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Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022882181 
 
A -TREATISE 
 
 ON THE 
 
 CIVIL JURISDICTIOIsr 
 
 OF 
 
 JUSTICES OF THE PEACE 
 
 m THE 
 
 STATE OF NEW YORK. 
 
 BY ESEK ^WEN, 
 
 Cotjnsbloiv-at-Law. 
 
 B^IFTH EDITION. 
 
 EE-WBITTEN AOT) ADAPTED TO THE PBBSENT STATE OF THE LAW, NOT ONLY IN 
 
 THE STATE OF NEW YOKE, BUT ALSO IN THE OTHER, AND 
 
 ESPECIALLY THE ■WESTERN STATES. 
 
 I 
 
 BY LEWIS KmeSLEY, 
 
 OOTniSEI.OB-AT-LA-W. 
 
 NEW YOKK: 
 BANKS & BEOTHEES, LAW PUBLISHEES, 
 
 No. 144 NASSAU STREET. 
 
 ALBANY: 475 BROADWAY. 
 
 1870. 
 
S'/^mx 
 
 JEntered according to act of CongrcBS in the year one thousand eight hnndred and eerenty, 
 
 Bt BAMKS & BEOTHBES. 
 
 in the office of the Librarian of Congress, at Washington. 
 
 :■ h. 
 
 JOON TV. AUEBMAHt FbINTEB, 
 
 No. 47 Cedar St, N. Y. 
 
PREFACE, 
 
 It is witli great diffidence tliat this edition of Cowen's Teeatise is 
 submitted for the approbation and nse of that large number who 
 are concerned in the jurisdiction and practice of justices' courts 
 in this country. The scope of the original work was so coippre- 
 hensive, and that and the subsequent editions were received with . 
 such unexampled and merited confidence, that any one might well 
 shrink from the preparation of another and later edition to take 
 their places, which should embody merely the numerous changes in 
 the statutes, and the large body of the decisions reported since 
 1856, in Ifew York alone. Wlen to this, it is added, that its plan 
 further embraced the collation and "addition of the decisions of 
 other, and especially the western States, with all practical references 
 to their statutes ; a plan which has been carried out to the best 
 of the editor's ability, in the limited space at his disposal ; it will 
 be seen that an additional labor and responsibility were imposed, of 
 which, indeed, those only can have an adequate conception who 
 are aware of the hundreds of volumes of reports which embrace 
 those decisions, and know the varied, important, and practical char- 
 acter of the opinions published therein, and the great learning and 
 ability of the judges by whom they were delivered. 
 
 This task, however imperfectly it is performed, has been labori- 
 ously, carefully and honestly executed. And it is hoped that the 
 effort has not been in vain. The object was to add to the useful- 
 ness of the treatise, already so eminently useful even to the legal 
 profession, by making it give the law, as it now is, and that through- 
 out the whole countrv so that it should be a manual to guide 
 
17 • PEEFlCB. 
 
 justices and suitorSj and practitioners in their courts in every 
 State of the Union. 
 
 If "this object has been attained, even to a limited degree, and if 
 the editor has, by his effort, added anything to the knowledge of 
 the law, or aided in its intelligent enforcement, he will feel him- 
 self amply rewarded. 
 
 ^ LEWIS KINGSLET. 
 
 ITov&inleT 1st, 1870. 
 
PREFACE TO THE FOURTH EDITION. 
 
 Cowbn's Treatise upon the ciTil jurisdiction of justices of the 
 peace was published by its author, the late Mr. Justice Cowen, in 
 1821. Previous to that period no convenient manual for the use 
 of justices of the peace in this State had appeared. The work 
 supplied the want in an eminently useful manner. Two editions 
 were subsequently published; one in 1841, prepared under the 
 author's supervision, by his son, the late Sidney J. Cowen, Esq., 
 and another in 1844, edited by Oliver L. Baebotte, Esq. In each 
 of these editions the changes in the law, effected by statutory 
 enactments, and the decisions of the courts, were incorporated in 
 the text or referred to in notes, so as to bring the doctrines of the 
 law contained in it, down to the date of its publication. The 
 adoption of the constitution of 1846, and the changes in many of 
 the features of the common law effected by recent legislation, and 
 in the ancient systems of pleading and practice by the Code of Pro- 
 cedure, have rendered the treatise in many respects obsolete, and 
 required it to undergo extensive alterations to adapt it to the 
 existing laws. The subscriber, at the instance of the publishers,' 
 undertook the preparation of an edition with the intention of 
 modifying, where necessary, the text of the last edition, so. as to 
 render it conformable to the present state of the law. It, however, 
 soon became apparent that he would fail in accomplishing the pur- 
 pose aimed at, without making a material change in the order in 
 which a large number of the subjects were treated in the original 
 treatise, and very considerable omissions and additions. The plan 
 was therefore adopted of re-writing it, using with freedom the 
 
Vl ' PBEFAOE TO THE FOTTETH EDITION. 
 
 language of the author, but varying from an(i-modifying it whenever 
 it was deemed desirable. In doing this the text has been divided into 
 sections, for the double purpose of faciUtating the reference to par- 
 ticular parts or subjects, and of giving greater distinctness to the 
 propositions upon each title of the law treated of. The subscriber 
 has endeavored to render the text conformable to the most recent 
 decisions of our courts, and to flu-nish in the marginal notes, refer- 
 ences to authorities which sustain each position and doctrine, while 
 he has omitted many of the citations contained in the original 
 work, of early English authorities now rarely accessible in the 
 libraries of country practitioners, to which justices must generally 
 resort for reference, and supplied their places with citations from 
 our own reports, where their doctrine has been recognized. 
 
 WILLIAM TEACY. 
 Utioa, May 1st, 1854. 
 
CONTENTS 
 
 CHAPTER I. PAra. 
 Of a justice and the jurisdiction of justices' courts 1 
 
 CHAPTER II. 
 
 Of the nature of the causes of action of which a justice of the peace has juris- 
 diction '. 13 
 
 I. Of actions arising on contract for the recoyery of money only 13 
 
 (I.) Contracts of sale 39 
 
 (II.) Contracts of bailment 47 
 
 (in.) Contracts of debt 55 
 
 1. Special agreements .- 107 
 
 2. Goods sold 109 
 
 3. Work, labor and services 133 
 
 4. Money had and received to plaintifif 's use 151 
 
 5. Money paid for defendant 168 
 
 6. Money lent 173 
 
 7. Use and occupation of lands 175 
 
 8. Contracts arising in the course of an action 182 
 
 9. Bills of exchange and promissory notes 182 
 
 (1.) Obligations of drawer before acceptance 217 
 
 (2.) Obligations of acceptor of bUl and maker of a note 220 
 
 (3.) Obligations of drawers and endorsers after acceptance .... 232 
 
 (4.) Discharge of parties 244 
 
 (5.) When the receipt of a bUl or note is a payment 250 
 
 (6.) When a bUl or note is evidence of money received, &c., to 
 
 the holder's use 256 
 
 10. Account stated, or balance due on settlement. . , 357 
 
 XL Of actions for damages for an injuiy to the person, to real property and 
 
 for taking and detaining, or injuring personal property. 259 
 
 (I.) Injuries to the person , 360 
 
 (II.) Injuries to real property .- 273 
 
 (III.) Taking, detaining or injuring personal property 303 
 
 (IV.) Injuries to person or property committed under color of law 347 
 
 1. Where there is want of jurisdiction 347 
 
 2. Of proceedings void for irregularity 355 
 
 3. Where the officer exceeds his authority 350 
 
 in. Of actions for penalty 379 
 
V^lll CONTENTS. 
 
 Pags 
 
 rv. Of actions commenfced by attachmen ? -'. 
 
 V. Of actions upon bonds for the payment of money 383 
 
 VI. Of actions upon sm-ety bonds 384 
 
 VII. Of actions upon judgments 384 
 
 Vni. Of the confession of judgments without action 384 
 
 IX Of actions for fraud in sale or purchase of property 885 
 
 CHAPTER m. 
 Of the time of commencipg actions 391 
 
 CHAPTER IV. 
 Of the parties to a civil action 399 
 
 CHAPTER V. 
 Of the joinder of actions 411 
 
 CHAPTER Vl. 
 Of the election of actions : ' 415 
 
 CHAPTER Vn. 
 
 Of the commencement of actions 417 
 
 L Of process by summons ... '. 419 
 
 n. Of process by warrant 424 
 
 ni. Of process by attachment. 432 
 
 rv. Of process generally 449 
 
 CHAPTER Vra. 
 
 Of the service and return of the original process 456 
 
 I. Of the service and return of a summons 456 
 
 II. Of the service and return of a warrant 461 . 
 
 in. Of the service and return of an attachment 469 
 
 CHAPTER IX 
 Of the appearance of the parties 4gO 
 
 CHAPTER X 
 
 Of the pleading by the plaintiff 496 
 
 I. Upon contracts in writing _ 5Q5 
 
 II. Upon special contracts not in writing 5O9 
 
 III. Upon implied contracts g^g 
 
 IV. Upon injuries to the person or to property gjg 
 
 V. For a penalty g20 
 
 VI. For fraud in sales or exchanges ggj 
 
 VII. Upon a judgment 522 
 
 CHAPTER XL 
 Proceedings where the justice is a material witness gg^ 
 
CONTENTS. IX 
 
 CHAPTER XII. PioB. 
 
 Of pleading by the defendant 533 
 
 I. Pleas to the jurisdiction 635 
 
 II. Pleas in abatement 535 
 
 III. Answers containing a bar to the action 541 
 
 (I.) Infancy , 545 
 
 (II.) Lunacy, drunkenness. 551 
 
 (HI.) Coverture 553 
 
 (IV.) Alteration in the terms of a contract by consent 560 
 
 (V.) Contracts illegal or impossible to perform 562 
 
 (VI.) Higher security given- 563 
 
 (VII.) Erasures and alterations in contract 564 
 
 (VIII.) Matters in avoidance ; 567 
 
 1. Set-off ., 567 
 
 3. Former trial and judgment 584 
 
 8. Statute of limitations 593 
 
 4. Release 600 
 
 5. Award ^ 604 
 
 6. Accord and satisfaction 61@ 
 
 7. Tender 633 
 
 8. Justification of a trespass '. 643 
 
 9. That title to real estate is ia question 644 
 
 CHAPTER XIII. 
 Of adjournments' , 653 
 
 CHAPTER XIV. 
 
 Of trial and its incidents 670 
 
 I. Of the preparation for trial 670 
 
 II. Of compelling the attendance of witnesses by attachment 678 
 
 III. Of imposing a fine upon a witness for non-attendance or refusing to testify 676 
 
 IV. Of a commission to examine foreign witnesses 680 
 
 V. Of trial before a justice without a jury 698 
 
 VI. Of certain particulars applicable to a trial before a justice or jury 694 
 
 VII. Of trial by jury 700 
 
 VIII. Of proceedings against a defaulting juror 731 
 
 CHAPTER XV. 
 Of contempt of court. 734 
 
 CHAPTER XVI. 
 
 Of evidence 740 
 
 I. Its genera;! nature 740 
 
 II. The general rules of evidence ■. . 741 
 
 III. Of parol evidence to explain or contradict written testimony. 788 
 
 IV. Of books of account as evidence 795 
 
 V. Of the incompetency of witnesses. ... i. 801 
 
 VI. Of privileged communications 810 
 
 VII. Of the examination of a witness ' 814 
 
X CONTENTS. 
 
 Page. 
 
 VIII. Of the ways in Vhich a witness may be impeached > 826 
 
 IX. Of the consequences of admitting improper evidence 830 
 
 X. How the evidence will be considered on its being returned on appeal. . . . 833 
 XI. Of the justice's discretion in admitting or rejecting evidence 834 
 
 CHAPTER XVII. 
 
 Of damages 839 
 
 I. Damages in an action upon contract 841 
 
 II. Damages in an action for a wrong 858 
 
 III. Damages in reference to the time when an action is commenced 863 
 
 IV. Of assessing damages where there are several defendants 863 
 
 CHAPTER XVin. 
 Of judgment 865 
 
 CHAPTER XIX. 
 Of the costs : • 877 
 
 CHAPTER XX. 
 Of staying proceedings ^. , 883 
 
 CHAPTER XXL 
 
 Of the execution 884 
 
 I. Of the form of the execution 884 
 
 II. Of the renewal of an execution, and of issuing farther executions 888 
 
 III. Of the service and return of the execution 893 
 
 rV. Of the liability of a constable and his sureties 938 
 
 CHAPTER XXn. 
 Of appeals from justices' judgments 938 
 
 CHAPTER XXIIL 
 Of amendments 4 957 
 
TREATISE. 
 
 CHAPTER I. 
 
 OF A JUSTICE AND THE JUEISDICTION OF JUSTICES' COUET«. 
 
 § 1. JUSTICES of the peace are constitutional officers, and a branch 
 of the judiciary of the state. Their office is not a town, but a 
 county office,^ and their territorial jurisdiction extends throughout 
 the county in which they are elected. A justice of the peace must 
 reside in the town for which he is chosen, and cannot try a civil 
 action in any other town except in cases otherwise provided by law,' 
 but he may issue process at any place in the county to be executed any- 
 where therein. He can, accordingly, act as conservator of the peace, 
 and execute his criminal jurisdiction anywhere in the county, and send 
 his civil process to any place therein ; ^ he may, also, issue an attach- 
 ment, and make it returnable,* or take the confession of a judgment, 
 at any place within his county.^ If he be an innholder or tavern- 
 keeper, whether with or without a license, he has no jurisdiction 
 except to issue executions upon judgments rendered before him 
 before he became one.^ This disqualification, however, relates only 
 to his civil jurisdiction, and does not prevent him, although an inn- 
 keeper, from the exercise of criminal authority, or of the various 
 summary powers conferred by statute, such as the power to collect a 
 forfeiture incurred by disobedience of an order of a commissioner 
 of hio-hways.' He cannot entertain an action where he is within 
 the ninth degree of kin either by consanguinity or affinity to 
 either of the parties.^ The degrees of consanguinity are determined 
 
 '17N T 381. 25 Barb. 431. 39 id. » 3 R. S. 235, § 6. 3 id. (Banks' Sth ed.) 
 
 308. ' 437, §§ 3 and 4. 
 
 = 1 R S. 103, § 13. id. (Banks' 5tli ed.) ' 7 Barb. 337. 
 
 ggg e 10 » 3 Barb. Cb. 331. 21 Wend. 63. -^ 1 
 
 • '9 Wend. 319. Hill, 654. 2 E. S. 275, § 2. 3 id. (Banks' 
 
 « 10 Wend. 196. 5tli ed.) 465. 
 
 » 17 How. Pr. R. 109. 
 
2 OF A JUSTICE AND THE JUEISDIOTION OF JUST'ICES COUETS. 
 
 by commencing with the common ancestor of the persons between 
 whom they exist, and counting each generation downward to the 
 one farthest removed.^ The number of generations denotes the 
 degree. Thus, if both are grandchildren of a common ancestor, they 
 are cousins in the third degree ; if one is a grandchild and the other 
 a great-grandchild, they are cousins in tlie fonxth dfegree. Degrees 
 of affinity are determined by regarding a husband or wife of a blood 
 relative of the same deg^e as such relative. Kin by affinity ceases 
 on the death of the blood relative whose marriage occasioned it, 
 unless there be issue of the marriage, in which case the blood of the 
 issue keeps up the affinity.^ Thus, a father is no longer of kin 
 to -his daughter-in-law after the death of her husband, unless she 
 have children. If she have children, the blood relationship between 
 the children and their grandfather and their mother preserves the 
 aflBnity.® This relationship extends only to relatives by blood, a 
 husband or a wife being related by affinity to the other's blood rela- 
 tives ; but the blood relatives of the husband are not at all related to 
 the blood relatives of the wife, nor are hers related to those of the 
 husband, so that a justice whose brother was the husband of the 
 plaintiff's sister was held cotopetent to try the cause.^ In Indiana a 
 justice has no jurisdiction of a cause where his brother-in-law is a 
 party f aud such is the rule in "Wisconsin as to a son-in-law f but he 
 has where a brother-in-law is a party.' In California, consanguinity 
 and affinity are computed according to the common law, and by 
 section 87 of the act concerning courts of justice a judge is disqualified 
 when he is related to either party by consanguinity or affinity within 
 the third degree.' In Indiana the degree is the sixth, according to 
 the civil law,' and either party may make the objection." 
 
 [§ la.] There are a variety of acts required to be performed by a 
 justice, not of a judicial, but a ministerial character, like taking and 
 certifying the acknowledgment of a deed; and such acts a justice, 
 though related to the parties, has the right to perform." 
 
 § 2. This disqualification extends to cases where the justice is 
 related to one of several parties ; or to a stockholder in a corporation 
 which is a party to a suit before him.^' Where the parties to an 
 
 ' 4 Kent, 412. ' 4 Chand. 34. 
 " 7 Cowen, 478. 1 Denio, 25. 3 Barb. » 23 Cal. 592. 34 id. 73. 
 
 Ch. 331. " 18 Ind. 1. 
 
 = Id. " 10 Ind. 299. 
 
 nDeriio, 186. "2Seld..432. 
 
 » 3 Ind. 898. "17 Barb. 414. 38 id. 503. 
 • 16 Wis. 633. 
 
OF A JTJSTIOE AND THE JTIRISDICTION OF JUSTICES' COTJETS. 3 
 
 action are residents of the county, the justice cannot entertain it 
 unless some of them reside in his town or an adjoining town ; ^ under 
 this statute, it is held that two towns which only corner with each 
 other are adjoining ; ' but if the defendant has absconded leaving 
 property in his town, or if all the ^jlaintiffs or the defendant be non- 
 resident, then the justice of any town in which such absconding 
 defendant or his property, or in which such non-resident pl'aintiffff or 
 defendants may be, at the commencement of the suit, may. entertain 
 jurisdiction of an action ; ' an action in favor of a county may be 
 prosecuted before any justice before whom an individual could bring 
 it;* and the same rule applies to suits brought by towns, except 
 those for penalties given to them, in which case they may be brought 
 before any other justice residing in' the coxmty.^ This statute, how- 
 ever, applies to those cases only in which the penalty is given directly 
 to the town in its corporate capacity, and not to those in which the 
 action is brought by its ofBceirs, and it is interested in the amount 
 recovered only.' If a justice is a member of the legislature, he is not 
 obliged to take cognizance of an action, but may in his discretion^ 
 
 § 3. Under the ancient system of pleading, actions were divided 
 into several distinct forms, as debt, covenant, trespass on the case, 
 trespass, replevin, &c. Some of these were and some were not 
 within the jurisdiction of justices of the peace. These forms of 
 action have been superseded in the Code by the cvail action, which 
 furnishes the remed;^ for the enforcement of all private rights and 
 the redress of all private wrongs. In all cases, therefore, where one 
 has failed to keep a contract with another, or where he has wrong- 
 fully or negligently injured him, whether by a direct act or in con- 
 sequence of an act or omission of duty, a civil action can be main- 
 tained by the party injured. The jurisdiction of a justice is, how- 
 . ever, limited to the actions enumerated in the next section. 
 
 § 4. By section 53 of the Code of Procedure, as amended by vari- 
 ous statutes, justices' courts have cognizance of the following actions 
 and no other : 
 
 1. An action arising on contract for the recovery of money only, 
 if the sum claimed do not exceed two hundred dollars. 
 
 " 2 B. S. 326, § 8. 3 id. (Banks' 5th ed.) ' 1 B. S. 357, § 5. Id. (Banks' 5th ed.) 
 
 437, § 6. 837. 
 
 « 31 N. T. 389. " 6 Hill, 58. 
 
 = 3 B. S. 336, § 9. 3 id. (Banks' 5th ed.) ' 3 B. S. 326, § 7. 3 id. (Banks' 5th ed.) 
 
 527, § 7. 10 Wend. 358. 437, § 5. 
 
 * 1 R S. 384, § 5. Id. (Banks' 5th ed.) 
 901. 
 
4 OF A JUSTICE AND THE JTJEISDICTION OF JUSTICEi' COt:KTS. 
 
 2. An action for damages for injury to rights pertaining to the 
 person, or to personal or real property, if the damages claimed do 
 not exceed two hundred dollars. 
 
 3. An action for a penalty not exceeding two hundred dollars. 
 
 4. An action commenced by attachment of property as now pro- 
 vided by statute, if the debt or damages claimed do not' exceed two 
 hundred dollars. 
 
 5. An action upon a bond conditioned for the payment of money 
 not exceeding two hundred dollars, though the penalty exceed that 
 sum, the judgment to be given for the sum actually due. Where 
 the payments are to be made by installments, an action may be ' , 
 brought for each installment as it shall become due. 
 
 6. An action upon a surety bond taken by a justice, though the 
 penalty or amount claimed exceed two hundred dollars. 
 
 7. An action on a judgment rendered in a court of a- justice of the 
 peace, or of a justice's or other inferior coui't in a city where such 
 action is not prohibited by section Yl of the Code of Procedure. 
 
 ?. To take and enter judgment on the confession of a defendant 
 where the amount confessed shall not exceed five hundred dollars, in ' 
 the manner prescribed by article eight, title four, chapter two of part 
 three of the Kevised Statutes. 
 
 9. An -action for damages for fraud in the sale, purchase or 
 exchange of personal property, if the damages claimed do not 
 exceed two hundred dollars. 
 
 10. An action to recover the possession of personal property 
 claimed, the value of which, as stated in the aflSdavit of the plaintiff, 
 his agent or attorney, shall not exceed the sum of one hundred 
 dollars. 
 
 The plaintiff in such action, at the time of issuing the summons, 
 but not afterwards, may claim the immediate delivery of such pro- 
 perty, as hereinafter provided. 
 
 Before any process shall be issued in an action to recover the 
 possession of personal property, the plaintiff, his agent, or attorney, ' 
 shall make proof by aflSdavit, showing : 
 
 1. That the plaintiff is the owner, or entitled to immediate pos- 
 session of the property claimed, particularly describing the same. 
 
 2. That such property is wrongfully withheld or detained by the 
 defendant. 
 
 3. The cause of such detention or withholding thereof, according 
 to the best knowledge, information, and belief of the person making 
 tlie affidavit. 
 
OF A JUSTICE AND THE JtrEISDICTIOK OF JUSTICES' COUETB. 5 
 
 i. That said personal property lias not been taken for any tax, fine, 
 or assessment, pursuant to statute, or seized by virtue of an execu- 
 tion or attachment against the property of said plaintiff; or if so 
 seized, that it is exempt froiri such seizure by statute. 
 
 5. The actual value of said personal property. 
 , On receipt of such affidavit, and an undertaking in writing, execu- 
 ted by one .or more sufficient sureties, to be approved by the justice 
 of the peace before whom such action is commenced, to the effect 
 that they are bound in double the value of such property as stated in 
 said affidavit for the prosecution of said action, and for the return of 
 said property to the defendant, if return thereof be adjudged ; and 
 for the paymei^t to him of such sum as may for any cause be recovered 
 against said plaintiff, the justice shall endorse upon said affidavit a 
 direction to any constable of the county in which said justice shall 
 reside, requiring said constable to take the property described therein 
 from the defendant, and keep the same, to be disposed of according 
 to law ; and the said justice shall at the same time issue a summons 
 directed to the defendant, and requiring him to appear before said 
 justice at a time and place to be therein specified, and not more than 
 twelve days from the date thereof, to answer the complaint of said 
 plaintiff; and the said summons shall contain a notice to the defend- 
 ant that in case he shall fail to appear at the time and place therein 
 mentioned, the plaintiff will have judgment for the possession of the 
 property described in said affidavit, with the costs and disbursements 
 of said action. 
 
 The constable to whom said affidavit, endorsement, and summons 
 shall be delivered, shall forthwith take the property described in said 
 affidavit, if he can find the same, and shall keep the same in his cus- 
 tody. He shall thereupon, without delay, serve upon said defendant 
 a copy of such affidavit, notice, and summons, by delivering the same 
 to him personally, if he can be found in said county ; if not found, 
 to the agent of the defendant in whose possession said property shall 
 be foxmd ; if neither can be found, by leaving such copies at the last 
 or usual place of abode .of the defendant, with some person of suita- 
 ble age and discretion. And shall forthwith make a return of his 
 proceedings "thereon, and the manner of serving the same, to the juB- 
 tice who. issued the said summons. 
 
 The defendant may at any time after such service, and at least two 
 days before the return day of said summons, serve upon plaintiff, or 
 upon th.e constable, who made such service, a notice in writing that 
 he excepts to the sureties in said bond or undertaking ; and if he 
 
6 OF A JUSTICE AND THE JTUEISDICTIOIT OF JtJSTICEs' CO0ETS. 
 
 fail to do so, all objection thereto shall be waived. If such notice be 
 served, the sureties shall justify or the plaintiff give new sureties on 
 the return day of said summons ; who shall then appear and justify, 
 or said justice shall order said property delivered to defendant, and 
 shall also render judgment for defendant's costs and disbursements. 
 
 At any time before the return day of said summons, the said 
 defendant may, if he has not excepted to plaintiff's sureties, require 
 the return of said property p him, upon giving to the plaintiff, and 
 filing same with the justice, a written undertaking, with one or more 
 sureties, who shall justify before said justice on the retTirn day of 
 said summons, to the effect that they are bound in double the value 
 of said property, as stated in plaintiff's affidavit, for the delivery 
 thereof to said plaintiff, if such delivery be adjudged, and for the 
 payment to him of such sum as may for any cause be recovered 
 against said defendant ; and if such return be not required before the 
 return day of said summons, the property shall be delivered to said 
 plaintiff. 
 
 The qualification of sureties, ^nd their justification under this act, 
 shall be the same as provided in sections 194 and 195 of the Code, in 
 respect to bail or arrest in the supreme court. 
 
 Sections 214, 215 and 216 of the Code shall apply to proceedings 
 and actions brought under this act, substituting the word constable 
 for the word sheriff wherever it occurs in either of said sections. 
 
 The actions so commenced shall be tried in all respects as other 
 actions are tried in justices' courts. The judgment for the plaintiff 
 may be for the possession, or for the recovery of the possession, or 
 the valne thereof, in case a delivery cannot be had, and of damages 
 for the detention. If the property have been delivered to the plain- 
 tiff, and the defendant claim a return thereof, judgment for the 
 defendant may be for a return of the property, or the value thereof 
 in case a return cannot be had, and damages for taking and with- 
 holding the same. An execution shall be issued thereon, and if the 
 judgment be for the delivery of the possession of personal property, 
 it shall require the officer to deliver the possession of the same, par- 
 ticularly describing it, to the party entitled thereto, and may at the 
 same time require the officer to satisfy any costs or damages reco- 
 vered by the same judgment out of the personal property of the 
 party against whom it was rendered, to be specified therein, if a 
 delivery thereof cannot be had. The execution shall be returnable 
 within sixty days, after its receipt by the officer, to the justice who 
 issued the same. 
 
OF A jrSTICE AHD THE JTJEISDIOTIOlf OF JUSTICES' COUETS. 7 
 
 In all actions for the recovery of tie possession of personal pro- 
 perty, as herein provided,, if the property shall not have been deli- 
 vered to plaintiff, or the defendant by answer shall claim a return 
 thereof, the justice or jury shall assess the value thereof, and the 
 injury sustained by the prevailing party by reason of the taking or 
 detention thereof, and the justice shall render judgment accordingly, 
 with costs and disbursements. 
 
 If it shall appear by the return of a constable that he. has taken 
 the property described in the plaintiff's affidavit, and that defendant 
 carutiot be found, and has no last place of abode in said county, or that 
 no agent of defendant could be found on whom service could be 
 made, the justice may proceed with the cause in the same manner as 
 though there had been a personal service. 
 
 For the endorsement on said affidavit, the justice shall receive 
 an additional fee of twenty-five cents, which shall be included in the 
 costs of the suit. 
 
 (A decision of the Oneida county court, holds that in the cases 
 included in this subdivision, the defendant has the right to demand a 
 trial by a jury of twelve men, and that, if he does so, the case must 
 be dismissed, because a justice cannot summons such a jury.'') 
 
 11. Any innkeeper, boarding house keeper, mechanic, workman or 
 bailee, who shall have a lien upon any chattel property, may com- 
 mence an action in any court having jurisdiction of the amount of 
 such lien, for an enforcement and foreclosure thereof. 
 
 Such action shall proceed in all respects, as civil actions, in the 
 court in which the same is commenced. 
 
 'fhe judgment in such action may be the same as in other civil 
 actions in the same court, and in addition ^thereto, if in favor of the 
 plaintiff, may fix the amount of such lien, and adjudge the foreclo- 
 sure of the same and the sale of the chattel property affected 
 thereby, and specify the officer who shall make such sale, and in 
 such ease shall direct the disposition of the proceeds thereof, to the 
 payment of the amount of such lien with the costs of the action, and 
 the costs and expenses of such sale, and shall provide for the safe 
 keeping of any ^rplus arising thereon, and the payment thereof to 
 the owner of such chattel property or his assigns or representatives. 
 
 There shall be the same right of appeal from the judgment in 
 such action, as in other civil actions, in the court in which the same 
 shaU be commenced. 
 
 Nothing in this act contained shall be held or construed, to affect 
 ' 37 How. P. R. 140, 
 
8 OF A JUSTICE AJTD THE JUEISDIOTION OF JUSTICES COUIITS. 
 
 or impair the rigtt of any person to enforce or foreclose a lien upon 
 chattel property in any other manner than as herein provided. 
 {Zaws of 1869, wl. 2, oh. Y38,i?jp. 1785-6.) 
 
 § 5. By section 64 of the Code it is provided that no justice shall 
 have cognizance of a civil action : 
 
 1. In which the people of this state are a party, excepting for 
 penalties not exceeding one hundred dollars. 
 
 2. Nor where the title to real property shall come in question, as 
 provided by sections 55 to 62 inclusive of the Code of Procedure.. 
 
 3. Nor of a civil action for an assault, battery, false imprisonment, 
 libel, slander, malicious prosecution, criminal conversation or 
 seduction. 
 
 4. Nor of a matter of account where the sum total of the accounts 
 of both parties, proved to the satisfaction of the justice, shall exceed 
 four hundred dollars. 
 
 5. Nor of an action against an executor or administrator. 
 
 § 6. Under the first class of actions in section 53 of the Code, are 
 included judgments,^ all claims for money owing, whether arising 
 upon written instruments or upon any promises or obligations not in 
 writing, or any contracts express or implied, as for the price of goods 
 sold, or the value of service^ performed at another's request, whether 
 the price was agi*eed upon or not. Eor in the absence of proof to the 
 contrary, the law assumes that whenever it is the duty of a party to 
 pay another for any service or thing, there exista a contract that he 
 will. The language of the statute is "on contract for the recovery 
 of money only.'" This however includes all claims for failure of 
 express contracts to pay one a certain sum in property not money, or 
 a certain quantity of any article, as a note for ten barrels of flour, or 
 ten dollars in potatoes. In these cases if the debtor does not pay in 
 the articles agreed upon, the contract becomes one to pay in money. 
 If the claim exceed two hundred dollars, a justice cannot entertain 
 jurisdiction of it.' If however the plaintiff only demand/ judgment 
 for two hundred dollars, he may act although there be actually due 
 a greater sum upon the contract.' If he claims damages, in his com- 
 plaint, for "two hundred dollars and over" the words- "or over" 
 are void for uncertainty, and, judgment being taken for not exceed- 
 ing the jurisdiction, it is good.* 
 
 § 7. Under the second class, the law assumes to furnish an indem- 
 
 '23 Barb. 818. 2 Sand., 402. See » 9 John. 366. 6 Hill, 631. Also 1 
 sub. 7. Wash. T. 86. 
 
 ' 14 Barb. 250. • 5 Barb. 573. 
 
OP A JUSTICE AWD THE JTJEISDICTIOK OF JtrSTIOES' COUETS. 9 
 
 nity for any injuries -which one may sustain, either directly or conse- 
 quentially, from the wrong or negligence of another. The limitation 
 contained in section 5, supra, excludes many cases arising in this class 
 from the jurisdiction of a justice. Among those that are cognizable 
 are actions for injuries to one's person, or the person of his wife, 
 child or servant, from the negligence of another. A direct injury 
 thus inflicted without intentional violence is not an assault and battery. 
 Actions for injuries to either real or personal property are within this 
 class, excepting where the title to real property shall come in ques- 
 tion, in which case, as we have just seen, the justice has no jurisdiction. 
 Although the Code, section 123, provides that actions for injuries to 
 real property must be brought within the county in which the pro- 
 perty is situated, this rule does not apply to justices' courts. ^ 
 
 § 8. Actions under the third subdivision must be brought in the 
 county where the cause arose.^ This class of actions is brought for 
 violation of particular statutes, as for keeping an unlicensed tavern, 
 winning at play, setting up a raifle or lottery, profane swearing, 
 penalties imposed by municipal corporations for violation of their 
 by-laws and ordinances, and the like.' It seems that if an officer who 
 is liable to a penalty, has removed to another county, the action may 
 be brought in that county in which he resides.* 
 
 § 9. The cases provided for in the fourth and fifth subdivisions are 
 of a similar nature to those in the first subdivision. The only actions 
 commenced by attachment are such as arise upon contract. While 
 the jurisdiction, as given in clause five, seems to be general, it is 
 doubtful if it allows actions on bonds given by executors or admin- 
 istrators.* 
 
 § 10. The sixth subdivision includes actions upon all the surety bonds 
 which a justice is authorized to take, notwithstanding the amount 
 that may be due upon them, or that is claimed in the complaint. 
 
 § 11. The actions upon justices' judgments, which by the seventh 
 subdivision are permitted to be brought, are by the Ylst section of the 
 Code forbidden to be brought in the same county within five years 
 after their rendition, except in ease of the death, resignation, incapa- 
 , city to act, or removal from the county of the justice before whom 
 they were recovered, the death of some of the parties, the loss of the 
 
 '2Denio, 639. 33 N. Y. 470. 20 Barb. "SHm.SOG. 
 351. < 13 Wend. 265. 
 
 ' 2 R. 8. 482, §§8, 9. These sections are » 1 E. D. Smith, 404. 10 Abbott, 431 
 not superseded by § 124 of the Code, which 
 only relates to actions in the supreme court. 
 2 
 
10 OF A JUSTICE AND THE JTJEISDICTION OF JUSTICES COUETS. 
 
 docket or record, or when the process was not served personally on 
 the defendant or some of the defendants. The justices' jurisdiction 
 of cases in this class is unlimited as to amount.^ 
 
 § 12. The power to take the confession of judgments given in sub- 
 division eight, is subject, under the Eevised, Statutes,^ to several limi- 
 tations, which will be given in a. subsequent part of this work.' 
 
 § 13. The niuth subdivision includes all cases where one is injured 
 by the fraud or deceit of another in the purchase or sale of personal 
 property, and whether the fraud consists in false representations or a 
 willful concealment of a known defect in the article sold, to the pre- 
 judice of the other party. 
 
 § 14. The limitations of a justices' jurisdiction, as above given,* 
 require but little notice here. Qases where the title to real estate 
 comes in question, will be more fully considered in a subsequent 
 portion of this work. An action for injury to personal property is 
 prohibited by this provision, if it appear that the damage was done 
 in connection with an assault upon the person.' It seems, ho,wever, 
 that an action may be maintained before a justice for an assault and 
 battery upon a servant,^ the injury being a consequential one to the 
 plaintiff, and the judgment not being for the servant's sufferings. 
 
 § 15. The limitation of the jurisdiction where the sum total of the 
 accounts of both parties proved to the satisfaction of the justice, 
 exceeds four hundred dollars, is held to apply in cases where the 
 demands existing between the parties are open and unliquidated. 
 Where there has been a settlement between the parties and a balance 
 has been found, that balance is the claim, and unless with the subse-^ 
 quent accounts it exceeds four hundred dollars, an action for it may 
 be maintained before a justice of the peace.' So, if payments have 
 been made, the amount left after deducting them is the total of the 
 accounts of the parties.' It is otherwise in the case of a set-off.' 
 The amounts of the respective accounts may be arrived at by evi- 
 dence or the admissions of the parties." And when so ascertained, 
 if they exceed four hundred dollars, the justice must enter a judg- 
 ment of discontinuance, with costs." His decision on the question 
 
 » 23 Barb. 313. « 10 Wend. 555 and 557, note. 4 Denio, 
 " 3 R S. 245, § 114. 3 id. (Banks' 5t]i 370. 1 E. D. SmitU, 538. 15 How. Pr. R. 
 
 ed.) 443, § 105. 280. 
 
 = Infra, e,g 1543, &c. " 10 Wend. 555, 557, note. 4 Denio, 370. 
 
 * Ante, §5. • , "5 Duer, 691. 
 
 "4 06010,453. »3R 8.235, §54. 3 id. (Banks' 5th ed.) 
 
 « 1 Pennington, 111. 435, § 53. 
 ' 3 Cowen, 413. 
 
OF A JUSTICE AND THE J0EISDICTION OT JUSTICES' COUBTS. 11 
 
 whether or not the amounts exceed four hundred dollars cannot be 
 given till evidence has been introduced ; and till the decision is naade 
 thereon he has jurisdiction.' 
 
 § 16. A justice of the peace has power to pu&ish, as for a criminal 
 contempt, persons guilty of the following acts : 
 
 1. Disorderly, contemptuous or insolent, behavior towards him 
 while engaged in the trial of a cause or in the rendering of any 
 judgment, or in any judicial proceedings, which shall tend to 
 mterrupt such proceedings or to impair the respect due to his 
 authority. 
 
 2. Any breach of the peace, noise or other disturbance tending to 
 interrupt the official proceedings of a justice. 
 
 3. Resistance willfully offered by any person, in the presence of a 
 justice, to the execution of any lawful order or process made or 
 issued by him.^ 
 
 These powers allow the justice to repress and punish all disorderly 
 behavior from parties, counsel or bystanders;* the thii'd subdivision 
 does not extend to a mere omission to obey an order or process, but 
 only to an affirmative act interfering with or obstructing its execu- 
 tion.* This subject is further considered in a subsequent portion, of 
 this treatise.^ 
 
 § 17. The total want of jurisdiction renders any proceeding before 
 a justice void, and in such case he is accountable for any injuries 
 arising from his acts. The rille is, that where he has no jurisdiction, 
 his acts are void ; but where he has jurisdiction and errs in its exer- 
 cise, his acts are voidaMe, and can be taken advantage of only by the 
 review of an appellate court. In the former case he is liable for his 
 acts ; in the latter he is not. 
 
 § 18. There is a class of cases where the justice has jurisdiction of 
 the. subject matter of the action, or of the class of persons in relation 
 to whom he acts, but has no jurisdiction to act in the particular case 
 before him, in which he is not held answerable for what he has done 
 in good faith. Thus, where a justice was authorized to issue a war- 
 rant without oath against all persons except freeholders, and he 
 issued one against a freeholder ; haying acted in good faith, he was 
 held not liable 'in an action for false imprisonment, for the reason 
 that he had general jurisdiction of the process in certain cases with 
 
 • 52 Barb. 147. ■* 3 Parker, 506. 9 How. Pr. E. 419 
 
 " 3 R. B. 273, § 374. 3 id. (Banks' 5th 14 id. 345. 
 ed.) 460, § 199. " Sections 1884, &c. 
 
 ' 8 HiU, 338. 
 
12 OF A JUSTICE AND THE JUEISDICTION OF JUSTICES OOUETS. 
 
 out oath; and for an error in awarding it against the freeholder 
 without knowing him to be one, he was not answerable.^ 
 
 § 19. "Where a justice has not jurisdiction of the subject matter of 
 the action, no consent' or arrangement of parties can confer it upon 
 him. He' cannot try an action where the amount claimed exceeds 
 his jurisdiction, nor for any of the classes of cases which are expressly 
 excluded from his jurisdiction, notwithstanding the parties consent 
 to his doing so, and in such cases any judgment rendered by him 
 would be void.' 
 
 § 20. Consent, however, will confer jurisdiction over the person. 
 Thus, a party over whom the justice would have no jurisdiction, may, 
 by a voluntary appe"arance, confer it upon him ; ^ and one who has 
 been served with void or irregular process will waive the irregularity 
 and confer jurisdiction on the justice, by appearing and pleading to 
 the merits of the action.* So any irregularities in the issuing or 
 service of process, and all defects either in form or substance, are 
 waived and cured by the defendant appearing and neglecting to take 
 advantage of them at the first opportunity.' Thus if process be 
 void because of some defect in the manner in which it is issued, yet 
 if the defendant appear at the return day, and without interposing 
 the objection join issue upon the merits, the justice's jurisdiction over 
 his person will be complete.^ So if he plead or take any step 
 which assumes that the process is good, whether he know of the 
 irregularity or not, he cannot afterwards object to the process itself.' 
 But the mere act of appearing at the return, for the purpose of rais- 
 ing an objection to it, and upon its being overruled answering to th'e 
 complaint is not a waiver.' 
 
 § 21. The effect of a want of jurisdiction upon the officer who 
 executes process issued to enforce the judgment, will be considered 
 ' hereafter. 
 
 » 6 Wend. 597. * 3 Comstock, 133. 1 Seld. 431 36 N. 
 
 ' 8 John. 409. 6 Wend. 465. 3 Com- Y. 418. 53 Barb. 158. 
 stock, 553. 23 Barb. 833. 3 Ohio JST. S. '14 John. 481. 1 Seld. 531. 35 Barb. 49. 
 '333. 1 Wis. 597. 1 Minn. 365. 18Ind.l. ' 3 Hill, 657. 
 10 Iowa-, 880. 1 Nevada, 83. 1 Wash. ' 5 Cowen, 15. 6 HiU, 343. 
 T-57. »14 John. 481. 17 Wend. 85. 17 
 
 ' 1 Sand. 19. 3 E. D. Smith, 88. 2 Barb. 424. 
 Ohio N. S. 338. 1 Wis. 597. 18 Ind. 1. 
 
CHAPTER II. 
 
 OF THE NATURE OF THE CAUSES OF ACTION OF WHICH A JUSTICE 
 OP THE PEACE HAS JURISDICTION. 
 
 § 22. I. Of actions aeising on contract for the eecoteet of 
 MONET ONLY. In section 6 a general view of the class of actions 
 arising on contract is given. A contract is an agreement " between 
 competent parties, upon a legal consideration to do, or abstain from 
 doing, some act," ^ or that another shall or shall not do it, or that a 
 particular matter is or is not so. Thus onej may contract that another 
 shall pay his own debt, that another shall not institute a specified 
 proceeding, or the like, or that certain lands are free from encum- 
 brance, or that he is seized of them in fee. 
 
 § 23. Contracts are divided into three classes ; contracts of record, 
 such as judgments and recognizances ; specialties or sealed contracts, 
 as deeds, covenants and bonds ; and sim/ple contracts, in which class 
 are included agreements not under seal, whether iri writing or mere 
 verbal promises. Simple contracts are sometimes called jparol con- 
 tracts ov parol agreements, and this notwithstanding they are in 
 writing.^ 
 
 § 24. Every contract is founded on the mutual agreement, express 
 or implied, of the parties to it.^ 
 
 In an express contract the minds of the parties have met and they 
 have agreed upon its terms and conditions, and are held by them. Such 
 a contract may be made by the parties or their agents when together, 
 or by offers made, and accepted by letters or telegi-aphic despatches.^ 
 Some instances are given in the note. In case of letters, the agree- 
 ment is complete when one proposes by mail to make a contract with 
 another residing at a distance, and the latter deposits his acceptance 
 ■ in the post office, addressed to and to be transmitted to the former, 
 unless either letter shall require something more before the contract 
 
 • Story on Con. §1. 2 Bl. Com. 446. 4 « 18 111. 483. 3 Cal. 147. 35 id. 291. 
 Wheat 107. 5 Iowa, 836. 7 Wis. 413. 5 Minn. 382. 
 
 « Stoiy on Con. § 2. 13 Ohio N. S. 84. 17 Ind. 284. 
 
 • See 35 Cal. 01. 25 Iowa, 453. 
 
14: OF CONTEACTB. 
 
 is binding.^ The rule is the same in regard to telegrams, in which 
 case an agreement to communicate by telegram is no warranty by 
 either party that the telegrams shall be received :' although the party 
 making the offer is dead when the letter reaches its destination, the 
 contract is perfect, provided he was alive when it was mailed ; other- 
 wise if he was then dead.* In all such cases, the acceptance must 
 be sent in a reasonable time,* and the postage paid.^ What is the 
 effect of the omission of the stamp required on agreements by the 
 United States revenue law, is not yet judicially determined. 
 
 Implied contracts are such as have not been distinctly settled by 
 the parties, and where the contract is a legal inference from the acts 
 t»f the parties or the obligations imposed upon them by some law,^ in 
 which cases " the parties are supposed to have made those stipula- 
 tions, which, as honest, fair and just men, they ought to have 
 made.'" Instances of these are where a husband drives his wife from 
 his house and refuses to support her ; * where one avails himself of 
 tlie services of another ; ' or buys an article without agreeing for its 
 price ; ^ or wrongfully takes the property of another ; ^' or uses it ; ^ or 
 accepts a gift conditioned upon the payment of an annuity,^' or a 
 deed which requires him to discharge an encumbrance on the land 
 conveyed." In these and similar cases as also in cases of guaranty or 
 suretyship,^^ the law assumes an agreement to pay, and an action may 
 be brought accordingly ."^^ When a person procures articles for the 
 proper burial of a dead neighbor, the facts being known to the one 
 from whom they are purchased, no promise is implied that the one 
 so procuring them will pay for them." 
 
 § 25. A sufficient and lawful consideration is absolutely necessary 
 to the validity of a contract, and an agreement to pay or to do any- 
 thing without any compensation is void in law.'* Thus, if I promise 
 to pay John fifty dollars, this does not bind me although it may be 
 in writing, unless it is for something which John either has done at 
 my request or has promised to do for rae. This rule however does 
 
 ' 6 "Wend. 103. 1 Kei-n. 441. 19 N'^Y. "3 John. 301. 
 111. 1 Transcript, 348. 30 Barb. 43. 48 "> 3 Phil. Evi. 113, 2 Saund. 133, n. 3. 
 id. 614. 52 id. 159. 41111.394. " 5 Denio, 370. 7 How. Pr. K. 278. 
 
 = 36 N. Y. 307. 37 id., 457. 35 Barb. "'' 38 N. Y. 379. 
 463. 1 Transcript, 348. 6 id. 138. " 34 N. Y. 130. 30 Barb. 392. 
 
 ' 6 "Wend. 103. " 24 N. Y. 178. 39 Barb. 534. 
 
 '30 Barb. 42. 35 id. 373. "33111.505. 
 
 • 34 How. Pr. R.' 111. "> See 30 Barb. 338. 1 Nevada, 20. 
 
 " 29 Barb. 59. 30 id. 288. " 23 Ind. 190. 
 
 ' 12 Wheat. 841 " Story on Con. § 437. 19 Barb. 291. 
 
 " 41 Barb. 658. 3 Minn. 136. 
 
THE CONSIDEEATIOJT. 15 
 
 not affect a gift, or an" assignment of a thing in action, either of 
 which do not require any consideration, and are perfect on delivery .^ 
 And where one is required, any consideration agreed on by the 
 parties, however trifling, is suJBBcient to prevent the agreement being 
 void.' But a distinction is here to be taken between a valuable con- 
 sideration, other than money, and a money consideration. In the former 
 case, the slightest consideration supports the most onerous obligation ; 
 in the latter the liability is limited to the actual amount of the conside- 
 ration.^ A moral obligation, where there has been a prior legal 
 obligation to pay a debt, but which has been barred by operation of 
 law or otherwise, wiU be sufficient*— as a p'omise to pay a debt which 
 has been barred by an insolvent's discharge.' But the moral obliga- 
 tion alone is not sufBcient.^ There must have been a prior legal or 
 equitable claim.' Under this rule, where a married woman had 
 bought goods during coverture, concealing her marriage, and after 
 thg death of her husband, promised to pay the notes she had given 
 for them (and which under the law as it then stood, she was not 
 legally bound to do), it was held that this promise was binding, and 
 an action upon it was sustained.^ A promise to pay'my servant, 
 whose whole time and services I have hired, an increased amount, as 
 a stimulus to him, is a^ratuitous promise which is not binding.' 
 
 § 26. The consideration must be either a benefit to the party 
 promising, or some trouble or prejudice to the party to whota the 
 promise is made." Thus a promise in consideration of the forbear- 
 ance of a suit for a certain time is good.-" But such a promise as just 
 spoken of is not valid where there was originally no cause of action.^ 
 So a payment in advance, or the substitution of a new and valid 
 agreement, extending the time of payment, is a good consideration." 
 An agreement by a son that his father shall deduct a certain part 
 from his portion is no sufficient consideration." And where an attorney 
 received an order for collection for B, and B directed him to retain 
 from the moneys collected a debt due to him and another, and then 
 
 • 27 Barb. 178. Infra, § 586. ' 1 Wash. T. 6.5. 
 
 = Story on Con. §431. 36 N. Y. 473. "Stoiyon Con. § 481. 6 Wencl. 648. 
 
 46 Barb. 350. 11 Ind. 70. 14 id. 552. 30 Barb. 840. 12 Cal. 311. 32 id. 86. 11 
 
 ' 46 Barb. 350. See 17 Ind. 29. Iowa, 814. 13 Minn. 417. 
 
 ' StoTy on Con. § 466. 1 Wis. 181. " Story on Con. § 435. 4 John. 237. 2C 
 
 ' 1 Cowen, 349. Wend. 201. 46 Barb. 218. 
 
 ' 5 Hill, 306. 26 IS". Y. 604, 608, and •'' 2 Hall, 266. 
 refs. 4 Greene, 106. 15 Ind. 59. " 6 Ind. 128. 25 111.457. 36 id. 283 
 
 ' Id. 18 Barb. 545. 38 id. 209. Infra, § 118. 
 
 s 3(3 jf. y. 604. " 3 Cowen, 139. 
 
■16 OF CONTEACTS. 
 
 assigned the demand to T, to whom the attorney promised to pay 
 the whole demand when collected, it was held that the promise of 
 the attorney was without consideration as to the sum which B agreed 
 he should retain, "and that he was bound to pay no more than the 
 balance after deducting that sum.^ Compromises of doubtful claims 
 are also a sufficient consideration for promises founded upon them,^ 
 as also are agreements to withdraw opposition to the probate of a 
 will.'' 
 
 § 27. A promise in consideration of something already done will 
 not be binding, unless such past consideration was performed at the 
 request of the party promising,* or was in its nature of such a charae- 
 ' ter as to impose so strong a moral obligation to make the request 
 that one can be implied.^ The subsequent promise, in such cases, 
 must be express ; an implied one is not suflScient.^ And it has been 
 held that if you get judgment and collect it against me for money 
 which I have paid you, and you afterwards promise to repay it, j^our 
 promise is binding, on the ground of a prior moral obligation.'' 
 
 § 28. Anciently the seal upon a contract under seal furnished 
 absolute evidence of a consideration to the contract, whether one did 
 or did not in fact exist. Since the Eevised Statutes the rule is 
 changed, and now, in actions brought upon sgaled instruments, or in 
 case of set-offs founded upon them (not in any other cases), the seal 
 is only presumptive evidence of a sufficient consideration, which, if 
 the defense be pleaded, may be rebutted in the same manner and to 
 -the same extent as if the instrument were not sealed.' It is, how- 
 ever, held that if a consideration is expressed in the instrument, the 
 party is estopped by the seal from contradicting the fact or showing 
 that none in fact passed, for the purpose of defeating the deed.^ 
 
 § 29. Most considerations are reducible to the three following hea-ds : 
 1. Where the parties mutually agree to give something, comprehend- 
 ing sales, exchanges, loans and the like ; 2. Where the parties .are 
 mutually to do or forbear something ; 3. Where the parties mutually 
 agree, the one to perform any work or business, and the other to give 
 him something for it. This may be either specifically agreed upon, 
 or left to the determination of law to set the value to it. As an 
 
 ' 5 Cowen, 876. ' 14 John. 468. 
 
 " 44 Barb. 641. • 3 R. S. 406, § 77. 3 id. (Banks' 5th 
 
 = 35 Barb. 283. ed.) 691, § 109. 21 Wend. 636. 6Denio, 
 
 * 14 John. 378. 13 Iowa, 513. 308. 
 
 " 34 Barb. 533. ° 10 Wend. 460. 
 
 ' 30 Barb. 151. 
 
OF PEESONS INCAPABLE OF CONTEACTING. 17 
 
 agreement to work by tlie month at a fixed price, or withoSt a price 
 being fixed upon. In the latter case the law implies a contract by 
 the laborer to work for such sum as the labor is reasonably worth, 
 and by the employer to pay it.^ Mutual promises are always a suffi- 
 cient consideration for an agreement.^ But the agreement must then 
 be entered into by all the parties.^ 
 
 § 30. All promises are to be interpreted in cases of doubt, or disa- 
 greement in that sense in which the parties, and especially, the 
 promisor know that the promisee, understood them.* It sometimes 
 happens that a written instrument is not executed by all whose names, 
 as contractors, are mentioned in it. Whether, in such cases, those 
 who do sign it are bound, depends upon the circumstances, and these 
 may be proved by parol.' Prima facie, they are bound.^ 
 
 § 31. Express contracts may be made by all persons not incompe- 
 tent by personal disability or by considerations of public policy.' As 
 they require the mutual understanding and consent of the parties, 
 they cannot be made where either of them is mentally incapable of 
 yielding an intelligent assent to their terms. Thus idiots, lunatics, 
 persons of unsound mind, and drunkards in a state of intoxication 
 rendering them mentally impotent,^ are incapable of entering into an 
 express contract, by reasgn of personal disability ; and alien enemies, 
 infants, and with certain exceptions married women, by considera- 
 tions of public policy. 
 
 § 32. An idiot, or natural fool, is one who has had no understand- 
 ing from his nativity. A lunaiic is one who has had understanding, 
 but who, by disease, grief or other accident, has lost the use of his 
 reason, and who may or may not have lucid intervals. A person of 
 unsound mind is one who from old age, sickness or weakness, is so 
 weak of mind as to be incapaible of governing himself and managing 
 his affairs.' The express contracts of idiots, and persons of unsound 
 mind are void. Those of a lunatic before he is declared to be such, 
 by proper proceedings on a commission, are voidable only, and that 
 by the limatic alone, or those in privity with him.^" Those made 
 afterwards are void." "Where no commission has been issued, or it 
 
 ' 20 Barb. 387. ° 3 Paige, 30. 4 Seld. 307. Story on 
 = 7 OUo N. 8. 370. 7 Iowa, 333. 39 Con. § 35. 
 
 I1L145. 6Ind.353. 13 Cal. 330. ° 3 John. Ch. 333. 7 Paige, 336. 35 N. 
 
 ' 31 Cal. 60. Infra, § 30. Y. 9. 46 Barb. 330. 36 lU. 109., 40 id. 
 
 '34N. T. 40. See Infra, § 1430. 188. 43 id. 373. 34Ind. 331. 
 
 = 31 N. Y. 181. '° 3 Cowen, 553. 5 Seld. 45. 13 Barb. 
 
 ' '3 Hill. 584. See 31 Cal, 60. 337. 19 Ind. 30. 34 i 1.331. 18111.282. 
 
 ' Story on Con. § 34. " 12 Barb. 237. , 
 3 
 
18 OF CONTEACTS. 
 
 is sought to avoid a, contract entered into before the day when the 
 insanity commenced, as found by the. commission, the proof lies with 
 him who alleges it ;^ but after a general derangement is shown, it is 
 incumbent on the one who insists that the act was valid to show 
 sanity at the very time when it was performed, and it is then valid.' 
 The same presumptions exist in regard to soundness of mind. ^ Those 
 who allege unsoimdness must prove it.* In regard to insanity, erro- 
 neous, foolish, and even absurd opinions on certain subjects, do not 
 establish it, when the person entertaining them still continues in the 
 possession of his faculties, discreetly conducting his own business, 
 and that of others ; * nor are an irritable temper and excitable dispo- 
 sition, of themselves, evidence of it.^ And perverse opinions and 
 unreasonable prejudices are not to be confounded with mental aliena- 
 tion.* But there may be such a persistent belief in supposed facts 
 which have no real existence, against all reason and probability, that . 
 the person may be under such a delusion as to amount, so far as they 
 are concerned, to insanity.' Weakness of understanding of a .con- 
 tracting party, not amounting to absolute idiocy, is not a ground for 
 avoiding his contracts;' but it may furnish strong ground of sus- 
 picion that a fraud or imposition has been committed ; and if it can 
 be shown from the circumstances or othcEwise that an undue and 
 improper advantage has been taken in the contract, a court of law 
 will avoid it for the fraud.' 
 
 § 33. The care and custody of idiots, lunatics, persons of unsound 
 mind and habitual drunkards was formerly vested in the court of 
 chancery. It is now in the supreme court.^" "Where, upon an inqui- 
 sition taken before commissioners, one is found to belong to either of 
 these classes of persons, the court appoints a committee of his person 
 and estate, and thenceforth his committee being vested with the 
 exclusive power of acting for v him, all his contracts are absolutely 
 void. The committee brings actions in his own name for all debts, 
 or claims of the person in his charge, and under the direction of the 
 court transacts all the business pertaining to his estate, and can 
 
 ■ 4 Cowen, 307. 46 Barb. 330. 16 K • 33 N. T. 619. 
 Y. 58. 33 id. 147. ' 33 N. Y. 619. 16 Barb. 359. 37 Cal. 
 
 , " 4 Oowen, 307. 1 Paige, 171. 37 lU. 376. 
 895. 46 id. 358. » 3 Denio, 37. 3 Comstock, 498. (But 
 
 ' 35 N. Y. 9. (See 1 Brad. 381.) 8 Ind. see 35 N. Y. 9.) 36 111. 109. 40 id, 188. 
 411. 18 lU. 383. 43 Mo. 137. 7 Iowa, " 4 Oowen, 307. 3 Wend. 636. Shel. 
 00. on Lun. 414. 3 Iowa, 111. 
 
 * 31 Barb. .107. '» 3 R. S. 53, § 1. 3 id. (Banks' 5th ed.) 
 
 '33 1T. Y. 715. 134. Laws of 1884, eh. 417, p. 999. 
 
THE CONSIDEEATIOIT. 19 
 
 defend any action on a contract made by him previous to tlie com- 
 mission, by showing his idiocy or lunacy at the time.* 
 
 § 34. Idiots and hinatics, although not liable upon express con- 
 tracts, are responsible for necessaries furnished them ; ^ and a lunatic 
 is also answerable for articles purchased by him, before a commission, 
 from ,one who was not aware of his lunacy.* They are also at all 
 times answerable in damages for any injury they may do to another.* 
 When sued for necessaries famished, idiots must defend in person, 
 and the court should appoint their committee or some other person 
 to assist in the defense.^ Lunatics, when sued, appear by guardian 
 or attorney, in flie same manner as sane persons.' But although 
 actions may be maiatained against idiots and lunatics, the supreme 
 com't will not permit an execution to issue against their estates when 
 in the charge of a committee, and in ordinary cases will not permit a 
 party to bring an action against them, excepting by express permis- 
 sion obtained upon petition for relief 
 
 § 85. Alien enemies are citizens of a foreign country with which 
 our country is at war. If however they are residing in this country, 
 their contracts are valid notwithstanding they owe allegiance to ^he 
 enemy.* ' 
 
 § 36. Infemts, by which term are meant all persons of either sex, 
 under twenty-one years of age, are incapable of mating express con- 
 tracts which can bind them. Their contracts, however, are not 
 absolutely void, but voidable only at their election. The law relative 
 to them is more fully given, infra sections 1013, &c. 
 
 § 3T. The consideration of all contracts nvust he legal, and all 
 those which contravene the general policy of the common law or the 
 provisions of any statute are void, and courts will neither aid the 
 parties to enforce them, nor, if executed, afford relief by restoring the 
 parties to the condition they were in before performance.' The 
 former illegality exists whenever the consideration involves an act 
 which violates public policy or morality ; as one to commit, conceal 
 or compound a crime ; for illicit cohabitation, or for the commission 
 
 'Lawsl845, ch. 113,§3,p.91. 3RS. » 18 John. 134. 13 Barb. 439. 
 
 (Banks' 5th ed.) 135, § 11. Supra, § 83. '3 John. Ch. 400. 19 "Wend. 649. 3 
 
 = 3 Brad. 133. Story on Con. §§ 43, Paige, 199. 3 Barh. 153. 13 id. 439. 36 
 
 &c. Parsons on id. 313. Infra, § 1034. id. 173. 
 
 ^ 14 Barb. 488. 5 B. & C. 170. 7 Do-sv. ' Story on Con. §§ 53, i&c. 
 
 & Ry. 614 3 C. & P. 178. " 4 Hill, 434. 3 Seld. 179. SO Barb. 
 
 ^ 9 Bac. Ab. tit. "Idiots and Lunatics." 439. 17 id. 397. 13 Iowa, 398. 16 id. 
 
 (E.) Hob. 134. 49. 37 Ind. 363. 13 Minn. 59. 33 Ind. 
 
 ' Shelf on Lun. 395. 416. 45 111. 333. 
 
20 01" CONTEACTS, 
 
 of a fraud. The latter, where the act constituting the consideration 
 is expressly prohibited, or where the prohibition is necessarily implied 
 from the general object of the statute.^ In such cases the presump- 
 tion is that the legislature intended to make the contract void, if it 
 contravenes the statute. The court must judge whether it is so in 
 fact." A party however may waive the defense of the illegality of a 
 contract.^ If such a statute as just referred to is afterwards repealed, 
 this repeal will not render the contract valid.* 
 
 § [3Ta.J Among those special agreements which are void, as con- 
 travening the common or statute law, some of which cannot be classed 
 under any of the general heads in the succeeding sections, may be 
 noticed, among others, agreements by a debtor to deprive his credit- 
 ors, then existing or subsequent ones, of his earnings, by contracts to 
 labor for another, the debtor, however, retaining and using the earn- 
 ings for his own advantage f< the sale of a pretended title to land f 
 for lobby services before the legislature;' for the sale of property 
 intended by both parties to be used in violating the law f aU con- 
 tracts by which one promises to pay a portion of the fees to another 
 for his aid or influence in procuring an appointment to office f or to 
 withdraw- opposition to the discharge of his debtor as a bankrupt;^" 
 aU agreements for influencing the action of pubHc ofiicers-on ques- 
 tions coming before them j" those by the lessee of a hotel to lease 
 to another the bar of the hotel, and to sell him the right to sell 
 liquors under the vendor's lieense.^" So also an agreement that the 
 surety in a guardian's bond shall hold the property of the ward for 
 his indemnity ;i^ or that a person shall be paid a stipulated sum for 
 giving testimony, on the condition that it leads to a favorable or 
 satisfactory result to the other party, who is also a party in the suit," 
 and so in similar caseB.^' But a contract between a railroad 
 company and a gratuitous passenger, by which the corporation is 
 exempted from liability, under any circumstances, for damages for 
 the negligence, however gross, of its agents, is not void as against 
 
 'Story on Con. §458. Ohitty on =4 Kern. 162. 23 Barb. 604. Also, 16 
 
 Con. 579, &c. 11 Iowa, 133. 7 Ind. 133. N. T. 508. 4 E. D. Smith, 570. 
 
 11 Wis. 394. ~ » 4 Comstook, 449. 44111.113. 
 
 ' 1 Kansas, 226. 14 Ohio, N. S. 331. " 3 Seld. 176. 
 
 "4Keyes,208. Infra, § 50. "83 Barb. 518. 3Duer,103. 24111.614. 
 
 ' 47 Maine, 58. " 46 Barb. 616. 
 
 ' 14 Barb. 85. >» 9 Bosw. 332. 
 
 ° 20 Barb. 429. « 9 Bosw. 116. 
 
 ' 21 Barb. 361. 34 id. 588. « See 1 Minn. 230. 30 Cal. 183. 15 id. 
 
 387. 13 Ohio, N. S. 238. ' 
 
THE COKSIDEEATIOlir. 21 
 
 public policy, though one for its own negligence -wotild be ;^ nor is 
 one for procuring papers, furnishing information or memoranda, pro- 
 curing evidence or making arguments before the legislature or its 
 committees in regard to matters properly before them.^ A clause in 
 an agreement providing that all disputes relative thereto shall be 
 settled by a person then agreed on, as, in a building contract, that 
 questions arising thereunder shall be adjusted by the architect, is 
 void, as against public policy.* 
 
 [§ 375.] But there are cases where, although the transaction is an 
 niegal one, the law will give relief to one of the parties. Such av9 
 cases of usury, gaming, sales of lottery tickets, and similar transac- 
 tions, the rules as to which are clearly laid down in Sohermerhorn'Y. 
 Talman.^ 
 
 [§ 37c.] Questions sometimes arise in cases where either the con- 
 sideration is illegal in part only ; or, the consideration being legal, 
 the promise or proniises founded thereon are illegal in part. The 
 rule in these and similar cases is not always clear, nor laid down with 
 precision, but it seems to be well settled that if any part of the con- 
 sideration is illegal, the whole of it, and the ' agreement thereon 
 founded is void. But if the consideration is a good and valid one, 
 and thereupon another promises to do two things, one legal and the 
 other illegal, he shall be held to do that which is legal, unless the 
 two are so mingled and bound together that they cannot be separated, 
 in which case the whole agreement is void.^ 
 
 To the same extent, all contracts growing out of, or connected 
 with any prior illegal or immoral contract, or transaction, are void.^ 
 
 § 38. The law will always permit a defendant in an action upon a 
 contract to show the illegality of its consideration, although it may 
 be in writing, or even under seal, and this, notwithstanding the 
 general rule, that no parol evidence can be received to contradict, add 
 to or vary the provisions of a written agreement between the parties 
 to an action.'' The presumption in all cases, where it is not void on 
 its face, is in favor of the agreement ; and where it is susceptible of 
 two meanings, the one legal and the other illegal, in the absence of 
 proof to the contrary, the interpretation which renders it legal is to be 
 
 '34N.T.i81. Id. 196. Iafta,§106,a. 17 Barb. 397. 31 id. 361. 84 id. 533. 46 
 
 » 4 Kern. 389. 34 Barb. 533. 5 Wis. id. 616. 15 Cal. 387. 39 id. 367. 34 id. 
 
 300. 601. 36 111. 458. 34 Ind. 395. 35 id. 31. 
 
 = 39 K. T. 377. ° 31 Barb. 361. 17 id. 397. 
 
 * 4 Kern. 93, 133. See also id. 163. ' 34 Barb. 533. Cliitty on Con. 380. 38 
 
 * 1 Parsons on Con. 380. 3 Comstock, 37. Ind. 590. 
 
22 OF CONTEACTS. 
 
 preferred.^ And in all cases, the illegality, must be distinctly shown 
 either from the terms of the in&trtiment or other proof, or the con- 
 tract will be sustained. This other proof may be made, among 
 other ways, by showing the declarations and admissions of the par- 
 ties, OS their acts and proceedings under the contract, giving it a 
 practical construction.' 
 
 § 39. By a statutory provision it is made lawfal for an injured 
 party to compound and settle with any person bound by recognizance 
 to appear, or who is in prison on a charge for an assault and battery 
 er other misdemeanor, for which such injured party has a remedy by 
 civil action, unless it was an assault and battery or other misde- 
 meanor committed by or upon an officer or minister of justice in the 
 execution of the duties of his office, or riotously, or with an intent 
 to commit a felony.' In such a case a contract will be valid. 
 
 § 40. But where I request another to do an act which in fact 
 amounts to a trespass, and agree to indemnify him for doing it, if he 
 at the time does not know it to be a trespass, my promiee of indem- 
 nity is good. As where I direct an officer to levy an execution in 
 my favor upon certain property, which happens to belong to another 
 person than the defendant in the execution ; or where I direct my 
 agent to take possession of a fishing ground in possession of another ;* 
 or where a highway commissioner directs one to remove a turnpike 
 gate which he believes to be a nuisance.^ In these cases the promise 
 is invalid if it appear that the promisee knew the act to be a trespass 
 and illegal.* This promise of indemnity will be implied by the law, 
 if an express one is not given.'' 
 
 § 41. The promise of indemnity mentioned in the preceding sec- 
 tion, includes an authority to the promisee tb employ and indemnify 
 agents to do the act, and any damages he may be compelled to pay 
 for their acts in performance of the request may be recovered by him 
 from his principal upon his promise of indemnity, as well as such 
 damages as he may have to pay directly for his own acts.^ 
 
 § 42. Of the class of contracts void as founded upon an immoral 
 consideration, are all those which have a tendency to promote licen- 
 tiousness ; as for the payment of the board of a woman where the 
 
 ■34 Barb, supra. 63id.S76. Chittyon » 17 Jolin. 143. 
 Con. 581. "17Jolm. 143. 9 Cowai, 154. 14 Ab- 
 
 ' 34 Barb, supra. bott, 144. 
 
 ' 3 R 8. 730, §§ 66 to 69. 3 id. (Bante' ' 4 Keman, 333-3. 15 Barb. 848-9. 
 5th ed.) 1031, 3, §§ 70, &c. • 9 Cowen, 154 
 
 'QCowen, 154. 34^. T. 191. ' 
 
, '^ THE CONSEDEEATION. 
 
 purpose was to favor an illicit iatercourse with her ; for the hiring of 
 a house or lodgings for purposes of prostitution ;* for the printing 
 and sale of indecent books or pictures ;' for the use of gaming appa- 
 ratus at a place where gaming is prohibited;' for the printing or 
 publishing of libels.* Agreements to fight, and the like, are also 
 within this class of contracts.' The law will not presume that the 
 consideration is an immoral one, as that a promise to pay for the 
 board of a woman is for the purpose of illicit intercourse ; that pur- 
 pose, if it exists, must be clearly proved, and is not to be inferred 
 from past cohabitation alone.' 
 
 § 43. Contracts to pay for past seduction or past cohabitation are, 
 however, excepted from the rule, their object being deemed th'e 
 redress of the injury suffered by the woman.' And an action, for 
 clothes sold to a prostitute, cannot be defeated by showing that the 
 plaintiff knew her character, although, from the nature of the arti- 
 cles, the use to which they would be applied might have been known 
 to him ; to render tie contract illegal, the clothes must have been 
 sold or the lodgings let for the purpose of enabling the defendant to 
 carry on her business of prostitution.^ An agreement to pay for 
 the washing of the clothes of a prostitute (although they are to be 
 worn in her business) is good.' 
 
 § 44. Although a contract made to indemnify one against the con- 
 sequences of thereafter committing an immoral or illegal act will be 
 void, yet a contract to indemnify one against the consequences of one 
 already done is valid." 
 
 § 45. Contracts for trading with an enemy (although suit is not 
 brought on them until after the war has ceased)," for the prevention 
 of the course of justice,^ and buying and selling offices,'' are void as 
 contrary to public policy. Formerly, the officious assisting one to 
 prosecute or defend a suit at law, called mamUnanoe, or the purchase 
 
 ■ 5 Cowen, 353. 4 Denip, 444 ' See note (6) supra, Also 1 Camp, 348. 
 
 «4E8p.97. 2C.&P.198. Sess. Laws 3 C. & P. 347. 
 of 1868, 856, ch. 430. ' 1 Bos. & P. 340. 
 
 '13 John. 85. 1 R S. 661, § 4. Sid. •» 1 Caines, 450. 14 John. 378. 3 Hall, 
 
 (Banks' 5th ed.) 933, 579. 13 Barb. 365. 
 
 * 3 C. & P. 198. " 16 John. 488. 
 
 ' Chitty on Con. 593. " 87 Barb. 343. 13 Ohio N. 8. 338. 40 
 
 » 5 Cowen, 353. Supra, § 38. See also Mo. 67. 87 Ind. 498. 
 as to immoral contracts 34 Ind. 115. " 3 R. S. 696, §§ 35, 36, 37. 3 id. (Banks' 
 
 '5 Cowen, 353. 4Denio,439. 13 Barb. 5th ed.) 977, §8 37, 38, 39. 
 93. See, however, as to cohabitation, 4 
 B. & Al. 650.* 
 
24 OF CONTEACTS. 
 
 of a suit or riglit of action to prosecute, called champerty, were also 
 void for the same reason. But even then, it was lawful for a man 
 to assist his near relative, his servant or a poor neighbor to prosecute 
 a suit.^ The Kevised Statutes have repealed some of the old rules 
 relative to these questions ; and it is now probable that, in New 
 York, not a vestige of the law of maintenance or champerty exists, 
 except the prohibitions against taking conveyances of lands in 
 suit, buying or selling pretended titles, and conspiracies falsely to 
 move or maintain suits.* Attorneys may make agreements with 
 their clients to receive a part of the recovery towards their compen- 
 sation.* 
 
 [§ 4:5a. j "We have just referred (section 45) to the law against selling 
 office. Another statute (2 E. S. 286, § 59),* prohibits any sheriff or 
 other oiScer taking any bond, obligation or security, by virtue of his 
 office, in any other case or manner than allowed by law, and makes 
 all such bonds, «fcc., void. It is held not to be a violation of either 
 of these statutes for a sheriff to make an agreement with a deputy 
 to receive a portion of his fees.^ This last statute, only prohibits - 
 those securities which are taken xmder vaoire pretense of authority, or 
 corruptly, and not such as are allowed by common law or some sta- 
 tutory provision.* 
 
 § 46. Contracts in restraint of marriage, or by which one under- 
 takes to induce another to marry, are void, as against the policy 
 of the law, which is to encourage marriage, and also to leave mar- 
 riage engagements to be formed free from the bias of fraud or 
 interest.'' 
 
 § 47. Contracts in restraint of trade, which prohibit a party from 
 the pursuit of a particular occupation, or the carrying on of a par- 
 ticular business in any place in the state, are void, as injurious to the 
 public, and against public policy. But where the retraint is limited, 
 as that one wiU not exercise his trade or carry on his business in a 
 particular place, or within reasonable limits, the contract- will be 
 upheld if it appear that in addition to the pecuniary consideration 
 for the restraint, there was some good reason for the contract, and 
 that it imposes no restraint upon one party, which is not beneficial 
 
 ' 3 Jolin. Ch. 508. 3 Cowen, 633. 5 * 3 B. S. (Bante* 5tli ed.) 476, § 4S. 
 
 Denio, 308. 4 Bl. Com. 135. See 37 Ind. ' 1 HUl, 21. 6 Paige, 68. 
 
 363. 25 Iowa, 487. » 33 "Wend. 606. 16 N. Y. 443. 18 id. 
 
 = 4 Kem. 289. 4 Duer, 275. 2 K. S. 117. 
 
 691, 2, §§6, 7, 8. 3id.(Banis'5tlied.)972. ' 1 Pars, on Con. 586, 556. 8 Wend. 
 
 '33 Barb. 430. 390. 
 
 \ 
 
THE OONSIDEEATION. ' 25 
 
 to the other.^ What are good reasons, or reasonable limits, must 
 depend upon the nature of the trade or business to wiiieh the con- 
 tract relates.^ As a general rule it has been laid down that the law 
 will not allow any one, for any time, however short, to preclude 
 himself from serving the pubKc in any business, or in any territory 
 however limited, unless the obligee intends to and can supply his 
 place.' 
 
 § 48. The rule being thus indefinite, no precise boundary can be 
 laid down for determining whether contracts for a limited restraint 
 of trade are within the policy of the law. If the contract contains 
 a restraint far larger than is necessary to protect the plaintiff from 
 interference in his trade or business, no action can be sustained upon 
 it.* Under this and the other rules above given, many decisions have 
 been made, sustaining or disapproving particular agreements ; it is 
 unnecessary as it would be impossible to refer to them all, or to 
 attempt to deduce a more specific rule from them. Many are found 
 or are cited in the cases referred to" in the margin, and must be them- 
 selves examined when any new case arises. 
 
 § 49. Agreements with a public ofBcer for him to neglect his duty, 
 as for instance to suffer his prisoner to escape;' that he will not 
 arrest one on process,^ or having taken him, to let him go on a promise 
 to pay him the money or surrender himself by such a time,' are 
 void.* 
 
 § 50. Contracts and securities on account of money or property 
 wagered, bet or staked,' in violation of the laws against lotteries," or 
 the racing of animals ;" for the sale of liquor contrary to the excise 
 laws;" for the sale of merchandise, or the. doing of any act forbidden 
 
 ' 7 Cowen, 807. 21 Wend. 157. 6 oth ed.) 924. 1 Comstook, 411. 15 N. Y. 
 
 Seld. 241. 23 Barb. 633. 2 Ohio N. S. 524. 20 id. 9. 19 Barb. 122. 6 Cal. 359. 
 
 519. 3 id. 274. 11 id. 349. 6 Cal. 258. 11 id. 843. 4 Mi^. 329. 6 Wis. 468. 4 
 
 6 Ind. 200. 11 id. 70. 3 Chand. 133. 3 Kansas, 94. 1 Minn. 94. 10 Ind. 161. 
 
 Greene, 596. 4 Kansas, 159. 18 Wis. 11 id. 59. id. 447. 18 id. 178. 6 Clarke, 
 
 542. 42 Mo. S45. 894. 7 id. 17. 23 III. 493. 26 id. 404. 
 
 ■ 9 How. Pr. E. 335. 27 id. 330. 33 id. 349. 36 id. 544. See 
 ' 10 Barb. 641, 651. 1 Oregon, 281. 
 
 * 6 Seld. 241. 9 How. Pr. R. 385. 6 '° 1 R. S. 665, §§ 24, &c. 2 id. (Banks' 
 Ad. & E. 445. 5tli ed.) 929, §§ 32, &c. 5 Jobn. 327. 10 
 
 • 4 Mass. 370. Ind. 404. Id. 438. 
 
 » 5 Mass. 385. " 1 R. S. 672, §§ 55, &c. 2 id. (Banks' 
 
 '5 Mass. 541. , 6tb ed.) 932, §§ 40, &c. 20111.215. 
 
 ■ 7 Greenleaf, 113. 8 John. 198. 8 '' Laws of 1857, Vol. 2, p. 405, §§ 10, 
 East. 171. &c. 2 E. S. (Banks' 5tli ed.) 941, §§ 11, 
 
 "IRS. 662, §§ 8, &c. 2 id. (Banks' &c. 
 
 4 
 
26 
 
 OF OONTEACTS. 
 
 by statute to be done on Sunday/ are void, as contravening the plro- 
 visions of a statutory enactment. In regard to the observance of 
 tke Sabbaitb, it is held that all business transactions are valid, except 
 so far as prohibited by this statute, and judicial proceedings which , 
 are void at common law ; ^ that a carrier is liable for property lost, 
 though the contract was made and the property delivered on Sunday, 
 there being no obligation to transport'it on that day ; ^ that it is not 
 a violation to preserve property on that day, if exposed to imminent 
 danger ;* nor to make a ' private sale of a span of horses ; or any 
 other mere bargain^ not violating the day nor intended to; the 
 delivery on that day of a deed previously executed will pass the 
 title;* but a contract for the pubHeation of an advertisement in a 
 newspaper to be issued on Sunday,'' or for the hiring of horses and 
 carriage with the knowledge that they are to be used on that day for 
 riding for pleasure, are void ; ' and so, in some of the states, swapping 
 horses, selling property, giving a promissory note or deed,* and for 
 all other seuvile work, except that of " necessity or dhiarity ;" unless 
 it be shown that the parties observed another day as the Sabbath.^" 
 In the legal estimation, Sunday continues from midnight to midnight 
 in this state, though in Connecticut it is held to last only from sun- 
 rise to sunset." But these Sunday contracts may afterwards be 
 ratified on a week day and then they are good. Merely returning 
 the property received however is not a ratification.^* In Indiana, it 
 is held that a sale of property to be used in gaming, and that to the 
 vendor's knowledge, is not void.'' 
 
 § 51. Contributions of money to promote the election of any per- 
 son or ticket are, except when intended to defray the expenses of 
 printing and the circulation of votes, handbills and papers previous 
 to an election, forbidden by statute." Under this prohibition it was 
 
 ' 1 R. S. 675, §§ 69, &c. 2 id. (Banks' ' 24 N. Y. 353. 
 
 5tli ed.) 935, §§ 65, &c. Laws 1869, ch. " 46 Barb. 59. 
 
 909, § 11. a Wis. 343. 26 Ind. 499. 25 ' 10 Ind. 380. 9 id. 112. 4 id. 619, 13 
 
 id. 503. 3 Oregon, -190. 14 Mich. 287. id. 565. 25 id. 503. 13 Midi. 378. 8 
 
 16 Iowa, 49. 40 Mo. 555. Minn. 41. 9 id. 194. 
 
 '8 Ciiwen, 27. 31 Barb. 38. 31 lU -» 1 Hill, 76. 3 Sand. 318. 4 01uoN.S. 
 
 469. See 36 Cal. 514. 566. 16 Iowa, 49. 31111.469. 
 
 ' 39 N. Y. 115. " 15 John. 177. 8 Baib. 384. 1 Root, 
 
 ' 23 Barb. 539. 145. 3 Conn. 541. 
 
 • 13 Wend. 435. 44 Baib. 618. 4 E. " 35 Ind. 503. 26 id. 499, Supra 8 37 
 
 D. Smith, 23i. 2 Ohio N. S. 387. Aliter " 24 Ind. 1. , ' 
 
 9 Minn. 194. » Laws of 1842, ch. 130. IRS (Banks* 
 
 «27Penn. 90. 44 Maine, 28. 5th ed.) 448, § 6. 
 
TOID FOE USUEY. g'i; 
 
 held that a contract to build a log cabin to accommodate political 
 meetings during an election canvass, to aid the success of a party, 
 was illegal and void.* This judgment was afterwards affirmed by a 
 tie vote,** but has never entirely satisfied the profession. A subse- 
 quent case has held that it should not be extended, and that an action 
 may be maintained for services rendered for another, under a con- 
 tract, in putting up and taking down a tent used by the employer as 
 a place for holding political meetings previous to an election.^ 
 
 § 52. Usurious agreements which, in New Yofrk, include all bonds, 
 biUs, notes, assurances, contracts or securities (except bottomry and 
 respondentia bonds and contracts), and all deposits of goods, or 
 things whereupon or whereby there shall be reserved or taken or 
 secured, or agreed to be reserved or taken, any greater sum or value 
 for the loan or forbearance of money, goods or things in action, than 
 at the rate of seven dollars for the hundred for a year, are by statute 
 declared void.^ While the defense of usury is a legal one, it is called 
 "unconscionable,"^ and is not encouraged.® Parties alleging it were 
 formerly held to great strictness in pleading it,'' but siace the Code, 
 the same rules of pleading apply to this as other defenses.^ But the 
 right to insist upon it is one personal to the borrower, or his sureties, 
 heirs, devisees or personal representatives.' An indorser, in a suit 
 against him by an indorsee, cannot allege that his indorsement was 
 void for usury between him and another person." By a statute of 
 Kew York, corporations, including associations and joiut stock com- 
 panies having any of the powers and privileges of corporations, 
 cannot interpose this defense." This statute prohibits these corpora- 
 tions, &c., from recovering back money paid in excess of legal interest, 
 and applies to their sureties as well as to themselves.''* 
 
 § 53. This statute applies only to loans of money, or of something 
 to be returned im, kind, and not where the thing itself is to be 
 returned. Thus, a loan of wheat, to be repaid by other wheat of 
 equal or greater value, with more than seven per cent interest would 
 
 ' 5 HiU, 27. ' 5 Seld. 73. 30 N. Y. 197. 33 id. 31. 
 
 ' 7 id. 387. 37 id. 224 1 Transcript, 263, and refs. 
 
 • 28 Barb. 109. 26 Barb. 635. 30 id. 626. 
 
 • 1 B. S. 773, §§ 2, &c. 3 id. (Banks' » 28 N. Y. 481. 
 
 5thed.)73. " Laws of 1850, ch. 173, p. 384 3 E. S. 
 
 - 9 Cowen, 66. (Banks' 5tli ed.) 75, § 19. 
 
 ■ 3 Wend. 573. « 23 N. Y. 275. 33 id.' 66S. 30 Barb. 
 
 ' 4 Paige, 536. 3 "Wend. 573. 626. 
 
 • 1 Kern. 368. 48 Barb. 256. But see 
 31 N. Y. 567. 
 
28 OF CONTEACTS. 
 
 be usurious. But tlie loaning of a horse or other property for what- 
 ever compensation, or a loan of five bushels of wheat to receive ten 
 after harvest, is not usurious within the statute.* The general 
 doctrine is, that where the contract is clearly for the repayment of a 
 greater value than the amount of the loan and the lawful rate of 
 interest it is usurious, and that it is not sufficient that the repayment 
 is to be of a greater quantity of the same article, wliich may or may 
 not, from the fluctuations of trade, be worth more or less than the 
 loan.' Thus, a sale of cows on a contract fo return double the num- 
 ber and description at the end of four years, or of sheep to double in 
 three years, was held not usurious;^ so where one let sheep to 
 another to return in one year an equal number of the same age and 
 qiiality, to pay fifty cents each for their use, that being more than 
 seven per cent on their value, it was held the agreement was not of 
 itself usurious, and presented a question of fact whether it was made 
 with intent to avoid the statute or not.* 
 
 § 54. A loan of money to be repaid upon the happening of an 
 uncertain event, witl;i a charge of more than seven per cent, is not 
 usurious, if the risk is a part of the contract and one of its essential 
 features.^ As if the loan is to be paid on the return of a ship, or the 
 death of a certain person. The hazard must be real and must extend 
 to the principal as well as the sum to be paid for its use, and a slight 
 hazard or contingency will not be sufficient to take the case away 
 from the operation of the statute ; as where A loans B £100 to be 
 returned in one year, and with £20 for the use of it if the son of A 
 be then alive, for the uncertainty of the life of A's son is too slight." 
 
 § 55. A contract for the loan of money made in a foreign country 
 or state where the laws permit a greater rate of interest, is valid and 
 may be enforced here if it were valid and enforceable where made.' 
 But where a contract is made in one country to be executed in 
 another, the rate of interest is to be governed by the laws of the country 
 where it is to be performed, and the contract will be void or not as 
 it is in contravention or accordance with its laws.' But where a con- 
 tract is made which is in violation of the usury laws of the state 
 where it is made, it is void elsewhere, unless it was made in the con- 
 
 > Ord. ITsury, 26, 28. 5 Cowen, 149, » Ord on Usmy, 24, 25 and 39 to 48. ■ 
 
 note. 3 Comstock, 344, 855. 1 Seld. 315. • Com. on Usury, 39, 40. See 2 Paige, 
 
 Kirby, 260. 267. 1 Sand. Ch. 203. ,22 Barb. 118. 
 
 = Kirby, 2G0. 5 Cowen, 149, note. 1 ' 22 Barb. 118, 128. 45 id. 340. 
 
 Seld. 315. 4Keman,120. »23N. Y. 472. 30 id. 264. 22 Barb. 
 
 = 5 Cowen, 144, 149, note. 128. 26 id. 208. 38 id. 352. 
 
 * 17 Wend. 280. 1 Seld. 315. 
 
VOID FOE UStTET. '- 29 
 
 BTimmation of an agreement entered into in a state where the interest 
 reserved was lawful, in which case it is valid.^ If made and payable in 
 one state, but negotiated in another, the law of the place where made 
 and payable governs.^ The usual presumption that the law of a 
 foreign state or country agrees with that of the place of suit, does 
 not always exist in usury cases. The party insisting on the usury 
 must, if the contract was made elsewhere, allege and prove that the 
 interest agreed for was forbidden by the law of the state under which 
 the contract is to be construed.^ But, if a bond and a mortgage oh 
 lands in Wisconsin, is given in another state, where it would be 
 void for usury, and suit is there brought, the plaintiff must prove 
 that it was valid in Wisconsin.* 
 
 § 56. An agi-eement to pay a certain sum in gross if the principal 
 be not paid at the time appointed, or a certain sum per annum beyond » 
 seven per cent until the principal be paid, by which the debtor may 
 discharge himself of the extra payment at any time, is not usurious.^ 
 As if I agree to pay " sixteen dollars extra " if I do not pay eight 
 hundred dollars by a certain time ; ^ or, where I owe £80, and give 
 my note for £87 36s. payable in four quarterly installments (being the 
 amount of principal and interest at the last payment), and if any 
 installment is not paid, the whole is to become due ; this is not usuri- 
 ous and the whole may be collected if any installment is not paid.' 
 
 § 57. To constitute usury, both parties must intend to provide for 
 the payment of more than the legal rate of interest.^ The reserva- 
 tion of more by accident, or mistake, or with the knowledge of but 
 one of the parties, is not enough, even where the lender, after advanc- 
 ing the money but before receiving his security, discovers the mis- 
 take.' But where a bank adopted an erroneous method of computing 
 interest which gave it more than the legal rate, it was held usury." 
 Where the excess taken is trifling, it will be presumed taken by mis- 
 take and not by an erroneous rule of calculation until the latter be 
 shown." If there is no usurious agreement, the question of an usuri- 
 ous intent is immaterial.^' But if there is such an agreement, inten- 
 
 ' 1 Paige, 330. ' 4 Moore, 78. S. 0. 1 Bred. & B. 447. 
 
 ' 1 Seld. 178. 30 K T. 359. _ And see 38 Barb. 39. 37 id. 60. 
 
 ' 3 Seld. 124. 23 N. Y. 473. 33 Barb'. « 19 Jolrn. 496. 1 Keyes, 191. 3 id. 506. 
 
 139. 41 Barb. 359. 
 
 * 46 Barb. 372. And see 1 Kern. 437. ° 2 Vent. 83. 2 Kern. 331. 31 N. T. 
 
 ' Ord. on Usury, 53, &c. Com. on 66. 33 Barb. 560 refs. 
 
 Usury, 73, 74. 33 Barb. 134. " 3 Cowen, 678. 
 
 ° 29 N. T. 337. " 1 Barb. 433. \ 
 
 " 31 K Y. 66. 
 
30 GF CONTEACTa. 
 
 tionally made, the contract is void, whetlier the parties act ia ignorance 
 of the law or not.^ 
 
 § 58. Where the contract is for receiving more than the legal rate of 
 interest, it is immaterial whether the premium be money or any other 
 thing, and whether it is actually paid or only promised to be paid, or 
 whether one note or obligation be taken for the principal lent, and 
 another or a parol agreement is made for the usury. In all these 
 cases the contract is void, and all the securities taken are infected 
 with the usury .^ 
 
 '§ 69. A note for the payment of a particular sum with interest 
 from a day anterior to its date, in itself affords no evidence of usury f 
 nor would a reservation of interest quarterly, or half yearly, or the 
 taking of the interest in advance, be usurious.* And in computing 
 «the interest in advance, the three days of grace may be included.^ 
 So the including in a note, compound interest on a previous account 
 or demand ; * or simple interest in a note given for a demand not 
 legally bearing interest;' or including the usual difference of 
 exchange between the place where the payer' resides and the note is 
 to be paid, or letting the borrower have uncurrent money, at his 
 request, and as being equally as good for his purposes as current 
 funds* is of itself no evidence of usury.® "Where, however, it is 
 made so payable merely to afford the lender a greater rate of interest, 
 it is usurious." The intention in such cases is a question of fact. 
 
 § 60. Where a note was not made upon an usurious contract, the 
 payee or indorsee who owns it may sell it at a discount at a rate 
 above seven per cent., and the purchaser may collect it." And where 
 two persons exchange their notes, of equal amounts, for the purpose 
 of raising money upon them, and one negotiates the note received by 
 him at a discount beyond the legal interest, the note is not usurious.^ 
 The reason is, that each gave his note to the other upon a good con- 
 sideration, and the note he received is a valid security in his hands 
 to dispose of. But if, at the time the notes were exchanged, it was 
 contemplated by the parties and the purchaser that they should be 
 sold at an unlawful discount, they would be usurious ;^' and so if the 
 
 ■31N. Y. 473. 34 Barb. m. »3Keyes, 500. 
 
 " 9 Gowen, 65. 18 Wend. 505. 13 Barb. ° 10 Wend. 116. 19 K Y. 134. 33 id. 
 
 360. 613. 46 Barb. 98. 
 
 = 8 Wend. 533. 1 Barb. 235. ■» 33 K. Y. 55. 46 B. 98. 
 * 3 Wend. 408. 5 Paige, 98. 3Eem.333. " 7 Wend. 356. id. 669. 
 
 ' 3 Cowen 664. Id. 678. " 6 Seld. 198. 84 Barb. 157. 4 Buer, 
 
 ' 1 Barb. 637. 3 id. 233. 358. 6 id. 533. 
 
 '6. Seld. 203. " 11 Paige, 660. 
 
VOID FOE TTSUET. 31 
 
 securities exchanged are of unequal values, arising from diiferences 
 in their amounts or otherwise, so that one gains an advantage over 
 and above seven per cent, they are usurious and void.^ 
 
 § 61. "Where the holder of a mortgage not yet payable offered to 
 the mortgagor to make a discount for immediate payment, and lihe 
 mortgagor being unable to raise the money, agreed with another to 
 raise it and take an assignment, and have part of the discount as 
 compensation for raising the money, it was held the agreement was 
 not usurious, and that a new security given for the amount paid by 
 the assignee, and his share of the discount, was valid, and this though 
 it was a part of the agreement that the new mortgage for those 
 amounts should be given.^ 
 
 § 62. Where a promissory note is made, to be discounted either 
 for the maker or for some one to whom he has lent his name, and is 
 what is called accommodation paper, it has no legal inception until 
 it is negotiated ; and if it is negotiated at a rate of interest greater 
 than seven per cent, it is usurious. It will make no difference if it 
 were made or indorsed with a view to being discounted at a legal 
 rate, nor that the loan was made by an agent of the lender ; in either 
 case the note, taking effect in the first instance under an usurious 
 contract, is void, even in the hands of a bona fide holder.* But if, in 
 this and similar cases, the maker gives a certificate, or otherwise 
 represents that the paper is valid, or given for value, and it is there- 
 upon purchased in good faith by a third party, at a discount exceed- 
 ing seven per cent, he is estopped from alleging usury,* provided the 
 certificate or other representation is outside of the face of the paper 
 itself But a distinction is here to be taken between these cases, 
 and those where a person, for a consideration, by way of commission 
 or otherwise, sells his credit to a third person ; as if he indorses a 
 note for a certain per cent on its amount, or guarantees it. In these 
 and similar cases, which are called a sale of one's credit, the transac- 
 tion, if bona fide, and unconnected with a loan between the parties, 
 is valid, though otherwise usurious.^ ISTeither is it ■nsxm.ou&, per se, 
 for a factor to charge a percentage for sales or for advances.'' 
 
 § 63. A creditor is not allowed as a condition of a loan, except in 
 
 ' 4 Kem. 93, 120, 131. . 34 Barb. 157. 6 * 26 Barb. 611, and refs. Also 3 Keyes, 
 
 Duer, 582, and refs. 609. 
 
 = 4 Paige, 526. 35 N. T. 494 » 22 N. T. 312. 
 
 " 8 Cowen, 669, 686, 690. 4 Kem. 98. " 81 N. T. 611, and refe. S. C. 4 Bosw. 
 
 36 Barb. 585. 5 Duer, 468. And see also 320, and refe. "4 Corns. 368. 21 N. Y. 
 
 1 Kem 368. 3 Duer, 53. 3 Conn. 175. 531. 37 id. 356. 1 Edmonds' Sel. Cas. 371. 
 
 ' 27 N. Y. 137. 
 
32 OF CONTEACTS. 
 
 special cases, to receire a compensation for liis services in procuring 
 the money ; ^ but one who acts as agent for the maker in procuring a 
 loan may accept a compensation notwithstanding he be the payee of 
 the note.' Neither may a creditor make it a condition of the loan 
 that the borrower shall purchase a certain article, if the condition is 
 intended to furnish a greater compensation for the loan than the legal 
 rate of interest ; if it does it infects the transaction with usury .^ If 
 an agent falsely represents himself to be the principal in loaning the 
 money, and takes usury, this is not such usury as wiU avoid the 
 security if the real party was innocent and did not take usurious 
 interest himself.* 
 
 § 64. All promises, agreements and contracts, by which it is 
 attempted to provide for the payment of more than the legal rate of 
 interest, being void, the question whether the parties intended to 
 evade the statute, is one of fact, to be determined from the circum- 
 stances of the case.' If a real loan or forbearance on usui'y was 
 intended, no matter how subtle the invention to disguise it, all the 
 instruments affected by it are void. Among the numerous pretenses 
 which have been resorted to to cover usury, are the adding a colora- 
 ble risk, as making the payment depend, on the life or death of some 
 person, the lending money coupled with a sale of goods at an inordi- 
 nate price, the lending stock and charging interest beyond its market 
 value, the advancing money on a pretended partnership and receiving 
 usury under the head of partnership profits, the reserving interest as 
 rent on a lease to the borrower, at a high rent. In these cases, the 
 intention may be ascertained from the slightness of the hazard where 
 the loan is put at hazard, overtures for a loan, the exorbitance of the 
 price of goods upon a sale coupled with the loan, the price paid on a 
 repurchase where goods have been sold at a price and then repur- 
 chased for cash, the reservation of a right to repurchase, the distress 
 of the borrower, the form of the security, and the contemporaneous 
 and subsequent acts of the parties. In each case, the circumstances 
 are to be weighed and the question carefully detetmined, whether 
 there has been an attempt to evade the statute.^ This question is 
 
 •lJolin.Oh.6. 38N.Y.281. SKeyes, " 3 Keyes, 506., 
 
 41. 33 Barb. 350. ' See, for cases- tearing on these and 
 
 ' 5 Wend. 181. 31 N. Y. 319. 33 id. similar questions, as to what is or not 
 
 105. 33 Barb. 350. usury, many of the cases before cited, and 
 
 » IJohn. Ch. 536. 7 John. 196. 4 Kern, also, 3 Comstock, 344. 4 id. 363. Id. 463. 
 
 115, 116- Id. 335. 37 N. T. 137. 33 id. 605. 33 
 
 * 3 Keyes, 543. Barb. 77. 35 id. 44. 
 
VOID FOK TJSUBT. 33 
 
 one for the jury. If the usurious agreement is made by several, 
 either defendant when sued may set up the defense.^ 
 
 § 65. A judgment obtained by a regular proceeding upon a con- 
 tract which was usurious is valid,* and any security given thereon is 
 valid.* But if the judgment be obtained by confession upon an 
 usurious consideration, in the supreme court, or a court having power 
 to vacate its own judgments, upon motion or by a suit brought, it 
 might be set aside.* If the confession is in a justices' court and the 
 judgment be docketed, it would become a judgment of the county 
 court, and be subject to its power of vacating it.^ 
 
 § 66. Where a contract is not usurious in its inception, a subse- 
 quent agreement for forbearance upon any usurious consideration 
 does not affect the original contract.^ That remains valid, and the 
 usurious agreement only is void. And where the vaHd contract is 
 taken up and an usurious one given in its place, the latter being void 
 the original contract remains in force, and an action can be main- 
 tained upon it.' 
 
 § 67. A subsequent security taken as a substitute for an usurious 
 contract or any part thereof, or as collateral thereto, is void,^ unless 
 when it is given upon an arrangement to cancel all the usurious 
 features of the first, and to enter upon a new contract free from 
 usury." As where A borrows of B one hundred dollars upon an 
 agreement to pay interest at the rate of ten per cent. If a new note 
 is given at the end of the year for one hundred and ten dollars, it is 
 infected with the original usury. But if, after the note is made, A 
 and B agree to substitute a note for one hundred dollars with lawful 
 interest and cancel the first, the new note is valid.^" But, if a lona 
 fide holder of such paper, without notice of the usury, until after he 
 received it, takes a new valid security therefor, this cannot be avoided ' 
 for the original usury." And this is so whether the holder paid 
 money for it or took it for an antecedent debt.^ The possession of 
 negotiable paper is, in such a case, presumptive evidence that he is a 
 hona fide holder, and before maturity.** If the usurer receives an 
 
 1 15 Iowa, 49. ' 9 Cowen, 647. 33 N. T. 55. 5 Trans- 
 
 ' 1 Comst'ock, 274. cript, 61. 85 Barb. 96. 46 id. 273. 4 
 
 3 3 Caines, 150. Bosw. 573. 3 Term. R. 537. Com. on 
 
 * 2 John. Cases, 258. S. C. IJohn. 531, Usmy, 183. 45 111.178. 
 
 note. 5 Jolin. Ch. 132, 141, and refs. " 13 "Wend. 505. Clarke, 76. Id. 253. 
 
 s Code, § 63. "° Com- on Usury, 183, 184. 
 
 1 Com. 274. 41 Barb. 359. " 8 Cowen.'Oeg, 691. 1 Barb. Ch. 43. 
 
 - ,' Ord on Usury, 130, &c. 1 Corns. 274. 3 Sand. 85. 
 
 36 N. Y. 520. 37 id. 353. 39 id. 335. 41 '" Hofifa. 291. 
 
 Barb 359 17 Wis. 383. " 3 Sand. Ch. 320. 2 Sand. 85. 
 
34 OF CONTEACTS. 
 
 obligation in payment of a demand, he cannot afterwards avoid that 
 payment by alleging that the obligation was usurious and therefore 
 void ;^ but if a borrower on usurious terms assigns to the lender, 
 bonds and moj-tgages, in payment of the loan, the assignment is void, 
 and the borrower may immediately maintain trover for them.^ 
 
 § 68. Justices of the peace and constables are prohibited from 
 buying or being interested directly or indirectly in buying any bond, 
 note or other demand or cause of action, for the purpose of com- 
 mencing any suit thereon before a justice, and from lending or 
 advancing, or agreeing to lend or advance, or procure to be lent or 
 advanced, any money or other valuable thing, to any person in con- 
 sideration, or as a reward for or inducement to the placing or having 
 placed in their hands any debt, demand or cause of action for prose- 
 cution.' 
 
 § 69. The statute provides that " in any suit to be brought in any 
 action of debt, covenant or assumpsit, the defendant may give notice 
 with his plea, in addition to any other matter of defense, that on the 
 trial of the cause he will insist and prove that the demand on which 
 such action is founded has been bought and sold or received for prose- 
 cution contrary to law, without setting forth any other particulars." * 
 This provision in relation to the manner of pleading is supposed to be 
 repealed by section 140 of the Code of Procedure, by which all the 
 forms of pleading theretofore existing are abolished.* 
 
 § YO. The statute further provides, that in such a suit the defendant 
 may, two days before the trial, serve a notice on the plaintiff, requir- 
 ing him to appear to be examined, and in case he fails to attend, 
 without an excuse satisfactory to the court, he shall be non-suited. 
 If his absence shall be satisfactorily accounted for, the court shall 
 postpone the trial, on the plaintiff's payment of costs ; and if he 
 does not appear at the day to which it is postponed, he shall be non- 
 suited. If the plaintiff appears, he is entitled to. witness' fees, and 
 he is not bound to appear except from the county in which the cause 
 is tried, or an adjoining one. On the trial the plaintiff may be 
 examined on oath touching the matters set forth in the notice, and if 
 he refuses to answer any questions pertinent to show a violation of 
 this statute, or if, on the trial it appears that the plaintiff 's cause of 
 action has been bought or procured contrary to it, the plaintiff 
 
 ' 5 Seld. 241, « 3 R. S. 268, § 237. 3 id. (Banks' 5th . 
 
 ' 2 Seld. 107. ed.) 45S, § 168. 
 
 ' 2 R. S. 267, § 235. 3 id. (Banks' 5th • See 4 E. D. Smith, 234. 
 ed.) 454, § 161. 
 
VOID FOR DTJEESS. 35 
 
 shall be non-suited, and his evidence may not be used in any indict- 
 ment against him for a violation of this statute.* 
 
 § 71. The notice to attend the trial may be in the following form : 
 Justice's Court. Before Hiram Briggs, Esq. one of justices of the 
 peace of Chenango county. 
 
 Bichard Eoe \ 
 agt. j- 
 
 James Jackson. ) 
 Sir : Take notice that you are hereby required to appear person- 
 ally on the trial of this cause, on the Tth day of June next, at one 
 o'clock, p. ST., at the office of the above named justice at Sherburne, 
 to be examined pursuant to the provisions of article 13, title 4, chap- 
 ter 2, part 3 of the Eevisefi Statutes. Dated June 1, 1869. 
 
 Yours, &c. 
 
 James Jaokbost, 
 
 Defendant in the cause. 
 To Mr. Eichard Eoe, 
 
 Plaintiff in the cause. 
 
 It should be delivered to the plantiff personally, if he can be found 
 at his place of residence. If not, it would probably be sufficient to 
 leave it at his dwelling-house, with some member pf his family of 
 siifficient age and discretion to be charged with its delivery to him on 
 his return. The two days service is to be computed by including 
 the one on which it is served, and excluding that of the trial. 
 Thus a notice for a trial on the seventh of the month, may be given 
 on the fifth, unless Sunday intervenes, when it must be on the fourth." 
 This is the rule except where a thing is required to be done a certain 
 number of days before a given day, and then both days are excluded.* 
 
 § 72. Duress by imprisonment or threat avoids all contracts. The 
 first is where one is unlawfully restrained of his liberty, either in a 
 common prison or elsewhere. His contracts made while under the 
 restraint, are void, notwithstanding the consideration would other- 
 wise be sufficient. But if the imprisonment be lawful they are valid, 
 unless undue force or privation be employed to extort them, and, in 
 such case, the force or danger must be such as may well overcome a 
 firm man. If, however, one be arrested upon process issued malici- 
 ously, and without probable cause, although it be regular and legal 
 
 '3 R. S. 268, §§238 to 2^. Sid. » Code, § 407. See 28 Barb. 285. 
 (Banks' Stli ed.) 456, §§ 164 to 168. ' 5 "Wend. 137. See 28 Barb. 285. 
 
86 
 
 or CONTEACTS. 
 
 in form, a deed obtained from him may be 'avoided.^ After the dur- 
 ess is removed, the party may ratify his contract.* 
 
 § 73. Duress iy threat is divided into four classes : 1st, for fear of 
 loss of life ; 2d, loss of member ; 3d, of mayhem ; and 4th, of unlaw- 
 ful imprisonment. A contract obtained under the influence of fear, 
 excited by such a threat, is void, whatever may be the consideration.^ 
 So terrifying a woman by threats of arresting her husband, is such a 
 duress _as will avoid a transfer of her property thus obtained.* But 
 the rule has never been extended to threats of injury to another, or 
 to one's property, nor to a mere battery, the law holding that such a 
 threat need not overcome a prudent man, inasmuch as an adequate 
 remedy can be obtained for such an injury.' But there may be an 
 actual duress of property as well as of the person, and that is where a 
 person, who has the property of another or to which he is entitled, in his 
 possession, exacts, and the owner pays a sum which ought not to be paid 
 as a condition for the delivery up of the property. In such cases the 
 payment is void, and may be recovered back from the wrong doer.^ 
 
 § 74. The right of avoiding a contract for duress is, like infancy, a 
 personal privilege, and can only be asserted by the person who was 
 influenced by the duress to enter into it, and by a surety who united 
 with him in its execution.' No one can avoid his contract for duress 
 occasioned by the imprisonment or tlireat of injury to another per- 
 son, unless it be his wife.^ 
 
 § 75. It was formerly held that the defense of duress could only be 
 maintained where the contract was made with the person who caused 
 the duress, and that where one was by duress compelled to make a 
 deed or bond to a stranger to the violence or threat, the instrument 
 would bB valid. The more modern doctrine however, is, that the 
 deed or instrument might be avoided, whether the person receiving 
 it were, or were not, a party to the duress.' 
 
 § 76. Every description of contract is vitiated by the fraud or deceit 
 accompanied by damage of one of th6 parties, and contracts so vitia- 
 ted may be avoided by the party imposed upon." The basis of all 
 
 ' Bac. Ab. tit. Duress, 6 Mass. 606. 36 • 3 Kern. 99. Parsons on Con. 331, 333. 
 
 N. Y. 365. 36 Barb. 133. Story on Con. ' 3 N. Y. Ch. Sent. 30. 86 N. Y. 365 ; 
 
 g§ 397, &c. 16 111. 93. 30 Ind. 97. 3 but see 16 HI. 358, as to a surety. 
 
 Wis. 361. 16 id. 80. 3 Nevada 189. ' Story on Con. § 401. And see note (3) 
 
 '' 7 Ohio N. S. 399. Par. on Con. 333. on that page, as to tbe duress of a father 
 
 15 Iowa, 380. or child. Also Chitty on Con. 193. 
 
 » 5 Hill, 154 1 Daly 71. 1 Redf. N. » Story on Con. § 400. Shep. Touch. 
 
 Y. 477. 61. JacL. Diet. "Duress." 
 
 - 36 N. Y. ?. » Story on Con. § 495. 6 John. 110 
 
 " CU. on Con. 193. Story on do. § 899. 83 K. Y. 375. 16 Wis. 485. 
 
VOID FOE FEAUD OE DECEIT. 37 
 
 dealings is good faith, and eacli party contracting has a right to insist 
 that the other shall neither state to him any falsehood in relation to 
 the subject matter of it, nor conceal any secret defect, with a view to 
 obtain an advantage.^ Accordingly, if there is such a misrepresen- 
 tation or concealment in regard to a sale, as amounts to a fraud, 
 the vendor or vendee may refuse to deliver or accept the article sold 
 or purchased ; ' or, if he discovers the fraud after delivery, the 
 vendee may return the article, regard the sale void, and recover the 
 price pajd, in an action against the vendor.' If the party deceived 
 was lead by the deceit to agree to run his own risk as to the quality 
 of the article, or other subject of the contract, the fraud or deceit 
 practiced wiU avoid it.* Instead of returning the property, if the 
 vendee is sued for its price, he may set up the injury in defense, and 
 if the damage equals the price, defeat the action ; if it is less, the 
 amount goes in reduction of the plaintiff's claim.' 
 
 [§ T6a.] Fraud is never presumed, but must be proved,^ and that 
 either by direct or circumstantial proof, as in other cases, so that it 
 be clearly proved.' As bearing on the question, it is proper to prove 
 that the party charged with the fraud was engaged in other similar 
 ones, at or about the same time, and either before , or afterwards, but 
 so connected in time and similar in their methods that the same 
 motive may reasonably be imputed to them all.' Under this rule, in 
 a case of alleged fraudulent concealment of a vendee's pecuniary 
 circumstances, it was held to be proper to show cotemporaneous 
 fraudulent affirmations of his solvency.' The question whether the 
 evidence tends to establish fraud or not is one of law for the court to 
 decide j^" whether or not that evidence, when given, proves the fraud 
 or not, is one for the jury.^' 
 
 § 77. If the fraud or deceit were committed by the agent of the 
 contracting party, the latter will be bound by it in the same manner 
 as if he committed it himself.^ And this rule applies as well to the 
 agents of corporations as to those of individuals.*' 
 
 ' 40 Barb. 513. 13 Min. 109. ' 2 Cow. & Hill's Notes, 301. 8 Barb. 
 
 ' 30 N. T. 655. 588. 3 Cal. 336. 8 id. 87. Id. 307. 
 
 » 33 Wend. 850. Also 3 Hill. 388. « 1 Hill, 311. 18N.Y.588. 38 id. 486. 
 
 * 8 Camp. 154. 6 JoTin. 110. 7 Wend. " 18 N. Y. 588. 
 380, 387. " 36 Barb. 137. 
 
 ' 33 Ind. 51. " 31 N. Y. 457. 36 Barb. 137, 3 Cal, 
 
 • l'§ John. 408. See 33 Barb. 550, 561. 107. 35 id. 303. 
 
 6 Ind. 176. 5 Wis. 79. 13 Iowa, 318. 33 " Story on Con. 496. 21 N. Y. 338. 
 
 id. 306. 34 id. 179. 37 111. 426. 43 Mo. " 34 N. Y. 30. 
 
 551. 
 
38 GF CONTEACTS. 
 
 § ^8. The concealment of any fact which the contractor is bound 
 to communicate, is of itself a fraud.* So is any misrepresentation 
 by which a party is misled, and this may be by acts or signs, or even 
 by silence, as well as wotds.* And where a material misrepresenta- 
 tion is made, although inadvertently, or through mistake or ignorance, 
 it is considered a constructive fraud, because its effect was to deceive ; 
 as where one, by himself or his agent, makes such misrepresentation, 
 not knowing at the time whether they are true or false, and even 
 when he supposed they were true.^ The misrepresentation or con- 
 cealment must be in regard not to the law, but to a material fact 
 operating as an inducement to the contract.* If credit is given to a 
 person on the representation of anotheif that he is solvent, when he 
 is not so to the knowledge of the one making the representation, 
 this is a fraud, for wiich he is liable for the value of the goods sold.' 
 In regard to the vendee lumself, the rule is that, if he is insolvent, 
 but represents himself to be otherwise, he is guilty of a fraud ;* if he 
 is insolvent, and conceals that fact with the preconceived intent not 
 to pay for the goods, that is also a fraud ;' if he is insolvent, and 
 does not disclose his situation, but is yet in business, and intends to 
 continue ^it, and pay for his purchase^ he is not guilty of fraud, for 
 the reason that a mere omission to disclose insolvency, where no 
 inquiries are made, and the vendee uses no artifice to mislead the 
 vendor, is not a friaud.* But, if the purchaser has committed some 
 open and notorious act of insolvency, like making an assignment and 
 breaking up his business, then his concealment of these facts will be 
 a fraud.' 
 
 § 79. "Within the principle of the rule laid down in the last section, 
 a vendor in negotiating a sale of property, must not intentionally 
 conceal any secret defect in it known to him*" nor employ any artifice 
 to disguise it. He is not, however, bound to enumerate all the 
 defects of the article to be sold. The vendee must rely upon his 
 
 ' Story on Con. §§ 516, &c. 23 Barb. ' 1 Hill, 311. 20 Barb. 547. 33 Cal. 
 
 652. 8, Cal. 87. 630. 39 111. 195. 
 
 ' 1 Starkie, 853. 30 N. Y. 655. 31 id. ' 1 Hill, 303, 34 N. T. 139. 41 lU. 
 
 518,539. eind.183. 8 Cal. 87. 11 Iowa, 193. i 
 
 333. » 18 N. t. 395. 33 id. 364. 30 Barb. 
 
 ' 31 N. Y. 338. 36 Barb. 378. 40 id. 353. 31 id. 585. 33 Cal. 620. 39 HI. 
 
 256. 37 Ind. 4. 14 Micb. 109. 43 Mo. 195. 33 Wis. 384. 
 
 18- ^ » 30 Barb. 253. Also 18 N. Y. 395. 
 
 * Story on Con. §§ 507, 516. 9 Ind. "Peake, 115. 3 Kent, 483, &c. 1 Pars. 
 
 488. or Cal. 655. 33 111. 338. on Con. 461. 42 Barb. 38. 53 id. 435. 
 
 ' as Barb. 466. 13 Minn. 109. 
 
OF SALE. 39 
 
 own judgment, or make enquiries, or exact a warranty, or purcliase 
 at his own risk ; if he is negligent in making the purchase, it should 
 not therefore be avoided. The law simply protects him against 
 unfairness and fraud, and will only relieve him from the contract 
 when he was deceived and actually misled.^ If he at the time knew 
 the statements or representations made to him to be false, he could 
 not have been misled by them, and the contract would be valid, not- 
 withstanding their falsity.* The mere recommending of the vendor*s 
 property, or exalting its fair value, is not a fraud, although there was 
 exaggeration.® 
 
 § 80. "Where one purchased goods on credit obtained by fraudulent 
 representations, the vendor (if the representations were made to him, 
 or were made to be communicated to and influence him, and not 
 otherwise),* may reclaim his goods from the vendee or any one to 
 whom he has transferred them, except a purchaser in good faith and 
 for value,^ or he may recover their value in an action brought imme- 
 diately and without regard to the credit agreed to be given.* If, 
 however, he have received the fraudulent purchaser's note, he must 
 return or offer to return it or assign any judgment he has obtained 
 thereon''' (which may be delayed till the trial, if a reasonable excuse 
 is given for not making an earlier surrender^), the general rule being 
 that whoever would rescind an agreement on the ground of fraud, 
 must restore the other party to the situation he was in before the 
 contract was made, unless the one committing the fraud has made 
 this impossible, in which ease the restoration must be as near as may 
 be.' Where an infant, by falsely representing . that he was of age, 
 obtained goods upon credit and then avoided, paying for them oh the 
 plea of infancy, an action for the goods was maintained on the 
 ground of the fraud.*" 
 
 § 81. The most common contracts in relation to chattels are, 1, 
 those relating to sale or exchange ; 2, those relating to bailment ; and 3, 
 those from which a debt arises. They will be considered in this order. 
 
 § 82. (1.) Sale, or exchange, is a transmutation of property from 
 
 23 N. T. 
 
 38 Barb. 
 
 S4Ina. 
 
 '2 Kent, 482, &c. 1 Pars. 
 
 on Con. 
 
 » 6 John. 110. 3 id. 285. 
 
 461. Story on Gon. §§ 517, 842, 
 
 , See 28 
 
 '7 John. 324 2 Denlo, 136. 
 
 ind. 135. 
 
 
 364. 14 Barb. 594. 
 
 = Story on Con. § 508. 
 
 
 » 23 N. Y. 364. 28 id. 486. 
 
 ' 36 lU. 109. 
 
 
 375. Infra, §233. i ' 
 
 * 37 Barb. 544. 
 
 
 • 1 Denio, 69. 16 Wis. 499. 
 
 ' 13 Wend. 570. 20 id. 167. 
 
 Id. 267. 
 
 332. 25 id. 128. 
 
 3 Barb. Ch. 451. 83 N. T. 375. 
 
 14 Barb.. 
 
 " 15 Mass. 359. 
 
 694. 
 
 
 
40 OF CONTEAOTS. 
 
 one to another in consideration of some price or recompense. If it be' 
 the giving of goods for goods, it is an eaichomgei if of goods for 
 money or a promise to pay money, a sale. In both instances, the 
 seller is called the vendor, and the buyer the vendee}- "While the 
 title remains in the vendor, or until the sale is perfected, the vendor 
 may dispose of the goods at any time, and in any manner. A memo- 
 randum stating that the plaintiff had sold to the defendants a 
 quantity of pig iron of a certain quality, then on ship at sea, is not 
 a sal^, but an executory agreement to sell, which was at end when 
 the. iron arrived and proved to be of an inferior quality.^ 
 
 § 83. If one agrees for goods at a certain price, he acquires no 
 title to them until he has performed his part of the agreement. If 
 the price is agreed upon and no terms of payment specified, the 
 vendee must pay it in cash, to entitle himself to take them. If the 
 terms of paym,ent are specified, as to give an endorsed note, he must 
 comply with them by giving such npte.^ If a note is tendered and 
 the seller makes no objection to it, it is deemed sufficient ; if he 
 objects, the vendee must show that it was sufficient.* But if the 
 vendor offers to sell his beast at fifty dollars, and the vendee says he 
 wiU give it, the bargain is struck, and neither party can avoid it if 
 the other mak^s immediate tender of performance on his part. But 
 if neither the money be paid or the goods delivered, or tender be 
 made by either party, no contract has been made, and the vendor may 
 dispose of the goods as he pleases. 
 
 § 84. Where goods are sold upon credit, and nothing is agreed 
 upon as to the time of delivery, the vendee is immediately entitled 
 to the possession, and the right of possession and title of the ;^ro- 
 perty and risk of accident vest at once in him.^ But where, by the 
 contract of sale, any act remains to be done by the vendor, as if he 
 is to weigh or measure or count them, until this be done the title 
 does not pass.* Where part is delivered and the residue ik not, the 
 title! of only such portion as is delivered passes ; '' and where one 
 contracts for a chattel he is to manufacture, and receives his pay in 
 advance, the title does not pass to the buyer until delivery.* 
 
 ' See infra^ §§ 221, &c. " 5 Taunt. 617. 7 Wend. 404. 3 Seld. 
 
 » 4 Corns. 123. 16 N. T. 595. 357. 4 id. 291. 19 Barb. 417. 34 id. 454. 
 
 ' 3 Oowen, 110. 3 Hall, 345. 4 Baib. 9 Min. 142. 31 Iowa, 508. But see 34 HI. 
 
 564. 35 id. 474. 17 Wis. 477. 15 Iowa, 193. 
 
 377. 36 Mo. 479. ' 6 East. 614. 6 Cowcn, 350. 
 
 * 30 Wend. 485. » 15 Petersd. 193, note. 1 Kern. 35. Ajid 
 
 • Stoiy on Con., § 803. 2 Kent 492. 5 see 36 Barb. 473. 
 Denio, 879. 4Ind. 189. 9 Min. 142. 
 
OF SALE STATUTE OF FEAUDS. 41 
 
 But, it is not necessary to separate a specified quantity sold from 
 the whole mass, in order to pass the title, when the intention that it 
 shall pass without it is clearly manifested ;^ if the agreiement is other- 
 wise complete, and the property identified, a stipulation of the seller 
 to yet deliver the property at a particular place will not prevent the 
 title from passing.^ So the sale is complete if the property is deli- 
 ' vered, though it is yet to be weighed.* 
 
 § 85. As soon as the bargain is struck, the title of the goods is 
 transferred to the vendee, and the right to receive the price to the 
 vendor. But the vendor has a lien upon them for the price until it 
 is paid (unless the sale is upon credit), and can retain the goods until 
 the vendee pays the price.* If a part has been delivered, the lien 
 remains on the remaining portion ; and so if the price has been paid, 
 in part, the lien remains on every part of the goods undelivered, 
 being only reduced in amount.^ If the vendee tenders the price to 
 the vendor, and it is refused, then the lien is gone, and the goods 
 may be taken, or an action brought for their value.^ 
 
 § 86. When the title to property has passed, by a sale to the ven- 
 dee, but the property, or any of it, is undelivered, if it is afterwards 
 destroyed or injured, while in the vendor's custody, without his 
 fault, he is still entitled to and may recover the price of the same of 
 the vendee, who must bear all loss.'' 
 
 § 8T. Where the sale is completed and the vendor retains the cus- 
 tody of the goods, he is considered a hadlee or trustee holding it for 
 the use of the vendee, and is responsible for injury to it by ordinary 
 neglect, iov the reason that both parties are benefited by the bail- 
 ment and the contract out of ;which it arose. 
 
 § 88. By the statute of New York, contracts for the sale of any 
 goods, chattels or things in action, for the price of fifty dollars or 
 more, are void unless : 
 
 1. A note or memorandum of such contract be made in writing 
 and be subscribed by the parties to be charged thereby ; or 
 
 2. Unless the buyer shall accept and receive part of such goods, 
 or the evidences or some of them, of such things in action ; or 
 
 3. Unless the buyer shall, at the time, pay some part of the pur- 
 chase money .^ 
 
 M9N.T.330. 43 Barb. 573. 6 Wis. 490. ' Story on Cob. §§ 795, &c. 
 
 ' 35 N. Y. 530. 27 lU. 438. See 17 ' 3 Bl. Com. 448. 
 Iowa, 583. ■ ' 3 Bl. Com. 448, 449. 3 Jolui. ,13. 
 
 » 41 111. 400. » 3 R. 8. 135, § 3. 3 id. (Banks' Sth ed.) 
 
 '3Bl.Com.448. 30N.T.549. 9Mm. 331. 
 143. 
 
42 
 
 OF OONTEACTS. 
 
 § 89. Contracts to deliver at a future day a tMng not then existing, 
 but wiiich is to be made, are held not within the rule laid down in 
 the preceding section, but are contracts for work and labor.^ But 
 where the thing sold exists in mUdo, and is yet to have something done 
 to it, either to finish it, or make it ready for delivery, in these and simi-' 
 lar cases, it is sometimes a question of doubt whether the agreement 
 is or not within the statute. Thus, where one agreed to sell his wheat, 
 to be delivered after he had threshed a part of it which was not ready, 
 it was held the contract was void because not in writing.* But a subse- 
 quent case ^ holds that a contract to deliver two thousand barrels of 
 flour to be ground out of wheat that had been bargained for, but not 
 received by the seller, was not within this statute. And so, in 
 another case,* where a mechanic agreed to furnish the materials and 
 do the carpenter work and turning for several buildings, this was 
 called a contract, not for a sale, but for work and labor. The same 
 rule was applied where a marble cutter agreed to sell a monument 
 already worked into the general form desired, all that was yet to be 
 done being to polish it properly and engrave the necessary inscrip- 
 tions upon it.^ These different cases do not entirely agree in princi- 
 ple with each other. Perhaps the rule that will finally be established 
 is that suggested in 19 Barbour, just referred to, and that is: 
 " Whether the work and labor required to prepare the subject mat- 
 ter of the contract for delivery is to be done for the vendor himseK 
 or the vendee ? In the former case, the contract is really a coijtract 
 of sale, while in the latter it is a contract of hiring." A contract 
 for the sale and delivery of standing trees is not a contract for work 
 and labor, so as to take the transaction out of this statute/ 
 
 [§ 89a.] If the goods sold are worth over fifty dollars, they are 
 within the statute, although the price is not definitely agreed upon;' 
 but it must appear plainly that the value was above the statute limit.* 
 A sale of a judgment for a sum exceeding fifty dollars is prohibited 
 by this section ; ' but not an agreement to turn out a note in pay- 
 ment of a debt," or to pay for goods already bought." Growing hops 
 are personal property, within the statute." Hop roots, when rooted 
 in the gi-ound, are real estate ; yet, a parol agreement to deliver a 
 
 ' 18 Jolin. 58. 28 Barb. 138. 28 id. 38. ' 41 Barb. 610, 612. 
 
 " 23 Wend. 270. ° 18 John. 58. 
 
 ' 10 Barb. 406. Same principle, 2 Saiid. ' 1 Barb. B'i'D, 387. 
 
 239. " 18 Barb. 320. 
 
 « 19 Barb. 455. " 32 Barb. 630. 
 
 » 33 Barb. 202. " 36 Barb. 415. 
 • 4 Keyes, 180. 
 
OF SALE STATUTE OF FEAUDS. 43 
 
 quantity of them at a future time is valid, it being really an agi-ee- 
 ment for the sale of merchandise.^ The rule is different as to con- 
 tracts for the sale and delivery of standing trees, which are not goods 
 or chattels, but are real estate.^ 
 
 § 90. The note or memorandum of the contract must state its 
 terms with reasonable certainty, so that it may be understood from 
 the wi'iting itselfj or be capable of being made so by reference to 
 something else.^ The contract cannot rest partly in writing and 
 partly by parol.* It wiU be good if made by an agent of either 
 party, or by a person^ as a broker, authorized by both parties ; and 
 when so subscribed by the broker or other agent, it may be in his 
 own name, though the name or existence of a principal does not 
 appear in the instrument.^ It is not sufficient that the names of the 
 parties are in the body of the memorandum. They must be signed 
 at the end of it.* Other sections of the statute of frauds require 
 that the memorandum be signed " by the party ;" the one under con- 
 sideration, " by the parties to be charged therewith." Under this, it 
 has been uncertain whether a subscription by the vendor was suffi- 
 cient. In one case, in the court of errors of ISTew York, it was 
 assumed that it was,'' and previous cases had been to the same effect ; 
 one of them holding it enough for the one who had to " perform the 
 principal part of the contract," such as to deliver the goods, to sign 
 it ; ^ this rule has been criticised by our higher courts,' and it is finally 
 laid down, by good authority, that the memorandum must be signed 
 by both parties, where there are obligations yet to be discharged by 
 them both, as to deliver, pay, &c}'^ And, as it is difficult to conceive 
 a case, where this statute applies, in which the agreement is not 
 executory by both parties, it may be laid down as the rule, till 
 otherwise held by the appellate courts, that all memoranda, under 
 this section, must be signed by all the parties thereto, or their 
 agents. In Minnesota, under a similar statute, it is ,held sufficient 
 if it is signed by the party only against whom it is sought to be 
 enforced." 
 
 '53Baib. 483. • 36 Wend. 341. 2Seia.9. SeeSSInd. 
 
 » 4 Keyes, 180. 50 Barb. 303. 868. 
 « 3 John. 399. 13 id. 397. 4 Kern. 584. ' 36 Wend. 341, 349. 
 39 Barb. 630. ' 3 Caines, 117. Also 3 Wend. 113. 
 
 * 3 John. 399. 35 N. Y. 153. 3 Bosw. " 34 N. Y. 57, 59. 
 
 373. 
 
 '» 3 Robertson, 333. S. 0. 30 How. Pr. 
 
 » 36 Wend. 341. 4 Kern. 584 24]Sr.Y. B. 435. Also 4 Robertson, 319. 
 57 3 R. S. 136, § 8. 3 id. (Banks' 5th " 13 Minn. 191. See, also, 36 Mo. 534. 
 ed.)333.' ' ' 25 Iowa, 389. 
 
44: OF C0NTEACT8. 
 
 § 91. An auctioneer, after knocking down the goods, is an agent for 
 both seller and buyer, the statute providing that an entry in his sale 
 book of the nature and price of the property sold, the terms of the 
 sale, the name of the purchaser and the name of the person upon 
 whose account the ^le is made, shall be deemed the note of the con- 
 tract required.^ But the entry must be made at the time and place 
 of sale. It is not enough that a minute be made, at the time, of the 
 sums bid and the name of the bidder, although the residue of the 
 entry be made shortly after, at another place.^ 
 
 § 92. The acceptance or receipt of part of the goods by the pur- 
 chaser, or the delivery to him, must be by virtue of the contract, and 
 with the vendor's consent, and may be either actual or constructive, 
 and inferred from circumstances ; * as where the vendor, after receiv- 
 ing the vendee's note for the purchase money, points out the goods 
 as the vendor's property ; * or where he gives the purchaser an order 
 on a third person with whom the goods are, for their delivery;' or 
 delivers to him the key of the house where they are, or the receipt of 
 the person with whom they are stored ; ' or where he delivers them 
 to a carrier to transport to the purchaser ; ' or they are made for a 
 person and marked with his name, and afterwards pointed out to him 
 by the maker, who tells him they are his and marked for him, and 
 the vendee accepts them ; * where a debtor makes a schedule of some 
 marble owned by him, but in the possession of others and delivers it 
 to his creditor, and the two then go to the places where it is stored, 
 at one of which the creditor writes his name on the marble with a 
 pencil and changes it place, and at another straightens up some of it 
 that has fallen down, and makes arrangements for its continued stor- 
 age, agreeing with tbe debtor to sell it and apply it on the debt, it is 
 held there was a sufficient delivery so far as the statute was con- 
 cerned.' But there must be something more than words ; there must 
 be some act of the parties amounting to a transfer and acceptance of 
 the possession, with the intent to deliver and accept the same.^" 
 
 § 93. The delivery and acceptance required by the statute need not 
 be at the time of the sale. If they occur afterwards, the contract is 
 
 ' 3 R. S. 185, § 4. 3 id. (Banks' 5tli ed.) • 5 John. 335. 6 Seld. 285. 
 
 222. ' 14 Wend. 546. 2 HiU, 137. Sid. 141. 
 
 " 13 Wend. 548. 1 Duer. 133 ; tint see 22 N. T, 368. 2 Abbott, 282. 4 Wis. 154. 
 
 3 id. 395,403. 4 Kern. 584, 598. .' 82 Barb. 630. 
 
 ' 1 Denio, 48, 53. See 39 N. Y. 375. " 43 Barb. 70. 
 
 15 Iowa, 458. » 1 Comstock, 261. 3 Keyes, 409. And 
 
 * 2 Gaines, 88. See 15 Wis. 144. see 40 Barb. 98. 31 How. Pr. K. 4. 
 
 ' 3 Gaines, 183. 37 111. 370. 
 
OF SALE STATtTTE OF FEATJDS. 45 
 
 rendered valid.^ A delivery only, however, is not sufficient. There 
 must be an acceptance by the purchaser, or his authorized agent.' 
 But the statute only requires the acceptance and receipt of a part of 
 the goods, and, accordingly where the contract is divisible, the accept- 
 ance of fourteen hundred bushels of barley malt out of a purchase of 
 five thousand bushels, was -held sufficient, and an action was sus- 
 tained for the non-delivery of the balance.' 
 
 § 94:. A delivery in certain cases may be symbolical, as the delivery 
 of a quantity of grain in a warehouse by the giving the vendee the 
 key,* or an order on a warehouseman, with whom the goods sold are 
 deposited ; ' provided the order gives the vendor the legal control of 
 the property.* "Where one bought a piece of land with a quantity 
 of ponderous articles upon it, the taking possession of the land was 
 held sufficient to warrant the conclusion that the articles were 
 delivered.'' So the pointing out a quantity of logs afloat in a boom.* 
 The selection of goods in a merchant's store by a customer who 
 marked them and laid them aside without paying for them while he 
 went for a porter to carry them away, was held no delivery, and the 
 title of the goods remained unchanged.^ But this rule has not been 
 strictly adhered to, and such circumstances as marking goods, or 
 similar ones, are since held to be evidence of acceptance sufficient to 
 go to the jury.'" 
 
 § 95. In all of these cases, either an aclmal, or a symbolical, or a 
 construotvoe delivery must be made ; the' law only requires such a 
 delivery as is consistent with the nature and situation of the thing 
 sold." It is for this reason that, as we have seen, ponderous and bulky 
 or cumbrous articles may have this constructive delivery, or those 
 which, at the time, are not present ; in which last case giving an 
 order for them may be a sufficient delivery, or, as in a late case, 
 giving a schedule of them to the purchaser, who arranges with those 
 having the property in charge to keep it for him.^ 
 
 § 96. An actual delivery is in some cases iaferred by the courts. 
 When the purchaser deals with the property as if it were in his own 
 possession, and sells a part of it, the jury may infer a delivery cf the 
 
 ' 1 Seld, 537. 33 Barb. 434. 31 How. ' 13 John. 394. 
 
 Pr. R 4. ' 13 Mass. 300. 
 
 = 6 Wend. 397. Anth. N. P. 164. 3 " 1 DalK 171. Also 3 Bam. & C. 37. 
 
 Keyes, 409. " 19 Barb. 416 and refs. 3 Kent, 500, 
 
 = 1 Seld. 537. 3 Robertson, 173. &c. gives other cases of symbolical 
 
 * 5 John. 335. delivery. 
 
 > 3 Oaines, 183. 37111.370. " 3 Sand. 330. 44 El. 141. 
 
 •3BOSW.171. » 43 Barb. 70. 
 
46 OB* CONTBACTS. 
 
 wliole f- as where the purchaser of a yoke of oxen, without any writ^ 
 ing, or payment, or acceptance at the time, afj;erwards.eame and took 
 them away, it was held that there was a delivery, and he was charge- 
 able for the price.' In another ease, where one bought a pair of 
 horses, and requested the vendor to keep them for him in his stable, 
 it was held that the vendor's taking charge of the horses to keep at 
 the purchaser's request implied a previous delivery to him.* That 
 case has since been questioned as carrying the doctrine of construc- 
 tive delivery to the utmost verge of safety ; and later cases seem to 
 have resumed a stricter doctrine, and qualified the influence to be 
 drawn from the acts of the buyer.* 
 
 § 97. There is a class of cases where, although the goods have 
 actually passed into the ha~nds of the purchaser, the law infers no 
 compliance with the statute ; as where he obtains possession of a bill 
 of lading without the sellers' consent f or where goods are purchased 
 for cash on delivery, and, by a usage of trade, the cash is to be paid 
 within a certain number of days; in such cases the delivery is a 
 qualified one only.' So, where a manufacturer made and placed a 
 boiler and other machinery in a boat, under a contract by which he 
 was to be paid a certain price, a portion of which was to be secured 
 by a personal mortgage, and the vendee clandestinely went off with 
 the boat to Canada, refusing to pay for the machinery or execute the 
 mortgage, it was held that there had been no unconditional or abso- 
 lute delivery to the vendee, so that he had acquired title.'' But, in 
 such cases, the title does pass, and the delivery is perfect, if tender 
 of payment, according to the agreement, is made by the purchaser, 
 although it is not accepted by the seller.^ Other cases, where the 
 delivery is not perfect, as given in the books, are where goods are 
 purchased at auction for cash, and the purchaser receives the pro- 
 perty without paying for it ; or where I purchase a boat load of • 
 lumber or wheat, to be paid for on delivery, and it is placed in my 
 warehouse, and I then refuse to pay for it. In these eases, as in 
 other similar ones, the delivery is said ' to be conditional, and the 
 title of the property is not changed.' 
 
 § 98. The statute applies as well to contracts to be performed at 
 a future day, as those whei-e the" sale is intended to take effect at 
 
 r 
 
 '1 East. 193. 7Cowen,356. ' 35 Barb. 474. 38 id. 393. 
 
 " 11 John. 383. Supra, § 93, note (1). ' 19 Barb. 366. 
 
 ' 1 Taunt. 458. ' 16 Barb. 377. 
 
 « 3 Kent, 503. " Infra, §§ 337, &o. 
 ' 30 How. Pr. R. 313. 
 
OF BAILMENT. 47 
 
 once ; as to deliver apples or other articles, if the value exceeds fifty- 
 dollars.^ The payment of a portion of the purchase money on a sale, 
 it will be seen, is a compliance with the statute, and it seems that 
 even a shilling is sufficient. Such payment is sometimes called 
 earnest money. The delivery and acceptance of the goods, or some 
 part of them, as we have seen, may be at a subsequent time, but in 
 regard to the purchase money, that is required by the statute to be 
 paid at the time of the making of the agreement, and the decisions 
 are to that effect.^ But if a payment is made and accepted at a sub- 
 sequent day, the sale is valid, it being considered in such a case as 
 not having been made until such payment and acceptance, and it 
 dates from that time, the same as if a new and valid bargain was 
 then made.^ The payment may be made by applying the amount 
 on a prior indebtedness of the seller to the purchaser;* but in order 
 to make it eflfectual, the application must be then and actually made, 
 so as to bind the parties by their acts ; a mere agreement does not 
 answer.' Entering the transaction upon the blank leaf of a book (not a 
 ledger or day book) is not enough f nor one in a memorandum, which 
 is not an account book.' The giving of the purchaser's promissory 
 note is not sufficient payment to take the case out of the statute.' 
 
 § 99. II. A bailment is a delivery of a thing to another in trust, 
 for some special object or purpose, and upon a contract, express or 
 implied, to conform to the object or purpose of the trust.^ The one 
 who delivers the thing is called the bailor y the one who receives it 
 the bailee. / 
 
 [§ 99a.] It is sometimes doubtful whether a given case is one of 
 sale or bailment. If, in a lease of lands, with cows or other stock 
 accompanying it, it is provided that an equal number shall be 
 returned, or stock of equal value, or there are similar provisions, the 
 stock becomes the property of the tenant ; but if the same property 
 is to be returned, it is a bailment '^ selling ale in barrels, the barrels 
 to be returned, or, if not, to be accounted for, is a bailment of the 
 barrels ;" wheat taken to be ground, the miller ,to return a specified 
 quantity of flour, but not to keep the wheat separate, is a case of 
 
 ■ 10 John. 364 18 id. 58. 5 Wend. . ' 44 Barb. 96. 
 
 139. -- ■ '18 Abbott, 393. S. C. 28 How. Pr. R 
 
 = 33N.T.519. 33 Barb. 548. 40 id. 98. 463. 
 
 = 39 2Sr. T. 375. 53 Barb. 483. ' Story on Bail. § 3. 
 
 * 5 Hill, 200. '° 13 John. 358. 7 Cow. 753. 10 Ind. 
 ' 33 N. Y. 519. 8Keyes,493. 3 Tran- 325.. 
 
 script, 363. " 18 N. T. 363. 
 
 • 33 N. T. 519. 
 
48 or CONTEACTS. 
 
 sale ; ^ but when wheat is delivered, the miller manufacturing it into 
 flour, deliyering so much flour for so much wheat, the owner of the 
 wheat paying for the barrels, and also paying the miller so much per 
 barrel, it is a bailment only ; ^ and so is an agreement by which one 
 person furnishes hides and another is to tan them, the expenses and 
 profits-to be divided between the parties in a certain manner agreed 
 upon between them;' a contract to deliver twenty sheep in four 
 years in exchange for ten delivered now is a sale and not a bailment.* 
 § 100. There are five classes of bailments : 
 
 1. Deposit, where the goods are delivered to the bailee to be 
 returned to the bailor on demand and without recompense ; as where 
 on a journey the snow leaves me, and my friend gratuitously receives 
 my sleigh to keep until I call for it. In such a case no action against 
 the bailee will lie until after a demand of the property bailed, and 
 he refuses to deliver it.^ 
 
 2. Mandate, where the goods are received by the bailee to carry 
 to some place, or to perform some act to them without reward ; as 
 where my neighbor gratuitously takes my trunk to carry from my 
 house to town for me, or takes my^orse to train him to the saddle 
 or harness. 
 
 3. A loan for use, is where an article is delivered to the bailee to 
 be used by him without paying for the use ; as the loan of a horse 
 to ride, or a gun to go shooting with. 
 
 4. A fledge orjpawn, is where goods are delivered by a debtor to 
 his creditor, to be retained imtil his debt be discharged. It differs 
 from a mortgage. In a mortgage the title of the property mortgaged 
 passes from the mortgagor to the mortgagee, subject to be defeated 
 if the condition is performed. In a pledge the title remains in the 
 bailor, and the bailee has only a special property. An actual 
 delivery is necessary to render a pledge valid.* 
 
 6. LettAng to hire, is~ a bailment where compensation is to be given 
 for the use of the thing bailed, or for labor or services about it. 
 This species of bailment is of three kinds : 1. The hiring a thing 
 for use, by which the bailee for a compensation acquires its tempo- 
 rary use, as where I hire my neighbor's oxen to use for a day; 
 2. The delivery of a thing to the bailee to have some service pea-- 
 formed by him upon or in relation to it ; as where I leave cloth with 
 
 ' 21 Wend. 83. 3 Corns. 153. 13 Ind. * 44 Barb. 163. 
 
 253. 10 Iowa, 565. '9101111.361. 23 Barb. 314. 
 
 » 4 Comstock, 76, 8. P. 3 Seld. 433. ' Story on BaU. § 387. Infra, §§ 616, 
 
 ■ 31 Barb. 93. 617. 
 
OF BAILMENT. 49 
 
 a tailor to be made into a garment for me, or my wheat witL. a ware- 
 honseman to be sold for me, or my trunk or my horse with a tavern- 
 keeper, in whose house I am a guest ; 3. The delivery of goods to 
 be transported by the bailee for a reward. 
 
 § 101. In determining the responsibility of bailees for the viola- 
 tion of the contract of bailment, a distinction is made betweefe, 
 1, slight negleot ; 2, ordina/ry neglect; and Z, gross neglect. Slight 
 neglect is the want of such diligfence as very circumspect and cautious 
 persons use in the care of their own goods and chattels, and which is 
 called extraordinary care. Ordinary neglect is the want of ordinary 
 diligence, or the omission of the care which every man of common 
 prudence takes of his own concerns called ordinary care. Gross 
 neglect is the want of even slight diligence or of such care as every 
 man of common sense, however inattentive, takes of his own property, 
 and is esteemed in law a violation of good faith. 
 
 § 102. A bailee who derives no benefit from the bailment, as in 
 case of a deposit or mandate, is responsible only for gross neglect.* 
 One who alone receives benefit from the bailment, as in loans for 
 use by the bailee without compensation, is responsible for slight 
 neglect.^ Where the bailment is beneficial to both parties, as in case 
 of pledging^ or letting to hire, or where creditors receive from their 
 debtor the note of a third person^for collection,^ the bailee is answera- 
 ble for ordinary neglect, unless where there is a special agreement in 
 relation to it, which is permitted with some exceptions. All bailees 
 are answerable for actual frauds, even though the contrary be stipu- 
 lated. It is well settled that they may contract from exemption even 
 from gross negligence.^ The finder of property is a depositary, and 
 liable accordingly.^ That a bailee of the use of a horse for which 
 he makes no compensation, is at expense for his keep, does not make 
 it any the less a gratuitous bailment.' 
 
 § 103. Bailees 'are not answerable for a loss occasioned by inevita 
 ble accident or irresistible force, except where it is provided for by 
 special agreement. Inevitable accidents are such as are produced by 
 physical causes which are irresistible ; as a loss by lightning or storm, 
 the perils of the sea, inundations, earthquakes, or by sudden death 
 or illness.* Irresistible force is such an interposition of human 
 agency as from its nature and power is uncontrollable; as losses 
 
 ' 5 Ind. 131. 8 id. 315. " 3 Comstock, 304. 4 Beld, 375. 
 
 = 37 111. 350. ° 1 Clarke, 135. 
 
 ' 6 Cal. 643. ' 37 111. 350. 
 
 * 6 Seld. 261. 36 Barb. 81. ' 7 Cowen, 499. 
 
 1 
 
50 
 
 OF CONTEACTS. 
 
 occasioned by the inroads of a hpstile army. Eobbery by force ia 
 irresistible ; but a loss by priyate stealth is presumptive evidence of 
 ordinary neglect.^ 
 
 § 104. Upon the several principles given in the last three sections, 
 the following rules have been deduced : , . 
 
 1. A depositary is responsible only for gross neglect, or in other 
 words for a violation of good faith. 
 
 2. A depositary, whose character is known to his depositor, shall 
 not answer for mere neglect if he take no better care of his pwn 
 goods, and they also be spoiled or destroyed.' 
 
 3. A mandatory to carry is only responsible for gross neglect, or a 
 breach of good faith.' 
 
 4. A mandatory to perform a work is bound to use a degree of 
 diligence adequate to the performance of it.* 
 
 5. lOne cannot be compelled to perform a promise to' receive a 
 deposit or mandate, nor to pay damages for refusing to keep such a 
 promise, because there is no consideration for the promise. But if 
 the bailee has received the deposit or mandate, and neglects to 
 perform the contract of bailment, he is liable.' 
 
 6. A borrower for use is responsible for slight -neglect." 
 
 7. A pledgee or pawnee is answerable for ordinary neglect. 
 
 8. The hirer of a thing is answerable for ordinary neglect. 
 (Accordingly, if a horse is hired for a journey, and is lamed, or lost, 
 as where it was forcibly taken by armed soldiers,' or goods hired are 
 burned, without the bailee's fault, the bailor must bear the loss. And 
 if, in consequence of the accident, as for instance to a horse, the 
 bailee is ;^ut to any expense in consequence thereof, and obliged to 
 procure other means of conveyance, the amount may be recouped 
 against the bailor's claim for the hire of the horse.' On the other 
 hand, if the horse is injured by the fault' of the bailee, the bailor may 
 charge him with the expense attending the doctoring and otherwise 
 caring for him.®) 
 
 9. A workman for hire must answer for ordinary neglect of the 
 goods bailed, and apply a degree of skill equal to his undertaking." 
 
 ' Story on BaU. §§ 36, 37. But see id., guilty of sucli neglect as to render him 
 
 § 39. responsible. 3 Jolin. 170. 
 
 " Story on Bail. §§ 66, 67. ' 5 Term R. 143. 3 John. Cas. 93. 4 
 
 ' 5 Ind. 463. 1 Clarke, 135, 141. 17 John. 84. 
 111.170. "4 Sand. 5. 7 Ind. 155. 37 lU. 350. ■ 
 
 * Where one took a slave on trial, with ^ 38 Ind. 135. 
 a, view to purchase him, and sent him "13 John. 311. 3Barb.-380. 33 id. 341. 
 half a mile on an errand, when the slave * 13 Minn. 335. 
 ran away, it was held the bailee was not "° 8 Ind. 315. 13 Wis. 104. 
 
OF BAILMENT. 51 
 
 10. A letter to hire of Ms care and attention is responsible for 
 ordinary neglect. A wllarfinger is such, and a warehouseman. 
 
 11. A carrier for hire by land or water is answerable for ordinary 
 neglect.* 
 
 Other decisions have been made as follows : 
 
 A bailee, bound only to ordinary diligence, cannot, on the ground ■ 
 of mistake, evade responsibility for a loss occasioned by gross 
 carelessness on the part of others, where he offers no evidence of 
 any care or diligence on his own part f nor is he bound to keep 
 articles deposited with him after he has offered to return them and 
 made an actual tender to the owner ; if, on such tender, they are not 
 taken away, the bailee may lawfully place them off his premises, and 
 is not responsible for their subsequent loss.* 
 
 It is unsettled what is the liability of a sheriff or other officer for 
 goods taken by him under legal process. Judge Story thinks he is 
 bound tp employ ordinary diligence only.* But this is questioned 
 by the court of appeals of New York,* and it is doubtful if a more 
 rigid rule will not yet be established against them. 
 
 Agistors of cattle are bound only to exercise ordinary care.* 
 
 § 105. The following exceptions to the rule are recognized : 
 
 1. One who spontaneously and officiously engages to keep or carry 
 , another's goods, though without reward, must answer for' slight 
 
 neglect. 
 
 2. If one, through strong persuasion and with reluctance, under- 
 takes the execution of a mandate, no more can be required of him 
 than a fair exertion of his ability. 
 
 3. All bailees are responsible for losses happening after their 
 reftisal to return things bailed on a lawful demand, although the loss 
 is by casualty or violence. 
 
 4. A borrower and a hirer are answerable in all events, if they 
 keep the things borrowed or hired after the stipulated time, or use 
 them differently from their agreement. 
 
 5. A depositary and a pawnee are answerable in all events, if they 
 use the thing deposited or pawned, unless it be of such a nature as 
 to be a charge upon the pawnee, as a horse or cow. In such case he 
 
 * 4 Ind. 368. 31 HI. 353. 89 id. 335. business of common carriers. See Story 
 
 43 id. 133. See the next section for tlie on BaU. § 457. 37 Cal. 11. 
 responsibility of common carriers of goods, ° 3 E. D. Smith, 364. 
 passengers and baggage. This subdi- = 3 E. D. Smith, 60. 
 vision has reference only to contracts * Story on Bail. § 130. 
 with persons who do not exercise the ' 31 N. T. 103. 
 
 '38111.96. 44 id. 335. 401*0.530. 
 
52 01? C0NTEACT8. 
 
 may use the horse moderately, or milk the cow regularly ; but any 
 profit deriyed from it must be applied to the discharge of the 
 pawner's debt.^ 
 
 6. An innkeeper is chargeable as a bailee for the goods of his 
 guest within his inn, whether delivered Specially to him or his ser- 
 vants, or placed where directed by them, or put where it is usual to 
 deposit them. Their rights and liabilities are more fully treated in a ' 
 subsequent part of this work.' 
 
 1. A common carrier, by land or water, by which term is meant 
 one who undertakes for hire to transport from place to place, the 
 goods of such as choose to employ him, is responsible from the time 
 he receives the property' for loss or damage to the goods intrusted to 
 him, unless occasioned by the act of God or the public enemies, and 
 this irrespective of any question of negligence on his part f hence, 
 if it is alleged, it need not be proved.^ By the " act of God," is 
 meant natural accidents that could not happen in any way by the 
 intervention of man ; as snows, storms, lightning and tempest, and, 
 to excuse the carrier, it must be the sole and immediate cause of the 
 loss.* Under this rule, a destruction by an accidental fire, not caused 
 by lightning, is no exetise, even though the immediate cause of the 
 burning was a sudden gust of wind so changing the course of a dis- 
 tant fire as to drive the flames upon the goods ;'' nor is a loss excused 
 where its immediate cause was the contact of a steamboat with the 
 mast of a sloop before then sunk in a squallj But one is, where it is 
 for goods thrown overboard in a storm, if it was necessary to save the 
 vessel and the balance of the cargo from destruction.' 
 
 8. A carrier of passengers by land is not an absolute insurer, at 
 all events, against all injuries, except by the act of God or the pub- 
 lic enemies, as is a common carrier of goods ; but he is bound to 
 carry safely those whom he undertakes to transport. In regard to 
 stage coaches and similar methods of cotrveyance. Judge Story lays 
 down the rule, thus : " Passenger carriers bind themselves to carry 
 safely those whom they take into their coaches, as far as human care 
 and foresight will go, that is, for the utmost care and diligence of 
 very cautious persons ; and of course they are responsible for any, 
 
 ' Story on Bail. § 89. " 8l Barb. 38. 
 
 = Infra, g 595. " 39 N. T. 115. 44 Barb. 655. 35 Cal. 
 
 '3 Kern. 509. 416. 40 Mo. 491. 
 
 «6Seld.481. 1 Kern. 485. a9]Sr.T.115. ' 6 Seld. 431. 
 
 44 Barb. 655. 33 Cal. 308. 39 lU. 335. 35 » 39 K Y. 115. 
 
 Incl. 434. 31 Wis. 31. 39 Mo. 184. 40 » 44 Barb. 655. 
 ill. 401. 43 id. 431. 
 
OF BAILMENT. 53 
 
 even the slightest neglect."^ And, although it is sometimes said 
 that the same rules apply to carriers by stage and on railroads,* yet 
 this is hardly true, for while in both cases it is said a certain degree 
 of care must be exercised, it is plain that what would be sufficient 
 in case of a stage-coach traveling at eight miles the hour, would not 
 be So in case of a train of cars running at three times that speed ; 
 and accordingly the later decisions hold that the degree of vigilance 
 must vary with- each case and the probable consequences of negli- 
 gence,' and that railway carriers are bound to exercise all precau- 
 tions and the utmost degree of care and skill in the preparation of 
 the means of conveyance, and are liable for injuries occasioned by 
 latent defects which could not be discovered by the most vigilant 
 external examination if they could have been discovered in the 
 process of manufacture, by the application of any test known to 
 men skilled in such business.* They are also liable for damages for 
 an injury which could have been prevented by the use of any 
 improvement in its apparatus, the adoption of which was within its 
 power, so as to be reasonably practical.^ In case of accident, the 
 passenger maj endeavor to save himself; and, in such an emergency, 
 the law does not require from him all of the presence of mind and care 
 of a prudent and careful man. He is only required not to act rashly 
 under the circumstances, or under undue apprehension of danger.* 
 But in regard to the baggage of their passengers, the same rule 
 applies as to goods taken for transportation, and the carriers are 
 liable for all injuries to it, except such as are occasioned by the act 
 of God or the public enemy, and this, though no separate price is 
 paid for its transportation.' Accordingly, the carrier may be liable 
 for an injury to baggage, when he would not be for one at the same 
 accident, to the passenger himself;' but the baggage must be such 
 articles as are usually carried by travelers, and an amount of money 
 which might be reasonably carried for traveling expenses, taking 
 into account the journey itself, and including an allowance for sick- 
 ness, accidents and sojourning by the way.' Under this rule a 
 
 ' Stray on Bail. § 601. Also, 26 N. Y. 534. 5 Duer, 193. 16 lU. 558. 19 id. 510 
 
 103. 34 icL 404. 36 id. 878. 4 Iowa, 547. 30 id. 9. 33 Ind. 36. 
 
 4 Greene, 555. 16 111. 558. 19 id. 510. " 19 N. Y: 137. 
 
 33 id. G57. 18 Cal. 599. 36 Ind. 328. 11 « 17 lU. 406. Id. 509. 33 Barb. 398. 
 
 Minn. 377. id. 296. 36 Mo. 351. 37 id. '^36 Wend. 591. 13 id. 638. 30 N. Y. 
 
 587. 594. 34 id. 548. 36 Barb. 557, 561. 45 
 
 » Edw. on Bail. 587, 588. ' id. 218. 
 
 '' 3 Kern. 4^25. 3 id. 9. 30 N. Y. 65. ' Edw. on Bail. 437, 438. 13 Wend. 
 
 16 111. 558. 611, 629. 
 
 <3 Kern. 9. Also, 18 N. Y. 408. Id. »30N'.Y.594. 4 Duer, 116. 4Bosw.335. 
 
54 
 
 OF CON'rEACTS. 
 
 passenger may take, as baggage, such articles as it is usual foi 
 persons to carry with them for necessity or convenience, or foi 
 ornament, as his working tools, jewelry, a few books for reading, a 
 watch, guns for sporting purposes, or a revolver.* But jewelry for 
 sale or purchased as presents for friends, or masonic regalia, ^or 
 engravings, are not baggage within the rule.^ The liability con- 
 tinues till it is delivered to the owner or the consignee or ware- 
 houseman,' and a delivery, upon a forged order, will not excuse the 
 ' carrier ;^ but the carrier's strict accountability terminates within a 
 reasonable time after the baggage has reached its destination, if he 
 is then ready to deliver it to the passenger, his obligation being 
 only to transport and deliver the same at a reasonable time and in 
 the usual manner.' Accordingly, if a passenger leave his trunk 
 with the carrier over night, no understanding or arrangement being 
 made in regard to it, and the same is destroyed by the accidental 
 burning of the depot before morning, the carrier is not liable, if 
 without fault, or not guilty of any negligence.® 
 
 § 106. In all cases a bailee is responsible for a loss of any kind, 
 if it be occasioned by the degree of negligence for which his contract 
 makes him liable. Thus a carrier by water is not answerable for a 
 delay occasioned by this freezing of the river or canal which he 
 navigates ; but if, by his negligence, the transportation has been so 
 retarded that the vessel with her cargo is frozen in before reaching 
 its destination, he is answerable for all the loss.' 
 
 [§ 106a.] A common carrier is bound, either with or without a 
 special agreement, to transport and deliver the goods entrusted to 
 him in a reasonable time, depending in each case upon the particular 
 circumstances thereof.' If not so transported or delivered, he is 
 liable. If his means of carrying it are destroyed, as a vessel, for 
 instance, he must use all means to secure another f and if two kinds 
 of property are delivered to him, one perishable and the other not, 
 and owned by different parties, if he cannot take all he may give 
 preference to the former.*" It is no defense that a delay was occa- 
 sioned by the negligence or willful act of the conductor of a railroad 
 train, nor by the wrongful and sudden refusal of a large number of 
 
 ' 4 E. D. Smith, 181. id. 453. 10 How. " 34 N. Y. 548. 
 
 Pr. R. 330. 4Duer, 116. 6Ind.242.' S3 ' 33 "Wend. 306. See also 30 N. Y. 564. 
 
 111. 813. Id. 378. 24 id. 833. 38 id. 219. " 23 Barb. 278. 6 Duer, 375. 18 111. 
 
 ' 4 Bosw. 225. 2 id. 589. 488. 40 Mo. 491. 
 
 • 39 Barb. 35. ° 38 N. Y. 217. 
 
 • 26 Wend. 591. 16111.502. '° 45 Barb. 502. 
 » 20 Barb. 3D. 36 id. 557. 
 
OF DEBT. 55 
 
 its servants to work.^ But if a road is properly equipped and in 
 good order, it is not liable for a delay occasioned by an unusual 
 accumulation of freight at a particular point, if it is forwarded as 
 fast as possible, and without preference in the order of its receipt.' 
 A common carrier, and also a carrier of passengers, may contract 
 absolutely to transport and deliver in a certain time ; and if he do so, 
 he is not excused, even by inevitable accidents, from the performance 
 of his agreement.* So he may, by express contract, limit his legal 
 responsibility, the burden of proving which rests on the carrier.* 
 But he cannot so contract against his own fraud, willfulness, reckless- 
 ness or gross neglect in the transportation of freight for which a 
 compensation is paid.* 
 
 [§ 1065.] A bailee (and a common carrier comes within the rule) 
 may show, in defense to an action for goods intrusted to him, that 
 they have been taken from him by the authority of the law, exer- 
 cised through regular and valid proceedings, it being incumbent on 
 him to- show that they were so;* but if he received them of one 
 person, he cannot resist his claim for them on the ground that they 
 belong to others who have given notice Of that fact, even, it seems, 
 if the depositor had fraudulently obtained and converted them.'' If, 
 however, they were delivered by an agent, the principal may claim 
 them, even though the agent has ordered that they be not given up 
 without his consent.* 
 
 § lOY. The foregoing rules may be diversified to infinity by the 
 circumstances of each particular case. The duty of the judge and 
 jury is first to determine the nature of the contract of bailment, and 
 the degree of neglect which renders the bailee accountable, and then 
 to apply the rules to the circumstances in evidence. The question 
 then becomes one of fact.' 
 
 § 108. III. Debt. This last species of contract comprehends all 
 agreements, express or implied, by which one party becomes bound 
 to pay another a sum of money, either fixed by the terms of the 
 contract or capable of being determined by other evidence.. In all 
 such cases an action can be brought to recover the amount justly 
 
 ' 17 N. Y. 362. 30 id. 48. * 19 111 136. 43 id. 474 Ante, § 37 a, 
 
 ' 2 Kern. 345, 251. 40 Mo. 491. note (1). 
 
 ' 3 Kern. 99. Id. 251. ° 35 Barb. 188. 37 id. 133. 45 id. 390. 
 
 n Kern. 485. 49 Barb. 31. Id. 363. ' 37 Barb. 139. But see 1 Duer, 79. 36 
 
 1 E. D. Smith, 115. 3 Ohio N. S. 131. N. Y. 403. Infra, § 735. 
 5 Mich. 368. 6 id. 343. 19 111. 136. 24 » 44 Barb. 505. 
 
 id. 466. 37 id. 484. 43 id. 474. 22 Ind. ■ ° 3 Kern. 9. 
 26. 1 Oregon, 409. 
 
56 OF COIfTEAOTS. 
 
 due to the plaintiff. Under the ancient system of pleading, the 
 action usually brought was termed an action of trespass on the case 
 upon an assumpsit, or an action of assumpsit. All that is necessary 
 now to warrant a judgment, is that the pleadings set forth a cause of 
 action arising from the default of the defendant in keeping his con- 
 tract, in consequence of which the other party has suffered loss. > 
 
 § 109. In contracts, the evidence of which is in writing, such as 
 records, judgments, decrees, and all written instruments, whether 
 with or without seal, the obligations of the parties are determined by 
 the interpretation of their language.-' There are certain rules of 
 interpretation which are observed by courts, among which are the 
 following : 
 
 1. The intention of the parties, where it is manifest from the 
 instrument, shall prevail unless it is contrary to some rule of law.^ 
 
 3. Where the intention is manifest, a mistake or inconsistency in 
 the language employed will be disregarded ; as where the condition 
 of a bond for the payment of money was that it should be void if it 
 was not paid, the court rejected the not, as inconsistent with the 
 intention. And in like cases, where the omission of a word is 
 manifest, courts will supply it.' 
 
 3. "Where, by the language of the contract, persons or property 
 are described or referred to, by a description which may be applied 
 to other persons or property, extrinsic evidence can be received to 
 render it certain which was intended.* As where I contract to sell 
 my farm in Blackaere, and I have at the time two farms there. In 
 this case it can be shown by other evidence than the contract which 
 farm I intended. The defect in the contract is termed a latent 
 a/miiguity. If, however, there is an uncertainty aiising from the 
 language of the instrument itself, as where one by will gave to "A.. 
 B. and C, and the heirs one of them," extrinsic evidence cannot be 
 given to show whose heirs he intended. In this case the ambiguity 
 is fotent? 
 
 i. The words employed in a written instrument are to be under- 
 stood in their ordinary sense. If they are technical terms, or words 
 used in a peculiar sense, by persons in a particular trade or profession, 
 extrinsic evidence may be given to show their meaning.* 
 
 ' 3 Comstock, 153. ' Story on Con. §§ 677, &c. Infra, § 
 
 " Story on Con. § 634 18 N. Y. 863. 1422. 
 
 ' Story on Con. § 636. . " Story on Con. § 647, &c. See gener- 
 
 * 2 Kent, 556. 23 Wend. 148. 6 Seld. ally as to this section, infra, §§ 1430, &c. 
 207. 215arb. 398. Infra, § 1431. 
 
OF DEBT. 57' 
 
 [§ 109«.J The execution and delivery of a written contract, merges 
 all prior negotiations and agreements, verbal or written, relative 
 thereto, and parol evidence is inadmissible either to show the terms 
 of the former one, or that it was agreed it should remain as a sub- 
 sisting contract.-' If, however, the written contract is only, in part 
 execution of the prior one, as if it contained several distinct pro- 
 visions, and the subsequent one covers a part only of them, then the 
 prior one' is merged to that extent only, and is a subsisting one for 
 the remainder thereof.^ • 
 
 § 110. Wten the obligations of the parties are determined by the 
 interpretation of the agreement, whether there has been a failure by 
 one party to perform them, is a question of fact to be determined by 
 evidence, and, unless the contract provides for the amount of damages 
 to be paid in case of default, they are also to be ascertained from 
 evidence, subject to certain rules, which will be noticed in a subse- 
 quent portion of this work. 
 
 § 111. Contracts upon which actions can be brought for the recovery 
 of money only, in addition to those mentioned in the preceding sec- 
 tion, include every description of agreements by which one party has 
 undertaken to do or not to do, or that another shall do or not do, a 
 particular thing, or that a particular fact is or is not so. 
 
 § 112. It was remarked in the former part of this chapter, that a 
 slight consideration is sufficient to sustain a contract, and that the 
 least benefit to the defendant or loss to the plaintiff is sufficient, 
 within the rule.^ Instances illustrative of this are everywhere scat- 
 tered through the books. A few decisions additional to those before 
 given are found in the notes.* A submission to arbitration is a good 
 consideration for the contract to abide the award, if the promise to 
 submit is made by both parties at the same time ; otherwise it is 
 void.^ So, if I agree that if you will come from a foreign govern- 
 ment I will not sue you,* or that if you will enter upon A's land, 
 which I claim, I will indemnify you.'' In all these and similar cases, 
 there is some benefit to the promisor (or to some third p)erson at the 
 promisor's request, as in 1 Games, 45), or harm, or expense, or loss 
 of some kind to the promisee ;, and wherever these or either of them 
 
 '2 Kern. 561. 34 Barb. 39. 36 id. 9. * 1 Caines, 45. 3 John. 104. 14 id. 466. 
 
 87 111. 316. 46 id. 47. 17 Mich. 306. 33 19 Barb. 106. fe Cranch, 143. 
 
 Ind. 56. 34 id. 199. 15 Iowa, 387. Id. 450. ' 3 Caines, 166. 13 John. 397. 30 K 
 
 "3 Kern. 561. 16 N. Y. 533. 41 Barb. Y. 304. 
 
 619. 45 id. 171. «3Aik.338. 
 
 ' Ante, §§ 35, &c. ' 3 John, Gas. 53. 
 
 8 
 
58 
 
 OF C0IJTEACT8. 
 
 exist, tkere is a/ sufficient consideration for any, the most onerous, 
 agreement.^ 
 
 § 113. Mutual promises made at the same time furnish good con- 
 siderations for each other, unless the promise upon one side is void ; 
 as a promise to do an unlawful act.^ But if the promise of one party 
 be voidable only, as the promise of an infant to nlarry, the considera- 
 tion is suiRcient, and the infant can maintain an action for its breach, 
 although his infancy would be a good defense to an action by the adult.^ 
 But if the agreement of one of the parties is to do, in a few days, 
 what he is in law bound to do at the very time he makes the promise, 
 it is not a sufficient consideration for the agreement of the other.* 
 
 § 114. A promise by one to pay another twenty dollars for a cow, 
 is a good consideration for a promise that he will deliver her for that 
 sum ; but neither party can maintain an action upon the contract 
 without showing his own performance, or a tender of performance, 
 which is equivalent to it.^ So, where a statute provided a premium 
 for the producer of the best article of a certain description, and two 
 producers, who were seeking to obtain it, mutually agreed that if 
 either of them received it he should divide it equally with the other, 
 the contract was held binding.* 
 
 § 115. It has been stated' that a moral obligation not foimded 
 upon a previous legal or equitable obligation, is not a sufficient con- 
 sideration for a contract. But where one for my accommodation 
 gave his note to A, and you purchase it of A, a promise subse- 
 quently made by me to pay it to you is good, on the ground of my 
 prior equitable obligation.' And where I have a judgment against 
 one, and he delivers to me a pledge to secure it, and I seU the pledge 
 upon execution, promising to pay what it sells for beyond satisfying 
 the judgment, the consideration is a good one for the promise.' So, 
 if I pay money for the benefit of another, his subsequent promise to 
 repay me is good.'"' 
 
 ' 1 Story on Con. §§ 431 to 434. 33 him a certain sum, altiougli the agree- 
 Ill. 357. ment does not bind A. to pay the notes, if 
 
 " Story on Oon. §§ 447, 448. 4 Corns, he does do it, he may recover of B. on his 
 
 249. 41 Mo. 389; but see 3 Seld. 349, promise. 
 
 ■where it is held that this rule " is confined ' Story on Oon. § 449. 7 Cowen, 33. 
 
 to cases where ,the want of mutuality * 35 N. Y. 189. 40 Barb. 513. 
 
 would leave one party without a valid or ° 3_ Kent, 465. 
 
 available consideration for his promise," ° 8 John. 304. 
 
 and that if A, agrees with B. that he will ' Ante, § 35. 
 
 pay certain notes upon which . he is '3 Caines, 150. 
 
 endorser, but not yet matured, and in » lljohn. 533. 
 
 consideration thereof B. agrees to pay " 35 Ind. 253. 41 Mo. 303. 
 
COXSruEEATIOK. 59 
 
 § 116. A promise made by the owner of land to a trespasser, who 
 had made improvements thereon without the owner's knowledge, to 
 pay him for the improvements, is void as being without a sufficient 
 consideration.^ 
 
 § 117. Where A claimed a sum of money of B, who denied it, 
 but promised to pay it if A made oath that it was due, the fact that 
 A made the oath was held a sufficient consideration for the promise 
 to pay, and B was not permitted to show either that A swore falsely 
 or was mistaken.^ But where a claimant offers to be satisfied if the 
 other party will swear that nothing is due, or to a state of facts 
 showing that nothing is due, and the latter makes an affidavit to 
 that effect, the action is barred by the affidavit, irrespective of- its 
 truth ; and in such case it is not necessary that the affidavit be given 
 up to the claimant. He is entitled only to an inspection of it.' If, 
 however, it is agreed that a certificate given by a third person shall 
 be evidence that a claimant is entitled to payment, that certificate is 
 not conclusive, and may be shown to be a fraudulent one.* ,An 
 agreement to receive of A and pay notes of a certain bank, whereby 
 A was induced to take them, was sustained as made for a good consi- 
 deration, for all A had taken up to the time of the failure of the 
 bank.' 
 
 § 118. A promise by the holder of a note, or by any other credi- 
 tor, to extend the time of payment, or to forbear to sue a note or 
 demand then due, if without some new consideration, is void, and 
 even the payment, at the time, of a part of the debt, is not a suffi- 
 cient consideration for such a promise.^ If, after a suit is brought 
 for money then due, the plaintiff promises to discontinue the suit on 
 the defendant's simple agreement to pay the amoimt in a few days, 
 that promise is void.'' An agreement between the holder and maker 
 of a note payable on demand, with interest, that the maker will pay 
 interest semi-annually, and shall not pay the principal until he 
 wishes to, is also void ; ' and so is a promise to pay a smaller sum 
 than is due, even, it seems, where the promise is reinforced by addi- 
 tional security from the debtor's own means ; but if a third person 
 gives the additional security, it would be good by way of accord and 
 
 • 5 John, 273, and see infra, § 133 ; 389. 3 Hall, 185. 35 K Y. 189. 30 id. 
 also, 32 111. 206. 474. 38 id. 648. 38 Barb. 96. 5 Duer, 
 
 " 18 John. 337. 303. 33 How. Pr. R. 431. 13 Abbott, 33. 
 
 ' 15 Abbott, 341. 13 Cal. 598. 1 Kansas, 108. 13 Iowa, 
 
 * 3 Hall, 339. 335. 14Ind.401. 
 ' 3 Hall, 477. ' 40 Barb. 513. 
 
 ' Supra, § 36. 13 John. 436. 19 Wend. ' 10 Bosw. 369. 
 
60 ^ Oy CONTEAOTS. 
 
 Batisfaction.' An agreement to forbear the payment of a debt in 
 consideration of a usurious premium is void,^ and so is one made 
 before the claim is due to extend tbe payment, if, when it becomes 
 payable by its original terms, the debtor will pay a portion thereof^ 
 or pay damages for the detention of a certain sum of money, 
 beyond the amount detained.' But if the debtor furnishes additional 
 security for the debt, or for other debts owed to the same creditor ; 
 or pays expenses in other matters ; or takes up the old note and gives 
 a new one in its place, payable at a different time; or makes a 
 payment upon the debt before it is due; or pays a part of the 
 amount, with the costs of a suit brought to recover it, the judgment 
 not yet being entered; it is otherwise, and there is a sufficient 
 consideration for an agreement to extend the time of payment Of the 
 debt, or any other agreement relative thereto not forbidden by law ; * 
 and so, if a creditor agrees with a, third person to accept less than 
 his demand, for a debt owed him, that agreement is a valid one, and 
 may be enforced.^ 
 
 § 119. The voluntary restoration of that which the law will com- 
 pel one to restore,^ the relinquishment of a void promise, a discharge 
 from arrest, an agreement to commit or conceal a crime, to violate 
 one's duty as a public officer, or to do an act which is immoral, will 
 not furnish a valid consideration for a contract,'' But a promise to 
 indemnify one against the consequences of an unlawful act already 
 done is valid ; thus, a bond to a sheriff to indemnify him against a 
 voluntary escape which has already happened is good.^ And^ so, 
 while a promise to pay a sum in consideration of future pr,ostitution 
 is void ; one to -pay a sum for having debauched a woman is sustained, 
 on the ground that an injury had been inflicted upon her which the 
 promisor should indemnify her for.' 
 
 § 120. Kelationship or natural affection, although a sufficient con- 
 sideration for a gift or grant,^" is not sufficient to support an executory 
 contract, as a note or covenant to pay money." 
 
 § 121. Where one buys goods for money which is not paid, and 
 there is neither earnest money given nor a delivery, no action lies 
 
 'Lalor,59. 33N.Y.648. 3Duei-,418. 
 » 1 Comstock, 274 5 Duer, 302. 
 '3 John. 442. 1 Wend. 317. 
 •25 Barb. 175. 3013.395. 34 id. 444. 
 ' 48 Barb. 577. 
 ' 2 Cowen, 183. 
 
 ' 1 Story on Con. §§ 569, 571, 673. 
 Roll. Abr. 16, pi. 89. 19 "Wend. 188, 
 
 ' 1 Cainea, 450. 
 
 14 John. 878. 3 HaU, 
 
 579. 
 
 
 » 4 Denio, 439; 
 
 13 Barb. 93. 
 
 " 9 Barb. 487. 
 
 
 " 18 John. 145. 
 
 3 Seld. 343. 9 Barb. 
 
 487. 
 
 
CONSIDEEATION. 61 
 
 for tte money or goods.^ So where I give you tlie refusal of goods 
 at a certain price, for a certain time, and you give me notice within 
 the time that you will take them, this does not bind me, for you not 
 being bound to accept the offer, there was no consideration for my 
 promise.* So where one agrees gratuitously to build a house or to 
 insure for another and neglects it, no action lies, even though special 
 damage ensued.* It would however be otherwise, if the carpenter 
 or insurer had entered upon the work.' 
 
 § 122. A verbal permission to one to pass and repass over my land 
 is a mere license, and will not prevent my withdrawing the license 
 and fencing up the passage.^ The death of the licensor or his con- 
 veyance of the land to another will, in law, revoke such a license,® 
 but it is effectual to justify everything which may be done under 
 it prior to its revocation, except, indeed, injuries to the lands result- 
 ing from carelessness or unskillfulness in the licensee.' Such a license 
 given without limitation as to time, is deemed to continue until a 
 revocation is , shown, and never would, of itself, ripen into a 
 permanent right to enjoy it.^ 
 
 § 123. As seen at section 27, where the consideration be wholly 
 executed before the promise is made, it is not sufficient, unless it 
 arose at the request of the party making it, or was' so clearly 
 beneficial to the party promising that a request may be implied from 
 the moral obligation to make one. For the general rule is, that I 
 shall not without a request, do you a kindness and afterward charge 
 you for it, even though you then promise to pay for it. As if I, 
 without your knowledge, save your property from fire and you after- 
 ward promise^to pay me for my trouble.' But, as we have said, 
 where the circumstances under which the service is performed show 
 a strong moral obligation to make the request, one is implied. As 
 where one, without cause, expels his wife or child from his house, 
 and another furnishes them necessaries ; where, duriag the absence 
 of A his wife or child dies and B buries her and A promises to 
 pay for the service ; in these and similar cases, the jury may infer a 
 request in order to support the express promise." Where the service 
 
 ' Dyer, 30, a. Sliep. Toucli. 334 ^ ' 35 Barb. 163. 
 
 = 8 Term E. 653. ' 6 Hill, 61. 3 Seld. 379. 39 N. Y. 
 
 '3Lcl. Bay. 919. 5 Term K. 143. 4 634. 84 id. 30. 
 
 John. 84. 30 id. 879. ^ ' See 31 N. Y. 118. 
 
 * 3 John. Cas. 93, 95. Edw. on Bail. ' 30 John. 38. 41 Mo. 303. 
 
 98^ 99. . '° Story on Con. § 474. 1 H. Bl. 90. 1 
 
 = 10 John. 346. Infra, §§141, &c., 506, Caines, 585. 7 John. 87. 10 id. 343. 14 
 
 &c. 38 Mo. 588. 33 Wis. 550. id. 188. ' 
 
62 OF COHTEACTS. 
 
 which fofms the considsration was perfoiined at the request of the 
 party, the circumstance that the promise was subsequently made 
 does not affect it. As where I \perform a service at your request and 
 you afterward promise to pay me a certain sum for it the promise is 
 good.' If I am compelled to pay the debt of a third person, being 
 his surety, or otherwise liable, in law, to do it, his subsequent promise 
 to repay me is binding, but if I am not under any legal obligation 
 to do it, and make the payment voluntarily, the subsequent sanction 
 and adoption .thereof by the debtor would not sustain an action ; 
 whether an express promise would be sufficient is doubtful, but it 
 would probably be held to be so.' 
 
 § 124. A consideration partly executed at the time of the promise 
 and completed afterward will support it, though it be begun and 
 completed without the request of the party promising. Snch. are 
 called continuing considerations. As where one married a maid who 
 lived in the plaintiff's house, and about the middle of the year 
 promised Mm that if she remained for the year he would pay for her 
 board for the whole year, past as well as future.' 
 
 § 125. The consideration may come from a third party, and the 
 agreement itself may be made between two persons for the benefit 
 of a third, who may maintain an action upon it if he adopts it, 
 though he was not privy to the consideration nor, cognizant of the 
 promise when made ; as where, in consideration that you will con- 
 tract with A to deliver him a , horse, I will pay you the price, or I 
 loan money to a person who promises to pay it to the plaintiff to 
 whom I am indebted in that amount. In such a case, although the 
 plaintiff knew nothing of the matter till afterward, he may recover 
 upon the agreement.* 
 
 § 126. Actions can be maintained on valid subscriptions to the 
 stock of corporations, or for other purposes,, and this although 
 another remedy is given by statute, as a forfeiture of the shares and 
 all previous payments.^ Conditions may be inserted in these papers, 
 unless forbidden by statute or against public policy, as that they are 
 not to be binding unless a specified sum is subscribed, but it is essen- 
 tial that these be applicable alike to all the subscribers, and any made 
 
 ' 1 Roll. Ab. 11 pi. 6. 53 id. 61. 6Ducr,564. (See 33 Barb. 194. 
 
 " 1 Parsons on Con. 394, &c. 30 Barb. 88 id. 303.) 18 Ind. 114. 19 id. 40. 30 id. 
 
 151. 163. 34 id. 318. 19 Iowa, 187. 
 
 » 1 Com. on Con. 34, 35. . 1 Story on " 9 John. 317. 4 Kern. 336. 16 N. T. 
 
 Con. § 477. 3 Bulst. 187. 457, n. 30 id. 64. 17 Barb. 567. 18 id. 
 
 * 3 Denio, 45. 30 N. Y. 368. 34 id. 397. 31 id. 56. Id. 541. 81 id. 333. 
 178. 37 Barb. 83. 40 id. 119. Id. 335. 
 
8TJBSCEIPTI0IJ-S. 63 
 
 in violation of this rule, which may be shown by parol, are not valid 
 nor to be counted as against the others.^ A person may erase 
 ■ his name from a subscription if it is done before it leaves his posses- 
 sion, or is filed when filing is necessary,^ and although the charter 
 requires a payment at the time of making the subscription a pay- 
 ment afterward will make it valid.' If at the time of signing, 
 the charter of the company with all its privileges has been revoked 
 and annulled, without the knowledge of the subscriber, his subscrip- 
 tion is without consideration and void,* and so is one to the prelimi- 
 nary subscription for the formation of plank roads under the New 
 York general act of 1847 ; those only who subscribe the articles of 
 association of these companies are entitled to stock or compellable to 
 pay for' the same ; the same rule applies to railroad subscriptions 
 under the law of 18481^ A bond, or a promissory note, or renewals 
 thereof, given in payment for subscriptions is valid.* If a person 
 who has subscribed for stock, subsequently, and before it has been 
 paid for, transfers it in good faith to a third person, with the assent 
 of the corporation, the assignee becomes liable for the unpaid balance, 
 and the original subscriber is exonerated therefrom.'' So far we have 
 spoken only of valid subscriptions, or of those void on account of 
 some illegal condition. The question when subscriptions are valid 
 as founded on a sufficient consideration, is one of much practical diiS- 
 eulty. The case of the Trustees of Hamilton College v. Stewart^ holds 
 that the endowment of a literary institution is an insufficient considera- 
 tion, although there is annexed a provision that the. subscription shall 
 not be binding unless a certain amount is raised, there being no express 
 or implied request therein that the institution shall perform the ser- 
 vices and incur the expenses necessary to fill up the subscription ; in 
 other words, that there was no mutuality and no liability or expense 
 to be incurred at the express or implied request of the subscribers.' 
 But the law seems to be clear, that if the subscription contains, or 
 the subscriber's acts amount to a request, express or implied, that a 
 corporation or association then or to be formed, incur liabilities or 
 make expenditure, or do anything, on the strength thereof, then, if 
 the subscription is subsequently accepted by the corporation, or those 
 
 ■ 15 TSr. T. 583. 31 id. 373. 18 Barb. n6N.Y.451. 34 id. 150. 18 Barb. 397, 
 
 397, 317. 34 id. 199. 38 id. 59. 29 id. 310. 34 id. 518. 33 id. 616. 
 
 835. 38Ind,344. 15 Ohio N. S. 335. Id. '34 Barb. 301. 30 id. 346. 31 id. 333. 
 
 838. 16 id. 20. 85 Hi; 518. 46 id. 377. ' 35 Barb. 413. 
 
 = 31 Barb. 56. 34 id. 518. ' 1 Comstock, 581. 
 
 '16N.Y.451. 35 id. 308. 28 Barb. 354. " 20 Barb. 159. 
 
 * 39 Barb. 579. ' 
 
64 OF CONTEACTS. 
 
 for .whose benefit it was 'made, and tlie expenditure is made, oi 
 liabilities incurred, or labor done, the several subscriptions become 
 binding, and can be collected of those making the same.^ If the 
 paper provides for the payment of the amount to a person to be 
 elected at a certain time by a certain body, an election at a subse- 
 quent time is sufficient;'' if it contains conditions these may be 
 waived by the conduct of the subscriber ; ' in the case of corpo- 
 rations, the subscribers are not released by subsequent amendments 
 of their charter made by the legislature ; * and if payable to any 
 particular person, he may incur the liability, or do. the work and 
 make the expenditure, and sue for the subscriptions.' A stock sub- 
 scription may be made payable before the full capital is subscribed." 
 § 127. In ISTew York the following classes of contracts, or some 
 note or memorandum thereof, are by a statute ordinarily denominated 
 the statute of frauds, required to be in writing, and to be subscribed 
 by the party to be charged therewith, viz. : 
 
 1. Every agi-eement that by its terms is not to be performed within 
 one year from the making thereof. 
 
 2. Every special promise to answer for the debt, default or miscar- 
 riage of another person. 
 
 3. Every agreement, promise or undertaking made upon considera- 
 tion of marriage, except mutual promises to marry.' 
 
 Another statute adds a fourth class of cases, which are not only 
 like the others to be in writing and subscribed by the party to be 
 charged therewith, but in addition the agreement, or the note or 
 memorandum thereof Tnust express the consideration^ a necessity that 
 existed as to the other cases also until the law of 1863. This fourth 
 class is as follows : 
 
 4. Every contract for the leasing for a longer period than one year, 
 or for the sale of any lands or any interest in lands.' 
 
 If part of an entire contract is void under, this statute, the whole is.' 
 
 [§ 12'7a.J "What was said at sections 90 and 91 relative to the form 
 
 of the memorandum required' by the statute referred to at section 88, 
 
 '3 Kern. 98. 21N.Y.334 34 id. 879. « 31 Barb. 56. 
 
 38 Barb. 59. Id. 254. 39 id. 335. 36 id. ' 3 K. S. 135, § 3. 3 id. (Banks' 5tli ed.) 
 
 576. 87 id. 535. 88 id. 331. 43 id. 330. 331. 4 id. 644. Laws of 1863, oh. 464, p. 
 
 44 id. 547. 46 id. 335. 13 Micli. 73. 35 803. 
 
 111.393. 13 "Wis. 646. • 3 E. S. 133, § 8. 8 id. (Banks' 5tli ed.) 
 
 = 40 Barb. 73. 330. See 30 Mo. 534, for the rule as to 
 
 ' 29 Barb. 335. this class there. - 
 
 ' 36 K Y. 113. 31 Barb. 454. » 36 N. Y. 537. 3 Transcript 371. 
 » 44 Bai-b. 647. 
 
WHEN TO BE Iff "WEITING. 65 
 
 its suBscription, and tliat by an agent or anctioner, apply as well to 
 the cases now under consideration, except that as this statute requires 
 that the memorandum be signed only by the pa/ri/y to be charged 
 therewith, it is sufficient that it be signed by but one of them, being 
 the one to be charged, instead of both, as in the former instance.^ 
 While an authority to an agent to convey real estate by deed must be 
 under seal, an authority to contract for the sale thereof may be by 
 parol ; and that authority may be inferred if the principal afterward 
 adopts and ratifies the contract made for him by the agent. The 
 contract to sell must be signed by all the vendors in person or by 
 their agents.* 
 
 Although under the old statute prior to the Revised Statutes, when 
 as now the consideration was not required to be given, the courts still 
 held it necessary that it be inserted, because " the agreement " was to 
 be in writing ; ^ yet following the evident intention of the legisla- 
 ture in striking the clause out of the Eevised Statutes, the courts 
 now hold that the consideration need not be expressed.* It is yet 
 necessary, however, in the cases specified in the fourth clause, that 
 the memorandum express the consideration, and the words "for value 
 received " are sufficient for this purpose.^ A telegram delivered by a 
 party or his agent to, and forwarded by a telegraph operator to the 
 party claiming under it, is a sufficient memorandum under this statute.* 
 
 § 128. Under the fiest class of contracts mentioned in the last 
 two sections, it is held that to bring an agreement within the statute, 
 it must be one that cannot be performed within a year, although the 
 performance is to be commenced within tkat time.'' But if it may 
 be performed within the year, it is not within the statute, and is 
 valid.' If an agreement is void because within the statute, and it 
 has been fiilly performed on one side, and that performance accepted 
 by the other party, a recovery may be had against him for the value 
 of that which he has received, but not on the contract itself' 
 
 '18elcl.239,aiidrefs. .4Kem.584. 34 548. 44 id. 1G2. 52 id. 501. 4 Bos,w. 
 
 N. Y. 57. 39 Barb. 620. 354. 2 Barb. Ch. 231. 2 Hilton, 116. 5 
 
 \ 53 Barb. 17. "Wend. 204. 13 id. 307. 35 lU. 23. 23 
 
 »3Jolm. 210. See 21 N. T. 616. Ind. 333. 
 
 • 37 How. Pr. R 315. 6 Abbott, N. S. « 2 Kent, 510, note. 10 John. 344. 10 
 
 309. Also in Indiana, 28 Ind. 53. Wend. 436. 15 id. 336. 3 Hill, 138. 19 
 
 '33N Y 495, andrefs. 3Keyes,589. N.Y.305. 35 Barb. 573. 6 Ind. 352. 23 
 
 g ia 161 id. 328. 21 Wis. 415. 
 
 "35 Barb. 463. ' '44 Barb. 162. See 35 Hi. 22, 41 Vt. 
 
 ' 7 Cowen, 263. 5 Hill, 200. 3 id. 128. 541. 
 IDenio, 603. Id. 608. 2 id. 87. 31 Barb. 
 9 
 
66 Off CONTEACTS. 
 
 § 129; tJnder the SEcoisfD class, promises to answer for the debt, 
 default or miscaTriage of another, it is held that the general rule is, 
 " that all promises to answer for the debt or default or miscarriage " 
 of a third -person, must be in writing, whether the promise be made 
 before, at the time, or after the debt or liability is created. The stat- 
 ute makes no exception of any promise which is of that character. 
 But a considerable variety of undertaMngs, having points of resem- 
 blance and analogy to such promises, have been held not to be within 
 the statute. These may be cfiiefly if not wholly arranged in the 
 following classes : 1. Where there was no original debt to which the 
 auxiliary promise could b6 collateral ; for example, where the pro- 
 misee was a mere guarantor for the third person to some one else, and 
 the promisor agrees to indemnify him, or where his demand was 
 founded in a pure tort. 2. Where the original debt becomes extin- 
 guished, and the creditor has only the new promise to rely upon ; for 
 example, where such new undertaking is accepted as a substitute for 
 the original demand, or where the original demand is deemed satis- 
 fied by the arrest of the debtor's body, or a levy on his goods, the 
 arrest or levy being discharged by the creditor's consent. 3. Where, 
 although the debt remains, the promise is founded on a new conside- 
 ration which moves to the promisor. This consideration may come 
 from the debtor, as when he puts a fund in the hands of the promisee, 
 either by absolute transfer or upon a trust to pay the debt, or it may 
 be in his hands charged with the debt as a prior lien, as in the case 
 of Williams v. Leper (3 Burr. 1886), and many others. So the con- 
 sideration may originate fn a new and independent dealing between 
 the promisor and the creditor, the undertaking to answer for the 
 debt of another being one of the incidents of that dealing. Thus, 
 A, for any compensation agreed on between him and B, may under- 
 take that C shall pay his debt to B. So A, himself being the credi- 
 tor of 0, may transfer the obligation to B upon any sufficient con- 
 sideration, and guarantee it by parol.^ Accordingly, the plaintiff 
 having a boat in his hands owned by A, upon which he had a lien for 
 repairs, delivered it to A at the defendant's request, and upon his ver- 
 bal promise to pay the amount of the lien, but no new consideration 
 moved to the defendant ; held that his promise was void- by this statute.' 
 
 § 130. It would be impractical, if it were possible, to give all the 
 cases upon this clause of the statute. A few, however, may be given, 
 
 / 
 
 ' 31 N. T. 412, where a large munber of " Id, 
 
 ^^asea is cited and commented on, and 
 tlii^jv appropriate places assigned. 
 
TO AJSrSWEB FOE ASOTIIEe's DEBT. 67 
 
 illustrative of the various classes enumerated in the previous seetion. 
 Among those which are void unless in writing, are these : Where 
 a salesman promised his employer that if his personal friends did not 
 pay for goods they purchased, he -would, and they subsequently 
 bought goods which were charged to them ; ^ or one promises to indem- 
 nify the promisee for becoming security for a third person^ (although 
 it is admitted that this contravenes one of the rules as laid down in 
 21 IT. Y. K., already referred to). Or A employs B to build a house 
 for him, agreeing to pay him therefor in C's notes, and gives him an 
 order on for them, which endorses, " accepted ;" ' or A requests 
 B to sell goods to C, promising verbally to endorse C's notes for the 
 price;* or the promise places the promisors in the position of sureties 
 for the debt, so that if they make the payment they will be creditors 
 of the promisee ;' or a third person verbally guarantees the payment 
 of a promissory note, or its collection ; ^ or a promise to pay the debt 
 of another, in consideration of forbearance to sue the debtor, if the 
 agreement leaves the debt subsisting against him ;'' or to pay accru- 
 ing rent ; * or to indemnify one against endorsements he has made for 
 a third person, or that he' may make thereafter ; ® or by B fo pay for 
 goods sold to A, and on his credit, B promising to see that they are 
 paid for ; ^'' or by a father to pay for goods "sold to his minor son, if 
 the son does not pay for them ; " or by the owner of a lot to pay for 
 building materials already furnished by the plaintiff to a party hold- 
 ing a contract for the land, and put into a house erected by such 
 party ;^ or to pay for labor then commenced and being performed 
 for a third person.** In these and cases similar to them, where, under 
 whatever disguise or state of facts, the agreement is to answer for the 
 debt of another, or for his default or miscarriage, the same is within 
 the statute, and is void unless in writing, subscribed by the party to 
 be charged, and also (except in Kew York), expressing the conside- 
 ration. But if A hires B to do work on his, A's, premises, and B 
 
 ' Daly, 313. ' 4 E. D. Smith, 173. 
 
 » 4 Barb. 131. 21 How. Pr. R. 444 S. '4 Denio, 559. 
 
 C. 12 Abbott, 313. "IDiier, 199. 
 
 '1 Sand. 14. 5Bosw.l00. Ctwfe-a, since " 13 Wend. 123. 
 
 law of 1863. , "5 Seld. 435. See also 3 E. D. Smith, 
 
 * 5 Hill, 483. 411. 
 
 •SBosw. 393. "14 "Wend. 246. 14 Barb. 570. See 
 
 '15 Wend. 343. See 35 Iowa, 389. How.Courtof Ap. Cases,33,38. 34 Barb 
 
 '30 Wend. 301. 4 Denio, 375. Id. 559. 97. 19 id. 359. 45 id. 169. 
 Lalor, 47. See 3 Barb. 209. 8 John. 
 
68 
 
 OF 00NTBACT8. 
 
 employs to do it, wlio commences," and then refuses to complete 
 it unless A will promise to pay liipi, and he does so promise by 
 parol, whereupon finishes the job, A's agreement is not within the 
 statute.* 
 
 § 131. Among the cases which are not void, as arising under the fifst 
 class of the cases which are valid, as given in section 129 supra, are 
 cases of suretyship, as where two persons were sureties, and one of 
 them agreed by parol to indemnify the other from loss.^ So also are 
 cases where the debt is in reality that of the pronCsor, and not of a 
 third person, which will be more particularly referred to in a subse- 
 quent section ; also, where one agrees to indemnify another for sub- 
 scribing towards a minister's salary.^ 
 
 § 132. ^mong those which have been held to be valid under the 
 section class of the cases as given in section 129, these may be men- 
 tioned : Where a judgment debtor delivers property to the promisee, 
 who in consideration thereof promises to, pay the creditor twenty-five 
 dollars if he will discharge his execution, and it is done;* or an 
 officer releases a levy on the parol agreement of a third person to pay 
 the amount ; ' or by an arrangement and transactions between the 
 parties, a mortgage given by a third person is to be treated as paid 
 and satisfied by the new promise ; ^ or the new promise is such that 
 the promissors become the debtors, the old debt being extinguished.' 
 So if A sells goods to B, who being unable to pay, sells them with 
 A's consent to 0, who promises to pay A for them, the debt becomes 
 C's; and his promise is good ; ' or if A agrees to pay the debt if an 
 . execution creditor will discharge his debtor from arrest ; ' or a cred- 
 itor, in, consideration of a third person's promise to pay the debt, 
 gives up a lien of any sort upon goods.*" In these and similar cases 
 the agreement is valid, although not in writing, nor subscribed by 
 the party to be charged therewith. 
 
 § 133. The following cases are embraced under the third class of the 
 cases spoken of in section 129 : A debtor conveys land to the defend- 
 ants, who in consideration thereof promise to pay a debt owed by him to 
 
 '34 Barb. 97. Id. 353. See also 45 id. 
 
 •17 Barb. 141. Also 10 Wend. 461. 30 
 
 169. 
 
 id. 184. 
 
 ' 10 John. 343. 4 Wend. 657. 3 Kern. 
 
 "3BOSW.S06. 
 
 463. 
 
 ' 3 Bosw. 893 and refs. See 19 Ind. 143. 
 
 ■ 17 Jolin. 113. 
 
 » 5 Taunt. 450. 
 
 * 8 Jolm. 376. 
 
 " 1 Bam. & Aid. 397. 
 
 
 "•SEsp. 86. 7 John. 463. 
 
NOT WITHIN THE STATUTE OF FEATTDS, 60 
 
 the plaintiff, with other debts, and they so inform the plaintiff;^ B 
 owes the plaintiff and puts money in the defendant's hands, who in 
 consideration thereof agrees to pay the debt ; ^ B who owes A, sells 
 fifteen tons of hay to the defendant who thereupon agrees to pay B's 
 debt to A;''a person owing a debt, transfers a note in payment 
 thereof endorsing a guaranty which expresses no consideration ; * (this 
 now would be good in JSTew York, since the statute of 1863 before 
 referred to) ; a person on mating a purchase agrees to deliver in part 
 payment, the chattel note of a third person, saying the maker is good 
 and he will warrant that the holder will get the chattel when the note 
 becomes due.^ A loaned money to the defendant who promised to pay 
 it to the plaintiff, in discharge of A's debt to him ; ' these and similar 
 cases are not within the statute of frauds, and need not be in writing 
 nor subscribed b»y either of the parties. If, however, the |)roperty is 
 secured by the promisor from the debtor merely to indemnify him 
 for making the promise to pay the debt, or to be used for that purpose, 
 the promise is void, the rule being that in making the pa,yment 
 pursuant to the promise, the party must be primarily discharging 
 his own debt, while incidentally satisfying that of the debtor.' It is 
 held in California that the guaranty of a promissory note need not 
 express the consideration.' 
 
 § 134. Although the rules above laid down embrace nearly if not 
 every variety of cases that can arise under this clause of the statute, 
 yet a farther reference may be made to some of the decisions upon 
 one of the heads. If,- as we have before said (section 131), the debt 
 is in reality that of the promisor, his agreement does not come within 
 the statute.' Thus, A said to the printer of a newspaper : " If my 
 nephew should call for papers I will be responsible for the papers he 
 takes." The nephew took, the newspapers, the printer making no 
 charge for them against either A or the nephew. It was held that 
 the promise was an original undertaking upon which A was liable, 
 and was never the debt of the nephew." So when a person wrote to 
 a trader to let his brother have goods and charge them to himself, it 
 was held that the debt was that of the promisor.'^ This case may be 
 also sustained on the other ground, that the agreement was in writing 
 
 ' 10 John. 413. See also 35 Barb. 151. ' 12 Jolin. 291. 2 Bosw. 397, 398 ; but 
 
 » 18 John. 12. 3 Easj;. 325. see 139, sub. 3, supra. 
 
 ' 4 Cowen. 433. 9 id. 639. See also 5 ' 34 Cal. 673 and refs. 
 
 Wend. 33 Id. 235. Id. 277. , ' 25 Ind. 453. 15 Mich. 292. 
 
 * 3 Comstock., 325. " 17 John. 114 ; also a similar case. 19 
 
 '31N.Y.336.' 85 Barb. 143. 3818:432 Wis. 331. 
 
 ' 30 N. T. 268. " 1 Duer. 306. 
 
10 OF COHTEACTS. ' 
 
 m.d properly subscribed, and was therefore Talid in New Torlc, and 
 even in those other states where the consideration must be expressed, 
 the consideration being the furnishing of the goods at the request, 
 express or implied, of the promisor, and' that sufficiently expressed in 
 the writing.^ So when a physician was requested by the defendant t6 
 attend professionally upon a third person, the defendant promising to 
 pay him therefor, and the services were performed on the credit of such 
 request and promise, which were by parol, it was held that the 
 defendant was liable.* In these and cases of the same character the 
 sole credit is given to the promisor, and the debt is his alone. But 
 if any credit is to 'be given to any other person, as if I teH A that 
 if he will sell an article to B upon credit I will see it paid, my 
 contract is void, for it supposes a credit to B which I guaranty. 
 If A sells goods to B, on Cs application and promise to see them 
 paid for, but they are charged to B and payments which makes 
 are paid and accepted as on B's debt, it is held that the debt is B's, 
 the credit having been given to him, aad Cs promise to pay it is void.* 
 It is a question of fact in these cases, whether any credit was given 
 to another pers6n. If it appear that the goods were charged to tte 
 third person and not to the promisor, it is strong, but not conclusive 
 evidence against the plaintiff that the promisor was but a surety.* 
 
 § 135. Anotker class of cases arising under this law, but which are 
 valid, are those in which, for the purpose of paying one's own debt, 
 he transfers the note or other obligation of a third person and promises 
 to see it paid; as where the plaintiff, at the request of the defendant, 
 pays the defendant's debt, who., for the purpose of repaying it, trtos- 
 feiTed to the plaintiff the note of a third person, undertaking at the 
 game tirae that it would be paid ; ' or on a similar principle, where 
 A is indebted to B, and to A, A transfers Cs debt to B, to 
 whom C promises to pay the amount, the agreement is valid, though 
 not made as required by the statute of frauds ; * so, if the defendants 
 buy goods of the plaintiff and in part payment transfer to him the 
 note of B, with a guaranty expressing no consideration, and also 
 verbally representing that the note is good ; ' or if, in the purchafie 
 of land, the purchaser agrees to pay a mortgage thereon^^s a part 
 
 • 3 Comstock, 203. 3 Kejm. 333, 888. and refi. See also 6 Rand. 508. 7 Har. & 
 21 N. Y. 315. ; J. 391. 
 
 n Bosw.441. "4 Hill, 178. 
 
 ' 1 Duer, 199, 1 Edmond's Sel. Cas. 100. ' 3 Bam. and C. 843. 
 
 * 3 Stark Bt. (6tb Am. Phil, ed.) 345 ' 23, N, T. 886. 35 Barb. 143. 38 id. 
 
 433. 
 
WITHIN THE STATUTE OF FEATTDS. 71 
 
 of the eonaiderationj ^ these are but instamees of an agreement to 
 pay one's defet in a particnlair manner, and therefore not within the 
 statute.^ 
 
 § 136. The signature of sareties to an instrument so drawn as to 
 express an obligation to pay on the part of the prineipal alone, is held 
 ah effectual promise within the statute, as a blank endorsement, or a 
 signatui-e to a promissory note.' 
 
 § 137. A being insolvent, a verbal agreement was made between B 
 and several creditors, whereby B agreed to pay the creditors ten shil- 
 lings in the pound in satisfaction of their debts, which they agreed to 
 accept and to assign their debts to B. This was held an original 
 contract to purchase the debts.* 
 
 1 138. Under the thiei> class, as given in section 127, it has been 
 held that an ante-nuptial agreement to support the daughter of the 
 wife is void, unless in writing, and (except in New York) expressing 
 the consideration.' The terms of the statute expressly extend it only 
 to pay money or perform some act in consideration of the marriage. 
 A promise contained in a letter, to give a certain fortune with one's 
 daughter in marriage, is a sufficient contract within the statute.* If 
 there is an oral agreement to make a settlement in consideration of 
 marriage, it is not valid, and if such settlement be made by a hus- 
 band indebted at the time, it is fraiaduleat and void as against 
 his then creditors ; but if the intended wife agrees by parol, in con- 
 , fiideration of the marriage and settlement, to discharge the intended 
 husband's debts, and she does so, then his settlement is good as to his 
 subsequent creditors.' 
 
 5 13-9, Under the fourth class, as given in section 127, verbal 
 agrjements for the purchase of growing timber, grass or fruits,' and 
 for ihe sale of a pew in a church,' are within the statute and void. A 
 verbil lease for a term not exceeding a year, although it is to com- 
 mence at a future day, is good ; " and so is a verbal contract to sell 
 hops )r other growing crops. The reason of a different rule in the 
 latter case from that where growing timber, grass or fruits are sold 
 is, ther being the natural products of the soil are considered real 
 
 '10 H.W. Pr. K. 97. 10 Bosw. 336. '3 Kent, 440, &a 33 If. Y. 639. 16 
 
 1 Nevada360. Barb. 186. 
 
 " 38 N. n 187, * 1 Denio, 550. 6 Seld. 114. 4 Keyes, 
 
 '3 Hill, (33. 31Barb.3ia 38icL444. 180. 1 Barb. 543. 13 id. 085. 60 id. 303. 
 
 * 4 Bos. & P. 134. See 5 Wend. 598. 37 How. Pr. R. 337. 4 Kansas, 436. 
 'llPaige257. • 16 Wend. 38. 8 Barb. 130. 34 id. 16. 
 
 • Com. onCon. 73 to 75. See 2 Story "1 Seld. 463. 41 Barb. 186. \ 
 on Con. § lot, i. 
 
72 OF CONTEACTS.- 
 
 estate, while gi-owing crops that are the annual produce of labor and 
 cultivation of the earth are personal estate.* It was held in an early 
 case that a verbal agreement to extend the time for performing a con- 
 tract for the sale of land is within the statute and void? But sub- 
 sequent decisions seem to controvert this position and explain the deci- 
 sion as made on another ground.^ A promise to pay for land sold 
 and conveyed to the defendant is not within this statute, and there- 
 fore need not be in writing ; * even where the payment is to be made 
 by the vendor's assuming and paying certain debts owed by the 
 vendor to third persons, or incumbrances already existing against 
 the land ; ^ but if there is only a verbal bargain for the sale of the 
 lands, no writings having been executed on the subject, the bargain 
 is void ; * and so is an oral agreement to exchange lands. Eut df the 
 agreement has been executed by the one party, and the other has 
 accepted and retained the benefit thereof, he cannot afterward refuse 
 to perform on his part, on the ground of the invalidity of the con- 
 tract.''^ 
 
 Owners of land cannot by parol make a new division line different 
 from that made by their deeds, even if possession is taken under the 
 agreement ; but practical location and acquiescence for a long period, 
 as for forty years, will establish that as the true line, even though it 
 is erroneous and was originally made under an agreement resulting 
 from a mutual mistake as to facts.^ 
 
 A broker, authorized only to close a bargain for the ?ale of real 
 estate, is not authorized to sign his principal's name to the contra|it 
 for its sale.® , / 
 
 A sale of lands by a sheriff on an execution is within the statute 
 of frauds ; ^^ but it seems one by a referee, on a judgment in forebld- 
 sure is not,-and that therefore no writing need be executed in suih a 
 case by either party." 
 
 § 140. There is a variety of property attached to a freehold ^hich 
 is so fixed as to be in readiness to be severed, and capable of jbeing 
 separated from it without violence, wMch the courts hold may )e sold 
 without a written contract ; such as miU-stones, granite, ^d so, 
 
 ' 9 Cowen, 39. 1 Denio, 550. 36 Barb. ' 3 Nevada, 133. 1 id. 860. 
 
 41S. 4 Ind. 146. 10 id. 875. 15 id. 483. " 17 Barb. 614. 
 
 19 111. 631. 11 Bast. 863, See 41 111. 466. ' 4 Comstock, 403. 41 Bar!. 619. 18 
 
 23 Ind. 56. Ind. 133. 17 Ohio, N. S. 363/ 
 
 " 15 John. 300. ' 16 N. Y. 854. Id. 359. 
 
 '341T.Y.867. 13 Barb. 370. SO id. 64. '18 Barb. 60. 
 
 *3Kem. 364. 38 Vt. 858. Id. 731. 18 '» 8 John 530. 33 How 5'. R. 486. 
 
 Ind, 183. 14 Mich. 338. " 36 How. Pr. K. 835. 
 
NOT WITHIN THE STATUTE OF PEATTDS. 73 
 
 probably, buildings and fixtures. When the owner sells them as per- 
 sonal property, the law so regards them. But it must be a sale con- 
 templating an immediate severance of them from the freehold in their 
 present condition.* If the owner severs fixtures from the realty, they 
 become personal property, and may be seized or sold as such.^ , 
 
 § 141. A verbal agreement to pay for improvements upon lands is 
 binding, it not being to pay for an interest in the lands, but for work 
 and labop bestowed upon them.' But a contract for a possession of 
 lands, or a permanent righr to enter them for a particular purpose, 
 as to dig coal, maintain an embankment, to pass over them with 
 teams, to flow them by a pond, or any similar use of them, is within 
 the meaning of the statute. Such rights when granted are termed 
 easements or servitudes. They can only be created by written con- 
 tracts or by implication of law, as by an uninterrupted use of the 
 right for a period of twenty years.* 
 
 § 142. A contract to pay for a mere license to enter upon another's 
 lands for a particular purpose, without any permanent right being 
 contemplated, is not within the statute, as it involves no interest in 
 the freehold, and is not assignable.' So a contract to perform cer- 
 tain services, to be paid for by conveying or leasing to the contractor 
 a piece of land, is not wholly void within the statute. On the ser- 
 vices being performed, a conveyance of the land cannot be enforced ; 
 but a recovery may be had for the value of the services, in determin- 
 ing which the value of the lease,' or of the land, cannot be taken into 
 account.^ In Indiana, however, it is held that such a contract is not 
 within the statute.' A verbal license to insert beams in the wall of 
 a house is good.* 
 
 § 143. A promise to pay the owner of lands a certain sum on his 
 consenting to have a highway laid out across them, is not within the 
 statute, and if the road be laid out and opened, an action can be 
 maintained upon it.° So an agreement by a mortgagee, on the mort- 
 gagor releasing the equity of redemption, to sell the mortgaged pre- 
 mises, and after discharging his own debt to pay over the surplus 
 
 •3 Day, 476. 1 Com. on Con. 75 to 80. '3 Kent Com. 453. 11 Mass. 533. 15 
 
 23 Barb. 330. 35 N. H. 477. "Wend. 380, 393. 10 Barb. 333. 33 id. 
 
 » 8 Wend. 587. 19 Barb. 317. 336. 36 Mo. 116. 19 Ind. 10. 
 
