, 0. S. ix. 347. 24 How. 376. 
 Koebel v. Saunders, N. S. iv. 113. 112 E. C. 
 
 L. R. 71. 
 Ko'snig V. Smith, N. S. vii. 717. 57 Penna. 
 
 St. .<!52. 
 Kuohler v. People, N. S. ii. 43. 5 Park. 
 
 Crim. 212. 
 Kurtz V. Hibner, N. S. x. 93. 55 111. 514. 
 
 Lackawanna & B. Railroad Co. v. Chenowith, 
 
 N. S. vi. 93. 52 Penna. St. 382. 
 Lao La. Belle, The, N. S. xi. 557. 3 BisscU 
 
 31.3. 
 LaCferty v. St. Jo. Railroad Co., N. S. ix. 
 
 229. 44 Mo. 291. 
 Laird t». Railroad Co., N. S. xiv. 743. 55 
 
 N. H. 375. 
 Lancaster v. Eve, 0. S. viii. 177. 94 E. C. 
 
 L. B. 717. 
 Lander v. State, 0. S. ii. 756. 12 Te.xas 462. 
 Landolt v. Norwich, N. S. xi. 383. 37 Conn. 
 
 615. 
 
 Langaber v. Railroad Co., N. S. xiii. 747. 
 
 64 111. 243. 
 Langley v. Perry, N. S. viii. 427. 2 Bank. 
 
 Reg! 180. 
 Lanphier v. Buck, N. S. v. 224. 12 Law 
 
 Times N. S. 660. 
 Lasly [Lessley] v. Phipps, N. S. xiii. 236. 
 
 49 Miss. 790. 
 Lathrop v. Brown, N. S. x. 638. 
 Laud [Laud] v. Hoffman [Coffman], N. S. 
 
 xii. 143. 50 Mo. 243. 
 Lavaroni v. Drury, 0. S. i. 174. 8 Exoh. 
 
 .166; 22 Law Jour. N. S. Exoh. 2. 
 Law 1). Wallerstein, N. S. ix. 293. 9 Wall. 
 
 129. 
 Lawson v. Farmers' Bank, 0. S. i. 617. 1 
 
 Ohio St. 206. 
 Leach v. Marsh, N. S. ii. 22. 47 Maine 548. 
 Leathers v. Greenaere, N. S. vi. 533, 691. 
 
 53 Maine 561. 
 Le Barron v, Le Barron, N. S. ii. 212. 35 
 
 Verm. 365. « 
 
 Le Breton v. Peirce, 0. S. ix. 737; N. S. i. 
 
 35. 2 Allen 8. 
 Lee V. Jones, N. S. iv. 487. 108 E. C. L. K. 
 
 386. 
 Leech v. Caldwell, N. S. v. 280. 
 Leech v. Shantz, 0. S. v. 620. 2 Phila. 310. 
 Leeds, In re, N. S. vii. 693. 1 Bank. Reg. 
 
 138. 
 Lehman v. Potter, X. S. xii. 764. 9 Bush 357, 
 Leonard v. Boynton, 0. S. iii. 428. 11 Geo. 
 
 109. 
 Levioks i>. Walker, 0. S. ix. 112. 16 La. Ann. 
 
 245. 
 Levy V. Mercantile Ins. Co., 0. S. ii. 297. 
 Lewis V. Burr, N. S. ii. 301. 8 Bosw. 1-tO. 
 Lewis V. Graham, 0. S. v. 368. 4 Abb. Pr. 
 
 106. 
 Lewis V. N". Y. Central Railroad Co., N. S. 
 
 vi. 703. 49 Barb. 330. 
 Lewis V. Railroad Co., N. S. xiii. 284. 33 
 
 Md. 588. 
 Life Ins. Co. v. Hall, N. S. vii. 600. b. u. 
 
 68 111. 357. 
 Life Ins. Co. v. MoMillen, N. S. xiii. 010. 
 
 24 Ohio St. 67. 
 Life Ins. Co. v. Wilkenson, N. S. xii. 485. 
 
 13 Wall. 222. 
 Lincoln v. MoClatchie, N. S. x. 03 J-. 38 
 
 Conn. 136. 
 Lindenmuller v. People, 0. S. ix. 691. 21 
 
 How. 156; 33 Barb. 5-IS. 
 Littlofield II. Brooks, H". S. ii. 735. 60 Maine 
 
 475. 
 Little Miami Railroad Co. v. Wetmore, N. S. 
 
 ix. 621. 19 Ohio St. 110. 
 Livingston v. Jordan, N. S. a. 53. 
 Lloyd V. Oliver, 0. S. i. 40. 83 E. C. L. R. 
 
 471. 
 Locke V. Furze, N. S. vi. 45. Law. Rep. 1 
 
 C. P. 441. 
 Lockhart & Frew v. Lichthenthaler, N. S. 
 
 iv. 15. 46 Penna. St. 151. 
 Lockhart 1'. Van Alstyne, N. S. xiv. 180. 31 
 
 Mich. 76. 
 London & North Western Railway v. Glyn, 
 
 0. S. vii. 693. 102 E. C. L. R. 652. 
 London, University of, v. Yarrow, 0. S. vi, 
 
 100. 2J Bcav. 159. 
 
1022 
 
 TABLE OF CASES 
 
 Lord V. Litchfield, N. S. x. 493. 36 Conn. 
 
 116. 
 Loring [Loving] v. Pairo, 0. S. viii. 441. 
 
 10 Iowa 282. 
 Lorman v. Benson, 0. S. viii. 219. S Mich. 
 
 18. 
 Lotawanna, Tlie, N. S. xiv. 483. 21 Wall. 558. 
 Louisville v. Brown, N. S. xii. 721. 
 Louisville & Nashville Railroad Co, v. Col- 
 lins, N.S. V. 265. 2 Duvall 114. 
 Louisville, Cincinnati & Lexington Bailroad 
 
 Co. V. Hedger, N. S. xiii. 145. 9 Bush 645. 
 Lougcn [Longan] v. Carpenter, N. S. x. 65(L 
 
 1 Col. 205. 
 Lovett V. Hankins, N. S. vi. 52. 13 Law 
 
 Times N. S. 580. 
 Low V. Austin, N. S. xi. 366. 13 Wall. 29. 
 Lowndes v. Bettle, IT. S. iv. 169. 10 Law 
 
 Tinies N. S. 56. 
 Lucas ». Bristowe, 0. S. vii. 306. 96 E. C. 
 
 L. R. 907. 
 Lucas V. Brdce, N. S. iv. 95. 
 Lucas V. The Thomas Swann, 0. S. iii. 659. 
 
 6 McLean 282. 
 
 Ludlam v. Ludlam, N, S. iii. 595^ 12 Smith 
 
 (N. Y.) 356, s. c. 31 Barb. 486. 
 Ludlow V. Hurd, 0. S. vi. 493. 1 Disney 652. 
 Luellen v. Hare, N. S. ix. 605, 611. 32 Ind. 
 
 2U. 
 Lunilcy v. Bayard, 0. S. i. 499. 
 Lumsden v. Milwaukee, 0, S, vi, 167, 8 
 . Wis. 485. 
 Lyman v. Townsend, N. S. xi. 547. 24 La. 
 
 Ann. 625. 
 Lynch t;. People, N. S. iv. 733. 38 111. 494. 
 Lynd t>. Mcnzies, N. S. viii. 94. 33 N. J. 
 
 162. 
 Lyon V. Knott, 0. S. ii. 604. 26 Miss. 548. 
 
 Maokay v. N. Y. Central Railroad Co., N. S. 
 
 vi. 413. 8 TiiT. 76. 
 Mackenzie v. Schmidt, N. S. xiii. 448. 
 Maclin v. N. J. Steamboat Co., N. S. ix. 239. 
 
 7 Abb. Pr. N. S. 229. 
 
 Maddox ti. Graham, 0. S. vii. 747. 2 Met. 
 
 (Ky.) 56. 
 Madison Railroad Co. v, Whiteneck, 0. S. v. 
 
 214. 8 Ind. 21 7. 
 Mad River Railroad Co. v. Barber, 0. S. vi. 
 
 534. 5 Ohio St. 641. 
 Magruder, Ex parte, N. S. vi. 292. 
 Maine, Opinion of Supreme Court, K". S. ii. 
 
 621. 
 Mainprice v. Westley, N. S. v. 304. 113 E. 
 
 C. L. R. 420. 
 Maitland v. The Atlantic, 0. S. iii. 477, 1 
 
 Newberry Adm. 514. 
 Malgaigjie v. De Saint Priest, 0. S. i. 42. 0. 
 
 S. iii.%71. 
 Maltby v. Reading &, Columb. Railroad Co., 
 
 N. S. r. 479. 62 Penna. St. 140. 
 Manchester v. Hotchkiss, N. S. x, 379 s c 
 
 13 Int. R. R,eo. 126. 
 Mandershied *. Dubuque, N. S. a. 526. 25 
 
 Iowa 108 ; 29 Id. 73. 
 Manheim Township, In re, 0. S. iv. 163. 
 Manly r. Pettee, N. S. v. 486. 38 111. 128. 
 Hann v. Oriental Mill Co., N. S. xiv. 725. 
 Manufacturing Co. t. Hoffman, N. S. xi. 105. 
 
 S Daly 495. 
 
 Maples V. Railroad Co., N. S. xii. 231. 38 
 
 Conn. 657. 
 Marchi «. Samson, 0. S. iii. 570. 
 Mardall *. TheUuson, 0. S. i. 561. 83 B. C. 
 
 L. R. 857. 
 Mare v. Charles, 0. S. v. 319. 85 E. C. L. 
 
 R. 978. 
 Marine Ins. Co, v. Goodman, 0. S. iv. 481. 
 Markham v. Jaudon, N. S. ix. 285. 2 Hand 
 
 236. s. c. 49 Barb. 462 ; 3 Abb. Pr. N. S. 
 
 286. 
 Markoe v. Hartranft, N. S. vi. 487. 
 Marsh v. Burroughs, N. S. x. 718. 1 Wood 
 
 463. 
 Marsh v. Railroad Co., N. S. xii. 390. 64 
 
 111. 414. 
 Marsh B. Railroad Co., N. S. xiv. 561. 
 Marsh v. The Minnie, 0. S. vi. 328. 
 Marshall v. Knox, N. S. xii. 630. 16 Wall. 
 
 551. 
 Martin n. Robson, N. S. xiii. 547. 65 111. 
 
 129. 
 Martin v. Smith, N. S. ix. 694. 1 Dill. 85. 
 Martin v. Somerville Waterpower Co., 0. S. 
 
 V. 400. 3 Wall. Jr. 206. 
 Mason u. Eldred, N. S. vii. 402. 6 WaU. 
 
 231. 
 Massachusetts, Interrogatories to the Judges, 
 
 by Governor and Couusel of, 0. S. iii. 167. 
 Mathews v. Mathews, 0. S. iii. 117. 
 Matthews v. Bank, N. S. xiv. 153- 
 Mauran v. Smith, N. S. v. 630. 8 R. I. 192. 
 May ex rcl. Cook v. Detroit, N. S. xii. 149. 
 
 26 Mich. 263. 
 Maybee v. Sniffen, 0. S. v. 311. 2 E. D. 
 
 Smith (N. Y.) 1. 
 Mayor of Baltimore v. Connellsville & Soutli 
 
 Penn. Railroad Co., N. S. iv. 750. See 3 
 
 Pittsburgh 20. 
 Mayor of Newark v. State, N. S. xiii. 441. 
 
 37 N. J. 415. 
 McBride v. Dorman, N. S. vi. 736. 
 McCahill v. Kipp, 0. S. v. 313. 2 E. D. 
 
 Smith (N. Y.) 413. 
 McCann, Ex parte, N. S. v. 158. 
 McCormick v. Humphreys, N. S- vi. 552. 27 
 
 Ind. 144. 
 McCormick v. Manny, 0. S. iv. 277. 6 
 
 McLean 539. 
 McCormick v. Busfih, N. S. iii. 93. 15 Iowa 
 
 127. 
 MoCramer ti. Thompson, N. S. vii. 92. 21 
 
 Iowa 244. 
 McCready v. Holmes, 0. S. vi. 229. 
 MoCreedy v. Callahan, N. S. iii. 241, 48 
 
 Penna. St. 463. 
 McDaniels v. Daniels, N. S. vii. 729. 40 
 
 Verm. 363. 
 McDonald, In re, 0. S. ix. 661. 
 McDonald v. McDonald, N. S. v. 675. 24 
 
 Ind. 68. 
 McDonald v. Railroad Co., N. S. ix. 10. 26 
 
 Iowa 124. 
 McDonogh's Ex'rs v. McDonogh's Heirs, 0. 
 
 S. ii. 400. 15 How. 367. 
 McEnroy v. Dyer, N. S. iv. 166. 47 Penna. 
 
 St. 118. 
 McParland v. Goodman, N. S. xiii. 697. 6 
 
 BisselUU. 
 McGlensey v. Cox, 0. S. i. 34. 1 Phila. 387. 
 
REPORTED IN FULL. 
 
 1C23 
 
 MoGuire v. Stevens, N. S. ix. 484. 42 Miss. 
 
 724. 
 Mclntyre v. Kennedy, 0. S. T. 433. 29 
 
 Penna. St. 448. 
 McKonkey's Appeal, 0. S. i. 342. 13 Penna. 
 
 St. 253. 
 McManus v. Carmiohael, 0. S. v. 593. 3 
 
 Iowa 1. 
 McMicken v. MoMicken University, N. S. ii. 
 
 489. 
 McMillan v. Bank, N. S. x. 431. 32 Ind. 11. 
 MoEeynolds v. Smallhouse, N. S. xi. 164. 8 
 
 Bush 447. 
 McReynolds v. State, N. S. vii. 736. 5 Cold. 
 
 18. 
 Mead i-. Bank, N. S. vii. 818. « Blatoh. 180. 
 Meolianics' Bank v. JJow Haven Railroad 
 
 Co., 0. S. iv. 717. 3 Kernan 599. 
 Mede v. Hand, N. S. v. 82. 
 Meller v. Smith, 0. S. v. 314. 2 E. D. Smith 
 
 (N. Y.) 462. 
 Memphis v. Brown, N. S. xi. 629. 
 Merchants' Ins. Co. v. Algeo, 0. S. vii. 608.' 
 
 32 Penna. St. 330. 
 Merchants' Ins. Co. v. Duffield, 0. S. iv. 662. 
 
 2 Handy 122. 
 Meriden Britannia Co. v. Parker, N. S. xiii. 
 
 153. 39 Conn. 450. 
 Merrihew v. Milwaukee Railroad Co., 0. S. 
 
 V. 364. 
 Merrill v. Boylston Ins. Co., N. S. i. 342. 3 
 
 Allen 247. 
 Merrill v. Humphrey, N. S. xi. 208. 24 
 
 Mich. 170. 
 Merryman, Ex parte, 0. S. ix. 524. 24 Law 
 
 Rep. 78. 
 Merwin v. Wheeler, N. S. xiv. 601. 41 Conn. 
 
 14. 
 Mezeik v. McGraw, N. S. x. 790. 44 Mias. 
 
 100. 
 Michigan Ins. Co. v. Brown, N. S. iii. 46. 11 
 
 Mich. 265. 
 Michigan S. «fc N". Railroad Co, v. Caster, 0. 
 
 S. viii. 420. 13 Ind. 164. 
 Milan Plankroad Co. v. Hasted, 0. S. iv. 
 
 213. 3 Ohio St. 578. 
 Miller ». Eagle Life Ins. Co., 0. S. v. 313. 
 
 2 E. D. Smith (N. T.) 268. 
 Miller ti. GiUeland, 0. S. i. 672. 19 Penna. St. 
 
 119. 
 Miller v. McElroy, 0. S. i. 198. 2 Penn. L. 
 
 Jour. 305. 
 Miller v. Ripka, 0. S. ix. 561. 4 Phila. 309. 
 Miller v. Rutland Railroad Co., N. S. iii. 616. 
 
 36 Verm. 452. 
 Mills V. Brooklyn, N. S. v. 33. 5 Tiff. 489. 
 Mills ./. Gleason, 0. S. viii. 693. UWis. 
 
 470. 
 Milner, In re, N. S. vii. 371. 
 Milnor v. Newark Plankroad Co.. 0. S. vi. 6. 
 ^yClnor V. New Jersey Railroad Co., 0. S. vi. 6. 
 MBlwaukee & Miss. Railroad Co. v. Supervi- 
 sors, 0. S. iii. 679. 
 Mitchell V. Commissioners of Leavenworth 
 
 Co., N. S. xi. 626. 9 Kansas 344. 
 Mitchell V. Penna. Railroad Co., 0. S. i. 717. 
 Mitoheson v. Harlan, 0. S. vii. 468. 
 Mobile Ins. Co. v. McMillan, 0. S. iii. 671. 
 27 Ala. N. S. 77. 
 
 Mobile & Ohio Railroad Co. v. Thomas, N. 
 
 S. viii. 164. 42 Ala. N. S. 672. 
 Montana Territory t>. Lee, N. S. xiii. 487. 
 Montgomery v. Whittingtou, 0. S. v. 344. 
 Moody V. Brown, 0. S. i. 431. 34 Maine 
 
 107. , 
 
 Moore v. Green & Coates Railroad Co., N 
 
 S. ix. 225. 64 Penna. St. 79. 
 Moore D. Littel, N. S. iii. 144. 40 Barb. 488 : 
 
 s. c. 2 Hand 66. 
 Moore v. People, 0. S. i. 206. 14 How. 13. 
 Moore v. Potter, N. S. xii. 764. 9 Bush 
 
 357. 
 Moore v. Westervelt, N. S. ii. 683. 13 Smith 
 
 (N. y.) 234 J 26 How. 277. 
 Morgan v. Frees, 0. S. i. 92. 
 Morgan v. Schooner Flint, N. S. vi. 707. 1 
 
 Bissell 662. 
 Morland v. Richardson, 0. S. vi. 64. 22 
 
 Beav. 696. 
 Moroney's Appeal, 0. S. iii. 169. 24 Penna. 
 
 St. 372. 
 Morrell v. Irving Ins. Co., N. S. iii. 404. 6 
 
 Tiff. 447 ; s. c. Id. 429. 
 Morrill v. Noyes, N. S. iii. 18. 56 Maine 468. 
 Morris & Essex Railroad Co. d. Blair, 0. S 
 
 V. 60. 1 Stock. 636. 
 Morris Canal Co. v. Fisher, 0. S. :.i. 423 ; 0. 
 
 S. V. 62. 1 Stock. 667. 
 Morris Canal Co. v. Lewis, 0. S. vi. 428. 1 
 
 Beaslcy 323. 
 Morris v. Piatt, N. S. iv. 623. 32 Conn. 75. 
 Morrison v. Marquardt, N. S. vii. 336. 24 
 
 Iowa 35. 
 Morrison v. Springer, N. S. iii. 270. 15 Iowa 
 
 304. 
 Morrow v. Wood, N. S. xiii. 692. 35 Wis. 59. 
 Morse v. Brainerd, N.S. viii. 604. 41 Yerm. 
 
 550. 
 Morse v. Richmond, N. S. viii. 81. 41 Verm. 
 
 435. 
 Mortimer v. Bell, N. S. v. 310. Law Rep. 1 
 
 Ch. App. 10. 
 Morton v. N. Y. Eye Infirmary, N. S. ii. 672. 
 
 2 Fisher Pat. Cas. 320. 
 Moseley v. Scott, N. S. v. 5P9. 
 
 Mott V, Penna. Railroad Co., 0. S. v. 623. 
 
 30 Penna. St. 9. 
 Moultrie v. Hunt, N. S. i. 148. 9 Smith 
 
 (N. y.) 394. 
 Mouutjoy V. Metzger, N. S. xii. 442. 9 Phila. 
 
 10. 
 Mt. Vernon Bank v. Stone, 0. S. i. 339. 2 
 
 R. L 129. 
 Mowry v. Crocker, 0. S. vi. 737. 6 Wis. 326. 
 Moxley v. Ragun, N. S. xiii. 743. 10 Bush 
 
 166. 
 Mulford V. Bowen, 0. S. iv. 630. 1 Stock. 
 
 797 ; 4 Halst. 751. 
 Mumma's Account, In re, 0. S. v. 489. 
 Murdoek v. Brown, 0. S. vi. 690. 
 Murray v. N. J. Railroad Co., 0. S. i. 496. 
 
 3 Zab. 63. 
 
 Muagrave •>. Benkendorf, N. S. vi. 433. 53 
 
 Penna. St. 310. 
 Musser v. Arch Street Railway Co., 0. S. vii. 
 
 284. 
 Myers v. Croft, N. S. xi. 308. 13 Wall. 2'Jl. 
 Myers v. Life Ins. Co., .N. ;i. is. t2. 
 
1024 
 
 TABLE OF CASES 
 
 Nashua Lock Co. v. Worcester & Nashua 
 
 Railroad Co., N. S. x. 244. 48 N. H. 339. 
 Natioual Bank v. Eliot Bank, 0. SI v. 711. 
 Nebeker v. Cochran, N. 8. xiv. 697. 
 Nelson v. Von Bonnhorst, 0. S. vi. 151. 29 
 
 Penna. St. 354. 
 Nesmith v. Dyeing Co., 0. S. i. 82. 1 Curtis 
 
 130. 
 Newark, Mayor of, v. State, N. S. xiii. 441. 
 
 37 N. J. 415. 
 Newark Plank Road v. Elmer, 0. S. v. 57. 
 
 1 Stock. 754. 
 New England Express Co. «. Me. Cent. Rail- 
 road Co., N. S.ix. 728. 57 Maine 188. 
 New Hampshire, Opinion of Supreme Court 
 
 of, N. S. ii. 740. 44 N. 11. 633. N. S. iv. 
 
 212. 45 N. H. 607. 
 New Haven & Darby Railroad Co. <;. Chap- 
 man, N. S. xii. 80. 38 Conn. 66. 
 New Market v. Smart, N. S. iv. 390. 45 N. 
 
 H. 87. 
 New York & B. Tel. Co. v. De Rutte, N. S. 
 
 V. 407. 1 Daly 547. 
 Now York i Washington Tel. Co. v. Dryburg, 
 
 0.- S. viii. 490. 35 Penna. St. 298. 
 Niagara Ins. Co. v. De Graff, N. S. iii. 489. 
 
 12 Mich. 124. 
 Nicholson v. Tutin, 0. S. vi. 62. 3 K. A J. 159. 
 Nimick v. Ins. Co., N. S. x. 101. 
 Nodine v. Doherty, N. S. v. 346. 46 Barb. 69. 
 Norris t). Doniphan, N. S. iii. 471, 626. 4 
 
 Mete. (Ky.) 385. 
 Norris v. Jackson, N. S. ix. 421. 9 Wall. 125. 
 North American Ins. Co. v. Levy, 0. S. 1. 243. 
 North East Ins. Co. v. Detroit & Cleveland 
 
 Steam Nav. Co., N. S. x. 383. 
 Northern Bank o. Keizer, N. S. v. 76. 2 
 
 Duvall 169. 
 Northern Central Railroad Co. v. Canton Co., 
 
 N. S. viii. 540. 30 Md. 347. 
 North Penna. Railroad Co. v. Rehman, N. S. 
 
 V. 49. 49 Penna. St. 101. 
 North Penna. Railroad Co. v. Stone, 0. S. 
 
 viii. 112. SPhila. 421. 
 Northwestern Iron [Car] Co. v. Hopkins, N. 
 
 S. V. 44. 4 Bissell 51. 
 Northwestern Packet Co. v, Atlee, N. S. xii. 
 
 661. 2 Dill. 479. 
 North Yarmouth v. Skillings, 0. S. viii. 307. 
 
 45 Maine 133. 
 Norton v. Bazett, 0. S, v. 52. 2 Jurist N. 
 
 S. 766. 
 Norton v. Hixon, 0. S. ix. 311. 25 111. 439. 
 Nova Scotia Telegraph Co. v. America Tele- 
 graph Co., N. S. iv. 365. 
 Noyes v. New Haven Railroad Co., N. S. ii. 
 
 347. 30 Conn. 1. 
 Noyes v. Rutland Railroad Co., 0. S. iv. 231. 
 
 27 Verm. 110. 
 Noyes v. Smith, 0. S. v. 616. 28 Verm. 59. 
 
 Oakes d. Spaulding, N. S. vii. 551. 40 Vt. 347. 
 O'Brien v. Baltimore Railroad Co., 0. S. vi. 
 
 361. 3 Phila. 76. 
 O'Callaghan v. Riggs, 0. S. v. 139. 
 Offutt V. Scott, N. S. xii. 575. 47 Ala. N. S. 
 
 104. 
 O'Hanlan v. Great Western Railway, N. S. v. 
 
 244. 118 E. C. L. R. 484. 
 O'Harra, In re, N. S. viii. 113. 
 
 Ohio & Mississippi Railroad Co. v. Ind. & 
 
 Cin. Railroad Co., N. S. v. 733. 
 Ohio 4 Mississippi Railroad v. McPherson, 
 
 N. S. iv. 562. 35 Mo. 13. 
 Ohio V. Buckland, 0. S. v. 123. 5 Ohio St. 
 
 216. 
 Ohio V. Hinchman, 0. S. v. 424. 27 Penna. 
 
 St. 479. 
 Oil Co. V. Densmore, N. S. ix. 96. 64 Penna. 
 
 St. 43. 
 Oler, The Steamer, N. S. xiv. 300. 
 Oliver v. Kauflfman, 0. S. i. 142. 2 Wall. Jr. 
 
 324. 
 O'Meara t>. Dean, N. S. vii. 229. s. c. 47 
 
 111. 120. 
 Oneida Bank v. Hurlbut, 0. S. i. 219. 
 Oologaardt v. Brig Anna, N. S. ix. 475. 
 Opinion of Supreme Court of New Hamp- 
 shire, N. S. iv. 212. 45 N. H.- 607. N. S. 
 
 ii. 740. 44 N. H. 633. 
 Orrett v. Corser, 0. S. v. 320. 21 Beav. 52. 
 Osgood V. Railway Co., N. S. xiv. 506. 6 
 ' Bissell 330. 
 Owners of Mary Washington v. Ayres, N. S. 
 
 V. 692. 1 Abb. 1. 
 
 Packet Co. v. Atler, N. S. xii. 661. 2 Dill- 
 
 1179. 
 Packet Co. v. Railroad Co., N. S. vii. 469. 6 
 
 Wall. 213. 
 Page V. Dennison, 0. S. v. 469. 1 Grant 
 
 377. 
 Painter v. Pittsburgh, N. S. iii. 360. 46 
 
 Penna. St. 21.3. 
 Palmer v. Harris, N. S. viii. 137. 60 Penna, 
 
 St. 156. 
 Palmer v. The Osprey, 0. S. i. 15, 2 Wall. 
 
 Jr. 268. 
 Parker v. Meek, 0. S. v. 493. 3 Sneed 29. 
 Parker b. Siebern, N. S. v. 526. 
 Parks V. Coffee, N. S. xiv. 496. 
 Parish v. Ferris, 0. S. iii. 101. 
 Passaic Manuf. Co. v. Hoffman, N. S. xi. 
 
 105. 3 Daly 495. 
 Paterson & Newark Railroad Co. v. Stevens, 
 
 N. S. X. 165. 34 N. J. 532. 
 Patten v. Patten, N. S. xiv. 733. 
 Patten v. Wiggin, N. S. ii. 401. 51 Maine 
 
 694. 
 Patterson, In re, N. S. vii. 26. 1 Benedict 
 
 448 ; Id. 508, 544. 
 Patterson v. Robinson, 0. S. iii. 240. 25 
 
 Penna. St. 81. 
 Paul ti. Joel, 0. S. vii. 681. 4 H. & N. 365. 
 Paul V. Virginia, N. S. ix. 109. 8 Wall. 168. 
 Paul V. Young, 0. S. iv. 412. 2 Stock. 401. 
 Payson ti. Dietz, N. S. xii. 511. 2 Dill. 504. 
 Peabody t). Hamilton, N. S. xi. 311. 106 
 
 Mass. 217. 
 PearcQ v. Madison & Indianapolis Railroad 
 
 Co., 0. S. vii. 409. 21 How. 441. 
 Peel V. Board of Metropolitan Police, N. S. 
 . V. 98. 44 Barb. 91. 
 Penn v. Atlantic & G. W. Railroad Co., N. S. 
 
 xi. 576. 
 Pennsylvania, The, N. S. xiii. 661. 
 Pennsylvania Railroad Co. v. Books, N. S. 
 
 vii. 624. 57 Penna. St. 339. 
 Pennsylvania Railroad Co, v. Lewis, N. S. 
 
 xiv. 665, 79 Penna. St. 33. 
 
EEPOBTED IN FULL. 
 
 1025 
 
 Pennsylvania Railroad Co. «. McCloskey, 0. 
 
 S. iii. 412. 23 Penna. St. 626. 
 Pennsylvania Railroad Co. d. Zebe, 0. S. viii. 
 
 27. 9 Casey 318. 
 Penny v. Briee, N. S. iv. 433. 114 E. C. L. 
 
 R. 393. 
 Penrose v. Erie Canal Co., 0. S. vii. 126 3 
 
 Phila. 198. 
 People V. Collins, 0. S. ii. 591. 3 Mich. 343. 
 People V. Commissioners of Taxes, N. S. vi. 
 
 467. 4 Wall. 244. 
 People V. Commissioners of Taxes, N. S. ii. 
 
 31. 37 Barb. 635. 
 People V. Commissioners of Taxes, N. S. ii. 
 
 614. 2 Blaoii 620. 
 People V. Commissioners of Taxes of New 
 
 York, N. S. i. 81. 9 Smith (N. Y.) 192; 
 
 s. c. 32 Barb. 509 ; 18 How. 245 ; 20 Id. 182. 
 People V. Comwell [Croswell], N. S. v. 339. 
 
 13 Mich. 427. 
 People V. Dean, N. S. v. 721. 14 Mich. 406. 
 People V. Plagg, N. S. si. 80. 1 Sickels 401. 
 People 1). Garbutt, N. S. vii. 554. 17 Mich. 9. 
 People V. Gerke, 0. S. iv. 604. 5 Cal. 382. 
 People 1). Hilliard, N. S. ii. 274. 29 111. 413. 
 People 1-. Kelley, N. S. i. 534. 10 Smith {N. 
 
 Y.) 74; 24 How. 369; s. o. 12 Abb. Pr. (N. 
 
 Y.) 150; 21 How. 54; Id. 103. 
 People V. Ristenbatt, 0. S. iii. 418. 1 Abb. 
 
 Pr. 268. 
 People V, Salomon, N. S. ix. 232. 54 111. 39. 
 People r. Township Board, N. S. ix. 487. 
 
 20 Mich. 452. 
 People .'. Turner, N. S. x. 366. 55 HI. 280. 
 People V. Tyler, 0. S. viii. 403; 7 Mich. 162; 
 
 see 8 Id. 320. 
 People V. Tyler, N. S. viii. 430. 36 Cal. 522. 
 People ex rel. Attorney-General v. Curtis, N. 
 
 S. xii. 94. s. c. 44 How. 171. 
 People ex rel. Commonwealth Bank v. Com- 
 missioners of Taxes, N. S. iii. 535. 
 People ex rel. Commonwealth Bank v. Com- 
 missioners of Taxes, N. S. iv. 277. 
 People ex rel. Keyes v. Auditor, &c., N. S. 
 
 iii. 332. 33 111. 9. 
 Peoria & Rock Island Railroad Co. v. Mining 
 
 Co., N. S. xii. 277. See 68 111. 489. 
 Peoria & Roek Island Railroad Co. v. Pres- 
 ton, N. S. xii. 242. 35 Iowa 115. 
 Peoria Ins. Co. v. Hall, N. S. iii. 417. 12 
 
 Mich. 202. 
 Perkins v. Portland, Saco and Portsmouth 
 
 Railroad Co., 0. S. viii. 734. 47 Maine 573. 
 Perkins r. Watertown, N. S. xii. 777. 5 Bis- 
 
 sell 320. 
 Perrin v. Lyman's Admr., N. S. x. 188. 32 
 
 Ind. 16. 
 Perry v. Kinley, 0. S. iii. 183. 1 Phila. 605. 
 Perry v. Langley, N. S. vii. 429. See 2 Bank. 
 
 Reg. 180. 
 Perry v. Manufacturing Co., N. S. xiii. 430. 
 
 40 Conn. 313. 
 Pettif., In re, N. S. vii. 695. 2 Bank. Reg. 17. 
 Phila. & Erie Railroad Co. v. Catawissa 
 
 Railroad Co., N. S. vi. 231. 53 Penna. 
 
 St. 20. 
 Phila. & Reading Railroad Co. •>. Derby, 0. 
 
 S. i. 397. 14 How. 468. 
 Phila. A Reading Railroad Co. v. Steamtug 
 
 Gauticr. N. S. xi. 769. 
 65 
 
 Phila. Association for Disabled Firemen v. 
 
 Wood, 0. S. ix. 482. 39 Ponoa. St. 73. 
 Phila. V. Soohan, 0. S. vii. 385. 33 Penna. 
 
 St, 9. 
 Phila. Steam Nav. Co. v. The Delaware, 0. S. 
 
 i. 15. 2 Wall. Jr. 268. 
 Phila. Tow Boat Co. v. Baltimore Railroad 
 
 Co., 0. S. v. 280. s. c. 23 How. 209. 
 Phila., Wil. & Bait. Railroad Co. v. Bower, 
 
 N. S. xiii. 174. 4 Houston 606. 
 Phila., Wil. & Bait. Railroad Co. v. Stinger, 
 
 N. S. xiv. 669. 78 Penna. St. 219. 
 Phillips V. Duncan, 0. S. iii. 304. 
 Phillips V. Hooker, N. S. vii. 40. Phillips Eq. 
 
 193. 
 Phoeaixville v. Phoenix Iron Co., N. S. ii. 
 
 307. 46 Penna. St. 135. 
 Physiok's Estate, N. S. iv. 418. 
 Pierce v. Winsor, N. S. ii. 139. s. u. 2 Sprague 
 
 35. 
 Pilmer v. Branch Bank, N. S. iv. 336. 16 
 
 Iowa 321. 
 Pinkerton v. Manchester & Lawrence Rail- 
 road Co., N. S. i. 96. 42 N. H. 424. 
 Piper V. Gilmore, N. S. iii. 684. 49 Maine 149. 
 Pittsburgh Coal Co. v. Foster, N. S. viii. 368. 
 
 69 Penna. St. 366. 
 Pittsburgh & C. Railroad Co. v. Andrews, N. 
 
 S. xiii. 566. 39 Md. 329. 
 Pittsburgh, Fort W. & Chicago Railroad Co. 
 
 V. Hinds, N. S. vii. 14. 63 Penna. St. 512. 
 Pittsburgh, Fort Wayne & Chicago Railroad 
 
 Co. V. Shaeffer, N. S. viii. 110. 59 Penna. 
 
 St. 350. 
 Plankroad Co. v. Elmer, 0. S. v. 57. 1 Stock. 
 
 754. 
 Plankroad Co. v. Husted, 0. S. iv. 213, 3 
 
 Ohio St. 678. 
 Piatt V. Bentloy, N. S. xi. 171. 
 Poindexter v. Anderson, 0. S. vi. 78. 6 Ohio 
 
 St. 622. 
 Polk V. Fancher, 0. S. vii. 675. 1 Head 336. 
 Pollock V. Lester, 0. S. vi. 59. 11 Hare 266. 
 Pomeroy v. Benton, N. S. xiv. 306. 67 Mo. 
 
 531. 
 Port V. United States, 0. S. iv. 389. 19 Law 
 
 Rep. 12; Dev. C. CI. 20, 103. 
 Porter v. Mount, N. S. iii. 493. 41 Barb. 561. 
 
 N. S. V. 292. 45 Barb. 422. 
 Potter II. Pettis, 0. S. ii. 678. 2 R. I. 483. 
 Potts V. Plunkett, 0. S. vii. 666. 4 Ir. Jur. 
 
 N. S. 202. 
 Powell V. Ins. Co., 0. S. i. 110. 13 B. Monroe 
 
 311. 
 Powell V. Penna. Railroad Co., 0. S. vii. 348. 
 
 32 Penna. St. 414. 
 Powell's Trust, In re, 0. S. vii. 311. 
 Powers V. Mortee, 0. S. iv. 427. 
 Pragoff f. Heslep, 0. S. i. 747. 
 Prentiss v. Shaw, N. S. viii. 712. 56 Maine 
 
 427. 
 Preston v. Hull, N. S. xii. 699. 23 Grattan 
 
 600. 
 Profllet V. Hall, 0. S. viii. 661. 14 La. Ann. 
 
 524. 
 Propeller Fremont, The, N. S. x. 340. 2 
 
 Bissell 416. . „ „ „„ 
 
 Prothro v. Orr, 0. S. i. 612. 12 Geo. 36. 
 Proud V. Bates, N. S. v. 171. 12 Law Times 
 
 N.S. 565. 
 
1026 
 
 TABLE OF CASES 
 
 Prouty B. Hudson, 0. S. iii. 40. 
 
 Providence Saving Institution v. Boston, N. 
 
 S. ix. 272. 101 Mass. 675. 
 Puoliett V. United States, 0. S. iv. 459. 19 
 
 Law Kep. 18; Dev. C. CI. 103. 
 Pullan V. Kinsinger, N. S. ix. 557. 
 Pym i>. Northern Railway Co., N. S. ii. 234. 
 
 110 E. C. L. K. 759. 
 
 Quick's Ex'rs v. Fisher, 0. S. iv. 684. 1 
 Stock. 802 ; 4 Halst. 674; Id. 778. 
 
 Eaoe, In re, 0. S. v. 537. 90 B. C. L. E. 186. 
 Railroad Company v. Andrews, N. S. xiii. 
 
 566. 39 Md. 329. 
 Railroad Company v. Barber, 0. S. vi. 534. 
 
 5 Ohio St. 641. 
 Railroad Company ». Blair, 0. S. v. 60. 1 
 
 Stock. 635. 
 Railroad Company v. Books, N. S vii. 624. 
 
 67 Penna. St. 339. 
 Railroad Company v. Bower, N. S. xiii. 174. 
 
 4 Houston 506. 
 Railroad Company v. Canton Co., N. S. viii. 
 
 540. 30 Md. 347. 
 Railroad Company v. Caster, 0. S. viii. 420. 
 
 13 Ind. 164. 
 Railroad Company v. Catawissa Railroad 
 
 Co., N. S. vi. 231. 53 Penna. St. 20. 
 Railroad Company v. Chapman, N. S. xii. 
 
 80. 30 Conn. 56. 
 Railroad Company v. Chenowith, N. S. vi. 
 
 93. 62 Penna. St. 382. 
 Railroad Company v. Collins, N. S. v. 265. 
 
 2 Duvall 114. 
 Railroad Company v. Cooper, 0. S. vii. 158. 
 
 33 Penna. St. 278. 
 Railroad Company v. Derby, 0. S. 1. 397. 
 
 14 How. 468. 
 Railroad Company v. East Tenn. & Georgia 
 
 Railroad Co., 0. S. ii. 303. 14 Geo. 327. 
 Railroad Company v. Godfrey, N. S. xiv. 290. 
 Railroad Company v. Hedger, N. S. xiii. 
 
 145. 9 Bush 646. 
 Railroad Company u. Higgins, N. S. v. 715. 
 
 36 Mo. 418. 
 Railroad Company v. Hinds, N. S. vii. 14. 
 
 53 Penna. St. 512. 
 Hailroad Company v. Hummel, 0. S. v. 244. 
 
 27 Penna. St. 99. 
 Railroad Company v. Ind. <fc Cin. Railroad 
 
 Co., N, S. V. 733. 
 Bailroad Company, In re, N. S. xii. 447. 
 Railroad Company v. Jones, 0. S. vi. 346. 
 Railroad Company v. Lewis, N. S. xiv. 065. 
 
 79 Penna. St. 33. 
 Railroad 'Company v. Lincoln Co., N. S. x. 
 
 458. 1 Dill. 314. 
 Railroad Company v. MoCloskey, 0. S. iii. 
 
 412. 23 Penna. St. 526. 
 Railroad Company v. MoClurg, N. S. vii. 
 
 277. 56 Penna. St. 294. 
 Railroad 'Company v. McPherson, N. S. iv. 
 
 562. 35 Mo. 13. 
 Railroad Company v. Mining Co., N. S. xii. 
 
 277. 
 Railroad Company v. New Jersey, N. S. iv. 
 
 328. 31 N. J. 531. 
 .Railroad Company v. Nichols, N. S. xii. 32. 
 
 .8 Kansas 505, 
 
 Railroad Company r, Patton, 0. S. vi. 467. 
 
 31 Miss. 156. 
 Railroad Company v. People, N. S. x. 585. 
 
 56 ni. 366. 
 Railroad Company v. Preston, N. S. xii. 242. 
 
 35 Iowa 115. 
 Railroad Company v. Rehman, N. S. v. 49. 
 
 49 Penna. St. 101. ; 
 
 Railroad Company v. Rutherford, N. S. vii. 
 
 476. 29 Ind. 82. 
 Railroad Company v. Shaeffer, N. S. vm. 
 
 110. 59 Penna. St. 350. 
 Railroad Company v. Shanly, N. S. xii. 5fl0. 
 
 107 Mass. 568. . 
 
 Railroad Company «-. Skinner, 0. S. i. 97. 
 
 19 Penna. St. 298. 
 Railroad Company v. Steamtug Gautier, N. 
 
 S. xii. 769. 
 Railroad Company v. Stevens, N. S. x. 165. 
 
 34 N. J. 532. 
 Railroad Company v. Stinger, N. S. xiv. 659. 
 
 78 Penna. St. 219. 
 Railroad Company v. Stone, 0. S. viii. ]12._ 
 Railroad Company v. Thomas, N. S. viii. 
 
 164. 42 Ala. N. S. 672. 
 Railroad Company v. Wetmore, N. S. ix. 
 
 621. 19 Ohio St. 110. 
 Railroad Company v. Whiteneck, 0. S. v. 
 
 214. 8 Ind. 217. 
 Railroad Company v. Zobe, 0. S. viii. 27. 9 
 
 Casey 318. 
 Railway Company v. Bohn, N. S. xii. 746. 
 
 27 Mich. 503. 
 Railway Company v. Glynn, 0. S. vii. 693. 
 
 102 B. C. L. R. 652. 
 Ramsey's Estate, 0. S. i. 94. 
 Randall v.. Roche, N. S. 2. 663. 30 N. J. 
 
 220'. 
 Randell v. Trimen, 0. S. v. 609. 86 E. C. 
 
 L. R. 786. 
 Rasquin v. Knickerbocker Stage Co., 0. S. 
 ix. 696. 12 Abb. Pr. (N. Y.) 324; 21 
 How. 293. 
 Rawls V. American Ins. Co., N. S. iii. 167. 
 
 13 Smith (N. Y.) 282; 36 Barb. 357. 
 Ray V. Adden, N. S. xi. 702. 50 N. H. 82. 
 Ray, In re, N. S. vii. 283. 2 Benedict 63. 
 Ray 1!. Schooner Milwaukee Belle, N. S. ix. 
 
 311. 2 Bissell 197. 
 Raymond v. Middleton, 0. S. vi. 377. 29 
 
 Penna. St. 529. 
 Raymond v. Whitney, 0. S. v. 123. 5 Ohio 
 
 St. 201. 
 Rea V. Smith, 0. S. v. 98. 2 Handy 193. 
 Reeder v. George's Creek, 0. S. iii. 232. 
 Reeder v. Purdy, N. S. vi. 104. 41 111. 279. 
 Reeves v. Del., Lack. & AV. Railroad Co., 0. 
 
 S. vi. 666. 30 Penna. St. 454. 
 Reginas. Berry, 0. S. vii. 380. Bell C. C. 95. 
 Regina v. Clarke, 0. S. v. 637. 90 E. C. L. 
 
 R. 186. 
 Regina «. Featherstone, 0. S. ii. 695. Dearsly 
 
 C. C. 369. 
 Regina v. Gardner, N. S. ii. 178. 7 Law 
 
 Times N. S. 471. 
 Regina v. Leggatt, 0. S. v. 57. 83 E. C. L. 
 
 R. 781. 
 Regina v. Moore, 0. S. i. 37. 16 Jurist 760. 
 Regina v. Stokes, 0. S. i. 435. 17 Jurist 
 192. 
 
REPORTED IN FULL. 
 
 1027 
 
 Reichard v. Manhattan Life Ins Co., N. S. i. 
 
 547. 31 Mo. 518. 
 Renter [Renter] v. Telegraph Co., 0. S. v. 
 
 566. 88 E. C. L. R. 341. 
 Reynolds i\ Bank of Indiana, N. S. i. 669. 
 
 18 Ind. 467. 
 Reynolds v. Insurance Co., N. S. i. 715. 34 
 
 Md. 280. 
 Rex V. Lomman, 0. S. vi. 745. 3 PMla. 287. 
 Rhecm i'. Carlisle Deposit Bank, N. S. xiii. 
 
 499. 76 Penna. St. 132. 
 Rhodes v. Dunbar, N. S. vii. 412. 57 Penna 
 
 St. 274. 
 Rioe V. Ruddiman, JST. S. i. 615. 10 Mich. 
 
 125. 
 Richards' Admr. v. Davis, 0. S. vii. 483 
 Richards v. Miller, N. S. x. 727. 
 
 111. 417. 
 Richards t'. Phoenix Iron Co., N. S. vii. 356. 
 
 57 Penna. St. 105. 
 Richards i'. Rose, 0. S. ii. 178. 9 Exoh. 218. 
 Richards r. Sanford, 0. S. v. 313. 2 E. D. 
 
 Smith (N. Y.) 349. 
 Richardson v. Goddard, 0. S. viii. 278. 23 
 
 How. 28. 
 Richardson v. Rowland, N. S. xiv. 78. 40 
 
 Conn. 565. 
 Richman v. Lippinoott, 0. S. ix. 369. 5 
 
 Dutch. 44. 
 Richmond Railroad Co., v. Jones, 0. S. vi. 
 
 346. 
 Rieker r. Freeman, N. S. xi. 692. 50 N. H. 
 
 420. 
 Rickit's Trust, In re, 0. S. vi. 60. 11 Hare 
 
 299. 
 Riddle «. Stevens, N. S. v. 651. 32 Conn. 
 
 378. 
 Rieman v. Fisher, 0. S. iv. 433. 
 Right of Suffrage of Persons of African De- 
 scent, 0. S. vi. 123. 
 Ripley v. N. J. Railroad Co., N. S. v. 537. 
 
 31 N. J. 388. 
 Rivers v. Gregg, 0. S. Hi. 88. 5 Rich. Bq. 
 
 274. 
 Roberts ti. Hull, N. S. x. 760. 37 Conn. 205. 
 Roberts v. Nelson, N. S. x. 115. 8 Blatohf. 
 
 74. 
 Roberts v. Smith, 0. S. v. 750. 2 H. A N. 
 
 213. 
 Robinson, Ex parte, 0. S. iv. 617. 1 Bond 39. 
 Robinson, Ex parte, N. S. xiii. 435. 19 Wall. 
 
 505. 
 Robinson v. Harbour, N. S. ix. 355. 42 Miss. 
 
 795. 
 Robinson v. Life Assurance Co., N. S. viii. 
 
 166. 52 Barb. 450 ; s. c. 3 Hand 54. 
 Robinson v. Weeks, N. S. viii. 554. 56 Maine 
 
 102. 
 Roehe v. Washington, N. S. ii. 170. 19 Ind. 
 
 63. 
 Rodney v. Illinois Central Railroad Co., 0. 
 
 S. vi. 439. 19 III. 42. 
 Rogers v. Gillinger, 0. S. vi. 430. 
 Rogers v. Meranda, 0. S. vii. 35. 7 Ohio St. 
 
 179. 
 Rogers v. Omaha Hotel Co., N. S. xiv. 246. 
 
 4 Neb. 54. 
 Rooney o. Soule, N. S. xiii. 36. 45 Verm, 303. 
 
 Rorabaok v. Stobbins, N. S. vi. 696. 33 How; 
 
 278 ; 4 Abb. Ct. App. Dec. 100 : 3 Keyes 
 
 62. , ' -^ 
 
 Rosenfekl, Jr., In re, N.S. viii. 44. 2 Bank. 
 
 Reg. 49. 
 Rosenfleld, In re, N. S. vii- 618. 1 Bank. 
 
 Reg. 161. 
 Ross 1'. Inncss, N. S. iv. 281. 35 111. 487. 
 llossell V. Cotton, 0. S. vii. 405. 31 Penna. 
 
 St. 525. 
 Rowse V. Washington Univ., N. S. vii. 390. 
 
 42 Mo. 308. 
 Ruckman v. King, N. S. ix. 146. 20 N. J. 
 
 Eq. 316. 
 Bundle v. Canal Co., 0. S. i. 326. 14 How. 
 
 80. 
 Runyan v. Reed, 0. S. vi. 305. 
 Russell V. Randolph, 0. S. iii. 560. 11 Texas 
 
 460. 
 Ruth, Id re, N. S. vii'. 157. 
 
 166. 
 Ruth, In re, N, S. x. 767. 32 Iowa 250. 
 Ryan v. Cumberland Valley Railroad Co., 
 
 0. S. iii. 698. 23 Penna. St. 384. 
 
 Salmon ti. Railroad Co., N. S. xiv. 554. 38 
 
 N. J. 5. 
 Samson Steamtug, 0. S. iii. 337. 3 Wall. 
 
 Jr. 14. 
 Samuel v. Wiley, N. S. xi. 755. 50 N. H. 
 
 353. 
 Sanborn v. Herring, N. S. vi. 457. 
 Sander v. Logan, 0. S. ix. 475. 2 Fisher 
 
 Pat. Cas. 167. 
 Savery v. King, 0. S. v. 506. 5 H. L. Cas. 
 
 627. 
 Savings Bank v. Ekey, N. S. xii. 625. 61 
 
 Mo. 272. 
 Savings Fund v. Philadelphia, 0. S. iv. 669. 
 
 31 Penna St. 176. 
 Savings Institution v. Boston, N. S, ix. 272. 
 
 101 Mass. 575. 
 Sawyer v. United States Casualty Co., N. S. 
 
 viii. 233. 
 Schafer i;. Bank, N. S. viii. 684. 69 Penna. 
 
 St. 149. 
 Schneider v. Evans, N. S. ix. 536. 25 Wis. 
 
 241. 
 Schneider v. Life Ins. Co., N. S. viii. 349. 
 
 24 Wis. 28. 
 Schnepf, In re, N. S. vii. 204. 2 Benedict 
 
 72. 
 Schollenberger v. Brinton, N. S. iii. 591. 52 
 
 Penna. St. 9. 
 School Board v. Haokman, N. S. xi. 527. 48 
 
 Mo. 243. 
 Schooner Brilliant v. United States, N. S. ii. 
 
 334. 2 Black 635. 
 Schriver v. Meyer, 0. S. i. 227. 19 Penna. 
 
 St. 87. 
 Schuylkill County v. Copley, N. S. x. 783. 
 
 67 Penna. St. 386. 
 Scoby V. Gibson, N. S. i. 221. 17 Ind. 672. 
 Scott V. Bentley, 0. S. iii. 666. 1 Kay & 
 
 Johns. 281. 
 Scott, In re, N. S. ix. 349. 1 Abb. 336. 
 Secomb v. Wade, 0. S. i. 290. s. c. 14 B. 
 
 Monroe 324. 
 
1028 
 
 TABLE OF CASES 
 
 Second Ave. Railroad Co., In re, N. S. xii. 
 
 447. 
 Second Nat. Bank v. Nat. State Bank, N. S. 
 
 xiv. 281. 10 Bush 367. 
 Seeley v. People, N. S. li. 344. 27 111. 173. 
 Seiss [Seip] v. Storch, N. S. T. 536. 52 
 
 Penna. St. 210. 
 Sellew'a Appeal, N. S. x. 708. 36 Conn. 
 
 186. 
 Semmes v. Insurance Co., N. S. viii. 673. 6 
 
 Blatoh. 455. N. S. xi.418. 13 Wall. 158. 
 Shakers, Society of, v. Underwood, N. S. 
 
 xiii. 211. 9 Bush 609. 
 Shardlow v, Newark Plankroad Co., 0. S. 
 
 Ti. 6. 
 Shardlow v. New Jersey Railroad Co., 0. S. 
 
 vi. 6. 
 Sharpless v. Mayor of Philadelphia, 0. S. il. 
 
 27, 85. 21 Penna. St. 147. 
 Shaw V. Spencer, N. S. viii. 219. 100 Mass. 
 
 382 ■ 
 Sheeh'y v. Adarene, N. S. viii. 326. 41 
 
 Verm. 541. 
 Sheffey v. Vint, 0. S. ii. 712. 
 Shepard, In re, N. S. vii. 484. 1 Bank. Eeg. 
 
 lis; 
 
 Sherman v. Mott, N. S. xi. 716. 5 Benedict 
 
 372. 
 Sherwood v. Andrews, N. S. v. 688. 
 Shoenberger v. Watts, N. S. i. 553. 5 Phila. 
 
 61. 
 Shute V. Goslee, 0. S. iii. 465. 
 Sifford, Ex parte, 0. S. v. 659. 
 Simong v. Southwestern Railway Bank, 0. 
 
 S. ii. 646, 5 Rich. Bq. 270. 
 Siner's Appeal, 0. S. vi. 751. 36 Penna. St. 
 
 247. 
 Sleight V. Lawson, 0. S. vi. 62. 3 K. & J. 
 
 292. 
 Smedley v. Conaway, 0. S. v. 442. 
 Smelting Co. v. Tipping, N. S. v. 104. s. c. 
 
 116 B. C. L. R. 608; see Law Rep. 1 Ch. 
 
 App. 66. 
 Smith o. Averill, N. S. ix. 47. 7 Blatoh. 29. 
 Smith V. Brazelton, N. S. ix. 762. 1 Heisk. 
 
 44. 
 ■ Smith V. Brotherline, N. S. -v. 60. 62 Penna. 
 
 St. 461. 
 Smith V. Countryman, N. S. iv. 102. 3 Tiff. 
 
 665. 
 Smith V. Kendall, 0. S. ix. 754. 9 Mich. 
 
 241. 
 Smith V. Kramer, 0. S. i. 363. 
 Smith V. Lathrop, N. S. iii. 107. 44 Penna. 
 
 St. 326. 
 Smith V. Milwaukee & Superior Railroad Co., 
 
 0. S. ix. 656. 
 Smith V. Thaokerah, N. S. v. 761. Law Rep 
 
 1 C. P. 663. 
 Smyzer v. The Minnie, 0. S. vi. 328. 
 Snead v. Watkins, 0. S. v. 667. 87 B. C. L. 
 
 R. 267. 
 Solicitors' Ins. Co. u. Lamb, N. S. iii. 686. 
 
 1 H. & Mill. 716. 
 Solomon «. Vinters' Co., 0. S. vii. 622. 4 H. 
 
 & N. 585.' 
 Spangler, In re, N. S. ii. 598. 11 Mich. 
 
 298. 
 Sparks t>. Farmers' Bank, N. S. ix. 365. 
 
 Speer v. School Directors, N. S. iv. 661. 59 
 
 Penna. St. 160. 
 Spitler V. James, N. S. ix. 605. 32 Ind. 202. 
 Spratley v. Insurance Co., N. S. xiv; 188. 
 
 11 Bush 443. 
 Sprott V. United States, N. S. xiv. 43. 29 
 
 Wall. 459. 
 Stanton v. Haverhill Co., N. S. xiv. 469. 47 
 
 Verm. 172. 
 Stanton v. Leland, 0. S. vii. 264. 4 E. D. 
 
 Smith (N. Y.) 88. 
 Starkweather v. Insurance Co., N. S. x. 333.- 
 State V. Abernathy, N. S. xii. 261. 
 State V. AUmond, 0. S. iv. 533. 2 Houston 
 
 612. 
 State V. Babcock, N. S. i. 753. 30 N. J. 29. 
 State V. Baltimore & Ohio Railroad Co., N. 
 
 S. V. 397. 24 Md. 84. 
 State V. Buckley, N. S. xiii. 355. 40 Conn, 
 
 246. 
 State V. Carroll, N. S. xii. 165. 38 Conn. 
 
 449. 
 State V. Crawford, N. S. xiv. 21. 11 Kinsas 
 
 32. 
 State' V. Goold, N. S. v. 143. 53 Maine 279. 
 State V. Litchfield, N. S. x. 376. 68 Maina 
 
 267. 
 State ex rel. McCarty v. Pepper, N. S. viii, 
 
 665. 31 Ind. 76. 
 State V. McDonnell, 0. S. viii. 609. 32 Verm. 
 
 491. 
 State Mutual Ins. Co. ■». Roberts, 0. S. vii. 
 
 229. 31 Penna. St. 438. 
 State Nat. Bank v. Preedman's Trust Co., N. 
 
 S. X. 786. 2 Dill. 11. 
 State ex rcl. Newell v. Purdy, N. S. xiv. 90. 
 
 36 Wis. 213. 
 State V. Patterson, N. S. xii. 647. 45 Verm. 
 
 308. 
 State V. Patton, 0. S. iii. 552. 10 La. Ann. 
 
 299. 
 State V. Pike, N. S. xi. 233. 49 N. H. 399. 
 State V. Pritchard, N. S. xii. 614. 36 N. J. 
 
 101. 
 State V. Ritt, N. S. vii. 88. 
 State V. Russell, N. S. x. 232. 
 State ex rel. Sanford v. Morris Common 
 
 Pleas, N. S. xii. .32. 36 N. J. 72. 
 State V. Shacklett, N. S. v. 664. 37 Mo. 280. 
 State ex rel. Vail v. Draper, N. S. xi. 552. 50 
 
 Mo. .353; see 48 Id. 213. 
 State ex rel. Waring v. Medical Society, N. 
 
 S. viii. 633. s. c. 38 Ga. 608. 
 State V. White, N. S. x. 232. 
 State V. Wagner, N. S. xiii. 106. 61 Maine 
 
 178. 
 State V. Young, N. S. v. 679. 32 N. J. 29 
 Steamboat Hine v. Trevor, N. S. vi. 686. 4 
 
 Wall. 565. 
 Steamer Oler, The, N. S. xiv. 300. 
 Steamtug Samson, 0. S. iii. 337. 3 Wall. Jr. 
 
 14. 
 Steere v. Ellis, 0. S. ii. 631. 1 Handy 70. 
 Stein V. Burden, 0. S. v. 729. 29 Ala. N. S. 
 
 127. 
 Stevens, In re, N. S. x. 523. 2 Bissell 373. 
 Stevens v. Rutland Railroad Co., 0. S. i. 164. 
 
 29 Verm. 545. 
 [ Stevens v. State, N. S. ix. 530. 31 Ind. 485. 
 
REPORTED IN FULL. 
 
 1029 
 
 Stevenson e. Lawrence, N. S. ii. 409. 5 
 
 Phila. S8. 
 Stewart e. Soudder, 0. S. ii. 80. 4 Zab. 96. 
 Stewart v. Spencer, 0. S. i. 520. 1 Curtia 
 
 157. 
 St. Helen's Smelting Co. v. Tipping, N. S. v. 
 
 104. s. c. 116 E. C. L. R. 608 ; see Law 
 
 Kep. 1 Ch. App. 66. 
 Stilwell, In re, N. S. xi. 706. 7 Bank. Reg. 
 
 226. 
 St. John V. Express Co. N. S. x. 777. 1 Wood 
 
 612. 
 St. Julien v. Douniol, 0. S. i. 46. 
 Stokeley i-. Thompson, 0. S. viii. 231. 34 
 
 Penna. St. 210. 
 Stokes V. County of Soott, 0. S. ix. 458. 10 
 
 Iowa 166. 
 Stone V. Railroad Co., U. S. xiv. 74. 63 HI. 
 
 394. 
 Stout V. Railroad Co., N. S. xi. 226. See 2 
 
 Dill. 294. 
 Stoutenburg v. Tompkins, 0. S. v. 126. 1 
 
 Stock. 332. 
 Btowe B. Thomas, 0. S. ii. 210. 2 Wall. Jr. 
 
 547. 
 Strasburger v. Burk, N. S. xiii. 607. 
 Stratton v. New Haven Railroad Co., 0. S. 
 
 V. 310. 2 E. D. Smith (N. 7.) 184. 
 Street v. State, N. S. ix. 749. 43 Miss. 1. 
 Strong «. Carrington, N. S. ii. 287. 
 Strong V. Grand Trunk Railroad Co., N. S. 
 
 vi. 680. 15 Mich. 206 
 Stuart 1-. Hines, N. S. xi. 86. 33 Iowa 60. 
 Stucke V. Milwaukee Railroad Co., 0. S. vii. 
 
 732. 9 Wis. 202. 
 Studwell V. Cooke, N. S. xii. 223. 38 Conn. 
 
 549. 
 Stunt V. Steamboat Ohio, 0. S. iv. 49. s. c. 
 
 10 Ohio. St. 582. 
 Sturges V. Knapp, O. S. vii. 203. 31 Verm. 1. 
 Sturges V. United States, 0. S. iv. 335; Dev. 
 
 C. CI. 222 ; Id. 244. 
 Sullivan v. Reading Railroad Co., 0. S. vi. 
 
 342. 30 Penna. St. 234. 
 Snnbury & Erie Railroad Co. v. Cooper, 0. 
 
 S. vii. 158. 33 Penna. St. 278. 
 Sunbnry & Brie Railroad Co. v. Hummel, 0. 
 
 S. V. 244. 27 Penna. St. 99. 
 Sutherland, In re, N. S. viii. 39. 1 Deady 416. 
 Sutton ». The Albatross, 0. S. i. 87. 2 Wall. 
 
 Jr. 327. 
 Swasey u. Antram, K. S. xiiL 577. 24 Ohio 
 
 St. 87. 
 Sweet V. Bcnning, 0. S. iii. 684. 81 B. C. 
 
 L. R. 459. 
 Swett V. Cutts. N. S. xi. 11. 50 N. H. 439. 
 Swiafen v. Swinfen, 0. S. v. 320. 86 B. C. 
 
 L. R. 485. 
 Symonds v. Barnes, N. S. xi. 421. 59 Maine 
 
 191. 
 
 Tarrant v. Webb, 0. S. .. 306, 509. 86 B. C. 
 
 L. R. 797. 
 Tartar v. Spring Creek Mining Co., 0. S. V. 
 
 188. 5Cal. 395. 
 Tatham v. Wardens of Phila., 0. S. v. 378. 
 
 2 Phila, 246. 
 Tavlor V. Beat, 0. S. ii. 560. 78 B. C. L. R. 
 
 487. 
 
 Taylor v. Carryl, 0. S. vi. 646. 20 How. 683. 
 Taylor „. Laird, 0. S. v. 508. 1 H. A N. 
 
 266. 
 Taylor v. Steamboat Commonwealth, N. S. 
 
 xiii. 502 ; N. S. xiv. 86. 
 Taylor v. Thompson, N. S. vi. 174. 42 111. 9. 
 Taylor v. Winters, N. S. v. 438. 6 Phila. 
 
 126. 
 Teaff V. Hewitt, 0. S. i. 723. 1 Ohio St. 611. 
 Telegraph Co. v. America Telegraph Co., N. 
 
 S. iv. 365. 
 Telegraph Co. ^. Carew, N. S. vii. 18. 15 
 
 Mieh. 626. 
 Telegraph Co. ^. Do Rutte, N. S. v. 407. 1 
 
 Daly 547. 
 Telegraph Co., v. Dryburg, 0. S. viii. 490. 
 
 36 Penna. St. 298. 
 Telfer v. Northern Railroad Co., N. S. iii. 
 
 665. 30 N. J. 188. 
 Tennant v. Heathfield, 0. S. .. 317. 21 
 
 Beav. 266. 
 Texas v. Southern Pacific, 0. S. viii. 78. 24 
 
 Texas 80. 
 Thayer v. Wellington, N. S. iv. 87. 9 Allen 
 
 283. 
 Thomas v. Crossin, 0. S. iii. 207. 
 Thomas v. Mahone, N. S. xii. 433. 9 Bush 
 
 111. 
 Thomas v. Snyder, 0. S. ix. 698. 39 Penna. 
 
 St. 317. 
 Thompson u. Alexander, 0. S. iii. 543. 14 
 
 Ga. 259. 
 Thompson v. Cragg, 0. S. viii. 496. 24' 
 
 Texas 582. 
 Thompson v. Keereber, 0. S. vii. 50. 
 Thompson v. Ross, 0. S. viii. 188. 1 Law 
 
 Times N. S. 43. 
 Thompson v. Tenley, N. S. xiii. 99. 
 Thompson v. Thompson, N. S. vi. 26. s. o. 
 
 17 Ohio St. 649 ; 18 Id. 73. 
 Thompson v. Vance, 0. S. vii. 222. 1 Met- 
 calfe (Ky.) 669. 
 Thorington v. Smith, N. S. viii. 739. 8 
 
 Wall.l. 
 Thornton, In re, N. S. viii. 42. 2 Bank. 
 
 Reg. 68. 
 Thornton's Ex'rs v. Thornton's Heirs, N. S. 
 
 vi. 341. 39 Verm. 122. 
 Thurston v. Ludwig. 0. S. v. 606. 6 Ohio 
 
 St. 1. 
 Ticknor's Estate, In re, N. S. iv. 269. 13 
 
 Mich. 44. 
 Tippecanoe County, Commissioners of, i^. 
 
 Reynolds, N. S. xiii. 376. 44 Ind. 509. 
 Tobin V. Walkinshaw, 0. S v. 106. 1 McAl- 
 lister 26. 
 Todd V. Austin, N. S. viii. 9. 34 Conn. 78. 
 Todd t). Lee, N. S. i. 057. 15 Wis. 366; see 
 
 16 Id. 480. 
 Tollbridge Co. v. Osborn, N. S. ix. 73. 35 
 
 Conn. 7. 
 Tomlinson v. Derby, N. S. xi . 543. 41 
 
 Conn. 268. 
 Tooney ». London Railway Co., 0. S. vi. 
 
 316. 91 B. C. L. R. 146. 
 Towboat Co. v. Baltimore Railroad Co., 0. 
 
 S. V. 280. s. c. 23 How. 209. 
 Towboat Co. v. The Delaware, 0. S. i. 15. 2 
 
 Wall. Jr. 268. 
 
1C30 
 
 TABLE OF CASES 
 
 Tracy v. Atherton, N. S. i. 739. 35 Verm. 
 
 . 52. 
 
 Transportation Co. v. Downer, N. S. a. 360. 
 
 H Wall. 129. ; 
 
 Transportation Co. v. Moore, 0. S. vii. 15, 
 
 352. 5 Mich. 368. 
 Trebilcock v. Wilson, N. S. xi. 161. 12 
 
 Wall. 687. 
 Trevor »). Wood, N. S. vii. 215. 9 Tiffany 
 
 307; 3 Abb. Pr. 355; s. c.41 Barb. 255; 
 
 26 How. 451. 
 Trowbridge v. Carlin, 0. S. vi. 740. 12 La. 
 
 Ann. 882. 
 Trustees of Iowa College ii. Hill, N. S. i. 744. 
 
 12 Iowa 462. 
 Tucker v. Watson, N. S. vi. 220. 
 Tunno v. The Betsina, 0. S. v. 406. 
 Turner, In re, N. S. v. 234. 12 Law Times 
 
 N. S. 695. 
 Turner v. Withers, N. S. iv. 723. 23 Md. 18. 
 Turnpike Co. v. Budge, N. S. xii. 157. 72 
 
 Penna. St. 278. 
 Twells V. Penna. Railroad Co., N. S. iii. 728. 
 Tyler v. Todd, N. S. x. 627. 36 Conn. 218. 
 
 Union Bank v. New Orleans, N. S. v. 555. 
 Union Branch Kailroad Co. v. East Tennessee 
 
 & Georgia Railroad Co., 0. S. ii. 303. 14 
 
 Geo. 327. . 
 Union Church v. Saunders, 0. S. iv. 378. 1 
 
 Houston 100. 
 Union Life Ins. Co. v. McMillen, N. S. xiii. 
 
 610. 24 Ohio St. 67. 
 Union Mnt. Life Ins. Co. v. Wilkinson, N. S. 
 
 xi. 485. 13 Wall. 222. 
 Union Pacific Railroad Co. v. Lincoln Co., 
 
 N. S. X. 458. 1 Dill. 314. 
 Union Pacific Railroad Co. v. Nichols, N. S. 
 
 xi. 32. 8 Kansas 505. 
 United States u. Bait. & Ohio Railroad Co., 
 . N. S. vii. 757. 
 United States v. Clayton, N. S. x. 737. 2 
 
 Dill 219. 
 United States •<;. Cooke, N. S. xii. 682. 17 
 
 Wall. 168. 
 United States v. Cruikshank, N. S. xiii. 630. 
 
 1 Wood 308.- 
 United States v. Doss, N. S. xi. 320. 
 United States v. Duluth, N. S. x. 449. 1 
 
 Dill. 469. 
 United States v. Fairchilds, N. S. vii. 306 
 
 1 Abb. 74. 
 United States v. Fifty-six Barrels, N. S. vi. 
 
 32. 1 Abb. 93. 
 United States v. Hall, 0. S. ix. 232. 
 United States v. Hundred Barrels of Cement, 
 
 N. S. iii. 735. 
 United States v. Koehersperger, 0. S. ix. 
 
 145. 
 United States ex rel. Learned «. Burlington, 
 
 N. S. ii. 394, 498. 
 United States v. Lowe, N. S. x. 455. 13 Int. 
 
 Rev. Reo. 124. 
 United States v. Maxwell, N. S. xiv. 433. 
 United States v. Morris, 0. S. ii. 348. 
 United States v. Petersburgh Judges of 
 
 Elections, N. S. xiv. 106,233. 
 United States v, Prescott, N. S. ix. 481. 2 
 
 Abb. 169. 
 United States ». Probasco, N. S. ii. 419. 
 
 United States v Propeller Cusbman, N. S. 
 
 V. 286. 1 Bissell 490. 
 United States v. Propeller Sun, N. S. i. 277. 
 
 1 Bissell 373. 
 United States v. Quantity of Rags, N. S. vii. 
 
 369. 
 United States v. Quitman, 0. S. ii. 645. 
 United States v. Railroad Bridge Co., 0. S, 
 
 iii. 603. 6 McLean 617. 
 United States v. Reiter, N. S. iv. 534. 
 United States v. Rhodes, N. S. vii. 233. 1 
 
 Abb. 28. 
 United States v. Schooner Etta, N. S. 
 
 iv. 38. 
 United States v. Six Fermenting Tubs, N. S. 
 
 vii. 751. 1 Abb. 268. 
 United States v. Smith, 0. S. v. 268. 1 Bend 
 
 68. 
 United States v. Stark, N. S. xi. 37. 15 Int. 
 
 Rev. Rec. 48. 
 United States v. Steamboat Seneca, N. S. i. 
 
 281. 1 Bissell 371. 
 United States v. Superior Court [Eininger, 
 
 In re], N. S-. ix. 297. 7 Blatch. 169. 
 United States v. The Barque Anna, 0. S. ii, 
 
 421. 
 United States v. The Francis Hatch, N. S. iv. 
 
 289. 
 United States v. Thirty-three Barrels, N. S. 
 
 vii. 365. 1 Abb. 311. 
 United States v. Treas. of Muscatine Co., N. 
 
 S. ix. 415. 2 Abb. 63. 
 United States v. Wells, N. S. xi. 424. 15 Int. 
 
 Rev. Rec. 66. 
 United States v. A^^ijliamson, 0. S. iii. 729 ; 
 
 0. S. iv. 5. 
 University of London v. Yarrow, 0. S. vi. 
 
 169. 23 Beav. 169. 
 
 Van Allen v. Nolan, N. S. v. 609 ; 3 Wall. 
 
 673. See 4 Id. 244. 
 Vandall v. Dock Co., N. S. x. 506. 40 Cal. 83. 
 Vanderpool v. Crystal Palace, 0. S. iii. 493. 
 
 s. c. 16 B. Monroe 302. 
 Van Dyke v. Van Dyke, N. S. viii. 462. 60 
 
 Penna. St. 481. 
 Van Metter v. Mitchell, 0. S. ii. 278. See 2 
 
 Wall. Jr. 311. 
 Vaughn v. Vaughn, N. S. iv. 735. 
 Veazie v. Dwinel, N. S. iii. 715. 50 Maine 
 
 479. 
 Vicksburg Railroad Co. ». Patton, 0. S. vi. 
 
 457. 31 Miss. 156. 
 Vilas V. Burton, 0. S. iv. 168. 27 Verm. 66. 
 Vint V. Heirs of King, 0. S. ii. 712. 
 Virden v. Caroline, 0. S. vi. 222. 
 Vogler V. Montgomery, N- S. xiii. 244. 
 Vogt, Carl, In re, N. S. xii. 94. 
 Von Bories v. Ins. Co., N. S. i. 680. 8 Bush 
 
 133. 
 Voorhees v. Frisbie, N. S. xii. 108. 25 Mich. 
 
 476. 
 Vose V. Allen, 0. S. ii. 563. s. e. 3 Blatch. 
 
 289. 
 
 Wadhams v. Gay, N. S. xiv. 419. 
 
 Walker 1). Cincinnati, N. S. xi. 346. 21 Ohio 
 
 St. 14; ] Cinn. S. C. R. 121. 
 Wall 1). The Royal Saxon, 0. S. ii. 324. 
 Wallace v. Chesney, 0. S. iv. 307. 
 
REPORTED IN FULL. 
 
 1031 
 
 Wallace v. Wallace, N. S. i. 42. 
 
 Walling V. Porter, N. S. ix. 618. 35 Conn. 
 
 183. 
 Walmsley v. Milne, 0. S. Tiii. 3?3. ST B. 
 
 C L. R. 115. 
 Walsh, In re, 0. S. ii. 542. 
 Walsh V. People, N. S. xii. 617. 65 111. 58. 
 Walter ». People, N. S. vi. 746. 60 Barb. 
 
 144. 
 Ward V. Chamberlain, 0. S. v. 330. s. c. 5 
 
 McLean 622. 
 Ward V. Chamberlin, 0. S. ix. 171. s. c. 2 
 
 Black 430. 
 Ward V. Smith, N. S. viii. 354. 7 Wall. 447. 
 Ward 0. State, N. S. Ix. 424. 31 Md. 279. 
 Ward ti. Warner, 0. S. ix. 114. S Mich. 
 
 508. 
 Ware v. Kichardson, 0. S. ii. 485. 3 Md. 
 
 505. 
 Warlow t). Harrison, 0. S. viii. 241. s. c. 102 
 
 E. C. L. R. 295. 
 Warner v. Erie Railroad Co., N. S. viii. 209. 
 
 12 Tiffany 468. s. c. 49 Barb. 558. 
 Warner v. Heiden, N. S. xi. 279. 28 Wis. 
 
 517. 
 Warner v. Warner's Estate, N. S. iv. 351. 
 
 37 Verm. 366. 
 Warren v. Harding, 0. S. i. 408. 2 R. 1. 133. 
 Warren v. Paul, N. S. iv. 157. 22 Ind. 276. 
 Washington Sav. Bank v. EkeyJ N. S. xii. 
 . 625. 61 Mo. 272. 
 
 Watson V. Jones, N. S. xi. 430. 13 Wall. 679. 
 Watson ti. Marks, 0. S. ii. 167. 
 Webster v. Dillon, 0. S. vi. 174. 
 Weckler v. Bank, N. S. xiv. 609. 42 Md. 
 
 581. 
 Weed V. Dayton, N. S. xiii. 603. 40 Conn. 
 
 293. 
 Weeks v. Billings, N. S. xiv. 739. 55 N. H. 
 
 371. 
 Weeks v. Milwaukee, 0. S. viii. 624. 10 
 
 Wis. 242. 
 Weimer v. Sloane, 0. S. iv. 174. 6 McLean 
 
 259 
 Welch v. Durand, N. S. x. 566. 36 Conn. 
 
 182. 
 Welch V. Ste. Genevieve, N. S. x. 512. 1 
 
 Dill. 130. 
 Wells V. N. Y. Central Railroad Co., 0. S. vi. 
 
 713. 26 Barb. 641 ; s. c. 10 Smith (N. Y.) 
 
 181. 
 Wells & Son, In re, N. S. vii. 163. 
 Westerman v. Westerman, N. S. ix. 690. 
 Western Ins. Co. v. Cropper, 0. S. vii. 237. 
 
 32 Penna. St. 351. 
 Western Saving Fund v. Philadelphia, 0. S. 
 
 iv. 669. 31 Penna. St. 175. 
 Western Transportation Co. e. Downer, N. S. 
 
 X. 360. 11 Wall. 129. 
 Westropp, In re, 0. S. viii. 192. 5 Jurist N. 
 
 S. 1318. 
 Wharton v. Clements, N. S. viii. 299. 
 Wheeden v. Camden & Amboy Railroad Co., 
 
 0. S. iv. 296. 2 Phila. 23. 
 Wheeler v. San Francisco & Alameda Rail- 
 road Co., N. S. vi. 606. 31 Cal. 46. 
 Wheeler v. Wheeler, N. S. xiv. 684. 47 Verm. 
 
 637. 
 White, In re, 0. S. i. 280. 
 
 White V. Madison, N. S. ii. 663 ; 26 How. 
 
 481; 12 Smith (N.Y.) 117. 
 White V. White, 0. S. viii. 637. 1 Law 
 
 Times N. S. 197. 
 Whitfield V. Rogers, 0. S. iii. 44. 26 Miss. 
 
 84. 
 Whithead 1). Keyes, N. S. i. 471; 1 Allen 
 
 350 ; 3 Allen 496. 
 Whiting V. Railroad Co., N. S. ix. 156. 25 
 
 Wis. 167. 
 Whitmore v. South Boston Iron Co., N. S. i. 
 
