Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 in nEnoRY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 801.C54 1874 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018826077 A TREATISE ON TUB LAW OF CONTRACTS, AND UPON THE DEFENCES TO ACTIONS THEREON ; BY JOSEPH CHITTY, Jr., Esq. — if*-' ®t)c Nintl) (English (Ebitiou: BY JOHN ARCHIBALD RUSSELL, Esquire, LL. B., ONE OF HKR MAJESTY'S COUNSEL, AND A JUDGE OF COUNTY COUBTS. arije lElebeittlj American 2EBltton: BY J. C. PERKINS, LL. D. IN TWO VOLUMES. VOL. I. NEW YORK: PUBLISHED BY HURD AND HOUGHTON. 1874. Entered, according to Act of Congress, in the year 1874, by Hurd and Houghton, in the Office of the Librarian of Congress, at "Washington. RIVERSIDE, CAMBRIDGE: PRINTED BY II, u. HOUGHTON AMD COMPANT. ADVERTISEMENT TO THE ELEVENTH AMERICAN EDITION. This work, which began with a thin volume of about 300 pages, has, in passing through nine English and eleven American editions, been increased, by the introduction of new developments in the law, new principles established, and an accumulated citation of more recent decisions, to such an extent that two volumes, containing more than twice the original number of pages in each, have become necessary to meet the demands of the time in the study of the Law of Contracts. The original design of the author was " to render it a complete treatise on the principles of the Law of Contracts," and also " a useful Nisi Prius book on the very many important subjects which it embraced." The original work was regarded one of the most valuable, and it speedily became one of the most pop- ular, law books of the day ; and no subsequent edition has failed to exhibit a marked advance upon its predecessor, both in value and reputation. The treatise has always continued to hold the rank it first took as the most useful, convenient, and reliable book extant within its original design. It is noted for the preeminent clearness and accuracy with which it states the principles that are established by the cases ; for the ease and readiness with which it may be consulted ; and for the fulness, pertinence, discrimination, and reliability of its citations. In 1845, Mr. Warren, in his " Law Studies," recommends the book to students as certainly the best practical work on the subject of Contracts for the common law practitioner, and advises the purchase of it at an early stage of legal study. Professor Whiteside says of it, " I ought not to omit to recommend Chitty on Contracts. IV ADVERTISEMENT. The book is skilfully arranged, clearly written, the cases well clas- sified and most fully collected. For both the student and practi- tioner this work is equally useful, instructive, and necessary.'" Chancellor Kent speaks of an edition of it published in 1834, as " the latest and best practical treatise in the English Laws on the law of contracts not under seal." It is cited and relied upon by English lawyers in the argument of cases much more frequently and with more confidence than any other treatise upon the subject ; and its conclusions of law from the cases, and statements of prin- ciples established by them, are not unfrequently adopted by the courts in making up their decisions, both in England and America. Three editions of the work have been issued in England since the last (being the tenth) American edition was published. The enlargement of the text in these editions, and the other changes made in it, have created a necessity and opened the way for a cor- responding extension in the range of the notes to be introduced into this eleventh American edition. The editor has consequently introduced many new notes, entirely recast many, enlarged others, and revised the whole, as the text seemed to require ; and in order to adapt the book more fully to American study and practice the editor has introduced into the text, with proper marks of distinc- tion, such additions of new matter as have been deemed important and suitable for that purpose. Several entire sections have been added to the English text, — e. g. on Tender of Specific Arti- cles, Parties, Assignment, Novation, Covenants running with the Land, Mistake in the Making of Contracts. The editor has also, for the purpose of giving to the reader a more thorough and complete statement of the remedies by which parties may obtain relief for breach of contracts, adapted to the work a very full and exhaustive chapter on the subject of "Spe- cific Performance," which is an entirely new feature in it. The Index has been much enlarged, and the facilities for con- sulting the book have been thereby greatly increased. J. C PERKINS. Salem, February 4, 1874. ADVERTISEMENT THE NINTH EDITION. I have again very carefully revised this Book, so as to adapt it to the Law as settled by the latest decisions. Since the last Edition was published, many Statutes have been passed, by which important changes have been made in the Law relating to several of the subjects treated of. These changes have been duly noticed ; and my only regret has been that I could not, whilst noticing them, omit, at the same time, all reference to the Law as it stood at the time they were made. But I felt that much of the usefulness of the Book, might depend on its containing a complete view of the Law as it is now actually in operation. And, — owing to the very recent period at which most of the changes referred to took effect, — I could not give such a view of the Law, otherwise than by presenting it to the reader both in its former and in its altered state. The Index to tin's Edition has been prepared by my friend Mr. William Masterman, of the Home Circuit. JOHN A. RUSSELL. 2 H.vecourt Buildings, Temple, \Uh August, 1871. PREFACE THE FIFTH EDITION. In his Preface to the Fourth Edition, the present Editor stated that, " in the additions which he had made to the Work, he had studied to keep in view the design with which it was undertaken by its learned Author, namely, ' to render it a complete Treatise on the Principles of the Law of Contracts,' and also ' a useful Nisi Prius book, on the very many important subjects which it em- braced.' " On a careful review of that Edition, however, the Editor found, that he had not succeeded in accomplishing this double object so fully as he wished ; and that, especially in so far as it treated of the Principles of the Law of Contracts, it would admit of considerable improvement. To effect this improvement has been the Editor's chief aim dur- ing the preparation of the present Edition ; and, accordingly, whilst he has endeavored, by an ample reference to cases, to keep up the practical character of the Work, he has, at the same time, en- deavored to state and explain the principles on which the cases referred to were decided, or which are deducible therefrom ; and — by exhibiting these principles, so far as the nature of the subject would permit, in a connected series of propositions — to show, more fully than he had previously done, by what rules and maxims that branch of our Law of which the book treats is governed. How far the Editor will prove to have succeeded by these means, in entitling this Work to rank as a Scientific, as well as a Practical Vlll PREFACE. Treatise on the Law of Contracts, it is not for him to predict. But he trusts that, at all events, his attempt to do this will not be wholly- unattended with advantage, both to the Practitioner and to the Student. 2 Hakoourt Buildings, Temple, 6fh April, 1853. ANALYSIS. CHAPTER I. Sect. I. —^Pf the different Kinds of Contracts, and of their General Requisites. efinition of terms ...... Page 1 Different kinds of contracts ..... 2 1 . Contracts of record ..... 3 2. Contracts under seal ..... 4 3. Simple contracts ..... 5 4. Nature and properties of simple contracts as distin- guished from contracts under seal 6-11 Requisites of a simple contract. 1. The assent of the parties .... 11-24 2. The consideration. General rules as to . 24-35 Illustrations of : 1. Forbearance ..... 35 2. Intrusting a party with property 41 3. Assignment of a debt or right 45 4. Prevention of litigation . 46 5. Promise for a promise 50 6. Moral obligation .... 52 7. Gratuitous promises .... 58 8. Impossible considerations 64 9. Considerations void in part . 67 1 0. Of the consideration in regard to time. 1. Past or executed .... 69 2. Executory .... 72 3. Concurrent ..... 73 4. Continuing .... 73 3. Of the plaintiff being a stranger to the consideration 74 Rule as to deeds ..... 77 Sect. IT. — Implied Contracts ...... 79-90 x ANALYSIS. Sect. III. -t- Of the Form of a Contract. — How affected in general by the Statute of Frauds. — Agreements not to be performed within <* Year. — Of the Construction of Contracts. — Parol Evidence to contradict or explain a Written Contract. 1. Writing when necessary ... 90 2. Provisions of the statute of frauds .... 94 Contents of the memorandum required hy the statute . 95 What a sufficient signature . . . . . 97 3. Agreements not to be performed within a year . . 99 4. Of the construction of contracts. Construction is for the court . . . . . 103 General rules as to .... . 103 Construction shall be according to the intention of the par- ties ........ 104 Reasonable ...... 106 Liberal ... ... 110 Favorable ....... Ill The popular meaning of words is to be adopted . . 113 The whole contract is to be considered . . . 117 Lex loci . . . . . . . 128 Construction shall be strongest against the contractor . 136 Implied attributes of agreements .... 138 5. Of parol evidence to contradict, &c, a written contract . 140 Sect. IV. — Of stamping Agreements. 1. Provisions of the stamp act . . . . . 161 2. What agreements require a stamp .... 162 3. When several stamps are required . . . . 173 4. Effect of want of stamp . . . . . 175 5. Exemptions from stamp duties . . . . 181 CHAPTER II. OP CONTRACTS WITH PARTICULAR PERSONS. Sect. I. — Persons incompetent to contract ; or protected from Liability on their Contracts. 1. In general ...... 185 2. Persons of non-sane mind . . . . . 187 3. Drunkards ....... ]92 4. Infants .... ... 193 ANALYSIS. XI 1. General rule ...... 194 Exception as to contracts for necessaries . . 195 What are necessaries . . . . 196 2. Cases in which an infant is not liable . . . 202 3. In what cases parent or guardian liable . . 210 4. Of the infant's confirmation of his contract at full age . 215 5. Of the liability of persons who contract with infants 222 5. Married women. 1. Of the effect of marriage upon the contract of a feme sole 223 Liability of husband on contracts of the wife dum sola 226 2. Of the contracts of married women made during marriage. 1. Of the husband's rights thereon . . . 227 2. Of his liabilities thereon. 1. In general ..... 231 2. During cohabitation .... 234 3. During separation by mutual consent, or in con- quence of his act or misconduct . . 241 4. During separation by. reason of the wife's act or misconduct ..... 248 3. When a married woman may be considered as a feme sole, with regard to contracts made with her during marriage . . . • . • • 251 6. Aliens ....... 258 7. Outlaws and person convicted of felony . . . 261 8. Bankrupts ....... 263 1. Of the effect of a bankrupt's promise to pay a debt barred by the order of discharge . . . • 263 2. Of the contract of a bankrupt, made before the order of discharge takes effect . - • • 265 9. Persons under duress ....-• 269 Sect. II. — Particular Persons competent to contract. 1. Agents. 1. Different kinds of agents . . . ■ 274 2. Appointment of an agent, and revocation of his power . 275 3. Extent of his authority, and liability of principal . 281 4. Of the right of action of the principal . . . 303 5. When the agent is personally liable . . . 308 6. When an agent may sue . . • - • 315 2. Partners. 1. Of the formation of a partnership. 1. As between the parties themselves . . , 318 2. Wliat will constitute a, partnership with regard to third persons ...... 3'i6 2. Ri<*ht of one partner to sue another at law . . 339 3. What contracts by one partner bind the firm . . 344 4. Of the dissolution of a partnership ; and its effects . 359 ANALYSIS. 3. Trustees or assignees of bankrupts .... 365 4. Executors and administrators .... 371 5. Corporations ... . . 378 6. Joint stock companies ..... 383 7. Government agents . .... 386 8. Commissioners of roads, &c. . . . 388 9. Trustees ... ... 390 10. Parish officers ... . . 392 CHAPTER III. OF THE SUBJECT-MATTER OF CONTRACTS. Skct. I. — Contracts respecting Heal Property. 1. Contracts for the purchase of real property. 1. In general ... . . 400 2. Of the statute of frauds as it affects such contracts . 410 3. Of the action by the vendor against the vendee for breach of the contract . . . . . . 424 4. Of the action by the vendee against the vendor for breach of the contract ...... 420 2. Contracts between landlord and tenant. 1. To take, assign, or surrender premises . . 440 1. When an instrument amounts to a demise . . 440 2. What contracts are implied on the part of the person who agrees to grant a lease .... 445 3. When the demise must be by deed, under 8 & 9 Vict. c. 106 . . . . . 446 4. Of the tenancy from year to year . . 449 5. Of the assignment and surrender of terms . 457 6. Of the tenant being estopped from disputing the landlord's title . . . . . 462 2. Of the liability to repair .... 466 1. In case of tenant from year to year . . 466 2. Under agreement to keep premises in repair . 468 3. Liability of landlord to repair . . . 471 4. Obligation to cultivate according to custom of country 471 3. Of taxes as between landlord and tenant . . 4 72 4. Of notice to quit. 1. When necessary ..... 474 2. By whom to be given . . . 478 3. To. whom ...... 480 4. When it should expire . . 482 5. Form of, in other respects . . 48 5 ANALYSIS. xiii 6. Its effect ...... 487 7. How waived ..... 488 5. Of fixtures. 1. In general ...... 489 2. As between landlord and tenant . . . 495 1. Independently of contract . . . 496 1. Things not removable . . . 497 2. Things removable, not being trade fix- tures ..... 498 3. Trade fixtures which are removable . 500 4. Doubtful articles .... 501 2. By contract ..... 502 3. Between outgoing and incoming tenant . . 504 6. Of away-going crops, tillages, &c. . . . 505 7. Of the common count for use and occupation . . 510 Sect. II. — Contracts respecting Personal Property. 1. Contracts for the sale or exchange of goods. 1. In general ....... 517 2. Of the statute of frauds as it affects contracts for the sale of goods ...... 540 1. What contracts are within the statute . . 541 2. What is a sufficient memorandum within the statute 544 3. What is a sufficient delivery and acceptance . 555 4. Of earnest or part payment . . . 564 3. Of fraudulent sales ..... 565 4. Of illegal sales . . . 582 1. At common law ..... 582 2. By statute ...... 584 5. Of the rights of the vendor ... ' 596 6. Of the rights of the vendee .... 618 2. Warranty upon the sale of good9 . . . 625 3. Contracts for composition in lieu of tithes . . 659 4. Bailments. 1. Different sorts of bailments . . . 661, 662 1. Depositum ...■■■ 664 2. Mandatum ...... 665 3. Commodatum . . ■ ■ • 668 4. Pignori Acceptum ..... 669 5. Localum. 1. Locatio operii faciendi . . . 671 2. Locatio rei . ■ ■ ■ . 679 3. Locatio operis mercium vehendarum. 1. Of carriers of goods and their liability, in general . . i . 681 2. Their liability under the carriers' act . 712 3. Their liability for. the carriage of animals 721 xiv ANALYSIS. 4. Who is to sue the carrier . . 722 5. Liability of carriers of passengers . 726 5. Wagers ....... 735 6. Guaranties and indemnities. 1. General nature of the contract . . 738 2. How affected by the statute of frauds. 1. When the statute applies . . . 749 2. When it does not ..... 754 3. Of the form and requisites of a guaranty under the statute of frauds .... 760 8. To what exteht the surety is liable . . . 762 4. How he may be discharged .... 772 5. How the surety is indemnified . . . 785 Sect. III. — Of the Contract to Marry ... 789 796 800 801 803 807 809 810 822 822 834 835 836 837 869 872 873 Sect. V. — Contracts respecting Moneys. 1. Money lent ....... 876 2. Money paid .... 879 3. Money had and received. 1. In general ..... 898 2. Who may in general maintain the action 908 3. Against whom it lies in general . . . 910 4. When it lies to recover a debt, transferred by creditor's order on his debtor to pay the plaintiff . . . 912 5. Or money which a principal orders his agent to pay the plaintiff ..... 914 C. By principal against agent . . . 916 Sect. IV. — Contracts respecting Services and Works. 1. In general ..... 2. When the right of action in respect of, accrues 3. Lien of workmen .... C ontraets of service by — 1. Agents ... 2. Apothecaries and surgeons 3. Arbitrators .... 4. Attorneys .... 5. Authors 6. Builders and other workmen . 7. Counsel 8. Physicians 9. Printers 10. Servants 11. Sheriffs and other ministerial officers 12. Surveyors 13. Witnesses .... ANALYSIS. XT 7. Against stakeholders .... 919 8. To recover money paid on failure of consideration 920 9. Money paid by mistake .... 928 10. Money obtaine 1 by fraud ..... 936 11. Or by oppression or extortion . . . 939 12. Or money paid on an illegal contract . . . t 944 18. Money unjustly recovered at law . . . 946 14. Fees of office unjustly received by an intruder . . 948 15. Against sheriffs, &c. . . . . . 949 4. Interest ........ 950 5. Account stated ... . . 961 CHAPTER IV. OP ILLEGAL CONTRACTS. Sect. I. — In General . .... .971 Sect. II. — Contracts Illegal at Common Law. 1. Immoral contracts .... 979 2. Contracts affecting public policy . . 982 Sect. III. — Contracts rendered Illegal by Statute. 1. In general ..... . 1001 2. Gaming and horse-racing . . . 1006 3. Stock-jobbing ... . 1011 4. Illegal companies or associations . . . 1011 5. Sales of offices ... . 1018 6. Contracts made on Sundays . . . 1017 7. Illegal charges on benefices . . . . 1019 8. Contracts in consideration of not opposing a bankrupt's dis- charge ....... 1021 Skct. IV. — Contracts rendered Voidable by Mistake or Fraud . 1022 1. Mistake ..... 1022 2. Fraud ...... 1035 CHAPTER V. OP the defences to actions on contracts. 1. Performance of the contract; and excuses for the non-per- formance thereof. 1. By whom the contract is to be performed. . . 1057 XVI ANALYSIS. 2. How to be performed ..... 1058 3. When to be performed ..... 1062 4. Notice to perform, when necessary . . . 1069 5. Excuses for non-performance .... 1073 6. When the contract may be rescinded . . . 1089 2. Payment. 1. By whom to be made ..... 1095 2. To whom ...... 1096 3. Amount to be paid . ... . 1101 4. When payment presumed . . . 1103 5. How to be made ...... 1106 6. Appropriation of payments . . . . 1110 7. Receipt for the money paid .... 1118 3. Accord and satisfaction . . . . . 1122 4. That a bill of exchange or other negotiable security has been taken for the debt . . . . . . 1133 5. Release. 1. Form of express release . . . 1145 2. By whom to be executed ..... 1151 3. To whom ...... 1154 4. Release by operation of law . . . . 1156 6. Another action pending ; judgment recovered . . 1169 7. Arbitrament and award . . . . .1179 8. Tender of money. 1. When a tender is available, and its effect . . 1184 2. By whom to be made ... . 1186 3. To whom ...... 1186 4. Amount to be tendered ... . 1188 5. When to be made . . . . . 1189 6. How to be made ...... 1191 7. Effect of prior or subsequent demand . . 1197 8. Pleadings, &c. . . . . .1199 9. Tender of specific articles . . . . 1201 ] 0. The statute of limitations. 1. In general ....... 1214 2. From what period the limitation is to be dated . 1229 3. Of the revival of the remedy by acknowledgment, &c. 1. Lord Tenterden's act ..... 1236 2. What a sufficient acknowledgment . . 1239 3. By whom to be made . .... 1247 4. To whom .... . 1 249 5. Effect of stating account, and promise to pay bal- ance ....... 1251 6. Effect of part payment .... 1250 4. Of renewing a writ to save the statute . . . 2616 5. Of the pleadings . . . . . 1122 11. Set-off. 1. In general . , ... 1266 ANALYSIS. xvii 2. To what cases the statutes of set-off apply . . 1268 3. Set-oil' in case of bankruptcy .... 1 283 4. Set-oil' under winding-up clauses of "companies' act, 1«G2" 1289 5. Pleadings, &c. ..... 1289 12. Infamy ....... 1291 13. Coverture ....... 1292 14. Bankruptcy ....... 1294 15. Equitable defences ...... 1309 CHAPTER VI. OE THE DAMAGES RECOVERABLE IN AN ACTION ON CONTRACT ; AND HEREIN OF A PENALTY AND LIQUIDATED DAMAGES. 1. Moaning of the terms penalty and liquidated damages . 1314 1. Rules as to what is a penalty .... 1314 2. What are liquidated damages .... 1317 2. Proceeding for penalty or more .... 1321 3. Of the amount recoverable in other cases . . . 1322 4. Statement of the damages in the declaration . . 1333 5. Damages how assessed ...... 1334 G. Excessive or too small damages .... 1336 CHAPTER VII. PARTIES TO CONTRACTS. Sect. !. — In General ....... 1338 Sect. II. — By Assignment . ..... 1357 Sect. III. — By Novation ...... 1371 Sect. IV. — Under Covenants annexed to Estates in Law . . 1382 Sect. V. — Under Assignment of Contracts by Marriage . , 1400 Sect. VI. — Under Assignment of Contracts by Death . . 140S Sect. VII. — Under Assignment by Bankruptcy . . 1413 vol. 1 b XV111 ANALYSIS. CHAPTER VIII. SPECIFIC PERFORMANCE. 1. Jurisdiction ....... 1420 2. By whom may be enforced .... 1435 3. Against whom may be enforced . 1436 4. Parties to the suit ...... 1442 6. As to the bill ....... 1447 7. Plaintiffs case, in absence of written agreement . . 1449 8. Defence negativing plaintiff's right, except with variation . 1460 9. Defence entirely negativing plaintiff's right . 1464 TABLE OF CASES. A. PAGE Abbe v. Blood 292 Abbey v. Chafe 310, 311, 315 Abbot v. Bayley 252, 254 v. <. hapnian 1102 v. Hicks 1288, 1297 v. Smith 1352 Abbott v. Bruere 780 v. Draper 81, 928 v. Gilchrist 543 v. Grosvenor Investment Co. 1066 v. Hendricks 145, 161, 975 v. Hevmon 71,80,378 v. McElroy 1226 i'. Shepard 13, 18 v. Sworder 30, 1504 v. Wilmot 959, 1124, 1130 Abbotts ;>. Barry 85, 938 Abel v. Heathcote 1497 v. Sutton 363 Abell v. Douglass 934 v. Warner . 197 Aberaman Iron Works r. Wick- ens 1039, 1420, 1445 Abney r. Kingsland 573 Abraham v. Reynolds 857 Abrams c. Pomeroy 1G0 Abrey v. Crux 145 Acebal v. Levy 518, 545, 561, 562 Acheson v. Miller 748,897 Acker v. Ledyard 1165, 1166 v. l'hoenix 1474 Ackerman o. Ehrensperger 768 Aekland v. Lutlcy 460 Ackley v. Kellogg 705 A'Court v. Cross 1241,1242 Acraman v. Moirice 523 Acton v. Symon 1160 Adair v. Rogers 1177 v. Winchester 1360 Adam v. Litchfield 939 Adams v. Adams 111, 160, 1062, 1206 Adams v. Anderson v. Bankait v. Barnes v. Bean PAGB 581 351 1176 92 17. Blackwall Railway Co. 1426, 1428, 1433 v. Blankenslcin 708 v. Brackett 229, 251 i: Broke 1481 i'. Broughton 1176 v. Clark 722 v. Cordis 956 v. Dansey 34, 73, 756 %,. Frye 1161,1162,1168 v. Fuller 423 v. Gay 589, 591, 592, 972, 1018 v. Gibney 1389, 1395 v. Ilackett 26 v. Hamuli 588, 1019 v. Hayes 60 r. Hill 127, 797, 828, 829, 831 v. Hopkins 870 v. Jones 743 c. Lancashire & Yorkshire Rail. Co. 732 v. Lavender 226, 257 v. Lindsell 17, 18 v. McMillan 91, 97, 411, 413, 545 I.. Nichols G7, G72, 832, 833, 1078,1149 v. O'Connor 539 v. Pnij;c 1045 v. Richards 650 v. Robinfon 816, 1365, 1368 v. Royal Mail Steam Packet Co. 1062 r. Smith 417 u. TYnvnfcnd 422 v. Wsrncr 138 v. Wheeler 571, 573 -v. Whittlesey 386 v. Williams 425 XX TABLE OF CASES. Adams v. Woonsoeket Co. 85G r. Wordlcy 145, 1147 Adams Express Company v. Dar- nell 712 Adamson v. Jarvis 628, 749, 897 Allay c. Echols 1422, 1430 Adcock o. Fleming 743 Adderley r. Dixon 1424, 1428 Addington v. Allen 1043 r. Magan 1283 Addison ... Bowie 213 c. Dawson 402 v. Gandassequi 301, Gil v. Preston, Mayor &e. of 389 Adkins v. Farrington 893 r. Watson 92 Adlard v. Booth 833, 837 .aStna Ins. Co. v. Wheeler G86, G92, 706 Aflalo !'. Fonrdrinier 1294, 129 7 Agar r. Athenaeum Life Assurance Society 385 v. Blethyn 251 Agjs .-. Nicholson 312 Aglionby r. Towcrson 789 Agnew /■. IUcElroy 1171 Agriculturist &e. Co. v. Fitzger- ald 1IG7 Ahrens r. Cobb 301 Aiken v. Appleby 1004 v. Bloodgood 823 v. Duren 13 79 V. l'eay 7H7 i. Sandford 429 v. Short 929 Ainslie r. Boynton 13G7, 1381 i. Medlycott 202, 14 74 p. New York 12G5 r. Wilson 880, 902 Aitcheson e. Madoek 820 Akerman t>. Humphery G08 Alabama & Tennessee R. R. v. Kidd 708 Albany Dutch Church v. Brad- ford 1083 Albert i'. Grosvenor Investment Co. 15G AlUcrtsoii v. Halloway G53 AUiin v. Presby G75 Albrecbt c. Siissman 258 Albright i-. Penn 682 Albro e. A'jawam Canal Co. 857, 858 v JaquiUi 858 Ale Inn o. Hopkins 1020 v. Wells 870 Aleborne v. Gorame 462, 465, 139G Alcinbrook v. Uall 89G, 1009 Alciuous o. Nigren 259, 260 Alcock v. Delay v. Giberton o. Hill r. Hopkins Alcorn n. Westbrook Alcott v. Barber 168 984 779 315 1084 836 v. Boston Steam Flour Co. 1 1 Alden v. Pearson 71) Aldenburgh v. People 484 Alder v. Boyle 93,1033,1073 «•. Kcighley 1324 Alderman v. Neate 441, 443 v. Phelps 1066 v. Tirrell 1291 Aldcrson v. Langilale 1138, 1163 ,: Pope 332, 359 Alilis r. Chapman 246 Ablous v. Cornwell 1168 Aldrieh v. Albee 1204, 1209, 1213 v. Ames 760 v. Grimes 216, 218, 221 ( . Latham 500 i: McKinney 1178 v. Stoekwell 653 Aldricks v. Hisgius 769 Aldridge .-. Biiller 261 v. Great Western Rail. Co. 691, 693 v. Johnson 518, 522, 524, 525, 526, 527 i*. Turner 740 Alcwyn i'. Prior 620 Alexander /-. Adams 1365 v. Barker 878 v. Brown 1192 c. Burehfield 1105 v. Burnett 1223, 1225 v. Dfiinis 1107 v. Gardner 518, 521, 522, 615, 1331 v. Ghi-elin 540 .. Gibson 294 v. Ileiiot 218 v. Hutcheson 216 v. Miller 232, 233 ,'. Mills 1499, 1500 v. Motlow 42 v. Pierce 270, 948 v. Sizer 312 ,'. Smith 1074 />. Vane 883 Alexandria, Mayor &e. of, v. Pat- ten uri Alford v. Vickcry 479 Alfred p. Fitzjames, Marquis of 839 ti. llonie 717 Alger ». Scoville 756, 757, 758, 759 i'. Thatcher 982 Allaire ... Ouland 999 TABLE OF CASES. XXI Allan v. Griper G03, G07 v. Kenning 771 v. Lake G33, 6:1G Allanson p. Atkinson 909 Allard r. Kclfast 1086 v. Kimbtrlev 780 Allday v. Great Western Rail. Co. G92 Allen v, Addington 1045 c. Anderson 436, (149 v. Atkinson 4 29 v. Barker hi p. Bennet 94, 546, 548 r. Booker 921 v. Bower 1455 i'. Butler 210 i'. Cameron 118, 652, 825, 1331 v. Chambers 1451 v. Cook 963 v. Cooper 433 v. Culver G7, 468, 1385, 138 7 c. Doming 584, 588, 591, 51)2, 1017 v. Dundas 1099 v. Dykers 157 «\ Edgarton 1093 v. Ford 570 v. Gardiner 588, 590 v. Hammond 405, 517, 625, 1030 v. Harris 1122, 1180 v. Hawkes 584,811,996,1004 v. Hayward 863, 864 v. Ilearn 736 v. Holden 1361 v. Hopkins 1096 v. Impett 391 v. Jarvis 543, 1331 u. Kemble 131 v. Kimball 1110, 1111 v. Kino- 1135 r. MeKeen 898, 948 u. Merchants' Bank 142 v. Mercier 603, 607 c. Mille 1235 .-. Milner 11 SO, 1181 i>. Minor 203 r. Ogden 278, 279, 2S6 r. Pike 743, 744 v. Pink 638 «. Polereczky 60 ,: Prater 4 7 v. Rescons 972 v. Rightmere 739 v. Rostain 309 ('. Rou n tree 1261 v. Sevvall 681, 682, 683, 700 v. Smith 679, 1338 v. Stephanes 409 Allen v. Snndins 156 c. Thompson v. Walilegrave 750, 756 3S9 ,. Webb 1092 c \Vebste\j p. Wilkins 1239 224 i'. Willard 8G2 .. Yoxall 873 Allen's Estate 1453 Alley r. Deschamps Allhonse !>. Ramsey 1506, 1507 1190, 1205 Allies v. Probyn 1122 Allin r. Shadburno 1156, 1157 Allinson i\ Davics 825 Allis v. Billings 187, 189 Allison v. Haydon 807, 835 v. Monkwearmouth 1431 v. Rayner 815 r. Rutledge 741, 766 Allnut c. Ashenden 772 Alloway v. Braine 1507, 1508 Allport p. Nutt 945, 1010 Alna r. Plummer 99, 411, 426 Alner.r. George 1096, 1118, 1154, 1368 Alsager i: Currie 1286 i'. St. Katherine's Dock Co. 120 r. Spalding 940, 1054 Alsbrook v. Hathaway 906 Alshonse v. Ramsey 756 Alsop p. Caines 317 Alston c. Durant 271, 943, 944 r. Ileartman 303 <•. Herring 1086, 1087 v. State Hank 1266 Alton !•. Harrison 5 76 v. Midland Rail. Co. 859 p. Pickering 454 Alvanley r. Kinnaird 405, 1024, 1461, 1462, 1473 A Ives c. Hodgson 134 Alvord p. Baker 1103, 1105 Ambler (•.'Macon 213 Ambrose ,-. Kerrison 250, 888, 889 e. Nott 1433 Ambrouse c. Keller 1501 American Bank r. Doolittle 346 Contract Co. t . Cross 698 Express Co. p. Sands 690 Ins. Co. r. Oakley 378 Mutual Life Ins. Co. v. Owen 383 Amery's Appeal 838 Ames v. Chew 229, 251 v. Oilman 812 c. Hill 164, 169 i... Le Rue 1237 Amesbury v. Bowditch Mut. Fire Ins. Co. 1214 XX11 TABLE OF CASES. Amesbury W. & C. Manuf. Co. v. Amesbury 942 Amfield r. White, 473 Amherst Academy r. Cowlcs 32, 51, 1359 Amor v. Fearon 843 Amory e. Brodrick 619 v. Gilinan 735 !'. Hamilton 297 v. McGregor 1000 Amos v. Smith 1255 v. Temperly 309 Amott i>. Iloldon" 1236 Anderson v. Anderson 870 r. Browne 278 <;. Burnett C43 v. C'uonlev 284, 286, 294 i. Fitzgerald 1047 i>. G-.vj.l- 947 r. Harold 97 c. Havman 751 !•. Ilen,»lia\v 1140 c. Highland Turnp. Co. 1122, 1133 r. Ililli-s 1139 v. Knox 1398 v. Martindalo 1342, 1343, 1345, 1351 r. Midland Hail. Co. 453 r. Miller 1368 i. New Jersev Sec. Co. 858 !. Pitcher 115, 143 v. Rail d 'lifts 997, 998 !•. Roberts 50 7 v. Sanderson 1247 r. Scott 556 v. Thornton 766. 925 t>. Tompkins 345, 346, 352, 353 v. Van Allen 1367 v. Wallace 1505 r. Wa.de 1292 Andover v. Grafton 296,297 Andover &e. Turnpike v. Gould 1377 Andree ,\ Fletcher 946 Andres ii. L-e 626, 62S Andrew r. Dieterich 566 v. Hancock 473, 1 2(5 7 o. Macklin 130S c Newcomb 418 v. Pe:ircc 1395 Andrews r. Allen 309, 315, 966 c. Healls 7 79 ii. Keecker 1368 v. Hell 434 v. Boyd 55 v. Brown 1421, 1422 Andrews r. Dally 39 ° e. Durant 530, 531 r. Ellison 94 v. Ksscxlos. Co. 1024 r. Bstes 310,311 v. (Jarre tt 15 ,. Herriott 129, 133 v. His Creditors 128 ,. Ives 08, 69, 1003 v. Kneeland 282, 285, 286, 287,636 v. Lyons 8 v. Planters' Bank 350, 351 v. Pond 128, 131 i . Portland 829 u. Smith 755, 913 r. Wheaton 654 Andrus v. Andrus 346 v. Foster 837, 838 Angel p. M'Lellan 203, 21ft Angerstein r. Handson 472 Angiur i: Webber 1431 Angle r. M. & M. R. Co. 707 Anglo-Danubian Co. t;. Rogcrson 1424, 1434 Ankerstein r. Clarke 228 Annandale, Marchioness of, v. Harris 980 Anon. Alevn, 92 271 3 Arte. 726 1404 Biinl) 292 661 Cro. Kiiz. 68 1111 Dy. 23 (A) 1152 Dver, 48 396 1 Ksp. 349 1187 2 H.iyw. 99 353 2 Hill 3 75, note (i) 1066 1 Jiu-. S44 955 2 L. T. 00 1433 I Lev. 68 270 Lofft, 153 86 Moore. H 843 Mod. 114 5G5 II Mod. 40 344 12 Mod. 446 S44 12 Mod. 5'.'1 535 12 Mod. 564 276 Salk. 522 67.0 1 Salk. 44 193 I Salk. 260 1154 1 Salk. 2S0 102 1 Salk. 2S2 224 3 Salk. 157 518 3 Sulk. 190 203, 207 1 Show. 95 288 1 Sngden V. & P. 301 1491 4 Taunt. 30 954 4 Taunt. 722 954 4 Taunt. 870 960 TABLE OF CASES. XX1U Anon. 2 Ves. 629 319 6 Ves. 2-1 1503 1 Wend. 108 820 t'. Harrison 297 v. Jackson 687 v. Layneld 344, 358 t>. Pigott 940 v. Walford 1447 Ansell v. Baker 1160, 1161 v. Robson 370 v. Waterhouse 678 Anstey v. Emery 544, 559 v. Manners 241, 256 v. Marden 758, 1373, 1381 Anthony v. Leftwick 1430 Antoine v. Morslioad 261 Antoni v. Belknap 493 Anworth r. Johnson 467 Apgar r. Hiler 7G0, 894 Aplin v. Cates 1368 App «. Cornell 919 Appleby y.Dods 844,1080 v. Me vers 833 Applegarth v. Colley 1008, 1010 Applegate v. Hogan 600, 1202 v. Jacoby 126 Appleton v. Bancroft 555, 903 v. Bascora 70, 889, 890, 892 v. Binks 276, 310, 386 f. Campbell 582, 981 v. Chase 51, 921, 10G1 Aranguren v. Sehofield 1138 Arbouin v. Tritton 1288 Archard v. Horner 855 Archer v. Bamford 426, 653, 825, 1140 v. Baynes 548 v. English 1186 v. Hale 777 v. Hudson 777 v. James 837 v. Marsh 986 Archibald v. Thomas 112 Arden r. Patterson 1365 w. Pullen 471 v. Sharp 353 v. Sullivan 451 Arev v. Stephenson 1240 Ai-gall v. Bryant 1234 Argenbright v. Campbell 97 Argoll c. Cheney 1169 Arledge v. Rooks 425 Arlino-ton v. Hinds 304 i'. Merricke 762 Armfield v. Tate B17 Armiger r. Clarke 1479 Armistead v. Wilde 676,677 Armitage v. Insole 1087 v. Winterbottom 912 Armory v. Delamirie 1333 Arms v. Ashley 24,902,917 Armsby v. Farnam 1376 Armstrong v. Armstrong 1467 v. Baldock 574 v. Burrows 107 v. Carrow 949 v. Cooley 868 v. Gilchrist 292 v. Hussey 362 v. Kattenhorn 1453 v. Lewis 1005 v. McDonald 214 v. Perry 1328 v. Robinson 351 v. Smith '317 v. Toler 259, 583, 594, 748, 897, 973 Arnold v. Bainbridge 1290 v. Brown 345, 352, 360, 402 v. Camp 1140 v. Delano 596, 597 v. Dexter 1239, 1248 v. Downing 1254 v. Halenbake 289 v. Johnson 1110 v. Lyman 76. 77, 1375 f. Poole, Mayor of 21, 52, 379, 380, 381, 1115 v. Revoult 228 v. Richmond Iron Works 189 v. Stanford 1291 Arnott v. Redf'ern 953 Arrington v. Gee 960 v. Larrabeo 140 Arris v. Stukeley 948 Arthur v. Balch 867 v. Barton 295 v. Dartch 968 r. Schooner Cassius 285 Artz v. Grove 1458 Arundel v. Gardiner 999 Ascutney Bank i: Ormsby 422, 615 Ash i'. Pouppcville 1103 v. Putnam 565, 567, 602 t7. Savage 573 Ashbee v. Pidduck 1356 Ashby n. Asliby 375, 892, 950, 962, 964, 1404 v. James 1251, 1255 Ashcroft 17. Morrin 545 Ashe v. Livingston 929 Ashfield v. Aslifield 21 7 Ashford v. Robinson 92 Ashley v. Root 91 7 TABLE OF CASES. Ashley v. Warner 477 Ashmole v. Wainwright 941 Ashmtin c. Williams 500 Ashpitel v. Sercombe 926 Ashton v. Corrigan 1432 <•. llaigh 874 v. Wood 1488 Ashworth v. Stamvix 858 Aspdin !•. Austin 22, 89, 125, 839 Aspinall c. Piekford 688 <•. Wake 376 Asprcy <*. Levey 887 Astbury, ex parte 493 Astle v. Thomas 396 Astlev o. Ournev 1284, 1287 <-. Reynolds 272, 939, 941, 1189 v. Weldon 1050, 1314, 1315, 1316 Aston v. Heaven 683, 728 Astor >:. Miller 1397 v. Union Ins. Co. 116, 144 v. Wells 283 Atchinson r. Baker 791, 792, 793, 794 Atchison v. Gee 736 Atherfold v. Beard 736 Atherstone 8. Bostock 449 Atkin v, Arton 843, 848 r. l?arwiek 611 Atkins r. Bahrett 430 8. Banwell 52, 62, 393 v. Bovlston 1065 i'. Ch'ilson 1390 v. Curwood 237 v. Farington 1298 v. Humphrey 374 8. Owen 903 i. Ti-ed'.'old 1258 Atkinson v. Bavutum 40 8. Bell 530, 1331 v. Bra \ brook, Lord 953 c. Brown 160, 1062 v. Denby 940 v. Hawdon 1139, 1163 r. Horridge 655 v. Humphrey 515 8. Jones 960 8. Ritchie 620, 1074 v. Seott 621 i. Settreo 40 v. Smith 619, 1085, 1440 Atkyns v. Amber 31 G <-. Kinnier 985,986,1317,1320 .'. Pearee 249 Atlantic Dock Co. v. Leavitt 1399 Nav. Co. ii. Johnson 709 Atlas Bank r. Nahant Bank 1004 Atlee 8. Backhouse 49, 272, 911, 941, 943 Attleborough v. Middleborough 1103 Attenborough v. Edwards 1473 Atterbury v. Fairmanner 656 Attorney v. Ruper 396 Attorney General e. Ansted 282 8. Clapham 141, 147, 148 v. Dav 413,1450, 1457. 1 IKS, 1492 v. Dceifield Riv. Bridge Pro- prietors 1421 v. Gibhs 495 v. Merrimack Mrimif. Co. 60 «.. Riildle 232, 233 v. Sitwell 1029, 1459 Attwood v. Clark 1062, 1206 v. Emery 1063 v. Munnings 295 v. Partridge 1299, 1304 v. Small 282, 1036, 1039, 104!, 1042, 1476 Attwool v. Attwool 126S, 12U9, 1290 Atwater v. Clancy 638 v. Fowler 343 v. Hough 542 u. Woodbridgc 939 Atwood v. Cobb 91, 96, 160, 1062 v. Coburn 1242, 1254 v. Lucas 614 8. Reliance Transporta- tion Co. 689, 711, 713 v. Taylor 958 Aubert o. Maze 89 7, 974 v. Walsh 944 Aubin 8. Holt 1466 Audendried v. Betteley 8, 278 Augero u. Keen 764 Aulton u. Atkins 625 Auriol r. Mills 1399 Austen r. Craven 523 v. Ward 884 Austin v. Bo-twiek 1248 ('. C'harleslown Female Seminarv 222 8. Debram" 1267 8. Great Western Rail. Co. 727 8. Gwinnell 1015 i». Hall 1152 v. Henj-haw 929 u. Imus 958 8. Manchester &e. Rail. Co. 663, 692 v. Mills 87, 1171 v. Reed 645 v. Roberts 309 8. Sawyer 141, 417, 492 8. Smith uoi, 1127 8. Var.dennark 351 TABLE OF CASES. XXV Australian Royal Mail Steam Nav- igation Co. v. Marzetti 23, 382 Auty v. Hutchinson 389 Averill v. Hedge 15, 18 v. Loncks 1140 v. Taylor 441 Avery v. Bowden 1067 .'. Cheslyn 497, 499 v. Fitch 1172 v. Griffin 258, 1423, 1439 v. Halsey 897, 999 v. Langtbrd 1431, 1434 v. Scott 1183 v. Stewart 1064, 1066, 1209 Ayer r. Bartlett 538 v. Chase 85, 797 v. Hawkins 1253 v. Hutchins 749, 998, 999 v. Tilden 955 Ayers v. Hewett 1037, 1144 v. Richards 1239 Ayles v. Cox 1491 v. South Eastern Rail. Co. 732 Aylett v. Ashton 1439, 1440, 1490 Ayliff v. Archdale 206 v. Scrimshire 1146 Ayliffe v. Tracy 546 Aymar v. Sheldon 131 Aynsley v. Wordsworth 661 Ayre v. Hawkes 454 Ayres v. Parks 640 v. Pease 1200 v. Sleeper 917 Ayton v. Bolt 1242 Azemar v. Casella 517 B. Babb v. Clemson 536, 572, 1163 Babcock v. Bryant 743, 744, 782 v. Hawkins 1123, 1124 v. Herbert 682 v. May 150 v. Stone 348 v. Thompson 735, 945 v. Western Railroad Cor- poration 294 v. Wilson 51, 431 v. Wyman 14 74 Bach v. Owen 565, 619, 1072 Bachelder v. Fisk 787,890, 891,892, 893 Backentoss v. Speicher 566 v. Stahler 408 Backhouse v. Hall 768 v. Sneed 689 Backus r. McCoy 1398 Bacon v. Bowdoin 440 v.Brown 1093,1117 Bacon v. Charlton 1180, 1199 v. Chesney 777 v. Conn 1194 v. Gardner 1260 v. Simpson 175, 1484 v. Soudley 309 Baddley v. Mortlock 794 Badeley v. Vigurs 1396, 1397 Badger v. Bank of Cumber and 379 v. Gilmore 58 , 263 v. Phinney 200, 208, 218 219, 221 v. Titcomb 1172, 1180 v. Williams 992 Badgley v. Heald 847 Badlam v. Tucker 556 Baglehole v. Warlters 645 Bagley v. Peddie 1314, 1317, 1320 Bagot, Lord, v. Williams 1173 Bagshaw v. East Union Rail. Co 385 Bagueley v. Hawley 626 Baham v. Bach 40' , 408 Baikie v. Chandless 817 Baildon o. Walton 9C9, 1253 Bailey v. Bailey 1 264 v. Bamberger 205, 208, 219, 221 v. Bowen 1307 v. Calcott 242 v. Clark 322, 332, 358 v. Clay v. Colby v. Crane 621, 623 669 1239 v. Croft 33 v. Day 62, 63, 1101, 1127 v. De Crespigny v. Edwards 1076 7 75, 7 76 i. Forrest 655 v. Freeman 62, ■ v. Haines 882 v. Harris 586, 1005 v. Kilburn 462 v. Macaulay 336, 337, 338 f. Merrick 1042 v. Merrill 1040 v. Mogg 836 v. New York 861, 862 v. Nickols 631 v. Ogden 95, 544, ;■ .;....-,.,, v. Seal 960 v. Shaw 1333 v. Simonds 1062, 1205, 1206 v. Smith 519, 524, 615, 1331 v. Sweeting 96, 548 v. Taber 975 v. Taylor Baileyville v. Sewaf 1166 33 Baillie v. Kell 843 v. Moore 1379 Bain v. Case 953, 954 XXVI TABLE OF CASES. Bain p. Cooper 1152 v. Fothergill 435, 437 v. Whitehaven &c. Railway Co. 133 Bainbert v. Cohen 1120 Bainbridge v. Firmstono 31 r. Kinnard 1490 v. Pickering 202 v. Wade 761 v. "Wilcox 952, 958, 959 Baine3 v. Ewing 289 t\ Swainson 299, 307 Bainway r. Cobb 493, 494 Baird v. Cochran 355 o. Folliver 1317 t>. Matthews G40, G41 ... Rice. 781 Bakeman v. Pooler 1192 Baker c. Adams 479, 482, 483 i. Barney 242 v. Billericay Union, Guar- dians of ' 394 v. Briggs 784 t>. Brown 1274 v. Byrne 292 r. Cartwright 795 v. Charlton 345 v. Deering 550 v. Dewey 1150 v. Garratt 748 v. (hay 528 v. Greenhill 474, 885 v. Hathaway 1439 .-. Heard' 962, 1149 v. Higgins 847 c. Holtzapffel 513, 1074 v. Jacob 4 1 v, Jardinc 174 ..Keen 211 ,-. I.loyd 575 u. Mail' 1071 i-. Paine 1028 v. Sampson 247 v. Smith 789 v. Suckpoolc 1110,1113,1116 r. Townsend 992 c. Union Mut. Lifo Ins. Co. 8 t>. Wheeler 1334 v. Wliite 988 v. Woodruff G72 Bakter p. Bin-field 1412 Balcoin v. Richards 1256 Balden r. Pell 130 7 Baldey ,.. Parker 94, 533, 558, 559 Baldwin r. Alsagcr 164 i\ Boulter 1503 r. Collins 713 v. Lowe 143G v. Muun 436, 437 Baldwin v. Palmer . . U. S. Tel. Co. 416 084, 685, 691, 725 r. Western Reserve Bank 782 v. Williams 541 Balfe v. West 44 Balfour r. Ernest 385 Ball v. Dunsterville 352 v. Gilbert 735, 736, 919, 920 v. Stanley 1197 <-. Storie 1029 Ballantine v. Golding 1302 Ballard v. Greenbush 1358 v. Nooks 1122 v. Wait 560 v. Walker 5, 548 Ballentine v. North Missouri R. K. Co. 690 v. Robinson 1331 Ballou i: Spencer 321 f. Talbot 313,314,315 Balls r. Westwood 465 Bally v. Wells 1383, 1385, 1392 Balmanno v. Ltimlcy 1490 Baltimore i: Heffcrnan 943 Mayor &c. of, r. Hughes 881 e. Lefferman 271 Steam Packet Co. v. Smith 699 & Susq. R. R. Co. v. Faunce 880 Bamford v. Harris 1266 v. lies 762 Bampton v. Paulin 757 Banbury Union, Guardians of the, v, Robinson 184 Baneks v. Camp 106 Bancroft v. Dumas 584, 1001, 1114 r. Wardell 453, 454, 515 Bandy v. Cartwright 445 Bane's, William, case 372 Bangor Broom Corp. f. Whiting 382 Bangs v. Hall 1238 v. Strong 7 75, 782 Banister r. Usborne 542 Bank v. Barllett 785 i: Searles 32 Bank of Augusta o. Earlo 383 Australasia v. Harding 1174 Australasia c. Nias 1174, 1177 Chenango v. Osgood 1155, 1156 Columbia v. Patterson 352, 378 Commerce r. Union Bank 928 Cumberland r. Mayberry 589 Edwardsville v. Simpson 383 England i. Glover 878 TABLE OF CASES. XXV11 Bank of England v. Tomkins 877 Hamburg r. Johnson 286 Hamburg v. Wray 314 Kentucky v. Brooking 351 Lake. Erie v. Norton 27 7 Manchester r. Bartlett 784 Marietta o. Pindalf 383 Michigan v. Williams 383 Mis-ouri o. Benoist 931 N. Ann. v. Meredith 1117 Orange v. Brown 682 Rochester v. Gray 1 S3 Rochester v. Monteath 311, 344 Rutland u. Parsons 1003, 1004 So. Carolina v. Humph- reys 362 Steubenville v. Hoge 781 Tennessee v. Laffarans 350 Troy v. Topping 1135 U. S. v. Bank of Geor- gia 932, 1197 TJ. S. v. Binncy 329, 345, 349 U. S. v. Dandridge 22, 378 U. S. r. Davis 281, 283 U. S. o. Donnally 131, 132, 133 U. S. v. Lyles 1 260 U. S. !•. Lyman 304, 310 U. S. r. Macalester 668 Vergennes v. Cameron 351, 364 Washington v. Barring- ton 776 Washington v. Triplett 207 Westminster c. Whyte 1474 Wilmington & Brandy- wine i". Wollaston 763 Bankart v. Bowers 1085 Banks c. Goodfellow 191 v. Pike 127 7 Banks, The. v. Poitaux 378 Bann v. Dalzell 953 Bannerman il White 644 Bannister v. Breslauer 313 r. Weatherford 1084 Banorgee v. Huvoy 276, 285, 1161 Baptist Church v. Riaelow 413 v. Mulford 379 Barbc v. Parser 617 Barbee c. Willard 1084 Barber, ex parte, in re Shaw 224 Barber v. Brace 151 u. Britton 281, 286 r. lirown 908 I-. Fox 39, 372, 753, 755 v. G'mgell 932 v. Ketcham 739 Barber v. Lamb 1174 v. Mycrstein 708 v. Richards 1035 c. Waite 397 Barclay, ex parte 490 Barclay v. Kennedy 959 v. Lucas 767 Bard v. Yohn 868 Mardel v. Spinks 1036 Barden o. Keverberg 253, 254 Bardwell <>. Lydall 1116 Barelli o. Brown 1135 Barfoot v. Goodall 363 Barger v. Collins 343, 969, 1359, 1376 Barham v. Nichols 438 Barickman c. Kuydendall 422 Barina; v. Corrie 274, 307, 1097 " c. Dix 360 v. Lyman 344 r. Pierce 285 Bark v. Howard 234 Barker v. Belknap's Estate 834 v. Birt 962 l. Bucklin 76, 759, 1373, 1375, 1381 v. Harrison 14 74 f. Hodgson 1075, 1077 c. Howell 907 c. Jones 1203, 1205 v. Median. Ins. Co. 379 v. Parkenhorn 1192 v. Parker 766 v. Richardson 346, 1096, 1152, 1153, 1154 v. Roberts 672 ■7. St. Quintin 1149 i\ Stead 338 v. Troy & Rutland R. R. Co. 155 Bark lie r. Scott 331 Barksdale i: Brown 295 v. Morgan 1064 Bark worth v. Young 1447, 1454, 1458 Barley v. Walford 1044 Barlow v. Arnaud 621 r. Bishop 232 r. Browne 899, 902 v. Ocean Ins. Co. 46 i7. Reno 353 v. Scott 1422 r. Smith 52 v. Wiley 210 Barnaby v. Barnaby 210, 217 Barnard r. Bartholomew 951, 953, 1240 v. Cave 1462 v. Crane 945 xx vm TABLE OF CASES. Barnard v. Gushing 126, 137 v. Eaton 528 v. Lee 432, 433, 1069, 1479 1482, 1483, 1508 v. Poor 132!) Barnes v. Barnes 416, 419 v. Bliss 1210 v.Graham 1204,1211 v. Hedley 55 v. Jarrett 244 v. Perine 1 7, 32, 64 v. Wood 1436, 1437, 1489 Barnett r. Barnett 1S(! v. Brandao 1369 e. Lambert 338 v. Wheeler 430 Barney V- Brown 537, 555 v. Currier 359 c. Neweomb 136 v. Norton 1268 v. Prentiss 713, 715 Barolles r. Ramsey 197 Baron e. Husband" 899, 910, 915, 13X0, 13*1 Barr v. Gibson 517,1031,1076 v. Hatch j 572 v. Myers 1201, 1202, 1203, 1204 Barrell e. Benjamin 258 u. Trussell 24, 38, 94, 757 Barren v. Pettes 1018 Barrett's ease 1036 Barrett v. Allen lOGfi, 1209 v. Barrett 1239, 1281 u. Blagravc 1433 v. Buxton 192 r. Cambridge 934 u. Deare 1097, 1187 v. Goddard 519, 522, 598, 605, 60G, 614 c: Pritchard 520, 538, 596 v. Ring 1438, 1485, 14S7 i. Rogers 151 v. Rolph 422, 45!) v. Swan 320, 349 i. Winslow 1117 Barriek v. Buba 259 Barriugton v. Bank of Washington 116G, 11G7 v. Home I486 Barron r. Pettes 591 v. Richard 1390 v. West 117 7 Barrow v. Arnaud 1331 v. Barrow 1439, 1440 v. Paxton 573 v. Richards 1384, 1390 Barry v. Coonibe 95, 06 c. Goodman 172 v. Law 544 Barry v. Nesham 326 v. Page 315 v. Palmer 539, 1092 v. Ransom 146 Bars tow v. Gray 97,411, 548 Barter v. Wheeler 703, 704, 705, 70G, 710 Bartholomew v. Bushnell 645, 654 v. Finnemore 208, 209, 220 v. Jackson 34, 797, 824 v. Mark wick 615 Bartle v. Coleman 1003 Bartlett v. Attorney General 765 u. Blanehard 657 v. Cowles 220, 1093 v. Dimond 391, 392, 905 v. Drake 220, 648, 1093 v. Holbrook 1342 ii.Holmes 119,1333 v. Jones 327 v. Marshall 952 v. Mayo 1119,1142 v. Pearson 13G1, 1367, 13G8 v. Pentland 1098 v. Purnell 413, 552 v. Rickersgill 1459 v. Salmon 282,404, 1036, 1483,1491, 1493 v. Sew 327 v. Tuchin 434 w. Vinor 1004 v. Wells 195, 1312 v. Williams 571 r. Wvtnan 61 Bartley v. Hodges 1302 Barton i: Cordy 488 v. Fitzgerald 117, 118, 123,138 c. Glover 1315, 1320 v. Hanson 334 o. Port Jackson & Union Falls Plank Road Co. 971, 973 v. Stewart 1094 v. Wells 46 Bartonshill Coal Co. n. Rcid 858 Bartram v. Farebrother 604 Barwick u. English Joint Stock Bank 281,282,1036 Barwis, ex parte 1300 Bascom v. Young 347 Basford i>. Pearson 82, 422, 1439 Bash v. Bash 798 Bashford i . Shaw 744 Bashorc t: Whisler 627 Baskerville v. Brawn 1273 Baskett v. Cape 1458 Baskin c. Secchrist 4G4 Bason v. Hughart 758 TABLE OF CASES. XXIX Bass v. Bas 1217, 1219 v. O'Brien 804 Bassctt v. Collis 655 v. St. John of Jerusalem, Prior of 1189 v. Sanborn 828, 830, 831 Basten v. Butter 652 Baston v. Bennett 770 Batard v. Hawes 786, 787, 890, 892, 894, 895 Batchelder v. Batchelder 477 v. McKenney 796 v. Sturgis 1327 r. Wendell 7U Batchelor v. Laurence 788 Bate v. Burr 301, 951 v. Cartwright 738 v. Paine 885 Bateman v. Ashton, Mayor of 385 v. Johnson 432 v. Phillips 150, 305, 544 i'. Pinder 1245, 1262 Bates v. Bates 1190 v. Cort 21 v. Delavan 405, 1488 v. Hewitt 1 046 v. Keith Iron Co. 293, 294 v. Starr 951 v. Stevens 226 v. Todd 7 v. Townley 887, 964 Batson v. Donovan 663, 697 v. King 760 Batterbury v. Vyse 833 Batterman v. Pierce 117 Battersby v. Lawrence 836 v. Smith 1000 Battersey's case 748 Battle v. Rochester Citv Bank 928, 1119 Battles r. Fobes 1 224 Battley v. Bailey , 328 v. Faulkner 1214, 1215, 1233 Batters v. Sellers 151,549,637, 638 Batty v. Carswell 285 v. Duxbury 861 v. M'Cundie 332 v. Marriott 1008, 1010 Baudac v. Nicholson 1178 Bauennan v. Kadenius 1154 Baumann o. James 96 Baxendale v. Eastern Counties Rail. Co. 687, 941 v. Great Eastern Rail. Co. 720 v. Great Western Rail. Co. 687, 941 v. Hart 719 Baxendale v. Seale 1031, 1033, 1473 Baxter v. Bush < 208 o. Clark 358 v. Conolly 1431 v. Duren 302, 627, 931 v. Gray 422. 798 v. Nurse 841 v. Penniman 1252 i). Rodman 324 v. Smith 401 v. Wales 30 Baxter & others v. Portsmouth, Earl of 188, 189 Bay v. Cook 314, 315 v. Gunn 221 Bayard v. Shunk 1107 Bayley i\ Ashton 1256 r. Beaumont 875 v. Bryant 292 v. Buckland 938 v. Fitzmaurice 93 c. Gouldsmith 618 v. Homan 1122 v. Lawrence 468 v. Rirnmell 841, 852 v. Wilkins 883 v. Wynkoop 1112 Baylie e. Clare 272 Baylies v. Baylies 1468 v. Fettyplace 1077 Bayliffe v. Butterworth 84, 883 Baylis v. Dineley 206,217,220 Baylor v. Smithers 572, 573 Bayly v. Schofield 600 Baynham o. Holt 963 Baynon v. Batley 249 Bay State Bank u. Kiley 474, 483, 485 Bazeley v. Forder 247 Bazin o. Steamship Co. 711, 725 Beach v. Gray 514 v. Hotchkiss 343 v. Mullin 844, 848 v. Raritan &c. R. R. Co. 18 v. Sheldon 1043 v. Steele 431 r. Vandenburg 881 Beachy v. Brown 792 Beal v. South Devon Rail Co. 693, 727 • v. Warren 7 Beale t>. Hayes 1317, 1320 v. Mouls 333, 358 v. Nind 1245 v. Sanders 447, 468 Bealey v. Greenslade 1 252 Beall v. Williamson 572 Beals p. Allen 285 v. Olmstead 632, 640 XXX TABLE OF CASES. Beals v. See 401 v. Terry G21 Beaman v. Buck 81, 028 v. Kustell 11C5, 11GG, 11G7 Bean v. Atwater 1082 r. Burbank 24 r. Green 713, 714, 715 v. Herrick 1041 v. Jones 60, 934 v. Morgan 254 <:. Simpson 1204, 1367 i'. Smith 566 v. Sturtevant G83, 700 v. Viillc 92 p. Wendell 1179 Bear i'. Bromley 1013 Bearce r. Barstow 939 Beard v. Dennis 982, 984 v. Kirk 278, 279 ( . Simmons 1263 i». Webb 255 Beardslee /. Richardson 6G2, 6G5 Beardsley v. Boot 902 p. Warner 786 Beardsley Scythe Co. v. Fester 1435 Bears i. Ambler • 467 Beattie v. Ebury, Lord 313 v. Robin 572 Beatty v. Gibbon 509 Beauchamp v. Powley 665 Beaufort, Duke of, .'. Bates 490, 501 v Glynn 1481 v. Neeld 284, 290 ..Patrick 1455 v. Taylor 284 Beaumont v. Brengeri 560, 592 i. Crane 638 r. Field 149 r. Greathead 1103, 1322, 1323 t v. Reeve 53,54,57,979 Beavan, ex parte 958 Beavan i. Lewis 357 r. M'Donnell 191, 401 v. O'Donnell 401 Beavans i: Recs 1094, 119G Beawfage's ease 999 Bea/.ley v. Mitchell 534 Bebee t\ Dudley 744 v. Robert 309 Beck r. Rcbow 498, 494 Beckham v. Brake 5 v. Drake 26G, 268, 304, 305, 309, 330, 1317, 1411, 1414. 141.5, 1417 v. Knight 329, 330 Becklcy v. Munsbn 891, 895 Becknmn r. Shous-e G91, 713, 714, 715 Bcckwith v. Baxter 292 Beckwith v. Chcever Becquet v. M'Carthy Beddall v. King Beddoe v. Wadsworth 11, 16 1308 1382, 1399, 1400 Bedel v. Loomis 30 Bedell v. Powell 795 Bedford v. Bashaw 1038 Bedford Com. Ins. Co. v. Covell 309 Beebe v. Robert 636, G37, 649 Beech r. Eyre . 337 v. Jones 747 Beeeham v. Dodd 319, 320 v. Smith 1355 Beecher v. Conradt 1086 e. Great Eastern Rail. Co. 724 v. Mayall 522, 1093 Beeehing v. \Vestbrook 1G5. 169 Beeckcr i>. Beecker 373, 1381 Beed v. Blandford 1093 Beedle v. Morris 675 Beekman v. Hall 743 v. Shousc 680, 683 Beeler v. Bullitt 222 v. Young 196, 197, 198, 207 Beeley v. Wingficld 992, 998 Beeman v. Buck 643, 644 v. Lawton 669 Beer v. Beer 139 Beers v. Crowell 541 v. Robinson 76, 1375 Bees v. Williams 460 Beeston c. Collycr 101, 840, 841, 842 Behaly v. Hatch 1192 Behn v. Burness 639, 1046 Bchrens e. Great Northern Rail. Co. 719 Beioley v. Carter 1498, 1500 Bcirne v. Dord 630, 637 Belch v. Hallowman 1173 Belcher v. Campbell 1367, 1419 v. Llojd 1286 v. Mcfntosh 468 v. Mills 946 v. Oldficld 913 v. Smith 739 Belchior v. Reynolds 1482, 1504 Belden v. Davies 6 v. Pitkin 971, 997 v. Seymour 1119 Belding v. Read 528 Beldon v. Campbell 295 Belger r. Din f more 696 Belknap t. Rcinhart 386 v. Scaley 405 Belknap's, Lady, cate 252 Bell i. Banks 780, 781, 1354 v. Bell 225, 1119 TABLE OF CASES. XXXI Bell v. Brucn 104, 121, 739 <.: Cary 1285 v. Chaplain 1347, 1350 v. Cowgill 1273 v. Cunningham 292 v. Ellis 453 v. Gardiner 930, 1163 v. Kellar 743 v. Logan 951 v. London & North Western Railway Co. 1367 v. Marl in 775 v. Morrison 1215, 1237, 1239, 1248, 1252 0. Moss 609, 610 v. Nixon 296 v. Palmer 805 v. Quin 1003 v. Reid 260 v. Rowland J 1239 v. Smith 996 v. Walsh 742 r. Woods 992 Bellairs o. Ebsworth 766 Bellamy i>. Liversidge 1445 v. Sabine 1477 Bellasis v. Burbrick 447 Bellimire v. Bank of U. S. 297 Bellingham i\ Clark 1278 Bellows i: Lovell 779 o. Smith 1196 v. Stone 1458 v. Wells 522 Bellringer r. Blagrave 1468 Bellworlh v. Hassell 404 Bellzhoovcr v. Yewell 1253 Belote v. Wynne 1248 Bclshaw v. Bush 1133, 1134 Belt v. Marriott 555 Belton v. Hodges 205 Bement r. Smith 1330 Bemis v. Hoseley 63 r. Morrill 522 Bemus v. Howard 808 Bench v. Merrick 794 Benden !>. Manning 665, 666 Bender v. Bender 436 v. Sampson 1148 Bendernagle v. Cocks 1172 Bendiz c. Wakeman 226, 1400, 1402 Bendry v. Price 1020 Benedict v. Bebee 420 v. Da.vu 331 v. Lynch 25, 1465, 1474, 1506 v. Morse 462, 475, 477 v. Smith 291, 292 Benham v. Bishop 216,217 t\ Broadhurst 1306 Benham v. Mornington, Earl of 129 v. United Guaranty Co. 1044 Benjamin v. Benjamin 232, 821 v. McConnell 105, 123,141 v. Porteus 321, 334 v. Stremple 681 Bennet v. Carter 413 r. Judson 1036 v. Paine 47 Bennett v. Bartlett 626 <-. Bittle 465, 1081 v. Brooks 591 r. Clongh 978 v. Davis 206, 1220 v. Dutton 684, 727, 728, 729 v. Filyaw 682, 704 v. Francis 569 p. Hull ' 541 v. Mellor 674, 677 €.-. Oliver 1439 v. Peninsula & Oriental Steam Packet Co. 726 v. Piatt 530 v. Pratt 92 t>. Sims 538 i. Smith 1428, 1434 v. Waller 1388 v. Womack 473 Bennett College v. Carey 1068 Bennington p. McGinnes 81 Benoist p. Darby 1 265 Benskin v. French 999 Bensley p. Bignold 836, 974, 1005 Benson p. Drake 588 v. Monroe 930, 933, 934, 936, 948 u. Remington 213, 214 p. Schneider 115 t). Thompson 881 Bent u.Cobb 413,414,553 v. Hartshorn 769, 770 t\ Manning 196, 207 Bentall v. Burn 555 p. Sydney 875 Bentham c. Cooper 761 Bentlev p. Craven 1499 v. Griffin 236 r. Mackay 1029 p. Morse 52 Bentliff r. Garnett 575 Benton p. Burgot 1178 p. Jones 7, 1475 Benyon p. Jones 226 Bergen p. Bennett 281 Bergman p. Roberts 463 Berkeley p. Elderkin 87 v. Hardy 306 Berkley p. Watling 7 TABLE OF CASES. Berkshire Woollen Co. v. Proctor 674, 675, 676 Berly v. Taylor 86 Bernales ,-. Fuller 950 Bermij-eoni v. Anderson 965 Bernard v. Torrance 361, 386, 1140, 1379 Berndtson v. Strang 604 Bernstein v. Baxendale 716 Berrey v. Lindley 482 Berridge r. Abbott 1306 Berril c. Smith 589 Berringer c. Snead 160 Berrington u. Phillips 950 Berry i>. Bates 114 7 u. Da Costa 793, 795, 1336 ». Van Winkle 1421 o. Young 433 Berry hill c. Wells' 954 Bertie i: Beaumont 513, 843 Bevtseh k. Lehi'ih Canal & Nav. Co. 141 Berwick r. Horsfall 104 Berwick, Mayor ^c. of, v. Oswald 764, 1131 Besaneon v. Shirley 1199 Bestord ... Saunders 220, 263 Bessell i . Landsberg 460 Bessey v. Windham 575, 1037 Best r. Givens 205 ,.. Jolly 59, 68 v. Lawson 1273 i . Osborne 655 o. Slow 1028, 1461, 1474 v. Strong 945 Peswick v. Swindells 121, 1079 Eethell o. Blencoe 166 letteley «. .McLeod 873 ,: Reed 919, 1351 Betterbee <-. Davis 1189 Betton <-. Cutts 1241, 1246, 1250,1262 1263, 1264 Bettsw.Ban.-h 1317 r. Gilibins 748, 897 v. KimpLon 224, 1403 v. Neilson 1422, 1423 v. Starr 1176 Bevan u. Cullen 1217 i'. Delahay 507 v. Geething 1253 t>. Lewis 347 v. Waters 802 Bevans v. Rees 1189, 1194, 1196 v. Sullivan 340 Beverley's case 187,188 Beverley v. Lincoln Gas Light Co. 82, 380,381,618 Beverlys i>. Holmes 5, 24 Bevin v. Chapman 1260 Bexwell v. Christie 406 Beyer v. Adams Bianehi v. Nash Biekell v. Colton Bickerton v. Burrell Bickford P . Gibbs o. Page v. Parson Bieknell i>. Hood v. Keppell Bidault ii. Wales Biddell v. Leader Biddis i'. James Biddle r. Bond e. Dowse v. Levy r. Reed Biddlecombe v. Bond Bidgood v. Way Bidwell c. Cation Bilfin u. Bigncll Bigelow c. Baldwin v. Collamore . Crossley 1105 Bleeker v. Hyde 711, 744 Blenkinsop v. Clayton 5C4 Blennerhasset v. Day 402 Blew v. McClelland 1484 Blight v. Ashley 1192 i . Page 6 7 v. Tobin 348 Blin v. Chester 1101, 1124 v. Mayo 668 v. Pierce 1365, 1367 Blish <>. Harlow 481 Bliss r. Clark 285 u. Mclntire 1167 v. Negus 653, 924 (,. Thompson 938 v. Whitney 493, 494, 495 Blithman !•. Martin 999 Blodgutt c. llobart 1459 Blood v. Enos 797, 827, 846 v. Goodrich 150, 276, 291 v. Hardy 156, 1148 Bloodgood v. Bruen 1239, 1241, 1250 Bloomer ». Denman 899 Bloomfield i>. Chagrin 214 Blore if. Sutton 1455, 1450 Bloss if. Clanmorris, Lord 1496, 1498 «. Kittredge 646 Blossom e. Dodd 696 v. Griffin 686 Blot o. Boici-n.il 281 Blount i'. Bestland 223, 225, 226 o. Starkey 1103, 1105 Blow v. Russell 1189 Blower v. Great Western Railway Co. 689 Blowers v. Sturtevant 241 Bloxam o. Morley 1416 Bloxam v. Saunders 597, 601, 618, 724, 1416 Bloxsome v. Williams 23, 590, 591 Bluck v. Gompertz 762 Bluehill Academy v. Ellis 1241 Bluett v. Osborne 631 Blumenthall v. Brainard 708 Blunt v. Little 1337 Blydenburg v. Welsh 621 Blymire v. Boistle 75 Blyth v. Dennett 488 v. Lafone 1183 9. Smith 747 Blythewood v. Everingham 255 Boardman v. De Forest 1104 «\ Gore 332, 348, 358 is, Keeler 329, 436, 437, 438, 572 v. Mostyn 1455 D.Paige 787, 891, 892, 894, 895, 1257 v. Roe 939 v. Silver 245 v. Spooner 143, 157, 545, 551, 555, 638, 648 Boase v. Jackson 173 Boast if. Firth 854, 1078 Bobo v. Hansell 220 Boddington r. Castelli 1269, 1303 Boden v. French 115 Bodenhani v. Bennett 721 v. Purchas 1108, 1116, 1118 Bodger v. Arch 1255 Bodwell >s. Osgood 1336 Bochm v. Wood 433, 1480 Bogart v. Burkhalter 9, 440 v. De Bussy 317 v. Nevins 898 Bogert v. Vermilyea 1248 Bogg v. Pearce 389 Boggett u. Frier 254 Boggs if. Curtin 890, 1315, 1349, 1350 Bog Lead Mining Co. v. Montague 526, 555 Bohanan if. Pope 76 Bohannon v. Pace 423 v. Paterson 821 Boies y. McAllister 1336 Boinest v. Lcignez 645 Boisgerard ( >. New York Banking Co. 925 Bold v. Rayner 152 Bolden a. Brogden 654 Boldt v. N. Y': Central R. R. Co. 858 Bolin v. Hoffnagle 604 Bolingbroke's, Lord, case 1485 Bolitho, ex parte 356, 357 Bolland c. Nash 1286 Bolles if. Stearns 619 TABLE OF CASES. XXXV Bollinger v. Eckhert 141 Bolt v. Watson 1143 Bolton, ex parte 1235 ■v. Carlisle, Bishop of 1169 v. Hillersden 289 v. Lancashire and York- shire Rail. Co. 604 v. Lawrence 870 v. Lee 1355 v. Prentice 233, 238 Bomar v. Maxwell 698, 702, 727, 728 Bomeisler v. Dobson 103 Bonaffe v. Woodbury 1111 Bonar v. McDonald 765 Bonbonus, ex parte 351, 353, 358 Bond i;. Aitkin 357 v. Clark 640 v. Gibson 348 v. Hayes 342, 928, 939 w.Jay 1220 v. Jones 939 v. Nurse 392, 905 v. Pittard 322, 328 v. Rosling 447 v. Simmonds 1402 Bone D. Ekless 918 Bonnell v. Chamberlin 1118, 1135, 1136, 1140 Bonner v. Marsh 722 t>. Merchants' Steamboat Co. •• 702 v. Wilkinson 54 Bonney v. Seely 740, 879, 880, 891, 895 Bonsey v. Wordsworth 1172 Boody v. McKenney 194, 208, 217, 218, 219, 1093 v. Rut. & Burling. R. R. Co. 1071 Bool v. Mix 194,206,219 Boone v. Eyre 1082 Boorman v. American Express Co. 696 v. Brown 296 v. Jenkins 637, 638, 650 ».Nash 621,1090,1299, 1331, 1334, 1416 Booth v. Hodgson 897 u. Macfarlane 476 v. Mister 867 v. Pollard 1467 v. Smith 1128, 1133, 1135 Boothbey v. Sowden 1051 Borah u.Curry 1110,1203 Boraston v. Green 145, 451, 506 Borden v. Borden 1080, 1087, 1192, 1193, 1201 Boreing v. Singery 1039 Borell b. Dana 1501. 1503 Born v. Shaw 572 Borradaile r. Brunton 654, 1329 Borradaile v. Hunter 138 Borrekins v. Bevan 633, 636, 637, 641, 649 Borries v. Hutchinson 621, 624, 1326 Borrowman v. Rossel 1034, 1311 Borthwick v. Carrathers 221, 1292 Bosanquet v. Wray 343, 1 1 1 1, 1 1 1 3 Bosley v. Porter 1111 Bostick v. Win ton 627 Bostock v. Jardine 922 v. Sidebottom 105 Boston v. Binney 511,515,516,907 u. Capen 31 i\ Preston 934 v. Worthington 467 Boston Bank v. Chamberlin 219, 222 Boston Hat Man. Co. v. Messinger 764, 765 Boston Iron Co. v. Hale 288, 289 Boston & Maine Railroad v. Bab- cock 1456 Boston & Maine Railroad v. Bart- lett 11, 13, 14, 16, 1505 Boston & Sandwich Glass Co. v. Boston 942 Bostwick, in re 213,214 Bostwick v. Leach 420, 494 Boswell v. Kilborn 615, 1331 v. Mendham 1499 v. Smith 1105 v. Tunnell 1170 Bosworth v. Frankberger 1202 v. Swansey 1018 Bothlingk v. Inglis 604 Bothoniley v. Usborne 367 Botsford v. Every 590 Botting o. Martin 458 Bottomley v. Brooke 1281 v. Forbes 158 Bottrell v. Summers 121 Botts v. Cozine 275 Bouchell v. Clary 198 Boucher v. Van Buskirk 1465 Boulnois v. Mann 1307 Boultbee v. Stubbs 781 Boulter v. Arnott 556, 558, 564, 614 v. Peploe 342, 895 Boulton v. Bull 1035 u. Dobree 259 v. Prentice 245 Bound v. Lathrop 1248 Bourdillon v. Roche 349 Bourne v. Cabot 1359, 1365 v. Freeth 325, 336, 339 v. Gatliffe 132, 152, 689, 708, 709, 711 v. Mason 75 v. Seymour 117, 1060 Bouser i'. Cox 77 7 TABLE OF CASES. Bousfield v. Godfrey 177,178,180 v. Wilson 918 Boussmaker, ex parte 259 Boutelle v. Melendy 592, 933, 945 Boutwell v. Foster 584 v. Mason 1111 Boville v. Hammond 340, 342 Bowdage v. Attorney General 765 Bowdefl v. Parsons 619 Bowdes v. Amherst 1453 Bowditch v. Green 786 Bowen v. Ashley 174 v. Bell 422, 1119 v. Buck 991 v. Burke 539, 596 v. Fox 166, 170 v. Lake Erie Tel. Co. 723 v. N. Y. Central R. R. Co. 726 i). Owen 1195 Bower v. Cooper 403, 1477, 1503 v. Major 477, 660 D. Swadlin 346 Bowerbank v. Monteiro 106, 374 j. Morris 279 Bowers v. Cator 1451 v. Jewell 1163, 1166, 1168 u. Johnson 282,-1036, 1049 i. Lovekin 837 Bowes v. Croll 452 c. Foster 8, 533, 1119 v. Tibbets 85, 797 Bowker v. Burdekin 5 v. Harris 1101, 1252 v. Hoyt 599, 617, 1059, 1209 v. Lowell 271 Bowlby v. Bell 541, 883 Bowler v. Brown 812 Bowles v. Johnson 874 v. Bound 1059 i>. Stewart 1035, 1154 Bowmakcr v. Moore 777 Bowman r. Bailey .".20, 324 v. Blodgett 364 v. Hilton 682, 705 v. Tallman 813,818 v. Taylor 7 v. Teall 682, 690 v. Woods 808 Bowne v. Joy 1171 Bowring i\ Fmslie 1 20 Bowry v. Bennet 582, 981 Bowser v. Bliss 983 Bowyer v. Anderson 321 v. Bright 1496 v, IVIartiii 143 v. Peake 240 Box v. Stanford 1450 Boyce v. Anderson 684, 727 v. Britchett 956 Boyce v. Edwards 131, 960 v. Green 420 v. Grundy 160, 1041 v. M'Culloch 155 u. Owens 756 Boyd v. Brotherson 107, 1169 v. Brown • 1336 v. Browne 1044 v. Croydon R. R. Co. 378 u. Davis 1180 v. Dodson 291 v. Grant 1246 v. Graves 419 v. Hind 1052 v. Hitchcock 62, 1103, 1128 v. Lett 619 v. McConnell 1168 v. Mangles 1288, 1304 v. Moyle 17, 741 v. Plumb 351 v. Robbins 1298 t. Sborrock 493 v. Siffkin 620 v. Vanderkemp 283 Boydell v. Drummond 96, 100, 102, 147, 1245 Boyden v. Boyden 200, 208, 218, 222 u.Moore 1188 Boyer v. Blackwell 406 u. Pack . 930 Boyes v. Bluck 1150 Boyle v. Agawam Canal Co. 672, 833, 1078 v. M'Laughlin 689, 702, 710 Boyman u. Gutch 427, 428, 429 Boynton o. Hazelboom 1439, 1474 v. Kellogg 790, 793 u. Page 590, 1019 v. Veazie 537, 556 Boys u. Ancell 1317 v. Pink 720 Boyse v. Rossborough, Lord 1445 Boyson v. Coles ■ 277, 534 Boyter v. Dodsworth 899, 948, 949 Brace v. Wehnert 1428, 1430 Bracegirdle v. Heald 100, 102, 842 Bracey v. Carter 813 Bracken v. Miller 283 Brackett v. Blake 529,1361 v. Crooks 615 v. Evans 420, 422 v. Hoyt 587 v. M'Nair 621 v. Mountfort 1163 ^Norton 79,129,817,1097 v. Winslow 788 Bradburne v. Botfield 1341, 1342, 1343 u. Bradburne 68 TABLE OF CASES. XXX VI 1 Bradbury v. Anderton 570 v. Morgan 785, 1413 v. White 1028 v. Wright 473 Bradfield v. Tupper 1255 Bradford v. Bush 287, 640 v. Eastburn • 308, 315 v. Kimberly 804 v. Manly 150,637,638,641, 925 t>. Marbury 607 v. Tappah 517 Bradlee v. Boston Glass Co. 311 Bradley v. Basley 1422 v. Davenport 511 v. Gregory 1127 ». Hale 533 v. Heath 372 v. Holdsworth 420, 541 v. James 1256 v. Lea 589, 592 v. Munton 1485 v. Norton 1043 v. Obear 567 t>. Pratt 196, 199, 206, 220 v. Rea 589, 592, 659, 1019 i. Richardson 275, 276 v. Salmon Falls Manu£ Co. 840 v. Spofford 802 v. Wash. A. & G. Steam Packet Co. 149 v. Waterhouse 697, 720 v. Wheeler 537 v. White 321, 327 Bradshaw v. Beard 250, 888 !>. Bennett 439 v. Bradshaw 940, 1054 v. Eaton 203 Bradstreet o. Clark 1222 Brady v. Calhoun 320 v. Giles 865 u.Hill 1111 v . Mayor &e. 811,835 v. Oastler 624 v. Todd 287 Braorg v. Boston & Worcester R. R. Corp. 277 v. Cole 421, 617, 1094 v. Fletcher 1217 v. Massie 1475 Brailsford v. James 1240 Brainerds v. Champlain Transp. Co. S51 Braithwaite v. Skinner 373 o. Skofield 336 v. Watts 903 Bramah v. Roberts 349 Braman v. Howk 779 Bramley v. Chesterton 488, 1326, 1327 Bramston v. Robbins 904,931,1110 Branch v. Burnley 1097 Branch Bank v. Boykin 263 of Mobile v. James 36, 63 Brandu. Boulcott 1350 Brandao b. Barnett 300, 1369 Brandon v. Brandon 786 ,. Hibbert 919 t>. Nesbitt 258 u. Newington 1198 v. Old 192 Brandrum v. Wharton 1258, 1259 Brandt v. Bowlby 528, 621 v. Heatig 1405 Branley v. South Eastern Rail. Co. 687 Branscome v. Bowcliff 1179 Brashford v. Buckingham 229, 257 Brashier v. Gratz 434 ». Jackson 443 Brass v. Maitland 699 Brassington v. Ault 1406 Bratt v, Ellis 435, 438 Braun stein w. Accidental Death Insurance Co. 1184 Brawley v. Wade 478 Bray v. Fromont 326 v. Kettell 315 p. Manson 169 v. Mayne 680 Braynard o. Fisher 1268 Brayshaw v. Eaton 203 Braythwavte v. Hitchcock 162,179, 452 Break v. Douglas 1348 Brealey v. Collins 1501 Breck v. Cole 160 Breckenridge v. Baltzell 1217 o. (tnnsby 222 u. Shrieve 349 v. Taylor 951 Brecknock Co. v. Pritchard 468, 1074 Brecon v. Smith 963 Bredin v. Dubarry 291 v. Ringland 813 Bree v. Holbech 439, 1234 Breed v. Hillhouse 55, 744 o. Hurd 1192 v. Judd 198, 200, 201 v. Pratt 189 Breese v. U. S. Tel. Co. 684, 691 Breinig v. Meitzler 242, 245 Breithaupt v. Thurmond 430 Bremer v. Freeman 129 v. Harris 1064 Bremner v. Williams 729, 730 Brennan a. Bolton 1454 XXXV111 TABLE OF CASES. Brenner v. Herr Brent v. Green Brenton r. Davis Bret v. G. S. & Wife Brett v. Close 1126 413 632 59 991 v. East India &c. Co. 1432, 1408 .;. Jackson 1300 v. Pretyman 32 v. Read 511 Brettel v. Williams 349, 350, 351 Brewer v. Brewer 1239 v. Craig 453 v. Dew 1415 v. Dyer 7G, 1365, 1375 ». Hardv 111 v. Herbert 1484 c. Jones 872 v. Knapp 1110 <■. Palmer 175, 512 f. Salisbury 524 v. Tyringham 952, 955, 1336 Brew-ter r. Countryman 155 ..Etlgerly 1317 v. Hardeman 1237, 1245, 12-19 c. Hobart 297 i). Kitehin 107 7 v. Mott 355 u. Silence 92, 139 Breyfogle r. Becklev 952 Brian r. Williamson 584 Brice r. Wilson 375 Brieker v. Hughes 417 Brick Pros. Church v. New York 1077 Briddon r. Great Northern Rail. Co. 6X5, 1075 Bridge v. Cage 869, 1001 v. Grand Junction Rail. Co. 733 (". Wain 115 Brid-er v. Rice 1468 Bridges v. Bedingfield 1088 v. Berry" 11.17, 1144 r. Piirc'cll 418 c. Stickne\ r 1327 Bridges ater Acad. u . Gilbert 51 Bridgman v. Dean 48 Brierlv v. Cripps 343 Brig Sarah Ann, The 519 Brig'.;.-* r. A Lijht Boat 531, 532 c. Boston & Lowell R. R. Co. 705 c. Calverly 1191 v. Dorr 1366 i. Georgia 811 v. Parkman 573 v. Sowry 36 7 v. Taylor 663 Briggs v. Tillotson 73, 971 v. Vanderbilt 705, 921 v. Williams 1112, 1114 v. Wilson 1258 Brigham v. Bigelow 133, 1224 v. Clark 326 v. Eveleth 342, 907 v. Foster 811 v. Peters 288, 292 v. Wentworth 765, 776 v. Winchester 907 Bright v. Eynon 1035 c. Rowland 1317 Brighton Arcade Co. v. Dowling 1289 Brighty v. Norton 116 Brigstoeke v. Smith 1241, 1243 Brill v. Necle 1334 BrinckerhofT v. Phelps 437 Brind v. Dale 684, 687, 701 v. Hampshire 914, 915 Bringloe v. Goodson 1318, 1395 v. Morrice 668 Brink v. Dolsen 317 Brinker v. Brinker 1431 Brinkley r. Hanu 1475 Brinley v. Kupfer 340 v. Mann 311 v. Spring 556 v. Tibbets 1092 Brintnall v. Saratoga & Whitehall R. R. Co. 705 Brisban v. Boyd 18, 362 Brisbane v. Dacres 933, 934, 935, 936 Briscoe v. Stephens 1173 Bristol v. Sprague 361 Dean of, v. Jones 469 Earl of, r. Wilsmore 566 & Exeter Rail. Co. v. Col- lins 704, 706 Bristow v. Eastman 207,1100 c. Setpieville 134 u. Taylor 280 !•. Whitmore 282 u. Wood 1384 Bristowe r. Needham 877, 1281 British American Land Co. v. Ames 383 American Telegraph Co. v. Colson 15, 18 Columbia Saw Mill Co. o. Nettleship 725, 1325 Empire Shipping Co. v. Somes 803 Linen Co. v. Drummond 134 Brittain v. Lloyd 880, 8S1, 884 Britten v. Hughes 1052, 1158 u. Wait 1020 Britton v. Cole 261 TABLE OF CASES. XXXIX Britton v. Turner Brix v. Brahara Broad v. Jolyffe v. Thomas Broadwater p. Bolt 89, 200,845,846 263 982 803 674 193 102 679 956 1120 313 834 147 655 1086 1039 1082 1411 957 280 1201, 1202 542, 543, 1211 386 395 293 1036 . 215 v. Darne Broadwell i>. Getman Broadwood p. Granara Brockenborough v. Blythe Brocket v. Foscue Brockway v. Allen Brodie v. Howard v. St. Paul Broenburgh v. Haycock Brogden p. Marriott v. Walker Brokenbrough p. Ward Bromage v. Lloyd Bromley p. Goodere v. Holland Bronson v. Gleason v. Wiman p. Woolsey Brook p. Guest v. Hook Brooke p. Berry v. Galley v. Mostyn, Lord 29, 46, 47, 50 v. Pickwick 697, 698, 721 p. White 615, 1101, 1142 Brooke, Lord v. Rounthwaite 1476, 1495 Brooker p. Scott 195, 202 u.Wood 587 Brookes v. Bockett 810, 968 v. Davies 1121 v. Elkins 169 p. Stuart 1151 v. Whitworth, Lord 1444 Brookfield v. Allen 246 Brooklyn Bank v. De Grauw 1122, 1194 p. Waring 55 Brooks v. Ball 32 v. By am , 1080 v. Chesley 1242 v. Evans 334 v. Hubbard 623 v. Penn 668 v. Powers 571 v, Stuart 1356, 1357 v. Wheelock 1028, 1450, 1461 u.White 62,63,1101,1102, 1103, 1119, 1128 Brooksby v. Watts 660 Brookshire v. Brookshire 278 Broom v. Batchelor 741 Broome v. Monk 1446 Brotherton v. Wood 684 Broughton v. Hutt 1474 v. The Manchester Water Works Co. 381 Brower v. Lewis 292, 1036 Brown v. Ackroyd 247, 248 t>. Adam's 5, 24, 760 v. Andrew 296 v. Arnott 916 v. Arrott 296 v. Austin 386 v. Babbington 1260 v. Barlow 661 v. Bateman 532 v. Bellows 518 v. Berry 1210, 1211,1213 v. Bigelow 644, 655, 657, 658 v. Brabham 1107 v. Bridges 1240, 1241 v. Brody 1010 v. Brooks 142 v. Brown 60, 103, 132, 149 v. Burtenshaw 460 v. Cannon 1083 v. Carr 780 v. Castles 1039 .. Cook 320, 321, 665 v. Crump 74, 467, 472, 797 v. Desmond 1427 v. DeTastet 326 v. De Winton 1339 v. Doyle 1352 ('. Duncan 583, 585 v. Dunham 207 v. Dysinger 462, 464, 1186, 1197 p. Eastern E. R. Co. 696, 715 v. Edgington 632 v. Elkington 655 v. Gammon 430, 1058 v. Getchell 1000 i. Gibson 1334 v. Gilmore 1192, 1194 v. Hall 746 v. Hare 528 v. Harris 921, 1080 v. Hatton 103 v. Hemphill 1265 u. Higginbotham 364 v. Hitchcock 673 v. Hodgson 611, 722, 723, 884, 886 v. Holbrook 86, 906, 917 P.Howard 1234,1235,1264 u. Jodrell 190 v. Johnson 1064 v. Jones 1366, 1435 v. Joyner 1263 v. Kewlev 1135 v. Kidger 346 xl TABLE OF CASES. rown v, Lamphear 1024 v. Langford 228 p. Leavitt 2 78 i/. Lee 786, 891, 802 v. Leeson 737 v. London, Mayor of 1076 v. McGran 280, 2sl p. M'Kinally 934 v. Macnair 2-1 v. Mahurin 94(j v. Maine Bank 1361, 1368 v. Marsh 1154 D.Maxwell 208,857 v. Minis 383 p. Morris 315 v. Muller 1330 v. Nairne 796, 803 v. Nevitt 128 v. O'Brien 76 v. Orland 103 o. Overbury 919 v. Palmer 540 v. Patton 250 v. Pierce 536 v. Price 1322 v. Purviance 282, 868 v. Quilter 470 v. Raindle 1437, 143S v. Royal Insurance Society 1062, 1074 v. Rundlett 308, 309, 386 v. Sawyer 1050 v. Sayles 632, 633 v. Shuker 1407 v. Slater 106, 111 v. Sloane 4(1 v. Stackpole 1128 v. Staples 1388, 1389, 1400 v. State Bank 1239 v. Staton 296 v. Storey 457 v. Symons 843 i>. Tapscott 340, 341 v. Tibbits 1269, 1276 u. Turner 897 o. Vinal 831 v. Wade 1123 v. Warner 444 v. Waterman 679 v. Witter 1093 v. Wright 774 Browne v. Byrne 157 v. Dawson 163 v. Lee 70 v. Savage 1367 v. Sligo 1459 Brownell v. Hawkins 670 Browning v. Headley 226 v. McGill 535 Browning v. Morris 939, 944 o, Stallard 611, 758, 1372, 1373, 1378, 1381 v. Wright. 136, 138 Brownkcr v. Scott 315 Browm-igg v. Rae 34 7 Broxam v. Wagstaffe 855 Bruce ,.. Hunter 84, 958, 959 r. Lee 994 v. Pearson 11, 14, 15 v. Kawlings 1334 p. Ruler 1043 r. United States 763 ... Westcott 1163 Bruen v. Marquand 346, 1152 Brumby v. Smith 672, 833, 1078 Brunson v. Bacon 946 Brunswick, Duke of, v. Crowl 81 1 Brunt v. Midland Rail. Co. 716 Brunton v. Neale 1436 Brush v. Keeler 736 v. Wilkins 130 Bryan v. Bradley 1 1 1 v. Buckmaster 870 v. Horsman 1245 . Rooks 224 Bryans ti. Nix 608 Bryant v. Amer. Tel. Co. 691, 725 v Beattie 1088 v. Biddeford 590, 101 S -•.Crosby 417,640,643,646, 1475 p. Flight 799 v, Goodnow 32, 88s v. Hambruck 437, 438 (i. Isburg 648,656 v. Jackson 188 v. Moore 286. 287, 290, 291. 292 v. Poughkeepsie Ins. Co. 120 p. Sheely 291 p. Wardell 680, 681 Bryce p. Brooks 804 Bryden v. Taylor 285 Brvdgcs i>. Lewis 138ii v. Walford 933 Bryfogle v. Beekley 955 Bryn.n v. Whitehead 986, 1056, 1431 Bubb p. Yelverton 1009 Buchanan v. Bordlcv 779 v. Curry " 259, 351 p. Findlay 917, 1286 c. Parnshaw 649 v. Rucker 88 Buck i, Albee 971, 972, 975, 976 v. Buck 1180 <•. Burk 1206, 1207, 1213 <;. Dowley 1450 TABLE OF CASES. xli Buck v. Fisher 9G0 v. Hurst 963 v, McCaughtry 404, 405, 1494 v. Pick-well , 4 1 5, 4 1 6, 4 1 7, 4 1 S, 545, 546 v. Spofford 516 v. Waddle 81, 921 Buckliurst's case 1400 Buckingham v. Burgess 331 Buckinghamshire, Lord, v. Drury 204 Buckland w. Adams Express Co. 690 v. Butterfield 498 v. Johnson 1173 v. Papillon 1390 Buckle v. Bewes 871 v. Knoop 158 v. Mitchell 1437, 1439, 1467 Buckler v. Buttivant 89 Buckley, ex parte 345, 1355 v. Artcher 566 v. Briggs 22, 378 p. Collier 229 v. Davison 435 v. Furniss 604, 606, 607 Buckley's App. 25 Bucklin t>. Ward 1359 Buckman v. Levi 613 Buckmaster v. Grundy 425, 439, 888, 1510 v. Harrop 413, 1446, 1451, 1457 v. Russell 1241 v. Smith 539 Bucknam v. Barnum 321 v. Goddard 626, 658 Buckner v. Johnson 1239 v. Lee 344 v. Smyth 227 Buckworth v. Simpson 450 Budd v. Fairmaner 631, 641 Budingham v. Smith 1240 Buel v. Willard 440 Buell v. Boughton 899 v. Cook 511, 516, 907 Bufe v. Turner 1048 Buffington v. Gerrish 567 v. Ulen 519 Buffum v. Buffum 1194 v. Chadwick 316 v. Deane 535 v. Green 1119 v. Merry 540, 672 Buford v. Caldwell 1044 McNeely 360 Bulger i>. Roche 133, 135, 1216, 1223 Bulfdey v. Dayton 346, 1152, 1351 v. Derby Fishing Co. 379 o. Landon 69 v. Stewart 947 Bull v. Bliss 743, 744 , 770 v. Griswold 417 c Harrcll 1107 v. Parker 617, 1197 v. Price 108 , 800 p. Robison 635 v. Sibbs 513 , 877 v. Willard 9 Bullard v. Billings 669 v. Randall 1365 v. Wait 555 c. Walker 155 Bullen )). Denming 137 v. Leake 1352, 1387, 1408 v. McGillicuddv 1122 v. Sharp 328 Buller v. Fisher 682 v. Harrison 910, 911, 913 v. Plunkett 1368 Bullion v. Campbell 1366, 1435 Bullock v. Adams 1422 v. Babcock 208 v. Dean 1260, 1261 v, Dodds 261, 262 o. Dommitt 468, 1074 v. Smith 1241 Bullpin v. Clarke 256 Bulmer v. Gilman 818 <•. Hunter 570 Bulteel v. Jarrold 783 Buncan v. Findlater 861 Bunce r. Bunce 889 v. Vandergrift 1439 Bunch v. Hurst 1050 Buncombe Turnp. Co. v. McCar- son 378 Bundy v. Hyde 838 Bunn v. Guy 6, 29, 985, 1056 v. Biker 735, 736 v. Winthrop 4 Bunnell v. Taintor 318 Bunney v. Poyntz 597 Bunson v. Kincaid 346 Buntin v. Lagow 1220 Burbank v. Crooker 538 Burbridge v. Morris 337 Burchfield v. Moore 1163 Burckle v. Eckart 321 Burden v. Halton 1144 Burdett v. Withers 468 Burdick v. Green 1135, 1261 Burdict v. Murray 802 Burdit v. Burdit 646 Burfield v. De Pienne 254 Burford v. Stuckey 1343 Burge v. Cone 555 Burgess, in re 954 Burgess u. Burgess 1043 v. Clements 676, 677 xlii TABLE OF CASES. Burgess v. Gray 863 , 864 v. Merrill 210, 1353 v. Tucker 1274 Burgh v. Legge 966 Burghart v. Angerstein 203 v. Gardner 811 v. Hall 195 Burglacy v. Ellington 159 Burgoyne v. Cottrell 1311 Burk v. Winkle 255 Burke's case 781 , 783 Burke v. Annis 1498 v. Baxter 501 r. Haley 413 v. Jones 1236, 1244 v. Norwich &c. R. R. Co. 862 Burkitt v. Blanchard 1252 Burleigh v. Coffin 224 e. Stott 1252, 1257 Burlen v. Shannon 245 Burley v. Burley 992 v. Harris 344 v. Russell 208 Burlingauie v. Burlingame 214, 422, 436,437 Burls v. Smith 612 Burmester v. Hogarth 963 .-. Norris 294 Burn t>. Boulton 1253 v. Carvalho 914, 960 ■v. Miller 831 v. Poany 779 Burnap v. Partridge 903, 1119 Burnby v. Bollett 636 Burnefl v. Brown 1059, 1493, 1495 v. Minot 342, 896 Burnet v. Biscoe 5, 11, 24 Burnett v. Bouch 803 v. Lynch 744, 878, 1399 u. Sinith 652, 653, 1094 Burney v. Poyntz 606 Burnham v. Allen 107 v. Bennett 225 v. Best 960 v. Brown 1231 v. Cornwell 790, 791 v. Spooner 948 Burns v. Hill 208 Burnside v. Dayrell 901 v. Wightman 492 Burnyeat v. Hutchinson 594 Buron v. Denman 479 Burr v. Todd 438 v. Veeder 928 v. Williams 522 Burrel v. Taintor 413 Burrell v. Jones 312, 386 v. Laconia Manuf. Co. 858 v. North 685 Burrell v. Root Burrett v. Booty v. Thorndike Burrill v. Phillips Burritt v. Bench Burrough v. Moss v. Skinner Burroughs v. Bloomer u. Clarke 411, 1427 243 1167 804 722 1270, 1280 426 1224 809 Norwich & Worcester R. R. Co. 705 v. Richmond 193 Burrowes v. Gradin 456 u. Lock 1046, 1501 Burt <;. Haslett 502 v. Horner 770 v. Palmer 1247 v. Place 945 Burtis v. Thompson 792 Burton, ex parte 263 Burton v. Anderson 960 v. Barclay 1395 v. Issitt 365 v. Pinkerton 1091 v. Revell 444 v. .Schcrmerhorn 654 v. Stewart 653, 1093, 1141 v. Young 646, 655 Burwell v. Mandeville 360 Bush v. Barnard 264 v. Canfield 622, 623 v. Cole 437 v. Steinman 861, S63 Bushell (•. Beavan 755, 1322 v. Wheeler 554, 557, 559, 561 Busk v. Davis 523 v. Walsh 736, 944 Luskin v. Wilson 1261 Lussey v. Gant 1114 Bustard v. Gates 1291 Lustin v. Rogers 590 Buswell v. Bickncll 540 c. Roby 1264 Butcher v. Andrews 876 v. London & South West- ern Rail. Co. 703 v. Stewart 37, 741, 758, 1373, 1381 Bute, Marquis of, v. Thompson 1074 Buteman v. Binder 1237 Butler r. Baling 700 i'. Breck 197 v. Haight 1134 v. Hamilton 781 v. Haskell 30 ;'. lleane 717 v. Hicks 14 25 v. Howe 1 222 *. Lee 591, 592, 1017, 1019 TABLE OF CASES. xliii Butler v. Powis 1478,1482,1487 i). Tufts 626 v. Woolcott 688 u. Wright 744, 883, 1171 Butman e. Abbot 809 Butt v. Great Western Rail. Co. 695, 720 v. Monteaux 1466 Buttemere c. Hayes 413 Butterfield v. Baker 520 v. Burroughs 644 v. Cooper 107 v. Hartshorn 75,912,1373, 1374, 1378, 1379 v. Jacobs 1241, 1242 v. Marler 841 Button v. Hampson 352 v. McCauley 790, 795 v. Thompson 848 Buttriek v. Holden 1064, 1084, 1436, 1446 Butts v. Swarm 171 Buxton v. Bedall 182, 543 v. Cornish 168, 175, 824 v. Hamblen 584 v. Lister 319, 1431, 1462, 1470, 1503 v. North Eastern Rail Co. 731 Bwlch-y-Plwm Lead Mining Co. v. Baynes 1037 Byam v. Stevens 258 Byars v. Doore 314 Byasse a. Reese 416 Byers v. Aiken 425, 427 v. McClanahan 894 Byne. v. Vivian 925 Byram v. Hunter 55 Byrd v. Boyd 840, 843, 844, 848 Bynie v. Crowninshield 133, 1217, 1225 v. Fitzhugh 1344, 1348 v. Romaine 1453, 1456 v. Schwing 294, 296 Byron v. N. Y. Telegraph Co. 858 Bywater v. Richardson 645 C. H. & D. & D. & M. R. R. Co. u. Pontius 706 Caballero v. Slater 761 Cabarga v. Seeger 107 Cabeen v. Campbell 607 Cabell v. Vaughan 1351, 1352, 1357 Cabot v. Haskins 31, 76, 77, 82, 422, 921 v. Walker 958 v. Winsor 103, 115, 144 Cabot Bank v. Morton 308, 627, 931, 1106 Cadaval, Duke de, v. Collins 933, 946, 947 Caddick v. Skidmore 412 Cadman v. Horner 1474, 1502 Cadogan v. Kennett 570 Cadwell v. Blake 139, 830, 1082 Cady v. Shepherd 352, 1237, 1248 Cage v. Acton 1401 v. Foster 892 Cagger v. Lansing 423 Cahill v. Bigelow 423, 751, 752 v. London & North West- ern Rail. Co. 698 Cailiffe v. Danvers 673 Cain v. M'Guire 416 Caine v. Coulton 1191 v. Horsefall 115,144' Caines v. Smith 792, 1073 Cairnes v. Bleecker 291 Cairns v. Robins 712 Calcraft v. Roebuck 1495 Calcutta & Burmah Steam Naviga- tion Co. v. De Mathes 519 Caldeeott v. Smithies 506 Calder v. Rutherford 1356 Caldicott v. Griffiths 324 Caldwell i'. Carrington 1436 i'. Gilles 1118 v. Harrison 296 v. Shepherd 811, 996 v. Sigourney 1248 v. Stillman 364 v. Wallace 645 v. Wentworth 1110, 1111, 1113, 1114, 1115 Caldwells v. Harlan 1119 Caledonia Railway Co. v. Magis- trates of St. Helensburg 995 Calhoun v. Vcchio 633 Caliot v. Walker 958 Calisher's case 1289 Calkins v. Lockwood 537 v. Long 243 Call v. Gray 525 r. Ward 211 Callaghan v. Callaghan 1467, 1502 v. Hallet 60, 971, 1000 Callander v. Howard 1110 Callis v. Waddy 1235 Callisher p. Bischofi'shiim 38 Callo v. Brouncker 843, 848 Calton v. Bragg 84, 952, 959 Calverley v. Williams 517,1029, 1461, 1473 Calvert v. Baker 965, 1163 v. Bradley 1341, 1347 v. Cox 835 v. Gordon 785 xliv TABLE OF CASES. Calvin v. Buckle v. Williams Calvit v. McFadden Calye's case Camac o. Warrincr 7G9 541 G'22 675, 676, C78 654 Cambrian Steam Packet Co. ex ■parte 1332 Cambridge Inst, for Savings r. Lit- tlefield 264 Cambridge, Mayor &c. of, <.. Dennis 763, 764 University of, v. Baldwin 767 Cambriso v. Maffit 583 Camden, Lord, v. Batterbury 476 Camden &c. Railroad Co. v. Bel- knap 686, 703, 72S Camden &c. Railroad Co. r. Burke 683,684, 094, 713, 714, 726, 727, 728, 730 Camden & Amboy R. R. Co. v. Bal- dauf 691, 692, 696, 697, 713, 715 Camerlin v. Palmer Company 246 Cameron u. Baker 212 v. McFarland 992 v. Smith 954, 956 i. Wells 160, 1062, 1206 Camfield v . Gilbert 439 Camidge v. AUenby 1135, 1136, 1137 Cammell v. Sewell 128,534,1177 Camoys v. Seurr 669 Camp v. Bates 957, 958 v. Gullett 1136 v. Western Union Tel. Co. 691 ; Campanari v. Woodburn 278,376, | 1412 j Campbell v. Calhoun 321, 334 k. Campbell 897 v. Cooper 85, 213, 214, 222, 797 v. Findley 92 8. Fleming 938, 939, 103 7 v. Gittings 1084 v. Hamilton 1281 v. Hillman 314 v. Hooper 401 v. Ingilby 1467 u. Jones 1082 o. Ketcham 1465 v. Lewis 1383, 1385, 1389. 