 ' 7 Cowen, 363 and refs. 4 Kent, 450. ' 19 N. T. 399 ; and see 35 Barb, 433. 
 
 * 11 Mass. 533. 7 John. 205. 15 Wend. ' 17 Ind. 134. 
 
 880. 1 John. Ch. 131. Lalor, 308. 21 N. '3 E. D. Smith, 111. 
 
 Y. 118. 29 id. 634. 5 Barb. 379. 10 id. » 10 John. 109. Wend. 461 
 333. 20 id. 311. 31 id. 548. 3 Wis. 350. 
 
 Ifl 
 
ir^ or COKTEAOTS. 
 
 moneys, is valid ; and in sncli case the mortgagor may immediately 
 after the sale maintain Ms action for the surplus, notwithstanding th-e 
 mortgagee sold the premises on credit.^ 
 
 § 144. An agreement to pay for the drawing of a lease, a contract 
 for, or a deed of lands, is not one affecting the freehold. It is there- 
 fore governed by the same rules as all other contracts, the form of 
 making which is not prescribed by the statute. 
 
 § 145. Although by the statute of frauds, a verbal lease of real 
 estate for a longer term than one year is void, yet if the lessee enters 
 under it he is liable to the lessor for the rent as a tenant from year to 
 year and the rent agreed upon by it would be th^, measure of the use 
 of the premises, and the time appointed for paying it the days when 
 it became payable.^ Strictly speaking, he is aifinant at will; but the 
 law construes tenancies at will for the purpose of notice to quit, to 
 be tenancies from year to year.' 
 
 It is held, in Ohio, that if a person takes possession of a lease that is 
 void under this 6tatiU;ei and makes payments of rent, the lease is 
 thereby made valid.* 
 
 § 146. By another section of the statute of frauds, no estate or 
 interest in lands other than leases for a term not exceeding one year, 
 nor any trust or power over or conoerning lands or in any manner 
 relating thereto, can be create!d, granted, assigned, surrendered or 
 declared, unless by act or operation of law, or a deed or conveyance 
 in writing subscribed by the party creating, granting,, assigning, 
 surrendering or declaring the same, or by his lawful agent thereunto 
 authorized in writing.' Under similar statutes a verbal agreement 
 between a landlord and his tenant from year to year to determine 
 the tenancy in the middle of a quarter ; or one by a joint lessee of 
 a salt well to transfer his interest to his co-lessee, have been declared 
 to be void.' But when, in a three years lease, there is an unexpired 
 term of less than one year, that may be surrendered by paroU 
 
 § 147. It is not sufficient under this stStute, that an assignor shall 
 affix his signature and seal to the back of a lease and then agree with 
 a third person that another shall thereafter write an assignment of 
 
 ■■ 10 Wend. 436; also 4 E.D. Smith, 153. 15 id. 405. 5 How. Pr. R, 81. See also 19 
 
 = 3 Cow. 660. .8 id. 336. 5 T. R 471. id. 39. 28 Mis. 400. 
 
 24 Wend. 484. 7 Barb. 199. 35 ib. 249. * 7 Ohio N. S. 157. 
 
 17ib. 154. 31 Ala. 413. 2 E. D. Smith, ' 3 R. S, 134, §6; 3 id. 330. (Banks' 5th 
 
 100. ed). 
 
 •4Cowen,850. 7id. 751. 4 Wend. 337. " 3 Starkie 379. 
 
 ' 28 N. Y. R. 363. 
 
NOT ■VVITnra THE STATUTE OF FEATJBS. 16 
 
 Hie lease to sucli tliird person over the signature and seal.^ The 
 canceling and destroying a lease by agreement of the parties to it, 
 win not opera,te to divest the estate of the lessee. Ifc is a surrender 
 in writing, which the statute requires.' For a similar reason, title to 
 real estate cannot be restored to a grantor by tlie surrender and 
 destruction of his deed, although it is done by the agreement of the 
 parties and for the purpose of restoring the title.' Under such a 
 statute as the one under consideration, a sealed lease may be 
 surrendered by a writing not under seal.* 
 
 § 148. A surrender may however be by c^ration of km, as where 
 a lessee takes a new lease of a portion of the same term which he 
 held ; ^ or the lessor, with th^consent of the lessee, grants a new lease 
 to a third person, who oceupys and pays rent to the landlord ; the 
 new lease being one which creates a good estate for the term for which 
 it is given. If otherwise, the acceptance of it by the lessee wUl not 
 be an implied surrender.^ So where the lessee, having determined 
 to quit, hands the key to the lessor, who receives it, declaring himself 
 not dissatisfied, and enters into possession for the purpose of reletting, 
 placing the placard " to let,^' on the premises, and delivering the key 
 to his agent for the purpose of reletting them, this is a good surrender, 
 by operation of law ; ' but when the landlord merely receives the key, 
 saying, he receives that, but not the premises, there is no valid 
 surrender ; * nor is there one where the premises, by the direction 
 of one who is a siirety for the payment of the rent, are relet for his 
 account and benefit, after his principal has failed and abandoned 
 them.* 
 
 § 149; Where the lessee had sublet the leased premises; and the 
 lessor, with the lessee's consent, received rent from the sub-tenant, it 
 has been held that the substitution involved a surrender, for it was 
 made with the assent of the lessee, which could not be without his 
 surrender.'" So, where after the lessee had sub-let the whole of the 
 premises, by two sub-leases, the lundlord called on the sub-tenants, 
 produced the sub-leases, demanded rent, forbade the payment of any 
 more rent to the original lessee, said he was the rightful landlord, 
 that he had taken the place off the lessee's hands, and collected rent 
 
 ' 2 John. 430. ' 1 E. D. Smith, 147. 
 
 ' 11 Wend. 616. » 3 E. D. Smith, 560. 
 
 = 6 Hill, 409. ' 4 Bosw. 192. 
 
 M6Ind. 319. "SBarn. &A. 119. 44 Barb. 036. 16 
 
 ' 15 Wend. 400, &c. See 89 Mo. 115. Wend. 400, &a Infra, §§ 336, &c. 
 
 '15 Wend. 400. 4 Bosw. 204. 38Eng.L. 
 & E. 409. Sec 19 Barb. 136. 1 Duer. 206. 
 
76 OF CONTEACTS. 
 
 of the sub-lessees.^ But in several of the states, it is held that the 
 mere assigament of a lease by the lessee with the assent M the lessor, 
 and an acceptance of rent from the assignee by the lessor do not amount 
 to a surrender, nor discharge the lessee from liabiUty for rent sub- 
 sequently accruing.^ And so, where a tenant informed his landlord 
 that he should quit the premises, and the latter replied that if he did 
 so, he should let premises on his account and hold him responsible for 
 the rent, and subsequently the landlord sent a person to occupy the 
 house, and the tenant moved out without further remark, it was held 
 that this did not release the lessee.' But' when the tenant agreed to 
 surrender possession to a purchaser of the fee, on payment of a 
 certain sum, this was held to be a valid^greement.* It is, held that 
 where a lessee assigns his interest in the unexpired term to another^ 
 the latter stands in the relation not of sub-lessee, but of assignee to 
 the landlord, and liable, as such, on all the covenants in the lease 
 between the original parties.' 
 
 § 150. By the Revised Statutes "no executor or administrator 
 shall be chargeable upon any special promise to answer damages or 
 to pay debts of the testator or intestate out of his own estate, unless 
 the agreement for that purpose, or some memorandum or note 
 thereof, be in writing and signed by such Executor or administrator, ■ 
 or by some other person by him thereunto specially authorized." * 
 The promise, like all contracts, must be' made upon spme valid and 
 sufficient consideration, as assets in his hands, or forbearance to sue ; 
 if the promise is in the form of a note, that is sufficient presumptive 
 evidence of assets, but not of forbearance, e^ren if the note is pay- 
 able at a future time. This presumption may be rebutted as between 
 the parties thereto by proving that there were no assets ; if the 
 promise was not, in form, a promissory note, but a simple agreement, 
 expressing no consideration, it would be necessary for the promisee 
 to prove one in order to sustain his action.'' 
 
 § 161. "With the exception of such contracts as are required by 
 statutes, or some positive rule of law, to be in writing, or to have 
 certain conditions in their form observed, every agreement between 
 two persons capable of contracting, made upon sufficient considera- 
 tion, is valid, whether it be made verbally or otherwise; and an 
 
 ' 1 Sanrl. 5. » 4 Micli. 106. Infra, § 33 (b.) 
 
 ' 8 "Wis. 141, 43 Penn. 77; See 24 Barb. ° 2 K. S. 113, § 1. 3 id. (Banka' 5th ed.) 
 
 635. E. D. Smith, 861. 301. 
 
 »1 Daly, 485. S. C. 29 How. Pr. K. 259. ' 9 Wend. 273r 13 id. 557. 
 * 1 Daly, 259. 
 
' PEINCIPAL AJTD AGENT. 77 
 
 action may be brouglit by tbe party injured by the failure of the 
 other to keep his part, for the amount which, by its terms, should be 
 paid him, if the contract provides for such amount ; and if it does 
 not, for a sum of money sufficient to compensate him for the damage 
 he has sustained. And if th*e amount claimed do not exceed two 
 hundred dollars the action is cognizable in a justice's court. 
 
 § 152. Every species of these contracts may be established by prov- 
 ing them to have been made by the duly authorized agent of the 
 party ; for it is a maxim in law that each one is bojind by the acts of 
 his agent as perfectly as if he himself had performed them, while 
 such agent is acting in the scope of his authority ; ^ and even, in some 
 instances, when he goes beyond it. / 
 
 § 153. An agent is one employed by any person competent to do 
 any act for himself, to do it for him. The employer is called the 
 princijpal, and the employment an agency? Any person who is not 
 actually disabled by weakness of mind or want of understanding may 
 be an agent. What would constitute a legal disability to contract 
 for himself will not incapacitate one from becoming an agent. Thus 
 infants, slaves, or married women, may act as agents. In regard to 
 married women, however, it is not clear that they may act as agents 
 against the express dissent of their husbands, as to do so might be 
 inconsistent with their duties to their husbands or families.^ The 
 husband may act as his wife's agent, under the recent acts relative to 
 married women .^ 
 
 § 154. The authority may be shown by parol evidence,^ and may 
 be conferred verbally^ (except in one or two special cases), and may 
 be implied from the acts of the parties. Thus, if one knowingly suf- 
 fers another to do acts in his name, as to sell his goods, to purchase 
 goods for him, or to sign his name to mortgages, notes or checks, he is 
 presumed to have given him an authority to do so, and the acts will 
 bind him.' So, even if the note is given in the assumed agent's own 
 name, it may be a question for the jury to say if in doing it, he did 
 not act as agent and not as principal.' If a person has heretofore 
 
 ' 33 HI. 508. 44 id. 263. = 18 Barb. 60. 33 id. 333. 3 "WaUace, U. 
 
 » Story on Ag. § 3. S. 177. 
 
 ' Story on Ag. § 7. Dunlap's Pal. 3 and ' Story on Ag. §§ 93, 94, 338. 5 Seld. 
 
 note (b). 16 Wis. 385. 40. 26 N. T. 505. 30 id. 83. 17 Barb. 
 
 * 36 N. Y. 600. 1 Keyes, 39. Id. 53. 3 id. 171. 18 id. 500. 34 id. 20. 32 id. 17. 41 
 
 539. 4 id. 361 and refs. ; also 37 HI. 197. id. 575. 14 Wis. 553. 18 El. 294. 7 Ind. 
 
 18 Wis. 35. 36 Iowa, 397. 356. 9 id. 317. 
 
 '16 Iowa, 63. "5 861^305. 43 Mo. 74. See 34 Iowa, 
 
 387. 3 Nevada, 314. 
 
78 OF eONTEACTS. 
 
 allowed another to act for him, or to transact certain business for 
 him, or has afterward ratified his acts, and he continues to do the 
 same hind of husiness or transuetions, it will be presumed that hia 
 agency continues, and proof of the prior transactions is competent on 
 &e question of agency in the subsequent one.-^ If aii agent or ser- 
 vant performs an act such as was for the manifest benefit of his prin- 
 cipal or master that it should be performed, the assent and authority 
 of the principal or m'aster will be implied.' Several instances of 
 a special agency or employment do not prove a general one.' But 
 while it is necessary to prove the principal's knowledge of, or subse- 
 quent assent to the acts constituting the agency, it is not necessary 
 that the person dealing with the agent should have knowledge thereof 
 at that time.* 
 
 We have spoken of special cases where verbal authority is insuffi- 
 cient ; they are those where it is required by statute that it be in 
 writing, as in certain instances in the statute of frauds, or where 
 the authority is to execute a conveyance, or to do any act which is 
 required to be by deed; in which case the authority of the attorney 
 or agent must be conferred by deed ; but if the writing or act would 
 be eifectual without a seal, the addition of a seal will not render an 
 authority under seal necessary ; and if executed under a parol author- 
 ity, or subsequently ratified or adopted by parol, the instrument or 
 act will be valid and binding on the principal.* " 
 
 A purchaser from, an unauthorized agent cannot sustain his purchase 
 on the ground of a/pparent authority, except on proof of good faith 
 and the payment of a proper consideration.* 
 
 The doctrine of implied agency, where it arises out of the negli- 
 gence of the principal, is based upon the principle of esto^ypel m 
 
 % 155. Where an authority is confided to several persons for a pri- 
 vate purpose, without giving them power to act separately, or giving 
 a majority the power to act, they must all concur or their acts will be 
 void.^ But it is otherwise in matters of a public concern, where 
 power for public purposes is delegated to a certain number ;' in such 
 
 '4 Kern. 439. 16 N. Y. 835. 14 Barb. = Dunlap's Paley, 157, &c. 1 Seld. 329. 
 
 358. 15 id. 333. 40 id. 292. 41 id. 575. 5 Dutch. 74. 40 Mo. 69. 
 
 44111.114. 20 Iowa, 354. 4 Nevada, 78. ° 1 Black, U. S. Ifl2. 
 
 12 Minn. 255. '34N.T. 30. 
 
 nBosw. 321. » 6 John. 89. 33 Barb. 137. 33 id. 306. 
 
 = 9 Iowa, 487. 5 Minn. 463. 10 Wis. 271. 1 id.' 597. 25 
 
 '17 111. 273. See 3 Hill, 73. Iowa, 115. 
 
 • 1 Wis. 597, and 10 Ohio, N. S. 257. 
 
PEmCIPAE AND AGENT. , 79 
 
 cases ia New Tork, by statute, a majority can act o.i a meeting of 
 all the persone tp whom the power is delegated, unless a different 
 provision is made by statute.^ At common law the rule is that 
 where the act is a minifiterial one, a majority must concur and unite 
 in the performance of the act, but they may act separately ; if the 
 act is a judicial one, that is, requiring the exercise of discretion and 
 judgment, the persons to whom the authority is delegated must meet 
 and confer together, and be present when the act is perfoi'med ; or 
 at least a majority must meet, confer and be present after all have 
 been notified to attend ; ^ and it will be presumed, in the absence of 
 evidence to the contrary^ that all were present and took part in the 
 proceedings.* In several instances, -statutes have changed the com- 
 mon law rule.* 
 
 § 156. A speeicd agency is an agency to do a single act, or certain 
 specific acts only, as to sell my horse with or without a warranty, or 
 to purchase a horse for me ; and it must be strictly pursued.^ But 
 if the principal, by his declaration or conduct,, has authorizeS^Tshe 
 opinion that he has given more extensive powers to his special agent 
 than were in fact given, he is liable accordingly.* On the other hand, 
 if there is no such declaration or conduct, one who deals with a spe- 
 cial agent is bound to acquaint himself with the actual extent of his 
 authority.' This indeed is the case in any agency.' One case holds 
 that where a special agent does what his authority permits ; and more, 
 the excess only is not binding on the principal.' 
 
 § 157. A general agency is an authority either to transact all 
 manner of business for another, which is rare, or, as is more common, 
 to do for another all acts connected with a particular business or 
 transaction. The principal is bound by all the acts of his general 
 agent which are ostensibly within the scope of his authority, notwith- 
 standing they may be in violation of hig private instructions.^" It h 
 liardly necessary to add, that if the person dealing with an agent knows 
 that he is violating his instructions, or that his powers are limited, or 
 
 '3 B. S. 555, § 37. 3 id. (Banks' 5tli 34 Barb. 371. 9 Iowa, 549. l3 id. 314. 
 
 ed.)869, §39. 13Ind. 306. 33 id. 36. 19111.456. 
 
 ''33Bart). 140, 400. 33 id. 176, 304. 38 » 34 III. 68. 18 Iowa, 499. 13 Minn, 
 
 id. 310. 31 id. 313. 10 "Wis. 371.. 355. ' 
 
 » 33 Barb. 400. 31 id. 312, '16 Iowa, 74. 
 
 * 36 N. T. 441. 3 Keyes, 499. ' '° Dunlap's Paley, 199, &c. and notes. 
 
 ''4Seld. 398. 4 Kehi. 418. 41 Barb. Story on Ag. §§ 126, &(i. 1 9alk. 96. 3 
 
 446. 7Ind. 356. 13 id. 308. Kern. 600. 30 Barb. 493. 36 id. 564 33 
 
 "3 Kent, 630. 1 Peters, 390. 4 Cowen, id. 11. 34 id.. 607. 30111.650. 17 Iowa, 
 
 645. 276. 30 id. 354. 1 Oregon, 11'5. 
 
 ' 3 Story on Ag. §§ 126, &c. 4 "Seld. 398. 
 
80 , OF CONTEACTS. 
 
 has reason to suppose they are, or at least has such notice as to put him 
 on inquiry, he must run the risk of the principal's disavowing the 
 act of the agent.^ 
 
 § 158. "Wherever an authority, express or implied, is conferred 
 upon a general or a special agent, it is construed to include all the 
 necessary or usual modes of so executing it as to accomplish the 
 object of the agency ; " as, where I authorize a person to sell my horse, 
 or my slave, his representations or warranty at the time of the sale 
 as to his soundness will bind me;' or when an agent is employed to 
 sell negotiable paper, he may represent it as a business note and 
 valid ; * an agent to sell goods may receive payment for what he sells, 
 and make any deductions, in receiving payment, from the amount for 
 which they were sold;^ an authority to deliver freight includes the 
 authority to make terms in regard to the delivery;^ an authority 
 to sell lands, authorizes the agent to contract to convey;'' and one 
 to purchase goods on credit, authorizes the necessary representation 
 as to the solvency of the principal.' But in regard to a special 
 agent, while, if there are no restrictions, he may employ the 
 necessary or usual modes of accomplishing his agency ; as, for 
 instance, may warrant," (but not when the property is such as is usually 
 sold without warranty) ; yet, if he is restricted in any respect, as, if 
 he is forbidden to warrant, his warranty, or other act of disobedience, , 
 will not bind his principal.^" 
 
 Among those cases where it has been held that the agent has 
 exceeded his authority these may be noticed^: The power of an agent 
 to insure his principal's property does not authorize him to insure in a 
 mutual company which wOuld make his principal an insurer of others ;" 
 an agent to receive applications for insurance, has no authority to bind 
 the company by representations as to its capital, &c. ; nor one to 
 lease or sell real estate, the power to make representations in regard 
 to the title ; ^ an agent to collect certain debts can only receive money ; 
 a merchant's clerk cannot purchase goods abroad on the credit of his 
 principal; one having specific authority to buy on accoimt of his 
 principal, cannot borrow money for that purpose on the credit of his 
 principal ; an authority to buy property will not authorize the agent 
 
 '8Hffl, 263, 379. 5 Mass. 36, 37. 3 " 20 lU. 375. 
 
 Head, 116. ' 3 Minn. 235. 
 
 " Dunlap's Paley, 200 to 303, note A, ' 20 Barb. 494. 
 
 and 309. 13 "Wend. 518. 31 id. 379. 19 » 36 N. Y. 79. 
 
 N.Y. 170. "7 Barb. 53. 
 
 » 6 Hill, 336. 7 Barb. 53. 34 id. 607. "36N.T.117. 
 
 * 35 Barb. 427 " 3 "Wis. 354. 5 id. 379. 
 
 » 6 Bosw. 344. 3 Duer, 303. 
 
PEINCIPAL AND AGENT. 81 
 
 to sell or exchange it ; tlie one employed to drive cattle from one place 
 to another, has no power to sell any of them because they become foot 
 sore and unable to travel ; an authority to sell for cash does not 
 authorize taking a check payable the next day, though that be 
 a customary vray of making cash sales at that place ; nor does an 
 authoi-ity to sell, give power to pledge for the agent's own debts ; noi 
 one to look up property lost by a carrier, authorize the agent to settle 
 the damages with the carrier ;^ authority to collect a bond, is not an 
 authority to take notes or property in payment ;' one to sell property 
 will not authorize its exchange for other property ; and a general agent 
 cannot, without special authority, consent to an arbitration of his 
 principal's matters.* An agent sent to get goods, for which his 
 principals would settle when they saw the vendor, cannot fix the 
 ^ price of the goods with the vendor ; * an agent to loan money is not 
 authorized to make collections ; ' nor can one, employed generally to 
 transact business for a principal, sign the principal's name to negoti- 
 able paper.^ 
 
 § 159. The representations, admissions and concealments of an 
 agent, made at the tvme, and constituting a part of the transaction, 
 and being inducements to the contract, are binding upon the principal, 
 though, if made at another time, and without forming part of the 
 transaction, they are not.' The same rule applies to notices to an 
 agent.^ And before the acts or admissions of an agent can be given 
 in evidence, the fact of his agency must be prove aliwnde. His own 
 declarations to that effect are insufiicent.' 
 
 § 160. An agent, ordinarily, and in the absence of express author- 
 ity, or a fair presumption of one growing out of the particular trans- 
 action, or the usage of trade, cannot delegate his authority to another ; 
 for it is a maxim of law that the delegated power cannot be transfer- 
 red by the delegate.^" But this rale does not extend so far but that 
 an agent may autliorize another to perform a mere ministerial or 
 
 'SKeyes, 461. 10 Ind. 8. 12 id. 306. " 30 Iowa, 354. 
 
 18 111. 96. 7 Wis. 630. Dunlap's Paley, ' Story on Ag. § 135. Dunlap's Pal 
 
 37 n. a. 313, 313. 15 Iowa, 591. 14 id. 367. 13 Wend. 518. S3 id. 360. 19 Barb. 
 
 336. See, also, for similar cases of an ex- 310. 5 Duer, 393. Infra, § 1403. 25 Ind. 
 
 cess of authority, 8 Minn. 348. 31 111. 200 185. 38 Mo. 168. 
 
 45 id. 193. 33 Ind. 198. 17 Wis. 477. 33 '31031.693. 
 
 id. 403. " ' 1 Wis. 33. 19 111. 456. 8 Iowa, 133. 
 
 ' 33 lU. 470. 14 Cal. 396. 11 Mich. 185. 5 Minn. 339. 6 id. 484. 11 
 
 » 10 Mich. 357. 39 111. 433. id. 39. 13 id. 255. 20 Wis. 520. 
 
 * 38 N. T. 403. " Dunlap's Paley, 175. 3 Kent. 633. 1 
 
 " 34 111. 68. Keyes, 347. 39 Texas, 150. 
 
 II "" 
 
82 OF C0NTEACT8. 
 
 mecliaiiic^l act by his direction, and involving no discretion, as to, 
 sign c.ertain acceptances, or to write a letter at the dictation of the 
 agent who is temporarily disabled.^ 
 
 An agent must transact the business intrusted to him in the name 
 of his principal.^ But in regard to the form in which this shall, be 
 done, there is a well defined distinction between cases where the exe- 
 cution of the authority is required to be under seal, and those where 
 it is not, or may be not under seal, but by parol' only. In the former 
 case the agreement must bo executed in the name of the principal, and 
 it must purport to be his deed and not that of the agent. Though in 
 the body of it, it is the principal's agreement, yet if it be signed by 
 the agent in his own name, the principal is not responsible.' But in 
 the case of agreements which need not be, or are not under seal, but 
 are either verbal or in writing, the rule is a different one ; and in 
 such cases, if- it appear either in the body of the instrument, or by 
 the signature of the person executing it, or from his acts or conver- 
 sation, if the agreement was verbal, that he was acting for another, 
 whom, and not himself, he intended to bind, and for whom he was in 
 reality so acting, then he is not personally responsible. If, on the 
 other hand, the agreement was in his' own name, and there was 
 nothing to indicate that he made it for another, or that it was 
 intended to be anything other than a personal obligation, then he is 
 bound personally ; * and if the agreement is in writing, proof cannot 
 be given to show to the contrary.' While there is some conflict in 
 the cases, and the above distinctions have not always been strictly 
 observed, it is believed that the rules above laid down, will cover and 
 dispose of the various questions which can arise under tliis branch of 
 our subject. It may be added that if the body of a sealed instrument ' 
 purports to make it one by the principal, but it is signed by the 
 agent in his own name merely, and is not iu any way executed in the 
 name of the principal, neither principal nor agent is bound thereby.^ 
 
 § 161. A factor is an agent or broker employed to sell goods or 
 
 ■ Dunlap's Paley, 175, n. a. 1 Hill, 501. 30 id. 218, 233. 40 id. 119. 136 id. 179. 
 
 1 Keyes, 347. 23 Barb. 400. 1 Daly, 538 41 id. 586. 4 Greene, 428. 5 Cal. 487. 7 
 
 8 OMo, N. S. 370. See 18 111. 445. 8 Md. id. 535. 34 Mis. 534. 27 id. 163. 31 id. 
 
 lOS- 193. Id. 224. 1 Iowa, 426. 10, Ohio N. 
 
 ' Infra, § 170. Dunlap's Paley, 180. 1 S. 444. 1 Minn. 404.- 5 id. 463. See 5 
 
 Oregon, 272. C Minn. 484. Seld. 171. 17 Ind. 495. 
 
 = 4 Hill, 351. 4 Barb. 274. 22 id. 239. ' 39 Barb. 193. 4 Duer, 29 ; but see 6 
 
 1 Duer, 96. 4 id. 29. 25 Mis. 313. Seld. 305. 40 Barb. 136. 
 
 * 4 Hill, 851. 1 Kern. 200. 3 id. 309 " 23 Bai-b. 243 and refs. 35 id. 300. See 
 
 21 K Y. 179. 4 Barb. 374. 23 id. 176. 45 111. 79. 
 
OF FACTOES. 83 
 
 negotiate bills upon commission for his principal, having the posses- 
 sion of them for that purpose.^ His general duty is to pursue strictly 
 the directions of his principal,' unless absolute necessity, or in some 
 instances a pressing emergency requires him to deviate from them, 
 as where the goods are perishable ; in which cases although there are 
 some authorities which seem to hold otherwise, it seems to be settled 
 that a deviation will be allowed. So rigid is the rule that a factor 
 is not allowed agaihst orders to sell at the current price, to hold on 
 to goods because the market is dull, even if he has a lien upon them 
 for advances.' And so, although he has such a lien, he cannot disobey 
 ' instructions not to sell, or not to sell- below a certain price, unless the 
 principal, after reasonable notice to pay the advances, fails to do so.* 
 In the absence of instructions the factor is protected, if he acts accord- 
 ing to the best of his judgment and in good faith, and exercises rea- 
 sonable care and prudence.^ As a general rule the factor cannot dele- 
 gate his powers to another*; though in one case a supercargo in a 
 foreign port, who was iu ill health, was allowed to delegate his power 
 to another to prevent the failure of the objects of the voyage.' 
 
 § 162. A factor at common law has no power to pledge or other- 
 wise dispose of the goods of his principal to secure or satisfy his own 
 debt ; and if he makes such disposition of them, the title remains in 
 the principal, and he may reclaim the goods of the pledgee although^ 
 he was not aware that they did not belong to the factor. And in 
 such cases the principal is not bound to tender to the pledgee any 
 balance which he may owe the fector.* He may also maintain an 
 action against the factor for taking the goods.' If, however, the" 
 factor have a lien upon the goods for his commissions or advances, 
 they may be pledged by him for the amount of such lien, with notice 
 of it to the- principal,^* and then he must discharge the lien before he 
 can reclaiin the goods, provided the pledgee is under the authority of 
 the factor, and the possession of the pledge is for the purpose of 
 securing and carrying out the object of the original consignment." 
 
 ■ Dunlap's Paley, 13. ° Sel. Notes for Dec. 1853, p. 14. 13 
 
 ' 1 John. Caa. 437. n. Com. on Con. Iowa, 532. 1 Storjron Gon. § 363. 
 
 236. 31N.T.B.386. 31 id. 676. 33 Miss. ' 3 Jolin. Ch. 167. 
 
 177. ' Com. on Con. 387. Dunlap's Paley, 
 
 '6Cowen, 128. 3 Seld. 186. 213. 2Bosw.437andrefs. IE. D.Smith, 
 
 * 3 Comstock, 62. Id. 78. See28N. T. 34, 35 and refs. 
 
 67. ' 14^ John. 138. 5 T. K. 604. 
 
 ' 1 Stray on Con. § 359. 3 Caines, 226, '° 7 East. 7. 4 John. 103. 19 Wend. 
 
 31 N. T. 380., 431. 
 
 " 2 Bosw. 407. 1 E. D. Smith, 34. 
 
84 OF OONTEACTS. 
 
 These rules, it is said, apply to teclinical factors only, and not to 
 others.^ 
 
 [§ 162a,] But tlie rigid rule of the common law has been modified 
 in England, and in several of the states of the Union, by what is 
 known as the factors acts ; that of New York (Laws of 1830, p. 203, 
 oh. 179, and subsequent statutes) provides, generally, that factors 
 having property intrusted to them for sale, or having the bill of 
 lading, custom-house receipt or ware-house keeper's receipt therefor, 
 are deemed the owners thereof, so far as to give validity to their -sale 
 or disposal thereof, for money advanced, or negotiable instruments 
 or other written obligations given upon the faith thereof ; but those 
 who take the property as security for the factor's antecedent debt 
 acquire no greater right than he possessed ; ' nor are those protected 
 who had notice that thefactor was not the true owner of the property.* 
 If the bill of lading shows that the goods did not belong to the factor, 
 and that he has the right to hold them only, his sale will pass no 
 title ; * but the mere fact that the invoice shows that the goods belonged 
 to the shipper, is not such a notice of the want of title as wiU avoid 
 a lien for advances.^ 
 
 § 163. l^either the goods of the principal, nor the notes, bills or 
 securities taken by the 'factor upon their sale, are subject to his debts, 
 but they remaui the property of the principal. It is otherwise, 
 however, with money which he has received for the goods.* 
 
 § 164. Where a factor sells the goods of his principal without 
 disclosing his agency, and takes the note of the purchaser payable to 
 himself or bearer at a future day, and before maturity transfers the 
 note to the principal, payment by the purchaser to the factor after 
 the transfer and before the note falls due, is no bar to the recovery 
 by the principal as endorsee against the maker of the note. But had 
 there been an existing demand due from the factor to the purchaser 
 at the time of the transfer of the note, such demand might have been 
 set-off in an action brought by the principal ; and in an action by 
 the principal to recover for goods sold by his factor without disclosing 
 his agency, the purchaser may "set-off any demand he may have 
 against the factor.' 
 
 ■5Cal. 404. Bid. 383. Hid. 393. •241T. T. 531. 
 
 "Laws of 1830, p. 203, § 4 3 E. S. '1 Com. on Con. 337, &c. Willes R. 
 
 " (Banks' 5tlied.) 76. 400. 
 
 'SDenio, 473. 3 Seld. 374. 2 Bosw. ' 10 "Wend. 492. See S. P. 34, id. 458. 7 
 
 401. Bosw. 339. 
 * i Bosw. 155. 
 
OP FA0TOE8. 86 
 
 § 165. The general rule is, that a factor rrust sell the goods of his 
 principal for cash. But where it is the general usage of the trade to 
 sell upon credit, an authority to sell upon the customary credit will 
 be inferred as between the principal and factor.^ And in such a case 
 the factor must use ordinwry diligence to ascertain the solvency of 
 the purchaser, and not sell on unreasonable time. This degree of 
 diligence is such as a prudent man should exercise in conducting his 
 own affairs.' 
 
 § 166. Where the usage of the trade is not to give credit, the 
 factor cannot sell on credit without an express authority. Thus a 
 stock broker cannot sell upon credit, for that is not the usual course 
 of his business.' Nor can the agents of a state sell its stock on credit, 
 even if usage allowed that of private individuals to be so disposed of.* 
 
 § 167. Payment to a factor or agent at the time of the sale is valid, 
 unless the vendee has been forbidden by the principal to pay the 
 factor or agent ;* and the factor has the right to pay over the proceeds 
 to his principal although he may know that the principal has promised 
 them to his creditors.^ If a factor, without disclosing his agency, 
 sells his principal's goods, taking a negotiable note therefor, and 
 then transfers it to his principal before its maturity, and the principal 
 afterward sues it, the defendant cannot prove, in defense to any part 
 of the amount, a payment made by him to the factor after he had 
 transferred the note.'' 
 
 § 168. There are some rules recognized in relation to factors which 
 do not apply to ordinary agents. The factor may sell his principal's 
 goods in his own name ; he may bring an action for the price of the 
 good's, and if he has a lien upon the price for his compensation it will 
 not be prejudiced by any set-off which the purchaser may have against 
 his principal ; and he may bring an action in his own name for 
 injuries to the goods, or to obtain their possession from one who has 
 wrongfully taken or detained them. The reason for these rules is, 
 that the factor has an interest in the goods for his commissions and 
 advances ; and in all cases where an agent has an interest in the 
 goods, coupled with his agency, the same rules, will apply to him.' 
 
 § 169. An agent acting within the scope of his authority and 
 
 ' Dunlap's Paley, 26, &c. ; 212, &c. 8 ^ * 8 Paige, 527. . 
 
 Paige, 527. 2 Kent, 622. 1 Story on Con. 'Dunlap's Paley, 270. 6 Bosw. 344 
 
 § 354. and refs. 
 
 " Story on Bail. §§ 455, &c. 1 Com. on ' 27 Mis. 179. 
 
 Con. § 236. 3 John. -319. 6 id. 69. ' 10 Wend. 492. 
 
 '1 Camp. 258. 2 Kent, 622. 2 Dunlap's » Story on Con. § 352. 18 John. 24. 
 
 Paley, 212. 24 "Wend.*169. 5 Sand. 267. 7 Mass. 319. 
 
00 OF CONTEACTS. 
 
 disclosing the name of his principal at the time of making the 
 contract, or the fact of his agency being known, is not liable ; and in 
 this case there is no difference between an agent of the government, 
 or of a private person.^ So, where money has been paid by mistake 
 to an agent, and before notice of the mistake, he pays it over to his 
 principal, the principal, and not the agent, is liable for it ; but if he 
 had notice of the mistake it would be otherwise ; and if the money 
 is not paid over the agent is liable for it.^ If the agent, however, 
 has obtained property wrongfvlly, he cannot defend an action by the 
 injured party, on the ground of payment over of the money to his 
 principal.^ What is a payment is sometimes a question of doubt. 
 If the agent has merely credited the money in his account with his 
 principal It is no payment;* but if he has credited it, and the 
 accounts have been subsequently so settled, it is a payment to the 
 principal;* a government agent was held not liable for money 
 received by him erroneously, when it appeared that it had been paid 
 over by him to his superior.* But if he had compelled the payment 
 he would have been liable.' An agent of the government, known 
 to be acting as such, and not making himself liable by anything 
 amounting to a personal contract, is not answerable for costs, nor for 
 articles furnished by his order, even though the terms of the contract 
 be such as might, in a case of a private nature, involve him in a 
 personal obligation.^ Such agents can never go beyond their 
 authority, of the extent of which all persons must take notice.' If 
 one acts as agent, an action cannot be maintained against him for 
 want of authority "without proving that he had no authority ; the onus 
 being on the plaintiff.^" 
 
 § 170. Agents become personally liable, on contracts made by 
 them, in the following cases : 1. Where the principal is not known ; 
 as where a factor or servant purchase goods, or enters into contracts 
 generally, A^ithout disclosing the fact that he does it for his principal," 
 or contracts for an undisclosed principal.^ 2. When there is no 
 
 '7 John. 179. 1 Wend. 173. 3 Hill, 137. • Dnnlap's Paley, 370, &c. SKait,633. 
 1 Sand. 209. 39 m. 313. 36 id. 83. 39 1 T. R. 173. 33 Barb. 611. 4 Minn. 126. 
 Cal. 568. 9 id. 173. 7 Iowa, 509. 15 "Wis. 355. 
 
 = 17 Micli. 500. 31 id. 97. 
 
 ° 7 Wis. 595. » 10 Wis. 518. 
 
 " 3 Sand. 213 and refs. " 19 Baxb. 74. 
 
 • 1 Wend. 173. " 18 Wend. 435. 9 Barb. 538, 533. 45 id. 
 
 •4T. 11.553. 470. 6 Ind. 436. 4 Greene, Iowa, 438. 42 
 
 ' 9 Jolin. 201. lU. 339. 
 
 ''38N.Y.369. 
 
PEINCIPAL AJSTD AGENT. ' SY 
 
 responsible principal (except in tlie case of public agents) ; as where 
 A contracts with B to pave the streets in Putney, and B agrees on 
 behalf of the parish to pay him. The parish not being a body that 
 could be sued, B is liable on the contract.' 3. Where the agent 
 contracts in his own name without stating that he acts as agent ; ' or, 
 the fact of his agency being known, the person with whom he is 
 dealing prefers ^to, and does take his personal obligation, rather than 
 that of his principal ; ' or, while nominally contracting as agent, he 
 really contracts in his own name, the designation in the body of the 
 contract, or the addition to his signature to a note, or other writing, of 
 the word " agent," or other similar designation, being a mere descriptio 
 personarum^ 4. "Where he exceeds his authority,' or acts without 
 authority (his liability in such a case resting upon the ground that 
 he warrants his authority, and not that the contract is to be'deemed 
 his own) f there may be instanijes where neither the principal or 
 agent are liable on the contract itself; and the agent, when liable, is 
 made so on this groimd of a breach of his warranty of authority.' 
 "Where the agent exceeds his authority, the party with whom he con- 
 tracts may hold him responsible for the whole contract, and need not 
 resort to the principal for so much of it as the agent had authority to 
 make.' But, it is held in some of the states, that if one acts as agent 
 without any authority, he is not personally bound unless his agree- 
 ment contains language by which he binds himself.' 
 
 § 171. An auctioneer has such an interest in the goods he is selling, 
 that he may maintain an action in his own name for the price of the 
 goods sold;" but the purchaser may set off against it a debt due to 
 him from the principal." He is personally responsible for the deposit 
 money where a good title cannot be made to the purchaser, and in 
 damages if he has not disclosed the name of the principal. 
 
 § 1T2. "Where warranted by the usual course of business, payment 
 to an agent while his authority continues, and without a prohibition 
 
 '3 Kent, 630. Dunlap's Paley, 371, 374. '3 Kent, 630. 33 N. Y. 6lO. 34 Mia. 
 
 = 3 Kent, 630. 31 Barb. 17 39" id. 193. 534. SO id. 384. 
 
 3 Duer, 366. 4 id. 39. 37 Mis. 163. 4 » 36 N. Y. 117. 38 Barb. 644. 31 id. 
 
 Greene, Iowa, 438. 9 Ind. 389. 36111.83. 196. 35 id. ^00. 16 Iowa, 163. 31 "Wis. 197. 
 
 39 Cal. 568. See 31 "Wis. 197. ' See 38 N. Y. 369. 33 Barb. 339. 35 
 
 = 18 Barb. 143. 39 id. 565 and refs. 34 id. 300. See 38 Mo. 345. 
 
 Iowa, 419. 3 Nevada, 314. 170Mo,lir.8. » 11 Wend. 477. 
 
 215. » 32 111. 533. TBiaxM.iX. 
 
 * 5 Seld. 571. 35 Barb. 200. 10 Ohio, ■» 1 H. Bl. 81. 16 Jolin. 1. 
 
 N. 8.' 444. 5 Minn. 463. 9 Ind. 224. 17 " 7 Taunt. 243. 
 id. 495. Ante, §160. 3 Nevada, 314. 13 
 Minn. 106. 17 0]iio,N. S. 125. Id. 315. 
 
88 • OF CONTEACTS. 
 
 by the principal, is good, aad operates to discharge the liability 
 although the agent does not pay over the naoney to the principal.^ 
 Simply placing the amount to the agent's credit is not a payment;' 
 and, generally, the agent, in the absence of express authority, or 
 some usage, can only receive money in payment.^ "Where there is a 
 note or other written security the debtor must see that the agent has 
 it in his possession, or is, authorized to receive the money, or the pay- 
 ment will not bind the principal.* 
 
 § 1Y3. The authority of an agent may terminate by the death of 
 the principal,^ the completion of the business he was to perform,' the 
 limitation of time for which he was appointed,'' a change in the state 
 or condition of the principal, such as the dissolution of a partner- 
 ship,* or a revocation of the agency.' In this last case, the authority 
 continues until notice of the revocation, and this notice may be given 
 by the agent or the principal.^" The authority of an agent to draw 
 the moneys of a firm • from bank, and apply them to the uses of the 
 firm, continues, in a qualified form, after the death of one of the 
 partners.^^ A power of attorney to confess judgment is not revoca- 
 ble by the party who gives it.'^ An assignment of a judgment revokes 
 the authority of the plaintifi's attorney to collect it.^* A joint 
 authority to two or naore, terminates by the death of one." A power 
 of attorney, constituting a part of a security for money, and necessary 
 to give effect to it, or where given for a valuable consideration, is not 
 revocable.''^ If the principal be an unmarried woman, at common 
 law hfer marriage would determine the authority of her agent ; ^^ but 
 under the, provisions of the statutes for the protection of the rights of 
 married women, the reason of the rule seems to have ceased, and it 
 is not certain that the agency would not continue. 
 
 § 1T4. From the foregoing propositions it is clear, that if my 
 servant has authority to buy and sell goods for me, he is my general 
 agent for that purpose, and his contracts in my name will bind me : 
 
 » 11 East. 38. 19 Barb. 9. 34 id. 612. '2 Kent, 643. 
 6 Bosw. 844. 3 E. D. Smith, 71. 3 Ind. • 3 Kent, 643. 36 Barb. 324. 
 407. 45111.79. ''19N.T. 9. 14 Iowa, 326. 
 
 ^ 3 E. D. Smith, 71. '■' 4 E. D. Smith, 165. 
 
 '13Cal.l39. 13 Iowa, 356. " 33 N. Y. 553. 
 
 * 1 SaUt. 157. 13 East, 432. 18 Iowa, " 15 Ind. 348. 
 499. 45111.460. 46 id. 243. "27111.149. 
 
 » 2 Kent, 643. 7 Barb. 412. 34 id. 539. » 3 Kent, 645. 
 5 Sand. 376. 8 Brad. 277. 26 Mis. 311. " 17 111. 531. 8 Cal. 632. 83 id. 609 3 
 
 15 Cal. 12. 28 id. 645. 13 Ohio, N. S. Kent, 643. 
 574. 17 Iowa, 73. "2 Kent, 645. Dunlap's Paloy, 189 and 
 
 ' 3 Kent 643. 23 Ind. 199. notes. 
 
PEEfCIPAL AND AGENT. 89 
 
 and if am accustomed to let him purchase upon credit, I am answera- 
 ble, though in the particular instance he buy without my orders, or 
 even contrary to them. So, if I give him money to make a purchase, 
 and he converts it to his own use and purchases the article on credit, 
 where i have pei-mitted him to deal on credit; and where I send 
 him to you once to deal on credit, I am liable if he deal with you a 
 second time against my orders, unless I have given you notice.^ 
 
 § 115. A master is also liable for goods or services procured by his 
 servant, which come to his use and benefit with his assent ; as where 
 the servant, not being supplied with money, purchases on credit hay 
 for his horses, or food for his table, and this even if he knew nothing 
 of the contract, and it was the only one the servant ever made. But 
 when I forbid you to trust my servant and you violate the direction, 
 it is at your peril, and I am not liable.' 
 
 § 116. In all these cases it must appear that the master had either 
 expressly or by implication delegated an authority to the servant, in 
 order to render him liable. 
 
 [§ 1Y6(Z.] Although, at the time of performing an act as agent, there 
 was no authority to so act, y«rt the assumed principal may afterward 
 ratify it, as an entirety and as it stands ; and, when this is done, such 
 adoptive authority relates back to the time of the original transaction, 
 and is deemed in law to be the same for all purposes as if it had 
 been given before.' Such subsequent ratification may be express or 
 implied, as by acquiescence * (the acts of the principal being liberally 
 construed in favor of the ratification'); but it must be with full 
 knowledge of all the circumstances of the case, 'or the means of 
 acquiring such knowledge ; * and, when it takes place, releases the 
 agent from aU liability to his principal for his unauthorized act ; ' 
 J though it does not discharge him from his obligation to others.^ Among 
 other evidences of ratification are the payment, by the principal, of 
 moneys due on the agreement made in his name, by the unauthorized 
 
 ■ 1 Strange, 506. HofF. 364. ' 1 Gaines, 526. See 15 N. Y. 579. 
 
 " 1 Com. on Con. 318 to 235. " Dunlap's Paley, 173 and notes. 4 Seld. 
 
 ' 5 Hill, 107, 113. 15 N. Y. 577. 31 398. 6 id. 313. 3 Kern. 587. 33N.Y.648. 
 
 id. 611. 36 id. 83. 3Keyes,107. 11 Barb. 34 id. 475. 36 id. 63. 40 Barb. 648. 7Cal. 
 
 655. 13 id. 53. 7 Ind. 547. 37 Mis. 163. 171. 10 id. 354. 23111.470. 5 Minn. 339. 
 
 30ni.l91,639. 35id.41. Id. 544. 1 Ore- 13 id. 355. 13 Iowa, 314. 14 Wis. 553. 35 
 
 gon,115. 16 Iowa, 74. 30 id. 354. lU. 41. 41 id. 333. 44 id. 335. 4 Nevada, 
 
 * Dunlap's Paley, 171, notes. 19 N. Y. 78. 
 
 318. 37 id. 546. 33 Barb. 333. 40 id. ' ' Dunlap's Paley, 171, note o and refs. 
 
 648. 7 Mich. 355. 13 Iowa, 455. 36 Id. « 8 Wend. 494. 1 Denio, 471. 
 297. 33111.633. 16 Wis. 130. Id. 629. 
 12 
 
90 OF eONTEACTS. 
 
 agenV or availing himself of a jildgment or other act procured or 
 performed by him • ^ one case, however, holding that the mere receipt 
 of a portion of the money, realized from property impxcperly sold by 
 a sheriff, will not be construed as a ratification of the sale.' 
 
 Although the subsequent ratification relates back to the time 
 when the act was done, it cannot be allowed to do so to the prejudice 
 of the rights of others,* nor does a disapproval of the act prevent a 
 subsequent ratification.^ A letter authorizing certain acts, received 
 subsequent to their performance, is a ratification of them.^ The 
 unajithorized acts of one who is actually an agent must be repudiated 
 in a reasonable time after the principal learns of them, or they will be 
 considered as ratified by implication, while those of a stranger require 
 stronger evidence of their ratification ; ' but one case holds that the 
 mere knowledge by a principal that his agent has, against his authority, 
 appointed a sub-agent, does not ratify the appointment ; ^ when the 
 agent acts only for himself, and does not pretend or assume to be 
 acting for another, a mere subsequent ratification will not bind one 
 as a principal ; ' and where there has been a ratification, the principal 
 cannot afterward avoid it.-"* * 
 
 [§ 1T6&.J An agent, by the consent of his principal, may himself buy 
 the principal's property, or sell his own to him, or otherwise transact 
 business where his interest may be adverse to that of his principal." 
 But in the absence of such consent or' an understanding equivalent 
 thereto, an agent cannot act for his own benefit, or have an interest 
 adverse to his principal's in relation to the subject matter of his 
 agency; nor can he be the agent for both parties in any trans- 
 action.^^ If he violates this rule, the contract is void in law at the 
 principal's election, irrespective of any question of actual fraud.^' 
 Thus, one who is employed to purchase for another, cannot sell his 
 
 ' 30 BarjD. 234. Bosw. 337. 23Incl.99. 32 Iowa, 508. 16 
 
 '6Seld. 835. 31 N. T. 611. 32 Barl). Wis. 120. 21 id. 151. 
 
 9. 37 id. 251. 2 Duer, 26. 6 id. 328. 3 ■ 13 Iowa, 533. ' 
 
 BoBw. 570. 6 id. 336. 6 id. 181. 5 Minn. ' 36 Barb. 655. 
 
 839. leind. 481. 1 Clarke, Iowa, 342. 7 '» 11 Iowa, 233. 18 id. 356. 
 
 Micli. 355. 6 Wis. 175. 11 id. 180. 16 lU. " 4 Seld. 316. 84 Barb. 276. 
 
 397. 26 id. 189. '= Dunlap's Paley, 33, &c. and refe. 4 
 
 '■28 111. 185. See 16 Wis. 120. 85 HI. Kern. 85. 17 Barb. 132. 80 id. 558. 33 
 
 41. 36 id. 831. id. 9. 36id..370. 53 id. 173. Id. 317. 34 
 
 Ml Maine, 441. 14 Cal. 896. 19 Iowa, How.Pr. E. 15. 8 Mich. 433. 22 Ind. 
 
 480. ' See 35 Til. 544. 471. 29 Cal. 143. 33 111.439. 34 id. 173. 
 
 ' 28 Vt. 338. 18 Iowa, 388. 
 
 " 43 Maine, 157. " 4 How. U. S. 553. 4 Kern. 85. 30 
 
 ' 1 Black. U. S. 588. 26 111. 447. 10 Barb. 468. 84 id. 276, 287. 36 id. 370. 
 
PEINCIPAL AND AGENT. 91 
 
 own property to his principal;* an attorney cannot act adversely 
 to his client's interest in business intrusted to him ; ' one employed 
 to sell cannot himself be the purchaser ; * a contract of insurance by 
 an agent who acts for both insurer and insured is void at the 
 election of either ; * and so, where an insurance agent insures his own 
 property, the insurance is void at the election of the company.' And 
 so, in all conceivable cases, the agent is prohibited from acting, against 
 their knowledge and consent, for the several parties to an agreement, 
 or for his own interest, or where his interest is or may be contrary to 
 that of his principal, the law not stopping to speculate on^ the 
 actual result to the principal or either party, but condemning the act 
 from high motives of public policy ; ^ a rule which extends equally to 
 public officers as to private individuals.'' So rigid, indeed, is the law 
 against these transactions, it holds that, where an agent has secretly 
 acted for both parties, neither can enforce the agreement against the 
 other ; ' and the only relaxation allowed is possibly in the case of a 
 bona fide assignee of negotiable paper,* or where an agent, in good 
 faith, uses his own money or property in the business of his principal.'" 
 It has, also, been held that where an agent was employed by one 
 person to find a tenant for a farm, and by another to find a farm 
 which he could hire, and the agent brought the two together, and con- 
 summated a bargain between them, that his agency for both constituted 
 no bar to the recovery by him of the price agreed to be paid him by 
 the owner of the farm for finding him a tenant ; " and, also, that the 
 financial officer of a bant, who is a stockholder therein, may buy, for 
 his own benefit, property pledged to it for debt, provided that it is 
 bought for a price sufficient to pay the lien thereon.*' But these, and 
 such cases as these, do not affect the general principles applicable to 
 such cases, which therefore remain as we have above stated them. 
 
 [§ 1 YGc] An agent who has received property, or transacted any busi - 
 ness for or on account of his principal, cannot afterward deny the right of 
 the principal to the property, or claim that it belongs to some other per- 
 son ; nor can he deny the agency itself, or the authority of his principal.'* 
 
 ' 34 Barb. 376. S. C. 36 N. Y. 437. 3 ' 11 Mich. 333. 
 
 Traiiscript,~300. ' 6 Bosw. 8. 
 
 = 16N. Y. 385. 34 id. 167. "35N.Y.393. 
 
 = 1 Seia. 356. 4 id. 316, 30 Barb. 553. " 5 Bosw. 85. 8. C. 38 N. Y. 379. 
 
 33 id. 9. 14 Texas, 317. " 1 Wis. 151. 
 
 * 4 Kern. 85. 30 Barb. 468. «331T. Y. 530. 
 
 ",41 Barb. 353. " 31 N. Y. 606. 14 How. Pr. R. 461. 
 
 " 3 John. Ch. 360, 361. 1 Seld. 363. 41 3 Wis. 657. 38 Mis. 601. 
 Barb. 356, &c. 4 How.U. S. 557. 3 Bear. 84. 
 
92 OF CONTKACTS. 
 
 § 177. Contracts made by the members of a partnersbip, within the 
 scope of the partnership business, are binding npon all the members 
 of the firm, as if made by each. And so, one partner is liable to 
 third persons for the negligent acts of his copartner, or for the 
 negligence df a servant, employed and paid by one of them, 
 while such copartner or servant is engaged in the due prosecu- 
 tion of the partnership business.* A great variety of questions 
 arise upon these liabilities, which must be determined by the general 
 rules which limit the powers and duties of partners. 
 
 § J.78. K. parlmershvp is formed where two or more persons, com- 
 petent to contract, unite in any lawful commerce or trade, and imports, 
 in the absence of all contrary stipulations, that its members are to 
 share in its profits and losses. It matters not whether they are 
 publicly known as partners. And if one permits another to use his 
 name and credit as a partner, and hold him out as jointly liable with 
 himself, or if he represents that he is such partner, he will become 
 liable for debts contracted upon the supposed partnership account, as 
 fully as if he were interested in the business.^ 
 
 § 179. -It is freqiiently laid down in the books that, to constitute a 
 partnership, there must be an agreement to divide profits and share 
 losses in the business in which the parties are engaged.^ But this rule 
 is not strictly correct. The agreement must be to divide the profits as 
 profits. An agreement to share the gross earnings is not suflicient ; * 
 and, as to losses, it is sufficient, in order to form a partnership either 
 that the agreement provides for a division of the profits and losses, 
 or for a division of the profits, after the losses are first deducted. In 
 some way there must be a direct or indirect risk of losses to constitute 
 this relation.^ Therefore an agreement between two persons, by 
 which both are to share in the profits of an adventure or business 
 but that one shall not be liable for the loss, is not a partnership." So. 
 an agency, where the agent is paid out of the profits a certain sum 
 or a proportion of them, constitutes no partnership.' In such cases, 
 
 '18 "Wend. 185. 35]Sr.Y.595. IBosw. *5Denio,68. 5Seia.l86. 16 Barb. 309 
 
 490. 7 Ohio, K. S. 172. 40 111. 406. 
 
 " Story on Part. §§ 30, &c. Collyer on do. ' Story on Part. §§ 20, &c. ; 33, 33, &c. 
 
 §§3,&o. 4Cowen,383. 5Denio,68. 36 33 Vt. 616. 7 Clarke, Iowa, 435. 17 Wis. 
 
 Barb. 64. 40 id. 368. 43 id. 435. 4 140. 43 Mo. 537. 
 
 Texas, 353. 40Mo, N.S. 1. 35 Mis. 341. • 1 Daly, 630. 49 Barb. 606. See also 
 
 Id. 348. 43 id. 391. 10 Ind. 475. 12 id. 32 lU. 411. 4 Nevada, 420. 
 
 12. 20 111. 396. 21 Iowa, 518. ' Story on Part. § 33. 3 Kent, 33. 20 
 
 » 9 John. 470. 3 Comstock, 418. 37 Wend. 170. 3 Comstock, 172. 25 Barb. 
 
 lU. 3C5. 13. 43 id. 435. 24 How. U. S. 836. 33 
 
 m. 411. 4 Nevada, 430. 
 
PAETNEESHIPS. 93 
 
 however, if the business is conducted under their joint names the 
 parties would he deemed partners as to third persons, for the reason 
 mentioned in the last section. Whether they are partners, as between 
 themselves, must be determined by their intentions, as legally 
 ascertained.^ One whose compensation depends upon the profits, is 
 not a necessary party to a suit brought by his principal against a 
 purchaser.* 
 
 § 180. A great variety of cases will readily suggest themselves, 
 where, as between the parties, no partnership exists, and yet where 
 each of them will be liable to third persons as partners. The ques- 
 tion of liability in such cases depends upon the ground their acts 
 have furnished to third persons to believe them partners. 
 
 § 181. The essential feature of a partnership being such a com- 
 munity of profits and losses betweeij the partners as above, it matters 
 not how they contribute to the joint business or enterprise. One 
 may give his services and another his capital ; one may give capital 
 and services, and another capital or services ; or each may give both 
 capital and services ; ' each must contribute something. An agree- 
 ment by which one is not to contribute anything of capital, labor or 
 otherwise, would be void for want of consideration.* Thus, where 
 one agreed to fill a lime-kiln, and another to burn it ; ' where one agreed 
 to furnish a weaving shop, loom and tackle, and the other to weave ; the 
 fact that each was to receive a share of the profits rendered them 
 partners.* The presumption, in the absence of proof, is that the 
 partners share the profits ai;d losses equally.' 
 
 § 182. Where stage coaches are run between two places, different 
 proprietors running with their own stages and horses over particular 
 portions of the route, and paying their own expenses, but dividing 
 the fares received from passengers in proportion either to the length of 
 each one's route, or to the distance each should have transported 
 them, all the proprietors were held partners, and liable to a third 
 person for an injury sustained in consequence of the negligence of a 
 driver employed by pne.^ The distinguishing feature of this case was, 
 that the fare received for passengers formed a common fund, to be 
 divided accoMing to the miles which each run. But where this feature 
 did not exist, or where each proprietor paid the expense of his portion, 
 
 31 N. T. 331. 6 Mich. 800. 15 Ind. * 4 Nevada, 504 
 
 469. 24 111. 483. 40 id. 406. ' 5 Wend. 374. 
 
 = 49 Barb. 606. ° 3 Watts, 842. 
 
 ' 3 CoUyer on Part. § 3. 10 John. 34. ' 23 Cal. 427. 
 
 5 Denio, 180. 9 Bosw. 310. 27 111. 365. " 18 Wend. 175. See also 1 Bosw. 490. 
 
M 
 
 OF GONTEACTS. 
 
 and received the proportionate share of the fare, it was held that there 
 was no partnership.^ 
 
 § 183. For reasons before given, an agreement by one to work 
 another's farm on shares does not make the parties to it partners, 
 and it makes no difference that the landlord furnishes the stock upon 
 the farm ; for the gross product of the farm, and not the profits, are 
 to be divided, and the parties would hold them as tenants in common, 
 and not jointly, until divided.' 
 
 § 184. The partnership may be general, as where the parties carry 
 on all their trade or business, or are engaged in one branch of trade 
 or business, only, for their joint benefit and profit ; or special, in the 
 sense of the common law, as where it is confined to a particular branch 
 or department of business, as contra-distinguished from the general 
 business or employment of the partners, or one of them, or to a par- 
 ticular adventure, as to charter a ship and fit it out for a single trading 
 voyage.' And where the partnership is so limited, and tlie partners 
 hold themselves out to the world in their true characters, they are not 
 liable beyond the real scope of their connection.* It is otherwise, 
 however, where they represent and hold out their business connection 
 as more extensive than it really is. The relation continues until dis- 
 solved by the agreement of the parties, or by operation of law, 
 as where one sells out to the other, or one of the firm dies.^ 
 
 § 185. Dormcmt or secret partners are those who participate in the 
 profits of the trade and conceal their names. This concealment need 
 not be a studied one, nor universal. If one is not an active partner, nor 
 generally known as one, he is within this class." They are equally 
 liable, when discovered, as if their names had appeared, and although 
 they were unkown to be partners when the contract was made or debt 
 contracted ; and they may be joined as defendants with their copartners 
 or not, as the plaintiff pleases.' It has been held that they could not 
 or need not be joined as plaintiffs ; ' but in IS'ew York, since the Code, 
 and elsewhere, where there are similar provisions, they must now sue 
 with their copartners.' 
 
 § 186. Each partner (except in limited partnerships, hereafter- 
 mentioned), is answerable for the whole amount of the partnership 
 
 ■lSeld.l8C. SON. T. 98. See also 19 » CoU. on Part. § 4 Story on Part. § 
 
 Barb. 323. 21 id. 26. 80. 30 N. Y. 374. 
 
 nHm,234. 'SON. T. 374. 29 Barb. C49. IBosw. 
 
 ' Story on Part. §§ 74, 75. CoU. on 36. 36 Mo. 35. 18 lU. 37. 
 
 Part. § 6 in note. « CoU. on Part. §§ 660, C61. Story on 
 
 ' Story on Part. §§ 105, 112. Part. §§ S41, 243. 4 Wend. 028. 
 
 • 36 m. 253. 43 id. 343. » Code, §§ 111, 117. 4 Duer, 416. 
 
LianTED PAKTNEESHIPS. 95 
 
 debts, witliout reference to the proportion of his interest or the nature 
 of the stipulations between him and his associates.^ If, however, 
 before the liability of the partnership is fixed, as if, before money in 
 process of collection, is really collected by a firm of attorneys, one of 
 the members retires, and disposes of all his interest in the matter, the 
 retiring partner is not answerable for a subsequent liability incuri-ed 
 by his old partner or a new firm, as for not paying over moneys after- 
 ward collected.* If a partner is an infant, his acts are voidable by 
 him ; but if, on arriving at full age, he does not disaffirm the partner- 
 ship and give notice of the disaffirmance to those with whom the firm 
 has dealt, he will be responsible for its debts subsequently contracted.^ 
 § 187. Limited partnerships are partnerships which are formed 
 under a statute whose provisions are borrowed from the civil law. 
 They may consist of one or more general partners, who are responsi- 
 ble as other partners are, and of one or more special partners, who 
 shall have contributed, in actual cash (payment in goods will not 
 suffice) * a specific sum as capital to the common stock, and who are 
 not liable for the debts of the partnership beyond the fund so con- 
 tributed. They are formed by filing and recording in the county 
 clerk's office a certificate, signed and acknowledged, or proved before 
 a proper officer, setting forth the name of the firm, the general nature 
 of its business, the names of the general and of the special partners, 
 specifying which are general and which special, with their residence, 
 the amount of capital contributed by each special partner, and the 
 period when the partnership is to commence and terminate. If the 
 business is to be conducted in more than one county, the certificate must 
 be filed and recorded in the county where its principal place of business 
 is to be situated, and a transcript filed and recorded in each other 
 county ; and there must be filed with it an affidavit of one of the 
 general partners that the sum to be contributed by the special partner 
 has been actually paid in cash. Until such requirements of the law 
 have been actually complied with, and a notice published iu two news- 
 papers, designated by the county clerk, of the terms of the partner- 
 ship, the persons engaged in the partnership shall all be regarded as 
 general partners, and so they shall be, if there is any false statement 
 in such affidavit or certificate. The special partner is then liable 
 exactly as if no advertisement were published 'or certificate filed".^ 
 
 ' 3 Kent, 33. Col. on Part. § 6. ■■ 39 Barb. 383. 
 
 ■' 15 N. T. 471. 26 Barb. 83. See 31 ' 1 R. S. 764, §§ 3, &c. 3 id. (Banks' 5th 
 Mis. 315. ea.)61. 39 Barb, 383. 
 
 ' Story on Part. § 7. Col. on Part. § 538. 
 5 Bam. & A. 147. 
 
96 OF CONTEACTS. 
 
 § 188. The business of a limited partnership which cannot extend 
 to banking or making insurance, is required to be conducted under a 
 firm name, in which the names of the general partners only shall 
 be inserted, except that where there are more than two or more 
 general partners, the names of one or more of them may be used with 
 or without the addition of the words " and company," or "& Co. ;" 
 but they must put up a sign in a conspicuous place on the outside 
 and in front of their building in which the names of all the partners 
 shall be given in full ; if this is not done, no suit shall be abated or 
 dismissed for any defects in the plaintiff's pleadings in stating the 
 names and number of the partnership, but the pleadings may be 
 amended, and if the 'name of a special partner is used in the firm 
 with his privity, he is deemed a general partner.^ This provision 
 is probably a peremptory one ; not directory merely.^ 
 
 § 189. Special partners may examine into the business of the part- 
 nership, and advisq as to its management; they may also loan and 
 advance money for the partnership and take its notes, drafts, accept- 
 ances, and the bonds of, or belonging to the partnership, as their 
 security for its repayment, and use and lend their name for tlie 
 partnership business; and in these respects shall have the same 
 rights and remedies as any other creditors. They may also nego- 
 tiate sales, purchases and other business for the partnership, but not 
 to be valid until approved by a general partner, but they cannot 
 transact any other business on account of the partnership without 
 becoming liable as general partners ; ^ and during the continuance 
 of the partnership term they cannot withdraw the capital they con- 
 tributed to it. The partnership property cannot, in contemplation 
 of insolvency, be assigned so as to prefer one creditor oy class of 
 creditors, and in case of insolvency the special partners cannot as 
 creditors claipa any portion of the property until all other debts of 
 the partnership are paid, except for claims allowed to be contracted 
 by the law of 185Y.* The interest of the special partner in the 
 partnership effects cannot be levied on and sold by virtue of an exe- 
 cution against him.' 
 
 § 190. Actions in relation to the business of a special partnership 
 may be brought by or against the general partners only.* In rela- 
 
 ' Laws of 18CC, ch. 661, p. 1434. * 1 K. S. 7GC, 767, §§ 15, 20, 23. Laws 
 
 '42 Barb. 483. See 5 HiU, 309. 15 Ab. of 1857, cb. 414, p. 837, § 4. 3 R. S. 
 
 454. 34 How. Pr. E. 455. (Banks' 5tb ed.) 63, &c. 20N.Y. 178. 42 
 
 » Laws of 1857, cb. 414, § 3, p. 887. 3 Barb. 483. 
 
 R. S. (Banks' 5tb ed.) 64, § 17. ' 38 N. Y. 574. 
 
 nR.S.760, §14. 8 id. as above, p. C3. 
 
LIMITED PAETNEKSHIP. 9Y 
 
 •tion to the rights of the partners in a special partnership, and their 
 rights as to third persons, the same general rules prevail as in other 
 partnerships, except where there is some express provision of the 
 statute to the contrary. 
 
 •§ 191. Under the provisions of this statute the courts have held, 
 that where the statute is not substantially complied with in all its 
 requirements, the persons interested in the partnership become liable 
 as general partners for all the debts and engagements of the firm.' 
 And where the published notice by mistake stated the capital con- 
 tributed by the special partner to be five thousand dollars instead of 
 two thousand dollars, which was the true sum mentioned in the cer- 
 tificate, the special partner was made liable as a general partner.^ 
 But to misspell the name of one of the members in the publication, 
 as "Argale " in&tead of "Argall," will not have that effect ; * and so, 
 where the notice as published stated that the partnership was to com- 
 mence November 16th instead of Octcker 16th, as in the original 
 papers, it was held, in an action to charge the special partner for a 
 debt created after JSTovember, that the error in date being -uninten- 
 tional, formed no objection to the notice.* 
 
 § 192. Any joint stock company or association, consisting of seven 
 or more shareholders or associates, and any company or association 
 composed of not less than seven persons who are owners of or have 
 an interest in any property, right of action, or demand, jointly or in 
 common, or who may be liable to any action on account of such 
 ownership or interest, in addition to the general rights and liabilities 
 of other partnerships, may sue or be sued in the name of the presi- 
 dent or treasurer for the time being, of the partnership or associa- 
 tion, with the same effect, so far as the joint property \)r rights are 
 concerned, as if all the partners or members were made parlies to 
 the action f but no more than one suit shall be brought and main- 
 tained against .said shareholders at any one time, nor .until the 
 same shall have been determined, and execution issued and returned 
 unsatisfied in whole or in part;® 
 
 [§ 192a.] Every association or company formed for the transpor- 
 tatipn of passengers or property by boats, vessels or stages, is required 
 
 ■5Hm, 309. 43 Barb. 483. 838, ch. 455. 3 R. S. (Banks' 5tli ed.) 777, 
 
 ' 3 Denio, 435. , &c. 
 
 » 34 Wend. 496. " Laws of 1853, ch. 158, p. 383. 3 R. S. 
 
 * 5 Hill, 309. (Banks' 5th ed.) 777, § 135. 16 N. Y. 113. 
 
 »Lawsofl849, p. 389, ch. 258. 1851, p. 31 Barb. 650. 33 id. 33. 4Duer, 363. 4 
 
 Abbott, 130. 11 How. Pr. R. 459. 
 
 13 
 
98 OF CONTEACTS. 
 
 to make a statement of the names of its members, and file it in the 
 clerk's office of each county in which its business is transacted. If 
 this is not done, an action shall not abate if all the members are not 
 joined as parties.'' 
 
 §-193. Each partner, and a surviving partner in ordinary cases and 
 in the absence of fraud on the part of the purchaser, has the right 
 to dispose of all the personal property and debts of the partner- 
 ship, and is considered the authorized agent of the other partn ers.^ He 
 may, without the knowledge of his copartner, who might have been 
 consulted, and even against his protest, assign 'any or the whole of 
 the partnership effects, in the name of the firm, to any one of its 
 creditors, in payment of his debt (although the effect will be to pre- 
 fer him to other creditors), or to a third person, in consideration of 
 his promise to pay the debts of the -firm, though not yet due.' So 
 he may assign or mortgage them as security for the antecedent or 
 subsequent indebtedness of the firm ; * or one of them may sell all 
 his interest in the firm or its property to his copartner, who, if the 
 transaction is in good faith, will hold it the same as if it had ever 
 been his separate property, free from any lien in favor of part- 
 nership creditors, or of his assignor, that it be applied to pay part- 
 nership debts ; and may transfer it in payment of his own individual 
 liabilities ; ° if, however, the partnership is insolvent, then a division 
 of its assets among its members and a transfer thereof by the indi- 
 vidual partners in payment of their private debts, would be a fraud 
 upon the partnership creditorSj and the property remains partner- 
 ship property till it reaches the hands of a ionafide purchaser for a 
 new and valuable consideration.* 
 
 It has been a mooted question whether under these general powers 
 one jpartner could, in the absence, or without the knowledge, or 
 against the consent of the other, make a general assignment to a 
 trustee of all the funds and effects of the partnership for the benefit 
 of its creditors ; but it is now well settled in ISTew York and some 
 of the other states that he cannot do it.' But the consent of the 
 
 ■ Laws of 1836, p. 583, ch. 385. 3R.S. "32 N. T. 65. 31 Barb. 596. 26 
 
 (Banks' 5tli ed.) 778, §§ 128, &c. Penn. 108. 20 Texas, 688. Id. 719. 3 
 
 = Story, on Part. § 101. CoU. on id. Head, 339. 
 
 S 384. 3 Kent, 40, 41, 44. 5 HiU, 107. ' 41 Barb. 807. See 42 id 98. 
 
 1 E. D. Smith, 341. 5 Iowa, 324. 8 ' 30 N". T. 344. 37 id. 657. We are 
 
 Mich. 526. 18 Wis. 169. obliged to omit a discussion of tlie giies- 
 
 ' 2 Kern. 442. 24 N. Y. 815. 36 tion in other states, because of the space 
 
 Barb. 622. 4 Cal. 376. 3 Minn. 166. it would require. 
 
 * 36 Barb. 622. 46111.25. 
 
LIMITED PAETNEESHIP. 99 
 
 non-executing partner will be inferred from slight circumstances, and 
 will, when it exists, legalize the assignment. Thus, where an abscond- 
 ing member of an insolvent firm went to his partner, saying he 
 assigned his interest in the business to him, enjoining him to " take 
 charge of anything in our business ; close it up speedily," &c. ; or 
 even where he simjjly absconds and leaves no direction, or is absent, 
 and has relinquished all control and management of the business of 
 the firm, in those and similar cases the assignment is sustained.^ But 
 a simple absence of some of the members on the business of the firm, 
 even though it is insolvent, will not authorize the others to execute 
 such an assignment.^ If they do it, however, no one but the absent 
 partners can question its validity.* If one dies, the surviving part- 
 ners can execute it.* 
 
 It will be noted that we make no reference to the changes in the 
 above rules made by the United States general bankruptcy act of 1867. 
 
 § 194. Each of the partners is liable for articles furnished for the 
 benefit of the firm, although the vendor does not know of the exist- 
 ence of the partnership, and supposes that he is dealing with and 
 giving credit only to an individual partner, and charging him alone 
 on his books. And it makes no difference if the sale was by a writ- 
 ten agreement, signed by the vendor and the partner in his indivi- 
 dual name only.' 
 
 § 195. Wliere an ostensible or known partner retires from the 
 firm, he will continue liable for debts contracted under the firm 
 name, or in the scope of the partnership business, as to all persons 
 who have previously dealt with the firm, though but in a single 
 instance, until actual notice of the dissolution of the partnership ; 
 and this notice may be personally given or by letter, or in other 
 ways, or it may be implied from circumstances which satisfy the jm-y 
 that the notice was received.^ One of these would be a change of 
 the firm name, provided the change was such as to show the retire- 
 ment of the partner.' In many instances, also, while publication in 
 
 ■ 30 N. ■ Y. ^44. 29 Barb. 560. 48 id. 183. 1 Hill, 573. 3 Comstock, 168. 2 
 509. 3Duer, 1. Kern. 383. 30N.Y.344. 35 id. 500. 38 
 
 »43 Barb. 511. 6 Bosw. 133. S. C. 18 id. 94. 5 Transcript, 353. Id. 354. 6 
 
 How. Pr. R. 443. Barb. 344. 26 id. 607. 33 id. 458. 6 
 
 ■ 38 Barb. 593. 4 Wash. C. C. R. 333. Bosw. 399. 1 E. D. Smith, 549. 38 Conn. 
 ' 3 Paige, 517. " 1. 16 B. Mon. Ky. 355. 33 Mis. 185, S 
 '4Cowen,383. 5Dcnio,183. 16 Barb. Cal. 343. 4 id. 360. 15 id. 331. 18 HI 
 
 608. 36N. H. 167. 37. 37 id. 76. 40 id. 455. 8 Ind. 315. 
 
 "Story on Part. §160. Coll. on id. §533. '6 Hill, 595. 34 N. Y. 550. 36 Bfirb. 
 6 .John. 144. Cowcn, 701. 33 "Wend. 607. See 3 Comstook, 108. 
 
100 OF CONTRACTS. 
 
 a newspaper is not of iitadf equivalent to actual notice, proof that 
 tke partj took tlie paper, is a fact from wMeli the jury ma/ infer it^ 
 
 As to those who have had no dealings with the parties, or such ^ 
 not to call for credit, as where there has only been a single prior cash 
 sale to the old firm, it is said that unless the retiring partner still suf- 
 fers his name to appear as one of the firm, he will not be liable to 
 mere strangers for the future" liabilities of the firm, even if he does 
 not give any notice of his retirement.^ And he certainly is not if he 
 gives public notice, as in a newspaper, even if the new creditots have- 
 never seen it.' In respect to a dormant partner, no notice whatever 
 is requisite, he being free from the acts of his copartners by dissolu- 
 tion alpne.* On the other hand, if a new partner is introduced into 
 the firm, he will not be liable for its debts in the absence of any valid 
 agreement to that effect by the new fii'm.' 
 
 § 196. While a partnership continues each partner can employ an 
 agent, or bind the partnership by any contract with third persons 
 within the scope of the business, or where it is for the benefit of the 
 partnership.* This was held where one partner drew his own bill 
 and gave an engagement in the name of the firm to the person on 
 whom it was drawn, to take care of it if he would accept it, the 
 other partner objecting to the guaranty. The bill, after being 
 accepted, was applied to pay rent due by the partnership. The 
 acceptor having paid it, it was held that he could recover upon the 
 guaranty.'' An agreement between the partners that neither should 
 make a contract to charge the athers, will not affect the validity of 
 contracts made by one with third persons having no notice of it, if 
 liie contracts are within the scope of the partnership.^ But one 
 partner cannot bind his copartner by a covenant not connected with 
 the partnership business,' and notice to third persons of its 
 limited nature will be iaferred from a publication of the nature of 
 
 'lEffl,678,notea,andrefs. 33 Wend. 33 Barb. 333. 40 id. 368, 46111.311. 17 
 
 191, 193. 36 Pa. 114. 33 Mis. 185. 4 Wis. 136. One case holds that after dis- 
 
 Cal. 360. 18 HI. 37. 40 id. 455. solution one of the partners may employ 
 
 ° Story on Part. §§ 160, 161. Coll. on counsel to aid him in settling thebusiness 
 
 id. §§ 633, 534, 535. 3 Kern. 383. • of the firm. 4 Kansas, 340. 
 
 » Story on Part. §| 160~ 161. 7 Cowen, ' 5 Denio, 541. See also 3 Comstook, 469. 
 
 701. 3 Kern. 383. 30 N. ¥. 340. 5 » Story on Part. § 105. Ooll. on id. 
 
 Bosw. 1. lOMieh. 819; §§886,387, 1 E. D. Smith, 54a 4 Sneed 
 
 ' 5 Cowen, 534. 1 Hill, 578, n. a. 9 Tenn. 339. * 
 
 Ind. 375. 86 Pa. 335. 37111.76. » 37 Mis. 336. 6 Mich. 374. Story on 
 
 "1410-^^3,351. Part. §§ 110, 111, 113. Coll. on Part. 
 
 ° Story on Part. § 136. CoU. on id. § 483. 17 Iowa, 567. 33 id. 53. 
 e ;t84. 8 Kent, 40, 41, &c. 1 Denio, 403. 
 
LIMrrED PAETITEESHIP. 
 
 the partnersliip at its formation. It may also be shown by other cir- 
 •cnmstances.^ After dissolution a partner has not the right to give 
 the firm note for a pre-existing debt, or to renew its notes, or to 
 endorse a note previously given to it, in the absence ^f express 
 authority ; authority to settle up the firm business is not enough.'' 
 
 § 19T. In like manner, any money or property lent or sold to one 
 of the partners to be used in the business of the partnership, is a 
 valid debt against the firm.* Thus moaey lent to a partner to defray 
 the expenses of traveling on the partnership business is a debt of the 
 firm, and money lent or paid to a partner to be applied by the part- 
 nership in a particular manner within the scope of its business, but 
 which he misappropriates, can be recovered of all the partners, with- 
 out proving their assent to it, or that it was actually applied to the 
 use of the firm ; indeed the other partners are liable, even though 
 the one borrowing the money appropriates it to his own use, unless 
 the lender knew of this intended misappropriation.* If a k^nown 
 partner gives his individual note for money borrowed for and used 
 in the business of the firm, he only and not the partnership is liable 
 therefor.* 
 
 § 198. A partner may assign an account due the firm ; that a seal 
 is attached to the assignment will not vitiate it.' If he be guilty of 
 a deceit in the purchase of goods for the firm, or commits a fraud in 
 the course of transacting any other of its business, the firm is liable 
 therefor, even though the other members had no knowledge of, or 
 participation in it, unless on learning of it they repudiate or dis- 
 afllrm the whole transaction.'' 
 
 § 199. In transactions relating to the partnership, during its conti- 
 nuance the acts of each partner are considered the acts of all, and all 
 acknowledgments or entries made in the partnership books by one 
 are binding upon all." ' And if the acts are within the usual scope 
 of the partnership dealings, with persons acting in good faithy they 
 are valid, although done by one partner for his individual advan- 
 tage. Thus if a partner obtain money upon a note made, or a bill 
 
 ■4 John. 251. 20 14 200. 2 John. 1 Denio, 402. 35 Barb. 120. 53 id. 272. 
 
 * Casea, 171. 4 E. D. Smith, 469. 4 Minn. 243. 
 
 »14 Iowa, 108. 20 Wia. 279. 37 Mo. '41 Mo. 274. 35 id. 428. 
 
 458. 3 Kent, 03. Story on Part. §§ 332, • 5 HiU, 163. 7 id. 585 ; infra § 207. 
 
 &c. 'Coll. on Part. § 445. Story on id. 
 
 Story on Part. § 126. Coll. on Part. § 108. 24 Barb. 549. 2 Sand. 421. 
 
 §§ 390, 391. 24 111. 317. 4 Nevada, 45. ' Story on Part. § 107. Coll. on id. 
 
 ■i 5 Wend. 233. 16 id. 505. 17 id. 47. 779. 3 Kent, 40. 15 John. 409. 3 Pick. 
 
 177. 19IU. 59. 
 
102 OF C0NTEACT8. 
 
 of exchange drawn, endorsed or accepted by him in the name of the 
 firm, for its use, the note or bill will be good against all the part- 
 ners.^ So if it be made, drawn, endorsed or accepted ostensibly for 
 the use of the firm, it will in the hand of a lonajide holder be good, 
 notwithstanding it was not for the partnership, and even if it is 
 accommodation paper, fraudulently procured to be made to his firm, 
 and then transferred in its name for his benefit.* As to admissions 
 by the partners before and after di^olution, see infra, % 1399. 
 
 § 200. A note given by one of the partners in the name of the 
 fii-m, will be intended to have been made in the course of partner- 
 ship dealings, and the burden of proof is upon the other partners to 
 do away this intendment, by showing that the note was given against 
 their knowledge or assent in a matter not within the scope of the 
 piartnership business, and that to the knowledge of the payee." 
 Where, upon the renewal of an accommodation note, the borrower 
 presented to his endorser for signature a note signed by him, with 
 the name of his firm as makers, of which firm he had recently 
 become a member, the endorser was held chargeable with notice that 
 the note was given for the individual debt of the borrower.* If, 
 however, the proceeds of the note were in fact applied to the. use of 
 the partnership, the note will be available against all the partners, 
 and this, notwithstanding one of the partners dissents or objects 
 to it.5 
 
 § 201. A partnership may become liable for the acts of one of its 
 members by a subsequent assent to his unauthorized acts.° In such 
 cases the evidence must be strong and satisfactory. Slight and 
 inconclusive circumstances will be disregarded.'' Mere knowledge 
 on their part of the transaction after it has taken place, and nothing 
 more, is insuflBcient.^ 
 
 § 202. A note given by a partner in the name of his firm, for 
 moneys collected by him as the agent of the payee, is valid against 
 the firm, if the moneys were in the nature of a loan to it.' 
 
 § 203. A debt due to the firm cannot be discharged by applying it 
 
 ' 3 Kent, 41. 16 "Wend. 505. * 14 Wend. 133. 
 
 ' 8 Kent, 43. Coll. on Part. § 447. 15 " 11 Wend. 75. 5 Denio, 541. 2 Corns 
 Wend. 364. 18 id. 466. 20 id. 251. 23 469. " ' 
 
 id. 333. 23 id. 811. 16 N. Y. 135. 5 "4 Seld. 398. 15N.T. 577. 18111.33 
 Duer, 383, 388. 6 id. 309. 4 Cal. 32. 6 8 Minn. 166. 
 icl-141. '14 Wend. 146. 3 Bosw. 188. 18 lU. 
 
 "11 John. 544. 6 Wend. 615. 16 id. 32. 
 505. 53 Barb. 373. 6 Hill, 114. 34 Pa. « 10 Barb. 836. 
 .844. 39 Maine, 157. 18 111. 33. 37 Mis. " 16 Wend. 505. 
 401. ' 
 
, LIMrrED PAETNEESHIP. 103 
 
 to one due by oae of the partners, without a general agreement to 
 that effect, or the consent of the other partners.^ And a partnership 
 security given by one partner for his individual debt, without the 
 knowledge and consent of his copartners, to the knowledge of the 
 party receiving it, will not bind them unless in the hands of a hona 
 fide holder.* If given with their consent it is, of course, valid in the 
 hands of any holder.' 
 
 § 204. An accommodation endorsement of a promissory note in the 
 fimi name by one of the partners, for the security of the debt of a 
 third person, does not bind the other partners unless they were pre- 
 viously consulted, or subsequently assented to the transaction.* So 
 where one of the partners signs the firm name to a note, or draws a 
 bill, as surety for a third person,^ an authority from the other part- 
 ners may be shown by circumstances.* But where one partner 
 guaranties a note given by another partner in the fii-m name for his 
 individpal debt, the guaranty is a waiver of any objection he has to 
 it, and so would his assent to the accommodation endorsement be.' 
 
 § 205. Where the partnership is limited to a particular business or 
 is any otherwise special, if its limited or special nature has been pub- 
 lished in the newspapers, or is otherwise generally understood, and 
 is strictly adhered to by the partners, a creditor must at his peril see 
 that his dealing with an individual partner relates to the joint con- 
 cern, and if it does not, the other partners are not bound without 
 their assent, and a knowledge of the limited nature of the partnership 
 may be inferred from circumstMces.' 
 
 § 206. If a creditor of a firm, either before or after its dissolution, 
 receive from one of its partners his individual note or bill of exchange 
 or other seeiirity, in payment of the debt, it will dischar^ge the other 
 partners of the firm. The intention, however, must have been to 
 receive it in payment, and if it was not, it is only a collateral secu- 
 rity for the payment.' 
 
 § 207. One partner cannot, without express authority, bind his 
 
 '3 Kent, 43. 3 Caines, 246. 3 Jolin. "7 Wend. 1S8. Id. 309. 
 
 300. 7 Wend 328. lHaU,348. 19 Barb. »4Seld. 408. 
 
 326. 3 Ind. 159. 11 Iowa, 338. 36 lU. ' 10 Pick. 147. 
 
 281. 42 id. 335. 46 id. 311. « IJohn. Cases, 171. 3 John. 300. 4 id. 
 
 ' 3 Kent, 43. 1 Story on Con. 334, a. 251. 
 
 Btory on Part. § 133. CoH. on Part. § 496. » Story on Part. §§ 155, 156. Coll. on 
 
 4 Jolin. 251. 16 id. 34. 4 Hill, 259. 4 id. §§ 557, &c. 12 John. 409. 1 Cowen, 
 
 Kem. 628. 290. 33 Wend. 182. 3 Denio, 410. 20 
 
 "37 Mo. 563. Barb. 532. 6 Bosw. 578 and refs. 4Sneed, 
 
 •1 Wend. 539. ' 501. 11 Ind. 33. 27111.46. 
 
104: OF COlfTEACTS. . 
 
 partners by an instrument under seal, to pay money, or sign an 
 appeal bond in its name.^ He may, however, by an instrument in 
 the name of the firm, under seal, authorize a third person to dis- 
 charge a debt due to the partnership, or may release it - himself, or 
 may sell a demand due to it and transfer it by a sealed instrument.^ 
 lie may, however, be authorized by his partner, either in writing or 
 verballyj to execute an instrument under seal, and this authority may 
 be inferred from the general transactions of the partnership, or from 
 the assent of the partners.^ If the instrument is one that would 
 have been good if unsealed, then the addition of a seal, though 
 unauthorized by his partner, will not vitiate it.* 
 
 § 208. A very nice distinction has been drawn in relation to part- 
 nership liabilities upon sealed instruments, tinder the general rule 
 laid down in the preceding section. If one partner execute a bond 
 i<Q the name of the partnership, and I guaranty it, if I pay it I can- 
 not maintain an action against both partners for the money paid. 
 But if in the same case 1 should advance money to the partner who 
 signed the bond to enable him to pay it, I could recover against the 
 partnership for the money lent.^ 
 
 § 209. One partner cannot bind another without his consent or 
 subsequent ratification, by a submission of matters arising out of the 
 firm bilsiness to arbitration, for the reason that there is no implied 
 authority except such as is necessary to carry on the joint business.' 
 Where, however, an award on such a submission is made, and the 
 partner making the submission accepts the award, and gives the per- 
 son paying it a receipt in full, the receipt operates as a release of the 
 partnership claim, by way of accord and satisfaction.' The one making 
 the submission is always bound by it, and so is the other party.^ 
 
 The rule varies in the different states, under their statutes, as to 
 the power of one partner tp bind the firm by a confession of judg- 
 ment made without the assent of the others, or their subsequent 
 approval. In New York it was formerly held that he had no power, 
 except when brought into court by service of process on himself and 
 
 ' Story on Part. §§ 119, &C. 19 Jolm. * Story on Part. 1 133. 5 Hill, 113. Id 
 
 513. 1 "Wend. 336. 13 id. 68, 55, and 163. 1 Seld. 340. Supra, 1 198. 
 
 refn. 1 Oregon, 339. ' 15 John. 409. 
 
 = 8 John. 68. 14 id. 387. 17. id. 58. 30 " Coll. on Part. §§ 439, 485. Story on 
 
 Wend. 351. 33 id. 334. 5 "Wis. 188. Part. §§ 114, 115. 1 Pet. 331. 9 John. 
 
 » Story on Part. §§ 131, &c. W John. 385. 1 Wend. 336. 15 Barb. 536. 5Cal. 
 
 513. 1 Hall, 363. 8 Comstbck, 150. 1 345. 
 
 Seld. 340. 31 How. Pr. E. 317. 18 Iowa, ' 19 John. 137. 
 
 455. 14 Wis. 683. '1 Wend. 336. 15 Barb. 537. 5Cal.345. 
 
LrMIXED PAETNEESHIP. 105 
 
 f 
 
 partner, to confess a judgment which wonld bind anything beyond 
 his own individnal property, or his interest in the avails of the part- 
 nership property aftet the payment of its indebtedness.^ And snch 
 is the rule at common law.^ But under the act of ISTew York {Stat. 
 1833, p. 396, § 3), a confession by one defendant, after service on him 
 only, or by an attorney authorized by him alone, will bind not his 
 goods alone, but those of the partnership.* 
 
 § 210. The only action that can be brought between partners in 
 relation to their partnership transactions is an action of account, or 
 to settle up the business of the firm. This is not within the juris- 
 diction of a justice of the peace.^ Where, however, partners have 
 accounted together and ascertained the balance due from one to the 
 other, an express contract to pay this sum, or even, as some authori- 
 ties hold, an implied one, will authorize an action for the amount, 
 and which, if the sum is not too large, may be brought in a jus- 
 tice's court.' And when there is such a balance struck and a pro- 
 mise to pay, an action may be maintained although, by accident or 
 otherwise, some trifling debts owing by the firm remain unadjusted.® 
 
 § 211. With the exceptions already mentioned,' partners must sue 
 and be sued jointly,' If one of the partners be an infant, it is still 
 necessary that he be joined.' Actions by partners must be com- 
 menced in and prosecilted in the proper christian and surnames of 
 the parties, and not in the name of the company or firm.^" But when 
 the plaintiff is ignorant of the name of a defendant, he may design 
 nate him by* any name, and when his true name is discovered the 
 pleading or proceeding may be amended accordingly." If a partner 
 die, actions must be commenced in the name of the surviving part- 
 ner o:^ partners.''^ In Indiana it is held that it is not necessary to 
 notice a deceased partner in the declaration.''^ The survivors only 
 can sue, or are liable to an action at law, the representatives of the 
 
 'Cotton Part. §469 and note. IWend. 115. Id. 344. 10 Iowa, 333. See37Ind. 
 
 311. Id. 335. 20 id. 609. a76. 
 
 'doll, on Part. §469 and note. 10 Iowa, "l6Wend. COl. 
 
 535. 12 id. 607. 13id.496. ' Ante, §§ 193, 193. 
 
 = 10 Wend. 630. 22 How. Pr. B. 209. «CoU. on Part. §§ 649, 713. Story on 
 
 S. C. 13 Abbott, 193. See contra, 23 How. Part. §§ 234, &c. 12 Cusli. 431. 
 
 Pr, B. 365. » 13 Barb. 536. 1 Bosw. 832. 
 
 *12 John. 401. 48 Barb. 379. Also 33 "10 Ind. 318. 8 Mich. 493. Code of 
 
 "Wis. 651. ^ Iowa, §1690, and 7 Clarke, 359. 45 Barb. 
 
 '3 Com. on Con. 305. 3 Gaines, 293. 269. 
 
 17 John. 80. 1 Wend. 132. 1 Hall, 180. "K. Y. Code, § 175 (150). 3 Cal. 563. 
 
 19 Barb. 196. 37 Mis. 436. 5 Har. Del. " 6 Cowen, 441. 18 Wis. 160. 
 
 14 
 
 " 6 Ind. 64. 
 
106 OF CONTBAOTS. 
 
 deceased partner not being proper parties, except in certain cases in 
 eqmtj} After the firm is dissolved, by death of one of its members 
 or otherwise, the survivors have the sole right' to the possession of 
 the partnership property.* 
 
 [§ 211a.] By the laws of New York no person is allowed to trans- 
 act business in the name of a partner not interested in his firm, and 
 the designation, " and company," or " & Co.," must represent an 
 actual partner or partners.® TJnder this instruction the parties may 
 give to their firm any name they pkase, as " The Union Towing 
 Company," and then use the liame of the several partners in their 
 litigation ; * or they may use the name of one only of their firm.^ 
 
 § 212. Wherever one person may lawfully enter into a contract, two 
 or more ma.j jointly do it, in which case an action must be brought 
 against aU the joint contractors, if alive, or the survivors or survivor 
 if one of them be dead. They may also bind themselves by a joint 
 and several contract, in which case the party with whom the contract 
 is made, may regard it as a joini; contract against all the parties, or 
 as a several contract made by each of them.^ In either case, until a 
 satisfaction be made of the principal demand, one may pursue his 
 remedy against all the contractors. Wlien, however, the principal 
 demand is satisfied by one, the creditor can' only proceed to collect 
 the costs which he may have recovered in his judgment against any 
 other of them.' If he receive the satisfaction of the principal 
 demand of one, before judgment in his actions against the others, 
 the fact would not be a bar in those actions to his recovering costs.* 
 Where several actions in our courts were brought against the maker 
 and endorsers of a note, and the maker paid the note, the plaintiff was 
 permitted to discontinue his action against the endorser without costs." 
 The same rule would doubtless be followed in the case, of joint and 
 several contractors, where actions were brought against them severally. 
 
 § 213. A contract may also be made to pay, or to do such a thing 
 to or for several persons j.ointly and severalh/. Here they must aU 
 join in bringing an action upon the contract, unless their interest be 
 really several, as where a certain part is in fact and by the terms of 
 the contract due to one, and another part to another.^" 
 
 ' 30 Barb. 110 ; aliter in Ohio under their ° 1 Esp. N. P. 140. 1 Parsons on Con. 
 
 Code, § 38. 5 Ohio, 586. 11, 12. 9 Mich. 880. 
 
 " 18 Wis. 169. ' 10 Mass. 88. 9 John. 337. 
 
 "Lawsof 1R.33, ch.381,p. 404. 8 R. S. nO Mass. 88. 4 T. R..691. 
 
 (Banks' -Sth ed.) 978, § 43. " 19 Wend. 98. 
 
 *45 Barb. 369. '° 1 Esp. Dig. part 2, 88. Id. 148, 144. 
 
 » 1 Denio, 403. 
 
SPECIAL AKGTIMElirTS. 107 
 
 § 214. The actions upon contract which are brought in a justice's 
 court, will generally arise upon some one or more of the following 
 grounds : 
 
 1. On special agreements, sealed or without seal, and either writ- 
 ten or verbal, to do or not to do some particular act, which agree- 
 ments are unexecuted. 
 
 2. For goods sold. 
 
 3. For work and labor. 
 
 4. For money had and received to the plaintiff's use. 
 
 5. For money paid for defendant. 
 
 6. For money lent. 
 
 Y. For the use and occupation of lands and tenements. 
 
 8. Upon bills of exchange and promissory notes. 
 
 9. Upon an account stated, or a balance due on settlement. 
 
 The rights of the parties under each of these heads will be examined 
 in their order. '' 
 
 § 215. I. Special agreements. These are agreements whose terms 
 have been distinctly settled by the parties, either in writing or orally. 
 They are called special because their terms are specified. They may 
 be as various as the commercial necessities and purposes of mankind. 
 And where made upon good consideration, and not in violation of 
 any rule of law, they may be enforced by either party to them. 
 
 § 216. In all actions upon this class of agreements, their terms 
 must be set forth substantially in the complaint, and the particular 
 default of the defendant alleged, and the evidence must correspond 
 with the allegations in the complaint.'^ Thus, if I have commenced 
 an action against you before a justice, and we come to a settlement, 
 and I agree to discontinue the suit, but instead thereof go on in 
 your absence and take a judgment against you, I have broken my 
 agreement and you are entitled to an action against me upon it.^ 
 JS'ow, in your ^uit against me, you must in your complaint allege 
 that such former action was pending, that, in consideration of your 
 reckoning and settling with me, I promised to discontinue the suit, 
 and that I did not discontinue it, but proceeded with it and obtained 
 judgment against you. You must then prove each of the specific 
 facts alleged : 1. The pendency of the former suit as stated in the 
 complaint ; 2. The consideration alleged, that we had reckoned and 
 settled, and not that I agreed to discontinue for some other reason ; 
 3. That I promised to discontinue the suit, because if the proof 
 
 '13 Texas, 327. Esp. Dig. HT. T. ed. = 8 Jolin. 470, and see 40 Barb. 514 43 
 part 1, 363 to 364. id. 318. 
 
108 
 
 OF CONTEACTS. 
 
 should be that we made the settlement and I made no promise to 
 discontinue the suit, or had promised to discontinue it upon your 
 performance of some other condition, it would not sustain the com- 
 plaint'; and 4. That I proceeded to obtain judgment in violation of 
 the agreement. 
 
 § 217. In order to recover upon a special agreement, the plaintiff 
 must have performed all the duties required on his part by its terms, 
 to be performed before the default of the defendant.^ As where A 
 hires B to work for him a year, and agrees to pay him monthly for 
 his services, and neglects to pay him, and B leaves his service, A 
 cannot maintain an action against B for not remaining with him 
 during the year. But if the bargain had been that A should pay At 
 the end of the year, then A not being in default, can recover for hie 
 loss of the service. 
 
 § 218. The terms of any special agreement, whether sealed or with- 
 out seal, may, upon a sufficient consideration, be varied by the parties 
 at any time before a breach, and without any further consideration 
 than the varying agreement, if the contract as so varied is fully 
 emauied. Thus, where a plaintiff by an instrument under seal, 
 agreed to erect a house for a fixed price, which was not an adequate 
 consideration, and having done a part of the work, refused to pro- 
 ceed, but on a verbal promise of the defendant, that if he would go 
 on and complete it, he would pay him for his labor and materials, 
 he completed the work ,• it was held that he might recover upon 
 the contract as so changed.* But a contract under seal cannot be 
 modified by an executory agreement not under seal.* 
 
 § 219. Where the time of payment is provided for in a written 
 contract, or where no time of payment is specified, in which case the 
 law construes it payable immediately, a verbal agreement made at 
 the time of its execution, fixing the time of payment at a. different 
 one from that expressed in or implied from the written instrument 
 or in any manner varying its terms, is inadmissible, on the ground 
 that it would be to vary a written contract by parol.* Nor would a 
 subsequent parol agreement be binding to vary it, where the first 
 would, if by parol, be void by the statute of frauds, as where it con- 
 cerns lands ; nor can a valid contract be uiodified by a subsequent one 
 
 ■13 John. 94. Id. 390. 19 id. 337. 8 6 Ohio, N.S.I. 7 Wis. 516. 18 Cal. 160. 
 Oowen, 63. Infra, §§ 373, &c, 9 Pick. 398. See 38 N. Y. 147. 
 
 " 14 John. 330. 7 Co-wen, 48. 39 Barb. ' 10 "Wend. 180. 13 id. 71. 31 id. 638 
 410. 4 Ind. 75. 13 id. 563. 15 id. 164. 33 id. 83. 30 111. 101. 
 
 * 8 John. 189. Lalor, 398. 19 Ind. 89. 
 
GOODS SOLD. 109 
 
 void by the same statute.'- But if the subsequent agreement does 
 not contradict tbe original one, wbether sealed or verbal, but merelj 
 dispenses witb tbe performance of some of its terms, or tbe time of 
 its execution, it is good, even under tbe statute of frauds ; as in tbe 
 case of a contract to deliver goods at a stipulated period, parol exten- 
 sion of the time of delivery is admissible.* And so, an executed 
 agreement for a valuable consideration and by parol, to extend the 
 time of payment of a mortgage is valid.^ 
 
 § 220. By various provisions of the statutes, certain public offlcars 
 may make contracts .which are binding upon themselves and their 
 successors. In all such cases, where contracts have been made by 
 the supervisors, the loan officers or commissioners of loans of a county, 
 the county superintendenifiS of the poor, the supervisors of towns, 
 overseers of the poor, commissioners of highways, or trustees of 
 school districts, such officers may bring actions in the name of their 
 respective offices to enfdrce such contracts, notwithstanding the eon- 
 tracts may Imve been made with their predecessors in their individual 
 names.* Actions against them must be brought against them indi- 
 vidually, specifying in the process, pleadings and proceedings, their 
 name of offi(ie.' 
 
 § 221. II. Actions foe goods sold. These may be brought when- 
 ever any personal property has been sold, either at a price agreed 
 upon, or left to be implied by the law, at what it is reasonably worth. 
 The' action may be where the defendant has received the goods by 
 an actual delivery or its equivalent, or where he has simply con- 
 tracted to purchase and refused to take and pay for them.* A con- 
 tract to sell an invoice of sugar, more or less, "to arrive on or 
 before" a certain time, is an absolute sale not depending on its arrival 
 by the time, or of some of the invoice being sdestroyed before arrival ; ' 
 but an agreement to send to another a force pump represented to do 
 -certain work, or to be returned if it did not, or if not liked, is a condi- 
 tional agreement only.' In either case of sale, the plaintiff may 
 recover the value of the goods sold, and where they are not taken 
 
 nS JoTin. 204. 1 Maule & Seld. 31. 'Id. §96 (109). 
 
 17Ind. 167. See 15 id. 164. '30 Barb. 206. 34 id. 301. Id. 330. 2 
 
 "1 John. Cases, 22. 3 John. 528. 12 Bosw. 166. 5^4 559. 6 id. 57. 
 
 Barh. 366. 20 id. 42. Id. 509. 6 Duer, 'ION. Y. 595. 35 Barb. 515, but see 4 
 
 208. 1 Hilt. 354. 6 Iowa, 350. 18Cal.ll5. Comstock, 122. 
 
 4 Greene, Iowa, 181. ' 38 Barb. l28. Also 2 John. Cases, 253. 
 
 » 30 N. T. 394. 13 John. 219. 14 id. 167. 16 Wend. 494. 
 
 *2 R. S. 473, §§ 93, 98. 8 id. (Banks' 
 5th ed.) 774, §§ 105, 106. 
 
110 OF OONTRAOTS. 
 
 and paid for, he may retain them in his possession as a pledge until 
 he obtains satisfaction of his judgment, either by sale of them upon 
 his execution against the purchaser, or in some other manner.^ If 
 goods are sold on condition that they may be returned if they do 
 not correspond with a warranty, and they are returned accordingly, 
 and accepted, unconditionally, by the vendor, the agreement is at an 
 end, and the vendor cannot recover the price, even if he shows there 
 was no breach of the warranty.* 
 
 § 222. Where the goods were sold and delvoered to the defendant, 
 the delivery should, with the bargain of sale,. be alleged in the com- 
 plaint. If, however, the defendant has refused to receive and pay 
 for the goods, and they have not been delivered, the contract of sale 
 should be stated, and the fact that the plaintiff had offered to deliver, 
 and the defendant had refused to receive and pay for them.^ If the 
 delivery is to be in the future, but the vendor, before the time, gives 
 notice or induces the vendee to think that he wiH not 'perform, or 
 disables himself from doing it, as by a sale and delivery to a third 
 person, this releases the vendee from performance on his part, and 
 he is relieved from averring or proving performance or an offer to 
 perform.* 
 
 § 223. If no time is fixed for delivery, it must be in a reasonable 
 time, and an action may be brought as well by the purchaser as by 
 the vendor, if the latter fail to comply with his contract of sale by 
 delivering the goods.® In this case, the purchaser is entitled to 
 recover from the vendor the difference and interest between the con- 
 tract price and that which similar goods were worth at the place of 
 delivery on the day when they were to have been delivered.^ It will 
 not change the rule of damages, if it appear that the purchaser had 
 agreed to sell them at a price above the market, and lost the oppor- 
 tunity of making a profit thereby.'' If the purchaser has returned 
 the goods, the vendor cannot recover the difference between the con- 
 tract price and that for which he resold them.* If the goods have 
 
 -Ante, § 85. 5 Jolin. 395, 404. 15 ' 34 Barb. 378. 37 How. Pr. R. 104. 
 
 Wend. 498. 34 Barb. 301. 1 Sand. 297. " 8 Wend. 435." 1 Seld. 537. 2 Eeman, 
 
 1 E. D. Smith, 590. 4 Sneed, 557. 9 Ind. 40. 20 Barb. 42. 34 id. 204, 333. 35 id. 
 
 500. 515. 88 id. 228. 3 Sand. 585. 4 E. D. 
 
 '15 Wis. 50. Smith, 14. 3 Mich. 55. 1 Iowa, 98. 33 
 
 m John. 178. 21 N. Y.462. 19 Barb. Mis. 150. See further as to the rule of 
 
 416. 38 id. 200. See 20 HI. 639. damages, infra, § 1507, &c. 
 
 ' 2 Pars, on Con. 188. 5 Cowen, 508. 7 ' 24 Wend. 322. See 16 N. T. 492. 
 
 id. 24. 23 Wend. 66. 34 Barb. 833. Id. » 1 Cowen, 345. 
 378. 6 Bosw. 202. 1 E. D. Smith, 463. 
 Also 35 Cal. 220. 
 
GOODS SOLD, ^ 111 
 
 not been delivered, and the purchaser has paid a part of the purchase 
 price, he may recover that back;^' if the vendee refuses to take 
 them, and the vendor sells them fairly, after notice to the purchaser 
 of his intention to do so, and sues to recover the balance between 
 the proceeds and contract price, the amount brought on the sale is 
 conclusive as to their value, although the purchaser had not a fur- 
 ther notice of the time and place of the sale.'' Otherwise, if no 
 notice was given of such intention.' If the debtor agrees to deliver 
 to his creditor goods at a stipulated price in payment, and fails to do 
 so, the creditor in an action therefor may recover the amount so 
 agreed to be paid, although the market value of the goods them- 
 selves is less than the price at which they were to be received.* If 
 there is no evidence of the market value in a suit for refusal to 
 receive, a nominal sum only can be recovered.^ 
 
 § 324. Where, however, the purchase price has been paid in 
 advance, and the vendor fail to deliver the goods, the purchaser may, 
 if he bring his action within a reasonable time, recover according to 
 the highest market price at any time between the period of delivery 
 and the day of trial,* or the purchase price and interest in the 
 absence of evidence of special damages.' If the purchaser induces 
 the seller to contract to sell by fraudulent representations, he cannot 
 recover damages for the vendor's refusal to deliver the property on 
 account of the fraud. The fraud may be shown by way of defense.' 
 
 § 225. In determining the right of parties to bring actions upon 
 contracts for goods sold, an examination of the principal rules in 
 relation to sales will in many cases be necessary. Some of them, 
 and especially those which are provided for by the statute of frauds, 
 have been examined in the former part of this treatise.' 
 
 § 226. "Where, upon a sale, no particular time was fixed for the 
 payment, the payment and delivery are concurrent acts, and the 
 vendor niay refuse to deliver without payment," and may retain the 
 article as a pledge until the payment is made, and in the meantime 
 the title does not pass ; " or if not made within a reasonable time, as 
 
 ' 7 Bosw. 108. ' 6 Mich. 348. 
 
 ' 30 N. Y. 549. 10 Bosw. 39. See 36 ' 30 N. Y. 655. 
 
 Barb. 364. 45 LI. 80. ' Ante, §§ 81, &c. 88, &c. 
 
 ' 29 Barb. 454. " 3 Kent, 493, 496. 3 BL Com. 448. 3 
 
 * 3 Bosw. 181. See also 5 Wend. 393. Cowen, 84. 6 id. 110. 4 Barb. 564. 21 
 
 '23 Barb. 546. 43 id. 227. lU. 238. 38 id. 533. 
 
 ' 7 Cowen, 681. 9 Wend. 129. 23 id. "Ante, § 231 and refs. 1 Pars, on Cou. 
 
 366. 25 id. 417. 33 N. Y. 616. 2 Iowa, 440. 15 Iowa, 377. 36 Mo. 479. 
 101. 3 id. 343. See 3 Sand. 614. Infra, 
 § 1507, &c. 
 
112 OF OONTS^lOTS. 
 
 if delayed until the next day, he may, if he has not permitted the 
 purchaser to reduce it to possession by marking it with his name, or 
 putting hie seal upon it, disre^rd the sale.'- If, however, he fi-eely 
 and aheolmtely deUrers it to the vendee without any fraudulent con- 
 trivance to obtain its possession, and without exacting or expecting 
 simultaneous payment, tiiere is confidence and credit bestowed, and 
 the precedent condition of payment is waived and the title passes.'* 
 If payment was to have been made in the- notes of a third person, 
 who becomes insolvent before the time of delivery, the vendor is 
 not bouad to deliver upon a tender of the notes, although they are 
 not entirely worthless ; * and, on the other hand, if after the goods 
 have come to the vendee's possession, on disooveriog his own insol- 
 vency, he deposits them in a warehouse for the vendor, and nofcifles 
 him of it, the vendor's elaim will prevail over iixQ lien by attach- 
 ment, of another creditor, although levied before the vendor had 
 signified his assent to the deposit for him.* 
 
 A waiver of payment on delivery of a portion of the goods, will 
 not be a waiver of payment on the delivery of the remainder.^ 
 
 :§ 227. "Where, however, payment is expected simultaneously with 
 the delivery, and is omitted, evaded or refused by the purchaser 
 upon getting the goods in his control, the delivery is held to be 
 conditional, and the non-payment an act of fraud entering into the 
 original agreement, vitiating it and rendering it void, and the vendor 
 may instantly reclaim his goods.* If it was a condition of the con- 
 tract thait the seller was to receive, upon delivery, a note or security 
 for paymient, and he delivers the thing sold, at the same time decla- 
 ring that he shall not coUsider it sold until the security be given, 
 the delivery is deemed conditional, and the title does not pass.'' 
 
 § 228. The rule in relation to conditional deliveries is applied to 
 a great variety of cases arising in commercial transactions, where 
 sales are made for cash or specified securities, as chattel mortgages 
 or approved notes, and the custom of the trade is to deliver the 
 goods sold to the purchaser and to call upon him for the cash or 
 notes within a day or two, or at a particular day of the same week ; 
 as in the case of auction sales in ]N"ew York, where the buyer takes 
 
 "Holt, 8. SMnmer, 647. 19 Baib. 425 '21N. T. 399. 
 
 and refs. • Supra, § 97. 3 Kent, 497. 13 JohH. 
 
 » 2 Kent, 496. 6 Cowen, 110 1 Denio, 434. 6 Co wen, 110. 1 Denio, 571. 2 
 
 51. 1 Seld.' 44. Hall, 345. S3 N. T. 2GQ. 19 Barb. 260. 
 
 ' 16 N. Y. 595 ; so as to the insolvency 27 Mis. 45. ' 
 
 of the vendee. 1 Pars, on Con. 440. ' 4 Mass. 404: 14 Ind. 459. 
 
 '24N. Y. 538. 
 
GOODS SOLD. 113 
 
 the goods and pays the cash, or furnishes the approved notes when 
 called for within a day or two ; ^ or where the custom in sales of jlour 
 for casK, was for the purchaser to receive the flour and pay for it when 
 called upon for it the next day.* In one case, goods were sold in 
 New York to a dealer in the country, upon his agreeing io return 
 home and immediately to send certain securities for them, and the 
 goods were shipped to his address. Upon his failure to send the secu- 
 rities the goods were reclaimed, and the delivery held a conditional 
 one.^ 
 
 § 229. Where there has been a conditional delivery, in order to 
 render the sale absolute, the purchaser must comply strictly with the 
 terms of the contract of sale.* If the terms were cash, it will not he. 
 sufficient to tender a part cash and the seller's note for the balance." 
 And the delivery will be deemed conditional, ' in a sale for cash, 
 whenever anything remains to be done by either party to ascertain 
 the amount to be paid (as to weigh or measure the goods), until that 
 is done and the price paid.* Where a delivery is apparently abso- 
 lute, and without any cotemporaneous declarations qualifying it, the 
 onus of proving it a conditional one vests with the vendor.' 
 Where one sold sheep, for which he was to be paid fifty dollars down, 
 the vendee agreeing to pay fifty dollars more in three days, and in 
 ten days to take the sheep and pay the balance, and the first fifty 
 dollars were paid, it was held that though the vendee did not pay the 
 second fifty dollars, or take the sheep and pay the balance as agreed, 
 the vendor could not sell the sheep to a third person without first 
 giving the vendee notice that he must take the sheep and pay the 
 balance, or they would be resold, and the vendee called upon to make 
 up the deficiency .* But it is also held that where a person has pur- 
 chased property in his own name, to be paid for in the notes of a 
 third person, and a portion is delivered, for which he then refuses to 
 pay on the ground that he was the agent of another, and therefore 
 not liable, the vendor is not bound to deliver, or tender, or offer to 
 deliver the residue of the property." 
 
 § 230. The neglect on the part of the seller to enforce the terms 
 of the contract of sale, or to rescind it on the failure by the pur- 
 
 "3 Kent, 497. 14 Wend. 31. 23 id. 659. n Denio, 571. 
 
 19 Barb. 366. 35 id. 474. 38 id. 393. » 7 Wend. 404. 15 id. 323. 6Seld.388. 
 
 = 33 Wend. 373. 1 Paige, 313. 4 Kern. 617. 19 Ark. 566. 
 
 » 1 Paige, 313. See 15 Iowa, 377. ' 1 Seld. 41. 3 Duer, 341. 9 Wis. 153. 
 
 *8 Cowen, 84. 37 Mia. 45. See 17 =29 Barb. 315. 
 
 Mass. 613. 17 Wis. 477. "6 808^.57. 
 
 15 
 
IM OF eONTBACTS. 
 
 ehaser to comply with them, will be deemed a waiver of those terms, 
 in the case of a conditional delivery, where it continues a sufficient 
 time to warrant a belief that the seller intended to give a further 
 "credit to the purchaser, and will pass the title of the goods sold.^ 
 For an unconditional delivery precludes the idea of any further title 
 or lien in the vendor.* But where there was an agreement to deliver 
 articles by the wagon-load, payment for each being ,made on delivery, 
 and the vendee has delivered several loads without exacting the con- 
 dition, that is not a waiver of his right to exact it as to the subse- 
 " quent ones.^ So, where a contract of sale included rye, corn and 
 oats at stipulated prices to be paid or secured on delivery, and 
 .the rye was delivered, and a part of it only paid for, it was held 
 that the vendor had waived the terms of the contract as to the 
 rye, and had no right to refuse to deliver the corn and oats, on 
 the ground that the vendee had not paid or given seeui-ity for the 
 rye.* 
 
 [§ 230a.] If goods are sold and delivered under the agreement that 
 the title thereto shall remain in the vendor until they are paid for, 
 as between the vendor and the vendee the title does not pass, and 
 they remain the vendor's property till full payment is made.^ But 
 it is held in I^ew York that, while they are not subject to levy and 
 sale under an execution in favor of a third person against the vendee, 
 yet, that if the vendee sells them to a iona fide purchaser, he will 
 hold them as against the claims and title of the original vendor." In 
 some of the other states, however, it is held that, in such cases, the 
 hona fide purchaser from the vendee acquires no title till the goods 
 are paid for.' 
 
 § 231. A purchase with intent not to pay for the goods, is fraudu- 
 lent, and renders the sale void as against the vendor, and he may 
 reclaim them.^ But if he delivered them with intent to pass the 
 property as well as the possession, a hona fide purchaser from the 
 fraudulent vendee, that is, one who pays the price without notice of 
 the fraud, acquires title as against the owner, although the latter 
 
 'OCowen, 110. 6 Wend. 77. 25 id. °3Duer, 20. 15 N. Y. 409. 36 id. 556. 
 
 040. 1 Seld. 41. 31 Penn. 334. 9 Wis. 3 Transcript, S40. 
 
 153- ' ' 15 Iowa, 377. 36 Mo. 479. 33 111 
 
 » 6 Wend. 77. 8 id. 256. 411. 46 id. 819. 
 
 »21 K Y. 399. "13 John. 204. 33 Wend. 611. 1 Hill, 
 
 "SIN. Y. 463. 803. 30 Barb. 494. 6 Bosw. 299, 41 Hi' 
 
 '3 Hill, 336. 15N.Y.409. 3Ducr,30. 193. 
 8 Iowa, 351. 9 id. 91. 15 id. 377. 36 
 Mo. 479. 
 
GOODS SOLD. 115 
 
 1 
 
 might have reclaimed them from his vendee.* But if goods, other 
 than negotiable paper, and cash or bank bills, are stolen or otherwise 
 taken from the owner without his express or implied consent, a hona 
 fide purchaser will not acquire any title as against the owner.^ A 
 different rule prevails in England in respect to sales in 'market overt, 
 as it is termed ; but as there are no markets overt in this country, 
 that rule does not prevail here.^ 
 
 § 232. If the purchaser had notice of such facts and circumstances as 
 would naturally excite the suspicion of a man of ordinary prudence and 
 caution (as where shares of stock were bought for a third of its market 
 value, of a lad of sixteen), but does not make further investigation, 
 he cannot be treated as a 'bona fide purchaser, even though he paid 
 some value for the property.* But if he has such notice, and on 
 making further inquiry fails to discover the prior right, then he is a 
 l)onafide purchaser.^ He must also have given some value, or incurred 
 some new responsibility, or have released, surrendered, or destroyed 
 some security, upon the credit of the property, without previous 
 notice of the fraud.^ It is not sufficient that he took the goods (they 
 not being negotiable notes) from the fraudulent vendee in payment of 
 a previous debt.' "Where the purchaser is not a lona fide one, the 
 owner can repudiate the sale and reclaim them from an officer who 
 has levied upon them as the property of the fraudulent vendee, or 
 from a person to whom the debtor has turned them out in payment, 
 or upon a mortgage for an antecedent debt, or from assignees for the 
 benefit of creditors.' 
 
 § 233. "Where goods ' are purchased upon credit through felse 
 representations made by the purchaser, and the vendor took the 
 note of the vendee, or other consideration for them, if he elects, 
 as he may, to rescind the contract a,nd reclaim the goods sold, he 
 must first promptly return or offer to return the note or considera- 
 
 » Infi^, § 581. 8 Cowen, 338. 13 Wend. ' 15 JST. Y. 354 
 
 570. 25 Barb. 474. 45 id. 499. 8 Duer, ' 24 Barb. 554. 31 id. 183.'' 38 id. 215. 
 
 341. 6B0SW. 399. 21111. 330. 32 id. 411. id. 621. 37 id., 458. 43 id. 31. 43 id. 
 
 '^ 30 Wend. 367. 23 id. 385, 298. 3 379. 6 Duer, 233. 5Bosw.421. 6 Mich. 
 
 Barb. 20. 3 Duer, 341. 5 id. 368. 4Bosw. 143. 30 Mis. (9 Jones) 335. 3 Minn. 325. 
 
 156. 5 id. 131. 33 111. 411. ' 18 Wend. 570. Infra, § 581. 23 Cal. 
 
 » 33 111. 411. 30 Wend. 276. S Kent, 359. Contra, 16 Wis. 659. 
 
 324, andrefs. = 8 Cowen, 238. 13 Wend. 570. 28 id. 
 
 «2 8ekl. 374. SSN.T. 600. 31 id. 597. 373. 1 Hill, 302. 17 N. T. 349. 33 id. 
 
 34 id. 347. 41 Barb. 307. 4 Duer, 101. 364. 17 Barb. 446. 33 id. 171. 6 Duer, 
 
 5 OMo, N. S. 70. 17 Texas, 143. 6 Iowa, 171. 20 Mis. (5 Ben.) 446. 
 279. ' 
 
116 OF CONTEACTS. 
 
 tion received.* Late cases hold, however, that where the vendor 
 receives the purchaser's own note, it is unnecessary to tender it back 
 untn the trial ; a previous tender is advisable as an evidence of a 
 prompt disaAQmiance of the sale, which is absolutely necessary.^ 
 
 § 234. "When goods are sold upon credit and nothing is agreed 
 upon as to the time of their delivery, the vendee is immediately enti- 
 tled tp their possession, and the title at once vests in him, subject, 
 nevertheless, to the right of the vendor to reclaim them while on their 
 passage to the vendee, if he become insolvent, or embarrassed, and 
 probably not able to pay his debts,^ which may be inferred from cir- 
 cumstances.* This right is called the right of stoppage m trcmsitu. 
 If property is sold without any expectation of immediate payment, it 
 is a sale on credit.^ 
 
 § 235. The right of stoppage m trcmsitu is confined exclusively to 
 tl)fi vendor. It can only be exercised when the vendee is insolvent 
 or embarrassed, as above, and the goods unpaid for in whole or in 
 part, and where they are actually on their passage to the vendee. ' If 
 they have come to his possession, or to that of his agent, the right is 
 at an end, unless that agent is merely one to forward them to the 
 vendee, and then it still continues.* It is generally a question of fact 
 for the jury to decide in what capacity such agent received the goods.' 
 If previous to their reaching the vendee he "Bells a part, the remainder 
 maybe 'stopped.* If the vendee discovers his insolvency and then, 
 though the goods have come to his possession, deposits them in a 
 warehouse subject to the order of the vendor, notifying him thereof 
 by letter, the vendor's title will prevail over the vendee's creditors, 
 the vendor's assent to the deposit being presumed.' The same rule 
 applies where, when they reach their destination, the vendee who 
 has become insolvent, refuses to receive them, and requests a third per- 
 son to take possession of them for the vendor, which he does.'" This 
 stoppage does not operate to rescind the sale, but simply to revest the 
 vendor with the possession of the goods in the way of a pledge, and 
 the vendee is entitled to them upon payment or tender of the price." 
 
 ' Ante, § 80, and refs. 13 Barb. 645. 21 • 3 Kent, 545. 3 Story on Con. 818. 7 
 
 id. 83. . 6 Ind. 26. 7 "Wis. 503. 15 Cal. T. E. 436. 17 N. T. 249. 27 Barb. 658. 
 
 213. 39 id. 589. 41 lU. 193. 43 id. 78. 38 id. 375. 6 Bosw. 76. 33 Cal. 508. 
 
 34 Ind. 333. 35 id. 138. ' 13 Wis. 79. 
 
 = lKeyes,433. 3 id. 473. Supra, §80. " 14 B. Mon. Ky. 334. 
 
 Infra, § 347. See 29 Cal. 589. " 24 N.-T. 538. 
 
 » 3 Story on Con. § 814. 33 Wend. 611. " 1 Iowa, 64. 
 
 M3N.H.580. " 2 Stoiy on Con. § 815. 3 Kent. Com. 
 
 ' 30 111. 164. 541. 
 
GOODS BOLD. H7 
 
 § 236. Goods are considered to be on their passage when they are 
 in the hands of a middleman, as a packer, or a warehouseman at any 
 stage of their transit, although it may be at the place where they 
 were directed to be sent, if that be an intermediate point between the 
 place of sale and their ultimate destination.^ They may also be 
 reclaimed if they have actually reached their place of destination, if 
 the carrier still retains them upon his lien -for the freight.^ 
 
 §^37. Subject to the right of stoppage in trcmdtu, goods sold and 
 delivered to a carrier appointed by the vendee, are regarded as 
 delivered to the vendee himself, on the principle that the acts of an 
 agent are the acts of his principal.* This right of stoppage prevails 
 over any Hen on the goods claimed by third persons through the pur- 
 chaser, or an execution or attachment levied thereon by a creditor of 
 a purchaser.* 
 
 § 238. Where one has fraudulently obtained goods from another, 
 the vendor may, if he choose, waive the fraud and aflflrm the contract 
 and bring his action against the purchaser for the goods.^ But if he 
 brings his action for the price' he affirms the sale and cannot after- 
 ward reclaim the goods.* So, if one wrongfully take goods, and 
 then promises the owner to pay him for them, he may bring an action 
 upon the contract and recover the value of the goods.' 
 
 § 239. In executory contracts for the sale of goods, the vendor should 
 not bring his action until he has perfonned or offered to perform all 
 the parts of the contract to be performed on his part.* Thus, on a 
 contract to deliver 100 sacks of flour at a certain price per sack, or 
 100 bags of hops, at a certain time, at a certain price per cwt., no 
 action lies until the delivery of the whole.' So, in a contract to sell 
 100 tons of hay, to be paid for by the ton, part in advance and the 
 residue when the whole was delivered, it was held that the delivery of 
 the whole quantity was a condition precedent, and the plaintiff could 
 not recover for a portion of the 100 tons which he had delivered." In 
 another case, where the contract specified the quantity to be delivered, 
 the time of delivery and price, and the vendee had consented to a varia- 
 tion in the time of delivery and price, but not in the quantity, and the 
 vendor failed in delivering the quantity, it was held that an. action 
 
 ' 33 Wend. 611. 5Denio,639. 6 Bam, = 4 Paige, 537. 18 N. Y. 553. 39 
 
 & Cress. 433. 6 Iowa, 480. Barb. 315. 
 
 ^ 1 Bam. & C. 181. ' 1 Marsh. Ky. 83. 
 
 » 3 Bos. & Pul. 584. 8T. R. 830. » 5 Duer, 336. Infra, § 349. 
 
 * 33 Cal. 508. ' 5 Bos. & Pii|. 61. 2 Stark. 251. 43 
 
 ' 4 Paige, 537. 34 Barb. 84. ' Mo. 133. 
 
 '° 18 Wend. 187. 
 
118 OF CONTRACTS. 
 
 would not lie for the portion delivered.^ If the transaction is merely 
 colorable, it being the intention and understanding of the parties that 
 the goods shall not be delivered, bnt that the difference between the 
 contract price, and the market price on the agreed day of delivery, shall 
 be paid by one party to the other, the transaction is void under th« 
 8th section of the New York statute against "Betting and Gaming."* 
 
 § 24:0j An action on contract for the sale of goods will not lie 
 until the credit upon the sale has expired, unless where the purchaser 
 has procured the credit by fraud ; as if he grossly misrepresents his 
 circumstances, or purchase with a view to run away, or practice any 
 deceit in obtaining the credit, manifesting an intention to cheat the 
 seller out of his goods. In such cases the credit is void, and the price 
 due immediately.* 
 
 § 241. Where goods are sold to be paid for at the end of three 
 months by the purchaser's note, or other tecurity, at two months from 
 that date, the contract contemplates a credit of five months, and at 
 the end of three months the vendee's only damages would be for 
 the non-performance of the contract to furnish the note or security.'* 
 But after the five months, an action for goods sold and delivered 
 lies ; ^ so, if the bill agreed to be given is drawn, but the drawee 
 refuses to accept, an action for goods sold, etc., lies immediately.^ 
 So, if goods are sold to be paid for in an approved endorsed note at 
 six months, on the goods being delivered and the note demanded and 
 refused, an action can at once be brought for the price of the goods. 
 In Iowa it is held that where it is the vendee's own note, on time, 
 that is to be given, his failure to execute and deliver it does not make 
 him liable to pay before the day fixed, although it is otherwise in 
 regard to the note of a third person.' In Indiana, however, it is 
 held that where the agreement is to give and receive the vendee's 
 note, it must be executed in a reasonable time, or the whole sum 
 becomes due Immediately.' 
 
 § 242. An action for goods sold and delivered may be maintained 
 for goods sold to any. duly authorized agent of the plaintiff, or to 
 one whose acts, as agent, have been subsequently ratified.^" The 
 
 '16 Wend. 633. «6T.R. 63. 7 id. 60. 4 East. 153. 
 
 « 1 R. S. 663. 2 id. (Banks' 5tli ed.) 934 ' 3 Hall, 345. 
 §8. IBosw. 307. . M Greene, 539. 
 
 = 1 Esp. 430. 3 id. 533. 37 Barb. 653. » 14 Ind. 341. 
 34 id. 84. ■ 10 Ind. 430. '" 10 Wend. 371. 4 E. D. Smith, 337. 1 
 
 * 4 East. 147. 3 Bos. & Pul. 583, 31 Met. Ky. 133. 16 111.397. 18* Id 394 
 Wend. 90. Id. 175. 30 id. 191. Id. 650. 14 Wis. 101. 
 
 MBos. &Pul. 330. 
 
GOODS SOLD. 119 
 
 authority of the agent rakj he directly conferfedj or may be impKed 
 from the acts of the parties, as has been remarked.^ Thus, where 
 one has been accustomed to permit his wife, or child, or servant, to 
 purchase goods on his'accoUnt, all purchases so made will be deemed 
 authorized, and he will be boiihd to pay for them. If goods are 
 delivered to a carrier to transport to the consignee who is also the 
 piu'chaser, by the purchaser's order, this is not such a delivery as 
 makes the purchaser liable for them, if they do not correspond in 
 quantity and quality with the order ; but if the purchaser accepts 
 them he is bound.^ 
 
 § 243. There is a class of cases where, although there is no actual 
 agency, yet from the necessity of the case and the duty of the prin- 
 cipal, the law renders him liable for goods purchased on his account. 
 Thus, a husband is bound to provide for the support of his wife, a 
 father for the support and education of his child, and a master for . 
 the support of his indented apprentice. In these cases, where the 
 husband, parent, or master neglects to furnish them necessaries, any 
 person who supplies them with them may maintain an action for the 
 value.^ But the claimant must make proof of this neglect, to.entitle 
 him to recover.'' In the case of a father, however, his liability may, 
 in special cases, be removed, and cast on another person, as when, in 
 a decree for divorce, the care and custody of the child is absolutely, 
 or by necessary implication, placed on the mother." And the obli- 
 gation to provide for his children extends to all persons to whom he 
 stands in place of a parent ; as where he receives^into his family his 
 wife's children by a former husband. Although not bound to main- 
 tain them, yet if he does actually bring them into his family, he has 
 placed himself in the place of their natural parent, and is liable for 
 their maintenance and education the same as for that of his own 
 children.* And in these cases, he is liable for their necessaries and 
 education while living in a state of separation from him, rendering 
 ' it proper that they should be furnished with them.'' If the necessaries 
 are furnished to an indented apprentice, strict proof of his appren- 
 ticeship is required.^ 
 
 § 244. The action may be brought for necessaries or education 
 
 ' Ante, § 158. ' Pais, on Con. 355. 39 Barb. 134. 9 
 
 = 17 Wis. 37. Bosw. 578, 35 111. 603, 
 
 » 1 Pats, on Con 347, 389, 533. 41 Barb. » 4 East. 76. 3 Esp. 1, 
 
 558. 9 Bosw. 578. 3 Hurl. &N. 361. 13 ' 3 Esp. 1. 
 
 Iowa, 513. ' 3 Esp. 188. 
 * 34 Barb. 634. 39 id. 138, 129. 1 Hil- 
 ton, 108. 
 
120 OF CONTEACTS. 
 
 famished a bastard child, where the putative father, after their 
 delivery, has promised to pay for them, notwithstanding he has since 
 the promise discovered that the child was not his.^ 
 
 § 245. "Where goods are sold to a committee of a club, party, or 
 society, for the society, the vendor is not bound to look to the other 
 members for his payment, but may recover in an action against them 
 alone.' 
 
 §'246. When goods are sold to be paid for in lab'or by the pur- 
 chaser, an action will not lie for them so long as he does not make 
 default in his contract to pay for them. The same rule applies in all 
 other cases where there is an agreement for payment otherwise than 
 in money .^ There must be a demand to put the purchaser in fault.* 
 
 § 247. Where I sell goods for a note of a third person, which the 
 purchaser, knowing that the maker was insolvent, fraudulently passes 
 . to me to be collected at my risk, I may return the note arid avoid 
 the sale for the fraud, and bring my action for the goods as wrong- 
 fully detained from me, or for their conversion by the defendant.^ 
 It is sufficient if the note is returned on the trial, or, if it is the 
 vender's note, that it is produced and canceled on the argument of 
 the case on appeal, and this even if the note has been for a time out 
 of the vendor's hands, provided he has the possession and owns it 
 when he produces or cancels it." But I cannot maintain an action 
 on the contract for the goods sold; for if I affirm the contract of 
 sale, I have received the price for them in the note.' So Where one 
 falsely represents the vendee, to be of ability to pay, upon which I 
 trust him with goods, my action against the person fraudulently 
 recommending him is not for the sale of the goods, but for the deceit.* 
 
 § 248. The action, however, was maintained where a father fraudu- 
 lently represented to the vendor that he was about relinquishing 
 business in favor of his son, and the vendor thereupon sold goods 
 upon credit to the son, it appearing that the father dealt with the 
 proceeds.' 
 
 § 249. If I order a tradesman to send me, on credit, a certain 
 
 ' 1 Peake, N.P. 39. « 18 N. T. 295. 23 id. 364. 32 Barb. 
 
 » 3 Com._on Con. 356. 1 Bro. Ch. Cas. 171. 38 id. 375. 43 id. 554. 15 Cal. 213 
 
 101. ' 29 id. 589. Supra, § 333. 
 
 » 18 John. 66. 18 id. 169. 3 Com. 88. ' 18 N. T. 553. 4 Paige, 537. 3 Camp. 
 
 15 Ark. 378. 5 Wis. 400. 10 id. 87. 30 352. 
 
 Ala. 68. 28 lU. 493. ' 1 Camp. 4. 
 
 * 16 "Wig. 87. » 1 Stark. 17. 
 
 ' 4 Paige, 537. 33 Barb. 171. 29 Cal. 
 589. 
 
WAEEANTIE8. 121 
 
 quantity of goods, and he sends me a less quantity and upon a shorter 
 credit, the sale is not perfect unless I receive the goods upon his 
 terms, and I am not liable to pay for them if they should be lost on 
 their way to me. The same rule applies where more goods are 
 sent than ordered, or by a different conveyance.^ If, however, I 
 accept them, I am obliged to pay for them.* 
 
 § 250. Where I leave with you and another person a carriage to 
 be sold, and the proceeds to be applied to pay debts due to you and 
 to him, instead of selling it you keep it a year, use it as your own, 
 get it repaired on your own account, the other creditor refusing to 
 join in the repairs, and offer repeatedly to sell it, in an action against 
 you by the other creditor for his debt, he can recover on the ground 
 that you have become the purchaser of the carriage, because you 
 might and should have sold it within the time.' 
 
 § 251. "Wakeantibs made upon the sale of chattels, are, with the 
 following exceptions, express, and not implied contracts, and must 
 be made at the time of the sale, or prospectively in view of it.* 1. 
 The vendor, without any special contract, warrants his title to the 
 goods sold, if they are in Ms possession ,• otherwise not." In sales by 
 pawnbrokers, sheriffs on executions, or executors, administrators, or 
 trustees, or in other cases where the vendors d-o not profess to sell the 
 goods as their own, but as those of another person, they do not warrant 
 their title longer than the purchase money remains in their hands or 
 Under their control.' The vendor warrants the genuineness of a prom- 
 issory note sold by him.'' If it is a patented article that is sold, there is 
 a further implied warranty of the right to use it.' A pledgor warrants 
 his title to the property pledged.' 2. A dealer in articles to be con- 
 sumed by his customers, warrants that they are sound and whole- 
 some ; '" but not if the sale is as merchandise, and not for immediate 
 consumption by the purchaser." An English case holds that this 
 
 ' 3 Jolrn. 534. 5 Wend. 358. ■ 3 Hill, Ind. 365. 7 Minn. 414. 2 Com. on Con. 
 
 137. 6 id. 308. 1 Allen, 160. 18 Wis. 363. 34 Cal. 458. 31 111. 107. 33 id. 411. 
 363. 43 Mo. 133. Supra, § 339. ' 3 Story on Con. § 833 and refs. 
 
 "9 Bam. & C. 386. 1 Camp. 53. 5 ' Story on From. Notes, § 118. 15 John. 
 
 Wend. 353. 6 Hill, 208. 18 Wis. 363. 340. 3 Allen, 258. See 19 Wend. 557. 
 
 ' 16 John. 335. Infra, § 398. 31 Ind. 411. 
 
 * 3 Stoiy on Con. § 837. 26 Eng. L. ' 35 How. Pr. R. 440. See 33 Wis. 74. 
 &E.254.- 11 Wend. 584. '30 031.372. 
 
 • 2 Story on Con. § 833. 1 John. 374.. » 12 John. 468. 18 Wend. 449. 50 Barb. 
 6 id. 5. SO id. 196. 3Cowen,273. 26 N. 116. 18 Mich. 51. 
 
 T. 324. 39 id. 320. 40 id. 283. 6 Tran- " 5 Denio, 617. 1 id. 378. 3 E. D. 
 
 script, 133. 39 Barb. 373. 20 Mis. (5 Ben- Smith, 234. 3 id. 334. 3 Story on Con. 
 
 nett)339. 3Sneed,193. 1 Head, 506. 17 §838. 18 Mich. 51. 
 16 
 
122 OF eONTBACTS. 
 
 warranty applies only to provisions sold by general dealers who are 
 in the trade, as victualers, taverners, butchers, and the like, and not 
 to others.^ There is no implied warranty of soundness of cattle brought 
 to a market by a drover, and sold to a butcher to be slaughtered.^ 
 3. One who contracts to make and deliver an article, warrants that it 
 will be of good quality for the purpose intended.^ If^ however, the 
 maker is directed and controlled in its manufacture by the one ordering 
 it, then there is no such warranty. In such a case the manufacturer 
 is only bound to use diligence and skill ; he does not wairrant the 
 result -any further than these are concerned.* 4. Where goods are 
 sold by sample, a warranty is implied that the bulk of the goods is 
 equal to the sample.^ It must, however, appear that the sample 
 was shown and the sale was intended by the parties as a sale by 
 sample.^ 5. Where goods are ordered of a certain character, or 
 where goods of a certain described quality are offered for sale, and 
 are purchased without an opportunity for the purchaser to examine 
 them.' 
 
 § 252. It is unnecessary to use the word " warrant," for no particu- 
 lar form of words is necessary to constitute a valid warranty. Any 
 positive affirmation respecting the thing to be sold, which the pur- 
 chaser may rely upon as a fact, and not the expression of an opinion, 
 is sufficient ; * as if in a negotiation for the sale of a horse, I say " I 
 promise youJae is > sound," or "you may depend upon it, the horse 
 is perfectly quiet, and free from vice," or that the horse " was not 
 lame, and that he would not be afraid to warrant that she was sound 
 every way, as far as he knew ;" or ^' well, the cow is all right ;" 
 or that a jack " is a good and sure foal-getter."^ If a horse is pur- 
 chased to use in harness, and the vendor says he is "all right," this 
 is a warranty 6f his soundness, and of his fitness for use in harness.^" 
 
 ' 16 Mees. & Wela. 644. Barb. 304. 1 Bosw. 480. 3 Hilton, 187. 
 
 = 3 E. D. Smith, 334. 4 Camp; 144. 3 Head. 445. 
 
 "33 Wend. 350. 3 E. D. Smitb, 58. Id. ' 3 Story on Con. § 838. 1 Pars, on do. 
 
 375. 13Ina.46. 11 Olaio, N. 8. 48. 13 4^63. 3 T. R. 57. 19 JoM. 390. 30 id. 
 
 Wis. 376. 3 Story on Con. § 836. 33 111. 303. 4 Cowen, 440. 33 Barb. 134. 24 
 
 353. id. 549. 36 id. 141. 44 id. 536. 53 id. 601. 
 
 * 3 Nevada, 141. 1 HUton, 366. 87 Penn. 147. 5Cal. 471. 
 
 ' 6 Cowen, 354. 9 Wend. 30. 18 id. 18 Wis. 196. 28 Ind. 125. SO id. 314. 13 
 
 435. 9 Ind. 572. Minn. 109. 33 Iowa, 357. 45 111. 496. 
 
 ' 18 Wend. 435. 19 id. 159. 1 Seld. " 3 Man. & R. 3. 19 John. 390. 13 
 
 73. Id. 105. 3 Story on Con. § 885. Wend. 377. 1 . Met. Ky. 444. See also 6 
 
 Infra, § 259; Barb. 557. 13 id. 386. 4 E. D. Smith, 
 
 ' 3 Kent's Com. 479. 3 Story on Con. 303. 36 Eng. L. & E. 354. 
 
 §834. 17 Wend. 377. 23 id. 350. 84 " 13 Wis, 600. 
 
WAEEAA^TIES. 123 
 
 If it should appear that he balked seven weeks after the sale, this is 
 too remote from the sale to be a breach of the warranty,^ but evidence 
 that he was balky " a few days " after the sale, is evidence that he 
 was balky at the sale.' If, how^ever, the affirmation is qualified, as 
 if I . say, " the horse is sound as far as I know," or " I think him 
 sound," it will be held a mere expression of opinion, unless it appear 
 that I knew he was not sound, and in the latter case, the vendee 
 might repudiate the sale on account of the fraud.* In one case* this 
 distinction was not adverted to, and a statement by the vendor of the 
 soundness of a horse, and that he was not afraid to warrant it " as 
 far as he knew," was treated as simply that he was not afraid to 
 warrant. Whether the affirmation was understood and intended by 
 the parties as a warranty is a question of fact for the jxiry, or for the 
 justice where there is no jury.' The affirmation may be made at any 
 time while the treaty for the sale is in progress, although the sale 
 does not take place for some days, the general rule being that the 
 warranty must be made at the time of the sale ; but the negotiation 
 may continue for several days, and the warranty may be made during 
 the time, and prospectively in reference to the final completion of 
 the sale.* One made after the sale would be void, unless upon a new 
 consideration, or upon one distinct from the sale, and then it would 
 be valid.' It may be that the article will continue sound for a year, 
 or answer a particular purpose.' It was held, in one case, that repre- 
 sentations made a month before the sale were too remote to be bind- 
 ing.' Any mere commendation, by the vendor, of the property he 
 is selling, is not a warranty, unless the case shows that both parties 
 understood it to be one.^" 
 
 § 253. A general warranty relates to the general character of the 
 
 article warranted, as that a horse is free from disease, or free from 
 
 , vice. In case of such a warranty, although it may be in writing, if 
 
 the article has any defect which is pointed out to the purchaser, or is 
 
 > 15 "Wis. 550. ^ S3 id. 134. 1 Hilton, 366. 13 Wis. COO. 
 
 " 9 Minn. 194. 14 id. 358. 28 Ind. 135. 
 
 » 1 Stoiy on Con. §§ 506, 511, 838. 1 « 3 Story on Con. § 837. 3 Ld. Eay. 
 
 Pai's. on Con. 463, &c. 3 Caines, 48. 4 1130. 11 "Wend. 584. 18 "Wis. 196. 
 
 John. 431. 5 id. 354. 4 Cowen, 440. 8 ' 3 Story on Con. § 837. 3 Ld. Eay. 
 
 id. 35. 6 Barb. 557. 34 id. 549. 4 Car. 1130. 13 Wend. 446. 14 Wis. 358. 3 A. 
 
 & P. 45: 5 Man. & K. 134. 3 T. K. 57. K. Marsh. 143. 3 Scammon, 33. 
 
 30 Mis. (9 Jones) 406. 37Penn. 147. » Doug. 785. 3 Story on Con. § 837. 
 
 * 13 Wend. 377. " 40 Maine, 9. 
 
 » 3 Story on Con. § 838 b. 8 Cowen, 25. "45111.496. 
 10 Wend. 411. 13 id. 277. 19 Barb. 574. 
 
124 OF COHTBACTS. 
 
 plainly Tisible, the warranty will not extend to it.^ If, therefore, a 
 horse is lame, or diseased in his eyes, and the purchaser is informed 
 of the fact, a warranty that he is sound will,' in effect, only be that 
 he is sound excepting such defect. The purchaser in such cases if he 
 wishes to guard against it, should require a special warranty which 
 refers to a particular quality df the article ; as that the lameness of 
 the horse will not be permanent. But, it is to be noted here, if there 
 is any question whether the defect was made known, or was obvious, 
 that question is one of fact to be submitted to'a jury.* And the 
 vendor must not use any artifice, or say or do anything whatever to 
 divert the eye, or obscure the observation of the buyer, or to other- 
 wise mislead him, even in relation to open defects. If he does so, he 
 is guilty of fraud.' If the vendee is unable to discover the defects 
 for want of skill, or of eyesight, a general warranty is sufiBcient.* 
 
 § 254. Notwithstanding a sale may be made with a warranty, yet 
 if there has been any willful misrepresentation, concealment, or fraud 
 by the vendor, either as to the kind, soundness, quality, or, other par- 
 ticular of the article sold, the vendee may disregard the warranty, 
 and either return it and recover the price paid, or bring his action 
 for his damages for the fraud.^ And it will not affect his right to 
 show the fraud by parol evidence that the contract for sale -\^as in 
 writing, and silent as to the fraudulent inducements.* Where there 
 is no fraud, but a warranty only, the vendee cannot restore the goods, 
 but is limited to his action on the warranty,' except in case of execu- 
 tory sales.* It is doubted in JSTew York if a return can be made for 
 a breach of warranty on sg,les by sample.* In England it is held that 
 it can be. 
 
 § 255. ]Sro warranty is iipplied from the sale of an article under 
 the name of another, differing from it in species, or from the descrip- 
 tion in a bill of parcels;" as yaheme peachamwood, of little value, 
 was sold as Irazilletto, a more valuable article ;" or help for larilla, 
 which it somewhat resembles ;^^ scarlet cuttings for what were not 
 
 ' 2 Gaines, 202. 2 Denio, 79. 34 Barb. » 3 Bam. & Cress. 623. 
 
 367. 24 Ala. 424. 27 Geo. 275. 3 Head. '3 Hill, 288. 4 id. 635. 4 Kem. 597 
 
 314. 41Vt.631. 6Bosw. 148. 
 
 '34 Barb. 367. » 33 Wend. 350. 1 Seld. 86. 
 
 » 3 Bl. Com. 165. ^ » 4 Kern. 597 ; but see 1 Seld. 98. 99. 
 
 * 2 Story on Con. § 880. 3 Bl. Com. " 2 Barn. & Ad. 463. 1 Carr & K. 561. 
 
 166. 34 Barb. 367 and refs. 2 id. 557. 
 
 "18 Wend. 462, 463. 2 Hill, 288. 4 id. " 2 Gaines, 48. 
 
 635. 4 Kem. 597. 7 Wis. 503. Story on " 30 John. 196. 
 Con. § 850. 13 Ohio, N. S. 502. 
 
WAKEAUTIES, 125 
 
 scarlet cuttings ; ^ an inferior stone for a hezoa/r stone ; ^ or pepper- 
 mint oil, described as pure^ when in fact a portion was impure.' In 
 such eases the law requires the purchaser to attend when he makes 
 his bargain, while the article is equally open to the inspection of 
 both parties, and implies no warranty from the name applied to it. 
 If, howeyer, the vendor knew that the article was a different one 
 from that for Which he sold it, the purchase might be avoided by the 
 buyer on the ground of the fraudulent representation.* 
 
 § 256. In an ordinary sale of merchandise for the market price of 
 a good article, where there is no express warranty, there is no implied 
 warranty that the article is merchantable, although it may be utterly 
 unfit for the purpose to which it is applied. This was held in a case 
 where flour, made from grown wheat, which rendered it unfit for 
 ordinary bread and to manufacture into starch, was sold.^ The 
 doctrine has also been applied where white lead, adulterated with 
 Spanish white, was sold at the full market price.* 
 
 [§ 256a.] Articles are sometimes purchased for a specific purpose, 
 and this to the knowledge of the vendor ; but a warranty of their 
 fitness therefor cannot be implied from that knowledge alone.'' 
 
 § 257. A mere expression of an opinion in relation to the quantity, 
 quality, or worth of an article sold does not amount to a warranty. 
 Every, person, in making a purchase, reposes at his peril in the opinion 
 of others, where he has equal opportunity to form and exercise his 
 own judgment.* And where the goods are exposed to his inspection 
 ■he must judge for himself; and if he place implicit confidence in 
 the opinion of the seller, he does so at his own risk.' The maxim, 
 ca/veat emptor, let, the purchaser beware, properly apphes in such a 
 case. 
 
 § 258. "Where one contracts for the sale and delivery of an article 
 at a future day, and there is no selecting or setting it apart, as to 
 furnish a quantity of wheat for a certain price, the merchantable 
 
 ' 1 Stark, IT. P. 410. 73. Id. 95. 21 N. Y. 553. 13 Ohio, N. 
 
 " Cro. Jac. 4. S. 502. 
 
 ' 36 Barb. 141. See also 9 Met. 83. 3 '84 N. T. 118. 34 Barb. 607. 6 Duer, 
 
 Kawle, 23. 1 Seld. 83. 1 Pars, on Con. 330. See 8 Wis. 352. 
 
 463, and note 0. 2 Kent's Com. 479. 17 '5 John. 354. 6 Seld. 319. 19N.Y.499. 
 
 Wend. 370. 43 Barb. 470. 3Buls.95. Cro. Jac. 386. 13 
 
 * 18 Wend. 463, 463. 31 N. T. 553. 111.374. 39 Penn. 88. 13 Ohio, N. S. 503. 
 
 6 18 Wend. 449. 31 HI. 347. 1 Iowa, 531. 30 Ind. 314. 
 
 '4 John. 421. See also as to the general » 1 Eol. Ab. 101, pi. 16. 1 Sid. 146. 1 
 
 rule. 4Zab. 357. 15 Grat. 573. 1 Seld. Lot. 103. 2 Ld. Kay. 1118. lGreenl.389. 
 
 12 East. 633. 19 Wend. 159. 
 
126 - OF CONTBACTS. 
 
 quality of it is implied.^ So, where a contract ia made^ witli a 
 meclianic to make and. furnish an article in his line of .business, an 
 obligation is implied to make it in a skillful and workmanlike nianner, 
 of good material, and that there is no latent defect in its manufacture.* 
 Here the purchaser, when making his contract, cannot inspect- the 
 article, and must rely upon the honesty of the seller ; and this fur- 
 nishes the reason for a rule different from the one where the contract 
 of sale is not an executory one. But where the vendor agreed to 
 sell and deliver his growing crop of corn on a certain piece of land, 
 to be delivered "in. merchantable order," it w^s held that he was 
 obliged only to deliver all the merchantable com that grew on that 
 land.' And a contract, at a price certain, for all the wheat one raises 
 on his farm, does not raise any implied wan-anty, either as to the 
 quantity or quality of the grain.* In all these cases of implied war- 
 ranty on executory sales, as well as where the contract expressly 
 provides that the article sold shall be of merchantable quality, if an 
 inferior one be delivered and accepted, the purchaser is not entitled 
 to a reduction from the contract price. He should refase to accept 
 it, or if he has received it without discovering its quality, return it 
 to the vendor as soon as he ascertained it.' This class of cases are 
 not strictly warranties, but contracts to which these peculiar provisions 
 are incident.' 
 
 § 259. "Where a sale is made by a sample, in order to raise an 
 implied warranty that the bulk of the article is of a quality equal to 
 the sample, it is necessary to show by the circumstances of the case 
 that the sale was intended by the parties to be by the sample. It is 
 not enough that a sample drawn from the bulk is shown, for the 
 purchaser in that case purchases "at his peril.' This was held where 
 the plaintiff agreed to purchase fifty bales of cotton at a price " if 
 the cotton was equal to the samples exhibited." The court held 
 that the question vas properly left to the jury, whether the purchase 
 
 ■ 2 HUl, 137. 4 Comstock, 133. 34 ' 3 Kent, 480", and refs. 30 How. U. S. 
 
 Barb. 304. 38 id. 315. 41 id. 454. IBosw. 149. 3 John. Cas. 358. 13 Join. 319. 18 
 
 480. 18 m. 430. 33 id. 388. 5 Cal. 471. Wend. 463. 33 id. 353. 3 HiU, 388. 4 
 
 = 30 Wend. 61. 33 id. 350. 31 N. Y. Comstock, 133. lSeld.86. 39N.Y.358. 
 
 553. 3 E. D. Smith, 375. 1 Wis. 430. 3 43 Barb. 40. 61 id. 353. 53 id. 133. 4E. 
 
 id. 347. 13 id. 376. 16111.69. 19 id. 565. D. Smith, 303. 30111.385. 
 
 13 Ind. 46. 11 Ohio, N. S. 48. 31 Miss. " See 4 Comstock, 135. 
 
 91. ' 18 Wend. 425. 1 Seld. 75. Id 96. 4 
 
 ' 34 Barb. 304. Duer, 69. Supra, § 351. 45 111. 496. 
 
 « 14 Ind. 158. See also 39 N.T. 858. 7 
 Abbott, 463. 
 
WAEEANTIES. 127 
 
 was intended to be by the gample.^ The fact that the article is in 
 bales, as hemp or cotton, so as to render it inconvenient to examin 
 it, does not warrant a disregard by the purchaser of the rule, caveat 
 emjptoT. There must be an inability to make the inspection from 
 lack of opportunity.' If damaged goods are sold by sample, the 
 sample shown should be a fair specimen of the whole, of the bad as 
 well as the good ;^ and where goods are sold by sample, the articles 
 must correspond with it, or they may be rejeGted.* 
 
 § 260. "Where an article has been sold with warranty whether 
 express or implied, and whether by sample or otherwise, upon its 
 breach an action for damages may be brought without offering to 
 return the article or giving notice of the defect. And the purchaser 
 may recover his damages although he sells the article.^ And this 
 although no claim has been made upon him, and even where he is 
 not liable to any one on account of the alleged defect.^ The warranty 
 does not of itself authorize him, on discovering that the article does 
 not correspond to it, to repudiate the contract of sale and return the 
 article and recover its price, even if he wishes to. To entitle the 
 vendee to do this, there must be either an agreement to that effect, 
 or fraud on the part of the vendor.'' And the return should (except 
 in some exceptional cases) be made promptly.' If several articles are 
 sold at the same time, at separate prices for each, if one is defective, 
 it may be returned in a proper case without returning all the rest.' 
 The measure of these damages is the difference between the actual 
 value, and what its value would have been if it conformed to the war- 
 ranty.'" The price paid does not determine the damages. For I may 
 have purchased, at fifty cents, an article warranted perfect, and the 
 value of which; if perfect, would have been one dollar, and after the 
 purchase, by reason of a defect, the article is worth only seventy-five 
 cents. Here, notwithstanding the article is worth more than I paid 
 for it, it is clear that I have lost twenty-five cents by reason of its 
 not conforming to the warranty, and this is the true measure of my 
 
 ' 18 Wend. 425. 6 Bosw. 148. 17 Ind. 612. See 23 id. 51. 
 
 » 17 Wend. 375. 19 id. 159. lSeld.73. Infra, § 361. 
 
 '19 Barb. 574. 45 lU. 496. "lDenio,69. 6 Ind. 36. 14 id. 49. 20 
 
 * 9 Ind. 572. 45 lU. 496. See 4 Eern. lU. 285, 85 id. 103. 7 Wis. 503. 
 
 497. « 3 E. D. Smith, 318. 
 
 ' 1 H. BL 17. 12 Wend. 566. 18 id. " 3 HiU, 388. 4 id. 625. 1 Comstock, 
 
 435. 4 Kern. 597. 312. 4 Kern. 597. 17 Barb. 518. 38 id. 463. 
 
 •4 Kern. 597. 3 Hilton, 137. 6 Bosw. 148. 3 Hilton, 53. 20IU.180. Id. 
 
 '3 Hill 388. 4 id. 635. 4 Kem. 597. 184. 33 id. 146. 84 id. 607. 33 id. 146. 
 
 11 Iowa, 258. 37 Ind. 37, 2)3 id, 143. 
 
128 ^ OF CONTEAOTS. 
 
 damages.^ Where cabbage seed, warranted to be of a certain variety, 
 proved otherwise, it was held that the damages were the value of such 
 a crop of the variety warranted, as would have been ordinarily pro- 
 duced that year, deducting the expense of raising it, and the value 
 of the crop actually raised.^ And where goods were sold by sample, 
 and were not such as warranted, the vendee having sold them, he was 
 allowed as damages the difference between the re-sale and their value 
 if of the quality represented.' Where a warranted horse was returned 
 because unsound, it was held that the. price paid afforded the rule 
 of damages, in an action on the warranty^* If diseased cattle are sold 
 as healthy, then also any other immediate injury, resulting from tho 
 breach of warranty, as expenses, may be recovered for.' 
 
 § 261. Cases frequently arise, however, as was said in the last sec- 
 tion, where a warranty is accompanied with- a contract authorizing a 
 return of the article if it is not what it is warranted to be. As where 
 the terms are " I warrant the horse to be sound, and if he is not you 
 may return him." Here the purchaser may cancel the contract of 
 sale if the horse is not sound, and the general rules governing con- 
 tracts apply .^ 
 
 § 262. In an action by the vendor for the price of a warranted 
 article, the vendee may, in his defense, show the warranty and its 
 breach, and his damages thereon in reduction of the contract price, 
 although he has made no offer to return it, or to cancel the sale.'' So, 
 where one gives three promis/ory notes for the price of goods war- 
 ranted to him, and he has paid two of them, he may give in evidence 
 a breach- of warranty in respect to a part of the goods in defense of 
 the third note.* In an action against the vendor, he may recover his 
 damages for breach of warranty after payment of the notes, although 
 before he paid them he had discovered the breach, if he had not at 
 the time ascertained the extent of his damage.^ 
 
 § 263. If the contract for the sale be in writing, no warranty can 
 be shown except such as is expressed in it or necessarily implied from 
 it '^" And no oral agreement at the time, in such a case, to warrant 
 
 '4 Hill, 637. See 24 Barb. 549. SOSandrefs. 2HUton,132. 1 Iowa, 581. 
 
 34 N. Y. 634. 1 Ellis. B. & E. 84. 21 111. 180. 6 Ind. 26. 4 Cal. 345. 12 
 
 ' 38 Barb. 463. ' See 7 C. B. N. S. 145. Wis. 276. So in case of fraud. 21 Mis. 
 
 6 Hurl. & N. 512. 27 Ind. 27. 6 Ben. 415. 
 
 *20IU. 348. " 10 Wend. 512. IL Ind. 112. 
 
 ' 21 ni. 180. » 12 Wend. 566. 
 
 • See 10 Cush. 88. " 1 Jolin. 414. Id. 503. 3 Wend. 459 
 
 ' 4 Wend. 483. 8 id. 109. 3 Hill, lit 21 Mis. 6 Bennett, 338. 3 Head. 526'. 4 
 
 5 id. 63. 4 Kern. 603. 4 E. D. Smith, Taunt. 779. 
 
SALES OF HOESES. 129 
 
 the article can be given in evidence, for the reason that the writing 
 is a higher species of evidende, and when parties reduce their contract 
 to writing, it is held to embody all of its provisions.^ Where, how- 
 ever, the writing is simply a receipt of payment of the purchase price, 
 and not a bill of sale or other evidence of the contract its6lf, parol 
 evidence of a warranty may be given.' If, on the other hand, a 
 written warranty is given, it may be shown by parol that there were 
 visible defects in the article of which the vendee was apprised at the 
 time of his purchase.^ 
 
 § 264. Actions for breach of waeeaittt, or for featjd m the sale 
 OF A HOESE, are of very frequent occurrence in justices' courts. The 
 former are brought upon the contract and the latter not ; yet as the 
 facts which appear in the trials of both classes of actions are of a 
 similar nature, an enumeration of the rules derived from the cases 
 (some of which are sustained by cases not arising on the sale of horses, 
 but of other property as to which the same rule applies) is here 
 given : 
 
 1. In order to recover against the vendor in an action for the 
 unsoundness or vice of a horse purchased of him, there must be shown 
 either a warranty against it, or a fraudulent concealment of the fact, 
 or a misrepresentation by the vendor.* A sound price is no war- 
 ranty.® The warranty must be made before or at the time of the 
 sale. One made after is void for want of consideration,* unless made 
 upon a new consideration, in which case it is valid.'' 
 
 2. If a horse have a secret malady, unknown at the time to the 
 vendor, and there be no warranty, the vendor is not liable. And the 
 same rule applies if the vendor gives an erroneous opinion in regard 
 to it.^ But if one, without knowledge of its truth or falsity, makes 
 a material niisrepresentation, he is as guilty of fraud as if he knew its 
 untruth.^ t 
 
 3. If any deceit is practiced by the seller, either by misrepresenta- 
 tion or willful concealment, the purchaser may retain the horse and 
 bring his action for the damages he has sustained in consequence of 
 the fraud, or he may, on discovering the deceit, return the horse and 
 recover the price paid.'"' If he returns it, it must be returned within 
 
 'See infra, §§1430, 1421. 
 
 34N.T.338. 
 
 « 5 Har. Del. 333. 
 
 ' 34 K. Y. 338. 4 Mees.^ 
 
 & Wels. 140. 
 
 '14 Wis. 358. Supra, §253. 
 
 1 Foster, 334. 
 
 
 ' 3 Bosw. 75. 
 
 " 3 Gaines, 303. 
 
 
 ' 1 Stoiy Eq. § 193. 31 N. T. 238. 36 
 
 *1 Doug. 18. 3 East. 314. 
 
 33 Barb. 652. 
 
 Barb. 378. 29 Ala. 34fi. 35 id. 252. 
 
 ' Supra, § 356. 
 
 17 
 
 
 » 1 Oar. & Payne, 33, 7 "Wis 503. 
 
130 ' OF CONTEACTS. 
 
 fl reasonajjle time after the (iiscovery, and in the same state as when 
 .epld.^, 
 
 4z. There may b.e a warranty and also a fraud in the same sale. In 
 stich cases .the ^purchaser may, rely npon the one or the other. He 
 may sne upon 'the warranty,, or return ithe, horse for the fraud, ^and 
 recover back the money paid, or. m^y retain the horse and bring his 
 aetion for his dama,ges.* 
 
 .5. There may be a warranty, and also a provision in the contract 
 of sale authorizing a return of the horse if he were not what he was 
 warranted to be. In this case the purchaser may rely upon either. 
 If. he wishes to rescind he anust return the property or offer to, or 
 .give notice of his intention to rescind. Such an agreement, though 
 ■said to be unusual, is not illegal.^ Where on the sale of a horse it 
 was agreed that "should the beast prove unsound, a deduction to be 
 made by two persons," it was held thisiprecluded either from demand- 
 ing a return of the horse.* 
 
 6. Any assertion or affirmation in relation to the soundness, con- 
 dition, ^ge, habits or freedom from vice of a horse, made: during the 
 negotiation of the contract of sale, or in contemplation of it, and as an 
 inducement to it, is a warranty. An expression of an opinion as to 
 his qualities is however not a warranty.' It is for the jury to say 
 whether the yendor did warrant or not, and this is to be determined 
 by the lai^uage used." 
 
 T. A general warranty does not cover -any particular defect, which 
 at the time of the sale is raanifest, or which is pointed out to the 
 purchaser, but is construed to except all such defects.' But these 
 defects must ,be such as could be discavered by an ordinary observer, 
 , and do not require skill to detect them; and this is a question ofrfact 
 for the jury, or the justice when the trial is before him alone.^ 
 
 8. A vicious habit in a horse is not an unsoundness, as a habit, of 
 crib-Mting, or being a roa/rer, where it is not shown to be symptomatic 
 of disease or infirmity.' 
 
 .9. To comply with a warra;ity' or a representation that a horse is 
 sound, he must be at the time in^goodhealtii and free from infirmity." 
 
 '3 H. Black. 573. 3 Esp. 83. 7 "Wis. » 13 Wis. 600. 23 Barb. 134. 4 E. D. 
 
 ■TOS. Supra, §360. S3Vt.l. 3T.E.74g. Smith, 205. 
 
 " 4 Kern. 597. 6 Bosw. 148. ' 7 Bing. 603. 8 id. 454. 34 Vt. ,604. 
 
 •5 Dutch, 371. 18Md. 243. 34 Barb. 367. 2 Caines, 202. 5Mooie& 
 
 * 17 Ind. 613. P. 606. 1 Moore & S. 622. 
 
 • 4 Cowen, 442. 22 Barb. 134. 34 id. ' 34 Barb. 367. 
 
 549. 4 E. D. Smith, 202. 5 Cal.471. 12 '3 Camp. 533. 1 Holt's N. P. 630. 
 Ind. 118. 20Jphn. 203. " 13 Wis. 673. IH. B1.17. 
 
SALES OF HOESES. 131 
 
 If he have a permanent cough,^ or is lanie,.thoTigh temporarily only ;" 
 or if he have been newed (}aj dividing one of the nerves leading 
 'from the foot to the leg, to relieve a horse from the pain of a disease 
 ■in .the foot),* or has the seeds of the glanders, which afterward develop 
 into the perfect disease;* or have any other organic defect, he is 
 unsound. Some of the cases further hold, and such is doubtless the 
 rule, that temporary coughs, or other diseases or injuries, are p,lso 
 unsoundnesses.® ;So, a latent defect, which renders a horse less fit 
 for present use and convenience, and can only be discovered by per- 
 sons skilled in horses, is a breach of a warranty.® Gne case lays down 
 ithe rule ;th9,t the question was, whether there was a disease existing 
 of a vital organ, in a forward ;State; and that a disease of any sort, 
 easily removed, but by neglect or maltreatment allowed to prove 
 fatal, should not be accounted an unsoundness.'' But this is hardly 
 sustainable within .the principle of other decisions. 
 
 § 365. Where the plaintiff broiight his action to recover the price 
 of a horse sold under the .following warranty, viz.: " Jo be sold, a 
 black gelding, five .years old ; has;been const3.ntly driven iathe plow ; 
 warranted ;" it was held that the warranty applied to soundness 
 only.* Where a horse was ^w.^rranted " a thorough-brpke horse for a 
 gig;" and the purohaser had no opportunity of using him in a gig for 
 two months, but other persons had done so, and he ,had always 
 answered the warranty, but after that the purchaser himself drove 
 him, when he kicked and broke the gig, b^t it appeared that he was 
 an unskillful, driver; it was held that the hprge. answered; the warranty 
 at:the tiiooihewas sold, 9.nd:his bad demeanor was owing to jmskillful 
 driving.' Where the warranty was, "sound in the eye, . except a 
 slight snap which will be well. in a few days," the;exception,washeld 
 ,to :be a material portion of the warranty.^" 
 
 § 266. Where the evidence of a warranty was a letter from 4he 
 purcha^ser tp the vendor, in which he wrote, ^' you will remember 
 that you .represented the horse to me as a five year old,. etc.," tp 
 which the vendor wrote back, "the 'horse is as I ; represented, it,' 'it 
 was held sufficient to justify a jury in finding a warranty at the 
 time of the sale that the horse -^vas five years, old." So, where onan 
 
 ' 2 Chitty E. 435. ' 9 Rich. Law, 276. 
 
 " 4 Camp. 281. '8 Moore, 338. See also 1 Mpove & 
 
 ' Ry. &Moody,.290. Scott, 74 8Bmg.48. 5 Car.* P. ^8. 5 
 
 * 10 Cush. 520. Moore & P. 534 7 Bing. 674 
 ' 9 Moore, 356. 1 Stark. 102. -5 J(?ues, " 5 Dow. 59. 
 
 Law, 187. "2 Smith, 394 
 
 • 5 Harring, 288. " 2 Oar. & P. 211. 
 
132 ' OF CONTRACTS. 
 
 exchange of horses, A asked B what was the matter with his horse, 
 and B answered, " the horse has the distemper a little," is was held 
 that this was, in effect, a warranty that it was not otherwise diseased.* 
 Again, where a horse was purchased, to the vendor's knowledge, to 
 be used in harness, and he said he was "all right," this was held a 
 warranty of soundness and fitness for use in harness.^ 
 
 § 267. "Where, instead of paying the money for a horse, the pur- 
 chaser pays in some other chattel, if the vendor has been guilty ot 
 fraud in the sale, the purchaser may return the horse and bring his 
 action for the chattel given for it. If, however, he received in the 
 trade some other article with the horse, he must return, or offer to 
 return, all that he received, before he can, recover for the whole con- 
 sideration. He may, however, without this, recover his damages for 
 the deceit.' If the vendor has made an assignment for the benefit 
 of his creditors, the return, or offer to return, must be made to the 
 assignee.* 
 
 § 268. If the vendor uses any artifice to conceal unsoundness or 
 other faults, he is guilty of a fraud.^ Therefore where the vendor 
 of a horse knowing that he was subject to blindness, which was tem- 
 porarily relieved by the use of remedies, while exposing him to sale 
 observed that "his eyes looked dull but this was occasioned by 
 having traveled over dusty roads," and refused to warrant him, but 
 soon after the sale, on the purchaser riding him, he became totally 
 blind, it was held that the vendor was guilty of fraud in not dis- 
 closing what he knew of the condition of the horse.* This rule, 
 however, must not be understood as going further than to condemn 
 the use of artifice, for it is well settled that the vendor is not obliged 
 to point out the defects in the property, unless he is questioned 
 relative thereto. The maxim is, let the purchaser, not the vendor, 
 beware.' 
 
 § 269. Where -one sells an article "with all its faults," the mean- 
 ing of the contract is that the purchaser shall rely upon his own 
 examination. The ve;iidor must not, however, in such a case under- 
 take to conceal any defect, for if he does he will, notwithstanding the 
 provision, be guilty of deceit, and thus render the sale void, at the 
 
 •4Ina. 637. °4 Hall's Law Joum. 618, quoted at 
 
 " 13 Wis. 600. " length in 2d and 3d eds. of tliis Treatise. 
 
 » 4 Mass. 503. ' 4 Kent. 478. 1 Seld. 83 and refs. 4 
 
 « 33 Barb. 171. Zabris. 257. 
 " 4 Taunt. 784, per Heath, J. 
 
WORK, LABOE XSD SERVICES. 133 
 
 option of the purchaser.' "Within the same principle, it held that a 
 stipulation, in a bill of sale, that the property is sold as unsound, 
 excludes the idea of a waiTanty, but that such a stipulation will be of 
 no avail where the seller has resorted to any contrivance to mislead 
 the purchaser.^ 
 
 § 270. III. Contracts eoe work, labor and services. These may 
 be under seal, in writing without seal, and oral. They are frequently 
 for work and labor, and for materials furnished or used in the service, 
 as where I employ a carpenter to build me aMiouse, and to furnish a 
 portion or all the materials. They are subject to all the general rules 
 which govern contracts, in relation to the sufficiency, legality and 
 morality of their consideration, and to the rights of the parties claim- 
 ing under them. The contract may be express in all its parts, or it 
 may be express only in relation to the manner the service is to be 
 performed, leaving the time of performance and the price of the ser- 
 vice to be implied. It may also be implied from the circumstances 
 of the person for whom the service is performed and his obligation to 
 have it pei-fonued ; as where a physician attends ones child, who is 
 taken suddenly ill and requires his service. 
 
 § 2Y1. Where there is an express contract for a particular amount 
 and mode of payment, the party rendering the services must rely 
 upon it.* "Where no mention is made of the price to be paid for the 
 services, the implied agreement is that it should be what they are 
 reasonably worth ; where the time of payment is not expressed, the 
 implied agreement is that it shall be when the service is performed. 
 Thus, if I employ a man to build a house at a certain price, mention- 
 ing no time of payment, he will not be entitled to his payment until 
 he has finished it.^ If I hire a laborer for one year at the rate of 
 twelve dollars a month, without a special clause in the contract, he 
 cannot recover his wages until the end of the year.' If a person 
 agrees to work for a month, and then, if the parties are suited, that 
 he will work dm-ing the season, he must make his election at the end 
 of the month, and if he remains, that is evidence of his having elected 
 to stay, and he cannot be allowed to leave till the end of the season.' 
 
 §272., Where the agreement is simply to perform a particular 
 piece of work, or to labor for a certain period, whether the price is 
 
 ' Peake's N. P. 115. 4 Taunt. 779. 3 « 18 John. 169. 30. Barb. 430. 16 111. 
 
 Camp. 154. Id. 505. 4 id. 779. 5 Bam. 151. 
 & Al. 240. 1 Peters. 40, &c. ° 5 How. Pr. R. 288. See 29 111. 269. 
 
 '3 Head, 526. ' 13 John. 53. See 10 N. Y. 355. 
 
 » 4 E. D. Smith, 331. ' 23 Barb. 24. 
 
134! OF CONTEACTS. 
 
 or is not- specified in it, the person employed acquires no right to any 
 part of his compensation until he has' fully performied his part of the- 
 contract. The contract is considered entire, and he cannot perform' 
 a pdi-t of it by doing a portion of the work^ or working a portion of 
 the period,' and then breaking off without his employer's consent,^ 
 without not only forfeiting all right to recorer for what he hafe done, 
 or the time he has labored,, but also rendering himself liable in' 
 damages for breach of his contract.^ Thus, where one agreed with* 
 the owner of a cotton factoiy to spin for him ten and a half months, 
 to be paid three cents per run for the yarn he spun, and his 
 employer was in the habit of crediting Him on his books for the 
 quantity spun, it was held that the contract was entire, and' upon Hs' 
 leaving before the expiration of the terni'he could recover nothing; 
 for what he had actually spun.* M'. agreed to work for P.- for a year,, 
 and worked ten months and a half and left, refusing to work longer^ 
 but in two days returned and offered to fulfill his contract. It was 
 held that having wantonly deserted P.'s service' without his fault, he 
 was guilty of violation of the contract, and P. was under no obliga- 
 tion to recteive him again, or to pay him for his services for the six 
 months and a half.^ The plaintiff agreed to log up, burn and clear 
 fit for sowing, ten acres of land by the 20th of September, to be paid 
 at the rate of eight dollars per acre. He performed part of the work 
 and then quit it of his owa accordj without fault of the other party. 
 It was held that he could recover nothing.* A party contracting to' 
 deliver a Certain quanti'ty of lumber on a- certain day, at a certain' 
 price per foot, payable on the delivery of the whole, but who delivers 
 only a part' of the quantity on that day, cannot recover for the part 
 delivered, though it be used by the vendee.* A sailor hired for a 
 voyage and tooi a promissory note for thirty guineas, provided he 
 proceeded,- continued aiid did Ms duty as second mate from Kingston 
 to Liverpool, but died oh the voyage. It was held that no action lay 
 for what he had done.' This case was, however, made to tnm upon 
 the fact that the diity to' be performed as a condition precedent was 
 to continue to Liverpool, aiid that the contract was in some respects 
 an insurance. Where a' sailor contracted for certain wages to serve 
 
 ' 13 John. 163. 13 id. 94. 19 id. 337. = 12 John. 165. 
 14 "Wend. 257. 5 Denio, 406. 31 N. Y. = 8' Gowen. 63. See also 2 Stark, 251. 
 462. 36 Id. 331. 1 Transcript, 831. 23' 'IS John. 94. See ailso'3'Mass. 147. J& 
 
 Barb. 34. 4 Duei', 38. 22 111. 439; 38 i'd. John. 337. 
 65. 45 id. 198. 6'WiS.130. 40'Barh.54l. ' 5 Denio, 406. 
 81 Gal. 333. « 6 Term E. 320. 
 
"WOEK, LABOR AND 8EEVI0ES. 135 
 
 the master of a sMp, and.: not depart the ship without leave tmtil the 
 voyage be endied! and the vessel discharged of her cargo, and after her 
 arrival and being moored at the port of discharge, but before her 
 cargo Was discharged, he left her without leaver alli his wages were 
 forfeited, and he could recover nothing:^ In a contract to repair a 
 chandelier and make it complete for £10, no action lies for a partial 
 repair, though beneficial to the owner.' So^ where one contracted 
 to cure a flock of sheep- of the scab, he was not permitted to recover 
 for his services in curing a part, the remainder not being cured.' In 
 eases, however, of the ordinary employment of a servant for a limited 
 period, where a portion of the service is performed and the remain- 
 der prevented by the' death or illness of the servant, and not by his 
 willful default, the rule is relaxed, and it is held that a recovery may 
 be had for the labor actually done under the contract at the rate 
 specified therein ; whether the employer can claim a reduction liere- 
 from for the damages, if any, sustained by him: in eonsequepee- of 
 the servant not being ableto complete the stipulated term of service, is 
 not fully settled.* It is held that the recovery in such a case cannot 
 exceed the contract price, or the rate of it for the part of the service 
 performed.' Another class of cases is where performance is rendered 
 impossible by act of law, in which a recovery is allowed for the 
 work actually done, at the prices agreed on.' 
 
 § 273. Where, however, the person contracting to do the service 
 is an infant, and he performs a portion of it only, he may recover 
 what is the reasonable value of the service performed without refei*^ 
 ence to the contract, for the reason that his contract is void at his 
 election, and the law will imply a promise by the .employer to pay 
 what the services are worth, irrespective of the contract price. And 
 no damages can be recouped against his claim for any loss to the 
 eaaaployer by his leaving- Ms service, for the reason that hi& contract 
 was not binding upon himL.'' 
 
 § 2Y4. In contracts for work amd labor between masters and ser- 
 vants, there may be misconduct on the part of either master or 
 servant which will justify the other party in rescinding the contract.* 
 Thus if a master so maltreat his servant that he cannot safely remain 
 in his employment, or as to indicate a willingness to be rid of him, 
 
 - 13 John. 390. ' 4 Ind. 79. 5 Mich. 449. 
 
 - 4 Man. & Ryl. 1. 9 Bam. & Cress. 93. ° 4 Comstock, 411. 
 ' 6 Dowl. & Ryl. 3. ' 3 Denio, 375. 
 
 * 20 K. Y. 197. 26 id. 379. 19 Barb. " 19 Cal. 391. 3 Stark. 337. 4 Nev. & 
 
 341. 34 id. 174, 666. 3S id. 577. M. 797. 3Ad. &E. 171. 29 Barb. 160. 
 
136 OF CONTnACTS< 
 
 the servant may leave him and recover his wages for the time he 
 has served. But the employment of harsh language alone is not 
 sufficient to warrant him in leaving ; * nor is his being called upon 
 to do severe or unpleasant labor an excuse for his leaving his work.^ 
 So, if the servant is intoxicated, so as to be unfitted for the discharge 
 of his duties, or otherwise conduct himself improperly, as if he 
 assaults another of his employer's servants with intent to ravish her,^ 
 or if he refuse to perform a reasonable command of his master, he 
 may dismiss him, and the servant, although hired by the year, cannot 
 recover for the time he has served.^ In one case the plaintiff was a 
 farmer's servant, hired by the year ; he was ordered by his master to 
 go immediately with his horses about a mile, but as dinner was 
 ready he refused to go until he had eaten it, and for this cause was 
 dismissed before the end of the year. It was held that the master 
 was warranted in turning him away, and not bound to pay him for 
 the service he had already perfonned.^ And it seems that he may 
 also recover damages which, in such cases, is the difference between 
 the contract price and the price the employer was obliged to pay for 
 other labor in the servant's place.^ Other cases of misconduct are 
 where a clerk makes false entries and representations ; or in good 
 faith, and in a respectful manner, claims to be a partner ; or a servant 
 is guilty of moral misconduct, willful disobedience, or habitual neg- 
 lect, in which, and all similar cases, the master or employer may 
 dismiss him.' If it is the agreement that the employee may leave 
 in case of disagreement, a lona fide disagreement is all that is neces- 
 &^xj to allow either party to put an end to the service.* So, if it 
 provides that either may terminate it at any time, the servant may quit 
 at any time and recover on the contract for the work done." As to the 
 rale in Iowa, see Pixler v. Nichols, 8 Iowa, 106. If the servant 
 is wrongfully discharged, he may pursue one of three remedies : 1st. 
 'Immediately sue for his damages ; or, 2d, sue on a qiiantum ineruit 
 for the work done ; or, 3d, wait till the end of the term and claim as 
 damages the Avages agreed to be paid ;i'' unless it appears he has had 
 or been offered similar employment in the vicinity from others, in 
 which case a deduction of what he has or could liave received is to 
 
 ' 1 Wencl. 514. • See 8 Iowa, 106. 
 
 ' 23 111. 439. ) ' 4 Bing. N. C. 633. 6 Scott, 379. 9 
 
 ' 4 Car. & P. 308. 31 Mis. 585. Ad. & E. 548. 4 Car. & P. 518. 
 
 * 3 Nev. & M. 839. 4 id. 797. 6Car.& ' 39 Barb. 160. 
 
 P. 15. 5B.&Adol.789. 8 Ad. &E. 171. "7^^13.404. 
 
 ' 3 Stalls. 337. '» 31 Barb. 381. 
 
WOEK, LABOE XST) SEETIOES. 137 
 
 be made.^ If suit is brought for either of these causes of action, it 
 is a bar to all subsequent suits growing out of the transaction.* 
 
 § 275. Where the contract is not entire, as where one is employed 
 to do certain work, and to be paid from time to time as it progresses, 
 or to work for a year and to be paid monthly or quarter-yearly, and 
 in all cases where, by the terms of the agreement, payment is to be 
 made on partial performance, an action will lie for the money payable 
 as fast as it becomes due by the terms of the contract." In such cases, 
 however, the other party may show the damages which he has sus- 
 tained in consequence of the non-performance of the' residue of the 
 contract, in diminution or extinguishment of the claim established 
 against him. In technical language, he may recoups his damages ; 
 and in New York and elsewhere, where there are similar codes, the 
 defendant may have a judgment in his favor if his damages exceed 
 the plaintiff's claim.* 
 
 § 276. Where there is a special agreement for certain work, as to 
 build or repair a house or ship, and the price and time of payment 
 are fixed, if the parties by mutual consent change the plan, the terms 
 of the contract, as far as they will apply, will regulate the price and 
 time of payment of the new work.* Where, however, the change 
 is so great that the . terms of the contract do not apply to the new 
 work, the latter is considered as done under a new and distinct 
 agreement, both as to price and ,time of payment ; and as neither is 
 fixed by its terms, the price will be what the service is reasonably 
 worth, and the payment will be due as the service is performed.^ 
 Thus, where one agreed to repair a vessel according to an estimate, 
 to be paid £100 in two weeks, £100 in four weeks, £100 in six 
 weeks, and the balance by an approved bill at six months, and worked 
 upon the plan some time^ when the parties deviated from it and 
 completed it in a different manner, it was held that, as there was 
 nothing in the original agreement to govern the new work according 
 to the stipulation to pay each fortnight and the final sum by bill, he 
 might sue immediately on the completion of the work, although the 
 credit agreed on had not expired, "there being nothing in the 
 original agreement to govern the new work according to the stipula- 
 tions in that agreement, the time of payment could not be applica- 
 
 > 21 Wend. 457. 3Denio,609. lE.D. '"N. Y. Code, §§ 150, 274. 3E.D.Smit]i, 
 Smith, 70. 2Hatoti,59. 2 Ell. & Blackb. 317. 
 
 g^g *■ 30 Barb. 480. 23 Ind. 238. 
 
 » 31 Barb. 381. ° 39 N. Y. 375. 10 John. 36. 1 Stark. 
 
 220. S. C. 1 Holt, 236. 16 Wend. 586. 
 18 
 
I38v OF CONTEACTS. 
 
 Ble-."^' And where some adSitions are made to-a building, by the 
 employer's request or eoliseiit,. beyond tliflSe required by the original 
 contrae!; by which the workman contracts to finish it for' a certain 
 sum of money, the contact shall' exist: as far as it can be traced to 
 have been followed, and the excess only paid for according to the 
 usual rates of charging;' and if a man contract to work by a certain 
 plan, and that is so entirely abandoned that it is impossible to trace 
 the contract and say to what part of the work it shall be applied, the 
 workman is permitted to chal-ge for the whole work done by measure 
 and Talufe, as if no express contract had been made.' 
 
 § itl. The cases in the last section are where the deviation is with 
 the employer's consent, or he accepts- the work ; and in such cases 
 the same rules apply to other work as well as that done in altering 
 or repairing buildings.* And in all cases where delay is caused by 
 the willful acts or omissions of the party for whom the work is done, 
 with intent to embarrass the performance of the contract by the 
 other party, who, notwithstanding, proceeds and bestows his time 
 and labor in attempting to complete it, until in despair he finally 
 abandons the work, the rule that the special contract must control 
 the rate of compensation no longer prevails, and the party is entitled 
 to the actual value of his services;^ or in such a case the contractor 
 may bring his action for a breach of the agreement, and recover the 
 profits he WOuld have made ; if he sues for work and labor, he can- 
 not recover for profits, but for only what the work actually done is 
 worth.* Where there has been a deviation, and the work is accepted, 
 it is held that the recovery cannot exceed the contract price, nor can 
 the employee recover that if his work is worthless, or if, by paying 
 the contract price, the rest of the work will cost more than the 
 whole if completed according to contract. From the contract price, 
 in such casesj should be deducted the amount necessary to complete 
 the job.'' 
 
 § 2'78. If a buildter contract to build a house of specified dimensions 
 and with speciflfi materials, and deviate from the specification, he 
 cannot recover;^ but where one^ not a builder, finishes work other 
 than a building, differently from the specification, and the employer 
 
 • 1 Stark. 230. S. C. 1 Holt, 236. ' 31 N. T. 462. 4 Comstock, 338. 16 
 
 'Slnd. 59. 3 Iowa, 605. 32111.252. Wend. 586. 
 
 »Poali:e,103: 4 Wend. 289. 13 id. 276. ° 4 Comstock, 338. 
 
 3 Iowa, 90. ■> 3 Ind. 59. Id. 73. Id. 148. 5 Mich- 
 
 *16Wend.S8G. 28 itl. 66'1 4 Cowen, 449. 
 
 56'4. 3 Ind. 59. Id. 73. 11 id. 84. 5 » 5 Seld. 93. 11 Wis. 107. 
 Mich. 449. 
 
WOEK, LABOE AUD SEEVICES. 1139* 
 
 accepts it, he may recover tlie contract price, deducting snch a sum 
 as it would require to complete it according to the specification. 
 The reason of this distinction is, that in the latter case the work is 
 accepted hy the employer, while in the former it is not, althoiigli 
 from necessity' the house remains on his land, and he occupies it, and 
 so derives some benefit from it. But as he agreed for a particular 
 kind of building,, it would be manifestly wrong to compel him to 
 pay for a different one merely because it occupies his laiid. In the 
 case of an article other than a building, he need not accept it ; but 
 if he chooses to receive it, reason and justice Require that he should 
 pay for it. In the case of a building, he is compblled against his 
 will to take what he did not contract for and does not want, and it 
 is equally just that he should not be conapelied to pay for it. Accord- 
 ingly, the mere occupation of a building,, where there is a substantial 
 failure to erect it according to contract, is not a waiver of strict per- 
 formance (though it may be an evidence thereof); and the builder 
 cannot recover anything, though the owner doeB occupy and enjoy 
 the erection.* If occupancy and other evidence satisfy the jury that 
 the owner was willing to accept it at what it was worth, th^n that 
 amount, not exceeding the contract price, may be recovered by the 
 builder.^ If the variance is only in a delay in completing' the build- 
 ing, and it is accepted, the owner may recover any damages he has 
 sustained by the delay .^ 
 
 § 279. Where one has ordered a carriage or other chattel to be 
 made for him by a mechanic, and,it is m-ade pursntot to the order, 
 and on being tendered to him, he refuses to accept and pay for it, it 
 may be left in charge of a third person with notice to the customer, 
 and an action inaintained for the price ; or it naay be sold for the 
 best price it will bring, and an action be brought for the loss upon 
 the sale.* 
 
 § 280. "Where the owner' of a lot employed a mason to work for 
 him on a building at stipulated prices, and after a portion of the work 
 was done, upon the owner neglecting to furnish the necessary mate- 
 rials, the mason quit the job, it waS held that he could only recover 
 for the labor performed, at the contract price, in the absencfe' of 
 proof of circumstances to show greater damages ; but that if by the 
 neglect of the owner to furnish the materials, the contractor was 
 compelled to do his work at a- less- favorable season, or at an increased 
 
 ' 17 K. T. 173. 11 Wis. 107. * 15 Wend. 493. 1 E. D'. Smith, §90. 
 
 » 9 Ind. 497. 34 Barb. 301. 36 id. 354. 30 N. T. 549. 
 
 ' 40 Barb. 175. 
 
140 OF CONTKACTS. 
 
 expense, such additional expense ought to be taken into consideration 
 and added to the contract price.^ So, if a person employs different 
 parties by distinct contracts, to do the work, if either party delays 
 another in his work, the owner cannot claim there is a breach of the 
 contract, or refuse to pay for what has been done.^ Where a person, 
 by virtue of a power in the contract, stops Vork, this is an excuse 
 for the contractor, and allows him to recover for what he has done.^ 
 
 § 281. "Where one contracts to do certain work by a given time, 
 but not to do a portion of it until directed by his employer, the 
 employer cannot suspend the work so long as to prevent its comple- 
 tion within the time agreed upon. If he does, and then directs the 
 work to be performed, the contractor is not limited by the contract 
 price, but can recover upon the implied agreement to pay what the 
 work so performed is worth.* So, if there be a special agreement^ 
 whether sealed, in writing, or oral, to do a piece of work, and it be 
 done with the assent of -the employer, although not pursuant to it, 
 either in point of time or in other respects, the contractor can recover 
 what the work was reasonably worth.' The employer, by permitting 
 the contractor- to proceed and finish it after the time limited has 
 expired, waives all right to object on that ground, and the law implies 
 a promise on his part to pay for it.° And if an employer accepts 
 work partly done, he can thereafter claim a deduction only for the 
 part not done.'' 
 
 § 282. "Where labor is performed under a special agreement, or a 
 law which remains in force, the action must be brought upon that, 
 and the recovery will be had pursuant to its provisions.' And in 
 cases of contract it must be produced or accounted for.' But if, 
 while the contractor is performing his special contract, the employer 
 gives a separate order to do more or different work upon it, the value 
 of that is not to be measured by the special contract, but there is an 
 implied promise to pay what it is reasonably worth.*" If a person 
 engages to work, by a void contract, and still performs the work, the 
 contract itself may be referred to as showing the understanding of 
 the parties as to the rate of compensation, which compensation is to 
 be as upon a quomtwm meruit.^ 
 
 •7 Wend. 121. 43 Barb. 33. See 36 N. ' 25 Wend. 665. 
 
 Y. 388. • 12 Jolin. 274. 13 id. 94. 24 Wend. 62, 63. 
 
 ' 9 BoBw. 261. ■ 30 Barb. 430. 19 N. Y. 326. 28 111. 378. 
 
 ' 44 Barb. 81. » 34 Wend. 60. 1 Sand. 206. 30 Barb. 
 
 * 4 Wend. 285. 430. 
 
 ' Supra, § 277. » 1 Mood. & Malk. 413. 
 
 '10 John. 86. 13 id. 94, 97. " 1 E. D. Smith, 618. 4 Id. 432. 
 
"WORK, LABOR AND SEEVICES. 141 
 
 § 283. "Where a contractor puts into an article better materials 
 tlian lie h required to by bis contract, be cannot, on tbat account, 
 recover more than tbe stipulated price ; nor after delivery of tbe 
 article, require it to be returned because tbe buyer will not pay an 
 increased price for it.'' So, where worl is undertaken at a given 
 price", the employer is not liable to pay a greater sum by consenting 
 to alterations from the original plan, unless he is either expressly 
 informed or must necessarily, from the nature of the work, be aware 
 that the alteration will increase the expense.' 
 
 § 284. Where A repaired premises held by B under a lease con- 
 taining a covenant to repair, on a parol promise by B to assign 
 the lease to A, upon his refusing to assign to A, an implied promise 
 to pay A- for the repairs was held.^ So, where A, by a fraudulent 
 representation of being the owner of land, induces B to bestow labor 
 upom it in the expectation of enjoying the property as joint owner, 
 B may, upon discovering the fraud, abandon the contract upon which 
 his labor was performed, and recover for its value on an implied 
 promise to pay for it. And in such a case it is no objection that the 
 contract was for an interest in lands, and void by the statute of frauds 
 for not being in writing.* 
 
 § 286. But where I contract with you to sell me land, and I enter 
 upon it and improve it, and you refuse to convey, whereby the con- 
 tract is rescinded, I cannot recover for my labor expended upon the" 
 land." 'Not can I, if I enter upon another's land without his consent, 
 or color of right, and clear and improve it. Here, as there is neither 
 a legal or moral obligation to pay me for my labor, a promise subse- 
 quently made to pay me for it would be without consideration and 
 void.® 
 
 § 286. An action may be maintained for professional services per- 
 formed at the defendant's request, by an attorney or counselor at 
 law,'' a clergyman,^ or a physician or surgeon, whether he be licensed or 
 not.^ Formerly the fees of attorneys were regulated by statute, but 
 the measure of their compensation is now left to an agreement, 
 express or implied, between them and their clients.^" It was also, 
 prior to 1844, provided that none but a licensed physician could col- 
 
 » 3 Car. & Payne, 453. 33 lU. 353. ' 36 Wend. 451. 
 
 ' 1 Mood. & Rob. 60. 33 111. 353. ' 10 John. 344. 
 
 » Ky. & Mood. 430. ° Laws 1844, ch. 375. 3 E. S. (Banks' 
 
 < 16 Weiid. 35. 5tli ed.) p. 66, §§ 38, etc. 1 Eedfleld, 334. 
 
 6 5 John. 85. "Code, §303. 34How.Pr. R. 531. 35 
 
 • 5 John. 373. id. 300. 
 
143 OF CONTEACTS. 
 
 ;leet payment for Jiis services ;^ but even then licensed .pliysimna 
 coiild -recover ifor -the services of ;their students in attendance upon 
 their patients.' jif one requests a physician to attend a- third person, 
 promising rto .pay him for it, he is liable even though the request or 
 promise is not in-WMtiiig;; but if he ..gives notice to the physician to 
 discontinue his visits, he will not be liable for .subsequent charges.^ 
 ■If a clergyman receives a technical "call," those who sign it are not 
 personally liable to him; it is the act. of the corporation, which only 
 is liable.* 
 
 § 387. ;A parent or master is not liable for services performed for 
 his child or indented apprentice without his knowledge, unless in a 
 case requiring immediate assistance ; as where the child or apprentice 
 was suddenly taken sick.* .A master is not, however, liable for 
 •necessaries, or services performed for his hired servant during his 
 sickness, unless at his special request-* 
 
 §288. An aetionimay be maintained against overseers of the poor 
 for medieftl attendance upon -a pauper for whom they are bound to 
 provide, or for Ms rbpardlif furnished ftt their request; or, when nat 
 furnished with -their knowledge, if thiey afterward expressly promise 
 to pay for it ; but not otherwise.' So, if a pauper, in a county poor 
 house, works ;for -the jkeeper for his benefit, and in the poor house, 
 on his promise -t-o pay.^ It is held in Indiana, that if a prisoner in 
 their state prison, who jis -committed on a process void on its face, 
 work in the, prison, the lessee of the prison is liable therefor, even 
 without a promise to. pay.' But, this is an exceptional case, and can- 
 not be sustained under the decisions in the previous note. 
 
 § 389. It has been remarked that.where there is an express contract 
 to perform a particular piece of work, or to labor for a certain price, 
 80 long as it remains unchanged the contractor can only recover upon 
 a perfoKmance of its terms." In actions upon such contracts, and 
 also in all.^etions:for;services, whether common, mechanical, or pro- 
 fessional, and whether to be performed at a fixed price or not, the 
 defendi^nt may, |b,y way of recoupment, mitigate the damages or 
 defeat the iactign; altogether,, according to the justice of the case, by 
 Showing .that they were done ,tinsikillfjilly,, or were worthless than 
 
 1 1 K. S. (1st ed.) 455, § 33. ' 10 John. 249. 13 id. 353. 13 id. 380. 
 
 ■■' 4 "Wend. 300. 15 id. 381. 1 Barn. <& Aid. 104. 3 East 
 
 • 1 Bosw. 441. 505. 
 
 •6 Hill, 530. '81N. Y. 319. 
 
 • 10 J©hn.f349. 3 Eeat,- 365, note b. 4 • 13 Ind. 341. 
 E. D. Smith, 331. » Ante, § 371. 
 
 '3Esp. R. 789. 3 Kent, 365, note b. 
 
WORK, tABOE AND SEEVICE8. 143 
 
 the plaintiif's,plaim, or worth nothing.^ Thus, if a surveyor makes 
 an estimate which turns out to he incorrect, tp a considerahle amount, 
 through.his neglect to examine the;ground for the foundation of the 
 ,work, he is not, entitled to recover anything for hiSiplaixs, specifica- 
 tions, and estimates, made;for it.' So, an auctioneer guilty, of negli- 
 gence, whereby, his sale is void, cannot .recover , for his, services.' ,If 
 one party hiuders the other from completing;the contract within the 
 specified time, this is a legal excuse for a non-performance within 
 such period.* So, if the plaintiff agreed to do certain work on the 
 defendant's house, which burns, up before the same is completed, .he 
 may recover for what he has done, on the principle .that the defendant 
 is in default, legally, by not.havingthehousein readiness ior.the labor 
 to be performed.' 
 
 § 290. A professional person, as an architect, dentist, surgeon, 
 coachman, physician, apothecary, farrier, attorney, or enga.ged in any 
 other profession, .impliedly undertakes, as a general rule, that he h,aa 
 ordinary skill and that he will execute the. business intrusted to him 
 with ordinary care and skill. If he fails in this duty he is guilty of 
 default in his undertaking, and cannot collect pay for his services, 
 but is liable in damages to the persons who employed him.^ ,]?or 
 these reasons, an attorney cannot recover against his client fqr his 
 services in an action, where the judgment obtained by him is set 
 aside for irregularity, norrfor opposing a successful motion to set aside 
 his proceedings, mor for money paidrto satisfy the costs of a judg- 
 ment of discontinuance obtained against his client.in consequence of 
 his negligence or ignorance.' But .proof that a judgment as in case 
 of nonsuit, was obtained against the chent, is. not, of itself, evidence 
 of negligence.' The negligence must be gross. .Jf he acts in good 
 , faith and tothe^best of his.sljill, and ,with a. moderate degree of 
 attention, he;is not answerable.' !N"Dr is he aps'Virerable.for an error 
 or mistake on a point, of law in, regard to which, a reasonable doubt 
 mayfbe entertained, or on. a nice.point.qf practice." If, however, he 
 
 "7 East. 479. 3 Com. on Qon. 363. 3 29 id. 435. .23 lU. 385. 33 id. 252. 81 
 
 Stark. 6. 3 ,Wila. 359. 14 John..; 377. 9 tMis. 375. Also, cases in last section. 8 
 
 Coweii,57. 1 Gamp. 38. Ajitli..N.P.168, .Car. & P. 479. ,7,id.84. Id.389. 40,ni. 
 
 noteb. 3 "Wis. 323. 209. See 3 Kansas, 389. ^7 Ohio, 253. 
 
 ' 1 Car. & Payne, 853. 28 Texas,'435. 
 
 ' 3 Camp. 451. ' 13 Wend. 517. See 15 Mass. 316. 
 
 *36N. T..388. '9Cowen,,57. .Also, 15J!|Iicli..-244. 
 
 ' 1 Keyes, 476. " 4 Burr. 2060. 9 Cowen,lf7. ^ Cajnp, 17. 
 
 •31 Barb. 534. 8 East. 848. . 2 .Wils. » 4 Burr., 2060. 1 Nev.,& ]>f.,363. 3 
 
 325. Id. 359. 2 Bosw. 234 39 Maine, Bam. & Cress. 738. ,:S..C,5,Pq^,&]J. 635. 
 155. 39Vt.l98. 14Ind.595. 17 id. 115. 
 
144: OF CONTEACTS. 
 
 has specific lawful instructions from his client, he is answerable foi 
 all damage occasioned by disobeying them. He should advise the 
 client to the best of his judgment, and if the client will not follow 
 the advice, it is safer for the attorney to follow the client's instructions 
 so far- as the rules of law will permit.^ Where he is sued for negli- 
 gence in suflfering a judgment by default, and the negligence is 
 proved, it is for the attorney to defend himself by showing affirma- 
 tively that the client had no defense in the action.^ An attorney 
 does not impliedly undertake that the client will gain his cause, nor 
 the physician that he will cure ; they only promise to exercise a fair, 
 reasonable, and proper degree of skill.' If the employer selects a 
 quack, or an incompetent practitioner or counsel, he can only ask 
 for corresponding skill to be exercised. 
 
 § 291. A recovery may be had in some cases where the work is 
 defectively performed, if it is in the main substantially according to 
 the contract. As where a party contracted to supply and erect a 
 warming apparatus, the jury were directed, if they thought it sub- 
 stantial in the main, although not quite so complete as it should have 
 been, and capable of being made good at a reasonable outlay, they 
 mi'ght find a verdict for the contractor, deducting such sum as would 
 enable the employer to render it complete.* But where one con- 
 tracted, for a fixed price, to erect a bridge in a particular manner, 
 and he built it so unfaithfully that although it served for a time, yet, 
 from the defective manner of building, it afterward gave way, it was 
 held that the contractor' could recover nothing for it.° 
 
 § 292. Instead of setting up the defense of unfaithful or defective 
 performance of the service by \h.e contractor, the employer may pay 
 for the service and then bring an action against the contractor for 
 the damage he has sustained.^. But if an action is brought against 
 him for the service, he should either pay for the work before judg- 
 ment obtained against him, or interpose his defense. For if he suffer 
 the contractor to obtain a judgment against him for the service, it 
 wiU entirely cut off his remedy for his damages.' 
 
 § 293. In an action brought by an attorney for his services, it is 
 necessary to show his retaine!r, either by proving the original employ- 
 ment, and the performance of services, or some recognition of him 
 
 » 8 Mass. 57. 13 Ind. 818. ^ • 3 Com. on Con. 368. 3 Wils. 835, 359. 
 
 ' 7 Bing. 413. ' Chit, on Con. 166. 
 
 ' 8 Car. & P. 479. 7 id. 84. Id. 389. ' Infra;, § 1089. 1 John. Cas. 493. 8 
 
 * 5 Car. & Payne, 337. John. 453. 8 Wend. 109. 
 
 '14 Mass. 383. 
 
145 
 
 by the client during the progress of the Buit ; for the fact that he 
 acted as attorney, or was recognized as such by the opposite party, 
 is not enough.^ And it is a good defense to the action to show that 
 the attorney agreed to conduct the cause gratis, or (under the Code 
 of New York), that the attorney shall receive the taxable costs and 
 a percentage on the amount recorered, for a portion of his compen- 
 sation.^ 
 
 § 294. The action for labor and services may be maintained by 
 any public officer against the party who employs him ; as a commis- 
 sioner or referee to examine witnesses, a sheriff, justice, constable, 
 etc.^ In the case of a sheriff, coroner, or constable, the rule is that 
 in all cases where process is given them to serve, which ,is valid upon 
 its face, they may recover their fees for its service against the person 
 issuing it.* But if they arrest one known to be by law privileged 
 from arrest, they are not entitled to fees, as the arrest is void.' "Where 
 the process is issued by an attorney, the sheriff may collect his. fees 
 of him, as where he summons a jury for a circuitj notwithstanding 
 he goes out of office before the circuit occurs.'^ It may be main- 
 tained by witnesses for the fees allowed them by the statute, if they 
 attend court either at the request of a party or upon a subpoena, and 
 whether examined or not.' But as the law allows no compensation 
 to witnesses, not experts, for loss of time beyond their statutory fees, 
 a promise to pay for it is not binding.^ An agreement by which a 
 person is to be paid a stipulated sum for giving testimony, in addition 
 to his ^ traveling expenses and pay as an expert, is void as against 
 public policy, and the witness in such a case cannot even recover his 
 traveling expenses, nor his usual per diem or pay as an expert.' 
 
 § 295. Although it has been questioned, in England, whether an 
 arbitrator could recover for his services, unless upon an express 
 promise made either before or after they were performed, to pay for 
 them, it is well settled in this country that he can, and that where 
 the submission is to several, each must bring a separate action for his 
 compensation.^" 
 
 '9Jolm. 142. 3 Barb. 64. llHow.Pr. '14 John. 357. 15 id. S60. 1 Binney, 
 
 E.453. 1 E. D. Smith, 318. 36 Dl. 318. 46. 18 How. Pr. E. 168. 5 John. 351. 1 
 
 " 3 Stark. 185. 23 Bark 420. HUl, 76. 
 
 ' 5 John. 352. 9 id. 338. 4 Mass. 411. " 5 Maule & Sel. 156. 4 Moore, 300. 
 
 Carthew, 308. 1 Kern. 408. 17 How. Pr. See aliter as to experts or professional 
 
 E. 389. men. 7 J. Scott, N. S. 638. 3 Car. & Kir. 33. 
 
 • 13 John. 378. * 9 Bosw. 116. 7 Bing. 369. 
 
 • 10 John. 93. '° 1 Denio, 188. 1 Pars, on Con. 538, 
 
 • 5 John. 353. 9 id. 114. 6 id. 135. note x. 
 
 19 
 
146 OF COHTEAOTS. 
 
 [§295<».] Teachers of select or private scTiools may recover pay 
 for the tuition bills of those who have employed' them. And so 
 those of public schools, if they bring themselves within local laws, 
 and are entitled by those laws to recover ; in which case their suit 
 must be against such parties as the law makes the proper ones.^ If 
 the teacher of a private school undertakes to furnish board, with 
 suitable instruction, it is a good defense to show that he failed in 
 either respect.^ And the teacher cannot, in such a case, for any 
 transgression of- the pupil, turn him into the streets, without for- 
 feiting his compensation.' 
 
 § 296. An action for labor and services can be maintained by a 
 broker employed to complete a purchase or sale, when he has 
 completed the same, or made such a contract as his employment 
 authorizes him to negotiate, but which his employer capriciously or 
 causelessly refuses to perform, or puts it out of his power to per- 
 form;* if without the broker's fault, and when he has acted in the 
 customary course of business, his principal is damaged, the broker is 
 not liable therefor.' An action also may be brought by one employed 
 to procure a pardon;^ against a committee appointed at a public 
 meeting to carry into effect its objects, for services performed at their 
 direction;' against an employer who hired a clerk at £200 per year, 
 payable quarterly, and dismissed him, paying him only to the time 
 of dismissal, for the salary to the end of the quarter;® and generally 
 for services performed under any contract not under seal, which has 
 been fulfilled or rescinded," or for work done upon any contract, 
 whether under seal or not, not pursuant to it, but upon some new 
 arrangement or agreement of the parties.*" 
 
 I § 297. The law compels no one to pay for services voluntarily 
 performed for hinj, however beneficial to him, unless upon his express 
 or implied request." This inile has been held in the following cases : 
 J. owned a stubble field in which B. had a stack of wheat which he 
 had promised to remove in season for preparing the field for a fall 
 crop. The time to remove it having arrived, J. sent a request to.B., 
 which, in his absence, was delivered to his family, that the stack 
 
 ' See 7 Wend. 181. 10 Barb. 290. « 1 Stark. 157. 
 
 » 7 Car. & P. 768. " Fitzg. 30^. 12 East. 1. 10 Mass. 287. 
 
 = 40 Barb. 541. 4 Cowen, 564.^ 7 Crancli, 299. 4 Wend. 
 
 ' Fitzg. 302. 31 K Y. 482 and refs, 5 285. 11 id. 478. 
 
 Bosw. 73, 37 Eng. Law and E. 438. '° 14 John. 330. 
 
 » ?; 
 
 5B0SW. 506. "21111.76. 3 Beasley, 346. Infra |! 
 
 ' Hob. 105, (3 Esp. 253, contra.) 32 lU. 206. 
 
 ' 6 Wend. 649. 
 