 403. 2 Allen 62. 
 Whittier v. Fire Ins. Co., N. S. xiv. 621. 55 
 
 N. H. 141. 
 Wieler v. Schilizzi, 0. S. iv. 502. 84 E. C. 
 
 L. R. 619. 
 Wightmauu. Steamboat George Albree, 0. S. 
 
 iv. 119. 
 Wilckens v. Willet, N. S. iv. 404. 1 Koyes 
 
 621; 4 Abb. Ct. App. Dec. 596; s. o. 21 
 
 How. 40 ; 12 Abb. Pr. 319. 
 Wilds V. Hudson River River Railroad Co., 
 
 N. S. ii. 76. 10 Smith (N. Y.) 430; 23 
 
 How. 492 ; s. c. 33 Barb. 603 ; 2 Tiffany 
 
 315. 
 Wiley V. Bank, N. S. xiv. 342. 47 Verm. 
 
 646. 
 Wilkins u. Earle, N. S. iv. 742. 3 Robertson 
 
 352 ; 19 Abb. Pr. 190 ; s. c. 5 Hand 172. 
 Wilkinson v. Fairrie, N. S. ii. 242. 7 Law 
 
 Times N. S. 699. 
 Williams v. Coward, 0. S. vi. 316. 1 Grant 
 
 21. 
 Williams v. Holland, 0. S. ix. 701. 22 How. 
 
 137. 
 Williams v. Reynolds, N. S. v. 370. 118 E. 
 
 C. L. R. 495. 
 Williams v. Stoops, 0. S. iv. 158. 27 Penna. 
 
 St. 213. 
 Williamson v. Hall, N. S. x. 466. 
 Williamson, In re, 0. S. iii. 741. 0. S. iv. 
 
 27. 26 Penna. St. 9. 
 Williamson v. Jones, N. S. iv. 651. 
 Wilson V. Bailey, 0. S. iii. 432. 1 Handy 
 
 177. 
 Wilson V. Newport Dock Co., N. S. v. 748. 
 
 Law Rep. 1 Exeh. 177. 
 Wilson V. Railway Co., N. S. viii. 398. 56 
 
 Maine 60. 
 Wilson II. Seibert, N. S. viii. 608. See 7 
 
 3ush 29. 
 Wilson V. Stewart, 0. S. vi. 372. 3 Phila. 
 
 51. 
 Window Glass Co., In re, N. S. viii, 419. 1 
 
 Bank. Beg. 113. 
 Winston v. Westfeldt, 0. S. ii. 619. 22 Ala. 
 
 N. S. 760. 
 Winter v. Delaware Mutual Ins. Co., 0. S. 
 
 ix. 304. 38 Penna. St. 176. 
 Winter v. Insurance Co., 0. S. vi. 572. 30 
 
 Penna. St. 334. 
 Wisconsin v. Duluth, N. S. xi. 709. 2 Dill. 
 
 406. 
 Wiswell V. Starr, 0. S. ix. 439. 48 Maine 
 
 401: 50 Maine 381. 
 Wood V. Bell, 0. S. V. 318. 85 B. C. L. K. 
 
 772. 
 Wood V. Blanchard, 0. S. vi. 434. 19 111. 
 
 38. I 
 
1032 
 
 TABLE OF CASES KEPOETED IN FULL. 
 
 Wood i>. Little, 0. S. ii. 353. 35 Maine lOV. 
 Woodfolk V. Nasliville Railroad Co., 0. S. i. 
 
 650. 2 Swan 422. 
 Woodman v. Kilbourn Manuf. Co., N. S. vi. 
 
 238. 1 Abb. 158. 
 Woodman v. Spencer, N. S. xiv. 411. 64 N. 
 
 H. 507. 
 Woodruff V. Parham, N. S. ix. 25. 8 Wall. 
 
 123. 
 Woods V. Insurance Co., N". S. xii. it. 50 
 
 Mo. 112. 
 Woodson V. Fleck [Fleet], N. S. ix. 436. 2 
 
 Abb. 15. 
 Wright V. Sbumway, 0. S. ii. 20. 1 Bissell 
 
 23. 
 
 Wright V. Stiltz, N. S. ti. 471. 27 Ind. 
 
 338. 
 Wynne, In re, N. S. ix. 627. 4 Banli. Keg. 5. 
 
 Yarmouth, Inhabitants of, v. Trustees, 0. S. 
 
 i. 696. 34 Maine 411. 
 Yendo v. Wheeler, 0. S. iii. 306. 9 Texas 
 
 408. 
 York & Hoover, In re, N. S. x. 36. 1 Abb. 
 
 603 ; 4 Bank. Reg. 156. 
 York County Insurance Co. v. Brooks, N. 
 
 S. iii. 399. 61 Maine 506. 
 
 Zabriskie v. Haokensack A N. Y. Railroad 
 Co., N. S. vi. 420. 18 N. J. Eq. 178. 
 
TABLE OF ABSTRACT CASES 
 
 'IN WHICH THE ENTIRE OPINION IS NOT GIVEN, BUT ONLY THE 
 
 ABSTRACTS OR HEAD NOTES: WITH THE VOLUME AND 
 
 PAGE OP THE STATE OE OTHER REPORTS, IN WHICH 
 
 THESE CASES ARE REPORTED IN FULL. 
 
 Where no other reference is given Oum The Law Eegistek, the case is not reported elsewhere. 
 
 Abbott V. Berry, N. S. vi. 383. 46 N. H. 369. 
 Abbott V. Converse, N. S. ii. 380. 4 Allen 530. 
 Abbott V. May, N. S. xiii. 463. 50 Ala. 97. 
 Abby V. Christy, N. S. yll. 512. 49 Barb. 266. 
 Abel V. Alexander, N. S. xiv. 63. 45 Ind. 523. 
 Abeles v. Cohen, N. S. xi. 52, 268. 8 Kans. 180. 
 Abels 11. McKeen, N. S. vii. 767. 3 0. E. Green 
 
 462. 
 Abemathy v. Bonzman, 0. S. lii. 55. 24 Ala. 
 
 189 
 Abernethy v. Wayne Co. Branch Bank, 0. S. 
 
 iv. 697. 5 Ohio St. 266. 
 Ackley v. Railway Co., N. S. xlv. 648. 36 Wis. 
 
 252. 
 Adams v. Adams, N. S. xiv. 525. 21 Wall. 185. 
 Adams v. Avery, O. S. i. 53. 19 L. T. (C. B.) 63. 
 Adams v. Cosby, N. S. xiv. 579. 48 Ind. 153. 
 Adams v. Crowell, N. S. vii. 576. 40 Verm. 31. 
 Adams v. Johnson, O. S. iii. 638. 15 111. 345. 
 Adams v. Lee, N. S. xiv. 458. 31 Mich. 440. 
 Adams v. McKesson's Exec'r, N. S. vii. 63. 53 
 
 Peuna. St. 81. 
 Adams v. Michael, N. S. xiii. 197. 38 Md. 123. 
 Adams V. People, N. S. Ix. .')8. 47 111. .376. 
 Adams v. Royal M. S. Packet Co., O. S. vii. 508. 
 
 28 L. J. C. P. 33. 
 Adams v. Van Alstyne, N. S. iii. 58. 11 E. P. 
 
 Smith (N. Y.) 232. 
 Adains v. Vose, O. S. iii. 58. 1 Gray 51. 
 Adams Express Co. v. Schlessinger, N. S. xiv. 
 
 196. 75 Penna. St. 246. 
 Adams's Appeal, N. S. iv. 254. 47 Penna. St. 94. 
 Adley CCelfey) v. Gray, N. S. v. 255. 37 Verm. 
 
 136. 
 jEtna Ins. Co. v. Aldrxch, N. S. iii. 570. 12 E. P. 
 
 Smith (N. Y.) 92. 
 Aiken v. Bridgman, N. S. v. 31.5. 37 Verm. 249. 
 Aiman v. Stout, N. S. ii. 503. 42 Penna. 114. 
 Aina, The, O. S. iii. 126. 18 .Tur. 681. 
 Akin V. Morgan, N. S. xiii. 62, 128. 65 Barb. 473. 
 Albany N. R. K. Co. v. Brownell, N. S. ii. 58. 10 
 
 E. P. Smith (N. Y.) 345. 
 Albee v. Cole, N. S. vi. 716. 39 Verm. 319. 
 Alden v. Garver, N. 6. iv. 448. 32 111. 32. 
 Alden v. N. Y. Cent. B. R. Co., N. S. ill. 498. 
 
 12 E. P. Smith (N. Y.) 102. 
 Alder, Adm'r v. Buckley, O. S. i. 381. 1 Swan 
 
 60. 
 Aldrich v. Hagan, N. S. xi. 723. 50 N. H. 60. 
 Aldrich v. Stockwell, N. S. v. 57. 9 Allen 45. 
 Alexander v. Paxson, N. S. Iv. 192. 47 Penna. 
 
 St. 12. 
 Alexanders). Sun Mut. Ins. Co., N. S. vii. 574. 
 
 49 Barb. 475. „ 
 
 Alexander v. Whipple, N. S. v. 701. 45 N. H. 
 
 Alexander's Cotton, N. S. iv. 576. 2 Wall. 404. 
 
 Alicia, N. S. viii. 446. 7 Wall. 671. 
 Allegheny City's Appeal, N. S. ii. 312. 41 Penna. 
 
 St. 60. 
 Allegheny County Homes. Case, N. S. xiv. 753. 
 
 77 Penna. St. 77. 
 Allegheny, The, N. S. ix. 441. 9 Wall. 522. 
 Allen v. Centre Valley Co., 0. S. i. 670. 21 
 
 Conn. 130. 
 Allen t). Clark, N. S. xiii. 194. 66 Barb. 663. 
 Allen V. Everly, N. S. xiv. 58. 20 Ohio St. 97. 
 Allen J). Gardiner, N. S. ii. 443. 7 R. 1. 22. 
 Allen V. Henderson, N. S. v. 256. 49 Penna. 
 
 St. 333. 
 Allen V. Hubert, N. S. v. 192. 49 Penna. St. 
 
 259 
 Alleii V. Massey, N. S. xiii. 330. 17 Wall. 361. 
 Allen V. Robbius, N. S. ii. 442. 7 R. I. 33. 
 Allen V. United States, N. S. xiii. 326, 336. 17 
 
 Wall. 207. 
 Allen V. Valley Co., O. S. i. 570. 21 Conn. 130. 
 AUentown v. Kramer, N. S. xiii. 527. 73 Penna. 
 
 St. 406. 
 Alleraian (Allamon)t). Mayor of Albany, N. S. 
 
 iv. 502. 43 Barb. 33. 
 Altrueter v. Hudson River R. R. Co., O. S. v. 
 
 309. 2 E. D. Smith 151. 
 Amelie. The. N. S. vii. 317. 6 Wall. 18. 
 Am. Express Co. v. Haggard, N. S. vi. 118, 124. 
 
 37 111. 465. 
 American Bank v. Wall, N. S. ix. 120. 56 Me. 
 
 167. 
 American Exchange Bank v. Blanchard, N. S. 
 
 iii. 667. 7 Allen 333. 
 American Ex. Bank v. Webb, N. S. i. 633. 36 
 
 Barb. 291. 
 American Guano Co. v. The United States Gu- 
 ano Co., N. S. V. 252. 44 Barb. 23. 
 American Ins. Co. v. Gilbert, N. S. xiii. 460. 27 
 
 Mich. 429. 
 American Life Ins. Co. v. Isett's Adm'r, N. S. 
 
 xiii. 711. 74 Penna. St. 176. 
 American L. Thread Co. v. Howland, N. S. xi. 
 
 4.59. 61 Barb. 273. 
 Amerman u.Wiles, N. S. xiii. 194. 9 C. E. Green 
 
 13. 
 Ames V. Harper, N. S. vi. 774. 48 Barb. 66. 
 Ames V. Port Huron Log-driving and Boom- 
 ing Co.. N. S. ii. 570. 6Mich.266. 
 Amev's Appeal. N. S. v. 122. 49 Penna. St. 126. 
 Amies v. Kelsey. 0. S. i. 309. Bail, C.per Crom . J. 
 Ammldown v. Ball, N. S. iv. 311. 8 Allen 293. 
 Amoskeag Manuf. Co. v. Barnes, N, S. viii. 410. 
 
 48 N. H. 25. 
 Amoskeag Manuf Co. v. Goodale, N. S. vi. 2iiH. 
 
 46N. H. 53. „ ^ 
 
 Amsdeu v. Manchester, N. S. iii. 318. 40 Barb. 
 
 158. 
 
 1033 
 
1034 
 
 TABLE OF ABSTEACT CASES. 
 
 Ancona v. Marks, N. S. i. 512. SI L. J. Exch. 163. 
 Anderson v. Allison, O. S. i. 260; O. S. ii. 122. 
 Anderson v. Lane, N. S. x. 205. 32 Ind. 102. 
 Anderson v. Itadcliffe, 0. S. vii. 608. 28 L. J. 
 
 Q. B. 32. 
 Anderson v. St. Louis, N. S. x. 602. 47 Mo. 
 
 479. 
 Andress v. Commis. of NorOiern Liberties, 0. 
 
 S. ii. 571. *► 
 
 Andrew v. Spurr, N. S. iv. 310. 8 Allen 412. 
 Andrews d. Lyons, N. S. Ti. 120. 11 Allen 349. 
 Andrews v. VarreU, N. S. v. 702. 46 N. H. 17. 
 Anewalt's Appeal, N. S. ii. 605. 42 Penna. St 
 
 414. 
 Angrave v. Stone, N. S. v. 667. 45 Barb. 35. 
 Annapolis, &c.. Railroad Co. v. Gantt, N. S. 
 
 xiii. 781. 39Md. 115. 
 Anonymous, N. S. xiii. 66. 9 C. E. Green 19. 
 Anson v. Dreher, N. S. xiv. 286. 35 Wis. 615. 
 Anthony v. Eddy & Arnold, N. S. viii. 445. 6 
 
 Kans. 127. 
 Anthony v. Wade, N. S. vi. 439. 1 Bush 110. 
 Appel V. Woltmann, N. S. vi. 248. 38 Mo. 194. 
 Appleby v. Brown, N. S. ii. 68. 10 E. P. Smith 
 
 (N. Y.) 143. 
 Appledorn v. Streeter, N. S. x. 403. 20 Mich. 9. 
 Appleton V. Bacon, N. S. iii. 65. 2 Black 699. 
 Aqueduct Corporation v. Chandler, N. S. v. 
 
 186. 9 Allen 159. 
 Arding v. Lomater, 0. S. iii. 702. 24 L. J. 80. 
 Ardis V. Printup, N. S. ix. 641. 39 Ga. 648. 
 Arend v. Steamship Co., N. S. xii. 408. 64 
 
 Barb. 118. 
 Arms V. Conant, N. S. v. 124. 36 Verm. 744. 
 Armstrong v. Burnet, O. S. iv. 127. 24 L. J. Ch. 
 
 473. 19 Jurist 765. 
 Armstrong v. Grant, N. S. x. 604, 669. 7 Kans. 
 
 285. 
 Armstrong ». Penna. E. E. Co., N. S. xiv. 700. 
 . 9 Vroom 1. 
 
 Armstrong v. Ross, N. S. ix. 323. 5 C. B. Green 
 . 109. •, 
 
 Armstrong v. Smith. N. S. v. 380. 44 Barb. 120. 
 Armstrong v. Stoue and Wife, 0. S. iii. 51. 9 
 
 Grat. 102. 
 Armstrong v. Tuttle, N. S. iv. 120. 34 Mo. 432. 
 Armstrong u. Ware, 0. S. i. 635. 20 Penna. St. 
 
 619. . 
 Armstrong County v. Brinton, N. S. iv. 444. 47 
 
 Penna. St. 367. 
 Armstrong County v. Clarion Co., N. S. x. 796. 
 
 66 Penna. St. 218. 
 Arnold v. Hudson Riv. Railroad Co., N. S. vii. 
 
 381. 49 Barb. 108. 
 Aronson v. CI. & P. E. E. Co., N. S. xii. 406. 70 
 
 Penna. St. 68. 
 Arrington v. Liscom et al., N. S. viii. 123. 34 
 
 Cal. 
 Ash V. Dawnay, O. S. 1. 309. 20 L. T. (Exch.) 103. 
 Ash V. People, N. 8. ii. 696. 7 Cooley 347, 
 Ash, Adm^r v. Hohler (Holder), N. S. v. 448. 
 
 36 Mo. 163. 
 Ashburner v. Balchen, O. S. i. 183. 3 Selden 
 
 262. 
 Ashley v. Root, N. S. ii. 378. 4 Allen 604. 
 Ashmore v. Penna. Towing Co., N. S. xiv. 699. 
 
 9 Vroom 13. 
 Ashton V. Bayard, N. S. xii. 792. 71 Penna. St. 
 
 139. 
 Ashton's Appeal, N. S. xiii. 395. 73 Penna. St. 
 
 153. 
 Aspden's Adm'r v. Aspden, O. S. i. 377. 14 
 
 How. 25. 
 Atchison v. Challis (Challiss), N. S. xi. 775. 9 
 
 Kans. 603. 
 Aten V. Stewart, O. S. Iv. 766. 6 Ohio St. 257. 
 Athenaeum Life Ins. Co. v. Pooley, 0. S. vii. 
 . 509. 28 L. J. Ch. 119. 
 Atherton v. McQunester, N. S. vi. 250. 46 N. 
 
 H. 205. 
 Atkins V. Albree, N. S. vi. 507. 12 Allen 359. 
 Atkins V. Sleeper, N. S. iii. 698. 7 Allen 487. 
 Atlantic & G. W. R. C. v. Campbell, 0. S. Iv. 
 . 630. 4 Ohio St. 683. 
 Atlantic & Ohio R. R. C. v. SuUivant, 0. S. iv. 
 
 700. 5 Ohio St. 276. 
 
 At.tachment against A. S. Hewitt, N. S. xiv. 
 
 327. 10 C. E. Green 210. 
 Attorney General v. Boatman S. Inst., N. S. x. 
 
 743. 47 Mo. 160. 
 Attorney General v. Brown, N. S. xiii. 60. 9 
 
 C. E. Green S9. 
 Attorney General v. Davis, N. S. ix. 196. 44 
 
 Mo. 129. 
 Attorney General v. Pittsburgh R. R. Co.. N. S. 
 
 viii. 631. 68 Penna. St. 26. 
 Attorney General v. Steward, N. S. ix. 387. 5 
 
 C. E. Green 416. 
 Attorney General v. Terry, N. S. xiii. 591. 29 
 
 L. T. N. S. 716. 
 Atwood V. Impson, N. S. ix. 320. 5 C. E. Green 
 
 160. 
 Auburn City Bank v. Leonard, N. S. iii. 255. 
 
 40 Barb. 119. 
 Auburn Exch. Bank v. Fitch, N. S. vii. 60. 48 
 
 Barb. 344. 
 Audenried v. Betteley, N. S. iii. 62. 5 Allen 
 
 382. 
 Auditors of Wayne County v, Benoit, N. S. x, 
 
 541. 20 Mich. 176. 
 Audsley v. Horn, O. S. vii. 568. 28 L. J. Ch. 
 
 293. 
 Audubon v. Excelsior Ins. Co.. N. S. iv. 182, 
 
 187. 13 E. P. Smith (N. Y.) 216. 
 Aurentz v. Porter, N. S. viii. 61. 56 Penna. St. 
 
 116. 
 Aurora v. Eeed, N. S. xii. 195. 57 111. 29. 
 Aurora v. West, N. S. viii. 260 ; N. S. viii. 254. 
 
 7 Wall. 82. 
 Avery v. Haokley, N. S. xiv. 316. 20 Wall. 
 
 407. 
 Ayer v. Ayer, N. S. viii. 636. 41 Verm. 302, 
 Ayres v. Western E. R. Cor., N. S. vi. 773, 719. 
 
 48 Barb. 132. 
 
 Baboock v. Dill, N. S. v. 185. 43 Barb. WT. 
 Badger v. Badger, N. S. iv. 506. 2 Wall. 87. 
 Badger v. River Dun Nav. Co., O. S. vii, 512. • 
 
 28X. J. Q. B. 118. 
 Bagley v. Clark, N. S. ii. 567. 7 Bosw. 94. 
 Bagot V. State sc rd. Deunison, N. S. x. 749. 
 
 33 Ind. 262. 
 Bagsdale v. Hagy. O. S. iii. 53. 9 Grat. 409. 
 Bailey v. Bodenham, N. S. iv. 308. 16 C. B. N. 
 
 S 288 
 Bailey v. Buell, N. S. x. 606. 69 Barb. 168. 
 Bailey v. Bussing, N. S. i. 187. 29 Conn. 1. 
 Bailey v. Hope Ins. Co., N. S. ix. 122. 56 Me. 
 
 474. 
 Bailey v. Lltten, Admr., N. S. xiv. 395. 5 Ala. 
 
 282 
 Bailey d. Railroad Co., N. S. xiii. 327. 17 Wall. 
 
 96. 
 Baines v. Holland, O. S. iii. 702. 3 Com. L. 
 
 Rep. 593. 
 Baird v. Porter, N. S. xi. 269. 67 Penna. St. 105. 
 Baker v. Baker, N. S. viii. 609. 41 Verm. ,65. 
 Baker v. Brintnall, N. S. viii. 380. 52 Barb. 
 
 188 
 Baker v. Chase, N. S. xiv. 707. 55 N. H. 61. 
 Baker v. Collins, N. S. iv. 605. 9 Allen 253. 
 Baker v. Gee, N. S. iv. 54. 1 Wall. 3.33. 
 Baker v. Gilman, N. S. viii. 311. 52 Barb. 26. 
 Baker i'. Haynes, O. S. iv. 701. 5 Ohio St. 253. 
 Baker v. Pratt, N. S. ii. 63. 4 Allen 158. 
 Baker v. Seahorn. O. S. i. 379. 1 Swan 54. 
 Baker v. Spencer, N. S. x. 347. 58 Barb. 248. 
 Baker v. The City of Elizabeth, N. S. xiv. 258. 
 
 8 Vroom 142. 
 Baldwin v. Bank of Newburg, N. S. iii. 296. 
 
 1 WaU. 234. 
 Baldwin v. Hatch, N. S. vii. 446. 54 Me. 167 
 Baldwin v. Haws, N. S. ii. 378. S. C. N. Y. 36 
 
 Barb. 69. 
 Baldwin v. Leonard, N. S. vi. 563. 39 Verm. 
 
 260. 
 Baldwin v. Walker, O. S. i. 665. 21 Conn. 168. 
 Bales (Bates) v. Equitable Ins. Co., N. S. ix. 
 
 776. 10 Wall. 33. 
 Ball V. Bullard; N. S. viii. 381 . 52 Barb. 141. 
 Ball V. Wyeth, N. S. iv. 185, 188, 8 Allen 275. 
 
TABLE OF ABSTRACT CASES. 
 
 1035 
 
 Ballacorkish Mining Co. v. Harrison, N. S. 
 
 xiii. 592. 29 L. T. N. S. 658. 
 Ballard v. Burgett, N. S. ix. 62. 1 Hand (N. Y.) 
 
 314. 
 Ballentine v. White, N. S. xiv. 755. 77 Penna. 
 
 St. 20. 
 BaUou V. Farnum, N. S. vi. 58. 11 Allen 73. 
 Ballou V. Famum, N. S. iv. 766. .9 Allen 47. 
 BaUou V. Hale, N. S. vii. 265. 47 N. H. 347. 
 Ballon V. O'Brien, N. S. x. 669. 20 Mich. 804. 
 Baltimore City Pas. E. R. Co. v. Wilkinson, N. 
 
 S. ix. 453. SOMd. 224. 
 Baltimore & Ohio E.E. Co. v. Dorsey, N. S. xii. 
 
 735. 37Md. 19. 
 Baltimore & Ohio R. E. Co. v. Fitzpatrick, N. 
 
 S, xii. 257. 36 Md. 619, 
 Baltimore & Ohio E. E. Co. «. Fitzpatrick, N. 
 
 S. xi. 596. 35 Md. 82. 
 Baltimore & Ohio E. E. Co. v. Glenn, N. S. viii. 
 
 247. 28 Md. 287. 
 Baltimore & Ohio E. E. Co. «. Schumacher, N. 
 
 S. viii. 699. 29 Md. 168. 
 Baltimore & Ohio R. E. Co. v. Strauss, N. S. 
 
 xii. 731. 37 Md. 237. 
 Baltimore & Ohio E. R. Co. v. The State to use 
 
 of Dougherty, N. S. xii. 259. 36 Md. 366. 
 Baltimore & Ohio E. E. Co. ■!;. The State, N. S. 
 
 ix.453. SOMd. 47. 
 Baltimore & Ohio E. E. Co. v. Worthington, 
 
 N. S. T. 447. 21 Md. 275. 
 Baltimore Steam-Boat Co. v. Atkins & Co., O. S. 
 
 ii. 608. 22 Penna. St. 622. 
 Bancroft v. Boston, Worcester E. R. Co., N. S. 
 
 vl. 61. 11 Allen 34. 
 Bancroft v. Consen, N. S. vii. 121. 13 Allen 50. 
 Bancroft ttWinspear, N. S. v. 505. 44 Barb. 209. 
 Bank v. Albright, 0. S. i. 633. 21 Penna. St. 228. 
 Bank v. Bank, N. S. vii. 758. 40 Verm. 377. 
 Bank v. Bank, N. S. xii. 120. 14 Wall. 9. 
 Bank v. Bank, N. S. i.| 636. 36 Barb. 332. 
 Bank.ti. Bank, N. S. iii. 701. 41 Barb. 343. 
 Bank v. Barksdale. N. S. v. 442. 36 Mo. 563. 
 Bank v. Beale, N. S. ii. 564. 7 Bosw. 611. 
 Bank v. Blanchard, N. S. iii. 667. 7 Allen 333. 
 Bank v. Board of Supervisors of Broome Co., 
 
 N. S. iii. 56. 11 E. P. Smith (N. Y.). 312. 
 Bank v. Bowman. N. S. v. 182. 43 Barb. 639. 
 Bank v. Brooke, N. S. xiv. 395. 40 Md. 249. 
 Bank v. Broome County, N. S. iii. 56. 11 E. P. 
 
 Smith (N. Y.). 312. 
 Bank v. Brown, N. S. iv. 256. 
 Bank v. Burt. N. S. ii. 558. 5 Allen 113. 
 Bank v. Campbell, N. S. xii. 119. 14 Wall. 87. 
 Bank v. City of Rochester, N. S. iii. 639. 41 
 
 Barb. 341. 
 Bank v. Clark, N. S. vi. 774. 48 Barb. 26. 
 Bank v. Clark. N. S. vi. 246. 46 N. H. 134. 
 Bank v. Qarke, N. S. viii. 250. 28 Md. 145. 
 Bank v. Commissioners of Taxes, N. S. v.128. 
 43 Barb. 494. „ „, „ 
 
 Bank v. Commonwealth, N. S. ix. 452. 9 Wall. 
 353 
 
 Bank v. Crafts, N. S. U. 379. 4 Allen «7. 
 
 Bank v. Culver, N. S. xiv. 642. 54 N. H 327. 
 Bank v. Curtis. N. S. ii. 315. 37 Barb. 31/. 
 Bank v Davis, N. S. xiv. 62. 24 Ohio St. 190. 
 Bank ». DeKo, N. S. ix. 327. 37CaL538. 
 Bank v. Durant, N. S. xi. 66. 7 CE. Green 35. 
 Bank v. Eldred. N. S. ix. 509. 9 Wall. 644^ 
 Bank v. Ettinge (Eltinge), N. S. ix. 55. 1 Hand 
 
 /jj Y ) 391 
 Bank v' Ever. N. S. viii. 630. 68 Penna. St. 97. 
 llnl V. Fairbanks, N. S, x 197 49 N. H. 181. 
 Bank v. Famum. N. S. u. 444. 5 Allen 10. 
 Bank v. First National Bank, N. S. ix. 317. 30 
 
 Bank'ii. First National Bank of Baltimore, N. 
 
 S. xiv. 259. 40Md. 269. ,„ ^ ^ „,, 
 Bank v. Fitch. N. 8. vii. 60. 48 Barb. M4. 
 Bank v. Foster, N. S. v. 381. ^44 Barb. 87. 
 Bank V. Gale. N. S. ix. Ml. 42 Verm. 27 
 Bank v. Garten, N. 8. in. 634. 34 Mo 119. 
 Bank V. Greenwood, N. S. i 318 2 Allen 484. 
 Bank v. Gregory, N. 8. vi. 57. 46 Barb. 98 
 Bank It. Gregory. N. S. vii. 122 49 Barb 165 
 Bank v. Grindstaff, N. S. xiv. 61. 4o Ind. 158. 
 
 Bank v. Gross, N. S. v. 379. 50 Penna. 224. 
 Bank v. Hnlsey, N. S. ix. 713. 57 Barb. 249. 
 Bank v. Ha.sbik, N. S. xi. 720. 61 N. H. 116. 
 Bank v. Hastings, N, S. iii. 378. 16 Wis. 75. 
 Bank v. Hoge, N. S. ii. 663. 7 Bosw. 643. 
 Bank v. Indianapolis, N. 8. xiv. 57. 45 Ind. 5. 
 Bank V. Ingraham, N. S. x, 412. 68 Barb. 290. 
 Bank v. Jacobs, N. S. ii. 126. 10 Coolev 349. 
 Bank v. Jaggers. N. S. ix. 578, 681. 81 Md. 38. 
 Bank v. Keene, N. 8. vi. 249. 53 Me. 108. 
 Bank v. Kennedy ,N. S. xiii. 327, 833. 17 Wall . 19. 
 Bank v. Leonard, N. S. iii. 2.')6. 40 Barb. 119. 
 Bank v. McElrath, N. 8. i. 696. 2 Beasley 24. 
 Bank v. Monteath, N. S. iii. 700. 12 E. P. Smith 
 
 (N. Y.) 505. 
 Bank v. Mott, N. 8. iii. 60. 39 Barb. 180. 
 Bank v. National Bank of Baltimore, N. 8. xii. 
 
 51. 36 Md. 
 Bank v. Nelson, N. 8. viii. 309. 38 Ga. 391. 
 Bank v. Northrup, N. S. xi. 264. 7 C. E. Green 68. 
 Bank v. Page, N. 8. x. 800. 5 Hand. (N. Y.) 
 
 453. 
 Bank v. Portsmouth, N. S. vi. 314, 
 Bank v. Price, N. S. x, 472. 33 Md. 487. 
 Bank v. Eea, N. 8. xii. 600. 64 Barb. 175. 
 Bank v. Eelf, O. S. i. 442. 20 Penna. St. 435. 
 Bank v. Eutland Co. Bank, N. S. vii. 758. 40 
 
 Verm. 877. 
 Bank v. Savings Inst., N. S. xi. 591. 6S Barb. 
 
 101. 
 Bank v. Schaumburg, N. 8. vi. 246. 38 Mo. 
 
 Bank v. Smith, N. S. vi. 511. 12 Allen 243. 
 Bank v. Sprague, N. 8. ix. 323, 326. 5 C. E. 
 
 Green 159. 
 Bank v. Stevenson, N. S. iii. 698. 7 Allen 489. 
 Bank v. Supervisors, N. 8. viii. 443. 7 Wall. 26. 
 Bank v. Swain, N. S. viii. 764. 29 Md. 483. 
 Bank v. Svracuse Sav. Ins., N. S. xi. 591. 62 
 
 Barb. 101. 
 Bank v. Taylor, N. 8. ii. 662. 7 Bosw. 466. 
 Bank v. Texas, N. S. xiv. 192. 20 Wall. 72. 
 Bank v. Thomas, N. S. xii. 786. 37 Md. 246. 
 Bank v. Wadsworth, N. S. ii. 121. 10 E. P. 
 
 Smith (N. Y.) 647. 
 Bank v. Wall, N. 8. ix. 120. 56 Me. 167. 
 Bank v. Webb, N. S. i. 633. 36 Barb. 291. 
 Bank v. Wetherald, N. 8. i. 241. 84 Barb. 323. 
 Bank v. Williams, N. S. iv. 570. 13 Mich. 282. 
 Bank v. Winchester, N. S. iv. 119. 8 Allen 109. 
 Bank v. Wixon, N. S. vi. 184. 46 Barb. 218, 
 BankD. Wood, N. S. i. 603. 10 E. P. Smith 
 
 (N. Y.) 94. 
 Bank v. Wright, N, S. vi. 126. 46 Barb. 45. 
 Bank v. Young. N. S. vi. 61. 37 Mo. 398, 
 Bank of Commerce v. Boggy, N. 8. ix. 198. 44 
 
 Mo. 13, 
 Bank of Louisville v. Y'oung, N. S. vi, 61. 37 
 
 Mo. 398. 
 Bankard v. B. & O. E. E. Co., N. S. xi, 63. 34 
 
 Md. 197. 
 Banking Co. u. Ohio, O. S. i. 179. 3 Selden 
 
 (N. Y.) 828. 
 Bank of Bethel v. Pahquioque Bank, N. S. xu. 
 
 126. 14 Wall. 388. 
 Bank of Brighton v. Smith, N. S. vi. 611. 12 
 
 Allen 243. 
 Bank of Chemung -v. Ingraham, N. 8. x. 412. 
 
 58 Barb. 290. 
 Bank of Maryland v. Clarke, N. S. vm. 250. 28 
 
 Md. 145. 
 Bank of Metropolis v. Orenth (Orcutt), N. S. 
 
 vii. 59, 127. 48 Barb. 2,'J6. „ .. 
 
 Bank of St. Mary's v. The State, &e., O. S. n. 
 
 319. 12 Ga. 475, 
 Bank of State of N. Y. v. Bank, N. S. i. 636. 36 
 
 Barb. 832. , „ , , 
 
 Bank of West Tennessee v. Citizens' Bank oi 
 
 Louisiana, N. S. xii. 120. 14 Wall. 9. 
 Bank, Appeal of Farmers' & Mechanics', N. 
 
 S. iv. 637, 48 Penna. St. 57. „, „ „ 
 
 Banks v. The Mayor. N. 8. viii. 447. 7 Wall. 16. 
 Banks v. Ogden, N. S. iv. 609. 2 Wall. 57. 
 Bannon v. Angler, N. S. i. 124. 2 Allen 128. 
 Barber v. City of Eoxbury, N. 8. vi. 123. 11 ■ 
 
 Allen 318. 
 
1036 
 
 TABLE OF ABSTEACT OASES. 
 
 Barber v. Converse, N. S. iii. 375. 1 Eedfield 
 
 Surrog. K. 330. 
 Barber v. Merriam, N. S. vi. 120. 11 Allen 322. 
 Barclay v. Clyde, O. S. v. 312. 2 E. D. Smith 
 
 95. 
 Barclay v. Picker, N. S. vi. 252. 38 Mo. 143. 
 Barclay's Appeal, N. S. x. 349. 64 Penna. St. 
 
 69. 
 Barhyte v. Shepherd, N. S. vi. 313. 8 Tiffany 
 
 238 
 Barker v. Barker. N. S. vii. 252. 47 N. H. 341. 
 Barker v. N. Y. Cen. K. E. Co., N. S. ii. 122. 10 
 
 E. P.SmithfN. Y.) 599. 
 Barker's Ca.se, N. S. ix. 711. 49 N. H. 195. 
 Barlow, Executrix v. Yeoman's (Youmans) 
 
 Adm'r, N. S. vii. 637. 50 Barb. 187. 
 Barman v. Carhartt, N. S. ii. 127. 10 Cooley 
 
 338. 
 Barnard v. Duncan, N. S. vi. 254. 38 Mo. 170. 
 Barnard v. Hoyt, N. S. xiv. 63. 63 111. 341. 
 Barnard v. Monnot, N. S. i. 64. 34 Barb. 90. 
 Barnard v. Moore, N. S. iv. 116, 315. 8 Allen 
 
 273 
 Barnes v. Badger, N. S. iii. 503. 41 Barb. 98. 
 Barnes v. Gardner, N. S. ii. 119. 10 E. P. Smith 
 
 (N. Y.) 583. 
 Barnes's Appeal, N. S. xiv. 461. 76 Penna. St. 
 
 50. 
 Barnet «.. Johnson, N. S. vi. 569. 2 McCarter 
 
 481. 
 Barnett v. Allen, O. S. vii. 319. 3 H. & N. 376. 
 Bamett v. Lichtenstein, N. S. iii. 61. 39 Barb. 
 
 194. 
 Barnett u. Williams. N. S. x. 407. 7 Kans. 339. 
 Barney v, Burnstenbinder, N. S. xii. 599. 64 
 
 Barb. 212. ' 
 
 Barney v. Clark, N. S. vi. 44,'). 46 N. H. 514. 
 Barney v. Leeds, N. S. xil. 256. 61 N. H. 253. 
 Barney v. Schmeider, N. S. ix. 447. 9 \Vall. 248. 
 Bams V. Allen, O. S. ix. 747. 
 Barnum v. Hackett, N. S. iv. 56. 35 Verm. 77. 
 Barnum v. Stone & Berry, N. S. xiii. 389. 27 
 
 Mich. 332. 
 Barque Delaware v. Steamer Osprey, O. S. ii. 
 
 699. 2 Wall. Jr. 268. 
 Barrett v. Kussell, N. S. xii. 399. 45 Verm. 43. 
 Barron (Le Barron) v. East Boston Ferry Co., 
 
 N. S. vi. 61. 11 Allen 312. 
 Barron v. Robbins, N. S. xi. 532. 22 Mich, 35. 
 Barry v. Briggs, N. S. xi. 636. 22 Mich. 201. 
 Barry si. Lowell, N. S. iv. 119. 8 Allen 127. 
 Barter ii. Wheeler, N. S. x. 195. 49 N. H. 9. 
 Barth v. Burt, N. S. v. 266. 43 Barb. 628. 
 Bartholomew's Adm'r v. Bartholomew, N. S. 
 
 v. 380. 60 Penna. St.l94. 
 Bartlett v. Kingan, O. S. i. 123. 19 Penna. St. 
 
 341. 
 Bartlett v. Mayo, O. S. i. 188. 33 Me. 618. 
 Bartlett v. Medical So. of .Erie, N. S. iv. 575. 5 
 
 Tiffany (N.Y.) 187. 
 Bartlett v. Western Union Tel. Co., N. S. xiv. 
 
 199 62 Me 209 
 Bartlett v. Wheeler, N. S. v. 441. 44 Barb. 162. 
 Bartling v. Jamison, N. S. ix. 200, 44 Mo. 141. 
 Bartolett v. Dixon, N. S. xiii. 389. 73 Penna. 
 
 St 129 
 Barton i. Beer. N. S, j, 310. 35 Barb. 78. 
 Barton v. City of Syracuse, N. S. ii. 314. 37 
 
 Barb. 292. 
 Barton v. The State, N. S. ix. 122. ^ Wis. 
 
 587. 
 Bascom v. Smith, N. S. vi. 124. 7 Tiffany (N. Y.) 
 
 302, 
 Basford v. Pearson, N. S. v, 124. 9 Allen 387. 
 Bassett v. Bassett, N. S. viii. 184. 65 Me. 125, 
 
 127. 
 Bassett v. Hathaway, N. S. i. 186. 5 Cooley 
 
 28. 
 Batchelder v. Keniston, N. S. xii. 327. 51 N. H. 
 
 496. 
 Batchelder v. Putnam, N. S. xiv. 463. 54 N. H. 
 
 64. 
 Batchelder v. Sargeant, N. S. vii. 253. 47 N. H. 
 
 262. 
 Batdorf v. Albert, N. g. vUi. 697. 59 Penna, St. 
 
 69. 
 
 Bates V. Avery, N. S, xi. 462. 59 Me, 354. 
 Bates V. Boston & N. Y. C. K. K. Co., N. S. v. 
 
 .606. 10 Allen 251. 
 Bates V. Miller, N. S. x. 69. 48 Mo. 409. 
 Bates's Case, N. S. xiv. 701. 65 N. H. 325. 
 Battle V. Coit, N. S. iii. 700. 12 E. .P. Smith 
 
 (N. Y.) 404. 
 Batton V. Watson, 0. S, ii. 381. 63 Ga. 63. 
 Bausman v. The Co. of Lancaster, N. S. v, 383. 
 
 50 Penua. St. 208. 
 Baxter v. Chapman, N. S. xiii. 587. 29 L. T. N. 
 
 S. 642. 1 
 
 Bay City G. L. Co. v. Indus. Works, N. S. xiii. 
 
 526. 28 Mich. 182. 
 Bayden v. Burke, O. S. i. 376. 14 How. 575. 
 Bayles v. Young. N. S. ix. 775. 51 lU. 127. 
 Bayless v. Estes. N. S. x. 196. 1 Heiskell 78. 
 Baynard (Bayard) v. Farmers' & Mechanics' 
 
 Bank, N. S. vi. 633. 62 Penua, St. 232. 
 Bavne v. Morris, N. S. iv. 63. 1 Wall. 97. 
 Beach v. Shaw, N. S. xii. 193. 57 111. 17. 
 Beam v. Barnum, O. S. i. 671. 21 Conn. 200. 
 Beam v. The Somerset and Conemaugh T.Eoad 
 
 Co., 0. S. i. 120. 19 Penna. St. 453. 
 Bean v. Atlantic & St. L. K. E. Co., N. S. x. 631. 
 
 58 Me. 82. 
 Bean v. Boothby, N. S. x. 67, .57 Me. 295. 
 Bean v. Brown, N. S. xiv. 702, 707. 54 N, H. 395. 
 Bean v. Coleman, N. S. iii. 381. 44 N. H, 639. 
 Bean v. Eail Ebad Co., N. S. x. 631. 58 Me. 82. 
 Beardsley v. Davis, N. S. viii. 377, 379. 62 Barb. 
 
 169. 
 Beams v. Columb. Ins. Co., N. S. vii. 254. 48 
 
 Barb. 445. 
 Beatty v. Lycoming Ins. Co., N. S. ji.. 745. 66 
 
 Penna. St. 9. 
 Beatty v. Mason, N. S. ix. 1)82. 30 Md. 409. 
 Beaumont v. Herrick, N. S. xiv. 194, 195. 24 
 
 Ohio St. 445. 
 Beck V. Stitzel, O. S. ii. 122. 21 Penna. St. 522. 
 Bedore v. Newton. N. S. xiv. 322. 54 N. H. 117. 
 Beebe v. Hutton, N. S. vi. 674. 47 Barb. 187. 
 Beebe v. Knapp, N. S. xiii. 467. 28 Mich. 53. 
 Beech v. Kemp, O. S. iii. 121. 23 L. J. Cli. ija9. 
 Beeching v. Lloyd, O. S. iv. 125. 19 Jur. 769. 
 Beekman i'. Bonsor, N. S. i. 179. 9 E. P. Smith 
 
 (N. Y.) 575. 
 Beers v. Beers, N. S. xi. 531. 22 Mich. 42. 
 Beggert, Est. of John, O. S. i. 122. 20 Penna. 
 
 St. 17. 
 Behn n. Bumess, N. S. iii. 442. 32 L. J.(l.B. 204. 
 Belcher v. Farrar, N. S. iv. 117. 8 Allen 325. 
 Belden v. Belden, N. S. xii. 461. 8 C. E. Green 
 
 350. 
 Belden v. Contracting Board. N. S. iv. 188. 13 
 
 E. P. Smith (N. Y.) 378. 
 Belger v. Dismore (Dinsmore), N. S. viii. 185, 
 
 188. 61 Barb. 09. ' 
 Belknap v. Eail Eoad Co., N. S. xi. 55. 49 N. H. 
 
 358 
 Bell v. Gilmore, N. S. xiv. 324. 10 C. E. Green 
 
 104. 
 Bell V. Hale (Hall), 0. S. i. 698. 4 G. Greene 68. 
 Bell V. Lamprey, N. S. xii. 1)33, f>34. 52 N. H. 41. 
 Bell V. Pratt. N. S. i. 768. 36 Barb. 402. 
 Bell V. The State, O, S. i. 381. 1 Swan 367. 
 Bell V. Woodman, N. S. xii. 660. 00 Me. 405. 
 Bellinger v. N. Y. Cent. E. E., N. S. i. 59. 9 E. 
 
 P. Smith (N. Y.) 42. 
 Bellows Falls Bank v. Eutland County Bank. 
 
 N. S. vii. 768. 40 Verm. 377. 
 Belmont Branch Bank v. Hoge, N. S. ii. 563. 
 
 7 Bosw. 643. 
 Beloit Bank v. Beale, N. S. ii, 664. 7 Bosw. 611. 
 Bemis v. C. & P. E. E. Co., N. S. ix. 645. 42 
 
 Verm, 376, 
 Benbow v. Iowa City, N. S. viii. 262. 7 Wall. 
 
 313. 
 Bendelson v. French, N, S. v, 319, 44 Barb, 31. 
 Benedict v. Martin. N, S. i. 633. 36 Barb. 288. 
 Benner v. Equitable Ins. Co., N. S. iii. 310. 6 
 
 Allen 222. 
 Benners v. Clemens, N. S. viii. 630. 58 Penna. 
 
 St. 24. 
 Bennet ti. Bennet. N. S. i. 762. 2 Beasley 114. 
 Bennett v. Brooks, N. S. iv. 768. 9 Allen 118, 
 
TABLE OF ABSTRACT CASES. 
 
 1037 
 
 Bennett v. Chambers, O. S. i. 187. 14 How. 38. 
 Bennett v. Clemence, N. S. iii. 121. 6 Allen 10. 
 Bennett v. Fail & Patterson, O. S. iv. 189. 26 
 
 Ala. 605. 
 Bennett v. Holmes, N. S. .^. 193, 204. 32 Ind. 
 
 108. 
 Bennett v. Liblieart (Libhart). N. S. xiii. 457. 
 
 27 Mich. 489. 
 Bennett v. Moita, O. S. iii. 127. 7 Taunt. 258. 
 Bennett v. The State. O. S. i, 382. 1 Swan. 411. 
 Benoir v. Paguin, N. 8. vii. 634. 40 Verm. 199. 
 Benson v. Miners' Bank, 0. S. i. 437. 20 Penna. 
 
 St. 370. 
 Bermuda, The, N. S. v. 568. 3 Wall. 514. 
 Bernard (Barnard) v. Campbell, N. S. xiii. 26S. 
 
 65 Barb. 286. 
 Bernecker v. Miller, X. S. ix. 195. 44 Mo. 102. 
 Bernstine v. Smith, N. S. xii. 532, 726, 730. 10 
 
 Kans. 60. 
 ■ Berthold v. Eeyburn, N. S. vi. 64. 37 Mo. 586. 
 Besse v. Dver. N. 8. Iv. 504. 9 Allen 151. 
 Beveridse v. Rawson, N. 8. x. 133. 51 111. 504. 
 Bibb V. Hitchcock, N. S. xiii. 390. 49 Ala. 468. 
 Bibby V. Carter, O. S. vii. 704. Ex. C. L. 182. 
 Bickford v. Barnard, N. 8. Iv. 313. 8 Allen 314. 
 Bidwell V. The Northwestern Ins. Co., N. S. ii. 
 
 59. lOE. P. Smith(N. Y.)302. 
 Bigelow V. Avrault, N. 8. vi. 59. 46 Barb. 143. 
 Bigelow V. ComegTS, O. S. iv. 768. 5 Ohio St. 
 
 256. 
 Bigelow V. Doolittle, N. 8. xiv. 326. 36 Wis. 11,5. 
 Bigelow I'. Doolittle, Sheriff, N. 8. xiv. 252. 36 
 
 Wis. 303. 
 Bigelow, Adm'r v. Foss, N. 8. xi. 593. 59 Me. 
 
 162. 
 Bigget, Estate of John, O. 8. i. 121. 20 Penna. 
 
 St. 17. 
 Biggs, Ex parte, N. S. Ix. 574. 64 X. C. 202. 
 Bigley t'. Risher, X. 8. x. 205. 63 Penna. 8t. 152. 
 Big Mountain Improv. Co.'s Appeal, N. S. vii. 
 
 31S. 54 Penna. St. 361. 
 Bigony v. Tvson, N. 8. xiv. 116. 75 Penna. St. 
 
 157. 
 Billmeyer v. Evans, N. S. 1. 760. 40 Penna. 8t. 
 
 324. 
 Bingham's Appeal, N. S. x. 413. 64 Penna. St. 
 
 345. 
 Bircleback v. Wilkins, O. 8. li. 187. 22 Penna. 
 
 St. 26, 
 Bird V. Lake, N. S. ill. 628. 1 H. & M. 338. 
 Bird V. Turner, N. 8. iii. 628. 1 H. & M. 33S. 
 Bird's Adm'rs v. Jasler's Exec'rs, N. 8. xii. 466. 
 
 8 C. E. Green 363. 
 Birkey v. McMakin, N. S. x. 404. 64 Penna. St. 
 
 343. 
 Birmingham v. Empire Ins. Co., N. S. iv. 314. 
 
 42 Barb. 457. 
 Bishears v. Rowe, N. S. x. 67. 46 Mo. 501. 
 Bi.shop V. Price, N. S. ix. 119. 24 Wis. 480. 
 Bishop V. Schneider, N. 8. x. 182. 46 Mo. 472. 
 Bishop V. Small, N. S. xiv. 397. 63 Me. 12. 
 Bissel V. Torrey, N. 8. xiii. 60. 65 Barb. 188. ■" 
 Bissell V. Balcom, N. 8. iii. 253. 40 Barb. 98. 
 Bis.sell V. N. Y. Cent. R. B. Co., N. 8. i. 128. 9 
 
 E. P. Smith (N. Y.) 61. 
 Bissell V. Eoden, N. S. iii. 633. 34 Mo. 63. 
 Bittenbender v. Sunbury & Erie R. R. Co., N. 
 
 S. i. 758. 40 Penna. St. 270. 
 Bivlngsville Man. Co. v. Bivinga, 0. S. iii. 573. 
 
 7 Richardson Eq. 455. 
 Bixley v. Moor, N. S. xi. 721. 61 N. H. 402. 
 Black V. Camden & Amboy E. R., N. S. v. 566, 
 
 573. 45 Barb. 40. 
 Black V. Coan, N. S. xiv. 591. 48 Ind. 3&5. 
 Black V. Enterprise Ins. Co., N. S. x. 746. 33 
 
 Ind- 223. „ „ ^ 
 
 Black V. Keiby (Keiley), N. S. xn. 464. 8 C. E. 
 
 Green 358. „ „„„ , 
 
 Black River Bank v. Page, N. S. x. 800. 5 
 
 Hand (N. Y.) 453. . „ „ ,„ 
 
 Black V. Richardson, N. S. xui. 783. 39 Md. 
 
 194 
 Blackburn v. Crawfords, N. S. v. 610. 3 Wall. 
 
 175. 
 Blacksmith v. Kendle, 0. 3. i. 182. 3 Selden 
 
 (N. Y.) 4fll. 
 
 Blackwood v. Van Vleet, N. 8. ii. 571. U Mich. 
 
 252. 
 Blain v. Blain, N. 8, xiii, 57. 45 Verm. 538. 
 Blaine i>. Bourne. N. 8. xiv. 391. 11 R. I. 
 Blaine v. Everitt, N. S. xii. 60. 36 Md. 
 Blaisdell v. G. F. & C. E. K., N. S. xii. 258, 61 
 
 N, H, 483, 
 Blaisdell v. Harris, N. S. xii. 662. ,52 N, H. 191. 
 Blake V. Board of Super, of Livingston Co., 
 
 N. 8. xi. 398. 61 Barb. 149. 
 Blake v. Brackett, N. 8 xiii. 123. 47 Me, 28. 
 Blakeney v. Regan, 0. S. i. 307. (C. B.) 
 Blakeslee v. Blakeslee, O. 8. ii. 188. 22 Penna. 
 
 St. 237. 
 Blalock et al. v. Phillips, N. S. viii, 312. 38 Ga. 
 
 216. 
 Blauohard v. Detroit &c. Railroad Co., N. S. 
 
 xiv. 2.53. 31 Mich. 43. 
 Blanchard v. Ellis. O. S. iii. 69, 1 Gray 195. 
 Blanchard v. Equitable Safety Ins. Co., N. S. 
 
 vi. 508. 12 Allen 386. 
 Blanchard v. Fearing, N. S. ii. 64. 4 Allen 118. 
 Blanchard v. F'st Ass. of Portland, N. S. xi. 
 
 530. 69 Me. 202. 
 Blatchford v. Cole, O. S. vii. 512, 567. 28 L. J. 
 
 C. P. 140. 
 Blauvelt v. Smith, N. S. xi. 58, 7 C. E. Green 31. 
 Bleakley's Appeal, N. 8. x. 797. 6C Penna. St. 
 
 187. 
 Bliss V. Schaub. N, S. vii. 57. 48 Barb. 339. 
 Bliss V. Sh warts (Schwarts), N. 8. xii. 592. 54 
 
 Barb. 215. 
 Bliss V. Whitnev, N, 8. v. 126. 9 Allen 114. . 
 Bliven v. The Hudson River R. R. Co., N. 8. i. 
 
 375. 35 Barb. 188. 
 Blodgett V. Boston, N. S. iv. 189. 8 Allen 237. 
 Blodgett V. Berlin Mills Co., N. S. xii. 661. ,53 
 
 N. H. 215. 
 Bloodgood Adm'rs v. Sears. N. S. xii. 401. 64 
 
 Barb. 71. 
 Bloomer v. Millinger, N. S. iii, 695. 1 Wall, 310, 
 Bloomer v. Reed, O. S. ii. 121. 22 Penna. St. 51. 
 Blossom II, Blossom. N. S. v. 186, 9 Allen 254. 
 Blossom V. Blossom, N. 8. iv. 506. 9 Allen 254. 
 Blow, Adm'r v. Spear, N. S. viii. 383. 43 Mo. 
 
 496. 
 Blower v. Blower, O. S. vii. 567. 28 L. J. Ch. 
 
 181. 
 Board v. City of Hoboken, N. 8. xiii. 395. 7 
 
 Vroom 378. 
 Board of Education v. Chaney, O. S. iv. 531. 5 
 
 Ohio St. 67. 
 Boardman v. Spooner, N. S. vii, 188, 13 Allen 
 
 353. 
 Bobbett V. The State, N. S. xii. 124. 10 Kans, 9. ■ 
 Bobo V. Richmond, N. S. xiv. 642. 25 Ohio St. 
 
 115. 
 Bockover v. Ayres, N. S. xi. 264. 7 C. E, Green 
 
 13. 
 Bodman v. Murphy, N, S. xi. ,535. 35 Md. 1,54. 
 Boehen v, Williamsburg City Ins. Co., N. S, vi. 
 
 318. 8 Tiffany (N. Y.) 131. 
 Bogle V. Bogle and Others, N. S. i. 506. 3 Allen 
 
 168. 
 Bohlman v. G. B. & Lake P. R. R, Co,, N. 8, xii. 
 
 187. 30 Wis. 10,5. 
 Boland v. Missouri E. E. Co., N. S. v. 447. 36 
 
 Mo. 484. 
 Boland v. Whitman, N. 8. x, 665. 33 Ind. 54. 
 Bold Buccleugh, The, O. 8. i. 52, 54. 3 Rob. 
 
 Adm. 220. 
 Bollinger's Champagne, N. S. v. 640. 3 Wall. 
 
 660. 
 Boom Co. V. Speechley, N. S, xiv, 712. 31 Mich. 
 
 336. 
 Bonaffe, Matter of, N. S. i. 59. 9 E. P. Smith 
 
 (N. Y.) 169, 
 Bonaparte, The, O. S. 1. 49. 3 Rob. Ad. Cas. 
 
 298. 
 Bonati v. Welsch, Exec'r, N. S. ii. 250. 10 E. P.' 
 
 Smith XN. Y.) 157. 
 Bond V. Bond, N. S. iii. 507. 7 Allen 1. 
 Bond V. Wilson, N. 8, xi. 62. 8 Kans. 228. 
 Bonett V. Stowell, N. S. v. 318. 37 Verm, 258. 
 Bonnell v. Jacobs, N. S. xiv, 328. 36 Wis. 59. 
 Bonney v. Foss, N. S. xiv. 197. 62 Maine 248. 
 
1038 
 
 TABLE OF ABSTKACT CASES'. 
 
 Booraem t). Wells, N. S. viii. 121, 127. 4 C. E. 
 
 Green 87. 
 Boose V. Ohio, O. S. v. 124. 10 Ohio Pt. 575. 
 Booth V. Bierce, N. S. iii. 254. 40 Barb. 114. 
 Booth 11. Bunce, N. S. ii. 120. 10 E. P. Smith (N. 
 
 Y ) 592 
 Boriandi). Washington Co., O. S. i. 251. 
 Borough of Allentown v. Saeger, O. S. i. 436. 
 
 20 Penna, St. 421. 
 Borough of Dunmore's Appeal, N. S. vi. 638. 
 
 52 Penna. St. S74. 
 Borough of Easton's Appeal, N. S. iv. 311. 47 
 
 Henna. St. 265. 
 Borrowsoale v. Tuttle, N. S. iii. 63. 5 Allen 377. 
 Boston & Worcester R. K. v. Dana, O. S. iii. 58. 
 
 1 Gray 83. 
 Boston V. Worthington, N. S. iii. 186. 10 Gray 
 
 496. 
 Botsford V. McTjean, N. S. iv. 308. 42 Barb. 445. 
 Bottomley v. Fisher, N. S, iii. 440. 1 H. cSi C. 
 
 211. 
 Bouck !). Supervisors of Kittanning, 0. S. i. 125. 
 Boulware M.Witherspoon, O. S. iii. 572. 7 Kich- 
 
 ardson Eq. R. 450. 
 Bower v. Turner, N. S. iii. 439. 11 W. R. 411; 
 
 8L. T. N. S. 135 — H. 
 Bowker v. Childs. N. S. i. 504. 3 Allen 434. 
 Bowker v. Smith, N. S. viii. 575. 48 N. H. HI. 
 Bowling Green Savings Bank v. Todd, N. S. 
 
 xii. 593. 699. 64 Barb. 146. 
 Bowman v. Coffroth, N. S. viii. 766. 59 Penna. 
 
 St. 19. 
 Bowman v. Cornell. N. S. ii. 702. 39 Barb. 69. 
 Bowman v. Kennedv, 0. S. i. 119. 
 Boyce v. Boyce, N. S. xii. 465. 8 C. E. Green 337. 
 Boyd V. Cross, N. S. xi. 635. 35 Md. 194. 
 Boyd V. Hood, N. S. viii. 317. 67 Penna St. 98. 
 Boyle V. Eankin, O. S. ii. 121. 22 Penna. St. 
 
 168. 
 Boyle V. State of Kansas, N. S. xii. 596. 10 
 
 lians. 113. 
 Boyle V. Wisemen, 0. S. iii. 700. 24 L. J. Ex. 
 
 160. 
 Boynton pro ami v. Clay, N. S. x. 604. 58 Me. 
 
 236. 
 Boynton v. Trumbull, N. S. iv. 612. 45 N. H. 
 
 408. 
 Braokett v. Goddard. N. S. vii. 442. 64 Me. 309. 
 Brackett v. Lubke, K. S. ii. 63. 4 Allen 188. 
 Bradford v. Forbes, N. S. iv. 448. 9 AUen 365. 
 Bradford v. Fox, N. S. iii. 61. 39 Barb. 203. 
 Bradley v. Potomac Fire Ins. Co., N. S. x. 129. 
 
 32 Md. 108. 
 Bradner v. Faulkner, N. S. vi. 122. 7 Tiffany 
 
 (N. Y.) 347. 
 Brady v. Liittle Miami R.' R. Co., N. S. i. 239. 
 
 34 Barb. 249. 
 Brady v. N. W. Ins. Co., N. S. ii. 572. 11 Mich. 
 
 426. 
 Bragg V. Boston & Wor. R. R. Co., N. S. iv. 703, 
 
 768. 9 Allen 64. 
 Bragg V. Pierce, N. S. vi. 562. .53 Me. 65. 
 Braiue v. Spalding, N. S. vi. 630. 62 Penna. St. 
 
 247. 
 Branner v. Felkner, N. S. x. 201. 1 Heiskell 
 
 228. 
 Brannin v. Brannln, N. S. vii.. 698. 3 C. E. 
 
 Green 212 
 Braun v. Saurwein, N. S. x. 69. 10 Wall. 218. 
 Brazier ii. Banning, O. S. i. 441. 20 Penna. St. 
 
 845. 
 Breden v. Gilliland, N. S. xi. 267. 67 Penna. 
 
 St. 34. 
 Brengle v. Bnshey. N. S. xiv. 263. 40 Md. 141. 
 Brennan v. People. 0. S. iii. 636, 637. 16 lU. 511. 
 Brennan's Estate, N. S. x. 636. 65 Penna. St 
 
 16, 298. 
 Brenneman's Appeal, N. S. i. 563. 40 Penna. 
 
 St. 115. 
 Brenner v. Brenner et cU., N. S. xiv. 584. 48 
 
 Ind. 262. 
 Brewer v. Herbert, N. S. ix. 445. 80 Md. 301. 
 Brewer v. Norcross, N. S. v. 63. 2 C. E. Green 
 
 219. 
 Briddon v. Great Northern Bail Co., 0. S. vii. 
 
 607. 28 L.J. Ex. 51. 
 
 Bridge Co. v. Ferry Co., N. S. i. 187. 29CoTln.2lO. 
 Bridge Co. v. Lewis. N. S. xii. 260. 63 Barb. 111. 
 Bridge v. Mason, N. S. v. 565. 45 Barb. 37. 
 Bridgeport Ins. Co. v. WiLson, N. S. vi. 128. 
 
 34 N. Y. 275. 
 Bridge Proprietors v. Hoboken Co.. N. S. iv. 55. 
 
 1 Wall. 116. 
 Brig City of Erie v. Canfields, N. S. xiii. 395. 27 
 
 Mich. 479. 
 Briggs V. A Light-Boat, N. S. iii. 667. 7 Allen 
 
 287. 
 Briggs V. A Light-Boat, N. S. vi. 61. 11 Allen 
 
 157. 
 Briggs V. Boston & L. E. R. Co., N. S. iii. 200. 
 
 6 Allen 246. 
 Briggs V. Briggs, N. S. X. 410. 20 Mich. 34. 
 Briggs V. Easterly, N. S. xi. 660. 62 Barb 61. 
 Briggs V. Taylor, N. S. iv. 66. 35 Verm. -57. 
 Brigham v. Foster. N. S. iii. 698. 7 Allen 419. 
 Brigham v. Palmer, N. S. i. 603. 3 Allen 460. ' 
 Bright V. .Tudson, N. S. vi. 436. 47 Barb. 29, 
 Brinkerhoof v. Olp. Ex., N. S. 1. 309. 35 Baib. 
 
 27. 
 Erinton's Case, O. S. ii. 698. 2 Wall. Jr. 149. 
 Brisce (Briscoe) v. Power, N. S. ix. 126. 47 111, 
 
 447. 
 Brister v. The State. 0. S. iv. 191. 26 Ala. 107. 
 Bristol V. Braidwood, N. S. xiii. 528. 28 Micti. 
 
 191. 
 Brittain v. Bank of London, N. S. iii. 693. 3 F. 
 
 & F. 465 ; U W. R. 669 ; 8 L. T.. N. S. 382— Q. B. 
 Britton's Appeal, N. S. iii. 573. 45 Penna St. 
 
 172. . 
 Broadway Bank v. McElrath, N. S. i. 696. 2 
 
 Beasley 24. 
 Broderiok's Will, Case of, N. S. xiv. 623. 21 
 
 Wall. 503. 
 Brouson v. La Crosse & Milwaukee R. R. Co., 
 
 N. S. iv. 571. 2 Wall. 283. 
 Bronson v: La Crosse & Milwaukee R. R., N. S. 
 
 iv. 767. 2 Wall. 283. 
 Bronson v. Rodes. N. S. viii. 261. 7 Wall. 229. 
 Bronson v. Eugg, N, S. vi. 672. 39 Verm. 241. 
 Bronson v. Silverman, N. S. xiv. 752. 77 Penna. 
 
 St. 94. 
 Brookbank v. Kennard, N. S. xiii. 268. 41 Ind. 
 
 339. 
 Brooke v. Grand Trunk E. W. Co., N. S. vi. 
 
 639. 16 Mich. 332. 
 Brookman v. Hamill, N. 8. ix. 190. 54 Barb. 
 
 209. 
 Brooks V. Cotton. N. S. viii. 570. 48 N. H.-50. 
 Brooks V. Harris. N. S. xiii. 262. 41 Ind. 390. 
 Brooks V. Lester. N. S. xii. 259. 36 Md. 66. 
 Brooks V. Martin, N. S. iv. 574. 2 Wall. 70. 
 Brotherline v. Swires, N. S. iv. 640. 48 Penna 
 
 St. 68. 
 Brown, Adm'x v. Nourse, N. S. viii. 185, 187. 
 
 55 Me. 230. 
 Brown V. Bankers & B. T. Co., N. S. ix. 316. 
 
 30 Md. 39. 
 Brown v. Bigelow, N. S. v. 575. 10 Allen 242. 
 Brown & Wife v. Brown, N. S. viii. 676. 48 N. 
 
 H. 90. 
 Brown v. Bryne. O. S. iii. 124. 18 Jur. 700. 
 Brown v. Bush, N. S. iii. 673. 45 Penna. St. 61. 
 Brown v. Chadrey, N. S. iii. 61, 123. 39 Barb. 
 
 253. 
 Brown v. Clegg. N, S. x. 63. 63 Penna. Pt. 51. 
 Brown v. Commonwealth, N. S. xiv. 581. 76 
 
 Penua. St. 319. 
 Brown «. Combs. N. S. ii. 53. 5 Butcher 36. 
 Brown v. Coon, N. S. iv. 607. 36 111. 243. 
 Brown v. County Commsrs., O. S. i. 437. n 
 
 Penna. St. 37. 
 Brown v. Cummings, N. S. Iii. 698. 7 AUen 
 
 507. 
 Brown v. Evans, N. S. iii. 373. 6 Allen 333. 
 Brown (Bowlin) v. Furman, N. S. iii. 633, 34 
 
 Mo. 39. 
 Brown v. Heath, N. S. ill. 125. 
 Brown v. Kidger, 0. S. vii. 611. 28 L. J. Ex. 66. 
 Brown v. Lehigh Coal & Nay. Co., N. S. v. 185 
 
 49 Penna. St. 270. 
 Brown v. Lincoln. N. S. viii. 61. 47 N. H 468 
 Brovirn v, Parker, N. S. iii. 567. 7 Allen 337 
 
TABLE OF ABSTRACT CASES. 
 
 10.39 
 
 Brown v. Parsons, N. S. xi, 596. 22 Mich. 24, 
 Brown v. Ramsay, N. S. ii. 56. 5 Butcher H7. 
 Brown v. Rich, N. S. iii. 1S8. 40 Barb. 28. 
 Brown v. Simons, N. S. iv. 608. 44 N. H. 475. 
 Brown v. Tarlilngton, N. S. v. 565. 3 Wall. 877. 
 Brown v. Thompson, N. S. xi. 599. 59 Me. 372. 
 Brown i>. r>Teed. N. S. i. 318. 2 Allen 566. 
 Brown v. Wentwoith, N. S. vi. 383. 46 N. H. 
 
 490. 
 Brown v. Wolf, O. R. iv. 698. 5 Ohio St, 804. 
 Brown's Appeal, X. S. x. 797. 66 Penna. St. 
 
 155. 
 Brown's Estate, O. S. i. 126. 
 Brownfleld v. Carron, O. S. Iv. 442. 25 Penna. 
 
 St. 299. 
 Brownson v. Marine Court of N. Y., N. S. 1. 699. 
 
 36 Barb. 341. 
 Brubaker's Adm'r v. Taylor, N. S. xiv. 524. 76 
 
 Penna. St. 83. 
 Bruce i'. Davenport. N. S. i. 699. 36 Barb. 349. 
 Bruce v. Hastings, N. 8. viii. 506. 41 Verm. 380. 
 Bruce v. Priest. N. S. ii. 558. 5 Allen 100. 
 Bruce v. Westervelt, O. S. v. 314. 2 E. D. Smith 
 
 440. 
 Brumagin v. Chew, N. S. viii. 125. 4 C. E. 
 
 Green 130, 837. 
 Brumfleld v. Carson, N. S. x. 665. 33 Ind. 94. 
 Brundage v. Brundage, N. S. xiii. 124. 65 
 
 Barb. 397. 
 Bruner v. Howard Fire Ins. Co., O. S. ii. 510. 
 
 23 Penna. St. 50. 
 Bruner v. Ins. Co., O. S. u. 510. 28 Penna. St. 
 
 50. 
 Bruner's Appeal, N. S. iv. 2-54. 47 Penna. St. 
 
 67. 
 Bryan t'. Bates, N. S. vi. 438. 12 AUen 201. 
 Brvan v. Hickson. N. S. ix. 639. 41 Ga. 620. 
 Bryan v. The State. O. S. iv. 191. 26 Ala. 65. 
 Bryan r. Walker. N. S. ix. 583. 64 N. C. 154. 
 Bryant i'. Clark, N. S. xiii. 51. 45 Verm. 483. 
 Bryant v. Hawkins. N. S. x. 746. 47 Mo. 410. 
 Bryant v. Osgood, N. S. xii. 657. 52 N. H. 182. 
 Bryant v. Pennell, N. S. xiii. 125. 61 Me. 108. 
 Bryant v. Whitcher, N. S. xu. 698. 52 N. H. 
 
 158. 
 Buccleugh, The Bold, O. S. i. 52. 3 Rob. Ad. 
 
 Cas. 220. 
 Buchanan v. Duncan, N. S. i. 497. 40 Penna. 
 
 St 82 
 Buck v'.C. & P. R. R. Co., N. S. Ix. 579. 42 Verm. 
 
 370. 
 Buck V. Colbath, N. S. v. 566. 3 Wall. 334. 
 Buck Mountain Coal Co. v. The Lehigh Coal 
 
 & Nav. Co., N. S. V. 443. 50 Penna. St. 91. 
 Buck V. Remsen, N. S. vl. 126. 7 Tiffany (N. Y.) 
 
 383 
 Buckingham v. Payne, N. S. i. 510. 36 Barb. 
 
 81. 
 Buckland «. Johnson, O. S. iii. 126. 23 L. T. 
 
 190. 
 Buckles V. Northern Bank of Kentucky, N. S. 
 
 xiv. 68. 63111. '268. 
 Buckley v. Garrett, N. S. iv. 441. 47 Penna. St. 
 
 204. 
 Bucknam v. Lothrop, N. S. v. 186. 9 AUen 
 
 147. 
 Buffalo & All'y R. R. Co. v. Gary, N. S. iii. 497. 
 
 12 E. P. Smith ( N. Y.) 75. 
 Bufflt V. Troy & Boston R. R. Co., N. S. i. 768. 
 
 86 Barb. 420. 
 Bnffum u.Stimpson, N. S. iii. 64. 5 Allen 591. 
 Buhl y. Kenyon. N. S. ii. 571 . 11 Mich. 249. 
 Building AS.SO. v. Sendmeyer, N. S. v. 443. 50 
 
 Penna. St. 67. 
 Bull V. Robinson, 0. S. iii, 639. 24 h. T. (Exch.) 
 
 165. 
 Bullock V. Adams, Exr., N. S. ix. 383, 385. 5 
 
 C. E. Green 367. 
 Bullock, Gov. V. Hancock, N. S. xi. 335. 44 Ga. 
 
 379 
 Sunday (Bundy) v. Morgan, N. S. xii. 402. 45 
 
 Venn. 46. _ 
 
 Bundy v. Hyde, N. S. xi. 660. 50 N. H. 116. 
 Bunker v. Tufts, N. S. viii. 188. 55 Me. 178. 
 Bunnell ii. Greathead, N. S. vii. 313. 49 Barb. 
 
 1U6. 
 
 Bunton v. Dunn, N. S. vii. 447. 54 Me. 152. 
 Burbank v. McCluer, N. S. xiv. 640. 51 N. H. 
 
 339 
 Burchpell v. Moore. O. S. iii. 123. 18 Jur. 727. 
 Burd's Ex'r v. Burd's Adm'r. N. S. i. 626. 40 
 
 Penna. St. 182. 
 Burdett v. Tale, N. S. iii. 249. 6 Allen 125. 
 Burdick v. People, N. S. x. 276. 58 Barb. .')1. 
 Burgess v. Alliance Ins. Co., N. S. v. 512. 10 
 
 Allen 221. 
 Burgoyne, Adm'r V. The Ohio Life Insurance 
 
 & Trust Co.. O. S. Iv. 701. 6 Ohio St. 6S6. 
 Burk V. Hill, N. S. xiv. 691. 48 Ind. 62. 
 Burk's Appeal, N. S. xiv. 128. 70 Penna. St. 
 
 141. 
 Burner Company v. Odlin, N. S. xi. 658. 61 N. 
 
 H. 56. 
 Burnett v. Ward, N. S. ix. 679. 42 Verm. 80. 
 Burnham v. City of Boston, N! S. v. 572. 10 
 
 Allen 290. 
 Burnham v. City of Fond du Lac, N. S. iii. 609. 
 
 15 Wis. 193. 
 Burnham v, Kempton, N. S. iii. 379. 44 N. II. 
 
 78. 
 Burnham ti.McQuestion, N. S. ix. 514. 48 N. 
 
 H. 446. 
 Burnley v. Cook, O. S. iv. 445. 13 Texas 586. 
 Burnley v. Stevenson, N. S. xiv. 195. 24 Ohio 
 
 St. 474. 
 Burns v. Erben, N. S. ix. 59. 1 Hand (N. Y.) 
 
 463. 
 Burns v. P. Nat. Bank of St. Alban's, N. S. xii. 
 
 398. 45 Verm. 269. 
 Burns v. Simpson, N. S. xii. 59. 9 Kans. 658. 
 Burr V. Beers, N. S. ii. 318. 10 E. P. Sihith (N. 
 
 Y.) 178. 
 Burr V. Duryee, N, S. iv. 116. 1 Wall. 531. 
 Burr V. Durvee, N. S. iv. 576. 1 Wall. 553. 
 Burr 1). Hutchinson, N. S. xiii. 257. 61 Me. 
 
 514. 
 Burr V. The Des Moines Co., N. S. iv. 54. 1 Wall. 
 
 99. 
 Burrill v. Watertown Bank Co., N. S. viii. 163. 
 
 61 Barb. 105. 
 Burrows v. Trieber. N. S. v. 444. 21 Md. 320. 
 Burson's Appeal, Sarah, 0. S. ii. 185. 22 Penna. 
 
 St. 164. 
 Burt V. Dewey. N. S. ix. 62. 1 Hand (N. Y.) 
 
 283 
 Burt 'v. Kinne, N. S. vii. 250. 47 N. H. 361. 
 Burtis V. The Buffalo & State Line E. R. Co., 
 
 N. S. ii. 184. 10 E. P. Smith (N. Y.l 269. 
 Burton v. Boyd, K S. x. 534. 7 Kans. 17. 
 Busby's Adm'r v. Chenault, 0. S. i. 446. 13 
 
 B. Monroe 554. 
 Bush V. Baldrev, N. S. vi. 122. 11 Allen 367. 
 Bush V. Bush, N. S. xii. 597. 37 Ind. 164. 
 Bush V. Stowell, N. S. xii. 788. 71 Penna. St. 
 
 208. 
 Bussell, Adm'r v. Town of Steuben. N. S. xii. 
 
 191. 57 111. 8.5. 
 Butler V. Horwitz, N. S. viii. 443. 7 Wall . 2,58. 
 Butler V. LaDue, N. S. iii. 248. 12 Mich. 173. 
 Butler D. The City of Toledo, O. S. iv. 766. 5 
 
 Ohio St. 226. 
 Butler V. United States, N. S. xiv. 621. 21 Wall. 
 
 272 
 Butler v: Viele, N R. v. 608, .512. 44 Barb. 166. ^ 
 Butterworth v. O'Brien, N. S. iii. 61. 89 Barb. 
 
 192 
 Button (Burton) v. Driggs, N. S. Xiv. 195. 249. 
 
 2(1 Wall. 125. 
 Buttrick v. Wentworth, N. S. iii. 121. 6 AUen 
 
 79. 
 Butts V. Wood, N. S. ii. 628. 38 Barb. 181. 
 Byam v. Eobbins, N. S. iii. 120. 6 Allen 63. 
 Byers v. Commonwealth, N. S. ii. 447. 42 
 
 Penna. St. 89. 
 Byrne v. Stout, 0. 3. iii. 688. 15 111. 180. 
 Byrne v. Weeks, N. S. ii. 668. 7 Bosw. 872. 
 
 C. &c. Railroad Co. v. SuUivan, N. S. xiv. 58. 
 
 68 111. 293. 
 C. B. & Q. R. R. Co. V. Notzki, N. S. xiv. 689. 
 
 66 111. 465. 
 
1040 
 
 TABLE OF ABSTRACT CASES. 
 
 C, C, C. & I. Railroad Co. v. Brown, N. S. xiv. 
 
 61. 45 Ind. 90. 
 Cabot V. Christie, N. S. ix. 647. 42 Verm. 121. 
 Cady Ex'rs i;. Sheldon, N. S. 11. 439. 38 Barb. 
 
 103. 
 Cagger ». Lenning (Lansing), N. S. x. 123, 133, 
 
 135. 57 Barb. 421. 
 Cahill V. London N. W. K. R. Co., N. S. ill. 441. 
 
 31 L. J. C. P. 271. 
 Calais S. Co. v. Scudder, Van Pelt's Adm'r, N. 
 
 S. ill. 52. 2 Black 372. 
 Calanan v. MoClure, N. S. vi. 662, 571. 47 Barb. 
 
 206. 
 Calcote V. Stanton & Buckner, O. S. ill. 48. 28 
 
 Miss. 432. 
 Caldwell v. Custard, N. S. x. 536. 7 Kans. 303. 
 Caldwell v. Gale. N. S. ii. 697. 7 Cooley 77. 
 Caldwell v. Hartupee, N. S. xii. 401. 70 Penna. 
 
 St.. 74. 
 Caldwell v. Scott, N. S. xiv. 648. 54 N. H. 414. 
 Calef V. Calef, N. S. vii. 443. 54 Me. 365. 
 Calkins ^Caulkins) v. Mathews, N. S. viii. 447. 
 