1391 v. Mersey Docks 526, 527 a. Mesier 892, 953 v. Morse 684, 689 u. Phelps 89 7 v. Stakes 209 Campion v. Kille 129 Canaan v. Green Woods Turnpike 1176 Canada v. Canada 839, 851, 1043 Canal Bank v. Bank of Albany 308 Canal Bridge, Proprietors of, v. Gor- don 37K Candee v. P. R. Co. 707 Candell v. Shaw 255 Candor's Appeal 838 Cane v. Allen, Lord 402 v. Chapman 389 Canedy v. Marcy 1024 Canfie'ld «•. Hard 360 v. Monger 1366 c. Vaughan 739 Canham c. Barry 1036, 1042 v. Rust 1398, 1406 Cann v. Cann 50, 1497 Cannan v. Bryce 878,897, 1004, 1009 v. Fowler 61 s r. Hartley 46n v. Wood" 1110 Cannell v. M'Clean 437, 438, 621 Cannock v. Jones 93, 471 Cannon v. Aylsbury 790 v. Beo-cs 955 i: FoFsom 622 v. Warren 951 Canover v. Cooper 214 v. Wardwell 147.) Canterbury, Viscount, r. Atty. Gen. 86 7 Aqueduct Co. v. Ens- worth 1434 Cape Fear Bank v. Stinemetz 383 Capel v. Butler 784 Capen v. Alden 1112, 1117 r. Barrows 1341. 1343, 1344. 1345 Caperton v. Gray 756 Cappen's case 1465 Capper's case 202 Card u. Hope 991 r. Miller 572 Carden v. General Cemetery Co. 379 Cardigan v. Page 990 Earl of, r. Armitage 136, 137 Cardwell v. McClelland 639 Carew's Estate, re 408 Carey v. Adkins 914 v. Berkshire R. R. Co. 734 n. Patton 231, 238, 241, 242. 245, 25(1 Carivil v. Edwards 1146 Carle v. Bangor & Piscataquis Ca- nal & R. R. Co. 857 Carleton v. Redington 418, 419, 1363 v. Whitcher 973, 990, 1001 v. Woods 973, 1001, 1002 Carley c. Vance 1072, 1185, 1200, 1201 TABLE OF CASES. xlv Carley v. Willrins 644, 654 Carlton v. Sumner 539, 596 Carman v. Steub. & Ind. R. R. Co. 860 Carmichael v. Willson 799 Carne v. Michell 1485 Carnegie v. Morrison 76, 77, 899, 900, 915 Carnes v. Nesbitt 1321, 1322 Carolan v. Brabazon 1466, 1506 Carpenter v. American Ins. Co. 281 v. Bailey 430, 431 v. Blandford 434, 1066 v. Brown 425, 427 v. Buller 7, 8 v. Butterfield 1276 v. Dodge 60 v. Faustin 228 v. Gray 759 v. Marnell 1418 v. Mutual Safety Ins. Co. 1426, 1432 v. Thompson 462 v. Thornton 88 Carprew v. Canavan 1276 Carpue v. London and Brighton and South Coast Rail. Co. 730, 732 Carr v. Allatt 529 v. Allison 35 v. Clough 194, 200, 219, 220 v. Duval 1435 v. Edwards 952 v. Hinchcliff 306, 1283 v. Holliday 1441 v. Jackson 150, 314 v. Lancashire &c. Rail. Co. 692 v. Passaic Land Imp. & Building Co. 91 v. Read 1099, 1100 v. Roach 428, 440 Carrier v. Brannan 735 Carriger v. Whittington 278, 280 Carrington v. Brents 1427 v. Manning 1244 v. Roots 415, 418 c. Smith 537 Carrique v. Sidebottom 1363 Carriss v. Tattersall 1167 Carrol v. Blencow 253 Carruth v. Paige 1245 Carruthers v. Graham 804 u. Mardis 1258 v. Payne 530, 532 Carshore v. Huyck 1250, 1252 Carson v. Baillie 633 v. Baker 453 v. Blaney 507 v. Clark 35 v. Osborne 263 Carson v. Rambert 1009 Cartan v. Bury 1505 Carter v. Beck 9 v. Boehm 1026, 1046 v. Canterbury 946 v. Carter 8, 251, 884, 921, 926 v. Graves 723 v. Hall 387 v. Hamilton 153, 154 v. Harlan 419 v. Mills 1443 v. Palmer 402 u. Peck 307 v. Southall 359 v. Stennet 649 v. Talcott 1097 v. Taylor 286 v. Touissant 560 ... United Ins. Co. 1360 v. Walker 648 t». Warne 369, 370 v. Whalley 362, 363 v. Willard 536, 555 v. Wormald 1124 Carthrae v. Brown 1344, 1349 Cartier v. Page 135 Cartwright v. Cooke 51, 1122, 1125, 1127 v. Glover 369 v. Rowley 934, 940 Carvalho v. Burn 171 Carver v. Richards 1499 Carvick v. Vickary 331 Carvill v. Garrigues 1172 Cary v. Bancroft 1196, 1267 ;;. Dawson 1300 v. Gruman 649, 651, 657 v. Hotailing 565, 566 v. Prentice 945 Casa Major v. Strode 1494 Case v. Barber 1123, 1124 v. Boughton 6 ». Davidson 277 v. Gerrish 994, 1051 v. Greene 1210 v. James 1436 v. Riker 586 v. Wolcott 436 Casey v. Brush 343 v. Harrison 1 1 70 v. Holmes 127 Cashill v. Wright 676 Cason v. Cheely 542, 543, 823 Cass v. Boston &c. R. R. Co. 673 v. Rudele 1484 Cassady v. Clark 831 Cassiday v. M'Kenzie 278, 280, 281 Casson v. Roberts 427 xlvi TABLE OF CASES. Castelli u. Boddington Castle v. Play ford v. Sw.order v. Wilkinson Castleman v. Holmes Castling v. Aubert 1269, 1303, 1418 518, 522 557 1436, 1438 7 75 757 Castrique v. Imrie 534,1177, 1178, 1179 Castro v. Bennett 821 Caswell v. Coare 651, 658 v. Meek 157 Catlicart v. Bowman 1398 v. Robinson 30, 1028, 1050, 1425, 1470 Catlin v. Barnard 1345 u. Jackson 413 Catling v. Skoulding 1219 Caton v. Caton 423, 1451, 1454 v. Shaw 742 Catskill Bank v. Messenger 346, 1156 Catt v. Howard 170, 179 v. Tourle 987, 1384, 1470 Cattell v. Carroll 1059, 1477 Catterall v. Hindle 1098 Cattley v. Arnold 475, 1392 Catton v. Wylde 1423 Caul v. Gibson 51 Causten v. Burke 340 Cave v. Coleman 643 v. Cork 1445 Cavendish v. Mercer 213 Cavode v. M'Kelvey 47 Cazenove v. British Equitable Ass. Co. 1047 Center v. Billinghurst 6 Central Bank v. Willard 780 Central Bridge Corp. v. Abbott 86 Central Kail way Company of Ven- ezuela v. Ki=eh 1041 Chadbourne v. Duncan 90 v. Rackliff 219 Chadsey v. Greene 644 v. Harrison 340 Chadwick ,:. Clarke 166, 167 v. Knox 34, 69, 79 7 v. Maden 1444, 1447 v. Sills 164 Chaffee v. Jones 786, 891, 892 v. Thomas 69 Chalie v. York, Duke of 952, 954 Chamberlain v. Bay ley 1317 v. Chandler 729 v. Cuyler -1220 v. Lee 1480 v. Maitland 954 v. Masterton 674, 676 v. Williamson 792, 1411, 1413 Chamberlane v. Delarive 1108 Chambers v. Betty 1505, 1508 v. Chalmer 1265 v. Crawford 632 v. Donaldson 228 .D.Griffiths 406 !;. Lecompte 1458 v. Winn 1202 Chambres v. Jones 396 Champion c. Bostwick 320, 324, 327 v. Brown 1436, 1440 u. Hartshorn 849 t>. Plummer 544, 548 v. Short 617 v. Terry 63, 616 Champlin v. Butler 830 v. Laytin 283 v. Parish 411 v. Rowley 599 Champney v. Smith 535 Chancellor v. Wiggins 626 Chancy v. Overman 1076 Chandler v. Brainard 332,880 u. Broughton 865, 866 v. Chandler 340 v. Drew 1268 v. Fulton 600, 608, 610 v. Herriek 1156 v. Lopus 639 v. Parkes 210, 1353 v. Simmons 194, 215, 218, 219, 220, 222, 1093 v. Sprague 722, 724 v. Thurston 505, 506 Channel v. Fassitt 320 Channell v. Ditchburn 1257 Chanter v. Dickinson 183 v. Hopkins 635, 649, 1023 v. Leese 66, 77, 1079, 1080, 1081, 1084, 1091, 1341, 1347 Chapel o. Hicks 825 Chapin v. Lapham 32, 760 r. Merrill 760 v. Norton 1090 v. Pease 7 Chaplin v. Clarke 16, 926 v. Rogers 94, 556 Chapline v. Moore 213 Chapman v. Allen 802 v. Beckington 767 v. Beecham 1065 v. Bluck 126,440 v. Chapman 81 7 v. Dalton 136, 1077 v. De Tastet 873 c. Drunning 1291 v. Durant 1136, 1139, 1379 v. Gwyther 1004 TABLE OF CASES. xlvii Chapman v. Hicks 1185, 1200 v. Holmes 1398 v. Magrant 1261 v. March 643 v. Milvain 78 v. Morton 651 v. New Haven R. R. Co. 734 v. Phoenix 62 v. Pointon 874 v. Searle 151, 527, 540, 555, 598, 1136 v. Shaw 916 v. Speller 626, 630 v. Sutton ■ 741 v. Towner 441, 443 v. Van Toll 818 Chappel v. Brockway 984 v. Comfort 1371 v. Marvin 536, 537 v. Poles 927 Chappell v. Dunn 150 v. Gregory 1459 v. Wysham 805 Chappie v. Cooper 197 v. Durston 1290 Charingbould v. Curtis 1426 Charles v. Altin 1086 v. Scott 1161 Charles River Bridge v. Warren Bridge 136 Charleston & Columbia Steamboat . Co. v. Bason 685 Charlestown v. Groveland 246 v. Hubbard 81 Charlton v. King 1304 Charnley v. Winstanley 1059 Charters v. Bayntum 202 Chartier v. Marshall 1485 Chase v. Allians Ins. Co. 130 v. Barrett 327 U.Bradley 117 v. Brooks 782 v. Debolt 315 v. Dow 955 v. Dwinal 271, 941, 943 v. Flanders 1202 v. Garvin 340, 343 v. Lowell 96 v. Vaughan 1140 v. Westmore 802 v. Weston 1382, 1388, 1389 Chastain v. Smith 1450 Chateau v. Merry * 254 Chater v. Bi-eket 68, 94 Chatfield v. Cox 181 c. Paxton 930, 936 Chatzel v. Bolton 1171 Chauncey v. Yeaton 906, 952 Chaurand v. Angerstein 115 Chawner c. Cummings 837 Cheale v. Kenward 29, 30, 1426, 1428 Cheap v. Cramond 320, 326, 329, 334 Checchi v. Powell 225, 1404 Cheeseborough v. Hunter 951 Cheeseman v. Exall 629, 669 Cheetham v. Ward 1155, 1156, 1356 Cheever v. Mirick 1135 Cheney's case 1057 Cheney v. Archer 1261 v. Arnold 789 Chenowith v. Chamberlin 351 v. Dickinson 668 Cherry v. Heming 99, 1.02 v. Newby 1211 Cheshire v. Barrett 218 Chesley v. Frost 1167 Cheslyn v. Dalby 1240 Chesman o. Nainby 982, 985, 987, 1433 Chessman v. Whittemore 1167 Chester v. Piatt 1440 Chesterfield v. Bolton 468 Earl of, v. Janson 1323 &c. Colliery Co. v. Hawkins 7 7, 1306 Chesterman v. Lamb 658 Chestnut Hill Turnpike v. Rutter 378 Chevalier v. Strahan 682, 690 Cheveley v. Fuller 15 v. Morris 1338 Chevey v. Palmer 572 Cheyney's case 148 Chicago &c. R. R. Co. v. Swett 858 & Rock Island R. R. Co. v. Warren 708 Chichester v. Vass 224 Chick v. Trevett 29 Chickering v. Fowler 708, 709, 710 Chiddick v. Marsh 1317 Chidell v. Galsworthy 529 Chilcott v. Trimble 210 Child v. Hardyman 239, 250 v. Horden 1070 v. Morley 882, 883 Childers v. Childers 1467 v. Deane 957, 958 Childerston v. Hammond 1278 Childs v. Digby 292, 293 v. Monins 372, 375, 1411 Chiles v. Nelson 18 Chilliner v. Chilliner 1321 Chilson v. Phillips 214 Chilton v. Carrington 1311 v. Whiffin 1294 Chinnery o. Blackmail 277 v. Viall 519, 622 xlviii TABLE OF CASES. Chinnock v. Ely, Marchioness of 15, 16, 1423, 1448 v. Swainsbury 1422, 1468 Chipman v. Bates 1220 Chippendale u. Lancashire &c. Rail. Co. 693 v. Thurston 1061, 1252, 1255 Chippendall v. Tomjinson 267, 1419 Chism v. Woods 626 Chisman v. Count 966 Chitty v. Naish 1110 Choice it. Moseley 1061, 1208 Cholmeley v. Paxton 278 Chorley v. Balcott 835 Chorlton v. Cravan 1500 Chouteau v. Steamboat St. An- thony 681 Chown n. Parrott 817 Christenson v. American Express Co. 691 Christian v. Cabell 1484, 1497, 1500 Christie v. Borelly 1082 v. Fonsick 1072, 12.32 v. Griggs 683, 726, 729, 730, 732 Christopher v. Austin 465, 1082 Christ's Hospital, Governors of, v. Harrild 474 Christy v. Douglas 811 v. Flemington 1241, 1250 v. Tancred 452 Chubb p. Fuller 1505 v. Stretch 227 Chuck, ex parte 321, 329 Chudleigh's case 391 Church v. Feterow 1208, 1239 v. Hubbart 129 v. Imperial Gas Light Co. 380, 382 v. Landers 232, 246 v. Leavenworth 1176 v. Mansfield 865 v. Sparrow 347 v. Sterling 276 Chureher v. Stringer 956 Churchill v. Bertrand 925 v. Merchant's Bank 1064 v. Perkins 749, 998, 999 Churchman v. Smith 326 Churchward i\ Ford 515 Chute o. Patlce 765, 780 Cincinnati o. Ogden 888 v. Rice 1019 Cist u. Leigler 1173, 1176 Citizens Bank v. Nantucket Steam- boat Co. 681, 682, 684, 686, 700, 729 City Bank v. Bank of Albany 928 City Bank v. Cutter 1190 City Council v. Duncan 278 v. Van Roven 255 Claflin (■. Boston & Lowell R. R. Co. 524, 527 v. Carpenter 416, 418 v. Godfrey 935 . Wilson 196 Coats !>. Holbrook 258 Cobb v. Abbott 325, 700 v. Arnold 462 Cobb v. Becke 820, 899, 915 v. Carpenter 463 v. Fountaine 111 v. Hall 82, 423, 852, 928 v. McMechen 711 v. O'Neal 146 u. Page 740 v. Stokes 477 !.. West 831 Cobbold v. Caston 541 Cobden v. Hendrick 948 Cobeen v. Campbell 605 Coburn v. Odell 26, 582, 973, 1135 v. Palmer 462 u. Pickering 572 v. Ware 653 Cocheco Man. Co. v. Whittier 136, 137 Cochran v. Carrington 907 v. Perry 360 Cochrane^. Green 1107, 1282, 1373, 1377 v. Willis 1031, 1473 Cock v. Richards 988 Cockburn, ex parte 1306 v. Alexander 159, 1060 Cocke v. Evans 1447 v. Tavlor 439 Cockcll v. Taylor 1504 Cocker v. Franklin Hemp & Flax Manuf. Co. 160, 434, 1062 Cockerell u. Aucompte 612, 1060 v. Dickens 1449 v. Smith 658 Cocking v. Ward 412, 967, 968 Cockran v. Irlam 296 Cockrill v. Kirkpatrick 1185, 1197 o. Sparkes 1239, 1242, 1259 Cocks v. Izard 409 ... Masterman 932 v.Nash 1155,1356 v. Purday 130 Cocksedge v. Cocksedge 989 Cockshott v. Bennett 63, 1051 Cockson v. Cock 1390 Coddington ... Goddard 97, 281, 544, 551 v. Hunt 362 v. Paleologo 1091 Codman v. Freeman 528 v. Jenkins 511, 516, 907 w.Rogers 1219,1230,1232 Cod wise v. Hucker 292 Coe v. Clay 445 „. Duffield 761 Coffee n. Brian 342 Collin v. Cooper 1480 v. Dunham 247 v. Jenkins 324 TABLE OF CASES. Coffin v. Lunt 446, 475 t>. Walker 305 Coffman v. Hampton 532 v. Buck 453 Coggill v. Hartford & New Haven R. R. Co. 538 - Coggs v. Bernard 43, 662, 664, 665, 668, 669, 670, 671,678,679, 683,689,1075 Cohen v. Dupont 465, 1082 v. Frost 687 v. Hume 682 v. Paget 803 Coil v. Wallace 790 Coit v. Houston 1122,1127,1185 v. Tracy 1248 Colbourn v. Dawson 741 Colbourne and Mixstone's case 441 Colbron v. Travel's 473 Colburn v. Averill 1256 v. Gould 62 v. Patmore 749 v. Phillips 316 v. Rossiter 1366 Colby v. Colby 1279 v. Cressy 669 v. Gadsden 1507, 1508 v. Lamson 231, 251 Colcock v. Ferguson 206 v. Goode 626 Colcombe v. Fidler 441 Coldham v. Showier 96, 761 Coldren v. Miller 1323 Cole's case • 1383 Cole v. Blake 1195 v. Clark 111, 825 v. Cottingham 791 v. Driskell 1177 u. Goodwin 683, 684, 691, 697, 702, 713, 714, 727, 728, 730 j). Gower 998 v. Hester 1083 v. Jessup 1224, 1225 v. Kerr 614 v. McGlathry 1235 v. Robins 192 v. Ross 623 u. Sackett 1372 v. Saxby 220 v. Trecothick 30 v. Trull 951, 1117 v. White 1453, 1454 Colebrook v. Layton 1021 Coleorave v. Dias Santos 492, 498, 499, 500, 503 Coleman v. Hutchinson 1220 v. Lambert 725 v. Riches 282, 866 c. Sherwin 1346 Coleman v. Upcot v. Waller Coles v. Bristowe v. Bullman y.. Coles v. Hulme 1478 1052 746 611 346 93, 107, 118, 1027, 1032, 1073 v. Kelsey 1240 v. Pack 41 u.Sims 1320,1321,1384,1482 v. Strick 994 v. Trecothick 275, 276, 549, 550, 1501, 1502, 1503 i'. Turner 1307 v. Wright 309, 910 Colgin v. Henley 36 Collamer v. Day 735 Collard v. Groom 405, 1494 v. Sampson 1496, 1500 v. South Eastern Rail. Co. 725, 1325 Colledge v. Harty 113 ».Horn 1240,1247 Collen i'. Wright 313, 314, 315 Colles v. Evanson 368 Collet c. Woollaston 1503 Collett v. Curling 516 c. Hover 1442, 1446 v. London & North West- ern Rail. Co. 728 Colley v. Streeton 443, 470 Collier v. Baptist Society 51 v. Coates 82, 423, 852, 928 v. Jenkins 1492 v. M'Bean 1496, 1498 v. Mason 1505 Collingbourne v. Mantell 1122 Collinge v. Hey wood 1231 Collins i,-. Allen 1268 v. Banbury 103 k Barrow 471 17. Blantern 9, 160, 974, 975, 991, 1002 v. Boston & Maine R. R. 698, 728 v. Boyd 892 v. Bristol & Exeter Rail. Co. 704, 706 v. Brook 223 17. Carty 488 c. Collins 1270 v. Dennison 1044 17. Evans 748, 897, 1044 v. Godefray 61, 875 v. Griffin 820 v. Hope 117 17. Jones 1286 v. Matthew, Lord 3 v. Modisett 1177 lii TABLE OF CASES. Collins v. Price 855 v. Prosser 346, 1352, 1355, 1356 c. Stuteley 1423, 1424 v. Westbury 271 Collis v. Emmett 137, 283 Collyer v. Falcon 1364 v. Willock 1254 Colson v. Bonzey 834 v. Thompson 1456 Colt v. Com. Ins. Co. 142 v. McMechen 689 v. Partridge 1170 v. Root ' 759 Coltman v. Marsh 1241,1245 Colton v. Davis 1445 v. Evans 355 Columbine v. Chichester 1448 Columbus, Mavor of, v. Howard 679, 681 &c. R. R. Co. u. Watson 1424 Colville v. Besly 923 Colvin v. Corwin 1172 v. Newberry 682 i-. Sehell 9 Colwell v. Hamilton 1496, 1500 v. Peden 934 Colyer v. Clay 1473 Combs v. Bateman 565 v. Boswell 364 Comegys v. Vasse 1361, 1364 Comes v. Lanison 100, 842, 852, 853 Comeygs v. Booth 776, 7S2 Comfort v. Duncan 507 Commercial Bank v. Colt 1363 v. Cunningham 1112 v. French 303 v. Kortright 284, 285, 286, 378 of Lake Erie r. Norton 2S4, 29 7 of New Orleans v. Martin 669 Com. & Railroad Bank of Vicks- burg v. Lum 1165, 1166 Commings v. Heard 1180 Commissioners v. Hannion 1166 v. Perry 51,52 &c. v. McCulmash 1 J 1 of Accounts v. Rose 282 Commonwealth v. Boston & Maine R. R. 378 v. Clark 518 v. Collins 254 u. dishing 217 v. Eaton 587 v. Gamble 217 Commonwealth v. Griffith 839 v. Haley v. Hamilton 487 214 v. Harrington 980 v. Murray v. Pease 217 992 v. Pejepscut Pro- prietors 1176 v. Stone 1107 v. Thompson 808 v. Vanderslice 781 v. Wolbert 779 Comparet v. Ewing 959 Compton v. Allen 468 v. Chandless 817 v. Martin 102 Comstock v. Carr 1291 v. Farnum 1367 v. Hutchinson 651 v. Rayford 572 v. Smith. 69, 1388 Comyns v. Boger 1004 Conan r. Kemise 1397 Conant i>. Jackson 1465 v. Raymond 85 Concklin v. Pearson 1265 Concord Bank v. Gregg 282 Condon v. Walker 971 Congdon v. Perry 82, 423 Conger v. Hudson River Railroad 708 v. Weaver 436 Congham v. King 1397 Congleton, Mavor of, v. Pattison 1390 Congreve v. Everts 528, 529 v. Morgan 866 Conkling i\ King 1128 Conlin r. Charleston 859, 862 Conn v. Coburn 198, 205, 206, 207, 221, 739, 740, 1231 Connecticut v. Jackson 958, 960 Connell v. McLean 439 v. Mulligan 1191 Connelly v. Pierce 425, 427 v. Pierson 1265 Conner v. Chase 1474 v. Coffin 509 i: Henderson 517, 648, 651, 653, 656, 1093 Connersville v. Wadleigh 640 Connevat v. Goldsmith 740 Connop v. Ll^ y 1086 Conover v. Ktillwell 29 v. Walling 408 c. Wardell 1503 Conrad v. Atlantic Ins. Co. 572, 608 Conro v. Port Henry Co. 1135 Conroe v. Birdmll 208 Constable v. Colden 954 Constantia, The 602 TABLE OF CASES. liii Constantinople & Alexandria Hotels Co. in re, Reidpath's case 18 Converse v. Norwich & N. Y. Transportation Co. 706 Conway v. Bush 539 v. Cutting 1365 v. Kinsworthy 1507 Conwell v. Sandidge 319, 360 Conybeare v. New Brunswick &c. Co. 1041, 1474 Conyers v. Ennis 568, 608 v. Kenans 1235 Cooch v. Goodman 468 v. Maltby 1185 Cood v. Cood 1427 Cook v. Anderson 97 v. Boston 934 v. Bradley 5, 24, 33, 53, 56, 58 v. Castner 653 v. Catchpole 1183 v. Cox well 1163 v. Doggett 81, 82, 921 v. Erie^R. Co. 712 v. Field 46, 996 v. Gilman 653, 1090, 1093 v. Gray 1065 v. Hopewell 1103, 1322 v. Jennings 89, 1081, 1087 v. Jones 174 v. Kibbee 1265 v. Lister 1100 v. Moseley 643 v. Palmer 949 v. Parham 857 v. Stearns 418, 419 v. Totton 1291 v. Wright 29, 31, 36, 38, 40, 46, 47, 50 Cooke v. Clayworth 192, 1405 v. Cooke 1444 v. Dixon 1280 v. Husted 79 7 v. Loxley 462 v. Ludlow CI 2 v. Munstone 826 v. Oxley 14 v. Riddelieu '158, 648 c. Tombs 420, 546, 1453 v. Tonkin 338 u.Wilson .309,316 v. Wise 960 Cooke's Bank 1419 Cookendorfer v. Preston 143 Cookes v. Mascal 141 Cooley v. Betts 317, 916 v. B,ose 957, 959 Coolid^e v. Brigham 626, 640, 658, 1089, 1090, 1093, 1328 v. Ingle 1000 Coolidge v. Ruggles 1357, 1359 Cooinbe v. Green 1082, 1083 v. Woolf 777 Coombs, re 941 Coombs v. Bristol & Exeter Rail. Co. 723 v. Emery 587, 1004 v. Tarlton 436 Coon v. Greenman 830 v. Syracuse & Utica R. R. Co. 858 Coope v. Cresswell 1228 v. Eyre 326, 333, 1356 Cooper v. Adams 477 v. Barton 679, 680 v. Blandy 463 v. Chambers 756 v. Dedrick 92 v. Elston 541, 543 v. Hamilton 811 v. Hood 93, 1426, 1456 v. Jarman 1410, 1428 v. Langdon 800 v. Lloyd 248 v. Lovering 1039 v. Martin 57, 214, 215 v. Page 744 v. Parker 46, 50, 1101, 1128, 1129 v. Pena 1470 v. Phibbs 1462 v. Phillips 212, 857, 1185 v. Rankin 276 v. Robinson 1157 ,.. Smith 548, 550 v. Stower 476 (.Turner 1103 c. Twibill 635, 987 n. Willomatt 534, 680 Coopwood o. Wallace 811, 821 Coore v. Galloway 1198, 1199 Cooth v. Jackson 1458, 1468 Cope v. Albinson 14, "21 v. Cordova. 709 v. Dodd 142 v. Joseph 1271 (.-. Parry 1444 v. Rowlands 582, 586, 806, 971, 987, 1005 v. Smith 7 79 v. Thames Plaven &c. Co. 384 Copeland v. Bosquet 538 v. Mercantile Ins. Co. 292 v. Stephens 368 Copeman v. Hart 1306 Copes v. Matthews 386 Copland v. Toulmin 319 Copper v. Wells 1421 Copper Co. v. Copper Mining Co. 622 li TABLE OF CASES. Copper Miners, Governor &c. of, v. Fox 383 Coppin, in re 129, 130 Coppin a. 140'2, 1403 v. Craig 802, 12S3 i. Walker 74, 305, 317 Coppock v. Bower 179, 903 Coquet i>. Gibson 1426, 1428 Corbett v. Brown 579, 1042 v. Packington 674 v. Poelnitz 252 Corbin v. Tracy 1425, 1426 Corder v. Morgan 1442 Cordingley r. Cheeseborough 404 Cordray v. Mordecai 127 Cordwent v. Hunt 1145 Curvy P. Bishop 509 Cork y. Baker 791 Cork, re, & Youghal Rail. Co. 971, 977 Cork & Bandon Rail. Co. v. Caze- nove 202 r. Goode 1227 Corleis v. Gardner 539 Corlies v. Cumming 295, 804 Corliss v. Shepherd 263 Connaek v. Gillis 652 Cornelia v. Ellis 234 Cornelius v. Vanearsdallen 1170 Cornell i: Green 1185 u. Moulton 1064, 1229, 1260 (. Vanoutsdulen 71 Corner v. Shew 375, 1335, 1336 Cornfoot v. Fowke 281, 1036, 1044, 1045 Cornf orth v. Rivett 1272 v. Smithard 1210 Cornill v. Hudson 1223 Corning v. Southland 292 Cornish v. Abington 8 v. Rowley 433 v. Searell 171, 464 v. Stubbs 450, 4K6 Cornwall t. Gould 740, 880, 1136 v. Haight 1084 v. Hoyt 253 Corpe v. Overton 200, 204, 206, 221 Cor-i'i' v. Craig 1365 Corw.n v, Mulvany 1438, 1487 Cort t>. Ambergate &o. Rail. C^o. IOho, 1083, 1089, 1325 Coi'telyou v. Lansing 573 Cortland v. Morrison 519 Cory v. Bretton 1244 v. Cory 192 u. Eyre 1436 v. Gertchen 216 v. Thames Iron Works Co. 1325 Cory ton v. Litliebye 375, 1347, 1348 Cosine v. Graham 1447 Cosis v. Bernales 251 Coslake v. Till 1431 Cossart v. Sothon 270 Costar v. Davies 1136 Coster v. Murray 1219 v. Phoenix Ins. Co. 120 Cosligan v. Hastier 1471, 1485 v. Mohawk & Hudson R. R. Co. 840, 856 Cotes v. Harris 1220 Cothay v. Fennell 149, 300, 303, 330, 333, 596, 1278 v. Tute 613 Cothers v. Keever 651, 652, 654, 657 Cothvan v. Lee 233 Cottam v. Partridge 1219, 1220, 1255 Cotterell v. Apsey 616, 834 Cotterill v. Hobby 1 76 Cottle v. Payne 1104 u. Wilson 649 Cotton v. Godwin 1191, 1198 v. Mai>h 572 Couch v. Ingersoll 1082 v. Mills 1156,1357 v. Steel 857 Coucier v. Graham 623, 1323 Coughlin v. Knowles 82,423, 852, 928 Coulson v. Carr C8 v. Walton 1166 Counter v. Macpherson 1467, 1484, ■ 1508 Coupland v. Maynard 452 Course v. Prince 343 Coursey o. Baker 350 Courtenay v. William 1236 Courteney i>. Fisher 306 Courtis v. Dennis 743 Courtney v. Taylor 125 Courtright i». Stewart 543 Coutourier v. Hastie 275, 517, 625, 1030, 107G Covas v. Bingham 923 Covell r. Hitchcock 603, CO 7 Coventry v. Atherton 1222 B.Barton 897 v. Gladstone 604 G.vill v. Jell'cry 1102 CovingtonY Willan 716 Cowan u. Braidwood 117M v. Silliman 645 Coward r. Gregory 469, 1398 Cowell v. Edwards 71, sill, 892 v. Watts 376, 377 Cowen, ex parte 1307 v. Simpson 1 039 Cowes v. Lamson 81 Cowie v. Remfrey 551 v. Stirling 1339 Cowles u. Kidder 418, 1363 v. Painter 668 TABLE OF CASES. h Cowley v. Bussell 780 o. Dunlop 89, 1294 v. Watts 15, 1477 Cowling o. Boacliam 920 Cowper v. Andrews 618 [•• Godmond 925, 1230 v. Green 1054, 1159 v. .Smith 775 Cowsar c. Wade 1267 Cox o. Bailey 163, 164, 1248 v. Bent 452 v. Brain 1185, 1186, 1199 u. Cooper 1276 u. Delano 324, 327 v. Henry • 9, 438 v. Hickman 326, 327, 328, 344 v. Hoffman 283 v. Jackson 533 v. Leech 813 v. Middleton 1059, 1434, 1457, 1474, 1477 v. Midland Rail Co. 294 w.Mitchell 1170 v. Prentice 911 v. Sprigg 1359 v. Strode 436 v. Sullivan 816, 817 v. United States 131 Coxe v. Heisley 157 v. State Bank at Trenton 1196 Cozine v. Graham 1458 Cozzens i>. Whitaker 160, 626, 630, 649, 656 Crabtree v. Clark 1167 i\ Wales 82, 423 Craddock v. Shirley 1495 Craft v. Isham 743, 744 v. Smallwood 754 Cragg v. Holme 1465 Craig v. Blow 1044 v. Callaway County Court 1257 v. Childress 681, 682 v. Cox 1241, 1245 o. Craig 880 V, Harper 11, 15, 16 v. Smith 523 v. State of Missouri 1003 Crain v. Paine 1366 Cram v. Caldwell 346 Cramer v. Bradshaw 641 Crammond v. Crouch 835 Crampton v. Walker 1269 Crane v. Conklin 192 v. Decamp 1435 v. Dygert 949 u. Gough 1365 c. London Dock Co. 535 v. Newhall 779, 783 Crnnley v. Hillary 1051, 1057, 1058 Cranmer v. Graham 851 Cranson v. Goss 588. 589, 591, 592, 1018 Cranston v. Clarke , 473 r. Smith 1448 Crary v. Smith 425 u. Turner 285 Crauford p. Cocks 333 Craven v. Ryder 608 Crawford v. Clarke 709 v. Dean 303 v. Hamilton 360 v. Harvey . 1200 v. Millspaugh 1148 u. Monell 1003 v. Morrell 68,420,973, 1001 v. Reid 843 v. Smith 519, 520, 527 v. Stirling 1271 v. William Penn 259 v. Willing 952 v. Wilson 630 Crawshaw v. Roxbury 12 Crawshay v. Eades 603 v. Maule 359, 360 Cray v. Hart. Fire Ins. Co. 1214 o. Rook 9.S0 Craythorne v. Swinburne 891, 892 Creag v. Blood \ 191 Creech v. Crockett 477 Creed v. Fisher 1336 (Ji'ecsy v. Holly 151 Cromer v. Higginson 350, 351, 743, 767, 1110 Crepps v. Durden 1017 Cresinger v. Welch 219 Cresson v. Stout 501- Creswick v. AVoodbead 1406 Cripps o. Davies 1242, 1251 v. Hartnoll 754 v. Reade 908 Crips v. Talvande 1172 Crisdee v. Bolton 1319 Crisp v. Anderson 177 v. Bunbury 391 v. Churchill 980 v. Gamel 68 Critchley, ex parte 991 Crocker v. Franklin Hemp & Flax Manuf. Co. 1206 u. Higgins 76, 77 v. Lewis 1049 v. New Lond. Williman- tic & Palmer R. R. Co. 12 v. Whitney 45, 1359, 1360, 1361, 1362, 1367, 1377 Crockford o. Winter 937, 952 lvi TABLE OF CASES. Croft v. Alison 865, 866 , 868 v. Arthur 1235 c Lumley v. Smallwood 488 754 v. Tidbury v. Townsend 173 573 Crofton v. Poole 268, 1419 Crofts p. Beale 741 v. Harris 1180 v. Middleton 1439, 1441 v. Tritton 891 v. Waterhouse 728 Cromwell v. Lovett 86, 1106 Crook v. Stephens Crooker v. Apple ton v. Hutchinson 1096, 1154 275 816 v. Jewell 1388 Crookewit v. Fletcher 1086 Crooks v. Moore COO Crookshank v. Burrell 542, 543, 544 v. Mallory 82 7 i). Rose 594 Croome v. Lediard 1463, 1464, 1472 Crop v. Norton 1485 Cropp i'. Hambleton 1186 Cropper v. Cook 883 Crosbie v. M'Donal 64 v. Tooke 1361 Crosby v. Bennett 939 v. Fitch 83, 681, 682, 685, 690 i'. Otis 952 u. Wadsworth 415 v. Wyatt 780, 782 Cross v. Andrews 187 v. Bartlett G58 v. Cheshire 341 v. Conner 1254 u. Eglin 115, 141, 1059, lOliO o. Gardner 62s v. Haskins 285 v. Peters 566 v. Williams 1352 Crosse «. Smith 1281 Orosskey v. Mills < 918 Cio^k-y v, Dixon 626 Crossthwaite v. Gardener 377 Crotty v. Hwljri-s 1163 Crouch c. Culln-eath 655 v. Great Northern Rail. Co. 687 v. Great Western Rail. Co. 712 u. London & North West- ern Rail. Co. 683, 684, 687, 697, 699 Croudson v. Leonard 1178 Crowden v. Shelby 1350 Crowder v. Austin 406, 407, 408 V. Long 571, 933, 949 Crowdus v. Shelby 891 Crowe v. Clay 1134, 1138 v. Rogers 75 Crowell v. Gleason 270, 271 Crowfoot v. Gurney 913,1367,1380, 1381, 1419 Crowhurst v. Laverack 62 Crowley v. Vitty 452 Crowninshield v. Crowninshield 189 Crowther v. Farrer 47 v. Solomons 178 Crozer v. Pilling 1188 Crozier t\ Grayson 880 Cruger v. Hey ward 213 Cruikshanks v. Rose 1115 Crump «. Mead 1087 Cruse v. Paine 746 Cruttwell y. Lye 1431 Cud v. Rutter 1425, 1426 Cuddon v. Tite 1449 Cudworth v, Thompson 213 Cuff v. Borland 1473 v. Penn 155 Cukson v. Stones 854 Culbertson v. Ellis 833 Culbreath v. Culbreath 935, 936 Cullen v. Butler 117 v. Thompson * 572 Cullens v. Tuffnell 498 Culliford v. Lv Cardenell 1014 Cullum v. Bank 956 v. Emanuel 786 Culver v. Ashley 291, 292 n. D wight 790 Cumber v. Wane 1101, 1381 Cumberland v. Bowes 126 c. Codrington 76 Cumberland Bank v. Hall 1166 v. Hann 572 Cumberledge v. Lawson 773, 1024 Cumming v. Bedborough • 473 v. Brown 608 v. Fen-ester 1270 u. Hackley 880 v. Ince 272, 14 75 v. Roebuck 268, 551 Cummings v. Arnold 155, 156, 1148 v. Banks 117 7 • v. Cassily 291 v. Dennett 24, 543, 761, 823 v. Fullam 1361, 1368 v. (ias.sett 1242 v. Noyes 86 u. Powell 194, 205,206,221 v. Putnam 155 Cummins v. Griggs 522 Cumpston u. Haigh 137 v. Lambert 999 Cundell v. Dawson 584, 587, 1004, 1005 TABLE OF CASES. lvii Cundy v. Marriott 179, 1144 Cunliffe v. Harrison 555 Cunningham v. Ashbrook 518 v. Batchelder 1119 v. Boston 934 v. Collier 386 i>. Dwyer 24 v. Hall 632 v. Hawkins 1474 v. Irwin 250 v. Laurentz 907 v. Monroe 943 v. Reardon 250 v. Sharp 431 v. Soules 309 Curlewis v. Clark 1129 v. Mornington, Earl 1227 Curley v. Williams 992 Curling c. Chalklen 764 v. Flight 420 v. Innes 1273 v. Johnson 390 v. Mills 440 v. Sedger 810 v. Shuttleworth 427, 428 Currey v. Edensor 109, 181, 774 Currie v. Anderson 557 Currier v. Barker 483, 485 v. Boston & Maine Kail- road 821 v. Currier 1203, 1210 v. Earle 475 v. Hodgdon 1359, 1360 v. Hodgson 1359, 1377, 1380 v. Howard 1366, 1435 Curriers' Co. v. Corbett 1423 Curry >:. Syles 1120 Curson v. Belworthy 1449 Curtin v. Patton 208, 209, 215, 219 Curtis's case 843, 1465 Curtis (. Brown 743, 744, 750, 753, 756, 757, 758, 1373, 1381 v. Drinkwater 729 v. Galvin 477 v. Gibbs 1178 o. Hall 192 v. Hannay 651 v. Hubbard 782 v. Ingham 1135 v. Leavitt 585, 594, 944, 973, 974, 977, 1002 t/.'Norris 1366 v. Pugh 558, 564 o. Klekards 963 v. Piddle 503 v. Rochester & Syr. R. R. Co. 727, 729 v. Spitty 1397 v. Treat 85 Curtiss v. Grcenbanks 1201, 1210, 1211 Cusack v. Robinson 555 v. White 979, 980 Cushing v. Breed 538 v. Gore 879, 1106 v. Wyman 1090 Cushman v. Holyoke 521, 522 v. Marshall 1090 v. North Western Ins. Co. 120 Cussons v. Skinner 854 Cuthbert v. Baker 1496 v. Cumming 158 Cuthbertson v. Irving 463, 464, 1393 Cutler v. Bower 8 v. Close 825 v. Cox 1173 v. Dickinson 8 v. Hinton 750, 751 v. How 30 v. Johnson 30 v. Pope 415 ^.Reynolds 1103 v. Sothern 1070 v. Winsor 321, 324, 834 Cutter v. Copeland 571 v. Emery 894 v. Powell 89, 830, 832, 844, 846, 1080, 1082 Cutting v. Grand Trunk Railroad Co. _ 1326 Cutts, ex parte 1457 Cutts i'. Brainard 705 v. Gordon 210, 1353, 1354 u. Perkins 1359, 1362 v. Salmon 409 v. Thodey 1436, 1446 Cuxon v. Chadley 912, 1131, 1373, 1374, 1379, 1380 Cuyler v. Cuyler 1146 Czech v. General Steam Naviga- tion Co. 694 D. 686 D'Anjou v. Deagle D'Arcy v. Lyle 806 v. Tamar &c. Rail. Co. 384 D'Arnay r. Chesneau 1418 D'Aubigney v. D'uvall 802 Dabbs v. Humphreys 1240 Dacosta v. Davis " 131, 133, 134 Daggett v. Fallman 1104 Dailey v. Peck 1387 Dails v. Lloyd 883 Dakin v. Watson 181 v. Williams 1318 lviii TABLE OF CASES. Daking r. Whimper 1439, 1442, 1443, 1467 Dalby v. Hirst 157, 4 7 2. 50s v. Pullen 1479, 1492 Dale v. Birch 949 v. Hamilton 318, 413, 1450, 1451, 1453, 1455 v. Humfrey 156, 158 v. Lister 1489 r. Roosevelt 6 «. Solicit 917, 1266 Dalgloish v. Hodgson 1178 Dahymple v. Dalrvmple 130 Dalton v. Gibh 203 v. Midland Counties Rail. Co. 226, 228 v. South Eastern Rail. Co. 7.">4 v. Whittcn 495 Dalzell r. Crawford 1499 Dame v. Baldwin 535 Damon v. Bryant 570 i\ Osborn 522, 524, 525 Dana o. Coombs 218 v. Fielder 107, 159, 621, 1331 v. Hancock 155 v. Kimball 936 ». King 1083, 1084 v. Lull 35 2 v. Stearns 217 Dance <>. Girdler 768 Dancer v. Hastings 316, 464 Dandridge r. Harris 1202 Danforth v. Dewey 925 v. Sergeant 47 7 Dangerfield v. Thomas 1303, 1418 Daniel v. Adams 289, 1439, 1440, 1469, I486 v. Ballard 892, 894 v. Bowles 22, 790 v. Frazer 1434 f. Metropolitan Rail. Co. 732, 733 V.Mitchell 1043,' 1045 Daniels v. Davison 1436. 14 16 v. Hallcnbcck 1133 v. Hatch 11,27 u. Pond 50!i Dan-c\ v. Richardson 674 Danube &c. Rail. Co. v. Xmos 1067 Darbey r. Wluttaker 1423, 1426, 1431, 14.82 Darby v. Boucher 20 7 Dark' v. Johnston 418,419 Darlcy o. Singleton 30 Darling v. Boston & Worcester R. R. Corp. 703, 705, 706, 710 v. March 351, 355, 364 v. Meacham 1221 v. Stanwood 296 Darling «. Wells 1224 Darlington v. Gray 1372 v. Hamilton 1493 Darnall v. Magruder 1232 Darnell v. Pratt 755 Darnley, Earl, v. London, Chatham & Dover Railway Co. 1069 Darnton e. Pigman 907 Darrell «. Evans 550 Darst c. Brockway 626 v. Roth 352 Dart r. Dart 1388 Dartnall r. Howard 44, 666 Darvill r. Terry 575 Dater v. Karl 586 Daubigny r. Duval 297 Dauchy v. Goodrich 1158 Dauglish v. Teunant 1051 Davenant v. Salisbury 473 Davenport u. Gear 340 v. Mason 24, 953 v. Nelson 1293 u. Runlett 355 v. Rylands 1423 v. Wells 622 t>. Woodbridge 1367 Davey v. Phelps 769 v. Prendergrass 783 David v. Comtrd 951 v. Ellice 1118, 1139 c. Ransom 736 Davidson v. Bohn 90 v. Bridgeport 1135 v. Cooper 778, 1161, 1162, 1163, 1167 v. Ernest 454 v. Gardner 1439 u. Graham 713, 714 v. Little 30 c. M'Gregor 775, 1051 v. Morris 1245 v. Stanley 277, 292 r. Van Pelt 425 Davies t. Cannop 506 r. Cooper 1503 r. Davies 5437 v. Edmonds 871 ,-. Edwards 1259 v. Griffiths 869 v. Hawkins 1012 v. Humphreys 745, 7.S6, 890, 891, 892, 1231 v. Lowndes 597 c. Ponton 1315, 1319 v. Sear 1497 v. Smith 220 v. Stainbank 7 75 v. Underwood 470 Daviess v. Newton 1368 TABLE OF CASES. lix Davis v. Alden v. Ayers v. Barney v. Barring-ton v. Bomford v. Bradford v, Bradley v. Brocklebank !'. Bryan v. Carlisle ... Cary v. Clemson v. Coburn o. Davis )). Dodd c. Emerson v. Emery 1-. Garrett v. Goodnow v. Hall v. Haycock v. Headley v. Hill v. Holding v. Hopkins v. Home v. Huggins v. Hunt v. James v. Jenney v. Jones 513, 514 840 110, 117 146, 846 795 71, 80, 824 538, 724 505 924, 925 1167 1076 131 1089, 1363 1336 63, 1138 895 538 685, 721 838 1119 1427 1427 523,524, 615 994 1474 1483 779 627, 1170 723 H62, 1166 153, 490, 498, 501, 1457, 1486 v. Lane 279, 281 !>. Lewis 437 v. Marsten 925 v. Mason 985 v. Maxwell 533, 844, 846, 847 v. Minor 1224 v. Moore 94 v. Morgan 32 v. Murphy 635 v. Noaks 1129 v. Ockham 1130 v. Oliver 1165 .-. Otty 1458 v. Paine 360 v. Parker 1427, 1437, 14 73, 1487, 1489, 1502 v. Reyner 372 v. Richardson 621 v. School District 292 v. Shapley 1295 v. Shepherd 1031 u. Shields 97, 411, 545, 551, 621, G22 v. Sims 640 v. Smith 67, 1074, 1219, 1220 v. Smyth 955,1331 v. Steiner 1240 Davis v. Thompson 475 i'. Turner 572 i>. Waterman 2h'5 c. West 1261 v. Willan 715 c. Williams 174 Davison v. Farmer 359, v. Gent 460 v. Moore 1087 v. Robertson 277 v. Stanley 461 Davlin v. Hill 147 Davve v. Holdsworth 1114 Dawes v. Boylston 1359, 1367 v. Cope 536, 572, 573 v. Howard 211, 213, 214 v. Jackson 386 v. Peck 205, 612, 722 Dawson u. Brinokman 1469 v. Cbamney 676 u. Collis 649 v. Dawson 4 ii^Ellis 1437 v. Kittle 117 V. Lawes 773 v. Morgan 747, 890 v. Remnant 933, 970 v. Wood 574 v. Wrench 1070 v. Yates 1505 Dawtry r. Huggins 664, 862 Dax v. Ward 813 Day c. Elmore 92 c. Essex Bank 383 r. Everett 213, 214 i). Lamb 1261 v. Luhke 434 v. McAllister 589, 592, 1019 v. Newark Ind. Rub. Manuf. Co. 383 v. Newman 1504 v. Nix 1141 v. Padrone 1403 u. Pargrave 25 7 v. Perkins 493 v. Pictou 599 v. Ridley 714 v. Roth 1127 v. Wells 1474 v. Whitney 1364 v. Woodworth 1329 De Begnis v. Armistead 878, 897, 1003, 1004, 1088,1466 De Beil u. Thompson 95, 1454 De Benardy o. Harding 830 De Berkom v. Smith 331, 332 De Bernales v. Fuller 950, 952, 955 De Bode's, Baron, case 129 De Bode, Baron, v. Reginam 130 lx TABLE OF CASES. De Boom v. Priestly 823 De Brassac v. Martyn 1508 De Charms v. Harwood 1346 De Chaumont v. Porsythe 1388, 1400 De Cordova v. Smith 97,411,1506 De Costa «. Jones 737 D'Eyncourt v. Gregory 493 De Forrest v. Brainard 990 v. Wright 863 De Fries v. Littlewood 182 De Grave v. Monmouth, Mayor of 380 De Havilland v. Bow'erbank 950, 952 De Hoghton v. Money 1443 De Kidder v. McKnight 522 De la Rosa v. Prieto 807 De la Torre r. Barclay 1245 De la Vega t\ Vianna 128, 134 De Lazard v. Hewitt 295 De Lema v. Haldimand 388 De Mautort v. Saunders 330 De Medeiros r. Hill 620 De Medina v. Grove 3,947 v. Norman 424 v. Poison 447 De Mott v. Lavvaway 682, 702 De Nieholls o. Saunders 456 De Poystcr v. Pulver 1080 De Porquet v. Page 165, 170 De Pothonier v. De Mattos 1154, 1312 De Ridder v. Sehemerhorn 139, 1352 De Rutte v. N. Y. Albanv & Buf- falo Tel. Co. '684,685, 7 23 De Sewhanberi; v. Buchanan 1141 De Sobrey v. De Laistre 128, 129 De Sylvias. Henry 946, 126 7 De Symons v. Minehwieh 570 De Tuslett v. Crousillat 287 De Wahl v. Braiinc 253 Do Wolf v. Babbett 5,'ili v. Harris 572, 5 73 v. Lindsell 7M7 u. N. Y. Ins. Co. 722 v. Rabaud 92, 740 Deady t>. Harrison 575, 1037 Dean v. AUalley 499, 500 v. Annis 211 v. Branthivaite 680, SU5 v. Hewett 1250, 1256 v. James 1189, 1419 v. Ki'ale 080 v. M'Ghie 278 v. Mason G30, 637, 645 v. Newhall 1156, 1357 v. Richmond 252 r. Williams 957, 958, 960, 1114 Dean & Chapter of Wimlsor's case 13S7 Deane ». Rastron 1502 Dearborn v. Cross 1148 Dearborn v. Dearborn 816 , 817 v. Eastman 219 v. Parks 756, 902, 1373, * 1375, 1381 v. Turner 540 Dearie v. Barrett 1185 t>. Hall 1367, 1419 Dearman v. Radcliffe 1038 Dearth v. Williamson 431 Dease v. Jones 1222 Deason v. Boyd 218 Debow v. Titus 505 Decamp v. Stevens 844 Deck's Appeal 1428 Deckard's case 352 Decker v. Furniss 523 w. Livingston 1152, 1351 p. Shaffer 758 Decouche v. Savetier 133 Dederick v. Lehman 1101 Dedham v. Natick 214 Dedham Bank v. Chickering 764 1117 Deekes v. Strutt 37 I, 373 Deems v. Quassier 1336 Deering v. Chapman 584, 594 , 973, 1001 v. Winchelsea 71, 891 , 892 Deer Isle v. Eaton 81 Defrance v. Austin 838 Defreeze v. Trumper 630 Degg v. Midland Rail. Co. 857 Dehon v. Foster 1427 Dehuff c. Turbett ' 779 Delabere v. Norwood 1442 Delacroix c. Bulkley 1148 Delafield v. Illinois 285, 286, 292, 295, 296 Delameter i;. Miller 1066, 1209 Deland v. Amesbury W. & C. Manuf. Co. 1149 Delano v. Bartlett 26 v. Blake 218 Delany v. Fox 465 Delaware & Hudson Canal Co. v. We&lrliester Co. Bank 76, 1375 Delevan r. Duncan 1506, 1507 Delius v. Caw thorn 315 Dellf. Kino- 130 7 Demarest r. Willard 1385, 1387, 1398 v. Wynkoop 1222 Deming v. Bullett 310 v. Colt 352 c. Cumminns 946 v. Grand Trunk R. R. Co. 725, 72i;, 1326 Demmon v. Locke 140, 600 Den v. Farlec 1166 r. Mmijoy 1038 v. Moore 992 TABLE OF CASES. ki Den's Estate 957 Denby v. Moore Dench v. Walker 936 867 Dendy v. Henderson 986 v. Powell 1276 Denew v. Deverell 432, 805 , 825 Denio v. Bossier 507 Deniston v. Cook 736 Denman v. Dibden 955 Denn v. Cartwright 449 v. Diamond 518 v. Rawlings 451 , 475 v. Spurrier 450 i>.' Walker 484 Denne v. Light 1457, 1478 Dennere v. Boyer 425 Dennett v. Cutts 821 v. Dutton 713 v. Goodwin 1217 v. Short 110, 1213 Dennie v. Hart 1106 Dennis v. Clark 211, 215 , 213 v. Twitchell 1365, 1366, 1376 Dennison v. Hyde 1176 v. Lee 960 Denniston v. Imbrie 959 Denny v. Cabot 321, 327, 332 v. Hancock 1461 v. Lincoln 945, 998, 1000 a. Williams 128, 133 Dennysville v. Trescott 214 Dentw. Dunn 956, 1138 v. Prudence 396 Denton v. Great Northern Kail. % Co. • 12, 735, 1044 v. Noyes 813,817 v. Peters 146 v. Eodie 84, 357, 959 v. Stewart 1421 Denys v. Shuckburgh 1235 Deposit Life Assurance v. Ays- cough 1037 Deptford, Churchwardens of, v. Sketchley 397 Depuy v. Swart 263 Derby v. Johnson 830, 831, 855, 1092 v. Phelps 101, 791 v. Sandford 823, 1359, 1376 Derby, Earl of, v. Taylor 1394,1397 Canal Co. v. Wilmot 378 Derisley v. Custance 1394 Dermott v. Jones 67, 468 Derrickson v. Cady 1234 Derwort v. Loomer 726, 729, 730 Des Arts v. Leggett 1210, 1211 Descadillas v. Harris 1136 Desha v. Holland 329 Deshon v. Eaton 1239 Deslandes v. Gregory 310 Despard v. Walbridge 465, 1474 Despatch Line &c. v. Bellamy Manuf. Co. 291, 292, 296, 297, 382, 492, 493 Deux v. Jeffries 1146 Devar v. Cardwell 431 Devaux v. Conolly 923 v. Steinkeller 581 Deverell v. Bolton, Lord 432 Devitt v. Pacific E. R. Co. 858 Devon, Duke of, v. Elgin 1455 Devore v. Sunderland 1398 Devy v. Thornton 1499 Dew v. Parsons 869, 872, 936 Dewdney, ex parte 1216 Dewees v. Lockhart 1192 v. Morgan 630 Dewey v. Erie Borough 652 v. Humphrey 1190 Dewhirst v. Kershaw 1306 Dexter v. Hazen 35 v. Manley 625 v. Syracuse &c. R. R. Co. 698 Dey v. Dox 621, 623, 1083, 1084, 1086 De Zeny v. Bailey Dhegetoft v. London Ins. Co Dial v. Neuffer Dibworth v. Sinderling Dicas v. Hides Dick v. Cooper v. Lindsay Dickens v. Jones Dickenson v. Hatfield v. Phillips v. Teague v. Whitney Dicker v. Jackson Dickerson v. Ledge Dickey v. Linscott Dickinson v. Burr v. Gay v. Hall v. Lee v. Legare v. Lilwall v. McCarny v. Naul v. Richmond v. Shee v. Valpy v. Winchester Dicks v. Grissom Dickson v. Cass i). Cunningham v. Evans v. Jordan u. Lodge 346, 1154 1360 255 953 678 409 409 911, 928, 934 965, 1240 1365 1265 906 1082 151 849, 1074, 1078 1359 157, 158, 637 924 1039 352 279, 295 1215, 1245 305 589 1193 325, 331, 336, 337, 349 675, 679 214 1286, 1288 900 1286 633 296 lxii TABLE OF CASES. Dickson v. Zizinia 644 Dobson v. Collis 100, 842 Didicr v. Davidson 1224, 1225 Dobyns v. McGovern 890 Diemer v. Scerist 1104 Dock v. Hart 421 Dietm-liMjn i; Cabburn 1467 Dodd v. Acklom 460 Diffedorffer v. Jones 507 u. Farlow 157 Digby v. Atkinson 451, 468. v. Seymour 1456 Dio-gle v. London & Blackwall Dodds v. Wilson 186 Rail. Co. 380, 382 Dodge, ex parte 1066 Dighton v. Whiting 1130, 1182 Dodge v. Adams 53, 58 Dilk v. Kcighley 204 v. Barnes 1210 Dill v. Ware ham 921 v. Burdell 24, 740 Dillard v. Moore 631, 644 v. Essex Ins. Co 1235, 1237 v. Philson 1222 v. Favor 117, 156 Dillingham v. Runnels 422 v. Greely 1090 Dillon v. Brown 477 v. Perkins 951 952, 953, 955 r. Rimrner 1135 r. Stiles 874, 875 Dilworth r. Sinderling 951 v. Tileston 804, 805 Dimmock v. Hallett 404, 409 Dodgson v. Bell 325 Dingle c. Hare 657 Dodsley v. Yarley 561 Dingley t\ Robinson 1035 Dodson v. Harris 588, 1019 Dinsmore v. Dinsmore 1240, 1248 u. Swan 1466 Dishorn v. Denoby 1375 v. Wentworth 605 Disborough p. Ncilson 1061 Doe v. Abernathy 219 Disborune t>. Denabie 76 v. Allen 456 Di Sora o. Phillips 103,129, 130 v. Amey 452 Divine v. McC'ormirk 635 v. Andrews 1293 Divvcr v. McLaughlin 572 v. Archer 486 Ditchburn r. Goldsmith 737 v. Ashburner 440, 443 Ditton v. Randall 567 v. Baker 478 Dix i>. Cobb 1358, 1361, 1368 v. Bancks 1092 v. Otis 141 v. Barton 462, 464, 465 Dixie c. Abbott 584, 586, 594 v. Batten 488 Dixon v. Baldwin 603, 605 v. Bayley 485 v, Bcveridge 965 v. Baytup 463 v. Bloomfield 772 v. Bell • 447, 451, 4^4 v. Broomfield 98 u. Benson 484 v. Clark ll»i, 1188, 1189,1197, v ■ Biggs 484 1198, 1199 v. Boulter 450 v. Cooper 321, 334 v. Boulton 476 v. Evans 47 v. Bradbury 475 v. Fletcher 1059 v. Bragg 172 v. Hamond 918 r. Brandling 118 v. Hatfield 755 v. Breach 452 v. Holdroyd 1060 v. Brown 448, 464 v. Hurrell 245 v. Browne 474 v. Myers 524 v. Burnham 26 v. Olmstead 976, 992 n. Burt 106, 131, 149 v. Swiggett 1120 v. Butler 485 v. Yates • 518, 519, 520, 524, v. Cadwallader 457 601, 606, 608 v. Calvert 488 Doan v. Mauzey 1421 v. Cartwright 166 Doane v. Russell 803 v. Cawdor 478 v. U'illentt 8 v. Chamberlain 476 Dob v. Halscy 320, 322, 327, 331, 355, v. Chaplin 479 1342 v. Church 486 Dobbin v. Bradley 776 v. Clarke 444, 478 Dobell o. Hutchinson 96, 404, 1068 v. Cochran 453 v. .Stevens 160, 440, 1038 v. Coombs 175, 178 Dobiu v. Larkan 1066, 1190 v. Corcoran 423 TABLE OF CASES. briii Doe v. Courtney v. Cox v. Crago v. Creed v. Crick v. Culliford v. Davies v. Day v. Dobell v. Donovan v. Dunbar v. Dyeball v. Edwards v. Evans v. Fairclough v. Fidler v. Fillis v. Forwood v. Foster 397, v. Frankis v. Frowd v. Gardiner v. Geeckie v. Gelwyn v. Giles v. Gladwin v. Goldwin «. Grafton v. Green v. Groves v. Grubb v. Gully v. Guy v. Hales v. Harvey v. Hawthorn v. Hazell v. Heath v. Hiscoeks v. Hopkinson e. Howard v. Howells v. Hubbard v. Huddlestone v. Hughes y. Hulme v. Humphreys v. Inglis n. Jackson v. Jesson v. Johnson v. Johnstone v. Jones v. Kendrick v. Knight «. Laming v. Lawder v. Lea v. Lines 461 Doe v. Lombly 484 448 v. Lucas 481 452, 455 v. Mainby 449 478 v. Manning 7 481, 485 v. Martin 281, 1036 486 v. Miles 476 448. 454 v. Miller 488 173 v. Mills 463 482 v. Millward 460, 484 483 v. Moffatt 451 481 v. Morphett 486 1336 u. Morris 175,463 464, 465 n. Morse 450 477 v. Nollings 478 480 v. Olley 476 441 v. Ongley 481, 1392 478 v. Palmer 488 475 o. Parker 477 444, 478, 484. 486 v. Pasquali 477 171 v. Pedgriph 167 457, 478 v. Pierce 485 455 v. Pitcher 1002 452 v. Poole 460, 461 482 v. Porter 475 456 v. Powell 126, 440 , 443, 452 1060, 1148 v. Price 486 293,479, 486 v. Quigley 475 483 v. Baff'an 484 449, 474 v. Ramsbotham 465 443 v. Read 479 478 v. Reid 987, 1390 1019 c. Rhodes 484 373 c. Ries 126, 440. 441 , 442, 443 457 v. Roberts 201, 575, 1037 176 v. Robinson 479 1002 n. Rollings 475 482, 484 v. Rowlands 469 « 462 u. Rugeley, Churchwardens of 148 1076 146 v. Sayer 476 483 c. Scott 484, 485 9 v. Skirrow 463 122 v. Smarridge 449 , 451, 483 484 v.Smith 171, 443, 452 474, 475, 479, 480, 483 485, 774, 1389 480 v. Smythe 462 488 v. Snowden 483 488 v. Somerville 450 486 v. Spence 483 255, 1293 v. Stanion 477, 1058 456, 461, 482 v. Stapleton 482 474, 485 v. Steel 488 459,476, 1222 v. Stratton 476 452, 453 v. Street 481 4 v. Summersett 479, 480 104,674 v. Taniere 38C , 383, 455 476 v. Thomas 461 146, 485 ti. Thompson 316 482 v. Tidbury 173 lxiy TABLE OF CASES. Doe v. Timothy v. Tom v. Vince v. Warlters v. Warren v. Waterton v. Watkins v. Watson o. Watts v. Webster v. Weller v. Wells v. Westlake v. Whitroe v. Wiggins u. Wilkinson v. Williams v. Wilson v. Wood Doebler v. Fisher Doggett o. Emerson v. Jordan Dole v. Lincoln v. Stimpson u. Thurlow v. Young Dolman v. Nokes r. Orchard 486 476 484 479 958, 959 1002 481, 483 465 450, 475 149, 397 475 477 148 463 163, 462, 464 485 481 451 448, 460 902 282, 292, 1036, 1043, 1045 320 60 563 4 743, 744 1503 362 Doloret v. Rothschild 1424 Dominick v. Michael 194, 219, 222, 433 Don v. Lippmann 3, 131, 132, 133 Donald v. Suckling 671 Donaldson v. Benton 1196 v. Waters 82, 422 Donallen v. Lenox 594,973 Donath v. Broomhead 601, 603, 609 Doncaster, Mayor of, v. Day 713 Done v. Walley 893 Donelson v. Posey 319 Donnell v. Columbian Ins. Co. 136, 137 Donnellan v. Read 102 Donnelly v. Donnelly 1235 Donnington v. Mitchell 225, 227 Donohue v. Woodbury 1128, 1129 Doogood v. Rose 1070, 10K6 Doolan, in re 1432 Dooley r. Watson 1482 Doolin c. Ward 408 Doolittle r. Dwight 880 Dooly c. Gt. Northern Rail. Co. 810 Doorman v. Jenkins 664, 665, 676 Dorchester v. Webb 1156 & Milton Bank v. New England Bank 297 Doremus if. McCormick 348, 351 Dorman v. Bigclow 92 Dormer, Lord, v. Knight 114, 117 Dorr v. Fenno 1338 Dorr v. Fisher 626, 648, 652, 1093, 1094 v. Munsell 192 v. New Jersey Steam Nav. Co. 689, 691, 713 v. Swartwout 1224, 1225 Dorrance v. Hutchinson 816 Dorrell v. Johnson 477 Dorsey v. Goodenow 247 v. Wagman 1113 v. Watson 55 Doty v. Bates 349 v. Brown 1171 v. Gorham 500 v. Smith 1355 v. Wilder 411, 413 v. Wilson 71, 749, 1359, 1360 Doubleday v. Muskett 336, 337 Dougal o. Cowles 346, 1372 Dougherty v. Snyder 1230 v. Van Nostrand 359 Doughty v. Bowman 1387 Douglas v. Forrest 87, 88, 1225 i>. Holme 879 v. Howland 92 v. Patrick 1188, 1189, 1192 Douglass v. Howland 743, 744, 761 v. McAllister 621 v. Moody 880 v. Reynolds 743 o. Spears 6, 97, 411, 548 v. Stephens 866 v. Toucey 1336 v. White H28 Douglass Axe Manuf. Co. v. Gard- ner 649, 650 Dow v. Adam 960 v. Clark 75, 76, 77 v. Drew 957 v. Lippmann 88 v. Sanborn 566 v. Sayward 358 v. Sudbury 942 v. Tuttle 1147 Dowell v. Dew 1361, 1438, 1440, 1452, 1478 Dowgall v. Bowman 1199 Dowfing v. Ford 1257 v. Maguire 1441, 1442, 1466 Down v. Hatcher 1101 v. Pinto 841 Downer v. Frizzle 1210 i. Morrison 290 v. Rowell 672 )>. Shaw 1237 v. Thompson 524 Downes v. Thompson 522 Downing v. Freeman 570 v. Funk 40 TABLE OF CASES. lxv Downing v. Ringer 582 Downman v. Williams 313 Downs v. Collins 1431, 1467 v. Cooper 465 v. Donnelly 934 v. Fuller 3 v. Ross 542, 543 Dows v. Cobb 702 n. Greene 284, 567 v. Morwood 524, 1114, 1116 Dowsland v. Thomson 1274 Dowson v. Soloman 1485 Dowthwaite v. Tibbut 1103 Dox v. Dey 953, 1082, 1330 v. Postmaster-general 779 Doyle v. Dixon 101 v. Kizer 697, 699 o. White 750, 751 Drage v. Ibberson 991 Drain o. Harvey 1034, 1311 Drake v. Baker 436, 437 v. Barker 436 v. Beckham 266, 268, 305, 330, 1415 v. Elwyn 320 v. Mitchell 9,1122, 1160, 1175 v. Ramsay 194, 219 v. Rogers 352 v. Wales 418 v. Wells 416 Drakeley v. Deforest 756 Drant v. Brown 166 Draper v. Crofts 452 v. Glassop 1265 v. Jackson 229, 251 v. Jones 539, 596 v. Paltina 91 v. Pierce 1199 v. Randolph 828 v. Thompson 108 Draughan v. Bunting 76, 915, 1373 Drax u. Scroope 810 Drayton v. Dale 223, 267, 1419 Drennere ti. Boyer 427 Dresel o. Jordan 20, 23, 97, 411, 432, 1069, 1439, 1479, 1480 Dresser v. Ainsworth 626 v. Dresser 101 w. Norwood 1283 Dresser Manuf. Co. v. Waterston 285, 539, 596 Drew v. Kimball 8 v. Martin 1466 v. Towle 103, 654 Drew's Estate, in re 1383 Drewe v. Corp 1491 v. Hanson 1493. 1494, 1495 437 Drinkwater v. Goodwin 305, 307, 317, 1096, 1283 Driver v. Burton 881 Drown v. Smith 623 Drue v. Thorne * 966 Drummond v. Burrill 101, 842 v. Churchill 428 v. Day 939 v. Hopper 193 v. Humphreys 281, 897 Drury v. Defontaine 590, 1005 v. Drury 204 v. Tremont Imp. Co. 8 v. Vannevar 1217 v. Williams 522 Drusan v. Murgatory 689 Dry v. Boswell 335 v. Davy 767 Dryburg v. N. Y. & Wash. Tel. Co. 691 Dryden v. Frost 283 Drysdale v. Mace 1477 Du Belloix v. Waterpark, Lord 956 Dublin &c. Rail. Co. v. Black 202 Du Bois t - . Baum 1507 Dubois ii. Del. & Hud. Canal Co. 823, 824, 830, 831, 1090, 1091 u. Kelly 416 Dubose v. Wheddon 1 98 Duckham v. Smith 1209 Duckworth v. Alison 1274 v. Johnson 734 Dudley v. Baclielder 1448 i'. Little 409 ' v. Smith 731 v. Ward 500 Duffu. Budd 663,707,711,712,723 v. Ivy 645 Duffee i'. Mason 643 Duffield v. Creed 1103 v. Scott 786 Duffy v. Orr 775 Dugan v. Gittings 1222 Duggins v. Watson 866 Duhatnmel v. Pickering 57 Duke v. Andrews 16 v. Asbee 990 v. Barnett 432, 1058 Dula v. Cowles 617,1209 Dumars r. Miller 436 Dumergue v. Rumsey 502 Dumpor's case 1389 Dunbar v. Brown 743 v. Williams 857 Duncan v. Baird 82, 422 v. Beard 852 v. Benson 745 v. Blair 421,440 v. Blundell 808, 80J. lxvi TABLE OF CASES. Duncan v. Cafe 426, 920 v. Cannan 131 v. Charles 127 v. Clarke 355 v. Kirkpatriek v. Lowndes 947 350, 358 v. McCullough 192, 1035 v. .Railroad Co. 681, 727 v. Skipwith i>. Tanner 917 439 v. Tindall 1467 o. Topham 18, 114, 1063 v. Ware 947 Duncannon v. McClure 971 Duncklee v. Greenfield Steam Mill Co. 1368 Duncombe v. Tickbridge 199, 759 Duneuf't v. Albrccht 420, 541, 1426 Dundas v. Sterling 782 Dundass v. Gallaghee 361 Dunham v. Dodge 1256 v. (iillis 1345 v. Jackson 1193 Dunk v. Hunter 444, 453 Dunklee v. Locke 821 Dunklin v. Wilkins 1365 Dunlap v. International Steamboat Co. 698 Dunlop p. Higgins 18, 622, 1331 c. Lambert 723 ... Waugh 640 Dunmore v. Alexander 18 r. Taylor 1272 Dunn v. Crump 1338 v. Hill 1303 v. Marston 1201, 1202, 1205, 1206, 1207 v. Murray 1181 v. St. Andrews Church 378 v. Sayles 839 v. Slee 893 v. Snell 1361, 1365, 1366 Dunne v. Ferguson 415, 417 Dunnell v. Mason 275 Dunnica v. Sharp 436 Dunning <>. Chamberlain 1104, 1223 Dunpeth v. Wade 682, 714 Dunshee v. Grundy 463 Dunson v. New York Central R. R. Co. 689 Dunston v. Imperial Gas Light Co. 378, 379, 799 Dupen v. Keeling 938, 948 Dupent i.: Johnson 213 Dupuy v. Johnson 897 Durant v. Bacot 1024 c. Titley 989 Durell v. Pritchard 1423 v. Wendell 1156 Durgin v. Baker 851, 854 Durham v. Manrow 1379 w. Wadlington 47 Durham, Earl of, v. Legard 1031 Durkee v. Vermont Central Rail- road 18 Durnford ii. Patterson 666 Durrell v. Evans 98 Dusenbury v. Ellis 313, 314 Dustin u. Newcomer 437 Dutch v. Warren 921, 1213 Dutton v. Gerrish 470, 514, 633 v. Poole 76 v. Solomonson 612, 615, 722 Duval w. Craig 1341 Duvall «». Farmers' Bank of Mary- land 142 v. Myers 23, 1478, 1480 v. Wilson 59 Duvergier v. Fellowes 987, 1012 Dwight v. Brewster 681, 683, 697 v. Clark 1219, 1223 v. Cutler 454 B , Whitney 295 Dwinel v. Stone 327 Dwinell u. Howard 1090, 1091 Dwinelle v. Henriquez 386 Dwyer v. Gurry 1333 Dy;is v. Cruise 1489 Dyer v. Clark 360 v. Dorscy 439 v. Hargrave 1476, 1495 v. Ilonier 7, 1038, 1367 v. Hunt 128 v. Pearson 277, 534 r. Sandford 419 v. Smith 129 Dyett v. Pendleton 980, 1081, 1082 Dykevs v. Townsend 306 Dykes v. Blake 404, 406, 1059 Dynen v. Leach 858 Dyster, ex parte 1005 v. Battye 1265 E. Eaden v. Titchmarsh 1353 Eads v. Williams 1505, 1507 Eagle v. White 689, 702, 708, 709, 710 Eagle Bank ». Smith 284, 900, 929 Eagle Bank at Newhaven v. Cha- pin 383 Eagle Fire Co. v. Lent 219 Eakin !\ Harrison 848 Eames v. Savage 81, 428, 921, 1071 v. Sweetser 234, 235, 245 Earl v. Dickson 1221 TABLE OF CASES. lxvii Earl v. Page Earle p. Earle v. Hall v. Hopwood 924 1200 859, 861, 863 996 v. Oliver 263, 264, 1263, 1297 v. Peale 198, 240 v. Reed 198, 199, 206 v. Thomas 572 Early v. Garrett 627, 1044, 1045 v. Malion 55 East Anglian Railway Co. v. East- ern Counties Rail. Co. 385 East Anglian Railway Co. v. Lith- goe 1275 Easterbrook v. Barker 313 Easterby v. Sampson 1387 Easterly v. Pullen 1251 Eastern Counties Railway Co. v. Hawkes 995 Eastern Railroad v. Benedict 149, 306 Eastern Union Rail. Co. v. .Coch- rane 768 East India Co. v. Hensley 287 v. Pullen 687 v. Tritton 934 Eastland v. Longshorne 1194 East London Waterworks Co. v. Bailey 22, 379, 381 Eastman v. Cooper 355 K.Coos Bank 813 v. Plumer 30, 1434, 1461, 1470, 1480, 1502, 1506 u.Wright 344,346,1153, 1154, 1358, 1359 Eastmure v. Lawes 1173, 1176 Eastwood v. Brown 574 v. Kenyon 53, 54, 55, 56, 58, 69, 70, 71, 759 v. Lever 1384 v. Saville 1256 Easum v. Cato 1287 Eaton v. Bell 84, 388, 957, 958, 959 v. Benton 798 v. Hill 208, 209 v. Jaques 1394 v. Lincoln 1101, 1124, 1128 t>. Melius 625, 627 v. Smith 103, 114, 116, 142 v. Tiffany 743 v. Welton 317 v. Whitaker 422, 1451, 1453 Eaves v. Dixon 654 Ebenman v. Reitzel 582 Ecclesiastical Commissioners v. Merrall 380, 455 Eccleston v. Clipsham 1340, 1341, 1343, 1344, 1345, 1352 Echliff v. Baldwin 1446 Eckert v. Wilson 953 Eckstein v. Reynolds Edan v. Dudfield Eddy v. Herrin v. Roberts v. Smith v. Stafford Edelen v. Gough Edelsten v. Edelsten Eden's case 1196 557 270 750 898 615 92 1043 199 Eden v. Blake 92, 153, 154, 1066 v. Parkinson 646 v. Titchmarsh 395 Edgar v. Blick 167,1056 v. Boies 623 Edge v. Frost 755 v, Strafford 446, 447, 448, 515 Edgecombe v. Rodd 991, 1133 Edger v. Knapp 342, 892, 895 Edgerly v. Emerson 141 v. Shaw 216, 220 a. Whalan 251 Edick v. Crim 626 Edie v. East India Co. 1369 Edis v. Bury 137 Edmeads v. Newman 85 Edmond v. Caldwell 278, 303 v. Campbell 303 Edmonds t>. Downes 1247 v. Goater 1240 [•. Pearson 874 Edmonson ti. Drake 743 Edmund's Appeal 1459 Edson r. Fuller 1360 v. Weston 662 Edwards r. Bates 905 v. Baugh 39, 4 6, 50 v. Brewer 607, 609 v. Brown 1035 v. Burt 1503 v. Chapman 1122 v. Cooper 814 v. Davies 254 v. Davis 53 ■;. Etherington 471 v. Golding 305 v. Goldsmith 103 v. Grace 376 u. Grand Junction Rail. Co. 995, 1472 v. Grand Trunk R. R. 416 v. Great Western Rail. Co. 687, 961 v. Harben 572, 574 r. Hodding 911, 912 v. Jevons 741 B.Jones 1360 v. Kelly 750, 757 v. Lowndes 905 v. M'Connell 1176 lxviii TABLE OF CASES. Edwards v. Martin 1419 Ellicott v. Peterson 101 v. Martyn 1401 Elliott 's case 107 v. Rees 122 Elliott v. Callan 1369 v. Richards 141 v. Clayton 269, 1419 v. Ronald 1301 «. Davis 1354 v. Scott 1367, 1419 v. Giese 62, 92, 740 v. Temple 1276 v. Heath 846 v. Towles 242 t>. Heginbotham 615 v. Vere 954 v. Hughes 622 v. Weeks 1147 v. Ince 401, 402, 1441 v. Yeates 1199 v. Jackson 906 Edwards-Wood v. Marjoribanks 1491, v. Pybus 532 1493 t>. Richardson 993 Egan v. Kensington Union Guar- v. Royal Exchange Insur- dians of 835 Egbert v. Woods 352 Ege v. Koontz 934 Egerton v. Furzman 737 r.Matthews 2,5,545,548 Egg v. Barnett 1105 Eggleston v. New York & Harlem R. R. 419 Egre ik Archer 1307 Egremont, Earl of, v. Keene 1392 Ehle v. Judson 53, 56, 798 Ehrensperger r. Anderson 903, 917 Eichelberger v. Einley 1106 v. McCauley 542, 543 Eichholz v. Bannister 629 Eicke r. Meyer 803 v. Noakes 963, 1241 Ekins v. Tresham 580 Ela v. Pennock 419 Eland v. Karr 1271, 1276 Elbourn ». Upjohn 903 Elder c. Beaumont 1298 h, Warfield 750 Elderton v. Emmons 118 Eldrid»e v. Long Island R R. Co. 732 u, Rowe 844, 846 r. Wadleigh 626, 668 Elfe v. Gadsden 545 Elgie v. Webster 341 Eliason v. Henshaw 12, 15 Elicott v. Peterson 53 Elkin t . Moore 960 Elkinton v. Holland 818 Elkins o. Boston & Maine R. R. 681, 684, 726 v. Parkhurst 584 1208, 1209, 1213 Ellard v. Llandaff, Lord 1435, 1483, 1487 Ellen v. Topp 21, 10S7 Ellershaw n. Magniac 528 Ellery c. Cunningham f. New Eng. Ins. Co. Ellicott v. Nichols 364, 1245, 953 117 1248, 1256 ance Co. 1184 c-. Russell 681 V. Sleeper 1135 i'. Stone 477 v. Swartwout 271, 910, 911, 934, 943 v. Thomas 563 Ellis i>. American Tel. Co. 684, 692, 723 ti. Bibb 781 v. Bitzer 1122 v. Burden 1483 v. Chin nock 658 v. Deadman 96, 545, 546 v. Ellis 198 v. Grooms 627 v. Guggenheim 791 v. Hamlyn 826 v. Higgins 1475 v. Hunt 602, 603, 605, 610 v. Levy 761 v. McHenry 1301 i. Mortimer 20, 540 u.Paige 446,475,47 7,505 v. Schmoeck 336 v. Sheffield Gas Consumers' Co. 861 v. Thompson 152, 1062 wWillard 151 Ellison v. Bignold 94 ti. Brigham 416 v. Chapman 340 v. Ehvin 1404 r. Turner 868 Ellmaker v. Ellmaker 114 Ellsworth v. Mitchell 584 Elhvood c. Monk 76, 1373, 1375 Elmes, ex parte 1299 Elmos v. Wills 963 Elmore v. Kingscote 545 v. Naugatuck Railroad Co. 705, 706 v. Stone 560, 599 Else r. Else 1497 Elsee v. Gatward 44, 665, 666, 678, 797 TABLE OF CASES. lxix Eltham v. Kingsman 919 Elting v. Vanderlyn 36 Elton v. Brogden 654 v. Jordan 654 v. Larkings 1048 Elves v. Croft* 984 Elwell v. Chamberlain 282, 1036 «. Martin 207 v. Shaw 310 Elwes v. Maw 489, 490, 491, 497. 498, 499,500 Elwood v. Deifendorf 1135 Elworthy v. Bird 993 Ely v. Ormsby 560 Elysville Manuf. Co. v. Okisco Co. 141, 378, 379, 1026 Emanuel v. Dane 656 Embree v. Hanna 1171 Emerick v. Sanders 756 Emerson v. Badger 1043 v. Baylies 879, 902, 903, 1278 v. Brigham 626, 635, 636, 654 v. Fisk 1363 v. Graff 742 v. Heelis 406, 413, 415, 532, 543, 553 v. Knower 346,1152,1153 v. Lashley 88 v. Providence Hat Manuf. Co. 294, 297 v. Thompson 511, 1258, 1264 Emery v. Chase 25, 1120 v. Day 1231, 1237 v. Emery 245, 246 v. Estes 26 v. Hersey 681, 834 v. Kempton 214 v. Lawrence 529, 1362 v. Mucklow 1216 v. Richards 919 j;. Smith 100, 101 v. Tichout 1111 v. Wase 1439, 1485, 1486, 1504, 1505 Ernes v. Widowson 780, 878, 1126, 1161 Emly v. Lye 356 Emmens v. Elderton 118,855,856, 1067 Emmerson's case 1031 Emmerton v. Mathews 635 Emmet v. Dewhurst 155, 1148 v. Kearns 761 Emmett v. Norton 232, 237, 242 Emmott v. Riddel 15 Empson v. Knowles 38 v. Soden 497, 498, 501 Ender v. Scott 640 Engell v. Fitch 436, 437 England v. Curling 1431 v. Davidson 12, 800 v. Marsden 886 v. Slade 465 English v. Blundell 922, 1344, 1351 Engs v. Donnithorne 1352 Ennis v. O'Conner 1087 v. Smith 129, 130 Eno v. Eno 1497 Ensign v. Kellogg 1360, 1361 v. Ward 358 Ensminger v. Marvin 349 Enthoven v. Hammond 1380 v. Hoyle 179 Entz v. Mills 297, 413 Enys v. Dennithorne 1355, 1356 Ephraims v. Murdock 77 Episcopal Charitable Society v. Episcopal Church in Dedham 382 Eppes v. Cole 511 Epps i'. Hinds 676, 677 Erie Bank v. Gibson 779 Erie Co. Savings Bank v. Roop 8 Ernest v. Nichols 381,385 Errington v. Annesley 1424, 1425 Erskine v. Erskine 1065 v. Plummer 416 v. Thames 702, 708 Erwin v. Blake 1097 v. Cook 1210 v. Maxwell 640 v. Parham 30 v. Saunders 58, 141, 263 Esdaile v. Stephenson 1496 Eshback v. Eshback 242 Eskridge v. Glover 17 Esposito v. Bowden . 259, 1000, 1077 Essell v. Hay ward 360 Esterly v. Cole 951 Estes v. Blake 1252 v. Hariston 1089 Estill u.Taul 1176 Estis v. Rawlins 1223 Estwick v. Caillaud 576 Esty v. Aldrich 101 Etheridge v. Binney 329, 330, 344, 346, 349, 955 v. Thompson 29 Etherington v. Parrot 231, 234, 238 Eubanks v. Peak 218 European &c. Mail Co. v. Royal Mail Steam Packet Co. 1088, 1467 Evans v. Ashley 413 v. Bicknell 581 u. Birch 1104 v. Bremridge 773, 1313 v. Carrington 989 v. Collins 1044, 1045 lxx TABLE OF CASES. Evans v. Davies 1254 Ewing v. Gordon 423 , 433, 1458, v. Drummond 329, 1379 1478 1482, 1483 t>. Edmonds 989 , 1042, 1044, v. Medlock 303 1045 v. Osbaldiston 1466 v. Elliot 456 v. Tees 275 v. Evans 317, 512 v. Thompson " 436 v. Fisher 246 Ewins v. Gordon 20 v. Forster 315 Exall v. Partridge 70,' 884 v. Gale 653, 1090 Exeter Bank v. Gordon 669 o. Jackson 1443 v. Rogers 763 v. Jones 73 7, 738 v. Sullivan 1237, 1238, v. Judkins . 1194 1248, 1252, 1254, 1257 v. Kingsbury 406 Exton v. Lyon 104 v. Llewellyn 1473 Eyles i'. Ellis 1108 v. Marlett 724 Eyre v. Everett 779 v. Myers 114 o. Potter 30 v. Powis 1123, 1124 u. Shelley 812, 1006 v. Pratt 1010 Eyston v. Symonds 1480, 1481 v. Prosser 1273, 1276 Eyton v. Littledale 1277, 1290 v. Protheroe 1121 Ezell v. Franklin 283, 287 v. Roberts 415 v. Sanders 111, 136, 1343 u. Simon 1241 F. v. Smalleombe 385 ». Soule 717 Fabens v. Mercantile Bank 280, 297, v. Trueman 299 669 v. Tweedy 1244 Fabian v. Plant 39 v. Verity 965 u. Winston 1198 v. Watrous 817 Fagan v. Davison 431, 439 v. Wells 310 Fagg v. Dobie 1398 v. Whyle 137, 777 Fahy v. North 849 v. Wright 943 Faikney v. Reynous 896 Evansville &c. R. R. Co. v. Dun- Fain v. Brown 1470, 1483 can 733 Fair v. MTver 1272, 1281, 1286 Evarts v. Nason 952 Fairbanks v. Blackington 902 Eve v. Mosely 1101, 1127 v. Dow 427, 1086 Eveleigh v. Purssord 574, 575 v. Phelps 538 Eveleth v. Crouch 1389 v. Williamson 1388 Evelyn v. Chichester 201, 217 Fairbrother v. Shaw 1453 Everett v. Backhouse 267 Fairchild v. Bell 52 v. Chapman 520, 321, 327 v. Holly 111], 1115, 1116, v. Coe 320 1117 v. Collins 1108 Fairfield v. Adams 304 v. Desborough 1036, 1048 Fairfield Bridge Co. v. Nye 557 v. Robertson 1241 Fairholm v. Majoribanks 326 v. United States 379 Fairlie v. Christie 1163 v. Vendryes 131 v. Denton 912, 913, 914 Everitt v. Watts 230 v. Fenton 316 Everson v. Carpenter 220 Fairman v. Oakford 841 Everts v. Agnes 1453 Faith v. Richmond 345 Evertson v. Sawyer 451 Faithorne v. Blaquiere 252 Ewart v . Nagel 255 Fake v. Eddy 959 v. Stark 679 Falcke v. Gray 624, 1425, 1426, 1502 v. Street 689 Falconer v. Clark 440 v. Sweet 711 v. Griffiths 440 Ewer v. Myrick 126 Falk v. Fletcher 528 Ewers v. Hutton 243, 245 Falkner v. Perkins 572 Ewing v. Bailey 1064 Fallick v. Barber 12, 800 v. French 672 Fallon v. R. R. Co. 1467 TABLE OK CASES. lxxi Fallowes v. Taylor 6, 993 Fall River National Bank v. Buf- fington * 8 Fall River Whaling Co. v. Borden 318, 413 Falls v. Gaither 12, 16, 18, 294 Falmouth v. Roberts 1168 Falmouth, Earl of, v. George 34 !). Thomas 68, 413, 420, 472, 564, 968 Faneourt v. Thorn 172 Fanning v. Anderson 1225 v. Chad wick 342 v. Consequa 131, 960 Fanshot v. Stout 1000 Farebrother v. Ansley 749, 897 v. Gibson 1495 v. Simmons 98, 553 Farina v. Home 555 v. Silverlock 1043 Farish v. Reigle 726, 729, 732 Farley u. Cleveland 76, 756, 757, 1373 v. Palmer 1439 v. Thompson 1 1 48 Farlow v. Ellis 539 Farmer v. Arundel 933 v. Francis 827 v. Russell 918 v. Stewart 32 Farmers' Bank a. Clark 1236, 1242 v. Vanmeter 772 Farmers & Mechanics' Bank v. Champlain Transportation Co. 681, 683, 691, 695, 705, 709, 713, 714 Farmers & Mechanics' Bank v. Cooley 781 Farmers & Mechanics' Bank v. Kercheval 744 Farmers & Mechanics' Bank r. Wilson 1250 Farmington Academy v. Allen 32, 796, 888 Farmington, Inhabitants of, v. Stanley 773 Farnam v. Brooks 186, 1050, 1235 Farnham v. Atkins 222 o. Camden &c. R. R. Co. ' 690 v. Clements 1448 v. Ingham 145 v. O'Brien 53, 58 Farnsworth o. Garrard 825 v. Garrow 1272 v. Hemmer 550 v. Jackson 1362 v. Shepard 572 Farnum v. Perry 519,520,521,522 Farn worth v. Pack wood 677 Farquhar v. Morris 957 Fan- v. Northey 760 v. Sumner 219 v. Ward 514, 955, 1331 Farrall o. Hilditch 125 Farrant v. Barnes 699 v. Olmius 1319, 1320 v. Thompson 504 Farrar v. Adams 711 v. Alston 1040 v. Burton 975 «. Cooper 8 ». Deflinne 361, 362, 363 v. Grannard 254 v. Hutchinson 8, 1096, 1118 v. Stackpole 492 v. United States 763 Farrington v. Barr 9 v. Brown 55 v. Lee 1217 v. Payne 1172, 1173 Farris v. Walker 491, 497 v. Ware 1043, 1089 Farron v. Turner 77 Farrow v. Respess 744 v. Wilson 842, Farwell v. Boston & Worcester R. R. Corp. 726, 729, 857 v. Mather 93, 1457 e. Rogers 1064 v. Stnrdivant 958 Fashott v. Reed 953 Faulder v. Silk 188 Faulkner v. Hcberd 16 v. Llewellyn 1433 v. Lowe 1073, 1340 v. Wright 682 Favenc v. Bennett 1096 Faviell r. Gaskoin 510 Favor v. Philbrick 585 , 702, 974, 975 Fawct- tt v. Cash 839 Fawkes v. Lamb 316 Faxon v. Mansfield 827, 831 Fay v. Bradley 957, 960 v. Hall 743 v. Oliver 1093 Fazakerly v. M'Knight 1150 Fearn v. Lewis 1243 Feather v. Strahoecker 462 Featherstone v. Hutchinson 973, 999, 1001 Featherstonhaugh v. Bradshaw 511, 515 v. Fenwick 359 Feay v. De Camp 925 Feemster v. May 430 Feeter v. Heath 313, 314, 953 Feigley ». Sponeberger Feilden v. Slater 358 1384 lxxii TABLE OF CASES. Feize v. Wray 608 Felch v. Allen 858, 859 v. Taylor 373 Felichy v. Hamilton 321 Felker v. Emerson 232 Fell v. Brown 835 v. Goslin 768 v. Knight 678 v. Wilson 660, 661 Fellmongers' Company v. Davies 76 Fellowes v. Gordon 666 v. Gwydyr, Lord 1481 Fellows v. Guimarin 1249 v. School District in Fa- yette 934, 936, 942 v. Stevens 1122, 1127 Fells v. Read 1425 Feltham v. Cartwright 163 v. England 858 Felton v. Dickinson 76, 303, 1375 v. Fuller 519 Fenly v. Stewart 97 Fenn v. Bittleston 680, 681 v. Griffiths 1 75 r. Harrison 285, 287, 293 Fennell v. Ridler 590 Fennclly t>. Anderson 1479 Fenner v. Duplock 463, 465, 466 v. Hepburn 442, 1434 v. Mears 1281, 1359 v. Tucker 409 Fennings v. Humphrey 1434 Fenton v. Clark 846, 849, 850 v. Emblers 102, 1230 v. Holloway 192 Fentum v. Pocock 783 Fenwiek v. Bulman 1443, 1447 Feret o. Hill 972 Ferguson j>. 466 v. Alcorn 320 a. Cappeau 723 v. Clavworth 1402 v. Clifford 128, 129, 133,136 b. Harwood 107 v. Porter 42, 665 v. Spencer 1303 v. Wilson 1423 Fergusson v. Carrington 89, 566, 567, 570, 616 v. Fyffe 128, 131, 132, 133, 957, 958 v. Mahon 1 1 78 v. Norman 671, 1004, 1006 Fermor's case 3, 1035 Fernley v. Branson 941 Ferraby v. Hobson 1449 Ferrers v. Arden 1175 Ferrin v. Kenney 477 Ferrior u. Peacock 404 Ferris v. Barlow v. Comstock v. Henderson v. Walsh Ferry v. Ferry Ferson o. Monroe v. Sanger Fesenmayer v. Adcock Fcssard v. Mugnier Fessenden *;. Mussey Fetter v. Field Fettyplace v. Dutch Fewings o. Tisdal Fewster v. Turner Fible v. Caplinger Field v. Carr v. Crawford v. Eves 621 647 1235, 1236 739 957, 959 357 1036, 1422 879, 963 1069, 1088 414 283 537 841, 845 1436 791 1116 76 233 ...Holland 1110,1111,1114 v. Hutchinson 1447 b. Lelean 156 u. Moore 522, 524, 525, 1439 v. Newport &c. Rail Co. 688 v. New York, Mayor &c. of 1363 v. Nickerson 145 v. Roberts 1102 v. Runk 1202 v. Simco 572 v. Weir 47, 48 v. Woodmancy 117 Fielder v. Ray 176 v. Starkin 649, 650 Fielding v. Kymer 297 Fields v. Rouse 1040 Fiese v. Wray 610 Fieze v. Thompson 1322 Fife v. Clayton 1028 Fifield v. Northern R. R. 858 Fifty Associates v. Howland 477 Figes v. Cutler 93, 319 Figgins v. Ward 359 Filbey v. Lawford 1297 Fildes v. Hooker 432 Filer v. Peebles 85S Files v. McLeod 1379, 1381 Filkins v. Whyland 151, 522 Fillebrown v. Grand Trunk R. R. Co. 695 Filson v. Himes 594 Finacune's case 18 Finacune v. Small 663, 664, 673 Finch v. Brook 1191, 1193 v. Finch 212 v. Miller 451, 1195 v. Parker 1506, 1507 Findon v. Parker 998 Finlay v. Bristol & Exeter Rail. Co. 455, 513 Finley v. Quirk 589 TABLE OF CASES. lxxiii Finlie v. Jowle 198 Finn v. Donahoe 589 Finney v. Apgar 542 v. Bedford Ins. Co. 304 v. Fairhaven Ins. Co. 290, 291 v. Turner 11C6 Firbank v. Bell 171 First Cong. Soe. in Lyme v. Miller 1 243 Firth v. Greenwood 150G v. Ridley 1467, 1468 Fischel v. Scott 620 Fish u. Chapman 689, 691, 713 v. Clark 684 v. Dodge 864 v. Hutchinson 750, 759 » v. Kempton 307, 1283 v. Newton 708, 709 v. Richardson 37 Fishburne v. Sanders 954 Fisher v. Bridges 972 v. Campbell 282, 285, 286 v. Clisbee 682, 687, 700 v. Deibert 1029 v. Dixon 490 v. Ellis 51 v. Fallows 746, 890 v. Fellows 70 v. Kay 1421 v. Kinaston 887 v. Leslie 169 v. Marsh 317,512 v. May 46 v. Miller 915 v. Mowbray 206 v. Pollard 644 v. Pyne 70 v. Rieman 627 v. Samuda 650, 825, 1272 v. Shattuck 271, 272, 273 v. Taylor 347 v. Townsend 836 v. Tucker 364 v. Waltham 736 v. Willard 290 ii. Wilson 422 v. Worrall 1474 Fishmongers' Co. v. Robertson 23, 71, 382, 383, 1082 v. Staines 1347 Fish wick v. Milnes 171 Fisk v. Chapman 699 v. Cushman 228, 251 v. Hicks 657 v. Ross 682 Fiske v. Foster 1302 v. Holmes 292 v. McGregor 759 u. McGregory 422, 553, 1372, 1378 Fiske v. Montgomery 141 Fitch n. Burk 416, 522 i>. Casey 431 v. Chandler 7G, 1375 v. Harrington 326 v. Peckham 838 v. Scott 816 v. Stumps 359 u.Sutton 1101,1102,1127, 1146, 1381 Fitchburg Cotton Manuf. Co. v. Melven 456 Fitchburg & Worcester R. R. Co. v. Hanna 706, 707, 710 Fitt v. Cassanet 1089, 1090, 1093 Fitts v. Hall 208, 218 Fitzgerald v. Dressier 750 v. Fauconberg 1166 v. Fitzgerald 223, 1157 v. Graves 809 v. Reed 187, 188 v. Vicars 1456 Fitzherbert v. Mather 281, 1036, 1046 v. Shaw 499, 500, 502, 504 Fitzhugh v. M'Pherson 957 v. Wiman 151 Fitzmaurice v. Bayley 554, 1457 Fitzpatrick v. Beatty 1368 v. Featherstone 1485 Fitzsimmons v. Joslin 281, 282, 1036, 1042 Fivaz v. Nicholls 582, 748, 971, 972 Flagg v. Dryden 571, 573, 1208, 1333 v. Mann 518, 1437 v. Millbury 1017 v. Upham 740 Flarty v. Odium 1364 Fleet b. Pen-ins 224 Fleetwood v. City of New York 934 Fleming v. Alter 76, 1375 v. Gilbert 783 • v. Gooding 462 v. Hayne 263 v. Potter 1210 v. Townsend 572 Flemm v. Whitmore 759 Flemyng v. Hector 288, 339 Fletcher v. Ashburner 1410 v. Bowsher 646 v. Button 429,436,437,438 v. Cole 1090 v. Commonwealth Ins. Co. 1048 i>. Dyche 1274, 1319 v. Dysart 292 v. Grover 891, 893, 1350 v. Harcot 748, 972 v. Heath 299 lxxiv TABLE OF CASES. Fletcher v. Howard v. Jackson v. Marshall v. Pollard u. Spaulding i>. Tavleur v. Willard Flight v. Bolland v. Booth c. Glossopp v. Lenian v. Reed v. Salter Flindt v. Waters Flinn v. Tobin Flint v. Brandon v. Pike v. Sheldon Flockton v. Hall Flood v. Patterson v. Tinlay i. Yandes Florence v. Jennings Flores o. Thorn Flower v. Adam v. Allen v. Hartopp Flowers v. Foreman Floyd v. Day v. Wiley Floyer v. Shearard Flureau v. Thornhill Flynn v. Beebe Fobes c. Cantfield Fogg i'. Sawyer Foggart v. Blackweller 536, 572, 669 895 917 351 133 1332 150 1465, 1480 404, 1059 1384 996 55 1020 259 154, 161, 1044 1424 835 1475 1123, 1124 1224, 1225 1459 353 1174 873 1325 87 1499 133 902, 903 86 30 435, 436 858 957, 958 1107 640 Foley v. Addenbroke 139, 503, 1341, 1342, 1343, 1396 v. Cowgill 1040 v. Fletcher 1147 v. Mason 159 v. Robards 357 Follett v. Rose 30 Folliott v. Ogden 134 Follmer v. Dale 782 Folsom v, Mussey 820 Fomin v. Oswell 805 Fonda v. Van Home 206 Fondren v. Durfee 655 Foorde v. Hoskins 391 Foot v. Baker 1008 v. Brown 744 v. Catlin 1323 v. Sabin 350, 351 v. Tewksbury 193 Foote v. Emerson 852, 853, 976, 982 v. Storrs 668, 680 v. West 427 Foquet v. Moor 412, 461 Forbes v. Appleton v. Cochrane v. Marsh v. Marshall v. Smith Ford v. Adams v. Babcock 934, 943 839 538 345 1225 1380 1225 <. Beech 105,127,1147,1156 v. Chambers 522 v. Cotesworth 1062, 1063, 1077 v. Dornford 1290 i,. Fothergill 203 i'. Haft 352 v. Hitchcock 193, 1 165 v. Monroe 734 v. Noll 1195 v. Phillips 215, 216, 221 v. Rehman 36 v. Stuart 1366, 1467 v. Tiley 1067, 1068 v. Yates 144 Fordley's case 1188 Fordyce v. Ford 1491, 1495 Foreman v. Hardwick 736 Fores v. Johnes 981 v. Jones 582 Forkner v. Pearl 828 v. Stuart 345, 572 Forniquet v. Forstall 1444 Forquet v. Moore 420 Forrer v. Nash 1481, 1492, 1496 Forrest v. Hunt 919, 1010 c. Warrington 135s Forrester's ease 222 Forrestier v. Boardman 295 Forster v. Fuller 29 ■ . Hoggart 429 v. Mackreth 349 ... Taylor 586, 588, 1 356 Forsyth v. Bristowe 1228 v. Day 288, 291, 292, 308 u. Dickson 531 v. Ellis 626 v. Ganson 888 v. Hastings 217, 844 v. Jervis 181 v. Milne 212 u. Ripley 1104 u. State 971 Fortblow v. Shirley 1493 Forth v. Simpson 802 u. Stanton 35, 372, 876, 1373 Forward v. Pittard 690,711,1075 Foshay v. Ferguson 271, 948 Foss a. Hildreth 191, 193, 270, 271 v. Nutting 134 v. Richardson 924 Foster o. Allanson 341, 342, 966 v. Andrews 349 TABLE OF CASES. lxxv Foster v. Bates v. Caldwell v. Charles v. Clark v. Colby 290, 306, 378 6 tO 579, 104.} 999, 1000 1371 v. Dawber 1148, 1149, 1242, 1254, 1370 v. Essex Bank 282, 286, 664, 868 v. Frampton 605, 607 v. Fuller 311 v. Hall 357 v. Hooper 1356 v. Jack 1230, 1231 v. Jolly 145 v. Ley 885 v. Maekinnon 1035 v. Mackreth 349 v. M'Mahon 1507 v. McO'Blenis 100 v. Mansfield 5 v. Mentor Life Assurance Co. 97 v. Paulk 1106 v. Pettibone 672 v. Peyser 314, 470 v. Pugh 572, 573 v. Purdy 1146, 1147 v. Redgrave 203' v. Ropes 522 v. Starkey 1258 t: Stewart 85, 906 v. Swasey 282, 290 v. Taylor 1004, 1353 v. Thackeray 736 v. Thompson 975 v. Thurston 586 v. Trull 1125 U.Wallace 573 v. Weston 952, 953, 954 v. Wilson 1286 Fothergill v. Jones 1 266 Foulk v. Brown 1104 Foulkes v. Sellway 793 Foultz v. Pourie 364 Fountain v. Smith 257 Fowkes v. Manchester & London Life Assur. Assoc. 1047 Fowle v. Bigelow 106 v. Smith 1166 Fowler v. iEtna Ins. Co. 142 v. Armour 840 v. Bott 468, 514 v. Brooks 775 v. Dorlon 676 v. Down 267 v. Hunt 1225 v. Hunter 126 v. Lightburn 1445 Fowler v. McTaggart 605 v. Poling 1382, 1398, 1399, 1400 u. Rendicau 97 «. Scottish Life Ass. Co. 102!i v. Shearer 310,911,946,953 Fowles v. Dineley 250 v. Great Western Rail. Co. 704 Fox ;>. Blossom 709 v. Clifton 325, 326, 336, 337, 33S. 344 v. Cutworth 903 v. Drake 386 v. Fiske 285, 1217 v. Hanbury 345, 360 v. Harding 1327 v. McGregor 6 79 v. Macreth 1049 v. Nott 1371 v. Scard 1321, 1482 Foxcraft v. Devonshire 1035 Foxcroft Acad. v. Favor 51 Foxwirst v. Tremaine 377, 1406 Foy v. Troy & Boston R. R. Co. 704 Fragano v. Long 613. 620, 722 Fraley v. Bispham 641 Frame v. Dawson 1454 France v. Gaudet 1325 v. White 12V 7, 1401 Franchot v. Leach 426, 427 Francis v. Castlewain 955 v. Cockrell 730 i'. Dodsworth 1275 v. Felmit 200 v. Hawkesley 1245 v. Rand 1273 v. Wigzell 1440 Francis & Cargo, The 259 Francisco, in re 839 Frank v. Edwards 7 76 v. Harrington 415, 416 v. Mainwaring 1438 Frankland v. Cole 819 Franklin v. Camp 1220 r. Carter 465, 473 v. Long 155, 156, 517, 648, 649, 1030, 1148 v. Miller 1086, 1089, 1092 v. Raymond 928 v. South Eastern Rail. Co. 734 v. Vanderpool 1106 Franklin Bank v. Cooper 773 v. Steward 285 Franklinski v. Ball 1471 Franklyn v. Lamond 309 v. Tuton 1468 Franks, ex parte 253 Franks v. De Pienne 254 txxvi TABLE OF CASES. Fraser v. Thomas 1432 Frasier v. Cushman 1190 Fray v. Voules 817 Frazer v. Bnnn 1111 v. Hilliard 520, 528, 605, 606 v. Jordan 783 v. Pendlebury 942 v. Robinson 462 Frazier v. Massey 205, 223 v. Rowan 199 i>. Warfield 131 Freake v. Cranefeldt 1244 Freak ley v. Fox 1156 Frear r. Evertson 1153,1368 v. Hardenbergh 34, 415, 420 Fredd v. Ewes 245 Free v. Hawkins 145 Freeland r. Edwards 952 r. Pearson 1497 u. South worth 49,2 Freeman r. Appleyard 298 v. Baker 579, 634, 1044 v. Birch 723 v. Boston 12 v. Boynton 31 v. Clute 632, 647, 1327 v. Cooke 8 v. Eenton 263 v. Freeman 423 r. Jeffries 933 v. Otis 900 v. Pope 570 v. Rusher 281, 865 s. Wyatt 1274 Freeman's Bank v. Rollins 779, 7»0 v. Ruckman 132 Freeport v. Bartol 96, 422 Freer v. Hesse 1499, 1500 Frecston v. Butcher 232, 237 Freme v. Wright 1059 French c. Andrade 1279 v. Fenn 1287 r. French 740, 1379 v. Hall 128 v. Lafayette Ins. Co. 1214 v. Macale 1320 v. Patten 175 v. Price 301,1139 v. Reed 42, 667 i'. Styring 341 v. Townes 405 v. Trewin 1086 v. Vining 635 v. Watson 1200 Frend v. Buckley 432 e. Dennett 390 Frentress v. Markle 1122 Frescobaldi v. Kinaston 1291 Freto v. Brown 214, 215 Frewen v. Relfe 1438 Fridge v. The State 206 Friend v. Harrison 980 Fries v. Boiselet 1239 Frink t. Green 1154, 1156 v. Potter 730, 731, 732 Frisbie v. Earned 1372 Frith v. Barker 157 v. Rotheram 171 v. Sprague 884 Fritz v. Thomas 1258, 1264 Fromont v. Coupland 324, 340, 342, 343 Frontier Bank v. Morse 1107 Frost v. Belmont 982, 995 v. Blanchard 638 v. Case 77, 78, 900 u. Hull 1017 v. Jackson 1091 v. Johnson 1122 o. Knight 792, 795, 1067 v. Willis 243 v. Wood 293 Frostbnrg Mining Co. v. New Eng- land Glass Co. 555, 561, 562 Frothino-ham v. Everton 281 v. Halev 290 Fruhling v. Schroedei- 915, 950, 952 Fry v. Evans 1279 o. Hill 616 v. Malcolm 88, 994 Fryburg v. Osgood 1254 Frye v. Barker 779, 1248, 1250, 1251 v. Lock wood 386, 911 Fryer v. Roe 963, 1230 Fuentes r. Caballero 650, 658 v. Montis 298 Fugate v. Hanford 546 Fuhr v. Dean 418 Fulham v. McCarthy 1443, 1444, 1446, 1447 Fullam v. Valentine 779, 1147 Fuller v. Abbott 1002 l. Abrahams 408, 565 v. Bean 518, 522, 524 v. Bradley 681 . . Brown' 849, 850, 1078 v. Buswell 518 v. Crittenden 1118 v. Dame 982, 1003 r. Fenwick 1318 i>. Hooper 306 v. Hovey 433, 1507 v. Hubbard 425, 427 v. Little 921, 846, 1192 i: Naugatuck R. R. Co. 726 v. Pelton 1185 v. Perkins 1474 v. Prentice 874 v. Shattuok 946 TABLE OF CASES. lxxvii Fuller v. Smith 308, 931 v. Swett 512, 1081 v. Voyt 868 v. Williams 427 v. Wilson 281, 1044 v. Wright 1277 Fullerton v. McCurdy 1446 Fulton v. Matthews 779 v. Moore 413 Furbish v. Goodnow 758 Furbush v. Goodwin 141,1119 Furillio v. Crowther 212 Furley v. Wood 146, 484 Furlong v. Bartlett 204 v. Hysoni 234 u. Leary 477 v. Polleys 621 Furman r. Parke 11 Furnival v. Crew 1432 Furnivall v. Combes 128, 395 Furtado v. Rodgers 1000 Fusselman v. Worthington 462 Fyson v. Chambers 267, 1305, 1419 G. Gaber v. Driver 427 Gable v. Moss 1070 Gabriel e. Dresser 1124 v. Evill 328 v. Sturgis 1441 Gaffield v. Hapgood 496, 500 Gage v. Allison 278 v. Newmarket Eail. Co. 117, 385 Gahn r. Neincewiez 779 Gailey v. Washington 1264 Gaillon v. L'Aigle 254 Gaines v. Brings 314 v. Mckinley 287 Gainsford v. Carroll 621 Galbraith v. Galbraith 423 v. Whyte 626 Gale, ex parte 1172 Gale v. Burnell 518, S28 v. Capern 1251 v. Dean 439 v. Leckie 319, 340, 822, 836, 978 v. Luttrell v. Nixon v. Parrott v. Tappan v. Ward v. Williamson Galena & Chicago Co. v. Fay Galena & Chicago Union K. R, Co. v. Yarwood 1277 6, 94, 546 214 278, 280 492, 493, 501 27, 578 Union R. R. 727 732 Gallagher v. Piper 858 v. Roberts 1372 v. Thompson 808, 809, 813, 817 v. Waring 632, 634, 637 Galliniw. Laborie 1003, 1088 Gallop w. Newman 322, 556 Galloway v. Holmes 89 v. Hughes 709 v. Ogle 462 Gallup v. Coit 1212 Gallway v. Matthew 358, 1355 Galphin v. McKinney 781 Galsworthy v. Strutt 1317, 1318, 1320 Gait v. Galloway 278, 280 Galton v. Emuss 408 Galusha v. Cobleigh 1221 Galvanized Iron Co. v. Westoby 325 Galway, Lord v. Mathew 882 Gamage v. Alexander 530 Gambert v. Hart 817 Gambling v. Read 538 Games v. Manning 1208, 1210 Gammon v. Howe 1317 Gandell v. Pontigny 843, 855 Gannett v. Albree 1509 Gano v. Renshaw 1483, 1496 Gansevoort v. Williams 351, 385 Ganson v. Madigan 614, 1330, 1331 Garbrand v. Allen 401 Garbutt v. Bank of Prairie &c. 566 v. Watson 542 Garden v. Bruce 1232 Gardiner v. Childs 334 v. Davies 316 v. Gray 634 v. Holt 1292 v. Hopkins 751 v. Morse 408, 409 v. Williamson 659 Gardiner Manuf. Co Gardner v. Adams v. Allen v. Buckbee v. Cleaveland v. Corson v. Davis v. Duich v. Gardner v. Green v. Grout v. Hoeg v. Heald 906 1364 306, 1283 1176 880 1082 1096 525 192, 276 682 563 529, 1358, 1362, 1363, 1364 v. Houghton 1302 v. Rowland 556 v. Joy 542 v. Lane 517 c. McMahon 1239, 1240, 1242 v. Ogden 1427 lxxviii TABLE OF CASES. Gardner v. Walsh 1163 v. Webber 21, 1260 Gardom, ex parte 350 Garforth ... Bradley 225, 1404 Garland v. Carlisle 960 v. Chambers 573 v. Davidson 353 , v. Reynolds 303 v. Richeson 1358 v. Salem Bank 911,928 Garment v. Barrs 654, 655 Garnett v. Macon 1146, 1156, 1504, 1506 v. Willan 721 Garnsey v. Allen 880 Garrard v. Cottrell 747 v. Frankcl 1025, 1029 v. Giubilei 1401 v. Grinling 1028, 1460 v. Hardy 1012 a. Lauderdale, Lord 577 v. Woolner 1157 Garrett v. Handley 150, 305, 316 o. Taylor 1350 Garrod v. Simpson 1308 Garside v. Trent & Mersey Nav- igation Co. 673, 703 Garton v. Bristol & Exeter Rail. Co. 685, 692, 941 Garwood v. Ede 926 (lary v. James 798 Gascoyne v. Edwards 1180 v. Smith 1141 Gaskarth v. Lowthcr, Lord, 1478 Gaskell v. King 1002 v. Morris 1331 Gas Light Co. u. Turner 582, 971, 975, 1005, 1466 Gass v. Stinson 1116 Gass & North v. New York, Prov. & Boston R. R. Co. 705 Gassaway v. Hopkins 133 Gassett v. Andover 37S, 1195 Gaston v. Frankum 1441, 1448 Gaters v. Madeley 228, 1401, 1402, 1404 Gates v. Brower 239, 240 i'. Bushnell 1261 v. MeKeu 92 Gatewood v. Palmer 954 Gath v. Lees 1062 Gatty v. Field 919,920 Gaussen v. Morton 913 Gautier c. Franklin 1215 Gay o. Ballou 214, 216 v. Gay 1367 v. Kingsley 251 Gayle v. Benson 1361 Gazley v. Price 429, 430, 1084 Gazzam v. Kirby 828 Gear v. Putnam 1018 Geary v. Physic 90 v. Reason 126 Geddes v. Pennington 1039, 1042 v. Wallace 329 Gedye v. Montrose, Duke of 434, 1433 Gee v. Lancashire & Yorkshire Rail. Co. 725, 1325, 1326 v. Pearse 1507, 1508 v. Smart 1310 Geeckie v. Monk 452 Geer v. Archer 53, 56 v. Geer 81, 921 Geere i>. Mare 973 Geist-r v. Kershner 1054, 1101, 1135 Gell e. Burgess 1322 v. Vermedun 1436 Gellar, ex parte 319 Gelly v. Clarke 674 Geltson b. Hoyt 954 General Discount Co. v. Stokes 1298 General Steam Navigation Co. v. Gillou 133 General Steam Navigation Co. v. Slipper 1076 Genery v. Owings 103 (ient v. Tomkins 393 George v. Bartlett 157 v. Claggett 306, 1283 v. George 591 r. Harris 51 t-. Joy 159 v. Kimball 567 v. Lonsley 809 v. Norris 1475 o. Perring 871 v. Pritchard 432 v. Putney 462 v. Skivington 635 v. Stubbs 522, 538 Gerard v. Bass 353 Gerhard v. Bates 28, 578, 1038, 1049 Germain v. Frederick 1356 Germaine v. Burton 651, 652 German v. Machin 1430, 1453, 1455 Gerrard v. Woolmer 1372 Gerrish v. Sweetser 1363, 1365 i/. Towne 149 Gervais v. Edwards 1467, 1504 Getchcll v. Chase 1092, 1093 v. Heald 1248 v. Jewett 97,411 Ghent v. Adams 386 Gibbins v. North East. Metropoli- tan As\lum District 15 v. Phillips 938 Gibbon v. Budd 836 TABLE OF CASES. lxxix Gibbon v. Coggon 55 v. Paynton 697 v. Young 116 Gibbons v. Hooper 1003, 1020 v. MoCasland 1245 v. Rule 806 v. Vouillon 1147 Gibbs v. Bryant 70, 889, 951, 953, 957 v. Champion 1421 v. Chisholm 958 v. Estey 503 v. Fremont 131, 955 v. Gray 1060 v. Harding 989, 1469 v. Jemison 439 v. Linsley » 285 v. Merrill 52, 210, 215 v. Southam 1072 v. Stead 1199 Gibbs and West's case 1289 Giblin v. McMullen 663, 664, 665 Gibson v. Bell . 