WOEK, LABOE AND SERVICES. 147 
 
 slioiild be removed, as he wished the .next day to burn the stubble. 
 The sons of B. answered that they would remove it by 10 o'clock 
 the next morning. After waiting until that hour, J. set fire to the 
 stubble in a remote part of the field, and finding the fire spreading 
 rapidly, and threatening to burn the stack, J. set to work and 
 removed it to a place of safety. The court held that no action 
 would lie for the service.' Where labor is performed by one 
 for another, the law presumes a request and promise to pay, unless 
 it is understood that it is to be performed gratuitously, or it is per- 
 formed under such circumstances as repel the presumption of a 
 promise.' A woman who has lived with a man as his wife, supposing 
 herself to be such, cannot, on, discovering that their marriage was 
 void, recover for her services, on an implied promise to pay for them.^ 
 Where a minor was indentured as an apprentice by void indentures, 
 01* one supposed to be a slave, but free in reality, worked for another, 
 it was held neither could recover for his services.* A partner cannot 
 recover for his services in settling the afi^airs of the firm, unless an 
 agreement is made therefor, and this even where he is a surviving 
 partner ; but if, after the death of one partner, the survivor carries 
 on the business profitably, he is entitled to a compensation, to be 
 deducted from the profits.^ A workman cannot recover for time 
 spent in examining plans and specifications, if his offer to perform 
 the work is rejected.® The law does not imply a promise to pay for 
 board or services rendered by members of the family to each other ; ' 
 therefore, where children, before or after their minority, or step- 
 children, grandchildren, mother-in-law, or a brother or other person, 
 even when not a relative, living in and being a part of the family, 
 render services in 'the ordinary duties of the household, and as 
 members of the family, and are provided for and supported as such, 
 without any contract or understanding that they shall receive pay 
 for their services, or pay for their board, the law will not imply any, 
 nor allow a recovery therefor.' But slight circumstances will be 
 sufficient to raise the implication, and authorize a recovery. Thus, 
 
 ■ 20 John. 98. ' 3 Beasley, 151. 6 Ind. 60. 21 id. 309. 
 
 ' 20 Barb. 387. 21 How. Pr. B. 211. 1 48 Barb. 327. 
 
 Redfield 234. 31 Mis. 255. ' 3 Gomstock, 312. 15 Barb. 444. 11 id. 
 
 ' 27 Barb. 310. 224. 43 id. 603. 48 id. 327. 2 Bradford, 
 
 n2 Barb. 473. 5Cowen,531. 14Wend. 336. 3 Ind. 156. 6 id. 60. 18111.46. 36 
 
 209. id. 81. 5 Wis. 472. 21 How. Pr. R. 211. 
 
 ' 2 Duer, 513. S3 Cal. ^7. 23 Wis. 651. 23 Ind. 60. 34 id. 352. 25 id. 174. 26 
 
 « 1 E. D. Smith, 609. id. 207. 27 id.' 323. 28 id. 89. 29 id. 618. 
 
 41 Mo. 441. 32 Wis. 93. 
 
148 OF CONTEACTS. 
 
 that a step-son was sent for to enter into the employment, and that a 
 set-off was filed, including charges for board, clothing, education, 
 money advanced, &c., or other circumstances less than an. express 
 agreement will he sufficient.^ It is said in Indiana that the above 
 general rule does not apply to infants.'' In other cases the distinction 
 does not seem to have been made, and in many of them the rule was 
 applied to them. 
 
 ' § 298. An exception to this rule is made in the case of goods and 
 vessels lost or abandoned in distress at sea, which are saved by other 
 persons. Here the person, who by his labor saves them, may claim a 
 reasonable compensation for his services, and may also retain the pos- 
 session of them until paid.* But one who saves property from fire, or 
 from water, or who secures boats astray, or solicits supplies of food, 
 or performs other unsolicited service, cannot recover.* If, however, 
 he has incurred necessary expense, or suffered damage in securing or 
 caring for, or storing the property of another which is lost, afloat or 
 astray, and it is afterward reclaimed, the owner should repay such 
 expense, or pay such damage ; and if he refuses, an action will be 
 allowed to recover therefor.' 
 
 § 299. "Where the services are performed upon an express agree- 
 ment that the remuneration shall be such as a third party shall think 
 reasojiable, no recovery can be had for them if it be shown that no 
 application has been made to the third person to fix the amount.' 
 So when a contract requires that a certificate of performance be 
 given "by some officer or person, as an architect, to entitle the con- 
 tractor to payment, the procurement of that certificate is a condition 
 precedent to his right to claim the money, and, in the absence of 
 fraud or palpable mistake, that certificate is conclusive between the 
 parties.' But if an architect unreasonably and in bad faith refuses 
 the certificate, or the employer, by stopping the work, or otherwise, 
 prevents t^ie giving of the certificate, or fraudulently procures the 
 certifying party to withhold it, then its procurement is Excused, and 
 the .contractor may recover if he has, in fact, completed his contract.' 
 If the agreement is that the remuneration for the services shall be 
 entirely at the discretion of the employer, no action lies for them.' 
 
 " 26 111., 81. 5 Wis. 472. 43 Barb. 603. ° 42 Barb. 373. 
 
 See also 6 Ind. 60. 38 id, 60. 28 id. 89. ° 4 Car. and Payne, 93. 
 
 41 Mo. 441. '4 Duer, 395. See 9 Bosw. 361. 7 
 
 = 37 Ind. 323. Wis. 516. 
 
 = 1 Ld. Bay. 393. Abbot on Ship. 856. » 26 N. Y. 26. 17 id. 176. 9 Peters, 
 
 « 43 Barb. 372. 2 "W. Black. 1117. 1 319. 44 Barb. 81. 2 Hurlst. & Colt, 43! 
 
 Esp. 86. '4 Dal. 111. 1 Maule & Selw. 290. 
 
WOEK, LABOR AND SEEVICES. 149 
 
 But if performed at the request of the party, nothing having been said 
 relative to payment, a promise to pay for them is implied.^ Thus, 
 where one, without any contract, express or implied, but in expectation 
 of a legacy, labors for another, no action lies for the services.^ But if 
 the services are rendered at the' request of a testator, under the expec- 
 tation and mutual understanding that compensation will be made by a 
 legacy, or if either before or after they are performed, he promises to 
 pay for them, or if he promises to do with the person rendering them 
 as his own child or to make him his heir, or purchase a farm for him, 
 and dies making no such provision for him, an action can be main- 
 tained for the services.' In such cases the recovery is only for the 
 intrinsic value of the services performed.* 
 
 § 300. A request to one to perform a certain service with a promise 
 to make him a present, is evidence of an implied contract to pay a 
 reasonable compensation for it.^ 
 
 § 301. If A employ B to do certain work, and without the privity 
 of A, B employs C to perform it, there is no implied promise on the 
 part of A to pay for it.* But if A employs B, and agrees to pay 
 him, it is no defense to an action for compensation that A agreed to 
 pay some third person who has no right to it.' 
 
 § 302. Where one illegally avails himself of the labor of another 
 servant, as where he harbors and employs another person's minor 
 child, apprentice or servant, the master may waive the tort and 
 recover the reasonable worth of the services upon an implied promise 
 to pay for them.* The rule extends to the unauthorized detention of 
 a person of full age who is hired by another for wages.* The 
 employer of a servant already hired to another must, however, have 
 notice of the fact to make him answerable." It is provided, in New 
 York by special statute, that in the case of services performed by 
 minor children, it shall be necessary for their parents or guardians to 
 notify the party employing them within thirty days after the com- 
 mencement- of their service, that they claim the wages of the minor, 
 and in default of such notice, payment to such minor shall be valid." 
 
 ' 1 Teates, 309. 4 id. 353. ' 20 Barb. 387. 
 
 ' 2 Str. 728. 1 Esp. 187. 13 Wend. 460. » 3 Maule & Selw. 191. 3 Yeates, 250- 
 
 2 Beasley, 246. 13 John. 322. 
 
 ' 3 John. 199. 13 id. 379. 5 Barb. 469. ° 3 Denio, 369. 15 Barb. 499. 
 
 36 id. 138. 3 Brad. 199. 24Ind. 280. "6 John. 374. 
 
 ' 25 Bai-b. 433. " Laws of 1850, ch. 266. 3 E. S. (Banks' 
 
 ' 5 Taunt. 302. 5th ed.) 243, § 8. The law in Iowa is simi- 
 
 " 6 Taunt. 147. 1 Marsh. 500. 2 Yeates, lar ; see 16 Iowa, 314. 22 id. 306. 
 
 23. 
 
ISO or CONTEAOTS. 
 
 The language of the statute is very general, but it is believed that 
 it was not intended to extend to the wages of minors harbored and 
 employed against the will of tibe parent or guaxdian. 
 
 § 303. Th« reputed father and mother of a ba;stard are by statute 
 made liable for its support ; and in case of their default or inability, 
 it is supported as a pauper,^ and there are. various provisions for 
 ascertaining the father and compelling him to furnish means for its 
 support. It is customary, when the means are provided, for super- 
 intendents or overseers ©f the poor to employ its mother to nurse 
 and take caa-e of it> But no action lies by her against them for its 
 maintenance without showing an express promise to pay, or circum^ 
 stances from which one may be implied, as by placing the child witli 
 her, or a request to maintain it, or that they had received moneys for 
 its maintenance under an order of filiation,^ If or will an action for 
 the support of a bastard lie against his father, except upon his express 
 promise, unless he adopt it, in which ease, while the adoption continT 
 ues, a promise may be implied in favor of th« person providing 
 for it.* 
 
 § 304. It is also provided by statute that the father, mother and 
 children who are of sufficient ability, of any poor person who is 
 blind, old, lame, impotent or decrepit, so as to be unable by work to 
 maintain himself, shall at their own charge relieve and maintain him 
 in such manner as shall be approved by the overseers of the poor 
 of the town where he may be,* and there are provisions to compel 
 the performance of the duty. But an action for services done or 
 necessaries supplied toward the maintenance of an aged parent will 
 not lie against his chUd, unless rendered or furnished at the child's 
 previous request or promise to pay, or under such circumstances that 
 one may be implied. If there is neither, the only remedy against 
 the child is given by the statute. By its means he may be compelled 
 to furnish his parent a support, but an implied promise to pay for the 
 services or provisions cannot be founded upon the parent's necessities.^ 
 The provisions of the statute extend only to natural relations.* A 
 husband therefore is not bound to maintain his wife's bastard chil- 
 dren born before his marriage. Neither is a father bound to sup- 
 port the bastard child of his daughter, 'nor a son-in-law his wife's, 
 mother.' 
 
 ' 3 R. S. (Banis' 5th ed.) 906, § 31 « 16 John. 381. 
 
 " 13 John. 195. 8 Cowen, 651. "4 "Wend. 403. 4 East, 76. 4 Term K. 
 
 = 19 Wend. 403. 35 id. 619'. 3 Kent, 315. 118. 
 
 SOInd. 340. '7 Cowen, 385. 6 id. 106, 121. 3N.Y. 
 
 ' 3 R. S. (Banks' 5th ed.) 836, § 1. Leg. Ob. 864. 
 
MONET HAD AUD BECEIVED. 151 
 
 If, after the support has been fnrnished, the child promises to pay 
 for the same, it is void as without suflScient consideration.'' 
 
 § 305. lY. Foe monet had aitd. eeoeivbd bt the peeehdant to 
 -THE plaintiff's USE. An action may be ■ maintained in all cases 
 where one has received money belonging to another, which in equity 
 and upon principles of natural justice, he should pay ovet to him.' 
 To support it, it is, as a general rule, necessary to prove tliat the 
 defendant or his agent actually received money or its equivalent, as 
 bank notes eirculating as cash, for the use of the plaintiff ; ' mere 
 money's worth is not sufficient.* Where, however, the property is 
 saleable, the receipt of money may be presumed, particularly after 
 the lapse of a reasonable time, until the contrary be proved.* And 
 property received as Ttumey will support the action.' The entry of 
 a check as cash, made by an officer of a bank in the private bank 
 book of the holder, is an equivalent, to a payment of cash, and the 
 bank is bound thereby even if the check turns out to be forged, the 
 forgery being unknown to the holder.'' 
 
 § 306. Where property has been wrongfiiUy taken from the owner 
 and sold by the wrongdoer, the owner may waive the tort and affirm 
 the sale, and maintain an action against the wrongdoer for the price 
 of it, as money recived by him to the owner's use. But if the use 
 to which the property be put is prohibited by law, he cannot recover 
 the money rebeived for it.' 
 
 In New York and some other states, the rule is as stated above ; 
 in some of the states, however, as in Illinoi& and ISTevada, the tort 
 cannot be waived except in cases where the goods have been wrong- 
 fully sold by the defendant, and then the plaintiff recovers only the 
 amount received on the sale.' 
 
 § 307. Money is received under an implied promise to pay it to the 
 proper owner : 
 
 1. "When received by an agent for hie principal, an attorney for his 
 client, a sheriff or constable on an execution, or a justice in tlie 
 
 ■3 Pick. 307. 13 Barb. 503. 7 Conn. «7Cowen,668, 
 gij, ' 4 DaU. 334. 10 Wheat. 333. 1 Bin. 
 
 ^3Denio, 91. 11 Iowa, 506. 8 Mich. 37. 
 
 483. 18 id- 9. 45 m, 138. 30 id. 650. '1N.H.151. 1 Hill, 340. 3 Greene, 
 
 =■13 Bast, 30. 3 Bibb, 378. 6 Conn. 95. Iowa, 599. Infra, §777. 
 
 g Barb 319 '3 Scam. 317. 4 Gilm. 406. 35 111. 
 
 ^S Burr. '2589. See 3 Bibb, 378. 11 455. 45 id. 138. 46 id. 113. Id. 145. 3 
 
 Mass. 494. 4 Pick. 60. UJoha. 464 4 Nevada, 349. 1 HiU, 340, note. See 3 
 
 Serg. <S Rawle, 179. Greene, Iowa, 599. 
 
 '1 Doug. 138. 4Term,R. 687. 3 Bos. 
 & Pull. 559. 4 Bing. 178. 3 Barb. 19. 
 
152 OF COjSTEACTS. 
 
 course of his busmess, all of whom in some degree are agents of the 
 party for whom they receive it ; * and the action will lie even if th6 
 money was paid in satisfaction of an illegal contract, if the agent had 
 nothing to do with the contract.* 
 
 2. When paid under mistake or through the deceit of the other 
 party. As when two men are reckoning, if one through mistake 
 6verpays the other, the latter receives it to the use of him paying it ; 
 and if one falsely tell me he has paid certain money or performed 
 certain work for me, and I pay him for it, the money so ohtained from 
 me by the deceit, is received( by him to my use. In case of a mis- 
 take, it must be a mistake of fact. That is, there must some fact 
 exist which is unknown to the parties, with a knowledge of which 
 the payment would not have been made, or some fact be supposed to 
 exist which induces the payment, which really does not exist. The 
 principle upon which the rule is founded is, that if the parties believ- 
 ing that a certain state of facts exists, come to an agreement with 
 such belief for its basis, on discovering their mutual error they are 
 remitted to their original rights.^ But a onistake of law will not 
 avoid the transaction, nor fender the money in the hands of him who 
 receives it the money of him who paid it. As where one is truly 
 acquainted with the facts, but is ignorant of or misconceives their 
 legal consequences. Plere his mistake is one of law, and the party 
 receiving the money takes it to his own use.* Ignorance of the law 
 of a foreign government is ignorance of fact.' 
 
 3. "When paid upon a consideration which happens to fail ; ® as if I 
 advance money to a man for carrying my goods, and without my fault 
 he fails to carry them ; or to one upon his promise to sell and deliver 
 me certain goods, and he fails to do so. See 39 III. 164. 
 
 4. When paid as a consideration for an agreement which is after- 
 ward rescinded. As where A and B make a contract for the sale 
 and purchase of a quantity of timber to be delivered at a future day, 
 and fifty dollars upon account of it is paid by B at the time of 
 making the' contract ; on the recission of the contract A is held to 
 have received the money to the use of B. In such a case, however 
 when a purchaser would rescind a contract and entitle himself to the 
 
 '39 Barb. 59. 30 id. 238. 1 Daly, 54 *1 Wend. 355. 20 id. 174. 1 Hill, 287. 
 25 111. 226. 16 Ind. 320. 9 Pick. 112. 2 Hall, 252. 16 Ind. 29. ' 
 
 '5Bosw. 645. 10 id. 309. '8 Barb. 233. 
 
 » 4 Ind. 43. 40N.Y. 391. 4Bosw. 337. "13 Minn. 326. 25 111. 4U. 
 7 Mich. 325. 
 
MOXEY aXD AUD BECEIVED. 153 
 
 money paid upon it, he must place the vendor in the same situation 
 that he was before the sale.^ 
 
 6. When paid to one acting under or in pursuance of a void 
 authority. As if one come to me, in behalf of my creditor, with a 
 forged order or power of attorney to receive the debt, and I pay him 
 the money. Here, although both of us may have supposed the order 
 or power of attorney to be good, yet the authority being in fact 
 forged and void, the money was received to my use. 
 
 6. When obtained by corrvpulsion, extortion, invposiiion, or talcing 
 an widue advantage of tlie jparty^s situation? As where I pledge 
 vcfy horse for a debt of one hundred dollars, and the bailee upon my 
 tender of the sum owing, refuses to re-deliver him unless I pay an addi- 
 tional sum, which in order to obtain him, I pay ; where one sells me 
 lands which have no existence, and receives of me the money for the 
 price ; where my friend is insolvent, and I give one of his creditors 
 a sum of money to induce him to become a petitioning Creditor, or to 
 grant him a letter of license ; or where a sheriff or constable or 
 other officer extorts money, or receives exorbitant fees. But money 
 paid under an order, decree or judgment of a court, although the judg- 
 ment is fraudulent, is not received to the use of the party paying it. 
 
 7. When embezzled, or moneys of which one has been defrauded 
 by cheating or otherwise. As where money is embezzled, or stolen 
 by one's clerk, servant or other person, or obtained from him by any 
 cheating at play by false cards or dice. 
 
 8. When paid imder a judgment or adjudication of any court 
 which is afterward reversed for error. By the New York Code 
 (§§ 330, 369), on such reversal, the court orders restitution of the 
 amount paid and interest. 
 
 9.\ Wlien paid upon any contract declared void, either by common 
 la.w or statute, except in cases where the party himself is a party to 
 the criminality, as in case of an usurious contract. And where a 
 contract is entered into, the object of which is to violate the provi- 
 sions or the spirit and policy of a public statute, and one pays money 
 in furtherance of it, and it is in part executed by a partial accom- 
 plishment of the original design, leaving a portion of the money 
 advanced unexpended, an action will not lie to recover it back. In 
 some cases, however, statutes provide that one paying money on an 
 illegal contract may recover it from the person receiving it, as where 
 
 ■ 5 Jolin. 585. 3 "Watts, 433. 9 Ind. = 8 Bosw. 148. Cal. 365. 11 Ohio, 
 166. 14 id. 849. 11 Wis. 193. N. S. 534. 
 
 20 
 
154 OF CONTEACT^. 
 
 money is wagered,^ or paid for a ctance in a lottery or raffle,* or 
 where more than twenty-five dollars is lost at play.^ 
 
 All cases which arise may be more or less easily grouped in prin- 
 ciple, under one of these heads. 
 
 § 308. In order to give illustrations of the classes of cases enume- 
 rated in the preceding section, the following abstract of decisions 
 under each of them, where actions have been, and where they have 
 not been maintained, has been collated. They are not given as aE 
 the reported decisions,, but as sufficient to show the variety of trans- 
 actions from which are implied the receipt of money to the plaintiff's 
 use, and a promise to pay it to him, and such as are not within the rulfe,, 
 as. given (and now corrected), in the fourth edition of this Treatise, 
 with some additional cases. 
 
 Under the siest class, when received by agents^ attorneys, officers,. 
 &c., and held to be received to the plaintiff's use : Money received 
 by an agent oV attorney for the plaintiff, who refuses to account for 
 it and pay it over ; 4 I}ay, 115 ; 3 Greenl. 369 ; 7 id. 298 ; 3 Cowen, 
 623 ; or where he has received a note for the plaintiff for which he 
 refuses to account ; 3 Mass. 403 : received by the defendant to pay 
 over to the plaintiff; 11 Mass. 147 ; 3 Har. c& McHen. 4&1 ; IT 
 Mass. 575,400 : received by the defendant, a banker, to pay a bill 
 deposited with him belonging to the plaintiff, although the banker's 
 clerk had told the' person paying the bill he could not give it up until 
 he had seen his master ; 14 lEast, 582, n. : received by the defendant 
 from the plaintiff to retain until it should be ascertained whether it 
 should be paid to a third person, and by the defendant paid over 
 without plaintiff's concurrence ; 7 Moore, 465 : received by the 
 defendants, assignees of a bankrupt, or an insolvent debtor, and due 
 to the plaintiff for his dividend under the order of the court ; Doug. 
 407, or received by him under a voluntary assignment in favor of 
 creditors ; 4 Pioh. 59 : received by the defendant to whom securities 
 had been given in trust to collect and pay certain debts, and the 
 balance to the plaintiff; 12 John. 276; 1 Har. c& Gill, 485 : where 
 the defendant, plai-ntiff 's factor, had sold his goods and taken in pay- 
 ment for them and a debt of his own, the purchaser's bond, although 
 no money in fact had been received ; 6 Cowen, 1S3, note a : or where 
 he has repeived the purchaser's note, when not authorized to sell 
 upon credit ; 6 Pick. 389 : or where goods have been consigned by 
 the plaintiff to the defendant to sell, and he, after an unreasonable 
 
 » 3 B. S. (Banks' Stli ed.) 934, § 9. » 3 R. S. (Banks' 5th ed.) 935, § 14. 
 
 »3 R. S. (Banks' 5tli ed.) 939, §§ 31, 33. 
 
MONEY HAD AND EEGEIVED. JSg 
 
 time has expired, has refused to render an account of them ; 1 Pidk. 
 214 : or where he sells with a del credere commission when the term 
 of credit has expired; 7 Pick. 220 : the plaintiff's share of moneys 
 received by the defendant as the whole price of an article held hy 
 him and the plaintiff as tenants in common ; 15 John.l?>Q ; 1 Wend. 
 4T0 ; 5 Oreenl. 381 ; 11 Iowa, 506 ; 43 Ba/rl. 215 : the plaintiff's share 
 of the proceeds of a fishing voyage on which he was a sailor, received 
 By the defendants, the owners of the vessel, on sale of the cargo ; 7 
 Pick. 146 : the plaintiff's share of moneys received by the defend- 
 ant, his co-surety, for the amount they have been compelled to pay 
 as bail for a third person ; 1 Wend. 202 ; 5 id. 48 : received by the 
 defendant, a nominal party in a lawsuit conducted by the plaintiff; 
 4 Mass. 326 ; 6 Gowen, 193 : received by the defendant from the 
 plaintiff as stakeholder upon an unlawful wager ; 10 John.- 468 ; 8 
 Penio, 103 ; 1 Oomst. 392 : received by the defendant, the drawee 
 of a bill of exchange which he had not accepted, to enable him to 
 pay it, the plaintiff being the endorsee of the bill ; 3 Camp, 1Y6 : 
 received by the defendant, the drawer of a bill from the plaintiff, 
 the acceptor, to pay it, where the drawer succeeds in a defense upon 
 the bill ; 3 Cam/p, lOT :. received by the defendant, the holder of a 
 note from the plaintiff, an endoTser upon it, to pay a judgment reco- 
 vered upon it against the plaintiff, when it appeared that previous to 
 the payment the defeudant had discharged a prior endorser ; 4 Wend. 
 360 : where the defendant, an insiirance broker,, had, without receiv- 
 ing for the plaintiff his principal, moneys due him from the under- 
 writerSj discharged them upon an adjustment, with them of private 
 accounts ; 1 Ganvp. 399 : money levied by the defendant, a sheriff, 
 upon the plaintiff's execution ; 6 Gowen, 465 ; 1 Wend. 534 : where 
 the defendant, a sheriff, has returned an execution as collected, with- 
 out demand of payment ; 3 Gamp. 34T ; 2 Qreenl. 91 : where the 
 defendant, a sheriff, has taken a note from a defendant in an execu- 
 tion to indemnify him for an escape, and the plaintiff' has demanded 
 the note and he refuses to give it to him ; 5 Wend. 207 : moneys 
 received by the defendant, an administrator, who has drawn an order 
 in favor of the plaintiff for his debt against the intestate, the order 
 having been allowed defendant on his accounting, but never having 
 been accepted by the drawee ; 13 John. 510 : received by the defend- 
 ant as the fees of an office belonging to the plaintiff", under pretense 
 of title; 2 Mod. 260; 2 Zev. 245; 2 Show. 21; T. Jones, 126; 
 Freem. 473 ; 14 Ablott, 178 ; 20 Ind. 1 : received from the public 
 treasury by the defendant, the principal keeper of a penitentiary, to 
 
156 OF CONTEACTS. 
 
 pay the plaintiff, a deputy keeper, for his services ; 1 Har. S John, 
 
 157 ; '30 Bari. 238 : or by a government agent to discharge a contract 
 with plaintiff, upon refusal to pay over to him ; 9 Mass. 272 : under 
 the lien law of the «ity of JSTew York, an action for money had and 
 received was maintained by a mechanic against the owner of a build- 
 ing for moneys due by the contractor to the mechanic for work done ; 
 12 Wend. 373. 
 
 In the following cases, however, an action for money had and received 
 has been held not to lie : against an attorney, for moneys collected by 
 him where a demand had not been made before suit ; 5 Cowen, 376 ; 
 4 Greenl. 532 ; 37 Mo. 180 ; see also 6 Mil, 540 : by a plaintiff who 
 was an agent of A, against a bona fide assignee of an award in favor 
 of A, which included expenses incurred by the plaintiff in obtaining 
 it, and due to him from A ; 4 Dai/, 42 : by a plaintiff against the 
 defendant, to whom he had paid a note sent by A to be collected of 
 plaintiff, and the proceeds to be paid to B, a creditor of A, the plain- 
 tiff protesting against such payment by the defendant ; 14 £^ast, 582 : 
 against a banker who receives from the agent of several persons a 
 sum to disti'ibute among them, after the agent has drawn out part 
 of the fund and distributed it ; 5 Taunt. 447 : by a creditor against 
 a defendant with whom Ahas deposited £100, to be distributed to 
 his creditors in proportion to their claims, before the proportions in 
 which the distribution is to be made is determined ; 1 Stark, 298 : 
 against one to whom money has been paid in ti-ust for a specific 
 object, as for conducting an action, until the trust is closed and it 
 appears that a balance is left ; MoWs N. P. 500 : by the survivors of 
 an insolvent firm, whose agent having power to collect its debts and 
 pay over their proceeds to its creditors, has left money with the 
 defendant to pay debts due from the firm ; Anth. JV. P- 45 : by 
 the assignees of an agent to recover money paid by him to his prin^ 
 cipal, the principal knowing that the agent had not received it • 4 
 Ba/rn. & Gress. 715 : against one who receives money for one pur- 
 pose and applies it to another, that is, lays it out on a bad instead of 
 a good security ; 2 Brod. c& Bing. 372 : against one with whom a 
 sum of money had been left by plaintiff to indemnify him against 
 bills of exchange which he had endorsed for the accommodation of 
 another, the bills still outstanding but barred by the statute of limi- 
 tations ; 3 Camp. 418 : by a workman to recover of his immediate 
 employers moneys beyond what had been paid him, it appearing 
 that they had received a larger sum for the object from the person 
 for whom the work was done : 2 Car. <& Payne, 363 ; against one 
 
MONET HAD AND EEOEIVED. 157 
 
 boTind by contract to pay ^ sum when lie shall receive it of his debtor 
 he having taken a mortgage from the debtor to secure the debt ; 4 
 Pick. 60 : to recover the value of foreign securities paid to the 
 defendant where he has had no opportunity of turning them into 
 money ; 1 Younge <& Jer. 380 : where plaintiff paid money to seamen in 
 advance for their wages, which they deposited with the defendant to 
 indemnify him for covenanting that they should not desert, they 
 having deserted ; 13 John. 508 : where a debtor of plaintiff placed 
 money in defendant's hands to pay the debt, there being no commu- 
 nication or understanding between the plaintiff and the- debtor con- 
 cerning it ; the reason here given was that there was no privity 
 between the plaintiff and the defendant, and the debtor might at 
 / any time make a different disposition of the money ; 2i Wend. 260 : 
 by plaintiff against an agent whom he had directed to send money 
 by a certain route, when the agent sent it by another, by which 
 means the money got into the hands of his creditors ; 2 Camp. 68 : 
 by a banker against a partnership for money paid by him and charged 
 the partnership upon a bill drawn by one of the partners in his own 
 name, the bill having been negotiated by the same agent who had 
 procured discounts from the banker for the firm ; 15 JEast, 7 : by 
 one who lays illegal wagers in the defendant's name, and then with- 
 out his subsequent direction pays them ; 4 Tauni. 165 : by plaintiff 
 in whose name defendant makes a contract, sues and collects money 
 upon it without the knowledge of the plaintiff ; 4 Tavmt. 380 : by 
 a landlord against a sheriff who sold the goods of a tenant without 
 paying a year's rent due ; 3 Ca/rrif. 260 : where the pl&.intiff, a ser- 
 vant of the defendant, found bank notes and showed them to him, 
 and he took them, saying they were not his, but refused to deliver 
 them back, the court holding that the action should have been for 
 their wrongful conversion ; Esp. Dig. 99 : by the purchaser of an 
 equity of redemption against a mortgagee for the surplus arising on 
 sale of the mortgaged premises, the mortgagee having obtained a 
 judgment against the mortgagor, which was a lien against them at 
 the time of the purchase of the equity of redemption ; 13 Wend. 
 488 : against a pauper by overseers of the poor, for money advanced 
 for his relief; Chi'p. 45. 
 
 § 309. Under the second class of cases, where in consequence of 
 mistake or deceit, the defendant is held to have received money to 
 the plaintiff's use, are the following : as a general rule, the inquiry 
 is to which party, in equity and justice does the money belong ; 2 
 Denio, 91 ; 24 IIow. Pr. R. 358 ; 18 Gal. 165, 404 : money paid to 
 
158 O'E CONTEAOTS. / 
 
 defendant by tlie plaintiff Tinder a mistake of facts ; 6 Barn. <& Oress. 
 611 ; 3 Wend. 412 ; 3 id. 69 : overpaid by mistake on a purchase of 
 goods, or where by mistake, a note for goods purchased was given 
 for more than the price, notwithstanding it was paid after the dis- 
 covery of the mistake ; 4 Pioh. 228 : where on settlement of a bond, 
 the obligor was, by mistake, credited with a year's interest which 
 had not been paid ; 8 Wmd. 561 : money paid the defendant for a 
 bank note or a bill of exchange which turns out to be a forgery, 
 neither party knowing it at the time ; 5 Taunt. 488 ; 2 Har. <& John. 
 368 ; 1 Sill, 287 ; 2 Somd. 431 ; 1 Corns. 113 : but in the case of a 
 forged bank note it should be returned within a reasonable time, or 
 the right to recover the money paid for it will be waived ; 17 Mass. 
 33 ; 6 SiU, 340 : paid by the plaintiff to defendant for an endorsed 
 note, the endorsement being a forgery ; 3 Yeates, 531 : paid by the 
 plaintiff to defendant in taking up a bill for the honor of a supposed 
 endorser, where the signature of the drawer, acceptor and endorser 
 are forgeries. In this case, there were several genuine endorsements 
 struck out by the plaintiff, but the fact of the forgeries was discov- 
 ered and communicated to the defendant in season to enable Mm to 
 charge the endorsers, whose signatures were genuine ; 5 Dowl. c& 
 Ryl. 403 ; 3 Barn. & Cress. 428 : paid by the plaintiff, the banker 
 of the supposed acceptor of a forged bill, to the defendant, the 
 agent of an endorser ; 1 Car. cS; Payne, 197 ; Ry. .& Mood. 49 : 
 where the plaintiff, the promisee of a note, received from the defend- 
 ant a counterfeit bank bill in payment ; 6 Mass. 182 : money paid 
 by the plaintiff to defendant upon the return of a bad check, mista- 
 kenly supposed to have been sent by the plaintiff to the defendants' 
 bank ; 3 Mass. 74 : paid by the plaintiff, the endorser of a note void 
 in its creation, to the defendant, the holder of the note, notwith- 
 standing the endorsement was bona fide ; 8 Mass. 402 : money 
 received by the defendant upon an execution in his favor, the pro- 
 ceeds of goods not belonging to the debtor, levied upon and sold by 
 the sheriff, the plaintiff; 2 Camvp. 452 ; 9 Ind. 1 ; 10 id. 172 ; 6 
 Iowa, 219 : where the plaintiff, the endorser of a bill upon which 
 he has not been charged, pays it under the belief arising from a mis- 
 apprehension of facts that he is liable ; 9 Mass. 408 : money paid 
 by a guardian for his ward for a deed of land which the ward had a 
 right to redeem, of which fact the guardian was ignorant ; 1 Aih. 130 : 
 money paid as rent to the defendant, who claimed to be the devisee 
 of "*lands held by plaintiff as tenant, plaintiff being subsequently 
 compelled to pay it to the heir ; 6 Man. <& Ryl. Qi; 10 Bam, c& 
 
MONET HAD ABD EECEIVED. Ig9 
 
 Cress. 234 : paid by an executor or administrator, who supposes the 
 estate he is administering solvent, for a debt against it, it subse- 
 quently appearing to be insolvent; 11 Mass. 380; 16 Ind. 160: 
 moneys received by the defendants, assignees of a btokrupt, from the 
 sheriff, by him collected on an execution against the bankrupt, in the 
 plaintiff's favor ; 1 Dowl. <& Ryl. 482 : paid to the defendant, a col- 
 lector of taxes, who had advertised the lands of several non-residents 
 for sale, and received the whole expense from the plaintiff, who was 
 one of them ; 2 Day, 369 : where on settlement of accounts, a note 
 was given by mistake for more than the true balance, the excess was 
 held money received to plaintiff's use, although the note was unpaid ; 
 1 Greenl. 152 ; money by mistake paid by the plaintiff to the defend- 
 ant, an agent, who had before notice of the naistake carried it to the 
 credit of his principal upon his books : 3 Mmi,le ds Selw. 344. To 
 protect the agent against the payment, it must appear that he received 
 the money for his principal, and had actually paid it to him before 
 notice of the mistake ; 1 Taunt. 359 ; 5 id. 815 : money received by 
 the defendant as the proceeds of plaintiff's goods taken by the 
 defendant and others, notwithstanding the plaintiff" had obtained a 
 judgment for the taking of them- against the other persons, such 
 judgment not being satisfied ; 2 Hall, 449 : money obtained by any 
 overreaching, false allegation, or fraudulent concealment ; 4 Mass. 
 488 ; 13 8erg. c& Haiole, 259 : withheld contrary to equity ; 17 Mass. 
 575 : money obtained upon the note of defendant, upon which' he 
 had forged the endorsers' names^ notwithstanding the note has not 
 become payable ; 15 Mass. 75 : received upon a purchase of an 
 article sold by defendant, which he fails or refuses to deliver ; 1 Sir. 
 407 : received under fraudulent pretenses from the plaintiff for a 
 quitclaim deed of lands ; 2 Day, 252 : or for a pretended claim for 
 bounty land, by one who falsely represented himself entitled to it ; 
 Id. 837 : money received by a partnei^hip on the false representa- 
 tion of one of its members in a partnership transaction ; 2 Darn. & 
 Aid. 795 : received by the defendants upon a check lost by plaintiff 
 and purchased by defendants for value but under circumstances to 
 excite suspicion ; 5 Dowl. <& Ry. 324 ; 6 id. 455 ; 4 Dan-n. & Cress. 
 330 ; 2 Car. c& Payne, 11 : where the defendant paid the plaintiff 
 bills of a broken bank, with reasonable grounds to suspect they were 
 worthless ; 6 Mass. 182 : money received by the defendants from 
 plaintiffs upon a check, the defendants at the time knowing that it 
 was post-dated and the drawer insolvent, and that the plaintiff had 
 none of his funds, but expected to receive some soon ; 1 Brod. A 
 
160 OF CONTRACTS. 
 
 Bmg. 289 ; Gow, 123 : where the defendant fraudulently induced the 
 plantiff to sell goods to an in-esponsible person, and then upon the sale 
 of them by him obtained the money received for them ; 2 JBrod. c& 
 Bing. 369 ; 3 Saund. 274 : where the defendant, without giving 
 value for them, has got possession of bank notes lost by plaintiff; 2 
 Car. c& Payne, 176 : money deposited by the plaintiff with the 
 defendant for a particiilar purpose and misapplied ; 2 Bos. & Put. 
 277 ; 4 Oowen, 607 : money fraudulently obtained by the defendant 
 of the plaintiff, although entitled to it, if the right depends ^^pon a 
 question not of common law jurisdiction ; 1 Oanvp. 124 : money paid 
 on an execution issued on a satisfied judgment ; 15 Wend. 321 ; 8. P. 
 22 Ind. 482 : money paid by the plaintiff on the purchase at a con 
 stable's sale of a chattel interest in lands, the constable refusing to 
 convey it ; 19 John. 73 : where the plaintiff was the consignee of 
 certain goods of A as a collateral security, and the defendant, ano- 
 ther creditor, subsequently took an assignment of them, and sold 
 them and received their price ; 1 Camp. 554 : money received by 
 the defendant to pay a bill of exchange to the plaintiff, but which he 
 applied to pay his own debt ; 17 Mass. 575 ; Id. 400 : money paid 
 by the maker of a note under an agreement that it should be endorsed 
 upon it, the defendant not endorsing it, and then taking judgment for 
 the full amount; 16 J/fflss.306; contrai:Z Ba/rb.Zlo. Where the defend- 
 ant has received the plaintiff's money, it is no defense to him that he 
 has paid it out upon a forged order or receipt, nor that he has paid it 
 upon a check which had been altered. 8 Bowl. (& Pyl. 464 ; 5 ^arn. 
 & Cress. 750. And in all cases where money has been paid by the 
 plaintiff to the defendant by mistake, notice of the mistake and 
 demand of repayment, before bringing the action to recover it 
 back, are unnecessary. 18 John. 485 ; see also 19 JV. Y. P. 499 ; 26 
 Ba/rl. 423 ; 27 id. 354. 
 
 In the following eases the action was not "sustained : where plain- 
 tiff voluntarily paid an award made by arbitrators, although it was 
 obtained by fraud ; 8 Mass. 402 ; 12 id. 134 ; 1 Bay, 130 : money 
 paid under a full knowledge of the facts, but under a mistake as to 
 the law ; 14 Iowa, 86 ; Id. 226 ; 24 Cal. 585 ; 5 Taunt, 143 ; 9 
 Cowen, 674 ; in the latter case the doctrine of payments by mistake 
 is very fully examined : paid on a disputed claim, although the party 
 paying expressly reserve his right ; 1 Bay, 130 : or to compromise an 
 action the party paying having a full knowledge of the facts and the 
 means to prove them ; 2 Jac. (& Walker, 249 : paid on a forged note, 
 both parties being innocent in the transaction ; 17 Mass. 1 ; 2 Min. 
 
MONET HAD AND EECEIVED. 161 
 
 78 : paid by an executor who had requested the defendant to purchase 
 a note against the estate, when it appears that the amount paid 
 exceeded the dividend to which the note woiild entitle the holder ; 7 
 Pick. 46 : against an agent for the price of goods sold by him, it appear- 
 ing that he had not received the payment for them ; 2 Deill. 242 : 
 money paid to redeem lands sold upon avoid assessment, notwithstand- 
 ing the plaintiff protected against its legality ; 2 Sand. 4T5 : paid by 
 the drawee of a forged bill to an innocent holder ; 3 Corns. 230 ; see 4 
 id. 147. But where upon a settlement of accounts between plaintiff 
 and defendant, a third person computed the interest and without 
 their knowledge compounded it, and the plaintiff brought his action 
 for the excess of interest, it was held a mistake of fact, and the 
 plaintiff recovered ; 2 Denio, 107. 
 
 § 310. Under the thied class, money paid upon a consideration 
 which happens to fail, are the following decisions : money paid the 
 defendant on the sale of property the title of which turns out to be 
 defective; 5 Burr. 2639; 5 Pick. 480 : and this though the pay- 
 ment have been made in the note of a third person, this'being deemed 
 an equivalent to the payment of money ; 8 Cowen, 272 : where the 
 thing contracted to be sold is not delivered ; 1 Str. 407 : where land 
 contracted to be sold could not be found ; 1 Dal. 428 : money paid 
 to the defendant on his contract to deliver a chattel, and the delivery 
 is a condition precedent to the sale, when before the delivery the 
 chattel is destroyed ; 1 Wend. 58 ; see 25 N. Y. 272 : paid by plain- 
 tiff as the price of hay sold by him for the defendant, and paid to 
 him before payment by the purchaser or delivery, when the defend- 
 ant's servant sent to deliver it is before delivery cheated out of it ; 8 
 Bing. 86 : obtained on a bill of exchange received by defendant in 
 advance for goods which are not delivered ; 4 Maule c& Seko. 476 : 
 paid for goods which turn out to be of a different kind from those 
 contracted for and of little value, the plaintiff returning them, and 
 this though there be neither fraud nor warranty ; 15 Mass. 319 : paid 
 for premium of an insurance when the risk never, commenced ; 3 
 Burr. 1237 : where the premium on a policy is paid by a note to the 
 satisfaction of the underwriters, and the insured is entitled to a 
 return of the premium, althought the note is not paid ; 14 Mass. 121 ; 
 money paid under an agreement which the defendant was unable to 
 perform ; 1 Wend. 58 ; 2 I^sp. 6^9 ; 7 Term, 111 : or which he does 
 not perform ; 8 Barn. <& Cress. 575 ; 26 III. 396 : and this whether 
 the agreement be sealed or by parol ; 1 Caines, ,47 : money paid by 
 the plaintiff on a parol contract for land, or received by the defend- 
 2] 
 
162 OF OONTEACTS. 
 
 ant on a note given Lim by the plaintiff on such contract, the con^ 
 tract being void by ^he statute of frauds ; 15 John. 503 : advanced 
 to the defendant, a broker, to pay duties on goods, upon his repre- 
 sentation that he would by their sale discharge his lien and leave a 
 surplus, the sale being defeated ; 5 Taunt. 446 : money paid to 
 defendant as a consideration for a servibe contracted to be performed, 
 which he puts it out of his power to perform, or when he prevents 
 the plaintiff from perforining his part of the contract, and so defeats 
 it ; 7 Cow&nJ, 24 : money paid by the plaintiff, an endorser upon a 
 judgment recovered against him on a note, where the holder, before 
 the judgment, had discharged his prior endorser ; 4 Wend. 360 ; 
 money paid to defendant upon a security which turns out to be 
 of no value, or different from what was intended, as upon a genuine 
 note with a forged endorsement j 15 Mass. 75, 331 : paid a bill broker 
 on the discount of a bill which he did not endorse, it being forged, and 
 the money having been paid over by him to the endorsee ; 1 By. <& 
 Mood. 49 : money paid on a subscription to support a minister where 
 the fund was not so applied ; 3 Pick. 322 : paid for the future main- 
 tenance of a bastard child, who dies before the expense is incurred ; 
 3 Moore, 211 ; 1 JBrod. <& Bing. 1 ; 25 jy, T. 289 ; see also 3 John. 
 335 ; 45 Ba/rh. 610. 
 
 In the following cases the action was not sustained : for moneys 
 paid for premium upon a void insurance, the action being brought 
 after the risk was over ; Doug. 468 : money paid for the use of a 
 patent which turned out not to be an original invention ; 4 Bos. ds 
 Put. 260 : paid on a parol contract for lands, there being no default 
 in the vendor ; 9 Gowen, 46 : money paid on an agreement to pur- 
 chase lands where all the payments were not made according to the 
 contract, and the land is sold to another ; 4 Barb. 354 : paid as the 
 consideration of a quit-claim deed on the title failing, there being 
 neither fraud nor warranty ; 1 Mass. 65 : so though there be a 
 covenant that the grantee shall have it after grantor's death ; 4 Mass. 
 136 : paid an executor for lands of his testator sold under a license 
 for the payment of debts, the lands having been recovered from the 
 plaintiff by an older and better title ; 4 Greenl. 101 : paid by a 
 judgment creditor to redeem land, he failing to pay the whole .debt; 
 .6 Greenl. 142 ; paid for lands purchased, aftei*ward ascertained to 
 he deficient in quantity, the relief being an equitable* one ; 3 John. 
 506 : paid for goods delivered agreeably generally with the sample 
 and contract, but miserable in quality, and wholly unfit for use the 
 proper remedy being upon the implied warranty ; 2 Gamp. 416 : an 
 
MONET HAD AND RECEIVED. 163 
 
 action by tlie payee agaibst tlie maker of a note on the failure of its 
 consideration, tlie giving of a note not being an equivalent to the 
 payment of money, unless it be received as such in payment or dis- 
 charge of a liability of the party sought to be charged ; IWend. 424. 
 
 § 311. Under the fotjeth class, -vfhere money has been paid as a 
 consideration for an agreement which is afterward rescinded, are 
 the following cases : money paid by the plaintiff upon a conditional 
 sale, or contract that is rescinded ; 1 Term, 133 ; 1 Games, 47 ; 12 
 Jbkn. 363 : money paid by the plaintiff to the defendant in conside- 
 ration of an act to be done by him, and which he fails to do ; 3 I'ick. 
 20 : money paid on a contract void for want of power in the opposite 
 party to contract ; 7 Mass. 31 : in consideration of a void bond ; 2 
 Bos. c& Pul. 467; see also 5 John. 85; 12 id. 274; 4 Cow. 2'49; 19 
 Barb. 222 ; 21 id. 26 ; 30 id. 20. 
 
 Where, however, a payment has been made upon a contract still 
 open, and neither fulfilled or rescinded, the action will not lie ; Doug. 
 23 ; 7 East, 274 : nor upon one which has been in part executed ; 1 
 N. S. 17 : and generally where one who seeks to recover money paid 
 under a void or rescinded contract, he must show that he in fact paid 
 money ; 5 Ba/r\. 319^. 
 
 § 312. Under the fifth class, moneys received iu pursuance of a 
 void authority, it is held that money paid by the plaintiff to the 
 defendant under the sentence of a court having no jurisdiction, may 
 be recovered ; Ld. Baym. 742 ; Gowp. 419 ; 4 Gowen, 454. So if 
 paid to the innocent second endorsee of a certificate of deposit which 
 hadbeen stolen, and an endorsement of the payee forged; 1 Hill, 295 : 
 or if paid to the holder of a draft payable to the order of one whose 
 endorsement is forged; 1 Hill, 287; 2 Sand. 431; 1 Goms. 113. 
 The action was sustained against a United States marshal to whom 
 the plaintiff, a surety upon a recognizance estreated by the United 
 States circuit court, had voluntarily paid the penalty, and afterward, 
 when the court adjudged the recognizance void, before the money had 
 been paid over by the marshal, demanded it of him ; 1 Bari. 355. 
 
 In the following cases the action was not sustained; against one 
 having money belonging to an estate, who paid it to one having the 
 probate of a forged will ; 3 Term, 125 : against a tax gatherer for 
 a tax erroneously paid, but which he has paid over ; 4 Term, 553 ; 
 / Cowp. 66 : against a public- oflSeer who has collected money by order 
 of his official superiors ; 1 Jolm. S15 ; money paid with knowledge 
 of the material facts, in satisfaction of a claim which could not be 
 enforced at law ; 4 Pick. 114 : paid on an illegal distress, the remedy 
 
164 OF CONTEACTS. 
 
 being for the wrongful act ; 2 N. M. 461 : by the drawee of a forged 
 bill against an innocent endorsee to whom he paid the amount ; 3 
 Bwr. 1354 ; 6 Tomnt. Y6. 
 
 § 313. Under the sixth class, moneys obtained from the plaintiff 
 by exteO'tion, imposition,, or taking an wndue ad/va/ntage of his situa- 
 -iion, are the following : paid by the plaintiff to officers of the revenue 
 to discharge goods which he seized for want of a permit, when in 
 fact they had one ; 4 Term, 485 : fees unduly extorted from the 
 master of the plaintiff's vessel by the defendant, a custom-house 
 officer ; Cowp. 805 : tonnage duty or light money unlawfully demanded 
 by a collector of the customs and paid for a clearance ; 9 John. 201 : 
 unlawful fees required by a district clerk of the United States court 
 in a suit relating to the wrongful seizure of a vessel before he would 
 give an order for its delivery ; 9 John. 370 : money demanded for 
 illegal fees and paid to a public officer ; 4 Dowl. cfe Hy. 283 ; 2 Ba/rn. 
 & Cress. Y29 ; 2 Barn. & Aid. 662 ; 1 Chitiy, 295 : excessive tolls taken 
 from plaintiff ; 2 Barn. & Aid. 206 ; 4 Barn. <& Cress. 200 : paid 
 to liberate a raft of timber detained to exact illegal tolls ; T Oreenl. 
 134 : money received by the defendant a landlord, upon a distress 
 for his whole rent, when a part had been paid by the tenant for the 
 property tax, upon an agreement that it should be credited on 
 account of the rent ; 1 Maule <& 8el. 609 : paid under terror of a 
 threatened distress which is unauthorized ; 1 Taunt. 359 : paid for 
 irregular charges made by a landlord against his tenant in considera- 
 tion of a forbearance to distrain for rent ; 5 Bi/nig. 37 : paid the 
 defendant to whom goods were pledged, who refused to deliver them 
 without receiving more than was due upon them ; 2 Sin: 915 : paid 
 an insurance company on its refusing to transfer to plaintiff certain 
 shares purchased by him, until he had paid certain notes it held 
 against a former insolvent holder of the stock ; 3 John. Cas. 238 : 
 paid as the only means of recovering possession of property to which 
 the plaintiff was entitled ; 9 Bowl. & Eyl. 889 ; 7 Barn. c& Cress. 
 73 : where defendant had obtained possession of the plaintiff's tickets 
 to a masquerade, an action for money had and received was main- 
 tained against him, on the presumption that he had sold them and 
 received the mo'ney for them ; Doug. 131 ; see also 2 Kern. 99. 
 
 In the following cases an action will not lie : for money voluntarily 
 paid on a disputed claim, though the party reserve his right ; 1 Bay, 
 130 : paid under compulsion of legal process, the plaintiff before 
 payment knowing the cause of action, and there being no fraud, 
 although it afterward be discovered that the money was not due ; 2 
 
MONEY HAD AND RECEIVED. 165 
 
 Moore cfe Scott, 811 ; 9 Bing. 644 : paid voluntarily for toll of which 
 the law would not compel the repayment ; 2 Cowen, 419 : paid for 
 forbearance to sue ; 2 Mott c& McOord, 133 ; paid -f oluntarily when 
 the defendant may with a good conscience retain it, although he 
 could not recover it at law ; 1 Dal. 147 : paid to the defendant to 
 release plaintiff's cattle which he had impounded damage feasant, 
 the right to impound them being disputed ; Cowp. 414 : • paid by the 
 owner of lands sold by loan officers, to obtain a release from the defend' 
 ant who had purchased them agreeing to buy as trustee for the owner ; 
 14 John. .358 : an action by one who had distrained goods and deliv- 
 ered them to defendant pn his promise to pay the rent ; 4 Term, 687. 
 
 § 314. Under the seventh class, where money has been embezzled, 
 or stolen by a man's clerk or servant, or obtained from him by cheat- 
 ing at play, a nurse who on the death of the person she attended 
 embezzled his moiiey, was held to have received it to the use of his 
 estate ; Bull. If. P. 130 : so where a carrier, employed to carry the 
 plaintiff's money, or a clerk, lost it at a gaming table, a recovery was 
 had against the winner ; 17 Mass. 560 ; 2 Keyes, 198. 
 
 § 315. Under the eighth class, where money has been recovered 
 that has been paid upon a judgment or decree, which after the pay-^ 
 ment has been reversed for error, the following cases are found : 6 
 Cowen, 297; Id Wend. 354; '2,4:W6nd. 32; 5 Paige, 539 ; 1 Ear. <& 
 John. 405 ; 18 Cal. 275 ; 29 Barh. 87 : where the plaintiff held a 
 bottomry bond for money lent, and after a capture and condemnation 
 of the vessel, the condemnation was reversed and a compensation 
 awarded and paid, the action was sustained against the obligor ; 3 
 Mass. 443. 
 
 In the following cases, the action was not sustained : to recover 
 money paid on a judgment of an inferior court on the ground that it 
 was unjustly recovered ; 8 John. 470 ; 2 Cowen, 428 ; 1 iV. ^ 33 : 
 or that a good defense has since been discovered; 9 John. 232 : or 
 that the party paying had a good defense which he neglected to inters 
 pose ; 9 John. 244 ; 2 Esp. 546 : money paid under the erroneous 
 sentence of a foreign court ; 1 Yeates, 533 : paid on a tax overcharged 
 by the assessors ; 6 Pioh. 98 : to recover back any part of money 
 paid a sheriff on a forfeited recognizance, where after payment it is 
 mitigated by a court not authorized, to a small sum, which only the 
 sheriff pays, and then agrees to pay plaintiff the balance ; 7 Ba/rn. <& 
 Cress. 293 ; 2 Gar. & Payne, 621 : against defendant, a creditor of 
 B, to \vliora B assigns a judgment against the plaintiff to apply on 
 his debt, which the plaintiff pays the defendant, and the judgment 
 
166 OF GONTEACTS. 
 
 is afterward reversedj B haying become insolvent ; 2 Day, 153 : 
 money paid in satisfaction of a valid judgment although upon an 
 execution which is irregular ; 6 Barb. 308. 
 
 § 316. Under the ninth class, to recover back moneys paid upon 
 any contract declared void by the common law or by statute, are the 
 following eases : money paid to compound a qui tarn, action ; 8 East, 
 378 : or to a magistrate for the use of the poor to avoid a prosecutiofn 
 for a misdemeanor ; 9 East, 49 : paid a lottery office keeper for illegal 
 insurance of lottery tickets; 2 JBl. 1073 ; IH.Bl.Q^; Oowp, 790 : 
 or expended by the plaintiff's clerk without his knowledge for such 
 a purpose ; Cowp. 197 : paid to a stakeholdei' on an unlawful wager ; 
 3 Denio, 103, 107 ; 1 Corns. 392 : paid to induce a creditor to sign a 
 bankrupt's certificate ; Doug. 696, Zd ed. note 3 : to withdraw appo- 
 sition to an insolvent's or bankrupt's discharge ; 2 John. 386 ; 3 Sd- 
 den, 176 : paid on a contract which is malum prohibitum,, if the 
 action be founded on its disaffirmance ; 8 Gowen, 20 : or on an illegal 
 executory contract ; siee 21 N. Y. 490 ; 8 Barb. 233 ; 20 id. 429 ; 8 
 Ba/rn. cfe Ore&s. 221 : paid by a debtor for interest beyond the legal 
 rate : 29 John. 290 ; 41 Ba/rb. 560 ; 11 Mass. 368, 3^76 ; 13 id. 104 ; 
 9 id. 38 ; 2 Aih. 303. 
 
 In the following cases, the action does not lie : money voluntarily 
 paid by plaintiff to obtain the performance of an agreement for which 
 he has no legal rtsmedy, as a parol agreement concerning lands ; 4 
 John. 240 : paid for a pretended title to lands of which the vendor is 
 not in possession ; 1 Mass. 65 : paid in advance on a contract with 
 defendant to deliver in 60 days, 100 shares of stock which he then 
 owns, on the ground that at the time of delivery he had but 40 shares ; 
 7 Gowen, 24 : paid a district attorney for discontinuing a criminal 
 prosecution ; 2 Gonn. 209 : paid on an illegal contract for mainte- 
 nance ; 6 Cowen, 431 : under the English statutes prohibiting unlaw- 
 ful wagers, where moneys are deposited with a stakeholder and by 
 him paid over to the winner with the loser's consent, they cannot be 
 recovered. The statutes of this state, however, while declaring all 
 contracts in violation of the laws against gaming, raffling and lotteries 
 void, authorize the recovery of moneys staked or raffled for, in the 
 hands of a stakeholder, or of whomsoever they may be, and whether 
 paid over by the stakeholder or not ; 1 B, S. 652, 665 ; 2 id. 
 {BanM Uh ed.) 924 and 929, §§ 9 and 25. 
 
 [§ 8160!.] Other cases where the action has been sustained are : 
 where the owner of real estate, sold for taxes, but regularly redeemed, 
 buys it of the purchaser, who tells him he has received a conveyance 
 
MONET HAD AND EECEIVED. 167 
 
 wMcli has become absolute ; 4 8el. 331 : for costs illegally demanded 
 .by an attorney ; 18 Wend. 586 : by a surety who has paid a judgment 
 obtained against him in ignorance of the fact that the creditor has 
 discharged a security to which the surety might be subrogated ; 16 
 N. Y. 336 : where, money was deposited with the defendant on an 
 agreement to endorse it on a contract with a third person, when the 
 plaintiff obtained an assignment thereof, there being no agreement by 
 the plaintiff to procure the assignment ; 22 N. Y. 242 ; see 39 Bm-h. 
 136 : where money was paid on an award obtained on an ex pa/rte 
 hearing, upon a fictitious and groundless claim \ ZZ N. Y. % : where 
 a claim about to be enforced for a penalty for running a toll-gate was 
 comj)romised on the mistaken idea that the law gave a penalty ; 10 
 Barb. 436 : for money paid for spurious stock, both parties supposing 
 it genuine ; 19 N. Y. 499 : for bonds sold by an agent, although their 
 issue was unauthorized ; 23 Barb. 425 : where judgment is obtained 
 by default, the defendant not being credited with payments ; 26 
 Barb. 463 ; but overniled ai^d the contrary held in 43 Barb. 315 : 
 for money paid to an overseer of highways, which belongs to the 
 commissioners, and for' which they bring suit ; 40 Barb. 374 : for 
 over payments by mutual mistake or erroneous calculations ; 42 
 Barb. 461 : against one of a firm whO) on dissolution, has assigned 
 all his interest in the assets to his copartners, but afterward collects 
 debts ; 2 Bosw. 36G ; 3 id. 450 : where property is sold for taxes that 
 have been paid, or are otherwise uncollectable ; 9 Iowa, 259 ; 25 111. 
 411 ; 13 Wis. 611 : where a party who has received money for doing 
 an act puts it out of his power to perform ; 25 III. 214 ; 16 id. 492 : 
 where an illegal tax is paid on demand ; 7 Minn. 267 : fol- money 
 paid on void certificates, supposed by both to be valid ; 14 Wis. 241 : 
 for property sold on process against other parties ; 28 III. 135. 
 
 [§ 3165.] Other instances where the action has been held not to 
 lie, are : where money is voluntarily paid to a person who would be 
 authorized to receive it if collectable, upon a claim of right, where 
 there is no misrepresentation of fact, nor any mistake ; 2 Kern. 308 ; 
 3 Ba/rb. 369 ; 16 Ind, 29 ; 25 id. 261 ; 1 Oregon, 292 : where a surety 
 has paid a judgment which the principal has appealed and reversed, 
 and the surety brings his action against the party, not against his prin- 
 cipal ; 20 W. Y. 306 : for money paid to compromise a supposed felony, 
 or on any other agreement forbidden by and against the policy of the 
 law; 15 Barb: 54:1; see also 20 ^ar5. 429; 35 id 236; inacaseof mere 
 agency for the transmission of money, where the action is by the 
 party to whom it is sent ; 16 Barb. 561 ; see also on the same prin- 
 
,168 OF CONTEAOTS. 
 
 ciple, 38 id. 262 : by one wlio has voluntarily performed an agree- 
 ment claimed to be void by the statute of frauds ; 16 Bm-h. 645 ; 17 
 id. ill : by a party -wholly in default, to recover money paid by him 
 in part performance, but who afterwards breads the contract and 
 refuses to go on with it ; 9 Cowen, 46 ; 3. Corns. 88 ; 42 Barb. 58 : 
 .for illegal taxes voluntarily paid ; 17 Ind. 326 : but if to a collector 
 on demand or imder protest, then it may be ; 20 Ind. 301 ; 7 Minn. 
 267; 23 Cal 111; see 26 'ind. 261. 
 
 § 317. Y. Foe money paid foe defendant. Here, to maintain 
 the action, money or something which, has been accepted as its equiva- 
 lent, must have been actually expended for. the defenddrl^ at his 
 request, or under circumstances from which the law will imply a 
 request. As where the plaintiff is so situated in relation to the 
 defendant that he is called upon to make a payment of money for. 
 him. The case of money paid by the plaintiff as surety for the 
 defendant, or as maker or endorser of a note for his accommodation, 
 is a common one under the rules.'^ Also where an agent pays a 
 judgment against himself for a lawful act done in obedience to his 
 principal's instructions ; ^ and where the plaintiff is one of several 
 Co-sureties for a third person, and he pays the obligation, he may 
 recover the money paid from the principal debtor ; or, without show- 
 ing the inability of the principal, may recover from each of his 
 co-sureties ; or, if they be dead, from their legal representatives, their 
 respective shares of the sum paid.^ 
 
 § 318. Wherever the relation of surety exists, whether the surety 
 became so by actual contract or the operation of law, if he is com- 
 pelled to pay the debt which his principal or principals ought to pay, 
 he may bring his action against him or them for the money paid;* 
 and this notwithstanding he paid it upon a bond which could not 
 have been enforced against the principal, if the payment be made 
 without fraud or negligence.' Thus, one who is bail for another can 
 recover all the necessary costs and expenses to which he hafe been 
 put by reason of it, including the expense .of sending for his princi- 
 pal to surrender him ; but not of a suit improperly defended,* nor 
 for trouble and loss of time in going to a place to become the bail.'' 
 
 ' Kirby, 137. 8 John. 349. 5 Serg. Ss ' 4 Hill, 345. 1 Seld. 171. 14 Barb. 32. 
 Eawle, 8. 4 Pick. 283. 1 Wash. T. 108. 27 id. 474. 
 
 ' 38 Barb. 124. ' 14 Mass. 455. 
 
 » 3 N. H. 370. 17 Mass. 464. 2 Sel. 33. » 5 Esp. 171. 2 Wend. 481. 24 Barb. 
 11 Wend. 385. 3 Kern. 59. 546. 3 id. 634. 
 
 '1 Car. & Payne, 434. 
 
MONEY PAID. 169 
 
 And in case of the principal's death, the action lies against his estate.* 
 ^" If a surety pays a judgment which is reversed on error brought by 
 his principal, the surety can recover for what he has paid, of him, 
 but not of the other party to whom he paid it.^ So where a defend- 
 ant in execution escapes from the sheriff or constable, by reason of 
 which the latter is compelled to pay the debt ; or where the plaintiff's 
 goods, being on the premises of defendant with his consent, are dis- 
 trained for his debt, and the plaintiff is compelled to pay the rent 
 to release them, or to buy them upon the sale, the action will lie.^ 
 But in the latter case, if the goods were not redeemed or purchased 
 by the plaintiff, but sold to another, the action would not be for 
 money paid. Where A, at the request of B, defends an action in 
 which the latter is concerned and may be benefited by the event, and 
 a judgment is obtained against A, he can recover the expenses of the 
 defense from B.* 
 
 Some cases hold that interest cannot be recovered on money paid 
 in the absence of an agreement to pay it ; ' but these were overruled 
 in Pease v. Ba/rber ; ^ and subsequent cases give interest in such 
 cases.' 
 
 § 319. The money must, or something which is accepted as an 
 equivalent, be paid by the surety and in discharge of the indebted- 
 ness of the principal. This may be by the surety's promissory note,^ 
 or by land conveyed to the creditor and accepted in discharge of the 
 debt.' It is not sufficient that he has given his bond for the debt,^" 
 nor that he is imprisoned in execution upon it.''^ If the surety extin- 
 guishes the debt by paying only one-half the amoimt, he is entitled 
 to recover no more than he actually paid, either of his principal ox 
 his co-sureties ; ^ and he cannot recover the costs of a suit against 
 him, as surety, fi'om his co-sureties.^' 
 
 § 320. The payment must also be made by the plaintiff, at the 
 Request of the defendant^ either express or implied.^* If, therefore, 
 a sheriff voluntarily suffers an escape, or a constable suffers an exe- , 
 
 ' 33 Barb. 587. 3 Esp. 571. 5 Barb. 319. 38 id. 134. See 
 
 ' 20 N. T. 306. 3 Ind. 47. 34 III. 9. 
 
 » 7 Wend. 119. * 7 Cowen, 663. 3 "Wend. 481. 
 
 •lEap. 163. •« 8 John. 303. 3 Bast. 169. 3B.&Ald. 
 
 » 3 Starkie, 133. 1 Bos. <S5 Pul. 307. 3 51. 
 
 id. 467, 473. 3 Burr. 1005. 5 Car. & P. " 8 John. 349, seJ vid. 38 Barb. 134. . 
 
 498. ■" 3 Wend. 481. 6 Ind. 857. 
 
 • 3 Oaines, 366. " 6 Ind. 357. 
 
 ' 15 N. Y. 397, and refs. " 5 Bosw. 579. 3 Ind. 384. 
 
 " 3 N. H. 366. 4 Pick. 444. 8 John. 303. 
 22 
 
170 OF C0NTEACT8. 
 
 CTition to expire in his hands, and then, without the defendant's 
 request, pays the deht, he cannot recover the money paid.^ So if a 
 collector of taxes pay over my tax without demanding it of me, or 
 if the endorsee of a biU of exchange pay the amount before a demand 
 of the acceptor,^ the payment is a voluntary one. In these cases, 
 however, if the defendant requests the payment to be made, or 
 afterward promises to pay the money,, the action will lie;^ and, 
 the request furnishing the foundation of the claim, where one 
 becomes a surety at the request of another surety, and the latter 
 pays the d^bt, he cannot resort to the former for a contributioii.* If 
 property which has been lost, or is afloat, or an estray is secured, 
 stored, or otherwise cared for at an expense, the one who does it may 
 recover for the money paid, the law implying a request and promise 
 from the owner.' 
 
 § 321. Where one was employed as the agent of certain others to 
 purchase for them a piece of land and take the conveyance io him- 
 self, and a third person, at the request of the principals, became 
 surety for the agent in a promissory note for the purchase money, 
 which the surety paid, it was held that the surety alone might have 
 his action against the principals for the money thus paid." So where 
 two, jointly interested in a transaction, execute a bond with A as 
 surety, and B, at the request of one of the principals, pays the bond, 
 B has his actioii against the principals, but cannot recover against 
 the surety, as the request of t^e principals did not enure as his 
 request.' 
 
 § 322. The action lies by an endorsee against his endorser or the 
 maker for money paid on a judgment obtained against the former by 
 the holder of the note ; ^ but a joint action against the separate 
 endorsers will not lie.' If a joint action is brought, it must be, not 
 for money paid, but on the note itself. A prior endorser cannot 
 recover against a subsequent one even on verbal proof that the latter 
 agreed to pay the note if the maker did not." So the endorsee may 
 have an action for a payment made by him upon the note, although 
 it is not in full," and upon a second payment he may have another 
 
 ' 3 Jolin. 434. 8 id. 436. 8 East. 171. ' 5 John. 176. 
 
 » 10 John. 361. 2 John. Cas. 75. • 2 Wend. 481. 16 Barb. 177. 9 id. 506. 
 
 '5BOSW.579. 10 John. 361. Id. 404. 1 Bosw. 431.' 
 
 14 Ind. 311. * • 16 Barb. 177. 
 
 M 3 Mass. S97. 3 Esp. 478. 2 Story "1 Bosw. 431. 
 
 on Cent. § 880. "30 John. 367. 3 Wend. 369. 3 Barb. 
 
 " 42 Barb. 368. 634. 
 
 ° 5 Greenl. 504. 
 
MONEY PAID. 171 
 
 action.* But -where two persons make and exchange notes, neithor 
 Can maintain an action against the other for money paid on his own 
 note.* 
 
 § 323. If a contract, within the statute of frauds, be perfornied 
 wholly or partly by one party, and the other refuses to perform it on 
 his part, the action may be maintained by the party performing, to 
 recover the money he has expended in the execution of the contract 
 on his part ; ' but if he who has performed in part breaks the agree- 
 ment, for which breach it is rescinded, he cannot recover what he 
 has paid.* ' 
 
 § 324. It also lies where one of several persons pays a judgment 
 or other debt against them in an action upon contract for a contribu- 
 tion against each of the others ; but not if the recovery was for a 
 tort? But it was held, that where the recovery was for an injury 
 sustained by the negligence of the defendants' servants, neither party 
 being present, that an action for contribution would lie.^ If, how- 
 ever, in the former case there was an agreement between these per- 
 sons prior to or contemporaneous with the creation of the obligation, 
 by which it was agreed that one should be indemnified against loss, 
 he cannot be made by the other to contribute." If one is discharged 
 from liability, as by a bankrupt discharge, his liability to make con- 
 tribution ceases.* It makes no diflference in the liability that the 
 sureties become so without any communication with each other.' 
 The proportion of each one's contribution is calculated according to 
 the whole number of sureties, so that if one is insolvent, the others 
 contribute their own share only, and do not have to make up that of 
 the insolvent.^" 
 
 § 325. One joint contractor who pays money for another on a mere 
 equitable claim capable of being enforced only in a court of equity, 
 may maintain the action against his co-contractor," and where seve- 
 ral are liable for work done, and a payment is made to- the creditor 
 by a third person at the request of one of the debtors, the action 
 lies against all.*' So where several persons subscribed money for 
 running a stage coach, and appointed an agent to carry out their 
 plan, who advanced his money for the purpose, it was held that he 
 
 ' 6 Wend. 384. ' 2 Kern. 463. 
 
 * 3 Deri. 187. ' , ' 3 Kern. 59. See 36 lU. 50. 
 » 5 Mass. 133. 6 Seld. 333 and refe. ° 3 Seld. 33. 
 
 * 43 Barb. 58. '° 3 Story on Con. § 885. 
 
 " 8 Term, 186. ' 3 John. Oh. 131. 1 Bibb, " 6 Tannt. 289. 1 Marsh. 603. 
 503. 33 Barb. 354. 20 Cal. 130. " 11 Wend. 87. 3 Bosw. 516. 
 
 * 3 Car. & P. 417. 
 
'1T2 OF CONTEACTS. 
 
 might maintain an action against a subscriber for the amount of liis 
 subscription.^ But if one of two joint agents is imposed upon, and 
 in consequence pays money to a wrong person, and 4s afterward 
 obliged to pay it over again to the person entitled to receive it, he 
 cannot recover from his co-agent his share of the money paid.' 
 
 § 326. If one of two joint contractors, upon a breach by them of 
 their engagement, without the consent of the other, agrees with their 
 creditor to submit the amount of damages to arbitration, and then 
 pays the award, he may recover from the other contractor his share 
 of the payment so made.* 
 
 § 321. Where a wharfinger received goods consigned to A, and B 
 by mistake, supposing them his own, takes them and converts them 
 to his own use, in consequence whereof the wharfinger pays the value 
 of the goods to A, it was held that an action for money paid would 
 not lie against B ; that it should have been for the conversion.* But 
 in a subsequent case, where a carrier, by mistake, delivered to B 
 goods consigned to and belonging to A, and B appropriated the 
 goods, on the carrier paying A their value, it was held he might 
 maintain his action against B.^ 
 
 § 328. The action lies by a stranger against the defendant for 
 money paid for necessaries furnished to, or support necessarily pro- 
 vided for one whom the defendant is under a legal obligation to 
 maintain.^ Or where the defendant goes abroad, leaving a wife who dies 
 m his absence, and a third person voluntarily pays the expenses of her 
 funeral, suitable to her husband's rank and fortune, though without 
 his knowledge or assent.' 
 
 § 329. "Where money is paid for defendant at his request, it is no 
 defense to the action that the defendant lost the benefit of the pay- 
 ment in consequence of the plaintiff withholding the evidence of it 
 until he had been indemnified by the defendant, who refused to pay 
 him.* 
 
 § 380. The action will not lie for money paid on an illegal trans- 
 action ;' and in all cases of partnership in such transactions, neither 
 partner can recover back money paid for the other, unless he can sus- 
 
 ' 5 Pick. 338. ' 1 H. Bl. 90. 3 Camp. 398. 1 J. Scott 
 
 = Chit on Cont. 181. (10 C. B.) 778.- 13 id. 344. 1 Daly, 314. 
 '4 Moore, 340. ^ » 7 Mass. 368. 
 
 * 4 Camp. 81. ' 4 Taunt. 165. 3 id. 6. 3 Bam. & Aid. 
 
 ' 4 Taunt. 189. Approved 9 Barb. 477, 179. 3 Bos. & Pul. 371. CUt. on Con. 
 
 481. 1^3. 4 Coms. 449. 38 Conn. 455. 
 ' 5 Wend. 558. ' 
 
MONEY LENT. 1Y3 
 
 tain his action without any aid from the illegal transaction.^ So, 
 money advanced by one to another with a knowledge and intent that 
 it is to be applied in furtherance of an illegal purpose, cannot, after 
 it is so applied, be recovered.* If one person connives with another 
 to receive from him money belonging to a third person, he is liable 
 to the owner in this action.' Mere knowledge that the money 
 advanced is to be used for an illegal purpose is no defense ; it must 
 be intended to be so used.* 
 
 [§ 330a.] There is a class of cases where h person who has laid out 
 money for a particular object is allowed to recover it in an action for 
 money paid, from one who has prevented the enjoyment or accom- 
 plishment of the object. As where the plaintiff had hired a room 
 for a public meeting, and paid for its use, and the defendants, with 
 the design of preventing the meeting, took possession of the room 
 and passed resolntions opposed to the plaintiff's views, whereby the 
 plaintiff was unable to hold the meeting proposed.^ 
 
 [§ 3305.] Many of the principles applicable to cases of money paid, 
 as well as many of the decisions relative thereto, apply equally to 
 cases for money had and received. In the preceding sections under 
 that head we have grouped many of them, and those sections should 
 be referred to for principles and authorities under both of these 
 heads. 
 
 § 331. VJ. Foe money lent. In order to maintain this action 
 there must be an actual loaning of money or its e^uvoalent. A loan 
 of stock in the public funds will not sustain an allegation in a com- 
 plaint for money lent,' unless, possibly, the person receiving it has 
 paid a debt with it.'' The money may be advanced, either to the 
 defendant or to another person at the defendant's request, and on 
 his promise to pay it;* in either case, it is a loan to the defendant.* 
 "Where money is advanced by a parent to his child, the presumption 
 is that it is a gift, and not a loan.^" Foreign coin passing as money 
 is regarded as lawful money for the purposes of this action, and 
 proof of its payment will sustain a complaint for the loan of lawful 
 money." A loan by one person to another is not to be inferred 
 
 •3 Taunt. 11. 2 Marsh. 543. 7 Taunt. ' llJohn. 464, 471. 
 
 246. 22 Barb. 83. 35 id. 236. « 1 Burr. 371. 3 W. Bl. 873. 
 
 » 2 Stark. Ev. (3d Am. ed.) 104, 105. " 1 Vent. 311. 2 id. 36. 
 
 » 9 Cowen, 320. 17 Barb. 15. " 4 Bam. & Cress. 71. 4 Pick. 31. See 
 
 '4 Kern. 162. 33 Pa. 85. 32 id. 486. 8 Ind. 121. 18 
 
 • 10 Abbott, 233. 111. 167. 
 
 '5 Burr. 3589. 3 "W. Bl. 684 " 5 Taunt. 228. 1 Marsli. 33. 
 
174: OF CONTEACTS. 
 
 from the bare fact of a delivery of money, though flight facts may 
 raise the presumption.^ It will be inferred to be either a payment 
 or a loan, rather than as held in trust for the payor." 
 
 § 332. A loan may be presumed in some cases, where there is no 
 direct evidence of the payment of money. Thus, an instrument in 
 the following form, " I. G. U. £400," and signed by the defendant, 
 although neither a promissory note or receipt, was received as evi- 
 dence of money lent ; ^ and in another case, the action was sustained 
 on an account stated.* S*, where it was proved that defendant gave 
 his promissory note to the plaintiff which was lost.^ But an inslru- 
 ment in the following terms : " Nine months after the date hereof I pro- 
 mise to pay, &c., provided D. M. shall not return to England, or his 
 death be duly certified," is no evidence of a loan ; nor are the words, 
 " value received with interest," in an instrument.* 
 
 § 333. "Where the money loaned is secured by a pledge, it may be 
 recovered in an action for money lent, unless there be an express 
 agreement to stand by the pledge only.' Some of the English chan- 
 cery cases have held that as every mortgage implied a personal debt, 
 the action might be maintained against the mortgagor, although there 
 were neither a bond nor a covenant for payment of the mortgage 
 money.' A contrary rule, however, was held at law ; and it is well 
 established that, in the absence of a covenant to pay, express or 
 implied, no action lies upon a real or chattel mortgage, and the mort- 
 gagee is confined to the property alone from which to make his 
 debt.' In New York, by express statute, this rule is adopted in 
 regard to mortgages on real estate.'" 
 
 [§ 333a.] Whenever money is lent for the express purpose of ena- 
 bling the borrower to do some act prohibited by law, such as playing 
 at a prohibited game, the lender cannot recover it back in an action 
 for money lent." Mere knowledge of the illegal purpose is no 
 defense. It must be a part of the contract that it shall be so used, 
 or the lender must do some act beyond making |;he loan in aid of the 
 unlawful design, and with knowledge thereof." 
 
 ' 1 Starkie,385. 4Demo,108. 1 Corns. 377. ° 3 P. Wms. 360, 361. 3 Atk. 424. 
 
 »4 Nevada, 280. • Cro. Jac. 281. 2 Mod. 86. 6 Blackf. 
 
 n Dowl. & Byl. 8. .1 3M[an. & 6.46. 162. 7 Watts, 860. 2 Mumf. 337. 10 
 
 12 Ad. & E. 641. John. 57. 3 Corns. 264. 14 Barb. 242. 
 
 * 4 Car. & Payne, 824. 11 Mass. 26, 34. 4 Cal. 294. 
 •IHayw. 420. '» 1 R. S. 738, §§ 189, 140. 3 id. (Banks' 
 
 • 1 Tyr. 21. 1 C. & J. 163. 5th ed.) pp. 29, 30, §§ 159, 160. 
 '2Str.919. See however the references " 3 Mees. «& W. 434. 1 Horn. & H. 146. 
 
 in the next two notes. " 4 Kern. 162. 
 
USE AST) OCCUPATION OF EEAL ESTATE. 1Y5 
 
 § 334. VII. Foe use and occupation of lauds, houses, rooms or 
 other real property. A statute of New York provides that a "land- 
 lord may recover in an action on the case, a reasonable satisfaction 
 for the use and occupation of any lands or tenements by any person 
 under any agreement not made by deed ; and if a;iy parol demise or 
 other agreement not being by deed (i. e. under seal), by which a cer- 
 tain rent is reserved shall appear in evidence on the trial of any such 
 action, the plaintiff shall not on that account be debarred from a 
 recovery, but make use thereof as evidence of^the amount of the 
 damages to be recovered."^ This action on the case is abrogated by 
 the Code of Procedure ; but all rights of action secured by the exist- 
 ing laws may be prosecuted by " civil action." * 
 
 § 335. The action is founded upon contract, and unless there is a 
 contract, express or implied, between the parties, it cannot be main- 
 tained.' There must be a lease or evidence showing the relation of 
 landlord and tenant ;* and therefore when the defendant enters on the 
 premises under an agreement to purchase, the action will not lie.^ 
 But if the agreement is by parol, and therefore void by the statute 
 of frauds, and the purchaser enters into possession, and remains for 
 a year, the action will lie against him.^ But wherever the defendant 
 occupies by permission of the plaintiff, whether there be any stipu- 
 lation as to the rent or not, the action lies to recover the reasonable 
 compensation implied by law.'' And in such a case the defendant will 
 not be permitted to question the plaintiff's title.' If the occupation 
 was not by the landlord's permission, his remedy is not for the use, 
 but for the wrong.' If a void lease is executed, and possession is not 
 taken under it, no action can be maintained.^" In the absence of any 
 especial agreement, the rent is not due till the expiration of the 
 term.''' 
 
 § 336. "Where the defendant occupies under a lease or permission 
 
 "IB. S. 748, §36. 3id.(Baiiks'5tlied.) 
 37, § 30. 
 
 " Code, § 468. 
 
 ' 1 Term R. 387. Chitty on Con. 107; 
 6 John. 46. 25 Barb. 343. 1 Edm. 8el. 
 Cases, 333. 5 Cal. 332. 6 Ind. 413^ 23 
 id. 114. 15111.61. 16 id. 34. 
 
 * 7 Har. & John. 251. 13 John. 489. 
 9 Minn. 190. 
 
 '6 John. 46. 13 idi 489. 31 Barb. 386. 
 30 id. 509. 13 Iowa, 191. 14 id. 537. 10 
 Ind. 339. 16 111. 36. Id. 34. Id. 145. 6 
 Ind. 412. 17 id. 509. 
 
 " 25 Barb. 243. 
 
 3 Wend. 319 
 
 . 3 Mich. 
 
 566. 
 
 
 
 '39 Barb. 171. 
 
 35 id. 343. 
 
 13 Iowa, 
 
 191. 16IU.106. 
 
 
 
 •15 N. T. R. 327 and refs. 
 
 30 How. 
 
 Pr. B. 129 and refs.. 5 Seld. 
 
 45. Infra, 
 
 §339. 32111.151 
 
 . 33 id. 453. 
 
 3 Greene, 
 
 Iowa, 502. 
 
 
 
 » 1 Bsp. Dig. (Gould's ed.) 56 to 63. 6 
 
 CaJ. 333. 
 
 
 
 ■» 33 Barb. 143. 
 
 
 
 » 37 Mo. 138. 
 
 
 
176 
 
 OF COIfTEACTS. 
 
 from the landlord, although he may not be the immediate lessee, but 
 may hold as his assignee, the law implies" a contract from him to pay 
 the landlord for the use and occupation of the premises. Thus, if A 
 agree to let .lands to B, and B permits C to occupy them, A may 
 recover against C fgr their use.^ An assignee for the benefit of credi- 
 tors who occupies them, is liable for rent until he surrenders to the 
 landlord.** His entry, however, will not make him liable if it is 
 merely to take possession of the assigned goods, without any act 
 manifesting an intent to take possession of the term.' If, however, 
 the premises are sublet only, the landlord cannot recover against 
 under-tenant.* An assignee is liable only till he himself assigns, or 
 as long as he is in possession.' If he is assignee of a part of the 
 premises, he pays his share only of the rent.* 
 
 [§ 336a.] If the landlord sells the land, or assigns the lease and 
 rents to become due, the assignee has generally the same rights as the 
 original landlord.' The same result follows in case of the landlord's 
 death. Those who succeed him have the rents.^ If any rent is due 
 at his decease, it goes to his representatives ; if not then due it passes 
 as real estate to his heirs, or as devised by his will.^ 
 
 § 337. The action lies where there is a sealed agreement to give a 
 lease, and the defendant enters and occupies. Here the tenancy is 
 not by the deed, for that is only executory and a parol demise is 
 implied. 
 
 § 338. It also lies where a tenant holds over his term, the law 
 implying a renovation of the contract for another year at the same 
 price.^" And as the tenancy in some cases will continue until after a 
 notice by one of the parties to the other, a brief synopsis of the rules 
 in relation to its termination is here given. 
 
 § 339. "When a lease is made providing for an annual rent, whether 
 payable yearly or quarterly, but without limit to the period of hold- 
 ing, it is called a general letting, and the holding a. tenomcy from 
 
 '4 Corns. 126. 20 Barb. 369. 31 id. '14 Barb. 654 31 id. 646. 3 "Wend. 
 
 646. 6 Bosw. 612. 30 N. Y. 453. 15 id. 507. 6 Duer, 494. 4 Corns. 126.^ 2 Hill, 
 
 374. Bee 43 Barb. 514. 18 id. 608. Supra, 374. (See as to tb,e rule in 111. 30 Dl. ioi ! 
 
 § 149. 4 Mich. 106. 7 Cal. 450. 33 id. 31 id. 303). 1 Iowa, 111. 
 
 337. » 31 N. T. 380. 3 E. S. (Banks' 5th ed.) 
 
 ' 3 Bosw. 808. 8 id. 135. See also 31 36, § 15. See 3 Cal. 196. 
 
 How. Pr. R. 383. 1 Hilton, 196. Id. 447. " 3 Bouv. Inst. 303. 3 Kent, 464. 3 R 
 
 ' 8 Bosw. 14C. S. 83, § 6. 3 id. (Banks' 5th ed.) 169. 
 
 * 3 Corns. 386. 1 Hilton, 154. Id. 196. "IS John. 240. 15 id. 505. 1 Daly, 419. 
 
 3 id. 311. lCowen,349. lbenio,113. Infra, §340 
 
 ' 15 Cal. 387. 1 Hilton, 447. 28 111. 174. 
 
 " 2 Barb. 643. 
 
USE AND OCCUPATION 01" EEAL ESTATE. 177 
 
 yeaT to year. This tenancy exists also where a tenant, either by the 
 express or the implied permission of his landlord, continues to occupy 
 lands after the term for which they were leased has expired.'- But 
 the holding over, in such a case, must be continued for such a length 
 of time after the expiration of the term, as to authorize the implica- 
 tion of assent on the part of the landlord to such continuance.''' In 
 either of these cases, under the statute of New York, neither party 
 can terminate the lease but by giving notice of the intention to the 
 other at least one month before the end of the current year ; ^ and if 
 no notice is given, the landlord cannot compel the tenant to quit ; 
 and the tenant will be liable to the rent for the ensuing year^ unless 
 the landlord takes possession or lets it to another tenant.* Where 
 an action is brought for the rent against the tenant, whether by hold- 
 ing over or otherwise, he cannot defend himself on the ground that 
 the landlord had no title.' He may show that the one he had at the 
 commencement of the lease has been determined by the act of the 
 landlord, or by operation of law.° 
 
 § 340. The tenancy from year to year is upon the terms of the old 
 lease so far as they are applicable to a yearly holding, unless there 
 appears some agreement to the contrary.' But where the old rent 
 was merely a ground rent and the landlord is entitled to the buildings 
 erected by the tenant, the annual value of both the land and the 
 buildings is the measure of damages.^ Either party, however,, may 
 show an express agreement to vary the rent.* 
 
 § 341. If the -premises are let for an unlawful purpose, as for pros- 
 titution, or if the landlord has notice they are used for that purpose, 
 he cannot, in the one case, recover anything for the use of the pre- 
 mises, or in the other for anything after the notice.'" 
 
 § 342. In an action for use and occupation, it is not necessary to 
 prove an express contract with the tenant when he took possession, 
 to take the premises, an express reservation of rent, nor that the ten- 
 US John- 505. 4 Cowen, 349. 4 "Wend. • 30 Mis. (1 Geo.) 513. 8 Cal. 693. 21 
 337. 17 Cal. 80. id. 309. 15 N. T. 874. 9 Barb. 615. 33 
 
 m "Wend. 616. Wend. 131. 3 id. 507. 8Blackf.350. 31 
 
 n B. S. 745, §§ 7 to 9. 3 id. (Banks' 111. 165. 
 5th ed.) p. 35. 13 Barb. 481. 14 id. 353. ' § 338, supra. 
 38111.174. "15 John. 505. 
 
 * 13 John. 340, 397. 1 Denio, 113. ' 3 "Wend. 507. 31 Cal. 130. 
 
 = 13 John. 240. 5 Sekl. 45. 45 Barb. "° 1 Esp. 13. Eyan & Moody, 251. 20 
 56. Supra, § 335. 3 Cal. 515. Id. 558. Geo. 449. 2 R. S. 703, § 39. 3 id. (Banks' 
 7 Ind. 715. 5 "Wis. 379. 31 Md. 493. 33 5th ed.) 989, § 39. 
 id. 593. 31 111. 165. 14 Iowa, 397. 8 
 Minn. 435. 
 
 23 
 
178 OF COH'TEACTS. 
 
 ant has paid rent. Where the holding by permission is established, 
 the' right to a reasonable rent is implied ; and if it appears that a cer- 
 tain rent was reserved, that will govern the recovery, as in other cases 
 of express contracts.^ And although there be a written agreement 
 not under seal, upon which the premises were held, and the plaintiff 
 in his complaint omits to mention it, and simply alleges that the 
 defendant is indebted to him for the use and occupation of the pre- 
 mises, yet when the agieement is produced the rent reserved in it 
 will fix the measure of damages ; and the defendant is not at liberty 
 to give evidence of the value of the use, to reduce the recovery below 
 the stipulated rent.'' 
 
 [§ 34:2a.] If, for any reason, a tenant has forfeited his lease, that 
 forfeiture is not waived by the landlord's merely allowing the tenant 
 to hold over without notice to quit.' 
 
 § 343. "Where there was an agreement to lease a house for five 
 years, by leases to be executed, and the defendant entered and sub- 
 sequently refused to accept the lease, the court held that the plaintiff 
 migh,t bring his action for the occupation and not upon the a,gree- 
 ment- ; and that as It was not on that, the statute of frauds was no 
 bar to it. It also held that the taking of the key of the house by the 
 defendant without a continued occupation, was sufiicient to warrant 
 a recovery.* 
 
 § 344. At common law, and in the absence of stipulations to the 
 contrary, it is well settled that upon an express contract to pay rent 
 the loss of the premises by fire, or inundation, or external violence, 
 will not exempt the party from his obligation to pay the rent.^ It 
 has been questioned whether, if they are' destroyed intermediate the 
 execution of the lease and the commencement of the term, the claim 
 for rent is not gone.^ In ISTew York this is now in part changed by 
 a statute which provides that " The lessees or occupants of any build- 
 ing which shall, without any fault or neglect on their part, be 
 destroyed, or be so injured by the elements, or any other cause, as to 
 be untenantable and. unfit for occupancy, shall not be liable or bound 
 to pay rent to the lessors or owners thereof after such destruction or 
 injury, unless otherwise expressly provided by written agi-eement or 
 covenant, and the lessees or occupants may thereupon quit and sur- 
 
 '3 Gill & John. 336. 15N.Y.374 19 "4X6111,466. 3 Jolrn. 44. 5 Barb. 
 
 John. 305. 3 E. D. Smith, 364. Supra, 601. 6 Seld. 479. Taylor's L. & T. 18o! 
 
 g 335. 4 Cal. 339. 35 111. 109. 5 Har. 378. 4 
 
 '7 "Wend. 109. Taunt. 45. 4 Wis.' 468. 33Ind. 114. 
 
 ' 38 Cal. 151. • 6 Seld. 479, and cases cited, 487, 488 
 
 * 3 Wend. 319. 1 Hilton, 53. 
 
TJSE AND OCOTTPATION OF REAL ESTATE. 179 
 
 render possession of the leasehold premises, and of the land so leased 
 or occupied.'' 
 
 Independent, however, of this statute, if the premises are entirely- 
 destroyed, as where, not the ground itself and erections were rented, 
 but only rooms in an upper story were demised, and the entire build- 
 ing was burned, so that the lessee Could not occupy any of the pre- 
 mises leased to him, the lessee is discharged from his obligation to 
 pay after that destruction.' 
 
 The action will not lie against a tenant holding over where pro- 
 ceedings are instituted under the statute to evict him ; ^ nor where 
 the title is in dispute between the plaintiff and defendant, the courts 
 refusing in this manner to determine a question of title, the proper 
 remedy being by ejectment.* Nor where there has b^en no occupa- 
 tion by the defendant during the term for which the premises were 
 leased, the action in such a case being not for use and occupation, but 
 on the lease itself.' An actual manual occupation, however, is not 
 necessary. If the power to occupy is given by the landlord to the 
 tenant, he may recover, as where, though there was no actual 
 occupancy, the tenant had the key, and might have used the pre- 
 mises/ 
 
 It has been held that the above statute of New Tork applies only 
 where the injury or destruction occurs after the lessee's entry, and 
 not where it existed at the time of making the lease.' 
 
 [§ 3Ma.] An eviction is defined to be where there has been an 
 obstruction to the beneficial enjoyment of the premises, and a dimi- 
 nution of the consideration of the contract by the acts of the land- 
 lordj or with his permission, or by paramount title, although these 
 acts may not amount to a physical eviction,^ if they are so illegal 
 and monstrous as to be equivalent to it.' 
 
 Under this rule it is a sufl&cient eviction that the landlord uses 
 other parts of a house than those rented, as a house of prostitution, 
 making it the resort, day and night, of lewd women and men, by / 
 whom there is a great deal of indecent noise and disturbance.'"' That 
 the landlord tears down a partition which separated the entrance to 
 
 ' Sess. Laws 1860, ch. 345, p. 593, § 1. '1 Daly, 485. 39 How. Pr. E. 359. 
 = 36 N. Y. 498. 13 Mees. & W. 79, 3 «8 Cowen, 730. 1 Sand. 360. 85 Barb. 
 Ed. Ch. 315. 5 Ohio, 477. ' 533, 34 id. 178. 5 HiU, 53. 30 N. Y. 
 
 n Wend. 134. See 33 N. Y. 245. 383. 18 id. 381. 31 id. 514. 9Bosw.57. 
 
 * Woodf. Land. & T. 356. ' 6 Bosw. 653. 
 nDemo,37. 3 id. 84. 7 Barb. 20t "8Cowen, 737. 
 
 31 id. 345. 4 Corns. 217. 
 
 • 34 New York, 384. 
 
180 OJ CONTEAOTS. 
 
 the tenant's room from a low grogshop, compelling him to pass 
 throngli the latter;^ that the landlord and his family intentionally 
 disturbed the tenant's use and enjoyment of the premises by petty 
 but constant annoyances, seriously injurious to his business, as well 
 as destructive of the comfort of himself and family ;^ where the 
 landlord refuses to permit an under-tenant to occupy,^ or forbids him 
 to pay rent to the tenant ;* where dower is assigned in the premises 
 (which is an eviction to the extent of one-third thereof) : ^ So, there 
 is an eviction if a portion of premises are reserved, and the landlord 
 afterward rents that portion to a tenant to be used for purposes 
 which destroy the beneficial use of the other portion first leased.® 
 
 But it has been held that there is not eviction where other parts 
 of the house are used for purpose of prostitution without the land- 
 lord's letting for that pui-pose, or his connivance and consent ; '' 
 where the landlord's act is a mere trespass ; * where he somewhat 
 narrows the rooms on a claim that the true boundary required it, the 
 tenant remaining in possession ; ' where a third person lays claim to 
 the premises ; ^^ where there is a temporary nuisance which the ten- 
 ant might remove ; e. g., a noxious smell produced by dead rats ; " 
 where the letting allows the owner to make repairs, and necessary 
 ones are made, the landlord interfering with the possession for that 
 purpose only;" where party stairs are removed by the lawful 
 removal of the adjoining building ; ^* where a building had thereto- 
 fore beien used as a brothel, and tjie tenant was so annoyed by lewd 
 persons calling there that he removed therefrom ; " or where the 
 landlord retains possession of a small part of the premises for a very 
 short time, without any intent to keep the tenants out of possession.^' 
 
 [§ 3445.] If the tenant is evicted from the whole or any portion 
 of the premises by the landlord, the whole rent ceases from that time till 
 possession is restored ; ^® that then in arrear or due is not extinguished, 
 even if it is payable in advance ; " if the eviction is by a stranger 
 
 • 85 Barb, 523. " 35 "Wend. 669. 
 
 ' 1 Sand. 260. " 43 Baib. 582. 13 Ind. 475. - 
 
 ' 1 Hilton, 385. =» 1 Wis. 250. 
 
 * 25 111. 58V. » 1 Daly, 99. 
 
 ' 11 Ohio N. S. 120. '' 1 Daly, 311. 
 
 « 31 111. 479. "8Cowen,730, 731. 1 Kern. 216. 25 
 
 ' 4 Conls. 317. Wend. 445. 24 id. 76. 4 id. 423. 20 K. 
 »31N. T. 514. 31 Barb. 117. 1 Hil- T. 281. 21111.470. 24 id. 279. 
 
 ton, 149. " 3 Denio, 453. 4 Corns. 270. 3 E. D. 
 
 "IHow.Pr. K. 565. Smith, 166. 9 Bosw. 70. 1 id. ,171. 3 
 
 » 15 N. Y. 327. Hilton, 217. 
 
TTSE AND OCCUPATION OF EEAL ESTATE. 181 
 
 under a paramount title of the whole premises, the tenant is dis- 
 charged from the payment of rent from that time ; if the eviction is 
 from a part of the land only, the tenant is discharged for the pro- 
 portionate share of the rent : ^ So, if the tenant acquires the para- 
 mount title to the whole of the lands, it is a bar to all subsequently 
 accruing rent ; if to a part only, then to the proper share thereof? 
 If the tenant continues in possession, although there is a technical 
 eviction, he must pay rent in full.' If he is evicted by a wrong doer 
 he is still liable for rent to his landlord.* Although the term is sur- 
 rendered by the tenant, and accepted by the landlord, the previous 
 rents are not discharged.* 
 
 Although the question has never, or but seldom if at all, been pre- 
 sented to the courts, yet it is doubtless true that the eviction, though 
 partial only, may be of so essential a part of the premises as to justify 
 the tenant in leaving them entirely, and thereby discharging himself 
 for accruing rent under any circumstances. 
 
 [§ 3Mc.] There is no implied warranty that premises are tenanta- 
 ble,* nor are agreements implied that either party shall make 
 repairs.'' And yet it is held that if the tenant was ignorant of their 
 condition, while the landlord knew they were unfit for occupation, 
 and the tenant is compelled to quit them, no rent can be recovered.' 
 Also, that if it appears from the lease that the premises were to be 
 used for a particular purpose, a covenant will be implied that they 
 are suitable therefor.' 
 
 [§ 344^.] If the landlord agrees to make repairs, but does not, the 
 tenant may either recover his damages for the omission, or,. after 
 demanding that the lessor make them, and his failure, may make 
 them himself, and recover the expense thereof, even though they 
 exceed what it would have cost the landlord, had he employed his 
 own men." In making such repairs the tenant is not bound to use 
 the same materials as were originally used. He is not to ignore and 
 reject all improvements or new methods and materials. If he 
 employs a competent mechanic, and uses suitable materials, and the 
 work is seasonably and properly done, he is entitled to be reimbursed 
 
 ' 8 Cowen, 730. 39 Barb. 59, and refs. • 7 Hill, 83. 37 Barb. 313. 1 Hilton, 
 
 on pages 66 and 67. 31 HI. 470. 24 id. 491. 
 
 279. 1 Kern. 316. ' 24 Barb. 39. 4 Corns. 136. 3 Duer, 
 
 ''22 Wend. 171. 464. 3 Bosw. 137. 6 Cowen, 475. 4 B. 
 
 ' 20 K Y. 281. 6 Bosw. 653. D. Smith, 375. 1 Daly, 178. 23 Ind. 114. 
 
 *23Cal. 337. • « 29 How. Pr. E. 389. 
 
 » 4 Bosw. 193. ° 31 Barb! 345. 
 
 " 33 Barb. 401. 35 N. T. 369. 
 
182 OF CONTRACTS. 
 
 what lie has expended.^ He cannot recover, however, for the inter- 
 ruption to his business while the repairs were being made, whether 
 by himself or the lessor ; * he may recover damages sustained by the 
 loss of the use of those parts the landlord was bound to repair.^ In 
 case of eviction by paramount title, from a part of the premises, the 
 lessee cannot, in an action for the use, recoupe the value of the lease 
 over and above the rent, the loss of profits in business, or other spe- 
 cial damages.* If the tenant takes possession, the lessor's breach of 
 the agreement constitutes no defense for the rent reserved ; a recoup- 
 ment of the damages sustained is the only remedy .^ If a lease con- 
 tains a right of re-entry, a sub-tenant may, in order to protect his 
 possession, pay his rent to the original lessor.^ 
 
 [§ 344e.] While, as we have seen,' the action will not lie against a 
 tenant holding over^ where proceedings are instituted under the sta- 
 tute to evict him, in case there is no holding over, and the lessee is 
 dispossessed for non-payment of rent, the lessor may have this action 
 for use and occupation for the rent due prior to such removal.^ 
 
 VIII. Oh oonteacts aeisotg in the couese of an action befoee 
 A justice of the peace. These will be examined in connection with 
 the proceedings under which they arise. 
 
 § 345. IX. On bills of exchange and peomissoet notes. A bill 
 of exchange is an open letter from one person styled the drcuwer, to 
 another styled the dra/wee, requesting him to pay a certain sum to a 
 third person, styled ike payee, upon the drawer's account, at sight or 
 at some specified time. It is what in common language is called an 
 ordeTi or draft, for the payment of money. It may be made payable 
 to the payee simply, in which case it is not negotialjle, or to his order, 
 when it is negotiable by his endorsement, or to him or bearer, when 
 it is negotiable without endorsement. Its usual form is as follows : 
 
 Albany, June 1, 1868. 
 
 At sight (or " at three days from sight," or " ten days from date, 
 or "on the first of July next,") pat Hoeace Gr.' Peindle, (or, 
 " to the order of Horace G. Prmdle," or " or hea/r&r'^) fifty dollaes 
 AT THE Bank of Chenango, foe value eeoeived. Eichaed Roe. 
 
 To Me. John Doe, meechant, Noewich. 
 
 It is sufiBcient that the payee be so described that, though not 
 
 ' 33 Barb. 401. ' " 3 Seld. 528. 
 
 "43 Barb. 582. 4 E. D. Smith, 247. ' Supra, § 344. 
 
 ' 85 N. Y. 369. « 6 Hill, 507. 8 Denio, 453. 3 E. D 
 
 * 39,Barb. 59. Smith, 131. 
 
 ' 31 Barb. 345. 
 
BILLS OF EXCHANGE AND PE0MI8S0EY NOTES. 183 
 
 named, lie may easily be identified, and that at the time the instru- 
 ment is made.^ The omission of the name of the drawee will not 
 vitiate it. The acceptance supplies the defect, and is an admission 
 that he was the person intended.'' 
 
 § 346. Bills drawn in one state upon a person living in another or 
 in a foreign country, are denominated foreign bills ; and such as are 
 payable within the state where drawn, inland bills. Foreign biUs 
 are subject to certain rules which do not apply to inland bills, and 
 as they are usually for an amount beyond the jurisdiction of a jus- 
 tice's court, the subject of inland bills only is here examined. 
 
 § 34:7. If the bill is payable at sight, or on demand, and on 
 presentation to the drawee he accepts it, he is thenceforth styled the 
 acceptor / this acceptance, according to commercial law, where it is 
 not modified by special enactments, may be by parol.' The stat- 
 utes in various states have modified this rule, that in New York 
 requiring the acceptance to be in writing, and either on the bill 
 itself, or, if on another paper, that it be shown to some one who, on 
 the faith thereof, receives the bill for a valuable consideration, or that 
 it otherwise comes to his knowledge.* The holder, however, may 
 require the acceptance to be written on the bill itself, and may con- 
 eider a refusal to comply as a refusal to accept.' The certification of 
 a bill as good by the drawee, or the proper officer if drawn on a 
 bank, is equivalent to an acceptance.' If the bill is negotia- 
 ble, the payee upon endorsing it is called the endorser, and the 
 person to whom he then transfers it, the endorsee ; and such endor- 
 see may again endorse it and transfer it to still another person, 
 when he becomes an endorser, and his transferee the endorsee, and 
 so as often as it is subsequently endorsed. The hill when accepted, 
 is called an acceptcmce of the acceptor. 
 
 § 348. Any written order or request by one person to another to 
 pay a specified sum of money absolutely to any person, is a bill of 
 exchange ; and this whether the drawee have funds of the drawer in 
 his hands or not.'' It may be payable "in currency," for that is 
 money within the rule. But an order not payable in money, or 
 
 '16111.169. 8 C.B. (N. S.)581. 5th ed.) 68. 17 Wend. 508. 15 Abbott 
 
 ' 1 B. D. Smith, 1. Pr. 280. See 3 Bosw. 505. 
 
 'Edw.onBUls,409. 3Ind.438. 10 id. 'IRS. 768, §9. 3 id. (Banks' 5th ed.) 
 
 40. 13 Iowa, 32. 1 Wend. 522. 68. 5 Wend. 414. 7 Hill, 577. 12Cal.92. 
 
 * 1 R S. 768, §§ 6 and 7. 3 id. (Banks' '25 N. Y. 143. 
 
 ( 
 
 '5 Hill, 413. 7 id. 577. 31111.535. 
 
184: OF CONTEACTS. 
 
 payaWe from a particular fund, is not a bill of exchange within the 
 statute requiring a written acceptance.'' 
 
 A check is a bill of exchange payable to bearer and on demand, 
 and is governed by the same rules.^ It is usually in substantially the 
 following form : 
 
 Norwich, June 1, 1868. 
 Mr. JoKN Doe, 
 
 Pay James Jackson or bearer fifty dollars. 
 
 RlCHAED EoE. 
 
 If payable to a fictitious person, or to some special designation, as 
 " to the order of bills payable," it is, in effect, payable to bearer.' 
 
 An instrument in the following form, " N. will much oblige W. 
 by paying J. E. or order, £20,* was held a bill of exchange ; and in 
 another case, where the plaintiff held a note against L. and wrote 
 upon it, " L. M. please pay the above note and hold it against me on 
 settlement," and L. M. accepted it, the instrument was held a bill.® 
 Other instances where instruments have been held to be bills of 
 exchange, are cited in note,^ while still others where they are 
 held not to be, are cited in note'. All of the cases cannot be 
 cited. Those here given or referred to, show the general rule. 
 
 § 349. After the acceptance of a bill of exchange, it is very nearly 
 allied in character with a promissory note.' It thereby becomes the 
 acceptor's promise to pay the money ordered by it to the payee ; 
 and although the drawer's name be forged, it will be binding in favor 
 of an innocent payee or endorsee ; for the acceptor is presumed to 
 know the handwriting of the drawer, and if he mistake it it is his 
 own fault.^ 
 
 § 350. If an accepta;nee is written upon the bill, it may be done in 
 compliance with the statute by the drawee simply writing his name 
 across it. At common law, any words written upon it by the drawee 
 indicating that it had been presented, and not denying the request, 
 as " accepted" — " presented" — " seen," &c. were ;prima facie a .valid 
 acceptance." , ^ 
 
 •1 Hill, 583. 31111.535. '2 Sand. 338. 12Cal.93. 17 Ind. 009. 
 
 " 3 John. Cases, 5. 6 Cowen, 484. 31 1 Wend. 533. 
 
 Wend. 373. 35 id. 673. 6 Hill, 174. 2 ' 1 Cowen, 691. 15 Barb. 374. 14 id. 
 
 Seld. 417. 4 id. 190. 186. 1 Hill, 583. 19 Cal. 486. 31 LI. 
 
 = 3 Term E. 183, 381. 1 H. Black. 569. 535. 
 
 3 Duer, 131. » 33 Barb. 458. 33 111. 330. 
 
 *lEgp.R. 129. "IBinn. 37. 1 Hill, 387. 1 Corns. 113. 
 
 ' 1 Wend. 523. ' Ch. on Bills, 431. Edw. on id. 544. 
 
 " 3 Hill, 583. 
 
BILLS ,0F EXCHANGE AND PEOMISSOET NOTES. 185 
 
 § 351. An unconditional promise in meriting to accept a bill before 
 it is drawn, is in New York, by statute, deemed an actual acceptance 
 in favor of every person who, upon the faith thereof, shall have 
 received the bill for a valuable consideration ; and a drawee to whom 
 a bill is delivered for acceptance who destroys it, or refuses within 
 twenty-four hours after such delivery, or such other period as the 
 holder may allow to return it, accepted or non-accepted, is deemed 
 to have accepted it.* The promise, in writing, to accept must 
 be so definite as to identify and distinguish it from other bills.^ 
 A similar rule as to promises to accept prevails in other states.' An 
 authority to draw on one, even when made by a telegram, is an 
 unconditional promise to accept, within the statute.^ It is held in 
 California that a promis.e to pay a draft to be drawn (which promise 
 must be in writing), is in effect a promise to accept it when drawn.^ 
 
 § 352. If the drawee refuses to accept the bill in writing, but pro- 
 mise orally to pay it, the promise amounts to nothing, and will not 
 sustain an action., although he had the drawer's funds, and ought in 
 justice to have paid the bill.^ His acceptance, however, may be made 
 by his agent, and the agent may, when he determines to accept, 
 direct a clerk to write the acceptance for him and thus bind the prin- 
 cipal.'' Where a bill is accepted, but the acceptance is not dated, 
 the time of its acceptance may be shown by parol evidence. 
 
 § 353. A proTThissory note is a written promise to pay money. It, 
 and; also a bill may be written with a pencil as well as ink, and on 
 paper, parchment, cloth or other similar substance.^ Its form is usu- 
 ally substantially as follows : 
 
 ]!forwich, June 1, 1868. 
 
 $50. I PEOMisB TO PAT James Jackson (" ov Order" or, " or learer'^ 
 if it is to be made negotiable,) eiftt dollaes, (omitting the time of 
 payment, if payable immediately, and if payable at a future day, 
 inserting the day, as " on tJie Ji/rst of September next" or, " thirty 
 days after date") foe value eeceived. Eiohaed Roe. 
 
 The signature may be by initials instead of the full name, or the 
 maker (and acceptor, endorser, &c. in the case of bills) may use 
 
 'IE. a 768,769, §§8,11. 3 id. (Banks' '39Cal. 597. 
 
 5tlied.)68. 5 Wend. 414 17 id. 508. 15 » 5 Hill, 413. 7 id. 577. 1 Sand. 14. 5 
 
 Abbott, 280. Seld. 435. See 3 Bosw. 505 ; also last 
 
 = 3 Denio, 553. 5 Hill, 432. 40 Barb, sfection. 
 
 368. ' 1 Hill, 501. 
 
 '4 Mich. 450. In Illinois the promise «5 Bam. & 0. 234. 14 John. 484. 24 
 
 may be vei-bal. 34 111. 313. 35 id. 424. "Wend. 531. Edw. on Bills, 149. Story 
 
 * 5 Hill, 482. 39 N. T. 216. on Prom. Notes, § 11. 6 Hill, 443. 
 24' . 
 
186 OF CONTEACTS. 
 
 figures'or a mark, or any designation or name, in lieu of his proper 
 name,^ or it may be signed 15y another person for him by his author- 
 ity.^ If the signature is by a mark, a subscribing witness is not 
 essential.* 
 
 It is not necessary that any particular form should be used. Any 
 words which import an absolute engagement to pay are sufficient. 
 As a certificate of deposit, or a common due-bill, in these words : 
 " Due S. or lea/rer, $10 ;" " due A. B. $325, payable on demand ;" 
 " due B. $1, on settlement ;" or a promise to deliver money ; that the 
 payee shall reoei/ve nhoney / or to he accov/ntahle or responsible for 
 money. ^ An instrument in these words, " borrowed of J. S. i^SO, 
 which I promise never to pay," was held a good note, the word never 
 being rejected as surplusage.' An absolute guaranty on a note pay- 
 able to S. or bearer, " of the payment and collection" of the note, is 
 a promissory note.^ So is an instrument in these words : " Six 
 months from date I guaranty to pay A. or his order, $180, without 
 interest." ' Other instances where .instruments haye been held to be 
 promissory notes or negotiable paper, are cited in note.* Still 
 others where they are held not to be are cited in note.' But, 
 these are far from exhausting the cases on this subject. They are 
 sufficient to illustrate what are or are not promissory notes. Where, 
 after a non-negotiable note was signed by two persons, a third per- 
 son wrote his name across the back, and it was thereupon transferred 
 to the payee, who paid full value for it, the note having in fact been 
 made to obtain such consideration, it was held that the third person 
 was liable as joint maker.^" 
 
 § 354. It is not necessary that a promissory note should be dated, 
 although it is safe to write it with one." If it be not dated, all com- 
 putations of time in relation to it will be made from the day it was 
 
 ' 6 "W-end. 443. 1 Denio, 471. 6 HUl, id. 146. 15 Barb. 374. 24 id. 68. 5 Duer, 
 
 443. 11 Wis. 134. 307. 14 John. 238. 1 id. 243. 2 Hilton, 
 
 ="31111.588. 526. 19 111.390.- 39 id. 101, 114. Slid. 
 
 ''38Ind. 19. 306. 32 id. 260. 6 Mich. 326. 9 id. 341. 
 
 '5 John. 237. 2Cowen,536. 10 Wend., 1 Iowa, 488. 10 Wis. 34. 2 Hill, 395. 
 
 675. 1 Hill, 256. 29 Barb. 180. 4 Cal. 3 Corns. 19. 3 Hilton, 536. 21 Ind. 433. 23 
 
 37. 39 id. 505. 35 id. 118. See 17 Wis. id. 88. 1 Kansas, 28. 
 
 223. 18 id. 481. "16 Barb. 643. 15 id. 374. 4 Denio, 
 
 'Chitty on Bills, 149tol51. Story on 159. 5 id. 444. 7 Ind. 363. 8 id. 108. 
 
 Prom. Notes, § 13. " 39 Barb. 43. 15 Ohio K. S. 15. 9 
 
 ' 24 Weud. 403. See 4 Sand. 31. Texas, 615. 20 Mo. 571. 
 
 ' 3 Barb. 374. " Story on Prom. Notes, § 45. Edw. on 
 
 '15N.Y.337. 23 id. 114. 35 id. 496. 39 Bills, 150. 
 
BILLS OF EXCHANGE AND PEOMISSOEY NOTES. 18Y 
 
 issued, as if payable two months from date, the court will intend two 
 months from the day it was made.^ 
 
 § 365. In promissory notes, the signer is called the maker, the per- 
 son to whom it is made payable the payee, and when he endorses it 
 he becomes the endorser, and the person to whom it is endorsed the 
 endorsee, who, by endorsing it, may become an endorser, as in the 
 case of bills. The relative rights and obligations of the parties to 
 promissory notes and bills after acceptance, are very nearly similar, 
 the acceptor and maker standing in the same relation to the payee - 
 and endorsers ; the drawer, in the case of an acceptance, standing in 
 the place of an endorser prior to the payee. •- 
 
 § 356. An essential quality of both promissory notes and bills of 
 exchange at common law is, that they be payable in money, and not 
 upon any contingency, or from any particular fund.^ If they are 
 payable in goods, or anything but money ,° or " provided the terms 
 mentioned in certain letters be complied with," or upon any other 
 contingency,* or from any particular fund, as " from money in J. B.'s 
 hands," or " from the freight of the Veale galley E. C." they are mere 
 contracts, binding on the maker, but not negotiable as promissory 
 notes or bills." They must also be for a sum certain.* The decisions 
 conflict whether making them payable with current rate of exchange 
 is or not a violation of this rule.' In some of the states, however, 
 . notes may be payable in whole or in part, in chattels, especially if 
 payable to bearer.' 
 
 If, in addition to the promise to pay money, the instrument con- 
 tains stipulations to do other things, it is not a note.® If payable in 
 money, except at the holder's option," or when the maker is " able," 
 he then being of sufficient pecuniary resources to pay it, it is a note." 
 It has been held, however, that a note or bill may be payable in 
 
 ' 4 Bam. Cress. 908. 6 Maule & Selw. 1 id. 591. 6 Mod. 365. Edw. on Bills, 
 
 73. 2 Chit. 300. 143. Stoiy on Pr. Notes, § 35. 
 
 n Daly, 517. 6 Cowen, 108. 5 Duer, "10 Wis. 34. Edw. on BiUs, 139, 110. 
 
 207. 23 N. Y. 114. 37 Barb. 181. 10 Story on Prom. Notes, § 30, &c. See 7 
 
 Cal. 373. 6 Micli. 336. 4 Denio, 159. 17 Iowa, 531. 
 Wis. 139. '34 m. 168. 29 id. 101. Id. 114. 10 
 
 '6 Cowen, 108. Edw. on Bills, 134, &c. Wis. 34. 9 Micli. 241. 15 id. 286. 
 Stoiy on Prom. Notes, § 17. ° 15 Ind. 397. 3 Greene, 334. 9 Iowa, 
 
 ' 15 N. Y. 435. 35 Barb. 179. 1 Hil- 471. 11 id. 85. 37 111. 338. 38 id. 397. 
 ton,, 310. 3 id. 536. 6 Wis. 309. 15 » 6 Cowen, 108.' 16 Barb. 643. Edw. 
 
 Mass. 387. Edw. on Bills, 134, 139, 141. on Bills, 138. See 7 Iowa, 145. 
 Story on Prom. Notes, §§ 33, 37, 33, &c. ■" 33 N. Y. 114. 36 Barb. 307. See 1 
 
 5 Denio, 444. 19 Ind. 19. Cowen, 693. 
 
 '16 Ark. 594. 10 Cal. 373. 3Str.l311. "6 Ind. 406. See 11 Texas, 573. 
 
188 OF CONTEACTS. 
 
 " York state bills or speeie," or in " bank notes current in New 
 York," they being regarded as money.* But not in " bills current 
 in Pennsylvania," or in " Canada money," or other foreign bills.^ 
 And an order drawn by A requesting C to credit B or bearer $30, 
 and he would pay it, is neither a note or bill, as it does not request 
 C to pay money, but only to give credit.' One case holds that an 
 instrument by which the maker promises to pay when he can make 
 4t convenient, with interest till paid, is in effect a promise to pay in 
 a reasonable time, which makes it a good promissory note.* 
 
 § 357. "Where, however, a direction is contained in a bill for the 
 drawee to reimburse himself from a particular fund, without making 
 the payment depend upon the fund, the bill is valid and negotiable ;' 
 as where it was drawn upon the treasurer of Brooklyn, directing him 
 to " pay A. L. or order, $1,500 for award 'Ho. 7, and charge to Bed- ' 
 ford road assessment ;" ^ or requesting the drawee to pay to the order 
 of A. a certain sum, " as my quarterly half-pay to be due from the 
 24:th June, to the 24th September next, by advance ;" ' or where a 
 city warrant was made payable " out of any funds belonging to the 
 city, not before specially appropriated," and " chargeable to general 
 city fund."' Here the sum is payable upon no contingency. So 
 where it is "payable out of and from my separate property.' If, 
 however, the warrant is payable only from a certain fund, it is not a 
 bill or note."'" It is also held in IsTew York, that if the instrument is 
 on its face valid as a note or bill, there may be an endorsement upon 
 it specifying a condition upon or a fund from which it is to be paid, 
 which endorsement will form no part of the instrument, but merely 
 operate as a notice to any one to whom it is negotiated." It is held 
 otherwise in England.''^ 
 
 § 358. The time of payment may depend upon the happening of a 
 contingency, as upon the death of a particular person, or any like 
 event, which will necessarily take place at a future day, or " at such 
 
 » 9 Jolin. 130. 19 id. 144. 11 Mich. ' 2 Stenge, 763. 
 
 501. 9Ind. 135. «23N. Y. 570. 
 
 ' 5 Cowen, 186. 33 Wend. 71. Edw. on » 48 Barb. 438. 
 
 Bills, 134, &c. . Story on Pr. Notes, §§ 17, '» 1 McAU. C. C. Cal. 175. 
 
 18 and 19. 1 Kansas, 38. "8 John. 485. 15 "Wend. 363. See 14 
 
 = 8 Halst. 363. How. Pr. R. 489. 
 
 * 10 Ohio N. 8. 88. "Edw. on BUls, 145. Story on Pr. 
 
 •Edw. on Bills, 143. Story on Pr. Notes, § 3a 4 Camp. 137. 4 Maule & 
 
 Notes, § 36. Selw. 35. 3 Camp. 305. 
 
 ° 4 Hill, 363. 
 
BILLS or EXCHANGE AND PEOMISSOET NOTES. 189 
 
 time and place as the payee should require."^ It may also be 
 limited in the alternative, as to pay on the first of May next, or when 
 a certain house should be completed.' But this decision is ques- 
 tioned by Mr. Sand in his second edition of the Massachusetts 
 reports, and is overruled in New York." A similar English deci- 
 sion, that an instrument payable two months, after, or when a ship is 
 paid oS, is a promissory note, is also questioned.'' If no time of pay- 
 ment is mentioned, it is due immediately.^ And this thou^ it con- 
 tains a provision for the payment of interest after a certain event." 
 An instrument which provides that the payment is not to be expected 
 until certain property of the maker is " sold for a fair price," is not 
 a note.' 
 
 § 339. Promissory notes and bills should specify by whom and to 
 whom they are payable. If payable " by A. or B." or " to A. or B." 
 they are not valid as notes or bills, although if they are, expressed to 
 be "for value received," they are good as contracts, and will warrant 
 a recovery in an action for money had and received.' Where there 
 are two persons having the name of either of the parties to the note 
 or bill, it is well to distinguish which is meant, by his place of resi- 
 dence, or some addition, as "senior," "junior," "second," &c. 
 Where there is a father and son of the same name, a note or biU 
 payable to the name, is prima facie payable to the father.' But 
 if the son held the instrument he might recover upon it in his 
 own name." Indeed, the presumption is always that the holder of 
 negotiable paper is the owner thereof.^^ AUter as to that which is 
 non-negotiable.^' If the paper is payable to persons, officers of an 
 incorporated company, or to their successor's in office, it is a promis- 
 sory note, and may be prosecuted by those persons, though others 
 have succeeded them.^' So a promise in writing " to pay steamboat 
 Juda and owners, or order," is a promissory note." 
 
 ' Bdw. on BUls, 141. Story on Pr. ' 33 Wis. 415. 
 
 Notes, §37. Chitty on Bills, 156. 9 John. »4 Bam. & Aid. 679. 3 id. 417. 4 
 
 217. 14 id. 283. Willes, 386. 3 Str. Wend. 575. Story on Pr. Notes, §§ 38, 
 
 1317. 1 Burr. 326. £5 Barb. 179. 15 N. 34, 35. Edw. on Bills, 135, 131, 133, 134 
 
 435. 16 111. 169. 19 id. 81. 
 
 '7 Mass. 340. » Chitty on Bills, 178. Edw. on id. 135. 
 
 » 35 Barb. 1C3. '» 1 Stark, 106 (85). 
 
 <Edw. on Bills, 143. Story on Pr. "7Ind.556. 4 id. 523. 3 Greene, Iowa, 
 
 Notes, § 37. 108. 3 John. Cases, 5. Id. S59. 
 
 '8 John. 189. Id. 374. 15 Wend. 308. >=lMinn. 96. / 
 
 SDenio, 12. 29 Barb. 180. 11 Ohio N. ^6 Taunt. 325. 2 Seld. 124. 
 
 S. 601. " 8 Ind. 18. 
 
 » 17 Cal. 623. 11 Ohio N. S. 601. 
 
190 OF C0NTEACT8. 
 
 § 360. They may be drawn payable to bearer generally witbont 
 the mention of any person as payee, in wbicb case they can be nego- 
 tiated by simple delivery.^ They may also be drawn payable to the 
 order of a fictitious person, or to the order of the maker, in which 
 cases, when negotiated by the maker, they have the same effect as if 
 made payable to bearer.^ The statutes in some of the states have 
 practically adopted this rule.' Notes not payable to bearer must be 
 endorsed by the payee, or sued in his name, or that of his legal repre- 
 sentative (except in those states where a different rule is established.)* 
 If the name of the payee be left blank, the holder may insert his 
 own as payee,^ but if the promise is not to pay any one, but simply 
 "I promise to pay $500 on demand, value received," it is mere waste 
 paper.^ If drawn in the singular number, as if a note be drawn, " I 
 promise to pay," and signed by two or more persons, it is regarded 
 as made by them jointly and severally, and the hoMer may bring his 
 action against all or any one of them.'' If payable to one by a 
 wrong name, he may bring his action in his right name and show 
 the mistake.^ If several persons sign a paper by which they jointly 
 and severally agree to pay to a person named or bearer, the sums 
 set opposite their name^, expressing upon what consideration, this 
 is a promissory note, each being jointly and severally liable for the whole 
 amount subscribed, the only effect of the subdivision of the amounts 
 being to regulate the rights of the parties as between themselves.' 
 
 § 361. "When drawn payable to the order of a particular person, 
 they can in the first instance be negotiated only by his endorsement. 
 This may be in Mamk, in full, restrictive or qualified. It is in blank 
 when the payee simply writes his name upon the back of the bill or 
 note. It is then transferable by delivery, and any person in whose 
 possession it is, is presumed to be its owner. It is in full, or special, 
 when the endorser directs by his endorsement the payment to be 
 made to the order of a certain person. Here the endorsee alone 
 
 ' Story on Prom. Notes, § 36. 8 Ind. 18. 10 Serg. & Eawle, 170. Story 
 
 " 3 HiU, 113. 1 Transcript, 301. 39 HI. on Pr. Notes, § 37. Edw. on Bills, 133. 
 
 331. Chitty on Bills, 179. Edw. on Bills, See 5 Bosw. 178, 319. 16 lU. 169. 
 
 135. Story on Pr. Notes, § 39. 11 Ind. • 1 H. Bl. 605. 6 "Wend. 637. Edw. on 
 
 131. 33 Iowa, 399. See 4 Nevada, 133, Bills, 131. 
 
 and refs. ' Story on Pr. Notes, § 67. Edw. on 
 
 "IRS. 768, § 5. 3 id. (Banks' 5tli ed.) Bills, 681, 683. 7 Mass. 58. N. Y. Code, 
 
 p. 68. 3 Sand. 138. 1 Bosw. 303. 4 E. §130. 19111.347. 80 Ind. 317. 
 
 D. Smitli, 83. 34 lU. 190. ' 2 Stark. 27. Chitty on BUls, 178, 580, 
 
 H Greene, Iowa, 157. Id. 187. 615. 
 
 » 3 Maiile & Selw. 90. 5 Taunt. 539. " 49 Baib. 103. ' 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 191 
 
 receives the bill or note, by virtue of the endorsement, and he may- 
 then further negotiate it by either form of endorsement. It is 
 restrictwe when the endorsement prevents its further negotiability, 
 by restraining the payment to a particular person ; as by ■writing 
 before the endorser's signature, " Pay to A. for my use," or " Pay 
 the contents to A. only," or any other expression which clearly indi- 
 cates that the endorser intends to prevent its further i transfer.^ A 
 qualified endorsement is where the endorser endorses in such a man- 
 ner as to avoid rendering himself responsible in case the bill or note 
 is dishonored. This is usually done by writing the words " "Without 
 recourse to me" either before or after the endorser's signature. It 
 may be by any equivalent expression. It is the proper mode for 
 agents who have received bills or notes payable to their order to 
 transfer them to their principals. Also for treasurers, cashiers, &c.* 
 
 § 362. An endorser may make a conditional transfer by writing 
 the condition before' his endorsement. If, therefore, the payee of a 
 bill, before its acceptance, make a conditional endorsement, the . 
 drawee who accepts it so endorsed will be bound by the conditidn, 
 and if its terms are not complied with, the property of the bill wiU 
 revei"t to the endorser, and he may recover the sum payable of the 
 acceptor.^ The rule applies to promissory notes.* 
 
 § 363. It is not essential to notes or bills that they should be pay- 
 able to order of the payee or to bearer. If, however, they are not, 
 they are not negotiable? But if made payable to the order of the 
 person who should thereafter fendorse them, or if they contain any 
 words indicating that th^ maker intended that they should be nego- 
 tiable, they are ; * and if originally intended to be negotiable, and 
 the words of transfer are omitted by mistake, they may be inserted.'' 
 But this rule applies only to special cases where it is intended that the 
 omission shall . be supplied, ' and not where the note was perfect 
 when it was delivered.^ If the payee is described as the agent of a 
 manufacturing company, he may, notwithstanding, bring an action 
 in his own name.' If one without authority from his principal sign 
 
 'Chitty on Bills, 258. Edw. on Bills, ♦ 3 Stark. (383) 306. Story, supra. 
 353, 277, &c. Story on Pr. Notes, §§138, ^ Chitty on Bills, 361. Edw. on id. 131. 
 
 &c. 3 Caines, 137. Story on Pr. Notes, § 3. 
 
 = Edw. on Bills, 383, 3. CMtty on id. ''3Hm,59. 
 254, 260, &c. Story on Pr. Notes, §§ 146, ' Chit. BUls, 181. 17 Wend. 243. 
 &c. 3 Mass. 235. 7 id. 470. 7 Cranch, » 3 Barb. 374. 
 159. " 8 Mass. 103. Dvmlap's Paley, 361, n. a. 
 
 ' cutty on Bills, 361. Story on Pr. 33 lU. 360. 
 Notes, '§ 149. 
 
192 OF CONTEACTS. 
 
 a bill or note as agent, or sign it in the name of another, he may be 
 regarded as the drawer or maker.^ The drawee of a bill or the 
 endorser of a note or bill may, howeTer, make a qualified acceptance 
 ■ or endorsement by words indicating that he does not accept or 
 endorse the paper in his individual capacity, but as an agent or 
 treasurer of a corporation ; as where a bill was drawn by the agent 
 of a corporation upon E. H. who was its treasurer, but without giv- 
 ing him his official designation, and E. H. accepted it, annexing to 
 his signature the words, "treasurer, &c."^ 
 
 § 364. Neither is it necessary that a note or bill should contain the 
 words " for value received," or any expression tantamount to them, 
 nor or they material in an endorsement. And indeed, if the com- 
 plaint alleges that the note or bill, or an endorsement was made " for 
 value received" it need not be proved.^ Where such words are used 
 in the complaint they imply a consideration, and unless the want 
 thereof is expressly put in issue, the note proves the fact.* 
 
 § 365. Bills and notes take effect from the time of their delivery, 
 and are considered as made or drawn at that time without regard to 
 their date, though the presumption is that they are delivered on the 
 day of their date.' They may be made payable at any time agreed 
 upon by the parties, as any number of days, months, or years, after 
 date, or after sight, or upon any particular day, or upon demand, and 
 with or without interest from the date. If the time of payment is 
 not expressed, they are payable on demand, and in this ease they 
 draw interst from date, although there be no mention of interest con- 
 tained in them.^ The time of payment cannot be altered by parol 
 evidence ; and a separate written agreement varying it, is not a part 
 of the contract but a distinct one, and the subject of a cross action 
 if violated.'' This rule, however, does not forbid a subsequent agree- 
 ment, upon a legal consideration, to give time, which will be valid 
 as against the maker or a purchaser after maturity, or with notice.^ 
 
 §366. As a general rule, the alteration of a bill or note in a 
 material part, by a party, or with his knowledge, unless done with 
 the consent of all the other parties concerned, renders it void, even 
 
 '3 John. Cases, 70. 13 John. 307. 1 "3 John. 300. Chitty on Bills, 169. 
 
 Denio, 471. 38 Barb. 644. 36 N. Y. Edw. on id. 160, 1, 187. 
 
 117. 20 Mo. 284. » Chit, on Bills, 170. 8 John. 189. 15 
 
 " 13 Barb. 636. 5 Seld. 583. Wend. 308. Edw. on Bills, 513. 
 
 = Chit. Bills, 79, 583. Edw. on id. 169, '8 John. 189. 4 Mass. 414. 30 Mo. 343. 
 
 170. Story on Pr. Notes, §§ 51, &c. 3 ' 10 Ohio N. S. 497. 37 111. 833. 35 
 
 E. D. Smith, 895. See 7 Ind. 363. Barb. 175. See 1 Corns. 374. Edw. on 
 
 ♦29111.104. 25 Ind. 346. Bills, 355. 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 193 
 
 in the hands of an innocent holder. Alterations are material among 
 other instances when they affect the date, time of payment, place of 
 payment, sum to be paid, manner of payment (as by inserting after 
 the name of the payee " or order") or consideration.^ Thusj where 
 A. & B. made tKeir note, and it was altered by B. before it was nego- 
 tiated, it conld not be collected of A." It makes no difference with 
 the rule, that the alteration is for the benefit, really or apparently, 
 of the maker.^ It is held in England, that the addition of the signa- 
 ture of another maker, after the execution and delivery of a note, 
 avoids it, if done without the knowlege and consent of the prior 
 makers ; * and the same rule prevails in Indiana and lowa.^ It is held 
 in New York that such an addition is not such an alteration as avoids 
 the note.® If the name of the payee or maker is erased, or new ones 
 substituted,' or if a joint note is made a joint and several one, or 
 ■oioe versa ; ^ or if seals are affixed to the signatures after execution ;' 
 these and similar alterations, without the assent of the parties 
 affected, will avoid the note. If duplicates are given, the alteration 
 of one does not affect the validity of the other.-"' It is otherwise, 
 however, if the alteration be immateriaP^ or the correction of amis- 
 take,^ or the insertion of senseless or inoperative words -^ or which 
 are mere surplusage, not changing the legal effect ; ■'* or a memoran- 
 dum ; ^ or the insertion of words which the law would supply ,^^ as 
 where the date was intended to run " in the year of our Lord," and 
 the word year was omitted and ^pplied.^'' If the holder of a note 
 makes an arrangement with the principal by, wliich the signature of 
 one of the sureties is erased, it is still valid against the principal, 
 but not against co-sureties.^^ An obliteration with a lead pencil is 
 not necessarily an alteration ; ^' nor are the writing over of pencil 
 
 ' 4 Bam. & AM. 197. Ky. & Mood. 363. '11 Mees. & Wels. 580. 3 Pa. St. 54. 
 
 19 John. 391. 17 Wend. 388. 24 id. 374. 1 GU. 475. lHalst.315. 31 Iowa, 344. 
 
 8 Barb. 374. 33 id. 647. 31 id. ,403. 40 » Holt, 474. 3 Car. & P. 401. 
 id. 16. 41 id. 465. 1 Daly, 380. 5 "Wis. ' 13 Mees. & Wels. 343. 
 
 534. 17 id. 333. 31 lU. 139. 34 id. 100. '° 4 Wend. 423, 6. 
 
 9 Ohio N. S. 443. 16 id. 348. 11 Cal.38. "33 Wend.'sOl. 16 111. 445. 5 Cal. 173 
 19 Ind. 339. 25 id. 346. 30 id. 310. See " 17 Wend. 338. 
 
 43 Mo. 451. Also 3 Barb. Ch. 130, &c. in " 15 Wend. 362. 15 Pick. 339. 
 a valuable note on this whole question. " 1 Denio, 339. 
 
 "4 N. H. 455. " 13 Pick. 399. 8 Com. Bench, 433. 
 
 » 15 East, 413. 19 Penn. 119. 33 id. '» 7 How. Miss. 176. 5 Taunt. 710. 10 
 
 433. 13 N. H. 385. Wend. 93. 
 
 * 5 Ellis & B. 83. " 6 Mass. 519. 
 
 = 20 Ind. 139. 17 id. 161. 19 Iowa, 531. "1 Denio, 130. 3 Ohio N. 8. 445. 31 
 
 • 37 K. Y. 39. 39 id. 400. 39 How. Pr. Iowa, 344. 21 111. 131. Infra, note (3). 
 R. 193 ; but see 40 Barb. 379. " 13 Barb. 595, 601. 
 
 25 
 
19i OF OONTEACTS. 
 
 writings with ink, or the change of the figni:es in the margin of a 
 note representing the amount for which it is given.^ If the holders 
 and makers make an alteration, the note is good as to them, but dis- 
 charged as to a surety ; his suhsequent assent will however hold him, 
 even if without new consideration.' Unauthorized endorsements of 
 credits may be erased by the holder ; ' if a note is expressed to be 
 " for value received," it does not vitiate it to insert the origin of that 
 value.^ So it is proper to insert words of negotiability where they 
 have been omitted by mistake.® Though this is denied in one case, 
 which holds that any such alterations, even by filling up blanks 
 which left the note imperfect, are allowed only in special cases.* It 
 has been held that a bill, the date of which was altered after accept- 
 ance and before negotiation, without the acceptor's consent, was valid 
 in an endorsee's hands. If, however, the acceptance had been for the 
 accommodation of the drawer, it would have been otherwise.' If 
 the date or amount are left blank, the holder may fill up the blanks 
 with proper dates or amounts without invalidating the note.* 
 
 § 367. It was formerly held that the general rule laid down in the 
 last section did not apply where one transfers, by his simple endorse- 
 ment, a note not negotiable, and the holder writes a guaranty of the 
 payment over his signature to the endorsement ; for by his endorse- 
 ment of a non-negotiable note, he may be regarded as the maker of 
 a new note for the amount, or the guarantor of the note endorsed, 
 and is not entitled to notice in order to charge him as an endorser.^ 
 Subsequent cases in E'ew York, however, hold that on making such 
 an endorsement the party is not a guarantor or maker, but an 
 endorser, and that this relation cannot be changed by writing, a 
 guaranty or new note over his endorsement." 
 
 § 368. The nile was early established in itfew York, that if an alte- 
 ration be apparent on the face of the note or bill, it is presumed to 
 be made before execution until the contrary be shown. It is, how- 
 ever, a question for a jury ; and where there are strong circumstances 
 to induce a suspicion that the alteration has been made fraudulently, 
 general corroborating circumstances may be admitted to strengthen 
 the suspicion, as that other notes made by the same parties to take 
 
 ' 14 Texas, 339. 1 B. I. 398. ' 2 CWt. 122. 5 Bam. &. AM. 674. 
 
 ns Iowa, 567. 21111.139. '21N-. Y. 531. 8 Keyes, 117. 
 
 MSInd. 543. 28111.188. » 8 Wend. 421. 13 Jolm. 159. 17 id. 
 
 • 31 111. 139. . 336. 
 
 " 17 Wend. 343. ' 3 Esp. 246. 2 Man. '° 7 Hill, 416. 1 Corns. 336. 4 Duel-, 45. 
 
 &Gr. 890. ION. Y. 337. 
 ° 3 Barb. 374. See 20 Ind. 317. 
 
BILLS OF EXCHANGE AND PKOMISSOET NOTES. 19$ 
 
 wp one of wMch the note in question was made had been altered ; 
 and either party may show circumstances attending the alteration.^- 
 But subsequent cases tliere and elsewhere, leave the rule whether an 
 alteration is presumed to have been made before or after execution 
 in doubt. Some cases in New York hold that where it is suspicious, 
 and beneficial to the holder, the presumption is against him, and he 
 must explain it before he can recover.^ Others go still further, and 
 seem to hold that any alterations must be explained.^ Subsequent 
 cases h9ld that there is no presumption that the alteration was after 
 the execution of the note, and that the jury cannot, from the mere 
 fact of an alteration appearing, find it was made afterward.* The 
 better rule would seem to be that, whatever is the presumption from 
 the mere fact of an alteration, the instrument itself, " with all the 
 circumstances of its history, its nature, the appearance of the altera- 
 tion, the possible or probable motives to the alteration, and its efi'ect 
 upon the parties respectively, ought to be submitted to the jury ;" in 
 short, that the question is really one for the jury.' That the altera- 
 tion is in a difi'erent ink from the rest of the paper is not enough to 
 call on the holder to make an explanation.^ In Indiana and Iowa 
 the rule seems to be well established that it is presumed the altera- 
 tion was made at or before the execution of the instrument.' 
 
 [§ 368a.] An alteration made by a stranger, or by the opposite 
 party, against the consent of^ the one claiming xmder it, or> by virtue 
 of it, will not avoid a note or other writing.' Formerly the rule was 
 otherwise.' 
 
 § 369. Vhere a note is made for the accommodation of the payee 
 with a view to its being discounted at a bank, it may be discounted 
 by any other person, on the refusal of the bank to discount it.-'" 
 
 § 3T0. Any person legally capa,ble of making a contract may be a 
 party to 'a bill or note ; " as a corporation, that is capable by law of 
 making contracts, provided the note is given in its legitimate busi- 
 
 » 3 John. Cases, 198, 300. ' 6 Ind. 153. 4 Greene, Iowa, 313. 
 
 ^ 7 Baib. 568, and reft. ' 5 Barb. 501. 6 Cowen, 746. 8 id. 71. 
 
 '3 Wend. 555, 559. 23 id. 388. See 1 1 Wend. 635. 1 Daly, 380. 3 Barb. Cb. 
 
 Bum. Wis. 185. 119. 9 Ad. & E. 934. 6 East, 309. 33 
 
 'IBosw. 353. 1 E. D. Smith, 10. Mo. 596. 4 Ohio N. S. 539. 34111.100. 
 
 » 1 E. D. Smith, 10. 1 Bosw. 353. 1 » 11 Coke, 37. 3 Barb. Ch. 133. 
 Halst. 315. 6 Ind. 153. 31 How. Pr. B. » 17 John. 176. 
 343. 44N. H. 337. See 1 Gihn. 475. 16 " Chit, on Bills, 15. Story on Pr. Notes, 
 
 111.445. 30 id. 437. §61. 
 
 '3 Barb. 404. 4 Iowa, 63. 7 id. 143. 
 
196 OF CONTEACTS. 
 
 ness^ (which must be affirmatively prored),' and, for certain pur- 
 poses, an infant. Thus an infant may transfer a bill or note by 
 endorsement,' though he might defend an action brought against him 
 as endorser.* And as his contracts are not void, but only voidable 
 at his election,^ he may make or endorse a note, or draw, or accept, 
 or endorse a bill, and if he should, after he became of age, promise to 
 pay it, his promise will bind him on the ground of a prior obliga- 
 tion." That promise must be to the holder or his agent. "If made to 
 a stranger it will not be binding.' In like manner, if he be a partner, 
 his promise after he becomes of age to pay a note drawn or endorsed 
 by the firm is valid.^ If a note or biU be made payable to, or trans- 
 ferred by endorsement to an infant, he may collect it by action.^ 
 
 § 3T1. A married woman could not at common law be a party to a 
 bill or note,^" except in the single case of her endorsement for the 
 purpose of transferring one which she owned prior to her marriage, 
 in which case the endorsement should be ,made with the assent of the 
 husband.''^ The statutes of England and of various of the states, have 
 materially changed this rule, enlarging the powers of the wife ; so 
 that there is now no general rule applicable to such states, each being 
 governed by its own statutes. In ISTew Tork, by various separate 
 enactments, married women are allowed to carry on business on their 
 own account, and may make all necessary contracts relative thereto, 
 such as giving a note, &c.''^ Under the code of Iowa of 1851, the 
 wife may make binding contracts in respect to her separate property, 
 without her husband's assent, and if she signs a note with her hus- 
 band, it is good where it is given for family expenses and necessa- 
 ries, and she agrees on its face that her separate property shall be 
 
 » 
 
 ' 5 Denio, 667. 4 Kern. 363. 6 Seld. ' 14 Mass. 457. 
 
 449. 23 Barb. 176. 1 B. S. 768, § 8. 3 ' Cliitty on Bills, 34. Edw. on id. 68. 
 
 id. (Banks' 5tli ed.) 68. Chitty on Bills, Story on Pr. Notes, § 79. 
 
 17. 1 Cowen, 513. Story on Pr. Notes, » 18 N. T. 26S. 33 id. 450. 5 Iowa, 
 
 § 74. Edw. on Bills, 75, &c. 9 Ind. 359. 436. 3 Cal. 83. 4 id. 285. 5 id. 457. 10 
 
 13 Wis. 653. id. 265. 5 Wis. 245. 9 id. 516. Story 
 « 5 Denio, 567. on Pr. Notes, § 85. Edw. on Bills, 68, 
 ' Chit, on BUls, 23. ,Edw. on id. 67. &c. Chitty on id. 24. 
 
 Story on Pr. Notes, § 80. 15 Mass. 373. " 13 Wend. 433. 4 Seld. Notes, 19. 35 
 
 14 Ind. 383. Mo. 364. 
 
 * Chitty on Bills, 33. '= Laws of 1848, ch. 300. Id. of 1849, 
 
 '3 Wend. 479. 17 id. 419. Chit, on ch. 375. Id. of 1860, ch. 90. Id. of 1863, 
 
 BUls, 33. ch. 173. 3 E. S. (Banks' 5th ed.) 339, 340, 
 
 = Edw. on Bills, 65. Chitty on id. 33. §§ 75, &c. 35.Barb. 78. 34 How. Pr. K. 
 
 17 Wend. 419. 18 Barb. 330. 31. 3 Abbott N. S. 330, note. 
 
 ' 3 Hill, 130. 33 Barb. 150. 
 
BILLS OF EXCHANGE JCND PEOMISSOET NOTES. 197 
 
 held therefor.^ In Wisconsin, under their statutes, married women 
 can make all such contracts as are necessary or coavenient for the 
 beneficial enjoyment of their separate property.' For the law of 
 IS'evada on the subject, reference is made to her statutes.' That of 
 Ohio is on page 64 of her laws of 1861, as construed by decisions.* 
 That of Oregon at page T86, chapter 32, of the general laws of that 
 state. In California, there are both statute and decisions f as is also 
 the case in Illinois.* That of Indiana is found in her laws, 1 Gr. & 
 H. § 5, p. 295, of the acts of 1853, and laws of 1861, ch. 101 ; and 
 that of Michigan in vol. 1, compiled laws, p. T3 ; 2 id. pp. 964 to 
 967 inclusive. The New York statutes have not enabled a married 
 woman to give an accommodation note, even where it contains a 
 charge of her separate estate to its payinent.'' And a person taking 
 such a note, even iona fide and for value, cannot recover upon it 
 against her.^ It will make no difference at common law if the mar- 
 ried woman live apart froni her husband, either on a separate main- 
 tenance, or in a state of adultery, or if she be divorced from his bed 
 and board ; ' and it has been held that her promise made after his 
 death to pay a note made or endorsed by her while married, will be 
 of no avail unless she had a separate estate at the time she made or 
 endorsed it.^" But these authorities have been overruled in New 
 York in a case where a married woman, who was a trader, having 
 given her note for goods purchased in her business, promised 
 to pay it after her husband's death. It was held that at common 
 law this enabled the holder to recover on the note.*^ Where, how- 
 ever, a married woman endorsed a note, and the maker promised the 
 endorsee to pay it, it was held that an authority from her husband to 
 transfer it might be presumed, *in an action against the maker. And 
 where an endorsement by a married woman is not valid as against 
 her, yet as between the holder and any party to the note after her 
 endorsement, its invalidity cannot be set up.'* 
 
 ' 9 Iowa, 163. 13 id. 596. See also, 17 March 34, 1869. 83 lU. 493. 87 id. 347. 
 
 id. 308. 40 id. 399. 46 id. 370. 
 
 "Rev. Stat, of Wis. IBSS, ch. 95. 13 '53 Barb. 135. 
 
 "Wis. 135. 15 id. 365. 16 id. 480. Also, = 18 Abb. Pr. 333. 38 How. Pr. R 155. 
 
 5 id. 345. ' Chit, on Bills, 34. Stoiy on Pr. Notes, 
 
 'Lawsof Nevada, 1865, ch. 76. Id. of §85. But see 4 Iowa, 331 j 5 0hioN.S. 
 
 1867, ch. 10. 580, under their statutes. 
 
 • 14 Ohio N. S. 448. 16 id. 509. " Chit, on Bills, 35. 18tr.94. 5 Taunt. 
 
 ' Laws of California, 1852, ch. 43. 6 36. 11 Adolph. & E. 338. 
 
 Cal. 498. 7 id. 458. 10 id. 13. 33 id. 53. ='36 KY. 604. 
 
 36 id. 435. 39 id. 130. 31 id. 476. « Chitty on Bills, 37. Story on Pr. 
 
 "Laws of Illinois, 1861, p. 143. Id. of Notes, § 87. 
 
198 OF CONTEACTS. 
 
 § 372. Where a husband allows his wife to act as his agent, her 
 endorsement in Ms name will bind him, whether to transfer a note 
 or bill, or to render him liable upon his obligation as endorser.* So 
 if the husband is present at the execution of a mortgage by his wife 
 of his personal property and assents to its execution.^ Where a wife 
 who was in the habit of making purchases for her husband, bought 
 certain property which was afterward used on her husband's farm, 
 giving her own note therefor, it was held in an action for the pro- 
 perly, that it was a question for the jury whether she did not make 
 the purchase as her husband's agent, although she told the seller 
 when she bought the property, that it was bought for hersBlf and was 
 hers.^ Chitty says : " If the husband is a tradesman and unable to 
 write, and it appears that his wife has usually written for him what- 
 ever was requisite in his business, in order to bind him upon a note 
 or bill signed by her, it must appear that it wag signed in the course 
 of his business ; and this notwithstanding he has recognized her 
 signature to it." ^ But the above cases somewhat enlarge this rule. 
 
 § 373. At common law, a note payable or endorsed to a married 
 woman, belonged to and in legal operation was payable to her hus- 
 band ; and might be negotiated or collected by him, either in his 
 own name alone or in the name of himself and his wife jointly;^ 
 and in such case where he sued alone upon it, a debt due from his 
 wife before marriage could not be. set off.* In like manner, where a 
 note was made or endorsed to' her before marriage, on her marriage 
 it, became vested in her husband; while it was somewhat doubtful, 
 whether, if it fell due before marriage, the action should not be by 
 both husband and wife, it was not necessary for him to join her name 
 with his in the action if it fell due afterward.'' 
 
 [§ 373a!.] The statutes of various states have modified or entirely 
 changed this rule. In New York, marriage now does not vest the 
 property of the wife in her husband, nor prevent her receiving to 
 her own use from any. other person than her husband any real or 
 personal estate ; and the Code qf Procedure enables her to bring her 
 action in her own name in respect to it.^ References are made to 
 
 ' Edw. on' BUls, 71, &c. Story on Pr. • 10 Bam. & Cress. 558. 
 
 Notes, § 87. '1 Barn. & Aid. 218. Chitty on Bills, 
 
 ' 5 Seld. 40. 36. 
 
 = 5 8eld. 305. 37 Barb. 480. See 39 id. ' Laws 1848, ch. 300. 1849, ch. 876. 3 
 
 193. R. S. (Banks' 5th ed.) 339, 340, §§ 75, &c. 
 
 * Chitty on Bills, 35. Code of Procedure, § 114. 
 
 " Story onPr. Notes, §§ 88, 134. Edw. 
 on Bills, 71, &c. Chitty on id. 36. 
 
BILLS OF EXCHANGE AND PE0MIS80EY NOTES. 199 ' 
 
 the rules in otlier states upon the general question of the rights 
 between husband and wife, omU % 3Y1, so far as we have been able to 
 consult the proper authorities. 
 
 § 374. Where a bill or note is payable to the order of a particular 
 person, it cannot be transferred without his endorsement, so as to 
 render it available as commercial paper, although it may be trans- 
 ferred in any manner as another contract may be. If it is transfer- 
 red by endorsement before it is payable, the transferee who has 
 received it in good faith and for a valuable consideration, can collect 
 it of the acceptor or maker irrespective of any legal or equitable set- 
 off or defense which existed between the original parties, with the 
 exception of such defenses as exist by virtue of the statute declaring 
 notes made for certain purposes absolutely void.^ . If transferred 
 without endorsement, the transferee may bring his action upon it, but 
 the defendant may in this case set off any payment or demand which 
 he had against the payee previous to receiving notice of the transfer, 
 or may interpose any defense which might have existed against the 
 demand while in the payee's hands ; ' and the same rule holds in the 
 case of a note payable to a certain payee, without being made payable 
 to his order or to bearer, and which is therefore not negotiable.' 
 
 § 3T5. A bill made payable to the order of a fictitious payee or 
 order, is tranferable by delivery.* And by statute in ]S"ew York, 
 notes made payable to thQ order of the maker or of a fictitious per- 
 son, if negotiated by the maker, have the same effect and are of the 
 same validity as against the maker and aU persons having knowledge 
 of the facts, as if payable to bearer.' The same general rule applies 
 to bank checks payable " to the order of bills payable" or other ficti- 
 tious payee, and to notes payable to the order of the maker.^ 
 
 § 376. If the payee of a note not negotiable, transfer it by endorse- 
 ment, he becomes liable as endorser upon it, in the same manner as 
 if it were payable to his order.'' 
 
 § 377. Either of the parties to a bill or note may act by a duly 
 authorized agent, and the payee may make the drawer of a bill or the 
 maker of a note, his agent to endorse and negotiate it.* In the ease 
 
 '1 "Wis. 436. Edw.- On Bills, 258, &c. "SDuer, 131. 3 Hill, 113. 
 
 « 13 Mass. 305. 3 Wend. 69. ' 3 Corns. 494. 
 
 » 20 Jolm. 144. 2 R. S. 354, § 18. 3 id, ' 1 R. S. 768, § 3. 3 id. (Banks' Sth ed.) 
 
 (Banks' 5tlied.) 634, §13. See 40 Ohio N. 68. 2 Bam. & C. 394. Edw. on Bills, 80, 
 
 8. 586. 16 Wis. 616. &c. Ch. on id. 31. Story on Pr. Notes, 
 
 * Chitty on Bills, 178. § 65, &c. 1 Hall, Sup. Ct. R. 336. 
 
 » 1 R. S. 768, § 5. 3 id (Banks' 5tli ed.) 
 68. Supra, § 360. 
 
200 OF CONTEACTS, 
 
 of bills or notes held by partnerfebips, either partner may, in the course 
 of the partnership business, endorse the firm name or authorize an 
 ~ agent to do it. If they are held by joint owners, who are not part- 
 ners, each must join in the endorsement, and after the dissolution of 
 a partnership, both partners must unite in the endorsement unless 
 one is specially authorized to use the name of the former firm.^ li 
 one partner dies, and a dissolution is thereby created, the survivor 
 may endorse in his own name.^ Where held by a bank, the cashier 
 may endorse for the corporation, ex officio, and the president or other 
 officer, by vote of the directors.' On the death of the payee or holder 
 of a bill or note, it vests in his executors or administrators, who alone 
 can transfer it. If the payee makes an assignment as an insolvent 
 debtor, his assignee alone can do it.* 
 
 § 378. A bill or note once negotiable may be transferred by the 
 holder at any time ; but if it is transferred after it has become pay- 
 able, the holder is liable to be met with any defense or set-off which 
 existed at any time after its maturity, against the payee in favor of 
 the acceptor or maker.' If it be transferred by endorsement after it 
 is payable, the endorser may be charged by the endorsee presenting 
 it and demanding payment of the acceptor or maker immediately, or 
 as soon as it can reasonably be done, and upon his failure to pay, noti- 
 fying the endorser as in other cases ; ^ but with this exception, the 
 transfer after the maturity will not affect the rights of any of the par- 
 ties to the bill or note farther, than to pass them from the endorser to 
 the new endorsee.'' 
 
 § 379. The endorser's name may be written on the back or any 
 other part of the bill or note, and if there is, or is not room for them 
 there, they may be written on an annexed paper, called an allonge? 
 "Where written by the endorser's agent, he should either simply write 
 the name of his principal, or write it with the addition, " by A. B. 
 his agent." ' The authority of the agent may be express by oral or 
 written authority, or it may be implied from the relations proved to 
 
 ' Story on Pr. Notes, § 125. Edw. on Cowen, 387. S Barb. Ch. 403. Edw. on 
 
 Bills, 99. Chitty on id. 236. BiHs, 56, &c. CMtty on id. 342. Story 
 
 = Story on Pr. Notes, § 135. on Pr. Notes, §§ 191, &c. 
 
 ' 11 Mass. 94. 17 id. 94. 4 Hill, 443. ' 13 Cal. 308. 6 Bosw. 593. 7 Minn. 
 
 5 Denio, 383. , 74. 3 "Wend. 75. 
 
 * Story on Pr. Notes, § 130. Edw. on ' 3 Cowen, 253. 
 
 Bills, 247. Chit, on Bills, 326, 227. = Chitty on Bills, 263. Edw. on id. 367. 
 
 » Infra, §§ 388, &c. 4 Cal. 309. 35 HI. Story on Pr. Notes, § 151. 15 Ind. 59, 
 
 507. 29 id. 149. 13 "Wis. 373. 10 Iowa, 39 lU. 92. ' 16 "Wis. 616. 
 
 308. 12 id. 63. Id. 99. 13 id. 562. 1 " Chit, on Bills, 254. 
 
BILLS OF EXCHANGE AND PK0MI8S0EY NOTES. 201 
 
 exist between liim and the principal, or the recognition of Ms acts, as 
 in other cases of agency.^ And any signature which wonld be suffi- 
 cient to hold the principal in other cases, will be sufficient to an 
 endorsement of a biU of exchange or promissory note.^ 
 
 § 380. Where a bill or note is payable to bearer, or where payable 
 to the order of the payee, and by him, or by any subsequent endorser 
 endorsed in blank, the law presumes that the holder is the rightful • 
 owner of it ; that he received it in the usual course of commercial 
 business, in good faith and for a valid consideration; that it was 
 made upon a good consideration passing to the maker, and that it 
 was transferred to the holder immediately thereafter.' Neither of 
 these facts need be pleaded nor proved, unless they are specially con- 
 troverted.* If, therefore, partners sue as the holders of a bill or note, 
 its production endorsed in blank is sufficient to show their owner- 
 ship.' The holder of a note endorsed in blank, may fill it up so as to 
 make it payable to his own order or to the ordesr of any other person,* 
 or may make the endorsement restrictive.' And if the endorsement 
 is so filled up or made restrictive by the holder, not for the purpose of 
 transferring it, but simply for the convenience and safety of its collec- 
 tion, he may afterward strike it out.' A person is liable as endorser 
 to a honafide holder who writes his name on the back of a negotiable 
 bill, though he never delivered it with the intent to transfer the title.' 
 
 It was once held, in one case, that the presumption in the case of a 
 full endorsement is, that the bill or note has been transferred to the 
 endorsee ; and to divest him of this prima facie legal title,, it must ' 
 be shown that the endorsement has been canceled by one having 
 authority to do so." But this is against the current of the decisions, 
 and is overruled in New Tork." 
 
 ' 1 Hall, 340. " 3 Cowen, 353. Edw. on Bills, 371, 
 
 ni Mass. 388. 273. 16B. Mon.573. 17111.459. 35 id. 
 
 ' 11 Ad. & E. 702. 3 John. Cases, 5. 341. 28 id. 506. 10 Ind. 236. 16 id. 481. 
 
 9 Jolm. 317. 8 Wend. 600. 13 id. 557. 6 3 Greene, Iowa, 108. 
 
 Hill, 336. 1 Denio, 116. 7 Paige, 615. 4 ' Chit, on Bills, 357. Edw. on id. 377. 
 
 Corns. 166. 3 Seld. 309. 33 N. Y. 581. Story on Pr. Notesi § 143. 
 
 17 Barb. 530. 18 id. 344. 19 id. 147. 4 " 3 HiU, 140. 1 Denio, 367. Id. 608. 
 
 Ind. 533. 7 id. 556. 9 id. 278. 5 Cal. 5 id. 51. 1 Sand. 37. 11 Ind. 293. 16 id. 
 
 458. 9 id. 246. 16 111. 371. 20 id. 557. 284. 35 111. 341. 
 
 38 id. 397. 8 Wis. 367. 3 Greene, Iowa, ' 5 Duer, 260. 
 
 108. Id. 572. 4 Iowa, 140. 9 id. 531. '° 15 Loui. R. 365. Cited, 2 Hill, 143. 
 
 33 id. 334. 6 Md. 319. " 3 Wheat. 173. 1 Sand. 37, and refa. 
 
 < 9 Cal. 346. 5 id. 458.^ 19 111. 161. Breese, 111. 388. 2 Scam. 433. See 19 111. 
 
 Edw. on Bills, 78. See 3 Minn. 319. 573. 16 Ind. 384. Edw. on BiUs, 371. 
 
 = Chit, on Bills, 355. 1 Denio, 367. 
 26 
 
202 OF CONTEACTS. 
 
 It is proper to add tliat these rales do not apply to paper that is 
 aot negotiable.^ 
 
 § 381. A hill, or note, or other contract, except on the consent of the 
 debtor, cannot be transferred for a part only of the sum due, for a per- 
 sonal contract cannot be apportioned except by such consent ; and the 
 transfer would pass no interest to the holder elaiming under it against 
 'the acceptor or maker. But when a part of it has been paid, the 
 balance may be transferred.' A note may be transferred as security 
 for a smaller sum, and the holder can recover the full amoxmt of the 
 maker.^ It is said that if a bill be transferred by endorsement before 
 acceptance, 'the acceptor may, by special acceptance, render himself 
 liable to two different persons.^ If the bill or note be valid in its 
 inception, it may be sold for a consideration less than its nominal 
 amount ; ' but in case it is not paid at maturity, and the endorser who 
 transferred it is charged, he is liable only for the sum which he actu- 
 ally received, with interest.* Aliter in Georgia, under the statute of 
 that state.'' If it is guarantied, on the other hand, instead of endorsed, 
 the guarantor is liable for the whole amount of the note, and not for 
 the amount merely that he received upon his guaranty.* 
 
 § 382. A guaranty of the payment, or of the collection of a bill or 
 note, is frequently written upon it. At common law it was held that 
 if the guaranty were written upon the bill or note at the time it was 
 made, and were made to the payee or bearer, it was transferable with 
 it, and an action, upon it might be hrought by any subsequent holder. 
 Otherwise, if it were not negotiable, and an action could only be 
 brought upon it by the person to whom it was originally given.* 
 Doubts have since been thrown upon the rule.^" At any rate, now, 
 under the Code of Procedure, requiring all actions to be brought in 
 the name of the parties in interest, all valid guaranties of bills or 
 notes are transferable with the security to which they relate, and 
 actions upon them may be brought by their holders.^^ The same rule 
 ' will prevail wherever the rule has been similarly changed. In the 
 case of a guaranty of collection, the guarantor is liable for the costs 
 of a suit brought to collect the note." 
 
 '31 Barb. 241. '39 660.455. 
 
 = Chitty on Bills, 363. Edw. on id. 380. "4 Wis. 190. 31 Wend. 588. 
 381. 37N. Y. 336. 3 Keyes, 40. "19 Wend. 303. 31 id. 588. 34 id. 456. 
 
 " 3 Greene, Iowa, 373. 19 Ind. 160. 36 id. 435. 3 HUl, 188. Bee 3 Mich. 188. 
 
 " Chitty on Bills, 3G3. "3 Corns. 533. Id. 553. 30 N. Y. 
 
 "13 John. 53. 7 Wend. 569. 331. 
 
 " 7 Wend. 569. 39 How. Pr. R. 193, 300. " Code of Procedure, § 111. 
 31 Barb. 341. " 3 Keyes, 161. 
 
BILLS OF EXCHANGE AND PEOMISSOEY NOTES. 203 
 
 § 383. Wliere tlie guaranty is that the 1)111 or note shall be paid at 
 its maturity, if the acceptor or maker fail to pay it, the holder may 
 bring his action upon it without demand or notice.^ If, however, the 
 guaranty be that the note is good, or that it shall be collected, it is 
 necessary, in order to charge the guarantor, that the holder show that 
 it cannot be enforced against him.^ 
 
 § 384. It was formerly held in New York, that if a guaranty be 
 made at the time of making the bill or note, and guaranty its payment, 
 the guarantor is liable as a joiat and several maker of it.* This doc- 
 trine was subsequently overruled.* But subsequent decisions throw 
 the whole question in doubt, though it is the better opinion that the 
 guarantor will be held liable as such, and not as a joint and several 
 maker of the Hote.^ 
 
 In Indiana, Texas, Hhnois, Minnesota, Ohio and Cahfomia, it is 
 held that, though in the absence of proof the presumption is that one 
 who writes his name on the back of a not^, is an endorser, ^et that a 
 party, not being a payee, who endorses a note in blank when it is 
 made, or afterward on a new consideration, is liable as an original 
 promissor or surety." If there is no date to the endorsement, it is pre- 
 sumed, at least in favor of a subsequent ionafids holder, to have been 
 made at the inception of the note,'' or the guaranty may be written 
 over thfe signature at the trial.* 
 
 In Wisconsin, he is treated as an endorser.' 
 
 It has been held in our courts that where A., intending to become a 
 surety for C, endorsed his note payable to B. or order, before its 
 delivery to B., B. may write over the endorsement a guaranty ; but 
 thai an agreement must be shown that it was intended to answer in 
 some other form than as endorser, and the case must be one where he 
 could not be held as an endorser in order to justify it.^" In a recent 
 case, where F. made his note payable to S. or order, and G-. knowing 
 that it was given in pursuance of an arrangement that he should be 
 security for F. to S., endorsed it, it was held that G-. was liable as an 
 endorser only." 
 
 § 385. By the statutes of most of the states, in order to render the 
 
 '19 Wend. 303. id. 91. 8 Cal. 96. 3 Minn. 139. Id. 147. 
 
 » 14 Wend. 331. 7 id. 446. 15 OMo N. S. 515. 
 
 = 34 Wend. 456. 1 HiU, 356. 4 id. 430. '6Ind. 478. 14 Texas, 375. 17 111. 
 
 *4Seld. 307. 20 N. Y. 331. 459. 2 Minn. 139. 
 
 » 31 N. T. 315. 39 Barb. 43. ' 17 111. 459. 
 
 '6Ind. 478. 11 id. 395. 16 id. 336, 265. » 9 Wis. 516. 13 id. 639. 13 id. 337. 
 
 14Texos,375. 17111.459. 20 id. 367. 35 " 1 Hill, 91 ; but see 4 Duer, 45. 
 
 "2 Hill, 80. 
 
204 OF CONTEACTS. 
 
 guarantee of a note eifectual, it must comply -with the provisions of 
 the statute of frauds, and express the consideration on which it is 
 given, in those cases where it is treated as a guaranty, and not as an 
 endorsenient or a note. But in JSTew York it is, as we have seen, no 
 longer necessary that it express the consideration.'^ The words "for 
 value received," in cases where it is necessary to express the consi- 
 deration, would be sufficient for that purpose.^ In California and 
 Indiana it is held that such a guarantee is not within the statute, and 
 that the note imports a consideration.' 
 
 § 386. If a bill or note which has been paid by any person other 
 than the acceptor or maker, be re-issued before it is by its terms pay- 
 able, even in fraud of the parties, it is notwithstanding valid in 
 the hands of a ionaflde holder, against all parties to it. It is there- 
 fore important that one who pays an acceptance or note made by him, 
 should mark it as paid in order to prevent its being again negotiated. 
 The drawer of a bill, or an" endorser of a bill or note who has paid it, 
 may however put it into circulation after its maturity.^ 
 
 § 387.1 An acknowledgment made by one of the makers of a note 
 after its maturity, of his indebtedness upon it, upon the faith of 
 which a third person purchases it, will prevent him from showing 
 that he signed the note as surety for the other makers, and that at the 
 time of his acknowledgment the ^incipal makers had without his 
 knowledge paid it.^ This is upon the principle of an estoppel in pais, 
 of which mention will be made in treating of evidence.* 
 
 § 388. Although a bill of exchange or promissory note of itself 
 imports a consideration which need npt be pleaded or proved, and 
 that the holder took it in the usual course of business, in good f*ith 
 and for value, yet as between immediate parties to it, as the drawer 
 and acceptor, drawer and payee, maker and payee, payee and his 
 endorsee, any total or partial want of consideration, or failure or ille- 
 gality of consideration, may be shown as a defense.'' And in like 
 manner, when the defendant shows tha,t the holder of the bill or note 
 was not a purchaser of it in good faith, or for value paid at the time, 
 or that he purchased it after it had become payable, he may then 
 
 ' Ante, § 127. Bess. Laws of 1863, ch. on Pr. Notes, § 180. 9 Foster, N. H. 392. 
 
 464, p. 802. 3 Mass. 556. 
 
 "23 N. Y. 495. 4 Seld. 307. 3 Keyes, "21 Wend. 172. 
 
 161. 4 Wis. 190. ° Infra, § 1402. 
 
 ''2Cal.485. 25 Ind. 346. '17 John. 301. 7Cowen,322. 2 Wend. 
 
 * 3 Camp. 194. 3 Maule & Selw. 95. 431. 13 id. 246. 13 id. 605. Story on 
 
 Chitty on Bills, 248, 249, and refs. Story Pr. Notes, § 190. Edw. on Bills, 56. Id 
 
 78. 82111.260. 
 
BILLS OF EXCHAKeE AND PEOMISSOET NOTES. 205 
 
 interpose tlie defense. Tlie policy of tHe law is to protect tlie pnr- 
 cliaser of commercial paper (among whicli are railroad bonds under 
 seal and payable to bearer, and similar securities),^ who in good faith 
 purchases it before its maturity, parting with value for it, from any 
 defense existing between the original parties to it, except in cases 
 where the statutes make notes given absolutely void, as in violation 
 of the usury laws, or the acts in relation to betting and gaming.^ 
 But he must appear with perfectly clean hands in order to avail him- 
 self of the character of a iona fide holder, and if it appear that he 
 gave nothing, or but a trifling consideration for the paper, so as to 
 make the purchase merely colorable, or that he bought it under such 
 suspicious circumstances as should have put him upon his guard, it 
 will be sufficient to let in any defense which existed between the 
 immediate parties.' As we have before said, it is presumed that the 
 holder received it before it was due, in good faith and for value.* 
 Eut if the defendant proves that the paper was put in circulation 
 fraudulently, or is illegal, then the presumption is changed, and the 
 plaintiff -must show when he received it, his good faith in the trans- 
 action, that he paid value, &e.^ It is not enough however, to change 
 the presumption, that the bill is proved to have been without con- 
 sideration as between the immediate parties, i. e., was accommodation 
 paper.^ It is a sufficient consideration that the note was taken as 
 collateral security by one who made advances at the time upon the 
 credit of it.'' So when it is taken before due, in payment of a pre- 
 cedent debt.^ But one who buys a note against a person in good 
 credit for a small percentage of its amount, as a note for $300 for 
 $5, is not a purchase, for value.^ 
 
 § 389. Within the rules laid down in the preceding section, one 
 who is without any knowledge of the transaction out of which the 
 bill or note originated, may purchase it before it is payable, and 
 recover the amount for which it is given, notwithstanding it was 
 given without consideration, or a blank left for the amount was filled 
 
 ' 19 K Y. 20. 41 Barb. 9. 10 Boaw. 'Ante, § 380. 
 
 333. 33 Ind. 353. = 1 Duer, 309. 4 id. 458. 6 id. 309. 4 
 
 ' 1 John. 319. 8 Wend. 600. 10 id. Corns. 166. 2 Bosw. 613. 11 Gush. 198. 
 
 341. 2 HiU, 599. Story on Pr. Notes, 5 Mict. 505. 10 Cal. 533. 13 OMo N. S. 
 
 §§ 191, &c. Edw. on Bills, 56,* &c. 2 534 ' 
 
 Cal. 64. 4 id. 333. CMtty on Bills, 248, ° 5 Duer, 463. 6 Md. 509. 
 
 &c. 33 Ind. 88. 17 Wis. 61. 18 id. 615. ' Infra, § 389a. 
 
 30111.557. "11 Minn. 198. 3 Kern. 551. 31N.T. 
 
 « 4 HiU, 443,434. Supra, §878. Cliitty 113. 37 How. Pr. R. 534. 
 
 on BUIs, 243, &c. 30 111. 404. ° 3 Wis. 473. 
 
206 ■ OF CONTEACTS. 
 
 witli a sum exceeding the limit fixed by the maker or acceptor/ or 
 it was given for an illegal consideration, as to compound a felony, or 
 was stolen or procured from the 'maker through fraud," or has been 
 diverted from its original purpose,' or was for any other cause uncol- 
 lectable by the original payee against the acceptor or maker, or 
 although there was some vicious feature in the consideration passing 
 between the endorsers. In such cases as these the defense would be 
 a perfect one between the original parties ; and it would also be 
 available against the present holder, if the defendant should first 
 show that such holder purchased it with notice of the defense, or 
 after it had become payable, or that he paid no value at the time for 
 it.^ The defendant, however, must rebut the legal presumptions in 
 the plaintiff's favor before he can introduce the particular facts con- 
 stituting his defense* If the note is not a valid one in the hands of 
 the payee, and given for an actual consideration, it cannot be ren- 
 dered valid by a sale thereof to a io^ia fide purchaser for a less 
 amount than upon its face purports to be due thereon.* 
 
 [§ 389a. J Whether and under what circumstances the taking of a 
 note as security, or in payment of an antecedent debt, is sufficient to 
 render the holder one for value, has been a vexed question. It is 
 now settled in ITew York and some of the other states, that receiv- 
 ing a note in good faith, in payment of an antecedent debt, whether 
 due or not, the eroidenoes of suoh debt or a security therefor heing at 
 the same time surrendered or desbroy^, is sufficient to make one a 
 holder for value.' If no security, property or other thing of legal 
 value is parted with, he is not a holder for value.* In like manner, 
 where a note is received in good faith as security for a precedent 
 debt, and the creditor at the same time surrenders other securities 
 or relinquishes some rights therefor (though this may not be under 
 all circumstances absolutely indispensable), the creditor is a holdei 
 for value.' A person is not a holder for value who holds the pro 
 
 '31K. T. 531. 41 Barb. 38. 430. 13 Wis. 375. 31 111. 166. Id. 638 
 
 = 16 Barb. 548. 24 id. 554. 37 id. 458. Infra, §§ 464, &c. 11 Minn. 198. 
 4Duer,458. »Id. 1 Transcript, 231, and refs. 24 
 
 '39N.Y.673. 13 Iowa, 463. ' Barb. 554. 43 id. 379. 
 
 * 39 Barb. 645. 5 Duer, 485. » 6 Hill, 93. 17 N. T. 101. 83 id. 558. 
 » 5 Mass. 334. 1 John. 819» 8 Wend. 33 Barb. 81. Id. 631. 43 id. 879. 3 
 
 600. Bosw. 348. 5 id. 193. 8 id. 343. 6 Ohio 
 
 • 36 Barb. 585. See 14 Ohio, N. S. 396. N. 8. 448. 8 Cal. 360. 14 id. 94, 460. 38 
 ' 6 Hill, 93. 31 N. Y. 113. 37 id. 440. 111. 438. 13 Iowa, 463. 18 id. 589. 16 id. 
 
 2 Kern. 551. 1 Transcript, 353. 30 Barb. 441. 17 id. 303. 14 Wis. 1. 18 id. 615. 
 246. 31 id. 183. 33 id. 215. 37 id. 458. 17 id. 61. 
 41 id. 28. 43 id, 379. 3 Bosw. 310. 5 id. 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 20Y 
 
 eeeds of collections against a balance due from the correspondent 
 from whom the collections were received,^ even it woiild seem, 
 where the proceeds were credited to the correspondent by his direc- 
 tions.* If the paper is taken under an agreement that it is to be a 
 payment when collected, the holder is not one for value.^ 
 
 § 390. One who purchases commercial paper in the ordinary course' 
 of business, that is for value, before maturity, without notice of any 
 equities between the original parties, or of any defect of title, is to be 
 deemed a lonafide holder. He is not bound at his peril to be upon 
 the alert for circumstances which possibly might excite the suspi- 
 cions of wary vigilance. He does not OM'e the party who put nego- 
 tiable paper afloat, the duty of active inquiiy to arrest the imputa- 
 tion of bad faith. The rights of the holder are to be determiued by 
 the simple test of honesty and good faith, and not by a speculative 
 issue as to his diligence or negligence.* If he has any notice that 
 leads him to inquiry^ it is enough that he makes such inquiries as a 
 man of ordinary prudence would do.^ If he Teceives the paper from 
 one who has the legal right to dispose of such a security, he is pro- 
 tected, though the authority was wanting in the particular instance.® 
 
 It is not enough, in order to admit the defense against a holder of a 
 bill or note who has purchased it before its maturityj and paid value 
 for it, that he was informed that there had passed no consideration 
 between the drawer and acceptor, or the maker and payee, unless he 
 had notice also that the person from whom he received it acted 
 fraudulently in negotiating it^ ISTothing is more usual than to draw, 
 or endorse, or accept a bill, or to make or endorse a note, merely 
 for the accormnodabion of a friend, and as a loan of one's credit, and 
 in such eases, the purchaser of the bill or note who pays value for it, 
 is protected.'' If, however, an accommodation paper was made or 
 endorsed for a particular purpose, of which the purchaser has know- 
 ledge, and it be used for any other purpose, it will be invalid in his 
 hands ; and if, when made for such purpose, any circumstances have 
 arisen which would render it unjust to the accommodation party to 
 use it, no person aware of the fact, can, by obtaining it, render it 
 available against him.^ 
 
 '36N. Y. 450. «31N. T. 33. 1 Bosw. 303. ' 
 
 = 44 Barb. 175. ' Ohitty on Bills, 91. 7 Jolm. 363. 7 
 
 = 33 N. Y. 389. . Wend. 337. 1 Edm. Sel. Cases, 95. 
 
 » 34 N. Y. 347. 39 id. 330. 3 .Keyes, » Chitty on Bills, 91. 10 John. 331. 15 
 
 166. id. 370. 1 Den. 583. 33 Barb. 18. 6 
 
 '7B0SW.543. 1 Robertson, 588. See Duer, 351. See 15 N. Y. 575. 39 id. 673. 
 
 39 N. Y. 330. 13 Iowa, 463. 
 
208 "^ OF CONTRACTS. , 
 
 § 391. It will not be deemed a diversion of the purpose of a bill 
 or note made to raise money for the accommodation of the payee, or 
 'drawer, if it perform substantially the purpose intended. Thus if it 
 be made for discount at one bank, and be thei;e rejected, and dis- 
 counted at another,^ or if it be intended to raise money for E. and 
 it was applied by hi^i to pay up a judgment or other debt against 
 him, it will be valid in the hands of the person to whom it is nego- 
 tiated, although he knew all -the facts in relation to it.^ A differ- 
 ent rule prevails in Ohio, where it is held that such an application 
 is a diversion, and prevents a recovery upon the note.^ 
 
 § 392. In the English courts, the original jpa/rtial .insufficiency of 
 consideration can be shown where the circumstances permit a defense 
 to a bill or note, but not where there was subsequently to the draw- 
 ing of the bill or making of the note, a partial failure of the con- 
 sideration.* In the latter case, the party injured is left to obtain his 
 remedy by a cross action. Our courts have, however, established a 
 different rule, and in a* case warranting the admission of a defense, 
 the partial failure of the consideration can be shown in mitiga- 
 tion of the recovery.^ 
 
 § 393. In cases where, as in New Tork, the statute has declared all 
 contracts and securities given in violatioi;i of its provisions void, as in 
 the acts restraining usury,* betting and gaming,'' lotteries^ and the 
 like, bills and notes founded on such considerations or tainted with 
 them, are void in the hands of honafide purchasers and under all cir- 
 cumstances. The same rule is true in other states where there are 
 similar statutes on these or kindred subjects.' 
 
 § 394. Where from his being an original party to the bill or note, 
 or from the manner in which he acquired it, a defense may be inter- 
 posed against the holder, the total or partial want of original con- 
 sideration, or its fraud or ill^ality, or the total or partial failure of the 
 consideration may be shown. The following are illustrations of this 
 class of defenses : A note given by one as administrator, " for value 
 received by my intestate," would be void upon its face in any hold- 
 er's hands, because upon its face it gives notice that it was given 
 
 •4Cowen, 567. 38 N. H. 166. « Laws 1837, ch. 430. 3 E. S. (Banks 
 
 "5 Wend. 66. lHm,513,589. 3 Sand. 5tli ed.) 73, § 5. 
 
 115. 5 Den. 339. S. C. 3 Corns. 443. ' 1 R. 8. 662, §§ 8, 16. 3 id. (Banks' 5tli 
 
 ' 16 Ohio, 383. ed) 934, 935. 
 
 * 1 Camp. 40 n. 3 id. 346. ' 1 R. S. 665, § 34. 3 id. (Banks' 6th 
 
 •SCowen, 31. 3 Wend. 431. 43 Barb, ed.) 939. 
 
 633. 44 id. 43. 8 Florida, 34. 19 Cal. •3Cal. 64. 3 Wis. 337. 7Ind.l33.- 33 
 
 147. 37111.175. Aliter, 5 Minn. 448. id. 88. 
 
BILLS OF EXCHANGE AND PEOMISSOEY NOTES. , 209 
 
 ■without consideration ; ^ and for the same reason one given by a 
 member of the vestry of a church, for a debt due from the church, 
 without any consideration moving to him, would be void.' So a note 
 given for the consideration on the purchase of a patent fraudulently 
 obtained ;^ for the price of a chattel fraudulently represented by the 
 vendor to be of value when it is worth nothing,* or when he, at the 
 time of the sale, fraudulently conceals a defect in it,^ is void on 
 account of the fraud entering into its consideration. If given, for a 
 pretended title to lands, of which the grantor is out of possession, the 
 sale being forbidden by the statute ; ° or, to induce the withdrawing 
 of opposition to an insolvent's discharge;'' fraudulently to reduce 
 the payee's property so as to qualify him to be put on the United 
 States pension roll ; * to procure the interest of the payee in favor of 
 the election of the maker to the office of sheriff;' to induce the 
 payee not to bid at the sale of land on execution ; ^'' to suppress a 
 prosecution for assault and battery, or compound a prosecution for a 
 crime ; ^^ by a loser to a winner upon a bet upon the result of ^n elec- 
 tion, after the polls had closed ;^^ to an enemy in time of war ;^* to 
 secure the continuance of an illicit intercourse ; ^* on a consideration 
 in general restraint of trade or marriage ; ^^ given for property pur- 
 chased with the Intention of defrauding creditors ; " to induce a defend- 
 ant to withdraw her defense in a divorce suit ■"' for lobby services 
 with members of a legislative body ; ^ 1;^o a party for influencing a 
 public officer in the di^chai-ge of his duties ;'' to be paid when a certain 
 party is elected to a certain office ; '" or on a promise that the payee 
 will not give evidence in a pending suit, and will suppress or with- 
 draw depositions in which third persons may be interested,'^ in these 
 and such like cases the consideration is illegal. Atid so generally where 
 the agreement on which the note is given is repugnant to the general 
 
 ' 8 Jolin. 130. '= 15 John. 57. 16 id. 438. 7 Taunt. 
 
 '3Gill& John. 64, 439. 
 
 '8 Mass. 46. 31 Mo. 338. »5Cowen, 353. 4Demo,439. 
 
 ' 15 John. 230. " Edw. on Bills, 343. 5 Denio, 434. 6 
 
 ' 3 Hill, 606. Ind. 300. 6 Cal. 358. 
 
 " 3 E. S. 691, § 6. " 30 "Wend. 34. 4 Hillt434. 10 Barb. 
 
 ' 3 Caines, 313. 9 Mass. 433. 3 Seld. 369. 
 
 176. 4 John. 419. 13 id. 806. " 13 Ohio N. S. 338. See 35 Barb. 383. 
 
 »4Qreenl. 415. 6 Mass. 438. 4 id. 373. '» 4 Kern. 389. 34 Barb. 533. 36 id. 474. 
 
 »3nalst. 54. , 5 Wis. 300. 
 
 " 3 John, Cases, 39. 33 Mo. 833. "34111.614. 33 Barb. 518. 
 
 "lYerg.430. 1 Ashmead, 68. 5 Verm. "I Minn. 94. 
 
 43. 5N. H. .553. Ohio (cond.) 843. " 15 Cal. 387. 
 
 " 8 John. 454. 34 Ind. 35. 
 
210 OF CONTEACTS. 
 
 policy of the common law, or contrary to the provisions of any statute.* 
 Where a note is given for a particular purpose which fails or is vio- 
 lated in its negotiation ; ' as by bail in consideration of a judgment 
 against his principal which is afterward reversed ; * for lands, the 
 title to which had previously been sold upon a judgment, or for goods 
 to which the vendor has no title ; * for a conveyance of land void 
 from defect of form ; ' for the price of an article the property of 
 which never passed ; * given by a testator for the trouble the donee 
 would have as his executor, the donee dying before the testator,' or 
 given instead of a receipt to a debtor who pays a part of his debt 
 before it is payable,* or given as the price of goods fraudulently 
 sold and which have been returned, or offered to be returned,' the con- 
 sideration has failed and the bill or note is void. A note given upon 
 the settlement of a doubtful claim will, however, be upheld on the 
 ground that the compromise furnishes sufficient consideration with- 
 out regard to the legal validity of the claim." So, liability upon 
 prior endorsements, or an agreement to delay the prosecution of a 
 note, unless it is in violation of the laws against usury, fiirnishes a 
 valid consideration for a bill or note," and a note made or endorsed 
 for the accomniodation of another, although without consideration 
 between the original parties, is valid in the hands of the person to 
 whom it has been negotiated with knowledge of the circumstances, 
 on the ground of the consideration passing from him to the maker or 
 endorser upon its purchase.-'' ( 
 
 § 395. The foregoing rules in relation to the defense of an action 
 upon a bill of exchange may be illustrated by a reference to the bill 
 of exchange, a form of which is given in section 3i5. Suppose John 
 Doe, the drawee, should after having accepted it, refuse payment to 
 James Jackson, the payee, and Eichard Eoe, the drawer, should be 
 obliged to pay it himself, and should then bring his action against 
 John Doe, the acceptor. Doe might show in his defense either that 
 he owed Eoe nothing, and had received nothing from him in con- 
 sideration of accepting the bill, and therefore was not bound to pay 
 it ; or that he accepted it to hush up a prosecution for stealing, or 
 
 ' 11 Iowa, 133. 12 id. 398. Edw. on ' 6 Car. & Payne, 316. 
 Bills, 336. 7 Ind. 133. 11 Wis. 394. 20 '7 Cowen, 333. 
 
 John. 399. 34 Barb. 437. "3 Taunt. 3. 3 Hill, 388. 
 
 = 10 Jolin. 198. " 3 Hill, 504. 18 111. 304. 
 
 ' 3 John. 465. " 7 Conn. 523. 1 Corns. 374. 3 Mich., 
 
 ' 11 John. 50. 615. 30 How. U. 8. 843. See 6 Iowa 
 
 » 7 Mass. 14. 350. 
 
 "IN. H. 174. 7 Mass. 14. "7 John. 363. 
 
BILLS OF EXCHANGE AST) PE0MI8S0ET NOTES. 211 
 
 for some other illegal purpose ; or that the consideration upon which 
 he accepted it had failed, either wholly or in part ; or that there was 
 never a fuU consideration for the bill, but only one for a part of it, 
 and thus defeat the whole recovery, or reduce its amount. In like 
 manner, if James Jackson, the payee, on failing to collect the bill 
 from John Doe, the acceptor, should bring his action against Kichard 
 Eoe, the drawer ; Koe might in the same manner show a want, 
 insufficiency, or illegality, or failure of consideration, in order to 
 defeat Jackson or reduce his damages ; and if Jackson had endorsed 
 it to James Stiles, and Stiles should bring his action against him, 
 Jackson might show the same want, insufficiency, illegality or failure 
 of consideration in the transfer from him to Stiles, or he might show 
 that the endorsement was conditional, as that Stiles should first sue 
 the acceptor to judgment and execution, and only look to him in the 
 event of his failing to obtain it in that manner. In the same manner 
 in the ease of the promissory note in section 351, if Roe, the maker, 
 is sued by Jackson, the payee, he can show the same things, in his 
 defense, either to defeat or reduce the recovery ; and if Jackson had 
 endorsed it to Stiles and Stiles should bring his action upon it 
 against him, he could interpose the same defenses. The reason of 
 the rule in each of these cases is a privity of contract between the 
 immediate parties, and they know, or are presumed to know 
 whether the bill or note is fair and upon a valid consideration. But 
 with regard to the other parties this reason does not existr They are 
 assumed to be ignorant of the transactions out of which the bill or 
 note arose, and to have purchased it, relying upon all the presump- 
 tions of law in favor of its legality, and trusting only to the solvency 
 and responsibility of the original parties to it. They are, therefore, 
 called innocent or hona fide holders, and the policy of the law is to 
 sustain their claims, however viciously other parties have acted, or 
 whatevqi* objections on account of the consideration may exist. In 
 the case of the bill of exchange, therefore, James Stiles, to whom James 
 Jackson, the payee, had endorsed it, might recover against either John 
 Doe or Eiohard Eoe, the drawer or acceptor, notwithstanding the 
 existence of either of the groimds of defense above mentioned, as 
 between them or either of them, and James Jackson ; and in like man- 
 ner, the endorsee of the note could have recovered against the maker, 
 notwithstanding either of these defects existing as between maker 
 and payee. But if Stiles, the endorsee of the bill or note, brings his 
 action against the acceptor of the bill or the payee of the note, they 
 may show, 1st, that Stiles paid nothing for it ; or 2d, that though he 
 
212 . OF COKTEACTS. 
 
 did pay for it, he knew or was informed of the defense which existed 
 to it as between the original parties ; or 3d, that he purchased it after 
 its maturity, and having shown either of these facts he may prore 
 the defense with the same effect as he might to Stiles' endorser. If, 
 however, the hill or note was endorsed to another person by the 
 payee before it became payable, and was then by him endorsed 
 to Stiles" after it became payable, Stiles is not liable to any defense 
 which could not have been interposed had it been sued by his 
 endorser.^ 
 
 § 396. Notes are sometimes made with a view to oblaining- the 
 endorsement of a friend for the accommodation of the maker, where 
 the endorser is unwilling to endorse for the whole amount, but agrees 
 in writing to become an endorser for a part of it. In this case, if it 
 be negotiated for such amount, it is held to be an original note for 
 such sum. As if A make his note payable at a certain bank to the 
 order of B, for $2,500, and B declines endorsing it for that sum, but 
 writes to the cashier of the bank that he will endorse it for $750, and 
 the note is by him discounted for that sum, it is heM to be a note 
 for $750 only, and under the ancient system of pleading might be 
 declared upon as such.* "Where, however, a note is given for a spe- 
 cific sum, evidence that at the time of giving it, it was agreed 
 between the parties that an account which the "maker had against the 
 payee should be deducted from it, is not admissible.^ If, however, 
 after the note is made, there be any payment upon it, it can be shown 
 as against the payee, or any one who received it after it became pay- 
 able.* 
 
 § 397. It has been held that if a bill or note payable on demand, 
 or at sight, or so many days after sight, be negotiated so long after its 
 date as from this circumstance alone, or from this and other circum- 
 stances combined, to raise a presumption that it has been presented 
 for payment and dishonored, the acceptor or maker is entitled to 
 his defense in the same manner as if it had been payable at a day 
 certain and transferred after that day ; that there is no precise time 
 in which the presumption that it has been dishonored will be raised ; 
 and that this musf depend on the circumstances of the case and the 
 situation of the parties ; and that when these are shown the question 
 is one of laV for the court to determine.^ In one case where there 
 
 '1 Camp. 383. Udhn.SQl. 11 Wend. * 17 Wend. 190. 
 
 f)04. 46 Barb. 170. lSUton,528. Id. 533. "7 John. 70. 9 id. 344. 4 id. 234. 3 
 
 13 La. An. 126. 35 Ga. 546. 18 Ind. 464. Caines, 369. 10 Barb. 371, 3. (See 28 id! 
 
 « 17 Wend. 431. 616.) 11 Mich .501. 
 
 " See 5 Minn. 448. Ante, § 109a. 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 213 
 
 were no peculiar circumstances to explain it, a transfer two and 
 a half months after date, was held sufficient to let in a defense/ But 
 a distinction is now drawn between notes so payable, with interest, 
 or without interest, it being held in England, ^ew York (in sub- 
 sequent Cases), and elsewhere, that where they are so payable with 
 ■interest, they are not overdue until an actual demand.^ ' The same 
 rule may yet be applied to those which are thus payable on demand 
 without interest. When days of gi-ace are allowed, a note is not 
 overdue until they have expired.* As we have before seen,* the pre- 
 sumption is that a transfer was made before the note became due. 
 The fact that a note had several endorsements upon it is insufficient 
 evidence of its trcmsfer after its maiui-ity.^ 
 
 § 398. Where a bill or note is payable to bearer, or payable to the 
 order of a payee and by him endorsed to a third peason, if the holder 
 transfers it by delivery without endorsement, the effect of the transfer 
 so far as the rights of the acceptor or maker and the transferee are con- 
 cerned, is the same as if transferred by endorsement. But such a trans- 
 fer does not create the liability which the law imposes upon an endorser.^ 
 As between the parties to a transfer, whether by delivery or endorse- 
 ment, the law implies a warrant;^ that the holder transferring it owns 
 it, and that the bill or note is not forged, even though the contract 
 was that the transferree should take it at his own risk ; ' also that 
 there is no legal defense to its collection arising out of his own con- 
 nection with its origin,* and that it is not worthless to his knowledge 
 by reason of payment, failure of the maker, &c.' In an action 
 brought by the holder upon such a bill or note, it is not necessary to 
 show any other title to it than his possession of it, until the defendant 
 has opened &e way for a defense by showing that th6 plaintiff is not 
 a hoiia'fide holder for a valuable consideration, in the same manner as 
 in the case of an action by an endorsee .■^'' 
 
 § 399. In aa action by an endorsee against the drawer, it is a good 
 <jLefense that the plaintiff holds the bill merely as the agent of the 
 payee and for collection, and that the latter has requested the defendant 
 not to pay it to the plaintiff ; and the same defense may be set up in 
 
 ' 7 John. 70. Edw. on Bills. 389, &c. « CMt. on Bills, 371. Edw. on BUls, 349. 
 
 ' 4 Bam. & Cress. 335. 6 Dow. & Ry. Story on Pr. Notes, § 117. . 
 
 §79. 9 Mees. & "W. 15. 33 N. Y. 38. 8 ' 15 John. 340. Edw. on' Bills, 188, &c. 
 
 Hill, 583. 37 Barb. 79. 43 id. 50. See WK-.Y. 476. Ante, § 351. 
 
 38111.397. ' »20N.Y.336. 33Barb.51«. 
 
 » 8 Iowa, 334. » 30 N. Y. R. 287. 
 
 *§380. "Ante, §§380, 388. 
 
 ' 1 John. 319. 
 
214 OF CONTRACTS 
 
 an action by a second endorsee against the maker of a note.* For- 
 merly, however, an agent might bring an action upop a check or note 
 payable on demand to himself, or to bearer, and the defendant could 
 not defend on the ground that the plaintiff was not the owner .^ And 
 it was also held that, the owner of a negotiable bill or note might 
 bring an action upon it, in the name of a person having no interest in 
 it, and that it was no defense that it was brought without the know- 
 ledge or authority of the nominal plaintiff.' The Code of Procedure, 
 by requiring that all actions shall be brought in the name of the party 
 in interest, has changed this rule in New Tork.* Similar rules are 
 now held by the decisions, or are contained in the statute laws of 
 many of the states of the Union, under which, as in 'New Tork, the 
 party in interest must bring the action. 
 
 § 400. In ISTew York, previous to the E-evised Statutes, no action 
 could be sustained at law upon a lost bill or note which was negotia- 
 ble, if it had been endorsed or otherwise transferred, whether before 
 or after it was payable.^ In"ow, however, it is provided that " In any 
 suit founded upon any negotiable promissory note or bill of exchange, 
 or in which such note if produced might be allowed as a set-off in the 
 defense of any suit, if it appear on the trial that such note or bill was 
 lost while it belonged to the party claiming the amount due thereon, 
 parol or other evidence of the contents thereof may be given on such 
 trial, and, notwithstanding such note or bill was negotiable, such 
 party shall be entitled to recover the amount due thereon, as if such 
 note or bill had been produced ;" " but to entitle a party to such 
 recovery he shall execute a bond to the adverse, party in a penalty at 
 lest double the amount of such note or bill, with two sureties, to be 
 approved by the court in which the trial shall be had, conditioned to 
 indemnify the adverse party, his heirs and personal representatives 
 against all claims by any other person on account of such note or bill, 
 and against all costs or expenses by reason of such claim."^ A check 
 is a bill of exchange within this statute.' 
 
 § 401. The statutory provisions contained in the preceding section 
 apply onh/ where the lost bill or note is negotiable. If it were not, a 
 recovery might be had at common law without the offer of any 
 indemnity, upon simply proving the existence of the note and its 
 
 '6 Mass. 480. 10 John. 333. " 10 John. 104. 3 Wend. 550. SC'owen, 
 
 ^ 7 Cowen, 174. See 7 Bosw. 640. 303. 
 
 ' 15 Wend. 640. » 3 R. S. 406, §§ 75, 76. 3 id. (Banks' 
 
 ■ * Code of Procedure, § 111. 7 Bosw. 5th ed.) 691, §§ 106, 108. See 28 Cal. 561. 
 649. ' a E. D. Smith, 548. Id. 657. 1 Abbt 
 
 148. 
 
BILLS OF exciia:s^ge and peomissoet notes. 215 
 
 loss.* This rule is not changed. And the court will not presume a 
 lost note negotiable. The fact mustj^e proved in order to bring it 
 within the statute.''' "Where the paper is negotiable and endorsers 
 have been charged upon it, the indemnity must be offered to both 
 maker and endorsers in order to maintain the action.' To enable the 
 plaintiff to recover, he must by the express terms of the statute 
 show that the note belonged to him when lost.* The giving of the 
 statutory bond in case of the loss of the paper mentioned in the 
 statute, is an indispensable prerequisite to a recovery theieon.' The 
 plaintiff may recover under this statute, although the bill, note or 
 check was lost after the action was commenced.* 
 
 § 402. The evidence, at common law, need not be that the bill or 
 note is absolutely destroyed. Proof that it is so lost that the defend- 
 ant cannot afterwards be compelled to pay the amount to a ionajide 
 holder, will authorize a recovery.'' But under the 'statute it must 
 appear that it was lost by time, mistake, or accident ; and proof that 
 the party who seeks to recover upon it, deliberately and voluntarily 
 burned it himself, will not authorize the introduction of other evi- 
 dence of its contents.* If it was accidentally destroyed (not simply 
 lost, as to which case only the statute applies), as where it was burned, 
 a recovery may be had without indemnity.' 
 
 § 403. Prior to the Code, it was the rule that in an action upon a 
 lost bill or note, the plaintiff himself was a competent witness to 
 prove the loss, but nothing more. The reason was that the loss was 
 a fact for the court and not for the jury, and did not form a substan- 
 tial ground for the recovery, but simply excused the production of 
 the best evidence of the demand in order to let in secondary evi- 
 dence. The existence of the note must then be proved by other 
 competent evidence. And where a party was admitted to proVe the 
 loss, his adversary might be sworn to disprove it, and to account for 
 it.'" But the Code, allowing parties to be witnesses in all ca;ses,*' 
 undoubtedly so changes this rule that the plaintiff may not only swear 
 to the loss, but upon all other questions that can arise relative to the 
 note, or bill, or check in controversy. 
 
 ' 10 John. 104. 3 Wend. 344. K. S. as "1 Abbott, 148. S. 0, 3 E. D. Smith, 
 
 in last section. 548. 
 
 ■^ 13 "Wend. 173. 3 id. 344. 10 John. ' 3 Cowen, 303. 
 
 104. ' 13 "Wend. 173. 
 
 = 3HiU,483. '16N.Y.583. 
 
 * 3 Barb. 545. " 3 B- S. 406, § 74. 3 id. (Banks' 5th ed.) 
 
 • 1 Hilton, 530. 3 Barb. 545. 690, § 105. 
 
 " Code, § 399. 
 
216 OF CONTliACTS. 
 
 1 4:04:. No distinction is made in this statute between securities lost 
 before or after tliey become due. Wliere tlie lost bill or note is nego- 
 tiable and it has come into the hands of a hona fide purchaser for 
 value before it is payable, and under eirciimstances which would not 
 excite suspicion in a prudent man, such purchaser can recover tipon 
 it, and the original owner who lost it will consequently lose all his 
 right of action ; ^ and if it be paid by the acceptor or maker after it 
 is due and without notice of the loss, even to one who is not a hmia 
 fide holder* the payment is good.^ 
 
 § 405. The loss of a note may be implied from lapse of time.* In 
 an action brought in 1815 upon a lost note made in 179Y, the court 
 held that, after so great a lapse of time it was incumbent on the 
 defendant to show that thte note then existed, or that it had been 
 demanded of him.* 
 
 § 406. In England it has been held that an action cannot be main- 
 tained upon one part of a bill cut in two to be sent by mail, the other 
 half being lost.^ It would seem, however, that this case would come 
 within the provisions of the ISTew Tork Kevised Statutes in regard 
 to lest notes, as given a/nte, § 400.^ 
 
 § 407. Where a part of a bill or note has been torn from it and lost 
 by accident, it is sufficient that, Upon the trial, the fact is shown in 
 connection with the portion of the note remaining, when it is offered 
 in evidence.' 
 
 [§ 407a.] There are statutes in the other states, or decisions, which 
 provide for and regulate recoveries on lost paper therein. It would 
 too much encumber this Treatise to give them in full.. It is better, 
 therefore, to leave the justice or practitioner in each state, to refer to 
 the law in the state, without general references to it here.^ 
 
 § 408. The obligations of the parties to a bill or note, and the man- 
 ner of enforcing and discharging them, are here examined under the 
 following heads : 
 
 1. The obligations of the drawer and endorser of a bill, before 
 acceptance. 
 
 2. The obligations of the acceptor of a bill and the malcer of a 
 note. 
 
 3. The obligations of the drawer and endorser of a bill after 
 
 ' Chit, on Bills, 277. Edw. on id. 308, ' 3 Camp. 324. 
 
 &c. 'SeealsoGWend. 378,disappa'OTi]ig, 3 
 
 « OMt. on Bills, 378, 386. \ Camp.^ 334, supra. 
 »4Greenl. 38. '3 Ham. 18. 
 
 " 3 GaUis. 351. » See 38 Cal. 561. 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 217 
 
 acceptance, and of tlie endorser of a note, and the manner of charging 
 tli«m witli their payment. 
 
 4. The manner in which parties to a bill or note may he discharged 
 from their liability. 
 
 5. When the receipt of a bill or note for a precedent debt is a 
 payment. 
 
 6. When a bill or note is evidence of money received for the 
 plaintiff's use, or lent, or paid for the maker. 
 
 § 409. (1.) The obligations of the droMer and endorser of a hill 
 hefore aGcepto/nce. In drawing a bill of exchange and delivering it to 
 the payee, the drawer agrees absolutely and irrevocably to the payee 
 and every subsequent holder fairly entitled to its possession, that the 
 drawee is capable of binding himself by his acceptance ; that he is to 
 be found at the place where he is described to reside in the bill, if a 
 place be mentioned in connection with his name ; that upon the bill 
 being presented to him he will accept it in writing upon the bUl 
 according to its tenor ; and that upon it becoming payable he will, 
 upon presentation for the purpose, pay it. On a failure, in either of 
 these particulars, the drawer upon proper notice will be immediately 
 liable to the holder of the bill for its amount.'^ The theory is, that 
 the drawee has funds of the drawer, and therefore, if he refuses to 
 accept, the drawer should be notiiied at once, in order that he may 
 take proper measures to indemnify himself.^ Where the acceptance 
 is refused, or it be only partial or conditional, or in any manner 
 limited, and the drawer be properly notified of the fact, an action 
 lies against him without waiting to demand payment from the drawee 
 when the biU becomes payable.' And it will not affect this right, 
 though after the action be commenced the bill be presented for pay- 
 ment.* If the drawee has no funds of the drawer, or be not indebted 
 to him, the drawer becomes liable to the drawee for the money he 
 pays upon the bill, in an action for money paid to his use, but not 
 upon the biU itself.' 
 
 § 410. Should the holder of the bill either neglect altogether to 
 present the bill for acceptance, or if accepted, should he neglect to 
 present it for payment at the time and place where it is payable, and 
 in case of non-acceptance or non-payment, should he neglect to give 
 
 • Edw. on Bills, 378, &c. Chit, on Bills, N. Y. E. 586. 3 Mass. 557. 1 Day, 11, 
 
 214. 4 Hill, 311. 44 Barb. 313. 8 Mass. 460. 
 
 2 4 Hill, 311. ' * 8 Mass. 460. 
 
 = Chit, on Bills, 316. 3 HUI, 337. 37 ' Chit, on Bills, 595, 596. 7 Wend. 337. 
 
 31 id. 503. 4 Hill, 313. 
 
 28 
 
218 , OF CONTEACTS. 
 
 notice to the drawer, lie thereby discharges him from liability, unless 
 he is able to prove that the drawee had no funds, or as it is legally 
 called effects, of the drawer in his hands to pay the bill. The want 
 of effects will excuse the holder's laches in this respect, for there is 
 - then no chance that the drawer can sustain any damage for want of 
 presentment or notice that the bill is not accepted or is not paid.^ 
 But if the drawee have effects to never so small an amount at the 
 time the bill is drawn, even though before acceptance they are appro- 
 priated, or if the bill be drawn under such circumstances as might 
 induce, the drawer to entertain a reasonable expectation that the bill 
 would be accepted and paid, the drawer is entitled to have it pre- 
 sented, and to receive notice of non-acceptance or non-payment.^ 
 "Where, however, he informs the payee that he has withdrawn the 
 funds on which the bill was drawn, or forbids the drawee to pay it, 
 of which the drawee informs the payee before it is payable, no 
 demand or notice is necessai-y.* 
 
 Further instances where presentmeiit and notice, or either, are 
 excused, will be found infra sections 440, 441, 442. 
 
 § 411. Effects in the drawee's hands, in order to require notice, 
 should generally be money or an indebtedness to the drawer ; but 
 actual value in his hands is not necessary where the bill is drawn 
 with a iona fide expectation of assets to meet it ; * as upon the faith 
 of consignments not yet come to hand, the deposit of short bills or 
 policies, or even title deeds, upon which it is expected money will be 
 raised, a mercantile agreement, or where the drawer has accepted 
 cross-bills,^ or where there are mutual dealings and an open account 
 between the drawer and drawee, and the latter has received consign- 
 ments upon which he has accepted bills, but owing to a fall in the 
 market the consignment is not sufficient to meet them.^ 
 
 § 412. The liability of an endorser of a bill to his endorsee, and to 
 every one to whom it is subsequently negotiated, is the same as that 
 of the drawer, with this exception : the want of effects in the 
 drawee's hands forms no excuse for not giving the endorser notice of 
 
 ' 38 Barb. 390. 17 "Wend. 94. 1 Denio, * 3 Term. 713. 1 Esp. 303, 833. 3 Bos. 
 
 367. Chitty on Bills, 800, 356. 1 Hall, 78. & Pul. 339. 15 Bast, 316. 16 id. 43. 3 
 
 4 Sand. 130. 1 E. D. Smith, 400. Edw. Barn. & Aid. 619. 4 Cranch, 141. 1 Har. 
 
 on Bills, 397. 25 N. Y. R. 178. 13 Abbott, & Gill, 468. 7 Har. & John. 381. 8 Barn. 
 
 139. 1 Bosw. 335. 7 Ohio N. S. 381. 34 & Cress. 610. 6 Bing. 633. 3 Camp. 503, 
 
 111. 183. . • 40 111. 378. 
 
 = 30 John. 146. Chitty on. Bills, 358. ' Chitty on Bills 369. 
 
 '3 Nott & McCord, 251. Id. 357, " Ry. & Mood. n. p. 84. 30 John. 146. 
 
 note a. 4M;ason,113. 4 Hill, 263. 13 East, 171. 16 id. 43. 
 
BILLS OF EXCHANGE AND PEOmSSOET NOTES. 219 
 
 the dislionor of the bill, although he endorsed it for the accommoda- 
 tion of the drawer.^ His endorsement is considered equivalent to the 
 drawing of a new bill upon the drawee, excepting that he is in no case 
 liable to the drawee or acceptor.^ And the engagement of both 
 drawer and endorser, is generally upon the condition that the bill 
 shall be presented to the drawee for his acceptance, if payable at a 
 day certain at or before that time, and if payable at sight, or at a cer- 
 tain time after sight, within a reasonable time after it is drawn, and 
 that if he fails to accept it ; or, after it is accepted, if he fails to pay 
 it at its maturity, that the holder shall give them notice.' The rule 
 in relation to the necessity of notice is, as in other cases, that where 
 the drawer or endorser can by possibility suffer an injury or damage 
 by the neglect to give notice, they have a right to strict notice, unless 
 it is waived or is forfeited by their own fraud ;* but where it appears 
 clearly that they could suffer no injury from the want of notice, it is 
 excused.^ ^ 
 
 § 413. Neither the bankruptcy, insolvency, imprisonment or death 
 of the acceptor, though known to the drawer, will excuse a present- 
 ment for payment and notice ;° nor will the fact that the drawee 
 informs the drawer before presentment for payment that he will not 
 pay it.' The demand in case of bankruptcy, insolvency or imprison- 
 ment, should be made of the acceptor and his assignee ; and in case 
 of his death, of his executor or administra,tor, if there be one, and if 
 there be neither, at the house of the deceased.^ It is held in Indiana 
 that notice of non-payment to a guarantor is unnecessaiy where the 
 maker of the note is notoriously insolvent' See infra § M2. 
 
 § 414. If the drawee make a conditional or partial acceptance, or 
 in any way qualifies or limits it, so as to differ from the terms of the 
 bill, notice must be given to the drawer and endorsers, in the same 
 manner as if the bill had not been accepted, in order to charge them.'" 
 The limited acceptance will however be good against the acceptor 
 according to its terms and conditions." An acceptance payable at a 
 particular place in the town or city in which the drawer resides, 
 
 » 7 Mass 449. CMtty on Bills, 357. ' 3 Camp. 107. 
 