 5 Kans 191 
 Callahan ii. Bean. N. S. ir. 445. 9 Allen 401. 
 Callanan v. Van Vleok, N. S. 1. 636. 36 Barb. 
 
 324. 
 Calvit V. McFadden, O. S. iv. 444. 13 Texas 
 
 324. 
 Cambridge v. Cambridge R. R. Co., N. S. v. 317. 
 
 10 Allen 50. 
 Camden & A. R. E. Co. v. Shea, N. S. xiv. 581. 
 
 66 111. 471. 
 Camden iSi Amboy R. R. Co. v. Stewart, N. S. 
 
 viii. 121. 4 C. E. Green 69, 343. 
 Cameron et al, v. Adams, N, S. xiv. 704. 31 
 
 Mich. 71. 
 Camp V. Grant, O. S. i. 570. 21 Conn. 41. 
 Camp V. Norton, N. S. viii. 319. 52 Barb. 96. 
 Campan (Campau) v. Shaw, N. S. vi. 319. 15 
 
 Mich. 226. 
 Campan (Campau) v. Van Dyke, N. S. vi. 635. 
 
 15 Mich. 371. 
 Campbell-!). Adams, N. S. ii. 506. 38 Barb. 132. 
 Campbell v. B. R. & A. W. & M. Co., N. S. viii. 
 
 503, 35 Cal. 669. 
 Campbell v. Brown, 0. S. 1. 125. 19 Penna. St. 
 
 369. 
 Campbell v. Campbell, N. S. xiii. 195. 65 Barb. 
 
 639. 
 Campbell v. Collison (Cothran), N. S. xiii. 198. 
 
 65 Barb. 534. 
 Campbell v. Hand, N. S. v. 181. 49 Penna. St. 
 
 234. 
 Campbell v. Hicks, 0. S. vii. 510. 28 L. J. Ex. 
 
 70. 
 Campbell v. King. 0. S. i. 122. 
 Campbell v. Miller. N. S. viii. 318. 38 Ga. 304. 
 Campbell i'. Schuylkill Co., 0. S. i. 438. 
 Campbell v. White, N. S. xi. 534. 22 Mich. 178. 
 Campbell v. Wilcox, N. S. x. 205. 10 Wall. 421. 
 Campbell ». Woodworth, N. S. ii. 251. 10 E. P. 
 
 Smith (N. Y.) 304. 
 Canal Co. v. Bentley, N. S. jt. 746. 66 Penna. 
 
 St. 30. 
 Canal Co. v. Coal Co., N. S. ix. 192. 8 Wall. 276. 
 Canal Company v. Fagan, N. S. vii. 700. 3 C. E. 
 
 Greeh 215. 
 Candler v. Tillett. 0. S. vi. 68. 22 Bea,v. 263. 
 Cannon v. Boyd, N. S. xiii. 456. 73 Peuna. St. 
 
 179. 
 Cannon v. Cooper, N. S. vi. 507. 39 Mi. 784. 
 Caperton v. Ballard, N. S. xii, 198. 14 Wall. 238. 
 (Jard V. Patterson, O. S. iv. 702. 5 Ohio St. 319. 
 Cardell v. Bridge. N. S. iv. 447. 9 Allen 355. 
 Cardell ti. Ryder, N. S. iv. 56. 35 Verm. 47. 
 Carew, N. S. iii. 439. 31 Beav. 39. 
 Carey's Appeal, N. S. xiv. 122. 75 Penna. St. 
 
 201. 
 Carithers v. Weaver. N. S. x. 607. 7 Kans. 110. 
 Carlisle v. Cooper, N. S. vii. 698. 3 C. E. Green 
 
 241. 
 Carlisle v. Cooper, N. S. viii. 249. 4 C. E. Green 
 
 256. 
 Carlisle v. The State, N. S. x. 64. 32 Ind. 55. 
 Carlton v. Davis. N, S. iv. 119. 8 Allen 94. 
 Carmody v. Brooks, N. S. xiv. 400. 40 Md. 240. 
 
 Camahan v. Dyer. O. S. ii. 121. 
 
 Carpenter v. Carpenter, N. S. xiv. 57. 45 Ind. 
 
 142. 
 Carpenter v. Catlin, N. S. v. 249. 44 Barb. 75, 
 Carpenter v. Baston & Amboy B. E. Co., N. S. 
 
 xiii. 328. 9 C. E. Green 249, 408. 
 Carpenter v. Halsey, N. S. xi. 62. 60 Barb. 45. 
 Carpenter v. McCliire, N. S. vi. 440. 39 Verm. 9. 
 Carpenter v. Muren. N. S. iv. 255. 42 Barb. 300. 
 Carpenter v. Tatro, N. S. xiv. 320. 36 Wis. 297. 
 Carpenter v. United States, N. S. xiii. 336. 17 
 
 Wall. 489. 
 Carpenter v. Welch, N. S. vii. 638. 40 Verm, 251. 
 Carpenter v. Williams, N. S. ix. 519. 9 Wall. 
 
 785. 
 Carpentier v. Minturn, N. S. xiii. 253 ; N. S. xiii. 
 
 260. 65 Barb. 293. 
 Carpentier ». Small, N. S, viii. 605. 35 Cal. 346. 
 Carr v. Chartiers Coal Co., O. S. iv. 442. 25 
 
 Penna. St, 337. 
 Carr v. Coopwood, O. S. i. 699. 24 Miss. 256. 
 Carr(Cass)D.McDonald,N. S. vl.565. 39 Verm. 
 
 65. 
 Carr v. Passaic L. Imp. Co., N. S. xi. 57. 7 C. E. 
 • Green 85. 
 Carr v. Townsend'a Exr's, N. S. x. 201. 63 
 
 Penna St. 202. 
 Carrjj. Walford.O. S. ii. 181. 
 Carr v. Weld, N. S. viii. 244. 4 C. E. Green 319. 
 Carrick's Adm'r v. Carrick's Ex'r, N. S. xii. 
 
 460. 8 C. E. Green 364. 
 Carrico v. Farmers & Merc. Nat. Bank, N. S. x. 
 
 414. 33Md. 235. 
 Carrier v. Cameron, N. S. xiv, 588. 31 Mich. 373. 
 Carrier v. Sears, N. S. i. 765. 4 Allen 336, 339. 
 Carroll v. Cone, N. S. iii. 319. 40 Barb. 220. 
 Carroll v. Mix, N. S. viii. 59. 51 Barb. '212. 
 Carroll v. Staten I. R. R. Co., N. S. xii. 664, 669. 
 
 65 Barb. 32. 
 Carroll, The, N. S. ix. 118. 8 Wall. 302. 
 Carrow v. Kelly, N. S. x. 600. 59 Barb. 239. 
 Carson v. Baillie, O. S. i. 125. 19 Penna. St. 375. 
 Carson v. Hunter, N. S. x. 64. 46 Mo. 467. 
 Carson v. Kerr, N. S. x. 602. 7 Kans. 268. 
 Carson v. Gates, N. S. ix. 385. 6i N. C. 115. 
 Carter v. Allen, N. S. xi. 463. 59 Me. 296. 
 Carter v. Burr, N. S. ii. 702. 39 Barb. 59. 
 Carter v. Bart, N. S. vi. 506. 12 Allen 424. 
 Carter v. Carter, N. S. ix. 195. 44 Mo. 195. 
 Carter v. Hunt. N. S. iii. 252. 40 Barb. 89. 
 Carteret v. City of Portland, N. S. xiii. 682. 4 Or- 
 egon 339. 
 Cartwright v. Green, N. S. vi. 440. 47 Barb. 9. 
 Carlwright v. Greene, N. S. v. 435. 47 Barb. 9. 
 Cartwright v. Wilmerding, N. S. ii. 122. 10 E. 
 
 P. Smith (N. Y.) 521. 
 Casco Bank v. Keene, N. S. vi. 249. 53 Me. 103. 
 Case V. Brown, N. S. iv. 575. 2 Wall. 320. 
 Case V. Peters, N. S. x. 666. 20 Mich, 298. 
 Case V. Wildridge. 0. S. i. 696. 4 Ind. 51. 
 Case V. Wolcott, N. S. x. 670. 33 Ind. 5. 
 Case of Broderick's Will, N. S. xiv. 523. 21 
 
 Wall. 503. 
 Casey r. Suter, N. S. xii. 52. 36 Md. 
 Cash V. Earnshaw, N. S. xiv. 587. 66 111. 402. 
 Cassidy v. Le Fevre etak.'M.S. x. 124. 57 Barb. 
 
 313. 
 Catawissa R. R. Co. v. Titus, N. S. v. 184. 49 
 
 Penna. St. 277. 
 Catlin V. Tobias, N. S. iii. 571. 12 E. P. Smith 
 
 (N. Y.) 217. 
 Cattison v. Cattison, O. S. 11. 184. 22 Penna. St. 
 
 275. 
 Caujolle V. Perrie, N. S. i. 127. 9 E. P. Smith 
 
 (N.Y.)90. 
 Cavendish, Town of v. To-\vn of Troy, N. S. 
 
 viii. 639. 41 Verm. 99. 
 Cayzer v. Taylor. N. S. iii. 187. 10 Gray 274. 
 Cemetery Co. v. Turner, N. S. xiii. 198. 9 C. E. 
 
 Green 18. 
 Cessna, Ex'r v. Rupel, Ex'r, O. S. i. 639. 
 Chadbourne v. New Castle, N. S. ix. 517. 48 N. 
 
 H. 196. 
 Chadwick v. Baker, N. S. vii. 192. 54 Me. 9. 
 Chadwiok v. Burnley Improvement Co N S 
 
 iv. 309. Q. B. 12 W. K. 1877. 
 
TABLE OF ABSTRACT CASES. 
 
 1041 
 
 Chadwlcli V. Butlers, N. S. xiii. 455. 28 Mich. 
 
 349. 
 Chamberlain v. Martin, N. S. v. 190. 43 Barb. 
 
 607. 
 Chamberlain, Matter of, N. S. iv. 818. 42 Barb. 
 
 281. 
 Chamberlain v. Preble, N. S. vi. 128. U Allen 
 
 370. 
 Chamberlain v. The People, N. S, i. 128. 9 E. 
 
 P. Smith (N. Y.) 85. 
 Chamberlin v. Donahue, N. S, viii. 632. 41 
 
 Verm. 806. 
 Chamberlin V. Donahue, N, S, xii. 732. 46 
 
 Verm. 50. 
 Cliambers v. Livermore, N. S. vi. 635. 15 Mich. 
 
 381. 
 Chambers v. Marks, O. S. iv. 441. 25 Penna. 
 
 St. 296. 
 Chambers v. Mason, O. S. viii. 251. 5 Jur. N. S. 
 
 148. 28 L. J. Q. a 232. 
 Chambers v. Miller, N, S, iii. 439. 32 L. J. C. 
 
 P. 30. 
 Chancellor v. Schott, O. S. ii. 509. 20 Penna. 
 
 St. 195. 
 Chandler v. Dyer, N. S. v. 508. 37 Verm. 345. 
 Chapman v. Chapman & Gansamer, N. S. viii. 
 
 7.")6. 59 Penna, St. 214. 
 Chapman v. Foster, N. S. iii. 317. 6 Allen 136. 
 Chapman v. People ex rel. Pratt, N. S. vi. 319. 
 
 15 Mich. 184. 
 Chapman u. Swan, N. S. xiii. 257. 65 Barb. 
 
 210. 
 Chapmaii Township v. Herrold, N. S. viii. 633. 
 
 58 Penna. St. 106. 
 Charlesworth v. Holt, N. S. xiii. 590. 29 L. T. 
 
 N. S. 647. S. C. L. R. 9 Exch. 38. 
 Charnley i'. Grundy, O. S. iii. 123. 18 Jur. 
 
 653. 
 Chase v. Alliance Ins. Co., N. S. iv. 446. 9 AUen 
 
 311. 
 Chase v. Bank, N. S. x. 794. 66 Penna. St. 169. 
 Chase v. Chase, N. S. i. 246. 2 Allen 101. 
 Chase v. Dow, N. S. viii. 59. 47 N. H. 405. 
 Chase ti. Kittredge, N. S. vi. 64. 11 Allen 49. 
 Chase i: N. Y. Cent. R. R. Co., N. S. iii. 635. 12 
 
 E. P. Smith (N. Y.) 523. 
 Chase v. Petroleum Bank. N. S. x. 794. 66 
 
 Penna. St. 169. 
 Chauneey v. Arnold, N. S. ii. 317. 10 E. P. 
 
 Smith (N.Y.) 330. 
 Cheadle v. The State of Ohio, O. S. iv. 634. 4 
 
 Ohio St. 477. 
 Cheatham v. Shearon, O. S. ,i. 380. 1 Swan 213. 
 Chelvers (Chilvers) v. People, N. S. ii. 570. 11 
 
 Mich. 43. 
 Chenango Bridge Co. v. Lewis, N. S. xU. 260. 
 
 63 Barb. 111. 
 Cherry v. Savage, N. S. ix. 384. 64 N. C. 103. 
 Chesapeake Bank v. First National Bank of 
 
 Baltimore, N. S. xiv. 259. 40 Md. 269. 
 Chesapeake Bank v. Swain, N. 3. viii. 754. 29 
 
 Md. 483. 
 Chesbrough v. Wright, N. S. iii. 444. 41 Barb. 
 
 28. 
 Chesney v. Eodgera (Rogers), N. S. x. 200. 1 
 
 Heiskell 239. 
 Chibs (Chiles) v. Smith's Heirs, O. S. i. 444. 13 
 
 B. Monroe 460. 
 
 Chicago C. & h. Railroad v. West, N. S. xii. 596. 
 
 37 Ind. 211. 
 Chicago & N. W. Railway Co. v. James, N. S. 
 
 ix. 260. 24 Wis. 388. 
 Chicago Oil Co. v. V. S. Petroleum Co., N. S. 
 
 viii. 314. 57 Penna. St. 83. 
 Chicago R. I. & P. E. W. Co. v. Herring, N. S. 
 
 xii, 196. 57 XU. 69. 
 Cliild V. The Eureka Powder Works, N. S. v. 
 
 701. 45N. H. 547. 
 Chilton V. Braiden's Adm'r, N. S. iii. 53. 2 
 
 Black 458. 
 China. The, N. S. viii. 437. 7 Wall. 53. 
 Chisholm v. Colemen, N. S. viii. 693. 43 Ala. 
 
 204. 
 Choke V. Lorman. N. S. x. 602. 20 Mich. 327. 
 Christiana, The, O. S. i. 50. 7 Moore's Rep. P. 
 
 C. 160. 
 
 66 
 
 Christie & S. v. Craig & Peterson, O. S. i. 436. 
 
 20 Penna. St. 430. 
 Christopher u. Van Liew, N. S. ix. 716. 57 Barb. 
 
 17, 
 Christy v. Pridgeon, N. S. vi. 437. 4 Wall. 196. 
 Church V. First Presby. Society, N. S. xiv. 64.). 
 
 25 Ohio St. 128. 
 Church V. Haims, 0. S. ii. 182. 31 Penna. St. 9. 
 Church V. Parker, N. S. i. 571. 36 Barb. 171. 
 Church V. Proctor, N. S. xiv. 683. 66 111. 11. 
 Church II. Wiifhter, N. S. iv. 192. 42 Barb. 43. 
 Churchill v. Stone, N. S. x. 312. 68 Barb. 233, 
 Church of Advent v. Farrow, O. S. iii. 572. 7 
 
 Richardson Eq. 378. 
 Cincinnati i;. Evans, N. S. iv. 699. 10 Allen 69.1. 
 Circassian, The, N. S. iv. 602. 2 Wall. 135. 
 Citizens' Nat. Bank v. Culver, N. S. xiv. 642. 
 
 54 N. H. 327. 
 City of Aurora v. Reed, N. S. xii. 195. 57 111, 29. 
 City of Boston v. Worthingtou, N. S. ill. 186. 
 
 10 Gray 496. 
 City of Cambridge v. Cambridge R. R. Co,, N. 
 
 S. V. 317. 10 Allen .50. 
 City of Cincinnati v. Evans, O. S. iv. 699. 5 
 
 Ohio St. 594. 
 City of Cincinnati v. Stone, 0. S. iv. 628. 5 Ohio 
 
 St 38 
 City of Delphi v. Evans, N. S. xii. 326. 36 Ind. 
 
 90. 
 City of Detroit v. Corey, N. S. i. 186. 5 Cooley 
 
 165. 
 City of Evansville v. Evans, N. S, xii. 533. 37 
 
 Ind. 229. 
 City of Grand Rapids n. Hughes, N. S. vi. 819. 
 
 15 Mich. 64. 
 City of JoUet v. Verley, N, S, v. 445. 35 111, 68. 
 City of Lexington v. IJutler, N. S. xii. 127. 14 
 
 Wall. 282, 
 City of Madison v. Korbly, N. S. x. 70. 32 Ind, 
 
 79. 
 City of Phila, v. Gilmartin, N. S. xii. 791. 71 
 
 Penna. St. 140. 
 City of Portsmouth v. Shackford, N. S. vi. 446. 
 
 46 N. H. 423. 
 City of Rochester v. Erickson, N. S. vi. 123. 46 
 
 Barb. 92. 
 City of Savannah v. CuUens, N. S. viii. 314. 38 
 
 Ga. 334. 
 City of Springfield v. Harris, N. S, ii. 380. 4 
 
 AUen 494. 
 City of St. Louis v. De Nouij, N. S. viii. 383. 
 
 44 Mo. 136. 
 City of Utica v. Churchill, N. S. v. 122. 43 Barb. 
 
 550. 
 Citv of Zanesville v. Richards, 0. S. iv. 767. 5 
 
 Ohio St. 589. , • 
 City, The v. Lamson, N. S. Ix. 577. 9 Wall. 477. 
 Claflin V. Cogan, N. S. ix. 512. 48 N, H. 411. 
 Claims of Marcuard, N. S. xiv. 117. 20 WaU. 
 
 114. 
 Clare v. Clare, N. S. viii, 122. 4 C, E. Green 37. 
 Claremont Bank v. Clark, N. S. vi. 246. 46 N. 
 
 H, 134. 
 Clarence, The, 0. S. i. 52. 3 Rob. Adm^Cas. 
 
 283. 
 Clark V. Bonsfleld (Bousfleld), N. S.ix. 774. 10 
 
 Wall. 133. 
 Clark V. City of Elizabeth, N. S. xiv- 127.. 8 
 
 Vroom 120. 
 Clark ti. Condit.N. S. vii.763. 3 C.E.Green- 358. 
 Clark V. Coolidge, N. S, xi. ,58. 8 Kans. 189. 
 Clark, Adm'r v. Crosby, N. S. v. 316, 317. 37 
 
 Verm. 188, 
 Clark V. Cumins, N. S, ix. 124. 47 III. 372. 
 Clark V. Davis, N. S. iii. 376. 1 Redfield's Sur- 
 
 rog. R. 249. 
 Clark V. Denigh, O. S. ii. 609, 
 Clark V. Eckstein, O. S. ii. 608. 22 Penna. St. 
 
 507. 
 Clark V. Garfield, N. S. iv. 312. 8 Allen 427. 
 Clark V. Gilbert, N. S. iii. 699. 12 E. P. Smith 
 
 (N, Y.) 279, 
 Clark V. Griffith, N. S. il. 120. 10 E. P. Smith 
 
 (N. Y.) 595. 
 Clark V. Herring & Mock, N. S. xl. 331, 333. 42 
 
 Ga. 240. 
 
1042 
 
 TABLE OP ABSTEACT OASES. 
 
 Clark V. Iselin, N. S. xiv. 520. 21 WalT. 360. 
 Clark V. Marshall, N. S. iv. 120. 34 Mo. 42U. 
 Clark V. Sifartin, N. S. v. ISi, 192, 255. I'J Peuna. 
 
 St. 289, 299. 
 Clark V. Miller, N. S. vi. 443. 47 Barb. 38. 
 Clark V. Parkinson, N. S. v. 508. 10 Allen 133. 
 Clark V. Reyburn, N. S. i:^. 125. 8 Wall. 318. 
 Clark V. Robinson, N. S. x. 537. 58 Me. 133. 
 Clark V. Smith, N. S. i. 182. 34 Barb. 140. 
 Clark V. Tennison (Tennyson), N. S. x. 415. 33 
 
 Md. 85. 
 aark r. Titcomb, N. S. iv. 124. 42 Barb. 122. 
 Clark V. Watkins, N. S. iii. 627. 9 Jur. N. S. 142 ; 
 
 8L. T. N. S. 8; 11 W. B. 319. 
 Clark V. Wells, N. S. xli. 736. 45 A'erm. 4. 
 Clark V. Whitaker. N. S. xi. 329. 50 N. H. 474. 
 Clark V. Willett, N. S. Tiii. 501, 604. 35 Cal. 
 
 534. 
 Clark's Adm'r v. Han. & St. Jo. R. R. Co., N. S. 
 
 V. 447. 36 Mo. 202. 
 Clark'^ Exeo'rs v. Canfleld, N. S. vi. 573. 2 
 
 McCarter 119. 
 Clarke v. Birmingham & Pitts. Bridge Co., N. 
 
 S. ii. 188. 41 Penna. St. 147. 
 Clarke v. Bovle, N. S. ix. 718. 61 111. 104. 
 Clarke v. Smith, Ex's, N. S. vi. 120. 46 Barb. 
 
 30. 
 Clarke v. Steamboat Fashion, O. S. ii. 696. 2 
 
 Wall Jr 339. 
 Clay D.'ciay. O.' S. iy. 446. 13 Texas 195. 
 Clay (Turner's) Adm. v. Potton, N. S. xiii. 392. 
 
 49 Ala. 406. 
 Clay F. & M. Ins. Co. v. Huron S. & L. Manuf. 
 
 Co., N. S. xiv. 460. 31 Mich. 346. 
 Clayton v. Scott. N. S. xi. 55. 43 Verm. 553. 
 Clearwater v. Meredith, N. S. iii. 696. 1 Wall. 
 
 25. 
 Clemens v. Rannels, N. S. iv. 121. 34 Mo. 
 
 579. 
 Clement v. Kaighn, N. S. vi. 575. 2 McCarter 
 
 47. 
 Clements v. Marston, N. S. xii. 530, 536. 52 N. 
 
 H. 31. 
 Clements v. Moore, N. S. vii. 379. 6 Wall. 299. 
 Ciemmons v. Hampton, N. S. ix. 680. 64 N. C. 
 
 264. 
 Clendenon v. Pancoast, N. S. xiv. 193. 76 
 
 Penna. St. 213. 
 Cleveland v. Boerum, N. S. ii. 184. 10 E. P. 
 
 Smith (N. Y.) 613. 
 Cleveland v. Citizens' Gas Light Co., N. S. ix. 
 ■ 388. 5 C. E. Green 201. 
 Cleveland & Pitts'h R. R. Co. v. Speer, N. S. 
 
 viii. 63. 66 Penna. St. 325. 
 Cleveland. &c.. R. R. Co. v. Long, N. S. xiii. 
 
 781. 24 Ohio St. 133. 
 Cleveland v. Wolf, N. S. x. 403. 7 Kans. 184. 
 Clifford V. The Overseer of -the Poor, N. S. xiv. 
 
 261. 8 Vroom 152. 
 Cliquot's Champagne, N. S. v. 607. 3 Wall. 
 
 114. 
 Clos V. Boppe, N. S. xii. 60. 8 C. E. Green 270. 
 Close V. Fields, O. S. iv. 444. 13 Texas 623. 
 Closson V. Cox, O. S. ii. 509. 
 Closson V. Morrison, N. S. viii. 60. 47 N. H. 
 
 482. 
 Oute V. Potter, N. S. ii. 187. 37 Barb. 199. 
 Coal Co. II. Coal & Nav. Co., N.S.v. 443. 60 
 
 Penna. St. 91. 
 Coal Co. V. Shultz, N. S. xii. 784. 71 Penna. St. 
 
 180. 
 Coal Co. V. Smith, N. S. xii. 735. 71 Penna. St. 
 
 230. 
 Coal & Iron Co. v. Steam Coal Co., N. S. ii. 701. 
 
 S9 Barb. 16. 
 Cobb 11. Bennett, N. S. xiv. 260. 75 Penna. St. 
 
 326. 
 Cobb V. Blanchaid, N. S. vi. 126. 11 Allen 
 
 409. 
 Cobb t>. Buswell, N. S. iv. 252. 37 Verm. 337. 
 Cobb V. Cowdery, N. S. vii. 572. 40 Verm. 25. 
 Cobb a.Dows. O. S. i. 178. 
 Cobb V. Ins. Co., N. S. x. 604. 68 Me. 326. 
 Cobb V. Lime Rock F. &. M. Ins. Co., N. S. X. 
 
 em. 68 Me. 326. 
 Cobbctl D.Hudson, 0. S. i. 306. 
 
 Coburn v. Coxeter. N. S. xi. 722. 51 X. H. 158, 
 Coburu V, Wheelock, N. S. iv. 125. 42 Barb. 
 
 207. 
 Cochico Nat. Bank v. Hasbik (Haskell), N. S. 
 
 xi. 720. 51 N. H. 116. 
 Cochran el al. v. Nebeker ei al., N. S. xiv. 580, 
 
 48 Ind. 459. 
 Cockev V. Cole. N. S. viii. 248. 28 Md. 276. 
 Codman v. Evans, N. S. ii. 699. 5 Allen 308. 
 Coes W.Nash. N. S. xiii. 451. 28 Mich. 269. 
 Coffin V. Loring, N. S. ii. 699. 5 Allen 153. 
 Cofian V. Loring, N. S. v. 189. 9 Allen 154. 
 CogKill-u. Miirburn Land Co., N. S. xiv. 328. 
 
 IOC. E. Green 87. 
 Coit V. Fougera, N. S. i. 671. 36 Barb. 196. 
 Colburn v. Lansing, N. S. vi. 123. 46 Barb. 37. 
 Cole V. Bell, N. S. vii. 265. 48 Barb. 194. 
 Cole V. Cornelius, N. S. xiv. 642. 647. 
 Cole. Receiver v. Ryan, N. S. viii. 379. 52 Barb. 
 
 168. 
 Cole I'. Shnrtleff & Trustee, N. S. viii. 636. 41 
 
 Verm. 311. 
 Colebrook v. Merrill, N. S. xi. 335. 49 N. H. 213. 
 Colebrook, Town of D.Merrill, N. S. v. 703. 46 
 
 N. H. 160. 
 Coleman v. Edwards, 0. S. iv. 695. 5 Ohio St. 
 
 51. 
 Coleman v. Forbes, 0. S. ii. 122. 22 Penna. St, 
 
 156. 
 Coleman v. Lanning (Lansing), N. S. xii. 665, 
 
 65 Barb. 54. 
 Coleman v. Playsted. N. S. i. 808. 36 Baib, 26, 
 Coleman v. Rowland, O. S. ii. 508, 571. 
 Coles V. Simms, 0. S. iii. 124. 18 Jur. 683. 
 Colgate V. Buckingham, N. S. iii. 60. 39 Barb, 
 
 177, 
 Collins, In re, N. S. vii. 700. 3 C. E. Green 253, 
 Collins V. Brook, 0. S. vii. 566. 29 L. J. Ex. 143. 
 Collins Co. V. Reeves, O. S. vii. 506. 28 L. J. 
 
 Oh. 66. 
 Colton V. Beardsley, N.' S. ii, 661. 38 Barb. 29. 
 Columbia Bank v. Jacobs, N, S. ii. 126. 10 
 
 Cooley 349. 
 Columbia Ins. Co. v. Masonheimer, N. S. xiv. 
 
 523. 76 Fenna St. 138. 
 Columbus, Piqua & Indiana R. Co. v. Simpson, 
 
 O. S. iv. 696. 5 Ohio St. 2f)l. 
 Columbus & Shelby R. R. Co. v. Watson, N. S. 
 
 vi. 716, 718. 26 Ind. 50. 
 Combs V. Hudson, N. S. xii. 597. 37 Ind. 198. 
 Combs V. Mansfield, O. S. iii. 511. 19 Jur. 271. 
 Combs V. Scott, N. S, vi. 663, .568. 12 Allen 493. 
 (iomer v. Chamberlain, N. S. iii. 317. 6 Allen 
 
 166. 
 Commander in Chief, The, N. S. iii. 694. 1 
 
 Wall 43. 
 Commerce, The. O. S. i. 50. 3 Hob. Ad. Cas. 287. 
 Commercial Bank of Kentucky v, Barksdale, 
 
 N.S.v. 442. 36 Mo. 563. 
 Commercial Bank of Rochester v. CityRoches- 
 ■ ter, N. S. iii. 639. 41 Barb. 341. 
 Commercial & F. N. Bank v. First Nat'l Bank, 
 
 N.S. ix.317. 30Md. 11. 
 Comm's V. Walker, N. S. xi. 355. 8 Kans. 431. 
 Comm's of Coffey Co. v. Venard, N. S. xii. 633. 
 
 10 Kans. 95. 
 Commonwealth v. Ahl, N. S. ii. 633. 43 Penna. 
 
 St. 53. 
 Commonwealth v. Ashlock, N. S. vi. 441. 1 Ky. 
 
 139. 
 Commonwealth v. Boyer, N. S. iii. 668. 7 Allen 
 
 306. 
 Commonwealth v. Bridge Co., O. S. i. 438. 20 
 
 Penna. St. 185. 
 Commonwealth v. Capp, N. S. iv. 637. 48 
 
 Penna. St. 53. 
 Commonwealth v. Casey, N. S. vi. 441. 12 Allen 
 
 214. 
 Commonwealth v. Chatams (Chathams), N. S. 
 
 V. 377. 50 Penna. St. 181. 
 Commonwealth v. Cluley, N. S. viii. 62. 66 
 
 Penna. St. 270. 
 Commonwealth v. Collins, N. S. vi. 438. 12 Al- 
 len 181. 
 Commonwealth v. Conuell, N. S. v. 125. 9 Al- 
 len 488. 
 
TABLE OF ABSTEACT CASES. 
 
 1043 
 
 Commomvealth v. Curtis, N. S. iv. 510. 9 Allen 
 
 266. 
 Commonwealth v. Densmore, N. S. vi. 568. 12 
 
 Allen .535. 
 Commonwealth v. Dower, N. S. ii. 182. 4 Allen 
 
 297. 
 Commonwealth v. Franklin Canal Co., O. S. i. 
 
 249. 21 Penna. St 117. 
 Commonwealth r. Galvaran (Galavan), N. S. 
 
 V. 185, 9 Allen 271. 
 Commonwealth v. Goddard, N. S. ii. 182. 4 
 
 AHun 312. 
 Commonwealth v. Hamilton Man. Co"., N. S. vi. 
 
 437. 12 Allen 298. 
 Commonwealth v. Hardiman, N. S. \. 63. 9 
 
 AUen 487. 
 Commonwealth v. Haupt, N. S. v. 316. 10 Al- 
 len 38. 
 Commonwealth v. Henry, O. S. ii. 182. 22 
 
 Penna. St. 2.53. 
 Commonwealth v. Hersey, N. S. 1. 178. 2 Allen 
 
 173. 
 Commonwealth u. Holbrook, N. S. v. 570. 10 
 
 Allen 200. 
 Commonwealth v. Jacobs, N. S. v. 189. 9 Allen 
 
 274. 
 Commonwealth v. Lowell Gaslight Co., N. S. 
 
 vi. 384. 12 Allen 75. 
 Commomvealth v. Lucas, N. S. i. 124. 2 Allen 
 
 170. 
 Commonwealth v. McKle,0. S. Hi. 58. 1 Gray 61. 
 Commonwealth v. Mohn, N. S. vi. 634. 52 
 
 Penna. St. 243. 
 Commonwealth v. Murphy, N. S. i. 766. 4 Al- 
 len 491. 
 Commonwealth v. People's Savings Bank, N. 
 
 S. ii. 767. 6 AUen 429. 
 Commonwealth v. Plumer, O. S. i. 124. 
 Commonwealth v. Pratt, N. S. i. 765. 
 Commonwealth v. Provident Ins. for Savings, 
 
 N. S. vi. 511. 12 Allen 312. 
 Commonwealth v. Shaw, N. S. i. 764. 4 Allen 
 
 308. 
 Commonwealth v. Smith, N. S. iii. 574. 45 
 
 PPTlTlfi. St ^*} 
 
 Commonwealth v. Smith, N. S. v. 574. 10 Al- 
 len 44. 
 Commonwealth v. Starr, N. S. i. 764. 4 Allen 
 
 301. 
 Commonwealth v. Stewart's Ex'r, O. S. 1. 638. 
 Commonwealth v. Stump, N. S. vil. 61. 53 
 
 Penna. St. 132. 
 Commonwealth v. Thompson, N. S. vi. 60. 11 
 
 Allen 23. 
 Commonwealth v. Thomiley, N. S. iii. 373. 6 
 
 Allen 445. 
 Comm'th v. Townsend, N. S. ii. 768. 5 Allen 216. 
 tJommonwealth v. Tuckerman, N. S. iii. 184. 
 
 10 Gray ITS. 
 Commonwealth v. White, N. S. y. 59. 9 Allen 
 
 195. 
 Commonwealth Ins. Co. v. Berger, N. S. ii. 505. 
 
 42 Penna. St. 285. 
 Commonwealth Ins. Co. v- Sennett, N. S. ii. 311. 
 
 37 Penna. St. 205. 
 Company, Harmony v. Hazlehurst, N. S. ix. 
 
 4.51. 30 Md. 380. 
 Comparet v. Randall, 0. S. i. 694. 4 Porter 
 
 (Ind.) 65. 
 Comstock V. Buchanan, N, S. x. 131. 57 Barb. 
 
 127, 582. 
 Comstock V. Comstock Exrs., N. S. x. 123. 57 
 
 Barb. 4.53. 
 Cora.stock V. Howe (Howd), N. S. vi. 314. 15 
 
 Mich. 2.37. 
 Comstock V. Smith, N. S. x. 600. 20 Mich. 338. 
 Concord, Inhab's of v. Delaney, N. S. x. 664. 
 
 58 Me. 309. 
 Con (lit V. Blackwell, N. S. viii. 188. 4 C. E. 
 
 Green 193. 
 Confiscation Case.s, N. S. xiv. 116. 20 Wall. 92, 
 
 114, 115. 
 Congdon & Tennessee M. Co. v. Goodman, N. 
 
 S. iii. 54. 2 Black 574. 
 Conhockton Stone Co. v. Erie E. R. Co., N. S. 
 
 viii. 382. 52 Barb. 390. 
 
 Conklin v. Foster, N. S. xii. 257. 57 111. 104. 
 Conley v. Burson, N. S. x. l'J6. 1 Heiskell 145. 
 Conley v. Chilcote, N. S, xiv. 752. 25 Ohio St. 
 
 320. 
 Connary v. Jefferson, N. S. vi. 317. 46 N. H. 
 
 621. 
 Connecticut v. Stumm, 0. S. ii. 120. 31 Penna. 
 
 St. 14. 
 Connecticut Mutual Life Ins. Co. v. Cleveland, 
 
 Col. & Cin. R. R. Co., N. S. iii. 443. 41 Barb. 9. 
 Connery v. Brooke, N. S. xiii. 399. 73 Penna. 
 
 St. 80. 
 Connolly «. Poillon, N. S. iii. 763. 41 Barb. 366. 
 Conover v. Hobart, N. S. xiii. 196. 9 C. E. 
 
 Green 120. 
 Conrad v. Massasoit Ins. Co., N. S. i. 690. 4 
 
 Allen 20. 
 Conrad's Lots, N. S. xiv. 117. 20 Wall. 115. 
 Constant v. Abell, N. S. v. 445. 36 Mo. 174. 
 Constantine v. Fo-ster, N. S. xii. 197. 57 111. 36. 
 Convoy's Wheat, N. S. v. 509. 3 Wall. 225. 
 Conway v. Armington. N. S. xiv. 391. 11 R. I. 
 Conway v. Cutting, N. S. xii. 254. 61 N. H. 
 
 407. 
 Conway v. Showerman (Township Board), N. 
 
 S. vi. 320. 15 Mich. 267. 
 Cook V. Doggett, N. S. i. 317. 2 Alien 439. 
 Cook 1). Dunkle, 0. S. iv. 441. 25 Penna. St. 340. 
 Cook 1). Farren. N. S, i. 64, 34 Barb. 95. 
 Cook V. Mackrell, N. S. xii. 398. 70 Penna. St 
 
 12. 
 Cook V. Mills, N. S. ii. 443. 5 Allen 36. 
 Cook V. Rogers, N. S. xiv. 454. 31 Mich. 391. 
 Cook V. Shrouder, 0. S. iv. 443. 25 Penna. St. 
 
 312. 
 Cook V. The City of Milwaukee, N. S. ix. 263. 
 
 24 Wis. 270. 
 Cook V. Welch, N. S, Iv. 446. 9 Allen 350. 
 Cook & Scott V. Parham, 0. S. Hi. 54. 24 Ala, 21. 
 Cook & Gleason. In re, BT. S. xiii. 121. 3 Bis. 
 
 116, r22. 
 Cooke V. United States, N. S. iv. 505. 2 Wall. 
 
 218. 
 Coolidge V. Wells. N. S. x, 409, 20 Mich, 79. 
 Coombs V. Gorden, N. S. xi. 593. :a Me. 111. 
 Coon V. Atwell, N. S. vi. 378. 46 N. H. 510 
 Coon V. Browning, N, S. xii. 531. 10 Kans. 85. 
 Cooney v. Hayes, N. S. vii. 762, 763. 40 Verm. 
 
 478. 
 Cooney, Adm'r v. Woodburn, N. S. x. 476. 33 
 
 Md. 320. 
 Coope, Receiver k Bowles, N. S. iv. 122. 42 
 
 Barb. 87. 
 Cooper V. Blgley, N. S. v. 254. 13 Mich, 463. 
 Cooper V. Burr, N. S. v. 667, 672. 45 Barb. 9. 
 Cooper V. Cooper, N. S. xiv.^ 197. 24 Ohio St. 
 
 Cooper V. Grand Trunk R. Way, N. S. x. 204. 
 
 49 N. H. 209. 
 Cooper V. Hood, O. S. vii. 512. 28 L. J. Ch. 212. 
 Cooper V. McCluskan, O. S. iJ. 121. 22 Penna. 
 
 St. 80. 
 Cqoper V. Railway Co,, N. S. x. 204. 49 N. H. 
 
 209. 
 Cooper u Reynolds, N. S. x. 62. 10 Wall. 308. 
 Cooper V. Roche, N. S. xii. 326 36 Md. 
 Cooper V. Utterbach, xii. N. S. 789. 37 Md. 282. 
 Copeland, Adm'r (Sugg's Adm'r) v. Winston, 
 
 Adm'x, N. S. xiii. 397. 49 Ala. 586. 
 Coplin V. Ins. Co., N. S. ix. 450. 9 Wall. 461, 
 Coppernoll v. Ketcham, N. S. ix. 518. 66 Barb. 
 
 111. 
 Corhett v. Nutt, N, S. x. 206. 10 Wall. 464. 
 Corbitt II. Miller, N. S. v. 57. 43 Barb. 305. 
 Corcoran v. Gurney. O. S. ii. 62. 22 Law J. (N. 
 
 S.)Q. B. 113. „ ., 
 
 Corcoran i;. Judson,N. S.li. 251. 10 E. P. Smith 
 
 (N. Y.) 106. 
 Cordova v. Hood, N. S. xiii. 334, 336. 17 Wall. 1. 
 Cordwainers Co. v. Kearns, O. S. viii. 250. 5 
 
 Jur. N. S. 1126. 28 L. J. C. P. 285. 
 Corey v. Bishop, N. S. viii. 443. 48 N. H. 146. 
 Corey v. Burton a al., N. S. xiv. 706. 32 Mich. 
 
 80. 
 Corkhill v. Sanders (Landers), N. S. v. 509. H 
 
 Barb. 218. 
 
1044 
 
 TABLE OF ABSTEACT CASES. 
 
 Corley el at. v. Pentz, N. S. xiv. 523. 76 Penna. 
 
 St. 67. 
 Cornelius, The, N. S. v. 674. 3 Wall. 214. 
 Cornett v. ■Williams, N. S. xiv. 328. 20 Wall. 
 
 226. 
 Corning v. Troy Iron & Nail Works, N. S. ix. 
 
 63. 1 Hand (N.Y.) 191. 
 Cornman v. Bowser, O. S. i. 120. 
 Corporation of Erie v. Tracy, 0. S. i. 119. 2 
 
 Grant 20. 
 Corsica, The, N. S. ix. 508. 9 Wall. 630. 
 Corwin v. Suydam, N. S. xiv. 126. 24 Ohio St. 
 
 209. 
 Corwin v. Wallace, N. S. iv. 446. 17 Iowa 374. 
 Cory V. Davis, N. S. iii. 439. 14 C. B. N. S. 370. 
 Costello V. Syracuse, B. & C. E. E. Co., N. S. xii. 
 
 666. 65 Barb. 92. 
 Coster V. Tide- Water Co., N. S. vii. 760. 3 C. E. 
 
 Green 54, 518. 
 Cothran v. Lee, 0. S. iii. 56. 24 Ala. 380. 
 Cothren v. Connaughten, N. S. ix. 119. 24 Wis. 
 
 134. 
 Cottle II. Leitch, N. S. viii. 609. 35 Cal. 434. 
 Coulter's Ex'rs v. Marchand, O. S. ii. 187. 
 Count Joannes v. Bennett, N. S. ii. 767. 5 Allen 
 
 169. 
 County 0. Zimmerman, N. S. xiv. 125. 75 
 
 Penna. St. 26. 
 County of Yolo v. Sacramento, N. S. viii. 700. 
 
 36 Cal. 193. 
 County Commissioners v. Gibson, N. S. xii. 255, 
 
 264. 36 Md. 229. 
 Coursen v. Canfield and Others, N. S. x. 279. 6 
 
 C. E. Green 92. 
 Courtney v. MoGavock, N. S. ix. 119. 24 Wis. 
 
 54. 
 Covell (Cole) v. Moseley, N. S. vii. 191. 15 
 
 Mich. 514. 
 Cowart V. Perrine, N. S. x. 202. 6 C. E. Green 
 
 101. 
 Cowen V. Village of West Troy, N. S. iv. 510. 
 
 43 Barb. 48. 
 Coweuhoven v. City of Brooklyn, N. S. ii. 506. 
 
 38 Barb. 9. 
 Cowles, Ex'r Cowles v. Bacon, O. S. i. 566. 21 
 
 Conn. 451. 
 Cowles V. Mercer Co., N. S. viii. 246. 7 Wall. 
 
 118. 
 Cowls (Cowl) V. Varnum, N. S. v. 448. 37 111. 
 
 181. 
 Cox V. James, N. S, x. 601. 59 Barb. 144. 
 Cox V. Thomas, Adm'r, O. S. iii. 52. 9 Grat 
 
 312 
 Cox 'v. Wise, N. S. iv. 316. Q. B. 33 L. J. N. S. 
 
 281. 
 Cox's Executors v. Mathews, N. S. viii. 510. 41 
 
 Verm, 42. 
 Coyle 1). Western R. K. Co., N. S. vi. 505. 47 
 
 Barb. 152. 
 Craft V. Bent et al. N. S. xi. 329. 8 Kans. 328. 
 Craft V. Yeanev, N. S. x. 797. 66 Pa. 210. 
 Craig V. People, N. S. ix. 60. 47 111. 487. 
 Craig V. Ward, N. S. i. 767. 36 Barb. 377. 
 Craig, Ex. v. Kittredge, N. S. vi. 249. 46 N. H. 
 
 67. 
 Crain v. Cavana, N. B. i. 768 ; N. S. xi. 663. 62 
 
 Barb. 109. 
 Cram v. Burke, 0. S. iv. 443. 25 Penna. St. 377. 
 Cram v. Hadley, N. S. viii. 439. 48 N. H. 191. 
 Cram v. Union Bank of Rochester, N. S. iv. 
 
 307. 42 Barb. 426. 
 Crandall v. State of Nevada, N. S. vii. 440. 6 
 
 Wall. 35. 
 Crane v. Decamp and Others, N. S. x. 351. 6 C. 
 
 E. tJreen 414. 
 Crater v. Bininger. N. S. ix. 124. 54 Barb. 155. 
 <;rawford v. Burrell Township, N. S. vii. 127. 
 
 63 Penna. St. 219. 
 Crawford v. Clark, O. S. iii. 636. 15 111. 561. 
 Crawford v. Russell, N. S. xi. 592. 62 Barb. 92. 
 Creamer v. Bernondy ei al., N. S. viii. 383. 43 
 
 Mo. 552. 
 Creighton v. Kerr (Kehr), N. S. xiv. 115. 20 
 
 Wall. 8. 
 Oremer, Adm'r v. Town of Portland, N. S. xiv. 
 324, 36 Wis. 92. 
 
 Crisfield ii. Storr, N. S. xii. 65. 36 Md. 129. 
 Crissey v. Hestonville R'way Co., N. S. xir, 
 
 124. 75 Penna. St. 83. 
 Crocker v. Pierce, N. S. xili. 128. 61 Me. 58. 
 Crolins et al. v. Stark el al., N, S. xii. 472. 64 
 
 Barb. 112. 
 Cromptton v, Anthony, N. S. vii. 187. 13 Allen 
 
 33. 
 Cromwell v. Brooklyn Fire Ins. Co., N. S. iii. 
 
 123. 39 Barb. 227. 
 Cronin v. Hazletine, N. S. i. 569. 3 Allen 324. 
 Cronin v. Richardson, N. S. iv. 310. 8 Allen 
 
 423. 
 Cronk v. Trumlle (Tnimble), N. S, xiv. 683. 
 
 66 111. 428. 
 Crook V. Glenn, N. S. ix. 452. 30 Md. 55. 
 Crook V. Williams, 0. S. i. 442. 20 Penna. St. 
 
 342. 
 Crosbie v. Murphy, O. 8. viii. 262. 8 Irish 
 
 Com. Law Eep. 301. 
 Crosby v. Jeroloman, N. S. xii. 662, 665. 37 Ind. 
 
 264 
 Croskey v. Corey, N. S. ix. 385. 48 111. 442. 
 Croskey v. Northwestern Manfg Co., N. S. ix, 
 
 386. 48111.481. 
 Cross V. Brown, N. S. xi. 722. 51 N. H. 486. 
 Cross V. Be Valle, N. S. iii. 630. 1 Wall. 5. 
 Cross V. Noble, N. S. xi. 266. 67 Penna. St. 74. 
 Cross V. Sells, N. S. x. 195. 1 Heiskell 83. 
 CroBsgrove v. Himmelrich, N. S. vii. 312. 54 
 
 Penna, St. 203. 
 Crosskill v. Bower, N. S. iii. 439. 9 Jur. N. S. 
 
 267. 32 L. J. Chanc. 540. 
 Crouch V. Parker, N. S. iii. 253. 40 Barb. 94. 
 Croucher v. Oakman, N, S. i. 606. 3 Allen 185. 
 Crow V. Kightlingei, O. S. iv. 443. 25 Penne. 
 
 St. 343. 
 Crowe V. Hutchison, O. S. i. 52. 1 S. M, & P. 37. 
 
 18 L, T. 188, 
 Crowell V. Lawrence, N. S. i. 671. 36 Barb. 177. 
 Cruzan v. Smith, N. S. xlii. 191. 41 Ind. 288. 
 Cuckson V. Stones, O. S. vii. 508. 28 L. J. Q. B. 
 
 26. 
 Culver V. Parish, O. S. i. 668. 21 Conn. 408. 
 Cumberland Coal & Iron Co. v. The Hoffman 
 
 Steam Coal Co., N. S. ii. 701. S9 Barb. 16. 
 Cummings v. Diggs, N. S. x. 196. 1 Heiskell 67. 
 Cunningham's Estate, O. S. ii. 120. 
 Curd V. Wunder, O. S. jv. 692. 8 Ohio St. 92. 
 Curley v. Harris, N. S. vi. 61. II Allen 112. 
 Currier v. Webster, N. S. Jv. 444.. 46 N. H. 228. 
 Curtis V. Allegheny Co.. O. S. i. 12a 
 Curtis V. Fay, N. S. ii. 62. 37 Baib. 64. 
 Curtis V. Gano, N. S. iii. 635. 12 E. P. Smith 
 
 (N. Y.) 426. 
 Curtis V. Railroad Co., N. S. vii. 125. 49 Barb. 
 
 148. 
 Curtis V. Smith, N. S. xi. 63. 60 Barb. 9. 
 Curtis, Ex'r ;;. Cleighom, Ad., O. S. i. 696i 
 Cutler V. Everett, 0. S. i. 188. 33 Me. 201. 
 Cutler V. Robbins, N. S. si. 55. 43 Verm. 5*77. 
 Cutter V. Cambridge. N. S. iii. 316. 6 Allen 20. 
 Cynthia, The. 0. S. i. 49. 16 Jur. 748. 
 Cythe V. La Fontain, N. S. viii. 190. 51 Barb. 
 
 186. 
 
 Dadmun v. Lawson (Lamson), N. S. iv. 766. 9 
 
 Allen 85. 
 Daily v. New York & New Haven R. R. Co., N. 
 
 S. V. 58, 60. 32 Conn. 356. 
 Dale V. Faivre, N, S. viii. 379. 43 Mo. 656, 
 Dale V. Shively, N. S. xi. 271. 8 Kans. 276. 
 Dalrymple v. Shehan, N. S. x. 478. 20 Mich. 
 
 224. 
 Dalton V. Bentley, O. S. iii. 635. 15 111. 256, 420. 
 Dalton V. Landahn, N. S. xiii. 391. 27 Mich. 
 
 529. 
 Damon ti. Damon. N. S. iv. 192. 8 Allen 192. 
 Damon v. Felch. N. S. xi. 272. 
 Damon v. Hall, N. S. ii. 507. 38 Barb. 136. 
 Dana v. McClure, N. S. vi. 564. 39 Verm. 197. 
 Dana v. Sessions, N. S. vi. 383. 46 N. H. 609. 
 Dane v. Derby, N. S. vii. 190. M Me, 95. 
 Danforth v. Durell. N. S. iv. 117. 320. 8 Allen 
 
 242. 
 
TABLE OF ABSTEAOT CASES. 
 
 1045 
 
 Danforth v. Walker. N. S. v. S16. 37 Venn. 239. 
 Danforth & Co. v. Walker, N. S. vii. 635. 40 
 
 Verm. 267. 
 Daniels' Appeal, O. S. 1. 443. 
 Daniels v. Clegg, N. S. xiii, 458. 28 Mich. 82. 
 Daniels v. Hayward, N. S. ii. 446. 5 Allen 43. 
 Dann v. Cudney, N. S. iy. 673. 13 Mich. 289. 
 Dansey v. Bichardson, 0. S. iii. 123. E. & B. 
 
 144. 
 Dansville Seminary v. Welch, N. S. ii. 630. 38 
 
 Barb. 221. 
 Danville, Hazleton & Wilkesbarre E. R. Co. v. 
 Commonwealth, N. S. xiii. 397. 73 Penna. 
 St. 29. 
 Danzeisen's Appeal, N. S. xiii. 394. 73 Penna. 
 
 St. 65. 
 Darling v. Boston & Worcester E. R. Co., N. S. 
 
 vi. 58. 11 Allen 296. 
 Darrah v. Watson, N. S. xiv. 66. 36 Iowa 116. 
 Daubenspeck, Ex'r v. Powers. N. S. x. 62. 82 
 
 Ind. 42. 
 Davenport v. Davenport, N. S. lil. 63. 5 Allen 
 
 464. 
 Davenport v. Shants. N. S. xi. 60. 43 Verm. 546. 
 Davidson v. Little, O. S. ii. 183. 22 Penna. 245. 
 Davidson v. Nichols, N. S. vi. 190. 41 Allen 514. 
 Davies v. Burns, N. S., ii. 768. 5 Allen S4. 
 Davis V. Burton, N. S. vi. 637. 62 Penna. St. 22. 
 DavLs V. D. & M. Railroad Co., N. S. x. 477. 20 
 
 Mici. 105. 
 Davis V. Dudley, N. S. 1. 766. 4 Allen 557. 
 Davis V. Gillett, N. S. xii. 660. 52 N. H. 126. 
 Davis V. Goodrich, N. S. xii. 402. 45 Verm. 56. 
 Davis V. Herndon, N. S. vi. 504. 39 Miss. 484. 
 Davis V. Hill et al., N. S. xiii. 52. 65 Barb. 70, 
 
 435. 
 Davis V. Kenaga, N. S. ix. 776. 51 111. 170. 
 Davis V. Pattison, N. S. ii. 184. 10 E. P. Smith 
 
 (N. Y.) 317. 
 Davis V. Smith, N. S. xi. 51. 43 Verm. 269. 
 Davis V. Spencer, N. S. ii. 59. 10 E. P. Smith 
 
 (N. Y.) 386. 
 Davis V. State, N. S. xiii. 255. 38 Md. 15. 
 Davis V. State, N. S. ix. 512. 40 Geo. 229. 
 Davis, The, N. S. Ix. 774. 10 Wall. 15. 
 Davison ii. Moore, O. S. ii. 183. 22 Penna. St. 
 
 245. 
 Davit (McDavit) v. Pierrepont, N. S. xll. 328. 
 
 8 C. E. Green 42. 
 Daw V. Morgan. N. S. ix. 638, 645, 646, 647. 56 
 
 Barb. 218. 
 Dawley v. Brown, N. S. xU. 668. 65 Barb. 107. 
 Dawson v. Cotton, O. S. iv. 189. 26 Ala. 591. 
 Dawson v. Danbjiry Bank, N. S. vi. 638. 15 
 
 Mich. 489. 
 Dawson v. Susong, N. S. x. 207. 1 Heiskell 243. 
 Day V. Gallup, N. S. Iv, 504. 2 Wall. 97. 
 Day V. Inhabitants of Milford, N. S. ii. 609. 5 
 
 Allen 98. 
 Day, Matter of, N. S. xiii. 782. 34 Wis. 638. 
 Day-Light Burner Co. v. Odliu, N. S. xi. 658. 
 
 51 N rl 56 
 Dayton ii.Bo'rst, N. S. il. 563. 7 Bosw. 115. 
 Deal V. Bogue, O. S. 1. 250. 20 Penna. Sti 228. 
 Dean v. American Mutual L. Ins. Co., N. S. i. 
 
 690. 4 Allen 96. 
 Dean v. Fuller, N. S. i. 761. 40 Penna. St. 
 
 474. 
 Dean v. Hornby, 0. S. iii. 126. 18 Jur. 623. 
 Dean v. Negley, N. S. ii. 2.i2. 41 Penna. St. 312. 
 Dean v. Nelson, N. S. x. 69. 10 Wall. 158. 
 Dearborn v. Morse, N. S. xi. 594. 59 Me. 210. 
 Dearboura v. Bank, N. S. x. 608. 58 Me. 273. 
 Dearboum v. Union Nat. Bank, N. S. x. 608. 
 
 58 lie. 273. 
 Dearth v. Spencer, N. S. xii. 670. 52 N. H. 213. 
 De Beerski v. Paige, N. S. vi. 663. 47 Barb. 172. 
 Deblois V. Earle, N. S. ii. 442. 7 R. I. 26. 
 De Courcey v. Little, N. S. viil. 124. 4 C. E. 
 
 Green 115, 574. 
 De Cou's Appeal v. Mlddleton, N. S. iv. 315. 47 
 
 Peuna. St. 214. 
 Deering v. Flanders, N. S. xi. 61. 49 N. H. 225. 
 Deever v. Aikin, N. S. ix. 638. 40 Geo. 423. 
 De Forrest v. Denniston, N. S. 1. 58. 9 E. P. 
 Smith (N. Y.) 247. 
 
 Dehon r. Foster, N. S. iii. 606. 7 Allen 57. 
 Dela V. Stanwood, N: S. xiii. 126, 127. 61 Me. 
 
 61. 
 Delano v. American Ins. Co., N. S. iv. 124. 42 
 
 Barb, 142. 
 De La Rosa v. Prieto, N. S. iv. 809. 16 C. B. N. 
 
 S. 578. 
 Delashman v. Berry, N. S. x. 667. 20 Mich. 292. 
 D., L. & W. R. R. Co. V. Railroad Co., N. S. xiv. 
 
 703. 9Vrooml7. 
 Delaware, L. & W. Railroad Co. v. Passaic, N. 
 
 S. xiv. 259. 8 Vroom 137. 
 Delaware, The, N. S. xii. 126. 14 Wall. 679. 
 Delaware, The Barque v. Steamer Osprey, 0. 
 
 S. ii. 699. 2 Wall. Jr. 268. 
 DeUette v. Kemble, N. S. xii. 56. 8 C. B. Green 
 
 58. 
 Delphi V. Evans, N. S. xii. 326. 36 Ind. 90. 
 Delzell V. Ind. Cin. E. E. Co., N. S. x. 204. 32 
 
 Ind. 45. 
 Demingj). Grand T. EaUway Co., N. S. ix. 609. 
 
 48 N. H. 465. 
 De Moss V. Newton, N. S. ix. 452. 31 Ind. 219. 
 Dencola v. Wright, 0. S. ii. 510. 
 Denman v. McMahin, N. S. xii. 529, 580, 632. 
 
 37 Ind. 241. 
 Dennett v. Dennett, N. S. iii. 125. 44 N. H. 531. 
 Dennis v. Maxfleld, N. S. v. 506. 10 Allen 138. 
 Denny v. Denny, N. S. iv. 311. 8 Allen 311. 
 Denny v. Tyler, N. S. i. 507. 3 Allen 225. 
 Denny v. 'WilliamB, N. S. ii. 445. 5 Allen 1. 
 Denson v. Mitchell aiid Wife, O. S. iv. 253. 26 
 
 Ala. 360. 
 Dent's Appeal, O. S. ii. 446. 22 Penna. St. 514. 
 Dent V. Turpln, 0. S. ix. 703. 4 L. T. N. S. 637. 
 Deny (Day) v. Baker, N. S. v. 447. 36 Mo. 125. 
 Depeyster v. Michael, O. S. i. 182. 2 Selden (N. 
 
 DerinottV Jones. N. S. iv. 504. 2 Wall. 1. 
 Derocher v. Continental Mills, N. S. x. 603. 68 
 
 Me. 217. 
 Derwort v. Loomer, O. S. i. 566. 21 Conn. 246. 
 Detroit!). Corey, N. S. i. 186. 5 Cooley 165. 
 DetwUer v. Cox, N. S. xiv. 197. 75 Penna. St. 
 
 200. 
 Deveney v. Mahoney, N. S. xii. 63. 8 0. E. 
 
 Green 247. 
 Devlin v. The Second Avenue Railroad Co., N. 
 
 S. V. 315. 44 Barb. 81. 
 Devries v. Haywood N. S. ix. 447. 64 N. C. 377, 
 
 481. 
 Dewey v. Detroit, N. S. vi. 638. 15 Mich. 307. 
 Dewey v. Reed, N. S. iii. 188. 40 Barb. 16. 
 Dewey's Execr's v. Euggles, N. S. xiv. 327. 10 
 
 C. E. Green 35. 
 Dewitt V. Ackerman, N. S. v. 61. 2 C. E. Green 
 
 215 
 Dewy V. McLain, N. S. x. 471, 472. 7 Kans. 126. 
 Dexter v. Booth, N. S. i. 382. 2 Allen 559. 
 Dey V. Dey's Adm'r, N. S. viil. 127. 4 C. E. 
 
 Green 137. 
 Deysher v. Triebel, N. S. x. 402. 64 Penna. St. 
 
 Dibble v. Brown & Harris. 0. S. ii. 317. 12 Geo. 
 
 217. 
 Dickens v. The N. Y. Central E. E., N. S. i. 68. 
 
 9 E. P. Smith (N. Y.) 168. 
 Dickerson v. Wason, N. S. ix. 191. 64 Barb. 
 
 230. 
 Dickey v. Corliss, Adm'r, N. S. viii. 504. 41 
 
 Verm. 127. 
 Dickinson v. Board of Sup. of Livingstone Co., 
 
 N. S.iv. 704. 43 Barb. 232. 
 Dickinson v. Gay, N. S. iii. 607. 7 Allen 29. 
 Dickinson v. Eockingham, N. S. xii. 731. 45 
 
 Verm. 99. 
 Dickson et al. v. Montgomery ei al, 0. S. i. 377, 
 
 378. 1 Swan 348. 
 Dickson et al. v. Eawsons et al., 0. S. v. 126. 5 
 
 Ohio St. 218. 
 Diefendorf t). Oliver cial., N. S. xi. 395. 8 Kans. 
 
 365. 
 Dietrich v. Franz. N. S. x. 64. 47 Mo. 86. 
 Dikeman v. Norris (Norrie), N. S. viil. 702. 36 
 
 Cal 94 
 Dill V, O'FerreU, N. S. xiv. 61. 45 Ind. 268. 
 
1046 
 
 TABLE OF ABSTEAOT CASES. 
 
 Dillon V. Dougherty, O. S. ii. 188. 2 Grant 99. 
 Dimes Sav. Inst. v. AUentown Bank, N. B. x. 
 
 632. 65 Penna. St. 116. 
 Dinsmore v. Hanson, N. S. ix. 508. 48 N. H. 
 
 413. 
 Dinsmoie v. Webber, N. S. xi. 633. 59 Me. 103. 
 Dipple V. Corles, O. S. vi. 63. 11 Hare 183. 
 Directors of Poor of Schy'l Co. v. Sch. Directors 
 
 of N. M. Township, N. S. ii. 448. 42 Penna. 
 
 St. 21. 
 Ditmars v. Scott, N. S. iv. 442. 47 Penna. St. 
 
 335. 
 Divers Eecelvers v. Phelps, N. S. i. 238. 34 
 
 Barb. 224. 
 Divinney (Dinninny) v. Fay, N. S. ii. 560. 38 
 
 Barb. 18. 
 Dixcy's Executors v. Laning, N. S. v. 127. 49 
 
 Penna. St. 143. 
 Dixen v. Dixen (Dixon v. Dixon), N. S. xii. 
 
 465. 8 C. E. Green 316. 
 Dixon V. Buck, N. S. iv. 122. 42 Barb. 17. 
 Dixon V. Mayor Jersey City, N. S. xiii. 390. 8 
 
 Vroom 39. 
 Doane v. Glenn, N. S. xiv. 462. 21 Wall. 33. 
 Dobbins v. Porter, N. S. vili. 309. 38 Geo. 167. 
 Dock Company v. Leavitt, N. S. vii. 637. 50 
 
 Barb. 135. 
 Dod V. Fourth Nat. Bank of N. Y., N. S. x. 600. 
 
 59 Barb 265 
 Dodd V. Farlo'w, N. R. vi. 127. 11 Allen 426. 
 Dodge (Bodge) v. Hull, N. S. xi. 590. 59 Me. 
 
 225. 
 Dodge v. McClintook, N. 8. vili. 62. 47 N. H. 
 
 383. 
 Dodson's Appeal, 0. S. iv. 440. 25 Penna. St. 
 
 232 
 Doe V. Stewart, O. S. iv. 766. 5 Ohio St. 257. 
 Dolan V. Pagan, N. S. xii. 118. 63 Barb. 73. 
 Dolan r. Thomas, N. S. vi. 606. 12 Allen 421. 
 Dolcher v. Fry, N. S. ii. 125. 37 Barb. 152. 
 Dole t'. Johnson, N. S. 1. ."iOS. 3 Allen 384. 
 Dole V. Johnson, N. S. xiil. 67. 60 N. H. 462. 
 Dole V. N. E. M. F. Ins. Co., N. S. iii. 315. 6 
 
 Allen 373. 
 Dominick v. Bowdoin, N. S, xi. 334. 44 Geo. 
 
 357 
 Donald (McDonald) v. Gronefield, N. S. ix. 321. 
 
 45 Mo. 28. 
 Donaldson v. Bank of Danville, 0. S. i. 249. 20 
 
 Penna. St. 245. 
 Donavan v, Donavan, N. S. v. 187. 9 Allen 
 
 140. 
 Donkle v. Kohn, N. S. xi. 333. 44 Geo. 266. 
 Donnally v. Ryan, N. S. ii. 313. 41 Penna. St. 
 
 306. 
 Doody V. Pierce. N. S. iv. 766. 9 Allen 141. 
 Doolittle V. Bryan. O. S. 1. 377. 14 Howard 563. 
 Dorgan v. City of Boston, N. S. vi. 439. 12 AUen 
 
 223. 
 Dorman v. Kane, N. S. ii. 444. 5 Allen 38. 
 Dorsey v, Thompson, N. S. xii. 732. 37 Md. 25. 
 Dorsheimer v. Korback, N. S. xi. 773. 8 C. E. 
 
 Green 33. 
 Doty D. Miller, N. S. v. 121. 43 Barb. 529. 
 Doughertv v. West'n Bank of Kome, 0. S. ii. 
 
 379. 13 Geo. 287. 
 Dow V. Epping, N. S. vili. 445. 48 N. H, 75. 
 Dow V. Sanborn, N. S. i. 506. 3 Allen 181. 
 Dow V. Worthen, N. S. v. 248, 251. 37 Verm. 
 
 108. 
 Downer v. South Royalton Bank, N. S. vi. 448. 
 
 39 Verm. 25. 
 Downey v. Forrester, N. S. xl. 534. 35 Md. 117. 
 Downham v. Alexandria, N. S. ix. 582. 9 Wall. 
 
 6.";i. 
 Dnyle )'. Coburn, N. S. iii. 120. 6 Allen 71. 
 Dnyle v. Donnelly. N. S. ix. 192. 66 Me. 26. 
 Drake v. Town of Sharon, N. S. vii. 571. 40 
 
 Verm. 35. 
 Draper v, Chprter Oak Fire Ins. Co., N. S. i. 
 
 316. 2 Allen 669. 
 Draper v. Hitt. N. .?. xi. 49. 43 Verm. 439. 
 Draper v, Mass. Steam Heating Co., N. S. ii. 
 
 C98. .T Allen 338. 
 Dreery (Deery) v, Cray, N. S. x. 62, 60. 10 Wall. 
 
 Drennen v. House, N. S. ii. 187. 41 Penna. St. 
 
 30. 
 Dresher v. Allentowu Water Co., N. S. vi. 638.. 
 
 52 Penna. St. 225. 
 Dresser v. Norwood Exch. Ch., N. S. iv. 307. 10 
 
 Jur. N. S. 851. 
 Drew 1'. Peckwell, O. S. iii. 444. 1 E. D. Smith 
 
 408. 
 Drew V. Potter. N. S. vi. 571. 39 Verm. 189. 
 Drew V. Sixth Ave. R. R. Co., N. S. iii. 499. 12 
 
 B. P. Smith (N. Y.) 49. 
 
 Drexel i). Miller, N. S. v. 255. 49 Penna. St. 
 
 249. 
 Drexel v. Eaimond, O. S. ii. 445. 23 Penna. St. 
 
 21. 
 Driver v. West'n U. E. R. Co., N. S. xii. 463. 32 
 
 Wis. 669. 
 Drury v. Cross, N. S. viii. 248. 7 Wall. 299. 
 Dublin & W. R. W. Co. v. Black, O. S. i. 308. 29 
 
 L. T. Exc. 70. 
 Dubois V. Hull. N. S. iv. 611. 43 Barb. 26. 
 Ducher (Dutcher) v. Justices Inierior Court, 
 
 N. S. viii. 320. 38 Geo. 214. 
 Dudley v. Wardner's Exr., N. S. viii. 512. 41 
 
 Verm. 59. 
 Duff, ex. ret v. Booth, Mayor of Brooklvn, N. 
 
 S. vii. 315. 49 Barb. 31. 
 Duffy f . Duncan, N. S. vi. 315. 8 Tiffany (N.Y.) 
 
 187. 
 Duke V. Fulmer and Others, O. S. i. 671. 5 
 
 Rich. Eq. Cas. 121. 
 Duling V. Johnson, N. S. x. 192. 32 Ind. 155. 
 Dullard's Adm'r v. Hardy, N. S. x. 742. 47 Mo. 
 
 403. 
 Dumain v. Gwynne, N. S. v. 506. 10 Allen 270. 
 Duncan v. Stone. N. S. xii. 792. 4o Verm. 118. 
 Duncan v. Tindal, 0. S. ii. 61. 22 L. J. (N. S.) 
 
 C. B. 137. 
 
 Dungan v. Miller, N. S. xiv. 128. 8 Vroom 
 
 182. 
 Dunkley v. Farris, O. S. ii. 63. 11 .0. ,B. 4.J7. 
 Dunlap V. County of Gallatin, O. S. iii. 63S. 15 
 
 111. 7. 
 Dunlap V. Gleason, N. S. vii. 186. 16 Mich. 
 
 158. 
 Dunn V. Record, N. S. xiv. 391. 63 Ms. 17. 
 Dunn V. Wright, N. S. viii. 59. 51 Barb. 244. 
 Dunning's Appeal, N. S. iii. 312. 44 Penna. St. 
 
 150. 
 Dupasseur v. Kochereau, N. S. xiv. 627. 21 
 
 Wall. 130. 
 Dupuy V. Seymour, N. S. xii. 595. 64 Barb. 
 
 156. 
 Durando v. Durando, N. S. i.£9. 9 E. P. Smith 
 
 (N. Y.) 331. 
 Durant v. Essex Co., N. S. iv. 118. 8 Allen 103. 
 Duress V. Homeffer. N. S. Iii. 609. 15 Wis. 195. 
 Durfee v. Old Col. & Fall River R. R. Co., N. S. 
 
 ii. 700. 5 Allen 230. 
 Durgin v. City of Lowell, N. S. i. 505. 3 Allen 
 
 398. 
 Durgin v. Mnnson, N. S. v. 61 . 9 Allen 396. 
 Durgin v. Town of Danville, N. S. xiv. 756. 47 
 
 Verm. 95. 
 Durham v. Williams, N. S. i. 670. 36 Barb. 136. 
 Durning v. Burkhardt, N. S. xiii. 652. 34 Wis. 
 
 .58.1. 
 DiLStan V, McAndrew, N. S. x. 800. 5 Hand N. 
 
 Y. 73. 
 Duston (Denton) v. Leddell, N. S. xii. 321, 323. 
 
 8 C. E. Green 64. 
 Dutton V. Pailaret, N. S. vi. 637. 52 Penna. St. 
 
 109. 
 Dutton V. Eice, N. S. xiv. 126. 53 N. H. 496. 
 Dwight V. St. John, N. S. ill. 59. 11 E. P. Smith 
 
 (N. Y.) 203. 
 Dwinel r. Brown, N. S. vii. 441. 54 Me. 468. 
 Dyer v. Fredericks, N. S. xiv. 4."i8. 68 Me. 173. 
 Dyer v. Graves, N. S. iv. 383. 37 Verm. 369. 
 Dyer r. Last. N. S. ix. 714. 51 111. 179, 
 Dyer v. Libby, N. S. xiii. 127. 61 Me. 45. 
 Dyer i'. Pist-ataqua F. & M. Ins. Co., N. S. vi. 
 
 250. 53 Me. 118, 
 Dyer v. Walker, N. S. 1. 567. 40 Penna. St. 157, 
 Dyer r. Walker. N. S. vii. 44."i. 54 Me. 18. 
 Dyuen v. Leach, 0. S. v. 745. C. of Exch. 
 
TABLE OF ABSTRACT CASES. 
 
 10-17 
 
 Eadie !'. SUmmon, K. S. iii. 568. 12 E P Smith 
 
 (N. Y.) 9. 
 Eads r, Murphv, N. S. xiv. 400. Ala. 
 Eagle, The, X. S, ix. 55. 8 Wall. 15. 
 Eaniesc. Godtrey, N. S. iv. HC. i Wall 7S 
 Earle v. Xew Brunswick, N. S. xiv. 70" 9 
 
 Vroom 47. 
 Early v. Wilkinson & Hunt, O. S. iii. 51. 9 
 
 Grat. 68. 
 Earp V. Cummins, N. S. vii. 312. 54 Penna. St. 
 
 894. 
 East Penn. E. E. Co. v. Hottenstine, N. S. iv. 
 
 184. 47 Penna. St. 28. 
 East St. Louis v. St. John, N. S. ix. 5fi. 47 111. 463. 
 Easterbrook v. Erie R. E. Co., X. S. viii. 188. 51 
 
 Barb. 94. 
 Easterbrook v. Union M. Life Ins. Co., N. S. 
 
 vii. 445. 54 Me. 224. 
 Eastern Archipelago v. Queen, O. S. iii. 123. 18 
 
 Jur. 481. 
 Eastern Counties Eail Co. v. Dorling, O. S. vii. 
 
 704. C. P. C. L. 202. 
 East Hartford v. Hunn, N. S. i. 245. 29 Conn. 
 
 500. 
 East Kingston v. Towle, N. S. viii. 569. 48 N. 
 
 H. 57. 
 Eastman v. Clark, N. S. siv. 125. 63 N. H. 276. 
 Eastman c. Crosby, N. S. iv. 184. 8 Allen 206. 
 Eastman i: Hobbs, O. S. iv. 190. 26 Ala. 741. 
 Eastman i'. Plumer. N. S. vi. 447. 46 N. H. 464. 
 Eastman v. Sanborn, N. S. i. 568. 3 Allen 594. 
 Easton v. Clark, N. S. vi. 313. 8 Tiflany (N.Y.) 
 
 225. 
 Eastwood V. Leaver, N. S. iii. 693. 12 W. E. 
 
 19.5— L. J. 
 Eatou V. Alger, X. S. x. 70. 57 Barb. 179. 
 Eaton i: Boston, C. & M. E. E. Co., N. S. xl. 
 
 721. 51 X. H. 504. 
 Eaton V. Cook, N. S. xiv. 327. 10 C. E. Green 55. 
 Eaton V. Eaton, N. S. iii. .509. 15 Wis. 259. 
 Eaton i'. Eaton, N. S. xiv. 121. 8 Vroom 108. 
 Eaton V. Farmer, N. S. vi. 2.56. 46 N. H. 200. 
 Eaton V. Lyman, N. S. xii. 189. 30 Wis. 41. 
 Eaton V. Winnie, N. S. x. 640. 20 Mich. 166. 
 Ebbert's Appeal, N. S. xii. 405. 70 Penna. St. 79. 
 Eddv V. Davidson, N. S. ix. 640. 42 Verm. 56. 
 Eddy V. Orav. N. S. ii. 263. 4 Allen 435. 
 Edge V. Bumford, N. S. iii. 441. 31 Beav. 247. 
 
 9 Jur. N. S. 8. 
 Edgerton v. Commonwealth, N. S. Iii. 62. 5 
 
 AUen 514. 
 Erlgerton v. Huff. N. S. vi. 716, 720. 26 Ind. 35. 
 Edgerton v. The N. Y. and Harlem E. E. Co., 
 
 N. S. i. 377. 35 Barb. 193, 389. 
 Edmonds v. Schafifer, N. S. vii. 510. 49 Barb. 
 
 291. 
 Edmonson v. Bloomshire, N. S. viii. 255. 7 
 
 Wall. 306. 
 Edmonson v. Nichol, O. S. ii. 121. 22 Penna. 
 
 St. 74. 
 Edward's Appeal, N. S. x. 746. 66 Penna. St. 89. 
 Edwards v. Ela, N. S. ii. 608. 6 Allen 87. 
 Edward.s v. Elliott etal.,'S. S. xiv. 518. 21 Wall. 
 
 532 
 Edwards v. Gibbs, N. S. vi. 504, 509. 39 Miss. 
 
 166. 
 Edwards v. Marcv, N. S. i. 248. 2 Allen 486. 
 Edwards, In re, N. S. xiii. 590. 29 L. T. N. S. 
 
 712. S. C. L. E. 9 Ch. App. 97. 
 Eells V. State of Illinois, O. S. i. 186. 14 Howard 
 
 13. 
 Egsleston v. The N. Y. & Harlem E. E. Co., N. 
 
 S. i. .312. 35 Barb. 162. 
 Ehle V. Brown, N. S. xii. 121. 31 Wis. 405. 
 Ehle V. The Chittenango Bank, N. S. ii. 183. 10 
 
 E. P. Smith (N. Y.) 548. 
 Einstein v. Guy (Gay), N. S. ix. 328. 45 Mo. G2. 
 Ela V. Edwards, N. S. vii. 187. 13 Allen 48. 
 Ela 1A Knox, N. S. V. 699. 46 N. H. 16. 
 El bin r. Wilson, N. S. x. 407. 38 Md. 135. 
 Elder v. Eobinson, 0. S. i. 123. 19 Penna. St. 
 
 364. 
 Eldred v. Bank. N. S. xiii. 330, 17 Wall. 545. 
 Eldridge v. Bliss, N. S. x. 472, 478. 20 Mich. 269. 
 Eliot V. Eliot, N. S. v. 575. 10 Allen 3.57. 
 Eliot V. Lawton, N. S, iii. 566. 7 Allen 274. 
 
 Elkins I'. Keiiyon, X. S. xiii, 783. 34 Wis. 93. 
 ElkridKC Railroad Co. i'. Baltimore Ins. Co., N. 
 
 S. X. 130. \i2 Md. 37. 
 Ellingwood r. Bragg, N. S. xiii. 57. 62 N. H. 
 
 488. 
 Elliott 11. City of Philadelphia, N. S. xiv. 253. 
 
 75 Penna. St. Ml. 
 Elliott D. Pray. N. S. v. 572. 10 Allen 378. 
 Elliott V. Lycoming Ins. Co., N. S. x. 745. 66 
 
 Penna. St. 22. 
 Elliott V. The C. C. & C. E.E. Co., 0. S. iv. 693. 
 
 4 Ohio St. 474. 
 Elliott's Executors' Appeal, N. S. v. 877. 60 
 
 Penna St. 75. 
 Ellis V. Amer. Tel. Co., N. S. vii. 127. 13 Allen 
 
 226. 
 Ellis r. Goodnow. N. S. vii. 768. 40 Verm. 237. 
 Ellis 11. Hopper, 0. S. vii. 504. 28 L. J. Ex. 1. 
 Ellis V. Pulsifer, N. S. ii. 182. 4 Allen 165, 
 Ellis 11. Spurgin, N. S. x. 200. 1 Heiskell 74. 
 Elli.s D. Wire, N. S. x. 665. 33 Ind. 127. 
 Ellison V. Brigham, N. S. v. 638. 38 Verm. 04. 
 Ellison V. Wilson, N. S. iv. 67,3. 36 Verm. 60. 
 Ellsworth V. Tartt, 0. S. iv, 189. 26 Ala. 733. 
 Elston V. Robertson. N. S. ii. 700. 39 Barb. 9. 
 Ely V. O'Leary, O. S. v. 311. 2 E. D. Smith, 3.55. 
 Emerick v. Coakley, N. S. xi. 461. 35 Md. 188. 
 Emerson v. Booth. N. S. vii. 766. 51 Barb. 40. 
 Emerson v. Lowell Gaslight Co., N. S. iii. 252. 
 