1285 v. Bruce 934, 1051 v. Carruthers 266, 601, 1363, 1416, 1417 o. Colt 285 v. Cooke 1358, 1365, 1380 v. Courthope 370 v. Culver , 702, 708, 709, 710 v. Dickie 57, 979, 990 v. East India Co. 381 v. Eller 1484 v. Fifer 1235 v. Finley 1365 v. Gibson 1146, 1147 v. Goldsmid 1509 v. Hanna 1119 i). Holland 547 V. Holt 285 v. Kirk 511 v. Love 572 v. Lupton 331, 611, 1356 ti. Minet 137,913,914,915 v. Moore 342 v. Overbury 1419 v. Soper 189, 191, 220, 402, 1093, 1441 v. Spurrier 406, 1059 u. Stevens 556, 936 v. Vaughn 493 v. Wells 466 ^.Winter 1152 Giddings v. Coleman 1368 v. Penning 1307 Gidley v. Palmerston, Lord 387 Giener v. Meyer 135 Gifford, ex parte, 781, 783, 891, 892 v. Allen 781, 782 Gifford v. Whitaker 1130 Gilbert v. Beach 864 v. Bulklcy 1398 v. Danforth 1204, 1209, 1210 v. Driver 954 v. Fletcher 199 v. Ross 923 v. Sykes 102, 735, 736 v. Thompson 538, 1176 d. Williams 816, 817 Gilchrist v. Bine 431 v. Ward 1111 (,-. Williams 1275 Gildersleeve v. U. S. Tel. Co. 725 Gile v. Stevens 493 Giles v. Bradley 1061, 1062 v. Edwards 922 v. Giles 73, 1085 v. Hart 1199 v. Jones 587 v. Simonds 416, 418 v. Taff Vale Rail. Co. 712 Gilhooley v. Washington 465, 1082 Gill v. Bicknell 413, 426 v. Brown 386 v. Kuhn 329, 331 p. M'Atee 1456 Gillard v. Brittan 600, 622 Gillespie v. Gillespie 1038 v. Moon 1459 v. New York, Mayor &c. of 959 v. Wesson 313, 386 Gillett v. Fairchild 1358, 1361, 1364 v. Hill 524 v. Mathews 463 v. Mawman 833, 837, 1274 v. Maynard 404, 921, 924 v. Rippon 746 Gilley v. Singleton 359 Gilliard v. Brittan 619 Gilliat v. Gilliat 410 Gillingham v. Waskett 1269 Gillinghan v. Boardman 92, 740, 761 Gilliott v. Gilliott 407 Gillis v. Bailey 297 v. Hall 1482 Gillow v. Lillie 223 Gillshannon v. Stony Brook R. R. Co. 858 Gilman.D. Cutts 1224 v. Hall 827, 828, 846 v. Hill 542, 555 v. Kibler 36, 92 v. Moore 1211 p. Peck 1107 v. Robinson 288 v. Van Slyck 1273 Ixxx TABLE OF CASES. Gilmore v. Black 319, 320 v. Carman 690 v. Holt 1193 v. Lewis 12, 1000 v. Pope 303 v. Wilbur 86, 419, 906, 1346 1349 Gilmour v. King 995 i'. Supple 519 Gilpin v, Enderby 322 v. Rendle 594 u. Temple 320 Gilpins v. Consequa 66, 620, 621, 1074, 1209 Gilroy v. Alis 1024, 1473 Gingell v. Glascock 887 v. Purkins 904,931,1275 Girard v. Taggart 304, 600 Girardy v. Richardson 980 Giraud v. Richmond 100, 842 Gisbourn v. Hurst 683 Gladstone v. Hudwen 56 7 Gladwell v. Steggall 808 Glaholm v. Hays 1082 Glasgow v. Hobbs 29 p. Sands 226 Glass o. Beach 52 a. Hulbert 1029, 1437, 1450, 1451, 1453, 1457, 1459, 1474, 1475 v. Lobdell 899 Glasscott u. Lang 1449 Glass Manufactory v. Binney 85 Glassop v. Colman 321 Glaze u. Drayton 1436 Glazebrooke v. Woodrow 1082 Gleason v. Clark 821 b. Dodd 280, 1177, 1178 v. Drew 540, 1093 v. Pinney 623,1323 o. Smith 827, 830 Glen, ex parte 1306 Glen o. Dungey 444, 513 Glenn v. Noble 1106 v. Smith 1135, 1136 Glentworth r. Luther 318 Glevester «. Hunter 612 Globe Works v. Wright 103 Gloucester Bank v. Salem Bank 931, 932, 936, 1106, 1107 Glover v. Austin 573 v. Fisher 1436 v. Halkett 165 v. Huston 651 o. Ott 196 Glyn v. Hertel 772, 777, 876 Goatc v. Goate 12-15 Godard v. Gray 88, 1 1 79 Goddard v. Bolster 498 v. Bulow 939 Goddard v. Chase 492 v. Cox 1111, 1112, 1113 v. Hodges 340, 1113 v. Ingram 1257 v. Merchants' Bank 928 v. Mitchell 921 v. Pratt 329, 362 Godefroy v. Dalton 8 1 7, 81 9 w.Jay 820,1322 Godfrey v. Saunders 296 v. Turnbull 361 Godolphin v. Tudor . 1014 Godson v. Smith 1175 Godts v. Rose 519, 524, 526, 527 Godwin v. Cully 1251 v. Francis 18, 314, 437, 438, 439,550 Goepel v. Swinden 894 Goffi v. Rehoboth 951 Goicoechea v. La. State Jns. Co. 120 Gold v. Philips 76, 756 v. Whitcomb 1220 Golden v. Levy 278, 304 l: Manning 708, 711 Goldcr v. Ogden 525 Goldey v. Penn. R. R. Co. 691, 732 Goldicutt v. Townsend 1454 Goldrich v. Ryan 636 Goldshede v. Swan 151, 741 Goldsmid v. Hampton 265, 1022 v. Tate 1335 Goldsmith v. Guild 1508 v. Martin 928 Goldstone v. Osborne 1183 v. Tovey 240 Goldsworth r. Knights 463 Golightly ti. Jellicoe 1172 GcHnan v. Salisbury 155, 1148 Gompertz v. Bartlett 627, 633, 1090 v. Denton 649, 656 v. Pooley 1310 Gonzales t>. Sladen 315 Gooch v. Bryant 1166, 1167 o. Holmes 541 Good v. Cheeseman 1122, 1123, 1124, 1157, 1160, 1372 v. Elliott 735 v. Good 438, 1267 v. Mylin 1329 Goodale v. Wheeler 294 Goodall v. Lowndes 910, 945 v. Richardson 669 v. Skelton 614 u. Wentworth 884, 889, 890, 892 Goodburn v. Stevens 360 (Joodchild v. Fenton 952 Goode v. Harrison 204,217,321,332, 361 TABLE OF CASES. lxxxi Goode w. Howells 660 Goodenow v. Tyler 295 Goodhue v. Barnwell 229 v. Dix 867 Gooding v. Morgan 929, 930, 934 Goodland v. Blewith 1186,1199 Goodloe v. Clay 951 Goodman v. Chase 759, 1373, 1381 v. Griffin 779 v. Griffiths 545 v. Pocock 830, 847, 855, 1092 w.Walker 817 Goodnow v. Smith 62, 346, 1102, 1156 Goodrich v. Frazier 736 v. Jenkins 1177 v. Jones 493, 509 v. Lafflin 1090 v. Longley 155 v. Stanley 1123, 1124 v. Willard 802 Goodridge v. Ross 221 Goodright v. Cordwent 488 v. Richardson 450 Goodsell v. Myers 205, 216 Goodson r. Forbes 1 74 Goodtitle v. Bailey 111 v. Way 172, 443 v. Woodward 479 Goodwin v. Baltimore &c. R. R. Co. 709, 712 v. Blake 994 v. Coates 1144 • v. Cremer 1103, 1133, 1322 v. Cunningham 1368 v. Fielding 1502 v. Gilbert 22, 88 v. Holbrook 1080, 1202, 1203, 1204, 1210 v. Hubbard 160 v. Morse 651, 652, 653, 654, 657, 1094 v. Noble 368, 1394 v. Union Screw Co. 379 Goodwyn w. Douglas 613, 723 v. Goodwyn 572 Goodyear v. Ogden 151 Gookin v. Graham 626 Goold v. Chapin 703, 709 Gordon v. Baltimore 946 v. Brow'n 1482 v. Buchanan 286, 689 v. Bulkley 276 v. Calvert 785 v. Ellis 347, 1277 v. Hertford 141, 1028 v. Hutchinson 682 v. Norris 426, 615, 1330, 1331 v. Potter 210, 211 Gordon v. Price 1134 v. Rolt ' 865, 866 v. Sims 413 v. Strange 1106 v. Swain 952 Gordon, Lord, v. Hertford, Mar- quis 1460, 1473 Gore !». Gibson 192, 193 v. Lloyd 440, 441, 444 v. Stackpoole 1445 v. Wright 461 Gorely v. Gorely 1310 Gorgie v. Mieville 300 Gorham v. Fisher 543, 555 v. Thomson 361 Goring v. Edmonds 774, 780 v. Goring 372 Gorissen v. Pen-in 158, 620 Gorman v. Boddy 559, 1059 Gorton v. Dyson 373 v. Gregory 1394 Gosbell v. Archer 99, 427, 550 Goslin v. Plodson 673,825 Gosling v. Higgins 690 Gospelv. Whitcomb 1260 Goss v. Nugent, Lord 153, 155, 1147, 1148 v. Quinton 1000 v. Turner 1213 v. Whitney 588, 591 Gott v. Gandy 470 Gough v. Dennis 1043 v. Edelen 527 v. Farr 792, 1336 v. Findon 962 v. Howard 508, 509 v. St. John 1043 v. Staats 1106 Gould v. Armstrong 38 v. Banks 90, 1213 v. Coombs 169, 968 v. Fuller 893 v. Gould 319, 890 v. Hammersley 1334 v. Hill 691, 713 v. Johnson 1264 v. Shirley 1246 v. Thompson 454 v. Ward 571 v. Webb 1100 v. Womack 1483 Goulding, ex parte 354 Goulding v. Davidson 56 Gouldsworth v. Knights 397, 1392 Gouthwaite v. Duckworth 334 Gover v. Christie 1360 Govier v. Hancock 249 Gowan v. Forster 1252, 1256 v. Jackson 359 VOL I. / lxxxii TABLE OF CASES. Goward v. Waters Gowdy v. Lyon Gowen v. Klous v. Shaw Gower v. Capper v. Emery 21, 25, 149 702 91 516 50 281, 745, 806 v. Von Dadelzen 106, 641 Grace v. Adams 690, 691, 696 v. Hale 196, 221 v. MeElroy 73 7,920 v. Smith 326 Graddon v. Price 1071 Graeme v. Wroughton 1016 Graff' v. Bloomer 702 v. Hitchman 329, 347, 357 Grafton v. Armitage 530, 834 Grafton Bank v. Doe 1231 v. Kent 145 v. Woodward 781 Graham v. Allsopp 1267, 1288 v. Birkinhead &c. Railway Co. 1507 v. Dyster 297 v. Fretwell 553 v. Furber 577 v. Gibson 73 o. Gill 869, 870, 871 b. Graham 436 v. Harris 344 v. Hope 362 v. Hunt 2C3 n. Jackson 1331 k. Musson 99, 275, 544, 553 v. North Eastern Rail. Co. 73] o. Oliver 14*0, 14«9 v. O'Niel 751, 769 B . Partridge 1289 U.Robertson 1348,1350, 1351 v. Tate 934, 943 v. Wade 473 v. Western U. Tel. Co. 684 v. Wbichelo 460 v. Williams 953 v. Yeates 1430 Gram v. Caldwell 332,358,1153 v. Seton 352 Grandy v. McCleese 1084 Granger v. Brown 485 v. Collins 46 7 v. George 1235 v. Granger 1279 Granite Railway Co. v. Bacon 1161 Grant v. Astle 1335 v. Beard 291, 292, 1036 v. Craigmiles 921 v. Fletcher 551 v. Hcaley 135 v. Hill 14 Grant v. Johnson v. King v. Lev an v. McLester v. Maddox v. Munt v. Naylor v. Norway v. Risdale 1084 672 546 990 132, 152, 1073 1476, 1495 741 7, 282 ' 769 v. Royal Exchange Assur. Co. 1269,1270, 1277 v. Thompson 187, 189, 1050 Grantham v. Hawley 517,528,529, 1363 Granville v. Beaufort, Duchess of 155 v. Betts 1468 Gratz v. Stump 1357 Gravenor v. Woodhouse 462, 464, 465 Graves v. Boston Marine Ins. Co. 304 r. Carruthers 1074 b. Carter 1120 v. Delaplaine 971 v. Graves 9 v. Hartford & N. Y. Steam- boat Co. 708, 709, 710 v. Key 150, 1119 v. Legg 295, 1082, 1083 v. Merry 361, 364 v. Ticknor 41, 665 v. Weeks 134,1216,1223 v. Weld 505 Gray v. Bowles 889 i'. Brackenridge 8%5 b. Chamberlain 448 v. Clark 105, 117, 120 v. Cox 632, 636 v, Griffith 6 v. Gutteridge 912 v. Harper 152, 160 u. Hill 421 v. Holdship 499, 500, 501 v. Hook 990, 1016 v. Jackson 706, 707 v. Murray 297 o. Otis " 231 v. Palmer 413 v. Patton 413 v. Van Amringe 951 v. Wilson 1267 Grayton v. Wilkinson * 816, 820 Great Falls Manuf. Co. v. Wooster 1427 Great Northern Rail. Co. v. Eastern C. Railway Co. 1466 Great Northern Rail. Co. v. Har- rison 125, 727 Great Northern Rail. Co. v. Man- chester &c. Railway Co. 1470 TABLE OF CASES. lxxxiii Great Northern Rail. Co. v. Mor- villo 693, 696 Great Northern Rail. Co. v. Shep- herd 698 Great Western Rail. Co. v. Blake 731 Great Western Rail. Co. v. Cripps 1474 Great Western Rail. Co. v. Good- man 695 Great Western Rail. Co. v. Red- mayne 725, 1326 Great Western Rail. Co. v. Rimell 720 Great Western Rail. Co. v. Sutton 687, 941 Greaves v. Ashlin 160, 599 v. Hepke 613 Greeley v. Wyeth 1092 Greely v. Bartlett 295 v. Dow 775, 782 Green v. Armstrong 416, 418 v. Bartlett 803 v. Baverstock 406, 409, 938 v. Beals 353 v. Beesley 319 v. Bicknell 1299 u.Clark 1171 i>. Cresswell 750, 754, 756, 757, 760 v. Davies 179, 962, 964, 968 v. Deakin 354 v. Finin 1450 v. Gosden 1043 v. Gray 169 v. Green 424, 427 v. Greenbank 207 r. Hall 531 v. Hatch 1367 v. Hewitt 948 !>. James 1399 v. Kopke 315 v. Laurie 1296 v. Low 1464, 1472 v. Lowell 1097 v. Maiden 500 v. Merriam 560 v. Morris 1024 v. Price 1001 v. Proctor 441 v. Pulsford 1499 v. Recce 812 v. Reynolds 424, 425 v. Rivett 1215 v. Saddin^ton 421, 422 v. Shurtliff 1185, 1191 v. Smith 1425 v. Snead 1458 v. Speakman 1336 v. Sperry 209, 232 v. Stone 947 Green v. Tanner 301, 347 v. Thomas 6 v. Warrington 780 v. Wynn 775 Greenaway v. Adams 1421 Greunby v. Wilcocks 1357 Greene v. Bateman 1024 v. Darling 1368 v. Dingley 1062 v. First Parish in Maiden 492 v. Goddard 806 v. Hatch 1368 v. Munson 462 o. West Cheshire Railway Co. 1430 Greenfield Bank v. Crafts 288 Greenland v. Chaplin 733 Greenleaf v. Hill 228 o. Kellogg 957,959,1172 v. McColley 795 v. Moody 295 v. Quincy 1248, 1256. Greenlcy v. Wilcox 1398. Greenly v. Hopkins 952' Greenough v. Balch 974 v. M'Lelland 145, 784 Greenslade v. Dower 345, 349, 356 Greenup r. Stoker 790,, 792 v. Vernon 453, 516. Greenway v. Hurd 910 Greenwell v. Greenwell 213 Greenwood v. Colcock 1000 u. Curtis 128, 945, 975 v. Ligon • 430 v. London, Bishop of 1002, 1003 Greer v. George 26 Gregg v. Cooper 205 (.-. James ' 1278 v. Wyman 589, 1019 Greggs v. Wells 8 Gregory v. Doidge 464 v. Frazer 192 v. Harman 373 v. Hurrill 1225 v. M'Dowel. 621 v. Mighell 1451, 1455 v. Parker 1247 v. Paul 254 v. Pierce 254 v. Piper 282, 865, 866 v. Stryker 672 v. West Midland Rail. Co. 692 v. Wilson 1509 Gregson v. Ruck 551 Grell v. Levy 972 Gremare v. La Clerc Bois Valon 1004 Grenfell v. Girdlestone 1250 Greningham v. Ewer 1074 lxxxiv TABLE OF CASES. Gresty v. Gibson 78, 1306 Greville o. Atkins 1014, 1015 v. De Costa 439 Grew v. Burditt 1279 Grey v. Ellison 1340 v. Mendez 1222 u. Smith 1121 Grice p. Kenrick 316 v. Ricks 743 Gridley v. Dole 340, 342 Grieve v. Annin 1208, 1209 Griffin v. Colver 1327, 1328 v. Cunningham 1496, 1500 v. Fairbrother 1388 v. The Justices &e. 1264 v. Langfield 205, 722 i. Weatherby 915 Griffinhoofe r. Daubuz 746 Griffith i. Buff'um 319 v. Chew 344 c. Cox 1168 v. Fowler 535 i. Griffith 283 v. Jngledew 608, 612, 722, 723, 724 v. Spratley 30 v. Young 918 Griffiths v. Gidlow 858 c. Owen 565, 1130, 1134 v. Perry 622 v. Puleston 506 v. Rigby 118 Grigby r. C'. liarrit 1290 Grindell ». Godmond 218 Grinnell v. Cook 675, 676, 679, 802 Grissell v. Bristowe 746, 1427 w. Robinson 70, 885 Griswold v. Messenger 422, 1120 v. New York Ins. Co. 1094 v. Plumb 1071 v. Sabin 426, 1331 v. Waddington 259, 321, 359, 360, 361, 1000 Grizewood v. Blane 1007 Grocers' Bank v. Kingman 763, 765 Groning c. Mendham 613,651 Groom v. Aflalo 551 v. Bluck 745 v. Mcaley 1288 v. Watts 1055 Groom v. West 1272, 1285 Groome, ex parte 1294 Grose v. Hennessey 657 Grosvcnor v. Lloyd 330, 362 Grote v. C. & H. Kailway Co. 729, 731 Groton v. Waldoborough 945 Grout v. Gile 1332 v. Hill 293, 567, 601, 603, 611 Grove i'. Bastard 1499 v. Brien 722 v. Donaldson 1087 ». Nevill 207 Groveland v. Medford 81 Grover v. Grover 60, 1359 Groves v. Buck 543 u. Groves 7 Grow v. Albee 939 Grozier v. Attwood 324 Grubbs v. Wiley 310 Grundin v. Carter 465 Grymes v. Bloficld 1133 v. Boweren 490,491, 497, 499 Guard v. Whiteside 1146, 1147 Gudgen v. Bessett 5 Gutnther v. Birkicht 838 Guerdon v. Kirtland 431 Guernsey c. Carver . 1172 Guerry v. Ferryman 1367 Guest v. Homfray 1508 v. Smythe 977 Guidon i'. Robson 331 Guier v. Page 107 Guild e. Baldbridge 929, 930 v. Guild 797, 838 Gulick v. Gulick 342 p. Ward 409, 982, 1003 Gull v, Lindsay 750 Gullett v. Lewis 1097 v. Lumberton 222 Gulliver v. Cosens 943 v. Gulliver 1311 Gully v. Exeter, Bishop of 27, 59 v. Grubbs 1120 i,. Remy 956 Gumm v. Tyrie 1340 Gunn v. Scovil 511 Gunnis v. Erhart 154 Gunnison v. Bancroft 104, 105 Gunter v. Halsey 1453, 1457 v. Thomas 1463 Guptill v. Damon 103 Gurley v. Allen 87 v. Hiteshue 1474 Gurney v. Behrend 608 v. Womersley 627, 931, 1090 Gurnons v. Hodges 34 Gurr v. Scudds 181, 182, 542 Gurrin u. Kopera 1306 Guthing v. Lynn 68, 93, 1073 TABLE OF CASES. lxxxv Guthrie v. Hyatt 898 v. Murphy 203 v. Thompson 424, 425 Guy v. Burgess 218 v. McLean 6 v. Tarns 1240, 1246, 1262 Gwillim o. Daniell 115, 620 u. Stone 445 Gwinn v. Whitaker 1117 Gwyn v. Godby 84, 952, 959 Gwynne, ex parte 602 Gwynne v. Burnell 763 H. Habberton v. Wakefield 947 Hackett v. Huson 425, 427 v. Kendall 1224 v. King 271 u.Martin 1153,1367,1368 Haddon v. Ayers 139 Haden v. Walker 1361 Hadfield v. Jameson 348 Hadley v. Baxendale 725,1325,1326 v. Clark 1074 v. Green 1174 v. Snevily 589 Hadwen v. Mendizabel 1144 Hague v. Rolleston 360 Haigh v. Brooks 29,50,179,741 v. De la Cour 1035 v. Jackson 1297 v. North Brierly Union 378, 382, 394 v. Paris 1170 Haiman v. Moulton 32 Haine v. Tarrant 198 Haines v. Busk 805 v. Corliss 226 v. Dennett 1161 v. Tucker 1331 v. Welch 505 Hainston i>. Jaudon 1451 Hair v. Bell 844 v. La Brouse 141 Hairston v. Jaudon 423 Hakes v. Hotchkiss 40, 141, 154 Halburton v. Frankfort 80 Haldane v. Johnson 1069, 1187 Haldeman v. Duncan 525 Haider v. Taylor 125 Hale, ex parte 1286 Hale v. Gerrish 216, 221 v. Handy 1179 v. Henderson 582 v. Henrie 413 v. Huntley 523 v. Huse 883 Hale v. Jewell 1475 v. New Jersey Steam Naviga- tion Co. 682, 689, 690, 713 v. Passmere 947 v. Rawson 620, 1074 v. Smith 626 v. Woods 310 Hales v. Freeman 884, 885 v. London & North West- ern Rail. Co. 6 85, 1062 Halhead v. Young 1027 Hall, ex parte 1054 Hall v. Bainbridge 110,1082 w.Betty 112,432,1058 v. Boston & Worcester R. R. Corp. 673, 712 u.Browne 1132 v. Burgess 512, 515 v. Cazenove 153, 160 v. Cole 783 v. Conder 626 v. Connecticut River Steam- boat Co. 726 v. Constant 779, 1111 v. Cook 1291 v. Corcoran 591, 1018, 1019 v. Costello 128, 129, 130 v. Davis 878 v. Dobie 370 u. Dyson 994 v. Farmer 92 v. Flockton 1123,1124 v. Freeman 55 v. Fuller 888, 932 v. Gardner 1089, 1363 v. Hadley 777 v. Hall 150, 1430, 1456, 1458 v. Hardy 1432, 1486 v. Hinks 567 v. Huntoon 308, 315 v. Jackson 1363 v. Janson 156 v. Johnson 858 o. Laver 1447 v. Leigh 321, 1347, 1349 v. London Brewery Co. 445 v. Marston 76, 77, 900, 912, 915, 1111,1375 v. Mullin 971 v. Newcomb 743 v. Obder 87 v. Palmer 980 v. Pecks 317 v. Potter 988 v. Reed 31 v. Renfro 689 v. Robinson 1364 v. Rupley 830, 855, 1091 r. Schultz 934 lxxxvi TABLE OF CASES. Hall v. Smallwood 1132 i'. Smith 889, 1355 v. Sturdivant 1482 v. Swansea, Mayor &o. of 912 v. Taylor 390 v. Tuttle 573 v. Warren 192, 1434, 1481 v. Weir 234, 246 v. Wilcox 145, 784 W.Williams 1178 v. Wright 795 Hallam v. Mumford 1354 Hallen v. Runder 420, 489, 494, 495 Halletu. Oakes 188 Hallett v. Mears 874 v. Wylie 514 Halliday v. Holgate 671 v. Ward ' 1250 Halloway v. Davis 424 Hallowell & Augusta Bank v. How- ard 1196 Hallows v. Fernie 1041 Halsa v. Halsa 92 Halsey v. Grant 1492, 1493 v. Whitney 346, 352, 1152 Halsted v. Schmelzel 343 Halwerson v. Cole 711 Ham v. Goodrich 436, 439, 798, 1451, 1452 Hamaker v. Eberly 36, 40 Hamblett v. Hamblett 208 Hambly v. Trott 906 Hambright p. Storer 644 Hambro v. Hull & London Fire Assurance Co. 385 Hamer p. Alexander 581 Hamersley v. Lambert 259 Hamerton v. Stead 452, 460, 461 Hamill v. Purvis 350, 351 Hamilton v. Aslin 947 v. Buckmaster 1499 v. Cunningham 295 p. Dunsford 1467 v. Eaton 259 v. Filer 1208 v. Grant 1479 o. Hamilton 408 p. Jones 1450 v. Lycoming Ins. Co. 18 v. McGuire 1119 v. Nickerson 142, 708 v. Russell 572 v. Shepherd 1235 v. Watson 772, 773 Hamlen v. Hamlen 1292 Hamlet v. Richardson 948 Hamlin v. Great Northern Rail. Co. 735, 795 Hamlin v. Great Southern Railway Co. 1326 v. Stephenson 194 Hammatt v. Emerson 653, 1045, 1141 Hammer v. McEldownev 1457 [■.Rochester " 1111,1114 Hammersley v. De Biel 1454, 1463 v. Knowles 1116 Hammett w. Linneman 539 Hammon v. Roll 346 Hammond v. Am. Ins. Co. 1066 v. Anderson 606 v. Buckmaster 1093 v. Corbett 211, 214 v. Hannin 436 i/. Hussey 667 v. Marsden 462, 464 v. Messenger 1360 v. Ridgley 149 v. Roll 1356 v. Teague 343 Hamond v. Holiday 805 Hamper, ex parte 327, 329, 331, 334 Hampton v. Edelen 1446 v. Levy 781 Hanbury v. Litchfield 1449, 1489 Hanchett v. Whitney 474 Hancke v. Hooper 808 Hancock v. Bryant 779 v. Byrne 279 v. Caffyn 266, 440, 744, 1415 u. Cook 1220 v. Fairfield 150 v. Herrick 245 p. Hodgson 310 v. Welsh 369 Hancock Bank v. Joy 232 Hand v. Baynes 685, 690, 702 v. Grant 414 Handford v. Palmer 81 Handley p. Chambers 439 Handly v. Call 937 Hands p. Slaney 196 Hanford v. McNair 291 Hank v. Crittenden 741 Hankey c. Cobb 1022 v. Hunter 914 Hanks v. M'Kee 634 Hanley v. Harlem R. R. Co. 729, 730 Hanna v. Harter 621 v. Mills 615 v. Pegg 906 v. Wilson 1446 Hannahan v. O'Reilly 494 Hannay v. Eve 583 v. Eyre 259 p. Thompson 1474 Hannibal R. R. Co. v. Swift 699 Hannum's Appeal 1249 TABLE OF CASES. lxxxvii Hanover r. Turner 246 Hansard v. Robinson 33, 63, 616, 1138, 1369 Hanslip v. Padwick 433, 435 Hanson v. Armitage 557, 562 v. Edgerly 639, 645, 1039, 1043,1044, 1049 t>. King 643 r. Meyer 523, 597, 606 v. Millett 60 v. Power 982 v. Stetson 51, 145 i). Stevenson 369 Hantz v. Sealy 902 Hapgood v. Batcheller 295, 296 Happiss v. Eskridge 1364 Harbin v. Levi 1279 Harbold v. Kuntz 1238 Harcourt v. Wyman 257 Hardcastle v. Nctherwood 1269 Harden v. Gordon 969, 1119 Hardesty c. Jones 759 Hardey ». Coe 1101, 1127 Hardie v. Grant 242, 249 Harding v. Alden 1178 v. Ambler 1150 v. Cooper 991, 993 v. Davies 1186, 1193 v. Foxcroft 320, 321, 324, 334 v. Hall 908 v. Hull 813 v. Jones 572 Hardingham v. Allen 905, 1188 Hardman v. Bellhouse 1126 v. Booth 534, 567 v. Wilcock 918 Hardres v. Prowd 809 Hardy v. -Akerly 462 v. Corlis 1276 v. Metzgar 535 v. Waters 205, 206, 223 Hare v. Cator 1397 v. Horton 491 v. Bickards 147, 761, 915, 953 v. Shearwood 141, 1459, 1463 Harford v. Gardener 59 v. Purrier 1484 Hargrave v. Dusenbury 831, 1106 Hargreave v. Smee 137, 138, 771 Hargreaves v. Hutchinson 533 v. Michell 1236 v. Parsons 759 v. Rothwell 283 v. Wright 1444 Harland v. Binks 577 Harley v. Greenwood 1169 v. King 1398 Harman v. Anderson 598, 606 v. Johnson 349 Harmer v. Keeve 421 v. Cornelius 8)3 v. Killing 215 Harmon v. Salmon Falls Manuf. Co. 117,840 Harmony o. Bingham 67, 1074, 1078, 1209 Harms v. Parsons 1431, 1434 Harnden u. Gordon 1119 Harnett v. Yielding 1434, 1467, 1473, 1483, 1485, 1490 Harney v. Owen 221 Harnor v. Groves 144, 651 Harnsberger v. Geiger 782 Harp v. Osgood 304,317 Harper v. Albany Mutual Fire Ins. Co. 120 v. Hampton v. Little 279 1131 , 280, 314 v. Ragan 303 v. Ross 1475 v. Williams 309 312, 313, 961 Harralson v. Dicking 990 Harrell u. Kelly v. Miller 1235 416 Han-hy v. Wall 1053, 1158 Harriman v. Gray 1388 v. Harriman 62, 63 Harrington v. Churchward 322 o. Dennie 1077 v. Du Chatel 991, 1056 v. Hoggart 426, 435 v. Kloprogge v. Long 112 997 v. Lyle v. Mc Shane 681 682 , 682, 689 v. Snyder 679,680, 681 v. Stratton 652, 653, 1094, 1141 v. Wheeler 1506 Harris v. Amery v. Birch 1467 162, 172 v. Blen 1065 u. Brooks 145 v. Carter 61 e. Clap v. Costar 957 728 v. Coulbourn 1390 v. Currier 838 v. Ferguson 891 v. Ferrand 1070 u. Gillingham 418, 500 v. Huntbach 759,877 v. Jaffrey v. James 1338 1304 v. Johnson 641 v. Johnston 150 v. Kemble 1463, 1474 lxxxviii TABLE OF CASES. Harris v. Knickerbocker 1458 v. Lee 240 v. Lincoln, Bishop of, 148 v. Lindsay 1140, 1379 v. Miller 419 c. Morris 245, 250 V. Mott 1440 v. Osbonrn 820 v. Porter 100, 101 v. Rand 690 v. Reynolds 1183 v. Rickett 159 v. Roof 995 v. Runnells 987, 1004 v. Saunders 3, 88 v. Smith 539 v. Tvler 1049 v. Wall 216, 221 D. "Watson 797 v. Williams 1084 Harrisonr. 279 v. Adcock 219 ... Allen 618, 1337 v. Blackburn 120 v. Cage 789, 791, 792, 793 v. Chilton 921 v. Clifton 221 v. Close 346, 1154, 1356 v. Courtauld 783 v. Edwards 133 v. Fane 195, 196 v. Hall 244 v. Handley 1239 v. Hannel 55 v. Harrison 1332 D. Heathorn 337, 1012 v. Jackson 99, 276, 352, 554 v. Keating 1509 v. Larg 803 v. Lemon 192 v. London, Brighton & South Coast Rail. Co. 693 u.Luke 617 v. Marshall 13G1 v. Paynter 950 v. Savage 581 v. Seymour 778 v. Sterry 352 v. Swift 795 v. Town 30 v. Turner 1276 v. Walker 938 v. Watson 61 v. Wright 1322 Harrod v. Barretto 1178 v. Benton 3 Harrold v. Whitaker 1341, 1343 Harrower v. Hutchinson 115, 1048 Hart's case 1465 Hart v. Alexander 362, 363, 1140, 1379 v. Allen 730 v. Biggs 895 v. Carpenter 538 v. Deamer 188 v. Dorman 1114 v. Hammett 114, 142, 152 v. Jones 698 v. Middleton 1064 „.Mills 82,617,1059 v. Minors 373 r. Nash 1110, 1255 v. Prater 197 v. Prendergast 1244, 1246, 1263 v. Sattley 562 v. Skinner 1191 v. Smith 1307 v. Stephens 224, 225, 1255, 1401, 1403, 1404 v. Tallmadge 579 v. Tyler 530, 614, 615 v. Windsor 471, 514 v. Withers 353 v. Woods 413 v. Wright 633, 634 Hartfield v. Roper 208 Hartford v. Jackson 679 Hartford & New Haven R. R. Co. v. Jackson 12 Hartley v. Cummings 22, 798, 842, 985 v. Harman 856 v. Hitchcock 803 v. McAnulty 24 v. Pehall 1390 v. Ponsonby 61 v. Price • 736 v. Rice 988 v. Russell 998 v. Tapley 529, 1362 v. Wharton 216, 221, 1292 Hartman v. Dowdel 226 Hartness v. Thompson 210, 222, 1353, 1354 Hartop, ex parte 308 v. Juckes 312 Hartshorne v. Watson 1227 Harvard College, Trustees of, v. Pace 77 Harvey, ex parte 775 Harvey v. Alexander 1120 v. Archbold 903 v. Brydges 487 v. Collett 1012 v. Crawford 957, 960 v. Crickett 360 v. Gibbons 65 v. Grabham 155, 1148 TABLE OF CASES. lxxxix Harvey v. Harvey 498, 499, 500 ii. Huggins 1336 v. Johnston 789 v. Kay 332, 340, 343 v. Olney 942 v. Owen 200 i). Troup 55 v. Turner 916 v. Varney 7 Harwood v. Haines 313 Haselinton v. Gill 570, 574 Haskell v. Adams 340 v. Brewer 1191 v. Greely 573 v. Mathews 1207 v. Rice 597 Hasket v. Wootan 736,1010 Haskins v. Lombard 1170 v. Miller 228 Haslam v. Sherwood 65 Hasleham v. Young 345,350 Haslett v. Burt 502 Hasloek v. Fergusson 581 Hassell v. Long 121, 785 Hasser v. Wallis 906, 937 Hassinger v. Diver 809 v. Solnes 760, 889 Hastelow v. Jackson 918, 919, 944 Hastie's case 1300 Hastie v. Coutourier 625, 1503 Hastings v. Bangor House Propri- etors 290, 291 v. Lovering 309, 634, 636, 637,640, 641 v. Pepper 681, 682, 689, 697, 711, 714 v. Whitley 984 v. Wilson 369 v. Wiswall 958, 959, 1172 Hastings, Marquis of, v. Thorley 1194 Haswell v. Hunt 610 Hatch v. Cobb 1421, 1424 v. Hatch 1167, 1168 v. Purcell 69 v. Smith 27G v. Taylor 284, 285, 286, 290, 294 Hatchell v. Odom 56 Hatchett v. Baddeley 256 v. Gibson 668 Hatfield v. Phillips 298, 299 Hathaway v. Haskell 1248 Hatsall v. Griffith 908, 1340, 1342, 1348, 1349 Hatten v. Robinson 899, 903 Hatzfield v. Gulden 995 Haughton v. Bayley 1343 Haughwout v. Murphy 1436 Haule p. Hemyng Haupfu. Howard 1070 318 Hause v. Judson G02, 607 Hauxhurst v. Hovey 953 Havelock v. Geddes 10,82, 1094 Haven v. Foster 129, 907, 934, 935, 952, 955 v. Hobbs 992 v. Low 572,573,669 Havens v. Hussey 352 v. Middleton 1060 Hawes v. Armstrong 761 v. Barker 25 c. Foster 552 v. Humble 620 v. Leader 575, 1037 v. Saunders 1359 v. Shaw 462 v. Smith 113 v. Watson 559 Hawken v. Bourne 339, 344 Hawker v. Hallewell 8 Hawkes v. Cottrell 821 v. Eastern Counties Rail- way Co.' 382, 3S5, 1472, 1478, 1480, 1495, 1504 v. Saunders 52 Hawkins v. Appleby 348 v. Berry 639, 640, 643 v. Bone 192 v. Campbell 1215 v. Chace 97, 98,411, 549 v. Coulthurst 1329 v. Craig 228 v. Harwood 818 v. Hoffman 698, 728 v. Holmes 1457 v. Hunt 1451 v. Johnson 952 v. Kemp 424 v. Maltby 746, 1426 v. Phytlnan 679 v. Ridenhour 954 v. Rutt 1106 v. Warre 166 Hawkshaw v. Parkins 353, 775 Hawley, in re 1505 Hawley v. Beverley 885, 1159 v. Cramer 278 v. Farrar 53, 60 v. Foote 1127, 1372 v. James 297 v. Moody 423 Hawralty v. Warren 1486 Hawse v. Crowe 566, 1137 Hawtayne v. Bourne 294 Hawthorn v. Hammond 678 Hay v. Ay ling 1007 v. Hinde 879 v. Ousterout 1191 v. Rogers 224 xc TABLE OF CASES. Haycraft n. Creasy 1 045 Hayden v. Cn.bot 1327 v. Hayward 800 v. Madison 71, 8 28 v. Smithville Manuf. Co. 858 Haydon v. Williams 1238, 1246, 1247, 1251 Hayes r. Acre 511 v. Stewart 1261 v. Thorn 1201 v. Western R. E. 857 Hayford r. Griddle 1491, 1493 Hayllar p. Sherwood 2G8 Hayraan v. Flewker 298 v. Neale 553 Hayne v. Malt by 9 v. Rollaston 233 Haynes v. Covington 378 c. Crutchfield 408 v. Hare 154, 1463 v. Thorn 31, 1210 Hays v. Cage 1216 r. Mouille 600, 607, 609 v. Eiddle CG9 >: Stone 292 Hayter v. Moat 1335 Hayward p. Cope 1456, 1472, 1473 u. Hague 1199 o. Haswc.U 444 v. Hayward 226 u. Leonard 823, 825, 826, 827, 828 v. Pilgrim Society 382 f. Scongall 620 !'. Young 98 1; Haywood v. Chambers 263 v. Cope 1434, 1476, 1477, 1495, 1504, 1507, 150S Hazard v. Day 588, 590. 592, 1019 v. Hazard 322, 326, 327 v. Irvin 639, KM 5 v. Loring 150, 151, 638, 1192, 1193 v. McFarland 232 v. New Ens;. Mar. Ins. Co. 12 v. Treadwell 279, 288 Hazeltine v. Siggers 541 Hazlebaker c. Eeeves 124 Heacoek p. Walker 535 Heads. Baldrey 68, 1003 ". Diggon 14 v. Goodwin 528 Heald v. Kenworthy 302, 315 Healey v. Story 311 Heanc v. Rogers 8 Heap v. Dobson 328 Heaphy v. Hill 1507 Heard v. Bowers 1067, 1317 v. Pilley 411 Heard v. Stamford 224, 226, 1402 Hearnu. Griffin 986 v. London & South West- ern Kail. Co. 721 v. Tomlin 453 Hearne r. Tenant 1068 Ilearsey v. Pruyn 911,912 H-art v. Chipman 821, 835, 900 Heath v. Chilton 376, 908, 1406 v. Freeland 834 v. Hall 45, 1358, 1366 v. Key 7 79 r. Randall 416,538 r. Sansom 355, 359, 362 i>. West 194, 218, 220 ,-. Whidden 1388, 1389, 1398 Heathcote v. Crookshanks 1126, 1381 v. North Stafford Rail- way Co. 1467 Heather v. O'Neill 1440 Heatherly v. Record 155 Heaton e. Angier 912, 1124, 1374. 1378, 1379 v. Hurlburt 743, 779 Hebb's case 18 Hebden v. Rutter 50, 789 Hebron v. Centre Harbor 1475 Heckard <>. Sayre 433, 434 Hedge v. Drew 5 Hedgley v. Holt 207, 856 Hedley v. Bainbridge 345, 349, 968 Heermance v. Vernoy 500, 626 ! Heff'elfinger v. Shute 1166 | Hefr'erman v. Adams 310 | Heffield i: Meadows 771, 772 Hegan p. Johnson 453,4 76 | Hegarty v. Milne 167 Herman v. Western E. R. Corp. 729, 730, 731 Heichew v. Hamilton 984 Heilbron c. Bissell 1111 Heilbut t: Nevill 354, 909 lleimstreet r. Howland 320 Heine v. Anderson 537 Heirn c. Carron 1127 Hellawell v. Eastwood 489, 501 llellier v. Silcox 513 Helling v. Lumley 1470, 1471 Hellings v. Gregory 810 p. Shaw 1241,1245 Helm v. Wilson 825 Helms v. Franciscus 1439 Helps v. Clayton 202, 885, 1401 v. Winterbottom 615, 1232 Helsham r. Langley 1469 Hemans u. Piceiotto 11S4 Hemenway v. Hcmenway 902,916 Homing v. Trenery 1163, 1164 v. Withers 652 TABLE OF CASES. XC1 Hemingway v. Fernandas 1447, 117-2 v. Hamilton 1042 Heminenway v. Bradford 902 r. Stone 1355 Hemming v. Perry 99, 183, 547, 548, - 761 Hemp v. Garland 1229, 1231 Hemphill v. Chenie 709 v. McClimans 58 Henback p. Rotlier 275 Henck v. Todhunter 813 Hendebourck i: Langton 39G, 398 Henderson <. Australasian Royal Mail Steam Navigation Co. " 384 Henderson v. Rarnewall 296, 554 <>. Eason 907 v. Hays 1483 v. Henderson 88, 1177, 1178 v. Hudson 318, 1476, 1495 v. Johnson 92 <>. Lauck 539 . Belknap's Estate 834 «.-. Borst 600, 779 o. Grew 1483 v. Malin 1165 Hemes v. Jamieson 957, 959 Herrin <.. Butters 100, 101, 842 Herring i\ Dorell 61 v. Happock 538 v. Langer 1140 t>. Willard 538 Hersey v. Giblett 1436, 1507 Hersfield <;. Adams 684 Heixjin v. Henderson 151, 638 Hertford, Marquis of. v. Boore 1506 Hertzog v. Plertzog 80, 436, 438, 797, 838 Hervey v. Liddiard 612 Heseltine v. Siggers 541 Hesketh v. Blanchard 323, 327, 329, 339, 340 v. Fawcett 1198 o. Jowring 212 Hesley r. Mears 686 Hess ;>. Fox 422 v. Heebie 1172 Hesse v. Stevenson 123, 266 Hesser v. Steiner 205 Hester v. Hooker 1435 Heth v. Wooldridge 1450 Hetherington v. Graham 248 Heugh v. London & North West- ern Rail. Co. 712 Hewes v. Doddridge 293, 298 v. Wiswell 1437 Hewet v. Painter 104 Hewison v. Guthrie 597 TABLE OF CASES. Hewitt v. Mantell 1334 Hil v. Allen 952 v. Wilcox 836 v. Anderson 208, 219, 221 Hewlins v. Shippam 419 v. Balls 631 Heylin v. Hastings 1262 v. Bellows 1225 Heyward u. Barnes 15 v. Buckley 1487 v. Cuthbert 214 a. Bull 781 Hey wood v. Hey wood 1208, 1213 v. Calvin 743 v. Perrine 111 , 117 1172 v. Chapman 213 Heyworth v. Hutchinson 517,649 v. Knight 552 Hibbert v. Fox 1201 v. Shee 641, 648 Hibblewhite v. M'Morine 584 Hick v. Keats 878 v. Phillips 1491 Hickerson v. Benson 736 Hickey v. Burt 1154 Hickman v. Cox 328 v. Hall 207 v. Machin 456 v. Reineking 355 Hickmot's case 1146 Hickok v. Buck 681 Hieks v. Burnham 71 v. Gregory 62, 980 v. Hicks 925 v. Minturn 805, 806 Hidson v. Barclay 1307 Hiern v. Carren 1128 v. Mill 283, 1449 Higdon ;;. Thomas 97, 303, 304, 411, 1120 Higgen's case ■ 1357 Higgins v. Breen 796 v. Brown 906 v. Chessman 555 v. Emmons 1202, 1206, 1207 v. Hopkins 336, 1263 v. M'Adam 949 v. Packard 834, 1140, 1379 v. Pitt 940, 1051, 1053 v. Samels 1473, 1483 c. Sargent 953, 954 v. Scott 1215 v. Senior 150, 305, 306, 309 Higginson v. Clowes 1033, 1461 v. Fabre 798 Higgons v. Burton 534 Higgs v. Assam Tea Co. 1282 u. Mortimer 1265 Highmore v. Primrose 962 Hight v. Ripley 543, 823 Hilberds v. Pettipierre 736 Hilbourn v. Fogg 463, 465 Hildebrand v. Eagle 148 Hildreth v. Conant 477 v. O'Brien 150 Hileman v. Wright 1459 Hilhouse v. Davis 953 ;>. Cumberland Valley Mut. Protection Co. 1484 v. Davis 86 o. De Rochemont 509 v. Dunham 591 v. Evans 103 v. Featherstonhaugh 808, 815 v. Fisher 433 v. Fiske 432, 1422 v. Fox 1007 v. Free-man 538, 539, 596 v. Grange 137 v. Gray 1048 v. Great Northern Railway Co. ' 1449 v. Green 849, 934, 1090, 1094 v. Henry 1232 v. Hobart 425, 430, 437, 438, 1058, 1062, 1071, 1206, 1485, 1509 v. Hooper 100, 101, 842 v. Hovey 1083 v. Humphreys 702 v. Hunt 318 v. Jamieson 101 u. Johnson 170 v. Kendall 1252 v. Keyes 222 v. Kitching 803 v. Millburn 800, 825, 829, 830, 831 t7. Morey 861 v. North 644 v. Packard 806 v. Perrott 85, 569, 938 v. Pine River Bank 7 v. Ramm 163, 171 v. Rcssegiere 429, "1436 v. Rewee 148, 152, 533, 921, 922, 923, 1800, 1093, 1095, 1172, 1213 v. Saunders 466 v. Smith 622, 1324 v. Spear 131 v. Sutherland 1111 v. Tucker 1347, 1348 v. Wentworth 490, 492, 493, 501 Hillard v. Richardson 680, 861, 862, 864 Hillary v. Ancles 1132 v. Morris 269 TABLE OF CASES. XC111 Hillary v. "Waller 1498 Hilliard e. Allen 1428 Hillman v. Wilcox 640, 643, 654 Hill Manuf . Co. v. Boston & Low- ell R. R. Corp. 705, 706, 708, 709 Hills v. Banister 311, 649 v. Barnes 1164, 1166, 1167 v. Croll 1467, 1504 v. Hills 925 v. Manchester & Salford Waterworks Co. 9 v. Mesnard 1109 u.Miller 1397 v. Mitson 994 v. Street 941, 943 v. Sughrue 1074 Hillsborough r. Deering 213 Hillyard c. Crabtree 850, 1081 Hillyer v. Bennett 208, 220 Hilton v. Barrow 1491 v. Burley 1111, 1114, 1117 v. Dinsmore 750, 756, 1373 v. Eckersley 983 w. Fowler 1337 v. Houghton 588, 591 v. Southwick 29 Himes v. Barnitz 1267 HinchcliHe v. Kinnoul, Earl of 139 Hinckley v. Arey 63, 550, 1103, 1127 v. Fowler 76, 77 v. Southgate 99, 100 Hind v. Holdship 76 Hinde v. Chamberlain 973, 992, 1001 v. Gray 984 v. Wliitehouse 520, 542, 553, 563, 565, 597, 1092 Hindley v. Emery 1422 v. Westmeath, Marquis of 250, 989 Hindsley v. Russell 374 Hinely v. Margarita 203, 215, 216 Hinesburg v. Sumner 594, 973, 992 Hingeston v. Kelly 798 Hingham v. Sprague 446 Hinkley v. Baxter 503 v. Mareau 134 Hinman v. Hapgood 809 Hinsdale v. Murray 893 Hinson v. Porter 1474 Hinton v. Dibbin 720, 721 v. Hinton 1436, 1437, 1438 v. Hudson 239, 241 Hipwell v. Knight 1068 Hirschfield v. S T mith 131 Hiscox v. Greenwood 28S Hitch v. Davis 60 Hitchcock i>. Coker 984, 985, 986 v. Giddins 405,517,625, 1030, 1031 v. Humphrey 771 Hitchcock v. Hunt 653 v. Litchfield 69 v. St. John 352, 360 v. Way Hitehin v. Groom 1006 141, 1026 Hitchings v. Ellis 322 u. Thompson Hite v. Goodman 463 314,386 v. Kendall 313 v. Long 1173 v. Wells 68, 69, 750 Hitson v. Barclay Hix v. Drury Hoadley v. M'Laine Hoag v. McGinnis 1308 1338 518, 545 1317 Hoagland v. Latourett 1436, 1446 v. Moore 830, 1092 Hoar v. Clute 826 Hoare c. Dawes 333, 1356 v. Graham 145 v. Kennie 1059, 1091 Hobart v. Lemon 255 v. Stone 1156 Hobday v. Peters Hobson v. Trevor 1442 1321, 1482 t>. Watson 821,822 Hoby v. Built c. Roebuck 820 420 Hochster v. De la Tour 619, 1067, 1079, 1080 Hocken v. Brown 780 Hocking v. Acraman 1296 Hodgdon v. Chase 1239 u. Hodgdon 954 v. Waldron 803 v. White 1258 Hodge v. Deaderick 1178 v. Vavasor 74 Hodgedon v. Hubbard 565, 566 Hodges v. Armstrong 880 v. Drakeford 175 u. Eastman 1359,1381 v. Green 422 v. Hall 749 v. Hodges 59, 87, 210, 245, 1180, 1337 v. Holland 1217 v. Hunt 216 v. King 1317 v. Litchfield, Earl of 435 v. Rutland & Burlington R. R. Co. 797 v. Saunders 46, 1387, 1400 v. Tennessee Ins. Co. 1474 Hodgkinson, ex parte 321 Hodgkinson v. Fletcher 242, 244 v. Wyatt 1270 Hodgkiss v. Hodge 794 Hodgman v. West Midland Rail. Co. 722 XC1V TABLE OF CASES. Hodgskins v. Bond 98 v. Hodge 790 v. Moulton 654 Hodgson v. Anderson 755, 913, 1377, 1378, 1379, 1380, 1381 v. Bowerbank 258 v. Davies 1092 v. Dexter 386 v. Johnson 420, 421 i; Le Bret 558 ,:. Loy 601, 602, G03, 609 v. Payson 804 v. Scarlett 835 v. Sidney 1415 b. Temple 583, 585 v. Wightman 1306 Hodnett v. Tnti'im 307 Hodsden v. Harridge 1070 Hodsdon r. AVilkins 749, 999 Hodsoll v. Stallebrass 1330 Hodson v. Terrill 919, 945, 1008 Hoe c. Sanborn 633 Hoffman r. Brown 1147 r. Carow 535 v. Felt 423,429 c. Hurlbert 782 v. Noble 567 v. Pitt 574 Hogan v. Jaques 9 o. Page 957 v. Shee 937 v. Short 303 Hoge v. Hoge 47 o. Pi 'tin 779 Ho^g v. Skeen 355 v. Snnilh 293 Hognart c. Scott 1480 H.iggarlli v. Taylor 1308 Hoirijins p. Beer'alt 474 r. Gordon 809, 1349 Hogins v. Plympton 151, 633, 638, 641, 646 Hoit r. Hodge 735 v. Underbill 216 Hoitt v. Ilolcomb 1035,1039 Holbird v. Anderson 575 Holbrook v. Allen 930 t'. Armstrong 82, 102, 422, 540 r. Baker 571, 573 v. Burt 1092 r. Lackey 1279 B.Murray 1178 v. Paddock 106 b. "Wight 276, 804 B. Wright 348 Holbrow v. AVilkins 781, 1144 Holcombe v. Hewson 635, 989 Holcroft b. Hoagins 365 Holden v. Crawford v. Dakin v. Hayn Holder v. Cope ('. Soulby Holderness p. Rankin Holding v. Barton „. Elliott 1050 630 1447 242 674 531 1458 150 v. Pigott 144, 157, 510 Hole v. Pearce 1433 Holford c. Dunnett 468 v. Hatch 1394, 1397 v. Pritcbard 512 Holiday v. Morgan 654 Holl v. Hadley 1225 ii. Harrison 786 Holland v. Eyre 15, 16 v. Hensley 419 v. Lea 776 ii. Russell 911 Holley v. Huggeford 804 Holliday /•. Atkinson 26, 59 Hollier c. E-\'rc 145 Hollingshead v. Mastier 828, 831 Hollingswortb v. Dow 80'2 u. Fry 106 Hollingworth v. Napier 555, 608 Hollis's case 1236 Hollis v. Claridge 802 v. Pool "" 475, 477 Hollister v. Nowlen 683, 684, 697, 702, 713, 715, 726, 727, 728, 730 Holloway v. Hampton 100 Holman (. JiiImimjii 583, 972, 975, 987 v. King 129,817 v. Lovnes 402 Holme v. Green 1258 v. Guppy 1087, 1275 B. Truant 1441 Holmes v. Bell 1161 v. Blo^g 200,204,216,217, 221, 401 B. Buckley 1385 v. Carman 310 v. Clarke 858 v. Dale 782 b. D'Camp 962 B. Doane 797 v. E. C. Railway Co. 1470 v. Higgins 324, 339, 340 b. Ilufkina 561 B. Jaques 1339 v. Kerrison 1072,1232 B. Knights 760 v. Love 1158 p. Mackrell 1248 v. Mackreth 1241 B. Mitchell 762 v. Onion 865 TABLE OF CASES. XCV Holmes v. Peck 816 c. Porter 349 v. Powell 1437 v. Robinson 1273 v. Sixsmith 179 v. Smith 324 v. Tremper 496, 499 v. United Ins. Co. 320, 321 v. Weed 745 v. Williamson 896 v. "Wood 228, 257 Holroyd v. Marshall 529 Hoist v. Pownal 602, 610 Holt v. Brien 233, 236, 242, 244 v. Ely ' 937 v. Kernodle 320,327 o. Quiinby 1273 v. Seholefield 1336 v. Ward 290 v. Ward, Clarencieux 23, 186, 222 Holtham v. Ryland 1077 Holton v. Smith 293 Holtzapffel v. Baker 514 Homan v. Skelton 1505 Homans v. Lombard 103 Home v. Rogers r 423 Homer v. Ashfbrd 7, 29, 982, 984 v, Barrett 947 v. Dana •, 32 v. Dorr 157 v. Fish " 946, $3,5 v. Geesman ° '5^72 v. Thwing 209, 681 v. Wallis 1161, 1163 v. Wood 1092, 1133 Homersham v. Wolverhampton Waterworks Co. 384' Homes i: Aery 947, 1180 v. Barker 440 v. Crane 571, 669 v. Dana 888 Homfray v. Scroope 1222 Hone v. Milner 600 Honey man v. Campbell 790 v. Marry att 16, 19, 1461 Honner v. Illinoii Central R. R. Co. 858 v. Morton 1404 Honore v. Colmesnil 319 v. Murray 960 Hooban v. Bidvyell 520 Hood v. Barrington, Lord 93 v. Fahnestoek 283 v. jSf'ew York & New Haven Railroad 706 v. North Eastern Railway Co. 1429 v. Oglander 1025, 1471, 1473, 1486 Hood v. Pimm 1506 u. Riley 1278 Hoofsmith v. Cope 536, 572 Hook v. Gay 1002 v. Gray 973 v. Stovall 655 v. Turner 409 Hookpayton v. Bussell 47 Hoop, The 1000 Hooper, ex parte 1452, 1453 in re 247 Hooper v. Brandage 1367 u. Lusby 345, 364 v. Marshall 1308 v. Stephens 1110, 1255 v. Treffrey 886 v. Wells 690 v. Woolmer 1072 Hoover v. Peters 635 v. Pierce 975 Hopcraft v. Keys 465 Hopcroft v. Hickman 1505 Hope v. Cust 350, 354 v. Hayley 528, 529 o. Hope 972, 1467 Hopewell v. De Pinna 255, 1294 Hopkins v. Appleby 651, 1092 v. Banks 1248 v. Forsyth 324 v. Grazebrook 437 v. Hopkins 1445 u.Lee 437,438,439,1176, 1509 c. Liswell 55 v. Logan 71, 72 v. Mehaffy 311, 314 v. Myall '• - 1440 v. Myers 1336 v. Prescott 1016 v. Smith 331, 1356 v. Tanqueray 408, 646 v. Thomas 1299 v. Ware 1105, 1108 v. Young 106, 1082 u. Yowell • 438, 439 Hopkinson v. Lee 139, 1341, 1342, 1345 v. Sears 950 v. Smith 811 Hopper v. Richmond 955 Hopping r. Quin 813 Hopson v. Boyd 188 Hopton, ex parte 367 Hopwood v. Whaley 374 Horford v. Wilson 801 Horn v. Baker 490, 500, 501 v. Fuller 26 v. Ion 1304 v. Ivy 380 XCV1 TABLE OF CASES. Horn r. Redfearn 172 Hornbuckle v. Hornbury 244 Hornby, ex parte 598 Hornby c. Lacy 274, 303, 305, 1096 Home c. Midland Railway Co. 1325 r. Wing-field 424 Horner e. FlintofF 1317 v. (i raves 985 ... Hunt 956 v. Marshall 187 v. Williams 1495 v. Zimmerman 7 Hornidge v. Wilson 374 Hornsby v. Lee 1405 Horsefall <>. Hey 505 v. Mather 74 v Mathew 466 Horsey v. Graham 413 Horsfall .>. Handley 910, 912 v. Kay 494 r. Thomas 1039, 1042 Horsley >: Bell 388 Hort r. Norton 35, 797. 824 Horton v. Bulfington 591, 976 v. Child 353 v. MeCarty 552 ■ . Riley " 940 c. Sayer 1183 v. Westminster Improve- ment Commissioners 1038 Horton's Appeal 360 Horwood i>. Buffer 246 c. Smith 535 Hosack v. Rogers 346, 1155, 1357 Hosea v. MeCrory 681, 683, 686 Hosford v. Nikols 960 Hosmer r. Clarke 665 Hotham v. East India Co. 106, 1084 Hotchkiss v. Hunt 538 Hotson v. Browne 1023 Houdlette i>. Tallman 523 Hough v. Bii-gc 453 v. Hunt 31 v. May 1105 v. Kawson 1085 ... Richardson 1039, 1043, 1045, 1236 Houghtaling v. Ball 1 28 u. Lewis 405 v. Marvin 280 Houghton v. Carpenter 657 i'. Hagar 951 !'. Houghton 103 v. Matthews 295,316,317 Houlditch ... Di.negall 3, 88, 1177 p. Milne 757 Houliston v. Smyth 245, 246 Houriet .'. Morris 260 House v. Barber 873 House v. Fort 640, 644, 654 v. House 838 v. Palmer 137 Houser v. Lamont 1458 o. Reynolds 219 Houston v. Latt'ee 418,419 „. Mills 837,1004 v. Robertson 1280 t'. Shindler 1119 Hovenden v. Annesley 1236 Hovey v. Blanchard 283, 291,292 v. Holcomb 1475 v. Magill 308, 310 v. Newton 143 v. Pitcher 309 v. Smith 492 v. Woodward 8 Hovil v. Pack 290, 291 How v. Kennett 515 Howard o. Bailey 140 v. Bail lie 283, 294 v. Barnard 1337 v. Brownhill 905, 967 v. Cadwalader 1093 v. Castle 406 v. Chapman 307, 1098 v. Doolittle 466 v. Edgell 30 v. Fessenden 493, 503 v. Gould 1043, 1044, 1049 v. Grover 808, 809 v. Hodges 981 v. Hoey 632, 633, 647 v. Hopkyns 1321, 1482, 1503 v Hudson 8 v. Lovegrove 746 v. Merriam 474, 477 v. Miner 1203, 1204, 1205 U.Mitchell 1176 v. Moore 1434 v. Oakes 228, 1402 v. Person 1323 ii. Ribbans 3 v. Shaw 453, 454 v. Shepherd 724, 1370 v. Sheward 287 v. Wilmington & Susq. R. R. Co. 155 v. Wood 948 v. Woodward 1320, 1321 Howarth v. Smith 1496, 1497 Howatt v. Davis 602 Howeut v. Bonscr 1228, 1251 Howden v. Haigh 1051 Howe v. Batchelder 415,416, 417,418, 419 v. Bradley 958, 959, 1086 t\ Conley 1493 v. Dewing 4, 5, 805, 806 TABLE OF CASES. XCV11 Howe v. Hunt 1423, 1471 v. Huntington 160, 424, 10G2, 1063, 1084, 1206 v. Newmarch 865, 866, 867, 868 v. Nickels 742, 743, 744 v. O'M alley 51 v. Palmer 560, 562 v. Richards 924 v. Russell 1475 v. Sheppard 1278 v. Synge 1002 v. Thayer 363 v. Thompson 1168, 1250, 1251 v. Wade 1107 v. Ward 889 Howell v. Batt 905,915 v. Brodie 328 v. Burnett 1225 v. Cowles 645 v. Klliott 572 i. George 1025, 1471, 1473, 1485, 1486 v. Harvey 319, 359 v. Jones 781 v. Mclvers 45 v. Young 1234 Howell and Trevanion's case 372 Howes v. Ball 599, 1363 v. Bigflow 227 v. Martin 756, 1379 v. Smith 1064 Howland v. Leach 106, 1082, 1084 v. Norris 1496 Hewlett !>. Haswell 207 v. Strickland 1274 Howley v. Knight 377 Howson v. Hancock 945 Hoxie v. Wright 1178 Hoyle v. Stowe 219, 222 Hoy t v. Byrnes 1187,1197 v. Story 1365 v. Wilkinson 962 Hubbard .,. Helden 849, 1081 v. Bliss 519 v. Bonestcel 790 v. Charlestown Branch Railroad Co. 951, 956 v. Coolidge 12, 29, 34, SO v. Cumminga 218, 219 v. Hickman 933 v. Knous 1186, 1199 v. Martin 934 Hubbell v. A r on Schoening 1506 Hubbert a. Borden 75, 149, 305 v. Sears 157 Huberu. Steiner 132, 133, 135 Hubert v. Nelson 330 v. Trelicrne 98, 549 t.. Turner 98 Huckley v. Baxter 493 Huckman v. Fernie 232, 233, 1048 Hudnal v. Wilder 572 Hudnall v. Scott 1291 Hudson ii. Baxendale 701, 712 v. Fawcett 950, 955 v. Granger 31 T v. Haslam 12S v. Johnson 1097 v. Plets 1364 v. Reel 1166 v. Robinson 344 v. Swift 425, 427, 921 v. Tenney 952 v. Weir * 541 Hudspeth v. Yarnold 166 Hudston v. Midland Rail. Co. 699 Huff v. McCauley 416, 419. v. Nickerson 22, 80, 88, 1399b v. Richardson 1240> Huffell v. Armistead 484; Huffman v. Hurlbert 779 Hughes c. Banks * 645. v. Breeds 182 v. Done ■ 594 v. Ellison 352 r. Graeme 314 v. Humphreys 587 v. Jones 148S, 14S9, 1492' v. Lenny 7,97, 800, v. Littlelield 740 u. Morlcy 1304 v. Morris 1453, 1467 v. Palmer 1092- v. Parker 1477 .... Statham 998 v. Thorp 965 v. Wells 1440, 1441 v. Wheeler 1128, 1135 Hulet v. Stratton 589, 1019- Hulings v. Craig 66, 1073 Hull v. Connolly 203 v. Little " 1223 v. Noble 1506 v. Odber 615 v. Peters 1191 v. Pickersgill 267 Hull of a New Ship, The 1365, Hulle v. Heightman 1080 Hulls v. Lea 812 Hulme v. Mugglestono 1285 v, Pardoe 659, 660, 661 v. Tenant 256 Hulmes v. Thorpe 1486 Hultain c. Munigle 481, 485 Hultz v.. Wright 141 Humble v. Hunter 150 v. Langston 745, 746, 1428 v.. Mitchell 183, 641 XCV111 TABLE OF CASES. Hume !■. Bolland 348, 904 v. Peploe 1066, 1190, 1199 v. Pocock 1059 r. Rundell 123 Humfrey o. Dale 20, 156, 158, 540 v. Gery 1227 Humphrey v. Douglas 208 v. Lucas 306 Humphreys v. Briant 171 v. Carvalho 14, 19 v. Comline 635, 640 u. Gwillow 1167 v. Hollis 1441, 1442 !'. Jones 1246, 1263 u. Magee 919 v. Pratt 628 v. Heed 682 v. Welling 994 Humphries v. Home 1460 Hundley v. "Webb 572 Hungerfoi-d v. Haviland 617 Hunneman i. Grapton 615, 1142 Hunt, ex jmrle 533 Hunt v. Adams 145, 740, 1168 v. Amidon 1388 r. Has;- 271 v. Bate 69 v. Bay State Co. 493 v. Bell 737, 998 i. Bloomer 61, 74 v. Boyd 1372 ! v. Bridgham 1248, 1258 v. Brown 740 v. Cleveland, The 692,711 r. Coe 14 53 v. De Blaquiere 237, 242, 243, 245, 246, 250 v. Douglas 297 v. Frost 126 v. Heeht 562 v. Hunt 989, 1469 v. Knickerbocker 582 v. Li\erniore 126, 147, 425, 1083 ,,. Mast-ey 221 v. Moore 1049 v. Mullanphy 501 t-. Nevers 952, 955 v. New York & Erie Rail- road 705 v. Otis Company 117, 840, 844 v. Peak 222, 790 v. Roberts 1451 i. Rousmanier 278, 280 v. Sanders 921 v. Silk 923, 924, 1093 e. Spaulding 1260 v. Swaine 39 v. Thompson 210 v. Toulmin 825 Hunt ii. United States 779 v. Wyman 20, 518, 540 Hunter, ex parte 1114 Hunter t'. Bales 423 v. Boucher 248, 249 v. Bowes 1335 v. Daniel 433, 1448, 1508 v. Debbin 663 v. General Mutual Ins. Co. 120 v. Gibbons 1235, 1236, 1309 i>. Giddings 97, 149, 411 v. Hudson River Iron & Machine Co. 283, 287 w. Hunt 887 v. Hunter 60 v. Hutchinson 523,524,525 v. Jameson 287 v. Miller 105, 310, 311, 315 a. Nockolds 1227 i: O'Neill 427 v. Osterhoudt 1113 v. Parker 291 v. Silvers 444 v. Stembvidge 292 v. Waldron 849 v. Wcls-h 903, 917 r. Wright 612 Hunting v. Sheldrake 1407 Huntington v. American Bank 1186, 1199 v. Finch 1164 v. Gilmore 60 v. Hall 626 v. Knox 149, 150, 303, 305, 309 ,'. Todd 70 v. Wilder 286 Huntley v. Bulwer 813 v. Sanderson 1231 Huntress, The 708 Huntress v. Patten 779 Hupe !■. Phelps 809 Hurd v. Blackmail 1118 v. Burgess 682 v. Curtis 1382, 1383 u. West 672 Hurlbert v. Pacific Ins. Co. 1281 Hurlburt v. Simpson 520 Hurley v. Baker 313,910 u. Brown 95, 148, 14 79, 1480 Hurry v. Mangles 598, 606 Hurst v. Great Western Rail. Co. 735 v. Holding 804 v. Hurst 473, 1318 v. Parker 1245 v. Rodney 1389 Husband .. Davis 1099 Huscombe v. Standing 272 Huse v. Alexander 1372 TABLE OF CASES. XC1X Huson v. Wallace 214, 224 | Hussey i: Criekitt 735, 1353 I v. Jewett 198, 215, 222 v. Man. & Mech. Bank 1111 v. Roquemore 432, 588 v. Roundtree 215 v. Thornton 538, 539, 59G Huston v. Cantril 278, 280 v. Young 160 Hutcheson v. Rlakeman 18 Hutchings v. Smith 226, 1404 Hutchins v. Bank of Tennessee 362 v. Gilchrist 524,537 v. Gilman 899, 1230 v. Hudson 362 v. Lims 362 ('.Marshall 537,572 v. Morris 664 v. Nichols 775 v. Olcott 1135 u. State Bank 297 Hutchinson t: Bowker 12, 116, 117 v. Brown 193, 1465 v. Gillespie 87, 88 v. Gilman 317 v. Guion 701 v. Heyworth 171, 1368, 1380, 1381, 1419 v. Humbert 871 v. Hunter 525 v. Moody 774, 781, 782 v. Morley 1043 v. Morritt ■ 1498 i'. Pettes 821 v. Pratt 1220 v. Reed 1269 v. Reid 1331 r de v. Goodnow 133 v. Johnson 221, 1247 v. Lathrop 522 v. Paige 301 v. Stone 228 v. Sinclair 1119 V. Smith 347 V. Sturges 1279 V. Sydney 1279 V. Wetmore 844, 847 v. York, Newcastle & Berwick Rail. Co. 857 Huthacher v. Harris 517 Huttman v. Bulnois 839, 840, 841,844, 847 Hutton v. Eyre 1357 v. Mansell 790 v. Rossiter 8 v. Towns 291 v. Ward 954 v. Warren 156, 157, 508 Huxley v. O'Conner 169 Hyatt v. Bovle 634, 642, 648 v. Griffiths 451 v. Hare 346 Hybart v. Parker 75 Hyde v. Edwards 1433 v. Trent & Mersey Naviga- tion 690, 701, 711 v. Wrench 16 Hyland v. Sherman 636 Hyndman v. Hyndman 1474 Hvne v. Dewdney 169 Hysinger v. Baltzell 1225 Hythe, Corporation of, v. East 1423 I. Ibbett v. Leaver 1290 Ibbotson v. Fenton 960 Ibbs v. Richardson 516 Ide v. Stanton 6, 91, 94, 97, 411, 545 Idle r. Thornton 620 Iggulden v. May 1389, 1432 Ikin w. Bradley 959 v. Brook 33 Ilderton v. Castrique 1306 Iley v. Frankenstein 618 Illinois Central R. R. Co. v. Cope- land 707 Illinois Central R. R. Co. v. Frank- enbnrg 690 Illinois &e. R. R. Co. p. Jewell 859 Ilsley v. Jewett 889, 893, 951, 953, 957, 1240, 1246, 1254, 1256, 1262 v. Stubbs 601, 604, 607, 608, 610 Imperial Gas Light Co. v. London Gas Light Co. 1235 Imperial Land Co., in re, Harris's case 18 Imperial Land Co., in re, Town- send's case 18 Imrie v. Castrique 1177, 1178, 1179 Inchbald v. Western &c. Coffee Co. 1059 Indianapolis R. R. Co. v. Love 858 Indian Chief, The 260 Ing v. Brown 1474 Ingalls v. Bills 683, 726, 729, 730, 731, 732 v. Brooks 705 v. Dennett 880 Inge w. Bond 626, 640 ii. Branch Bank of Mobile 7M2 Ingersoll d. Van Bokkelin 834 Ingham v. Crasy 141 Ingledew 11. Douglas • 205 Inglis v. Haigh 1219 v. Macdougall 368 Ingraham v. Hall 1101, 1172 TABLE OF CASES. Ingraham v. Hart 129 J. v. Wheeler 572 Ingram t\ Barnes 837 Jack v. McKee 798 v. Sherard 1220 Jackman v. Partridge 665 v. "Wyatt 978 Jacks v. Moore 1275 Inman v. Griswold 62, 1054 v. Smith 511 v. Mead 3 T 1 687 jacKson V- v. Stamp 447 v. Anderson 525 r. Wearing 1442 v. At-hton 1434 Innell v. Newman 1154 v. Attrill 594 Innes v. Stephenson 34G, 1099 v. Baker 916 Ins. Co. of IVnn. v. Smith 8 v. Bard 476 Ipstones Park &c. Co. c .Pattinson 1307 v. Blodgot 111, 136 Irby i'. Yining 303 c. Brown 379 Ireland v. Harris 109 r. Bryan 474 Ireson v. Pearman 819 v. Burchin 219 Irnham, Lord, c. Child 154, 1459, 1463, v. Burnbam 2G7 1481 t'. Camp 476 Irons v. Small piece 6, 60 v. Carpenter 194, 219 Irviu v. Bleakley 424, 427 v. Cator 141, 1463 i . Turnpike Co. 11G2 v. Catlin 413 Irvine v. Hanlon 898 v. Cobbiu 61, 71, 72, 467 v. Kirkpatrick 1042, 1473 v. Covert 542, 543 !'. .Stone 68, 420, 421, 1003 v. Cummins 801, 802 Irving r. Greenwood 793 < . Da\ison 1051, 1055 v. Manning 769, 1320 v. Delacroix 440 v. Motley 2 81, 566, 568 r. Ducliaire 770, 1056 v. Sparks 12G7 v. Kddy 465, 11)82 v. Thomas 631, 1049 v. Fairbank 1259 v. Veiteh 1256, 12G3 o. Forster 1417 r. Wilson 943 o. Fuller 476 Irwell r. Seliroeppel 511 ». Galloway 12 Isaac, ex parte 1301 i. Garnsey 1038 Isaac i'. Clark 664 v. Ham 1467 Isaacs c. Green 1300 v. Hotchkiss 1104 v. Royal Insurance Co. , 112 c. Hudson 136, 137 Isberg v. Bowden 306, 1098, 1281, u. Ireland 128 1283 c. Jacob 619, 1097 Ish i'. Crane 2 NO c. Jacoby 1165 Ishcrwood (•. Oldknow 1395 v. Johnson 470, 1222 v. Whitnior e 1185, 1192 v. Lawrence 137 Ishmael v. Parker 427 [.. Lever 1503 Isler n. Baker 360 1140, 1379 v. Lomas 1051 Israel v. Clark 730, 733 v. Longhead 476 v. Douglas 914, 1378, 13S0, v. Lowe 147, 547, 761 1381 (•. Magce 1297 v. Israel 169 v. Majo 216, 903 Ivans «. Draper 1347, 1348 v. Mvm 570 Ive v. Chester 196 f. Kichol 60 2, 603, 607, 609 Ivcns r. Butler 1401 v. Oglandcr 1458 Ives r. Davenport 29G v. Osborn 1165 v. Hazard 2i , 23, 96, 97, 411 ,.. Parks 229, 251, 258 v. Ogelsby 491 c . Peek 573 r. Sterling 51 v. Petric 1427 Iveson «. Conington 311 o. Pierce 422 Ivins v. Scjiooley 1261 v. Raynor 740, 750 Ivory r. Murphy 97, 411 v. Reeves 136 Tzert i'. Mountain 713 r. Robinson 321, 324 Izon o. Gorton 471, 514, 1074 v. Rogers 685 TABLE OF CASES. CI Jackson v. Rowland 465 v. Siielci'tt 1104 ». Slater 1104 t\ Spued 425 r. Stackhouse 121 v. Stewart 813 v. Stone 698 v. Stopherd 341, 343 v, Tilgliam 820 v. 'J'immernian 572, 573 v. Todd 222 c. Union Bank 297 v. Waldron 1388 v. Watts 556 r. Wetherill 640 v . Wheat 1222 r. Wood 1176 V. Woolley 1259 Jacob p. Adams 954 is. Lindsiy 179, 1120 Jacobs v. Featberstone 255 v. Hooker 706 v. Latonr 802 v. Locke 1488 r. Peterborough & Shirley Railroad 426, .1450, 1453 v. Pollard 748, 897, 999 ». Richards 402 v. Walton 919 Jacobson v. I^e Grange 798 Jacomb v. Harwood 1152 Jacques v. Todd 285 Jaffray v. Frebain 210, 1353 Jaggers v. Binnings 364 Jamaica v. Guilford 947 James v. Bi\by 796 v. Bostwick 114,353 v. Catherwood 134 v. Cavit . 946 v. Child 810 v. Cotton 877, 952, 1090 v. David 1122,1130 v. Dowell 1170 v. Emery 1341, 1342, 1343, 1345 v. Griffin 604, 605, 607 v. Isaac 1133 v. Johnson 1474 v. Le Roy 85, 797 v. Lichfield 1491, 1495 „-. M'Crcdie 295 v. Mnraan 30, 1323 v. ODriscoll 837 v. Patten 549 v. Richmond ■ 1219 v. Roberts 271 v. Shore 406 v . State Bank 1024, 14 73 v. Stewart 254 James i'. Vano 1185 v. Williams 761, 1133, 1134 Janes c. Buzzard 906 v. Wiiitbread 577 Jaques l\ Gould 468 v. Marquand 347, 357 v. Withy 939, 1077 Jarboc e. McAtee 1200 Jardine v. Paine 1 1 63 u.Payne 175,179,964 Jarmain v. Algar '54 v. Egglestone 435 Jarman v. Howard 1359 v. Wolloton 570 Jarrett >\ Kennedy 927 Jarvis v. Chappie 1281, 1283 v. Peck 982, 1001 v. Rogers 298, 668, 669, 671 Jay v. Warren 169 Jayne v. Hughes 153 Jeakes <>. White 420, 429, 1058 Jee v. Thurlow 249, 988 Jefferies v. Sh'ppard 949 Jefferson Co. Bank v. Chapin 1276 v. Chapman 1368 Jeffersonvillc R. R. Co. <;. Cleve- land 709, 710 Jeffery v. Stephens 1449 Jefferys v. Smith 326 Jeffor'd v. Ringgold 205, 208, 222 Jeffrey a. Bigelow 282 Jeffreys v. Gurr 70, 882, 883 v. Walter 1008 Jeffs v. Day 45 Jefts v. York 313, 314 Jcncks' c. Coleman 678,682,729 Jenkins v. Atkins 280 v. Betham 873 v. Blizard 165 v. Brewster 1368 v. Camp 831 v. Eldredge 440, 441, 1450, 1474 v. Frink 409 v. Gething 493 v. Hiles 1068 v. Hogg 407, 409, 413 v. Hutchinson 314 v. Pickett 682, 686 v. Reynolds 91, 761 v. Simpson 1094 v. Tucker 81, 888 Jenkinson v. Pepys 1461 Jenks v. Mathews 570 Jenkyns v. Brown 528 v. Usborae 602, 608 Jenner v. Morris 240 v. Smith 522, 524, 525, 526, 527 cu TABLE OF CASES. Jenness v. Emerson 213, 214 v. Lane 1124, 1143, 1144 !». Mount Hope Iron Co. 11, 12, 15, 20 v. Wendell 406, 532, 533, 614 Jenney v. Alden 214 Jenning r. Common-wealth 980 Jennings r. Blincorne 1485 v. Broughton 404.1036, 1040, 1476 v. Brown 53, 62, 980 v. Gage 1090 v. Gratz 633, 634, 6J2 v. Newan 375 v. Randall 209 v. Throgmortor* 582, 981 v. Whitaker 208 Jennisonj'. Graves 214 v. Stafford 26, 36 Jerome v. Seudder 1485 v. Whitney 139, 1061 Jervis v. Smith 1421, 1456, 1458 v. Tomkinson 1074 Jervoise r. Northumberland, Duke of 1058, 1496 r. Silk 213 Jesse v. Roy 1080 Jessel f. Williamsburg Ins. Co. 1359 Jessop i'. Lutwyehe 806 Jeudwine v. Agate 1321 v. Slade 640, 934 Jevens v. Harridge 258 Jevon y. Solly 1371 Jewell v. Schroeppel 828, 829, 831 Jewett v. Alton 296 v. Bacon 1210 v. Cornforth 890, 1162, 1350 ,: Davis 1439 v. Greene 1261 v. Hodgdon 1162 «. Warner 33 v. Warren 556 v. Weston 823, 825, 828 Jewry v. Busk 79, 800 Jinks v. Edward 445 Job t>. Collier 946 Jobson v. Forster 377 Jocelyn v. Hawkins 1064 Joel v. Moirison 866,868 John v. Baeon 731 v. Jenkins 444 Johnassohn j». Great Northern Rail. Co. 1090 v. Young 1092 Johns v. French 1382 v. Norris 1506 Johnson v. Alston 813 v. Ames Johnson v. Baird 1210 v. Barber 282, 866 v. Barratt 1307 v. Beardslee 1257, 1264 v. Beauchamp 454 o. Blasdale 314 v. Blenkinsopp 839, 840 v. Bloodgood 1367 v. Boone 1115 v. Brannan 1101 v. Brazier 1020 v. Buckner 1232 v. Clay 1185, 1191 v. Cleaves 1135, 1372 v. Daverne 1147 v. Dodge 98,99,411,554 e. Dodgson 98, 546, 549, 561, 612 v. Durant 956 v. Eason 1438 v. Eicke 952 t>. Farwell 1260 v. Foster 77 v. Gallagher 256, 1442 v. Goslett 926 v. Haggin 902 v. Harrison 259, 260 v. Hereford St. Peter 470, 1398 v. Hill 679 v. Hubbell 1453 v. Hudson 585, 1006 v. Hunt 530 v. Johnson 150,406,533,891, 898, 923, 936, 1080, 1095 ... Jones 286, 287, 291, 466 if. Lancaster 1185 v. Lander 225 v. Lansley 1008 v. Legard 1439, 1467 v. Lines 196, 203 v. Lucas 257, 963 v. Macdonald 537,620 v. Machielsen 135 v. McLane 20, 540 v. Marlborough, Duke of 1163, 1165 « . Midland Rail. Co. 684, 685 v. Miln 160 v. Nichols 740, 741 v. Ogilby 991 v. Osenton 1306, 1308 v. Packer 222 c. Peck 567 v. Pie 208 v. Pye 195 v. Pyles 1230 v. Reed 1082 i'. Richardson 676 TABLE OF CASES. cm Johnson v. Ronald 91 v. St. Peter's Hereford 470, 1398 v. Shrewsbury & Birming- ham Rail. Co. 1000, 1431, 1468,1480 v. Skafte 1299 v. Smart 1476, 1495 v. Smith 315, 1173 v. Stear 671 v. Stillinga 251 v. Stoddard 612 v. Stone 699 v. Thayer 1365, 1368 v. Thompson 779 v. Titus 653, 1093 v. Watson 102 v. Weed 150, 1119, 1135, 1154, 1379 v. Willey 572 p. Williams 247 r. Wingate 285, 291, 292 p. Wyatt 1423 v. Wygant 424, 425 Johnston v. Beard 425 v. Bingham 296 v. Bower 1170 v. Brannon 1127 v. Caulkins 1067 v. Cope 630 u. Fessler 17 v. Glancy 1453 v. Huddlestone 449, 461, 474, 485 v. Jones 1486 v. La Motte 409 v. Nicholls 17 v. Sumner 234, 242, 243, 244, 245, 250 v. Usborne 117, 15* 295 p. Wabash College 51 v. Warden 332 Joliff v. Bendall 655 Jolly v. Arbuthnot 462 v. Rees 232, 234, 235 v. Young 132, 1064 Jones, re 812 Jones v. iEtna Ins. Co. 133 v. Andover 1018 v. Arthur 1195, 1196 v. Ashburnham 39, 40 v. Barkley 424, 426, 939. 1082 v. Belt 406,1485 v. Berry 587 v. Blanton 787 u. Booth 351 v. Bowden 628, 636 v. Boyee 731 v. Bright 631, 643, 645 Jones v. Brinley 876 v. Broadhurst 1100, 1133 v. Brooke 747 v. Bullitt 1101 v. Bullock 781 v. Burton 1361 v. Carter 899, 900, 1357 v. Caswell 408 v. Cliff 1193 v. Conoway 1235 v. Cooper 751 v. Cowley 657 v. Darch 205,223 v. Downman 313 v. Dyke 435, 438 v. Edney 987, 1059 v. Evans 1488 v. Fennimore 1126 v. Fleming 878 w.Flint 417,418 v. Gardner 430 v. Gibbons 1062, 1090 v. Gilreath 1277 v. Green 1318, 1319 v. Gretton 1111 v. Harraden 342, 907 v. Harrison 926 v. Hart 860, 867 K. Herbert 1154 .. Hill 1304 ». Hoar 86, 906, 1186, 1199 v. Huggeford 574 v. Hughes 1254 v. Jackson 1486 I'. Jones 319, 453, 606, 840, 843, 848, 856, 1254 v. Judd 1077 v. Just 630, 632, 633, 634, 635, 657 v. Kearney 1485 v. Kilgore 1112, 1114 v. King 1409, 1410 v. Lee 1435 v. Lewis 775 v. Littledale 150, 309 v. M'Neil 1173 ... Marsh 481, 1084, 1331 p.Mills 477,484 v. Moore 1252, 1262 v. Morris 1267, 1307 v. Nanney 553, 805, 882 v. Newman 149 v. Nieholson 117 v. Norwich &c. Transporta- tion Co. 703, 710 v. Noy 360 v. Obenchain 4 p. Orchard 745 a. Osborn 674 CIV TABLE OF CASES. Jones v. Owen 106, 1200 Jouett v. Wagnon 1190 i'. Palmer 92 Joule v. Taylor 1322 v. Perkins 188, 192 Jourdain v. Wilson 1385, 1391 o. Phillips 74 6 Jowett v. Spencer 118, 1082 v. Phipps 479 Joy v. Hopkins 621 v. Pitcher 682 v. Sears 556 v. Provincial Ins. Co. 1047,1048 Joyce v. Sims 315 v. Randall 737 v. Swann 518, 519, 528 v. Reynolds 441, 512 Joyner v. Egremont 272. 942 ►•■ Rice 992 Joynes v.- Statham 1028, 1460 v. Richardson 224, 528 Judah r. Dyott 317 u. Rider 1252 e. M'Namee 836 v. Robbins 433 Judd v. Fulton 1065 v. Robinson 75, 77, 1345 v. Langdon 572 v. Ryde 439, 931 v. Lawrence 258 v. Ryder 183 Judkins v. Walker 200, 857 v. St. John's College 1087, 1275 Judson v. Bowden 1082 v. Sasser 24 v. Etheridge 802 v. Sawkins 1127 v. Gibbons 1354 v. Seott 1244 v. Wass 431, 921 v. Scriven 1173 v. Western R. R. Corp. 690, v. Shackleford 1421 695, 703, 705/706, 710 v. Shears 118, 452, 489 Julio v. Ingalls 321, 322 v. Shorter 7G0 Jungbluth c. Way 1138 v. Simpson 171 Junkins v. Simpson 1089 v.' Snelson 492 v. Stevens 1179 v. Stockett 213 K. v. Tanner 373 v. Taylor 432, 1479 Kabley v. Worcester G as Light Co. 440 v. Tifton 453 Kain i;. Old 154, 615 v. Turner 272 Kane, in re 213 v. Tyler 675 Kane u. Bloodgood 1235 v. Voorhees 683, 698, 713 v. Hood 425, 1082, 1086 v. Waite 6] , 988, 989, 990 v. Sanger 1398 v. Ward 1114 Kannen v. M'Mullcn 809 v. Warner 285 Karthaus v. Ferrer 351 v. Williams 7G2 Kase v. John G49, 650 o. Wilson 881 Kauffman's Appeal 1428 v. Witter 1366, 1367 Kay r. Allen 743 v. Wood 9, 440 v. Curd 54 5 v. Woodbury 823 v. De Pienne 254 v. Yates 1037, 1351 v. Groves 771 Jordan v. Dayton 836 v. Johnson 1422, 1428 v. Deaton 1478, 1480 Kaye v. Bolton 994 v. Fall River R. R. 683, 697, v. Brett 1098 698, 728 v. Dutton 46, 71, 72 v. James 601 , 602, 607, 804 v. Waghorn 156, 1389 v. Jones 1485 Kean v. Dufresne 1135, 1140 v. Norton 12, 16 Kearney v. Boston & Worcester R. v. Sawkins 141, 1460 R. Corp. 734 v. Wilkins 329 v. Tanner 902 Joseph v. Bigelow 160 v. Taylor 409 v. Knox 316, 722, 723 v. West Canada Gold &c. Josephs v. Pebrer 170, 805, 1013 Co. 1060 Josling v. Irvine 621 Kearon v. Pearson 1075 v. Kingsford 517, 633 Kearslake v. Morgan 616, 1128, 1134, Joslyn v. Irving 621 1379 v. Smith 1248, 1256 v. White 149 TABLE OF CASES. Kearsley v. Cole 775, 800 Keasley o. Codd 837 Kcat v. Allen 988 Keate v. Temple 3S6, 75:1 Keates v. Cadogan, Earl 1048 Keeble v. Black 1179 Keech v. Hall 454, 1396 Keegan r. Smith 244 v Western R. R. Co. 858 Kceler v. Neal 1 1 29 Keenan v. Brown 1092 Keene v. Sprague 214, :> 9 c. Thompson 931, 1108 Keene's Executors' case 385 Keep v. Goodrich 20, 21, 73 v. Wigsett 765 Keicdilev i". Goodman 812 Keightley i: Watson 139. 1341, 1342 Keir v. Leeman 991, 992, 993 Keith v. Pinkham 733 Kekewich v. Manning 4 Kelby v. Steel 891 Kell v. Nainby 331 v. Noakcs 427 Kellenbertrer v. Foresman 471 Keller i: Rhoades 76 Kelley u. Davis 211, 212, 213 <-. Steel 1350 Kellins r. Sbaw 1215 649, 652 1097 v. Ilickok 957 v. Kellogg 476 i,. Krauser 13G7 u. Larkin 985 v. Norris . 109 7 v. Richards 62, 1103, 1128 r. Robinson 1399 v. Stockton 743 w.Wood 1392,-1400 Kelly v. Garrett 1276 p. Hurlburt 329, 362, 363 ». Mills 117 r. New York 862, 864 e. Sanborn 1257 , . Solari 930 v. Sprout 85 v. Waite 477 a. Webster 412 Kelner v. Baxter 309 Kemble ii. Atkins 344, 346, 806, 1005 v. Fan-en 1315 ,. Kean 1431, 1433 Kemeyi v. Richards 355 Kemp v. Balls 1322 v. Burt 818 o. Coughtry 681, 682 v. Derrett 482 v. Finden 786, 891, 895 Kellogg v. De.nslow v. Gilbert Kcmpshnll v. Goodman 1237 (.', Stone 1421, 1424 Kempson v. Koylo 152, 551 v. Saunders 927 Kendall v. Almy 1435 u. Beckett 1422, 1445 v. Fitts 572 c. King 390 v. Lawrence 222 v. London & South West- ern Railway Co. 689, 702 Kendrick v. Lomax 1134 Kenjiaway r. Trelevan 21, 742 Kennebec Bank r. Cooper 764 v. Tuckerman 779 Kennedy v. Baltimore Ins. Co. 3.79 i. Brown 835 v. Gad 737 v. Lee 15, 18 v. M'Faden 340 v. Panama &c. Mail Co. 517, 1090 v. Ross 572 v. Umbaugh 141 , . Withers 965 v. Wright 873 Kennerley v. Nash 955 Kennerly <;. Martin 56 Kennet p. Milbank 1241, 1247 Kennett v. Chambers 971 Kenney v. Wexhain 1428, 1503 Kennon c. ]>ickens 958 Kenrig v. Eggleston 697 Kensington Bank v. Patton 1239, 1242 Kent i'. Gintner 622 v. Huskisson 562 v. Kent 100, 101, 102 v. Shuckard 676 v. Somervell 373 v. Thomas 1097 Kentucky Bank r. Combs 291 Ken worthy v. Schofield 99, 413, 542, 546, 552, 553 Kepner v. Kcefer 1018 Keppell v. Bailey 1382, 1383 Ker i'. Mountain 726 v. Osborne 900, 907 Kerns v. Piper 286, 868 Kerr v. Gilmore 1474 v. Lucas 47, 50 v. Pawson 1493 v. Piper 283 v. Shaw 92 v. Willan 715 Kerrison v. Cole 1002, 1003 Ketcham v. Clark 361, 362 Ketchell v. Burns 739 Ketchum v. Evertson 429 CV1 TABLE OF CASES. Ketcbum v. Protection Ins. Co. 1214 Ketsey't. case 217,401 Kettel v. Klliott 201 Kettle v. Harvey 828, S31 Key v. Cotesworth 605 (•. Duehesse de Pienne 1293 •'. Flint 1286 v. Parnham 308 «... Yather 811, 997 Keyes r. Elkins 1307 Keys v. Harwood 1091 u. Railways &c. 707 v. Williams 1360 Kcyse c. Powell 447, 1478 Kibbe v. Hamilton Mutual Fire Jns. Co. 282, 1036 Kidd (. King 295 r. Rawlinson 574 Kiddell v. Gurnard 654, 655 Kidder v. Barr 1451, 1453 .-. Blake 4 6 v. Hunt 81, 422, 921 Kidney v. Stoddard 581, 1042 Kidson ... Turner 265 Kidwellv r. Brand 1069 Kilby <•.' Wilson 358 .'. Wright 1307 Kilgour v. Miles 1066 Kilheffer v. Herr 1176 Kill .,. Hollister 1183 Killcrease v. Killcrease 226 .... Shelby 201 Killmore v. Howlett 416 Kilshaw v. Jukes 328 Kilvington e. Stevenson 1279 Kimball ... Blaisdell 1388 v. Brown 1220 e. Cunningham 648, 651, 656, 1093 v. Grover 1090 ^.Huntington 13C8 v. Keyes 212, 232, 239, 245, 246, 247 v. Lawson 1166 v. Rutland R. R. Co. 691, 695, 696 Kimberly v. Jennings 1472 ... Patchin 521 Kime v. Brooks 276 Kimpton v. Eve 1399 Kincaid v. School District No. 4 in Brunswick 1186 Kincheloe v. Holmes 742 Kinder p. Butterworth 1288 v. Shaw 298 King, ex parte 1307 King v. Alston 948 v. Bailey 572 v. Baldwin 779, 781 King v. Bardeau 404, 405. 406 o. Bellord 207 v. Boston 652 u. Boston & Worcester R. R. Co. 858 v. Brown 422, 436, 437, 854, 1323 r. Bryant 192 v. Cliace 1171 .-. Despard 753 v. Diehl 953 <. Fowler 1369 v. Gillett 795, 1148 v. Green 591, 976 ... Hamilton 1460 v. Hoare 1171,1173,1175,1352, 1354,1357 v. Hobbs 1357 . . Humphreys 672 ..Hunt 1161 ,-. Hutchins 150, 1378 .,". Indian Orchard Canal Co. 802 u. Jones 1409 .-. Kerr 1388 v. Kersev 795 v. King ' 878 <•. Lane 1223 v. Lenox 685, 700 v . Macon & Western R. R. 706 ..Martin 1142 !'. Meredith 612, 722 v. Pyle 438 o. Ruckman 93, 433, 1457, 1467 v. Savory 1180 ... Sears' 68, 69 ... Shepherd 711 i: Smith 364 ... Sow 838 v. Thorn 375, 376, 1410 v. Thompson 1456 u. Upton 36 ,-. Welcome 81, 100, 842, 852, 853 v. Wilson 759 King. The, ... Chillesford, Inhabi- tants of 215 v. Chipping Norton, In- habitants of 378 v. Crackenthorpe 871 c. Depardo 260 v. Haddenham, Inhabi- tants of 262 !'. Otley, Inhabitants of ' 490 v. St. John, Devizes 838 i'. Sontherton 270, 271 ... Watson 576 v. Webb 1012 TABLE OF CASES. evil Kingdom t'. Cox 1082 Kingdoti v. Nottle 1388, 1398, 1408, 1409 Kingham v. Robins 1186 Kingman v. Kelsie 313, 314 v. Spun- 320 Kingsbury v. Collins 505 v. Taylor 630, 654 Kingsford v. Ball 1438 v. Merry 567, 1035 v. Swinford 1310 Kingsley v. Holbrook 416, 417, 418 r. Wallis 1062, 1092, 1206 v. Young 1445, 1495 Kingston v. Kingston 1106 u. Mcintosh 953 v. Phelps 21 v. Preston 1082 Kingston's, Duchess of, ease 1176, 1177 Kingston-upon-Hull, Governor &c. of the Poor of, v. Peteh 15 Kington v. Kington 1191 Kinley v. Fitzpatrick 643 Kinlooh v. Savage 545, 546 Kinnerley v. Hossack 1278 Kinney v. Central R. R. Co. 691, 696, 727 1156 291, 550 475. 477 v. Ensign Kinnitz v. Surrey Kinsl ey Ames Kinsman v. Loomis Kintrea v. Preston Kintzing u. McElrath Kintzinger's Estate Kipling v. Turner Kirby v. Banister 1388 433 1049 226, 229 767 395, 1352 v. Boylston Market Associ- ation 467 v. Carr 360 v. Ingersoll 345, 352 v. Johnson 557, 558 v. Marlborough, Duke of 772 Kirchner v. Venus 156 Kirk v. Bell 384 v. Blurton 345 v. Gibbs 1074 v. Glover 1097 v. Richbourg 954 v. Striekwood ' 992 v. Taylor 462 Kirkham v. Martyr 754 Kirkland v. Bates 831 v. Oates 830 Kirkpatrick o. Smith 1119 v. Stainer 309, 315 v. Tattersall 263, 264 Kirkwood v. Thompson 403, 670 Kirtland v. Pounsett 453 Kirtland v. Snow 572 Kirton v. Braithwaite 1186, 1187, 1191 v. Elliott 201, 217 Kirwan v. Kirwan 362, 1 1 18, 1379 v. Latour 492 Kisch «. Central Rail. Co. of Vene- zuela 1041 Kist v. Atkinson 946 Kitchen v. Bartsch 1419 v. Breckley 1343 r. Campbell 1176 v. Lee 218 Kitchenman v. Skeel 1336 Kitchin v. Bartsch 266, 267 v. Buckley 1346 Kitson v. Julian 763 Kittredge v. Brown 1240 v. Woods 509 Klauber v. American Express Co. 689, 701 Kleine v. Catara 1087 Kline r. Baker 129,566 t Beebe 216, 217, 219 v. L'Amoureaux 203 Klock v. Richtmyer 292 c. Robinson 954 Knapp v. Abell 1 29 r. Alvord 281, 804 o. Crosby 1291 ... Curtis 668, 712 r. Hanford 373 p. Hobbs 900 v. McBride 360 i-. Maltby 1317,1323 v. Winchester 220 Knatchbull v. Grueber 1483, 1493, 1508 Kneeland v. Rogers 749, 999 Knibbs n. Hall 934 Knickerbocker v. Shepherd 870 Kniffin v. McConnell 795 Knight v. Abbott 1193 v. Barber 183 v. Bean 1074, 1078 v. Bennett 507 v. Bunn 1026 v. Burgess 1417 v. Cambers 1009 v. Clements 1163,1167 v. Cox 463 v. Crockford 97,428,549 v. Fitch 1009 v. Fox 863 c. Gravesend &c. Water- works Co. 88 v. Hipwell 1068 v. Hopper 565 v. Hughes 747, 894 cvm TABLE OF CASES. Knight r. Hunt 1051,1053 v. Maijoribanks 1503 v. New England Worsted Co. 148, 1082, 1083, 1086 !J. P. S. & P. R. Co. 707 i . Reese 051 p. Itushworlh 32 i>. Tax 8il4 Knights f. Quarles 1409, 1410 r. Wiffen 527 Knoll v. Harvey 1453 Knott i>. Farrcn 1241 Knoiver r. Enici's u 111 Knowles v. Atlantic & St. Law- rence It. It. Co. CG4 p. Haughlon 1466 r. Maitland 3S7, 916 v. Michel 495, 963, 907 Knowlton r. Plantation No. 4 80, 824 Knox v. Bushell 240 r. Flack 206 v. Martin 881 r. Whalley 969 Knye /•. Moore 9So Kohn p. Packard 7n9 Koone v. Miller 959 Kornegay p. White 649, G55 Kraft p. Kurtz 1202 Kramer p. Conk 67, 470, 514 Kraus p. Arnold 1194 Krause r. Dorrance 816 Kreider v. Lafl'erty 141 Krci s t. Scligman 583, 586 Kuglcr v. Wiseman 1087 Kurtz v. Cumiuings 97 Kyle p. Kavanagh 429, 1024, 1033 Kymtr v. Suwereropp 302, 602 Kynaston p. Shrewsbury, Mayor of 1334 L, Labeaumc «. Hill Lacey v. Lear Lackington v. Atherton i . Ciioinbes Lacon v. Merlins Lacy v. Kynaston c. McNeille v. Osbaldiston Ladd ii. Dillingham 587. i'. J>ynn p. Rogers 589, Ladies' Collegiate Institu French Ladue. p. Seymour La Farge p. Hester v. Jayne 1451, 86 487 598 1286 1453 1156 1381 843, 844 973, 1001 248 592, 1019 te i>. 32, 51 827, 828 784 1245 La Farge v. Kneeland 308, 912 v. Rickert 1203, 1204 Lafayette r. 344 Lafond p. Ruddock 1223 Laidlaw p. Organ 1049 Laidler p. Murlinson 531, 504 v. Elliott 817, 818 c. Hawkins 1208 Laing v. Chatham 1267, 1291 u. Colder 691, 726, 732 v. Fidgeon 632 v. Lee 92, 761 c. Meader 1122, 1195 Laird r. Pirn 426 p. Smith 424, 1506 Lake r. Argyll, Duke of 33 7 i". Morris 572 !'. Turner 870 Lakeman r. Pollard 849, 851, 1078 Lamalere ca v e 343 Lamb ?'. Attenborough 298 p. Buncc 87, 393 p. Clark 86, 900 1150, 1230 p. Crafts 15 1, 5 12, C37, 638 i . Lathrop : 201, 1210, 1211 r. Palk S65, 866 Lambert's case 345 Lambert r. Blackmail 1338 v. Taylor 1357 Lam burn v. Ciuden 851 Laniine p. Dorrell 906, 948 Lamond v. Davall 618 Lanioreaux p. Rolfe 1067 L'Amoreux v. Could 20, 21 Lamourieux c. Hewitt 739 Lampcn p. Kedgcwin 1175 Lamphicr v. Phipos 808 Lamp'cigh p. Braitlnvait 34, 59, 69, 70 Lampon v. Corke 121, 1118, 1151 Lamprell p. Guardians of Billeri- cay Union 382, 1114 Lampson r. Hobnrt 756, 757 Lancashire, p. Killingworth 1211 Lancaster p. De Traffbrd 1423, 1424 r. Eve 490 v. Frewer 396 v. Greaves 843 p. Harrison 1155 v. Walsh 12, 800 Lanchestcr r. Tricker 1353 Landman r. Entwistle, 799 Landon v. Humphrey 808 Lane, ex parte 758 Lane i: Applegate 1130 v. Bennett 1224 c. Burghart 759, 1294, 1373 v. Chandler 1281 p. Cook 1172 v. Cotton 683 TABLE OF CASES. C1X Lane p. Doty 1254 v. Drinkwatcr 1344, 1345, 1348 v. Dudley 287 v. Hill ' 962, 965 o. Ironmonger 231, 237 v. Jackson 611 v. Kirkwall 188 v. Mclieen 229, 1439 v. iS'ewdigate • 1468 v. Owings 1146, 1156 v. Shacklbrd 81, 82, 422, 423, 921 v. Wintlirop 1369 La Keuville v. Nourse 630, 631 Lanf'ear r. Sumner 536 Lang t'. Fiske 1359 ■-. Gale 1027, 1064 r. Mackenzie 1262 v. Nevill 761 v. Whidden 187 L&ngan v. Hcwott 350, 351 Langdale, ex parte 321 Langdale v. Parry 755, 780 Langden v. Stokes 1148 v. Wilson 170 Langdon r. Buell 609 v. Doud 8 ». Hughes 757, 758 v. Langdon 1101, 1103 i'. Paul 1168 .f. Woolfolk 1436, 1446 Lange v. Werk 982, 983, 984, 985 1001 Langfbrd v. Selmes 1478, 1492 Langfort i>. Tiler 565,590,1331 Langley <-. Berry 1368 v. Brown 721 v. Sturtevant 318, 916 Langridge v. Levy 635, 1038 Langstaffe o. Nicholson 91 Langstrotli v. Toulmin 316 Langton v. Higgins 52.6 c. Hughes 586 Langworthy e. Hockmore 239 v. Smith 783 Lanier v. Auld 645 1199 889 Lansing v. Cole 97, 411 v. Gaine 355, 361, 364 v. Lansing 730 v. McKillup 359 v. Turner 520 Lantry v. Parks 844, 845, 846 Lantz t: Prey 215, 838 Lanyon v. Davcy 1159 Lapham v. Barnes 880 v. Green 303, 304, 316 v. Whipple 99, 100, 101 v. Trigg Lansdale v. Cox Lapierre v. Mcintosh 258, 476 Laraway c. Perkins 439 Larkin t>. Marshall 1402 i/. ltosse, Lord 1493 Lassell v. Kced 509 Lassence e. Tierney 1439, 1440, 1454 Lassiter v. Cole . ^ v. Ward 654 Latch v. Wedlake 353 Latham, ex parte 1503 Latham e. Hyde 812 ... Lafone 1308 v. Morrow 407 v. Kutlcy 164 a, Stanbury 690 Latlirop v. Amherst Bank 996 p. Commercial Bank 379 Latimer v. Batson 574 Baton <•. King 200, 846, 857 La Touche v. La Touche 54 La Tounette v. Price 58, 263 v. Williams 225 Lattimore v. Garrard 71 v. Harsen 797 Lattin v. Davis 621, 049, 651, 1329 Laughan v. Be well 255 Laugher r. Pointer 680, 863, 864, 865 Laughlin r. Fairbanks 1368 p. Ferguson 572 Laughter's case 1074 Laughton i'. Taylor 1170 Lauiuan n. Young 834, 1179, 1184 Laurence e. Austin 1423 Laurent r. Vaughn 721 Laurie v. Douglas 682 Lausatt u. Lippincott 289, 295 Lausdale r. Shackleford 285 Laval r. Myers 736 Laveroni c. Drury 082 Laverty e. Burr 350, 351, 355 v. Hall 1507 v. Moore 1485 Law v. East India Co. 784 r. Hod son 587 v. Jackson 1185, 1190 ». Nunn 912 r. Sutherland 1113 v. Urlwin 1497 v. Wilkin 211 Lawall r. Under 155 Lawes v. Purser 626 Lawler r. Kershaw 325 Lawrence v. Bayard 1361 v. Blatchford 127 v. Chase 437 i: Clark 340, 342 u. Dale 100, 345, 1092 v. Dole 424, 430, 1058 v. Dougherty 1208 ex TABLE OF CASES. Lawrence v. Fox 76 v. Gifford 1185 v. Gullifer 838, 848 v. Kidder 984, 985 v. Knowles 1416 v. McArter 206 ,). MeCalmont 29, 104, 121, 739, 740 v. McGregor 685 ... Miller 465 ,.. Minturn 722, 724 v. Potts 821 v. Stevens 660 <,'. Stonington Bank 297 v. Taylor 99, 2 75, 276, 292, 346, 353 v. Walmsley 7 73 v. Winona & St. Peter R. R. Co. 703, 710 Lawri-nson v. Butler 1490 Lawson v. Crofts 372 v. Lovejoy 216, 218 c. Townes 743 Lawton v. Gordon 7 u. Hickman 1013 v. Lawton 499, 500, 501 v. Maner 743 <-. Newland 878 v. Salmon 501 Laycock v. Pickles 961, 970 v. Tuffnell 126 7 Layer v. Nelson 786 Layfield t>. 358 Layng c. Stewart 313 Laythoarp n. Bryant 5, 23, 91, 97 La) ton v. Pearce 1061 Lazarus v. Commonwealth Ins. Co. 7 7 v. Cowie 1100 Lazell v. Lazell 1119 v. Miller 928 v. Pinniek 188,192 Lazier i>. Westcott 1177 Lea r. Guice 329 Leach v. Fobes 47, 1426 v. Forney 1437 v. Mullett 403 v. Thomas 467, 497, 1336 Loader c. Barry 1293 c. Homewood 496 Leadley r. Evans 762 Leaf v. Gibbs ' 773 Leake v. Young 1160 Lean r. Srhutz 251, 253 Leaper u. Tatton 220, 1245, 1261, 1265 Learned v. Bellows 1150, 1151 Lcaroyd v. Robinson 298, 300 Leather v. Simpson 1044 Leather Cloth Co. u. Lorsont 985, 1431 Leatherdale v. Sweepstone 1193 Leavitt v. Blatchford 973, 1001, 1002 v. Fletcher 67, 468, 470, 471, 514 v. Palmer 973 v. Peck 331, 358 v. Savage 783 Leballister v. Nash 1211 Lebel r. Tucker 128, 131 Lecat v. Favel 92, 761 Lechmere v. Brasier 1479 v. Fletcher 1175, 1240, 1249, 1354 v. Hawkins 1274 Leek v. Maestaer 673 Leckey r. jMcUermott 535 Le Conteur v. London & South Western Rail. Co. 719 Ledyard v. Manning 424 Lee i'. Alexander 1168 v. Armstrong 1404 v. Ashbrook 828 v. Ayrton 820 v. Bayes 534, 535 v. Coleshill 1016 v. Dean 437 v. Uick 743 v. Everest 875 «. Fontaine 290 v. Griffin 542, 543, 616, 823, 834 v. Jones 773 v. Kilburn 520, 600 v. Kirby 30, 1435, 1461, 1463, 1470, 1473, 1502 v. Lashbrooke 319 e. Lee 407, 798 r. Lester 1270 v. Maddox 74 v. Mann 426 r. Merrett 904, 931 v. Mugu;eridge 52, 55, 56 v. Nixon 1.552, 1354 v. Oppenheimer 62,1101,1102, 1124 ti. Page 1183 v. Risdon 495, 501, 616 v. Russell 439 v. Shore 569 v. Smith 447 r. Stuart 934 v. Templeton 934 Leech ... Baldwin 724 Leedom c. Phillips 539 Leeds r. Burrows 495, 508 v. Cheetham 470, 514 v. Cook 794 u. Vail 232, 240 i. Wrio-ht 605 TABLE OF CASES. CXI Leeds & Tkirsk Rail. Co. v. Fearn- ley Leeming v. Smith Leerey v. Goodson Lees, ex parte Lees v. Whitcomb v. Whiteley Lefferson v. Dallas Lefflngwell v. Elliott Lefils v. Sim 202 115 903 267 21, 842 1368 82, 423, 1453 658, 1329 196 632, 633 1449, 1464 485 1147 226, 229 563 236, 612 1274 472 Leflore v. Justice Legal v. Miller Legg v. Benson v. Che:. Ralston Lennon p. Napper Lenox v. Prout Lent v. Padelford 29, 986, 809 538 874 1320 536 1398 751 1323 1266, 1273 1276 397 491, 501 29, 36 962 283 283 315 131 1483 779 290, 411, 1070 310, Leominster Canal Co. v. Shrews- bury & Hereford Railway Co. 1433 Leonard v. Baker " 575 v. Bates 6 v. Dyer 1077, 1080, 1082, 1084 v. Leonard 189 v. Morgan 1093 v. New York &c. Tel. Co. 18, 684, 685, 725 v. Pitney 1235 v. Vredenburgh 62, 92, 740, 757, 761 v. Wildes 960 Le Page v. M'Crea 1128 Lepard v. Vernon 278 Leptley v. Mills 1189 Lerned v. Johns 149, 305 u. Wannemacher 6, 94, 96, 98, 546 Leroux v. Brown 133, 422, 852, 928 Le Roy v. Beard 286, 287, 293, 295 v. Crowninshield 133, 1216, 1218 v. Johnson 358, 361 Le Sage v. Coussmaker 798 Lesenbury i>. Evans 745 Lesher v.' Wabash Nav. Co. 861,862 Lesley v. Rosson 413 Leslie v. Pounds 861, 864 Lester v. Bartlett 422 v. Foxcroft 1452 v. Garland 1064 «. Graham 630 v. Lazarus 1276 v. Webb 276 v. Zachary 6 Letcher v. Bank of the Common- wealth 775 v. Woodson 439 Lcthbridge v. Mytton 1323 Lett v. Morris ' 1360 Leuty v. Hillas 1446, 1473 Levant r. Parks 303 Leverick v. Meigs 276, 285, 295, 303 Leverson (•. Lane 355 Le Veux v. Berkeley 1222 Levi v. Langridge 960 v. Lewis 515, 516 Levin v. Smith 539 Levy v. Bank of United States 932 v. Cadet 1237, 1248 v. Cohen . 18 v. Green 617, 1059 v. Langridge 1038 v. Merrill 92 v. Wallis 572 v. Yates 1003 Lewers v. Shaftesbury, Earl of 1422 CX11 TABLE OF CASES. Lewes v. Morgan 953 v. Ridge 1398 Lewin v. Guest- 406, 1494 Lewis v. Bannister 273 r. Bond 1509 v. Braithwaitc 1478 v. Brewster 744 V. Campbell 881, 1389 v. Clifton 1089 v. Collard 813 v. Cooke 1338 1400 v. Cosgrave 420, 654, 1140 o. Culberston 1279 v. Davison 978 <•. Denny 378 v. Galena &c. R. R. Co. 712 v. Great Western Rail. Co. GII3 u. Hammond 940 v. Houston 1235 o. Jones 153, 151, 472, 781, 1042, 1051, 1051, 1101, 1103, 1158 v. Knox 990 v. I.eehmere, Lord 14 28 i. Lee 252, 256 v. Lewis 8H2, 952 v. Littlefield 208, 209, 735, 945 v. Lyman . 509 r. Lyster 1136 v. M'Kee 13 71 <.. M'Lemore 1045 v. Marshall 142, 150 e. Nicholson 126, 312, 314 i. Owen 1302 r. Paine 1168 t.Pead 180 v . Peake 055, 058, 1328 v. Reed 281 v. Reilly 364 i . Samuel 815 V- Stevenson 573 ii. Tlmteher 143, 157 v. Trickey 797 v. United States 1363 i\ A\Meh 5S2, 5S4, 585, 974 a. Western R. R. Corp. 710 i. Whitleinorc 572 ii. Willis 402 Lexington r. Clark 68 Leyland i. Rlingworth 1477 Lihbey r. Tolford 466, 514 Lieey v. Lieey 1301, 1366 Lielificld Union, Guardians of, v. Green 774 Liehtenhein v. Boston & Prov. R. K. Co. 712 Lichthen'aler r. Thompson 78-1 Lickbarrow c. Mason 277, 601, G. Kain 644 Lidderdale !•. Montrose 1364 v. Robinson 891 Liddiard, ex parte 363 Liddiard v. Gale 163 Lidlow ii. Wilmot 245, 246 Liefehild's ease 149 Liford's case 498 Liggct r. Smilh 825 Lightbody r. Xorth Am. Ins. Co. 279 " c. Ontario Bank 1107 Lightburn r. Cooper 649 Lightfoot i . Creed 883 c. Heron 1436, 1462, 1465 Lightly ?