 » Chitty on Bills, 367. ' Chitty on BUls, 860, 386, 398. Edw. 
 
 » CMtty on Bills, 3Q1. 1 Pet. 35. 3 id. on id. 487, 488. 
 
 170, 
 
 » 6 Ind. 163. 
 
 * 4 Rand. 558. Chitty on BUls, 481, 484. '» Edw. on Bills, 145, 383. 5 Seld. 583. 
 "17 "Wend. 94. 4HiU, 363. 13 Barb. 636. 11 Iowa, 57. 
 
 • Anth. N. P. 305. 12 Wend. 110. 1 " Chitty on BiUs, 330, 360. 7 Greenl. 
 Serg. & E. 334. 16 id. 157. Edw. on 136. 11 Iowa, 67. 
 
 Bills, 486. Chitty on id. 360. 14 Wis. 
 380. 
 
220 OF CONTEACTS. 
 
 where tlie bill is addressed to him generally at that towiii or city, is 
 good;^ but mating the bill payable at a different place from that 
 in which the drawee resides is a. material departure from its tenor, 
 and requires notice of non-acceptance.^ If a biU is addressed to the 
 drawee at a particular house, and accepted* generally, the present- 
 ment must be at that house.* 
 
 § 415. The notice of non-acceptance, as well as the notice of non- 
 payment, which will hereafter be treated of, is good if the bill has in 
 fact been dishonored, although the party giving it had no certain 
 knowledge of the dishonor.* The notice may be given orally or in 
 writing, and if the drawer or endorser to be notified resides in a 
 different place from where the presentment is made, it may be given 
 by folding it in the form of a letter and transmitting it by mail on 
 the same day or the succeeding business day, as on Monday, if the 
 bill was dishonored on Saturday.^ "Where given by mail, it is pro- 
 vided by statute in New York that it shall be sufiicient, if directed 
 to the person to be notified at the city or town where he resided at 
 the time of drawing or endorsing the bill, unless he, at the time of 
 aifixing his signature to it, shall in addition. thereto specify thereon 
 the post-ofiice to which he may require the notice to be addi'essed.® 
 The presentment for acceptance, and giving notice of non-acceptance 
 is termed charging the drawer or endorser, and unless they are so 
 charged, their liability to pay the bill ceases.' When the bill is 
 accepted, and is not paid on presentment afits maturity, a notice of 
 the demand for payment and of its dishonor, is necessary to charge 
 the drawer and endorser, and in this respect the rule is the same in 
 relation to promissory notes. The doctrine will be more fully exam- 
 ined in considering the obligations of the drawer and endorser of a 
 bill, and of the endorsers of a note after acceptance. 
 
 § 416. (2.) The ohUgations of the acceptor of a hill and the maker 
 of a note. The acceptor of a bill and the maker of a note stand in 
 the same relation to all the other parties to it. In case either does 
 not pay at maturity, they may be sued by the holder or any of the 
 parties ^?ho has paid it. And unless it be paid at sight, or at a speci- 
 fied time after sight, it need not be presented for payment before the 
 action is brought, notwithstanding it is payable on demand or at a 
 
 '19 N. Y. 477. 31 Barb. 403. 11 » Edw. on Bills, 615. 4 Wend. 566. 16 
 
 Ohio N. S. 39. Barb. 146. 2 Hilton, 81. 
 
 "31 Barb. 403. 13 id. 636. ° Laws of 1835, cb. 141. 3E.S.(Banis' 
 
 »41Pa. 214. 3Ind. 414. Sib ed.) 71, § 24. 
 
 * Edw. on Bills, 614. 4 Ellis & Black. ' Chit, on Bills, 465. 
 615. 
 
BILLS OF EXCHANGE AND PE0MIS80EY NOTES. 221 
 
 specified time and place. But a tender of payment at tlie specified 
 time and place will prevent interest accruing and the costs of the action, 
 although it does not discharge the debt.^ And one case holds that 
 the maker or acceptor may show that he had funds at the specified 
 place in hstv of damages and costs.' It is no defense to either 
 acceptor or maker, that the hill or note was not presented until long 
 after it was payable, nor that indulgence has been given by the holder 
 to the other parties. They are liable to pay the amount with interest 
 from the maturity of the bill or note, unless it is drawn to bear 
 interest from a certain day, in which case it is computed from that 
 day.' If the bUl or note is drawn simply " with interest," the 
 interest is computed from its date.* If either express no time when 
 it is payable, it is deemed payable immediately, and interest is also 
 computed from its date.' Where a note is made payable at a certain 
 day without interest, or at a rate less than the legal interest, " and if 
 not paid then, with lawful interest until paid," on default of payment 
 at the day, it draws the rate of lawful interest from its date.* On a 
 note made in one state and payable in another, the interest is recov- 
 erable according to the legal rate of the place where it is payable, 
 and upon an acceptance it is computed at the legal rate in the country 
 where it is accepted.^ One case holds, that if a note is payable on 
 demand, with interest, it can be allowed only from the date of an 
 actual demand.* If payable at a certain time, with interest, it bears 
 interest from its date, 
 
 § 417. An acceptor of a bill and 9. maker of .an note are not liable 
 to a drawer or endorser for the costs which they have incurred in an 
 action brought against them upon a default in payment.^" 
 
 § 418. Prima faoie the acceptor of a bill is the principal debtor 
 and liable to the drawer upon it, and cannot therefore bring an action 
 against the drawer upon it, even if it be accepted for his accom- 
 modation. If he pays it raider such circumstances, his action should 
 be for money paid to the drawer's use, and not upon the bijl." 
 § 419. The acceptor of a bill, where the name of the drawer is 
 
 '17 Jolm.248. SCowen, 371. SWend. ' 8 John. 189, 374. 15 Wend. 308. 3 
 13. 15 N. T. 339, &c. 7 Baxb. 653. Denio, 13. 1 Kern. 406. 
 Lalor, 119. 17 Wis. 459. Tlie rule in ° 15 Mass. 177. See 11 Ind. 393. 7 id. 
 England is different, a demand at tlie 184. 
 
 place being necessary in such cases. 3 ' 1 Paige, 330. 3 id. 604. 33 Tex. 108. 
 Taunt. 397. ° 1 Daly, 155- 
 
 "41111.367. ' " '8 031.145. 
 
 3 19 Ark. 16. " 3 Conn. 101. 6 Cranch, 358. 31 Mo. 
 
 '3 Burr. 1077. 1 Stark. 452. 580. 
 
 "4 Hill, 311. 
 
222 OF CONTEACTS/' 
 
 forged, is bound to pay it, for the reason that he is bound to know 
 the handwriting of the drawer, and that he cannot be permitted, 
 after acceptance, to dispute it.* 
 
 § 420. (3.) The obligations of the d/rawers cmd endorsers of a Mil 
 after acoeptanoe, and of the endorsers of a note. After the accept- 
 ance of a bill, the engagements of the drawer and of each endorser 
 to the holder, and that of an endorser of a- note to the holder are 
 much alike. Each agrees with the holder that the bill or note is 
 genuine, that it was accepted or made by the parties by whom it 
 purports to have been made, was endorsed by all the prior endorsers 
 whose names appear upon it, that it is a valid and legal instrument ; 
 and that he is held upon his contract as endorser, although the bill 
 or note was made by a minor, a married woman, by an agent of a 
 principal who died before it was made, or is a forgery.^ The endorser, 
 by his endorsement, also agrees that if the bill or note be presented 
 for payment, to the acceptor or maker, at its maturity he will pay it ; 
 and, in case he fails to do so, that upon receiving legal notice of the 
 demand for payment and the non-payment, he will pay it.'* The 
 obligation is strictly a conditional one. The bill or note, on the day 
 it is deemed payable, must be presented at the place of payment, if any 
 place is specified, and if no place is specified, personally to the acceptor 
 or maker, or at his place of business, if he has any, and if he has 
 none, at his- residence, and a demand of payment made. If there 
 are two or more acceptors or makers, the presentment and demand 
 must be made of each of them, unless they are partners, in which 
 case they may be made of either partner.* If the bill or note is not 
 paid, the drawer and endorsers must be notified of the presentment 
 and demand for payment and of the non-payment, in order to charge 
 them, and if not so charged their obligation ceases.* If a note has 
 been protested for non-payment, and the liability of the endorsers 
 fixed, and the endorsers sell the note, without erasing their endorse- 
 ment, they will be responsible for its payment, though no notice be 
 given them of its non-payment bv the maker.' The endorser's legal 
 liability, as given above, may be either limited or enlarged, at his 
 pleasure, at the time he endorses, providing he includes the same in 
 his endorsement. But if he does not, its legal effect cannot be varied 
 by a cotemporaneous parol agreement.' 
 
 'IBinn. 27. 19 N. Y. 479. ■• 5 Hill, 232. Edw. onBais, 160,400. 
 
 '7 Pick. 291. Edw. on Bills, 289., &c. 24 Mo. 594. 7 OWo, N. S. 281. 
 378. Story on Pr. Kotes, § 135. ' Chit, on Bills, 465. 
 
 ' Story on Pr. Notes,' § 135. " 31 N. Y. 441 
 
 ' 27 Barb. 489. 
 
ETLLS OF EXCHAl^GE ANV PEOMISSOEY NOTES. 223 
 
 § 421. The notice of demand for payment and of non-payment 
 may, in IS'ew York, as in case of the notice of non-acceptance, be 
 given orally or in "writing ; and if the drawer or endorser resides at a 
 different place from the holder, it may be sent by mail. If by mail, 
 it may be directed to the party sought to be notified, at the city or 
 town where he resided at the time the biU was drawn or endorsed, 
 or the note made or endorsed, unless at the time of affixing his sig- 
 nature to it, he, in addition to the signature, specified the post-office 
 to which he requires the notice to be addressed.^ Prior to this statute 
 of 1885, the rule in relation to mail notices required them to be 
 sent to the one nearest the party's residence, or where he received 
 his letters.''' 
 
 § 422. The presentation for acceptance of bills, and the presenta- 
 tion and demand of payment of biUs and notes, may be made by a 
 notary public, who is also authorized to protest them for non-accept- 
 ance and non-payment ; and the Eevised Statutes of New York fur- 
 ther provide : " In case of the death or insanity of any notary 
 public, or of his absence or jemoval, so that his personal attendance 
 cannot be procured in any mode provided by law, the original pro- 
 test of such notary, under his official spal, upon such seal and his 
 signature being duly proved, shall be presumptive evidence of the 
 fact, of any demand of acceptance or of payment, therein stated."^ 
 A subsequent statute further provides that " in all actions at law, 
 the certificate of a notary, under his hand and seal of office, of the 
 , presentment by him of any promissory note or bill of exchange for 
 acceptance or payment, and of any protest of such biU or note for 
 non-acceptance or non-payment, and of the service of notice thereof 
 on any or all of the parties to such bill of exchange or promissory 
 note, and specifying the mode of giving such notice, and the reputed 
 place of residence of the party to whom the same was given, and 
 the post-office nearest thereto, shall be presumptive evidence of the 
 facts contained in such certificate ; but this section shall not apply 
 to any case in which the defendant shall annex to his plea, an affidavit 
 denying the fact of having received notice of non-acceptance or non- 
 payment of such note or bill."* Among commercial men the prac- 
 tice is to leave bills and notes either with a bank which employs a 
 notary, or with a notary himself, for presentation and demand of 
 payment, and charging the drawer and endorsers, instead of attend- 
 
 ' Laws of 1835, supra § 415. "SB. S. 383, § 46., 3 id. (Banks' 5tti ed.) 
 
 m John. 331. 5Demo, 339. 8 Corns. 474, § 34. 
 443 4 Barb. 334. > <■ Laws of 1833, ch. 371. § 8, 3 R S. 
 
 (Banks' 5tli ed.) 474, § 35. 
 
224 OP CONTBAOTS. 
 
 ing, themselyes, to tke demand and giving of notice. A notary pub 
 lie cannot delegate his official authority to another;* and therefore 
 when it is shown that he did not perform the service, or the certifi- 
 cate given ])j him necessarily implies that he did not (as when it 
 stated that he " caused " it to he done)^ the certificate is not evidence.* 
 But the facts of the presentment and giving of the notice may be 
 proved by the person who in fact did it for him.* The notary also 
 may be sworn instead of using his certificate, or other competent evi- 
 dence may be given of his action in the premises.* 
 
 [§ 422a.] We have above given only the JSTew Tork statute rela- 
 tive to notarial certificates. It would take too much room to give 
 the statutes or other rules relative to such notarial certificates or 
 notices, in the other states. 
 
 § 423. Where the time of payment is not specified in a bill, cheek 
 or note, it is payable immediately upon presentation.^ When such 
 bills or notes are endorsed to the holder, if .he wishes to charge the 
 drawer, or an endorser, he must be diligent in presenting them for 
 payment. The general rule is, that they must be demanded within 
 a reasonable time after they are negotiated, and the question what is 
 such reasonable time, depends upon the circumstances of each par- 
 ticular case f as the distance of the parties from each other, the fre- 
 quency of the mails between them, the business and affairs, or the 
 health of the holder. He is not compelled to present such a bill or 
 note, or a check, or a draft, on the same, day it is issued and received 
 by him, but he may in all cases defer doing it to any time during^ 
 business hours of the next business day.' It is, however, prudent 
 where the parties reside in the same place, to present it for payment 
 the next morning after it is received, and if the acceptor or maker 
 resides at a distance, to transmit it for payment by the next mail. It 
 will, however, be sufficient in such case if it is mailed, for the pur- 
 pose of having it presented, on the day after it is received.' But 
 unless there is some substantial reason to excuse it, it must not be 
 delayed beyond that day.' It need not be sent by the most direct 
 
 '3Hm,ti3. 4 id. 139. 133. 81 N. T. 382. 26 Barb. 651. 34 
 
 » 3 HiU, 53. 3 Seld. 266. id. 349. 53 id. 338. 2 Bosw. 500. 1 Eo- 
 
 ' Seld. 366. ■bertson, 375. 3 Hilton, 273. 5 Cal. 328. 
 
 '15 Wis. 253. 23111.635. 13 id. 308. 24 id. 339. 46 111. 435. Chitty 
 
 ''7Ind. 1. 6 id. 437. 34 Cal. 339. on Bills, 413. Edw. on Bills, 386. 
 
 "47 Maine, 113. 11 Mich. 501. 13 Cal. ' Chitty on BHls, 415, 16 and 17. See 
 
 308. ' 38 Barb. 616. 
 
 ' 3 John. Caa. 5, id. 359. 2 Oaines, » 9 Jlart. (Lou.) 336. 3 Marsh. 454. 
 
 369. 6Cowen,484. 7 id. 705. 13 Wend. 
 
BILLS OF EXCHANGE AND PE0MI8S0ET NOTES. 225 
 
 route, if that is not the customary method of transmission between 
 the two places. A bank check is within the rule governing other 
 bills in relation to charging endorsers.^ If a note is payable in 
 installments, and a demand is not made on the maker until the last is 
 due, and "then the demand is made for the whole, an endorser will be 
 charged for the last installment only.' The books are full of cases 
 where in giren instances, it has been held that the presentment 
 was, or not in a reasonable time. They are not more particularly 
 referred to, as the general rule to be deduced from them is as stated 
 above. A note payable on demand " with interest," is a continuing 
 security, and no delay in presentment is, of itself, suflBcient to dis- 
 charge an endorser.' 
 
 § 424. The rule in relation to delay laid down in the preceding 
 section is operative between immediate parties ; but the ultimate 
 presentment of a bill or note, payable on demand, cannot be delayed 
 an unreasonable time, by successive transfers between numerous 
 parties, and by each party transferring it to another on the day after 
 he received it. If by such a proceeding, an unreasonable delay is 
 occasioned, the parties first transferring the bill or note would proba- 
 bly be regarded as discharged from their liability. And if there 
 were the least reason to doubt the solvency of the drawee or maker, 
 a holder who should not present it, or forward it for presentment and 
 payment in due season on the next day, or transfer it, would forfeit 
 all claim upon the person who had endorsed it to him.'' 
 
 § 425. At common law where acceptances or notes are payable at a 
 specified time after sight, or at a specified time after date, or upon a 
 particular day, a certain period is allowed after the time limited for 
 the payment of the note. This in this country is three days, which 
 are termed days of grace? Thus an acceptance payable at a speci- 
 fied time after sight, is in fact payable on the third day after it is 
 seen and accepted. If it be accepted on the first of the month, it is 
 payable on the fourth, and so with a bill or note payable at any 
 specified time. Where, however, the last day of grace falls upon 
 Sunday, or on any holiday, or on any day on \^ich by usage or 
 statute, presentment may not or cannot be made, the previous day is 
 considered as the last day of grace.* Where Sunday and one of the 
 
 > 20 Wend. 193. 31 id. 373. 4 Cal. 35. on id. 403, 404. 3 Cowen, 766. 8 id. 308. 
 
 ! 24 Cal. 379. 4 Seld. 190. 4 Cal. 35. 5 Ohio, N. 8. 13. 
 
 s 23 N. Y. 28. ' 11 id- 89- 10 Iowa, 3 With. 461. 19 111. 
 
 ^ Chitty on Bills, 413, 414. 11 Mich. 598. 
 
 jjQj « 2 Caines, 343. Edw. on BUls, 5^9. 3 
 
 Edw. on Bills, 517, &c. Chitty, Hill, 687. 4 id. 139. 
 29 
 
226 OF CONTEACTS. 
 
 other .days succeed each other, it would seem that there would be 
 but one day of grace, as whpre a note was by its terras payable on 
 the first of July, and th6 third was Sunday, the fourth being also 
 excluded, the note should be demanded upon the second.^ In New 
 York, by a recent statute (Laws of 1865, page 260, chap. 146, § 1), 
 any day appointed or recommended by the governor of the state, or 
 the president of the TJnited States as a day of fast, or thanksgiving, 
 July 4th, Christmas, new year's day, February 22d; "and when 
 said fourth of July, twenty-fifth of December, first day of January, 
 or the twenty-second day of February shall occur on Sunday, then 
 the ensuing day thereto, shall, for all purposes whatsoever, as regard 
 the presenting for payment or acceptance, and of the protesting and 
 giving notice of the dishonor of bills of exchange, bank checks, and 
 promissory notes, made after the passage of this act," be treated as 
 Sunday. And all such paper which but for this act would be due on 
 any of the mentioned days, shall, when said days fall on Sunday, 
 become due and payable on the succeeding Tuesday. Although an 
 acceptance or note payable at dght is usually, also, allowed days of 
 grace,^ yet it has been questioned by high authority, whether they 
 are allowable in such eases in the absence of local custom or posi- 
 tive statute.' And, in New York an express statute has been 
 passed, as follows : " All bills of exchange or drafts, drawn payable 
 at sight, at any place within this state, shall be deemed due and payable 
 on presentation, without any days of grace being allowed thereon."* 
 This statute also goes further, and in section 2 provides, that " all 
 checks, bills of exchange or drafts," appearing on their face to be 
 drawn on any bank or individual banker, " which are on their face 
 payable on any specified day, or in any number of days after the 
 date or sight thereof," shall be due and payable at the day without 
 gi'ace, " and it shall not be necessary to protest the same for non- 
 acceptance." 
 
 § 426. "Where days of grace are allowed, the acceptor or maker has 
 the last of them in which to pay the bill or note, and he cannot be 
 sued upon \t until the day after.'' A presentation and demand, there- 
 fore, must be made upon the last day of gi-ace, in order to charge the 
 drawer or endorser. If made at any previous day, it is a nullity,* 
 
 ' Edw. on Bills, 539, &c. on id. 525. 3Wemd.l70. 40 Barb. 104. 
 
 '38 Mo. 345. 41 id. 33. 11 Smedes&M. 453. 14111.55. 
 
 ' 1 E. D. Smith, 505. 11 Ala. 286. 8 Cal. 626. 
 
 * Laws of 1857, chap. 416, § 1. 3 R. 8. 'Edw. on Bills, 605, 506, 511. Chitty 
 (Banks'5thed.)71, §§27, 28. on Bills, 402. 12 John. 438. 8 Iowa, 394. 
 
 'Chitty on Bills, 402, 406, 7 and 8. Edw. 3 Cal. 144. 5 id. 393. 
 
BniiLS OF EXCHANGE AND PE0MI8S0ET NOTES. 227 
 
 and it is not helped by the- notice stating the demand to have oeen 
 made on the proper day. This is the case also where the hill or note 
 is not negotiable ■; that is, they cannot be presented till the day they 
 are due.'^ 
 
 [§ 426a.] Checks, drafts, notes not payable at a specified time 
 and non-negotiable notes are not entitled to any days of grace.^ 
 And also in New York, by Session Laws of 185T, eh. 416, referred 
 to ante § 425, all checks, bills of exchange or drafts drawn on 
 any bank, banking association, or individual balnker carrying on 
 banking business under the banking act, which are payable at a 
 future day or time, are payable without grace, and on that day or at 
 that time. 
 
 § 427. When a bill or note is drawn payable at a certain time after 
 sight, or after demand,, or after date, or after a certain event, the day 
 of presenting the bill for acceptance, or the note for payment, or its 
 date, or the happening of the event, is to be excluded in computing 
 the time.* Thus, if a bill payable ten days after sight, be accepted 
 on the first day of the month, the ten days would expire on the 
 eleventh, and the addition of the three days of grace would extend 
 the time when it became actually payable to the fourteenth. So if 
 a note dated the first day of September, be drawn payable at two 
 months after date, the two months would expire on the first of 
 November, and the days of grace being added, it would be actually 
 payable on the fourth day of November ; and before that day no 
 demand can be made which will charge .an endorser, unless there 
 should be a less number of days of grace by reason of the last one 
 or two being excluded by reason of their being Sunday or another 
 excepted day.* 
 
 § 428. In the computation of time in a bill or note, a month is 
 taken to be a calendar month,' and the period from the first or any 
 other day of any month, to the corresponding day in the next month, 
 is regarded a month, and where one month is longer than the suc- 
 ceeding one, it is not necessary to go into a third month in order 
 to complete the period. Thus, where a bill dated on the 28th, 
 29th, 30th or 31st of January, is drawn payable one month after 
 date, the month in each case will, in ordinary years, expire on 
 the 28th day of February, and in the last three cases, on the 29th 
 
 ■ 6 Term K. 133. ' 1 R. 8. 606, § 4. 3 id. (Banks' 5th ed.) 836. 
 
 »Edw. on Bills, 533, 535. 4 Seld. 190. 37 Mis. (8 George,) 567. 31 Cal. 393. 33 
 
 '4 Bosw. 398. id. 347. 3 Wallace U. S. 177. 
 * Bdw. on Bills, 514, 515, supra § 435. 
 
228 OF CONTRACTS. 
 
 day of February in a leap year,^ and the days of grace are tlien to 
 be added. 
 
 § 429. If tbe bill or note be payable at a certain place, in order 
 to cbarge the drawer and endorsers, it must be presented there^ 
 and demand of payment made upon the last day of grace, aad 
 if not paid, notice of the presentment, demand of payment and non- 
 payment, must be given to them on the same day or the next day.^ 
 If the note is presented for acceptance (the same being payable a 
 specified time after date, or on a day certain), on the day it is due, 
 no further demand of payment is necessary, to charge the endorser.' 
 If the note be payable at a bank, it is sufficient if it be left there for 
 collection upon the ofay it is payable.* And if so left, it is a sufficient 
 demand, though, the maker haying no funds, it was returned to the 
 holder before the expiration of the last business hour.^ It is neces- 
 sary that the bill or note be present when the demand is made, so as 
 to be rea^y for delivery upon its being paid, and this is so, although 
 the maker is insolvent and is absent from the state.^ It is prudent 
 always to leave a bill or note with a notary public to make the 
 presentment and demand of payment, and if it be dishonored, to 
 protest and give notice to all parties to it, in order that his certificate 
 may furnish convenient evidence that they were charged, in case it 
 becomes necessary to bring an action upon it.'' It is not necessary, 
 however, that the presentment and demand be made by a notary ; 
 any person may be authorized by the holder to do it, and give the 
 notice to the party to be charged.* If a demand is made at the place 
 designated by the maker, of a person who represents hipaself to be 
 the maker, it is prvma facie sufficient.' So if notice is left with a 
 clerk in a store, carried on by a person of the same name as the 
 endorser, the maker telling the notary that the endorser resided 
 there, it is gooi, although the endorser's store was elsewhere in 
 the city.^" 
 
 § 430. If it be not payable at any particular place, it must as a 
 general rule be presented to the acceptor or maker personally, or at 
 his place of business, or his dwelling-house, and the demand for pay- 
 
 ' Chitty on Bills,. 406. Edw. on id. 515. 
 17Ind. 320. See 7 id. 319. 
 
 »Edw. on Bills, 496. 13 Abbott, 139. 
 Sess. Laws N. Y. 1857, referred to ante, 
 §§ 435, 438a. 7 Cal. 166. 8 id. 636. 19 
 .Tolin. 391. 44 Barb. 69. 
 
 '37 N. Y, 586. 3 John. 303. 
 
 ' r Wpiid. 160. 6 Mass. 534. 3 Hall, 
 
 113. Lalor, 119. 
 
 Edw. 
 
 on 
 
 Bills, 
 
 497. 
 
 
 
 
 »35]Sr. Y.178. 
 
 
 
 
 '13 Pick. 132. 
 
 
 
 
 'See ante, §433, 
 
 
 
 
 = 18 John. 330, 
 
 3 Seld. 269. 
 
 
 «8Seld.366. 
 
 
 
 
 "» 33 Barb. 543., 
 
 
 
 
BILLS OF EXOHASGE ASD PEOMISSOEY NOTES. 229 
 
 ment there made, in order to charge the drawer or endorsers.* It 
 will make "ho difierence in the rule, if his residence be in a foreign 
 state or country at the time the bill be accepted or the note be made.' 
 If the acceptor or maker resided within the state when the bill was 
 accepted or the note was made, and he afterward removes to a for- 
 eign state or country, a presentment and demand need not be made 
 at any place f if he has only changed his residence to another 
 place within the state, the demand must be made there.* If he should 
 abscond or have no known place of residence, no presentment or 
 demand is necessary.^ If the notary goes with the bill to the maker's 
 or acceptor's residence, to make the demand, but finds the doors 
 closed, and no one there to answer it, this is a good demand.' It is 
 a general rule that service at the place of business must be during 
 business hours; but service at the residence may be made at any 
 reasonable hour.'' That the drawer or endorser has gone on business 
 to a distant city, to be absent several weeks, is not such an Absence 
 or change of residence as to allow notices to be sent to him at that 
 city.^ If the maker of a note payable at no particular place, make 
 an assignment, and his assignee carries on business at the maker's 
 old place, still the demand must be made at the maker's place of resi- 
 dence.' It will not excuse a personal presentation, if the acceptor or 
 maker after endorsement, without the knowledge of the endorser, 
 make a memorandum on the bill or note that it will be paid at a par- 
 ticular place and the holder should present it there, if theacceptor 
 or maker be not there at the time.^° A parol agreement made at the 
 time a note was made, that it should be payable at a certain place, 
 although ffone be specified in it, will not be suiHeient to warrant the 
 presentation there." If a bill be accepted or a note be signed by an 
 agent, the principal being abroad, it may when payable, be demanded 
 of the agent, if his principal shall continue abroad.^' If by partners, 
 and one of them have died, the presentment and demand of the sur- 
 
 • Edw. on Bills, 495, 6. CMttyonid. ' Edw. on Bills, 159, 484, &c. 3 Sneed. 
 
 398. A Iowa, 476. 30 N. Y. R. 309. 37 id. 435. 33jyto.567. 3Denio,145. 4 Mass. 
 
 634 19 John. 391. 6 Ohio, N. S. 543. 45. 
 
 19 111. 598. 33 Mo. 431. 14 Wis. 408. " 33 How. V. S. 368. • 
 
 ' 3 Denio, 145. 1 Corns. 331. Edw. on ' 14 Wis. 408. 
 
 Bills, 485. »14 0hio,N. 8. 89. 
 
 » Edw. on Bills, 159, 485. 34 N. Y. 38. ' 5 Duer, 336. 
 
 30 id. 309. 14 John. 114. 17K.H.37. See '» 19 John. 391, 
 
 14 Wis. 380. " 8 John. 193. 
 
 *StoiyonPr. Notes, §336.' »3 Taunt. 306. 8 Mass. 360. SCaines, 
 
 131. 
 
230 OF CONTEACTS. 
 
 vivor at 'his place of business is sufficient.* But notice to one ol 
 fieveral joint endorsers would, it seems, not be notice to all.' 
 
 § 431. No particular form of words is necessary in presenting a note 
 or bill and demanding payment.^ All that is reqtisite, is that it should 
 be exhibited to the person who should pay it, or in the cases where he 
 cannot be found, and the presentment is permitted at his place of busi- 
 ness or residence, that it be there exhibited, and when exhibited, words 
 made use of indicating distinctly a request or demand of payment. 
 
 § 432. If the acceptor of a bill or maker of a note die before its 
 maturity, the presentment and demand must be made of his executor 
 or administrator, if there be any, and if none, then at the house of 
 the deceased.* If he has failed and made an assignment, for the 
 benefit of his creditors, the demand cannot be made of his assignee.' 
 
 § 433. Where a bill or note is made payable at a bank which is 
 accustomed to close at a particular hour in the day, the holder is 
 bound to be acquainted with its usages, and must present the instru- 
 ment for payment during its business hours, or within the time 
 allowed by the bank for that purpose.* Indeed, the doctrine that 
 parties dealing with a bank are bound by its usages, has been held to 
 incorporate si^ch usages into the contract between them in a variety 
 of other cases, where the usage is known to them ; as where the cus- 
 tom of the bank is to present bills and notes on ^efoiirth instead of 
 the third day, or where it treats a particular day as a holiday, 
 though it is not legally known as such, and makes demands and gives 
 notices on the previous day.' Although the general rule as to pre- 
 sentinent is as above stated, yet a presentment at a later hour, even 
 in the evening, is good, if there be an officer of the bant there to 
 answer it f and so is one at the bank door, after business hours, when 
 the notary cannot obtain admittance, if the maker has no funds there." 
 The maker, however, has the whole day to pay in ; though he at 
 first refuses, and the notice of non-payment is served, he may subse- 
 quently, and on the same day make the payment." If the note is not 
 payable at bank, the notice may be given at the close of the usual 
 business hours, o;* if there are none, then after sunset.** » 
 
 " 2 Hill, 635. ' 19 Mass. 155. 15 id. 303. 4 id. 345. 
 
 » 16 "Wis. 495. 7 Ohio, K S. 381. In- 6 id. 249. - 8 Pick. 414. Edw. on BUls, 
 
 fra § 437. 519, &c. 
 
 'Infra, §434. '17N. Y. 46. 3 Met. Ky. 804. 
 
 * Chitty on Bills, 388. " 17 N. T. 46. 
 ' 11 Md. 148. 5 Duer, 236. "" 41 Barb. 33. 
 
 • 17 John. 248. 17]Sr.Y.46. 4Cal.28. "4Cal. 38. 
 8 id. 630. 3 Met. Ky. 304. 
 
BILLS OF EXCHANGE AND PROMISSOET NOTES. 231 
 
 § 434. Except in the cases already mentioned where a notice to 
 the drawer is excused, and except in the ease of a bill of exchange 
 where the drawer and endorsers were charged upon the drawee refus- 
 ing to accept it, in which case, no further proceedings are necessary 
 in' order to render them liable, the holder of a biU or note, must, on 
 its non-payment, if he would render the previous parties to it liable, 
 give them notice thereof.^ This is necessary, as well when the accep- 
 tor or maker cannot be found, as when they are found and refuse to 
 pay.^ It is not necessary that it should be in any particular form, 
 but it must import distinctly that the biU or note has been presented 
 for payment and payment refused or neglected.' A statement therein 
 that the bill or note is protested for non-payment, is sufficient to 
 show a presentment and refusal of payment, especially when there 
 is added that the holder looks to the endorser for payment.* It 
 may be oral, or in writing.* It may be given by the holder himself, 
 or by any other person,* but as it is necessary to prove it in an action 
 upon the bill or note, it is safer to have this done by a third person 
 who can be a witness. If the notice was an oral one-, and it appeared 
 from the conversation, at the time, that the endorser knew what note 
 was referred to, the notice is sufficient, though the note was neither 
 produced nor specifically described.'' 
 
 § 435. The notice is usually in substantially the following form : 
 
 " To Mr. James Jackson : 
 
 The note made by Kichard Roe [or the bill drawn by James Den 
 on Eichard Eoe], dated May 1, 1869, and payable to the order of 
 John Doe ten days after date, and by you endorsed, has this day been 
 presented to the maker \_or if a hill, to the acceptor], and payment 
 thereof demanded, but it was and is unpaid and dishonored. I am 
 the holder thereof and look to you for its payment. 
 
 Dated May 1, 1869. Tours, &c., 
 
 John Stiles." 
 
 This notice must be signed, but the signature may be a printed 
 one.' It is desirable that the bill or note should be described with 
 
 '§ Infra, 436. Supra, §429. » 4 "Wend. 566. 16 Barb. 146. 3 Hil- 
 
 = 1 McCord, 339. ton, 81. 14Cal.l60. 14 Iowa, 299. 
 
 "3 Hill, 587. 1 Corns. 413. Edw. on "32111.535. 
 
 Bills, 595, &c. Supra, §431. 14Cal.l60. '14 0al.l60. 16 Barb. 146. 
 
 4 id. 313. 33N.T.K.114 5Seld.379. 3 » 38 N. T. 546, 561. 44 Barb. 313. Edw. 
 
 id. 19. 50 Barb. 44. on Bills, 629. 
 
 * 2 Kern. 551. 1 Corns. 413. 1 Wis. 
 264. 9 Midi. 209. 
 
232 OF COSTTEACTS. ^ 
 
 certainty in tlie niotice, in order to leave no question in relation to it. 
 If, however, it reasonably apprize the party, of the particular paper 
 upon which he- is sought to be charged, it is sufficient,^ and if suffi- 
 cient in this respect, it is not bad, although there be a mistake in it 
 which is not calculated to mislead the party on whom it is sei-ved, as 
 an error in the date, amount, name of maker or acceptor.^ It should 
 show, affirmatively, a presentation to the person upon whom the 
 demand of payment should properly be made, and that person's 
 name.' If it correctly describes the note, this is sufficient, although 
 it does not state its number, and it appears there were several other 
 notes outstanding at'the time precisely like it, and the number was 
 the only means of making a, precise indentification.* If the notice 
 describes the note in some particulars, it may be shown that there 
 was no other note in existence to which that description could be 
 applied.* It is sufficient that the notice, dated the day the note is 
 payable, states its amount and the names of the parties, there being 
 no proof that any otlier note existed to which the notice might refer .^ 
 It is a rule in these cases " that if facts exist which render " a notice 
 " uncertain or equivocal, and the knowledge of these facts is con- 
 fined to the endorser, or is not brought home to the holder of the 
 paper, the notice is sufficient to' charge the endorser."'' Notices 
 have been held insufficient when the note fell due September 9, and 
 the notice was dated the tenth, and stated that the note " was this day 
 protested;"^ where the endorsers were notified that the note "had 
 not been paid, and that they would be held responsible for the pay- 
 ment thereof," but not stating any demand ; ' and where the demand 
 was made at maturity, but the notice' stated it to have been made on 
 a different day.'" But where the endorser wrote the initial of his 
 Ohristain name so blindly (though in his usual manner), that the 
 notary in good faith read the initial A. C. instead of M. as it really 
 was, and so directed his notice, it was held sufficient." In cases of 
 mistake, when the notice is sufficient on-its face, the question whether 
 the misdescription misled the party, is a question of fact.^ "Where, 
 
 'IGN. Y.-518, 520. 28 id. 559. 32 id. "SKem. 551. Sise 23 K. Y. 131. 38 
 
 114. 36 id. 100. 1 Tianscript, 75. 4 id. 545. Id. 561. 
 
 Bosw. 533. 6 id. 179. 4Cal.313. 9 Mich. '38N. T. 561. 
 
 309. M4 Barb. 313. 
 
 n Corns. 413. 3Seld.l9. 11 Texas, "llMd. 148. Also 50 Barb. 44. 
 
 585. 6 Ohio, N. 8. 543. =" 5 Cal. 393. 
 
 niWia.56. WN. Y. 518. "SON. Y. 336. 
 
 *33N. Y. 114. "5 Barb. 681. 1 Corns. 413. Infra, 
 
 » 1 Corns. 413. 3 8eld. 19. § 438, sub. 8. Edw. on Bills, 613. 
 
BILLS OF EXCHANGE AHD PEOMISSOET HOTES. 233 
 
 however, tliere is no question about the facts, the sufficiency of the 
 notice is one of law, and should not be left to the jury.^ 
 
 § 436. The notice must be given by the holder or some one author- 
 ized by him, or by one who is liable as an endorser. It is not enough 
 if given by one who is a stranger to the bill or note.^ The holder 
 may give the notice to any or to all the earlier parties to it, and thus 
 charge such of them as he pleases, and each one so charged is liable 
 individually to him upon it. And any one who is charged, upon pay- 
 ing it may call upon any of the earlier parties who have been charged, 
 the rule being that the notice enures to the benefit of all the ante- 
 cedent parties.' It is, however, prudent for each party, upon receiving 
 notice of the dishonor of a bill or note, immediately to give fresh 
 notice to each of the parties who would be liable over to him, for as 
 the holder need notify only such as he pleases, it may be that he has 
 charged no one else.* Such notice an endorser may give on the day 
 he receives notice of the dishonor, or the next business or secular day 
 after, if the party reside m the same town, or by the next business 
 day's mail, if in a different place, as on Monday if the notice is 
 received on Saturday. If sent by mail, it must be by the next conve- 
 nient and practicable one.' • If no mail leaves on the day after notice is 
 received, or the paper is dishonored, it is sufficient to put the letter into 
 the post-office in time to go by the next mail thereafter.^ It is the prac- 
 tice in some states for the notary to inclose notices for all the parties to 
 the last endorser, he being the only one whose residence is supposed 
 to be known to the holder.' 
 
 § 437. An agent or one who has received a bill or note for collec- 
 tion merely, is considered as the real holder for the purpose of receive- 
 ing and transmitting notice of its dishonor.* In Massachusetts it was 
 held that a notice to the drawer from the drawee of his non-aecept- 
 ance of a bill was not sufficient to charge him.' In the English courts, 
 however, notice of the dishonor of a bill from the acceptor to the 
 drawer was held sufficient in an action by the endorser against the 
 
 ■3 Hill, 587. 5 Barb. 490. Infra, §438. 615, &c. 3 Camp. 308. 1 HiU, 363. 31 
 
 sab. 8. Edw. on Bills, 613. N. T. 485. Story on Pr. Notes, §§ 331, 
 
 = 3 Wend. 173. 16 N, Y. 339 44 Barb. 334. 7 Bosw. 466. 6 Ohio, N. S. 543. 8 
 
 313. Edw. on Bills, 476, 636, &c. CMtty Cal. 636. 
 
 on id. 537. - " Edw. on Bills, 633. Chitty on id. 531. 
 
 "CMtty on Bills, 538. Edw. on id. 637, 9Ind. 381. 
 
 &c. 35 Barb. 138. 17 Wis. 151. 33 Mo. '3Ind. 176. Id. 316= 
 
 313. « Edw. on Bills, 639. 3 Hall, 113. 44 
 
 « 5 Co-wen, 803. 34 N.Y. 138. 3Ind.316 Barb. 313. 
 
 » Chitty on Bills, 533, &c, Edw. on id. "14 Mass. 116. 
 
 30 
 
234: OF CONTEACTS. 
 
 drawer.^ It is not sufficient notice to leave the note with the endorser 
 who is an attorney, for collection of the maker.^ Where two or 
 more payees endorse their individual names, and not as partners, it , 
 is necessary to give all notice, in order to charge either.' 
 
 § 438. The foUovdng is a synopsis of the rules, governing the man- 
 ner of serving notices of non-acceptance and non-payment, upon the 
 parties to bills or notes in the several cases which ordinarily arise.* 
 
 1. At common law, where the party to be notified, resides in the 
 city or town where the bill or note is payable, the notice should be 
 delivered to him personally, or left at his place of business or resi- 
 dence.^. But if his niame is not on, the directory of the city in which 
 he resides, and neither his residence or place of business can be ascer- 
 tained, by the person employed to give the notice, after diligent 
 inquiry, the notice is waived." If the notice is left at the endorser's 
 place of business, in business hours, it is enough that it is delivered 
 to a person in the office, although there is no proof that he was in the 
 endorser's employ, and the notary made no inquiry relative thereto.' 
 But leaving it at the hotel where he resides, it not appearing that it was 
 given to any one authorized to receive it, nor that the endorser was 
 then in, nor that any inquiry was made for him, nor that the notice 
 was handed to any one to deliver to him, is insufficient.' 
 
 By statute, however, the rule in New York has been so changed that 
 the notice may there be served by depositing it, properly directed, 
 and prepaid, in the post-office of the city or town where the party 
 to be served resides, or whenever that place is indicated by him as his 
 residence, under his signature or endorsement, or whenever, after 
 diligent inquiry he is reported to 'reside or have a place of business 
 there, provided that was the place where the promissory note or 
 other security was payable, or legally presented for payment or accept- 
 ance.' 
 
 2. Independent of the above statute, where he resides in the same 
 
 '4 Camp. 87. But this case has been ''10 John. 490. 11 id. 331. 30 id. 373. 
 
 criticised, and is undoubtedly against the 4 Hill, 139. 5 id. 336. 8 Kern. 549. 6 
 
 general rule. In Bayles on Bills, 5th ed. Cal. 435. 
 
 354, it is said that it " might, perhaps have ' 8 Seld. 366. If no inquiry was made 
 
 been on the ground that the acceptor of the holder it would be insufficient. 5 
 
 wrote for the plaintiff, and as his agent." Duer, 83. 
 
 Bee Story on Pr. Notes, § 303 in note (3). ' 4 Duer, 313. 
 
 44 Barb. 314. ' 15 Ark. 415. 
 
 Ml John. 180. "Laws of 1857, ch. 416, §3. 3 E. S. 
 
 H Cowen, 136. (Banks' 5th ed.) 71, § 39. 34 Barb. 453. 
 
 * See ante, § 430. 25 id. 138. 9 Bosw. 305, 7 id. 466. 39 
 
 N. Y. 187. 6 Transcript, 159. 
 
BILLS OF EXCHANGE AND PKOMISSOET NOTES. 235 
 
 city or town where it is payable, but bas made a temporary removal, 
 tbe notice may be left at bis last place of residence/ and if that be 
 shut up and he be gone out of town, it may be directed to him and 
 deposited in the post-office.* 
 
 3. Where he resides in a different city or town from that where it 
 is payable, the notice may be sent to him by mail directed to that 
 city or town, unless he has, upon the instrument, directed it to be sent 
 to a different place.* If he adds to his direction both gtreet and 
 number, the notice must be sent there, and one directed to him 
 geinerally is insufficient.* If the notice is deposited in the post-office 
 of a place where the endorser does not reside, not for the purpose of 
 transmission, by mail, but merely as a drop letter, it is not sufficient 
 to charge him.^ The letter may be directed to the post-office where 
 he is accustomed to receive his' letters as well as to that where he 
 resides.* 
 
 4. "When an endorser, after his endorsement, has removed from the 
 place where he then resided, and the holder and his agent had no 
 notice, of his removal, a notice by mail directed to the former place 
 of residence, is good.' This rule is so far modified, in New York, by 
 the statute .of 1835 (referred to in sub. 3 supra), as to make it suffi- 
 cient to send the notice to the place of residence where the note was 
 made, regardless of knowledge, or not, that the person soUght to be 
 charged has removed therefrom. 
 
 5. Where his residence is unknown, the holder or his agent must 
 use due diligence in order to ascertain it.* He should inquire of 
 others whose names appear on the instrument, or others of the same 
 name if any, or of business men likely to know and who are not 
 interested to mislead him.' An enquiry in the post-office or a bar- 
 room, of persons whom he cannot recollect, is not enough.^" If h^ 
 canjiot ascertain the place he must send the notice to the place where 
 the note is dated. If no place appears on the face of the bill or note, 
 he must send it to t|ie place, where, according to the best information, 
 the endorser will probably be found." . 
 
 ' Ante, § 430. 2 Caines, 121. 
 
 '3 Wend. 408. 6 id. 587. 
 
 " 3 John. 374 
 
 ' 13 John. 433. 34 "Wend. 358. 8 Hill, 
 
 'Laws 1835, ch. 144. 3 E. S. (Banks 
 
 530. 3 Corns. 373. 16 N. Y. 335. 30 id. 
 
 5th ed.) 71, § 34. 5Deni6,339. 3 Corns. 
 
 407. 30 id. 336. 33 Barb. 543. 31 Ind. 
 
 443. 35 Barb, lea 
 
 58. 33Cal.l76. 
 
 * 9 Bosw. 305. 
 
 ' 3 Sand. 178. 2 Hill, 587. 
 
 » 4 Mich. 891. 
 
 '» 3 Hill, 530. 
 
 «4 Barb. 334. 3 Seld. 481. 14 Ohio, 
 
 "5 Wend. 587. 
 
 N. S. 89. 
 
 
236 OF CONTEACTS. 
 
 6. Where tlie holder is ignorant of the endorser's residence, he 
 may send a notice with due diligence to a person acquainted with it, 
 with a request to^direct and forward it, and if it is done it will be 
 sufficient.^ 
 
 7. If a drawer or endorser be dead, it should be given to his execu- 
 tors or administrators, if they are known ; if unknown after due 
 diligence to ascertain them, the notice should be served at his late 
 residence, and where in such case his family has removed into the 
 country, a notice sent to them also, is well.^ In case the deceased 
 was one of several joint endorsers, a recovery cannot be had against 
 the survivor, unless the estate of the deceased be so charged.' 
 
 8. The question of diligence in giving the notice, when there is no 
 dispute about the facts, is one of law and is wholly for the court. 
 When there is a dispute in relation to the facts they must be deter- 
 mined by the jury.* 
 
 § 439. The notice should not be given until after the demand and 
 non-payment. If given before the demand, although the demand be 
 afterward made upon the same day, it is a nullity.' 
 
 § 440. In addition to what has been before said, we may add that, 
 regular notice of the dishonor of a bill or note is excused, where it 
 appears that the holder or his agent has used all the diligence which, 
 under the circumstances of the case, he could reasonably be called 
 upon to exercise.^ Thus the sudden illness or death of the holder or 
 his agent, or the prevalence of a malignant fever in the place of resi- 
 dence of the parties,' will excuse the regular notice, if it be given as 
 soon as possible after the impediment be removed f if the notice be 
 served on his return, though if he have had a iixed residence before 
 leaving, a notice should be served there ; or ignorance of the place 
 of residence of the party, if after reasonable diligence he is unable to 
 discover it ; but in order to show such diligence he should apply to 
 persons whose names are upon the bill or note, or others of the same 
 name who can be found.' Within this class of cases, when the holder, 
 on the day after the bill was dishonored, called at the house of the 
 last endorsers to ascertain where the drawer lived, but did not find 
 them, and the next day called again and ascertained and then gave 
 
 '18Jolin.340. 1 Hill; 11. 8 Conn. 489. ' 3 Gaines, S^S. 13 Joiin. 433. Edw. 
 
 ' 17 Jolm. 35. 5 Hill. 336. Edw. on Bills, on Bills, 614. 
 
 681. «3Seld. 366. 83 Cal.'l76. 
 
 ' 5 Hill, 333. Edw. on Bills, 630. ' 3 John. Cases 1. 14 Wis. 380. 
 
 * Supra. § 435. 3 Sand. 188. 14 OMo. » Chit, on Bills., 4!^5. 14 Wis. 380. 
 
 l!T. S. 89. 3 Hill, 587. 3 id. 530. 8 Seld. • Chit, on Bills, 487. 
 366, 374. 
 
BILLS OF EXCHAIfGE A:<fD PBOMISSOEY NOTES. 237 
 
 the drawer notice, it was lield lie was charged.^ The loss of the 
 hill or note, a mistake in directing the notice, or the bankruptcy of 
 the party to be notified, is no excuse for want of notice.* 
 
 § 441. It is provided in New Tork, by statute, that whenever the 
 board of health or any other competent authority, shall by public 
 notice designate any portion or district of the city of l^ew Tork as 
 being the seat of any infectious or contagious disease, and shall 
 declare communication with such portion dangerous, or shall prohibit 
 it, it shall be the duty of the clerk of the city to keep in his office a 
 book in which to register, in alphabetical order, the names and places 
 of business of any persons and firms in such city, who shall desire 
 such registry to be made ; and that all presentment of bills and notes 
 , to such persons or firms for acceptance or payment, may then be 
 made at the place designated in the registry, and notices of non- 
 acceptance or non-payment may be served there during the continu- 
 ance of such disease ; and that in case the name of an individual or 
 firm inhabiting the city, to which a bill or note should be presented 
 • for acceptance is not so registered, the presentment and demand may 
 be made of the clerk of the city during office hours, and notice gf the 
 dishonor thereof be served upon any person or firm to whom it is 
 required to be given, and whose name is not registered, by leaving it 
 in the post-office, directed to the person.^ 
 
 § 442. In addition to the cases above mentioned, notice is also 
 excused where the drawer or endorser is the person ultimately liable 
 to pay the bill or note, or where he by his acts prevents it, or sub- 
 stantially or in express terms waives it. As where the bill or note is 
 accepted for the accommodation of the 'drawer or made for the accom- 
 modation of the endorser,* where the maker is insolvent and has 
 assigned all his property to the endorser to secure his and other 
 endorsements,^ but the mere taking of security by the endorser 
 is insufficient. Consequently, an assignment to trustees for the pur- 
 pose of paying debts, or the taking of a judgment, counter bond, 
 lien, personal mortgage, or a power of attorney to confess judgment 
 or similar security does not excuse notice.^ The notice is excused, 
 
 > ©ow. 81. ' 7 "^eiicl. 165. 3 Denio, 16. 13 Barb. 
 
 = Chit. on Bills, 486, 7 and 8. 13 Wend. 163. 
 
 110. 13 How. Pr. R 166. 14 Wis. 380. « i7 Wend. 489. 3 Kem. -55. 3E. D. 
 
 See 6 Ind. 163, Contra. Smith, 159. 4 id. 458, 13 Barb. 163. 14 
 
 » 1 R. S. 769, §§ 13 to 17. 3 id. (Banks' Wis. 380. 33 111. 38. See also 5 Hill, 335. 
 
 5th. ed.) pp. 68, &c., §§ 13 to 17. 18 Barb. 396. 3John.Ch. 431. 33111.11. 
 
 *Edw. on Bills, 638. H John. 181. 7 
 Wend. 168. 
 
288 OF CONTEACTS. 
 
 also, where before the note became due the endorser informed the 
 holder that the maker had absconded, and requested farther time for 
 payment ;^ where the omission to give notice was owing to the inter- 
 ference of the endorser, representing the inability of a suit and ask- 
 ing indulgence," orgavehis bond to pay it within a month after it 
 became payable f or when the drawer requested the payee to hold it 
 during an indefinite period.* So a stipulation may be given to waive 
 the demand and notice ; but if it be in terms simply to waive the 
 notice, it does not dispense with the necessity of the demand.' But 
 a waiver of " protest;" in a popiilar sense, includes a waiver of demand 
 as well as of notice of non-payment.' The waiver will be effectual 
 if made in such a manner as to induce the holder to believe that the 
 endorser intends to relieve him from the notice f but where the 
 endorser, on the day a note matured, promised the holder to pay a 
 part and renew it for the balance, and the holder by mistake omitted 
 the demand of the maker, it was held there was no waiver or excuse.* 
 A waiver may be by parol, and without consideration.' If the bill is 
 drawn in the course of partnership business, one partner may make 
 the waiver.^" An agreement between the payee and his endorser 
 that the note will not be paid by the makers till fifteen days aftei* 
 maturity, does not excuse demand and notice between the parties, nor 
 does the statement of the endorser of an overdue note " that he had 
 dried fruit with him, and that he would pay the note when he sold 
 it," and " that he felt himself bound for the payment."" On the 
 other hand, it' is held that a promise by the endorser to pay an over- 
 due note operates as a waiver of demand and notice ;^ so where the 
 drawer and acceptor wrote to the holder that the money should be paid 
 before the next term,^^ or where an accommodation drawer admits 
 that he is liable as surety and that the debt is just." 
 
 § 443. This waiver of demand and notice by a promise to pay, may 
 be made after, as well as before the maturity of the bill or note ; but 
 to be good, this yaiver, if made after the paper was due, miist be 
 
 ' 1 John. Ca. 99. ' 10 Wend. 504. 5 HiU, 403. 
 
 '17 Wend. 489. 4 E. D. Smith, 458. 'IGN. H.410. 33Ind.533. 24IU.183. 
 
 'Chitty on Bills, 485. ,5 Barn. & Al. "21 Mo. 46. 
 
 165. "4 Minn. 43. 13 Iowa, 43. 
 
 * 31 N. Y. 644. " 23 Wend. 379. 26 lU. 426. 17 N. H. 
 
 " 11 Wend. 629. 43 Barb. 646. Edw. 27. 15 Iowa, 446. Infra, §§ 443, 444. 
 
 on Bills, 483. 23 Ind. 523. ' " 1 Stai-k. 217. 
 
 «1 Corns. 186. 19 Ind. 110. "13 Ind. 223. 
 
 ' 4 Camp. 281. 
 
BILLS, OF EXCHANGE AND PEOMISSOET NOTES. 239 
 
 with knowledge of the omission of demand or notice.^ Such 
 knowledge need not be shown by express proof, bnt may be infen-ed 
 from circumstances.* The promise, however, must be unconditional, 
 explicit, and proved by the clearest evidence, whether the waiver is 
 express or implied, and unqualified.' In case of doubt as to the 
 effect of the langiiage from which the waiver is claimed, it must be 
 submitted to the jury.* When the party is aware of the omission, 
 his ignorance of the law will not prevent the waiver if the other 
 facts are sufficient.' 
 
 § 444. Demand and notice, or the waiver thereof, wiH also some- 
 times be inferred from circumstances ; as where the endorsers of a 
 note paid a part without objecting the want of notice to charge them f 
 where they wrongfully took possession of the note before it was due, 
 and retained it till after maturity, and did acts showing a primary liabil- 
 ity upon it.'' • But to make a payment a waiver, it must be directly and 
 specifically upon the note, and not as a security for all transactions 
 in the aggregate between the parties.' So the giving of the drawer's 
 note to the holder is a waiver f but declarations addressed by an 
 endorser to a third party " that the want of the notice would make 
 no difference with him, and that he woiild do what was right ; or 
 that lie^ would rather pay the note than be sued," are not waivers.^" 
 So it is not a waiver that the endorser says at the time of endorsing, 
 that the maker has no funds and that the notes will not be paid." 
 
 § 445. Except in cases coming within the principle of those above 
 enumerated, the holder is held to the necessity of demanding pay- 
 ment and giving notice of dishonor to the parties he seeks to charge ; 
 and if he fails to do it they are discharged of their liability,^* although 
 they endorsed for the accommodation of the drawer, maker or acceptor, 
 and whether the drawee had or had not effects of the drawer.^' 
 
 [§ 445(2.j The rules laid down, sujpra, as to demand for acceptance, 
 or payment, and notices of refusal, ajjply only to negotiable paper.^* 
 
 § 446. Where a foreign bill of exchange is presented to the drawee 
 
 '3 John. 68. 5 id. 348. 8 id. 384. 43 'lllnd. 333. 
 
 Barb. 646. 13 How. Pr. R. 166. 7 Wis. »5 Cal. 383. 
 
 161. 11 Iowa, 304. 15 id. 447. 10 Cusli. "9 Cal. 336.. 
 
 159. Supra, § 443. >» 5 Cal. 480. 34 id. 339. 
 
 » 33 Wend. 379. "7 Minn. 74. 
 
 ^ » 8 John. 384. 5 id. 375. Lalor, 133. " 9 Mass. 305. 10 id. 53. 13 id. 89. 
 13 Iowa, 43. 11 East, 114. 1 Serg. & Rawle, 334. 
 
 * 33 Barb. 383. 30 111. 557. " 4 Cranch, 141. 7 Mass. 449. 
 
 5 15 Iowa, 446. " 10 Iowa, 317. 
 
 nTaimt.l3. 30111.557. 
 
24:0 OF CONTEACTS. 
 
 for acceptance, and is dishonored, and is regularly protested by a 
 notary, any one may accept it for the honor of the dra/wer or endorsers. 
 This is called an acceptance sujpra protest. The aeceptor, by his 
 acceptance, then becomes liable in the same manner as the drawee 
 who accepts, and in order to charge the parties, the bill must, at its 
 maturity, be presented for payment to the drawee, and in case of non- 
 payment notice must be served as in other cases.-^ 
 
 § 447. A biU or note may be endorsed after its maturity, in which 
 case, for the purpose of charging the endorser, it is to be treated as 
 if payable at sight, and must be presented for payment, and in case 
 of its non-payment notice must be given within a reasonable time. 
 A bi]l accepted after its maturity is payable on demand. In these 
 cases the holder should take measures immediately to obtain its pay-' 
 ment and to charge the endorser in case of its dishonor.' 
 
 § 448. When a bill or note has been dishonored and drawer or 
 endorsers are properly charged by the holder, they are all liable to 
 him individually for the amount owing upon it, and the expenses of 
 protesting it, if protested f and in JSTew York he may bring his action 
 against acceptor, maker and the other parties or any of them, or may 
 bring an action against each of them if individuals, and as partner- 
 ships, against each partnership liable.* He may thus proceed simul- 
 taneously to obtain judgment against each of them for the amount 
 due him, but he can recover no costs but disbursements in more than 
 one of the actions, which shall be at his election.' He may then 
 issue executions upon all of his judgments, but can 'have but one 
 satisfaction of the amount due upon the bill or note, with the costs 
 against each defendant of the judgment against him.* 
 
 §449. "Where the holder has collected the bill or note of an 
 endorser, the latter may bring his action against any of the prior 
 parties to the bill or note who may have been charged, or against 
 them all, and proceed in the same manner as the holder, to collect 
 the amount due. If he received the bill or note in a business trans- 
 action, he can only, unless there is a special promise, recover the 
 amount owing upon it, notwithstanding he may have paid the costs 
 of a judgment recovered against him by the former holder.'' But if 
 he was a mere accommodation endorser for a prior endorser, or for 
 
 ' CMt. on BiUs, 374. 3 Wend. 488. * Code of Procedure, § 120. 
 
 "9 John. 131. 3 "Wend. 75, 79. 3 Corns. » Code of Procedure, § 804. 
 
 494. 6B0SW. 593. 13Cal. 308. 7 Minn. " CMt. on Bills, 571. 
 
 74. ' '9 John. 131. 
 
 » 10 "Wend. 116. 
 
BILLS OF EXCHAlfGE AND PEOMISSOET NOTES. 241 
 
 the maker, lie can recover from him, in addition to the amount due 
 upon it, the amount of the costs paid by him, as money paid out for 
 his use.'^ But the endorser must not incur any unnecessary cost and 
 expense as by putting in a useless and unjust defense ; if he does, he 
 cannot recover for them.* 
 
 § 450. At common law if the holder of a bill or note wished to 
 resort for paynient to more than one of the parties, except in the case 
 of joint contractors, he was compelled to commence separate actions.® 
 The Code of Procedure of New York, as we have seen {funte, section 
 448), however, provides that " parties severally liable upon the same 
 obligation or instrument, including the parties to bills of exchange 
 and promissory notes, may all or any of them be included in the 
 same action, at the option of the plaintiff." * The same provision was 
 contained in a statute passed in 1832.^ It will be seen that it leaves 
 it optional with the plaintiff to pursue the old remedy by separate 
 actions, or the new one by a single action. 
 
 § 451. The acceptor being prima faoie the debtor of the drawer, 
 the latter may maintain an action against him on the non-payment of 
 the bm, but he may defend by showing that he had no funds of the 
 plaintiff.* No action will lie by the drawer against the drawee on 
 the bill for not accepting, although it would upon his agreement to 
 accept the bill and his failure to do so.' "Where the acceptor accepted 
 for the accommodation of the drawer, and has paid the bill, he can 
 recover the amount paid in an action for money advanced at his 
 request, but not upon the bill itself.** But where, to an accommoda- 
 tion bill, a third person subscribed his name as surety, and then the 
 bill was paid by the accommodation acceptor, it was held that he 
 could not recover the money so paid of the third person.' 
 
 § 452. It has been seen that promissory notes, in order to be nego- 
 tiable, must be payable in money. In ordinary business transactions, 
 notes are frequently made payable in specifip articles, as "to pay 
 twenty dollars in wood at the market price on the 1st of April next." 
 In these cases, if they are made by a farmer, mechanic, manufacturer, 
 merchant or producer, and do not specify any time or place of pay- 
 ment, the general rule. is that the owner of the note must go to the 
 
 • 3 Barb. 634. 5 id. 899, 413. 15 id. " 9 B. & C. 241. Bdw. on Bills, 315, 
 
 318. See 31 Mis. 580. &c. 6 Duer, 583. 
 
 ' 34 Barb. 5467 ' Chit, on Bills, 568. 
 
 ' 28 Geo. 529. ' Cliit on Bills, 568. 21 Wend. 502. 4 
 
 ' Code of Procedure, § 120. ^ Hill, 311. 
 
 ' Laws 1833, ch. 376. ' 36 N. Y. 539. 
 
 31 
 
242 
 
 OF CONTKAOTS. 
 
 farm, shop, warehotise, store, or similar place, and demand the prop- 
 erty specified in the note. And, generally, a man's place of business 
 or his dwelling-hbnse is, in such cases, the place where the demand 
 should be made if the goods are portable.' And that demand is 
 necessary.'' If the note is payable in ready made clothing, by a 
 dealer in such goods, it should be demanded at his store, and may be 
 demanded in parcels at different times ; but the t)wner has no right to 
 demand a garment which has been made for a customer at a stipula- 
 ted price, or in goods boxed up for removal,' nor to mal5;e the demand 
 in unreasonably small parcels.* The rule, as above laid down as to 
 the place, is subject to be modified by the circumstances of each case 
 showing that, in that particular instance, a different place was 
 intended.' Where such a note is payable on demand, a specific 
 demand is necessary, Y^hieh may be made at any place, if not met by 
 an offer to pay at the legal place ; if made there, and at a reasonable 
 hour, it is sufficient, although there is no one there to make the pay- 
 ment.^ If the note is payable at a particular time, but no place is 
 specified, the residence of the creditor is the place of payment, except 
 where it is payable in manufactured, &c., articles ; in which case, as 
 we have seen, the note is payable at the maker's place of business, 
 &c.' But if the note is payable in ponderous articles, at a day cer- 
 tain, the maker ought, if he desires to make a tender, to seek the 
 owner of the note before the same is due, and have a reasonable place 
 named by him for the delivery.' Under the Code of Iowa, § 969, 
 where a note is payable in stock on a day certain, no demand is 
 necessary.' If the note is payable at a particular place, but no time 
 is specified, either party has a reasonable time, under all the circum- 
 stances, in which to make the delivery or to demand payment. If 
 the place of payment is other than the promisee's house, the maker, after 
 making the proper delivery, must notify the promisee without delay that 
 the delivery has been made." "WTiether payable generally, or at a par- 
 ticular place, the articles cannot be tendered when mixed aijd undis- 
 tinguishable irom others ; they must be so separated or distinguished 
 
 '5Coweii,516. 2Denio,145. 20 Wend. « 7 Barb. 473. 
 196. 4 id. 377. 18N.Y.337. 36 Mo. 310. « 3 Denio, 145. 
 
 See as to tbis general subject 3 Story on '5 Wend. 187. 4 id. 377. See, how- 
 Con. |§ 807, &c. Ky. Dec. 166. ever, 1 7 Ind. 137 as to the rule in that State. 
 
 '5 Cowen, 516. 38 111. 397. 14 Iowa, 530. "4 Cowen, 453, 1 Grant's (Pa.) Cases, 
 lo Wis. 170. 1 Oregon, 227. 204. 36 Mo. 310. 
 
 ' 30 Wend. 196. 18 N. Y. 337. • 4 Green (Iowa), 59. 
 
 "18^. Y.S37. '"9 Barb. 403. 
 
BILLS OF EXCHANGE AOTJ PEOMISSOET NOTES. 243 
 
 that the payee may know which he is required to take.^ Where a 
 note was payahle " in merchandise out of my store, 44 Maiden Lane, 
 on demand," it was held that the maker had a right to sell from his 
 stock, so as to have an inferior assortment, until the demand was made ; 
 and that after he had given a reasonable notice to the holder to select 
 his merchandise at the place named, he might remove his stock to 
 any other reasonably convenient place, where only the holder, must 
 thereafter make demand for his payment in merchandise.^ Again, 
 where paper is payable out of the maker's mill and warehouse as the 
 payees may order, the holder may demand payment in such articles, 
 the usual manufacture of the mill, or usually kept in the warehouse, 
 as he may elect to receive ; and the maker's refusal to pay in any 
 such articles, witlfout offering to pay in other proper ones, or these 
 demanded at some subsequent reasonable time, is a refusal to pay the 
 note.* If the note is payable at a definite time and place, the maker 
 must be present and tender the articles.* If a timely selection of 
 the articles is to be made by the payee, who makes none, and prior to 
 the time of payment instructs the maker not to send any of the articles 
 until he gives him notice of what he wants, the maker's liability is not 
 discharged; but the holder may, at anytime afterward, name the 
 articles, unless in the meantime the maker has made the selection ; 
 and if the holder so selects, the maker must pay them in a reasona- 
 ble time.* A note was made payable partly in lumber, " if delivered 
 according to contract," to be sawed at the promisor's mill, within a 
 fixed time. The mill not being in operation till after that time, held 
 that no demand' was necessary before an action for the money.' If 
 payable in " wagon work," that term, unexplained, includes wagons 
 and parts of wagons, and the materials and labor bestowed upon 
 them.'' This case also holds that if the payee has the right to desig- 
 nate any particular kind of wagon work, his neglect to do so before 
 the note falls due is a waiver thereof, and the right then devolves 
 upon the maker, who must make his selection and tender in a rea- 
 sonable time thereafter. On a failure to pay the note, or to tender 
 payment in the manner or at the time or place required by the note, 
 the payee mayT-ecover the amount in money.' But if the note is 
 payable, at the maker's option, in specific articles or money, and the 
 
 ' 4 Cowen, 452. • ' 19 Ind. 24. 
 
 » 18 N. Y. 337. * 5 "Wend. 393. 4 Hill, 164. 2 Seld. 585. 
 
 '15 Ind. 1. 1 Grant's Oases (P».) 204 33 Ala. 668. 27 
 
 M Cowen, 452. IlL 338. 28 id. 397. 20 Texas, 132. 19 
 
 '2 Seld. 585. But see 19 Ind. 24. Ind. 24 
 
 '30 Texas, 132. 
 
244 
 
 OF CONTEACTS. 
 
 maker notifies the holder that he will pay the articles, which are 
 ready, but the holder refases to receive them, the note does hot 
 become a money demand until the holder demands the articles and 
 they are refused.^ Where a demand is necessary, a refusal by one of 
 several promisors is sufficient.^ A declaration of the promisor that 
 he had determined not to pay the note in any manner, it having been 
 demanded in money, is a waiver of a demand of payment in specific 
 articles, and renders him liable to an action for the amount in money.* 
 The decisions as to the negotiability pf this class of notes have not been 
 uniform even in the same state. In 'New York and Iowa they are not 
 negotiable, even though payable to order at a banking house,* while, 
 in the latter state, it is also held, in a prior decision, that a note payable 
 in property to A or bearer is negotiable.® In Lidiana, a note, part 
 of which is payable in a specific article, is treated as negotiable,® as 
 also in Illinois, in regard to one reading thus : " Due "W". G. B. four 
 hundred and fifty dollars, to be paid in lumber at one dollar and 
 twenty-five cents." ' 
 
 §453. The payee endorser of a note not negotiable, is liable to 
 his endorsee as maker of a new note, or a guaranty may be writteh 
 over his endorsement.^ Under the ancient systgm of pleading, where 
 the action upon a note not negotiable had to be brought in the name 
 of the payee, the endorsement was regarded as an authority in the 
 assignee to bririg the action in his name.' 
 
 § 454. (4.) . Of the dis6ha/rg& of parties to a Mil or note, and other 
 swrebies. The holder of a bill or note being entitled to payment of 
 it from each of the parties charged, so long as he does no act which 
 shall prejudice the rights of any one of them against any 6f the 
 others, he may enforce payment from any one of them. But as the 
 acceptor of a bill and the maker of a note are the principal debtors, 
 and the drawer and endorsers stand in some respects as sureties for 
 them," and if called upon to pay are entitled to look to them for their 
 indemnity, it is just that the holder shall do nothing which can 
 suspend, impair, or destroy their rights." The case is the same 
 between diffierent endorsers. Each is a surety for all the previous 
 endorsers who have been charged, and has a right, on the dishonor 
 
 '3 Iowa, 518. '27111.338. Also 28 id. 397. 
 
 "271^338. » 8 Wend. 403. 2 Hill, 84. 40 N. Y. 
 
 » 15 Wis. 170. 491, and notes p. 492, &c. 1 Keyes, 57fi 
 * 20 N. Y. 472. 11 Iowa,_ 173. Id. 85. 10 Barb. 403. 39 id. 42. 3 Cal. 485. 
 
 9 id. 471. ' • 16 Mass. 458. 
 
 ».3 Iowa, 334. Also 9 id. 471. "'2 Corns. 352. _ 
 
 " 15 Ind. 297. " 18 Iowa, 159.' 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 245 
 
 of tiie bill or note, to pay it to the holder, and look to those who are 
 liable to him, for his indemnification. If therefore, where there 
 were three endorsors to a biU or note who were charged, the holder 
 should release the maker, he would discharge the note, and thus 
 prevent either of the three endorsers collecting it of the maker, if he 
 should pay it. So, if he released the first and second endorsers, he 
 would put it out of the power of the third endorser if he should pay 
 the note, to resort to them. In like manner, if, by a valid agree- 
 ment made with the maker or an endorser, he should suspend or 
 impair his remedy against them, it would operate to suspend the 
 right of all the subsequent parties to the bill or note to pay it, and 
 proceed immediately to collect it of those persons with whom the 
 agreement was made.' The law, therefore, in these cases, provides 
 that when the holder by his own acts does anything to suspend, 
 impair or destroy the rights of any of the later parties to a bill or 
 note, without their consent, against antecedent parties who would be 
 liable over to them, he discharge's such later parties.^ The question 
 of benefit or harm to the surety is not the test ; it is whether there 
 has been a material change made.^ 
 
 § 455. A mere indulgence to the maker at the will of the holder, 
 as it does not suspend or impair the remedy of any endorser against 
 him who chooses to pay the holder the bill or note, does not dis- 
 charge the| endorser,* nor does the receipt from the maker of a 
 security on time, if taken with an agreeinent that it shall not pre- 
 judice the holder's remedy against maker and endorser, nor prevent 
 an action against the maker if required by the endorser,' nor a release 
 of one of several joint makers, excepting from such liability as he may 
 be under to the endorsers." In these cases, no injury to the rights of 
 the other parties is done. If, however, the holder release the acceptor 
 or maker, or enter into any valid agreement with him to give him 
 time, it will operate as a discharge of all the other parties ; ' and in 
 like manner, if he discharges the first endorser, he will discharge all 
 who have subseqiiently endorsed ; ' but the releasing a subsequent 
 endorser will not discharge a prior one, nor releasing an endorser 
 discharge the drawer or maker.' The rule has been applied where a 
 
 '16 John. 70. 18 Iowa, 159. '7 Wend. 289. 
 
 '7HiU, 350. 33 N. Y. K. 691. 31 • 2 Caines, 131. 
 
 Barb. 397. 33 Iowa, 153. 31 Mo. 318. ' 4 Corns. 315. 35 N. Y. 479. 23 Barb. 
 
 6 Ind. 138. 13 id. 286. 478. 
 
 "CDuer, 376. ' "31 Wend. 108. 3 Sand. 189. 
 
 * 17 Wend. 501. 4 Coma. 446. 10 Cal. » Cliitty on Bills, 451. 6 Cowen, 484 
 
 419. 31 Mo. 318. "■ 7 Paige, 9. 30 N. Y. 138. 
 
246 OF CONTBACTS. 
 
 release or time was given to the endorser of a note made for Ms own 
 accommodation, when it was held not to discharge the maker.^ In 
 order to render an agreement to give time to an acceptor or maker 
 operate as a discharge of suhsequent parties, it must be one on a 
 consideration, and without fraud, and which can be legally enforced 
 against the holder, and which would suspend his remedy until the 
 expiration of the time, and a good consideration must necessarily 
 enter into it.? The receipt of a bond or other security payable at a 
 future day, would be a sufficient consideration for the agreement, 
 and operate as a discharge, although the original bill or note should 
 be retained.^ But the receipt of a bond, or judgment, or any other 
 collateral security for the demand, without an agreement to delay the 
 collection of the bUl or note, will not discharge the subsequent 
 parties.* The agreement must be a distract one, and stipulate for a 
 delay for a definite time, or it will not afiect the other parties." A 
 void, usurious contract cannot extend the time, so as to discharge 
 the surety.^ Where sureties were given for the performance of a 
 contract, an extension of the time* for the first payment discharges 
 the sureties.'' If the agreement is made between the creditor and 
 one of two sureties for an extension, this only discharges the other 
 surety from such part of the liability as the first named surety is 
 under to contribute to its payment.^ A person who has given 
 secui-ity for the payment of another's debt, is a surety, and dis- 
 charged by a valid extension of that debt.' It makes no difference 
 that the surety does not appear as such on the note, if he was so in 
 fact, and that to the knowledge of the payee or holder.^" 
 
 If the holder of a note makes a valid agreement not to bring- suit 
 against the estate of a deceased principal, for a time not exceeding 
 that within which such suit is prohibited by law, his surety is not 
 discharged.^'- If he' makes an agreement with a third person to give 
 
 > 17 Jolin. 169. ns Ind. 457. 10 id. 227. 16 id. 
 
 ' 13 Jolin. 87. 9 Oo-v(ren, 194. 87 N. Y. 348. 17 id. 203. 11 Ohio N. S. 601. 
 
 601. 38 id. 96. 5 Transcript, 330. 18 1 Corns. 274. Aliter ia. lo-wa, 18 Iowa, 
 
 Barb. 166. 3 Ind. 846. 6 id. 461. 17 id. 389, and New York, 39 Barb. 401. 33 
 
 203. 26 111. 282. 38 id. 481. 35 id. 40. N. Y. K. 31. 
 
 16 Wis. 666. 15,Ohio, 67. 38 Mo. 281. '.23 111. 64. 
 
 43 id. 235. 23 Iowa, 178. » 14 Ohio IST. S. 872. 
 
 » CMtty qn Bills, 451. 6 Duer, 204. 5 ° 16 lo-wa, 130. 
 
 Oal. 339. 12 id. 561. 31 Mo. 218. " 12 lo-wa, 55. 15 id. 161. 27 111. 328. 
 
 * Chitty on Bills, 443. 14 Barb. 232. 16 Wis. 666. 31 Wend. 604. 3 Corns. 
 
 17 id. 493. 86 id. 294. 44 id. 541. 1 354. 10 Minn. 308. 
 Bos-w. 411. , " 13 Wis. 543. 
 
 » 17 Wend. 501. v 
 
BILLS OF EXCHANGE AMD PEOMISSOEY NOTES. 24 Y 
 
 time on a note, if he, the third person, will endorse it, which agree- 
 ment is unknown to the maker, and it ia so endorsed, this will not 
 discharge the surety or guarantor of the maker.^ 
 
 § 456. The acceptance of a confession of judgment from the maker, 
 with a stay of execution until the time before which he could not by 
 regular process have compelled a judgment, is not an indulgence 
 which discharges an endorser.' - And where a judgment is obtained 
 against a drawer or maker, his discharge under an insolvent or 
 bankrupt act will not operate as a discharge to the endorsers, not- 
 withstanding the holder proves his debt and receives a dividend 
 under the proceedings in insolvency or bankruptcy,' unless he him- 
 self be a petitioner for his debtor's discharge, ia which case it would 
 discharge subsequent parties.* The receipt of part payment from the 
 maker after the debt is due, or the collection of a portion of the ' 
 demand upon execution, is not a discharge to subsequent parties.'' 
 As to payments of principal or interest, if paid before it is due, it is 
 a sufficient consideration for an agreement to extend the time ; * but. 
 the payment of that already due is not.' If the holder, at the time a 
 bill or note becomes payable, receives a portion of it, and then gives 
 notice to the endorser of the non-payment of the balance, the endorser 
 will be charged as to the part unpaid.* Where an awa:rd upon a sub- 
 mission between a creditor and the principal debtor, extends the time 
 for payment, the sureties of the debtor are discharged.^ 
 
 § 457. It is a well established rule that a surety upon the payment 
 of a debt, has a right to the benefit of all securities held by the creditor 
 or levies on property, and that if they are surrendered without his 
 consent, he is discharged to the extent of their value.'"' And, on the 
 other hand, the creditor is entitled to the benefit of all collaterals 
 received by the surety, although he did not originally rely upon them, 
 or know of their existence." But while this is the general rule, the 
 parties to notes do not so far sustain the relations of principal and 
 surety (although, as we have said, they stand in some respects as such, 
 ante, § 454), as to make this rule apply to them. Juxd, therefore, if the 
 
 ■ 38 N. Y. 330. ' 17 Ind. 202. 
 
 " 18 John. 28. 23 Wend. 81. See 13 » 1 Jolm. Ca. 131. 
 
 Wis. 543. »2Sel.44. 
 
 = Chitty on BUls, 449. "3 Com. 446. 28 N.. Y. 371. 43 
 
 ' 16 John. 41. ■ Barb. 461. 32 id. 9. 3 Minn. 317. 15 
 
 » 1 John. Ca. 131. 31 Miss. (3 George) Ind. 308. 18 id. 74. 17 Iowa, 473. 38 
 
 664. 30 K Y. 574. Mo. 381. 46 111. 428. 29 Ind. 158. Id. 
 
 ' 37 111. 323. 26 id. 283. 30 N. Y. 474. 347. 
 
 25 Barb. 175. 36 Ind. 338. 17 id. 302. "4 Corns. 313.^ 43 Barb. 461. 
 
; I 
 
 248 • OF GONTEACTS. 
 
 holder of a promissory note taken in the usual course of business, 
 obtains from the maker a collateral security for its payment, the 
 endorser of the note does not stand in such a .relation to him as 
 surety for the maker as to entitle him to an account for its vallie, if 
 the holder has in good faith surrendered the security.^ If one' of 
 several sureties takes security it enures to the benefit of all.^ 
 
 § 458. A release in order to .discharge subsequent parties, must be 
 made either by the holder or by one who is charged, and between 
 whom and the prior parties there is an existing, and fixed, obliga- 
 tion. Thus, where on the execution of a voluntary assignment by 
 the makers of a note for the benefit of their creditors, the second 
 endorser of the note executed a general release to them, and was 
 subsequently charged upon his endorsement, it was held that the 
 release having been executed before the maturity of the note, he was 
 not barred by it from maintaining his action upon the note, against 
 either the maker or the first endorser.^ 
 
 § 4:5&. By a similar rule, a release between the immediate parties 
 to a note will not discharge it when it is in the hands of a third 
 person ; as where the plain tiif made a note for the accommodation of 
 the defendant who negotiated it to A. ; the defendant becoming 
 insolvent and owing the plaintiff and A., they, by a writing express- 
 ing a consideration, released him from their debts against him, A. 
 not knowing that the note was made for defendant's accommodation. 
 He then collected the note of the plaintiff, who brought his action- 
 against the defendant for the money paid upon it. It was held that 
 the release of A. was inoperative upon the note, and that, therefore, 
 the plaintiff might recover against the defendant for the money 
 paid.* 
 
 § 460. In the cases above mentioned, where a release or indulgence 
 of any of the parties to a bill or note would discharge all the subse- 
 quent parties, if , it is done by the assent of the latter it will not 
 affect the right of the holder to his action against them.^ And in 
 cases where the drawee or acceptor has no effects of the drawer, and 
 where for that reason, the holder would be excused from giving 
 notice of non-acceptance or non-payment, and also where a bill is 
 accepted or a note given for the accommodation of the drawer or 
 endorser, the holder may give time, take security of or release the 
 
 ' 3 Corns. 353. ' 13 East, 88. S3 N. Y. R. 691 6 
 
 = 30 Barb. 403. 6Mmii.493. Bosw. 600. 36 111.283. 37 id. 3J3. 33 
 
 = 13 Wend. 110. Iowa, 153. 
 * 17 John. 169. 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 249 
 
 acceptor or maker without impairing Ms right against such drawer 
 or endorser, for the latter are not sureties, but principals.* 
 
 [§ 460a.J After a surety has been released by an extension of time, 
 his promise to pay binds him, without any new consideration to 
 support it, if he at the time of making the promise has full know- 
 ledge of the facts releasing him.^ 
 
 § 461. There is no obligation of active diligence on the part of the 
 holder of a bill or note to bring an action against any of the parties, 
 in order to relieve any of the other parties to it ; and he may forbear 
 to do this as long as he chooses, and he mkj entertain propositions 
 for security.' It will make no difference although the drawer or 
 endorser should request him to sue the acceptor or maker, and he 
 should refuse to do so, and the latter should become insolvent ;•* ot if 
 after he had obtained a judgment against a prior party a subsequent 
 one should request him to issue an execution, and he should refuse.^ 
 In this respect, although the condition of an endorser is iji some 
 respects like that of a surety for the prior parties to a bill or note, 
 yet he cannot, like a surety, compel a creditor to enforce his demand 
 against the principal.' A joint maker, who is surety to the other 
 maker, cannot discharge himself by requesting the payee to sue the 
 demand, the real maker being then solvent.'' 
 
 § 462. In the ordinary case of principal and surety, the latter may, 
 after the debt is payable, call upon the creditor to bring an action 
 upon it, and if he declines to do it, and the principal becomes insol- 
 vent, the surety will be discharged.^ In other respects than this, and 
 the one mentioned in section 45T, the rule as to endorsers, &,c., of 
 notes is the same as in the ordinary cases of suretyship, and the 
 decisions relative to the two" classes of cases are conimingled in the 
 preceding sections under this head. Such being the similarity of the 
 rule, an agreement made between the creditor and the principal for 
 delay, is subject to the same rule as one between the holder and 
 maker of a promissory note. It must be upoa good consideration, 
 and capable of being enforced by the principal against the creditor, 
 or it wlU. not affect the surety.' And a delay in enforcing the claim 
 
 ' ClHtty on Bills, 450. Edw. on Bills, » 3 "Wheat. 535. 
 
 575. " 16 Jolin. 153. 8 Wend. 194. 31 id. 
 
 » 9 Mich. 11. 31111.400. 33 Iowa, 153. 503,504. 5 Barb. 463. 
 
 = 17 John. 176. 3 Corns. 446. 14 Barb. ' 34 Cal. 165. 
 
 333. 1 Bosw. 411. 15 Ark. 415. 9 Cal. ' 13 John. 174. 10 Wend. 163. 4 Hill, 
 
 557. 5 id. 173. Chitty on Bills, 445, 446. 650. 35 N. Y. R. 553. See 35 Ind. 107, 
 
 15 Ind. 45. 25 id. 107. 29 id. 347. as to their Code. 
 
 * See 9 Cal. 557. =3 Hall, 185. 39 Texas, 159. 
 32 
 
260 OF OONTEACTS. 
 
 against the principal, unless where the creditor has been required by 
 the surety to sue, and where the delay has occasioned a loss, will not 
 prejudice the right to enforce the debt against the surety. To relieve 
 the surety, it must appear that he requested the creditor to proceed 
 against the principal at a time when he was solvent, and within the 
 jurisdiction of the state, and that the creditor without (^reasonable 
 excuse neglected to do so until the principal became insolvent and 
 unable to pay.^ Neglect to sue a contractor for one breach does not 
 discharge his sureties a;s to others.' If the suretyship does not 
 appear on the face of the instrument, and the creditor was ignorant 
 of the fact, the surety is not released by the extension of time to the 
 principal.' 
 
 § 463. In the case of joint and several notes, the holder may sue 
 one of the makers and collect a part of his debt against him without 
 discharging the other ; and the giving time to one, or agreeing not 
 to bring an action against him, will not bar an action against the 
 other.* If or will a discharge under an insolvent law of two of thred 
 joint makers of a note operate as a discharge to the other.' But 
 where Y. and H. were indebted upon a joint and several note to G., 
 and he obtained a judgment against V., upon which he was com- 
 mitted to jail upon an execution and gave a bond for the prison 
 liberties, and G. then received from him a part of the debt and dis- 
 charged the bond, it was held that it was a discharge of the debt 
 against bot^ V. and H.^ 
 
 § 464. (5.) When, the receipt of a Mil or note is a payment for a 
 precedent debt. In general, one simple contract cannot be extin- 
 guished by another of the same character. And, therefore, as a 
 general rule, where a creditor receives from his debtor, his (the 
 debtor's) own bill, check or note on the debt, it operates as payment 
 only so far as to suspend the remedy of the creditor upon the debt 
 till the bill or note is dishonored.'' In some of the states, the rule is 
 carried so far that it is not a payment even if expressly agreed to be 
 taken as such.^ In others it is a payment if so agreed to be.' Where 
 the note is not a payment, it is an extension of the time of pajTuent ; 
 
 " 8 Wend. 194. 4 HUl, 650. 31 Barb. ' CHtty on Bills, 193. 15 John. 247. 
 
 249. 45 Id. 314. 38 Bl. 160. See supra, § 389 a, as to this 
 
 " 7 Oal. 419. general question. 
 
 'Supra, §455. '1 Hill, 516. 5 Barb. 408. 3 Kern. 563. 
 
 * Chitty on BUls, 449. 48 N. Y. R. 331. 
 
 " 8 Caines, 4. " 11 Wis. 334. 19 111. 207. 4 Ohio N. S. 
 
 "4 Verm. 531. 60. 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 251 
 
 but when dishonored, the cause of action revives.^ The same rule 
 prevails where goods are purchased and paid for in the purchaser's 
 bill or note.^ The vendor cannot bring his action for their price so 
 long as the bill or note is not dishonored ; but as soon as it is he 
 may, the same as if there had been no bill or note taken ; and 
 he need not cancel the note or order to do this, although he 
 should have it ready to deliver up or cancel upon the trial.^ 
 The rule is the same in the case of a bank check which is dis- 
 honored ; * for although a check be drawn against funds of the 
 drawer, it is not presumed an absolute payment ; and in this respect 
 it is subject to the same conditions as other orders for the pay- 
 ment of money at ^ight which are not paid on presentation.' A 
 note void for usury, cannot amount to a payment of a prior valid 
 indebtedness.* 
 
 § 465. A negotiable bill or note of a third person, given upon a 
 pre-existing or cotemporaneous debt, will discharge it, if such was 
 the express agreement between the parties, and there was no fraud.'' 
 If given upon a pre-existing debt, the presumption is that it was not 
 taken as a payment ;* if for a cotemporaneous one, the presumption 
 is that it was taken in payment ;' and the burden of proof varies in 
 each case. So, if the note is not negotiable, the presumption would 
 be that it was not received as payment.^" The rule has been extended 
 to the ease of a note given by one of several partners for a partner- 
 ship debt, on the ground that the creditor receiving it obtained a 
 possible advantage in case the private debts of the partners should 
 exhaust all their effects, and the partnership prove insolvent, as he 
 would then be able to resort to the private estate of the debtor who 
 gave the note." It is held, on the other hand, in Indiana, that the 
 note of one joint debtor is not a discharge of a joint debt ; ^ the con- 
 
 '5 John. 68. ICowen, 290. 6 Barb. 344. 37 How. Pr. R. 534. 8 Cal. 501. 13 id. 
 
 SlCal. 386. .8 id. 501. 817. 8 E. D. Smith, 54. Id. 507. Laior, 
 
 ' 18 Cal. 830. 31 id. 11. 313. 8 Mich. 494. 38 lU. 160. 17 Iowa, 
 
 »4 Barb. 869. 6 id. 433. 15 id.- 81. 33 240. 11 Minn. 198. 30 Ind. 91. 
 
 id. 396. 3 E. D. Smith, 631. 33 Cal. 333. » 3 Kern. 167. 45 Barb. 354. 1 Daly, 
 
 16 111. 161. Id. 513. 91. 6 Minn. 468 ; but see 38 111. 160. 
 
 « 4 John. 396. 1 Hall, 56. 33 Barb. »11 John. 409. 15 id. 341. 1. Sand. 9. 
 
 478. 39 id. 509. 89 id. 303. 33How.Pr. 3 Kern. 167. 34N. T. E. 358. 37 Barb. 
 
 R. 399. 11 Mich. 501. 193. 6 Minn. 468. 
 
 '6 Hill, 56. 15 John. 334. 31 Cal. 386. "4 Mass. 93. 6 id. 143. 15 John. 334. 
 
 35 111. 10. 5 Denio, 360. 
 
 ' 16 Wis. 319, 17 id. 383. " 3 Denio, 410. 6 Barb. sfl. 27 lU. 46. 
 
 ' 1 Cowen. 359. 5 Wend. 85, 490. 3 15 Ohio, N. S. 169. 
 
 Kern. 167. 31 N. Y. 113. 53 Barb. 69. "11 Ind. 33. 
 
252 OF CONTRACTS. 
 
 trary rule prevails in New York and other states.^ If, where the 
 presumption is against it, it be not shown that it was received as an 
 absolute payment, it will be regarded as a conditional payment only, 
 and be governed by the rules laid down in the preceding section.' 
 The question is one for the jury,® and the fact that the creditor gave 
 a receipt for the note of a third person " as cash," * or " in payment 
 of account," ^ or, on receiving a check of, a third person, surrendered to 
 the debtor his note,* is not sufficient to establish an agreement to 
 receive them as an absolute payment. But, where a creditor was 
 directed by his debtor to apply to a person who owed him for the 
 amount of his debt, and the creditor received from such person a 
 check upon time in lieu of money, it was held that it discharged the 
 debtor.' An agreement made between the payee and maker of a 
 note, with the assent of the latter's partner, to apply the former's 
 indebtedness to the partnership in payment of the note, operates 
 immediately, as a satisfaction of the note to the amount of that 
 indebtedness.^ The acceptance by the creditor of the note of a 
 surety is payment of the debt owed by the principal.' 
 
 § 466. As we have seen, ante, § 465, the receipj; of the note of 
 a third person, for a cotemporaneous debt, is presumed to be as pay- 
 ment. This is SO' whether it is endorsed or not by the debtor.^" If, 
 however, the purchaser guaranty a note given for the price, the 
 guaranty although void for not expressing ' the consideration, or 
 because it is by parol, is evidence that the note was not received in 
 payment.-''- 
 
 § 467. If forged bills or notes, or counterfeit bank bills, are 
 received in payment upon the sale of property or upon a debt, 
 though both parties supposed them to be genuine, the payment is a 
 nullity, unless the person receiving them expressly took upon him- 
 self the risk of forgery .*' In such a case, the one receiving them 
 should, within a reasonable time afterwards, and immediately upon 
 discovering the forgery and before bringing his action, return or 
 
 ' 7 John. 311. 33 How. Pr. R. 98. 17 ' 24 N. Y. 386. 
 
 Iowa, 240. 27 lU. 46 ; but see 1 Cowen, » 37 N. T. 399, and refs. 
 
 390. 7 John. 311. "3 E. D. Smith, 507. 1 Sand. 9. 11 
 
 = 4 Corns. 313. 1 Daly, 91. 36 Conn. John. 409. 15 id. 341. 3 Cowen, 272. See 
 
 487. 18Cal. 330. 6 Minn. 468.' 
 
 "9 John. 310. 33Penn. 493. "5 Denio, 360. 11 Barb. 485. Aliter, 
 
 * 5 John. 68. 21 "Wis. 433. 
 
 nOMd. 27. » 5 Taunt. 488. 2 John. 455. 6 Hill, 
 
 «5 Wend. 490. 340. 2 Hilton, 397. 50 Barb. 112. 
 
 ' 1 Sand. 81 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 253 
 
 offer to return the bill or note.^ If the bill or note is worthless on 
 account of the insolvency of the maker, it is nevertheless a payment, 
 in the absence of fraud or warranty.^ The rule ip different in regard 
 to bank bills, which are not payment if the bank is insolvent, though 
 that fact was unknown to the parties at the time.' The rule in regard 
 to their return is the same as in the case of forged bills or paper, 
 except that if the person from whom they were received cannot be 
 ascertained till the trial, it is sufficient to return them then.^ If the 
 debt is paid in bank bills which have been declared illegal, but 
 which were paid the debtor at his request, or he has since passed at 
 par, the debtor afterward redeeming them, so that the creditor has 
 suffered no loss in either case, the payment is a good one.' 
 
 § 468. In all cases where a bill or note is given in paympnt of a 
 previous debt or upon a purchase, if it be forged, or there be fraud 
 in transferring it, the person receiving it may treat it as a nullity and 
 resort to the original debt or contract of sale, and may bring his 
 action at once, although the bill or note was payable at a future 
 day.^ He may also do this, if the bill or note were received upon 
 any condition which the person transferring it has neglected to 
 keep.'' 
 
 § 469. "When a biiJ or note is received conditionally, in either of 
 the cases above mentioned it will become an absolute payment, if 
 the holder, receives in place of it, from the acceptor or maker, a new 
 note payable at a future day.' The same effect wiU be produced if 
 he negotiates the bill or note, unless he ag3.in obtains it before bring- 
 ing his action upon the original indebtedness' or contract.^ If, there- 
 fore, he brings his action, in any of the cases where he may, upon 
 the original indebtedness or contract, whether before or after the 
 matiprity of the bill or note, he must, if required, either produce it 
 on the trial, or show it to be lost." If a creditor receives from his 
 debtor the business note of a third person, on the agreement that it 
 shall be full payment of a larger debt, if paid at maturity, but not ■ 
 otherwise, and it is not paid then, but the holder receives payment 
 
 » 6 HiU, 340. 50 Barb. 113. 51 id. 105. ' Chitty on Bills, 196. 6 John. 110. 
 
 7 Wis. 185. 11111.137. 45 id. 376. 15 id. 475. 21 Ind. 411. 
 
 »3E.D. Smith, 54. Id. 175. '3 Camp. 329. 
 
 •11 "Wend. 9. 13 id. 101. 6 Hill, 340. "4 Ball. 155. 9 Wend. 133. 10 Iowa, 
 
 7 Wis. 185. 10 Ohio N. 8. 188. 7 Wis. 437. 
 
 185. Aliter in Tenn. 3 Head. 609. ■ 3 Cranch, 318. 15 John. 347. 35 Ala. 
 
 « 6 Bam. & C. 373. 7 Wis. 185. 6 Hill, 698. 
 
 840. " 15 John. 347. 
 
 "18^^53. 19 id. 301. 
 
254 OF CONTEAOTS. 
 
 of the note afterward, that is a waiTsr of the condition, and the 
 original debt is discharged.^ 
 
 § 470. "Where a purchaser transfers to the vendor a bill or note 
 with his endorsement, or a debtor in like manner transfers one to his / 
 creditor under circumstances which render it only a conditional pay- 
 ment, the payment will become absolute by the neglect of the holder 
 to exercise the same diligence in presenting the bill or note for pay- 
 ment, and in case it is unpaid, of giving notice to the person transfer- 
 ring^it, as is required to charge a drawer or endorser in other cases.' 
 This neglect is technically termed laches, and if it be such as in an 
 action against the drawer or endorser would prevent a recovery, it 
 will operate not only to discharge the person transferring the bUl or 
 note as one of the parties to it, but will actually extinguish' the debt 
 it was given to apply upon.* The principle of the rule is that a 
 debtor who draws or endorses the bill, or who endorses the note, has 
 a right, in the event- that it is dishonored, to pay it and instantly 
 resort to the acceptor or maker, and that if the creditor by his laches 
 deprives him of this right even for an instant, he discharges him from 
 all liability to him,* and that by retaining the bill or note and 
 omitting to notify the original holder, he has given the acceptor or 
 maker an implied credit, and thus prevented him from paying it up 
 and bringing his action upon it.^ In England the rule in relation to 
 laches applies whether the bill or note transferred conditionally was 
 or was not endorsed by the party transferring it.^ It is, however, 
 confined in New York to the case where the bill or note was trans- 
 fei^red by endorsement.'' 
 
 § 4Y1. An illustration of the rule contained in the last section is 
 found ia-the case of Bridges v. Berry? The defendant was indebted 
 to the plaintiff as acceptor of a bill. He gave him as a security, a 
 bill drawn by himself upon a third person. At its maturity it was 
 not paid, but the plaintiff omitted to give the defendant notice of the 
 non-payment. He then brought his action upon both bills. The 
 defendant insisted that he was not liable upon the second biU because 
 not charged, and that the omission to charge him on that operated to 
 render it an absolute payment of the original debt as a security for 
 
 ' 6 Sel. 440. 2 WUs. 353. 3 John. 230. 1 Str. 550. 
 
 ' Ghitly on Bills, 197. 4 Ball. 155. 
 ■ 23 "Wend. 345. 6 id. 658. 21 Cal. 386. » 2 Bam. & AM. 501. 
 11 Mich. 501. ' 1 Wend. 219. 
 
 * 8 Taunt. 130. ' 3 Taunt. 130. 
 
 "Esp. Dig. part 1, 133. 1 Burr. 352. 
 
BILLS OF EXCHANGE AND PEOMISSOET NOTES. 255 
 
 wMcli it was given. The court sustained the position, remarking 
 " The defendant delivered a bill to the plaintiff as security upon 
 which he (the defendant) had a right to sae other persons. The 
 plaintiff by not giving him notiee of non-payment had put it out of 
 his power to recover what was due thereupon, and having so done, 
 he shall not be permitted to resort to the first bill." » 
 
 § 472. The holder of a foreign bill received conditionally upon a 
 purchase or a pre-existing debt, may be held to have elected to con- 
 sider it as payment, if upon its dishonor he has it protested and 
 renders an account to the person transferring it, in which he charges 
 him the damages allowed on the protest of such biUs.^ If, however, 
 he returns the bill and requests a remittance on the original debt, he 
 simply waives the bill and retains his debt.' 
 
 § 473. Where an agent buys goods for his principal and gives his 
 own notes for the price, they are, so far as the question of payment 
 js concerned, regarded in the same manner as the notes of his prin- 
 cipal ; ' and the rule is the same where the agent gives his note in 
 payment of the principal's debt without any express agreement that 
 it shall be received in full discharge thereof, and where it appears 
 that the principal, upon the strength of the payment, has allowed to 
 the agent the amount.* 
 
 § 474. "Where a creditor has a lien upon any property for his 
 debt, the receiving a bill or note in satisfaction will in general 
 determine it. Thus the receipt of a promissory note' for labor 
 bestowed upon an article by a mechanic, has been held to indicate 
 an intention to waive his lien and rely upon the security given 
 him, and this whether the note were payable presently or at a 
 future day.' 
 
 § 475. The following cases illustrate the rules in relation to the 
 transfer of bills or notes as payment of the price of an article pur- 
 chased, or an existing debt. Where a defendant on the purchase of 
 goods gave the plaintiff an order upon a third person who accepted 
 it, payable on the return of the defendant's brig, and the plaiatiff 
 gave a receipt in full, the vessel never having been heard from, the 
 court held that unless the defendant could show that the plaintiff was 
 to take the risk of the voyage, his action was maintainable.^ Where 
 a mortgage was given to secure a note,i and the mortgagee took a new 
 note from the mortgagor and delivered him the old one, it was held 
 
 ' 3 DaU. 100. * 1 Cowen, 359. 3 Corns. 168. 7 Abbott, 239. 
 
 » Id. 134. ■' 4 Verm. 549. 33 lU. 374. 
 
 » 1 Cowen, 359. 3 Bosw. 497. ' 11 Mass. 143. 
 
356 OF CONTBAOTS. 
 
 that the mortgage was not affected.^ Where a sheriff without the 
 plaintiff's leave, received ,a promissory note in satisfaction of an 
 execution and discharged the defendant, it was held a nullity against 
 the plaintiff's judgment, and that he might issue a new execution 
 upon it.' So where in such a case the attorney for the plaintiff 
 received the note from the sheriff, without a special agreement that 
 ■ it should be received in payment, it did not discharge the judgment.' 
 Where one gave his note in payment upon a subscription, he was not 
 precluded from defending an action upon it by showing a defense to 
 the silbscription.^ A note of a third person received upon an express 
 agreement that it should be a payment of a judgment extinguishes 
 it.' A horse was sold on the purchaser's agreement to give the 
 vendor a good and collectible note of some third person, responsible 
 for the same, for the sum of $200. One was sent accordingly, made 
 by a stranger, to the vendor, who took it and laid it away, remarking 
 that he did not know the man. When it became due, the maker was 
 insolvent. It was held that the note was taken not as an absolute, 
 but a conditional payment, and beiing worthless when due, the vendor 
 could recover the price of the purchaser.^ 
 
 § 476. Wherever one has, upon a settlement of an account, given 
 his note for the amount, and the creditor brings his action upon the 
 original contract, an answer simply alleging the giving of the note 
 would be an insufficient defense. If the note was upon time, and 
 was not payable, that should be set forth in the answer, and it would 
 show that the remedy upon the original cause was suspended. But if 
 the note had become payable, the plaintiff might at the trial produce 
 and cancel it.'' 
 
 § 4T7. (6.) When a "bill or note is evidence of money received for 
 the plwmtiff^s use, or lent to or paid for the maker. Under the 
 ancient system of pleading it was usual, in setting forth the plaintiff's 
 cause of action upon a simple contract, as for the price of goods sold, 
 labor furnished, money lent to defendant, or received by him for the 
 plaintiff's use, to state in one or more counts in the declaration the 
 facts out^ of which the cause of action arose, with an allegation that 
 the -defendant in consideration thereof promised to pay the plaintiff 
 the amount owing when he should be thereto afterward requested ; 
 
 '8 Pick. 533. 31ir.H.535. '3N.H. 376. 
 
 ' 6 Cowen, 465. It was also uncollect;- ♦ 1 Verm. 313. 
 
 ible by the sberifiF, in case he should pay » 5 Wend. 85. 
 
 the plaintiff, aa contrary to the policy of '87 Barb. 193. 
 
 the law. '8Cowen,77. 15 John. 347. 
 
BILLS OF EXCHAKGE AKD PEOMISSOET NOTES. 257 
 
 and then to add another set of counts, which were called common 
 counts, in which the plaintiff alleged that the defendant was indebted 
 to him for work and labor, goods sold him, money lent to him, money 
 paid for his use, money by defendaat received for plaintiff's use and 
 not paid over. If the action was brought upon a bill or note, one set 
 of counts would set forth with legal formality that the defendant 
 accepted, drew or endorsed the bill, or made or endorsed the note, 
 and that it was negotiated to the plaintiff, whereupon the defendant 
 promised to pay the amount payable thereon to the plaintiff, and the 
 common counts for money lent, money paid, and money received 
 were then added. These were called money counts, and a negotiable 
 bill or note was of itself evidence between the holder and any of the 
 parties liable upon it, to sustain any of the money counts.^ In like 
 manner a note not negotiable, if it expressed " for value received," 
 upon proving a consideration, was evidence under these counts. The 
 system of pleading in New York provided by the Code of Procedure 
 has superseded the use of the common counts, by requiring that the 
 complaint shall state in a plain and direct manner the facts consti- 
 tuting the cause of action.^ The rule of evidence, however, is 
 supposed to remain unaffected ; and where the complaint alleges the 
 loan of money to defendant, a payment of money for his use, or the 
 receipt of money by him to the plaintiff's use, the production of a 
 bill or note upon which the defendant is liable would doubtless be 
 evidence of the fact to sustain the action. It will, however, be 
 better, in a justice's court, for a plaintiff who has commenced an 
 action upon a bUl or note, simply to state in his complaint that he is 
 the owner and holder of a note made by the defendant, of which he 
 gives a copy, and that the defendant is indebted to him upon it in 
 the amount owing. This it is supposed will be a compliance with 
 the rule for pleading in justices' courts referred to. If, however, 
 the note was given for money loaned to or paid for the defendant, or 
 for money received to his use, the complaint may state the fact and 
 the note would be evidence to sustain the allegation. In such a case 
 if the note were lost, it would be necessary to prove the giving of the 
 note, its contents and its loss. 
 
 § 478. X. Upon an account stated oe a balance dtte upon 
 SETTLEMENT. Where two parties have dealings together of any kind, 
 and they reckon together and agree upon the balance due, the law 
 implies a promise from the party owing the balance, to pay it to the 
 other. The fact necessary to be stated in the complaint, and which 
 
 ' 3 Term, 174. 3 Bur. 1516. 3 John. Ca. 5. " 4 Esp. 159. 2 Cur. & Payne, 20. 
 3?. 
 
258 OF C0NTEACT8 
 
 constitutes the right to relief is, that the plaintiff and defendant 
 accounted together of their mutual demands, or of the demands of 
 the plaintiff against the defendant, and upon the accounting, there 
 was found due to the plaintiff from the defendant, the amoimt 
 claimed.* It is not necessary to show what the accounts were nor 
 how the balance was arrived at.' It is sufficient to show the admis- 
 sion by the defendant that he had agreed to pay the plaintiff a 
 certain sum for articles which he had formerly purchased. In 
 one case where the plaintiff had agreed to sell the defendant a 
 field of turnips, , and after the defendant had renioved a part he 
 said to him, "You owe me £3," and the defendant replied, "I 
 will pay you before I remove the rest of the turnips," it was 
 held that there had been an accounting and balance found due the 
 plaintiff.^ 
 
 § 4:19. The accounting may be one between partners, and in this 
 case, if a balance be found, and it is not too large, it maybe recovered 
 in a justice's court.* It may also be presumed from the receipt of an 
 account rendered by one dealer to another who retains it for a long 
 time without objecting to it,^ though he would then be permitted to 
 show a fraud, or gross error, or mistake in' it.° The burden of prov- 
 ing the fraud, error or mistake is upon the party alleging it,' who 
 cannot open the account " on suggestions supported by doubtful or 
 by -only probable testirnony." * If fraud is proved, that wiU. be 
 sufficient to open the whole account ; if mistakes or errors only are 
 shown, the party will be permitted to surcharge and falsify it, the 
 former of which is to supply credits, and the latter attacks debits as 
 erroneous ; these leave the account in full force as a stated account, 
 except so far as the particular errors are concerned.' But if there 
 has been too long delay, e. g., sixteen years, the account will not be 
 opened generally even for fraud, but only as to those charged in the 
 bill, and satisfactorily proved." The account when stated is not 
 conclusive as an estoppel ; it is a mere admission that it is correct." 
 The settling the account and ascertaining the balance is in the 
 
 > 4 Barn. & Cress. 285, 343. 6 Dowl. & 23 id. 184. 13 Cal. 437. 1. Wasli. 
 
 Ryl. 806. ITei-m, 43. 8 Taunt. 688. 4 T. 66. 
 
 Iowa, 219. 9 Cal. 853. "18 N. Y. E. 385. 11 Texas, 330. 4 
 
 ^ 1 Kern. 170. 4 Sand. 811. Wis. 319. K'y Decis. 330. 
 
 = 3 Car. & Payne, 336. ' 1 Kern. 170. 45 Barb. 490. 
 
 '3-Comyn on Cont. 305. 1 Hall, 180. »4 Cranch, 806. 4 Sand. 311. 
 
 2Bing. 170. 33 Barb. 184. "3 Barb. 586. 9 Cal. 853. 
 
 '1 Kern. 170. 80 N. Y. R 197. 81 "4 Sand. 311. 
 
 id. 198: 4 Sand. 311. 45 Barb. 490. " 18 N. Y. E. 385. 
 
ACnOS-8 FOE mjTJEIES. 259 
 
 nature of a new contract to pay it.^ A claim which is absoltitely 
 void by reason of an illegality or immorality in the consideration, 
 cannot be made valid and collectible by being stated as an account.^ 
 And yet, where an account is rendered which contains a usurious 
 item, and all of it becomes a stated account, a third person to whom 
 the debtor assigns his demands against the party rendering the 
 account, takes them subject to the right of that party to insist on the 
 whole as a stated account.^ What amounts' to a settlement is a 
 question of law when the facts are disclosed* Where a witness 
 testified that the plaintiff met the defendant and asked him to give 
 him his bond for £126, to which the defendant replied that in a few 
 weeks he expected money, when he would see the plaintiff and settle 
 the account with him and pay it ; that he believed the plaintiff at 
 the time showed the defendant an account, but he was not certain of 
 it, but that the defendant did not examine it nor object to it, it was 
 held that in the absence of other evidence, this shoWed an accounting 
 and promise to pay the balance.® It is competent for either party to 
 show that it was understood that the account should not be con- 
 sidered as stated, or tljat he did not understand that it was such.* 
 II. Of actions foe damages foe an etjuet to the peeson, to 
 
 EEAL PEOPEETT, AND FOB TAKING, DETAINING, OE INJUEING PEESONAL 
 PEOPEETT, COGNIZABLE m JUSTICES' COUETS. 
 
 § 480. Under the ancient system of pleading, the cases which are 
 comprehended under this classification found their remedies in actions 
 of trespass, trespass on the case, detinue and replevin. Where the 
 injury to one's person or property was a dM^eet one, the appropriate 
 action was trespass ; where it was in consequence of the defendant's 
 wrongful or negligent act, it was trespass on the case ; where it was 
 for unlawfully taking one's personal property, it was an action on 
 the case called trover, or if the plaintiff wished to recover the pro- 
 perty, replevin ;. and where for unlawfully detaining property, 
 detinue or replevin. There were a great variety of rules of plead- 
 ing and evidence peculiar to the different actions. Witli the 
 abolition of the forms of action, as has been done by the codes, in 
 many of the states, most of these are superseded in those localities, 
 and in such, all the remedies furnished by each of the ancient forms 
 are now to be obtained by the " civil action," or such other term as 
 
 'lJohn.34. 4 Mich. 387. Mood. & Malk. 116. 4 Mich. 836. 10 
 
 ' 13 J. Scott N. S. 677. Iowa, 248. 
 
 ' 30 N. y. E. 197. "5 Muii£ 25. 
 
 * 1 Kern. 170. 3 Car. & Payne, 55. " 18 N. Y. R. 385. 
 
260 INJTJKIE8 TO THE FEESOK". 
 
 may be used in the respective codes. In considering the injuries 
 treated of in this division, the subdivisions indicated in their enume- 
 ration will be followed. 
 
 I. Actions for injuries to the person. 
 
 II. Actions for injuries to real property^ 
 
 III. Actions for taking, detaining, or injuring personal property ; 
 and as many of the causes of action arising xmder each of these 
 divisions arise from the acts of persons acting under color of law or 
 of legal process, in a further subdivision, 
 
 ly. The rights and liabilities of persons acting under color of law 
 or legal process will be examined. 
 
 § 481. I. Actions fob injueibs to the peesoS. The exclusion 
 from a justice's jurisdiction, in ISew York, of actions for assault and 
 battery, false imprisonment, libel, slander, malicious prosecution and 
 seduction, by the Code of Procedure,' extends to all cases of willful, 
 direct injury to the person, and limits it to cases where the injury is 
 a consequence of some wrongful or negligent act. Such act or 
 negligence may be committed either by a defendant or his servant 
 or agent. The general rule is, that where any one either personally 
 or by his servant does an illegal or wrong act, or a lawful one in 
 such a negligent manner that it is likely to produce an injury to 
 others, he is answerable to every person who is in consequence of it 
 injured, although he did not intend. to do the^particular injury which 
 followed;' within this rule, exploding fire-crackers in the public 
 streets or highways is wrong and unlawful, and if any injury to 
 person or property arises therefrom, the wrongdoer, even if an 
 infant, is liable for the damages.' A corporation is liable for the 
 torts of its agents, in the same manner as individuals.* A late case 
 holds that it should appear that they were expressly authorized by 
 the corporation, or were done iona fide in pursuance of a general 
 authority to act for the corporation on the subject in relation to 
 which they were performed.' 
 
 § 482. As a general rule, if the plaintiff, by his own negligence 
 contributed at all to the injury, he cannot recover." But he is only 
 
 'Code, §54. '21 "Wend. 188. 6 Hill, 592. 24N. Y. 
 
 «1 Str. 634. 14 John. 432. 4 Denio, 430. 32 id. 697. 34 id. 9. 35 id. 9. 39 
 
 464. 2 Seld. 397. 31 Barb. 385. 32 id. id. 61. 40 id. 34. 8 OMo N. S. 570. 7 
 
 480. 40 id. 137. 33 N. T. B. 369. 16 Wis. 527. 9 id. 202. 32 id. 245. Id. 376. 
 
 111.313. 5Blackf. 149. 6 Ind. 248. 18 Cal. 351. 25 Ind. 185. 10 id. 400. 15 
 
 "39 38^.218. id. 487. 19 id. 40. 29 id. 83. 20 Iowa, 
 
 '30 Mo. 546. 338. 21 id. 15. 34 id. 515, 13 Minn. 30. 
 
 MOF. Y. 442. 40 Mo. 131. 
 
NEGLIGENCE OF PLAINTIFF. 261 
 
 required to have ordinary capacity, and to exercise ordinary and 
 reasonable care, under the circumstances of each case, and if he does 
 not he is remediless. If he does he can recover.^ Although the 
 plaintiff was guilty of negligence, yet if that had nothing to do with 
 causi-ng the injury, he will succeed in the action." And so, if the 
 plaintiff is free from negligence, the defendant is liable, though the 
 negligence of a third person contributed to the injury.' It is said in 
 Indiana that if the injury " happens by the proximate wrong of 
 another he shall be liable for it, even though the remote negligence 
 of the injured party may have contributed to it ; " * that if the plain- 
 tiff is in fault, but the defendant was aware of the danger in time to 
 prevent the injury by reasonable diligence and did not, that neglect 
 is the proximate and immediate cause of the injury, and makes the 
 defendant liable.' A similar rule exists in Wisconsin and Missouri.* 
 In Illinois it is said that each party must employ all reasonable 
 means to avoid the injury ; that if the plaintiff's negligence was 
 slight while that of the defendant's was gross, the latter is liable.'' It 
 is further said, in Indiana, that if there was negligence on the part of 
 the plaintiff he cannot recover, unless the defendant's negligence was 
 so gross as to imply a disregard of consequences or a willingness to 
 inflict the injury.* 
 
 The rule is the same if the plaintiff was in the wrong in any other 
 respect, as when he was on the engine, or the platform of a car, or 
 in a baggage ear where the rules forbade him to ride, or on the fender 
 of a sleigh;' but if he was on the platform, attempting to escape 
 from an inevitable collision, or ^ecause the car' was ftiU and no seat 
 was provided for him, or when acting temporarily as brakeman, he 
 would not be so far in the wrong as to prevent a recovery.^" The 
 action may be maintained where an injury was received by being 
 run against by the defendant in the highway in a dark night, even 
 if the defendant was no otherwise blameable than by driving on 
 the wrong side of the road." But where a child of such tender age 
 
 •35 N. T. 9. 36 id. 39. 6 OMo N. S. Id. 469. 46 id. 74. Aliter in Wisconsin. 
 
 105. 2 Oreg-on, 300. 15 Ind. 487. 10 33 Wis. 345. 
 
 Mich. 193. « 25 Ind. 185. 36 id. 76. Id. 370. Id. 
 
 ' 80 N. Y. 308.' 459. 30 id. 361. 
 
 » 38 N. T. 260. " 5 Denio, 355. 4 Corns. 359. 33 Barb. 
 
 ' 9 Ind. 399. See also 13 Minn. 30. 91, 574. 31 id. 419. 33 id. 657. 3 Bosw. 
 
 » 17 Ind. 102 ; also 33 id. 376. 132. 26 Conn. 591. 36 Mo. 418. 
 
 « 9 Wis. 202. 43 Mo. 383, and refs. "" dt K. Y. 314. 34 id. 670. 36 id. 89. 
 
 ' 36 111. 255 ; also 30 id. 478, where Id. 136. 33 Barb. 657. 11 Wis. 238. 
 
 earlier cases are reviewed. 45 id. 444. "5 Term, 648. 3 Bast, 593. lOBing.113. 
 
262 
 
 mjUEIES TO THE PEB80N. 
 
 as not to possess sufficient discretion to avoid danger was permitted 
 to run in the highway without an attendant, and was there run 
 over by the carriage of a traveler and injured, an action was held not 
 to lie by him against the traveler without showing that the injury 
 was voluntary or willful. The child was negligent, and although 
 incapable of knowing how to^ avoid the danger, was held bound by 
 the -same rule as an adult, if he exposed himself to it.'^ But in a 
 subsequent case it is said that if the child " exercises the caution of 
 one of its years, that is all that can be expected of it.'"* A sick. or 
 aged person, a delicate woman, a lame man, or a child, is entitled to 
 more attention and care from a railroad company than one in good 
 'health and under no disability.' 
 
 § 483. Injuries for which damages may be recovered, may happen 
 from accidents arising from a very slight degree of negligence, as 
 well as from those where there has been a gross disregard of the rights 
 cf others ; as the injury from being run against in the highway in the 
 night, occasioned by the defendant's driving on the wrong side of the 
 road;* where the defendant drove a high spirited horse which he 
 CJiild not control and it ran against the plaintiff; or where the injury 
 was occasioned by carelessly pulling the wrong rein in driving ; or by 
 fastening his horse by an insufficient halter, which he broke f or the 
 imskillfully building a wall which fell and injured the plaintiff; or 
 ti e digging a pit inthe highway into which the plaintiff fell. 
 
 § 484. If the injury happen from unavoidable accident, neither 
 yarty is responsible for it.° It is therefore necessary as a general rule 
 for the plaintiff to show that there was negligence on the part of the 
 defendant, and none on his own, the burden being on him.' But the 
 very same evidence which proves the occurrence and the injury in 
 Connection with the ordinary habits, conduct and motive of men, is 
 frequently sufficient to prove the negligence or to raise a presumption 
 thereof^ Ordinarily the question is_ one for a jury.' The case may, 
 however, be st> clear upon the one side or the other as to make it, as 
 in other cases, a question of law for the court to decide.^" As an 
 
 •21 Wend. 615. See also 6 Hill, 593. 9. 32 Barb. 144. 41 id, 375. 16 111. 300, 
 
 29 Barb. 234. 36 id. 230. 558. 18 id. 349. 7 Wis. 425, 527. (But 
 
 n Daly, 89. See also 26 111. 255. 38 see 13 Cal.,599.) 23 Cal.268. Ante,§ 483. 
 
 N. Y. 455. ' 2 Kern. 236. 18 N. T. 534. 30 id. 
 
 »36 N. Y. 43. 65. See 33 Barb. 574. 34 Barb. 356. 40 
 
 * 14 John. 433. id. 193. 
 
 ' 1 Bing. 213. 41 Barb. 375. ° 20 Barb. 282. 31 id. ggs. 
 
 • 1 Bing. 213. Lalor, 193. 17 Wis. 487. 30 How. Pr. 
 ' 2 Kern. 236. 18 K. Y. R. 248. 34 id. " 29 N. Y. 826. 32 B. 
 
NEGLIGENCE OF SEEVANTS AND AGENTS. 26S 
 
 instance of tMs, we may cite the case of an ejectment of a passenger 
 from a car wMle in motion, and this although he is liable to an ejec- 
 tion in a proper manner.'^ 
 
 § 485. The injuries may arise, as was said in section 481, from the 
 negligence of one's servants or agents engaged in the transaction of 
 his business. In this case the action may be brought against the prin- 
 cipal and his agent, or the master and his servant jointly.* It has 
 been said to be otherwise, however, if the injury were occasioned by 
 the agent's or servant's willful act, excepting in the case of iajuries to 
 passengers in a carriage kept by a common carrier of passengers. In 
 the latter ease the owner of the carriage is responsible for the wrong- 
 ful acts of his servants by which his passengers may suffer.' This is 
 also the statutory rule in New York for carriages on any turnpike or 
 highway.* But even aside from that, more recent decisions in that 
 state and elsewhere hold that the principal or master is liable-for the 
 agent's or servant's willful act, when that act, though willful (and also 
 when against the master's express directions, as some cases hold, 
 though others hold the contrary), was within his employment and 
 authority, and necessary in connection therewith.^ If the negligence 
 is, caused by the servant's intoxication the master is still liable.* 
 
 § 486. In illustration of the rule that one is liable for injuries sus- 
 tained by the negligence of his servant, if a servant in the course of 
 his master's business negligently drive his cart against the carriage of 
 another person, by which he is injured, or if he obstructs the high- 
 way by which a traveler 'sustains an injury, the master is liable ; thus 
 in an action against the master for an injury occasioned by the 
 obstruction of a highway by a pile of wood, laid there by his servant, 
 where it appeared that the master had been accustomed to lay his 
 wood there for several years, and that the servant, while he- was sick 
 and without his knowledge, had placed it there, it was held that this 
 was an act in the course of his business as a servant, and the action 
 was sustained.'' In such a case, if the wood pile had been placed on 
 the defendant's land, within the road fences, but not within the true 
 lines of the highway, the act would have been excused. The owner 
 
 ■ 23 N.-T. 343. • 1 R. S. 696, § 6. 3 id. (Banks' 5th ed.) 
 
 ' 1 Cowen, 109. 6 id. 189. 19 Wend. 966. ' ' 
 
 343. 4 Duer, 473. 32 N. T. 355. 18 111. ' 3 Corns. 479. 17 N. Y. 362. 30 How. 
 
 488. 43 Mo. 377. Pr. R. 315. 28 111. 434. 33 id. 131. 36 
 
 * 19 Wend. 343. 30 How. 315. 5 Bosw. Ind. 70. 13 Iowa, 348. 19 id. 36. 
 
 5:6. « 33 N. Y. 369. 
 
 ' 2 Str. 1083. 6 Cowen, 189. 
 
264 INJUEIES TO THE PEESON. 
 
 need not fence up to tlie boundary of tlie highway ; and if he does 
 not, he may place an obstruction without his fences and out of the 
 road, without being liable to another for an injury in consequence of 
 it. But where the relation of principal or master, and agent or ser- 
 vant does not legally exist, as in general it does not, where the work 
 is done under a contract, and the injury occurs from the act or negli- 
 gence of the seryant of the contractor, the contractor only, and not the 
 party contracting with him, is responsible.'- To this general rule 
 there are, however, some exceptions, as where the work or erection is 
 itself a miisomce, or where the injury was itself a necessary result of 
 the contract.^ 
 
 § 48T. In a case where the owner of a carriage hired of a stable 
 keeper a pair of horses to draw it for a day, and the owner of the 
 horses provided a driver, through whose negligence an injury was 
 done to the plaintiff, the court held by a divided vote that the owner 
 of the carriage was not liable.^ This was on the principle that the 
 driver was not the servant at the time being -of the owner of the 
 carriage. 
 
 § 488. The liability for injuries arising from the negligence of ser- 
 vants and agents, extends to the acts of subordinate persons employed 
 by the agents for a party in .any of his business which requires their 
 services, or makes it necessary or proper that they should be 
 employed.* Thus, where one employs another to build a chimney, 
 who employs A to assist him, and A lays lime in the highway, by 
 which a carriage is overturned and an injury ensues, the employer is 
 liable.' So, where the owner of a farm employs an agent to work it 
 for him, and he employs servants who are paid from the funds' of the 
 principal, the principal and not the agent is responsible for any injury 
 sustained by their negligence or want of skill.^ In these and similar 
 cases there is an imphed authority in the agent to employ the subor- 
 dinate agents, and he is not responsible for their negligence.'' 
 
 § 489. Wherever "'a master becomes liable for an injury sustained 
 in consequence of his servant's negligence, he can maintain an action 
 
 'lSeld.48. 4 id. 233. 1 Kern. 433. 17 Duer, 363. 8 Ind. 137. (See 6 Mees. & 
 
 N. Y. R. 104. 39 id. 591. 36 Barb. 288. 4 "W.499.) 
 
 Bjsw. 140. 5 OMo N. 8. 38. ^5111.434. ' 3^ N. T. R. 355. 39 Barb. 419. 40 
 
 " 2 Seld. 436. 3 id. 497! 3 Denio, 442. id. 380. 
 
 5 Duer, 495. 38 Barb. 198. 8 Oliio N. S. "1 Bos. & Pul. 404. 
 
 358. 3Min. 297. 25111.434. 3 Black. U. » 5 Barn. & C. 554. 
 
 8. 418. ' 6 Term R. 411. 
 
 « 5 Barn. & Cress. 547. 1 Seld. 54. 3 
 
rNJUEIES BY NEGLIGENOE OF CO-SEEVAIJT. 265 
 
 over against Mm for the damages he is compelled to pay in conse- 
 quence of it.^ And, it is scarcely necessary to say that, the master is 
 not liahle for any injury to his servant while in his employ when it 
 was occasioned by the servant's own negligence.* 
 
 [§ 489 a.] A master is not in general responsible to those in his employ 
 for injuries resulting from the negligence, carelessness or misconduct of a 
 fellow servant, engaged in the same general business,' and this although 
 the grades of the two servants are different, or they are not at the time 
 engaged in the same operation or particular work, if they are in the 
 employment of the same master, and both employed and engaged in 
 the same common enterprise, and to perform duties and services tend- 
 r ing to accomplish the same general purposes.* But the master is liable 
 to his servant for any injury^ happening to him from his (the master's) 
 misconduct or personal negligence ; and, therefore, if the master know- 
 ingly employs unfit and incompetent servants and agents, or improper 
 and unsafe machinery, or if he was ignorant of the same through his 
 own negligence and want of proper care, and 1;he injury results from 
 these causes, the servant or agent may maintain his action,' unless he 
 had the same knowledge as his employer, or the same means of knowl- 
 edge of this unfitness and incompetency, or these other defects from 
 which the injury has arisen.^ That the servant is a minor, makes no 
 difference in the rule.'' If the servant injured is connected with one 
 de.partment or branch of service, wholly unconnected with that with 
 which the one committing the injury is connected, although the same 
 person or company is the employer, the injured servant may recover 
 against the employer.* 
 
 § 490. In New York it is provided by statute that whenever any 
 persons traveling with carriages shall meet upon a public road, they 
 shall seasonably turn their carriages to the right of the center of the 
 road, so as to permit them to pass without interference or interrup- 
 tion.' The term carriages, includes all classes of vehicles used for 
 
 • Reeve's Dom. Eel. 377. Barb. 366. 1 Daly, 431. 7 Hurlst. & N. 
 "ielll. 99. 987, 4 Seld. 175. 20 Barb. 449. 5 
 » 1 SelcL 492. 17 N. T. 153. 18 id. Ohio N. S. 541. 17 id. 197. 10 Ind.. 554 
 
 483. 35 id. 562. 6 Ind. 205. 13 id. 23 id. 36. 6 Gal. 309. 11 Iowa, 421. 43 
 
 866. 18 id. 326. 8 Oliio N. S. 249. 11 Mo. 187. 45 111. 197. 
 
 id. 417. 31 111. 30. 23 id. 633. 7 "Wis. ' 35 N. Y. R. 566. 38 How. Pr. R. 473. 
 
 435. 18 id. 700. 10 Mich. 193. 11 Iowa, 33 Ind. 36. 
 
 421. 13 Minn. 357. 36 Mo. 484. ' 9 Gush. 112. 
 
 * 35 N. Y. R. 563. 17 id. 158. 18 id. ' 5 Ind. 339. 7 id. 436. 
 
 433. 1 Seld. 493. 18 Ind. 236. 23 id. 81. » 1 R. S. 695, § 1. 3 id. (Banks' 5th ed.) 
 ' 35 N. Y. R. 563, 5, 7. 34 id. 410. 41 965. 
 34 
 
266 LAW OF THE KOAD. 
 
 the transportation of persons and property. The right of the center 
 of the road is held to mean the right of the center of the worked part 
 of the road ; although the whole of the smooth or most traveled path 
 may be on one side of the center. The traveler should therefore in 
 passing, keep the right of the center of the worked part, altliough 
 the traveled path lie entirely on the left of that center, so as to render 
 it necessary for him to turn completely to the right of it and leave it 
 entirely to the person he is meeting. And it is held to be no defense 
 to. an action for a collision, that he attempted to prevent it ; that the 
 road on his side was rough and rutty, and that it was more difficult for 
 him than for the other party to turn out. Unless the obstacles to 
 turning out are insuperable or extremely difficult, he is, without^ 
 excuse.^ In the winter, when the ground is covered with snow, the 
 center of the road means the center of the beaten or traveled track, 
 without any reference to the worked part.^ This statute has refer- 
 ence only to the traveling in carriages or other vehicles included 
 under that general term. Consequently when one horseman meets 
 another, or meets a vehicle on a highway, he is not required to turn 
 out in any particular direction. He must use prudence and care, 
 under the circumstances, turning to the right or left as these direct 
 him.' The same is the rule relative to the meeting of ordinary vehi- 
 cles with railroad cars.* 
 
 § 491. "Within the rule governing in cases of injuries by negli- 
 gence, and the law of the road as provided by the above statutes, 
 where a collision happens upon a highway, it would in ordinary cases 
 be sufficient to show that the plaintiff was on the right side of the 
 road, and that the defendant drove against him. This would fix 
 negligence upon the defendant ; for he could not insist that the col- 
 lision was unavoidable, which he might have prevented by keeping 
 on his own side of the road. Yet if the street is sufficiently wide, 
 although the defendant were on the wrong side of it, the plaintiff 
 would not be justified in crossing over to it and interfering with him, 
 merely because the law authorized him to drive upon that side ; and 
 if in consequence of his doing so the defendant unintentionally ran 
 into his carriage or against him, the plaintiff would have contributed 
 by his negligence to the injury, and would be entitled to no damages 
 against the defendant.' It is therefore held that the rule of the road 
 is not to be held strictly where by departing from it injury can be 
 
 ' 7 Wend. 185. • 15 N. Y. 380. 41 Barb. 8T5. 
 
 ' 13 Barb. 613. ' 2 Esp. 685. 5 id. 44. id. 273. 2 Kern. 
 
 » 24 Wend. 465, 472. 429. 17 Barb. 94. 21 id. 69. 
 
INJUEIES FEOM OBSTEUCTI0N8. 267 
 
 aToided. Prima facie, the party on tlie wrong side of the road is 
 liable, but if it be shown that the party on the right side might easily 
 and conveniently avoid the collision, he will be without remedy for 
 the injury he has sustained.^ 
 
 § 492. The same rule which prevails in relation to iujuries by col- 
 lisions upon the road, prevails ia relation to injuries sustained by ves- 
 sels running foul of each other, with this modification. If the collision 
 is occasioned by the carelessness of the person injured, or if he in any 
 degree contributed to it, he cannot recover from the other. If a pas- 
 senger is injured by the negligent act of the persons navigating both 
 vessels, he could bring his action against both or either of them.^ 
 
 § 493. The injury may arise from an act committed iu violation of 
 law, but without an intention to injure any one, as where one placed a 
 pile of wood or other obstruction in the highway, by means of which 
 the plaintiff was injured.' If, however, the obstruction is in such a 
 position as to be plainly visible and easily avoided, if one in the day 
 time carelessly drive into it and is injured, it is his own fault.* And 
 if the highway was one claimed, not by having been laid out, but by 
 user alone, and was in fact but two and a half rods wide, and it being 
 questionable whether the wood was actually within the road as 
 established by the use, it was held properly left to a jury to deter- 
 mine whether or not the wood was in the highway, for all the land 
 within a highway fence is not necessarily subject to the right of way, 
 and when it is not it may be occupied by the owner, and if he place 
 an obstruction there, he is not liable for an injury which another sus- 
 tains by running against it.^ The law of the road is not so inflexible 
 as to forbid all occupation of highways or of the streets of cities and 
 villages, except for the purposes of passage. Buildings may be moved 
 along them f goods may be temporarily deposited therein in their 
 transit to the storehouses, or for wharfage ; persons and carriages may 
 stop temporarily therein ; freight, goods or fuel may be delivered 
 therein at business or other houses. They may be repaired, and mate- 
 rials therefor may be deposited therein.' An excavation may be 
 made into them, extending a reasonable extent, in front of a lot where 
 the owner is about erecting a house. Building materials may be 
 placed therein, if that use is reasonably necessary at that time and 
 place ; and,,generally, especially in a city, situations and circumstances 
 
 ' 3 Car. & Payne, 554. But see 5 C. B. < 11 East, 60. 
 N. S. 667. 7 Wis. 236. ' 6 Cowen, 189. 
 
 » See 2 Kern. 425. " 35 N. H. 357. 
 
 = 6 CQwen, 189. 4 Iowa, 199. 8 Ohio N. 8. 358. 
 
268 NEGLIGENCE IN KEEPING ANIMALS. 
 
 may arise where a deviation from the strict law of the road is neces- 
 sary and proper ;^ but actions wUl lie for injuries occasioned by them, 
 even when unaccompanied by negligence, where the party creating 
 them had no special authority for that purpose.* And a street must 
 not be unnecessarily nor unreasonably monopolized or used in these 
 various ways, either in time or as to extent of occupation.^ 
 
 § 494. One is liable for injuries to the person arising from negli- 
 gence in the keeping and care of animals. If 'he keep an animal 
 naturally wild or ferocious, and it escapes and injures any person, he 
 is responsible for it without notice.* He is not, however, answerable 
 for injuries to the person of another committed by domestic animals, 
 as horses, cattle, dogs and the like, unless he has had notice that they 
 had previously attacked persons, or is guilty of some negligence in 
 regard to them.' If, however, he knows that his bull has attacked 
 a man, he is answerable for any injury which he afterward does, or 
 if he knew that his dog had bitten mankind, an action will lie if the 
 dog bite one, though he carelessly trod upon his toes.* The owner's 
 knowledge of the animal having previously committed a similar 
 injjiry, must be 'shown, but it may be by circumstantial evidence. 
 Where one was severely bitten by a dog, and the owner promised to 
 make her a pecuniary recompense, but there was no proof that the 
 dog had previously bitten any one, the court held the circumstances 
 were not sufllcient to authorize a jury to infer the knowledge.'' 
 Proof that the defendant had warned a person to beware of the dog 
 lest he should be bitten, in one case, and in another that there was a 
 report that the dog had bitten, and that his master had thereupon tied 
 him up, was submitted to the jury upon which to find whether the 
 owner knew of the dog being accustomed to bite. Other similar 
 cases are cited in the notes.* The general rule in regard to animals 
 is that their owner, or the one who harbors them, must use reasona- 
 ble care to prevent their doing an injury, that care depending on the 
 animal itself, its character and disposition, and the natural conse- 
 quences arising from the want of care in keeping them from doing 
 harm.' One case holds that where one drives a number of cattle 
 
 ' 8 Ohio N. S. 358. 13 Ind. 515. 30 id. 3 Keyes, 263. 23 Barb. 834 30 id. 147. 
 
 53. 2 Dowl. & Ry. 255. 23 111. 140. 33 Wis. 73. 
 
 " 18 N. Y. K. 79. ' 2 Str. 1264. 13 John. 339. 31 Conn. 121. 
 
 » 8 Ohio K S. 858. 7 Wis. 484. ' 4 Gamp. 198 ; but see 2 Or. Mees. & 
 
 * 2 Ld. Ray. 1583. 8 Barb. 630. 38 Ros. 496. 
 
 id. 14. 4 Iowa, 283. » 1 Stark. 285. 2 Esp. 483. 6 Wels. 
 
 ' 1 Corns. 615. 4 Deaio, 137; Id. 500. H. & G. 697. 
 
 ° 26 Ind. 334. 
 
INJURIES BT ANIMALS. 209 
 
 througli tte streets of a city, he is held to the same degree of care, 
 and is liable for damages in the same instances that a carrier of 
 passengers would be ;^ as which see ante § 105. 
 
 -There is an exception to the rule of the necessity of proving know- 
 ledge, and that is where the animal doing the mischief is unlawfully 
 in the close of another, and there commits the injury to property 
 rightfully in the close, in which cases the action is for the trespass to 
 the real estate, and the other injury is alleged merely in aggravation.^ 
 If the owner negligently allows an animal to be where he may do an 
 injury, as if he allow a horse to go loose and unattended on the streets 
 of a city where he kicks a man, the owner is liable although he was 
 not aware of any viciousness.* 
 
 § 495. Where the injury is sustained from an animal known by the 
 owner to be vicious, he will be liable, although he has undertaken to 
 secure it, if the means employed were not effectual.* 
 
 [§ 495ffl.J A statute in New Tbrk' requires the owners of wUd ani- 
 ruals to give notice of their approach to travelers. Prior to the 
 enactment of this statute it was held, in that state, that where a 
 person sued for an injury caused by his horse taking fright at 
 an elephant passing along the highway, he could not recover with- 
 out showing that such was the usual effect of the appearance of an 
 elephant upon horses, and that the owner knew it, or had notice 
 thereof.' 
 
 § 496. Every man may keep a dog for the protection of his house 
 and his property, and may cautiously use .him for that purpose, and 
 if any one incautiously go into his yard at night after the dog is pro- 
 perly let loose, and he is bitten, no action will lie.' So if he is bitten 
 in consequence of being on the land of the owner of the dog where 
 he is not entitled to go. But if he have no means of knowing the 
 danger, and had a right to be where he was, and is not in fault in 
 any respect, he may recover, although the owner had set up a notice 
 warning people of the danger, which he, being illiterate, could not 
 read.* And although, as a general rule, a trespasser cannot recover 
 for an injury received from a dog necessarily or properly kept for the 
 protection of the grounds,® yet where the defendant knowingly per- 
 
 •38 Cal. 618. '1 Bsp. 303. 17 Wend. 496. 4 E. D. 
 
 « 4I?enio, 137. 1 Corns. 51S. 11 Barb. 387. Smith, 63. 
 
 » 39 N. T. 400. ° 4 Car. & Payne, 297. Moody & M. 505. 
 
 ' 3 Car. & Payne, 138. ° 17 Wend. 498. 4 Car. & Payne, 397. 
 
 •Lawsof 1863, ch. 113. Moody &M. 505. 7 Taunt. 519, 530. 
 • 38 Barb. 14. 
 
270 mjUEIES BT NUISAirCES. 
 
 mitted a ferocious dog to be at large upon his premises, which would 
 worry persons passing over his fields in the day time, although tech- 
 nically trespassers, he was held liable for the injury committed by him 
 upon a person so trespassing.* 
 
 § 49T. An injury to one's personals sustained when his health or 
 comfort is impaired by any private nuisance, or any unwholesome, 
 noisome or offensive erection made by another, as a mill-pond which 
 generates unwholesome odors, a hog-pen, a slaughter-house, tannery or 
 other building where business is conducted which disagreeably infects 
 the air of the neighborhood.^ And the action may be brought 
 against the party erecting it, or any one who continues to use it.* 
 But although there is yet some little doubt on the subject, the better 
 rule would seem to be that the one who continues to use a nuisance 
 erected by another, is not liable for the damages caused by its conti- 
 'nuance until after notice of its character and to remove it.* The better 
 way is to give the notice before bringing the action. To maintain 
 the action, the nuisance must affect the plaintiff; but a trifling dam- 
 age will be sufficient.^ A public nuisance, where the injury is com- 
 mon to all the citizens of the state, as an obstruction in a highway or 
 navigable river, will not warrant it unless the plaintiff has been 
 actually injured by it.* But if he falls over an obstruction by which 
 his leg is broken, or he be otherwise injured, the action will lie. If 
 the plaintiff's damage is not peculiar to himself, but is common to 
 him and many others, operating in the same manner upon the indi- 
 viduals composing a particular class, though a portion only of the 
 whole community, he cannot recover.'' "It is said in one case, that 
 nothing can be a nuisance to which the agency of man does not con- 
 tribute.^ 
 
 [§ 4:91a.] If an owner of lands erect-s a barn so built as to be a 
 nuisance upon them, and then lets them to a tenant who continues 
 the nuisance, the owner wiU be responsible for the damages occasioned 
 thereby ; but if the nuisance is occasioned by the use of the barn in 
 the way it was intended to be used, the owner is not liable unless he 
 
 " 17 "Wend. 496. Also 3 Keyes, 363, • 3 Kem. 486. 24 Barb. 404. 1 Dutch. 
 
 269, 370, and refs. 4 Sneed, 58. 97. 3 id. 457. 30 Ala. 318. 11 Mich. 77. 
 
 " 9 Paige, 575. 3 Barb. 157. 23 id. 460. 1 Dovall, Ky. 354. 
 
 1 Hilton, 136. 4 City H. Rec. 87. 15 ' 7 Cowen, 609. 8 id. 146. 38 Vt. 143. 
 
 Abbott, 445. 4 Denio, 311. 4 Wis. 387. » 8 Barb. 437. 6 Hill, 393. Infra", 
 
 8Ind. 494. 13 Ohio N. 8. 393. §556. 
 
 » 4 Denio, 311. 5 Coke, 100, 101. Willes, ' 8 Cowen, 146 ; but see 5 Barb. 88, 84. 
 
 583. 10 Mass. 73 MO Wis. 613. 
 
ENTICING A WIFE, CHILD OK SEEVANT. 271 
 
 knew or had reason to know, when he let the premises, that thg,t use 
 would prove a nuisance.* 
 
 § 498. There are a variety of cases where a man is injured in the 
 character of husband, father or master, as where on account of the 
 negligent acts of another, his wife, child or servant is hurt, where 
 they are enticed away from him, or where one has criminal inters 
 course with his wife, or seduces his daughter or servant. So where 
 the person seduc'ed was the illegitimate daughter of the j)laintiff 's 
 wife, who had been adopted, and bred and brought up by me plain- 
 tiff.^ The law affords a remedy in all these cases, but it is not always 
 within the jurisdiction of a justice. His jurisdiction for this class of 
 cases is limited, in New Tork, to actions "/or an injury to the 
 person," which is not " an assault, battery, false imprisonment, libel, 
 slander, malicious prosecution, criminal conversation «or seduction."^ 
 Actions for criminal intercourse with one's wife, daughter or servant, 
 are excluded. In the cases, however, where a wife, child or servant 
 is injured by the negligence of another, as by an accident occasioned 
 from his carelessness or inattention, or by the unskillfulness and 
 negligence of a physician or surgeon, the injuries are to the person, 
 although not to the person of the husband, father or master, and not 
 within the exceptions of assaults and ' batteries contained in the 54th 
 section of the Code of Procedure. They would seem, therefore, to be 
 within the jurisdiction of a justice of the peace, though in most cases 
 it would be better to bring the action in a court having general juris- 
 diction, or to bring it in the name of the person actually injured. If 
 the party injured be an infant, the action may be brought in his name 
 as well as if he were an adult.^ 
 
 § 499. Enticing a wife from her husband, or a child or servant 
 from its father or master, is a good cause of action.' If a wife be 
 enticed away by her father, bad or unworthy motives must be shown 
 before the action can be sustained by the husband." Merely allow- 
 ing the wife to come or remain in his house even by a stranger, and 
 much less her father, from good motives, will not give the husband a 
 right of action. In proper cases, where humanity requires it, or the 
 conduct of the husband is such as to justify it, any party may harbor 
 her, although done against the husband's express prohibition. Parents 
 
 » 33 Barb. 444 9 Md. 108. ' 5 John. 196. 13 id. 323. 15 Barb. 499. 
 
 " 31 Barb. 373. 4 id. 335. 
 
 = Code of Procedure, § 53, sub. 3, and '5 John. 196. 1 Keyes, 390. 6 Abbott 
 
 § 54, sub. 3. N. S. 151. 
 *31 "Wend. 615. 
 
272 HAEBOEING A WIFE OB SEETANT, 
 
 may be protected in such cases, on facts wliicli would not protect a 
 stranger.^ The statements of the wife that she has been abused are 
 sufficient, where the action is for harboring her.* But when it is for 
 enticing her away they are insufficient, as the fact itself must be 
 proved.* And the facts may be sufficient to justify a harboring of 
 the wife after she has left her husband's house, when they would not 
 excuse the advising her to leave or carrying her away.* Where a 
 defendant permitted his wife's mother to live vsdth him, although 
 forbidden to do so by her husband, but without having enticed her 
 away, and not opposing the husband in his attempts to reclaim her, 
 an action was held not to lie. Something farther than, this is neces- 
 sary ; something tending to prevent or dissuade the wife from living 
 with her husband, although slight acts of that character will be 
 sufficient.^ If the person harboring a hired servant did not know 
 that he was such, he will not be liable for his wages unless he refuses 
 to restore him -on demand.* It has been doubted whether this class 
 of cases is within the jurisdiction of a justice of the peace in New 
 York, not being strictly for " injuries to the petson." In 15 Barb. 
 499, above cited, no objection seems to have been made to the juris- 
 diction of the justices' court, in which- the cause was originally 
 tried. 
 
 § 500. Prior to the -adoption of the Code of Procedure in New 
 York, where one beat the minor child or apprentice of another so 
 that the latter suffered a loss of its service, or was put to expense in 
 having it cured, he might maintain an action before a justice of the 
 peace for the loss of service and expense to which he was subjected, 
 though the action for the direct injury to the child was an assault and 
 battery and not within the justice's jurisdiction.' The language of 
 
 '31 Barb. 439. 4 id. 235. 80 id. 663. KelationS, p. 374. A parent has the right 
 
 Peake, 83. 5 John. 196. to inflict moderate corporeal punishment 
 
 "Peake, 83. 1 Keyes,.393. upon his child under full age for disobe- 
 
 ' 30 Barb. 663. See 31 id. 439. dience to his lawful commands, negli- 
 
 * 30 Barb. 663. gence in his business or insolent he- 
 
 ° 3 Mass. 317. 31 Barb. 439, 443. havior. A master has the same authoritj 
 
 ° 6 John. 374. over his apprentices and menial servants 
 
 'Cro. Jac. 618. 1 Esp. 317. Eeeve's to whom he stands in the place of a 
 
 Dom. Kel. 375. Code of Procedure, § 53, parent, but not to servants of full age, 
 
 subd. 3. It may be useful in connection although members of his family. In 
 
 with the text to embody here a condensed ordinary cases the master's wife does not 
 
 abstract of the general principles of law possess the right, but if the servant is so 
 
 which relate to the corporeal punishment young that the principal care over him is 
 
 of minor children, apprentices and pupils devolved upon her, the duty of punishing 
 
 in schools, laid down in Reeve's Domestic him for improper behavior belongs to her. 
 
INJUEIES TO REAL PEOPEETT. 273 
 
 the Code seems however to exclude the action of the father for his 
 loss of service and expenses, as well as that of the child for his 
 injuries. The former can hardly be called an action for injury to 
 the person, although it is for a pecuniary loss in consequence of an 
 injury to the person of the child. And it is clearly not one for 
 " injuring personal property." 
 
 § 501. II. Actions foe mjuEiEs to eeal peopeety. This class of 
 actions may be maintained for any injuries which may be committed 
 to real estate whether direct or consequential. 
 
 § 502. The term real property -used in the statute is synonymous 
 with la/nd, and comprehends in its meaning any portiei^ of the surface 
 of the earth, whether covered with water or not, together with all 
 buildings and erections thereon,^ excepting such erections for the 
 purposes of trade as are temporarily attached thereto. The spon- 
 taneous growth of the soil, as grass, trees and fruits while growing 
 and before they are severed from it, are parcel of the real property, 
 though crops of grain or vegetables which are sown or planted from 
 year to year are, while growing, the personal property of the owner.' 
 And yet such crops, if growing at the decease of the owner of the 
 land, descend to the heir with the real property.' Fences, and rails 
 used as fences, although temporarily removed from their places, are 
 part of the land, excepting where put up by a tenant or other person 
 under an agreement with the owner that he may remove them.* But 
 rails cut on a farm and lying in heaps thereon, but not yet used in a 
 fence, or evidently not intended to be so used on the farm, are not 
 part of the realty.' Hop poles taken down for the purpose of gather- 
 ing the crop, and piled up waiting the next season, go with the land.* 
 An outgoing tenant who has placed such poles in the ground for his 
 own use, and with intent to remove them, has a right to remove 
 them as against his ' landlord, or his landlord's grantee.' In like 
 
 Ths right of punishing a servant Is per- 135, 177. Cro. Car. 197. 1 Ventr. 70. 
 
 sonal and cannot be delegated by either Cro. Jac. 865. 8 Mod. 130. Ld. Kay. 360. 
 
 master or mistress. A schoolmaster in 3 Bur. 566. 1 Bl. 438. 
 
 his own right and not by delegation of ' Co. Lit. 43. 3 Bl. Com. 18. 
 
 the parent possesses the same power to " 8 "Wend. 584. 1 Denio, 550. 1 Barb, 
 
 pmiish his pupil for improper conduct 543. 3 id. 613. 
 
 while under his care that the parent does ^ 3 Seld 597. 
 
 over his child. 9 Co. 76. ILd. Kay.310. ■'S Hill, 143. lComs.564. 30N.Y.E. 
 
 Str. 953. Cro. Jac. 630. In each of these 344. 4 Greene (Iowa), 146. Id. 304. 
 
 cases the party is not answerable unless ' 3 Scam. 383. 3 Greene (Iowa), 330. 
 
 the punishment is so disproportionate to " 1 Kern. 133. "^ 
 
 the offense as to indicate a bad temper or ' 36 Vt. 361. 
 I)ad intention in its infliction. See 1 Sid. 
 35 
 
274: EXTENT OF ONES LAND, 
 
 manner, manure whetlier scattered on a farm or lying in heaps, con- 
 stitutes a part of it.^ This, however, is limited to that which is the 
 produce of agricultural lands ; that^which is not, e. g., such as accumu- 
 lates in livery stables is personal property.'' Straw raised on the farm 
 is not manure.' Growing hops are personal property.* Trees 
 and plants raised for sale by a nurseryman upon premises leased by 
 him for a nursery, are regarded as personal property removable by 
 him during his term. It is otherwise if raised by the owner of the 
 land.^ 
 
 § 503. "Within the definition given in the preceding section all 
 water privileges, together with the right of flowing adjoining lands 
 appurtenant to any lands of the owner, are real property, injuries to 
 which are the subject of actions in the court of a justice of the 
 peace. 
 
 § 504. The owner of land lying upon a highway or stream not 
 navigable from the ocean, is presumed to own~to the center of the 
 highway or stream, until the contrary appear. Where his deed 
 bounds his lands " along the highway or stream^'' or " wpon it," its 
 legal effect is to grant to the center. So where the boundary line 
 runs " to the highway or sl/ream " it is understood to go to its center," 
 and the same if it is to the " north bounds of a river, and thence 
 easterly along the said river, so as to include so much of the island as 
 is situated within lot No. 2, which island lies near the said north 
 bounds," ' &c. If, however, the boundary is upon the north or other 
 line or side of the road, and along the side of the road, or along its 
 line or side, or the north or other bapk of a stream, or where a 
 boundary line runs to a tree or stake on the north or other bank and 
 thence along the said bank, the whole of the highway or stream is 
 excluded from the grant.' 
 
 § 505. Every man's land is in law sun-ounded by an imaginary 
 fence or 'dose, and every entry upon it without the owner's leave is 
 technically termed fyreahing his close, and the law implies some 
 damage from every breach, whether it be merely stepping upon the 
 land, or standing off from it and doing some particular injury to it, or 
 
 '2 Hill, 143. 15WeHa.l69. (Aliterin « 15 John. 447. 4 Hill, 369. 34 Barb. 
 
 New Jersey as to tliat in tlie bam yard. 515. 36 id. 136. S3 K. Y. R 61, 498. 
 
 4 Dutcb. 581.) 2 Wis. 308. 13 id. 692. 9 Iowa, 450. 22 
 
 " 17 How. Pr. R. 189. Cal. 484. 
 
 " 22 Barb. 568. ' 14 Barb. 316. 
 
 *36 Barb. 415. '15 Jolin. 447. 4 Hill, 369. 6 Denio, 
 
 ' 2 East, 90. 19 Iowa, 309. 7 Barb. 599. 3 Kern. 296. 16 Barb. 160. 34 id! 
 
 s2G3. 515. 8 Bosw. 357, 103. 
 
EXPEESS AND IMPLIED LICENSE. 275 
 
 anything growing from or affixed to it so as to constitute a part 
 ofit.i 
 
 § 506. The leave or license of the owner to enter upon his real 
 estate may be expressly given or implied from his acts or custom. 
 Express leave is given whenever the owner invites any one or the 
 public generally to come upon his premises or consents to the entry. 
 Of this description of leave, is the invitation which a tavern-keeper 
 or dealer in merchandise, by his public sign, holds out to all persons 
 desiring to deal with him to enter his inn or shop.' Implied leave 
 arises where, from the familiar intercourse of one neighbor with 
 another, he habitually enters upon his land or into his house for 
 friendly intercourse ; where the neighbors are in the habit of going 
 to the plaintiff's well or spring to fetch water ; where neighbors and 
 strangers go into his lands to view a curiosity, to drink at a mineral 
 spring ; or where the public are in the habit of using a way or path 
 which the plaintiff has left open for them. In such, and a vast variety 
 of similar cases, the consent of the owner of the soil is presumed from 
 the acknowledged rules of friendly iutercourse and good neighbor- 
 hood.^ 
 
 § 507. A license, whether express or implied, may at any time be 
 revoked by the owner of the freehold, unless it were made npon such 
 a valuable consideration as to be sustainable as a contract, or is 
 coupled with an interest, or is an incident to a valid grant, and neces^ 
 sary to the possession or enjoyment of the thing granted.* And, 
 when revoked, any attempt to exercise it after notice of the revoca- 
 tion, constitutes a wrongful entry.' Where the license was to an 
 individual, the notice of revocation should be given to him. If to 
 the public, it should be given with sufficient publicity to afford 
 reasonable information that it is withdrawn.^ Where, however, 
 there is a parol license to erect upon one's own land a building affect- 
 ing injuriously the light or air of the party giving it, he cannot after 
 the building is erected revoke it. The license is a direct encourage- 
 ment to expend money, and it is against conscience to revoke it after 
 the expenditure becomes beneficial. Such a license is not within the 
 statute of frauds.'' The death of the person giving the license, or his 
 
 V 
 
 > 3 Bl. Com. 309, 310. 19 John. 385. 380. 3 Duer, 258. 10 Bam. & C. 731. 
 
 "13 John. 408. SDenio, 635. 20 Barb. 11111.157. 15 Id. 397. 5 Dutch. N. J 
 
 351. 571. 19 Ind. 10. 
 
 ' 12 John. 408. 45 Barb. 358, and refs. ' 30 Barb. 251. 7 John. 285. 
 
 4 Ellis & B. 703. ° 30 Barb. 351. 
 
 no John. 346. 7 id. 385. 15 Wend. ' 3 Kent's Com. 452. Iii^r:!, g 511 ■ 
 
276 
 
 LICENSES IN AGEEEMENTS TO SELL LAND. 
 
 conveyance of the land to another is a revocation of a license.^ The 
 license is a complete justification for all acts within its scope, done 
 before revocation.* A verbal agreement whereby A. is to cut the 
 wood and brush on the land of B., and heap the brush for the wood, 
 having the ensuing winter in which to draw the wood away, is a 
 license, revocable at any time, as to the future, but vesting the title 
 in the wood already cut in A., and giving him a reasonable time in 
 which to remove it ; and if he does not remove it in a reasonable 
 time after notice by B. to do so, B. may set fire to his fallow, and is 
 not liable for any of this wood that is burned.^ 
 
 § 508. A license to one man to enter or cross my grounds gives him 
 no authority to take another with him.* But if I authorize him to 
 enter and do certain acts, as to cut down trees, dig clay, &g., he may 
 take with him such tools, cattle and servants as are n6edfiil to do it.' 
 And in general a license implies an authority to do everything neces- 
 sary to perform the act licensed.^ 
 
 § 509. An agreement for the sale of land does not of itself license 
 the person receiving it to enter upon it,'' nor does an express license 
 1^0 enter imply a right to cut and consume timber.^ Much less would 
 a contract to sell and convey land upon the performance of certain 
 future conditions by the purchaser, give him a right to enter or cut 
 timber before he has complied with them.' Neither does an agree- 
 ment made with one of several purchasers, that until all of them had 
 executed the contract of purchase, and a certain bond for the per- 
 formance of its covenants " no timber should be cut on the lot " 
 imply a license to the purchasers, after the contract and bond are 
 executed, to commit waste by cutting and carrying away the timber. 
 The most that can be implied from such a contract, is a permission to 
 the purchaser to enter in the meantime as a tenant at will and occupy 
 the land in such reasonable manner as tenants at will lawfuUy 
 may.^" 
 
 § 510. A tenant at mil who is one who occupies the land of another 
 by his consent, when no terms of a lease have been agreed upon as on 
 
 ' 35 Barb. 162, 167. 6 Md. 30. 36 Mo. 'Jac. Law Die. tit. License ; and see 
 
 178. 4 Mees. & W. 538. 8 Ad. & E. (N. S.) 8 Keyes, 363, 270. 
 
 757. "Willes, 195. 
 
 "eHiUiei. 8 Seld. 379. 39 N. Y. R. ' 9 John. 35, 331. 7 Cowen, 339. 6 
 
 334. 84 id. 30. 23 Barb. 336. 3 Duer, Barb. 116. 35 id. 167. 3 Oregon, 260. 
 
 355. 6 id. 363. 3 Wis. 250. Id. » 9 John. 35. 
 
 487. I ° Id. 331. 
 
 = 18 Barb. 347. "9 John. 331. 35 N. H. 563. 3 Ind. 
 
 * 1 Cowen, 570. 360. See 43 lU. 399. 
 
LICENSE GIVEK BY LAW. 277 
 
 an agreement to piireliase,^ or where, one has leased lands for one or 
 more years, and after the expiration of the term remains in posses- 
 sion,^ is not authorized to cut timher.' 
 
 § 511. A license to enter a house with a key will not justify an 
 entrance in a manner by which it is left in an exposed condition. A 
 tenant being desirous to sub-let his house left it locked, with autho- 
 rity to his landlord to let it if an opportunity 'offered, and for that 
 purpose deposited the key with his neighbor. An opportunity to 
 let the house occurred, but- the person having the key having 
 absconded, the landlord entered by placing a ladder against the 
 house and raising the first floor window, when after showing the 
 house he left it in the same state as before. The house was after- 
 ward entered by persons unknown and furniture taken from it. 
 The tenant having brought an action against the landlord for break- 
 ing and entering the house and leaving it insecure, in consequence of 
 which his property was stolen, it was held that the entry by the 
 window was without license.* 
 
 § 612. A license to enter upon lands is given by law in a great 
 variety of cases ; ° as to execute legal process issuing from any of the 
 courts ; to a landlord or reversioner to see that his tenant does no 
 waste and keeps the premises according to his duty or covenants, or 
 to prepare for the suit involving waste, with his witnesses ; to a 
 creditor to demand or request money due or payable there ; to any 
 person entering an inn or tavern to get refreshment ; * to one making 
 a lease excepting the treeg, to enter and show them to a purchaser ; ' 
 to a purchaser of a tree, a crop, a horse or any other article upon the 
 premises of the vendor, to go upon them to take it away.* But the 
 rule in the latter case is confined to an entry to take chattels which 
 were sold to him upon the premises by their owner. It does not 
 authorize^ one to enter upon another's lands to take away his own 
 chattel not purchased there.' 
 
 § 513. "Where one by virtue of a license erects a building on 
 another's land, the license cannot be revoked so entirely as to make 
 the person who erected it a trespasser for entering and removing it 
 after the revocation.^" 
 
 • 9 John. sup. 3 Ind. 360. ' 10 Co. 46. 
 
 '2 Caines, 169. Tay. L. & T. 41,43. 'Bac. Ab. Trespass F. 11 East, 366. 
 
 11 Iowa, 583. 2 Vt. 107. 
 
 ' 9 John. 85, 881. ' 6 John. 5. 14 id. 406. 9 Barb. 
 
 * 3 Dowl. & Eyl. 714. 653. ' 
 
 '9Barb. 654,&c. 30 id. 16. "6 Verm. R. 388. See §§ 506, 507, 
 
 ' 3 Bl. Com. 313. 3 Ind. 387. 36 How. ante. 
 Pr. R 118. 
 
278 TEESPASS MUST BE WITH FAULT. 
 
 § 514. A distinction is made .between the tmlawM or wrongful 
 act of one who lias entered npon real estate by express license of the 
 owner, and a similar act where the entry was by license of law. In 
 the latter case although his entry were lawful, yet if he abuses his 
 authority his original entry is deemed unlawful, or in technical 
 language he becomes a trespasser db initio. In the other case, he is 
 not a trespasser from the beginning.^ Under the common law system 
 of pleading, trespass lies against the trespasser db initio, and trespass 
 on the case against the other. But, under the Code of Procedure, 
 this distinction is now abolished in New York, so far as the plead- 
 ings are concerned. 
 
 § 515. If, therefore, under the rules in the last section, one who 
 enters a tayern behave with rudeness, or one who comes upon 
 '^ premises with legal process, or to demand a debt payable there, 
 commit any excess, as to break doors, assault the occupants of the 
 house or any similar act, he is equally liable for the act as if he had 
 not been authorized in the first place to enter. But if one enters a 
 house to serye a subpoena on a person who is then therein, he may 
 use any necessary force to overcome any resistance he may meet 
 with in the service, and the fact that the wife of the person to be 
 served orders him to leave the house, will not make him a trespasser 
 in proceeding to serve the subpoena.^ The mere intention to do an 
 unlawful act where the intention is not carried into efiiect will not 
 warrant a recovery. Thus where one distrained a horse doing 
 damage, and was leading it toward a pound with intent there to 
 impound it before he had applied to the fence viewers to appraise his 
 damages, and the owner undertook to prevent him by force, it was 
 held that the distrainer was not a trespasser from the beginning.* 
 
 § 516. The entry upon another's lands to warrant an action must 
 be with some degree of fault, for if I, as I lawfully may, with my dog 
 drive my neighbor's cattle off from my land and the dog follows 
 them just into his land from which I call him as soon as possible, 1 
 am in no fault whatever and an action will not lie.* But if there is 
 any neglect, although the injury be slight, the action will lie, as 
 where one in cutting the grass in his own field carelessly cut over 
 the line and by mistake mowed a little of his neighbor's,' or where 
 in removing obstructions from a highway he carelessly or unneces- 
 
 ' 13 John. 414 5 Wfend. 506. 4 Denio, ' 20 John. 427. 
 
 319. 11 Barb. 390. 30 Ind. 469. Infra, *Poph. 160. 5 Denio, 255. 1 Cowen, 
 
 ^70-1. 87 n. Infra, §§ 538, 541. 
 
 ^20 Barb. 16. '8 Lev. 37. 
 
BY "WHOM TEE8PASS MAT BE BEOrGHT. 279 
 
 sarily injures his neighbor's crops, fences or buildings.* The action 
 may be maintained even though no damage was proved, whether the 
 injury was little or great, and even if it wete a positive benefit to the 
 owner of the soil.' Where one enters the premises of A. with a 
 crowd of persons, who, as he knows, have procured admission by 
 the violence of another, he is a trespasser.^ It is not necessary that 
 the act be willful to make it a trespass ; that it was ignorantly com- 
 mitted is no excuse.* 
 
 §517. When a highway is impassable, or is obstructed by the 
 owner of the land over which it runs, one may of necessity pass over 
 the adjoining lands, and when founderous he may remove a fence to 
 pass around the obstniction. It is otherwise, however, if the road is 
 his private one, for it is his own fault if it is not kept in repair.^ If 
 a public road is unlawfully obstructed, any person who wishes to use 
 the highway may remove the obstruction, and for that purpose may 
 enter upon the land of the party erecting or continuing it, doing as 
 little damage as possible.* 
 
 § 518. Where the defendant ascended in a balloon which descended 
 into the plaintiff's garden, and the defendant becoming entangled in 
 it and in a perilous condition, called for help, and a crowd came to his 
 assistance treading down the garden, it was held that the defendant 
 was answerable for the injury.'' 
 
 § 519. The action may be brought by the tenant in possession, if 
 the injury is done to the crops or fixtures, or to any portion of the 
 premises in which he has the property ; and in this case he may main- 
 tain his action against the owner of the land, for so far as all his 
 interest is concerned, the close is his.' The same rule applies to the 
 case of a purchaser by contract who is in possession, or any other 
 rightful possessor,' and to one who has acquired a right to the crops 
 alone or to dig gravel and clay, for the law judges such person in 
 actual possession so far of the land.*" But where the injury is to the 
 reversion, as when timber is cut or other acts of waste committed 
 which damage the owner of the estate,- the reversioner may bring his 
 
 > 7 Conn. 125. ' 19 John. 381. 
 
 = 21 Wend. 188. 1 Hilton, 39. 17 Conn. « 9 John. 108. 9 Cowen, 39, 43. 2 E. 
 
 288. 7 Ind. 38. ' D. Smith, 200. Id. 523. 1 Ohio, 251. 3 
 
 ^ 28 How. Pr. R. 98. Greene, Iowa, 548. 4 id. 461. 
 
 *23Cal. 306. nSBarh. 80. 17 Ind. 213. 26 14 386. 
 
 • 7 Barb. 89. Id. 309. 2 Show.. 28. See 43 111. 150. Id. 399. 
 
 Doug. 745 > 2 Allen, Mass., 543. '» 9 John. 108, 143. 
 
 » 18 Wis. 265. 
 
280 EVIDENCE OF POSSESSION. 
 
 action in 'New Tork by statute.^ And where tlie injury is to crops 
 gro\ving upon a farm worked by the tenant upon shares, the landlord 
 ■and tenant should unite in the action.* 
 
 § 520. Inasmuch as a justice of the peace in New York has no 
 jurisdiction of an action where the title to real property shall come 
 in question,' the plaintiff in an action for injury to real property can 
 only show his possession in order to maintain his action.* This is 
 usually shown by his fencing, cultivating or otherwise improving it, 
 or performing any ordinary acts of ownership over it, as by using it 
 foT a wood lot.^ Making pole bridges over a ditch by the side of a 
 road, for driving cattle iato a swamp, and the ranging of .cattle on 
 the same, and occasionally cutting a few trees thereon, is not a suffi- 
 cient possession, nor is cleaning out a fishing place in a public fiver.^ 
 But it is not necessary that every part be inclosed. The actual occu- 
 pancy of a part of a farm, a portion of which only is inclosed, with 
 a claim of title to the whole, is sufficient to show possession of the 
 whole.'' The plaintiff may show his own acts and declarations at the 
 time of his entry, and his deed in order to determine the extent of 
 his claim of possession as well as his acts of ownership. And this 
 would not be the involving of a question of title within the statute, 
 but merely the establishing of his possessory right. The deed it is 
 true may be used as evidence of title, but in such a case it may also 
 be used as evidence of possession only, or for other purposes i;han to 
 show title.* If there is no actual possession, the plaintiff must prove 
 title to allow him to recover, and this cannot be done in a justice's 
 court.' Where land is unoccupied, so that no actual possession can 
 be proved, the person holding the legal title is deemed to be in pos- 
 session so as to maintain an action for an injury to it.^" 
 
 § 521. "Where a tenant at will commits voluntary waste, as by cut- 
 ting timber, the waste terminates the tenancy, and the owner mav 
 bring his action against him.'^^ 
 
 § 522. The possession of land occupied by a highway is in the 
 owner subject to the use of iiie public for traveling, and he may 
 
 'IRS. 750, 1 8. 3 id. (Banks' 5tli ed.) ' 1 Caines, 858. 13 Jokn. 452. Code, 
 
 39. 39N. Y. R. 9. §8^. 31 Dl. 446. 
 
 »3Jolm.316. '25N. Y. 180. 43 Barb. 353. 
 
 " Code of Procedure, § 54, subd. 2. ' 8 Cowen, 115. 25 N. Y. 180. 
 
 *6Hm, 537. 20 Barb. 311. 37 id. 314. " 12 John. 183. 10 Wend. 639. 1 East, 
 
 ' 14 Wend. 239. 244. 2 Str. 1238. 
 
 » 3 Jones' Law, N.C 93. 12 John. 435. "7Jobn. 1. 9 id. 35. 4 Kent, 118. 
 
 Taylor L. & T. 386. 
 
EMBLEMENTS. 281 
 
 maintain an action against any one wlio appropriates any portion of it 
 for any other purpose, or who cuts timber upon it or digs into it.* By 
 the act of laying out the highway the public acquires the right of 
 preparing it for traveling and using it for that purpose. In doing 
 this the public authorities may iise the timber growing in it on any 
 one's farm which may be requisite to repair it and the bridges upon 
 the same farm.* Subject to this every other right in it belongs to the 
 owner as exclusively as before. The qualified possession which the 
 corporation of a city or village have in the streets, is not sufficient to 
 sustain an action by them for an injury to it as to their real estate.' 
 But the trustees of a religious society, whether incorporated or not, 
 have sufficient possession of their church to maintain an action for an 
 injury to it.* 
 
 § 523. Where a lease is for a fixed term, or is terminated by the 
 tenant, he is not entitled to emblements or crops growing and not 
 harvested at the end of his term, although they were sov/ed or 
 planted by him. Itj however, the lease is for the life of a person, or 
 terminable upon any uncertain event, as the will of the landlord, or 
 by act of law, the tenant is entitled to any crop which he has sowed 
 or planted before the happening of the event which puts an end to 
 his lease.' If the land is underlet, and the original lease is termi- 
 nated by the lessee, the under-tenant will be entitled to the growing 
 crop.* So the rule is the same where a man dies, his representatives 
 taking the crops.' But if the lease is determined after the ground is 
 plowed, but before crops are sowed, the tenant has no right to the 
 crops afterward sowed.^ Where the landlord mortgages the land, 
 and the mortgage is subsequently foreclosed, the crops will pass to 
 the purchaser f but if the mortgagor has agreed with the tenant that 
 he may take off any crops he may raise on the lands, and he subse- 
 quently sows in good faith, he will hold the crops in preference to the 
 mortgagee, or a purchaser on foreclosure.*" 
 
 § 524. The owner of a leasehold interest in lands with buildings 
 may recover his damages for the negligent iajury or destruction of 
 
 ' 16 N. Y. E. 97. 31 id. 151. 11 Barb. * 9 Wend. 414 
 390. 37 id. 543. 15 John. '■447. 30 id. " Taylor L. & T. 80, &c. 10 John. 360. 
 
 743 3 id. 357. 30 Wend. 121. 6 Mass. Id. 434. 15 IIJ. 397. 3 Bing. 11. 
 454. 6 Peters, 498. 9 Iowa, 450. Id. ' Taylor L. & T. 81. 4Har. &J. 139. 
 594. 16 Ind. 338. 5 Wis. 37. 38 Conn. ' Taylor L. & T. 81. 
 
 165. 
 
 = Taylbr L. & T. 83. 4 Hay. 17. 
 
 » 1 R. a 535, § 136. 3 id. (Banks' 5th ' 8 Wend. 584. 3 Denio, 174. 6 Barb, 
 
 ed.) 415, § 185. 6 Paige, 373. 370. 
 
 nBlackf.88. "Lalor,196. 
 36 
 
232 EIGHTS OF ADJACENT OWNEES. 
 
 the buildings.^ And if he erect buildings upon the land in an exposed 
 and hazardous situation from the existing use of the adjoining lands, 
 he is not chargeable with negligence within the rule that if the plain- 
 tiff's negligence concurs in producing the injury he may not recover. 
 "Where the plaintiff builds near a smithy, or on the track of a rail- 
 road, or near the usual course of a steamboat, he may recover for its 
 loss by fire occasioned by the negligence of the smith, or the servants 
 of the railroad or steamboat companies.* 
 
 § 526. Every owner of land has a right to use it in the situation in 
 which it was placed by nature, surrounded and protected by the soil 
 of the adjacent lot.- I can, therefore, maintain an action against my 
 neighbor who digs a pit on his own land so near mine that it causes 
 my soil to fall into it. But he has a right to dig a pit on his own 
 land, if necessary to its convenient use, where it can be done with- 
 out injury to mine in its natural state, and I cannot deprive him of 
 this right by erecting a building on my lot, the weight of which will 
 cause my land to fall into the pit. And if, in the exercise of ordi- 
 nary care and skill in making an excavation for the improvement of 
 his own lot, he digs so near the foundation of a building on my lot 
 as to crack it and cause it to settle, he is not liable for any injury.^ 
 Some doubt was thrown around these principles in i Corns., 196 ; 
 but subsequent cases affirm the doctrine as here stated.* If a land- 
 lord is under contract to repair, which he neglects to do, he is liable 
 for any injury, arising from such neglect, to the adjacent owner, and 
 happening dui-ing the tenancy.^ ' 
 
 § 526. The action may be maintained for injuries to land, occa- 
 sioned by the defendant's cattle or fowls or inanimate chattels, as 
 well as for direct injuries by wrongful act or negligence. The owner 
 of such animals as are not restrained by fences must keep them on 
 his own premises at his peril, and he is accoimtable for any injury 
 they do to his neighbors. He is not liable, however, for damages 
 committed by such animals as are usually restrained by fences, if 
 they escape from his premises into his neighbor's land through the 
 defect of a fence which the latter is bound to repair.* It is, there- 
 fore, important to examine the rules in relation to the maintenance 
 of fences. 
 
 ' 35 N. Y. 334. 6 Duer, 863. 22 Mo. 566. 31 id. 411. 18 Minn. 443. 
 
 ' 1 Denio, 91. ' See 19 Barb. 31 id. and 1 Butcher, 
 
 » 4 Paige, 169. 17 John. 92. 19 Barb, supra. 
 
 380. Slid. 409. 33 id. 458. 3 Corns. 163. » 43 Barb. 408. 
 
 35 Vermont K. 465. 1 Dutcher, N. J. 356. » 13 John. 433. 
 
DIVISION MSB OTHEE FENCES. 283 
 
 § 527. The statute of New York provides the following rules in 
 relation to division and other fences •} (§ 30.) Where two or more 
 persons shall have lands adjoining, each of them shall make and 
 maintain a just proportion of the division fence between them, in 
 all cases where one-half, .or more, of each of such adjoining farms or 
 lands shall be cleared or improved.^ (§ 31.) Where two or more 
 persons shall have lands adjoining, and not within the provisions of 
 section 30, each of them shall make and maintain a just and equal 
 proportion of the division fence between them, except the owner or 
 owners of either of the adjoining lands shall choose to let such lands 
 lie open to the public. If he shall afterward inclose it, he shall 
 refand to the owner of the adjoining land a just proportion of the 
 value at that time, of any division fence that shall have been made 
 and maintained by such adjoining owner, or he shall build his pro- 
 portion of such division fence.' (§ 32.) Where a person shall have a 
 farm or lands lying open, one-half or more of such farm or lands 
 being cleared or improved, he shall refund to the owner of the 
 adjoining land a just proportion of the value, at the time this act 
 shall take effect, of any division fence that shall have been made and 
 maintained by such adjoining owner, or he shall build his proportion 
 of such division fence.^ (§ 33.) If disputes arise between the owners 
 of adjoining lands, concerning the proportion or particular part of 
 fence to be maintained or made by either of them, such dispute shall 
 be settled by any two of the fence viewers of the town. (§ 34.) 
 When any. of the above mentioned matters shall be submitted to 
 fence viewers, each party shall choose one ; and if either neglect, 
 after eight days' notice, to make such choice, the other party may 
 select both. (§ 35.) The fence viewers shall examine the premises 
 and hear the allegations of the parties. In case of their disagree- 
 ment, they shall select another fence viewer to act with them, and 
 the decision of any two shall be final upon the parties to such du- 
 pute, and upon all parties holding under them. (§ 36.) The decision 
 of the' fence viewers shall be reduced to writing; shall contain a 
 description of the fence and of the proportion to be maintained by 
 each, and shall be forthwith filed in the office of the town clerk. 
 (§ 37.) If any person, liable to contribute to the erection or reparation 
 of a division fence, shall neglect or refuse to make and maintain his 
 proportion of such fence, or shall permit the same to be out of repair, 
 
 ' 1 R. S. 353 (Banks' 5tli ed.) 833. See » As amended 1866, cli. 340, § 1. 
 3 Wis. 10 for some provisions of a similar = As amended by the same statute, § 3. 
 law in that state. ' As amended id. § 3. 
 
284 DIVISIOlf AND OTHEE TENOBS. 
 
 he shall not be allowed to have and maintain any action for damages 
 incurred, but shall be liable to pay to the party injured all such 
 damages as shall accrue to his lands, and the crops, fruit trees <and 
 shrubbery thereon, and fixtures connected with the said land, to be 
 ascertained and appraised by any two fence viewers of the town, and 
 to be recovered with costs of suit; which appraisement shall be 
 reduced to writing, and signed by the fence viewers making the 
 same, but- shall be only ;prima faoie evidence of the amount of such 
 damages.^ (§ 38.) If such neglect or refusal shall be continued for 
 the period of one month after request in writing, to make or repair 
 such fence, the party injured may make or repair the same at the 
 expense of the party so neglecting or refusing, to be recovered from 
 him with costs of suit. (§ 39.) If any person who shall have made 
 his proportion of a division fence, shall be disposed to remove his 
 fence, and sufier his lands to lie open to the public, he may do so, 
 provided, such farm or lands are not one-half, or more, cleared or 
 improved at any time between the firs.t day of November in any one 
 year, and the first day of April following, but at no other time, giv- 
 ing ten days' notice, to the owner or occupant of the adjoining land, 
 of his intention to apply to the fence viewers of the town for per- 
 mission to remove his fence ; and if, at the time specified in such 
 notice, any two of such fence viewers, to be selected as aforesaid, 
 shall determine that such fence may with propriety be removed, he 
 may remove the same. (§ 40.) If any such fence shall be removed 
 without such notice and permission, the party removing the same 
 shall pay to the party injured, all such damages as he may sustain 
 thereby, to be recovered, with costs of suit. (§ 41.) "Whenever a 
 division fence shall be injured or destroyed by floods, or other casu- 
 alty, the person bound to make and repair such fence, or any part 
 thereof, shall make or repair the same, or his just proportion thereof, 
 within ten days after he shall be thereunto required by any persoQ 
 interested therein. Such requisition shall be in writing, and signed 
 by the party making it. (§ 42.) If such person shall refuse or neg- 
 lect to make or repair his proportion of such fence, for the space of 
 ten days after such request,' the party injured may make or repair 
 the same at the expense of the party so refusing or neglecting, to be 
 recovered from him with costs of suit. (§ 43.) "Witnesses may be 
 examined by the fence viewers on all questions submitted to them ; 
 and either of such' fence viewers shall have power to issue subpoenas 
 
 ' As amended ch. 361 of Laws of 1838. 1 R. S. (Banks' 5tli ed.) 833, § 37. 
 
DIVISION ASTD OTHEE FENCES. 285 
 
 for and to administer oaths to said witnesses, and eacli fence viewer 
 and witness thus employed shall be entitled to one doUar and fifty 
 cents per diem ; such fence viewers, or a majority of them, shall 
 determine what proportion thereof shall be paid by each of the par- 
 ties interested in such division fence, and reduce their determination 
 to writing, and subscribe the same and file it in the ofiice of the 
 town clerk where such fence viewers shall reside. The party refu- 
 sing or neglecting to pay such fence viewers, or either of them, shall 
 be liable to be sued for the same with costs of suit.^ (§ 44.) When- 
 ever the electors of any town shall have made any rule or regulation, 
 prescribing what shall be deemed a sufficient fence in such town, any 
 person who shall thereafter neglect to keep a fence according to such 
 rule or regulation, shall be precluded from recovering compensation 
 in any manner for damages done by any beast lawfully going at large 
 on the highways, that may enter on any lands of such person, not 
 fenced in conformity to the said rule or regulation, or for entering 
 through any defective fence. (§ 45.) When the sufficiency of a fence 
 shall come in question in any suit, it shall be presumed to have been 
 sufficient until the contraiy be established. In addition, the statute 
 of 1866, already referred to, provides (section 4) that, " Where two 
 or more persons shall own lands adjoining, in case either of them 
 shall sell, convey or devise such lands, or any portion thereof, the 
 owner of any division fence that shall have been theretofore made 
 and maintained by him, shall not be deprived of his interest therein 
 in consequence of such sale, except so far as it relates to the grantor; 
 and in all cases where such sale or devise shall interfere with or afifect 
 the division fences existing between such adjoining owners at the 
 time of such sale, or on receiving such devise, a subdivision of such 
 division fence shall then be made by all the adjoining owners affected 
 thereby, and each adjoining owner shall refund to the owner of the 
 adjoining land a just proportion of the value at the time of such sale, 
 or on receiving such devise, of any division fence that shall have been 
 theretofore made and maintained by such adjoining owner, or that 
 shall have been made and maintained by the person from whom he 
 received such title, or the adjoining own'er shall build his proportion 
 of such division fence. The value of such fence and the proportion 
 thereof to be paid by such person, and the proportion of the division 
 fence to be built by him, shall be determined by any two of the fence, 
 viewers of the town. 
 
 * As amended id. § 6. 
 
286 AGREEMENTS AS TO FENCES. 
 
 [§ 527a.] Notwithstanding these provisions, an appraisal by fence 
 viewers of the expense of making a portion of a division fence, as 
 provided in section 42, is not necessary to a recoTcry therefor. The 
 amount may be proved by those who know or can judge what itwas.^ 
 A fence built of rails, commonly called a crooked or Yirginia fence, 
 and being so built that every corner projects over the line, is a legal 
 fence under this statute.'' And the statute (§§ 30, &c.) applies as 
 well to lands partially fenced as to those the owner chooses to let lie 
 altogether open to common.' And it is also held that section 44 con- 
 stitutes a statutory bar to any action brought to recover damages for 
 injuries done by cattle entering through a defective fence, which the 
 party complaining is bound to maintain, in any town where the elec- 
 tors have prescribed what shall be deemed a sufficient fence.^ 
 
 § 528. The occupant of land who is interested in maintaining a 
 division fence, as a tenant under a lease, or at wUl, or at sufferance, is 
 entitled to avail himself of the remedies afforded by the statute as 
 well as the owner of the fee.^ 
 
 § 529. The notices and requests necessary to be given under the 
 provisions of the statute, except where its language expressly requires 
 that they should be in writing, may be given verbally, and where the 
 notice is in writing, its contents may be proved by parol.' 
 
 § 530. An agreement relative to the proportions or particular part 
 of a partition fence to be maintained by each, may be made between 
 adjoining owners without resorting to the provisions of the statute, 
 but in order to render it permanent and effectual it should be made 
 between the owners of the freehold.' And after such an agreement, 
 if a dispute arise concerning the proportion or particular part of the 
 fence to be maintained by each, it may be determined by the fence 
 viewers.' 
 
 § 531. The obligations of adjoining proprietors in relation to the 
 particular fence to be supported by each, may also be determined by 
 prescription, or an usage of the tenants for a " time whereof the 
 memory of man runnetl^ not to the contrary." ' In such cases, the 
 law wilb assume that there have been ancient assignments or 
 agreements to^ regulate them which have become lost by lapse 
 of time ;" or, if an original agreement is proved, that it might be 
 
 '17 Wend. 330. 44 Barb. 134. " 3 "Wend. 143, 148. 9 John. 136. 
 
 " 18 Barb. 400. '4 John. 414. 1 Cowen, 80, note a, 
 
 ' 41 Barb. 159. ' 4 John. 414. 
 
 *25Baib. 9. »35N. Y. 233. 
 
 ' 17 Wend. 330. '» 6 Mass. R. 96. 
 
ANIMALS ETWNING AT LARGE. 287 
 
 altered at some future time, if the line was found to be incorrect, 
 still the line established by prescription will govern.^ Twenty years 
 is sufficient to establish this prescription, and where it exists the fence 
 viewers have no jurisdiction under the statutes.^ This case may be 
 usefully referred to on many points since covered by the statutes of 
 1866, swpra. 
 
 § 533. By the Revised Statutes it was provided that the electors, 
 at town meeting in each town, may make " rules and regulations for 
 ascertaining the sufficiency of all fences in such town ; for deter- 
 mining the times and manner in which cattle, horses or sheep shall 
 he perm^itted to go at large bn highways, and for impounding ani- 
 mals."* It has been doubted whether the legislature has the power 
 to authorize a regulation to permit cattle to go at large and depasture 
 upon the highway where it runs over the land of another person 
 than their owner. But the decisions were favorable to its exercise 
 and sustained the statute.* 
 
 § 533. A recent statute, however, changes this, and forbids any 
 such going at large on our highways. It is found in the Laws of 
 1862, chapter 459, as amended by chapter 814 of the Laws of 1867, 
 and chapter 424 of those of 1869, which read as follows : (§ 1.) It 
 shall not be lawful for any cattle, horses, sheep, swine or goats to run 
 at large, or to be herded or pastured in any pubhe street, park, place 
 or highway in this state, and it shall be the duty of every overseer 
 of highways, within his district, and of every street commissioner in 
 any incorporated village, to seize and to take into his possession, and 
 keep, until disposed of according to law, any animal so found run- 
 ning at large, or being herded or pastured ; and any person suffering 
 or permitting any animal to so run at large, or be herded or pastured 
 in violation of this section, shall forfeit a penalty of five dollars for 
 every horae, swine or cattle, and one dollar for every sheep or goat 
 so found, to be recovered by civil action by any inhabitant of the 
 town in his own name or in the name of the overseer of the poor 
 of the town, or by the proceedings hereinafter provided. (§ 2.) It 
 shall be lawful for any person to seize and take into his custody, and 
 retain tiU disposed of by law, any animal which may be in any pub- 
 lic highway and opposite to land owned or occupied by him, contrary 
 to the provisions of the foregoing section, or of any animal which 
 
 1 30 Barb. 81. * 3 Wend. 143. 5 Denio, 255. 4 Corns, 
 
 a 25 N. T. R. 333. 349. 4 Barb. 56. 7 id. 297. 35 id. 9. 
 
 «1 B. S. 341, § 5, sub. 11 (Banks' 5th 
 ed.) p. 817, § 9. 
 
238 AJsriMALB EumniTG at laegb. 
 
 I 
 may be trespassing upon premises owned or occupied by bim. (§ 3.) 
 
 Whenever any such person or any officer shall seize and take into his 
 possession any animal under the authority of the preceding sections, 
 it shall be the duty of such person or officer to make immediate 
 complaint in writing, under oath, stating the facts to a justice of the 
 peace of the town in which such seizure occurred ; and such justice 
 shall thereupon have jurisdiction to hear and determine such matter, 
 and shaU thereupon proceed in the same manner as in civil actions, 
 except as specially changed in this act, and shall forthwith issue a 
 summons under his hand, stating the fact of such seizure and com- 
 plaint, and requiring the owner of such animal, or any party having 
 an interest in the same, to show cause before such justice, at a time 
 and place to be specified in Said summons, why said animal should 
 not be sold and the proceeds applied as directed by this act ; such 
 time shall not be less than ten nor more than twenty days from the 
 issuing of such summons. The said summons may be served by any 
 constable of the said town, or by any elector thereof authorized so to 
 do by the said justice, in writing thereon. Such service shall be 
 made by posting the same in at least six public and conspicuous 
 places in said town, and one of said places shall be the nearest dis- 
 trict school-house, unless the said seizure shall have been made within 
 the bounds of an incorporated village, having the schools in charge 
 of a board of education ; and in such case one of such notices shall 
 be posted in one of the buildings in which such schools are taught. 
 At the time and place appointed for the return of said summons, the. 
 complainant aforesaid may appear, and any party or person, owning 
 or having an interest in said animal, or his agent duly authorized, 
 shall be allowed by the said justice to appear in said proceeding ; 
 and on his filing with said justice an answer, under oath, subscribed 
 by him or his agent aforesaid, denying any or all the facts alleged in 
 said complaint, an issue shall be deemed joined in the said proceed- 
 ing, and the subsequent proceedings shall be as in civil aotions, so far 
 as they can be, unless otherwise provided in this act. If no one shall 
 appear to show cause, and the said summons shall be returned by a 
 constable duly served, or by proof showing that fact, if served by 
 any person other than a constable, or if the jury or the justice shall 
 find, after a trial, that no sufficient cause is shown why such sale 
 should not be made, as directed by this act, then the said justice 
 shall issue his warrant under his hand, directed to any constable of 
 the said town, commanding him to sell the said animal at public 
 auction for the best price he can obtain therefor, and make return 
 
DIVISION AUD OTHEE FEITOES. 289 
 
 thereof to the said justice, at a time and place therein specified not 
 less than ten nor more than twenty days thereafter. The said sale 
 shall be made on the like notice as on a constable's sale on civil pro- 
 cess, and the said constable shall make return as required by the 
 said warrant, and pay the proceeds of said sale to said justice. The 
 said justice shall thereupon adjudge the costs of said proceedings, 
 the same amounts being allowed as in civil actions ; and in addition, 
 he shall allow to the party or officer making such seizure, for every 
 horse or colt, one doUar ; for every cow, calf or other cattle, each 
 fifty cents ; and for every goat, sheep or swine, twenty-five, cents, 
 together with the actual damages sustained by such party by reason 
 of the trespass or breaking of such animal into his premises, and a 
 reasonable compensation to such person of ofiicer, to be estimated by 
 such justice, for the care and keeping of^ such animals from the time 
 of the seizure thereof to the sale; and the said justice shall be 
 allowed the sum of one dollar for each animal so sold, and the con- 
 stable the same fees as for service of a summons and execution in 
 civil actions ; and the penalty in the foregoing sections prescribed 
 shall be paid to the overseers of the poor, or the ofiicer or board 
 having the support of the poor ia charge. If, after paying the sums 
 aforesaid, there shall be any surplus of the proceeds of said sale, the 
 said justice shall pay the same to the owner or party establishing 
 before him, on the return of said summons, or at such other time as 
 he shall appoint, the right to the same. If no person shall claim 
 said surplus within one year after such seizure, the said justice shall 
 pay the same to the overseers of the poor of such town, or the officer 
 or board aforesaid, for the benefit of the poor thereof. If such owner 
 or party interested shall not appear and demand such surplus withia' 
 said year, he shall be forever precluded from recovering any part of 
 such moneys, and the receipt of the overseers of the poor of said 
 town, or officer or board aforesaid, given at any time after the expira- 
 tion of said year, shall be a full discharge to said justice for the same. 
 (§ 4.) Any owner of any animal which shall have been seized under 
 and pursuant to the foregoing provisions, may, at any time before 
 the justice aforesaid shall proceed to the hearing on the return of said 
 summons, demand, and shall be entitled to the possession of such ani- 
 mal upon the payment to said justice of the several sums herein- 
 before required to be paid to the said justice and constable, an4 to 
 the person or officer by whom the seizure aforesaid shall have been 
 made, and the penalty aforesaid, when such seizure is made by any 
 officer, together with a reasonable compensation to the person or 
 37 
 
290 DIVISIOIT AND OTHEE FENCES. 
 
 officer Inaking sncli seizure, for the care and keeping of such animal, 
 to be ascertained and fixed by such justice, and upon making to such 
 justice satisfactory proof of ownership ; and if such owner shall not 
 have appeared upon said return day, and shall excuse such non- 
 appearance to the satisfaction of said justice, and shall make such 
 demand at least three days before the time appointed for such sale, he 
 shall be entitled to the custody and possession of such animal upon 
 paying one-half of the several sums above statfed, together with the 
 whole amount of penalty, compensation and damages which the said 
 justice shall then adjust and award. (§ 5.) In case the animal so 
 seized under the foregoing provisions of this act shall have been so 
 running at large or trespassing, or being herded or pastured by the 
 willful act of any other person than the owner to effect that object, 
 such owner shall be entitled to the possession of such animal at any 
 time before the actual hearing shaU be commenced on the return of 
 said summons,' on making the demand therefor aind the proof required 
 in the next preceding section, and on paying to such person or oflScer 
 making such seizure the amount of compensation fixed by such justice 
 for the care and keeping of such animal, and without paying any 
 other charges ; and the pei'son committing such willful act shall be 
 liable to a penalty of twenty dollars, to be recovered in an action at 
 law, at the suit of the owner of such animal, or the person or officer 
 making such seizure. (§ 6.) This section only provides for appeals, 
 and is omitted. (§ 7.) In case any person making such seizure shall 
 fail on said hearing to show cause sufficient to obtain such sale, the 
 said justice shall render judgment against him for costs. And if the 
 jury or said justice shall find from the evidence that such seizure was 
 malicious and without probable cause, the juiy or the justice may 
 assess the amount of damages sustained by the owner by means of 
 such seizure, and judgment shall in such case be given for double the 
 amount assessed, with costs. Section Y of the said law of 1867, 
 further provides that " actions for any cause of action arising out of 
 any proceeding had or taken, or attempted to be had or taken under 
 the provisions of said act" of April 23, 1862, " can only be com- 
 menced within one year after the cause of action shall have acci'ued." 
 This statute is constitutional.^ 
 
 § 5'34. It is doubtful whether a town can, by regulation, interfere 
 with the interior regulation of one's farm, by compelling the owner 
 to keep his swine or other animals shut up in a close pen ; .and a 
 by-law that " all hogs shall be shut up" must be construed to mean 
 
 ■SSHow.Pr. R. 136. 
 
DAMAGES FOE INJUEIES THEOtTGH DEFECTIVE FENCES. 291 
 
 merely that they shall not go at large on the highway, and not to restram 
 their owners from permitting them to be at large on their own lands. 
 And if hogs at large on their owner's lands break through the defec- 
 tive partition fence. of his neighbor, and- which he is bonnd to main- 
 tain, no action will lie for the damage they commit notwithstanding 
 such a by-law.^ ' 
 
 § 535. Where cattle or other animals are not lawfully in the high- 
 way, the .owner is liable for the damage they do if they break through 
 an outer fence adjoining the highway or common, although the fence 
 be a defective one.^ Where there is no valid statute or regulation in 
 any state allowing it, cattle cannot be lawfully in the highway except 
 while using it for the mere purposes of passing upon it, and their 
 ownei' will be liable for any damage they occasion by passing from it 
 to the plaintiff's fields, whether they are defectively fenced or not. 
 He is bound to keep his cattle on his own premises, and is answer- 
 able when they come on his neighbor's, except it be through the 
 neighbor's defective division fence,' and which is presumed to have 
 been sufficient.* 
 
 In Michigan, adjacent land-owners are not obliged to maintain a 
 division fence, but each is responsible for his own cattle.^ 
 
 In Missouri, the owners of cattle are under no obligation to inclose 
 them ; and damages cannot be recovered for the trespasses of such 
 cattle, unless the fields trespassed upon were legally inclosed.^ 
 
 The common law doctrine making the owner of domestic animals 
 a trespasser, if he permits them to stray upon the uninclosed lands of 
 another, is not the law of Ohio.' Nor is it in Iowa, where, there- 
 fore, the owner of land must make a proper fence to keep out ani- 
 mals rimning at large, or he has no claim for damages done by them.^ 
 
 In Illinois, the common law rule, as above laid down, applies to 
 inside fences, but not as to those on the highway ; therefore, owners 
 of cattle have the right to permit them to run at large in the high- 
 way, and owners of land must have their groimds protected by a 
 sufficient fence before they can recover for cattle trespassing on them 
 from th6 highway. But if an owner removes a partition fence, and 
 his cattle enters on another's premises, he is liable.' 
 
 • 13 John. 433. ' 3 Mich. 163. 
 » 5 Wis. 37. '36 Mo. 441. 
 
 ' 7 Ind. 317. " See 17 Cal. 308. ' 4 Ohio, N. S. 474. 
 
 * R. S. supra, § 537, sub. 45. 4 Denio, ' 3 Iowa, 396. 
 
 101. 4 Barb. 56. Contra, 5 Iowa, 490. »5 Gilm. 130. 13 lU. 76. 30 id. 884. 
 5 How. Pr. B. 78. 43 id. 450. 45 id. 76. 
 
292 ' DEFECTIVE DITISIOII FENOES. 
 
 In Indiana, the common law prevails in the absence of any order 
 to the contrary made by the county board, which may be made nnder 
 sections 1 and 2 of chap. 4 of their Eevised Statutes of 1852.^ 
 
 § 536. A brief synopsis of the rules of the common law in connec- 
 tion with the existing statutory provisions will show the relative 
 duties and rights of land owners and persons having domestic 
 animals. At the common law the tenant of a close was not obliged 
 to fence against an adjoining one unless by force of prescription. 
 Each person was bound to keep his own cattle within his own close, 
 and he was answerable for all injury which they did if they escaped 
 from it and went upon his neighbor's.^ By the statute just given, 
 section 527, in certain cases each one is bound to make and maintain 
 half the division fence between his and his neighbor's lands unless he 
 chooses to let his land lie open. But until the fence has been 
 divided either by fence viewers, by prescription or by agreement, 
 neither party is obliged to make the partition fence, and the rights 
 of both parties remain as at' common law. In this case neither 
 party can avoid the payment of the damage which his cattle do to 
 his neighbor. Each must keep his cattle at home at his peril.' The 
 owner must fence them in ; the neighbor is not bound to fence them 
 out.* 
 
 § 53Y. Again, where the fence has been divided and made, it is 
 intended only to protect the owner from animals Icmfull/y in the 
 adjoining close. Where then the cattle of A. broke into the close of 
 B. and then passed on to the lands of C. through a defective fence 
 maintained by C. between his lands and those of B., and there com- 
 mitted an injury to the lands of C, A. is responsible, for his cattle 
 were not lawfully in the close of B. Had B.'s cattle passed through 
 the defective fence and done the mischief, they being lawfully in B.'s 
 close he would not have been liable.^ , 
 
 § 538. At common law when the owner of cattle was traveling 
 with them on the highway, and they escaped through an insufficient 
 fence into an adjoining close, and the owner at once pursued them 
 and brought them back he was not liable for the injury they may 
 have done.' This is still the rule. But the owner has no more 
 
 ' 27 Ind. 96. See also 14 id. 317. ' 6 Mass. 90. 16 id. 38. 3 H. Bl. 539. 
 
 "Vin-Ab. Fences A. Dyer, 372, pi. 10. 3 Wend. 143. 3 Hill, 38. 3 Kern. 43. 
 
 6 Mod. 314. 3B1. Com. 309. 19 John. "Fitzh. N. B. 398, n. 15 H. vn. 17. 3 
 
 385. 3 Hill, 38. 3 Kem. 43. Ed. iv. 8,49. 10 Ed, rv. 8. 5Denio,259. 
 
 '6 Mass. 100. 19 John. 385. 3 Hill, 38. Supra, § 516. Infra, § 541. 
 
 ♦14 Ind. 317. 3 Hill, 38. 5Denio,259. 
 
Al^IMALS GOING AT lAEGE ON HIGHWAYS. 293 
 
 right to turn them out to graze in the highway than he has to turn 
 them into his neighbor's field. The only right he has to the high- 
 way is to travel upon it, and if his animals are there for any other 
 purpose they cannot be said to be lawfully there. 
 
 § 539. The following summary of the law applicable to the subject 
 •is taken from the reporter's note to the case of Bush v. Brainard^ 
 decided prior to the enacting of the New York Kevised Statutes, and 
 the doctrine in relation to cattle going at l^rge must be considered 
 as subject to the provisions contained in them as interpreted in the 
 cases referred to. Every man is bound to keep such animals as are 
 the subject of absolute property upon his own lands under peril of 
 accounting for the damage which they may do to the property of 
 other persons, subject to the following exceptions : 
 
 1. He may drive or otherwise convey them along the highway 
 for the mere purpose of passage. In doing this if he exercise 
 ordinary care in keeping them along the way he will not be liable 
 for injury committed by them, although they escape into adjoining 
 lands, if he make fresh pursuit and use proper endeavors for their 
 return. 
 
 2. He is not accountable to the tenant of land adjoining his for 
 the escape of such animals as are commonly restrained by ordinary 
 fences, provided they escape through that part of the partition fence 
 which such tenant is bound either by assignment by fence viewers, 
 by prescription, or by agreement to maintain.^ But if in the latter 
 case they wander from the adjoining close to that of a third person, 
 although it be through the defective fence which such third person 
 is bound to repair, he is answerable.* But in this case he would have 
 a remedy over by action against his adjoining neighbor. 
 
 § 540. He who has the care, custody, or possession of the beasts 
 that do the damage is liable for the mischief they do ; as where one 
 depastures animals' for another, and they by his negligence do an 
 injury to the owner of land, or where he has the hogs of another in 
 his sty,, which commit a trespass.* 
 
 § 541. An involuntary trespass upon one's lands is not the subject 
 of an action ; ' as where one who is assaulted and in danger, runs 
 through the close of another instead of keeping the path ; * where 
 cattle in passing along a highway eat herbs or corn against the will 
 
 ' 1 Cowen, 78. 546, B. pi. 1. Bac. Ab. Trespass, G. 3. 
 
 ■^ See also 7 Barb. 397. 31 Penn. 585. Infra, § 643. 
 
 " Set! also 3 Hill, 88. ' Supra, §§ 516, 538. 
 
 ♦ Trials Per Pais, 201. 3 RoUe's Ab. ' 37 Hen. 6, 87, pL 36. 
 
294 
 
 FISHERIES. 
 
 of the owner ; ^ where a dog jumps into a field without the consent 
 of his master, or otherwise breaks another's close. But in the latter 
 case if the owner have notice that the dog is accustomed to do mis- 
 chief he is liable.' 
 
 § 542. Fisheries are included within the meaning of the t^nn land, 
 and violations of their rights are injuries to real property. Fisheries 
 are denominated free fisheries, several fisheries, and commons of 
 fishery. A free fishery is an exclusive right of fishing in certain 
 portions of navigable water either at particular tnnes or at all times. 
 In this class of fisheries the owner has a property in the fish before 
 they are caught.* A several fishery is a private exclusive right of 
 fishing in an aiin of the sea, river or other stream, accompanied with 
 the ownership of the soil. In this class the owner has no property 
 in the fish until he catches them.* Most of the rights of fishery 
 within this state are of this class. It exists wherever a stream con. 
 taining fish passes through the land of any person, and in such case 
 he may recover against any person who comes upon his land to fish, 
 for the injury to his fishery, but not for the fish caught, for the reason 
 that like other wild animals those are not the property of the owner 
 of the fishery until he catches them.' A common of fishery is where 
 all persons have a right to fish in a river or a navigable stream, which 
 flows and reflows and is an arm of the sea. 
 
 § 543. In navigable or tide waters the right to fish below high 
 water mark is common to all, except where an exclusive right to a 
 free or several fishery can be shown by grant or prescription. But 
 though all persons may fish, the adjoining proprietors have the 
 exclusive right to draw a seine or take fish on their own lands, aijid 
 if an island or rock in tide waters be private property, no one but the 
 owner can use it for the purposes of fishing.® 
 
 § 544. In rivers not navigable as tide waters, the owners of the 
 land upon which they fiow have the exclusive right of fishing each 
 upon his own bank, and such right is held subject to the public use 
 of the waters as a highway and to ' the free passage of fish, and in 
 subordination to the regulations to be prescribed by the legislature 
 for the general good.' 
 
 § 545. A private pond where the proprietor raises fish is like any 
 
 •EoUe'sAb.Seejpl. 1. ' 3 Bl. Com. 391, 394. 7 John. 16. See 
 
 " 1 Car. & Payne, 118, and in note (a). infra, § 545. 
 
 »3B1. Com. 39,40. 17 John. 195. « 8 Kent, 416, 417. 
 
 * 3 Kent, 409. Com. Dig. Prerogative, ' 3 Id. 408 to 419, 437 to 433. 
 D. 50. 
 
TRESPASS BY aUNTIHG, FISHOTG, &c. 295 
 
 other close his exclusive property, and the fish in it are his as well 
 before as after they are caught. 
 
 In addition to this common law right of property, the legislature 
 pf New York, by a statute passed in 1864 (p. 709 of the Laws of that 
 year, ch. 288), has allowed an action against any person who shall 
 take any fish from a private or artificial pond, for the value of the 
 fish so taken, and which does not seem to have been repealed by 
 ch. 898 of the Laws of 1867, qh. 785 of the Laws of 1868, or ch. 909 
 of the Laws of 1869. 
 
 § 546. Any entry upon the land or waters of another to take fish 
 from his fishery is wrongful, and the subject of an action for damages 
 to his real property.-' 
 
 This common law right of action has been recognized and regu- 
 lated in ISTew York, by ch. 909 of the Laws of 1869 (vol. 2, p. 2312), 
 which, in sections 13 and 14, provides that " any person trespassing 
 upon lands owned or occupied by another, for the purpose of shooting, 
 hunting or fisliing thereon, after public notice by such owner or 
 occupant as provided in the following section, shall be deemed guilty 
 of trespass, and shall be liable to such owner or occupant in exem- 
 plary damages for each offense, not exceeding twenty-five dollars, and 
 shall also be liable to the owner or occupant for the value of the game 
 killed or taken. (Section 14.) The notice referred to in the preceding 
 section shall be given by publishing an advertisement, particularly 
 describing such land and forbidding such trespass, in the official 
 papers of the county, or a paper published in the town where such 
 lands are situated, for the period of three weeks, and in the months 
 of April or May in each year, by sign-boards at least one foot square, 
 to be put up and maintained in not less than two conspicuous places 
 on the premises ; such notices to be signed by, or have appended 
 thereto the name of the owner or occupant." 
 
 It is doubtless the case that this statute does not do away with or 
 afiect the common la,w right of action, hut only affords a special 
 remedy, if its conditions are complied with. 
 
 [§ 546a.J Although not entirely in place here, we may now refer 
 to a series of statutes (several of which are referred to in the last 
 section) passed by the legislature of IS^ew York at various times, for 
 the preservation of wild aninaals, fish, oysters, &c., in this state. They 
 are found as follow : Laws of 1862, p. 874, ch. 474 ; of 1863, p. 800, 
 ch. 462 ; of 1864, p. 709, ch. 288 ; of 1866, p. 895, ch. 404 ; Id. 
 p. 1635, ch. 753; of 1867, p. 2240, ch. 898; of 1868, p. 1759, 
 
 '43 111. 447. 
 
"Jb FLOWING LANDS. 
 
 cli. 785 ; and of 1869, p. 2312, eh. 909. These laws are too long to 
 be given here ; j^^ith some local provisions not here referred to, but 
 found in other statutes, they form a very stringent code for the 
 preservation of the various kinds of wild, animals, birds and other 
 game, fish, oysters, &c., in the state, and affix penalties for their 
 violation, rules of evidence in cases of alleged violation, i&c. All, or 
 nearly all, of these provisions and causes of action, so far as they 
 relate to civil remedies, are cognizable in and apply to justices' 
 courts, and reference can easily be made to them as the cases arise. 
 
 § 547. The owner of lands over which streams pass where the tide 
 does not ebb and flow, and which have not been declared public high- 
 ways, have the exclusive right to use them, and may maintain actions 
 against any persons who pass over them without permission.^ 
 
 § 54:8. Although a river be declared a public highway this gives 
 the citizen no right at common law to tow on the banks thereof.' 
 
 § 549. Among the various injuries to real property which are the 
 subject of action in a justice's court, may be enumerated the damage 
 sustained by flowing it by a mill-dam ; the diversion from its natural 
 course of a stream of water running to the plaintiff's mill or across 
 his land ; the confining it in a pond and discharging it at irregular or 
 inconvenient times to t|ie annoyance of the proprietors below ;^ the 
 obstruction of one's private road or its unauthorized use.* 
 
 § 550. The rule in relation to the flowing of waters is that " every 
 one has the right to the flow «f water in his own land without 
 diminution or alteration ;" ^ " each proprietor has an equal right to 
 use the water which flows in the stream, and consequently no pro- 
 ■ prietor can, by use or otherwise, either diminish the quantity 
 which would otherwise descend to the proprietors below, or throw the 
 water back upon the proprietors above, even to improve his own 
 land." * " The true test of the principle and extent of the use is 
 whether it is to the injury of the other proprietors or not." ' " Mere 
 priority of appropriation of running water confers no exclusive 
 use."^ 
 
 § 551. "Within these principles it is held that where the water of a 
 
 •Co. Lit. 4 1). Yelv. 143. 6 Cowen, " 1 Sim. & Stu. 203. 10 Baib. 518. 16 
 
 518, and innote. Ohio N. S. 334 43 El. 387. 36 Ind. 354 
 
 ^ 3 Term K. 253. Infra, |§ 554, &c. 
 