 6 Allen 146. 
 Emeraon ii. Moonev, N. S. ix. 713. 60 N. H. 315. 
 Emery v. Hobson, N. S. xiv. 392, 399. 63 Me. 
 
 32. 33. 
 Emery v. Prescott, N. S. vii. 445. 54 Me. 389. 
 Emery v. Eichardson, N. S. xiii. 127. 01 Me. 
 
 99. 
 Emerv n. Smith, N. S. v. 699. 46 N. H. 151. 
 Emes'& Gibers ii. Brown. O. S. i. 634. 
 Emily Souder, N. S. xiii. 335. 17 Wall. 666. 
 Emlen v. Lehigh Co., N. S. iv. 253. 47 Penna. 
 
 St. 76. 
 Enders v. People. N. S. x. 473. 20 Mich. 233. 
 Ensminger v. The People, N. S. ix. 128. 47 HI. 
 
 384. 
 Erickson v. Nesmith, N. S. vi. 377. 46 N. H. 371. 
 Erie Eailway Co. v. Del., Laca. & W. E. E. Co., 
 
 N. S. X. 360. 6 C. E. Green 283. 
 Erie E. R. Co. v. Pennsylvania, N. S. xiv. 627. 
 
 21 Wall. 492. 
 Ernst. V. Hudson E. E. E. Co., N. S. vi. 253. 8 
 
 Tiffany (N. Y.) 9. 
 Ernst V. Reed, N. S, vii. 573. 49 Barb. 867. 
 Eshleman v. Lewis, N. S. v. 247. 49 Penna. St. 
 
 410. 
 Esmon v. The State, O. S. i. 380. 1 Swan 14. 
 Esser v. Linderman, N. S. xii. 728. 71 Penna. 
 
 St. 76. 
 Estate of Nerac, N. S. viii. 606. 35 Cal. 392. 
 Estate of Wood, N. S. viii. 704. 36 Cal. 75. 
 Esty V. Aldrich, N. S. vi. 248. 46 N. H. 127. 
 Esty 1'. Graham, N. S. v. 703. 46 N. H. 169. 
 Etheridge Adm'rs v. Ladd, N. S. v. 249. 44 
 
 Barb. 69. 
 Evans v. Columbian Ins. Co., N. S. x. 798. 5 
 
 Hand (N. Y.) 146. 
 Evans v. Erie County, N. S. x. 799. 66 Penna. 
 
 St. 222. 
 Evans ii. Evans, N. S. xii. 191. S C. E. Green 
 
 71, 180. 
 Evans v. Fosa, N. S. xi. 270, 272. 49 N. H. 490. 
 Evans v. People, N. S. iii. 184. 12 Mich. 27. 
 Evahs V. Saunders, 0. S. iii. 609. 19 Jur. 265. 
 Evans v. Sprague, N. S. xii. 125. 30 Wis. 303. 
 Evans v. The Phil. Club, N. S. v. 443. 60 Penna. 
 
 St. 107. 
 Evans n. Wain, N. S. xii. 728. 71 Penna. St. 69. 
 Evansville & Crawfordsville E. E. Co. v. Baum, 
 
 N. S. vi. 717. 26 Ind. 70. 
 Evansville ii. Evans, N. S. xii. 633. 37 Ind. 229. 
 Eveleth 11. Blossom, N. S. vii. 447. ,54 Me. 447. 
 Everett, A dm. of Tough v. Neff, N. S. viii. 261. 
 
 28 Md. 176. 
 Everly v. Rice, O. S. i. 442. 20 Penna. St. 297. 
 Ewingir. St. Louis, N. S. vii. 121. ."i Wall. 413. 
 Excelsior Ins. Co., Matter of, N, S. ii. 033. 38 
 Barb. 297. 
 
1048 
 
 TABLE OF ABSTEAOT CASES; 
 
 Exchange Banls: v. Monteath, N. S. iii. 700. 12 
 
 E. P. Smith (N. Y.) 505. 
 Executor v. Goodwin, 0. S. iii. 63. 9 Grat. 
 
 503. 
 Exra. of Clark v. Canfield, N. S. Yi. 573. 2 
 
 JMcCfl-rtfir 119 
 Ex parte Voltz.N. S. xii. 660. 37 Ind. 175. 
 Express Co. v. Caldwell, N. B. xiv. 621. 21 
 
 Wall. 264. 
 Express Co. v. Haggard, N. S. vi. 118, 122, 124. 
 
 37 111. 465. 
 Express Co. v. Moon, N. S. vi. 604. 39 Miss. 822. 
 Express Co. v. Schlesslnger, N. S. xiv. 196. 75 
 
 Penna. St. 246. 
 Express Co. v. Womack, N. S. x. 194. 1 Heis- 
 
 kell, 256. 
 Eyre v. Eyre, N. S. viii. 119, 121. 4 C, E. Green 
 
 42, 102. 
 
 Eabbri v. Mercantile M. Ins. Co., N. S. xii. 403. 
 
 64 Barb. 86. 
 Facey v. Puller, N. S. v. 252. 13 Mich. 527. 
 Faddis v. Woolomes, N. S. xU. 123. 10 Kans. 
 
 66. 
 Fairbanks v. Kerr, N. S. xii. 400. 70 Penna. 
 
 St. 86. 
 Fairclaugh v. Paira, O. S. iii. 123. 23 L. J. E. 
 
 Ch. 215. 
 Fairfield Co. v. Chaney, 0. S. iv. 631. 5 Ohio 
 
 St. 67. ■ 
 Fairhurst v. Liverpool Loan Ass'n, O. S. ill. 
 
 125. 4Exch.422. 
 Fallass, Adm'r i;. Pierce, N. S. xii. 121. 30 Wis. 
 
 443. 
 Fall Creek Coal Co. v. Smith, N. S. xii. 735. 71 
 
 Penna. St. 230. 
 Fall R. Iron Works v. Old Col. & F. River E. 
 
 E., N. S. ii. 699. 6 Allen 221. 
 Falls V. Conway M. F. Ins. Co., N. S. iii. 506. 7 
 
 Allen 46. 
 Falvey v. N. Tr. Co., N. S. iii. 379. 15 Wis. 129. 
 Fame v. Martin, 0. S. i. 184. 3 Selden (N. Y.) 
 
 210. 
 Farie's Appeal. 0. S. ii. 510. 23 Penna. St. 29. 
 Farley v. Banks, O. S. iv. 122. 24 L. I. Q. B. 
 
 244. 
 Farmers' Bank v. Garten, N. S. iii. 634. 34 Mo. 
 
 119. 
 Farmers' Bank of Mary v. Clarke, N. B. viii. 
 
 250. 28 Md. 145. 
 Farmers' Bank ot Md, v. Thomas, N. S. xii. 786. 
 
 37 Md. 246. 
 Farmers' Bank of Vir. v. Brooke, N. S. xiv. 395. 
 
 40 Md. 249. 
 Farmers' Loan & Trust Co. v. The Harmony 
 
 Fire & Marine I. Co., N. S. vii. 763. 51 Barb. 
 
 33. 
 Farmers & Mechanics' Bank Appeal, N. 8. iv. 
 
 637. 48 Penna. St. 67. 
 Farmers' & M. N. Bank v. Gregory, N. S. vii. 
 
 122. 49 Barb. 155. 
 Farmers & Mechanics' Bank v. Wadsworth, N. 
 
 S. ii. 121. 10 B. P. Smith (N. Y.) 647. 
 Farmers' Railroad Co. v. Reno Railway Co., N. 
 
 S. vii. 121. 53 Penna. St. 224. 
 Farraington v. Stanley, N. S. xii. 669. 60 Me. 
 
 472. 
 Farnum v. Burnett, N. 3. x. 203. 6 C. E. Green 
 
 87. 
 Farnum v. Eastwlck, O. S. ii. 572. 
 Farrell v. Hildreth. N. S. ii. 507. 38 Barb: 178. 
 Farrell v. TayloT. N. S. iii. 249. 12 Mich. 113. 
 Fassett i). Smith, N. S. i. 180. 9 E. P. Smith (N. 
 
 Y.) 252. 
 Fassitti;. Mlddleton, N. S. iv. 315. 47 Penna. 
 
 St. 214. 
 Faulkner v. Erie Railroad Co., N. S. vii. 509, 
 
 510. 49 Barb. 324. 
 Faust V. Haas, N. S. xiii. 456. 73 Penna. St. 
 
 295. 
 Faxton v. Faxton et al. N. S. xiii. 463. 28 Mich. 
 
 159. 
 Fay V. Parker, N. S. xiv. 121. 53 N. H. 342. 
 Fearing v. Kimball, N. S. ii. 64. 4 Allen 125. 
 Fehley v. Barr, N. S. x. 795. 66 Penna. St. 196. 
 
 Feild V. Farrington. N. S. x. 61. 10 Wall. 141. ■ 
 FeLsel (Feizel) v. Munzenmeer (Muiizenmeyer) 
 
 et al., N. S. xi.-776. 10 Kans. 592. 
 Felters (Fettersl v. Humphreys, N. S. vii. 698. 
 
 3 C. E. Green 260. 
 Fence Co. v. Sargent, N. S. iv. 183. 8 Allen 189. 
 Fenderson v. Owen. N. S. vii. 443. 54 Me.-3V'2. 
 Fenner r. Buiialo & State Line K. E. Co., N. S. 
 
 vi. 63. 46 Barb. 103. 
 Fenner v. Buffalo State Line E. Co., N. S. x. 
 
 795. 6 Hand (N. Y.) 606. 
 Ferguson v. Staver, N. S. i.691. 40 Penna. St. 
 
 213. 
 Ferguson et al. v. Tutt et al., N. S. xi. 270. 8 
 
 Kans. 370. 
 Ferran v. Lowndes (Hosford), N. S. ix. 190. 64 
 
 Barb. 200. 
 Ferree v. TJiompson, N. S. vi. 040. 62 Penna. 
 
 St. 353. 
 Ferrin v. Myrick. N. S. viii. 636. 63 Barb. 76. 
 Ferris, In re. Application for a WHt of Error, 
 
 N. S. vi. 378. 8 Tiflany (N. Y.) 262. 
 Ferris v. Bramble, O. S. iv. 694. 6 Ohio St. 109. 
 Jerris v. People, N. S. vi. 773. 48 Bairb. 17. 
 Fessenden v. Willev, N. S. i. 56. 2 Allen 67. 
 Feversham (Ld.) v. Emerson, O. S. Iv. 127. 24 
 
 L. J. Exch. 254. 
 Fibel V. Livingston, Brest., &c., N. S. xii. 604. 
 
 64 Barb. 179. 
 Fiedler v. Mead, N. S. ii. 249. 10 E. P. Smith 
 
 (N. Y.) 114. 
 Field V. Avery, N. S. iii. 376. 15 Wis. 18. 
 Field V. Brackett, N. S. ix. 120. 66 Me. 121. 
 Fiery v. Emmert, N. S. xii. 254. 36 Md. 464. 
 Fifleld v. Close, N. S. vi. 639. 15 Mich. 505. 
 Fifleld V. Ins. Co. of Penn., N. S. iv. 285. 47 
 
 Penna. St. 166. 
 Fifield V. Maine Cen. Eailroad Co., N. S. xiv. 
 
 200. 62 Me. 77. 
 Figuet V. Allison, N. S. iii. 766. 12 Mich. 328. 
 Filbert v. Hoff, N. S. ii. 502. 42 Penna. St. 97. 
 Filkins v. Whvland, N. S. ii. 317. 10 E. P. 
 
 Smith (N. Y.) 338. 
 Fink V. Garman, N. S. 1. 499. 40 Penna. St. 95. 
 Finn V. Clark, N. S. v. 674. 10 Allen 479. 
 Finnegan v. Caraher, N. S. xi. 46U. 61 Barb. 
 
 252. 
 Finneran v. Leonard. N. S. iii. 606. 7 Allen 54. 
 Finney v. Cist, N. S. iv. 120. 84 Mo. 303. 
 Fire Ins. Co. of Baltimore v. Tardy, N. S. xiii. 
 
 393. 
 Firmstone v. Mack, N. S. v. 253. 49 Penna. St. 
 
 387. 
 First National Bank v. Grindstaff, N. S. xiv. 
 
 61. 45 Ind. 158. 
 First National Bank v. Indianapolis, &c., Co., 
 
 N. S. xiv. 57. 45 Ind. 5. 
 First N. B, of Plymoutli v. Price, N. S. x. 472. 
 
 33 Md. 487. 
 First N. Bank v. Portsmouth, N. S. vi. 314. 
 First Presb. Soo. v. First Presby. Soc, N. S. 
 
 xiv. 645. 26 Ohio St. 128. 
 Firth V. Denny, N. S. i. 245. 2 AUen 468. 
 Fish V. Davis, N. S. xi. 664. 62 Barb. 122. 
 Fish et al. v. Davis. N. S, xi. 719. 62 Barb. 122. 
 Fish V. Dodge, N. S. ii. 607. 38 Barb. lo3. 
 Fishburn v. Jones, N. S. xii. 535. 37 Ind. 119. 
 Fishell V. Winans, N. S. ii. 630. 38 Barb. 228. 
 Fisher v. Clark, N. S. iii. 638. 41 Barb. 329. 
 Fisher v. Hubbell, N. S. xii. 726, 733. 65 Barb. 
 
 74. 
 Fisher v. Krutz & Campbell, N. S. xi. 773. 9 
 
 Kans. 601. 
 Fisher v. Marvin, N. S. vi. 507. 47 Barb. 159. 
 Fisher v. Ronalds, O. S. i. 310. 20 L. T. (C. B.) 
 
 100. 
 Fisher v. The People, N. S. x. 840. 20 Mich. 
 
 135. 
 Fisk V. Brunette, N. S. xii. 194. 80 Wis. 102. 
 Fitchburg Bank v. Greenwood, N. S, i. 318. 2 
 
 Allen 434. 
 Fitchburg R. E. Co. v. Prescott, N. S. vii. 255. 
 
 47 N. H, 62. 
 Fitts V. Fitts, N. S. vi. 248. 46 N. H. 184. 
 Fitzgerald v. The People, N. B. vii, 378, 49 
 
 Barb, 122, 
 
TABLE OF ABSTRACT CASES. 
 
 1049 
 
 Fitzpatrick v. Gebhart, N. S. x. 541, 668. 7 
 
 Kans. 35. 
 Fitzpatriok's Appeal, N. S. v. lS2. 49 Penna. 
 
 St. 241. 
 Flack ti. Charon (Charron), N. S. viii. 700. 29 
 
 Md. 311. 
 Flags, Adm'r v. Eames, N. S. vii. 573. 40 Verm. 
 
 16. 
 Flaherty v. Thomas, N. S. yi. 507. 12 Allen 
 
 428. 
 Flanagan v. City of Phila., N. S. ii. 504. 42 
 
 Penna. St. 219. 
 Flanagan v. Post, N. S. xili. 62. 45 Verm. 246. 
 Flanders v. Colebrook, N. S. xii. 58. 51 N. H. 
 
 300. 
 Flanders v. Fay, N. S. vli. 697. 40 Verm. 316. 
 Flanders v. Stewartstown, N. S. viii. 61. 47 N. 
 
 H. 549. 
 Flanigan v. Lampman, N. S. iii. 183. 12 Mich. 
 
 58. 
 Fleece. The. O. S. i. 54. 3 Rob. Ad. Cas. 278. 
 Fleming v. Clark, N. S. vi. 438. 12 Allen 191. 
 Fletcher v. Dickinson. N. S. iii. 505. 7 Allen 23. 
 Fletcher v. Fletcher, O. S. vii. 567. 28 L. J. Q. 
 
 B. 131. 
 Fletcher v. Pillsbury and Trustees, N. S. iv. 56. 
 
 35 Verm. 16. 
 Fletcher v. Tayleur, O. S. iv. 318. 17 C, B. 21, 
 Fletcher v. Webster, N. S. iii. 62. 5 Allen 666. 
 Flint V. Flint, N. S. iii. 120. 6 Allen 34. 
 Florence, The. O. S. i. 54. 16 Jur. 572. 
 Florentine v. Burton (Barton), N. S. iv. 764. 2 
 
 Wall. 210. 
 Florey's Exec'r v. Florey, O. S. iii. 55. 24 Ala. 
 
 211. 
 Flvnn V. Bailey, N. S. vii. 634, 638. 50 Barb. 75. 
 Flynn v. Coffee, N. S. vi. 318. 12 Allen 133. 
 Fogg V. Griffin, N. S. i. 56. 2 Allen 1. 
 Foley V. Crow, N. S. xii. 730. 37 Md. 51. 
 Foley V. Wyeth. N. S. i. 12.i. 2 Allen 131. 
 Foley V. Wyeth, Exec'x, N. S. i. 124. 2 Allen 
 
 135. 
 Follett, Adm'r v. Buyer, O. S. iv. 630. 4 Ohio 
 
 St. 586. 
 Folsom V. Skofield. N. S. vi. 565. 53 Me. 171. 
 Fonda v. Sage, N. S. vi. 59, 64. 46 Barb. 109. 
 Fosdick V. Fosdick, N. S. ill. 122. 6 Alien 41. 
 Foss V. Edwards, N. S. xiii. 124. 47 Me. 145. 
 Foss V. Foss, N. S. vi. 380. 12 Allen 26. 
 Foot V. BenUey, N. S. x. 797. 5 Hand (N. Y.) 
 
 166. 
 Foote V. Blanchard, N. S. iii. 250. 6 Allen 221. 
 Foote V. Foote, N. S. x. 352. 58 Barb. 258. 
 Foote V. Webb, N. S. x. 471, 478. 59 Barb. 38. 
 Forbes v. Forbes, O. S. iii. 256. 18 Jur. 642. 
 Forbe.s v. Halsey, N. S. Iii. 501. 12 E. P. Smijth 
 
 (N. Y.) 53. 
 Ford V. Crocker, N. S. vi. 719. 48 Barb. 142. 
 Ford V. Parker, O. S. iv. 631. 4 Ohio St. -576. 
 Ford V. Williams, N. S. ii. 249. 10 E. P. Smith 
 
 (N. Y.) 359. 
 Foreman v. Scott (Carter), N. S. xii. 52, 60. 9 
 
 Kans. 674. 
 Forist V. Androscoggin, N. S. xiii. 50. 52 N. H. 
 
 477. 
 Forrester v. Torrence, N. S. x. 352. 64 Penna. 
 
 St 29 
 Forster u. Davies, N. S. i. 512. 31 L. J. Ch. 276. 
 Forsyth v. Dixon, O. S. ii. 122. 1 Grant 26. 
 Fort V. McCully, N. S. x. 599. 59 Barb. 87. 
 Fortin v. Pump Co.. N. S. ix. 260. 48 111. 451. 
 Forwards. Adm'r v. Thamer, O. S. iii. 53. 9 
 
 Grat. 537. 
 Foster et al. v. Conger, N. S. xi. 396. 61 Barb. 145. 
 Foster v. Drew, N. S. vi. 446. 39 Verm. 51. 
 Foster v. Thomas and Others, O. S. I. 565. 21 
 
 Conn. 285. 
 Foulke V. Zimmerman, N. S. xii. 120. 14 Wall. 
 
 113. 
 Fowler v. Clearwater, N. S. i. 311. 35 Barb. 35. 
 
 143. 
 Fowler V. Colt, N. S. xlv. 323. 10 C. E. Green 
 
 202. 
 Fox V. Conway Fire Ins, Co., N, S. vi. 254. 53 
 
 Me. 107. 
 Fox V. Griffith, 0. S. ii. 572. 
 
 Foye V. Southard. N. S. vii. 430. 54 Me. 117. 
 Fraker v. Reeve, N. S. xiv. 708. 36 Wis. 85. 
 Fraley's Appeal, N. S. xiv. 461. 76 Penna. St. 
 
 42. 
 Fralich v. The People, N. S. xii. 659. 65 Barb. 
 
 48. 
 Francis v. Baker, N. S. xiv. 393. 11 R. I. 
 Francisco v. Manhattan Ins. Co., N. S. viii. 698. 
 
 36 Cla. 283. 
 Frank v. Harrington, N. S. i. 768. 36 Barb. 
 
 415, 
 Frank i'. Longstreet, S. & Co., N. S. xi. 329. 44 
 
 Geo. 178. 
 Frank v. Maguire, N. S. ii. 602. 42 Penna. St. 77. 
 Frank v. Morris, N. S. xii. 327. 67 III. 138. 
 Frankford Railway Co. i). Philad'a, N. S. viii. 
 
 631. 58 Penna. St. 119. 
 Franklin v. Fisk, N. S. vii. 61. 13 Allen 211. 
 Franklin v. Foster. N. S. x. 410. '20 Mich. 75. 
 Franklin v. Merida, N. S. viii. 606. 35 Cal. 658. 
 Franklin v. National Ins. Co., N. S. viii. 380. 
 
 43 Mo. 491. 
 Franklin v. The State, O. S. v. 722. N. S. 28 
 
 Ala. 9. 
 Fi-anklin Fire Ins. Co. v. Chicago Ice Co., N. 
 
 S. xii. 68. 36Md. 102. 
 Franklin Ins. Co. v. Brock, N. S. viii. 313. 67 
 
 Penna. St. 74. 
 Fraschleris v. Henriques, N. S. i. 632. 36 Barb. 
 
 276. 
 Fray v. Vowles. O. S. viii. 251. 5 Jur. N. S. 1253. 
 
 28 L J B 232 
 Fray v. Vowls] O. S. vii. 703. Q. B. C. L. 232. 
 Frazier v. Barnum, N. S. viii. 248. 4 C. E. Green 
 
 316. 
 Frazier v. Penn. R. R. Co., N. S. i. 60. 38 Penna. 
 
 St. 104. 
 Freaner v. Yingling, N. S. xiii. 199. 37 Ma.491. 
 Freeborn v. Wagner, N. S. vii. 512. 49 Barb. 43. 
 Freeburger's Appeal, N. S. i. 695. 40 Penna. St. 
 
 244. 
 Freeholders of Middlesex v. Thomas, N. S. Ix. 
 
 320. 5 C. E. Green 39. 
 Freeholders of Monmouth Co. v. Red Bank & 
 
 Turnpike Co., N. S. vii. 759. 3 C. E. Green 91. 
 Freelore v. Cole, N. S. iii. 638. 41 Barb. 318. 
 Freeman ti. Anld, N. S. v. 264. 44 Barb. 14. 
 Freeman v. Fulton Fire Ins. Co., N. S. ii. 631. 
 
 38 Barb. 247. 
 Freeman 1). Rawson, 0. S. iv. 693. 6 Ohio St. 1. 
 Freeman v. Schroeder, N. S. v. 190. 43 Barb. 
 
 618. 
 Fremont D. Stone, N. S. iv. 184. 42 Barb. 169. 
 French v. Crosby, N. S. xiii. 257. 61 Me. 602. 
 French v. Griffin, N. S. vii. 703. 3 C. E. Green 
 
 279. 
 French v. Pease, N. S. xii. 124. 10 Kans. 51. 
 French v. Quincy, N. S. i. 383. 3 Allen 9, 
 French v. Snyder, N. S. iii. 313. 30 111. 399. 
 'Frenlenheit v. Edmondson (Freidenheitu. Ed- 
 
 mundsonl, N. S. v. 447. 36 Mo. 226. 
 Frey v. Bovlan, N. S. xi. 774. 8 C. E. Green 90. 
 Freytag v. Boeland, N. S. xii. 193. 8 C. E. Green 
 
 Fric'k V. Barbour, N. S. x. 407. 64 Penna. St. 
 
 120. 
 Friebaugh v. Stone, N. S. v. 441. 36 Mo. 111. 
 Friend et al. v. Hamill, N. S. xi. 58. 34 Md. 
 
 298 
 Fries's v. Rider, N. S. ii. 317. 10 E. P. Smith (N. 
 
 Y ) 367 
 Frink v. Bellis, N. S. x. 671. 33 Ind. 135. 
 Frink V. Pond, N. S. v. 704. 46 N. H 125. 
 Frost V. Belmont. N. S. ni. 374. 6 Allen 162. 
 Frost V. Gage, N. S. i. 667. 3 Allen 660. 
 Frost V. Grand Trunk R. R. Co., N. S. v. 573. 
 
 10 Allen 387. 
 Frost V. Walker, N. S. xii. 670. 60 Me. 468. 
 Frothingham v. Morse, N. S. v. 698. 45 N. H. 
 
 .545 
 Frv D Hamner. N. S. xiii. 4.59. 50 Ala. 62. 
 Fullam J). Welch, N. S. xi. 267. 
 Fuller V. Bowker, N. S. n. 671. U Mich. 204. 
 Fuller V. Miller, N. S. x. 130. 57 Me. 168. 
 Fuller V. Naugatuck R. R. Co., 0. S. t. 568. 21 
 
 Conn, 557. 
 
1050 
 
 TABLE OF ABSTEACT OASES. 
 
 Fuller V. Railroad Co., 0. S. i. 567. 21 Conn. 
 
 657. 
 FuUerton v. Dalton, N. S. x. 343, 345, 414. 58 
 
 Barb. 236. 
 FuUerton v. Sturges, O. S. iv. 690. 4 Ohio St. 
 
 629. 
 Fulton II. City of Davenport, N. S. iv. 444. 17 
 
 Iowa 404. 
 Funk V. Franklinville, N. S. xii. 735. 71 Penua. 
 
 St. 205. 
 Funk V. Smith. N. S. x. 749. 66 Penna. St. 27. 
 Furman v. Nichol, N. S. ix. 57. 8 Wall. 44. 
 FUS.S V. Fuss, N. S. ix. 263. • 24 Wis. 256. 
 
 Gable's Ex's Appeal, N. S. i. 693. 40 Penna. 
 
 St. 431. 
 Gable's Ex's v. Daub, N. S. i. 692. 40 Penna. 
 
 St. il7. 
 Gaff?). Sims, N. S. xiv. 57. 45 Ind. 262. 
 Gaffe* al. v. Theis, N. S. x.'743. 33 Ind. 307. 
 Gaffy (Guffy) v. Commth. O. S. ii. 182. 2 Grant 
 
 66. 
 Gage V. Morse, N. S. vi. 719, 574. 12 Allen HO. 
 Gage V. Tirrell, N. S. v. 191. 9 Allen 299. 
 Gagg V. Vetter, N. S. xiii. 196. 41 Ind. 259. 
 GaUor v. Herrick, N. S. iv, 122. 42 Barb. 79. 
 Gale V. Archer, N. S. iv. 319. 42 Barb. 820. , 
 Gale V. Lisbon, N. S. xii. 597. 52 N. H. 174. 
 Galena & Chicago R. R. Co. v. Yarwood, O. 8. 
 
 iii..637. 15111.468. 
 Gallagher v. Piper, N. S. iv. 316. 16 C. B. N. S. 
 
 669. 
 Gallaher (GauUagher) v. Caldwell, 0. S. ii. 181. 
 
 22 Penna. St. 300. 
 Galland v. Miller, O. S. i. 698. 4 G. Greene 191. 
 Gallarati v. Orser, N. S. iv. 190. 13 E. P. Smith 
 
 fN. Y.) 324. 
 Gallatin v. The Pilot, O. 8. ii. 697. 2 Wall., Jr. 
 
 592. 
 Galligan v. Faunder (Fannan), N. S. iv. 510. 
 
 9 Allen 192. 
 Gallobeo v. Mitchell, N. S. xii. 730. 10 Kans. 
 
 75. 
 Gallup V. Merrill, N. S. vii. 634. 40 Verm. 133. 
 Galpin v. Atwater, N. S. i. 313. 29 Conn. 93. 
 Gambart v. Ball, N. S. iii. 628." 14 C. P. N. S. 
 
 306. 8 L. T. N. S. 426. 9 Jur. N. S. 1059. 
 Gammon v. Plaisted, N. S. xii. 264. 61 N. H. 444. 
 Gamsbey v. Ray, N. S. xiii. .69. 52 N. H. 513. 
 Gannon v. Hargadon, N, 8. v. 384, 10 Allen 106. 
 Cans V. Frank, N. S. i. 635. 36 Barb. 320. 
 Ganson v. Madigan, N. S. iii. 608. 15 Wis. 144. 
 Garbutt v. Smith, N. S. ill. 188. 40 Barb. 22. 
 Gardiner (Gardner) v. Merritt, N. 8. x. 127. 32 
 
 Md. 78. 
 Gardiner v. Suydam, O. 8. i. 179. 3 Selden 
 
 (N. Y.) 367. 
 Gardner v. Brown, N. 8. xiv. 464. 21 Wall. 36. 
 Gardner v. Gardner, O. S. i. 122. 
 Gardner's (Gordner's) Adm'r v. Heifley, N. S. 
 
 v.^a. 49 Penna. St. 163. 
 Gardner v. Kersey, N. 8. ix, 639. 39 Geo. 664. 
 Gardner v. Lane, N. S. vi. 384. 12 Allen 39. 
 Gardner v. Walsh, O. S. iv. 123. 24 L. J. Q. B. 
 
 276. 19 Jur. 828. 
 Garland i'. Furber, N. 8. vii. 256. 47 N. H. 301. 
 Garland v. Lane, N. S. vi. 255. 46 N. H. 245. 
 Garner v. Bird, Ex'r, N. S. x. 62, 66. 57 Barb. 
 
 277. 
 Garrett v. Jackson. 0. S. i. 438. 20 Penna. St. 381. 
 Garsed v. Turner, N. S. xii. 785, 787. 71 Penna. 
 
 St. 66. 
 Garvey v. Jarvis, N. S. ix. 124. 64 Barb. 179. 
 Gas Company v. Memphis, N. S. ix. 57. 8 Wall. 
 
 64. 
 Gaskill V. Aldrich, N. 8. xiii. 196. 41 Ind. 338. 
 Gas Kight Co. v. Ely, N. S. iii. 60. 39 Barb. 174. 
 Gas Light Co. v. Industrial Works, N. S. xiii. 
 
 526. 28 Mich. 182. 
 Gass V. Callunry (Coblens), N. S. viii. 381. 43 
 
 Mo. 337. 
 Gaston's Appeal, William. O. S. ii. 120. 
 Gates V. Salmon, N. S. viii. 510. 35 Cal. 576. 
 Gaugler (Gougler) v. Price's Adm'r, N. b. v. 59. 
 49 Penna. St. 86. 
 
 GauUagher v. CaldweU, 0. 8. ii. 181. 22 Penna. 
 
 St. 300. 
 Gault V. Brown. N. S. viii. 572. 48 N. H. 183. 
 Gauntlet, The, O. 8. i. 48. 3 Rob. Ad. Cas. 167. 
 Gawtry v. Doane, N. S. vi. 714. 48 Barb. 148. 
 Gay I'. Gay, N. S. ii. 697. 6 Allen 157, 181. 
 Gay V. Johnson, H. S. v. 700. 45 N. H. 687. 
 Gay V. Winter, N. 8. viii. 184. 34 Cal. 
 Gee V. Cheshire Co. Fire Ins. Co., N. S. xiv. 706. 
 
 55 N. H. 65. 
 Geiselman v. Scott, N. 8. xiv. 585. 26 Ohio St. 
 
 Gelpcke v. City of Dubuque, N. 8. iv. 115. 1 
 
 WaU. 175. 
 Gelpcke v. Dubuque, N. S. iii. 630. 1 WaU. 
 
 175. 
 Genesee College v. Dodge, N. 8. iii. 670. 12 E. 
 
 P. Smith (N. Y.) 213. 
 Genet, Ex'r v. Lawyer, N. S. xi. 400. 61 Barb. 
 
 211. 
 Genlinghouse v. WhitweU, N. S. viii. 60. 51 
 
 Barb. 208. 
 Gent V. Cole, N. 8. xiii. 255. 38 Md. 110. 
 George v. Braden, N. S. xii. 406. 70 Penna. St. 
 
 66. 
 George v. George, N. S. vii. 319. 47 N. H. 27. 
 George v. Wood, N. S. iv. 765. 9 AUen 80. 
 Georgia v. Stanton, N. 8. vii. 441. 6 Wall. 60. 
 Georgia, The, N. 8. viii. 250. 442. 7 WaU. 32. 
 Gere v. Gundlach, N. S. ix. 716. 57 Barb. 13. 
 Gerhardt d. Boatmen's Saving Ins., S.S. vi. 
 
 247. 38 Mo. 60. 
 Qerke Co. Treas. v. Purcell, N. 8. xiv. 753. 25 
 
 Ohio St. 229. 
 German Union Building Asso. v. Sendmeyer, 
 
 N. S. V. 443. 60 Penna. St. 67. 
 Gerraania Ins. Co. v. Sherlock, N. 8. xiv. 584. 
 
 26 Ohio St. 33. 
 Gerrish v. Clough, N. 8. viii. 446. 48 N. H. 9. 
 Getty V. Shearer, O. S. i. 120. 20 Penna. St. 12. 
 Ghegan v. Young, O. S. ii. 570. 23 Penna. St. 18. 
 Gibbs V. Benjamm, N. S. xii. 791 . 45 Verm. 124. 
 Gibney t'. Marchay, N. 8. vi. 120. 10 E. P. Smith 
 
 (N. Y.) 301, 
 Gibson V. Chouteau, N. S. ix. 198. 8 WaU. 314. 
 Gibson II. Gibson, O. S. i. 124. 20 Penna. St. 9. 
 Gibson V. Hibbard, N. S. iv. 571. 13 Mich. 214. 
 Gibson V. Randolph, O. 8. i. 700. 24 Miss. 237. 
 Gibson v. RoU, N. S. ii. 118. 27 lU. 88. 
 Gibson v. Stone, N. 8. v. 61, 189. 43 Barb. 285. 
 Gibson v. Sturge, O. S. iii. 511. 19 Jur. 269. 
 Gibson (Gibsons) v.V. States, N. S. ix. 199. 8 
 
 Wall 269 
 Gibson v. Warden, N. S. xii. 119. 14 Wall. 244. 
 Gifford V. Belts, N. 8. ix. 391. 64 N. C. 62. 
 Gilbert v. Earl, N. 8. xiv. 766. 47 Verm. 9. 
 GUbert v. Kennedy, N. S. xi. 600. 22 Mich. 
 
 117. 
 Gilbert v. Priest. N. S. xiii. 62. 65 Barb. 444. 
 Gilbert v. The Phceuix Ins. Co., N. S. i. 767. 36 
 
 Barb. 372. 
 Gildersleeve v. Burrows, N. S. xiv. 126. 24 
 
 Ohio St. 204. 
 Gildingti. Eyre, N. S. i. 612. 31 L. J. C. P. 174. 
 Gile D. Libby, N. 8. i. 609. 36 Barb. 70. 
 Giles V. Eaton, N. 8. vii. 443. 64 Me. 186. 
 Gilford II. Winnipiseogee Lake Co., N. 8. xiii. 
 
 56. 52 N. H. 262. 
 Gill V. Palmer, N. 8. i. 318. 29 Conn. 54. 
 GiUam v. Looney. N. S. x. 197. 1 Heiskell 319. 
 Gillespie v. Redmond, 0. 8. iv. 446. 13 Texas 9. 
 Gillespie v. Walker, N. S. ix. 615. 56 Barb. 186. 
 Gillet)!. Corum, N. S. x. 402. 7 Kans. 166. 
 Gilligan v. New York & Harlem R. R. Co., O. 
 
 S. 111. 443, 444. 1 E. D. Smith 463. 
 GUliland v. Schuyler, N. 8. xii. 54. 9 Kans. 
 
 669. 
 Oilman v. Oilman, N. S. vii. 443. 54 Me. 463, 
 
 631. 
 Gilman v. Laconia, N. S, xiv. 704. 55 N. H. 127, 
 
 130. 
 Gilman v. Lockwood. N, S. vi. 632. 4 Wall. 409. 
 Gilman v. I'hUadelphia, N. S. v. 637. 8 Wall. 
 
 713. 
 Gilman v. R. R, Corporation, N. S, v, 572. 10 
 
 Allen 233. 
 
TABLE OF ABSTEACT CASES. 
 
 1051 
 
 Gilmartin v. The Mayor. &c., of Now York, N. 
 
 8. ix. 325. 65 Barb. 239. 
 Gilmore v. Newton, N. S. iv. 51::. 9 Allen 171. 
 Gilmore v. Whitcher, N. S. ili. 261. 6 Allen 113. 
 Gilmore v. Wilson, N. S. vii. 128. 63 Penna. St. 
 
 194. 
 Girard v. Philadelphia, N. S. viii. 245. 7 Wall. 1. 
 Girdleri'. Carter, N. S. vii. 260. 47 N. H. 305. 
 Girdner i'. Stephens, N, S. x. 201. 1 Heiskell 
 
 280. 
 Gist, ex parte. O. S. iv. 188. 26 Ala. 156. 
 Glasgow !'. Kuwse, N. S. viii. 384. 43 Mo. 479, 
 Glass V. Warwick, N. S, i. 565. 40 Penna. St. 
 
 140. 
 Glassey r. Hestonville R. Co., N. S. viii. 815. 
 
 57 Penna. yt. 172. 
 Glazier v. Douglass, N. S. v. 63. 32 Conn. 393. 
 Gleason v. Burk, N. S. ix. 391. 5 C. E. Green 
 
 300. 
 Gleason v. Emerson, N. S. xi. 722. 6] N. H. 405. 
 Gleason v. Florida, N. S. ix, 582. 9 Wall. 779. 
 Gleason v. Smith, N. S. viii. 632. 41 Verm. 293. 
 Glendale W. Co. r. Pro. Ins. Co., 0. S. i. 569. 
 
 21 Conn. 19. 
 Glenn !•. Davis, N. S. xi. 531. &5 Md. 208. 
 Glidden v. Reading. N. S. v. 638, 38 Verm. 52. 
 Gliddeu t'. Strupler, N. S. vi. 635. 52 Penna. 
 
 St. 400. 
 Glines v. Smith, N. S. ix. 618. 48 N. H. 259. 
 Globe Ins. Co. v. Sherlock, N. S. xiv. 684. 25 
 
 Ohio St. 50. 
 Glory, The, O. S. i. 53. 3 Rob. Ad. Cas. 187. 
 Glover p. AUott, N. S. ii. 696. 7 Cooley 471. 
 Goddard !•. Foster, N. S. xiil. 330. 17 Wall. 123. 
 Goddard v. Sawyer, N. S. iv. 765. 9 Allen 78. 
 Godfrey v. Rice, N. S. xi. 459. 69 Me. 308. 
 Godts i>. Rose, O. S. iv. 574. 17 Com. B. 229. 
 Goelsh V. White, N. S. i. 310. 36 Barb. 76. 
 Goff V. Nnttall & Kirkpatrick, N. S. iii. 309. 44 
 
 Peuna. St. 78. 
 Goings V. White, N. S. x. 671. 33 Ind. 125. 
 Gold V. Judson, O. S. i. 571. 21 Conn. 616. 
 Goldsmith v. Guild, K. S. v. 606. 10 Allen 239. 
 Goldthwait v. Bradford, N. S. xii. 319. 36 Ind. 
 
 149 
 Gonzales v. Minor, O. S. ii . 700. 2 Wall., Jr. 348. 
 Goodall, Assignee v. Tuttle, N. S. xiii. 192. 3 
 
 Bis. 219. 
 Gnodell V. Pike, N. S. vii. 703. 40 Verm. 319 
 Goodfellow r. Lamlis, N. S. v. 442. 3b Mo 168. 
 Goodman v. Hann. & St. Jos. Railroad, N. S. 
 
 Ix. 321. 45 Mo. 33. . ^ „ ,„ „, 
 
 Goodrich v. Burbank, N. S. vi. 720. 12 Allen 
 
 459 
 Goodrich v. Warner, O. S. i. 669. 21 Conn 432. 
 Goodwin r. Bait. & Ohio Railroad Co., N. S. x. 
 
 404. 68 Barb. 195. 
 Goodwin v. Bowden, N. S. vn. 439. 64 Me. 424. 
 Goodwin v. Buzzell. N. S. iv. 66. 36 Verm. 9 
 Goodwin V. KeUy, N. S. iv. 187, 188. 42 Barb. 
 
 194 
 Gordon v. Graham, N. S. x. 413. 64 Penna. St. 
 
 339 
 Gordon v. Norris et al., N. S. xi. 271. 49 N. H. 
 
 Gordon v. Parmelee, N. S. i. 178 2 Allen 212. 
 Gordon v. Sizer, N. S. vi. 512. 3? Miss. 805 
 Gordon v. United States, K. S. vm. 244. 7 Wall. 
 
 188 
 Gordon's Adm'r v. Hammell, N. S. viii. 187. 4 
 
 C. E. Green 216. „ „, „„ 
 
 Gorton v. Brown, N. S. ii. 119. 27 111. 489. 
 Gorton v. The W. R. T. Insurance Co., O. S. iv. 
 
 GoS"'?! Cahill N. S. iv. 2,54. 42 Barb. 310. 
 Gottechalk ti.'Whltter (Witter), N. S. xiv. 684. 
 
 Go^ld'i'°Ene™; N. S. iii. 69. 39 Barb. 163. 
 GoSld V. oiuS N. S. i 632. 36 Barb. 270 
 Gould V. Hud. River K. R. Co., O. S. 1. 183. 2 
 
 Go'ulf" SairJri's'N S. vi. 775^ Io^Te'd 
 Gnurdier v. Cormack, O. S. V. dlO. ^ h.. D. 
 
 GmreV Girdle (Girdler), N. S. viii. 438. 7 Wall. 
 196. 
 
 Graham v. Berryman, N. S. viii. 128. 4 C. 
 
 E. Green 29, 674. 
 Graham v. C. & N. C. R. R. Co., N. S. xii. 327. 
 
 36 Ind. 463. 
 Graham v. Marshall, N. S. vi. 637, 62 Penna. 
 
 St. 28. 
 Graham v. Wickham, N. S. iii. 628. 8 L. T. N. 
 
 S. 679— L. J. 9 Jur. N. S. 702. 11 W. R. 1009. 
 Grand Rapids v. Hughes, N. S. vi. 319. 15 Mich. 
 
 54. 
 Grand Trunk R. R. Co. v. Latham, Adm'r, N. 
 
 S. xiv. 462. 63 Me. 177. 
 Granger v, Wayne Cir. Judge, N. S. xiii. 389. 
 
 27 Mich. 406. 
 Grant v. Barry, N. S. iv. 437. 9 Allen 459. 
 Grant v. Grant, N. S. ix. 194. 56 Me. 673. 
 Grant v. Merrill, N. S. xiv. 711. 36 Wis. 390. 
 Grassmeyer v. Beeson, O. S. iv. 446. 13 Texas 
 
 524. 
 Gravatt v. The State, N. S. xiv. 644. 25 Ohio St. 
 
 162. 
 Gravenstine's Appeal, N. S. v. 251. 49 Penna. 
 
 St. 310. 
 Graver's Appeal, N. S. v. 383. 50 Penna. St. 
 
 189 
 Graves v. Berdan, N. S. iii. 700. 12 E. P. Smith 
 
 (N. Y.)498. 
 Graves v. Clay, N. S. vi. 384. 
 Graves v. Hampden Fire Ins. Co., N. S. v. 511. 
 
 10 Allen 281. 
 Graves v. Wash. Marine Ins. Co., N. S. vi. 608. 
 
 12 Allen 391. 
 Gray v. Jackson, N. S. xii. 53. 51 N". H. 9. 
 Gray v. Vlrich et al., N. S. xi. 331. 8 Kans. 112. 
 Gray v. Viers, N. S. x. 471. 33 Md. 18, 169. 
 Great Falls M. F. Ins. Co. v. Harvey, N. S. iv. 
 
 508. 45 N. H. 292. 
 Great Western Turnpike Co. v. Loomis, N. S. 
 
 iv. 575. 5 Tiffany (N. Y.) 127. 
 Gregg V. Drakely, N. S. ix. 192. 8 Wall. 242. 
 Green v. Fox, N. S. iii. 606. 7 Allen 85. 
 Green v. Goble, N. S. x. 539, 602. 7 Kans. 297. 
 Green v. Humphry, N. S. v. 383. 50 Penna. 
 
 St. 212. 
 Green v. Kennedy, N. S. vi. 127. 46 Barb. 1 6. 
 Green v. Langdon, N. 8. xiii. 458. 28 Mich. 
 
 221. * 
 
 Green v. Lowry, N. S. viii. 317. 38 Geo. 648. 
 Green & B. R. N. Co. v. Marshall, N. S. xiv. 
 
 581. 48 Ind. 696. 
 Green v. North Yarmouth, N. S. x. 603. 68 Me. 
 
 64. 
 Green v. Nunnemacher, N. S. xiv. 708. 36 Wis. 
 
 60. 
 Green v. PettingiU, N. S. viii. 64. 47 N. H. 375. 
 Green v. Richards, N. S. xii. 66. 8 C. E. Green 
 
 32, 636. 
 Green v. Shepherd, N. S. iii. 62. 5 Allen 589. 
 Green v. Tantum, N. S. viii. 120. 4 C. ii. Green 
 
 106, 574. 
 Green v. United States, N. S. ix. 466. 9 Wall. 
 
 655. 
 Green v. Van Buskirk, N. S. viii. 246. 7 Wall. 
 
 139 
 Green's Appeal. N. S. ii. 447. 42 Penna. St. 25. 
 Greene v. Creighton, N. S. ii. S83. 7 R. 1. 1. 
 Greene v. Pacific Mutual Ins. (;o., N. S. v. 188. 
 
 9 Allen 217. 
 Greenfield Bank v. Crafts, N. S. ii. 379. 4 Allen 
 
 447 
 Greenleaf v. Moody, N. 8. vii. 185. 13 Allen 363. 
 Greenlee v. Greenlee, O. S. ii. 188. 22 Penna. 
 
 St. 226. 
 Greensburg Road. O. S. i. 124. 
 Greenslade v. Dare, 0. S. iv. 126. 24 L. J. 
 
 Chanc. 490. , „ . 
 
 Greenville. Inhab's of v. Seymour, N. S. xi. 
 
 265. 7 C. i:. Green 458. 
 Greenwich Township v. Easton R. R. Co., N. 8. 
 
 xiii. 330. 9 C. E. Green 217. 
 Greenwood v. Greenwood, N. 8. viii. 316. 28 
 
 Md. 369. 
 Greer v. Greer, O. 8. iii. 62. 9 Grat. 330. 
 Gridley v. Bingham, N. S. x. 127. 61 111. 163. 
 Gridley v. Gridley, N. S, ii, 121. 10 E, P. Smithi 
 
 (N, Y.) 30, 
 
1052 
 
 TABLE OF ABSTRACT OASES, 
 
 Grier v. City of Pittsburg, O. S. ii. 189. 22 
 
 Penna. St. 64. 
 Grier v. Nickle, O. S. i. 119. 
 Griffin v. Bartlett, N. S. xiv. 711. 55 N. H. 119. 
 Griffin v. Nitcher, N. S. x. 68. 67 Me. 270. 
 Griffiths V. Kutchards, O. S. iii. 128. 18 Jur. 
 
 649. 
 Griffiths V. Teetgen, O. S. iii. 702. 24 L. J. 35. 
 Griggs V. Morgan, N. S. v. 87. 9 Allen 37. 
 Grimes v. Kimball, N. S. i. 669. 3 Allen 518. 
 Grimes v. Kimball, N. S. iv. 118. 8 Allen 153. 
 Grisham v. Morrow, N. S. ix. 638. 40 Geo. 487. 
 Griswold v. Sabin, N, S. xii. 328. 51 N. H. 167. 
 Grisvvold v. The State, N. S. ix. 262. 24 Wis. 
 
 141. 
 Grocers' N. Bank of N. Y. v. Clark, N. S. vi. 774. 
 
 48 Barb. 26.' 
 Grode v. Van Valen, N. S. xiv. -323. 10 C. E. 
 
 Green 95. 
 Groesbeck v. Seeley, N. S. iv. 572. 13 Mich. 329. 
 Groff V. Hansel, N. S. x. 408. 33 Md. 161. 
 Groome, Adm'r v. Lewis, N. S. vii. 256. 23 Md. 
 
 137. 
 Grout V. Knapp, N. S. vii. 702. 40 Verm. 163. 
 Grove v. City of Fort Wayne, N. S. xiv. 59. 45 
 
 Ind. 429. 
 Grove v. Ganger (Greve v. Ganger), N. S. xiv. 
 
 643. 36 Wis. 369. 
 Grove i). M'Calla, O. S. i. 251. 21 Penna. St. 44. 
 Grand v. Pendergast, N. S. x. 405. 58 Barb. 
 
 216. 
 Guano Co. v. Guano Co., N. S. v. 252. 44 Barb. 23. 
 Guffy V. Free, O. S. 1. 125. 19 Penna. St. 884. 
 Giiitean (Guiteau) v. Wisely, N. S. ix. 124. 47 
 
 111. 433. 
 Gunnell v. Bird, N. S. x. 70. 10 Wall. 304. 
 Gupton V. Gupton, N. S. x. 135. 47 Mo. 403. 
 Gurney v. Ford, N. S. i. 317. 2 Allen 578. 
 Gurney v. Gurney, O. S. iii. 511. 19 Jer. 298. 
 Guston V. People. N. S. xi. 263. 61 Barb. 35. 
 Gut V. State, ISl. S. ix. 511. 9 Wall. Bo. 
 Gutchess V. Whiting, N. S. vi. 60. 46 Barb. 139. 
 .Guthrie's Appeal, O. S. i. 248. 37 Penna. St. 9. 
 Guyette v. Bolton, N. S. xiii. 777. 46 Verm. 228. 
 
 Haokensack Improvement Co. %. N. J. M. E. 
 
 E. C, N. S. xi. 66. 7 C. E. Green 94. 
 Hackett v. Lane, N. S. xiii. 124. 61 Me. 31. 
 Hackettstown Nat. Bank v. Eea, N. S. xii. 600. 
 
 64 Barb. 175. 
 Haddock v. Boston & Maine E. E., N. S. i. S07. 
 
 3 Allen 298 
 Hagan v. Pope, 0. S. i. 187. 14 How. 29. 
 Hagee v. Grossman, N. S. ix. 454. 31 Ind. 223. 
 Hagen v. Bowery Nat. Bank, N. S. xii. 594. 64 
 
 Barb. 197. 
 Hager v. Cleveland, N. S. xii. 189. 36 Md. 476. 
 Hagerman v. Ohio B. & S. Asso., N. S. xiv. 643. 
 
 28 Ohio 186. 
 Hagey v. Hill, N. S. xiv. 115. 76 Penna. St. 108. 
 Haggerty v. Amory, N. S. iii. 699. 7 Allen 458. 
 Haggerty v. Johnston, N. S. xiv. 687. 48 Ind. 41. 
 Hahn v. Kelly, N. S. viii. 122. 34 Cal. 
 Haight V. Lucia, N. S. xiv. 643. 36 Wis. 355. 
 Haight V. Turner. 0. S. i, 567, 569. 21 Conn. 593. 
 Haile v. The State. 0. S. i. 379. 380. 1 Swan 248. 
 Hale V. Everett, N. S. xiii. 585. 53 N. H. 9. 
 Hale et al. v. Eawallie, N. S. xi. 52. 8 Kans. 136. 
 Hale V. Trout, N. .'*. viii. .103. 35 Cal. 229. 
 Haie's Ex. v. Ard's Exec, N. S. iv. 638. 48 
 
 Penna. St. 22. 
 Hales I'. London & N. W. E. Co., N. S. iii. 441. 
 
 32 L. J. Q. B. 292. 
 Haley v. Clark, O. S. iv. 2,'iO. 26 Ala, 4.'i9. 
 Hall V. County Commissioners of Middlesex, 
 
 N. S. V. 320. 10 Allen 100. 
 Hall & Hume v. Ecclestou, N. S. xiii. 195. 37 
 
 Md. 510. 
 I Hall w. Hall , N. S. i. 690. 4 Allen 39. 
 Hall V. Hall, N. S. vi. 382. 46 N. H. 240. 
 Hall V. Hyde, O. S. iv. 442. 
 Hall V. Janson, 0. S. iii. 700. 24 L. J. 97. 
 Hall V. Jones, N. S. iv. 440. 32 111. 38. 
 Hall V. Piddock, N. S. x. 350. 6 C. E. Green 311. 
 Hall V. Bobbins, N. S. xi, 266. 61 Barb. 33. 
 
 Hall V. Eobert-son, 0. S. iii. 256. 18 Jur. 635. 
 Hall V. Sampson, N. S. vi. 381. 8 Tifl'any (N. 
 
 Y.J 274. 
 Hall D. Sands, N. S. vi. 187. 52 Me. 355. 
 Hall V. Soule, N. S. ii. 696. 7 Cooley 494. 
 Hall V. Wager, N. S. xiii. 120. 3 Bis. 28. 
 Hall Ex. V. Western Trans. Co., N. S. vi. 124. 
 
 7Tiftany(N. Y.)284. 
 Hall V. Whiston, N. S. ii. 558. 5 Allen 126. 
 Hall V. Woodman. N. S. xi. 328. 49 N. H. 295. 
 Hallock V. Belcher, N. S. iv. 184. 42 Barb. 199. 
 Hallock V. Jaudin, N. S. viii. 188. 34 Cal. 
 HalloweU v. Curry, N. S. ii. 313. 41 Penna. St. 
 
 322. 
 Ham V. Inhabitants of Wales, N. S. x. 603. .58 
 
 Me. 222. >• 
 Hamblett v. Bennett, N. S. iii. 317. 6 AUen 140. 
 Hamer v. Bell, O. S. i. 52. 19 L. T. 235. 
 Hamill v. Mason et al., N. S. x. 134. 61 HI. 488. 
 Hamilton v. Dillin, N. S. xiv. 4,54. 21 Wall. 73. 
 Hamilton v. Dobbs, N. S. viii. 187. 4 C. E. 
 
 Green 227. 
 Hamilton v. Doolittle, N. S. vi. 119, 128. 37 111. 
 
 473. 
 Hamilton v. Ganyard, N. S. i. 236. 34 Barb. 204. 
 Hamilton, In re. Estate of, N. S. viii. 126. 34 
 
 Cal. 
 Hamilton v. Nickerson, N. S. vi 68. 11 Allen 
 
 308. 
 Hamilton v. Eailroad Co., N. S. xiv. 56, 60. 36 
 
 Iowa 31. 
 Hamilton v. Valiant, N. S. ix. 328. 30 Md. 139. 
 Hamlet v. Johnson, O. S. iv. 252. 26 Ala. 557. 
 Hamlin v. Spaulding, N. S. ix. 123. 27 Wis. 360. 
 Hammon v. Eogers, 0. S. i. 50. 7 Moore's E. 
 
 P. C. 160. 
 Hammond v. American Life Ins. Co., N. S. iii. 
 
 186. 10 Gray 306. 
 Hammond v. Morrison's Lessee, N. S. x. 479. 
 
 33 Md. 95. 
 Hammond v. Eogers, O. S. iii. 128. 7 Moore 
 
 Eep. 160. 
 Hampstead v. Plaistow, N. S. ix. 715. 49 N. H. 
 
 84. 
 Hanchett u. Briscoe, 0. S. vi. 61. 22 Beav. 
 
 496. 
 Hancox v. Jacques, O. S. i. 182. 
 Hand v. Jacobus and Wife, N. S. viii. 122. 4 
 
 C. E. Green 79. 
 Haney v. 'The Steamer Louisiana, O. S. vi. 422. 
 Hanks v. Drake, N. S.vii. 381. 49 Barb. 186. 
 Hanna ii. JeffersonvUle E. E. Co., N. S. x. 201. 
 
 32 Ind. 113. 
 Hanna v. Wray, N. S. xiv. 760. 77 Penna. St. 
 
 27. 
 Hannahs v. Sheldon, N. S. x. 472. 20 Mich. 278. 
 Hanson v. European & N. A. Eailroad Co., N. 
 
 S. xiv. 197. 62 Me. 84. 
 Hanson v. Olcott, N. S. iii. 765. 12 Mich. 452. 
 Hanson v. Taylor. N. S. ix. 194. 28 Wis. .547. 
 Hantz V. Commonwealth, O. S. i. 637. 2 Penna. 
 
 St. 333. 
 Hardcastle v. Md. & Del. E. E. Co., N. S. x. 130. 
 
 32 Md. 32. 
 Harding v. Lamed, N. S. ii. 252. 4 Allen 426. 
 Hardy v. Watts. O. S. ii. 119. 22 Penna. St. 33. 
 Hargrave v. Conroy, N. S. viii. 252. 4 C. E. 
 
 Green 281. 
 Harkness v. Sears & Walker, 0. S. iv. 250. 26 
 
 Ala. 493. 
 Harlan v. Harlan, O. S. i. 438, 439. 20 Penna. 
 
 St 303 
 Hariess 'v. Sec'y of State, N. S. iii. 314. 30 111. 
 
 434. 
 Harmer v. Cornelius, 0. S. vii. 511. 28 L. J. C. 
 
 P. 85. 
 Harmony Co. v. Hazlehurst, N. S. ix. 451. 30 
 
 Md. 380. 
 Harms v. Parsons, N. S. iii. 627. 7 L. T. N. S. 
 
 815— E. 
 Harnor v. Groves, O. S. iii. 699. 3 Com. L. Eep. 
 
 406. 
 Harpending v. Shoemaker, N. S. 11. 248. 37 
 
 Barb. 270. 
 Harper's Appeal, N. S. x. 411. 64 Penna. St. 
 
 31o. 
 
TABLE OF ABSTRACT CASES. 
 
 1053 
 
 Harper v. Little, 0. S. ii. 185. 
 Harper v. Phelps, O. S. 1. 511. 21 Conn. 267. 
 Harper v. Scott, 0. S, li. 318. 12 Geo. V2o. 
 Harpham v. Haynes, N. S. iii. 318. SO 111. 404. 
 Harral t>. Feagin, N. S. xi. 832. 43 Geo. 339. 
 Harris v. Avery, N. S. viii. 437. 5 Kans. 146. 
 Harris i'. Dreesman, 0. S. iii. 127. 23 L. J. 210. 
 Harris v. Eldred, N. S. ix. 647. 42 Verm. 89. 
 Harris, Ex parte, N. S. xiv. 646. 62 Ala. 87. 
 Harris v. Gest, O. S. iv. 691. 4 Ohio St. 472. 
 Harris v. Harris, N. S. viii. 578. 5 Kaus. 46. 
 Harris, In re, N. S. x. 67. 47 Mo. 161. 
 Harris v. Jones' Heirs (Rueiier), O. S. i. 445. IS 
 
 B. Monroe 564. 
 Harris v. Nesbit, O. S. iii. 56. 24 Ala. 398. 
 Harris v. Thompson, O. S. 1. SIO. 20 L. T. (C. 
 
 B,)99. 
 Harrison v. Brolasky, O. S. 1. 439. 20 Penna. 
 
 St. 299. 
 Harrison v. Hoyle, N. S. xlv. 127. 24 Ohio St. 
 
 254. 
 Harrison v. Roy, N, S. vi. 604. 39 Miss. 396. 
 Harrison v. Spaeth, O. S. iii. 127. 23 L. J. 165. 
 Harrison v. Swift, N. S. vii. 57. 13 Allen 144. 
 narrower v. Eitson, N. S. ii. 315. 37 Barb. 301. 
 Hart V. City of Brooklyn, N. S. i. 631. 86 Barb. 
 
 226. 
 Hart V. Hart, O. S. ill, 700. 2 Eccl. & Am. Eep. 
 
 193. 
 Hart V. Reynolds, N, S. x, 200, 191. 1 Heiskell 
 
 208. 
 Hartford Bridge Co. v. Union Ferry Co., N. S. 
 
 i. 187. 29 Conn. 210. 
 Hartley v. Harrison, N. S. ii. 57. 10 E. P. Smith 
 
 (N, Y.) 170. 
 Hartley and Minors' AppL, N. S. vii. 64. 63 
 
 Penna. St. 212. 
 Hartmanjj.Woehr, N,S,vii. 765. 3 C.E.Green 
 
 383 
 Hartiing v. The People, N. S. iii. 501. 12 E. P. 
 
 Smith (N. Y.) 154, 167. • 
 
 Hartz's Appeal. N. S. i. 630. 40 Penna. St. 209. 
 Hartzell v. Commonwealth, N. S. i. 761. 40 
 
 Penna. St. 462. 
 Harvey i'. Ball. N. S. x. 65. 32 Ind. 98. 
 Harvey v. Harvey, N. S. iv. 320. 32 Beav. 441. 
 Harvey v. The City of Rochester, N. S. i. 312. 
 
 25 Barb. 177. 
 Harvey v. Tyler, N. S. iv. 767. 2 Wall. 328. 
 Harward v. St. Clair & Monroe L. & D. Co., N, 
 
 S. ix. 712, 718. 51 m. ISO. 
 Harwood v. People, N. S. iii. 4, 99. 12 E. P. 
 
 Smith (N. Y.) 190. 
 Harwood v. EaUroad Co., N. S. xiil. 329. 17 
 
 Wall. 78. 
 HaskeU v. Boardman, N. S. iv. 118. 8 AUen 38, 
 Haskin, Admr. v. N. Y. Cent. &c. R. R. Co., N. S. 
 
 xii. 663, 667. 65 Barb. 129. 
 Haslet V. Smith (Murray), O. S. i. 124. 19 Penna. 
 
 St. 356. 
 Hatch V. Antrim, N. S. ix. 640. 51 HI. 106. 
 Hatch V. Bates, N. S. vii. 442. 54 Me. 136. 
 Hatch V. Stitt, N. S. x. 799. 66 Penna. St. 264. 
 Hathaway v. Sherman, N. S. xiil. 260. 61 Me. 
 
 466. 
 Hathaway v. Thayer, N. S. iv. 317. 8 Allen 421. 
 Hathom v. Germanla Ins. Co., N. S. Ix. 385. 66 
 
 Barb. 28. 
 Haughwout V. Murphy, N. S. x. 202. 6 C. E. 
 
 Green 118. 
 Haus V. Palmer, O. S. i. 635. 21 Penna. St. 296. 
 Hause v. GUger, Admr., N. S. vi. 635. 52 Penna. 
 
 St. 412. 
 Havemeyer v. Iowa County, N. S. v. 666. 3 
 
 Wall. 294. 
 Haven v. Thompson, N. S. xii. 460. 8 C. E. 
 
 Green 321. 
 Havens v. Town of Ludlow, N. S. vm. 502. 41 
 
 Verm. 418. 
 Haver v. Tenney, N. S. xiv. 56. 36 Iowa 80. 
 Hawk V. Thorn, N. S. Ix. 198. 54 Barb. 164. 
 Hawkins v. Chapman, N. S. xii. 57. 36 Md. 83. 
 Hawkins v. Commonwealth ex rel, N. S. xiv. 
 
 455. 76 Penna. St. 15. 
 Hawkins v. Learned, N. S. xiv. 642. 64 N. H. 
 
 Hawley v. Griswold, N. S.iv. 186, 188. 42 Barb. 
 
 18. 
 Hawley i'. Keeler, N. S. xi. 724. 62 Barb. 281. 
 Hawley v. Mayor iSi C. of Balti., N. S. x. 638. 
 
 33 Md. 270. 
 Hawthorn v. Calef, N. S. iv. 604. 2 Wall. 10. 
 Hay V. Estell. N. S. vii. 702, 3 C. E. Green 2,-il. 
 Hay V. Estell, N. S. viii. 125. 4 C. E. Green 133. 
 Hayden v. Tucker, N, S. vi. 62. 37 Mo. 214. 
 Hayes v. Hayes. N. S. viii. 575. 48 N. H. 219. 
 Hayes v. Heyer, N. S. vi. 383. E. Tiflany iN, 
 
 Y.) 326. 
 Haynes v. Hart, N. S. iv. 191. 42 Barb. 5S. 
 Hays V. Wells, N. S. xi. 59. 34 Md. 512. 
 Hayward v, Davidson, N. S, xiil. 254. 41 Ind. 
 
 212. 
 Hazleton v. Lesure, N. S. v. 126. 9 Allen 24. 
 Hazleton i;. Union Bank, N. S. xii. 464. 32 WiS; 
 
 34. 
 Hearn v. London S. W. E. E. Co., O. S. iii, 508. 
 
 19 Jur. 287. 
 Heath v. Cook, N. S. iii. 507. 7 Allen 69. 
 Heath, Adm'rs v. Grenell, Adm'r, N. S. xi. 333, 
 
 61 Barb. 190. 
 Heath v. Page, N. S. iv. 639.' 48 Penna. St. ISO. 
 Heath v. Portsmouth Savings Bank, N. S. vi. 
 
 246. 46N. H. 78. : 
 
 Heath v. Stevens, N. S. viii. 574. 48 N. H. 251. 
 Heath v. Unwin, O. S. iii. 127. 18 Jur. 601. 
 Heegii.Weigand, N. S. x. 760. 33 Ind. 280. 
 Hegeinan v, Johnson, N. S. i. 377. 35 Barh, 
 
 200. 
 Height i;. Wheeler, O. S. i. 699. 
 Heineky v. Earle, O. S. vii. 611. 28 L. J. Q. B, 
 
 79. 
 Heise v. Earth, N. S. xiv. 399. 40 Md. 259. 
 Heist V. Hart, N. S. xiii. 462. 73 Penna. 286'. 
 Helena Sophia, The, 0. S. i. 48. 3 Rob. Adm', 
 
 Caa. 265. 
 HeUen v. Crawford, N. S. iii. 310. 44 Penna. 
 
 St. 105. 
 Heminway v. Davis, N. S. xiv. 64, 66. 24 Ohio 
 
 St. 150. 
 Hemmens v. Bently, N, S. xiv. 705. 32 Mich, 
 
 89. 
 Henderson's Distilled Spirits, N. S. xii. 123. 14 
 
 Wall. 44. 
 Hendon v. White, N, S. xiii. 455, 456. 52 Ala. 
 
 697 
 Hendrlx v. Fuller, N. S. x. 403. 7 Kans. 331. 
 Hennequin v. Naylor, N. S. ii. 68. 10 E. P. 
 
 Smith (N.Y.)1S9. 
 Hennessey v. White, N. S. i. 57. 2 Allen 48. 
 Henry v. Brothers, N. S, iv. 638. 48 Penna. St. 
 
 70. 
 Henry v. Huntley, N. S. iv. 263. 37 Verm. 316. 
 Hensley v. State, N. S. xiv. 396. 52 Ala. 10. 
 Herbert v. Conrad, O. S. i. 440. 20 Penna, St. 
 
 319 
 Hem'don v. Howard, N. S. ix. 576. 9 Wall. 664. 
 Herrick v. King, N. S. viii. 124. 4 C. E. Green 
 
 80. 
 Herrick v. Woolverton, N. S. iv. 190. 42 Barb. 
 
 60. 
 Hershey v. Wieting (Whiting), N. S. v. 380. 50 
 
 Penna. St. 240. 
 Hess's Appeal, N. S. ii. 633. 43 Penna. St. 73. 
 Hewett V. Swift, N. S. i. 505. 3 Allen 420. 
 Hewitt, Attachment against, N. S. xiv. 327. 10 
 
 C. E. Green 210. 
 Hewitt V. Kuhl, N. S. xiv. 316. 10 C. E. Green 
 
 24. 
 Heyer v. Heyer, N. S. ii. 439. 38 Barb. 92. 
 Heyn v. Philips. N. S. ix. 322. 37 Cal. 529. 
 Heyward v. City of New York, 0. S. i. 181. 3 
 
 Selden (N. Y.) 314. 
 Heywood v. Benton, N. S. xii. 64. 61 N. H. R04. 
 Hickerson v. McFaddiu & Moore, O, S. i. 381. 
 
 1 Swan 288. 
 Hickey v. Hinsdale, N. S. iii. 248. 12 Mich. 99. 
 Hickman v. Jones, N. S. ix. 443. 9 Wall. 197. 
 Hickok V. Bliss, N. S. i. 240. 34 Barb. 321. 
 Hickox V. Parmelee & Another, 0. S. i. 566. 21 
 
 Conn. 86. 
 Hicks & Hathawav v. Campbell, N. S, viii. 190. 
 
 4 C. E. Green 183. 
 
1054 
 
 TABLE OF ABSTEACT OASES. 
 
 13. 52 
 
 Hicts, Adm'r r. Clark, Adm'r, N. S. viii. 504. 
 
 41 Verm. 183. , , „ „ 
 
 Hicksville Kailroad Co. r. Long Island R. R. 
 
 Co., N. S. vil. ISS. 48 Barb. 3o5. 
 Hiester v. Green, N. S. iv. 639. 48 Penna. St. 96. 
 Higbee v. C. & A. E. R. Co., N. S, viii. 252. 4 
 
 C. E. Green 276. , , 
 
 Higgins V. Carlton, N. S. viii. 265. 28 Md. 115. 
 Higgiuson v. Inhabitants of Nahant, N. S. vi. 
 
 187. 11 Allen 630. 
 Hildebeitle's Appeal, 0. S. i. 635. . 
 
 Hill V. Crockford, N. S. ii. 68. 10 E. P. Smith 
 
 (N. Y.) 128. 
 Hill V. De Eochemont, N. S. viii. 574. 48 N. 
 
 H. 87. 
 Hill V. Fleming (Flemming), N. S. ix. 508. 39 
 
 Geo. 662. 
 Hill V. Frazier, O. S. ii. 185. 22 Penna. St. 320. 
 Hill V. Goodrich, N. S. vi. 250. 46 N. H. 41. 
 Hill V. Grigsly, N. S. viii. 511. 35 Cal. 656. 
 Hill, Adm'r v. Huckabee, N. S. xiv. 391, 393 
 
 AlSi 155 
 Hill V. Mendenhall, N. S. xiv. 524. 21 WaU. 453. 
 Hill V. Miller, N. S. v. 445. 36 Mo. 182. 
 Hill V. Morse, N. S. xiii. 257. 61 Me. 541. 
 Hill V. Smalley, N. S. xiv. 261. 8 Vroom 103. 
 Hilliard v. Stewartstown, N. S. viii. 369. 48 N. 
 
 H. 280. 
 Hills V. Marcy, N. S. xi. 269. 49 N. H. 265. 
 Hillsborough v. Nichols, N. S. yi. 313. 46 N. 
 
 H. 379. 
 Hillvard (Hilvard) v. Township of Harrison, 
 
 N.' S. xiv. 264. 8 Vroom 170. 
 Hilton V. Eckersly, O. S. iv. 126. 19 Jur. (Q. B.) 
 
 874. 
 Hinds V. Ballon. N. S. iii. 126. 44 N. H. 619. 
 Hindson v. Wetherill, O. S. iii. 128. 18 Jur. 499. 
 Hine v. Pomeroy, N. S. vii. 698. 40 Verm. 103. 
 Hines v. State, N. S. xiii. 775. 24 Ohio St. 134. 
 Hinman.t). Hartford Fire Ins. Co., N. S. xiv. 
 
 321. 36 Wis. 159. 
 Hitchcock V. N. W. Ins. Co., N. S. iii. 600. 12 
 
 E. P. Smith (N. Y.) 68. 
 Hitchcock V. Sawyer, N. S. vi. 775. 39 Verm. 
 
 Hoadley v. "Watson, N. S. xii. 400. 45 Verm. 2g9. 
 Hoag V. Owen, N. S. x. 751. 60 Barb. 34. 
 Hoagland v. Bell, N. S. i. 509. 36 Barb. ,57. 
 Hobart v. Hobart. N. S. x. 412. 58 Barb. 296. 
 Hobbs V. Carter, N. S. iii. 183. 12 Mich. 62. 
 Hobbs V. Manhattan Ins. Co., N. S. ix. 127. 56 
 
 Me. 417. 
 Hobbv V. Hobby, N. S. xii. 598. 64 Barb. 277. 
 Hoch's Appeal, O. S. i. 632. 21 Penna. St. 280. 
 Hodge V. The Town of Bennington, N. S. xi. 
 
 60. 43 Verm. 460. 
 Hodgkins v. Mont. Co. M. Ins. Co.. N. S. i. 237. 
 
 34Barb. 213. 
 HoBfman's Appeal, N. S. iii. 309. 44 Penna. St. 
 
 !I6. 
 Hoflfman v. Beard, N. S. xi. 593. 22 Mich. 59. 
 Hoffman v. Hoffman, O. S. iv. 252. 26 Ala. 536. 
 Hoffman v. Hoffman, N. S. ix. 261, 262. 65 
 
 Barb. 296. 
 Hoffman v. Toner, N. S. v. 187. 49 Penna. St. 
 
 231. 
 Hogan V. Jaques, N. S. viii. 120. 4 C. E. Green 
 
 123. 
 Hoge V. Lansing, N. S. vi. 314. 8 Tiffany (N. 
 
 Y.) 136. 
 Holt V. Stratton Mills, N. S. xiv. 326. 64 N. H. 
 
 109. 
 Holcomb V. Moore, N. S. ii. 380. 4 Allen 629. 
 Holden v. Meadows, N. S. xii. 471. 31 Wis. 284. 
 Holden v. Winsiow. 0. S. i. 123. 19 Penna. St. 
 
 499 * 
 
 Holdredge v. F. & M. Bank, N. S. vii. 189. 16 
 
 Mich. 66. 
 Holdridge v. Utica & B. E. E. R. Co., N. S. Ix. 
 
 637. 66 Barb. 191. 
 HoUingshead, Adm'r v. Alston, O. S. ii. 381. 13 
 
 Geo. 277. 
 HoUister, Adm'r v. Young, N. S. viii. 639. 41 
 
 Verm. 156. 
 HoUoway ii, Galloway et al., N. S. i. 135, 136. 
 
 51 111. 159. 
 
 Holmes' Appeal, N. S. xiv. 760. 77 Penna. St. 
 
 .50. 
 Holmes v. Kidd, O. S. vii. 639. 3.3 L. T. 207. 
 Holmes v. Kidd, O. S. viii. 253. 5 Jur. N. S. 295. 
 Holmes v. Johnson, N. S. ii. 603. 42 Penna. St. 
 
 169 
 Holmes v. Taber, N. S. iv. 612. 9 Allen 246. 
 Holmes v. The Comm., O. S. iv. 439. 25 Penna. 
 
 St. 221. 
 Holmes v. Wakefield, N. S. vi. 573. 12 AUen 
 
 580. „ 
 
 Holt V. Burbank, N. S. vii. 318. 47 N. H. 164. 
 Holt V. Green, N. S. xiii. 463. 73 Penna. St. 198. 
 Holt V. State, N. S. viii. 311. 88 Geo. 187. 
 Hone (Howe) v. The Treasurer of Plainfield, 
 
 N. S. xiv. 251. 8 Vroom 145. 
 Honner v. 111. Central E. E. Co., O. S. iii. 637. 
 
 15 111. 650. 
 Hood V. Hood, N. S. vi. 60. 11 Allen 196. 
 Hood V. Vandyke, N. S. viii. 317. 67 Penna. St 
 
 34. 
 Hoofman i'. Hairrington, N. S. xi. 633. 22 Mich. 
 
 52. 
 Hooper v. Hobson. N. S. x. 72. 67 Me. 278. 
 Hooper u. Hooper, N. S. v. 64. 43 Barb. 292. 
 Hook V. Stone, N. S. iv. 120. 34 Mo. 329. 
 Hope Iron Works v. Holden, N. S. x. 668. 58 
 
 Me. 146. 
 Hope V. Hope, O. S, iii. 125. 23 L. T. 182. 
 Hope Mut. F. Ins. Co. v. Beckman, N. S. x. 197. 
 
 47 Mo. 93. 
 Hopf D. Myers, N. S. Iv. 125. 42 Barb. 270. 
 Hopkins v. Commonwealth, N. S. v. 444. 60 
 
 Penna. 8^-9. 
 Hopkins v. Tangueray. O. S. iii. 128. 18 Jur. 
 
 608. 
 Hopson, Matter of, N. S. iii.^89. 40 Barb. 34. 
 Horn V. Amicable Life Ins. Co., N. S. xii. 466. 
 
 64 Barb. 81. 
 Horn V. Cole, N. S. viii. 570. 61 N. H. 287. 
 Horn V. Lockhart, N. S. xiii. 334. 17 Wall. 670. 
 Horner v. Lawrence, N. S. xiii. 396. 8 Vroom 
 46. 
 
 Hornthall v. The Collector, N. S. ix. 451. 9 
 Wall. 560. 
 
 Horridge v. Willoughby, 0. S. i. 307. 20 L. T. 
 97. 16 J. P. (C. B.) 761. 
 
 Horsey v. Hough, N. S. xiii. 261. 38 Md. 130. 
 
 Horstman v. Gerker, N. S. v. 189. 49 Penna. St. 
 282 
 
 Horton v. Davis, N. S. iii. 700. 12 E. P. Smith 
 (N. Y.)496. 
 
 Horton v. Ingersoll. N. S. v. 59. 13 Mich. 409. 
 
 Horton v. Moot, N. S. x. 750. 60 Barb. 27. 
 
 Horton v. Soyer, 0. S. viii. 250. 4 H. & N. 643. 
 5 Jur. N. S. 989. 
 
 Hosmer v. Sargent, N. S. Iv. 119. 8 Allen 97. 
 
 Hospital ». Foreman, N. S. viii. 766. 29 Md. 524. 
 
 Hosstatter v. Wilson, N. S. i. 634. 36 Barb. 307. 
 
 Hotaling .v. Hotaling, N. S. vi. 511. 47 Barb. 163. 
 
 Hotchkins v. Hodge, N. S. ii. 440. 38 Barb. 117. 
 
 Hotchkiss V. Artisan's Bank, N. S. iv. 381. 42 
 Barb. .517. 
 
 Hotchkiss V. Etting, N. S. i. 508. 36 Barb. 38. 
 
 Houek et al. v. Eitter, N. S. xiv. 684. 76 Penna. 
 St 280 
 
 Hoiiok V. Wachter, N. S. xi. 61. 34 Md. 265. 
 
 Hough V. Ins. Co., N. S. xii. 324. 36 Md. 398. 
 