■. Cloustou »85, 906, 948 Like c. Thompson 730,919 Lilley .. Barnsley S02 i'. Elwin 839, 843, 848 v. Hayes 915 o. Hewitt 1070, 1073 Lillie r. Lvnh 1509 Lilly v. Ewer 115 c.Huvs 75,77 r. Hodges . 1345 Lillywhite r. Devereux 557 Limbnrger r. Westeott 696 Limerick Academy r. Davis 51 Lime Rock Bank r. Maconiber 378 r. Plimpton 307 Lincoln r. Battelle 133, 278 r. S. & L. S. R. R. Co. 1329 c. Wilder 136 v. Wright 1450, 1451, 1458, 1474 Lincoln, Earl of, i. Arcedeikne 1490 Lindeman c. Desborough 1046. 104 7, % 1048 Lindley r. Laeey 159 r. Lukin 439 Lindon v. Hooper 906, 907, 943, 947 .!. Sharp 573 Lindsay <>. Lynch 1454, 1457 Lindsey o. Gordon 1U87, 1092 " c. Sfevens 1111 Lindus r. Bradwell 232, 233 v. Melrose 138, 312 Line i. Stephenson 90 Lineham r. Cotter 1492 Lines r. Smith 626 Lingan r, Henderson 1120 Lingard v. Bromley 895 Lingley r. Cutler 1317 Link r. Clemmens OSS, 1019, 1066 Linley r. Bonsor 1241 Linn v. Linn 839 !-. ltuse 67 Linnegar r. Ilodd 38 Linningdale r. Livingston 825, 831 Linscott c. Mclntire 101, 422 Linton r. Butts 555 TABLE OF CASES. CX111 Linton v. Smith 860, 861 Liotard v. Graves 951, 959 Lipscombe v. Holmes 835 Litt v. Cowley 603, 610, 611 v. Martin dale 937 Litterel v. St. John 540 Little v. Blunt 1225, 1229, 1230, 1232, 1237, 1250, 1251 o. Dawson 798 v. Fosset 681 v. Gibbs 881 o. Hobbs 62 v. Manin 422 v. Mercer 841 c. Nabb 761 v. Oldaker 836 v. Paddleford 431 v. Palister 446 v. Pearson 453 v. Poole 587, 1004, 1005 Littledale v. Lonsdale 861 Littlefield v. Getchell 1389 v. Shee 52,56 v. Smith 1368 v. Storey 1368 v. Tinsley 1497 v. Winslow 1 06 Littlejohn, ex parte 421 Littlejohn v. Jones UH2 Littler v. Holland 156 Littlewood v. Caldwell 359 Livermore' v. Hershell 1173 Liverpool Adelphi Loan Association u. Fairhurst 2.'»2 Liverpool, Corporation of, v. Wright 991 Liverpool Marine Credit Co. v. Hunter • 132 Liverpool Waterworks Co. o. At- kinson 762 Liversidge v. Broadbent 912, 1365, 1377 Livingston v. Acketron 798 v. Hastie 355 U.Peru Iron Co. 1474,1503 v. Ralh" 1183 v. Rogers 20, 21, 69, 73 v. RQOsevelt 332, 345, 355, 358 v. Wootan 919 Lizardi v. Cohen 131 Llewellyn' v. Jersey, Earl of 122 v. Llewellyn 36 Lloyd v. Archbowle . 1277 v. Ashby 345 v. Ashley 329 v. Brewster 566, 568 v. Collett 1068 v. Crisp 67 v. Farrell 430 Lloyd v. Freshfield 347, 357 ... Guibert 131, 1074, 1077 v. Johnson 582, 981 v. Lee 40 v. Leisenring 736 o. Lloyd 1463 v. Oliver 137 (>. Sandilands 926 v. Wilkes 1508 Load v. Green 565, 566, 569 Lobdell v. Baker 277, 281, 282, 284, 285, 286,289,627,1201 v. Hopkins 1202, 1203, 1206 Lock v. Furze 436, 437, 445 v. Miller 1273 v. Wight 1399 Locke v. Stearns 281, 348 ». United States 779, 783 Locke Company v. Wor. & Nash. R. R. Co. 704, 705 Locket v. Nicklin 92, 153 Lockhart v. Banvard , 1349 v. Eaves 1240 Lockridge v. Foster 1044 Lockwood v. Barnes 100, 101, 422 p. Comstock 364 v. Ewer 670 v. Lockwood 471 c.Nash . 1171 r. Salter 227, 1405 v. Thomas 232 Lodcr r. Kc-kulc 624 Lodge v. Dicas 1139, 1140, 1146 Loeschman v. Machin 534, 680 v. Wil!ian»s 602, 605 Lofield's case 137 Loft v. Dennis 514 Logan v. Austin 1129 v. Caffrey 1080, 1172 o. Hall 470, 1328 v. Le Mesurier 518, 519, 522 v.Mason 1117 v. Matthews 46, 589, 680 v. Pontchartrain R. R. Co. 713, 728 v. Wienholt 1482 Lokerson v. Still well 7 Lomas v. Bradshaw 341 Lomax v. Arding 843 v. Bailey 828 v. Pendleton 880 Lombard w.'Cheever 1363 v. Pease 1242 Lomi v. Tucker 643 London Assurance Co. v. Buckle 780 London & Birmingham Ry. Co. v. Winter 1028, 1478 London & Brighton Railway Co. v. L. & S. W. Railway Co. 146G CX1V TABLE OF GASES. London, Brighton & South Coast Rail. Co. v. Goodwin 706, 76S London Dock Co. o. Sinnott 381, 382 London Gas Light Co. u. Nicholls 381, 1353 London Loan & Discount Co. v. Drake 495, 496 London & North Western Rail. Co. v. Bartlett 707 London & North Western Rail. Co. v. Durham 691 London & North Western Rail. Co. u. West 463,465 Long v. Bowling 1442 v. Carter 350 v. Colburn 149, 275, 311, 313, 314 v. Constant 1359 v. Fitzsimmons 466 v. Fletcher 1492 v. Greville 1260 v. Hartwell 9,411, 440 v. Hickinbottom 626 v. Hicks 644 v. Home 726, 730 v. Olsi 813 c Preston 657 v. White 1439 Longbottom v. Berry 489 Longchamp v. Kenny 899, 903 Longdill c. Jones 871, 949 Longley v. Griggs 894 Longman v. Gallini 679 v. Pol» 354 Longmeid v. Holliday 635, 1038 Lonomore v. Rogers 811 Lonoridge v. Dorville 29, 46, 47, 49 Longstaffe v. Mcagoe 491 Longworth v. Conwell 282, 285 r. Hunt 1235 Lonsdale v. Brown 40, 41, 69, 1263 v . Littledale 866 Loo v. Burdens 372 Loomis v. Loomis 1367 v. Marshall 321, 327 o. Newhall 53, 68, 69, 420, 740, 756, 759, 1003 v. Pulver 946 v. Wadhams 437 v. Wainwright 518 Loonie v. Oldtield 805 Loosemore v. Radford 1324 Loraine v. Cartwright 287 Lord v. Belknap 847, 1084, 1086, 1091 v. Bigelow 462 v. Goddard 1044 v. Jones 802 Lord v. Midland Rail. Co. 693 u. New York, Mayor &c. of 954 v. Shaler 1239 v. Staples 880 v. Stephens 1509 c-. Underdunck 1456 v. Wheeler 673, 832, 833, 1074, 1078 Loring v. Boston 12, 15 v. Brackett 346, 1154 v. Colder 713 c Cooke 1194, 1195 v. Gurney 615 v. Mansfield 946 Lorymer v. Smith 648 Lothian v. Henderson 934 Loudon o. Tiffany 1274 Louisville Man. Co. o. Welch 743, 744, 769, 775, 777 Louisville &c. R. R. Co. v. Letson 378 v. Robin- son 859 Lovatt v. Hamilton 620 Love v. Hackett 1246 c. Oldham 653 Lovegrove v. London, Brighton & South Coast Rail. Co. 858 Lovejoy v. Whipple 588, 591, 1017, 1018 Lovell v. Hicks 1462, 1474 c. Walker 1401 Lovelock v. Franklyn 428, 444. 1067, 1073 v. King 824 Loveridge v. Cooper 1367, 1419 Lovet i. Price 838 Lovett v. Hobbs 683, 684, 687 Lovic c. Crowder 571 Low c Barchard 30 v. Blodgett 141 v. Connecticut & Passumpsic R. It 292 i'. Howard 55 v. Ives 529 u. Marshall 424 v. Perkins 296 v. Smart 893 v. Treadwell 1470 Lowe i).' Beckwith 743 v. Griffith 201, 204 v. London & North West^ ern Rail. Co. 513 U..MOS8 690, 702, 711 v. Peers 988, 1318, 1320 v. Peskett 1157 v. Ross 515 v. Steele 1322 v. Swift 1435 v. Winters 420 TABLE OF CASES. CXV Lowell v. Boston & Lowell R. R. Co. 585, 748, 861, 862, 868, 897, 944, 974, 977 v. Parkhurst 149 v. Spaulding 467 Lowell Wire Pence Co. v. Sar- gent 707 Lower v. Winters 99 Lowndes v. Lane 1036 v. Stamford, Earl 1184 Lowrey v. Morrell 1107 Lowry v. Adams 147, 742, 743, 769 v. Bourdieu 934, 939, 944 v. Burney 1000 v. Duflerin 96, 546 v. Guildford 819 v. Huston 224 v. Mehaffey 97,411 v. Pinson 570 Lowther v. Carlton 283 v. Lowther 1501 Loyd v. Malone 409 Lozano v. Janson 117 Lubbock v. Potts 946 v. Tribe 881, 962 Lucas v. Bank of Darien 361 v. Bank of Georgia 383 v. Beach 166, 344 v. Beale 1347 v. Bristow 156 v. De la Cour 330 v. Dorrian 555 v. Godwin 826, 1086 v. James 15, 1484 v. Mitchell 1028 v. Nichols 531 v. Novisilieski 856,1104 v. Wilkinson 1096 v. Worswick 930 Luce v. Izod 1034, 1309, 1311 Lnckett v. Bohannon 902 v. Williamson 1451, 1458, 1485 Lucketts v. Townsend 670, 671 Luckie v. Bushby 1269 Lucy's case 29, 46 Lucy v. Bundy 81, 422, 538, 1090, 1092, 1093 v. Levington 1398, 1409 v. Mouflet 648 Ludin v. Marie 568 Ludlow v. Bowne 601, 612, 722 v. Simond 776, 781 Ludlow, Mayor of, v. Charlton 378, 380, 381 Ludwick v. Huntzinger 1496 Ludwig v. Fuller 536, 537 v. Meyre 702, 708 Lufkin v. Mayall 200 Lukey v. O'Donnel 1502 Lumley v. Hodgson 515 v. Hudson 1135 v. Wagner 1432, 1433, 1470 Lund v. Lund 1475 Lundie v. Robertson 54 Lungworthy v. Hockmore 239 Lunn v. Thornton 60, 528 Lunt ^..Stevens 346, 1154, 1356 Lupin v. Marie 539, 596 Luqueer v. Prosser 739 Lury v. Pearson 1183 Luscomb v. Ballard 375 Lush i/. Druse 960 Lusk v. Smith 364 Luttrell v. Hazen 866 Lyall v. Edwards 1034, 1150 Lyddal v. Weston 1497, 1499 Lyde v. Barnard 581 v. Russell 505 Lyell v. Sanbourn 284 Lygo v. Newbold 733 Lyle v. Murray 1230 Lyles v. Lyles 1208 Lyman v. Clark 121 v. Edwards 947 v. Ellery 226 u. United States Bank 1135 Lynch v. Bogy 797 v. Clarke 400 v. Commonwealth 813, 817 t7. Deviar 952 Lynde v. Budd 218 Lyne v. Watts 1307 Lynn v. Bruce 1122, 1126 Lyon v. Annable 81, 404, 921 v. Bertram 649, 923, 1093 v. Jerome 297 v. King 100, 101 v. Lamb 62 v. Marclay 1239 v. Martin 868 v. Mells 721 v. Reed 460, 461 v. Smith 674 v. Strong 588,589, 1018 v. Summers 1358 Lyons v. Barnes 618 v. De Pass 535 Lythu. Ault 1129, 1140 Lythgoe v. Vernon 906 Lytton v. Great Northern Rail- way Co. 1429, 1468 M. Maber v. Maber Maberley v. Robins 1255 95.4 CXV1 TABLE OF CASES. Maberley v. Sheppard 556, 557, 559, 564 M'Adam v. Walker 191 Mc Adams v. Cotes 1042 M' Allen p. Churchill 973, 987, 1001 MeAllester v. Sprague 1357 McAllister v. Hoffman 736 u. Keab 951, 1094, 1141 v. Smith . 138 Mc Arthur v. Ladd 1067 v. Seaforth, Lord 1332 v. Sears 681, 682, 689, 711 McAuley c. Bellinger 51 McAusland v. Pundt 465 McAvoy c. Long 103 Macbeath v. Aldimand 386 McBlair v. (iibbes 897 M'Brain v. Fortune 309 McBridew. Gray 1240 v. Hagan 346, 351 r. McClelland 572 Macbryde v. Weekes 1037, 1069, 1508 McCabe v. Morehead 626 M'Call p. Brock 689, 711 v. Taylor 1339 M'Calmont i: Rankin 1449, 1467 M'Cancc p. London & North West- ern Rail. Co. 722 McCandless v. McWha 808 McCandlish v. Newman 518, 520 McCaro^her c. Whieldon 1469 MeCarren <•. McNully 827, 831, 833 McCarron v. Cassidy 1474 McCarthy v. Colvin 1381 c Decaix 241 v. Goold 1 304 v. Wolfe 674 D. Young 669 McCartv v. Murray 222 " p. N. Y. &Erie R. R. Co. 710, 712 v. Osborne 823 McCaskle v. Amarine 1437 M'Clallen v. Adams 808, 836 McCleary v. Kent 861 McClees v. Burt 132 McClelland p. Snider 823 McClenaghan v. Brock 868 McClin p. Craham 492 McClintick v. Cummins 272 McClung v. Kcllcy 522 McClure i>. Hammond 682 v. McClure 1431 r. Pyatt 844 v. Richardson 682 McColl v. < Hiver 342 M'Comb v. Wright 97, 275, 413 M'Combs v. M'Kennan 600 M'Connell v. Brillhart 96, 97 MeConnell v. Hall 1201, 1210, 1211 v. Hector 260 M'Connico v. Curzen 295 'M'Cord v. Wright 309 McCormick v. Connolly 823 v. Garnett 129 v. McCormick 249 M'Coy v. Artcher 626 v. Huffman 200 v. McKowen 865 M'Crady v. Brisbane 1400 M'Crea v. Purmort 548, 1119 McCreight v. Aiken 187, 189 McCrillis v. Bartlett ' 188, 193 u. How 198, 206 M'Culloch v. Eagle Ins. Co. 14, 18 v. Gregory 1445, 1499 v. Somerville 352, 353 M'Cullock v. Dawes 1241,1258 v. Girard 141 McCullough v. Morse 382 p. Wainwright 148 McCullum v. Gourlay 919 McCurry o. Hooper 189 M'Cutchen v. M'Gahay 234, 241, 242, 246, 249, 250 M'Daniel v. Ferrell 1334 v. Moody 491 i'. Strohecker 1040 v. Terrell 1322 M'Daniels v. Bank of Rutland 1129 v. Cornwell 255 u. Lapham 1102, 1128, 1129 v. Robinson 675 M'Doal v. Yeomans 739 Macdonald v. Black 278 v. Edgerton 675, 676 v. Gray 51 v. Hewett 522 v. Hodge 621 r. Longbottom 152 v. McLeod 1474 v. Magruder 894 u. Pickett 1111 v. Ramsay 262 v. Simpson 673 u. Snelling 635 McDonnell v. Dunlap 437 McDougal ». Calef 744 M'Dowall v. Boyd 1139 u. Wood 255 McDowel v. Chambers 91, 540 McDowell o. Blackstone Canal Co. 1113 v. M'Cullough 1104 v. Simms 408 v. Tyson 1278 M'Elmoyle v. Cohen 133 TABLE OF CASES. CXVll McElroy v. Nashua & Lowell R. R. Corp. 727, 729 M'Evoy v. Baltimore 1135 M'Ewan v. Smith 597 McEwen v. Montgomery Co. Mut. Ins. Co. 284 M'Fadden v. Jenkyns 1360 McFarland v. Chase 47 7 v. Crary 348,816,817,1071 v. Mathis 35 v. Newman 639, 640 v. Wheeler 1271 Maefarlane v. Giannacopulo 302 v. Norris 1266 M'Farson's Appeal 97 M'Gahay u s Williams 232, 247, 249, 250 M'Gahee v. Greer 1265 McGatrick v. Mason 858 McGee v. Bost 43 McGeorge v. Egan 234 McGibbeny v. Burmaster 1430, 1455 M'Gill v. Rowand 684, 698, 699 v. Woodward 194 McGillivray v. Simson 1274 McGinn v. Shaeffer 222 M'Gowan v. Smith 1367 MeGowin v. Remington 1425 McGrann v. North Lebanon R. R. Co. 155 M'Grath v. Boston 440, 442, 443 v. Robertson 255 M'Gregor v. Graves 1336 v. Penn 643 Macgregor v. Dover & Deal Rail. Co. 65, 385 McGruder v. Stewart 224 M'Gunnagle v. Thornton 511 M'Hard v. Whetcroft 1190 Macheath v. Cooke 279 McHenry c. Duffield 314 v. R. R. Co. 709 Machir v. Moore 736 Machu v. London & South Western Rail. Co. 720 M'Hreath v. Margetson 887 Mcllvaine v. Wilkins 951 Melnniffe v. Wheelock 1187 M'Intire v. Oliver 1 249 M'Intosh v. Great Western Rail. Co. 833 v. M. C. Railway Co. 1083 M'Intyre v. Belcher 89, 1059 v. Brown 722 v. Miller 1359 v. Parks 583 M'lver v. Humble 326, 331, 363 v. Richardson 14 McJilton v. Love 1171 Mack v. Bragg 423, 844, 852, 854 M'Kane v. Bonner 1337 Mackay o. Bloodgood 353 M'Kay v. Rutherford 318 M'Kean !'. M'lvor 708 McKechnie v. Sterling 1484 McKee v. Brandon 438, 439 v. Garcelon 556 v. Judd 1358, 1364 v. Manice 736,919,920,945 v. Nelson 793 McKenna v. George 787 M'Kenney v. Waller 779 Mackenzie v. Cox 673 v. Hancock 658 u. Mackenzie 1051 v. Nevius 297, 315, 1116 v. Pooley 834 v. Stevens 211 M'Keon v. Caherty 736, 945 M'Kercher v. Hawley 476 Mackey v. Grey 1291 Mackie v. Caines 1001 M'Killip v. M'Killip 1201 M'Kim v. Odom 1178 McKinley v. AVatkins 14, 46 M'Kinnan c. Sterrett 956 M'Kinnell i\ Robinson 878, 896, 945, 1004, 1009 M'Kinney v. Alvis 1359, 1380 v. Brights 355 v. Neil . 714, 726, 729, 730, 732 <•. Springer 1215 M'Kinstry ». Pearsall 295 Mackintosh v. Trotter 489, 495 McKissick v. McKissick 136 Mackley r. Pattenden 370 Macklin v. Waterhouse 689, 713 McKnight v. Dunlop 599, 952 v. Hogg 199 McKown v. Whftmbre 1235 Mackreath v. Margetson 887 M'Lachlan v. Evans 902, 903 M'Laren v. Baxter 1306 McLaughlin v. Nash 493, 494 v. Pryor 865, 866 Maclea i\ Sutherland 345 MacLean v. Dunn 98, 290, 291, 552, 554, 600 M'Lees v. Hale 101 Maclellan v. Albee 1246 v. Cumberland Bank 1156, 1357 i>. Howard 1199 M'Lelland v. Crofton 880, 1219, 1220 McMahan v. Sloan 668 i'. Stewart 25 M'Mahon o. Fawcett 893 oxvm TABLE OF CASES. M'Mahon v. Spangler 141 M'Manus v. Bark 1149 v. Crickett 282, 866, 868 v. Lancashire & York- shire Rail. Co. 691, 692 M'Mechan v. Griffin 1437 M'Menomy v. Ferrers 1375 M'Micken v. Beauchamp 1165, 1167 M'Millan v. Michigan Southern R. R. Co. 696, 705 v. Vanderlip 844, 848 M'Minn v. Phipps 409 v, Richmond 206 McMullen v. Kelso 849, 1080 v. Riley 420 McMurray v. Spicer 96, 1507 v. The State 1202 MeMui-ty v. Frank 353 McNabb v. Lockhart 665 McNair v. Compton 436, 437 v. Schwartz 453 M'Namara v. Fisher 254 v. Williams 1442 McNaughton v. Conkling 741 v. Moore 280 v. Norris 1220 MeNeal v. Emerson 416 McNeil v. Magee 1434 Macneilege v. Holloway 224, 1400 McNeill v. Cahill 1055 v. Perchard 949 v. Reid 52, 67, 93, 319, 1087 McNitt v. Clark 1061 Macomber v. Parker 143, 522, 524, 525 Macon v. Sheppard 32 McPherson v. Cheadell 836 o. Rees 53, 58 M' Queen v. Farquhar 1496, 1499 McQuinney v. Hitchcock 572 McRae v. Purmort 1239 Macrory v. Scott 754 Macrow v. Great Western Rail- way Co. 698 M'ShaneVGill 1055 McTavish v. Carroll 1114 M'Teer v. Ferguson 1264 Mactier v. Frith 18 McTyer v. Steele 151, 305 McWhorter v. McMahan 99 Mc Williams v. Martin 113 Mc Willie v. Kirkpatrick 80, 263 Macy v. De Wolf 324 v. Wheeling Ins. Co. 83, 142, 143 Maddeford v. Austwick 1042 Maddera v. Smith 921 Maddon v. White 201 Maddox v. Miller 195 Madeley v. Booth 1491 Madison v. Chinn 1425 v. Wallace 902 Mad River & Lake Erie R. R. Co. v. Barber 858 Mad River & Lake Erie R. R. Co. v. Fulton 699 Magaw v. Lambert 514 Magdalena Steam Navigation Co. re 385 Magee i\ Atkinson 150, 305, 309, 311 u. Carmack 1107 v. Magee 1240 Magennis v. Fallon 1024, 1492, 1508 Maggs v. Ames 740 Maghee v. Kellogg 947 v. O'Neill 1256 Magill v. Hinsdale 149, 310, 311, 511 v. Merrie 362 Magnane v, Archbold 1321 Magnay v. Edwards 1342 v. Knight 177 v. Monger 871 Magoffin v. Holt 434 Magruder v. Stewart 228, 257 Maguire v. O'Reilly 1449 Mahan v. Mahan " 27, 59 Mahana v. Blunt 1453 Mahew v. Eames 283 Mahoney v. Kekule 315 Mahurin v. Bickford 953, 1177 v. Harding 654 Maigley v. Haner 25 Maile e. Mann 872 Mainprice v. Westley 409, 410 Mainwaring v. Brandon 1328 v, Leslie 242 v. Newman 339, 343 Mair !•. Glennie 324 u. Himalaya Tea Co. 1432, 1468 Makarell v. Bachelor 196 Makeham v. Crow 1270 Makepeace v. Harvard College 62, 126, 147, 1054 Makin i<. Watkinson 471 Makinley v. M'Gregor 232, 233, 234, 239 Malcolm v. Fullarton 947 v. Scott 914, 915, 1365 Maiden v. Fyson 435 Male v. Roberts 129, 198 Malevere v. Redshaw 1002 Malins v. Brown 1453 v. Freeman 1024, 1092, 1465, 1473 Malkin v. Vickerstaff 394, 1353 Mallalieu v. Hodgson 885, 1042, 1051, 1159 Mallam v. Arden 1062 TABLE OF CASES. cxix Mallan v. May 29,110,113,984,985, 987 v. RadlofT 635 Mallett v. Bateman 750 v. Thompson 1054 Mailing Union v. Graham 765 Mallory v. Gillett 756 v. Grant 1204 v. Willis 672 Malone v. Boston & Worcester R. R. Corp. 696 Malpas v. London & South West- ern Rail. Co. 159 Malpica v. M'Kown 697 Maltby v. Carstairs 932 Manby v. Long 380 v. Scott 188, 198, 209, 232, 233, 234, 239, 250 Manchester Iron Manuf. Co. v. Sweeting 779 Mander, re 261 Mandeville v. Welch 1365, 1380 !>. Wilson 1219 Maney v. Killough 572 Mangles v. Dixon 45, 1282 Manley v. Boycott 146, 784 Mann v. Birchard 691 v. Dunn 1506 v. Falcon 1474 v. Lent 1141 v. Lovejoy 452 v. Marsh 1110 v. Pearson 405 v. Stephens 1390 v. Whitbeck 127 Manning v. Bailey 427 v. Cox 1154 v. Flight 307 v. Lunn 474, 1195 v. Phelps 1227 v. Shotwell 779 v. Wells 674,676 o. Wheeler 1241 Manrow v. Durham 740 Mansel v. White 1454 Mansell v. Burredge 1355 Manser v. Back 1025, 1459, 1461 Mansfield v. Mansfield 280 Manson v. Felton 193, 1249 Manuf. & Mech. Bank v. Gore 348, 936, 937 i). Winship 344, 349 Many v. Beekman Iron Co. 112 Mapes v. Sydney 35 > 40 Maples v. Pepper 1298 Marble v. Keyes 1170,1172,1173 v. Moore 522 v. Worcester 734 March v. Ward Marchant v. Evans Marchesseau v. Chaffee Marchington v. Vernon Marcom v. Bloxam Marcy v. Darling v. Sun Ins. Co. Mardall v. Thelluson Marden i>. Babcock Mare v. Charles v. Underhill Marfield v. Goodhue Margetson v. Wright Mariners' Bank v. Abbott Marion v. McRea Mark v. Clark Market overt, case of Markham v. Brown v. Gonaston v. Jones Markland v. Crump Markle v. Hatfield Marks v. Hapgood v. Lahee v. Pell v. Robinson Marlett v. Jackman Marlon v. Smith Marlow v. Pitfield v. Thompson Maronon v. Foot Marquand v. Hipper 1355 836 621 76 1310 500 117 1279 571 310 1308 281 644 781 952 59 535 678, 729 1161 332 1400 931, 1106 584, 587 802 1474 155 278, 361 1058 198, 207 163 1225 761 o. N.'t. Man. Co. 359,360 Marriott v. Brune 943 v. Hampton 936, 946 v. Lister 876 Marryat v. Broderick 919 Marryatt v. Marryatt 125 Marry atts v. White 1115 Marsack v. Webber 896 Marsden i\ Goode 1196 Marsh v. Davies 395 v. Day 770 v. Gold 352, 998, 999 r. Hutchinson 253, 254 v. Hyde 6, 94, 555, 562, 563 v. Keating 348, 937 v. Laforest 1096 v. Pedder 1098, 1139 v. Pier 1176 v. Putnam 1302 v. Rainsford 73 v. Richards 823 v. Rulesson 844 v. Tyler 1323 v. Wood 21 Marshall v. Baker 155 v. Baltimore & Ohio R. R. Co. 995 cxx TABLE OF CASKS. Marshall v. Birkenshaw 40 v. Broadhurst 376, 1412 v. Collett 1462 v. Craig 1087 v. Dalliber 1239 v. Dudley 954 v. Ferguson 117 u. Gougler 1168 v. Haney 438, 439 v. Hicks '872 v. Lynn 155 v. Peck 635 v. Poole 614, 952, 955, 1331 v. Powell 165 v. Rutton 251, 252 v. Smith 1353, 1356 v. Stewart 858 v. York, Newcastle & Berwick Rail. Co. 724 Marson ir. Short 181 Marsteller v. McClean 1 223 Marston u. Allen 1035 t>. Baldwin 539 v. Boynton 877, 1136 v. Gale 419 v. Knight 649 v. Marston 60 Martendale v. Follett 1163 Martin v. Anderson 1265 v. Andrews 874, 927 ». Archer 1261 o. Baker 1388 v. Black 15 v. Brecknell 1115 v. Broach 1240, 1245, 1246, 1263 v. Butler 292 u. Cotter 1477, 1490, 1493, 1495, 1496,1499 v. Crump 1351 v. Draker 1111 v. Great Indian &c. Rail. Co. 694, 724 v. Great Northern Rail. Co. 733 u. Gribble 1306 v. Hawks 821 v. Hewson 920 v. Hunt 139 v. Ingersol 55 v. Kilburne 954 v. Knowles 1245 v. McCormick 929 v. Martin 3, 251, 1235 v. Mayo 216, 220 v. Mitchell 1439, 1440, 1465, 1478, 1483, 1486, 1502 u. Morgan 933, 937 v. Mowlin 1145 v. Nutkin 395 v. Pe wires s 569 Martin u. Pycroft 192, 1026, 1028, 1030, 1463, 1479 t>. Ranlett 409 „. Roberts 1093, 1094, 1107 r. Smith 619 v. Temperley 860, 862 v. Terrell 1010 v. Walton 361, 362 v. Window 55 v. Withers 235 v. Wright 181, 7 70, 7!) 8 Martin's Anchor Co. v. Morton 1300 Martindale v. Booth 574 t-.Smith 519,521,597 Martineau v. Kitehing 518, 519, 522. 523 Martini v. Coles 297, 31(1 Martyn v. Blythinan 748, 999 v. Clue 469 v. Williams 470, 1391, 1392 Martyr v. Bradley 503 Mart'zell v. Stauffer 898 Marvin ... Bates 1221 v. Wallis 540, 541, 554, 557, 560 Mary, The 1178 Maryland Savings Bank v. Schroe- der 1451 Maryon v. Carter 1075 Marzetti v. Williams 80, 1322 Clascal's case 159s Mason c. Armitage 1024 e. Blair 1450 i'. Bradley 1163 v. Briggs 1071, 1205, 1206 «. Cole' 117 r. Connell 330 v. Corder 1493 v. Crosbv 2S2, 581, 1036, 1039. 1041, 1045 i. Ditchbourne 1039 c. Fakle 954 i>. Franklin 1444 v. Hughart 263 v. Jewett 1154, 1155,1156 v. Kaine 435, 436, 437 i: Marsh 1117 v. Morgan 228 !-. Pritchard 770 v. Rowe ill] v. Ship Blaireau 797 v. Sudan 954 c. Thompson 524, 675, 676, 677 i). Waite 29 7, 900, 902 v. Wright 197,204 Massey v. Goodall 508 i. Johnson 412, 1157 r. Knowles 395, 1353 TABLE OF CASES. CXX1 Massey v. Sladen 116 Massie v. Crawford 654 v. Watts 1427 Masson v. Bovet 1092 1093 Master v. Kirton 359 w.Miller 1161, 1162, 1358 1360 Masters, re 997 Masters v. Ibberson 1035 Masterton v. Brooklyn 1327 Matlieney v. Guess 226 Mather, ex parte 897 Matheson v. Ross 1121 Mathew v. Blackmore 878 Mathews w. Coalter 1164 1166 v. Haughton 1153 o. Jewell 460 Matson v. Wharam 751 Matthewman's case 1442 Matthews v. Bliss 1042, 1043 v. Crisman 744 o. Houghton 1368 v. Menadger 804 v. Milton 751 v. Parker 655 v. Phillips 1260 u. West London Water Works 861, 862 Matthewson's case 256, 1354 Matthewson v. Johnson 194 v. Lydiate 1354 Matthey v. Wiseman 1100 Mattock v. Kinglake 73, 424 Mattocks v. Bellamy 1104 v. Owen 991 Maud ». Waterhouse 41 Maudlin v. Branch Bank 350, 355 Maudslay v. Le Blanc 336, 337 Maugham v. Hubbard 179 Maughan v. Vinesberg 1296 Mauldin v. Bank of Mobile 362 Maule v. Weaver 1399 Maunsell v. Massareene, Lord 1335 Mauri ... Heffernan 130, 309, 740, 884 Maury v. Talmadge 726 Maverick v. Eighth Avenue R. R. Co. 726 Mavingv. Todd 713, 717 Mavor v. Pyne 81,. 564, 599, 617, 1153 Maw v. Topham 1438, 1468, 1488 Mawbrey v. Cunningham 751 Mawman v. Gillett 1090, 1092 Mawson v. Blane . 221 Max v. Roberts 666 Maxim v. Morse 58, 263, 1262 Maxted v. Paine 746 Maxwell v. Brown 555, 562 v. Griswold 943 v. Haynes 1373 u.Jameson 880, 902, 1380 o. Port Tenant Co. 1469 May v. Babcock 151 v. Bliss 866 v. Breed 1302 v. Chapman 1035 y. Coffin 31 , B.May 1350,1467 v. Smith 165 v. Woodward 1355, 1356 Mayall v. Boston & Maine R. R. 700, 723 Mayberry v. Barniton 350 o. MansBeld 871 Maydew v. Forrester 884 Mayer v. Dwinell 649, 1061 v. Everth 161 v. Foulkrod 947 ... Isaac 136, 770, 772 v. Nias 1105, 1271 Mayfield v. Robinson 163 v. Wadsley 68, 417, 421, 1337 Mayhew v. Boyce 731 v. Eames 697, 717 u. Herrick 319 o. Scott 1089 !>. Thayer 245 Maylin v. Conlon 971 Maynard v. Downer 1291 v. Hunt 1190 v. Rhode 1048 Mayne v. Griswold 1235 Mayor v. Humphries 730 Mays v. Cincinnati 940 Mazarine's, Duchess of, case 253 Maze t>. Miller 1126 Mead v. Carpenter 288 v. Degolyer 155, 599 v. Fox 430, 432 u. Merritt 1427 Meader.u. Stone 487 Meadows v. Meadows 91, 413 u. Smith 270, 308 v. Tanner 409 Means v. Williamson 537 Mearing v. Hillings 919 Mears v. Morrison 310 Mease v. Mease 146 Meason v. Phillips 623 Mechanics' Bank v. Bank of Co- lumbia • 305, 308, 311 Mechanics' Bank v. Merchants' Bank 806 Mechanics' Bank of New York v. Godwin 383 TABLE OF CASES. Meehelen v. Wallace 68, 412, 420, 1003 Medbury !'. Hopkins 133 v. Watrous 200, 221 i>. Watson 579, 581, 658 Medeiros v. Hill 1075 Medina ,;. Stoughton 628, 629 Meerh b. Bennett 408 v. Smith 313, 314, 959 Meek !'. Atkinson 270, 271 Mecrt v. Mcessard 3 75, 902, 1375", 1381 Megener v. Smith 1371 Megginson v. Harper 1252 Meggott v. Mills 574, 1114 Meggs v. Binns 819 Melan v. Fitefamei, Duke de 128, 134 Melancon o. Robichaux 630 Melanotte v. Teasdale 163, 169 Meldrum v. Snow 540 Melford v. Beazley 550 Melledge c. Boston Iron Co. 277, 304, 379, 1136 Mellen v. Whipple 75, 76, 77 Mellish v. Motteux 645 Mellors v. Shaw 858 Mellward v. Ingram 114 7 Melville v. De Wolf 107 7 .-. Doidge 766 v. Hayden 7 71 Melvin v. Proprietors of Locks & Canals on Merrimack River 136 Mendel, ex parte 1299 Menetone c. Athawes 673, 832 Mercer v. Cheese 1134 v. Irvino- 1320 v. Selden 1222 v. Whall «54 Merceron v. Dowson 1397 Merchant v. Mason 8 70 Merchants' Bank o. Davis 63 v. Spicer lloi; Merchants' Bank of N. Y. v. Spald- ing 583, 9s 7 Merchants' National Bank i>. Bangs 518, 522, 524, 526 Mercien i>. Andrews 345 v. Amlrus "56 v. Smith 1279 Meredith v. Footner 232, 233, 239 v. Ladd 990 v. Meigh 555, 561, 562 Meres v. Ansell 141, 153 Merethen v. Andrews 1450 Meriden Britannia Co. v. Zingsen 127, 147 Merle v. Matthews 24 v. Wells 770 Merriam v. Bayley 264 Merriam v. Cunningham 196, 197, 207, 208 v. Hartford & New Ha- ven R. R. Co. 683, 686 v. Stearns 590, 1018 v. Wilkins 216, 221 v. Wolcott 627, 931 Merrick v. Burlington R. R. Co. 22, 378 v. Dawson 1172 Merrick's Estate 278, 315 Merrill ». Aden 68 v. Downs 591 v. Gore 117 v. Hunnewell 524, 525 u. Ithaca & Oswego R. R. Co. 830 v. Parker 520, 530 v. Sloan 283 v. Wilson 308 Merrills ». Swift * 1245 Merrimack County Bank v. Brown 775, 1112, 1113 Merritt v. Brown 434, 1506 v. Claghorn 676 v. Clason 91, 540, 548, 549, 550 v. Johnson 672 v. Lambert 286 v. Lincoln 779 Merrow v. Huntoon 827, 828 Merryweather v. Nixan. 749, 897 Mershon v. Hobensack 689, 729 Merwin v. Butler 683 v. Huntington 945 v. White 702 Mesnard v. Aldridge 645 Mesner v. Suffolk Bank 61 Messenger v. Armstrong 477 v. Clarke 228 Messer v. Swan s93 v. Woodman 406, 522, 524, 532, 555, 563, 614, 615, 1331 Messin ti. Massareene, Lord 1335 Messner v. Lancaster Co. 834 Metcalf t>. Bruin 767 i>. Shaw 236 v. Taylor 90 Metcalfe v. Fowler 439 v. London, Brighton & South Coast Rail. Co. 720 v. Pulvertoft 1437, 1439 Method. Episcopal Church v. Jaques 1439 Methwold v. Walfank 991 Metropolitan Counties Assurance Co. v. Brown 476 Mettler v. Moore 623 Metzgar v. Metzgar 1273,1367 TABLE OF CASES. CXXUl Metzner v. Bolton 841 Meux v. Bell 1367 v. Howell 576 v. Humphreys 587, 987 Mews v. Carr 552 Meyer v. Evoreth 639 v. Ha worth 56 v. Sharp 320, .334 Meyerstein v. Barber 1370 Meynell v. Surtees 15, 1363 Meyrick o. Anderson 376 Michael v. Allestree 867 Michigan Southern R. R. Co. v. McDonough 686 Michinson v. Hewson 94 Mickie v. Wood. 960 Micklethwaite v. Nightingale 1463 Middlebrook v. Corwin 509 Middlebury College v. Chandler 198, 202 v. Loomis 51 Middleditch v. Ellis 342, 968 Middlemore v. Goodale 1383, 1389, 1391 Middlesex Bank v. Butman 1177 Middlesex Co. u. Osgood 530, 531, 1202 Middleton, ex parte 1017 Middleton v. Fowler 683, 860 v. Gill 955 v. Greenwood 1429 v. Kenyon, Lord 24 v. Magnay 1422, 1423 Midgley v. Lovelace 1346 Midland Rail. Co. u. Bromlev 689, 711 v. Pye 255 Mifflin v. Smith 330, 359 Milbourn v. Ewart 1157, 1401 Milburn v. Codd 344 Mildmay v. Hungerford 1023, 1462, 1474 v. Standish 105 Mileham v. Eicke 905 Miles v. Paeon 951 u. Bernard 805 v. Bough 102, 297 v. Boyden 373 v. Cattle 687, 700 v. Dell 939, 948 v. Gorton 520, 597, 598, 606, 608, 1416 v. Roberts 155, 1201, 1202, 1203, 1204, 1210 v. Williams 227, 1405 Milford v. Hughes 806 Milkman v. Ordway 1421 Millar v. Craig 84 Millard v. Baldwin 76, 77, 155 Millard v. Harvey 1441, 1454 v. Hewlett 216 Mill Dam Foundry v. Hovcy 155, 1083, 1149 Millen v. Dent 179,1121 Miller v. Atlee 898, 905, 1290 v. Auburn & Syracuse R. R. Co. 418 u. Baker 417 v. Bartlett 321, 322 v. Caldwell 1241 v. Chetwood 1028, 1474 v. Cook 976 v. Cotten 1430 v. Covert 1101, 1172 v. Drake 29, 77 v. Fenton 897 v. Goddard 828, 841, 844, 846, 856 v. Gould 1000 v. Holden 1127 v. Howry 880 v. Irvine 92 v. Keinrick 134 v. Lancaster 1246 v. Lang 251, 466 v. Livingston 801 o. McCaffrey 825 v. M'Clain " 1208 v. M'Coun 782 i . Manice 355, 1172 v. Mariners' Church 856, 1333 v. Marston 802 v. Maurice 347 v. Miller 86, 248, 838, 880, 902, 903, 906, 1116, 1178 v. Newman 613 v. Phillips 825, 830, 1065 v. Plumb 491, 501 v. Post 582, 584, 588, 1004 v. Robe 809 v. Ship Resolution 259 v. Sims 217 v. Smith 1093 e. Steam Nav. Co 709 v. Stevens 149,151,153 v. Stewart 765, 776, 1162 v. Stock 313 v. Tetherington 158 v. Trevilian 1111 v. Whittier 428 v. Woodfall 1340 Millership v. Brooks 5 Milley v. Holbrook 35 Millgate v. Kebhle 618 Milligan v. Cooke 1485, 1489 v. Wedge 860, 862, 863 CXX1V TABLE OF CASES. Milliken v. Brown 1101, 1102, 1103, '1154 v. Milliken 1465 v. Southgate 959 v. Tufts 1110,1111 v. Warren 597 Millikin v. Coombs 276 Mills v. Alderbury Union, Guar- dians of 766,929 v. Argall 3 52 v. Ball 610, 611 r. Barber 26, 345, 346, 352, 353 v. Blackall 21 v. Camp 524, 537, 572 v. Catlin 136 v. Fowkes 1111, 1112, 1115, 1217, 1220, 1252 v. GofF 486 o. Gore 5 v. Gorton 596 v. Graham 209 c. Hunt 309, 533, 563 v. Hyde 787' v. Ladbrook 1341,1342,1345 v. Lee 47 v. Starr 1162, 1163 v. Western Bank 945 v. Wildman 1239, 1240 v. Wyman 53, 58 Millward v. Littlewood 792 Milner v. Duncan 9'34 v. Field 833, 10.S7 v. Harewood, Lord 202, 203, 218 u.Alilncs 224, 225, 226, 1400, 1401 i.. Tucker 652 Milnes v. Branch 1 392 v. Cowley 31 v. Duncan 930, 948 Milnor v. Willard 433 Milton v. Mosher 347, 353 v. Rowland 649, (158 v. Salisbury 679 Milvain v. Mather 1276 v. Perez 313 Milward v. Thanet, Earl of 1506 Minden v. Cox 214, 215 Miner v. Bradley 533, 923, 1080, 1089, 1090, 1095 Mines v. Sculthorpe 615 Mines Koyal Societies v. Magnay 1310 Minet v. Leman 1408, 1499 Mingus v. Pritchett 1204,1209 Minis ii. McDowell 1135 Minns v. Morse 82, 422 Minor i'. Walter 1267 Minshall v. Llovd 489, 495 v. Oakes 1086, 1387 Minturn v. Main 316, 923 Minturn v. Seymour 1434, 1470 Mirick «. Trench 32, 51 Misner v. Granger 632, 633 Mississippi Central R. R. Co. v. Kennedy 699 Mitchell v. Beal 572 v. Bunch 1427 r\ Cockburn 897 v. Cragg 1127 v. Crassweller 868 v. Cunningham 537 v. Dall 329,1110, 1111,1112. 1117 v. Gile 598, 1323 v. Gregory 1 208 v. King , 1194 v. Kingman 187, 1050 r. Maupin 1103 P. Merrill 1210 v. Reynolds 982 v. Sandford 946 0. Smith 1004 v. Sproul 891 v. Vance 1000 v. Warner 1382, 1398, 1408 v. Williams 348 v. AVinslow 1363 i: Worden 566 v. Zimmerman 1045 Mitcheson v. Oliver 834 Mitcbinson v. Hewson 64, 226, 227, 966, 1401, 1403 Mitehum v. Bank of Kentucky 362 Mittbrd v. Mitford 226, 1405 Mittelholzer ». Fullarton 977 Mixed Moneys, case of 1196 Mixer's case 1037 Mixer r. Coburn 83, 630, 633, 652, 653, 1094, 1141 v. Cook 539, 596 v. Howarth 530, 543 Mizen v. Pick 242, 243 Mizner r. Monroe 477 Moakes v. Nicholson 528, 605 Moale v. Buchanan 96, 1029, 1430, 1451 t>. Hollins 1354 Moar v. Wright 1359 Mocatta v. Francis 33 Mock r. Kelly 800 Mockbee r. Gardner 626 Moddewell v. Keever 320, 352 Modisett v. Lindley 292 Moek v. Kelly 809 Moens v. Heyworth 281, 1044, J 045, 104 7 Moffatt v. Parsons 1187,1191 v. Smith 4 71 Moffit v. Jaquins 296 TABLE OF CASES. CXXV Moggridge v. Jones 426, 825, 1141 Mohawk Bank v. Broderic 1106 Mohawk Bridge Co: v. Utica & Schn. R. R. Co. 136 Moller v. Living 143 v. Young 1371 Mollett v. Brayne 459 v. Wackerbartb. 1161, 1163 Moltby v. Carstairs 781 Molton v. Camroux 187, 191, 192, 401, 402, 924 Monck v. Clarke 365 Moncrief v. Goldsborough 407 Mondell v. Steel 647, 652 r 1094, 1175, 1331 Monell v. Burns 844, 851, 854 v. Lawrence 1119 Moneypenny v. Hartland 805, 872 Monk v. Clayton 279 v. Cooper 471 v. Whittenbury 307 Monkman v. Shepherdson 52, 60 Monro v. Taylor 1456, 1462, 1473 Monroe v. Conner 358 v. Douglas 1177 Montague v. Benedict 232, 233, 237, 239, 245 v. Tidcombe 127 Montefiore v. Lloyd 766 Montgomery v. Evans 665 v. Ives 962 v. Larapton 58 Montgomery R. R. Co. v. Hurst 277 Montriou v. Jefferys 814, 818 Montstephen v. Brooke .1096 Monypenny v. Monypenny 117 Monys v. Leake 1003 Mooar v. Bates 1224 Moodie v. Bannister 1228 Moody v. Baker 1336 v. Brown 530, 531 v. Mahurin 1196 v. Spencer 1283 v. Wright 528 Moon v. Durden 738 v. Henderson 227 Mooney v. Lloyd 836 v. Miller 1039 Moor v. Adam 875 v. Hill 1376 v. Roberts 426 v. Wilson 314, 315 Moore v. Adams 976 v. Allen 1000 v. Appleton 748, 897, 999 v. Bank of Columbia 1239 v. Blake 1507 v. Bowmaker 3 v. Broussard 779 Moore v. Bushell 1365 ' v. Campbell 155, 156, 551, 1060 v. Clementson 306, 1096 v. Fitz water ' 47 r. Fox 101 v. Gano 344 v. Garwood 103, 178, 926 v. Gwynn 129 v. Hart 546 o. Hill 967,1118 v. Hitchcock 802 v. Holland 104, 672 v. Marrabee 1507 v. Meek 7 v. Michigan Central R. R. Co. 710 . v. Moore 893 v. Paine 780 v. Patten 951 v. Perpetual Ins. Co. 120 v. Piercy 20, 540 u. Pierson 18 v. Pyrke 880, 902 <-. Ramsdcn 1021 !' Sanborne 860, 868 v. Sheredine 710 v. Tucker . 55 v. Turbeville 1040 v. Usher 990 t>. Viele 263 v. Voughton 84, 958 v. Walker 780 i.. Wilson 723, 725 IMorancy v. Buford 1151 Mordecai v. Soloman 820 More v. Smedburgh 432, 1479 Morehead o. Hunt 407 Mores v. Conham 671 Morewood v. South Yorkshire Rail. Co. 575 Morey v. Haman 105, 111 v. Newfane 50 Morgan v. Arthurs 491 v. Birnie 834, 1087 e. Bissell 440, 443 v. Bittenberger 422 c. Bliss 1042 v. Bowman 860 v. Evans 954 v. Fencher 627 v. Gath 119, 1059 v. Horseman 1002 v. Hubbard 1120 v. Jones 879, 960 v. Knight 1419 v. Milman 1438, 1455 v. Morgan 1445 v. Painter 1401 XXVI TABLE OF CASES. Morgan v. Palmer 940 Morrison v. Barrow 1497 v. Pebrer 736 v. Beckey 75 v. Pike 7 v. Berkley 880, 902 v. Price 1133 v. Chadwick 512, 1081 v. Rainsford 1480 v. Deadrick 1364 v. Ravey 675 v. Glover 391 v. Rhodes 1361 c. Heath 797 v. Richardson 653, 1140 v. Ives 424 v. Stell 279 v. McLeod 1465 v. Thames Bank 228 v. Moreland 1280 v. Vale of Neath Rail. v. Parsons 277, 1281 Co. 858 v. Rogers 86, 906 v. Walton 1250 v. Smith 1256 Morisset v. King 321 v. Summers 1097 Moritz v. Melhorn 22, 790 v. Taylor 893 Morland v. Leigh 949 Morrow ». Smith 47 v. Pellett 949 v. Starke 1099 Morley v. Attenborough 626 , 628,629, v. Whitesides 226 630, 636 Mors v. Slue 683 v. Boothby 6, 91 , 149, 153, Morse v. Aldrich 1382, 1383, 1.385 742, 761 v. Androscoggin R. R. Co. v. Clavering 1509 672, 673, 802 v. Frear 1150 u. Bellows 21, 29,4 3 ■-'■'■ u. Gainsford 866 364 v. Grogson 634, 639 v. Brackett 648 v. Hall 169 v. Brainard 707 v. Inglis 12S8 v. Copeland 419 v. Rennoldson 988 v. Crawford 188 v. Sherran 188 v. Earl 224 Morning v. Todd 682 v. Green 308 Morphett v. Jones 1451, 1455 v. Merest 1450 Morrell v. Burns 854 v. Shattuck 1119 v. Fisher 122 v. Sherman 518, 519, 522 v. Frith 103, 116, 1240, 1246 v. Welton 214 Morrill v. Aden 207 , 208, 216 c Wheeler 215, 219 u. Brown 902 v. Wilson 322 v. Wallace 640, 643 Morss v. Elmendorf 405, 1422 Morris v. Baltimore 942 v. Salisbury 127, 141, 147 v. Burdett 869 Morta 1 v. Lyons 1430, 1455 v. Chapman 999, 1001 Mortimer v. Bell 406, 409 v. Cleasby 74, 274 , 275, 303 v. Capper 1503 v. Coleman 986, 1432 u. Cornwell 275 v. Dixon 183 v. Fleming 1003 v. Edwards 147 v. M'Callan 584 v. Eves 134 v. Orchard 1430, 1449 v. Jones 352 Mortimore r. Wright 60, 87, 210, 211 v, M'Cullock 991 Mortlock v. Buller 276, 1438, 1468, v. Martin 249 1471, 1472, 1473, 1480, 1487, 1489, v. Nixon 1474 1492 v. Norfolk 226, 251, 966, 1264 Morton v. Burn 20, 37 v. Paton 94 v. Chandler 938, 946, 1235 v. Preston 1490 v. Croghan 1354 v. Smith 1076 v. Dean 96, 411 ,413,414,545, v. Stephenson 1486 1457 v. Timmins 1505 v. Fenn 794 v. Vanderen 1165 v. Gloster 1019 Morris Canal Co. v. Everett 1040 v. Naylor 1360, 1365 Morris & Essex R. R. Co. v. Sus- v. Tibbett 559, 562 sex R. R. Co. 995 v. Woods 454, 462, 464 TABLE OP CASES. cxxvu Mosdel v. Middleton 1002 Moseley v. Boush 1360 v. Hanford 145 Moses v. Boston & Maine R. R. 684, 686, 695, 703, 708, 710, 712, 713 v. Fogartie 236 v. Macferlan 3, 898, 899 v. Mead 630, 632, 634, 635, 636, 637, 647 v. Norris 681, 682, 689 o. Norton 751, 754 v. Stevens 200, 857 Mosher v. Allen 1357, 1359 v. Southern Express Co. 705 Moss v. Bainbrigge 111 v. Culver 423 v. Gallimore 515 V. Hall 29, 774, 1147 v. Rossie Lead Mining Co. 290, 291, 292 v. Smith 1073 v. Sweet 20, 540, 618 Mossmere v. New York Shot & Lead Co. 1325 Mostellen v. Bost 1367 Mosteller's Appeal 838 Mostyn v. Fabrigas 1387 Mott v. Comstock 242 v. Hicks 311, 313 v. McNiel 572 v. Mott 983, 984, 1317 Motteux v. London Ass. Co. 1028 Mottram v. Heyer 601, 603, 610 Moule, ex parte 205 Moule c. Garrett 744 Moulton v. Faught 419 v. Robinson 472 v. Scruton 651, 657 v. Trask 830, 855, 857, 1091 Mounsey v. Drake 67 Mount v. Hendricks 572 Mountacue v. Maxwell 791 Mountford v. Harper 1105 r. Scott 283 Mount Hope Co. v. Buffington 531 Mountjoy v. Adair 1202 Mountnoy v. Collier 465 Mountstephen v. Brooke 1153, 1154, 1250, 1352 v. Lakeman 749, 750, 759 Mousdale v. Birchall 45 Mousley v. Ludlam 508 Mowatt v. Howland 362 v. Londesborough, Lord 165, 927, 961, 1160 v. M'Clelan 911, 912 v. Wright 928, 929, 934 Mowrey v. Walsh 535, 567 Mowry v. Adams ■ 889 o. Bishop 957, 958 v. Todd 45, 1359, 1366, 1367, 1369, 1376, 1377 Moxey v. Bigwood 405, 1461 Moxhay v. Inderwick 1384, 1507 Moyer v. Shoemaker 924, 1093 Mozeley v. Tinkler 14 Mucklow v. Mangles 530, 543 Mudd v. Reeves 931, 1106 Mudge v. Rowan 1300 Mugford ii. Richardson 487 Muggeridge v. Jones 1094 Muirhead v. Kirkpatrick 1267 Muldon v. Whitlock 1140 Muldrow v. Muldrow 1446 Mulford v. French 1359 v. Shepherd 1141 Mulhall v. Quinn 529, 1361, 1362 Mulhern v. McDavitt 215 Mulholland v. Belfast, Mayor of 1438 Mullanphy v. Riley 46 Mullen v. Gilkinson 844 Muller v. Eno 647, 648, 649, 651, 652, 658 Mullett v. Hutchinson 1 70 v. Mason 657, 658 Mullins v. Trinder 1496, 1498, 1501 Mullock v. Jenkins 1466 Mulvany v. Rosenberger 644 Mumford v. Brown 466, 824 v. Freeman 1246 v. M'Pherson 637 v. Whitney 415, 416, 417, 419 Muncey v. Dennis 510 Mundorf v. Wickersham 282, 1036 Mundorff v. Kilbourn 1431 Mundy v. Joliffe 423, 1430, 1451, 1452, 1455 Munger v. Munger 837 Munn v. Baker 137 v. The Commission Co. 282 v. Godbold 177 Munnikuyson v. Dorsett 816 Munro v. Butt 833 v. De Chemant 241 Munroe v. Holmes 283 v. Luke 516 v. Perkins 155, 797 v. Pritchett 1044 Munsell v. Temple 1363 Munsey v. Goodwin 85 Munson v. Hastings 790 Munster v. South Eastern Rail. Co. 701 Munt v. Stokes 933 Muntz v. Goring; 468 CXXV111 TABLE OF CASES. Murch v. Concord R. R. Corp. 726, 727 Murdock v. Anderson 1457 v. Warwick 734 Murley v. M'Derniott 148 Murphy v. Barron 898,917,938 v. Clark 1425 v. Gay 640 v. Simpson 588, 589 u. Staton 711 Murray v. Barlec 1441 v. Blatchford 1152, 1351 v. Bogert 343, 895 v. Coster 1219 v. East India Co. 293, 381, 956, 1226 v. Govemeur 1367 v. House 813 v. Jndah 1106 v. King 781, 1144 v. Lylburn 136 7 o. Mann 579, 917, 1045 i>. Mechanics' Bank 1244 v. Mumford 360 v. Palmer 30 v. Parker 1029 v. Reeves 994 v. Richards 926 v. Smith 1062, 1206 v. Tolland 804 Murrell v. Goodyear 1480, 1481 Muschamp r. Lancaster & Pres- ton Junction Rail. Co. 683, 704, 705 Muse v. Donaldson 1249 Musgnive v. Dashwood 1438 v. Drake 355 Musgrove v. Gibbs 1101 Musier v. Trumpbour 321, 342 Muskett v. Hill 1392 r. Rogers 785 Musselman v. Stoner 1203, 1204 Mussen v. Fales 2.59, 1000 u.Price 615,1142 Mussey v. Rayner 743, 769 v. Scott 311 Muston v. Bradshaw 1441, 1442 Mutrie v. Harris 1142 Mutual Loan Fund Association v. Ludlow 784 Muzzy i'. "Whitney 321, 322, 326 Myer v. Barker 309 Myers v. Edge 767 v. JGntriken 296 v. Hanlon 1235 ,v, London & South West- ern Rail. Co. 685 „. Meinrath 589, 591, 592, 976 v. Myers 213 v. Sandqrs 219 Myers v. Sari 152 v. Smith 18 v. United States 763 u. Watson 1463 v. Willis 834 Mynn v. Jolifl'e 1097 Myrick v. Hasey 739 Myrtle v. Beaver 386 Mytton v. Cock 664, 665 v. Midland Rail. Co. N. 706 Nagle v. Baylor 192, 1465 Naish v. Tatlock 71 Nantes v. Corrock 1440 Naoraji v. Chartered Bank of In- dia 1284 Napier v. Bruce 766 v. M'Leod 1152 Nares r. Rowles 765, 780 Nash v. Allen 870 v. Duncombe 179 o. Hodgson 1254 u. Lull 653, 924 v. Russell 53 i. Towne 622 Nashua Lock Co. v. Worcester & Nash. R. R. Co. 706 Nason v. Dinsmore 590, 1019 Nation v. Tozcr 374, 513 National A^s. & Investment Co. re 533 National Bank v. Norton 302, 364 National Bank of St. Charles v. Bernales 383 National Exchange Ins. Co. v. Drew 1036 National Fire Ins. Co. v. Loomis 407 National Lancers v. Lovering 951 National Savings' Bank v. Tranah 1134 Naugatuck Railroad v. Button Co. 706 Naughten v. Partridge 352 Navulshaw v. Brownrigg 298 Naylor v. Collinge 499, 502 v. Dennie 600, 602, 603, 607, 608, 609 v. Palmer 117 Nazro v. Fuller 1166 Neal v. Lewis 1336 v. Mackenzie 1509 u. Viney 495 v. Williams 567 Neale v. M'Kenzie 1081 u. Ratcliff 469, 1084* v. Swind 178, 452 v. Turton 340 TABLE OF CASES. CXX1X Neale ». Wyllic 470, 1328, 1337 Neap v. Abbott 1033, 14G1 Neate v. Harding 906 Nedriff'e v. Hogan 1274 Needham's case 346 Needham v. Allison 509 v. Bremner 248 Keelson v. Sauborne 92, 740 Neil v. Cheves loo, 565 Neilson o. Blight 1375 v. Harford 103 v. M'Donald 271 Neimcewiez v. Gahn 781, 784 Nellis v. Clark 1474 Nelson v. Biggers 645 v. .Boynton 740, 750, 756, 757, 758, 1373 v. Bridges 1420 v. Bridport 130 r. Cartmel 952, 955 v. Cowing 287 v. Duncombe 188 v. Ford 1323 v. Mackintosh 664 v. Matthews 431 v. Milford 998, 999 v. Nelson 494 v. Powell 301 v. Searlo 40 v. Stocker 195 v. Suddarth 271 v. Von Bonnhorst 89 Nelthorpe v. Holgate 1360, 1435, 1444, 1447, 1482, 1489, 1490 Nepean o. Knight 254, 1293 Nerot v. Wallace 64, 66, 994 Nesbit v. Lawson 817 v. Patton 348 Nesbitt v. Myer 1508 Ness v. Angas 325 v. Armstrong 325 Netherly o. Ripley 1450 Nettles v. R. R. Co. 690 Nettleton v. Beach 946 v. Billings 106, 117, 120 v. Sikes 140,416 Neve ti. Hollands 1258 Neville «.-. Kelly 12, 799 Nevius v. Dunlap 1024 Newal v. Jones 84, 958 Newall v. Hussey 1136 New Barbadoes Toll Bridge o. Vreeland 431 New Bedford v. Chace 246 New Berlin v. Norwich 141 Newbery, re 469 Newbiggin v. Pillans 255 Newbold v. Sims 971 v. Wright 298 Newborn v. Bronson 1427 New Brunswick &c. Railway Co. v. Conybeare 282, 1036 New Brunswick Co. v. Tiers 689 Newburyport M. Ins. Co. v. Oliver 946, 1180 Newby t). Wiltshire 393, 857 Newcastle, Corporation of, v. Att. Gen. 7 Newcastle Manuf. Co. v. Red River R. R. Co. 315 Newcomb v. Brackett 428, 1071, 1084 v, Clark 304 v. Cramer 1070, 1072, 1204 Newdigate v. Davy 947 Newell v. Koith 798 v. Matey 226 v. Mayberry 1162,1163 u.Newton 1171 v. Radford 544 v. Turner 1093 New England Glass Co. v. B. F. Hunt 813 New England Ins. Co. v. De Wolf 286,291, 310, 311 New England Mut. Fire Ins. Co. p. Butler 1068 Newhall v. Dunlap 309 o. Holt 968 o. Vargas 596, 601, 602, 604, 609, G10 v. Wright 127 New Hampshire Fire Ins. Co. v. Noyes 196, 198, 204 New Hamp.-hire Savings Bank v. Colcord 775, 776, 780, 7.S1, 7H2, 784 New Haven County Bank v. Mitch- ell 743, 744 Newington v. Levy 114 7 New Jersey Steam Navigation Co. v. Merchants' Bank "684, 689, 691, 692, 694, 713 Newland v. Watkin 1021 Newlin v. Duncan 1246 Newman, ex parte 1304 Newman v. Crocker 1368 v. McGregor 828 v. Meek 409,1113 o. Newman 1002, 1003 v. Walters 61, 797 v. Washington 811, 835 v. Wood 1180 v. Zachary 1325 Newmarch v. Tealby 1 1 1 j Newmarket Iron Foundry v. Har- vey 615 Newnham v. Stevenson 567 Newport u. Cook 213 New Quebrada Co. v. Carr 1290 cxxx TABLE OF CASES. Newry & Enniskillen Rail. Co. v. Combe 202 New Salem v. Wendell 888 Newsom v. Harris 439 V.Thornton 297„600, 601, 609 Newsoine v. Coles 361 v. Graham 908 Newson v. Douglas 956 Newton, re 1183 Newton a. Allin 1081 v. Beleher 337 v. Boodle 1402 v. Chambers 872 c. Fay 1475 i'. Forster 825, 1266 v. Galbraith 1211 v. Harland 487 v. Scott 1295 v. Swazey 1436, 1456 v. Wilson 960 New York v. Bailey 861, 863 New York, Mayor of, v. Butler 147 New York Bowery Ins. Co. v. New York Ins. Co. 1048 New York Central Ins. Co. v. National Protective Ins. Co. 274, 283 New York Fire Ins. Co. v. Ben- nett . 350, 351, 358 New York Fire Ins. Co. v. Ely 383 New York R. Co. v. New York 378 New York State Bank v. Fletcher 740, 786, 1135, 1372 New York & Wash. Tel. Co. v. Dryburg. 684, 685, 723 Niagara Bank v. Roosevelt 1110, 1113 Nias v. Adamson 266, 268 Nichol v. Bestwick 1337 v. Godts 633 r. Mumford 324 Nichole c. Allen 87 Nicholl !'. Chambers 404 v. Jones 1439 Nicholle v. Plume 557, 558 Nicholls i>. Corbett 1481 v. Diamond 345 v. Lefeuvre 610 v. Woody 386 v. Stretton 987 v. Wilson 820 Nichols v. Coolahan 849, 850 v. Freeman 428, 437, 439 v. Hart 609 a, Johnson 544, 1162, 1168 v. Martyn 85 r. Morse 614 v. Norris 612, 775, 1054 v. Patten 537, 1038 Nichols v. Pinner 566 v. Rugubred 50 o. State Bank 293 v. Whiting 1211, 1212 v. Williams 1435 Nicholson v. Bower 563 v. Bradfield Union 382, 394 v. Gooch 918 v. Great Western Rail. Co. 687 v. Hood 596 v. May 32 v. Mounsey 683 v. Munigle 512, 1081 v. Paget 771 i'. Ilevill 1155,1356 v. Smith 172 v. Willan 713 Nickells v. Atherstone 460 Nickels v. Hancock 1468 Nickerson v. Anderson 199 v. Darrow 298 v. Easton 85, 200 Nickley v. Thomas 1043 Nickson v. Brohan 279, 288 Nicol's case 282, 1035, 1036 Nicoll v. Greaves 839 Niedelet r. Wales 67, 5'14 Niell c. Morley 190 Niemcewiez v. Bartlett 1264 Nightingale v. Dcvisme 876, 902 v. Witbington 205, 213, 214, 222, 223 Niles v. Board of Comm. Sink. Fund 957 v. Culver 151, 637 Nind v. Marshall 124, 138 Nisbet v. Smith 781, 783 Nixon c. Hamilton 283 v. Hyscrott 285 Noble if. Adams 567, 568, 605 o. Bank of Kentucky 813 v. Bates 982, 983 v. Bosworth 492 v. National Discount Co. 912 v. Smith 60 v. Ward 155, 1066, 1506 Nock v. Newman 1481 Noekells v. Crosby 337, 340, 926, 1012 Nodine v. Doherty 589 Noe v. Hodges 1197 Noel j). Hart 811 v. Hoy 1479 Nojac v. Boston & Lowell R. R. 706 Nokes v. Awder 1385, 1389, 1391 ;;. Killorcy 433 Noland v, Clark 669 Nolte, ex parte 351, 358 TABLE OF CASES. CXXX1 Nolton v. Western R. R. Corp. 666, 727 Noonan v. Orton 1509 Nordenstrom v. Pitt 950 Norfolk, Duke of, b. Worthy 303, 403 Norfolk Rail. Co. v. McNaniara 1160 Norman u. Cole 993 v. Molett 96 v. Phillips 558, 561, 562, 723 v. Thompson 1157, 1158 v. Wells 1382, 1387, 1390 Norris v. Aylett 1135 v. Boston ' 943 v. Crumney 779 ■.'. Douglass 812, 1359, 1361 v. Jackson 1423, 1431 v. Var.ce 215 v. Winsor 828, 829 North v. Barnam 462 v. Forest 46, 541 v. Pepper 425 v. Wakefield 1155 Northampton v. Ehvell 77 Northampton Bank v. Pepoon 275 North British Insurance Co. v. Lloyd 773 Northcut c. Wilkinson 1264 Northern v. Williams 709 Northern Assam Tea Co. re 1282 Northern Central R. Co. u. Bas- tian 379 Northey v. Field 602, 603, 610, 611 North River Bank u. Aymer 285, 293 North River Meadow Co. v. Shrews- bury Church 1166 Northrop v. Graves 935, 936 Northumberland v. Errington 1355 Northup v. Cook 1331 v. Foot 589, 1019 Northwaite v. Bennett 395, 1353 North Western Ins. Co. v. Phcenix Oil & Candle Co. 1214 North Western Rail. Co. v. Mc- Michael 202 North Western Rail. Co. v. Sharp 819 v. Whin- ray 776 Norton v. Coons 891, 892 „-. Eastman 742, 744, 780 v. Ellam 1072, 1191, 1232 v. Fazan 246, 249 v. Herron 310 v. Marden 928, 930, 934, 935 v. Mascall 1432 t\ Preston 422 „. Rhodes 246 v. Roberts 774, 781 v. Rose 1367 v. Seymour 345 Norton v. Simmes 1002 v. Soulc 786 v. Woodruff 672 v. Young 1090, 1092 Norval v. Pascoe 1391, 1392, 1397 Norway Plains Co. v- Boston & Maine R. R. 703, 708, 710, 712 Norwood v. Cobb 1177 Nosotti v. Page 1322 Notley v. Buck 933, 950 v. Webb 170 Noton v. Brooks 626 Nott v. Downing 359 Nouaille v. Flight 1490, 1494 Novelli v. Rossi 88, 1169, 1179 Nowlan v. Ablett 839 Noyes v. Canfield 159 v. Nichols 743, 776 v. Price 903 i\ Rutland & Burlington R. R. Co. 704, 706 Nuer v. Sebenck 1367 Nunn !'. Fabian 423, 1452 v. Truseott 1507, 1509 Nunnery v. Cotton 1168 Nurse i>. Craig 242 u. Seymour, Lord 1459 v. Wills 257 Nutbrown v. Thornton 1425 Nutt v. Butler 495 Nuttal v. Stanton 507 Nutting v. Conn. River R. R. Co. 705 v. Dickinson 422 Nye v. Moseley 980 1450 O. Oakden v. Pike 1069 Oakes v. dishing 69 v. Mitchell 1264 v. Munroe 479, 485 v. Turquand 567, 1036, 1037 Oakey v. Wilcox 1161 Oakham v. Dorchester Fire Ins. Co. 503 v. Holbrook 467 Oakley v. Monck 450 B.Morton 1074 v. Portsmouth &c. Steam Packet Co. 689 Oaks v. Weller 743 Oates v. Hudson 271, 910, 941 v. Mitchell 1258 Oatman v. Cook 426 v. Walker 428, 1064, 1065, 1187 CXXX11 TABLE OF CASES. O'Barr v. Alexander 813, 817 Obbard v. Betham 653, 825, 1140 Oberrayer v. Nichols 953, 960 Oble v. Dittlesfield 37 O'Brien v. Cnrrie 205 v, Gilchrist 151 v. Kenyon, Lord 905 O'Callaghan v. Thomond, Mar- chioness of 134 Ocean, The 260 Ocean Ins. Co. v. Carrington 79 v. Portsmouth Mar. Railway Co. 383 v. Rider 821 Ocldngton v. Richer 416, 522, 524, 1331 O'Conley ;;. Natchez 86, 899, 906 O'Conner v. Tovvnes 1064 v. Tyves 511 Odam v. Beard 141 Odell v. Dana 892, 125 7 v. Wake 1398 Oden v. Klliot 882 Odes v. Woodward 278 Odiorne v. Maxev 282, 285, 290, 293, 294, 298 v. Sargent 126 Odlin v. Greenleaf 892 O'Donnell v. Leeman 97, 160, 542 v. Sweeney 588 Odye v. Cookney 1121 Oelricks v. Ford 315 O'Fay v. Burke 15 Offley v. Clay 1098 !>. Ward 77 Offord c. Davis 785 Ogdcn r. Astor 321, 322, 1219 v. Fossick 1468 i. Gillingham 278 v. Raymond 314, 386 Ogilvie v. Foljambe 432 v. Hull 465, 1082 Ogle v. Atkinson 669 v. V.inc, Earl of 155, 623 Oglesby >;. I»le;.i:is 313 OTIanlan v. Great Western Rail. Co. 621, 624, 725, 1326 O'Herlihy v. Hedges 1481 Ohio Life Ins. Co. v. Ross 1367 Ohio & Miss. R. R. Co. v. Mid- dleton 292 Ohl c. Eagle Ins. Co. 324 O'Kell c. Smith 650, 825, 1092 O'Keson v. Barclay 47, 48 Okill c. Wbitfakcr 1032 Olcott v. Scoles 1239 Old Colony Railroad Corp. v. Evans 6, 23, 9 7, 426, 1428 Oldershaw v. King 35, 41 Oldfield v. Lowe 823 Oldfield or Bowles v. Round 1496 Oldham v. Bateman 76 v. Hubbard 661 v. Sale 82, 423, 852 v. Sparks 816 Oldis v. Armston 1307 Olive v. Dougherty 1453 v. Smith 1287 Oliver v. Dovatt 964 u. Fielden 1082 v. Gray 1239, 1246, 1249, 1261 v. Hallam 956 v. Houdlet 222 v. Palmer 1028 v. Thomas 1216 v. WoodrofFe 206 Ollivant v. Bailey 635, 649, 1023 Ollive v. Booker 1082 Ohnstead v. Beale 826, 828, 831, 844, 846 v. Hotailing 282 v. Niles 416 Olmsted v. Greely 756 Olympic Theatre 492 Olyphant ». Baker 520, 524, 560 O'Maley v. Reese 919 O 'Mealy v. Wilson 260 Omerod v. Hardman 1463 Oneale v. Lodge 1119 Oneida Manuf. Co. v. Lawrence 636,637, 643 O'Neil v. Brindlo 805 Onondaga v. Briggs 934 Onondaga Co. Bank r. De Puy 347 Onslow i\ 506 v. Corric 1398 c. Eames 655 Ontario Bank v. Liuhtbody 1107 c. Mumford 1360 r. Root 1458 Oothout v. Thompson 1235 Oppenheim v. Rn-rll 609, 688 Oppenheimer r. Edney 699 Orange Co. Bank v. Brown 687, 697, 698, 714, 727 Orchard v. Rackstraw 802 Orcutt v. Nelson 293 Ord v. Fen wick 377 v. Noel 1468, 1503 O'Reilly v. Thompson 1453 Orford v. Cole 163 Oriental Bank v. Tremont Ins. Co. 956 Oriental Inland Steam Company (,. Briggs 15," 1427 Orlebar <>. Fletcher 1436 Orme v. Broughton 427, 1410, 1509 v. Young 779 TABLE OF CASES. CXXXlll Ornies v. Beadle 1037 Ormond v. Holland 858 Ormond, Lord, v. Anderson 1456 Ormrud v. Huth 639, 1041, 1045 Ormsby v. Letcher 1239 Orr v. Bigelow 1331 v. Churchill 1319 v. Morris 370 v. Williams 1210 Ortread v. Round 1486 Orvis v. Kimball 216 Osbaldeston v. Askew 1499 Osborn v. Bank of United States 812, 813 v. Guy's Hospital, Gover- nors of 798 Osborne v. Atkins 1398 u. Bremar 406 i'. Brennan 321, 331 v. Fuller 572, 649 v. Harper 890, 1350 v. Horner 291 v. Jordan 1358, 1362 v. Kerr 386 v. Phelps 544 v. Van Horn 214 Oseas v. Johnson 343 Osgood v. Breed 878 v. Franklin 30, 1050, 1503 v. Howard 500 v. Lewis 634, 635, 641, 643 v. Pearsons 139, 1061 Osmond v. Fitzroy 186, 1050 Ossulston v. Yarmouth 958 Ostrander v. Brown 708, 709 Oswald v. Berwick, Mavor &c. of 764 v. Thompson 576 Otis v. Gazlin 263 v. Lindsey 957 v. Raymond 1042 Otter v. Vaux, Lord 1485 Ottman v. Moak 218 Otts v. Aklerson 630, 631, 643 Oughton v. Seppings 950 Oulds v. Harrison 1009, 1283 Ousterbxut v. Day 870 Outcalli;. Van VVinkle 226 Outfield v. Warning 71 Outon v. Rodes 990 Outram v. Morewood 1173,1176 Outwater v. Dodge 522, 555, 557, 562 v. Nelson 83, 159 Overbay v. Lighty 657 Overstreet v. Phillips 29 Overton v. Freeman 862, 864 v. Harvey 1175 Owen v. Body 577 v. Bowen 799, 1380, 1381 Owen v. Boyle 129 v. Burnett 719, 720 t). Estes 420 v. Gouch 302, 308 v. Homan 765, 773, 775, 1155, 1441 c. Routh 1297, 1332 v. Van Uster 345 v. White 211, 213 {..Wilkinson 1278 v. Woolley 1245 Owens v. Baldwin 1430 v. Denton 946 v. Dickenson 1441 Owenson v. Morse 616, 1134, 1379 Owing's case 187 Ownings v. Hull 292, 294 Owston v. Ogle 341, 1347 Oxendale v. Wetherell 82, 599, 616, 1059 Oxford v. Provand 1430, 1456 Oxford Bank v. Haynes 744 v. Lewis 779, 780 Oxlade v. North Eastern Rail. Co. 685 Oxley v. James 1392 Ozard v. Darnford 241 Ozeas v. Johnson 966 P. Pabodie v. King 35 Pack v. New York 862, 864 Packard v. Bordier 709 v. Dunsmore 537, 574 v. Getman 686 u.Hill 110 v. Richardson 92 v. Usher 432 v. West 536 v. Wood 520, 537, 574, 575 Packer v. Gibbins 514 v. Hook 141 v. Wilson 92 Packet Co. v. Sickles 101 Paddock v. Fradley 149 v. Strobridge 1043, 1049 Padwick v. Hanslip 1472 v. Piatt 1443, 1446, 1447 Page v. Bent 1044 v. Broom 957 v. Carpenter 525 v. Cowasjec 600 v. Foley 1227 v. Marsh 800, 846 t>. Meek 1102 v. Monks 69, 421, 1003 v. Newman 950, 952, 954, 960 v. Parker 657 CXXX1V TABLE OF CASES. Page j>. Thrall e. Trufant Paget v. Wilkinson Paice v. Walker Paige v, Ott v. Parker o. Stone Pain v. Coombs Paine v. Drew v. Edsell v. Haine v. Meller v. Packard v. Strand Union Painter v. Ncwby t'. Williams 45 6 627 310 533, 599, 1209 21 294, 301 1452, 1509 133 1164 468 1484 779 382, 394, 875 1489 393 Palfrey v. Portland &c. R. R. Co. 38, 129, 130 Paliver v. Green 1278 Palk v. Force 806 Pallister v. Gravesend, Mayor of 1002 Palmer r. Andover 734 v. Andrews 794, 795 v. Bate 112, 1016 v. Earith 474 v. Edwards 1397 v. Goodwin 1302 v. Gorcn 1484 v. Grand Junction Rail. Co. 683, 696 i>. Head 539 v. Merrill 1358, 1365, 1366 v. New York 1220 v. Sparshott 1345, 1347, 1350 v. Stebbins 983, 984 v. Stephens 314 v. Temple 1175 v. Warren Ins. Co. 136 Palmerton v. Huxton 1128 Palo Alto, The 18 Palyart v. Leckie 945 Pancoast v. Addison 1221 Pannell v. Mills 105 Panton v. Jones 455 Papillon v. Brnnton 4S1 Paradine v. Jane 67,468,1074,1076, 1209 Pardee v. Drew 698, 702, 728 Pardington v. South Wales Rail. Co. 693 Pardo v. Bingham 1223 Pardoe v. Price 389,391,392,905 Pardow v. Webb 825 Pargeter v. Harris 1386, 1392, 1393 Parham v. Randolph 405, 406, 1044 Paris C. Co. v. Crystal Palace Co. 1424, 1467 Parish v. Sleeman 473 Parish v. Stone 8, 26, 68, 533, 1080, 1094, 1095 r. Whitney 1399, 1400 v. Wilson 372 Park v. Baker 493, 494 v. Hopkins 1336 c. Johnson 30, 1437, 1459, 1470, 1487, 1489, 1496,1501 v. Morris &c. Co. 632 Parker v. Baker 222 v. Barker 331 v. Baylis 60 v. Brancher 281 v. Bristol & Exeter Rail. Co. 910, 941 v. Brown 439, 1017, 1382, 1398 v. Carter 53 v. Colcord 1170 v. Constable 448, 475 v. Crane 69 v. Crole 1299 v. Donaldson 306,1283 v. Dubois 171 v. Elder 205 if, Ellis 891, 1350 v. Flagg 682, 690, 691 v. Gossage 115 v. Great 'Western Rail. Co. 136, 683, 686, 687, 941 u. Ibbetson 156 !>. Ince 1300 o. Kendall 1268 v. Kendrick 572 v. Leigh 40 v. Macomber 364 v. Mitchell 522 v. Nichols 111 v. Nightingale 1384 v. Palmer 636, 651 v. Parmelee 425, 429, 430, 1058 v. Patrick 567 v. Perkins 1192 v. Pringle 649, 652 v. Rawlings 618 v. Rolls 81 7 v. Smith 1436, 1452, 1453, 1457 v. Staniland _ 183, 415 v. Taswell 447, 1456, 1474, 1509 v. United States 880 v. Wallis 557 v. Watson 783, 1109 v. Way 226 v. Winlow 310 v. Wise 1130, 1357 Parkes v. Great Western Rail. Co. 883 TABLE OF CASES. CXXXV Parkes v. Smith 1180, 1182 Parkhain t. Hurst 1303 Parkhurst i>. Dickerson 45, 1359, 1365, 1367 v. Smith 94, 104,106, 111, 119 v. Van Cortlandt 1430, 145G Parkin v. Carruthers 329, 361 v. Fry 340 v. Thorold 433, 434, 1068, 1069, 1507 Parkins v. Howard 1332 Parkinson v. Collier 143 v. Hanburv 403, 670 v. Lee 631, 636 Parks v. Alta Calif. Tel. Co. 684, 725 v. Hall 596, 597 v. Ross 3S6 v. Wilson 1482 Parmeter v. Burrell 831 Parnham v. Hurst 1418 Parr v. Applebee 1467 Parris v. Roberts 538 Parrott v. Thatcher 117, 143, 1338 Parry v. Great Ship Company 1060 v. House 462 v. Nicholson 1163 v. Roberts 917 Parsons v. Alexander 1008 v. Armor 285 v. Camp 509 v. Dickinson 536 v. Hardy 682, 690, 702, 71 1 v. Hill 222 v. Martin 296 v. Monteath 690, 691 v. Parsons 225, 226 v. Sexton 649 v. Thompson 975, 990, 1056 v. Walter 752 v. Webb 286 v. Winchell 867 Partington v. Butcher 1245 Parton v. Crofts 94, 550 Partridge v. Dartmouth College 669, 802 v. Sowerby 1079 Pasey v. Bullitt 353 Pasley v. Freeman 579, 581, 628, 629, 639 Passmore v. Birnie 814 Patapsco Ins. Co. v. Smith 301, 1372 Patch v. King 1256 Patchin v. Swift 92, 1061 Pate v. Henry 684, 702 v, McClure 805 Paterson v. Gandassequi 301, 305, 309 v. Powell 944, 946, 1009 Paterson v. Tash 297 v. Wallace 858 v. Zaehariah 363 Pateshall v. Tranter 649 Patmore v. Colburn 1372 Paton v. Brebner 1490 v. Duncan ' 634, 656 v. Rogers 1068 Patorni v. Campbell 915 Patrick v. Grant 106, 117 v. Putnam 860, 1081 v. Shedden 88 Patridge v. Ballard 1162 Pattee v. Greely 582, 584, 588, 589, 1004, 1019 v. Harrington 225 v. Mores 321 Patten v. Ellingwood 263 v. Fullerton 1096 v. Gurney 348, 581 v. Hood 86, 89 v. Moore 1436 v. Pearson 670 v. Rea 860, 861, 866 <;. Smith 538, 573 v. Thompson 609 Patterdon v. Goodrich 431 Patterson v. Bloomer 1474 v. Choate 1248 . v. Cobb 1239 v. Gage 844 v. Gaines 1215 v. Grace 413 v . Long 1443, 1490 v. Mertz 1474 v. Patterson 798 v. Stoddard 454 Pattison v. Belford Union, Guar- dians of 765 v. Blanchard 325 v. Hull 145, 1110, 1111, 1114 Pattison's Appeal 416 Pattonw. Ash 1105 i>. McClure 1451 «. McGrath 682,690,1261 v. Nicholson 259 Paulu. Dod 615,1142 v. Frazier 789 v. Hadley 1042 v. Hard wick 655 v. Nurse 1389, 1398 v. Young 1490 Paul &c. v. Brown 425 Pauling v. London & North West- ern Rail. Co. 384 Pawle v. Gunn 883 Pawlet v. Rutland & Wash. R. R. Co. 862, 863 Paxton v. Newton 1431 CXXXV1 TABLE OF CASES. Paxton v. Popliam 9 Paye v. Godden 369 Payler v. Homevsham 118, 121, 1150 Payne v. Banner 4S4 v. Brecon, Mayor of 1002 v. Burridge 473 v. Chapman 948 e. Eden 994, 1051 v. Graves 1495 v. Hathaway 1235 v. Ives 22, 109, 774 v. Jenkins 169 v. New South Wales &c. Navigation Co. 22 v. Rodden 626 i. Rogers 1154 v. Shadbolt 597 v. Smith 291 .'. Whale 656, 924 c. WiL-on 740 Pay nter v. James 113 v. Walker 1280 v. Williams 71 Paynton v. Kirby 659, 661 Payson v, Whitcomb 902 Paytavin v. Winter 1337 Peabody v. Peters 1268 v. Tarbell 1421, 1422 Peach v. Kay 137 Peachy v. Rowland 864 Peacock v. Harris 967, 969 v. Jeffery 1274 v. Monk 149 v. Peacock 319, 320, 322, 331, 359, 796 ». Penson 1442,1467,1470, 1483, 1490 v. Pursell 1137 Pearce &. Blackwcll 645 ,.-. Brooks 582, 981 v. Chamberlain 359 v. Cheslyn 169 v. Colder 444 v. Davis 879, 1105 v. Rogers 288, 289 <.'. Zimmerman 1264 Pearl v. Deacon 786 ». Wells 1147 Pearle v. Unger 73 Pears v. Laing 1228 Pearsall v. Dwight 128, 133, 134 v. Summerset 772 Pearse v. Sharr 451 Pearson v. Dawson 598 v. Duckham 892 v. East 1452 v. Henry 374, 375 v. Lord 928, 945 v. Parker 740, 880, 890, 1350 Pearson v. Skelton 340, 898 o. Wheeler 440 v. Williams 1318 Pease v. Barber 953 u. Gibson 1363 v. Gloahec 567, 608 v. Hurst 767, 1252, 1257 ■ Peaslee v. Breed 892, 1257 Peate v. Dicken 45, 168, 591, 1381 Peay v. Poston 775 Peck v. Barney 743^ 744 ... Botsford 1248, 1258, 1264 v. Brings 996 v. Ellis 897 v. Harriot 286, 296 v. Hubbard 1061, 1204 v. Knox 496 v. Land 572 v. Ledwidge 67 v. Neil 729, 730 v. Woodbridge 946 Peckham v. Barker 423 v. Faria 751 v. North Parish in Hav- erhill 139, 383, 1350, 1354 Pecks v. Mayo 960 Pedan v. Hopkins 830 Pedder v. Watt 1109 Pedicord v. Hill 1119 Peek v. North Staffordshire Rail. Co. 96, 691 Peeks v. Mayo 133 Peele v. Northcote 276 Peer v. Humphrey 535, 567 Peers v. Lambert 406, 1493 Peet v. McGraw 675 Peeter v. Carter 1062 Pegg's Claim 102 Peigne v. Sutcliff'e 207, 209 Peirce v. Ruley 51 Peirsu v. Bowles 1197 Peisch v. Dickson 116, 148, 804 Peixotte v. McLaughlin 728 Pell v. Daubeny 874 Pellecatt v. Angell 584, 987 Pelletreau v. Rathbone 373 Pellew v. Wonford, Inhabitants of 1064 Pelley v. Rawlins 58, 215 Peltier v. Collins 638, 645 Pember v. Mather 1459 Pemberton v. Chapman 1099 v. King 496, 497, 500, 501 v. Oakes 1116 v. Vaughan 164, 984 Pembroke Iron Co. .'. Parsons 117, 1060 Pendall .>. Rench 689 Pende v. Fobes 638 TABLE OF OASES.. CXXXV11 Pendergast v. Adams Express Co. 706 Pendergrast i>. Foley 1222 Pendleton v. Bank of Kentucky 383 v. Dyett 465 o. Empire Stone Dress- ing Co. 797 Penfold l\ Abbott 79, 1389, 1395 Penniston v. Wall 879 Penley v. Watts 470, 1328 Penn v. Baltimore, Lord 47, 1427 v. Bennett 220, 1262 v. Hayward 1427 Pennell v. Aston 909 v. Attenborough 671 v. Stephens 1296 Penniall v. Harborne 433, 1060 Pennifbrd v. Hamilton 166 Pejmiman v. Hartshorn 6, 97, 548, 549, 1331 v. Patchin 900 i>. Roteh 1217, 1220 Pennington v. Gittings 59 v. Yell 816, 817, 821 Pennock v. Ela 433, 1483 v. Freeman 1235 Pennock's Appeal 407 Pennoyer v. Watson 767 Pennsylvania &c. Co. v. Delaware &c. Co. 1424 Pennsylvania Railroad Co. v. Hen- derson 696, 727 Pennsylvania Railroad Co. v. Mc- Closky 692 Penn. & Del. & Md. Steam Nav. Co. v. Dandridge 292 Penny v. Black 319 v. Brice 1226 f. Corwithe 1166 v. Porter 1061 v. Watts 1437 Penobscot & Kennebec R. R Co. v. Bartlett 131 Penrose v. Curren 209 Penry v. Brown 502 Penton v. Robart 501 Pentz v. Stanton 304, 311 People v. Bartlett 1080 v. Buckland 992 v. Co. of New York 1114 v. Gasherie 953 v. Hardenburg 821 v. Johnson 60 v. Kendall 207, 208 v. Lambert 129 v. Russell 779 v. Shall 5, 24 «. Tioga 1358, 1364 v. White 413 People, The, v. Baker 1106 People, The, v. Mercion 1464 Pepper v. Burland 829 v. Marshall 267 *. Whalley 1170 Peppercorn v. Peacock 1498 Peppin v'. Cooper 763 Peppinger v. Lowe 22, 790 Pequawket Bridge v. Mather 1168 Percival v. Spencer 1338 Percy v. Millaudon 667, 808, 817 Perez v. Oleaga 1034, 1311 Perfect v. Musgrave 145 Perham v. Reynal 1257 Perine v. Hankinson 335 Perkins v. Bennington 1264 v. Burbank 1215 v. Coddington 1390 v. Douglass 540 v. Eaton 735, 919 v. Ede 1493 v. Gilman 1147 v. Hart 969 v. Hersey 790 v. Hyde 919 v. Lockwood 62, 63, 1051, 1101, 1123, 1159 v. Lyman 984, 1314 v. Parker 1365 e. Portland, Saco & Ports- mouth K. R. Co. 704, 705, . 706, 707 v. Savage 945 u. Washington Ins. Co. 276, 282, 379, 1432 v. Wright 1470 Perley v. Balch 648, 651, 653, 1090, 1093, 1094, 1141 v. Little 1239 v. Spring 752 Perrin v. Protection Ins. Co. 117 v. Wilson 203 Perrine v. Cheeseman 5 Perring v. Hone 180, 336, 340, 1163 Perris v. Roberts 1117 Perry v. Attwood 1110 v. Carr 472, 509 v. Harrington 1172 v. Jackson 353, 1223 v. Osborne 324 v. Slade 964 v. Smith 623 v. Swasey 76 v. Thompson 695 Person v. Carter 352, 353 Persons v. Jones 1235 Perth Amboy Manuf. Co. v. Con- dit 103 Peru v. Turner 15 Petch v. Lyon 964 cxxxvm TABLE OF CASES. Petoh v. Tutin 529 Peter v. Beverly 1135 l'. Complon 102 ... Rich 786 v, Steel 796 Peterborough r. Lancaster 930 Peters v. Anderson 1111, 1114 v. BaHister 286, 292, 556, 608 v. Barnhill 880 t. Brown 1250 ..Dekplaine 1506 u. Farnsworth 287, 294 r. Fleming 196, 198 v. Gooch 1093 v. Lord 200 ... McKeon 436,437 v. Westborough 100, 101 Peterson v. Ayre 1327, 1331 i. Edmonson 67 v. Mayor of N. Y. 22, 378 Pether t>. Skelton 1200 Peto v. Blades 628,911 o. Brighton, TJckfield &c. Railway Co. 1467 v. Hague 281 Petre v. Kspinasse 1475 Petrie v. Bury 1341, 1342 v. Dawson 495 v. Puncombe 957, 1442 v. Hannay 377, 896 Petties v. Soame 289 Pettengill i: Evans 493 Pettingill v. McGregor 314 Petty v. Anderson 232, 239 v. Cleveland 1265 Pexpoint v. Thimblebyc 1062 Peytoe's case 156, 1123, 1129 Peyton v. Watson 660 Peytona, The 709 Pfiel v. Vanbatenbcrg 1105 Phalan v. Stiles 1379 Phelps v. Bostwick 148 v. Cutler 536, 563, 574 v. London & North West- ern Rail. Co. 699, 1326 if. Phelps 229, 251 v. Prothero 74, 303, 1311, 1313 v. Stewart 1239 v. Townsend 22, 52, 80, 89, 1399 v. AVorcester 196, 198, 199, 203 Phone v. Popplewell 459 Phettiplaee v. Sales 572 Phettyplace v. Steere 35 Philadelphia & Reading R. R. Co. v. Derby 664, 666, 727, 866 Philadelphia &e. Railroad Co. v. Howard 1327 Philbrook v. Belknap 82, 422, 844, 852, 853, 854 Philbrook v. Delano Philby v. Hazle Phillimore v. Barry Phillips v. Allen v. Astling v. Berger v. Berick o. Claggett 9 810 552 1303 781 1428 1101, 1172, 1173, 1180 v. Berryman 1171 v. Bistolli 553, 554, 559, 1023 v. Blake 1107 v. Briard 156 e. Broadlev 1220, 1221, 1230 v. Bucks, j)uke of 1481, 1482 v. Caldcleugh 432 v. Canterbury, Viscount 871 1154, 1358, 1361, 1368 v. Clark 694 v. Clift 843 v. Crutehlcy 791 v. Dickson 788 ■-. Earle 686, 697, 699, 709 v. Edwards 1440 v. Fielding 424 v. Graves 1439 v. Green 194, 219 v. Hartly 443 v. Hunter 1177 v, Huth 298, 299 v. Ives 737 v. Jones 800 v. McCurdy 55 *. Morrison 1062 v. Moseley 455 v. Pearce 398 v. Peters 1250 v. Purington 324 v. Stevens 67, 468 u. Thompson 1421, 1430, 1456 D.Ward 1176 Phillipson v. Hayter 232, 238, 239 v. Mullanphy 499 Philliskirk v. Pluckwell 224, 228, 257 Phillpott v. Wallett 791 Philmore v. Hood 1038 Philpot v. Briant 63, 372, 779 v. Jones 1111, 1115 Philpotts v. Evans 621, 1080, 1331 v. Philpotts 1037 v. Reed 1302 Phippen v. Stickney 407, 408, 409 Phipps v. Buckman 1040 v. Child 1460, 1463, 1464 v. Seulthorp 460 Phyfe v. Wardwell 1430, 1459 Piatt ii. Oliver 346, 409, 982 Picard v. Hine 1442 Piekard v. Bailey 129, 130 TABLE OF CASES. CXXX1X Pickard v. Bankes 903 v. Sears 8 v. Smith 861 v. Valentine 1232 Pickering v. Busk 277, 285, 289 v. Dowson 639, 645 v. Ely, Bishop of 1431 i'. Fisk 128 v. Gunning 198 v. Pickering 232, 233, 373, 433,434 Picket v. Downer 709 Pickett v. Laud 779 Pickford v. Grand Junction Rail. Co. 683, 687, 688 v. Parson 1399 Pickin v. Graham 54 Pickstock v. Lister 576 Picquet v. Curtis 1232 v. M'Kay 1176 Pidcock v. Bishop 776 Piddington v. South Eastern Rail- way Co. 941 Pidgeon v. Burslem 806 Pidgin v. Cram 211, 212, 242, 243, 245,246,247 Pierce v. Burnham 252 v. Cameron 654 v. Conant 939 v. Duncan 946 v. Fothergill 955 v. Fuller 3, 984 v. Kearney 1354 v. Paine 81, 82, 102, 422 v. Parker 1 149 v. Pass 355 v. Rowe 958 v. Schenck 672, 831 v. Smith 1210 v. Tobey 216, 1256 v. Woodward 984, 1329, 1336, 1338 Piercy v. Adams 1447 Pierpont v. Graham 345, 352, 359 Pierrepont v. Barnard 416 Pierson v. Hooker 55, 345, 346, 1152, 1351 1283 940 1222 8, 117 Pike v. Galvin v. Munroe v. Stephens v. Warren Pilford's case 1382, 1388, 1399 136 1296 1248, 1256 1334 Pigeon v. Osborne Piggott v. v. Rush v. Stratton v. Thompson 76, 303, 315 Root's case 1161, 1164, 1168 Pi|ot v. Cubley 670, 1191 Pikard v. Cottell 68 Pikey. Balch 408,-552 v. Brown 1373, 1381 v. Fay 149, 151, 153, 159 v. Gage 1179 Pilkington v. Cooke 869, 872 t>. Green 993 v. Scott 22, 798, 842, 983, 985 Pillans v. Mierop 25, 29 Pilmorc v. Hood 1049 Pinchin v. London & Blackwall Railway Co. 1433 Pinchon's case 837 Pinchon v. Chilcott 963, 967 Pinckard v. Ponder 957 Pinckney v. Singleton 954, 959 Pindall v. Bank of Marietta 958, 1111 v. North W. Bank 931, 1106, 1107 Pindar v. Ainsley 470 Pinero v. Judson 442, 515 Pingree v. Coffin 439, 1421, 1422, 1423, 1427 Pingry v. Washburn 995 Pinhorn v. Souster 454 v. Tuckington 956 Pink v. Scudamore 612 Pinkerton v. Bailey 1263 v. Woodward 674, 676 Pinkston v. Huie 439 Pinley v. Bagnal 811 Pinnel's case 1102, 1381 Pinner v. Arnold 182, 183 Pinney v. Barnes 1171, 1172 v. Gleason 623 Pinto v. Santos 916 Piper v. Manny 675, 676 v. Menifee 808 v. Piper 373 Pipkin v. James 546 Pippin v. Sheppard 808 Pitcairn v. Ogbourne 1505 Pitcher v. Bailey 887 v. Barrows 361, 362 v. Hennessey 154 v. Livingston 621 v. Wilson 842 Pitkin v. Noyes 46, 100, 416, 542, 543 v. Thompson 227, 1302 Pitman v. Foster 226 v. Poor 419 v. Woodbury 468 Pitt v. Berkshire Life Ins. Co. 8 i). Bridgwater 37 v. Chappelow 1303 v. Coombes 947 v. Shew 495 v. Smith 192 cxl TABLE OF CASES. Pitt ». Yalden 817 Pittam v. Foster 251,377,1237,1264 Pitts v. Beckett 98, 551 v. Holmes 1357, 1359 v. Mower 303, 304 v. Tilden 957 v. Waugli 329, 330 Pittsburg &c. Turnpike Co. v. Commonwealth 1093 Place v. Dolegal 7G7, 1347, 1350 v. Fagg 491 v. Potts 1100 Plaisted v. Boston & Kennebec Steam Navigation Co. 682, 689 Planche v. Colburn 822, 830, 1089, 1091 Planter's Bank v. Cameron 284. 293 c. Sharp 276, 382 i>. Stockman 1112 Planters' & Merch. Bank v. Chip- ley 1172 Piatt v. Bromage 934 !>. Hibbard 668, 680 Platts t>. Lean 928 Playford v. Playford 1503 o. United King. Tel. Co. 684, 685, 723 Pleasant v. Watkins 481 Pleasants v. Pendleton 520, 521, 525 Pledge v. Buss 773 Plimley v. Westley 1144 Plomer v. Long 1114, 1115 Plowman v. MeLane 1208, 1210 Pluckwell v. Wilson 728 Plumer v. Lord 8 v. Plumer 462, 509 v. Smith 992 Plummer v. Webb 213, 214 v. Woodburne 1174,1265 Plummett v. Kussell 276 Plunkett v. Meth. Epis. Soc. 1482 Plymouth v. Carver 1382, 1383, 1399 Plymouth Bank v. Bank of Nor- folk 555 Poag v. Poag 803 Pochin v. Powley 398 Pocock v. Russen 810 Poignard v. Livermore 364 v. Vernon 892 Poland p. O'Conner 423 Pole v. Harrobin 270, 273 Polglass v. Oliver 1196 Polhill v. Walter 313, 1044, 1.045 Pollard v. Clayton 1426, 1434, 1467, 1508 v. Schaffer 67, 468, 514, 1387 v. Yoder 955 Pollock v. Stables 883 v. Stacey 459 Pomeroyu. Ainsworth 131, 960 v. Bailey 25 v. Donaldson 682, 689 v. Drury 430 v. Winship 422 Pomfret v. Rieroft 470 Pond v. Williams 1154, 1253 v. Wyman 840, 856 Ponsford «>. Walton 179 Pontet v. Basingstoke Canal Co. 389 Pontifex v. Wilkinson 1089 Pool v. Adkisson 665, 911 v. Bousfield 991 v. Pratt 222 Poole's case 495,497,498,500,501 Poole v. Adams 1484 v. Bentley 442, 443 v. Hill 424, 427, 1345 v. Middleton 1426 8. Shergold 406, 1484, 1494, 1501, 1503 jj. Tumbridge 1066,1069,1190, 1191 v. Willatts 1308 Pooley v. Brown 1092 v. Budd 1424, 1426 u. Goodwin 913 v. Harradine 145, 784 Poolley v. Gilberd 40 Poor v. Hazleton 226 Poorman v. Crane 1177 Pope r. Backhouse 397 v. Baridge 1075 v. Biggs 456, 466 v. Devereux 419 v. Garland 1477 v. Harris 1483 v. Linn 588 v. Nickerson 131 v. Roots 1503 u. Simpson 1507 v. Tunstall 1130 Popham v. Eyre 1481 Poplett u. Stockdale 836, 981 Popley r. Ashley 569 Porcher v. Gardner 424 Pordage v. Cole 125, C19,»1094 Porritt v. Baker 593 Port v. Williams 1039 Portalis" v. Tetley 299 Porter v. Ballard 1366 v. Bristow 364 v. Bussey 953 v. Doby 1166 v. Hildebrand 699 v. Hill 1238 u. Langhorn 751 v. McClure 320 v. Munger 251 TABLE OF CASES. cxli Porter v. Neokervia v. Noyes v. Patterson v. Pettengill v. Porter v. Sawyer t>. Stewart v. Taylor Porterfield c. Humphreys Porthouse v. Parker Portland Bank v. Brown 1278 430 281 538, 540 264 736 1087 1099 701 359 1111, 1112, 1113 r. Hyde 344 Portman v. Middleton 1325, 1326 v. Mill 1493, 1496 Portmore r. Morris 154, 1463 Portmore, Earl of, v. Bunn 1392 Portsmouth Livery Co. v. Watson 383 Post v. Kimberley 320, 321 v. Vetter 466 Postmaster v. Norvell 1117 Postmaster-general v. Furber 1116, 1117 v. Eeeder 765 Pothonier v. Dawson 670 Pott v. Beavan 277, 959 v. Clesg 878, 1216, 1236, 1247 v. Eyton 319, 326, 327, 334 v. Flather 1331 v. Lesher 515 Potten v. Tubb 583 Potter v. Brown 1302 v. Deboos 791 v. Everett 928 v. Faulkner 85-7, 859 v. Irish 90 v. Lansing 722 „. Mavo 821 v. Sanders 18, 1436, 1446 t>. Sturges 317 K Thornton 401 v. Titcomb 1093 v. Yale College 303 Potts v. Bell 1000 v. Thames Haven Co. 1446 v. Whitehead 15, 18 Poucher v. Norman 834, 835 Poulson ». Ellis 425 Poulter v. Killingheek 421, 508 Poultney v. Holmes 459 Poulton v. Lattimore 647, 649, 650, 1331 Pounsett v. Fuller 435 Pourie i<. F)-azer 285, 295 Pow v. Davis SI 3 Powell v. Bradlee 566 v. Brown 29 v. Divett 1162 v. Edmonds 153,154 Powell v. Graham 375, 1413 v. Great Western Railway Co. " 1430 v. Guy 954 v. Henry 285 v. Morton 152 v. Hoyland 271, 566 v. Jessop 420 v. Little 1097 v. Lovegrove 1451, 1452 v. Milbank 949 v. Monson & Brimfield Manuf. Co. 498 v. Myers 682, 702, 703, 714, 728 v. Xewburgh 281, 745, 806 v. Ecus 906 v. Smith 884, 889, 1023, 1474 v. Thomas 1455 v. Waters 779 Power v. Barham 640 v. Butcher 880, 1132, 1171 v. Walker 90 v. Wells 656 Powers c. Davenport 682, 685 v. Fowler 15, 761 v. Freeman 46 v. Hale 46, 1474, 1502, 1504 i;. Lynch 131 ji. Mayo 1470, 1476, 1502 v. Mitchell 668 v. Nash 889 v. Ware 1168, 1169 Powis v. Smith 1346 Powhs v. Dillcy * 1368 v. Hitler 683 v. Innes 1359 v. Page 363 Powley v. Newton 376 v. Walker 73, 471 Pownald t>. Ferrand 70, 885 Poyntz e. Fortune 1509 Prather v. Parker 572 Pratt v. Adams 982 v. Barber 6 v. Farrar 477 v. Hawkins 1265 v. Humphrey 759 v. Hutchinson 1012 v. Langdon 103, 326 v. Law 1494 v. Ogdensburg & Lake Cham- plain 11. It. Co. 705 v. Parkman . 556 v. Philbrook 626 v. Taylor 229 v. Vizard 942 . v. Willey 1098 Pray v. Burbank 582, 1004 cxlii TABLE OF CASES. Pray v. Garcelon 1240 v. Gorham 214 Prebble v. Boghurst 31, G7, 116, 1321 Preble v. Baldwin 420, 759 v. Bottom 1001 Prehn v. Roval Bank of Liverpool 1325 Prendergast v. Eyre 1492, 1496 Prentice v. Achorn 192, 1465 v. Decker 696 Prentiss v. Russ 160, 1042, 1043 v. Savage 131 o. Sinclair 362 Presbrey v. "Williams 1229 Prescott v. Brown 224, 229, 257 V. Elm 474, 482, 4S3, 485 v. Flinn 284, 288 v. Holmes 626 v. Hubbell 1135 v. Hull 1366 v. Locke 522, 542, 557 v. Norris 207, 208, 584, 591, 594, 977 v. Parker 373, 956 v. Wright 581, 1039, 1040 Presley v. Davis 213 Presser v. Hildebrand 433, 1437, 1487 Preston v. Boston 941, 942 v. Christmas 1131, 1146 v. Liverpool, Manchester &c. Railway 995 v. Mcrceau 154 v. Tinney 828 v. Walker 958 Prestwick v. Marshall 224, 232 Pretty r. Solly 1493 Prevost v. Gratz 1165, 1166 Price v. Alexander 352, 353 V. As^hcton 1455 v. Barker 776, 1155 v. Barry 1379 v. Berrington 402, 1441, 1449 v. Boyd ' 1173 v. Dyer 1147, 1459, 1460, 1464, 1505 v. Easton 75 v. Edmunds 145, 783, 784 v. Furman 220, 1093 v. Great Western Rail. Co. 960 v. Green 187, 1317,1318 v. Griffith 96, 1456, 1487, 1492 v. Groom 319 v. Hollis 870 v. Jones 538 v. Justrobe 1103 v. Lea 533 . Trimen 314 Randle v. Gould 989 i>. Harris 29 Randlcson i: Murray 861, 867 Eandoll v. Bell 909 Randolph v. Hollingsworth 295 v. Kinney 1382,1399 v. Perry 141 v. Randolph 881 v. "Ware 61 Randon i>. Barton 622 c. Toby 1255 Ranelagh, Lord a. Melton 1069 Ranger ' r. Great Western R. R. 1179 Ranken r. Deforest 301 Rankin r. American Ins. Co. 143 i. Blackwell 1166, 1167 i>. Quids 743 8. Goddard 1177 c. Hamilton 177 r. lluskisson 1433 v. Lay 1509 v. Maxwell 1421 v. AVoodworth 1065, 1231 Rann v. Hughes 5, 24, 64, 372 Rannic v. Irvine 986 Ransome, re 687 Rapelye v. Mackie 522, 524 Raper <>, Birbeek 1169 Raphael i*. Goodman 1036 i>. Thames Valley Rail- way Co. 1484 Rapp v. Palmer 289 Rapson v. Cubitt 863, 864 Rasberry v. Moyo 653 Rashdall r. Ford 1042 Rashleighf. Salmon 1334, 1335 v. Smith Eastern Rail. Co. 89 Ratcliffe v. Davis 670 Rathbon v. Budlong 308, 309, 311, 386 Rathbone p. Stocking 899 v. Warren 7 76, 782 Rathbun r. Ingalls 816 Raw v. Cutten 365, 391 Rawcroft <•, Lomas 1242, 1245 Rawlings, ex parte 1306 Rawlings v. Bell 1044, 1045 c.Tcnkins 115 v. Turner 446 v. Vandyke 211, 242 Rawlings v. Wickham 1035, 1037, 1014, 1044, 1046 Rawlinson v. Clarke 109, 323, 1318 v. Oriel 1169 v. Shaw 1157 Rawson v. Eicke 456 v. Johnson 619, 1072, 1085 v. Walker 145 Rawstorne t>. Gandell 1154, 1368 v. Wilkinson 870 Ray v. Catlett 1019 v. Jones 1308 v. Young 81, 422 Raymond's, Sir Charles, case 326 Raymond v. Baar 931,1107 v. Bearnard 830, 921, 924, 1185 v. Crown & Eagle Mills 301, 302, 308 <■. Fitch 1388, 1398, 1409 o. Isham 951, 952 v. Johnson 134 u. Loyl 198, 210, 211, 214 v. RoBerts 126, 150 v. Squire 1368 v. White 501 Rayne v. Orton 1133 Rayner v. Grote 307 v. Julian 1444 v. Linthorne 316, 553 Reab v. M'Allister 953, 959 i. Moor 847 Read e. Brookman 1169 v. Goldring 1186, 1192 i). Hutchinson 569,617 v. Legard 232, 233 e. Menaieff 111 v. Nash 754 v. Rann 82, 89, 116, 803 v. Wilkinson 1246 Reader v. Kingham 759 Reading v. Menham 680 Real Estate Bank v. Hartfield 1256 Reardon v. Swaby 169 Reason v. Wirdnam 799 Reay v. Richardson 152, 1052 v. White 1058, 1160 Rector v. Mark 953 Redding v. W r ilkes 1447, 1453 Reddiagton v. Henry 422 Reddish v. Watson 782 Rede v. Farr 1073 v. Oakes , 1468 Redfield v. Davis 276 Redhead ». Cator 312, 761 v. Midland Rail. Co. 726, 730 Redington v. Roberts 566 Redman v. Sanders 811, 996 TABLE OF CASES. cxlv Redmond v. Liverpool &c. Steam- ship Co. 708 Redpath u. Roberta 460 v. Wigg 313 Redshaw v. Balders 1002 Redwine v. Brown 1400 Reece c. Rigby 818 Reed v. Bartlett 1131 v. Batchelder 205, 216 v. Blades 574 v. Boardman 1111 v. Boshears 215 v. Chambers 433, 1506 v. Davis 1336 t>. Deere 1 75 v. Evans 92 v. Field 126 v. Fullum 765 v. James 949 v. Jewett 571 v. Lukens 1484 v. M'Grew 1093 v. Mesteer .615 v. Nevins 1368 v. Noe 405, 1488 v. Reed 957 v. Scituate 828 . v. Shaw 1146 v. United States Express Co. 705 v. Upton 538, 1136 v. Van Ostrand 637 v. White 1379 v. Wood 637, 645, 646 Reedie u. London & North West- ern Railway Co. 862,863, 864, 867 Reeis v. Scottish Equitable Ass. Co. 1047 Rees />. Berrington 781,783 v. Lines 826, 831 v. Perrott 475, 481 v. Smith 1421 v. Watts • 1279, 1280 Reese River Silver Mining Co. v. Smith 1044 Reeve v. Bird 460, 461, 1081 v. Conyngham, Marquis of, 242 b. Davis 834 v. Palmer 819 v. Whitmore 529 Reeves v. Butcher 592 v. Copper 669 v. Dickey 432, 1479 <}. Greenwich Tanning Co. 1509 v. Harris 539 v. Hearne 1122, 1124, 1233 v. Pye 96, 546 • v. Ship Constitution 679 v. Watts 78, 1306 Reformed Protestant Dutch Ch. v. Brown 51 Regent's Canal Co. v. Ware 1428, 1433 Regfrio v. Bragwiotti 651, 657, 658, 1328, 1329 Reg. v. Arkwright 113 v. Charretie 1016 v. Chawton 1027, 1064 y. Gompertz 179 v. Lord 200 i'. Nevill 120 v. St. Martin's Leicester 165 v. Smith 857 v. Stamford, Mayor of 379 v. Stoke-upon- Trent, Inhabi- tants of 138 v. Welch 22, 842 v. Whitmarsh 1013 Regnart v. Porter 45j!, 453 Regney v. Coles 431 Regshaw K. Matthews 360 Reichart v. Castator 1038 Reid v. Barber 626 v. Bartlett 1102 v. Dickons 1260 r. Dreaper 310 v. Fairbanks 117 v. Hollinshead 323, 335, 347 v. Hoskins 1067 k. Rensselaer Glass Man. Co. 951, 953, 959 y. Teakle 231, 232 Rcigard .-. McNeil 1474 Reigne v. Desfiortes 1245, 1264 Reilly v. Cavenaugh 816 c.Jones 1315 Reimers v. Dnice 88, 1177 Reinickcr r. Smith 192 Reis c. Scottish Equitable Assur- ance Co. 1312 Relf v. Rapp 697 Remington v. Linthicum 414 Renion c. Hayward 171,391 Renard c. Fiedler 935 Rcneaux v. Teakle 236 Renew r. Axton 1216 Rcnnell c. Kimball 797 Runner v. Bank of Columbia 142, 143, 145 Rennie v. Robinson 463, 515 v. Wynn 338 Reno v. Hogan 691 Renshaw o. . Griffith 1198 Rives b. Baptiste 1083 Rix v. Adams 740, 760 t. Smith 1104 P. Strong ' 1211 Rixon v. Eniary 130G Roach r. Perry 319 v. Quick 197 v. Rutherford 1495 v. Thompson 747, 894 v. Wadham 1394, 1395 Roache v. Pendegrast 343 Roade v. Kidd 1497 Robai-ds v. Hutson 255 Robarts r. Robarts 1220 c. Tucker 888, 1100 %lobb r. Mann 1484 t. Mudge 7G Robbins r. Ayres 1373 v. Bacon 1365, 1366 v. Eaton 216, 217, 218 v. Farley 1240 v. Fennell 820, 901, 1283 t>. Luce 1210,1211,1212 v. Otis 220 v. Parker 574 Roberts v. Barker ' 90, 145 v. Beatty 599, 617, 10G2, 1201, 1203, 1204, 1205, 1208, 1209 v. Berry 433, 434, 1068 v. Brett , 114, 1063 v. Bury Commissioners 1087 1275 v. Button 144, 314 i.. Garnie 1111, 1114 v. Gibson 1467 Robertson v. Fauntleroy 913, 915 v. French 106, 113, 120 v. Goss 1308 i". Great Western Rail- way Co. 1443 v. Jackson 132 v. Kennedy 681, 684, 689 v. Ketchum 286 v. Lawman 283 v. Livingston 295, 296 v. March 32, 51 c. Skelton 1485 v. Smith 346, 1155, 1354, 1357 v. Vaughan 542 v. Wait 75 Robeson v. French 588, 589, 1018, 1019 Robins v. Bridge 874 Robinson v. Anderson 319 c. Batcheider 155, 1194, 1203, 1210, 1212, 1213 e. Bland 128, 130 v. Charleston 934 v. Cook 1189 v. Cox 979 (.