 ' 3 Kent, 439, 440. SO N. T. 519. ' 4 Mason, 400, 401. 
 
 *8East, 4 14Jolin. 383. «15 John. 213. 4 Mason, 401. Cowen 
 
 » 6 East, 214 -10 Wend. 360. 23N.Y. and Hill's notes, 377. Infra, § 654 , 
 43. 6 Ind. 334 
 
IMPLIED DAMAGES. 297 
 
 river is divided by an island so that only one-fourth of the stream 
 descends on one side of the island, the owner of the shore where the 
 largest quantity of water flows is entitled to the use of all the water 
 flowing there, and the owner of the other shore may not place 
 obstructions at the head of the island to cause one-half of the stream 
 to descend on his side of the river. Nor can the latter require the 
 other, in the use of the water, to keep up a tight and secure dam. 
 If either can avail himself of the natural advantages afforded by his 
 site with no dam or an imperfect one, he may do so.' 
 
 § 552. In Connecticut, where the defendant raised his dam below 
 on the same stream with the plaintiff's mill, which at first did not 
 affect the plaintiff's water wheel, but afterward when he had occasion 
 to lower it, clogged it with back water, it was held that an action 
 lay.'^ In England the occupier of a mill maintained an action for 
 forcing back water to his injury, although he had within a few years 
 previous erected a wheel requiring less water than he had previously 
 used.' 
 
 [§ 552a.J A riparian proprietor, who owns to the center of the 
 stream, may maintain an action for the diversion of water against the 
 one owning the other half, even though the plaintiff makes no 
 valuable use of his share of the water.* The only exception is where 
 both parties draw water from the same dam, in which case, in the 
 absence of any agreement or prescription, each has the right to con- 
 tinue to use the water whatever the effect may be on the other .^ 
 
 § 553. In all cases where an unlawful or wrongful act is committed 
 upon the real property of another, the law implies an injury, and in 
 an action for it, nominal damages must be given.* The flowing of 
 land by means of another's unauthorized dam though in the least 
 possible degree, is within this rule.' But in a case where the plain- 
 tiff complained that the defendant erected a dam above him, on a 
 stream which passed through his land, and thus caused the water to 
 run in a different channel and with greater violence than before, and 
 thus injured his banks and premises, and the jury found the plain- 
 tiff's banks were not injured by the dam, but added that the 
 defendant had no right to stop the water in the summer time, it 
 was held that an entry of a verdict for the defendant ordered by the 
 
 ' 10 Wend. 260. Cowen and HiU's Notes, ' 30 N. Y. 519. 
 
 g^^ " 6 Wels. H. & G. 353. 6 Paige, 443, 
 
 »9 Conn. 162. 42 Penn. 58. 
 
 ' 1 Bam. & Aid. 358. ' 1 Bawle, 27. 
 * 34 Barb. 485. 
 
 as 
 
298 INJUEJES TO WATEE OOUESES. 
 
 judge on the finding, was right ; that flowing water i&publici jv/ris, 
 and an individual can only acquire a right to it by appropriating so 
 much of it as he, requires for a beneficial purpose ; and that therefore 
 the plaintiff could not recover dapiages for the mere erection of a 
 dam, but was bound to allege and prove that he had sustained an 
 injury from the want of a suflScient quantity of water.^ If a pej-son 
 buys premises already overflowed by water, for which injury no 
 compensation in gross has ever been made, the purchaser may 
 recover for the damages accruing 'subsequent to the sale to him.^ 
 
 §554:. One may not divert the water from running in its natural 
 course to another's mill ;. and in order for a plaintiff to maintain an 
 action for thus violating his rights, it is sufficient to show his pos- 
 session of the milP And the action must be brought by the one in 
 possession, except for such an injury as affects the reversion.* By . 
 the prior erection of a mill upon a stream of water, one does not gain 
 an exclusive right to use tlie water, against another who erects a dam 
 above him, by which the water is in part diverted, and he' in some 
 measure injured.' In California, however, a different rule prevails ; 
 a prior occupation there, not for speculation, but for some useful 
 purpose, as for mining purposes, or for grist or saw-mills, giving a 
 prior right,* and one that may be transferred.' Each owner has a 
 right to the reasonable use of the water flowing over his land, yet he 
 has no right to use the water as he pleases, or to stop the natural 
 flow of the stream so as to destroy or render useless the mills below 
 him, and if he either detain the water unreasonably or let it out of 
 his pond in such unusual quantities as to prevent the owners below 
 from using it, and to deprive them of a reasonable participation in 
 the beneflts of the stream, he is liable to them for the injury they 
 sustain thereby.^ But a party over whose land a stream runs may 
 use and detain the water for a reasonable time and in a reasonable 
 manner, for culinary, family and agricultural purposes, or for the 
 purpose of carrying on mills or other manufacturing establishments ; 
 but he must not detain the water .unreasonably, nor let it off in 
 unusual quantities to the annoyance of his neighbor ; and while he 
 may not, without sufficient cause, materially reduce its quantity or 
 quality (he may use the whole for ordinary purposes, and the grati- 
 
 M Dowl. & Kyi. 583. See" also 6 Ind. "15 John. 313. Supra, § 550. 
 334. '6 Cal. 105. 8 id. 337, 338. 13 id. 
 
 "15. Wig. 101. 330. 
 
 « 2 Har. & McHen. 473. ' 13 Cal. 330. 
 
 * 30 Barb. 311. « 17 John. 306. Supra, g 550. 
 
ACTIONS FOE MTJISANCES. 299 
 
 fication of natural wants, sed quere, and) may, as some cases hold, 
 so adulterate it as is necessary or unavoidable in Ms business, 
 provided it is not polluted or poisoned witb unwholesome sub- 
 stances to the injury of the owner below.^ And if he, by a ditch, 
 turns extra water into the stream, he may take out the same 
 amount, but not so as to diminish the quantity others would be 
 entitled to.^ He may divert the course of the stream over his own 
 land, but must return it to its natural channel when it leaves it.* 
 Having the right to erect a dam, one is not responsible if, in conse- 
 quence of the erection, the water percolates through and below the 
 natural soil, to the injury of his neighbor, there being no unsMll- 
 fulness, negligence or malice.* The rules, as above, in regard to 
 running water do not apply to the running off of surface water 
 caused by rain or snow,* and a man may fill up the wet and marshy 
 places on his own soil for its amelioration and his ovm advantage, 
 though his neighbor's land is so situated as to be incommoded by his 
 doing it.^ A contiaued use of the water in a particular manner for 
 twenty years will, however, afford the presumption of a grant by the 
 owners affected by it above and below, and bar their claims.' No 
 shorter time will have that effect.* 
 
 § 555. If, however, the pond created by a dam be a nuisance, no 
 length of time will prevent the pubhc from proceeding to abate it, 
 nor bar an action by an individual for a specific and peculiar injury 
 sustained in consequence of it.* An act authorizing one to build a 
 dam on his own land upon a creek or river which is a public high- 
 way, merely protects him from indictment for a nuisance. He is 
 nevertheless liable to an action if he thereby flows his neighbor's 
 land, even if the act provide a summary mode of appraising and pay- 
 ing damages therefor.'" 
 
 § 556. A nuisance, in order to furnish a right of action, must be a 
 private one ; or if a public one, the plaintiff must have received some 
 special injury in consequence of it.'' The keeping of a large quantity 
 of gunpowder in a wooden building in an exposed place in a city, is 
 a public nuisance, and no action lies therefor by an individual ; but 
 
 '3 Kent, 440. 13 Wend. 332. 10 Barb. '39 N. T. 467. 9 Cusli. 171. 11 id. 
 
 518. 32 id. 297, 312. 33 id. 276. 24 193. See 1 Beasly, 380. 
 
 Penn. 398. 29 Ala. 137. 8 Cal. 327. Id. «29N. Y. 467. 
 
 336. 1 C. B. (N. S.) 590. 6 Ohio N. S. '3 Paige, 605. 6 id. 441. 
 
 188. »31]Sr. T. 241. 
 
 \ 11 Cal. 143. 15 id. 35. " 9 "Wend. 316. 3 Paige, 577. 6 id. 435. 
 
 » 6 Ind. 324. " 5 Cowen, 165. Infra, § 556. 
 
 * 33 Barb. 268. "Ante, §497. 9 Md. 160. 
 
300 EIGHTS IN SPEINGS OF WATER. 
 
 if tlie building takes fire and an explosion of the gunpowder takes 
 place, anyone who is thereby injured may maintain his action against 
 the owner.^ So such an obstruction of a highway or a navigable 
 stream as annoys the public, or hinders or obstructs navigation, is a 
 public nuisance ; '^ but if the plaintiff fall over the obstruction in the 
 road and injure himself or his property, or if he is hindered in pass- 
 ing, he may bring his action for the damages he has sustained, and it 
 is enough that he sustain some specific damage, although it be trifling 
 in amount.* Gas works are a private nuisance whenever they create 
 a special injury.* What amount of annoyance or inconvenience will 
 constitute a nuisance, being a question dependent on varying circum- 
 stances, cannot be precisely defined.' Whatever is legally authorized 
 by the legislature cannot be a public nuisance.^ 
 
 § 557. Any one may abate a public nuisance, whatever length of 
 time it may have existed,' for no length of time will bar a prosecu- 
 tion for it, and the remedy by abatement is in all respects concurrent 
 with that by indictment.* , Where, in a town, a house for poor people 
 to inhabit was divided into so many apartments as to render it 
 dangerous in a time of sickness and pestilence, it was held a public 
 nuisance which might be lawfully torn down by any man.' The 
 statute authorizing commissioners of highways to order the removal 
 of fences which encroach upon highways does not abrogate the right 
 of any individual to abate them,^" and the act of abating any nuisancp 
 does not bar an action by the person injured for the specific damage 
 he has sustained.''^ 
 
 § 558. Where a spring of water rises upon the land of one owner 
 and flows across the land of another, the former has no right to 
 divert it from its natural channel, although its waters are not more 
 than sufiicient for his domestic use, for his cattle and for irrigation.^^ 
 Nor has he a right to detain it by a dam so as to affect the regularity 
 of the supply to his neighbor below him upon the stream, although 
 he wastes none of the water by the dam.^' He may, however, be 
 
 > 6 Hill, 292. '3 Paige, 213. 7 Hill, 575. 18 Ark. 252. 
 
 '' 46 Barb. 561. 1 Stock. N. J. 754. '4 » 7 Hm, 575 ; but see 46 Bai-b. 561. 37 
 
 Wis. 454. id. 801. 
 
 »4Maule & Selw. 101. 7 Cowen, 609, » 15 "Wend. 262. Id. 397. 18 id. 169. 
 611. "> 14 "Wend. 131. Id. 250; but see 37 
 
 * 22 Barb. 297. - Barb. 301. 46 id. 561. 
 
 » 12 Ohio, N. S. 892. " 7 Cowen, 609. 37 Barb. 301 ; but see 
 
 ' 28 N. Y. 396. 9 Barb. 350. 10 id. 26. 46 Barb. 561. 
 18 id. 222. 2 Duer, 618. 1 McAll. C. C. " 12 "Wend. 330. 1 Hui-lst. & N. 627. 
 (Cal.)212. 4 "Wis. 454. " 3 Kent, 440. Supra, §§ 550, 554. 
 
EIGHTS TO EAISE 'WATEE. 301 
 
 permitted to do this, or to make any other use of it, by a grant or 
 license, and in this case a parol license is good, if he avails himself 
 of it before it is revoked.^ The license may be presumed frdm an 
 exclusive adverse enjoyment for twenty years, whatever may be the 
 injury which it causes others by corrupting, impending, crossing, 
 diverting or dammiag the water, unless the use amounts to a public 
 nuisance.* 
 
 [§ 558«.] The rules relative to running streams do not apply to 
 the case of waters running under the soil.' A person, therefore, 
 may ditch and drain his own soil, or sink a shaft, or open and work 
 a quarry, or otherwise conduct his agricultural business or other law- 
 ful operations tlierein, without rendering himself liable, although in 
 so doing, he draws away the water and leaves a well dry, or inter- 
 cepts one of the underground sources of a spring on another's land, 
 injuring or destroying, the same.* It is held, in Pennsylvania, that 
 the rule is otherwise in the case of a well defined and constant stream 
 flowing through a subterranean passage.^ The decisions in that state 
 also hold that a party who negligently or maliciously interferes with 
 underground waters is liable.* If one, by raising water on his own 
 land, causes subterranean springs to set back and stand on the land 
 of another, the latter cannot recover therefor.'' 
 
 § 559. Where one has raised water to a given height for twenty 
 years, although by the means it flows back upon his neighbor's land, 
 a grant wiU be presumed of the privilege of using it at that height.' 
 "Within this rule, if, after flowing another's land for ten years by a 
 dam of a certain height, the owner of the dam increases the height 
 of his dam and flows more land than he at first did, after twenty 
 years from the commencement of the first flowing, he will have 
 acquired a right to flow to the extent he did originally, but will be 
 answerable for all damages occasioned by the in'crease of the flow- 
 ing.' So if he repair his dam so as to raise the water higher, an 
 action lies by him whose land is flowed, or who is otherwise injured, 
 although the dam itself remain at its ancient height. The question 
 is determined by the height of the water and not of the dam.'" But 
 
 ' Cowen & Hill's Notes, p. 380. « 35 Penn. 528, 536. 45 id. 514. See 
 
 » Cowen & Hill's Notes, 380 to 384. also 13 Ohio N. S. 394, where a doubt is 
 
 » 39 N. T. 466. 37 Conn. 84. expressed whether it is not also the rule 
 
 * 39 N. T. 466. 31 Barb. 330. 83 id. in that state. . ' 
 
 376. 35 Penn. 538. 45 id. 514. 14 Ind. ' 33 Vt. 734. 
 
 113. 38Vt. 49. 13 Ohio N. S. 394. « 7 Cowen, 366. 
 
 '39 Penn. 59. 35 id. 538 ; but see 45 ' 10 Wend. 167. 
 
 id. 514, and 6 Paige, 435. " 7 Cowen, 366. 
 
302 WHAT IS PERSONAL PEOPEETT. 
 
 if he has used slush boards, he aiiay replace them by a permanent 
 addition to the dam which does not increase the -.general leyel of the 
 water, although the effect may be to keep the water more constantly 
 at that level, because the dam is tighter.^ 
 
 § 560. The owner of a dam is answerable for any damage which 
 may be occasioned by not having built it securely. He is bound to 
 use due diligence in so constructing it as to enable it to resist, not 
 only ordinary floods, but such great freshets as the stream is occa- 
 sionally liable to. It is no answer that it would resist ordinary 
 floods.^ Where, however, it is built upon a proper model and sub- 
 stantially, and is carried away without the owner's negligence, he is 
 not liable for injuries to his neighbor below consequent upon its 
 being carried away.' 
 
 § 561. One is not liable for building on his' own land whereby his 
 neighbor's lights are obstructed. That it was done from bad motives 
 makes no difference in the rule.* The fact that his neighbor has had 
 windows in his house built upon the boundary line for more than 
 twenty years is not presumptive evidence of a grant of the right. 
 Such presumption can be made only where the exercise of the privi- 
 lege without a grant would be a trespass.^ In Illinois, one may 
 acquire a right to lights, by prescription, and then they cannot be 
 obstructed.^ Also in Louisiana.'' 
 
 § 562. Any man may lawfully enter upon the lands of another in 
 pursuit of ravenous beasts, as bears, wolves, foxes, badgers and the 
 like, upon principles of public benefit. He may not, however, even 
 for this purpose, break the ground and dig for them, and if he 
 does he is liable for the damage he causes.^ The rule, however, 
 does not extend to the hunting of hares, deer or other animals not 
 ravenous. 
 
 § 563. III. Or ACTIONS foe taxing, detaining oe injdeing pee- 
 soNAL PEOPEETT. The term 'personal property, as used in the ]S"ew 
 York Code of Procedure (section 463), includes money, goods, chat- 
 tels, things in action and evidences of debt, and, with the exception 
 of real estate, it includes everything in which one can have a valua- 
 'ble interest. One may have this interest in any domestic animal, as 
 a dog or a cat, or in animals naturally wild which have been tamed, 
 
 ' 39 N. Y. 346. 89 Barb. 600. ° 19 Wend. 309. 
 
 "SHUl.SSl. 3Denio,433. » 16 111. 317. 
 
 » 8 Cowen, 175. S. P. 15 La. An. 448. ' 15 La. An. 316. 
 
 * 19 Wend. 809. 23 Barb. 444. " Cro. Jac. 331. 1 Term E. 834. 
 
GENERAL AND, SPECIAL PEOPEETT THEEEIif, 303 
 
 as wild geese, hares, deer in a park, rabbits in an inelosed warren, 
 doves in a dove house, pheasants or partridges in a mew, hawks that 
 are fed and commanded by him, and fish in a private pond or trunk.^ 
 So, also, in oysters that are in a distinctly marked out bed.^ In the 
 case of animals naturally wild, which are so tamed or secured, the 
 owner has a quoMfied right of property. They continue his until they 
 regain their natural liberty, but no longer. They do not, however, 
 regain this liberty merely by being let loose, becctusemany of them go 
 and return at pleasure, and as long as they do so and do not deviate 
 from their usual time of returning, the private ownership continues.* 
 "Where wild geese had been tamed, the fact that they had twice 
 strayed away was held no excuse for one who took them from their 
 owner. The question in such a case is, whether the animal has so 
 regained his liberty as to lose all disposition to return to its owner.* 
 Bees, when hived, or when still in sight, if they have flown away, 
 are of this description of qualified property,^ as are also the young 
 of wild animals found upon a man's land, before they are able to 
 escape.^ In order to acquire a property in a wild animal by hunting 
 him, he must be actually taken, or reduced by wounds, traps or nets, 
 to such a situation that he cannot escape. Merely being on the point 
 of taking him, although one have chased him with his- hounds all day, 
 will give him no right to claim him against a person who should 
 then step in and km hun.' Merely marking the tree in which bees 
 are found does not reclaim them, nor vest the property in the finder ;^ 
 nor does the wounding of a deer by A, who follows the track till 
 night, and resumes the chase in the morning, when the deer, after 
 being chased six miles by A's dog, is killed by B, give A any pro- 
 perty in the animal.^ 
 
 § 564. "Where personal property belongs exclusively to any person 
 he is said to have a general property in it, and is then called its owner. 
 To this title possession is always presumed to attach. Where one 
 holds goods as a bailee, or has any temporary interest therein, either 
 in his own right and for his own use, or by authority of law for legal 
 purposes, he is said to have a speoial ^property in them." Within this 
 
 '2B1. Com. 391, 3, 4 1 Park. Cr. 593. ' 3 Bl. Com. 893. 7 John. 16, 1 Cowen, 
 
 4 id. 886. 17 Barb. 565. See 1 Minn. 393. 343. 15 "Wend. 550. 
 
 Ante, § 545. " 3 Bl. Com. 394. 
 
 '^ 14 Wend. 43. 4 Barb. 593. 34 id. 586. ' 3 Caines, 175. 
 
 Contra, 11 id. 348. ' "T JohnAQ. 1 Cowen, 243. 
 
 = 3 Bl. Com. 391, 3, 3. ' 30 John. 75. 
 
 * 10 John. 103. " 1 Cames, 14. 13 John. 403. 7 Cowen, 
 
 394. 
 
304 INTEEFEEENCE WITH PEESONAL PEOPEETT. 
 
 class are all persons who have hired personal property for a time, or 
 who are entitled to its temporary possession, and persons having a ' 
 lien upon it. "Where the owner of property in the acutual possession 
 of another, has the right to reclaim it immediately, he has the con- 
 structive possession ; as where A in Tork sells or gives to B a 
 chattel which is in London, B has a right of action against any one 
 who injures it, for which he may maintain any appropriate action.''^ 
 
 § 566. An action for the wrongful taking or detention of personal 
 property hes, although there be no wrongful intention ; as if a sheriff 
 or constable, by mistake, take the goods of a wrong person in execu- 
 tion, or levy upon goods by virtue of an execution after its return 
 day ; and if this be done by direction of the plaintiff and his attor- 
 ney, they are all equally liable.' So if pne has purchased at a 
 sheriff's sale, property of another person than the defendant in the 
 execution, upon which he had by mistake levied, he would be liable 
 for the property, if upon request from the owner he should refuse to 
 deliver it to him, though he would not be for simply receiving it 
 from the sheriff upon the sale.' It is sufficient if the act be done 
 without justifiable cause or purpose, though accidentally or by 
 mistake.* 
 
 § 566. Any one who unlawfully intermeddles with another's goods, 
 although there be no manual interference with them, as by exercising 
 an authority over them in defiance or exclusion of the owner, is liable 
 for the damages he sustains in consequence of such acts.^ Accord- 
 ingly, a constable, who having an execution against G. levied upon 
 goods in his possessip^i belonging to L, made an inventory of them, 
 and took security for their delivery, was held liable f and in another 
 case, a constable, who required a receiptor with whom he left the pro- 
 perty, was held liable for his wrongful levy.'' In a more recent case, 
 where the constable went to the place where the property was, 
 informed the persons in whose possession it was that he had levied 
 upon it, and requested them to keep it until he called for it, an action 
 for the possession of the property, brought against him, was main- 
 tained,^ the court holding that a naked levy without any manual inter- 
 ference with, and without any exercise of ownership or authority over 
 
 ' 8 Pick. 333. * 6 Wis. 319. 
 
 " Chitty's PI. 139. 3 Lev. 37. 7 Cowen, =6 Wis. 319. 
 
 735. 10 Wepd. 349.- See also 41 Penn. « 7 Cowen, 735. 
 
 291. ' 8 Wend. 610. 
 
 » 3 RoUe's Ab. 556, pi. 50. Bro. Ab. » 10 Wend. 349. 15 id. 631. 
 Trespass, pi. 48. 6 John. 44. 
 
ACTIONS BT GENEEAL OB QUALIFIED 0-WNEES. 305 
 
 it, excepting what miglit be inferred from the mere act of levying, 
 was snificient to justify an action against either the officer or the party 
 directing him, where that levy Was made without authority.^ 
 
 § 567. It will not protect an officer or the person who directs him, 
 if he simply, and in terms, levies on the right and title of the defend- 
 ant in the execution to the property levied on, or if he only sells such 
 right and title. The mere act of levying is wrongful, and was, under 
 the ancient system of pleading, a trespass. It is an interference with 
 the property of another, for which the law affords redress ; for if 
 one's property could with impunity be seized upon to satisfy the debt 
 of another, under the pretense that the right and title of that other 
 person was alone intended to be sold, there would be no safety for it. 
 All that is ever sold upon an execution, is the right and title of the 
 defendant to the goods ; and unless he have some right or title which 
 is the proper subject of seizure on execution, the act of levying is 
 wrongful. 
 
 § 568. Before a party can recover for an injury to property, he 
 must show that he is either the absolute or qualified owner of it.' A 
 sheriff or constable who has levied goods upon an execution, may 
 maintain an action against any vn-ong doer who takes, detains or 
 injures them, and proof of the execution and levy is sufficient to sus- 
 tain his action, without showing the judgment.^ A purchaser must, 
 however, show the judgment, execution and sale, in order to main- 
 tain an action against a third person, unless he has reduced the pro- 
 perty to actual possession before the wrongful act complained of.* If, , 
 however, he have purchased in good faith upon a sale upon execu- 
 tion, he does not lose his title to the property, even if the judgment 
 be reversed.^ In an action brought by a defendant against an officer 
 for levying upon his property, it is sufficient for the officer to show 
 an execution in his hands regular on its face.' If the action is against 
 the plaintiff in the execution for directing a levy and sale, he must 
 show both a valid judgment and execution.'' If by the plaintiff in 
 the execution against the officer for moneys collected, it is not neces- 
 sary to produce the judgment.^ If the officer attempts to overthrow 
 a sale made by a debtor, on the ground of fraud, he must show a 
 
 '4E. D.Smith, 418. »13 Jolin. 395. 5 "Wend. 170. Bid. 
 
 " 27 111. 41. 867. 13 id. 496. 3 Denio, 86. 3 Corns. 
 
 ' 6 John. 195. 473. 
 * 7 John. 535. 13 id. 313, 315. Infra, ' 3 Hilton, 319. 
 
 I 574. " » 13 Wend. 85, 40. 
 ' 8 Co. 96, b. 7 John. 535, 6. 
 39 
 
306 TEOVEE. 
 
 judgment ; or, in case of an attacliment,-tliat it was regularly issued.' 
 In a case where proof of a judgment is necessary, but it is not given, 
 and no objection is made, the same is waived, and the point cannot 
 be raised on appeal.^ If the officer brings suit against one who is not 
 a wrong doer, he must prove the judgment as well as the execution,' 
 and he must do the same to justify the seizure of propei-ty in the 
 hands of a stranger.* 
 
 § 569. The action of trover, prior to the adoption of the Code of 
 Procedure, was the usual one to recover the value of property which 
 had been unlawfully appropriated by a defendant to his own use.' It 
 was in form an action upon the case, for the conversion of property of 
 the plaintiff which had casually come into the defendant's possession 
 iy finding. The real grievance complained of, however, was the 
 conversion, and as it was iii some respects a more convenient action 
 to maintain than trespass for the actual wrongful taking of the prop- 
 erty, it was commonly resorted to in all cases where the defendant 
 wrongfully converted the property, whatever might have been the 
 manner in which he obtained its possession. Any person having 
 either the general or special property in the thing converted might 
 bring the action. Thus every one who was entitled to the possession 
 of goods or chattels as against other persons than their owner, as the 
 finder of lost property, carriers, factors, consignees, pawnees, trustees, 
 agisters of cattle, persons who have borrowed horses to use, and indeed 
 every bailee who was not the mere-servant of the owner, might bring 
 the action against any one but the owner.^ And in general where 
 goods bailed were converted by a stranger, either the bailor or bailee 
 might bring the action, and the one first bringing it determined the 
 right of the other, and recovered the whole value of the goods.' Eut 
 where the goods were bailed to a bailee for a certain time which was 
 unexpired, the bailor, not being then entitled to the possession, could 
 not bring the action for that reason, as it was necessary in the action 
 for the plaintiff to have the right of possession. The bailee then 
 could alone bring it.' What effect the provision of the Code of Pro- 
 cedure requiring all actions to be '■^ j)rosecuted'in the name of the real 
 
 ' 5 Hill, 194. • 13 "Wend. 63. 2 Kern. 343. 6 Barb. 
 
 '^ 33 Barb. 656. . 362. 16 id. 595. 85 id. 298. 38 id. 574. 
 
 'SDenio, 648. 1 Hill, 118. 33 BarU 40 id. 388. 48 id. 839. 1 E. D. Smith, 
 
 636. . 893. 
 
 13 Cal. 483. See as to tliis whole sec- ' 7 Cowen, 838. 
 
 tion, infra, § 573. » 8 John. 483. 15 Wend. 474. 9 Cowen, 
 
 •BacAb. Trover, A. 15 Petersd. 190, n. 53. 
 
BY WHOM TEOVEE MAT BE BEOITGHT. 307 
 
 pwrty m interest" may have upon the right of bailees to prose- 
 cute tor the conversion of property of their bailors, has not 
 hitherto been judicially determined.^ Yarious cases of the kind have 
 been before our courts, but in none of them has the question been 
 raised. It is assumed in all of them that the Code has not changed 
 the common law rule in this respect.* In practice it will generally 
 be as convenient to bring the action in the name of the owner as of a 
 consignee or other naked bailee. "Where brought in the name of a 
 consignee, and an unqualified assignment is shown, the legal presump- 
 tion is that he is the owner until the contrary be shown.' A mere 
 executory contract for bailment does not give to the person named as 
 bailee any right to the possession of the property.* 
 
 § 570. -Possession of personal property is prima facie evidence of 
 title, and is sufficient to warrant a recovery for taking or detaining it 
 against all persons except the owner or those who have some right or 
 interest derived from him.' Thus the finder of a chattel has a special 
 property in it, which is good against every person but the owner or 
 his bailee.* But the finder of a chose in action has no special prop- 
 erty in it ; accordingly, where M. found a lottery ticket and gave it 
 to "W". to advertise for the owner, but none appeared, and it finally 
 drew a prize which "W. received, it was held that M. could not recover 
 the money received upon it from him.' Though possession is suffi- 
 cient evidence of title to authoi-ize one to bring a suit, as just stated, 
 it is not such evidence of ownership or authority to sell, that third 
 persons have a right, as against the true owner, to rely thereon.^ 
 
 § 571. Where one who had only a special property brought his 
 action of trover against another who converted it, it was held that 
 the defendant might, by showing the ownership in a third person, and 
 that through him he held some claim to the property, and that the 
 defendant had no special property as against the owner, mitigate the 
 damages or defeat the action entirely. But that it was not enough to 
 show property in a third person, without also showing some right in 
 the defendant derived from him.' 
 
 § 572. A constable, or sheriff has a special property in goods upon 
 which he has levied, and can maintain an action for them against any 
 
 1 Code of Procedure, § 111. 33 N. T. 581. 31 Barb. 333. 1 Wis. 386. 
 
 ' 16 Barb. 595, and other cases, supra, 3 id. 631. 30 111. 37. 38 id. 396. 
 jiote 6. " 85 Barb. 398.* 
 
 ' 15 Wend. 474. ' 9 Cowen, 670. S. 0. 5 Wend. 404. 
 
 •4 Wis. 373. ' ' 39 N. T. 441, 448. 50 Barb. 143. 
 
 " 11 Wend. 54. 3 Seld. 309. 6 id. 570. ' 11 Wend. 54. 16 id 5G3. 4 Duer, 431, 
 
308 
 
 ACTIOSTS BT OFFICEIES. 
 
 person who, without right, takes them from him, or from any one 
 with whom he has deposited them for safe keeping, and his right of 
 property is in no way affected by the eircnmstance that the Itevy is 
 excessive.'- In such a case the officer is the only one who can bring 
 the action. The plaintiff in the execution cannot do it,^ nor the 
 deputy, in case of a sheriff; the sheriff himself must sue.* A con- 
 stable may sue the sheriff for making a levy subsequent to his own, 
 and selling thereon, but not selling subject to the levy of the constable.* 
 If the action be brought by the officer against-the defendant in the exe- 
 cution for taking the goods away, or if, on the contrary, the defendant 
 in the execution sue the officer for levying on the goods, the execu- 
 tion, if good upon its face, is sufficient evidence of his right without 
 showing tlie judgment upon which it was issued.® It is also suffi- 
 cient in an action by an officer against a mere stranger, without pre^ 
 tense of title, who intermeddles with the goods,* or a purchaser at 
 the sale for the price bid for them.' It is otherwise, however, where 
 a stranger sues the officer and shows a title in himself prior to the 
 levy ; for then the officer can only defend himself by showing the 
 stranger's title void in respect to creditors, and to do this must show 
 the judgment.^ 
 
 § 573. An officer's right against an officious stranger depends upon 
 his special property. His process and levy show this jprima facie. 
 But where the stranger, showing a title, brings the action, he can 
 show that the officer's process was void as having been issued upon a 
 judgment obtained without jurisdiction, in which case the officer has 
 no special property and is not liable over- And where an officer 
 sues to recover property levied on, and it appears that the plaintiff in 
 the execution is the real party in the action, the officer, being a mere 
 nominal party, must show a valid judgment.' 
 
 § 5T4:. The title of a purchaser of goods upon an execution, 
 depends upon the validity of the judgment as well as the execution. 
 Where, therefore, he either brings his action against the former owner, 
 or any one in whose possession the property purchased is, he must 
 show the judgment, execution and sale. He must also do this in 
 defending his title against the former owner.'"' 
 
 ' 1 Cowejl, 323. 3 HaU, 435. 3 HUl, « 6 Jolin. 195. 8 Wend. 445. 
 
 315. 4Kemaii,370. 31111.130. ' 5 Watts, 515. 
 
 = 39 Barb. 306. lDemo,335. » 16 Wend. 614, 516. 3 Corns. 477. See 
 
 ' 35 Barb. 630. as to this section, supra, § 568. 
 
 no Barb. 413. "16 Wend. 563. 6 Minn. 413. 
 
 » 13 Wend. 75, and cases cited. Cowen " Ante, | 568. Co-n-en & Hill's N. 1078, 
 
 & Hill's Notes, 1078. 9. 16 Barb. 46. 13 Wend. 75. 
 
WHO IS THE OWNEE OP PEESONAL PEOPEETY. 309 
 
 § 575. It is quite commoii for a slieriff or constable, after a levy, to 
 deliver the property levied upon to a receiptor , on receiving his cove- 
 nant or agreement to return it when called for, or upon the day of 
 sale. Such a disposition thereof does not change the officer's rights 
 in it. The receiptor gains neither a general nor special property as 
 against him. He is his mere servant or agent.'^ 
 
 § 5T6. As an action for taking, detaining, or injuring pergonal prop- 
 erty, must be brought by the party sustaining the damage arising 
 from the act complained of, it will often be necessary to determine the 
 ownership of the property in question, upon the rules governing the 
 transmission of the title in contracts of sale. The true inquiry, in 
 all such cases is, whether the title has so passed that the property is 
 at the risk of the vendee. If it has, the sale is executed and the 
 vendee is its owner. If it has not, the contract of sale is merely 
 executory, and if the goods are stolen or destroyed the vendor must 
 abide the loss.* Whether the contract is executed or executory, 
 depends upon whether it was intended to vest in the purchaser, a 
 present and absolute title to the thing sold without reference to the 
 payment of the priee.^ Where a brewer sold sufficient barley, now 
 in his brewery, to make malt enough to pay a certain sum, and deliv- 
 ery was then made of more than enough for the payment, but it was' 
 not removed, this was held an executed sale.* But where wool was 
 sent to New York and there sold to the plaintiff on the terms that it 
 was to be weighed, the plaintiff to pay certain charges and none 
 other, and a certain price for the wool and sacks, and if any of the 
 wool had already been sold, the sale to be limited to the balance, the 
 plaintiff paying a part down, it was held that this was an executory 
 sale only.^ Delivery is not essential to the passing of the title on a 
 sale, as between the parties, where there is nothing more to be done, 
 but that the purchaser take possession of the goods. It may be other- 
 wise as to third persons.® 
 
 § 577. Where a mechanic is employed to make an article for me, 
 if it be made from his own materials, or if the principal materials be 
 his, the article is his until completed and delivered to me.' If, on 
 the other hand, the principal materials are mine, the property remains 
 mine, notwithstanding his expenditure of labor or of materials upon 
 it, but he is entitled to retain it under his lien for his labor and mate- 
 
 '7Cowen,294 2 Hall, 435. »3Duer, 324. 
 
 ' 15 John. 349. 1 W!s. 141. 4 id. 154 " 39 111. 31. 
 » 5 Duer, 340. ' 7 Jolin. 473. 
 
 *25N. y. 378. 
 
310 THE ■SAME SUBJECiT. 
 
 rials furnished.'^ Thus, where a ship carpenter builds for me a ship 
 with his own materials, although I have paid him for it in advance, 
 the title of the ship is in him untU its delivery, and if it should 
 casually be destroyed the loss is his ; but where he builds it for me 
 of my materials it remains mine subject to his lien. la either case, 
 an execution against the person deemed in law to be the owner may 
 be levied upon it.^ The general rule in these cases is, that under 
 a contract for the building of anything by a person for another, no 
 title passes to the one for whom it is built until it is finished and 
 delivered, or at least till nothing more remains to be done upon it, 
 and it is ready for delivery and approval, and notice thereof is given, 
 even where payments are t(? be, and are made during the progress of 
 the work, or the one for whom it is built is to furnish a small part of 
 the materials, which he does not do.^ It is another general rule that 
 the title to property not then in existence cannot be affected so as to 
 vest the title when it comes into being. But crops to be sown and 
 raised, and other farm and dairy products, are an exception to this 
 rule ; in regard to them the title vests potentially from the time of 
 the executory bargain, and actually as soon as the subject comes into 
 existence.* On an agreement for the manufacture of shingles, to be 
 the property of K. as fast as they are made, the title does not vest 
 until they are made, and there has been an actual or constructive 
 delivery, and so of other property.^ 
 
 §578. The rule is the same where one takes raw materials to 
 manufacture, as corn to make into whiskey, or wheat to be made into 
 flour ; in all such cases the title is in the one furnishing the property 
 to be manufactured, unless the contract simply requires the return of 
 a manufactured article of equal value as that made from the property 
 furnished, in which cases the title passes to the receiver.* So, if prop- 
 erty is furnished to be made up on shares, as black salts to make into 
 pearl-ashes, the same rule applies, and it will make no difference if 
 the manufacturer gives security to the person furnishing raw mate- 
 rials to account for his share.' 
 
 § 5T9. Where personal property is obtained wrongfully, the taker 
 cannot, by any act of his own, acfjuire title to it by converting it 
 
 .' 3 SeW. 433. 
 
 '36 Barb. 473. 
 
 7 Cal. 264. 
 
 '7 John. 473. 
 
 °7Cowen,828. 
 
 3 Seld. 483. 4 Corns. 
 
 ' 1 Keni. 85. 30 N. T. 495. 25 Barb. 
 
 76. 31 Barb. 93. 
 
 12Ind.253. 10 Iowa, 
 
 26. 26 id. 472. 44 id. 528. 35111.514. 
 
 565. 
 
 
 • 33 N. Y. 417. 26 Barb. 472. See 86 
 
 ' 10 John. 287. 
 
 12 Wend. 51. 
 
 Vt. 599. 
 
 
 
ACCESSIOIT AKD COHFrsiON OP GOODS. 311 
 
 into a different species of property. It remains the property of the 
 original owner. Thus, where timber is converted into shingles, corn 
 made into whiskey, logs into boards, timber split into raUs, wood made 
 into charcoal, iron into bars or into a tool, grapes into wine, olives 
 into oil, wool into garments, or leather into shoes, the title to the 
 manufactured article remains in the owner of the raw materials, if 
 the conversion has been made by a willful wrong doer.^ He can 
 acquire no' property in the goods of another by any change wrought 
 in them by his labor smd skill, however great the change may be, pro- 
 vided it can be shown that the improved article was made from the 
 original material. In case of an innocent taking, if the chattel retains 
 its original form, or may be reduced to its original materials, it belongs 
 to the original owner ; but if in such a case it has been converted into 
 a thing of a different species, so that its identity is destroyed, as where 
 wheat is made into bread, or olives into oU, or grapes into wine, the 
 original owner cannot reclaim it.'' The change of property herein 
 spoken of is called accession. 
 
 § 580. Similar questions arise in cases of confusion of goods, which 
 occurs where the goods of two or more persons become so intermixed 
 that they cannot be distiaguished or separated. Where the intermix- 
 ture occurs by consent, the owners become tenants in common of the 
 property according to their respective interests.^ The same rule 
 would also govern in case of an intermixture by accident. If don& 
 otherwise, the whole property belongs to the innocent owner, as 
 against one who has voluntarily mixed it with his own, but who is 
 not allowed to derive any advantage from the act.' If the intermix- 
 ture is by one who does not own any, or all of the rest of the wheat, 
 each party may recover his share.* In Michigan it is held, that if a 
 married woman allows her separate property to be so mixed with 
 that of her husband as to be undistinguishable, or acquiesces in such 
 intermixture, it must, as to hel- husband's creditors, be treated as 
 relinquished to him.^ 
 
 § 581. ItJias been said that a sale procured by fraud passes no title 
 to the purchaser whatever may be the degree of fraud f that, in such 
 a case, where the owner has parted with his possession to the fraudu- 
 
 1 5 Jolm. 348. 6 id. 168. 9 id. 363. 10 * 46 Barb. 186. 4 Bosw. 155. 31111. 
 id. 287. 3 Corns. 379. 19 Barb. 664. 21 283. 
 icl 104. ' 11 Mich. 470. 
 
 = 6 Hill, 461. "14 Wend. 31. 1 HUl, 311. 8 Bosw. 
 
 " 3 Corn's. 389. 30 111. 185. 36 id. 358. 603. 
 
 10 Mich. 433. 3 Ind. 306. See 8 Minn. 
 467. 
 
312 TI7?LE USI>EE FEATJDUUENT PUECHASE. 
 
 lent vendee, and furnislied Mm "with tlie external indicia of the right 
 of selling the goods, he cannot recover the goods from an honest pur- 
 chaser of the fraudulent vendee,^ who at the time of purchase paid a 
 good consideration for -them,' and that an assignee of the fraudulent 
 vendee, or one who bought them of him in payment of a previous 
 debt, or a sheriff who levies upon them with an execution against 
 liim, have no title as against the original owner.' But the late cases 
 have so Yar modified the early decisions as to hold that the title does 
 not pass in respect to property tortipusly, fraudulently, or feloniously 
 taken, but that the rule does not apply to cases where the. possession 
 of property has been acquired by purchase and delivery. If, there- 
 fore, though there is fraud in the sale, the goods are freely and vol- 
 untarily delivered, the title j)asses to the vendee.* But where the 
 possession is obtained by delivery, with intent to pass the property, 
 the vendor may, nevertheless, rescind the contract, and follow and 
 reclaim the goods, so long as he can identify them, until they have 
 been transferred to a iona fide purchaser.^ 
 
 § 682. If the purchase be obtained by an act amounting to felony, 
 their sale to a l)07ia fide purchaser will not affect the title. of the ori- 
 ginal owner.' 
 
 § 583. Where goods are bought under false pretenses, or by fraud, 
 if the seller knowing the fraud sues for the price he affirms the sale.' 
 And where one wrongfully takes goods into his own possession, and 
 the owner recovers a judgment against him for their value, the satis- 
 faction of the judgment tranfers the title of the goods to him.' 
 
 § 684. Where one repairs or renews an article for another, the title 
 to it remains in the original owner, notwithstanding the relative value 
 of the labor and materials bestowed upon it in repairing or renewing 
 it may exceed its original value.^ 
 
 § 686. If one becomes possessed of an article belonging to another, 
 
 as a wagon, and his servant changes a portion of its appendages by 
 
 substituting new whiffle-trees or devices for those attached to it when 
 
 he obtained it, and the owner repossess himself of the wagon without 
 
 \ 
 
 ■ 10 John. 185. 8 Cowen, 338. 30 ° Id. 8 Cowen, 338. 30 Wend. 367. 3 
 ^ "Wend. 367. 14 id. 31. 1 Paige, 493. 5 Duer, 373. 8 Bosw. 603, 
 Sneed, 703. =3 Barb. 30. 33 Wend. 385. 5 Snced, 
 
 " 13 Wend. 570. Lalor, 68. 3 Barb. 703. Supra, § 581. 
 30. 31 Ind. 411. 33 id. 839. ' 4 Paige, 587. 18 N. Y. 553. 31 id. 
 
 ns Wend. 570. 30 id. 367. S3 id. 873. 310. 84 id. 473. Infra, §'633. 
 33 Cal. 359. See 16 Wis. 659. » 6 Jolin. 168. 8 Co"wen, 43. 31 N. T. 
 
 ' 1 Denio, 74. . 33 Barb. 171. Id. 833. 315. 
 45 id. 501. 8 Duer, 341. 6 id. 383. '3 Denio, 638. 
 
GIFT3. f 3 
 
 Knowledge of the change, an action will not lie against Lim for tlie 
 taking. It seems, however, tliat, if upon the owner of the substituted 
 articles demanding them, he refuses to deliver, them to him he is liable 
 for their conversion.^ 
 
 § 58€. A gift of property requires no consideration, and is made 
 perfect by delivery ; if without delivery, it will not pass the 
 title of it to the donee so as to enable him to bring an action in 
 relation to it; as if one should say to another, "I will give you the 
 com growing in that field," unless it is delivered the donee is liable 
 for taking it away.^ The delivery, however, may be inferred from 
 circumstances as in other cases. As where a father bought a lottery 
 ticket which he declared he gave to his infant daughter and wrote 
 her name upon it, and after it drew a prize said the money was hers,' 
 it was held that the jury might infer a gift and delivery :' where the 
 donor used to leave the key of his rooms, in which the property was, 
 with the defendant, and said that whatever he brought there he 
 never intended to take away, ^but gave to defendant's wife ;* where a 
 transfer was made of stock in the books of a bank f where the donor 
 pointed out furniture then in A's house, to A's wife, and told her 
 that he gave it to her f where a person gave to another the keys of 
 her bureau and trunks, and told her among other things what they 
 were, that she gave them to her, that she must take them and take 
 good care of them ; " all my property and everything I give to you ; 
 you know I have given it all to you ; take whatever you please ; it is 
 all yours, but take good care of it :" In all of these cases it was held 
 that there was a goocj delivery.'" So where the donor, when about to 
 start on a journey from which he, did not expect to return, said to a 
 friend that he gave him what was in his trunk up stairs ; that there 
 was enough in it to take care of him for life, or a spell ; but the donor 
 did return and took possession of the room and trunk, but soon after- 
 ward died, when the donee took possession of the trunk and a pass- 
 book therein, it was held that the gift passed both trunk and book 
 and money in the bank.* If the property at the time of the gift is 
 in the possession of the donee's agent, that is sufficient ; it need not 
 
 1 13 Wend. 396. 16 id. 514 ' 10 John. 393. 
 
 = 3 Str. 955. 3 John. 53. 7 id. 36. 13 * 3 Str. 955. 
 
 id. 188. 39N. T.lll. 35 Barb. 505. 45 '4Seld.358. 
 id. 9. 48 id. 581. 37 How. Pr. R. 481. ' 33 N. Y. 503. 
 
 33111.74. 17Ind. 410. 31 Cal. 630. 13 '45Barh. 9. 
 Minn. 43. » 2 E. D. Smith, 356. 
 
 40 
 
314 KINDS OP GIFTS. 
 
 be delivered up to tlie donor that lie may redeliver it as a gift.^ The 
 delivery may be to a third person for the donee.^ 
 
 In the following cases it was held there was no valid gift : Where 
 a person,' just before his death, told his sister there was personal 
 property on the farm (which he had just deeded to her), naming 
 some of it ; that it would be of no service to him, but might be to 
 her, and that he " would give it to her," or " I will give it to you," 
 the farm and personal property then being several miles distant : ' 
 where a husband deposited his money in a savings bank to his own 
 credit, saying he wanted it so either he or his wife could draw it; and 
 both husband and wife entered their names on the signature book, 
 opposite which the bank clerk wrote the words, "to be drawn by 
 either," and the pass-book was given to the husband : * and where a 
 certificate of deposit was taken by a donee from where it was kept, 
 by directions of the donor, who told the donee he gave it to her, and 
 then directed her to put it back, and did not endorse it. 
 
 There are two kinds of gifts, inter vivos and donatio mortis causa. 
 The first of these are between persons in health ; the second in 
 prospect or consideration of death. The main distinction between 
 the two is that the former, when complete, is irtevpcable ; the latter 
 is revocable at the donor's pleasure, and only becomes perfect at his 
 death.^ Both of these kinds require delivery to make them valid.^ 
 
 A promissory note or other paper which the donor holds against a 
 third person, is the subject of a valid gift, as are also drafts and life 
 insurance policies,'' but not the donor's own note or draft.' The 
 donee's own note may be the subject of a gift to him, the effect of 
 which would be to cancel the debt.'. A wife may make gifts to her 
 husband.^" If a parent makes a gift to his minor child, it is said that 
 he may revoke the same, and resume the possession of the property 
 without the infant's consent." Gifts made by a party to one holding 
 intimate and confidential relations with him are good, but must be 
 scrutinized with care, the presumption being against their validity.^' 
 
 1 ir Ind. 410. ' 1 Paige, 316. 33 N. T. 581. 10 Bosw. 
 
 M9 Barb. 631. 1 Paige, 316. 363. 1 Ellis' B. & S. 109. 
 
 » 14 Barb. 343. »7Jolin.36. 18 id. 145. 3 Corns. 93. 
 
 * 23 Barb. 565. 28 N. Y. 69. 8 Ohio N. S. 339. 9 id. 74. 
 ° 39 K Y. 111. 1 Brad. 356. 3 id. 319. 43111.307. 
 
 Id. 339. Id. 433. 1 Redfleld, 417. 34 N. " 13 Minn. 43. 
 
 H. 489. " 38 Barb. 633. 
 
 • 16 Ohio N. S. 86. 1 Redfleld, 417. 2 " 23 111. 74. 
 Brad. 319. " 34 N. Y. 167 
 
LIENS. 315 
 
 And where a person claims a gift from his father, he must make reas- 
 onably strict proof to support his claim.^ 
 
 § 587. Where animals are let, for hire, their increase belongs to the 
 person who hires them unless it be otherwise agreed at the time the 
 contract is made.^ It is otherwise, however, where they are lent. In 
 that case the owner is entitled to the increase.' 
 
 § 688. Where one delivers personal property to another to be 
 returned after a certain time, at the expiration of the time it reverts 
 to the bailor, and he may take it from one having a wrongful posses- 
 sion without rendering himself liable. It is otherwise, however, 
 where the contract is in the alternative, as to redeliver the article or 
 another of the same kind and quality.* 
 
 § 589. Liens are within the definition of special property. They 
 are either general or specific. A general Hen is a right to detain the 
 property of another in the possession of the bailee until all his claims 
 against the owner are paid. A specific lien, or, as it is sometimes 
 called, & particular lien, is a right to detain it until the bailee is paid 
 for some labor or expense bestowed upon the identical property, and 
 nothing more.' Possession is necessary to create a lien, except in 
 cases where it arises from a particular contract, as in the case of a 
 mortgage, or from a levy, when it is supposed to be in the actual 
 possession of the officer levying ; and as a general rule where the 
 holder of a lien parts with the possession of the property to which it 
 is attached, his lien is lost. The lien simply extends to the detention 
 of the property.^ It does not, at common law, authorize the person 
 holding it to sell it without the consent of the owner.' Such a con- 
 sent may be implied from circumstances as well as by express words,* 
 and in the case of a factor he, having a right to sell, has the means of 
 payment within his control.® 
 
 § 590. A general lien is founded upon the custom of a particular 
 trade or business and is not favored in law. It requires strong evi- 
 dence of a settled and uniform usage, or a particular mode of dealing 
 between the parties to establish it. By the custom of a trade, an 
 agent may have a lien upon the property of his employer intrusted 
 to him in the course of that trade, not only in respect to its manage- 
 
 1 45 m. 480. ' 3 Kent's Copa. 636, &c. Story on 
 
 " 8 Jolrn. 433. 13 id. 314. See Story Agency, § 375. Cross on Lien, 14, 15. 
 
 on Bail. 194. ° Cross on Lien, 4, 36, 38. 
 
 » 9 Cowen, 687. 8 How. Pr. K. 370. ' 3 Kent, 643. 
 
 Story on Bail. 99. "23 Pick. 40. Holt's N. P. 383. 
 
 * 7 Cowen, 753. Story on Bail. '283. ° 3 Kent, 643. 
 
316, GENEEAL LIENS. 
 
 ment but for Ms general balance of accounts. This custom must, 
 however, bave been so unifoim. and notorious as to warrant tbe infer- 
 ence tbat tbe party against wbom tbe right is claimed bad knowledge 
 of it, and tbat bis dealings were in contemplation of it. It may also 
 exist by special agreement, as where a dealer gives notice that he will 
 not receive property for the purposes of bis trade or business, except 
 upon condition tbat he shall have a lien upon it, not only in respect 
 to the charges arising upon it, but for the general balance of tbe 
 owner's account, and it is shown tbat the owner received the notice 
 prior to intrusting bis property with the dealer. In this case the law 
 implies that the dealing, after having received tbe notice, amounts 
 to an express agreement that the general lien shall attach.'' Whether 
 a general lien can be created by a notice, in the case of persons who, 
 like common carriers and innkeepers, are under a legal obligation to 
 accept employment in their business, at a reasonable price, and have 
 no right to impose any unreasonable terms and conditions upon their 
 employers, or to refuse to serve them, is not settled.^ 
 
 §S91. In respect to a few classes of business the usage upholding 
 a general lien has been so established that the courts recognize it 
 without proof. Thus attorneys-at-law have a general lien upon their 
 client's papers and moneys, which come into their hands in the course 
 of their professional business, until their bills for services and dis- 
 bursements are paid, and the client cannot obtain bis papers, what- 
 ever may be the result of the business, without paying not only tbe 
 amount due in respect to tbe business for which tbe papers were fur- 
 nished, but also in respect to all other professional business.' They 
 have, however, no lien upon their client's moneys before it comes 
 into their hands.* They also have a lien for their costs in that par- 
 ticular suit upon a judgment recovered by them, which, in l^ew York, 
 under tbe Code," is not measured by the taxable costs, but covers any 
 portion of the damages necessary to pay tbe amount due the attorney, 
 by agreement, for bis services in the suit.' If the judgment be solely 
 for costs, tbe record is notice to all the parties to the suit that tbe 
 attorney has a lien for their amount.* And he has the lien though 
 he was retained by tbe real party in interest, and not by tbe nominal 
 one whom be represents.' If there is no agreement as to the amount 
 he shall be paid, bis lien is limited, under the New York Code, to the 
 
 13 Kent, 636. Cross on Lien, 15. '18 N. T. 368. 40 Barb. 442, IGIowa, 
 
 " 3 Kent, 637, 8. 335. 
 
 = 3 Kent, 640, 641. " 38 N. Y. 337. 
 
 * 13 Wend. 361. ' 38 N. Y. 337. 
 
LIEN" OF BAILEES. 317 
 
 taxable costs.^ It does not extend to an amount due him for services 
 not as an attorney,^ nor does it give him a greater right over the 
 papers in his hands than his client possessed when he left them with 
 him.' In California, this attorney's lien on judgments recovered, 
 does not exist;* nor in Indiana and Missouri.' In Iowa, by the 
 Code, section 1618, and section 2708 of the revision of 1860, tlie 
 attorney has the lien from the time of giving notice to the party 
 against whom judgment has been obtained ; if the notice has not 
 been given, the parties may settle without reference to the attorney's 
 fees.* The rule is similar in Minnesota.'' 
 
 § 592. Factors, among which brokers are sometimes classed, have 
 a general lien for liabilities incurred by them in the course of their 
 agency, whether for payments, advances or guaranty ; it extends to 
 their general balance, including those for responsibilities incurred in 
 the execution of their agency.* But if the goods of different ship- 
 pers are covered by the same bill of lading, the consignee has no 
 right to hold the goods of one shipper for his charges in respect to 
 the goods of the other.* Bankers also have a general lien upon the 
 securities and moneys of their customers in their hands, or deposited 
 with them ;^° insurance brokers one upon the policies in their hands, 
 and any funds received through their means ;" common carriers for 
 freight and charges upon goods carried, but not upon general balance, 
 unless it can be shown by express agreement, or notice to the owner .^^ 
 Calico printers, fullers in some places, packers and wharfingers have 
 also been held to have a general lien.^^ 
 
 § 593. Every bailee for hire (including all such mechanics, trades- 
 men and laborers as receive property for the purpose of repairing or 
 otherwise improving its condition), and who by his labor and skill 
 has imparted an additional value to it, has a lien upon the prop- 
 erty for his reasonable charges, whether the price of the labor be 
 agreed upon or not." The lien extends to the entire work upon 
 
 ' 7 Abtott, 310 16 How. Pr. K. 160. Smitli's Merc. Law, 339. Story on 
 
 = 8 Mod. 307. Agency, § 381. 18 Md. 373. 9 Ind. 
 
 = 4 Taunt. 807. 317. 
 
 *3Cal. 507. "5 Taunt. 56. 
 
 > 10 Ind. 103. 18 Mo. 18. " Story^on Cont. § 331 (ed. of 1844). 
 
 •7 Iowa, 317. 16 id. 335. 18 lU. 488. 30 id. 33. 
 
 ' 1 Minn. 370. 8 id. 303. " Mont, on Lien, 33. Cross on id. 338, 
 
 'Story on Agency, § 376. 6 TemR. 341. Id. 353, 354. See also 19 Ind. 336. 
 
 358 10 Paige, 305. 36 "Wend. 367. 21 14 Iowa, 485. 3 Kent, 635. 
 
 Mo.' 48. 10 Wis. 111. » 3 Hill, 485. 7 Ind. 31. 13 Wis. 561. 
 
 "36111.195. 15 id. 398. Cross on Lien, 34. 8 Iowa, 
 
 "3 Bro. C. C. 31. 7 Taunt. 378. 307. 
 
318 
 
 which the expenditure has been made, as where a carrier transports 
 an entire cargo, he may retain the whole of it nntil he is paid for his 
 services.^ 
 
 § 594. As a specific lien is intended for the convenience and 
 encouragement of trade only, it does not apply where the service or 
 expense bestowed upon the property is not within the scope of some 
 particular branch of commerce or trade. As an illustration of this 
 rule, a farmer, or a livery stable keeper who receives horses or cattle 
 to feed and care for, or to pasture, has no lien upon them, because the 
 service is not that of a tradesman.^ But a tavern-keeper who receives 
 and feeds the horse of his guest has a Hen upon it for the service, 
 because it is within the scope of his trade. If, however, the tavern- 
 keeper receives his neighbor's horses into his stable to keep by the 
 week, month or year, he will, for this purpose, be regarded in the 
 same light as a farmer or livery stable-keeper, and have no lien 
 except by special agreement. Where on the other hand, a farmer or 
 livery-stable keeper receives horses or colts to train or break, or mares 
 to be covered by his horse, it seems that he will, for this purpose, be 
 deemed a tradesman, and have a lien.® At common law, the keeper 
 of a boarding-house has no lien on the baggage and effects of his 
 guests.* A recent statute in 'New York confers the same rights on 
 him as those possessed by an innkeeper, the lien extending to. the 
 goods brought upon the premises to furnish his room, although they 
 do not belong to .the boarder, but to a stranger.' 
 
 §595. The lien of a tavern-keeper is in some respects peculiar. He 
 is bound to receive and entertain travelers, and is answerable for the 
 loss of the goods of his guests, although they are burned or stolen by 
 his servants or others, or lost without any fault upon his part.^ This 
 rule has been applied where a sleigh load of wheat was put by a guest 
 into an outhouse of the inn, where loads of that description were 
 usually received, and the grain was stolen; or where the carriage 
 containing the goods was left in an open unenclosed space near the 
 highway, designated by the innkeeper's servant.' In case of loss, the 
 presumption is that it was by the innkeeper's fault. But he may 
 
 ' Bac. Ab. Trover, (E.) 3 Kent, 635. »3Hm,485. 25 Wend. 653. 33 N. T. 
 
 = 3 HiU, 492. 28 N. Y. 252. 16 Barb. 571. 36 Barb. 70. Id. 452. 42 id. 230. 
 
 595. 23 Cal. 364. Cross on Lien, 348. . 12 Mich. 53. 2 Kent, 594. 17 lU. 302. 
 
 = Cro. Car. 271. 3 Hill, 485. 3 Carr. & 83 Cal. 558. 34 Ind. 847. See 10 id. 
 
 P. 530. 12 J. Scott, N. S. 638. 213. 
 
 * See 3 E. D. Smitli, 148. ' 31 Wend. 383. 
 
 ' Seas, 1860, p. 771. 42 Barb. 633, 637. 
 
WHO IS A GUEST. 319 
 
 show as a defense that the loss is attributable to the personal negligence 
 of the guest.^ For this extraordinary liability the -law gives him a lien 
 upon the goods of his guest for his reasonable charges; and this rela- 
 tion of landlord and guest must exist to create the lien.^ One case 
 defines a guest as one who comes and remains as he chooses, and leaves 
 when he pleases, without any express bargain for remaining a definite 
 time, and paying only for the actual entertainment which he receives.^ 
 "Within this or any rule, a regular boarder by the week at a hotel is 
 not a guest.* It is not necessary that one go personally to the hotel ; 
 if he sends his wife or servant for him, the relation is constituted.^ 
 If one has just paid his bill, and his horses are injured while the 
 guest is aiding in getting them out of the stall, he is still a guest, 
 and the landlord's liability remains.^ If, on the other hand, he has 
 paid his bill, and has finally left, he is not a guest, though he has 
 left his trunk at the inn ; it would be otherwise if he had left for a 
 very short time, as a day only, or was charged for his board during 
 his absence.' Consequently, it is not necessary that he should be 
 actually within the tavern when the loss happens, or the lien accrues. 
 If one sends his horse or trunk in advance to an inn, saying he will 
 ' soon be there himself, he will, for the purposes of both the inn- 
 keeper's liability and his lien, be regarded as a guest from the time 
 the host took charge of them.^ So if he left his horse at the inn, to 
 be fed and cared for while he went to a neighboring town to remain 
 a few days and return, the horse will be in the innkeeper's hands as 
 the horse of a guest, and subject to his lien.' "Where an agreement 
 was made between an innkeeper and the owner of a horse, for the 
 entertainment and keeping of the horse and a man, one day in each 
 week, the horse to be kept in a particular stall, and fed with pro- 
 vender furnished by the landlord, but taken care of by the man 
 attending him, it was held that the relation of landlord and guest 
 existed." But it does not exist where a horse is left one night by 
 one who is neither a guest at the inn nor intends to be." ISTor can it 
 exist in the case of the keeper of a mere restaurant.^ If the guest 
 has left some inanimate property with the innkeeper, from the keep- 
 
 > 34 Barb. 384. 36 id. 70. 17 111. 303. ' 37 How. Pr. R. 438. 
 43 Id. 469. lOInd. 313. » 58 Barb. 451. 
 
 = 13 Mich. 53. 1 Edm. Sel. Cas. 373. ' 23 Iowa, 214. 
 
 = 35 Iowa, 553. In California an inn is " 3 Hill, 485. 11 Barb. 41. 
 
 said to be a place of public entertainment ° 35 Wend. 653. See 3 HiU, 485. 
 
 for all travelers wbo clioose to visit it. " 14 Barb. 193. 
 
 38 Cal. 558. Also, 54 Barb. 317. 5 Sand. 343. " 38 KiY. 577. 3 Hill, 485. 
 
 > 3 Kansas, 357. '"' 1 Hilton, 193. 
 
320 
 
 ing of whicli he derives no advantage in the way of his trade, neithei 
 the extraordinary liability of the innkeeper nor his lien will attach.^ 
 The innkeeper's lien will he lost if he permits the goods to he.taken 
 away from his possession, although they are returned to him, tliere 
 heing no fraud.* And he cannot detain one horse for the charges 
 incurred for another, where the guest has several horses kept and has 
 taken all but one away.^ His lien for the keeping of the horpe or 
 other property .of his guest is valid against the owner, although the 
 guest did not own it, and even where he stole it, if it was received 
 and kept without knowledge of the facts.* The rule is the same if 
 the horse is wrongfully seized under color of a legal proceeding, 
 unless the innkeeper knew the party making the seizure was a wrong- 
 doer at the time.' 
 
 The common law rules relative to innkeepers have been modified 
 in some, of the states by special statutes. In New York it' is pro- 
 vided (Laws of 1856, p. 774, ch. 421) that, " whenever the proprietoif 
 or proprietors of any hotel shall provide a safe, in the office of such 
 hotel, or other convenient place for the safe keeping of any money, 
 jewels or ornaments belonging to the guests of such hotel, and shall 
 notify the guests thereof, by posting a notice (stating the fact that 
 such safe is provided, in which such money, jewels or ornaments 
 may be deposited) in the room or rooms occupied by such guest in a 
 conspicuous manner, and if such guest shall neglect to deposit such 
 money, jewels or ornaments in such safe, the proprietor or proprietors 
 of such hotel shall not be liable for any loss of such money, jewels or 
 ornaments, sustained by such guest, by theft or otherwise." 
 
 Under this statute it is held that personal notice to a guest that a 
 safe is provided, and that the innkeeper will not be liable for a loss 
 of money, &c., unless given to him for deposit therein, is equivalent 
 to the posting of the notice required by the act ; and that, independ-. 
 ent of the statute, if a guest who has received such a verbal notice 
 leaves $2,000 in gold coin in his room at a hotel, with no person 
 therein, he is guilty of negligence, and cannot recover of the inn- 
 keeper.* Also, where a guest offered a package of jewelry to a book* 
 keeper, requesting him to put it in the safe, but made no statement 
 of its contents, nor was asked in regard thereto by the book-keeper, 
 
 ' 3 HUl, 489 and refa. 1 Str. 556. 3 Bulst. 268. 1 Roll. Ab. 
 
 " 3 Hill, 493 and refa, 6 id. 43. 1 449. 3 Hill, 490. 43 Barb. 633. 1 Com. 
 East, 4. Bench, N. S. 267. 
 
 » 7 Buls. 207, 317. " 3 Stark, 172. 
 
 ♦Jac. Law Die. "Inna." Salk. 388. " 31 N. Y. 111. 
 
NOTICE TO BE GIVEN BY INNKEEPEES. 821 
 
 who told kim there was bo necessity of putting it in the safe, to take 
 it to his room, and that it will be just as safe there, whereupon it 
 was taken to the rooia, and aftjerward atolen, it was held, the 
 requisite notice having hee^i published, that the landlord was not 
 liable.^ It is also held that if this statutory notice is given, the laad^ 
 lord is not Hable, even for money for ordinary traveliag expenses, if 
 it is kept by the guest, and not placed in the safe.' 
 
 At common law, an innkeeper is responsible for the goods of a 
 guest, and for losses caused by his own negligence, or that of his 
 servants, or by the depredations of knaves and marauders within or 
 without the house ; he must guard them against the incendiary, the 
 btirglar and the thief.^ Accordingly, he was held responsible for the 
 loss by fire of the goods of his guest in a bam, the cause of the fire, 
 being vrnkuown, and the guest free from negligence.* This rule is, 
 in part, modified in New York, by a statute (I^aws 1866, ch. 65$, 
 p. 1415) which provides that, " no innkeeper shall be liable for the 
 loss or destruction by fire of property received by him from a guest, 
 stored or being with the knowledge of such a guest in a barn or 
 mother out-building, where it shall appear that such loss or destruc- 
 tion was the work of an incendiary, and occurred without the fault 
 or negligence of such innkeeper." 
 
 A subsequent section provides that no animal belonging to a 
 guest, and destroyed by such a fire, shall be deemed of a greater 
 value than three hundred dollars, unless an agreeinent between such 
 guest and innkeeper is proved that a higher estimate shall be made 
 of the same. 
 
 A still fiirther statute in Kew York (Laws of 186Y, ch. 611, 
 •pp. 1T27, 17^8, § 2) provides that, "Every keeper of a hotel, 
 restaurant, boarding-house or inn shall post in a public and con- 
 spicuous place in the office or public room, and in every bedroom in 
 said house, a printed copy of this act, and a statement of the charge 
 or rate of charges by the day, and for meals or items furnished, and 
 •for lodging. No charge or sum shall be collected or received by any 
 eiich person for any service not actually rendered, or for any item 
 not actually delivered, or for a longer time than the person so 
 charged actually remained at such place. For any violation of this 
 section, or of any provision herein contained, the offender shall 
 forfeit to the injured party three times the amount so charged, and 
 
 ' 44 Barb. 531. 
 
 ' Supra, § 595. 
 
 » 51 Barb. 633. See 17 lU. 303. 
 
 • 33 N. Y. 571. 
 
 41 
 
 
322 OTHER irENS. 
 
 shall not be entitled to receive any money for tlie meals, items, 
 services or tinae charged." 
 
 § 596. There are a variety of liens against ships and property 
 wrecked, which do not come within the cognizance of a justice's 
 couf t ; as for repairs, equipment,* provisions and stores, wharfage and 
 port expenses, provided for by the New York statute.^ There is, 
 also, at common law, a lien for salvage in favor of a person who has 
 saved goods from a ship on fire or otherwise in danger upon the high 
 seas, and the rule is the same in the case of goods thrown on shore 
 from a wreck.^ This was, howevet, only in case of goods lost at sea, 
 and did not extend to the case of goods sunk with a vessel in a 
 navigable river.* The rule of the common law in relation to goods 
 thrown upon shore, has been superseded in JS'ew York by the pro- 
 visions of the Eevised Statutes entitled " Of wrecks," which, by a 
 special proceeding, provide-for the remuneration of the salvors, while 
 they require the property saved to be immediately taken from them 
 by the proper officers.* 
 
 § 597. The finder of property lost upon land, generally has no lien 
 upon it for his care and trouble in its preservation, but is bound to 
 deKver it to the owner on demand, and can only recover his com- 
 pensation by action upon an implied contract to pay for it.' There 
 is an exception to this rule, however, furnished by the statute in 
 relation to estrays. It is provided that where horses at any time, 
 and where cattle or sheep, have, between the first day of November 
 and the first day of April, strayed upon any one's inclosed land, he 
 may, within ten days {hereafter, deliver to the clerk of the town a note 
 in writing, containing his name and place of abode, and the age, 
 color and marks, natural and artificial, of each estray as near as may 
 be. He thereby acquires a lien for their keeping, the amount of 
 which is to be ascertained by two fence viewers of the town, and for 
 a fee of nine cents each, for the horses or neat cattle described, and 
 three cents for each sheep, and the fees due the town clerk. K the 
 owner does not appear to claim the estrays on or before the first day 
 of May next after the finding, or refuses to pay the sums charged on 
 them, the finder may sell them at public auction, upon giving twenty 
 days' previous notice by advertisements, to be posted in three of the 
 most public places in the town, and from the moneys may retain his 
 
 '2K. S.493㤠
 
 1. 3id.(Banks'5t]ied.) 
 
 » 2 H. Bl. 354. 
 
 3 Baib. 303. 7 id. 
 
 113. 
 
 795. 
 
 1 
 
 
 
 n R. S. 690, § 
 
 3. 3i4(Ba,Til5s'5tlied.) 
 
 "-1 Ld. 
 
 Eaym. 
 
 393. 5 Burr. 
 
 3733. 8 
 
 960, &c. 
 
 
 
 East, 57. 
 
 
 
 
 "■ 3 Kent, 036. 
 
 
 
mechanic's LIEU. 323 
 
 cliarges, the fees thereon, and the expenses of the sale, and shall pay 
 the residue to the owner, if he appear within a year to demand it. 
 If he does not within a year demand it, it is to be paid to the super- 
 visor of the town for the use of the town.^ If the person on whose 
 land the estray comes does not pursue the statutory direction, he 
 loses all benefit of it, and has no Hen upor. it. "We give this 
 synopsis of this statute, which may be read in connection with the pro- 
 visions of the Laws 1867, of whicn a copy is given ; ante, section 533. 
 
 § 598. The lien of a mechanic or manufacturer wiU attach to the 
 article he manufactures, although the material and a part of the 
 expense bestowed upon it is furnished by the owner. Thus, a brick- 
 maker who manufactured a quantity of bricks upon a brick-yard 
 furnished by its owner, who also supplied all the wood and neces- 
 saries to carry on the work, and agreed to pay the workman a 
 particular price for every thousand of the brick made upon the 
 return of the vessel that transported them to market, was held to 
 retain his lien until he parted with the possession of the bricks.'' 
 
 § 599. Where a contract is entered into by which one agrees to 
 manufacture boards for another, and to transport them to market at 
 a stipulated price, and it is provided that the manufacturer shall 
 have a lien therefor upon aU the boards delivered after a certain 
 quantity is delivered, if the whole quantity made is not sufficient to 
 enable the manufacturer to deliver the specified quantity and also to 
 satisfy his lien, and the inability is caused by the omission of the 
 other party to supply him with a sufficient number of saw-logs out of 
 which to make the boards, the common law lien attaches to the last 
 quantity manufactured, ncftwithstanding the special agreement.' 
 
 § 600. A person engaging to supply one entire work, has a Hen 
 for the price or balance due upon eveiy individual part of it, so that 
 after delivering a part, he may retain the residue for such price or 
 balance.* 
 
 § 601. A mere creditor has no lien upon the goods of his debtor 
 which may happen to be in his hands, and he cannot, therefore, apply 
 them in payment of his demand.' But where one advanced money 
 on notes deposited by the payee, to whom they were given for the 
 debt of a third person who was indebted to him, it was held that the 
 lender had a lien.* 
 
 ' 1 K. S. 351, §§ 17-39. Id. (Banks' * 3 Maule & Selw. 167. 5 id. 180. 4 
 5th ed.) 831. Corns. 553. 
 
 » 4 "Wend. 393. ' 15 Mass. 490. 
 
 ' 11 Wend. 77. » 1 A. K. Marsh, 109. 
 
32-i WAIVEK OF UEN. 
 
 § 602. Wherever tliere is a lien, tlie person entitled to it jsaay 
 retain the goods againat the owner until the money owing is either 
 paid or tendered. The payment or tender of the money owing, 
 satisfies the lien, and then the party owing it is entitled to its imBae- 
 diate possession, and if it is refused, he can maintain an laetion for its 
 unlawful detention or conversion.^ And if one having a lien upon 
 goods claims to retain them upon a diferent ground when they are 
 demanded of him, and makes no mention of the lien, he will be 
 liable for their detention without showing a satisfaction of the lien.^ 
 So, where a factoi bases his refusal to deliver property consigned to 
 him upon a claim of a lien for his general balance, he cannot, on 
 felling to establish thatj defend on the ground of a Hen for expensiM 
 and charges on that particular property.* But if he merely omit t& 
 mention the Hen when the property is demanded, or claims it for too 
 Icmg a time, or insists on a right to detain it on two grounds, one 
 only of wMch is valid, he does not^ waive the lien.* If, however, 
 where there is a claim to detain on two causes of lien, in Buch a way 
 as to dispense with a tender upon either, the liens are waived.* 
 
 § 603. A lien may be waived by express or implied contract, as 
 where a factor agrees that upon tihe receipt of Jiis piincipal's goods, 
 he will, irrespective of his balance, pay him the proceeds, or the 
 circumstances are inconsistent -vrith a lien.* It is also waived when- 
 ever the person holding it enters into a special agreement inoon- 
 eistent with its existence, or frpm which a waiver may fairly be 
 inferred ; as when on a purchase, the vendor gives credit by extend- 
 ing the time of payment, or takes a distinct and independent security 
 for it. Here he shows that he relies, in toe case upon the responsi- 
 feiHty of the vendee, and in the other upon the new security.'' It 
 makes no difference in this rule that the security is defective.^ But 
 an agreement to receive security is no waiver until the security is 
 delivered." If, however, there is an a^eement to look to the 
 personal credit of the person for whom work is done, or to that of a 
 ■third person, the Hen is waived.'" And this even though the person 
 
 » 9 Cowen, 52. 6 Wend. 608. Cross ' 5 HurM. & N. 931. 
 
 onXien, 13. ' Cross oa Lien, 84 3 Kent, 639. 1 
 
 ' 1 Camp. 410. 9 Bowl. & Ryl. 81. 6 Cr. & M. 743. 6 Tenn R. 258. 
 
 Wend. 608. 20 id. 268. 24 id. 169. 2 ' 24 111. 483. 4 Barn. & Ab. 53. 1 Hilton, 
 
 Denio, 643. 10 Barb. 184. 7 Ind. 31. 293. 
 
 23 Cal. 608. 3 Bing. 33. 4Mees. &W. • 12 001. 301. 
 
 370. • 23 Ind. 533. 
 
 " 6 Com. B. N. S. 367. 3 Seld. 288. " 14 Wend. 301. 
 
 * 6 Wend. 608. 19 Com. B. N. 8. 638. 
 
"WEONG-DOEE CANNOT GIVE A LIEN. 325 
 
 wto is to make the payment becomes insolvent before tlie delivery 
 of the property.^ > 
 
 § 604. A lien will also be waived where a factor volxmtarily parts 
 with the property^ as by pledging it for his own debt, or siiifferiiig it 
 to be attached. And, generally, it is waived where the person 
 who is entitled to it, voluntarily parts with the possession of the 
 goods, there being no fraud practiced upon him in prociaring him to 
 do so.* This rule has been held with great strictness. In a case 
 where it was agreed that the owners of a saw-mill who sawed logs 
 into boards, should permit them to be removed to a lot provided by 
 the owner at a short distance, where they should remain subject to 
 their liesa. until paid, and they were so remaoved, it was held that the 
 Hen was waived as to third persons, one of the court expressing the 
 opinion that it might possibly have been enforced as between the 
 parties.* The lien is also waived where the person having it causes 
 the property* to be taken on an execution in his own favor.* But if 
 the delivery to a third person be merely for the benefit of a factor, 
 and as a servant to the factor, with notice of the lien, the lien is not 
 waived.* 
 
 § 605. If a factor pledge the goods of his principal, the latter may 
 recover the value of them in turn against the pawnee, on tendering 
 to the factor what is due to him, without any tender to the pawnee, 
 for the reason that a lien is a personal right and cannot be assigned,' 
 But a party having a lien may transfer the possession subject to the 
 lien to a third person, who may lawfully hold the property until the 
 lien is paid.' 
 
 § 606. Parting with possession of a part of the property to which 
 the lien attaches will not destroy it upon the remainder, provided the 
 holder retains either actual or constructive possession ; and in like 
 manner, parting with the possession upon a condition which is not 
 performed, will not waive it.^ 
 
 § 607. A mere trespasser or wrong doer, who gets possession of 
 property without the consent of the owner, cannot, in general, deal 
 with it so as to give a lien thereon as agaiust the true owner ; and 
 generally, where one comes into possession of property without due 
 authority, he cannot, except in the case of a tavern-keeper who has 
 
 '3B0SW. 489. *5Bing. 130. 
 
 » 2 Kent, 639. 8 Pick. 73. 1 East, 4. ' 3 Kent, 639. 
 
 6 Hill, 43. 36 Wend. 467. ICar.&P. • 5 Term E. 604. 
 
 575. 8 Iowa, 307. ' 19 Wend. 431. 1 Minn. 134. 
 
 36 Wend. 467, 481. ' 3 Maule & S. 169. 
 
826 ACTION OF TEOVEE. 
 
 received beasts in good faith to take care of for his guests, maintain 
 a lien upon them against their true owner. Thus a tradesman can- 
 not claim a lien upon a chattel delivered to him by the owner's 
 servant without the authority of his master ; and one who has 
 received, from a factor, his principal's goods upon a pledge, cannot 
 retain them.'^ 
 
 § 608. As the holder of a lien is only entitled to detain the pro- 
 perty under the lien, if he should sell it, the owner is^ remitted to his 
 original rights discharged of the lien, and may reclaim it or bring 
 his action against the bailee for its conversion.* 
 
 § 609. Executors and administrators stand in the place of their 
 testator or intestate, and may bring an action for taking, detaining 
 or injuring his goods, or the goods which have come to their hands ; 
 and in like manner may the trustee of an express trust in ISTew 
 Tork.* And where an action of trover was brought by an only son, 
 entitled to succeed to his father's personal estate, for itfe conversion, 
 although it was shown that no letters of administration had been 
 granted, the action was sustained, it appearing that the defendant 
 had, at several times, expressly admitted the right of the plaintiff, 
 and had offered to give him the possession of the property.* 
 
 § 610. In the action of trover, the holder of a lien who brought 
 his action against the owner for the conversioti of the property 
 recovered as damages the amount of his lien. If he brought it 
 against a stranger he recovered the value of the property, the sur- 
 plus of which, above his lien, he heM to the use of the owner.^ It 
 remains to be determined whether the holder of a lien can, under 
 the Code of Procedure (§ 113), recover against a stranger who has 
 taken or detained the property, any more than the amount oif his 
 lien. The point does not seem to have been taken?, as yet, in any 
 case. The cases above cited simply refer to the old rule with appro- 
 bation. One case' holds that the rule, as between the holder of the 
 lien and the general owner, is not changed by the Code. 
 
 § 611. The action of trover might be brought where the plain- 
 tiff's goods had been converted, notwithstanding he had recovered 
 them after the conversion, and in this case the recovery only operated 
 
 • 3 Atk. 44. 2 Str. 1187. 6 Term R. • 7 Cowen, 670. 31 Wend. 301. 29 
 
 604. 4 Bsp. 174. 7 ' East, 5. 42 Barb. Barb. 522. 41 id. 471. 6 Bosw. 176. 23 
 
 623. 25 Wend. 653. N. Y., 494. 38 id. 585. 13 Minn. 391. 
 
 ' 19 Wend. 431. See 1 Minn. 134. The same rule of damages extends to 
 
 ' 3 Bailey, 174. 1 Pick. 389. Code, § 113. pledges, 34 Cal. 125. 
 
 < 7 Wend. 854. 13 id. 457. " 33 Barb. 340. 
 
CHATl'EL MOETGAGES. 327 
 
 to mitigate the damages. Thus wliere a bailee of property used or 
 disposed of it contrary to his agreement with the owner, as when he 
 had hired his horse to go a certain distance and went beyond it, or 
 when he hired it "for a particular time and kept it over the time, the 
 owner might bring his action for the conversion and recover his 
 damages, as the use of the property contrary to his agreement was a 
 conversion in law.^ 
 
 § 612. A conversion is also implied, as a general rule, in all cases 
 where one has received the goods of the plaintiff in any manner, 
 and, without a right to detain them, refuses to deliver them to him 
 upon request, with the single exception of a negotiable bill or note 
 transferred before its maturity in the fair course of trade.* 
 
 § 613. lilortgagees and pledgees have a special property in the sub- 
 ject of their mortgages or pledges. A mortgage is a sale of an 
 article upon a condition that if the mortgager shall, within a certain 
 time specified in the contract of sale, pay to the mortgagee a certain 
 sum of money (then due, or, it may be, for future advances), or 
 perform some specified service, the sale shall become void.' Within 
 this rule, a bill of sale, absolute on its face, but made under a cotem- 
 poraneous parol agreement to hold it as security for a certain debt, is 
 a mortgage.* If it is valid as to a part of the property embraced in 
 it, it is not rendered void as to such property by reason of its pro- 
 fessing to mortgage other property as to which it is inoperative.* 
 Property not yet in existence, actual or potential, cannot be sold or 
 mortgaged; but that yet to^be acquired and which will be the pro- 
 duct of property which the mortgager then owns, may be mort- 
 gaged or sold. "Within this rule the expected wool growing on 
 sheep, or the crops, dairy and other products of a farm, may be sold 
 or mortgaged.^ The rule is otherwise in "Wisconsin.' But, a mort- 
 gage, not only of all the goods then in a store, but of those, also, 
 which might thereafter be put therein, although good as to those 
 then in the store, does not hold those thereafter put therein.' And 
 yet, if those goods are delivered by the mortgagee to the mortgager, 
 lie will hold them even against the claims of the person who had sold 
 
 > Bac. Ab. Trover, E. 5 Mass. 104. * 31 N. Y. 543. 
 
 Infra, §§ 623, 635. > 19 N. Y. 133. 17 id. 680. 
 
 ' 6 Mod. 213. 7 John. 254, 357. 9 ' 8 Barb. 111. 84 id. 10. 41 id. 404. 
 
 Wend. 167. 10 id. 389. Id. 610. 33 N. Y. 417. (See 30 Barb. 37.) 
 
 ' 11 Micli. 531. 1 boms. 496. 35 N. 33 111. 330. 34 id. 17. 
 
 Y. 374. 40 Barb. 180. 16 Ind. 380. 16 ' 7 Wis. 159. 10 id. 897. 
 
 Iowa, 423. 35111.383. »19N.,Y. 133. 
 
S2'8 WHEN PJSESONAL MOETGAGES ABE TALID. 
 
 them to the mortgager.^ A personal mortgage need not be under 
 seal, and may be executed by one partner for the firm.* It transfers 
 the title subject only to be defeated by the performance of the 
 eiihditioii, and after default in the condition the title of the mort- 
 gagee , is absolute, and a tender of the inoney dae will not reinvest 
 the title in the mortgager.^ This is so, even if the mortgager still 
 remains in possession,* or the mortgagee takes the property without 
 sale, oi: it is worth much more than the debt/ and if the mortgager* 
 sells it to a bona Jlde purchaser, he acquires no title.* If the mort- 
 gager sells it under the power of sale in the mortgage, he must 
 accouat for the balancej if any, in hii hands o'ver the debt and 
 expenses.'' The Tule is not changed although the mortgage contained 
 a power of sale, nor by the acceptance aftet forfeiture of part of the 
 money due.' The title still remains in the mortgagee and if he sells 
 the property he c^n convey a good title to it, but if he should accept 
 the whole sum due the title would reinvest in the mortgager,* and if 
 he sells a portion of the property for sufficient to pay his debt with 
 the iiiterest and expenses, the title of the residue reverts to the mort- 
 gager and a sale thereof by the haortgagee is wrongful." If he has 
 sold stock or other things mortgaged, the debt is canceled to the 
 extent of the avails of the sale.^^ The mortgager cannot pledge the 
 propertyj or otherwise create a lien upon it to the prejudice of the 
 niortgagee, even if the property be live animals and the lien is for 
 their keeping.^ The mortgage may contain a datise authorizing the 
 mortgager to retain possession of the goods until it becomes due ;** 
 but a clause or a separate agreement which authorizes the mortgager, 
 not merely to remain in possession^ but to sell and otherwise deal 
 with the property as his own, renders the mottgage absolutely void." 
 If, however, the property mortgaged is goods in a gtore^ a clause 
 allowing the mortgager to sell thenb. for cash, only, which is to be 
 paid to the mortgagee on the mortgage does not necessarily make 
 the mortgage voidj but raises a question for the jury,^* and that 
 
 ' 40 Ohio N. S. 481 tl Wis. 307. 29 • 12 Wend, 61. 3 Denio, 33. 
 
 HI. 122. ' 2 Benio, 170. 3 id.'33. 6 Paige, 583. 
 
 " 5 ilich. 107. » 3 Benio, 33. 11 Iowa, 285. 
 
 '35N. Y. 274. 22 id. 39. 4C6m8.497. " 6 Mich. 438. 
 
 39 Barb. 390. id. 608 and reft. 22 111. 546. " 28 N. Y. 353. 
 
 13 Wend. 61. 3 Denio, 33. 35 Cal. 404. " 1 Kern. 501. 17 N. Y. 303. 84 id. 353. 
 
 See 21 Wis. 427 for the rule there. " 3 Seld. 213. 3 Kern. 577. 19 N. Y. 
 
 * 89 Barb". 608-9 and refs. 123. 5 Transcript, 52 ; but see 23 111. 377. 
 
 " 3 Denio, 33. 40 Barb. l89. 7 Mich. 108. Id. 519. 
 
 "SgN. Y. 441. "34N. Y.359. 17 Iowa, 89. 
 
 '13 Wis. 410. 3 Denio, 33. 
 
■WHEN LIEN UNDER MORTGAGE CEASES. '32,9 
 
 money, as against the creditors of the mortgager, must fee applied to 
 reduce the mortgage, whether it is in fa;Gt paid over or not.^ If the 
 mortgage is payable on demand, a special demand must be made 
 before the mortgage is due ot the property rests in the mortgagee.^ 
 If it is void as to a part of the -Ijfoperty, it is wholly Void.' 
 
 § 614. , As we have seen, a mortgage does not necessarily require a 
 delivery of the property mortgaged,* and as between the mortgager 
 and mortgagee it may bp made by parbl.^ But where there is not an 
 actual delivery and continued possession by the mortgagee, it is, by 
 statute, void, as agaiast subsequent purchasers and mortgagees in 
 good faith, unless the mortgage, or a true copy, be iled and entered 
 in accordance with its provisions. These require that it shall be 
 filed in the several towns or cities where the mortgager resides ; in 
 the" city of ISTew York in the register's office ; in the other cities and 
 towns in which a county clerk's office is kept, in such office, and in 
 towns where a coimty clerk's office is not kept, in the town clerk's 
 office. The lien of the mortgage so filed will cease as against the 
 creditors of the mortgager and purchasers ia good faith or subse- 
 quent mortgagees, at the end of one year from the time of filing, 
 unless, within thirty days next preceding the expiration of the year, 
 a true copy, together with a statement exhibiting the intel'est of the 
 mortgagee in the property claimed by virtue thereof, shall again be 
 filed in the office of the register or derk of the city or town where 
 the mortgager shall then reside.* While, under this statute, a literal 
 copy is not necessary, it not being an objection that it is made on a 
 difierently printed blankj but the variance not affecting any substantial 
 provision ;' yet, where it is otherwise, as where the amount secured 
 was made $100 too much in the copy^ the mistake is fatal.^ It is 
 enough that the filing is in the town where the mortgager resided at 
 the execution of the mortgage, though he has changed his residence 
 when it is filed.' If themortgager has left the State in the mean- 
 time, the provision as to refiling cannot be Complied with, and a honA 
 fide purchaser of the goods, after the expiration of the year, acquires 
 a title superior to the lien of the mortgage." If several mortgages 
 are given, at different times, to different creditors iipon the same 
 
 1 38 N. T. 360. ' Laws of 1833, ch. 379 ; also id. of 1849, 
 
 2 19 N. Y. 498. ch. 69. 3 R. 8. (Banks' Stli ed.) 338, 334. 
 
 ' 5 Transcript, 33. ' 16 Barb. 46. 
 
 * Ante §613, 5 JoM. 2S8. » 19 N. Y. 496. 
 
 '9 Wend. 345. » 17 Barb. 333. , 
 
 '» 37 N. Y. 198. 
 42^ 
 
330 FILING OF CHATTEL MOETGAGES. 
 
 property, to secure antecedent debts, and neither is filed in the proper 
 office, the one first given has the priority. The omission to refile a 
 chattel mortgage does not render it invalid as against purchasers . or 
 mortgagees intermediate the original filing, and the time when there 
 should have been a refiling, even where the chattels remain' in the 
 mortgager's possession.' The refiling is as nugatory, if made before 
 the commencement of the thirty days, as if made after that time, 
 and this refiling must be continued from year to year.' The state- 
 ment accompanying them must be made by the mortgagee or his 
 attorney,* and is not sufficient if it says merely " Kefiled and 
 renewed ;" a fuU statement, as required by the statute, is necessary.* 
 If a mortgage is duly filed, and within a year the property is unlaw- 
 fully converted by a third person, the mortgagee may bring an action 
 therefor after the year, and although he has not yefiled his mort- 
 gage.° When the office of clerk is vacant, or he is absent, it is suffi- 
 cient if a person in charge of the office receives it, files it and places 
 it among the other personal mortgages in the office f and if left at 
 the proper place, a neglect to file or index it, or an error in endorsing 
 it on the part of the clerk, by which a subsequent purchaser is misled, 
 will not prejudice the rights of the mortgagee.' 
 
 § 615. The omission to file a mortgage of chattels can only be taken 
 advantage of by a creditor, or by a purchaser, or a subsequent mort- 
 gagee in good faith. By a creditor is meant a judgment creditor 
 with an execution against the mortgager.* A purchaser or subse- 
 quent mortgagee in good faith is one who purchases, or takes a 
 mortgage for a fresh consideration, and without notice of the original 
 mortgage.' It is not sufficient that it is taken for a precedent debt.'" 
 If a personal mortgage is not filed till after an execution is issued, it 
 is void as against the officer holding the execution, although the 
 mortgage is filed before a levy is made." 
 
 [§ 615a.] The last two sections are based on the general rules of 
 law, and the statutes of New York, and do not cover cases in other 
 states, except as they are like those of New York, and are above 
 
 > 4 Kern, 71. 30 Barb. 4S5. 
 
 35 id. 38. 
 
 '25 "Wend. 396. 17 K Y. 580. 37 
 
 ■•■ 44 Barb. 258. 2 Sand. 299. 
 
 
 Barb. 571. 
 
 » 44 Barb. 258. 
 
 
 • 19 Wend. 514. ?0 id. 17. 3 Kern. 
 
 * 1 Denio, 163. 
 
 
 556. 28 N. Y. 272. 3 Mich. 123. 9 
 
 » 28 N. Y. 585. 23 id. 539. 
 
 
 Iowa, 83. 14 Ohio N. S. 488. 
 
 » 13 Barb. 326. 18 id. 194. 
 
 
 ■» 17 N. Y. 580. 27 id. 581. 17 Barb. 
 
 ' 18 Barb. 194. 1 Daly, 489. 
 
 1 Abb. 
 
 446. 
 
 .8.32. 4 How. Pr. E. 16. 
 
 
 " 40 N. Y. 98. 
 
PLEDGE OE PAWN. ^ 331 
 
 referred to. It is impossible, in a work like this, to go further into 
 detail on this subject. 
 
 § 616. K. pledge or pcmn is the deposit of an article with a creditor 
 for the security of the debt of the pledger. Unlike a mortgage, it 
 confers only a special property on the pledgee, and his right depends 
 entirely upon the possession of the thing pledged. It must be given 
 as a security for a debt or engagement, but it may be for the debt or 
 engagement of the pledger, or of another person, and, unless by 
 special agreement to the contrary, will be regarded as a security for 
 the entire debt of the pledger, and cannot be redeemed by a partial 
 payment.^ -If a mortgage is so pledged, the pledger may afterward 
 assign it, and the assignee may enforce it by a sale of the goods, but 
 subject to the lien of the pledgee.' Property exempt from execution 
 may be pledged.^ One joint owner cannot pledge the joint property 
 for his own debt, although he was in possession of it at the time, and 
 the pledgee did not know of the joint ownership.* 
 
 § 617. As possession and delivery is necessary, nothing of which 
 the pledger cannot give immediate possession can be pledged.^ This 
 possession may, however, be according to the nature of the thing 
 pledged, as by a written transfer of shares in an incorporated com- 
 pany. One may, therefore, pledge money, negotiable instruments, 
 real estate mortgages, bonds, title deeds, choses in action, &c., &c.* 
 And, also, where one has a limited title to anything, he may pledge 
 it to the extent of his title.' And an owner of property may, by 
 special leave, permit any third party to pledge it for a particular 
 purpose.' If promissory notes are pledged, the pledgee may enforce 
 their collection by suit, recovering the whole amount, and being 
 responsible to the pledger for the balance remaining after the pay- 
 ment of the debt secured thereby.' 
 
 §618. Upon failure of 'the condition upon which the pledge is 
 held, the pledgee may sell it and apply the proceeds of the sale in 
 liquidation of his demand, and its interest, if any, and necessary 
 expenses.^" But that sale cannot be made until the pledgee has 
 
 'Storf on Con. § 435 (ed. of 1844). on Oon. § 437 (ed. of 1844). Id. on Bail. 
 Id. on Baa. §§ 386, 287, 300, 301, &c. 4 §§ 387, 390, 297. 8 Iowa, 307. 
 Barb. 491. 3 Kent, 577. 1 Robert. 160. ' 2 Tenn B. 376. Stoiy on Con. § 436. 
 30 CaL 373. 34 id. 125. Id. on BaU. § 295. 
 
 s 1 Robert. 160. " Story on Con. § 335 (ed. of 1844). 13 
 
 ' 3 Ohio N. 8. 370. Mass. 105. 
 
 « 24 Iowa, 375. • 5 Bosw. 178. Id. 429. 7 Wis. 492. 
 
 ' Story on Bail. § 397. 8 Iowa, 207. " Story on Bail. § 306, &c. Id. on Oon. 
 
 •3 Kent, 577. 2 Corns. 443. 3 Buls. (ed. of 1844) § 430. 
 306. 16 N. Y. 393. 9 Bosw. 332. Story 
 
332 JOINT TENANTS AND TENANTS IN COMMON. 
 
 called: on the debtor to redeem the pledge in a reasonable time, and 
 given him notice of the time and place of sale, which must be pnblic. 
 If he cannot be found for this purpose, the pledgee may resort to a 
 suit to foreclose the pledge, or, in ISTew York, to the remedy given by 
 the Laws of 1869, of which a copy is given ; ante, page 11.* A single 
 exception to this rule exists in the case of a pledge of commercial 
 paper, which the pledgee cannot sell, but must collect as it becomes 
 due, and apply the avails in paym-ent of his .debt." The parties may 
 agree that the sale may' be at pnblic or private sale without notioe. 
 But, if the agreement is merely that the pledgee may sell at public 
 or private sale, he cannot sell at private sale without making the 
 demand.* The pledgee cannot become the purchaser himself, and so 
 long as' the property remains in his hands, whether before or after 
 forfeiture, it is subject to redemption by the pledger paying the debt 
 and all the expenses incurred in its custody,* which is the only means 
 by which he can regain the property.' The pledgee may, if the use 
 of the pledge be necessary or beneficial, use it to indemnify himself 
 for its expenses, as, if a horse be pledged, he may ride or drive it 
 moderately. If, however, the use be injurious to the pledge he must 
 not use it ; and if it is attended with risk, he is responsible for the 
 injury it may receive." A creditor may assign his claim to a third 
 person, and with it any pledge he holds for its payment.' If he dies 
 before the pledge is redeemed, it passes to his representatives.* A 
 tender of the amount due destroys the lien of the pledge.' When 
 the debt is paid, the pledgee must account for all the profits he has 
 derived from the property.'" 
 
 § 619. Where two persons, together own any personal property, 
 they hold it either as joint tenants or as tenants in common. They 
 are joint tenants when they acquire their title at the same time, by 
 the same oowo&ywnce, each taking the same interest, and each holding 
 by the same tmdvoided possession. The quantity or proportions of 
 the interest may be difibrent, but its Tcvnd must be the same. Thus 
 one may hold one-third and another two-thirds, but one may not hold 
 a right to the use of the property for one year and the other the 
 
 »4Denio,a27. a Coma. 448. 16N.T. ♦ Stoiy on Bail. § 319. 
 
 892. 45 Barb. 560. 10 Boaw. 335. 8 » 84 111. 508. 
 
 Cal. 151. 8 id. 145. 34 id. 135. 9 Wis. • Story on Con. (ed. of 1844), § 432. Id. 
 
 848. 11 Iowa, 410. 26 Ind. 108. on Bail. § 339, &c. 3 Kent, 578. 
 
 ' 16 N. Y. 393. ' 31 N. Y. 75. 
 
 = 27 N. Y. 364. 45 Barb. 560. 10 ' 32 HI. 508. 
 
 Bosw. 335. Story on Bail § 817, 13 ' 1 Robert. 160. 
 
 Wis. 413.- " 29 Cal. 14. 
 
ACTIONS BY JOINT TENANTS, &C. 833 
 
 Eemainder. Tenants in common are tliose wiere the possession is 
 undivided, but' all, or any of tlie other requisites to a joint tenancy- 
 are wanting,^ A letting of a farm on shares creates a tenancy m 
 common in the crops or other products to be divided.^ And so, if 
 the one so taking land employs a third person to thresh the crop for 
 a certain share, all the parties are tenants in common of the crop.' 
 The same rule applies to aleamng, in the same maniier, of any other 
 property, as a mill.* In a joint tenancy on the death of one tenant 
 his right vests in the surviving tenant or tenants. In a tenancy in 
 common it does not, but belongs to the estate of the deceased tenant.' 
 Property held by partners, whether goods or rights in action, is held 
 in joint tenancy.^ ' 
 
 The New York Eevised Statutes provide that estates granted or 
 devised to two or more shall be held to be tenancies in common, 
 unless expressly declared to be joint tenancies.' This does not apply 
 to personal property.^ If bills of sale or personal' mortgages are 
 simultaneously given of the same property, one to each of two 
 vendees, each having notice of the transaction with the owner, they 
 are tenants in common.' If a tree grows on a boundary line, so that 
 the line divides the trunk, it belongs to the adjoining proprietors as 
 tenants in common. But if the trunk of the tree is on one side of 
 tiie line, it is the property of him on whose side it is, though the 
 roots extend to the other side." 
 
 § 620. In joint tenancies and tenancies in common, each tenant is 
 entitled to the possession of the property, and neither of them can 
 dispossess the other so long as it remains undivided ; and, where they 
 own lands, neither can maintain an action against the other for the 
 deeds, leases or other papers in relation to it." And at common law 
 neither could maintain trover against the other for his share of the 
 property unless he had lost, sold or destroyed it,*^ or done some act 
 inconsistent with the nature of the co-tenancy, and which, in the 
 common course of things, would destroy the other's interest in it,^ as 
 
 J 4 Kent, 357. 3 Bl. Com. ISO, &c., " 4 Bradf. 308. 
 
 191, &c., and 39.9. 14 Vend. 865. MS Vis. 843. 
 
 nHm,334. 15 Barb. 595. 44 id. 438. '» 35 N. Y. 123, and refs. 
 
 34 Ala. 167. 17 Gal. 541. 19 id. 617. " 13 John. 484. 7 Wend. 449. 3 Kern. 
 
 • 15 Barb. 333. 173. 1 E. D. Smith, 215. 4 Wis. 554. 
 
 • 1 Wend. 380. " 3 John. 175, 178. 15 id. 179. 7 
 ' 3 Bl. Com. 180 to 187, and 191 to 195, Wend. 354, 357, 449. 9 id. 338. 8 Barb. 
 
 «nd399. 4 Kent, 360. 585. 28 lU. 314. 1 Oregon, 173. 13 
 
 • CoUyer on Part. § 128. 3 Kent, 350. Minn. 82. 
 
 ' Vol 1, p. -737, § 44. 3 id, (Banks' " Cooke, 53. 1 Chip. 343. 
 5thed.)14. , 
 
334 
 
 DIVISIOIT OF JOINT PEOPEBTT. 
 
 where one had taken the animals of another to fatten on shares, and 
 took what he claimed to be his own share, after notifying the other 
 party to come and get his part, and turned the others astray,^ or 
 property owned in common, consisting of shingle mUls, &c., was 
 removed by one co-tenant from the building where it had been used 
 in the manufacture of lumber, and put into a building of his^own, 
 several miles distant, and used in the' 'manufacture of his own 
 lumber.^ But one tenant may dispose of his own interest therein.^ 
 And one of several tenants in common cannot maintain an action 
 against another for the destruction of the common property by the 
 mere negligence of the latter.* If the property owned in common is 
 in its nature severable, in common bulk, and of the same quality, 
 like wheat or other grain, each tenant may sever and appropriate his 
 share, if it can be determined by measurement or weight, without 
 the consent of the others, and sell or destroy it without being liable 
 to them for the conversion of the common property.^ But, in the 
 case of property not so severable, as animals, or other property where 
 the quality and value of one article or portion are different from that 
 of other articles or portions, and each possesses a distinct and obvious 
 identity, the rule is otherwise, and such a severance and appropriation 
 would be a conversion.* 
 
 § 631. The words " personal property," in the Code of Procedure, 
 including " money, goods, chattels, things in action and evidences of 
 debt," '' all actions for taking, detaining or injuring either of them, 
 are within the jurisdiction of a justice of the peace, if the damages 
 claimed do not exceed two hundred dollars,* and the action may be 
 brought against any one who has done it, whether it be one who first 
 unlawfully took the property, or having become possessed of it, unlaw- 
 fully detains it, or one who either ignorantly or knowingly received it 
 from one hot having the right to dispose of it, and detains or injures it.® 
 
 § 622. Where the action is for unlawfully taking the property, and 
 it has not been recovered by the plaintiff, the measure of damages 
 would be its value ; but if it has been received again by the plaintiff, 
 or tendered to him, his damages would be the actual loss the taking 
 had occasioned him." "Where it is for the detention, the value of 
 
 ' 4 Wend. 535. ' Code, § 463. 
 
 » 31 Barb. 569. ' ° Id. § 63. 
 
 »8Cal. 51. 24 Iowa, 375. » Infra, §635. 
 
 * 1 Sand. 304. " 6 Mod. 213. 10 John. 172, 176. 23 
 •15 Barb. 333. 23 id. 568. See 37 How. Wend. 495, 496. 24 N. T. 359. Supra, 
 
 Pr.B. 88. §611. Infra, § 1538 a. 5 Cal. 337. 26 
 
 '15 Barb. 336. 111.477. See 17 Wend. 93. 
 
"WHAT IS A C0NVEE8I0K. 885 
 
 the property detained -would be the measure of- damages, and if this 
 is recovered, in analogy to the rule in the action of trover, on satis- 
 faction of the judgment, the title would vest in the defendant.* As 
 a general rule the value is the market value of the property when 
 wrongfully taken, to which interest may, generally, he added.* 
 
 § 628. "Where an action of trover was brought for, a negotiable 
 promissory note, or bill of exchange, it was necessary for the plaintiff 
 to prove, not only that he was once its owner, and that the defendant 
 had converted it, but he must also show that the defendant came by 
 unfairly, or out of the usual course of trade, without paying, value for 
 it, or under circumstances to induce suspicion that the person trans- 
 ferring it had no right to do it.* This was different from the general 
 rule in trover, which only required the plaintiff to prove his owner- 
 ship and the defendant's conversion, leaving the latter to defend by 
 showing the title out of the plaintiff. The reason of the distinction 
 still exists, and would seem to warrant the same rule where an action 
 is brought for the detention of a bill or note. 
 
 § 624. Where one delivers a note to his creditor to collect it and 
 apply the proceeds upon his debt, the title passes to him and pre- 
 cludes an action for its detention.* And where one has paid his note 
 and the creditor refuses to deliver it, an action at law wUl not lie for 
 its detention, as the note, having been paid, is valueless, and' indeed 
 it may sometimes belong to the creditor as a memorandum.^ 
 
 § 625. In trover any wrongful act, by which the defendant has 
 deprived the plaintiff of his property, or assumes a right to dispose 
 of, or control it in defiance of the plaintiff's rights, whether for his 
 own or another's use, is a conversion.' A wrongful latent is not 
 necessary. It is enough if the owner has been deprived of his pro- 
 perty by some unauthorized act of another.' Accordingly, if a man 
 buys a stolen horse, at public auction, and then sells it, in ignorance 
 of the facts, and in good faith, he is liable to the owner, without a 
 • demand.* A mere negligence, or delay, as of a. forwarder to forward 
 goods, is not enough.' Trover will lie against a trespasser for cutting 
 
 ■ 3 Str. 1078. 6 John. 168. 31 N. T. 31 N. T. 490. 34 id. 468. 3 Code K. 31, 
 
 310. Supra, 583. 33. 3 Mich. 139. 13 id. 338. 33 Ind. 
 
 UDuer,481. 36 Barb. 648. 311. See3Cal. 571. 
 
 = 3 Camp. 5. Ante, §§ 380, 388. ' 31 N. Y. 490. 9 Iowa, 589. 33 Ind. 
 
 * 13 John. 347. 311. 
 
 » 3 John. 433. Bee 3 Sel. 486. ° 33 Ind. 311. 
 
 ' 7 John. 354. 10 id. 173. 15 id. 431. » 38 Barb. 515. 3 Cal. 571. 11 Wis. 
 
 5 Cowen, 333. 9 Wend. 167. 23 id. 463. 180. 
 
a36 
 
 WHAT IS A .CONV;E]JSIOl!f. 
 
 timber, ^ soob %s, it ,is cut.^ It is not ^ conversioB tjjat sm. agent to 
 j,ell at a certasia price sellg for a less sum, feut a mere breaeb of duty.^ 
 But it is a conye?sipn .fpjr aa agent to disregard oj^epg in regard to 
 the disposition of property ; as where a warehousenjan was ordered 
 to send flour forward by a certain railroad, but he shipped it, instead, 
 in a propeller, whereby it wg,s lost.* And so where an agent had 
 A's money in his hands, to be loaned in A's name, but he loaned it 
 in his own name, ^nd for his own usje »nd benefit.* An unlawful 
 tating is of itself a conversion, and so is an unanthprized levy on pro- 
 perty by a sheriff, who has ms.de an inventory and declared his 
 intention to sell j' and even a mere Ipvy by an officer who does not 
 remove the property, and, be/ore action, waives it, ^mouots to a con- 
 version.' But if an offiep^r merely obeys the QonpiEftand of _a writ by 
 taking th« property described in it, as directed, he is not liable in 
 trover.'' Where the property came lawfully into .the defendanfa 
 possession, a ^^le or destruction of it, or apy abuse of the property or 
 use of it beyond the purpose for which he held it of the bailor is an 
 actual conversion. Thus one who hires the plaintiff's horse to go a 
 certain distance, and goes to another place with it, or who without 
 authority or excuse keeps it beyoud the time it~was delivered to him, 
 ip held to have converted it.^ So if a bailee * sets up title in a third 
 person,' as an excuse for not delivering the goods to the bailor.* It is 
 otherwise as to a com^mon can'ier, who may set up the right of the 
 true owner in all cases where he either delivered the property to him 
 on demand, or it has been taken by legal process.-" If a man takes 
 my goods unlawfully, this is, in itself, a conversion, for which an 
 action lies immediately, without a demand. So, if he knowingly 
 buys them of a person unauthorized to sell them.'^ And ,so, if he 
 receive them lawfully, as by delivery, finding, or bailment, but sell, 
 destroy, or otherwise convert them. And where an actual conversion 
 is shown, a demand and refusal are never neoessary.^^ But in all 
 
 ' 4 Gal. 184. 5 Mass. 104 5 Puer, 49. 4 E. D. Smith, 
 
 ' 33 Barb. 346. 397. SMinn. 486. 5 Ind. 146. Id. 330. 
 
 » 14 Wis. 5. 'SiN. Y. 463. 51 Barb. 213. 
 
 « 7 Minn. 477. See 31 N. Y. 490. '° 86 N. Y. 403, and refe. Supra, 
 
 *7Cowen, 735. 23 Wend. 466. 6 Iowa, §126. 
 
 92. " 35 Iowa, 56. 
 
 • 14 "Wend. 301, in connection with 23 •» 3 Wend. 406. 10 id. 389. =21 id. 72. 
 
 id. 495,&c. 5Denio,198. 4 Kern. 278, 2 E. D. Smith, 121, 353. lKeyes,468. 9 
 
 279. Barb. 176. 1 Bosw. 557. 13 Cal. 483. 33 
 
 ' 4 Wis. 803. id. 359. 6 Iowa, 92. 2 id. 580. 9 id. 589. 
 
 ' Supra, § 611. Bac. Ab. Trover, (B.) 33 Ind. 311. 42 111. 34. 4 Nevada, 404. 
 
DEMAND AND EErUSAl) EVIDENCE OE CONTEESION. 337 
 
 other cases, where the plaintiff has lawfully or without wrongful act 
 obtained its possession, the owner is required to demand the property 
 of the defendant, an^ then if he refuses to deliver it, his refusal is 
 evidence of a conversion, or if he promises to deliver and neglects to 
 do so, his neglect is.^ 
 
 There is, however, one distinction to be observed, and that is, 
 where one comes wrongfully into the possession of property, and 
 therefore is liable without a demand, if he passes the same to an 
 innocent person, a demand must be made of such person.^ 
 
 § 626. A^demand and refusal, does not, however, constitute a con- 
 version, but only furnishes evidence of it, which may be repelled 
 by proof showing a good excuse for non-compliance with it.' Thus, 
 if the compliance with the demand was impossible, or impossible 
 at the time, as when the demand was made at a different place 
 from the one where the property was deposited, and the defendant 
 replied that he was willing to deliver it at the proper place;* or 
 if he refused to deliver a stick of timber lying on his land, but 
 at the time declared he laid no claim to it, and did not intermeddle 
 with it;® or if he refused to deliver goods that he had found until 
 it should be shown him that the person demanding them was the 
 owner,* the refusal is no evidence of conversion. In order to make 
 the refasal prima facie evidence, it should appear that the pro-' 
 perty was present at the time the demand was made, or under the 
 undisputed control of the defendant, and that he refused to deliver 
 it. And then the defendant may show the excuse for not complying 
 with the demand.' And where one who had come lawfully into pos- 
 session of the property refused to deliver it, but afterward, before the 
 commencement of the action tendered it to the plaintiff, the action 
 was. defeated.' If the defendant has claimed the ownership'^ and 
 possession, an actual possession is not necessary before he can be 
 charged by the true owner.' 
 
 '6 Mod. 212. 7 John. 254. 10 id. 172. » 2 Mod. 245. 2 Buls. 310. 
 
 9 Wend. 167. 10 id. 389. 3 Hill, 350. ' 1 Esp. 83. 2 Mason, 77, 80, 81. 2 E. 
 3 Corns. 508. 30 Barb. 378. 5 Minn. D. Smith, 157. 23 Wend. 462. J 
 
 486. ' 5 Hill, 455. 32 Barb. 396. 6 id. 436. 
 
 » 1 Keyes, 468. 26 Barb. 167, and refs. 24 id. 528. 30 id. 276. 2 E. D. Smith, 
 
 10 Ind. 375 ; but see 4 Nevada, 494, 474. 14 Cal. 250. 
 
 contra. ° 1 Moore & Scott, 459. This case is 
 
 = 1 Cowen, 332. 1 Coms. 533. 30 Barb, cited with approbation, 5 Bosw. 311 ; 
 
 376. 3 E. D. Smith, 836. 5 Bosw. 393. but see ante, § 625, note 6 ; also §§ 611, 
 
 See 1 Keyes, 321. 43 111. 324. 623, note 10. 
 
 ' 2 Deuio, 643. ' 28 N. Y. 454 . 
 43 
 
338 
 
 INJURY BY NEGLIGENCE. 
 
 § 62Y. Where property -was in possession of partners, a demand of 
 it from one of them and the refusal, was sufficient to maintain an 
 action against all the partners.^ But where it was iq the hands of 
 cO'tenants, not partners, a refusal by one to deliver it, was not evidence 
 of conversion by both? And the refusal of a servant to deliver goods 
 intrusted to him by his master because he has no authority from his 
 master, will not furnish evidence of a conversion by his master, 
 although it appear that his master subsequently approved his conduct.® 
 If in the hands of two persons who have a joint possession thereof, 
 the refusal of one is sufficient.* 
 
 § 628. As we have seen, where any one came lawfully into posses- 
 sion of property, there is no conversion of it until some wrongful 
 act is shown, or there is a refusal or neglect, without excuse, to 
 deliver it to the owner upon demand. And until such conversion, the 
 owner may sell the property in the defendant's possession, sfeid then 
 the purchaser, upon demand and refusal, may bring trover in his own 
 name. And indeed, even after an actual conversion, it seems the 
 owner might have deemed the property stUl in the bailee's hands 
 and demand it, and use the refusal to deliver as evidence of conver- 
 sion.^ 
 
 § 629. A very slight agency or interference is sufficient to render 
 one liable for the conversion. Thus, where the owner of a building, 
 who could not speak English,~was present with his son, who acted as 
 his interpreter, in which building some machinery was set up belong- 
 ing to the plaintiff, and the son forbade the plaintiff to remove the 
 machinery, both were held liable for the conveision.* 
 
 § 630. The abolition of the action of trover, in New York, has not 
 varied the rights of parties who might formerly resort to it for r'elief. 
 The Code of Procedure provides that " all rights of action given or 
 secured by existing laws, may be prosecuted in the manner provided'" 
 by it, and the provision extending to eveiy case which was remediable 
 by the action, 9.II of them will be comprehended within the expression 
 "taking or detaining" personal property. 
 
 § 631. In all cases where one either willfully or negligently inflicts 
 an injury upon the property of another, or where it is injured in con- 
 sequence of a wrongful or negligent act of another, the person by 
 whose act or negligence it is occasioned is liable in damages. In the 
 
 '34"Wend. 169, 178. 4 Hill, 15. 'Infta,§742. 8 Corns. 298. S Kern. 623. 
 
 'UCowen, 822. 4 Hill, 13. 38 N. Y. 206. ^ 
 
 » 5 Hill, 455. 40Barb. 638i '5 061110,527. 
 
 < 3 E. D. Smith, 555. ' Code of Procedure, § 468. 
 
CONTEIBTTTOHY NEGLIGSNOE. 339 
 
 case of dh-ecl acts, the liability extends to all who liave contributed 
 to the injury, and. in the case of consequential injuries, to all parties 
 or their servants or agents whose negligence has occasioned them. 
 The extent of one's liability for the consequences of a wrongful act 
 is illustrated in a case where a defendant, with a deadly weapon, pur- 
 sued a boy, with whom he had quarreled, into the plaintiff's store, 
 and the boy, to escape him, ran against a wine cask and spilled the 
 wine. It was h«ld that the defendant was liable for the damages.'' 
 
 § 632. The rules governing the rights of parties in these cases, are 
 in most respects identical with those which exist ia relation to inju- 
 ries to the person or to real estate. Thus, where one shoots off a gun, 
 by which the plaintiff's horse is frightened and runs away with his 
 carriage and breaks it, or where his servant^ in a dark night, drives 
 his carriage on the wrong side of the highway, and thereby uninten- 
 tionally runs against and destroys the plaintiff's carriage, he is liable.^ 
 So he is liable where by careless and reckless driving in the highway 
 he frightens a horse, hitched to a buggy, by the roadside, causing him 
 to run away and do damage to the buggy.* 
 
 § 633. Under the rules referred to in the last section, one is liable 
 for injuries done by himself or his servants, or domestic animals, to 
 the plaintiff's property, under the same circumstances which would 
 render him liable for an injury committed by them to the person, and 
 subject to the same exemptions from liability.* But, as in the other 
 case, the plaintiff must not, by his own or his servant's negligence, 
 contribute to it, and if he does, in the slightest degree, he is without 
 remedy except for a willful injury. Where, therefore, the plaintiff's 
 cow was killed by drinking maple syrup, carelessly left by the defend- 
 ant in his uninclosed land, it was held that he could not recover, 
 because it was by his own negligence that the cow was there.^ So," 
 where the defendant dug a pit in a common, and the plaintiff's mare, 
 straying there, fell into it and was kUled, it was held that as the 
 plaintiff had not shown a right to have his mare on the common, the 
 digging of- the pit was not unlawful against him, and no action lay. 
 It would have been otherwise if it had been dug in the highway.* 
 
 ' 4 Denio, 464. ' 1 Cowen, 78. Also same principle, 
 
 »1 Camp. 497. lOBiag. 113. 3 Hall, 151. 4 Corns. 353. 33 Ind. 36. 
 
 ' 16 Ind. 312. • 18 Cal. 351. 
 
 * Ante §§481, &c. 31 Wend. 188. 19 ' Cro. Jac. 158, 9. Rolte's Ab. 88. Co. 
 
 id. 399. 5 Denio, 355. 13 John. 339. 1 Lit. 56, a 
 E. D. Smith, 371. 15 Wis. 598. 
 
340 DEGEEES OF OAJJE KBQtTIEED. 
 
 If there is, a custom to let domestic animals, roam on uninclosed com- 
 mons, it is not negligence to allow a horse so to roam.^ 
 
 § 634. A turnpike company is responsible for accidents to travelers, 
 arising from the want of ordinary care in the construction or preser- 
 yation of a bridge f a railroad company for an injury guflfered in con- 
 sequence of its want of proper care in the transportation of th(? 
 property intrusted to it for carriage, or for an injury to a person cross- 
 ing its track, occasioned by the negligence of its servants,' but not for 
 carelessly running over cattle straying upon its track.* This general 
 subject is fully treated ante §§ 481, &c. In addition to what .is there 
 said, we add the following : The degree of care which a person shall 
 exercise, to avoid injury by another, depends upon the circumstances of 
 each case. One crossing a railroad track, should exercise more care 
 than in crossing an ordinary highway.' On the other hand^ the com- 
 pany must take more care of a sick passenger, or an aged one, or a 
 child, than of one in health and under no disability.* It is not impru- 
 dent for a person to act upon the presumption that another, in his con- 
 duct will act in accordance with the rights and duties _of both, even 
 though such other has once conducted himself in a contrary manner.'' 
 While a common carrier, ordinarily, is not liable for an injury caused 
 by the act of God, yet, if he has departed from the line of his duty, 
 and in consequence of that fault, property is injured by an act of God 
 which would not otherwise have produced the injury, he is liable.' 
 As in said anie § 37a, a railroad company may make a contract with 
 a passenger carried on its road, gratuitously, for even the gross negli- 
 gence of its agents and servants.' And this rule is probably the same 
 in any ease where the passenger assumes the risk, in consideration of 
 any reduction in the rate of fare.'" The same rule applies, in New 
 • York, to contracts for the transportation of goods, though not in 
 some of the other states.']; A person who obtrudes himself upon a 
 locomotive or cars, cannot recover if he sustains injuj-y.'* 
 
 [§ 634a.J As has been seen, a very rigid rule is held against rail- 
 roads as common carriers.'' In regard to stage coaches, as the danger 
 to be apprehended of inflicting injury upon others by them is less 
 
 iiaCal. 535. 'SOlir. Y.564. 
 
 » 6 John. 90. * See also 43 Barb. 105, &c. 
 
 » 5 Barb. 837. " 25 N. Y. 443. 24 id. 181. Id. 232. 
 
 * 5 Denio, 255. 43 Barb. 102. 
 
 " 29 N. Y. 815. " 43 Barb. 102. Ante, § 106a. 
 
 "SGN.Y. 39. 26 lU. 255. "22IU.638. 
 
 ' 29 N. Y. 383. " Ante, § 105, sub. 8. 
 
EIGHTS OB' O'WHEE OF PEOPEETT. 341 
 
 thati by railroad trains, the rule is somewhat relaxed.* It is accord- 
 ingly held that their proprietors are not bound to use the greatest 
 precautions of which the human mind is capable, but must use the 
 highest practicable degree of care and diligence under the circum- 
 stances of the case.'* Injuries caused by a drunken driver may be 
 recovered for against them, and exemplary damages allowed.' 
 
 ' § 635. In the ease of a collision of canal boats or vessels upon a 
 navigable river, if both parties are in fault neither can maintain an 
 action for damages. If the collision is owing in part to negligence 
 on the part of the plaintiff, a recovery cannot be had without show- 
 ing a gross negligence on the part of the defendant, amounting to a 
 wantod disregard of the other's rights.* Thus where a boat lying in 
 the canal near a loct, was run against and sunk by another approach- 
 ing it at a time when there was not sufficient water to permit the 
 latter to pass, although other boats had passed, it was held that her 
 captain was bound to know that an attempt to pass was hazardous, 
 and to act with necessary caution in approaching it.^ So where the 
 plaintiff's barge was run down by another vessel, if it appear that 
 the accident happened from circumstances which persons of compe- 
 tent skill could not guard against, or if the barge had been so placed, 
 that persons using ordinary care would have run into it, or if but 
 from some want of care of the plaintiff's servants the injury would 
 not have occurred, the plaintiff cannot recover.* Where a collision 
 takes place between a vessel sailing on a wind and a steamboat, the 
 question whether the officers of the steamboat were guilty of negli- 
 gence in not using the greater power which they possessed of con- 
 trolling their vessel was held to be the governing one.' 
 
 § 636. Each person has a right to the use and disposition of his 
 own property in a reasonable manner, but he is bound so to use it as 
 not to injure his neighbors. For example, he may keep fire in his 
 own house or burn over his fallow ground, but if he or his servants 
 so carelessly keep fire in his house that it burns down and communi- 
 cates the fire to his neighbor's which is also destroyed, or if he or his 
 servant sets fire to his fallow in a dangerous, or dry or windy time, 
 or does not take proper care of it, and it spreads and burns his neigh- 
 
 > 20 N. Y. 75 and refe. See 3 Kern. * 19 Wend. 399. See, as to this general 
 435. 3 id. 9. subject, ante § 483. 
 
 » 33 111. 357. 4 Iowa, 547. ' 8 Wend. 469. 
 
 « 4 Greene (Iowa) 555. ° 4 Car. & P. 106. 
 
 ' 3 Wend. 453. 
 
342 V DAMAGE TO OKBS ANZMALS. ^ 
 
 bor's barn or crop, he is liable for tbe injury.' But if tbe fire brote 
 out without his neglect, he is not responsible,^ as where one sets fire 
 to log heaps on his own premises, and the wind rises, carrying the 
 fire, without negligence on his part, on to those adjoining, where 
 buildings and their contents are destroyed ;* and so, if a person who 
 has a right to go into a chamber does so with a lighted candle, and 
 sets it on fire without being guilty of any wrong or negligence, he is 
 not liable.* For the sapae reasoti, and under the general rule stated 
 at the commencement of this section, the sirnply turning one's own 
 sheep, having an infectious disease, into his own lot, which adjoins 
 the lot of another occupied by sheepj will not render him liable to 
 such adjoining owner for damages sustamed in consequence of the 
 disease having been communicated to his ^eep.* 
 
 § 637. The case of a bailee abusing hia trust in such a manner aa 
 to render him liable for the taking or detention of the property 
 bailed to him has been refeired to.° Where a bailee commits any 
 wrongful act toward the property, the owner is not confined to his 
 remedy upon the contract of bailment but may bring his action for 
 the wrongful act or negligence. Thus, where one deposited his tools 
 in another's house, and they were detained by the bailee for two 
 months after request, by which means the bailor lost their use, he 
 may maintain an action for theto.' So where he improperly use the 
 thing bailed,' or uses it in a manner contrary to the agreement under 
 which it was bailed ; as when a person hires a horse to go a certain 
 distance, and goes beyond it.' 
 
 § 638. Although, in general, they have no fixed or genra-al market 
 value, a man has such an ownership in a dog, cat or any wild animal 
 which he has acquired a property in by possession, that he may 
 recover damages for any injury to it.'" Thus, if the defendant set 
 traps baited with flesh in his own ground so near where the plaintiff's 
 dogs are kept, or where they pass upon the highway, that without 
 trespassing upon his land, they must probably be attracted by the 
 scent into the traps and be injured, an action will lie." Any one, 
 
 1 Comyn's R. 33. 8 John. 421. 35 N. ' Ante §§ 101 to 107. 
 
 346. 33 Barb. 620. 8 Wis. 255. '16 Ark. ' BuUer's N. P. 78. 
 308. 4 Iowa, 506. 1 id. 108. 3 id. 81. » 16 John. 76. Rolle'sAb.5. Lev. 224. 
 
 » 1 Bl. Com. 431. 1 Noy's Max. c. 44. Cro. Eliz. 219. 
 8 John. 431-2. "' ' 5 Mass. 104. 
 
 • 44 Barb. 424. " Ante, § 563. 8 Term R. 37. 3 Bl. 
 
 'S7 Barb. 15. Com. 153. 62 Barb. 15. 
 
 ° 41 Barb. 829. "9 East, 277. 
 
HOW OWlfER TO USE HIS ANIMALS. 343 
 
 however, may kill a ferocious and dangerous animal whicli is at 
 large and a terror to the neighborhood/ or one which is in the 
 habit of howling around his house at night so as to be a nuisance to 
 his family, if the owner,* after a reasonable notice, will not take care 
 of it.* He may also 'kill a dog found chasing a fowl, or Tiseful or 
 reclaimed animal if necessary to preserve it, even if the animal 
 pursued do not belong to him ; and it is a question of fact for the 
 justice or jury to decide whether the killing was of necessity.* But 
 these rules are not appliqable to the case of one dog attacking another, 
 where no action can be maintained even if one is killed, unless it is 
 shown that the one that was injured was not in the wrong,* or that 
 the one that made the attack has the vicious habit of attacking and 
 biting other dogs, without being incited to do so, and that to his 
 owner's knowledge.^ A man may drive from his fields an animal 
 trespassing thereon, by any of the ordinary means to which a pnident 
 man may resort. He may use a dog for the purpose of driving off" 
 cattle, and is not liable for any injury thereby occasioned, unless there 
 is something in the size, character and habits of the dog, or in the 
 mode of setting him on or pursuing, which negatives the idea of 
 ordinary prudence.* He must not set a fierce mastiff upon the 
 animal or animals when an inoffensive cur would suffice." He may 
 turn them out of his lot ; but if he also then drives them so far away 
 that one strays away and is lost, he would be liable.' So one may 
 not poison, or otherwise kill geese or other domestic animals that he 
 finds trespassing upon him.' If one turns cattle out of his inclosure 
 on to a pubKc common, he is not liable for their starvation if their 
 owner was notified by any one to take care of them.^" 
 
 § 639. It is provided by statute in Wew York that " any person 
 may kill any dog which he shall see chasing, worrying or wounding 
 any sheep unless the same shall be dorle by the direction or permission 
 of the owner of the sheep or his servant," and that " the owner or 
 possessor of every dog to whom notice shall be given of any injury 
 done by his dog to any sheep, or of his dog having chased or worried 
 
 > 13 Wend, 312. 4 Cowmy 351. 21 ' 23 Barb. 324. 
 
 "Wend. 407. 17 Barb. 565. 31 Conn. 121. " 7 Mich. 158. 23 Vt. 336. 4 Bun. 
 
 24 How. Pr. R. 481, 484. 15 Abbott, 167, 3994 33 Mo. 138. 
 
 173 ' 6 Blackf. 258. 9 Ind. 399. 
 
 ' 23 Wend. 354. 23 Barb. 834. 31 Conn. ° 16 Ind. 414. 
 
 131 • 2 E. D. Smith, 90. 
 
 « 9 John. 233. '« 32 CaL 205. 
 
 * 23 Barb. 506. 
 
3M mjUEIES BY DOGS. 
 
 any sheep shall, within forty-eight hours after such notice cause such 
 dog to be killed : for every neglect so to do he shall forfeit two dollars 
 and fifty cents, and the further sum of one dollar and twenty-five cents 
 for every forty-eight hours thereafter until <such dog shall be killed, 
 ualess it shall satisfactorily ajjpear to the coiAt before which a suit 
 shall be brought for the recovery of the said penalties, that it was 
 not in the power of such owner or possessor to kill sxjfih dog.^ i 
 
 § 640. It is also provided by the same statute that " if any dog 
 shall attack any person peaceably traveling on any highway, or 
 any horse in a, carriage or upon which any person shall be mounted, 
 and complaint thereof be made to a justice of the peace, such justice 
 shall inquire into the complaint, and if satisfied of its truth and that 
 such dog is dangerous, he shall order the pwner or possessor of. such 
 dog to kill hina immediately ;" and for a neglect to kill him within 
 forty-eight hours after receiving the order he shall forfeit the sum of 
 two dollars and fifty cents, and the sum of one dollar and twenty-five 
 cents for every forty-eight hours thereafter until the dog be killed.' 
 The penalties in both cases provided by the statute are to be prosecuted 
 for by the Supervisor. 
 
 § 641. It was stated in a former part of this work that, generally, 
 one is not liable for injuries committed by domestic animals, unless 
 he is shown to have had notice of their having been accustomed to do 
 mischief.' The New York statute, however, excepts from this rule 
 injuries committed by dogs upon sheep or lambs. The owner or 
 possessor of any dog that shall " kill or wovmd " a sheep or lamb is 
 made liable without proving any notice tl^at the dog was mischievous 
 or disposed to Mil sheep.* A similar statute in Ohio is construed in 
 the same manner.' It is held, however, that the statute does not 
 extend to a case where a dog merely chases and worries sheep, if the 
 master did not know that he was accustomed to do so. The common 
 law rule prevails in such a case.* Under the statute just referred to, 
 the owner of the dog is liable for the full value of the sheep if they 
 are wounded, even if they do not 'die of the wound.' In case of an 
 injury, the owner " may apply to any two fence viewers of the town, 
 who shall inquire into the matter and view the sheep injured or killed 
 and may examine witnesses in relation thereto, for which purpose 
 
 ' 1 R. S. 705, §§ 15, 16. 2 id. (Banks' 'IRS. 704, § 9. 2 id. (Baoiks' 5th ed.) 
 
 5th ed.) 976. 975. 
 
 ' 1 R. S. 706, §§ 17, 18. 3 Id. (Banks' 5th '13 Ohio N. S. 485. 
 ed.)976. 'IDenio, 495. 49 Barb. 145. 
 
 = Ante, § 494 to § 496. ' 49 Barb. 145. 
 
INJUBIE3 BY SEVERAL ANIMALS. 345 
 
 either of them shall have povrer to administer oaths. If they are 
 satisfied that the same were kiUed or hurt only by dogs, and in no 
 other way, they shall certify such fact, the number of the sheep killed 
 or hurt and the amount of the damages sustained thereby by the 
 owner, together with the value of the sheep hurt or killed," which 
 "certificate shall be presumptive evidence of the facts therein 
 contained in any suit that may be brought by. the party injured 
 against the owner or possessor of any dog, if it shall appear on the 
 trial of such suit that due notice was given to the owner of the dog 
 of the intended application to the fence viewers." ^ It will be observed 
 that the inquiry of the fence viewers is not directed to the ownership 
 of the dogs by which the injury was committed. The plaintiff in 
 making his claim must prove the killing or injuring of the sheep by 
 the defendant's dogs, and then the certificate furnishes presumptive 
 evidence " that the sheep were killed or hurt only by dogs, and in no 
 other way, and of the amount of damages sustained, together with the 
 value of the sheep hurt or killed." This application to the fence 
 ^■iewers is cumulative, the owner of the sheep having the right to 
 bring his action without applying to them to inquire into the matter.' 
 In "Vy^isconsin, under their statute (chap. 48, E. S., and chap. 176, Laws 
 of 1860), the owner of sheep killed by dogs has two remedies : he may 
 make his claim against the town, or against the owner of the dog, 
 and he may elect which he will pursue ; having chosen one of these 
 remedies he cannot afterward pursue the other.* 
 
 § 642. "Where two dogs, owned by different persons, attack and 
 injure sheep in a flock, each person is answerable only for the injury 
 which his dog does to the sheep, a joint action not being sustainable.* 
 The same rule applies where cows belonging to several owners tres- 
 pass upon another, doing damage.' In the absence of all proof, the 
 inference is, that the animals did equal damage f but when two dogs, 
 of different sizes, kill sheep, in the dark, the jury, in the absence of 
 other proof, have the right to determine that the biggest dog did the 
 mdst of the injury.'' Where the defendant's hired laborer has a dog, 
 which follows his master to the defendant's premises during the day 
 time, but returns to his master's house at night, he is not to be deemed 
 
 • 1 E. S. 704, §§ 10, 11. 3 id. (Banks' ' 17 Wend. 563. 1 Denio, 495. 9 Ind, 
 5th ed.) 975. 73. 14 id. 817. J30 Pick. 479. 
 
 ' 31 ,Barb. 333. ' 20 Barb. 479. 
 
 ^ 16 Wis. 566, • 30 Barb 479. 30 Pick. 479. 
 
 ' 35 Barb. 303. 
 44 
 
346 KILLING ANIMALS THAT ARE TEESPASSEES. 
 
 the owner or possessor of the dog under the provision of a New York 
 statute declaring "Every person in possession of any dog, or who 
 shall suffer any dog to remain about his house for the space of twenty 
 days * * * previous to any injury, chasing or worrying of sheep, 
 or any attack made l)y a dog, shall be deemed the owner .^ When, 
 however, one harbors a vicious dog about his premises, or allows it to 
 resort to them, although he does not own it, it is sufficient to render 
 him responsible for any mischief he does ; and so of other animals.' 
 With the exceptions mentioned in the preceding sections, no one 
 is justified in killing a dog, even while he is in the act of chasing or 
 worrying cattle, fowls, &c., unless it can 'be shown that he could not 
 otherwise be separated from them.' The fact should be pleaded in 
 the answer, as a defense, and the question will then be one of fact, 
 whether the circumstances of the case rendered it necessary to kill 
 the dog to preserve the animal attacked by it. And where a plea 
 simply alleged that the plaintiff's dog fell upon and bit the defend- 
 ant's dog, wherefore, in defense of his own . dog, he killed him, it was 
 adjudged bad, for the reason that the defendant did not also allege 
 that he could not otherwise save his own dog.* 
 
 § 643. But where, on a trial, it appeared that a dog, at the time he 
 was killed, was running off with defendant's fowl in his mouth, and 
 was called after to give it up, a verdict in favor of the defendant was 
 sustained by an appellate court.' A notice, posted upon one's grounds, 
 that dogs trespassing upon them would be shot, does not justify their 
 owner in shooting the plaintiff 's dog trespassing there.* 
 
 § 644. Where an action is brought against one for killing the 
 plaintiff's dog, and the defendant justifies the killing by pleading in 
 his answer that the dog was accustomed to attack and bite mankind, 
 or that he was ferocious and dangerous, these allegations are material 
 facts, and, if proved, the plaintiff may call witnesses to controvert 
 them and show the general quietness and good temper of the dog.' 
 
 § 645. Whenever one has been injured by means of any imposition, 
 knavery, fraud, willful misrepresentation or concealment in the sale, 
 purchase or exchange of personal property, the fraud avoids it," and 
 notwithstanding the contract of sale may have been made in writing, 
 
 ' B. S. 706, § 20. 3 id. (Banks' 5th ed.) ' 1 Lev. 216. 
 
 976. lDenio,495. ' 9 Jolin. 233. 
 
 ' 17 Wend. 496. Ante, § 540. 5 Car. " 2 Marsh. 584. 
 
 and P. 1. 10 Ind. 351. ' 1 Car. and P. 104. 
 
 =■ 4 Cowen, 351. lSaund.84. 1 Camp. » 3 Kent, 482. Ante,' § 76. 
 41. 4 Car. and P. 568. 
 
 
WANT OF JTJEISDICTIOIT. 347 
 
 or under seal, tlie plaintiff may bring his action for his damages and 
 give parol evidence of the fraixdulent practices.'^ Fraud is a crime ; 
 and whenever a court or jury are convinced of its existence, to the 
 injury of another, they may, and should give damages as in other ' 
 actions for wrongs involving moral guilt, with a liberal and unsparing 
 hand, both to compensate the plaintiff for his extraordinary trouble 
 in vindicating himself against the injury, and to furnish a moral 
 lesson to the country by the punishment of the defendant.* 
 
 § 646. In cases where one has been injured by a fraud in a sale or 
 purchase, it is generally better to bring an action for the fraud than 
 upon the contract. If the action be upon the contract, the person of 
 the defendant, ordinarily, is not liable on execution, while it is for 
 injuries not arising on contract. , 
 
 § 647. lY. Injubies to peesons oe peopeett, aud the taking 
 
 AND detention OF PEESONAL PEOPEETY UNDEE COLOE OF LAW, OE OF 
 
 LEGAL PEOCESS. The cascs arising under this title generally fall 
 within one of the following classes: 1. Where there is a want of 
 jurisdiction in the court or magistrate who issues the process, under 
 color of which the act complained of was committed. 2. "Where, 
 although, the court or liiagistrate has jurisdiction, their acts were 
 void for irregularity. 3. Where the officer, having process to execute, 
 exceeds his authority. 4. Where the officer undertakes the execution 
 of, process which is void upon its face. 
 
 § 648. (1.) Where there is a want of_ jurisdiction. Jurisdiction is a 
 power which a court, judge or other magistrate has, to take cogni- 
 zance of, and decide causes brought before him, according to law, 
 and to carry his sentence into effect.' It is said that all jurisdictions 
 are limited, as to place, persons and things.* This is true, in a cer- 
 tain sense. Thus, the supreme court of New York is limited in its 
 jurisdiction to the territory of the state, to persons within it, or who 
 may be reached by its process, and to things within it ; and, so far as 
 its original jurisdiction is concerned, it is Kmited to remedies in civil, 
 as distinguished from criminal cases. But it is not meant that all 
 jurisdictions are limited to a particular portion of the territory of 
 the state, nor to a particular class of persons, or a certain description 
 of things. 
 
 § 649. Jurisdiction is said to be general where the powers of the 
 
 ' 13 John. 325, 395. ' Bouvier's Law Die. Jurisdiction. 
 
 " Hall's Law Joum. 618, 630. Infra, * Kep. temp. Anne, 104. 
 § 1537a. 
 
348 JTJEISDICTION OF STTBJECT-MATTEE. 
 
 court or judge extend throughout the state, and include the cogni- 
 zance of all actions and of all persons within it. Where their 
 powers are confined to a particular territory, or to a particular class 
 of actions or of persons, the jurisdiction is termed limited or inferior. 
 It is, again subdivided into original, when it is exercised by the court 
 or judge in the first instance, and appellate when it only authorizes 
 a review of the decisions of other courts ; civil, where it relates 
 exclusively to the adjustment of rights between different persons, and 
 criminal where it has cognizance of persons accused of crimes. The 
 New Tort supreme court is, by the constitution, declared a court of 
 general jurisdiction in law and equity.' The county courts, surro- 
 gates' courts and justices' courts, being limited in the subject-matter 
 over which they have jurisdiction and the territory within which 
 they may exercise their functions, are courts of inferior jurisdiction. 
 
 § 650. Courts of inferior jurisdiction cannot go beyond the author- 
 ity conferred upon them by the statute. They can assume no power 
 by implication, but must keep within the powers expressly given 
 them, and if they go beyond them, their acts are void.* Thus, if a 
 court having only civil jurisdiction should try a man for felony,* or a, 
 justice one for murder,'' or if it shduld render a judgment for a sum 
 exceeding its jurisdiction,^ or take cognizance of a suit for less than 
 the amount required to give it jurisdiction,^ or try an assault and 
 battery or slander,' all their acts would be void. In like manner, 
 where the law authorized assessors to lay a tax on residents of the 
 town for certain purposes, and they laid it upon the lands of a non- 
 resident, it was held void.* 
 
 § 651. Within the rule laid down in the last section, it has been 
 held that, where a justice was authorized to issue a warrant against 
 an inhabitant of the same county found traveling on Sunday, and he 
 issued it against one not an inhabitant, his warrant was void ;' where 
 he issued an execution against the body of a person exempt from 
 such process he was a trespasser ;'" where tlie statute gave magistrates 
 power to proceed by warrant against the property of an absconding 
 
 'Const, art. 6, §3. 1 E. S. (Banks' n Conn. 45. 
 
 5th ed.) 61. ' 13 Wend. 404. 
 
 » 1 John. Gas. 238. Id. 20. 19 John. 39. '3 Minn. 86. 
 
 SCowen, 306. 33 How. P. K. 361. 5 Cal. ' 15 John. 493. 
 
 195. 33 id. 318. 34 id. 331. 35 id. 269. ' 13 John. 444. 1 Keni. 563. 15 N. T. 
 
 36 Mo. 65. 20 111. 535. 34 id. 168. 4 316. 11 Mass. 330. 
 
 Greene (Iowa), 391. " 13 Mass. 334, 343. 
 
 = 10 Coke, 76. " 3 John. Cas. 49. 
 
J0EISDIOTIOK OF PEOCESS. 349 
 
 husband for the support of his family, and they proceeded, when in 
 fact the husband had not absconded, their acts were void ; ^ if an 
 army court-martial should arrest and try a citizen, not on military 
 duty, as a spy,^ or a militia court-martial fine one by law exempt 
 from military duty,' or an United States court-martial condemn a 
 militia man not in actual service, but only summoned to go into ser- 
 vice,* their acts are void. In like manner, where an inferior officer 
 was arrested and tried before a court-martial for refusing, on the 
 requisition of his superior officer, to attend a writing school estab- 
 lished in the army, but without competent authority, the judgment 
 was held void on the ground that the arrest and trial were void ; ^ and 
 where the ordinary had no power to grant letters of administration 
 while an executor was living, and the executor being living, but 
 absent, he appointed one ; his act was held void, and that a judgment 
 rendered against such administrator was also void,° for the ordinary 
 had no jurisdiction of the cause, and the court which rendered the 
 judgment, had neither jurisdiction of the person proceeded against, 
 or the property levied upon by virtue of its judgment, and hence all 
 the proceedings were void. 
 
 § 652. In courts of inferior jurisdiction, it is necessary, also, that 
 the court should have jurisdiction of the process, as well as of the 
 subject-matter of the action.' If, therefore, a justice should issue 
 process which he has no authority for issuing, as a warrant to an 
 officer to search aU suspected persons or all suspected places for stolen 
 goods,* or should direct an officer, without process, to arrest a party, 
 to answer the plaintiff, any judgment rendered thereon would be' 
 void ; ' or if a court should act upon process unknown to the laws or 
 which it could not use, its proceedings would be void.^" If, however, 
 the process be void, yet if the defendant appear at its return, and, 
 without objecting to it, joins issue upon the merits, the justice will 
 thereby acquire jurisdiction." And it is held that a summons return- 
 able at a lona-er date than is allowed by the statute in that particular 
 case is not void, and tlie defect is cured by the omission to take the 
 objection.*' 
 
 " 6 Cowen, 234, 337. '1 Conn. 40. 
 
 ' 12 John. 257. ' Hob. 63. 
 
 ' 3 Cranch, 331. " Cowen & Hill's Notes, 1000. 
 
 * 19 John. 7. 20 id. 343. " 2 Hill, 657. 1 Wis. 597. 13 id. 635. 
 
 • 4 Taunt. 66. 5 Cal. 494. 18 111. 29. 18 Ind. 1. 
 " 8 Cranch, 10. ^ " 63 Barb 158. Infra, § 663. 
 
 ' 19 John. 40. 3 Cowen, 2'06. 
 
350 
 
 JUEISDICTIOK OP THE PEESON. 
 
 § 663. It is also necessary that tke process be properly served. It 
 rs a general rule that a party proceeded against must be notified In 
 some legal manner of the proceeding, in order to give the court or 
 magistrate jurisdiction of his person.^ It need not always be per- 
 sonal. The legislature may prescribe the manner of service as it has 
 in suits commenced by attachment ; but it must be ,in compliance 
 ■with the law.' If process be executed by a constable not having 
 authority, it gives the magistrate no jurisdiction, and if he proceed 
 he is liable f and where the statute prescribes the mode of acquiring 
 jurisdiction of the person, it must be complied with, or the subse- 
 quent proceedings are k nullity.* "Where the statute required delin- 
 quents to be summoned to court-martial before fines should be 
 imposed, and one was summoned by leaving a written summons at 
 his place of residence in his absence, and upon the ground of such 
 service the court imposed a fine, the president of the court was held 
 liable to refimd it.^ In another case, where a freeholder could only 
 be sued before a justice of the town where he resided, and the pro- 
 cess was required to be served personally, or by leaving it at his dwell- 
 ing-house or place of abode, the constable return that he served the 
 process by leaving a copy at the defendant's last place of residence in 
 the town, was held to confer no jxirisdiction, and that it was notice 
 to the justice and party of the defendant's non-residence, so as to 
 render them liable for acts done under an execution upon a judg- 
 ment obtained under it ; but the execution being regular upon its 
 face, it protected the constable who served it.* 
 
 § 654. If a' court, whether of limited jurisdiction or not, under- 
 takes to hold cognizance of a cause without having gained jurisdic- 
 tion of the person in the manner required by law, the whole would 
 be void,' as where one falsely .pretended to have authority to confess 
 judgment for another without process.' A judgment cannot be 
 entered on confession unless the defaidant is" brought into court by 
 process, or in pursuance of the provisions of the statute.' Where a 
 judgment was entered in pursuance of an authority given to the 
 justice by the defendant at a casual meeting in the street, and an 
 exebution was levied upon his property and sold, it was held that the 
 whole was void and the sale gave no title to the purchaser.^" 
 
 ' 3 Seld. 431. ° 1 Wright (Ohio) 709. 
 
 = 6 Abbott, 162. 34 Barb. 95. 33 id. 604. '19 John. 41. 41 Barb. 103. eCal.318. 
 
 * 7 Cowen, 369. ' 15 John. 344. 
 
 * 1 Hill, 130. Note 3, supra; 1 Denio, " 3 R. S. 345, § 114. 3 id. (Banlss' 5th 
 593. 17 Abbott, 166. 3 Iowa, 114. ed.) 443, § 105. Code, § 53, subd. 8. 
 
 ' 7 John. 96. " 8 Wend. 569. 15 John. 476. 6 id. 136. 
 
JtrEISDICriON OF THE PEESON. 351 
 
 § 655. K a justice should assume to act beyond the limits of his 
 territorial jurisdiction, by issuing process, or doing any other official 
 act without his county, or trying a civil cause in any other town 
 than the one in which he was elected, in cases not specially provided 
 for by law,^ or if he should entertain an action when he is prohibited 
 from acting in any case, his acts would be void.^ These illustrations 
 are, of course, applicable only to the state of New York, and such 
 others as have similar statutes. The general rule is believed to be 
 of universal application. 
 
 § 656. In each of these cases where the proceedings of a court of 
 inferior jurisdiction are void for want of jurisdiction, the conse- 
 quence of the judgment being void does not extend merely to pro- 
 tect the defendant from it. It is as if there had been no action, and 
 the plaintifi' is not baiTed by it from bringing another action for the 
 same cause before a competent tribunal ; as where an action for an 
 assault and battery had been brought before a justice and tried upon 
 the merits, and a judgment was rendered for the defendant, the 
 judgment was held no bar to a subsequent action for the same 
 cause.* And where an appeal is brought upon a judgment rendered 
 by a justice in an action over the subject-matter of which he has no 
 jurisdiction, the appellate court should refuse to entertain the action 
 and not render its judgment upon it.^ 
 
 § 657. Judgments and proceedings of courts where they have no 
 jurisdiction, may be assailed in various ways. In some cases they 
 are for certain purposes regarded as valid until reversed or vacated ; 
 as where, although they may be reversed or vacated by an appellate 
 court, they are, while they remain, regnirded as sufficient to protect a 
 person acting under them, or to secure a right or title to property 
 founded upon them. The questions which may arise in relation to 
 them in an appellate court can rarely be of any practical interest to 
 a justice of the peace.' Those only, therefore, which may be liti- 
 gated in his court when the validity of such judgments are attacked 
 collaterally, as in another action, and not in a proceeding to reverse 
 or vacate them, are here examined. 
 
 § 658. In most cases, questions as to the validity of such judgments 
 arise in actions against the party, or the justice, or the officer executing 
 the process of the court, at the suit of the individual affected by the 
 
 1 Cro. Car. 213. ' 14 John. 433. 
 
 ' a Caines, 108. 8 John. 409. 13 id. ' 3 HUl, 657. 
 318. 41 Barb. 300. 
 
352 1NJT7EIES COMMITTED TJNDEE OOLOE OF LAW. 
 
 judgment or proceeding whicli he alleges to be void for want of 
 jurisdiction. The rul© is now settled that, where the court has no 
 jurisdiction, the court and party and any other person who has 
 directed the service of the process is liable to the defendant for, all 
 acts done under color of the judgment.^ But a ministerial officer, as 
 a sheriff or constable, is protected in executing the process of ^n 
 inferior tribunal if the subject matter is within its jurisdiction, and 
 'nothing appears upon its face to show a want of jurisdiction in the 
 person or place.^ And it makes no difference if the officer knew it to 
 be void.' The same rule is extended to the collector of a school dis- 
 trict, who has a tax list and warrant issued by the trustees, regular 
 upon its face, and a collector of county or village taxes.* If the 
 process shows on its face that it is irregular,- illegal or void, it will 
 not afford the officer who executes it any protection.^ Although in 
 case of void process, the officer knowing it to be such, may execute 
 it, he is not bound to.^ If, however, there is merely some irregularity 
 in issuing it, which does not affect the jurisdiction, the officer must 
 execute it.' This immunity of the officer as above stated is a rule 
 for his protection merely.* He may defend himself under the process, 
 but he cannot build up a title upon it, so as to maintain an action 
 upon it against third persons. "Where, therefore, a constable, in order 
 to justify a seizure of goods upon a justice's attachment, is obliged to 
 attack a sale by the debtor as fraudulent in respect to creditors, he must 
 produce and prove not only the attachment but the preliminary pro- 
 ceedings under it authorizing it. So, if the seizure is made upon 
 execution, he must prove the judgment upon which it was issiied.' 
 These rules apply to officers only. Any person claiming the benefit 
 of their official acts, must prove the judgment or other authority for 
 the acts." - 
 
 § 659. The party aggrieved by a judgment void for want of juris- 
 diction in the court rendering it, may have his action against all per,- 
 
 » 11 John. 444. 15 id. 153. 38 N. Y. * 7 "Wend. 89, 393. 3 Denio, 88. 3 Corns 
 
 659. 30 111. 391. 11 Wis. 91. 8 Mich. 473. 25 111. 156. 1 Wis. 457. 
 
 587. 2 Nevada, 100. ' 18 Barb. 837. Infra, § 667. . 
 
 = 5 Wend. 170. 1 Seld. 376. 5 id. 208. » 7 Hill, 35. 16 Wend. 563. 48 Barb. 85. 
 
 31 Barb. 313. 4 Mich. 291. 7 Wis. 138. ' 3 Seld. 195, 199. 
 
 14 id. 88. 25111.70,156. Infra, § 666. 5 "34111.558. 
 
 Minn. 897. 7 Ohio N. S.'43, 51. "1 Hill, 118. 5 id. 194. 6 id. 311. 1 
 
 = 24 Wend. 485. 5 Hill, 440. 20 Barb. Hilton, 117. 3 id. 213. 5 Minn. 397. 6 
 
 165. id. 413. 
 
 »5Mmn. 397. 6 id. 412. 
 
PEOCEEDIKGS VOID FOIR WANT OF JtTEIBDICTION. S§3 
 
 sons having knowledge of and participating in tlie action or proceeding.* 
 Thus, if he should be arrested^ or his close entered, or his goods taken 
 by execution upon the judgment, he may recover his damagefe, for the 
 injury, against the magistrate and the party, and his attorney also if 
 he has actively directed the service of the proi3ess, in the same manner 
 as if the act complained of had been committed without color of law. 
 Under the rules relative to the want of jurisdiction, a sheriff who 
 levies on the goods of a stranger to the execution is liable, but if they 
 are so mingled with the goods of the execution debtor as to be undis- 
 tinguishable, a demand for them and which properly distinguishes 
 them from the debtor's property, must be made before the bringing 
 of a suit.' An officer cannot legally take the property described in a 
 writ of replevin when it is neither actually nor constructively in the 
 possession of the party named in the process.' Where a judgment 
 was rendered by a justice against two defendants, when he had 
 obtained jurisdiction over but one of them, and an exeeution which, 
 by its terms, was leviable on the individual property of either, was 
 issued by him and levied on the property of the one who was not 
 bound by the judgment, it was held that the justice was liable there- 
 for, and also the execution plaintiff, he having asked for the execution, 
 participated in the proceedings under it, and taking the proceeds of 
 the sale.* And, in general, when the execution plaintiff buys in the 
 defendant's property to satisfy his debt, he is chargeable with all 
 Irregularities; but a stranger, who buys in good faith, is only change- 
 able if there is a want of jurisdiction, or other substantial defect in 
 the proceedings.^ 
 
 § 660. "Where the tribunal or magistriate has jurisdiction of the 
 person and subject-matter, errors committed in the exercise of the 
 jurisdiction will not vitiate the proceedings. That jurisdiction being 
 established, the court may proceed to almost any length in the exer- 
 cise of its judicial functions without incurring any liability.* And not 
 only is the court protected, but also the party, his attorney, and all 
 persons acting in obedience to the order or judgment of the court.'' 
 Where a plaintiff insisted upon and obtained a judgment against a 
 defendant who had been disehai-ged from imprisonment as an insol- 
 
 ' Ante, § 658. 283. 38 id. 339. 19 HI. 342. 22 id. 100. 
 
 " 13 Cal. 275, 469. 10 Wis. 91. 37 id. 467. 4B id.SOS. 16 "Wis. 398. 20 
 
 ' 14 Ohio N. S. 73. Mo. 22. 6 Oliio N. S. 302. 3 Greene 
 
 * 18 Cal. 397. (Iowa), 584. 14 Iowa, 510. 18 id. 153. 
 
 ' 1 Oregon, 19. 2 Nevada, 100. Infra, § 697. 
 
 »4Denio, 130. 1 Kern. 573. 19 Barb. 'SSandlSaSi 19 Barb. 383. 13id. nS9. 
 45 
 
354 WHEN DECISION AS TO JUEISDIOTION IS CONCLUSIVE. 
 
 vent, and imprisoned him, the plaintiff was protected, for the justice 
 had jurisdiction of both the person and the matter, and any judgment 
 he gave was conclusive until reversed.^ So where a justice has juris- 
 diction to give costs and gives more than the statute authorizes, it is 
 mere error, and the judgment while unreversed protects him for acts 
 done in the way of collecting it.* These rules apply to cases of the 
 determinations by assessors of real estate of questions of residence,* 
 and to apportionments of taxes by the proper officers,* and boards of 
 pilots.^ / 
 
 § 661. Where the jurisdiction of an inferior court depends upon a 
 fact which it is required to ascertain and settle by its decision, its 
 decision is held to be conclusive." "Where such fact is asserted in the 
 repord, a party who contested the merits, without .raising the question 
 of jurisdiction, cannot afterward, in a collateral action, show that the 
 jurisdictional fact did not exist.' The consequences of an ascertained 
 jurisdictional defect in avoiding a judgment, are the same whether 
 the court be of general or inferior jurisdiction. The distinction lies 
 in the mode of reaching the defect. In regard to courts of general 
 jurisdiction, the jurisdiction is presumed until the contrary appears. 
 In the case of inferior courts, it is never presumed, but must in aU 
 cases be proved.* But when it is proved, the same presumptions 
 obtain as in a court of general jurisdiction.^ 
 
 § 662. The rule contained in the last section does not extend to a 
 ease where certain facts are required to be proved to the magistrate 
 in order to give him jurisdiction to proceed, as in a case where a 
 justice, who is authorized to issue an attachment " whenever it shall 
 satisfactorily appear to him " that a debtor has departed the county 
 with intent to defraud creditors, and the proof offered showed only 
 the heUef of the party that such was the fact, issued an attachment, 
 it was held that his proceeding was void and he a trespasser.^" In 
 such a case there must be proof oi facts which may tend to produce 
 a belief in the mind of the justice, and which furnish what is called 
 colorable proof, before he obtains jm-isdiction.'^ But, having that 
 
 ' 5 Wend. 398. 4 Denio, 120. 1 Seld. 497. 38 Barb. 51. 
 
 » 10 Barb. 295. 17 John. 145. Cowen 15 Ind. '895. 
 
 & Hill's Notes, 994. ' 1 Seld. 434. 
 
 ' 24 Barb. 419. 19 id. 22. 8 Den. « 1 Hill, 131. 4 Iowa, 77. 15 Cal. 296. 
 
 117. 17 id. 363. 6 Minn. 412. 18111.292. 
 
 * 21 Barb. 207. ' 7 Iowa, 824. 
 
 ' 6 Cal. 94. ' " 10 Wend. 420. 
 
 ' Cowen & Hill's Notes, 1016 to 1030. " 11 John. 177. 4 Denio, 118. 
 
PE0CEEDING8 VOID FOB lEEEGULAEITT. 355 
 
 proof before Mm, if he errs in his estimate of the evidence furnished 
 him, it is a judicial error for which he is not responsible.^ So if he 
 has authority in certain cases to issue a warrant without oath, and on 
 account of his ignorance of the fact he does so in a wrong case, he 
 will hot be held answerable if he acts in good faith.^ - And wherever 
 he has jurisdiction of the person and the subject-matter, any errors 
 he may make in the exercise of his jurisdiction are judicial errors for 
 which he is not liable. Thus a court having jurisdiction of a criminal 
 case will be protected although it adjudges a matter criminal which 
 is not so and proceeds to punish it.* 
 
 § 663. (2.) Of proceedings void for irregula/rity. An irregularity 
 is either the omission to do something necessary for the due and 
 orderly conducting of an action or legal proceeding, or the doing it in 
 an unseasonable time or in an improper manner.* An error is where 
 the court or magistrate, in the regular course of an action or judicial 
 proceeding, makes a mistake of the law. A justice's court exercising 
 an inferior jurisdiction must pursue strictly the provisions of the 
 statute in its proceedings, and, unless they are observed or waived by 
 the party who has a right to insist upon them, the judgment is 
 irregular and void. If a justice should give judgment against one 
 who is not in court and who has not been served with summons or 
 process to appear before him, he will have acquired no jurisdiction 
 of him, and the judgment will, for this cause, be void.^ And so, if 
 the defendant has been served with a summons to appear on a certain 
 day or at a certain hour, and previous to the time specified in the 
 summons the justice calls the action, hears the proof and renders a 
 judgment, the judgment will be void.^ The same result would follow 
 if the justice should issue an attachment without the proof required. 
 Here he would act without jurisdiction. And so would he, and his 
 proceedings would be void, should he omit to take from the plaintiff 
 in the action the bond required by the ITew York statute.'' But if 
 the action were well commenced, and the proceedings were all 
 regular, and the justice should give judgment upon insufiicient proof, 
 or by the admission of improper testimony, and upon this testimony 
 should give judgment in his favor, or commit irregularities, the 
 
 '4Denio,118. 18N.Y.355. 34 Barb. « Tidd, 434. 
 144. 45 id. 894. " 15 Jol™- 244. Ante, § 654. 
 
 " 6 Wend. 597. \ ' 41 Barb. 103. 
 
 ' 1 Mill. Lou. 131. 3 LUtw. 1561, 1563. ' 3 R. S. 330, § 39. 3 id. (Banks' 5th 
 
 1 Pet. C. C. 30, 39. 3 id. 193. 18 Iowa, ed.) 431, § 37. 4 Coma. 354. 14 Barb.' 
 
 153. 96. 
 
356 
 
 PE0CEEDIN6S TOtD OE VOIDAELE. 
 
 judgment would be efrondous, and not tqMj but simply liable to be 
 reversed by an appellate court.^ In like manner where tbe Statute 
 limits the amount of the plaintiff's costs to five dollars, and he 
 rienders judgment for a largei- sumj it is error to be corrected, and not 
 an excess of jurisdiction or irregularity which would render Ae judg- 
 ment voidi* But where thie statute prescribes a partictilar time for 
 the return of an execution, and h6 issues an execution returnable in a 
 shorter time, it is iireguliar, and as the irregularity is apparent Upon 
 its face the ofiicer executing it would jiot be protected by it.^ But 
 it is held in one case that if the execution is returnable in a longer 
 than the statutory time, whereby the plaintiff loses his debt, he can- 
 not recover judgment against tl^e justice who issued it for hife 
 damages, because in issuing the execution he was acting still as a 
 judicial officer,* a rule which has not been applied in this and other 
 
 § Q6i. Whei'e there has been an irregularity in a justice's court, all 
 the proceedings subsequent to it are void, unless the irregularity is 
 waived by the party who has the right to take advantage of it ; ° and 
 the party committing the in-egularity and all others acting in his 
 behalf, excepting an officer executing process issued thereafter which 
 is good upon its face, are liable for every subsequent act.* "Where the 
 irregularity is in the proceedings of a court of record, tlie subsequent 
 proceedings are voidable and no advantage can be taken of the 
 irregularity until they are Set aside by the court ; ibut, when set 
 aside, the aggrieved party may maintain an action for any act per- 
 formed by his opponent Subsequent to the irregularity^ The officer, 
 however, would not be liable.* In courts of record the judges are not 
 liable for irregularitiesj the process being prepared by the party or 
 his attorney. 
 
 § 665. Justices' courts in New Tork possess the same general 
 powers in amending their proceedings that courts of record have.' 
 Where a justice issued an execution upon a judgment, and by mistake 
 directed the eonsta,ble to levy a different sum from the one recovered 
 in the judgment, and an action was brought against him for a levy 
 
 ' 23 Barb. 313. 1 Seld. 631. ' 3 Caines, 367. 28 N. Y. 659. 84 
 
 » 17 John. 145. < Bai'b. 149, &c. 
 
 •Ante, §653. 5 Wend. 276. & id. 338. • 11 Wend. 31. 28 N. Y. 664. 
 
 ' 30 Mo. 430. • 3 R. S. 235, § 1. 424, § 1, &c. 3 id. 
 
 - ' 10 Oliio N. S. 621. 18 loWa, 247. 1 (Banks' 5th ed.) 426. Id. 731 10 Wend. 
 
 Kansas, 365. 314. 1 Barb. 552. 3 E. D. Smith, 
 
 » Esp. Dig. vol. 1, pt. a, 275. Antie, 178. 
 §658. 
 
PEOCESS VOID, OE KOT, ON ITS FACE. 357 
 
 thereon, the supreme court held that it would not, for the variance, 
 treat it as a case where the execution issued without authority, and 
 9,llowed the mistake to he shown, and treated the recital as true.^ 
 There the execution might have heen amended before its return, 
 although after its return it could not." A summons, however, is 
 amendable after its return, as where one of the plaintiffs whose name 
 was Jasper was named in the summons Joseph.' Further decisions 
 in rega,r<i to amendments iu justices' courts are foiind, infra,, sec- 
 tions 850, 1661. 
 
 § 666, Where oncers h9.vo acted under process, regular upon its 
 fiice, but which has been issued upon an irregular judgment, the same 
 rule prevails, as in the case of process upon judgments void for want 
 of jurisdiction, of which we treated {ante section 658), for convenience, 
 including in our references some cases of irregularity. In these cases, 
 as in those, tlie rule is that when process is regular upon its face and has 
 nothing to show that the court or magistrate had no jurisdiction, or 
 that it was irregularly issued, or issued upon a void judgment, it fur- 
 nishes a perfect protection to the officer to whom it is directed.* But 
 where upon its face there is evidence that it is irregular, or issued 
 without jurisdiction, or otherwise void, it is no protection.^ The rule 
 is that process valid upon its face will justify the officer, but that he 
 is liable for any act done under process void on its face. And if it is 
 void upon its face, by reason of commanding the officer to execute it 
 in an illegal manner, it will not protect him though he execute it in 
 a legal manner,' 
 
 § 667. Where a court or magistrate has no jurisdiction of the pro- 
 cess, and it appears by the process, both the officer who issues it and 
 he who serves it becomes a wrong-doer.'' Thus, if he issues a warrant 
 which on its face shows a case where a summons only can issue, it will 
 protect neither the magistrate or the officer executing it. In like 
 manner, if an officer serves process not directed to him, as where a 
 
 warrant directed " To any constable of ," was delivered to an 
 
 officer to execute, it is no protection from the consequences of his acts 
 in serving it,* and a commitment upon a conviction for petit larceny 
 directed in the same manner and delivered in court to the constable 
 who had the prisoner in his custody was held a nullity.' So where a 
 
 ? 4 "Wend. 568, 585. » 8 Minn. 477. Infra, | 851. 
 
 « 5 Wend. 276. ' 18 Wend. 607. 
 
 • 10 Wend. 213. ' Supra, §§ 658, 666. 
 
 ♦ 5 Wend. 170. 6 id. 367. 12 id 496. ■• Add. 376. 
 
 24 id 485. 5 Hill 440. 2 Corns. 473. • MS. case of i?VKer v. BmHiswcZ, decided 
 
 by the supreme court, 5t}i dist. • 
 
358 AS TO SEARCH -WABEANTS. 
 
 New York magistrate issues a searcli warrant directing the officer to 
 whom it is addressed to search all suspected places, the officer is liable 
 for executing it, and he would be liable if it omits to specify the place 
 to be searched or the goods to be searched for. It is no excuse for 
 the officer that he was ignorant that the magistrate had no authority 
 to issue such a process. His ignorance would be of the law, which 
 does not excuse.^ 
 
 § 668. The power to issue a search warrant in New York is given 
 by statute. It is provided in the bill of rights of the constitution of 
 the United States that "The right of the people to be secure in their 
 persons, houses, papers and eflfects against nnreasonable searches and 
 seizures ought not to be violated ; and no warrants can issue but 
 upon probable cause supported by oath or affirmation and particularly 
 describing the place to be searched and the persons or things to be 
 seized." * The New York statute passed in conformity with this pro- 
 vision is as follows : " Upon complaint being made on oath to siaj 
 officer or magistrate authorized to issue warrants for the apprehension 
 of offenders, that any personal property has been stolen or embezzled, 
 and that the complainant suspects that such property is concealed in 
 any particular house or plabe, if such magistrate be satisfied that there 
 is reasonable grouad for such suspicion, he shall issue a warrant to 
 search for such property. Such warrant shall be directed to the sheriff, 
 of the county, or any constable or marshal of the town or city, and shall 
 command him to. search the place where such property is suspected to 
 be concealed, in the day-time (which place shaU be particularly 
 designated, and the property shall be particularly described in such 
 warrant), and to bring such property before the magistrate issuing the 
 warrant. If there be positive proof that any property stolen or 
 embezzled is concealed in any particular house or place, the warrant 
 may authorize the searching of such house or place iq the night-time. 
 Every such warrant shall be executed by a public officer, and not by 
 any private citizen." ' It is necessary to the regularity of the proceed- 
 ing that each of the provisions of the statute be observed. If they 
 are, neither the magistrate or officer will be liable, although none of 
 the goods supposed embezzled or stolen are found. It is, therefore, 
 advisable to recite the complaint in the warrant, though it is not 
 absolutely necessary. The provision requiring the warrajit to be 
 served by an officer does not preclude him from taking necessary 
 
 '1 Conn. 40. 13 Mass. 386, 289. •■ 3 R S., 746, §§ 25 to 28. Sid. (Banks' 
 
 ' Con. U. B. 4th amendment. 1 R. S. 5th ed.) p. 1040, §§ 33, &c. 
 (anks' 5tti ed.) 18. 
 
AS TO SEAKCH WAEEANTS. 359 
 
 assistance witli liim. It would manifestly be proper that the owner 
 should accompany him for the purpose of identifying the property. 
 It is not necessary that the warrant state the owner of the goods.^ It 
 must be under seal, and be directed exactly as prescribed by this 
 statute. A' direction " To any constable" of the county, only, would 
 be insufficient.* 
 
 [§ 668ffl]. By a recent statute of New York, the above act is 
 extended to the case of mineral water bottles, properly stamped or 
 registered, where the agent or owner shall make oath or affirmation 
 before a magistrate that he has reason to believe and does believe 
 that any of his bottles, so stamped or registered, are being unlawfully 
 used for selling or manufacturing mineral water or other beverages ; 
 or that any junk dealer or dealer in bottles has secreted any of them ; 
 the act also providing for a summary disposition of the matter.* 
 
 § 669. In executing a search warrant, the officer may, after demand- 
 ing admittance to the house described in the warrant, if it be refused, 
 break open either the outer or an inner door ; * and, in like manner, 
 if he demands that any trunks, chests or boxes be opened for the pur- 
 pose, or their key delivered to him, and a compliance with the demand 
 be refased, he may break them open.' 
 
 § 6T0. (3) Where the officer having process exceeds his authority. 
 The party suing out process from a competent court, is responsible 
 only for its validity, and for good faith in suing it out, but is not 
 answerable for any acts of the officer to whom it is delivered, beyond 
 its authority, unless . done by his direction. Thus, if a sheriif serve 
 any process after the return day, without the direction of the plaintiff, 
 the officer alone is accountable. The same rule applies to a justice 
 who issues process to a constable. In the case of a party,, he may be 
 liable, if he has subsequently ratified the act, with a full knowledge 
 of all the facts.* The receipt of the money, by the party or officer, 
 would not be a sufficient ratification in the absence of that knowledge.' 
 Neither is he liable for the abuse of the process, as if the officer should 
 levy upon property exempt from execution, unlesi he directed the 
 officer to do it,* 
 
 § 671. If an officer, upon an execution against A., levies upon the 
 property of B., he is liable therefor ;* but the law will not, without 
 
 » 10 John. 263. 
 
 '9 John. 117. 4 id. 450. 8 Barb. 355. 
 
 » 3 Park. Cr., 656. 
 
 '3 861(1.331. 
 
 » Laws of 1860, chap. 117, p. 194, § 3. 
 
 "14 John. 346. 2 Corns. 517. 7 Minn. 
 
 * 1 Conn. 40. 10 John. 263. Crocker 
 
 184. 
 
 on Sherififs, § 80. 
 
 »13Cal.275. 8 Minn. 365. 
 
 ' 1 Chitty's Cr. Law, 66. 
 
 
■^60 PEIOEITT OF- EXECUTIONS. ' 
 
 otlier proof, impute the act to the plaintiff; and the fact that his 
 attorney ordered the officer to make the levy, is no evidence of the 
 plaintiff's participation in the wrongful taking.* But where it 
 appears that the plaintiff directed it, he, as well as the officer, are 
 liable as joint trespassers, and the plaintiff, in that case, cannot insist 
 that the process, and not his direction, influenced the officer.' The 
 rule is the same where another person than the plaintiff in the execu- 
 tion directs or indemnifies the officer in making a wrongful levy.* 
 
 § 672, "Whenever a sheriff or other public officer has proQess which 
 it is his duty to execute, he may call upon any person to assist him 
 in executing it. The sheriff may also call upon any one to aid hi|m 
 in preserving the peace and arresting offenders, and one who refuses 
 to assist him is punishable/ This common law doctrine is affirmed, 
 in New York, by an. express statute.^ One acting under his command, 
 in his aid, may justify as he may,* but if the sheriff or officer be act- 
 ing under a process, invalid on its face, and which would not protect 
 him, the person acting in his assistance is not protected.' The pro- 
 cess must be such that upon its fa,ce the officer is compellable to 
 execute it, And the protection does not extend to volunteers not 
 called upon to aid him.* Under the statute just referred to, the 
 sheriff can only " command as many of the male inhabitants of ' his 
 county,' as he shall think proper, to assist him in overcoming resist- 
 ance to the execution of process delivered to him." Consequently^ 
 he has no authority to command one to assist him in doing an act in 
 another county, except when passing through it, with a prisoner, of 
 carrying a convict through to prison.' 
 
 § 673. As there are frequently questions arising in relation to the 
 validity and priority of liens upon property by virtue of executions, 
 a reference to the rules in relation to the subject \vill be useful under 
 this "title. At common law, executions issued from courts of record, 
 were regarded as issued only during the terms of the court. If issued 
 in vacation they were deemed to have been issued on a day of the pre- 
 ceding term namftd in the teste of the writ, and the title to any per- 
 sonal property which the defendant in the execution had at the day 
 
 ' 1 Denio, 501. 4 ifl. 395. ' 10 Wend. 138. 
 
 "Anterefs-innoteS, §670. 'IHffl, 279. 6 Nev. and Man. 736. 
 
 '5 Denio, 93. 4 id. 446. » 3 R. S. 739, § 13. Id. 749, §47. 3 id. 
 
 « 10 John. 85. (Banks' 5tli ed.) 1033, § 15. Id. 1043, § 54. 
 ' 3 R. S. 441. §§ 80, 83. 3 id. (Banks' Per Parker J. in JSzU v.. Haynea, Ms. 
 
 5th ed.) 740, §§ 101, 108. case. 
 "3 Wend. 446. 
 
PUEOHASES TO DEFEATID CEBDITOES. g^J. 
 
 of the teste, was bound by it upon a levy made by tbe sheriff at any 
 time before its return, and this, notwithstanding they had been sold 
 to purchasers ignorant of the execution, and who paid full value.^ 
 The New York Eevised Statutes have changed the rule, by pro- 
 viding that " goods and chattels situated within the jurisdiction of 
 the oflScer to whom an execution shall be delivered, shall be bound 
 only from the time of the delivery of the same to be executed ;"^ and 
 that " the title of any purchaser ,in good faith, of any goods or chattels 
 acquired prior to the actual levy of any execution, without notice of 
 suclx execution being issued, shall not be divested by the fact that 
 such execution had been delivered to an officer to be executed, before 
 such purchase was made.'" It will be seen that this last provision is 
 intended for the protection of hona fide purchasers only, and is not 
 in conflict with the first one, that goods shall be bound only from the 
 delivery of the execution. The one has reference to the rights of 
 the party, and all persons except iona fide purchasers, and the other 
 to those of purchasers in good faith. From the moment an execution 
 is delivered to a sheriff, the goods of the defendant are liable, until 
 its return day, to be levied upon, whether in his hands, or those of 
 any other person, except purchasers in good faith. And if one, with- 
 out notice of the execution, should purchase them, paying value for 
 them, the provision of the Revised Statutes would render the title of ' 
 the purchaser valid and free from the lien. If, however, the purchaser 
 should have notice of the execution, the goods would be bound by it, 
 and his title would be divested by a levy. And if he should purchase 
 after a levy, whether with or without notice of it, his title would be 
 subject to it, and be divested by a sale by the sheriff.'' If the execu- 
 tion creditor directs the sheriff to ,keep his levy a secret, his execu- 
 tion becomes dormant, and a subsequent iona fide purchaser will hold 
 the goods f otherwise, if he simply directs the officer not to make 
 his business public.^ 
 
 § 6T4. A purchase of goods, made for the purpose of keeping 
 them out of the reach of an execution, is fraudulent, and wherever 
 it can be shown, it- will protect an officer in pursuing and levying 
 upon them although in _ the actual possession of the purchaser, and 
 notwithstanding the sale was made before the execution was issued. 
 The mere knowledge by the purchaser that there is a judgment 
 
 1 13 John. 406. 11 "Wend. 550. ■• 11 Wend. 548. 
 
 = 2 R. S. 365, § 13. 3 id. (Banks' 5th ed.) 644. "16 Barb. 585. 
 'Id. § 17, &c. (Banks' 5th ed.) 645. 5 " 11 Wend. 548. 
 Denio, 619. 
 
 46 
 
362 PEIOEITT OF EXEOTfTIONS. 
 
 against the vendor is not sufficient to show it fraudulent; but if lie 
 knows of tlie judgment and makes the purchase with a view or pur- 
 pose to keep the property out of the reach of an execution either 
 issued or to he issued thereon, it will he fraudulent and void as 
 against it, notwithstanding he pays a full price for it.-^ But a debtor 
 may sell property to a creditor in payment of a debt, at a fair valua 
 tion, even if the debt is not yet matured.' 
 
 § 675. Although the property of a defendant is, as between him and 
 the plaintiff, only liable to an execution from the time of its delivery 
 for service, yet that liability is a lien until levy, except as to one 
 who, between the delivery and levy, becomes a iona fide purchaser 
 or mortgagee without ^notice;' and the levy, especially as against 
 such a purchaser, must be an actual one and sufficient to constitute 
 the officer a trespasser were it not for his process.* "When the levy 
 is made, the lien, as it regards the parties to the action and all per- 
 sons except purchasers without notice and for value, relates back to 
 the time the sheriff received the execution.^ If the sheriff omits to 
 make a levy until after the return day of the execution, the right to 
 levy is thereby lost. If he make a levy before the^ return day he 
 may not sell the property afterward.* 
 
 § 676. Prior to the Eevised Statutes, it was held that if two exe- 
 cutions were delivered to a sheriff and he sold under the junior 
 execution, the sale under it conferred a good title upon the pur- 
 chaser ;'' and if the sheriff had paid over the proceeds of the sale 
 to the plaintiff in that execution, the only remedy of the plaintiff 
 in the senior execution would have been against the sheriff. If the 
 two executions were in the hands of the same person, the plain- 
 tiff's remedy would be perfect, for the officer should have paid 
 the moneys raised from the sale upon the older lien. If, however, 
 the executions were in the hands of different persons, as the sheriff 
 and a deputy, or two different deputies, the liability of the sheriff 
 would depend upon the question whether there had been negligence 
 in not making the levy and sale upon the senior execution. ' While 
 
 ■ 8 John. 446. 13 id. 330. 18 Wend. * 5 Denio, 303. 39 N. Y. 471. 30 111. 
 
 353. 8eealso43Barb.98. Id. 171. Id. 300. 446. 31 id. 130. \ 
 
 " 34 N. Y. 386. ° Supra, note 3. 13 John. 407. 3 Eq. 
 
 » 5 Denio, 619, 635. Id. 198. 5 Abb. Cas. Ab. 381. 4 East. 536. 4Cowen,461. 
 
 458. In Iowa there is no lien till the levy. "Id. 3 Gaines, 343. 9 John. 133. 13 
 
 16 Iowa, 334 ; also in Minnesota, 3 Minn. id. 355. 17 id. 116. But see Infra. § 1584. 
 
 877. ' 1 Ld. Kaym. 353. 4 East, 638. 13 
 
 John. 164. Id. 403. 
 
PKIOErrY OF EXECUTIONS. 363 
 
 tlie proceeds remained in the sheriff's hands, their application'would 
 be tinder the control of the court.' 
 
 § 67Y. The Eevised Statutes have substantially affirmed the doc- 
 trine previously established. They provide that the property of the 
 defendant in an execution shall be bound only from the time of its 
 delivery to the officer, and that " If there be several executions 
 issued out of a court of record against the same defendant, that 
 Vfhich shall have first been delivei-ed to an officer to be executed 
 shall have preference, notwithstanding a levy may be first made 
 under another execution ; but if a levy and sale of any goods and 
 chattels shall have been made under such other execution, before an 
 actual levy under the execution first delivered, such goods and chat- 
 tels shall not be levied" upon or sold by virtue of such first execu- 
 tion ;" and " If there be one or more executions, and one or more 
 attachments against the property of the same defendant, or if there 
 be several attachments, the same rule prescribed in the last section 
 shall prevail in determining the preference of such execution or 
 attachment."^ The policy of the law is, while regarding the rights 
 of the several plaintiffs as far as practicable, to protect the purchaser 
 at the sale. Under the first of these sections it is held that, although 
 the sale on the second execution is valid, and no sale can be after- 
 ward had on the one first delivered, yet in making a disposition of 
 the proceeds, the officer must be governed by the priority in the 
 delivery of the executions to him, unless the prior ones are dormant 
 as to the subsequent ones.* 
 
 § 678. The statute further provides that "Any execution or attach- 
 ment issued out of any court not being a court of record, if actually 
 levied, shall have preference over any other execution issued out of 
 any court whether of record or not which shall not have been previ- 
 ously levied.* This rule reaches a great variety of cases where thery 
 are several executions or attachments in the hands of different 
 officers, all of which have been issued from a justice's court, or some 
 of which may have been issued from such a court and some from a 
 court of record. In euch cases the first levy is the superior lien. 
 If, after a levy by a constable, a deputy sheriff levies on the same 
 property and sells it on an ' execution against the same debtor, for 
 
 J 4 Cowen, 461. 18 John. 311. ' 3 Corns. 457. 5 Bosw. 535, &c. See 
 
 » 2 B. S. 865, §§ 14, 15, 8 id. (Banks' 5 Denio, 198. 5 Barb. 385. 5 Cowen, 390. 
 
 t>\h ed.) 645. 3 Corns. 451. ■> 2 R. S. 636, § 16. 3 id. (Banks' 5th 
 
 ed.) 645. 
 
364 QUESTIONS OF JTIEISDICTION. 
 
 enougli to satisfy the prior one, tbe deputy is liable to the constable 
 for the amount of bis execution.^ 
 
 §, 679. A similar rule has been established in relatioix to any seiz- 
 ure of property by virtue of the law, as for a tax, distress, damage 
 feasant or any similar process. As soon as it is seized it is reduced 
 iijto the custody of the Imo, and then obtains a preference to any 
 execution whether issued before or afterward, upon which no levy 
 has been made.^ 
 
 § 680. "Where the common law or statute gives a right or declares 
 any act to be an injury to another, the person entitled to the right, gr 
 suffering the injury has a remedy. Prior to the New York Cod,e of 
 Procedure, if therp wei-e no specifto form of action adapted to secure 
 it, it was attainable by a special action of trespass on the case. Now, 
 all these eases, in that state, have their remedy by civil action. Cases^ 
 however, are of frequent occurrence, which are not within the juris- . 
 diction of a justice's court, although the amount of damages claimed 
 does not exceed two hundred dollars. The language of the section 
 limiting the jurisdiction of a justice is very explicit ; " Justices of 
 the peace shall have jurisdiction in the following cases, and no othsr." 
 The subdivisions which comprehend the class of cases formerly reme- 
 diable by actions of trespass on the case, is equally distinct: "An 
 action for damages for injury to rights pertaining to the person, or to 
 personal or real property, or for taking, detaining or injuring personal 
 property," and " an action for damages for fraud in the sale, purchase 
 or exchange of personal property."* These clauses seem, by their 
 terms, to exclude a variety of cases besides actions for " assault, bat- 
 tery, false imprisonment, libel, slander, malicious prosecution, crimi- 
 nal conversation or seduction," excluded by the next section. Among 
 them are actions for escapes, false return, official negligence, where 
 they are not brought upon contract, and frauds in recommending 
 third persons in order to give them credit, and a variety of other 
 wrongs where the plaintiff is clearly entitled to relief. These cannot, 
 without violence to language, be deemed injuries to rights pertaining 
 to the person, or to personal or real property. And, in confirmation 
 of this position, are two decisions, the one of which holds that a jus- 
 tice's court has not jurisdiction of an action against a sheriff for not 
 returning an execution,* and the other, that it has not jurisdiction of 
 one against a justice for a false return.* So, also, it was held, in 
 
 ' 19 Barb. 413. • 6 Duer, 697. 
 
 '4JBa«t,645. Show. 173. ' 14 How. Pr. E. 337. 
 
 •Code, §53. 
 
DAMAGES FOE FALSE EEPEESENTATIONS. 3^S 
 
 another case, that justices have not jurisdiction of actions on the case 
 for fraud in obtaining a judgment.^ These cases were all prior to the 
 amendment by which the subdivision was made to read as above ; but 
 it is not yet decided whether these amendments have varied the rule 
 in the respects embraced by the decisions.' 
 
 § 681. A false affirmation as to the solvency of a third person, by 
 which he was enabled to purchase goods upon credit, in order to ren- 
 der the party liable who makes it, must be shown to have been made 
 corruptly and with intent to deceive.^ If one made it in good faith, 
 and believing it was true, although he professed to speak from his 
 own knowledge, no action lies, and liis expressions must be under- 
 stood according to the subject, which is the credit of the third person, 
 and which is matter of opinion.* Eut when the agent of an owner 
 ■ of land, made statements so minutely descriptive of the land, that on 
 their face they clearly imported a personal knowledge of the facts, 
 and were not materially qualified by a reference to any other person 
 as the source of information, it was held that his principal was liable 
 for fraud, the court. saying "they could not be honeBtly made, when 
 he had not the slightest knowledge of the subject," and that if the 
 statements " were made with an intent that he (plaintiff) should rely 
 upon them, and he did rely upon them, it was as much a fraud as if * 
 they were known to be untrue.'" A similar rule would, doubtless, 
 apply to similar statements as to the solvency of a third person. 
 Where the intention is to deceive, the false represent,ation may exist as 
 well in a suppression of the truth as the assertion of a falsehood, and 
 it need not be made with intent to deceive and defraud any particu- 
 lar person, if it appekr that it was to afford the third party a false 
 credit, and that by means of it the plaintiff was defrauded.* 
 
 § 682. The following cases illustrate the strictness of the rule by 
 which persons are held responsible for damages occasioned by false 
 representations. One who held judgments ^against B. wrote to his 
 friend in New York : " Mr. B. is going to your place to buy goods. 
 He has been a merchant some years at A. ; has bought his goods at 
 Buffalo, TJtica and elsewhere, heretofore. Any assistance you can 
 give him by way of buying would be thankfully acknowledged, he 
 being an acquaintance of mine." The friend, in consequence, intro- 
 
 1 40 Barb. 512. * 3 East, 92. 3 Kent, 488, 490. 44 Barb. 
 
 " See 40 Barb. 520, 531. 498. 
 
 '7 Wend. 9. 11 id. 374 3 Kern. 822. '21 N. Y. 238. See 36 BarTs. 377. 42 
 31 jr. Y. 518. Mo. 18. 14 Mich. 109. 271na.4 
 
 •7 Wend. 9. 38 Barb. 445. 25 id. 578. 
 
366 
 
 ACTIOKS FOE BREACH OF TETJST. 
 
 dueed B. to the plaintiff, who sold him goods on credit. The writer 
 of the letter was held responsible for a false recommendation, on the 
 ground of his sv^ppression of the fact that he held judgments at the 
 time against B., and knew he must fail, and that he was bound to 
 disclose all his knowledge when he wrote such a letter introducing 
 him.^ In another ease the defendant gave to A. a general certificate, 
 stating that he was honest, industrious, reputable, of good morals and 
 habits, and in his opinion he would honorably endeavor faithfully to 
 perform every engagement he should make in any matter of business 
 or credit ; on the strength of which A. obtained credit. The defend- 
 ant was held liable upon its being shown that the certificate was false, 
 and he was not permitted to show that the certificate was given for a 
 particular purpose other thaij the one for which it was used. It was, 
 however, held that the defendant might, if he could, have shown that 
 he believed the allegations contained in the certificate, and was the 
 dupe of A.' Where a party, in bad faith,' and with a view of inducing 
 others to credit a merchant, represented that he has examined into his 
 affairs and considers him solvent and worthy of credit, and that he is 
 going on well, when such merchant is, infact, insolvent, and the party 
 making the representations has not investigated his affairs, and knows 
 nothing of his business condition, except that he is largely indebted, 
 a portion being owed to himself; it was held that he was liable to 
 one who had trusted the merchant on the faith of these represen- 
 tations.* 
 
 § 683. In cases of breach of trust by one's attorney, agent, servant, 
 surgeon, physician, tailor, smith, barber or other person exercising a 
 trade or profession, acting ignorantly, carelessly or maliciously in 
 their several undertakings, by which an injury is done to the plain- 
 tiff's person or property, he is not obliged to resort to his action upon 
 their contract, but may bring one directly for their wrongful or negli- 
 gent act.* But where an action for neglect is not maintainable without 
 referring to a contract, and proving that, the action must be brought 
 on the contract itself, and not for the wrong.^ A servant or attorney 
 is bound only to diligence and fidelity, and is not accountable for want 
 of skill Gross negligence or ignorance must be shown in order to 
 render an attorney liable. If he acts to the best of his skUl, and with 
 
 ' 7 Wend. 9. * 1 Bouv. Inst. 403, § 1005. 3 Stark. B. 
 
 ' 14 "Wend. 126. 6. 5 J. Scott, N. S. 286. 8 East, 353. 3 
 
 ' 3 Kem. 322. WUs. 359. 
 
 ' 7 HUl, 101. 
 
AEBESTS. 36t 
 
 a reasonable degree of attention, he is not responsible.^ ' In regard to 
 dealings between bimself and his client, the highest degree of fairness 
 and good faith is expected and exacted.^ 
 
 I . § 684. A public officer not acting in a judicial capacity is answera- 
 ble for neglect of duty, or abuse of his trust, to any one who is injured, 
 thereby.' Thus, if a sheriff or constable neglect to serve process to 
 him directed and delivered for service, which is not bad upon its face,* 
 or sells property on an execution at a grossly inadequate price,^ or 
 suffers an escape on civil process,® or makes a false return ; '' or if a 
 justice, when properly applied to, refuses to issue process or makes a 
 false return to an appeal from a judgment rendered before him ;^ or 
 a county treasurer refuses to pay over money without cause,' each is 
 liable to the party injui-ed. If, however, the party consents to the 
 neglect or delay, the officer is not HaWe.-"' In New York, under their 
 statute, an overseer of highways is not liable to a person for an injury 
 which he has sustained in consequence of his neglect to keep a bridge 
 in repair ; nor are commissioners of highways, if they have no funds, 
 and probably not even if they have." 
 
 § 685. An escape presupposes an arrest. This, strictly speaking, 
 is the actual corporal seizure of the defendant. Technically, however, 
 the touching of his person is not necessary. It is sufficient if the 
 prisoner be within the power of the officer and submit to the arrest,''* 
 or where the officer goes into his room, tells him that he arrests him, 
 and locks the door.^^ So it is sufficient if the intention and the power 
 to make an arrest co-exist, and are made known to the party, who 
 does not resist.^* It is an arrest if one having authority to arrest lays 
 his hand upon the person, for the purpose of arresting him, though he 
 does not hold or stop him.^' 
 
 § 686. In making an arrest, a regular officer within his official dis- 
 trict is not bound to show his warrant, though it be demanded,'^ but 
 a special deputy must show his process, or the party arrested may 
 
 'Ante, §290. 3Wils.325. 4 Bur. 3060. ' 5 Wend. 309. llAd. &E. 539. 4 id. 
 
 3 Bam. & Cress. 738. 3 Camp. 19. 1 N. 8. 566. 
 
 Bouv. Inst. 408, §§ 1004, 1005. 37 How. » 1 Denio, 589, 595. 81 How. Pr. R. 
 
 Pr. 313. 13 CI. & Fin. 98. 13 Cal. 303. 154. 11 Wend. 645. 
 39 Ind. 435. 38 Texas, 435. ' 3 Cowen, 444. 
 
 '17111.148. 18 Texas, 135. " 1 Head. 377. 
 
 '34 Iowa, 336. 18 id 153. » 17 John. 439. 39N.T.397. 
 
 * 88 Barb. 18. 39 id. 69. 4 Bosw. 649. " 1 Wend. 310. 
 4Sneed.577. 10 Wis.' 101. " 5 Co. 93. Hob. 63a. 
 
 <■ 1 Bos. & Pul. 359, 360, note a. 3 Camp. " 18 N. H., 198. 
 521. " 3 Allen, 495. 
 
 » 35 Barb. 514. 5 Seld. 208. 4 Bosw. 884. " 10 Wend. 514. 2 Hill, 86. 
 
^6i8 
 
 AEEEST m A DWELLIKG-HOtrSB. 
 
 lawfully resist Mm} Where a party is apprfehended in tlie commission 
 of an oflfense, or upon fresh pursuit afterward, notice of the official 
 character of the person making the arrest, or of the cause of the arrest, 
 is not then necessary.^ Where, however, a party submits to the arrest 
 of a regular officer, the latter is bound afterward to give him the 
 substance of the process, in order to enable him to take such legal 
 measures as he desires to obtain his discharge, if he asks for it.' 
 
 § 687. For the service of civil process, every man's dwelling-house 
 is inviolable, or as the early writers express it, is his castle, and an 
 officer has no right to break its outer door or window, to open it if 
 shut, to lift a latch in order to enter it, or to enter against the owner's 
 command in order to arrest him or to' levy upon his property. And 
 it makes no diflerence whether the owner be at home or absent. The ' 
 privilege is intended for the protection of himself and his family, and 
 is therefore confined to the dwelling-house occupied by them, and does 
 not extend to a barn, store, shop or warehouse disconnected from the 
 dwelling-house, and forming no part thereof.* 
 
 ' § 688. Where a sheriff, with process, opens the outer door of the 
 defendant, for the purpose of arresting him or levying upon his prop- 
 erty, and there does arrest him, or make a levy, the arrest and levy 
 are void, and he is himself liable for the unla.wful entry.' But where 
 the sheriff obtains admittance into a dwelling-house without a wrong- 
 ful entry,, he may break an inner door in order to arrest a party or 
 make a levy.' This was held where the front door was generally 
 fastened,. and the usual entrance was by the back door, which the 
 sheriff found open in the night, and entered, and then broke an inner 
 door and arrested the defendant.' And where one let all his house 
 but an inner room, which he occupied, and the officer having obtained 
 peaceable admission into the house, broke open the door of that room 
 to arrest him, the arrest was held good,* 
 
 § 689. For the purposes of protection against arrest in his dwelling- 
 house, a man's permanent boarders or lodgers are regarded as mem- 
 bers of his family. But his house is no protection to one who has 
 gone there merely to avoid the service of process, or a stranger.' To 
 
 ■24 Wend. 418. .10 id. 614. '1 Hill, 336. 4 id! 437. Also 20 Barb. 
 
 "STCal. 573. 10 Wend. 300. 16. 
 
 ' 2 Hill, 86. • 16 John 287. 
 
 ♦1 Hill, 388. 4 id. 437. 6 id. 597. 16 '17 id. 127. 
 John. 287. 13 Mass. 520. Crocker on '5 John. 852. See also Lofit, 874. 
 
 Sheriffs, §314. Sewell on id. 111. Im- Cowp. 1. 3 Moore, 307. 
 
 peyonid. 75. "5 Coke, 91. 16»John.287. 13 Mass, 530. 
 
ESCAPES. 869 
 
 arrest such a one, an officer may break the enter door if admission 
 be refused him, or, if he have obtained admission, may break an inner 
 door. He does it, however, at his peril. If the person against whom 
 he has process is there, he is justified, but if he is not, he is liable to 
 the householder. In an action against him, therefore, he must aver 
 and prove that the person to be arrested was actually in the house, 
 or the room, as the case may be.^ Where he has process against the 
 householder, and has obtaiaed lawful admission into the house, he 
 may, after a demand and refusal to enter an inner door to make the 
 arrest, break it, although it subsequently appears that the householder 
 was not within.' 
 
 § 690. After an officer has arrested one against whom he has. pro- 
 cess, if his prisoner escape from him, he may break the outer door of 
 his own or any other dwelling-house, in order to retake him, if, after 
 making known his business and demanding admission, it is refused to 
 him. And if he had lawfully made the arrest in the prisoner's house, 
 and he should then be thrust out of it, he' may, upon a refusal to per- 
 mit him to come in, return, with such assistance as may be necessary 
 to enter and retake his prisoner.* 
 
 § 691. An escape is either negligent or voluntary ; negligent where 
 the prisoner escapes without the consent of the officer ; and voluntary 
 where he permits him to go at large.* After a negligent escape, the 
 officer may retake the prisoner, even upon Sunday," and such recap- 
 ture, or a voluntary return into his custody, before an action against 
 the sheriff for the escape, is a good defense to him.' "Where a defend- 
 ant is arrested upon an execution against his body, which is techni- 
 cally called final process, if he permits him to escape, he cannot 
 retake him upon the same process, and would be liable to false 
 imprisonment if he should do so.' The rule is different, however, in 
 regard to process by which an action is commenced, or which is issued 
 during its progress, for the defendant's arrest. This is technically 
 called mesne, or middle process, it originally beiag process which was 
 issued between the commencement of an action and the judgment. 
 "Where a sheriff has suffered his prisoner to escape voluntarily, on 
 mesne process, he may retake him.* A rescue from the officer of a 
 
 '6 Taunt. 246. "6 Mod. 231. 6 Abbott, 206. 2 John. 
 
 » 3 Bos. and Pul. 228. Cas. 3. 
 
 •10 Wend. 300. »6Cowen, 732. 2 R. S. 435, § 48. Sid. 
 
 < Grab. Pr. 148. 4 John. 45. 10 id. 549. (Banks' 5th ed.) 734, § 69. 5 Duer, 118. 
 
 6 Abbott, 206. ' 15 John. 256. 3 Corns. 331. 
 
 •2 TermB. IK to ITT. 10 Wend. 514. 
 47 
 
3f0 
 
 FALSE BETUEN8. 
 
 prisoner arrested on mesne process, by superior force, is a good defense 
 to him in an action for escape. It seems, however, it is not upon an 
 execution.^ An illegal discharge by the officer, is a negligent escape, 
 and the defendant may be rearrested on the same or another execu- 
 tion.* But if a debtor is taken from the jail or liberated by virtue 
 of a valid legal process, it is not an escape.^ 
 
 § 692. After an escape has happened, the consent of the plaintiff 
 in the action will not discharge the officer making the arrest, unless 
 it be made upon a valid consideration.^ The verbal consent of the 
 plaintiff's attorney will not be a defense to an action, for allowing an 
 escape.' 
 
 ,§ 693. The plaintiff in an action for an escape can recover no more 
 than he could have recovered in the original action, and no more 
 than he has actually lost in consequence thereof,* and if he, after 
 learning of the escape, relinquish any security which he held for his 
 debt, the officer may show this in mitigation of damages.'' If the 
 escape was from an arrest on Tnesne process, and the plaintiff can 
 recover his claim against another party, tliis is a ground of deduction 
 from the damages.* And also in such a case, if the defendant was 
 insolvent, the plaintiff can recover only his actual damages.' But if 
 the escape was from an arrest in execution, the plaintiff recovers the 
 amount of his judgment, the defendant's insolvency not being a 
 defense, either in bar, or in mitigation of the damages.'"' 
 
 [§ 693a.J If the judgment or the process on which the arrest was 
 made was void, that fact, if proved, will defeat the action for the 
 escape." But that either the judgment or execution was irregular or 
 erroneous is no defense.^^ 
 
 § 694. If after a vohmtary escape the officer is obliged to pay the 
 plaintiff the amount of his debt, he cannot maintain an action against 
 the defendant for the money paid.-'* 
 
 § 695. Where a public officer is bound in the business of his office 
 to make a return, an action lies against him in case his return is 
 false." It is a common one against a justice of the peace, for making 
 
 ' Cro. Jac. 419. '» 5 Seld. 308. 35 Barb. 514. 33 How. 
 
 ' 7 Ind. 583. Pr. K. 139. 
 
 ' 1 Keyes, 531. " 31 N. Y. 90. 38 How. Pr. E. 335. 
 
 • 7 Cowen, 374. 6 Bosw. 35. 30m. 291. 34 id. 653. See 
 » 1 Bosw. 349. See Infra, § 1645. 13 Ohio N. S. 183. 
 
 •lJolm.315. "15 John. 153. 3 Corns. 883. 4 Bosw. 
 
 ' 7 John. 189. -384. 
 
 'Gra. Pr. 149. "8 East, 171. Gra. Pr. 149. 
 
 • 17 Wend. 543. 36 Baib. 356. 4 Bos. 391 . » Supra, § 684. 
 
LtABILITT OF JUDICIAL OFFICEES. 371 
 
 a false return upon an appeal from a judgment rendered Iby him, and 
 against sheriffs for false returns to process. The false return, how- 
 ever, must have caused an injury to the plaintiff, or an action will not 
 be sustained. If, therefcye, the return be untrue, yet if the fact had 
 been truly stated it would have produced the same result as the return 
 made, the officer will not be liable for damages.^ In the case of a 
 justice, he acts ministerially in making return to an appeal, and is 
 *psponsible for any error which damages the party, however pure his 
 motives, and without proving that his return was either deceitfully, 
 fr^dulently, willfully, knowingly or intentionally made.' 
 
 §' 696. A sheriff or constable who levies on goods by virtue of an 
 execution, and returns it nulla iona, assumes the responsibility of 
 proving the title out of the defendant in the property levied upon. 
 The fact of the levy is prima facie evidence against the officer that 
 there was property of the defendant, and he must overcome it by 
 proof that there was not.' 
 
 § 697. A judicial officer is not liable in a civil action for a mistake 
 in law made when he has jurisdiction of the subject-matter in relation 
 to which he is acting,* nor for misconduct as a judge, notwithstanding 
 his conduct be corrupt.^ This is the rule in New York, but in Iowa, 
 Missouri and Illinois, it is otherwise, a judicial officer being liable in 
 those states, both civilly and criminally, for exercising his judicial 
 functions willfoEy, maliciously or corruptly.* When a justice on a 
 complaint ~ that the plaintiff " on the first day of the week, called 
 Sunday, circulated a memorial to the legislature," issued a wai-rant 
 against him under the statute entitled " Of the observance of Sun- 
 day,"' had him arrested and imposed a fine upon him, it inot appear- 
 ing what the purport of the petition was, the supreme court held 
 that he was not liable to the plaintiff.* 
 
 § 698. In another case, a justice rendered a judgment against the 
 defendant in an action tided before him ; the defendant wishing to 
 bring an appeal, wrote to him to send him the exact amoimt of the 
 judgment. The justice negligently replied, giving the amount at 
 $2Y,96, and the defendant in the action acted upon his information 
 
 ' 1 Wend. 48. 9 id. 398. 11 Ad. & E. 117. 12 Barb. 165. 34 id. 433. 35 id. 
 
 539. 4 id. N. 8. 566. 413. 
 
 ' 1 Denio, 589. ' 3 Greene (Iowa), 5^4. 14 Iowa, 51 
 
 » 5 Wend. 309. . 23 How. Pr. E. 127. 18 id. 153. 30 Mo. 33. 23111.100. 3: 
 
 «8Cowen, 178. 11 Wend. 545. Supra, id. 318. 
 
 § 660. 14 Iowa, 510. 'IRS. 675, § 70. 2 id. (Banks' 5th 
 
 • 8 Cowen, 178. 1 Denio, .595. 8 id. ed.) 936, § 67. 
 
 " 21 Wend. 553. 
 
372 
 
 BISTEESS DAMAGE FEASANT. 
 
 and pi'epared an appeal bond with reference to it. The sufn wSls 
 erroneously stated, and in consequence the appeal was quashed for 
 the variance, and the defendant thereby lost his remedy and was 
 subjected to expense. The court held that the act of the justice was 
 not within the scope of his official duties, and neither a judicial nor 
 ministerial act, but only a friendly office for the gratuitous perform- 
 ing of which, negligently, but without fraud or evil intent, he was 
 not answerable.^ Since this decision, a statute has been passed, 
 requiring a justice who has lendered a judgment by default, and in 
 the absence of the party against whom it is rendered, on the demand 
 of any person interested therein, to give him a transcript of the judg- 
 ment, together with a copy of the process, pleadings and proofs in 
 the cause, if in writing, or the substance thei;eof, if not in writing, or 
 such parts thereof as maybe required, on his being paid therefor 
 twenty-five cents for such transcript, and six cents a folio for the 
 residue thereof.* 
 
 § 699. In addition to the remedy which one has for injuries to his 
 real estate or growing crops from animals or inanimate chattels of 
 another, he has a remedy by distress. The remedy existed at 
 common law, but it only authorized the detention of the thing 
 distrained as a pledge, and gave the distrainer no power to sell it.^ 
 The remedy in New York has been rendered more available by 
 statute, and by a compliance with its provisions the property 
 distrained may be sold in satisfaction of the damages sustained.* 
 There are several rules to be observed in relation to this remedy. 
 1. The chattels distrained must be taken while doing the damage. 
 The proceeding is for this reason termed distress damage feasant, i. e. 
 doing damage. Thus if the chattels be inanimate, as stacks, nets, 
 oars, timber, &c., placed upon the distrainer's premises, he must 
 distrain upon them before they are removed, and if animals, he 
 must take them while actually upon his land ; for if once off from it, 
 although they escape while he is in pursuit of them, he cannot dis- 
 train them. 2. They can only be distrained for the injury they are 
 doing, and if they have done damage and gone off and returned and 
 are again doing damage, they can only be distrained for the damage 
 done the second time. 3. One beast, fowl or thing, cannot be 
 distrained for damage done by another at the same time, though in 
 the same field and belonging to the same owner, i. If tender of 
 
 ' 11 Wend. 545. ' "Woodf. Land. & Ten. 637. 3 "Wool. 
 
 "Laws of 1841, ch. 141. 3 R. B. Lee. 125. 
 (Banlis' 5th ed.) 458, § 183. ' 3 R. S. 517. 3 id. (Banks' 5th ed.) 841. 
 
DISTRESS DAMAGE FEASANT. 373 
 
 amends for the injury done be made before the distress it cannot be 
 made. 5. If the tender be made after the distress, but before the 
 impounding of an animal distrained, the distrainer majr not distrain 
 it. 6. If the tender be made after the impounding, the tender must 
 be sufficient to cover the distrainer's damages, as well as the expenses 
 of impounding. 7. The distress may be made by night or by day.^ 
 8. If cattle' be distrained without a cause they may be rescued by 
 their owner at any time before they are impounded, but after being 
 impounded they cannot be rescued, although they may have been dis- 
 trained without cause.^ 9. The distress may be made by an agent or 
 servant for and under the direction of his master.' 
 
 § 700. The right to distrain cliattels damage feasant does not 
 depend upon the particular kind of injury done, or the place where 
 it is committed. Accordingly it has been held that swine eating 
 corn in the distrainer's barn were properly distrained.* And where 
 one has distrained chattels, he may at any stage of the proceedings 
 before satisfaction is received for the damage he has sustained, 
 relinquish them and resort to his action, the remedy by distress 
 being merely cumulative, and the party having the right, if he 
 chooses, to bring his action for his damages.^ 
 
 § 701. The statutory provisions in relation to distress are very 
 explicit, and furnish directions for each step in the proceeding in all 
 cases which will ordinarily occur, and as the remedy is a very con- 
 venient one to resort to, it has been deemed wise to copy them at 
 length. They are as follows:^ "(§!•) When any distress shall be 
 made of any beasts doing damage, the person distraining shall keep 
 such beasts in some secure place other than the public pound, until 
 his damages shall be appraised ; and within twenty-four hours after 
 such distress, unless the same was • made on a Saturday, in which 
 case, before the Tuesday morning thereafter, he shall apply to two 
 fence-viewers of the town, to appraise the damage. (§ 2.) Such 
 fence-viewers shall thereupon immediately repair to the place, and 
 view the damage done ; and they may take the evidence of any com- 
 petent witnesses of the facts and circumstances necessary to enable 
 them to ascertain the extent of such damage, for which purpose, 
 either of them is hereby authorized to administer an oath to every 
 such witness. (§ 3.) The said fence-viewers shall ascertain and 
 
 > Woodf. Tiand. & Ten. 627. 
 
 » 15 John. 330. 18 Wend. 330. 3 Hill, 
 
 ' 10 John. 358. 3 Bl. Com. 13. 
 
 41. 
 
 " 26 Iowa, 259. 
 
 • 3 E. S. 517. 3 id. (Banlcs' 5th ed.) 
 
 ♦ 19 Wend. 498. 
 
 841. 
 