 Housee i;. Hammond, N. S. ii. 764. 39 Barb. 89. 
 
 Houserj). The People, N. S.vi.119. 46 Barb.33. 
 
 Houston ii. Dunn, O. S. iv. 445. 13 Texas 476. 
 
 Houston V. Howard, N. S. vi. 488. 39 Verm. 54. 
 
 Houston V. Potts. N. 8. ix. 466. 64 N. C. 33. 
 
 Houston V. Saflfee. N. S. vi. 380. 46 N. H. 506. 
 
 Houston V. The State, N. S. viii. 311. 38 Geo. 195. 
 
 Housum V. Eogers, N. S. i. 627. 40 Penna. St. 
 190. 
 
 Hovey v. Smith, N. S, xi. 594. 22 Mich. 170. 
 
 Howard, Exc'r v. Gibbens, O. S. v. 125. 6 Ohio 
 St. 680. ■ 
 
 Howard v. Harris, N. S. iv. 320. 8 Allen 297. 
 
 Howard v. Jones & Starke, N. S. xiii. 457. 50 
 Ala. 67. 
 
 Howard v. Norton, N. S. xii. 656,667. 65 Barb. 
 161. 
 
 Howe 11. Batchelder, N. S. ix. 719. 49 N. H. 204. 
 
TABLE OF ABSTEAOT CASES. 
 
 1055 
 
 Howe <'. Bnffalo, N, Y. & Erie E. E., N. S. ii. 
 
 440. 3S Barb. 124. 
 Howe I'. Deiiel (Deuel), N. S. v. 124. 34 Barb. 604. 
 Howe V. Newmarcli, N. S. vi. 381. 12 Allen 49. 
 Howe V. Potter ct al., N. S. xi. 459. 61 Barb. 35B. 
 Howe V. Stewart. N. S. vil. 638. 40 Verm. 145. 
 Howell 1'. Biddlecom, N. B. xi. 724. 62 Barb. 131. 
 Howell r. Gordon. N, S. ix. 616. 40 Ueo. 302. 
 Howell V. Howell, N. S. iii. 37S. 15 Wis. 5ft. 
 Howland v. Edmonds, N. S. ii. 318. 10 E. P. 
 
 SmitluN". Y.)307. 
 Howlet )'. Bruck et al., O. S. v. 125. 5 Ohio St. 
 
 234. 
 Howiey v. Whipple, N. S. ix. 614. 48 N. H. 487. 
 Hoxie r. Pacific Mutual Ins. Co.. N. S. iii. 507. 
 
 7 Allen 211. 
 Hoy V. Bramhall, N. S. viii. 124. 4 C. E. Green 
 
 74, -563. 
 Hoy r. Smith, \. S, vii. 670. 49 Barb. 360. 
 Hoyle V. The P. & M. E. R. Co., N. S. vii. 762. 
 
 51 Barb. 45. 
 Hoyt V. White, N. S. v. 700. 46 N. H. 45. 
 Hubbard v. N. Y. Harlem B, E. Co., N. S. i. 633. 
 
 36 Barb. 286. 
 Hubbard v. Hubbard, N. S. vi. 566. 12 Allen 
 • 686. 
 Hubbard t'. Johnson, N. S, xii. 126. 9 Kans. 
 
 632. 
 Hubbard v. Winsor, N. S. vi. 320. 15 Mich. 146. 
 Hubbell V. Warren, N. S. iv. 186. 8 Allen 173, 
 Huber v. Reily, N. 8. vii. 57. 63 Penna. St. 112. 
 Huckenstlne's Appeal, N. S. xii. 405. 70 Penna. 
 
 St. 102. 
 Hudson V. Denill ^Demill), N. S. vi. 319. 16 
 
 Mich. 164. 
 Hudson V. Kline, O. S. iii. 53. 9 Grat. 379. 
 Hudson 1). Nut«, N. S. xii. 736. 45 Verm. 66. 
 Hudson Canal Co. v. Pennsylvania Coal Co., 
 
 N. S. ix. 192. 8 Wall. 276. 
 Huelsenkamp v. Citizens' R. W. Co., N. S. iii. 
 
 633. 34 Mo. 45. 
 Hueston v. The Eaton & Hamilton E. C, O. S. 
 
 iv. 636. 4 Ohio St. 685. 
 Huff V. Cole, N. S. xiv. B2. 45 Ind. 300. 
 Huff V. McCauley, N. S. vii. 63. 53 Penna. St. 
 
 206. 
 Huff V. Richardson, O. S. i. 123. 19 Penna. St. 
 
 388 
 Hughes V. ElUs, O. S. iii. 699. 24 L. J. Ch. 391. 
 Hughei! V. Wameutta Mills, N. S. vi. 58. 11 
 
 Allen 201, 
 Hughes V. United States, N. S. vi. 443, 635. 4 
 
 Wall. 232. 
 Hugus V. Koblnson, O. S. ii. 181. 24 Penna. 
 
 St 9 
 Hnlbe'rt v. Carver, N. S. ii. 62. 37 Barb. 62. 
 Hulett V. Swift, N. S. iv. 125, 167. 42 Barb. 230. 
 Hulettti.Wipple,N.S. X.349. 58 Barb. 224. 
 Hullman v. Honkomp, O. S. iv. 697. 5 Ohio 
 
 St 237 
 Humastbn v. Tel. Co., N. S. xiv. 119. 20 WaU. 
 
 20, 
 Hume V. Beales, Exc, N. S. xiii. 329, 336. 17 
 
 Wall. 336. 
 Hummer v. Patterson, 0. S. i. 697. 3 G. Greene 
 
 42. 
 Hummer v. State of Iowa, O. S. i. 697. 
 Humphreys v. County of Armstrong, N. S. vm. 
 
 62. 56 Penna. St. 204. 
 Humphries v. Parker, N. S. vi. 184. 62 Me. 602. 
 HuntV Ambruster, N. S. v. 61. 2 C. E. Green 
 
 208 
 Hunt V. Bailey, N. S. vi. 252. 39 Mo. 257. 
 Hunt V. Columbian Ins. Co., N. S. vm. 183. 55 
 
 Hunt V. Gaslight Co., N. S. iv. 187. 8 Allen 169. 
 HuSt l.nSweTi, N. S. xii. 592. 599. 52 N. H. 162. 
 Hunt t;. Lathrop, N. S. ii. 382. 7 R.I. 58. 
 Hunt V. LoweU Gas Light Co., N. S. iv. 189. 8 
 
 Allen 169 
 Hunt V. Ma'ybee, O. S. 1. 181. 3 Selden (N. Y.) 
 
 Hunt V. McClanahan, N. S. x. 193. 1 Heiskell 
 
 503 
 Hunt V. Town of WInfleld, N. S. xiv. 705. 36 
 
 Wis. 154. 
 
 Hunter's Appeal, N. S. i. 628. 40 Penna. St. 
 
 194. 
 Hunter v. Lanning et al, N. S. xiv. 402. 76 
 
 Penna. St. 25. 
 Huntingdon i'. Whaley, N. S. i. 244. 29 Conn. 
 
 391. 
 Huntington v. Bardwell, N. S. vi. 316. 46 N. 51. 
 
 4U2. 
 Huntington v. Wellington, N. S. iii. 182. 12 
 
 Mich. 10. 
 Hurd V. Cone, N. S. iii. 632. 32 111. 45. 
 Hurley v. Walton, N. S.-xiv. 59. 63 111. 260. 
 Hursh V. North, Chase & North, N. S. i. 695. 
 
 40 Penna. St. 241. 
 Hurst (Hunt) v. Sackett, N. S. xiv. 262. 31 
 
 Mich. 18. 
 Huskins v. Tate, 0. S. iv. 444. 25 Penna. St. 
 
 249. 
 Hus,Bey v. Winslow, N. S. xi. 629. 69 Me. 170. 
 Huston V, Cone, N. S. xiii. 655. 24 Ohio St. 
 
 11. 
 Huston V. Young, 0. S. i. 188. 33 .Maine 85. 
 Hutchins v. Gerrish, N. S. xii. 661. 63 N. H. 
 
 205. 
 Hutchins v. Kimmel, N. S. xiv. 252, 255, 257. 
 
 31 Mich. 126. 
 Hutchinson v. Market Bank, N. S. vii. 184, 48 
 
 Barb. 307. 
 Hutchinson v. Merchants' & Mec. Bank of 
 
 Wheeling, N. S. ii. 188. 41 Penna. St. 42. 
 Hutton V. Arnett, N. S. ix. 711, 775, 776. 51 111, 
 
 198 
 Hyatt V. Adam.'i, N. S. vii. 191. 16 Mich. 180. 
 Hyatt V. Wait, N. S. ii. 60. 37 Barb. 29. 
 Hvde ». Nelson, N. S. ii. 572. 11 Mich. 353. 
 Hvland v. Sherman, O. S. v. 311. 2 E. D. Smith 
 
 234. 
 
 Ide V. Fassett, N. S. xii. 730. 45 Verm. 68. 
 lU. Cent. E. E. Co. ». Read, N. S. vi. 118, 125. 
 
 37 111. 484. 
 Illinois Cent. E. R. Co. v. Nunn, N. S. ix. 644. 
 
 61 111. 78. 
 Imp. Co. V. Lyons, N. S. xii. 195. 30 Wis. 61. 
 Imperial Fire Ins. Co. v. Murray, N. S. xiii. 
 
 893. 73 Penna. St. 13. 
 Imp. G. Light Co. v. Lond. G. Light Co., 0. S. 
 
 ill. 128. 18 Jur. 497. 
 Inches v. Dickinson, N. S. i. 124. 2 Allen 71. 
 Ind. Pres. Church v. Proctor, N. S. xiv. 683. 66 
 
 111. 11. 
 I. P. & C. E. E. Co. V. Allen, N. S. ix. 442. 31 
 
 Ind. 394. 
 Indianapolis R. E. Co. v. MoKinley, N. S. x. 
 
 748. 33 Ind. 274. 
 I. & N. Cent'l Railroad Co. v. Farrell, N. S. ix. 
 
 454. 31 Ind. 408. 
 IngersoU v. Howard, N. S. x. 193. 1 Heiskell 
 
 247. 
 IngersoU v. IngersoU, N. S. V. 188. 49 Penlia. 
 
 St. 249. 
 IngersoU v. MUler, N. S. vl. 443. 47 Barb. 47. 
 Inhabitants of Concord v. Delaney, N. S. x. 
 
 664. 58 Me. 309. 
 Inhabitants of GreenvUle r. Seymour, N. S. xi. 
 
 266. 7 C. E. Green 468, 
 Inhabitants of MUford v. Holbrook, N. S. iv. 
 
 766. 9 Allen- 17. 
 Inhabitants of Plan No. 4 v. HaU, N. S. xiii. 
 
 254. 61 Me. 617. 
 Inhabitants of South Berwick v. Huntress, N. 
 
 S. vi.247. 63 Me. 89. 
 Inhabitants of Stow d. Sawyer, N. S. i. 6(58. 3 
 
 Allen 515. ' 
 
 In re Falding's Trust, 0. S. vii. 568. 28 L. J. 
 
 Ch. 217. 
 In re Morrison, N. S. xiii. 586. 
 In re Sale of Infants' Lands, N. S. x. 278. 6 C. 
 
 E. Green. 92. 
 Institute v. Greenwood, N. S. iii. 190. 40 Barb. 
 
 72. 
 Institution for Savings v. Fairhaven Bank, N. 
 
 S. iv. 511. 9 Allen 175. 
 Insurance Co. v. Aldrich, N. S. iii. 570. 12 E. 
 
 P. Smith (N. Y.) 92. 
 
1056 
 
 TABLE OF ABSTRACT CASES. 
 
 Insurance Co. v. Allen, N. S. il. 697. 7 Cooley 
 
 601. 
 Ins. Co. u. Baring, N. S. xiv. 191. 20 Wall. 
 
 159. 
 Ins. Co. V. Bedee, 0. S. 1, 180. 3 Selden (N. Y.) 
 
 364. 
 Ins. Co. V. Beekmann, N. S. x. 197. 47 Mo. 93. 
 Ins. Co. D. Berger, N. S. U. 605. 42 Penna. St. 
 
 285. 
 Ins. Co. V. Berry, N. S. xi. 60. 8 Kans. 169. 
 Ins. Co. V. Bowden, N. .S. x. 68. 57 Me. 286. 
 Ins. Co. V. Boyden. N. S. v. 127. 9 Allen 123. 
 Ins. Co. V. Brock, N. S. vlii. 313. 57 Penna. St. 
 
 74. 
 Ins. Co. D. Brown, N. S. ii. 671. 11 Mich. 266. 
 Ins. Co. V. Charles, N. S. x. 750. 4? Mo. 462. 
 Ins. Co. V. Chase, 0. S. iii. 444. 1 E. D. Smith 
 
 116. 
 Ins. Co. V. Chase, N. S. vii. 122. 6 Wall. 509. 
 Ins. Co. V. Clev., Col. & Cin. E. R., N. S. iii. 443. 
 
 41 Barb. 9. 
 Ins. Co. V. CuUom, N. S. xlii. 54. 
 Ins. Co. V. Davison, N. S. ix. 449. SO Md. 91. 
 Ins. Co. V. GUbert, N. S. xiii. 460. 27 Mieh. 
 
 429. 
 Ins. Co. I). Hamilton, N. S. xii. 192. 14 Wall. 
 
 604. 
 Ins. Co. V. Harvey, N. S. iv. 608. 45 N. H. 292. 
 Ins. Co. V. Howe, N. S. ii. 564. 7 Bosw. 450. 
 Ins. Co. V. Ice Co., N. S. xii. 58. 36 Md. 102. 
 Ins. Co. V. Mahone, N. S. xiv. 625. 21 Wall. 
 
 152. 
 Ins. Co. V. Masonheimer, N. S. xiv. 623. 76 
 
 Penna. St. 138. 
 Ins; Co. V. Moore, xiv. 701. 55 N. H. 48. 
 Ins. Co. V. Morse, N. S. xiv. 316. 20 Wall. 445. 
 Ins. Co. V. Murray, N. S. xiii. 393. 73 Penna. 
 
 St. 13. 
 Ins. Co. V. Pooley, 0. S. vii. 509. 28 L. J. Ch. 
 
 119. 
 Ins. Co. V. Riker, N. S. ii. 127. 10 Cooley 279. 
 Ins. Co. 11. Sennett, N. S. ii. 311. 37 Penna. 
 
 St. 205. 
 Ins. Co. V. Sherlock, N. S. xiv. 684. 25 Ohio St. 
 
 60. 
 Ins. Co. V. Tardy. N. S. xiii. 393. 
 Ins. Co. V. Throop, N. S. xi. 462. 22 Mich. 
 
 146. 
 Ins. Co. V. Tincher, N. S, iii. 312. 80 111. 399. 
 Ins. Co. V. Tweed, N. S. viii. 442. 7 Wall. 44. 
 Ins Co. V. Wilson, N. S. vi. 128. 7 Tiffany (N. 
 
 Y) 276. 
 Ins. Co. of Penna. v, Phcenix Ins. Co., N. S. xii. 
 
 788. 71 Penna. St. 31. 
 Ins. Co. V. Webster, N. S. vii. 571. 6 WaU. 
 
 129: 
 Ins. Co. V. Webster, N. S. viii. 757. 59 Penna. 
 
 St. 227. 
 Ins. Co., Matter of the Excelsior, N. S. ii. 633. 
 
 38 Barb. 297. 
 Iron-clad Atlanta, The, N. S. v. 639. 3 Wall. 
 
 426. 
 Irons V. WoodflU, N. S. x. 64. 32 Ind. 40. 
 Iron-Works v. Old Col. & Fall River R: R., N. 
 
 S. ii. 699. 5 Allen 221. 
 Irvine 1J. Barrett, 0. S. ii. 447. 
 Irvine v. Irvine, N. S. ix. 678, 579. 9 Wall. 
 
 617. 
 Irving Ba-nk v. Wetherald, N. S. i. 241. 34 
 
 Barb. 323. 
 Irwin V. Conklin, N. S. i. 509. 36 Barb. 64. 
 Isham V. Ketchum, N. S. vi. 125. 46 Barb. 43. 
 Israel v. Israel, N. S. ix. 328. 30 Md. 120. 
 Ivory V. Bank of the State of Mo., N. S. v. 442. 
 
 36 Mo. 475. 
 
 J, M. & I. E. R. Co. ft Underhill, N. S. xiv. 
 
 689. 48 Ind. 389. 
 Jaccard v. Anderson, N. S. vi. 57. 37 Mo. 91. 
 Jack V. Hudnall, N. S. xiv. 760. 26 Ohio St. 
 
 266. 
 Jackson v. Clymer, N. S. 11. 636. 43 Penna. St. 
 
 79. 
 Jackson v. Hosmer, N. S. v. 249. 14 Mich. 83. 
 Jackson v. Lodge, N. S. viii. 697. 36 Cal, 28. 
 
 Jackson v. People, N. S. i. 185. 5 Cooley 111. 
 Jackson v. Smith, N. S. iii. 574. 46 Penna. St, 
 
 69. 
 Jackson's Appeal, Washington, O, S. ii. 446. 2 
 
 Grant 407. 
 Jackson's Exr's v. Lloyd, N. S. iii. 309. 44 
 
 Penna. St. 82. 
 Jacobs V. Duke, O. S. iii. 443. 1 E. D. Smith (N. 
 
 Y.) 271. 
 Jacobs D Knapp, N, S. xi. 664. 50 N. H. 71. 
 Jacobs V. Richards, O. S. iii. 126. 23 L, J. 6!'>7, 
 Jamaica Pond Aqueduct Corporation v. Chan- 
 dler, N. S. v. 186. 9 Allen 169. 
 James v. Aiken, N. S. xiv. 760. 47 Verm. 23. 
 James v. Brown, N. S. ii. 694. 7 Cooley 25. - 
 James v. Isaac, O. S. i. 308. 20 L. T. 68. 
 James (Haines) v. Pohlman, N. S, xiv. 316. W 
 
 C. E. Green 179. 
 James, Executor v. Taylor, N. S. v. 126. 43 
 
 Barb. 530. 
 Jameson v. Androscoggin E. E. Co., N. S. vi. 
 
 190. 62 Me. 412. 
 Jamison v. Graham. N, S. xii. 191. 57 HI. 94. 
 Janvrin v. Fogg, N. S. xi. 26», 334. 49 N. H, 
 
 340. 
 Janvrin v. Town of Exeter, N, S. viii. 570. 48 
 
 N. H. 83. 
 Jaqua v. Montgomery, N. S. x. 662. 33 Ind, 
 
 Jaquish v. Town of Ithaca, N. S. xiv. 319. 3& 
 
 Wis. 108. 
 Jarman v. Wisevall, N. S. xiii. 331. 9 C. E, 
 
 Green 68, 267. 
 Java, The, N. S. xii. 118. 14 Wall. 189. 
 Jay V. East Livermore, N. S. ix. 197. 56 Me, 
 
 107. 
 Jay V. Richardson, N. S. Iii. 69(2. 30 Beav. 663. 
 Jean v. Spurrier, N. S. xi. 462. 36 Md. 110. 
 Jefrer.sonville, &c., E. E. Co. v. Tull, N. S. xii. 
 
 663. 37 Ind. 341. 
 Jeffries v. Lawson. N. S. vl. 608. 3& Mi. 791. 
 J. G. & H. G., N. S. X. 476. 33 Md. 401. 
 Jenkins v. Bentham, 0. S. iii. 639. 24 L. J. C. P. 
 
 121. 
 Jenkins, Ex parte, 0. S. ii. 700. 2 Wall., Jr. 521. 
 Jenkins v. McConico, O. S. iv. 250. 26 Ala. 
 
 213. 
 Jenkins v. Nat. Vii. Bank of Bowdoinham, N, 
 
 S. X. 598. 68 Me. 275. 
 Jenkins v. Stetson, N. S. v. 182. 9 Allen 128. 
 Jenness v. Wendell, N. S. xii. 67. 51 N, H. 63, 
 Jennings v. Jennings, N. 8. i. 697. 2 Beaslev 38. 
 Jermain v. Pattison. N. S. vi. 118. 46 Barb.' 9. ' 
 Jeromes. Bigelow, N. S. xiv. 581. 66 111. 462. 
 Jewell V. The Comm'th, 0. S. ii. 182, 183. 22 
 
 Penna. St. 94. 
 Jewett V. Crane, N. S. i. 378. 35 Barb. 208. 
 Jewett V. Davis, N. S. v. 318, 320. 10 Allesn 68, 
 Jochumsen v. Suffolk S. Bank, N. S. 1,501. S 
 
 Allen 87. 
 Johannes Christoph, O. S. iii. 608. 19 Jur. 
 
 192. 
 John', The, O. S. i. 48. STlob. Ad. Cas. 170. 
 Johnson, The, N. S. ix. 441. 9 Wall. 146. 
 Johnson v. Bennett. N. S. iii. 123. 39 Bart. 237, 
 Johnson v. Berkshire Ins. Co., If. S, ii. 379. 4 
 
 AUen 388. 
 Johnson v. Brown, N. S. x. 71. 67 Barb. 118. 
 Johnson v. Crane, N. S. iii. 254. 40 Barb. 78. 
 Johnson v, Parley, N. S. v. 699. 45 N. H. 605. 
 Johnson v Ferris, N. S. ix. 715. 49 N. H. 66. 
 Johnson v. Prisbie, N. S. vi. 631. 16 Mich. 286, 
 Johnson v. Frisbie, N. S. viii. 756. 29 Md. 76. 
 Johnson v. Gallivan, N. S. xii. 596, 52 N. H, 
 
 143. 
 .lohnson v. Hays, 0. S. iv. 689. 5 Ohio St. 101. 
 Johnson v. Howard and Towm of Thetford, N. 
 
 S. viii. 638. 41 Verm. 122. 
 Johnson (Case) v. IngersoU, N. S. x. 473. 7 
 
 Kans. 367. 
 Johnson v. Jenkins, N. S. ii. 120. 10 E. P, 
 
 Smith (N. Y.) 252. 
 Johnson v. Johnson, N. S. xiv. 396. 40 Md. 
 
 189. 
 Johnson i'. Jones, N. S. xii. 467. 8 C. E. Green 
 
 216. 
 
TABLE OF ABSTRACT CASES. 
 
 1057 
 
 Johnson v. Laughlin, N. S. x. 473. 7 Kaus. 869. 
 Johuson V. Moutgoniery, N. S. ix. 716. 51 111. 
 
 185. 
 Johnson v. Muzzy, N. S. ix. 580. 42 Verm. 708. 
 Johnson v. Muzzy, N. S. xili. 55. 45 Venn. 419. 
 Johnson v. Newton, O. S. vi. 58. 11 Hare 160. 
 Johnson v. EUey, O. S. ii. 380. IS Geo. 97. 
 Johnson v. Scott, N. S. lii, eS4. S4 Mo. 129. 
 Johnson v. Smith. O. S. i. 570. 21 Conn. 627. 
 Johnson v. Tillson, N. S. xiv. 59. 36 Iowa 89. 
 Johnson v. Town of Newfane, N. S. vii. 635. 40 
 
 Verm. 9. 
 Johnson v. Zink. N. S. viil. 440. 52 Barb. 396. 
 Johnson's Administrators v. Hedrick, N. S. x. 
 
 670. SSInd. 129. 
 Johnson & Sweeny v. Mathews, N. S. viii. 440. 
 
 5 Kans. 118. 
 Johnston v. Cowan, N. S. viii. 755. 59 Penna. 
 
 St. 275. 
 Johnston t'. Glenn and Others, N, S. xiv. 308. 40 
 
 Md. 200. 
 Johnston v. Whittemore, N. S. xiii. 389. 27 
 
 Mich. 463. 
 Joliet V. Verley, N. S. v. 445. 35 111. 58. 
 JoUey v. Walker's Adm'rs, O. S. i v. 190. 26 Ala. 
 
 690. 
 Jones V. Adler, N. S. xi. 53. 31 Md. 440. 
 Jones V. Bach, N. S. vii. 119. 48 Barb. 568. 
 Jones I'. Blacklidge, N. S. xi. 773. 9 Kans. 562. 
 Jones V. City of Petaluma, N. S. viii. 697. 36 
 
 Cal.230. 
 Jones V. Cons. Inv. & Assurance Co., O. S. vii. 
 
 506. 28 L. J. Ch. 66. 
 Jones V. Crosthwaite, N. S. iv. 447. 17 Iowa 
 
 393 
 Jones V. Hodgkins, N. S. xiii. 262. 61 Me. 480. 
 Jones V. Inhabitants of Andover, N. S. v. 382. 
 
 10 AUen 18. 
 Jones V. Jones, N. S. xii. 192. 36 Md. 447, 459. 
 Jones & Jones v. The State, O. S. iv. 444. 13 
 
 Texas 168. 
 Jones V. Pepercome, O. S. vii. 509. 28 L. J. Ch. 
 
 158. 
 Jones 11. Scott, N. S. xii. 531. 10 Kans. 33. 
 Jones V. Skinner, N. S. xiii. 126. 61 Me. 25. 
 Jones V. The Norwich and New York Trans- 
 portation Co., N. S. vii. 634. 60 Barb. 193. 
 Jones V. The Quinnipiack Bank, N. S. i. 314. 
 
 29 Conn. 25. 
 Jones V. Underwood, N. S. i. 378. 35 Barb. 
 
 211. 
 Jordan v. Hanson, N. S. x. 201. 49 N. H. 199. 
 Jordan v. Keene, N. S. vii. 439. 54 Me. 417. 
 Jordan, Village of v. Otis, N. S. ii. 123. 37 
 
 Barb. 50. 
 Joslin V. Cowee, N. S. x. 751. 60 Barb. 48. 
 Joslyn V. Eastman, N. S. xiii. 783. 46 Verm. 
 
 258. 
 Joslyn V. Wyman, N. S. ii. 510. 5 Allen 62. 
 Judd V. Sampson & Co., 0. S. iv. 446. 13 Texas 
 
 19. 
 Judge of Probate v. Simonds, N. S. vi. 318. 46 
 
 N. H. 363. 
 Judson ;;. Goodwin (Gookwin), N. S. v. 442. 37 
 
 111. 286. 
 Judson V. Western E. E. Co., N. S. lii. 316. 6 
 
 Allen 486. 
 Judson V. Western E. E. Co., N. S. ii. 381. 4 
 
 Allen 520. 
 Judo-e of Probate v. Webster, N. S. vi. 318. 46 
 
 N. H. 518. 
 Juliand v. Eathbone, N. S. ii. 765. 39 Barb. 97. 
 Justices, The v. Murray, N. S. ix. 444. 9 Wall. 
 274. 
 
 Kaehler v. Diddle, N. S. xii. 464. 32 Wis. 19. 
 Kahley, In re. N. S. xiii. 193. (Wis.) 3 Bis. 169. 
 Kamend v. Huelbig, N. S. xii. 61. 8 C. E. 
 
 Green 78. „ „ ,., ,„„ 
 
 Kane v. The Eock E. Canal Co., N. S. ill. 509. 
 
 15 Wis. 179. ^ 
 
 Kansas Ins. Co. v. Berry, N. S. xi. 60. 8 Kans. 
 
 159 
 Kan.«as Pacific Eaihvay Co. v. Butts, N. S. x. 
 
 668. 7 Kans. 308. 
 67 
 
 K. P. R. W. Co. !). MonteU (Montelle) N. S. xii. 
 
 533. 10 Kans. 119. 
 K. P. R. W. Co. V. Pointer, N. S. xii. 63. 9 
 
 Kans. 620. 
 Karker v. Haverly, N. S. vii. 639. 60 Barb. 79. 
 Karns, Estate of, 0. S. i. 122. 
 ICater v. Steiuruck's Adm'r, N. S. i. 760. 40 
 
 Penna. St. 501. 
 Kauffelt V. Moderwell, O. S. i. 634. 21 Penna. 
 
 St. 222. 
 Kavanagh v. Beckwith, N. S. v. 503. 44 Barb. 
 
 192. 
 Kavanagh v. City of Brooklyn, N. S. ii. 630. 
 
 38 Barb. 232. 
 Kayser v. Sichel, N. S. i. 64. N. Y, 34 Barb. 84. 
 Kearns v. Cordwainers' Co., O. S. viii. 2J0. o 
 
 Jur. N. S. 1126. 28 L. J. C. P. 285. 
 Keating et aZ. v, Orne et al., N. S. xiv. 755. 77 
 
 Penna. St. 89. 
 Keator v. Dimmick", N. S. vi. 121. 46 Barb. 168. 
 Keefe v. Vogle, N. S. xiv. 53. 36 Iowa 87. 
 Keeney v. Grand Trunk E. Way Co., N. S. x. 
 
 662, 663. 59 Barb. 104. 
 Kehr v. Smith, N. S. xiv. 123. 20 Wall. 14. 
 Keiper v. Helfrioker, N. S. ii. 505. 42 Penna. 
 
 St. 325. 
 Keith V. Inhabitants of Eastou, N. S. i. 382. 2 
 
 Allen 5.52. 
 Keith V. Sturges, N. S. ix. 775. 51 111. 142. 
 KeUenberger v. Boyer, N. S. xii. 663. 37 Ind. 
 
 188. 
 Keller v. Chapman, N. S. viii. 185. 34 Cal. 
 Keller v. Commth., O. S. i. 248. 
 Kelley v. Davis, N. S. xi. 61. 49 N. H. 187. 
 Kelley v. Dresser, N. S. vi. 63. 11 Allen 31. 
 Kellogg V. Smith, N. S. iii. 499. 12 E. P. Smith 
 
 18. 
 Kellum V. Smith, N. S. ^. 533. 65 Penna. St. 
 
 86. 
 Kelly V. Drew, N. S. vi, 318. 12 Allen 107. 
 Kelly V. Drury, N. S. v. 127. 9 Allen 27. 
 Kelly V. Ellison, N. S. iii. 126. 
 Kelly V. Owen-ei aZ., N. S. viii. 444. 7 Wall. 496, 
 Kelsen (Kelsea) v. Fletcher, N. S. ix. 514. 48 
 
 N. H. 282. 
 Kelsey v. Murphy, 0. S. vii. 189. 30 Penna. St. 
 
 340. 
 Kelton, Administrator v. Hill. N. S. x. 536. 68 
 
 Me. 114. 
 Kelty V. Bank. N. S. viii. 438. 52 Barb. 328. 
 Kelfy V. Second National Bank of Erie, N. S. 
 
 viii. 438. 62 Barb. 328. 
 Kendall v. Brownson, N. S. vii. 316. 47 N. H. 
 
 186. 
 Kendall v. KendaU, N. S. vi. 382. 12 Allen 92. 
 Kendall v. May, N. S. v. 319. 10 Allen 59. 
 Kendept v. Korner, 0. S. lii. 47. 
 Kenistons v. Sceva, N. S. xiv. 319. 54 N. H. 24. 
 Kennebec Railroad v. Portland Railroad, N. 
 
 S. xii. 121. 14 Wall. 23. 
 Kennedy v. Doyle, N. S. v. 509, 511. > 10 Allen 
 
 161. 
 Kennedy v. Duncklee, O. S. lii. 58. 1 Gray 65. 
 Kennedy v. House, N. S. ii. 188. 41 Penna. St. 
 
 49. 
 Kennedy v. Keating, N. S, iii. 633. 34 Mo. 25. 
 Kennedy v. The Erie & W. P. E. Co., O. S. iv. 
 
 440. 25 Penna. St. 224. 
 Kennedy's Ex'rs v. Eoe(c)hon's Heirs, O. S. iv. 
 
 188. 26 Ala. 384. 
 Kennett v. Chambers, O. S. i. 187. 14 How. 38. 
 Kenney v. Altvater, N. S. xiv. 758. 77 Penna. 
 
 St. 34. 
 Kent V. Bornstein, N. S. vi. 503. 12 Allen 842. 
 Kent V. Hutchins, N. S. xi. 271. 50 N. H. 92. 
 Kent v. Watson, N. S. v. 697. 46 N. H, 148. 
 Kent V. Whitney, N. S. iv. 768. 9 Allen 62. 
 Kenyon v. People, N. S. iii. 569. 12 E. P. Smith 
 
 (N. Y.) 203. 
 Keokuk, The, N. S. ix. 574. 9Wall. 517. 
 Kepner v. The Commonwealth, N. S. i. 564. 40 
 
 Penna. St. 124. 
 Kerr, Matter of Petition, N. S. iv. 124. 42 Barb. 
 
 119. 
 Kessinger v. Kessinger, N. S. xii. 671. 37 Ind. 
 341. 
 
1058 
 
 TABLE OF ABSTRACT CASES. 
 
 Kessler v. Hall, N. S. Ix. 447. 64 N. C. 60. 
 Ketelters v. Wilson, N. S. i. 634. 36 Barb. 298. 
 Kettell V. Alliance Ins. Co., N. S. iii. 186. 10 
 
 Gray 144. 
 Key V. Jetto, O. S. ii. 447. 1 Pitts. 117. 
 Key V. Jones, N. S. xw. 641, 703. 62 Ala. 238. 
 Keyes v. Auditor of P. A. of 111., N. B. iii. 314. 
 
 30 lU. 434. 
 Keyes v. Winter, N. S. vii. 439. 64 Me. 399. 
 Keypoit Steamboat Co. v. Farmers' 'I'rans- 
 portation Co., N. S. vii. 759, 766. 3 C. E. Green 
 13, 511. 
 Keyser v. Sickel, N. S. I. 64. 34 Barb. 84. 
 Keyset (Kayser) & Co. v. Stein (Stern;, N. S. 
 
 viii. 676. 5 Kans. 202. 
 Kidd V. Carson, N. S. x. 474. 33 Md. 37. 
 Kidd V. Conway, N. S. xii. 663. 65 Barb. 168. 
 Kidder v. Blake, N. S. v. 698. 46 N. H. 530. 
 Kidder v. Chamberlin, N. S. vilj. 502. 41 Verm. 
 
 62. 
 Kilmer v. Wilson, N. S. vii. 379. 49 Barb. 86. 
 Kilpatriok v. Penrose Ferry Bridge Co., N. S. 
 
 V. 134. 49 Penna. St. 118. 
 Kimball v. Harman, N. S. xi. 54. 34 Md. 401, 
 
 407. 
 Kimball v. Kimball, N. S. vii. 188. 16 Micb. 
 
 211. 
 Kimball v. Marshall, N. S. iii. 126. 44 N. H. 
 
 465. 
 Kimball v. Mulbem, 0. S. iii. 635. 15 III. 205. 
 Kimball v. Town of Newport, N. S. xiv. 757. 
 
 47 Verm. 38. 
 Kimball, Exec'x v. BiUiugs, N. S. viii. 189. 55 
 
 Me. 147. 
 Kimberly v. Henderson, N. S. viii. 754. 29 Md. 
 
 512. 
 Kimm v. Weiffert, N. S. x. 128. 46 Mo. 632. 
 Kimpton, In the goods of, N. S. iv. 320. 33 L. 
 
 J. N. S. 153. 
 Kinder v. Gillespie, N. S. xiv. 53. 63 111. 88. 
 King V. Aekerman, N. S. iii. 50. 2 Black 408. 
 King V. Baker, O. S. iv. 440. 25 Penna. St. 186. 
 King V. Cleaveland, O. S. vii. 607. 28 h. J. Ch. 
 
 74, 76. 
 King V. Macon & W. R. E. Co., N. S. xi. 720. 
 
 62TBarb. 160. 
 King V. MoEvoy, N. S. i. 689. 4 Allen 110. 
 King V. Morris & Essex R. E. Co., N. S. vii. 
 
 764. 3 C. E. Green 397. 
 King V. Poole, N. S. i. 632. 36 Barb. 242. 
 King V. Beginam, O. S. i. 375. 3 Cox Cr. Cas. 
 
 561. 
 King V. Euckman, N. S. xiii. 63. 9 C. E. Green 
 
 298 556 
 King ti.State. N. S. ix. 511. 40 Geo. 244. 
 King ji.Steiren, N. S. iii. 310. 44 Penna. 99. 
 King V. Stetson, N. S. vi. 186. 11 Allen 407. 
 King V. Storey, N. S. viii. 120. 4 C. E. Green 83. 
 King V. Talbot. N. S. ix. 62. 1 Hand (N. Y.) 76. 
 King V. Whaley, N. S. x. 535, 536, 543. ,59 Barb. 
 . 71. 
 Kingsbury v. Dedham, N. S. vii. 61. 13 Allen 
 
 186. 
 Kingsbury v. Kingsbury, N. S. xiil. 127. 3 Bis. 
 
 60. 
 Kingsbury v. Lyon, N. S. Ix. 444. 64 N. C. 128. 
 Kingsbury v. Moses. N. S. iv. 439. 46 N. H. 222. 
 Kingsbury v. Williams, N. S. viii. 635. 63 Barb. 
 
 142. 
 Kingston Bank v. Ettinge, N. S. ix. 65. 1 Hand 
 
 (N. Y.) 391. 
 Klnmouth v. Brigham, N. S. ii. 698. 5 Allen 
 
 270. 
 Kinner v. Walsh, N. S. ix. 195. 44 Mo. 65. 
 Kinney v. Knoebel, N. S. ix. 716. 61 111. 112. 
 Kinney, Adm'r v. Mettler (Metier), N. S. vii. 
 
 697, 699. 3 C. E. Green 270. 
 Kinsey v. Ford, N. S. ii. 411. 38 Barb. 195. 
 Kirby v. .Tackson, N. S. ix. 574. 42 Venn. 6.52. 
 Kirk V. Hartman, N. S. x. 69, 70. 63 Penna. 
 
 St. 97. 
 Kirkland v. Inhabitants of Whately, N. S. ii. 
 
 380. 4 Allen 462. 
 Kirkpatriok v. Peshine, N. S. xiii. 64. 9 C. E. 
 
 Green 206. 
 Kirtland, Ex parte, N. S. xiii. 461. 49 Ala. 403. 
 
 Kirtland v. Montgomery, 0. S. i. 377. 1 Swan 
 
 452. 
 Kissinger v. Hanselman, N. S. x. 665. 33 Ind. 
 
 80. 
 Kistner v. Sindlinger, N. S. x. 667. 33 Ind. 114. 
 Kitis (Kitts) V. The Ma«sa£Oit Ins, Co., N. S. ix. 
 
 515. 66 Barb. 177. 
 Klapworth v. Dressier, N. S. i. 698. 2 Beasley 
 
 62. 
 Kline v. C. P. E. E. Co., N. S. ix. 327. 37 Cal. 
 
 400. 
 Kline v. Kline, O. S. i. 440. 20 Penna. St. 503. 
 Klingensmith v. Kepler, N. S. xiii. 192. 41 
 
 Ind. 341. 
 Kloepping v. SteUmacher, N. S. x. 351. 6 C. E. 
 
 Green 328. i 
 
 Klumph V. Dunn, N. S. x. 749. 66 Penna. St. 
 
 141. 
 Knaggs V. Mastin, N. S. xi. 774. 9 Kans. 532. 
 Knapp V. Hartung, N. S. xiii. 451. 73 Penna. 
 
 St. 290. 
 Knapp V. McAuley, N. S. vl. 573. 39 Verm. 
 
 275. 
 Knapp V. Railroad, N. S. xiv. 261. 20 Wall. 117. 
 Knapp V. Eeeder, N. S. iii. 67. 11 E. P. Smith 
 
 (N. Y.) 302. 
 Knauss's Appeal, N. S. V. 253. 49 Penna, St. 
 
 419. 
 Knauth v. Barrett, N. S. 1. 62. 34 Barb. 31 
 Knauth v. Bassett, N. S. i. 62. 34 Barb. 31. 
 Kneeland v. Gilman, N. S. Ix. 263. 24 Wis. 39. 
 Knight V. Cambers, 0. S. iii. 639. 24 L. J. C. P. 
 
 121. 
 Knight V. Campbell, N. S. xi. 592. 62 Barb. 16. 
 Knight V. House, N. S. viii. 695. 29 Md. 194. 
 Knoll V. Light et al., N. S. xiv. 586. 76 Penna. 
 
 St 268 
 Kno'wles V. People, N. S. vi. 636, 639. 15 Mich. 
 
 408. 
 Knowles v. Toothaker, N. S. x. 601. 58 Me. 172. 
 Knox V. Flack, O. S. ii. 185. 22 Penna. St. 337. 
 Knox V. ViUege of Yonkers, N. S. iii. 124. 39 
 
 Barb. 266. 
 Kobb (Cobb) v. Taylor, rf. S. ii. 576. 64 N. C. 
 
 193 
 Kocli V. Willi, N. S. xiv. 52. 63 lU. 144. 
 Koehler v. The Black E. F. I. Co., N. S. iii. 55. 
 
 2 Black 716. 
 Kohl (Kahl).D. Love, N. S. xiii. 396. 8 Vroom 
 
 511. 
 Koontz i;. Franklin Co., N. S. xiv. 526. 76 
 
 Penna. St. 154. 
 Kountz V. Kennedy, N. S. x. 193. 63 Penna. St. 
 
 187. 
 Kountze Brothers v. Express Co., N. S. ix. 200. 
 
 8 Wall. 342. 
 Kowing V. Manley et oZ., N. S. x. 129. 67 Barb. 
 
 479. 
 Kraut's Appeal, N. S. xii. 736. 71 Penna. St. 
 
 64. 
 Kreidler v. The State, N. S. xiii. 653. 24 Ohio 
 
 St. 22. 
 Kreig v. Wells, O. S. iii. 442. 1 E. D. Smith 74. 
 Krier's Eoad, N. S. xiii. 397. 73 Penna. St. 
 
 109. 
 Krise v. NeaBon, N. S. x. 797. 66 Penna. St. 
 
 253 
 Kroener v. Colhoun, N. S. vi. 637. 52 Penna. 
 
 St. 24. 
 Krohn v. Oechs, N. S. vi. 714. 48 Barb. 127. 
 Krugh V. Lycoming Fire Ins. Co., N. S. xiv. 767. 
 
 77 Penna. St. 15. 
 Kuhl V. Mayor of Jeraey City, N. S. xii. 190. 8 
 
 C. E. Green. 
 Kuhn V. Stansfield, N. S. viii. 312. 28 Md. 210. 
 Kunnybaoher v. Charles, O. S. i. 634. 
 Kusenbur v. Browne, N. S. ii. 503. 42 Penna. 
 
 St. 173. 
 Kutz's Appeal, N. S. i. 198. 40 Penna. St. 90. 
 
 Lacey v. Maman, N. S. xii. 536. 37 Ind. 168. 
 Laoonia v. Gilman, N. S. xiv. 704. 66 N. H. 
 
 127, 130. 
 La Due i). Detroit & Milwaukee E. E. Co., N. S. 
 
 V.59. ISMich. 3S0. 
 
TABLE OF ABSTRACT CASES. 
 
 1059 
 
 Lady Franklin, The, N. S. ix. 191. 8 Wall. 825. 
 iJidy Pike, The, N. S. xiv. 452. 21 Wall. 1. 
 Lafayette & Ind. E. R. Co. v. Adams, N. S. vi. 
 
 718. 26 Ind. 76. 
 Lafayette <S Indianapolis E. E. Co. v. Pattison, 
 
 N. S. xiii. 2.i3. 41 Ind. 312. 
 Laflin v. Grifaths, Bheriff. N. S. i. 309. 35 Barb. 
 
 58. 
 La FoUet v. Akin, N. S. xii. 406. 36 Ind. 1. 
 Lafone v. Smith, O. S. vii. .508. 28 L. J. Ex. 33. 
 Laird v. Huling, O. S. i. 635. 21 Penna. St. 265. 
 Laithe v. McDonald, N. S. x. 539, 542. 7 Kans. 
 
 254. 
 Lake, In re, N. S. xiii. 193. 3 Bis. 204. 
 Lake v. Milliken, N. S. xiv. 198. 62 ile. 240. 
 Lake's Appeal from Probate, N. S. v. 62. 32 
 
 Conn. 
 Lakin v. Lakin, X. S. i. 57. 2 Allen 45. 
 I-amb V. Klaus, N. S. xii. 199. 30 Wis. 94. 
 Lamb v. Mason, N. S. xii. 403. 45 Verm. 500. 
 Lamb's Appeal, N. S. viii. 635. 58 Penna. St 
 
 142. 
 Lamfort v. Beeman, N. S. i. 238. 34 Barb. 239. 
 Lamphire v. Cowan, N. S. yii. 185. 39 Verm. 420. 
 Lamson v. Patch, N. S. iii. 64. 5 Allen 586. 
 Lamson v. Schutt, N. S. i. 765. 4 Allen 359. 
 Lancaster Co. Bank v. Albright, O. S. 633. 21 
 
 Penna. St. 228. 
 Lancaster Co. Bank v. Gross, N. S. v. 379. 50 
 
 Penna. St. 224. 
 Lance v. Griner, N. S. vii. 56. 53 Penna. St. 
 
 204. 
 Landis v. Eoyer, O. S. viii. 694. 59 Penna. St. 
 
 95. 
 Landman v. Snodgras's, 0. S. iv. 253. 26 Ala. 593. 
 Lane County v. Oregon, K. S. yiii. 251. 7 Wall. 
 
 71. 
 Lang V. Henry, N. S. xiv. 318. 54 N. H. 57. 
 Langabar (Langabier) v. Fairbury, &c., E. E. 
 
 Co., N. S. xiii. 586. 64111.243. 
 Lannan v. Gas Light Co., N. S. x. 799. 5 Hand. 
 
 (N. Y.) 459. 
 Lantz V. Frey, O. S. 1. 119. 14 Penna. St. 201, 
 
 19 Penna. St. 366. 
 Lapeyre v. United States, N. S. xiii. 334. 17 
 
 Wall. 191. 
 Larco v. Clements, N. S. yiii. 699. 36 Cal. 132. 
 Larimer v. Breidenthal, O. S. ii. 121. 22 Penna. 
 
 St. 41. 
 Larimer's Appeal, O. S. ii. 121. 22 Penna. St. 
 
 41. 
 Larke v. Dessieh, 0. S. ii. 510. 
 Larrabel v. Baldwin, N. S. yiii. 503. 35 Cal. 155. 
 Larry v. Sherburne, N. S. i. 57. 2 Allen 34. 
 Lasere v. Eocherean, N. S. xiii. 335. 17 Wall. 
 
 437. 
 Lathiop V. Smalley, N. S. xii. 198. 8 C. E. Green 
 
 192. 
 Laughlin «. Eaton, N. S. vii. 443. 54 Me. 156. 
 Laura. The, N. S. xii. 186. 14 Wall. 336. . 
 Laveroni v. Drury, O. 8. i. 309. 16 Jur. 1024. 
 Law V. Smith, 0. S. i. 695. 4 Porter 56. ' 
 Lawler v. Earle, N. 8. ii. 445. 5 Allen 22. 
 Lawrence i'. Bank of the Eep., N. S. vi. 378. 8 
 
 Tiffany (N. Y.l 320. 
 Lawrence v. Bartlett, N. S. i. 56. 2 Allen 36. 
 Lawrence v. Basset, N. S. ii. 557. 5 Allen 140. 
 Lawrence v. Buck, N. S. xiv. 200. 62 Me. 275. 
 Lawrence v. Chase, N. S. vii. 442. 54 Me. 196. 
 Lawrence v. Cooke, N. S. Ix. 194. 56 Me. 187. 
 Lawrence v. Finch, N. S. v. 58. 2 C. E. Green 
 
 234. 
 Lawrence v. Luhr, N. S. x. 535. 65 Penna. St. 
 
 236. 
 Lawrence v. Maxwell, N. S. xii. 463, 470. 64 
 
 Barb. 102. 
 Lawrence )'. Eokes, N. S. vi. 248, 53 Me. 110. 
 Lawrence v. Eokes, N. S. xiii. 126. 61 Me. 38. 
 Laws V. Eycroft, N. S. ix. 384. 64 N. C. 100. 
 Lawson v. McCaffrey, N. S. iv. 380. 42 Barb. 
 
 630. 
 Lawton v. Campion, 0. S. iii. 124. 23 L. J. Ch. 
 
 505 
 Lazier v. Westcott, N. S. iii. 601. 12 E. P. Smith 
 
 (N. Y.) 146. 
 Lea V. Lea, N. S. Iv. 311. 8 Allen 418. 
 
 Leach v. Francis, N. S. viii. 504; N. S. viii. 511. 
 
 41 Verm. St. 670. 
 League v. State, N. S. xii. 196. 36 Md. 267. 
 Leak v. Commissioners of Eichmond Co., N. 
 
 S. ix. 444. 64 N. C. 132. 
 Leaming v. Wise, N. S. xiii. 394. 73 Penna. St. 
 
 173. 
 Leavitt v. Leavitt, N. S. v. 252. 13 Mich, 452. 
 Leavitt v. Leavitt, N. S. vii. 263. 47 N. H. 329. 
 Lebanon v. Heath, N. S. vii. 315. 47 N. H. 353. 
 Lebeau u. Armitage, N. S. x. 126. 47 Mo. 138. 
 Le Breton v. Peiree. O. S. ix. 737. 2 Allen 8. 
 Leddell's Executor v. Starr & W., N. S. viii. 185. 
 
 4 C. E. Green 1,59. 
 Leddo V. Hughes, O. S. iii. 638. 15 111. 41. 
 Ledger v. Stanton, N. S. iii. 691. 2 Johns & H. 
 
 687. 
 Ledlie v. Vrooman, N. S. iii. 504. 41 Barb. 109. 
 Ledyard ti. Ten Eyck, N. S. i. 669. 36 Barb. 102. 
 Lee V. BoUes, N. S. x. 413. 20 Mich. 46. 
 Lee V. Jones, N. S. iv. 318. C. P., 2 New E. 26. 
 
 (London, 1863.) 
 Lee V. Marsh, N. S. iv. 445. 43 Barb. 102. 
 Lee V. Mason, N. S. ii. 126. 10 Cooley 403. 
 Lee V. Parker, N. S. v. 191. 43 Barb. 611. 
 Lee V. Pile, N. S. xii. 530. 87 Ind. 107. 
 Lee, Ex'r, v. Lee, N. S. iii. 60. 39 Barb. 172. 
 Lee, W. & Co. v. Overstreet, N. S. xi. 395. 44 
 
 Geo. 507. 
 Leech v. Leech, 0. S. i. 249. 21 Penna. St. 67. 
 Leese u. Clark, N. S. viii. 121. 29 Cal. 664. 
 Leese v. Martin, N. S. xiii. 687. 29 L. T., N. S. 
 
 742. 
 Leftwitch v. Lecanu. N. S. vi. 442. 4 Wall. 187. 
 Leggett V. Doremus, N. S. xiv. 326. 10 C. E. 
 
 Green 122. 
 Leggett V. Mut. Life Ins. Co. of N. Y., N. S. xii. 
 
 401, 408. 64 Barb. 23. 
 Leggett V. The Bank of Sing Sing, N. S. ii. 249. 
 
 10 E. P. Smith -(N. Y.) 283. 
 Leiby's Appeal. N. S. v. 69. 49 Penna. St. 182. 
 Leidy v. Messinger, N. S. xii. 734, 71 Penna. 
 
 St. 177. 
 Lenke (Lencke) v. Booth, N. S. x. 743. 47 Mo. 
 
 386. 
 Lennard v. Eobinson, 0. S. iv. 122. 24 L. J. 213, 
 
 275 ' 19 Jur 863 
 I'innbx V. El'dred, N. S. xiii. 125. 65 Barb. 410, 
 
 626. 
 Leominster v. Fitchburg, N. S. iii. 505. 7 Allen 
 
 38. 
 Leonard v. Leonard, N. S. iii. 568. 7 Allen 277. 
 Leonard v. Shirts, N. S. x. 744. 33 Ind. 214. 
 Lerned v. Johns, N. S. iv. 703. 9 Allen 419. 
 Leroux v. Brown, O. S. i. 310. 20 L. T. 68; 16 
 
 Jur. (C. B.) 1021. 
 Lerow v. Wilmarth, N. S. iii. 698. 7 Allen 463. 
 Leroy v. Tatham, O. S. i. 248. 14 Howard 156. 
 Lesley v. Johnston, N. S. iii. 762. 41 Barb. 359. 
 Leslie V. St. Louis, N. S. x. 602. 47 Mo. 474, 
 Lessee of Parrish v. Ferris. N. S. iii. 64. 2 Black 
 
 606. 
 Lester v. Mayor, N. S. viii. 695. 29 Md. 415. 
 Lester v. Palmer, N. S. ii. 62. 4 Allen 146. 
 Lester v. Webb, N, S, iii. 62. 6 Allen 569. 
 Lewey v. Lewey, N. S. iv. 120. 84 Mo. 367. 
 Lewis V. Brehme, N. S. x. 470. 33 Md. 412. 
 Lewis V. Lewis, N. S. iv. 254. 47 Penna, St. 127. 
 Lewis ft Locke, Homer v. Same, N. S. viii. £U1. 
 
 41 Verm. 11. 
 Lewis V. New York Central E. E. Co., N. S. vii. 
 
 511. 49 Barb. 330. 
 Lewis V. Springfleld F. & M. Ins. Co., N. S. iii. 
 
 186. 10 Gray 159. 
 Lexington v. Butler, N. S. xii. 125, 127. 14 Wall. 
 
 282. 
 Lexington & W. C. E. Co. v. Elwell, N. §. iv. 
 
 310. 8 Allen 371. ' 
 
 Libby v. Rosekrans, N. S. ix. 260, 319, 324, 327. 
 
 55 Barb. 202. 
 License Tax Cases. N. S. vii. 123. 5 Wall. 402. 
 Lich (Engel) v. Bernicker, N. S. iii. 633. 34 
 
 Mo. 93. 
 Lick V. Madden. N. S. viii. 701. 36 Cal. 208. 
 Liebenstein v. The City of Newark, N. S, xiii. 
 
 59. 9 C. E. Green 200. 
 
1060 
 
 TABLE OF ABSTRACT OASES. 
 
 Life Ins. Co. v. Charles, N. S. x. 750. 47 Mo. 462. 
 liigat V. The Comm'th, 0. S. i. 120. 19 Penna. 
 
 St. 458. 
 Liggett V. Weed, N. S. x. 600. 7 Kans. 273. 
 Light V. Goddard, N. S. vi. 185. 11 Allen 5. 
 Llmberger v. Westcott, N. S. yil. 608. 49 Barb. 
 
 283. 
 Lincoln v. Chardbourne (Chadbourue), N. S. 
 
 ix. 125. 56 Me. 197. 
 Lincoln v. Claflin a al., N. S. viii. 250. 7 Wall. 
 
 132. 
 Lincoln v. Taunton Man. Co., N. S. v. 125. 9 
 
 Allen 181. 
 Lincoln v. The Assessors of the Town of Barton, 
 
 N. S. V. 441. 44 Barb. 148. 
 Lincoln v. Wright, 0. 8. ii. 571, 572. 23 Penna. 
 
 St. 76. 
 Linden v. Linden. N. S. 509. 36 Barb. 61. 
 Lindsey v. Danville, N. S. xii. 730. 45 Venn, 68. 
 Lindsley v. Malone, 0. S. ii. 509. 23 Penna. St. 
 
 24. 
 Lingham v. Eggleston, N. S. xiii. 462. 27 Mich. 
 
 324. 
 Linton v. Hart, O. S. iv. 441. 25 Penna. St. 193. 
 Lippincott's Bxc. v. Lippincott, N. S. viii. 127. 
 
 4 C. E. Green 121. 
 Lisbon, Town of v. Holton, N. S. xi. 719. 51 N. 
 
 H. 209. 
 Litchfield v. McComber, N. S. It. 319. 42 Barb. 
 
 288. 
 Little V. Snedicor, N.. S. xiv. 641, 709. 52 'Ala. 
 
 167. 
 Little, Assignee v. Alexander, N. S. xiv. 519. 21 
 
 Wall. 500. 
 Little Schuvl. Nav. Co. v. Richards, N. S. viii. 
 
 315. 67 Penna. St. 142. 
 Livingstone v. Painter, Adm'x, N. S.v. 121,190. 
 
 43 Barb. 270. 
 Lloyd V. Quinby, O. S. iv. 699. 5 Ohio St. 262. 
 Loan and Trust Co. v. Insurance Co., N. S. vii. 
 
 763. 51 Barb. 33. 
 Lobdell V. Hayes, N. S. ii. 63. 4 Allen 187. 
 Lochlibo, The, O. S. i. 50. 3 Rob. Ad. Cas. 310. 
 Locke V. Daugherty, N. S. ii. 634. 43 Penna. 
 
 St. 88. 
 Locke V. New Orleans, N. S. vi. 437. 4 Wall. 
 
 172. 
 Locke's Executor v. Palmer, O. S. iv. 251. 26 
 
 Ala. 312. 
 Lockhart et al. v. Eonsall et al., N. S. xiv. 759. 
 
 77 Penna. St. 53. 
 Lockwood V. Lashell, 0. S. i. 125. 19 Penna. 
 
 St. 344. 
 Loeb et al. v. Mathis, N. S. xii. 665, 670. 37 Ind. 
 
 306. 
 Loesehigh v. Bridge, N. S. iv. 185. 42 Barb. 171. 
 Logue V. Com., N. S. i. 60. 38 Penna. St. 2C5. 
 Loraax v. Ripley, O. S. iii. 510. 19 Jur. 272. 
 Lombardo v. Case. N. S. v. 564. 45 Barb. 95. 
 Long V. Heinrich, N. S. x. 192. 46 Mo, 603. 
 Long V. Moler, 0, S. iv. 767, 5 Ohio St, 271. ■ 
 Long V. Ehawn, N. S. xiv. 116. 75 Penna. St. 
 
 128. 
 Long D. Woodman, N. S. x. 601. 58 Me. 49. 
 Longwell v. Bentley, O. S. ii. 671. 2 Phila. 157; 
 
 23 Penna. St. 99. 
 Loomis 1). Loomls. N. S. x. 744. 60 Barb. 22. 
 Lord V. Davison. N. S. i. 505. 3 Allen 131. 
 Lord V. Ocean Bank, O, S. i. 436, 441. 20 Penna. 
 
 St. 384. 
 Lord V. .Parker, N. S. i. 505. 3 Allen 127. 
 Loring v. Mulcahy, N. S. i. 568. 3 Allen 575. 
 Loring v. Warburton, O. S. vii. 508. 28 L. J., Q, 
 
 B. 31. 
 Lormore v. Campbell, N. S. xi. 60. 60 Barb. 62. 
 Loss V. Obry. N. S. xi. 57. 7 0. E. Green 62. 
 Lothrop V. Greenfield Stock and M. Fire Ins. 
 • Co., N. S. i. 126. 2 Allen 82. 
 Loveland (Gillam) v. Huber, 0. S. i. 698. 4 G. 
 
 Greene 155. 
 Lovemore v. Campbell, N. S. x. 744. 60 Barb. 
 
 62. 
 Low V. Bartlett, N, S, iv, 185, 8 Allen 259, 
 Low V. Com, and Pass. H. R. Co., N. S. iv. 438. 
 
 45 N. H. 370. 
 Low V. Pardee, N. S. ix. 260. 48 111. 406. 
 
 Lowe t'. Peskett, O. S. iv. 125. 24 L. J. Com 
 
 PI. 196. 
 Lowell Savings Bank v. Winchester, N. S. iv. 
 
 119. 8 Allen 109. 
 Lowell Wire Fence Co. v. Sargent, N. S. iv.l83. 
 
 8 Allen 189. 
 Lowenstein v. Mcintosh, N. S. ii. 247. 37 Barb. 
 Lowk V. Woods, O. S. iii. 635. 15 111. 256. 
 
 251. 
 Lowndes Co. v. Hunter, N. S. xiii. 53. 49 Ala. 
 
 507. 
 Luchenbach v. Anderson, N. S. iv. 252. 47 
 
 Penna. St. 123. 
 Lucy, The, N. S. ix. 199. 8 Wall. 307. 
 Luke V. City of Brooklyn, N. S. iv. 444. 4S 
 
 Barb. 54. 
 Luke V. County of Calhoun, N. S. xiv. 397. 
 
 Ala 
 Luke v. Johnnycake, N. S. xii. 529, 532. 9 Kans. 
 
 611. 
 Lukins v. Aird, N. S. vii. 313. 6 Wall. 78. 
 Lum 1'. Robertson, N. S. vii. 312. 6 Wall. 277. 
 Lum V. Steamboat Buckeye, O. S. i. 699. 24 
 
 Miss. 564. 
 Lumley v. Gye, O. S. iii. 124. 18 Jur. 466. 
 Lunay v. Vantyne, N. S. vii. 764. 40 Verm. 501. 
 Lund V. The Seamen's Bank for Savings, N. S. 
 
 ii. 125. 37 Barb. 129. 
 Lunt V. Bank of North America, N. S. viii. 377. 
 
 49 Barb. 221. 
 Lynch v. Lynch, N. S. x. 476. 33 Md. 328. 
 Lynde v. Rowe, N. 8. vi. 317. 12 Allen 100. 
 Lynde v. Thompson, N. S. i. 248. 2 Allen 456. 
 Lyon V. Adde, N. S. xii. KiS, 261. 63 Barb. 89. 
 Lyon V. Chase, N. 8. vii. 761. 51 Barb. 13. 
 Lyon V. Detroit L. & Lake M. R. R. Co., N. S. 
 
 xiv. 708. 31 Mich. 429. 
 Lyon V. Divelbis, 0. 8. ii. 188. 22 Penna. St. 185. 
 Lyon V. Hancocli, N. S. viii. 503. 35 Cal. 372. 
 Lyon V. Pollard. N. 8.' xiv. 317. 20 Wall. 403. 
 Lyon V. Robertson, N. S. xiii. 453. 50 Ala. 74. 
 Lyon el ai.Ex'rs v. Snyder, N. 8. xi. 398, 400. 61 
 
 Barb. 172. 
 Lvon's Case, O. 8. ii. 698. 2 Wall., Jr. 149. 
 Lyons v. O. A. & M. Rail Road Co., N. S. x. 125. 
 
 32 Md. 18. 
 Lyons & Co. v. Hill & Co., N. 8. v. 698. 46 N. PL 
 
 49. 
 Lytle V. Bond, N. S. vii. 829. 40 Verm. 618. 
 Lytle V. Morris (Lyttle), 0. S. ii. 12U. 
 
 Maedonald v. Longbottom, O. S. vii. 639. 3S 
 
 L. T. 200. 
 MacDonough v. Gaynor, N. S. vii. 701. 3 C. E. 
 
 Green 2i9. 
 Maciarlane v. Giaunocopulo, O. S. vii. 510. 28 
 
 L. J. Ex. 72. 
 MacFarlane v. Norris, N. S. iii. 442. 2 B. & S. 
 
 783. 
 Mackason's Appeal, N. S. ii. 504. 42 Penna. St. 
 
 330. 
 Maokey v. Mackey, N. 8. iv. 437. 43 Barb. 58. 
 Macklot V. Davenport, N. S. iv. 442, 447. 17 
 
 Iowa 379. 
 Mackv V. Dillinger, N. S. xiii. 389. 73 Penna. 
 
 St. 85. 
 Madison v. Korbly, N. S. x. 70. 32 Ind. 79. 
 Magaw V. Gavitt, 0. S. iv. 440. 25 Penna. St. 
 
 319. 
 Magdalena Steam Nav. Co. v. Martin, O. S. viii. 
 
 250 ; 6 Jur. N. S. 1360. 28 L. J., Q. B. 310. 
 Magce V. Magee, N. S. x. 128. 81 111. 500. 
 Maggie Hammond, The, N. S, ix. 440. 9 Wall. 
 
 435. 
 Magie V. The German Evangelical Dutch 
 
 Church of Newark, N. S. i. 698. 2 Beas. 77. 
 Magniac v. Thomson, O. S. ii. 697, 700. 2 Wall., 
 
 Jr. 209. 
 Magnolia, Steamer v. Marshall, N. S. vi. 510. 
 
 39 Miss. 109. 
 Magraw, Trustee, &c, v. Joseph Pennock, O, S. 
 
 ii. 186. 2 Grant 89. 
 Maher v. McConaga. N. S. ix. 60. 47 111. 392. 
 Mahon v. Ivunkle, N. S. v. 379. 50 Penna. St. 
 
 216. 
 
TABLE OF ABSTRACT CASES. 
 
 1061 
 
 Mahoney v. Atlantic & St. L. E. E. Co., N. S. 
 
 xiv. sag. 6S Me. 68. 
 Main v. Minturu, O. S. i. 18i. 3 Selden (N. Y.) 
 
 220. 
 Mairs v. Tavlor, N. P. 1. 759, 40 Penna. St. 446. 
 Malone e. Keener, N. S. iii. 312. 44 Penna. St. 
 
 107. 
 Maluney v. Floran, N. S. viii. 571, 573, 574 ; 53 
 
 Barb. 29. 
 Malpras (Malpass) ti. Caldwell, N. S. xiii. 581. 
 
 70 N. C. 130. 
 Manahan v. Noyes, N. S. xii. 670. 52 N. H. 232. 
 Manchester f. Sahler, N. S. vl. 509. 47 Barb. 
 
 155. 
 Mandelbaum v. The People, N. S. ix. 194. 8 
 
 Wall. 310. 
 MandevUle v. Guernsey, N. S. ii. 630. 38 Barb. 
 
 22o. 
 Mangam v. Brooklyn City E. E. Co., N. S. i. 
 
 631. 36 Barb. 230. 
 Manhattan Fertilizing Co. v. Van Keusen 
 
 (Keuren), N. S. xi. 775. 8 C. G. Green 251. 
 Manhattan Gas Ligbt Co. v. Ely, N. S. iii. 60. 
 
 39 Barb. 174. 
 Manhattan Ins, Co. i\ Webster, N. S. viii. 757. 
 
 59 Penna. St. 227. 
 Manhattan Oil Co. •». C. & A. E. E. Co.. N. S. 
 
 viii. 309. 52 Barb. 72. 
 Manly v. People, O. S. i. 180. 3 Selden (N. Y.) 
 
 295. 
 Mann v. Birchard, N. S. vii. 702. 40 Verm. 326. 
 Mann v. Blanchard, N. S. i. 382. 2 Allen 386. 
 Mann v. Marsh, N. S. i. 379. 35 Barb. 68. 
 Mann v. Kichardson, N. S. xIt. 578. 66 111. 481. 
 Mann v. Eogers, N. S. viii. 505. 35 Cal. 316. 
 Manning v. Johnson. O. S. iv. 251. 26 Ala. 446. 
 Manser v. Dix, O. S. iv. 127. 24 L. J. Ch. 497. 
 Mansergh v. Campbell, O. S. vii. 605. 28 L. J. 
 
 Ch. 61. 
 Mansur v. Blake, N. S. xiv. 194. 62 Me. 38. 
 M. Nat. Bank of Newton j). Northrup, N. S. xi. 
 
 2M. 7 C. E. Green 58. 
 Manufacturing Co. v. Barnes, N. S. viii. 440. 
 
 48 K. H. 25. 
 Manufacturing Co. v. Fuller, N. S. i. 504. 3 
 
 Allen 441. 
 Marble Co. ii. Ripley, N. S. i. 197, 199, 201, 204. 
 ' lOWah. 339. 
 Marcellus v. Countryman, N. S. xiii. 57, 261. 65 
 
 Barb. 201. 
 Marcuard, Claims of, N. S. xiv. 117. 20 WaU. 
 
 114. 
 Margaret, The v. The Conestoga, O. S. ii. 700. 2 
 
 Wall., Jr. 116. 
 Marietta, &c. Railroad Co. v. Stephenson (Stev- 
 enson). N. S. xiii. 649. 24 Ohio St. 48. 
 Marine Bank of Chicago v. Wright, N. S. vi. 
 
 126. 46 Barb. 45. 
 Mark v. Congregational So., N. S. iv. 439. 
 Markham ii. Jandon, N. S. vii. 572. 49 Barb. 462. 
 Markham v. Eussell, N. S. vi. 574. 12 Allen 
 
 573. 
 Marlatt v. Warwick, N. S. vii. 768. 3 C. E. 
 
 Green 108. 
 Marlborough's Petition, N. S. vi. 317. 46 N. H. 
 
 4,94. 
 Marlett v. Jackman, N. S. i. 505. 3 Allen 287. 
 Marlow v. Benagh, N, S. xiv. 703. 52 Ala. 113. 
 Marqu. H. & O. E. R. Co. v. Taft, N. S. xiii. 527. 
 
 28 Mich. 289. 
 Marsh v. Hand. N. S. xi. 461. 532. 35 Md. 12.1. 
 Marsh v. The Oneida Cen. Bank, N. S. i. 239. 
 
 34 Barb. 298. 
 Marsh ». Whitmore. N. S. xiv.. 519. 21 Wall. 
 
 178. 
 JIarshall v. Berry, N. S. vii. 121. 13 Allen 43. 
 Marshall v. C. & G. E. Eailway Co.. N. S. ix. 
 
 262. 48111.475. 
 Marshall v. Dodi=on. N. S. x. 196. 1 Heiskell 95. 
 TilarshaU v. Goadby, N. S. iii. 438. 11 W. E. 365, 
 
 Q. B. 
 Marshall v. Jackson, O. S. iii. 639. 19 Jur. ].17. 
 Marston v. Mars^ton, N. S. vii. 443. 54 Me. 476. 
 Martin v. Ash. N. S. x. 533. 20 Mich. 166. 
 Martin (Morrison) v. Bailey, O. S. iv. 632. 5 
 
 Ohio St. 13. 
 
 Martin v. Berry, N. S. ix. 317. S7 Cal. 208. 
 Martin v. City of Evansville, N. S. x. 71. 32 
 
 Ind. 85. 
 Martin v. Graves, N. S. iii. 62. 5 Allen 601. 
 Martin v. Knapp, N. S. ix. 324. 45 Mo. 48. 
 Martin v. Martin, N. S. vii. 263. 47 N. H. 62. 
 Martin v. O'Conner, N. S. v. 128. 43 Barb. 614. 
 Martin v. Simpson, N. S. iii. 316. 6 Allen 102. 
 Martin i;. The Board, N. S. ix. 121. 64 Barb. 
 
 145. 
 Martin v. Wade, N. S. ix. 319. 37 Cal. 168. 
 Martin v. Whitmore, N. S. iii. 439. 33 L, J. Ch. 
 
 63. 9 Jur.. N. S. 1214, 
 Martz V. Detroit F. & M. Ins. Co., N. S. xiii. 461. 
 
 28 Mich. 201. 
 Marvin v. Lewis, N. S. xi. 264. 61 Barb. 49. 
 Mason v. Barnard, N. S. v. 444, 445. 36 Mo. 384. 
 Ma.son v. Cheney, N. S. vii. 315. 47 N. H, 24. 
 Mason v. Fruele (Finch), N. S. xiii. 454. 28 
 
 Mich. 282. 
 Mason v. People, N. S. iii. 499. 12 E. P. Smith 
 
 (N. Y.) 200. 
 Masselman, Trustees v. Caen, N. S. i. 63. 34 
 
 Barb. 66. 
 Masson &'Besanson's Appeal, N. S. xii. 402. 70 
 
 Penna. St. 26. 
 Mast's Appeal, N. S. i. 499. 40 Penna. St. 24. 
 Mathews v. Harsell, 0. S. iii. 443. 1 E. D. 
 
 Smith (N.Y.) 393. 
 Mathews v. Kelsev, N. S. x. 606. 58 Me. 56. 
 Mathews v. Livesey, 0, S. iv. 123. 24 L. J. 
 
 Exch. 2f)2. 
 Maton V. The People, O. S. Hi. 637. 15 111. 536. 
 Matter of Hicks, N. S. x. 476. 20 Mich. 129. 
 Matter of N. Y. & Boston E. E. Co., N. S. xi. 
 
 723. 62 Barb. 85. 
 Matthews v. Durvee. N. S. v. 570. 4B Barb. 69. 
 Mattoon v. McDaniel, N. S. iii. 634, 34 Mo. 138. 
 Maule V. Bucknell, N. S. v. 379. 50 Penna. St. 
 
 39 
 Maiin's Appeal, 0. S. i. 631. 18 Penna. St, 249. 
 Maupin et al. v. Emmons et al., N. S. x. 748, 750. 
 
 47 Mo. 304. 
 Mauran v. Insurance Co., N. S. vii. 444. 6 
 
 Wall 1. 
 Maury Co. v. Lewis Co.. O. S. i. 382. 1 Swan 
 
 263. 
 Maury & Co. v. Coyle, N. S. xi. 52. 34 Md. 236. 
 Maus V. The Comm., O. S. iv. 442. 
 Maus V. The L. P. & B. E. E. Co., N. S. ii. 118. 
 
 27 111. 77. 
 Max V, Glieen (Maxton), N. S. xiv. 200. 75 
 
 Penna. St. 106. 
 Maxfield v. C. I. L. E. E. Co., N. S. xiii. 261. 41 
 
 Ind, 269. 
 Maxwell v. Boyne, N. S. xii. 325, 326. 36 Ind. 
 
 120. 
 Maxwell v. Dav. N. S. xiv. 59. 45 Ind, 509. 
 Maxwell v. Hipp, N. S. ix. 390. 64 N, C, 98. 
 Maxwell v. Mitchell, N. S. xiii. 128. 61 Me. 106. 
 Maxwell v. Stewart, N. S. xiv. 459. 21 Wall. 71. 
 Maybee v. Sniflen. 0. S. v. 311 . 2 E, D. Smith 1. 
 Mayer's Appeal, N. S. xiii. 397. 73 Penna. St. 
 
 164. 
 Mayfleld v. Gordon, O. S. ii. 187. 
 Maynard v. Firemen's Fund Ins. Co., N. S. viii. 
 
 186. 34 Cal. 
 Mayne v. Jones. N. S. viii. 120. 34 Cal. 
 Mayor. The, &c. v. Franklin, O. S. ii. 318. 12 
 
 Geo, 239. 
 Mayor v. Holmes. N. S. xiii. 780. 39 Md. 243. 
 Mayors. Morgan, N. S. xiii. 52. 49 Ala. 349. 
 Mayor of N. Y. v. Second Av. E. E. Co., N. S, i. 
 
 63, 34 Barb. 41, 
 Mayor. &c. v. Sehner, N. S. xii. 729. 37 Md. 
 
 180. 
 May's Appeal, N. S. ii. 636. 41 Penna. St. 512, 
 Mavs r. Bank, N. S, x. 344. 64 Penna, St. 74. 
 Mavs V. Mannfact'rs Nat. Bank, N. S. x. 344. 
 
 64 Penna. St. 74. 
 Mays I'. Moore. 0. S. iv. 444. 13 Texas K: 
 McAbov V. Johns, N. S. xii. 403. 70 Penna, Pt, 
 McArthiur v. Schenck, N. S. xii. 127. 31 AVis. 
 
 673. 
 McAvoy V. Medina, N. S. vi. 189. 11 Allen 548. 
 McBain v. Smith, 0. S, ii. 381. 13 Geo, 315. 
 
1062 
 
 TABLE OF ABSTRACT OASES. 
 
 MoBride v. Fanners' Bank, N. S. iii. 636. 12 E. 
 
 P. Smith (N. Y.) 450. 
 McBrooin-& Wood's Appeal, N. S. ill. 309. U 
 
 Penna. St. 92. 
 McBumey v. Wellman, N. S. iv. 382. 42 Barb. 
 
 390. 
 McBurney's Appeal, 0. S. ii. 185. 
 McCabe, In re v. McEae & SMp Empire, N. S. 
 
 X. 671. 58 Me. 95, 
 MoOabe v. The Town of Hammond, N. S. xiii. 
 
 653. 34 Wis. 590. 
 McCafferty v. Guyer, N. S. viil. 694. 59 Penna. 
 
 St. 109. 
 McCagg V. Chicago, N. S. ix. 642. 51 111. 17. 
 McGahiU V. Kipp, O. S. y. 313. 2 E. D. Smith 
 
 (N.Y.)413. 
 McCahon v. Commissioners, N. S. xi. 269. 8 
 
 Kans. 437. 
 MoCann et ai. v. Day, N. S. xii. 190. 57 111. 101. 
 MoCanna v. Johnson, 0. S. 1. 122. 19 Penna. 
 
 St. 434. 
 McCartney v. Bostwick, N. S. iv. 572. 
 McCartney's Adm'r v. Alderson, N. S. Ix. 321. 
 
 45 Mo. 35. 
 Mccarty v. Kitchenman, N. S. It. 311. 47 
 
 Penna. St. 239. 
 McCaughey v. Smith, N. S. It. 190. 13 E. P. 
 
 Smith (N. Y.) 39. 
 McCauley v. The State, O. S. iv. 191. 26 Ala. 
 
 135. 
 McCausland v. Fleming, N. S. x. 63. 63 Penna. 
 
 St. 36. 
 McCay et al. v. Wait, N. S. viil. 191. 51 Barb. 
 
 225. 
 McClane's Adm'x v. Shepherd's Ex'r, N. 3. x. 
 
 279, 280. 6 C. E. Green 76. 
 McClernan v. Hall. N. S. x. 532. 38 Md. 293. 
 Mcaure-Ji. Melendy, N. S. iii. 126. 44 N. H. 
 
 469. 
 McCluret). P., W. & B. R. R. Co., N. S. xi. 62. 34 
 
 Md. 532. 
 McClure v. Rail Eoad Co., N. S. xi. 62. 34 Md. 
 
 632. 
 McClurg V. Terry, N. S. i. 279. 6 C. E. Green 
 
 225. 
 JlcClurg'a Appeal, N. S. viii. 630. 58 Penna. 
 
 St. 61. ■ 
 McCoUom V. Pipe, N. S. x. 542. 7 Kans. 189. 
 McConnaughey v. Chambers, N. S. ix. 582. 64 
 , N. C. 284. 
 McConneU v. Denver, N. S. viii. 505. 35 Cal. 
 
 365. 
 McConochie v. The Sun Mutual Ina. Co., N. S. 
 
 iii. 701. 12 E. P. Smith (N. Y.) 477. 
 McConohy v. The State of Ohio, O. S. iv. 633. 
 
 5 Ohio St. 77. 
 McCotter v. De Groot, N. S. viii. 125. 4 C. E. 
 
 Green 72, 631. 
 KcCoy V. Stranahan (Stranathan). N. S. xiv. 
 