-. Cranshaw 992 v. Crowder 352 v. Davison 1484 v. Drybrough 162 v. Dunmore 684, 700 v. Ferreday 1195 v. Fiskc ' 106, 116 v. Garth 413, 414 v. Gould 36, 272 v. Green 69, 974, 1001, 1002 v. Greinold 235, 250 v. Hardman 437 v. Hawksford 1105 v. Heard 426 v. Hindnian 840, 843 TABLE OF CASES. cxlix Robinson v. Howard 586 Rodwell v. Phillips 183, 415, 417, 418 v. London & North Wes- Roe v. Doe 474 tern Rail. Co 722 v. Hayley 1385, 1389 v. Lyman 1268 v. Lees 449 v. Maedonnell 528, 575, V. Moore 767 1037, 1363 v. Osborne 551 v. Mears 737 V. Pearce 379, 380,478 v. Musgrove 403 V. Prideaux 475 v. Nahon 240 v. Ward 450, 475 v. New York Ins. Co. 801 V. Wiggs 481 v. Noble 1060 V. York 461 v. Off'att 775, 781 Roffey v. Greenwell 955 v. Page 1464, 1505 v. Henderson 419,496 v. Prescott 1177 v. Shallcross 1492 v. Purday 660 Roffy, ex parte 1216 v. Read 1139 Rogers v. Ackerman 643 v. Reynolds 253, 254 v. Atkinson 155 v. Robinson 1502 v. Batchelor 355 v. Rutter 316, 802, 1096 v. Bumpass 226 v. Sanders 848 v. Challis 1422, 1- ! v. Stewart 7 v. Coleman 1178 v. Stone 1410 v. Colt 103 v. Threadgill 41, 666 v. Eagle Fire Co of N. Y. v. Walker 1355 22, 89, 111 v. Wall 409 v. Hadley 159 v. Walter 679 v. Humphreys 456, 827, 1395, u. Ward 60; , 674, 1200 1396 v. Weeks 221 v. Hurd 216 v. Wheelright 1440 v. James 179 v. Wilkinson 330 v. Judd 1104 Robison r. Banks 873 v. Kingston 1055 Robley v. Brooke 319 v. Ivneeland 92, 127, 290, 294, Robson v. Collins 1459 751, 756, 761, 806 v. Curtis 342 v. Krebs 257 v. Druinmond 1088 v. Langford 1137 v. Godfrey 824 v. McDearmid 954 v. Hall 174 v. March 312, 315 v. Oliver 1144 v. Maw 880, 1289 v. Whittingham 1424 v. Mechanics' Ins . Co. 83, 142 Roby v. West 68, 582, 584, 594, 975, v. Pitcher 464 1001 v. Price 81, 375, 889 Roche v. Champion 1289 v. Rogers 1247 v. O'Brien 9S2 v. Saunders 1506 Rochester v. Randall 763 v. Spence 1414, 1415 Rochester, Dean &c. of, 0. Pierce 380 v. Steele 851, 857 Rockwell v. Wilder 343 v. Thomas 600, 601, 602 Rockwood v. Brown 1217 v. Tudor 1509 Roddam v. Morley 1228 v. Ward 1442 Rodger v. The Compt )ir D'Es- v. Warner 770 compte de Paris 608 v. Waterhouse 1498, 1499 Rodgers v. Maw 880, 1289 v. Weaver 929 v. Nowill 1043, 1334 v. White 295 u. Smith 627 Rogerson v. Ladbrooke 1276, 1280 v. Stophel 668 Rohan v. Hanson 1115 Rodick v. Gandell 1365 Rollback v. Pacific R. R. Co. 859 Rodman v. Hedden 1231 Roland v. Gundy 535 v. Zilley 1474 Rolfe v. Peterson 1318 Rodrigues v. Habershaw 645 i . Rolfe 1432 Rodriguez v. Heffernan 298 i). Watson 1138 cl TABLE OF CASES. Rolin v. Steward 80, 1322 Roll v. Raguet 976, 992 Rollason v. Leon 445 Rollins i). Bartlett 1168 v. Stevens 350, 351 Rollman v. Baker 955 Rolls v. Yate 1343, 1351 Rolph v. Crouch 446 Rondeau v. Wyatt 541 Rood v. Jones 36 Roof v. Stafford 194, 206, 208 Rooney v. Gillespie 477 Roons v. Miller 951 Root v. French 567 v. Great Western Railway Co. 70G Rooth v. North Eastern Rail. Co. 693 v. Wilson 665 Roots v. Dormer, Lord 173,406,532, 563 Roper p. Coombes 445 v. Holland 391, 392, 905 v. Johnson 1330 v. Lendon 1183 Ropes v. Lane 524 Roscoe v. Hale 1259 Roscorla v. Thomas 71, 72, 647 Rose v. Beatie 637 v. Bowler 375 v. Clarke • 1360 v. Daniel 222 v. Edwards 611 v. Hall 62, 63, 1102 v. Hart 1284, 1287 v. Main 1022 v. Maynard 582 v. Poiilton 6, 344 v. Savory 969 v. Shore 929 v. Sims 1286 v. Truax 973, 995 v. Watson 1454 Roseboom v. Billington 1266 Rosevelt v. Stackhouse 1146, 1148, 1150 Rosewarne v. Billing 1009 Ross, ex -parte 1216 Ross v. Drinker 321, 322 v. Hill 673, 683 v. Knight 1277 v. Milne 75 v. Sadgebeer 984 v. Turner 1382, 1383, 1388, 1398 v. Union Pacific R. R. Co. 1467 v. U. States Tel. Co. 723 v. Watson 1463 v. Welch 614 Rosseau u. Bell 1110 Rossell v. Cottom 664, 862 Rosseter v. Cahlmann 587 Rossiter v. Chester 711 u. Rossiter 285, 293, 311 Rosslyn v. Muggeridge 1159 Kosson v. Hancock 1042 Roster v. Eason 1270 Rotch v. Hawes 681 v. Miles 239, 246 Roth v. Schloss 94 7 Rothery v. Munnin^s 1220, 1230 Rothschild v. Carrie 131, 132 v. Royal Mail Steam Packet Co. 690 Rothwell v. Humphreys 346 Rounds v. Baxter • 844 Rourke v. Short 1007 Routledge v. Grant 14, 16 v. Hislop 1171 u. Ramsay 1246 Row v. Culver 7 79 v.Dawson 1360 Rowan v. Adams 976 Rowe v. Hasland 255 v. Hopwood 221 v. Piekford 605 v. Smith 921, 946 a. Teed 1458 v. Whittier 1373 Rowe Railroad v. Sullivan 708 Rowland v. Hall 948 Rowlandson, ex parte 331, 1357 Rowley v. Bigelow 566, 567, 568, 601, 602, 605 v. Home 715 u, Stoddard 346, 1154, 1156, 1357 Rowson v. Erie 821 lioval British Bank u. Turquand 385 Royce r. Allen 308, 313. 315 r. Barnes 1283 Royle v. Wynne 1433 Rubery v. Stevens 374 Ruble v. Turner 1132 Ruck v. Hatfield 608 Rucker v. Cammeyer 99, 550, 554 v. Lowther 431 Ruddock v. Marsh 232 Rn.loe v. Birch 1281 Ruffe. Bull 1222, 1226, 1232 Ruffin, ex parte 360 Rii»g e. Minctt 523 v. Weir 615, 616 Ruggles v. Keeler 1223 v. Lesure 418 v. Paticn 1072 Rumball v. Munt 397 Rummens v. Robins 15, 1458 Rumney v. Elsworth 881 TABLE OF CASES. cli Rumney v. Keyes 211, 232, 239, 242, 246, 247 Rumsey v. George 224 v. North Eastern Rail. Co. 85 v. Tufnell 871 Rundel i>. Kcoler 196 Runlett v. Moore 1125 Runyan i>. Caldwell 680 !'. Coster 383, 401 Rupp p. Sampson 550 Rusby v. Scarlett 288, 289, 290 Rushford v. Hadfield 671 Ruston v. Craven 1500 Russell r. Babcock 756 v. Beck 24 v. Bell 1285 v. Brannan 1042 v. Brooks 228 v. Carrington 522 v. Clark 1044 v. Clarke 743 v. Coffin 111 v. Cook 47 v. Copeland 438 v. Copp 1239 v. Cowles 22, 790 v. De Brandeira 825, 1275 v. De Grand 971, 1004 v. Fillmore 669 v. Goss 1239 v. Hudson River R. R. Co. 858, 859 v. Kitchen 130 v. Langstaff 137 v. Lee 206 v. Lyttle 1127 v. Minor 539, 555 v. Moseley 741 v. Nicoll 522, 1209 v. Nieoloplilo 643 v. Ormsbee 1062, 1205 v. Palmer 817 v. Pellegrini 1183 V.Phillips 111,295 v. Pyland 736 o. Richards 416, 499 o. Rogers 160 v. Skipwith 259 v. Slade 101, 102, 842 v. Smyth 88 Rustu. Gott 736, 919 v. Larue 811, 996 Rutgers v. Lucet 42, 665, 666, 797 Rutherford v. Mclvon 930 v. Ruff 193 Rutland i). Hudson 1209 Rutland's, Countess of, case 141 Rutland & Bur. R. R. Co. v. Cole 304 Rutledge v. Lawrence 439 Rutlitt" p. Trout 92 Rutter v. Blake 649 v. Hebden 789 Rutty v. Benthall 1308 Ryall v. Rowles 1419 Ryalls v. Bramall 1406 Ryan i>. Anderson 1446 v. Cumberland Valley R. R. Co. 858 v. Dayton 837, 849, 850, 851, 853, 1074, 1078, 1081 v. Hall 160 v. Sams 241 v. Ward 1127 Ryberg v. Snell 608 Ryder, in re 211, 212, 213 Ryder v. Wombwell 195, 203, 238 Rylands v. Kreitman 1059 Ryle v. Swindells 1503 Ryley v. Hicks 446 Ryno v. Darby 1430, 1464 Sabin v. Harkness Sacheverell v. Froggatt Sackett v. Bassett v. Looinis v. Spencer Sadler r. Evans 492 1389, 1395 958 946 423 910 v. Hcnlock 861, 862, 863 v. Johnson 182 v. Leigh 305, 316 c. Nixon 340, 891, 895 v. Robins 88 Sage v. McGuire 1430 v. Wilcox 36, 92 Sager v. Portsmouth S. P. & E. R. R. Co. 684,689,690,691,692, 713, 714 Sailly v. Cleveland 75, 303 v. Gilmore 781 Sain r. Dulin 1422 Sainsbury v. Jones 1445 v. Matthews 415, 418 St. Albans, Duke of, v. Ellis 125 v. Shore 428, 1082 St. Albans Steamboat Co. v. Wil- liams 844 St. Albans Steamboat Co. v. Wil- kins 831 St. Andrews Bay Land Co. v. Mitchell 379 St. Aubyn v. Smart 348 Sainter». Fergusson 984, 1319, 1321, 1322, 1431, 1482, 1509 clii TABLE OF CASES. St. John v. Benedict 1434, 1483 v. Dieflendorf 821 v. Garow 1249 v. Redmond 284, 293 v. Van Santvoord 704 St. John, Lady, v. Pigot 498 St. Louis v. McDonald 841 St. Martin's, Overseers of, v. War- ren 998 St. Saviour's, Southwark, Ward- ers of, c. Bostock 7G2 St. Saviour's, Southwark, Ward- ers of, c. Smith 1398 Salem Bank v. Gloucester Bank 282, 285, 931, 1106, 1107 Salem Ind. Rub. Co. v. Adams 637, 654 Salisbury v. Gourgass 820 v. Hale 744 v. Hatcher 1479, 1480, 1481 v. Marsha 1 4 71 v. Stainer 637 Sally u. Capps 317,343 Salmon v. Davis 346 v. Matthews 515 t: Smith 4C5 v. Ward 643 e. Watson 495, 969 v. Wooton 1171 Salmon Falls Manuf. Co. v. God- dard 91, 95, 544, 545, 54 6, 549 Sake v. Field ' 279,611 Salter v. Burt 1066,1209 v. Woollams 613 Saltmarsh v. Tuthill 588, 1019 Saltmarshe v. Hewett 1020 Saltoun v. Houston 12.5 Saltus v. Everett 277, 535 Sammell v. Wright 865 Sammis v. Clark 952 Samms v. Stewart 682 Sampson v. Burnside 419 v. Burton 12S8 v. Easterby 125 v. Henry 487 v. Shaw 735,920, 971, 07li, 9 77 v. Swift 29, 32 Samuda v. Lawford 1429, 1457 Samuel, in re 205 Samuel v. Cravens 263 v. Danbury 87G !J. Duke 578 San Antonio v. Lewis 378 Sanborn o. Chamberlin 413, 414 v. Emerson 1337 v. Kittredge 537 v. Little 136 7 v. Sanborn 1453 Sanches v. Davenport 667 Sandclift v. Allen 776 Sanders v. Branch Bank 1103, 1128 v. Coward 1236 v. Filley 77 v. Hamilton 906 u. Jameson 158, 636, 647 v. Richards 1443 v. Robinson 1264 v. St. Neot's Union 382, 394 v. Spencer 6 76 v. Vanzeller 725, 1371 Sanderson v. Bell 802, 1098 v. Cockermouth &c. Railw. Co. 1429, 1456 v. Milton Stage Co. 361 v. Symonds 1162, 1163, 1169 Sandford v. Allen 770 ... Dodd 1093 v. Handy 282, 2S6, 287, 294 v. McKean 229 v. Mickles 364 v. Sandford 7 7 v. Wiggins 531 Sandilands v. Marsh 147, 345, 351, 761 Sandiman o. Breach 120, 591, 1017 Sands v , Clarke 1084 v. Lvako 837 v. Lyon 1066, 1192, 1193, 1209 v. Taylor 600, 637, 650, 1330 Sanford v. Emory 434 v. Harvey 474, 485 v. Hayes 1254 Sangston v. Maitland 307 Sankey Brook Coal Co. v. Marsh 1289 Sanson v. Rhodes 434, 1062 Santos y. Illidge 972 Sapsford v. Fletcher 466, 883, 1267 Saratoga R. R. v. Row 1092 Sard v. Rhodes 1124, 1135, 1143 Sargeant v. Southgate 1268 Sai-gent v. Adams 149, 424 v. Butts 592, 1018 v. Currier 883, 884 v. Franklin Ins. Co. 622 v. Gile 540 v. Graham 1192 v. Metcalf 538 v. Morris 316, 724 v. Parsons 516, 907 v. Southgate 1116, 1367 Sari v. Bourdillon 151, 544, 548 San-ell !'. Wine 377, 1264 Sarter v. Gordon 1050, 1425 Sartup v. M'Donald 632 Sasportas v. Jennings 271 Sasscer v. Young 776 Sater «. Henderson 1358 TABLE OF CASES. cliii Satterlee v. Frazer 816 v. Groat 682 v. Jones 987 v. Ten Eyck 1273 Satterthwaite v. Doughty 134 Saunders v. Best 1300 v. Frost 1190 v. Graham 1189 v. Hatterman 1040 v. Johnson 1344 v. Musgrave 454 i>. Taylor 764 v. Topp 556, 559 v. Wakefield 2, 91, 94, 761 Saunderson v. Griffith 23, 24, 229, 293 v. Hanson 473 v. Jackson 98, 546, 549 v. Piper 149, 1027 Sauvage v. Dupuis 451 Savage v. Carroll 1455 r. Davis 1281 v. Marsh 1302 v. Rix 293 309,314 Savage Ins. Co. v. Armstrong 383 Savage Manuf. Co. v. Armstrong 1083, 1090, 1210 Savary v. Goe 1065, 1209, 1210 Savery v. Spence 1424 Saville ». Robertson 333, 358 Savoury v. Chapman 1097 Saward v. Anstey 106, 118, 124 Sawyer v. Cutting 231, 232, 233 v. Hammatt 127, 160,434 v. Hammond 1062 v. Hovey 1024 v. Joslin 602, 604, 605, 607 v. Lufkin 188 • v. Nichols 557 v. Proctor 342 v. Tappan 1113 v. Twist 509 v. Vaughn 26 Saxon v. Blake 1472 Saxon Life Assurance Soc. re 1032 Say v. Barwick 1465 Sayer v. Chaytor 1355 v. Reynolds 1166 v. Wagstaff 1134, 1135 Sayles v. Blane 891 Sayre v. Austin 954 v. Flournoy 226, 228 v. Peck 147 Sayward v. Stevens 151 Scadding v. Eyles 810, 968 Scales v. Jacob 1242 Scammell v. Sewell 130 Scanland v. Houston 960 Scarborough n. Reynolds 644 Scarce v. Whittington 810 Scarfe v. Hallifax 942 v. Morgan 590, 802 Scarman v. Castell 857 Scarpellini v. Atcheson 225, 228, 1402, 1403 Scattergood v. Sylvester 536, 567 Schack ii. Anthony 306, 1160 Schackell v. Rosier 748, 973 Schenck v. Saunders 150 Schenks v. Strong 208, 209 Schermerhorn v. Laincs 1140 v. Schermerhorn 1261 v. Talman 974,977,1004 v. Vanderheyden 24, 76 Schibsby v. Westenholz 88 Schillinger v. McCann 1119 Schimmelpennick v. Bayard 285, 286, 295 Schlencker v. Moxsy 744 Sehlumberger v. Lister, , 1310 Schmalz v. Avery 150,307 Schmidt v. Blood 668, 680, 712, 868 v. Limehouse 955 v. Livingston 1474, 1506 Schneider v. Foster 616 v. Heath 645 v. Norris 98, 549 Schnerr v. Lemp 844 Schofield v. Corbett 1279 v. Haley 744 Scholefield v. Eichelberger 259, 360 v. Robb 655 v. Templer 1037 Scholes v. Ackcrland 709 Scholey v. Mearns 1281 v. Ramsbottom 958 u. Walsby 1105 v. Walton 1254, 1258 Scholfield v. Bell G01, 608 Schondler v. Wace 1417 School District 1>. Boston &c. R. R. Co. 691 School District No. 1 v. Dauchy 67, 833, 1074, 1078 School District in Rumford v. Wood 378 Schooner Reeside, The 83, 143, 157 Schopman v. Boston & Worcester R. R. Corp. 727 Schotsmans v. Lancashire & York- shire Rail. Co. 605 Schraeder v. Hudson River R. R. Co. 704 Schreger v. Carden 1199 Schroepel v. Hopper 433 Schuyler v. Hoyle 226 v. Russ 639, 644 Schuylkill Nav. Co. v. Moore 113 Schwartz v. Gilmo.-e 862' cliv TABLE OF CASES. Schwerin v. McKie Scoby i). Blanchard Scoggin v. Blackwcll Scolcs v. Coleman Scorell v. Boxall 673 1119 101 883 417 Scotland, Western Bank of, v. Addie 1037 Scotson v. Pegg 62 Scott v. A very 1183 v. Beavan 135 v. Berry 1306 v. Billgeny 1422, 1424 v. Buchanan 219 w. Colmesnil 362 u. Crane 1'207 v. Crawford 909 v. Duffy 971 v. Eastern Counties Rail. Co. 563 v. Eastern It, It. Co. 823 v. England 532 v. Fisher 1111 v. Gillmore 594, 1001 v. Godwin 1342, 1351 u. Haddock 1222 v. Plancock 1258, 1264 v. Hanson 1476, 1495 v. Henry 1474 v. Irving 1098 v. James 224 v. Jones 179 v. Langstaffe 1481 v. Littledale 1023, 1311 v. Liverpool, Corporation of 833 v. McGrath 286 v. Mi-sick 309 v. Miller 902, 903 v. Parker 878 v. Pett.it 605, 610 v. Pilkington 1178 v. Porcher 914, 1380 u.Ray 1117 v. Ravment 1423, 1431, 1469 v. Scott 626 v. Shaw 870 v. Surraan 295 v. Thomas 756 t>. Uxbridge &c. Rail. Co. 1195 v. Warner 46 v. Wells 294 Seotthorn v. South Staffordshire Rail. Co. 712 Scottish N. E. R. Co. v. Stewart 1468 Soouton D. Eislord 58, 263 Scoville «. Griffith 690, l.'!2G Seranton v. Baxter 668 Soriba v. Deanes 1147 Scrimshire v. Alderton 74, 303 Scruggs v. Gass 1107 Scudder v. Andrews 582, 1142 Scudder r. Bradbury 539 v. Worster" 524, 525 Scull v. Wallace 1264 Seurfield v. Gowland 925 Seaber v. Hawkes 309 Seabourne v. Powel 1485 Seabury v. Stewart 454 Seago v. Deane 967 Seagraves <\ City of Alton 379 Seal v. Hudson 871 Seaman v. Haskins 1124 v. Price 52 v. Seaman 29, 4 7 v. Van Rensselaer 1434 v. Vawdrey 1490, 1493 w.Whitney 915 Seare v. Prentice 808 Searight v. Craighead 1237, 1248 Searle v. Lindsay 859 Searles v. Sadgrave 1198 Sears v. Boston 426, 1424, 1425, 1483 v. Brink 92 Seaton v. Benedict 237, 238 v. Booth 1347 v. Mapp 434 Seaver v. Bradley 742 v. Morse 846, 849 v. Phelps 187, 188, 190, 402, 1050 Seavey v. Seavey 838 Seawell v. Henry 1197 Sebastian v. Ford 465 Seckford's case 40 Secor v. Sturgis 1172 Seddon v. Senate 104 v. Tutop 1172,1173 Sedgwick v. Baniell 341 ,:. Stanton 982, 965, 996, 997 See v. Partridge 139, 830, 1085, 1210 Secdstone r. Cutts 1263 Secley v. Howard 425 Scibles v. Blackwell 651 Seidenbender v . Charles 971, 1004 Seiden sparger r. Spear 418, 419 Seixas v. AVoods 630 Selby ii. Jackson 191, 1475 o. Selby 550 Selden v. Delaware & Hudson Canal Co. 419 v. James 956 v. Williams 9 Selleck t>. French 951, 952 v. Sugar Hollow Turnp. Co. 1110 Sellen v. Norman 856, 857, 1104 Seller v. Jones 769 Sellers v. Dugan 588 v. Stalcup 1474 TABLE OF CASES. civ Sells v. Sells 1024 Selph v. Howland 229 Selway v. Fogs 89, 570, 1037, 1092 Semenza v. Brinsley 306, 307, 1283 Semple v. Pink 35, 40 i'. Steinau 163, 164 Senior v. Array tage 157, 508 v. Ward 858 Serle v. Norton 1105 Servante v. James 1341, 1345 Sessions v. Little 128 v. Western R. R. Corp. 708, 710 Seton v. Slade 279, 1068 Severance r. Kimball 271, 948 Sewall v. Allen 683, 685, 697 v. Fitch 275, 542, 543 o. Gibbs 116 v. Henry 126, 127, 538 v. Sparrow 783, 1146 v. Wilkins 424 Seward i>. Jackson 573 v. Willock 425, 428 Sewell v. Corp 83 v. Raby 916 Seymour v. Brown 672 v. Carter 419 v. Davis 542 v. Delancy 192, 1050, 1434, 1435, 1470, 1474, 1502 o. Maddox 857 v. Marvin 1110, 1111, 1113 v. Mintnrn 62,1054,1101 v. Pychlau 613 v. Sexton 1113 v. Van Slyck 1110,1117 Shack v. Anthony 306, 1160 Shackefl v. Rosier 748, 973 Shackleton v. Sutcliffe 1493 Shadwell v. Hutchinson 1175 v. Shadwell 61 Shafer v. Stonebraker 1176 Shallcross v. Palmer 1167 Shamburger v. Kennedy 276 Shanck v. Northern &c. R.R. Co. 858, 859 Shand v. Sanderson 1371 Shannon v. Bradstreet 1435, 1438, 1465 v. Comstock 426, 856 Shapland v. Smith 1058, 1496 Shapley v. Bellows 821 Sharland v. Spence 1308 Sharman o. Sanders 837 Sharon v. Mosher 651, 657 Sharp v. Conklin 1341, 1345 v. Cropsey 214, 215, 838 v. Gray ?29, 730 v. Milligan 1507 Sharp v. Taylor 1466 v. Ti'cse 1003, 1004 v. Waterhouse 89, 1383, 1391 v. Wright 1507 Sharpe v. Foy 1440 v. Gibbs 1160 Sharrington v. Stratton 24 Sharrod v. London & North West- ern Railway Co. 866 Shaw u.Allen 1240 v. Arden 804, 815, 819 v. Badger 1272 ' v. Berry 676 v. Bunny 403 v. Carbrey 420, 494 v. Dartnall 348, 904, 931 u.Dodge 1017 v. Farnsworth 440 v. Finney 550 v. Fisher 1426, 1428, 1447 v. Gookin 1279 v. Hayward 5 v. Holland 1332 v. Kay 469 v. Levy 572 v. Lewiston Turnp. Co. 830 v. Loud 884 v. Newell 1263 v. Nudd 275, 292, 621 v. Pietou 904, 931, 1111, 1113 c. Pratt 346, 1114, 1146, 1154, 1356 v. Pritchard 1019 v. Reed 991 v. Rowley 432 t-. Shaw 82, 423, 852, 853 v. Sherwood 1345 v. Spooner 992 *. Stiae 1037 v. Stone 141 v. Thackeray 192, 1436, 1446, 1465 v. Thompson 56, 233 v. Turnpike Co. 844, 1083, 1084, 1085, 1090, 1092 v. Wilkins 433, 438, 439 v. Woodcock 348, 941 Shay v. Pettes 1024 Sheard v. Venables 1477 Shearer v. Barrett 567 i'. Jewett 1061 Shed v. Peirce 1146,1156 Sheehy v. Mandeville 1135, 1379 Sheets v. Andrews 436 Sheffield v. Mulgrave, Lord 1497 Sheffield Canal Co. v. Sheffield & Rotherham Bail. Co. 19 Sheffield Gas Co. v. Harrison 1431, 1469 clvi TABLE OF CASES. Shelburne v. Inchiquin 1463 Shelby t>. Guy 135 v. Hearne 1385, 1387 v. Shelby 1235 Sheldon v. Capron 517 v. Cox 617 u. Fairfax 22, 378 v. Hopkins 1177 v. Kendall 1281 v. Robinson 681, 683, 689 c. School Dist. in Suffield 936 Shelly v. Wright, ' 7 Shelton r. Cocke 1248 v. Darling 304, 308 v. Livius 154 v. Pendleton 196, 231, 232, 23G, 247 v. Springett 60, 210 Shenk v. Mingle 57, 980 Shepard v. Palmer 902 v. Rhodes 56, 58 v. Richards 907 v. Shepard 251 v. Spaulding 496 v. Ward 1099 Shepherd ... Bevin 30 v. Breed 1302 v. Bristol & Exeter Rail. Co. 703, 704, 707, 708 v. Charter 1334, 1335 v. Hampton 621, 622 v. Harrison 528 v. Johnson 1332 v. Kain 636, 646 v. Little 1119 v. Maekoul 247, 258 v. Nay lor 151 v. Pres;ey 555, 558, 561 v. Pybus 632, 654 u. Temple G40, 053, 1093, 1094 v. Watrous 270, 271 Shepley v. Davis 523 v. Waterhouse 1248 Sheppard u. Doolan 1499 v. Kindle 229 v. Lark 1336 v. Murphy 1427 v. Oxenford 14G6 u. Stiles 1361 v. Union Bank of Lon- don 298, 299 Sherbon v. Colebach 1006 Sherburne v. Fuller 422 v. Shaw 544, 545 Sheridan v. Brooklyn &c. R. R. Co. 733 v. New Quay Co. 712 Sheriden v. Smith 1200 Sherk v. Endress 1038 Sherman v. Champlain Trans. Co. 626 v. Fitch 276, 314 v. Railroad Co. 858 v. Wakeman 1239, 1242 v. Wright 1438 Sherrill o. Hopkins 131 Sherrington v. Yates 224, 225, 227, 1404, 1405 Sherrod v. Woodward 743 Sherron i'. Humphreys 572 Sherry v. Oke 435 o. Picken 417 Sherwood v. Mar wick 282 i'. Robins 403 v. Seaman 466 v. Stone 275, 276 v. Sutton 1235 Shewell v. Oivan 952 v. Knox 743 Shield v. Wilkins 115, 1076 Shields v. Davis 1094 v. Pettee 617, 620 v. Yonge 858 Shiells v. Blackburne 665, 667 Shillaber v. Jarvis 1452 Shillibeer v. Glyn 43, 666 Shindler v. Houston 537, 562 Shine v. Bodine 533 Shipman v. Horton 194 v. Miller 952 v. Thompson 1279 Shippey v. Derrison 96 .. Henderson 58, 263, 1262 Shipton v. Casj-on 617 v. Thornton 173 Shipwick i\ Blanchard 943 Shireff v. Wilks 354 Shirley r. Davis 1024 u. Newman 483 l'. Sankev 736 v. Shirley 97, 411, 424 u. Stratum 1473, 1503, 1504 v. Todd 1268 p. Wilkinson 281 Shitler v. Brewer 1240 Shoemaker v. Benedict 1248, 1252, 1257 Shore v. Lucas 600 v. Wilson 103, 104, 105, 112, 114, 130, 147 Short v. M'Carthy 1234, 1245, 1263 v. New Orleans, City of 1380 v. Simpson 724, 1371 v. Spademan 317 f. Stone 792, 1073 v. Woodward 103 Shotwell d. Hamlin 999 v. Miller 346 TABLE OP CASES. clvii Shoubridge v. Clark 948 Show v. Hnrd 1087 i'. Webb 925 Shower v. Pilck 60 Shrewsbury v. Blount 1039, 1045 v. Buckley 1 208 Shrewsbury, Earl of, v. North Staffordshire Rail. Co. 385 Shrewsbury & Birmingham Rail. Co. u. London & North Western Rail. Co. 995, 1438, 1466, 1468, 1472 Shrias v. Morris 292 Shubrick v. Fisher 331 v. Russell 779, 780 Shumway v. Colling 512, 1081 i). Rutter 536, 571 Shurlds v. Tilson 362 Shurtleff v. Willard 536, 537, 538, 563, 574 Shute v. Bassett 1336 v. Dorr 101,422,854 v. Taylor 1317 Shutford v. Borough 1230 Shuttoek v. Shuttock 1442 Sibley v. Aid rich 676 v. Fisher 1163 v. Iiolden 126,147 v. Lumbert 1255, 1256 v. M'Allister 779, 787,889, 892 v. Phelps 1217 Siboni v. Kirkman 139, 1411 Sibree v. Tripp 1101, 1102, 1128, 1129, 1143 Sibthorp v. Brunell 170,424 Sice v. Cunningham 145 Sichel v. Mosenthal 1431, 1468, 1469 Sicklemore v. Thistleton 118, 122, 1073 Sidaway v. Hay 1302, 1303 Siddall v. Kawcliff 1171 Sideman v. Lafsley 956 Sidenham v. Worlington 2, 69, 73 Sides v. Hilleary 1043 Sidwell v. Evans 35, 40, 739, 1146 v. Mason 1240 Sievers y. Boswell 1022 Sievewright v. Archibald 546, 551, 552 Siffken v. Wray 609 Sigel v. Jebb 1008 Sigerson u. Mathews 55 Siggers v. Evans 577 Sicourney v. Drury 1238, 1248, 1252, 1254 e, Lloyd 300 v. Severy 1217 i>. Wetherell 775, 780, 1256 Sikes v. Johnson 208 v. Wild 435, 437 Silk v. Osborne 268, 1419 Sillem v. Thornton 1048 Silliman v. Wing 934 Sills v. Laing 886 Silver v. Frazier 1476 Silverlake Bank v. North 383 Silvis v. Ely 36 Simerson v. Branch Bank 573 Sinnnonds v. Humble 557 Simmons v. Hcseltine 429, 1058 i'. Keating 777 v. Means 836 v. Swift 519, 523, 606, 614 v. Wilmott 393 Sitnms v. Clarke 1106, 1107 v. Norris 203 Simon v. Lloyd 1134 v. Metivier 552 v. Motivos 550 Simond c. Braddon 620 Simonds v. Catlin 413 v. Center 1357 v. Heard 386 o. Henry 808 Simons v. Great Western Rail. Co. 687, 692, 693, 695 v. Heard 311, 315 v. Johnson 121, 1151 v. Norris 199 v. Patehett 314, 435, 437 Simpson v. Bloss 972 v. Clayton 1346, 1385, 1389 v. Crippin 1330 1096, 1133, 1290 v. Feltz 952 v. Fogo 1177,1178,1179 v. Griffin 746 v. Hanky 1274 v. Hawkins 405, 1494 v. Henderson 144 v. Howden, Lord 995 v. Lamb ' 280, 997 v, McKay 645 v. Manley 777 v. Manning 771 i-. Margitson 132, 1063, 1064 v. Mirabita 1296 v. Nicholls 592 u. Patten 740 v. Penton 750, 752 v. Phillips 592 v. Potts 655 v. Robertson 213 v. Stackhouse 1164, 1166 v. Vaughan 137 Sims v. Boaz 424 clviii TABLE OF CASES. Sims v. Bond v. Brittain u. Brutton v. Clark v. Harris 306, 316, 876 901 1254 931 1.14 2 v. Hutchins 81, 82, 422, 423, 852, 925, 928 v. Killian 1435 v. McEwen 81, 4 22 v. Marryatt 626, C 2D v. Sims 60 v. Willing 334, 951 Simson v. Cooke 76 7 w.Ingham 1113, 1118 Sinclair v. Bank 1234 v. Bowles 831 v. Healy 567 v. Pearson 674, 865, 86 7 Siner ». Great Western Rail. Co. 733 Singer v. MeCormick 844 Singery v. Att. Gen. 1039 Singleton v. Barrett 964, 968 v. Butler 1163 v. Milliard 090 i*. Lewis 958 Siordet v. Hall 682 c. Kuezinski 178 Sisson v. Cleveland & Toledo Rail- road 1326 Sissons v. Dixon 978 Skaife v. Jackson 1096, 1118, 1154 Skeate v. Beale 272 Skelley v. Kahn 665 Skelton v. Brewster 756 v. Dccring 1168' Skidmore v. Bradford 64 Skillett i>. Fletcher 766 Skillington v. Allison 1261 Skingley, re 1074 Skinner v. Dayton 286, 310, 352, 359 v. Gunn 287, 292, 310 u. Henderson 94 4 v. Housatonie R. R. Corp. 734 v. London, Brighton & South Coast Rail. Co. 732 v. M'Douall 1448, 1458 v. Somes . 1357, 1359, 1361 v. Stacks 127 7 Skinners' Company v. Jones 1294 Skip v. Eastern Counties Rail. Co. 85 7 Skrine v. Elmore 181, 656, 1121 Skull v. (ilenister 1477 Skyring v. Greenwood 904, 931, 934 Slack v. Brown 1185 v. Lowell 955 v. Mc Logan 14 74 v. Sharps 367 Slade's case 261,1171 Slark v. Highgate Archway Co. 381 Slater v. Baker 808 v. Hamcs 871 v. Lawson 377, 1258 v. McGraw 139 v. Maxwell 409 v. Mills 226 v. Rawson 1382, 1383, 1388, 1399, 1400 Slaughter v. Green 672 v. Hamm 1119 v. Tindle 1421 Sleat v. Fagg 697, 721 Sleath v. Wilson 865, 866, 868 Sleeman v. Barrett 837 Sleeth v. Murphy 1265 Sleght v. Rhinelander 143 Sleigh v. Sleigh 882, 884, 886 Slim v. Croucher 8, 1046 v. Great Northern Rail. Co. 686 Slingerland v. Morse 756, 1190, 1192, 1202, 1210 Slingluff ii. Eckel 408 Slingsby's case 1342, 1343, 1345 Slipper v. Stidstone 1279 Slocum v. Fairchild 691, 713 Sloper r. Cottrell 1312, 1403 v. Fish 1496 v. Saunders 515 Slubey v. Hey wood 606 Sly p. Edgely 861 Slyhoof v. Flitcraft 1170 Small v. Attwood 1444, 1473, 1504 v. Gibson 115 v. Marwood 1160 17. Quincy 21, 154, 1061 Smallpiece v. Dawes 240 Smart v. Chell 35, 63 u. Hardinw 412 p. Noakes" 179 v. Sanders 280, 281 v. A\'est Ham Union, Guar- dians of 394 Smeed v. Foord- 1325, 1326 Smethurst v. Mitchell 302 17. Taylor 284, 285 v. Woolston 622 Smiley v. Bell 1360 Smith's case 1041 Smith v. Acker 573 v. Adkins , 398 v. A I gar 34, 41 f. Arnold 91,96,413,414,545, 546, 553 v. Atlantic Mut. Fire Ins. Co. 1170, 1171 t>. Babcock 1039, 1041, 1045 v. Ballou 1119 v. Barrow 339, 341, 342 u. Bartholomew 60, 61, 1127 TABLE OF CASES. clix Smith v. Bean 588, 589, 591, 592, 1017 v. Benson 416 »• Ber ry 621, 1359 v. Bickmore 944 v. Bishop 1235 v. Boston &c. R. R. 834 w. Boston, Concord & Mon- treal R. R. 1179, 1183, 1184 v. Bowditch 817 v. Bowen 1465 v. Braine 26 v. Brewster 816 v. Bromley 939 v. Brookline 61 v. Brown 1102, 1131 v. Buchanan 1302 v. Burnham 318, 330, 413 .v. Capron 1448 v. Cassity 1229 v. Cator 172, 182 v. Chance . 508, 613, 614 v. Chaney 440 v. Child ' 1496 v. Clark 672 v. Clay 1506 v. Compton 786 v. Craven 356, 357 v. Crooker 1168 o. Cuff 940, 1054 v. Davenport 556 v. Day 765 v. Dearlove 679 v. Dennie 539 v. Dickenson 739, 1319 v. Doak 146 u.Dunham 1168 v. Dunlap 622 v. Dunn 743 v. Eastman 1254 v. Edwards 332 v. Eldridge 512 v. Evans 205, 208, 220, 221 v. Everett 1360 v. Faulkner 103, 104, 105, 116 v. Fenner 1166 v. Ferrand 1108, 1139 v. Fly 1235 v. Forty 967, 1252 v. Foster 538, 590 v. Garland 1439, 1467 u Gibson 199, 293 v. Godfrey 128, 135, 583, 586, 987 v. Goodwin 1187,1195 v. Goss 602, 607, 609 v. Gowdy 11 v. Greeley 1459 v. Greenlee 407, 409 „. Griffith 621 Smith v. Gugerty 828, 1092 v. Harwich, Mayor of 89, 833 v. Haynes 431, 1058 v. Hayward 855 v. Henry 425, 572 v. Hill .1222 v. Hodgson 1285 v. Howell 470, 1328 v. Hudson 555 v. Hughes 1026 t\ Hull Glass Co. 386 v. Humble 474 v. Hunt 1350 v. Hyde 800, 809, 836 v. Ide 743 v. Jameson 1100 v. Jeffreys 143, 1032 v. Johnson 1180, 1466 v. Jones 553, 665, 668, 898, 899, 1101, 1172 v. Kay 1037 u. Keating 1304 ti. Kelley 200, 215, 216, 218 v. Kerr 352 v. Key 1197 v. Lawrence 865 v. Leeper 1239 v. Lewis 1080, 1084, 1085, 1086, 1148 v. Lindo 806 v. Lipscomb 1085 r. Lloyd 1111, 1114, 1116 t;. Loomis 1210, 1211, 1212 v. Lovell 461, 1133 v. Lowell 828 v. Lynes 539, 596 v. McGowan 1166, 1167 o. M'Guire 285, 1332 a. Machin 1459 v. Mackin 1024, 1029 v. Manners 1191 v. March 1254 v. Marconnay 987 v. Marrable 514 v. Marsaok 1293 v. Matthews 1450 v. Mawhood 586, 987, 1006 v. Mayo 215, 216 v. Mercer 932, 1137 v. Monteith 40, 269, 270, 272 v. Montgomery 751, 767 ^. Moore 11, 800 v. Nashua & Lowell R. R. 664, 702, 703 v. Neale 96, 102, 626 v. Newby 1222 u. Newhaven & Northamp- ton R. R. Co. 689, 725 v. Nicholls 1174, 1177 clx TABLE OF CASES. Smith v. Niel 572 t>. Nightingale 172 r. Kites 672 v. Page 1110 u. Pearson 1474 !•. Peat 469 u. Pincomhe 47 v. Plomer 229, 252 v. Porklington 1352 v. Pococke 1236 v. Proprietors &c. 379 f. Readfield 272, 934 v. Reese River Co. 1046 v. Piee 279, 631 r. Richards 1043 v. Ridgway 122 v. Robinson 427 r. Roche 62, 980 c. Rogers 1140 v. Pmcastle 1220 v. Salzman 994 r. .Sanborn 1061 v. Savward 756, 889 v. Schibel 1359 i . Scott's Ridge School Dist. 828 v. Screven 1117 v. Seaton 929 v. Seward 682 v. Shepherd 663 v. Sheriff 511 r. Sherman 789 v. Sherwood 1170 i. Sieneking 1371 v. Simms 1254, 1265 v. Sleap 910, 942 v. Smith 29, 427, 548, 566, 852, 913, 1039, 1205, 1317, 1367 r. Sparrow 590 ( . Spooner 193 , . Stafford 1401 v. Stewart 453, 454, 511, 515 <-. Stokes 300 v. Stone 346, 1152, 1351 v. Surman 411, 415, 548, 560, 502 u. Tarlton 318 v. Tebbitt 191 r. Thompson 148, 811, 843, 990 r. Tiiorne 1239 v. Tracv 830 t>. Trowsdale 1131 v. Tunno 784 v. Twoart 515 v. Underdunck 1450 r. Walton 14G ... Ware 53, 58 v. Watson 310, 321, 322, 323, 329,331, 334, 335 Smith v. Watts v. Weed v. Westmoreland ,.. White v. Whiting u. Whitman v. Wigley v. Williams v. Wilson 1492 32 1252 297, 980 946, 1180 685, 690 1116 638 132, 143, 144, 1084, 1137 v. Winter 364 v. Woodfine 795, 1336 v. Wooding 454 i>. Wright 156 Smith & Peek's App. 1478 Smock v. Taylor 1361 Smothers v. Hanks 808 Smout v. Jlberry 233, 278, 281, 313 Smull v. Jones 409 Smurthwaite v. Wilkins 724, 1371 Smyrl v. Niolan 682 Smyth v. Anderson 300,302,315 v. Craig 281 v. Holmes 36 v. Masters 736 Snead v. Green 1458 v. Watkins 679 Snedaker v. Moore 1473 Snee v. Prescott 316,610 Sneed a. White 7 74, 781 Sneesby v. Thome 1438, 1468, 1486 Sneezum ;;. Marshall 162 Sneider i-. Geiss 676, 699 Snell v. Moses 630 Snelling o. Huntingfield, Lord 100 Snevely c. Johnson 740 u. Reed 53, 58 Snevily v. Ekel 739 Snider p. Croy 1180 Snodgrass v. Gavit 1184 Snook v. Fries 847 u. Mcars 1245, 1246 Snover r. Blair 245 Snow v. Conant 1279 v. Eastern Railroad Co. 700 v. Honsatonie R. R. Co. 858 v. Perry 285, 286, 1197 v. Prescott 946, 1090 M.Ware 599,617,827,828,829, 831, 1059 v. Warner 555 Snowdon v. Davis 910 Snowhill v. Snowhill 226 Snowman .. Harford 1436 v. Ward well 794 Snyder v. Castor 798 v. Pindley 1044 Soames v. Edge 1423 v. Spencer 24 TABLE OF CASES. clxi Society for Propagation of the Gospel v. Wheeler 34, 383 Sodowsky v. McFarland 665 Sohier v. Loring 775 v. Williams 1496 Soles v. Hickman 545, 1456 Solinger v. Jewett 1473 Sollee u. Mengy 743 Solly v. Forbes 1150, 1155, 1357 v. Weiss 804 Solomon, ex parte 598 Solomon v. Gregory 782, 783 Solomons v. Nissen 319 v. Turner 1140 Solvency Mutual Guarantee Co. v. Freeman 1034 Somerset's case 839 Somerset v. Cox 1368 Somerset, Duke of, v. Cookson 1425 Somes v. Brewer 567 Sondes, Lord, v. Fletcher 1333 Sorrell v. Craig 1072, 1208 Sorsbie v. Park 139, 1341, 1343, 1345 Sortwell v. Hughes 987 Sothoron v. Hardy 1239 Sotilichos v. Kemp 148 Souch v. Strawbridge 99, 101, 102 Soulder v. Van Rensellaer 1249,1261 Soule v. Bonney 269, 270 Souter v. Drake 432, 1058 South, ex parte 1360 South v. Finch 182 Southall v. Rigg 1042 Southampton, Lord, v. Brown 77 Southard v. Rexford 22, 790, 793, 795 v. Steele 351 Southby v. Wiseman 288 South Carolina Bank v. Case 357 South Carolina Society v. Johnson 764 Southcomb v. Exeter, Bishop of 1507 Southcote v. Hoare 1342 South Eastern Bail. Co. v. Knott 14 78, 1506 v. The Queen 1061 Southern v. Howe 644, 1043 Southern Express Co. v. Caperton 693 v. Crook 691, 693, 696 v. McVeigh 685 v. Newby 683, 686, 696 Southern Life & Trust Ins. Co. v. Cole 541 Southerton v. Whitlock 215 Southgate v. Bohn 182 South of Ireland Colliery Co. v. Waddle 381, 384 South Sea Co. v. Duncomb 878 South Sea Co. u.Wymondsell 1235 South Staffordshire Kail. Co. v. Burnside 1297 South Wales Railway Co. v. Wythes 1430, 1434, 1467 Southwark Bridge Co. v. Sills 380 Southwell v. Nicholas 1471 South wick v. Allen 362 v. Ellison 509 v. Estes 281, 866, 868 v. Hayden 150 v. Sax . 1137 Southworth i>. Smith 1192, 1193, 1201 South Yorkshire Rail. Co. v. Great Northern Rail. Co. 385 Souverbye c. Arden 4 Soward v. Palmer 1058, 1138, 1160 Sowdon v. Mills 1322 Sowerby v. Wordsworth 261 Sowry t). Law 1306 Sowter v. Dunston 1170 Spafford v. Hobbs 291 v. Page 1361 Spain v. Arnott 839, 843 Spain, King of, v. Machado 1445 Spalding v. Bank of Muskingum 945 v. Conzelman 1453 u. Preston 582, 586 c. Vandercook 653, 1094, 1141 Spangler v. Springer 155 Spann r. Batzell 63 Sparenburgh c. Bannatyne 260 Sparhawk i\ Buell 213, 1119 Sparks v. Garrigues 958 a v. State Bank 491 ^Sparrow v. Oxford &c. Railway Co. ' 1478 c. Paris 1315 Spartali v. Beneeke 143, 156, 597 Speake v. Richards 1176 v. United States 1166 Speakman v. Forepaugh 1496, 1500 Spear v. Tracy 1334 v. Travers 606 Spears v. Hartley 1215 Specht v. Commonwealth 1019 Spedding v. Nevill 314 Speed u.^Phillips 30 Spence v. Chadwick 468, 620 v. Healey 1131 v. Hogg 1446 Spencer's case 78, 1342, 1382, 1383, 1385, 1386, 1387, 1388, 1389, 1393, 1394, 1399 Spencer v. Babcock 148 v. Carruthers 702 v. Cone 54 2, 543 v. Daggett 682 clxii TABLE OF CASES. Spencer v. Durant v. Field v. Hale v. King v. Parry v. Smith v. Wilson 1342, 1344 310 555, 561,562 800, 811, 997 881, 886, 963 594 279 Speyer v. New York Ins. Co. 142 Spicer v. Cooper 91, 151 Spiers r. Clay 1120 Spiller v. Westlake 653, 825, 1085, 1094, 1141 Spires v. Hamot 1114 Spittle v. Lavender 309, 312 Spivy v. Farmer 682 Splidt v. Bowles 1393 Spong v. W right 1240,1244 Spooner v. Davis 1176 u. Dunn 757 v. Russell 263 Spoor v. Spooner 1338 Spotswood v. Barrow 855 Spragg v. Hammond 473, 888, 936, 943, 120 7 Sprague v. Baker 1357, 1358, 1388, 1398 v. Birdsall 928, 940 v. Cillctt 289 Spratt v. Ilobltotise 903 v. Jeffery 432 Spring v. Bank of Mt. Pleasant 779 Sprigwell v. Allen 627 Spring t>. Gray 1215, 1219 v. Hulett 838 v. Lovett 145 v. So. Car. Ins. Co. 1366, 1367- 136f Spriiiw c. Hutchinson 739 Spriuglield Bank v. Merrick 971, 1004 Sproat r. Culler 954 Sprott v. Powell 396 Sproul v. Heiumingway 860, 863 Sprowl v. Kellar " 682, C89 Spruneburger r. Dentler 1122 Spry v. Emperor 948 Sprye v. Porter 996 Spurgeon v. Collier 1454 Spurr v. Andrew 416 v. Benedict 1024, 1033, 1473 v. Cass 306 v. Wellman 699 Spurraway v. Rogers 970 Spurrier v. Elderton 746 v. Fitzgerald 1458 v. Hancock 1507, 1508 Spybey v. Hide 1198 Squier v. Hunt 619 Squire v. Baker 1504 Squire v. Ford 1159 v. New York Central Rail- road Co. 690, 691 v. Western Union Tel. Co. 685, 692, 725 v. Whipple 99, 100, 101, 422, 842 v. Whitton 1482 Squires v. AVaiskin 737 Stacey v. Decy 1277 Stackhouse v. Barnslon 1236 Stackpole v. Arnold 5, 149, 275, 1119 v, Symonds 591 Stackpoole »>. Earle 1016 v. Stackpoole 1437 Stackwood v. Dunn 1278 Slacy v. Foss 919, 945 v. Kemp 150, 653 Stadhecker v. Combs 684 Stafford v. Bacon 33, 58 v. Clark 162 v. Newsom 1042 Stafford, Ma) r or and Corporation of, v. Till 380 Sta<_ r g v. Pi'poou 1163 Staiiier v. T\ sen 286, 293 Staines c. Slmre 407, 408 Stains! airy c. Jones 1422 Stamford Bank v. Benedict 1111 Stammers r. Macomb 236 Standen v. Christmas 468, 469, 515, 1386 Standifer v. Davis 425 Standish c Hns-, 905, 908, 933 Stano-borow !'. Warner 50 Slau°er v. Miller 1287 Stanifurd p. Tuttle 1104 Stanley i. Hendricks 75S v. Jones 996, 997 v. Kempton 1217 v. Lucas 785 v. Western Insurance Co. 113 Stansbury v. Fringer 1427 Stansllehl r. Mayor &c. of Ports- mouth 503 Stanton's case 199 Stanton v. Allen 982 v. Collier 1293, 1303, 1415 v. Eager 601, 602, 612 v. Metropolitan Railway Co. 1018 v. Stanton 1239 ?.. Styles 1176 v. Tattersall 1059, 1478 u. Wilson 196, 211, 212, 213 Stanwood v. Stanwood 229, 251 Stapilton i>. Stapilton 47 Staples v. Emery 509 . Thompson 589 State Treasurer v. Cross 51 Staunton v. Wood 1063 Stavers v. Curling 117, 1082 Stead v. Dawber 155, 1066. 1148 v. Liddard 147, 761 v. Nelson 1440 v. Poyer 1126 ( «. Salt 346, 351 Steadman v. Hockley 801, 802 Steaines v. Wainwright 1003, 1055 Steamboat Charlotte v. Hammond 1135 Steamboat Co. v. Bason 682 Steamboat New World v. King 663 Stearns v. Barrett 984 v. Brown 959 v. Hall 156, 1148 v. Haven 331 Stearns v. Marsh 670 v. Tappin 58, 1246 v. Washburn 614, 615 Stears «. South Essex &c. Co. 1312 Stebbins v. Eddy 107, 405, 1040 v. Leowolf 1066 v. Peck 592 v. Smith 32, 64 Stedman i». Gilson 1268 o. Gooch 1134, 1137 v. Martinnant 1304 v. Western Transporta- tion Co. 691 Steel v. Brown 575 u. Jennings 347, 1249 v. Matthews 1254 v. South Eastern Railway Co. 862, 864 v. Steel 838 Steele v. Adams 1120 v. Ellmaker 407 v. Haddock 1034, 1311 v. Harmer 349 v. Hoe 112, 741 v. Perry 292 v. Sawyer 746 v. Spencer 116.H u. Williams 910, 940 v. Worthington 1120 Steers v. Lashley 897 Steigleman v. Jeffries 1272 Steiglitz v. Eggington 291, 352 Stein v. Robertson 319 Steinman v. Magnus 1051 Steman v. Harrison 76 Stephens v. Badcock 900 v. Beal 226 v. Chappell 655 v. Graham 1168 v. Guppy 1449 v. Lowe 175 v. Lyford 621 v. Orman 1039 u. Pell 137 v. Pinney 176 v. Robinson 837, 1005 v. Squire 756, 1379, 1381 v. White 43, 666 v. Wilkinson 600, 622 Stephenson v. Davis 1427 v. Doe 1221 v. Hardy 877 v. Harris 439 v. Hart 566, 707, 712, 721, 723 Stepney v. Lloyd 270 Sterling v. Baldwin 416 v. Rogers 1161 v. Sinnickson 988 clxiv TABLE OF CASES. Sterling v. Van Cleve 572 v. Warden 140 Stern v. Filene 614 Stetson u. Patten 291, 314, 315 Stevens v. Adams 811, 835 v. Armstrong 860, 864 r. Austin 1093 v. Bagwell 998 v. Baird 126 v. Barringer 959 v. Beals 224, 232 i. Benning 1363 v. Bomar 1222 v. Curling 117 v. Eno 524 v. Fitch 947 v. Fuller 639, 640, 1049 v. Gaylord 1156 v. Gourley 833 i. Griffith 24 v. Harrow 7 ii. Jackson 205 v. Lockwood 1172 u. Lyford 623, 1323, 1326, 1334 u. Lynch 215, 934 v, N orris 128 v. Reeves 117, 156 v. Robins 804 o. Rothwell 871 v. Smith 633 v. Ste\ens 418, 419 c. Webb 1061 v. Wilson 298 v. Winn 92 Stevenson v. Blakelock 597 v. Lambard 1387, 1397 v. Maxwell 956 v. Newnham 534, 566, 567 Steward v. Coulter 1278 v. Dunn 363 u. Greaves 359 v. Harding 485 v. Scudder 83, 159 v. Volveridge 126 Stewart v. Aberdein 1098 v. Alliston 1474, 1475, 1477, 1492 v. Bracebridge 870 v. Bremer 687 v. Cauty 1331 v. Convngham, Marquis of " 1492, 1496, 1499 v. Donnelley 1208 u. Doughty 41 7, 506 v. Durrett 1265 v. Eden 52 v. Forbes 319 v. Fry 915 Stewart v. Hamilton College 32, 51 v. Harvard College 858 v. Kahle 803, 804 v. Kirkland 1363 v. Lispenard 187 v. London & North West- ern Rail. Co. 687, 691, 696 v. McGuinn 33 c. McKean 776, 778 v. Smith 1507 v. State 30, 141, 1050 v. Stewart 29, 46, 47, 224 v. Trustees of Hamilton College 32, 51 v. United States Ins. Co. 1276 v. Walker 840 Stiles v. Donaldson 1219, 1220 v. Farrar 1359, 1369 v. Greenville 214 v. White 579, 651, 652, 654, 657 Stilk v. Myrick 61 Stillman v. Hamar 500 Stimpson v. Sprague 816 Stimson a. Connecticut River R. R. Co. 698 v. Hall 1310 Stinchfield v. Little 310, 386 Stindt v. Roberts 1371 Stinson v. Clark 537 Stinton v. Richardson 516 Stirling v. Maitland 89, 1059 Stock v. Harris 707 v. Mawson 1054 Stockbridge v. Sussams 1290 Stoekbridge Iron Co. v. Hudson River Iron Co. 1024 Stocken v. Collin 18 Stacker v. Brocklebank 322 v. Wedderburn 1467, 1470, 1480 Stockett v. Watkins 86, 511, 906 Stocking i'. Sage 806 Stockley v. Stockley 192 Stocks v. Dobson ' 45, 1367 v. Van Leonard 1235 Stockton v. Frey 348, 726, 729, 730, 732, 1128 v. George 427 Stockton Railway Co. o. Barrett 136 Stoddard v. Long Island R. R. Co. 691 v. Mix 46 Stoddart v. Smith 406, 1488 Stoddert v. Bowie 1456 v. Newman 511, 515 v. Vestry of Port To- bacco Parish 379 Stoessiger v. South Eastern Rail. Co. 716, 719, 1340 Stogdell v. Fugate 1364 TABLE OF CASES. clxv Stokeld v. Collingson 872 Stoker !>. Brocklebank 1432, 1468 Stokes v. Cooper , 1081 v. Cox 1048 v. Lewis 882 v. Russell 1399 v. Saltonstall 684, 726, 728, 729, 730, 732 i». Stokes 108 Stone v. Bennett 958, 959 v. Bucknor 1422 v. Carr 215 v. Cartwright 861 v. Cheshire R. R. 680, 861, 862 v. Codman 623, 859, 860 v. Compton 773 v. Damon 189 v. Dennis 1076 v. Dennison 198, 201, 856 v. Denny 654, 1044, 1045 v. Evans 883 v. Fowle 1058 v. Gilliam 1201 v. Godfrey 1032 v. Hooker 749, 999 v. Lidderdale 136 4 v. Macnair 240 v. Marsh 1099 v. Metcalfe 106 u.Miller 1126 v. Peacock 522, 524 v. Pointer 627 v. Proctor 509 v. Rogers 614, 1263 v. Seymour 1111, 1112,1113 v. Sprague 155 v. State 554 v. Swift 556 v. Symmes 740, 1373 v. Vance 151 v. Waite 709, 710, 711 v. Whiting 460 v. Wythipoll 39 Stoner v. Ellis 1163, 1167 Stoolfoos v. Jenkins 208 Stoops v. Smith 149, 153 Storer, ex parte 1217,1220 Storer v. Gordon 1156 v. Gowen 664, 665 v. Great Western Railway Co.' 1430, 1468 v. Mitchell 943 Storey v. Atkins 1260 Storks, ex parte 267 Storr v. Crowley 707, 708, 711 v. Wyse 293 Story v. Adkins 879 v. Conger 431 v. Einnis 1186 Story v. Ips. Manuf. Co. 1156 v. Johnson 219 o. Livingston 1114 v. Richardson 1349, 1350 Stothard v. Aull 284 Stouffer ii. Latshaw 270 Stoughton v. Baker 297 v. Lynch 959, 960 Stourbridge Con. Co. v. Wheeley 136 Stourton, Lord, u. Meers 1480 Stout v. Ashton 779 Stoveld v. Eade 1116 v. Hughes 606 Stover v. Gordon 1082 Stow v. Russell 433, 434 v. Sawyer 81 v. Stevens 430 Stowell v. Goodenow 782 v. Robinson 432 Strachan v. Brander 998 v. Thomas 1227 Stracy v. Bank of England 49, 1125 Strader v. Houghton 779 v. Lambeth 141 Strafford Bank v. Crosby 7 79, 782 Strahan v. Smith 456 Strain v. Wright 208 Strange >•. Brennan 996 v. Holmes 1132 v. Leu 767 Stranks v. St. John 445 Straton v. Rastall 899 Stratton v. Mason 1146 v. Mathews 747 v. New York & New Haven Railroad 705 v. Pettitt 111 v. Rastall 1118 Stray v. Russell 927, 1427 Streathfield v. Halliday 1352 Street v. Blay 647, 649, 652, 656, 658, 825, 1322, 1331 p. Rigby 1183 Streeter v. Horlock 69, 81, 663, 796 Stretch v. Schenck 1507 Stretton, in re 815 Stretton v. Busnach 254 Stride «. De Mattos 1307 Strickland v. Maxwell 126, 506 v. Turner 517, 922, 1030, 1076,1503 Strithorst v. Graeme 1223 Strode v. Russell 148 Stroh v. Uhrich 1273 Strohecker v. Farmers' Bank 31, 105, 123, 141 Strobe ». Detroit &c. R. R. Co. 696 Strongu. Barnes 126, 628 v. Bliss 926 3lxvi TABLE OF CASES. Strong v. Foster 7 79 v. Hart 1139 w.Harvey 1012,1188,1194 u. M'Connell 921, 946 v. Smith 226 v. Taylor 538 Strother v. Barr 176 Stroud, re 449 Stroud o. Frith 148 v Marshall 187 Stroughill v. Buck 8 v. Gulliver 1453. Strutt v. Farlar 1324 v. Smith 570, 616 Strvker v. Vanderbilt 155 Stuart v. Crawley 701 v. Kirkwall 256 v. London & North Wes- tern Railway Co. 1424, 1456, 1480 i: Smith 833 v. Wilkins 631 Stubbing v. Heintz 289 Stubbs !'. Holywell Rail. Co. 37 7, 848 <■. Lund 601, 603, 604, 605, 608 )'. Parsons 473 Stuck}' v. Clyburn 644 Studdy r. Sanders 132 Studholme v. Mandell 1088 Studman v. Rose 196 Stultz v. Dickey 507 Sturdivant !>. Smith 516 Sturgeon v. Wingfield 1392 Sturges i'. Allis 947 c. Bush 971 v. Crowninshield 11 v. Robbins 29 Stur-is v. Darell 1227 Sfurh n r. Albany 32 Sturtuvnnt v. Ford 1370 v. Jaques 1496, 1500 Stuvvepant v. New York 1390, 1509 Styles r. Smith 590, 1019 v. Wartlle 1065 Suckley !•. Tunno 293 Suffield, Lord, v. Bruce 56, 70 Suffolk Bank v. Worcester Bank 1185, 1190 Sugars v. Brinkworth 992 Sullivan v. Jacob 30, 1469 v. Jones 452 v. Phil. & Reading R. R. Co. 727, 729, 732 v. Thompson 709 v. Tuck 1425 Summers v. Ball 9S9 ii. Solomon • 28 1 Summerville v. Elder 608, 609, 612 Sumner v. Ferryman 272 Summer v. Hamlet 522 v. Jones 588, 591, 592, 1018 v. .Parker 1086, 1090 v. Williams 6, 106, 309 Sunbolf v. Alford 679 Sunderland Marine Insurance Co. v. Kearney 77, 78 Surcome v. Pinniger 1451, 1454 Surplice v. Farnsworth 4 71 Surtees v. Hubbard 1381 Surtcll v. Brailsford 255 Surton v. Gilliam 952 Suse v. Pompe 156 Sussex Bank v. Baldwin 55 Sussex Peerage 130 Sutcliffe v. McDowell 1106 Suter v. Sheeler 1240 Sutherland v. Briggs 1452 Sutphen v. Fowler 1427 Sutton, ex pnrle 367 Sutton v. Craire 373 v. Dillayo 283 v. Great Western Rail. Co. 687 v. Gregory 345 v. Hawkins 1194 v. Irwine 350, 351 v. Kettell 151 c Mandeville 511 v. Morgan 955 v. Page 1110 v. Tatham 84, 883 f. Temple 471, 514, 679 v. Toomer 878 v. Warren 228 Suydam v. Clark 551 a. Jenkins 622 v. Jones 1388, 1389 Swain v. Morland 949 h. Shepherd 723 t>. Tyler 211 Swainsbury v. Jones 1420 Swaisland v. Dearsley 1024, 1025, 1459, 1461, 1473, 1477 Swampscot Machine Co. v. Par- tridge 142, 143 Swan v. Cox 426 v. Drury 424, 425, 431, 1084 v. Gage 228 v. Ne-mith 275, 276, 917 v. Sowell 1245 v. Stedman ^52 ». Steele 353 v. Wilkinson 226 Swancott v. Westgarth 615 Swann v. Phillips 581 Swanwick v. Sothern 606 Swartwout r. Burr 1436 Swasey v. Little 373, 883, 887 v. Vanderheyden 205 TABLE OF CASES. clxvii Swatman v. Ambler 7 Swayne v. Lyon 1496, 1500 Svvayze v. Hull 990 Sweany v. Hunter 61, 875 Swears v. Wells 1136 Sweat v. Arrington 1235 v. Hall 251 Sweatland v. Illinois & Miss. Tel. Co. 684, 685, 691 Sween v. Steele 436,437 Sweeney v. Ousley 520 Sweenie v. Sharp 263 Sweet v. Bartlett 821 v. Colgate 626 v. Harding 1209 v. Lee 928 v. Poor 997 v. Pyne 610 v. Seager 473 Sweeting v. Pearce 1098 Sweetser v. French 350, 351 Sweighart v. Berks 1342,1343 Sweitzer v. Hummel 425 Swetland v. Boston & Albany R. R. Co. 689, 690 v. Swetland 1474 Swett v. Patrick 658, 1329 v. Shumway 143, 148, 153, 159, 630, 634 Swift v. Barnes 621 v. Bennett 196, 198 v. Dean 462, 464 v. Hopkins 386 v. Thompson 501, 572 Swigert v. Graham 662, 679 Swindler v. Hilliard 682, 689, 691 Swinfen v. Chelmsford, Lord 835 v. Swinfen 817 Swinford v. Burn 809 Swinyard v. Bowes 1144 Swisher r. Swisher 1120 Switzer v. Skiles 409 Sydebotham, ex parte 205 Syers v. Bridge 142 v. Jones 157 Sykes v. Dixon 21, 798, 842, 1468 v. Giles 1097, 1098 Syler v. Eckart 422 Sylvester v. Girard 971 Symington v. McLin 295, 296 Symmes v. Frazier 12 Symmons v. Knox 1290 Syms v. Chaplin 716 T. T. P. & W. R. R. Co. v. Merriam 693, 706 Tabb v. Boyd 227 Taber v. Cannon 293,309 Tabram v. Freeman 994 Taffi' v. Warwick 501 Taft v. Baker 289 v. Buffum 320, 360 v. Kessel 431 v. Montague 825, 827 v. Pike 220 v. Sergeant 215 Taggard v. Loring 324 Taggart v. Stanberry 287, 1119 Taintor v. Prendergast 302, 305, 306, 308, 309, 315 Talbot o. Ford 1472 v. Gay 743, 744 v. Seeman 129 v. Whipple 459, 493 Talcot v. Wilcox 572 Talis v. Talis 984 Talley v. Great Western Rail. Co. 701 v. Robinson 1502 Talliaferro «. King 958 Tallis v. Tallis 985 Tallman p. Franklin 95, 413, 414 Talmadge v. Rensselaer & Sara- toga R. R. Co. 102 Talver v. West 563, 617 Tancred v. Christy 452, 513 Tandy v. Masterson 208 Tankersley v. Graham 316 Tanner v. Christian 310 . v. Scovell 606 v. Smart 1241,1242,1246,1262 ' Tansley v. Turner 524 Tapley v. Butterfield 345, 347, 352, 353 Taplin v. Florence 140, 419 Tappan e, Abbott 1353 o. Bailey 349 v. Brown 1016 Tappenden v. Randall 944, 952 Tapscott v. Williams 1342 Tarbell v. Dickinson 871 Tarbuck o. Bipsham 188 Tarling v. Baxter 519,520,521 Tarlton o. Baker 736 v. McWhorter 295 Tarner v. Walker 12, 800 Tarr v. Northey 1161 i'. Ravenscroft 892 Tarratt v. Lloyd 1438 Tarrent v. Webb 858, 859 Tarte v. Darby 441 Tasker v. Bartlett 1070, 1193 v. Shepherd 365, 1412 v. Small 1442, 1443 Tassall v. Shane 1126 Tassell i: Cooper 918 Tate v. Williamson 402, 977 clxviii TABLE OF CASES. Tate v. Wvmonrl 783 Tay lor r. Holt 961 Tatem r. Chaplin 1390 v. Johnson 776 Tatham v. Catamore 1165, 1167 r. Jones 35, 55 c Piatt 1456 . ('. Knox 951, 953 Tatlock v. Harris 912, 1374, 1377, v. Laird 847, 848 1378, 1379 v. Smith 1159 Tattersall v. Groote 359, 1183 Tatterson v. Suffolk Manuf. Co. 101 Tatum v. Bonner 739 v. Catomore 1165, 1167 Taunton v. Costar 487 Taunton Copper Co. r. Merchants' Ins. Co. 83 Taunton Manuf. Co. v. Smith 1337 Tayleur v. Wildin 489 Tayloe p. Merchants' Fire Ins. Co. 1 8, 1432 v, Sandiford 1317 Taylor, ex parte 205 Taylor v. Ashton 1044,1045 v. Baldwin 141, 882 v. Bank of Illinois 383 c. Barron 117 7 c. Bates 81G v. Beck 779 v. Beech 1450, 1454 v. Binney 739 v. Blacklow 819 v. Brewer 799 v. Briggs 116, 158, 1142 v. Brittan 236 v. Buchanan 267 v. Bullen 646 v. Burgess 784 v. Caldwell «62, 1076, 1077, 1484 v. Carpenter 258 v. Chapman 460 v. Chester 972, 976 v. Chichester &c. Rail. Co. 385, 996 v. Colton 881 v. Coryell 351 v. Cottrell 270 v. Croker 205, 223 v. Crowland Gas Co. 1004 v. Debar 1485 v. Fleet 639, 645, 1039 v. Grand Trunk Railway Co. 726 «. Great Northern Rail. Co. 690, 1062, 1075 «. Greely 1338 v. Green 282, 1036 v. Hare 924 v. Ili^ins 880, 914 v. Ili'liary 1169, 1372 v. Hilly er 355 (-. Lendey 917, 918, 1381 v. Lolmon 1444 v. Longworth 425, 1506, 1507 v. Luther 1474 v. Lynch 1362 v. Monnot 676 v. Morrison 784, 893 v. Mosely 1167 t. Needhara 463 v. Nussbaum 294, 1128 i . Owen 1 383 v. Patrick 46, 193 v. Perry 425 v. Plumer 567 v. Portington 1429, 1457 v. Pratt . 92 v. Ri'.'gs 154, 160 v. Ross 92 v. Rowland 437 v. Rymer 299 v. Sandiford 1111. 1112 v. Savage 891, 894 v. Shelton 313 i'. Shum 1398 v. Spears 1230 v. Steamboat Robert Camp- bell 18 v. Steele 163, 183, 1121 v. Stray 883 v. Taylor 319 v. Terme 321 V. Townsend 493, 500 v. Trueman 299 v. Wakefield 537, 557 r. Ward 871 v. Waters 418, 1274 v. Weld 1037 v. Wells 682 V. Welsford 1305 (i. Wheeler 1436 v. Whetmore 743 ,.. Wilson 1021 v. Young 361, 367 r. Zamira 46fi, 1267 Taymon v. Mitchell 630, 649, 651 Teagan v. Meredith 825 Teanue u. Hammond 340 ,•. Hubbard 340, 343 Teall v. Auty 421 V. Sears 082 Tebbetts v. Dowd 55 v. Haskins 823, 824 Tedliei;. Dill 1167 Teed v. Blandford 922, 923, 924 TABLE OF CASES. clxix Teede v. Johnson 1034, 1310 Teesdale v. Anderson 634-, 656 Tegetmeyer v. Lumley 1279 Tempest v. Fitzgerald 560 v. Kilner 541, 621, 1332 v. Ord 1135 v. Rawling 443 Temple v. Brown 445 v. Pomfroy ' 294 v. Pullen 1298 v. Seaver 364 Templeman v. Biddle 507 v. Fontleroy 956 Templer v. M'Lachlan 813 Tempson v. Knowles 38 Tenant v. Elliott 918 Ten Broeck v. Livingston 1496 Tendring v. London 1479, 1480 Tennent v. Tennents 31 Tenny v. Prince 62, 740 Terrell v. Bennett 581 Terrer v. Oven 21 Terrill v. Richards 320 Territt v. Bartlett 1003, 1004 v. Woodruff 129 Terry v. Belcher 572 v. Bissell 627, 931 u. Brown 842 v. Farrago 285 v. Robins 500 v. Wheeler 522 Tetley v. Wanless 1149 Tevis v. Brown 898 Tew v. Jones 515 Texada v. Camp 651 Thacher v. Phinney 4 Thacker v. Moates 295 Thackoorseydass v. Dhondmull 735 Thaekwell v. Gardiner 1440 Thallhimer <>. Brinckerhoff 996 Thame v. Boast 1103, 1322, 1323 Thames Haven &c. Co. v. Bryruer 428 Thames Iron Ship Building Co. v. Patent Derrick Co. 803 Thames Iron Works, &e. Co. v. Royal Mail Steam Packet Co. 1312 Thames Steamboat Co. v. Housa- tonic R. R. Co. 865, 866, 867 Tharin v. Ficklin 425, 430, 431 Tharp v. Farquar _ 303 Thatcher v. Dinsmore 5, 6, 24 v. England 11, 800 v. Gammon 946 v. Morris 128 Thaxter v. Edwards 1210 Thayer v. Brackett H 95 v. City of Boston 382 v. Clemence I 398 v. Elliott 128, 131 Thayer v. Kelley 52 ft v. Lapham 518 v. Middlesex Mut. Fire Ins. Co. 18 v. Mills 1242 v. Niles 422 v. Rock 420, 1001 v. Turner 1093 v. Wadsworth 830, 847 v. White 211 The Brig Sarah Ann 519 The Constantia 602 The Francis & Cargo 259 The Hoop 1000 The Hull of a New Ship 1365 The Huntress 708 The Indian Chief 260 The Mary 1178 The Ocean 260 The Palo Alto 18 The Peytona 709 The Schooner Reeside 83, 143, 157 The Waldo 709 Thellusson v. Fletcher 1334 Theobald v. Colby 1267 v. Railway Passengers Assurance Co. 1329 Thetford v. Hubbard 1188, 1198 Thetford, Mayor of, v. Tyler 451, 455 Thibodeau v. Levassuer 133 Thicknesse v. Bromilow 346, 357 Thickstun v. Howard 675, 676 Thimbleby v. Baron 1147 Thimblethorp v. Hardesty 341, 1344 Thing v. Libbey 218, 221 Thistleton v. Frewer 807 Thistlewood v. Cracroft 939, 944, 945 Thorn v. Bigland 578, 1044 Thomas v. 1349 v. Afflick 1065 v. Bishop 91 v. Blackman 15 v. Boston & Prov. R. R. Co. 662, 668, 683, 689, 703, 709, 710, 712, 713, 714 v. Brady 928 v. Cadwallader 469, 1083, 1086 „. Clark 337 v. Cook 460, 760, 894 v. Courtnay 775, 1054 v. Davis ' 743, 744 v. Derring 546, 1441, 1486, 1489 v. Dickinson 422, 439 v. Dike 200,857 v. Edwards 308 v. Evans 1194 v. Freelon 1170 v. Hawkes 969 clxx TABLE Op CASES. Thomas v. Heathorn 616, 1101, 1102, 1128, 1143, 1381 v. Hopper 1279 u. Lanier 425 !'. McCann 1044 v. MeCormack 1474 U.Marshall 1236 v. Packer 451 v. Pemberton 369 k. Rhymney Rail. Co. 731 1-. Roberts 206 u. Robinson 1177 v. Roosa 1208 v. Shillibeer 1379 v. Shoemaker 1064 v. Southard 1178 u. Thomas 68, 75, 149, 484, 907 u.Todd 1106 v. Von Kapff 1390 v. Williams 68, 750, 751, 754, 756, 757, 851 v. Winchester 635 v. Woodruff 849 Thomason v. Frere 352, 360, 364 Thombleson u. Black 1432 Thompkins v. Saltmarsh 662 Thompson v. Alger 541, 615, 1330, 1331 •.-. Babcock 903 u.Bell 284,1174 v. Blackstone 1468 o. Bond 569 v. Botts 644, 649 u. Brown 1115 v. Charnock 1183 u. Christian 9 u. Conover 527 v. Davenport 308 u. Davies 408 v. Dominy 724, 135 7, 1370 v. Dorsey 210, 213 v. Emery 1359, 1360, 1369 v. Gillespy 1086 v. Gordon 1230 v. Gould 81, 82, 422, 517, 520, 521,523, 625, 921, 928, 1030, 1453, 1484 v. Guthrie 436 v. Hake-will 1386, 1396 v. Hall 92 v. Hamilton 222, 834 v. Harvey 245 v. Hazen 836 v. Ketehum 145 v. Lack 1155 v. Lacy 674 v. Lapworth 473 v. Lay 216, 220 Thompson u. Leach 215 u. Lindsay 631 u. Maberley 449, 483 v. Maceroni 563, 613 v. Miles 434, 1075 v. Moore 1038 u. O'Sullivan 251 v. Page 32, 51 v. Parish 1274 v. Patrick 671 v. Percivallll8, 1140, 1377, 1379 v. Perkins 274, 275, 276 v. Peter 1264 u. Rose 565 v. Shattuck 1387, 1389 u. Snow 324 v. Staats 836 u. Stent 376, 377 v. Stewart 285 u. Tate 640 v. Thompson 600, 1297 v. Waithman 1259 u. Wesleyan Newspa- per Association 349 v. Williamson 319 v. Wilson 459 a. Young 763 Thomson u. Davenport 300, 308, 309, 315 v. Redman 1270 u. Thomson 1466 Thorn u. Thorn 413 Thornborow v. Whitacre 30, 1323 Thornbury v. Bevill 15 Thorn by u. Lacy 74 Thorndike v. De Wolf 321,324 v. Godfrey 292 u. United States 1197 Thorne v. Deas 43, 61, 665, 666, 667, 797 v. Smith 1109 Thornett v. Haines 406, 409, 938 Thornhill u. Neats 1088 Thornton u. Appleton 1168 v. Charles 552 o. Court 1421 v. Davenport 572 v. Fairley 50 „. Ilhngworth 204, 220, 221, 1245, 1292, 1353 v. Jenyns 52, 69 v. Kempster 5, 549, 551, 552 u. Meux 552 u. Place 652, 827 v. Sherratt 987 u. Thackray 737 u. Thompson 651 v. Wynn 55, 649, 650, 1142 TABLE OF CASES. clxxi Thorogood v. Bryan 734 Thorold v. Smyth 1098 Thoroton v. Whitehead 660 Thorpe v. Booth 1072 v. Coombe 1282 v. Eyre 510 v. Thorpe 46, 1270 v. White 826, 844, 846, 847 Thorsgood r. Marsh 690 Thrall v. Newell 111, 112, 136, 627 Thrasher c. Ely '743 i\ Everhart 128,129, 132 v. Tuttle 223, 1098 Thresher v. East London Water- works Co. 494, 501, 502, 503 Thrupp v. Fielder 216 Thrustout 1. Crafter 1171 Thunder v. Belcher 456, 1396 Thurber v. Blackburne 1178 Thurgood 0. Richardson 1156 Thurlow v. Gilmore 221, 1116 Thurman v. Wild 1133 Thurnell v. Balbirnie 1086 Thursby v. Plant 1387, 1399 Thursday v. Gray 7 79 Thurston v. Blaisdell 1187 v. Blanchard 1093, 1144 v. Fisher 1221 v. Franklin College 428 v. Martin 1336 v. Mills 908, 947, 949 v. Percival 811, 996 * v. Thornton 13 Thwaites v. Mackerson 810 Thweatt v. Jones 897 Thynne i>. Glengall, Earl of 423, 1453 Tibbets v. Towle 538 Tibbetts v. Gerrish 1359 Tibbits v. George 899, 913, 1360, 1366, 1367 Tibeau v. Tibeau 1474 Ticonic Bank v. Smiley 883 Tidswell v. Whitworth 4 73 Tidy v. Mollett 447 Tielens v. Hooper 114 Tiernan v. Andrews 301 u.Jackson 915,1360,1377 v. Rapier 1209 v. Roland 432 Tiffany v. Johnson 936 Tildesley v. Clarkson 445 Tileston v. Nettleton 751, 754, 1356 v. Newell 1082 Tillett v. Chester Bridge Co. 1435 Tilley v. Damon 269 v. Thomas 433, 434 Tillotson v. Boyd 1398 v. Hargrave 202 v. McCrillis 214,317 Tillotson v. Preston 959 v. Rose 884, 1231 Tillou v. Britton 1190,1268 v. Clinton & Essex Mut. Ins. Co. 1164, 1166 Tilson v. Warwick Gas Light Co. 379 Tilton c. Gordon 946 v. Russell 214 u, Tilton 1430, 1451, 1459 Timbers v. Kate 225 Timmins v. Gibbins 931 v. Rawlinson 448, 485 Timmis v. Piatt 1410 Timrod v. Shoolbred 630 Timson v. Ramsbottom 1367 Tinckler v. Prentice 1190 Tindal, ex parte 1297, 1413 Tindal v. Bright 344 Tindall v. Conover 431 Tingley v. Cutler 24 Tinker v. McCauley 739 Tinney 1: Ashley 424, 425, 429, 1058 Tinslar v. May 928 Tipper v. Bicknell 33 Tippet v. Hawkey 1345 Tippetts v. Heane 1252 v. Walker 297 Tisdale's case 68 Tisdale v. Buckmore 1093 f. Harris 541 Tison v. Smith 432 Titchbourne v. White 697 Titcomb v. Seaver 276, 278, 304 v. Thomas 1366 v. Wood 566 Titsworth v. Winnegar 673 Titus v. Ash 1237, 1246 v. Hobart 134 v. Preston, Lady 1064 Tobacco-pipe Makers v. Loder 1216 Tobey v. Barber 150 v. Bristol Co. 1434 Tobias v. Frances 501 Toby, re 812 Toby v. Reed 572 Todd u. Emly 339, 612 v. Gee 1420, 1421 v. Hoggart 434 v. Kerrick 839 v. Maxfield 1304 v. Robinson 288 0. Stewart 1171 t>, Stokes 239, 242, 245 v. Taft 1426 Toland v. Murray 317 Tolar v. Tolar 4 Toledo &c. R. R. Co. v. Hammond 698 Toler v. Armstrong 259, 973 Tolhurst v. Brickenden 93 clxxii TABLE OF CASES. Tolland o. Sprague 1217 Tolley v. Green 100, 101 Tombeckbee Bank v. Dumell 361, 364 Tomkins v. Ashley 170 v. Savory 170 v. White 405 Tomkinson v. Staight 563 Tomlin r. Dutton 1306 Tomlinson v. Benthall 87, 393 v. Day 453 v. Gell 753 v. Manchester & Bir- mingham Railway Co. 1466 v. Savage 407, 408, 410 Tompkins v. Brown 1 242 v. Haas 532 Toms v. Wilson 116 Tooke o. Hollingworth 597 v. Meering 182 Tooker v. Bennett 346, 1155, 1357 v. Smith 452 Tooley v. Wyndkam 39 Toomer v. Lucas 1026 Tope c. Hockin 910, 911 Topham v. Braddick 917, 1073, 1230 o. Morecraft 391 v. Roche 283 Toplis v. Grane 748 Toppin c. Field 1297, 1299 v. Lomas 412 Topping, ex parte 1241 Topping v. Biekford 379 u. Root 1071 Torriano v. Young 467 Torrington v. Lowe 746 Torry v. Holmes 309 Tottenham v. Townsend 1435 Totterdell v. Fareham Brick Co. 384 Totty v. Nesbitt 1169 Touissant v. Martinnant 70, 89, 745, 889, 891 Toulmin v. Hedley 649 v. Steere 283 Touteng v. Hubbard 1077 Towell «TGatewood 641,643,046 Tower v. Moor 1356 v. Utica & Schenectady R. R. Co. 687, 700 Towers v. Barrett 1092 v. Osborne 543 Towle v. Larrabee 588, 1019 v. Leavitt 409 v. Marrett 836 v. Stevenson 292 Town v. Plendee 288 Towne v. Butterfield 462 v. Campbell 484 v. Collins 535 Towne v. D'Heinrich 515 V Grover 755 v. Wiley Townend v. Drakeford 209 551 • v. Toker 24, 25, 30, 1439 Townley Towns v v. Crump Birchett 598 296 V Mead 1225 V Nims 1176 Townsend v. Burnham 211 v. Carpenter u. Champernowne v. Cowing 1360 1447 310 v. Crowdy 930 c. Deacon 1223 p. Hubbard 310 v. Inglis 1098 v. Jamison 133 !'. Neal 1347 v. Newell 802 u. Riddle 346, 779, 1357 v. Wells 1209 Townshend, Marquis, v Stangroom 1025, 1459, 1460, 1473 Townsley v. Chapin v. Sumrall 29 1439 , 756 Towson v. Havre de Grace Bank 6 75, 676, 1197 Tracy v. Reed Strong 1170 1190 V. Talmadge 583, 585, 58C ,973, 977. 1002 I'. Wood 662, m, 665 Trafton . Hawes 6,8 3. U. S. 1354, 1357 Traherne v. Gardner 940 Traill v. Baring 1037, 1048 Train v. Gold 17, 21, 29, 31, 32 , 999, 1176 u. Jones 743 Trask v. Vinson 439, 1067 Traver v. 32 v. Halsted 430 Travinger v. M'Burney 979 Treadwin v. Great Eastern Rail. Co. 716 Treasurers v. Johnson 779 Treat v. Orono 938 v. Stanton 75 Tredwen v. Bourne 339 v. Holman 1183 Trelawney v. Thomas 952 Tremain v. Liming 430, 1058 Tremeere v. IMorison 1394 Trenchard v. Hoskins 118 Trent v. Banning 1497 Trent & Humber Co. in re 1325 Trent & Mersey Navigation v. Wood 682 TABLE OF CASES. clxxiii Trent Navigation Co. v. Harley 780 Trenton Bank v. Wallace 1171 Tress v. Savage 447 Treuttell v. Barandon 300 Trevivian v. Lawrence 1176 Trevor v. Wood 18 Trew ;;. Burton 1169 Trickey v. Larne 1140 Trimbey v. Vignier 1 28 Trimble i>. Coons 353 u. Thorne 55 Triplett v. Scott 1096 Tripp v. Armitage 531, 834 v. Bishop 426 v. Thomas 1336 v. Tripp 1092, 1093 Trisler v. Williamson 1119 Tritton r. Foote 1432 Trott v. Wood 117 Trotter v. Howard 572 Troughton v. Hill 253, 254 v. Johnson 407 Troup v. Smith 1235 v. Wood 408 Trousdale v. Darnell 474 Troutman v. Gowing 1487 Trowbridge v. Chapin 685 v. Holcomb 1208 v. Wetherbee 413, 422 Trowell v. Castle 1166 v. Youmans 702 Troy, Society in, v. Goddard 51 v. Perry 51 Troy Tump. & R. R. Co. v. M\ Chesney 378 Trucks v. Lindsey 1474 True v. Bryant 796 v. Fuller 739 v. International Telegraph Co. 691 Trueman v. Hurst 205, 962, 969 v. Loder 143, 279, 286, 296, 297, 305 Truett v. Chaplin 46, 48 Trull v. Bigelow 567 v. Eastman 1382, 1388 Trumbull v. Tilton 58, 263, 994, 1051 Trundy v. Farrar 275, 276, 378, 379 Trust v. Delaplaine 409 Tryon v. Whitmarsh 58 1 , 1 044 Tubb v. Harrison 214 Tubbs v. Van Kleek 795 Tuberville v. Ryan 353 v. Whitehouse 204 Tuck v. Fyson 368, 369 v. Tooke 1051 Tucker v. Baldwin 1118 v. Barrow 962, 964 v. Buffington 556 Tucker v. Gordon 225 v. Humphrey 601, 604, 605, 608 v. Ives 953, 1220 v. Madden 1459 v. Magee 1363 v. Maxwell 150 v. Moreland 194, 206, 219 v. Randall 1172 v. Tucker 1281 v. Wilson 670 v. Wood 921 v. Woods 11, 14, 20, 21, 73 Tuckerman v. French 742 v. Hinkley 590, 592 u. Newhall 346, 1146, 1152, 1357 Tuffnell v. Constable 66, 67, 1079 Tufts v. Adams 1392, 1400 Tugwell ». Heyman 375 Tulk 17. Moxhay 87, 1384 Tullett v. Armstrong 1442 Tullock v. Dunn 1258 Tunnel v. Pettijohn 685 Tunney v. Midland Rail. Co. 857 Tunstall v. Boothby 1364 Tupper v. Cadwell 194, 196, 197, 204 v. Foulkes 4 Turley v. Bates 518, 522 Turnbull v. Strohecker 1275 v. Trout 275 Turner v. Baines 396 r. Bank of North America 258 v. Bissell 321, 324 v. Browne 1132 r. Cameron's Co. 457, 513, 515 v. Chrisman 58, 263 *. Clay 1504 c. Coolidge 538, 556 0. Davies 71, 892, 894 v. Diaper 825, 1274 v. Egerton 881 v. Evans 117 v. Hardey 1372 v. Harvey 403, 1468, 1502 v. Hayden 1058, 1069, 1071 v. Jones 1100 v. Lamb 469 v. Liverpool Docks, Trus- tees of 528,' 604, 609 v. Mason 838, 839, 843 v. Meymott 487 v. Partridge 52 v. Phillips 778, 835 v. Power 166, 168, 176 v. Reynal 807 v. Richardson 370 clxxiv TABLE OF GASES. Turner v. Robinson v. Rookes (i. Ross .. Fillebrown 799 v. Hillegas 7 05 v. Howell 782, 783 v. Jarvis 280 v. Kirkpatrick 765, 779, 1111, 1116 v. M'Daniel 143, 799 v. M'Rac 130 v. Parmele 304, 305 v. Ripley 799, 1103 v. Simpson 779 v. Sturges 1367 v. Thompson 346 v. Tillotson 765 v. Wardwell 1110 v. Williams 282, 286 v. Win ship 345 U. S. Bank v. Binney 329, 330, 344, 349 u. Davis 283 United States Tel. Co. v. Gilder- sleeve 691 Unity Joint Stock Mutual Bank- ing Association, ex parte 195 TABLE OF CASES. clxxv Unwin v. Wolsey Upham v. Lafavour 274, 281 v. Prince v. Smith Upsdell v. Stewart Upshare v. Aidee Upston o. Stark Upton v. Else 1261, v. Fergusson v. Suft'olk County Mills v. Townend 512, Urmston v. Newcomen Urquhart v. ftlclver Usher v. Dauncey v. De Wolfe 45, 1359, Uthwatt v. Elkins Utica Bank v. Van Geison Utica Ins. Co. v. Bloodgood 585 v. Caldwell t>. Kip 945 v. Scott v. Toledo Ins. Co. 386 805, 1117 739 1146 873 683 683 1264 746 287, 646 1081 213 297 365 1364 398 928 , 944 944 974 944 278 V. Vail v. Foster v. Rice v. Strong Valandingham u. Huston Vale v. Bayle Vale, Vouchees Valentine v. Farrington ... Ford v. Foster v. Packer v. Piper Vallee v. Dumergue Vallett v. Parker Valpey v. Gibson v. Manley v. Oakeley Van v. Corpe Vanada v. Hopkins Van Alden v. Vanderpool Van Allen v. Humphrey Van Alstine v. Wimple Van Alstyne v. Van Slyck Van Amringe v. Peabody Van Arsdale v. Howard Van Benschooten v. Lawrence Van Bracklin v. Fonda Van Bramer v. Cooper 1135 142 518,654 1224 613 188 779 254 58, 263 294 294 1178 349 545, 605 942 622, 623 1460 287, 293 295 1439 420 1355 297 1042,1044 958 635 222 Van Buskirk v. Hartford Fire Ins. Co. 135 v. Ins. Co. 1369 r. Warren 128 Van Casteel v. Booker Vance v. Bank v. Blair v. Bloomer 1201, 1206 528, 605 870 340, 1200 1202, 1204, 1209, 1213 1172 1127 951 229 1491, 1496 544 454, 515 v. Lancaster v. Lukcnbill i7. Vance c. Wells Vancouver v. Bliss 1058. Vandenbergh v. Spooner Vandenheuvel v. Storrs Vanderbilt v. Eagle Iron Works 828 !>. Richmond Turnpike Co. 868 Vandergucht v. De Blaquiere 989 Vanderslice r. Newton 1076 Van Derveer v. Wright " 739, 770 Vanderwerker v. Vermont Central B. R. Co. 833 Van Deusen v. Blum 353, 828 Van Doren v. Everitt 507 Van Duyne i\ Dreeland 1458 Vandyck v. Hewitt 946 Vane v. Cobbold 1049 Van Epps v. McGill 758, 1378 v. Van Deusen 226 Van Eps v. Dillaye 362, 1140 c. Schenectady 406, 429 Vanhooser v. Logan 1208 Van Home v. Grain 1397 Van Kenren v. Parmelce 1248 Van Marter v. Babcock 983 Van Ness v. Forrest 342 v. Packard 497, 500, 507 Van Orden v. Van Orden 373 Van Pelt v. Corwine 200 Van Reiinsdyk v. Kane 133 Van Rensselaer v. Bradley 1389 v. Kearney 1388 v. Roberts 1112,1115 Van Sandau v. Brown 820 c. Corsbie 1295 Van Santvoord v. St. John 705, 709 Vansittart i>. Vansittart 256, 989, 1467 Van Slyck v. Pulver 756 Van Staphorst v. Pearce 303, 316 Van Steenburg v. Hoffman 1135 Van Toll v. South Eastern Rail. Co. 691 Van Valkinburgh v. Watson 211, 212, 213, 239 Van Vleet v. Adair , Van Wart v. Woolley Van Winkle v. Ketcham Van Wyck v. Montrose Van Zandt n. New York Varner v. Nobleborough Varney v. French 781, 1323 1144 208 954 1507 1136 588, 1018 clxxvi TABLE OF CASES. Varney v. Grows 1221 v. Hickman 920 v. Young 210, 214 Varnum v. Martin 816, 817 v. Milford 283 Vassar v. Camp 18 Vasse v. Smith 208, 209 Yasser v. Vasser 1474 Vauglian v. Aldridge 789 v. Goode 952, 955 v. Hancock 412, 420 v. Matthews 899, 908, 937 v. Yanderstegen 1442 Vaughton v. Brine 165, 166 Vaupell v. Woodward 541, 1458 Vauxliall Bridge Co. v Spencer, Earl 995 Veasey v. Doton 1039 Vcazcy v. Harmony 1211 Veazie v. Holmes 530 v. Hosmer 827, 828 v. Somerby 90 v. Williams 282, 290, 292, 402, 407,408, 1036, 1092 Vedder v. Yedder 1125 Veitch f. Russell 836 Venal tie e. Thompson 141 Venezuela, Central Rail. Co. of,,. Kisch 1041 Yemiall v. Garner 733 Venning v. Leckie 181, 341 Vent v. Osgood 194, 198 199, 200, 857 Ventress v. Smith 535 Ventris v. Shaw 1239 Vere v. Ashby 293 333 , 353, 357 Vernon v. Keys 580, 1039, 1042, 1049 v. Manhattan Bank 362 v. Manhattan Company 362 o. Smith 1388, 1389, 1390 v. Winstanley 30 Verree o. Hughes 954 Vcrrv v. McHenry 1302 Vertiie v. Jewell 600, 601, 60S Very v. Very 287 Vessey v. Mantell 1344 Vest v. Wier 934 Vianna v. Barclay 291 Vibbard v. Johnson 626 Vicars v. Wilcocks 1325 Vice v. Anson 325 v, Fleming 358 Vick v. Keys 572 Vi chary t-. Moore 155 Virkery v. Welch 982 Victors v. Davies 70 Vidal v. Girard 401 Viele v. Hoag 775 Viele v. Troy & Boston Railroad 30, 1483 Vielie v. Osgood 97 Vigers v. Pike 1036, 1037, 1039, 1041, 1502, 1503 Vignolles v. Bowen 404, 1492 Vilas v. Downer 811,835 Vincent v. Cole 168 v. Cornell 538 v. Leland 646, 649 Vine v. Mitchell 1049 Viner v. Hawkins ,934 Vines v. Arnold 1172 Vincy v. Chaplin 1097 Viniiig v. Gilbreth 536, 537 Vinton e. Peck 589 Violett v. Patton 29, 92 v. Powell 306 v. Sympson 1233 Viranny v. Warne 809 Vischer v. Yeates 919 Viser v. Bertrand 56 Vivian v. Campion 469, 1398 Vlierboom v. Chapman 1081 Vollans ». Fletcher 166 Von IJadelzen v. Swann 172 Von Hemert v. Porter 958, 959, 960, 1224 Vonhollen v. Knowles • 427 Vooght v. Winch 1 1 75, 1 1 76 A r oorhees v. De Meyer 406 u. Earl 649, 651, 657, 1089, 1328 o. Wait 222 Voorhis v. Freeman 491, 492 Vorley v. Barrett 1034, 1311 Vosc v. Grant 897 v. Handy 1366 v. Philbrook 1277 Voss v. Bachop 816 Vouillon v. States 1461, 1463 Yyiar v. Hopkins 783 Vy.se u. Wakefield 1070, 1073 Vyvian v. Arthur 1391 W. W v. H 1073 W. & N. O. Tel. Co. v. Hobson 725 Waddilove v. Barnett 466 Waddiu gton v. Bristow 181, 18i ,415 v. Francis 173 v. Oliver 617, 1059 v. Roberts 1308 Wade's case 1189,1190,1192, 1196, 1209 Wade v Colvert 193 v. Grimes 224 , 228 TABLE OF CASES. clxxvii Wade v. Haycock 796, 828, 831 u. Simeon 38, 40 v. Wheeler 686 Wadhara v. Marlow 1399 Wadleigh v. Sutton 828 v. Veazie 1170 Wadsworth v. Alcott 157 v. Marshall 821 v. Thomas 1238 Waggener v. Waggener 1497 Wagner v. White 514 Wagnon v. Clay 350 Wagonseller v. Snyder 736 Wagstaffe, ex parte 1286 Wailing v. Toll 203 Wain v. Bailey 1138, 1169 v. Warlters 2, 11, 91, 94, 761 Wainman v. Kynman 1254 Wainscott v. Silvers 1484 Wainwright v. Hardisty 1440 v. Webster 1107 Wait v. Baker 526, 604, 612 v. Gibbs 916 v. Maxwell 189 v. Wait 756, 757, 758 Waite v. Delesdernier 1097 v. Gale 373, 375 v. Harper 994 v. Jones 973, 990 v. Leggett 930 v. North Eastern Rail. Co. 734 Waithman v. Wakefield 233, 234 Wake v. Harrop 313,1034 v. Tinkler 1281 Wakefield v. Brown 1342, 1343 v. Lithgow 1106 v. Newbon 272, 942 v. Smart 1221 v. Stedman 141 Wakeman v. Rutland, Duchess of 1446 Walan v. Kerby 977 Waland v. Elkins 325 Waibank v. Quarterman 872 Walbridge v. Harrison 263 Walcott v. Canfield 345 v. Keith 669 Walden v. Bodley 462 v. Sherburne 321, 329, 346 Waldo, The 709 Waldo v. Belcher 524, 525 v. Martin 991, 1056 Waldo Bank v. Greely 349 Waldron v. Chase 519, 524, 525 Wales v. Ford 664 n. Wetmore 926, 938 Wales &c. Co., Prince of, v. Hard- ing 385 Walford v. De Pienne 254 Walford c. Gray 1454 Walker's case 1399 Walker v. Ames 946 v. Bank of State of New York 314 v.Barnes 955,1190,1490 v. Bartlett 420, 745, 746, 1428 v. Bayley 953 v. Blake 540 v. Boiling 858, 866 v. British Guarantee Asso- ciation 766 v. Broadhurst 1324 t;. Butler 1253 v. Campbell 1244 v. Clements 1275 v. Clyde 531, 532 v. Constable 413,950, 952 v. Cox 1436 v. Davis 193, 208 v. Dixon 617 v. Eastern Counties Rail- way Co. 1433 v. Forbes 743, 744 i\ Giles 128 v. Great Western Rail. Co. 294 v. Hatton 470, 1328 v. Hill 929 t'. Jackson 682, 696, 697 v. Jeffreys 433, 1507 v. Laighton 212, 239, 242, 246, 247, 1278 v. Laverty 55 v. Lovell 974 v. McCulIoch 346, 1154, 1156, 1356 v. Massey 564 v. Moore 435 v. Neville 1307, 1308 v. Norton 749 v. Orange 827, 828 v. Penniman 758 v. Perkins 979 v. Richardson 460 v. Rostron 166, 171, 915, 1380, 1381 v. Sargeant 821, 1367 v. Sharpe 474, 483, 485 v. Sherman 490, 492, 501 v. Simpson 207, 241 v. Smith 281, 296, 666 v. Swartwout 386 v. Taylor 757 v. Wills 955 v. Witter 87 v. Woodbridge 610 vol. I. I clxxviii TABLE OF CASES. Walker v. York & North Midland Rail. Co. 692 Wall u. Bushby 202 v. Hinds 493, 499, 500, 1341, 1344, 1346 v. Stubbs 1501, 1502 Wallace v. Agry 1135, 1136 v. Branch Bank *293 v. Breeds 523 o. Floyd 82 v. Hardacre 991, 993 u. Harmstad 1167 v. Ins. Co. 120 v, Kelsall 1132 v. Lewis 219 v. McLaren 1346 v. Morss 208 v. Rogers 150, 151, 638 v. Saunders 278 v. Vigus 702 v. Woodgate 802 Waller v. Andrews 473, 1110 v. Cralle 270 v. Lacy 1111, 1240 v. Morgan 441 v. South Eastern Rail. Co. 858 Walling v. Kinnard 425 Wallis v. Broadbent 168 v. Carpenter 278 v. 1 >ay 985 v. Harrison 419 v. Hirsch 1183 v. Littell 159 v. London & South West- ern Rail. Co. 688 v. Manhattan Co. 279 v. Swinburne 1297 v. Wallis 111 u. Warren 805 Walls v. Atcheson 460 Walmesley v. Nelstrop 1153 Wahnsley v. Lindenberger 210, 1354 Walpole v. Bridges 689 Walrad v. Petrie 139, 1061 Walradt v. Maynard 816 Walrath v. Ingles 522 v. Norton 1119 v. Thompson 776, 777, 778, 782 Walroud v. Walroud 1469 Walsh v. Bailie 776 v. Durkin 1171 v. Fussell 986, 1390 v. Pierce 284 v. Trevanion 120, 121 v. Whitcomb 280 Walsham o. Stainton 1235 Walstab v. Spottiswoode 926 Walter v. Haynes 1106 Walter v. James v. Locke u. Ross v. Smith Walters v. Morgan 1096 1458 303, 608 671 1459, 1474 v. Northern Coal M. Co. 1432, 1508 v. Short 1164 v. Smith 48,49,1102 o. Tomkins 1253 Waltham's, Lord, case 1497 Walthew v. Crafts 1020 Walton v. Cody 632 v. Craig 623 v. Dickerson 821 v. Mascall 768 v. Robinson 1249, 1254 v. Sherburne 320 Walworth v. Routh 133 Wamburze v. Kennedy 1235 Wann v. Western Union Tel. Co. 691 Wansbrough v. Maton 490, 498 Waples v. Hastings 206 Warburg v. Tucker 1298, 1300 Warburton v. Great Western Rail. Co. 859 Warcop v. Morse 74 Ward's case 499 Ward v. Allen 992 v. Arredondo 1427 v. Audland 60, 625 v. Ball 511 v. Byrne 984 v. Const 472 v. Evans 290, 912, 1098 o. Fryer 32, 760 v. Gould 571 v. Henry 889 v. Howell 1248 v. Hunter 377, 1241, 1264 v. Johnson 346, 1155, 1173, 1354, 1357 u. Lewis 5 v. Londesborough, Lord 165, 926 v. Morris 1367 v. Motter 1354 v. Shaw 522 v. Shew 284 v. Sumner 571, 573, 669 Wardell v. Usher 500 Warden v. Geer 701 v. Green 682 v. Jones 1454 Warder v. Tucker 31 Wardle v. Fowler 736 v. Nicholson 810 Wardwell v. Foster 263 v. Haight 362 TABLE OF CASES. clxxix Ware v. Gardner 570 v. Gay 730, 732 v. Webb 1265 Waring v. Cunliffe 958 u, King 453 v. Manchester &c. Rail- way Co. 1467, 1504 v. Mason 306, 637, 643, 649 c. Richardson 317 v. Smyth 1165, 1167, 1168 v. Waring 191 v. Williams 1162 Warlow v. Harrison 314, 409, 410, 552 Warman v. Faithfull 441 Warn v. Bickford 1269 Warne v. Hall 456 Warner's case 400 Warner v. Beardsley 779 u. Booge 33 v. Daniels 581, 1039, 1045, 1421, 1503 v. Erie R. R. Co. 858 v. Hatfield 425, 431 v. Hitchins 468 v. Humphreys 376 v. Martin ' 297 u. Thurlow 957 v. Western Transportation Co. 698 v. Willington 96 Warre v. Calvert 766, 1322 Warren, in re 318, 319 Warren v. Batchelder 75, 912, 1374, 1378 v. Buckminster 524, 525, 600, 946 u . Copelin 132, 1368, 1369 v. Flagg 1177,1178 v. Jewett 523 v. Layton 1167 v. Leiand 416 v. Mains 1087,1197 v. Manuf. Co. 975 v. Merryfield 117,126 u. Nichols 1185 v. Ocean Ins. Co. 379 v. Saxby 836 v. Skinner 1127 v. Stearns 32 v. Walker 1146, 1239 v. Wells '1278 v. Wheeler 45,160,424,437, 1070, 1084, 1359,1360, 1361, 1377, 1380 v. Whitney 53, 58 v. Williams 226, 227 Warren Academy v. Starrett 1246 Warren Bank v. Suffolk Bank 297 Warring v. Monroe 836 Warrington v. Early 1163 v. Furber 181, 780, 786 Warwick v. Bruce 204, 222, 415 v. Nairn 1094, 1140 v. Noakes 1106 v. Richardson 1056 v. Slade 553 v. Warwick 283 Washburn v. Merrill 1474 v. Goodman 360 ,-. Gould 106, 117 v. Hale 228, 251 v. Merrill 1474 v. Sproat 500 Washington v. Brymer 1146 v. Jones 20, 540 Washington Bank v. Lewis 285 v. Prescott 1110 v. Shurtleff 786 Wasney v. Earnshaw 374 Wason v. Rowe 103 Waterbury v. Graham 761 Waterfall v. Penistone 490 Waterhouse v. Keen 940 v. Skinner 73, 619 v. Stansfield 1427 Waterlow v. Bacon 1310 Waterman v. Burratt 270 i'. Johnson 149 v. Meigs 542, 543, 544, 545. 546 Waters v. Bean 56 v. Bristol 22, 790, 1089 ,. Howard 1430, 1434, 1455 v. Mansell 925 v. Rilev 787, 892, 1356 v. Thanet, Earl of 1232, 1233, 1263 v. Tomkins 1112, 1253 v. Towers 1328 v. Travis 406 Watertown v. Cowen 1390 Waterford &c. Rail. Co. v. London & North Western Rail. Co. 1183 Wathen v. Sandys 1353 Watkins v. Ashwicke 1186 v. Baird 270 v. Eames 51 v. Halstead 53, 56 u. Hewlett 170, 1121 v. Hill 1136 v. Hodges 155, 156, 1148 v. Holman 1427 v. Maule 1411 v. Otis 936 v. Stevens 1246, 1250 u. Stocket 1039 r. Vince 181 clxxx TABLE OF CASES. Watkinson v. Bank of Pennsyl- vania 362 f. Ingleby 1101,1122, 1124, 1128 v. Root 958 Walling v. Walters 393, 857 Watriss v. Pierce 765, 776, 784 Watson v. Ainbergate &c. Railway Co. 683 v. Atkins 473 v. Blane 1120 v. Charlemont, Earl of 901, 926, 1036 c. Denton .655 v. Dixon 1475 v. Fuller 954 v. Henscll 196, 1277 v. Hetherington 1187 v. Home 474 v. Jacobs 758 v. King 278,512 v. Lane 465 v. McLaren 92, 739 o. Marston 1434, 1435, 1471, 1486 v. Mid Wales Rail. Co. 1282 a. Muirhead 818 r. Murrell 311 v. Pears 1064 v. Poulson 5 79 v. Randall 36, 1373 v. Reid 1507 v. Spratley 420, 541 v. Threlkeld 240 v. Walker 1070, 1072 v. Wells 359 Watt v. Evans 1453 Watts v. Ainsworth 96 v. Friend 416, 544, 587 v. Rees 1279 v. Salter 926, 927 v. Sheppard 434 v. Shuttle-worth 784 v. Waddle 431, 1427 Waugh !'. Bussell 1169 v. Carriger 1140 v. Carver 326, S27, 329, 330, 331 v. Cope 1252 v. Middleton 120 v. Russell 107 v. Skunk 796 Wayv. Bassett 1258 v. Foster 589, 1019 <.. Hearn 741, 773, 1028, 1036 v. Sperry 54, 55, 58, 135, 263, 1216, 1223 v. Way 838 Way's Trusts 4 Wayde v. Carr 728 Waydell v. Luer 1140 Way land's case 287, 289 Wayland e. Mosely 151 Wayman v. Hilliard 96 Waymell v. Read 58 Wayne v. Commercial National Bank 773 v. Kirby 779 v. Steamboat General Pike 116, 142, 158 Weakley v. Bell 1372 Weakly v. Brahan 881 Weatberall v. (jeering 1390 Weatherford v. Fisliback 579 Weaver v. Backert 790, 791 v. Sessions 1092 v. Stokes 206 Webb v. Austin 432 v, Brooke 879, 1009 ti. Browning 275, 835 u. Dickinson 1117 o. Direct London & Ports- mouth Railway Co. 1424, 1428 v. Fairmaner 615, 1064, 1065 v. Fox 267 ,. Goldsmith 1128 v. Heme Bay Commissioners 8 a. Hughes 433, 434 v. James 765 v. Jiggs 373 v. London & Portsmouth Railway Co. 1472, 1473, 1504 «'. Page " 875 v. Paternoster 418 o. Plummer 145 v. Pond 760 i). Rice 1474 ,. Russell 74, 78, 1383, 1386. 1396 v. Spicer 1147 v. Steele 1368 o. Stone 1090, 1092, 1093 v. Wilshire 939 Webber v. Davis 589 v. Stanley 122 v. AVilliams College 293, 1239 Webster v. Bray 319 r. Cecil 1461 r. Dillon 1433 v. Drinkwater 906 v. Ela 93, 544 v. Enfield 855, 1092 i.. Kirk 1232 u. Larned 313 ..'. Lee 1172, 1180, 1269 v. Peck 572 v. Spencer 377 v. Webster 1368 TABLE OF CASES. clxxxi Webster v. Woodford v. Wyser v. Zielly Weddall v. Capes Weddell v. Lynam Wedgwood v. Adams Wedlake v. Hurley Weed v. Carpenter v. Crocker 187 1133 94 460, 484 925 1472, 1483 915 308 440 v. Jewett 529, 1359, 1362, 1363, 1365 o. Panama K. K. Co. 726 v. Richardson 355 u. Saratoga & Schenectady R. R. Co. 698, 704, 730 v. Snow 1119 Week v. Tibold 13 Weeks v. Burton 1044 v. Elliott 1125 v. Hasty 951, 953 v. Hull 1064 v. Hunt 1367 v. Leighton 200 v. Merrow 211 v. Tybold 13 v . Wood 572 Weeton v. Woodcock 495, 496 Weidner v. Schweighart 1103,1105 Weigall v. Waters 1269 Weigley v. Weir 1119 Weightman v. Caldwell 540 Weiler v. Hoek 779 Weir v. Weir 838 Weisenger v. Taylor 676 Weisser v. Maitland 1 20 Welby v. Drake 1103 Welch v. Lawson 82, 436 v. Matthews 424 Welchman v. Farebrother 1313 v. Sturgis 378, 909 Weld v. Baxter 1393 v. Hadley 1210, 1211 u. Nichols 420, 759 v. Traip 440 Wellar r. Deakins 928 Wellard v. Moss 169, 1120 Weiler v. Baker 257 Welles v. Castles 470, 514 v. Fish 1235 Wellman v. Southard 1242, 1256 Wells v. Abernethy 621, 622, 952, 955, 1323 v. Banister 80, 500 v. Caiman 468, 1484 v. Evans 291 v. Foster 1364 v. Girling 879, 1051, 1053 v. Hopkins 1140 v. Horton 101 Wells v. Malbon 1405 v. Masterman 354 v. Maxwell 434, 1068, 1429, 1430 v. Padgett 22, 790, 791, 795 V. Porter 883 v. Ragland 1223 v. Smith 434 v. Spear 645 v. Waterhouse 936 v. Wells 46, 194 v. Williams 259 Welsford v. Wood 1376 Welsh v. Bayaud 423, 1422, 1486 v. Bell 596 j;. Lawson 422 v. Myers 369 Wenman v. Mohawk Ins. Co. 1232 Wennall a. Adney 27, 52, 53, 54, 58, 393, 857 Wentworth v. Bullen 51, 1126 v. Cock 1411,1412,1413 v. Cook 139 v. Day 12 v. Outhwaite 601, 605, 606 v. Tubb 188 v. Wentworth 1128 Wentz v. De Haven 1145 Wermwag v. Pawling 1178 Werner v. Humphreys 376, 1412 Wernwag v. Brown 954 West, re 205 West v. Andrews 397 v. Blakeway 502 ,.. Bolton 538 v. Cunningham 630 c. Cutting 649 . Bussard 1239 Weyant v. New York & Harlem R. R. 865 Weymouth v. Babeock 1127 Whaley v. Bagnel 1453 v. Moody 351 Whalley v. Wray 700 Wharton v. Hudson 911, 926 v. Lewis 793 u. M'Kenzie 195, 196, 202 v. Walker 902. 