^li DSTEBSS DAMAGE FEASANT. 
 
 certify, under their hands, the amount of such damage, with their 
 fees for their services ; and if any dispute shall arise, touching the- 
 sufficiency of any fence around the premises, where such damage 
 was done, the said fence-viewers may examine witnesses in relation 
 thereto, and for that purpose may admiaister oaths to such witnesses, 
 and they shall determine such dispute; which decision shall be con- 
 clusive. (§ 4.) "Within twenty-four hours after the said damages shall 
 be so appraiised, unless the amount so ascertained, and the fees of 
 the fence-viewers shall have been paid, the person making such 
 distress, shall cause the beasts distrained to be put in the nearest 
 pound in the same county, if there be one, there to remain until the 
 same be sold as hereinafter directed, or until replevied according to 
 law, or until the damages so certified, and the fees of the fence- 
 viewers and pound-master, be paid ; and he shall deliver the certi- 
 ficate of the fence-viewers to the keeper of such pound. The owner 
 of such beasts may give them their feeding, without disturbance. 
 (§ 5.) The pound-masters of the several cities and towns of this state, 
 shall receive and keep the beasts so delivered to them, in the public 
 pound, and unless the same shall be replevied, or discharged accord- 
 ing to law, within six days, such pound-master shall sell such beasts, 
 or so many of them as shall be necessary, at public vendue, giving 
 forty-eight hours' notice of such sale, by advertisement, to be fixed 
 up at such pound, and at the nearest public place. (§ 6.) From the 
 proceeds of such sale, the pound-master may retain sufficient to pay 
 the amount of his fees and his charges for keeping such beasts and 
 the charges of such sale ; and he shall pay to the person impounding 
 such beasts the damages so certified, with the fees of the fence- 
 viewers ; and if there be any suarplus, the same shall be paid to the 
 owner of sUch beasts. If no owner appear within one year after 
 Such sale, and claim sueh surplus, the same sh'aU be paid to the over- 
 seers of the poor of such city or tov?n, for the use of the poor thereof. 
 (§ 7.) Every pound-master with whom any beasts shall be impounded, 
 - shall discharge such beasts, on being paid. 1. The amount of the 
 damage 6o certified by the fence-viewers ; 2. The fees of the fence- 
 viewers'; 3. The fees of the pound-master, with his reasonable 
 charges for feeding such beasts, if fed by him, not exceeding sijc 
 cents for each beast, for every twenty-four hours. (§ 8.) When any 
 .person shall be authorized by law to distrain any inanimate goods or 
 chattels doing daraage, he shall keep the same in some safe and con- 
 venient place, until the damage shall be appraised, and the goods be 
 •sold or otherwise disposed of. (§ 9.) He shall apply to any two 
 
DIBTEESS DAMABE FEASAlfT. 375 
 
 fence-viewers of tlie town, to appraise the damages snstaiaed by Mm j 
 who stall proceed therein,, in the same manner and. with the same 
 powers, as hereinbefore provided,, with respect to cattle doing damage; 
 and in addition, they shall estimate and certify the value of the pro- 
 perty distrained. (§ 10.) The distrainer shall affix a notice in three 
 public places of the town, for ten days, as follows : 1. Specifying 
 therein the property distrained, and the amount of damages certified ; 
 2. Kequiring the owner of such property to redeem and remove the 
 same, before the day therein appointed for the sale thereof ; 3. Stating 
 that such property will on some day, at least ten days from the day 
 of the first posting thereof, be sold to pay such damages, and the 
 costs and charges of the proceedings. (§ 11.) If the value of the 
 property distrained, as certified by the appraisers, exceed fifty 
 dollars, the distrainer shall publish a notice tn the nearest newspaper, 
 once in each week for four weeks,, similar to that required in the last 
 section, except that the time of sale shall be at least thirty days from 
 the day of the first publication of such notice. (§ 12.) If the owner 
 of such property be known to the distrainer, or if any person be 
 known to him as claiming any interest in such property, and if such 
 owner or person reside within the county, the distrainer shall also 
 serve a copy of such notice within two days after the time of posting, 
 or after the first day of the publication thereof, either personally on 
 such owner or person, or in case of his absence from his usual or last 
 place of residence, by leaving the same at such residence with a 
 proper person. (§ 13.) If such goods and chattels be not removed, 
 and if the damages so certified, with the fees of the appraisers and 
 the expenses of such notice, be not paid at the time appointed in 
 such notice for the sale, the distrainer shall apply to the sheriff of the 
 county, or one of his deputies, or to any constable of the town, to 
 sell such goods and chattels, and shall make and deliver to such 
 officer, an affidavit showing his compliance with the provisions of 
 this title, and the original certificate of the appraisers. (§ 14.) Such 
 officer shall thereupon proceed and sell the goods and chattels so 
 distrained, in the same manner as on executions against personal 
 property in civil cases, and with the like authority and effect, and 
 shall be entitled to the same fees for his services. (§ 15.) From the 
 proceeds of such sale, such officer shall tetain his own fees, and shall 
 pay to the distrainer the amount of the damages so certified, and the 
 expenses of such notices, and also all expenses that may have been 
 necessarily incurred, in the safe keeping ,and preservation of such 
 property ; which expenses shall be ascertained and certified b" '• 
 
376 DI8TEEBS DAMAGE FEASANT. 
 
 judge of the county courts, or by a justice of the peace of the 
 county. (§ 16.) If any balance shall remain, such officer shall pay 
 the same to the county treasurer, for the use of the owner of such 
 property, or his legal representatives. (§ 17.) Upon the application 
 of the owner of such property, or his representatives, to the court of 
 common pleas [county court] of the county, and on due proof, by 
 affidavits of such ownership, the said court shall order such balance 
 to be paid to such owner, or his representatives, by the county 
 treasurer, after deducting a commission of five per cent for receiving, 
 keeping and paying over the same. (§ 18.) If uponsuch application, 
 the court entertain any doubt of the ownership of such property,, 
 before ordering such balance to be paid over, they shall require the 
 claimant to execute a bond to the people of this state, in a penalty at 
 least double the amount of such balance, and with sureties to be 
 approved by such court, conditioned that he will pay to any person, 
 who, in an action on such bond, commenced within two years from 
 its date, shall establish his right to such balance, or to any part 
 thereof, the amount to which he shall show such right with interest. 
 (§ 19.) Any person claiming such balance, or any part thereof, may 
 prosecute such bond, in the name of the people of this state, on the 
 relation of such person, who shall, in all respects be deemed the 
 plaintiff therein, and be liable for the costs. If he establish his 
 right tq such balance, or any part thereof, in such action, he shall be 
 entitled to recover such amount, with interest, as damages to be 
 assessed for a breach of such condition, with costs of suit. The 
 proceedings thereon shall be the same as in other actions on bonds, 
 with conditions other than for the payment of money. But no judg- 
 ment in favor of the defendants, shall be a bar to, or in any way 
 affect, any action that may be brought on such bond, by any other 
 person than the plaintiff against whom such judgment shall have 
 been obtained. (§ 20.) "When, by the provisions of any statute, any 
 officer is authorized to distrain on any property, for any purpose 
 whatever, and no special provision shall be otherwise made, he shall 
 cause at least five days' notice of sale of such property to be given, by 
 posting the same in three public places of the town, where such sale 
 shall be mslde. (§ 21.) Before making any such sale, such officer 
 shall also cause the property distrained, to be appraised by three 
 disinterested freeholders of the town, on oath ; and such appraisal, 
 with an inventory of the property distrained, shall be certified by the 
 appraisers in writing. (§ 22.) "Within ten days after any such sale, 
 the officer making the same shall file in the office of the clerk of the 
 
DISTRESS DAMAGE TEASANT. 377 
 
 town or city, wliere such sale was made. 1. His own affidavit, 
 specifying the cause of such distress, and the amount of the penalty, 
 tax, duty or other sum, for which the same was made ; 2. Proof by 
 affidavit, of the notice herein required, having been given ; 3. The 
 inventory and certificate of the appraisers : "Which papei'S, when so 
 filed, shall be presumptive evidence of the facts therein contained. 
 (§ 23.) Unless the provisions of the last section are complied with, 
 within the time therein required, such officer shall forfeit to the 
 owner of the property sold, twenty-five dollars. (§ 24.) From the 
 proceeds of any such sale, such officer shall be authorized to deduct 
 and retain the expenses of such appraisal, certificate, notice, proof 
 and affidavits, and of the filing the same, as herein required. And 
 the residue of such proceeds, after satisfying the penalty, tax, duty or 
 other sum, for which such s*ale was made, shall be paid within ten 
 days after such sale, to the treasurer of the county, for the use of 'the 
 owners of such property. (§ 25.) The same proceedings shall be had 
 by such owner,^to obtain the money so paid over, as are hereinbefore 
 provided, in the case of distress on inanimate property doing damage, 
 and the said provision shall apply in all respects to such moneys and 
 such proceedings." This statute only applies to the owners of 
 adjoining land.^ 
 
 [§ 701a.] A still further JSTew York statute relative to animals 
 trespassing is found, supra, section 533. 
 
 § 702. The intention of the legislature, as clearly expressed in the 
 statute, is that the damages sustained from animals distrained, must 
 be ascertained before they are put into the pound.* 
 
 § 703. It will be observed that the third section of the statute 
 provides that if any dispute arise touching the sufficiency of the 
 fence around the premises where the distress is made, the fence- 
 viewers are to determine it, and their decision is conclusive. It may 
 happen that, although the distrained animals have done an injury, 
 the fences of the i^arty distraining may be so in fault that the fence- 
 viewers would not award or certify any damages therefor.' The 
 provision authorizing the examination of witnesses is frequently 
 necessary where property has been wholly destroyed, or where fences 
 have been thrown down or their appearance altered, before a view. 
 In these cases the facts could not be ascertained by examination by- 
 the fence-viewers. 
 
 ■ 3 Hffl, 38. 30 id. 438, 9. 19 Wendell, 499. Infra, § 
 
 » 3 Jolrn. 191. 10 id. 358. 13 id. 477. 705. i 
 
 » 10 John. 353, 358. 
 
 48 
 
378 
 
 JOINT laSESPASSEES. 
 
 § 704. Tke strictest regularity is necessary in making a distress, 
 and the least departure frran the requisite legal steps in taking and 
 disposing of the property distrained will render the distrainer liable 
 to an action. The distrainer would then be regai'ded as a iresfpasser 
 from the heginning. This term is used to denote one who abuses a 
 license given him by law.* Thus one who by authority of law takes 
 the goods of another, as a sheriff by levy, and then willfully injures 
 or destroys it, becomes a tpespasser from, the hegimning, and the 
 original levy which was lawful does not protect him. In order to 
 constitute it, the authority must be by act of law, as one who abuses 
 a license given him by another is not a trespasser from the begin- 
 ning, and the abuse must be a positive act and not a neglect or 
 omission.'' One who, instead of passing along the sidewalk, stops on 
 it in front of a man's house and uses abusive and insulting language 
 toward him, abuses the privilege which the law gives him, and. 
 becomes a trespasser from the beginning f so does one who uses a 
 distress, as riding or working a horse that has been distrained.* 
 
 [§ 704a.] A horse cannot be distrained, dwmage feasant, if there 
 is a rider on him at the time, nor a horse and eart which are at the 
 time in the actual possession, care and use of a party driving them f 
 but a dog is not exempt though in the possession of its owner's son 
 and servant, and then in his actual use.* 
 
 § 705. If any step in the proceeding be taken in advance or omis- 
 sion of one which should precede it, the irregularity renders the 
 whole of the proceedings void and the distrainer is a trespasser from 
 the beginning, and in this ease the owner may, in his action, recover 
 the property or its value. A neglect, however, to deliver a distress 
 on tender of amends,' or an omission to have the damages appraised 
 within twenty-four hours, will not render the distrainer a trespasser 
 from the beginning.* 
 
 § 706. Where several persons are jointly engaged in any wrongful 
 act, although they may have contributed to it in different degrees, 
 each is liable for the whole injury.' Thus where several individuals 
 act in concert in entering upon the plaintiff' lands and cutting and 
 carrying a\?*ay his timber, they are all liable, although they do not 
 
 ' Supra, § 514 ' 1 Ad. & E. N. S. 67.9. 
 
 ' 13 John. 414. 5 Wend. 506. 19 id. ' 8 Co. 146. 10 John. 369. 19 Wend. 
 
 498. 4Demo, 319. 498. Supra, § 703. 
 
 = 11 Barb. 390. ' 19 Wend. 498. 
 
 • Cro. Jac. 147. 10 John. 358. " 1 John.390. lKern.138. 4Bosw.l30. 
 ' 6 Term R. 138. 13Ad. &B. 649. 
 
ACTIONS FOK PENALTIES. 379 
 
 participate as partners in the timber taken off.^ So, wliGre one sella 
 a building on another's land, appoints a day for the purchaser to take 
 it away, and promises to aid him in its removal, and it is removed in 
 the vender's absence, he is still liable to an action of trespass.* In 
 these actions against several trespassers, the damages are indivisible, 
 and should the jury erroneously assess diflferent amounts against the 
 defendants, the plaintiff should have judgment against all for the 
 Highest sum found against any.' One who knowingly receives a 
 chattel which another has wrongfully taken and afterward, upon 
 demand, refuses to deliver it to its owner, does not thereby become a 
 joint trespasser, unless it was taken for his use in the first instance.* 
 
 § TOT. In the case of joint liability as wrong-doers, one action may 
 be brought against all the parties jointly liable, or separate actions 
 may be brought against each one, and each action may be prosecuted 
 to judgment for the whole amount of damages, and its own costs. 
 But where several judgments are obtained, the payment of the 
 damages in one satisfies the damages in all the actions, but the costs 
 of each particular action may be collected of the^ defendant against 
 whom they are recovered.^ The same rules prevail in relation to the 
 release of one of several defendants, which do in actions upon joint 
 contracts, and the same precautions are necessary in the settlement 
 of such actions.* But unlike judgments upon joint contracts, if one 
 defendant pays the whole recovery in an action for a wrong in which 
 recoveries have been had against several, he cannot bring an action 
 against his joint defendants for a contribution to the payment made 
 by him, the law refusing to aid one wrong-doer to relieve himself by 
 action against another.' 
 
 III. Actions fob a penalty not exceeding two hundeed dollars. 
 
 § 708. By the Revised Statutes it was provided that, whenever a 
 pecuniary penalty or forfeiture was specially granted by law to any 
 person injured or aggrieved by any act or omission of another, he 
 might sue for and recover the same in an action of debt or assumpsit ; 
 and if there were a forfeiture of any property, by an action of trover 
 or other appropriate action.* The change of the forms of action 
 
 » 10 Wend. 654. 'Ante, §312. 30 Iowa, 310. 
 
 '12 Wend. 39. '3 John. Ch. 131. 11 Paige, 18. 83 
 
 •1 Kern. 138. 4Bosw.l30. 9 Pick.' 555. Barb. 354. 
 
 ' 4 Bam. & Adol. 614. » 3 R. 8. 480, § 1. 3 id. (Banka' 5tli ed.) 
 
 ' 1 John. 390. 30 Iowa, 310. 4 Met. 783. 
 (Ky.) 330. 
 
380 ' ACTIONS FOJE PENALTIES. 
 
 eifected by the Code leaves the right as it existed before, and fur- 
 nishes the remedy by civil action.'^ 
 
 § 709. The language of the original Code of Procedure limited the 
 jurisdiction of justices to action upon penalties provided by statutes. 
 It was then doubtful whether it extended to the case of penalties 
 imposed by municipal corporations under their by-laws. An amend- 
 ment has removed all question, and gives a justice jurisdiction of all 
 actions for penalties where the amount does not exceed twQ hundred 
 dollars.^ 
 
 § TIG. There are several statutory provisions which it is necessary 
 to observe in bringing an action for a penalty, viz : 
 
 1. The action must be tried in the county where the cause or some 
 part thereof arose, ^ * * when it is for the recovery of a penalty 
 or forfeiture imposed by statute, except that when it is imposed for 
 an offense committed on a lake, river or other stream of water, situated 
 in two or more counties, the action may be brought in any county 
 bordering on such lake, river or stream, and opposite to the place 
 where the offense was committed ; and if against a public officer or 
 person specially appointed to execute his duties, for an act done by 
 him in virtue of his office, or against a person who, by his command 
 or in his aid, shall do anything touching the duties of such officer.' 
 
 2. Upon every process issued for the purpose of compelling the 
 appearance of the defendant to any action for the recovery of any 
 penalty or forfeiture, shall be endorsed a general reference to the 
 statute by which such action is given, in the following fonn : " Accord- 
 ing to the provisions Of the statute regulating the rate of interest on 
 money," or "According to the provisions of the statute concerning 
 sheriffs," as the case may require, or in some other general terms 
 referring tosuch statute.* 
 
 3. "Where any act is prohibited by law under a penalty not exceed- 
 ing any given sum speciiied in such law, an action may be brought 
 for such speciiied sum ; and the jury or justice before whom the trial 
 shall be had, shall award such sum so specified to the plaintiff, or such 
 part thereof as shall be deemed proportioned to the offense.' 
 
 § 711. The Eevised Statutes provided a simple form of pleading 
 in actions for penalties, as follows :" " ( § 10.) In actions of debt 
 brought to recover any penalty or forfeiture given by any statute, it 
 
 ' Code, § 471. » 2 R. S. 483, § 15. 3 id. (Bank' 5th ed.) 
 
 " Code, § 58, sub. 8. 785, g 13. 
 
 ' Code of Procedure, §§ 8 and 124. " 2 R. S. 483. 8 id. (Banks' 5th ed.) 784. 
 * 3 R. 8. 481, §7. 3id.(Banka'5thed.)784. 
 
ACTIONS FOE PENALTIES. " 381 
 
 shall be snflScient, without setting forth the special matter, to allege 
 in the declaration, that the defendant is indebted in the amount of 
 such penalty or forfeiture, to the officer, person or body for whose 
 use the same is given, whereby an action accrued according to the 
 provisions of such statute, naming the subject-matter thereof, in the 
 following form : 'According to the provisions of the statute concern- 
 ing sheriff's,' naming the section, title and chapter of such statute, as 
 the case may require, or in some other similar terms referring to such 
 statute. (§ 11.) Whenever an action of assumpsit shall be brought 
 for the recovery of any penalty given by any statute, it shall be suffi- 
 cient, without setting foi'th the special matter, to allege in the decla- 
 ration, that the defendant being indebted in the amount of such 
 penalty, according to the provisions of such statute, referring to the 
 same as prescribed in the last section, undertook and promised to 
 pay the same. ( § 12.) If an action of trover be brought to recover 
 any goods or other thing forfeited by the provisions of any statute, 
 the declaration may allege that such goods or other things were for- 
 feited according to the provisions of such statute, referring to the 
 same as prescribed in the foregoing sections, and that the defendant 
 converted the same to his own use, without setting forth the special 
 matter. ( § 13.) To every declaration for a penalty or forfeiture, the 
 defendant may plead the general issue that he owes nothing, or that 
 he did not undertake and promise, as alleged in such declaration, or 
 that he is not guilty of the premises charged, as the case may 
 require, and may give in evidence under such plea, any special mat- 
 ter, which, if pleaded, would be a bar to such action, or discharge 
 the defendant therefrom, in the same manner and with the like effect 
 as if the same had been pleaded specially." The provisions of the 
 Code of Procedure, abolishing " all the forms of pleading heretofore 
 existing" (section 140), are modified by those of section 471, and 
 therefore, in actions to recover penalties which are given by statute, 
 it is sufficient to declare in the brief form provided in the above 
 statutes.^ 
 
 § Y12. The following provision of the Eevised Statutes relates to 
 the rights of the parties: "In any suit for a penalty or forfeiture, 
 brought by any person other than the party aggrieved, or other than 
 any public officer, if a former recovery, or acquittal, or other bar to 
 such action be pleaded, the plaintiff may reply that such recovery, 
 acquittal or bar was had by covin and fraud; and if such replication 
 
 ' 5 Abbott, 384. 6 id. 34.3. 33 Barb. 344. ' 
 
382 ACTIONS COMMENCED BY ATTACHMENT. 
 
 be confessed or established, the plaintiff shall recoTer in such actio% 
 notwithstanding such plea."^ 
 
 § 713. Upon executions issued upon judgments recovered for penr 
 alties or forfeitures incurred under the eleventh title of the twentieth 
 chapter of part first of the Kevised Statutes, entitled " Of fisheries, 
 generally, &c.," it is the duty of the justice tq, endorse the cause for 
 which the judgment was rendered, in which case if no goods or chat- 
 tels can be found to satisfy it, it is the duty of the constable to commit 
 the defendant to the jail of the county, and deliver to the keeper a 
 certified copy of the execution and endorsement by virtue of which 
 he shall detain him for a period not exceeding sixty days, without 
 allowing him the benefit of the liberties.* 
 
 IV. An action comm^noed by attachment op peopeett as pro- 
 vided ly stOitMe, where the debt or damages do not exceed tnjoo hvmdred 
 dollars. 
 
 % 714. The cases in which the statutes authorize the issuing of 
 attachment by justices of the peace, are as follows : 
 
 1. When, on the application of a creditor or his agent, it shall sat^ 
 isfactorUy "appear to the justice that a debtor has departed or is 
 about to depart from the county where he last resided, with intent to 
 defraud his creditors, or to avoid the service of any civil process, or 
 that he keeps himself concealed with the like intent.' 
 
 2. Whenever an execution upon the judgment recovered could 
 not be issued against the body of the defendant and the defendant 
 shall reside out of the county, he may be proceeded against by attach- 
 ment, returnable in not less than two nor more than four days from 
 its date.* 
 
 3. Whenever it shall satisfactorily appear to the justice that the 
 defendant is about to remove from the county any of his property 
 with intent to defraud his creditor, or has assigned, disposed of or 
 seei'eted, or is about to assign, dispose of, or secrete, any of his pro- 
 perty with the like intent, whether he be a resident of this state or not.* 
 
 § 715. It win be seen that the cases arising, under this clause of 
 the section declaring the jurisdiction of a justice, must necessarily 
 
 •3 E. S. 583, § 14 .3 id. (Baliks' 5tk * Laws of 1831, ch. 300, §§ 30, 31, 83, 
 
 ed.) 785, § 13. 33. 3 R. S. (Banks' Stli ed.) 463, |§ 313 
 
 » 3 B. 8. 251, § 143. 3 id. (Banks' 5tli to 314 inclusive, 
 
 ed.) 447, § 136. 'Laws of 1831, cli. 300, § 34. 8 R. S. 
 
 " 3 R. 8. 330, 1 26. 8 id. (Banks' 5th (Banks' 5th ed.) 463, § 316. 
 cd.) 430, § 34. 
 
ACTIONS UPON BONDS. 383 
 
 he actions arising upon debts previously existing, -whether in judg- 
 ment or on contract. An examination of the method of commencing 
 an action by attachment comes more properly in a subsequent part 
 of this work. 
 
 V. An action itpon a bond conditioned for the pa/yment of money 
 not exceeding two Jivrnd^ed dollars, though the penalty exceed that 
 sum, the judgment to ie given for the sum, actually due. Where tJie 
 payment shaM he m^de hy installments, an action may he hrought for 
 each instaH/ment as it shall hecorae due} 
 
 % 716. A hond is an instrument under seal, or, as it is frequently 
 termed in legal language, a deed by which the ohUgor or maker binds 
 himself, his heirs, executors and administrators to pay a certain sum 
 of money to another, called the obligee, either generally or at a par- 
 ticular time or times. If this be all it is called a single bond. This 
 is not a very common instrument, a penal hond being the one gener- 
 ally employed. The latter consists of a bond binding the obligor to 
 the payment of a certain sum which is called its penalty with a con- 
 dition written beneath it that, if the obligor pays certain moneys, as 
 therein expressed, or performs some particular act or service it shall 
 be void, but otherwise shall remain in force. In case the condition 
 be not performed, the bond is said to be forfeited. Under the 
 ancient forms of action, when the obligor brought his. action upon a 
 bond he obtained judgment for the amount of the penalty, but if 
 the condition was for the payment of money, was permitted only to 
 collect the true amount owing by it. Under the present system the 
 judgment should be given for the sum actually due.' If the princi- 
 pal is named in the body of the bond as one of its makers, still it 
 need not be signed by him in order to make it binding on the sure- 
 ties.' A different rule prevails in California and Indiana/ On the 
 other hand, a surety who is not named in the body of the bond, is 
 liable, if he signs it, to the same extent as though his name had been 
 inserted.' If the statute requires several names to a bond, and a 
 less number sign and deliver it, it is valid as against them.* A sub- 
 stantial compliance with a statute whicli requires a bond is all that 
 is necessary to make it binding.'' In Wisconsin, the judgment on a 
 penal bond is for the penalty, execution issuing for the amount reaUy 
 
 ' Code, § 53, BUM. 5. ♦ 14 Cal. 421. 22 Ind. 399. 
 
 ' Code, § 53, sub. 5. 19 How. Pr. R. ' 16 N. Y. 439. 21 Barb. 218. 
 
 388. 18 Abbott, 260. '37 Barb. 179. 
 
 ^3 Hill, 584. 42 Barb. 524. '4 Wis. 96. 
 
384 ACTIOIfS TTPON JUDGMENTS. 
 
 due.* The same rule also prevails in Elinois, where the judgment 
 also provides that the whole may be satisfied upon the payment of 
 the damages.' 
 
 VI. An action upon a stjuety bond, taken lyy them, though the 
 'penalty or amov/nt exceed two hundred dollars? 
 
 § Y17. The eases arising under this clause are not distinguishable 
 in their general character from those under ,the fifth subdivision of 
 the section. They only vary in amount. Surety bonds are required 
 to be taken in a variety of proceedings, as upon issuing attachments, 
 delivery of goods attached to claimants * upon adjournments,' and in 
 various other cases. 
 
 VII. An action on a judgment rendered in a court of a justice 
 of the peace, or of a justices or other inferior court, in a city, wJier^e 
 such action is not prohibited hy section seventy-one of the Code of 
 Procedure? 
 
 § T18. The limitation contained in section Yl of the Code, is as. 
 follows : " No action on a judgment rendered by a justice of 
 the peace, shall be brought in the same county within five years after 
 its rendition, except in case of his death, resignation, incapacity to 
 act, or removal from the county, or that the process was not personally 
 served on the defendant, or on all the defendants, or in case of the 
 death of some of the parties, or where the docket or record of such 
 judgment is or shall have been lost or destroyed." Where the judg- 
 ment comes under either of the exceptions, an action may be brought 
 upon it, as when the justice rendering it is dead, has resigned, is 
 incapable of serving as a justice, or has removed from the county, 
 where the process was not personally served on the defendant, or on 
 all the defendants, where some of the parties have died, or where the 
 docket is lost or destroyed. If the judgment has been docketed in 
 the county court, the leave of that court must be obtained before an 
 action is brought thereon.' 
 
 VIII. To TAKE AND ENTEK JUDGMENT ON THE CONFESSION OF A 
 
 Aeeendant, wh&re the amount confessed shall not exceed fioe hundred 
 
 ' 10 Wis. 499. ' 2 R. S. 239, § 76. 8 id. (Banks' 5th ed.) 
 
 = 25111.600. 27 id. SOS. ' 438, | 66. 
 
 •Code, 53, sub. 6. • Code, § 53, sub 7. 
 
 *2R.S.330,231,§§29,88. 3 id. (Banks' ' 32 Barb. 51. 
 5th ed.) 431, g§ 37, 31. 
 
ACnONB FOE ITKATJDS AND OF KEPLEVm. 385 
 
 dollars^ in the manrher prescribed iy article eight, Utlefov/r, cha/pteF 
 two of part three of the Rmised Statutes?- 
 
 % 719. The proYisions of tlie article referred to are as follows. The 
 judgment may he entered with such stay of execution as may be 
 agreed upon, upon compliance with the following requisites : 
 
 1. The defendant must personally appear before the justice. 
 
 2. The confession shall be in writing, signed by the defendant, and 
 filed with the justice. 
 
 8. If the judgment be confessed, for a sum exceeding fifty dollars, 
 the confession shall be accompanied by the afiBdavit of the defendant 
 and plaintifi^, stating that such defendant is honestly and justly 
 indebted to the plaintiff in the sum named in such affidavit, over and 
 above all just demands which he has against him, and that such con- 
 fession is not made or taken with a view to defraud any creditor.' 
 Eveiy judgment confessed without a compliance with these requisites 
 is void as against all persons, except a purchaser in good faith of any 
 goods or chattels, lands or tenements under it, and except the defend- 
 ant f and the statute provides a method of setting it aside by any 
 creditor, by an application to the county judge.* Further in regard 
 to these judgments will be found infra, §§ 1542, &c. 
 
 IX. An action foe damages foe featjd in the sale, purchase, or 
 exchange of personal property, if the damages claimed do not exceed 
 two hundred dolla/rs? 
 
 § 720. The subject of frauds in contracts generally, has been 
 treated in a former part of this work.° The party defrauded in a sale, 
 purchase or exchange, may either bring his action upon the contract, 
 or regard the contract annulled, and upon tendering what he has 
 received from the other party, demand the money or thing paid for 
 it, or he may bring an action directly for the injury he has sustained 
 by-the fraud. This action being for a wrong, when a judgment has 
 been recovered in it, an execution may be issued against the body of 
 the defendant. 
 
 X. Actions mat also be maintained to eecovee thi; possession 
 OF PEESONAL PEOPEETT CLAIMED.' This is Substantially the old action ' 
 of replevin, modified, to render it applicable to justices' courts, from 
 
 •Code, § 53, sub. 8. *Icl. §§ 116, 117 (107,108). 
 
 » 2 R. S. 245, §§ 113^ 114. 3 id. (Banks' ' Code, § 53, sub. 9. 
 
 5th ed.) 443, §§ 104, 105. ' Ante, §§ 76 to 80, 8§ 331, 364. 
 
 » Id. §115(106). . 'Code, §53, sub. 10. 
 
 49 
 
386 WHEN TITLE TO LAND IS IN QUESTION. 
 
 the proceedings for S' Claim and delivery of personal property," 
 under the Code. The statute is given in full, ante, .§ i. 
 
 § 721. The fifty-fourth section of the Code of Procedure, in exclud- 
 ing from the jurisdiction of a justice of the peace actions where the 
 title to real property shajl come in question, renders an examination 
 of the cases in which the title to real estate may come in question, 
 necessary. 
 
 § 722. ,A title is defined to be " the means whereby the owner of 
 lands hath the just possession of his property."^ There are several 
 stages or degrees of title to lands, recognized by law. These are 
 divided into a naked possession, a right of possession, a mere right of 
 property, and a mere right of property joined with actual possession.^ 
 The lowest and most imperfect is the naked possession or actual occu- 
 pation of the estate, which may happen in a variety of ways, without 
 any right of possession to, or right of property in the subject of con- 
 trdversy. But in the meantime, until some act be done by the rights 
 ful owner, to divest such possession, though it be wrongful, it is 
 prima facie evidence of legal title in the possessor, and if the defend- 
 ant mean to do away with this evidence, by showing the right to be 
 in another, he must interpose his title by his answer, and pursue the 
 necessary steps to oust the justice of his jurisdiction. If the defend- 
 ant do not do this, the justice will retain jurisdiction of the action, 
 and (the defendant will be precluded from urging the want of title in 
 the plaintiff.' Under the Code, the term "title" means "right of 
 possession," and that only.* 
 
 § 723. The Code of Procedure further provides as follows : " (§ 65.) 
 In every action brought in a court of a justice of the peace, where the 
 title to real property shall come in question, .the defendant may, either 
 with or without other matter of defense, set forth in his answer any 
 matter showing that such title wiU come in question. Such answer 
 shall be in writing, signed by the defendant or his attorney, and 
 delivered to the justice. The justice shall thereupon countersign the 
 same, and deliver it to the plaintifi". ( § 56.) At the time of answer- 
 ing, the defendant shall deliver to the justice a written undertaking, 
 executed by at least one sufiBcient surety, and approved by the justice, 
 to the effect that if the plaintiff shall within twenty days thereafter 
 deposit with the justice a summons and complaint in, an action in the 
 supreme court for the same cause, the defendant will, within twenty 
 
 '1 Ins. 345. "See Infra, §725. 
 
 = 3 Bl. Com. 195 to 199. ' 15 Abbott, 449. Also 6 Hill, 640, 
 
ACTIONS WHEEE TITLE TO LAUD 18 IN QUESTION. 387 
 
 days after sucli deposit, give an admission in writing of the service 
 thereof. "Where the defendant was arrested in the action before the 
 justice, the undertaking shall further provide that he will, at all times, 
 render himself amenable to the process of the court during the 
 pendency of the action, and to such as may be issued to enforce the 
 judgment therein. In case of failure to comply with the undertaking, 
 the surety shall be liable, not exceeding one hundred dollars. ( § 61.) 
 Upon the delivery of the undertaking to the justice, the action before 
 him shall be discontinued, and each party shall pay his own costs. 
 The costs so paid by either party shall be allowed to him, if he 
 'recover costs in the action to be brought for the same cause in the 
 supreme court. If no such aciion be brought within thirty days after 
 the delivery of the undertaking, the defendant's costs before the justice 
 may be recovered of the plaintiff. ( § 58.) If the undertaking be not 
 delivered to the justice, he shall have jurisdiction of the cause and 
 shall proceed therein, and the defendant shall be precluded in his 
 defense from drawing the title in question." ' The plaintiff may then 
 commence an action for the same cause in the supreme court. " ( § 59.) 
 If, however, it appear on the trial, from the plaintiff's own showing, 
 that the title to real property is in question, and such j;itle shall be 
 disputed by the defendant, the justice shall dismiss the action, and 
 render judgment against the plaintiff for the costs." ^ " (g 62.) If, in 
 an action before a justice, the plaintiff have several causes of action, 
 to one of which the defense of title to real property shall be inter- 
 posed, and as to such cause the defendant shall. answer and deliver an 
 undertaking, as provided in sections 55 and 56, the justice shall dis- 
 continue the proceedings as to that cause, and the plaintiff may 
 commence another action therefor in the supreme court. As to the 
 other causes of action, the justice may continue his proceedings."^ 
 
 § 724. Under the former statute, the language of whose restriction 
 was, "where the title to Icmd shall in any wise come in question^'"^ it 
 was held that where either a public or private right of way was in 
 question in the action, the suit must be dismissed, as involving a. 
 question of title, and the rule is the same under the Code.' If the 
 plaintiff seeks to recover on the ground of a naked possession of land, 
 the defendant may disprove his possession. Such evidence does not 
 draw the title in question, and the fact of possession is one which the 
 
 1 34 N. y. 453. ' 6 Wend. 465. 15 id. 338. 19 id. 373. 
 
 ■'43 Barb. 44. 6 HUl, 342. 34N.Y. 453. IE, D.Smith, 
 
 = See also, infra, §§ 1193, &c. 403. 30 How. Pr. R. 15. 37 Barb. 317. 
 
 * 2 K. 8. 336, § 4, sub. 3. 3 id. 433. 
 
/ 
 
 388 WHEK TITLE TO LAITD IS IN QTIESTIOIT. 
 
 justice may try.^ The defendant contracted to sell land to the plain- 
 tiff, and gave him possession, reserving a right to re-enter for non- 
 " ' payment of the purchase money ; upon a failure to pay he re-entered, 
 and the plaintiff brought his action for an unlawful entry. Upon these 
 facts appearing, it was held that the right of possession given to the 
 plaintiff by the contract was a mere license, and, the only question 
 turning upon its revocation, there was no title in question, and the 
 justice might entertain jurisdiction of the case.' "When, in an action 
 to recover damages for the bi^eaeh of an agreement to convey lands, 
 the only issue on the pleadings is whether an inchoate right of dower 
 in the wife of the defendant is a subsisting incumbrance, the title is' 
 not in issue.^ JSTor is it where, in an action for injuries from the bite 
 of a dog, the defendant alleges that the plaintiff, when injured, was in 
 a place wtere he had no right to be ; * nor where the plaintiff sues to 
 recover a tax paid by him, by mistake, dn the defendant's land, the 
 defendant's title to the land not being disputed on the trial.® In the 
 following cases it was held that the title was in issue: where the 
 complaint alleged that the plaintiff was the assignee of a lessor of a 
 lease in fee, that the defendant was the assignee of the lease, and that 
 by the assignment, the plaintiff became seized in fee of the demised 
 estate and the owner of the rent, for which the suit was brought, all 
 the allegations being denied by the answer ; ^ where an action was 
 brought substantially for waste, the complaint alleging a forfeiture, 
 and praying possession ; ' in an action where the defendant was 
 charged with falsely representing himself to have title to real estate, 
 and thereby obtaining money and goods, adenial being pleaded.* See, 
 also, mfra, § 1194, &c. 
 
 § Y25. The justice cannot dismiss the action under section 59 of the 
 Code, merely because the plaintiff gives in evidence a conveyance, as 
 a deed or lease of the land, but only where the title is disputed.' The 
 giving such evidence need not necessarily show that the title of real 
 property is in question, as where a lease is shown in order to maintain 
 • an action to recover rent, or a deed merely to show the performance 
 of a condition precedent, or otherwise, incidentally. It is only where 
 it appears from the 'plaintiff's showing that the title is in question, 
 that the justice is bound to dismiss it under that section. And though 
 
 '6 Hill, 537. 37 Barb. 214. 20 id. 311. ' 1 Hilton, 818. 
 21N. Y.466. ''25N.Y. 180. 
 
 ' 7 Barb. 70, and refs. ' 3 E. D. Smith, 235. 
 
 » 2 Duer, 632. • 1 Mich. 145. 
 
 * 3 B. D. Smith, 574. • 43 Barb. 44. 
 
ACTIONS AGAINST COEPOEATIONS. 389 
 
 it be material for the plaintiff to show hia title, yet if the defendant 
 neither objects to the evidence, disputes its effect, nor moyes for a 
 dismissal of the cause, the title is not disputed within the meaning of 
 the statute, and a judgment rendered for the plaintiff is valid.' This 
 rule is the same in Minnesota.^ 
 
 § 726. Cases' not infrequently arise where an action is brought for 
 cutting or taking timber. If the action be brought for wrongfully 
 cutting timber upon the plaintiff's land, and the defense is that the 
 defendant did not cut it, or that he was authorized by the plaintiff to 
 cut it, the justice may try the cause. But if the defense is that the 
 plaintiff is not the owner of the land, or that the defendant has the 
 title to it, or if, in an action for taking vines or timber from the 
 plaintiff' 's possession, the defendant claims the right to do so because 
 they were wrongfully cut upon his land, and were therefore his property, 
 he must, in order to make his defense, show in his answer that the 
 title to real estate will come in question, and oust the justice of his 
 jurisdiction, or he will be precluded from the defense.' 
 
 § 727. "Where an action is brought for injuries done to the plain- 
 tiff's unoccupied lands, and the plaintiff's possession is disputed, he 
 can only show a constructive possession to them, and this by proving 
 his title. This involves a question of title which the justice cannot 
 hear.* • 
 
 § 728. When title is in issue, the consent of the parties that the 
 justice try the cause does not restore jurisdiction to him.* 
 
 [§ 728a.j As the statutes and practice of other states in regard to 
 the question of title to real estate in justices' courts are diverse, 
 they are not referred to in this treatise, except incidentally. 
 
 § 729. "Where in an action tried before a justice upon an account, 
 the sum total of the accounts of both parties exceeded four hundred 
 dollars, and the justice rendered a judgment for the balance, his judg- 
 ment was held erroneous, and liable to be reversed, but not void." 
 
 § 730. In concluding this chapter it is proper to remark, that 
 formerly an action against a corporation could not be brought before 
 a justice of the peace.J . The rule is now changed. All actions 
 cognizable before a justice may be brought by and against all persons 
 
 ' 6 HUl, 271. Id. 44. Code, § 59. 35 * 8 Cowen, 115. 1 Wend. 466. 7 id. 
 
 N. Y. 180. 15 Barb. 96. 11 id. 390. 37 495. 34 N. Y. 453. 
 id. 314. 43 id. 353. • 6 Wend. 465. 
 
 « 8 Minn. 387. * Code, § 54, sub. 4-. 4 Denio, 370. 
 
 ' See 1 Code R. N. S. 173. 13 How. ' 5 John. 347. 7 id. 356. 
 Pr. R. 335. 
 
390 
 
 ON WHOM TO SEEVE PROCESS. 
 
 wlio sue or are sued in their own right, and by and against all town 
 and county oiScers, in their official character, and corporations, and 
 they may be brought by, but not against executors and adminis- 
 trators.^ In actions against corporations the Code of Procedure 
 provides, that the summons, which is issued in the same manner as 
 against natural persons, may be served by delivering a copy to the 
 president or other head of the corporation, secretary, cashier, treasurer, 
 or a. director or managing agent thereof; but the service can be made 
 in respect to a foreign corporation only when it has property within 
 the state, or the cause of action arose therein.^ A railroad eorporar 
 tion, whose road passes through two or'more counties, may be sued 
 before a justice in either county, provided the process can be served 
 on the proper officer in such county.^ A foreign coi-poration, where 
 it cannot be compelled to appear in a justice's court, may voluntarily 
 appear and submit to its jurisdiction, where the court has jurisdiction 
 of the subject-matter.* A managing agent is one whose agency is 
 general ; a baggage master is not such an agent, nor a mere ticket 
 seller.^ Kailroads are, however, also required to file, in the clerk's 
 offices of the respective counties through or into which their road 
 runs, a designation of some person, in each of these counties, upon 
 whom process issued by a justice of the peace may be served. If it 
 is not filed, and there are no officers residing in the county an whom, 
 by law, process may be served, the process may be served on any 
 local superintendent of repairs, freight agent, agent to sell tickets,. or 
 station keeper of such corporation." Another statute (Laws of 1855, 
 eh. 279 ; 2 R. S., Banks' 5th ed., 874) makes similar provisions. 
 
 1 2 R S. 336, 336. |§ 5, 55. 3 id. « 3 E. D. Smith, 38. 
 
 (Banks' 5th ed.) 437, 436, §§ 3, 53. Code, ' 5 How. Pr. R 183. 6 id. 308. '8 
 
 § 54, sub. 5. Laws of 1847, p. 646, Abbott, 437. 
 
 § 45. ' Laws of 1854, ch. 283, §§ 14, 15. 2 
 
 " Code, § 134. Laws of 1847, supra. R. S. (Banks' 5th ed.) 697, §§ 79, 80. 
 
 " 15 Barb. 650. 
 
CHAPTER III. 
 
 OF THE TIME OF COMMENCING ACTIONS. 
 
 § Y31. The Code of Procedure repealed all tlife statutory provisions 
 previously existing, in relation to the times for commencing actions, 
 saving actions already commenced, and cases where the right of 
 action had already accrued, and provided that civil actions can only 
 be commenced within the periods prescribed therein, " except where, 
 in special cases, a different limitation is prescribed by statute, 
 and in the cases mentioned in section 73; but the objection 
 that the action was not commenced within the time limited, can only 
 be taken by answer."^ Statutes of limitation, it is said, are to be 
 strictly construed.^ 
 
 § 732. The limitations which relate to actions which may be com-. 
 menced before a justice of the peace, are included in the following 
 extracts from the Code of Procedure. 
 
 " Within twenty years : 1. An action upon a judgment or decree 
 of any court of the United States, or of any state or territory within 
 the United States. 2. An action upon a sealed instrument.'" 
 
 " Within six years : 1. An action upon a contract, obligation, or 
 liability, express or implied, iexcepting those mentioned in section 
 ninety. 2. An action upon a liability, crfeated^by statute, other than 
 a penalty or forfeiture. 3. An action for trespass upon real property. 
 
 4. An action for taking, detaining or injuring, any goods or chattels, 
 including actions for the specific recovery of personal property. 
 
 5. An action for criminal conversation, or for any other injury to the 
 person or rights of another, not Jtrising on contract, and not herein- 
 after enumerated. 6. An action for relief, on the ground of fraud, 
 in cases which heretofore were solely cognizable by the court of chan- 
 cery, the cause of action, in such case, not to be deemed to have 
 accrued until the discovery by the aggrieved party of the facts con- 
 stituting the fraud."* 
 
 "Within ^Aree yea/rs: 1. An action against a sheriff, coroner, or 
 
 ' Code, §§ 73, 74 ' Code, § 9Q. 
 
 »35CaL634. *Id.§91. 
 
392 
 
 STATUTES OF LIMTT ATION. 
 
 constable, upon a liability incurred by the doing of an act in his 
 official capacity, and in virtue of his office, or by tbe omission of an 
 official duty, including the non-payment of money collected upon an 
 execution. But this section shall not apply to an action for an escape. 
 2. An action upon a statute, for a penalty or forfeiture, where action 
 is given to the party aggrieved, or to such party and the people of 
 this state, except when the statute imposing it prescribes a different 
 limitation."^ 
 
 "Within two years: 1. An action for libel, slander, assault, battery^ 
 or false imprisonment. 2. An action upon a statute, for a forfeiture' 
 or penalty to the people of this state."* 
 
 " Within one year : An action against a sheriff, or other officer, for 
 the escape of a prisoner, arrested or imprisoned on civil process."* 
 
 Within this statute, sub. 1. If a sheriff sells the property of B, 
 upon an execution against A, the action therefor must be brought 
 within three years.* 
 
 § 733. In an action brought to recover a balance due upon a mutual, 
 open, and current account, where there have been reciprocal demands 
 between the parties, the cause of action is deemed to have accrued 
 ■from the time of the last item proved in the account on either side.® 
 This class of accounts is such as exist where each party makes 
 charges against the other in his books, for property sold, services ren- 
 dered, or money advanced. A payment by one party upon an account 
 against him, and for which he has received a receipt, does not render 
 the account a mutual one.* Items in an account furnished within six 
 years, will not draw after them items before that time, so as to save 
 the account from the statute, unless it appear that there were also 
 iiems on the other sid*. That is, if there be mutual accounts, or in 
 other wordsj accounts where each party has charged items against the 
 other ; any one item, on either side, having accrued within six years 
 before the action, will draw after it both accounts and take the case 
 out of the statute, unless there appears a period of six years between 
 any two of the consecutive items. If there is such a lapse between two 
 consecutive charges, the account ceases to be an open one, as respects the 
 prior items.' In case there is a current account between two parties, 
 
 ' Id. § 98. 126. Also cases infra, in note 2, next page. 
 
 "Id. §93. 4 Nevada, 101. 
 
 > Id. § 94. '1 Sand. 230. 2 id. 318. 4 id. 313. 20 
 
 •18 Barb. 89. Wend. 73. 7 id. 333. 9 id. 126. 17 Cal. 
 
 ' Code, § 95. 594. 
 
 •15 Wend. 554. 85 Cal. 123. 80 id. 
 
STATUTES OF LIMITATION. 393 
 
 if one party buys an open account against tlie other, from a third 
 pai'ty, and holds it, without notice to, or recognition of its validity 
 from the debtor, it does not form a part of the current account, and 
 the statute runs against it in six years from the time it became due.^ 
 Items of debit for the contract price of work done, and credits for 
 payments do not make a case of reciprocal demands.^ And where all 
 the items were paid except one, the validity of which was disputed, 
 the statute runs against it.* If a balance of accounts is struck, the 
 statute begins to run on the balance from that time.* 
 
 § I34c. An action upon a statute for a penalty or forfeiture, given 
 in whole or in part to any person who will prosecute for the same, 
 must be conunenced within one year after the commission of the 
 offense ; and if the action be not commenced within the year by a 
 private party, it may be commenced within two years thereafter in 
 behalf of the people of this state, by the attorney-general, or the dis- 
 trict attorney of the county where the offense was committed.'^ 
 
 § Y35. The following general provisions as to the limitation of the 
 time for commencing actions are extracted at length from the Code 
 of Procedure, as they now provide for most of the questions which 
 will arise in practice, and as they vary the rules formerly existing 
 upon the subject in several important particulars. "(§ 99.) An 
 action is commenced as to each defendant when the summons is 
 served on him, or on a co-defendant, who is a joint contractor, or 
 otherwise united in interest with him. An attempt to commence an 
 action is deemed equivalent to the commencement thereof, within 
 the meaning of this title when the summons is delivered, with the 
 intent that it shall be actually served, to the sheriff or other officer 
 of the county in which the defendants, or one of them usuaily or 
 last resided : as if a corporation be defendant, to the sheri& or other 
 officer of the county in which such corporation was established by 
 law, or where its general business was transacted, or where it kept an 
 office for the transaction of business. But such an attempt must be 
 followed by the first publication of the summons, or the service 
 thereof within sixty days. ( § 100.) If, when the cause of action 
 shall accrue against any person, he shall be out of the state, such 
 action may be commenced within the terms herein respectively limi- 
 tedy after the return of such person into this state ; and if, after such 
 
 '4 Kern. 335. 'Id. 
 
 »5Bosw. 336. 13 Ind. 174. 17 Cal. •'SOCal. 136. 
 344. 'Code, §96. 
 
 50 
 
894 STATUTES OF LIMITATION. 
 
 cause of action shall have aiecrued, such person shall depart, from and 
 reside out of this state, the time of his absence shall not be deemed 
 or taken as any part of the time limited for the commencement of 
 Stieh action. (§ 101.) If a person entitled to bring an action" [men- 
 tioned in the extracts above given in section 732], " except for a pen- 
 alty or forfeiture, or against a sherifl" or other -officer, for an escape, 
 be at the time the cause of action accrued, either, 1, within the age 
 of twenty-one years; or 2, insane; or 3, imprisoned on a criminal 
 charge, or in execution Under the sentence of a criminal court, for a 
 term less than his natural life ; or 4, a married woman, the time of 
 such disability is not a part of the time limited for the commence- 
 ment of the action, except that the period within which the action 
 must be brought cannot be extended more than five years by any 
 Such disability, except infancy ; nor can it be so extended in any case 
 longer than one year after the disability ceases. (102.) ' If a person 
 entitled to bring an action die before the expiration of the time lim- 
 ited for the commencement thereof, and the cause of action survive, 
 an action may be commenced by his representatives, after thq expira- 
 tion of that time, and within one year from his death. If a person 
 against whom an action may be brought, die before the expiration 
 of the time limited for the commencement thereof, and the cause of 
 action survive, an action may be commenced against his executors or 
 administrator after the expiration of that time, and within one year 
 after the issuing of letters testamentary or of administration. (§ 103.) 
 "When a person shall be an alien subject or citizen of a country at 
 war with the United States, the time of^ the continuance of the war 
 shall not be a part of the period limited for the commencement of 
 the action. (§ 104.) If an action shall be commenced within the 
 time prescribed therefor, and a judgment therein be reversed on 
 appeal, the plaintiff, or, if he die and the cause of action survive, 
 his heirs or representatives may commence a new action within one 
 year after the reversal. (§ 105.) When the commencement of an 
 action shall be stayed by injunction or statutory prohibition, the ' 
 
 time of the continuance of the injunction or prohibition shall not be ' 
 
 part of the time limited for the commencement of the action. . | 
 
 (§ 106.) No person 'shall avail himself of a disability, unless it, 
 existed when his right of action accrued. (§ 107.) When two or 
 more disabilities shall co-exist at the time the right of action accrues, ' 
 
 the limitation shall not attach until they all be removed. (§ 108.) 
 This title shall not affect actions to enforce the payment of bills, d 
 
 notes, or other evidences of debt issued by moneyed corporations, or i 
 
ACKNOWLEDGMENTS IN WRITING. 395 
 
 issued or put in circulation as money. (§ 109.) This title shall hot 
 affect actions against directors or stockholders of a moneyed corpora- 
 tion, or banking associations to recover a penalty or forfeiture 
 imposed, or to enforcie a liability created by law ; but such actions 
 must be brought within six years after the discovery by the aggrieved 
 party, of the facts upon which the penalty or forfeiture attached, or 
 the liability was created. (§ 110.) ISTo acknowledgmient or promise 
 shall be sufficient evidence of a new or continuing contract, whereby 
 to take the case out of the operation of this title, unless the same be 
 contained in some writing signed by the party to be charged thereby ; 
 but this section shall not alter the effect of any payment of principal 
 or interest." ' 
 
 [§ ISoa.] The acknowledgment required by this last (110th) section 
 of the Code, when not express, and where a promise is to be raised 
 by implication of law from the acknowledgment, must contain an 
 unqualified, voluntary and direct admission of a present subsisting 
 debt, which the party is liable and willing to pay. It must also be 
 made to the creditor, or to some one acting in his behalf. If made 
 to a stranger, it is not sufficient, nor is it if it is to pay when able, 
 unless ability is proved.^ Under a similar statute in England, it is 
 held that this new promise must be signed by the party himself, and 
 not by his agent, although duly authorized.^ But this is doubtful ; 
 the contrary is implied in at least one case in New York.^ It is 
 not necessary that it be subscribed. It is sufficient if the promissor's 
 name appears anywhere therein, if written by him.* If the debt is 
 not sufficiently described in the writing, it^'may be identified by parol 
 evidence.^ If the writing has been lost, parol evidence may be gi^ren, 
 as in other similar cases, of its contents.* It is sufficient evidence of 
 a promise that the debtor includes the debt in question in his'inventory 
 of debts, sworn to by him, for the purpose of obtaining an insolvent's 
 discharge ; or in his assignment for the benefit of his creditors,' or that 
 he includes notes held' by a creditor, in a statement of his afi'airs 
 made at that creditor's request;* or that a bank includes a certain 
 amount as unclaimed deposits, belonging to A., in its statement of 
 such matters made in pursuance of a statute.' If the cause of action 
 
 ' 4 Seld. 363. 5 id. 85. 18 N. Y., 560. ' 41 Barb. 495. See 1 Daly, 186. 
 41 Barh. 495. 44 id.. 489. 5 Bosw. 326. ° 7 Bing. 163. 
 « 3 Bing. K C. 776. 3 Bam. & Ad. 399. ' 3 Cowen, 159. 38 Hott. Pr. E. 373. 
 » 10 Bosw. 133. 18 Abbott, 305. 
 
 ' 3 J. Scott, N. S. 789. 15 Abbott, 377. ' 3 J. Scott, N. 8. 789. 
 
 » 17 Wend. 514. 
 
396 ABSENCES FEOM THE S^ATE. 
 
 was barred before the adoption of the Code (although but few, if any, 
 
 of such cases can now exist) it is proper to add that a written promise, ) 
 
 under this section, is required as in other cases.^ If the cause of action 
 
 was still subsisting at the time, and not barred, a parol promise is -. 
 
 SuflBcient.' 
 
 § 736. The one hundredth section of the Code of Procedure, above 
 given, is similar in its language to a provision of the Eevised Statutes,* i 
 
 That section was variously construed by the courts, until it was finally 
 settled by the court of appeals, following decisions in the supreme 
 court, superior court, and court of chancery, that the clause relating 
 to the departure of the debtor from the state applies to cases where tha ' 
 
 debtor regides otit of the state when the cause of action accrues, and sub- 
 sequently comes into the state, as well as to cases where he is a resident ij, 
 of the state at such time, and that successive absences of the debtor from f 
 the state may be accumulated and the aggregate deducted.* Further | 
 decisions on this general subject will be given, mfra, § HOI. If a 
 resident of the state goes therefrom, after the debt is due, and dies 
 without returning to the state, the statutexonstitutes a bar to an action 
 against his administrator for the same after six years from the time 
 when the debt became due, excluding the time from the departure of 
 the debtor until eighteen months after his death.' But if he resides 
 out of the state when the cause of action accrues, and until his death, 
 the statute commences only from the titoe of issuing letters in this 
 state.* A temporary absence from the state, without change of resi- 
 dence, as on journeys, does not prevent the running of the statute.' 
 
 § 131. The departure and absence of one joint and several debtor i 
 
 does not stop the running of the statute. To have that effect all the I 
 
 joint debtors must go without the state.* Neither does a judgment I 
 
 against j(5int debtors stop the running of the statute against one not I 
 
 served with process, nor prevent him from taking advantage of the I 
 
 fact that the demand was barred before the first suit was brought, or ! 
 
 before the action was commenced against him upon the judgment.' ? 
 
 § 738. One of two joint makers of a promissory note cannot, after 
 it is barred by the statute, revive the indebtedness as against the other 
 by any acknowledgment or promise.^" 
 
 > 3 Kern. 635. 36N.Y. 88. • 3 Beld. 134. 
 
 " 41 Barb. 612. 18N.Y. 558. -34 Barb. 331. 
 
 » 3 K. S. 397, § 37. '1 Denio, 445. 6 Seld. 447. 
 
 *6Seia.'96. 33N. Y. 473. 5 Denio, "4 Denio, 56. 
 
 533. 3 Barb. Ch. 477. 3 Sand. 518. "3 Corns. 533. 
 » 8 Seld. 61. i 
 
' PEESTTMPTION OF PAYMENTS. 397 
 
 § 739. Prior to the Code of Procedure, an indebtedness might be 
 revived by any promise to pay it made within the period fixed by the 
 statute of limitations, or by an acknowledgment of the existence of 
 the debt, from which a promise to pay might be fairly implied. A 
 paymfent made by the debtor within the period, was sufficient to show 
 such an acknowledgment, and implied promise to pay the balance. 
 The Code of Procedure, while requiring aU such promises to be in 
 writing, in order to render them valid, has excepted the implied 
 promise arising from payment of principal or interest.^ A payment, 
 therefore, within six years, will revive a debt which would otherwise 
 be barred by the statute. 
 
 § 740. In an action by a subsequent endorser against prior endorsers, 
 to recover the amount he has been held to pay, the real cause of action, 
 though it is on the note itself, is for money paid for the use of the 
 defendant, and the statute begins to run from the payment, not from 
 when the note fell due.^ But where the payee of a promissory note 
 endorsed it and negotiated it, and being charged as endorser, was 
 sued upon it, three days before the statute of limitations barred it, 
 and after the statute had run, paid the note, and brought his action 
 iagainst the maker for the money paid, it was held that his remedy 
 was upon the note alone, and the statute barred a recovery upon that.^ 
 
 § 741. By the Eevised Statutes it was provided that judgments 
 and decrees of courts, of this or other states, or the United States, 
 should be presumed to be paid and satisfied after the expiration of 
 twenty years, from the time of the signing and filing such judgment 
 or decree ; but in any suit at law or in equity in which the party 
 against which such judgment or decree was rendered, or his heirs or 
 personal representatives 'shall be a party, such presumption might be 
 repelled by proof of payment, or of written acknowledgment 6f 
 indebtedness, made within twenty years, of some part of the amount 
 recovered by such judgment or decree ; in all other cases it should 
 be conclusive. It was also declared, that after the expiration of 
 twenty years, from the time a right of action should accrue upon any 
 sealed instrument for the payment of money, such right should be 
 presumed to have been extinguished by payment ; but such presump- 
 tion might be repelled by proof of payment of some part, or by 
 proof of a written acknowledgment of such right of action within 
 that period.* These provisions were held to be prospective merely, 
 
 'Code §110 » 8 Barb. 171. 
 
 neBirlm. • a r. 8.301, §§46, 47. 
 
398 ACTIONS ON JUDGMENTS AND SEALED INSTRUMENTS. 
 
 and that where a judgment or debt upon a sealed instrument existed 
 before the statute was passed, only the presumption of payment which 
 existed at common law affected it ; that that presumption might be 
 repelled by any competent evidence, and that a payment or written 
 acknowledgment was unnecessary.^ Probably, from the lapse of time, 
 no suits can now arise on such claims. _ If they do, the rule will be 
 that the presumption of payment would be repelled by any proof 
 showing that the judgment or sealed instrument has not been paid. 
 The question of payment would be one of fact. Judgments and 
 sealed instruments which date their existence after the Eevised 
 Statutes became a law, and prior to the Code of Procedure, will con- 
 tinue subject to the provisions of the Ee vised Statutes here examined.^ 
 
 '13 Wend. 490. 6 Seld. 170. » See also § 1096 infra. 
 
CHAPTER IV. 
 
 OF THE PARTIES TO A CIVIL ACTION. 
 
 § 742. (1.) In actions on cont/ract. Prior to the adoption of the 
 Code of Procedure actions upon contract, with a few exceptions, 
 were required to be prosecuted in the name of the person to whom 
 the contract was made. The exceptions to the rule arose in the case 
 pf bills of exchange and negotiable promissory notes, and in a few 
 other cases provided by statute. The Code of Procedure has 
 changed the rule, and requires that every action must be prosecuted 
 in the name of the party in interest, except as hereafter stated, but 
 that the section shall not be deemed to authorize the assignment of a 
 thing in action not arising out of contract ; the exceptions are, that 
 " an executor, or administrator, a trustee of an express trust, or a 
 person expressly authorized by statute, may sue, without joining with 
 him the person for whose benefit the action is prosecuted. A trustee 
 of an express trust, within the meaning of this section, shall be con- 
 strued to include a person with whom, or in whose name, a contract 
 is made for the benefit of another," and that when a married woman 
 is a party her husband must be joined with her, unless the action 
 concerns her separate property, or is between herself and her husband, 
 when she may sue or be stied alone.^ It will be impossible to 
 enumerate all the cases which have been decided under these pro- 
 visions. Some of them, and the leading principles which control, 
 will be found in the succeeding sections. 
 
 § T4-3. Actions upon cont/ract may be brought by or against any 
 natural person not under a disability created by law. Thus an infant 
 may bring an action upon^ contract.* He is, as a rule, under a dis- 
 ability to make an express contract, and is therefore not liable in an 
 action upon one. But he may be sued upon an implied contract for 
 necessaries furnished to him.' "When he is a party to an action he 
 must appear by guardian.* The committee of a lunatic or habitual 
 
 ' Code, §§ 111, 113,' 114. ' 1 Denio, 460. 3 Sand. 306. 
 
 " 3 R. 8. 445, § 1. 3 id. (Banks' 5th * Code, § 115. See infra, §§ 934, 
 ed.) 745. 29 Barb. 160. 935. 
 
400 BY WHOM ACTIONS ON CONTEACTS TO BE BROrGHT, 
 
 drunkard may bring an action for a debt due liim, either in the name 
 of the lunatic or drunkard, or his own.* This statute provides that 
 receivers and committees of lunatics and habitual drunkards may sue 
 in their own name " for any debt, claim or demand transferred to 
 them, or to the possession or control of which they are entitled as 
 such receiver or committee." In all cases not covered by this statute, 
 the action Tnust be in the name of the lunatic or drunkard,' as actions 
 for money had and received by a defendant for the lunatic, or by the 
 lunatic lent and advanced to him ;^ if the committee receives notes, 
 he may sue on them in his own name, and without describing himself 
 as committee.* If no committee has been appointed, the lunatic, in 
 all cases, sues in his own name. And so he would in every case, in 
 all actions for torts, for they are not embraced in the statute. 
 
 [§ 743a.J Consignees of goods and holders of biUs of lading maj 
 maintain actions against a carrier for loss of goods, if they have made 
 advances ; ^ a carrier may bring an action in his own name for an 
 injury to the property intrusted to him to carry ; ® a note payable or 
 endorsed to A, as " cashier, «fec.," may be sued by his bank.' 
 
 As to what causes of action may be assigned, the decisions are 
 numerous. The general rule is, that whatever cause of action would 
 survive, and go to the personal representatives in case of death, may 
 be assigned, and that whatever would not, cannot be.^ Under this 
 rule, causes of action for injuries to property, or for its conversion;' 
 against k common carrier for loss or injury to goods intrusted to 
 him;"" for money lost in gaming;" against a sheriff for neglecting 
 to arrest ; *^ for negligently setting fire to grass, hay and fences ; ^ for 
 negligently killing a yoke of oxen ; " against an innkeeper for ijxoney 
 stolen from a guest,*' and other similar causes, may be assigned. But 
 such as do not survive, cannot be. Such causes are those for injuries 
 to the person;** where false and fraudulent representations are made 
 as to the solvency of the vender of merchandise," and similar cases. 
 
 ' Laws of 1845, ch. 113, § 3. 3 R. S. '3 Corns. 393. 2 Kem. 623. 34 Barb. 
 
 (Banks' Sth ed.) 135, § 11. 383. 86 id. 270. 88 id. 574. 
 
 " 8 Barb. 533. " 17 N. Y. 466. 30 id. 594. 38 Barb. 
 
 n Hill, 97. 605. 38 id. 574. 
 
 « 13 How. Pr. R. 387. "19N.Y. 36. 48 Barb. 364. 
 
 " 3 Corns. 333. 38 Barb. 382 » 88 Barb. 18. 
 
 • 38 Barb. 574. " 35 How. Pr. R. 285. 
 
 ' 39 N. T. 619. » 33 Barb. 110. 
 
 ' 1 Seld. 347. 3 Kem. 835. 23 Barb. » 4 E. D. Smith, 88. 
 110. 34 id. 330. 36 id. 270. "4Duer, 74. 7 How. Pr. R. 493. 
 
 " 3 Kern. 322. 
 
ACTIONS AGAmST MAEEIED WOMEN. 401 
 
 The assignment may be without any consideration whatever* and 
 will he sufficient if it vests the property in the assignor, as under an 
 assignment for the benefit of creditors.^ 
 
 § 744. Where one of two plaintiffs in a judgment has become 
 insolvent and assigns his property for the purpose of obtaining a 
 discharge under an insolvent act, an action upon the judgment 
 should be brought in the name of the solvent partner and the 
 assignee.^ 
 
 § 745. At the common law a husband and wife must join in an 
 action upon a claim due to the wife before marriage,^ and for a per- 
 sonal injury to her ; and no action could be maintained by a wife 
 without joining her husband. In some cases the action for arclaim 
 of the wife might be brought by the husband and wife, or by the 
 husband alone, as on a covenant, obligation or promissory note made 
 after marriage to the wife alone, or to the husband and wife,' "Where 
 the action was brought by both it was necessary to show how the 
 wife had an interest in it.^ The recent statutes in behalf of married 
 women have changed these rules in many particulars, as will be seen- 
 infra, sections 1029, &c. In addition to these statutes and the pro- 
 \'isions of the Code given supra, section 742, the Code (sections 117, 
 118) provides that "All persons having an interest in the subject of 
 the action, and in obtaining the relief demanded, may be joined as 
 plaintiffs, except as otherwise provided in this title ;" and that "Any 
 person may be made a defendant, who has or claims an interest in 
 the controversy, adverse to the plaintiff, or who is a necessary party 
 to a complete determination or settlement of the question involved 
 therein." 
 
 § 746. In like manner, actions may be brought by or against cor- 
 porations, which, in law, are deemed artificial persons. They may 
 also be brought by and against the supervisors of a county, by loan 
 officers and commissioners of loans of a county, by county superin- 
 tendents of the poor, by supervisors of towns, by overseers of the 
 poor of the several towns, by town superintendents of common 
 schools, by commissioners of highways and by trustees of school dis- 
 tricts upon any contracts lawfully made with them or their prede- 
 cessors in their official character, to enforce any liability or any duty 
 enjoined by law to them or the bodies they represent, and to recover 
 damages for injuries done to the property or rights of such officers 
 
 ' 14 Barb. 533. 27 id. 178. 38 id. 594. * 1 Cli. PI. 18, 19. 
 '30 Barb. 389. ' • 10 John. 49. 13 Wend. 371. 
 
 ' 33 "Wend. 63. " 2 Caines, 331. 
 
 51 
 
402 ACTIONS AGAmST JOINT-CONTKACTOES. 
 
 or the bodies they represent. In these cases the actions are bronght 
 hj them individually, specifying in the process and pleadings the 
 name of their respective offices.'^ The pleadings must_ also contain 
 the proper averments to show their official character.^ They may 
 also be brought against counties and towns. "When bronght against 
 a county the board of supervisors of the county is named as defend- 
 ant ; when against a town it is sued by its name.^ 
 
 §747. In actions upon contract all the parties interested in it as 
 joint owners, assignees or trustees, should 'be named as plaintiffs, 
 ,and in like manner all the persons jointly bound by the contract 
 should be named as defendants. So, where an injury has been done 
 to property held by joint tenants or tenants in common, or where it 
 has been taken or detained, the action must be brought in the name 
 of all the joint owners.* Under this rule, where several own pro- 
 perty, but it is held in the name of one of them for convenience, 
 and he sells Ht in his own name for the benefit of all to one who is 
 ignorant of the joint ownership, an action for it can and probably 
 must be brought in the names of all the owners.^ The rule, how- 
 ever, does not require an executor or administrator, or the trustee of 
 an express trust, or a person expressly authorized by statute to sue, to 
 join with him the person for whose benefit the action is prosecuted f 
 and in the case of a dormant partner it is necessary that he be 
 joined, when the firm is sued as a defendant.' And so, if joint debtors 
 reside in different states, they may be sued separately in the states 
 having jurisdiction of their respective persons and property, and the 
 one suit or judgment therein is no bar to the other.* 
 
 § 748. In case one or more of the joint owners of the contract or 
 claim has died, the action must be brought in the names of the sur- 
 vivors, without joining the representatives of the deceased, and on 
 the death of the last survivor his executors or administrators must 
 sue.' Where executors or administrators bring an action, all to 
 whom letters have been issued must join." They may bring an 
 action for wrongs committed to the property, rights or interests of 
 
 ' 3 B. S. 473, §§ 92, «3, 90. 3 id. (Banks' ' 3 Cowen, 84. 4 Wend. 638. 19 id. 
 
 5th ed.) 774, §§105,106,109. 36 Barb. 893. 535. lBosw.28. 80N.Y.374. 3 Keyes, 
 
 " 19 Barb. 179. 454. 18 Dl. 37. 4Duer,416. 
 
 » 3 R. S. 473, § 95. 3 id. (Banlcs' 5th « 39 Barb. 549. 
 
 cd.) 774, § 108. ' "1 John. 34. Gra. Pr. 60. 1 Chit. PI. 
 
 • See Code, § 119. 13. 31 lU. 354. 1 Minn. 169. 
 
 " 45 Barb. 171. "■ Laws 1838, ch. 149. 3 R. B. (Banks' 
 
 " Code, § 113. 5th ed.) 201, § 3. 
 
ACTIONS BETWEEN PAETNEEB. 403 
 
 their testator or intestate during his lifetime, and may be sued for 
 the waste, destruction, taking or conversion of another's property by 
 their testator or intestate.* The provision does not extend to injuries 
 to the person of the plaintiff committed by the testator or intestate, 
 ifer for injuries to the person of the testator or intestate. 
 
 § 749. An action upon joint contract should be brought against all 
 the parties to it if living, and, if any of the parties to it in default are 
 dead, against their survivors. If the contract was made by an agent 
 who discloses the name of his principal, no action lies against him 
 upon it unless it appear that he had no authority from his principal 
 to make it, in which case he is personally liable as if he had made it 
 in his own name.* 
 
 § 750. K the contracting party in default be dead, the action must 
 be brought against his personal representati/oes, by which tenn is 
 meant either his executors or administrators. If some of these be 
 dead the action should be against the survivors or survior.* In neither 
 of these cases can a justice of the peace entertain jurisdiction.* 
 
 § 751. One partner cannot bring an action in a justice's court 
 against his copartner in relation to the partnership transactions, 
 except upon a settlement of the partnership accounts and' balance 
 struck, upon which an express promise to pay has been made. In 
 this case a justice may entertain an action upon the express promise.^ 
 If, however, two persons enter into an agreement each to advance 
 certain moneys, or to perform certain services in a partnership or 
 joint adventure, either may bring an action at law against the other 
 for his neglect to perform his part of the agreement, and if the 
 damages claimed are within his jurisdiction, a justice has cognizance 
 of the cause.^ Such an action may be brought for a breach of the 
 copartnership articles in dissolving them before the period limited.'' 
 
 § 752. If the contract is joint and several, the action may be 
 brought against . all of the contracting parties in default, or against 
 any one of them severally. "Where there are a number of persons 
 named as contractors they will be deemed joint contractors unless it 
 is otherwise expressed in the contract.^ If, however, a promissory 
 note be drawn, " I promise to pay, &c.," and subscribed by two or 
 
 ' 2 R S. 114, §§ S and 6. 3 id. (Banks' ' 16 Wend. 601. See 19 Barb. 196. Ante, 
 
 5th ed.) 303. § 310. 
 
 ns John. 58. 15id.l. Ante, § 169. « 34 Wend. 153. 35 id. 450. 
 
 'llJohn. 18. 1 Nevada, 333. '6Seld. 489. 
 
 * Code, § 54, sub. 5. ° See 13 Cal. 31. 
 
404- 
 
 more persons, it is held to be a joint and several npte,^ If a partner 
 njakes a note which, in its terms, is joint and several, and signs thp 
 partnership name thereto, he may he sued upon it, alone, without 
 joining the other partner.^ 
 
 § Y53. If the action be upon a joint contract, it should be brought 
 against all the parties liable upon it, and if it is not so brought, the 
 want of proper parties will be a good answer.' If, however, the want 
 of proper parties be not set up in the answer, it will be too late to 
 make the objection at the trial, and if the contract is there proved 
 to have been made by the defendants and other persons as joinj; 
 contractors, it wUl be sufficient to warrant a recovery against the 
 defendants named.* 
 
 § 754. Formerly, if too many persons were made defendants, when- 
 ever the fact appeared, at any stage of the action, it was a fatal 
 objection to a recovery by the plaintiff.' The difficulty in actions in 
 courts of record is obviated by the Code of Procedure. There, any 
 person may be made a defendant who has or claims an interest in the 
 controversy adverse to the plaintiff,^ and judgment may be given for 
 or against one or more of several plaintiffs, and for or against one of 
 several defendants. But that section is not expressly made applicable 
 to justice's courts, and no provisions seem to do so by implication, 
 and, therefore, the ancient rule appears to govern in a justice's court.' 
 
 § T55. At the common law, when a single woman who was indebted 
 to any person was married, her husband became liable to pay the 
 debt, and must be joined with her as defendant in an action brought 
 upon it.^ If, however, he should die, his executors were not bound, 
 and the wife alone could be sued.^ If the action were commenced 
 against her before the marriage, it might, after the marriage, have been 
 prosecuted without any change of parties." The debt remained due 
 from the wife, and the husband, so long as his relation to her con- 
 tinued, was made a party on account of his liability for her debts, and 
 judgment against him in an action for her debt before marriage, in 
 which she was not made a party, might be reversed for error. And 
 the rule was so rigid that a promise by the husband to pay his wife's 
 
 ' 7 Mass. 58. ° Code, § 118. 
 
 ' 35 Barl). 55. ' 11 How. Pr. R. 140. 17 id. 313. See 
 
 ' 1 Ch. PI. 47. 4 Kern. 465. 38 Barb. 19 Barb. 666. Code, § 64. 
 
 603. 18IU. 37. 3Cal. 465. = 1 Chit. PI. 46, 48. 
 
 n Bam. & Aid. 334. 33N.Y. 685. 19 » Id. 67. 13Ind.44. 
 
 Barb. 666.' 16 IlL 840, 369. " 3 Cowen, 581. 
 
 ' 3 John. 313. See 5 "Wis. 345. 
 
ACTIONS FOE WRONGS. 405 
 
 debt contfacted before marriage, was held void for want of considera- 
 tion, and notwithstanding it, the wife must be joined with him in an 
 action upon the indebtedness.^ If, however, an express promise in 
 writing were made upon some new consideration, as forbearance, it 
 would be valid. A recent statute, in New Yort,^ has changed this 
 rule, and rendered a husband .liable for his wife's debts contracted 
 before marriage only to the extent of the property received from her. 
 This statute is given, infra, section 1032.* 
 
 § T56. By the "one hundred and twentieth section of the Code of 
 Procedure, it is provided that "Persons severally liable upon the 
 same obligation or instrument, including the parties to bills of 
 exchange and promissory notes, may all or any of them be included 
 in the same action at the option of the plaintiff." This changes the 
 old rule, so far as written agreements are concerned (these not 
 evidenced by a Writing not being embraced by this section*), under 
 •which a plaintiff was bound to treat a joint and several contract as 
 wholly joint or' wholly several ; that is, he could not bring a suit 
 against two parties who were bound by a joint and several agree- 
 ment,^ and permits an action to be brought against any one or more 
 of them, or the whole number.* It also allows parties whose contract 
 is not identical, to be joined as defendants, provided they have signed 
 or are parties to the same agreement, as a lessor, and one who has 
 guaranteed the performance of the lessor's covenants.' But if the 
 separate undertaking of the surety is contained in a different instru- 
 ment, the principal and surety cannot be joined.^ 
 
 § 757. Actions for wrongs. All persons natural as well as coi-po' 
 rations,' may be parties in actions for wrongs. Thus an infant,"" a 
 mamed woman, an idiot or a lunatic, may be either plaintiff or 
 defendant in such an action, subject to the rules in relation to their 
 appearance by guardian, husband or committee, which are provided 
 by tlie statute.-'^ 
 
 § 758. The action must m general be brought in the name of the 
 
 1 8 John. 149. Pr- 218. 10 Iowa, 326. See also 4 Seld. 
 
 "Laws of 1853, chap. 576. 3 R. S. 207. , Code of Ohio, § 38. 35 Cal. 530. 10 
 
 (Banks' 5th ed.) 341, §§ 85, 86. Ind. 174. 
 
 » See, on this general question, 13 Ind. " 3 Hill, 531. 3 Den. 433. 34, N. T. 
 
 44. 4 Greene (Iowa) 185. 30. 
 
 * 38 Barb 616. " 2 R- S. 445, § 1. 3 id. (Banks' 5th 
 = 6 Cal. 176. 9 Mich. 380. ed.) 745. '31 Wend. 615. 38111.145. 43 
 
 • 38 Barb. 638. 11 How. Pr. 569. Mo. 119. 
 
 ■< 33 N. y. 286. " 1 Ch. PI. 86. 
 
 « 10 Barb. 63*8. 34 id. 39. 11 How. 
 
406 PAETIE8 TO AOTIOHS FOE WEONGS. 
 
 person whose legal interest is affected thereby.^ Thus for a wrong 
 to the person of an infant, the action must be brought in his name, 
 but for an injury to his real estate, it may be brought by his guardian 
 in socage.* An action for property levied on by a deputy sheriff, 
 is not brought by him but by the sheriff.' A bailee may bring 
 an action for an injury to the ^bailed property, while in his posses- 
 sion.* 
 
 § 759. Where two or more persons have alright to any property 
 wrongfaUy injured or converted, whether they hold it as joint tenants 
 or tenants in common, the action for the wrong should be brought in 
 their joint names.' The omission to join aU the proprietors could 
 only be taken advantage of by a plea in abatement under the ancfent 
 system of pleading, and if hot pleaded in abatement, couM be 
 objected at the trial only for the purpose of having an apportion^ 
 ment of damages.* This rule seems unaffected by the Code of Pro- 
 cedure, excepting by the provision that " if the consent of any one- 
 who should have been joined as a plaintiff cannot be obtained, he 
 may be made a defendant, the reason thereof being stated in the 
 complaint," ' and that now the defense is by answer, and may be,^ 
 joined with any defense on the merits.* But where the undivided 
 interest of a plaintiff in a chattel is converted, as where he owned 
 three-fourths of a ship, and the rights of his co-proprietor are not 
 interfered with, he might, at common law, bring his action for his 
 share of the ship and recover ; and in this case the omission to join 
 his co-proprietor could not be objected by plea in abatement, or as a 
 defense, for the wrong is not to the joint owners, but a wrong to one 
 of them not affecting the other.' If two tenants in common bring an 
 action for the conversion of their joint property, one cannot release 
 or discharge the action so far as to defeat the rights of the other, who 
 may continue to prosecute the action in both names for his own 
 share.^" 
 
 § 760. The joinder as plaintiffs of persons who were not interested 
 in the subject-matter of the action, could be taken advantage of at 
 any time before the cause was finally submitted.^^ The Code of 
 
 • Code, § 111. • 1 John. 471. 6 id. 108. 8 id. 151. 
 " 1 R. 8. 718, §§ 5, 6. 3^id. (Banks' 5th 1 "Wend. 380. 29 Barb. 120. 
 
 ed.)2. 17 Wend. 75. ' Code, § 119. See 19 Barb. 666. 
 
 = 35 Barb. 630. " 4 Kern. 465. 21N.Y. 399. 10 How. 
 
 • 48 Barb. 339. Pr. R. 164. 
 
 ' 1 Chit. PI. 54. 13 John. 286. 15 id. " 4 Camp. 273. 
 479. Code, § 111. " 39 Barb. 130. 
 
 " Gra. Pr. 94, 95. 
 
PAETIES TO ACTIONS FOE WE0N6S. 407 
 
 Procedure probably bas not varied tbe rule in actions brought in 
 justice's courts.* 
 
 § 761. "Where one of several persons jointly entitled to damages 
 for a wrong dies, the action should be brought in the name of the 
 survivors.' 
 
 §762. At common law an action for a wrong done either to the 
 person or property of another, could not, after his death, be the 
 subject of an action by his personal representatives against the 
 wrong-doer ; and on the other hand the personal representatives of a 
 wrong-doer, after his death, were not liable to an action for any 
 wrong committed by him. These rules have been changed in l^ew 
 Fork by statutes which provide that " Executors and administrators 
 shall have actions of trespass against any person who shall have 
 wasted, destroyed, taken or carried away, or converted to his own 
 use, the goods of their testator or intestate in his lifetime. They 
 may also maintain actions for trespass committed on the real estate 
 of the deceased, in his lifetime ;" and " Any person, or his personal 
 representatives, shall have actions of trespass against the executor or 
 administrator of any testator or intestate, who in his lifetime shall 
 have wasted, destroyed, taken or carried away, or converted to his 
 own use the goods or chattels of any such person, or committed any 
 trespass on the real estate of any such person." ^ It is also provided 
 that " For wrongs done to the property, rights or interests of another 
 for which an action might be maintained against the wrong-doer, 
 such action may be brought by the person injured, or after his death, 
 by his executors or administrators, against such wrong-doer, and after 
 his death against his executors or administrators, in the same manner 
 and with the like effect, in all respects, as actions founded upon 
 contracts.* But the preceding section shall not extend to actions for 
 slander, for libel, or to actions of assault and battery, or false imprison- 
 ment, nor to actions on the case for injuries to the person of the 
 plaintiff, or to the person of the testator or intestate of any executor 
 or administrator.'" Subsequent statutes also provide that actions 
 may be brought where the death of a person shall be caused by the 
 wrongful act, neglect or default of another, the action being brought 
 by and in the names of the personal representatives of such deceased 
 person, the recovery being limited to five thousand dollars.^ As 
 
 ■ Ante, § 754. ■ ■• 3 R. S. 447, § 1. 3 id. (Banks' 5tli ed.) 746. 
 
 ^ 1 cutty's PI. 77. ' Id- § 3- (id-) 
 
 » 2 R. 8. 114, §§ 4, 5. 3 id. (Banks' 5th ' Laws of 1850, ch. 450 ; 1849, ch. 356. 
 
 ea ) 303. 3 R. S. (Banks' 5tli ed.) 589, § 3, &c. 
 
408 pAeties to actions foe weongs. 
 
 such cases ■will rarely, if ever, be brought in justices' courts, even :i 
 they have jurisdiction of them, we do not give the statutes in full, 
 nor refer to the raany decisions that have been made thereon. With 
 the exception of these statutory provisions, all wrongs committed in 
 the lifetime of another to his property or rights,' are the proper 
 subject of an action by his personal representatives ; while those 
 committed upon his person remain subject to the rule at the common 
 law. And, on the other hand, injuries to the property or rights of 
 another committed by a deceased person are the subject of action 
 against his personal representatives, but of which a justice has not 
 jurisdiction.' 
 
 § Y63. For an injury to the real or personal property of a woman 
 before her marriage, the husband and wife, at common law, must 
 join as in actions upon contracts made to her while unmarried, and 
 if the wife survives her husband, she must sue alone.^ And the rule 
 is the same if the wife's interest be only as a guardian in socage.^ 
 Under the Code, in such cases, she may now sue alone.^ 
 
 § 764. It has been remarked that all persons may be parties in 
 actions for wrongs.^ It is no ground of defense in such action that 
 the defendant is an infant, a married woman, or an idiot or lunatic, 
 though infants, idiots and insane persons are not i"equired to exercise 
 the same degree of care as other persons.® Each of them is liable for 
 all wrongs which they commit. Thus, where goods are delivered to 
 an infant under a contract of bailment, and he is guilty of a positive 
 wron^ul act or injury to them, by which the owner sustains damage, 
 he is liable to him for their conversion.'' And it makes no difference 
 that the contract was void. The act, however, must be something 
 more than a mere omission to do what he ought, by the contract, to 
 have done. It must amount to a positive wrongful act. As where 
 the infant has hired a horse to go to a certain place, and he goes 
 beyond it or to another in a different direction,* or drives him so 
 violently that he dies of the improper treatment.' So he is liable, 
 even though he is under seven years of age, for negligence ;^'' for torts 
 to personal property ;", for fraudulently obtaining goods upon credit, 
 with an intention not to pay for them ;^ or by falsely representing- 
 
 ' Code, I 54, sub. 5. - '6 Cranch, 226. 8 Pick. 492, 494. 
 
 ' 1 Ohitty's PI. 85. ' 3 Pick. 493. 5 Duer, 49. 
 
 = 5 John. 66. ' 3 Wend. 137. 
 
 ' Code, § 114. " 3 Wend. 391. 
 
 • Ante, § 757. " 29 Barb. 318. 
 •39 Barb. 318. 5 Duer, 49. 43 Mo. 119. "5 Hill, 391. See 4 Sekl. 440. 
 36 id. 484. 8 Wend. 391, 394. 
 
PAETIE8 TO ACTIONS FOR WEONGS. 409 
 
 liimself to be of fall age} But where tlie tort or fraud consists merely 
 in the breach of a contract, the infant is not liable in an action for the 
 tort.* A. lunatic is not liable to vindictive damages.' Where the 
 wrong is committed by an idiot or lunatic who is in the charge of a 
 committee, it is improper to bring an action against him, as the proper 
 remedy is to apply by petition for relief to the court which appointed 
 the committee.* A parent is not liable for his infant's torts, unless 
 they are committed under his assent or direction.^ 
 
 § Y65. AH persons who direct, advise, aid, assist or countenance 
 the commission of a wrong, either directly or indirectly, are con- 
 sidered joint wrong-doers, and may be sued as principals and made 
 accountable for the whole damage sustained. And even an assent to 
 a wrong committed for their benefit, renders them equally liable with 
 him who actually committed it.^ But the rule will not apply in the 
 case of a prior or subsequent assent to a wrong by a married woman, 
 an infant,' an idiot or a lunatic, for their consent would be void. In 
 order, therefore, to render either of them liable, they must have 
 actively participated either in committing the wrong, or in aiding, 
 assisting or countenancing its commission, previous to or at the time.* 
 A slight participation or interference is sufficient to create the 
 liability ; as the indemnifying an officer in selling the goods of a 
 stranger upon execution.' But although the officer levy on the goods 
 of a stranger, the plaintiff in the execution is not liable unless he 
 authorize, request or assent to the levy. The purchaser at the sale 
 is, however, liable if the goods levied upon did not belong to the 
 defendant on the execution, because, in that case, the seizure and sale 
 were wholly unauthorized by the process." The guilty knowledge of 
 one trespasser, and his acts and declarations, are the knowledge, &c., 
 of his co-trespassers.^^ If a sheriff ratifies the misfeasance of his deputy, 
 he may be sued with him as a joint trespasser.^ If an attorney merely 
 "issues an execution, and communicates his client's directions to the 
 sheriff, and, in pursuance of his client's authority and direction, 
 executes an indemnifying bond to the sheriff, he is not liable, although 
 the seizure was wrongful.^* If suit is brought against 'several joint 
 
 -1 Daly, 334. UCh.Pl.91. 
 
 = 8 Term R. 335. ' 1 Chit. PI. 91. 
 
 '3 Barb. 647. • 15 N. T. 409. 
 
 « 43 Mo. 119. " 1 Chit. PI. 91 
 
 » 5 Paige, 489. 2 id. 433. 8 id. 199. " 33 111. 403. 
 
 See 3 Barb. 153. '« 5 Seld. 598. 
 
 » 11 John. 385. 1 Chitty's PI. 91. 43 '= 3 Kern. 577. 
 Mo. 119. 
 
 52 
 
410 PAETIESTO ACTIONS FOE WEONGS. 
 
 trespassers for a cause which is proved, it cannot be waived, and 
 evidence given of another against one only.^ And so, in snch a case, 
 if a joint trespass is proved' against, a portion of the defendants, the 
 plaintiif cannot afterward give evidence of another trespass by all, 
 even as against such part alone.* 
 
 § 766. As we have already seen, a master or principal is liable for 
 any injury occasioned by the negligence or unskillfulness of his ser- 
 vant or agent while in the course of his employment ; as for care- 
 lessly driving his carriage against another.^ In like manner one is 
 liable for any irregularity in the proceedings of his attorney by 
 which another is injured ; as if the goods of a defendant should be , 
 levied upon a judgment, and execution afterward get aside for irregu- 
 larity. The party is also liable for the acts of his sub-agent engaged 
 in his business.* A corporation ia liable for the acts of its agent or his 
 negligence to the same extent as persons.^ If the driver or brake- 
 man of a street railway car is guilty of negligence in assisting pas- 
 sengers to get on board, the owners of the road are liable.* 
 
 § 767. In all actions for wrongs, the plaintiff may make all the 
 joint wrong-doers defendants, or he may bring separate actions against 
 them, and, as his recovery may be against any one of the defendants 
 while the others are acquitted, it will not defeat his action if he, by 
 mistake, join an innocent person with the guilty defendants. In this 
 case the innocent person may be acquitted, while the action proceeds 
 to judgment against the others.' 
 
 [§ 767a.J No one can be both plaintiff and defendant in the same 
 action, i. e. a party has no right of action against himself.' There- 
 fore, it was held that the trustees of a religious society could not sue 
 one of their number.' 
 
 •7Cal. 153. '34^ Y. 30. 36 Mo. 546. 
 
 » 15 Ind. 274. " 26 N. Y. 49. 
 
 » Ante, §§ 481, &c. See also 34 Barb. ' 1 Chitty's PI. 98. 14 John. 436. 39 
 
 349. 8 Ind. 137. N. Y. 591. 30 id. 78. 44 Barb. 347. 
 
 * 4 Camp. 73. 6 Cowen, 189. 6 Dowl. ' 1 Ch. PI. 46. 37 Barb. 553. 
 &Ry. 375. 39 Barb. 419. • 37 Barb. 553. 
 
CHAPTER V 
 
 OF THE JOINDER OP ACTIONS. 
 
 § 168. The ancient rules in relation to the joining of two or more 
 causes of action in a single suit are, in the practice of courts of 
 record, superseded by the one hundred and sixty-seventh section of 
 the Code of Procedure. That authorizes the union in the same com- 
 plaint of several causes of action, all of vfhich arise, 1, from the same 
 transaction ; 2, on contract ; 3, injuries to person or property ; 4, 
 injuries to character; 6, claims to recover real property, and. rents 
 and profits ; 6, claims to recover personal property ; and Y, claims 
 against a trustee. In each case the causes united must belong to one 
 of the classes and must affect all the parties to the action, and not 
 require different places of trial, and must be separately stated. 
 There is no provision of the Code extending the new rule.to actions 
 in justices' courts, and the general rules formerly existing remain so 
 naodified as is necessary to apply them to the changes from the for- 
 mer actions to the civil action. The following is a synopsis of those 
 rules : 
 
 1. "Where several causes of action of the same nature existed 
 between the same parties and in the same right, they might be 
 joined. For example, where one held several promissory notes, and 
 also had an account against another, he might join aU his demands 
 in one action. He might also do so if he had- several causes of 
 action for trespass committed upon his person or property, or for 
 slander, or any other injury the subject of an action on the case, or 
 of debt or replevin ; but he could not unite a cause of action in . 
 replevin with one upon a promissory note, or for slander, or an 
 injury to his person or property, i Again, if one of the causes of 
 action was his own, and the other one in which he was only inte- 
 , rested as an executor or administrator, or as a trustee, he could not 
 unite them ; and so, if one was against the defendant personally, and 
 another one in which he was liable as executor or trustee or in some 
 other character, they could not be joined. The test was this, can 
 the same plea be pleaded to and the same judgment be given upon 
 
412 JOINDEE OF ACTIONS. 
 
 each cause ? If they might, the causes, whatever might have been 
 their number, might be joined.^ 
 
 2. Actions upon contracts not under seal, as upon a promissory 
 note, for money lent, a warranty on a sale and a contract of bail- 
 ment, might be united ; but a claim upon a cjontract under seal, which 
 was the subject of an action of deht or covenant, could not be united 
 with one upon a contract not under seal, if objection to the joinder 
 were seasonably made.' 
 
 3. Several trespasses might be joined, as a trespass on real estate 
 and one for taking or injuring personal property, or such an one with 
 one for a rescue of animals impounded.' 
 
 •4. Several causes of action, one of which was for deceit on a sale, 
 and another for a deceit in another transaction might be joined where 
 the deceit was the gist or ground of the action in both cases. 
 
 5. An executor or administrator might join in one action a claim 
 held by him, as such, originating in the lifetime of his testator or 
 intestate, with a similar one held by him, as such, originating after 
 the death of his testator or intestate ; as a promissory note made to 
 his testator with one which he as his executor had received on account 
 of the estate.* But one could not unite a cause of action arising 
 against another before his death with one arising afterward against 
 his executors.^ 
 
 6. "Wherever different causes were united in a single action, each 
 was stated in a distinct count of the declaration. 
 
 § 769. The present system of pleading, recognizing no distinct 
 pleas to any particular cause of action, and no particular form of 
 judgment, the former test in relation to joinder of actions will be 
 found an impracticable one. It will, however, be safe to observe the 
 ancient rules so far as they are not quite certainly changed by the 
 new system. Claims of the same nature may be united, of course, 
 as under the old practice ; and there can now be no reason why 
 those on contracts gi-owing out of sealed instruments may not be 
 united with those on contracts by parol ; but where there are two or 
 more causes of action,, each should be stated separately in the com- 
 , plaint. In- the succeeding sections we give further decisions in cases 
 before, as well as Since the Code, upon this general question of "join- 
 der of causes of action. 
 
 ' Grail. Pr. 95. 33 "Wend. 369. 30 Barb. '1 Oliitty's PI. 339. Gould's PI. 312. 
 443. 31 id. 345. 6 How. Pr. R. 131. 5 10 Jolin. 340. 
 Cal. 334. 37 111. 478. * 1 Ch. Pl. 333. 
 
 " 33 Wend. 369. ° 13 John. 349. 5 "Wend. 36. 8 id. 680. 
 
 7 Cowen, 58. 
 
JOINDER OF ACTIONS. 413 
 
 § 170. "Where a claim belongs to two or more persons jointly, 
 eitlier on contract or for a wrong, they cannot unite with it, in an 
 action, a separate claim due to one of them.^ Thus, a claim due to 
 husband and wife cannot be joined with one due to the husband 
 alone ; as a claim for a debt due the wife before marriage with one 
 due to the husband, or for an injury to the person of the wife with 
 one for the expense occasioned to the husband thereby ; but where 
 partners have divided an account against a debtor and he has con- 
 sented to it and agreed to pay to each partner liis separate share of 
 the debt, each partner owns his part in severalty and may bring his 
 action upon it and unite it with another cause of action due to him 
 alone.^ 
 
 § T71. A sole surviving creditor may unite his claim as such with 
 one owing to him individually. Here by his survivorship the joint 
 claim vests in him as in his own right, and the two claims are there- 
 fore held in the same right.' 
 
 [§ 771(X.J Causes of action arising upon contracts, and those for torts, 
 cannot be joined.* 
 
 [§ 771&.] A constable and his sureties may be sued in the same 
 action, their obligations arising on a bond signed by each of them.^ 
 It is not necessary that the several causes ^of action should affect all 
 the defendants equally ; it is sufficient that each cause of action 
 affects each defendant in some degree.* 
 
 § 772. Where there is an improper joinder of actions it may be 
 objected to by the answer, and the court may allow the plaintiff to, 
 amend by striking out a portion of the causes so as to obviate the 
 difficulty, and leave the remainder of the causes of action such as 
 may be united.' If, however, there be an improper joinder of par- 
 ties, and the objection be seasonably made, there is no remedy. In 
 actions upon contracts, in justices' courts, the proper parties must 
 be shown to be plaintiffs and defendants, or a recovery wiU not be 
 warranted. In actions for wrongs, if all the parties interested in the 
 recovery are not made plaintiffs, and the defendant does not object 
 by his answer, it will only avail him by having an apportionment of 
 the damages,* and if he neglects fo avail himself of the non-joinder, 
 
 1 16 How. Pr. R. 195. • 10 Wend. 370. 10 How. Pr. E. 361. 
 
 ' 5 Halst. 153. 3 Mass. 401. 3 BosW. 450. ' 15 How. Pr. R. 333 ; also 1 Kern. 138. 
 
 = 1 cutty's PI. 231 to 385. 4 Bosw. 120. 
 
 * 21 Wend. 29. 1 Hill, 545. 9 Barb. 330. '31 Wend. 29. 19 Barb. 666. , Code, § 
 
 9 How. Pr. R. 311. 12 id. 331. 15 id. 64, sub. 7. 
 231. Code, § 167. 35 Mo. 483. " 5 Hill, 59 N. a. 
 
414: • JOINDEE OP ACTIONS. 
 
 the recovery -will be no bar to a subsequent action brought by the 
 party not joined.* 
 
 §.773. Where no objection is made in a justice's court to the mis- 
 joinder of causes of action, a judgment will not be reversed for that 
 cause. In order, therefore, to avail himself of the objection, the 
 defendant must make it by answer." 
 
 § 774. One is not permitted to split up a single transaction, whether 
 of contract or wrong, for the purpose of bringing separate actions 
 upon it.' Thus where a merchant makes sale of a large number of 
 articles in an entire contract, he cannot bring one action for a part 
 and another for the remainder, and if he obtains judgment upon a 
 part of the demand so split up, it will be a bar to an action for the 
 residue, or to setting it up by way of set-off in an action by the other 
 party. 
 
 § 775. An entire demand under the rule contained in the last sec- 
 tion need not necessarily have accrued at the same time. Indeed, 
 an ordinary merchant's account, consisting of purchases made upon 
 fourteen different days, was held, an entire demand, and a judgment 
 obtained in an action brought upon the iirst seven items when the 
 whole account was due, was held a bar to a fresh action upon the 
 remainder.* A similar doctrine was held where there were breaches 
 of several and distinct covenants contained in the same instrument. 
 A recovery upon one was a bar to actions upon the others.^ 
 
 § 776. The rule requiring the joinder of actions upon an entire 
 demand does not prevent a plaintiff from bringing separate actions 
 for each of a series of similar wrongs coipmitted at different times, 
 nor upon a note and an account, or any other causes of action which do 
 not form a part of a single demand. 
 
 ' 5 HiU, 59. * 8 Wend. 493, 4. 1 id. 488. 
 
 = 3Hm, 609. 4 Barb. 361. 34 id. 39. ' 19 Wend. 307. 
 
 ' 19 "Wend. 307, and see infra, §§ 1079, 
 &c. 16N.Y.548. 38 Iowa, 393. 
 
CHAPTER VI. 
 
 OP THE ELECTION OF ACTIONS. 
 
 § YY7. In many cases where the property of a, person Has been 
 taken or detained from him, or he may, for other reasons, as for a 
 fraud, have an action of tort, he may waive the wrong and 
 bring an action upon the defendant's implied contract to pay 
 him for it> This rule is retained by the Code.^ There are, how- 
 ever, advantages in bringing an action upon the wrong. In 
 such an- action, bare possession of the property in the plaintiff is 
 sufficient to sustain the action against a wrong-doer, and the judg- 
 ment in an action for a wrong warrants an execution against the 
 body of the defendant, while one in contract only authorizes an exe- 
 cution against his property. In many other cases, he has an election, 
 as to bring an action for specific property (the old action of replevin), 
 or for its value ; but when he has made his election and brought his 
 suit, his right to pursue the other remedy is extinguished.^ 
 
 § 778. Again, in actions upon certain contracts where the defendant, 
 for a consideration paid him, has covenanted to do a certain thing 
 and has failed to do it, the plaintiff may either bring his action for 
 his damages, or, by disaffirming the contract, bring his action for the 
 consideration money paid ; or where he has a remedy at common 
 law he may resort to one furnished by statute.^ But when both the 
 remedy and the right are given by statute, the remedy so provided 
 must be pursued, and in such a case, if the statute is repealed, the 
 right of action is gone, even in respect to suits then in progress.' 
 
 § 779. "Where an action may be brought upon an implied contract, 
 or for a wrong, it is also desirable to bring it upon the wrong if 
 there be any doubt as to the persons who should be made parties, for 
 
 'Cliitty'sPl.113. 13Wena.l54. IHUl, * 5 John. 175. 10 id. 389. 18 id. 333. 5 
 
 240, note a. 3 id. 383. 5 id. 584, note a. Cowen, 165. 34 Barb. 863. 35 Cal. 535. 
 
 5Denio, 370. 27 Barb. 653. 34 id. 84. 3 id. 343. 
 
 54 id. 164. ' 5 Jolm. 175. 1 Hill, 834. 3 How. Pr. 
 
 = 9 Abbott, 411. 7 How. Pr. E. 381. K. 143. 4 id. 36. 3 Cal. 343. 7 id. 136. 
 
 ' 18 N. T. 553. 34 id. 473. 9 id. 263. 81 id. 133. 8 Ind. 381. 9 id. 
 
 283. 8 OMo Ni S. 590. 14 Iowa, 396. 
 
416 ELECTION OF ACTIONS^ 
 
 the reason that the non-joinder of a plaintiff in an action for a wrong 
 can only be taken advantage of by answer, and the joinder of inno- 
 cent persons with the guilty one's as defendants, is no bar to a judg- 
 ment against the proper parties. As for example, where three 
 defendants had the loading of ^a hogshead of molasses, and they so 
 negligently conducted themselves in doing it as to spill the molasses. 
 Here the action might have been brought upon their contract to per- 
 form the work skillfully; but in this case it would have been 
 necessary to show the contract by the three as well as the injury. It 
 was, however, brought for the wrong, and then on its appearing that 
 but one of the three was interested -in the contract, or was guilty of 
 the negligence, a judgment was recovered against hira for the dam- 
 age, although the others were acquitted.'' -' 
 
 ' 3 East. 63. ' ' 
 
INDEX. 
 
 [TJie Beferences are to the Sections, unless othenoise indicated!\ 
 
 A. 
 
 ABATEMENT, 
 
 former rules of pleading in, 993. 
 
 order of, 995; matters formerly- 
 pleaded in, 999 to 1008. 
 
 pleas in not now admitted, 996. 
 
 matters formerly pleaded in, now joined 
 with answer in bar, 996, 1008. 
 
 forms of answer containing matter in, 
 1008, 1009. 
 
 pleading containing matters in, not to 
 be verified, 996, 1010. 
 
 matters in, may be pleaded to part of 
 cause of action, 1007. 
 
 none, in suits against limited partner- 
 ship, 188 ; nor against certain associa- 
 tions or companies, 193a. 
 
 of public nuisance by any one, 557 ; ai«i 
 of encroachments on public high- 
 ways, 557. 
 
 ABSCONDED DEFENDANT, 
 where suits against may be brought, 3, 
 783. 
 
 ABSENCE, 
 from the state, effect of, under statute 
 of limitations, 735 to-738, 1101, 1101a. 
 
 See Limitations, Statute of. 
 
 ACCEPTANCE, 
 under statute of frauds, when necessa- 
 ry, 93. 
 
 See Delivery ; FfiAtrDS, Statute of. 
 
 what it is, 347. 
 
 supplies lack of name of drawee, 345. 
 
 is to be in writing, on the bill or ano- 
 ther paper, 347, 850 to 353. 
 
 certification of biU or note as good is, 
 347. 
 
 bill after, is like a note, 349. 
 
 is binding, though drawer's name is 
 forged, 349, 419. 
 
 when previohs promise to accept 
 amounts to an, 351. 
 retention of bill, or its destruction, 
 amounts to an, 351. ' 
 
 ACCEPTANCE— Co?ifi!n««^. 
 may be made by drawee's agent, 353. 
 when not dated, time of may be shown 
 
 by parol, 358. 
 obligations of drawer before, 409 to 416. 
 effect of neglect to present for, 410; 
 when presentment for excused, 410 to 
 413. 
 may be partial or conditional, 414 ; in 
 such case notice must be given to 
 drawer, 414. 
 manner of serving notice of non-ac- 
 ceptance, 415, 438; rules in relation 
 to serving Such notice, 438. 
 acceptor's obligation, on an, 416 to 420 ; 
 he is prima, facie the principal debt- 
 or, 418 ; when not liable to drawer, 451. 
 drawer's and endorser's obligations af- 
 ter, 420. I 
 demand of acceptance and payment, 
 and notice of dishonor, 431 to 435. 
 when payable at a place certain, 439. 
 when payable at a bank, 429. 
 when not payable at a certain 
 place, 480. 
 days of grace allowed upon, 436. 
 excuses for not giving notice of non- 
 acceptance, or non-payment, 440 to 
 443. 
 waiver of such notice, 443, 443. 
 when such notice, or waiver in- 
 ferred, 444. 
 for the honor of the drawer, or supra 
 
 protest, 446. 
 made after maturity, is payable on de- 
 mand, 447. 
 is of itself evidence of money lent, 477. 
 
 See Acceptok,' Bills op Exchange, &c. 
 
 ACCEPTOB, 
 who is an, 347. 
 must accept in writing in order to bind 
 
 him, 347, 350 to 353. 
 his promise to acceipt, when valid, 351. 
 an infant may be an, 370. 
 when an, may allege the illegality of the 
 
 consideration for a bill, 394, 396, 397. 
 obligations of an, 351, 416 to 430. 
 
964 
 
 INDEX. 
 
 ACCEPTOR— CferafoMwrf. 
 
 lie stands in the position of maker, 
 
 416. 
 tender by, saves interest and costs, 
 
 416. 
 not liable for costs of action against 
 
 endorsers or drawers, ,417. 
 is prwna fade principal debtor of 
 
 drawer, 418, 451, 454. 
 is liable tbongb drawer's, nanie is 
 forged, 349, 419. 
 has till last day of grace to pay his ac- 
 ceptance, 436. 
 demand of payment of, and notice of 
 
 dishonor, 416, 429 to 435. 
 bankruptcy, insolvency, &c., of, will not 
 
 excuse notice, 413. 
 rules for service by, of notjee of dis- 
 
 hpnor, 413, 43?. 
 remedy whgre. he is an accommodation 
 . acceptor, 415. 
 t^lesise of, discharges certain parties to 
 
 the bill, 454 to 463, 1113. 
 when, an, may recover of the drawer, 
 
 409. 
 defense to action against, by drawer 
 VRhp had no fiinds, 451. 
 
 <Ss«, A,ccb:?t.ahcb, Bill of Exchange, &c. 
 
 ACCESSION, 
 what it is, 579. 
 title to goods by, 579i 
 
 ACCIDENT, 
 actions, for injuries, by, 483, 484. 
 
 lie thon^.,the negligence was only 
 
 slight, ^83,; instances of, 483. 
 d.0 not lie where accident was una- 
 voidable, 484. 
 burden of proof is on plaintiff, 484 ; and 
 
 question Is one for juiy, 484. 
 bailees, when answerable for, 101 to 105. 
 W(heh turnpik,e and railroad corpora- 
 tions liable for, 634. 
 inevitable, defined, 103, 
 
 See Negligence, Mistake. 
 
 ACCOMMODATION, 
 
 notes or bills, usurious if sold at dis- 
 count exceeding seven per cent, 63. 
 
 liability of partnership on, or on accom- 
 modation endorsement, made, by one 
 partner, 300, 304. 
 
 when valid, 390. 
 
 diversion of the purpose of, when a, de- 
 fense, 390, 391. 
 
 endorsement of part of amount of note, 
 396. 
 
 acceptor may recover the money paid 
 for drawer, 451 ; defense in such case, 
 451. 
 
 married woman not liable on. an, lOSOa. 
 
 ACCORD AND SATISFACTION, 
 
 what is an, 1143, instances of valid, 
 1143, 1144. 
 
 answer setting up, 1143. 
 
 is a good consideration for a note given 
 thereon, 394. 
 
 accord without satisfaction not a bar, 
 1143 ; when both are a bar, 1143. 
 
 when the acceptance of a chose in action 
 is' or of security, or of a dividend, 
 1144. 
 
 payment of part of an undisputed claim 
 that is due is not, 1143, 1145 ; but pay- 
 ment of part, and delivery of some- 
 thing of Value is, 1145, note 2 ; and 
 also payment of part before due, 1145. 
 
 acceptance of chattel may be, 1146; 
 agent's acceptance of, sufficient, 1146. 
 
 deed before breach,, not discharged by 
 accord and satisfaction without a 
 deed, 1-147 ; after breach, a bar, 1147. 
 
 of judgment or other matter of record, 
 1145. 
 
 of a penal bond, valid-, 1145. 
 
 must be reasonable and legal, 1147. 
 
 doing what law obliges one to, is not, 
 
 ■ 1147. 
 
 conferring a benefit on third person is, 
 1147. 
 
 must proceed from parties, and not a 
 stranger, 1147. 
 
 by one of several wrong doers or joint 
 d.ebtors, good for all, 1147. 
 
 ACCOUNT, 
 action of not in justice's iurisdiction, 
 
 310.. 
 balance of, if not too large, may be sued 
 
 for in justices' courts, 310. 
 complaint on an, 945 (9). 
 each party may be required; to exhibit 
 
 his, 945 (14), 
 when interest is allowed on, 1533, 1524. 
 
 ACCOUNTS, BOOKS OF, 
 when evidence, 1434 to 1439. 
 Bee Books of AccoiiisrT. 
 
 ACCOUNTS MUTUAL, 
 
 when not in justices' jurisdiction, 5 ; 
 must be open and unliquidated, 15, 
 1073 ; what are such, 15, 1056, 1073. 
 
 effect of payments, and of set-off on, 
 15, 733, 1073. 
 
 if there has been a settlement, amount 
 found due is the claim, 15, 1Q73. 
 
 may be proved, by admissions of parties, 
 15. 
 
 justice has jurisdiction till he decides as 
 to amount, 15. 
 
 if justice renders judgment on, in cases 
 exceeding his jurisdiction, it is erro- 
 neous, but not void, 739. 
 
 when statute of limitations begins to 
 run on, 733, 1099. 
 
 set-off in cases of, 1051, 1056, 1073. 
 
rSTDES. 
 
 965 
 
 ACCOUNT STATED, 
 
 •wliat it is, 478 ; when presumed from 
 retention of accounts sent, or shown, 
 or not objecting to, 479, 1393. 
 
 ■action upon, 478 to 480 ; wliere it lies, 
 478 ; complaint on, 478 ; defenses, 479. 
 ' iDetween partners, 479 ; balance of, sub- 
 ject of action, 310, 479. 
 
 when void claim cannot be, 479, 
 
 account containing usurious items may 
 be in hands of third person, 479. 
 
 whether account is stated or not is 
 question of law on the facts, 479. 
 
 cases of, 479. 
 
 account is not stated, if not intended to 
 be, 479. 
 
 interest recoverable on, 1523 
 
 ACCOUTRESIENTS, 
 when exempt from execution, 1586. 
 
 ACKNOWLEDGMENT AND PROOF, 
 
 of deeds in other States, 1362. 
 
 in New York, 1367 to 1371. 
 
 before whom to be made in New York, 
 ,1368. 
 
 forms of, 1369, 1370. 
 
 clerk's certificate, when necessary to 
 authenticate, 1371, 1373. 
 
 prima faxie evidence of officers' author- 
 ity to take, 1373. 
 
 ACTION, 
 civil, suiiersedes all ancient forms of, 
 
 3, 680. 
 when civil, may be maintained, 3. 
 what, may be brought in a justice's 
 
 court, 4 to 16, 680. 
 what may not be brought in a justice's 
 
 court, 5,14, 15, 210, 680. Assault, 
 
 battery, false imprisonment, libel, &c., 
 
 5, 680. 
 where an, for injuiy to real property to 
 
 be brought, 7. 
 for penalties, where to be brought, 8. 
 on justices' judgments, when may be 
 
 brought, 11. 718. 
 of debt. 
 
 , See Debt. 
 
 on subscriptions, 136. 
 
 Bee Stjbsokiptioks. 
 
 on contract, for the recovery of money, 
 23. 
 
 after performance, by plaintiff, of agree- 
 ment, void by statute of frauds, 128, 
 143. ^ ^ 
 
 on agreement, to pay owner of lands for 
 laying out highway, 143. 
 
 on agreement, to pay surplus moneys to 
 mortgagor, 143. 
 
 for breach of agreement, 151. 
 
 by auctioneer, for goods sold, 171. 
 
 abatement of^ in case of limited part- 
 nership, 188. 
 
 by Or against special partners, 190, 191. 
 
 ACTION— Contowed 
 by or against joint stock companies or 
 
 associations, 192. 
 by or against general partners, 211 ; in- 
 fant partner inust be joined, 211; when 
 dormant partners' need not be, 185, 
 747, 790. 
 on joint tod several contracts, 312, 313. 
 on contracts ordinarily brought injus- 
 tice's courts, 314. ! 
 special agreements, 315 to 221 ; plain- 
 tiff must prove performance on his 
 part 217 ; made by public officers, 
 220. 
 against one who agrees to discontinue 
 
 suit but does not, 210. 
 for goods sold, 231 to 351. 
 
 See Goods, sold'; Sales. 
 
 may be brought by vendor or purch- 
 aser, 233 to 338. 
 to an agent, with express or implied 
 
 authority, 343, 343, 244. 
 necessaries furnished wife, child, &c.. 
 
 343, 344. 
 sold to a committee of a Club, party 
 or society, 345. 
 for non-delivery of goods sold, 223 ; 
 
 damages in, 333, 324, 1507. 
 on sales, must hot be brought till credit 
 has expired, unless there is fraud, 240. 
 for goods fraudulently ortortiously pur- 
 chased, 238, 247, 348. . 
 on recision of sales for fraud, 254, 264, 
 
 sub. 3. 
 on warranties, 360 to 264. 
 
 See "Wabbanty. 
 
 on warranty or fraud in the sale of a 
 horse, 264 to 270. ' 
 
 See HofiSES. 
 
 for price of goods may show warranty 
 
 in defense, 262. 
 for work, labor and services, 270 to 305. 
 
 See "Work, &c. 
 
 for medical attendance on, or board of a 
 
 pauper, 288. 
 by paupers or prisoners, for their labor, 
 288. 
 arbitrators for their fees, 295. 
 teachers of schools, 295 a ; defenses in 
 such cases, 395 a ; brokers, 390 ; or 
 one employed to procure a pardon, 
 396. 
 for money had and received, 305 to 317. 
 
 See MoKET, Had aito Received. 
 
 paid for defendant, 317 to 331. See 
 Money Paid, &c. ; lies against 
 one who prevents plaintiff from 
 accomplishing or enjoying that for 
 which he has paid money, 330 a, 
 money lent, 331 to 334. 
 
966 
 
 \ 
 
 INDEX. 
 
 A.CTION—Oontintied. 
 
 See Monet lent. 
 
 . does not lie to recover on mortgage un- 
 less express or implied agreement 
 therein, 333. 
 for use and occupation, 334 to 345.- 
 
 See Use and Occupation. 
 
 on bills of exchange and promissory- 
 notes, 345 to 478. 
 
 See Bills op Exchange and Promis- 
 sory Notes. 
 
 by married ■women, on bill or note 
 
 owned by them, 373, 373 a. 
 against those severally liable on the 
 
 same instrument, 450. 
 on an Account stated, 478, 479. 
 
 See Account stated. 
 
 for injuries to person or property, 480 to 
 
 to the person, 480 to 501. 
 
 through negligence, 481 to 495. 
 to real property, 501 to 563 ; need not 
 be brought in county, 7. 
 through negligence, 637. 
 for taking, detaining or injuring per- 
 sonal property, 563 to 645. 
 through negligence, 631 to 636. 
 lies though taking, &c., was by mistake, 
 and without wrongful intention, 565. 
 by unlawfully mterfering, as by 
 imauthorized levy, &c., 566, 567, 
 673. 
 for injuries by a nuisance, 497, 497a, 
 556, 557. 
 
 See HuiSANCB. 
 
 for injuries committed by animals, 494 
 to 497, 536 to 543, 633, 643. 
 
 See Animals. 
 
 to animals, 638 ; to sheep by dogs, 
 641. 
 does not lie for Involuntanr trespass, 541. 
 lies for damages arising from maintain- 
 ing an insecure dam, 560. 
 between joint tenants and tenants 
 
 in common, 620. 
 for timber cut on one's land, 635. 
 against turnpike and railroad com- 
 panies, 105 (8), 631, 634a. 
 will not lie for a paid bill, or note, 624. 
 for taldng personal property under col- 
 or of law or legal process, 647. 
 where there is a want of jurisdic- 
 tion, 648 to 663, 1637. 
 where process is void for irregu- 
 larity, 663 to 670. 
 by an oflScer who exceeds his au- 
 thority, 670, 671. 
 by one who directs or indemnifies 
 for a levy, 671. 
 
 ACTIO'^—Oonimued. 
 
 by one entitled to right, or suffering an 
 injury, declared by common or stat- 
 ute law, 680. 
 
 for false affirmation of solvency of third 
 person, 681. 
 
 against professional person for negli- 
 gence or a wrong, 683. 
 
 does not lie for money paid for an es- 
 cape, 694. 
 
 for a false return, 695 to 699, 867. 
 
 against judicial officers for corruption, 
 misconduct, error or false informa- 
 tion; 697, 698. 
 
 for a penalty, 708 to 714. 
 
 See Penalty. 
 commenced, by attachment, 714, 715. 
 
 See Attachi£bnt. 
 upon a bond for the payment of money, 
 
 See Bond. 
 
 a surety bond taken by a justice, 717. 
 against corporations, 730, 746. 
 
 See Cohpokations. 
 
 certain officers of a county, town 
 or school district, 746. 
 for fraud in a sale, purchase or ex- 
 change, 730. 
 when the title to real estate is in ques- 
 tion, 721 to 729, 1193 to 1300. 
 of the time of commencing an, 731 to 
 
 743, 1093 to 1107. 
 of the parties to an, upon contract, 743 
 to 757. 
 all the persons interested should be 
 made parties, 185, 311, 743 to 
 756, 790. 
 when husband should join his wife 
 
 in an, 745. 
 against husband for wife's debts 
 
 before marriage, 755. 
 the several parties to a bill or note, 
 
 756. 
 wjien principal and surety cannot 
 be joined, 756. 
 for wrongs, 706, 707, 757 to 767(5. 
 
 when right of survives to repre- 
 sentatives, 763. 
 slight interference all that is neces- 
 sary, 765. 
 must be brought by general, special or 
 qualified owner of property, 568, 570, 
 576. 
 by constable against sheriif for not sell- 
 ing subject to his prior levy, 573, 678. 
 by finder of property, for his compen- 
 sation, 597. 
 by lien holder, for conversion of the 
 
 property, 610. 
 causes of, that may be assigned, 743(J5. 
 of the joinder of causes of, 768 to 777 
 
INDEX. 
 
 967 
 
 iLCTlOlii— Continued. 
 where partners divide claim and debtor 
 
 promises to pay each, 770. 
 several, will not lie for entire demand, 
 
 and what is such, 774, 775, 776. 
 of the election of, 238, 247, 248, 646, 
 
 683, 720, 777 to 780. 
 of the commencement of, 780. 
 
 See Commencement of Actions. 
 
 when deemed commenced, 781. 
 before what justice to be com- 
 menced, 2, 782. 
 by summons, 788 to 797. 
 by warrant, 797 to 815. 
 by attachment, 815 to 849. 
 against joint debtors, 856 to 861. 
 
 by assignee of bond on attachment, 892ft. 
 
 when an infant or idiot is a party, 933 
 to 988. 
 
 on revocation of agreement to arbi- 
 trate, 962. ' 
 
 table of defenses to, 1011. 
 
 on constable's bond, 1642. 
 
 by witness, for his fees, 294, 1234, 1563. 
 
 on judgment rendered in attachment 
 proceedings, 1556. 
 
 for costs improperly included in judg- 
 ment, and collected, 1559. 
 
 dismissal of, because costs of former 
 suit are unpaid, 1566. 
 
 cannot be brought by one against him- 
 self, 767a. 
 
 for suing out execution on a paid judg- 
 ment, 1581. 
 
 lies where goods are removed to another 
 county after issuing of execution, and 
 there "sold on another execution, 1608. 
 
 ofBcer must make actual levy before he 
 can sue for property, 1615. 
 
 against receiptor, for property, 1618. 
 
 by plaintiff in execution agaittst consta- 
 ble, who seUs on junior execution, 
 1623. 
 
 against purchaser on execution sale who 
 does not pay for goods, 1627. 
 
 See Opficbk, Constable, Shbripf, Limi- 
 tations.. 
 
 ACT OF GOD, 
 defined, 105. 
 
 accidental fire js not, 1041 
 when does not excuse non-performance 
 of agreemtot, 1041. 
 
 ADJACENT OWNERS, 
 
 See Owners of Real Estate. 
 
 ADJOINING TOWNS, 
 what axe such, 2, 782. 
 
 ADJOURNMENT, 
 statutory provisions concerning, 1204. 
 when to be beyond Sunday or election 
 day, 852. 
 
 ADJOURNMENT— Coniim-wiJ. , 
 when on the justice's motion, 1205 ; is 
 
 matter of discretion, 1205. 
 for how long time on plaintiff's or jus- 
 tice's motion, 1206, 1207, 1214, 1348. 
 computation of time for, 1205. 
 when on the motion of the plaintiff, 
 without oath, 1206, 1307. 
 when the action is by a non-resident 
 
 plaintiff, 1208, 1309. 
 in actions commenced by warrant, 1305, 
 
 1309. 
 on the motion of the defendant, 1310 to 
 1219. 
 oath that he cannot safely proceed 
 for want of witnesses, 1305, 1310, 
 1311, 1218. 
 security must be given, if required, 
 
 1205, 1213, 1333 to 1227. 
 reasonable time in which to get 
 security, 1313. 
 cannot exceed ninety days, except by 
 consent, or when commission issued, 
 1213, 1314, 1338. 
 what is a reasonable time for the, 1313. 
 defendant entitled to an, even if witness 
 is out of the jurisdiction of the court, 
 1218. 
 second or ftirther, on defendant's appli- 
 cation, 1314 to 1319. . 
 what proof defendant must then 
 
 make, 1214 to 1217. 
 what plaintiff may show in oppo- 
 sition, 1215. 
 applies to suits commenced by war- 
 rant, 1214. 
 if security has been given, further 
 not required, 12l4. 
 agreement for, and that security need 
 
 not be given, valid, 1217. 
 plaintiff may admit the evidence, and 
 prevent adjournment, 1218. 
 can require defendant to state what 
 he expects to prove, 1218. 
 not granted, as a general rule, after jury 
 . sworn, or trial begun, 1219. 
 ' cause may be held open, if neces- 
 sary, 1219. 
 when from the necessity of the case, 
 1330, 1308. 
 an amendment has been granted ou 
 the trial, 945 (11). 
 justice must wait One hour on adjourned 
 
 day, 1331. 
 when on condition that party states the 
 
 nature of his demand, 1222. 
 improperly made is a discontinuance, 
 
 1305, 1227; instances of, 1205, 1227. 
 in'egularities in, may be waived, 1205, 
 
 1227. 
 cannot b_e made, even by agreement, in 
 
 justice's absence, 1227. 
 after made, cannot be changed to a 
 
 shorter time, 1227. 
 for the purpose of applying for a com- 
 mission, 1248. 
 
XNtoix. 
 
 ADJOURNMENT— eifefo'teecZ. 
 
 Security required on when cause cbm- 
 menced by warrant, 1233, 
 
 iboM Opon, 1204, 1334, tb 1237. 
 penalty and terms of, 1334. 
 liability'of dbligers npon, ,1223. 
 jflstifibati'on of sureties, 1336. 
 
 if defendant doesna't appear cattSe can- 
 not be adjourned to another place, 
 1368; if he does appear, place may 
 be cMnged against Ms consent, 1368. 
 
 of a constable's sale or execution, 1635. 
 when defendant must bear the loss of, 
 
 1635. 
 ■Constable iiot "to tedeire cdhsMeration 
 for, 1635. 
 
 ADMINISTRATORS, 
 
 See ExEcnioBs knt> AiKrm'sTKATOES. 
 
 ADMISSIONS, 
 df. a party evidence against him, 1374, 
 
 1399 to 1408. 
 admissible to prove mutual EiccaUnts, 15. 
 
 to Show illegality of agfeeniient, 38. 
 of fegeiit, admissible against principal, 
 
 1S9, 1403. 
 
 one to whom principal has referred 
 for informa,tion, 1403. 
 
 one of several joint debtors, 1309. 
 
 where liability is several, 1399. 
 by one partner after dissolution, not 
 "binding, 1399.f 
 
 by partners, when binding, and when 
 not, 1399. 
 of a joint wrong doer, 1400. 
 oral, SuflScient to pi-6ve payment under 
 
 statute of liinitations, 1104 a. 
 of what witness will swear to, to pre- 
 vent adjournment, 1318. 
 when not sufficient to dispense with a 
 
 writing as evidence, 1363. 
 when it dispenses with the production 
 
 of a subscribing vsdtness, 1374. 
 may be by not denying statenientsmade 
 
 in one s p]*esence, or in a writing, 
 
 1399. 
 made in a pleading, when conclusion, 
 
 1403, 1405. 
 effect of, when made in a teaty for a 
 
 compromise, 1404. 
 in the recital of a deed, 1405. 
 by infants and married woriien, 1405. 
 the whole must be taken together, 1406. 
 if part of writing is read, the rest, or 
 
 paper referted to in it, or on which it 
 
 is based, may be read, 1406. 
 not conclusive, how to be weighed, 
 
 1399, 1401, 1406. 
 contaiaed in a receipt, effect of, 1401, 
 
 14tf6. 
 when conclusive by way of estoppel. 
 
 See Estoppel. 
 
 made when a witness in another action, 
 1407. 
 
 ADMISSIONS— (M«itoe«. 
 
 by the "pkrties Wi^theSs in afio'ther 
 action, not evidence, 1407. 
 former owner or holder, ot the as- 
 signor of propeftfjr, 1^07 a, 
 when part of the trahsactroli, 1408. 
 
 See ReS QmTJE. 'EVroBifCE. 
 
 ADVANCE PAYMENT, 
 is agood consideration for an agreement, ; 
 36. 
 
 ADVANCES, , 
 factor may charge a percentage on, 03. 
 
 AirElDAVIT, , , 
 how made and verified,. 803. 
 need not be signed by affiant if his lii me 
 
 is in it, 803. 
 when must be madCj on application for 
 warrant, 803. 
 when it need not be made on such 
 application, 803, 807. 
 , What 'it must contain, and its form, 
 803 to 805, 808 to 811. 
 for short summons, requisites and form 
 of, 796. 
 an attachment, by whom made, 818, 
 831, 824, 827. 
 what to contain, and form of, 818, 
 
 820, 821, 824 to 830, 833 to 836. 
 must state fticts and not opinions, 
 828, 829, 833, 834. 
 when need not be entitled, 811. 
 justice may draw celtain, and charge 
 for them,. 882. . 
 liable, if affidavit, when required, is 
 defective or wanting, 847. 
 of service, by one deputized to. make it, 
 
 not legal,. 870. 
 how authenticated, so as to be read in 
 evidence, 1359. 
 when made in other states, 1361, 1362. 
 when necessary to confession of judg- 
 ment, 1543, (114,) 1513. 
 that justice is a material witness, 981 to 
 
 986. 
 for an execution against the person, 
 1568. 
 
 AFFINITY, 
 how degrees of determined, 1 ; when it 
 
 ceases, 1. 
 disqualifies justice from acting, even by 
 consent, 1, 3, 1364, 1543. 
 he cannot take a confession of judg- 
 ment, 1543. 
 relationship by, to one of several par- 
 ties, or stockholders, disqualifies, 3. 
 justice should dismiss cause, where he 
 is related by, 1364. 
 cannot non-suit, 1364., 
 any judgment rendered by him is 
 void, 1364. 
 
WDSX: 
 
 969 
 
 AFFINIT Y— CoftJOTwed 
 
 may ijorform alny mere ministerial 
 kc'ts, la.' 
 discLualifies jurors, 1378, 1395. 
 'constable from serving venirk 1391, 
 1393. 
 See Consanguinity, Relationship. 
 
 AFFIRMATION, 
 wten may be made, and its form, 803. 
 
 AFFIRMATIVE, 
 jSarty holding, opens trial and summing 
 up, 1306, 1341, 1342, 1499. 
 
 AGENT, GENERAL, 
 principal, who is, 153. 
 frhat Is an, and his auttidrity, 153 to 
 161 ; it includes all necessary to ac- 
 complish its purpose, 158. 
 who may he an, 153. 
 
 one who Is not coinpetent to con- 
 tract in his own name may be, 153. 
 infants and slaves, 153. 
 husbands, 153, lOBOas. 
 wife or nlarned women, 153, 
 243, 343, 372, 1037. 
 when his authority may be conferred 
 
 by parol, 154, 379. 
 when his authority to be in writing, 
 and when under seal, 137a, 154, 379. 
 when his authority may be inferred or 
 presumed, 137«, 154, 158, 243, 243, 
 379,1037. 
 is based on the principle of an es- 
 toppel in pais, 154. 
 purchaser frdrn, in such a case, 
 must be in gqpd faith, aiid for 
 ■ value, 154 
 when his authority is ratified, 127«,154, 
 
 176, 176a, 1037. 
 several instances of special agency do 
 
 not constitute a general one, 154. 
 when his author! ty_ termitiates, 173. 
 his, acts and adftrissions ostensibly in 
 the scope of his authority, bind his 
 principal, 153, 157, 159, 169, 174 to 
 177, 243, 264, 681, 1403. 
 
 and sometimes when they go be- 
 yond it, 152. 
 agency inust first proved, 159. 
 where person, dealing with him 
 knew, or had reason to, that he 
 exceeded his powers, 157. 
 instances where he was held to 
 have exceeded authority, 158. 
 cannot delegate his atithority, 160, 161. 
 authority conferred on several, when 
 
 part may act, 155. 
 must contract in the name of his prm- 
 Cipal, and how to do it, 160, 170, 361, 
 379. 
 payment to, when good, 167, 173. 
 
 may pay over moneys so received 
 to his principal, 167, 169. 
 may sign note or memorandum under 
 statute of fraud, 90, 137ffl, 146. 
 122 
 
 AGENT, ,(mSiTSB.kh—OonUnuedi. 
 
 accept deliveiy of goods under 
 statute of frauds, 93, , 
 gift for his principal, 586. 
 not personally liable if he acts in the 
 
 scope 6f his atithority, 169. 
 when not liable for indhey paid I)y him 
 to his principal, 169. : - 
 personally liable, 170. 
 of the government, when personally 
 
 liable, arid *hen not,. 169. . 
 may charge for procuring loans for his 
 
 principal, 63. 
 servant, when master liable for his acts, 
 174 to 177. 
 
 See Servaht. 
 is estojiped from denying rights of prm- 
 
 cipal, l76c. 
 one co-partner is, of the others, 193 
 Co-pa:rtners may authorize an, to make 
 
 or endorse notes, 377. 
 carrier, when he is "not purchaser's 
 
 agent, 342. 
 may accept bill for principal, or direct 
 another to write his name for that 
 purpose, 352. 
 give notice of dishonor of a bill, 437. 
 make or endorse a note, 377. 
 liability of principal for llis or his ser- 
 vant's misrepresentations, frauds, 
 torts and other wrongs, 77, 78, 364, 
 481, 485 to 489, 681, 766. 
 or for tliose of persons necess&rily 
 emijloyed by his agents or ser- 
 vants, 488, 766. 
 not liable for those who are not le- 
 gally such, 486. 
 for vittdictiye damages, 1528. 
 when he has claiih against principal for 
 negligence, &c., of a co-servant, 489, 
 489a. 
 he is liable to his principal, 489. 
 nloney received by, received to prmci- 
 
 pal's use, 307. 
 declarations of, not sufficient to prove 
 
 lie is Btich, 159. 
 notice to, when binding on principal, 159. 
 cannot buy of his principal, nor sell to 
 him, without his consent, 1765. 
 I act as agent for both parties, 1765. 
 have an interest adverse to his prin- 
 cipal, 1765., 
 when his note, for principars debt is 
 payment, 473. 
 note payable to him as agent, he 
 may sue in his own name, 363. 
 regarded as drawer or maker if he sign 
 principal's name without authoritv, 
 363. 
 suing on principal's note in his own 
 
 name, good ground of defence! 399- 
 when he has a general lien on his prin- 
 cipal's property, 590. 
 trover lies against ' him for^ disre- 
 gard of instructions, 635. 
 action against iiim should bo for 
 
970 
 
 INDEX. 
 
 AGENT, GENERAL— Craimiwff. 
 
 ■wrong, and when on implied 
 agreement, 683. 
 authority assumed, liable for dahi- 
 ages, 1530a. 
 must swear that he is an, in affidavit for 
 
 attachment, 835. 
 how to allege contract made by an, in 
 
 pleading, 956. 
 may show one is an, who appears in 
 
 writing as principal, 1040. 
 factor is an, 161. 
 
 See Factor. 
 
 AGENT, SPECIAL, 
 
 who is, and his authority, 156. 
 
 must pursue authority strictly, 156. 
 
 one dealing with mm must, acquaint 
 himself with his authority, 156. 
 
 has all authority necessary to accom- 
 plish object of agency, 158. 
 
 principal may enlarge his actual power, 
 by his conduct, 156. 
 
 See Agbnt, Gbnbkal. 
 
 AGISTORS, 
 of cattle, to use ordinary care, 104 (11). 
 
 AGREEMENT, 
 
 See CONTBACT. 
 
 ALE, OR STRONG BEER 
 is spirituous liquor, under license laws, 
 1343. 
 
 ALIEN, 
 
 may act as attorney for another, 919; 
 cannot be a juror, 1395.. 
 
 his declaration that he is naturalized is 
 prima facie sufficient, and he need 
 not produce his papers till doubt is 
 thi'own by other side, 1395, note 4. 
 
 ALIEN ENEMIES, 
 who are,. 35. 
 
 cannot contract, unless they are resi- 
 dents, 31, 35. 
 
 ALLONGE, 
 what is an, 379. 
 
 ALTERATION, 
 of a bill or note, without the consent of 
 
 the parties, renders it void, 366, 367. 
 what is an, 366. 
 
 is material, and what immaterial, 
 366. 
 of one duplicate, does not affect the 
 
 other, 366. 
 does not aflFect those who assent to it, 
 
 366. 
 when made by lead pencil, 366. 
 when filling up of blanks is, or is not, 
 
 366. 
 presumption and proof as to when and 
 
 by whom it was made, 368, 1045. 
 
 ALTERATION— Confowuei?. 
 of contract, by consent, valid, 1039, 1040. 
 of sealed executory contract, when 
 
 valid, 1089, 1040. 
 of bill or note by subsequent agree- 
 ment, on good consideration, valid, 
 
 365. 
 if made by a stranger, does not affect 
 
 bill or note, or other instrument, 368fls, 
 
 1044, 1045. 
 made by either party, without consent 
 
 of others, avoids it, 366, 367, 10^4, 
 
 1045. 
 when set out in pleading, 961. 
 
 AMBASSADORS, 
 
 when privileged from arrest, 879 (3): 
 arrest of, void, 884. 
 
 AMBIGUITY, 
 in contracts, how explained or made 
 
 certain, 109, 1431, 1431as. 
 latent, what, 109; may be explained, 
 
 1433. 
 patent, what, 109 ; may not be explained, 
 
 1433. 
 
 AMENDMENTS, 
 of pleadings, when allowed, 945 (11), 
 
 951, 1193, 1498. 
 on what terms, 945 (11). 
 of proceedings in justices' courts, 665. 
 of process, 665, 951 ; of execution, 665. 
 of complaint after issue, setting up title 
 
 to real estate, 1193. 
 of verdicts by jury, 1337, 1338. 
 of pleadings at the trial is in justice's 
 
 discretion, 1498. 
 
 when should be ordered, 1498. 
 of judgment not allowed to correct 
 
 clerical error, 1553. 
 of a charter, when does not release sub 
 
 soribers to stock, 136. 
 of an attachment against property, 841. 
 general rules relative to, 1661 to 1665. 
 
 ANDIRONS, 
 when exempt from execution, 1586. 
 
 ANIMALS, 
 property in, 545, 563, 638. 
 
 in nsh in a private pond, 545. 
 dogs, cats, oysters, or wild animals, 
 
 563, 638. 
 bees and a bee tree, 563. 
 increase of animals let, to hire or 
 lent, 587. 
 destroyed by fire at hotel, liability for, 
 
 595. 
 action for injuries to, 633, 638 to 644. 
 care to be taken by owner to prevent 
 
 injuries by, 494. 
 caravan of, owner to give notice of ap- 
 proach, 495(J!. 
 injuries from ferocious, 494 to 497. 
 
 owner responsible for, without no- 
 tice, 494. 
 
INDEX. 
 
 971 
 
 ANIMALS — GonUmted. 
 
 although he has undertaken to 
 
 secure them, 495. 
 when one may kill, 638 to 645. 
 injuries from domestic, 494 to 497. 
 
 owner not responsible for without 
 aotlce, or negligence, 494, 641. 
 notice unnecessary when injury 
 committed in another's close, 
 494. 
 injuries from dogs, 639 to 644. 
 
 See Dogs. 
 
 when any one may kill, 638 to 641, 
 643 to 645. 
 owners of may be compelled 
 to kill them, 639, 640. 
 one may keep dog for his protec- 
 tion, 496. 
 how he may use him, 496, 638. 
 injuries by animals of two owners, no 
 joint action lies, 643; how damages 
 apportioned in such a case, 643, 1534. 
 involuntary trespass committed by, 516, 
 
 541. 
 when owner of, liable for injuries to 
 land by them, 536, 537a, 535 to 543. 
 is bound to keep them at home, 536. 
 one may drive them from his lot, 
 638 ; may not kill or poison dogs, 
 geese, &c., trespassing on him, 
 638, 643. 
 complaint in action for injuries by, 970. 
 what one is bound to fence against, 536, 
 
 535 to 540. 
 not to run at large in the highway, 538, 
 535, 597, 699, &c. 
 statute relative to is constitutional, 
 
 533. 
 rules relative to, in other states, 535. 
 
 See Cattle, Estbats, Dogs. 
 
 ANSWER, 
 
 defined 945' (4), form and contents of, 
 945 (4, 5, 9), 946, 948. 949. 
 
 may be oral or in writing, 945 (3) ; need 
 not be verified, 945a. 
 
 when to be made, 988, 991. 
 
 demun-er to, 945 (6) ; amendments 
 thereon, 945 (7). 
 
 variances between and proof, when dis- 
 regarded, 945 (10). 
 
 closes pleadings, 945a. 
 
 how statutes, public and private, plead- 
 ed in, 948. 
 
 legal fictions in, abolished, 949. 
 
 construction of, to be liberal, 950. 
 
 ancient classes of, and when used, 993. 
 dilatory, 993; practice and judg- 
 ment on, 993 to 996. 
 
 of matters in abatement now to be 
 joined with those in bar, 996, 997, 
 1008. 
 
 See Abatement, Pleading. 
 
 A'NSWE'R— Continued. 
 
 to the jurisdiction, 998. 
 
 to- the person of the plaintiff, 999. 
 
 to the person of the defendant, 1000 
 
 to 1003, 1005. 
 to the process, 1003. 
 to part of cause of action, 1007. 
 need not ask any judgment, 1006. 
 forms of. 
 
 See Index to Fokms. 
 
 by partners, 1009. 
 
 in bar, what to contain, 1011, 1046 ; ta- 
 ble of defenses in, 1011. 
 infancy, 1185. 
 
 former trial of part of causes of ac- 
 tion, 1088. 
 set-off, 1051, 1076, 1077. 
 
 to a part of complaint, 1156. 
 
 statute of limitations to part of 
 
 complaint, 1156. 
 
 is waived if not answered, 1106. 
 
 tender to part of complaint, 1156. 
 
 what answer of must allege, 
 
 1177 to 1180, 1183. 
 supported by proof that tender 
 was waived, 1166. 
 justification by several defendants, 
 1189. 
 officers, 1187. 
 
 of part of wrongs charged in 
 complaint, 1191. 
 of license, title to real estate not in 
 
 question, 143, 507, 1195. 
 title to real estate to a portion of 
 the complaint, 1196a, 1199. 
 may be made after issue joined, 
 1193. 
 award must be pleaded, 1117. 
 of payment of money into court to 
 part of plaintiff's demand, 1150. 
 supported by proof of tender, 
 1345. 
 different defenses answered to separate 
 
 cause of action, 1156, 1196a, 1199. 
 that next friend was not appouited for 
 infant plaintiff, 936. 
 
 APOTHECARY, 
 his implied undertaking, 390. 
 
 See Professional Person, Work and 
 Labor. 
 
 APPEAL, 
 
 provisions of the Code concerning, 1650. 
 appellate court, (353.) 
 how brought, (353, 354) 
 stay of execution upon, (355 to 358.) 
 security, (356.) 
 to whom security given in case of 
 
 justice's death, (358.) 
 to whom notice of appeal in case of 
 
 justice's death, &c., (359). 
 return by the justice, (.SGO, 861.) 
 defective return how amended, (863.) 
 
m2 
 
 INDEX. 
 
 A'PF^AL—Gontintied. 
 
 determination of, in case of death of 
 
 justice, (363.) 
 bearing or new trial of, (853, 364, 365, 
 366), 1651. : 
 
 judgment upon, (366.) 
 judgment roll, (367.) . ; 
 
 rule in relation to costs of, (868.) 
 restoration Of amount collected on 
 
 judgment, (869.) 
 set-off costs, (370.) 
 costs upon, (871.) 
 notice under (358), must be in writing, 
 1650a. 
 
 form of, 1650flt. 
 what notice of appeal, where fiew trial 
 Is to be had, should contain, 1651. 
 form of, 1651. 
 
 form of, where apjleal is on questions 
 of law only, 1651. 
 verbal notice insufficient, 1651. 
 may be by portion of judgment 
 debtors, 1651. 
 time of service, of how Computed, 
 1651. 
 may be brought on a judgment of non- 
 suit, 1565. 
 if notice not served in tiiue, appeal in 
 valid, even if justice makes return, 
 1651. 
 costs in court below must be paid, 1651. 
 justice may waive the payment of his 
 fees for making return, 1651. 
 in New York city the |3 must be 
 paid, 1^51. 
 stay of proceeding upon, 1653, 1658. 
 return may be compelled by attach- 
 ment, 1653. 
 forms of, 1653. 
 by whom to be made and what to 
 
 contain, 1654. 
 constrflction given to, 1654a, 1660&. 
 See EviDBNCE. 
 
 by justice out of office, 1655. 
 amendment of, 1655 to 1658. 
 correction of judgment, by agreement 
 
 of parties, 1660a. 
 judgment to be rendered, according to 
 the justice of the case, 1650 (366). 
 APPEAKANOB, 
 of the parties in an action, 905 to 943. 
 justice should wait an hour for, 905, 916, 
 as to adjournment, 1331. 
 when, for a good reason, may wait 
 longer, 906, 907, 911. 
 without objection, when waiver of ir- 
 regularities or errors, 30, 795, 831, 833, 
 903a, 1337. 
 when and when not waiver of void 
 
 process, 652. 
 not a waiver of plaintiff 's on return 
 
 of warrant, 873, 915. 
 is of, officer's return to process, 868. 
 plaintif&, when waiver of defendant's, 
 940. 
 
 APPEARANCE— C7«iwfj»»e6f. ^ , 
 defendant's, when waiver of plaintiff's, 
 938, 989. 
 necessary to authorize judgment for 
 
 him, unless waived, 940. 
 when necessaiy to authorize one 
 against him, 941. 
 to make objection, no waiver, 30. 
 
 See Waiveb. 
 after service of attachment suisersedes 
 
 service of summons, 903. 
 neglect of, by parties or justice, is a dis- 
 continuance, 906 to 909. 
 when may be permitted after ~defend- 
 ant's default, 909 to 912. 
 required of plaintiff, cm return of 
 
 warraint, 873, 913 to 916. 
 if there is none, after reasonaljle time, 
 defendant discharged, 913 to 915. 
 by plaintiff, on return of process or 
 afterward, necessary, 915, 938, 989. 
 ■waived by defendant's cohesion of 
 judgment, 939. 
 statutory 'pirovisions concurring, 917, 
 
 934, 925. 
 by an attorney, 917, 919 to 924, 934. 
 who may be an, 917, 919. 
 when constable may be and when 
 
 not, 917, 919. 
 Same person cannot appear for both 
 
 parties, 919. 
 when proof of his authority neces- 
 sary, and what sufficient, 930 to 
 933. 
 warrant of attorney, 933, 933. 
 by a corporation, 918. 
 by an infant, statutory provisions con- 
 cerning, 934, 935. 
 
 if infant plaintiff appears without 
 guardian, suit should be dismissed, 
 926. 
 but if he has judgment, it vrill not 
 
 be reversed, 930. 
 if none is appointed for infant 
 defendant, judgment in his favor 
 will be reversed, 930, 941. 
 mere declaration of plaintiff that he 
 is infant sufficient to authorize 
 the appointment of guardian, 937. 
 manner of appointment of guardian, 
 928. 
 he may employ an attorney, 934. 
 
 See Infant. 
 of an idiot, 935. 
 
 See Idiot. 
 
 of a married woman, who is an adult, or 
 
 an infant, 936, 937. 
 there is none, though party is present, it 
 
 he declines to take part, 940a. 
 by defendant, Who is informed there is 
 
 no cause against him, 940J. 
 if defendant does not appear, plaintiff 
 
 must prove his case, M~), (8.) 1366, 
 
 1541. 
 
INDEX. 
 
 9Y3 
 
 APPLICATIOlSr, 
 for a summons. 
 
 £fe6 SjJMMONa. 
 
 short summons. 
 
 8e^ SuMMOss., 
 warrant. 
 
 See Waerant. 
 an attachment. 
 
 See Attachment. 
 
 papers may be prepared, and. charged 
 
 tiar, by justice, 833. 
 of payments, law of, 1104&. 
 
 APPRENTICE, 
 master of, liable for his suppo^;t, 343. 
 entitled to earnings of, 303. 
 when agreement to pay therefor is 
 
 implied, 303. 
 may recover for harboring, injuring, 
 
 or enticing him away, 498 tp 501. 
 has the right to correct him, 500, 
 note 7. 
 
 See Master., 
 
 ARBITRATION AND. AWARD, 
 statute concerning, 1118. 
 does not affect common law arbitra- 
 tions, 1119i 1133. 
 submission to, \>j. whom may be made, 
 1118, 
 infants, with guardian's consent, 1018. 
 n^araied women, of ipatters relating 
 to their separate property, 1083», 
 1119. 
 one partner cannot without consent of 
 others, 309, 1119. 
 
 if he does binding on him only, 1119. 
 
 submission, to be irt writing, under the 
 
 statute, 1118, 
 
 by parol at common law, 1119, 1133. 
 
 by bond or mutual, promissory notes, 
 
 1133, 1137, 
 ig good consideration for an agree- 
 ment, 113. 
 to be. liberally construed, 1137. 
 of all claims relative to partnership, 
 does not open old, settlements, 1130. 
 by two on one side and one on the 
 
 other, what it embraces, 1130. 
 must be followed, or. award void, 
 1133, 1136, 1180. 
 except good parts can be separated 
 from the bad, 1133, 1130. 
 may be to two arbitrators, to select a 
 third, 1138, 
 proceedings in such cases, 1138. 
 revocation of and by whom made, 
 1139. 
 action for and damages in, 963, 1516. 
 parties cannot withdraw anything 
 from, 1131. 
 what may be submitted, 1118, 1133, 1135. 
 
 ARBITRATION— CfoiJjmed!. 
 
 not title to real estate, 1118, 1135. 
 may, questions of location or bound- 
 aiy, or equitable title, 1130. 
 arbitrators may, or not, be sworn, 1118. 
 
 H39 a, 1140. 
 witness may be compelled to appear on. 
 1118. 
 subpoena for obtained from a iustice, 
 
 1139. 
 oath to may be waived, 1139 a. 
 proceedings on heai-mg, 1118, 1133. 
 time and place appointed and notice 
 given by arbitrators, 1137. 
 not necessary of, when award 
 is to be made, 1137. 
 arbitrators should appoint time and 
 place of hearing, and give notice, 1137. 
 all to meet, 1134. 
 
 need not concur in decisions, 
 1134 
 cannot maJre a subsequent award, 
 
 1131. 
 majority of, may make award, 1134. 
 should not open settled accounts, 
 
 1130. 
 cannot contradict an award they 
 
 have signed, 1134. 
 may recover their fees, 395. 
 award must follow submission, or it is 
 void, 1133, 1136, 1130. 
 may prove that it does, or does not, 
 
 113Q. 
 may be gpod in part, aad bad in 
 
 part, 1133, 1130. 
 not vitiated if signed also by one 
 
 not arbitrator, 1133, 1134. 
 when by majority, binding, 1134. 
 when need not be in writing, though 
 
 required by submission, 1119. 
 subsequent one cann,ot be made, 
 
 1131. 
 when must be made, 1136. 
 to be liberal ly construed, 1130, 1138. 
 must dispose finally of the matters 
 
 submitted, 1131. 
 when it may be by parol, 1119, 1130. 
 Ttoid, if it requires strangers to sub- 
 mission to do anjrthing, 1130. 
 ifarbitratorshad resigned, 1136. 
 must be final, 1131. 
 
 when it is so. 1131., 
 must be complete, perfect and cer- 
 tain, 1133. 
 when it is such, 1133. 
 may award costs, 1133. 
 
 go beyond penalty of arbitra- 
 tion papers, 1133. 
 promise to correct mistakes is void 
 
 for want of consideration, 1134. 
 performance of, when to be averred 
 
 in pleading, 1135. 
 when need not be sealed, 1138. 
 form of, 1138. 
 must be pleaded, 1117. < 
 when a release, 111& 
 
974 
 
 INDEX. 
 
 ARBITRATION— CraijjiMgd 
 
 infants may ratify after tliey become 
 of age, 1019. 
 when final between the parties submitting, 
 llSl, 1123. 
 
 ARMS AND ACCOUTREMENTS, 
 when exempt from execution, 1586. 
 
 ARCHITECT, 
 
 his implied undertaking, 390. 
 See PROFBSSiONAii Pbkson, Wobk and 
 
 Labok. 
 ARREST, 
 what is an, 685. 
 how made, 685 to 691. 
 
 when process is to be shown, 686. 
 when agreement not to make, is void, 
 
 49. 
 when may be made by one who is not 
 
 officer, 883. 
 ' right to break into or enter a dwelling- 
 house to make, or to recapture, 687 
 to 691, 881, 883. 
 who protected from, in a dwelling-house, 
 
 689. 
 cannot be made on Sunday, 880. 
 
 when made on Saturday; on per- 
 sons observing it as the Sabbath, 
 793. 
 one who escapes may be retaken on 
 Sunday, 880. 
 detaining prisoner after an, 885. __ 
 officer may require aid to assist him in 
 making, 673,886. 
 on whom he may call, 673, 886. 
 liability of one who assists him, 
 673, 886. 
 women are not liable to, in actions on 
 
 contract, 879 (5). 
 who are privileged from, enumerated, 
 879, 880, 1633 (158). 
 privilege is personal, and may be 
 
 waived, 879. 
 one privileged who is sued with 
 others, does not lose privilege, 
 879. 
 if arrested, privileged person must 
 plead it, or move for discharge, 
 884. 
 when witness is privileged from, 
 879 (10), 1335. 
 he may waive it, 1335. 
 on civil warrant, 873. ^ 
 
 notice to be given to plaiatiff of, 
 
 873, 874. 
 how long to continue, 874 to 877, 
 
 913, 913, 914. 
 plaintiff to appear on, or defendant 
 
 discharged, 913, 914. 
 defendant may be discharged on 
 giving security, 914. 
 on execution against bodj', when a sat- 
 isfaction, 1578. 
 
 See Execution. 
 
 ARTIFICE, 
 on sales to disguise defects, 79. 
 
 See Prattd, Contkact, 'Waeeastt. 
 
 ASSAULT, 
 
 actions for not in justice's jurisdiction, 5. 
 
 injmies from negligence are not an as- 
 sault, 7. 
 
 on wife, child or servant, when actioE 
 lies for, 7, 14. 
 
 ASSENT, 
 subsequent, when makes partnership 
 liable for unauthorized acts of a part- 
 ner, 301. 
 
 ASSIGNABLE, 
 what causes of action not arising on 
 contract are, 743, 743a, 
 
 ASSIGNEE, 
 when he may sue on demand assigned 
 to hkn, 742, 743a. 
 on attachment bond assigned to 
 him, 893a. 
 right of set-off against, 1053, 1054, 1061 
 to 1068. 
 by him, 1053, 1055. 
 of insolvent, set-off against, 1053, 
 1067. 
 takes, subject to what defenses, 1064. 
 of contract, complaint by, 973. 
 when payments by assignee of insol- 
 vent, revive debt, 1103. 
 when an incompetent witness, 1449 (399). 
 of unpaid stock, liability therefor, 126. 
 
 ASSIGNMENT, 
 of a right of action does not require a 
 consideration, 25, 743fls. 
 is perfect by delivery, 25. 
 of lease not a surrender, 149. 
 
 when assignee liable for rent, 336. 
 limited partnerships cannot make, as 
 
 insolvents, 189. 
 one partner cannot make a general, for 
 benefit of creditors, 193. 
 may assign an account due firm, 
 197. 
 what is and what not the subject of, 
 
 743a. 
 by one plaintiff of his interest in judg- 
 ment, valid, 744. 
 may be made of an attachment bond, 
 
 892a. 
 relative rights of assignee and debtor, 
 
 1064. 
 payment to assignor after, 1064. 
 for the benefit of creditors, 1601. 
 
 ASSIGNOR, 
 of unpaid stock, when not liable for, 
 
 136. 
 admissions of an, 1407a. 
 
INDEX. 
 
 9Y5 
 
 ASSOCIATIONS, 
 joint stock, how to sue and be sued, 193. 
 certain, to file statement of their mem- 
 bers, 192a. 
 cannot plead usury, 52. 
 
 nor recover usurious money paid 
 by them, 53. 
 
 ATTACHMENT, 
 statutory provisions concerning, 714. 
 may be issued and returnable anywhere 
 in justices' coimty, 1. 
 only in actions on contract, 9. 
 described, 815. 
 
 long and short, and what each is, 816. 
 long, when issued, under revised stat- 
 utes, and non-imprisonment law, 
 817, 830, 833, 835a. 
 application and affidavit, both in wri- 
 ting, required, and their contents, 
 663, 817, 818, 831, 828 to 835a. 
 maybe drawn by justices, 833. 
 when to be made, 818, 831. 
 facts, not beliefs or inferences, to be 
 
 stated in afldavit, 828, 831, 884. 
 how taken advantage of, when defec- 
 tive, 830, 881. 
 great care necessary in drawing it, 
 
 838. 
 may be by examination under oath, 
 
 835. 
 need not be signed, 835. 
 one made in another case may be 
 
 used, 835. 
 made by agent, he must swear he is 
 
 such, 835. 
 witnesses may be subpoenaed to make, 
 
 833, 836. 
 bond must be given, 663, 819, 837 to 
 839. 
 conditions of, 819, 837. 
 by whom executed, 838. 
 surety's name need not be in body 
 
 of, 838. 
 must be a technical one, and follow 
 statute, 838a. 
 covenant or agreement under 
 seal insufficient, 838a. 
 extends to final determination of 
 
 cause, 839. 
 damages on, 889, 1515. 
 form of long attachment, and what it 
 should contain, and general requi- 
 sites of, 840, 849 to 852. 
 to be served at least six days before 
 retumday, 887, 900. 
 short, when issued, 833, 843. 
 issues when short summons may be, 
 
 843. 
 application for, 845. 
 affidavit and bond required for, 843, 
 
 844. 
 form of affidavit, 844. 
 by whom bond to be signed, 843. 
 rules relative to, generally similar to 
 long, 843. 
 
 ^ATTACBMENT— Continued. 
 
 differs mainly in tune of return, 846. 
 who is non-resident against whom it 
 
 issues, 843. 
 form of, what to contain, and general 
 
 requisites of, 840, 846, 849 to 853. 
 to be served at least two days before 
 
 return day, 887, 900. 
 when issued against one not in the- 
 county, 822. 
 when justice's conclusion on the facts 
 
 stated in affidavit conclusive, 830. 
 when no summons issues on return of, 
 
 846a. 
 care requisite in issuing, 847. 
 if justice does not follow statute he ren- 
 ders himself liable for acts done under 
 it, 847. 
 if affidavit for is defective, justice not 
 
 liable, 830, 831. 
 when issued, justice cannot supersede it. 
 because affidavit is untrue, 848. 
 he cannot try that question, .848. 
 not to be issued, returnable, nor served 
 ou Sunday, nor election day, 853, 873. 
 constable may serve one. in his own fa- 
 vor, and charge fees, 869. 
 cannot deputize another to serve it, 
 869. 
 justice may deputize one to serve it 
 without fees, 870, 904. 
 whom he may deputize, 870. 
 deputy must make return of service ; 
 his affidavit illegal, 870. 
 service and return of, 887 to 905. 
 what goods may be attached, 888, 1585^ 
 &c. 
 subject to right of stoppage in 
 transitu, 337. 
 
 See Execution. 
 
 priority of lien of, 677, 678, 
 inventory to be made, 887. 
 form of, 899. 
 
 copy of same and of attachment 
 to be served, 887,-897 to 901. 
 if bond given, goods attached not to be 
 removed, 889. 
 .sureties to the bond, 890. 
 by whom approved, 889 to 893. 
 must conform to statute, 891. 
 form of, 891. 
 may be assigned, 892a. 
 amount of penalty in,, 893. 
 by claimant of the attached property, 
 889, 890, 893. 
 lien of the attachment, 894. 
 
 when lien lost or ceases, 894, 896. 
 when, if security is given on ap- 
 peal, 896. 
 constable must safely keep the attached 
 goods, 894. 
 may deliver to receiptor, if no bond 
 given, 895. 
 return must be made on day specified, 
 901. 
 
9.76 
 
 IIJDEX. 
 
 attachment;— OonUmeO. 
 
 what to contain, and form, of, 901, 
 902. ■■ '-" ' ' ' ' " "'" "■ 
 proceedings on tlie return, 903. 
 w^en sijmmons is to issue, 903. 
 form 6f, abd when returnable, 
 903. 
 judgment qMnot be given for plain- 
 tiff, unlesslie appears, 915; 
 judgment on, cannot be used as a set- 
 off, 1052, 1074. 
 execution on, when leviable only 
 
 'on attached propertjr, l556. 
 when an action will lie on, 1556. 
 power of the justice to/amend, 841. 
 against defeultihg witness. 
 
 See Witness. 
 
 dpfaulting- juror, 
 
 See Jtjrok. 
 
 not to issue for, infant plaintiff, without 
 appointment of guardian, 936. 
 
 See Process. 
 ATTOKNBY, ■- -^ 
 
 may make agreement with client to re- 
 ceive part of recovery towards his 
 compensation, 45, 393. 
 or to conduct a cause gratis, 293. 
 degree of skill regujfed of him, 290, 683. 
 this is, an implied undertaking, 290. 
 wien liable fpr moneys received, 307 (5). 
 when hecan, and cannot recover for his 
 services, 286, 390, 29S. 
 client may shd\V that he did not do 
 his duty, 390. 
 that the services were negli- 
 gently performed, &89, 290. 
 or performed under a special 
 agreement, 393, 
 attorney may show his client had 
 no defense, 290. 
 must show 1-etainer, &o., 293. 
 interest, when it begins to run on his 
 
 claim for services, 1525. 
 has lien on client's papers and money, 
 691. 
 for what charges, and what amount, 
 
 59i: " ■ ^ 
 
 principal liable for acts of, 766. 
 
 when attorney liable for Unaiithorized 
 
 levy, 765. 
 non-resident, sued for illegal, charges, 
 
 must be by warrant, 801'. 
 when privileged from arrest, 879. 
 who may appear by, 9l7. 
 who may be. 917, 919. 
 
 no' professional Ones in justices' 
 
 courts, 919. 
 when constable can and and cannot 
 be, 917, 919. 
 justice's law partner or clerk 
 cannot bej 917. 
 same per.son cannot appear for both 
 parties, 919. 
 
 ATTOKNET— Cfa»<mwi. 
 authority of to appear may, be oral Or 
 
 written, 917, 923: ■' 
 
 when, and what, proof of required, 
 917, 920 to 924. ' 
 
 when not presumed, 931. 
 
 when tliat of wife is inferred, 931. 
 infant cannot appear by, 930, 933. 
 
 his guardian may appear by, 934. 
 idiot cannot appear by, 935. 
 hoT^ to set out contracts by, in pleading, 
 
 956. 
 complaint against for not collecting, 
 
 when statute of limitations begins to 
 
 run in actions against, 1097, 1100. 
 
 in actions by one for his services, 
 1097, 1535. 
 demand' of, for moneys collected, when 
 
 necessary, 1097. ' 
 tender to, w;hen good, 1175. 
 may make oath for his client on adjoum- 
 
 mefit, ISlOi 
 privileged coiomimicalaons to, 1457 to 
 
 1468. ■ ■ . 
 
 ' /Sfee Pboeessioital Peb^oot; TSCokk and 
 Labor ; 'PErviLEGBD Commpnica- 
 
 TIONS. 
 
 AUCTION, 
 when bargain is struck at, 1637. 
 
 ATJCTION?ER, 
 sales by, when not in statute of frauds, 
 
 91,137a. 
 may sign the note or memorandum 
 
 un^er that statute for both parties, 91, 
 
 137a.' 
 
 when he inust do it, 91. 
 may sue in his own name for goods sold 
 
 by him, 17-1. 
 
 set-off in such cases, 171. 
 when, personally responsible for deposit 
 
 moneys, 171. 
 
 AUTHENTICATION 
 of proof or acknowledgment, 1371 to 
 
 1374. 
 
 of copies of records, 1353 to 1^56, 1357 
 
 to 1363. 
 
 B 
 
 BAGGAGE, 
 What is, 105 (8). 
 
 carrier's liability for, anji wien it ceases, 
 105 (8). 
 
 BAIL, 
 
 privileged from arrest, 879. 
 when to be required on adjournment, 
 1205. 
 if not required, justice loses juris- 
 diction, 1205. 
 when defendant to give, if required by 
 plaintiff, on adjournment, 1212, 1223 
 to 1337. 
 
INDEX. 
 
 977 
 
 BAIL — Continued. 
 
 defendant has reasonable time in 
 ■which to get, 1212. 
 lialDility of obligors on, 1225. 
 
 justification of sureties, 1226. 
 of constable, liable for his sales after 
 expu-ation of term, 1625. ' 
 
 Bee Security. 
 BAILEE, 
 who is a, 99. 
 
 responsibUity of, 100 to 107, 637, 1171, 
 1173. 
 when answerable for moneys re- 
 ceived, 1173. 
 not liable for deposit, till demand 
 
 and refusal, 100. 
 no demand necessary for money re- 
 ceived to deliver to another, 1173. 
 the various degrees of his responsibili- 
 ty, 100, 105, 637. 
 when responsible for slight, ordinary or 
 gross neglect, 101. 
 what these are, 101. 
 may make special agreement as to his 
 responsibility, 103. 
 exempt from liability fbr gross neg- 
 ligence, 102. 
 cannot from liability for actual 
 fraud, 102. 
 of a horse for his keeping, is gratuitaus, 
 
 102. 
 not liable for loss by inevitable accident, 
 or irresistible force, except by agree- 
 ment, 103,, 106. 
 what each are, 103. 
 as to robbery, 163 ; loss' by private 
 
 stealth, 103. 
 is so liable if his negligence has 
 contributed to loss, 106. 
 if sued for goods lost or damaged, must 
 
 show he used proper care, 1342. 
 when he cannot evade his responsibili- 
 ty for loss by negligence of others, 104. 
 when he may discharge responsibility 
 
 by tender of goods, 104. 
 officer's liability for goods taken on le- 
 gal process, 104. 
 exceptions to liability of, in specified 
 
 cases, 105. 
 when responsible for losses after refusal 
 
 to return goods bailed, 105. 
 may show goods taken from him by 
 law, 106J. 
 not that they are owned by a third 
 person, 1065, 625. 
 innkeeper, liability of. 
 
 See Inukbepbe. 
 
 common carrier, liability of. 
 
 See Common Carkibk. 
 
 to sell, when liable as for goods sold, 250. 
 has special property in things bailed, 
 
 and tfemporary right of possession, 
 
 564. 
 
 123 
 
 BAILEE— Cbn<mtt«(f. 
 when he may sue for conversion, or in- 
 jury to bailed property, 569, 758. 
 title to increase of goods bailed, 587. 
 to property baued and the same, or 
 the same or other of the same 
 kind to be returned, 588. 
 lien of bailee for hire, 593. 
 cannot set up title m, a third person, 
 
 1173. 
 liable for conversion for setting up title 
 to goods in third person, 625. 
 or using them contrary to purpose 
 or agreement of bailment,611, 625, 
 637. 
 constable is bailee of goods attached, 894. 
 
 his liability, 894. 
 tenderer of goods not accepted is bai- 
 lee, 1158. 
 his liability, 1158. 
 pleading in actions against, 965. 
 
 See Bailment, Bailor, Carrier, Com- 
 mon Carrier. 
 
 BAILMENT, 
 defined, 99. 
 
 instances of, 99a(. 
 distinguished from sale, 99«. 
 responsibility of bailee in, 100 to 107, 
 
 637, 1171, 1173. 
 classified, 100. 
 
 See Bailee, Bailor, Carrier, Common 
 Carrier. 
 
 BAILOR, 
 who is, 99. 
 
 when demand necessary, and when 
 not, before suit against bailee, 100, 
 625, 1173. 
 his right to sue for conversion of goods, 
 569, 611, 625, 637. 
 
 where goods used contrary to purpose 
 or agreement of bailment, 611, 625, 
 637. 
 title of, to increase of property bailed, 
 587. 
 
 when the same, or the same or some 
 other of the same kind, is to be re- 
 , turned, 588. 
 
 BANK, 
 may sue notes endorsed to its cashier, 
 
 743a. 
 officers, of to endorse paper held by it, 
 
 377. 
 
 BANK BILLS, 
 when a tender, 1165. 
 should be received as cash on sales on 
 
 execution, 1627. 
 may be levied on and sold, 1593 (19). 
 counterfeit, payment in is a nullity, 467. 
 should be promptly returned, 467. 
 party may sue immediatelj' for 
 debt. 467. 
 
978 
 
 INDEX. 
 
 BANK BILLS-Oontmued. 
 
 of insolvent bank, payment in is a nul- 
 lity, 467. 
 when to be returned, 467. 
 
 declared illegal, when payment in is 
 good, 467. 
 
 BANKERS, 
 have a general lien, 593. 
 
 BANKING, 
 no limited partnership in, 188. 
 
 BAK, 
 
 answer in, 993. 
 ' defenses in, 1011. 
 When they must be mterposed at the 
 
 first opportunity, 1080 to 1091. 
 requisites of answer in, 1046. 
 former suit for the same cause, 1079, 
 
 1080, &c. 
 a judgment for the same cause, 1079, 
 
 1080, 1091. 
 set-off in a former action, 1049. 
 omission to set-off claim in former 
 
 Action, 1050. 
 matter of defense in former action, 1080 
 
 to 1089. 
 release of cause of action, 1107 to 1113. 
 award, 1117. 
 
 See PLBADma 
 
 BASTARD, 
 reputed father and mother liable for 
 support of, 303. 
 
 but there must be express or implied 
 promise to pay it, 803. 
 child of wife, husband not obliged to 
 support, 304. 
 of daughter, her father not obliged to 
 
 support, 304. 
 of mother-in-law, son-in-law not 
 obliged to support, 304. 
 
 BATTERY, 
 
 actions for, not in justice's jurisdiction, 
 5. 
 
 injuries from negligence are not a bat- 
 tery, 7. . ,. ^ 
 
 on servant, wife or child, action lies for, 
 14. 
 
 BEDS, BEDSTEAD AND BEDDING, 
 when exempt from execution, 1586. 
 
 BEEP,* ,. 1KQ0 
 
 when exempt from execution, 1586. 
 
 BEER, STRONG, 
 is spirituous liquor under hcense law^ 
 
 1343. - 
 
 there may be ownership in, 563. 
 as to a bee tree, 565. 
 
 BETTING, 
 contracts of are void, 50, 398. 
 contracts in sales, where property not 
 
 to be delivered, but difference in price 
 
 paid, are void, 339. 
 
 BIBLE, 
 family, when exempt from execution, 
 1586. 
 
 BILL OP LADING, 
 when holder of may sue, 743a. 
 
 BILLS OP EXCHANGE AND PROM- 
 ISSORY NOTES, 
 given by one partner, when valid, 300 to 
 203. 
 
 See Partnebs, &c. 
 
 description and form of a bill, 345, 348. 
 foreign and inland bills, 346. 
 payee should be specified, when it is 
 
 made, 348. 
 omission of drawer's name docs not 
 vitiate, 345. 
 acceptance supplies the lack of it, 
 345. 
 parties to, 347. 
 what is, and what is not a bill, and 
 illustrative cases, 348. 
 a check is a bill, 348, 40,0, 433, 1379. 
 when bill is called an acceptance, 347. 
 must be accepted in writing to bind 
 
 the acceptor, 347, 350 to 358. 
 how a bill may be accepted, 350 to 
 353, 363. 
 date of acceptance may be proved, 
 353. 
 may be accepted by an agent, 353. 
 oral promise to accept not binding, 
 
 353. 
 when written promise to accept, or 
 otherwise, is deemed an accept- 
 ance, 351. 
 acceptor liable, though drawer's name 
 is forged, 349, 419. 
 similar character of accepted bills and 
 
 promissory notes, 349, 355, 416. 
 description and form of a promissory 
 note, 353, 854. 
 cases where papers held to be, or not 
 
 to be, a promissory note, 353. 
 on what written and what with, 353. 
 how signed, 354. 
 
 from what time computed when not 
 dated, 354, 365. 
 parties to a note, 355. 
 who may be, 370 to 874 ; a corpora- 
 tion may be, 370. 
 wliLn married women, infants, &c., 
 may be, 370 to 373ci, 1030a. 
 must be payable in a certain sum of 
 money, and not from a particular 
 fund, 356, 857, 453. 
 but may be directed to be charged to 
 particular fund, 357. 
 
INDEX. 
 
 979 
 
 BILLS OF 'EXCB.A.'NGE— Continued. 
 if it contain other stipulations tlian to 
 
 pay money it is not a note, 356. 
 in some states payable in chattels, 356, 
 "when payable on a contingency, 356, 
 358. 
 when may be payable, 856, 365. 
 when the maker is able, or when con- 
 venient, 356. 
 upon the happening of a contingency, 
 
 358. 
 if no time of payment, payable imme- 
 diately, though interest is to be paid 
 after a future event, 358, 365, 416. 
 time of, how and when it may be 
 
 altered, 365. 
 not payable till the expiration of the 
 three days of gra;ce', when they are 
 allowed, 397. 
 when presumed that the holder of, is the 
 owner, and in good faith, 67, 359,' 
 380, 386 to 391, 398. 
 otherwise of non-negotiable paper, 
 359. 
 payee should be specified, or bearer, 359, 
 360, 363 ; if to bearer, is transfera- 
 ble by deliverjr, 360, 398. 
 may be a fictitious person, 360; is 
 then transferable by delivery, 375. 
 if payee not specified, it is a contract, 
 and not bill or note, 359. 
 will warrant a. recovery for money 
 had and received, 359. 
 where there are two persons of the 
 name of the payee or other party, 
 some designation should be used, 
 359. 
 father and son of same name as payee, 
 father presumed to be, unless son 
 has it in his possession, 359. 
 may be to office's of an incorporated 
 company, ^^eir successors, 359 ; 
 or to steattiDoat and owners. 359. 
 may be to maker's order, 360. 
 when holder may fill in his nalme as 
 
 payee, 360. 
 to one by a wrong name, 860. 
 made by two, in the singular number, 
 they are joint and several makers, 360. 
 if signed by several with different 
 amounts against their names, each is 
 liable for the whole, 360. 
 endorsement of, when necessary, 300, 
 361, 363, 374. 
 kinds of, in full, restrictive and con- 
 ditional, 361 to 864. 
 presumption in cases of full, 380. 
 rights of holder under them, 361, 
 
 363. 
 by agents, partners, representatives, 
 assignees, cashiers, &c., and in 
 what manner, 861, 363, 377, 879. 
 by joint owners, 377. 
 if endorsed before acceptance, ac- 
 ceptor may be liable to two per- 
 sons, 381. 
 
 BILLS OF EXCHANGE— ConimMfii/ 
 after maturity, endorser maybe im- 
 mediately charged, 378', 447. 
 defenses against the endorsee 
 378. ' 
 
 for only part due, 396. 
 may be on any part of the bill or 
 note, or on separate paper called 
 allonge, 379. 
 of paper payable to bearer, 398. 
 holder of note endorsed in blank, 
 may fill it up as he pleases, 380. 
 this endorsement may be struck 
 out, 880. 
 legal efiect of, cannot be varied by 
 cotemporaneous parol agreement, 
 420, 
 when not negotiable, 363. 
 payee of, described in as agent, may sue 
 
 in his own name, 363. 
 one signing as agent, without authority, 
 
 is regarded as principal, 363. 
 need not express " for value received," 
 364. , 
 consideration is presumed, 364, 386, 
 
 388. 
 when partial faOure of, may be 
 shown in mitigation of recovery, 
 394. 
 take effect from delivery, 365. 
 
 that ia presumed to be ihe day of 
 the date, 365. 
 when alterations of, reudef them void, 
 366, 367, 368a, see 365. 
 
 what alterations are material and 
 immaterial, and how made, 366. 
 
 addition of another maker after 
 delivery, 366, 
 alteration of one duplicate does not 
 
 affect the other, 366. 
 the altered bill or note is good 
 against those who assent to it, 366.' 
 when holder may fill up blanks in, 
 
 360, 366. 
 presumption and proof as to when 
 and by whom alteration was 
 made, 368. 
 alteration by stranger or opposite 
 party does not avoid note, 368a. 
 a guaranty cannot be written over en- 
 dorsement of non-negotiable note, 867. 
 accommodation note, what is, 63. 
 when madfe for payee's accommodation, 
 any one may discount it, 369. 
 if such note is discounted at a rate 
 greater than seven per cent, it is 
 usurious, 63. 
 maiTied women may §ign as her hus- 
 band's agent, 373. 
 husband's right to wife's bills or 
 
 notes, 873, 373a. 
 wife may sue on her bill or note, 373a. 
 bona fide holder of, who is, 380, 388 to 
 391, 395. 
 
 when holder for a precedent debt is, 
 389, 389a. 
 
980 
 
 rCTDBX. 
 
 BILLS OF EXCHANGE— Oontinned. 
 rights of in paper endorsed, or not, 
 
 374. 
 holder is presumed to be bona fide, 
 
 380, 388, 389, 898. 
 when one is liable to bona fide holder, 
 
 as endorser, 880. 
 when paper fraudulently re-issued is 
 
 valid in his hands, 386. 
 when he can recover, though there is 
 a defense between original par- 
 ties, 388, 389, 389a. 
 not when founded on consideration, 
 prohibited by statute, 393. 
 payee, endorser of non-negotiable note, 
 liable as if it was payable to his 
 order, 376. 
 or as guarantor, 453. 
 once made negotiable may be trans- 
 ferred at any time, 878. 
 cannot be transferred for part of sum 
 due, 381. 
 
 may be for balance due, 881. 
 may be as security for smaller sum, 
 381. 
 
 holder will recover full amount, 
 381. 
 may be sold or endorsed for less than 
 nominal amount, 381, 396. 
 endorser then only liable for sum he 
 
 received and interest, 381. 
 guarantor liable for full amount, 381. 
 guaranty of, 883 to 386. 
 it must comply with, the statute of 
 
 fraud, 385. 
 may be written over endorsement of 
 
 non-negotiable note, 453. 
 when guarantor liable to subsequent 
 
 holders, 383. 
 whether guarantor liable or not, as 
 
 maker or endorser, 884. 
 when guaranty is of payment, no de- 
 mand or notice requiied, 383. 
 action in such case may be 
 brought on non-payment, 383. 
 if that it is good or collectable, 
 must prove it cannot be enforced, 
 388. 
 right to write a, over, endorsement of 
 
 non-negotiable note, 867. 
 when statute of limitations begins to 
 run in cases of, 1097. 
 when illegality or failure »f considera- 
 tion may be shown in defense, 388 to 
 396. 
 
 it may always be, by the original par- 
 ties, 894, 395. 
 what will bo deemed a diversion from 
 
 its purpose, 391. 
 cases when void under all circum- 
 stances, 393. 
 illustrations of the rule in relation to 
 
 defenses of, 394, 895. 
 when presumption of demand and dis- 
 honor, from lapse of time will afford 
 a d.'fcnse, 397. 
 
 BILLS OF EXCHANGE— Co»fo-M«A 
 is a defense that endorsee plaintiff 
 is only an agent, 399. 
 lost, actions upon, 400 to 408. 
 statutory provisions concerning, 400, 
 1879. ■ 
 
 apply only to negotiable paper, 401. 
 bank check are under this statute, 
 
 348, 400, 1379. 
 must be proved, not be presumed, 
 it was negotiable, 401. 
 evidence relative to, 401, 403. 
 plaintiff a competent witness, 403. 
 need not show tUl destroyed, 403. 
 how loss may have occurred, 403. 
 must be without plaintiff's fault, 403. 
 indemnity to be given, 400, 1379 (76). 
 if destroyed by accident, no indem- 
 nity necessary, 403. 
 may have been so lost before or after 
 
 it was done, 404. 
 loss may be inferred from lapse of 
 
 time, 403, 405. 
 when available in hands of lona fide 
 holder from finder, 404. 
 where bill cut in two to be sent by 
 
 mail and one-half lost, 406. 
 where part torn off and lost, 407. 
 obligations of parties to, 408 to 478. 
 of drawers and endorsers before 
 accepta,nce, 409 to 416. 
 they are similar, 413. 
 when drawer liable to drawee 
 for money paid, but not on 
 the bill itself, 409. 
 of the acceptor of a bill and maker 
 of a note, 416 to 430.- 
 their obligations are similar, 
 
 416. 
 liable without demand, 416. 
 tender by, to save interest and 
 costs, 416. 
 
 not liable for costs of suit 
 against drawer or endorser, 
 417. 
 'prima fade acceptor is debtor 
 
 of drawer, 418, 451. 
 liable if drawer's name is 
 
 forged, 349, 419. 
 not liable to the drawer if not 
 
 provided with funds, 451. 
 when maker estopped from 
 showing it illegal, or usuri- 
 ous, or paid, 63, 387, 1403. 
 of drawer and endorser after accep- 
 tance, and of endorser of note, 
 430 to 454. 
 are much alike, 430. 
 acceptance, mpra protest, 446. 
 drawer and endorser, if pro- 
 perly charged, individually 
 liable, 448, 449. 
 mayJie sued in one or in sepa- 
 rate actions, 450. 
 may sue paities liable before 
 them, 449, 451. 
 
INDEX. 
 
 981 
 
 BILLS OF EXCHANGE— Cbnfo"nM«(i. 
 
 costs and executions in such 
 
 cases, 448. 
 obligations of endorser of non- 
 negotiable note, 453. 
 presentation of, for acceptance and pay- 
 ment, 409 to 415, 430, 432, 433, 443, 
 445. 
 bank check is within the rule, 423. 
 ■when to be made, 410,411,413,420, 
 423 to437, 429,433, 447. 
 how time computed on, 437, 438. 
 days of grace upon, when al- 
 lowed and when they end, 
 425 to 427, 429. 
 by whom may be made, 433, 439. 
 where to be 'made, 410, 414, 430, 
 
 439, 430, 432, 441. 
 to whom to be made, 413, 418, 430, 
 
 439, 430, 432. 
 how to be made, 431. 
 when excused, 410, 440, 441, 443. 
 
 what does not excuse, 418, 430. 
 may be waived, and when and 
 
 how, 443, 443, 444. 
 when payable otherwise than in 
 money, when necessary, and 
 when and where to be made, 453, 
 1168, 1170 to 1174. 
 necessary when no time of pay- 
 ment specified, 423. 
 in case of bills payable at sight, or 
 
 after sight, 435. 
 unnecessary for payment of, maker 
 or acceptor, though payable at 
 specified time and place, 416. 
 tender prevents interest and 
 costs, 416. , 
 
 or if maker had funds, 416. 
 notice of non-acceptance and non-pay- 
 ment, when necessary, 409, 411, 413, 
 414, 430, 439, 434, 445. 
 
 is, of limited or conditional ac- 
 ceptance, 414. 
 when to be given, 410, 412, 415, 
 439, 434, 436, 439, 440, 441, 447. 
 not before demand, although 
 afterward made on same day, 
 439. 
 may be waived, 443, 443. 
 when excused, 410, 438, 440 to 
 
 433. 
 what does not excuse, 413, 413,' 
 442. 
 by whom may be given, 423, 439, 
 
 434, 436, 437, 441. 
 to whom must be given, 413, 415, 
 420, 429, 434, 436 to 439. 
 when drawer or endorser is 
 dead, 438. 
 may be oral or in writing, 415, 431, 
 
 434. 
 when may be sent by mail, and to 
 what poslroffice, 415, 421, 436, 438. 
 what it shall contain, 434, 435. 
 form of, 435. 
 
 BILLS OP EXCHANGE— Cfe7i«m«e<?. 
 
 suflaciency and diligence of, a 
 question for the jury where 
 a question as to facts, 435, 438. 
 when endorser's or drawer's resi- 
 dence is unknown, 438, 440. 
 when should be served personally, 
 ■438. 
 
 left at place of residence or 
 business sufficient, 438, 440. 
 in case of contagious disease, 
 441. 
 is good, though party giving had 
 no knowledge of the dishonor, 415. 
 leaving note or bill with endorser 
 to collect of the maker is not suf- 
 ficient, 437. 
 rules relative to presentment and notice 
 apply only to negotiable paper, 445fls. 
 acceptance, supra protest, 446. 
 
 limited when good, 414. 
 when payable at a bank may be left 
 there, 429. 
 must be there ■within buiness hours, 
 
 433. 
 holder deemed acquainted with its 
 usages, 433. 
 payable otherwise than in money, how 
 payable, 452, 1168. 
 
 when demand necessary, and when 
 
 and where, 453, 1168, 1170 to 1174. 
 
 of the discharge of parties to, 454 to 464. 
 
 See SuKETT. 
 
 by discharging prior, not subsequent 
 party, 454, 455, 1112. 
 
 what is not a discharge, 455 to 461, 
 463. 
 
 by whom to be made, 458 to 459. 
 by giving time to prior party, 455, 463. 
 
 mere indulgence is not, 455. 
 
 nor taking security on time, 455. 
 
 as to ■void or usurious agreement, 
 455, and in note, 
 by release of securities, 457. 
 must be on good coBsideration, and 
 
 that can be legally enforced, 455, 
 
 463. 
 receipt of part payment after bill or 
 
 not due, is no discharge, 456. 
 before due good cotasideration for 
 agreement to delay, 456. 
 a confession of judgment, when, and 
 
 when not a discharge, 456. 
 when release or indulgence is at prior 
 
 party's request, no discharge of 
 
 them, 460. 
 when a promise to pay a note, made 
 
 by one who is discharged, needs no 
 
 consideration, 460ffi. 
 if note joint and several, holder's giv- 
 ing time to some will notfiischarge 
 
 the rest, 463. 
 cannot be varied by showing contempo- 
 i-aneous agreement to deduct certain 
 sum from, or otherwise, 396, 430, 
 
98M 
 
 INDEX. 
 
 BILLS OF EXCHANGE— ObraiMuetf. 
 no obligation Of active diligence on the 
 part of the holder of, 461, 463. 
 when delay to collect, discharges sure- 
 ty, 463. ' 
 when the receipt of is, and is not, pay- 
 ment of a precedent debt, 464 to 477. 
 
 See Payment. 
 
 when note of one partner discharges the 
 
 firm, 197, 206. 
 if one partner gives his note for firm 
 
 debt, he only is liable, 197. 
 given by one partner for the firm, pre- 
 sumed to have been in its business, 
 200. 
 when firm liable for, 200, 203. 
 when firm liable for, given by one part- 
 ner as security for another's debt, 304. 
 one partner cannot give nor renew, after 
 
 dissolution, 196. 
 when evidence of money had and re- 
 ceived, or lent, or paid, 319, 332, 
 477. 
 lost note, when of money lent, 332. 
 I. O. U., not promissory note, but evi- 
 dence of money lent, 332. 
 endorser can sue for money 'paid on, and 
 as often as he makes partial payments, 
 833, but not a joint action therefor 
 against separate endorsers, 333. 
 ante-dated, and payable with interest, 
 of itself is no evidence of usury, 59, 
 :523. 
 maybe given in payment of subscrip- 
 tions, 136. 
 signed by agent in his ovim name, may 
 
 be note of principal, 154. 
 that it is genuine is an implied warranty 
 
 when sold, 351. 
 endorser cannot recover from subse- 
 quent endorsers, even on promise to 
 pay, 322. 
 when retention of is not a conversion, 
 
 612. 
 negotiable, evidence in action for con- 
 verting them, 623. 
 when paid, to whom note or bill belongs, 
 634. 
 may be demanded to be given up on 
 tender, 1162. 
 statute of limitations upon, -when pay- 
 able at any time witliin specified 
 time, 1097. 
 wher payable on demand, 1098. 
 payable ' on demand with interest, 
 
 1098. 
 payable on a given day, after de- 
 mand, 1098. 
 one of two joint makersi cannot re- 
 vive debt against the other, 738. 
 miide by infant is voidable, 31, 36, 743, 
 1015. 
 may be ratified after he. becomes of 
 a^c, 1015. 
 
 BILLS OP EXCHANGE-C<m#jraMe<;. 
 what is necessary to the ratification, 
 1015. 
 
 endorsed by an infant, passes title, 1015. 
 
 merged, when, by taking new one, with 
 new endorsers, &c., 1042. 
 
 mutual ones, given on arbitration, valid, 
 1123. 
 
 presumption from giving, of a then set- 
 tlement, and that amount found due 
 from maker, 1393a. 
 
 payable in chattels, a tender is a pay- 
 ment, and tenderer becomes bailee of 
 the chattels, 1158. 
 
 delivery of, may be requked on a ten- 
 der, 1162. 
 
 iSee Ddb. 
 BOARDEB, 
 is not a " guest " at a hotel, 595. 
 
 BOARDING-HOUSE, 
 lien of keeper «f, 594. 
 
 how it may be enforced, 4 (11). 
 
 BONA FIDE HOLDER, 
 of bills of exchange and notes, who is, 
 and his rights, 380, 386, 388 to 391, 
 395, 404. 
 when holder for a precedent debt 
 
 is, 389aj. 
 of note is protected if it was en- 
 dorsed before due, 374 ; if not 
 endorsed, not protected, 374. 
 is not protected if bill or note is 
 
 void by statute, 898. 
 when law presumes one to be, 380, 
 
 398. 
 purchaser of lost bill or note his 
 title to it, 404. 
 
 BONA FIDE MORTGAGEE, 
 who is, to take advantage of omission 
 to refile mortgage, 615. 
 of goods after execution issued, 
 protected, 675. 
 after actual levy, not protect- 
 ed, 675. 
 
 BONA FIDE PURCHASER 
 who is, and his rights, 231, 232, 380, 
 
 386, 888 to 391, 395, 404, 615, 1600. 
 of partn':rship security not protected, if 
 given by one partner for his own 
 debt, 203. 
 of goods from vendee who purchased 
 
 by a conditional sale, title of, 230«. 
 of lost bill or note, his title to it, 404. 
 from fraudulent vendor, has title, 331, 
 581. 
 ' of stolen goods, has no title, 582. 
 &om mortgagor, acquires no title against 
 the mortgagee, 618. 
 may take advantage of omission to 
 refile mortgage, 615. 
 of property after execution issued, pro- 
 tected, 673, 675. 
 
INDEX. 
 
 30NA FIDE PURCHASER— C(W«!ia«e<f. 
 after actual levy, not protected, 
 
 673, 675. 
 
 if he knew of the issuing of the 
 
 execution, not protected, unless 
 
 execution was dormant, 673. 
 
 is not, of mortgaged chattels, who had 
 
 actual knowledge of the mortgage, 
 
 when his leaving goods in his vendor's 
 hands is not fraudulent, 1600. 
 
 BOND, 
 definition and description of, 716. 
 recovering upon, 716. 
 surety, action upon, 716. 
 
 liability of parties to, 716. 
 
 liable if they sign, though not 
 named in it, 716, 838. 
 or statute requires a great- 
 er number, 716. 
 how the seal is to be made thereon, 891. 
 taken colore officii void, 45as. 
 not evidence of money lent, 319. 
 justice's jurisdiction in actions on, 4 (5, 
 
 6), 716, 717, 1517. 
 necessary on commencement of action 
 by attachment, 663, 819, 837 to 839. 
 conditions and requisites of, 819, 
 
 837, 888a. 
 by whom to be executed, 838. 
 must be a technical one and with 
 precise conditions of statute, 838a. 
 extends to final determination of 
 
 cause, 839. 
 damages upon, 839, 1515. 
 by defendant to prevent the removal of 
 attached property, 889 to 893. 
 may be assigned, 892a. 
 penalty in, 893. 
 by a claimant of the property attached, 
 
 889, 890, 893. 
 approval of sureties to bonds given by 
 
 defendant or claimant, 891, 892. 
 on adjournment of cause by defendant, 
 1304, 1224 to 1327. 
 penalty and terms of, 1334. 
 must embrace all statutory conditions, 
 
 1334. 
 how liability of sureties on, fixed, 
 
 1335. 
 justification of sureties on, 1236. 
 to indemnify constable upon levy of 
 property, claimed adversely, 1604. 
 when valid, 1604 
 in actions on last instrument, 400, 402, 
 
 1379 (76). 
 in arbitrations, 1137. 
 award may exceed bond, 1133. 
 " damages on, 962, 1516. 
 of indemnity, set-off not allowed 
 
 against, 1038. 
 installments due on, may be sued for as 
 
 they become due, 1517. 
 interest due may be recovered, though 
 judgment exceeds penalty, 1517. 
 
 BOND — Continued. 
 given by constable, by v 
 1642. 
 
 See Sbctjeitt. 
 
 BOOKS, 
 when exempt fromexecuti 
 on page 894. 
 
 BOOKS OP ACCOUNT, 
 when evidence, 1424 to 14S 
 
 of what they are evi 
 1430, 1436. 
 proof to entitle them to adn 
 weight to be given them, 142 
 
 1437. 
 whose books may be so us 
 to contain original entiies 
 
 1434. 
 
 bytwhom to be made, 14 
 
 when to be made, 1482. 
 
 requisites of entries to 
 evidence, 1427, 1482 to 
 
 in what kind of book an 
 1433 to 1437. 
 
 may be in pencil, 1436. 
 are prima facia evidence o: 
 must be produced in court, 
 
 all be taken together, 14: 
 are evidence for both parti 
 when entries in evidence 
 
 the partners, 1438a. 
 how owner's credit may bf 
 
 1437. 
 
 BORROWER, 
 and his privies, and they i 
 up usury, 52. 
 may sue for securities ass 
 usurious debt, 67. 
 for use, responsibility of, 1 
 
 BOUNDARIES, 
 of land on highway or stre 
 
 BREACH OP TRUST, 
 by various persons, 683. 
 remedies for, 683. 
 public officers answerable 1 
 
 BROKER, 
 when can, and cannot, i 
 
 memorandum under stat 
 
 90, 127a, 139. 
 when he cannot sell on ere 
 has a general lien, 592. 
 
 BUILDINGS, 
 when real and when per 
 503, 1596. 
 
 BURDEN OP PROOF, 
 generally on the party 
 affirmative, 1306, 1842 to 
 when the negative must be 
 changes sides in Certain ca 
 on denial of agent's author 
 
984 
 
 INDEX. 
 
 BURDEN OF PROOF— Continued. 
 
 on note given by partner in name of tlie 
 firm, 300. 
 
 to proye that a delivery was a condi- 
 tional one, 239. 
 
 to prove neglect of , husband, parent or 
 master to support wife, child or ap- 
 prentice, 243. 
 
 to prove lack of consideration of bill or 
 note, 364 
 
 that holder is not bona fide holder of 
 commercial paper, 880, 888, 389, 398. 
 
 that lost note was negotiable, 401. 
 
 to show negligence, 484. 
 
 that a dog was ferocious, &o., 644. 
 
 to show that oflcer's return of no goods 
 is correct, 696. 
 
 in cases of alleged insanity, 33, 1026. 
 
 to show when an alteration was made, 
 868, 1045. 
 
 to show date of assignment of claim to 
 
 be used as a set-off, 1053. 
 , to show payment to avoid statute of 
 limitations, 1103. 
 
 in actions for violation of excise laws, 
 1342. 
 
 to show that bailee exercised due care, 
 1843. 
 
 that one is alive after seven years ab- 
 sence, 1343. 
 
 iij cases of alleged infancy, 1343. 
 
 where fact lies peculiarly in party's 
 knowledge, 1343. 
 
 against officers for breach of duty, 1844. 
 
 that a reputed officer is not such, 
 1873. 
 
 on defendant in execution, to show 
 necessity of property claimed to be 
 exempt from execution, 1586a. 
 
 to show that the property does not 
 exceed the amount of exemption 
 allowed, 1588. 
 
 BUYING AND BELLING OPPICES. 
 agreements for void, 45. 
 
 c 
 
 CANAL OFFICERS, 
 when privilegpd from arrest, 879 (11). 
 
 CARE, 
 
 degrees of, defined, 101. 
 
 what, required of child, sick or aged 
 
 person, a delicate woman, or a lame 
 
 man, 483, 634. 
 
 CARRIAGE, . 
 what is, under law of the road, 490. 
 
 CARRIER, 
 by land or water, responsibility of, 104 
 
 damages against, 1509, 1513, 1530. 
 when delivery to him is not delivery to 
 purchaser, 343. 
 
 CARRIERr-CfeJiforawa. 
 may sue in his own name for goods en- 
 trusted to him, 74305. 
 complaint against for loss of goods, 965. 
 
 See Common Cakriek. 
 
 CART, 
 when part of team, and exempt from 
 execution, 1588. 
 
 CAT, 
 owner of has property in, 563, 638. 
 may sue for an injury to it, 638. 
 
 CATTLE,, 
 injuries committed by, 494, 536 to 543j 
 not to run at large in the highway, 583, 
 
 533, 585, 597, 699 to 706. 
 
 statute relative to is constitutional, 
 533. 
 
 rules relative to in other States, 585. 
 synopsis of the duties concerning, at 
 
 common law and by statute, 535 to 
 
 543. ^ 
 
 against what, one is liable to fence, 536, 
 
 535 to 540. 
 traveling on the highway, 538, 589. 
 the possessor of, liable for damages by, 
 
 540. 
 when owner of vicious, liable for dam- 
 ages by, 494, 495. 
 
 See Animaib; Estrats. 
 
 CARAVAN, 
 owner to give notice' of approach of, 
 495ffl. 
 
 CERTIFICATE, 
 
 of clerk that proof of deed is authentic, 
 - 1873. 
 
 CHAIRS, 
 when, and how many, exempt from ex- 
 ecution, 1586. 
 
 CHALLENGE, 
 justice is not liable to, 1364. 
 of jurors, 1300 to 1305. 
 to the array, when and order of, 1391 
 
 to 1394, 1297. 
 to the polls, when and grounds of, 
 1394 to 1308. 
 
 when and for what a principal 
 challenge is made, 1394, 1395. 
 that one is a mason, 1395. 
 a member of a " know nothing" 
 lodge, 1895. 
 when and for what a challenge is 
 made for favor, 1396. 
 not to be made until a full jury appear, 
 
 1397. 
 either party may make the first one, 
 
 1297. 
 different grounds of, when all may be 
 stated at once, 1397. 
 
CHALLENGE— Cowfe'rawt?. 
 right of continous till justice begins to 
 
 admiaister oath to panel, 1397. 
 principal, grounds of to be stated, 1298. 
 may be demurred or pleaded to, 1298. 
 tried by the justice, 1299. 
 evidence on, 1299. 
 to the array for favor, fbrm of, 1300. 
 cannot be demurred to, issue must 
 
 be taken on it, 1300. 
 may be tried by triers, 1300. 
 finding and judgment on, 1800. 
 to the polls for favor, form of, 1302. 
 
 to be tried by triers, 1302. 
 method of trial by triers, 1301, 1302, 1303. 
 justice must entertain a challenge, 1304. 
 if he improperly overrules it, error 
 is not waivea by going to trial, 
 1304. ' 
 
 peremptory challenges, 1304c8 
 
 CHAMPERTY, 
 defined, 45. 
 
 vrhen champertous agreements void, and 
 when not, 45. 
 
 CHARACTER, 
 bad, of subscribing vritness, when it 
 may be shown, 1376. 
 of owner of boolis of account, 1437. 
 proved to have been bad once, pre- 
 sumed to continue so, 1392. 
 
 CHATTELS, 
 
 See Peksonal Pkopbbtt. 
 
 CHEATING AT PLAY, 
 action for money obtained by, 307 (7), 
 314. 
 
 CHECK, 
 defined, and form of, 348. 
 is a bill of exchange, 348. 
 presentment of is necessary, 433. 
 is within, statute relative to lost bills 
 and notes, 348, 400, 423, 1379. 
 
 CHILDREN, 
 compelled to support poor parents, 304. 
 
 CIVIL ACTIONS, 
 defined, 3. 
 
 CLERGYMEN, 
 actions by, for their hire, 388. 
 disclosures to, when privileged, 1463, 
 1464. 
 
 CLOCK, 
 when exempt from execution, 1588. 
 
 CLOSE, . ' 
 
 defined, 505. 
 
 CLOTH, 
 when and what, exempt from execu- 
 tion, 1586, 1587. 
 
 124 
 
 INDEX. 985 
 
 " CO.," or " COMPANY," ' 
 must represent an actual partner, or 
 partners, 311fls. 
 
 COACHMAN, 
 his implied undertaking, 390. ; 
 
 See Pbofessional Persons, Work abd 
 Labor. 
 
 COLLISION, 
 accidents by, upon the road, 490 to 494 
 of vessels, 493, 635. 
 
 COLORE OFFICII, 
 bonds taken, are yoid, 45o. 
 
 COMMENCEMENT OF ACTIONS, 780, 
 to 861, 
 by voluntary appearance or by process, 
 
 780. 
 when deemed commenced, 781. 
 care to be used in commencing before 
 
 proper justice, 783. 
 what justice has jurisdiction, 3, 783. 
 
 See Justice, &c., and Ad joining Tovnsrs. 
 
 by summons, 783. 
 long summons, 784 to 795. 
 short summons, 795 to 802. 
 
 See Summons. 
 by wawant, 797 to 815. 
 
 See- Warrant. 
 by attachment, 815 to 849. 
 
 See Attachment, Process. 
 
 COMMISSION, • 
 
 to examine a witness, 1248 to 1263. 
 
 statutory provisions concerning, 1348, 
 1256. 
 
 when necessary, 1349. 
 
 it may be issued on stipulation or con- 
 sent, 1249. 
 
 when to be issued, 1248. 
 
 on application of either party, 1214, 
 1248. 
 
 notice of application for, necessary, 
 
 1348. 1349. , 
 when to be served, 1248, 1349. 
 proof of service of same to be made, 
 
 1348. 1350. 
 proof to be made on hearing of ap- 
 plication, 1348, 1250. 
 
 if opposite party admits facta to be 
 
 proved, commission will not be issued, 
 
 1350. 
 when granted, and form of, 1351. 
 
 form of endorsement, 1351, 1255. 
 
 on what paper the endorsement may 
 be made, 1351. 
 witnesses must be named in commis- 
 sion, 1351. 
 
 when this rule not followed, 1251. 
 
986 
 
 INDEX. 
 
 COMMISSION— Continued. 
 settlement of interrogatories, 1353, 1354. 
 their form, 1358. 
 
 wliat objections maybe made to tliem 
 or to tlie evidence, and wlien, 1353, 
 1363. 
 eflfect of failure to answer any inter- 
 rogatory, 1353. 
 to be annexed to commission, 1355. 
 issuing of the, 1355, 1356. 
 
 copy of statute to be annexed, 1356. 
 execution and return of, 1356, 1357, 
 
 1359, 1361a. 
 subpoena to witness, 1358. 
 oath to be administered to him, and 
 
 form of, 1359. » 
 how he is to answer the Interroga- 
 tions, 1359. 
 ibrm and requisites of deposition, 1360. 
 exhibits, or copies to be marked and 
 attached, 1361. 
 court will take judicial notice of com- 
 missioner's signature, 18610. 
 evidence taken upon may be read on the 
 trial, in whole or in part, by either 
 party, 1363. 
 
 what objections may then be made, 
 1363. 
 if either party goes to trial without re- 
 turn, of he waives it, 1261. 
 either party entitled to an adjournment 
 of ninety days for return of, 1314, 
 1348. 
 costs of, 1561. 
 
 COMMITTEE, 
 of idiot or lunatic, &c., makes contracts 
 and brings ^its for him, &c., 33, 743. 
 
 See Idiots, Lunatics, &c., &c. 
 
 of a club, party, society or meeting, 
 when liable for purchases, 345, 396. 
 
 COMMON CARRIER, 
 defined, 105 (7). 
 of goods, responsibility of, 105 (7), 106, 
 
 106a. 
 is excused for losses occasioned by act 
 of God or public enemies, 106 (7), 634. 
 when not so excused, 634. 
 what is "act of God," defined, 105 (7). 
 must transport goods in a reasonable 
 time, 105a. 
 what are, and what afe not, excuses 
 
 f6r not doing so, 106a. 
 may contract to transport and deliver 
 in a certain time, 106a. 
 to limit his legal responsibility, 
 106a. 
 cannot against his own fraud, or 
 
 grops neglect &o., 106a. 
 wiiere freight is carried gratuit- 
 ously, 634. 
 may show that goods were taken from 
 jhim by law, 106*, 035. 
 
 COMMON CARRIER— Continued. 
 
 is estopped from denying owner's 
 title, 106J. 
 if delivered to him by' agent, princi- 
 pal may claim them, 106J. 
 or have been delivered to true 
 ' owner on demand, 635. 
 complaint against for loss of goods, 
 
 965. 
 damages against, 1509, 1513, 1580. 
 of passengers, responsibility of, 105 (8), 
 106, 106a, 684. 
 liability of for baggage, and when it 
 
 ceases, 105 (8). 
 difference in responsibility of carriers 
 by coach and by railroad, 105 (8), 
 ' 634a. 
 very rigid rule in regard to both, 105 
 
 (8), 634a. 
 may contract to transport in a cer- 
 tain time, 106a. 
 
 to exempt from liability for agent's 
 negligence in carrying gratuitous 
 passengers, 37a, 634. 
 not from its own negligence, 37a. 
 is liable for injuries committed by a 
 drunken driver, 634a. 
 and exemplary damages allowed, 
 634a. 
 his lien, 593. 
 
 See Bailee, Caeribk. 
 COMMUNICATIONS, 'PRIVILEGED, 
 See PBivrLEGED Communications, 
 
 COMMON COURTS, 
 abolished, 477. 
 
 COMPANIES, 
 certain, to file statements as to their 
 members, 19Sa 
 
 COMPLAINT, 
 what is a, and what to state, 945 (1, 3, 
 9), 945a, 951. 
 to state facts only, 945 (3), 946. 
 may be oral or written, 945 (3), 957. 
 demurrer to, 945 (6). 
 
 amendment thereon, 945 (7). 
 during the trial, 945 (11), 951. 
 on an account or instrument for the 
 payment of money, 945 (9), 957, 961. 
 variance between and ju-oof, 945 (10). 
 need not correspond with summons as 
 to cause of action, 945a. 
 nor be verified, 945a. 
 misjoinder of causes of action in, 945a. 
 in actions for penalties, or upon stat- 
 utes, 711, 947, 971, 973. 
 public statutes need not, private ones 
 
 must be pleaded, 948. 
 legal fictions in abolished, 949. 
 to be liberally construed, 950. 
 rules in relation to, 951 to 981. 
 must set forth cause of action against 
 defendants, 951. 
 
INDEX. 
 
 987 
 
 CO^TP'LA.mT— Continued. 
 against partners, 952. 
 by partners, 953. 
 
 time and place when material, 953. 
 on contracts, 954 to 960. 
 wlien the performance of conditions 
 should be alleged, 954, 957, 958, 959, 
 961, 963, 1135. , 
 
 where conditions have been altered, 
 961. 
 statement of contract in, 955 to 959, 
 963. 
 of consideration, 955. 
 where contract made by agent or at- 
 torney, 956. 
 in the alternative, 957. 
 executory, 958. 
 excuse for non-performance, 958, 959. 
 
 by defendant's default, 959. 
 allegation of "requested" is equiva- 
 lent to a demand, 958. 
 forms of, 960, &c. 
 
 See Index to Forms. 
 
 on written contract, may be copied into 
 
 complaint or referred to, 961. 
 . special contracts not in writing, 962«. 
 against an attorney for not collecting, 
 
 963a. 
 
 vendee, for not accepting or paying 
 for the goods, 963a, 963. 
 
 vendor, for non-delivery, 963a, 963. 
 on warranty of a horse, 964, 965. 
 against professional persons for breach 
 
 of implied agreement, 965, 969. 
 
 carrier for loss of goods, 965. 
 
 bailee for violation of duty, 966, 967. 
 upon implied contracts, 965, 968, 969. 
 
 general rules relative to, 969. 
 for use and occupation of lands, 343, 
 
 969. 
 against constable for not returning exe- 
 cution, 969. 
 for injuries by negligence, 969. 
 
 by dogs and by other animals, 970. 
 for conversion, 970. 
 fraud in sale of a horse, 973. 
 by assignee of a contract, 973. 
 by executor or administrator, 974, 975. 
 by surviving partner, 975. 
 by or against husband and wife, 970. 
 allegation that goods were "sold" im- 
 plies a delivery, 968. 
 
 that parties had a settlement is a suf- 
 ficient allegation of an accounting, 
 969. 
 on quantum meruit may recover though 
 
 price was fixed by contract, 968. 
 several causes of action may be stated 
 
 in, 980. 
 in Supreme Court, on plea of title, 1197 
 
 to 1201. 
 in trespass or for conversion, sustained 
 
 by proof of injury or conversion of 
 
 less, 1345. 
 
 COMPLAINT— CoateMed 
 damages, how claimed in, 6, 977, 978. 
 
 See Pleading. 
 
 COMPOSITION, 
 between debtor and creditor, when 
 good, 1143. 
 illustrative cases of, 1143. 
 
 See AccoED and Satisfaction, Compko- 
 
 MISB. 
 
 COMPOUNDING OFFENSES, 
 an illegal consideration, 37, 39. 
 
 COMPOUND INTEREST, 
 when reservation is, or is not, usurious, 
 59,1533. •^ 
 
 COMPROMISE, 
 of doubtful claim, a good consideration, 
 
 26. 
 with one joint debtor, or one partner 
 after dissolution, 1114. 
 how to be made, 1114. 
 creditor can collect balance of claim 
 of the others, 1114. 
 they can collect his share of the 
 one released, 1114. 
 proposition for, not evidence against the 
 party, 1404. 
 
 See Composition ; Accokd and Satis- 
 faction. 
 
 COMPULSION, 
 money paid under, may be recovered in 
 action for money had and received, 
 307 (6). 
 
 CONCEALMENT, 
 when a fraud, 76 to 80. 
 must be of a fact, and not of the law, 
 78. 
 of agent, when binding on principal, 
 159. 
 
 See Fraud. 
 
 CONDITION, . 
 
 in a bond, defined, 716. 
 
 when may be inserted in subscriptions, 
 136. 
 
 must apply to all subscribers, 130. 
 violation of rule may be shown by 
 
 parol, 126. 
 may be waived, 125. 
 
 when bill or note received on, becomes 
 absolute payment, 469. 
 
 when performance of, to be alleged in 
 pleading, 114, 954, 957 to 960,961, 
 963, 1135. 
 
 alterations of, should be set out in plead- 
 ing, 961. 
 
 when statute of limitations rans against 
 demands payable on condition prece- 
 dent, 1008. 
 
 none to be imposed on making tender. 
 1163. 
 
988 
 
 lUDKX. 
 
 CONDITION— Coriferewet?. 
 
 ■when delivery of note, bill, or deed, 
 may be rectuired, 1163. 
 