 200. 24 Ohio St. 486. 
 McCreadv v. Thome, N. S. vii. 575. 49 Barb. 
 
 438. 
 McCready v. Woodhull, N. S. i. 63. 34 Barb. 80. 
 MoCrillis v. Carlton, N. S. v. 260. 37 Verm. 
 
 139. 
 McCurdy & Stevenson v. Canning, N. S. x. 
 
 347. 64 Penna. St. 39. 
 MoCurdy & Vandyke's Appeals, O. S. ii. 445. 
 McDonald v. Christie, N. S. iv. 191. 42 Barb. 
 
 36. 
 McDonald iJiCo. v. Feagan, Sh'ff, N. S.xi. 336. 
 
 43 Geo. 360. 
 McDonald v. Pierson, N. S. ii. 441. 38 Barb. 
 
 128. 
 McDonald v. Todd, 0. S. -1. 250. 1 Grant 17. 
 McDonough v. Gilman, N. S. i. 507. 3 Allen 
 
 264. 
 McDowell «. N. Y. Cent. E. E. Co., N. S. ii. 186. 
 
 37 Barb. 195. 
 McEachron v. Handles, N. S. i. 241. 34 Barb. 
 
 301. 
 McFarland v. The Orange Horse-car E. R. Co., 
 
 N. S. i. 696. 2 Beasley 17, 561. 
 McFyer (T.) v. Steele, O. S. iv. 188. 26 Ala. 
 
 487. 
 JlcGar V. Williams, O. S. iv. 189. 26 Ala. 40 9. 
 
 MoGatick v. Wasson, O. S. iv. 637. 4 Ohio St. 505. 
 McGee v. Mathis, N. S. vi. 437. 4 Wall. 143. 
 McGehee v. The State, N. S. xiv. 644. 52 Ala. 2!4. 
 McGinnis d. Watson, N. S. ii. 251. 41 Penna. St. 9. 
 McGlasban v. Tallmadge, N. S. Ii. 316. S7 
 
 Barb. 313. 
 McGonigal v. Plummer. N. S. ix. 583. 30 Md. 
 
 422. 
 McGovem v. Hoesback, N. S. vii. 64. 63 Penna. 
 
 St. 176. 
 McGowan (McCowan) v. Whitesides, N. S. ix. 
 
 454. 31 Ind. 235. 
 McGregor v. Buel, N. S. Ii. 120. 10 E. P. Smith 
 
 (N. Y.) 166. 
 McGuinness v. Bligh. N. S. xiv. 393. irE. I. 
 McGuire v. The Commonwealth, N. S. v. 670. 
 
 3 Wall. 387. 
 McGunnigle v. McKee, N. S. xiv. 754. 77 
 
 Penna. St. 81. 
 Mclntier v. Shaw, >f. S. iii. 317. 6 AUen 83. 
 McKay v. Bmitherman, N. S. ix. 447. 64 N. C. 
 
 47. 
 McKean v. Turner, N. S. iv. 437. 45 N. H. 203. 
 McKechuie v. Sterling, N. S. vii. 128. 43 Barb. 
 
 364. 
 McKee v. Campbell, N. S. xiii. 399. 27 Mich. 
 
 497. 
 McKee v. Kinney, N. S. iii. 634. 34 Mo. 125. 
 McKee v. The U. S.. N. S. ix. 55. 8 Wall. 163. 
 McKee's Exr's v. The Comm., O. S. ii. 186. 2 
 
 Grant 27. 
 McKibbin v. Martin, N. S. x. 406. 64 Penna. 
 
 St. 382. 
 McKinley v. Lamb, N. S. xii. 597. 64 Barb. 199. 
 McKinley v. Tucker. N. S. x. 6T0. 69 barb. 93. 
 McKinnevt). Whiting, N.S. iv.l87. 8 Allen 207. 
 McKlnster v. Babcock, K. S. ii. 248. 37 Barb. 
 
 266. 
 McKlnzie v. E. E. Co., N. S. viii. 251. 28 Md. 
 
 161. 
 McKnlght V. Eatcliflf, N. S. iii. 311. 44 Penna. 
 
 St. 166. 
 McKnight v. Wlmer, N. S. vi. 263. 38 Mo. 132. 
 McKorkle v. Black, O. S. iii. 574. 7 Rich. 407. 
 McLaughlin v. Atlantic M. Ins. Co., N. S. x. 130. 
 
 57 Me. 170. 
 McLaughlin v. Chuley. N. S. viii. 62. 66 Penna. 
 
 St. 270. 
 McLaughlin v. McGovern, N. S. i. 237. 34 Barb. 
 
 208. 
 McLaughlin v. The City of Corry, N. S. xiv. 
 
 767. 77 Penna. St. 109. 
 McLaughlin v. The State, N. S. xiv. 59. 45 
 
 Ind. 338. 
 McLoon's Adm'r v. Cumwiings, N. S. xiii. 308. 
 
 73 Penna. St. 98. 
 McMahon v. Alleu, N. S. i. 63. 34 Barb. 56. 
 McMahon v, Morrison, N. S. iii. 695. 16 Ind. 
 
 172. 
 McMahon v. O'Donnell, N. S. ix. 390. 5 C. E. 
 
 Green 306. 
 McMillan v. Eailroad Co., N. S. vii. 191. 16 
 
 Mich. 79. 
 McNaughton «. McNaughton, N. S. iii. 502. 41 
 
 Barb. 60. 
 McNeal v. Allegheny Township, O. S. i. 124. 
 Mclsiel et ai. v. Davidson, ^. S. xii. 596. 37 
 
 Ind. 336. 
 McPheeters v. Han. & St. Jos. Eailroad Co., N. 
 
 S. ix. 325. 45 Mo. 22. 
 McQueen v. Babcock, N. S. iii. 701. 41 Barb. 
 
 337 
 McQuiddy v. Ware, N. S. xiv. 124. 20 Wall. 14. 
 McEea and Others v. David, 0. S. i. 572. 5 liich. 
 
 Eq. Cas. 476. 
 McKeynolds v. Countz, O. S. ill. 51. 9 Grat. 
 
 2J2. 
 McTighe V. Dean, N. S. xi. 68. 7 C. E. Green 
 
 81. 
 McVi'illiams v. Allen (Allan), N. S. ix. 642. 45 
 
 Mo. 673. 
 Mead v. Combs, N. S. viii. 120. 4 C. E. Green 
 
 112. 
 Means v. Swormstead (Swormstedt), N. S. x. et 
 
 32 Ind. b7. 
 Mears ti. Moulton, N. S. ix. 328. 30 Md. X42. 
 
TABLE OF ABSTRACT CASES. 
 
 1063 
 
 llecham ». McKay, N. S. ix. 322. 37 Cal. l."4. 
 Mechanics' Bank v. Schauiaberg, N. S. \i. 2-16. 
 
 38 Mo. 228. 
 Mechanics' Bonk of Willianisburg v. Foster, 
 
 N. S. V. 381. 44 Barb. 87. 
 Mechanics' and Farmers' Bant of Albany v. 
 
 Wixon, N. S. vi. ISi. 415 Barb. 218. 
 Meesel v. L. & B. K. K. Co., N. S. iv. 189. 8 Allen 
 
 234. 
 Meginnis v. Nunamaker, N. S. x. 414. 64 Penna. 
 
 St. 374. 
 Meigs V. Leister, N. S. xli. 62. 8 C. E. Green 199. 
 MeSel V. State Savings Inst., N. S. xii. 319. 36 
 
 Ind. 385. 
 Meiswinkle v. (Jung) McCullough, N. S. xii. 
 
 127. 30Wis. 3G1. 
 Mekonkey's Appeal, O. S. i. 251. 13 Penna. St. 
 
 2.53. 
 Melcher v. Ocean Ins. Co., N. S. xi. 595. 59 Me. 
 
 ■217. 
 Melleu 1). Whipple, O. S. iii. 59. 1 Gray 317. 
 Heller v. Smith, O. S. v. 314. 2 E. D. Smith 
 
 462. 
 Melling v. Leak, O. S. iv. 127. 24 L. J. C. P. 187. 
 
 19 Jur. 759. 
 Melvin v. Hoitt, N. S. xii. 531. 52 N. H. 61. 
 Memphis Company v. Memphis, S. S. ix. 57. 
 
 8 Wall. 64. 
 Mendon v. Commis. of Worcester, N. S. ii. 445. 
 
 5 Allen 13. 
 Menges v. Frick, N. S. xlii. 399. 73 Penna. St. 
 
 137. 
 Menifee v. Higgins, N. S. xii. 261. 57 111. 50. 
 Mercantile Mutual Ins. Co. v. Chase, O. S. iii. 
 
 444. 1 E. D. Smith 115. 
 Mercer Co. v. Hacket, N. S. iv. 115. 1 Wall. 83. 
 Jlerchants' Bank v. Curtis, N. S. ii. 315. 37 
 
 Barb. 317. 
 Merchants' Bank v. Stevenson, N. S. iii. 698. 7 
 
 Allen 489. 
 Jlerohants' Ins. Co., In le, N. S. xiii. 193. 3 Bis. 
 
 162. 
 Merithew v. Andrews, N. S. v. 510, 512. 44 
 
 Barb. 200. 
 Merithew v. Sampson, N. S. i. 764. 4 Allen 192. 
 Merrick v. Germanla Fire Ins. Co., N. S. vii. 
 
 314. 54 Penna. St. 277. 
 Merrifleld v. Lombard, N. S. vii. 126. 13 Allen 
 
 16. 
 Jlerrill v. Curtis, N. S. x. 124. 57 Me. 152. 
 MerrUI v. Houghton, N. S. xii. 55. 51 N. H. 61. 
 Merrill v. Nary, N. S. v. 573. 10 Allen 416. 
 Merrlmac Mining Co. v. Levy, N. S. vii. 312. 
 
 54 Penna. St. 227. 
 Merrimac, The, X. 8. xii. 185. 14 Wall. 199. 
 Merrit v. Todd, N. S. i. 58. 9 E. P. Smith (X. 
 
 Y.) 28. 
 Merritt v. Brown, N. S. x. 351. 6 C. E. Green 
 
 134 401. 
 Merritt v. Day, N. S. xiv. 700. 9 Vroom 32. 
 Merritt v. Morgan (Peabody), N. S. ix. 636. 40 
 
 Geo. 177. 
 Merritt v. Old Col. & Newport E. E. Co., N. S. 
 
 vl. 62. 11 Allen 80. 
 Merriwether v. Smith, N. S. xi. 397. 44 Geo. 
 
 541. 
 Merry, Admr. v. Sweet, N. S. v. 127. 43 Barb. 
 
 476. 
 Mervinea. Sailor, N. S. vi. 637. .52 Penna. St. 18. 
 Messeck v. The Board of Supervisors of Colum- 
 bia County, N. S. vii. 637. 50 Barb. 190. 
 Metcalf V. Clark, N. S. iii. 502. 41 Barb. 45. 
 Metier v. Easton & Amboy E. E. Co., N. S. xiv. 
 
 817. 10 C. E. Green 214. 
 Metrop Bank v. Durant and Others, N. S. xi. 56. 
 
 7 C. E. Green 35. 
 Metropolitan Bank v. Commissioners of Taxes, 
 
 N. S. V. 123. 43 Barb. 494. 
 Metzler v. Shaumann (Wetzler v. Schaumann), 
 
 N. e. xiii. 199. 9 C. B. Green 60. 
 Meyer v. City of Muscatine, N. S. iv. 116. 1 
 
 Wall. 384. 
 Meyer v. People's Eailway, N. S. viu. 382. 43 
 
 Mo. 523. 
 Meyers v. McOarty, O. .«. ii. •'i09. 
 Meyor v. Sheffield, N. S. vi. 441. 4 Wall. 189. 
 
 M. K. & T. E. W. Co. V. Crowe, N. S. xi. 776. 9 
 
 Kans. 496. 
 Micheson v. NichoU, O. S. i. 49. 19 L. T. (Exch.) 
 
 229. 
 Michigan Bank v. Eldred, N. S. ix. 509. 9 
 
 Wall. 544. 
 Mich. Cen. Eailroad Co. v. Anderson, N. S. x. 
 
 478. 20 Mich. 244. 
 Mich. Ins. Co. v. Brown, N. S. ii. 571. 11 Mich. 
 
 265. 
 Michner v. Dale, 0. S. ii. 448. 23 Penna. St. 59. 
 Middleton v. Barker, N. S. xiii. 689. 29 L. T. 
 
 N. S. 643. 
 Middlesex Co., Freeholders of v. Thomas, N. 
 
 S. ix. 320. 5 C. E. Green 39. 
 Middlesex E. E. Co. v. Charlestown, N. S. iv. 
 
 117. 8 Allen 330. 
 Miles V. Caldwell, N. S. iv. 510. 2 Wall. S5. 
 Miles V. Harrington, N. S. xi. 336. 8 Kaus. 425. 
 Miles V. Miles, N. S. vi. 250. 46 N. H. 261. 
 Miles V. Pennock, N. S. xi. 269. 50 N. H. 604. 
 Milford, Inhab's of v. Holbrook, N. S. iv. 766. 
 
 9 Allen 17. 
 Millard v. Brown, N. S. vi. 378. 8 Tiffany, N. 
 
 Y. 297. 
 Miller v. Beal, N. S. vi. 713. 26 Ind. 234. 
 Miller v. Brumbaugh, N. S. x. 403. 7 Kans. 
 
 343 
 Miller v. Collver, N. S. i. 572. 36 Barb. 250. 
 Miller v. Eagle Life Ins. Co., O. S. v. 313. 2 E. 
 
 D. Smith 268. 
 
 Miller v. Earle, N. S. ii. 58. 10 E. P. Smith, N. 
 
 Y. 110. ■> 
 
 Miller v. P. & M. Bank, N. S. ix. 575. 30 Md. 
 
 393. 
 Miller v. Forman, N. S. xiii. 394. 8 Vroom 55. 
 Miller v. Gould. N. S. viii. 310. 38 Geo. 465. 
 Miller v. Hershey, N. S. viii. 699. 69 Penna. 
 
 .«t. 64. 
 Miller v. Joseph, N. S. xiii. 835. 17 Wall. 655. 
 Miller v. Laubach, N. S. iv. 318. . 47 Penna. St. • 
 
 154. 
 Miller v. Loeb, N. S. xii. 599. 64 Barb. 454. 
 Miller v. McManis, N. S. xii. 323, 328. 57 111. 
 
 126. 
 Miller v. Milligan, N. S. vi. 717. 48 Barb. 30. 
 Miller v. Moses, N. S. ix. 127. 56 Me. 128. 
 Miller v. Ohio. O. S. iv. 768. 5 Ohio St. 275. 
 Miller v. Eosier, xiv. 700. 31 Mich. 475. 
 Miller v. Second Jefferson B. A., N. S. v. 377. 
 
 .50 Penna. St. 32. 
 Miller v. Talcot, N. S. vi. 189. 46 Barb. 167. 
 Miller v. Teachout, N. S. xiv. 193. 24 Ohio St. 
 
 525 
 Miller v. The Pittsburg and Connellsville E. 
 
 E. Co., N. S. i. 694. 40 Penna. St. 237. 
 Miller v. Tiffany, N. S. iv. 116. 1 Wall. 298. 
 Miller v. Weeks, O. S. ii. 119. 22 Penna. St. 89. 
 Miller, Ex'r v. Goldthwait, N. S. xii. 661. 37 
 
 Ind. 217. 
 Miller. Trustees v. The E. & W. E. E. Co., N. 
 
 S. vii. 762. 40 Verm. 399. 
 Miller's Appeal, N. S. i. 498. 40 Penna. St. 57. 
 Milligan, Ex parte, N. S. vi. 566. 4 Wall. 2. 
 Milligan v. Hovey, N. S. xlii. 122. 3 Bis. 13. 
 Milliken v. Ham, N. S. xii. 407. 36 Ind. 766. 
 Milne v. Gilbert. 0. S. iii. 256. 18 Jur. 611. 
 Miltimore v. Miltimore, N. S. 1. 566. 40 Penna. 
 
 St. 151. 
 Mingus V. Condit, N. S. xii. 465. 8 C. E. Green 
 
 313 
 Mining Co. v. Harrison. N. S. xiii. 692. S. C. 
 
 L. E. 5 P. C. 49 ; 29 L. T. N. S. 658. 
 Mining Co. v. Levy, N. S. vii. 312. 54 Penna. 
 
 St 227 ' 
 Mining Co. v. Irby, N. S. ix. 583, 638. 40 Geo. 
 
 479. 
 Minor v. Happersett, N. S. xiv. 522. 21 Wall. 
 
 162. 
 Minot V. Sawyer, N. S. iv. 119. 8 Allen 78. 
 Minter's Appeal, N. S. i. 663. 40 Penna. St. 111. 
 Mintnrn v. Warren Ins. Co.. N. S. i. 124. 2 
 
 Allen 86. 
 Mirick v. Bashford, N. S. ii. 629. 38 Barb. 1 B1 . 
 Mishler v. Reed & Henderson, N. S. xiv. 520. 
 
 76 Penna, St. 76. 
 
1064 
 
 TABLE OF ABSTKACT CASES. 
 
 Missouri v. Andrews, N. S. viii. 379. 43 Mo. 
 
 470. 
 Missouri Kiver F. S. & G. R. E. v. M. T. B. C, 
 
 N. S. X. 607. 7 Kans. 232. 
 Missouri Klver R. E. Co. v. Richards, N. S. xi. 
 
 328. 8 Kans. 101. 
 Mitchell V. Bartlett, N. S. viii. 441. 62 Barb. 
 
 319. 
 Mitchell V. Burlington, N. S. vl. 638. 4 Wall. 
 
 270. 
 Mitchell V. Coates, N. S. iv. 442. 47 Penna. St. 
 . 202. 
 
 Mitchell V. Mitchell, N. S. ix. 639. 40 Geo. U. 
 Mitchell i>. Penna. Railroad Co., O. S. i. 717. 
 Mitchell V. Railroad Co., 0. S. 1. 717. 
 Mitchell V. Reed, N. S. xi. 463. 61 Barb. 310. 
 Mitchell V. Eocliland, N. S. vi. 189. 62 Me. 118. 
 Mitchell V. Sheppard, O. S. iv. 446. 13 Texas 
 
 484. 
 Mitchell V. St. Maxent's Lessee, N. S. vi. 440. 
 
 4 Wall 237 
 Moderwell v. MuUison, 0. S. i. 637. 21 Penna. 
 
 St. 237. 
 Monmouth County v. Hutchinson, N. S. x. 348. 
 
 6 C. E. Green 107. 
 Monmouth Co., Freeholders of v. Red Bank 
 
 Turnpilte Co., N. S. viii. 759. 3 C. E. Green 
 
 91. 
 Montel V. Consolidation Coal Co., N. S. xiii. 
 
 783. 39Md. 164. 
 MonteUo, The, N. S. xiv. 315. 20 Wall. 430. 
 Montp. & W. E. E. Co. v. Langdon, N. S. xii. 
 
 785. 45 Verm. 137. 
 Moody V. Mayor, N. S, v. 60. 43 Barb. 282. 
 Moody, Adm'r v. Threltield, O. S. ii. 381. 13 
 
 Geo. 56. 
 Mooiiey v. Musser, N. S. xiv. 65. 45 Ind. 115. 
 Moore v. Appleton, 0. S. iv. 189. 26 Ala. 633. 
 Moore v. Eldred, N. S.ix. 683. 42 Verm. 13. 
 Moore v. Huntington, N. S. xiii. 334. 17 Wall. 
 . 417. 
 Moore v. Labriskie, N. S. vii. 767. 3 C. E. 
 
 Green 51. 
 Moore v. Wade, N. S. xi. 264, 396, 397. 8 Kans. 
 
 380. 
 Moore v. Woolsey, O. S. ili. 701. 19 Jur. 468. 
 Moran v. Palmer. N. R. v. 62. 13 Mich. 367. 
 Morange v. Morris, N. S. i. 239. 34 Barb. 311. 
 More V. Bennett, N. S. vii. 190. 48 Barb. 229. 
 Moreau d al. v. Branson, N. S. xii. 697. 37 Ind. 
 
 195. 
 Morehead v. Murray, N. S. ix. 445. 31 Ind. 
 
 438. 
 Morey i'. Lockwood, N. S. ix. 126. 8 Wall. 230. 
 Morey v. Wakefield, N. S. viii. 510. 41 Verm. 
 
 24. 
 Morgan v. City of Mobile, N. S. xiii. 62. 49 Ala. 
 
 349. 
 Morgan v. Gregg, N. S. vi. 191. 46 Barb. 183. 
 Morgan v. Higgins, N. S. ix. 322. 37 Cal. 59. 
 Morgan v. Mayor of the City of Mobile, N. S. 
 
 xiii. 62. 9 Ala. 349. 
 Morgan v. Negley, N. S. vii. 59. 53 Penna. St. 
 
 153. 
 Morgan v. Palmer, N. S. ix. 512, 519. 48 N. H. 
 
 336. 
 Morgan v. Perry, N. S. xii. 326. 61 N. H. 559. 
 Morgan v. Skidmore, N. S. ix. 261, 326. 55 Barb. 
 
 263. 
 Morgan, Re John, 0. S. ii. 119. 6 Cox Cr. Cas. 
 
 116. 
 Morland v. Richardson, O. S, vi. 64. 22 Beav. 
 
 696. 
 Moross V. Ciootte (Beaulien), N. S. lii. 766. 12 
 
 Mich. 461. 
 Morrall v. Waterson, N. S. x. 407. 7 Kans. 199 
 Morrill u. Moulton, N. S. vii. 639. 40 Verm 
 
 242. 
 Morris v. Hazlehurst, N. S. ix. 580. SO Md. 362. 
 Morris C. & B. Co. v. Pagin, N. S. xi. 268. 7 (!. 
 
 E. Green 430. 
 Morris, goods of dec'd, N. S. i. 512. 31 L. J. 
 
 Prob. & Mat. 80. 
 Morris Canal Co. v. Eagan, N. S. vii. 700. 3 C. 
 
 E. Green 216. 
 Morris v. Hoyt, N. S. Ii. 569. 11 Mich. 9. 
 
 Morrisu. Kniffln.N. S. ii, 316. 37 Barb. 336. 
 Morris. Adm's v. Patchin, N. S. ii. 248. 10 E. P. 
 
 Smith (N. Y.) 394. 
 Morrison v. Darling, K. S. xiv. 754. 47 Verm. 
 
 67. 
 Morrison v. Davis & Co., O. S. i. 437. 20 Penna. 
 
 St. 171. 
 Morrison v. Kurtz, O. S. iii. 687. 15 111. 193. 
 Morrison v. Minot, N. S. iii. 64. 6 Allen 403. 
 Morrison v. Morrison, N. S. x. 198. 49 N. H. 69. 
 Morrison, Adm'r v, Anuj£, N. S. viii. 571. 48 
 
 N. H. 286. 
 Morrison v, Ogdensburgh E. E. Co., N. S. viii. 
 
 382. 52 Barb. 173. 
 Morrow v. Campbell, N. S. xii. 200. 30 Wis. 90. 
 Morrow v. Eeed, K. S. xii. 194. SO Wis. 81. 
 Morse v. AUen, N. S. v. 699. 46 N. H. 571. 
 Mortland v. Holton, N. S. ix. 195. 44 Mo. 68. 
 Morton v. Campbell, N. S. ii. 186. 37 Barb. 179. 
 Morton v. Onion. N. S. xii. 403. 45 Verm. 145. 
 Morton v. Young, N. S. viii. 187. 56 Me. 24. 
 Mosher ■;;. GrifBri, N. S. ix. 715. 51 111. 184. 
 Mosher v. Jewett, N. S. xiv. 897. 63 Me. 84. 
 Mosier's Appeal, N. S. viii. 63. 56 Penna. St. 
 
 76. 
 Mosly V. Mosly, O. S. iii. 54. 9 Grat. 584. 
 Mosse V, Salt, N. S. iii. 439, 443. 32 L. J. Chanc. 
 
 766 — E. 
 Mosselmen v. Caen, N. S. i. 63. 34 Barb. 66. 
 Mong V. Benedict (Moog v. Benedicks), N. S. 
 
 xiii. 456, 467. 49 Ala. 
 Moulton. Adm'r v. Eichardson, N. S. x, 200. 
 
 49 N. H. 76. 
 Mowe V. Stevens, N. S. xii. 660, 667. 61 Me. 
 
 692. 
 Mowrey (Mowry) v. Smith, N. S. v. 121. 9 Allen 
 
 67. 
 Moyer v. Moyer, N. S. v. 191. 49 Penna. St. 
 
 210. 
 Moynahan v. Moore. N. S. i. 185. 5 Cooley 9. 
 Mugford V. Eichardson, N. S. ili. 122. 6 AUen 
 
 76. 
 Muhlenberg v. Phil. & Eeading E. E. Co., N. S. 
 
 iv. 184. 47 Penna. St. 16. 
 Mulford 1). Hiers. N. S. i. 696. 2 Beasley 13. 
 MuUendore v. Scott, N. S. xiv. 60. 45 Ind. 
 
 113. 
 MulJin V. Hicks. N. S. vii. 511. 49 Barb. 260. 
 Mulrey i;. Shawmut M. F. Ins. Co., N. S. ii. 182. 
 
 4 Allen 116. 
 Munger v. Baker, N. S. xiii. 199. 65 Barb. 639. 
 Munkers et cU. v. Watson, N. S. xi. 775. 9 Kans. 
 
 668. 
 Munn, In re, N. S. xii. 461. 3 Bis. 442. 
 Munn V. Eeed. N. S. Ii. 254. 4 Allen 431. 
 Munroe v. Holmes, N. S. Iv. 505. 9 Allen 244. 
 Murphy v. Ball, N. S. ii. 631. 38 Barb. 263. 
 Murphy v. Bruce & Co. (Crew), N. S. viii. 308. 
 
 38 Ga. 139. 
 Murphy v. Dunning, N. S. xii. 121, 126. SO Wis. 
 
 296. 
 Murphy v. Garland, N. S. vii. 318. 47 N. H. 
 
 Murphy v. Mobile Trade Co., N. S. xiii. 50. 49 
 
 Ala. 436. 
 Murphy v. Tripp, N. S. v. 612. 44 Barb. 189. 
 Murphy v. Webber, N. S. xiii. 256, 61 Me. 478. 
 Murray v. Gale, Adm'r, N. S. viii. 381. 52 Barb. 
 
 427, 
 Murray v. Hazlett, 0. S. 1. 122. 19 Penna. St. 
 
 356. 
 Murray v. Receivers H. Ins. Co., N. S. x. 278. 
 
 88 Barb. 9. 
 Murray v. Vanderbilt. N. S. ii. 765. 89 Barb. 
 
 140. 
 Mutual Ins. Co. v. CuUom, N. S. xiii. 54. 49 
 
 Ala. 558. 
 Myer v. City of Muscatine, N. S. iv. 115. 1 Wall. 
 
 ^84. 
 Myers v. Burns, N. S. vi. 380. 8 Tiffany (N. Y.) 
 
 269. ' 
 
 Myers «. Feiin. N. S. vii. 59. 6 Wall. 205. 
 Myers v. Myers, N. S. iii. 504. 41 Barb. 114, 
 Myers ti. Murray (Manny), N. S. xiv. 58. 68 111. 
 
 Myrick v. Selden, N. S. i. 507. 36 Barb, 10. 
 
TABLE OF ABSTEAOT CASES. 
 
 1065 
 
 Naff V. Crawford, N. S. x. 195. 1 Heiskell lU. 
 Nailor v. Williams, N. S. ix. 61. 8 Wall. 107. 
 Najac 0. Boston & Lowell E. R. Co., N. S. iii. 
 
 568. 7 Allen 329. 
 Napier v. Darlington, N. S. xii. 407. 70 Penna. 
 
 St. 64. 
 Nashua Fire Ins. Co. v. Moore, N. S. xiv. 701. 55 
 
 N. H. 4S. 
 National Bank v. Comm'th, N. S. ix. 452. 9 
 
 Wall. 353. 
 National Bank v. Jaggers, N. S. ix. 578. 31 Md. 
 
 38. 
 National Bank of Cliemmig v. Ingraham, N. S. 
 
 X. 412. 58 Barb. 29i). 
 National Bank of Macon v. Nelson, N. S. viii. 
 
 309. 38 tteo. 391. 
 National Bank of the Metropolis v. Sprague, 
 
 N. S. ix. 323, 326. 5 C. E. Green 159. 
 National Bank of Washington v. Texas, N. S. 
 
 xlv. 192. 20WaU.72. 
 National Iron Armor Co. v. Bruner, N. S. viii. 
 
 244. 4 C. E. Green 331. 
 National Mechanics' Bank v. National Bank 
 
 of Baltimore. N. S. xii. 51. 36 Md. 5. 
 National State Bank v. Davis, N. S. xiv. 62. 24 
 
 Ohio St. 190. 
 Nave V. Home Mutual Ins. Co., N. S. vi. 60. 37 
 
 Mo. 430. 
 Nave V. Richardson, N. S. v. 442. 36 Mo. 130. 
 Nave V. Wilson, N. S. x. 743. 33 Ind. 294. 
 N. A. Trust & Banking Co. v. State of Ohio, O. 
 
 S. i. 179. 3 Selden (N. Y .) 328. 
 Navigation Co. v. Richards, N. S. viii. 315. 57 
 
 Penna. St. 142. 
 Navigation Co. v. Winsor, N. S. xiv. 120. 20 
 
 Wall. 64. 
 Neales v. NeaJes. N. S. Ix. 513. 9 Wall. 1. 
 Neat (Neal) v. Patton, N. S. ix. 646. 40 Geo. 363. 
 Nebeker et al. v. Cutsinger et al., N. S. xiv. 580. 
 
 48 Ind. 4S6. 
 Neff V. Bates, N. S. xiv. 647. 25 Ohio St. 169. 
 Neidig v. Whiteford, N. S. viii. 695. 29 Md. 178. 
 NeUis V. McCarn, N. S. i. 310. 35 Barb. 115. 
 Nelson v. Bondurant, O. S. iv. 190. 26 Ala. 341. 
 Nelson v. Hayner, N. S. xiv. 587. 66 111. 487. 
 Nelson v, Iverson, O. S. iii. 54. 24 Ala. 9. 
 Nelson v. Mather, N. S. viii. 447. 5 Kans. 151. 
 Nesbit V. Barry, O. S. iv. 443. 25 Penna. St. 208. 
 Nesbitt V. Logan, N. S. x. 474. 33 Md. 1. 
 Neusbaum v. Keim, N. S. ii. 59. 10 E. P. Smith 
 
 (N. Y.) 325. 
 Newark & Hudson R. R. v. Sanford & Wright, 
 
 N. S. xiii. 391. 8 Vroom 1. 
 Newark Plank Road v. Elmer, O. S. v. 57. 1 
 
 Stock. 754. 
 New Bedford Institutions for Savings v. Fair- 
 haven Bank, N. S. iv. 511. 9 Allen 17.5. 
 Newberry i). Trowbridge, N. S. iv. 570. 13 Mich. 
 
 263. 
 Newcomb v. Griswold, N. S. il. 57. 10 E. P. 
 
 Smith (N. Y.) 298. 
 Newcomer's Appeal, N. S. ii. 633. 43 Penna. 
 
 St. 43. 
 Newell V. Horn, N. S. iv. 448. 45 N. H. 421. 
 Newell V. Nixon, N. S. vi. 636. 4 Wall. 572. 
 Newell V. Smith, N. S. iii. 378. 15 Wis. 101. 
 N. J. Zink Co. v. Boston Frankllnite Co., N. S. 
 
 vi. 568. 2 McCarter 418. 
 Newlaud v. Gaines, N. S. x. 194. 1 Heiskell 720. 
 Newlin o. N. A. Ins. Co., O. S. i. 440. 20 Penna. 
 
 St 312 
 Newman v. Fisher, N. S. xii. 728. 37 Md. 259. 
 Newman v. Fowler, N. 8. xiv. 127. 8 Vroom 89. 
 Newman v. Tierman, N. S. ii. 185. 37 Barb. 159. 
 N. 0. J. & G. N. R. Co. V. Moye, N. S. vi. 507. 
 
 39 Miss. 374. 
 New Orleans v. Steamship Co., N. S. xiv. 317. 
 
 20 Wall. 387. 
 Newton v. Rickets, N. S. i. 511. 31 L. J. Ch. 247. 
 New York Life Ins. <fc Trust Co. v. Bedee, 0. S. 
 
 i. 180. 3 Selden (N. Y. ) 364. 
 Niagara F. I. Bridge Co. v. Great Western R. R. 
 
 Co., N. S. iii. 122. 39 Barb. 212. 
 Niblo V. BruRse (Biusse) Ex'r, N. S. v. 248. 44 
 
 Barb. 54. 
 Niclaol V. Goltz, 0. S. iii. 125. 23 L. J. 162. 
 
 Nichols V. Levy. N. S. vii. 120. 5 Wall. 433. 
 Nichols V. Nichols, N. S. xiv. 322, 10 C E. 
 
 Green 60. 
 Nichols V. Perry, N. S. x. 605. 58 Me. 29. 
 Nichols V. United States, N. S. ^dii. 255. 7 
 
 Wall. 122. 
 Nichols V. Weaver, N. S. x. 410, 414. 7 Kans. 
 
 373. 
 Nichols V. Williams, N. S. xi. 265. 7 C. E. Green 
 
 63. 
 Nicholson i). Leavitt, 0. S. i. 181. 2 Selden (N. 
 
 Y.)510. 
 Nicholson v. Pine, O. S. iv. 636. 6 Ohio St. 25. 
 Nicholson v. Eicketts; N. S. iv. 317. 2 Ell. & 
 
 Ell. 497. 
 Nicholson v. State, N. S. xiii. 194. 38 Md. 140. 
 Nicholson v. Tutiu, O. S. vi. 62. 3 K. & J. 159. 
 Nightingale v. Hidden, N. S. ii. 443. 7 R. J. 
 
 115. 
 Nix V. The State, O. S. iv. 444. 13 Texas 575. 
 Noble V. Cope's Administrators, N. S. v. 378. 50 
 
 Penua. St. 17. 
 Noble V. Leary, N. S. xii. 530. 37 Ind. 186. 
 Noel V. Karper, N. S. vii. 124. 53 Penna. St. 97. 
 Noles V. The State, O. S. iv. 191. 26 Ala. 31. 
 Noonan, In re, N. S. xiii. 121. 3 Bis. 491. 
 Norcross v. Norcross, N. S. vi. 665. 63 Me. 163. 
 Norfleet v. CromweU, N. S. ix. 446. 64 K. C. 1. 
 Norris's Appeal, N. S. xu. 787. 71 Penna. St. 
 
 106. 
 Norris v. Graham, N. S. x. 474. 83 Md. 56. 
 Norris v. Morrison, N. S. v. 700. 45 N. H. 490. 
 Norris v. The State, N. S. xlv. 644. 25 Ohio St. 
 
 217. 
 Norris et al. v. Thomson's Exr's, N. S. viii. 244. 
 
 4C. E.Green 307, 575. ' 
 N. A. P. Ins. .Co. V. Throop, N. S. xi. 462. 22 
 
 Mich. 146. 
 North Baptist Church v. Parker, N. S. i. 571. 
 
 36 Barb. 171. 
 North Berwick Co. v. N. E. F. &M. Ins. Co., N. 
 
 S. vi. 187. 52 Me. 336. 
 North Missouri Railroad Co. v. Maguire, N. S. 
 
 xiv. 118, 119. 20 Wall. 46. 
 N. P. R. R. Co. V. Mahoney, N. S. viii. 316. 57 
 
 Penna. St. 187. 
 North Mo. R. R. Co. v. Stephens, N. S. v. 441. 
 
 36 Mo. 150. 
 North Penn. Coal Compy's Appeal, N. S. iii. 
 
 572. 45 Penna. St. 181. 
 Northam v. Bowden, O. S. iv. 126. 24 L. J. Ex. 
 
 237 
 Northern R. R. Co. v. Fitohhurg E. E. Co., N. 
 
 S. iii. 250. 6 Allen 254. 
 Northern Belle. The, N. S. ix. 442. 9 Wall. 626. 
 Northiield Bank v. Brown, N. S. iv. 266. 
 Northrop v. Hill, N. S. xi. 397. 61 Barb. 136. 
 Northumberland Bank v. Eyer, N. S. viii. 630. 
 
 68 Penna. St. 97. 
 Northumberland Co. v. Zimmerman, N. S. xiv. 
 
 125. 75 Penna. St. 26. 
 Norton v. Edgar, N. S. xiii. 51. 65 Barb. 176. 
 Norton v. Kidder N. S. vii. 447. 54 Me. 189. 
 Norton v. Nye, N. S. ix. 126. 56 Me. 211. 
 Norton v. Winscott, O. S. i. 699. 
 Nerval v. Pascoe, V. ii. Kindersley, N. S. iv. 
 
 310. 10 Jur. N. S. 792. 
 Norvell v. Gray, Lessee, 0. S. i. 382. 1 Swan 96. 
 Norway Plain Co. v. Boston R. R., 0. S. iii. 59. 
 
 1 Gray 263. 
 Norway Plains Co. v. Bradley, N. S. xii. 535. 
 
 52 N. H. 86. 
 Norwich University v. Dana (Denny), N. S. 
 
 xiv. 751. 47 Verm. 13. 
 Nott V. Stoddard, N. S. v. 639. 38 Verm. 25. 
 Noxon V. Hill, N. S. i. 178. 2 Allen 216. 
 Noyes t'. Blakeman, O. S. i. 183. 2 Selden (N. 
 
 Y.) 567. 
 Noyes v. White. N. S. xii. 60. 9 Kans. 640. 
 Nudd V. Hamblin, N. S. iv. 118. 8 Allen 130. 
 Nutter V. De Rochmont, N. S. vi. 252. 46 N. H. 80. 
 
 Oatman v. Bond, N. S. iii. 377. 16 Wis. 20. 
 Oberle (Oberly) v. Lerch, N. S. vii. 766. 3 0. 
 E. Green 346, 575. 
 
1066 
 
 TXBLE OF ABSTRACT OASES. 
 
 Obermeyer v. Globe lus. Co., N. S. viii. 380. 43 
 
 Mo. 573. 
 O'Connor, In re, N. S. vii. 60. 48 Barb. 258. 
 O'Connor v. Layton, O. S. ii. 120. 
 Odell V. Odell, N. S. v. 384. 10 Allen 1. 
 Odell V. Wooten, N. S. viii. 318. 38 Geo. 224. 
 Odenbaugh?). Bradford, N. S. xi. 267. 67 Penna. 
 
 St. 96. 
 O'Donnell v. Allegheny E. E. Co., N. S. viii. 
 
 767. 59 Penna. St. 239. 
 Ogden V. Lucas. N. S. ix. 391. 48 111. 492. 
 Ogle V. Lichteberger, O. S. i. 121. 
 Oglesby v. Howard, N. S. viii. 698. 43 Ala. 144. 
 Ollare v. Second National Bank, N. S. xiv. 
 
 758. 77 Penna. St. 96. 
 Ohio V. Bucldand, 0. S. v. 123. 5 Ohio St. 216. 
 O. & M. Eailway Co. v Cole, N. S. xiii. 198. 41 
 
 Ind. 331. 
 Ohio & Miss. E. E. Co. v. Muhling, N. S. iii. 
 
 312. 30111.9. 
 O. & M. Railroad Co. v. Shanefelt, N. S. ix. 62. 
 
 47 111. 497. 
 Obting V. Luitjens, N. S. iy. 441, 443. 32 111. 23. 
 O'Keefe v. The State, N. S. xiv. 54. 24 Ohio 
 
 St. 175. 
 Oil Co. V. C. & A. E. R. Co., N. S. viii. 309. 52 
 
 Barb. 72. 
 Oil Co. V. U. S. Petroleum Co., N. S. viii. 314. 
 
 67 Penna. St. 83. 
 Okeson's Appeal, N. S. viii. 698, 703 ; 59 Penna. 
 
 St. 99. 
 Olcott V. Bynnm, N. S. xiii. 336. 17 Wall. 44. 
 Oleson V. G. B. & Lake V. E. E. Co., N. S. xiv. 
 
 710. 36 Wis. 383. 
 Oliver v. Washington Mills, N. S. vi. 58. 11 
 
 Allen 268. 
 Onderdonk v. Mott, N. S. i. 182. 34 Barb. 106. 
 Oothout V. Ballard, N. S. iii. 445. 41 Barb. 33. 
 Opdyke's Appeal, N. S. v. 255. 49 Penna. St. 
 
 373. 
 Opdvke V. Marble, N. S. v. 253. 44 Barb. 64. 
 Ordway v. Haynes, N. S. vii. 316. 47 N. H. 9. 
 Orchard v. Hughes, N. S. iii. 694. 1 Wall. 73. 
 Orcutt V. Cahill, N. S. ii. 120. 10 E. P. Smith 
 
 (N. Y.) 578. 
 Oregon Steam Navigation Co. v. Winsor. N. S. 
 
 XIV. 120, 20 Wall. 64. 
 Oriental, The, O. S. i. 48. 3 Eob. Ad. Cas. 243. 
 Orne v. Roberts, N. S. xii. 55. 61 N. H. 110. 
 O'Rourke v. Hart, N. S. ii. 667. 7 Bosw. 511. 
 Orr V. Mayor, &c., of New Nork, N. S. xii. 403, 
 
 469. 64 Barb. 106. 
 Orton (Osbom) v. Hart, N. S. ix. 122. 24 Wis. 
 
 89. 
 Orton V. The State of Iowa, O. S. i. 697. 4 G. 
 
 Greene 140. 
 Osbom V. Forshee, N. S. xi. 598. 22 Mich. 209. 
 Osburne v. Gilbert, N. S. viii. 381. 52 Barb. 158. 
 Osgood V. Laytin, N. S. vii. 252. 48 Barb. 463. 
 Osgood V. McConnell, N. S. iv. 438, 439. 32 111. 
 
 74. 
 Osmanli, The, O. S. i. 49. 3 Eob. Ad. Cas. 198. 
 Ossipee H. & W. Manf. Co. v. Canney, N. S. xiv. 
 
 466. 54 N. H. 295. 
 Osterman v. Baldwin, N. S. vii. 317. 6 Wall. 
 
 116. 
 Oswald V. Kennedy, N. S. iv. 638. 48 Penna. 
 
 St. 9. 
 Outwite (Outhwite) v. Porter, N. S. v. 249. 13 
 
 Mich. 633. 
 Overseers of Ashburton v. Ovs. Station, O. S. 
 
 iii. 508. 19 Jur. 233. 
 Oviatt V. Pond, N. S. i. 188. 29 Conn. 479. 
 Owen V. Cawley, N, S. iv. 123. 42 Barb, 105, 
 Owen V. Slatter, O, S, iv, 252, 26 Ala, 647, 
 Owen V. Whitaker, N, S. ix. .S18, 5 C, E, Green 
 
 122, 
 Owners of Steamboat Farmer v. MoCraw, O, S, 
 
 iv, 191, 26 Ala. 189. 
 Ownes V. Ownes, N, S. xi, 776. 8 C. E, Green 
 
 60. 
 Ozley V. Ikelheimer, 0, S, iy. 251, 26 Ala, 332, 
 
 P„ A, & M, P. R, W, Co, V. Donahue, N, S. xii. 
 405, 70 Penna, St, 119, 
 
 P„ C. & St. L. E. W, Co, V. Bowyer, N, S, xiv. 
 
 61, 45 Ind, 496, 
 P,, S, & P, E, K, Co, V. Grand T. E. E. Co., N, S. 
 
 xiv. 393. 63 Me. 90. 
 Pacific Bank v. De Eo, N, S, ix. 327. 37 Cal. 
 
 538. 
 Pacific Railroad Co. v. Kash, N. S. x. 535. 7 
 
 JCans. 280. < 
 
 Paddock v. Com, Ins, Co,, N. S, i, 125, 2 Allen 
 
 93 
 Page V. Esty, N, S, vii, 446, 64 Me, 319, 
 Page V. Heineberg, N. S. vii, 697, 40 Yerm, 81. 
 Page V. Palmer, N. S, ix, 512, 48 N. H. 385, 
 Page V. Thompson, N, S, x, 667, S3 Ind. 137, 
 Paige V. Fazerckerly, N, S, i, 766, 36 Barb. 392. 
 Paine v. Drew, N. S. iii. 381. 44 N. H. 306.' 
 Paine v. Hunt, N. S. iii. 268. 40 Barb. 75. 
 Pairo V. Vickery, N. S. xiii. 200, 37 Md, 467, 
 Paist V. Caldwell, N. S. xiv. 191. 76 Penna, St. 
 
 161, 
 Palen v. Bushnell, N. S. vi. 125, 46 Barb, 24. 
 Palen v. Johnson, N. S. vi. 127. 46 Barb. 21. 
 Palfrey v. Portland, Saco & Portsmouth R. R. 
 
 Co., N. S. i. 690. 4 Allen 55. 
 Palmer's Appeal, O. S. i. 439. 
 Palmer v. Avery, N. S. iii. 637. 41 Barb. 290. 
 Palmer v. Hnssey, N, S, xiii, 262, 65 Barb, 278, 
 Palmer v. Lawrence Manf, Co., N. S. vi, 382. 
 
 12 Allen 69. 
 Palmer v. Preston, N, S, xiii, 51. 45 Verm. 154. 
 Park Commiss. v. Common Council, N. S. xiii. 
 
 524, 525. 28 Mich. 228. 
 Park V. Johnson, N. S. ii. 180. 4 Allen 259. 
 Park v. McDaniels, N. S. v. 505. 37 Verm. 594. 
 Park Bank v. Wood, N. S. i. 503. 10 E. P. Smith 
 
 (N. Y.) 94, 
 Parker v. Atwood, N, S, xi, 720; N, S. xii. 530. 
 
 52 N. H. 181. 
 Parker v. Child, N. S. xiv. 323. 10 C. E. Green 
 
 41. 
 Parker t'. Coburn, N. S. v. 383. 10 Allen 82. 
 Parker v. Dillard, N. S. xiii. 58. 50 Ala. 18. 
 Parker v. Moody, N, S, x, 532, 58 Me, 70, 
 Parker. D. Parker, N, S, xiii, 260, 65 Barb, 205, 
 Parker v. line's Ex'r, O, S, i, 632. 21 Penna, St. 
 
 306. 
 Parker's Estate, N. S. x, 408, 64 Penna, St, 307. 
 Parkhurste v. McGraw, O. S. i. 700, 24 Miss, 134, 
 Parks V. Comstock, N, S. x. 471. 59 Barb. 16. 
 Parks 'v. The State of Ohio, O. S. iv. 696. 4 
 
 Ohio St. 234. 
 Parmelee v. Simpson, N. S. vii. 60. 5 Wall. 81. 
 Parshall v. Lamoureux, N. S. ii, 186, 37 Barb. 
 
 189, 
 Parsons v. Alexander, O. S, iv, 123. 24 L. J. Q. 
 
 B. 277. 
 Parsons v. Atlanta University, N. S. xi. 396. 
 
 44 Geo. 529. 
 Parsons v. Bangor, N. S. xiii. 256, 61 Me, 457. 
 Parsons v. Brown, N. S. xi. 262. 50 N. H. 484. 
 Parsons v. Eureka Powder Works, N, S, viii, 
 
 439, 446, 48 N, H, 66, 
 Parsons v. Pestingell, N. S. vi. 184. 11 Allen 
 
 507. 
 Parsons v. Russell, N. S. ii. 695. 7 Cooley 113. 
 Parsons v. University, N. S. xi. 396. 44 Geo. 
 
 629 
 Partridge (Pattridge) v. Lott, N. S. vi. 319. 15 
 
 Mich. 251. 
 Parvin v. Capewell, N. S. Iii. 575. 9 Wr. 89. 
 Parys & Co.Vs Appeal, N. S. ii. 312. 41 Penna. 
 
 St, 278, 
 Passenger v. Thorburn, N, S, i, 308, 35 Barb. 
 
 36, 17. 
 Patnote v. Sanders, N, S, viii. 508, 41 Verm, 66. 
 Patrick v. Cowles, N. S. v. 702, 45 N. H. 553. 
 Patten's Appeal, N, S. iii, 573, 45 Penna, St. 
 
 152. 
 Patterson Horse R, R. Co, v. Mayor, N. S. xiii. 
 
 383. 9 C. E. Green 158, 
 Patterson v. N, C. R. R., N. S. ix. 581. 64 N. C. 
 
 147. 
 Patterson v. Trumbull, N. S. ix. 645. 40 Geo. 
 
 104. 
 Patterson v. Wallace, N. S. ill, 309. 44 Penna. 
 
 St. 88. 
 
TABLE OF ABSTEAOT CAS^S. 
 
 1067 
 
 Patterson v. Wyomissing Man'g Co., N. S. i. 
 
 564. 40 Penna. St. 117. 
 Pattison v. Culton, N. S. x. 748, 33 Ind, 240. 
 Pattisou 1'. Jenkins, N. S. x. 667, 669. 33 Ind. 87. 
 Pattou V. Borough of Hollidaysburg, N. S. i. 
 
 629. 40 Penna. St. 206. 
 Patton 1'. Deshon, O. S. iii. 59. 1 Gray 325. 
 Patton !'. Hervey, O. S. iil. 59. 1 Gray 119. 
 Paul V. Hazleton, N. S, xiv. i;:>9. 8 Vroom 106. 
 Paul V. Reed, N. S. xii. 668. 52 X. H. 136. 
 Peaehv v. Rowland, O. S. ii. 62, 22 L. J. (N. S.) 
 
 C. B. SI. 
 Peabody v. Flint, X, S. iil. 120. 6 Alien 52. 
 Peabody i'. Hewett, N. S. vi. 185. 52 Me, 33. 
 Peacock c. Haney, N. S. xiv. 121. 8 Vroom 
 
 179. 
 Peacock r. PerceU, N. S. iii. 440. 32 L. J. C. P. 
 
 266. 
 Pearson i'. Duane, N. S. yi. 631. 4 Wall. 605. 
 Pearson v. Wheeler, X. S, xiv. 712. 55 N. H. 41. 
 I'ec.k t>. Batohelder, N. S. vii. 637. 40 Verm. 
 
 233. 
 Peck v. Grouse, N. S. vi. 120. 46 Barb. 151. 
 Peck !', Jenness, N. S. vii. 183. 4 How. 612. 
 Peck et al, v. Jones, N. S. xii. 407. 70 Penna. 
 
 St. 83. 
 Peck !'. Newton. N. S. vi. 186. 46 Barb. 173. 
 Pecker v. Kenniston, N, S, vi. 313, 46 N, H. 488. 
 Peckham v. Hadduek, N. S. iv. 506. 36 111. 38. 
 Pedrick v. Porter, N. S. ii. 767. 5 Allen 324. 
 Peet V. Beers. O. S. i. 696. 4 Ind. 46. 
 Pelham v. Rose, N. S. ix. 51-5, 9 Wall. 103. 
 Pell V. McElroy, N. S. viii. 703. 36 Cal. 268, 
 Pell V. State of Ohio, O. S. i. 179. 3 Selden 328. 
 Pendergast v. Reed, N. S. viii. 695. 29 Md, 398, 
 Pendleton v. Hughes, N, S. xii. 660, 662, 65 
 
 Barb, 136, 
 Penguet v. Phelps. X, S, vii. 124. 48 Barb. 566. 
 Peninsular Railwav Co. n. Howard, N. S. x. 406. 
 
 20 Mich. 18. 
 Pennsylvania v. Bridge Co., O. S. ix, 298, 
 Pennsylvania Canal Co. v. Bentley, N, S, a. 
 
 746, 66 Penna, St, 30, 
 Pennsylvania Cent, R, R, Co, v. Schwarzen- 
 
 berger, N, S, iU, 572, 45 Penna, St, 208, 
 Pennsylvania R, E. Co, v. Dale, N, S, xiv, 457. 
 
 76 Penna, St. 47. 
 Pennsylvania R. R. Co. v. Parke, N. S. ii. 502. 
 
 42 Penna. St. 31. 
 Pennsylvania v. Trenton Bridge, N. S. ix. 298. 
 Pennsylvania R. R. Co. v. Weber, N. S. xiv. 526. 
 
 76 Penna. St. 157. 
 Pennypacker v. Umberger, 0. S. ii. 447. 22 
 
 Penna. St..492. 
 Penobscot Railroad Co. v. Mayo, N. S. xii. 670. 
 
 60 Me. 306. 
 Penobscot R. R. Co. v. Weeks, N. S. vi. 188. 52 
 
 Me. 436. 
 Penrose v. Erie Canal Co., N. S. viii, 59. 56 
 
 Penna. St. 46. 
 Pentz V. Citizens' P. Ins. Co., N. S. xi. 533. 35 
 
 Md. 73. 
 Pentz V. Simonson, N. S. i. 763. 2 Beasley 232. 
 People V. Albany & V. R. R. Co., N. S. ii. 121. 
 
 10 E. P. Smith (N. Y.) 261. 
 People V. Albany & Vermont E. E. Co., N. S. 
 
 ii. 246. 37 Barb. 216. 
 People V. Annis, N. S. v. 252. 13 Mich. 511. 
 People V. Auditor of P. A. of 111., N. S. iii. 314. 
 
 30 111. 434. 
 People j;. Baker, N. S. 1. 379. 35 Barb. 105. 
 People ex rel. v. Board of Sup. of Livingston 
 
 Co., X. S. V. 60. 43 Barb. 298. 
 People ex rel. v. Booth. N. S. vii. 315. 49 Barb. 31. 
 People V. Bostwick, N. S. iv. 503. 43 Barb. 9. 
 People V. Bradley. N. S. xii. 594. 64 Barb. 228. 
 People V. Carpenter, N. S, i. 502, 10 E. F, Smith 
 
 (n! Y,) 86, 
 People V. Cicotte (Cicott), N. S. vi. 639. 15 Mich. 
 
 People V. City of Brooklyn, N. S. vii. 317. 49 
 
 Barb, 136, 
 People V. Clark, 0, S. i. 180. 3 Selden (N. Y.) 
 
 S85 
 Penpie j', riemento, N, S. iii. 570. 12 E. P. 
 
 Smith (N. v.; 193. 
 
 People V. Commissioners, N. S. vi. 436. 4 Wall, 
 
 244, 
 People ex rel. v. Comm'rs of Taxes, N, S, vi, 720. 
 
 48 Barb. 157. 
 People ex ret. v. Com. Highways of Palatine, N. 
 
 S. viii. 630, 633. 53 Barb. 70. 
 People V. Contracting Board, N. S. iv. ISB, 13 
 
 E. P. Smith (N.Y.) 378, 
 People ex rel. Hackley v. Croton Aqueduct 
 
 Board, N, S, vii. 609. 49 Barb. 239. 
 People V. Cushney, N. S. v. 882. 44 Barb. 118. 
 People ex rel. Estes v. Denahy, N. S. x. 664. 20 
 
 Mich. 349. 
 People V. Denniston, N: S. i. 58. 9 E. P. Smith 
 
 (N. Y.) 247. 
 People V. Durant, N. S. v, 59. 13 Mich. 351. 
 People V. Fernandez, N. S. vi. 247. 8 Tiffany 
 
 (N. Y.) 49. 
 People V. Galesburg, K S, ix, 262, 48 IU, 485, 
 People V. Gardner, N. S, ii, 119. 10 E. P. Smith 
 
 (N. Y.) 583. 
 People ex rel. Starkweather!). Gaul, N. S. v. 380. 
 
 44 Barb. 98. 
 People V. Hammond, N. S. iii. 249. 13 Mich. 
 
 247. 
 People u. Hartwell, N. S. iii. 764. 12 Mich. 508. 
 People V. Haws. N. S. ii. 378. 36 Barb. 59. 
 People ex rel. v. Commissrs. of Highways, N. S. 
 
 viii. 630, 633. 53 Barb. 70. 
 People ex rel. Davis v. HUl, N. S. xiii. 52. 65 
 
 Barb. 170, 435. 
 People V. Holt, N. S. iv. 574. 13 Mich. 224. 
 People V. Horton, N. S. vi. 605. 39 Miss. 406. 
 People V. Hoy Yen, N. S. viii. 184. 31 Cal. 
 People V. Hurlbutt, N. S. v. 382. 41 Barb. 12G. 
 People V. Kelsey, N. S. ii. 631. 38 Barb. 269. 
 People V. Kelsev, N. S. viii. 118. 34 Cal. 
 People V. Kerr '& Mayor of N. Y., N. S. ii. 377. 
 
 37 Barb. 357. 
 People V. Kingman, N. S. ii. 24, 183. 10 E. P. 
 
 Smith (N. Y.) 569. 
 People V. Lawrence, N. S. i. 571. 36 Barb. 177. 
 People V. Lawton, N. S. ix. 6."8. 56 Barb. 126. 
 People V. Mahaney. N. S. v. 2)0. 13 Mich. 481. 
 People ex rel. Vaiiderlin v. Martin et al., N. S. 
 
 X. 411. 58 Barb. 286. 
 People, The, ex rel. Martino v. The Board, N. 
 
 S. ix. 121. 54 Barb. 145. 
 People V. Marine Court of N. Y., N. S. i. 699. 
 
 36 Barb. 341. 
 People V. Maynard, N. S. vi. 635. 15 Mich. 463. 
 People V. Mayor of Chicago, N. S. ix. 643. 51 
 
 IIL 17. 
 People V. McCaffrey, N. S. iv. 380, 42 Barb. 
 
 530, 
 People V. McCoy, N, S, ii, 702, 39 Barb, 73, 
 People V. McDonald, N, S, i, 185. 5 Cooley 160. 
 People V. Mead, N. S. ii. 249. 10 E. P. Smith 
 
 (N. Y.) 114. 
 People exrel. v. Mechanics' Aid Soc, N. S. xi. 
 
 460. 22 Mich. 86. 
 People V. Medical Soc. of the Co. of Erie., X. S. 
 
 iv. 575. 5 Tiffany (N. Y.) 187. 
 People V. Millspaugh, N. S. ii. 697. 7 Cooley 
 
 278. 
 People ex rel. v. Morgan, N. S. xiii. 128. 65 
 
 Barb. 473. 
 People V. Navarre, N. S. xi. 689. 22 Mich. 1. 
 People V. New York Gas Light Co., N. S. xii. 
 
 399, 400, 595. 64 Barb. 55. 
 People V. Northern R. R. Co., N. S. viii. 631 ; N. 
 
 S. viii. 638, 53 Barb, 98, 
 People V. Northrup, N. S, vii, C36, 60 Barb. 
 
 148, 
 People V. Pease, N. S. iv. 185. 13 E. P. Smith 
 
 (N. Y,) 46, 
 People of Michigan v. Phoenix Bank, N. S, u. 
 
 665. 7 Bosw. 20. 
 People V. Pitcher, N, S, vi, 634, 15 Mich, ,397. 
 People V. Pratt. N. S. vi, 319, 15 Mich, 184, 
 People V. Raymond, N, S, viii, 118, 34 Cal, 
 People V. Reeder, N. S. iii. 57, 11 E, P, Smith 
 
 (N, Y,) 302, 
 People V. Robertson, N, S, ii, 700, 39 Barb, 9. 
 People V. Russell. N. S, vi, 315, 
 I'eople 1', Salomon, X, S, ix. 717. 51 111. 37. . 
 
1068 
 
 TABLE OF ABSTRACT OASES. 
 
 People V. Seo'y of State, N. S. Hi. 314. 30 111. 
 
 434. 
 People V. Shennan, N. S. vil. 186. 
 People V. Shoonmaker, N. S. xii. 64. 63 Barb. 
 
 44. 
 People V. Skeehan, N. S. vii. 320. 49 Barb. 217. 
 People V. Slack, N. S. vi. 318. 15 Mich. 193. 
 People V. Steamer America, N. 8. viii. 182. 34 
 
 Cal. 
 People ex rel. Stover v. Stiner, N. 8. v. 569. 45 
 
 Barb. 66. 
 People ex rel. v. Superv. of Livingston Co., N. 
 
 S. iv. 704. 43 Barb. 298. 
 People 1). Sullivan, O. S. i. 181. 3 Selden (N. 
 
 Y.) 396. , 
 People ex rd, Bristol v. Supervisors, N. S. x. 
 
 475. 20 Mich. 95. 
 People ex rd., &c. v. Teed, N. S. vii. 254. 48 
 
 Barb. 424. 
 People V. Third Ave. R. E. Co., N. S. v. 5;i. 46 
 
 Barb. 63. 
 People V. Township Boards of Springwells, N. 
 
 S. ill. 765. 12 Mich. 434. 
 • People D.Vanderbilt.N.S.ii. 632. 38 Barb. 282. 
 People V. Village of Yonkers, N. S. iii. 124. 
 
 39 Barb. 266. 
 People v. Wattles, N. 8. v. 252. 13 Mich. 446. 
 People ex rd. South Park Comm. v. Williams, 
 
 N. S. ix. 712. 51 111. 57, 63. 
 Perchment v. Deitrich, O. 8. i. 125. 
 Perkins v. Emerson. N. 8. xi. 464. 69 Me. 319. 
 Perkins v. Moblev, O. S. iv. 633. 4 Ohio St. 668. 
 Perkins D. N. Y. Cent. R. E. Co., N. S. ii. 319. 
 
 10 E. P. Smith (N. YJ 196. 
 Perkins v. Parker, N. S. v. 318. 10 Allen 22. 
 Perkins v. Perkins, N. 8. iii. 764. 12 Mich. 456. 
 Perrin v. N. y. Cent. E. E. Co., N. S. iii. 189. 40 
 
 Barb. 66. 
 Perrin v. Reeds, N. 8. iv. 65. 35 Verm. 2. 
 Perrine v. Hotchkiss, N. S. x. 315, 847. 58 Barb. 
 
 77. 
 Perry v. Carr, N. S. ix. 636. 42 Verm. .W. 
 Pervear u. Comm'th, N. S. vii. 123. 5 Wall. 475. 
 Peterhofl; The, N. S: vii. 62. 5 Wall. 28. 
 Peters v. Light, N. 8. xiv. 682. 76 Penna. 8t. 
 
 289 
 Peterson v. Hubbard, N. S. xiii. 452. 28 Mich. 
 
 197. 
 Peterson v. Union National Bank, N. 8. vl. 631. 
 
 52 Penna. St. 206. 
 Petrie v, Vorhees' Executor, N. S. viii. 696. 3 
 
 C. E. Green 28.5. 
 Pettee v. Case, N. S. i. 382. 2 Allen 646. 
 Pettee v. Wilmarth, N. S. ii. 568. 5 Allen 144. 
 Pettigrew v. City of Evansville, N. S. ix. 126, 
 
 26 Wis. 223. 
 Pettingill v. Porter, N. S. iv. 118. 8 Allen 1. 
 Pettus V. McClannahan (McLannahan), N. S. 
 
 xiv. 646. 62 Ala. 55. 
 Pfau V. Williamson. N. S. xiv. 59. 63 111. 16. 
 Pfeffer v. Steiner, N. S. xiii. 461. 27 Mich. 537. 
 Phelps ti.'City of Watertown, N. S. xi. 397, 398. 
 
 61 Barb. 121. 
 Phelps V. McDonald. N. 8. iii. 600. 12 E. P. 
 
 Smith (N. Y.) 82. 
 Phelps V. Mansard el al., N. 8. xiii. 66. 9 C. E. 
 
 Green 19.5. 
 P. & R. Railroad Co. v. Long, N. S. xiv. 198. 75 
 
 Penna, St. 267. 
 Philadelphia v. Gilmartin, N. 8. xii. 791. 71 
 
 Penna. St. 140. 
 Philadelphia Towing Co. v. P., W. & B. R. R. 
 
 Co., O. S. V. 280. 23 How. 209. 
 Philadelphia, W. & B. Railroad Co. v. Con- 
 stable, N. S. xiii. 784. 39 Md. 119. 
 P., W. & B. R. R.v. Gessuer. O. 8. 1. 250. 
 P., W. & B. R. R. Co. V. Kerr, N. S. x. 643. 33 
 
 Md. 331. 
 P., W. & B. R. R. Co. V. Weaver, N. S. xi. 60. 34 
 
 Md. 431. 
 Phila., Wil. & Bait. Railroad v. Woelpper, N. 
 
 S. X. 411. 64 Penna. St. 366. 
 Philad'a & Reading E. E. Co. v. Yerger, N. S. 
 
 xiii, 396. 73 Penna. St. 121. 
 Philips 1.. The State of Ohio, 0. 8. iv. 635. 
 Ohio St. 122. 
 
 Phillips V. Allen, N. 8. i. 317i 2 Allen 4,53. 
 Phillips V. Ames, N. 8. ii. 698. 5 Allen IS). 
 Phillips V. Bordman, N. S. ii. 64. 4 Allen 147. 
 Phillips V. Clark, 0. 8. viii. 252. 5 Jur.N. S. 
 
 1081. 
 Phillips V. Edwards, O. S. vii. 608. 28 L. J. Ex. 
 
 52. 
 Phillips V. Evans, N. S. vi. 248. 38 Mo. 305. 
 Phillips V. People, N, S. x. 125. 57 Barb. 353. 
 Phillips V. Reeder, N. 8. vii. 765. 3 C. E. Green 
 
 Phillips V. Stauch, N. S. x. 665. 20 Mich. 869. 
 Phillips V. Tudor, N. S. iii. 184. 10 Grav 78. 
 Phillips V. Williams. N. 8. ix. 646. 39 Geo. 597. 
 Philpot V. Gruninger, N. 8. xii. 188. 14 Wall. 
 
 5TO 
 Phils'on V. Barnes, N. S. v. 379. 50 Penna. St. 
 
 230. 
 Phipps V. Boyd, N. 8. vii. 316. 64 Penna. St. 
 
 342 
 Phipps V. Tarpley, 0. 8. i. 700. 24 Miss. 597. 
 Phcenix Cotton Manf. Co. v. EuUer, N. 8. i. 504. 
 
 3 Allen 441. 
 Phoenix Ins. Co. v. Allen, N. 8. ii. 697. 7 Cooley 
 
 50L 
 Phcenix Ins. Co. v. Hamilton, N. 8. xii. 192. 
 
 14 Wall. 504. 
 Picard v. MeCormick, N. S. ii. 696. 7 Cooley 
 
 68. 
 Pickard v. Perley, N. S. iv. 442. 46 N. H. 188. 
 Pickering v. Pendexter, N. S. v. 697. 46 N. H. 
 
 69. 
 Pickett V. King, N. 8. i. 236. 34 Barb. 193. 
 Pickwick, The, O. S. i. 52. 16 Jur. 669. 
 Pier V. Duff, N. 8. x. 66. 63 Penna. St. 59. 
 Pierce v. Bank of Tejin., O. S. i. 378. 1 Swan 
 
 265. 
 Pierce v. Bryant, N. 8. ii. 509. 5 Allen 91. 
 Pierce v. C. & N. W. Railway Co., N. S. xiv. 
 
 249. 36 Wis. 283. 
 Pierce v. Cloud, N. 8. ii. 446. 42 Penna. St. 
 
 102. 
 Pierce v. Hall, N. 8. ill. 604. 41 Barb. 142. 
 Pierce v. Jaquith, N. 8. ix. 519. 48 N. H. 231. 
 Pierce v. Kinney N. 8. x. 479. 69 Barb. 66. 
 Pierce v. Lamson, N. 8. ii. 510. 5 Allen 60. 
 Pierce v. Tuttle, N. S. viii. 633. 63 Barb. 1.55. 
 Pike V. Wieting, N. 8. vii. 508, 674. 49 Barb. 
 
 314. 
 Pillow, Ex'r V. Rye, O. 8. i. 378. 1 Swan 185. 
 Pipe V. Fnlcher, O. 8. vii. .505. 28 L. J. Q. B. 12. 
 Pitkin V. Noyes, N. 8. viii. 672. 48 N. H. 294. 
 Pitman (Stewart) v. Marshall, O. 8. i. 699. 4 G. 
 
 Greene 75. 
 Pitt V. Davison, N. S. ii. 124. 37 Barb. 97. 
 Pittman v. Barret. N. 8. iii. 633. 34 Mo. 84. 
 Pitts V. Board of Sup. of Ulster Co., N. S. xii. 
 
 263. 63 Barb. 88. 
 Pittsburg, &c.. Railroad Co. v. Rose, N. S. xiv. 
 
 120. 24 Ohio St. 219. 
 Pittsburg. &c.. Railroad Co. v. Van Houten, N. 
 
 S. xiv. 589. 48 Ind. SO. 
 Plan No. 4, Inhab's of i;. Hall, N. S. xiii. 254. 
 
 61 Me. 517. 
 Plank Road Co. v. Grifiin, N. S. ii. 121. 10 E. P. 
 
 Smith (N. Y.) 160. 
 Pleasonton & Riddle's Appeal, N. 8. xiv. 263. 
 
 75 Penna. St. 344. 
 Plimpton V. Converse, N. S. ix. 578. 42 Venn. 
 
 712. 
 Plimpton V. Richards, N. 8. xi. 695. 59 Me. 115. 
 Plitt, Ex parte. O. S. ii. 701. 2 Wall. Jr. 463. 
 Plumer v. Lord. N. S. iii. 63. 5 Allen 460. 
 Plnmmer v. Erskine. N. S. x. 641. 58 Me. 59. 
 Plummer v. Sanders, N. 8. xiv. 453. 65 N H 
 
 23. 
 Plymouth, The, N. 8. v. 603. 3 Wall. 20. 
 Plympton v. Plympton, N. S. iii. 374. 6 Allen 
 
 178. 
 Polack V. Pioche, N. S. viii. 601, 608. 85 Cal 
 
 416. 
 Polhemus v. Hodson, N. S. viii. 127. 4 C. E 
 
 Green 63. 
 Polk V. Reynolds. N. 8. ix. 581. 31 Md. 106 
 Pollard V. Cleveland. N. S. viii. 702. 43 Ala. 
 
 102. 
 
TABLE OF ABSTRACT CASES. 
 
 1069 
 
 Polley V. Lennox Iron- Works, N. S. i. 247. 2 
 
 Allen 182. 
 PoUitt V. Long, N. S. x. 277. 58 Barb. 20. 
 Pollock V. Lester, O. S. vi. 59. 11 Hare 266. 
 Pomeroy's Lessee v. Bank of Indiana, N. S. iv. 
 
 54. 1 Wall 23 
 Pomeroy v. Trimper. N. S. iv. 318. 8 Allen 398. 
 Pomfret V. Perring, O. S. iii. 509. 19 Jur. 173. 
 Pond V. Gibson, N. S. ii. 446. 5 Allen 19. 
 Pope V. Bank of Albion, N. S. x. 599. 59 Barb. 
 
 226. 
 Pope's Heirs v. Ex'rs of Pope, N. S. iv. 384. 
 Pope V. Hibemia Ins. Co., N. S. xiv. l'J2. 24 
 
 Ohio St. 481. 
 Pope V. The Town of Union, N. S. vii. 701. 3 
 
 C. E. Green 282. 
 Popkins V. Sargent, O. S. vi. 185, 188. 10 Gush- 
 ing 327. 
 Porch V. Fries, N. S. vii. 699. 3 C. E. Green 204. 
 Porrett v. Porrett (Porritt n. Porritt), N. S. vii. 
 
 189. 16 Mich. 140. 
 Porter's Appeal, N. S. iii. 575. 45 Penna. St. 201. 
 Porter i'. Havens, N. S. ii. 316. 37 Barb. 343. 
 Porter (Potter) v. Cromwell, N. S. is. 60. 1 
 
 Hand <N. Y.) 287. 
 Porter V. Mayfield, 0. S. i. 639. 21 Penna. St. 
 
 268. 
 Portland v. Eichardson, N. S. vii. 446. 54 Me. 
 
 46. 
 Portsmouth v. Shaoklord, N. S. vi. 446. 46 N. 
 
 H. 423. 
 Portsmouth. The. N. S. ix. 441. 9 Wall. 682. 
 Potomac Coal Co. v. C. & P. E. R. Co., N. S. 
 
 xiu. 191. 38Md. 226. 
 Potter V. Fish, N. S. iii. 187. 10 Gray 416. 
 Potter ti. Richards, O. S. iv. 128. 24 L. J. Ch. 
 
 488. 
 Potter V. Tallman. N. S. 1. 376. 35 Barb. 182. 
 Potts V. Whitehead, N. S. ix. 318. 5 C. E. Green 
 
 65. 
 Poughkeepsie & Salt Point Plankroad Co. v. 
 
 Grifan, N. S. U. 121. 10 E. P. Smith (N. Y.) 
 •150. 
 Powell I'. Burroughs, N. S. vii. 316. 54 Penna. 
 
 St. 329. 
 Powell V. Jones, N. S. iv. 189. 42 Barb. 24. 
 Powelton Coal v. McShain, N. S. xiv. 196. 75 
 
 Penna. St. 238. 
 Power V. Hathaway, N. S. iv. 765. 43 Barb. 214. 
 Powers (Towers) v. (Silsby) Smith, N. S. viii. 
 
 633. 41 Venn. 288. 
 Powers V. Wheeler, N. S. xiv. 52. 63 111. 29. 
 Powers V. Woodstock, N. S. v. 639. 38 Verm. 44. 
 Pragoff V. Heslep & Others, O. S. i. 747. 
 Pralus V. Pacific G. & S. M. Co., N. S. viii. 608. 
 
 35 Cal. 31. 
 Prater's Adm'r v. Darby, 0. S. iii. 57. 24 Ala. 
 
 496. 
 Prather v. City of Lexington, 0. S. i. 445. 13 
 
 B. Monroe 559. 
 Prather v. Pritchard, N. S. vl. 719. 26 Ind. 6o. 
 Pratt V. Bogardus, N. S. vii. 378. 49 Barb. 89. 
 Pratt V. LanLson, N. S. i. 246. 2 Allen 275. 
 Pratt V. Philbrook, 0. S. i. 189. 33 Me. 17. 
 Pratt V. Pond, N. S. 11. 509. 5 Allen !>9. 
 Prentice v. Decker, N. S. vii. 377. 49 Barb. 21. 
 Prentice v. Dehon, N. S. v. .509. 10 Allen 353. 
 Preseott v. Borough of Duquesne, N. S. iv. 640. 
 
 48 Penna. St. 118. 
 Preseott V. Locke, N. S. xii. 262. 51 N. H. 94. 
 Preseott V. Ward, N. S. v. 505. 10 Allen 203. 
 President. Managers v. Trenton City Bridge 
 
 Co., N. S. i. 697. 2 Beas. 46. 
 Preston v. Drew. O. S. i. 189. 33 Me. 558. 
 Preston v. Dunham, N. S. xiv. 709. 62 Ala. 217. 
 Preston. Trustee v. Fryer, N. S. xiii. 268. 38 
 
 Md. 221. 
 Prerton v. Jones, N. S. v. 377. 50 Penna. St. 54. 
 Price V. Gover, N. S. xiv. 250. 40 Md. 102. 
 Price V. Hartshorn, N. S. x. 796. 5 Hand (N, 
 
 Y ) 94 
 Price K.Hickok. N. S. vl. 715. 39 Verm, 292. 
 Price V. Hopkins (Hopkin), N. S. iv. 671. 13 
 
 Mich. 318. 
 Price V. Stone, N. S. xiii. 61. 49 Ala. 643. 
 Prime v Cobb, N. S. xiv. 463. 63 Me. 200. 
 
 Primm v. Walker, N. S. vi. 255, 38 Mo. 94. 
 Prindle v. Town of Fletcher, N. S. vi. 569, 39 
 
 Verm. 265. 
 Pringle v. Spaulding, N. S. viii. 669, 570, 672. 
 
 63 Barb. 17. 
 Pritchard v. Bliek, 0. S. viii, 252. 1 F. & F. 404. 
 Proctor V. GUson, N. S. x. 200. 49 N. H. 62. 
 Proctor V. Hodgson, O. S. Iii. 700. 24 L. J. 195. 
 Proctor V. Sears, N. S. i. 690. 4 Alien 95. 
 Producer's Bank v. Farnum, N. S. ii. 444. 5 
 
 Allen 10. 
 Propeller Mohawk, N. S. ix. 123. 8 Wall. 163. 
 Proprietors of Liverpool Wharf u. Preseott, N. 
 
 S. iii. 698. 7 Allen 494. 
 Protector. The, N, S. ix. 516. 9 Wall. 687. 
 Prout V. Wiley, N. S. xiii. 460. 28 Mich. 164. 
 Public Works v. Columbia College, N. S. xiii. 
 
 327,329. 17 Wall. 621. 
 Pndney v. Passaic, N. S. xiii. 395. 8 Vroom 65. 
 Puett V. State Bank, O. S, i. 696, 4 Ind, 46. 
 Pugh V. McCormick, N. S. xii. 190, 198. 14 
 
 Wall. 361. 
 Ptillman v. The Mayor, &c., of New York City, 
 
 N. S. ix. 125. 54 Barb. 169. 
 Purdy's Appeal, 0. S. Ii. 570. 23 Penna. St. 97. 
 Purissima (5oncepcion, The, O. S. i. 63. 3 Kob. 
 
 Ad. Cas. 181. 
 Purner v. Plercy, N. S. xiv. 256. 40 Md. 212. 
 Putnam d. Hill. N. S. v. 768. 38 Verm. 85. 
 Putnam v. Lamphier, N. S. viii. 701. 36 Cal. 151, 
 Putnam v. Osgood, N. S. xi. 662. iii N. H. 192. 
 Putnam v. Osgood, N. S. xii. 596, 598. 52 N. H. 
 
 148. 
 
 Quaw V. Lameraux, N. S. xiv. 707. 36 Wis. 626. 
 Queen v. Bain, N. S. i. 446. 31 L, J. Mag. C. 88. 
 Queen v. Bulmer, N. S. iv. 312, I. C, C. R. 33 
 
 L. J. N. S. Mag. Cas. 151. 
 Queen v. Cheeseman, N. S. i. 446. 31 L. J. M. 
 
 C. 89. 
 Queen v. Gibbons, N. S. i. 447. 31 L. J. M. C. 
 
 98. 
 Queen v. Macdonald, N. S. i. 444, 31 L. J. M. 
 
 C. 67. 
 Queen v. Proud, N. S. i. 445. 81 L. J. M. C. 71. 
 Queen v. Shepherd, N. S. i. 447. 31 L. J. M. C. 
 
 102. 
 Queen «. Stanbury, N. S. i. 445. 31 L. J. M. 
 
 C 88 
 Queen's;. Wnkins, N. S. 1. 445. 31 L. J. M. C. 
 