912, 914, 1365, 1374, 1379, 1380 v. Walton 1 74 Whatman v. Gibson 1384 Wheadon v. Olds 929, 930 Wheat v. Cross 18 Wheatcroft v. Hickman 328 Wheatley r. Bastow 784 c. Calhoun 413 i . Low 42 i'. Miscal 200 v. Slade 1025, 1487, 14HK y. Williams 963 Wheaton r. East 203, 219 v. Hibbard 939 Wheeden v. Eiske 823, 824, 1089 Wheeler e. Board 921 v. Bramah 3 7o v. Branscomb 457 u. Collier 4 07 v. D'Esterre 1456 v. Home 516 r. Krai's 279, 1192, 1197 u.Lewis 7 70 v. Newbould 157, 670 v. Newton 1486 v. Nichols 537 v. Russell 584, 587, 971, 975, 1004 t. Spencer 736 v. Styles 436 v. Train 571 v. AVheeler 280, 1101 Wheeloek v. Doolittle 1248 v. Freeman 111, 1101, 1163 v. Thayer 1382 r. Wheelwright 668, 6S1 Wheelton v. Hardisty 1036, 1047, 1048 Wheelwright v. Depeyster 535 v. Moore 740 v. Wheelwright 5 Whelan v. Sullivan 93, 1451, 1457 r. Whelan 1050 Whelden c. Chappel 1019 Whelpdale's case 273 Whinchup c. Hughes 923 Whipple v. Dow 211, 213, 214 v. Foot 41 7 r. Gilpatrick 539 v. Stevens 892, 1248, 1252, 1254, 125 7 v. Thayer 53 7 Whippy t. Hillarv 124S Whistler u, Forster 1368, 1370, 1411 Whiston r. Stnditer 12S Whitaker v. Bank of England 80 c. Brown 346, 347 r. Cone 997 v. Sumner 151, 555, 671 v. Whitaker 224 c. Wisby 261 Whitbeek v. AVhitbeck 422 Whitby o. Whitby 92 Whitcher o. Hall 777 TABLE OF CASES. clxxxiii Whitchurch v. Bevis 1447, 1450, 1453, 1458 Whitcomb v. Whiting 1252, 1257 tr. Williams 902, 929, 946, 1136, 1372 v. Wolcott 790 White's case 1483 White o. Anderson 1463 v. Arndt 495, 497 v. Atkins 847, 848 v. Bailey 1225 v. Bartlett 918 v. Bass 974, 1003, 1004 v. Beeton 1084 v. Boulton 728 v. Brocaw 7 v. Buss 586, 878 u. Butcher 1483 v. Chapman 804 v. Chouteau 316 v. Cox 192, 1465 v. Cuddon 403, 1438, 1449, 1468, 1469, 1489 v. Cushing 263, 264 v. Cuyler- 234, 1161 v. Damon 1434, 1480, 1502, 1503 v. Demary 665 v. Devvitt 51 v. Dinglev 1146, 1147 v. Dobson 1488 v. Flora 208 v. Foljambe 432 v. Foster 416 v. Franklin Bank 585, 944, 972, 974, 976, 1004 v. Garden 566, 567, 1035, 1037 v. Gardner 998 o. Great Western Rail. Co. 687, 690 v. Hale 1248 v. Hancock 78 v. Hardin 406 v. Humphrey 66 7 v. Hunt 369 v. Hunter 945, 1037 v. Jordan 62, 1101, 1127, 1252, 1254 v. Mann 1072, 1073, 1077 v. Morris 575 v. Murphy 362 v. North 172 v. Nutt 1508 j.-. Oliver 827, 828 v. Parker 1U9 v. Parkin 155 v. Perley 1205 v. Phelps 220 v. Proctor 413, 553 White v. Royal Exchange Assur- ance 1283 v. Sayer 157 v. Skinner 311, 314 c. Snell 1083 v. Spettigue 534 v. Trumbull 1111 v. Walker 1148 v. Watkins 415 v. Webb 681 v. Weeks 24 v. Welsh 537, 556 v. Westport Manuf. Co. 286 293, 294 v. Wheaton 579 v. White 1427 v. Whitney 1392, 1397, 1400 v. Wilks 523 v. Williams 1473 v. Winnisimmet Co. 682, 700, 727, 733 v. Wood 925 v. Woodward 741 Whitefield v. Longfellow 270 v. McLeod 630, 631 Whitehead v. Anderson 604, 607, 608, 610. 611 v. Clifford 459 v. Evans 910 v. Greetham 43, 666 <5. Howard 962, 1245, 1263 v. Hughes 364 c. Lord 820, 1230 v. Potter 51 c. Tattersall 1179, 1180 v. Tuckett 284, 288, 289 (•. Walker 1232 Wliiteliill v. Wilson 1145 Whitehouse v. Frost 524, 606 v. Liverpool Gas Co. 110 Whitehurst r. Boyd 126, 127 Whitemore c. Whitemore 404 Whiteside v. Jennings 437, 438, 439 Whitesides v. Russell 711 Whitestown v. Stone 51 Whitfield o. Collingwood 1167 v. Le Despenser, Lord 683 Whitham, in the Goods of 1406 Whiting v. Brastow 495, 499 v. Earle 214 v. Sullivan 86, 89 Whitlock's case 1395 Whitlock v. Heard 670 v. WaltoB 1221 Whitman v. Freese 633, 642 v. Leonard 361, 363 Whitmarsh v. Cutting 505 v. Hall 200, 857 n, Walker 417 clxxxiv TABLE OF CASES. Whitmel v. Farrel 1482 Whitmore v. Coats 117, 621, 1331 v. Gilmour 266, 1417, 1419 v. South Boston Iron Co. 143, 632, 633, 634, 657 v. Steamboat Caroline 698, 700, 728 Whitney v. Bigelow 1238, 1249 v. Cochran 82, 422 v. Crosby 1065 v. Dinsmore 1398 v. Dutch 206, 222 v. Eaton 539 v. Goddard 1221, 1224 v. Gordon 474 v. Groot 743, 770 v. Lee 664 v. Slayton 982, 983, 984, 1330 v. Spencer 1080 v. Sutton 640, 643 v. Union Railway Co. 1384 Whiton v. Mears 744 Whittaker v. Barker 510 v. Howe 985, 1433 Whittemore v. Gibbs 541 v. Whittemore 1180, 1492 Whittingdon v. Corder 1478 Whittingham's case 222 Whittle v. Skinner 1366 Whitton v. Smith 345, 360 Whitwell v. Bennett 903 v. Vincent 86, 539, 596, 906 v. Warner 382 Whitworth v. Crockett 181 Whywall r. Champion 204 Wichals c. Johns 50 Wick v. Hodgson 183 Wickens v. Evans 982 Wickham v. Taylor 1123 Wicks v. Hunt 1422 Widdle v. Lynam 925 Wieler v. Schilizzi 634 Wigfield v. Nicholson 1307 Wigg v. Shuttleworth 1002 Wiggett v. Fox 859 Wiggin v. Bush 994, 1051 v. Damrell 1359, 1360, 1369, 1377 v. Day 566 o. Doolittle 1111 v. Foss 1093 v. Peters 1064 v. Tudor 346, 1152, 1154, 1356 Wiggins v. Hammond 347 v. Keizer 69, 99 v. Scammon 139 Wigglesworth v. Dallison 144, 157, 506 i>. Steers 192, 193, 1465 Wightman v. Coates 22, 789, 790 v. Townroe 328 Wigley v. Ash ton 376 Wigmore v. Jay 857 Wihen v. Law 1292 Wikoff's Appeal 1167 Wilbeam v. Ashton 1094 Wilbur v. Cartwright 640 v. Crane 48 v. How 408 i'. Sproat 947 v. Wilbur 1166 Wilburn v. Larkin 311 Wilby v. Phinney 342 v. Warren 1197 v. West Cornwall Rail. Co. 704 Wilcox v. Howland 270, 957, 958 v. Hunt 131 v. Parmelee 682, 704 v. Plummer 1234 v. Roath 216 v. Routh • 285 v. Singletary 351 v. Storkey " 1183 v. Wilcox 838 v. Wood 507, 572 Wild v. Harris 792 v. Hillas 1310 Wildbore v. Rainsforth 476 Wilde v. Annsby 1164, 1165, 1167 v. Baker 934 v. Clarkson 1322 v. Fort 433, 1068 v. Gibson 282, 1036, 1045, 1449 v. Griffin 998 Wilder v. Aldrich 906 v. Cowles 309 Wildes v. Fessenden 1140, 1379 v. Savage 742, 743, 744 Wildey v. Collier 995 Wiles v. Woodward 8 Wiley v. Collins 1366 v. Knight 283 v. Lashley 572 v. Robert 414 v. Shoemak 1208 Wilford v. Grant 897 Wilkes v. Caulk 1166, 1168 v. Ferris 537, 555 v. Rogers 213, 214 Wilkins v. Bromhead 530, 532 v. Commercial Bank of Natchez 284, 285 v. Duncan 309 v. Reed 801, 1140, 1379 TABLE OF CASES. clxxxv Wilkins v. Stevens 617, 1209 v. Vashbinder 492 v. Wood 472 Wilkinson v. Byers 48,1102 r. Candlish 1097 v. Colley 479 v. Coverdale 666 v. Evans 548 p. Frasier 324, 840 v. Gaston 112, 113, 118, 1064 v. Godefroy 916, 920 v. Jett 320 v. Johnson 1169 v. Johnston 932 v. King 535 v. Lindo 1152 v. Lloyd 620, 927, 1345 v. Malin 476 v. Martin 803 v. Oliveira 31 v. Scott 8, 150, 422, 1119 v. Sterne 1111 v. Torkington 1432 v. Verity 1067, 1229 v. Wilkinson 1436 Wilks v. Atkinson 182 v. Back 308 Willan v. Willan 1473 WiUard v. Clark 1168 u. Eastman 1442 v. Germer 1109 v. Newbury 861 v. Sperry 1101, 1172 v. Stevens 641 v. Stone 222, 790, 793 i'. Tayloe 1434 Willatts v. Busby 1437, 1439 v. Kennedy 29, 37 Willes v. Glover 281 b. Greenhill 1367 Willet v. Willet 906 Willett v. Chambers 346 Willey v. Parratt 166, 926 Williams, ex parte 954 Williams v. Adams 522 v. Alexander 46 v. American Bank 953, 954 v. Bacon 6, 94, 305, 546 v. Bailey 491, 500, 1469 v. Barr 1197 v. Bayley 273, 1466, 1475 v. Beeman 1388 v. Birbeck 279, 286 v. Bland I486 v. Bosanquet 1394, 1395, 1397 v. Branson 682, 689 v. Brown 270 v. Bullmore 1 Williams v. Burgess 563 v. Burrell 79,445,1395 v. Byrne 843 v. Carter 1480 v. Carwardine 12, 800 - v. Chambers 268, 1419 v. Christie 150, 309, 310 v. Clough 858 v. Craig 959 v. Cubarras 919 v. Cummings 1119 v. Dakin 1317, 1318 v. Davies 1291 v. Deacon 910 v. Earle 1328 v. East India Co. 978 v. Edwards 1488 v. Evans 1098 v. Everett 914, 915, 1365, 1380 v. Fowler 244, 247 v. Gessy 677 v. Gilchrist 355 ... Grant 689 v. Great Western Rail. Co. 695 v. Gridley 1256 v. Griffiths 1111, 1220, 1239, 1240 „. Harrison 205 v. Hart 650 i-. Hathaway 9, 58, 440 „. Hayward 1392 v. Healey 1084 ... Hedley 939, 944 v. Henshaw 342, 343 ,, Higden 1420, 1488 v. Hill 662, 1078 u. Hitchcock 727 v. Hodgson 352, 353 u. Hutchinson 215, 838 v. Ingram 644 v. Innes 1247 v. Jackman 530, 531 !.. Jones 87. 142, 160, 319, 418, 419, 812, 1225 v. Lake 544 v. Leper 750, 756, 757 v. Littlefield 804 t). Lloyd 662, 1074, 1078 v. London Commercial Exchange Co. 1129 v. Mayor 516 v. Millington 316 v. Mitchell 281, 284 v. Moore 55, 205, 889 v. Morris 140 u. Ocean Ins. Co. 1281 v. Pasquali 477 clxxxvi TABLE 01 Williams v. Paul 592 o. Pigott 338 v. Powell 31, 661 v. Protheroc 996, 998 r. Rawlinson Illy, 1118 v. Reed 929 v. Reeves 1336 v. Reynolds 024 v. Robbins 263, 264, 304 v. Robinson 55 v. Shaw 1449 v. Sherman 511 v. Smith 578, 954 v. Spaffbrd 637,638 v. Stanton 743, 1122 v. Stoughton 167 v. Tappan 587 (. Taylor 727 v. Walbridge 351 v. Walsby 1100 v. Wheeler 133 v. Williams 15, 1433, 1455 Williams College o. Danforth 32, 51 Williamson v. Allison 654 v. Berry 518 i:. Clements 33 c. Oonnaday 287 v. Dawes 253, 254 v. Dillon 621, 622, 1334 r. Hall 1346 v. Henley 880, 996 v. MeGinnis 346 <., Nay lor 1236 i). Sroft 383 v. Watts 205, 981 u. Williamson 995 v. Wootten 1467 Willie i'. Green 902, 939, 1135 Willing v. Peters 58 Willings v. Consequa 346, 621 Willington v. Inhabitants of West Boylston 1083 Willins v. Smith 1249 Willis, re 1271, 1287 Willis v. Baldwin 1035 v. Bank of England 283 ». De Castro 1155 v. Dyson 35H v. Hill 357 c. Hobson 881 u. Newham 125G v. Peekham 61, 875 v. Twomblv 223, 1367 r. Willis " 519, 520, 521 Willison v. Patteson 259, 261 v. Watkins 462, 507 Williston u. Williston 433 Willoughby v. Horridge 703 v. Willoughby 139, 1061 ' CASES. Wills v. Bridge 1 73 v. Murray 138 v. Nurse 257 v. Stradling 1452, 1454 <: Sutherland 78 Wilmhurst v. Bowker 601, 602, 605, 618 Wilmot b. Hurd 646 v. Smith 824, 1097, 1187 v. Wilkinson 426, 1059 Wilmouth p. Patten 1203 Wilsey v. Dennis 429 Wilson, ex parte 328, 994 Wilson v. Abbott 448, 483, 484 r. iEtna Ins. Co. 1.214 i>. Appleton 1218, 1223 v. Backhouse 634 u. Baptist Education Soci- ety 51 it. Barthrop > 313 i . Bevan 105 ii. Braddyll 1147 v. Brett 663, 665, 667 v. Burr 56, 247, 811, 835 ii. Chesapeake & Ohio R. R. Co. 693, 696 u. Cheshire 229 i>. Chisholm 442 v. Clements 15 ,. Coffin 816,817 v. Cookson 837 .. Coupland 912, 1374, 1378, 1380 i. Craven 768, 769 v. Curzon, Viscount 340 ,=. Cutting 343 r. Eaton 615 v. Ferguson 644 c. Ford 248 c. Furness Railway Co. 1430, 1467 (.. Gabriel 1282 n. George 623 v. Greenwood 36 7 v. Hart 87, 150, 1385, 1387 v. Henderson 1166, 1167 v. Hicks 1337 v. Holcomb 143H i'. Hooper 572 v. Hurst 1116 v. Kearse 221 c. Kemp 130i i'. Knott 833, 107N v. Lancashire & Yorkshire Rail. Co. 725, 1325, 1326 v. Lewis 355 v. Little 67o o. Marsh 637, 954 v. Martin 100, 101 TABLE OF CASES. clxxxvii Wilson v. Merry v. Milner v. Mitchell v. Mushett v. Pearse v. Peverly v. Poulter 859 749, 897 1293 989 204 282, 866 290 v. Ray 934, 1051, 1054 v. Russ 817 v. Sergeant 899, 928 v. Short 1041 u.Smith 175,242,244,297 v. Spencer 436, 437 v. Troup 106 v. Tucker 819 v. Tumman 290 v. West Hartlepool Rail- way Co. 423, 1451, 1468 v. Whitehead 334 «. Williams 851, 355, 1437, 1441, 1487, 1489 v. Wilson 433, 969, 989, 1027, 1042, 1469 v. York & Maryland Line R. R. Co. 297 v. Y. & M. R. Road 664 v. Zulueta 181, 310 Wilson and Wormal's case 578 Wilsons v. Hamilton 682, 697, 700, 701 Wilt v. Welsh 208, 209 Wiltburger v. Randolph 952, 953 Wilton v. Chambers 812 p. Dunn 456,466 v. Harwood 1451 v. Middlesex R. R. Co. 727, 865, 866, 867 Wiltshear v. Cottrell 490, 494, 499 Wiltshire v. Marshall 192 v. Sims 81, 296 Winans v. Huston 1147 Winch v. Keeley 1418 n. Winchester 1463 Winchell v. Latham 25 Winchester v. Evans 1178 o. Hackley 296, 1359 v. Howard 13, 150 v. Hunter 149 Winchester, Bishop of, v. Mid- Hants Railway Co. 1436, 1443 Windham's case 136, 1342, 1345, 1347 Windham v. Way 498 Windsor's, Dean and Chapter of, ease 1387 Winebrinner v. Weisiger 979 Wing v. Clark 520, 521, 612 v. Hurlburt 247 v. Mill 71 Wingan Indigo Society v. Kidd 1245 Wingfield v. Packington 688 Winman v. Roper 47 Winn y. Albert 1458 v. Ingilby 49 v. Southgate 844 Winne v. Reynolds 1496 Winship v. Bank of U. S. 329, 330, 344,345, 347 v. Bass 1156 Winslowu. China 1064 v. Copeland 107 v. Hathaway 952 v. Merchant Ins. Co. 491, 492, 493 v. Patten 136 v. Rand 1398 v. Vt. & Mass. R. R. Co. 689 Winsor v. Cutts 324, 834 v. Dillaway 83 v. Lombard 630, 636, 641, 642 a. Savage 881 Winstead v. Reid 831 Winston v. McCormiek 1215 Winstone v. Linn 843 Winter v. Brockwell 418 v. Devreux 1486 v. Trimmer 1322 Winterbottom v. Ingham 453 v. Wright 858 Winterstoke Hundred's case 1347, 1350 Winthrop v. Carleton 960 v. Curtis 953 Wintle v. Crowther 330, 347, 355 Winton v. Sherman 425 Wirrall c. Brand 376 Wise v. Charlton 172 v. Great Western Rail. Co. 694 u. Metcalfe 467 v. Ray 97 Wiseman o. Lyman 900 v. Vandeputt 601 Wisner v. Bulkley 947 Wiswall v. Brinson 861, 866 v. McGowan 406, 1148 v. McGown 1422 Witbeck v. Waine 9, 440 Witherby v. Sleeper 20 Witherow v. Witherow 599 Withers v. Atkinson 1167 v. Baird 431 v. Bireham 1344, 1345, 1411 v. Greene 649 v. New Jersey &c. 711 v. Pinchard I486 v. Reynolds 1091 v. Weaver 60 Witherspoon v. Anderson 436 v. Dubose 227 Witherup v. Hill 916 clxxxviii TABLE OF CASES. Withington v. Herring 331 Withey v. Cottle 1426, 1428 v. Mumford 1388, 1389 Witte v. Derby Fishing Co. 379 Wittersheim v. Carlisle, Lady 1230 Wittington v. The Farmers' Bank &c. 1268 Wodehouse v. Farebrother 783, 1310, 1311 Wodell o. Coggeshall Woelper's Appeal Wolf v. Bealcs v. Goddard v. Oxholm v. Weiner v. Western Union Tel. Co. Wolfe Howes <*. Luy»tci' v. Mersereau v. Myers v. Whitenian Wolfersberger v. Bucher Wolff v. Koppel Wollaston o. Ilakewill Wolseley v. Cox Wolveridge v. Steward Wontner w. Shairp Wood v. Akers v. Argyll, Duke of v. Ashe v. Bell v. Benson v. Bernal v. Bodwell v. Braddick i'. Connell v. Copper Miners' Co. v. Corcoran 214 v. Crocker v. Curling v. De Mattos v. Dixie v. Dodgson f. Downes v. Dunn v. Dwarris v. Fenwick 214 225 1281 379 259 465 691, 693 849 407, 409 860, 861 151 1232 1279 274, 275, 276 1394, 1397 172 126, 744 16, 927 1280 336 638, 645 530, 532 68, 69, 421, 755 1496 Wood v. McCann v. McClure v. Malin v. Manley v. Mann 995 668 134 140 567 1136 361 330 93, 1310 757, 758 708 673 1308 575 1288 1365 1100 1047, 1312 200 v. Goodridge 276, 285, 294, 308, 310 v. Griffith v. Hewett v. Hickok u. Hitchcock v. Keep v. Lake v. Leadbitter v. Leland v. McCain 1432, 1489 503 953, 959 1194, 1195 404 418 140, 419 70, 71, 889 292, 293 v. Midgley 15, 1447, 1448, 1450, 1458 v. O'Kelley 233 v. Partridge 1365 v. Priestner 7 71 v. Richardson 1468 v. Koach 609 v. Robbins 951, 952, 953 v. Roberts 1052 v. Rowcliffe 122 v. Scarth 404, 1025, 1460, 1461 v. Smith 643, 951, 959, 1288 v. Tassell 613 „. Tate 380 v . Warner 1427 v. Watkinson 133 v. White • 1442, 1443 v. Wood 214, 919, 1010 v. Yeatman 607 Wood & Foster's case 517, 529, 1363 Woodbridge v. Allen 1240 v. Bridgham 1064 v. Perkins 1361 v. Spooner 145 o. Wright 133, 134 Woodbury v. Luddy 1487, 1489 v. Robbins 655 Woodcock v. Bennett 431, 1470 v. Gibson 397 Woodes v. Dennett 314 Woodford t\ Darwin 364 v. McClenahan 287 Woodgate v. Knatchbull S72 v. Potts 1293 Woodger t>. Great Western Rail. Co. 725 Woodham v. Baldock 574 Woodhouse v. Shepley 988 Woodin v. Burford ' 294 Woodland v. Fear 931 Woodley v. Coventry 527 Woodman u. Chapman 227, 1403 v. Eastman 141, 1119 v. Freeman 1421 c. Hubbard 1019 Woodruff v. Dobbins 1122 v. Halsey 500 v. Heniman 594, 973 v. Logan 199 Woods v. Carlisle 1278 v. Devin 686, 698, 727 v. Dike 1458 v. Edwards 21 v. Foote 1307 TABLE OF CASES. clxxxix Woods v. Hall 407 v. Hudson 408 v. Kirk 1037 v. McGee 523 v. Rice 73 v. Russell 531 v. Schreader 1106 v. Verry 822 v. Williams 1149 Woodward v. Downer 364 v. Gyles 1321 v. Harris 1425 v. Miles 1122, 1124 v. Newhall 210, 1353 v. Seely 419 v. Thacher 651, 657 Wookey v. Pole 300 Wooley v. Batte 898 Woolfolk v. M'Dowell 1130, 1133 Woollam v. Hearn 1029, 1459, 1460 Woolley v. Clark 378 v. Jennings 771 v. Watling 515 Woolsey v. Bailey 612 v. Tompkins 296 Wootley v. Gregory 461 Wooton v. Hinkle 409 Wootton v. Steffenoni 258, 1341, 1386 Worcester v. Eaton 194, 270, 585, 939, 944, 945, 992 v. Green 462 v. Marchant 214 Worcester Bank v. Reed 764 v. Wells 131 Worcester Medical Inst. v. Harding 103, 116 Word v. Vance 207 Wordsworth v. Willan 728 Worrall v. Munn 97, 99 Worsley v. Demattos 571 v. Wood 67, 1087 Worster v. Proprietors of Canal Bridge 1336 Worth v. Northam 1038 Worthen v. Stevens 89 v. Wilmot 621, 622 Worthington v. Cowles 627 v. Curd 1359 v. Grimsditch 1254, 1255 v. Hyler 107 v. Sudlow 390 v. Warrington 124, 435 i'. Wigley 1131 Worthy v. Johnson 626 v. Jones 101 ji. Patterson 657 Wotton v. Cooke 1347 Wray v. Lister 1338 v. Milestone 342, 343, 966 Wren v. Pearce 92 v. Wardlaw 160 Wright v. Barnes 599, 617 v. Beal 659 v. Burrowes 487, 1396 v. Butler 898, 1173,1176 v. Caldwell 728 v. Cobleigh 821 v. Colls 922 v. Crookes 160, 645, 975, 1036 v. Dame 1436 v. Dannah 99, 553 v. Fairfield 266, 1414 v. First Crockery Ware Co. 1372 v. Goff 1461 v. Greenroyd 807 v. Hart 630, 634, 635, 653 v. Haskell 1043 v. Howard 1491 i.. Jelly 1307 v. Johnson 765, 776 v. Laing 1115 v. Lawcs 603 v. Leonard 232 v. Newton 922 v. New York &c. R. R. Co. 858, 859 v. Oakley 1224 v. Post 1343 v. Powell 332 v. Puckett 1456 v. Reed 1196 v. Russell 766 v. Shawcross 1120 v. Southwood 954 v. Stavert 420 v. Steele 205, 221 v. Tetlow 531 v. Trevezant 441 v. Turner 844 o. Verney, Lord 999 v. Weakley 149 v. Wilcox 865, 868 v. Wilson 404 v. Wright 253, 254, 823, 1168, 1400 Wrightson v. Pullan 363 Wrightup v. Chamberlain 658, 1329 v. Greenacre 869, 872 Wrigley v. Smith 163 Wroth v. Johnson 736 Wuesthofi'u. Seymour 1024, 1473, 1474 Wyatt !-. Hertford, Marquis of 1098 v. Hodson 1252, 1257 Wyburd v. Stanton 1056 v. Tuck 660 Wycherley v. Wycherley 7 cxc TABLE OF CASES. Wycombe Railway Co. v. Donning- ton Hospital 1423 Wycombe Union v. Eton Union 393 Wyke v. Rogers 775, 780 Wyld v. Hopkins 338 v. Pickford 663, 687, 694, 714 Wyman v. Ballard 1388 v. Farnsworth 934 v. Gray 92 v. Hallowell & Augusta Bank 282, 286, 379 v. Hook 516, 907 v. Smith 915 v. Winslow 1201, 1203, 1211 Wyndham v. Chetwynd 94 Wynn v. Cox 154 c. Morgan 1068, 1480 v. Shropshire Union Rail. Co. 1076 Wynne v. Price 1426, 1428 v. Wynne 1191 X. Xenos v. Danube &c. Railway Co. v. Wickham 1080 4 Y. Yale v. Eames 364 Yallop v. Ebers 1299 Yancey v. Brown 744 Yarborough v. Abernethy 419 v. Bank of England 378 u. Beard 276 Yates r. Aston 878 v. Bell 1380 v. Boen 187, 192 v. Bond 627 v. Brown 860 v. Cole 1396 v. Eastwood 943 v. Freckleton 1097 c. Hoppe 913 v. Nash 1339 v. Pym 638 v. Thompson 133 Yauger r. Skinner 402, 1441 Yea v. Fouraker 1245, 1262 Yeakle v. Jacob 416, 418 Yeates v. Foot 736 v. Pim 144, 158, 636 Yellowly v. Gower 1395 Yeomans v. Chatterton 994 Yerby v. Grigsby 276, 294 Yerger v. Warren 865, 866 Yonge v. Reynell 1475 York v. Grindstone 674 Yorke v. Grenaugh 675 York Co. v. Central R. R. Co. 690 Yorks v. Peck 1356 Yost v. Devault 1423 Young v. Adams 931, 1106 <■. Austen 145, 524, 596 v. Axtell 332 v. Bank of Bengal 1284 ...Black 1171,1176 o. Burton 1425 v. Clerk 1503 v. Cole 883 v. Covell 1044 v. Frost 1474 v. Geiger 1290 o. Grote 932 v. Gye 1277 v. Hall 579, 1043 v. Harris 1041 v. Hope 1296 v. Hunter 333 r. Machall 1222 v. Mantz 468 v. Marshall 906, 950 v. Matthews 522 v. Moeller 725 v. Monpoey 1239 u. Murphy 794 u. Paul ' 97 v. Raincock 8, 125 v. Rathbone 1496 v. Smith 702, 710, 805, 1013 v. Taylor 1294 v. Timmins 982, 984 u . White 829, 831 v. Winter 1300 Younger v. Givens 621 Youqua u. Nixon 620, 1074, 1209 Z. Zabriskie v. Smith 1361, 1364 Zagury v. Furnell 523 Zane v. Zane 46 Zerbe v. Miller 838 Zickafosse v. Hulick 420 Zinn v. Rowley 1210 Zouch v. Parsons 194, 201, 215 Zunz v. South Eastern Rail. Co. 691 THE LAW OF CONTRACTS. A TREATISE CONTRACTS CHAPTER I. Sect. I. Of the different Kinds of Contracts, and of their General Requisites. II. Of Implied Contracts. Sect. III. Of the Form and Construc- tion of Simple Contracts. IV. Of stamping Agreements. Different kinds of contracts. 1st. Of record. 2d. Under seal. 3d. Simple contracts. 4th. Nature and properties of simple contracts as distinguished from contracts under seal. SECTION I. 2 Definition and requisites of a simple contract. 1st. Of the assent of the parties. 2d. Of the consideration. Of the plaintiff being a stranger to the consideration. The term Obligation is used by the Roman jurists, and by Potliier in the preliminary article to his treatise on Obligations, as denoting, in its proper and confined sense, every legal De fi n ; t i on f tie which imposes the necessity of doing of abstaining te ™s- from doing any act ; and as distinguished from imperfect obliga- tions, — such as charity and gratitude, — which impose a general duty, but do not confer any particular right ; as well as from natural obligations, which, although they have a definite object, and are binding in conscience, cannot be enforced by legal remedy. English lawyers, however, generally use the word obligation in a more strict and technical sense, namely, as importing only one VOL. I. 1 2 DEFINITION OF TERMS. particular species of contracts, that is, Bonds ; (a) and they adopt the term "Contract" when they wish to convey the more exten- sive idea, of the responsibility which results from the voluntary engagement of one individual to another, as distinguished from that class of liabilities which originate in torts, or wrongs unconnected with agreement. In the language of our law, therefore, the term Contract comprises, in its full and more liberal signification, every description of agreement, obligation, or legal tie, whereby one party binds himself, or becomes bound, expressly or impliedly, to another, to pay a sum of money, or to do or omit to do a certain act ; but in its more familiar sense, it is most frequently applied to agreements not under seal. (J) The term Agreement, on the con- trary, is rarely used amongst us, except in relation to contracts not under seal ; and this is evidently its proper use ; for, if considered in its strict and more critical meaning, it clearly imports a reciproc- ity of obligation ; (c) and in that point of view it does not include specialties, which in general require no mutuality. The word Promise, again, is used to denote the mere engagement of a person, without regard to the consideration for it, or the corresponding duty of the party to whom it is made. (d~) It is not, however, very material to consider what particular meaning is generally attached to these various terms. The essen- tial distinctions between the different kinds of contracts known in our law, constitute a much more important subject of inquiry. These distinctions areclearly as certained ; and, as they assign to each class of contracts attributes and consequences of the most mai'ked character, they demand our notice before we discuss in detail the subject-matter of this work. 1. Contracts, or obligations ex contractu, are of three descrip- Different kinds tions, and they may be classed, with reference to their of contracts, respective orders or degrees of superiority, as follows : 1. Contracts of Record ; 2. Specialties; 3. Simple Contracts. (a) Co. Litt. 172 a. See Bro. Abr. borough, Wain c. Warltcra, 5 East, 10, Roll. Abr. and Bac. Abr. tit. Obligation. 16; per Cur. Saunders v. Wakefield, i B. In Com. Dig. Bonds are treated of under & Aid. 595 ; and per Lawrence J. Eger- the head Fait. ton v. Matthews, 6 East, 307, 308. (b) And perhaps this is its more correct (rf) And the word promise is used in meaning. See per Periam J. in Siden- this sense in the late statutes, which ren- ham and Worlington's case, 2 Leon. 225 ; ik-r writing and signature necessary to give Johns. Dig. tit. Contracts. effect to engagements (without any new (c) Com. Dig. Agreement, (A. 1), cites consideration) to pay debts barred by the Plowd. 5 a, 6 a. See per Lord Ellen- statute of limitations, or by infancy. THE DIFFERENT KINDS OF CONTRACTS. 3 1st. Contracts or obligations of record consist of judgments, re- cognizances, and statutes staple ; and these are of superior force, because they have been promulgated by, or are founded contracts of upon the authority and have received the sanction of, a record - court of record, (e) Formerly they were held to bind the land ; (/) their existence is in general triable only by an inspection of the record itself; (#) no consideration is necessary to render them binding ; nor can they be impeached by the parties themselves, even for a defect apparent on the face of them, except by writ of error. (A) When, however, a judgment has been obtained by any irregularity in practice ; or when, although regular on the face of it, it has been fraudulently enforced, the court in which the action was brought has the power to set it aside ; and the proper course is, to apply to such court for that purpose, (i) But it cannot, whilst in force, be impugned by the parties by pleading. So, gen- erally speaking, a record precludes all inquiry into any illegality or fraud in the transaction which formed its foundation, (i 1 ) but still, third persons, who are affected by a fraudulent judgment, may im-" peach it in pleading, or treat it as void. (&) (e) Co. Litt. 260 a. (/) By virtue of several statutes, viz. 13 Edw. 1, c. 18 ; 27 Edw. 3, c. 9 ; 23 Hen. 8, u. 6 ; 8 Geo. 1, c. 25 ; and, more re- cently, by 1 & 2 Vict. c. 110, s. 13. See also Bac. Abr. Execution (A. B. pi. 3). But by the 27 & 28 Vict. c. 112, s. 1, no judgment, statute, or recognizance, to be entered upon after the passing of that act, shall affect any land, of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority, in pur- suance of such judgment, statute, or recog- nizance. (g) Co. Litt. 260 a. The existence of a foreign judgment is triable in this country by a jury; and, formerly, it could only be proved by an examined copy, the veracity of which was a question for the jury ; Collins v. Lord Mathew, 5 East, 473. But by the 14 & 15 Vict. c. 99, s. 7, a foreign judgment may now be proved by a copy thereof authenticated in the man- ner provided by that act, without any other evidence. According to Harris c. Saunders, 4 B. & C. 411, a judgment ob- tained in one of the superior courts in Ireland, is not a record in England ; over- ruling the opinion of the court to the contrary in Collins v. Lord Mathew, supra. (h) See Moses u. Macferlan, 2 Burr. 1005 ; per Lawrence J. in Howard v. Bibbans, 4 East, 310, 311. As to the ju- risdiction of the courts over judgments on fraudulent warrants of attorney, see Tidd, 9 th edit. 547 ; Harrod v. Benton, 8 B. & C. 217; Martin v. Martin, 3 B. & Ad. 934. (i) De Medina v. Grove, 10 Q. B. 152. (i 1 ) [As to- foreign judgments, see Houl- ditch v. Donegal!, 2 CI. & Ein. (Am. ed.) 470, note (2) ; Ricardo i. Garcias, 12 CI. & Fin. (Am. ed.) 368, and note (1) ; Done. Lipp.mann, 5 CI. & Fin. 1.] (k) 13 Eliz. u. 5 ; 27 Eliz. o. 4 ; Moore o. Bowmaker, 7 Taunt. 97 ; S. C. 2 Marsh. 392 ; [Downs o. Fuller, 2 Met. 135; Inman ... Mead, 97 Mass. 314; Pierce v. Fuller, 6 Mass. 244 ; Former's case, 3 Coke, 77 ; Bigelow Estoppel, 81.] 4 THE DIFFERENT KINDS OF CONTRACTS. 2d. Contracts or obligations under seal, or specialties, such as Contracts deeds and bonds, are instruments which are not merely under seal. - n wr iting, but which are sealed by the party bound thereby, and delivered by him to, or for the benefit of the person to whom the liability is thereby incurred. Neither a date, (J) nor, at common law, even the signature of the party, (m) is essential to. the validity of a deed. But there cannot be a deed without writ- T, r , . a= i"£» sealing, and delivery, (n) There may, however, What a suffi- &' . . '. cient delivery b e a sufficient delivery without words, (o) or by words only, without any act of delivery ; (p) the only ques- tion in such cases being, whether the sealing of the deed was ac- companied by any acts or words which were sufficient to show, that the party then intended to execute the deed as his deed, presently bindinc upon him. Qq~) Where, therefore, a party to an instrument sealed it, and declared in the presence of a witness that he de- livered it as his deed,. and yet kept it in his own possession ; but nothino- further transpired to show that he did not intend it to oper- ate immediately, this was held to be a good delivery, (r) And so it has been decided, that a delivery to a third person for the use of the covenantee is sufficient, if the grantor part with all control over the instrument ; although the person to whom the deed is so delivered be not the agent of the covenantee, (r) A party may likewise deliver a deed as an escrow that is, so Delivery as that it shall take effect or be his deed on certain condi- an LK-aia. tions. And such delivery need not be by express words ; (I) Bac. Abr. Obligation, (C.) ; Com. Ch. 256, it was said by Chancellor Kent Diu'. Fait, (B. •'!). that "a voluntary settlement fairly made (m) Bac. Abr. Obligation, (C.) ; 2 Bl. is always binding in equity upon the Com. 304; 17 Ws. 479. [As to attesting grantor, unless there be clear and decisive witnesses, see 2 S\igden V. & P. (8th Am. proof that he never parted, nor intended cd.) 495, note (i 1 ) ; Dole v. Thurlow, 12 to part, with the possession of the deed ; Met. 157 ; Timelier v. Phinney, 7 Gray, and even if he retains it, the weight of au- 149.] thority is decidedly in favor of its validity, (n) Co. Litt. 171 b. unless there be other circumstances besides (o) Co. Litt. 36 a. the mere fact of his retaining it, to show {p) lb. And sua Tupper v. Fo^tlkes, 9 that it was not intended to be absolute." C. B. N. S. 71)7, See Burm u. Winthrop, 1 John. Ch. 339; (q) Xenos u. Wickham (in Dom. Jcmesy. Obcnehain, 10 Grattan, 259 ; To- Proc.),L. Rep. 2 Ap. Ca. 296 ; reversing the ]arz>. Tolar, 1 JX'v. Eq. 456; Dawson v. judgment of the court of exchequer chamber Dawson, 1 Dcv. Eq. 93, 396; Way's in S. C. 13 (.'. B. N. S. 381. [Sec Howe Trusts, 2 Dc G., J. & S. 365; Kckewich v. u. Dewing, 2 Gray, 470.] Manning, 1 Dc G., M. & G. 176 ; Perry (r) Doe d. Garnons ... Knight, 5 B. & Trusts, § 104.] C. 671. [In Sonverbye i>. Arden, 1 John. THE DIFFERENT KINDS OF CONTRACTS. 5 for if from all the facts attending the transaction, it can be reasona- bly inferred that the writing was delivered, not to take effect as a deed till a certain condition was performed, it will operate as an escrow, (s) To constitute a delivery as an escrow, however, it must always be made to a third party, and not to the grantee or covenantee himself. (£) But a deed may be delivered as an es- croiv, to an attorney who is acting for all the parties to it. (w) 3d. In speaking of simple contracts we are to understand, not only such as are merely verbal, but also such as, al- simple con- thougli they have been reduced into writing, have not tracts - been sealed and delivered. " All contracts," it has been said, " are, by the laws of England, distinguished into agreements by specialty and agreements by parol ; nor is there any such third class as con- tracts in writing. If they be merely written and not specialties, they are parol ; " (x) and they have the same efficacy, properties, and effect. The difference, therefore, is not between verbal and written contracts ; but between parol or written contracts on the one hand, and specialties or contracts under seal on the other. It is true that, by the statute of frauds, (t/) certain agreements must be reduced into writing, and signed by the party to be charged thereon ; and other more recent acts of parliament have rendered writing and signature indispensable requisites to the validity of par- ticular promises. (2) But the ceremonies of writing and signature are in these cases prescribed, rather as necessary evidence of the contract or promise to which they refer, than as essential or con- stituent parts of the engagement itself, (a) In fact the agreement (s) Gudgen v. Besset, 6 E. & B. 986; Bac. Abr. (5th edit.) 212, marg. n. tit. Bowker v. Burdekin, 11 M. & W. 128, Agreements, (B. 2). [See Cook v. Brad- 147; [Wheelwright u. Wheelwright, 2 ley, 7 Conn. 57 ; People v. Shall, 9 Cowen, Mass. 447 ; Foster v. Mansfield, 3 Met. 778 ; Burnet v. Biscoe, 4 John. 235 ; 412 ; Hedge v. Drew, 12 Pick. 141 ; Mills Thatcher v. Dinsmore, 5 Mass. 301, 302 ; v. Gore, 20 Pick. 28 ; Shaw v. Hayward, Stackpole v. Arnold, 1 1 Mass. 30 ; Brown 7 Cush. 170.] v. Adams, 1 Stewart, 51 ; Beverlys v. (t) Co. Litt. 36 a. [See Howe v. Dew- Holmes, 4 Munf. 95 ; Ballard u. Walker, ing, 2 Gray, 476; Ward v. Lewis, 4 Pick. 3 John. Cas. 65 ; Perrine v. Cheeseman, 6 520.] Halst. 174; Beckham u . Brake, 9 M. & («) Millership v. Brookes, 5 II. & N. W. 92, per Lord Abinger.] 797. (y) 29 Car. 2, c. 3. (x) Per Skynner C. B. delivering (he (z) See post, sect. 3. opinion of the judges in Kann v. Hughes, (a) See Laythoarp v. Bryant, 3 Scott, in Dom. Proc. 7 T. R. 350, n. (a) ; S. C. 238, 250 ; Thornton v. Kempster, 5 Taunt. 7 Bro. P, C. 551 ; 3 Burr. 1672, u. (e) ; 1 788; Egcrton v. Matthews, 6 East, 307. THE DIFFERENT KINDS OF CONTRACTS. is complete without them, (V) and the mere circumstance of its being reduced into writing and signed, does not alter either its character or its effect; but there are still wanting, and must be supplied, in order to give it efficacy, all the usual requisites of a simple contract. Thus, a consideration is necessary to the validity of a simple contract, whether it be entered into verbally or in writing. properties of simple con- tracts, as dis- tinguished from con- tracts under seal. 4th. The solemnity and deliberation with which, on account of Nature and the ceremonies to be observed, a specialty is presumed to be entered into, attach to it an importance which does not belong to a simple contract. Thus, to mention the most striking distinction : in the case of a contract not under seal, a consideration is absolutely necessary to give it validity ; whereas a writing sealed and delivered is supposed, by law, to express fully and absolutely the intention of tho party by whom it is executed ; and he is, there- fore, bound by its execution, even in a court of equity, whether he received a consideration for the grant or encasement which it comprises or not. (b~) In like manner a deed is good, though it be It is on this ground that a party may me on a contract, although, for want of his signature, it he void as against himself un- der the statute of frauds; lb. ; [Old Col- ony Eailroad Corp. c. Evans, 6 Gray, 31-33 ; Douglass p. Spears, 2 Nott & MeC. 207; Pcnniman v. Hartshorn, 13 Mass. 91 ; 1 Sugdcu V. & P. (8th Am. ed.) 128, 129.] (a 1 ) [In the very nature of such trans- actions, the written memorandum must be posterior in point of time to the contract of which it is the record. Merrick J. in Williams v. Bacon, 2 Gray, 391 ; Marsh v. Hyde, 3 Gray, 331 ; Lerncd v. Wanne- macher, 9 Allen, 415, 416 ; Gale v. Nixon, 6 Cowen, 445. The contract may be made at one time and the note or memorandum of it at a subsequent time. Lerned u. Wannemacher, 9 Allen, 416 ; Ide v. Stanton, 15 Vt. 690.] (6) Bac. Beading on Uses, 79; per Ab- bott C. J. Irons u. Sinallpiece, 2 B. & Aid. 551, 554; Pratt v. Barber, 4 Russ. 507 ; 1 Steph. Com. 402 ; Plowd. 308 ; 2 Bl. Com. 446 ; Fallows v. Taylor, 7 T. R, 475, 477 ; Bhmington u, Wallis, 4 B. & Aid. 650, 653. And see per Best C. J. Morley i\ Booth by, 3 Bing. Ill, 112; 1 Fonb. Tr. Eq. 5th edit. 342, n. ; [Trafton v. Hawes, 102 Mass. 533 ; post, note (h) ; Lester t>. Zachury, 1 Const. Law, 381 ; Center a. Billinglmrst, 1 Cowen, 33 ; Sumner v. Williams, 8 Mass. 200; Page v. Trufant, 2 Mass. 159; Thatcher e. Dinsmore, 5 Mass. 302 ; Green v. Thomas, 2 Fairf. 318; Guy v. McLean, 1 Lev. 46 ; Belden v. Davics, % Hall, 433; Reynolds v. Rogers, 5 ( 'hio, 177 ; Leonard v. Bates, 1 Blackf. 173; Dale a. Roosevelt, 9 Cowen, 307 ; Case v. Boughton, 11 Wend. 106.] It should be observed, that although a consideration is not necessary, in gen- eral, (o give effect to a deed or covenant under seal, vet it has been questioned, whether the total failure of a consideration, obviously intended to exist, and upon which the instrument is meant to be founded, will not afford a defence. See per Le Blanc J. Bunn v. Guy, 4 East, 190, 200; and Rose v. Poulton, 2 B. & Ad. 822. And it seems that equity will not in general decree specific performance of a deed which is entirely with'out con- THE DIFFERENT KINDS OF CONTRACTS. given voluntarily, i, e. without consideration, provided it be not ob- tained by fraud, and do not impugn any of the rules of law in- tended for the protection of creditors, (c) Again : the technical doctrine of estoppel applies, in general, to deeds and records only ; (c?) not to simple contracts, (e) But it is not to be supposed that a statement or admis- Estoppel. sideration. See 1 Fonb. 151, 11.; Wych- erley v. Wycherlcy, 2 Eden, 177; Groves c/. Groves, 3 Y. & J. 163. So a, court of equity will set aside a deed where the con- sideration is immoral. Williams v. Bull- more, 33 L. J. C. 461. In the case of a deed which operates in restraint of trade, there must be some consideration. Ho- mer v, Ashford, 3 Bing. 322, 327. As between lessor and lessee, the execution of the lease by the former is the considera- tion for the covenants of the latter. Swat- man v. Ambler, 8 Exch. 72. But, in gen- eral, a covenantee may sue on a deed, al- though he has not executed it. Morgan v. Pike, 14 C. B. 473. In the case of a con- veyance by bargain and sale there must be some pecuniary consideration to raise a use. See 2 Saund. on Uses, 3d edit. 45 ; Shep. Touch. 221; 2 Bl. Com. 338; 4 Cruise Dig. 2d edit. 27, 127, 136, 145. In the case of -a covenant to stand seised to uses there must be a good consideration. No consideration is necessary where the conveyance is by release. See lb. (c) See 13 Eliz. c. 5 ; 32 & 33 Vict. c. 71, s. 91. The general rule is, that a vol- untary conveyance by deed is good both at law and in equity, against the party him- self. Fonb. Tr. Eq. book i. c. 5, s. 2 ; [2 Sugden V. & P. (8th Am. ed.) 713, note (I 1 ); Harvey u. Varney, 98 Mass. 118; Dyer v. Homer, 22 Pick. 58 ; Randall v. Phillips, 3 Mason, 378 ; Horner v. Zim- merman, 45 111. 14; Stevens v. Harrow, 26 Iowa, 458 ; Lawton v. Gordon, 34 Cal. 36; White v. Brocaw, 14 Ohio (N. S.), 339; Bobinson v. Stewart, 10 N. Y. 189 ; Moore v. Meek, 20 Ind. 484 ; Lokerson v. Stillwell, 2 Beasley (N. J.), 357 ; Hill b. Pine Biver Bank, 45 Maine, 300 ; Benton v. Jones, 8 Conn. 186; Chapin v. Pease, 10 Conn. 69; Lassiter v. Cole, 8 Humph. 621 ; The Corporation of Newcastle v. Attorney General, 12 CI. & Fin. 402.] A voluntary settlement of lands, made in consideration of natural love and affection, is void as against a subsequent purchaser for valuable consideration, though with notice of the prior settlement before all the purchase money was paid, or the deeds executed, and though the settler had other property at the time of the prior settle- ment and did not appear to he then in- debted, and there was no fraud in fact in the transaction ; for the law, which is in all cases the judge of fraud and covin arising out of facts and intents, infers fraud in this case upon construction of the statute 27 Eliz. c. 4. Doe d. Otlcy v. Manning, 9 East, 59. [But see Beal o. Warren, 2 Gray, 453, 456, and other cases cited 2 Sugden V. & P. (8th Am. ed.) 714, note (()•] (d) Estoppel is where a man is con- cluded by his own act or acceptance to say the truth ; and it may he by matter of record, in writing, or in pais. Co. Litt. 352 a; Com. Dig. Estoppel, (A.) ; [Bige- low Estoppel, xl., xli.] A recital in a deed, of a particular fact, which all the parties to the deed have agreed to admit as true, is an estoppel upon all. Stroug- hill v. Buck, 14 Q. B. 731, 787 ; Carpen- ter v. Bullcr, 8 M. & W. 209, 212 ; Bow- man v. Taylor, 2 A. & E. 278 ; Shelly v. (e) E. g. a bill of lading is not conclu- v. Todd, 1 Moo. & Rob. 106 ; [Berkley v. give evidence of the shipment, as between Watling, 7 Ad. & El. 29;] unless where the shipper of goods and the ship-owner, the bill of lading is signed by the ship- See Grant v. Norway, 10 C. B. 665 ; Bates owner ; 18 & 19 Vict. c. Ill, s. 2. THE DIFFERENT KINDS OF CONTRACTS. sion contained in a simple contract has not any effect as against the party making it ; the rule being, that such statement or admission is strong presumptive evidence against the party, although it be not conclusive, (e 1 ) He is still at liberty to prove that such admission was mistaken or untrue ; and he is not estopped or concluded by it, unless another person has been induced thereby to alter his con- dition ; but if this be the case, then he is estopped with respect to that person and those claiming under him, and that transaction. (/) On the other hand, as between the parties to the instrument, and in an action upon it — or where an action is brought to enforce rights arising out of the deed, and not collateral to it (45, note (6), and cases cited ; Drury ('■ 'Fremont Imp. Co. 13 Alkn, 171 ; Wilkinson v. Scott, 17 Mass. 249.] (/*) Per Bayley J. Heanc r, Rogers, 9 B. & C. 577, 584; and see I'ickanlf. Sears, 6 A. & E. 469; Gregg v. Wells, 10 A. & E. 90 ; Carpenter o. Buller, 8 M. & W. 209. See also Cornish v. Abington, 4 H. & N. 549 ; Freeman v. Cooke, 2 Exch. 654 ; Webb v. Heme Bay Commissioners, L. Bep. 5 Q. B. 642. A similar rule pre- vails in equity ; see per Lord Campbell C. Piggott u. Stratton, 29 L. J. C. 1, 9 ; [S. C. 1 De G., F. & J. 33; 6 Jur. N. S. 129;] per Stuart, V. C. Hawker v. Halle- well, 25 L. J. C. 558, 560 ; [2 Sugden V. & P. (8th Am. cd.) 743, note (u), 744; Hutton v. Rossiter, 7 De G., M. & G. (Am. ed.) 9, note (1 ), and cases cited ; Ramsden u. Dyson, L. R. 1 H. L. 129 ; Erie Co. Savings Bank v. Roop, 48 N. Y. 292, 298 ; Drew c. Kimball, 43 N. H. 282; Fall River National Bank o. Buffington, 97 Mass. 498; Andrews u. Lyons, 11 Allen, 349; Langdon v. Doud, 10 Allen, 437; Phimer v. Lord, 9 Allen, 455 ; Audendried v. Betteley, 5 Allen, 384 ; Slim v. Crou- cher, 1 De G., F. & J. 518 ; Howard v. Hud- son, 2 Ell. & Bl. 1 ; Bigelow Estoppel, 473 et secj. 484.] (rj) Wiles v. Woodward, 5 Exch. 557, 563. (h) Carpenter v. Builer, 8 M. & W. 209. The same rule prevails in equity. Carter v. Carter, 27 L. J. C. 74 ; [3 K. & J. 634. On an issue of title between the grantee and the grantor or his heirs, not involving fraud in procuring the deed, the consider- ation of the deed is not open to inquiry. Trafton v. Hawes, 102 Mass. 533 ; Far- THE DIFFERENT KINDS OF CONTRACTS. there existed some incompetency in the contracting parties, or ille- gality in the consideration or object upon or for which the deed was made. These may be shown in order to defeat the deed, although the instrument afford on the face of it no reason 'to suspect them ; or even although it state facts which, if true, would negative their existence, (i) And as a deed is a security of a higher nature, so it operates as a merger or extinguishment of any simple contract in respect whereof it was entered into ; (/) upon the same principle that a judgment upon a specialty merges it. (7c) And so in regard to the remedies afforded by law upon the non- performance of a specialty obligation, we may trace 'the favor shown to deeds. deTd^dfs- For example, in the case of a simple contract, the f' r om IhoM only remedy at law upon the death of the promiser is on sim P Ie , , l . r contracts. against his personal representatives, that is, his execu- tors or administrators ; (7) and for the payment of simple contract debts, his real estate is not available, except in a court of equity. Nor is his real estate liable, even in equity, to the payment of his simple contract debts, until after all the creditors by specialty, in which the heirs are bound, have been paid in full. (???) But a specialty affects the realty of the covenantor or obligor rington v. Barr, 36 N. H. 86 ; Graves v. Graves, 29 N. H. 129; Hogan v. Jaques, 4 C. E. Green (N. J.), 123; Philbrook v. Delano, 29 Maine, 410; 2 Sugden V. & P. (8th Am. ed.) 649, note (6), 702, note (g 1 ). As to the effect of an acknowledg- ment in a deed of the payment of the con- sideration, in an action to recover it, see ante, 8, note (e 1 ).] (j) Collins v. Blantern, 2 Wils. 341 ; Hayne v. Mai thy, 3 T. R. 438 ; Paxton v. Pophatn, 9 East, 408 ; Hills v. The Man- chester and Salford Waterworks Com- pany, 2 B. & Ad. 544 ; Doe d. Preece v. Howells, 2 B. & Ad. 744. (j) Bac. Ahr. Debt, (G.) ; jer Lord Ellenborough, Drake v. Mitchell, 3 East, 251 259. [The articles of agreement for the sale of land are merged in the deed of conveyance made, delivered and accepted in pursuance thereof. Jones v. Wood, 16 Penn. St. 25; Bull c. Willard, 9 Barb. 641; Witbeck a. Waine, 16 N. Y. 532, 535 ; Williams v. Hathaway, 19 Pick. 387 ; Carter v. Beck, 40 Ala. 599 ; Thompson v. Christian, 27 Ala. 399 ; Colvin v. Schell, 1 Grant Cas. 226 ; 1 Sugden V. & P. (8th Am. ed.) 326, note (y) ; 2 lb. 559, note (g). But where one contracts for a specified con- sideration to convey land at a future time, and to do at a still later period other acts for the benefit of the other contracting party, or where the contract is for a series of acts to be performed at successive peri- ods, the prior contract is superseded only as to such of its provisions as are covered by the deed of conveyance made pursuant to its terms. The agreement remains in full force as to all its other provisions. Witbeck i>. Waine, 16 N. Y. 535, 536 ; Bogart v. Burkhalter, 1 Denio, 125; Cox v. Henry, 32 Penn. St. 18; Colvin v. Schell, 1 Grant Cas. 226 ; Selden v. Wil- liams, 9 Watts, 9 ; Long v. Hartwell, 5 Vroom (N. J.), 116.] (k) See lb. ; 3 Chit. Com. L. 11. (/) 9 Co. 89 a; 3 Bl. Com. 302. ()») 3&4 Will. 4, c. 104. 10 THE DIFFERENT KINDS OF CONTRACTS. even at law ; and upon the death of a party who has bound him- self and his heirs, eo nomine, in a deed, the covenantee or obligee may sue the heir or executor at his election, and may have execu- tion of the land descended to the heir. Moreover, if the estate have been devised without its being made subject to the payment of debts, the devisee is liable to be charged in respect of such es- tate, in the same manner as, and jointly with, the heir ; and a cred- itor bringing an action at law for,fhat purpose, is entitled either to make the devisee a joint defendant with the heir, or to sue the de- visee alone, where there is no heir liable, (w) So, by the common law, a specialty debt was entitled to priority over a simple contract debt, in the payment of the debts of a tes- tator or intestate, (o) And even as regards the mode of pleading, there are distinctions between actions upon deeds and actions upon agreements not under seal. Tims the common counts, as they are termed, cannot be used in an action on a deed, but it is necessary to declare specially upon the deed as such. It was also necessary, until recently, (j>) in de- claring on a deed, to make a profert in curiam thereof, — that is, to produce it in court simultaneously with the pleading in which it was alleged, — or to state upon the record an excuse for the omis- sion to make such profert. (g 1 ) And when profert was necessary, the defendant was entitled to oyer of the deed, that is, to hear it read, (r) But in declaring on a simple contract, no profert was ever requisite ; nor has oyer ever been demandable of private writ- ings not under seal, although, in particular instances, the court will, in the exercise of its discretion, compel either party to permit an inspection of a written agreement, and will enforce the delivery of a copy to the opponent, (s) 2. Having thus stated, generally, the nature and properties of Definition the different kinds of contracts, let us now consider, sitcsof'a»ira- somewhat more at large, what are the requisites of a pie contract, contract not under seal. (n) See 11 Geo. 4 & 1 Will. 4, e. 47; standing in equal degree. [Such is the Bac. Abr. Heir, (F.) ; 2 Wras. Saund. 137 law, generally, in the United States.] a; Co. Litt. 209 a. (p) See 15 & 16 Vict. o. 76, s. 55, by (o) 2 Bl. Com. 4G5. By the 32 & 33 which profert and oyer are abolished. Vict. c. 46, s. 1, in the administration of ( » either party the negotiation ; so that a partv is not only not bound to retract. no , , " , , i n by a mere otter not accepted, but may retract such, ot- fer before it is accepted, by a communication to the person to whom the offer was made. (&) 11 Beav. 1 ; Story Sales (4th ed.) § 136, (8th Am. ed.) 132. Where A. proposed and cases in note (1 ).] to exchange horses with B. and to give B. (g) Jordan v. Norton, 4 M. & "VV. 155. a specified sum as difference, and B. re- (h) 4 Bing. 653. served the privilege of deciding upon (i) See, also, Holland v. Eyre, 1 S. & S. the proposition by a certain day, hut be- 194 ; 1 Sugd. V. & P. 165. fore the day came A. gave B. notice that (j) "Wontner a. Shairp, 4 C. B. 404, he would not confirm the offered contract, 441 ; Duke v. Andrews, 2 Exch. 290. See, it was held that B. could sustain no action also, Chaplin v. Clarke, 4 Exch. 403. for the difference proposed to be paid. Esk- (k) Routledgc v. Grant, 4 Bing. 653, ridge o. Glover, 5 Stew. & Port. 264; 661; [Honeyman a. Mnrryatt, 21 Beav. Faulkner v. Heberd, 26 Vt. 452 ; Beckwith 14 ; 6 H. L. Cas. 112 ; Chinnock v. Mar- v. Cheever, 21 N. H.41. See Craig v. Har- ehioness of Ely, 6 N. R. 1; Hyde v. per, 3 Cush. 158 ; Boslon & Maine Rail- Wrench, 3 Beav. 334 ; 1 Sugden V. & P. road v. Bartlett, 3 Cush. 224 ; Palls v. THE ASSENT OF TPIE PARTIES. 17 Bat this latter rule must be received with the following qualifica- tion, viz. : that if an offer be made by letter, to a party „ . J * " Presumption at a distance, it is presumed to be constantly repeated astocontinu- until the period for acceptance arrives, up to which pe- tion to con- riod it is to be inferred that there is a continuation of rac ' the intention to contract; and that the acceptance of the exact terms proposed, within the precise period limited, shall, when re- ceived by him who made the offer, form a complete contract as from the date of such acceptance, provided the party making the offer had not, in the interim, withdrawn it. £If the delivery of the let- ter of offer is delayed by the fault of the sender, the offer is ex- tended until its arrival. So, on the other hand, the acceptance is complete and the contract valid upon the due posting of the letter of acceptance notwithstanding delay, or even entire failure of ar- riving at its destination, provided such delay or failure has not been occasioned by a wrong address of the letter, or other default in the party sending it. J Thus, in Adams v. Lindsell, (V) the defendant, by letter, offered to sell certain goods to the plaintiff, receiving an anstver by return of post. The letter to the plaintiff being misdirected, the answer sig- nifying the acceptance of the offer, arrived two days later than it ought to have done. This was caused by the defendant's mistake. The defendant had, on the preceding day, sold the goods to a third, person ; and the court held that there was a binding contract with the plaintiff, and that an action lay for non-delivery of the goods. And the same rule was recognized and acted upon in the House of Lords, in the following case : A. B., of Glasgow, offered, by let- ter, to sell to C. D., of Liverpool, a quantity of iron on certain terms. By the usage of the trade, C. D. was bound to accept or Gaither, 9 Porter, 605. To render a pro- 264. If one person promises another to posed contract binding, it must in some pay him a sum of money if he will do way be acceded to by both parties, a particular act, and the latter does the Whether a mere compliance with the pro- act before the" revocation of the promise, posal by one who had not previously the promise becomes binding, although agreed to it, will render the other liable the promisee does not, at the time, en- upon it, is a question of intention which gage to do the act; the doing of the act depends upon the terms of the proposal being a good consideration for the pre- and the subject matter of it. See John- vious promise, and the promise amount- ston u. Nieholls, 1 C. B. 250 ; Boyd v. ing to a request to do the act. Barnes v. Moyle, 2 C. B. 644 ; Train v. Gold, 5 Perine, 9 Barb. 202.] Pick. 380 ; Johnston v. Fessler, 7 Watts, (I) 1 B. & Aid. 681. 48 ; Eskridge o. Glover, 5 Stew. & Port. vol. i. 2 18 REQUISITES OF A SIMPLE CONTRACT: refuse the offer by return of post ; and he did, in fact, write and post a letter accepting it in due time. By an accident connected with the transmission of the letter by the post-office, however, this letter did not reach A. B. until one post later than it ought; and he therefore treated C. D.'s letter as no acceptance ; but their lordships held, that C. D.'s acceptance of the offer was complete, and that A. B. was bound to fulfil the contract, (m) And Pothier («) states the rule on this subject thus: "In the (m) Dunlop v. Higgins, 1 H. L. Cas. in the post-office. Adams p. Lindsell, 1 381 ; Duncan v. Topham, 8 C. B. 225. [In B. & Aid. 681 ; Duncan p. Topham, 8 C. re Imperial Land Co. of Marseilles, Har- B. 225 ; Vasser p. Camp, 14 Barb. (N. Y.) ris's case, L. R. 7 Ch. Ap. 587; Potter 341 ; S. C. 1 Kernan, 441. The transmis- v. Sanders, 6 Hare, 1 ; Stocken v. Collin, sion of a letter accepting an offer is suffi- 7 M. & W. 515; Hebb's case, L. K. 4 cient to make a contract, because it is an overt act manifesting the intention of the acceptor, and thus consummating the ag- gregate mentium which constitutes the con- tract. Trevor v. Wood, 36 N. Y. 307. In a case before & court of sessions in Scot- land, a letter accepting a proposed contract Eq. 9 ; British & Amer. Telegraph Co. p. Colson, L. B. 6 Exch. 108 ; In re Im- perial Land Co. of Marseilles, Townsend's case, L. E. 13 Eq. 148. The English doctrine stated in the text is sustained by numerous decisions in the United States. Tayloe p. Merchants' Fire Ins. Co. 9 How. was posted, and a subsequent letter recall- (U. S.) 390; Mactier p. Frith, 6 Wend. 103 ; Brisban v. Boyd, 4 Paige 17 ; Vas- sar p. Camp, 14 Barb. 341 ; S. C. 1 Ker- nan, 441 ; Clark t. Dales, 20 Barb. 42 ; Myers r. Smith, 48 Barb. 614; Trevor p. Wood, 36 X. Y. 307 ; Abbott v. Shepard, 48 N. II. 14; Hutcheson v. Blakcman, 3 Met. (Ky.) 80 ; Chiles v. Nelson, 7 Dana, 282 ; The Palo Alto, Davies, 343 ; Hamil- ton v. Lycoming Ins. Co. 5 Barr, 339; Levy v. Culien, 4 Geo. 14 ; Falls v. Gaither, 9 Porter, 013 ; Avenll v. Hedge, 12 Conn. 436 ; Wheat p. Cross, 31 Md. 99; Potts v. ing the acceptance was also posted and arrived at the same time with the previous one; the judges of the court of sessions, reversing the judgment of the court below, but not unanimously, held that there was no contract. Dunmore v. Alexander, 9 Shaw & Dunl. 1 90. See In re Constantino- ple & Alexandria Hotels Co. Eeidpath's case, L. R. 11 Eq. 86 ; Finacune's case, 17 W. E. 813. A contract may be made and proved in court by telegraphic dispatches. Taylor v. Steamboat Eobert Campbell, 20 Missou. 254 ; Leonard v. New York &c. Whitehead, 5 C. E. Green (N. J.), 55. See Tel. Co. 41 N. Y. 544 ; Beach c. Earitan 2 Kent, 477, and note; Story Sales (4th ed.) &c. E. E. Co. 37 N. Y. 457 ; Durkce p. Ver- §§ 129-133; Moore u. Picrson, 6 Clarke mont Central Eailroad, 29 Vt. 127 ; Henkel (Iowa), 279 ; M'Culloch p. Eagle Ins. Co. c Papc, L. E. 6 Exch. 7. The same rules 1 Pick. 278; Thayer v. Middlesex Mut. apply in determining whether a contract Fire Ins. Co. 10 Pick. 332. The answer of has been made by telegraphic dispatches acceptance must be placed in the post-office as in cases of communications by letter, within the time limited, if any, or other- Trevor p. Wood, 36 N. Y. 307. The sig- wise with reasonable dispatch, and before nature to the instructions for a telegram any intimation is received that the offer is which in terms accepted an offer, has been withdrawn. Potts p. Whitehead, 5 C. E. held sufficient signature of the agreement Green (X. J.), 55 ; Abbott v. Shepard, 48 within the statute of frauds. Godwin p. N. H. 14; 2 Kent, 477. If the letter of Francis, L. E. 5 C. P. 295.] acceptance is duly posted, the writer is (n) Traite' du Contrat de Vente, No. 32; not responsible for any accident or delay and in Kennedy v. Lee, 3 Mer. 441, Loid THE ASSENT OF THE PARTIES. 19 contract of %ale, as in other contracts, there may be consent of par- ties, not only between those who are present, but those who are absent, by letter or by an agent, per epistolam, aut per nuntium. In order to constitute consent in this case, it is necessary that the in- tention of the party who writes to another to propose the bargain, should continue until the time at which the letter reaches the other party, and at which the latter declares that he accepts the bargain. This intention is presumed to continue as long as nothing appears to the contrary ; but if I write to a merchant at Leghorn, a letter in which I propose to purchase of him a certain quantity of merchan- dise, at a certain price ; and, before my letter can have reached him, I write a second letter, by which I intimate that I no longer desire to make this purchase ; or if before that time I die, or lose the use of my reason, although this merchant of Leghorn, at the receipt of my letter, in ignorance of the change of my intention, or my death, or my insanity, answers that he accepts the proposed bargain, yet no contract of sale arises between us ; for, my inten- tion not having continued until the time at which my letter was re- ceived, and my proposal accepted, the consent or concurrence of our wills necessary to form a contract of sale has not occurred." But where a treaty is commenced by letter, and an offer made by letter is verbally rejected, the party who made the Effect of ver- offer is relieved from his liability, unless he consent to f ffermaae renew the treaty. (o~) by letter- And if there be an actual sale by the defendant to the plaintiff, subject only to the plaintiff's approval of the quality on s a i eonap . a named day, and not a mere offer to sell ; and the P roval - plaintiff do not exercise his option of renouncing on the specified day, the defendant is bound, and cannot afterwards retract ; for neither party had an option after the day named, and the plaintiff must be presumed to have approved of the goods, and assented to the bargain taking effect by not having renounced it. (p) Eldon said : " I hare always understood with the offer, and both together as con- the law of the court to be, in reference to stituting such an agreement as the court this kind of contract, that if a person com- will execute." municates his acceptance of an offer within (o) Sheffield Canal Company v. Shef- a reasonable time after the offer is made, field & Eotherham Railway Company, 3 and if, within a reasonable time of the ac- Rail. Cas. 121 ; [Honeyman v. Marryatt, ceptance being communicated, no variation 1 Jur. N. S. 857; S. C. 6 H. L. Cas. has been made by either party in the terms 112.] of the offer so made and accepted, the ac- (p) Humphreys v. Carvalho, 16 East, ceptance must be taken as simultaneous 45. [If two persons exchange horses with 20 REQUISITES OP A SIMPLE CONTRACT : From what is stated above, it appears that the asseilt or consent Rule as to °f the parties to the terms of the agreement must be mutuality. mutual, e-^en although the promise of one of them be in itself positive and unambiguous, (j? 1 ) But, although this be the case, still it does not follow that an agreement will, in every case, be bad for want of mutuality, merely because each party cannot, from the time of the making thereof, have an action upon it, in re- gard to matters to be performed by the other contracting party. There are, certainly, cases in which, if it appear that the one party never was bound on his part to do the act which forms the consid- eration for the promise of the other, the agreement will be void for want of mutuality ; but there are others in which this rule does not hold, (p 2 ) Thus, if A. agree that, in consideration that B., the obligee of a bond on which C. is liable, will forbear to sue C. for a certain time, he, A., will pay to B. the sum due on the bond ; it is clear that B. is not bound by his promise to forbear, although it is equally clear that, unless he do forbear, he cannot sue A. on his agreement. (jq) And so, where a person says, " In case you choose to employ this man as your agent for a week, I will be re- sponsible for all such sums as he shall receive during that time, and neglect to pay over to you ; " the party indemnified is not, there- the privilege to one of them to return turn it within the time agreed, nor after- within a specified time the horse taken by wards, it was held that these facts did not him in exchange, and he fails to return show a sale of the horse. Hunt u. Wy- the horse so taken, within the time, the man, 100 Mass. 198.] contract becomes absolute. Johnson v. (p 1 ) [See Livingston v. Rogers, 1 Caines, McLane, 7 Blackf. 501 ; Moore v. Piercy, 483; Tucker v . Woods, 12 John. 190; 1 Jones (Law), N. Car. 131 ; see Ellis v. Keep v. Goodrich, 12 John. 397 ; Dresel v. Mortimer, 1 Bos. & Pul. N. E. 267. But Jordan, 104 Mass. 412 ; Jenness v. Mount if no time is specified, the return must be Hope Iron Co. 53 Maine, 20, 23.] made within a reasonable time, or the con- (p 2 ) [L'Amoreux v. Gould, 3 Seldcn, tract becomes absolute. Washington v. 349; 1 Sugden V. & P. (8th Am. cd.) Jones, 7 Humph. 468; Moss v. Sweet, 16 217. In En-ins e. Gordon, 49 N. H. 444, Q. B.493; Humfrey v. Dale, 7 El. & Bl. 457, Foster J. said: 'We understand 266. See Witherby v. Sleeper, 101 Mass. that the obligation is mutual where both 138. But in a case where a horse was de- parties are required by the agreement to do livered to the defendant upon a price something ; the agreement of the one be- named, and an agreement that if the plain- ing the consideration for that of the other ; tiff " would let him take the horse and try that it makes no difference in this respect it, if he did not like it he would return it whether the obligation of the one is sc- in as good condition as he got it, the night cured by bond and that of the other not of the day he took it," and the horse was thus secured."] immediately, without fault of the defend- ( So a contract may not be binding on one party, because he has not signed it according to the statute of frauds ; and yet he may sue the other party who has signed it ; (e) for, in this case, the objection merely goes to the evidence of the agreement ; and it was the defendant's fault that he did not secure the plaintiff's signature, (e 1 ) So there is an exception to the above rule, in all cases where a person acting as agent for another professes, though o agents, without authority, to contract for him. In such cases, out'autuor- the maxim omnis ratihabitio retrotrahihir et mandato ,ty - priori cequiparatur applies ; the subsequent assent or recognition by the party for whom the agent professed to act being equivalent to a previous authority. (/) Thus, where A. and B. were jointly in- terested in a quantity of oil, and A. entered into a contract for the sale of it, without the authority or knowledge of B., who, upon re- ceiving information of the circumstance, refused to be bound by it, but afterwards assented, and samples of the oil were delivered to the vendees ; it was held, that B.'s subsequent ratification of the (b) Fishmongers' Company v. Robert- 128, 129, and cases in notes, 217, note (x 1 ) ; son, 5 M. & G. 131, 192; Australian Royal Duvall v. Myers, 2 Md. Ch. 40 1* Dresel v. Mail Steam Navigation Company v. Mar- Jordan, 104 Mass. 407, 412, 414; Ives v. zetti, 11 Exch. 228. Hazard, 4 R. I. 14 ; Old Colony Railroad (c) Holt v. Ward, Clarencieux, 2 Str. Co. o. Evans, 6 Gray, 25. 973, (/) See per Cur. Bird v. Brown, 4 (rf) Bloxsome v. Williams, 3 B. & C. Exch. 786, 798 ; per Bayley and Holroyd 232 . JJ. Saunderson 0. Griffith, 5 B. & C. 909, (e) Laythoarp v. Bryant, 1 Scott, 327. 913, 915. [Story Agency, §§ 242, 244, (c 1 ) [1 Sugden V. & P. (8th Am.ed.) 248.] 24 REQUISITES OF A SIMPLE CONTRACT : contract rendered it binding upon him. (#) But in such cases it must appear, that the agent professed to act for the party who sues on the contract. And therefore where, in an action by A. and his wife, and B., the declaration stated that the plaintiffs had agreed to let to the defendant certain land, and in consideration of his ten- ancy to them, he promised, &c. ; but the agreement proved, pur- ported to be made by an agent, not for A., but for A.'s wife and B. only ; and the fact of A. having subsequently received rent from the tenant was relied upon as giving him a right to sue thereon ; it was held, that proof of a subsequent ratification by A. of an agree- ment to which he was originally no party, was not sufficient for this purpose ; and the court said, that there might have been some weight in the argument, if the agent, at the time when he made the agreement, had professed to act for A. Qi) 2d. Our second proposition was that, to constitute an agree- Of the con- ment not under seal, there must be a good and valid sueration. consideration ; and as to this the rule is, that a sufficient General rule . -, . r i • ■ as to the ne- consideration or recompense ior making, or motive or m- essi j or. c j U cement to make, the promise upon which a party is charged, is of the very essence of a contract not under seal, both at law and in equity ; and that such consideration must exist, al- though the contract be reduced into writing ; otherwise the promise is void, and no action can be maintained thereon, (i) Ex nudo •pacta non oritur actio. The earliest records of our law show that (g) Soames v. Spencer, 1 D. 4 R. 32. Conn. 170 ; Bean v. Burbank, 16 Maine, (h) Per Holroyd J. Saunderson v. 458. If no consideration is expressed in a Griffith, 5 B. & C. 909, 915. written agreement, or it purports to have (i) Noy Max. 21 ; Sharington c. Strot- been made on divers good considerations, ton, Plowd. c. 302, 305, 309 ; Dyer 90 b. ; the true consideration may be proved ali- Dr. & Stud. 2, c 24 ; Eann v. Hughes (in unde. Arms v. Ashley, 4 Pick. 71 ; Ting- error), 7 T. It. 350, ii. (a) ; S. C. 7 Bro. ley v. Cutler, 7 Conn. 291 ; Cummings v- P. C. 550 ; 1 Fonbl. Tr. Eq. 5th edit. Dennett, 26 Maine, 397 ; White v. Weeks, 3.35, n. (a); Barrel! i\ Trussell, 4 Taunt. 1 Penn. 486; Davenport v. Mason, 15 117. "A bargain without a consideration Mass. 85; Towncnd o. Toker, L. B. 1 is a contradiction in terms, and cannot Ch. Ap. 459 ; Hartley v. McAnulty, 4 exist ; " per Lord Loughborough, Middle- Ycates, 25 ; Stevens v. Griffith, 3 Vt. 44S ; ton v. Lord Kenyon, 2 Ves. jun. 188. [See Jones v. Sasser, 1 Dev. & Bat. 466; Merle Cook v. Bradley, 7 Conn. 5i ; People v. „. Matthews, 26 Cal. 455; Cunningham v- Shall, 9 Cowen, 77S ; Burnet v. Bisco, 4 Dwyer, 23 Md. 219. But it has been held John. 235 ; Thatcher v. Dinsmore, 5 Mass. that when a consideration is set forth in 301 ; Brown v. Adams, 1 Stewart, 51 ; the writing, evidence is not admissible to Beverleys v. Holmes, 4 Mimf. 95 ; Russell show that a greater or a different consid- v. Beck, 11 Vt. 166 ; Dodge v. Burdell, 13 eration was intended. Sclicrmerhorn v. THE CONSIDERATION. 25 this maxim was always recognized in this country. (A) But it is a principle not peculiar to English law. It was recognized in the civil law ; and^ indeed, we have borrowed from the Roman jurists tlie term nudum pactum, as applied to promises without considera- tion. (T) And it is also a maxim in the French law, that a consid- eration or cause is essential to the validity of a promise, (ni) The above rule, as applied to simple contracts, seems to be al- most without exception in the English law. It has, in- _ , r a ' Eule as to deed, been suggested, though it was never formally bills of ex ~ j • i i t • , p . i • change. decided, that in the case or written agreements, and m commercial cases amongst merchants, the want of consideration is not an objection ; (n) but this notion has been entirely exploded. Even in the case of bills of exchange and promissory notes, it is not true, as might be supposed from what is said in Blackstone's Com- mentaries, (o) that a consideration is not necessary to give them effect. The rule is, that a consideration is essential even in the case of such instruments; but they differ from other simple "con- tracts in this — that whereas, in general, it must appear affirma- tively that there was a consideration for such contracts, the courts hold, that in the case of bills and notes, unless the transaction be affected by fraud or some suspicion of fraud, a consideration is to be Vanderheyden, 1 John. 139; Maigley v. 4,4; 3 Hen. 6, 36; Bro. Action sur le Hauer, 7 John. 341 ; Hawes v. Barker, 3 Case, 40. John. 506; Emery v. Chase, 5 Greenl. (I) Bl. Com. 445. "Nudum pactum est 232 ; Winchell v.' Latham, 6 Cowen, 690 ; ubi nulla subest causa prseter conven- unless the words "for other considera- tionem." It appears, however, that by tions/' or equivalent words are used, the civil law a verbal promise or agree- Maigleyu. Hauer, 7 John. 341; Benedict ment, although without consideration, was v. Lynch, 1 John. Ch. 370; Pomeroy v. bindingif made with certain prescribed so- Bailey, 43 N. H. 118. This, however, is lemnities. Obligations thus created were not the settled rule upon the subject. The called stipulations. Seel Fonb. Tr. Eq. cases have been materially conflicting. 3d ed. 336. As to what was nudum pactum McMahan v. Stewart, 23 Ind. 590 ; Buck- by the civil law, see lb. 340. ley's App. 48 Penn. St. 491; Hendricks (m) " L'obligation sans cause, ou sur v. Crowley, 31 Cal. 471. It has lately une fausse cause, ou sur cause illicite, ne been decided in Massachusetts that other peut avoir aucun effet ; " Code Civil, book considerations for a contract may be iii. tit. 3, s. 4 ; see 1 Pothier Tr. on Obi. shown by parol, although some are named p. 1, c. 1, s. 1, art. 3, s. 4. By the law of in the written instrument ; the language Scotland, gratuitous contracts or obliga- of the contract furnishing a clear implica- tions are effectual against the obligor and tion of the consideration offered to be his heirs, but not in all cases as against proved. Goward v. Waters, 98 Mass. creditors. Bell Prin. § 63. 596, 599, and cases cited; see Townend (n) See per Lord Mansfield, Pillans a. v. Toker, L. R. 1 Ch. Ap. 459.] Mierop, 3 Burr. 1663, 1669. (k) See 11 Hen. 4, 33, 23 a; 17 Edw. (o) 2 Bl. Com. 446. 26 REQUISITES OF A SIMPLE CONTRACT presumed to exist, until the contrary be shown, (p) But still the defendant may, in an action on a bill or note, give proof of want of consideration ; and when the action is between the immediate par- ties thereto, — as between the drawer and acceptor of a bill, or the payee and maker of a note, or between the indorser and his in- dorsee of either of those instruments — if it be proved that the plaintiff gave and that the defendant received no value, the action will fail. And so, although where the plaintiff is a distant indorsee of a bill or note, and took it for value, it is of no avail to the de- fendant to show, that there was no consideration between himself and the third party who received the bill from him ; yet if, in such a case, the defendant is able to show that neither the plaintiff,' nor any intermediate holder between himself and the plaintiff, gave value for the bill or note, this will be a good defence to the ac- tion. Q:/) (p) Mills v. Barber, 1 M. & W. 425, 432; Holliday v . Atkinson, 5 B. & C. 500, 503 ; [Greer ,: George, 3 Eng. 181. In Parish v. Stone, 14 Pick. 198, 201, v. Estes, 31 Maine, 155. Mr. Greenleaf and JIi'. Justice Story have both stated the rule as above in respect to the burden of proving a want of consideration. 2 Shaw C. J. said: "The law attributes Greenl. Ev. §172; Story Prom. Xotes, § so much force and effect to the formal 181 ; Story Bills, § 178. The same rule written contract, and to the words 'value was assumed and acted upon in Doe v. received ' as to presume, in the absence of Burnham, 31 N. H. 430 ; Coburn v. Odell, proof, that there was a valuable consider- 30 N. H. 540 ; Horn v. Puller, 6 1ST. H. ation for the promise; and if the promisor 511; Adams v. Uackett, 27 X. H. 293. would avail himself of the defence, that it But the supreme court of Massachusetts was without consideration, it lays the bur- have, in a late ease, reviewed their former den of proof on him satisfactorily to show dicta and decisions upon this point, and that." In Jennison v. Stafford, 1 Cush. have settled it as the law of that state, 168, 169, Metcalf J. said: "A promis- that where a want of consideration is re- sovy note is presumed to be founded on a lied upon in defence of an action on a valid and sufficient consideration, and the note, and evidence is given on one side burden of proof is on the maker to show in the affirmative, and on the other in the the contrary. A fortiori, we think, is the negative, of the fact of consideration, the burden on him to show a failure of the burden of proof is on the plaintiff to sat- consideration.'' In Sawyer v. Vaughn, 25 isfy the jury, upon the whole evidence, of Maine, 337, 3.39, where it was claimed in that fact. Delano u. Bartlett, 6 Cush. defence to an action on a promissory note, that it was without consideration, Shep- ley J. said : " If the defendant would avoid the payment of his note, he should show the facts which would exonerate him. The burden of proof is upon him." So, in a case where the defence to an action on a promissory note was, that the consid- eration was illegal, the burden of proof was held to be on the defendant. Emery 364.] As to what is sufficient to cast on the plaintiff the onus of proving that he gave value for a bill or note, Smith v. Braine, 16 Q. B. 244; 20 L. J. Q. B. 201. (r/) Byles on Bills, 76, 3d edit. ; and see Bayley on Bills, 5th edit. 499. As to the effect of stating an apparently defect- ive consideration in a note, Bidout v. Bristow, 1 C. & J. 231. THE CONSIDERATION. 27 As to what is a valid consideration to support a simple contract, it is hardly necessary to observe, that, if the considera- ,„, * J . What con- tion be illegal, the contract will be void. It is not, how- sideration ever, proposed at present to treat of illegal considera- tions, but merely to point out what considerations are in law deemed sufficient, presuming that they embrace no illegal object. And on this subject, we may premise, that considerations, as they relate to deeds, are, in general, divided into good and Distinction valuable considerations. " A good consideration," says andmhi^blf Blachstone, Cr) in speaking; of the consideration for a considera- ' v J l b tions in the deed or grant, " is such as that of blood, or of natural case of deeds, love and affection, when a man grants an estate to a near relation ; being founded on motives of generosity, prudence, and natural duty. A valuable consideration is such as money, marriage, (s) or the like, which the law esteems an equivalent given for the grant ; and is therefore founded in motives of justice." And as to deeds, the rule is, that a deed made in consideration of natural love and affection only, is not necessarily void, although it may be made so by evidence. But if no fraud be shown, and if a consideration be in fact given, the deed is good ; and that consideration may be proved aliunde. (£) On the other hand, a deed made on a valua- ble consideration cannot, in general, be impeached. (?t) And ac- cordingly, in the case of a deed, the distinction between a good and a valuable consideration is this, — that a good consideration makes the instrument good as between the parties ; but a valuable con- sideration makes it good as against a subsequent purchaser, (x) We must observe, however, that the term good consideration, as thus used in the case of deeds, does not apply to simple Good consid- ... , , . i • eration not contracts, — to support which, mere relationship, or nat- su ffi c ientto ural love and affection, is not a sufficient considera- ^° e rt c * n _ tion. («/) And hence it is that, in treating of the con- tract. sideration for a simple contract, we must use the words good and valuable as convertible terms. (r) 2 Bl. Com. 297 ; see Gully v. Bishop (u) 2 Bl. Cora. 444. of Exeter, 10 B. & C. 584, 606. P (x) Per Tenterdcn C. J. Gully u. (s) Amb. 340 ; 1 Atk. 158 ; 1 Swanst. Bishop Of Exeter, 12 B. & C. 584, 606. 319 • 17 Ves. 271. in) ^ ee n0 ' e to Wennall v. Adney, 3 (t) Per Abinger L. C. B. Gale v. B. & P. 247, 251 ; [Mahan v. Malum, 7 B. Williamson, 8M.4W. 405, 409. Hon. 579.] 28 REQUISITES OF A SIMPLE CONTRACT : Valuable considerations are divided by the civilians into four Wh kinds : 1st. Do ut des ; as when I give money or siderations goods, on contract that I shall be repaid money or goods axe valuable. ° . . _„ . . . . . „ tor them again. Ur this kind are all loans or money upon bond or promise of repayment; and all sales of goods, — in which there is either an express contract to pay so much for them, or else the law implies a contfect to pay so much as they are worth. 2d. The second species is facio ut facias ; as when I agree with a man to do his work for him, if he will do mine for me ; or if two persons agree to marry together, or to do any other positive act on both sides. Or it may be to forbear on one side, on consideration of something done on the other; as that, in consideration the tenant will repair his house, 'the landlord will not sue him for waste. Or it may be for mutual forbearance on both sides ; as that, in con- sideration that A. will not trade to Lisbon, B. will not trade to Marseilles ; so as to avoid interfering with each other. 3d. The third species of consideration is facio ut des ; when a man agrees to perform anything for a price, either specifically mentioned, or left to the determination of the law to set a value to it. As when a servant hires himself to his master for certain wages, or an agreed sum of money, here the servant contracts to do his master's ser- vice, in order to earn that specific sum. Otherwise, if he be hired generally, for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4th. The fourth species is do ut facias, which is the direct counterpart of the pre- ceding;. As when I agree with a servant to give him such wages upon his performing such work ; which, we see, is nothing else but the last species inverted ; for servus facit ut herus det and herus dat ut servus faciat. (z) The general rule as to the sufficiency of the consideration seems , , to be, that it may arise either, 1st, by reason of a benefit General rule •> . . as to suffi- resulting to the party promising, or to a third person, by the act of the promisee ; or, 2dly, by reason of the lat- ter sustaining any loss or inconvenience, or subjecting himself to any charge or obligation, however small the benefit, charge, or inconve- nience may be ; provided such act be performed, or such inconve- nience or charge incurred, with the consent, express or implied, of the promiser, or, in the language of pleading, at his request, (a) (z) 2 Bl. Com. 444, 445. & B. 476, 487 ; 2 Wins. Satmd. 137 h ; (a) See per Car. Gerhard v. Bates, 2 E. Com. Dig. Action upon the Case upon THE CONSIDERATION. 