 CONDITIONAL DELIVERY, 
 
 See Delivery, Saib. 
 
 CONDITIONAL SALE, 
 
 See ^ALE. 
 
 CONFESSION OF JUDGMENT, 
 statutory provisions concerning, 719, 
 
 1542. 
 do not apply to cases where there is 
 
 a regular suit, 
 by whom may be made, 309, 1544. 
 whether by one partner for the firm, 
 209, 1544. 
 
 married women, 1544. 
 cannot be before justice related to either 
 
 party, 1543. 
 justice may take at any place in his 
 
 county, 1, 1543. 
 defendant must appear before justice to 
 make, 941, 1543. 
 
 may make in plaintiff's absence, 939, 
 1543. 
 
 plaintiff may then disavow it, 939, 
 1543. 
 affidavit for, when necessary, must be 
 made before the justice, 1546. 
 void if affidavit, when necessary, is 
 not made, 1543. 
 authority to enter cannot be confessed 
 at a caCual meeting in the street, 654, 
 1543. 
 cannot be fbr rnore than $500, 1543. 
 demand, if larger, may be split into 
 smaller, and confession for each, 
 1543. 
 should be for a specific sum, 1545. 
 state whether on contract or for tort, 
 1545. 
 form of entry of, in justice's docket, 
 
 1554a. 
 in justice's court on usurious demand, 
 
 how set aside, 65. 
 void if justice has not jurisdiction of 
 the parties, 654. 
 illustrative cases, 654. 
 judgment to be entered forthwith, 1374, 
 - 1552. 
 
 erroneous if not so entered, 1553. 
 
 CONFESSIONS, 
 
 See Admissions, Evidenoe. 
 
 CONFUSION, 
 of goods, what it is, 580. 
 title by, 580, 585. 
 
 CONGRESS, 
 members of, wh^n privileged from ar- 
 rest, 879. 
 
 CONSANGUINITY, 
 when it disqualifies a justice, 1, 3, 1364, 
 1543. 
 disqualifies him if related to one 
 of several parties, or to a stock- 
 holder, 2. : 
 even by consent, 1364. 
 he cannot take a confession of 
 judgment, 1543. 
 justice should dismiss cause when re- 
 lated by, 1264. 
 cannot nonsuit, 1264. 
 may perform mere ministerial acts, 
 la. 
 how the degrees of, are determined, 1. 
 disqualifies a constable from serving a 
 venire, 1391, 1392. 
 a juror from sitting, 1278, 1295. 
 
 See Abft^tsy, Relationship. 
 
 CONSENT, 
 cannot confer jurisdiction over subject- 
 matter, or amount, 19, 7!38, 1194. 
 nor when justice is prohibited 
 from acting, 19. 
 or is related to either party, 
 1364, 1543. 
 may confer jurisdiction over the per- 
 son, 30. 
 when appearance is, 30. 
 to be signed by guardian of infant par- 
 ty, 939, 933. 
 of parties to adjournment, cures error 
 
 of discretion in granting it, 1205. 
 authorizes justice to give evidence be- 
 fore himself, 1270. 
 that justice may confer with jury, 1334. 
 wUl not be inferred from silence of 
 parties, 1324. 
 
 CONSEQUENTIAL DAMAGES, 
 when they may be recovered, 1519. 
 
 See Damages. 
 
 CONSmERATION, 
 
 sufficient and lawful, necessary in a 
 contract, 35 to 80, 37, 113, 385. 
 not necessary to a gift or assign- 
 ment of a thing in action, 35, 
 586, 743a. 
 what is sufficient, 35 to 30, 113 to 137. 
 
 a slight one is sufficient, 25, 118. 
 distinction between valuable and money 
 considerations, 35. 
 in money consideration, liability 
 limited to its amount, 35. 
 when a moral one is, and is not suffi- 
 cient, 35, 37, 115, 138, 385, 804, 4eOa. 
 ' must be of benefit to promisor or harm 
 • to promisee, 36, 113. 
 when a past is good, 37, 115 123 134 
 
 (§ 37c), 
 contmumg ones, defined, 124. 
 a seal is prima facie evidence of, 38. 
 when may be rebutted, 38. 
 
INDEX. 
 
 989 
 
 CONSIDER ATION— CorafeTiiteA 
 generally one of three enumerated 
 
 kinds, 29. 
 if illegal or immoral, or in contraven- 
 tion of public policy or some statute, 
 the agreement is void, 37 to 53, 393 
 to 396. 
 instances of, 37, 87«, 37c, 39, 43 to 
 
 53, 394. 
 presumed void if contravenes stat- 
 ute, 37. 
 court decides relative thereto, 
 
 37, 50. 
 illegality may be waived, 37. 
 or failure of may be proved 
 as a defense, 38, 388 to 
 396. 
 repeal of statute will not make it 
 
 good, 37. 
 when law will give relief, as in 
 
 usury cases, &c., 376. 
 where consideration illegal in part 
 
 only, 37c. 
 when law presumes immoral one 
 to be legal, 43. 
 settlement of assault and battery, &c„ 
 
 39. 
 request to do an act known or not 
 known to be a trespass, 40, 41. 
 to pay a trespasser for improve- 
 ments, 116. 
 those which have a tendency to pro- 
 mote licentiousness, 43, 43. 
 payment for past seduction good, 
 
 43, 119. 
 for future prostitution, liad, 119. 
 agreements to fight, to print or publish 
 libels, for gaming apparatus, &c., 43. 
 of indemnity against past illegal or im- 
 moral act, 44, 119. 
 champerty and maintenance, 45. 
 bohds colore officii, 45a. 
 agreements in restraint of marriage, or 
 
 of trade, 46, 47, 48, 394. 
 for public officer to neglect his duty, 49. 
 bets and wagers, 50, 393. 
 violation of Sunday law, 50. 
 for election expenses, 51. 
 usurious, 53 to 68, 393. 
 mutual promises, 113, 114, 1143. 
 to pay if one will make oath, or pro- 
 duce certificate, that moneys are due, 
 117. 
 
 certificate may be shown to be fraud- 
 ulent, 117. 
 to receive certain bank notes, 117. 
 to extend payments on paymenj; of part 
 
 due or not yet. due, 118. 
 to discontinue suit on defendant's pro- 
 mise to pay in a few days, 118. 
 changing times of payment, on giving 
 
 additional security, 118, 365, 1039. 
 forbearing payrtient on usurious consid- 
 eration, 118. 
 doing that which the law will compel 
 one to do, 119. 
 
 CONSIDERATION— ConimweS. 
 relationship or affection for an execu- 
 tory agreement, 120. 
 may arise from a third party, 135. 
 on valid subscriptions, 126. 
 
 See StJBSCBrPTioNS. 
 
 when necessary to be expressed in con- 
 tract, under statute of frauds, 137, 
 150, 151. 
 " value received" is sufficient, 127. 
 
 in promises by executors and adminis- 
 trators, 150. 
 
 when promissee must prove considera- 
 tion against them, 150. 
 
 must be paid by purchaser frpm unau- 
 thorized agent, 154. 
 
 when vendee must tender back, on 
 avoiding sale, 80, 333, 347, 354. 
 
 necessary on warranty after sale, 353. 
 on agi-eement of child to pay for 
 father's past support, 304. 
 
 money on consideration that fails, when 
 may be recovered back, 307 (3). 
 
 implied in a bill or note, 364; 380, 388. 
 
 when illegality or failm-e of, may be 
 shown in action on note, and illustra- 
 tive cases, 388 to 398. 
 
 sufficient to take note in payment of a 
 precedent debt, 388, 389a. 
 or as collateral security, by one who 
 makes advances, 388. 
 
 partial insufficiency of, mitigates recov- 
 ery on commercial paper, 393. 
 
 necessaiy on agreement to give time, or 
 release debtors, 455, 463, 1108. 
 
 when not necessary to agreement, after 
 release, to pay debt, 460». 
 
 necessary to subsequent consent to an 
 escape, 693. 
 
 how stated in complaint, 955. 
 
 necessary in agreement to correct mis- 
 takes in an award, 1134. 
 
 CONSIGNEE, 
 when he may bring suit, 743a. 
 
 CONSTABLE,- 
 bonds taken by, colore officii, void, 45a. 
 prohibited from buying or receiving 
 claims for prosecution, 68 to 73. 
 defense in such a case, 69. , 
 liability of as bailee for goods taken un- 
 der process, 104 (11). i 
 implied warranty in sales by them, 351, 
 
 1637. 
 mav.sue for detention or injury to prop- 
 erty levied on, 568, 573, 573. 
 what he must prove in such cases, 568, 
 573, 573. 
 damages in action against general 
 owner, 1515. 
 may sue. sheriff for subsequent levy 
 not made subject to his, 573, 678. 
 may command assistance in serving pro- 
 cess, 673, 886. 
 
990 
 
 INDEX. 
 
 COTHSTASl/E— Continued. 
 _ rules relative to, 673, 886. 
 liability of for money had and received, 
 307 (1, 6). 
 for misconduct, neglect of duty, &c., 
 
 684, 1644 to 1649. 
 for false return^ 695, 696, 867. 
 for an escape, .693, 693,, 693a, 1644 to 
 1649. 
 
 damages in such a case, 15315. 
 fbr goods levied on by attachment, 894. , 
 for unlawful levy, 565, 625, 671. 
 for not returning execution, 969. 
 no defense that he has not made 
 
 collection, 969 (p. 517). 
 damages in such a case, 1515, 1522. 
 for interest for not paying over mon- 
 eys collected, 1532. 
 for levy on goods of a third person 
 mingled with defendants 659. 
 arrest by, on warrant, execution or 
 other process, 685 to 693, 883 to 887, 
 
 1638 to 1638. 
 to notify plaintiff of, on warrant, 874. 
 how to make it, 685, 686. 
 may be done by another, if consta- 
 ble is ijresentor near, 883. 
 right to enter dwelling-house to make 
 or to recapture, 687 to 691, 881, 882. 
 duty in carrying defendant to jail, 
 
 1647. 
 right to recapture after escape, 691, 
 
 883. 
 may command assistance in making, 
 in case of resistance, 673, 886. 
 rules relative to, 673, 886. 
 when to show process on making, 686. 
 should not arrest on execution, if 
 goods can be found, 1631. 
 how long to retain defendant in custody 
 on warrant, 874 to 877. 
 in what manner to confine him, 885. 
 return of service of process on part 
 of joint defendants, 856. 
 service of warrant, 873. 
 service of attachment, 901, 903. 
 service of venire, 1384. 
 evidence against defaulting juror, 
 1284. 
 when can and when cannot, be con- 
 tradicted, 867, 869. 
 is prima facie evidence against third 
 persons, 1384. 
 • should find defendiint and serve sum- 
 mons, or other process, if he can, 861. 
 where to search for him, 861. 
 summons, warrant and attachment to 
 
 be directed to, 784, 797, 815. 
 cannot deputize one to act for him, 869. 
 may serve process in his own favor 
 and charge fees therefor, 809. 
 person may be authorized, by justice, 
 
 to serve jirocess in place of, 870. 
 manner of serving summons in dwell- 
 ing-house, when refused admittance, 
 871. 
 
 CONSTABLE— Continued. 
 must safely keep goods on attachment, 
 
 894. 
 
 if no bond is given may deliver them 
 to receiptor, 895. 
 
 leave copy of attachment and inven- 
 tory with defendant, or at his resi- 
 dence, 897 to 900 
 
 release attached property if no judg- 
 ment obtained, 896. 
 
 attach goods and serve copy, &c., in 
 life of attachment, 900. 
 
 See Attachment. 
 
 when he can, or may not, appear as 
 
 counsel for either party, 917, 919. 
 limitations, when statute of, begins to 
 
 run on claim for neglect to retmn 
 
 execution, 1100. 
 may break into a dwelling-house on 
 
 process for collection of a fine, &c., 
 
 1345. 
 
 not to make a levy, 1609. 
 how to execute a venire, 1383 (98), 1284. 
 disqualifications for serving venire, 1283. 
 
 objections to by either party, how 
 and when made, 1283. 
 to be sworn on retiring with jury, 1315. 
 what conversation he may have with 
 
 jury, 1315, 1332. 
 fees and poundage of 1561, 1503. 
 when he is presumed to be a duly quali- 
 fied officer, 1386. 
 his duty on receifing execution, 1581 
 
 should endorse levy, 1619. 
 
 not bound to execute it if judgment 
 is void, 1637. 
 
 may be directed in regard to it by 
 the plaintiff, 1637. 
 on what he may levy, and his sale, 675, 
 
 1585 to 1.603, 1606, 1615 to 1618, 1621 
 
 to 1628. 
 not to levy or sell after return day, 675, 
 •« 1584, 1615, 1616. 
 
 See Execution, Levy. 
 
 as to excessive levy, 572^1|i85a. 
 
 if he has levied, need not'^gain levy on 
 
 subsequent execution,' 11813. 
 when he may summon S, jury to tiy 
 
 title, 1603, 1604. 
 if makes unavailing search, blameless, 
 
 though there were goods, 1605. 
 cannot avoid liability by transferring 
 
 process, 1640. 
 
 liability of by statute, 1638. 
 
 must be prosecuted in two years, 
 1641. 
 
 by whom bond to be prosecuted, 
 1642. 
 
 for omissions of duty, 1644 to 1649. 
 when security taken by him, on arrest 
 
 or execution, is good, 1648. 
 cannot purchase goods on a sale made 
 
 by him, 1617. 
 
INDEX. 
 
 991 
 
 C0:H8T ABLE— Continued. 
 
 pay an execution and tlien collect it, 
 1613. 
 
 duty of, in case of conflicting execu- 
 tions, 1607. 
 
 action by, for removal of goods before 
 levy, 1608. 
 
 cannot recovery money paid by Mm 
 for a voluntary escape, 694, 1649. 
 
 must malie actual levy, and on valid 
 process to vest title in him so as to sue 
 for the goods, 1615. 
 
 cannot sue for the goods after execu- 
 tion has run out, 1615. 
 
 See Officeb, Execution, Pkocess Lew. 
 
 CONSULS, 
 not privileged from arrest, 8TO. 
 
 CONTEMPT OF COURT, 
 statutory provisions concerning, 1334. 
 record of conviction, 1384, (§ 377.) 
 
 form of, "1336, 1387. 
 warrant to answer for, 1884(§ 376), 1385. 
 not necessary if witness has not left 
 
 court, 1335. 
 defense of the witness, 1334 (§ 376), 
 1386. 
 evidence of, 1838. 
 
 warrant of commitment against wit- 
 ness, 1838. 
 enumeration of, for which justice may 
 punish, 16. 
 
 CONTINUING CONSIDERATIONS, 
 WHAT ARE. 
 
 See CONSIDEBATION. 
 
 CONTRACT, 
 defined, 6, 33, 111. 
 classes of, 33, 81. 
 express and implied, 6, 34, 39. 
 defined, 34. 
 
 express precludes implied, 371. 
 where none is implied, 34. 
 what is, for payment of money only, 6, 
 • 110,111. 
 
 when otherwise payable, becomes 
 payable in money, 6. 
 founded on mutual agreement, 34. 
 may be made by letters or telegrams, 34. 
 sufficient and lawful consideration neces- 
 sary for, 35 to 30, 37, 113, 385. 
 not necessary to gift or assignment of 
 
 thing in action, 35, 586, 743ff. 
 instances of good consideration, 35 to 
 
 30, 113 to 137. 
 when moral consideration is or is not 
 sufficient, 35, 37, 115, 138, 385, 304, 
 46005. 
 if illegal or immoral, contract is void, 
 37 to 53, 388 to 396. 
 instances of, 37, 37as, 37c, 39, 43 to 
 58, 106a. 
 
 Bee CONSIDEBATION. 
 
 CONTRACT— Continued. 
 void for usury, 53 to 67. 
 
 See Usury. 
 
 by whom may be made, 34, 31 to 34 
 151, 153, 156, 157, 373 to 374, 743,1013 
 1030, 1033, 1038 to 1033. 
 agents, 34, 153, 156, 157. 
 
 See Agents. . 
 
 when by infants, 31, 36, 743, 1013, 
 1030. 
 
 See Infant. 
 
 lunatics, drunkards, &c., 30, 1033, 
 1037. 
 
 See Lunatics, &c. 
 
 man-ied women, 373, 373, 1038 to 1083. 
 
 See Mabbied Women. 
 
 requisite of, in sales, by statute of fi-auds, 
 88 to 98. 
 in other contracts, by statute of 
 frauds, 137 to 151. 
 
 See Peauds, Statute of. 
 
 when may be by parol, 151. 
 
 what is a parol, 33. 
 
 by parol to release a debt, not valid, 
 
 1113. 
 not executed by all the parties, when 
 
 and when not binding, 30, 716. 
 must be legal, 37, 37a, 50, 1041. 
 
 presumed illegal if contravene stat- 
 ute, 37, 50. 
 court decides relative thereto, 37 
 illegality of may be waived, 37. 
 illegal in part only, 37(!. 
 connected with prior illegal or immoral 
 
 one, 37c, 44, 119. 
 illegality may always be shown, 88. 
 when law gives relief, 37d. 
 never presumed, 88. 
 how proved, 38. 
 to compound certain offenses, good, 39. 
 of indemnity for commission of tres- 
 pass, 40. 
 for submission of disputes to arise from 
 an agreement, to a person therein 
 named, bad, 37fls. 
 by carrier of goods or passengers limit- 
 ing his liability, 37as, 106a. 
 immoral contracts are void, 37 to 53, 393. 
 instances of, 43 to 45. 
 
 tendency to promote licen 
 
 tiousriess, 43, 48. 
 gambling, 43. 
 
 me of gambling apparatus, -43. 
 sSling indecent books and 
 
 pictures, 43. 
 printing or publishing of li- 
 bels, 43. 
 agreements to fight, 43. 
 indemnity against futm'e im 
 morality, 44. 
 
992 
 
 INDEX. 
 
 CONTUKCr—ConUnusd. 
 
 when not immoral, 43. 
 to indemnify against past immor- 
 ality, good, 37c, 44, 119. 
 against public policy, void, 45. 
 
 instances of, 45 to 48, 294, 894, 395. 
 buying and selling offices, 45. 
 trading with public enemy, 45. 
 prevention of course of public 
 
 justice, 45. 
 champerty and maintenance, 
 45. 
 attorneys may make agreements 
 with clients to receive ipart of re- 
 covery, 45. 
 when bonds to sheriffs and'' other 
 
 officers, bad, 45fli. 
 in restraint of marriage, 46, 394. 
 in restraint of trade, 47, 48, 394. 
 for officer to neglect his duty, 49. 
 to suffer an escape, 49. 
 not to arrest, 49. 
 V protection of holder of commer- 
 cial paper, 388, 395. 
 racing of animals, 50. 
 violation of excise law, 50. 
 on account of wagers, 50. 
 in violation of Sunday law, 50. 
 to promote elections 51. 
 fraudulent, accompanied with damage, 
 76, &c. 
 
 See Pkaud. 
 
 void for duress, 73 to 76. 
 
 See DiTRBSS. 
 of sale. 
 
 See Sale, Title to Goods. 
 
 to manufacture goods is not in statute 
 
 of frauds, 89. 
 of debt. 
 
 See Debt. 
 of bailment. 
 
 See Bailment. 
 
 how interpreted, 30, 109. 
 
 when by parol testimony, 1420 to 
 
 1424. 
 latent ambiguity in, explained, 1422. 
 patent ambiguity in, not explaina- 
 ble, 1422. 
 another writing when a part, 1423. 
 merges all prior negotiations, &c., 109a. 
 failure to perform, a question of fact, 110. 
 on which an action for the recovery of 
 
 money may be brought, 6, 110, 111. 
 mutual promises form good considera- 
 tion for, 114. 
 when plaintiff must own and prove 
 performance, 114, 217, 272, &c., 
 954, 957 to 960, 061, 963, 1135. 
 to pay for improvements already made, 
 
 116, 141. 
 to release claim if oath made or certifl- 
 cate furnished, 117. 
 
 COJ'iT'RA.OT— Continued. 
 
 certificate not conclusive, 117. 
 to receive notes of a certain bank in 
 
 payment, 117. 
 to extend time of payment, 118. 
 to discontinue suit, 118, 216: 
 changing time or mode of payment, 
 
 to take a smaller sum for a larger one, 
 118. 
 if additional security is given, 118. 
 
 to pay part or give new note before due 
 as consideration for forbearance, 118. 
 
 to pay usurious premium for forbear- 
 ance, 118. 
 
 amounting to a parol license. 
 
 See License. 
 
 between two for the benefit of a third, 
 
 125. 
 by subscription. 
 
 See SuBSCKiPTiON. 
 
 by executors and administratofrs. 
 
 See ExBcuTOES and Administeatoes. 
 
 by and between partners. 
 
 See Partnees and Partneeship. 
 
 joint and several may be made, 212, 
 213,752. , 
 
 where one may make, two or more 
 
 may together, 212. 
 actions on, several ifecoveries, but one 
 satisfaction excepftof torts, 213. 
 by public officers, 220. 
 actions upon, in justices' courts classi- 
 fied, 214. 
 
 See Actions. 
 
 special agreements defined, 215. 
 may be enforced by either party, 215. 
 plaintiff must perform before he can 
 
 recover, 114, 217, 249, 272, &c. 
 to disconue a suit, and does not, liable, 
 
 118, 216. 
 how and when varied by the parties. 
 
 218, 219. 
 when payable, 219. 
 for goods sold. 
 
 See Goods Sold and Dbliveebd, Sales. 
 
 for necessaries for wife, children, adopted 
 
 children and servants, 243. 
 
 when for a bastard child, 244, 303. 
 vendor must send all and no more than 
 
 goods purchased, 249. 
 of warranty, 351 to 370, 835. 
 
 See Waekantt, Hoeses. 
 
 for work, labor and services, 370 to 305. 
 
 See Work, Labor and Services. 
 
 when implied to pay for labor of an- 
 other's child or servant, 302 
 
INDEX. 
 
 993 
 
 CONTRACT— Continued. 
 for the support, &c., of a bastard, 344, 
 
 none implied to pay for necessaries for 
 
 a parent, 304. 
 for money had and received to plaint- 
 
 iflfs use, 305 to 317. 
 
 See Monet Had and Received. 
 
 where contract has been rescinded, 
 307, sub. 4. 
 money paid for defendant, 317 to 331. 
 
 See Money Paid. 
 
 when paid on an illegal transac- 
 tion, 330. 
 
 mere knowledge that it is to be so 
 used not enough, 380. 
 
 where defendant has prevented 
 plaintiff from enjoying that for 
 which he paid his money, 330a. 
 for use and occupation, 334 to 345. 
 
 Bee Use and Occupation, Landlord 
 AND Tenant, Tenant, Lease, Rent. 
 
 in bills of exchange and promissory 
 notes. 
 
 See Bills of Exchange, &c. 
 
 cotemporaneous agreement to deduct 
 from note invalid, or to vary en- 
 dorser's legal obligation, 420. 
 implied, of drawer and endorser before 
 
 and after acceptance, 409, 413, 430. 
 relative to division fences, 530. 
 implied, to pay finder for care of lost 
 
 property, 597. 
 action on, when must be so brought 
 
 against professional person, 683. . 
 how stated or referred to in pleading, 
 
 955 to 963, 1346, 1347. 
 reward offered is in nature of contract, 
 
 961. 
 alteration of, by consent, 1039, 1040, 
 
 1433: 
 
 cannot be altered, or legal efiect of 
 altered by parol, 1039. 
 
 by strangers, do not avoid, 366, 1044. 
 
 by parties, do, 366, 1044, 1045. 
 impossible to perform, 1041. 
 
 when employee can recover for what 
 he has done, 1041. 
 superseded by higher security, when 
 
 1043. 
 not if higher security taken as col- 
 lateral, 1043. 
 payable in chattels, when and where 
 
 payable, and when demand is neces- 
 sary, 452, 1168, 1170 to 1174. 
 in writing, when varied by parol evi- 
 dence, 396, 430, 1430 to 1434. 
 clerical omissions in, when supplied, 
 
 143J. 
 receipt may be explained, 1401, 1433. 
 may show subsequent valid one, 1433. 
 
 , 125 
 
 GOlS.T'&k.Of—OonUwued. . 
 
 or a separate and distinct one if 
 
 not inconsistent, 1420. 
 or the meaning of words and 
 phrases in, l&l. 
 expla,in latent, but not patent 
 ambiguity, 1433. 
 when writing refers to another, 1433. 
 may show another executed at same 
 
 tune, 1433. 
 where there are disagreeing dupli- 
 cates, 1433. 
 where it obviously does not contain 
 
 the whole agreement, 1433. 
 usage cannot control, 1430. 
 payable in gold, damages on, 1514a. 
 in money, damages on, 1506 to 1514. 
 in chattels, damages on, 1514 to 1515. 
 where one party gives notice he will 
 
 not perform, 1515. 
 demand of payment on, when neces- 
 sary before action, 1173, 1173. 
 
 See Sale, Title, &o. 
 
 CONTRIBUTION, 
 
 action for, by one joint debtor against 
 
 another, 330, 334 to 337. 
 none in cases of tarts, 334, 707. 
 
 except for negligence of their ser- 
 vant, 334. 
 in case of an equitable claim, 335. 
 proportion to be paid by each on, 334. 
 none by a discharged bankrupt, 334. 
 
 or where, by agreement, he is indem- 
 infied against loss, 834. 
 where money is paid by a third person 
 
 at request of one of the debtors, 335. 
 or by their agent for them, 335. 
 between co-agents, 335. , 
 where one has submitted to arbitration 
 
 and paid the award, 326. 
 
 CONVERSION, 
 
 See Teovee. 
 
 COOKING UTENSILS, 
 when exempt from execution, 1586. 
 
 COPIES, 
 of public papers and records, when evi- 
 dence, 1350. 
 office, when evidence, 1353. 
 sworn and exemplified, when evidence, 
 1851, 1356. 
 how made and proved, 1364. 
 manner of certifying, 1359. 
 certified by certain public officers, when 
 evidence, 1358. 
 the certificate must comply with 
 the statute, 1355, 1359. 
 of justice's docket, 1353, 1354. 
 of records and judicial proceedings of 
 
 the courts of other states, 1360. 
 of records and proceedings in the courts 
 of a foreign count] y, 1361. 
 
994: 
 
 INDEX. 
 
 CORPORAL PUNISHMENT, 
 right of parent, master or schoolmaster, 
 to inflict, 500, note 7. 
 
 CORPORATION, , 
 
 cannot set up usury, 53. 
 
 recover usury paid, 53. 
 liable for the acts, fraud and torts of its 
 
 agent, 77, 766. 
 may be party to a bill or note, 370. 
 may be sued in a justice's court, 730. 
 
 on whom process to be served, 730. 
 where actions to be brought, 780. 
 ' foreign corporation may voluntarily 
 
 appear, 730. 
 actions by and against, on contract, 746. 
 
 for wrongs, 757. 
 when may contradict return of service 
 • on, 866. 
 may appear by attorney, 918. 
 
 COSTS, 
 
 when judgment is to be given with, 
 1274, 1558. 
 amount of, 1374, 1558. 
 
 judgment for too much, or for improper 
 items, not void, 663, 1559. 
 
 guardian of infant plaintiff is liable for, 
 934, 939, 931. 
 of infant defendant not liable for, 
 933. 
 
 may be imposed on an amendment, 945. 
 awarded by arbitrators, 1133. 
 
 must be paid on payment of money into 
 court, 1150 to 1153. 
 
 when allowed to defendant after pay- 
 ment into court, 1153. 
 
 plaintiff has judgment for, if recovers 
 more than paid into court, 1181. 
 
 against defaulting witness, and how 
 collected, 1389, 1340. 
 ' waiver of will not prevent judgment on 
 non-suit, 1273. 
 
 of venire paid by party calling for it, 
 1289. 
 from part of the costs in the cause, 
 1389. 
 
 when and when not given in judg- 
 ments of discontinuance, 1548. 
 
 of losing party not included in judg- 
 ment, 1559. 
 
 double and treble, when given and how 
 assessed, 1560. 
 
 items of, allowed, 1561. 
 
 prospective, may be allowed, 1564. 
 
 if none included in judgment, no appeal 
 lies, 1565. 
 
 on appeal, 1650 (371). 
 
 COUNSELORS-AT-LAW, 
 iSee Attorneys. 
 
 COUNTER CLAIM, 
 how pleaded in justice's court, 945. 
 
 COUNTERFEIT BILLS, 
 payment in, a nullity, 467. 
 should be promptly returned, 467. 
 
 COUNTY, 
 
 may sue and be sued in justice's courts, 
 
 730, 746. 
 before what justice to sue, 3. 
 when sued, board of supervisors is 
 
 named as defendant, 746. 
 
 COURTS, 
 must have jurisdiction, 648 to 663. 
 jurisdiction of is general and limited, 
 648, 649. 
 when general, 649. 
 
 limited, 64?. 
 of justices, &c., is limited, 640. 
 cannot go beyond it, 650, 651. 
 where limited, must have jurisdiction 
 
 of process, 653. 
 must have jurisdiction of person, 654. 
 if exceed jurisdiction, acts void, 647, 
 
 650 to 656. 
 when liable foractsbeyond jurisdiction, 
 658, 659. 
 not liable if errs in exercise of jm'is- 
 
 diction, 660, 663. 
 jurisdiction depends on a fact to be 
 settled by them, their decision is 
 conclusive, 661, 663, 804. 
 when decide as to legality of considera- 
 tion, 37. ' 
 whether evidence tends to show 
 fraud, 76». 
 officers of, when privileged from arrest, 
 
 879. 
 decide whether a communication was 
 privileged, 1467. 
 whether money paid into court is 
 
 brought in, 1166. 
 whether a witness is or not incompe- 
 tent, 1439, 1455. 
 for what not to be, and to be, opened on 
 Sunday or election day, 853, 853, 1330. 
 
 COVENANT, 
 not to sue, when, and when not, a re- 
 lease, 1111, 1112. 
 
 COVERTURE, 
 
 when a defense, 1038, &c. 
 
 See Makmed Women. 
 
 COW, 
 and food for, when exempt from execu- 
 tion, 1586. 
 
 CRANE AND ITS APPENDAGES, 
 when exempt from execution, 1586. 
 
 CREDITOR, 
 implied license to, to enter on land to 
 
 make demand, &c., 513. 
 mere creditor has no lien on debtor's 
 
 goods in his hands, 601. 
 who is, to take advantage of omission to 
 
 refile chattel mortgage,'615. 
 may assign his debt and any pledge for 
 
 its payment, 618. 
 when entitled to a paid note, 634. 
 
INDEX. 
 
 995 
 
 CRIMINAL CONVERSATION, 
 actions for not in justices' jurisdiction, 5. 
 
 CROPS, 
 
 to be raised, title to, 577. 
 may be sold or mortgaged, 577, 613. 
 
 puicliaser of, under execution, has a 
 right to enter, to take, 1595. 
 
 growing, from seeds sown, when owned 
 by tenant, 503, 533, 1595. 
 may be sold by parol, 139, 503. 
 liable to levy, 1595. 
 
 natural growth of land,' part of real 
 estate, 503, 1595. 
 
 not natural growth are personal prop- 
 erty, 139, 503. 
 
 'cross-examination, 
 
 of a witness, how conducted, 1477 to 
 
 1480, 1481. 
 when leading questions may be asked 
 
 on, 1477, 1503. 
 
 rules of, 1477 to 1480. 
 
 CUSTODY OF THE LAW, 
 property levied upon, when in, 679. 
 
 CUSTOM, 
 
 as basis of general lien, 590. 
 evidence of, 590. 
 
 to charge interest, when makes it al- 
 lowable, 1434. 
 
 See Usage. 
 D 
 
 DAIRY PRODUCTS, 
 to be manufactured, subject of sale or 
 mortgage, 577, 613. 
 
 DAMAGE FEASANT, 
 distress for, 533, 699 to 706. 
 
 See DiSTBESS. 
 
 DAMAGES, 
 definition of, 1505. 
 
 must only claim $300 in justice's court, 
 
 in cases where amount is limited, 977. 
 
 general rules and illustrative cases, 
 
 15056. 
 cannot be proved as matter of opinion, 
 
 1475. 
 general and special, 978. 
 for breach of contract, 151, 1505 to 1528. 
 against auctioneer Who has not disclosed 
 
 his principal, 171. 
 for non-delivery of goods sold in pay- 
 ment of a debt, 323. 
 for goods sold, 333, 324, 1507, 1513, 1514. 
 where vendee has returned them, 
 
 223. 
 or refuses to accept, 1507<J. 
 on resale after refusal to accept, 223. 
 where vendee guilty of fraud, 224. 
 where vendor does not deliver, price 
 paid, 334, 1507. 
 
 DAMAG'EB— Continued. 
 
 price paid in part, 333. 
 price not paid, 1507. 
 when do not answer description, 
 1513. ' 
 
 in actions for breach of warranty, 260, 
 362, 1092, 1507. 
 warranty of title, 1530. 
 fbr labor and services: under a void 
 agreement, 143, 383, 1508, 1519. 
 when an entire contract has not 
 ' been fully performed, 371 to 
 275, 389. 
 when it became illegal or im- 
 possible, 289, 1041. 
 when the blame was with the 
 employer, 377, 280, 281, 389. 
 when a contract, not entire, is part- 
 ly performed, 875. 
 on breach of agreement to labor 
 for plaintiff, 1508. 
 to employ plaintiff, 1508. 
 where original contract has been 
 
 altered, 376, 381, 283. 
 where there is a deviation, 277, 378. 
 where work defectively performed, 
 
 391, 293. 
 where one reftises to accept a chat- 
 tel he ordered made, 379, 381. 
 where performed under a void 
 
 agreement, 143, 282. 
 when better materials are used than 
 , contract required, 283. 
 when employer guilty of fraud, 
 
 284, 285. 
 when vendor refuses to convey 
 lands on which vendee has made 
 improvements, 385. 
 when one illegally possesses him- 
 self of another's labor, 303. 
 performed for one's child or ser- 
 vant, 387. 
 where one agrees to do work on 
 house which bm-ns before com- 
 pletion, 389. 
 for voluntary services, 397, 298. 
 by one who supposed she was 
 defendant's wife, or was a 
 slave or infant, 298. 
 by partner against the firm, 298. 
 rendered by members of the fami- 
 ly, 298. 
 pauper or prisoner, 388. 
 perfoi-med under agreement that 
 third person shall fix amount, 299. 
 or in discretion of employer, 
 
 399. 
 in expectation or understand- 
 ing of a legacy, 299. 
 or agreement to make a pres- 
 ent, deo. 
 for services of a professional person, 286. 
 attorneys and counselors, 386, 393. 
 architect, 290. 
 apothecary, 290. 
 clergyman, 286. 
 
996 
 
 INDEX. 
 
 DAMAGtES— Continued. 
 dentist, 290. 
 coachman, 290. 
 physiciim or surgeon, 286. 
 surveyor, 289. 
 farrier, 390. 
 
 defendandt may show lack of skill, 
 289, 390, 392. 
 degree of skill required, 290, 
 683. 
 may show that attorney agreed to 
 conduct cause gratis, 393. 
 or that he was to receive costs 
 and per centage, 393. 
 on agreements to pay a sum certain in 
 any commodity, 1514, 1515. 
 m gold. 151 ix. 
 recovery cannot exceed the amount 
 
 claimed, 1533. 
 relinquishment of excess beyond com- 
 plaint or justice's jurisdiction, 1274, 
 1533. 
 when circumstances of hardship may 
 ' be shown to enhance or mitigate, 979, 
 1510, 1518. 
 distinction between liquidated and un- 
 liquidated demands, 1056. 
 when a penalty or liquidated damages 
 are provided for, 1511. 
 rule as to liquidated damages, 1511. 
 when double and treble allowed and 
 
 how computed, 1560. 
 against husband for wife's debt before 
 
 marriage, 755, 1033. 
 for services of a pauper or prisoner, in 
 
 poor-house or prison, 288. 
 when apportioned in cases of non- 
 joinder of plaintiff in actions for 
 wrongs, 772. 
 by officers for their fees, 294. 
 
 for property levied on, 1515. 
 for witness fees, 294, 1234. 
 against a defaulting witness, 1341. 
 to what fees an expert entitled, 394, 
 
 1234. 
 for arbitrator's services, 295. 
 on revocation of submission to arbitra- 
 tion, 962, 1516. 
 in case of saving goods and vessels lost 
 
 or abandoned at sea, 398. 
 when there has been a partial failure of 
 
 consideration, 392. 
 for killing or wounding sheep, 641. 
 
 how ascertained in such case, 641. 
 when loss of profits may be recovered 
 
 for, 1519. 
 for conversion, where tort is waived, 
 306. 
 by lienholder, 610. 
 where plaintiff has recovered his 
 
 property, 611, 633, 636. 
 generally, 633, 1538 to 1532. 
 
 when interest may be added, 
 633, 1538a, 1531c8. 
 in actions for use and occupation, 338, 
 340, 341, 1518. 
 
 DAMAGES— Ciui^jweaf. 
 
 where tenant has been evicted, 
 
 3445. 
 where landlord has failed to make 
 
 repairs, 344d, 1518. 
 where lessee is dispossessed, 344, 
 344e. 
 on failure to keep covenant to pay rent, 
 1518. 
 to let premises, 1518. 
 for failure by landlord, or tenant, to 
 
 make repairs, S4Ad, 1518. • 
 by endorsee against prior parties, 449. 
 when consequential may, and may not, 
 
 be recovered, 1519. 
 for breach of contract to employ, 1508. 
 
 to furnish freight, 1508. 
 against carriers, 1509, 1513, 1530. ' 
 
 drovers, for cattle to be taken and 
 sold, 1515. 
 by one who defends suit at request of 
 
 another, 1515. 
 on agreement of indemnity, 1515. 
 against one who gives notice he will 
 
 not perform agreement, 1515. 
 on bond conditioned to pay money, 1517. 
 not limited to penalty if, with in- 
 terest, it is exceeded, 1517. 
 in trespass on lands : 
 implied in all cases, 505, 516, 553. 
 even though the act was a benefit 
 to the land, 516. 
 digging up soil, in pursuit of raven- 
 ous beasts, 563. 
 for flowing lands ; 
 entitled to nominal at least, 553. 
 not for percolation of water, 554. 
 nor for taking care of surface wa- 
 ter, 554. 
 where dam is authorized by statute, 
 
 555. 
 where dam was insecurely built, 560. 
 for a nuisance, 556. 
 even when plaintiff has abated it, 
 557 
 for fraud, 224, 284, 385, 645, 15315. 
 where injury caused by animals of dif- 
 ferent owners, joint action does not 
 
 lie, 642. 
 how damages apportioned in such 
 case, 643, 1534. 
 assignee recovers same as assignor 
 would; amount of consideration 
 for assignment makes no difference, 
 1505fls. 
 against an assumed agent, 1530a. 
 
 telegraph company for delay, 15305. 
 when lost, by confounding tlie measure 
 
 of, 1531. 
 for detaining hired chattel, 1521a. 
 vindicative or exemplary, defined, 1538. 
 when given, 645, 1538. 
 
 in cases of fraud, 645. 
 lunatic not liable for, 764. 
 in actions for escapes, 693, 698a, 694 
 15315. 
 
INDEX. 
 
 997 
 
 DAMAGES— Ob»«mt{«c?. 
 
 for not returning execution, 1515. 
 on attachment bonds, 839, 1515. 
 for destroying fruit trees, 15316. 
 injuries to dogs, cats, or tamed ani- 
 mals, 638. 
 against joint wrong doers, 706,707. 
 eacli liable for whole amount, 707, 
 
 765. 
 separate or joint actions for, 707. 
 only one satisfaction liad, except for 
 costs, 707. 
 in actions for wrongs, 1538 to 1533. 
 
 negligence, 633 to 635, 1531. 
 for enoroacbing on one's wharf, 1531. 
 when interest may be added, 633, 1506, 
 1533 to 1538, 1538a, 1531a. 
 how it is computed and allowed, 
 1533 to 1538. 
 arising since commencement of action, 
 
 1533. 
 in cases of tort, new actions may be 
 
 brought for each new cause, 1533. 
 assessment of, where there are several 
 
 defendants, 1534. 
 set-oflf of, 1056. 
 
 recoupment of, in actions on contract, 
 375, 389. 
 upon actions for a warranty, 1093. 
 
 •'DEAD-HEAD," 
 passenger, contracts that common car- 
 rier may make with, 37fls. 
 
 lAMS, 
 
 injuries occasioned by, 549 to 561, 
 rule in relation to, 550 to 554. 
 rights of joint owners, 553®. 
 no damage for percolation of water, 554. 
 law implies damage for flowing land, 
 553. 
 nominal damages, at least should be 
 
 given, 553. 
 owner liable for, if built insecurely, 
 
 560. 
 when purchaser of land injured by, 
 may recover, 553. 
 use of by prescription, 554, 555, 559. 
 twenty years use furnishes presump- 
 tion of a grant, 559. 
 
 except in case of nuisance, 555. 
 damages may be recoved for injury by, 
 though authorized by statute, 555. 
 
 DAT, 
 
 commences and ends at midnight, 50, 
 853. 
 
 DAYS OF GRACE, 
 definition of, 435. 
 when allowed, 435, 435fl!, 439. 
 not usury to take interest for, in ad- 
 vance, 59. 
 bill or note not due till they have 
 ■ expired, 397, 435, 436. 
 demand of payment not to be made tUl 
 last day of, 436, 439. 
 
 DATS OF GtRA.CE— Continued. 
 how computed, 435, 437, 438. 
 when the last day of, is Sunday or a 
 holiday, ^5. 
 
 DEATH, 
 
 of principal, when it terminates agency, 
 178. 
 
 of one agent, where it terminates 
 authority of others, 173. 
 
 of licensor, when it revokes license, 
 133, 507. 
 
 presumption of, from seven years ab- 
 sence, 1348. 
 
 abatement of actions by, 1008. 
 
 when it destroys affinity, 1. ■ 
 
 hearsay or imerior evidence to show, 
 1397. 
 
 DEBT, 
 
 defined, 108. 
 
 action and pleadings for, 108. 
 
 due firm, when discharged by applica- 
 tion on that of a partner, 308. 
 
 is not destroyed by statute of limita- 
 tions, remedy is suspended, 1103. 
 
 DECEIT. 
 
 See Frattd. 
 
 DECLARATION, 
 of wife, ■frhen not evidence against hus- 
 band, 1037. 
 
 DECREES, 
 statute of limitations upon, 741. 
 
 DEDICATIOK, 
 what constitutes it, 1196a. 
 raises question of title to land, 1196. 
 
 DEED, 
 justice may take acknowledgment of, 
 
 though related to parties, la. 
 surrender or destruction of, does not 
 
 divest title, 147. 
 when not evidence of title in justices' 
 
 courts, 530, 725. 
 erasures and alterations in, by strangers, 
 1044, 1045. 
 by parties, 1044, 1045. 
 accord and satisfaction of contract by 
 
 deed, 1145, 1147. 
 on tender upon, deliveiy thereof may 
 
 be required, 1163. 
 acknowledgment and proof of, and 
 forms, 1363 to 1,374. 
 substantial compliance with statute 
 
 as to, all that is required, 1370. 
 clerk's certificate to, 1371, 1373. 
 signature of one as proper officer to 
 acknowledgment is prima fade 
 evidence, 1373. 
 
 DEER, 
 private property in, 563. 
 
998 
 
 nSTDEX. 
 
 DEFAULT, 
 no judgment by, before a justice, 945 
 
 (8), 1266, 1541. 
 if defendant does not appear plaintiff 
 must prove his case, 945 (8), 1366, 
 1541. 
 
 DEFECT, 
 how waived and when, 30, 831, 855, 
 903a. 
 
 Bee WArvEK. 
 
 must be objected to at first opportunity, 
 
 903a. 
 amendments of, 1661, &c. 
 one contracting must not conceal, 76 to 
 
 80, 364 (3), 268. 
 
 DEFENDANTS, 
 one of several, may plead usury, 64. 
 who may be, in actions upon contracts, 
 185, 190, 748, 746, 747, 749, 753. 
 nonjoinder or misjoinder, effect of, 
 
 753, 754. 
 donnant partners, 185, 747, 790. 
 special partners, 190. 
 executors and administrators cannot 
 be in justice's court, 5, 750. 
 in actions for wrongs, 757, 758, 763 to 
 767a. 
 all or any who are concerned in it, 
 
 765. 
 infants, married women, idiots and 
 lunatics, corporations, 757, 764, 
 766. 
 for nteligence, 766. 
 one of several may be acquitted, 767. 
 when name unknown, sued by fictitious 
 
 one, 780, 951. 
 when they may appear and plead, 909 to 
 
 913. 
 cannot also be plaintiffs in said suit, 
 
 767a. 
 how may appear in justice's court, 917 
 to 943. 
 all, except infants, in person or by 
 
 attorney, 917, 918. 
 infants by guardian, 934, 925, 930, 
 
 933. 
 guardian may employ attorney, 934. 
 must appear or cannot have judgment, 
 unless plaintiff discontinues or is non- 
 suited, 940. 
 appearance by, when is told by justice 
 there is no such suit, 940J. 
 when judgment against can be had 
 
 without appearance, 941. 
 if no appearance by, plaintiff must 
 prove his case, 945 (8), 1366, 1541. 
 pleading by,. 
 
 See Answer, Index to Fokms. 
 
 cannot plead infancy, of codefendant, 
 1031. 
 judgment for, or against, on trial, 1540. 
 
 DEFENSES, ^ 
 that the demand has been purchased 
 
 by a justice or constable, 68 to 73. 
 to die jurisdiction, 998. 
 
 See JtrBisDiCTioiiF. 
 
 in abatement, 999 to 1011. 
 
 See Abatement. 
 
 in bar, 1011 to 1304. 
 
 See Bar, Pleading, ANSvraiB. 
 
 table of, 10, 11. 
 
 to actions upon bills and notes. 
 
 See Bills of Exchange asd Promis- 
 sory Notes. 
 
 of breach of warranty, in actions for 
 price, 263. 
 
 that plaintiff is only an agent, 399. 
 
 defect of parties plaintiff, 753, 759. - 
 
 misjoinder of defendants, 754, 760. 
 
 no guardian appointed for infant plaint- 
 iff, 936. 
 
 how set up in answer, 945. 
 
 against demand in hands of assignee, 
 1064. 
 
 DELAY, 
 to forward goods not a conversion, 625. 
 
 DELIRIUM TREMENS, 
 is insanity, and excuses crimes, 1023, 
 1027. 
 
 See Drunkards, Drunkenness. 
 
 DELIVERY, 
 when purchaser entitled to, 83, 84, 336 
 
 to 235. 
 when purchaser to go for goods, 963. 
 when necessary, under statute of frauds, 
 88 to 99. 
 may be actual or constructive, and 
 
 instances of 93. 
 need not be at time of sale, 93, 98. 
 may be of part for the whole, 93. 
 may be symbolical, and instances 
 of, 94, 95. 
 of ponderous articles, 95. 
 when inferred, and when not, 93,96. 
 when it is conditional, 97. 
 there must also be an acceptance, 93. 
 may be by an agent, 98. 
 when not necessary to pass the title, 576. 
 when it may be inferred, Q6, 586. 
 on sales, to be made in a reasonable 
 
 time, 223. 
 when title passes on, 226. 
 
 if payment is evaded, 327. 
 where terms are waived, 380. 
 may be conditional, and rules relative 
 
 to, 97, 327 to 230. 
 may be to an agent, 337, 1146. 
 necessary to a gift, 586. 
 may be inferred, 586. 
 
INDEX. 
 
 999 
 
 DmAVERY— Continued. 
 
 to donee's agent, or to third per- 
 sons, 586. 
 implied from the use of the word "sold" 
 
 in pleading, 968. 
 of bill, note, or deed, may be required 
 
 on tender, 1163. 
 of goods presumed, from possession of 
 
 order for them, 1393. 
 when obtained by fraud, 231 to 234 
 stoppage in transitu, 234 to 338. 
 
 DEMAND, 
 
 when necessary, before suit for conver- 
 sion, 635, 637, 628, 1633. 
 from partners, 627. 
 co-tenants, 637. 
 
 and refusal only evidence of conversion, 
 636. 
 
 necessary before suit on demand to be 
 paid for otherwise than in fiash, 246, 
 1170, 1171, 1173. 
 when for moneys collected, 1097. 
 
 of acceptance and payment of bills or 
 notes. 
 
 See Bills of Exchange aud Pbomis- 
 soBY Notes. 
 
 where necessary and when to be made 
 
 on non-negotiable paper, 453. 
 necessary on personal mortgage payable 
 
 on demand, 613. 
 
 before selling pledged property, 618. 
 
 by officer for goods levied on, but 
 
 mixed with a third person's, 659. 
 
 once passed on, is bar to another action 
 
 for it, 1080. 
 entire demand must not be split, 774, 
 
 1081. > 
 
 what it is, 775. 
 defense that it should have been liti- 
 gated in u, former action, 1089, 1090. 
 how one may be alleged in pleading, 
 
 958. 
 unliquidated and open-defined, 1056. 
 
 may be set-off, 1056, 1073. 
 when no time is limited for, J)ari;y may 
 
 make it during his life, 1173. 
 necessary where one's goods have been 
 
 sold on execution against another, 
 
 1633. 
 
 DEMURBEE, 
 defined, 1301. 
 when it is put in, 945. 
 .when well taken, party must amend, 
 
 945(7), 1303. 
 forms an issue of law, 1203. 
 judgment on, 1538. 
 
 when to be entered, 1374, 1553. 
 may be made to part of cause of action, 
 
 1538. 
 
 DENTIST, 
 his implied undertaking, 390. 
 
 See Pbofessional Pbkson, Wobk and 
 Labob. 
 
 DEPOSIT, 
 defined, and instances of, 100, 103. 
 no action lies against depositary, till 
 
 after demand, 100. 
 liability of depositary, 103, 104, 105. 
 may make special agreement as to his 
 liability, 103. 
 one cannot be compelled to perform a 
 promise to accept a deposit, 104. 
 
 See Bailment. 
 
 DEPUTY, 
 
 constable cannot act by, 869. 
 
 justice may depute one to serve certain 
 
 process, 870, 904. 
 
 who may be so deputized, 870. 
 
 his powers, 870. 
 
 has no fees, 870. 
 
 must make return, affidavit will not 
 do, 870. 
 sheriff, presumed to be such, 1886. 
 
 may agree to divide fees with sheriff, 
 45a. 
 
 sues in principal's name, 573, 758. 
 special, of sherifi, must show authority. 
 
 686. 
 
 DILATORY PLEAS, 
 old rules concerning, 993 to 996. 
 
 See Answbe, PLBADiwa. 
 
 DISCHARGE, 
 of the parties to a bill or note, by dis- 
 charging or giving time to prior par- 
 ties, 454 to 464, 1113. 
 of a surety, 457, 463. 
 of a joint maker of a bill or note, 463. 
 
 See Release. 
 
 DISCONTINUANCE, 
 iudgment of, when mutual accounts are 
 
 over $400, 15, 1548. 
 breach of agreement for, subjects one 
 
 to damages, 316. 
 what is, of cause, 906, 907, 908. 
 
 absence of justice, 906, 908. 
 
 omission of plaintiff to appear in 
 time, 907. 
 by plaintiff, after payment of money 
 
 into court, 1153. 
 by an adjournment improperly made, 
 
 1337. 
 
 instances of, 1237. 
 judgment of, when to be entered, 1548. 
 
 to be entered forthwith, 1553. 
 
 See Judgment. 
 
 DISCRETION OP JUSTICE, 
 in allowing defendant to appear and 
 
 plead, after default, 909, 910, 911. 
 to allow amendments of pleadings, &c., 
 
 945, 1498, 1664. 1665. 
 
 to allow costs thereon, 945.. 
 to adjourn cause, on return of process, 
 
 on his own motion, 1205. 
 
lOpO 
 
 INDEX. 
 
 DISCRETION OF JVSTWE-Gontirmea. 
 
 consent cures error in its exercise, 
 1205. 
 to receive attorney's oath, on motidn for 
 
 adjournment, 1210. 
 34 to time to which to adioum cause, 
 
 1213. 
 in holding cause open for absent wit- 
 ness, 1213, 1504. 
 to issue attachment against defaulting 
 
 witness, 1236. 
 to allow juror to be withdrawn, 1308. 
 to admit further evidence after case 
 
 closed, or the jury has retired, 1309 
 to 1313, 1333. 
 
 examination of witness over and 
 over again, 1333, 1478, 1503. 
 - additional evidence, of facts proved, 
 _ 1501. 
 to allow interest in trover, and for other 
 
 wrongs, 633, 1538a, 153ics. 
 to exclude witnesses while others are 
 
 being examined, 1469, 1500. 
 as to leading questions, 1471, 1503. 
 as to the conduct of cross examinaition, 
 
 1477 to 1480. 
 as to disparaging (nuestions, 1477. 
 as to number of witnesses on impeach- 
 ment, 1488, 
 as to collateral questions arising on the 
 
 trial, 1498 to 1505; 
 in the opening and closing of the case, 
 
 1306, 1341, 1343, 1499. 
 as to the order of proof, 1500, 1503. 
 whether he will heai; evidence m reply 
 
 to irrelevant testimony given without 
 
 objection, 1500. 
 to require party offering witness to 
 
 state what he expects to prove by 
 
 him, 1501, 1503. 
 to allow party after evidence is in, to go 
 
 back and try on new points, 1503. 
 to discharge a party against whom 
 
 nothing is proved, 1504. 
 
 DISMISSAL, 
 of action, not allowed because costs of 
 a former action are unpaid, 1566. 
 
 DISTRESS, 
 damage-feasant, remedy by, 533, 699 
 
 to 706. 
 rules concerning making, 699, &c. 
 must be made while damage is being 
 done, 699. 
 for that and no prior damage, 
 1186. 
 may be made of inanimate property, 
 
 699. 
 what iifiay be taken, 699, 700, 704a. 
 where distress to be made, 699, 700. 
 for what injuries, 699, 700r 
 tender of amends, 699. 
 by whom may be made, 699. 
 right to rescue, 699. 
 may be waived and action brought for 
 damage, 700. 
 
 DISTRESS— CoraiMiwedJ. 
 statutory provisions concerning, 533, 
 
 701. 
 damage must be appraised before im- 
 pounding, 703, 705. 
 if not, one is trespasser from the be- 
 ginning, 1186. 
 an intention to impound before- 
 hand does not make one so, 535. 
 decision of fence viewers, when conclu- 
 sive, 703. 
 strict regularity in the proceedings ne- 
 cessary, 704, 705. 
 using distress, makes one trespasser 
 from the beginning, 704. 
 neglect to deliver up on tender, or 
 to have damages appraised, does 
 not make one so, 705. 
 iiTegularity renders proceediagg void, 
 705. 
 
 DIVISION FENCES, 
 when adjacent or part of adjacent lands 
 are sold, 537 (4), pg. 265, 
 
 iSee Fences. 
 
 DIVISION LINE, 
 parol agreement to make new one, when 
 good, 139. 
 
 DOCKET, 
 
 statutory provisions concerning justice's, 
 1275, 1276. 
 to enter in, proceedings against de- 
 faulting witness, 1343. 
 against defaulting jurymen, 
 1333. 
 when judgment to be entered in, and 
 
 what is sufficient, 1553. 
 evidence before same of other justice, 
 1376 (345), 1355a. 
 not evidence of time of delivery of 
 process, nor to Whom, 1354. 
 is of one's being deputized to serve 
 
 process, 1354. 
 proof of, 1376, 1355a. 
 when cannot be contradicted, 1549. 
 transcripts from, 1276, 1354, 1355. 
 
 proof of, 1276, 1353 to 1356. 
 what may be entered in, in general, 
 
 1275, 1354. 
 certain provisions relative to, directory, 
 
 1243, 1275, 1332. 
 forms of entry in, 1554, 1554a. 
 
 DOGS, 
 right of ownership in, 563, 638. 
 right to keep and to use, 496, 516, 638. 
 when owner responsible for injuries by, 
 494 to 497, 641, 643. 
 when and when not for his invol- 
 untary trespasses, 516, 541. 
 right to damages for injuries to, 638, 643. , 
 when one may be killed, 688 to 645. 
 not if he is merely trespassing, 643. 
 owner may be compelled to kill, 
 639, 640. 
 
INDEX. 
 
 1001 
 
 DOGS— Con^ued. 
 
 justice may order owner to kill, 640. 
 
 owner liable for sheep killed or wounded 
 
 l>y, without previous notice, 641, 970. 
 
 notice necessary, where only chased 
 
 or worried, 641. 
 ascertainment of damages where 
 
 o-vjuer is unknown, 641. 
 where injury committed hy dogs of 
 several owners, no joint action, 
 643. 
 how damages divided, 643. 
 owner of, who is, 643. 
 evidence, where killing is justified be- 
 cause dog was ferocious, &c., 644. . 
 complaint in action for injury by, 969, 
 970. 
 
 See Animals. 
 
 DOMESTIC ANIMALS, 
 
 property in, 563, 638. 
 
 injuries to, 633, 638 to 644. 
 
 injm-ies committed by, 494 to 497, 639 
 to 644. 
 
 owner not liable for, unless he have no- 
 tice that they were Vicious, 641. 
 
 See Antmals, Cattle, Bogs. 
 
 DORMANT EXECUTION, 
 rules relative to, 1606, 1607, 1613. 
 
 DORMANT PARTNERS, 
 who are, 185. 
 joinder of as parties, 185, 747, 790. 
 
 See Pabtnebs ajstd Partnbkshep. 
 
 DOUBLE AND TREBLE, 
 costs, how computed, 1560. 
 damages do not give, 1560. 
 belong to the party and not the officers, 
 1560. 
 
 DOUBTFUL CLAIMS, 
 compromise of, good consideration, 36. 
 
 DOVES, 
 right of property in, 563. 
 
 DRAWEE, 
 of a bill, who is, 345. 
 omission of his name does not vitiate ; 
 
 omission cured by acceptance, 345. 
 when he is deemed to have accepted, 351. 
 
 See Acceptance, Acceptoe, Bills of 
 Exchange and Pkomissort Note's, 
 Drawek. 
 
 DRAWER, 
 
 of a bill, who is, 345. ' 
 obligations of, before acceptance, 409 to 
 . 416. 
 
 after acceptance, 420. 
 must be charged by notice of non-ac- 
 ceptance or non-payment, 415, 430. 
 is prima facie creditor of acceptor, 418. 
 
 126 
 
 DRAWER— OontinvM. 
 action by, against drawee or acceptor, 
 451. 
 
 See Acceptan6b, Accbptok, Bills of 
 Exchange and Promissory Notes, 
 Drawee. 
 
 DRUNKARDS, 
 
 when their agreements are void, 31,33, 
 1033, 1036, 1037. 
 
 when moderate intoxication does not 
 make them so, 1036. 
 
 power of committee of, to make agree- 
 ments and defend suits, 33, 743. 
 
 inquisition as to conclusive evidence of 
 incapacity, 1036. 
 
 when competent, and when not, as wit- 
 nesses, 1440. 
 
 See Deliritoii Tremens, Dbtoskenness. 
 
 DRUNKENNESS, 
 wh«n a defense in actions on contract, 
 31, 33, 1033, 1036, 1037. 
 moderate intoxication is not, 103&. 
 renders one incompetent as a witness 
 1440. 
 
 court may determine from inspec- 
 tion, 1440. 
 its decision is conclusive, 1497. 
 witness may be asked if another 
 was intoxicated, 1475. 
 of servants, who commits an injury, no 
 excuse in action against master, 485, 
 634a. 
 is species of insanity, 1037. 
 
 See DELrEitrat Tremens, Detotk^ds. 
 
 DUE, 
 when promissory notes or bills are, 
 358, 365, 416, 433. 
 
 immediately if no time is mentioned, 
 358, 365, 416, 433. 
 
 or payable with interest, 358. 
 payable on a contingency, 358. 
 not till days of grace have expii'ed, 
 
 397, 436. 
 endorsed or accept^ after maturity, 
 
 447. ' 
 
 payable at any time in a specified 
 
 time, 1097. 
 payable after demand, or with inter- 
 est on demand, 1098. 
 how time of payment computed, 437, 
 
 438. 
 when demands are, generally, 1097. 
 
 See Bills of Exchange and Promis- 
 sory Notes. 
 
 DUE BILLS, 
 when promissory notes, 353. 
 
 DURESS, 
 defined, and divisions of, 72, 78. 
 by imprisonment, 73. 
 
1002 
 
 INDEX. 
 
 BVIiESS— Continued. 
 threats, 73. 
 of person or property, 73, 73. 
 of one's wife, 74. 
 avoids all contracts, 73. 
 
 when made with a stranger, 75. 
 payments under, may be recovered 
 ^ack, 73. 
 right of avoidance personal to contrac- 
 tor and his surety, 74, 
 
 DWELLING-HOUSE, 
 
 privilege of against entry to make ar- 
 rest, 687 to 691, 881, 888. 
 to make levy, 687, 688, 1609. 
 to serve summons, 871. 
 after escape, 690, 883. 
 
 officer cannot enter against the owner's 
 will, 687. 
 
 if unlawfully entered, the service of 
 process is void, 688. 
 
 when inner door may be broken, 688, 
 
 members of the family only are privi- 
 leged, 689. 
 
 may be broken into to serve certain war- 
 rants, 1245. 
 
 E. 
 
 EARNEST MONET, 
 what is, 98. 
 
 when and liow it may be paid, 98. 
 when paid binds contract of sale, 88, 98. 
 
 EASEMENT, 
 what and how created, 141. 
 right to a private highway is an, 1194. 
 involves title to land, 1194. 
 
 EFFECTS, 
 want of, meaning of the tenn, 410. 
 in drawee's hands, when excuses 
 notice, 410, 411, 413. 
 
 ELECTION, 
 what judicial proceedings may be had 
 on days of, 853. 
 no process issued, served or return- 
 able on those days, 853, 873. 
 judgment may be rendered on, 1380. 
 what agreements relative to are good, 
 and what not, 51. 
 
 ELECTION OP ACTIONS, 
 
 party may waive a wrong and sue on 
 
 contract, 338, 347, 348, 303, 306, 646, 
 
 777, 779, 1345. 
 
 in cases of fraud, 338, 347, 348, 730. 
 
 when may sue for conversion, 
 
 347. 
 for harboring child or servant, 
 
 803. 
 against attorney, or other profes- 
 sional person, 683. 
 when and why better to sue for the 
 wrong, 646, 683, 720, 779. 
 
 ELECTION OF ACTIOIUB—Oontmued. 
 between one on the contract, or for its 
 consideration, 778. 
 
 See Waivbe ; Tout, Waivbk op. 
 
 ELOPEMENT, 
 of wife, liability of husband after, 1033. 
 
 See Husband, Wipe. 
 
 EMBEZZLED MONEYS, 
 may b,e recovered in action for money 
 had and received, 307(7), 314. 
 
 EMBLEMENTS, 
 defined, and right to, 523 
 
 ENDORSEE, 
 who is, 347. 
 
 may sue endorser for money paid on 
 the note, 332, 449. 
 as often as he make payments, 333. 
 where are several endorsers, 332. 
 
 See Bills op Exchange, &c., Endoesbr. 
 
 ENDORSEMENT, 
 of process, when necessary, 854. 
 what is sufficient, 854, 
 officer's return need not show it 
 was endorsed, 866. 
 on execution against joint debtors part 
 
 only served, 856, 857. 
 on note, when evidence of payment, 
 imder statute of limitations, 1103, 
 1104a. 
 of note, bow made, 361. 
 blank, full or restrictive, 361. 
 conditional, 363. 
 qualified, 363. 
 
 of non-negotiable note or bill,, 
 whether guaranty may be within 
 over it, 367. 
 who may make, 370. 
 an agent, 377. 
 effect of, by infant, 370. 
 
 by married woman, 371 to 373. 
 necessary for transfer of note payable 
 
 to order, 374. 
 may be made by agent, 377. 
 may be made on an allonge, 379. 
 presumptions raised by, 380. 
 
 See Bills op Exchange, &c. 
 
 ENDORSER, 
 defined, 847. 
 
 when he cannot plead usury, 52. 
 action against for money paid,* on the 
 bill or note, 333, 449. 
 amount of recovery, 449. 
 may be brought as often as payments 
 
 are made, 333. 
 joint, against several endorsers will 
 not lie, 333. 
 
 must be on the note itself, 322. 
 prior, cannot sue subsequent, 333. 
 
INDEX. 
 
 1003 
 
 ENDORSER— Oontinued. 
 his liability on bill or note. 
 
 See Bills of Exchange, &c., Endoksee. 
 
 implied agreement of, cannot be 
 varied by contemporaneous paroL 
 one, 420. 
 taay give notice of dishonor to prior 
 
 parties, 436, , 
 ■when statute of limitations begins to 
 
 run against, 1097. 
 release of, releases subsequent parties, 
 454 to 464, Ills. 
 
 ENEMY, 
 
 See Public Enemy. 
 
 ENTIRE DEMAND, 
 defined, 775, 776, 1080, 1081. 
 cannot be split up, and separate actions 
 
 commenced, 774 to 777, 1080, 1081. 
 note and an account do not constitute 
 an, 776. 
 nor separate installments on a note, 
 1081. 
 can sue for several separate wronga, 776. 
 
 ENTRY, 
 
 upon lands under a license, express or 
 implied, 506 to 516. 
 
 with license, where subsequently ren- 
 dered a trespasser ab initio, 514, 515. 
 
 to warrant an action must be wrong- 
 ful, 516. 
 
 permitted on adjoining lands when road 
 is foundrous, 517. 
 
 in pursuit of ravenous animals, 563. 
 
 upon another's fishery, 546, 546a. 
 another's lands fiown by water, 547. 
 a river bank to tow, a trespass, 548. 
 
 ERASURES, 
 upon a written instrument, eflect of, 866, 
 1044 1045. 
 
 See Altbbation. 
 
 ERECTIONS, 
 what, are personal property, 1596. 
 
 See FixTimBS. 
 
 ERROR, 
 
 difference between error and irregulari- 
 ty, 663. 
 renders a judgment voidable, not 
 void, 663. 
 court and others not liable for, if there 
 
 is jurisdiction, 668. 
 ill exercise of discretion cured by con- 
 sent of parties, 1205. 
 denying motion for nonsuit, cured 
 
 if defect supplied, 1373. 
 in venire, cured by going to trial 
 
 without objection, 1288. 
 in improperly overruling challenge, 
 not waivedby going to trial, 1304. 
 
 ERROR— Oontinued. 
 if justice improperly charges the jury, 
 lo07. 
 or receives erroneous evidence, 
 
 1489. 
 cured if the fact afterward legally 
 proved, 1489. 
 ground of reversal of judgment on ap- 
 peal, 1650 (366). 
 
 See Appeal. Waiver. 
 
 ESCAPE, 
 defined, 691, 1647. _ ^ 
 agreement for an, void, 49. 
 action for, whether in justice's jurisdic- 
 tion, doubted, 680, 1644. 
 must be brought within a year, 733. 
 an arrest is necessary to an, 685. 
 defendant still considered in custody, 
 883. 
 voluntary and negligent, defined, 691. 
 when rescue a good defense for, 691. 
 or that judgment, or process, was 
 
 void, 698a. 
 not that they were irregular or erro- 
 neous, 693«. 
 power of officer to rearrest, 690, 691, 
 883. 
 when in a dwelling-house, 690, 883. 
 rearrest may be made 6n Shnday, 
 880. 
 liability of officer for, 691 to 695, 1645, 
 1646. 
 consent subsequently given, when 
 
 a discharge, 693, 1645. 
 verbal assent of attorney not suffi- 
 cient, 693. 
 measure of damages for, 693, 15815. 
 officer subjected to damages for, is with- 
 out relief, 694, 1649. 
 when allegations of escape of husband 
 and wife, supported by proof of hus- 
 band's, 1345. 
 if jjlaintiff consents to, his claim is extin- 
 guished, 1645. 
 
 ESTOPPEL, 
 
 when a demand has once been passed 
 on, 1080 to 1083. 1413. 
 
 judgment of a court of competent juris- 
 diction, 1083, 1413 to 1430. 
 
 to defeat a deed by showing no con- 
 sideration, when it expresses one, 28. 
 
 by the record, 1403. 
 
 ESTOPPEL IN PAIS, 
 
 defined, and general rules relative to 
 and illustrative cases, 1403. 
 strictly construed, 1403. 
 
 when maker of note may not deny its 
 validity, 63, 887, 1402. 
 
 agent cannot deny principal's authority, 
 176(!. 
 
 tenant, when he can, and cannot dis- 
 pute his landlord's title, 335, 839, 
 1395, 1403. 
 
1004 
 
 INBEX. 
 
 ESTOPPEL m TAIS—Conmmd. 
 
 ■when one cannot deny tliat a woman is 
 his wife, 1395. 
 
 of receiptor of goods on execution, 
 1403, 1618. 
 
 of the partnership by one of its mem- 
 bers, 1403. 
 
 ignorance of the law is no defense 
 against, 1403. 
 
 an averment as to the law in a pleading 
 is not an, 1403. 
 
 by admissions for the purpose of the 
 trial, 1403. 
 
 ESTRAYS, 
 
 money paid in caring for, may be re- 
 covered, 330, 597. 
 
 statutoiy provisions concerning,, 597, 
 see also 533. 
 
 EVICTION, 
 defined, 344a. 
 
 illustrative cases, 344a. 
 releases tenant from payment of future 
 
 rent, 344a, 344S, 344e. 
 
 See Landlord and Tenant, Tenant, 
 Rent, Use and Occttpation. 
 
 EVIDENCE, 
 its general nature, 1339. 
 definition of, 1340. 
 should be relevant, 1340, 1341. 
 
 rule of relevancy, 1340, 1341. 
 
 facts cannot be assumed to be true, 
 
 and evidentje received on that basis, 
 
 1340. 
 should only be admitted to prove the 
 
 issue, 1341. 
 general rules of, 1343, &c. 
 
 affirmative has the bm'den of proof, 
 169, 1341 to 1345. 
 
 ;^ee Burden OF Proof. Exceptions and 
 SPBCiAii Cases. 
 
 for selling liquor without license, 
 
 1343. 
 against bailee for goods lost or 
 
 damaged, 1343. 
 to prove infancy, 1343. 
 when burden of proof changes 
 
 sides, 1343. 
 to prove one is alive after seven 
 
 years absence, 1343. 
 when fact is in party's knowledge, 
 
 1343^ 
 in actions against ofiicerr 1344, 
 by one who denies agent's authori- 
 ty, 169. 
 the substance only of the issue must 
 be proved, 1345 to 1349. 
 allegation of payment proved 
 
 by proving tender, 1345. 
 of sale to defendant, by pur- 
 chase on his order, 1345. 
 of sale by proving a conversion, 
 1345. 
 
 EVIDENCE— (7orea"M««t?. 
 
 immaterial allegations in plead- 
 ing need not be proved, 1346. 
 as to allegations of written 
 instruments, 1347, 1348. 
 the best evidence the nature of the 
 case admits must be given, 1349. 
 illustrations of rule, 1349. 
 where there is a subscribing 
 
 witness, see infra. 
 where the paper is lost or 
 
 destroyed, 1378, 1379. 
 where it is in hands of opposite 
 party, 1380 to 1383. 
 notice to be given, and how 
 long beforehand, 1380, 
 1383, 1383a. 
 when excused, 1380. 
 contents of notice, 
 
 1380, 1381. 
 proof of its service, 
 1383. 
 question as to receiving th« in- 
 ferior evidence is for the 
 court, 1383. 
 oath to prove its necessity, 
 
 1383, 1384. 
 facts to show its necessity, 
 1384. 
 produced pursuant to noia.ce, prima, 
 facie evidence, 1385. 
 documentary, 1350 to 1365. 
 
 See Records. 
 
 exemplified, or certified copy of 
 
 public records, 1350. 
 sworn copies of public records and 
 
 papers, 1351, 1356, 1364. 
 copies of rules of com'ts and affl- 
 • davits, 1353, 1364. 
 justices' dockets, 1376, 1354, 1355a. 
 copies ' of justices' dockets, 1353, 
 
 1354. 
 transcripts from justice's dockets, 
 1354, 1355. 
 must comply with the statute, 
 1355. 
 verdict, without judgment, is eTi- 
 
 dence, 1353. 
 justices' minutes of evidence, 1355. 
 copies of papers in town clerk's of- 
 fice, 1357. 
 copy of a copy of a record never 
 
 admissible, 1364. 
 official certificates and transcripts 
 
 of sundry ofiBcets, 1358. 
 manner of authenticating copies of 
 records, 1369. 
 records and judicial proceed- 
 ings, taken in other states, 
 1360, 1361. 
 affidavits and acknowledgments in 
 other states, 1361, 1363. 
 judicial proceedings between the same 
 parties, 1079 to 1090, 1413 to 1430. 
 See Former Stirr. 
 
INDEX. 
 
 1005 
 
 EVIDENCE— Continued. 
 writings, when necessary to produce, 
 ]349, 1363, X365. 
 when admission does not waive 
 
 them, 1368. 
 where there are two originals, but 
 one need be used, 1349. 
 if these disagree, which is fol- 
 lowed, 1433. 
 rule does not extend to memo- 
 randa, 1363. 
 nor to receipts, 1365. 
 when not to notices, 1365. 
 usage cannot control, 1430. 
 when cannot be varied by parol, 
 365, 1039, 1074, 1430 to 1424. 
 illustratiye cases, 1430 to 1434. 
 cannot change time of pay- 
 ment of note, 365, 1039, 1420. 
 cannot show a cotemporane- 
 ous parol agreement, fixing 
 a difiFerent time of payment, 
 1089. 
 nor to reduce its amovmt, 1430. 
 rule does not extend to re- 
 ceipts, 1401, 1423. 
 when not to acknowledgment 
 of receipt of consideration 
 in a deed or note, 1428. 
 may show purpose for which wri- 
 ting was executed, if not incon- 
 sistent, 1430. 
 that property was warranted, 
 thouo;h bill of sale silent,1420. 
 that bill of sale does not con- 
 tain whole agreement, 1430. 
 distinct agreement connected 
 therewith and not inconsist- 
 ent, 1420. 
 illustrative cases, 1430, 
 meaning of obscure or ambig- 
 uous words or terms, 1431. 
 illustrative cases, 1431. 
 explain latent, but not patent 
 
 ambiguity, 1422. 
 another writing executed at 
 same time, 1433. 
 where writing refers to 
 another, or to a parol 
 agreement, 1433. 
 show another uncontradictory 
 one, where it obviously is 
 imperfect, 1433. 
 subsequent valid contract, 
 1040, 1433. 
 rule only extends to parties to the 
 writings, and their privies, 1430. 
 proof of a deed of real estate, how 
 made, 1368 to 1374. 
 forms of, 1369. 
 
 See Index to Poems. 
 
 clerk's certificate to authenticate, 1371, 
 
 1373. ' 
 made by one subscribing himself an 
 
 EVIDENCE— Oojifcued!. 
 
 officer, prima facie proof of his offi- 
 cial character, 1373. 
 when no subscribing witness to writing, 
 party's handwriting may be proved, 
 1366. 
 when IS subscribing witness, he must be 
 called, unless writing is proved or 
 acknowledged, 1349, 1366, 1367. 
 if several, one only need be called, 
 
 1349, 1366. 
 when he must become subscribing 
 
 witness, 1366. 
 if he cannot be obtained proof of 
 
 his signature, 1375, 1378. 
 if suspicious circumstances, further 
 proof necessary, 1376. 
 impeachment of subscribing 
 
 witness, 1376. 
 where he has forgotten or de- 
 nies the circumstances and 
 attestation, 1377. 
 when an admission obviates neces- 
 sity of calling on subscribing wit- 
 ness, 1374. 
 positive, circumstantial and presump- 
 tion, 1390. 
 positive defined, 1390. 
 entitled to more weight than neg- 
 ative, 1340. 
 presumptive, defined, 1390. 
 illustrative cases of, 
 
 See Pbbsumption. 
 that public officers are what they 
 
 are reputed to be, 1386. 
 that official acts are. regular, and 
 illustrations, 1387 to 1390. 
 hearsay, defined, 1396. 
 generally inadmissible, 1396. 
 exceptions to the rule, 1397 to 1413. 
 pedigree, death, marriage, rela- 
 tionship, birth, children, &c., 
 1397. 
 certain declarations distinguishable 
 from, 1398, 1408. 
 statements of deceased surveyors 
 as to monuments, &c., 1411. 
 admissions made by a party or his agent, 
 
 See Admissions, Estoppel. 
 professional books not evidence, 1411o. 
 nor counterfeit detector, 1411(j. 
 as to historical works and newspapers, 
 1411a. 
 admission of improper, or rejecting of 
 proper by the justice, consequences 
 of, 1489 to 1498. 
 is error, though disregarded by jus- 
 tice, or he directs jury to, 1489. 
 error cured if fact afterward estab- " 
 lished by legal evidence, 1489. 
 or excluded evidence afterward 
 given, 1489. 
 if witness not sworn, 1489. 
 where preliminary proof not first 
 given, 1489. 
 
1006 
 
 INDEX. 
 
 EVIDENCE— Co^itonwef?. 
 
 objection should be made, and 
 when, 1489, 1491. 
 when in the discretion of the court, 
 
 See Discretion. 
 
 order of in the discretion of the court, 
 1500, 15r3, 1503. 
 declarations part of the transaction, 
 1408. 
 
 See Ees Gestae. 
 
 of a deceased person against his in- 
 terest, 1398. 
 of a deceased surveyor, 1411. 
 books of account aa, 1434 to 1439. 
 
 See Books of Account. 
 
 seal is presumptive of consideration, 38. 
 of illegalitjr of an agreement, 38. 
 of fraud, direct or circumstantial, 76a. 
 may be by proof of other frauds, 76a. 
 by parol, though contract In writ- 
 ing, 645. 
 of agency, before agents representations, 
 &c., can be given, 159. 
 agent's declaration that he is such, 
 insufficient, 159. 
 of ratification of partner's unauthorized 
 
 acts, 301. 
 of knowledge of limited nature of part- 
 nership business, 305. 
 in actions on special agreements, 316. 
 for use and occupation, 843. 
 by officer, party or purchaser for 
 property levied on or sold on pro- 
 cess, 568, 573 to 575, 658. 
 by defendant in execution against 
 
 the officer, 568, 573. 
 for conversion of negotiable bill or 
 
 note, 633. 
 in action by a witness for his fees, 
 1334. 
 of negligence in passing another on 
 highway, 491. 
 owner's knowledge that his animal 
 was vicious, 494. 
 where sheep have been killed by dogs, 
 641. 
 of the ownership of a dog, 643. 
 of its viciousness, 643. 
 to prove possession of real estate, 530. 
 deed may be, for that purpose, 530. 
 also acts and declarations of party, 
 530. 
 of a gift, 586. 
 
 of a general lien must be strong, 590. 
 of conversion, demand and refusal are, 
 636. 
 may be repelled, 636. 
 of title to land, 733 to 739 
 
 See Title to Laotj. 
 
 by parol of written acknowledgment 
 under statute of limitations, if origi- 
 nal is lost, 735(J. 
 
 EVIDENCE— Cfemfo'nMgA 
 to show sanity or insanity, 1035, 1036. 
 inquisition is conclusive, to show inca- 
 pacity, 1036. 
 declarations of wife, when not, against 
 
 husband, 1037. 
 to show identity of claim in this and in 
 former suit, 1083, 1083. 
 that distinct cause of action was 
 
 not submitted to jury, 1087. 
 that award does or does not agree 
 with submission, 1180. 
 of payment under statute of limita- 
 tions, 1103, 1104, 1104a. 
 in case of tender for involutary trespass 
 
 or injury, 1184. 
 on which to issue attachment against y 
 
 witness, 1336, 1337. 
 of foreign witness on commission, 1348 
 to 1363. 
 
 See Commission. 
 
 constable's return of service of venire 
 
 is, in proceedings against defaulting 
 
 juror, 1384, 1331. 
 
 evidence to excuse juror, 1331. 
 justice's discretion to admit, after cause 
 
 submitted, or jury retired, 1309 to 
 
 1313, 1333, 
 witnesses and jury may look at property 
 
 the identity of which is in dispute, 
 
 1330. 
 against witness who refuses to be sworn, 
 
 1388. 
 photographic view, to show situation 
 
 of premises, 1340. 
 contracts must be proved substantially 
 
 as pleaded, 1847. 
 when explained by other writings 
 made at the time or referred to 
 therein, 1423. 
 conviction is, tiU reversed, in justice's 
 
 favor, 1415. 
 discretion in relation to the receipt of, 
 
 1210, 1809 to 1313, 1333. 
 
 See DiscBBTiON. 
 
 decision of justice or jury on, when 
 conclusive, 1493, 1496, 1497. 
 
 constable's endorsement on an execu- 
 tion prima facie, of the facts stated, 
 1619. 
 
 when entries made by deceased persons 
 are, 1409. 
 
 estoppel in pais, 387, 1403. 
 
 See Estoppel m Pais. 
 how considered on appeal, 1493 to 1496, 
 1654a, 1660J. 
 
 See Appeal. 
 
 when will presume that missing 
 evidence was supplied, 1493. 
 
 if some were given to sustain deci- 
 sion, the judgment will not be 
 reversed, 1493, 1495, 1496. 
 
INDEX. 
 
 1007 
 
 ^YID^l^C'K— Continued. 
 
 if none to sustain it, there -will be 
 a reversal, 1493, 1495, 1496. 
 except wliere tlie plaintiff is 
 entitled to nominal damaffes, 
 1494. 
 proper but not necessaiy that the 
 return show it contains aU the 
 evidence, 1495. 
 court will not reverse on question 
 
 of fact, 1495. 
 will presume that witness was 
 sworn, 1498. 
 Incompetency of witnesses. 
 
 See Witness. 
 
 is admissible to show want of jurisdic- 
 tion in justice's judgment, 1416, 1417. 
 judgments between the same parties in 
 othei courts, 1414. 
 ai-e always evidence of their own 
 existence, 1413. 
 impeachment of witnesses, rules as to, 
 1483 to 1489. 
 
 iSee Impeachment. 
 
 as between third parties, that judgment 
 was fraudulent, 1418. 
 
 judgment of foreign court is conclusive, 
 1419. 
 
 memoranda, when may be used, 1355, 
 1365, 1474. 
 need not be produced if witness can 
 testify without it, 1865. 
 
 opinions of witnesses, when competent 
 andofwhat, 1475, 1476. 
 as to handwriting, 1476. 
 
 may be given of circumstances, to give 
 character to a trespass, 979. 
 
 receipt need not be produced, if pay- 
 ment is proved, 1865. 
 
 of a conviction for an offense, 1415. 
 
 of oflScial character, by general reputa- 
 tion, 1386. 
 
 that one recognized as wife is such, 
 1895. 
 
 of pedigree, relationship, marriage, chil- 
 dren, &c., 1397. 
 
 testimony given by deceased witness, 
 rule as to, 1410. 
 by a party, in another action, 1407. 
 
 method and form of swearing witnesses, 
 1444 to 1447. 
 
 when privileged, 1457 to 1468. 
 iSee Privilbged Communications. 
 
 examination of witnesses. 
 
 See Witness. 
 
 witness may give substance of conversa- 
 tion, 1475. 
 state his object in making an as- 
 signment, 1475. 
 when may state his belief, 1475. 
 that he did not intend to defraud in 
 sale, 1475. 
 
 EVIDENCE— Corafo'»ti«A 
 cross-examination of witnesses, how 
 conducted, what may be asked, 1477 
 to 1480. 
 order of, 1478. 
 
 of an unwilling witness, 1 503. 
 when disparagmg questions may be 
 asked, 1477. 
 when examination not concluded at ad- 
 journment, 1478, 1481. 
 
 if witness leaves by consent of op- 
 posite party, 1481. 
 weight of, 1480. 
 of unimpeached and uncontradicted 
 
 witness cannot be disregarded, 1480. 
 offer of, not of itself, material, should 
 
 show how it will be, 1491. 
 justice's decision, on collateral issues, 
 
 conclusive, and instances, 1497. 
 opening and closing of rule as to, 1306, 
 
 1341. 1499. 
 
 discretionary whether justice will hear 
 further, to fact proved, 1501, 1503. 
 to require party to state what he 
 expects to prove, 1501, 1503. 
 
 to prove presumption of law may be re- 
 jected, 1501. 
 
 of fraud in sales where there was no 
 
 . change of possession, 1598, 1599. 
 
 of search, by constable, of property on 
 which to levy, 1605. 
 
 EXAMINATION, 
 of witnesses, 1468 to 1489. 
 
 See Evidence. Witness. 
 through an interpreter, when, 1468. . 
 when separate from other witnesses, 
 
 1469. 1500. 
 
 m cimf a,nA aross, 1470, 1477, 1478,1503. 
 leading questions, generally not allowed 
 the party calling the witness, 1471. 
 but may be put to an unwilling 
 
 witness, 1471, 1478, 1503. 
 mav be put yipon cross-examina- 
 tion, 1477. 
 witness not compelled to an answer to 
 charge him with crime or penalty, 
 1473. 
 may waive the privilege, 1473. 
 compelled to answer, although it 
 may degrade him, or subject to 
 a civil suit, if the question is 
 material, 1473, 1477. 
 need not answer question when ques- 
 tion assumes a fact not proved, 
 1473». 
 must answer from recollection 
 
 1474. 
 may use a memorandum, 1355 
 
 1865, 1474. 
 when he may state his opinion 
 
 1475, 1476. 
 his opinion from a comparison of 
 handwriting not admissible, 1476 
 cross-examination, when and how con 
 ducted, 1477, 1478,1479. 
 
1008 
 
 INDEX. 
 
 'EXA'MmA.TlON— Continued. 
 
 courts should he liberal in its indul- 
 gence, 1479. 
 dying after direct, and before cross, the 
 
 testimony not expunged, 1481. 
 if witness does not attend to finish, for his 
 or party's fault, evidence expunged, 
 1478, 1481. 
 a party calling a witness cannot im- 
 peach his general character, 1486. 
 but he may contradict the facts tes- 
 tified by him, 1486. 
 a subscribing^ witness who denies 
 his attestation, he may impeach, 
 1486. 
 a witness who has deceiyed him, 
 
 he may impeach, 1485. 
 cannot give evidence of his good 
 character before it has been at- 
 tacked, 1487. 
 
 EXCHANGE, 
 or sale, 83 to 87. 
 
 See Sale. 
 
 reservation of, at usual rate, not usury, 
 59. 
 
 EXCISE LAW, 
 
 sale of ale or beer forbidden by, 1343. 
 
 agreements for sale of liquor contrary 
 to, void, 50. « 
 
 defendant in action for violatjro of, to 
 show license, 1343. 
 
 endorsement on summons in actions for 
 violation of, 854. 
 
 ■executions to collect judgments for vio- 
 lation" of, 1574. 
 
 EXECUTION, 
 statutory regulations concerning its 
 
 form, 1567, 1568. 
 what it must contain, 1567 to 1570, 
 
 1571, 1573. 
 against plaintiffs, 1569. 
 on judgments docketed in the clerk's 
 
 office, 1570. 
 endorsement, to collect interest, 1571. 
 against joint debtor, ope only served 
 
 with process, 856, 857, 1573, 1573. 
 on judgments for, certain penalties, to 
 
 be endorsed, 713, 1574. 
 when to issue, and how long after 
 
 judgment, 1567ffi. 
 affidavit for, when against body, 1568. 
 when dated and returnable, 1569. 
 cannot be exebuted by a party, though 
 
 he is constable, 1569. 
 renewal of, 1575 to 1580. 
 
 statute provisions relating to, 1575. 
 
 return on execution should be re- 
 quired before renewal, 1576. 
 
 may be made after return day, 1576. 
 
 length of time of the renewal, 1575, 
 1577. 
 
 must be signed by justice, 1577. 
 
 EXECUTION— Cojifemi^i. 
 when not time to sell, 1579. 
 form of, 1578, 1579. 
 second execution, 1578, 1580, 1583. 
 a return necessary to authorize, 1580. 
 contentB of, part paid, 1580. 
 action lies for suing out execution on a 
 
 paid judgment, 1581. 
 may be issued by justice within two 
 
 years after his term, 1583. 
 in case of change of parties by death, 
 
 marriage, or insolvency, 1583. 
 on receipt of, constable must serve, 
 
 1584. 
 not to levy or sell after return day, un- 
 less renewed, 675, 1584, 1615. 
 property subject to, and exempt fron 
 levy, 1585 to 1603. 
 in case of a team, defendant need ni 1 
 
 own the whole of if, 1588. 
 definition of goods and chattels, 1585. 
 
 chattels real are real estate, 1585. 
 necessary wearing apparel exempt 
 
 1585, 1586. 
 list of, exempt by New York statutes, 
 and decisions thereon, 1586 to 
 1590. 
 
 statute should be liberally con- 
 strued, 1586fli. 
 exemption a personal privilege which 
 may be waived, 1586a. 
 but not by note or prior agreement, 
 1586ffl. 
 necessity of "necessary " articles must 
 be shown by party claiming them, 
 1586a. 
 when, does not depend on ability of 
 
 debtor, 1588. 
 is question of fact for jury, 1586a. 
 to what it refers in the statute. 
 
 who are " house holders" within the 
 statute, 1586a. 
 
 where debtor owns several articles, 
 some of which are exempt, who 
 shall select, and how, and when, 
 1588. 
 
 whether exempt, property liable for 
 debt for exempt property, 1588. 
 
 definition of "purchase money" and 
 " purchase" in statute, 1588.» 
 
 where judgment is for debt for ex- 
 empt property, and for that not ex- 
 empt, exemption is lost, 1588. 
 
 when defendant has fraudulently dis- 
 posed of all but exempt property, 
 1589. 
 
 exemption extends to property OT^ned 
 by partner in the firm, 1589a» 
 
 interest of special partner not subject 
 to, 189. 
 
 nor goods sold by conditional sale, 
 330a, 1591, 
 
 in transitu, 337. 
 
 the interest of one who has special 
 property in a chattel, 1590. 
 
INDEX. 
 
 1009 
 
 EXECUTION— CoraiTOwedf. 
 
 of a mortgagee after forfeiture, 
 1590. 
 purchaser may question its 
 validity, 1590. 
 of a pledgor, 1593 (20). 
 proceedings on, 1592. 
 gold and silver levied on and re- 
 turned as cash., 1592. 
 bank Jjills, must be sold, 1592. 
 promissory notes and other choses in 
 
 action, 1593. 
 bank and other shares, 1593. 
 corporate franchise, 1593. 
 printing establishment and subscrip- 
 tion list, 1598. 
 goods in custody of the law, 1593. 
 deeds and writings, 1593. 
 manuscripts, 1593. 
 
 money belonging to defendant col- 
 lected on execution in his favor, 
 1593. 
 
 collected on execution against hinf , 
 1593. 
 the interest of a joint tenant or tenant 
 in common, 1594. 
 interest of purchaser of, 1594. 
 the interest of a partner in the goods 
 of the firm, 1594. 
 interest of purchaser of, 1594. 
 if entire property of partners, or joint 
 tenants, or tenants in common is 
 sold, 1594. 
 growing, annual crop, raised by labor, 
 1595. 
 trees and crops, natural produce of 
 
 the land, 1595. 
 right of purchaser to enter to re- 
 move, 1595. 
 ~ grass grown and ready to be cut, 
 1595. 
 fixtures, 1596. 
 
 in hands of fraudulent vendee, as- 
 signee, or of mortgagor, 674, 1597 
 to 1608. 
 where no change of possession, 
 
 1598. 
 
 when the presumption of fraud 
 
 arises, and when not, 1599, 1600. 
 
 when intent presumed good, 1598. 
 
 fraud is question for juiy, 1598, 
 
 1599. 
 when debtor has fraudulently pro- 
 cured the goods with intent to sub- 
 ject them to execution, 1602. 
 when sold to keep them from levy, 
 674. 
 mere knowledge of judgment 
 not enough, 674. 
 levy, what constitutes a, 1610. 
 when is and when is not a satisfac- 
 tion of the judgment, 1578, 1614. 
 creates a lien and what it is, 673 to 
 
 679, 1578. 
 other remedies are suspended, 1578. 
 may make a new levy, 1614. 
 
 127 
 
 ^XECHTIOS— Continued. 
 
 cannot have a new execution, 1578. 
 amount of is discretionary with con- 
 stable, 572, 1585a. 
 if constable finds nothing on which 
 to levy, though there were goods in 
 fact, he is blameless, 1605. 
 inquiry to be made in such cases, 
 
 1605. 
 must be, made and property sold, in 
 life of execution or its renewal, 
 675,15841615,1616. 
 right to enter or break into dwelling- 
 house to make levy, 687, 688, 1245, 
 1609. 
 on making, constable should take the 
 articles into his possession, 1611. 
 or take receipt for them, 575, 1611, 
 1613. 
 
 receipted goods must be demand- 
 ed before return day, 1618. 
 estoppel of receiptor, 1402, 1618. 
 he must endorse the time of, make 
 inventory and advertise sale, 
 1616, 1619, 1630. 
 priority of liens, when more than one 
 
 levy, 678 to 680, 1615. 
 on process, not from court of record, 
 
 when has preference, 678. 
 rights of constables under conflicting 
 levies, 1607. 
 
 when goods are removed before 
 levy, 1608. 
 prior enures to the benefit of junior 
 execution, 1613. 
 
 priority depends on actuallevy,1615. 
 when prior one has became dor- 
 mant, 1613. 
 when sale is on junior, rights of 
 
 parties, 676 to 679. 
 actual, necessary to vest title in 
 
 constable, 1615. 
 when lost by delay to sell, 673, 
 
 1606, 1607. 
 on goods in store, applies to those 
 afterward put in to replenish 
 stock, 1614. 
 when ofiicer justified in return of nulla 
 
 bona,lG05. ' 
 proceedings, where property levied on 
 is claimed, 1603 to 1605. 
 jury of inquiiy as to property, 1603, 
 
 1604. 
 indemnifying officer for levy, 1603, 
 1604. 
 form of bond for, 1604. 
 liability of officer, where goods are re- 
 moved before levy^ 1608. 
 officer cannot pay and then coUect on, 
 330,1612. , 
 nor sue defendant in execution, 330, 
 
 1615. 
 cannot sue for goods without actual 
 levy, 1615. 
 nor after execution has run out, 
 1615. 
 
1010 
 
 OTDEX. 
 
 EXECUTION— Cbn<m««tf. 
 dormant, -when and when not, 673, 1606, 
 1607, 1613. 
 ■when goods sold on dormant exe- 
 cution, junior execution cannot 
 take them, 1606. 
 sale upon, statutory provisions concern- 
 ing, 1616. 
 / notice of, to he giyen, 1606, 1616, 
 1630. 
 must not be after sunset, 1616. 
 must be before return day, 675, 
 
 1584, 1615,. 1616. 
 how conducted, 1617. 
 notice of, 1620. 
 
 title of purchaser, on what it de- 
 pends, 574 
 return of, to be made, 1617. 
 constable not to bid oh, 1617. 
 goods levied on must be present, 
 
 1621. 
 must be only of enough to satisfy 
 
 execution, 1622. 
 in what parcels, 1622. 
 passes only title of defendant in ex- 
 ecution, 1622. 
 if of goods of third person, demand 
 
 necessary before suit, 1622. 
 if on junior execution, passes title, 
 and plaintifif in prior must sue 
 officer, 1623. 
 adjournment of, when proper, 1634 
 to 1636. 
 constable liable if adjournment 
 is for a consideration, 1635. 
 may be till after officer's 
 tei-m expires, 1625. 
 may be made after officer's term 
 
 expires, 1625. 
 may return unsold for want of buy- 
 ers, 1624. 
 when the bargain is fixed upon a, 
 
 1637. , 
 must comply with the statute of 
 fraud, 1637. 
 constable's authority ceases on return, 
 1626. 
 cannot correctdefects or re-sell,1626. 
 may, but need not serve irregular 
 
 process, 1687. 
 canijot avoid liability by transfer- 
 ring process, 1640. 
 damages for not returning execu- 
 tion, 1515. 
 protected by process regular on its 
 
 face, 653. 
 governed by same rules as sheriff, 
 1634. 
 effect if returnable at other than statu- 
 tory time, 663. 
 if for a wrong amount maybe amended, 
 
 665. 
 on judgment against married women, 
 
 1030. 
 statute of limitations in actions for 
 goods taken on, 1097. 
 
 ^XECUT^IOHf— Continued. 
 
 in actions for neglect to return ex- 
 ecution, 1100. 
 to collect fine against defaulting witness, 
 1345. 
 may break into dwelling-house to 
 
 serve it, 1345. 
 levy and sell as on other executions, 
 
 1346. 
 fine against defeulting juror, 1333. 
 arrest of defendant for want of goods, 
 720, 16218, 1631. 
 
 privilege from arrest, upon, 879 1639. 
 plaintiff may direct security to be 
 
 taken on, 1630. 
 right to depends on no property being 
 found, 1631. 
 
 debtor's declaration that there is 
 none, sufficient, 1631. 
 discharge from, 1633. 
 is a satisfaction, till debtor discharged 
 from, 1578, 1632. 
 ' female not liable to, 879 (5), 1632, 
 (158.) 
 , constable entitled to fees upon, 1563. 
 imprisonment of defendant on, 1632. 
 duty of constable in conveying de- 
 fendant to jail, 1647. 
 proceedings to discharge from, 1633 
 
 to 1635. 
 justice has no authority to discharge 
 
 from, 1635. 
 nor constable by order of the justice, 
 
 1635. 
 nor attorney retained to prosecute 
 
 suit, 1635. 
 plaintiff in qui tarn action no author- 
 ity, 1635. 
 taking note for execution, when ap- 
 proved of by the plaintiff, 1648. 
 to be returned, or constable liable for 
 its amount, 1617, 1634, 1636, 1640. 
 return conclusive against him, 1636. 
 in action for want of return, plaintiff 
 
 must show valid judgment, 1636. 
 form of return, 1636. 
 fees of constable on, 1561, 1563. 
 his liability, and that of his sureties 
 by reason of receipt of execution, 
 1638. ■ 
 cannot recover for money paid by him 
 
 for a voluntary escape, 1649. 
 form of constable's security, 1639. 
 
 See Constable. 
 
 EXBCUTOES AND ADMINISTRA- 
 TORS, 
 cannot be sued in justices' courts, 5, 
 730, 750. 
 
 whether actions may be brought in 
 those courts on their bonds, 9. 
 note given by them is presumptive evi- 
 dence of assets, 15. 
 may be rebutted, 150. 
 then' agreements to b6 in writing and 
 on good consideration, 150. 
 
INDEX. 
 
 1011 
 
 EXECUTORS, &c.— Continued. 
 
 when promissee must prove the con- 
 sideration, 150. 
 implied warranty by, on sales, 251. 
 may endorse notes held by deceased, 
 
 377. 
 stand in place of deceased as to liens 
 
 held by him, 609. 
 actions by for wrongs to deceased, 609. 
 not to join those beneficially interested, 
 
 as plaintiffs, 747. 
 all must join in action, 747, 748. 
 not to be joined with survivors of de- 
 ceased, as plaintiffs or defendants, 
 
 748, 749. 
 for what they may sue, 748. 
 complaint by, 974, 975. 
 what demands may be set off against, 
 
 1051 (55), 1073. 
 
 judgments against them thereon, 
 1073, 1551. 
 effect of payment by, to revive debt 
 
 against estate, 1103. 
 appointment of debtor as, not a release, 
 
 1113. 
 
 EXEMPLARY DAMAGES, 
 when given, 645, 1538. 
 
 EXEMPT PROPERTY, 
 what ia, from ex.ecution, 1585 to 1599. 
 
 Bee ExKCTJTioN. Levy. 
 
 may be pledged, 616. 
 
 EXPERTS, , ' 
 
 opinions of, when evidence, 1475, 1476. 
 their fees as witnesses, 394, 1334. 
 
 EXPRESS CONTRACTS, 
 defined, 24. 
 how made, 34. 
 
 See CoNTKACT. 
 
 EXTORTION, 
 money paid under, may be recovered, 
 807 (6). 
 
 FACTOR, 
 who is and his powers, 161. 
 may charge a percentage on sales and 
 
 advances, 63. • 
 must pursue his principal's instruc- 
 tions, 161. 
 when he may deviate ftom them, 
 161. 
 cannot hold, nor sell, principal's goods 
 against instructions, 161. 
 even if he have lien, 161. 
 delegation of power to another, 161. 
 where he has no instructions, 161. 
 his power to pledge his principal's 
 goods, for his own debt, 182, 162ffi, 607. 
 principal's goods not subject to his 
 debts, 163. 
 
 I 
 
 YKOTOfR— Continued. 
 
 the money which he has received 
 for them is, 163, 
 taking notes in his own name, set off 
 against, 164. 
 payments on them, 163, 164. 
 must sell for cash, unless usage or in- 
 structions to the contrary, 165, 166. 
 use ordinary diligence when he 
 sells on credit, 165. 
 payment to, when valid, 167. 
 may pay over proceeds to principal, 
 though he knows they are promised 
 to his creditors, 167. 
 rules as to, not applicable to other 
 agents, 168. 
 how he may sell his principal's 
 
 goods, 168. 
 may sue for price in his own name, 
 
 168. 
 also for injuries to them, or to re- 
 cover possession of them, 168. 
 his lien not prejudiced by set-off 
 
 against principal, 168. 
 his interest in the goods for commis- 
 sions, 168. 
 when personally liable, 170. 
 has a general lien, 592. 
 how it may be waived, 604, 605. 
 
 See Agent. . 
 
 FACT, QUESTION OP, 
 
 See Question of Fact. 
 
 FALSE AFFIRMATION, 
 as to one's solvency, 681, 682. 
 
 See Fbaud. 
 
 FALSE IMPRISONMENT, 
 actions for not in justice's jurisdiction, 5. 
 
 FALSE PRETENSES, 
 title to property obtained by, 581 to 584. 
 
 See Sales, Title to Goods. 
 
 FALSE RETURN, 
 whether justice has jurisdiction of ac- 
 tion for, 680. 
 officer liable for, 684, 695 to 699, 867. 
 burden of proof on officer to show 
 return correct, 696. 
 
 See Action, Officer. 
 
 FAMILY, 
 
 " inhabitant having," who is, 805._ 
 
 when parent, or one standing in his 
 place, liable for its support, 343. 
 
 members o^ cannot recover for their 
 services, 297. 
 are not liable for their support, 397. 
 
 Bible, pictures and library, clothing, and 
 food prepared for, exempt from exe- 
 cution, 1586 and on page 894. 
 
 See Parent and Child, Husband. 
 
1012 
 
 INDEX. 
 
 FAEMEE, 
 has no lien upon horses kept for hire, 
 594 
 has lien for horses brought to be 
 broken or trained, or covered by 
 his horse, 594. 
 
 FAEM PEODUOTS, 
 to be manufactured or raised, title to, 577. 
 when may be mortgaged, 613. 
 
 FAEEIER, 
 his implied undertaMng, 290. 
 
 See Pkofessional Pebson, Wobk and 
 Labob. 
 
 FATHER, 
 
 entitled to the services of his child, 803. 
 when payment for wages to child good, 
 303. 
 
 See Parent and Child. 
 
 FEES, 
 plaintiff entitled to when subpcenaed 
 
 by defendant, 70. 
 of witnesses, 1333, 1234, 1561. 
 witness may bring action for, 394, 
 1284, 1563. ^ . 
 not against justice though he has 
 
 received them, 1568. 
 evidence and amount of recovery, 
 1334. 
 not bound to attend unless paid or se- 
 
 cm-ed, 1383. 
 may waive, them, or attend on pay- 
 ment of expenses, 1333. 
 entitled to if sworn, but not subpoe- 
 naed, 1332. 
 in case of attachment against defaulting 
 
 witness, 1289, 1340. 
 of an expert, 394, 1334. 
 of executing venire and of jury, 'to be 
 paid by party calling for it, 1389. 
 form part of the coats and abide 
 event, 1389. \ 
 
 of officers in justice's courts, 1561, 1563. 
 constable, when entitled to poundage, 
 
 1563. 
 of justice for drawing affldavits, appli- 
 cations and notices, 833. 
 
 FELONY, 
 definition of, 1447. 
 one sentenced for, incompetent witness, 
 
 1447. 
 title to property obtained by, 581, 583. 
 
 See Stolen Goods. 
 
 FEMALES, 
 privileged from arrest, 879 (5), 1633, 
 (158). 
 
 FENCES, 
 
 statutory provisions concerning divi- 
 sion, 537. 
 
 rales relating to, 538 to 538, 584 to 538, 
 530. 
 
 FENCES — Continued. 
 
 are real property, 503, 1596. 
 
 defective, when excuse for cattle, &c., 
 trespassing on one's land, 536, 537 
 (44), 537a, 584, 539. 
 
 rule as to division, where adjacent 
 lands are sold, 527, p. 385. 
 
 what is a legal division fence, 537a. 
 who may avail himself of the statute, 
 
 538. 
 -occupant of lands has same remedies 
 
 under it as owner, 538. 
 when notices under statute may be 
 verbal, 539. 
 
 agreement relative to division, 580. 
 
 rights may be determined by prescrip- 
 tion, 581. 
 twenty years sufficient, 581. 
 
 town ordinances relating to division, 
 533, 533. 
 relating to interior or farm, 584. 
 
 common law and statutory rules relatr, 
 ing to, 535 to 540. 
 
 what animals one is bound to fence 
 against, 526, 536 to 540. 
 
 power of commissioners of highways to 
 remove encroaching, does not abro- 
 gate right to abate them, 557. 
 
 presumed sufficient tUl contrary is 
 proved, 537 (45). 
 
 FENCE VIEWERS, 
 their powers in relation to division 
 fences, 537, 537a. 
 may issue subpcenas and examine 
 witnesses, 537 (48). 
 in distress damage feasomi, 701, 708. 
 where adjacent owners have agreed 
 upon a division of their fence, 530. 
 where dog has killed or wounded 
 sheep, 641. 
 their certificate presumptive evi- 
 dence, 641. 1 
 
 FEROCIOUS ANIMALS, 
 See Animals. 
 
 FICTIONS, 
 in pleading, abolished, 949. 
 
 FICTITIOUS PAYEE, 
 note payable to, is transferable by 
 delivery, 875. 
 
 FIGHT, 
 agreements to, void, 43. 
 
 FINAL JUDGMENT, 
 defined, 1551. 
 
 FINDERS, 
 of property, are depositaries thereof, 102, 
 when may sue for it, 570. 
 generally have no lien, 597. 
 exception in case of estrays, 597. 
 practice in sucli cases, 597. 
 
INDEX. 
 
 1013 
 
 FINDERS— Continued. 
 
 of wrecked property, lien for salvage, 
 
 596. 
 in other cases must deliver to owner 
 
 on demand, 597. 
 action to recover compensation, 597. 
 
 FINE, 
 
 imposed on. defaulting -witness, and 
 proceedings, 1241 to 1248. 
 
 See "Witness. 
 
 on a juror for default, 1331 to 1334. 
 
 See Jtiky. 
 
 FIRE, 
 
 rights of parties when rented hmld- 
 ings are destroyed by, 344. 
 innkeeper's liability in such case, 
 595. 
 
 .FISH, 
 
 in private pond, ownership of, 545. 
 statute for preservation of, 546a5. 
 when exempt from execution, 1586. 
 
 FISHERIES, 
 
 kinds of, defined, 543. 
 
 are real estate, 543. 
 
 rights of, in navigable water, 543. 
 
 in waters not navigable, or tide 
 
 waters, 544. 
 
 in private ponds, 545. 
 unlawftil entries upon, 546. 
 statute for preservation of, 546a. 
 executions on judgments for violation 
 
 of, 1574. 
 
 FIXTURES, 
 
 what are, and their ownership, 503, 
 
 1596. 
 may be sold by parol as personal pro- 
 perty, 140. 
 
 severed by owner, and are then per- 
 sonal, 140. 
 
 FLEECES OP WOOL, 
 
 when exempt from execution, 1586, 
 1587. 
 
 FLOUR, 
 
 when exempt from execution, 1586. 
 
 FLOWING WATERS, 
 
 rules concerning, 549 to 560. 
 
 rights of owners of, examined, 551 to 
 
 555. 
 diversion of, 554. 
 twenty years' user of a dam afibrds 
 
 presumption of grant, 559. 
 action for, when within a justice's 
 
 jui'isdiction, 549. 
 
 wh<?n not, 1195. 
 right to water privilege is real estate, 
 
 503. 
 
 FOOD, 
 
 implied warranty oh sales of, 251. 
 
 for family, and for cow, swine and 
 team, when exempt from execution, 
 1586, and on page 894, 1587. 
 
 FORCE, 
 irresistible, defined, 103. 
 robbery by force is, 103. 
 private stealth presumed not, 103. 
 
 FORECLOSURE OF LIEN, 
 statutory provisions coiicerning, 4 (11). 
 by a pledgee, 618. 
 
 FOREIGN JUDGMENTS, 
 evidence of, 1360, 1361. 
 when conclusive between parties, 1419. 
 
 FOREIGN MINISTERS, 
 when privileged from arrest, 879 (3). 
 
 FORFEITURE, 
 of lease, when not waived, 343a. 
 
 FORGED BILLS OR NOTES, 
 are not payment, 467. 
 should be promptly returned, 467. 
 party receiving them may sue on in- 
 debtedness immediately, 467. 
 
 FORMER ACTION, TRIAL OR JUDG- 
 MENT, 
 of the same cause of action, when a 
 bar, 1079 to 1093, 1549. 
 must be on the merits, 1048, 1084, 
 1549. 
 for price of work, is bar to action for 
 
 damages, 393. 
 plaintiff cannot split up an entire de- 
 mand, and bring separate suits, 774, 
 1080, 1081. 
 if he does the first is a bar to all 
 
 therest, 775, 1081. 
 what is an entire demand under this 
 rule, 775. . 
 former judgment against one of several 
 
 joint contractors, is bar, 1086. 
 is a bar if cause is submitted, though 
 justice or jury do not pass on it, 1080, 
 1549. 
 when matters of defense ihight have 
 been, but were not set up in former 
 suit, they are barred, 393, 1089, 1090, 
 1093. 
 if payments were not all allowed, cannot 
 
 sue for them, 1089. 
 when set-off must, or may not, be plead- 
 ed at first opportunity, 1068, 1069, 
 1071, 1074, 1075. 
 when not a bar, 1059, 1083, 1084, 1085. 
 when the prior judgment was void for 
 want of jurisdiction, 656, 1084, 
 1416. 
 where one party sues for a wrong, 
 and no objection is -made to the 
 misjoinder, 7'i'3. 
 
1014 
 
 INDEX. 
 
 FOKMBE ACTION, &o-OonUmiM. 
 a recovery for a separate wrong, 77fi. 
 on note, not bar to suit on account, 
 
 776. 
 when not on the merits, 1048, 1084. 
 omission to plead set-off, 1059, 1071, 
 
 1074, 1075. 
 
 demand payable in installments, 1081. 
 
 I subsequently accruing, 1533. 
 
 when on nonsuit, demurrer, &c., juror 
 
 withdi-awn, 1084, 1365, 1308, 1549. 
 
 when the question was not passed on, 
 
 1084. 
 judgment against principal only, no 
 
 bar to one against surety, 1086. 
 where a distinct cause was withdrawn 
 on trial, 1087. 
 proof of this may be made, 1087. 
 in case of deposit in bank, checks 
 may be given, and each sued if ne- 
 cessary, 1080. 
 when defendant may sue by warrant, 
 notwithstanding former suit, 1070. 
 evidence in such cases, 1070. 
 cannot contradict justice's docket, and 
 show decision on the merits, when 
 that is for nonsuit, 1549 ; see 1265. 
 evidence may be given to show identity 
 of causes, 1083. 
 
 or that distinct cause was with- 
 drawn, 10871 
 where the prior suit was before the 
 same justice, 1083. 
 form of judgment or verdict makes no 
 
 difference, 1080, 1365, 1535, 1549. 
 when conclusive, 1412, 1414, 1415, 14S0. 
 
 when not, 1413, 1416 to 1419. 
 when only part of the present cause of 
 action was embraced in former suit, 
 1088. 
 only a bar as to parties and privies, 
 
 1083, 1413. 
 when stranger may show judgment was 
 obtained by fraud, 1418. 
 
 POEMS, 
 
 See Index to Fokms (at the end of this 
 Index). 
 
 FORMS OP ACTION, 
 ancient, superseded by the civil action, 3. 
 
 PRAUD, . ^ 
 
 vitiates all contracts, 76, 331, 645. 
 
 examijles of the rule, 78. to 80. 
 
 the basis erf' all dealings is good faith, 
 
 76. 
 no falsehoods should be stated, nor de- 
 fects concealed, 76, 78, 79, 364 (3), 681, 
 683. 
 concealment of a ifact that should 
 be disclosed, 78, 79, 681, 682. 
 of one's insolvency, 78, 681, 
 683. 
 vendor may refuse to deliver goods sold, 
 76, 80. 
 
 VRKVD— Continued. 
 vendee may refuse to accept, or to pay 
 for them, 76, 80. 
 return goods, and recover price 
 
 paid, 76, 363, 267. 
 defend In suit for price, 76, 263. 
 is never presumed, must be proved, 76a. 
 evidence of, 76a. 
 similar frauds, 76a, 
 principal bound by fraud of agent, 77, 
 
 681. 
 by artifice to disguise defects, 79, 353, 
 
 368. 
 the duty of the vendor to protect him- 
 self, 79. 
 none, if vendor knew the statements, 
 &c., to be false, 79. 
 in commending goods and exag- 
 gerating their value, 79. 
 infant may commit, 80, 764, 1022. 
 when one cannot contract against hiij 
 
 own fraud, 106a. 
 when firm liable for partner's, 198. 
 sale procured by, void, 337, 231 to 334. 
 if on credit, action may be brought 
 
 immediately, 80, 340. 
 vendor may wai^e vendee's fraud and 
 sue for the goods, 238, 347, 348, 
 730. 
 fraud avoids, even where there was a 
 waiTanty, 354. 
 where vendor knew thing to be diflferent 
 from that for which he sells it, 355. , 
 in the sale of horses, 364 to 370. 
 by representations which the vendor or 
 agent did not know to be true or 
 false, 78, 364 (3), 681. 
 one liable for work and labor obtained 
 
 by, 384. 
 action for money had and received, 
 
 when procured by, 307 (3), 309. 
 when title does and does not pass in sale 
 procured by, 581 to 584. 
 if vendor sues for price affirms sale, 
 583. 
 in sale, purchase or exchange, actions 
 
 for, cognizable by justice, 730. 
 when vendor reclaims goods, must re- 
 turn what he has received, and restore 
 vendor to his old situation as far as 
 possible, 80, 333, 347, 364. 
 vendor on rescission by him must 
 do the same, 267. 
 is a crime, and exemplary damages are 
 
 given, 645. 
 action for, preferable to one on the 
 
 contract, 646. 
 in recommending persons for credit, or 
 their character, is in justice's juris 
 diction, 680. 
 actions for, 681, 682. 
 when statute of limitations begins to 
 
 run in action for, 1100. 
 when defense to an action, 334. 
 damages for, on the part of the vendee 
 334. 
 
ESTDEX. 
 
 101-5 
 
 FB.AVD—Oontin-iied. 
 
 where employer euiltv of fraud, 
 384. ^ ^ e, . i 
 
 action, lies to recoTer for, 1530J. 
 exemplary when given, 645. 
 /See Sales, Wabrantt. 
 
 FRAUDS, STATUTE OF, 
 in relation to sales, 88 to 99, 131, 159V 
 to 1600, 1637. 
 applies to contracts to be performed 
 at the present or in the future, 
 98. • 
 
 applies to sales on execution, for 
 $50 or more, 1637. 
 contracts to deliver goods yet to be 
 manufactured, 89. 
 where something to be done to 
 get them ready, 89. 
 where worth over $50, but price not 
 
 agreed on, 89a. 
 agreement to sell judgment for over 
 ■ $50,- 89a. 
 
 to turn out note in payment, 89a. 
 to pay for goods akeady pur- 
 chased, 89a. 
 to sell growing, hops, 89a. 
 growing hop roots, 89a. 
 standing trees, 89a. 
 what the note or memorandum must 
 state, 90. 
 
 entire contract, 90. 
 may be made by broker or agent 
 or person authorized, 90. 
 in his own name, 90. 
 must be signed at the end, 90. 
 
 by what parties, 90. 
 auctioneer may sign for both 
 sides, 91. 
 at what time and place he 
 must do it, 91. 
 delivery, acceptance or receipt, what 
 are, 93 to 97. 
 may be constructive, 93. 
 may be inferred, 93. ^ 
 need not be at time of sale, 93, 98. 
 delivery may be symbolical and 
 
 illustrative cases, 94, 95. 
 must be some kind of delivery, 95. 
 when actual delivery inferred and 
 when not, and illustrative cases, 
 96, 97. 
 what is sufficient payment of part of 
 purchase money, 98. 
 payment of .earnest of any amount 
 
 is, 98. 
 must be at time of sale, 98. 
 
 effect of, if made afterward, 98. 
 in relation to certain agreements, 137 to 
 151. 
 
 if part is void, all is, 137. 
 by whom to be signed, 90, 137a. 
 what to contain, 90, 137a. 
 by auctioneer, 90, 137a. 
 by broker, or agent, or other person 
 authorized, 90, 137a, 139. 
 
 FRAUDS, STATUTE OF—Oontinued. 
 when must state consideration, 137, 
 
 137a, 385. ' ' 
 
 what is suflacient, 127a. 
 when telegram is sufficient, 137a. 
 agreements not to be performed with- 
 in a year, 138. 
 if performed on one side and not on 
 
 the other, 138, 143. 
 agreements to answer for the debt, 
 &c., of another, 139 to 138. 
 rules relative to, and illustrative 
 
 oases, 139 to 138. 
 guaranty of note, must comply with 
 
 statute, 385. 
 agreements in consideration of mar- 
 riage, 138. 
 
 cases affected by, 138. 
 ante-nuptial agreements, 138. 
 agreements for the sale of lands, or to 
 lease them' for more than a year, 
 139 to 150. 
 purchase of growing timber, grass 
 
 or fruits, 89a, 139, 503. 
 
 hops or growing crops, 89a, 139. 
 to extend time for performing con- 
 tract for sale of land, 139. 
 to pay for land already sold, 139. ^ 
 to exchange lands, 139. 
 to make a new division line of 
 
 lands, 139. 
 sale by sheriff, 139. 
 
 by referee, 139. 
 when one ]Darty has occupied or 
 
 otherwise received benefit of the 
 
 agreement, 139, 335, 343. 
 sale of a pew in church, 139. 
 leases for a year to commence in 
 
 the future, 139. 
 
 when tenant enters under void 
 lease, 145. 
 sale of fixtures, 140. 
 
 improvements, 141. 
 
 for permanent possession or use 
 of lands, 141. 
 
 by prescription, 141. 
 easements or servitudes, 141. 
 to convey lands in payment of ser- 
 vices, 143. 
 licenses to enter upon lands, for a 
 
 particular purpose, 143, 507, 
 
 1195. 
 
 to insert beams in wall of house, 
 143. 
 to pay owner if he consents to 
 
 highway passing over his lands, 
 1 143. 
 
 surplus moneys on mortgage fore- 
 closure, 143. 
 
 for drawing lease, or deed or con- 
 tracts for lands, 144. 
 conveyances of land not by deed, 
 
 146 to 150. 
 
 effect of, upon verbal lease for 
 more than a year, 145, 146. 
 to sun-ender lease, 146, 147. 
 
1016 
 
 , INDEX. 
 
 FRAUDS, STATUTE 0¥— Continued. 
 
 surrender by operation of law, 
 148, 149. 
 to pay for improvements under void 
 
 lease, 384. i 
 
 surrender of deed will not revest 
 
 title, 147. 
 by parol, varying agreement con- 
 cerning lands, 219. 
 obtained by fraud, and performed 
 
 on one side, 284. 
 , not in writing, but performed on 
 
 one side, 323. 
 by executors and administrators, 
 
 150. 
 
 FREE MASON, 
 when a competent juror, 1295. 
 
 FREEHOLDER, 
 definition of, 805. 
 
 wbat estates do not make one such, 
 805. 
 
 FRUITS, 
 
 See Geowing Fruits. 
 
 'fuel, 
 
 when exempt from execution, 1586, 
 1,587. 
 
 FURNITURE, 
 household, when exempt from execu- 
 tion, 1586, 1588. 
 
 G. 
 
 GAMING, 
 
 contracts for use of apparatus for, void, 
 42. 
 
 what contracts relative to are not void, 
 50. 
 
 sale of goods, when it is, 339. 
 
 when bill or note given in considera- 
 tion of, is void, 893. 
 
 GAS WORKS, 
 when private nuisance, 556. 
 
 GENERAL PARTNERS, 
 who are, 184. 
 
 Bee Partnbbs and Paetnebship. 
 
 GIFT, 
 does not require a consideration, 35, 
 
 586. 
 is perfect on delivery, 35, 586. 
 delivery of, necessary to pass title, 586. 
 may be inferred, and iUusti'ative in- 
 stances, 586. . 
 to donor's agent, or when in his pos- 
 session, enough, 586. 
 to third person for donor, 586 
 what does not amount to, 586. 
 donatio causa mortis defined, and rules 
 relative to, 586. 
 
 GlFT—ConUnved. 
 inter vivos, and rules relative to, 686. 
 what is subject of, 586. 
 by whom, and to whom may be made, 
 
 586, lOSOffl. 
 to one having intimate relations with 
 donor, 586. 
 presumption is against its validity, 
 586. 
 
 GOLD, 
 
 contracts for payment of, damages in, 
 
 1514as. 
 may be levied on, and returned as cash, 
 
 not sold, 1593. 
 
 GOOD FAITH, 
 required in all contracts, and is basis of 
 aU dealings, 76. 
 in one who purchases from an im- 
 authorized agent, 154. 
 
 GOODS SOLD AND DELIVERED, 
 actions for, 331 to 350. 
 when they may be brought, 331, 240 
 
 to 346. 
 requisites of complaint in, 333. 
 in case of purchase obtained by 
 
 fraud, 338, 347, 248. 
 when price is to be paid for in labor, 
 
 246. 
 on executory contracts for, 339, 240. 
 upoit sales upon credit, 339 to 342. 
 for necessaries furnished wife, &c., 
 349. 
 vendor, if not paid for, may retain them 
 as a pledge, 331, 326. 
 may refuse to deliver without pay- 
 ment, 226. 
 waiver of payment or other terms, 
 
 330. 
 when to make delivery in a reason- 
 able time, 223. 
 when excused from, 333. 
 if not made, purchaser entitled 
 
 to damages, 323. 
 and payment concurrent acts, 
 336. 
 damages recoverable by vendor or 
 
 vendee, 233, 334. 
 title, when it passes, 226, 230. 
 conditional delivery, 227 to 330. 
 
 sales, 330a, 15^1. 
 fraudulently purchased, 331 to 234. 
 the vendor may waive the fraud, and 
 bring his action, 238. 
 when vendee entitled to possession, 334. 
 delivery of, 234 to 339. 
 stoppage of, in transitu, 284, 385. 
 when deemed on their passage, 336. 
 delivery of, to the carrier, equal to de- 
 livery to vendee, 337. 
 
 Hee Sales. 
 
INDEX. 
 
 lOlY 
 
 GRAIN, 
 
 growing, is personal property, 139, 
 503. 
 when it goes to tlie heir, 502. 
 
 GRANT, ' 
 
 co^tiauance of a dam twenty years 
 supposes one, 559. 
 
 GRASS, 
 
 See Growing Grass. 
 
 GRATUITOUS, 
 
 promise not binding, 25, 131. 
 passenger, what agreements may be 
 
 made with, 37a. 
 work and labor, when no recovery 
 
 for,. 27, 123. 
 
 when request implied, 133. 
 
 See CoNsiDBKATioN, Contract. 
 GROSS NEGLECT, 
 
 See Neglect. 
 
 GROWING CROPS, 
 
 are personal estate, and may be sold 
 
 by parol, 139, 503, 1595. 
 may be levied on execution, 1595. 
 
 See Crops. 
 
 GROWING ^FRUITS, 
 
 are real estate, 139, 502, 1595. 
 
 must be sold by agreement in writing, 
 
 139. 
 cannot be levied on by execution &om 
 justice, 1595. 
 
 GROWING GRASS, 
 
 is real estate, 139, 502, 1595. 
 
 must be sold by agreement in writing, 
 139. 
 
 cannot be levied on, on justice's exe- 
 cution, 1595. 
 
 when it may be personal estate, 1595. 
 
 GROWING HOP ROOTS, 
 are real estate, 89a. 
 parol agreement for futm'e delivery,' 
 good, 89fls. 
 
 GROWING HOPS, 
 
 See Hops. 
 
 GROWING TREES, 
 
 are real estate, 89, 89a, 139, 502, 1595. 
 
 must be sold by agreement in writing, 
 89a, 139. 
 
 cannot be levied on, on justice's exe- 
 cution, 1595. 
 
 GUARANTOR, 
 of bill or note, not chargeable with 
 
 usury, 68. 
 is liable for whole amount of bill or 
 
 note, though it was sold for less, 381. 
 is liable to subsequent holders, 383. 
 
 whether his liability is as maker, 384. 
 
 See Bills OF Exchange, &c. ; Guaranty. 
 12^8 
 
 GUARANTY, 
 contract of, when binding, 137, 128 to 
 
 137. 
 may be written over endorsement of 
 
 note not negotiable, 453. 
 on a note, transferable with it, 383. 
 written on negotiable paper must com- 
 ply with the statute of frauds, 385. 
 that a note or bill shall be paid, action 
 
 may be brought upon without notice, 
 
 383. 
 written at the time of making the note, 
 
 whether regarded as a joint making, 
 
 384. 
 
 See Bills op Exchange, &c. ; Guaran- 
 tor. 
 
 GUARDIAN, X 
 
 infants must appear by, 743, 917, 934, 
 
 935, 926. 
 for infant plaintiff must be appoiuted 
 before process issues, 924, 926. 
 how neglect to be taken advantage 
 
 of, 926. 
 appointed on his declaration that 
 
 he is an infant, 927. 
 to be appointed by justice, 938. ■ 
 who to be appointed, 938, 929. 
 can only prosecute, not settle suit, 
 
 928. . . 
 is liable for costs, 934, 929, 931. 
 should si^ consent, 929. 
 for infant defendant, plaintiff must see 
 one is appointed, 933. 
 defendant may apply for the ap- 
 pointment to be made, 933. 
 is not liable for costs, 934, 933. 
 if married woman, to appear by, 
 937. 
 who to be, 937. 
 should be a real person, 930. 
 effect of /ailure to appoint on the judg- 
 ment, 930, 941. 
 general, not liable, in general, even for 
 necessaries purchased by his ward, 
 1030. 
 in socage to sue for injury to infant's 
 real estate, 758 ; see 928. 
 
 GUEST, 
 defined, and illustrative cases, 595. 
 I one boarded by the week is not, 595. 
 nor one stoppmg at a restaurant, 595. 
 implied license to, to enter inn, 513. 
 innkeeper's liability for goods of, 595. 
 
 II. 
 
 HANDWRITING, 
 when may be proved by opinion^ 1476. 
 when by comparison, 1476. 
 
 HARBORING, 
 
 servant, action for, and when it lies, 
 
 498, 499. 
 wife, action for, and when it lies, 498, 
 
 499. 
 
1018 
 
 INDEX. 
 
 HARNESS, 
 when exempt from execution, as part 
 of a team, 1588. 
 
 HAWKS, 
 private property in, 563. 
 
 HIGHWAY, 
 law of the road, 490 to 494. 
 carriages to turn out on right of center 
 of worked part, 490. 
 when excused, 490, 491. 
 rule does not refer to horsemafi, 490. 
 he must use care and turn either 
 way as necessary, 490. 
 presumption in case of injury wliile 
 
 passing, 491. 
 when plaintiff's negligence contri- 
 butes to the injmy, 491. 
 what occupation may be made of it, 
 by obstructions, building materials, 
 &c., other than ordinary traveling, 
 493. 
 when founderous, impassable, or ob- 
 structed, may pass on adjacent lands, 
 517. 
 possession of the land is -in adjacent 
 owner, subject to public right to use, 
 523. 
 
 he may bring trespass, 533. 
 public have a right to use timber in, 
 for repairs on same farm, 533. 
 rule as to fences upon, 527, 533. 
 as to cattle running on the, 533 to 540. 
 driven on the, 538, 539. 
 statute given '^ § 533 is constitu- 
 tional, 533. 
 cannot pasture cattle in, 538. 
 defense that plaintiff's close is a, 1191. 
 boundai-y of lands upon, 504. 
 obstruction of, a nuisance, 556. 
 statute authorizing removal of encroach- 
 ments on, does not abrogate right to 
 abate, 557. 
 
 abatement of nuisance does not bar 
 action for damages, 557. 
 overseers and commissioners of, when 
 
 not liable to actions, 684. 
 right of way in, public or private, in- 
 volves title to land, which justice 
 cannot try, 734, 1194, 1195. 
 See Anxmals. 
 
 HIRE, 
 carrier for , 
 
 See Cahbibb. 
 letter to. 
 
 See Letter to Hirb. 
 workman for, 
 
 See WoEiCMAN foe HniB. 
 
 HIRER, 
 
 for use. 
 
 ! Loan fob Use. 
 
 HIRING, 
 a chattel, difference between, and loan 
 
 as respects usury, 53. 
 of 13,bor, when statute of limitations 
 begins to run on claim for, 1097. 
 
 HOLDER, 
 of bill or note, to present for 'accept- 
 ance, 409, 410. 
 
 to give notice of non-acceptance, 409, 
 410. 
 
 when presentment or notice ex- 
 cused, 410, 411. 
 when not excused, 413. 
 to give notice of partial or conditional 
 
 acceptance, 414. 
 must present for payment, 433. 
 to give notice of non-paytnent, 434, 
 436. 
 
 when excused, 434, 440, 441, 442. 
 who is holder, to give notice of dis- 
 honor, 437. 
 
 See Bum of Exchakge, &c. 
 
 HOLDING OPEN, 
 a trial on return of summons or attach- 
 ment, 1305, 1306. 
 to enable defendant to obtain security 
 
 on adjom-nment, 1313. 
 to enable party to get absent witness, 
 
 1319, 1504. 
 for return of venire or attachment 
 
 against witness, 1330, 1338, 1387. 
 on the withdra;5Tal of a juror, 1308. 
 
 HOP POLES, 
 when real and when personal property 
 503. 
 
 HOP ROOTS, 
 growing. 
 
 See GBOwiwa Hop Roots. 
 
 HOPS, 
 growing, are personal property, and 
 may be sold by parol, 89a, 139, 503. 
 
 HORSE, 
 actions for warranty or fraud in sale of, 
 264 to 269. 
 
 complaints in, 963 to 966. 
 rules in relation to warranty of, 264. 
 what is an unsound, 264 (8, 9). 
 See Waerahtt. 
 HOUSE, 
 
 See DWELLING-HOUSE. 
 
 HOUSEHOLDER, 
 certain property of, exempt from levy, 
 
 1586 to 1590. 
 the exemption of his property a per- 
 sonal privilege, 1586aj. 
 intended for the benefit of families, 
 1586. 
 who is, within the meaning of the stat- 
 ute, 1586. 
 
INDEX. 
 
 1019 
 
 HOUSEHOLD FURNITURE, 
 ■wheu exempt from execution, 1586, 1588. 
 
 HUSBAND, 
 
 may avoid his contracts entered into 
 
 under dm-ess of his wife, 74. 
 may be his wife's agent, 153, lOSOa. 
 may constitute his wife his agent, 373, 
 1037. 
 
 when she is presumed to be, and 
 
 when" not, 931, 1037/ 
 
 when liable for support and necessaries 
 
 furnished his wife, 843, 1033 to 1036. 
 
 when not liable therefor, 343, 1033 
 
 to 1037. 
 for wife's debts before marriage, 755, 
 
 1030a to 1033. 
 for wife's debts since marriage, 1030, 
 1030a, 1033, 1036. 
 not liable for services rendered 
 for hei; trust estate, 1036. 
 on biUs or notes, or endorsements, 
 
 made by his wife, 371, 373. 
 for torts of wife, 1030a. 
 
 costs of her suits, 1030a. 
 cohabitation with woman as wife, 
 renders him liable for her neces- 
 saries, 1038. 
 cannot deny a woman is his wife, 
 1395. 
 may give notice not to trust wife, 1034. 
 
 make gifts to wife, 1030a. 
 cannot contract with wife, 1030a. 
 action by, for certain injuries to his 
 wife, 498, 499. v 
 for harboring ot enticing her away, 
 
 499. 
 justice's jurisdiction for, and for 
 other injuries to her, 498, 499. 
 cohabitation with woman as, 1038, 1395. 
 rule in relation to joinder with his wife, 
 
 745, 763. 
 cannot join a claim due to himself and 
 
 wife, with one to him alone, 770. 
 when wife's declarations not evidence' 
 
 againsf him, 1037. 
 complaint by or against husband and 
 
 wife, 976. 
 and wife, when witnesses for and against 
 each other, 1454. 
 
 IDIOTS, 
 who are, 33. 
 
 cannot make express contracts, 31 to 34. 
 are responsible for necessaries, 34. 
 injuries, and for torts, 34, 757, 764. 
 not liable on prior or subsequent 
 assent to, 765. 
 committee makes contracts for them, 33. 
 care of them vested in the Supreme 
 
 Court, 33. 
 committee brings suits for debts and 
 
 clairds, 33. 
 how to appear as plaintiff or defendant, 
 33, 34, 757, 935. 
 
 IDIOTS— Continued. 
 
 actions against them not generaUv per- 
 mitted, 34, 764. ■' ^ 
 remedies against, 84, 764. 
 when execution not to issue against 
 
 them, 34. 
 not required to exercise the same degree 
 
 of care as other persons, 764. 
 when competent' as witnesses, 1440. 
 
 See Lunatics. 
 
 IGNORANCE OF THE LAW, 
 no defense against actual usury, 57. 
 against a liability incurred, 667. 
 
 ILLEGAL CONTRACTS, 
 
 See Contracts. 
 
 ILLICIT INTERCOURSE, 
 agreements for, immoral and void, 43, 43. 
 in consideration of past, good, 43. 
 
 IMMORAL CONTRACTS, 
 See Contracts. 
 
 IMPEACHMENT OF A "WITNESS, 
 rules as to, 1483 to 1489. 
 by disproving the fact sworn to, or dis- 
 crediting him, 1483 to 1485. 
 practice in such cases, 1483, 1483. 
 may show his religious views, 1443, 
 1484. 
 
 his motives, position and feelings 
 ' toward either party, 1484. 
 
 his residence, occupation and 
 
 associates, 1484. 
 his conduct while testifying, 1484. 
 showing contradictory statements 
 made by him, 1485. 
 not different opinions, 1485. 
 how, and what may and may not 
 be shown for this purpose, 1485. 
 witness' attention must first be 
 called to it, 1485. 
 party may be impeached like other wit- 
 nesses, 1484a. 
 
 exception in Wisconsin, 1484a. 
 generally one cannot impeach his own 
 Witness, 1486. 
 
 nor sustain him unless attacked, 1487. 
 may contradict him by other wit- 
 nesses, 1486. 
 rule when he has deceived party call- 
 ing him, 1486. 
 when attesting witness denies his 
 
 attestation, 1846. 
 when party attempts to prove his 
 own 'case by liim on cross-exam- 
 ination, 1486. 
 must precede evidence of good charac- 
 ter, 1487. 
 the justice may limit the number of 
 
 witnesses on an, 1488, 1501. 
 of a subscribing witness to an instru- 
 ment, 1376. 
 
1020 
 
 INDEX. 
 
 IMPLIED CONTRACT, 
 
 defined, and instances of, 34, 29, 271, 
 
 297, 303, 743. 
 when there is none, 24, 297. 
 express contract precludes implied, 271. 
 
 See OONTBACT. 
 
 IMPOSITION, 
 money paid under, may he recovered 
 hack as money had and received, 
 307 (6). 
 
 IMI^OUNDING, 
 , cattle doing damage, ' 
 
 8ee Damage-feabant. 
 
 IMPROPER EVIDENCE, 
 effect of the admission of, 1489. 
 of the rejection of proper, 1490. 
 to avail a party of error for, the ob- 
 jection must be made, 1491. 
 
 INCOMPETENCY, 
 of a witness, 1489 to 1457. 
 
 presumed to be competent, 1455. 
 question as to, is decided by the justice, 
 
 1439, 1455. 
 insane persons, idiots and lunatics, 
 
 when incompetent, 1440. 
 deaf and duinb persons, competency of, 
 
 1440. 
 intoxicated persons, rule as to, 1440. 
 chUdren, when competent and when 
 
 incompetent, 1441. 
 method of determining competency, 
 
 1443. 
 not on account of religious belief, 1443. 
 
 his views may affect his credit, 1443. 
 
 he may be asked in regard to them, 
 1443. 
 a convicted felon incompetent, 1447. 
 
 competency of, restored by a pardon, 
 1447. 
 former rule of, on account of interest, 
 
 1448. 
 
 now superseded, and no one therefor, 
 incompetent, 1449. 
 parties to the action and others deriv- 
 ing title by assignment, when incom- 
 
 tent as to certain transactions and 
 
 communications, 1449 (399). 
 parties to the action, when competent 
 
 for either party, 1449 (398), 1451, 1452. 
 
 if called by an opponent, they may 
 be contradicted, 1451, 1453. 
 when husband and wife competent, 
 
 1454. 
 when objection for to be made, 1455, 
 
 1456. 
 how determined, 1443, 1456. 
 
 INCREASE, 
 of animals bailed to another, title to, 
 587. 
 
 INDECENT BOOKS AND PICTURES^ 
 contracts for printing or sale, void, 43 
 
 INDEMNITY, 
 when agreements for, against a tres 
 
 pass, are good, 40. 
 
 implied, 40. 
 
 what are implied, 41. 
 
 against past or future immoral acts, 
 44. 
 bond to oflcer, set-off not allowed 
 
 against,- 1058. 
 damages on agreement for, 1515. 
 where goods levied on are claimed by a ■ 
 
 third person, 1603 to 1605. 
 
 INDEX, 
 
 alphabetipal, to be kept by justice, 
 1376. 
 
 INDORSER, 
 
 See Endobsbe. 
 
 INEVITABLE ACCIDENT, 
 defiLned, 103. 
 
 See AocEDENT. 
 
 INFANTS, 
 who are, and their powers, 36, 1013. 
 express contracts of, voidable at their 
 election, or that of their privies, 31. 
 36, 370, 743, 1013 to 1022. 
 are voidable if he is a partner, 186. 
 when partner must sue with others, 
 
 311. 
 their notes' or endorsements are not 
 void, but voidable, 870, 1015. 
 endorsements pass a good title, 
 370, 1015. 
 are liable on contracts for necessaries, 
 743, 1015, 1020, 1031. 
 what are necessaries, 1020, 1021. 
 cannot agree upon their price, 1020. 
 not liable for them if they live 
 with, and are maintained by 
 their parents or guardian, 1020. 
 liable on a bastardy bond, 1023. 
 for tlieir wrongs,80,757,764,765,1033. 
 if guilty of fraud in purchasing 
 
 goods, 80. 
 conversion, 764, 1022. 
 negligence, 764. 
 
 using property different from 
 agreement, 764, 1033. 
 horse improperly, 764, 1023. 
 frauds, 764, 1033. 
 representing tliemself to be of age, 
 764, 1022. 
 must be by some positive act, not 
 
 mere omission, 764. 
 subsequent or prior assent to wrong 
 
 will not make them lietble, 765. 
 for fines and penalties, 1033. 
 defenses by, 1013 to 1028. 
 may show an injury happened 
 through his unskillfulness, 1022. ' 
 
INDEX. 
 
 1021 
 
 INFAirTS— Oontmued. 
 is a personal privilege, 1031. 
 
 co-defendant cannot plead it, 1031. 
 answer setting up infancy, 1585. 
 when the burden is on them to show 
 
 non age, 1343. 
 admissions of, evidence against them, 
 
 1405. 
 when and when not competent wit- 
 nesses, 1441. 
 how competency determined, 1443. 
 may affirm contrgjcts when of age, 186, 
 370, 1015, 1019. 
 requisites of, 1015, 1016, 1019. 
 implied on becoming of age, 1019. 
 may act. as agents, 158. 
 
 as attorney for another, 919; 
 may avoid their agreements, 1013, 1014. 
 what is necessary to their avoidance, 
 
 1014. 
 as to restoration of consideration, 
 
 1014. 
 when avoidance to be made known, 
 1015. 
 may avoid usurious contracts, and re- 
 cover money lent, 1016. 
 evidence of the afSrmation of such 
 
 a contract, 1016. 
 recover for work and labor, though 
 they have not performed the 
 whole agreement, 373. 
 their damages in such a case, 373. 
 if indentured by void indentures, cannot 
 recover for labor done under them,397. 
 when they can, and cannot, recover for 
 their work as one of the family, 397. 
 they are, or are not, liable for their 
 support in the family, 297. 
 when contract implied to pay for their 
 labor, 303. 
 payment of wages to infant is good, 
 302, 1031. 
 chattels, sold and replaced by parent, 
 subject to execution against the 
 parent, 1017. 
 has no power to release or settle suit, 
 
 1018. 
 when they can submit to arbitration, 
 
 1018, 1118. 
 actions by, on notes held by them, 370. 
 for personal injuries, 483, 757, 758. 
 on contracts, 743, 1018, 1019a. 
 parents may sue for injuries to them, or 
 enticing them away, 498, 499, 500. 
 when liable for their support, 343. 
 may make gifts to them, 586. 
 right of revocation of gift, 586. 
 not liable for their torts, 764. 
 degree of care required of them, and to 
 be used toward them, 483, 634, 1033. 
 right of parent or teacher to correct 
 
 them, 500, note 7. 
 must appear, by guardian, 743, 758, 917, 
 
 934, 925. 
 guardian of infant plaintiff must be ap- 
 pointed before process issues, 936. 
 
 INFANTS— Gontinued. 
 
 appointed on Ms suggestion that he 
 
 is an infant, 937. 
 general guardian has no right, as 
 
 such, to appear, 928. 
 who should be appointed, 928, 939. 
 consent of guardian, 939. 
 is liable for costs, 931. 
 guardian of infant defendant, 932 to 
 934. 
 plaintiff must see one appointed, 
 
 932. 
 defendant may apply for appoint- 
 ment of one, 932, 933. 
 need not be appointed if infant is 
 joint debtor, 858, 931. 
 judgment in such case goes 
 against all the defendants, 
 858. 
 should sign consent, 933. 
 is not liable for costs, 933. 
 guardian may appear by attorney, 934. 
 effect of omission to appoint guardian 
 
 for infant party, 930, .941. 
 married woman must appear by guar- 
 dian, 937. 
 
 See Appbaeaitob, Oontbact. 
 
 INHABITANT, 
 having a family, who is, 805. 
 
 INJURIES, 
 actions for, classified, 480. 
 to the person, 481 to 501, 634. 
 what are, in justice's jurisdiction, 
 7, 481, 498, 499, 680. 
 what are not, in his jurisdiction, 
 14, 481. 
 
 See JuBiSDiCTiON. 
 from accident, 483. 
 from unavoidable accident, 484. 
 from involuntary trespass and ten- 
 der for, 541, 1181, 1184. 
 from negligence of defendant or his 
 servants, 481, 485 to 493, 633, 634, 
 1030a. 
 
 intoxication of servants, 485, 634(1. 
 right of the master against the 
 
 servant, 489, 1030a. 
 right of servant against master 
 for negligence of co-servant, 
 489a. 
 if plaintiff's negligence contribu- 
 ted, 483, 484. 
 
 cases illustrating rule, 482. 
 when plaintiff is a child, or sick, 
 lame, aged, &c., 482, 489a, 634. 
 from an act in violation of law, 481, 
 
 493. , 
 from domestic animals, 494 to 497, 
 536, 536 to 543. 
 
 fowls or animals not restrained 
 by fences, 536. 
 from nuisances, 497. 
 from violation of the law of the 
 road, 490 to 493. 
 
1022 
 
 INDEX. 
 
 imXTRIES—Oonimued. 
 
 cannot be assigned, 743. 
 ■when do and do not survive to rep- 
 resentatives, 748, 763. 
 to real property, 501 to 563, 633, 706. 
 what are in justice's jupsdiction, 5, 
 
 7, 530, 721, &c., 1193. 
 may be brought in any county, 7. 
 remedy by distress, 699 to 706. 
 to crops, 519. 
 
 to personal property, 563, 631 to 646. 
 action lies against all the principals, 
 631, 706, 707, 765. 
 
 each liable for the whole damage, 
 706. 
 against agents, 631, 633 to 635. 
 when do and do not survive to repre- 
 sentatives, 763. 
 from violation of the law of the road, 
 490 to 493. 
 uO one fl-om use of his property by adja- 
 cent owner, 636. 
 to one's dog, cat or tamed animal, 688, 
 
 643, 644. 
 committed by dogs, 639 to 644. 
 
 by dogs of different owners, 643. 
 to persons or property, tinder color of 
 
 legal process, 647 to 673, 765. 
 See Officer, JtrBisDiCTioN, Action. 
 by deceased persons, 763. 
 by a married woman before her mar- 
 riage, 763. 
 former remedy by action on the case, 
 
 680. 
 to lands when a question of title arises, 
 
 731 to 739, 1193. 
 by unauthorized dams, 553 to 556, 559, 
 
 560. 
 by diversion of a water course, 554, 555, 
 
 558, 55801, 559. 
 by fraud, imposition or knavery, 645, 
 ' 646. 
 
 infant liable for, to personal property, 
 764, 1033. 
 
 when unskillfulness a defense to him, 
 1033. 
 a remedy for, in all cases, 680. 
 
 INN, 
 implied license to enter, 513. 
 
 INN HOLDER. 
 
 See ImsTKBEPEB. 
 
 INNKEEPER, 
 when cannot act as justice, 1. 
 may issue certain executions, 1. 
 may act in certain summary cases, 1. 
 his responsibility for the safe keeping of 
 his guest's goods, 105 (6), 695. 
 who is a guest,! 595. 
 his duties and lien, 594, 595. 
 he is liable for goods of guest, though 
 himself without fault, 695. 
 for his servants' or others' default, 
 595. 
 
 INNKEEPER— Ob»<«raMetf. 
 
 jDresumed it was his fault, 595. 
 may show negligence of guest, 
 595. 
 lien of lost if he allow goods to be taken 
 away, 595. 
 exists though goods were stolen, or 
 not owned by guest, unless inn- 
 keeper had knowledge, 595. 
 must provide a safe and post nof ice, 595. 
 
 liability if he does pot, 595. 
 liability in case of fire, 595. 
 must post certain notices, or he cannot 
 recover for certain charges, 595. 
 
 I. O. U., 
 
 is not a a note, nor receipt, 333. 
 is evidfence of money lent 333. 
 
 INSANITY. 
 
 See LimACT, DEUNKBimEss. 
 
 INSOLVENCY, 
 when concealments or misrepresenta- 
 tions as to are a fraud, 78. 
 when a defense for not returning an ex- 
 ecution, 1515. 
 for an escape, 1531S. 
 
 See Damages. 
 
 INSOLVENT, 
 action by assignee of, 744. 
 presentment of bill or note when drawee 
 is, 413. 
 
 See Btlls of Exchange, &c. 
 
 DTStTRANCE, 
 no limited partnership in, 188. 
 brokers, their lien, 593. 
 actions for, no set-off allowed, 1058. 
 
 INTENTION, 
 to talre usury, where none was taken, . 
 
 does not avoid contract, 67. 
 
 unlawM interest is not excused by 
 
 ignorance of the law, 57. 
 in usury cases, is question of fact for 
 
 jury, 59, 64. 
 of parties, to govern in interpretation 
 
 of contracts, 30, 109, 1430 to 1433. 
 
 INTEREST, 
 in what cases given as damages, 365, 
 
 416, 623, 1506, 1533 to 1626, 1538a 
 
 1531(1, 1569. 
 when reservation of, is usurious. 
 
 See UsiTRT. 
 
 when recoverable and from what time 
 computed on bill or note or other 
 *laim, 365, 416, 1532, 1534, 1535. 
 
 may be recovered on bonds, though 
 penalty exceeded, 1517. 
 
 may commence before or after making 
 of^the agreement, 1533. 
 
INDEX. 
 
 1023 
 
 USTEKKST -UonUnued. 
 
 illustrative cases of when it is allowed, 
 1533, 1534. 
 on account stated and balance struck, 
 
 1534. 
 on cash advances, 1534. 
 
 when may be recovered, though princi- 
 ' pal is paid, 1533. 
 
 application of payments to, 1533, 1537. 
 
 rate of, 1533, 1536. 
 
 how time for, computed, 1536. 
 
 when recoverable on unliquidated or 
 open and running accounts, 1534. 
 in case of mercantile or otjier usage, 
 1534. 
 
 cash advances, 1534. 
 on penalties, 1535. 
 
 method of computing when partial pay- 
 ments have been made, 1521'. 
 
 how directed to be collected on execu- 
 tion, 1571. 
 
 in actions for torts, 633, 1533, 1528a, 
 1531<j. 
 
 to be included on payment into court, 
 1151. 
 
 INTEEEST OF A WITNESS, 
 does not disqualify him, 1448 to 1451. 
 
 INTERLOOTJTORT, 
 judgment, what, 1550. 
 
 INTERPRETATION, 
 of contracts, rules concerning, 30, 109, 
 1430 to 1433. 
 
 to be construed as legal, rather than 
 illegal, 88. 
 
 INTERPRETER, 
 
 of a witness, on examination, 1468. 
 
 INTOXICATING LIQUORS, 
 sales of, contrary to law, void, 50. 
 
 INTOXICATION, 
 
 Bee DmnrKENKESS, Delirium Tremens. 
 
 INVENTORY, 
 to be made on attachmg property, 897 
 to 901. 
 
 how made, form of, and copy to be 
 left, 897 to 901. 
 of property levied by execution, 1619. 
 
 INVOLUNTARY TRESPASS, 
 by one's animals, 538, 539, 541. 
 by a person to escape a damage, 541. 
 
 IRREGULARITY, 
 defined, 663. 
 may be wMved, 30, 663, 664, 855, 903ffl, 
 
 1151, 1817 to 1330. 
 in process, does not excuse ofBccr from 
 
 executing it, 658 
 proceedings void or voidable for, 66d to 
 
 670. 
 
 IRREGULARITY— CoreimMe^. 
 when party and those acting in his be- 
 half, liable for, 664. 
 officer is exempt from liability, 
 664. 
 renders proceedings in distress damage- 
 
 feasant void, 705. 
 to issue process for infant plaintiff, 
 without appointment of guardian, 
 936. 
 how taken advantage of, 936. 
 if plaintiff says he is infant, when 
 he is not, not error to appoint 
 guardian, 937. 
 in paying money into court, 1151. 
 in conduct of jury, 1817 to 1320. 
 
 See Waiveh. 
 
 IRRESISTIBLE FORCE, 
 defined, 103. 
 
 See FoKCB. 
 
 ISSUES, 
 of law, and of fact, what are, 1308. 
 of law for the court to determine, 
 
 1308. 
 of fact for the jury to determine, 
 
 1303. 
 justice should see what they are, 
 1341. 
 
 J. 
 
 JOINDER, 
 of parties in actions on contract, 743, 
 744 to 751, 752 to 757, 1029, &c. 
 infant partner must be sued with 
 the others, 211. 
 joint debtor is a necessary 
 party, 858. 
 one cannot be plaintiff and defendant 
 
 in same cause, 767ffi. 
 husband and wife, 743, 745, 1029, &c. 
 generally all persons interested in or 
 bound by contract should be joined, 
 747, 749, 753. 
 where a joint creditor has died, 748. 
 where a joint debtor has died, 749. 
 where the contract is joint and 
 
 several, 463, 754. 
 where are several to a bill or note, 
 
 756. 
 how improper joinder to be taken 
 
 advantage of, 753. 
 constable and his sureties, 7715. 
 principal and his sureties, 756. 
 in actions for wrongs, 759 to 768. 
 of actions, 768 to 777. 
 how Improper joinder to be taken ad- 
 vantage of, 773, 773. 
 when not objected to, not a 
 ground for reversal of judg- 
 ment, 778. 
 a joint claim cannot be joined with 
 an individual one, 770. 
 
1024 
 
 INDEX. 
 
 SOmDm^Contmued. 
 
 a claim as surviving creditor may be 
 
 joined, with, an individual one, 
 
 771. 
 
 if joint claim has been divided, and 
 
 promise to pay each, one may join 
 
 Ms share with individual claim, 
 
 770. 
 
 causes arising before and after death, 
 
 768 (5). 
 all on an entire demand must be 
 joined, 774. 
 What is an entire demand, 775, 
 
 1080. 
 several trespasses need not be 
 joined, 776. 
 for torts, and on contracts, improper, 
 771as. 
 
 See CoHTKACTS, Pakties to Actions; 
 
 ACTIOHS. 
 
 JOINT AUTHORITY, 
 conferred on several, when part may 
 
 execute, 155. 
 terminates on death of one, 173. 
 
 JOINT CONTRACTS, "^ 
 
 may be made, 312, 313. 
 rules relative to, 213, 313. 
 actions upon, 747 to 754. 
 > when joint and several, 753. 
 discharge of one of the parties upon, 
 
 1111, 1112, 1114. 
 all the parties to, should be included in 
 
 an action upon, 747 to 750. 
 action upon, where a joint contractor 
 
 is dead, 749. 
 
 JOINT CREDITORS, 
 must join in an action, 745, 747. 
 if one die, action brought by survivors, 
 
 748. 
 presumed not to b? partners, unless al- 
 leged in pleading, 952. 
 release by one of, is release by all, 1108. 
 
 Bee Parties to Actions. 
 
 JOINT DEBTORS, 
 contributions by, 334 to 337. 
 whether note of one a discharge of the 
 
 joint debt, 465. 
 when discharged by release of part, 463, 
 1112, 1113, 1114. 
 where joint and several, releases 
 
 only those named, 1113. 
 covenant not to sue is not a release, 
 
 1113. 
 statutory provisions concerning 
 compromise with one of several, 
 1114. 
 effect of absence of one frojn the state on 
 the statute of limitations, 737, 1101a. 
 one cannot, after the statute of limita- 
 tions has run, revive debt against the 
 other, 788. 
 
 JOINT DEBTORS— 6'o»<m«ed 
 
 payment by one, does not revive 
 debt against the other, 1104. 
 residing in another state need not be 
 
 parties to actions, 747, 1101a. 
 attachment against, served only on part, 
 
 903. 
 if anjr die, actions are to be brought 
 
 against survivors, 749. 
 actions ahd judgments against, 749, 856 
 to 861. 
 where one is an infant he must be 
 
 Joined, 211, 858. 
 when only part served with process, 
 856 to 858a. 
 execution in such cases, 856, 
 
 857, 1572, 1573. 
 subsequent action against thos j 
 not sued, 856, 858a. 
 rules do not apply to joint and sev 
 eral debtors, nor to wrong doer i 
 859. 
 award and satisfaction by one is goc d 
 
 for all, 1147. 
 one of, may make tender, or make a/ 1 
 mission, 1160, 1399. 
 cannot confess judgment for tliS 
 others, 1544. 
 
 See COMPKOMISE, RELSAgE. 
 
 JOINT OWNERS, 
 of note, not being partners, must all 
 
 endorse it, 377. 
 one of, cannot pledge the joint goods 
 
 for his debt, 616. 
 must, all of them, sue for injury to joint 
 property, 759. 
 
 ' except where each has an undivided 
 interest, 759. 
 
 See Joint Tenants, Tenants in Com- 
 mon. 
 
 JOINT STOCK COMPANIES, 
 when cannot plead usury, 52. 
 
 nor recover usurious money paid, 
 53. 
 consisting of seven qr more, how to 
 sue and be sued, 193. 
 as to other companies, 193a. 
 
 JOINT TENANTS, 
 
 of chattels, who are, 619. 
 ' death of one vests his share in the sur- 
 vivor, 619. » 
 
 manner in which they hold and their 
 mutual rights, 630. 
 
 when actions lie between them, 6^0. 
 not for mere negligence, 620. 
 
 one may sell his interest, 630. 
 
 when one may sever and appropriate 
 his share, 630. 
 
 actions by, on contract, 747. 
 for wrongs, 747, 759. 
 where one has an undivided interest, 
 759. 
 
INDEX. 
 
 1025 
 
 JOINT TENANTS- COTi^nwet?. 
 survivor of, may bring action, 761. 
 may sell interest of one in joint property, 
 fin- his debt, 1594 
 
 if entire property sold as his, it is a 
 trespass, 1554. 
 
 JOINT WRONG DOER, 
 cannot maintain an. action for contribu- 
 tion without express promise, 324, 707. 
 all are liable severally, 631, 706. 
 rule of liability in iiguries to person 
 or property, 632. 
 ' each liable for whole damage, though 
 they contributed unequally to it, 
 706. 
 
 if diflferent amounts assessed, plain- 
 tiff is entitled to judgment for 
 highest sum, 706. 
 joint or separate actions may be 
 brought, 707. 
 
 can have but one satisfaction, except 
 for costs, 707. 
 release of one discharges all, 707, 1108, 
 
 1112. 
 slight evidence only necessary to con- 
 nect one with another, 629. 
 where only one is served with process, 
 
 859. 
 admissions by one of several, 1400. 
 
 JUDGMENT, 
 the sentence of the law, 1585, 1537. 
 five sorts and defined, 1536. 
 on demm-rer, 1538. 
 
 8ee Demtieeek. 
 cannot be amended after it is entered, 
 
 1663. 
 On separate issues, 1539. 
 on confession. 
 
 See CoNTESSiosr of Judgmbnt. 
 of nonsuit, 1285, 1271 to 1275, 1536, 
 1547. 
 after payment of money into court, 
 
 1153. 
 plaintiff must submit to, before final 
 submission of the cause, 1265, 1372, 
 1314. 
 
 if not till afterward, is a bar, though 
 called a nonsuit, 1265. 
 on evidence, when should be granted, 
 
 1273, 1814. 
 cannot be prevented by waiving costs 
 
 in the judgment, 1273, see 1565. 
 to bfe entered forthwith, 1274, 1552. 
 erroneous, if not so entered, 1552. 
 of discontinuance, 1536, 1548. 
 
 See DiSCONTINUANCB, 
 
 when mutual accounts are over $400, 
 
 15, 1548. 
 on the merits in such case, erroneous, 
 
 not void, 15, 739. 
 after payment of money into court, 
 
 1153. 
 
 129 
 
 JUDGMENT— ConiJwe,?. 
 
 to be entered forthwith, 1274, 1552. 
 erroneous,, if not so entered, 1553. 
 when with costs, 1548. 
 on the merits, 1536. 
 ■rtrhen to be rendered tar the plaintiff, 
 1271(121), 1540. 
 for the defendant, 1271 (130), 1540. 
 money paid on one that is afterward 
 reversed is recoverable, 307 (8), 315. 
 may be ordered td be restored, 307 
 
 (8). 
 purchaser of prOpferty on the sale 
 does not lose his title, 568. 
 if without jurisdifction, is void, and no 
 bar to subsequent suit, 653 to 603. 
 manner of assailing it for want of 
 jurisdiction, 657 to 660. 
 when void for irregularity, 663 to 667. 
 against one not served, nor' in court, 
 
 void, 663. 
 when an action may and may not be 
 
 brought on, 718. 
 in actions on bonds, 716, 717. 
 upon a usurious loan or contract, valid 
 until vacated, 65. 
 security for such a judgment is 
 
 validj 65. 
 how such a judgment in a justice's 
 court vacated, 65. 
 and decrees, when statute of limitations 
 runs on, 741, 1095, 1096. 
 as to the statute on jUsticte' judg- 
 ments, 1095. 
 void if for an amount beyond justices' 
 jurisdiction, where it is limited, 851. 
 if verdict Jar such an amount, excess 
 may be remitted and judgment 
 accordingly, 1374. 
 against, joint debtors, 856 to 860. 
 wheii only part served with process, 
 
 856 to 860, 1557. 
 effect of in subseqilent suit against 
 
 those not served, 856, 857, 858a. 
 must be against all the debtors, even 
 
 if one is infant, 857, 858. 
 statute as to does not apply to joint 
 and several claims, 859. 
 nor to wrong doers, where judg- 
 rilent is entered against those 
 only who are served, 859. 
 paid by joint debtors, remedy between, 
 
 324. 
 on return of warrant, cannot be entered 
 even by consent, without defendant's 
 appearance, 873. 
 cannot be given in plaintiffs favor with- 
 out his appearance, 915, 988. 
 when given for or against defendant, 
 
 without his appearance, 940, 941. 
 not void, but erroneous when constable 
 
 appears as advocate, 919. 
 when erroneous and when not, for lack 
 
 of guardian for infants, 930. 
 on defendant's ofR>r, 945, 1148, and in 
 note 2. 
 
1026 
 
 INDEX. 
 
 JUDGMENT— Corafera?/^(?. 
 against married women, 1030. 
 may be used as a set-oflf, 1053, 1074. 
 except T^liere rendered In attachment 
 proceedings, 1053, 1074. 
 or while defendant is under ar- 
 rest on execution on the judg- 
 ment, 1074. 
 when a tar to a new action, 1079 to 
 1093, 1365, 1413, 1414, 1549. 
 against one of several joint con- 
 tractors is a bar, 1086. 
 when not a bar, 1084, 1085, 1549. 
 against principal, not a bar to ac- 
 tion against his sureties, 1086. 
 accord and satisfaction of, 1145. 
 after payment of money into court, 
 
 1152, 1158. 
 in case of tender for casual or involun- 
 tary trespass, 1184. 
 void where justice is related to either 
 party, even by consent, 1264. 
 he should dismiss the cause, 1364. 
 by default, not allowed in justices' 
 courts, 958, 1266, 1541. 
 if defendant does not appear plaint- 
 iff must make out his case, 958, 
 1266, 1541. 
 when to be entered where one sued 
 with others, for a tort is discharged, 
 1267. 
 will be reversed if justice misleads de- 
 fendant, 1269. 
 when to be with costs, 1271, 1374, 1540, 
 1548. 
 only those of prevailing party, 
 
 1559. 
 amount of, 1274, 1558. 
 prospective may be included, 1564. 
 will not be reversed if improper or too 
 
 great costs are included, 1559. 
 rendered on Sunday void, 1330, 1552. 
 
 election day when not void, 1330. 
 against defaulting juror, 1332. 
 may, by consent, be rendered by justice 
 
 if the jury disagrees, 1325. 
 interest recoverable on, 1533. 
 cannot be arrested by the justice, 1535. 
 be amended by the justice, 1553. 
 effect of amendment, if made, 1553. 
 law will give proper effect to, notwith- 
 standing its form, 1535. 
 is interlocutory or final, 1550. 
 what interlocutory, 1550. 
 final, what and when, 1549, 1551. 
 when to be entered, 1374, 1552. 
 if not entered at those times will be 
 reversed, 1553. 
 time for when it commences, and 
 how computed, 1552. 
 may be extended by agree- 
 ment, 1552. 
 what is sufficient entry of, for tUs 
 purpose, 1552. 
 against executors or administrators on 
 set-off pleaded against them, 1551. 
 
 JUDGMENT— (7OT!!mM«d;. 
 how made a lien upon real estate, 1553, 
 
 1555,1556. 
 transcript may be filed in county clerk's 
 office, 1553. 
 is then judgment of county court, 
 
 1553. 
 may be filed in other counties, 
 
 1553. 
 after it is filed, justice has no con- 
 trol of judgment, 1555. 
 in action commenced by attachment, 
 executions to be levied only on prop- 
 erty attached, 1556. 
 whether action can be maintained 
 on till property exhausted, 1556. 
 discharged by consent to escape of de- 
 fendant from execution, 1645. 
 
 JUDICIAL OFPICEKS, 
 . not liable for mistakes of "judgment, 660 
 697. 
 whether liable for misconduct, 697. 
 
 JUDICIAL PROCEEDINGS, 
 how authenticated as evidence, 1360, 
 1361. 
 
 JUNIOR, 
 effect of omission of, in a name, in a 
 pleadmg, 1009. 
 
 JURISDICTION, 
 definition of, 648. 
 
 general, limited or inferior, original or 
 appellate, 649. 
 civil and criminal, 649. 
 of justices' courts, is limited, 649. 
 courts of inferior, cannot exceed the 
 power expressly conferred, 650. 
 illustrative cases, 650 to 654. 
 must have jurisdiction of process, 653. 
 process must be properly served, 
 
 and by proper officer, 653. 
 defendant may waive objections to, 
 
 653. 
 when appearance, without objec- 
 ' tion, is not a waiver, 653. 
 must have jurisdiction of amount, 
 
 where it is limited, 851. 
 excess may be remitted, 6, 1274. 
 territorial, of a justice, 1. 
 as conservator of the peace, 1. 
 send process anywhere within coun- 
 ty, 1. 
 issue attachment or take confession 
 
 anywhere within the county, 1. 
 where parties are residents of his 
 county, 2, 783. 
 non-residents, 3, 783. 
 absconding defendant, 3, 783. 
 for penalties, 3. 
 
 parties must be within county, 3. 
 acts without it are void, 655. 
 of a justice of the peace, 4, 6 to 17, 18 
 to 20. 
 
INDEX. 
 
 102T 
 
 3maSDl(jnO^— Continued. 
 
 cases not in tlieir jurisdiction, 5, 210, 
 680. 
 if claim exceeds jurisdiction, may remit 
 excess, 6, 1274. 
 
 how to claim damages in such a case, 6. 
 unlimited, in actions on certain bonds, 
 and justices' judgments, 10, 11, 717, 
 851, 1517. 
 want of, renders judgment or process 
 void, 17, 20, 21, 650 to 657, 804. 
 liability of officers and others acting 
 
 under it, 658, 659, 667. 
 the judgment, not a bar to a new 
 acti(m, 656. 
 manner of assaUing judgments for want 
 
 of, 657 to 660. 
 justice has, though amounts exceed $400, 
 till he decides as to the amounts,. 15. 
 when so ascertained, to enter a judg- 
 ment of discontinuance, 15, 1548. 
 if he enters judgment on the merits 
 not void, but en-oneous, 15, 739. 
 consent of parties will not confer, of 
 subject-matter, 19, 728, 1194. 
 nor where amount exceeds justice's 
 
 jurisdiction, 19, 151. 
 will over person, 20. 
 if justice has, but errs in its exercise, his 
 acts are voidable only, 17, 18, 660. 
 not then responsible for errors or 
 judicial acts, 660, 663, 697, 1347. 
 where it depends on a fact to be deter- 
 mined by the justice, his decision is 
 conclusive, 661, 663, 804. 
 relationship to suitor ousts justice of, 
 
 ev^ by consent, 1, 3, 1264, 1543. 
 one keeping a tavern is ousted of civU 
 jurisdiction, 1. 
 
 may issue execution on former judg- 
 ments, 1. 
 none where title to land is in question, 
 5, 520, 723 to 739, 1193 to 1300. 
 possession is not title, and justice has 
 jurisdiction where that, and not 
 right of possession is in question, 
 530,733. 
 what is possession, 520. 
 justice's, of actions for injuries to, or 
 enticing or harboring one's wife, child 
 or servant, 498 to 501. 
 for false returns, escapes, official neg- 
 ligence and certain frauds, 680. 
 of actions for penalties, 709. 
 commenced by attachment, 714, 715. 
 See Attachment. 
 
 on bonds, 716, 717. ^ 
 
 confessions of judgment, 719. 
 See Confession of Judgment. 
 actions of replevin, 4, 720. 
 against corporations, 730. 
 
 foreign may appear and submit 
 to, 730. 
 not of actions arj-iin-it exeonlors and 
 axlmi!ii-i'rit')r ■, 7,,0. 
 
 JURISDICTION— aonfewff. 
 
 when of actions between partners, 
 210, 479, 751. 
 of the person acquired by the return of 
 process, 868. 
 
 when by appearance without objec- 
 tion, 20, 795, 868. 
 need not appear in summons, 851. 
 of action against joint debtors not served 
 
 in origfnal suit, 858as. 
 none on return of warrant, unless de- 
 fendant personally appears, 873. 
 when lost, by not issuing summons in . 
 attachment cases, 903. 
 when by adjournment without oath 
 or bail, 1205. 
 lack of may be shown, 1416. 
 
 See Actions, Justice of the Peace. 
 
 JURORS, 
 privileged from arrest, 879 (9). 
 qualifications of, 1278, 1279. 
 inhabitants of the town may be, in 
 
 actions for penalties, 1394. 
 who exempt from serving as such, 1380, 
 
 1280a. 
 may be discharged on Sunday or elec- 
 tion day, 853. 
 trial by, 1277, 1331. 
 
 in replevin cases, 4, pg. 47. 
 venire for, 1278, 1381. 
 when to be called for, and by whom, 
 
 1277. 
 summoning the jury, 1282. 
 the parties may agree on less than six, 
 1378, 1281, 1383; ;l383a. 
 when so to agree, 1383 (95), 1382^. 
 the venire to be delivered to a constable 
 without bias, 1283, 1283. 
 out of court, how to be issued and 
 
 delivered, 1283. 
 how executed and returned, 1283, 1384. 
 return evidence against defaulting ju- 
 ror, 1284. 
 
 to be on venire or attached to it, 
 1384. 
 to have a reasonable time to attend after 
 
 notice, 1284. 
 waiver of trial by, after impanneled or 
 venire issued .or returned, 1219, 1385, 
 1388, 1388. 
 
 by not demanding venu'e, 1377. 
 calling and drawing of the jury, 1387. 
 when and how taken from bystand- 
 ere, 1287 (101).' 
 new venire, when issued, 1387 (102), 
 1288. 
 
 holding open cause for, 1287. 
 is the process of the party demanding 
 the first, 1288. 
 
 he cannot object to error therein, 
 1288. 
 venire, defect in, cured by going to trial 
 without objection, 1288. 
 costs for, paid by party demanding it, 
 1289. ' 
 
1G.28 
 
 INDBX. 
 
 .TUROKS — Opntiiiue^. 
 
 abide tlie event of the cause, 1289. 
 challenge of, 1290 to 1805. 
 
 8ee Challbnob. 
 
 oath to, 130S. 
 
 order and practice on trial before, 1306, 
 
 1309 to 1313. 
 may or may not be charged by justice 
 as he sees fit, 1307. 
 error in charge cause for reversal, 
 
 1307. 
 refusal to charge as requestedi not a 
 charge to the contrary, 1307. 
 ■withdrawal of one of, on trial, 1308. 
 
 effect of, 1308. 
 when may be discharged after trial has 
 
 commenced, 1318., 
 to be kept together and quiet and free 
 from disturbance during and after 
 trial, 1314, 1315. 
 effect of their drinking spirituous liquors, 
 
 1314, 1317, 1318. ' 
 may or may not retire to deliberate, 
 1315, 
 
 if they retire, constable sworn to 
 attend them, unless it is waived, 
 1315. 
 parties may agree that one not a 
 
 constable attend them, 1317. 
 form of oath, 13l5, 1316. 
 if they do. not retire, no constable 
 ' needed, 1317. 
 
 when constable not sworn, parties 
 cannot objpct to irreguiatities of 
 ' jury, 1317. 
 conduct and duty of, after retiring, 1318 
 to 1325. 
 not to sfejjarate till verdict agreed to, 
 
 and delivered or sealed, 1318. 
 effect of their conversing or hearing 
 conversation from others relative to 
 the suit, 1318, 1323. 
 a,ttempt to communicate verdict 
 before it is delivered, 1339. 
 may not find a verdict by a lot or an 
 average, 1319. 
 
 use lot as a mode of arriving at it, 
 1319, 
 decide the law and the fact, subject to 
 appeal, 1320. 
 
 questions of fact in cases of fraud, 76fls. 
 in their delifceration, cannot have new 
 
 or further evidence, 1320, 1321. 
 when may take papers given ia evidence 
 with them, 1321. 
 
 cannot take a law book with them, 
 1822. 
 course when they desire an explanation 
 of the law or the testimony, 1333, 
 1323. 
 the justice cannot confer with them, 
 without express consent of parties, 
 1334. 
 
 consent not inferred fi'om their silence, 
 1334. 
 
 JURORS— Continued. 
 if they do not agree, justice may dis- 
 charge them, 1335. 
 
 is a matter of discretion, 1825. 
 verdict of, must be a unanimous finding, 
 
 1336. 
 
 must be general, for plaintiff or de- 
 fendant, 1336. 
 
 how to find double and treble dam- 
 ages, when they are proijer, 1336. 
 
 delivery of the, and its form, 1327. 
 
 when may be amended before entered, 
 1327, 1328. 
 
 when received upon Sunday, 1330. 
 polling the, 1328. 
 justice may send jurors back to amend 
 
 verdict, 1328. 
 
 may direct sealed verdict, 1828. 
 where goods levied on are claimed by a 
 
 third person, 1603 to 1605. 
 fees of, 1561. 
 defaulting, proceedinga against, 1331 to 
 
 1884. 
 
 conviction of, 1332. 
 to be entered in docket, 1333. 
 
 execution against, 1883. 
 demand submitted to, is barred, though 
 
 not passed on by them, 1080. 
 
 JURY, 
 
 See Tbial, Vebdict. 
 See Jtirob^. 
 
 JUSTICE OF THE PEACE, 
 
 is a constitutional, judicial and county 
 
 officer, 1. 
 t-erritorial jurisdiction of, 1. 
 if he acts beyond it, his acts are void, 
 655. 
 must reside in the town in which he is 
 elected, 1. 
 not be a relative of the parties, or 
 : of a stockholder, 1, 3, 1264, 1543. 
 may perform certain ministerial 
 
 acts, though related, la. 
 cannot nonsuit on that ground, 
 
 1364. 
 judgment, even by consent, void, 
 1264. 
 a tavern keeper, 1. 
 may issue certain executions, 1. 
 act under certain smnmaiy 
 powers, 1. 
 may issue certain process, or make it 
 returnable anywhere in his county, 1. 
 take confession of judgment any- 
 where in his county, 1, 1543. 
 must reside in town, or adjoining where 
 some of the parties reside, if they arc 
 residents, 3, 782. 
 what, to act when parties are non-resi- 
 dents, or defendant has absconded, 3, 
 782. 
 if a member of the legislature, may or 
 
 not act at his discretion, 3. 
 when he may punish for contempts, 16, 
 1336, 1341, 1384 
 
INDEX. 
 
 1029 
 
 JUSTICE OF THE P'E,AClS^0ontmued. 
 when liable for his acts, 17, 655, 667, 
 680, 684, 695, 697, 698, 804, 847. 
 not liable for his acts, 17, 18, 660, 
 663, 684, 697, 698, 830, 1347, 
 1563. 
 consent will not confer jurisdiction up- 
 on, of the subject-matter, 19. 
 will of the person, 30; 
 prohibited from buying claims, or get- 
 ting them in his hands for prosecu- 
 tion, 68. 
 answer in such a case, 69. 
 plaintiff may be required to attend 
 to be examined, 70, 71. 
 cannot call a cause prior to time named 
 
 in summons, 663. 
 may draw aflSdavits, applications and 
 
 notices, and charge for them, 883. 
 should not proceed in cause till return 
 of service is made, or return is waived 
 by defendant, 868. 
 may depute one to serve process, except 
 venire, 870, 904. 
 who may be deputized, 870. 
 if absent on return of warrant, defend- 
 ant taken before another one, 873. 
 cannot enter judgment on warrant, un- 
 less defendant appear, 873. 
 be a witness in his own court, ex- 
 cept by consent, 981, 1370. 
 proceedings where he is a material wit- 
 ness, 873, 981 to 988. 
 in case of a warrant, 873, 987. 
 in other cases, aflSdavit necessary, 
 
 981 to 976. 
 must determine from the facts in 
 
 the affidavit, 986. 
 only applies to defendant, 981. 
 right of to adjourn, or hold cause open, 
 
 on his own motion, 1304 to 1308. 
 when he loses jurisdiction by adjourn- 
 ment without oath or bail, 1305. 
 must be present to adjourn cause, 1307. 
 in trial by, without jury, acts as jUdge 
 
 and jury, 1363. ^ 
 
 cannot be challenged for favor, partial- 
 ity or corruption, 1364. 
 ought not to act when he has been con- 
 sulted, or given his opinion, 1364. 
 misleading a party, a ground for rever- 
 sal of judgment, 1369. 
 must swear the witnesses himself, 1370. 
 docket to be kept, and what to contain, 
 1275. 
 when and how made evidence of its 
 contents, 1376, 1353 to 1356. 
 should keep an alphabetical index, 1376. 
 if he removes from county, or dies, his 
 books and papers to be filed with 
 town clerk, 1376. 
 may charge jury if he chooses, 1377. 
 must decide on the evidence, not on his 
 
 own knowledge, 1333. 
 how to receive and enter verdictof jury, 
 1337. 
 
 JUSTICE OF TSEVEAC^-Oontinued. 
 may poll the jury and request them to 
 amend their verdict, 1337, 1338. 
 send the jury back to amend ver- 
 dict, 1338. 
 direct a sealed verdict, 1338. 
 when presumed to be such, 1386. 
 is not liable to a witness for his fees, 
 
 though he received them, 1563. 
 discretion of, inpermitting defendant to 
 appear after return, 906 to 913. 
 in calling action on return of war- 
 rant, 913 to 915. 
 in admitting evidence, 1496 to 1504. 
 as to the number of witnesses to a 
 
 fact, 1501. 
 as to permitting leading questions, 
 
 1471, 1503. 
 a^to acquitting one of several de- 
 fendants, 1504, 
 as to disregarding variances, 945 
 
 (10), 1498. 
 to allow withdrawal of juror, 1808. 
 in other respects, 1503, 1664, 1665. 
 
 See DisoKBTioir. 
 
 decision of, on collateral and other 
 questions, when conclusive, 1497 to 
 1505. 
 
 cannot stay proceedings, or dismiss 
 cause, because costs of former suit are 
 not paid, 1566.' 
 
 power of, as to amendments, 1661 to 
 1664. 
 
 fees of, 1561. 
 
 may issue executions after the expira- 
 tion of his office, 1583. 
 
 duty on an appeal from his judgment, 
 1650, 1653 to 1661. 
 
 See Appeai. 
 
 cannot supersede an attachment, issued 
 on false proof, 848. 
 
 JUSTICE, 
 public, agreements for the prevention of, 
 void, 45. 
 
 JUSTICES' COURTS, 
 jurisdiction of, 
 
 See JtmiSDiCTioiir. 
 
 are of limited jurisdiction, 649. 
 
 must pursue their authority strictly, 650, 
 
 668. 
 pleadings in, general rules of, 945. 
 not courts of record, 1095. 
 
 JUSTICE'S JUDGMENTS, 
 See Judgments. 
 
 .lUSTIFICATION, 
 in action for impounding animals doing 
 
 damage, 1186. 
 of security on an adjournment, 1336. 
 oath may be administered to surety, 890. 
 
1030 
 
 HfDEX. 
 
 K. 
 
 KNAVERY, 
 injuries by, tlie subject of action, 645. 
 
 KNIVES AND FORKS, 
 ■when exempt from execution, 1586. 
 
 "KNOWNOTHINO," 
 competency of member of, lodge as a 
 juror, 1295. 
 
 LABORERS, 
 
 when they have a lien, 593. 
 
 LAND, 
 
 what is included in the term, 89a, 139, 
 
 502 to 505. 
 surrounded by an imaginary fence or 
 
 close, 505. 
 license to enter upon, 506 to 516. 
 given by law and by the owner, 514, 
 
 515. 
 when one a trespasser on, ab initio, 
 
 514, 515. 
 to enter with a key, not a justifica- 
 tion of a diflferent entry, 511. 
 sometimes given by law, 512. 
 agreement to sell, does not necessa- 
 rily give, 509. 
 when it can and cannot be revoked, 
 507, 513. 
 entry upon, wrongfully, actionable, 514 
 
 to 519. 
 any one may enter on, in pursuit of 
 
 ravenous animals, 562. 
 justice no jurisdiction, where title to is 
 in question, 5, 520, 723 to 739, 1193 
 1200. 
 possession of, presumed to be in the 
 
 owner, 520. 
 included in a highway, subject to ease- 
 ment only, 522. 
 bounded upon a highway or stream, 
 
 extends to the center, 504. 
 crops grown on leased, at the end of the 
 
 lease, 523. 
 buildings negligently destroyed upon, 
 
 524. 
 rights of lessee for injuries to, 534. 
 of owner to use it unmolested in its 
 natural state, 525. 
 in building to the obstruction of 
 neighbors lights, 507, 561. 
 injuries to, by anmials or inanimate 
 chattels, 526. 
 
 by negligence of a person building a 
 
 smithy, or a steamboat passing, 534. 
 
 in all cases of, damages must be given, 
 
 553. 
 
 Hon on, by judgment, how made, 1553, 
 
 1555. 
 
 none on judgments recovered upon 
 attachments, 1556. 
 
 Bee License, Real Peopeety, Title to 
 Land. 
 
 LANDLORD AND TENANT, 
 what are fixtures as between, 1596. 
 no implied agreement that premises 
 are tenantable, 344(;. 
 that landlord will make repairs, SOc. 
 is implied ' license that landlord may 
 enter on demised premises, 513. 
 that premises are suitable for the pur- 
 poses for which rented, 844c. 
 landlord when to join with tenant in 
 actions, 519. 
 actions by, against tenant, 
 
 See iRent, Use amd Occupation. 
 
 claim of, against tenant for rent, or 
 
 not making repairs, 1518. 
 when liable to adjacent owner for 
 
 neglect to repair, 535. 
 eviction by, what constitutes and 
 
 effect of, 344, 344a, 344S, 344«. 
 tenant is liable for rent if he occupies 
 under void lease, 145. 
 cannot dispute landlord's title, 335, 
 
 839, 1395, 1402.' 
 
 may show it determined, 839. 
 
 rule only applies to actions between 
 landlord and tenant — not as to 
 other parties, -4395. 
 rights of, when landlord agrees to 
 
 make repaii-s and does not, 3i4d. 
 when to sue for trespass or other in- 
 jury to the demised land, 519, 524. 
 
 to join with landlord, 519. 
 right of, to crops growing at termina- 
 tion of lease, 533. 
 when entitled to the benefits of the 
 
 statute relative to division fences, 
 
 528. 
 damages against him for rent, or not 
 
 repairing, 1518. 
 
 See Rent, Use and Occupation. 
 
 to whom to pay rent if landlord sells 
 land, assigns lease, or dies, 336a. 
 
 eviction of, what constitutes, and ef- 
 fect of, 344, 344a, 344J, 344e. 
 surrender by. 
 
 See Leases. 
 
 See Leases, Rent, Use and Occupation. 
 
 LAW, 
 issue of, defined, 1203. 
 
 LATENT AMBIGUITY, 
 what, and how explained, 109, 1423. 
 
 LEADING QUESTIONS, 
 
 what, and when allowed, 1363, 1471. 
 1503. ' 
 
 generally not allowed in examination in 
 chief, 1471. 
 
 permitted by the party calling an un- 
 willing witness, 1503. 
 
 allowed on cross-examination, 1477. 
 
 allowance is a matter of discretion with 
 the justice, 1363, 1503. 
 
INDEX. 
 
 11031 
 
 LEASES, 
 for more than one year, are void if not 
 in writing, 127 (4), 145 to 148. 
 must express the consideration, 137. 
 
 what is sufScient, 137. 
 may commence at a future day, 139. 
 void, if tenant occupies he is liable for 
 rent, 145, 335, 343. 
 if possession not taken lessee is not 
 liable, 335. 
 how they may be surrendered, and il- 
 lustrative cases, 146 to 150. 
 landlord's death, or sale of the land 
 is not surrender, 336a. 
 necessary, or the relation of landlord 
 and tenant must exist, to sustain ac- 
 tion for use and occupation, 835. 
 when rent on, due, 335. 
 if tenant holds over, new lease implied 
 on same terms, 388, 840. 
 unless there is an agreement to the 
 contraiy, 340. 
 from year to year, 145,' 338 to 341, 610. 
 how terminated, 339. 
 
 in New York city, 339. 
 tenant holding over, holds f^om 
 year to year, 388, 839. 
 general letting defined, 889. 
 no recovery can be had on, when for un- 
 lawful purposes, 341. 
 express contract not necessary ; holding 
 
 by permission eiiough, 343. 
 forfeiture of, not waived by allowing 
 
 tenant to hold over, 842a. 
 action upon, 334 to 840, 842 to 344a. 
 where premises injured, destroyed 
 
 or lost by fire, &c., 344. 
 when not maintained, 841, 344 to 
 344& 
 
 iSee EvTCTioir. 
 
 when it is implied that premises are 
 suitable, 344c. 
 no implication that they are tenant- 
 able, 344e. 
 nor that either shall repair, 
 344c. 
 rights of tenant where landlord agrees 
 
 to repair, and does not, 344(f. 
 not evidence of title to land, and may 
 be given in evidence in justices' court, 
 725. 
 tenant may recover for injuries to build- 
 ings on leased land, 524. 
 for uncertain time, tenant entitled to 
 crops he has planted, 523. 
 I !ijrtain tune, not entitled to growing 
 crops, 523. 
 tenant cannot dispute landlord's title, 
 335, 839, 1895, 1403. 
 Bee Laudlobd and Tenant, Rent, Use 
 AND Occupation. 
 
 LEGISLATURE, 
 when services before may and may not 
 be recovered for, 87a, 394. 
 
 LEGISLATURE— CoreJjTMicA 
 note given for, void, 394. 
 member of, may or not act as justice, 
 tice, at his discretion, 2. 
 and officers of, when privUeged 
 from arrest, 879(2). 
 
 LEGITIMACY, 
 
 when, and when not, presumed, 1393. 
 
 LENDER, 
 of money, cannot charge for his trouble 
 
 in procuring the money, 63. 
 cannot allege that a security he has 
 
 received as payment is usurious, 67.' 
 has lien on securities deposited with him 
 
 as security, 601. 
 
 LETTERS, 
 an agreement may be made by, 34. 
 when the agreement is complete, 24. 
 
 LETTER TO HIRE, 
 of his own care and attention, liability 
 of, 104. 
 
 LETTING TO HIRE, 
 defined, and kinds and instances of, 100. 
 liability of the bailee, 102. 
 may make special agreement for his 
 responsibility, 103. 
 usury in, 53. 
 
 LEVY, 
 what constitutes a, 1610. ' 
 how made, 1609 to 1612. 
 property subject to, and exempt from, 
 1585 to 1608. 
 
 See Execution, Peksonal Moktoage, 
 Sale. 
 
 interest of special partner cannot be 
 
 levied on execution against him, 
 
 189. 
 where third person's goods are mixed 
 
 with execution debtor's, 659. 
 goods in purchaser's hands, that were 
 
 sold to keep them from levy, 674. 
 
 mere knowledge of the judgment 
 not enough, 674. 
 sold conditionally, 1591. 
 
 fraudulently transferred, 674, 1597 
 to 1603. 
 pledged property, 1592. 
 wearing apparel exempt from, 1585, 
 
 1586. 
 on gold and silver coin, 1593. 
 bills of corporations, 1592. 
 bona fide purchaser or mortgagee before 
 actual, is protected, 678, 675. 
 one not protected who has notice of 
 
 execution, 678. 
 after actual levy, not protected, 673. 
 
 except when execution was dor- 
 mant, 673. 
 lien acquired by, 673 to 680, 1574. 
 
1062 
 
 IHBEX. 
 
 LWf^—Omtmued. 
 
 priority o/lipn upon, 673 to 680, 1607, 
 
 1615. ■ ' 
 prior enures to the benefit of a junior 
 execution, 1613. 
 is subject to' the right of stoppage in 
 
 transitu,, 337! 
 an actual, necessary to yest title in offi- 
 cer and enable him to sue for the 
 .goods, 1613,1615. ' 
 officer liable in conversion, for unlaw- 
 ful, 5^5, 625, 671. 
 
 mere naked lew sufficient for this 
 purpose, 566, W^. 
 even if waived before action, 635. 
 when third person's goods are mixed 
 
 with debtor's, 659. 
 liable if he only levies on defendant's 
 
 right, 567. 
 not liable for excessive, 573, 1585a, 
 has discretion as to its amount, 573, 
 1585a. 
 must search fo? goods, on receipt of 
 execution, 1584 
 party hot liable for unlawful, unless he 
 
 participated in it, 671. 
 third person liable for unlawful, if 
 he du-ected or indemnified officer, 
 671, 765. 
 
 liability of aittorney for, 765. 
 excessive is valid. 573, 1585a. 
 and sale must be made before return 
 
 day, 675, 1584, 1615. 
 when and when not a satisfaction, 1578, 
 1614. 
 , a second may be made, 1578, 1614, 
 becomes void if there is improper delay, 
 
 1606, 1607, 1613. 
 receiptor of the gop^ls, 575, 1611, 1618. 
 proceedings where property is claimed, 
 
 1603, 1604. 
 is priiha facie evidence that debtor had 
 goods, in action against the officer, 
 696. 
 evideiice m action for goods levied on, 
 
 568. 
 right to e»t?r dwelling-house or other 
 building to make, 687,' 6^, 1345, 
 1609. 
 removal of goods before actual, 1608. 
 cannot be retained by officer, who has 
 paid execution, for his indemnity, 
 1613. 
 on goods in store, attaches to those after- 
 ward put therein in place of those, 
 sold, 1614. 
 should be endorsed on execution, and 
 inventory made, 1619. 
 what endorsement should contain, 
 1619. 
 if no goods to levy on, when body to be 
 
 taken, 1638, 1631. 
 when officer may forbear to make, and 
 take security, 1648.. 
 
 See Execution, Constable. 
 
 LIBEARY, 
 family, when exempt ftom execution, 
 1586, anfl on page 894. 
 
 LIABILITY, 
 when limited to amount paid, 25. 
 by surety, 319. 
 endorser, 333, 449. 
 
 LIBELS, 
 actions for, not in justice's jurisdiction, 5. 
 contracts to print or publish, void, 43. 
 
 LIBERUM TENEMENTUM, / 
 
 old plea of; at common law, abrogated, 
 1199. 
 
 LICENSE, 
 with respect to real estate, defined, 123. 
 when and how revocable, and when 
 not, 133, 507, 513. 
 to whom notice of revocation to be 
 
 given, 507. 
 subsequent rights of parties, 507. 
 all done before revocation, justified, 
 133, 507. 
 its conliauance, 132, 507. 
 is not an interest in land, and is not 
 governed by statute of frauds, 143, 
 5.07, 1195. 
 does not oust justice of his jurisdiction, 
 
 1195. 
 is not assignable, 143. 
 TKUol, to insert beams in wall of house, 
 
 valid, 143. 
 may be express or implied, 606 to 513. 
 
 Ulustrative cases, 506. to 513, 563. 
 when it gives an authority to take others 
 
 on to the land, 508. 
 implies an authority to do everything 
 
 necessary, 508. 
 not implied from agreement to sell, 509. 
 nor to cut trees from license to enter, 
 509. 
 to enter house with a key, does not 
 
 justify entry without, 511. 
 when givejn by law, 513. 
 to an officer, 513. 
 landlord or reversioner, 512. 
 creditor, 512. 
 guest at an inn, 613. 
 to show one's property on demised 
 
 land, 512. 
 purchaser of property thereon, 512. 
 abuse of, renders party trespasser 
 
 from the beginning, 514, 515. 
 in pm'suit of ravenous animals, 
 562. 
 to sell spirituous liquors, must be shown 
 by defendant, 1343. 
 ale is spirituous liquor under law, 
 .1343. 
 See Land, Reai Pkopkrtt. 
 
 LICENTIOUSNESS, 
 contracts tending to promote, void, and 
 illustrative cases, 43 to 45. 
 
INDES. 
 
 LIEN, 
 definition and kinds of, 589. 
 general, wliat, 589. 
 founded on custom or contract, 590 
 
 to 593. 
 not favored in law, 590. 
 in favor of an agent, 590. 
 whether created by notice, 590. 
 upheld in -what particular classes of 
 business, 591, 593. 
 attorneys-at-law, 591. 
 specific, or particular, what, 589. 
 illustrative cases of, 693 to 603. 
 to what goods it attaches, 593, 594. 
 bailee for hire, 593. 
 tradesmen and laborera, 593. 
 farmer, 594. 
 
 livery stable-keeper, 594. 
 tavern-keeper, 594, 595. 
 when goods were stolen or wrong- 
 fully taken, 595. 
 boardiag-housekeeper, 594. 
 upon ships and vessels, 596. 
 for salvage, 596. 
 of finder of astray, 597. 
 
 lost property, generally none, 597. 
 of a manufacturer or mechanic, 593, 
 
 598 to 601. 
 of vendor of goods, 85, 336. 
 waiver of, 330. 
 a mere creditor has no, 601. 
 has where a deposit is made as secu- 
 rity, 601. 
 a person Teceiving property without 
 
 owner's consent has no, 607. 
 rights of holders of, 603, 608, 610. 
 waiver of, 330, 589, 608 to 606, 608. 
 when possession is necessary to create, 
 ■^64,589. 
 
 if parted with lien is lost, 589, 604 to 
 607, 608. 
 extends simply to the possession of the 
 
 property, 589. 
 when it may be soldi, 589. 
 foreclosure of, in justjees' courts, 4 (11). 
 
 proceedings in, 4 (11). 
 when subject to right of stoppage in 
 
 transitu,, 337. 
 discharged by accepting bill or note in 
 
 satisfaction of debt, 474. 
 transfer of, ia what cases and manner, 
 
 605. 
 if holder of, sells property, owner re- 
 mitted to his original righte dis- 
 charged of lien, 608. 
 executors and administratora of holder 
 
 of, stand in his place, 609. 
 damages in action by owner against 
 
 lien-holder, 610. 
 of mortgagees and pledgees, 613 to 619. 
 is destroyed by a tender,618, 1159, 1166. 
 mortgagor cannot create, to mortgagee's 
 
 prejudice, 613. 
 upon the issuing or levy of an execu- 
 tion, 673 to 679. 
 priority of an execution, 676 to 679. 
 
 130 
 
 1033 
 
 LIEN— Continued. 
 
 when levy made, lien relates back to 
 
 the issuing of execution, 675. 
 
 on seizure for tax, distress, &c., 679. 
 
 on attachments after levy or judgment 
 
 894, 1556. ' 
 
 when it ceases or is lost, 894, 896 
 
 1166. ' . . 
 
 of a pledge, by a tender of the 
 amount due, 618, 
 when set-off not permitted against, 1055. 
 goods tendered must-be free from, 1168. 
 
 See PbesonaJj Moetgagb, Pledoe. 
 
 LIGHTS, 
 neighboring owner has the right to ob- 
 struct, 561. 
 
 LIMITATIONS, 
 
 statute of in Revised Statutes, 1095, 1096, 
 i in Code of Procedure, 731 to 743, 
 
 1093. 
 provisions of Code, 733, 1093. 
 when commences to run, 733, 734, 1097, 
 1098. 
 on mutual accounts, 733, 1099. 
 for a penalty or forfeiture, 734. 
 for money paid by an endorsee, 
 740, 1097. 
 by a payee, 740. 
 on judgments and decrees, 741, 
 
 1095, 1096. 
 on sealed instruments, 1096. 
 on constable's bond, 1641. 
 on note payable on demand, after 
 demand, or, on demand with in- 
 terest, 1098. 
 when payable ^t any time within a 
 
 certain time, 1097. 
 when demand is payable on any 
 
 condition, 1098. 
 day demand accrues is excluded, 
 
 1097. 
 in many other special cases. See 
 1097 to 1101. 
 " where injury is consequential, 1100. 
 what is commencement of action to 
 
 save statute, 735 (99). 
 effect upon, of a party being absent from 
 the state, 735, 736, 1101. 
 of return of defendant into the 
 
 state, 735, 736, llOl! 
 temporary absences, not regarded, 
 
 736. 
 of absence of one joint debtor, 737, 
 1101«. 
 one joint and several debtor, 
 1101a. 
 new promise to revive must be in wri- 
 ting, 735 (110), 739, 1096, 1104. 
 requisites of writing and by whom 
 
 subscribed, 735a, 1104. 
 if lost parol evidence may be given 
 of it, 735a. 
 rules and decisions as to payment to re- 
 
1034 
 
 INDEX. 
 
 LIMIT ATIOISrS— Continued. 
 
 Tive debt, 735, 739, 1096, 1103, 1104, 
 1104a. 
 evidence of the payment, 1103, 
 1104a. 
 revival by one joint debtor or partner 
 
 invalid against the other, 738, 1104. 
 acknowledgment will not revive a tort, 
 
 1105. 
 defense of, defeated by showing legal 
 
 aclinowledgment, 1106. 
 debt barred by, cannot be set off, 1074. 
 on demands before the Code, 1093, 1094. 
 does not extinguish debt ; only suspends 
 remedy, 1103. 
 law presiunes debt paid at some in- 
 definite, prior time, 1102. 
 must be pleaded or is waived, 1106. 
 prescription in injuries to real estate, 
 139, 531, 554, 555, 558, 559. 
 
 LIMITED PAETHERSHIP, 
 defined, 187. 
 
 See Paktners abd Pabtstbeship. 
 
 LIQUIDATED ACCOUNT, 
 defined, 1056. 
 
 interest recoverable on, 1523. 
 not on an unliquidated one, 1534. 
 unless agreement or custom or 
 usage gives it, 1534. 
 
 LIQUIDATED DAMAGES, 
 defined, 1506, 1511. 
 rule as to, 1511. 
 
 LIQUORS, 
 in actions for sale of, the burden of 
 
 showing a license is with defendant, 
 
 1343. 
 ale is spirituous, under license law, 
 
 1343. 
 
 LIVERY STABLE KEEPER, 
 lien of, 594. 
 
 LOAK, 
 
 when not usurious, 63, 54. 
 
 I See Usury. 
 
 when, and when not presumed, 831 to 
 
 333. ' 
 judgment upon usurious, when valid, 
 
 65. 
 
 LOAN FOR USE, 
 defined, 100 (3). 
 
 responsibility of the borrower, 103, 104. 
 he may make special agreement for 
 his liability, 102. 
 when he, and when the bailor 
 may recover for expenses in- 
 curred, 104 (8). 
 
 See Bailment, HmiKa. 
 
 LOBBY SERVICES, 
 when recovery may be had for, 37a. 
 agreements to pay for, generally void, 
 37a. 
 note given for, void, 394. 
 
 LOCO PARENTIS, 
 when one standing in, liable for support 
 of members of his family, 343. 
 
 LOSS OF PAPERS, 
 a party may be a witness as to, 403, 
 1383. 
 
 LOST OR DESTROYED INSTRU- 
 MENT, 
 action upon, 400 to 408. 
 statutory provisions concerning, 400, 
 
 1379. 
 evidence of, 1378. 
 
 search must be made for, if lost, 1378. 
 if voluntarily destroyed by party, 1378. 
 available in hands of lona fide holder, 
 
 404. 
 
 LOTTERIES, 
 agreements or bills or notes founded oil, 
 are void, 50, 393. 
 
 LUNACY, 
 defined, 33, 1023. 
 defense of, 1023 to 1038. 
 evidence of, 1035, 1036. 
 See Lunatic, Idiots, DnimKEinrEss. 
 
 LUNATIC, 
 who is, and who is not a, 33, 1033. 
 when their express contracts are void, 
 • 31 to 34, 1023. 
 committee of, theu' powers and duties, 
 
 33, 743, 757. 
 
 is liable for necessaries famished, 34, 
 1034. 
 when for articles purchased, 34. 
 for wrongs committed, 34, 757, 764. 
 prior or subsequent assent to, 
 do not make him liable, 765. 
 not to vindictive damages, 764. 
 actions against generally not permitted, 
 
 34. : 
 
 how brought and defended, 34, 
 743. 
 when execution not to issue against 
 
 property of, 34. 
 degree of care required of, 764, 
 cannot submit to arbitration, 1118 (1). 
 when and when not a competent wit- 
 ness, 1440. 
 justice's decision tliat he is a luna- 
 tic conclusive, 1497. 
 evidence that one is a, 1442, 
 
 M. 
 
 MACHINES, 
 are not tools, and not exempt from exe- 
 cution, 1588. 
 
INDEX. 
 
 1035 
 
 MAmTBNANCE, 
 defined, 45. 
 agreements for, are Toid, 45. 
 
 MAKER, 
 
 of note, effect rff addition of signature 
 of another, after note signed or deliv- 
 ered, 366. 
 
 when demand of payment of, necessary, 
 416. 
 
 tender by, saves interest and costs, 416. 
 
 not liable to drawee or endorser for 
 costs, 417. 
 
 release of, releases subsequent parties, 
 1113. 
 
 See Bills of Exchange, &o. 
 
 MALICIOUS PROSECUTION, 
 actions for, not in justice's jurisdiction, 
 6. 
 
 MANDATE, 
 defined, 100 (2). 
 responsibility of bailee in relation to, 
 
 102, 104 (3, 4, 5), 105. 
 baUee may make special agreement as 
 to bis liability, 103. 
 cannot be compelled to perform a 
 promise to accept, 104. 
 nor to pay damages for refusing 
 to accept, 104. 
 if he accepts, his liability com- 
 mences, 104. 
 
 MANUEACTURER, 
 his lien, 593, 598 to 601. 
 his right to charge interest on his ac- 
 counts, 1534. 
 
 See Lien. 
 
 MANURE, 
 when real and when personal property, 
 
 503,1596. 
 straw raised on the farm, is not, 503. 
 
 MARKETS OVERT, 
 none in this country, 331. 
 
 MARRIAGE, 
 contracts in restraint of, void, 46. 
 in consideration of, void unless in 
 
 writing, 137 (3). 
 ante-nuptial, to support a child, must 
 be in writing, 138. 
 encouraged by the policy of the law, 46. 
 effect of, of an unmarried principal, to 
 
 terminate agency, 173. 
 when presumed from cohabitation, 1038, 
 
 1393. 
 may be proved by hearsay, 1397. 
 when pleadable in bar (formerly abate- 
 ment), 1000, 1001. 
 
 . MARRIED WOMAN, 
 
 rights, powers and liabilities of, 31, 371 
 to 374, 743, 745, 1038 to 1039. 
 
 MARRIED WOMAN— ConfTOMed 
 may be a party to a bill or note given 
 in her business, 371, lOSOa. 
 not given an accommodation note, 
 
 371, lOSOcs. 
 sue on bills or notes owned by her, 
 
 373a, 1030. 
 make contracts in her separate 
 
 business, 371_, 1030a. 
 be party to actions for wrongs, 757, 
 
 764, 765, 1030. " 
 not contract with husband, 1030a. 
 purchase goods for cash or on 
 
 credit, 10-30a. 
 submit to arbitration, 1030a, 1118, 
 
 1119. 
 act by agent, and her husband may 
 
 be such, 153, 1030a. 
 sue for injuries to her servant, and , 
 is liable for his negligence, 1030a. 
 may act as agent or attorney, 158, 919. 
 be agent of husband, 373, 1037. 
 when presumed to be, and when 
 not, 921, 1037. 
 one supposing herself such, but not, 
 cannot recover for her services, 397. 
 husband's liability for her contracts be- 
 fore marriage, 755, 1030a, 1031, 1033. 
 after marriage, 1033 to 1036. 
 for her torts, 1030, 1030a. 
 for her necessaries, 1033 to 1036, 
 1038. 
 effect of notice not to trust her, 
 1034. 
 for penalties incurred by, 1033. 
 need not join husband as plaintiff, 745, 
 763, 936, 1039, 1030, 1030a. 
 appear by next friend, 936. 
 if infant, must appear by guardi9,n, 
 
 937. 
 if she sues with husband, must show 
 
 wife's interest in demand, 745. _ 
 declarations of, when not evidence 
 
 against husband, 1037. 
 admissions of, evidence against her, 
 
 1405. 
 confession of judgment for her debt, 
 
 may be made by, 1544. 
 when one is presumed to be a, 1038. 
 when a man is estopped from de- 
 nying that a woman is his wife, 
 1395. 
 right of, to punish husband's servant or 
 
 apprentice, 500 (note 7). 
 may make gifts to, and receive them 
 
 from her husband, 586, 1030a. 
 when presumed to have authority to ap- 
 pear for her husband in a cause, 921. 
 complaint against, and her hnsband, 
 
 976. 
 husband may give notice not to trust, 
 
 1034. 
 when, and husband witnesses for, and 
 against each other, 1454. 
 
 See Husband. 
 
1086 
 
 INDEX. 
 
 MASTEE AND SERVANT, 
 master, wlieiii liable for servant's pur- 
 chases, 75, 174 to 176a. 
 for servant's support, 243. 
 for servant's labor, though agree- 
 ment not entirely performed, 373 
 to 375. 
 if guilty of misconduct, servant 
 may leave and recover wages, 
 374. 
 for services performed for servant, 
 
 without master's request, 387. 
 for injuries committed by servant, 
 177, 481 to 489a, 631,633,766, 
 1030a. 
 when servant was intoxicated, 
 48^, 684a. 
 for iajuries committed by those 
 necessEtrUy employed by servant, 
 488. 
 may be sued with servant for 
 injuries committed by ser- 
 vant, 485. 
 when not liable to servant for his 
 negligence, or that of fellow ser- 
 vant, 489, 489a. 
 action by, for enticing servant, or 
 harboring him, or injury to him, 
 498, 499, lOSOa. 
 for injuries to apprentiees, 500. 
 may be brought in justices' 
 
 court, 14. 
 may sue for has labor m an 
 implied contract, 303. 
 right of, or of his wife to punish ser- 
 vant, 500, note 7. 
 when not liable for servant's refusal 
 
 to deliver property, 637. 
 when he maypsty wages to his minor 
 
 servant, 303. 
 when he may rescind contract for 
 
 service of servant, 374. 
 may recover of servant for loss by 
 his misconduct, 489. 
 seiTant liable to his master for dam- 
 ages sustained by his misconduct, 
 489. 
 
 may leave master, if he is guilty 
 of misconduct, and recover his 
 wages, 374. 
 
 be sued jointly with master in ac- 
 tions for misconduct, 485. 
 when personally liable for his con- 
 tracts, 170. 
 ma^- recover for work and labor, 
 where contract is unperformed by 
 reason of sickness, 373, 373. 
 or if a minor, 373; 
 not responsible for negligence of those 
 necessarily employed by him, 488. 
 when master liable to, for negligence, 
 
 or that of a co-servant, 489a. 
 degree of skill required of, 683. 
 when actions against, by master, 
 should be on implied contract, 688, 
 when for the wrong, 083. 
 
 MECHANIC'S LIEN, 
 upon article manufactured, 593, 598 to 
 601. 
 
 MEMBER OF CONGRESS, 
 privileged from airest, 879. 
 
 MEMBER OF* LEGISLATURE, 
 privileged from^ arrest, 879. 
 may, or may not, act as justice, 0. 
 
 MEMORANDUM, 
 when and how witness may use a, 1355, 
 
 1474. 
 under statute of frauds. 
 
 See Fbauds, Statute 01"; Note ob 
 
 MEMOEANDtnyt. 
 
 MENAGERIE, 
 owner of, to give notice of its approach, 
 495a. 
 
 MERCHANT, 
 when he may cliaiFge interest on open 
 accounts, 1534. 
 
 MERGER, 
 of prior negotiations by execution of 
 
 contract, 109a. 
 Of a security in one of higher order, and 
 
 illustrative cases, 1043. 
 of partnership debt, by bond of one 
 
 partner, 10^. 
 of note, by new one with new sureties, 
 
 1043. 
 of a debt, by a judgment, 1043, 1086. 
 I by judgment against part of joint 
 
 debtors, 1086. 
 none, if new security taken as collateral, 
 1043. 
 
 MILITLA, 
 when privileged from arrest, 879. (See 
 Laws of 1870, chap. 80, § 357.) 
 
 MILK POT, ' 
 
 whep exempt from execution, 1586. 
 
 MILL DAM, 
 
 See Dams. 
 
 MILL SAW, 
 not exempt, as a tool, from execution, 
 
 1588. 
 
 MINERAL "WATER BOTTLES, 
 search warrants for, 668a. 
 
 MINISTERS, 
 foreign, privileged from arrest, 879. 
 