 72. 
 Queen v. Woodward, N. S. i. 446. 31 L. J. M. 
 
 C 91 
 Queen'sbury v. Culver, N. S. xiii. 652. 19 Wall. 
 
 83. 
 Quellman v. Jacobs, O. S. i. 248. 
 Quick's Ex'r v. Quick, N. S. x. 207. 6 C. E. 
 
 Green 13. 
 Quickstep, The, N. S. ix. 508. 9 Wall, 665. 
 Quimby v. Carr, N. S. iii. 697. 7 Allen 417. 
 Quimby v. Manhattan Paper Co., N. S. xiii. 
 
 328. 9 C. E. Green 260. 
 Quinn v. Ills. Cen. Railroad Co., N. S. x. 132. 
 
 51 111. 496. 
 Qulntard v. Be Wolf, N. S. i. 181. 34 Barb, 97. 
 
 R. P. H. V. S. H., N. S. iii. 188. 40 Barb. 19. 
 Racine & M. Railroad Co. v. Farmers' Loan and 
 
 Trust Co., N. S. ix. 260. 49 Ills. 331. 
 Raed v. Kitchen, 0. S. 1. 635. 
 Ragsdale v. Hagy, 0. S. iii. 53. 9 Grat. 409. 
 Railroad Co.u. Adams, N. S.vi.718, 26Iiid.76. 
 Railroad Co. ii. Allen, N. S. ix. 442. 31 Ind. 
 
 394. 
 Railroad Co. v. Anderson, N. S. ^. 478. 20 
 
 Mich. 244. 
 Railroad Co. v. Apperson, N. S. ix. 387. 49 111. 
 
 480. 
 Railroad Co. v. B. & C. Railroad, N. S, xiv. 267. 
 
 20 Wall. 137. 
 Railroad Co. v. Baltimore Ins. Co., N. S. x. 130. 
 
 32 Md. 37. 
 Railroad Co. v. Barron, N, P, vii. 124. 5 Wnll. 90. 
 Railroad Co. v. Baum, N. S. vi. 717. 26 Ind. 70. 
 
1070 
 
 TABLE OF ABSTEACT CASES. 
 
 Railroad Co. v. Bay State I. Co., N. S. xi. 660. 
 
 50 N. H. 57. 
 Railroad Co. *. Black, O. S. i. 308. 20 L. T. 
 
 Exch. 70. 
 Eailroad Co. v. Blosburg, &o., Railroad, N. S. 
 
 xiv. 196. 20 Wall. 137. 
 Eailroad Co. v. Bowyer, N. S. xiv. 61. 45 Ind. 
 
 496. -, 
 Eailroad Co. v. Bradfleld Heirs, O. S. 1. 120. 19 
 
 Penna. St. 363. 
 Eailroad Co. v. Brown, N. S. xiii. 326. 17 Wall. 
 
 445. 
 Eailroad Co. v. Brown, N. S. xiv. 61. 45 Ind. 90. 
 Eailroad Co. v. Brownell, N. S. ii. 58. 10 E. P. 
 
 Smith (N. Y.) 345. 
 Eailroad Co. v. Butts, N. S. x. 668. 7 Kans. 308. 
 Eailroad Co. v. Campbell, 0. S. iv. 630. 4 Ohio 
 
 St. 583. 
 Eailroad Co. v. Gary, N. S. ill. 497. 12 E. P. 
 
 Smith (N. Y.) 75. 
 Eailroad Co. v. Gary, N. S. xii. 534. 37 Ind. 
 
 172. 
 Eailroad Co. v. Charlestown, N. S. iv.ll7. 8 
 
 Allen 330. 
 Eailroad Co. v. Cole, N. S. xiii. 198. 41 Ind. 331. 
 Eailroad Co. v. Constable, N. S. xiii. 784. 39 
 
 Md. 149. 
 Eailroad Co. v. Crowe, N. S. xi. 776. 19 Kans. 
 
 496. 
 Eailroad Co. v. Dale, N. S. xiv. 457. 71 Penna. 
 
 St. 47. 
 Eailroad Co. v. Del., Lao. & W. E. E. Co., N. S. 
 
 X. 350. 6 C. E. Green 287. 
 Eailroad Co. v. Donahue, N. S. xii. 405. 70 
 
 Penna. St. 119. 
 Eailroad Co. v. Dorling, O. S. vii. 704. 94 E. G. 
 
 L. R. 821. 
 Eailroad Co. v. Dorsey. N. S. xii. 735. 37 Md. 19. 
 Eailroad Co. v. Elwell, N. S. iv. 310. 8 Allen 
 
 871. 
 Eailroad Co. v. Farrell , N. S. ix. 454. 31 Ind. 408. 
 Eailroad Co. v. Farmers' Loan and Trust Co., 
 
 N. S. ix.260. 49111.831. 
 Eailroad Co. v. Fitchbnrg Eailroad Co., N. S, 
 
 iil. 260. 6 Allen 254. 
 Eailroad Co. v. Fltzpatriek, N. S. xii. 257. 36 
 
 Md. 619. 
 Eailroad Co. v. Fltzpatriek, N. S. xi. 596. 35 
 ^ Md. 32. 
 Eailroad Co. v. Fort, N. S. xiii. 331. 17 Wall. 
 
 553 
 Eailroad Co. v. Gantt. N. S. xiii. 781. 39 Md. 115. 
 Eailroad Co. v. Gessner, O. S. i. 260. 
 Railroad Co. v. Glenn, N. S. viii. 247. 28 Md. 
 
 287. 
 Railroad Co. v. Grand Trunk E. E., N. S. xiv. 
 
 393. 63 Me. 90. 
 Eailroad Co. v. Hand, N, S. x. 472. 478. 7 Kans. 
 
 380. 
 Eailroad Co. v. Herring, N. S. xii. 196. 57 111, 69. 
 Railroad Co. v. Hottenstiue, N. S. iv. 184. 47 
 . Penna. St. 28. 
 
 Eailroad Co. v. Howard, N. S. x, 406. 20 Mich. 18. 
 Railroad Co. v. Ins. Co.. N. S. x. 130 32 Md. 37. 
 Eailroad Co. v. Iron Co., N. S. xi. 660. 60 N. 
 . H. 57. 
 Railroad Co. v. Jackson, N. S. xiv. 118, 119. 21 
 
 Wall. 616. 
 Railroad Co. v. Jackson Township, O. S. iv. 702. 
 Eailroad Co. v. Kerr, N. S. x. 543. 33 Md. 331. 
 Eailroad Co. v. Langdon, N. S. xii. 785. 45 
 
 Verm. 137. 
 Railroad Co. v. Latham, Adm'r, N. S. xiv. 462. 
 
 63 Me. 177. 
 Railroad Co. i;. Loekwood, N. 8. xiii. 326. 17 
 
 Wall. 357. 
 Eailroad Co. v. Long, N. S. xiii. 781. 24 Ohio 
 
 St. 133. 
 Railroad Co. v. Long, N. S. xiv. 198. 75 Penna. 
 
 St. 257. 
 Eailroad Co. v. Long Island Railroad Co., N. S. 
 
 vii. 185. 48 Barb. 365. 
 Railroad Co. v. M. & E. R. R. Co., N. S. viii. 
 
 126. 4 0. E. Green 13. 574. 
 E.iilroad Co. v. Maguire, N. S. xiv. 118, 119. 20 
 
 WaU. 46. 
 
 Railroad Co. v. Maguire, N. S. viii. 315. 57 
 
 Penna. St. 187. 
 Railroad Co. v. Mayo, N. S. xii. 670. 60 Me. 306. 
 Railroad Co. v. Mayor, N. S. xiii. 333. 9 C. E. 
 
 Green, 168. 
 Railroad Co. v. McKinley, N. S. x, 748. 33 Ind. 
 
 274. 
 Eailroad Co. v. Montell, N. S. xii. 638. 10 Kans. 
 
 119. 
 Eailroad Co. v. Moravia, N. S. xi. 332. 64 Barb. 
 
 180. 
 Eailroad Co. v. Morris, N. S. x. 607. 7 Kans. 
 
 210. 
 Eailroad Co. •». Moye. N. S. vi. 607 . 89 Miss. 374. 
 Eailroad Co. v. Muhling, N. S. iii. 312. 30 111. 9. 
 EaUroad Co. v. Nash, N. S-. x. 535. 7 Kans. 280. 
 Eailroad Co. v. Notzki, N. S. xiv. 689. 66 111. 455. 
 Eailroad Co. v. Nunn, N. S. ix. 644. 61 111. 78. 
 Eailroad Co. v. Orendorff, N. S. xii. 785. 37 
 
 Md. 328. 
 Railroad Co. v. Parke, N. S. ii. 502. 42 Penna. 
 
 St. 31. 
 Railroad Co. D. Passaic, N. S. xiv. 259. 8 Vroom 
 
 137. 
 Eailroad Co. v. Pattison, N. S. xiii. 252. 41Ind. 
 
 312 
 Eailroad'Co. v. Philad., N. S. viii. 631. 68 
 
 Penna. St. 119. 
 Eailroad Gb.iJ. Pointer, N.S. xii 63. 9 Kans. 620. 
 Railroad Co. v. Portland Railroad Co., N. S. 
 
 xii. 121. 14 Wall. 23. 
 Eailroad Co. v. Presoott, N. S. vii. 255. 47 N. 
 
 H.62. 
 Eailroad Co. v. Eailroad Co., N. S. viii. 126. 4 C. 
 
 E. Green 13, 574. 
 Railroad Co. v. Eailroad Co., N. S. xiv. 703. 
 
 9 Vroom 17. 
 Railroad Co. v. Railroad Co., N. S. iii. 250. 6 
 
 Allen 254. 
 Railroad Co. v. Railroad Co., N. S. vii. 187. 48 
 
 Barb. 365. 
 Eailroad Co. v. Read, N. S. vi. 118, 125. 37 111. 484. 
 Railroad Co. v. Reeves, N. S. x. 63. 10 Wall. 176. 
 Railroad Co. v. Reno, N. S. vii. 121. 63 Penna. 
 
 St. 224. 
 Railroad Co. v. Richards, N. S. xi. 328. 8 Kans. 
 
 101. 
 Eailroad Co. v. Rock. N. S. vi. 444. 4 Wall. 657. 
 Eailroad Co. v. Rose, N. S. xiv. 120. 24 Ohio 
 
 St. 219. 
 Eailroad Co. v. Schumacher, N. S. viii. 699. 29 
 
 Md. 168. 
 Railroad Co. v. Schurmeir, N. S. viii. 254. 7 
 
 Wall. 272. 
 Railroad Co. v, Schwarzenberger, N. S. iil. 572. 
 
 46 Penna. St. 208. 
 Eailroad Co. v. Shea. N. S. xiv. 581. 66 111. 471. 
 Railroad Co. v. Shunefelt, N. S. ix. 62. 47 111. 
 
 497. 
 Eailroad Co. v. Simpson, O. S. iv. 696. 5 Ohio 
 
 St. 251. 
 Eailroad Co. v. Speer, N. S. viii. 63. 66 Penna. 
 
 St 325 
 Eailroad Co. v. State, N. S. ix. 453. 30 Md. 47. 
 Eailroad Co. v. State to use of Douehertv, N. S. 
 
 xii. 259. 36Md. 366. 
 Eailroad Co. v. Stephens, N. S. v. 441. 36 Mo. 
 
 150 
 Eailroad Co. v. Stephenson, N. S. xiii. 649. 24 
 
 Ohio St. 48. 
 Railroad Co. v. Stewart, N. S. viii. 121. 4 C. 
 
 E. Green 69, 343. 
 Railroad Co. v. Stout, N. S. xiii. 330. 17 Wall. 
 
 657. 
 Railroad Co. v. Strauss, N. S. xii. 731. 37 Md. 
 
 237. 
 Railroad Co. v. Sullivan, N. S.xiv. 58. 63 111. 
 
 293. 
 Railroad Co. v. Sullivant, 0. S. iv. 700. 5 Ohio 
 
 St. 276. 
 Railroad Co. v. Taft, N. S. xiii. 527. 28 Mich. 
 
 Railroad Co. v. Thomas. N. S. .x. 343. 6 C E. 
 
 Green 205. 
 Railroad Co. v. Titus, N. S. v. 184. 40 I'enna. 
 
 bt 277. 
 
TABLE OF ABSTEACT CASES. 
 
 1071 
 
 Railroad Co. ti. Town, N, S. xi. 382. 61 Barb. 
 
 180. 
 Railroad Co. v. Trustees of Jackson Township, 
 
 O. S. iv. 702. 
 Railroad Co. v. TuU, N. S. xii. 663. 37 Ind, 
 
 SU. 
 Railroad Co. v. Underbill, JJ. S. xiv. 589. 48 
 
 Ind. 389. 
 Railroad Co. v. Van Houten, N. S. xiv. 689. 
 
 48 Ind. 90. 
 Railroad Co. v. ViokaiiT, O. S. i. 121. 
 Railroad Co. v. Wand, N. S. xiv. 689. 48 Ind. 476. 
 Railroad Co, v. Watson, N. !?. vi. 716. 26 lud. 50. 
 Railroad Co. i'. Weaver, N. S. xi. 50. 34 Md. 431. 
 RaUroad Co. v. Weber, N. S. xiv. 526. 76 Penna. 
 
 St. 157. 
 Railroad Co. r. Weeks, N. S.vi. 188. 52 Me. 456. 
 Railroad Co. i'. West, N. S. xii. 596. 87 Ind. 211. 
 Railroad Co. v. Willcinson, N. S. ix. 453. ' 30 
 
 Md. 224. 
 Railroad Co. v. Woelpper, N. S. x. 411. 64 
 
 Penna. St. 366. 
 Railroad Co. v. Worthington, N. S. v. 447. 21 
 
 Md. 275. 
 Railroad Co. v. Yarwood, O. S. iii. 637. 15 lU. 
 
 468. 
 RaUroad Co. v. Yerger, N. S. xiii. 396. 73 Penna. 
 
 St. 121. 
 Railroad Co.. The Matter of N. Y. & Boston, 
 
 y. S. xi. 723. 62 Barb. 85. 
 Railway v. Apperson, N. S. ix. 387. 49 111. 480. 
 Railway Co. v. Black, O. S. 1. 308. 20 L. T. 
 
 (Exch.) 70. 
 Railway Co. v. Cole, N. S. xiii. 198. 41 Ind. 331. 
 Railway Co. v. Howard, N. S. x. 406. 20 Mich. 
 
 1«. 
 Railway Co. v. James, N. S. ix. 260. 24 Wis. 
 
 388. 
 Railway Co. v. MonteU. (Montelle), N. S. xii. 
 
 533. lOKans. 119. 
 Railway Co. v. Philadelphia, N. S. vui. 631. 58 
 
 Penna. St. 119. 
 Railway Co. v. Pointer, N. S. xii. 63. 9 Kans. 
 
 620. 
 Railwav Co. v. Railroad Co., N. S. x. 350. 6 
 
 C. E. "Green 283. 
 Rainsford v. Rainsford, N. S. ix. 718. 57 Barb. 
 
 58. 
 Ralli V. The Universal Marine Ins. Co., N. S. i. 
 
 511. 31 L. J. Ch. 313. 
 Ramborger's Adm'rs v. Ingraham, N. S. i. 61. 
 
 38 Penna. St. 146. 
 Ramsdell v. Buswell, N. S. vii. 447. 54 Me. 546. 
 Rand v. Skillen, et ux., N. S. xiv. 397. 63 Me. 
 
 103. 
 Randall, Petitioner for Mandamus, N. S. vi. 
 
 189. 11 Allen 472, 473. 
 RandaU v. Hazelton, N. S. vi. 510. 12 Allen 412. 
 Randall v. Howard, N. S. 111. 55. 2 Black 585. 
 Randall v. McLaughlin, N. S. v. 508. 10 AUen 
 
 366. 
 Randall v. Smith, N. S. xiv. 464. 63 Me. 105. 
 RandaU v. Wait, N. S. iv. 637. 48 Penna. St. 
 
 127. 
 Randegger«. Ehrhardt. N. S. ix. 714. 51 ni. 101. 
 Randell & Co. v. MoClain, Assignee, N. 8. ix. 
 
 636. 40 Ga. 162. 
 Rankin «. Wilsey, N. S. iv. 447. 17 Iowa 463, 
 Ransom v. Wetmore, N. S. ii. 765. 39 Barb. 104. 
 Ransom v. WUliams, N. S. iv. 573. 2 WaU. 313. 
 Rathbum v. Ros.s N. S. vl. 128. 46 Barb. 127. 
 Rawlins v. Wickham, O. S. vii. 566. 28 L. J. 
 
 Ch.l88. 
 Rawls V, The American Life Ins. Co., N. S. i. 
 
 636. 36 Barb. 3-37. 
 Rawson v. HaU, N. S. ix. 191. .56 Me. 142. 
 Rawson v. Sch. Dis., No. 5, in Uxbridge, N. S. 
 
 iii. 507. 7 AUen 125. 
 Ray V. Addin, N. S. xi. 59. .50 N. H. 82. 
 Ray V. City of Manchester, N. S. vi. 250. 46 N. 
 
 H. 69. 
 Eaybold v. Raybold, 0. S. i. 439, 442. 20 Penna. 
 
 St 308 
 Raymond v. Came, N. S. iv. 445. 45 N, H. 201. 
 Raymond v. Whitney, 0. S. v. 123. 5 Ohio St. 
 
 201. 
 
 Raynor (Eavner) v. Lee, N. S. x. 602, 605, 607. 
 
 20 Mich. 384. 
 Rea V. Copelin, N. S. x. 61. 47 Mo. 76. 
 Rea 1). Missouri, N. S. xiii. 327. 17 WaU. 532. 
 Eea V. Tucker, N. S. ix. 642. 51 111. 110. 
 Read V. Amidon, N. S. viii. 607. 41 Verm. 15. 
 Read v. fSlurtevant, N. S. vii. 831. 40 Verm. 
 
 621. 
 ReaU (Beall) v. Osbourn, N. S. ix. Sl9. 30 Md 8. 
 Reardon v. St. Louis Co., N. S. v. Hi. 30 Mo. 
 
 555. 
 Receiver v. Ryan, N. S. viii. 379. 52 Barb. 168. 
 Redfield v. Dana, N. S. xiv. 752. 47 Verm. lo. 
 Redgrave v. Redgrave, N. S. xiii, 259. 38 MJ. 
 
 93. 
 Reed v. Arnold, N. S. xii, 596, 596. 10 Kans. 102. 
 Reed v. BeU, O. S. 1, 443. 
 Reed v. Farr, N. S. vi. 314. 8 Tiffany (N. Y.) 
 
 Reed v. Fisher (Fish), N. S. xi. 461. 69 Me. 358. 
 Reed v. Inhabitants of Scituate, N. S. ii. 559. 5 
 
 AUen 120. 
 Reed v. Sands, N. S. ii. 186. 37 Barb. 185. 
 Reed v. Sibley, O. S. iv. 634. 5 Ohio St. 96. 
 Eeeside's Executor v. Reeside, N. S. v. 247. 49 
 
 Penna. St. 322. 
 Reeve u. Palmer, 0. S. vU. 567. 28 L. J. Ch. C. 
 
 P. 168. 
 Reeve v. Whitmore, N.'S. ui. 439. 9 Jur. N. S. 
 
 1214. 
 Reformed Prot, Dutch Church v. Brown, N. S. 
 
 ix. 190. 64 Barb. 191. 
 Reg. V. Archer, O. S. iu. 639. 19 Jur. 479. 
 Reg. V. Avery, 0. S. vii. 702. 5 Jur. N. S., part 
 
 1, 577. 
 Reg. V. Baronet & AUaine, O. S. 1. 308. 20 L. T. 
 
 (Q B.) 50. 
 Reg. V. Barthelemy, 0. S. i. 373. 20 L. T. (Q. B.) 
 
 125. 
 Reg. ". Bennett, 0. S. vii. 702. 4 Jur. N. S., part 
 
 1, 1088. 
 Reg. V. Berry, O. S. vii. 702. 5 Jur. N. b., part 
 
 1,228. 
 Reg. V. Belts, O. S. vU. 702. 5 Jur. N. S., part 1, 
 
 274. 
 Reg. V. Bette, O. S. vii. 512. 28 L. J. M. C. 69. 
 Reg. V. Blackburn, O. S. i. 373. 20 L. T. BaU C. 
 
 227. 
 Reg. V. Christopher, O. S. vii. 509. 28 L. J. M. 
 
 C. 35. 
 Reg. V. Cunningham, O. S. vii. 703. 5 Jur. N. 
 
 S., part 1.202. 
 Reg. V. Dugdale, 0. S. i. 374. 20 L. T, 219. 
 Reg. V. Fletcher, 0. S. vii. 703. 5 Jur. N. S., 
 
 part 1, 179. 
 Reg. V. Fletcher, 0. S. vii. 512. 28 L. J. M. C. 
 
 85. 
 Reg. V. Gardner, N. S. iii. 693. 1 L. & C. C. C. 
 
 243. 9 Cox C. C. 253. 
 Reg. 11. Goodenough, 0. S. u. 116. 21 L. T. ISO ; 
 
 ICom. L. Rep. 509. 
 Reg. V. Henaon, 0. S. 1. 307. 20 L. T. 63; 16 J. 
 
 P. C. B. 711. 
 Reg. V. Hilton, 0. S. vii. 703. 5 Jur. N. S., part. 
 
 1.47. 
 Reg. V. Keith, 0. S. iii. 639. 24 L. J. Mag. Cas. 
 
 109. 
 Reg. V. Manning & Smith, 0. S. i. 374. 16 J. P. 
 
 760. 
 Reg. V. Morgan, O. S. ii. 118. 6 Cox Cr. Cas. 
 
 107. 
 Reg. V. Morrison, O. S. vii. 702. 5 Jur. N. S., 
 
 part 1, 604. 
 Reg. V. Newman, O. S. 1. 307. 20 L. T. fQ. B.) 04. 
 Reg. V. Newton, 0. S. iv. 125. 24 I,. J. (Q. B.) 246. 
 Reg. V. Noon, O. S. il. 116. 6 Cox Cr. Cas. 137. 
 Reg. V. Gates, 0. S. ui. 699. 1 Jur. 429. 
 Reg. V, Owen, O. S. ii. 117. 6 Cox. Cr Cas. 105. 
 Keg. V. Perry, O. R. iii. 699. 1 .Tur. 40R 
 Reg. V. Pierce, O. S. i. 373, 374. 376. 20 L. T. 182. 
 Reg. V. Povey. O. .R. i. .373. 16 J. P. 745. 
 Reg. V. RUev, 0. S. i. .S74. 17 J. P. 09. 
 Reg. V. Smith, N. S. iii. 693. 1 L. & C— C. C. 168. 
 Beg. V. Tavlor, O. S. ii. 117. 6 Cox Cr. Cas. .";8. 
 Beg. V. Thompson. N. S. iii, 693. 32 L. J. M. C. 
 
 53; Ih.&C. C. C. 225 ; 9 Cox C. C. 244. 
 
1072 
 
 TABLE OF ABSTRACT CASES. 
 
 Reg. V. Treakley, O. S. ii. 118. 6 Cox Cr. Cas. 
 
 75. 
 Eeg. V. White, O. S. ii. 116. 22 L. jr.. M. C. 122; 
 
 21 L. T. 159 ; 17 J. R 391 ; 1 Com. L. Rep. 489; 
 
 17 Jur. 636. 
 Eegina v. Collins, N. S. iv. 310. 33 L. J. N. S. 
 
 Mag. Cas, 177. 
 Eeid 11. Bost, O. S. iv. 445, 446. 13 Texas 241. 
 Reid i". GoSdwin (Godwin), N. S. xi. 333. 43 
 
 Ga. 527. 
 Eeilly v. Smith, N. S. xiv. 320. 10 C. E. Green 
 
 158. 
 Reinskopf v. Eogge, N. S. xii. 531. 37 Ind. 207. 
 Reis V. Helman, N. S. xlv. 648. 260hio St. 180. 
 Eeitz's Appeal, N. S. x. 414. 64 Penna. St. 162. 
 Eemson et al v. People, N. S. x. 126. 57 Barb. 
 
 324. 
 Renaud v. O'Brien. N. S. Ti. 255. 8 Tiffany (N. 
 
 Y.) 99. 
 Eenfroe v. McDaniel, N. S. ix. 639. 40 Ga. 131. 
 Reppy V. Heppy, N. S. x. 65. 46 Md. 571. 
 Renter v. Electric Telegraph Co., O. S. t. 566. 
 
 6 Ell. & 31. 341. 
 Renter v. Telegraph Co., 0. S. v. 566. 6 Ell. & 
 
 Bl. 341. 
 Reutcn v. Maryott & Others, N. S. x. 280. 6 C. 
 
 E. Green 123. 
 Reynold's Adm'r v. Darling, N. S. iv. 382. 42 
 
 Barb. 418. 
 Reynold's Case, O. S. ii. 698. 2 Wall., Jr. 145. 
 Reynolds v. Green, N. S. ii. 126. 10 Cooley 355. 
 Reynolds v. Kenyon, N. S. v. 181. 43 Barb. 
 
 585. 
 Reynolds v. Reynolds, N. S. i. 568. 3 Allen 605. 
 Rheel v. Hicks, N. S. iii. 56. 11 E. P. Smith 
 
 (N. Y.) 289. 
 Rnines's Adm'rs v. Evans, N. S. x. 794. 66 
 
 Penna. St. 192. 
 Rhoades v. Castner, N. S. vi. 320. 12 AUen. 
 
 130. 
 Rhodes v. Childs. N. S. x. 347. 64 Penna. St. 
 
 18. 
 Rice V. Filene, N. S. iii. 260. 6 Allen 230. 
 Rice V. Groff, N. S. vlii. 634. 68 Penna. St. 116. 
 Rice V. Nickerson, N. S. iv. 703. 9 Allen 478. 
 Rich V. Boston & W. R. R. Co., N. S. vi. 320. 12 
 
 Allen 141. 
 Rich V. Errol, N. S. 724. 61 N. H. 350. 
 ■Rich V. Shuman. N. S. ii. 635. 41 Penna. St. 37. 
 Richard v. Brehm. N. S. xiu. 393. 73 Penna. 
 
 St. 140. 
 Richards v. Darst, N. S. ix. 711. 61 111. 140. 
 Richards v. Nightingale, N. S. iv. 502. 9 Allen 
 
 149. 
 Richards ti. Sanford, O. S. v. 313. 2 E. D. Smith 
 
 (N. Y.) 394. 
 Richards v. The Commonwealth, N. S. i. 665. 
 
 40 Penna. St. 148. 
 Richards v. Warring, N. S. ii. 701. 39 Barb. 42. 
 Richardson ii. Abendroth, N. S. iv. 764. 43 
 
 Barb. 162. 
 Richardson v. Boynton, N. S. vi. 314, 320. 12 
 
 Allen 138. 
 ■ Richardson v. Farmer, N. S. v. 447. 36 Mo. 35. 
 Richardson v. Hogg, N. S. i. 61. 38 Penna. St. 
 
 153. 
 Richardson v. Kier, N. S. viil. 192. 34 Cal. 
 Richardson v. Montgomery, N. S. v. 187. 49 
 
 Penna. St. 203. 
 Richardson v. Pulver, N. S. xii. 123, 126. 63 
 
 Barb. 67. 
 Richard-son v. Wallis. N. S. ii. 510. 6 Allen 78. 
 Richardson v. Young, N. S. i. 62. 38 Penna. 
 
 St, 169. 
 Richmond v. CoUamer, N. S. v. 637. 38 Verm. 
 
 68. 
 Richmond v. Gray, N. S. 1. 500. 3 Allen 26. 
 Richmondville Union Seminary u. McDonald, 
 
 N. P. vi. 119. 7 Tiffanv (N. Y.) 279. 
 Eichter v. Koster, N. S. xiv. 67. 46 Ind. 440. 
 Eickit's Trust, In re, 0. S. vi. 60. 11 Hare 299. 
 Riddle et al. v. Cheadle, N. S. xiv. 762. 25 Ohio 
 
 St. 278. 
 Riddle v. Littlefleld. N. S. xiv. 123. 63 N. H. 
 
 mx 
 
 Riddle v. Tidball, O. S. ii. 120. 
 
 Ridley v. Ridley, O. S. 1. 699. 24 Miss. 648. 
 Riggs V, Johnson County, N. S. vii. 572. 6 
 
 Wall. 166. 
 Riley v. Butler, N. S. xii. 827. 36 Ind. 51. 
 Riley v. Johnson, O. S. ii. 379. 13 Geo. 260. 
 Riley v. Pierce. N. S. xiii. 392. 60 Ala. 93. 
 Riley's Admins.^. Riley, N. S. viii. 186. 4 C. 
 
 E. Green 229. 
 Eiley v. Wittiker (Whittiker), N. S. ix. 714. 49 
 
 N. H. 145. 
 Eindskopf II. Farmers' Loan & T. Co., N, S. x. 
 
 277. 58 Barb. 36. 
 Eing V. Billings et al., N. S. x. 134. h\ 111. 475. 
 Ripley v. Davis, N. S. vi. 320. 15 Mich. 75. 
 Ripley v. Harris, N. S. xii. 467. 3 Bis. 199. 
 Rith V. Washington Ins. Co., N. S. ill. 762. 41 
 
 Barb. 353. 
 Rittenhouse i). I. L. of Telegraph, N. S. x. 800. 
 
 6 Hand (N. Y.) 263. 
 Rittenhouse v. Kemp, N. S. xii. 600. 37 Ind. 
 
 258. 
 Ritter's Appeal, O. S. ii. 572. 23 Penna. St. 95. 
 Eitter v. Brendlinger, N. S. viii. 638. 58 Penna. 
 
 St. 68. 
 Eitter v. Gates, O. S. i. 119. 
 Rivers v. Charlton (Carlton), N. S. xiil. 68. 50 
 
 Ala. 40. 
 Eiverview Cemetery Co. v. Turner, N. S. xiii. 
 
 198. 9 C. E. Green 18. 
 Eoach V. La Farge, N. S. v. 191. 43 Barb. 616. 
 Eoach V. Summers, N. S. xiv. 199. 20 Wall. 165. 
 Road from Greensburg, O. S. i. 124. . 
 Road in Indiana Township. O. S. ii. 122. 
 Robb V. Brachmann, N. S. xiii. 650. 24 Ohio 
 
 St 3 
 Rob'eris v. Bethell, 0. S. i. 306. 20 L. T. (C. B.) 
 
 80. 
 Roberts v. Eastern Co. Railway, 0. S. viii. 250. 
 
 1 F. & F. 460. 
 Roberts v. Fisher et al., N. S. viii. 638. 53 Barb. 
 
 69. 
 Roberts v. Fisher, N. S. xiii. 261. 65 Barb. 303. 
 Roberts v. Graham, N. S. vii. 377. 6 Wall. 578. 
 Roberts v. Knights, N. S. iii. 697. 7 Allen 449. 
 Roberts v. Lund, N. S, xii. 731. 45 Verm. 82. 
 Roberts v. MuUenix, N. S. xii. 120. 10 Kans. 22. 
 Roberts v. Smith, O. S. v. 750. 24 Jur. 469. 
 Roberts v. The Board of County Commission- 
 ers, N. S. xii. 121. 10 Kans. 29. 
 Robertson v. Knapp, N. S. vi. 266. 8 Tiffany 
 
 ■(N. Y.) 91. 
 Robertson v. Reed, N. S. iv. 252. 47 Penna. St. 
 
 115. 
 Robertson v. Rodes, O. S. i. 444. 13 B. Monroe 
 
 325 
 Robins v. Chicago, N. S. vi.-633. 4 Wall. 657. 
 Robins v. Fuller, N. S. ii. 186. 10 E. P. Smith 
 
 (N. Y.) 570. 
 Robinson's Estate (Robinson v. Robinson), N. 
 
 S. vi. 720. 39 Verm. 267. 
 Robinson v. Atlantic G. W. R. Co., N. S. x. 796. 
 
 66 Penna. St. 160. 
 Robinson et al. v. Baugh, N. S. xiv. 686. 31 
 
 Mich. 290. 
 Robinson v. Drummond, 0. S. Iii. 56. 24 Ala. 
 
 174. 
 Eobinson v. Flint, N. S. x. 343, 346. 58 Barb. 
 
 100. 
 Eobinson v. Larrabee, N. S. xiv. 453. 63 Me. 
 
 116. 
 Eobinson v. N. Y'. Cent. E. R. Co., N. S. xii. 
 
 664. 65 Barb. 146. 
 Eobinson v. E. Co., N. S. x. 796. 66 Penna. St. 
 
 160. 
 Eobinson v. Robinson, N. S. vi. 636. 16 Mich. 
 
 79. 
 Robinson v. Rutter, O. S. iv. 123. 24 L. J. (Q. B.) 
 
 260. 19 Jur. 823. 
 Robinson v. Ryan, N. S. ill. 58. 11 E. P. Smith 
 
 (N. Y.) 320. 
 Eobinson v. Safford. N. S. x. 133. 57 Me. 163. 
 Robinson v. Sanders, O. S. i. 790. 24 MLss. 391. 
 Eobinson, Adm'r v. Sherwin, Ex. of Johnson. 
 
 N. S. iv. 574. 36 Verm. 69. 
 Robinson v. Wheeler, N. S. xii. 322. 51 N. H. 
 884. 
 
TABLE OF ABSTEACT 'CASES. 
 
 1073 
 
 Rob Roy, The, 0. S. i. 51. 8 Rob. Ad. Cas. 190. 
 ftob.sou V. The Huntress, O. S. ii. 700. 2 Wall 
 
 Jr. 59. 
 Rochester i'. Eriok-son, N. S. vi. 123. i6 Barb. 92. 
 Rock V. Stinger, N. S. xii. 406. 36 Ind. 346. 
 Rockafellow v. Baker, N, s. ii. 313. 41 fenna 
 
 St. S19. 
 Rockingham Savings B. v. Portsmouth, N. S 
 
 xii. 536. 52 N. H. 17. 
 Rockland Water Co. v. Phillsbury, N. S. xii. 
 
 668. 60 Me. 425. ' 
 
 Roekport v. Waldeu, Ex'r, N. S. xiv. 393. 54 
 
 N. H. 167. 
 Rockwell, Ex. v. Neariug, N. S. vi. 379. 8 Tif- 
 fany (S. Y.)302. 
 Rodee V. Wade, N. S. vi. 447. 47 Barb. 53. 
 Rodman v. Thalheimer, N. S. xiv. 199. 75 
 
 Renna. St 232. 
 Rodrigues v. Melhuish, 0. S. iil. 128. 23 L. T. 
 
 177. 
 Rogers 1;. Abbott et al., N. S. xii. .532. 37 Ind. 
 
 138. 
 Rogers v. Burlington, N. S. vi. 638. 3 Wall. 
 
 6.54. 
 Rogers o. Carev. X. S. x. 743. 47 Mo. 232. 
 Rogers 0. Dauiell. N. S. iv. 117. 8 .\Uen 313. 
 Rogers v. Hogan, N. S. x. 664. 58 .Me. 305. 
 Rogers t>. Lyon el al., N. S. xii. 593. 64 Barb. 
 
 373. 
 Rogers v. Ward, N. S. iv. 313. 8 Allen 387. 
 Roggen V. Avery, N. S. xii. 122. 63 Barb. 65. 
 Rolin V. Stewart, O. S. iii. 123. 23 L. J., C. P. 
 
 148. 
 Rollings V. Cate, N. S. x. 198. 1 Heiskell 97. 
 Rollins V. Horn. N. S. iii. 882. 44 N. H. 591. 
 Romalne v. Hendrickson, Ex., N. S. xiii. 328. 
 
 9 G. E. Green 231. 
 Roman Catholic German Church of the Holy 
 Cross of Albany v. Wachter, N. S. iv. 192. 42 
 Barb. 43. 
 Roosevelt v. Draper, N. S. i. 180. 9 E. P. Smith 
 
 (N. Y.) 318. 
 Ropes V. Lane. N. S. iv. 446. 9 Allen 502. 
 Rose V. Bell, X. S. ii. 560. 38 Barb. 25. 
 Rose V. The Persee & Brooks P. W., N. S. i. 318. 
 
 29 Conn. 2)6. 
 RO.SS V. Boston & W. R. R. Co., N. S. iii. 251. 
 
 6 Allen 87. 
 Ros< !'. Butler, N. S. viil. 252. 4 C. E. Green 
 
 294 
 Rosseel v. Wickham, N. S. i. 700. 36 Barb, 386. 
 Ro5.sire v. City of Boston N. S. i. 691. 4 Allen 
 
 67. 
 Rothwell V. Dewess, N. S. iii. 50. 2 Black 613. 
 Rouch !'. Zehring, N. S. viii. 697. 69 Penna. 
 
 St. 74. 
 Round V. Donnell & Saxton, N. S. viii. 575. 
 
 Roundy v. Thatcher, N. S. xi. 262. 49 N. H. 
 
 526. 
 Rowan v. Sharpe's Rifle-Manf g Co., N. S. i. 381. 
 
 29 Conn. 282. 
 Rowan v. State. N. S. xii. 189. 30 Wis. 129. 
 Rowan v. State Bank, N. S. xiii. 52. 45 Verm. 
 
 160. . 
 Rowe V. tangley.'N. S. ix. 518. 48 N. H. 391. 
 Rowland ». Goldsmith, O. S. i. 632. 2 Grat. 278. 
 Rowland v. Slate & Moyer, N. S. viii. 632. 58 
 
 Penna. St. 196. 
 Rowles V. Hoare, N. S. xl. 590, 595. 61 Barb. 
 
 266. 
 Royce v. Burt, N. S. iv. 252. 42 Barb. 329. 6.55. 
 Rucker v. Robinson, N. a. vi. 255. 38 Mo. 154. 
 Ruckman v. Decker, N. S. xii. 468. 8 C. E. 
 
 Green 283. 
 Rue V. Perrv, N. S. xii. 53. 63 Barb. 40. 
 Rugg V. Hale, N. S. vii. 638. 40 Verm. 138. - 
 Ruggles V. Fay, N. S. xiv. 260. 31 Mich. 141. 
 Ruggles V. Simonton, N. S. xii. 461. 3 Bis. .325. 
 Rundle v. Baltimore, N. S. viii. 313. 28 Md. 
 
 356. 
 Rundle v. Canal Co., O. S. i. 246. 14 Howard 
 
 80. 
 Rushton V. Rowe, N. S. x. 844. 61 Penna. St. 63. 
 Russ V. George, N. S. v. 700. 45 N. H. 467. 
 Russ V. Steele, N. S. vii. 703. 40 Verm. 310. 
 68 
 
 Russell V. Allen, N. S. i. 57. 2 Allen 42. 
 Ku.^si-11 r. Brown. N. S. xiv. .527. 63 Me. 203. 
 Knssell I', crarr, N. S. viii. 314. 38 Geo. 459. 
 Russell 11. Church, N. S. x. 542. 65 Peuna. St. 9. 
 Russell 1'. Koehle, N. S. xiv. 579. 66 111. 459. 
 Russell V. Place, 0. S. iii. 126. 23 L. .1. 441. 
 Russell V, Scudder, N. S. iv. 183. 42 Barb. 31 
 Russell V. Sweezey, N. S. xi. 458, 460. 22 Mich. 
 
 235. 
 Rust V. Billingslea, N. S. xi, 332. 44 Ga. 306 
 Rust i', Nottidge, O. S. i. 308. 20 L. T. (Q. B.j 92. 
 Rutherlbrd 0. Geddes, N. S. vl. 435. 4 Wall. 220 
 Ryan t). Bindley. N. S, Iv. 54. 1 Wall. 66. 
 Ryan v. Dix, N. S. vi. 122. 7 Tiffany 307. 
 Ryan v. McMahon, 0. S. i. 443. 20 Penna. St. 329. 
 Ryder, Adm'r v. Hulse, N. S. ii. 250. 10 E. P. 
 
 Smith (N. Y.) 372. 
 
 St. John's Church of Erie v. Hanns, O. S. ii. 
 
 182. 31 Penna. St. 9. 
 St. Martin v. Thrasher, N. S. vii. 764. 40 Verm. 
 
 460. 
 St. Nicholas Ins. Co. v. Howe, N. S. ii. 564. 7 
 
 Bosw. 450. 
 Sackett v. Spencer, N. S. x. 533. 65 Penna. St. 
 
 89. 
 Safford v. Kingsley, N. S. vii. 830. 40 Verm. 
 
 506. 
 Sage V. Harpending, N. S. vii. 315, 574. 49 Barb. 
 Sage V. Walker, N. S. iii. 765. 12 Mich. 425. 
 Sagendorph v. Shult. N. S. iii. S04. 41 Barb. 102. 
 Saline Co. Subscription, Matter of, N. S. ix. 
 
 318. 45 Mo. 52. 
 Salmon Palls Manufr. Co. v. Goddard, O. S. i. 
 
 376. 14 Howard, 447. 
 Saltmarsh v. Candia. N. S. xi. 266. 51 N. H. 71. 
 Saltonstall v. Sanders, N. S. vi. 184. 11 Allen 
 
 446. 
 Salt Sp. Bank v. Syracuse Sav. Inst, N. S. xi. 
 
 591. 62 Barb. 101. 
 Sample c. Barnes, 0. S. i. 186. 14 Howard 70. 
 Sanborn v. Murphy, N. S. ii, 659. 50 N. H. 65. 
 Sandford v. Hayes, N. S. vi. 637. 52 Penna. St. 
 
 26. 
 Sandford v. Travers, N. S. ii. 667. 7 Bosw. 498. 
 Sands v. Bontwell, N. S. iii. 636. 12 E. P. Smith 
 
 (N. Y.) 233. 
 Sands Ale Brewing Co., In re, N. S. xiii. 193. 
 
 3 Bis. 175. 
 Sanford v. Eighth Av. R. R. Co., N. S. i. 58, 59. 
 
 9E. P.Smith (N. Y.)S43. 
 Sanford ». Sanford, N. S. xi. 458, 594. 61 Barb. 
 
 293. 
 Sankey & Shorter v. Hall, M. & Co., N. S. xi. 
 
 385. 44 Ga. 228. 
 Sargent v. Birchard & Page, N. S. xi. 64. 43 
 
 Verm. 670. 
 Sargent v. Cornish. N. S. xiv. 324. 64 N. H. 18. 
 Sargent v. Courrier, N. S. xiv. 685. 66 111. 245. 
 Satterlee v. Melick, N. S. xiv. 679. 76 Penna. 
 
 St. 62. 
 Satterthwaite's Appeal, N. S. ii.447. 42 Penna. 
 
 St. 25. 
 Saner v. Schulenberg, N. S. x. 478. 33 Md. 288. 
 Saul V. Jones, 0. S. vii. 607. 28 L. J, (Q. B.) 37. 
 Saulett V. Shepherd, N. S. vi. 630. 4 Wall. -502. 
 Saunders v. Osgood, N. S. v. 698. 46 N. H. 21. 
 Savage v. Holvoke, N. S. xi. 461. 69 Me. .345. 
 Savage v. O'Niel, N. S. iv. 880. 42 Barb. 374. 
 Savage v. Walshe, O. S. iv. 252. 26 Ala. 619. 
 Savannah v. CuUens, N. S. viii. 314. 38 Geo. 
 
 334 
 Savery v. Sypher. N. S. vii. 571. 6 Wall. 157. 
 Savings Bank v. Portsmouth, N. S. xii. 536. 52 . 
 
 N. H. 17. 
 Savings Society v. Fairhaven Bank, N. S. iv. 
 
 511. 9 Allen 175. 
 Sawyer v. Chambers, N. S. v. 191. 48 Barb. 622. 
 Sawver 1). Chambers, K. S. v. 316, 381. 44 Barb. 
 
 42." 
 Sawyer v. Cox, N. S. xiv. 60. 63 111. 180. 
 Sawyer v. Hannibal & St. Jo. R. R. Co., N. S. 
 
 vi, 63. 37 Mo. 240. 
 Sawyer v. Hoag, Assignee, N. S. xiii. 327. 17 
 Wall. 610. 
 
1074 
 
 TABLE OF ABSTEACT CASES. 
 
 Sawyer v. Hovey, N. S. i. 604. 3 Allen 331. 
 Sawyer v. Pawner's Bank, N. S. 3i9. 6 Allen 
 
 207. 
 Saivyer v. Wilson. N. S. xiii. 261. 61 Me. 529. 
 Sawyer v. Wiswell, N. S. iv. 704. 9 Allen 39. 
 Saxton V. Dodge, N. S. x. 124. 57 Barb. 84. 
 Sayre v. Prazier. N. S. vi. 486. 47 Barb. 26. 
 Scaife v. Beall, N. S. xi. 331. 43 Geo. 333. 
 .Schaefer v. Bait. Mar. Ins. Co., .N. S. x. 410. 33 
 
 Md. 109. 
 Scheer v. Keown, N. S. xiii. 689. 34 Wis. 349. 
 Schefther v. Renter, N. S. ii. 61. 37 Barb. 44. 
 Scheitlin v. Stone, N. S. v. 188. 43 Barb. 634. 
 Schilling v. Durst, N. S. ii. 447. 42 Penna. St. 
 
 126. 
 SoMessinger v. Dickinson, N. S. ii. 508. 5 Allen 
 
 47. 
 Schley, Ex'rx v. Merritt, N. S. xii. 784. 37 Md. 
 
 352. 
 Schmidt V. Weidman, N. S. j^. 203. 63 Penna. 
 
 St. 173. 
 Schnepf's Appeal, N. S. iy. 189. 47 Penna. St. 
 
 37. 
 Schofleld V. Ferrers, N. S. Iv. 443. 47 Penna. 
 
 St. 194. 
 Scholes V. Ackerland, O. S. iii. 636. 13 III. 660. 
 School Directors v. Ray, O. S. ii. 122. 
 School District v. Sherburne, N. S. ylii. 668. 48 
 
 N, H. 52. 
 Schooley v. Fletcher, N. S. xiv. 62. 46 Ind. 86. 
 Schuchardt v. Aliens, N. S. iv. 63, 116. 1 Wall. 
 
 359. 
 Sehulenberg v. Harriman, N. S. xiv. 459, 464. 
 
 21 WaU. 44. 
 SchuU i>. Murray, N. S. x. 128. 32 Md. 9. 
 Schumm v. Seymour, N. S. xiii. 331. 9 C. E. 
 
 Green 143. 
 Schuylkill Nav. Co. v. Robeson, O. S. i. 636. 
 Schwamble v. The Sheriff, O. S. ii. 119. 22 
 
 Penna. St. 18. 
 Schwarz v. Stein, N. S. viii. 702. 29 Md. 112. 
 Scotia, The, N. S. xii. 186. 14 Wall. 170. 
 Scott II. C. R. R. & Bank Co. Georgia, N. S. viii. 
 
 310. 52 Barb. 46. 
 Scott V. Duncombe, N. S. vii. 381. 49 Barb. 73. 
 Scott V. Liverpool Corporation, O. S. vii. 566. 
 
 28 L. J. Ch. 230. 
 Scott V. Myatt & Moore, 0. S. iii. 57. 24 Ala. 
 
 489. 
 Scott V. Ocean Bank, N. S. i. 120. 9 E. P. Smith 
 
 (N. Y.) 289. 
 Scott V. People, N. S. xi. 661. 62 Barb. 62. 
 Scott V. Pilkington, N. S. ill. 442. 2 B. & S. 11. 
 Scott iJ.^imons, N. S. xiv. 646. 54 N. H. 426. 
 Scott V. Strobach, N. S. xiii. 461. 49 Ala. 477. 
 Scotthom V. Railroad Co., O. S. ii. 60. 22 L. J. 
 
 (N. S.) Exch. 121. 
 Scranton v- Clark, N. S. iii. 124. 39 Barb. 273. 
 Scribner v. Kelley, JSf. S. ii. 569. 38 Barb. 14. 
 Scruggs V. Luster, N. 8. x. 196. 1 Heiskell 150. 
 Scudder's Exec's v. Vanarsdale, N. S. 1. 762. 2 
 
 Beasley 109. 
 Scull r. Mason & Co., N. S. ii. 636. 43 Penna. 
 
 St. 99. 
 Scale V. Soto, N. S. viii. 509. 35 Cal. 102. 
 Seaman v. Hersbrouck, N. S. i. 311. 35 Barb. 
 
 1.51. 
 Sears v. Conover. N. S. i. 241. 34 Barb. 330. 
 Sears v. Wingate, N. S. i. 501. 3 Allen 103. 
 Seaver v. Duraut, N. S. vi. 718. 39 Verm. 103. 
 Seccomb v. Provincial Ins. Co., N. S. v. 668. 10 
 
 Allen 306. 
 Second National Bank v. Williams, N. S. Iv. 
 
 570. 13 Mich. 282. 
 Secretary v. McGarrahan, N. S. ix. 681. 9 Wall. 
 
 298. 
 Seegar ii. Harrison, N. S. xiv. 590. 25 Ohio St. 
 
 14. 
 Seeger's Ex'r v. Seeger, N. S. x. 280. 6 C E. 
 
 Green 90. 
 Seevers v. Clement. N. S. viii. 314. 28 Md. 426. 
 Seighortner v. Weissenborn, N. S. ix. 388. 5 0. 
 
 E. Green 172. 
 Sellers v. Botsford (Bottsford), N. S. ii. 570. 11 
 
 Mich. 69. 
 Sellers v. Burk, N. S. iv. 442. 47 Penna. St. 344. 
 
 Sellers v. Holman, O. S. i. 440. 20 Fenna. St. 
 
 321. 
 Seminary v. Welch, N. 8. ii. 630. 38 Barb. 221. 
 Senior v. Ward, O. S. rii. 668. 28 L. J. (.Q. B.) 
 
 139. 
 Sennott, Adm'r v. Homer, N. S. iii. SIS. 30 111. 
 
 429. 
 Sequin v. Peterson, N. S. xiii. 58. 45 Verm. 
 
 255. 
 Sessions v. Meserve, N. S. v. 699. 46 N. H. 167. 
 Severance v. Healey, H. S. xi. 663. 50 N. H. 
 
 448. 
 Severance v. Nealey (Healey), N. S. xi. 331. 50 
 
 N. H. 448. 
 Severy v. Nye, N. S. x. 667. 58 Me. 246, 
 Sevier v. Haskell, N. S. xii. 120. 14 Wan. 12. 
 Seybert v. Pittsburg, N. S. iii. 629. 1 Wall. 272. 
 Seymour v. Bajlev, N. S. xiv. 585. 60 111. 288. 
 Seymour v. Frees, N. S. ix. 198. 8 Wall. 202. 
 Seymour v. Scott. N. S. iii. 438. 32 L. J. Exch. 
 
 61; 1H.&C.219; 8L.T.N.S. 511; 9Jur.N. 
 
 S 522 
 Seymour v. Stnrgess, N. S. iii. 498. 12 E. P. 
 
 Smith (N. Y.) 134. 
 Shaffer u Mason, N. S. v. 122. 43 Barb. 501. 
 Shaffuer, Adm'r v. Briggs, N. S. xii 404. 36 
 
 Ind. 55. 
 Shafner (Shafer) t. Eushnell, N. S. ix. 123. 24 
 
 Wis 372. 
 Shatter & Ebling's Appeal, K S. ii. 634. 43 
 
 Penna. St. 83. , 
 Shankiland's Appeal, N. S. iv. 320. 47 Penna. 
 
 St. 113. 
 Shannon v. Howard Mut. B. Ass., N. S. xii. 187. 
 
 36 Md. 383. 
 Shannon v. Shannon, N, S. ii. 180. 4 Allen 
 
 134. 
 Shannon's Case, N. S. ix. 512. 48 N. H. 407. 
 Shapland v. Nash. O. S. ii. 670. 
 Sharman v. Howell, N. S. ix. 509. 40 Ga. 257. 
 Sharswood v. McClellan, O. S. ii. 572. 
 Shartel's*Appeal, N. S. x. &52. 64 Penna. St. 
 
 26. 
 Shaw V. Coffin, N. S. x. 604. 58 Me. 264. 
 Shaw V. Neale, O. S. iv. 127. 24 L. J. Chanc. 
 
 563. 
 Shaw V. Shaw, N. S. xi. 336. 49 N. H. 633. 
 Shay V. Henk, N. S. v. 63. 49 Penna. St. 79. 
 Shearer v. Gelty, O. S. i. 249. 20 Penna. St. 12. 
 Shearer v. Paine. N. S. vi. 442. 12 Allen 289. 
 Sheboygan Co. v. Parker, N. S. v. 506. 3 Wall. 
 
 93. 
 Sheets r, Selden, N. S. viii. 443. 7 Wall. 416. 
 Sheik V. Mcllroy, O. S. i. 123. 20 Peima. St. 25. 
 Shelbume r. Lelsinger, N. S. xiv. 647. 62 Ala. 
 
 96. 
 Sheldon v. Adams, N. S. iii. 503. 41 Barb. 54. 
 Sheldon v. Atlantic Ins. Co., N. S. iii, 636. 12 
 
 E. P. Smith(N.Y.)460. 
 Sheldon v. Edwards, N. S. vi. 381. 8 Tiffany 
 
 (N. Y.) 279. 
 Sheldon v. Horton, N. S. viii. 57.5. 53 Barb. 23. 
 Sheldon v. Raveret, N. S. vii. 379. 49 Barb. 
 
 203. 
 Sheldon v. Sherman, N. S. iy. 383. 42 Barb. 
 
 368. . 
 
 Sheldon i). Stryker, N. S. iv. 252, 253, 256. 42 
 
 Barb. 284'. 
 Shepherd v. Inhabitants of Chelsea, N. S. i. 
 
 691. 4 Allen lis. 
 Sherfy v. Argenbright, N. S. x. 196. 1 Heiskell 
 
 128. 
 Sheridan v. Life Ins. Co., O. S. vii. 511. 28 L. 
 
 J. (Q. B.) 94. 
 Sheridan v. New Quay Co., O. S. vii. 507. 28 
 
 L. J. C. P. 58. 
 Sheridan v. Phoenix Life Ins. Co., O. S. vii. 511. 
 
 28 L. J. (Q. B.) 94. 
 Sherman v. Elder, N. S. ii. 57. 10 E. P. Smith 
 
 N. Y. 381. 
 Sherman v. Fall R. Iron Works Co., N. S. ii. 
 
 768. 5 Allen 213. 
 Sherman v. Kortright, N. S. viii. 382. 62 Barb. 
 
 267. 
 Sherman v. Nixon. N, S. xii, ,698. 37 Ind. 1.5S. 
 Sherman v. Way, X. S. ix. 647. 56 Barb. 188. 
 
TABLE OF ABSTRACT CASES'. 
 
 1075 
 
 Hay, N. S. i. 565. 40 
 
 Sherwood t. .Andrews, N. S. i. 57. 2 Alleu 79 
 Sherwood v. Barton, N. S. i. 633. SB Barb. 284 
 Sherwood 1'. Pratt, N. 8. xii. i«. 63 Barb. 137 
 bnicks (t^hick's) Appeal, N. S v 25S i'J 
 
 Penna. St, SSO. 
 Shields f, Lozear, N. S. xi. 271. 7 C. E, Green 
 
 447. 
 Shinier v. Jones, N. S. iv. 308. 47 Peuna St 
 
 2w>. 
 
 Ship Washington e. Steamer Frances O S i 
 37o. > . . . 
 
 Shisler o. Keavy, N. S. xiv. 114. 75 Penna. St. 
 
 Shoemaker v. Bank, N. S. vui. 69a 59 Penna 
 
 St. (9. 
 Shoemaker i: King, N. 3. i. 562. 40 Penna. St. 
 
 Shoemaker v. Meehanies' Bank, N. S. viii 692 
 
 59 Penna. St. 79. 
 Shoenberger's Ex 
 
 Penna. St. 132. 
 Sholleubei^r t: Brinton, N. S. vi. 636. 62 
 
 Penna. St. 9. 
 Shores e. Carley N. S. it. 313. 8 Allen 423. 
 Short V. Randolph, O. S. ii. 119. 22 I'enna. 
 
 Short V. Stevenson, N. S. x. 67. 63 Penna. St. 
 
 95. 
 Shortwell's (Shotwell's) Adm'x v. Struble N 
 
 S. X. 205. 6 C. E. Green 31. 
 ShuU V. Ostrander, N. S. xil. 264. 63 Barb 130 
 Shultz V. Harvey, O. S. iv. 766. 
 Siggers n. Evans, O. S. iv. 124. 19 Jurist (Q. B.) 
 
 Sol. ' 
 
 Sigler r. Piatt, N. S. vii. 190. 16 Mich. 206. 
 SiUoway r. Ha)e, \. S. iv. 118. 8 AUen 61. 
 Silver v. Frazier, N. S. i. 504. 3 Allen 382. 
 Simmons v. Emmerson, N. S. xiii. 524. 
 Simmons v. Fairthlld. 42 Barb. 404. 
 Simmons v. Heseltlne, O. S. vii. 512. 28 L. J.. 
 
 C. P. 129. . 
 
 Slmpkins y. Low, U. S. vii. 508. 49 Barb. 382. 
 Singer v. Kelly, N. S. iii. 310. 44 Penna. St. 145. 
 Singer v. Troutman, N. S. vii. 126. 49 Barb. 
 
 182. 
 Singerly ». Fox, N. S. xiv. 126. 75 Penna. St. 
 
 112. 
 Sipperley v. Bancus, N. S. i. 503. 10 E. P. 
 
 .Smith (X. Y.) 46- 
 Sipperley v. Stewart, N. S. vii. 637, 639. 50 
 
 Barb. 62. 
 SitgrefCves v. Farmers' & Mechanics' Bank, N'. 
 
 .'^. V. 2.Tij, 49 Penna. St. 359. 
 Sittig i: Birkestack, N. S. xiii. 263. 38 Md. 158. 
 Six Mile Bridge Inquisition, The Matter of, O. 
 
 S. ii. 118. 6 Cox Cr. Cas. 122. 
 Skelley, In re, N. S. xiii. 122. 3 Bis. 260. 
 Skillen v. Richmond, N. S. viL 251. 48 Barb. 
 
 428. 
 Skinner v. Church, N. S. xiv. 53. 36 Iowa 91. 
 Slade c. Slade, N. S. x. 60t 58 Me. 157. 
 Slaugliter ». Culpepper et al., X. S. xi. 331. 44 
 
 Ga. 319. 
 Slaughter v. Cunningliam, O. S. iii. 55, 56. 21 
 
 Ala. 260. 
 Slawson ;•. Loring, N. S. ii. 699. 5 Allen 340. 
 .Sleek V. Turner, N. S. xiv. .520. 76 Penna.. St. 
 
 142. 
 Sleight V. Lawson. O. S. vi. 62. 3 K. & J. 292. 
 Slemmer's Appeal, X. S. viii. 637. 53 Penna. 
 
 .St. 1.55. 
 Slidells iand. Case of, N. S. xiv. 116. 20 Wall. 
 
 VI. 
 Slivin V. Eippey, N. S. x. 70. 46 Mo. 606. 
 Sloat !). Prentice, O. S. ii. 446, 
 Slothower v. Gordon, X. S. vii. 263. 23 Md. 1. 
 Smart V. Morton. O. S. iv. 124, 19 Jur. (Q. B.) 
 
 82.5. 
 .Smiley ». Bailey, N, S. x. .531. 59 Barb. 80. 
 Smiley v. Stevens, N. S. viii. 638. 41 Verm. 321. 
 Smilie •». Stevens, N. S. vi. 713. 39 Verm. 315. 
 Smith jr. Agawan Canal Co., N. S. 1. 247. 2 
 
 Allen 3-')5. 
 Smith I'. Allen. N. S. iii. 63, 5 Allen 454. 
 Smith V. Aylesworth, N. S. iii. 254. 40 Barb. 
 lUl. 
 
 Smith e. Borst, X. S. xii. 200. 63 Barb. 57. 
 Smith V. Bo.'^tou & Maine R. R., X. S. iii. 127. 
 
 44 X. H. 325. 
 Smith V. Bowen, N. S. vi. 255. 8 Titfany (N. 
 
 Y.)83. 
 Smith V. Bradley, N. S. vi. 774. 39 Verm. 866. 
 Smith V. Brooke, N. S. v. 122. 49 Penna, St. 147. 
 Smith V. Brown, X. S. xiii. 123. 61 Me. 70. 
 Smith V. Carr, N. S. x. 200. 1 Heiskell 173. 
 Smith o. Chase, X. S. vi. 573. 39 Verm. 89. 
 Smith !). City of Lowell, X. S. iii. 251. 6 Allen 
 
 39. 
 Smith V. Cottrell, N. S. x. 200. 1 Heiskell 197. 
 Smith IT. Creole & Sampson, O. S. ii. 697. 2 Wall., 
 
 Jr. 485. 
 Smith »'. Crittenden, X. S. vii. 184. 15 Mich. 
 
 152. 
 Smith & Barber, Ex'rs v. Darby, X. S. xiii. 784. 
 
 39 Md. 268. 
 Smith et al. v. Denman, X. S. xiv. 579. 48 Ind. 
 
 65. 
 Smith V. Dougherty, X. S. v. 504. 37 Verm. 
 
 530. 
 Smith V. Drake, X. S. xii. 471. 8 C. E. Green 
 
 302. 
 Smith V. Ege, X. S. vi. 637. ,52 Penna. St. 419. 
 Smith V. Frazier, X. S. vii. 125. 53 Penna. St. 
 
 226. 
 Smith V. Gage, X. S. ii. 438. 41 Barb. 60. 
 Smith V. Gardner, X. S. iv. 380, 381. 42 Barb. 
 
 356. 
 Smith V. Hannibal & St. Jo. R. E. Co., X. S. vi. 
 
 62. 37 Mo. 287. 
 Smith V. Hardy, X. S. xiv. 645. 36 Wis. 417. 
 Smith V. Harrington, X. S. i. 766. 4 Allen 566. 
 Smith V. Hatch, X. S. v. 698. 46 X. H. 146. 
 Smith V. Hewson, 0. S. i. 441. 
 Smith V. Hill. N. S. xii. 733. 45 Verm. 90. 
 Smith V. Holland, X. S. xi. 589, 590. 61 Barb. 
 
 333. 
 Smith V. Hood & Co., O. S. iv. 439. 25 Penna. 
 
 St. 218. 
 Smith & Handseomb v. Howard, X. S. viii. 507. 
 
 41 Verm. 74. 
 Smith V. Howe. X. S. ix. 449. 31 Ind. 233. 
 Smith V. Humphrey (Auditor General), N. S. 
 
 X. 670. 20 Mich. 388. 
 Smith V. Laurence. X. S. vi. 635. 15 Mich. 499. 
 Smith V. Lippincott, X. S. vii. 570. 49 Barb. 
 
 398. 
 Smith V. Mason, Assignee, X. S. xii. 187. 14 
 
 Wall. 419. 
 Smith V. McKenna, X. S. vii. 120. 53 Penna. 
 
 St. 151. 
 Smith V. Moody, N, S, vi. 714. 26 Ind. 299. 
 .Smith V. Morrill, X. S. vii. 186. .54 Me. 48. 
 Smith V. Myler, O. S. ii. 122. 22 Penna. St. 136. 
 Smith V. Xewcastle, X. S. viii. 443. 48 X. H. 70. 
 Smith V. X. H. & N. R. R. Co., X. S. vi. 573. 12 
 
 Allen 531. 
 Smith V. X. Y. Cent. R. R. Co., X. S. ii. 319. 10 
 
 E. P. Smith (X. Y.) 222. 
 Smith V. X. Y. Cent. R. R. Co., X. S. iv. 763. 43 
 
 Barb. 225. 
 Smith V. Orser. X. S. iv. 768. 43 Barb. 187. 
 Smith V. Pease. X. S. iv. 185. 13 E. P. Smith 
 
 K. Y. 45. 
 Smith V. Philhrick, X. S. iii. 187. 10 Gray 252. 
 Smith V. Provin. X. S. ii. 378. 4 Allen 516. 
 Smith V. Reiff, 0. S. i. 439. 20. Penna. St. .564. 
 Smith, Ex'r v. Remington, X. S. iv. 122. 42 
 
 Barb. 75. 
 Smith ij. Sievelting, 0. S. iv. 127. 24 L. J. (Q. 
 
 B.)2.57. 19.rnr.824. 
 Smith K. Small, X. S. ix. 197. ,54 Barb. 223. 
 Smith V. Smith. X. S: xi. 689. .59 Me. 214. 
 Smitli V. Sprague, X. S. viii. 571, 573. 40 Verm. 
 
 411. 
 Smith r. State, O. S. i. 188. 32 Maine 369. 
 Smith V. Sweeney, X. S. vi. 880. 8 Tiffany (X. 
 
 Y.) 291. 
 Smith V. TliTany, X. S. i. 508. 36 Barb. 23. 
 Smith V. Turnley et al., X. S. xi. 333. 44 Ga. 
 
 243. 
 Smith V. United States, N. S. iv. 512. 2 WalL 
 219. 
 
1076 
 
 TABLE OF ABSTRACT CASES. 
 
 Smith V. 'Washington Gas Light Co., X. S. ix. 
 
 681. 31 Md. 12. 
 Smith V. Way, N. S. v. 126. 9 Allen 472. 
 Smith V. Webster, N. S. viii. 446. 48 N. H. 142. 
 Smith V. Wiggin, N. S. xii. 671. 52 N. H. 112. 
 Smith V. Wilcox, N. S. ii. 69. 10 E. P. Smith 
 
 (N. Y.) 353. 
 Smith, Admin'r v. Wiley, N. S. viii. 634. 41 
 
 Verm. 19. 
 Smith V. Woodruff, N. S. vii. 192. 48 Barb. 438. 
 Smith's Appeal, N. S. Iv. 265. 47 Penna. St. 424. 
 Smith's Case, 0. S. ii. 698. 2 Wall. Jr. 150. 
 Smith, Ex parte, N. S. Iv. 317. 2 New Eep. 321. 
 
 Q.B, 
 Smoot V. Mayor, 0. S. iii. 66. 24 Ala. 112. 
 Smoot V. Mayor of Wetumpka, 0. S. iii. 55. 24 
 
 Ala. 112. 
 Smyth V. Carden, 0. S. i. 381. 1 Swan 28. 
 Snead v. Williams, N. S. ill. 442. 9 L. T. N. S. 
 
 115. 
 Snell & McGavock v. Allen, O. S. i. 377. 1 
 
 Swan 208. 
 Snow V. Howard, N. S. i. 379. 35 Barb. 55. 
 Snow v. Thompson Oil Co., N. S. viii. 753. 59 
 
 Penna. St. 209. 
 Snyder v. Neefvis, N. S. yiii. 672, 639. 53 Barb. 
 
 63. 
 Society for Savings v. City of New London, N. 
 
 S. 1.242. 27 Conn. 174. 
 Society for the Visitation of the Sick v. Com- 
 monwealth, N. S. vi. 633. 62 Penna. St. 126. 
 Solomon U.Solomon, O.S. vii.566. 28L>J.Exoh. 
 
 129. 
 Sorenberger v. Houghton. N. S. vii. 703. 40 
 
 Venn. 160. 
 Southampton P. B. & R. v. Loc. B. of H. of S. 
 
 0. S. vi], 509. 28L. J. CQ, B.)41. 
 South Berwick, Inhab's of v. Huntress, N. S. 
 
 vi. 247. 53 Me. 89. 
 South Boston Iron Co. v. Brown, N. S. xiv. 454. 
 
 63 Me. 139. 
 South Hampton v. Powler, N. S. xii. 669. 52 
 
 N. H. 225. 
 South Hampton v. Fowler, N. S. xiv. 397. 54 
 
 N. H. 197. 
 South Park Comm. v. Com. Coun. of Chicago, 
 
 N. S. ix. 718. 51 III. 68. 
 Southern Cen. B,. E. Co. v. Moravia, Town of, 
 
 N. S. xl. 332. 64 Barb. 180. 
 Southern Express Co. v. Moon, N. S. vi. 604. 
 
 39 Miss. 822. 
 Southern Express Co. v. Womack, N. S. x. 194. 
 
 1 HeiskeU 266. 
 Souther v. Com. Coun. of Madison, N. S. iii. 
 
 377. 15 Wis. 30. 
 Southmayd v. McLaughlin, N. S. xiii. 200. 9 
 
 C. E. Green 181. 
 Soutter V. Com. Coun. of Madison, N. S. iii. 
 
 377. 15 Wis. 30. 
 Sowers V. Earnhart, N. S. ix. 384. 64 N. C. 96. 
 Spackman v. Ott, N. S. x. 534. 65 Penna. St. 
 
 131. 
 Spain V. Hamilton's Adm'r, N. S. iv. 116. 1 
 
 WaU.604. 
 Spangley's Appeal, O. S. i. 633. 24 Penna. St. 
 
 424. 
 Sparhawk v. Sparhawk, N. S. v. 576. 10 Allen 
 
 1.55. 
 Spaulding v. Brewster, N. S. vii. 640, 60 Barb. 
 
 142. 
 Spaulding v. Day. N, S. v. S18. 10 Allen 96, 
 Spaulding v. Hallenbeck, N. S. ii. 763. 39 Barb. 
 
 79. 
 Spaulding u. Hallenbeck, N. S. vi. 316. 8 Tif- 
 fany m. Y.) 204. 
 Spaulding v. Mozier, N. S. xii. 325. 67 HI. 148. 
 Spaulding v. Strang, N. S. i. 635. 36 Barb. 010. 
 Spaulding 11. Town of Andover, N. S. xiii. 581. 
 
 54 N. H. 38. 
 Spear v. Hill, N. S. xiv. 398. .64 N. H. 87. 
 Spears v. Ward et al.. N. S. xiv. .ssa, 48 Ind. 641'. 
 rpcers V. Flack. N. S. iii. 634. 84 Mo. 101. 
 Spelman v. The Fisher Iron Company, N. S. 
 
 ix. 517. 56 Barb, Wl. 
 Sperir.g's Appeal, N, S. xii. 784. 71 Penna. St. 
 
 Sperry v. Eicker. N. S. i. 691. 4 Allen 17. 
 Spicer v. Waters, N. S. xiii. 260, 263. 65 Barb. 
 
 227. 
 Spickler v. Marsh, N. S. xii. 200. 36 Md. 222. 
 Spiller V. Inhab. of Woburn, N. S. vi. 315. 12 
 
 Allen 127. 
 Spooner ii. Brooklyn C. E. E., N. S. i. 572. 36 
 
 Barb. 217. 
 Spooner -o. Mattoon, N. S. vii. 696. 40 Verm. 
 
 300. 
 Sporrer v. Eifler, N. S. x. 206. 1 Heiskell 633. 
 Sprague v. Ainsworth, N. S. vii. 575. 40 Verm. 
 
 47. 
 Sprague, Adm'r v. Clark, N. S. viii. 610. 41 
 
 Verm. 6. 
 Sprague v. McKinzie, N. S. xii. 127. 63 Barb. 
 
 60. 
 Spring V. Fisk, N. S, x. 276. 6 C. E. Green 175. 
 Spring V. Haskell, N. S. i. 689. 4 Allen 112. 
 Spring V. Woodworth, N. S. i. 247. 2 Allen 206. 
 Spring V. Woodworth. N. S. i. 765. 4 Allen 326. 
 Springer v. Dwyer, N. S. x. 344. 68 Barb. 189. 
 Springer v. Phillips, N. S. xii. 788. 71 Penna. 
 
 St. 60. 
 Springfield v. Harris, N. S. ii, 380, 4 Allen 434. 
 Springiield Marine & Fire Ins. Co. t'. Tincher, 
 
 N. S. iii. 312. :-0 111. 399. 
 Stack V. Portsmouth, N. S. xii. 662. 62 N. H. 
 
 221. 
 Stackpole v. Bobbins, N. S. vi. 572. 47 Barb. 
 
 212. 
 Stadler v. Detroit City, N. S. iv, 574. 13 Mich. 
 
 346. 
 Stadler v. Milwaukee, N. S. xiii. 053. 34 Wis. 
 
 98. 
 Stagg V. Green, N, S, x. 602, 47 Mo, 500. 
 Ptallings v. Owens. N. S x. 133. 51 ID. 92. 
 .Stammers v. Tomkins, O. S. i. 306. (Exch.) 
 Stanley v. Colt, N. S. vii. 67. 5 Wall. 119. 
 Stanley v. Stanton, N, S, xii. 404, 36 Ind. 445. 
 Stanley «. The State, N. S. xiv. 54. 24 Ohio St. 
 
 166. 
 Stannard v. Smith, N. S. vii. 831. 40 Venn. 513. 
 Stansbury v. U. States, N. S. ix. 63. 8 Wall. 33. 
 Stanton v. Collier, O. S. iii. 126. 18 Jur. 650. 
 Stanton v. Hart, N. S. xiii. 394. 27 Mich. 639. 
 Stanton v. Miller. N. S. xii. 729. 65 Barb. 68. 
 Stanton v. Springfield, N. S. vi. 570. 12 Allen 
 
 566. 
 Stanton v. Thompson, N. S. xl. 267. 49 N. H. 
 
 272, 
 Stanwood i). Whitmore, N. S. xiv. 463. 63 Me. 
 
 209. 
 Staples V. Wellington, N. S. xiv, 194, 62 JMe. 9. 
 Star of Hope, N. S. ix. 465. 9 Wall. 203. 
 State V. Adams, N. S. xi. 721. 61 N. H. 568. 
 State V. Avery, N. S. iii. 376. 15 Wis. 18. 
 State V. Bachelder, N. S. iv. 55, 1 Wall, 109, 
 State V. Baird, N, S. x. 348. 6 0. E. Green 384. 
 State (Baird) v. Baird, N. S. vii. 700. 3 C. E. 
 
 Green 194, 
 State V. Bait. & Ohio E. E. Co., N. S. xi. 55. "4 
 
 Md. 344. 
 State r. Biddle, N, S. iv. 646, 64 N. H. 379. 
 State V. Blaisdell, N. S. x, 197. 49 N. H. 81. 
 Stater. Boal.N.S.x. 132. 46 Mo. 528. 
 State V. Buckland, 0. S, v. 123. 5 Ohio St. 216. 
 State V. Burke, N. S. xiv. 456. 54 N. H. 92. 
 State V. Call, N. S. viii. .670, 48 N. H. 126. 
 State v. Cameron, N. S. vii. 831. 40 Verm. 555. 
 State V. Carr. N. S. v. 317. 37 Verm. 191. 
 State V. Cassady, N. S. xiii. 56. 62 N. H. 500. 
 State V. City of Elizabeth, N. S. xiii. 392. 8 
 
 Vroom 142. 
 State V. Citv of Hoboken, N. S. xiii. 395. 7 
 
 Vroom ,378. 
 State V. Cleaves, N. S. xi. 531. 69 Mo. 298. 
 State V. Colston, N. S, xiv. 122. 63 N. H. 483. 
 Sl'ate CT rel. v. Committee, N. S. xiv. 124. 8 
 
 Vroom 84. 
 State of Wis. r. Com. Coun. of Madison, N. S. 
 
 iii. .377. 15 Wis. SO. 
 Slate ex rel. Little v. Committee of Union Town- 
 ship, N. S, xiv. 124. 8 Vroom 84. 
 State V. County Court of St, Louis Co., N. S.: 
 
 iv. 121. 34 Mo, 134, 5S1. 
 
TABLE OF ABSTEACT CASES. 
 
 1077 
 
 state ex rel. Attorney General v. Davis, N. S. is. 
 
 196. 44 JIo. 129. 
 State 11. Dolby, N. S. xi. 330. 49 N. H. 483, 
 State V. Dover, N. S. vi. 317. 46 N. H. -li-l. 
 State V. Dresser, N. S. vii. 446. 54 Me. 569. 
 State II. Dyer, N. S. xi. 592. 59 Me. 303. 
 State i\ Farmer, N. S. vl. '256. 46 N. H. 200. 
 State v. Franklin FaUs Co., N. S. si. 272. 49 N. 
 
 H. 240. 
 State D. Garland, N. S. xiv. 528. 63 Me. 121. 
 State V. Gibson, N. 8. xii. S20. 36 Ind. 389. 
 State i'. Gorhaiu, X. S. xiv. 701. 56 N. H. 152. 
 State V. Grand Trunk R. U. Co., N. S. x. 605. 68 
 
 Me. 176. 
 State I'. Hastings, N. S. xiv. 120, 122. 53 N. H. 
 
 452. 
 State V. Hudson, N. S. xii. 597. 87 Ind. 198. 
 State V. Hudson Co. Com., N. S. xiii. 390. 8 
 
 Vroom 12. 
 State V. Hughes, O. S. i. 380. 1 Swan 261. 
 State V. Intoxicating Liquors, N. S. xiv. 528. 
 
 63 Me. 121. 
 State t'. Jones. N. S. vii. 189. 39 Verm. 370. 
 State V. Jones, N. S. xi. 661. 60 N. H. 369. 
 State V. Kegeon, N. S. xiv. 456. 55 N. H. 19. 
 State V. Kroeger, N. S. x. 744. 47 Mo. 530. 552. 
 State V. Kupferle, N. S. ix. 196. 44 Mo. 154. 
 State of Kansas v. Lewis, N. S. xii. 126. 10 
 
 Kans. 157. 
 State )'. MarshaU, N. S. iv. 507. 46 N. H. 281. 
 State V. Mayor and C. Council of the City of 
 
 Hudson, N. S. ii. 55. 5 Dutcher, 104, 115, 
 
 175. 
 State V. Mavor, &e.. of Jersey City, N. S. xiv. 
 
 268. 8 Vroom 348. 
 State V. McAuliff, N. S. x. 605. 47 Mo. 
 State V. McCoy, N. S. iv. 120. 34 Mo. 13-1, 531. 
 State v. Miller, N. S. ix. 124. 23 Wis. 631. 
 State V. Montgomery, N. S. xi. 396. 8 Kans. 
 