29 Before we proceed to illustrate this general rule, by referring to particular instances, it may be proper to give some general explana- tion of its different branches. In the first place, touching the benefit conferred on the promiser sought to be charged, we may observe, that it is not es- Rule as to sential that the consideration should be adequate in point with 1 respect ' of actual value, — the law having no means of deciding to the b ™ ent e o conferred on upon this matter ; (5) and it being considered unwise to the promiser. interfere with the facility of contracting, and the free exercise of the judgment and will of the parties, by not allowing them to be sole iudges of the benefits to be derived from their barcrains, — - provided there be no incompetency to contract, and the agreement violate no rule of law. It is, indeed, necessary that the considera- tion should be of some value ; (c) but it is sufficient, as we have said, if it be of slight value only ; or even if it be such as could be valuable to the party promising. (oT) E. g. the compromise or abandonment of a doubtful right is a sufficient consideration for a contract, even where it turns out that the point given up was, in truth, against the promisee, (e) So an agreement to buy a horse, whereby the purchaser prom- Assumpsit, (B. 1) ; per Yates J. Pillans (6) See Moss v. Hall, 5 Exch. 46,49. v. Mierop, 3 Burr. 1673 ; per Lord Ellen- (c) Smith v. Smith, 3 Leon. 88. borough, Bunn v. Guy, 4 East, 190, 194; (rf) Per Cur. Haigh v Brooks, 10 A. & per Tindal C. J. Willatts v. Kennedy, 8 E. 309, 320. And see Cheale v. Kenward, Bing. 5, 8 ; [Miller v. Drake, 1 Caines, 45 ; 27 L. J. C. 784, 787 ; [S. C. 3 De'G. & J. Powell v. Brown, 3 John. 100; Porster v. 23; Lawrence.;. M'Calmont, 2 How. Puller, 6 Mass. 58; Overstreet v. Phillips, (U. S.) 420; Hubbard v. Coolidge, 1 Met. 1 Litt. 123; Townsley v. Sumrall, 2 84; Train c. Gold, 5 Pick. 384.] Ad- Peters (U. S.), 182; Lemnster v. Burck- equacy of consideration, when material at hart, 2 Bibb, 30 ; Seaman v. Seaman, 12 law, is a question for the court ; per Cur. Wend. 381; Randle v. Harris, 6 Yerger, Mallan <>. May, 11 M. & W. 653, 668; 508 ; Sampson v. Swift, 11 Vt. 315 ; Hub- per Best C. J. Homer v. Ashford, 3 Bing. bard „. Coolidge, 1 Met. 93 ; Chick a. 322, 327. Trevett, 20 Maine, 462 ; Lent v. Padel- (e) Longridge v. Dorville, 5 B. & Aid. ford, 10 Mass. 230 ; Train v. Gold, 5 Pick. 117 ; [Brooke v. Lord Mostyn, 2 De G., J. 380; Violett v. Patton, 5 Cranch, 142; & S. 373, note (1), 416; Stewart v. Stew- Conover v. Stillwell, 34 N. J. L. 54 ; Glas- art, 6 CI. & Pin. (Am. ed.) 911, and note gow v. Hobbs, 32 Ind.' 440. And a promise (1 ) ; Lucy's case, 4 De G., M. & G. (Am. to pay upon the performance of an act by ed.) 356; Kerr P. & M. (1st Am. ed.) 404 ; which a party will be injured becomes Cook v. Wright, 1 B. & S. 567, 568. The binding when the act is performed. Hil- compromise of a claim may be a good con - ton v. Southwick, 17 Maine, 305; Ethe- sideration for a promise, although litiga- ridge v. Thompson, 7 Ired. 127 ; Morse v. tion has not been actually commenced. Bellows, 7 N. H. 563 ; Sturges v. Rob- Cook v. Wright, 1 B. & S. 559.] bins, 7 Mass. 301.] 30 REQUISITES OF A SIMPLE CONTRACT : ised to pay a barley corn a nail for every nail in the horse's shoes, and double every nail, — which came, there being thirty-two nails, to five hundred quarters of barley, — would seem to have been con- sidered valid ; for the report states, that there was a motion in arrest of judgment, for a small fault in the declaration, which was overruled ; and that the plaintiff had judgment. (/) And where, in an action of assumpsit, it was alleged, that in consideration of 26s. 6d. paid, and 41. 17s. 6d. to be paid, the de- fendant promised to deliver two rye-corns on the then next Mon- dav, and double in arithmetical progression every succeeding Mon- dav, or every other Monday, for a year, which would have required the delivery of more rye than was grown in the whole year ; the court, on demurrer, seemed to consider the contract good ; and Powell J. said, that although the contract was a foolish one, yet it would hold good in law, and that the defendant ought to pay some- thing for his folly ; but no judgment was given, the case being compromised. ( tiff, and might eventually benefit the defendant. But, in such a case, a bond fide effort on the part of the plaintiff, to attain the proposed object for the defendant, would be necessary. So it has been held that the merely giving leave of absence to a soldier, at the instance of a third person, is a good consider- ation for a promise by the latter to the captain who gave such permission, that the soldier should return in ten days, or that the promiser would pay the captain 201. (c) And it may be stated, generally, that any damage, or any sus- pension or forbearance of his right, or any possibility of a loss occasioned to the plaintiff by the promise of another, is a suf- ficient consideration for such promise ; (^) but that if the con- sideration for the defendant's promise be an act which occasions neither a benefit to himself, nor a charge or detriment to the plaintiff; or if it be an act, or an agreement to do an act, which the promiser was already bound bv law to perform ; or if it be an engagement to do an act which is in the eye of the law of no value, — as to surrender a demise, strictly at will, — such consideration is not sufficient to support a promise, (e) Let us now proceed still further to illustrate the above rules, by showing their application to particular examples. 1st. And, first, an agreement to forbear either absolutely, (/) or for a certain time, (. Fink, 1 Exch. 74. (A) OlderUiaw i>. King, 2 H. & N. 517. 36 REQUISITES OF A SIMPLE CONTRACT : or equitable demand, is a sufficient consideration for the promise of the debtor, or of a third person, to pay the debt, or do any other act. (£) By such forbearance the creditor is delayed, and the debtor is, or may be benefited ; so that there concur both the ordinary grounds upon which a sufficient consideration may be rested, (i 1 ) Thus, where the declaration stated that there had been, and then were, divers accounts between the plaintiff and defendant, which accounts were open and unsettled ; and that the plaintiff claimed of the defendant that he was indebted to him in a large sum of money, and the defendant claimed of the plaintiff, that he, the plaintiff, was indebted to the defendant ; and that it was agreed between the parties, that each of them should withdraw his claim, and that the defendant should pay the plaintiff an annuity for life ; and it then averred that, in consideration that the plaintiff would withdraw his claim, the defendant promised to pay the annuity : it was held, that a valid consideration for the defendant's promise appeared on the face of the declaration, inasmuch as there was a plain detriment to the plaintiff in foregoing his claim to the balance. (A;) So, where there had been an agreement to refer certain matters in difference, and the parties, when before the arbitrator, entered into a mutual engagement to abandon the reference, and the contingent right to the costs of it, and agreed that one should pay the other a sum of money in satisfaction of his claim : it was held, that there was a good consideration for this agreement. (7) So, it has been held, that forbearance for a given time, on the part of the assignee of a bond, to sue the obligor, is a good consideration for a promise by (i) Cook v. Wright, 1 B. & S. 559, and makerfor one year, is a sufficient consider- see 1 Roll. Abr. 24, pi. 33; Com. Dig. ation for a guaranty, by a third person, o Action npon the Case upon Assumpsit, (F. the payment of the note. Sage v. Wil- 8), Assumpsit, (B. 1) ; 2 Wms.Saund.13G. «>x, 6 Conn. 81. See SiWis v. Ely, 3 [If one promise to pay the debt of another, Watts & S. 420 ; Watson r. Randall, 20 in consideration that the creditor will Wend. 201 ; Ford v. Rehman, Wright, ' forbear and give further time for the pay- 434; Gilman v. Kihler, 5 Humph. 19; ment" of the debt, this is sufficient con- Colgin v. Henley, 6 Leigh, 85 ; Bixler r. sideration, though no particular time of Ream, 3 Penn. 282 ; Jennison v. Stafford, forbearance be stipulated; the creditor 1 C'u-h. 168; Robinson v. Gould, 11 averring that he did therefore forbear, Cash. 55. J from such a day till such a day. King v. U' 1 ) [See Branch Bank of Mobile v. Upton, 4 Greenl. 55-2. See Kiting v. Van- Tames, 9 Ala. 949; Rood v. Jones, 1 Doug derlyn, 4 John. 237; Lemastery. Buckbart, (Mich). 188.] 2 Bihb, 25, 30 ; Hamaker v. Eberly, 2 {k) Llewellyn v. Llewellyn, 3 D. & L Binn. 506. An agreement by the payee 318. of a promissory note to forbear to sue the (') Smyth v. Holmes, 10 Jur. 862 (Exch.) THE CONSIDERATION. 37 the obligor to pay the assignee at the expiration of that time, or give him a warrant of attorney for the amount, (wt) And the same rule holds in the case of forbearance by the assignee of a debt, such forbearance being as beneficial to the debtor as if the assignee had been the original creditor and had forborne, (n) So, forbear- ance by the creditor, or by an assignee of the debt of a testator, at the request of his executor, to sue the executor, is a good con- sideration for a promise by the executor to pay the debt, (o) Where the defendant was in custody under a writ of execution, irregular in itself, and from which arrest he might, possibly, have been entitled to be discharged by virtue of his privilege as a mem- ber of parliament ; and the plaintiff procured him to be discharged from custody under that writ, without entering into any question as to his right to be discharged generally, or putting the defendant to the trouble of applying to the court on the ground of irregularity in the writ, — an application which, it seemed, would probably have led the court to amend the writ ; such discharge was held to be a good consideration for a promise by the defendant, to settle the plaintiff's claim by paying part in money, and giving a bond for the residue, (p) A receiver appointed ' by the court of chancery brought an action for a debt due from E. F. to A. B. and C, whose estate he was empowered to collect, and averred, that E. F. being liable to him, the plaintiff, as receiver, the defendant promised to pay him, in consideration that he would give E. F. time for payment, and in case of E. F.'s default : and it was held, on a motion in arrest of judgment, that the declaration showed a sufficient consideration for the defendant's promise : for, as receiver, the defendant had authority to forbear proceeding for the debt, and to enter into the contract. () Bidwell v. Catton, Hob. 216, 2d res.; leged debt: because it might be presumed Poolley v. Gilberd, 2 Bulstr. 41 ; Parker v. after verdict, that the plaintiff had proved Leigh, 2 Stark. 229, 230. at the trial that there was somebody to (k) Mapes v. Sidney, Cro. Jac. 683 ; whom the plaintiff did forbear ; and see 1 Boll. Abr. 24 pi. 133; [Lonsdale v. Marshall v. Birkenshaw, 1 N. B. 132. [It Brown, 4 Wash. C. C. 148 ; Sidwell v. must appear that there was some party Evans, 1 Penn. 385 ; Downing v. Funk, 5 who could have been sued. Nelson v. Bawle, 69; Hakes v. Hotchkiss, 23 Vt. Searle, 4 M. & W. 795.] 231.] (/) Smith *. Monteith, 13 M. & W. (Z) Semple v. Pink, I Exch. 74 ; Seck- 427 ; Atkinson c. Settree, Willes, 4S2. See ford's case, Cro. Eliz. 455. Lloyd v. Lee, Str. 94; 2 Wms. Saund. 137 c. THE CONSIDERATION. 41 an agreement to forbear, in which no time is mentioned, is good ; and that, in declaring on snch an agreement, it may be treated as an agreement to forbear for a reasonable time, (wi) But it appears that a promise to forbear " for a little time," (w) or " for some time," (o) is too indefinite to constitute a good con- sideration for a contract, (o 1 ) It is not material that a party who makes a promise, in consid- eration of forbearance to a third person, has no interest _ , r ' Party prom- in the transaction, and cannot be benefited by the delay. is!n S need T-l 11 1 I 1 1 n0t nave an r or example, where a person employed by the admin- interest in istrator of a deceased debtor, to wind up the concerns of eay- the deceased's business, gave an undertaking to a creditor of the deceased, to furnish moTiey to meet an acceptance which such cred- itor had given, in furtherance of an accommodation arrangement for delaying payment of his debt ; he was held liable on such under- taking, though he was merely a clerk, and had no interest in the goods sold by the creditor, and had not received any funds applica- ble to the discharge of the debt, (p) And, in another case, it was held, that the forbearance by the plaintiff, at the defendant's re- quest, to enforce a fieri facias against the goods of a third person for QOL, was a valid consideration for the defendant's promise to pay the plaintiff 107Z. in seven days ; the chief justice observing, that "if the inconvenience of an execution against these goods, at the time in question, was so great that the defendant thought proper to buy it off at such an expense, he did not see that the consideration was insufficient for the promise." (^) 2d. The fact of intrusting a person with property is a consid- eration, in itself, for his promise that, if he acts upon the trust, he will faithfully discharge it. (q 1 ) The obli- party with gation in this case arises ex mandato, which is defined to be, contractus quo aliquid gratuito gerendum committitur et accip- (m) Oldershaw v. King, 2 H. & N. 517 ; (o) 1 Roll. Abr. 23, pi. 26. and per Bovill C. J. and Brett J. Coles (o 1 ) [Lonsdale v. Brown, 4 Wash. C. C. v. Pack, L. Rep. 5 C. P. 65, 71. 148.] (n) 1 Roll. Abr. 23, pi. 25. In Baker (p) Maud v. Waterhouse, 2 C. & P. v. Jacob, 1 Bulstr. 41, the declaration laid 579. the consideration to be a forbearance "for (q) Smith v. Algar, 1 B. & Ad. 603. some little time, to wit, a fortnight, or there- (q 1 ) [See Clark v. Gaylord, 24 Conn, abouts," and held good after the verdict, 484 ; Graves v. Ticknor, 6 N. H. 537 ; in respect of the videlicit. Robinson v. Threadgill, 13 Ired. 39.] 42 REQUISITES OF A SIMPLE CONTRACT : itur. (r) And Bracton (s) says, " Contrahitur etiam obligatio non solum scripto et verbis sed et consensu, sicut in contractibus bonae fidei ; ut in emptionibus, venditionibus, locationibus, conductionibus, societatibus et raandatis." Therefore, though an action will not lie for not doing a thing where there is no consideration, such as re- ward, to uphold a promise to do it ; yet where there is a delivery of goods and chattels, or moneys, to a person who undertakes to do something respecting them, even without any reward for his trouble, an action will lie on this bailment, if there be a neglect in the management, by which the goods are spoiled, or the like, (s 1 ) The above distinction is clearly taken in the Year Book, 11 H. Party in- 4, 33, where an action was brought against a carpenter, tor\ni$feas- e f° r tna * ; ae nac ^ undertaken to build the plaintiff a house once, but within such a time, and had not done it ; and it was ad- not for norir- ' ' feasance. judged the action would not lie, no consideration being laid. But there the question is put to the court — what if he had built the house unskilfully ? And it was agreed, that in such case the action would have lain, (t) So in an action of assumpsit the declaration was, that whereas the plaintiff was obliged to J. S. in 401. for the payment of 20?., and, the bond being forfeited, he delivered 101. to the defendant, to the intent that he should pay it to J. S. in part of payment without delay ; in consideration whereof the defendant assumed, &c. ; and the breach assigned was, that the defendant had not paid the money ; whereupon J. S. had sued the plaintiff for the debt. The defendant pleaded non assumpsit; on which plea there was a ver- dict for the plaintiff: and it was moved in arrest of judgment, that here was not any consideration, because it was not alleged that the plaintiff delivered the money to the defendant at his request ; and the acceptance of it, to deliver to another without delay, could not be any benefit to the defendant to charge him with this promise. Sed non allocatur ; for being that he accepted this money to deliver it, it was a good consideration to charge him ; and judgment was given for the plaintiff, which was affirmed on writ of error, (u) And this decision was recognized in a modern case, in which the court seemed to be of opinion, that a declaration in assumpsit, (r) Vinnius, Com. on Just. lib. 3, tit. Kent, 466 ; Ferguson v. Porter, 3 Florida, 27, 684. 38 ; French v. Reed, 6 Binn. 308 ; Alex- (s) Bract, lib. 3, 100. ander v. Motlow, 1 Sneed, 253.] (s 1 ) [See Story Bailm. § 164 et seq. ; (t) Vide 19 Hen. 6, 49 ; 48 Edw. 3, 6. Rutgers v. Lucet, 2 John. Cas. 92 ; 2 (w) Wheatley v. Low, Cro. Jac. 667. THE CONSIDERATION. 43 which stated, that the plaintiff, being about to proceed to N., paid money to the defendants in London, that they might cause it to be paid to him at N. on a certain day ; that the defendants received the money for that purpose from the plaintiff; and that thereupon, in consideration of the premises, they promised to cause the money to be paid to the plaintiff at N., disclosed a sufficient consideration for such promise, (x) This principle was much considered by Holt C. J. and all the judges, in the celebrated case of Coggs and Bernard. (#) That was an action on the case, wherein the plaintiff declared that whereas the defendant assumed safely and securely to take up sev- eral hogsheads of brandy, then in a certain cellar in D., and safely and securely to lay them down again in a certain other cellar in W. ; the said defendant and his servants and agents, so negligently and improvidently put them down again into the said other cellar, that, for want of care in the defendant, his servants and agents, one of the casks was staved, and a great quantity of brandy spilt ; and a motion was made in arrest of judgment, because it was not al- leged in the declaration, that the defendant was a common porter, nor averred that he had anything for his pains. But as to the ob- jection, that there was no consideration to ground the promise upon, and that the undertaking was nudum pactum, Holt C. J. and the rest of the court, answered : that the owner's trusting the bailee with the goods, was a sufficient consideration to oblige him to a careful management. Indeed, if the agreement had been execu- tory, to carry these brandies from one place to another such a day, the defendant had not been bound to carry them, (y 1 ) but this was a diffei-ent case, for assumpsit did not only signify a future agree- ment, but, in such a case as this, it signified an actual entry upon the thing, and taking the trust upon himself. And if a nian will do that, and miscarries in the performance of his trust by reason of cross neglect, an action will lie against him for that, though nobody could have compelled him to do the thing. The case of Whitehead v. Greetham (2) is another authority upon this subject. There the declaration stated, that the plaintiff had retained the defendant at his request, to lay out 1001. in the (x) Shillibeer v. Glyn, 2 M. & W. 143. Stephens v. White, 2 Wash. (Va.) 211, (y) 2 Ld. Raym. 909. 212.] (,/) [See Thome v. Deas, 4 John. 84 ; (z) 2 Bing. 464 ; S. C. M'CI. & Y. 205. McGee v. Bost, 6 J. J. Marsh. 455; 44 REQUISITES OF A SIMPLE CONTRACT : purchase of an annuity ; that the defendant promised to use clue care to lay out the money securely ; that the plaintiff delivered the money to the defendant for that purpose ; but that he laid it out on insufficient security : and on error in the exchequer chamber, after verdict, it was held, that the mere delivery of the money was a suffi- cient consideration for the promise ; and that it was not fatal to the count, that it did not show that the defendant was to receive any reward for his services. To the same effect is the case of Elsee v. Gatward. (a) There the first count stated, that the plaintiff retained the defendant, who was averred to be a builder, to repair a house before a given day ; that the defendant accepted the retainer, but did not perform the work, per quod the house was injured ; and the court held, on special demurrer, that this count could not be supported, because it was for a mere nonfeasance, and it did not appear that the defend- ant was to receive any reward ; that the defendant, though he was a carpenter, was not bound to do all work tendered to him ; and that the word retained did not necessai-ily import consideration. The second count, however, stated that the plaintiff, being possessed of some old, materials, retained the defendant to perform the car- penter's work on certain buildings of the plaintiff, and to use those old materials ; but that the defendant, instead of using those, made use of new ones, thereby increasing the expense. And this count for the misfeasance was held to be good upon special demurrer. And the case of Dartnall v. Howard (6) further illustrates the law on this subject. The declaration was in assumpsit, and it al- leged that, in consideration that the plaintiff would retain and em- ploy the defendants to lay out a sum of money in the purchase of an annuity, they undertook to do their duty ; that plaintiff retained them, but defendants did not do their duty, but took insufficient se- curity, whereby plaintiff lost the money ; and it was held, on mo- tion in arrest of judgment, that the declaration was bad ; because it did not state that any reward was to be paid to the defendants, or that they were employed as attorneys, or in any other particular character, so as to make them responsible for taking a bad security, although not guilty of negligence or dishonesty. The court ob- served, that the word retained did not necessarily mean that the defendants were attorneys, or were to be remunerated ; that the (a) 5 T. R. 143. (h) 4 B. & C. 345 ; and see, further, Balfe v. West, 13 C. B. 466. THE CONSIDERATION. 45 only duty imposed, under the ch'cumstances stated in the declara- tion, was a duty to act faithfully and honestly, not an absolute duty to take a sufficient security ; and that, therefore, there was not shown to be a good consideration for the promise laid in the declar- ation. 3d. The assignment of a debt, even of an uncertain or unascer- tained amount, due from a third person, is a sufficient . . ... . . . Assignment consideration for a promise by the assignee, (c) notwith- of a debt or ,. , . . . "' • , i , "gat. standing a chose in action is not assignable at law, so as to furnish the assignee with a right of suit in his own name against the debtor ; (cT) for, in equity, such an assignment is good ; (e) and even a court of law will recognize it for some purposes. (/) So it lias been held, that an agreement by A., at the request of B., to give up 1501., part of a debt of 200Z-, due from A. to ©., and to accept a third person as his debtor as to that part, is a good consid- eration for a promise by B. to procure a check or note from such third person, in favor of A., for the 150Z. so given up. (g) And so, a promise by A. to B., to relinquish to him the benefit to be de- rived from a written agreement between A. and a third person, for the purchase of a freehold house, and an engagement by A. to per- mit B. to become a purchaser instead of A., constitute a sufficient consideration for B.'s promise to pay A. a sum of money. (Ji) (c) Mousdale v. Birchall, 2 Bl. R. 820; promise, or as an effect of its performance. Com. Dig. Action upon the Case upon See 1 Wms. Saund. 210, u. (1); Crocker Assumpsit, (B. S3) ; 'per Bayley and Hoi- B.Whitney, 10 Mass. 319; Warren i>. royd JJ. Price v. Seaman, 4 B. & C. 525, Wheeler, 21 Maine, 484 ; Parkhurst u. 528. [See Page v. Thrall, 2 Vt. 448.] Dickerson, 21 Pick. 310 ; Morse i: Bel- {d) 1 Wms. Saund. 210. By "The lows, 7 N. H. 565; Mowry v. Todd, 12 Bankruptcy Act, 1869" (32 & 33 Vict. Mass. 281; Usher v. D'Wolfe, 13 Mass. c. 71), s. Ill, any person to whom any- 290.] thing in action belonging to the bankrupt (e) 1 Wms. Saund. 210. And it is now is assigned in pursuance of that act, may a good plea by way of equitable defence at bring or defend any action or suit relating law. Jeffs v. Bay, L. Rep. 1 Q. B. 372. to such thing in his own name. An as- But the assignee of a chose in action takes signment of a chose in action need not be it subject to all the equities of the assignor, by deed. Howell v. MTvers, 4 T. R. 960 ; Mangles v. Dixon, 3 H. L. Cas. 702, 731 ; Heath v. Hall, 4 Taunt. 326. [An assignee [Stocks v. Dobson,4 De G., M. & G. (Am. mav sue in his own name where the debtor ed.) 16, note (I), and cases cited ; post, sec. has expressly promised to pay him. Such IV.] a promise, like all others, must, of course, (/) 1 Wms. Saund. 210. have a consideration to support it. This . (//) Peate v. Dickcn, 1 Cr., M. & R. 422. seems to be found in the discharge of the (h) Price v. Seaman (in error), 4 B. & debtor from the original claim, which is C. 525; (in C. P.) 2 Bing. 437. necessarily implied as a condition of the 46 REQUISITES OF A SIMPLE CONTRACT : Release of equitable claim. So it has been held, that a promise to assign the subject of a mere expectancy, e. g. a devise expected by the assignor, would be a suf- ficient consideration to support a promise to pay for it. (i) So the release of an equity of redemption is a good considera- tion for a promise. This was decided in the case of Thorpe v. Thorpe, (&) in which the court held, that, " without doubt, a release of an equity of redemption is a very good consideration, and that the common law will take no- tice that the mortgagor has an equity to be relieved in chancery." So, it would appear that the release of any equitable interest is a good consideration to support a promise. (/) But, wherever a promise is alleged to have been made in consid- No consider- eration of the release of any interest, if it appear that promisliThad tue promisee had, in fact, no interest which passed by no interest. tne re l ease? there will be no consideration for the prom- ise alleged, (ni) 4th. A considei'ation which has for its object the prevention of Prevention litigation, and the settlement of disputes between the of ltigation. p art ; es> j s a ) so sufficient to support a promise. [Com- promises of doubtful and conflicting rights and claims, the settle- ment of boundaries and the like, not only form a good and suffi- cient consideration to uphold an agreement, but are highly favored in the law.] (m 1 ) Thus, an agreement that an action pending, at ((') Per Cur. Cook v. Field, 15 Q. B. v. Bangh, 11 M. & W. 641 ; Brooke v. 460,475. Lord Mostyn, 2 De G., J. & S. .373, note (jfc) 1 Ld. Raym. 662 ; S. C. Salk. 171 ; (1), 416; Stewart v. Stewart. G CI. & Fin. and 12 Mod. 455. The pleadings are in ( Am. ed.) 911, and note (1 ); Lucy's case, 4 ])e G., M. & G. (Am. cd.) 356 ; Kerr, F. & M. (1st Am. ed ) 404; Scott r. War- ner, 2 Lansing, 49 ; Fewer* r. Freeman, 2 Lansing, 127 ; Pitkin !•. Noyes, 48 X. II. 304 ; Zane v. Zaire, 6 Munf. 40G ; Taylor v. Patrick, 1 Bibb, 168 ; Fisher v. May, 2 Bibb, 448; Trnett r. Chaplin, 4 Hawks, 178; Hodges o, Saunders, 17 Pick. 471 ; Brown v. Sloanc, fi Watts, 421 ; Barton v. Wells, 5 Whart. 225; Stoddard i: Mi\, 14 Conn. 12 ; Barlow r. Ocean Ins. 0<>. 4 Met. 270; Tuttlo v. Tnttlc, 12 Met. 551 ; Rice f. Bixler, 1 Watts & S. 456; Logan v. Matthews, 6 Barr, 417; Mullauphy v, Riley, 10 Misson. 4S9 ; Williams r. Alex- ander, 4 Irctl. Kip 207 ; McKinley v. Wat- Lut. 245, and .3 Ld. Raym. 341. (I) Wells v. Wells, 1 Lev. 273. (m) Kaye a. Dutton, 7 jVI. & G. S07. [The surrender or discharge of a claim which is utterly without foundation, and known to be so, is not a good considera- tion for a promise. Kidder v. Blake, 45 N. H. 330 ; Pitkin r. Noyes, 48 N. H. 304. A discharge from an oral contract, inoper- ative under the statute of frauds, does not furnish a sufficient consideration to sup- port an express promise made by the party released. North t>. Forest, 15 Conn. 400.] (m 1 ) [Cook v. Wright, 1 B. & S. 559; Longridgc v. Dorville, 5 B. ot Aid. 117; f'.mp-r .. Parker, I 5 C. IS. S22 ; Edwards THE CONSIDERATION. 47 the suit of the plaintiff against the defendant, should be settled, and all proceedings thereon stayed, and that the defendant should pay to the plaintiff a certain sum of money in respect of the costs and damages therein, is founded on a good consideration, (n) And so it is in the ordinary case of a submission of differences to arbi- tration ; the rule in such cases being, that the mutual promises are a good consideration, (o) In Penn v. Lord Baltimore, ( p) a bill was filed in chancery to enforce specific performance of articles of agreement under seal, entered into for the purpose of ascertaining and settling the boun- daries of two provinces in America, and providing for mutual con- veyances, &c. ; and it was objected, amongst other things, that the agreement was merely voluntary, and that equity never decrees specifically without consideration. But Lord Hardwicke said, " that it was true that the court never decreed specifically without a consideration ; but that the agreement in question was not with- kins, 13 111. 140 ; Field v. Weir, 28 Miss. (6 Cush.) 56 ; Smith v. Pincombe, 3 Mac. & G. 653 ; Kerr o. Lucas, 1 Allen, 279 ; Leach v. Fobes, 11 Gray, 509. The court will not investigate the merit or demerit of the different claims for the purpose of setting aside such compromise. Mills v. Lee, 6 Monr. 97; Moore v. Fitzwater, 2 Rand. 442 ; Bonnet v. Paine, 5 Watts, 259. The real consideration which each party receives under a compromise being, not the sacrifice of the right, but the settle- ment of the dispute, and the abandonment of the claim, it is no objection to the valid- ity of the transaction that the right was really in one of the parties only, and that the other had no right whatever. The fact that the one may have had no claim is immaterial, if he was honestly mistaken as to his claim. It is enough, if at the time of the compromise, he may have be- lieved he had a claim, and that the parties have, by the transaction, avoided the ne- cessity of going to law. To render valid the compromise of a litigation, it is not even necessary that the question in dispute should really be doubtful, if the parties bona fide consider it to be so. It is enough to render a compromise valid, that there is a question to be decided between them. Cook v. Wright, 1 B. & S. 559 ; Long- ridge v. Dorville, 5 B. & Aid. 117; Kerr v. Lucas, 1 Allen, 279, and cases above cited ; Kerr F. & M. (1st Am. ed.) 404 ; Brooke v. Lord Mostyn, 2 De G-, J. & S. (Am. ed.) 373, and note (1), 416; Stewart v. Stew- art, 6 CI. & Fin. (Am. ed.) 911, and cases cited; per Gibson C. J. in Hoge v. Hoge, 1 Watts, 216, 217; Cavode v. M'Kelvcy, Addis. 56 ; O'Keson v. Barclay, 2 Penn. 531 ; Russell v. Cook, 3 Hill, 504; Blake v. Peck, 1 1 Vt. 483 ; Durham v. Wadling- ton, 2 Strobh. Eq. 258 ; Allen v. Prater, 35 Ala. 169 ; Seaman v. Seaman, 12 Wend. 381 ; Dixon v. Evans, L. R. 5 H. L. 606.] (n) Crowther v. Farrar, 15 Q. B. 677; 20 L. J. Q. B. 298. But an action will not lie on an undertaking contained in a judge's order, although such order be made by consent of the parties, and the under- taking be founded on a good consideration. Hookpayton v. Bussell, 10 Exch. 24. (o) Com. Dig. Action upon the Case upon Assumpsit, (A. 1 ), (B. 2), 9, Arbitra- ment, (D.). [See Morrow v. Smith, 10 Mi.ssoii. 308.] (p) 1 Ves. sen. 444; and see Stapilton o. Stapilton, 1 Atk. 3; Win man v. Roper, 1 Chauc. E. 84. 48 KEQUISITES OF A SIMPLE CONTKACT : out a consideration": for, though nothing valuable was given on the face of the articles as a consideration, the settling of boundaries, and peace and quiet, formed a mutual consideration on each side ; and in all cases made a consideration to support a suit in chancery, for performance of the agreement for settling the boundaries." In like manner, it is held that an action will lie on a promise, to ac- knowledge satisfaction on the record in consideration of 41. paid by the plaintiff, for a debt of 51., which the defendant had recovered against him ; because it was a benefit to the defendant to have the 4/. without charge, and it might be there was an error on the rec- ord, so that the other party might have avoided it. (q) So it is held, that if an action be brought on a quantum meruit, and the defendant agree to pay a less sum than the demand in full, that is a good consideration for a promise by the plaintiff to pay his own costs, and proceed no further. (V) And it would seem that if there were a demand against several, and only one were sued, such an agreement between the plaintiff and that one would inure to the benefit of all ; unless it appeared that the plaintiff received the sum, not in discharge of the debt, but merely to relieve the defendant in that suit, (s) But it has been held, that the mere statement of a disputed ac- count between the plaintiff and the defendant, and an agreement bv the former to give up part of his claim, is not a good considera- tion for a promise by the defendant to pay the balance, there being no cross-demands between the parties, (t) So, the giving up a suit or proceeding, instituted to try a ques- tion respecting which the law is doubtful, is a good con- Giving up a , / ° . .11 , n doubtful sideration for a promise to pay a stipulated sum. (t l ) And therefore, where a ship, having on board a pilot re- quired by law, ran foul of another vessel ; and proceedings were in- stituted by the owners of the latter, to compel the owners of the former to make good the damage ; and the former vessel was de- tained until bail was given ; and, pending such proceedings, the (q) Reynolds v. Pinhowe, Cro. Eliz. (t 1 ) [See Wilbur v. Crane, 13 Pick. 284 ; 429. Union Bank of Georgetown v. Geary, 5 (r) Wilkinson u Byers, 1 A. & E. 106, Peters, 115; Blake v. Peck, 11 Vt. 483; 113. Truett v. Champlin, 4 Hawks, 178 ; Field (s) Walters v. Smith, 2 B. & Ad. 889, v . Weir, 28 Miss. (6 Cush.) 56; O'Keson 895. «. Barclay, 2 Penn. 531.] (1) Bridgman v. Dean, 7 Exch. 199; 21 I.. J. E.\eh. 90. THE CONSIDERATION. 49 agents of the owners of the vessel detained agreed, — on the owners of the damaged vessel renouncing all claims on the other vessel, and proving the amount of the damage done, — to indem- nify them, and to pay a stipulated sum by way of damages ; it was held that, there being contradictory decisions as to the point, whether ship-owners were liable for an injury done while their ship was under the control of the pilot required by law, there was a suf- ficient consideration to sustain the promise made by the agents of the owners of the detained vessel, to pay the stipulated dam- ages, (w) And so, where certain stock of the plaintiffs was trans- ferred under a forged power of attorney, and the Bank of England offered to replace the stock, if the plaintiffs would first prove the amount under a commission in bankruptcy, which had been issued against the firm in which the forger of the power had been a part- ner ; and, after this offer, the plaintiffs received a dividend, and engaged to tender a proof of their demand under the commission ; it was held, that they could not sue the bank in respect of the stock, until they had fulfilled their engagement to tender the proof under ( the commission ; (.t) the court, in delivering judgment, observ- ing, " that it was, at the time of the offer, a question of great -nicety and difficulty, whether the bank was by law liable to make ^good the loss; so that the engagement of the bank to replace the stock without any litigation on their part, was of itself a very val- uable and important concession, and a sufficient consideration to support a promise by the plaintiffs, that they would tender, and endeavor to enforce their proof against the bankrupt's estate." So, where certain goods had been seized by the commissioners of ex- cise, and a writ of appraisement sued out in order to their condem- nation ; it was held, that the agreement of the commissioners, to restore the goods, was a good consideration for a promise to pay them the appraised value thereof; because, by this agreement, the crown gave up the present benefit of the suit, and also the benefit of obtaining costs, if the other party should not succeed in their claim to the goods, (y) '•If A. lease land to B. at will, and A. assume to B., that, in consideration that he will surrender the said estate at will to him, lu) Longridge v. Dorville, 5 B. & Ad. (x) Stracy v. The Bank of England, 6 117; observed upon in Walters v. Smith, Bing. 754. 2 B. & Ad. 889. (y) Atlee v. Backhouse, 3 I. & W, 633, 651. 50 REQUISITES OP A SIMPLE CONTRACT : he will provide a parsonage for J. S., this is not a good considera- tion for an action, because A. may determine the estate at will at his pleasure. But if it be alleged in such case that there was a controversy between A. and B., whether it was a letting at will or for years, And upon that the promise was made, there is a good con- sideration. So it has been held, that if A., in consideration that B. will make such an estate at will as his counsel shall devise, promise, &c, this is not a good consideration, because, immediately after the estate is created, he may determine it." (z) And this doctrine was recognized and confirmed in a modern case, in which Chief Justice Best said: " It is not necessary that the party should have a right to hold ; if it be doubtful whether he has a right to hold, that is a good consideration." (a) So, there can be no doubt that the resignation of a colorable claim, conflicting- with that of another person, and the settlement of the dispute between the par- ties without suit, constitute a good consideration. (F) So where the defendant was sued for 50Z., and he pleaded infancy, but before the trial he agreed to pay to the plaintiff' and the latter agreed to ac- cept, the sum of 30/. and costs, in satisfaction of his claim ; it was held that this agreement was founded on a good consideration, al- though it was doubtful whether the defendant could have supported his plea of infancy, (c) And we have already remarked, that, in these cases, inequality of consideration does not of itself form any objection. 5th. We have already mentioned some cases in which it has . , been held, that a mere promise to do an act at a future Promise for a M promise. period, is a sufficient consideration for an engagement to the party making such promise. And there are other authorities which show, that the mere promise, without performance, is, in such case, a sufficient consideration, as it subjects the party to a charge and obligation which he would not otherwise have incurred, (d) (z) 1 Roll. Abr. Action sur Case, (V.), Allen, 279; Morey 7). Newfane, 8 Barb, p. 23, pi. 27, 28, 29 ; 1 Vin. Abr. 309. 645 ; Kerr F. & M. (1st Am. ed.) 404. (a) Richardson u. Mellish, 2 Bing. 224, Brooke u. Lord Mostyn, 2 DeG., J. & S. 249. And see Edwards v. Baugh, 11 M. 373.] & W. 641 ; and Haigh v. Brooks, 10 A. & (c) Cooper u. Parker, 14 C. B. 118 ; E. 309. affirmed in Cam. Scac. 15 C. B. 822. (b) Thornton v. Fairly, 2 Moore, 397, (d) See Nichols v. Rugubred, Hob. 88 ; 408, 409. See Cann v. Cann, cited 1 Atk. Hebden v. Rutter, 1 Sid. 180 ; Stangborow 10; 1 Vera. 4; 2 Vent. 353; [Cook o. v. Warner, 4 Leon. 3 ; Gower o. Capper, Wright, 1 B. & S. 559 ; Kerr v. Lucas, 1 Cro. El. 543 ; Wichals u. Johns, lb. 703 ; THE CONSIDERATION. 51 Thus, the mere promise of a party to become a partner in a firm, is a sufficient consideration for a promise to receive him as a part- per Parke J. Wentworth v. Bullen, 9 B. & C. 840, 849, 850 ; per Cur. Cartwright v. Cooke, 3 B. & Ad. 703 ; [Billings v. Vanderbcck, 23 Barb. 546. In an action for a breach of the defendant's agreement to sell and deliver certain goods to the plaintiff, the promise of the latter to ac- cept and pay for the goods, is a sufficient consideration for the defendant's promise to deliver them. White v. Dewitt, 2 Hall, 405. An agreement to sell is a sufficient consideration for an agreement to pur- chase. Appleton a. Chase, 19 Maine, 74. The promise of one party is sufficient con- sideration for that of the other. Babcock v. Wilson, 17 Maine, 372; Quarles v. George, 23 Pick. 401; Whitehead u. Pot- ter, 4 Ired. 257 ; Howe v. O'Malley, 1 Murph. 287. Where several promise to contribute to a common object, which they wish to accomplish, - the promise of each has been held a good consideration for the promise of the others. Society in Troy v. Perry, 5 N. H. 164; Stewart v. Hamilton College, 2 Denio, 403 ; George v. Harris, 4 N. H. 533 ; State Treasurer v. Cross, 9 Vt. 298 ; Commissioners v. Perry, 5 Ham. 58; Hanson u. Stetson, 5 Pick. 506; So- ciety in Troy v., Goddard, 7 N. H. 435; Fisher v. Ellis, 3 Pick. 323 ; Amherst Academy v. Cowls, 6 Pick. 427 ; Ives v. Sterling, 6 Met. 310. Williams College v. Danforth, 12 Pick. 541 ; Thompson u. Page, 1 Met. 565 ; Ladies' Collegiate Insti- tute v. French, 16 Gray. 196. That such promises, as in the case of voluntary sub- scriptions, are binding where expenses and liabilities have been incurred in con- sequence of them, see ante, 32, note (r). That such subscriptions are binding where there have been no expenses incurred nor liabilities undertaken on the strength of them, seems to be assumed in some of the cases above cited. But the law on this last point is still unsettled. See Stewart v. Hamilton College, 2 Denio, 40.3 ; Ives v. Sterling, 6 Met. 310; Whitestown v. Stone, 7 John. 112 ; McAuley v. Bellinger, 20 John. 89 ; Caul v. Gibson, 3 Barr, 406 ; Collier w. Baptist Society, 8 B. Mon. 68 ; Limerick Academy v. Davis, 11 Mass. 114 ; Bridgewater Academy v. Gilbert, 2 Pick. 579 ; Foxcroft Acad. u. Favor, 4 Greenl. 382 ; Wilson v. Baptist Education Society, 10 Barb. 308; Underwood v. Waldron, 12 Mich. 73, 89; McDonald v. Gray, 11 Iowa, 508 ; Johnston v. Wabash College, 2 Car- ter (Ind.), 555; Reformed Protestant Dutch Church v. Brown, 29 Barb. 335 ; Peircc v. Ruley, 5 Ind. 69 ; Robertson u. March, 3 Scam. 198 ; Watkins v. Eames, 9 Cush. 537 ; Mirick v. French 2 Gray, 420. In Ladies' Collegiate Institute v. French, 16 Gray, 196, it was decided that the im- plied promise of the promisee to hold and appropriate the funds subscribed, in con- formity with the terms and objects of the subscription, is a sufficient legal considera- tion for the promise of a subscriber to a fund for the endowment of a corporation created for charitable purposes. In this case (p. 201) Chapman J. said: " Sub- scriptions of this character have been made the subject of litigation in many instances ; and the earlier cases in our reports contain dicta some of which have not been sus- tained by later decisions. But in the cases of Amherst College v. Cowls, 6 Pick. 427; Williams College u. Danforth, 12 Pick. 54 1 ; and Thompson v. Page, 1 Met. 565, their validity is established, and the ground of it is definitely stated. It is held that by accepting such a subscription the promisee agrees on his part with the subscribers, that he will hold and appro- priate the funds subscribed in conformity with the terms and objects of the sub- scription, and thus mutual and independ- ent promises are made, which constitute a legal and sufficient consideration for each other. They are thus held to rest upon a well settled principle in respect to concurrent promises." Fictitious sub- scriptions, obtained for the purpose of in- fluencing other subscribers, render void those that are made afterwards. Middle- bury College v. Loomis, 1 Vt. 189.] 52 REQUISITES OF A SIMPLE CONTRACT: ner. (e) But, where the bare promise of the plaintiff is the only consideration for the promise of the defendant, it must appear that the promises were made by the parties mutually and concur- rently. (/) And here, too, we must again advert to the principle before explained, that, in the case of mutual promises, there must be a reciprocity of obligation ; so that, if the fact of the promise of one party not being binding on him would leave the other party without a consideration for his promise, the engagement of that other party is not obligatory. (. Morse, 14 John. 468. So where A. owed B., being unmarried, $10 for her services, and she owed D. $6.51 , A. promised in consideru- (i) See note to Wennall v. Adney, 3 B. & P. 247, 249 ; per Lord Tenterden, Littlefield v. Shee, 2 B. & Ad. 811, 813; and per Cur. Monkman u. Shfcpherdson, 11 A. & E.4U, 415. THE CONSIDERATION. 53 present day being, that a mere moral consideration cannot support an assumpsit. (F) &H The first exposition of the fallacy of the doctrine, that a mere moral obligation is a sufficient consideration to support an Notasufflcient express assumpsit, appears to have been given in a note consideration. to the case of Wennall v. Adney, above referred to ; in which on a review of all the decisions and dicta which were thought by the learned reporters to bear on the question, the conclusion to which they came was this : " That an express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law ; but can give no original right of action, if the obligation on which it is founded could never have been enforced at law, though not barred by any legal maxim or statute provision." (V) The accuracy of this conclusion has since been most fully recognized ; (m) and, in accordance with the law as therein stated, it has been held, that a pecuniary benefit voluntarily conferred by one person upon, and accepted by another, (k) Beaumont v. Reeve, 8 Q. B. 483 ; 486, 487; and per Parke B. Jennings v. Brown, 9 M. & W. 496, 501. [In Cook v. Bradley, 7 Conn. 57, Daggett J. after a careful examination of the authorities, says : " On the whole, I am not satisfied that a case can be found in the English books, in which it has been held, that a. moral obligation is a sufficient considera- tion for an express promise, though there are many to the contrary ; but that it is limited in its application to cases where a good and valuable consideration has once existed, as laid down by the supreme court of Massachusetts." Mills o. Wyman, 3 Pick. 207. See Smith v. Ware, 13 John. 257, 289; Edwards v. Davis, 16 John. 281, 283, note ; Wennall v. Adney, 3 Bos. & Pul. 352. It may be deduced from the case of Cook v. Bradley, that a moral ob- ligation is available in those cases only, where a legal obligation has once existed, but which, at the time of the promise, was barred by some statute ; as the statute of limitations; or an act of insolvency; or where the promisor would have been liable on an implied promise, previous to the making of the express one, had it not been for some privilege or exemption by some positive rule of law. A son who was of full age and had ceased to be a member of his father's family, was suddenly taken sick among strangers, and being poor and in distress was relieved by the plaintiff, and afterwards the father wrote to the plaintiff, promising to pay him the expenses incur- red. It was held that this promise could not be enforced by an action. Mills v. Wyman, 3 Pick. 207 ; Cook v. Bradley, 7 Conn. 57 was similar. So, also, Loomis v. Newhall, 15 Pick. 150; Parker v. Carter, 4 Munf. 273; Hawley v. Earrar, 1 Vt. 420; Warren v. Whitney, 24 Maine, 561 ; Farnham v. O'Brien, 22 Maine, 475 ; Snevely v. Reed, 9 Watts, 396 ; Ehle v. Judson, 25 Wend. 97 ; Geer v. Archer, 2 Barb. 420 ; Nash v. Russell, 5 Barb. 556 ; Watkins v. Halstead, 2 Sandf. 311 ; Dodge v. Adams, 19 Pick, 429; McPher- son v. Rees, 2 Penn. 521. A promise by a grandfather to pay for services that have been rendered to his grandchild is not bind- ing. Elicott v. Peterson, 4 Md. 476, 492.] (/) 3 B. & P. 252. (m) Beaumont v. Reeve, 8 Q. B. 483, 487; Eastwood v. Kenyon, 11 A. & E. 438, 447. 54 REQUISITES OF A SIMPLE CONTRACT: is not such a consideration as will support an action on a subse- quent express promise by the latter to reimburse the former. («) And on the same principle it has been held, that a declaration, averring that the defendant had seduced and debauched the plain- tiff, and induced her to cohabit with him, whereby she had been injured in her character, and deprived of the means of procuring an honest livelihood ; that the two had agreed to discontinue the im- moral connection and live apart ; and that the defendant, as a com- pensation for the injury, and in consideration of the premises, under- took to pay the plaintiff a yearly sum for her maintenance, — which he had failed to do, — disclosed no legal consideration for the under- taking. (. tion for a new promise after the decease of Muggeridge all the circumstances which her husband. The same seems to be true showed that the money was in conscience of her express promises while married, due from the defendant, were correctly set being not voidable, but void. See Wat- forth in the declaration. It there appeared kins v. Halstead, 2 Sandf. 311 ; Eastwood upon the record, that the money was lent v. Kenyon, 11 Ad. & El. 438. Eor other tS her though paid to her son-in-law, cases which notice this subject, see Geer while she was a married woman ; and that v. Archer, 2 Barb. 420 ; Ehle v. Judson, 24 after her husband's death, she, knowing Wend. 97 ; Hatchell v. Odom, 2 Dev. & all the circumstances, promised that her ex- Bat. 302; Cook v. Bradley, 7 Conn. 57; ecutor should pay the sum due on the bond. Kennerly v. Martin, 8 Missou. 698 ; Waters I must also observe, that the doctrine, that v. Bean, 15 Geo. 360; Shepard v. Rhodes, amoral obligation is a sufficient considera- 7 R. I. 473 ; Viser v. Bertrand, 14 Ark. 267; tion for a subsequent promise, is one Wilson v. Burr, 25 Wend. 386 ; Goulding which should be received with some limita- v. Davidson, 26 N. Y. 604.] tion." (d) 2 Stark. 175. THE CONSIDERATION. 57 and Lord Ellenborough held, that the defendant's promise to in- demnify the plaintiff against C.'s claim was founded on a sufficient moral obligation to render it binding, although such promise was made by the defendant after he had received the money from the plaintiff. It is submitted, however, that, on examining this case, it will be found that it may be supported, without any reference whatever to the ground on which it appears to have been decided ; for, inasmuch as there was a claim by the defendant for a sum, as to part of which it was doubtful whether he or a third person was the party really entitled, it would seem that the payment of the whole of that sum by the plaintiff at the defendant's request, and his thereby exposing himself to the risk of an action at the suit of such third person, was a sufficient detriment to him, to form a good con- sideration for the defendant's promise. In like manner, those cases in which past seduction of, and co- habitation with the plaintiff, have been thought to afford a sufficient consideration for an express promise to pay money to her for her support, seem to have been decided on the ground of there being a moral obligation to redress, as far as possible, the injury inflicted, (e) But it is clear that these cases are no longer law. (/) The case of Cooper v. Martin (jf) has also been quoted in sup- port of the principle, that a mere moral consideration is sufficient. In that case the plaintiff married a widow, who had children by her former husband. The defendant was one of such children. Before the plaintiff married the widow she maintained these chil- dren ; and after her marriage with the plaintiff he maintained them. When the defendant came of age he promised the plaintiff to repay him the expense which he had incurred in maintaining him ; and the court held that such promise was founded on a sufficient con- sideration ; especially as the plaintiff was a man of small substance, and the children had a competent provision to receive when they came of age, — which was to accumulate for them in the mean time, — and he had made no application to chancery for an allowance out of the fund, as he might have done, the law not compelling him to maintain such children. This case, however, like most of the others which have been mentioned in connection with this subject, (e) Gibson v. Dickie, 3* M. & S. 463; (/) Beaumont v. Reeve, 8 Q. B. 487 Binnington v. Wallis, 4 B. & Aid. 650 ; (g) 4 East, 76. See Peake, Add. C. 79, Duhammel v. Pickering, 2 Stark. 94; 226. [Shenk v. Mingle, 13 Serg. & E. 29.] 58 REQUISITES OF A SIMPLE CONTRACT : will be found not to be inconsistent with the principle stated in the note to Wennall v. Adney. (K) And it seems, that, unless there be an express promise in such a case, the father-in-law cannot maintain an action ; at all events if the circumstances show that he originally intended to educate and bring up the child gratuitously. (J) 7th. It will be observed that, in all the preceding examples of Of gratuitous considerations, there was something more to support the promises. promise than a mere imperfect or vague duty. For, even in the cases in which a moral obligation has been, although erroneously, deemed a sufficient consideration for the defendant's promise, it will be found that he had received some benefit from the plaintiff; and that it was because justice required compensation at his hands, and nothing but the provision of some positive law had interposed to preclude a legal remedy for the recovery of a remu- neration for such benefit, that the fact of his having expressly prom- ised to do the plaintiff justice was held to bind him. (Je) Accordingly, it does not appear to have been ever contended, that every duty of imperfect obligation, the existence of Promises . J L . . n founded on which can be established by the principles of ethics, perfect obii- will form the consideration for a, promise which may be 1111 enforced by law. The duties of gratitude and kind- (h) See Eastwood v. Kenyon, 11 A. & St. 367. So though the release is given E. 438, 448. merely to make the party released a wit- (i) Pelley v. Rawlins, Peake Add. C. ness. Valentine v. Foster, 1 Met. 520. 220, cor. Lawrence J. When a deed is given of land described (h) See Wennall v. Adney, 3 B. & P. as of a, certain number of acres, which, 251, 252, note (a) ; [Dodge v. Adams, 19 upon being measured, is found to be less, Pick. 429 ; Mills v. Wyman, 3 Pick. 207 ; a promise by the grantor to pay back a Cook v. Bradley, 7 Conn. 57; M'Pherson proportional part of the price, will not v. Rees, 3 Pen. & W. 521 ; Smith v. sustain an action. Smith v. Ware, 13 Ware, 13 John. 250; Stafford v. Bacon, John. 259; Williams v. Hathaway, 19 25 Wend. 384 ; Warren v. Whitney, 24 Pick 387. But a debt discharged under Maine, 561 ; Earnham v. O'Brien, 22 an insolvent law is a good consideration Maine, 475. A promise to pay a, debt for a new promise. Scouton v. Eislord, voluntarily released, is not binding for 7 John. 36 ; Erwin v. Saunders, 1 Cowen, want of a legal consideration. Warren 249 ; Shippey v. Henderson, 14 John. v. Whitney, 24 Maine, 561; Shepard v. 178; Maxim v. Morse, 8 Mass. 127; Rhodes, 7 R. I. 474 ; Stafford v. Bacon, Turner v. Chrisman, 20 Ohio, 332 ; Trum- 25 Wend. 384; 1 Hill, 532; 2 Hill, 353; bull v. Tilton, 21 N. H. 128; Badger v. Montgomery u. Lampton, 3 Met. (Ky.) Gilmore, 23 N. H. 361 ; La Tourrette v. 519 ; Snevely v. Read, 9 Watts, 396 ; Price, 28 Miss. 702 ; McWillie v Kirkpat- Stearns v. Tappin, 5 Duer (N. Y.), 294. rick, 28 Miss. 802 ; Way v. Sperry, 6 Cush. But see Willing v. Peters, 12 Serg. & R. 241.] 177; Hemphill v. McClimans, 24 Penn. THE CONSIDERATION. 59 ness, for example, are allowed to be real and very extensive sources of moral obligation, but they cannot be regarded as affording any foundation for a legal responsibility ; and a declaration, stating that John had formerly lent a sum of money to Richard, which loan had been attended with very beneficial consequences, and that, John being now in indigent circumstances, Richard promised, in con- sideration thereof, to pay him 100Z. a year, would scarcely be ex- pected to stand the test of a demurrer; although the morality of the obligation would be supported by every principle of ethical reasoning. (7) In like manner, although natural love and affection may be a good consideration for a deed or grant, still it is clear law at the present day, that they do not form a sufficient consideration to sup- port an assumpsit, (wi) And so where, in an action on a promissory note against the ex- ecutor of the maker, it appeared that the note was made in favor of the plaintiff, then an infant aged nine years, by the testator, who was intimate with the father of the plaintiff, and who was in an imbecile state ; the court held that, although a consideration for the note might be presumed, still such presumption might be re- butted ; and that, as gratitude to the plaintiff's father, or affection for the plaintiff, was the only consideration proved, the plaintiff must fail, (n) So the education of a child by its parent is only a duty of im- perfect obligation ; and it seems, therefore, that a person cannot re- cover from the parent expenses incurred in educating his children, unless there be an express contract to that effect, or peculiar cir- cumstances from which a promise of repayment can be inferred, (0) And in like manner, although a father may become liable, if he do 1 any specific act from which it may be reasonably inferred that he has authorized his child to contract a debt ; yet the mere moral obli- (l) See Appendix to Pothier on Obliga- ever, Noy Max. 21. But it is doubtful tions, by Evans, vol. 2, p. 406. whether Noy does not allude to natural (m) Bret v. G. S. &Wife, Cro. El. 755; affection merely as a consideration to raise Lampleigh v. Braithwaite, Hob. 105 ; a use. He adds, that long acquaintance Harford v. Gardener, 2 Leon. 30 ; Best v. and great familiarity are pot a sufficient Jolly, 1 Sid. 38. See 2 Lev. 32 ; Gully v. consideration. Bishop of Exeter, 10 B. & C. 601, per (n) Holliday v. Atkinson, 5 B. & C. Bayley J. ; [Mahan v. Mahan, 7 B. Mon. 501. 579; Pennington v. Gittings, 2 Gill & J. (o) Hodges v. Hodges, Peake Add. C. 208 ; Duvall v. Wilson, 9 Barb. 487 ; 79, cor. Lord Kenyon. Mark v. Clark, 11 B. Mon. 44.] See, how- 60 REQUISITES OF A SIMPLE CONTRACT gation on the father to maintain his child cannot impose upon him any legal liability, (p) A gift of chattels is not good and binding unless it be by deed, or unless the thing which forms the subject of the gift be actually de- livered to the donee, ( m consideration of and as an incitement to their la,v - extraordinary exertions during a storm, or in any other (p) Shelton v. Springett, 11 C. B. 452 ; Mortimore v. Wright, 6 M. & W. 482, 487, 488. (q) "Ward v. Audland, 16 M. & W. 802, 871 ; Lunn v. Thornton, 1 C. B. 379, 381; Irons v. Smallpiece, 2 B. & Aid. 558 ; 2 Wms. Saund. 47 a; [Hanson u. Millett, 55 Maine, 184; Brown v. Brown, 23 Barb. 565 ; Hunter v. Hunter, 19 Barb. 631 ; (r) Shower v. Kick, 4 Exch. 478; [Dole v. Lincoln, 31 Maine, 422 ; Hunt- ington v. Gilmore, 14 Barb. 243.] (s) Monkman v. Shepherdson, 11 A. & E. 411. (0 See Parker v. Baylis, 2 B. & P. 73 ; [Callaghan o. Hallet, 1 Caines, 104 ; Smith v. Bartholomew, 1 Met. 278. H. purchased a quantity of tin in boxes for Adams v. Hayes, 2 Ired. (Law) 366 ; Sims one F. at his request, and delivered it to u. Sims, 2 Ala. 117 ; Withers v. Weaver, 10 Barr, 391 ; Carpenter v. Dodge, 20 Vt. 595; People p. Johnson, 14 111. 342; Hitch u. Davis, 3 Md. Ch. 266 ; Dole v. Lincoln, 31 Maine, 422 ; Allen v. Pole- reczky, 31 Maine, 338 ; Grover v. Grover, 24 Pick. 261 ; Marston v. Marston, 21 N. H. 491 ; Bean v. Jones, 8 N. H. 149; Noble o. Smith, 2 John. 52 ; Hunting- him in the same condition unopened ; afterwards, on opening the boxes, it was found that the tin was materially dam- aged, of which H. had reasonable notice, and thereupon promised F. to make him an equitable allowance therefore ; held, that such promise was void for want of consideration. Hawley v. Farrar, 1 Vt. 420. So an action will not lie for non- ton v. Gilmore, 14 Barb. 631. "A gift performance of a promise made without is strictly a contract." Hoar J. in At- consideration, though the promisee may torney General v. Merrimack Manuf'g Co. have sustained damage on account of the 14 Gray, 603. non-feasance. Thus, where A. & B. were THE CONSIDERATION. 61 emergency of the voyage, this promise is nudum pactum ; (w) the voluntary performance of an act which it was before legally in- cumbent on the party to perform, npt being, in law, a sufficient consideration, (w 1 ) And so it would be in any other case where the only considera- tion for the defendant's promise was the promise of the plaintiff to do, or his actually doing something, to do which he was previously bound, either to the defendant or to a third person, (x) And there- fore where two joint debtors had been taken in execution, and the plaintiff discharged one of them, it was held that, inasmuch as the other had a right to be discharged, the promise of a third person to pay the debt in order to obtain such discharge, was void for want of consideration. (?/) So the law does not, at least in general, allow compensation to a witness for loss of time in attending a trial upon subpoena; it being a duty imposed upon him by law to obey such subpoena ; and therefore, a promise to pay such remuneration, in consideration of the party's attendance, is not binding, (z) So joint owners of a vessel, and A. volun- wages, and they perform the rest of the tarily undertook to get her insured, but voyage with the diminished number of neglected to do so, and the vessel was hands, that promise is upon a good con- lost ; it was adjudged that B. could sus- sidcration and binding. Hartley v. Pon- tain no action against A. for his neglect, sonby, 7 El. & 131. 872.] Thorne v. Deas, 4 John. 84. But a factor (x) Per Byles J. Shadwell v. Shndwell, or commercial agent who is entitled to a 9 C. B. N. S. 159, 178. [The payment of commission would be liable for notexecut- a debt by a debtor is not a sufficient con- ing an order to insure. Thorne v. Deas, sideration to support a promise. Smith v. 4 John. 84. See Randolph v. Ware, 3 Bartholmew, 1 Met. 278. Payment of part Cranch, 503.] of a debt is not sufficient consideration for (><) See Harris v. Carter. 3 E. & B. 559 ; an agreement to extend the time for pay- Cluttcrbuck v. Coffin, 4 Scott N. R. 509 ; ment of the residue. Hunt v. Bloomer, 5 Harrison v. Watson, Peake, 72 ; Newman Ducr (N. Y.), 202.] v. Walters, 3 B. & P. 612 ; Stilk u. (y) Herring v. Dorell, 8 Dowl. 604. Myrick, 2 Camp. 317; [Bartlett v. Wy- Por other cases in which this rule is recog- man, 14 John, 266 ; 3 Kent, 185 ; Mesner nized, see per Parke B. Jackson v. Cob- v. Suffolk Bank, U. S. Dist. Ct. Boston, bin, 8 M. & W. 790, 797 ; and per Lord 1838; Smith v. Brookline, U.S. Dist. Abinger, Jones v. Waite, 7 Scott, 317, Ct. Boston, 8 Law Rep. 70; Hartley o. 331. Ponsonby, 10 Law Rep. (N. S.) 389; S. C. (2) Willis v. Peckham, 1 B. & B. 515 ; 7 El. & Bl. 872.] per Lord Tenterden C. J. in Collins v. (u 1 } [But where, by the desertion of Godefroy, 1 B. & Ad. 950, 956. [A prom- some of the seamen, the vessel became ise by a party to a ■ suit to save a witness short handed before the completion of the harmless as to a forfeiture for failing at a voyage, so that it would be unsafe for the former term to attend, on condition of his remainder to proceed on the voyage, and attending at the next term, was heid to be the master in order to induce them to per- without consideration and void. Sweany form the rest of the voyage, promises to v. Hunter, 1 Murph. 181.] pay them a sum in addition to their 62 REQUISITES OF A SIMPLE CONTRACT : it is clear that, where one man lays out money in consequence of some duty imposed on him by law, the law will not imply a promise on the part of another to reimburse him ; and accordingly it is held, that the law will not raise an implied promise on the part of a parish where a pauper is settled, to reimburse money laid out by another parish, in which he happened to be lying ill, in providing necessary medical attendance for him, — there being a legal obliga- tion to maintain the pauper in his illness in the parish where he was at the time, (a) But it has been held, that although a man has promised one per- son to do a certain thing, yet, if he afterwards promise another to do the same thing, and that other receives a benefit from the per- formance of such promise ; this is a good consideration for a promise by the latter. (J) And so a promise by the father of an illegitimate child, to pay a sum of money to the mother, if she will support the child, is good, because, by undertaking to support her bastard child absolutely, the mother assumes a larger responsibility than she is bound by law to do. (c) A promise to pay a debt already incurred bv a third person is not available, unless it be made on a new consideration, such Other C3.S6S of gratuitous as forbearance ; (rf) but if credit were originally given to the third person at the promiser's request, this might con- stitute a sufficient consideration for his subsequent guarantee. («) So a promise by a creditor to accept less than the full amount of his demand, or to give time for the payment of an existing debt, is void, (e 1 ) unless there be some new consideration such as an under- taking to give an additional or different security, (e 2 ) or to pay the (a) Atkins u. Ban-well, 2 East, 505. 166; Inman r. Griswold, 1 Cowen, 199; (6) Scotson v. Pegg, 6 H. & N. 295. Rose v. Hall, 26 Conn. 392 ; Makepeace v. (c) Smith v. Roche, 6 C. B. N. S. 223 ; Harvard College, 10 Pick. 301 ; Chapman and see Hicks v. Gregory, 8 C. B. 378; v. Phoenix, 4 Paige, 305 ; Bailey i. Day, Jennings <-. Brown, 9 M. & W. 496; 26 Maine, 88; White v. Jordan, 27 Crowhurst v. Laverack, 8 Exch. 208. Maine, 370 ; Little v. Hobbs, 34 Maine, (d) 1 Roll. Abr. 27, pi. 49 ; [Elliott v. 357 ; Perkins v. Lockwood, 100 Mass. Giese, 7 Harr. & J. 457 ; Leonard v. Vre- 249.] denburgh, 8 John. 29 ; Bailey v. Freeman, (e 2 ) [Colburn v. Gould, 1 N. H. 279; 4 John. 280. It is otherwise where the Brooks v. White, 2 Met. 283 ; Boyd v. undertaking is contemporaneous with the Hitchcock, 20 John. 76 ; Kellogg v. Rich- original debt. Leonard v. Vredenburgh, aids, 14 Wend. 116; Goodnow v. Smith, 8 John. 29 ; Tenny v. Prince, 4 Pick. 18 Pick. 414 ; Lee v. Oppenheimer, 32 387.] Maine, 253; Perkins v. Lockwood, 100 (e) See Fell on Merc. Guar. 36-40; Mass. 250; Harriman v. Harriman, 12 Lyon v. Lamb, there cited. Gray, 341.] (e 1 ) [See Seymour v. Minturn, 17 John. THE CONSIDERATION. 63 debt in a manner, or at a time more beneficial to the creditor, than that originally agreed upon ; (e 3 ) or unless an uncertain claim be reduced to a certainty ; or unless the creditor's engagement to take less than his demand, or to give time, be contained in a composition deed or agreement entered into by the debtor with his creditors generally. (/) In the latter case, it would be a fraud on the creditors, to sue the debtor for the remainder of the claim. So a party to a negotiable bill or note is not liable thereon to a creditor to whom he has indorsed it, if such creditor has lost the instrument ; (#) and, therefore, a promise by the former tcf pay it, will not render him liable, unless there be some new consideration for the same, such as an indemnity or the like. (A) So a promise to revive a security which is void in its creation, — e. g. a promise to pay the amount of a promissory note given to a creditor by an insolvent for the balance of his debt, to induce him to sign a composition deed — is a mere gratuitous promise, and therefore void, (i) And if A. have been guilty of a wrongful act or omission, which would render him liable in damages to B., and he promise to pay B. a sum of money as compensation ; this is a mere gratuitous promise, unless it be made in consideration of B. releasing his right of action for such damages. (k~) (c 3 ) [Brooks v. White, 2 Met. 238; Hinckley v. Arey, 27 Maine, 362; Bailey Spann v. Batzell, I Branch, 301 ; Branch v. Day, 26 Maine, 88.] Bank of Mobile u. James, 9 Ala. 949 ; (/) See post, tit. Accord and Satisfac- Merchants' Bank v. Davis, 3 Kelly, 112 ; tion, and Composition Deeds ; Philpot v. Rose v. Hull, 26 Conn. 392; Perkins v. Bryant, 4 Bing. 717 ; [Harriman v. Har- Lockwood, 100 Mass. 50. A creditor was riman, 12 Gray, 341. An agreement by a informed that his debtor contemplated tak- creditor with his debtor to accept a cer- ing the benefit of the bankrupt act of tain percentage of the debt in full satis- the United States, which was then in faction thereof, " provided that - no other orce. The prospect was that the divi- creditor shall receive more than the same dend would be small. To save himself per centage of his claim," is void for want from greater loss under bankrupt proceed- of consideration. Perkins v. Lockwood, ings, the creditor agreed to certain terms 100 Mass. 249. See Bemis v. Hoseley, 16 of composition offered by the debtor, Gray, 63.] which were to pay a less sum in money, in (g) Eamuz v. Crowe, 1 Exch. 167. full discharge of the whole debt. The less (A) Per Park J. Davis u. Dodd, 4 sum was received by the creditor. The Taunt. 602 ; Champion w.Terry, 7 Moore, debtor upon the agreement and payment 136 ; Hansard v. Robinson, 7 B. & C. 90. took no further steps to obtain relief under (i) Cockshott v. Bennett, 2 T. R. 763. the bankrupt law. It was held that the (k) See Smart v. Chell, 7 Dowl. 781, agreement upon which the money was 786. paid, was a good and valid consideration. 64 REQUISITES OF A SIMPLE CONTRACT : So where the plaintiff declared that the defendant, (who was sued in his individual character,) was liable, in his capacity of ex- ecutor, to pay a certain debt to the plaintiff; and then averred that, in consideration thereof, he personally promised payment ; the court held, that the declaration was bad, and arrested the judgment, no additional or new consideration being shown for the enlarged responsibility arising from the promise. (7) And upon the same principle, a declaration against the husband alone, on his promise to pay the debt of his wife, contracted before marriage, without show- ing any new consideration, was held to be insufficient, (m) The consideration should be coextensive with the promise, in order to support it. But a distinction is to be taken between the case of a mere gra- Effect of an tuitous promise, and that of a promise on the faith of done onlhe which one party is induced to do some act which, but faith of a f or sucn promise, he would not have done, (fm 1 ) And, gratuitous * v y ' promise. therefore, although if A. promise to buy a house for B., that is nothing ; yet, if A. promise to buy a house for B., but re- quests B. to enter into the contract of purchase in his own name, and B. does so ; it would seem that the law would imply a promise on the part of A., to reimburse B. any part of the purchase money which he may be called upon to pay. (n) 8th. The consideration must also be such as the plaintiff has the _ , . means of performing or causing to be performed ; and it Of impossi- , r . . P . ble consider- will, therefore, be insufficient if its performance be nat- urally impossible ; (o) as if the consideration be a prom- (/) Rann v. Hughes, 7 T. E. 350, note condition is void, but the bond is good. (a), [If a creditor of a testator give up If it be in part impossible, the condition liis security to the executor, upon his is void as to that part, but good as to the promise, to pay the debt, he having suffl- rest. Bro. Abr. tit. Faits, 318, pi. 37 ; eicnt assets ,foi- the purpose, this will be 5 Tin. Abr. 110, 111, Condition, (C. u sufficient consideration for the promise, a), (D. a); 1 Roll. Abr. 419; Co. Litt. Stebbins v. Smith, 4 Pick. 97.] 206 a, b; 2 Bl. Com. 340. A covenant (?«) Mitchenson y.Hewson, 7 T. R. 348. to do a thing which is, in the nature of it, {in') [See Barnes ». Perine, 9 Barb. 202.] impossible, is void. If a party covenant (») Crosbie v. M'Doual, 13 Ves. 148, by the same deed, to do certain things 158, 160; and see Skidmore v. Bradford, which are possible, and certain others L. R. 8 Eq. 134. which are impossible, the deed is void as (o) See per Lord Kenyon C. J. and to the latter and good as to the rest. Bro. Ashurst J. Nerot o. Wallace, 3 T. R. 17, Abr. tit. Faits, 318, pi. 37 ; Shcp. Touch. 22,23. If the condition of a bond be im- 164. But it has been suggested that such possible at the time of making it, such an objection would only affect the dam- THE CONSIDERATION. 65 ise, that A. shall go from Westminster to Rome in three hours. From such a consideration no benefit can be derived by the defend- ant ; and, therefore, upon such a consideration no contract can be made, nor any claim to damages supported. And a promise is not binding, if the consideration for making it be of such a nature that it was not, in law, in the power Legally im- of the promisee from whom such consideration moved, P ossll)e - to complete such consideration, and confer the full benefit meant to be derived therefrom. ( p) Where, therefore, the plaintiff, an at- torney, who was conducting a commission of bankrupt, having re- ceived a debt due to the bankrupt, undertook to pay the defendant, who was solicitor of the bankrupt, the surplus of the sum so re- ceived, should any remain after defraying certain charges incurred by the plaintiff, provided the defendant would pay him his costs for conducting the commission ; the court arrested the judgment, be- cause the plaintiff could not show on the record a contract which it was in his power legally to perform ; and the defendant's promise, therefore, was without consideration. (q~) So, where the plaintiff declared that he being bailiff to J. S.^ the defendant, in consideration that the plaintiff would discharge him of 201. due to J. S., promised to expend 40/. in repairing a barge of the plaintiff's ; verdict and judgment for the plaintiff, upon non assumpsit, were reversed, the consideration being illegal ; for the plaintiff cannot discharge a debt due to his master, (r) So, where the declaration was on a promise made by the defend- ant to the assignees of a bankrupt, when the latter was on his last examination, that in consideration that the assignees would forbear to have the bankrupt examined, and that the commissioners would desist from taking such examination, touching moneys alleged to have been received by the bankrupt, and not accounted for, he, the defendant, would pay such moneys to the assignees ; Lord Ken- von observed : " I do not say that this is nudum pactum ; but the ground on which I found my judgment is this, that every person who, in consideration of some advantage, either to himself or to an-es to be recovered in an action on the null the obligation contracted, subject to covenant, and would not avoid the cove- such obligation.'' Code Civil, book iii. nant itself. Shep. Touch, supra. "Every tit. 3, u. 4, ». 1. condition of a thing impossible is null, (/>) See Macgregor u. Dover & Deal and renders null the agreement which dc- Railroad Company, lt< Q. B. 618, 631. pends thereon. The condition of not do- {q) Haslam v. Sherwood, 10 Bing. 540. ing an impossible thing does not render (r) Harvey v. Gibbons, 2 Lev. 161. vol. i. 5 66 REQUISITES OF A SIMPLE CONTRACT: another, promises a benefit, must have the power of conferring that benefit up to the extent to which that benefit professes to go, and that not only in fact, but in law. Now the promise made to the assignees in this case, which was the consideration of the de- fendant's promise, it was not in their power to perform, because the commissioners had, nevertheless, a right to examine the bank- rupt ; and no collusion of the assignees could deprive the creditors of the right of examination which the commissioners would procure them." And Ashurst J. said : " In order to found a considera- tion for a promise, it is necessary that the party by whom the prom- ise is made should have the power of carrying it into effect ; and secondly, that the thing to be done should in itself be legal. Now, it seems to me, that the consideration for this promise is void, on both these grounds. The assignees have no right to control the discretion of the commissioners, and it would be criminal in .them to enter into such an agreement, because it is their duty to exam- ine the bankrupt fully, and the creditors may call on them to per- form it. And for the same reason the thing to be done is also illegal." (s) And the same rule applies to cases in which the imposibility does Eule where not manifestly exist, as in the instances already given, ance of "the" at tne ^™ e °^ entering into the contract, but where it consideration a pp ea rs subsequently thereto. And, therefore, if a man becomes lm- ri ^. J ' possible. contract to pay a sum of money, or to do any other act, in consideration that another has contracted to do certain things on his part ; and it turns out, before anything is done under the con- tract, that the latter was incapable of doing what he engaged to do, the contract is at an end. (J) But a promise is not void against the party who makes it, merely ^. . . because performance thereof is improbable, or diffi- Distinction 1 L when the cult, (i 1 ) To have this effect there must either be an is merely actual impossibility in fact ; or the law must forbid the thing to be done; or there must be a breach of moral duty involved in the doing of it ; (u) or the hardship of executing the agreement must amount to a degree of inconvenience and ab- surdity, so great as to afford judicial proof that such could not be (s) Nerot v. Wallace, 3 T. R. 17, 22, 23. (fl) Hulings v. Craig, Addis. 342 ; Gil- (t) Per Cur. Chanter v. Leese, 4 M. & pins v. Consequa, 1 Peters C. C. 91. "W. 295, 311. (u) Per Littledale J. Tuffnell v. Con- stable, 7 A. & E. 798, 805. THE CONSIDERATION. 