 MINOR, 
 
 See Infant. 
 
 MISDEMEANORS, 
 certain mny bo coraiiroiiiised, 89. 
 
EsTDEX. 
 
 1037 
 
 MISJOINDER, 
 of parties, when a defense to an action, 
 754, 760, 772. 
 ( 'y of causes of action, not error if no obj ec- 
 tion is made, 773, 945a. 
 
 MISNOMER, 
 formerly pleadable in abatement, now 
 in bar, 996, 1003. 
 
 MISREPRESENTATION, 
 when a fraud, 76, 78. 
 must be of a fact, not as to the law, 78. 
 when made inadvertently, or utterer 
 supposed it true, 78, 264 (2), 681. 
 
 See Fraud. 
 
 MISTAKE, 
 
 action for money paid by, 307 (2, 5), 809. 
 made by arbitrators not relievable in 
 
 justices' courts, 1121. 
 
 promise to correct it, void, 1134. 
 in entering verdict, amendable, 1663. 
 action lies fox property taken or detained 
 
 by, without wrongful intention, 565. 
 of fact, what is, 307 (2). 
 of law, what is, 307 (2). 
 
 MONEY, 
 what may be made a tender, 1164 to 
 
 1166. ,■ . ^ 
 
 may be levied on by execution and re- 
 turned as so much collected, 1592 (18). 
 bank bills, may be levied on and 
 sold, 1592 (19.) 
 had and received for plaintiff, action 
 for, 305 to 317. 
 cases where contract to pay is im- 
 plied, on its receipt by agents, at- 
 torneys, officers, &c., 306 to. 309. 
 in case of mistake or deceit, 309. 
 . where consideration fails, 310. 
 upon a rescinded agreement, 
 
 311. 
 where received under void au- 
 thority, 312. 
 received by extortion, imposi- 
 tion, &c., 313. 
 by embezzlement, theft or 
 
 cheating at play, 314. 
 upon a judgment or decree af- 
 terward reversed for error, 
 815. 
 upon a contract void in law, 316. 
 non-negotiable note is evidence of, 
 
 359. 
 when negotiable bill or note is evi- 
 dence of, 477. 
 lies for property received as money, 
 or when its sale may be pre- 
 sumed, 30.7. 
 wrongfully taken andi sold, 306. 
 interest recoverable in actions for, 
 
 1522. 
 against one who has fraudulently 
 received plaintiff's money, 330. 
 
 M.ON'BY— Continued. 
 lent to defendant, action for, 881 to 334. 
 mu3t be an actual loan of money, 
 
 or its equivalent, 381. 
 due-bill, or I. O. XJ., evidence of, 383. 
 
 also lost note, 333. 
 when bill or note is evidence of, 477. 
 as to loan of public stocks, 331. 
 must be to defendant, or to some 
 
 one at his request, 331. 
 not inferred merely from delivery 
 
 of money, 381. 
 presumption when parent advances 
 
 money to a child, 831. 
 when a loan is, and is not pre- 
 sumed, 331, 883. 
 when secured by a pledge, may be 
 recovered, 833. 
 by a mortgage, no implied cov- 
 enant to pay in absence of 
 agreement, 333. 
 for an illegal purpose cannot be re- 
 covered, 333«. 
 mere knowledge of purpose in- 
 sufficient; must be part of 
 contract that it shall be so 
 used, 333a. 
 interest is recoverable in actions 
 for, 152;;. 
 paid for defendant, action for, 317 to 331. 
 when it lies, 317, 330. 
 must be money or its equivalent 
 expended for defendant at his re- 
 quest, express or implied, 317, 
 319, 330. 
 illustrative cases, 830. 
 giving bond by surety not 
 enough, 819. 
 nor exchange of notes, 823. 
 nor imprisonment in exe- 
 cution, 819. 
 his promissory note is 
 
 enough, 819. 
 conveyance of land is 
 enough, 319. 
 amount of recovery for, 318, 819. 
 interest is recoverable on, 818. 
 as between co-siu-eties, 334. 
 by one's surety, 317 to 323, 834. 
 by endorsee on judement against 
 bun, '332. 
 not in joint action against sep- 
 arate endorsers, 332. 
 prior endorsers cannot recover 
 against subsequent ones, 332, 
 foreign coin is money, 331. 
 endorsee may sue for, as often as he 
 
 makes payments, 332. 
 on contract under the statute of frauds, 
 where the other party is in default, 333. 
 party in default cannot recover for 
 money he has paid, 833. 
 by a joint debtor, 334 to 327. 
 not where the claim is for a tort, 324. 
 in cases of negligence of their ser- 
 vants, 324. 
 
1038 
 
 INDEX. 
 
 MOWE.Y— Continued. 
 
 on a merely equitable claim, 325. 
 where third person has paid the 
 money at the request of one joint 
 debtor, or that. of their agent, 325. 
 ■when one agent is imposed upon 
 cannot recover against his co- 
 agent, 325. 
 paid on an award where he alone con- 
 sented to submit to, 826. 
 to defendant, under a mistake of facts, 
 
 327. 
 for necessaries furnished one whom de- 
 fendant is obliged to maintain, 328. 
 not a defense that defendant lost the 
 
 benefit of the payment, 329. 
 not recoverable when on an illegal 
 transaction, 830. 
 mere knowledge not enough ; must 
 be intended to be so used, 330. 
 against one who has fraudulently re- 
 ceived plaintiff's money, 330. 
 who has prevented plaintiff from 
 accomplishing the object for 
 which he has expended his 
 money, 880a. 
 by drawee against drawer of bUl, 409. 
 
 acceptor against drawer, 418. 
 not by officer against defendant in exe- 
 cution for money paid by liim for de- 
 fendant's escape, 694. 
 statute of limitations in suits, by endor- 
 see or payee, 740, 1097. 
 see also supra, " had and received." 
 
 MONTH, 
 
 in computing time on a bill or note, is 
 a calendar month, 428. 
 
 in computation of interest, how con- 
 sidered, 1526. 
 
 See Time. 
 
 MORAL OBLIGATIOBT, 
 when a sufScient consideration for a 
 promise, 25, 115, 133. 
 
 MORTGAGE, 
 does not imply a personal debt, 333. 
 of real property, tender upon destroys 
 
 lien, but not the debt, 1166. 
 of personal property, 
 
 See Pebsonal Mohtgagb. 
 
 MORTGAGEES, 
 rights of, 613 to 616. 
 lona fide &nd. before actual levy, hold, 
 675. 
 
 See Pbksonal Moetsage. 
 
 MORTGAGOR, 
 cannot pledge goods or impose lien on 
 mortgaged property to prejudice of 
 mortgagee, 613. 
 
 See Pebsonal Mobtgagb. 
 
 MOTHER, 
 when liable for child's support, 243, 304 
 
 See Paeknt and Child. 
 
 MUTUAL ACCOUNTS, 
 
 See AccoTOTTS.' 
 
 MUTUAL PROMISES, 
 when they are a good consideration for 
 agreements, 29, 113, 114. 
 for an accord, 1143. 
 
 N. 
 
 NAMES, 
 of parties, rules in relation to, 1009. 
 two, varying in sound, &c., are different, 
 
 1009. 
 one may be sued by the name he used 
 
 in dealing with the plaintiff, 1009. 
 junior is no part of, except there is father 
 , and son, 1009. 
 misnomer of, pleadable in abatement 
 
 (now in bar), 996, 1003. 
 
 NAVIGABLE STREAMS, 
 obstruction of, a nuisance, 556. 
 
 NECESSARIES, 
 
 idiots and lunatics liable for, upon im- 
 plied contract, 34. 
 
 infants liable for, 743, 1030. 
 may make agreements for, but not to 
 fix the price, 1020. , 
 
 where live with parents or guardian, 
 1030. 
 
 what are, and illustrative cases, 1020. 
 
 parent and guardian in general not lia- 
 ble for, when purchased by infant, 
 1020. 
 
 husband, parent and master liable for, 
 243, 1033 to 1036. 
 
 one is liable for, who lives with woman 
 not his wife, 1038. 
 
 fimished a bastard, 344. 
 
 NEGLECT, 
 degrees of, defined, 101. 
 private stealth is presumptive evidence 
 
 of ordinary, 103. 
 gross, when one cannot contract against, 
 
 106a. 
 - responsibility of bailees for, 103 to 106a. 
 is a question of fact, 107. 
 master liable for injury by his servant's, 
 
 481 to 495, 631, 633, 766. 
 
 See Negligence. 
 
 NEGLIGENCE, 
 actions for, generally, 481 to 495, 631 to 
 
 637, 766. 
 
 are in justice's jurisdiction, 7, 481. 
 
 lies, though the injury was slight, 483. 
 assault and batteiy are not, 7, 481. 
 
INDEX. 
 
 1039 
 
 NEGLIGENCE- a»iiJ«.««<Z. 
 where the injured, party contributed to 
 
 the, 483, 524, ^33, 635, 
 may be by the defendant, or his servant, 
 or by a corporation, 481 to 495, 631, 
 633,766,1030a. 
 
 wjbiere plaintiff is an infant, degree of 
 care required, 483, 634. 
 or lame, sick, aged or a woman, 
 483, 634. 
 plaintiif must show, 484. 
 
 when presumption of, is raised, 484. 
 where servant was intoxicated, 485, 
 
 634a. 
 where, is by those necessarily employed 
 by servant, 488. 
 
 servant not responsible for their neg- 
 ligence, 488. 
 when master and sei-vant liable to each 
 ■other for, 489, 489a. 
 master liable to servant for negligence 
 of a co-servant, 489a. 
 in passing and repassing and traveling 
 
 on the highway, 490 to 493. 
 with no intention to injure, but in viola- 
 tion of law, 493. 
 placing obstructions in highways, 493. 
 iu keeping and care of animals, 494 to 
 497. 
 
 See AuiMALS. 
 
 injuries by, to one's wife, child or ser- 
 vant, 498. 
 
 where buildings burned were erected iu 
 an exposed situation, 524. 
 
 or delay in forwarding property, not a 
 conversion, 625. ' 
 to dehver may be a conversion, 635. 
 
 liability of turnpike and railroad com- 
 panies for, 105, 634, 634a. 
 degree of care to be used by them, 
 482, 634. 
 
 in use of canal boats and other vessels, 
 635. 
 
 in the use of one's property, so that 
 neighbor is injured, 636. 
 
 oflBcial, whether justice has jmisdiction 
 of, 680. 
 
 when public officers liable for, 684. 
 
 in an attorney, agent, physician, &c., 683. 
 
 of married woman's servant, she is 
 liable for, 1030a. 
 
 one tenant in common or joint tenant 
 not liable for, to tjie other, 620. 
 
 complaint for, what to aver, 969, p. 518. 
 
 when statute of limitations begins to 
 nm against attorneys, 1100. 
 
 question is one of fact, 107. 
 
 See Neglect. 
 
 NEGOTIABLE PAPER, 
 title to stolen, 331. 
 
 demand of acceptance and payment 
 and notice of dishonor necessary only 
 on, 445a. 
 See Bills of Bxchakgb, &c. 
 
 NEGLIGENT ESCAPE, 
 what is a, 691. 
 liability of officer for, 684. 
 
 NEW TRIAL, 
 justice cannot order, 1535. 
 in the appellate court, 1650 (352, 366). 
 ordered by the coimty court, 1650 (366). 
 
 NEXT FRIEND, 
 
 See GuAKDLiN. 
 
 NON-JOINDER, 
 of parties, how taken advantage of, 753, 
 759, 773. 
 
 NON-RESIDENTS, 
 
 where suits by and against to be brought, 
 3, 782. 
 
 defined, under law relative to attach- 
 ments, 842. 
 
 what are their " last places of resi- 
 dence," under that law, 899. 
 
 NONSUIT, 
 when judgment of, may be rendered, 
 70, 905, 1153, 1271 to 1375, 1314, 1547. 
 shall not be rendered, 906, 907, 936, 
 940, 1364, 1365, 1388. 
 judgment of, rendered, when demand 
 was brought for prosecution and 
 plaintiff does not appear for exami- 
 nation, 70. 
 
 if plaintiff fails to appear, on return 
 of process, or on adjournment, 905, 
 1271, 1314, 1547. 
 
 when failure may be excused, 906, 
 907. 
 may be rendered after payment of 
 
 money into court, 1158. 
 if plaintiff discontinue or withdraws, 
 
 1371, 1547. 
 if plaintiff is nonsuited on the trial, 
 
 1371, 1547. 
 if plaintiff does not appear on commg 
 
 in of jury, 1271, 1314, 1547. 
 if plaintiff elects to submit to, 1373, 
 
 1814. * 
 if the evidence is insufficient, 1273. 
 
 rule in such cases, 1373. 
 to be entered forthwith, with costs, 
 1274, 1553. 
 
 amount of costs, 1274. 
 if no costs, no appeal lies, 1565. 
 cannot be granted by justice after 
 cause is submitted to jury, 1314. 
 judgment of, not to be rendered unless 
 defendant appears, oir his appearance 
 is waived, 940. _ , .,, , 
 
 not because process issued without 
 guardian for infant plaintiff, unless 
 pleaded in answer, 926. 
 not because of justice's relationship 
 
 cause should be dismissed, 1364. 
 not because venire not returned, 1388. 
 plaintiff must submit to, before verdict 
 
1040 
 
 INDEX. 
 
 NONSUIT— Cb7rf»M««d 
 
 or cause is submitted to jtistice, 1365, 
 
 1314. 
 
 if afterward judgment is a bar though 
 called a nonsuit, 1365. 
 if motion for, improperly denied, the 
 
 error is cured if tiie defect is afterward 
 
 supplied, 1373. 
 should be granted only in plain cases, 
 
 1373. 
 cannot be prevented by defendant by 
 
 his waiving costs, 1§73. 
 judgment of, is not a bar to another 
 
 action, 1084, 1549. 
 
 is a bar when rendered after submis- 
 sion of cause, 1365. 
 
 NOTARY PUBLIC, 
 may present bills or notes for acceptance 
 and payment, and protest for dis- 
 honor, 433. 
 he may give a certificate thereof, or 
 
 besworn as a witness, 433. 
 cannot delegate his authority to an- 
 other, 433. 
 need not make presentment, &g. ; any 
 one else may, ^9. 
 
 NOTE OR MEMORANDUM, 
 under statute of frauds, 90, 91, 137a. , 
 what it must state, 90, 137ai. 
 must embrace the whole agreement, 
 
 90. 
 by whom signed, and where and how, 
 
 90,91,137a. 
 may be by an auctioneer, and when, 91. 
 
 See Fraitds, Statute of. 
 
 NOTBi 
 promissQry, 
 
 Bee Bills of Exchan&e, &c. 
 
 NOTICE, 
 
 to plaintiff to attend as a witness, in 
 case of demand brought for prosecu- 
 tion, 71. 
 time of, how computed, 71. 
 
 to agent, when notice to principal, 159. 
 
 to terminate lease, 339. 
 
 of presentation and non-payment of bill 
 or note, 410 to 416, 431 to 435i 439 to 
 448. 
 
 See Bills of Exchajtgb; &c. 
 
 to remove nuisance, when necessary 
 
 before action, 497. 
 of revocation of license, 507. 
 under statute relative to division fences, 
 
 537, 539. 
 to be given by innkeeper of his having 
 
 provided a safe, and of his charges, 
 
 &c.,595. 
 of sale of pledged property, 618. 
 certain, may be drawn by justice and 
 . charged for, 833. 
 
 NOTICE— Ob»fwM«(f. 
 to be given by constable of defendant's 
 
 arrest on warrant, 874. 
 in defendant's answer of his defense, 945. 
 of resale, where vendor does not accept 
 
 and pay for goods, 963u(. 
 to be given by parenii, or payment to 
 
 minor for hfe wages is good, 1031. 
 may be given by a husband not to trust 
 
 his wife, 1034. 
 of time and place of hearing of arbitra- 
 tion, 1137. 
 none necessary of when award is to 
 be made, 1137. 
 of application for a commission, 1348 to 
 1351. 
 for a venire, when necessary, 1383. 
 to produce papers, in order to admit 
 parol evidence of their contents, 1380 
 to 1383. 
 its form and contents, 1380. 
 need be ^ven taut once in the ac- 
 tion, 1381. 
 not necessary where the party 
 knows it will be in question, 1383. 
 proof of service of, 1383. 
 at what time to be given^ 1383a. 
 of sale on execution. 
 
 See Execution. 
 
 NUISANCE, 
 remedy for injuries sustained from, 497, 
 
 497a, 556. 
 who liable for, 497, 497a. - 
 right to sue for, or to abate not barred 
 
 by time, 555, 557. 
 in order to furnish right of a;ction, it 
 must be a private one, 556. 
 or the plaintiff sustain special dam- 
 age, 556. 
 obstructions of highways and navigable 
 streams are, 556. 
 statute relative to highways, does 
 not affect the right to abate, 567. 
 when authorized by the legislature, 556. 
 cannot be a public nuisance ; may be 
 private, 555, 556. 
 acts calculated to breed a pestilence are, 
 
 557: 
 any one may abate a public, 557. 
 abatement of, does not affect right to 
 
 damages therefor, 557. 
 when notice to remove necessary before 
 commencing action, 497. 
 
 NURSERY, 
 when growing trees and plants in, are 
 real, and when personal property, 503 ; 
 see 1596. 
 
 o. 
 
 OATH, 
 
 how administered for an affidavit, 803, 
 
 837. 
 
INDEX. 
 
 1041 
 
 OATH— Confomied 
 necessity for in applications for adjoum- 
 ment, 1205, 1306 to 1308,1310,1311, 
 1315,1318. 
 on applications for a commission, 
 1348, 1350. 
 on challenge of a juror, 1399. 
 to triers upon a challenge, 1301, 1303. 
 jurors, 1305. 
 ■witnesses, 1306. 
 interpreters, 1468. 
 
 constable on retiring with a iury, 
 - 1315. 
 
 may be waived, and effect of, 
 1315, 1317. 
 statutory form need not be literally fol- 
 lowed, 1316. 
 provisions concerning manner of 
 administering, 1444. 
 any form elected by the witness is bind- 
 ing, 1445. I 
 manner of determining the form to be 
 
 administered, 1446. 
 where it is administered on some secu- 
 lar book by mistake, 1445. 
 to prove the necessity of admitting sec- 
 ondary evidence, 1384. 
 
 OBJECTION TO ILLEGAL EVI- 
 DENCE, 
 how and when made, 1491. 
 when it is admissible for some pur- 
 poses or against some parties, 1491. 
 
 OBLIGATIONS, 
 
 colore officii, void, 45a. 
 
 OBLIGEE, 
 who is a, 716. 
 
 OBLIGOR, 
 who is a, 716. 
 liability of, on adjournment bond, 1325. 
 
 OFFER, 
 defendant may make, for judgment, 
 945 (15), 1148, and in note 3. 
 proceedings and practice thereon, 
 945 (15). 
 
 Bee Tender. 
 
 of evidence, when it should show its 
 ' materiality, 1491. 
 
 admissible for some purposes, or 
 against some parties, how made, 
 1491. 
 containing any matter not legal, 
 whole may be rejected, 1491. 
 
 OFFICER, 
 
 bonds, colore officii taken by, are void, 
 
 45a. 
 agreement by, to neglect his duty, is 
 
 void, 49. 
 liability of, as bailee of goods taken 
 
 under h[:fO, process, 104 (11). 
 
 101 
 
 OFFICER— CfanKmetZ. 
 who to act when powers conferred on 
 
 several, 155. 
 may make certain contracts, 330. 
 how to be named as party in suits 
 
 against him, 230, 746. 
 may sue for his fees, and whom to sue. 
 394. ' 
 
 liable for moneys had and received. 
 
 307 (6). 
 implied license toj to enter on lands to 
 
 serve process, 513. 
 may maintain actions for goods, or in- 
 jury to goods levied on, 568, 573, 573. 
 evidence m actions by or against, 568, 
 
 573,573,658. 
 deputy cannot sue in his own name, 
 
 573. 
 may take receipt for property levied on, 
 575. 
 receiptor is officer's agent or ser- 
 vant, 575. 
 is liable for an unlawful levy, 625, 659. 
 not if he levies on the property 
 
 described in the writ, 635. 
 where ^e acts without jurisdiction, 
 , 653,655,656,659,667. 
 where he levies on stranger's goods 
 
 mixed with the defendant's, 659. 
 for exceeding his authority, 070, 671. 
 for levying on goods of a third per- 
 son, 671. 
 for neglect of duty, 684. 
 protected by process regular on its 
 , face, 653. 
 
 ministerial, when protected by his pro- 
 cess, 658, 664, 666, 1637. 
 even when he Imows its invalidity, 
 658. ■« 
 is not bound, in such case, to 
 serve it, 658. 
 not protected when the defect ap- 
 pears on its face, 658, 666, 667. 
 is bound to serve process when 
 there is only irregularity in it, 
 not affecting the jurisdiction, 
 658. 
 rights of, on executing a search 
 warrant, 669. 
 judicial, not liable, for en-ors of law, 
 660, 663, 697. 
 whether for misconduct and cor- 
 ruption, 697. 
 when liable for false information, 
 
 698. 
 not for acts in the scope of his 
 
 duty, 698. 
 rule where jurisdiction depends on 
 facts he is bound to ascertain and 
 settle, 661, 663. 
 acts of, void for irregularity, 663 to 669. 
 is bound to know whether process is 
 issued by one having jurisdiction, 
 667. 
 may demand assistance in serving pro- 
 cess, 672. 
 
1042 
 
 INDEX. 
 
 OFFICER— C(W*areM«(f. 
 
 rules relative to, 673^ 
 
 to overcome resistance, and upon 
 whom he may call, 886. 
 cannot levy nor sell on execution after 
 
 return day, 675, 1615. 
 negligence of, whether action for, in 
 
 justice's jurisdiction, 680. 
 liable for false return of process, 684, 
 
 695, 696. 
 
 proof by, in action for return of no 
 goods, 696. 
 arrest by, and how made, 685. 
 powers of, in serving process, 686 to 691. 
 regular, need not show his process, 686. 
 right of, to enter dwelling to serve pro- 
 cess or to malse arrest, 687 to 691, 871, 
 
 881, 882. 
 liable for abuse of process, 684, 1188. 
 
 for a voluntary escape, 684, 692. 
 defense in such an action, 692, 698a. 
 damages, 693. 
 
 cannot recover of defendant money 
 paid for, 694. 
 may retake prisoner after a negligent 
 
 escape, 691, 883. 
 justice liable if affidavit for warrant 
 
 defective, 804. 
 return of, of service of process, when it 
 
 may be contradicted, 866, 867. 
 of legislature, militia, canals, and of 
 
 courts, privileged from arrest, 879. 
 
 not liable for arrest of a privileged 
 person, imless he acts maliciously, 
 884. 
 need not be actualljr present at an arrest, 
 
 if he is in good faith engaged in it, 883. 
 how to confine one arrested, 885. 
 when statute of limitations begins to run 
 
 in favor of, for omission of duty, 1097. 
 
 in actions against constable, 1641. 
 pleading by, in actions against, 1187, 
 
 1189. 
 return of, prima fade evidence, even 
 
 against third persons, 1284. 
 when the regularity of olHcial acts of, 
 
 presumed, 1844, 1387 to 1390. 
 
 in case of inferior judicial, 1389. 
 reputation and ofHcial acts of, prima 
 
 fade evidence of official character, 
 
 1378, 1386. 
 damages against, in action for not re- 
 turning execution, 1615. 
 
 when msolvency a defense, 1515. , 
 
 in action by, for property levied on, 
 1515. 
 
 interest, when recoverable, 1522. 
 may bring action against defendant for 
 
 removing his goods to another county 
 
 after issuing of execution, 1608. 
 liable if he sells on junior execution, 
 
 1623. 
 cannot purchase on sales by him on exe- 
 cution, 1617. 
 See Constable, Sheriff, Action, Luii- 
 
 TATIONS. 
 
 OFFICES, 
 agreements for buying and selling, void 
 46, 394, 395. 
 
 OFFICIAL CERTIFICATES, 
 when evidence, 1358. 
 
 OFFICIAL RETURN, 
 a ministerial act, 697. 
 officer liable for neglect in relation to, 
 
 697. 
 
 when for imperfect information, 698. 
 
 liable for false return, 684, 695, 696. 
 effect of, as evidence, 866, 867, 1284. 
 
 OMISSION OF DUTY, 
 when statute of limitations begins to 
 run in case^ of, 1097. 
 
 OPEN ACCOUNTS, 
 
 when interest recoverable on, 1534. 
 
 OPINION, 
 
 of a witness, what it is, and when it 
 may be given, 1475, 1476^ 
 
 See EviDBNCE, Witness, &c. 
 
 ORDINARY DILIGENCE, 
 defined, 165. 
 
 ORDINARY NEGLECT, 
 
 See Neglect. 
 
 ORIGINAL JURISDICTION, 
 defined, 648, 649. 
 
 OVERSEERS OF THE POOR, 
 when liable for services performed for 
 the poor, 388. 
 
 OWNER, 
 of pereonal property, who is, 664. 
 general property in it, is in him, 564. 
 possession presumed to attach to his 
 title, 564, 570. 
 absolute, or special, or qualified only to 
 
 sue for property, 564, 568, 570, 572. 
 evidence by or against purchaser on ex- 
 ecution, 574. 
 qualified, in suit by, when title in third 
 
 person can be shown, 571. 
 evidence in actions by or against, 571 to 
 
 574. 
 when he loses title, by suing for price, 
 683. 
 or by recoveriug satisfaction for 
 goods, 583. 
 may sell goods in hands of a third per- 
 son, before their conversion, 628. 
 his rights to use his property, 636. 
 of animals : 
 
 care to be used by him, 494. 
 
 liable if he knew they were vicious, 
 
 494, 495. - 
 to give notice of approach of wild, 
 496a. 
 
INDEX. 
 
 OWMiR—ConUnued. 
 
 liable for injuries by tbem on lands 
 of others, 536, 533, 535 to 543. 
 not if they escape through the 
 other's defeetive fence, 536, 
 537 (44), 537a, 534, 539. 
 cannot pasture them ia the high- 
 way, 588. 
 flsh in a private pond, may sue for 
 . fishing therein, 545, 546, 546a. 
 may be, of cats, dogs, oysters, an'd wild 
 animals, 563, 638. 
 sue for injuries to them, 638. 
 of dog, who is, to be liable for injuries 
 
 committed by it, 643. 
 of real property : 
 has a right to use it in its natural 
 state, and protected by adjacent 
 soil, 535. 
 what the owner of adjacent land may 
 
 do with his, 535. 
 when landlord liable to adjacent own- 
 er for neglect to repair, 535. 
 rules as to division fences, 537 to 533. 
 rights of, in water running through 
 his land, 549 to 561. 
 rule as to surface water, 554. 
 may fill up wet places on his own 
 
 land, 554. 
 use of water for twenty yeais; implies 
 
 a grant, 554, 559. 
 rights of in a spring on adjacent land, 
 
 558. 
 may cut off underground current or 
 
 spring, 558a. 
 must so use it so as not to mjure his 
 
 neighbor, 636. 
 may obstruct his neighbor's lights, 
 561. 
 
 OYSTERS, 
 law for preservation of, 546a. 
 one may have property in, 563. 
 
 PARDON, 
 restores competency as a witness, to a 
 felon, 1447. 
 
 PARENT, 
 when father liable for the support of 
 his child, 243, 1030. 
 or of those who are members of his 
 
 family, 348. 
 liable for services performed for his 
 
 chUd, 387. 
 liable for support of bastard child, 
 244, 303. 
 compelled to support pauper child, 304. 
 child to support pauper parent, 304. 
 no implied agreement binding him 
 to do so, 304, 
 entitled to the services of his child, 302. 
 when payment to child therefor is 
 good, 303, 1031. 
 
 1043 
 
 PARENT— OmJOTwd 
 
 may bring actions for injuries to, or en- 
 ticmg child away, 498, 499, 500. 
 
 right or, to inflict corporal punishment 
 on child, 500, note 7. 
 
 may make gift to infant child, 586. 
 power of revocation of, 586. 
 
 when he sells child's property and re- 
 ceives other property for it, 1017. 
 
 not liable, in general, for necessaries 
 purchased by child, 1030. 
 
 may authorize minor child to receive 
 his wages, 1031. 
 
 PAROL ACCEPTANCE, 
 of a bill, invalid, 353. 
 
 PAROL AGREEMENT, 
 See Contract. 
 
 PAROL EVIDENCE, 
 to prove usury in written contract, 58. 
 to show a verbal condition in a subscrip- 
 tion, 136. 
 of agent's authority, 154. 
 when, to show a warranty where there 
 
 is a writing, 363. 
 not admissible to modify or alter a writ- 
 ten agreement, or its legal effect, 365, 
 420, 1039, 1420. 
 is admissible, when writing operates 
 as a fraud upon third parties, 
 1430. 
 to prove fraud, though contract in writ- 
 ing, 645. 
 of a written promise, which is lost, of a 
 renewal of a debt under statute of 
 limitations, 735a. 
 of lost or destroyed papers; 
 
 See Lost, &c., Insteitmbnt. 
 
 Evidence, Contbaot. 
 
 PARTICULARS, 
 of demand, how obtained, 944 (14). 
 when may be required on application 
 for adjournment, 1304 (79), 1322. 
 
 PARTIES TO ACTIONS, 
 on contract, 743 to 757. 
 all persons interested should sue and 
 
 be sued, 7^5, 747. 
 infants, married women, lunatics, &c., 
 
 743. 
 consignees, holders of bills of lading, 
 
 carrier, banks, 743a. 
 assignees, 743a. 
 assignee of one partner and the other 
 
 partner, 744. ' 
 
 husband and wife, 745. 
 corporations, 746. 
 
 certain town and county ofiicers, 330, 
 746. 
 . dormant partners, 185, 747, 790. 
 non-resident joint debtors, 747. 
 / survivors of joint debtors, 748, 749. 
 
1044 
 
 INDEX. 
 
 PAETIKS TO ACTIOT^S—Oontinued. 
 where the party in default is dead, 750. 
 
 not in justice's jurisdiction, 750. 
 when by one partner against the rest 
 
 of the firm, SIO, 479, 751. 
 where contract is joint and several, 
 753, 756. 
 joint, 753, 756. 
 too many defendants, 754, 773. 
 husband and wife, 755, 1033. ^ 
 parties to a note or obligation, 448, 
 
 450, 756, 771J. 
 when principal and surety can be 
 joined as defendants, 756. 
 constable and his surety, 771J. 
 one cannot be plaintiff and defendant 
 in the same suit, 767as. 
 religious society cannot sue a trus- 
 tee, 767a. 
 agent cannot sue in his own name on 
 
 commercial paper, 399. 
 plaintiff in action on constable's bond, 
 
 1643. 
 fbr wrongs, 706, 707, 757 to 767a. 
 aU persons may be, and corporations, 
 
 757, 764. 
 in general, by person whose legal 
 interest is affected, 758. 
 when by infant, and when by guard- 
 ian, 758. 
 officer, not by a deputy, 758. 
 bailee, 758. 
 
 by joint owners, 759, 773. 
 misjoinder of, 760, 765, 767, 773. 
 when by personal representatives of 
 deceased, 763. 
 against them, not in justice's 
 jurisdiction, 763. 
 by survivors, 761. 
 to property of married woman, 768. 
 all persons contributing to are liable 
 as principals, 764, 765. 
 when infants, married women, luna- 
 tics, &c., are and are not liable, 
 764, 765. I 
 
 rule as to subsequent ratiflcation or 
 
 assent to, 765. 
 one indemnifying offlcw: liable, 765. 
 when party or his attorney liable, 
 670, 671, 765. 
 
 guUt of a co-trespasser affects the 
 others, 765. 
 master liable for servant's, 766. 
 client for attorney's, 766. 
 principal for sub-agent's, 766. 
 corporation for its agent s, 766. 
 against joint wrong-doers, 765, 767, 
 773. 
 what causes of action for may be 
 assigned, 743a. 
 appearance of, 905 to 963. 
 
 See Appear A KCE, IrwANTS, Luna- 
 tics, &c. 
 
 tbcuch ■ '■ iiK* ' ■. ;i 'vu'ly cannot exe- 
 . i-« I'll I'xeciitinn, 1569. 
 
 PARTIES TO ACTIONS— C<mtoM«(f. 
 when competent as witnesses, 1449, 1451 
 to 1454. 
 
 if called by opposite party, may be 
 contradicted, 1451 (393), 1453, 1486. 
 may be impeached, 1484. 
 not when called by opposite 
 party, 1484. 
 
 PARTITION FENCES, 
 rules concerning, 537 to 539. 
 when determined by prescription, 531. 
 defective, defense to action for injuries 
 by cattle, 536, 527 (44), 537a, 534, 539. 
 
 See Animals, Fences. 
 
 PARTNERS AND PARTNERSHIP, 
 
 what are, 178, 179, 181. 
 
 what are not, 179, 183, 183. 
 general and special, defined, 184. 
 dissolution of, terminates agency, 173. 
 contracts in scope of the partnership 
 
 are binding, 177. 
 when such as to third persons, though 
 
 not so in fact, 178 to 181. 
 manner in which partners may con- 
 
 Ixibute to the business, 181, 183. 
 a community of profit and loss essen- 
 tial, 181 to 184. 
 presiihiption, in absence of proof, is 
 that partners share profit and loss 
 , equally, 181. 
 
 working form on shares does not con- 
 stitute relationship of, 188. 
 liable for negligence of a copartner, 
 177. , 
 of servants, 177. 
 each liable for aU the debts of the firm, 
 186, 194, 195. 
 even though creditor did not know 
 
 of the firm, 194. 
 when liability may be terminated, 
 186. 
 how long relationship of, continues, 184. 
 liability of infant partner, 186. 
 dormant partners, who are, 185. 
 their liability, 185. 
 
 no notice necessary of their retire- 
 ments from the firm, 195. 
 parties in actions by or against, 185, 
 747, 790. 
 actions by and against,whether brought 
 in individual names, or firm name, 
 790, 1009. 
 limited and special partnership, how 
 formed under the statute, 187 to 193. 
 liability of partner, if statute is not 
 ' followed, 187, 191. 
 how business to be conducted, 187. 
 to what it cannot extend, 187, 188. 
 company name and sign, 187. 
 creditor must see that limited part- 
 ner does not exceed his powers, 
 305. 
 suits against, and pLiintiff's plead- 
 ings, 188. 
 
INDEX. 
 
 1045 
 
 PARTNERS, &c— Continued. 
 
 liability of special partners, 184, 
 , 188, 191, 305. 
 their rights and authority, 189, 190. 
 cannot assign firm property in con- 
 templation of insolvency, 189. 
 his interest cannot be levied on 
 
 execution against him, 189. 
 actions brought by and against 
 ^ general partners only, 190. 
 general, all liable for the debts of the 
 
 firm, 186, 194 to 309. 
 consisting of seven or more parties, how 
 
 sued, 193. 
 certain associations to file a certificate, 
 
 192a5. 
 powers and liabilities of, 193 to 209. 
 either, or a surviving partner, may dis- 
 pose of the partnership property, 193. 
 may sell, assign, or mortgage as- 
 sets to pay debts, 193, 198, 613. 
 may sell his interest to his copart- 
 ner, 193. 
 rule where partnership insol- 
 vent, 193. 
 whether one can make a general 
 assignment for the benefit of 
 creditors, 193. 
 when may contract in the firm 
 name, and instances of, 196, 197, 
 203. 
 partners' acts, in partnership trans- 
 actions, the acts of all, 199. 
 though done for his own ad- 
 vantage, and illustrative 
 cases, 199. 
 accommodation endorsement in firm 
 
 name, by one partner, invalid, 304. 
 liability of retiring partner for future 
 debts, 195. / 
 how it may be avoided, 195. 
 new partner introduced into firm not 
 
 liable for former debts, 195. 
 one partner cannot give, or renew, or 
 endorse notes after dissolution, 196, 
 377, 1104. 
 nor make admissions binding on 
 
 the firm, 1399. 
 if some have died, the survivors 
 
 may, 377. 
 can, before dissolution, 199, 877, 
 
 1399. 
 when can discharge debt due 
 firm by applying it on his own 
 debt, 303, 465, 1060, 1108. 
 cannot recover for his services in 
 settlmg the afi'airs of the fii-m, 
 197. 
 if one partner giVe his note, or other 
 security for the firm debt, he only is 
 liable, the firm being discharged, 197, 
 206, 465, 1043. 
 partnership is liable for debts contracted 
 by one partner, in its business, 197. 
 even if he afterward apply the 
 avails to his own use, 197. 
 
 PARTNERS, &c^Continu6d. 
 
 when liable for fraud of one partner 
 
 198. 
 note, given by one, presumed given 
 in partnership business, 200. 
 burden of proof on partners to 
 show it was not, 200. 
 if not so given, but its proceeds 
 applied to use of film, it is liable, 
 206. 
 when liable for unauthorized acts of 
 one of its members from subsequent 
 assent, 201. 
 when it cannot use name of partner 
 not in the firm;; 211as. ' 
 "and company" or "& Co." 
 must represent an actual part- 
 ner, 211a. 
 may take any firm name it pleases, 
 
 211a. 
 liable for money lent to and used by 
 the firm, 197 to 200, 202. 
 estoppels by one partner, and of one by 
 
 third person, 1403. 
 if partners divide account against debtor, 
 and he promises to pay each one his 
 share, separate actions may be brought 
 therefor, 770. 
 if firm dissolved by death, survivors 
 have the possession of the property, 
 211. 
 giving of partnership paper for debt of 
 one partner, 203, 204. 
 or, as security for third person, 204. 
 when one partner may bind the firm by 
 
 a sealed instrument, 198, 207, 208. 
 submission by one partner to arbitra- 
 tion, 209, 1119. 
 confession of judgment against the firm, 
 
 by one partner, 209. • 
 when partners can sue each other in 
 
 justice's court, 210, 479, 751. 
 actions by and against, 185, 311, 747, 
 790. 
 should be in their full names, 311, 
 
 790, 1009. 
 infant partner should be joined, 
 
 311, 858. 
 in case of the death of a partner, 
 311, 748, 749'. 
 partner cannot recover money paid in 
 furtherance of an illegal transaction, 
 330. 
 infant partner may ratify firm debts 
 
 after his majority, 370. 
 note held by partnership is presumed to 
 
 belong to it, 380.' 
 demand of payment of bill or note of, 
 
 may be made of one of, 420. 
 partners are joint tenants, 619. 
 refusal to deliver by one, is a conversion 
 
 by all, 627. 
 judgment and execution against, when 
 only part served with process, 856 to 
 860. 
 the suit is not a bar to a subsequent 
 
1046 
 
 INDEX. 
 
 PARTNERS, &c.—Gontinmd. 
 
 one against those not served, 857, 
 858a. 
 complaint by must allege they are such, 
 
 953. 
 when demand against one, can be set 
 off against firm, 303, 465, 1060, 1108. 
 one partner cannot release debt due 
 partnership in consideration of one 
 owed by him, 1108. 
 compromise may be made with one 
 after dissolution and he only released, 
 1114. 
 how to be made and form of release, 
 
 1114. 
 if the others pay the debt, they may 
 recover his share of the one re- 
 leased, 1114. 
 when interest is recoverable by one 
 
 partner from the other. 1523. 
 partnership property may be levied on 
 for debt of one partner, 1594. 
 only partner's interest to be sold, 1594. 
 if whole property sold, all concerned 
 are liable, 1494. 
 
 PARTRIDGES, 
 private property in, 563. 
 
 PASSENGERS, 
 by stage or railway, care to be taken 
 
 by themselves, 105 (8). 
 liability of carrier, 37a;, 104 (11), 105 (8), 
 106, 106a, 634. 
 
 PAUPERS, 
 actions by, for their labor in poar-house, 
 
 288. 
 when overseers of the poor liable for 
 
 their board, or medical .attendance, 
 
 288. 
 
 PAWN, 
 
 Bee Pledqb. 
 
 PAWNBROKERS, 
 warranties by, on sales of chattels, 251. 
 
 PAYEE, 
 of bill or note, who is, 345. 
 
 See Bills of Exchange, &c. 
 
 PAYMENT, 
 
 in advance, is good consideration for de- 
 laying payment, 26. 
 
 under duress is void, and may be recov- 
 ered back, 73. 
 
 agreement for, of goods already bought, 
 not void under statute of frauds, 89a. 
 
 of part of purchase money under stat- 
 ute of frauds, what and when to be 
 made, 98. 
 
 what is, in certain special cases, 109, 
 173. 
 
 to agent, when good, 169, 172. 
 on note in agent's hands, 172. 
 
 PAYMENT— Co»feni«ear. 
 when necessary on sales, 226. 
 when waived, 336. 
 evaded, 227. 
 when, or a loan, inferred Irom delivery 
 
 of money, 331. 
 of a bill or note, how far it effects its 
 
 negotiability, 366. 
 when the receipt of a bill or note is, of 
 a cotemporaneous or a precedent 
 debt, 464 to 477. 
 when it is the debtor's own note, 
 
 464, 476. 
 when it is note of third person, 465. 
 presumed not, when for a pre- 
 cedent debt, 465. 
 when not negotiable, 465. 
 presumed to be, when for co- 
 temporaneous debt, 465, 466. 
 when given by one partner 
 for partnership debt, 465. 
 rule in regard to note of one 
 joint debtor, 465. 
 
 where there is forgery or 
 ~ fraud, 467, 468. 
 if conditional, 465, 469 to 473. 
 when becomes absolute, 469, 
 472. 
 by failure to protest, 470, 
 471. 
 in bills of insolvent or illegal 
 
 bank, 467. 
 in notes of insolvent maker, 467. 
 by notes pf an agent, 473. 
 in satisfaction of a lien, 474. 
 cases illustrating rules in relation to 
 transfer of bills and notes as, 475. 
 revives debt under statute of limitations, 
 735, 739, 1103. 
 must be affirmatively shown, 1103. 
 
 evidence of, 1103, 1104a. 
 by whom to be made, and to whom, 
 
 1103, 1104, 1104a. 
 where payment is in part, after 
 statute has run, and is accompa- 
 nied by circumstances rebutting 
 promise to pay remainder does 
 not revive debt for balance, 
 1104a. 
 if not allowed in a suit for a demand, it 
 is-barred, and cannot be sued for, 1089. 
 application of, where creditor has sev- 
 eral demands, 1104&. 
 of less than is owed, before due, in satis- 
 faction, is a bar, 1145. 
 after due, is not, 1143 to 1146. 
 of money into court, 1148 to 1156. 
 
 may be done in justices' courts, 1149. 
 must pay costs and interest up to time 
 it is paid in, 1149, 1152. 
 apswer of, 1150, 
 if in case where not permitted, the 
 irregularity is waived if plaintiff 
 takes it, 1151. 
 may be on one or more of several 
 causes of action, 1151. 
 
INDEX. 
 
 1047 
 
 TAYWEWT—Con^nued. 
 
 proceedings after, 1152, 1153. 
 defendant cannot take it out; the 
 plaintiff may, at any time, and 
 proceed in the action, 1152, 1180, 
 1181, 1183. 
 judgment in, such case, 1152, 1153, 
 1180. 
 admits cause of action to that amount, 
 
 1154. 
 where paid in on separate claims, on 
 some too much, and on others not 
 enough, 1154. 
 is similar in effect to tender after suit, 
 ' 1155. 
 
 party recovering judgment recovers 
 costs, 1181. 
 tender of, on a debt only saves interest 
 and costs, 1159. 
 on note payable in chattels, dis- 
 charges the claim, 1158. 
 ■when demand of, necessaiy in obliga- 
 tions payable not in money, 1170, 
 1171. 
 answer of, supported by proof of tender, 
 1345. 
 payment of less sum, in full, 1345. 
 when presumed from possession of 
 order to pay, or of note in maker's 
 hands, 1393, 1393ffl. 
 application of, when partial to interest 
 
 and principal, 1527. 
 when and where to be made on de- 
 mands payatle in chattels, 452, 1168. 
 of debt owed by a firm, by taking the 
 note or other security of one partner, 
 197, 206, 465, 1042. 
 
 PEDIGREE, 
 evidence in cases of, 1397. 
 
 PENALTY, 
 
 action for, 708 to 714. 
 to be brought in the county where 
 
 the cause arose, or the defendant 
 
 resides, 8, 710. 
 cannot be brought before justice of 
 
 the town which is to receive it, 2. 
 statute of limitations, relative to, 732, 
 
 784. 
 right to recover for, not changed by 
 
 the Code, 708. 
 for what, may be brought in justices' 
 
 court, 3 (3), 5, 709. 
 statutory provisions concerning, 710, 
 
 712. 
 pleading in, 711, 713, 797, 971, 972. 
 endorsement on executions on judg- 
 ments for, 713, 1574. . . 
 more than one can be sued for m 
 
 same action, 972. 
 need not be stated in separate 
 counts, 972. 
 interest on penalty, when recovered, 
 
 1525. , ,. _ 
 
 incurred by wife, when husband liable 
 
 for, 1033. 
 
 PENALTY— Ooniinued. 
 
 may be commenced by warrant in 
 
 certain cases, 807. 
 process to commence to be en- 
 dorsed, 710 (2), 854. 
 sum to be awai-ded, 710 (3). 
 how long defendant confined on 
 
 execution, 713. 
 electors of the town, competent 
 witnesses and jurors, 1294 
 of defendant's bond to prevent removal 
 
 of goods attached, 893. 
 when, or liquidated damages, 1511. 
 
 PENCIL, 
 notes may be written with a, 353. 
 alterations made bj' pencil obliteration, 
 
 366. 
 entries made with, in book accounts, 
 
 1429,1436. 
 
 PENDENCY, 
 of an action by summons, no bar to a 
 subsequent one by warrant, l604. 
 
 PEOPLE, 
 when cannot sue in justices' courts, S. 
 
 PEREMPTOBY CHALLENGE, 
 when, and how many allowed, 1304a. 
 
 PERFORMANCE, 
 when plaintiif must aver and prove, on 
 his part, 114, 217, 372, &c., 954, 957 to 
 960, 961, 963, 1135. 
 
 PERSONAL MORTGAGE, 
 defined, 613. 
 
 no personal debt implied in, 333. 
 title to property is in mortgagee, subject 
 to be defeated, 100, 613. 
 the mortgagee's property in. the 
 goods is a special one, 613. 
 power of a partner to give a, 193, 613. 
 may be valid as to a part of the prop- 
 erty, though not as to the rest, 613. 
 what property may be covered by, 
 613. 
 need not be under Seal, 613. 
 rules as to payment, or sale or redemp- 
 tion of the property, 613. 
 when void, 613. 
 as between the parties, may be by 
 
 parol, 614. 
 does not necessarily require a delivery 
 
 of thQ property, 614. 
 rules relative to filing and refiling of 
 copy, statement, &c., 614, 615. 
 what is a sufficient copy and state- 
 ment, 614. , ' 
 where there is no clerk with whom 
 ' to file it, 614. 
 by whom omission to file can be 
 
 taken advantage of, 615. 
 when not filed till after execution 
 issued, 615. 
 right to levy on mortgaged property, 
 1590. 
 
1048 
 
 INDEX. 
 
 PERSONAL MOmQAGE— Continued. 
 Uen of, 613. 
 destroyed by a tender, 1159, 1166. 
 
 PERSONAL PROPERTY, 
 defined, 563, 564, 631. 
 actions to recover possession of, in jus- 
 tices' jurisdiction, 4 (10). 
 jury on trial, 4, p. 7. 
 proceedings in the action, 4 (10). 
 classes of contracts relative to, 81. 
 growing hops, crops, grain, vegetables 
 
 are, 89a, 139, 503; see also, 1596. 
 ■when rails, fences, hop poles, manure, 
 and trees and plants are, and when 
 real, 503. 
 growing hop roots arc not, but may be 
 
 sold by parol, 89a!. 
 fixtures and things attached to the 
 freehold are not, but may be sold by 
 parol, 140, 1596. 
 
 may be severed by the owner and are 
 then personal, 140. 
 general and special property in, 564, 
 
 575. 
 the owner of, has general property, 564. 
 possession is always presumed to at- 
 tach to him, 564. 
 bailee of, has special property, 564, 569. 
 action lies for wrongful taking, or de- 
 tention of, though without bad inten- 
 tion, 565. 
 
 for unjawful meddling with, 566. 
 manual interference not necessary, 
 566. 
 for unlawful levy on, 566, 567. 
 by whom it lies, 568 to 574. 
 officer who has levied on, has special 
 property in, 568, 578, 578. 
 
 his receiptor has not, 575. 
 also a finder of a chattel, but not of a 
 lost chose in action, 569, 570. 
 former' action of trover for conversion 
 
 of, 569. j 
 
 possession of, is prima facie evidence 
 of title, 570. 
 
 sufficient to authorize recovery for 
 taking or detention, except as 
 against owner and privies, 570. 
 suit cannot be defeated by showing 
 title in some one else, except de- 
 fendant connects himself therewith, 
 571. 
 how stranger to process may contest 
 
 title to, against officer, 573. 
 title to, upon sale on execution, 574. 
 generally, 576 to 589. 
 
 See Title to Goods. 
 
 by accession, and by confusion, 579, 
 
 580, 585. 
 of purchaser, how affected by his 
 
 tort, or fraud, or felonious act, 581 
 
 to 584. 
 
 when the vendor will affirm the 
 sale, 588. 
 
 PERSONAL VnOYTSR'HY—Gmtinued. 
 
 of property repaired remains in origi- 
 nal owner, 585. 
 
 by gift, 586. . 
 
 from increase of animals, let or loaned, 
 587. 
 
 delivered to bailee, same to be re- 
 turned, 588. 
 same, or similar to be returned, 588. 
 
 on satisfaction of judgment for con- 
 version of, 533, 633. 
 liens upon, 589 to 609. 
 
 are a special property, 589. 
 
 See LiBif. 
 
 mortgagee and pledgee have a special 
 
 property in, 613. 
 action of trover for conversion of, 635 
 
 to 681. 
 
 See Teoter. 
 
 for injury to, 681 to 635. 
 in animals, tame or originally -yild, 563, 
 638. 
 actions for injuries to, 638. 
 
 See Animals, ActiO'&s, Bailments, 
 Sales, Fkauds, Statute of. 
 
 PERSONAL REPRESENTATIVES, 
 who are, 750. 
 
 PEW, 
 in a church, when exejnpt from execu- 
 tion, 1586. 
 
 PHOTOGRAPHS, 
 when they may be given in evidence, 
 1340. 
 
 PHYSICIAN AND SURGEON, 
 action for services by, 386. 
 need not be licensed, 386. 
 where employed to treat a patient by a 
 
 third person, 386. 
 
 degree of skill tg be used by, 390, 683. 
 
 if not used, cannot recover for their 
 
 services, 389, 390. 
 
 and are liable in damages, 390. 
 
 do not undertake that they will cure, 390. 
 
 where a "quack," or incompetent one 
 
 is employed, skill required, 390. 
 privileged communications to, 1463 to 
 
 1465. 
 when may give their opinions in evi- 
 dence, 1475. 
 
 PIANO, 
 
 when exempt from execution, 1588. 
 
 PLACE OF TRIAL, 
 where to be, 1, 3, 7, 8. 
 
 PLAINTIFF, 
 may be required to attend trial for ex- 
 amination when it is all co-ed the claim 
 was brought for prosecution, 70. 
 
INDEX. 
 
 1049 
 
 TLAINTIFF— Continued. 
 
 is then entitled to liis fees as a wit- 
 ness, 70. 
 notice to attend, wlien and how 
 served, 71. 
 
 may recover on a contract for his bene- 
 fit made by others, 135. 
 
 in actions on subscriptions, 136. 
 
 factors and auctioneers may be, for goods 
 sold by them, 168, 171. 
 
 rule as to doi-mant partners, 185, 747, 
 790. 
 
 special partnership, 190. 
 
 infant partner must be one of, 211. 
 
 where contract is to several jointly, or 
 severally, 213. 
 
 must perform on his part pefore he can 
 recover on special agreement, and 
 aver it, 114, 317, 273 &c., 954, 957 to. 
 960, 961, 963, 1135. 
 
 married woman maybe in suits for bills 
 and notes held by Ler, 373, 373as. 
 
 in actions for injuries to personal pro- 
 perty, must be general or quaMed 
 owner, 568, 570, 572, 573. 
 
 finder of property, when may be, 570. 
 
 when one having possession of property 
 may be, 570. 
 
 deputy cannot be, nor officer's receiptor, 
 572, 575. 
 ' party in interest must be, 743. 
 
 in execution, when and wlien not liable 
 for unauthorized levy, 765. 
 
 cannot also be a defendant in the same 
 cause, 767a. 
 
 how to appear in court, 917 to 943. 
 
 See Appearance. 
 when an infant, 
 
 8ee Inpajstt. 
 
 appearance of, necessary, 905, 918, 938. 
 
 judgment for, cannot be given on return 
 of a warrant unless he appear, 915. 
 
 must prove his case on defendant's de- 
 fault, 945, 1366, 1541. 
 
 must be called and appear before ver- 
 dict can be received, 1541. 
 
 in execution, may be the purchaser on 
 sale on execution, 1637. 
 
 consent of, that defendant may be dis- 
 charged from arrest on execution, 
 1645, 
 
 in actions on constable's bond, 1643. 
 
 See Actions, Appbakancb, JuDaMENT, 
 Pabties, &o. 
 
 PLANTS, 
 growing, when real and when personal 
 property, 503, 1596. ' 
 
 PLATES, 
 when exempt from execution, 1586. 
 
 132 
 
 PLEADING, 
 definition of, 943. 
 
 when to be made by the parties, 943. 
 same rule in pleading usury as in other 
 
 defenses, 52. 
 answer of demand brought for prosecu- 
 tion, 69. 
 upon special agreements, 316, 963a, 1347. 
 complaint for goods sold and delivered, 
 
 or tendered, 322. 
 answer of note given in payment, 476. 
 common counts abolished, 477. 
 complaint upon written instrument, 477. 
 in actions for penalties, 711, 947. 
 by public officers, 746, 791, 947, 1187, 
 1189. 
 
 -if special character appears in pro- 
 cess it must be followed in the 
 complaint, 791. 
 privilege from arrest must generally be 
 
 pleaded, 884. 
 answer that no guardian was appointed 
 
 •for infant plaintiff, 936. 
 at common law, 944. 
 under the Code, in justices' courts, 945 
 to 951, 969. 
 only complaint and answer, 945a. 
 amendments of, 945 (7, 11). 
 may be oral or in writing, 945 (2). 
 what complaint and answer to con- 
 tain, 945 (3, 4, 5, 9). 
 when demurrer allowed, 945 (6). 
 variances between, alnd the proof, 
 
 945 (10). 
 need not be verified, 945a, 1010. . 
 rules where there is a misjoinder of 
 
 causes of action, 945a. 
 facts, and not evidence, to be stated, 
 
 946. 
 private statutes must be stated in, 
 
 public ones not, 948. 
 legal fictions in, abolished, 949. 
 construction of, to be liberal, 950. 
 the complaint, 951 to 981. 
 
 See Complaint, and Index to Pokmb. 
 
 on written agreement, writing may be 
 referred to and copy given, 945 (9), 
 961. 
 upon implied contracts, 968, 969. 
 not necessary to have separate counts 
 in, 945 (5), 945a, 972. 
 when advisable to have them, 973, 
 980. 
 by the defendant, 988 to 1012. 
 
 See Answer, and Index to Poems. 
 
 demurrer, 988 to 991. 
 
 Wben he must answer, 988, 991. 
 
 ancient classes of pleas, and their 
 
 order, 992 to 996. 
 now matters in abatement must be 
 answered with those in bar, 946. 
 answer to the jurisdiction, 998. 
 in bar (but formerly abatement), 999 
 to 1009. 
 
1050 
 
 IKDEX. 
 
 FLE&DmO— Continued. 
 
 to the person of the plaintiff, 999. 
 of the defendant, lOOC to 1003, 
 1005. 
 to the process, 1003. 
 pendency of another action, 
 
 1004, 1005. 
 part of an action, 1007. 
 forms of answer of matter in, 
 1008. 
 
 See Index to Fobms. 
 
 need not be verified, 996, 1010. 
 in bar (under old system), 1011. 
 what to contain, 945 (3, 4, 9), 1011. 
 table of defenses m, 1011. 
 infency, 1013 to 1023, 1185. 
 
 /See Infant. 
 
 a defendant cannot plead infancy 
 of a co-defendant, 1031. 
 lunacy, drunkenness, &c., 1033 to 1038. 
 
 See Those Titles. 
 
 coverture, 1038 to 1039. 
 
 See Maebied Woman, Husbauu and 
 Wife. 
 
 alteration in the terms of a contract, 
 1039, 1040. 
 
 See Alteration, iContbact. i 
 
 contract illegal, or impossible to per- 
 form, 1040, 1041. 
 
 See Contbact. 
 
 higher security given, 1043 1043. 
 
 See Contract, Payment. 
 
 erasures, alterations, &c., improperly 
 made, 1044. 
 
 See Contract. 
 
 requisities of the answer, 1046. 
 in case of set-off, 1051 to 1079. 
 
 See Set-Opf. 
 
 former trial and judgment for the 
 same cause, 1079 to 1093, 1413 to 
 1430. 
 
 See Former Judgment, &c. 
 
 statute of limitations, 731 to 743, 1093 
 to nor* 
 
 must be pleaded, or defense is 
 waived, 1106. 
 
 See Limitations, Statute op. 
 
 release of cause of action, 1107 to 1117. 
 
 See Release. 
 
 an award of arbitrators, 1117 to 1143. 
 
 must be pleaded, 1117. 
 See Aebitbation and Award. 
 
 FlJEADmO^ConUnrnd. 
 
 when performance of condition in 
 award must be averred, 1135. 
 accord and satisfaction, 1143 to 1148. 
 
 See Accord and Satisfaction. 
 
 justification for impounding cattle, 
 1186. 
 
 See Animals, Distress, &c. 
 
 where the title to real property is in 
 question, 731, &c., 1193, &c. 
 
 See Title to Land. 
 
 demurrer, 1301, 13D3. 
 
 See Demurrer. 
 
 immaterial allegations in, 1346 to 1349. 
 may set up different defenses to different 
 
 claims in the complaint, 1156, 1196a. 
 answer of tender. 1148 to 1185. 
 
 what it must allege, 1177 to 1180. 
 
 of payment of money into court, 1150. 
 answer of title to real estate may be 
 
 put in after issue, 1193. 
 
 payment supported by proof of tender^ 
 1345. 
 writings, records and contracts, how 
 
 alleged in, 1346, 1347. 
 
 See Complaint, Answer. 
 
 PLEDGE, 
 defined, 100 (4), 616. 
 how it differs from mortgage, 100 (4), 
 
 616. 
 title to property remains in pledgor, 100 
 
 (4). 
 
 pledgee has special property, 100 (4), 
 613, 616. 
 actual delivery and possession of the 
 
 pledged property necessary, 100 (4), 
 
 pledgee liable for ordinary neglect, 103, 
 104(7). ■' s, > , 
 
 liable at all events if misuse pledged 
 
 property, 105 (5). 
 may make special agreement as to his 
 
 responsibility, 103. 
 when may use the pledged propertv. 
 
 105 (5), 618. i- i- J. 
 
 profit of the use belongs to the pledgor, 
 
 105 (5), 618. 
 factor's power to pledge goods of prin- 
 cipal, 163, 163a, 607. 
 vendor's right to retain goods sold, as a 
 221. 
 
 or to stop them in transitu, as a, 335. 
 
 implied warranty of title by pledeor 
 
 351. J f b , 
 
 loan upon, when recoverable by action 
 
 333. ' 
 
 must be given as security for a debt or 
 
 engagement, 616. 
 
 need not be debt oi; engagement of 
 
 pledgor, 616. 
 
INDEX. 
 
 VLEDGE-^Continuecl 
 what property may be pledged, 616, 617. 
 
 exempt property, ffl6. 
 on failure of condition, pleda-ee may 
 sell it, 618. ' f & y 
 
 except commercial paper, which 
 
 pledgor must collect, «17, 618. 
 proceeds of sale applied to pay- 
 ment of debt, interest and ex- 
 penses, 618. 
 demand to be made of pledgor, and 
 notice given of sale, 618. 
 may be private sale, without 
 notice, if so agreed, 618. 
 pledgee cannot become the pur- 
 chaser, 618. 
 property may be assigned with the debt 
 
 it secures, 618. 
 pledgor majr redeem it before sale, 618. 
 if pledgee dies, passes to his representa- 
 tives, 618. 
 tender of debt destroys lien of pledge, 
 
 618. 
 
 mortgagor cannot pledge mortgaged 
 
 property to injury of mortgagee, 613. 
 
 se^oflf allowed against pledgor's claim 
 
 for improperly selling the property, 
 
 property pledged may be levied on, 
 1592 (20). 
 officer may take it into his posses- 
 sion and sell pledgor's interest, 
 1593. ■ " 
 
 after sale, pledgee again entitled to 
 possession, 1592. 
 
 PLEDGEE, 
 his responsibility, 102, 104 (7). 
 cannot purchase on sale of the proper- 
 ty, 618. 
 
 See Pledge. 
 
 POLICE 0FEICER8, 
 privileged from arrest, 879. 
 
 POLLING OF JURY, 
 when and by whom it may be de- 
 manded, 1338. 
 
 PORK, 
 
 when exempt from execution, 1586. 
 
 POSSESSION, 
 of land may be shown by deed without 
 ousting justice's jurisdiction; 520. 
 but not right of possession, 722. 
 if unoccupied, is deemed to be in 
 
 the legal owner, 530, 733. 
 used as a highway is in the owner, 
 
 subject to the easement, 523. 
 is primq, fade evidence of title, 530, 
 
 733, 1393. 
 justice may try question of, 530. 
 belonging to religious society is in 
 
 the trustees, 533. 
 witness may be asked who was in, 
 
 1475. 
 
 1051 
 
 POSSESSION-ao»!!m«e(f. 
 of personal property, owner has, 564 
 who has temporary right of 564 
 constructive deffned, 564. ' 
 prima fame evidence of title, 570, 
 
 not of authority to sell, 570. 
 when necessary to create a lien, 589. 
 if parted with lien lost, 589. 
 of goods sold, when purchaser entitled 
 
 to, 334. 
 of goods by vendor, when evidence of 
 fraud, 1598, 1599. 
 by third person, when liable to ex- 
 ecution against him, 1600. 
 of goods by defendant in execution, 
 effect of to render execution dor- 
 mant, 1606, 1607. 
 
 POUNDAGE, 
 when constable entitled to, 1533. 
 
 POWER OP ATTORNEY, 
 when not revocable, 178. 
 
 PRECEDENT DEBT, 
 when holder of commercial paper in 
 payment of, is a boria fde one for 
 value, 389, 389a. 
 when receipt of note or bill is payment 
 of, 464 to 477. 
 
 See Payment. 
 
 PREPARATION, 
 for trial, 1338. 
 
 PRESCRIPTION, 
 rights as to division fences may be de- 
 termined by, 581. 
 or to divert or dam the waters of a 
 
 river, 558. ( 
 or to use running water, 554. 
 twenty years enough to confer rights 
 
 by, 581, 554, 558. 
 will not legalize a nuisance, 557, 558. 
 
 PRESUMPTION, 
 
 that where one ought to pay there is a 
 contract that he will, 6. 
 
 that a person is sane, 33, 1036, 1893. 
 
 if a person is proved to have been in- 
 sane, he is presumed yet to be so, 33, 
 1392. 
 
 of fraud may be afforded in case of 
 weakness of mind and other circum- 
 stances, 82. 
 
 seal affords, of consideration, 38, 38. 
 
 that contract is void if it contravenes a 
 statute, 37. 
 
 is, generally, that the consideration of a 
 contract is le^al, 38. 
 that it is not immoral, 43. 
 
 as to the law of a foreign country, and 
 its agreement with ours, 55, 1394. 
 
 that the reservation of a small excess 
 of interest was by mistake, 57. 
 
1052 
 
 INUKX. 
 
 PRESUMPTION— CowfonMSff. 
 when, that holder of a bill or note is 
 
 iona fide, 67, S80, 383, 397. 
 
 if piOTed that'it is illegal or fraudu- 
 lently in circulation, holder must 
 prove good faith, 388. 
 none of fraud ; it must be proved, 76aj. 
 vjrhen, and when not, of a delivery, un- 
 der the statute of frauds, 96, 97, 
 private stealth affords, of ordinary neg- 
 lect, 103. 
 of assets, if executor or administrator 
 
 gives notes, 150. 
 
 may be rebutted, 150. 
 of agent's authority, 154. 
 that partners share profits equally, 181. 
 when, and when not, that firm note 
 
 was given for firm debt, 200. 
 when that services were gratuitous, 397. 
 that money advanced by a parent to 
 
 his child is a gift, and not a loan, 331. 
 loan, when one is presumed, 381, 333. 
 whether debt presumed from giving a 
 
 mortgage, 333. 
 that acceptor knows drawer's signa- 
 ture, 349. 
 when are father and son of same name, 
 
 to whom note to that name belongs, 
 
 359. 
 that owner of negotiable paper is its 
 
 owner, 359. 
 
 otherwise as to that non-negotiable, 
 359. 
 that note "for value received," was 
 
 given on a consideration, 364. 
 
 was delivered on day of its date, 365. 
 rule as to, where note or writing is 
 
 altered, 368, 1045. 
 in case of full endorsement of bUl or 
 
 note, 380. 
 of demand and dishonor of bill or note, 
 
 from lapse of time, 397. 
 none, that lost bill or note was nego- 
 tiable, 401. 
 that acceptor is debtor of the drawer, 
 •418. 
 whether, that note or bill was, or was 
 
 not taken in payment of a cotempo- 
 
 raneous, or pre-existing debt, 464 to 
 
 467. 
 in what cases, of negligence in personal 
 
 injuries, 484, 491. 
 of damage in all cases of trespass, 505, 
 
 516. 
 of a grant from twenty years use of a 
 
 dam, water privilege or spring, 554, 
 
 558, 559. 
 that party having the possession is the 
 
 owner of real and personal property, 
 359,530,570,733,1393. 
 against validity of gifts from intimate 
 
 friend, or father to son, 586. 
 that a loss was by tavern-keeper's fault, 
 
 595. 
 demand and refusal are, of conversion, 
 
 636. 
 
 PRESUMPTION— CorafoftweiZ. 
 may be repelled, 636. 
 that process was served in officer's 
 
 county, 866. 
 none, tliat a wife has authority to ap- 
 pear for her husband In a suit, 921. 
 that parties are joint creditors, and not 
 
 partners, unless so averred in plead- 
 ing, 953. 
 that a husband is not liable for his 
 
 wife's purchases when she lives apart 
 
 from him, 1053. 
 of marriage from cohabitation, 1038. 
 that the date of a wi'itten assignment is 
 
 correct, 1053. 
 that goods seized on attachment or exe- 
 cution are sufl5cient to pay the debt, 
 
 1074. 
 of payment of judgments and sealed 
 
 instruments under the statute of limi- 
 tations, 1095, 1096. 
 that debt barred by the statute was 
 
 paid at some former time, 1 103. 
 when, that an award was ready in time, 
 
 and embraces aE matters submitted, 
 
 1136, 1130. 
 sometimes changes sides, 1348. 
 of the death of a person after seven 
 
 years absence, 1343. 
 of infancy, 1343. 
 
 of a fact in a party's knowledge, 1343. 
 when, that an officer has done his duty, 
 
 1844, 1387 to 1390. 
 not that a person has acted illegally, 
 
 1344. 
 that officer taking acknowledgment, 
 
 has a right to do so, 1373. 
 against a party who refuses to produce 
 
 evidence on notice, 1380 . 
 that public officers are what they are 
 
 reputed to be, 1386. 
 evidence, presumptive, defined, 1390. 
 
 illustrative cases, 1390 to 1896. 
 
 force and value of, 1390, 1891. 
 of legitimacy, 1393. 
 
 solvency, 1393. 
 
 a man's character, 1393. 
 
 of marriage, 1392. 
 
 of payment of former rents, from re- 
 ceipt for later ones, 1398. 
 
 receipt for produce not presuruptive 
 of indebtedness, 1893a. 
 
 from giving of note, 1898a. 
 
 of payment of antecedent debt from 
 receipt of money, 1898a. 
 
 receipt, when not of general settle- 
 ment, 1398a. 
 
 of payment of note from possession 
 by maker, 1398a. ' 
 
 that writings were executed at date, 
 or day of acknowledgment, 1393&. 
 
 stated account, 1893. 
 that a witness is competent, 1455. 
 that witness was sworn, and that defect 
 
 in proof was supplied, 1493. 
 that the animals of several owners 
 
INDEX. 
 
 1053 
 
 PRESUMPTION— CoraiJTiwd 
 
 committing an injury, each did an 
 
 equal amount of damage, 643, 1534. 
 none of a grant, from tlie use of 
 
 windows twenty years, 561. 
 of fraud in sale where there is no change 
 
 of possession, 1598, 1599. 
 
 PREVENTION OF PUBLIC JUS- 
 TICE, 
 contracts for, Toid, 45, 394, 395. 
 
 PRINCIPAL AND AGENT, 
 
 See Agent. 
 
 PRINCIPAL AND SURETY, 
 
 See SnKETT. 
 
 PRINTING, 
 
 what contracts for, void, 42. 
 implements, not exempt from execution, 
 1588. 
 
 PRISONERS, 
 actions hy for their work and labor, 288. 
 for their board and medical attend- 
 ance, against oflEicer, 288. 
 how kept by the oflScer, 885, 886. 
 
 PRIVATE ROAD, 
 
 action for injuries to, or obstructions 
 of, 549. 
 
 PRIVATE STATUTE, 
 
 See Statute. 
 PRIVATE STEALTH, 
 
 See Stealing. 
 
 PRIVILEGE, 
 from arrest, who has the right, 879, 1335. 
 of being sued in a particular manner is 
 
 lostif sued with one not entitled to it, 
 
 801. 
 from arrest on Sunday, 880. 
 if one who is arrested is privileged from, 
 
 he must be discharged, 879. 
 is personal, and maybe waived, 879, 884. 
 from arrest in a dwelling-house, 881, 883. 
 of a witness to refuse to answer questions 
 
 that may convict him of crime, 1473. 
 
 PRIVILEGED, 
 cpmmunication, 1457 to 1468. 
 from a client to his counsel, 1457 to 
 ■1463. 
 confessions to a minister of the gospel, 
 
 1463, 1464. 
 disclosures to a physician, 1465. 
 it is for the court to decide upon the 
 
 privilege, 1467. 
 client's privilege may be waived by him, 
 1457. 
 his attorney or counsel may testify 
 in his favor, 1437. 
 
 PRIVILEGED— Continued. 
 
 extends to law student and inter- 
 preter, 1458. 
 
 does not extend to "pettifogger," 
 1460. . ^ b& , 
 
 nor where the communication 
 is as to the commission of a 
 crime, 1461. 
 
 / 
 
 PROCEEDINGS, 
 void for irregularity, 663, 664. 
 when amendable, 1661 to 1663. 
 
 PROCESS, 
 
 court must have jurisdiction of, 65S. 
 
 must be properly served, 653. 
 
 lack of jurisdiction appearing on face of, 
 oflScer and court liable, 667. 
 
 regular upon, its face, protects ofiBcer, 
 666, 1637. 
 
 oflScer may refuse to serve if justice had 
 no jurisdiction to issue it, 1637. 
 
 abuse of, party not liable for unless he 
 ratifies it, 670. 
 
 officer may command assistance in serv- 
 ing, and rules relative to, 673, 886. 
 liable for neglect to serve, 684. 
 
 justice liable for refusing to issue, 684. 
 
 how time between date, service and re- 
 turn is computed, 793. 
 
 See Time. 
 
 defects in service of, waived by appear- 
 ance, without objection, 30, 855, 903ffl. 
 not to be served on certain persons on 
 Saturday, under a penalty, 793, 853. 
 when void, 804. 
 
 if affidavit on which it issues is de- 
 fective, 804. 
 justice liable if irregularly issued, 847. 
 when good title set aside, 804. 
 when evidence slight and inconclu- 
 sive, but has a tendency to make 
 ■^ out a case in all its parts, 804. 
 requisites of, 849 to 853. 
 to be in the name of the people, and 
 in the English language, 849. 
 in fair, legible hand,, and on jjaper 
 
 or parchment, 849. 
 with none but common abbre- 
 viations, and may be in bad 
 English or misspelled, 849. 
 signed by the justice, 850. 
 need not be under seal, 850. 
 without blanks left to fill, 850. 
 directed to any constable of the 
 
 county, 850as. 
 need not show amount of claim, 851. 
 not to be issued or served on Sunday, 
 or made returnable on Sunday, or 
 election day, 852, 873. 
 when to be endorsed, and what is suf- 
 ficient, 710 (3), 854. 
 service of, 861 to 866. 
 upon one of several defendants, 856 to 
 861. 
 
1054 
 
 INDEX., 
 
 PROCESS— Oontinued. 
 
 officer cannot break uato dwelling to 
 make, 871. 
 
 See DwBLLmG-HousE. 
 
 return of, 864 to 869. 
 
 defects in, when cured, 903<i. 
 constable may serve summons in his 
 own favor and charge fees, 869. 
 cannot depute one to serve, 869. 
 justice may authorize any one to serve 
 certain, 870, 904. 
 his retuA, 870. 
 form of the authority, 904. 
 ♦ he has no fees, 870. 
 not to issue for infant plaintiff without 
 appointment of guardian, 924, 926. 
 
 See Infant. 
 
 officer liable for executingJt improperly, 
 
 justification under, 1187 to 1190. 
 appearance on return of, 905 to 942. 
 
 See Appbabancb. 
 
 against defaulting witness, 1236, 1341, 
 1242. 
 process to collect fine, 1244 to 1247. 
 
 See Actions, Summons, Attachment, 
 Wakeant, Parties, &c. 
 
 PROFESSIONAL BOOKS, 
 when exempt from execution, 1586a. 
 
 PROFESSIONAL INSTRUMENTS, 
 when exempt from execution, 1586. 
 
 PROFESSIONAL PERSON, 
 his implied undertaking, and the degree 
 of skill and care he is to exert, 290, 
 683. 
 if he does not, he cannot recover 
 compensation, and is liable in 
 damages, 289* 290. 
 action by, for his services, 286, 
 evidence in action by attorney for his 
 services, 293. 
 it may be shown he agreed to per- 
 form them gratis, 293. 
 for what, action against, should be 
 
 brought, 683. 
 complaint against, oh implied contract, 
 
 965. 
 when, may give his opinion in evi- 
 dence, 1475. 
 
 See Worb: anb Labob. 
 PROFESSIONAL SERVICES, 
 
 See PBOFESsiONAii Peeson, Work and 
 Labob. 
 
 PROFITS, 
 when an item in the estimate of dam- 
 ages, 1519. 
 
 PROMISE, 
 of indemnity to trespasser, when Talid, 
 40, 41. 
 
 PROMISSORY NOTE, 
 
 See Bills of Exchange, &o. 
 
 PROOF AND ACKNOWLEDGMENT, 
 of instruments, 1369 to 1372. 
 clerk's certificate to authenticate, 1373. 
 when wynM facie, good, 1373. 
 
 PROPERTY, 
 general and special, defined, 564 
 degrees of title to, 723. 
 
 PROSTITUTE, 
 action may be maintained for clothing 
 sold her, or to recover for washing for 
 her, 43. 
 
 PROSTITUTION, 
 contracts to aid, are immoral and void, 
 
 43, 394. 
 rent cannot be' recovered for premisea 
 
 leased for, 341. 
 when use of premises for, by landlord, 
 
 discharges tenant, S44as. 
 
 PROTEST, 
 
 See Bills of Exchange, &o. 
 
 PUBLIC ENEMY, 
 contracts with, are void, 45. 
 
 PUBLIC JUSTICE, 
 conti-acts for the prevention ^f are void, . 
 45. 
 
 PUBLIC STATUTE, 
 
 See Statute. 
 
 PURCHASE, 
 
 with intent not to pay, is fraudulent and 
 void, 331. 
 
 right of the hono, fide purchaser from the 
 fraudulent vendor, 332. 
 
 if note or "security be taken on fraudu- 
 lent, the vendor must return it before 
 reclaiming his goods, 80, 233. 
 
 when vendee entitled to delivery of 
 goods upon, 334. 
 
 See Sale. 
 
 PURCHASE MONEY, 
 payment of part of, under statute of 
 frauds, what and when to be made, 98. 
 how it may be paid, 98. 
 
 PURCHASE PRICE, 
 under exemption law, defined, 1588. 
 
 PURCHASER, 
 
 from unauthorized agent must purchase 
 in good faith and for a good consid- 
 eration, 154. 
 
 lona fide, 
 
INDEX. 
 
 1065 
 
 PURCHASER— Confo-Tiwedr. 
 
 See Bona Fide Pdechaher. 
 
 implied license to, to enter on land for 
 
 purchased property, 513. 
 of real estate, to sue for what trespasses 
 
 thereon, 519. 
 evidence in actions by, for property pur- 
 chased on execution sale, 568, 574! 
 title of, at execution sale, 574. 
 of property in defendant's possession 
 
 may sue in trover after demand and 
 
 refusal, 628. 
 of goods to prevent a levy, gets no title 
 
 as against the process, 674. 
 on unauthorized execution sale, liable, 
 
 765. 
 must pay for goods bought on execution 
 
 sale, or is liable for damages, 1637. 
 plaintiff in execution may be, on sale, 
 
 1637. 
 
 Q. ^ 
 
 QUANTUM MERUIT, 
 
 defined, 968. 
 
 plaintiff may recover upon complaint 
 on, though there was a special agree- 
 ment fixing the price, 968. 
 
 QUESTIONS OF FACT, 
 
 for the jury and for the justice sitting 
 alone : 
 
 in cases of fraud, 76a!. 
 
 in bailments, 107. 
 
 in cases of faUiire to perform an agree- 
 ment, 110. 
 
 when agent signs his own name to his 
 principal's note, 154. 
 
 whether there was a warranty or not, 
 25^ 264 (6). 
 
 whether a defect was known or was 
 visible, 353, 364 (7). 
 
 whether a sale was by sample, 359. 
 
 when and by whom an alteration was 
 made, 368. 
 
 whether notice of protest was sufficient, 
 435. 
 
 whether holder of bill or note has used 
 diligence in giving notices, 438 (8). 
 
 whether there was negligence in suits 
 for personal injuries, 484. 
 
 whether an obstruction is in the high- 
 way, 493. 
 
 whether a personal mortgage is void or 
 not, 613. 
 
 whether the killing of an animal was 
 necessary, 638. 
 
 whether the husband is liable for nec- 
 essaries furnished his wife, while liv- 
 ing separate from him, 1033. 
 whether they were necessaries, 1033. 
 
 whether endorsement on note revives 
 it, 1104a. 
 
 whetlier money tendered is brought in- 
 to court, is not, 1106. 
 
 QUESTIONS OF 'FA.Q'Y— Continued. 
 whether property claimed to be exempt 
 
 as necessary is so, 1586a. 
 arising from there being no change of 
 
 possession on sales of chattels, 1598, 
 
 1599. 
 
 R. 
 
 RABBITS, 
 
 private property in, 563. 
 
 RACING, 
 of animals, agreements fbr are void, 50. 
 
 RAILROAD, 
 
 companies, what agreements they may 
 
 make with a gratuitous passenger, 
 
 37o, 684. 
 
 as to agreements for freight, 106«, 
 634. 
 their responsibility, 105 (8), 634a!. 
 
 what passengers may do in case of 
 accident, 105 (8). 
 
 liability for baggage, and when it 
 ceases, 105 (8). 
 when liable for negligence, 481, &c., 
 
 634, &c. 
 on whom process to be served, 730. 
 running through a county, cannot be 
 
 sued by short summons therein, 801. 
 
 RAILS, 
 when personal, and when real property, 
 503, 1596. 
 
 RATIFICATION, 
 of agreements made on Sunday, 50. 
 of acts of agent, 176fl!. 
 
 when and how made, and its effect, 
 176a. 
 of partner's unauthorized act, 201. 
 by infant, after he becomes of age, 370, 
 
 1015, 1019. 
 
 to whom to be made, 370. 
 
 what necessaiy to, 1015, 1016, 1019. 
 by party, of officer's unauthorized act ; 
 
 makes him liable, 670, 671. 
 
 what is sufficient, 670. 
 
 RAVENOUS ANIMALS, 
 entry on lands in pursuit of, permitted, 
 563. 
 
 See Akimals. 
 
 REAL ESTATE, 
 mortgage of; no action lies to recover 
 the debt in absence of covenant," ex- 
 press or implied, to pay, 333. 
 
 REAL PROPERTY, 
 defined, 503, 503. 
 growing trees are, 139, 502. 
 wh4n they are personal, 503. 
 grass, 139, 502. 
 fruits, 139, 503. 
 when fences and rails are, 503. 
 
1056 
 
 INDEX. 
 
 REAL PROPERTY- 
 
 when hop-poles real property, 503. 
 when manure is, 502. 
 water privileges are, 503. 
 growing plants, when real, 503. 
 parol sale of, void, 137. 
 fixtures may be severed and sold by 
 
 parol, 140. 
 an easement or servitude is, 143. 
 title to not divested by surrender or 
 
 destruction of deed, 147. 
 injuries to, 501 to 563. 
 grain and vegetables are not, 503. 
 boundaries of, when on a highway or 
 
 stream, 504. 
 is surrounded by an imaginary fence or 
 
 close, 505. 
 license to enter on, express or implied, 
 506. 
 given by law in what cases, 513, 
 519. 
 revocation of, and its consecjuences, 
 
 507, 513. 
 to one, no authority to take others 
 
 with him, 508. 
 with a key, not to enter otherwise, 
 
 511. 
 agreement to sell not, 509. 
 
 See License. 
 
 trespasser from the beginning on, 514, 
 
 515. 
 entry upon, when actionable, 516 to 
 519. 
 must be with some degree of fault, 
 516. 
 illustrations of rule, 516, 518. 
 ignorance no exQuse for, 516. 
 justified in pursuit of ravenous 
 animals, 563. 
 
 See Tbespass. 
 
 entry on justifiable when highway 
 founderous, impassible or obstructed, 
 577. 
 by whom action for trespass upon 
 to be brought, 519, 531. 
 when it may be against the owner, 
 519. 
 possession sufficient to maintain action, 
 530. 
 what is sufficient, and evidence 
 thereof, 520, 523. 
 actions for injuries by tenant, 534. 
 right of owner to use, in its natural 
 state, 535. 
 what the adjacent owner may do, 
 535. 
 if landlord omits to make repairs, when 
 
 liable to adjacent owner, 535. 
 injuries to, by the animals or chattels 
 
 of others, 536, 533, 535 to 543. 
 fences and inclosures of, 637 to 543. 
 fisheries are, 543. 
 
 injuries to, 543 to 547. 
 water rights and flowage, 549 to 561. 
 
 REAL PROPERTY— Core^jJiwcf. 
 injuries to private road, 549. 
 tenant at wUl of, 510. 
 from year to year, 338 to 341. 
 cannot dispute his landlord's title 
 339, 1895, 1403. 
 obstruction of lights, by erections, 561. 
 when title to, is in question, statutory 
 provisions, 5, 520, 723 to 739, 1193 to 
 1199. 
 stages or degrees of title, 733. 
 a right of public or private way, 
 involves a question of title to, 734. 
 lease, to show right to rent, does 
 
 not, 735. 
 question of, may arise upon the sale 
 
 of standing timber, 736. 
 is involved, where the possession 
 of unoccupied lands is shown by 
 title, 1737. 
 cannot be tried by justice, even by 
 
 consent, 19, 738. 
 complaint for trespass to, should 
 specify close, 1199. 
 arbitrators cannot arbitrate as to title 
 to, 1118 (3), 1135, 1130. 
 , may as to its location or boundaiy, 
 1130. 
 as to equitable titles, 1130. 
 chattels real are, 1585. 
 SeeliXSD. 
 RECAPTURE, 
 
 See AuREST, Escape. 
 
 RECEIPT, 
 
 ^I. O. U. is not a, but is evidence of 
 money lent, 333. 
 
 for goods levied upon or attached, 575, 
 895, 1611. 
 
 of indebtedness, when presumed from, 
 subsequently given, 1393. 
 
 when a, is not evidence of an indebted- 
 ness, 1393a. 
 
 when it may be contradicted or ex- 
 plamed orally, 1401, 1433. 
 
 RECEIPTOR, 
 of property levied on cannot sue in his 
 
 own name for the property, 575. 
 constable may deliver attached goods 
 
 to, if defendant gives no bond, 895. 
 constable may deliver goods levied on 
 
 to, 1611. 
 cannot plead set-off, 1055. 
 is estopped to deny officers' title, 1403, 
 
 1618. 
 goods must be demanded of him before 
 
 return day, 1618. 
 
 RECISSION, 
 of contracts for fraud, how and when 
 
 made, 80. 
 party must be restored to his old situa- 
 tion, 80. 
 restore what he has received, 76, 
 80, 364 (3, 4, 5), 367, 1513. 
 
INDEX. 
 
 1057 
 
 RECKLESSNESS, 
 where one cannot contract affainst his, 
 106a. 
 
 RECORD, 
 contracts of, defined, 23. 
 
 RECORDS, 
 proof of, 1350 to 1365. 
 
 See EviDENCB. 
 
 RECOUPMENT, 
 in actions upon 'bontract, 375, 289. 
 upon a warranty, 1093. 
 
 REDEMPTION, 
 of chattels mortgaged, 613. 
 pledged, 618. 
 
 RELATIONSHIP, 
 of justice, juror or constable, and its 
 effect, 
 
 See Atfinitt aito CoNSANGunsnTT. 
 
 RELEASE, 
 of judgment against one of several 
 
 wrong-doers releases all, 707. 
 cannot be made by an infant, 1018. 
 technical words applicable to, and their 
 
 force, 1108 to 1111. 
 by one of several joint creditors a re- 
 lease by all, 1108. 
 consideration necessary, 1108. 
 when by parol good, 1108. 
 by one partner in consideration of an 
 
 individual debt is void, 1108. 
 of demands not yet due, by what words, 
 
 1109. 
 general words in, taken most strongly 
 
 against releasor, 1110. 
 effect of "of all actions," 1110. 
 
 of other special expressions, 1109, 
 1110. 
 when should be under seal, 1108, 1113. 
 when general, is restrained by particu- 
 lar words, 1110. 
 as a general rule, is construed accord- 
 ing to its purpose, 1110. 
 sometimes, and when, implied by law, 
 1111. 
 covenant never to sue, 1113. 
 but not one not to sue for a defi- 
 nite time, 1111. 
 " exoneration" of one joint debtor 
 
 is not, 1111. 
 by delivery to debtor of security, 
 
 nil. 
 
 of one jointly liable releases all, 1113. _ 
 covenant not to sue one of them is 
 not, 1113. 
 nofto sue all is, 1113. 
 compromise maybe made with one, 
 1114. 
 how to be made, and what mem- 
 orandum to be given, 1114. 
 
 133 
 
 'R'ES.i:— Continued. 
 
 creditor may collect his debt of 
 the others, 1114. 
 they, if they pay, may col- 
 lect his share of the one 
 released, 1114. 
 appointment of a debtor as executor or 
 
 administrator, not a, 1113. 
 how it should be drawn, 1109, 1110. 
 where debtors are several, discharge of 
 one not a release of others, 1113, 1115. 
 of maker or endorser, or acceptor, re- 
 leases subsequent parties, 1113. 
 of one stockholder of a manufacturing 
 
 corporation not of the rest, 1115. 
 award of arbitrators, when equivalent 
 to, 1116. 
 
 RELIGIOUS BELIEF, 
 of a witness may be shovni to affect his 
 credibUity, 1443, 1484. 
 he may be cross-examined as to 
 it, 1443. 
 oath to witness may be administered 
 according to his, 1444 (86), 1445. 
 
 RELINQUISHMENT, 
 of damages, where jury exceed justice's 
 jurisdiction, or plaintiff's claim in 
 complaint, 1374, 1533. 
 
 RENT, 
 in absence of special agreiement is not 
 
 due till end of term, 335. 
 ' relation of landlord and tenant must 
 
 exist, 335. 
 due to purchaser, assignee or represen- 
 tatives of landlord, if he sells, &c., 
 
 336a. 
 rate of where tenant holds over his 
 
 term, and when payable, 338 to 341. 
 action for, 334 to 345. 
 
 cannot be defended by denying 
 
 lessor's title, 335, 339, 1395, 1403. 
 
 in case of eviction, and when that occurs, 
 
 344a, 3446. 
 where premises are injured or destroyed 
 
 by the elements, 344. 
 where tenant has been evicted, or has 
 
 not occupied, 344, 1053. 
 when the premises were not tenantable, 
 
 344e. 
 where the landlord has not made repass 
 
 he agreed to make, %AM. 
 where premises are let for an unlawful 
 
 purpose, 341. 
 when may be used as a set-off, 1053. 
 when and where tender of to be made, 
 
 1167. 
 amount of, recoverable agamst tenant, 
 
 1518. 
 interest recoverable on, 1522. 
 
 See Landlord ajid Tenant. 
 
1058 
 
 INDEX. 
 
 REPAIRS, 
 
 landlord's implied agreement to make, 
 
 344c. 
 rights of tenant when landlord agrees 
 
 to make them, but does not, 344d. 
 damages against landlord, or against 
 
 tenant, for not making, 1518. 
 
 REPEAL, 
 
 ^ of statute making a contract void, will 
 not legalize it, 37. 
 
 REPLEVIN, 
 actions of, may he brought in justices' 
 courts, 4 (10). 
 proceedings in, 4 (10). 
 jury in, 4 y). 7). 
 
 REPRESENTATION, 
 of agent, when binding on principal, 
 159, 1403. 
 See Admissions, Pkincipal and Agent. 
 
 REQUEST, 
 to pay or perform, when necessary be- 
 fore action on contract, 1173, 1173. 
 
 )8^ Demand. 
 
 RESCUE, 
 when, and when not defense to oflBcer 
 
 fbr an escape, 691. 
 of property distrained, damage-feasant, 
 
 RES QEST.a!, 
 defined, 1408. 
 
 when declarations are competent evi- 
 dence, 1408. 
 when for, and against parties mak- 
 ing them, 1408. 
 
 RESIDENCE, 
 what is last place of, under attachment 
 law, 899. 
 
 RESISTANCE TO PROCESS, 
 duty of officer to overcome, 886. 
 
 IiestauraNt, 
 
 is not an inn so as to create relation of 
 landlord and guest, 595. 
 
 keeper of, must post certain notice, or 
 he cannot recover for articles fur- 
 nished, 595. 
 
 RESTRAINT, 
 
 of trade, contracts for general, are void, 
 47, 48. 
 when for limited, are good, 47, 48. 
 rules relative to, 47„48. 
 
 RETURN, 
 by officer, of service on part of joint 
 
 debtors, to be special, 856. 
 of service of summons, 862 to 869. 
 to be in writing, 864. 
 what to contain, 864 to 867. 
 
 RETURN— Cbrefenaee?. 
 
 should be on the process, or at- 
 ' tached to it, 866. 
 necessary to give the justice juris- 
 diction, 867, 868. 
 rules as to contradictions of, 866, 
 
 867, 869. ^ 
 
 justice should not proceed till it is 
 made, or defendant waives it, 868. 
 one deputed to make service must 
 make: his affidavit not proper, 
 870. 
 of service of a warrant, 873. 
 what it must contain, 873, 874. 
 should be on warrant or attached to 
 it, 877. 
 of service of an attachment, 901, 903. 
 
 what to contain, 901, 903. 
 if false, officer liable, 867. 
 prima facie evidence, even against third 
 
 persons, 1384. 
 justice should wait one hour after, for 
 
 appearance, 905 to 914. 
 defects in, cured by appearance, 903cf. 
 objections for and irregularities, when 
 to be made, 903a. 
 of execution necessary, before issuing 
 
 of new, or renewal of old, 1576. 
 upon an appeal, 1653, &c. 
 should show that the summons con- 
 tained time and place of appear- 
 ance, 1541. 
 if shows no objection to defect of 
 evidence, presumed it was suppUed, 
 1493. 
 
 See Officer, Evidence. 
 
 RETURN OP PROPERTY, 
 when necessary on avoiding sale, 76, 80, 
 233, 247, 360, 364, 267, 1513. 
 
 REVERSAL, 
 of judgment does not divest title of 
 property sold on execution, 568. 
 
 REVERSIONER, 
 his impUed right to enter on the prem- 
 ises, 512. 
 when to sue for trespass, 519. 
 
 REVOCATION, 
 
 when it terminates a license, and the 
 consequences thereof, 123, 507, 513. 
 to whom notice of, to be given, 507. 
 when it terminates an agency, 173. 
 of submission to arbitration, damages 
 for, 963. 
 when and how to be made, and by 
 whom, 1139. 
 
 REWARD, 
 action for, when maintainable, 961 (p. 
 
 507). 
 when statute of limitations begins to 
 
 run on claims for, 1097. 
 
INDEX. 
 
 1059 
 
 EIVER, 
 rights of owners of banks of, to water 
 
 flow, &c., 547 to 561. 
 ■boundaries of lands bounded on, 504. 
 
 ROAD, 
 
 law of the, 490 to 493. 
 private, Injury to, 549. 
 
 See Highway. 
 
 RULE OF COURT, 
 proof of, 1353. 
 
 SABBATH. 
 
 s. 
 
 See SimDAT 
 
 SALARY, 
 
 when due, 1097. 
 
 when statute of limitations begins to run 
 on claim for 1097. 
 
 SALES, 
 defined, 83. 
 on Sunday, when void and when valid, 
 
 50. 
 when may be void for usury, 53. 
 of one's credit, not usurious, 63. 
 factor may charge a per centage on, 63. 
 void for fraud, remedies of parties, 76, 
 
 348. 
 fraudulent, 76, 78 to 81, 331 to 334, 338, 
 
 340, 347, 348, 581, 645. 
 vendor must not conceal secret defects, 
 nor use artifice, 78, 79. 
 all defects need not be enumerated, 79. 
 duty of vendee to protect himself, 79. 
 law protects him against unfairness 
 
 and fraud. 79. 
 if he knows the statements to be false, 
 there is no fraud, 79. 
 vendor may commend his goods and 
 
 exalt their value, 79. 
 how and when rescinded for fraud, 76, 
 
 80, 333, 247, 364, 367, 645. 
 title to goods sold, when it passes, 83, 
 84, 85, 236, 334, 576 to 586. 
 on conditional sales, 331, 230, 330a, 
 1591. 
 1 in sales on credit, 84, 334. 
 
 where something is yet to be done, 
 
 as weighing, &c., 84, 1161. 
 where part of the goods are de- 
 livered, 84. 
 of goods yet to be manufactured, 
 
 84,577. . . 
 
 passes as soon as bargam is struck, 
 
 85. 
 when not till payment, unless the 
 
 goods are delivered, 336. 
 to crops, &c., to be raised, 577. 
 by conftision and accession, 577 to 
 581. 
 price is payable m cash, unless otherwise 
 agreed, 83. 
 
 SALES— Continued. 
 lien of vendor, 85, 236. 
 
 discharged by a tender by vendee, 85. 
 loss of goods in vendor's hands, 86. 
 when vendor is bailee for vendee, 87. 
 when interest begins to run on, 1525. 
 as aflfected by the statute of frauds, 88 
 
 to 99. 
 
 goods yet to be manufactured are not 
 in statute, 89. 
 
 where goods exist, but are yet to be 
 finished, 89. 
 
 when agreement is for sale, and when 
 not, 89. 
 
 goods worth over $50, but price not 
 agreed onc89a. 
 
 judgment for ovtr $50, 89a. 
 
 growing hop roots, 89a. 
 
 standing trees, 89a. 
 
 memorandum, 90, 91. 
 
 delivery upon, 93 to 97. 
 cases of, distinguished from bailments, 
 
 99a. 
 if no delivery, and nothuig paid, no 
 
 action lies for goods, 131. 
 of partnership property by one partner, 
 
 193. 
 conditional, 221, 330. 330a, 1591. 
 
 and delivery, 97, 227 to 230. 
 absolute delivery, 336. 
 where vendee refuses to accept, vendor 
 
 may re-sell and recover balance, 333, 
 
 962a. 
 payment and delivery are concurrent 
 
 acts, 236. 
 rendor need not deliver till paid, 226. 
 
 may retain goods till payment as a 
 pledge, 336. 
 where payment was to have been in 
 
 notes of third person, who is or be- 
 comes insolvent, 236, 247. 
 where vendee becomes insolvent, and 
 
 deposits goods for the vendor, 236. 
 where payment is evaded, 337. 
 waiver of the terms of, 330. 
 rights of vendor against bona fide pur- 
 chaser from fraudulent vendee, 331, 
 
 332, 581. 
 where purchase amounted to a 
 felony, 383. 
 right of stoppage in transitu, 334 to 338. 
 of public office, void, 45. 
 waiver of tort upon, 238, 347, 248, 306, 
 
 646, 730. 
 action upon, 239 to 251. 
 
 when price is due, 339 to 342. 
 
 vendor must perform on his part, be- 
 fore he can recover, 389. 
 colorable are void. 
 
 See Bbttdtg and Gaming. 
 
 of goods to wife or servant, 343, 343. 
 no action lies till credit has expired, 
 240. 
 except hi cases of fraud, 240, 347, 
 348. 
 
1060 
 
 INDEX. 
 
 SALES— GmUnued. 
 
 wlien credit expires, 339 to 243. 
 to an agent sufficient, 343. 
 to a committee of a club, society 6t 
 
 party, 245. 
 to "be paid for otherwise than in cash, 
 
 demand necessary, 346. 
 vendor must deliver all that was sold, 
 and no more, or he cannot recover, 
 349. 
 unless the balance over is accepted, 
 349. 
 when bailee to seU becoines pirrchaser, 
 
 350. 
 what warranties are implied on, 351. 
 what words constitute a warranty on, 
 
 353. 
 warranties concerning quality upon, 
 353 to 367. 
 
 See Wabrantt. 
 
 by sample, 
 
 See Sample, Sales by. 
 
 implied warranty upon, 359. 
 
 executory contracts of, rules as to im- 
 plied warranty on, 358, 1513. 
 
 actions for breach of express or implied 
 warranty on, and the damages, 360. 
 
 of horses, rules relative to warranty and 
 fraud on, 364 to 370. ' 
 
 See HoKSES, Wakbantt. 
 
 may be both fraud and warranty in 
 
 same, 364 (4). 
 with aU faults, 369. 
 executed and executory sales, 83, 358, 
 
 576, 1513. 
 if vendor sue for price, he affirms sale, 
 
 583. 
 of goods pledged, how made, 618. 
 of goods on junior execution, confers 
 
 good title, 676, 677. 
 
 See BxEdoTioK. 
 
 when fraudulent as to third persons be- 
 cause no change of possession, 1598, 
 1599. 
 
 if vendee sues for the goods, he must 
 aver and prove he was ready and 
 willing to pay for them, 936rf (p. 511). 
 
 whether vendor is to deliver, or vendee 
 to go for goods, 963. 
 
 rules as to tender of goods sold, see 
 453, 1168. 
 
 allegation that goods were "sold" im- 
 plies delivery, 968. 
 
 when statute of limitations begins to 
 Dm in cases of, 1097. 
 
 allegation of, supported by proof of sal4 
 to third person for him, 1345. 
 or by a conversion, 1345. ' 
 
 damages in, 1507, 1507fl!, 1513, 1514. 
 where goods sold do not answer 
 description, 1513. 
 
 SALES — Continued. 
 right of return by either party on re- 
 cission for fraud or other reasons, 76, 
 80, 333, 347, 260, 264, 367, 1513. 
 
 See Goods sold and DBLrvERBD. Con- 
 tract. Title, &g. 
 
 SALVAGE, 
 implied contract to pay, 398. 
 •lien for, 596. 
 
 SAMPLE, 
 sales by, 351, 359. 
 whether vendee can return goods, for 
 
 breach of warranty on, 354, 359. . 
 when a question for the jiuy whether 
 
 sale was by, 359. 
 damages for breach of warranty on, 
 
 360. 
 
 SANITY, 
 is always presumed, 33, 1026, 1392. 
 if insanity is proved, it is presumed to 
 
 continue, 33, 1393. 
 evidence on questions of, 1035, 1036. 
 
 SATISFACTION, 
 
 of judgment, when a levy is not and is, 
 1578, 1614. 
 an arrest is a satisfaction, 1578. 
 
 SATUEDAT, 
 
 See Seventh Day Baptists. 
 
 SCHOOL BOOKS, 
 when exempt from execution, 1586 
 
 SCHOOLMASTEB, 
 right of, to punish his pupils, 507, note 
 
 %. 
 
 SEAL, 
 
 is presumptive evidence of a considera- 
 tion, 28. 
 
 does not prevent showing illegality of 
 consideration of an agreement, 28, 38. 
 
 estops a party from denying considera- 
 tion expressed in an agreement, 28. , 
 
 surrender of a sealed lease need not-be 
 under, 147. 
 
 when one partner may execute sealed 
 instruments for the firm, 198, 207, 
 208. 
 
 how contract under, may be modified, 
 318. 
 
 process may, but need not be under, 
 850. 
 
 how to be made and affixed, whether 
 of wax, &c , 891. 
 
 when necessary to a release, 1108, 1118. 
 
 statute of limitations on instruments un- 
 der, 1096. 
 
 when necessary lo an award, 1138. 
 
INDEX. 
 
 1061 
 
 SEABCH "WARRAJTT, 
 power to issue and service of, 668 to 
 
 670. 
 officer's riglits on, 669. 
 manner of executing, 669. 
 
 SEAT IN CHURCH, 
 when exempt from execution, 1586. 
 
 SECONDARY EVIDENCE, 
 when permitted, 1375 to 1385. 
 oath to prove its necessity, 1384. 
 
 See EviDBNOB. 
 
 SECRET PARTNERS, 
 
 See DoKMAHT Pabtnebsi PABiaraiRS aitd 
 Paetnbrship. 
 
 SECURITY, 
 given for judgment obtained on a 
 usurious contract, is valid, 65. 
 for usurious debt is void, unless the 
 usury is canceled, 67. 
 or the debt is held by a bona 
 fide holder, 67. 
 subsequent, for usurious agreement, 
 
 when good, and, when not, 67. 
 given by one of firm, when firm dis- 
 charged, 206, 1043. 
 upon issuing a warrant in favor of a 
 non-resident, 798, 813. 
 what is sufficient, 813, 813. 
 defendant may give, and procure 
 discharge from the arrest on the 
 warrant, 914. 
 giving of higher, old contract merged, 
 1043, 1144. 
 new note with new sureties, 1043, 
 
 1144. 
 not if the higher security is merely 
 collateral, 1043. 
 on adjournment, 1204 (71, 74 to 77), 
 1228 to 1227. 
 appeal, 1650 (354 to 358), 1653. 
 given by a constable on entering on his 
 duties and his sureties liability there- 
 on, 1689, 1641 to "1644. 
 taken by a constable, with plaintiff's 
 assent, from defendant arrested on 
 execution, 1648. 
 
 SeeBAiL. 
 
 SEDUCTION, . ,. . 
 
 actions for, not in justice's jurisdiction, 
 
 0- , . 
 
 past, a good consideration for a promise, 
 
 43. 
 
 SELLING, ^ , ., 
 
 and buying offices, agreements tor, void, 
 45, 394. 
 
 SERVANT, 
 werabl( 
 iistainei 
 
 See Mas.tbr and Servant. 
 
 EKVAJNT, ^ , 
 
 answerable to hiS master for damages 
 sustained by his negligence, 489. 
 
 SERVICE, 
 of notices, process, &g., how time of 
 computed, 71, 792, 861. 
 
 See TnnB. 
 
 and return of summons, 861 to 869. 
 how made, 863, 863. 
 
 when and how by copy, 863. 
 cannot be made by one deputed by 
 
 constable, 869. 
 constable may serve process in his own 
 
 favor, and charge fees, 869. 
 justice may depute one to make, except 
 of venire, 870. 
 deputy must make return, not 
 affidavit, of service, 870. 
 cannot charge fees, 870. 
 officer cannot break into dwelling to 
 make, 871. 
 
 See DWELLDTG-HOTTSE. 
 
 how to make, when admission into 
 
 dwelling refused, 871. 
 cannot be made on Sunday or election 
 
 day, 872. 
 and return of warrant, 873 to 887. 
 
 See Warrant. 
 
 of attachment, 887 to 903. 
 
 See Attachment. 
 
 SERVITUDES, 
 what and how created, 141. / 
 
 See Easements. 
 
 SET-OFF, 
 statutory provisions concerning, 1051. 
 factor not prejudiced by, agamst prin- 
 cipal, 168. ^ 
 in suit by auctioneer forgoods sold by 
 
 him, 171. 
 must be of claims arising on judgment 
 or contract, 1051 (1), 1053, 1074. 
 not of judgments on- attachments, 
 or where executions are not re- 
 turned, 1053, 1074. 
 nor where defendant is under 
 arrest on execution, 1074. 
 must be due to defendant in his own 
 
 right, 1053. 
 against the assignee of a demand, 1053 
 
 to 1056, 1061 to 1068. 
 by assignees, 1055, 1075. 
 not permitted when manufacturers' lien 
 is claimed, 1055. 
 ' when it may be of an unliquidated de- 
 mand, 1056, 1073. 
 may be of a demand accruing subse- 
 quent to plaintiff's, 1057. 
 not allowed where the claim accrued 
 
 after suit brought, 1057, 1075. 
 not allowed on bond for defendant's 
 maintenance, 1058. 
 nor in actions for torts, 1058. 
 for breach of warranty in sales, 
 1058. 
 
1062 
 
 INIPEX. 
 
 SET-OFF— CoJiimMeii. 
 
 on an open policy of insurance, 
 
 1058. 
 on an indemnity bond to an offi- 
 cer, 1058. 
 where debt barred by statute of 
 limitations, 1074. 
 in suit by pledgor, for improper sale of 
 
 pledge, 1058. 
 separate debt, not against a joint debt, 
 
 1059,1074; Code, 1 150. 
 in case of partnership dealings, -when, 
 1060, 1066. 
 of assignee of insolvent, 1067. 
 must be interposed at the first oppor- 
 tunity, 1068, 1069, 1071, 1074, 1075. 
 answer that set-oflf was not so inter- 
 posed, 1069. 
 if plaintiff objects to, and it is rejected, 
 it may be afterward interposed, 1069. 
 when defendant is authorized to com- 
 mence action by warrant, what the 
 defense must show, 1070. 
 omission to plead in former actions, 
 when and when not a bar, 1069, 1071 
 to 1076. 
 requisites of; when set up against execu- 
 tors and administrators, 1073. 
 judgment against them in such 
 cases, 1073. 
 certain' rules and cases in relation to, 
 
 1074. 
 one holding a joint and several demand 
 against two, not bound to set it off, in 
 suit by one, 1074. 
 answer of, 1076, 1077. 
 where judgment for, is for more than is 
 
 claimed, 1078. 
 not allowed where plaintiff discontinues 
 
 or is nonsuited, 1078. 
 may be allowed though plaintiff estab- 
 lished no claim, if cause is submitted 
 for decision, 1078. 
 
 SEVERAL CONTRACTS, 
 may be made, 212, 213. 
 rules relative to, 213, 213. 
 plaiutiff must perform on Us part, 217. 
 
 See CONTKACT. 
 
 SEVENTH-DAY BAPTISTS, 
 process not to be served on, on Satur- 
 day, under a penalty, 793, 852. 
 
 SEWING MACHINE, 
 when exempt from execution, 1586, and 
 on page 894. 
 
 SHARES, 
 agreement to work farm on, is not a 
 partnership, 183. 
 is a tenancy in common, 183, 619. 
 
 SHEEP, 
 remedy for, when killed by dogs, 641, 
 643. 
 
 SBlEEP— Continued. 
 
 See^ lHoGS. 
 when exempt from execution, 1586. 
 
 SHERIFF, 
 bonds taken by colore officii, void, iSa. 
 may make agreement with deputy to 
 
 divide fees, 45a. 
 liability of as bailee for goods taken by 
 
 legal process, 104 (11). 
 sales of land by, are in statute of frauds, 
 
 189. 
 implied warranty by, on sale of proper- 
 ty, 251, 1627. 
 collects his fees from the attorney who 
 
 employed him, 294. 
 when liable for money had and received, 
 
 307 (1, 6). 
 may sue for property on which he has 
 levied, 568, 572, 573. 
 deputy sheriff cannot sue for them, 
 
 572, 758. 
 receiptor of the goods cannot sue 
 
 for them, 575. 
 proof in actions by sheriff, 568, 572, 
 
 573. 
 damages in action against general 
 owner, 1515. 
 must sell subject to constable's prior 
 
 levy, or is liable to him, 572, 678. 
 liability of for levy on goods of a third 
 person noiingled with the defendant's, 
 659. 
 may command assistance in the service 
 of process, 672, 886. 
 rules relative to such cases, 672, 886. 
 when liable for neglect or abuse of his 
 
 trust, 684, 1644 to 1649. 
 when to show process on making ar- 
 rest, 686. 
 right to arrest in a dwelling-house, 687 
 to 691. 
 
 See DwELLnrG-HotrsB. 
 
 retake after an- escape, 691. 
 liability of for an escape, 692 to 694, 
 1644 to 1649. 
 damages in such case, 15Bli. 
 not where judgment or process was 
 
 void, 693a. 
 where it was irregular only, liable, 
 
 693a. 
 cannot recover from defendant 
 
 money paid for his escape, 694. 
 for false return, 695, 696, 867. 
 when statute of limitations be- 
 gins to run on claim for, 1100. 
 for misfeasance of deputy, 765. 
 presumed to be regularly in office, 1386. 
 
 See Constable, Officer, Pbocbss. 
 
 SHIPS AND VESSELS, 
 liens upon, 596. 
 
 for salvage, 298, 596. 
 
INDEX. 
 
 SHOVEL, 
 when exempt from execution, 1586. 
 
 SICKNESS, 
 an excuse for non-performance of an 
 agreement, 373, 1041. 
 and party may recover for wliat he 
 has done, 273, 1041. 
 
 SILVER, 
 coin may be levied on and not sold, but 
 returned as cash, 1592. 
 
 SINGLE CONTRACTS, 
 defined, 33. 
 
 SLANDER, 
 actions for not in justice's jm-isdiction, 5. 
 
 SLAVE, 
 may be an agent, 153. 
 one supposing himself such cannot re- 
 cover for his labor, 297. 
 
 SLIGHT NEGLECT, 
 
 See Neglect. 
 SOLVENCY, 
 misrepresentations relative to, a fraud 
 78. ' 
 
 when presumed and -when not, 1393. 
 
 SPECIAL AGENCY, -' 
 
 See Pkincipal and Agknt. 
 
 SPECIAL AGREEMENT, 
 defined, 315. 
 actions on, 315 to 330. 
 
 Bee AcTioirs, Contract. 
 
 SPECIAL PARTNERS, 
 who are, 184. 
 
 See Pabtneks and Paetnership. 
 
 SPECIAL PROPERTY,' 
 in chattels enables one to sue for it, 570. 
 defense that one has not, 571. 
 defendant must connect himself with 
 title in third person, 571. 
 ofBcer after levy has, 573. 
 mortgagee and pledgee has, 613, 616. 
 See Parties to Actions, Title to Goods. 
 
 1063 
 
 SPECIALTIES, 
 defined, 33. 
 
 accord and satisfaction of, 1145, 1147. 
 See Contracts, Alteration. 
 
 SPINNING "WHEELS, 
 when exempt from execution, 1586. 
 
 SPIRITUOUS LIQUORS, 
 effect of drinking of, by jury, before and 
 
 after submission of cause, 1314, 1318. 
 defendant must show license for sale of, 
 
 1343. 
 strong beer is, 1343. 
 
 SPOONS, 
 
 when exempt from execution, 1586. 
 SPRING OP WATER, 
 owner of soil cannot divert, from its 
 na,tural channel, nor dam it, 558 
 rules do not .apply to underground, 
 
 license may give right to divert or 
 dam, 558. 
 presumed after twenty years, 558. 
 
 STAGE COACHES, 
 responsibility of carriers by, 105 (8) 
 
 passengers by, how to govern them- 
 selves, 105 (8). 
 
 liability of carrier for baggage, 105 (8) 
 
 _ when -it ceases, 105 (8). 
 
 liability for damages by drunken driver 
 634a. 
 
 See Bailment, Cahbiek, Common 
 Carrier. 
 
 STANDING .TREES. 
 
 See Trees. 
 
 STATED ACCOUNT, 
 
 Bee Account, Stated. 
 
 STATUTE, 
 repeal of, will not render an agreement 
 
 void by, valid, 37. • 
 money paid on contract void by, mav 
 
 be recovered back, 307 (9). 
 agreements contrary to, when void, 393 
 
 to 396. 
 violation of right given by, furnishes 
 
 cause of action, 680. 
 effect of repeal of, when cause of action 
 
 and remedy given by, 778. 
 complaints in actions on, 947. 
 public and private defined, 948. 
 
 how pleaded, 948. 
 
 STATUTE OP FRAUDS, 
 
 See Frauds, Statute op. 
 
 STATUTE OF LIMITATIONS, 
 See Limitations, Statute op. 
 
 STAY OF PROCEEDINGS, 
 justice has no authority to grant, 1566 
 upon an appeal, 1650 (355 to 358)„16o3 
 
 STEALING, 
 private, presumptive evidence of ordi 
 nary neglect, 103. 
 
 STOCK BROKER, 
 
 Bee. Broker. 
 
 STOCKHOLDER, 
 if justice is related to a, he is disquali- 
 fied, 3. 
 
1064 
 
 INDEX. 
 
 STOCKHOLDER— CowimMerf! " 
 of corporation imder the manirfacturing 
 act of 1811, &c., severally, not ioiatly 
 liable, 1115. 
 
 STOLEN, 
 goods, cash, negotiable paper, &c., title 
 
 to, 231, 389. 
 action for, 304 (7), 314, 389. 
 See Pelont. 
 
 STOPPAGE IN TRANSITU, 
 rules in relation to, 234 to 238. 
 right of, confined to the vendor, 235. 
 
 when it can be exercised, 235. 
 
 when it terminates, 235. 
 does not rescind sale, 235. 
 when goods, for the purpose of, are 
 
 deemed on their passage, 336. 
 
 STOVES, 
 put up in a house not a part of the free- 
 hold, 1596. 
 when exempt from execution, 1586. 
 
 STRAW, 
 raised on farm, is not manure, 502. 
 
 STRA'SiS, 
 
 See EsTKAT. 
 
 STREET, 
 right to dig in, not triable by justice, 1196. 
 
 SUBMISSION, 
 
 See Abbiteatiost. 
 
 SUBPCENA, 
 for a witness on an application for an 
 
 attachment, 833. 
 to attend a trial, 1228 to 1234. 
 
 may be obtained from another jus- 
 tice, 1230. 
 seiTice of, 1231. 
 
 names in and when and by whom 
 inserted, 1229. 
 not binding on the witness without pay- 
 ment or tender of fees, 1382. 
 can be issued only to the same or an 
 
 adjoining county, 1333. 
 not necessary if witness attends with- 
 out, and is sworn, 1334. 
 witness attending under, privileged from 
 
 arrest, 879 (10), 1335. 
 issued by commissioner to examine wit- 
 nesses, 1258. 
 by fence viewers, 537 (43). 
 requiring witness to bring papers with 
 him, 1338. 
 
 See Witness. 
 
 SUBSCRIBING WITNESS, 
 proof of instrument by, 1366 to 1370. 
 when dispensed with, 1375, 1377 
 to 1379. 
 impeachment of, 1376 
 
 See Witness. 
 
 SUBSCRIPTIONS, 
 
 rules relative to, bv whom made, when 
 binding, &c., 126". 
 
 to form plankroad and railroad com- 
 panies, 136. 
 
 SUBSTANCE OF THE ISSUE, 
 to be proved, 1345 to 1349. 
 
 SUB-TENANT, 
 when action for use and occupation lies 
 against him, 336. 
 
 SUGAR-DISH, 
 when exempt from execution, 1586. 
 
 SUMMONS, 
 action commenced by, 780. 
 long and short described, 783. 
 long, when used, 784 to 788, 801. 
 general form of, by statute, 784. 
 returnable not less than six nor more 
 
 than twelve days, 784. 
 to be served at least six days before 
 
 return, 784, 861. 
 is issued on request, and without 
 
 proof, 785. 
 when may issue on a warrant, 786 
 787, 801, 806; 860. 
 partners must be named in, not name 
 
 of firm, 790. 
 if names plaintiflfs in representative cha- 
 I racter, complaint must follow it, 791. 
 if does not, complaint may he special, 
 
 complaint need not foUqw, 045. 
 
 time of return of, how computed, 793, 
 
 861. 
 when not to be returnable on Saturday, 
 
 793, 853. 
 place of return to be particularly stated 
 
 in, 794. 
 short, how different from long, 795. 
 
 when to be served and when return- 
 able, 795, 861. 
 
 when it may be issued, 795, 801. 
 
 afadavit and security for, 795, 796, 844. 
 
 when it or warrant may issue, 795, 860. 
 
 or attachment may issue, 843. 
 
 cannot be issued against a railroad 
 running through the county, 801. 
 if long, is isiued when short, should be, 
 
 error waived if defendant appears 
 
 and malces no objection, 653, 795. 
 directed to any constable of the county, 
 
 8500!. 
 to be in name of the people, 849. 
 may be in bad English or misspelled, 
 
 849. 
 on paper or parchment and in fair 
 
 character, 849. 
 unabbreviated and signed by justice, 
 
 and either with or without seal, 850. 
 with no blanks to be filled, 850. 
 need not show amount claimed to be in 
 I justice's jurisdiction, 851. 
 
INDEX. 
 
 SUMMONS— Coft^OTMef?. 
 if amount claimed in, is beyond jui'is- 
 
 diction, it is void, 851. , 
 
 if no cause of action is stated in, amount 
 is unlimited, and defendant must ap- 
 pear and object in proper case, 851. 
 must not be issued or made returnable, 
 or served on election day or Sunday, 
 853,873. 
 if returnable at too long a date, is void, 
 
 653. 
 •when to be endorsed, 854. 
 
 ■what sufficient, 854. 
 service of, 861 to 873. 
 constable should make, if he can, 861. 
 
 ■where to look for defendant, 861. 
 should be read to defendant, 863. 
 where reading evaded or waived, 863. 
 by leaving of copy, 863, 863. 
 cannot be made on Sunday or elec- 
 tion day, 853, 873. 
 may be by constable when he is 
 
 plaintiff, and fees charged, 869. 
 constable cannot depute one to make, 
 
 869. 
 justice depute one to make, without 
 
 fees, 870. 
 how made when admission to defend- 
 ant's house is forbidden, 871. 
 return of service, 864 to 869. 
 must be in writing, stating manner of 
 
 service, 864. 
 by one deputized by justice, 870. 
 in case of several defendants, 865. 
 what it must show, 866. 
 must be endorsed on summons, or 
 
 attached to it, 866. 
 constable liable for false, 867. 
 giveS the justice jurisdiction, 868. 
 when issued after service of attachment, 
 903. 
 
 form of in such case, and when re- 
 turnable, 903. 
 plaintiff must appear on return of, or 
 judgment cannot be given for him, 
 915. 
 not to issue for infant plaintiff 'without 
 appointment of guardian, 936. 
 how omission taken advantage of, 
 936. 
 against fictitious defendant, or one sued 
 
 by wrong name, 951. 
 to be issued against defaulting witness, 
 1241, 1343. , 
 
 8ee Witness. 
 
 defaulting juror, 1331. 
 
 See JuBT. 
 
 See Process. 
 
 SUNDAY, 
 what agreements and transactions on, 
 
 are good and what void, 50. 
 is a natu''al day, commencing at mid- 
 night, 50, 853. 
 
 134 
 
 106^ 
 
 SUWOKY—Ooniinued. 
 
 ratification of agreements made on; 50. 
 
 judicial proceedings on, 853, 873. 
 
 verdict may be received on, but judg- 
 ment not to be rendered till after, 
 1380. 
 
 not counted as a day between ser'vice 
 and return of process, 861. 
 
 service of process upon, void, 852, 873. 
 
 arrest on, on civil process, void, 880. 
 
 detention over, to arrest afterward, void, 
 880. 
 
 defendant may be arrested on, after an 
 escape, 880. 
 
 where the last day taken by justice for 
 rendering judgment is on, 1553. 
 
 SUNSET, 
 sales on execution not to be after, 1616. 
 
 SUPERINTENDENTS, * 
 of common schools, actions by, 746. ~ 
 of the poor, actions by, 746. 
 
 SUPERVISORS, 
 actions by and against, 746. 
 
 SUPRA PROTEST, 
 acceptance of bills and notes, 446. 
 
 SUPREME COURT, 
 has general jurisdiction, 649. 
 
 SURETT, 
 when cannot plead usury, nor recover 
 
 usury paid, 53. 
 may avail himself of his principal's 
 
 duress, 74. 
 agreement of, as affected by the statute 
 
 of frauds, 137, 129 to 132, 136. 
 actions for money paid by, 317 to 322, 
 324. 
 
 amount to be contributed by each, 334. 
 what costs and expenses are recovered 
 
 by, 318, 319. 
 recovery of interest by, 318. 
 where he has paid but part of the 
 debt, 319. 
 what is payment by, 319. 
 effect of alteration of note upon liabil- 
 ity of, 366. 
 
 giving time to, or release, or discharge 
 of principal or prior parties, 454 to 
 463. 
 discharge, &c., of accommodation ac- 
 ceptor, &c., 460. 
 who is surety under these rules, 455, 
 
 460, 463. 
 by whom release to be made, 458,459. 
 whether time can be extended by a 
 
 usurious agreement, 455. 
 discharge under banki-upt law, 456, 
 
 463. 
 where suretyship does not appear on 
 the face of the instrument, 455, 463. 
 not discharged if surety assents to re- 
 lease, &c., 460. 
 
1066 
 
 INDEX. 
 
 SVBETY—Contimied. 
 and creditor, each entitled to the benefit 
 
 of securities held by the other, 457. 
 
 rule does not apply to parties to notes, 
 . 457. 
 if one of several takes security, it enures 
 
 to the benefit of all, 457. 
 agreement to pay by, after discharge, 
 
 needs no new consideration, 460fls. 
 rule where principal neglects to sue or 
 
 collect after request by surety that he 
 
 do so, 461 to 464. 
 
 ■where note is joint and several, 463. 
 when each endorser and drawer is, 454. 
 when may be joined as party with prin- 
 cipal, 756, 
 
 constable and his sureties may be sued 
 together, 771J. 
 approval of, on attachment bonds, 890, 
 
 893. 
 wife cannot be, for husband's debt, 1030a. 
 not afiected by result of suit between 
 
 the creditor and his principal, 1086. 
 when statute of limitations begins to 
 
 run on payments by, 1097. 
 
 SURETY BOND, 
 action upon, cognizable by justice, 717. 
 
 SURGEON, 
 
 See Physician atto SirRQBOiir, Pbofes- 
 sioNAL Pbbson. 
 
 SURRENDER, 
 of lease, when valid by parol, 146, 147. 
 when to be in writing, 146, 147. 
 need not be under seal, 147. 
 canceling or destroying lease not 
 
 enough, 147. , 
 by operation of law, and instances of, 
 
 148, 149. 
 when assignment is a, 149. 
 of deed will not divest title, 147. 
 
 See Lease, Landlord and Tenant. 
 
 SURVEYOR, 
 deceased, when declarations of, evidence, 
 1411. 
 
 SURVIVING, 
 creditor sues without joining executor 
 
 or administrator of deceased, 748. 
 may join claim with one due to him 
 
 alone, 771. 
 person entitled to damages for a wrong 
 
 sues in his own name, 761. 
 
 SURVIVING PARTNER, - 
 his rights, 193. 
 
 See Paetneks and Pabtnership. 
 
 SURVIVORSHIP, 
 between joint tenants and tenants in 
 common, 619. 
 
 SWINE, 
 and food for them, when exempt from 
 execution, 1586, 1587. 
 
 SYMBOLICAL DELIVERY, 
 what is, 94. 
 
 See Dbltveet. 
 
 TABLE, 
 when exempt from execution, 1586. 
 
 TAKING, 
 detaining or injuring personal property, , 
 
 action for, 563 to 577. 
 action lies, although there is no wrong- 
 ful interltion, 565. 
 where there is unlawful intermed- 
 dling with, 566. 
 for a simple levy, although only the 
 
 right of defendant is sold, 567. 
 by sherifi" or constable for goods 
 
 levied on, 568, 573. 
 by executors and administrators for 
 their intestate's goods, 609. 
 former action of trover, rules in, 569, 
 
 635 to 630. 
 measure of damages for, 610, 633. 
 possession sufficient to warrant action 
 for, 570 to 574. 
 
 See Teovbe. 
 
 a promissory note, evidence and rules in 
 actions for, 633, 634. 
 
 See Action, Tboveb. 
 
 TALESMEN, 
 who are, 1387, note (3), 1390, 
 when summoned, 1387 (101). 
 may be challenged, 1390, 1394. 
 
 See JuET. 
 
 TAVERN-KEEPER. 
 
 See Innkeeper. 
 
 TAX, 
 when statute of limitations begins to 
 run on claim for property sold for an 
 illegal, 1097. 
 
 TEACHER, 
 of select or private school may recover 
 for his services, 395a. 
 defense against his claim, 395a. 
 discharge of pupil by, 395o. 
 right of, to punish pupils, 500, note. 
 
 TEAM, 
 what, and when exempt from execution, 
 with food for, 1586 to 1589. 
 
 TEAPOT, CUPS AND SAUCERS, 
 when exeml^t from execution, 1586. 
 
INDEX. , 1067 
 
 TECHNICAL TERMS, 
 in a contract may have their meanmg 
 shown, 109 (4), 1421. 
 
 TELEGRAMS, 
 contracts may be made by, 24. 
 when such a contract is complete, 24. 
 make sufficient memorandum under 
 
 statute of frauds, 127a. 
 damages for delay in transmitting, 1520&. 
 
 TENANT, 
 
 See Landlord and Tenant. 
 
 TENANT AT SUFFERANCE, 
 when entitled to benefit of statute rela- 
 tive to division fences, 528. 
 
 TENANT AT WILL, 
 who is, 145, 510. 
 
 to occupy the land in a reasonable man- 
 ner, 509. 
 not to cut timber, 510. 
 if he. does tenancy terminated and he 
 liable to action, 531. 
 when entitled to benefit of statutes rela- 
 tive to division fences, 528. 
 
 TENANT FROM TEAR TO YEAR, 
 who is, and his rights and liabilities, 338 
 to 841. 
 
 TENANT IN COMMON, 
 who is, and his rights, 619, 620. 
 
 who works farm on shares, 183, 619. 
 
 where two bills of sale or mortgages 
 are simultaneously given, 619. 
 of a tree growing on boundary line, 619. 
 each, entitled to possession of the joint 
 
 property, 620. 
 suits by one, against the other, 620. 
 when one, liable to the other, 620. 
 each may sell his individual interest, 
 
 620. . ^ 
 
 when one may sever and appropriate 
 
 his share, 620. 
 not liable to co-tenant for negligence, 
 
 620. 
 all should join in action for injury to 
 
 joint property, 759. 
 
 save where the undivided interest 
 of one is converted, 759. 
 one cannot release right of action, so as 
 
 to defeat the rights of the other, 759. 
 
 TENDER, ^ . „ 
 
 when it terminates lien for price ot 
 
 goods, 85. , , ,. 
 
 when it perfects conditional dehvcry 
 
 under statute of frauds, 97. 
 when it terminates liability of bailee, 
 
 104(11). ., ^. 
 
 when vendor must tender consideration 
 
 if he wishes to reclaim goods sold, 80, 
 
 238, 267. 
 by, acceptor or maker of note, saves 
 
 interest and costs, 416. 
 
 T'ENTHER-Oontinued. ' 
 by mortgagor to mortgagee, effect of, 
 , . 618, 1159, 1166. 
 
 of amends for injury damage-feasant, 699. 
 and payment into court, statutory pro- 
 visions relative to, 1148, 1181. 
 
 See Payment into Court. 
 
 course to be pursued in relation to, 1149 
 
 to 1152. 
 taking money from court, waives irrog 
 
 ularity of, 1151. 
 proceedings after payment, 1152, 1153. 
 effect of, 1154, 1155. 
 admits cause of action to extent of 
 tender, 1154, 1155, 
 creditor entitled to the money tendered 
 
 or paid into court, 1152, 1180. . . 
 may elect to take it at any time, 1181, 
 
 1183. 
 answer of, what it may contain, 1156. 
 upon a demand payable in chu.ttels, 452, 
 1158, 1161, 1166, 1168. 
 is equivalent to payment, 1158. 
 title thereafter in fenderee, 1158. 
 liability of tenderer therefor, 1158. 
 places the articles at the risk of ten- 
 
 deree, 1158, 1161. 
 of goods "such as suit," means such 
 
 a suit payer, 1166. 
 tenderor must do every thing neces- 
 sary on his part, or tender is 
 imperfect, 1161. 
 should be in middling goods of that 
 sort, 1106. 
 upon a money demand only stops inter- 
 est and costs, 1159. 
 does not pay debt, 1159. 
 upon a mortgage destroys the lien only, 
 
 1159, 1166. 
 -by whom it can be made, 1160. 
 to whom it can be made, 1174, 1175. 
 how it is to be made, 1160. 
 when actual, excused, 1160. 
 must be without qualification or condi- 
 tion, 1162. 
 no receipt to be required, 1162. 
 on note or bill, they may be required 
 
 to be given up, 1162. 
 when deed may be required on, 
 1162. 
 when of a gross sum to several credit- 
 ors, 1163. 
 on one of several items of a demand, 
 1163. 
 of more than is due, is valid, 1163. 
 
 when mixed with other moneys, 1163. 
 when payment is to be made in one of 
 several things at creditor's election, or 
 in such as suits, 1163, 1166, 1168. 
 what money is a lawful, and in what- 
 sums, 1164 to 1166. 
 as to United States currency, or 
 "greenbacks," 1164as. 
 fractional currency, 11645. 
 
1068 
 
 INDEX. 
 
 T^'^JiTSBr-Coniimied 
 
 when in bank notes is good, 1163, 
 1165. 
 when money becomes uncmrrent or of 
 leas value, 1166. 
 answer in such case, 1166. 
 question whether money is brought 
 into court, is for the court to decide, 
 1166. 
 answer of, what to aver, 1166, 1177 to 
 1180. 
 supported by proof of waiver of, 
 
 1166. 
 to a money demand, how defeated, 
 1179. 
 when and wliere to be made, 1167 to 
 1170. 
 of rent, 1167. 
 
 on money demand, when neither 
 time or place is mentioned, 1170. 
 when demand or request is neces- 
 sary before, and when to be 
 made, 1170 to 1174. 
 contract payable in specific articles 
 and no place mentioned, 1168. 
 the tenderer should wait for the party 
 
 tUl sun-down, 1169. 
 it is no excuse for not receiving, that 
 the demand has been left for collec- 
 tion, 1175. 
 absence of the creditor, a refusal, 1176. 
 if debt not discharged must be kept 
 good, 1178. 
 and debtor always ready to pay, 
 1178, 1179, 1183. 
 at common law, when made, 1181. 
 successful party has costs, 1181. 
 proceedings upon a, should be entered 
 
 by the justice in his docket, 1183. 
 for casual or involuntary trespass or in- 
 jury, 1148 (30), 1181, 1184. 
 
 evidence and judgment in, 1184. 
 proof of, supports answer of payment, 
 1345. 
 
 THEEATS, 
 when duress by, avoids contracts, 73 to 
 76. 
 
 THRESHING MACHINE, 
 not exempt, as a tool, from, execution, 
 1588. 
 
 TIMBER, 
 
 See Trees. 
 
 TIME, 
 
 of service of notice, how calculated, 71. 
 
 when note becomes due, how deter- 
 mined, 437, 438. 
 
 how calculated in service of process, 
 793; 861. 
 
 when day commences and ends, 50, 853, 
 
 day on which cause of action accrues, 
 excluded from computation under 
 statute of limitations, 1097. 
 
 TIME— Continued. 
 for making and delivery of an award, 
 
 1136. 
 of adjournment, how calculated, 1305. 
 of application for a commission, how 
 
 calculated, 1349. 
 how calculated in computing interest, 
 1536. 
 for entering judgment, 1553. 
 may be extended by agreement, 
 1553. 
 for serving notice of appeal, 1651. 
 of commencing actions, 731 to 743, 
 1093 to 1107. 
 
 See Limitations, Statute of. 
 
 TITLE, 
 of goods on sale, 83 to 88, 336 to 333, 
 334, 576 to 589. 
 
 is in vendor till sale is perfected, 83. 
 none passes on a mere agreement to 
 
 purchase, 83. 
 purchaser must also comply with 
 
 terms of sale, 83. 
 price payable in cash, if no agree- 
 ment otherwise, 83. 
 if sale on credit, title passes, 84. 
 
 unless goods are yet to be weighed, 
 measured, counted, &c., 84. 
 
 when title passes, though something 
 is yet to be done, 84. 
 if part delivered, title to those passes, 
 
 84. 
 passes as soon as bargain is struck, 85. 
 when yet to be manufactured, 84, 577, 
 
 578. 
 made to order by a mechanic, 577, 
 of crops and farm or dairy products 
 
 yet to be raised or made, 577. 
 where one takes materials to manu- 
 facture, 578. 
 wrongfully taken and manufactured, 
 
 579, 580. 
 if it has passed, vendor may recover 
 
 for price, though goods are destroy- 
 ed in his possession, 85. 
 to pledged and mortgaged property, 
 
 100, 613, 616. 
 when payment necessary, 336. 
 effect of delivery upon, 336 to 330, 576. 
 where payment is evaded, 337. 
 when terms are waived, 336, 330. 
 where goods have been tortiously or 
 
 fraudulently purchased, 331, 581 to 
 
 584. 
 where they have been purchased by 
 
 act amounting to a felony, 581, 583. 
 where fraudulent vendee has sold to a 
 
 bona fide purchaser, 331. 
 where goods have been stolen, ^ or 
 
 negotiable paper, cash and bank 
 
 bills, 331. 
 in what cases vendor afBrms the sale, 
 
 338, 683. 
 where sale is conditional, 330a, 1591. 
 
INDEX. 
 
 1069 
 
 TITL'R-Gontinued. 
 
 rescission of fraudulent sale, and re- 
 turn of consideration, 76, 80, 233, 
 247, 360, 364, 367, 1513. 
 
 in sales upon credit, 334. 
 
 subject to right of stoppage, m tran- 
 situ, 334 to 338. 
 
 warranty of, on sales, 351, 1530, 1C37. 
 damages on breach of, 1530. 
 
 by accession of goods, 579. 
 
 by confusion of goods, 580, 585. 
 when goods are intermixed, 580. 
 
 of property converted passes on satis- 
 faction of judgment for it, 583, 633. 
 upon which repairs are made, 584. 
 
 by gift, 586. 
 
 of increase of animals loaned or let to 
 hire, 587. 
 
 where bailee is to return same pro- 
 perty, 588. 
 
 is to return same or other property, 
 588. 
 
 by purchase from mortgagee, 618. 
 
 where debtor delivers a note to his 
 creditor to collect and apply on the 
 debt, 634. i 
 
 to paid promissory note, 624. 
 
 of married woman to her goods used 
 in her business, 1080a. , 
 
 after a tender of goods, 1158, 1161. 
 
 Bee Tender. 
 
 possession, prima facie evidence of, 
 570. 
 
 See Presumption. 
 
 of a constable by virtue of a levy, 
 
 573,573. 
 of a purchaser on a sale on execution, 
 
 574. 
 to real estate : 
 different degrees of, defined, 733. 
 not divested ,by surrender or destruc- 
 tion of deed, 147. 
 possession is presumptive evidence 
 
 of, 530, 732. 
 actions for not in justice's jurisdiction, 
 
 5, 530, 723 to 729, 1193. 
 
 when it is in question and practice 
 relative to, 733 to 739, 1193 to 
 1301. 
 possession is not, and justice may try 
 
 the question, 530, 733, 734. 
 
 what is sufficient, 520. 
 right of possession is, and justice can- 
 not try it, 530, 733, 737. 
 
 a dedication is, 1196, 1196fls. 
 
 public or private way is, 734, 1194, 
 1196. 
 
 an easement is, 1194. 
 cases where and where not in question, 
 
 734, 1194 to 1197. 
 a license is not, 143, 507, 1195. 
 where the action is for catting and 
 
 taking timber, 725. 
 when deeds or leases may be given 
 
 TlTL'E—ConUnued. 
 
 in evidence in justice's ' court, 530, 
 735. 
 
 must appear from plaintiff's own 
 showing and be disputed by the 
 defendant, 735, 1193. 
 
 consent of parties will not give jus- 
 tice jurisdiction of cases involvino- 
 title, 19, 738. 
 
 defendant must plead, or justice's 
 juiTsdiction is not affected, 1193. 
 answer of, may be put in after issue 
 joined, 1193. 
 
 may be put in, in all cases in- 
 volving, 1194. 
 
 rule as to, applies where title is in 
 stranger through whom the parties 
 claim their rights, 1194. 
 
 pleadings in cases of, to be substanti- 
 ally alike in justice's and supreme 
 court, 1197, 1300. , 
 
 undertaking must be given on plea 
 of, 1198. 
 
 to be retained by justice, 1198. 
 need not be under seal, 1198. 
 should state surety's residence, 
 1198. 
 
 description of premises in the com- 
 plaint, 1199. 
 
 answer may set up, as to part of com- 
 plaint, 1199. 
 
 See Contract, Sale. 
 
 TONGS, 
 when exempt from execution, 1586. 
 
 TOOLS, 
 and implements of a mechanic, exempt 
 
 from execution, 1586, 1588. 
 what are not, and what are exempt, 
 
 1588. 
 working, when exempt, 1586, 1586o, 
 
 1588. 
 
 TORT, 
 
 waiver of, and suit on implied kgree- 
 ment, 338, 347, 348, 303, 306, 646, 683, 
 730, 777, 779, 1345. 
 
 in actions for, all or any of the wrong- 
 doers may be made defendants, 767. 
 
 if but one is served with process, judg- 
 ment goes against him only, 859. 
 
 set-off not allowed in actions for, 1058. 
 
 actions for, not revived by an acknowl- 
 edgment, 1105. 
 
 satisfection by one wrong-doer dis- 
 charges all, 1147. 
 
 one of several defendants, sued for a, 
 may be discharged, 1367. 
 judgment should not be entered till 
 cause is decided, 1367. 
 
 interest recoverable in actions for, in 
 discretion of justice or jury, 1538, 
 1531a. 
 
 damages in actions for, 1538 to 1533. 
 
 See Damages. 
 
1070 
 
 niDEX. 
 
 TOUT— Continued. 
 new actions may be brought for, as 
 often as wrongs are repeated, 1533. 
 
 See Waiter. 
 
 tOWN CLERK, 
 when papers filed with, are eyidence, 
 1357. 
 how authenticated, 1359. 
 
 TOWN MEETING, 
 process not to be served on the day of a, 
 
 873 
 
 TOWN OFFICERS, 
 actions by and against, 746. 
 
 TOWNS, 
 
 adjoining, when towns are such, 3. 
 suits by, before what justice to be 
 
 brought, 3. 
 
 against, to be sued in name of, 746. 
 
 TRADE, 
 
 contracts in restraint of, when good-and 
 when not, 46 to 49. 
 
 TRADESMEN, 
 lien of, 593, 607. 
 
 TRANSCRIPT, 
 of proceedings before justice, and from 
 his docket, when evidence, 1376, 1353 
 to 1355a. 
 
 cannot be contradicted, 1855. 
 of judgment to be delivered to party on 
 request, 1553. 
 
 filing of, to acciuire a lien on real 
 estate, 1553. 
 makes the judgment one of the 
 county court, 1553, 1570. 
 execution upon, 1570, 1571. 
 contents and form of, 1553, 1555. 
 may be made after justice's term ex- 
 pires, 1555. 
 what prospective costs included in, 
 and in judgment, 1555. 
 
 TRANSITU, 
 stoppage in, rules in relation to, 334 to 
 338. 
 
 TREBLE COSTS, 
 
 See Double Costs. 
 
 TREES, 
 
 gi'owing, are real estate, 139, 503. 
 when are personal property, 503. 
 
 agreement for sale and delivery of 
 standing, is not one for work and la- 
 bor, 89. 
 is in statute of frauds, 89. 
 
 Tight to, growing in highway, 533. 
 
 growing on boundary hue belong to ad- 
 jacent owners, 619. 
 otherwise, if trunk on one side. 
 
 TREEB—Continved. 
 
 though the roots extend to the 
 other side, 619. 
 trover lies against one who cuts them 
 
 down, 635. 
 when action for cutting or taking, is in 
 
 justice's jurisdiction, 736. 
 damages for destroying, 1531&. 
 
 TRESPASS, 
 when an agreement to indemnify 
 
 against a, is good, 40. 
 damage implied in aU cases of, on real 
 
 estate, 505, 516, 553. 
 on lands must be with some degree of 
 
 fault, 516, 518. 
 casual or involuntary, by one's self or 
 animals, 538 to 543, 1181, 1184. 
 tender for, 1181, 1184. 
 by negligence, or through ignorance, 516, 
 where one enters on land with a crowd, 
 
 516. 
 not where one enters lands of another 
 because highway is founderous or im- 
 passable, 517. 
 on real estate, by whom brought, 519, 
 531, 533, 534. 
 when against owner of land, 519. 
 by owner against tenant at will, 
 
 531. 
 by owner of soil of high way, 533. 
 
 not By village trustees, 523. 
 by trustees of religious society, 
 
 533. 
 by owner of leasehold interest, 
 534. 
 by animals or chattels of another, 
 536 to 539, 533, 535 to 543, 700. 
 depasturing in highway, 538. 
 one having possession of, liable, 
 540. 
 in fishing 'or hunting on lands ot 
 
 another, 545 to 547. 
 none in entering on land of another in 
 pursuit of ravenous beasts, 563. 
 but may not dig for them, 563. 
 infants liable for, 757, 764, 1033. 
 may recover less than alleged in the 
 complaint, 1345. 
 for acts before and since time al- 
 leged in complaint, 1345. 
 
 See Rbal Property, Plaintipf, De- 
 pendant, Parties, &c. 
 
 TRESPASSER, 
 promise to pay a, for improvements 
 
 not binding, 116. 
 who enters on land with a crowd, 516. 
 cannot acquire or confer a lien, 607. 
 knowledge and acts of one, bittd his co- 
 trespasser, 765. 
 
 TRESPASSER PROM THE BEGIN- 
 NING, 
 Who is a, and instances of, 514, 515, 704. 
 
INDEX. 
 
 TRIAL, 
 ''^^o^o J"®*^*'^ without a jury, 1263 to 
 justice acts as both judge and jury, 
 
 cannot decide on his own know- 
 ledge, 1322. 
 before justice or jury, 
 justice should dismiss cause if he is 
 
 related, 1264. 
 if related his judgment, though by 
 consent, is void, 1264, 1548. 
 
 ion 
 
 See Apfinitt, CoNSANauiNiTy. 
 
 defendant must submit to non-suit 
 before submission of cause, 1265, 
 
 if defendant does not appear, plaintiff 
 must prove his case, 945 (8), 1266, 
 
 one of several defendants in action 
 for tort may be discharged before 
 cause is submitted, 1367. 
 judgment not to be entered till 
 final judgment,- 1267. 
 if defendant does not appear cannot 
 adjourn to another place, 1268. 
 if he appears may be so ad- 
 journed without his consent, 
 1368. 
 , justice misleading party as to time of 
 trial, a cause for reversal of his 
 judgment, 1269. 
 justice who tries cause to administer 
 oath to witnesses, 1270. 
 cannot be sworn or give evidence 
 except by consent, 1270. 
 when a cause may be held open. 
 
 See Holding Open, &c. 
 nonsuit, when judgment of to be 
 
 given, 1365, 1371 to 1275, 1314. 
 when judgment for the plaintiff to be 
 given, 1271. 
 for the defendant, 1271. 
 proceedings must be entered in the 
 
 justice's docket, 1274, 1375. 
 if damages found exceed justice's 
 jurisdiction, plaintiff may remit, 
 1274. 
 which party opens and closes, 1306, 
 1307, 1409. 
 justice's discretion in regard to, 
 1499. 
 oath to witnesses, 1306. 
 order of proof, 1306, 1497 to 1504. 
 summing up by counsel, 1307. 
 receiving evidence after the parties 
 have closed, 1309 to 1313. 
 before a jury, statutory provisions con- 
 cerning, 1277. 
 must be tried by jury if venire 
 issued, except by consent, 1285. 
 when to be demanded, 1277. 
 venire, when and how issued, 1278. 
 qualifications of jurors, 1378, 1279. 
 
 TRIAL — ConUnued. 
 
 "Il82:i28r^^"^^"'^y --«-*. 
 challenges of jurors, 1390 to 1305 
 conduct of the jury, 1814 1317' 
 1318,1329. "' ' "^'' 
 
 oath to jurors, 1305. 
 justice may, or not, charge jury, 
 
 withdrawal of a juror, 1308, 1313 
 does not terminate suit, 1308. 
 
 adjournment of cause on, 1308. 
 discharge of jury does not bar 
 another action, 1308. 
 when juror is taken ill and in 
 similar cases, 1313. 
 oath to constable, 1315, 1316. 
 receiving evidence, after iurv has 
 
 retured, 1323. 
 deliberation of the jury under 
 charge of a sworn constable, 1315. 
 jury may retire without a constable 
 by consent, 1317. 
 cannot find a verdict by lot, 
 1318. ■' ' 
 
 When it will not vitiate, 1318. 
 are judges of the law and fact, 
 1319. ' 
 
 what papers may be taken bv 
 
 them, 1319. 
 cannot themselves examine a 
 
 witness, 13] 9. 
 as to inspection by of property in 
 
 dispute, 1319. 
 dehvering letters or writing to, is 
 
 erroj^, 1321. 
 justice, parties or strangers not 
 to converse with, after they 
 retire, 1322 to 1325. 
 should not see a law treatise after 
 
 they retire, 1322. 
 not agreeing, may be discharged 
 and a new venire issued, 1325. 
 verdict of is unanimous finding, 
 1326. ^ 
 
 must be general, 1326. 
 when double and treble dam- 
 ages are given, 1336. 
 how delivered and form of, 
 1327. 
 should be called on return into 
 
 court, 1327. 
 polling the, 1338. 
 verdict delivered on Sunday, 
 judgment entered the next 
 day, 1330. 
 justice's discretion as to matters arising 
 on, 1498 to 1505. 
 See Justice, Jtirt , Venire, Discketion. 
 
 TRIERS, 
 on challenge of jury, appointment of 
 and trial by, 1300 to 1804. 
 
 TROVER, 
 right to recover in, exists under Code, 
 
1072 
 
 INDEX. 
 
 'i'ROTEBr— Continued. 
 
 notwithstanding abolition of form of 
 action, 630. 
 action of lies, , though, there was no 
 
 wrong intent, 565, 631, 635. 
 for sale of third person's goods on exe- 
 cution, 565. 
 when and by Whom brought, 563 to 
 574, 575, 576, 577, 630 to 631. 
 by officer after levy, 568 to 574. 
 evidence in his action, 568 to 
 574. 
 defendant cannot show title in third 
 person unless he connects himself 
 with it, 571. 
 possession is sufficient evidence of title 
 
 to sustain action, 570. 
 
 against whom brought, 565 to 568, 635. 
 
 for unauthorized levy, 565 to 568, 
 
 635. ; 
 
 where officer takes property described 
 
 y in the writ, 635. 
 
 judgment and satisfaction transfers 
 
 title, 583, 632. 
 in case of confusion of goods, 585. 
 when sale by lien-holder is a conver- 
 sion, 608. 
 action of, by lien-holder, damages in, 
 610. 
 where goods have been returned, 
 
 611, 623, 636. 
 where goods have been used con- 
 trary to agreement, 611, 635, 637. 
 when conversion implied from wrong- 
 ful detention of goods, 612. 
 by joint tenant or tenant in common, 
 
 620. 
 for converting promissory note, evi- 
 dence in 623. 
 for timber after it is cut, 635. 
 for conversion by an agent, 635. 
 conversion by bailee setting up title in 
 third person, 635. 
 rule does not apply to a common 
 carrier, 635. 
 when demand necessary and when not, 
 before bringing action of, 635. 
 none needed where there is an ac- 
 tual conversion, 635. 
 when neglect to deliver is a conver- 
 sion, 625. 
 demand and refusal are only evidence 
 of a conversion, which may be rebut- 
 ted, 636. 
 of one partner, when enough, 627. 
 of one joint possessor is enough, 
 
 637. 
 of one co-tenant not sufficient, 637. 
 of a servant, when enough, 637. 
 where one came lawfully into pos- 
 session, 635, 628. 
 some wrongful act must be 
 shown, 638. 
 until conversion, owner may sell prop- 
 erty, and purchaser may sue after 
 demand, 628. 
 
 TROVEE-^Corafetted 
 slight interference with another's prop- 
 erty all that is necessary to sustain 
 action of, 639. 
 all the owners of the property must 
 join in action of, 759. 
 except when an undivided interest 
 is converted, 759. 
 complaint for, 970, pp. 519, 530. 
 may recover for less than is alleged, 
 in, 1345. 
 one of two joint tenants or tenants in 
 common cannot release action of, 759. 
 infant liable in action of, 764, 1033. 
 when statute of limitations begins to 
 
 run in cases of, 1097. 
 alleigation of sale supported by proof of 
 
 conversion, 1345. 
 damages in actions of, 610, 623, 1538, 
 1529. 
 interest when allowed, 1533, 1528a, 
 1531a. 
 
 See Action, Takena, &c. 
 
 TBUSTEBS, 
 of a religious society may bring trespass 
 for injury to church property, 523. 
 cannot sue one of their own num- 
 ber, 767a. 
 of express trust, need not join those 
 beneficially interested as plaintiffs, '747. 
 of school districts, actions by and against 
 
 746. 
 when statute of limitations begins to run 
 on claims against, 1097. 
 
 TURNPIKE COMPANY, 
 responsible for injuries occasioned by 
 negligence, 634. 
 
 u. 
 
 UMPIRE, 
 
 Bee Arbitration. 
 
 UNCURRBNT MONEY, 
 paid to borrower, when and when not 
 usurious, 59. 
 
 UNDERTAKING, 
 to be given by defendant as plea of title, 
 
 1198. 
 need not be under seal, 1198. 
 
 nor signed by defendant, 1198. 
 should state surety's residence, 1198. 
 
 See Security. 
 
 UNITED STATES OPPIGERS, 
 privileged from arrest, 879. 
 
 UNKNOWN DEPENDANTS, 
 how sued, 780. 
 
 UNLIQUIDATED ACCOUNT, 
 defined, 1524. 
 
 when interest recoverable on,.and when 
 not, 1524. 
 
INDEX. 
 
 1073 
 
 UNLIQUIDATED DEMAND, 
 defined, 1056, 1073. 
 when may be set off, 1056, 1073. 
 
 UNSOUND MIND, 
 who are persons of, 83. 
 care of vested in the supreme court, 83. 
 
 See Ltjhatic. 
 
 USAGE, 
 of bauJi, party dealing with, bound to 
 
 know, 433. 
 effect of on written agreement, 1430. 
 
 See Custom. 
 
 USE AND OCCUPATION, 
 statute relative to, 384. 
 action for, 334 to 345. 
 must be founded on contract, express 
 
 or Implied, 335. 
 there must be a lease and the relation 
 
 of landlord and tenant, 335. 
 does not lie where defendant enters 
 imder agreement to purchase, 335. 
 unless the agreement is void, 335. 
 when reasonable rent recovered, 335. 
 when tenant can, and when he cannot 
 dispute the landlord's title, 335, 339, 
 1395, 1403. 
 cannot recover for, where occupation 
 was without permission; must sue 
 for the wrong, 335. 
 where lease is void, and no possession 
 
 taken, no action lies, 335. 
 in absence of agreement rent is not due 
 
 till the end of the term, 335. 
 action for against sub-tenant, 336, 344(1. 
 against assignee for benefit of credi- 
 tors, &c., 336. 
 where landlord sells the land, or as- 
 signs the lease, or dies, 836a. 
 where tenant enters imder a sealed 
 
 agreement for a lease, 337. 
 against tenant holding over his term, 
 338. 
 
 from year to year, 338 to 341. 
 new lease implied at the same price, 
 338, 340. 
 
 imless there is a new agreement 
 to vary it, 340. 
 how lease of tenant from year to year 
 
 terminated, 339. 
 if premises let for unlawful purpose, as 
 for prostitution, or the landlord has 
 notice they are so used, no action lies, 
 341. 
 evidence in action for, 342. 
 what is not a waiver of forfeiture ot 
 
 lease, 343(J!. ' , , 
 
 where tenant enters and refuses to ac- 
 cept lease, 343. 
 taking key is sufficient occupancy, d4d, 
 
 344. 
 actioii for, where buildings are destroy- 
 ed, 344. 
 
 135 
 
 USE AND OCCUPATION— Corefo'Tiwd 
 rule relative to, by statute in New 
 York, 344. 
 no action lies after tenant is evicted un- 
 der the statute, 344, 3446. 
 nor where the title is in dispute, 344. 
 nor where there has been no occupa- 
 tion ; action then is brought on the 
 lease, 344. 
 where there has been an eviction, 344a. 
 eviction defined, what constitutes it, 
 344a!. 
 
 rules relative to, 344ffl, 3445. 
 as to implied agreements that premises 
 are tenantable, 844c. 
 that either party shall make repairs, 
 344c. 
 where landlord agrees to, but does not 
 
 repair, rights of -tenant, 344d 
 tenant's damages, MM. 
 complaint for, 969. 
 
 See Lease, Landlord and Tenant, 
 
 Kent. 
 USURY, 
 contracts tainted with, void, 53. 
 
 rules in relation to, 53 to 68. 
 defined, 53, 53. 
 
 is an unconscionable defense, 53. 
 same rules in pleading, as in other cases, 
 
 53. 
 right to set up, personal to borrower 
 
 and privies, 53. 
 when endorsers cannot plead it, 53. 
 corporations, joint stock companies and 
 associations cannot plead, nor recover 
 back money paid, 58. 
 has reference to loan of money or some- 
 thing to be returned in kind, 53. 
 instances of this rule, 53. 
 no usury when the thing itself is to 
 be returned, 58. 
 when loan depending on an uncertain 
 event is not, 54. 
 is made in foreign country, 55. 
 is to pay a greater Sum, or a sum in 
 
 gross, if interest is not paid, 56. 
 agreement is that principal shall be 
 due if an installment is not paid, 
 56. 
 must be an intent to take, 57. 
 intent is a question of fact, 59, 64 
 where reservation of greater interest 
 is by mistake, no usury, 57. 
 by adoption of erroneous rule of 
 calculation, is usurious, 57. 
 where excess is trifimg, presumed by 
 mistake, 57. 
 ignorance of the ,law is no defense, 57. 
 if no usury taken, usurious intent un- 
 
 material, 57. 
 may be paid-in cash, or anythmg else, 
 
 58. 
 enough if there is agreement to pay, 68. 
 agreement to pay, may be in same, or 
 another instrument, or by parol, 58. 
 
1074 
 
 HTDEX. 
 
 VSURY— Continued. 
 a note ante-daited, with interest, no evi- 
 dence of, 59, 1522. 
 
 nor reservation of interest oftener than 
 yearly, 59. 
 taking interest in advance is not, 59. 
 
 nor for days of grace, 59. 
 ■when taking compound interest is, and 
 
 is not, 59, 1522. 
 when reservation of usual exchange is; 
 
 and is not, 59. 
 where loan is in uncurrent money, 59. 
 giving note on interest for a demand 
 
 not bearing interest is not, 59. 
 sale of valid note or mortgage is not, 
 
 60, 61. 
 exchange between two persons of their 
 notes for equal amounts is not, 60. 
 exception to this rule, 60. 
 where notes are of unequal value is, 
 60. 
 accommodation notes sold at usurious 
 rales are void for, 63. 
 if maker certifies paper was given for 
 value, he is estopped from setting 
 up usury, 62, 1402. 
 sale of one's own credit is not, 62. 
 factor's charge for per centage on sales 
 
 and advances is not, 62. 
 lender cannot charge for his trouble, as 
 a condition for loan or forbearance, 
 63. 
 
 agent of lender may, though he called 
 himself the principal, 63. 
 artifices to cover, do not render agree- 
 ment valid, 64. 
 one of several joint debtors may plead, 
 
 64. • 
 question whether contract is infected 
 
 with, one of fact, 59, 64. 
 judgments on contracts infected with, 
 65. 
 
 security given on such judgments, 65. 
 where judgment is by confession, 65. 
 subsequent usurious agreement does not 
 aflfect one originally valid, 66, 67. 
 in such case the subsequent agreement 
 is void, 66. 
 subsequent security for usurious agree- 
 ment is void, 67. 
 unless original usury is canceled, 
 
 67. 
 given to Sorea.^ holder of usurious 
 paper, is valid, 67. 
 lender cannot claim that obligation taken 
 
 in payment is usurious, 67. 
 borrower on usurious terms may avoid 
 assignment of secmities as payment, 
 
 agreements to extend time of payment 
 of demand on usurious premium paid 
 for forbearance, effect, of on principal 
 and on sureties, 118, 455, and in note 
 (6). 
 
 bona flde holder of bill or note infected 
 with, cannot recover, 393. 
 
 VALUE, 
 when, may be proved by opinion, 1475. 
 
 VARIANCE, 
 
 between pleading and jwoof, when dis- 
 regarded, 945 riO), 1346 to 1349. 
 
 in regard to allegations of time and 
 place, when disregarded, 953. 
 
 describing a mare as a horse is not a, 
 964. 
 
 VEGETABLES, 
 gi'owing, are personal property, 89ffl, 
 
 503,1595,1596. 
 when they go to the heir, 503. 
 when exempt from execution, 1586, 
 
 1586a. 
 
 VENDEE, 
 who is, 82. 
 
 rights of, in case of fraud, 76, 354, 364, 
 267. .... 
 
 liable for agent's fraud, 77. 
 
 must rely on his own judgment, or 
 make inquiries, or exact warranty, 
 79,255,257. 
 
 law protects, against unfairness and 
 fraud, 79.' 
 
 is not defrauded if he knows representa- 
 tions to be false, 79. 
 
 vendor, if he rescinds sale, must restore 
 vendee to his situation before agree- 
 ment if possible, 80,233,347, 360, 364. 
 
 infant, liable for goods purchased by 
 fraud on credit, 80. 
 
 title of, on sales, 83 to 86, 226 to 233, 
 234, 576 to 589. 
 
 See Title, &c. 
 
 when liable for price of goods, 85, 86. 
 when he is one in good feith, 233. 
 must rely on warranty, if there is no 
 fraud, 354. 
 
 See Pbatjd, Sales, Title, Vendor 
 
 VENDOR, 
 
 defined, 82. 
 
 may refuse to deliver in case of fraud, 76. 
 
 liable for fraud of agents, 77. 
 
 must not conceal defects, nor use arti- 
 fice, nor make misrepresentations, 79, 
 253,354,364,268. 
 
 need not enumerate all the defects, 79. 
 
 may recommend his goods and exagger- 
 ate their value, 79, 252. 
 
 may reclaim goods purchased of him by 
 fraud, or sue immediately for their 
 value, 80, 231, 238. 
 
 if he rescinds contract for vendee's fraud, 
 must restore him to his old condition, 
 as far as possible, 80, 233, 247,260. 
 
 when title of, passes on sale, 83 to 88, 
 336 to 333, 234, 264, 576 to 589. 
 
 See Title. 
 
INDEX. 
 
 VENDOR— Obn,«m««d 
 when, may sue for price, 85, 86. 
 .lien of, 85. 
 
 when, is a bailee for vendee, 87. 
 when, may avoid agreement for fraud, 
 and how to do it, 80, 231, 233, 347, 260, 
 
 waiver by, of terms of sale, 330. 
 
 conditional sale by, 330a, 1591. 
 
 right of stoppage in transitu by, 334 to 
 238. 
 
 may affirm fraudulent purchase, and re- 
 cover his damages, 238, 347, 248. 
 
 if he sues for goods he affirms a fraudu- 
 lent purchase, 338, 347, 348. 
 
 cannot recover for goods sold until he 
 has performed on his part, 389. 
 nor until credit has expired, unless 
 
 procured by fraud, 80, 240. 
 must deliver all goods sold and np 
 more, unless vendee accepts, 249. 
 
 where property left t,o be sold is used by 
 holder, who treats it as his own, 250. 
 
 implied warranty by, on sales, 351. 
 of genuineness of bills or notes sold, 
 251. 
 
 sueing for and recovering price, title of 
 goods is transferred, 583. 
 
 See Fkaxid, Sales, Title, Vendee. 
 
 VENIRE, 
 
 when to be issued, 1378, 1383. 
 
 to be delivered to a disinterested con- 
 stable, 1383. 
 how constable to be selected, 1388. 
 
 may, by consent, be for less than six 
 jurors; 1383, ISSSas. 
 
 how executed, 1282, 1384. 
 
 when one may be waived, and how, 1385, 
 1386. 
 
 second, when issued, effect and form of, 
 1387, 1288. . 
 
 in case of default of some defendants, 
 1584. 
 
 costs of, 1289. 
 
 new, when may be demanded, 1385 to 
 1389, 1325. 
 
 See Tblal, Jtjet, Constable. 
 
 VERDICT, 
 
 may be delivered on Sunday or election 
 
 day, 852, 1330. 
 former, when a bar, 1079 to 1093. 
 
 See FoBMBB trial, &c. 
 
 for amount beyond justice's jurisdiction, 
 excess may be remitted, 1274. 
 
 cannot be arrived at by lot, or by aver- 
 age of estimates of jurors, 1819. 
 
 is good, if jury afterward agree to 
 amount found by lot, 1319. 
 
 is unanimous findmg of jury, 1326. 
 
 must be general for plaintiff or defend- 
 ant, and not special, 1336. 
 
 1075 
 
 N'ERm.CT— Continued. 
 
 how found when double or treble dam- 
 ages are given, 1326. 
 
 delivery and correction of, 1827. 
 plaintiff must be called, and if he does 
 not appear it cannot be delivered 
 1337. , ' 
 
 may be sealed by order of justice, 1338. 
 
 jury may be polled as te, 1328. 
 may disagree on being polled, though 
 they have sealed their verdict, 1828. 
 
 not vitiated if juror attempts to com- 
 municate it, 1329. 
 
 when evidence though judgment not 
 entered, 1353. 
 
 how to be rendered when part of claim 
 before, and part after commencement 
 of suit, 1533. 
 
 judgment on to be rendered forthwith, 
 1553. 
 
 See Trial, Jury. 
 
 VERIFICATION, 
 of pleadings, unnecessary, 945 (2), 996, 
 
 VESSELS, 
 
 application of law of the road to, pass- 
 ing each other, 493. 
 
 liability of, for collisions by negligence, 
 685. 
 
 when both in fault, no action lies, 635. 
 
 VINDICTIVE DAMAGES, 
 what are, and when allowed, 1538. 
 
 VOID, 
 
 judgment is where justice has no juris- 
 diction, 17. 
 where justice is a relative, 1, 1264, 
 
 1543. 
 where f endered on return of warrant, 
 defendant not appearing in person, 
 873. 
 not where constable appeared as an 
 
 advocate, 919. 
 when rendered on Sunday or election 
 
 day, 853, 1330. 
 where rendered after time prescribed 
 by statute except by consent, 1552. 
 process, where objection waived by ap- 
 pearance or pleading, 30, 903ffl. 
 where served on Sunday or election 
 
 day, 853, 873. 
 on its face, liability of court, officer 
 and party for, 667, 670. ' 
 where proceedings or judgment, or pro- 
 cess is void for lack of jurisdiction or 
 irregularity, 647 to 670. 
 autliority, action for money paid by, 807, 
 
 (5), 313. 
 contract, action for money paid by, 307, 
 
 (9). 
 arrest of an officer is, while conveying 
 prisoner from one county to another, 
 879 (13). 
 
io7e 
 
 INDEX. 
 
 VOID — Uontinued. 
 
 on civil, process on Sunday is, 880. 
 
 of one detained over Sunday for that 
 purpose is, 880. 
 
 of one brought in to State, and de- 
 tained over Sunday for that purpose 
 is, 880, 
 
 of an ambassador and his servants is, 
 884. 
 when award is, 1133, 1130. 
 
 See AwAKD. . 
 
 only set aside at the instance of one 
 
 injured, 1130. 
 promise to correct mistake in award 
 
 is, 1130. 
 
 See Peooess, Judgment, Jueisdiction. 
 
 VOIR DIRE, 
 
 rules relative to, 1455, 1456. 
 
 VOLUNTARY ESCAPES, 
 See Escape. 
 
 VOLUNTARY PAYMENTS, 
 when actions for, do and do not lie^ 
 133, 330, 331. 
 
 VOLUNTARY SERVICES, 
 when actions for, do and do not lie, 
 133, 397, 298. 
 
 See GEATTJirous, &c, 
 
 VOTERS, 
 
 when privileged from arrest, 879 (6). 
 
 w. 
 
 WAGERS, 
 void, 30. » 
 
 WAGON, 
 when exempt, as part of a team, from 
 execution, 1588. 
 
 WAIVER, 
 
 of irregularities, or of void process or 
 other defects by ap;pearance or plead- 
 ing without objection, 20, 652, 664, 
 795, 831, 843, 855, 868, 908as. 
 
 of defense of illegality of contract, 37. 
 
 of conditions in a subscription, 126. 
 
 of the conditions or terms of a sale, 226, 
 330. 
 
 of tort in sales, &c., 338, 247, 248, 303, 
 806, 646, 683, 720, 777, 779, 1345.. 
 
 of strict performance of a building, or 
 other agreement, 277, 278, 381. 
 
 none of forfeiture of lease, by allowing 
 tenant to hold over, 343 a. 
 
 of demand and notice of non-payment 
 and non-acceptance of biU or note, 
 443 to 445. 
 
 See Bills, &c. 
 
 WAWER—Continwed. ■ 
 
 of conditions on which bill or note was 
 received in payment, 469, 473. 
 
 of lien, 589, 603 to 607. 
 
 of defects in affidavit for attachment, 
 by appearance, 831. 
 
 of objection that defendant should have 
 been sued by attachment or short 
 summons, by appearance, 843. 
 
 of return of summons by appearance, 
 868. 
 
 cannot be made of defendant's personal 
 appearance on return of warrant, 873. 
 
 of privilege from arrest, 879, 1335. 
 
 of plaintiff's appearance by defendant's 
 confession of judgment, 939. 
 
 of defendant's appearance by plaintiff, 
 940. 
 
 of the terms of a written agreement, 
 , 1040. 
 
 of statute of limitations, or defense of 
 award, by not pleading it, 1106, 1117. 
 
 of an award in writing, though the sub- 
 mission requires it; 1119. 
 
 of oath to atbitrators and witnesses, 
 1139fl!. 
 
 of irregularity in payment into court, 
 by tSsing money, 1151. ■ 
 
 of actual tender, 1160. 
 
 proof of, of tender supports plea- of 
 tender, 1166. 
 
 of trial by jury, 1319, 1277, 1285, 1286, 
 1288. 
 
 of an irregular adjournment, by subse- 
 quent appearance, 1B37. 
 by subsequent confession of judg- 
 '^ ment, 1337. 
 
 by a witness of his fees or their pre- 
 payment, 1332. 
 
 of return of commission by going T;o , 
 trial, 1363. 
 
 none of error in overruling challenge 
 by going to trial, 1804. 
 
 of constable's attending on jury when 
 it retires, or of his oath, 1315, 1317. 
 
 of privilege to insist on a communica- 
 tion as privileged, 1457. 
 not to answer question that would 
 convict of crime, 1473. 
 
 of error in receiving or rejecting evi- 
 dence, 1489, 1491. 
 that witness was not sworn, 1489. 
 
 of exemption law may he made, but 
 not by agreement in advance, 1586fl!. 
 
 See CoTJBTS. 
 
 WAREHOUSEMAN, 
 is a letter to hire, 104 (10). 
 responsibility of, 104 (10). 
 
 WARRANT, 
 
 when, or summons may be issued, 786, 
 . 787, 795, 800, 860. 
 when complaint must, or need not fol- 
 low, 791. 
 defined, 797. 
 
INDEX. 
 
 -107T 
 
 WA'KRA'ST—OonUnued. 
 forni and contents of, 797, 849 to 852. 
 In what cases may tie issued, 786, 787, 
 795, 798 to 802, 806, 807, 860. 
 the only process against non-residents 
 not sued on contract, 800. 
 by- what justice issued in such case, 
 782, 800. 
 , need not be issued when part of de- 
 fendants are residents, 801. 
 for penalty under city charter, 807. 
 an affidavit for, when required and 
 . when not, 803, 807. 
 
 what it should show, and general 
 
 form of, 802 to 805, 808 to 812. 
 should be drawn with great care, 804. 
 if defective, proceedings Void, and aU 
 concerned liable, 804. 
 who is a freeholder, and who inhaMtant 
 Tiamng a famvO/y, under statute rela- 
 tive to, 805. 4 
 when defendant may show cause against 
 
 issuing of, 806. '.- 
 Becurity to be given by non-resident 
 plaintiff .on applying Jbr, 798 (2), 812, 
 813. 
 
 what is sufficient, 813, 813. 
 may be on paper or parchment, 849. 
 must be signed by the justice, 850. 
 to what constable directed, 850a. 
 not to be issued, served or returnable on 
 Sunday or election day, 852, 873. 
 rule does not include charter election, 
 
 853. 
 when not on Saturday, 793, 852. 
 when to be endorsed, and what is suf- 
 ficient, 854. . ♦ 
 deputization of one to serve, by justice, 
 
 not by eonstable, 869, 870. 
 deputy^S return, 870. 
 has no fees, 870. 
 who to be deputized, 870. 
 constable may serve, in his own favor, 
 
 ' and charge fees, 869. 
 service and return of, 873 to 887. 
 defendant must be arrested, and taken 
 before justice, 873. 
 if justice absent or a material wit- 
 ness, before another in same 
 town, 873, 987. , 
 constable's return to be in writing, 
 87S 
 nbtify plaintiff of arrest, 873, 874. 
 how long and how defendant should 
 be detlined, 874 to 877, 885, 913. 
 constable is liable if his return is 
 false, 695. 
 form of the return on 877. 
 arrests on, rules concerning, 685 to 695, 
 878, 882. 
 who privileged from, 879. . 
 
 when one who is privUeged w 
 sued with one who is not, 879. 
 recapture in case of an escape, 880, 883. 
 arrest^n a dwelling-house, 881, 883. 
 See Aekest, DwBtLiNO-HonsB. 
 
 WAERANT— COTimweff. 
 defendant must appear on return of, or 
 judgment, thbugh by consent, is void, 
 873. 
 officer may command aid in case of re- 
 sistance, 886. 
 arrest on, how -made, 685, 883. 
 plaintiff should be ready, in a reasona- 
 ble time, upon the return, 913. 
 what is a reasonable time, 913, 914. 
 defendant may give security and be dis- 
 
 chargedy 914. 
 judgment for the plaintiff cannot be 
 given on return of, without his ap- 
 pearance, 915. 
 not to issue in favor of infant without 
 appointment of guardian, 928. 
 how omission taken advantage of, 
 • 926.' 
 when defendant may commence a sub- 
 sequent suit by, 1070. 
 proof in such case, 1070^ 
 adjournment of cases commenced by, 
 1309.. 
 not on justice's motion, 1305. 
 against defaulting witness and to collect 
 fine, 1341,1343, 1344. 
 
 See Witness, &c. 
 
 constable may break into dwelling- 
 house to collect fine, 1245. 
 to levy and sell to collect fine as 
 on execution, 1246. 
 to punish for contempt, 1334, (276) 1335, 
 
 1337. 
 against witness refusing to be sworn, 
 1334 (279,) 1338. j 
 
 See PnocBSS. 
 
 WARRANTY, 
 in the salp of chattels is express or im- 
 plied, 251, 1520. 
 when it must be made, 251, 252, 264 (1.) 
 
 ■general rules relative to, 251 to 270. 
 implied, of title, 351, 1530. 
 
 See Waijrantt of Title. 
 
 on sale or endorsement of promissory 
 note or bill, 351^398. 
 
 of right to use patented article sold, 
 351. 
 
 by pledgor, 351. 
 
 on sale of articles to be consumed, 351. 
 
 on sale of cattle to a butcher, 351. 
 
 on contract to sell or to make and de- 
 liver an article, 351, 258, 
 
 on sales by sample, 351, 359. 
 
 See Saimplb, &o. , 
 on goods ordered, or offered for sale, 
 
 351. , , 
 
 when and when not that leased 
 
 premises are tenantable, 344(!. 
 not from sale of a thing by another 
 
 name,' 355. 
 
1078 
 
 INDEX. 
 
 WAREANTY— OonfenMecf. 
 instances of, 355. 
 
 not from the price of a good article 
 beingpaid, 356, 264. (1). 
 
 not where goods are purchased for a 
 specific purpose, 256a. 
 
 not from the expression of an opinion, 
 252,a57, 364 (3, 6). 
 
 not from a written contract of sale, 
 363. 
 no particular words necessary to con- 
 stitute a, 353. 
 
 word "warrant" need not be used, 
 353. 
 what is a, and instances' of, 253, 364 (6). 
 
 an expression of opinion is not a, 353, 
 357, 264 (3, 6). 
 whether one -vfas made or not, when a 
 
 question for the jury, 353, 264 (6). 
 
 defect was visible or known, a ques- 
 '^ tion for the jury, 253-, 364 (7). ' 
 when a new consideration necessary.in 
 
 8,353,264(1).. 
 when qpmmendation by vendor of his 
 
 goods, is or is not a, 353, 364 (6). 
 general and special, defined, 253, 364 (7). 
 when a, does not extend to known or 
 
 visible defects, 353, 264 (7). 
 when a general, is sufficient, 353, 264 (7). 
 vendor must use no artifice or deceit, 
 
 253, 364 (3), 368, 269. 
 may be disregarded when there is fraud, 
 
 354, 364 (4). 
 must be relied on, if there is no fraud, 
 
 354, 264 (3). 
 action upon, may be maintained with- 
 out return of the article, 360. 
 
 rules relative to such cases, 360, 261, 
 264 (3, 4, 5), 267. 
 may be accompanied with a right of 
 
 return, 360, 261, 264 (5). 
 measure of damages upon, 360. 
 
 on warranty of title, 1530. 
 breach of, may be shown in defense to 
 
 action for price, 362, 1092. 
 cannot be shown by parol, if contract 
 
 of sale is in writing, 263. 
 
 unless writing is only a receipt or bill 
 of sale, 263, 1420. 
 in writing, may show vendee was ap- 
 prised of visible defects, 363. 
 on the sale of a horse, 364 to 270. 
 
 See Horses. 
 
 complaint in, 964, 965. 
 may be fraud and warranty in same 
 
 sale, 354, 364 (4). 
 cases where it is held there is or is not 
 
 a, 365, 366. 
 set-off not allowed in actions for breach 
 
 of, 1058. 
 
 WARKANTY OF TITLB, 
 on sale of goods, when tliere is a, 351, 
 1530. 
 by officers, pawnbrokers, executors, 
 
 WARRANTY OF TITLE— Oontintied. 
 administrators, trustees, and the 
 like, 251,1637. 
 damages for-breach of, 1520. 
 
 WASTE, 
 tenant not to commit, 510. 
 
 WA-^CH, 
 when exempt from execution, 1588. 
 
 WATER-COURSE, 
 
 rules relative to, 547 to 561. 
 diversion of, 553 to 559. 
 damages always implied for, 553. 
 by whom action for, to be brought, 
 554. 
 rights of upper proprietor of, 554. 
 percolation through the soil gives no 
 
 right of action, 554. 
 ' rules relative to, do not apply to surface 
 water, 554. 
 nor to filling up low places on owner's 
 
 land, 554. 
 nor to waters or springs running un- 
 der the sou, 558a. I 
 use of, for twenty years implies a grant, 
 554,559. 
 except in cases of a nuisance, 555. 
 
 See Dam, Speihg, &c., Wateb Pkivi- 
 
 I.EGES. 
 
 WATER PRIVILEGES, 
 are real estate, 503. 
 injuries to and by, 547 to 561. 
 damages always implied for injury to, 
 ' 553. 
 
 by whom action to be brought, 554. 
 dam authorized by statute, damages for 
 
 injury by it may be recovered, 555. 
 
 See Dam, Spuing, &c., Watbb-coijbsb. 
 
 WEARING APPAREL, 
 exempt from execution, 1585, 1586. 
 
 WEAVING LOOMS, 
 exempt from execution, 1586. 
 
 WHARFINGER, 
 is a letter to' hire, 104 (10). 
 responsibility of, 104 (10). 
 
 WIFE, 
 one erroneously supposing herself a, 
 cannot recover for her labor, 297. 
 
 See Mabkibd Woman. 
 
 WILD ANIMALS, 
 when personal property, 563, 638. 
 ravenous, may be pursued on another's 
 
 land, 562. 
 See iiNiMALS, Peksonal Propbbtt. 
 
 WILD GEESE, 
 property in, 568. 
 
INDEX. 
 
 1079 
 
 "W^ILLFULNESS, 
 when one cannot contract against his, 
 106(1. 
 
 WITNESS, 
 plaintiff, when claim brought for prose- 
 cution, 70. 
 
 entitled to his fees, 70. 
 who liable to, for fees, 394, 1563. 
 may sue for his fees, 294, 1334. 
 recovers only statutory fees, 394, 1^34, 
 
 1563. 
 
 when agreement to pay more is void, 
 294. 
 
 as to experts, 294, 1234. 
 before fence viewers, 537 (43). 
 when justice issuing warrant is a mate- 
 X rial, defendant to be taken ^before 
 
 another justice, 873. 
 when privileged from arrest, 879 (10), 
 
 1335. 
 justice cannot be, before himself, 981. 
 
 proceedings when he is a material, 
 981 to 988. . 
 
 See Justice. 
 
 affidavit to show the fact, 983, 985, 
 986. ■ 
 before arbitrators, oath to, may be 
 waived, 1129a, 1141. 
 may be subpoenaed, 1118, 1139. 
 proceedings against, for not attending, 
 
 1139. 
 arbitrator not competent as a, to con- 
 tradict award, 1124. 
 on application for an attachment, 833. 
 
 subpoena for, 883. 
 subpoena for, on trial, 1228 to 1334. 
 names in, by whom and when in- 
 serted, 1339. 
 how obtained from another justice, 
 
 1330. 
 by whom served, 1231. . 
 entering house to make service, 
 1331. 
 must be personally served, 1231. 
 to have a reasonable time to attend 
 
 trial, 1231. 
 need not attend if fees are not paid or 
 tendered, 1232. 
 amount of fees of, 1233, 1561. 
 if subpoenaed in several causes, has 
 fees iu each, 1333. 
 by both parties, has fees from both, 
 
 1233. ^ ^ , 
 
 entitled to fees if sworn, though not 
 
 subpoenaed, 1334. 
 may waive payment of fees, \i6i. 
 compelled to attend oply in his own or 
 
 an adjoining county, 1238. 
 liable to attachment for neglect ot sub- 
 poena, 1336. . o_ . 1 
 proceedings and practice, &c., in sucn 
 cases, 1336 to 1341. 
 fine upon defaulting, 1241. 
 
 WITNESS— Ooniinued. 
 
 when summons or warrant for, neces- 
 sary and when not, 1341, 1342. 
 summons may be issued by another 
 jijstice, 1241. 
 may be issued after termination of 
 
 cause, 1341. 
 how and when served, and when 
 
 returnable, 1242. 
 proof of service of, 1243. 
 record of the judgment to be made, 
 
 1243. 
 execution for, 1344. 
 manner of levying, 1345, 1246. 
 officer may break into dweUing-house 
 to execute, 1245. 
 
 to make return as in case of execu- 
 tions, 1346. 
 justice not liable for imposing, 1247. 
 process against, for refusing to testify, 
 1338.. <\ 
 
 evidence in the proceedings, 1338. 
 commission to examine foreign, 1348 to 
 1263. 
 
 See Commission. 
 
 justice cannot be a, before himself, ex- 
 cept by consent, 1270. 
 must swear witnesses, 1270. 
 oath to, 1306. 
 subscribing, defined, 1366. 
 when must be called, 1349, 1366. 
 one of several sufficient, 1349, 1366, 
 
 1375. 
 when need not be called, 1367 to 1379. 
 when bad character of, may be 
 
 shown, 1376. 
 if writing proved or acknowledged, 
 
 1867. 
 when by an admission of the execu- 
 tion of the writing, 1374. 
 when they cannot be examined or 
 
 found in the state, 1375, 1378. 
 when proof, of his handwriting 
 
 enough, 1375, 1378. 
 when enough to prove party's hand- 
 writing, 1378. 
 when insufficient, 1376. 
 where witness recognizes his signa- 
 ture, but forgets the signing, 1377. 
 when witness is ill, 1378. 
 party may be, to disprove necessity for 
 
 secondary evidence, 1383, 1383. 
 deceased or kept away by other party, 
 former evidence of, may be used, 1410. 
 only substance of former evidence 
 need be given, 1410. 
 one only needed to prove an account- 
 book, 1435. 
 incompetency of, 1439 to 1444, 1447 to 
 1457. 
 
 See Incompetency. 
 
 may be examined as to ceremonies to 
 be observed in swearing him, 1443. 
 
 method of administering oath to, and 
 its form 1444 to 1447. 
 
1080 
 
 INDEX. 
 
 WITWEBS— Continued. 
 when priYUeged from testifying, 1457 to 
 1468. 
 
 See PBrvTLEOBD CoMMxrincATioNB. 
 
 examination of, 1468 to 1489. 
 
 See EXAMTNATION. 
 
 weight of the testimony of, 1480. 
 
 unimpeached and vmcontradicted, evi- 
 dence of, not to be disregarded; 1480. 
 
 cannot be contradicted upon an imma- 
 terial fact, 1477. 
 
 impeachment of, 1483 to 1489. 
 
 5(S6 .Impeachment op a Witkess. 
 
 number of, to prove a fact, discretionaiy 
 with justice, 1501. 
 ' giving evidence without being sworn, 
 when error is waived, J.489. 
 
 presumed to have been sworn, if no ob- 
 jection was made, 1492. 
 
 further examination of, when in jus- 
 tice's discretion, 1478, 1503. 
 
 fees of, 1233, 1561 (10). 
 
 WOMEN, 
 when privileged from arrest, 879 (5). 
 
 See Makkied Women. 
 
 WOOL, 
 when exempt from execution, 1586, 
 1587. 
 
 WOKDS, 
 
 in written instruments, understood in 
 
 their ordinary sense, 109 (4), 1431. 
 when may be explained, 1431. 
 
 ' WORK, LABOR AJSTD SERVICES, 
 action for, 370 to 304, 969. 
 contracts for, how made, 370. 
 
 when implied, and when not, 370, 397, 
 399, 300 to 303. 
 
 to deliver goods to be manufactured 
 are contracts for, 89. 
 
 for sale and delivery of standing trees 
 is not contract for, 89. 
 
 what are contracts for, 89. 
 
 rule where goods exist, but something 
 is to be done to them, 89. 
 when cannot, recover for gratuitous, 
 
 though subsequent promise, without 
 
 consideration is made tOjpay, 37, 133, 
 
 297 to 303. 
 
 exceptin case of wrecks and goods lost 
 at sea, 398. 
 express contract for, governs, 371. 
 
 action must be brought on it, 283. 
 
 rule when no price or time of pay- 
 ment is mentioned, 371. 
 
 where laborer has election as to its 
 duration, 371. 
 
 when contractor acquires no right un- 
 til he has performed, 114, 317, 349, 
 373, 378, 389. 
 
 WORK, &c.— C 
 
 exceptions in case of sidkness or 
 death, or where the law prevents, 
 273, 1041. 
 
 where laborer is an infant, 373. 
 amount of his recovery, 373. 
 between master and servant, may be 
 rescinded for misconduct, 374. 
 where one hinders the other from 
 performing, 377, 380, 381, 289. 
 damages therefor, 380, 281, 289. 
 when not entire, payable on part per- 
 formance, 375. 
 
 recoupment by either party of dam- 
 ages, 275. 
 price to be paid on alteration of con- 
 tract, 376, 377. 
 
 when deviation is by willfulness, 
 &c., of employer, 377, 380, 281. 
 builder cannot recover for, if he devi- 
 ates from contract, 278. 
 though the employer occupies the 
 
 bunding,278. - 
 rule as to those not builders, 378. 
 waiver of the failure, 277, 278, 281. 
 by maker of a chattel to order, when 
 the one ordering reflises to accept, 
 279. 
 upon a building, the owner neglecting 
 to furnish materials, 380. 
 damages therefor, 280. 
 where employer prevents completion in 
 time, and then orders contract to be 
 completed, 277, 280, 381, 389. 
 damages therefor, 380, 281, 389. » 
 
 contractor for, cannot recover additioijal 
 
 price for using better materials, 383. 
 contract for, obtained fraudulently, 284, 
 
 285. 
 professional services, 286, 290 to 297. 
 
 See Pbofessional Peeson. 
 
 de^ee of skill required from profes- 
 sional persons, 390, 68.3. 
 
 of attorneys and counselors-at-law, 
 286, 398. 
 
 of clergymen, 286. 
 
 of physicians and surgeons, 286, 288. 
 no license needed, 286. 
 where employed by a third person, 
 286. 
 
 defense of negligent or defective ser- 
 vice, 289 to 293. 
 
 that attorney or counselor agreed 
 to conduct cause gratis, 293. 
 
 when professional person liable for 
 defective service, 389, 390. 
 
 implied undertaking of professional 
 person, 290, 683. 
 do not undertake to suceed, 390. 
 where " quack " or incompetent 
 person is employed, 290. 
 
 evidence in action by an attorney for 
 his services, 293. 
 
 for one's child .or servant, witliout his 
 I knowledge, 387. 
 
INDEX. 
 
 1081 
 
 WORK, &c.— Continued. 
 by piisoners or paupers in poor-house, 
 
 288. ' 
 
 in medical attendance on paupers, 388. 
 against whom action to be brought, 
 
 394. ■ 
 
 party who employs, 394. 
 
 illustrations of rule, 394. 
 
 sheriff coUecta from attorney, 294. 
 arbitrators may recover their fees, 395. 
 actions for their tuition bills, by teachers 
 
 of select or private schools, 395a. ' 
 
 defense in such cases, 395a. 
 
 by a broker, 296. 
 
 by one employed to procure a pardon, 
 396. 
 a woman cannot recover for, for one 
 
 she supposed her husband, 397. 
 
 nor a minor under void indentures, 
 397. 
 
 nor one who worked, supposing him- 
 self a slave, 297. 
 partner cannot recover for, in settling 
 
 up affairs of firm, 297. 
 
 exception, 297. 
 performed by members of the family, 
 
 no recovery for, 297. 
 to be paid for in what a third party 
 
 deems reasonable, the price must be 
 
 so fixed, 299. 
 
 so as to other conditions, 299. 
 agreement to pay for, implied from a 
 
 request to perform with a promise of 
 
 a present, 300. 
 by a sub-contractor, no agreement im- 
 plied to pay for, 801. 
 by another's child or servant, when 
 
 agreement implied to pay for, 303. 
 when payment to child for, sufficient, 
 
 303. 
 when statute of limitations begins to 
 
 run, on claim for, 371, 1097. 
 when interest begins to run on claim 
 
 for, 1535. 
 
 WORKING TOOLS, 
 when exempt from execution, 1586, 
 1588. 
 
 WORKMAN FOR HIRE, 
 liabUity of, 104 (9). 
 degree of skUl required from, 104 (9). 
 
 WRECKS, 
 lien for salvage upon, 596. 
 
 WRITINGS, 
 rules of interpretation of, 109, 1420 to 
 
 1424. 
 how set forth in pleading, and proof of, 
 
 1346, 1347. 
 when, must and when may not be pro- 
 > duced in evidence, 1349, 1365. 
 
 when admission does not dispense with 
 
 production of, 1363. 
 lost or destroyed, evidence of 
 
 136 
 
 WRITINGS-Cfarafenwff. 
 
 See Lost Wketings. , 
 
 evidence of, where there is a subscrib- 
 ing witness, 1349, 1375 to 1379. 
 
 office copies of, when evidence, 1350 to 
 1354. 
 
 in possession of the other party, 1380 
 to 1384. 
 
 See EviDENCB. 
 
 notice to produce, 1380 to 1383. 
 if not produced presumption is 
 
 against party refusing, 1380. 
 proof of service of notice, 1383. 
 when notice to be given, 1382a. 
 court has discretion to let in inferior 
 evidence of, 1383. 
 oath as to necessity of receiving it, 
 1384. 
 produced pursuant to notice are prima 
 
 facie evidence, 1385. 
 presumed executed at date or date of 
 
 acknowledgment, 1393J. 
 cannot, in general, be explained or con- 
 tradicted, 1401, 1420 to 1434. 
 exception in case of a receipt, 1401, 
 
 1433. 
 may show separate, and not incon- 
 sistent agreement, 1430. 
 usage cannot be received to ex- 
 plain, &c., 1420. 
 may show the meaning of words 
 and terms, 1421. 
 explain latent, but not patent 
 
 ambiguity, 1422. 
 show surroundmg facts and 
 
 circumstances, 1431. ■ 
 show another writing or agree- 
 ment made at same time, or 
 referred to in it, 1423. 
 whel-e they do not purport to con- 
 tain all the agreement, 1433. ' 
 when duplicates are made which dis- 
 agree, which to be followed, 1433. 
 if part of, is read in evidence, the other 
 party may read the rest, 1406. 
 or another referred to in it, or on 
 which it is based, 1406. 
 
 See EviDBifCE. 
 
 WRONGS, 
 actions for, who may be parties m, 757 
 to 768. ^ 
 
 must be brought in the name of 
 persons injured, 758. 
 
 by joint tenants or tenants in com- 
 mon, 759. 
 
 certain, committed by or against 
 deceased persons, 763. 
 
 when one of several parties inter- 
 ested dies, 761. 
 
 to a married woman before her 
 marriage, 763. 
 
 may be against aU persons aiding, 
 765, 767. 
 
1082 
 
 INDEX. 
 
 "WRONQS—Qoniinued. 
 
 against master for his agent's, at- 
 torney's or servant's negligence, 
 481,766. 
 pleading to, admitting part and 
 
 jiistifying part, 1 191. 
 separate, may be brought for re- 
 peated wrongs, 1533. 
 joinder of improper parties in, 760. 
 all persons, Including infants, idiots, 
 &c., liable in actions for, 757, 764. 
 See Actions, Parties, Plaintipf, De- 
 fendant, Torts, &c. 
 
 WKONG-DOEES, 
 each one of several liable for the whole 
 injuiy, 706. 
 
 WRONG-DOERS— Confo'nwff. 
 one, or several actions may be brought 
 
 against them, 707. 
 release of one of several, discharges all, 
 
 707, 1108. 
 contribution cannot be enforced by one 
 
 against another, 707. 
 
 See Judgment, Defendant, Plaintiff, 
 Pabties, Damages. 
 
 YARN, 
 when exempt from execution, 1586, 
 1587. 
 
INDEX TO FORMS. 
 
 [The references are to the page, not to the section.'] 
 
 AFFIDAVIT, 
 on confession of judgment, 870. 
 on application for short summons by 
 non-resident, 433. 
 against non-resident defendant, 424 
 by resident, 447. 
 for a warrant not on contract, 429. 
 
 on contract, 430. 
 for an attacbment under the Revised 
 Statutes, 486. 
 imder aet to abolish imprison- 
 ment, 437, 438. 
 that the justice is a material witness, 529. 
 to obtain execution against the body, 
 885. 
 attachment against a witness, 674. 
 by householder, to obtain discharge 
 from jail, 936. 
 
 AMENDED RETUBN, 
 on appeal, 953. 
 
 ANSWERS, IN ABATEMENT, 
 that plaintiff is dead, 539. 
 
 an alien enemy, 539. 
 
 an infant, 539. 
 
 a married woman, 539. 
 defendant is a married woman, 539. 
 
 a non-resident and sued by long sum- 
 mons, 539. 
 proper parties are not joined as defend- 
 ants, 540. 
 defendant is sued by a wrong name, 540. 
 plaintiff is not entitled to the character 
 
 in which he sues, 540. 
 another action for the same cause is 
 
 pending, 540. 
 defendant commenced an action in 
 
 which plaintiff was bound to set off 
 
 his demand, 541. 
 
 ANSWERS IN BAR, 
 commencement of, 506. 
 former recovery, for the same cause, 566. 
 in which plaintiff's demand was set 
 off, 566. 
 
 might have been set off, 566. 
 trial and judgment for the same cause, 
 584. 
 another form, 593. 
 setoff; 583. 
 
 ANSWERS IN BAH^OonUnuea. 
 release of the cause of action, 600. 
 award of arbitrators on the'matter, 604. 
 accord and satisfaction, 619. 
 tender, 635. 
 justification for impounding cattle, 643. 
 
 that plaintiff's fence was defective, 
 644. 
 
 that the close was a highway, 644. 
 showing title to real estate, 647, 648. 
 
 APPEAL, 
 notice of, 943. 
 undertaking for stay upon, 945. 
 
 approval of, 945. 
 certificate that security had been given, 
 
 954.. 
 returns to, 946, 949. 
 amended return, 953. 
 
 APPLICATION, 
 
 for an attachment, 435. 
 subpoena to testify upon, 443. 
 
 APPOINTMENT, 
 
 of guardian of infant plaintiff, 491. 
 consent by guardian of infant defend- 
 ant, 493. 
 
 ARBITRATION, 
 
 submission to, by bond, 614. 
 
 oath upon which to obtain subpoena, 
 
 617. 
 subpoena for witnesses, 617. 
 oath to arbitrators, 618. 
 oath to witnesses, 618. 
 award, 615. 
 revocation of submission, 611. 
 
 ATTACHMENT, 
 (for the commencement of an action), 
 
 446. 
 application for, 433. 
 affidavit for, under Revised Statutes, 436. 
 under act to abolish imprisonment, 
 437,438. 
 subpoena for witnesses on application, 
 
 443. 
 bond on application, 444. 
 by owner, to prevent the removal of 
 
 goods, 473. 
 by claimant, to prevent the removal 
 of goods, 473. 
 
1084: 
 
 INDEX. 
 
 ATTACHMENT— Con*i?iMerf. 
 inventory of property attached, 476. 
 return 'upon, 477. 
 against defaulting witness, 676. 
 
 affidavit upon whicli to obtain, 674. 
 
 oatli for the same purpose, '675. 
 
 ATTOENEY, 
 
 ■warrant to appear for plaintiff, 487. 
 for defendant, 487. 
 acknowledgment of, 488. 
 
 ATJTHOKITY, 
 
 to appear for plaintiff, 487. 
 for defendant, 487. 
 
 to a person not a constaMe to serve pro- 
 cess, 479. 
 
 AWARD, 
 
 of arbitrators, 615. 
 complaint upon, 508. 
 answer setting up an, 604. 
 
 B. 
 
 BILL, 
 of sale by constable upon sale on ex- 
 ecution, 933. 
 of exchange, 183. 
 
 BOND, 
 
 on application for attachment, «444. 
 
 and approval to prevent removal of 
 goods upon attachment, 473. 
 
 and approval by claimant of goods upon 
 attachment, 473. 
 
 (security) by non-resident plaintiff on 
 warrant, 431. 
 
 official, of a constable, 939. 
 
 upon an application for an adjournment, 
 666. 
 when no execution can be issued 
 against the body, 666. 
 
 justification of sureties upon, 668. 
 
 oath to sureties justifying, 668. 
 
 in action upon lost instrument, 764. 
 
 of indemnity to constable with' execu- 
 tion, 911. 
 
 c. 
 
 CERTIFICATE, 
 of town clerk to copy of record, 749. 
 of acknowledgment of an instrument by 
 one known to the officer, 754. 
 by person identified by a witness, 
 
 754. ' 
 by husband and wife, known, 754. 
 botU unknown, 755. 
 one unknown, 755. 
 four persons, two known, 755. 
 persons under a power of attorney, 
 756. 
 by deputy sheriff, 756. 
 of proof by subscribing witness, 756. 
 by witness unknown, 757. 
 by witness as to husband, wife known, 
 757. 
 
 C^KTJFIOATE— Continued. 
 
 ' by witness as to husband, wife un- 
 ^ known, 758. 
 of county clerk to authenticate proof, 
 
 &c., 759. 
 of justice, that security is given on ap- 
 peal, 954. 
 of transcript of judgment, 876. 
 CHECK, 184. 
 
 COMMISSION, 
 
 to examine foreign witness, 684. 
 notice of application for, 683. 
 proof of service of, 683. 
 interrogatories, 686. 
 .endorsement of settlement of interrog- 
 atories, 686, 687. 
 ' subpoena upon, 689. 
 deposition, 690. 
 markii^g exhibits, 690. 
 return of, 691. 
 
 COMPLAINT, 
 commencement of, 505. 
 on a special agreement, 505. 
 
 where' performance has been prevent- 
 ed, 506. 
 on instrument for the payment of money, 
 
 507. 
 on a promissory note, 507. 
 agreement to submit to arbitration re- 
 voked, 507. 
 revocation of submission, special dam- 
 age alleged, 508. 
 for a reward offered by defendant, 507. 
 on an award of arbitrators, 508. 
 
 agreement to receive plaintiff into 
 service, 509. 
 
 a contract to build, 509. 
 against an attorney for neglect, 509. 
 
 vendee for not accepting and paying 
 for wheat sold, 510. 
 
 vendor for not delivering wheat sold, 
 510. 
 upon a warranty of a horae purchased, 
 
 611. 
 
 exchanged, 511. 
 against a bailee on a deposit, 513. 
 
 on a mandate, 513. 
 
 on a loan for use, 513. 
 
 on a letting to hire, 513. 
 
 on a pledge lost, 513. 
 
 on the negligent loss of a watch, 613. 
 
 on reflisal to return the bailment, 513. 
 
 a farrier for badly shoeing a horse, 513. 
 
 a carrier for loss of a box, 514. 
 
 an agent to sell, for not accounting, 
 515. 
 for money lent, or paid, laid out and 
 
 expended, 515. 
 for goods sold, 515. 
 
 work and labor, 515. 
 
 use and occupation of re&l estate, 516. 
 
 balance'on an accounting, 516. 
 against a constable for not returning 
 
 execution, 517. 
 on nn implied warranty of title, 517. 
 
INDEX. 
 
 1085 
 
 COMPLAlNT—OonUrmed. 
 for injury by negligence, 518. 
 
 by negligence of servant, 518. 
 
 by defendant's bull, 518. 
 
 to sheep by defendant's dogs, 519. 
 trespass on land, 519. 
 
 ■wUlflil, treble damages claimed, 519. 
 taking or detaining personal property, 
 
 erecting a nuisance, 530. 
 
 breaking defendant's close to entice his 
 
 servant, 530. 
 penalty for sale of liquors without 
 
 license, 531. 
 to be drank on the premises, 531. 
 
 for racing animals, 531. 
 fraud in the sale of a horse, 531. 
 fraudulent concealment of defects in a 
 
 sale 533 " 
 
 on sale "with all faults," 533. 
 on a judgment, 533. 
 on demand, assigned to plaintiflF, 533. 
 by executors or administrators, 533. 
 by surviving executor or administrator, 
 
 534. 
 
 CONPESSION, 
 of judgment, 869. 
 affidavit when over $50, 870. 
 entry of, 875. 
 
 CONSTABLE, 
 ofllcial bond, 939. 
 return to summons, 457, 458. 
 
 to warrant, 468. 
 
 to attachment, 477. 
 
 to venire, 705. 
 
 to execution, 937. 
 bond to, by defendant in attachment, 
 
 473. 
 
 by claimant of goods attached, 473. 
 
 of indemnity by_ a plaintiflF, 911. 
 oath to, when put in charge of jury, 733. 
 inventory of goods levied on execution, 
 
 920. 
 
 taken on attachment, 476. 
 notice of sale upon execution, 930. 
 bin of sale upon execution, 938. 
 
 CONTEMPT, 
 warrant for offender, 735. 
 record of conviction, 736. 
 warrant of commitment upon, 737. 
 by witness refusing to answer, oath of 
 
 materiality^ 738. 
 warrant of commitment for, 738. 
 
 COUNTY CLEKK'S CERTITICATE, 
 to authenticate proof, <^., of a deed, 
 
 759. 
 to authenticate copy of transcript, 747. 
 
 D. 
 
 DOCKET, 
 
 manner of keeping, 874. 
 
 DEMURRER, 
 to complaint, 650. 
 
 DEPOSITION, 
 of witness, upon commission^6 
 
 E. 
 
 f discontinuance, the justice being wit- 
 
 ENTRY, 
 of discoi 
 
 n£ss, 538. 
 of conviction of a fine of defaulting 
 
 juror, 733. 
 
 of a defaulting witness, 678. 
 
 for a contempt, 736. 
 of judgment on confession, 875. 
 upon justice's docket, 874. 
 
 EXECUTION, 
 against defaulting juror, 733. 
 for , a fine against defaulting witness, 
 
 679. 
 upon a judgment, 886. 
 endorsement to collect interest, 887. 
 
 when one of several defendants was 
 not served with process, 888. 
 
 when for a penalty, 888. 
 renewal of, 890. 
 
 receipt of goods levied upon, 916. 
 inventory of goods levied upon, 930. 
 notice of sale on, 930. 
 bill of sale for goods sold upon, 933. 
 aflSdavit by imprisoned debtor upon, 
 
 936. 
 return of, 937. 
 
 tmdertaking upon appeal to stay, 945. 
 certiflcate of justice to stay, 953. 
 
 F. 
 
 FINE, 
 entry on against defaulting juror, 733. 
 
 G. 
 
 GUARDIAN, 
 
 consent of, for infant plaintiff, 491. 
 
 for infant defendant, 493. 
 appointment of, 491, 493. 
 
 H. 
 
 HOUSEHOLDER, 
 affidavit of, to obtain discharge from 
 jail, 936. 
 
 I. 
 
 IDEMNITY, 
 bond of, to constable, 911. 
 
 INTEREST, 
 endorsement to collect on execution, 887. 
 
 INTERPRETER, 
 
 oath to, 814. 
 
1086 
 
 INDEX. 
 
 INTERROGATORIES, 
 
 See CoMHigsiON. 
 
 INVENTORY, 
 of goocli levied on, on execution, 930. 
 o& attachment, 476. 
 
 JUDGMENT, 
 transcript of, 876. 
 
 JUROR, 
 
 oath to, 717. 
 
 oath upon a challenge to the array, 716. 
 
 to the polls for favor, 717. 
 execution against defaulting, 733. 
 
 JUSTICE'S, 
 docket, 874. 
 
 JUSTIFICATION, 
 
 of sureties, 668. 
 
 answer setting up, for impounding cat- 
 tle, 643. 
 
 defective .fence, 644. 
 that close was a highway, 644. 
 
 N. 
 
 NEXT FRIEND, 
 appointment of, 491. 
 
 NOTICE, 
 
 to plaintiff to attend trial, on a defense 
 that the demand was unlawfully pur- 
 chasedy 85. 
 
 of the dishonor of a biU or note, 331. 
 
 of application for a commission to ex- 
 amine witness, 683. 
 
 to produce papers in evidence, 765. 
 
 of sale of goods upon execution, 930. 
 
 of appeal, 943. 
 
 o. 
 
 OATH, 
 
 form of administration given in the 
 statute, 803. 
 
 to an aflSdavit, 437. 
 
 for subpoena before arbitrators, 617. 
 
 to arbitrators, 618. 
 
 to witnesses on an arbitration, 618. 
 on a trial, 718. 
 
 to sureties upon justification of bond, 
 668. 
 
 on application for attachment against a 
 witness, 674. 
 subpoena before arbitrators, 617. 
 
 on proceeding against witness for con- 
 tempt, 738. 
 
 on objection against a constable on ex- 
 ecution of venire, 704. 
 
 to witness, on challenge of juror, 715. 
 
 to juror challenged, 715. 
 
 to triers on challenge of the array, 716. 
 on challencre of the noils. 717. 
 
 OA.T^—G<mtinued. 
 to jurors, 717. 
 to witnesses, 718. 
 to constable to attend a jury, 733. 
 as to the necessity of secondary evidence, 
 
 in case of the absence of an attesting 
 
 witness, 767. 
 to an interpreter, 814. 
 
 P. 
 
 PROMISSORY NOTE, 
 negotiable, 185. 
 
 PROOF, 
 of notice of application for commission 
 
 to examine witness, 683. 
 of execution of instrument by subscrib- 
 ing witness, 756. 
 unknown to the justice, 757. 
 
 E. 
 
 RECEIPT, 
 of goods levied on, 917. 
 
 RECEIVING, 
 verdict, 739. 
 
 RECORD, 
 of the fine of a defaulting witness, 678. 
 of a conviction for a contempt, 736. 
 transcript of, clerk's certificate of, 747. 
 
 RELEASE, 
 of a joint debtor imder the statute, 604. 
 
 RENEWAL, 
 of execution, 890. 
 
 RETURN,, 
 of a summons, 457, 458. 
 of a'warrant, 463. 
 to an attachment, 477. 
 of commission, 691. 
 to venire, 705. 
 of execution, 937. 
 to an appeal, 946, 949. 
 amended, to an appeal, 953. 
 
 REVOCATION, 
 of a submission to arbitration, 611. 
 
 s. 
 
 SECURITY, 
 by a non-resident plaintiff for a war- 
 rant, 431. 
 upon an appeal, 945. , 
 
 certificate that it haa been given on ap- 
 peal, 954. 
 
 SUBPCENA, 
 on application for attachment, 443. 
 for a witness before arbitrators, 617. 
 to testify, 670. 
 dnjbces tecum, 670. 
 by a commissioner to take testimony, 
 
INDEX. 
 
 1087 
 
 SUMMONS, 
 
 for the commencement of an action. 
 420. 
 
 when plaintiff sues in a particular char- 
 acter, 420, 421. 
 
 afiSdavit to obtain short, by non-resi- 
 dent, 308, 433. 
 
 against non-resident defendant, 424. 
 by resident plaintiff, 447. 
 
 to defaulting -witness on proceedings 
 for a fine, 677. 
 
 to defaulting juror, 732. 
 
 TRANSCEIPT, 
 of a judgment, 876. 
 of a record by the county clerk, 716. 
 by justice, 746. 
 
 TRIERS, 
 oath to, on challenge to the array, 716. 
 to the polls, 717. 
 
 U. 
 
 UNDERTAKING, 
 upon question of title to real estate, 648. 
 for stay of proceedings upon an appeal, 
 
 945. 
 approval of security upon, 945. 
 
 VENIRE, 
 writ, 703. 
 return of, 705. 
 
 VERDICT, 
 receiving, 739. 
 
 W. 
 
 WARRANT, 
 as the commencement of an action, 438. 
 affidavit on applying for one not on 
 
 contract, 429. 
 
 one on contract, 430. 
 return of, 463. 
 security by a non-resident on applying 
 
 for, 431. • 
 
 to answer for a contempt, 735. 
 of commitment for contempt, 737, 738. 
 
 WITNESS, 
 
 oath to, before arbitrators, 618. 
 
 on trial, 713. 
 
 attachment for defaulting, 676. 
 
 summons to defaulting, 677. 
 
 record of fine upon defaulting, 678. ' 
 
 execution against defaulting, 679. 
 
 notice of application for commission to 
 examine, 682. 
 
 proof of service of notice, 683. 
 
 commission to examine, 684. 
 
 interrogatories to annex, 686. 
 
 endorsement of allowance upon, 686, 
 
 . 687. 
 
 subpoena by commissioner, 689. 
 
 oath to witness on, 689. 
 
 deposition of, 690. 
 marking exhibits to annex, 690. 
 
 subpcEna for, to appear before arbitra- 
 tors, 618. 
 
 oath of materiality when a refusal to 
 testify, 738. 
 
 warrant of commitment of refractcay, 
 738.