 351. 
 State II. Moore, O. S. i. 379. 1 Swan 136. 
 State V. Morse, N. S. xi. 331. 50 N. H. 9. 
 State V. Murphy, N. S. xiii. 123. 61 Me. 56. 
 State V. Nelson. N. S. vi. 716. 26 Ind. 366. 
 State V. Ober, N. S. xiii. 63. 52 N. H. 459. 
 State V. Our House No. 2, 0. S. i. 697. 4 G. 
 
 Greene 172. 
 State V. Patterson, N. S. xii. 400, 403, 404. 45 
 
 Verm. 308. 
 State V. Peck, N. S. xiv. 680. 25 Ohio St. 26. 
 State V. Peck, N. S. vi. 575. 53 Me. 284. 
 State V. Pike d al., N. S. xi. 661. 51 N. H. 105. 
 State V. Railroad Co., N. S. x. 605. 58 Me. 176. 
 State V. Railroad Co., N. S. xi. 65. 34 Md. 344. 
 State V. Rand, N. S. xi. 721. 51 N. H. 861. 
 State V. Keddick, N. S. x. 406. 7 Kans. 143. 
 State V. Reed, N. S. vi. 773. 39 Verm. 417. 
 State V. Ritchey, N. S. ix. 679. 64 N. C. 172. 
 State V. Robinson, O. S. i. 189. 38 Me. 664. 
 State V. Runnals, N. S. xi. 380. 49 N. H. 498. 
 State V. Seneca Co. Bank, O. S. iv. 697. 5 Ohio 
 
 St 771 
 State V. Shinbom, N. S. vl. 379. 46 N. H. 497. 
 State V. Squeers (Squires), N. S. ix. 511. 48 N. 
 
 H 364 
 State V. Stanton, N. S. vii. 441. 6 Wall. 60. 
 State V. St. Louis Co. Ct., N. S. x. 606. 47 Mo. 
 
 594 
 State't). .Symonds, N. S. x. 136. 67 Me. 148. 
 State V. Taylor et al., N. S. xiv. 754. 25 Ohio St. 
 
 279 
 State' 11. Temple, N. S. v. 638. 38 Venn. 37. 
 State V. Tomlin, N. S. ii. 62. 5 Dutcher 13. 
 State 1). Tool, N. S. i. 244, 29 Conn. 342. 
 State V. Town of Jericho, N. S. vu. 762. 40 
 
 Verm. 121. 
 State V. Walker, N. S. vi. 716. 26 Ind. 346. 
 State V. Ward, N. 3. vi. 716. 39 Verm. 226. 
 State V. Whittemore, N. S. xi. 268, 268. 50 N. 
 
 H. 245. 
 State V. Wilson, N. S. vii. 252. 47 N. H. 101. 
 State V. Wolcott, O. S. i. 665. 21 Conn. 272. 
 State V. Woodrufr, N. S, xiv. 264. 8 Vroom 139. 
 State V. Woodward, N. S. xi. 721. 50 N. H. 
 
 527 
 State' Bank v. Hastings, N. S. iii. 378. 15 Wis. 75. 
 
 State Bank of Troy v. Bank of Capital, N. S. 
 
 iii. 701. 41 Barb. 343. 
 Staufler's Appeal, O. S. i. 441. 
 Steamboat Burns, N. S. ix. 441. 9 Wall. 237. 
 Steamboat Co. v. Atkins & Co., 0. S. ii. 503. 
 
 22 Penna. St. 622. 
 Steamboat Co. v. Scudder, (Van Pelt's) Adm'r, 
 
 N. S. iii. .52. 2 Black 372. 
 Steamboat Co. -o. Transportation Co., N. S. vii. 
 
 759. 3 C. E. Green 611. 
 Steamboat Farmer v. MoCraw, O. S. iv. 191, 249. 
 
 26 Ala. 189. 
 Steam Navigation Co. v. Matin, O. S. viii. 250. 
 
 8 Jur. N. S. 1300 ; 28 L. J. (Q. B.) 310. 
 Steamer Magnolia v. Marshall, N. S. vi. 610. 
 
 39 Miss. 109. 
 Steamship Dock Co. v. Herons, Adm'r, N. S. 
 
 vi. 634. 52 Penna. St. 280. 
 Stedman v. Patchin, N. S. i. 23'?. 34 Barb. 218. 
 Steel V. Steel, N. S. ii. 254. 4 Allen 417. 
 Steeles, Mary E., Estate, N. S. viii. 127. 4 C. E. 
 
 Green 120. 
 Steelman v. Collett, O. S. iii. 128. IS Jur. 457. 
 Steere v. Tenney, N. S. xi. 659. 50 N. H. 461. 
 Stegar u. The State, N. S. ix. 511. 39 Ga. .583. 
 Stehman v. Hnber, O. S. i. 634. 21 Penna. St. 
 
 260, 
 "Stein V. Ashby, 0. S. iii. 57. 24 Ala. 621. 
 Stein V. Burden, O. S. iii. 66. 24 Ala. 130. 
 Stein V. Burden, O. S. v. 729. 27 Ala. 104. 
 Steinberger's Trustees v. Potter, N. S. vii. 762. 
 
 3 C. E. Green 452. 
 Steines et al, v. Franklin Co. et al., N. S. x. 746. 
 
 48 Mo. 167. 
 Steinmau v. Ewing, N. S. ii. 636. 43 Penna. St. 
 
 63. 
 Steman v. Harrison, N. S. ii. 448. 42 Penna. 
 
 St. 49. 
 Stephens v. The State, 0. S. i. 381. 1 Swan 157. 
 Stephenson v. Little, N. S. ii. 127. 10 Cooley 483. 
 Stephenson v. Piscataqua F. & M. Co., N. S. 
 
 vii. 444. 64 Me. 66. 
 Sterling v. Wardeu, N. S. xii. 670. 52 N. H. 197. 
 Sterling Hydck. Co. v. Williams, N. S. xiv. 583. 
 
 66 111. 393. 
 Stern v. O'ConneU, N. S. vi. 252. 8 Tiffany (N. 
 
 Y.) 104. 
 Stetson V. Bangor, N. S. xii. 668. 60 Me. 313. 
 Steubenville & Indiana B. R. Co. v. The Trus- 
 tees of Jackson Township, 0. S. iv. 702. 1 
 Ohio St. 105, 
 Stevens v. Allen, N. S. ii. 55. 6 Dutcher 68, 
 509. „ 
 
 Stevens, Adm'r v. Colby, N. S. v. 703. 46 N. H. 
 
 168. 
 Stevens v. Dennett, N. S. xii. 321, 323. 51 N. H. 
 
 324 
 Stevens v. Millard, N. S. xiv. 712. 86 Wis. 77. 
 Stevens (Stephens) v. St. Louis Nat. Bank, N. 
 
 S. viii. 381. 43 Mo. 386. 
 Stevenson v. Burgin, N. S. v. 123. 49 Penna. 
 
 St. 36. 
 
 Stevenson v. Buxton, N. S. ii. 60. 37 Barb. 13. 
 
 Stevenson (Stepbenson) v. Little, N. S. ii. 127. 
 
 10 Cooley 483. „ ^ 
 
 Stewart v. Ackley et al., N. S. viii. 442. 52 Barb. 
 
 283 
 Stewart v. Balderson, N. S. xii. 727, 734. 10 
 
 Kans. 131. 
 Stewart v. Bowen, N. S. V. 180. 49 Penna. bt. 
 
 245 
 Stewart v. Levy. N. S. viii. 701. 36 Cal. IW. 
 Stewart v. Loring. N. S. ii. 768. 5 Allen 306. 
 Stewart v. Milliken, N. S. xiv. 261. 30 Mich. 
 
 603. 
 Stewart v. Thomas, N. S. ix. 327. 45 Mo. 42. 
 Stickney v. City of Salem, N. S. i. 505. 3 Allen 
 
 374. 
 Stickney v. Jordan, N. S. x. 632. 58 Me. 106. 
 Stiles V. Cardiff Nav. Co., N. S. iv. 815. 33 L. 
 
 J. N. S. 310, Q. B. 
 Stiles V. Homer, 0. S. i. 668. 21 Conn. 507. 
 Stiles V. Meyer, N. S. xii. 406. 64 Barb. 77. 
 Stiles t). Stiles, N, S. v. 253. 14 Mich. 72. 
 Stillman's Ex'r v. Stillman, N. S, x. 46, 349. 6 
 C. E. Green 126. 
 
1078 
 
 TABLE OF ABSTEACT CASES; 
 
 Stilwell, Matter of, N. S. xi. 706. 
 
 StincMeld v. Emerson, N. S. vi. 186. 62 Me. 
 
 465. 
 Stirling v. Loud, N. S. x. 643. 33 Md. 436. 
 Stirling v. N. Phospliate Co., N. S. xi. 598. 35 
 
 Md. 128. 
 Stitt V. Huidelsopers, N. S. xiii. 327. 17 Wall. 
 
 384. 
 St. Louis V. De Nou«, N. S. Tiii. 383. 44 Mo. 136. 
 St. Louis Mut. Life Ins. Co. v. Charles, N. S. x. 
 
 750. 47 Mo. 462. 
 Stober's Adm'rs v. McCarter, 0. S. iv. 689. 4 
 
 Ohio St. 613. 
 Stoekham v. Browning, N. S. vii. 707. 3 0. E. 
 
 Green 390. 
 Stocif's (Stoolt's) Appeal, 0. S. 1. 443. 20 Penna. 
 
 St. 349. 
 Stocljwell V. Phelps, N. S. vi. 127. 7 Tiffany 
 
 (N. Y.) 363. 
 Stoddard v. 'Locke & Others, N. S. xi. 52. 43 
 
 Verm. 574. 
 Stone V. Dicl£inson, N. S. ii. 444. 5 Allen 29. 
 Stone V. Lane. N. S.- v. 320. 10 Allen 74. 
 Stone V. Wetmore, N. S. xi. 899. 42 Ga. 601. 
 Stonebralier v. Stonebraker, N. S. x. 543. 33 
 
 Md. 262. 
 Storm V. Manchaug Co., N. S..vli. 126. 13 Allen 
 
 10. 
 Stoudt V. Hine, N. S. iii. 571. 46 Penna. St. 30. 
 Stoutenburgh v. Konkle, N. S. vi. 575. 2 Mc- 
 Carter 33 
 Stover V. Stiner. N. S. v. 570. 46 Barb. 56. 
 Stow V. Stow, N. S. Iii. 375. 1 Eed. Surrogate 
 
 C, N. Y. 305. 
 Stowe V. Thoinas, O. S. ii. 700. 2 Wall., Jr. 547. 
 Stowell V. Beagle, N. S. xii. 262. 57 111. 97. 
 Stowell V. Richardson, N. S. i. 569, 3 Allen 64. 
 Strachan v. Muxlow, N. S. ix. 259. 24 Wis. 21. 
 Strachan, In re, N. S. xiii. 120. 3 Bis. 181. 
 Strafford v. Blaisdell, N. S. xiii. 61. 45 Verm. 
 
 649. 
 Stranaghan v. Youmans, N. S. xiii. 256. 65 
 
 Barb 392 
 Strang I). Hirst, N. S. xiii. 126. 61 Me. 9. 
 Strasburger v. Barber, N. S. xiii. 258. 38 Md. 
 
 108. 
 Stratton v. N. York & N. H. E. E. Co., 0. S. v. 
 
 310. 2 E. D. Smith 184. 
 Stratton v. Staples, N. S. xi. 596. 69 Me. 94. 
 Straus V. Eagle I. C. of Cincinnati, O. S. iv. 629. 
 
 6 Ohio St. 59. 
 Straus V. Young, N. S. xii. 192. 36 Md. 246. 
 Strauss's Appeal, N. S. v. 264. 49 Penna. St. 363, 
 Strickland v. Prichard, N. 8. v. 604. 37 Verm. 
 
 324. 
 Strong V. Blake, N. S. vi. 191. 46 Barb. 227. 
 Strong V. Grand Trunk R. W. Co., N. S. vi. 315. 
 
 15 Mich. 206. 
 Strong V. Saunders, N. S. vi. 639. 15 Mich. 339. 
 Strough V. Gear, N. S. xiv. 680. 48 Ind. 100. 
 SturdTvant v. Hull, N. S. xi. 529. 59 Me. 172. 
 Sturdv V. Jackaway, N. S. vi. 439. 4 Wall. 174. 
 Sturgis V. Clough, N. S. iii. 629. 1 Wall. 269. 
 - Sturtevant v. Orser, N. S. ii. 318. 10 E. P. 
 
 Smith (N. Y.) 638. 
 Sturtevant v. Randall, N. S. vi. 566. 53 Me. 149. 
 Suffern v. Butler, N. S. viii. 184. 4 C. E. Green 
 
 202. 
 Suffolk Ins. Go. v. Boyden, N. S. v. 127. 9 
 
 Allen 123. 
 Sugar River Bank v. Fairbanks, N. S. x. 197. 
 
 49 N. H. 131. 
 Sullings V. Richmond, N. S. ii. 698. 5Allenl87. 
 SuUings V. SuUings, N. S, v. 187. 9 Allen -234. 
 Sullivan v. Lewiston Ins. for Savings, N, S. ix. 
 
 120. 56 Me. 607. 
 Summerhill v. Tapp, N.' S. xiv. 392. 48 Ala. 
 
 363. 
 Supervisors v. Durant, N. S. ix. 448. 9 Wall. 
 
 736. 
 Supervisors v. Rogers, N. S. viii. 439. 7 Wall. 
 
 175. 
 Supervisors of Whiteside Co. v. Burchell, N. S. 
 
 ill. 63L 31111.68. 
 Susong V. Williams. N. 8. x. 206. 1 Heiskell 625. 
 Susquehanna Bank v. The Board of Supervi- 
 
 sors of Broome Co., N. S. Iii. 66. 11 E. P.' 
 
 Smith (N. Y.) 312. 
 Sussex R. R. Co. v. Morris and Essex R. R. Co., 
 
 N.-S. viii. 126. 4 C. E. Green 13, 574. 
 Sutliff V. C. & M. E. R. Co., N. S. xiii. 775. 24 
 
 Ohio St. 147. 
 Sutter V. San Francisco, N. S. viii. 700. 36 Cal. 
 
 112. 
 Sutter V. Trustees, N. S. ii. 605. 42 Penna. St. 
 
 603. 
 Sutton V. Cleveland (Hanford), N. S. ii. 695. 
 
 7 Cooley 513. 
 Swain v. Saltmarsh, N. S. xiv. 318. Ri N. H. 9. 
 Swanger v. Snyder, N. S. v. 378. 50 Penna. St. 
 
 218. 
 Swanston v. liams, N. S. xiv. 64. 63 111. 165. 
 Swarthout v. IM. J. Steamboat Co., N. S. vi. 190. 
 
 46 Barb 222 
 Swazey v^ Choate Manf. Co., N. S. viii. 569. 48 
 
 N. H. 200. 
 Sweeney v. Old Colony & Newport E. R. Co., 
 
 N. 8. V. 573. 10 Allen 368. 
 Sweeny v. Damron, N. S. ix. 61. 47 111, 450. 
 Sweeny v. Easter, N. 8. iv. 115. 1 Wall. 165. 
 Sweeny v. McGettogan, O. S. i. 440. 20 Penna. 
 
 St. 319. 
 Sweet V. Parker, N. S. xi. 265. 7 C. E. Green 
 
 453. 
 Sweet V. Spence, N. S. i. 378. 35 Barb. 44. 
 Sweet V. Tlnslar, N. S. viii. 438, 442. 52 Barb. 
 
 271. 
 Sweetman v. Prince, N. S. iii. 571. 12 E. P. 
 
 Smith (N. Y.) 224. 
 Swilt V. Opdyke, N. S. v. 66. 43 Barb. 274. 
 Swinfen v. Swinfen, O. S. viii. 262. 4 Jur. N. S. 
 
 774. 
 Swope V. EoBS, N. S. i. 627. 40 Penna. St. 186. 
 Sykes v. Town of Pawlet, N. S. xi. 59. 43 Verm. 
 
 446. 
 Sylvester v. Swan, N. S. ii. 567. 5 Allen 134. 
 Syphers v. Meighan, O. S. ii. 120. 22 Penna. St. 
 
 125. 
 Syracuse, The, N. S. ix. 507. 9 Wall. 672. 
 
 T. W. & W. Railway Co. v. Apperson, N. S. ix. 
 
 387. 49111.480. 
 T. W. & W. E. E. Co. V. Gary, N. S. xii. 634. 37 
 
 Ind. 172. 
 T. W. & W. R. E. Co. I). Wand, N. S. xiv. 689. 
 
 48 Ind. 476. 
 Tabor v. Cook, N. S. vi. 632. 15 Mich. 322. 
 Taft V. Carter, N. 8. x. 540. 59 Barb. 67. 
 Taft V. Taft and Wife, N. S. vii. 636. 40 Verm. 
 
 229 
 Tainter v. Clark, N. S. Ii. 508. 5 Allen 66. 
 Tainter v. Mayor of Morristown* N. S. viii. 121, 
 
 127. 4 G. E. Green 46. 
 Tait V. Culbertson, N. S. ix. 715. 57 Barb. 9. 
 Talbot V. Talbot, N. S. 1. 181. 9 E. P. Smith, ' 
 
 N. Y. 17. 
 Tallmadge v. Pauoyer, N. S. i. 311. 35 Barb. 
 
 120. 
 Tantum v. Green, N. S. x. 346. 6 C. E. Green 
 
 364. 
 Tarbell v. Central Pacific E. E. Co., N, S. viii. 
 
 187. .S4Cal. 
 Tarbell v. Tarbell, N. S. v. 510. 10 Allen 278. 
 Tatham v. Lewis, N. S. x. 639. 65 Penna. St. 
 
 65. 
 Tax Cases, License, N. S. vii. 123. 6 Wall. . 
 
 462. 
 Taylor v. Allen, N. S. i. 634. 36 Barb. 294. 
 Taylor v. Blanchard, N. S. vii. 69. 13 Allen 
 
 370. 
 Taylor v. Caldwell, N. S. iii. 442. 32 L. J. (Q. B ) 
 
 164. 
 Taylor v. Church, O. 8. iii. 443. 1 E. D. Smith 
 
 279. 
 Taylor v. Grand Trunk Railway, N. S. viii. 571. 
 . 575. 48N. H. 304. 
 
 Taylor v. Hill, N. S, xii. 260. 36 Md. 494. 
 Taylor 1). Hutton, N. S. iv. 703. 43 Barb. 195. 
 Taylor v. Ins. Co.. N. S. xii. 265. 61 N. H. 60. 
 Taylor v. Montgomery, O. S. i. 440. 20 Penua. 
 
 St. 443. 
 
TABLE OF ABSTRACT CASES. 
 
 1079 
 
 Taylor v. Page, X, P. iii. 121. 6 Allen 36. 
 Taylor v. Robinson, N. S. i. 816. ■■ Allan 56'2. 
 Taylor v. Koger Williams Ins. Co., N. S, xi. T22 ; 
 
 N. S. xii. 2:-S. 51 N. H. M. 
 Taylor, The Moses, N. S. vi. 630. 4 Wall. 411. 
 Taylor v. The State, N. S, xi. 330. 44 Geo. 
 
 263. 
 Taylor v. Turley, N. S. x. 472. 33 Md. 500. 
 Taylor v. Welbey, N. S. xiv. 254. 36 Wis. 42. 
 Taylor's Appeal, >r. S. iv. 192. 47 Penna. St. 81. 
 Teaff V. Hewitt et oi. O. S. i. 723. 1 MoCook 
 
 511. 
 Teall V. Barton, N. a iii. 318. 40 Barb. 137. 
 Teasey i'. Baker, N. S.viii. 122. 4 0. B. Green 
 
 61. 
 Teed !•. Teed, N. S. v. 380. 44 Barb. 96. 
 Tefft V. Munson, N'. S. xii. 57. 63 Barb. 31. 
 Telegraph v. Gildersleve, N. S. vili. 692. 29 
 
 Md. 232. 
 Teueiek v. Hagg, N. S. ii. 53. 5 Butcher 25. 
 Termisonata, The, O. S. iii. 638. 19 Jur. 479. 
 ^Tervvilliger v. Brown, H. S. x. 798. 5 Hand, , 
 
 N. Y. 237. 
 Terwilliger v. Brown, N. S. x. 479. 59 Barb. 9. 
 Thames v. Cent City Ins. Co., N. S. xiii. 54. 
 
 49 Ala. 577. 
 Thames, The, N. S. xii. 197; 14 Wall. 98. 
 Thayer v. Connor, N. S. ii. 44-L 5 Allen 25. 
 Thayer t'. McGee. N. S. x. 536. 20 Mich. 193. 
 Thomas v. Churton, N. S. iii. 628. 2 B. & S. 
 
 475. 
 Thomas t'. Delphy, N. S. x. 474. 33 Md, 373. 
 Thomas v. Farmers' Bank, N. S. x. 131. 32 Md. 
 
 57. 
 Thomas v. Green, N. S. ix. 325. 30 Md. 1. 
 Thomas v. Hesse, N. S. iii. 632. 34 Mo. 18. 
 Thomas v. Hunter, N. S. viil. 699. 29 Md. 406. 
 Thomas v. Jlinot, N. S. iii. 185. 10 Gray 263. 
 Thomas v. Moore, N. S. xii. 731. 71 Penna. St. 
 
 193 * 
 
 Thomas v. Murray, N. S. i. 183, 34 Barb. 157. 
 Thomas v. Stetson, N. S. xi. 599. 59 Me. 229. 
 Thomas i'. The People, N. S. vi. 119!. 7 Tiffany, 
 
 N. Y. 351. 
 Thomas 11. The State, N. S. viii. 811. 38 Ga. 
 
 117. 
 Thomas v. Thomas, N. S. ix. 776. 51 Ills. 162. 
 Thomas, Ex'r v. Anderson^s Adm'rs, N. S. x. 
 
 U9. 6 C. K Green 2Z 
 Thomson i'. Bal. & Susq. Steam Co., N. S. x. 
 
 539. 33 Md. 312. 
 Thompson v. Bennett's Adm'r, N. S. iv. 120. 
 
 31 M^. 477. 
 Thompson t'. B. & O. E. E. Co., N. S. viii. 318. 
 
 28 Md. 396. 
 Thompson v. Field, N. S. vi, 253. 38 Mo. 320. 
 Thompson v. Gray, N. S. xiv. 4.57. 63 Me. 228. 
 Thompson v. Howard, N. S. xiv. 590. 31 Mich. 
 
 309. 
 Thompson ». Lee County, N. S. v. .571. 3 Wall 
 
 327. 
 Thompson v. McKinley's Adm'r, N. S. iv. 448. 
 
 47 Penna. 3-53. 
 Thompson v. Otis. N. S. iv. 315. 42 Barb. 461. 
 Thompson (Thomson) v. Pacific Eailroad, N. 
 
 S. ix. 576. 9 Wall. 579. 
 Thompson «. Railroad Co., N. S. vii. 314. 6 
 
 Wall 134 
 Thompson' v. Riggs, N. S. vii. 123. 5 Wall. 663. 
 Thompson !'. Sandford, Adm'r, &e., O. S. ii. 380. 
 
 13 Geo. 238. „ ^ ,„ 
 
 Thompson v. Sickles. N. S. vi. 124. 46 Barb. 49. 
 Thompson v. Steam Co., N. S. x. 539. 33 Md. 
 
 312 
 Thoinpson v. Stevens, N. S. xii. 727, 730. 71 
 
 Penna. St. 161. ^ „ . ^,„ „„ 
 
 Thompson v. Tioga E. E. Co., N. S. 1. 610. 36 
 
 Barb. 79. 
 Thompson, The, N. S. V. 573. 3 Wall. 155. 
 Thompson's Exec's v. Lloyd, N. S. v. 125. 49 
 
 Penna. St. 127. ,„,.,. ,„ , „ 
 
 Thorn v. Commissioners of Public Works, N. 
 
 S. iv. 307. 32 Beav. 490. 
 Thome?). Mosher, N. S. ix. 390. 5 C. E. Green 
 
 2.57. 
 Thorp V. Owen, 0. S. iii. 256. 18 Jur. 541. 
 
 Thorp I'. Wegeforth (Wegefarth), N. S. viii. 02. 
 
 ,'i6 Penna. St. 82. 
 Thrall v. Estate of Mead, N. S. vii. 832. 40 
 
 Verm. S'lO. 
 Thrt'ad Co. v. Howland, N. S. xi. 459. 61 Barb. 
 
 Tliunder Bay E. Boom Co. v. Speechley, N. S. 
 
 xiv. 712. 31 Mich. 3'36. 
 Tiblw ir. Brown, O. S, ii. 120. 2 Grant 39. 
 Tibbs V. Morris, N. S. v. 378, 384, 441. 44 Barb. 
 
 138. 
 Tide- Water Co. v. Coster, N. S. vii. 701. 3 C. E. 
 
 Green 54, 618. 
 Tim V. City of Buffalo, N. S. xiii. 127. 65 Barb. 
 
 460. 
 Tilden v. Blair, N. S. xiv. 522. 21 Wall. 211. 
 Tildeu V. Minor, K. S. xiii. 51. 45 Verm. 1'J6. 
 Til ford V. Fleming, N. S. x. 410. 64 Penna. St. 
 
 300. 
 Tillman v. Shackelton, N. S. vi. 036. 15 Mich. 
 
 447. 
 Tims «. The State, 0. S. iv. 191, 252. 26 Ala. 
 
 165. 
 Tinker t). Morrill, N. S. vi. 775. 39 Verm. 477. 
 Tinney, Adni'x v. B. & A. E. E. Co., N. S. xi. 
 
 723. 62 Barb. 218. 
 Tinsley v. Lacy, N. S. ill. 628. 32 L. J. Chane. 
 • 535; IIW.E. 876. 
 
 Tioga Railroad v. Blosburg & Corning Eail- 
 road, N. S. xiv. 196, 257. 20 Wall. 137. 
 Titcomb v. Morrill, N. S. v. 382. 10 Allen 15. 
 Titiow II. Titlow, N. S. vii. 319. 64 Penna. St. 
 
 21s. 
 Titus i>. The Cairo & Fulton Eailroad Co., N. 
 
 S xiv. 252. 8 Vroom 98. 
 Titusville Novelty Iron-Works' Appeal, N. S. 
 
 xiv. 756. 77 Penna. St. 104. 
 Tobey v. Chipman, N. S. vii. 64. IS Allen 123. 
 Tobey«. Miller, N. S. vii. 443. 54 Me. 480. 
 Tobias v. Ketchura, N. S. i. 634. 36 Barb. 304. 
 Tobin V. Portland E. E. Co., N. S. xi. 597. 59 
 
 Me. 183. 
 Todd V. Grove. N. S. x. 409. 33 Md. 188. 
 Todd V. Inhabitants of Rowley, N. S. iv. 119. 
 
 8 Allen 51. 
 Todd It. Kerr. N. S. iv. 313. 42 Barb. 317. 
 Todd V. Lorah, N. S. xiv. 198. 75 Penna. St. 
 
 551. 
 Toddi). Taft. N. S. iii. 697. 7 Allen 371. 
 Todd V. Old Col. & F. E. R. E., N. S. iii. 605. 7 
 
 Allen 207. 
 Tompkins v. Dudlev, N. S. iii. 56. 11 E. P.-- 
 
 Smith (N. Y.)272. 
 TompkinsD. Phillips. O. S. ii. 318. 12 Geo. 52. 
 Tomson v. Judge, O. S. iv. 316. 3 Drew 306. 
 Tong V. Marvin, N. S. vi. 318. 15 Mich. 60. 
 Topfi). King, N. S. vi. 719. 26 Ind. 391. 
 Topping V. Bickford, N. S. 11. 181. 4 Allen 
 
 120. 
 Tow-Boat Co. v. Railroad Co., O. S. v. 280. 23 
 
 Howard 209. 
 Towers v. Silsby & Smith, N. S. viii. 502. 41 
 
 Verm. 288. 
 Towing Co. V. R. E. Co., 0. S. v. 280. 23 How. 
 
 209. 
 Towle V. Towle. N. S. vi. 316. 46 N. H. 431. 
 Town V. Holton. N. S. xi. 719 .51 N. H. 209. 
 Town of Cavendish v. Town of Troy, N. S. viii. 
 
 639. 41 Verm, 99.'- 
 Town of Colebrook v. Merrill, N. S. v. 70S. 46 
 
 N. H. 160. 
 Town of Lisbon v. Holton, N. S. xi. 719. 51 N. 
 
 H. 209. 
 Town of Queensbury v. Culver, N. S. xiu. 652, 
 
 19 Wall. 83. 
 Town of Union v. Durkee, N. S. xiv. 708. 9 
 
 Vroom 21. 
 Town of Wardsboro ?'. Whitingham (Dover), 
 
 N. S. xiii. 57. 45 Verm. 450. 
 Town Council v. Elliott, O. S. iv. 638. 5 Ohio 
 
 St. 113. 
 Townsend v. Maynard, N. S. iii. 572. 45 Penna. 
 
 St. 198. „ „„„ 
 
 Townsend v. Eiley. N. S. vi. 251. 46 N. H. 300. 
 Townsend et al. v. Shepard, N. S. xii. 399. 64 
 
 Barb. 39. 
 
1080 
 
 TABLE OF ABSTRACT OASES; 
 
 Townsend v. Water Commls'rs, N. S. xiv. 63. 
 
 63 111. 26. 
 Town.ship Norwegian, Case of, O. S. i. 442. 20 
 
 20 Penna. St. 304, 
 Township v. Easton & Amboy Railroad Co., 
 
 N. S. xiii. 330. 9 C. E. Green 217. 
 Township ». Herrold, N. S. vili. 633. 68 Penna. 
 
 St. 106. 
 Township of Leoni v. Taylor, N. S. i. 537. 20 
 
 Mich. 148. 
 Township v. Taylor, N. S. x. 637. 20 Mich. 148. 
 Toaerti. Tozer, O. 8. ii. 610. 
 Tracy v. Atherton, N. S. iv. 66. 35 Verm. 52. 
 Traders' Bank v. Campbell, N. S. xii. 119. 14 
 
 WaU. 87. 
 Train (Frain) v. State, N. S. ix. 511. 40 Geo. 
 
 529 
 Traip V. Traip, N. S. x. 71. 57 Me. 268. 
 . Trask v. Martin, O. S. iii. 444. 1 E. D. Smith 
 
 ■ 605. , 
 
 Travis v. Thompson, N. S. ii. 24S. 37 Barb. 236. 
 Treat v. Bates, N. S. xlii. 627. 27 Mich. 390. 
 Treat v. Eielly, N. S. viii. 605. 35 Cal. 129. 
 Treat v. Smith, N. S. vii. 448. 54 Me. 112. 
 Trevino v. Fernandez, O. S. iv. 446. 13 Texas 
 
 630. 
 Trevor v. Steamboat Ad. Hine, N. S. iv. 436. 
 
 17 Iowa 349. 
 Tripp V. Hasceig, N. S. x. 473. 20 Mich. 254. 
 Trough's Estate, N. S. xiv. 122. 75 Penna. St. 
 
 116. 
 Trowbridge v. Holden, N. S. x. 637. 68 Me. 117. 
 Trowbridge (Hines) v. Rawson, Adm'x, N. S. 
 
 Ix. 511. 40 Geo. 356. 
 Trowbridge v. Wetherbee, N. S. vi. 122. U Al- 
 len 361. 
 Troy City Bank u. Bowman, N. S. v. 182. 43 
 
 Barb. 639. 
 Trudo V. Anderson, N. S. Ii. 126. 10 Cooley 357. 
 True V. Collins, N. S. i. 604. 3 Allen 438. 
 True V. Huntoon, N. S. xiv. 399. 54 N. H. 121. 
 Truman. In re., N. S. ix. 192. 44 Mo. 181. 
 Trustees of Ind. Pres. Church v. Proctor, N. S. 
 
 xiv. 583. 66111.11. 
 Trustees of Village of Jordan v. Otis, N. S. ii. 
 
 123. 37 Barb. 50. 
 Tuck V. Moses, N. S. vii. 447. 54 Me. 115. 
 Tucker v. CaU, N. S. xiv. 61. 45 Ind. 31. 
 Tucker v. Cochran, N. B. vii. 254. 47 N. H. 54. 
 Tucker v. Harris. O. S. ii. 380. 13 Geo. 1. 
 Tucker v. Kenniston, N. S. vii. 263. 47 N. H. 
 
 267. 
 Tucker v. Mowrey, N. S. iii. 766. 12 Mich. 
 
 ■ 378. 
 
 Tucker 0. Woolsev. N. S. xii. 596. 64 Barb. 142. 
 Tucker's Appeal,"N. S. xiv. 264. 75 Penna. St. 
 
 354. 
 Tuokerman v. Hinkley, N. S. iv. 764. 9 Allen 
 
 452. 
 Tunnard v. Littell, N. S. xii. 323, 327. 8 C. E. 
 
 Green 264, 
 Turfler, Matter of, N. S. v. 381. 44 Barb. 46. 
 Turner v. Board of Co. Comm'rs, N. S. xii. 125. 
 
 lO.Kans. 16. 
 Turners Jaycox, N. S. iii. 319. 40 Barb. 164. 
 Turner v. Waldo, N. S. vii. 674. 40 Verm. 51. 
 Turnpike i).,Union R. R. Co., N. S. xi. 530. 35 
 
 Md.224. 
 .. Turnpike Co. v. Loomis, N. S. iv.575. 5 Tiffany 
 
 127. 
 Turrill ti. R. E, Co.. N, S. iv. 116. 1 Wall. 491. 
 Tuttle V. Hoag. N. S, ix. 642. 46 Mo. 38. 
 Tuttle V. Standish, N. S. 1. 766. 4 Allen 481. 
 Tutton V. Addams, N. S. iii. 574. 45 Penna. 
 
 St. 67. 
 Tweedy v. Sampson, N. S. xiv. 391. 51 Ala. 
 Twiss V. Cheever, N. S. i. 57. 2 Allen 40. 
 Tyler v. Hook, O. S. i;i. 700. 19 J, P. 326. 
 Tyler v. Willis, N. S. i, 378. 35 Barb. 213, , 
 Tyson i;. Jackson.N. S. iii. 441. SO Beav. 384, 
 
 TJdderzook v. Commonwealth, N. S. xiv. 583. 
 
 76 Penna, St. 340. 
 Ddell V. Atherton, lO. S. ix. 703. 4 L. T., N. S. 
 
 797. 
 
 Chler V. Pemple, N. S. Ix. 389, 399. 5 C. E. 
 
 Green 288. 
 Ulp V. Campbell, 0. S. i. 122. 19 Penna, St. 361. 
 Underwood i. Waldron, N, S. iii. 188. 12 Mich. 
 
 73. 
 Union Bank v. Mott. N. S. lil. 60. 89 Barb. 180. 
 Union Bank of Rochester v. Gregory, N. S. yi. 
 
 67. 46 Barb. 98. 
 Union Co. v. James, O. S. 'ii. 123. 21 Penna. St. 
 
 525. 
 Union Canal Co.'s Appeal, N. S. x. 405. 64 
 
 Penna. St. 387. 
 Union Express Co. v. Erie Railway Co., N. S, 
 
 xiii. 391. 8 Vroom 23. 
 Union Pacific K. R. Co. u. Hand, N. S. x. 472, 
 
 478. 7 Kans. 380. 
 Union. Town of v. Durkes, N. S. xiv. 708. 
 
 9 Vroom 21. 
 United States v. Addison, N. S. vii. 575. 6 
 
 Wall. 101. 
 United States v. AUsbury, N. S. vi. 575. 4 Wall. 
 
 186. 
 United States v. Block, 121; N. S. xiii. 124. 3 
 
 Bis. 
 United States v. Bontwell, N. S. xiii. 330. 17 
 
 WaU. 604. 
 United States v. Brig Neptune, 0. S. iii. 48. 
 United States v. Castillero, N. S. Iii. 62. 2 
 
 Black 17. 
 United States v. Cutting, N. S. v. 665. 3 Wall. 
 
 441. 
 United States v. Dashiel, N. S. vi. 442, 575. 4 
 
 Wall. 182. 
 United States v. Dewitt, N. S. ix. 451. 9 Wall. 
 
 41. 
 United States v. Fisk. N. S. v. 565. 3 Wall. 445. 
 United States v. Forty-three Gals. Whis., La- 
 riviere et al. Claim'ts, N. S. xiii. 583. 
 United States v. Foster, N. S. xii..466. 2 Bis. 
 
 377, 453. 
 United States v. Galbralth, N. S. iii. 51. 2 
 
 Black 894. 
 United States v. Gilmore, N. S. ix. 198. 8 WaU. 
 
 330. 
 United States v. Grossmayer, N. S. ix. 516. 9 
 
 Wall. 72. 
 United States v. Hanway, 0. S. ii. 698, 700. 2 
 
 Wall., Jr. 139. 
 United States v. HartweU, N. S. vii. 446. 6 
 
 WaU. 385. 
 United States v. Herron, N. S. xiv. 192. 20 
 
 WaU. 251. 
 United States D.Hoffman, N.S.vi.442. 4WaU. 
 
 168. 
 U nited States v. Keehler, N. S. ix. 510. 9 WaU . 83. 
 United States v. Lane, N. S. ix. 121. 8 Wall. 
 
 185. 
 United States v. Padelford, N. S. ix. 443. 9 
 
 Wall, 531. 
 United States ex rel. Morrow, Ex parte, N. S. 
 
 xiii. 683. 
 United States Telegraph v. Gildersleve, N. S. 
 
 viii. 692. 29 Md. 232. 
 Updegraph v. Crans, N. S. Iv. 266. 47 Penna. 
 
 St. 103. 
 Updyke v. Abel, N. S. x. 743, 747, 751. 60 Barb. 
 
 15. 
 Upham V. Wyman, N. S. iii. 699. 7 Allen 499. 
 Upington v. Oviatt, Treas., N. S. xiv. 125. 24 
 
 Ohio St. 232. 
 Upton V. Hansbrough, N. S. xii. 462. 3 Bis. 417. 
 Urie's Ex'rs v. Jenin and Wife, O. S. i. 639. 
 Usiiry v. Rainwater, N. S. ix. 646. 40 Geo, 328, 
 Utica V. Churchill, N. S. y. 122. 43 Barb. 650. 
 
 Vail V. Knapp, N. S. vii. 509, 511. 49 Barb. 299. 
 Valentine v. The Cen. N. J. E. E. Co., N. S. ii. 
 
 55. 5 Dutcher 60, 561. 
 Valentine v. Van Wagner, N. S. ii. 61. 37 Barb. 
 
 60. 
 Valentine v. Decker, N. S. viii. S78. 43 Mo. 683. 
 VaUandlgham, Ex parte, N. S. iv. 55. 1 Wall. 
 
 243. 
 Van Akin v. Caler, N. S. vi. 775. 48 Barb. 58. 
 ^Yan Allen v. Assessors, N. S. vi. 436. 3 Wall. 573. 
 
TABLE OF ABSTRACT CASES. 
 
 1081 
 
 Van Bniut v. Wakelee, N. S, ii. 570. 11 Mich. 
 
 177. 
 Vail Bureu v. The State, O. S. 1. 700. 24 Mi&s. 
 
 ol2. 
 Vanderbilt, The, N. S. vii. 575. 6 WaU. 225. 
 Vanderslip v. lioe, O. S. ii. 572. 
 Vandewalker u. Osmer, N. S. xiii, 200. 65 Barb. 
 
 ;x;6. 
 y.uulike's Appeal, N. S. viii. 316. 57 Penna. 9. 
 \ uii Doren v. Van Doreu's (Olden) Trustee, N. 
 
 .->. viii. 189. i C. E. Green 176. 
 Van Dorveer v. Sutphin, O. S. iv. 698. 5 Ohio 
 
 St, 293. 
 Van Dylie v. State. O. S. iii. 54. 24 Ala. 81. 
 Van Emau et al. v. Walker etal..N. S. x. 200 47 
 
 -Mo. 169. 
 Tan Guysling v. Van Kureu, N. S. Ti. 255. 8 
 
 Tiffany (N. Y.) 70. 
 Van Hastrup v. Madison City, N. S. iv. 115. 1 
 
 Wall. 291. 
 Van Husan v. Kanouse, N. S. iv. 571, 576. 13 
 
 Mich. 303. 
 Vankirk v. Pennsylvania E. R. Co., N. S. xiv. 
 
 462. 76 Penna. St. 66. 
 Vaunevar v. Bryant, N. S. xiv. 463. 21 Wall. 41. 
 Van Norman v. Wheeler, O. S. iv. '145. 13 Texas 
 
 316. 
 Van Nostrand v. Carr, N. S. Ix. 317. 30 Md. 
 
 123. 
 Vanquelin v. Bouard, N. S. iii, 438, 627. 12 W. 
 
 R. 128 C. P. ; 9 L. T., N. S. .i82 C. P. 
 Van Rensselaer v. Kirkpatrick, N. S. vi. 190. 
 
 46 Barb. 194. 
 Van Riper v. Essex Public Board, N. S. xiv. 710, 
 
 711. 9 Vroom 23, 
 Van Sehiek (Schaik) v. Third At. E. R. Co., N. 
 
 •■S. vii. 573. 49 Barb. 409. 
 Vantine v. Lake, O. S. ii. 699. 2 Wall., Jr. 52. 
 Van Trott v. Weisse, N. 8. xiv. 255. 36 Wis. 
 
 430. 
 Van ValkenbuTgh v. Mayor of N. Y., N. S. iv. 
 
 4:». 43 Barb. 109. 
 Van ValkenbuTgh v. Stupplebeen, N. S. vii. 380. 
 
 49 Barb. 99. 
 Van Valkenburgh v. Thayer, N. S. x. 72. 57 
 
 i;.irb. 196. 
 Ys.a V/inkle v. U. S, Mail Steamship Co., N. S. 
 
 ii. 124. 37 Barb. 121. 
 Varnum v. Meserve, N. S. iv. 188. 8 Allen 158, 
 Va-on V. City of Augusta, N, S. viii. 316. 38 
 
 Geo. 542. 
 Vaughan v. Vanderslagen, O. S. iii. 125. 2 
 
 Drewry 16.5. 
 Vaughan and Telegraph, The, N. S. xii. 124. 
 
 14 Wall. 2.58. 
 Veasey v. Doton, N. S. i. 569. 3 Allen 380. 
 Veasy v. Moore, O. S. 1. 376. 14 How. 568. 
 Veazie v. Somerby, N. S. iii. 64. 5 Allen 280. 
 Veghte V. Raritan Water Pow. Co., N. S. viii. 
 
 191. 4 C. B. Green 142. 
 Veuard v. Cross, N. 3. xi. 334. 8 Kans. 248. 
 Verges v. Giboney, N. S. x. 203. 47 Mo. 171. 
 Vermilye & Co. v. Adams Ex. Co., N. S. xiv. 
 
 ,521. 21 Wall. 138. 
 Vermont Marble Co. v. Man, N. S. v, 123. 36 
 
 Verm. 697. 
 Vernon v. Wright, O. S. vii. 567. 28 L. J. Ch. 
 
 198. 
 Viall V. Hubbard, N. S. v. 251. 37 Verm. 114. 
 Vickery v. Dickson, N. 8. i. 310, 3,5 Barb, 96. 
 Vickroy v. Pratt, N. S. x. 532. 7 Kans. 238. 
 Viele V. Goss, N. S. vii. 380. 49 Barb. 96. 
 Vincent, Ex parte, 0. S. iv. 251. 26 Ala. 145. 
 Vinton v. King, N. S. i. 766. 4 Allen 562. 
 Vinton v. Middlesex E. R. Co., N. S. vi. 62. 11 
 
 Allen 304. 
 Vittum V. Gillman, Adm'r, N. S. ix. 516. 48 
 
 N. H. 416, 
 Voight V. Hoeflinger, N. S. xii. 469. 31 Wis. 
 
 257. 
 Volant V. Soyer and Symons, O. S. ii, 60. 22 
 
 Law J. (N. S.) C, B. 83. 
 Von Hofifman v. City of Quincy, N. S. vi. 632. 
 
 4 Wall, ,535. 
 Von Ketler v. Johnson, N. S. xii. 323, 57 111, 
 109, 117. 
 
 Voorhis v. Voorhis, N, S. vii, 037, 640. 50 Earb. 
 
 Vose V. Cockroft, N. ,■;, v, 570. ii Barb 58 
 Voyle V. Hughes, O. s. iii, 122, 23 L. J. Ch. 238. 
 
 W, & Md. R. R. Co. r, Orendorff, N. S. xii. 785, 
 
 37 Md. 328, 
 
 Waddingham's Executors v. Loker, N. S ix 
 
 193. 44 Mo. 132. 
 Waddle v. Harbeck, N. S. x, 747. 33 Ind 231 
 Wade V. Bowling, O. S. iii. 121, 18 Jur. (Q b'.I 
 
 728. 
 Wade V. State ex rel. KLx, N. S. xii. 534. 37 Ind. 
 
 Wade V. The State, O. S. ii. 319. 12 Geo, 25. 
 WalHe V. Dillenbeck, N. S. ii, 765. 39 Barb. 123. 
 Waffle V. Porter, N. S. xi, 400. 61 Barb. 130 
 Wagner v. Corkhill, N. S. iii. 319. 40 Barb. 175., 
 Wagner's Appeal, N. S. ii. 634. 43 Pepna. St. 
 
 102, ^ 
 
 Wainwright v. McCullough, N. S. i. 71. 63 
 
 Penna. St. 66. 
 Wakefield v. Con. & Pas. River R, R. Co., N. 
 
 S. iv. 256, 382, 37 Verm. 330, 
 Wakefield v. Estate of Merrick, N. S. v. 767. 
 
 38 Verm. 82. 
 
 Walbridge r. Arnold and Another, O. S. i, 566. 
 
 21 Conn. 424. 
 Waldrou v. Letson, N. S.vi. 571. 2 McCarter 
 
 126. 
 Wales V. China Mutual Ins. Co., N. S. iv. 314. 
 
 8 Allen 380. 
 Wales V. Newbold, N, S. i, 184. 5 Cooley 45. 
 Walker v. Ey th ,0.8. iv. 443. 25 Penna. St. 216. 
 Walker v. Hill, N. S. x. 276. 6 C, E. Green 191. 
 Walker v. Kretsinger, N. S. ix. 387. 48 111. 502. 
 Walker v. Pierce, N. S. v. 767, 38 Verm. 94. 
 Walker v. Staples, N. 8, ii. 444. 5 Allen 34. 
 Walker v. State, N. 8. xiii. 454. 49 Ala. 398. 
 Walker v. State Harbor Com,, N. S. xiii. 335. 
 
 17 Wall. 618. 
 Walker v. The Granite Bank, N. S, v. 318, 44 
 
 Barb, 39. 
 Walker v. Town of Westfleld, N. S. vi, 570. 39 
 
 Verm, 246, 
 Walker v. United States, N. S. vi, 445. 4 Wall. 
 
 163, 
 Walker v. Vincent, 0. 8. i, 125. 19 Penna. St. 
 
 369. 
 Walker v. Walker's Ex'r, N. S. ix. 448. 9 Wall. 
 
 743. 
 Wall V. Arrington, O. S. ii, 381, 13 Ga. 88. 
 Wall V. Trumbull, N. S vii. l.M, 16 Mich. 228. 
 Wallace v. Alford, N. S. ix. 637, 39 Ga. 609. 
 Wallace v. McElroy, O. 8. i, 124, 
 Wallace v. McLaughlin, N, 8. xii. 203. 57 111. 53. 
 Wallace r. Metzker, N. 8. xiii. ISO. 41 Ind. 346. 
 Wallace v. The People, N. 8. xiv. 54. 63 Hi. 
 
 451. 
 Wallerstein v. Columbian Ins. Co.. N. 8. x, 709. ^ 
 
 5 Hand (N. Y.) 204. 
 Walli-s V. Carpenter, N. S, vii. 120. 13 Allen 19. 
 Walmsley v. Robinson, N, S. xiv. ,55. 63 111. 41. 
 Walrath v. Ingles, N, S. xii, 600. 64 Barb. 265. 
 Wals v. Grosvenor, N, 8. xii. 471. 31 Wi.s, 681. 
 Walsh V. Barton, N. S. xiii. 647, 655. 24 Ohio 
 
 St. 28. 
 Walsh V. Burton. N, 8. xiii. 654. 24 Ohio St. 28. 
 Walsh V. Kelly, N, S. iv, 123. 42 Barb, 98. 
 Walsh V. Sexton, N, S. ix. 261. 55 Barb. 251. 
 Walsh's Case, O. 8. ii, 697. 2 Wall., Jr. 143. 
 Walton, Ex'r, v. McKesson, N. 8. ix. 385. 64 
 
 N. C.77. 
 Wanamaker v. Bowes, N. 8. xii. 61. 36 Md. 42. 
 Wann v. W. U. Telegraph Co., N. S. vi. 63. 37 
 
 Mo, 472. 
 Wanzer v. De Baun, 0. 8. iii, 442, 1 E, D. Smith 
 
 261. 
 Ward V. Chamberlain, N, S. iii. 63. 2 Black 430. 
 Ward V. Kelsey, N. S. ii. 631. 38 Barb. 269. 
 Ward V. Masterson, N. 8, xii. 535. 10 Kans. 77. 
 Ward V. McCorkill, O. 8, ix, 704. 4 L. T. N. S. 
 
 810. 
 Ward 1', The Town of Jefferson, N. S. ix. 263. 
 24 Wis, 342. 
 
lofe 
 
 TABLE OF ABSTKACT CASES.' 
 
 Ward V. Ward, 0. S. 1. 309. 21 L. J. (Exoli.) 
 
 334. 
 Warden v. State, N. S. xiii. 776. 24 Ohio St. 
 
 143. 
 VVardsboro, Town of o. Whitingham, N. S. xlil. 
 
 67. 45 Verm. 460. 
 Ware v. Canal Co., 0. S. vii. 509. 28 L. J. Cli. 
 
 .163. 
 Ware v. Egmont, O. S. iii. 700. 24 L. J. Ch. 361. 
 Ware v. Regent's Canal Co., O. S. vii. 6U9. 28 
 
 L. J. Ch. 163. 
 Ware et al. v. Sharp, 0. S. i. 879. 1 Swan 489. 
 Ware v. United States, N. S.vi. 639. 4 Wall. 617. 
 Wareham Bank v. Burt, N. S. ii. 568. 5 Allen 
 
 113. 
 Waring v. Grady, N. S. xiii. 61. 49 Ala. 465. 
 Waring v. The Mayor, N. S. ix. 56. 8 Wall. 110. 
 Warlow V. Harrison, O. S. vii. 605. 28 L. J. 
 
 (Q. B.) 18. 
 Warner.ii. Ins. Co., O. S. i. 569. 21 Conn. 444. 
 Warner%. Middlesex M. Ins. Co., 0. S. i. 669. 
 
 21 Conn. 444. 
 Warren v. Blalce, N. S. vii. 442. 64 Me. 276. 
 Warren v. Ferdinand, N. S.iv. 765. 9 Allen 357. 
 Warren v. Fitchburg E. R. Co., N. S. iv. 118, 
 
 316. 8 Allen 227. 
 Warren v. Jacksonville, O. S. iii. 636. 15 111. 
 
 236. 
 Washburn v. N. Y. and V. Mining Co., N. S. 
 
 viii. 631. 41 Verm. 60. 
 Washington Co. u. Marshman's Bail, 0-. S. ii. 
 
 122. 
 Washington Ins. Co. v. Davison, N. S. ix. 449. 
 
 30 Md. 91. 
 Wass V. Maine Mutual Ins. Co., N. S. xiii. 260. 
 
 61 Me. 537. 
 Waterman v. Hawkins, N. S. xiv. 528. 63 Me. 
 
 156.- 
 Waters v. Sticknev, N. S. vi. 384. 12 Allen 1. 
 Waters v. Towers, O. S. ii. 60. 22 L. J. (.N. S.) 
 ■ Exoh.186. 
 Waters v. Wing, N. S. viii. 758. 59 Penna. St. 
 
 211. 
 Waters v. Young, N. S. xiv. 398. 11 E. I. 
 Water-Works Co. v. Burkhardt, N. S. xiii. 254, 
 
 262. 41 Ind. 364. 
 Watson V. Evans, N. S. iii. 440. 32 L. J. Exch. 
 
 137. 
 Watson V. Muirhead, N. S. viii. 310. 67 Penna. 
 
 St. 161. 
 Watson V. Murray, N. S. xii. 320. 8 C. B. Green 
 
 257. 
 Watson V. Eussell, N. S. iii. 440. 31 L. J. (Q. B.) 
 
 304. 
 Watson V. Sutherland, N. S. vii. 61. 5 Wall. 74. 
 Watson V. Tripp, N. S. xiv. 394. 11 R. I. 
 Watson's Ex'rs v. Stern, N. S. xiv. 626. 76 
 
 Penna. St. 121. 
 Watts V. Cummins, N. S. viii. 697. 59 Penna. 
 
 St. 84. 
 W'atts V. Sawyer, N. S. xiv. 458. 56 N. H. 88. 
 Waverly Nat. Bank v. Halsey, N. S. ix. 713. 67 
 
 Barb. 21'.i. 
 Way V. Dame, N. S. vi. 126. U Allen 357. 
 Way V. Tovviisend, N. S. i. 690. 4 Allen 114. 
 Wayne and Ontario Collegiate Institute v. 
 
 Greenwood, N, S. iii. 190. 40 Barb. 72. 
 Wayne v. Commercial Nat Bank, N. S. vi. 631. 
 
 52 Penna. St. 343. 
 Wavne County v. Benoit, N. S. x. 541. 20 Mich. 
 
 176. 
 Weale v. Oliver, N. S. iv. 320. 32 Beav. 421. 
 Weaver v. Darby, N. 8. iv. 379. 42 Barb. 411. 
 Weaver v, Jones, O. S. iii. 57. 24 Ala. 420. 
 Weaver v. Kruntzman, 0. S. 1. 443. 20 Penna. 
 
 St. 422. 
 Weaver's Appeal, N. S. x. 192. 63 Penna. St. 
 
 309. 
 Webb V. Stuart, N. S. xl. 530. 59 Me. 366. 
 Webster v. Adams, N. S. x. 604. 68 Me. 317. 
 Webster v. Byrnes, N. S x. 130. 32 Md. 86. 
 Web-ster v. Byrnes, N. S. viii. 185. 34 Cal. 
 Webster v. Carpen, O. S. i. 376. 
 Webster v. Polsom, N. S. x. 603. 58 Me. 230. 
 Webster v. Phcenix Ins. Co., N. S. xiv. 320. 36 
 
 Wis. 67, 
 
 Webster v. Van Steenbergh, N. S. vi. 185, 192. 
 
 46 Barb. 211. 
 Webster v, Webster, N. S. x. 603. 68 Me. 139. 
 Webster et al. v. Zielly, N. S. viii. 441. 52 Barb. 
 
 482. 
 Weeks v. Jewett, N. S. v. 704. 45 N. H. 540. 
 Weeks v. Lippincott, N. S. ii. 505. 42 Penna. 
 
 St. 474. 
 Weigel V. Walsh, N. S. ix. 647. 45 Mo. 660. 
 Weil V. Ricord, N. S. xiii. 60. 9 C. E. Green 
 
 169. 
 Weil V. Tyler, N. S. viii. 378. 43 Mo. 581. 
 Weisbrod v. Daenicke, N. S. xiv. 705. 36 Wis. 73. 
 Weist V. Grant. N. S. xii. 792. 71 Penna. St. 95. 
 Wellcome v. Eiley, N. S. xii. 599. 52 N. H. 
 
 139 
 Wellfleet v. Truro. N. S. v. 186. 9 Allen 137. 
 Wells V. Beal, N. S. xii. 533. 9 Kans. 597. 
 Wells V. Jackson Iron Co., N. S. xi. 663. 50 N. 
 
 H. 85. 
 Wells V. Jackson Iron Co., K. S. ix. 513, 520. 48 
 
 N. H. 491. 
 Wells V. Jackson I. Manufr. Co., N. S. xi. 56. 
 
 50 N. H. 85. 
 Wells V. Kelsey, N. S. ii. 631. 38 Barb. 242. 
 Wells V. Mann, N, S. viii. 378. 52 Barb. 263. 
 Wells V. Mitchell. N. S. vi. 508. 39 Miss. 800. 
 Wells D. N. Y. Cent. R. R. Co., N. S. u. 123. 10 jt 
 
 E. P. Smith (N. Y.) 181. ^ 
 
 WeUs V. Ragland, O. S. i. 380. 1 Swan 501. 
 Wells V. Selwood. N. S. xi. 399. 61 Barb. 238. 
 Welsh V. Cutler. N. S. iii. 127. 44 N. H. 661. 
 Wenge's Execr's (Eberly) v. Groff & GroBf, O. .S. 
 
 i. 633. 21 Penna. St. 251. 
 Wensworth (Weritworth) v. Town of Farming- 
 ton, N. S. viii. 573. 48 N. H. 207. 
 Wentworth v. Farmington, N. S. xii. 62. 51 N. 
 
 H. 128. 
 Wentworth v. Eemick, N. S. vii. 254. 47 N. H. 
 
 226. 
 Wertz V. May, O. R. i. 632. 21 Penna. St. 274. 
 Wesson v. Washburn Iron Co., N. S. vii. 125. 13 
 
 Allen 95. 
 West 11. Hall, N. S. ix. 390. 64 N. C. 43. 
 West V. Old Colony Ins. Co., N. S. v. 127. 9 
 
 Allen 316. 
 West V. The American Exchange Bank, X. S. 
 
 V. 504. 44 Barb. 175. 
 Western Mass. Ins. Co. v. Eiker, N. S. ii. 127. 
 
 10 Cooley 279. . 
 West Jersey R. Co. v. Thomas, N. S. *. 313. 6 
 
 C. E. Green 205. 
 West River Bank v. Gale. N. S. ix. 641. 42 
 
 Verm. 27. 
 West River Bank v. Taylor, N. S. ii. 662. 7 
 
 3osw. 466. 
 Weston V. Grand Trunk R. R. Co., N. S. vii. 
 
 440. 54 Me. 376. 
 Weston V. McDowell, N. 8. x. 605. 20 Mich. 353. 
 Weston V. Myers, N. S, iv. 704. 33 111 424. 
 Wetherbee v. Dunn, N. S. viii. 696. 36 Cal. 147, 
 
 249. 
 Wetherill ■„. Stillman, N. S. x. 536. 65 Penna. 
 
 St. 105. 
 Wetherill v. Wetherill, O. S. i. 637. 18 Penna. 
 
 St. 265. 
 Wetmore v. Brown, N. S. ii. 125. 87 Barb. 173. 
 Wetmore v. Hodd, O. S. iii. 123. 18 Jur. C. P. 
 
 630. 
 Wharlton v. Kirkwood, N. 8. xiii. 592, 29 L. T. 
 
 N. S. 644. 
 Wliedon v. Champlin, N. S. x. 475. 69 Barb. 61. 
 Wheeler v. Cilv of Worcester, N. S. v. 575. 10 
 
 Allen 591. 
 Wheeler v. Kirtland, N. 8. xii. 320. 8 C. E. 
 
 Green 13. 
 Whseler v. Town of Westport, N. S. xii. 122. 
 
 30 Wis. 392. 
 Wheeler, The 8. B., N. 8. xiv. 249. 20 Wall. 385. 
 Wheeler v. Walker, N. S. iv. 505. 45 N. H. STa. 
 Wheeler 1). Woodward. N. S. x. 800. 66 Penna. 
 
 St. 158. 
 Whicher v. Whioher, N. 8. xi. 51. 49 N. H. 
 
 176. 
 Whistler v. Foster, N. S. iii. 440. 14 C. B. N. 3. 
 
 248. 
 
TABLE OF ABSTKACT CASES. 
 
 1083 
 
 Whittaker v. Burham (Burhans), N. S. xi. 724. 
 
 62 Barb, 237. 
 Whitoker v. Eastwick, K. S. xiv. 199. 75 Fenna, 
 
 St. 229. 
 Wlutcomb V. Hungerford, N. S. iy. 1S3, 193. 42 
 
 Barb. 177. 
 Whitconib v. Kephart, N. S. v. 440. 60 Penna. 
 
 W.85. 
 Whitcher v. Morey, N. S. vii.187, 188. 39 Verm. 
 
 459. 
 Whitcher v. Town of Landaff, N. S. viii. 573. 48 
 
 N. H. 153. 
 While V. Calder, N. S. vi. 319. 8 Tiffany (N. Y.) 
 
 18S. 
 White V. Chapin, N. S. vi. 569. 12 Allen 516. 
 White M. li. K. Co. v. Bay S. Iron Co., N. S. xi. 
 
 660. 60 N. H. 57. 
 White II. Port Huron, &e., E. E. Co., N. S. v. 58. 
 
 13 Mich. 366. 
 White V. Eire, N. S. ii. 559. 5 Allen 73. 
 White V. Story, N. S. iv. 440. 43 Barb. 124. 
 White V. Tompkins, N. S. vi. 635. 62 Penua. 
 
 St. 363. 
 White V. Williams, N. S. vii. 187. 48 Barb. 222. 
 Whitehall v. Crawford et al., N. S. xii. 661. 37 
 
 Ind. 147. 
 Whiteside r. Margarel, K. S. x. 122. 51 III. 607. 
 Whiteside Co. v. BurdieU, N. S. iii. 6S1. 31 111. 
 
 68. 
 Whitfield I'. Zellnor, 0. S. i. 700. 24 Miss. 663. 
 Whitford v. Lynch, N. S. xii. 595. 10 Kans. 
 
 180. 
 Whitehead v. Keyes, K. S. i. 567. 3 Allen 495. 
 Whitley v. Davis, Lessee, O. S. i. 381. 1 Swan 
 
 333 
 Whitman's Case, O. S. ii. 698. 2 Wall., Jr. 147. 
 Whitmore v. South Boston Iron Co., N. S. i. 177. 
 
 2 Allen 52. 
 Whitney i'. Bartholomew, O. S. i. 669. 21 Conn. 
 
 213. 
 Whitney v. Haverhill Ins. Co., N. S. v. 126. 9 
 
 Allen'35. 
 Whitney v. Inhab. of Sherbom, N. S. vi. 316. 
 
 12 Allen 111. 
 Whitney v. Whitney, N. S. vli. 509. 49 Barb. 
 
 319. 
 Whitten v. Hayden, N. S. iii. 696 7 AUep 407. 
 Whittenton Mills v. Upton, N. S. iii. 184. 10 
 
 Gray 682. 
 Whittier v. Mclntyre. N. S. xi. 595. 69 Me. 143, 
 Whittier v. Town of FrankUn, N. S. v. 704. 46 
 ' X H 23 
 Wicker v. Hoppuck, N. S. vli. 376, 377. 6 Wall. 
 
 94 
 Wic'kersham (AUen) v. Corlew, N. S. xii. 698. 
 
 10 Kans. 70. . „,_ „ ,,, 
 
 Wiggins V. Cumlngs, N. S. iv. 317. 8 Allen. 
 
 3.53 
 Wighand v. Pickett, N. S. viii. 701. 45 Ala. 
 
 Wight V. Thayer, O. S. iii. 59. 1 Gray 2M. 
 
 Wilcox, Ad'm'x v. Wilcox, N. S. vii. 56, 127. 48 
 
 Wild Cat Branch v. Ball, N. S. xiv. 53. 45 Ind. 
 
 213 
 WUderi;. Russell, N. 8. vi. 383. 
 Wiles V. Peck, N. S. iii. 568. 12 E. P. Smith, N. 
 
 Y 42 
 Wilev V. The State, 0. S. i. 380.. 1 Swan 2.56. 
 Wilkinson D.Eogers. N. S. ill. 692. 12 W.R. 
 
 iiQ'QT T NS 434 
 Wilkinson s.SteWart, N. S. iii. 313 30 I". f8- 
 Wilkinson v. Vorce, N. S. m. 763. 41 Barb. 
 
 Wilkinson's Appeal, N. S. x. 538. 65 Penna. 
 
 wflklowt.. Lane, N.S.ii. 247. 37 Barb. 244. 
 Willard v. City of Cambridge, N. S. 1. 568. 6 
 
 wmard ?-^ Danville, N. S. xii 727. 45 Verm 93. 
 Willard V. Kimball, N. S. v. 447. 10 Allen 211. 
 Williams v. Bowdon, O. S. 1. 379. 1 Swan 282. 
 
 Williams v. Byrnes, N. S. iii. 627. 8 L. T., N. S. 
 
 69. 
 Williams v. Coward, O. S. ii. 510. 1 Grant 21. 
 Williams v. Elkins, N. S. x. 195. 1 Heiskell 88. 
 WilUams v. Franklin Township A. A., N. S. vi. 
 
 715. 26 Ind. 310. 
 Williams v. Kingman, N. S. ii. 183. 10 E. P. 
 
 Smith N. Y. 559. 
 Williams v. Phcenix Ins. Co., N. S. xiii. 123. 61 
 
 Me. 67. 
 Williams v. The State, N. S. xiv. 701. 62 Ala. 
 
 26, 411. 
 Williams' Appeal, N. S. iv. 312, 440. 47 Penna. 
 
 St. 283, 307. 
 Williamson, Exc'r v. Goodwin, O. S. iii. 53. 9 
 
 Grat. 503. 
 Williamson v. Wadsworth, N. S. vii. 508. 49 
 
 Barb. 294. 
 Willis V. The State, O. S. ii. 319. 12 Ga. 444. 
 Willoughby v. Horridge. O. S. ii. 61. 22 Law 
 
 J. (N. S.) C. B. 90. 
 Willoughby v. Moulton, N. S. vii. 251. 47 N. 
 
 H. 205. 
 Will's Appeal, 0. S. ii. 184. 22 Penna. Kt, 325. 
 Wills (Mills) r. Smith, N. S. ix. 69. 8 Wall. 27. 
 Wilmot V. Howard, N. S. vi. 774. 39 Verm. 447. 
 Wilson V. Barnett, N. S. xiv. 61. 46 Ind. 163. 
 Wilson V. Brown. N. S. i. 763. 1 Beasley 246. 
 Wilson I'. Carey, N. S. vii. 634. 40 Verm, 179. 
 Wilson ti. Cochran, N. S, iv, 640, 4a Penna, St. 
 
 107. 
 Wilson'!). Davis. N. S. xu. 631. 37 Ind. 141. 
 Wilson V. Hamilton, O. S. iv. 669. 4 Ohio St. 
 
 722. 
 Wilson V. Hill, N. S. i. 762. 2 Beasley 143. 
 Wilson V. Ins. Co., 0. S. i. 122. 19 Penna. St. 
 
 372. 
 Wilson V. Lady Dunsany, O. S. iii. 124. 23 L. 
 
 J. Ch. 492. 
 Wilson V. Lester, N. S. xii. 593, 598. 64 Barb. 
 
 431. 
 Wilson V. Lyon, N. S. ix. 719. 51 111. 166, 530. 
 Wilson V. Marsh, N. S. i. 764. 2 Beasley 289. 
 Wilson V. MiUer, N. S. ix. 446. 30 Md. 82. 
 Wilson V. Sands, N. S. xii. 58. 36 Md, 38. 
 Wilson V. School Directors of Ehzabeth, O. S. 
 
 ii. 123. 
 Wilson V. Solomon, N. S, ix, 644, 51 111, 37, 
 Wilson t;. Soper, O, S, i, 444. 13 B. Monroe 
 
 411. 
 Wilson V. Terry, N. S. iv. 704. 9 Allen 214. 
 Wilson V. Trumbull M. Ins. Co., 0. S. i. 122. 19 
 
 Penna. St. 872. 
 Wilson V. Wilson, N. S. xii. 736. 37 Md. 1. 
 Wilson V. Wilson, O. S. iii. 125. 23 L. T. 134. 
 Wilson V. Wood, N. S. v. 64. 2 C. E. Green 216.. 
 Wilson V. Whitaker, N. S. v. 123. 49 Penna. St. ■ 
 
 114. 
 Wiltshear v. Cottrell, O. S. ii. 61. 1 Q. B. (Ellis 
 
 & B.) 674. 
 Winans v. Winans. N. S. viii. 186. 4 C. E. Green 
 
 220. 
 Winchell v. Edwards, N. S. xii. 265, 825. 57 HI. 
 
 41. 
 Winchester v. Nutter, N. S. xiii. 63. 52 N. H. 507. 
 Windsor v. Bandel, N. S. xiv. 250. 40 Md. 172. 
 Winfield v. Henning, N. S. x. 346. 6 C. E. Green 
 
 188. 
 Winn V. Thomas, N. S. xiv. 702. 55 N. H. 294. 
 Winner v. Penniwan, ,N. S. xi. 464. 35 Md. 163. 
 Winpenny v. Philadelphia, N. S. x. 640. 63 
 
 Penna. St. 135. 
 Winslow V. Brown, N. S. ii. 383. 7 E. I. 9o. 
 Winslow V. Lane, N. S. xiv. 457. 68 Mo. 161. 
 Winsor v. Maddock, N. S. x. 413. 64 Penna. St. 
 
 231. 
 Winsted Bank v. Webb, N. S. vi. 185. 46 Barb. 
 
 177. 
 Winter v. Winter, 0. S. ix. 703. 4 L. T., N. S. 
 
 639 
 Wintermute v. Light, N. S. vi. 186, 188. 46 Barb. 
 
 278 
 Wisconsin Imp. Co. v. Lyons, N. S. xii. 195. 30 
 
 Wiser' D. Lockwood's Estate, N. S. ix. 641. 42 
 Verm. 720. 
 
.1084 
 
 TABLE OF ABSTEACT OASES. 
 
 WitherspooD v. Duncan, N. S. vi. 445. 4 Wall. 
 
 210. 
 Wolcott V. Gibson, N. S. ix. 645. 51 111. 69. 
 Wolcott V. Whltcomb, N. S. vii. 574. 40 Verm. 
 
 40. 
 Wolf Creek Coal Co. v. Schultz, N. S. xii. 784, 
 
 785, 786. 71 Penna. St. ISO. 
 Wood V. Bach, N. S. ix. 123. 54 Barb. 134. 
 Wood V. Blanchard, O. S. vi. 434. 19 HI. 38. 
 Wood V. BuUens, N. S. iii. 373. 6 Allen 516. 
 Wood V. Edes, N. 8 i. 317. 2 All'en 578. 
 Wood V. Griffin, N. S. v. 703. 46 N. H. 230. 
 Wood V. Stockwell, N. S. viii. 190. 55 Me. 76. 
 Wood V. Watson, N. S. vi. 566. 53 Me. 300. ' 
 Wood V. Warner, N. S. vi. 571. 2 MeCarter 81. 
 Wood V. Willard, N. S. iv. 2.53. 37 Verm. 377. 
 Wood!). Willard, N. S. iv. 573. 36 Verm. 82. 
 Woodbeck v. Hevrens, N. S. iv. 121. 42 Barb. 
 
 66. 
 Woodbury v. Woodbury, N. S. vii. 318. 47 N. 
 
 H. 11. 
 Wooden v. Austin. N. S. vii. 189, 763. 51 Barb. 9. 
 Woodgate v. Welton, O. S. iii. 699. Lovell's 
 
 Dig., 1855, 23. 
 Woodman v. Dana, N. S. vi. 186. 52 Me. 9. 
 Woodman v. Joiner, N. S. iv. 808. 10 Jur. N. 
 
 S. 852. Exch. 
 Woodruff ti. Munroe, N. S. x. 403. 33 Md. 146. 
 Woodruff «. Peterson, N. S. viii. 190. 51 Barb. 
 
 252. . 
 Woods V. Sherman, N. S. xii. 791. 71 Penna. 
 
 St. 100. 
 Woods V. Stephens. N. S. x. 193. 46 Mo. 555. 
 Woods V. Sullivan, O. S. i. 378, 379, 382. 1 Swan 
 
 507. 
 Woods V. Wallace, 0. S. ii. 186. 22 Penna. St. 
 
 171. 
 Wood's Appeal, N. S. xiv. 118. 75 Penna.-St. 
 
 Wood's Exec'r v. Brown, N. S. vi. 121. 7 Tif- 
 fany (N. Y.) 337. 
 Woodward & Craig's Appeal, N. S. i. 60. 38 
 
 Penna St 32'^ 
 Woodward v. Grand Trunk E. W. Co., N. S. vi. 
 
 384. 46N. H. 524. 
 Woodward v. Gates et al., N. S. viii. 319. 38 
 
 Geo. 205. 
 Woodward v. Libby, N. S. x. 601. 58 Me. 42. 
 Woodward v. Lincoln, N. S. iv. 507. 9 Allen 
 ' 239. 
 Woodward v. Sherman, N. S. xii. 593. 52 N. H. 
 
 131. 
 Woodworth v. Insu. Co., N. S. viii. 63. 5 Wall. 
 
 87. 
 Woodworth v. Paige, 0. S. iv. 634. 5 Ohio St 
 
 70. 
 Woodworth v. Spring, N. S. 1. 765. 4 Allen 
 
 326. 
 Wooley V. Campbell, N. S. xiv. 128. 8 Vroom 
 
 163. 
 Woolfolk V. Woolfolk (Murray), N. S. xi. 329. 
 
 44 Geo. 133. 
 Wooster v. Page & Trustee, N. S. xiv. 394. 54 N. 
 
 H. 125. 
 . Wooster v. Sherwood, N. S. iii. 57. 11 E. P 
 
 Smith fN. Y.) 278. 
 Wooster v. Tarr, N. S. iv. 183. S Allen 270. 
 Worcester v. Clark, O. S. ii. 185. 2 Grant 334. 
 Works V. Farmers' M. F. Ins. Co., N. S. x. 68. 
 
 57 Me. 281. 
 Worrall's Appeal, 0. S. ii. 447. 23 Penna. St, 
 
 44. 
 Worth V. Edmonds N. S. viii. 308. 52 Barb. 40. 
 Wortliington v. Bearse, N. S. vi. 508. 12 Allen 
 
 382. 
 Worthington v. Gimson, N. S. iv. 311. 2 Ell. & 
 
 EU. 618. 
 
 Worthy v. Kinaman et al., K. S. xi. 399. 44 
 
 Ga. 297. 
 Wray v. Cox, O. S. iii. 56. , 24 Ala. 337. 
 Wright V. Delafleld, N. S. iii. 58. 11 E. P. Smith 
 
 (N.Y.)266. 
 Wright V. Dunham. N. S. v. 64. 13 Mich. 414. 
 Wright V. Holbrook, N. S. xii. 664. 52 N. H. 
 
 120. 
 Wright, In re, N. S. xiil. 193. 3 Bis. 359. 
 Wright V. Maiden E. E. Co., -N. S. ii. 379. 4 
 
 Allen 283. 
 Wright V. McKee, N. S. v. 318. 37 Verm. 161. 
 Wright V. Messenger, O. S. i. 697. 
 Wright V. Saunders, N. S. xiii. 257. 65 Barb. 
 
 214. 
 Wright V. Sill, N. S. iii. 54. 2 Black 544. 
 Wright V. Wright, N. S. xiv. 710. 31 Mich. 
 
 380. 
 Wuesthoff V. Seymour, N. S. xi. 57. 7 C. E. 
 
 Green 66. 
 Wyeth V. Eichardson, N. S. iii. 185. 10 Gray 
 
 240. 
 Wyman v. Fiske, N. S. i. 506. 3 Allen 238. 
 Wyman v. Symmes, N. S. v. 575. 10 Allen 153. 
 Wvman v. Prossier. N. S. i. 700. 36 Barb. 368. 
 Wyman. Adm'x v. Wyman, N. S. iii. 569. 12 E. 
 
 P. Smith (N. Y.) 253. 
 Wynkoop v. Seal, N. S. x. 404. 64 Penna. St. 
 
 Wynkoop v. Shardlow, N. S. v. 317, 377, 442. 
 
 44 Barb. 84. 
 Wynkoop v. Wynkoop, N. S. ii. 503. 42 Penna. 
 
 St. 293. 
 
 Yahhoolf. Elver and C. Creek Mining Co. v. 
 
 Irbv, N. S. ix. 583, 638. 40 Geo. 479. 
 Yates v. Lyon, N. S. xi, 330, 331. 61 Barb. 205. 
 Yates V. Milwaukee, N. S. x. 207. 10 Wall. 
 
 497. 
 Yates V. Olmsted, Adm'r, N. S. xii. 658. 63 
 
 Barb. 43. 462. 
 Yearsley v. Flanigan, 0. S. ii. 447. 22 Penna. 
 
 St. 489. 
 Yearsley's Estate, O. S. i. 636. 
 Yeaton v. Brown, N. S, xii. 530. 52 N, H. 14. 
 Yerger, Ex parte, N. S. ix. 57. 8 Wall. 85. 
 York Co. V. Central E. E. Co., N. S. v. 566. 3 
 
 Wall. 107. 
 York Co. Fire Ins. Co. v. Bowden, N. S. jl. 68. 
 
 57 Me. 286. 
 Young, Adm'x v. Brush, N. S. ii. 632. 38 Barb. 
 
 294. 
 Young V. Feruie, N. S. iv. 317. 10 Jur. N. S. 
 
 926. 
 Young V. Oilman. N. S. vi. 380. 46 N. H. 484. 
 Young V. McKee, N. S. v. 254. 13 Mich. 552. 
 Young V. Vough, N. S. xii. 467. 8 C. E. Green 
 
 325. 
 Young's Adm'x v. Wilson, N. S. iv. 188. 13 E. 
 
 P. Smith (N. Y.) 361. 
 
 Zaneji. Zane.N. S. viii. 444. 5 Kans. 134. 
 Zanesville, City of v. Eichards, O. S. iv. 767. 
 
 5 Ohio St. ,589. 
 Zantzinger i'. Eibble, N. S. xii. 52. 36 Md. 32. 
 Zimmerman v. Eote, N. S. xiv. 193. 75 Penna. 
 
 St. 188. 
 Zimmerman v. Streeper, N. S. xiv. 123. 75 
 
 Penna. St. 149. 
 Zinc Co. V. Boston Franklinite Co., N. S. vi. 
 
 568. 2 MeCarter 418. 
 Zoebisch v. Tarbell, N. S. v. 572. 10 Allen 38;"). 
 Zolkawsher's Adm'rs v. Bomford el al., O. S. i. 
 
 375. 14 How. 400. 
 ZoUar V. Janvrin, N. S. vii. 252. 47 N. H. 324, 
 
 THE END.