67 the meaning of the parties, (a;) And, accordingly, if a party, ex- cept in one of these cases, lay a charge upon himself by his own contract, he is bound to perform the stipulated act, or pay damages for its non-performance. It is the duty of the contracting party in such cases, to provide against contingencies ; and he will be pre- sumed to have known, when he contracted, whether the completion of the duty he undertook was within his power, in fact ; or whether the law would permit a fulfilment of his contract. (y~) It is upon this principle that an engagement entered into upon a „ „ . . . Engagement sufficient consideration, for the performance of an act for the act of , i • i .,.,. , a third party. even by a third person, is binding, — wherever the act is such as he might do or omit legally, or without breach of duty, — even although the performance of such act depends entirely on the will of the latter, (z) Thus, a promise to procure the consent of a landlord to the assignment of a lease, is binding, (a) And where one of several parties in a firm agree to introduce the plain- tiff, a stranger, into it, it was held that the agreement was valid ; although the other parties were ignorant of its existence, and their assent was of course essential to the admission of the plaintiff. (6) 9th. We shall have occasion hereafter to show, that the effect of a partial illegality of consideration may be to avoid the . contract entirely. But this never happens where one of ations void several professed considerations for a promise is simply (x) Per Lord Eldon C. Pribble v. Adams D.Nichols, 19 Pick. 275 ; Paradine Boghurst, 1 Swanst. 309, 329. v. Jane, Aleyn, 26 ; Pollard v. Schaaffcr, (y) Per Litrledale J. Tuffnell v. Con- 1 Dallas, 210 ; Leavitt v. Fletcher, 10 stable, 7 A. & E. 798, 805 ; and see Blight Allen, 119; Kramer v. Cook, 7 Gray, v. Page, 3 B. & P. 296, note ; per Lord 550 ; Phillips v. Stevens, 16 Mass. 238 ; Kenyon C. J. Worsley v. Wood, 6 T. R. Bigelow v. Collamore, 5 Gush. 231 ; Davis 718, 719; [SchoolDistrictNo.lv. Dau- v. Smith, 15 Missou. 467; Niedelet v. chy, 25 Conn. 530,536. The law never Wales, 16 Missou. 214; Peterson v. Ed- creates or imposes upon any one a duty to monson, 5 Harring. 378 ; Allen v. Culver, 3 perform what God forbids or what he Denio, 294 ; Linn v. Boss, 10 Ohio, 412; renders impossible of performance ; but it Peck v. Ledwidge, 25 111. 112 ; Dermott v. allows people to enter into contracts as Jones, 2 Wallace, 7, 8.] A condition to a they please, provided they do not violate bond, &c. that it will rain to-morrow or the law. Where a party engages uncon- that the Pope shall be at Westminster on ditionally, by express contract, to do an such a day, is good. Roll. Abr. 420 ; cit- act, performance is not excused by inevit- ing 22 Edw. 4, 26. able accident or other unforeseen contin- (z) Sclw. N. P. 54, note 7 ; 9th edit.; gency not within his control. Harmony [Mounsey v. Drake, 10 John. 29.] v. Bingham, 2 Kernan, 106 ; School Dis- (a) Lloyd v. Crisp, 5 Taunt. 249. trict No. 1 v. Dauchy, 25 Conn. 536 ; (6) M'Neill v. Reid, 9 Bing. 68. 68 REQUISITES OF A SIMPLE CONTRACT: frivolous and insufficient of itself, without being illegal, — the rule being, that the partial defect shall not annul the contract, provided there be an adequate consideration left to support it. (e) And in pleading, the insufficient consideration, — inasmuch as it forms, in fact, no part of the legal consideration for the agreement, — need not be stated. (JT) Thus, where an agreement purported on the face of it, to be made in consideration of a desire which had been expressed by the late husband of the plaintiff, and also of a money payment by the plaintiff herself; it was held that the latter only need be stated in the declaration, (e) And so it would be if the promise were in consideration, not only of the forbearance of a debt due from the defendant to the plaintiff, but also of the forbear- ance of another claim which could not be sustained. So where, in an action on the warranty of a horse, the consideration stated for the warranty was, that the plaintiff would purchase the horse for 63^. ; but the consideration proved was, that the plaintiff would pay that sum, and if the horse was lucky would give the defendant 51., or the buying of another horse ; it was held not to be a variance to omit the conditional promise, it being too vague to be binding. (/) But if there be an entire consideration for the defendant's promise, made up of several particulars, and one of these consists of an agreement by the defendant, which the statute of frauds requires to be in writing, and which, for want of such writing, is void, the whole consideration is void, and the promise cannot be supported, (jf) (c) King v. Sears, 2 Cr., M. & R. 48. mouth v. Thomas, 1 C. & M. 89 ; Lexing- [See Parish o. Stone, 14 Pick. 198; ton v. Clark, 2 Vent. 223; Chater v. Loomis ii. Newhall, 15 Pick. 159; Merrill Becket, 7 T. E. 201; Thomas ». Wil- v. Aden, 19 Vt. 505 ; Rand v. Mather, 11 liams, 10 B. & C. 664. See Wood v. Ben- Cush. 1.] son, 2 C. & J. 94 ; [Hite v. Wells, 17 111. (d) Thomas v., Thomas, 2 Q. B. 851; 88; Loomis v. Newhall, 15 Pick. 159; Vin. Abr. Actions of Assumpsit, (Y.); Irvine v. Stone, 6 Cush. 508; Andrews Com. Dig. Action, Assumpsit, (B. 13); v. Ives, 3 Conn. 368 ; Roby v. West, 4 N. B. N. P. 147 ; Bradburne v. Bradburne, H. 285 ; Crawford v. Morrell, 8 John. 253. Cro. El. 149 ; per Cur. in Tisdale's case, In a. suit for painter's work done on the lb. 758, 759; and in Coulson u. Carr, lb. defendant's house, it appeared that the 849; Crisp v. Gamel, Cro. Jac. 128; Best plaintiffs first contracted with a third v. Jolly, 1 Sid. 38 ; Pikard u. Cottell, party, who was building the house for the Yelv. 56. defendant, and worked for him a while, (e) Thomas v. Thomas, 2 Q. B. 851. when the third party failed, owing the (/) Guthing v. Lynn, 2 B. & Ad. 232. plaintiffs, and they refused to work any (g) Mechelen v. Wallace, 7 A. & E. 49 ; longer, and left off for a period, when the Head v. Baldrcy, 6 A. & E. 459 ; per Lit- defendant told them to go on with the tledale J. Mayfield v. Wadsley, 3 B. & work and he would pay them, or would C. 357, 365. See, also, Earl of Fal- see them paid for what they had done, as THE CONSIDERATION. 69 10th. Thus far as to the quality of the consideration which is necessary to support a simple contract ; let us advert, f the con- shortly, to the consideration regarded with reference to ^arfto '" the time of its performance. time - And as to time, a consideration is either, 1st, executed, or something done before the making of the defendant's promise ; 2dly, executory, or something to be done after such promise ; 3dly, concurrent, as in the case of mutual promises ; or, 4tlily, con- tinuing. (K) First. A post or executed consideration is not sufficient Executed to support an assumpsit unless such consideration was ^m^'by moved by the precedent request, either express or im- previous re- plied, of the party promising, (i) Therefore, where A.'s moved, servant was arrested for a trespass, and J. S., who knew A., with- out his knowledge bailed the servant, and afterwards A., for his friendship, promised to save him harmless ; it was held that the promise was void, because the bailing, which was the consideration, was the voluntary courtesy of J. S., and was past and executed before. (&) And a promise without any new consideration, to pay a debt already incurred by a third person, would fall within the same principle. (7) well as for what they should do. The 34 ; [Bulkley u. Landon, 2 Conn. 404 ; promise to pay for what had been done Comstock v. Smith, 7 John. 87 ; Chaffee being clearly within the statute of frauds, v. Thomas, 7 Cowen, 358 ; Lonsdale v. the whole contract was held to be invalid Brown, 4 Wash. C. C. 148 ; Livingston v. by the court of common pleas. But the Rogers, 1 Caines, 548 ; Hitchcock v. supreme court overruled this decision, and Litchfield, 1 Root, 206; Oakes v. Cush- held that, if the items affected by the ing, 24 Maine, 313 ; Chadwick v. Knox, statute are separable from the rest of the 31 N. H. 236 ; Hatch v. Purcell, 21 N. H. contract, the party entitled may recover 514 ; Parker v. Crane, 6 Wend. 647. An for the balance. Rand v. Mather, 11 entire promise, founded partly on a past Cush. 1, in which a contrary decision in and executed consideration, and partly on Loomis v. Newhall, above cited, was over- an executory consideration, is supported ruled. Robinson v. Green, 3 Met. 159; by the latter. Loomis v. Newhall, 15 Page v. Monks, 5 Gray, 492, 496 ; Wood Pick. 159 ; Andrews v. Ives, 3 Conn. 368 ; v. Benson, 2 Cr. & Jer. 94; Hite a. 16 John. 284, note; Yelv. 41 a, and Wells, 15 111. 88.] American cases there collected; Wiggins (A) See 1 Chit. PI. 6th edit. 295. u. Keizer, 6 Ind. 252 ; Metcalf Contr. 193- (i) See Eastwood v. Kenyon, 11 A. & 205.] B. 438, 451 ; Thornton v. Jenyns, 1 Scott (k) Hunt v. Bate, Dyer, 272 a ; Roll. N. R. 52, 74 ; per Parke B. King v. Sears, Abr. (Q.), pi. 2, 3 ; Sidenham and Worl- 2 Cr., M. & R. 48, 53 ; Lampleigh v. ington's case, 2 Leon. 224, 225. Braithwaite, Hob. 105 ; 1 Wms. Saund. (I) 1 Roll. Abr. 27, pi. 49. 264, n. (1); Streeter v. Horlock, 1 Bing. 70 EEQUISITES OF A SIMPLE CONTRACT : But where the plaintiffs act is moved or procured by the request of the party that gives the assumpsit, it will bind ; for though the promise follows, yet it is not naked, but couples itself with the precedent request and the merits of the party procured by that suit ; (m) as if, in the case last put, the third person had been credited at the instance of the defendant. («) Such request, moreover, must, in general, be laid in the declara- tion, and proved, (o) But there are some cases in which this is un- necessary. Thus, in a declaration for money lent, it is unnecessary to aver that the money was lent at the defendant's request, (p) So in an action for the price of goods sold and delivered by the plain- tiff to the defendant, it was not necessary — even before the passing of the 15 & 16 Vict. c. 76 — to aver that the defendant promised to pay such price in consideration of their having been sold and de- livered to him on request. (c[) And the reason in each of the above cases is, that although the consideration is executed, yet the act which is stated as the consideration cannot, from its nature, have been a gratuitous kindness, but imports a consideration per se. (r) To aver, therefore, that the consideration was moved at the defend- ant's request would be merely expressio eorum quce tacite insunt ; and, accordingly, it is needless. It is to be observed, further, that the request which is neces- Request, sary to support an executed consideration, if it have plied. not been made in express terms, will be implied in the following circumstances : First, where the consideration con- sists in the plaintiff having been compelled to do that, to which the defendant was legally compellable, (s) Secondly, where the (m) Lampleigh v. Braithwaite, Hob. Pownall v. Ferrand, 6 B. & C. 439 ; Exall 106; Com. Dig. Action upon the Case v. Partridge, 8 T. R. 308 ; Grissel v. Rob- upon Assumpsit, (B.), (B. 12); 1 Wins, inson, 3 Scott, 329 ; 1 Smith L. C. 70. Saund. 264, u, (1) ; Lord Suffieldu. Bruce, [On this principle depends the right of a 2 Stark. 1 76. surety who has been damnified to recover (n) Fell on Merc. Guar. 36-40. an indemnity from his principal. Tous- (o) See Eastwood u. Kenyon, 11 A. & saint v. Martinnant, 2 T. K. 100 ; Fisher v. E. 438, 451, and cases cited supra, n. (i). Fellows, 5 Esp. 171 ; Appleton v. Bascom, (/>) 15 & 16 Vict. e. 76, sched. (B.) ; 3 Met. 169, 171 ; Wood v Leland, 1 Met. Victors v. Davies, 12 M. & W. 758. 389 ; Gibbs v. Bryant, 1 Pick. 118 ; Hunt- (q) See note to Fisher v. Pyne, 1 M. & ington v. Todd, 3 Day, 465. On the same G. 265, 266 ; and observations of Parke B. ground depends the right of one surety or in Victors v. Davies, 12 M. & W. 758, 759. co-contractor, who has been obliged to pay (r) See note to Fisher v. Payne, 1 M. & the whole demand, or perform the whole G. 266. service stipulated for, to recover a pro- fs) Jeffrays u. Gurr, 2 B. & Ad. 883 ; portionable contribution from his fellow THE CONSIDERATION. 71 defendant lias adopted and enjoyed the benefit of the considera- tion : for here his subsequent assent amounts to a ratihabilio ; and such ratification may be relied on as evidence of a previous request, (t) And, thirdly, where the plaintiff voluntarily does that to which the defendant was legally compellable, and the defend- ant afterwards, in consideration thereof, expressly promises, (m) But it would seem, from what has been already stated on the subject of moral considerations, that if the plaintiff were to do an act to which the defendant was only morally compellable ; and the latter were afterwards, in consideration thereof, expressly to promise, the law would not imply that the act in question had been done at the defendant's request, so as to make his promise the foundation of an action. And wherever the defendant has derived no benefit from the plaintiff's act, a prior request must in general be expressly proved, (x) An executed consideration may be the groundwork or foundation, either of an express or an implied promise. But here .„, L 1 r r What express we must notice a very important rule in connection promise an . ■ .... iii i executed con- witn this subject, namely, that where an executed con- sideration will sideration is one from which the law will imply a supp011 promise, no express promise made in respect of that considera- tion can be enforced, if it differ from the promise which the law would imply from the same consideration, (jf) Thus, an executed consideration, whereon the law implies a promise to pay on re- surety or contractor. Cowell v. Edwards, that one does not abandon, but continues 2 Bos. & Pul. 268 ; Turner v. Davies, 2 to use his buildings, or other similar Esp. 478 ; Browne v. Lee, 6 B. & C. 697 ; property, after another has made repairs Deering v. Winchelsea, 2 Bos. & Pul. 270 ; or done other work on them, without the Wood v. Leland, 1 Met. 389.] wishes or request of the former, will not (t) Eastwood v. Kenyon, 11 A. & E. render him liable for the repairs or other 438, 451 ; 1 Smith L. C. supra; [Tindal work. See per Tenney J. in Davis v. C. J. in 1 Fishmongers' Co. v. Robertson, Bradford, 24 Maine, 349, 351.] 5 M. & Gr. 192; Doty v. Wilson, 14 John. («) Wing v. Mill, 1 B. & Ad. 104; 378; Cornell y. Vanoutsdulen, 4 Barr, Paynter u. Williams, 1 C. & M. 818; 364. See Outfield v. Warning, 14 John. Selw. N. P. 57, n. 11, 8th edit. ; 1 Smith 188; Hicks v. Burnham, 10 John. 243. L. C. supra. If any one accepts or knowingly avails (x) See Richardson v. Hall, 1 B. & B. himself of the benefit of services done for 50 ; Naishw. Tatlock, 2 H. Bl. 319. him without his authority or request, he (y) Per Tindal C. J. Kaye v. Dutton, 7 shall be held to pay a reasonable compen- M. & G. 807, 815 ; Roscorla v. Thomas, 3 sation for them. Mellen C. J. in Abbott Q. B. 234 ; Jackson v. Cobbin, 8 M. & v. Herrnon, 7 Greenl. 118; Hayden a. Mad- W. 790; Hopkins v. Logan, 5 M. & W. ison, 7 Greenl. 76. But the mere fact 241 ; Lattimore v. Gerrard, 1 Exch. 809. I '1 REQUISITES OF A SIMPLE CONTRACT : quest, — as upon an account stated, — is not sufficient to support a promise to pay at a future day. (z) So, the bare relationship of landlord and tenant is not a sufficient consideration, to support a promise that the defendant had power to let the premises to the plaintiff, without restriction as to the purpose for which the same should be used, (a) And where the declaration was, that in consideration that the plaintiff, at the request of the defendant, had bought a horse 6f the defendant at a certain price, the de- fendant promised that the horse was free from vice : it was held, on motion in arrest of judgment, that the executed consideration, though laid with a request, neither raised by implication of law the promise alleged, nor would support such promise presuming it to have been express. (&) In cases such as these, the con- sideration would appear to be exhausted by the promise which the law implies from the very execution of it : and, consequently, any promise made afterwards must be nudum pactum, there re- maining no consideration to support it. (e) It is said, however, that there are cases in which a considera- tion which is insufficient to raise an implied promise, will, never- theless, support an express one. These are cases of voidable contracts subsequently ratified ; of debts barred by operations of law, subsequently revived ; and of equitable and moral obligations which, but for some rule of law, would of themselves have been sufficient to raise an implied promise. (jP) And so it is said, that there are cases in which the party suing, has suffered a loss or conferred a benefit on the defendant at his request, under cir- cumstances which would not raise any implied promise, but in which the act done at the request of the party charged is held notwithstanding to be a sufficient consideration to render bind- ing a promise afterwards made by him in respect of the act so done, (e) Secondly. An executory consideration generally constitutes a condition precedent, to be performed by the plaintiff before his right of action accrues ; and the fact of such (c) Hopkins v. Logan, 5 M. & W. 241. (d) Per Cur. Roscorlan. Thomas, 3 Q. (a) Jackson v. Cobbin, 8M.4W. 790, B. 234, 237. 795. (e) Per Tindal C. J. Kayeu. Dutton, (b) Roscorlau. Thomas, 3 Q. B. 234. 7 M. & G. 807, 816. (c) Per Tindal C. J. Kaye r. Dutton, 7 M. & G. 807, 816., THE CONSIDERATION. 73 performance must be averred in the declaration, otherwise it will be bad in substance. (/) Thirdly. A concurrent consideration arises in the case of mu- tual promises, — a promise for a promise being, as we „ ! i . , . , Concurrent. have seen, a good consideration, (/*) In the case of concurrent considerations, the plaintiffs promise is executed, but the thing to be performed by him is executory. Hence, although the acts to be done by the plaintiff are not con- ditions precedent, but concurrent with those to be done by the defendant, yet he cannot maintain an action without showing per- formance of, or an offer to perform his part. It is sufficient, how- ever, for the plaintiff in such a case to aver readiness and willing- ness to perform. (#) Fourthly. A continuing consideration, being one in part exe- cuted, but which still continues, is also in many cases sufficient to support a promise ; (K) e. g. in considera- tion that the defendant had become and was the plaintiffs tenant, he undertook to manage the farm in a husband-like manner ; (i) or, in consideration that the lessee then in possession had occupied the land and paid his rent, to save him harmless against all per- sons for his occupation, " because his occupation and prompt pay- ment of the rent is a continuing consideration." (&) So, marriage is a continuing consideration. (I) So, the payment of money for (/) 1 Wms. Saund. 320; and see Gra- are mutual, and one is a consideration for ham v. Gibson, 4 Exch. 768. As to the the other; although there was a condition mode of averring performance of condi- annexed to the promise of one of the par- tions precedent, see 15 & 16 Vict. c. 76, s. ties, and the other was unconditional. 57. Briggs o. Tillotson, 8 John. (2d ed.) 235. (f y ) Mutual promises are simultaneous ; See Woods v. Rice, 4 Met. 481.] and they must be as alleged in pleading; (g) Giles ». Giles, 9 Q. B. 164, 174; thus, if the allegation be, that in consid- Waterhouse v. Skinner, 2 B. & P. 447 ; 1 eration of the plaintiff's promise, the de- Wms. Saund. 320 d, n. (5). fendant, afterwards, to wit, on the same day (A) See Mattock v. Kingslake, 8 A. & promised, it is bad, and the promise a E. 795. nudum pactum; although the plaintiff's (i) Powley v. Walker, 5 T. B. 373; promise be laid to have been at the request Leigh v. Hewitt, 4 East, 154. of the defendant. Livingston v. Rogers, (k) Pearle v. Unger, Cro. Eliz. 94 ; S. 1 Caines, 583. See Tucker v. Woods, 12 C. 1 Leon. 102; Bac. Abr. Assumpsit, John. 190; Keep v. Goodrich, 12 John. (D.); Com. Dig. Action upon the Case 297. Where A. and B. who were com- upon Assumpsit, (B. 12). See Adams v. petitors for the bounty or premium for the Dansey, 6 Bing. 506. best manufactured cloth, agreed that the (I) Bac. Abr. Assumpsit, (D.); Marsh successful competitor should pay one half v. Rainsford, 2 Leon. 112 ; Sidenham and of the bounty to the other, the promises Worlington's case, lb. 224. 74 REQUISITES OF A SIMPLE CONTRACT : the defendant, and the having obtained a release for him, amount to a good continuing consideration for his promise, (rn) And where the plaintiff declared that, in consideration he had bought three parcels of land on such a day, the defendant afterwards promised to make him a sufficient assurance : the consideration was adjudged not to be absolutely past, for the assurance was the substance of the sale, (n) But a mere tenancy from year to year is not such a continuing consideration as will support a promise, after the tenancy commenced, to repair substantially, or to do any other act, the obligation to do which does not by law attach upon such a tenancy. And, therefore, a declaration that, in con- sideration that the defendant had become, and was, tenant to the plaintiff of a farm, the defendant undertook to make a certain quan- tity of fallow, to spend 501. worth of manure every year, and to keep the buildings in repair, was held bad on general demurrer ; these obligations not arising out of the bare relations of landlord and tenant, (o) And the ordinary case of a promise in respect of an existing debt, or other legal liability before incurred by, and then binding on, the party promising, is another illustration of the rule as to the suf- ficiency of a continuing consideration, (jp) 3. Formerly the cases were contradictory upon the question, Of the plain- whether a person can sue upon a promise, even though tiff being a [^ fo e professedly for his benefit, where he is an entire stranger to the L J ' consideration, stranger to the consideration ; that is, where he has neither taken any trouble or charge upon himself, nor conferred any benefit on the promiser ; but such trouble has been sustained, or advantage conferred, by a third person. But although, if the actual promisee be a mere agent for the person to be benefited, the latter may sue upon the agreement notwithstanding he was not known at the time to be interested therein ; (c[) yet it is now clearly settled, that a mere stranger to the consideration cannot enforce performance of the contract, by an action thereon in his own name, (m) Webb v. Russell, 2 Keb. 99. 1 Leon. 168; [Hunt ». Bloomer, 5 Duer \n) Warcop v. Morse, Cro. El. 138. (N. Y.), 202.] (o) Brown v. Crump, 1 Marsh. 567; (q) See Phelps a. Prothero, 16 C. B. Horsefall v. Mather, Holt N. P. B. 7. 370; Scrimshire u. Alderton, Str. 1182; (p) 2 Steph. Com. 114; Hodge v. Va- Coppin v. "Walker, 7 Taunt. 237; Morris vasor, 1 Roll. R. 414. See Lee v. Maddox, v. Cleasby, 1 M. & S. 579, 581 ; Thornby v. Lacy, 6 lb. 185. THE CONSIDERATION. 75 although he be the party avowedly intended to be benefited there- by, (r) Thus, in Crowe v. Rogers, (s) where the plaintiff declared, that, Hardy being indebted to him in 70?., it was agreed between Hardy and the defendant, that the defendant should pay the money to the plaintiff, and that Hardy should make the defendant a title to a house, and that Hardy was ready to do so ; and in consideration thereof the defendant promised to pay the plaintiff: the court, " without much debate, held that the plaintiff was a stranger to the consideration and gave judgment for the defendant." To the same effect is the case of Bourne v. Mason, (f) where, although the declaration showed a promise by the defendant for the benefit of the plaintiff, yet the court, on motion, arrested the judgment, on the ground that the plaintiff was a mere stranger to the consideration. And the principle of these cases was recognized by the court in the modern case of Price v. Easton ; (u) in which it appeared that one W. P., being indebted to the plaintiff, had agreed with the defend- ant to do work for him, and that the defendant had agreed to retain the price of s,uch work for the plaintiff; and the court, on the authority of Crowe v. Rogers, arrested the judgment, upon the ground that, although the declaration averred that the defendant agreed to pay the plaintiff, it could not be collected therefrom that the defendant made any such agreement with the plaintiff, or that the three parties were jointly privy and assenting to the arrange- ment. And all the more recent authorities support this decis- ion, (x) Indeed, in one case, the court of exchequer expressed an (r) Per Wightman J. Tweddle v. At- 6 Watts, 394; Warren v. Batchelder, 15 kinson, 1 B. & S. 393, 398 ; per Parke B. N. H. 129 ; Butterfield v. Hartshorn, 7 N. Jones v. Robinson, 1 Exch. 454, 456; 2 H. 345; Treaty. Stanton, 14 Conn. 445; Wms. Saund. 137 d; and the eases col- Sailly v. Cleveland, 10 Wend. 156; Ham- lected in 1 Vin. Abr. 333-337, Actions of mondon Parties, S-l 5 ; Blymire v. Boistle, Assumpsit, (Z). [The general rule is, that 6 Watts, 182; Hubbertw. Borden, 6 Whart. aplaintiffinan action on a simple contract 79, 94; Dow v. Clark, 7 Gray, 200, 201.] must be the person from whom the con- (s) Str. 592. sideration of the contract actually moved, (() 1 Vent. 6. and that a stranger to the consideration («) 4 B. & Ad. 433. cannot sue on the contract. There must (x) Tweddle v. Atkinson, 1 B. & S. 393. be a privity of contract between the And see Hybart v. Parker, 4 C. B. N. S. plaintiff and defendant, in order to render 209 ; Robertson v. Wait, 8 Exch. 299 ; the defendant liable to an action, by the Jones v. Robinson, 1 Exch. 454 ; per Pat- plaintiff, on the contract. Metcalf J. in teson J. Thomas v. Thomas, 2 Q. B. Mellen u. Whipple, 1 Gray, 321 ; Ross u. 851, 859 ; Lilly v. Hays, 5 A. & E. 548; 2 Milne, 12 Leigh, 204 ; Morrison v. Beckey, Wms. Saund. 137 f; 2 Steph. Com. 115 ; 76 REQUISITES OF A SIMPLE CONTRACT : opinion, that where there was a contract with several parties, founded on a consideration to part of which each was a conducing party, [Mellen v. Whipple, 1 Gray, 317.] There are, however, some old cases and dicta which seem to support a contrary doctrine. Starkie v. Milne, 1 Eoll. Abr. Action sur Case, 32, pi. 13 ; Com. Dig. Action upon the Case upon Assumpsit, (B. 15) ; Dis- bourne v. Denabie, 1 Roll. Abr. 30, pi. 5 ; 1 Vin. Abr. 333, pi. 5 ; between Oldham and Bateman, 1 Vin. Abr. 334, 335 ; But- ton u. Poole, 1 Vent. 318, 332 ; S. C. in 2 Lev. 210, Sir T. Ray, 302, and Sir T. Jones, 102 ; recognized by Lord Mansfield, in Cowp. 433, and by Borough J. in 5 Moore, 31, 32 : per Buller J. Marching- ton v. Vernon, 1 B. & P. 101, n. (c) ; per Lord Alvanley C. J. in The Fellmongers' Company v. Davies, ] B. 4 P. 102 ; and in Pigott v. Thompson, 3 B. & P. 149. [There is a striking conflict among the decisions upon this subject in the Ameri- can courts, caused, doubtless, in a great measure, by their attempting to follow the fluctuating and divided course of the Eng- lish decisions, and by adopting what, from time to time was supposed to be the doc- trine of those decisions. The general ten- dency of American decisions is to support the doctrine of the " old cases and dicta " cited above in this note. Conformably to this view, it has been held in many Amer- ican cases, that if one person makes » promise to another, for the benefit of a third, such third person may maintain an action upon the promise, though the con- sideration does not move from him. See Barker v. Bucklin, 2 Denio, 45 ; Scher- merhorn v. Vanderheyden, 1 John. 140; Gold v. Philips, 10 John. 412; Cumber- land v. Codrington, 3 John. Ch. 254 ; Par- ley v. Cleveland, 4 Cowen, 482 ; Ellwood u. Monk, 5 Wend. 2.35 ; Arnold v. Ly- man, 17 Mass. 400; Hall v. Marston, 17 Mass. 575 ; Brewer v. Dyer, 7 Cush. 337 ; Perry v. Swasey, 12 Cush. 40; Carnegie v. Morrison, 2 Met. 381 ; Fitch «. Chand- ler, 4 Cush. 254; Mellen t>. Whipple, 1 Gray, 317 ; Robb v. Mudge, 14 Gray, 538 ; Crocker v. Higgins, 7 Conn. 347 ; Parker C. J. in Cabot u. Haskins, 3 Pick. 91 ; Hind a. Holdship, 2 Watts, 104 ; Boha- nan v. Pope, 42 Maine, 93 ; Hinckley «. Fowler, 15 Maine, 285; Felton v. Dick- inson, 10 Mass. 287 ; Delaware & Hudson Canal Co. u. Westchester Co. Bank, 4 Denio, 97 ; Beers v. Robinson, 9 Barr, 229 ; Fleming v. Alter, 7 Serg. & R. 295 ; Millard u. Baldwin, 3 Gray, 486 ; Weston v. Barker, 12 John. 276 ; Lawrence v. Fox, 20 N. Y. 268 ; Keller v. Rhoades, 39 Penn. St. 513; Draughan v. Bunting, 9 Ired. 10 ; Brown v. O'Brien, 1 Richardson, 268 ; Steman v. Harrison, 42 Penn. St. 49. In Bohanan v. Pope, above cited, A. con- tracted to haul logs for B., who agreed to pay A.'s men. D. worked for A. in get- ing the lumber into the stream, and it was held that D. might recover for his labor of either A. or B. ; and it was also held that D., having elected to look to A., and by suit having recovered a part of his pay of him, he could not afterwards maintain an action against B., to recover pay for the same labor. The two remedies are not concurrent but elective. This doctrine, that the party for whose benefit an un- sealed promise is made, may maintain an action thereon, though it is made to a third person, has lately received the care- ful attention of the supreme court of Massachusetts, in the case of Mellen v. Whipple, 1 Gray, 317, and the cases which support it were there treated by Mr. Jus- tice Metcalf as founded on a maxim, ex- pressing rather an exception to the general rule than the rule itself. And, in Dow v. Clark, 7 Gray, 201, the same learned judge speaks of the doctrine as anoma- lous, and to be applied to no cases but those coming within the classes specified in Mellen v. Whipple. See Millard u. Baldwin, 3 Gray, 486 ; Field v. Crawford, 6 Gray, 117. The subject is also discussed by Judge Metcalf in his work on Con- tracts, pp. 205-211.] THE CONSIDERATION. 77 the action should be by all, on the promise made to all, although only one was to receive the money, (j/) Where a consideration moves from two, in which each has a separate interest, that will support a promise made to Consideration 1 L ' moving from One. (2) several. And if money be sent to defendant, by a debtor of plaintiff, and and he admits to hold it for plaintiffs use, and promises Action for to pay him, there is a sufficient consideration moving money had from the plaintiff to support an action for money had and received, (a) In case of deeds and other specialties, inter partes, it is clear that, in general, the action must be brought by and in the Rule as to name of a person who is a party to the instrument ; and deeds- that a third person, a stranger to the deed, cannot sue thereon, although the covenant be made expressly for his advantage. (5) And this, it is said, is a positive rule of law, and not merely a rule of construction which must yield to the expressed intention of the parties, (c) But where A., by bond, acknowledged himself to be bound to B. (y) Chanter v. Leese, 4 M. & W. 295, 312. (2) Jones v. Kobinson, 1 Exch. 454. [A promise to three upon a consideration moving from them and a fourth person, will support an action brought by the three. Cabot v. Haskins, 3 Pick. 83. See Farron v. Turner, 2 Marsh. 496 ; Crocker v. Higgins, 7 Conn. 347 ; Miller v. Drake, 1 Caines, 45.] (a) Lilly v. Hays, 5 A. & E. 548. [See Trustees of Harvard College v. Pace, 15 Geo. 486 ; Ephraims v. Murdock,7 Blackf. 10. Generally in the United States, how- ever, it has been held that when a principal puts money or other property into an agent's hands, to be appropriated for a third person's benefit, and the agent thereupon promises the principal so to appropriate it, the third person may maintain an ac- tion against the agent, without any pre- vious communication with him. It has also been held that where money was re- mitted to an agent, to be paid by him to a third person, the agent was amenable to such person, in an action for money had and received, though he never consented so to pay it. Hall v. Marston, 1 7 Mass. 575; Frost v. Gage, 1 Allen. 262; Arnold v. Lyman, 17 Mass. 400; Carnegie v. Morrison, 2 Met. 382 ; Mellen v. Whipple, 1 Gray, 317; Dow v. Clark, 7 Gray, 198, and other cases above cited ; Metcalf Contr. 209, 210.] (b) Lord Southampton v. Brown, 6 B. & C. 718; Offleyi;. Ward, 1 Lev. 235; [Johnson v. Foster, 12 Met. 167 ; Sanders v. Filley, 12 Pick. 554; Millard a. Bald- win, 3 Gray, 484; Hinkley v. Fowler, 15 Maine, 285 ; Sandford v. Sandford, 2 Day, 559 ; Northampton v. Elwell, 4 Gray, 81.] The action on a policy of marine insur- ance may be brought, either in the name of the broker who effected it, or in the name of the party interested. Sunderland Marine Insurance Company v. Kearney, 16 Q. B. 925, 939 ; [Lazarus u. Common- wealth Ins. Co. 5 Pick. 76 ; Eider v. Ocean Ins. Co. 20 Pick. 259.] (c) Per Martin B. Chesterfield &c. Colliery Company v. Hawkins, 3 H. & C. 767, 693. 78 REQUISITES OF A SIMPLE CONTRACT : in 100Z., to be paid to B. or C. ; it was held that B. might sue A. on the bond. () Upon this principle, an action in form ex contractu, will lie on the judgment of a court of record in this country ; (w~) or on a final order of the judicial committee of the privy council, for payment of costs ; (x) or for money due upon a judgment obtained in a foreign court ; (y) or upon an (r) Lamb v. Bunce, 4M.4S. 275. See (w) 3 Bl. Com. 160. But an action Tomlinson v. Benthall, 5 B. & C. 739; will not lie on a, judgment obtained in a [Gurley v. Allen, 5 Cowen, 644 ; Flower v. county court. Berkeley v. Elderkin, 1 E. Allen, 5 Cowen, 654.] & B. 805 ; 22 L. J. Q. B. 281 ; Austin v. (s) 3 C.&P.36. See Hodges v. Hodges, Mills, 9 Exch. 288. Peake Add. C. 79. ( x ) Hutchinson v. Gillespie, 11 Exch. (t) See per Lord Abinger, Mortimore 798. v. Wright, 6 M. & W. 482, 485. {y) Walker v. Witter, Dougl. 1, 4 ; Hall (u) Tulk v. Moxhay, 2 Ph. 774; Wil- v. Odber, 11 East, 118, 124; Douglas v. son v. Hart, L. R. 1 Ch. Ap. 463. Eorrest, 4 Bing. 686. But an action will (v) See per Parke B. Williams v. not lie on such a judgment, if it be shown Jones 13 M. & W. 628, 633. that the defendant had no notice or knowl- 88 IMPLIED CONTRACTS. Irish judgment ; (2) or a Scotch decreet ; (a) or on a Jamaica judgment. (F) So an action is maintainable, at law, on a decree of a colonial court of equity, which simply ascertains a balance, and orders payment thereof by the defendant to the plaintiff; (c) or to recover money due on the decree of a colonial court, for payment of a balance due on a partnership account, (d) But it is doubtful whether an action at law can be maintained on a decree of the high court of chancery, for payment of a specific sum of money, founded on equitable considerations only. («) And such an action is not maintainable on the mere interlocutory order of a court of law ; (/) although it may be maintained on a final order, made in a collateral or interlocutory proceeding, the original suit being still undetermined. (#) So it has been held, that in cases where words of recital or refer- From words ence manifest a clear intention that the parties should do '"" ' ' n certain acts, the court will, from these, infer an agree- ment by them to do such acts. (K) edge of the suit, until after the judgment was given ; or that the judgment was obtained by fraud ; or that the court which pronounced it had no jurisdic- tion ; or that there is error on the face of the judgment ; i. e. error sufficient to show that the court has come to an erroneous conclusion of law or fact; or that the judgment is contrary to the law which it professed to administer. See per Romilly M. R. Reimers v. Druce, 26 L. J. C. 196, 198. See, also, Schibsby v. Westenholz, L. Rep. 6 Q. B. 155; Bu- chanan v. Rucker, 9 East, 192; Becquet v. M'Carthy, 2 B. & Ad. 951 ; Novelli v. Rossi, 2 B. & Ad. 757. But the latter part of Lord Romilly's dictum in Reimers v. Druce, must be received with some qualification ; it having been recently held that it is no bar to an action on the judg- ment of a foreign court, in personam, that it appears on the face thereof, that the for- eign tribunal has put a construction on an English contract, which was erroneous ac- cording to English law. Godard v. Gray, L. R. 6 Q. B. 139. [See Houlditch v. Donegall, 2 CI. & Fin. (Am. ed.) 470, note (2), and cases cited; Dow v. Lipp- mann, 5 CI. & Fin. (Am. ed,) 1, note (4) ; Ricardo v. Garcias, 12 CI. & Ein. 368 ; Bigelow Estoppel, 184-195.] (z) Harris v. Saunders, 4 B. & C. 411. (a) Russell v. Smyth, 9 M. & W. 810 ; Douglas v. Forrest, 4 Bing. 686. (6) 2 Chit. Pi. 6th edit. 146. (c) Henderson v. Henderson, 2 Q. B. 288. (rf) Henley v. Soper, 8 B & C. 16 ; Sad- ler v. Robins, 1 Camp. 253. (e) See Henderson v. Henderson, 6 Q. B. 288, 299 ; Carpenter v. Thornton, 3 B. &'Ald. 52; Henley v. Soper, 8 B. & C. 16, 20. (/) Patrick v. Shedden, 2 E. & B. 14 ; 22 L. J. Q. B. 283 ; Emerson v. Lashley, 3 H. Bl. 248 ; Fry v. Malcolm, 4 Taunt. 705; Carpenter v. Thornton, 3 B. & Aid. 56. (g) Hutchinson v. Gillespie, 11 Exch. 798. ih) See Knight v. Gravesend &c. Waterworks Company, 2 H. & N. 6. [Where one makes a grant to another, which is accepted, and by the instrument something is to be done by the grantee, the grantor may compel performance. See Huff v. Nickerson, 27 Maine, 106; Goodwin v. Gilbert, 9 Mass. 510 ; Rogers IMPLIED CONTEACTS. 89 And where a party enters into an agreement, which can only take effect by the continuance of a certain existing state Fromcircum- of circumstances, there is an implied engagement on his jf"^^!!" part that he will not, of his own mere motion, do any- the contract. thing to put an end to that state of circumstances under which alone the agreement can be operative, (i) But this principle will not be held to the extent that, where parties have expressly agreed to do certain acts, they will be Not always taken to have impliedly agreed for every act, convenient ^fpress'coa- or even necessary for the perfect performance of their tracts. express agreements. (A;) And so, although there be an absolute agreement whereby a party is bound to do a certain act, which is incidental to or can only be done after the doing of another act ; this is not to be taken as showing a clear intention, that such party means to bind himself to do that principal act, to which the thing which he has already agreed to do was incidental. (J) And with regard to all the above cases, this principle must be kept in view, namely, that promises in law exist only in implied con- the absence of express promises : expressum facit cessare onlv in tne taciturn, (m) A party, therefore, cannot be bound by "^pleMcoii- an implied contract, when he has made an express con- tracts. tract as to the same subject-matter, even although the latter be avoided by fraud. He may, it is true, repudiate the contract en- tirely on this ground ; but, if he sues the other party in contract at all, it must be on the express contract, (n) Thus, although the word " demise " implies a covenant for quiet enjoyment, yet it is v. Eagle Fire Ins. Co. 9 Wend. 611 ; Blanc J. Buckler v. Buttivant, 4 East, Phelps v. Townsend, 8 Pick. 392.] 85 ; per Bayley J. Grimman v. Legge, 8 (t) Per Cockburn L. C. J. Stirling v. B. & C. 326 ; Read v. Eann, 10 B. & C. Maitland, 5 B. & S. 840, 852; and see 438; [Galloway v. Holmes, 1 Doug. M'Intyre v. Belcher, 14 C. B. N. S. 654. (Mich.) 330; Whiting v. Sullivan, 7 (k) Per Cur. Aspdin v. Austin, 5 Q. Mass. 107 ; Worthen v. Stevens, 4 Mass. B. 671, 683. 448; Weston v. Davis, 24 Maine, 374; (Z) See Rashleigh v. South Eastern Parker J. in Britton v. Turner, 6 N. H. Railway Company, 10 C. B. 612, 632; 481, 491; Nelson a. Von Bonnhorst, 29 Smith v. The Mayor &c. of Harwich, 2 Penn. St. 352. Nor will the law imply * C. B. N. S. 651 ; Sharp v. Waterhouse, 7 promise against the express declaration of E & B 816. the party, made at the time of the sup- (m) See per Ashurst and Buller JJ. posed implied undertaking. Whiting v. Touissaint «-. Martinnant, 2 T. R. 104, Sullivan, 7 Mass. 107. See Patten v. 105; Cutter v. Powell, 6 T. R. 320; per Hood, 40 Maine, 457.] Lawrence J. Cowley v. Dunlop, 7 T. R. (») Selway v. Fogg, 5 M. & W. 83 ; 568 ; Cook v. Jennings, lb. 381 ; per Le Fergusson e. Carrington, 9 B. & C. 59. fiO FORM OF THE CONTRACT. qualified and restrained by an express covenant for quiet enjoy- ment, (o) And so, although, in the absence of an express stipula- tion, and if there be a custom of the country to that effect, an out- going tenant is impliedly entitled to an allowance for seed, and labor, &c. in the last year of his tenancy, the benefit of which will be received by the incoming tenant ; yet the custom can furnish no right by implication, where the tenant holds upon a lease or contract containing express terms and provisions upon the subject, and which either directly contravene the custom, or show that the parties must have contemplated that it should have no application to their case, (p) SECTION III. 1. Of the form of a contract. 2. How affected in general by the statute of frauds. 3. As to agreements not to be performed within a year. 4. Of the construction of contracts. 5. Parol evidence to contradict or explain a written contract. 1. We have seen that there cannot be a deed without writ- w . . ing ; (q) but as a general rule, a simple contract need when nee- not be reduced into writing. Where the law makes no special provision to the contrary — where written evidence of the contract or promise is not expressly required — such contract or promise is valid, though it be verbal only. By the statute of frauds, however, and also in the case of grants of annuities, (r) and the sale or transfer of ships, (s) writing has been rendered essential by statute. So, by statute, the sale or as- signment of a copyright must be in writing, (f) And the legisla- ture has acted upon the same principle by providing that the prom- (o) Line v. Stephenson, 6 Scott, 447. Gray, 416 ; Veazie v. Somerby, 5 Allen, (p) See Roberts „. Barker, 1 C. & M. 280.] 808 ; [Clark v. Baker, 11 Met. 189, 190.] (*) 5 & 6 Vict. c. 45 ; 3 & 4 Will. 4, c. {q) Ante, 3. And it must be written on 15 ; 8 Ann. c. 9, as to which see Davidson parchment or paper. Co. Litt. 219 a. v. Bohn, 6 C. B. 456 ; 41 Geo. 3, t. 107 ; (r) 53 Geo. 3, c. 141. 54 Geo. 3, c. 156, ». 4. See Chitty's Stat. (s) 17 & 18 Vict. u. 104, s. 55. [Act of tit. Copyright,- Power v. Walker, 3 M. & Congress, U. S. July 29, 1850; Abbott S. 7 ; S. C. 4 Camp. 8. [Act of Con- Ship. (7th Am. cd.) 2, in note; Metcalfw. gress, U. S. June 30, 1834; Gould v. Taylor, 36 Maine, 33 ; Chadbourne u. Banks, 8 Wend. 562.] Duncan, 36 Maine, 89 ; Potter v. Irish, 10 FORM OF THE CONTRACT. 91 ise of a debtor to pay a debt barred by the statute of limitations, or of an adult to pay a debt contracted during his nonage, shall be void, unless it be in writing and signed by the party, (u) So by the custom of merchants, bills of exchange and promissory notes, and other similar negotiable instruments, must be reduced into writing, and signed by the parties thereto, (x) But, even where the law requires a contract to be in writing, it may be written in pencil, and not in ink. (?/) We have already observed that, to constitute a valid agreement not under seal, there must be the mutual and definitive Contents of a assent of both parties to the terms of the agreement ; and trS'inwrit- that the agreement itself must be founded on a good con- ia S- sidei - ation. And we now remark, further, that where the contract is required by the statute of frauds to be in writing, it is essential, — except in the case of guaranties made after the passing of the 19 & 20 Vict. c. 97, s. 3, — that the consideration should appear upon the face of the document or memorandum by which it is to be proved ; because the intention of that statute was, that the agree- ment should be signed by the party chargeable therewith. (2) If, therefore, in such a case, the absolute engagement of one party were shown to be in writing, and it could not be collected there- from upon what consideration he contracted, there would not be a sufficient agreement between the parties to satisfy the stat- ute. («) Nor is this rule confined to cases within the statute of (u) 9 Geo. 4, c. 14, ss. 1, 5. [A promise or consideration may be stated in the by an adult to pay a debt contracted dur- memorandum in any words or figures ing his nonage is not generally, in the which clearly indicate, as applied to the United States, required to he in writing, subject, what that price or consideration A statute in the State of Maine requires is. Gowen v. KIous, 101 Mass. 454 ; a writing in such a case.] Salmon Falls Manufacturing Co. 0. God- fa:) Lut. 878; Thomas ». Bishop, Rep. dard, 14 How. (U. S.) 446; Spicer v. T. Hardw. 2 ; per Abbott C. J. Geary v. Cooper, 1 Q.B. 424. Seeldew. Stanton, 15 Physic, 5 B. & C. 234, 237. Vt. 685 ; Meadows v. Meadows, 3 McCord, (y) Geary v. Physic, 5 B. & C. 234, 237 ; 458 ; Adams v. M'Millan, 7 Porter, 73 ; [Clason <>. Bailey, 14 John. 484; Merritt Johnson v. Ronald, 4 Munf. 77 ; Smith o. v. Clason, 12 John. 102; McDowel v. Arnold, 5 Mason, 414 ; Langstaff v. Nich- Chambers, 1 Strobh. Eq. 347; Draper v. olson, 25 Brew. 160; Carr v. Passaic Land Paltina, 2 Speers, 292.] Imp. & Building Co. 4 C. E. Green, (z) See per Tindal C. J. Laythoarp v. 424 ; S. C. 7 C. E. Green, 85 ; Bird v. Bryant, 3 Scott, 238, 249. Richardson, 8 Pick. 252 ; Atwood v. Cobb, (a) Wain v. Warlters, 5 East, 10; 16 Pick. 227. In many of the American Saunders v. Wakefield, 4 B. & Aid. 595 ; states the courts have rejected the Eng- Jenkins v. Reynolds, 3 B. & B. 14 ; Mor- lish rule stated in the text, upon a judi- ley v. Boothby, 3 Bing. 107. [The price cial construction of the same language in 92 FORM OF THE CONTRACT. frauds ; for, even where the agreement is unnecessarily in writ- ing, if the parties agree that a particular instrument shall contain the terms of the contract, parol evidence cannot be given to add to or diminish from those terms ; (5) and it is, therefore, neces- sary that such instrument should contain in itself, all those matters which are essential to give it validity as an agreement not under seal. So in order to constitute a valid verbal or written agreement, Certainty re- the parties must express themselves in such terms, that qmre ' it can be ascertained to a reasonable degree of cer- their statutes. Such appears to be the course of decisions in Maine. Levy v. Merrill, 4 Greenl. 189; Gillinghan a. Boardman, 29 Maine, 81 ; in Connecticut, Sage v. Wilcox, 6 Conn. 81 ; in North Carolina, Miller v. Irvine, 1 Dev. & Bat. 103 ; Ashford v. Robinson, 8 Ired. 114; in in Massachusetts, Packard v. Richardson, 17 Mass. 122, confirmed by statute, Gen. Sts. o. 105, s. 2 ; in Ohio, Reed v. Evans, 17 Ohio, 128 ; in Missouri, Halsai). Halsa, 8 Missou. 305 ; Bean v. Valle, 2 Missou. 103 ; in Vermont, Patchin v. Swift, 21 Vt. 297 ; in Texas, Adkins v. Watson, 12 Texas, 199. See as to Tennessee, Whitby v. Whitby, 4 Sneed, 473. In other states the courts have adopted the English con- struction of the statutes as to the state- ment of the price or consideration. As in New York, Sears v. Brink, 3 John. 210 ; Leonard v. Vredenburgh, 8 John. 37 ; Kerr v. Shaw, 13 John. 236 ; Bennett v. Pratt, 4 Denio, 278 ; Rogers v. Kneeland, 10 Wend. 218 ; D'Wolf v. Rabaud, 1 Peters, 501 ; in South Carolina, Stevens v. Winn, 2 Nott & McC. 372, note ; in New Hamp- shire, Neelson v. Sanborne, 2 N. H. 414; Underwood v. Campbell, 14 N. H. 393 ; in Maryland, Wyman v. Gray, 7 Harr. & J. 409 ; Elliott v. Giese, 7 Harr. & J. 457 ; Edelen v. Gough, 5 Gill, 103 ; in Georgia, Henderson o. Johnson, 6 Geo. 390 ; in Wisconsin, Reynolds v. Carpenter, 3 Chand. 31 ; Taylor v. Pratt, 3 Wis. 674; in Michigan, Jones v. Palmer, 1 Doug. 379 ; in New Jersey, Laing v. Lee, Spen- ser, 337. In New York it has been en- acted by statute that the consideration shall be expressed in the memorandum. See 2 Rev. Stat. New York, pt. 2, ch. 7, tit. 2, § 2 ; Packer v. Wilson, 15 Wend. 346 ; Gates v. McKee, 3 Kernan, 232. By statute in Indiana the consideration may be proved by parol. Rev. St. Ind. 1852, ch. 42, § 2. The words " value received " have been held to be a sufficient expression of a consideration in a guaranty. Doug- las v. Howland, 24 Wend. 35 ; Edelen v. Gough, 5 Gill, 103 ; Watson v. McLaren, 19 Wend. 557; Cooper u. Dedrick, 22 Barb. 516; Day v. Elmore, 4 Wis. 190. Where a, guaranty is written upon an agreement made at the same time, and ex- pressing a consideration, no other consid- eration need appear. Bailey v. Freeman, 11 John. 221 ; Adams v. Bean, 12 Mass. 139 ; Douglass v. Howland, 24 Wend. 35 ; Lecat v. Favel, 3 McCord, 158; Dorman v. Bigelow, 1 Florida, 281 ; Hall v. Farmer, 2 Comst. 557 ; S. C. 5 Denio, 584 ; Brewster v. Silence, 4 Selden, 207 ; S. C. 11 Barb. 144; Leonard v. Vreden- burgh, 8 John. 29. In some of the states where the word " promise," or some like term has been substituted for the word " agreement," or has been coupled with it in their statutes, a statement of the con- sideration has not been deemed necessary. See Violet o. Patton, 5 Cranch, 151 ; Wren v. Pearce, 4 Sm. & M. 91 ; Taylor v. Ross, 3 Yerger, 330 ; Gilman v. Kibler, 5 Humph. 19 ; Campbell v. Findley, 3 Humph, 330 ; Thompson v. Hall, 16 Ala. 204 ; Rutliff v. Trout, 6 J. J. Marsh. 606 ; Dorman v, Bigelow, 1 Florida, 281.] (6) Per Parke B. Lockett v. Nicklin, 2 Exch. 93, 97 ; Eden o. Blake, 13 M. & W. 614, 618. FOKM OF THE CONTRACT. 93 tainty what they mean, (e) And if an agreement he so vague and indefinite, that it is not possible to collect from it the full intention of the parties, it is void ; (d) for neither the court nor the jury can make an agreement for the parties. Thus, a con- tract for a lease, which does not show the length of the proposed term, is insufficient, (e) So, an agreement to become a partner with another person, would seem to be void for uncertainty, if the terms of the partnership be not fixed between the par- ties. (/) But if a firm be already formed on settled terms, an agreement between one of the partners and a third person, that the latter should become and be received as a member, is not open to the same objection. (. Bignold, 2 J. & W. 510. In the very nature of such transactions the (k) Morris t\ Paton, 1 C. & P. 189. memorandum must be posterior in point of (I) By whom framed, see Wyndham v r time to the contract of which it is the Chetwynd, 1 Burr. 418; S. C. 1 Bl. R. record. Merrick J. in Williams v. Bacon, 99; Gilb. Eq. R. 171 ; Wain v. Warltcrs, 2 Gray, 391; Marsh v. Hyde, 3 Gray, 5 East, 17. It is said to be one of the 331; Lerned v. Wannemacher, 9 Allen, wisest laws in our statute book. Chaplin 415, 416 ; Gale v. Nixon, 6 Cowen, 445 ; v. Rogers, 1 East, 194; and see Chater v. Parton v. Crofts, 16 C. B. N. S. 21. The Beckett, 7 T. R. 204 ; Saunders v. Wake- contract may be made at one time and the field, 4 B. & Ad. 600; Baldey v. Parker, 2 note or memorandum of it at a subse- B. & C. 40 ; 2 Ves. jun. 243. See 3 Pothier quent time. Lerned v. Wannemacher, 9 by Evans, 193. Allen, 416 ; Ide v. Stanton, 15 Vt. 690 ; (m) Michinson v. Hcwson, 7 T. R. 350, Davis v. Moore, 13 Maine, 424 ; Webster note; 1 Wins. Saund. 211, note (2) ; Allen v. Zielly, 52 Barb. 482.] HOW AFFECTED BY THE STATUTE OF FRAUDS. 95 The 1st, 2d, and 3d sections of the statute of frauds relate to the creation of a title to, and to demises of, real property, Provisions of and to contracts respecting such title and demises, (w) of frauds. The 4th section provides, that no action shall be brought, — 1st, whereby to charge any executor or administrator upon . ■ . . „ , . Section 4. any special promise to answer damages out or his own estate ; or 2dly, whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person ; or, 3dly, to charge any person upon any agreement made upon consideration of marriage ; or, 4thly, upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or, 5thly, upon any agreement that is not to he performed within the space of one yepr from the making thereof ; unless the agreement upon which such action shall be brought, or some memo- randum or note thereof, shall be in writing, and signed by the party to he charged therewith, or some other person thereunto by him lawfully authorized. The 17th section of the statute (amended by 9 Geo. 4, c. 14) relates to contracts for the sale of goods of the price of g ection 17 10Z. or upwards. In subsequent parts of this work, these important sections of the statute of frauds will separately undergo a full discussion. But at present we shall confine ourselves to a statement of the leading principles, as to the nature of the memorandum required by the statute, and the mode in which such memorandum must he signed. 1st. The statute does not require a formal contract, drawn up with technical precision, (w 1 ) Any memorandum under Content3 o£ the hand of the party made before action brought, (o) the memo- and which contains, either expressly or by reference, required by the terms of the agreement, is sufficient ; although it be merely a recognition or adoption of a prior written statement of such terms, not signed by the party, (p) And where a contract or (n) See post, chap. III. ( p) Dc Beil v. Thompson, 3 Beav. 469 ; (n 1 ) [Bailey v. Ogden, 3 John. 399 ; [Tallman v. Franklin, 4 Kernan, 584. It Curtis J. in Salmon Falls Manuf. Co. v. is not necessary that the memorandum Goddard, 14 How. (U. S.) 446; Johnson should be drawn up for the express pur- J. in Barry v. Coombe, 1 Peters (U. S.), pose of authenticating the agreement; if 650; Hurley v. Brown, 98 Mass. 546.] it recognizes the bargain, and is deliv- (o) Bill v. Bament, 9 M. & W. 36. ered and accepted, it will be sufficient, 96 FORM OF THE CONTRACT : note in writing exists, which binds one party, any subsequent note in writing, signed by the other, is sufficient to bind him, provided it either contain in itself the terms of the contract, or refer to any writing which does contain them. ( 638 - (s) Per Cur. Ford «. Beech (in error), 1 106 CONSTRUCTION OF CONTRACTS. namely, that the words and language of the instrument will bear the sense sought to be put upon them ; (u) for the court " cannot put words in a deed which are not there, or put a construction on the words of a deed directly contrary to the plain sense of them." (x) The object then which is to be aimed at in construing a contract . being, to discover and give effect to the intention of the Particular . , • • rules of con- parties, let us now consider by what rules and subject to what principles this object is to be obtained. These are chiefly the following : 1st. It is laid down, that " An agreement or contract shall have a reasonable construction according to the intent of the Construction . ° shall be parties : as n a man agree with B. for twenty barrels or ale, he shall not have the barrels when the ale is spent." (jf) So it has been held to be no defence to an action for not accepting a cargo of oil, that the casks which contained it were not well seasoned, — the subject-matter of the contract being the oil and not the casks ; (z) and it being essential, as we shall see more fully hereafter, to consider the subject-matter of an agreement, in giving a meaning to the terms used therein, (. Vanhouten, 4 How. (Miss.) Max. 14; Bac. Max. 47. 428; Many v. Beekman Iron Co. 9 Paige, (a) Per "Williams J. Wilkinson v. Gas- 188.] ton, 9 Q. B. 137, 146, referring to Rex v. (v) Co. Litt. 78 b. Stevens, 5 East, 244. And see Isaacs v. (x) Harrington v. Kloprogge, 4 Dougl. Royal Insurance Company, L. Rep. 5 Ex. 5 ; Palmer v. Bate, 2 B. & B. 678, note. 296. CONSTRUCTION OF CONTRACTS. 113 So where a person, under a power reserved in his marriage settlement to lease for twenty-one years in possession, but not in reversion, granted a lease to his only daughter for twenty-one years, to commence "from " the day of the date, — this was held to be a good lease ; and it was laid down by the court, that the word " from " may be taken to mean either inclusive or exclusive, according to the context and subject-matter, and that they would construe it so as to effectuate the deeds of the parties, and not to destroy them. (5) And this principle has since been fully recognized, — the rule being, that although the word " from " is primd facie exclusive, yet * its real meaning must depend on the circumstances of the par- ticular contract, (c) So the words " on " or " upon," in a contract, may mean either before the act done to which it relates, or simul- taneously with the act done, or after the act done, according as reason or good sense require. (cT) And so the word " to " may be held to mean " towards." (e) 4th. And as the meaning to be put on a contract is that which is the plain, clear, and obvious result of the terms used The popular therein ; so these terms are to be understood in their "ords'if to plain, ordinary, and popular sense, (/) unless they have, be ado P ted - generally, in respect to the subject-matter, — as by the known usage of trade or the like, — acquired a particular sense, distinct from the popular sense of the same words ; or unless the context evidently points out that they must, in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special sense. (#) And the same rule has been thus stated : words are to be construed according to their strict and primary acceptation, unless, from the context of the instrument, and the intention of the parties to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect, (h) (6) Pugh v. Duke of Leeds, Cowp. 714. Smith, 3 Fairf. 429 ; McWilliams v. Mar- (c) Wilkinson v. Gaston, 9 Q. B. 137. tin, 12 Serg. & R. 260; Schuylkill Nav. (rf) See per Cur. Reg. v. Arkwright, 12 Co. v. Moore, 2 Whart. 491.] Q. B. 960, 970 ; Paynter v. James, L. (g) Per Lord Ellenborough, Robertson Rep. 2 C. P. 348, 354. »■ French, 4 East, 130, 135. The same (e) Colledge o. Harty, 30 L. J. Exch. rule applies as to the construction of an j4g act of parliament; per Lord Tenterden, (/) See Stanley !>. Western Insurance Rex v. Winstanlcy, 1 0. & J. 444. Company, L. Rep. 3 Ex. 71 ; [Hawes v. {It) Per Cur. Mallan „. May, 13 M. & VOL. l. 8 114 CONSTRUCTION OF CONTRACTS. In an action of covenant, to recover the arrears of an annuity granted to the plaintiff for the use of his sister, who was the de- fendant's wife, the defendant pleaded a deed executed by the plaintiff, whereby it was covenanted that if the defendant's wife should " associate, continue to keep company with, or cohabit, or criminally correspond with J. F.," the annuity should cease. It was held at the trial, that the object of this clause was, to prohibit all intercourse, even mere visiting, however innocent. And the court, on motion for a new trial, held that this deed had received a perfectly right construction ; for it appeared by the evidence that, short of a criminal intercourse, Mr. F. was a suspected person. The words of the deed were as general as could be, and went* much further than the mere exclusion of criminal cohabitation : the intention was to put a stop to all intercourse whatever between these two persons. The receiving a man's visits whenever he chooses to call, is associating with him. The parties had chosen to express themselves in those terms, and the words must receive their common meaning and acceptation, (i) And, in like manner, where a contract is to be performed " directly," this is held, not to mean " within a reasonable time ;" but " speedily," or, at least, " as soon as possible." (7c) So an agree- ment to do an act " forthwith," has been held to mean that it shall be done " without delay or loss of time." (Z) The following letter was addressed to an African captain and supercargo by his employers : " Your commissions are 61. per cent. on the net proceeds of your homeward cargo, after deducting the usual charges." The captain sued his employers for commission upon the gross sales, after deducting the usual charges ; and on the trial it was contended for the defendants, that the words " net W. 511, 517 ; and see Tielens v. Hooper, agreement to deliver Salina suit in bar- 5 Exch. 830 ; [per Erskinc J. in Shore v. rels, such barrels as are prescribed by stat- Wilson, 9 CI. & Fin. 512, 565. Technical ute are understood. Clark v. Pinner, 7 terms in a written contract must have a Cowen, G81. So a contract for several technical interpretation. Ellmaker v. Ell- tons of iron will be construed to have refer- makcr, 4 Watts, 89 ; James v. Bostwick, ence to the statute ton. Evans !,'. Myers, 1 Wright, 143. See Eaton v. Smith, 20 25 Penn. St. 114.] Pick. 150; Hart v. Hammett, 18 Vt. 127. (;') Lord Dormer v. Knight, 1 Taunt. When a new word is used in a contract, or 417. when a word is used in a technical and (k) Duncan v. Topham, 8 C. B. 225. peculiar sense, as applicable to any branch (/) See per Lord Chelmsford, Roberts v. of business, or to any particular class of Brett (in Dom. Proc.) .34 L. J. C. P. 241, people, its meaning is a question of fact. 247. Eaton v. Smith, 20 Pick. 150. In an CONSTRUCTION OF CONTRACTS. 115 proceeds " must be taken to mean, according to their ordinary acceptation, the sums actually realized by the sale of the cargo ; so that the plaintiff was not entitled to receive a commission upon the gross sales, but only on the sums actually realized, after de- ducting bad debts, as well as other charges ; and the court held that, as there was nothing in the context to show that the words " net proceeds " were not used in their ordinary sense, the defend- ant's construction of the contract was correct, (rn) So, where freeholders, who claimed a common right of fishing, subscribed an agreement to bear each other's expenses of defending any prosecution laid against them for fishing in the alleged common water ; it was held, that the words " laying a prosecution," in this agreement, must be taken to mean, not bringing an action, but preferring an indictment or information, such being the ordinary meaning of the words, (n) And so, where the plaintiff agreed not to enter up judgment on a warrant of attorney, unless the defend- ant should dispose of his business or become bankrupt or insolvent ; the words " become insolvent " were held to refer to a general inability to pay debts, and not to the fact of taking the benefit of the insolvent debtors' act, — there being nothing in the context so to restrain them. (0) But where a practice prevailed of compressing bales of cotton wool bv machinery, in order to improve their stowage, the furnishing a cargo of cotton wool in uncompressed bales, as they came from the grower, was held not to be a compliance with a contract to load " a full and complete cargo, not exceeding what the ship could reasonably stow." Qp~) (m) Caine v. Horsefall, 1 Exch. 519 ; 2 October," Chaurand v. Angerstein, Pcake, C. & K. 349. As to the meaning of the 43 ; and as to the " privilege " of an East terms " net cash," see Boden v. French, Indiaman, Birch v . Depeyster, 4 Camp. 10 C. B. 886 ; 20 L. J. C. P. 143. As to 385 ; " scarlet cuttings," Bridge v. Wain, the meaning of the term " say " in a mer- 1 Stark. 504. As to a contract to pur- cantile contract, Leeming v. Smith, 16 Q. chase "about three hundred quarters of B. 275 ; Gwillim v. Daniell, 2 C, M. & foreign rye, little more or less, shipped on R.61 ; "seaworthy," Small v. Gibson, 16 board," &c. Cross u. Eglin, 2 B. & Ad. Q. B. 128; 20 L. J. Q. B. 152, 158; 106; [Cabot v. Winsor, 1 Allen, 546.] " safely get," Shield v. Wilkins, 5 Exch. (n) Rawlins v. Jenkins, 4 Q. B. 419, 304; "sailing with convoy," Lilly v. 421. Ewer, Dougl. 72 ; Anderson v. Pitcher, 2 (0) Biddlecombe 0. Bond, 4 A. & E. B. & P. 164 ; " port," Harrower v. Hutch- 332 ; and see Parker v. Gossage, 2 Cr., M. inson, L. Rep. 4 Q. B. 523; 5 lb. 584. &R. 617. As to a warranty " to sail in the month of (p) Benson v. Schneider, 7 Taunt. ~272. 116 CONSTRUCTION OF CONTRACTS. And the rule we are now considering is liable to one exception, Exception to ylz - that the ordinary and more extensive meaning of the thia rule. words used in an agreement ought to be departed from, where they involve an absurdity ; or where, if so construed, they would entail upon the contractor a responsibility which it cannot reasonably be presumed he meant to assume, (y) Thus, a covenant to pay money at such time as should be appointed by the creditor, " by notice in writing sent by post, or delivered to or left at the house or last known place of abode " of the debtor, has been held to impose on the creditor the necessity of allowing a reasonable time to elapse between the giving of the notice and the day of payment", (r) And when a person covenants to pay money or do any other act "immediately," or " upon demand," he shall have a reasonable time to do the act, according to the nature of the thing to be done, (s) In cases of mercantile contracts the words employed may, by Mercantile usage, bear a very different meaning from their natural contracts. one . anc [ su ch meaning may be made matter of evidence. Hence it is that mercantile contracts are to be construed according to the usage and custom of merchants ; (f) and accordingly, when they contain peculiar expressions which have, in particular places or trades, a known meaning attached to them, it is for the jury to say what the meaning of these expressions is, although it is for the court to decide what is the meaning of the contract, (u) (q) See Pribble i; Boghurst, 1 Swanst. 16 Ohio, 421 ; Robinson v. Fiske, 25 Maine, 309, 329. And this, perhaps, forms an 405. " Usage is the legal evidence of cus- cxception to the rule, that the words of a torn." Bnyley J. in Read v. Rann, 10 B. contract shall be construed most strongly & C. 438, 440. Usage of trade cannot be against the promisor. See Taylor v. set up, either to contravene an established Briggs, 2 C. & P. 525. rule of law, or to vary the terms of an ex- (r) Brighty v. Norton, 3 B. & S. 305. press contract. But all contracts made in (s) Com. Dig. Condition, (G. 5) ; Toms the ordinary course of business, without v. Wilson, 4 B. & S. 442 ; Massey u. Sla- particular stipulations, express or implied, den, L. Rep. 4 Ex. 13. are presumed to be made in reference to (t) Per Gibbs C. J. Gibbon v. Young, 8 any existing custom, relating to such Taunt. 254, 261. trade; and it is always competent for a (u) Per Parke B. Hutchinson v. Bow- party to resort to such usage to ascertain leer, 5 M. & W. 535, 542 ; [per Alderson and fix the terms of the contract. Sewall B. in Morrell v. Frith, 3 M. & W. 406 ; v. Gibbs, 1 Hall, 602 ; Astor v. Union Ins. Rice v. Codman, 1 Allen, 377, 380 ; Smith Co. 7 Cowen, 202 ; Peisch v. Dickson, 1 v. Faulkner, 12 Gray, 255, 256 ; Worces- Mason, 11,12. To affect a party with a ter Medical Institution o. Harding, 11 usage, he must be shown to have been ac- Cush. 285, 289 ; Eaton v. Smith, 20 Pick, quainted with it, or it must have been so 150; Wayne v. Steamboat General Pike, general as to create a presumption of CONSTRUCTION OF CONTRACTS. 117 5th. Another rule is, that every contract is to be construed with reference to its object, and the whole of its terms ; (x) The whole and accordingly, the ivhole context must be considered ^"Sd- 10 in endeavoring to collect the intention of the parties, (a; 1 ) ered - even although the immediate object of inquiry be the meaning of an isolated clause. («/) Ex antecedentibus et consequentibus fit knowledge. Stevens v. Reeves, 9 Pick. 198; Dodge v. Favor, 15 Gray, 82; Clay- ton v. Greyson, 5 Ad. &E1. 302. See Hunt v. Otis Company, 4 Met. 464 ; Batter- man v. Pierce, 3 Hill, 174 ; Parrott v. Thatcher, 9 Pick. 426 ; Collins v. Hope, 3 Wash. C. C. 149 ; Trott v. Wood, 1 Gall. 443 ; Dawson v. Kittle, 4 Hill, 107 ; Har- mon v. Salmon Falls Manuf. Co. 35 Maine, 447. As to the custom in the corn trade, see Johnston v. Usborne, 3 P. & Dav. 236 ; Clark v. Baker, 1 1 Met. 186. As to the meaning of the terms " good " and "tine" barley, see Hutchinson v. Bow- ker, 5 M. & W. 540 ; Whitmore v. Coats, 14 Missou. 9.] (x) Per Wilde C. J. Richards v. Bluck, 6 C. B. 437 ; S. C. 18 L. J. C. B. 17 ; and see Turner v. Evans, 2 E. & B. 512; Reid o. Fairbanks, 13 C. B. 692, 730; Bourne o. Seymour, 16 C. B. 337 ; Gage v. Newmarket Railway Company, 18 Q. B. 468 ; Mason v. Cole, 4 Exch. 375 ; [Pembroke Iron Co. v. Parsons, 5 Gray, 589. In construing a contract the court will look to the motives that led to it, and the object intended to be affected by it. Davis v. Barney, 2 Gill & J. 382.] (zi) [See Gray v. Clark, 11 Vt. 583; Kelly v. Mills, 8 Ham. (Ohio) 325; Pat- rick v. Grant, 14 Maine, 233 ; Washburn v. Gould, 3 Story, 122 ; Nettleton v. Bil- lings, 13 N. H. 446 ; Warren v. Merry- field, 8 Met. 96 ; Field v. Woodmancy, 10 Cush. 431 ; Chase v. Bradley, 26 Maine, 531 ; Merrill o. Gore, 29 Maine, 346 ; Heywood v. Perrine, 10 Pick. 228, 230.] (y) See Stavers o. Curling, 3 Scott, 740; S. C. noni. Stevens o. Curling, 3 Bing. N. C. 355. [It is the most impor- tant of all the rules of construction, that the whole of the agreement is to be con- sidered ; for obviously it cannot be the in- tention of the parties to an agreement, with stipulations or qualifications, that some of them should be altogether disre- garded, and a part of the agreement mag- nified into an equality with the whole ; but, on the contrary, such a meaning is to be given to particular parts as will, with- out violence to the words, be considered with all the rest, and with the evident ob- jects and intention of the contracting par- ties. Smith Contr. (3d Eng. ed.) 457. The recent case of Monypenny v. Mony- penny, 3 De G. & J. 572, decided by Lord Chancellor Chelmsford, contains one of the most luminous judgments to be found in the books on this most important rule. S. C.9 H. L. Cas. 114. SeePiggott v. Strat- um, 1 De G., F. & J. 33. An important instance of the above rule is that where general words follow others of a more par- ticular meaning, they are to be construed as applicable to things ejusdem generis with the former particular words. Cullen u. Butler, 5 M. & Sel. 461 ; Naylor u. Pal- mer, 8 Exch. 739; Jones v. Nicholson, 10 Exch. 28 ; Lozano v. Janson, 28 L. J. Q. B. 337; Perrin v. Protection Ins. Co. 11 Ohio, 147 ; Ellery v. New Eng. Ins. Co. 8 Pick. 14 ; Marcy v. Sun Ins. Co. 11 La. An. 748. It is obvious that, if the whole of the agreement is to be considered, the place where it was made, the time when, the object of the parties, and the depart- ment of science or art, trade or commerce, to which the subject-matter belongs, must be regarded; but bearing in mind these observations as to the peculiar meaning which words sometimes bear, and to the context of the whole contract, the usual and proper mode of understanding words is according to their ordinary sense and meaning. Barton o. Fitzgerald, 15 East, 530; Lord Dormer v. Knight, 1 Taunt. 417; Smith Contr. (3d Eng. ed.) 471, 474.] 118 CONSTRUCTION OF CONTEACTS. optima interpretatio. (V) Thus we have seen, that in the case of a bond with a condition, the condition may be read, in order to explain the obligatory part of the instrument, (a) So we have seen, that in determining the meaning of words which are used for the purpose of designating periods of time, — such as the words " from " and " until," — the whole contract is to be taken into con- sideration. (J) So it would seem, that when the meaning of a contract for services is ambiguous, the court will take into consider- ation even the price agreed to be paid for those services, for the purpose of enabling them to determine the extent of the service to be rendered under the contract, (c) So, in a covenant to pay so much for every statute acre of coal which should be found under certain lands, and, until the price should be fully paid, to pay part of the said price every year, whether the whole of an acre of coal should be gotten in every such year or not ; the word " found " was construed to mean — contrary to its strict and primary meaning — " ascertained to lie and be ; " because the instrument, taken as a whole, showed that the price was to be paid for coals " found" and not for coals "gotten." (cT) So, where the plaintiff demised to the defendant for a certain (z) 2 Bl. Com. 379,380, citing I Bulstr. in a mining lease, see Griffiths v. Kigby, 1 101 ; 1 P. Wms. 457 ; Plowd. 160 ; [1 H. & N. 237 ; Jones v. Shears, 7 C. & P. Shep. Touch. 87 ; Coles ;>. Hulme, 8 B. & 346. Where a count in assumpsit against C. 568.] See per Hobart C. J. Trenchard the secretary of a joint stock company v. Hoskins, Winch. 93 ; per Lord Ellen- stated, that on such a day it was agreed by borough, Barton v. Fitzgerald, 15 East, and between the plaintiff and the company, 541 ; Payler u. Homersham, 4 M. & S. that from the 1st day of January then 426; Sicklemore ». Thistleton, 6 lb. 12; next the plaintiff should receive and ac- per Best C. J. Saward v. Anstey, 2 Bing. cept a salary of 100Z. per annum, in lieu 522. " All the clauses of agreements are of rendering an annual bill of costs for interpreted by each other, giving to each general business transacted by him for the the sense derived from the entire act." company; and should and would, for such Code Civil, book iii. tit. 3, s. 5, art. 1161. salary, advise and act for the company on The same rule applies in construing acts all occasions, in all matters connected with of parliament. Doe v. Brandling, 7 B. & the company, with certain exceptions; it C. 643. was held, that the promise of the com- (a) Ante, 107. pany, to be inferred from this agreement, (6) Wilkinson v. Gaston, 9 Q. B. 137 ; according to the true construction thereof, Rex v. Stevens, 5 East, 244. was a promise to continue the relation of (c) Per Bayley and Vaughan BB. Allen attorney and client between them and the v. Cameron, 1 C. & M. 832. plaintiff, at least for a year. Emmens o. (d) Jowett v. Spencer (in error), 1 Elderton (in Dom. Proc), 13 C. B. 495; Exch. 647, reversing the judgment of the affirming Elderton v. Emmens (in error), court of exchequer, S. C. 15 M. & W. 6 C. B. 160, reversing the judgment of the 662. As to the meaning of the terms court of C. P. in S. C. 4 C. B. 479. " fairly wrought," and " fairly workable," CONSTRUCTION OF CONTRACTS. 119 term, all the veins, &c. of potter's and other clay which then were, or should thereafter be found upon or under certain lands of the plaintiff, he the defendant yielding and paying therefor to the plaintiff, in respect of all potter's clay to be dug, got, or obtained from or under the surface of any of the said lands, a certain sum per ton ; and the defendant covenanted that he would dig or cause to be dug and removed from the said lands, in pursuance of the said demise, an aggregate amount of such clay of not less than 1,000 tons, nor a larger quantity than 2,000 tons, in each year of the said term : it was held that this covenant, when taken with the other parts of the instrument, did not amount to an absolute cov- enant by the defendant to dig in every year from the lands included in the demise, a quantity not less than 1,000 tons of potter's clay ; but only to a covenant to dig not less than that quantity, provided so much of such clay was, or should be, found upon or under the lands in question, (e) So, where the contract was, to deliver to the buyer a quantity of cotton " in merchantable condition, the damaged, if any, to be rejected, provided it cannot be made merchantable ; " it was held that the buyer was entitled to have the cotton made merchantable before he accepted it. (/) And where a paper was in these words : " We hold at your disposal 1,000 tons of pig iron, which we engage to deliver to your order, free of all charge, into boats, on the presentation of this document duly indorsed by you ; " it was held that, in this case, the word " presentation " meant deliver- ing up the document, and not merely showing it. (#) In like manner, words may be transposed, if it be necessary to do so in order to give effect to the evident intent of the & . words may parties. (A) As if a lease for years be made in Febru- betrans- ary, rendering a yearly rent pat/able at Michaelmas Bay and Lady Day during the term, the law will make a transposition of the feasts, viz. at Lady Day and Michaelmas Day, that the rent may be paid yearly during the term. And so it is in the case of an annuity, (i) So, however plain the grammatical construction of a sentence may be, if it be clear from the contents of the instrument that (e) Clifford o. Watts, L. Rep. 5 C. P. (h) Per Willes C.J. Parkhurstw. Smith, 577. Willes, 327, 332 ; Shep. Touch. 84. (/) Morgan v. Gath, 3 H. & C. 748. (i) Co. Lit. 217 b. (?) Bartlett v. Holmes, 13 C. B. 630. 120 CONSTRUCTION OF CONTRACTS. the apparent grammatical construction cannot be the true one ; Grammatical tnen tna t which, upon the whole, is the true meaning may'be'diB- s ^ la ^ prevail, in spite of the grammatical construction regarded. f suc ] 1 particular sentence. (F) And the general mode of construing deeds in which there are Effect of ex- exceptions is, to let the exceptions control the instrument, ceptions. s0 f ar as t ne WO rds of it extend, and no further; and then, upon the case being taken dut of the letter of the exception, the deed operates in full force. (7) As to the construction of general words, the rule is, verba gene- ralia restringuntur ad habilitatem rei vel personam, (m) words, how And the rule which is laid down with reference to the construed. r . . , , construction of statutes, — namely, that where several words preceding a general word point to a confined meaning, the general word shall not have such a meaning as to extend its effect beyond subjects ejusdem generis, (n) — would seem to apply equally to the construction of agreements. (0) Indeed it follows as a corollary to the rule of construction we are now considering ; its meaning being simply, that every word shall be construed in con- junction with the words that accompany it. It is upon the principle of this rule that, when the words in the ,„, operative part of a deed or agreement are of doubtful When con- A # l ° trolled by meaning, the recitals may be used as a test, to discover the intention of the parties, and to fix the true meaning of those words, (j?) Thus, where it was recited in a composition (7c) Per Cur. "VVaugh v. Middleton, 8 St. Katherine's Dock Co. 14 M. & W. Excl). 352, 357 ; [Gray a. Clark, 1 Vt. 794, 799 ; Harper v. Albany Mutual Ins. 583; Nettleton v. Billings, 13 N. H. 446. Co. 17 N. Y. 394; Hunter u. General As to the construction where a printed Mutual Ins. Co. of New York, 11 La. An. form is used, and the contract is partly 139; Goicoechea v. La. State Ins. Co. lb written and partly printed, see Harper v. Martin (La.), 51, 55; Wallace v. Ins. Co. Albany Mutual Fire Ins. Co. 17 N. Y. 4 Louis. 289; Cushman o. North West- 194; Bryant v. Poughkcepsie Ins. Co. 17 em Ins. Co. 34 Maine, 487.] N. Y. 200 ; 3 Kent, 260 ; Moore v. Per- (I) Per Lord Kenyon, Bowring v. Ems- petual Ins. Co. 16 Missou. 98 ; Cushman lie, cited in 7 T. R. 216, note. o. North Western Ins. Co. 34 Maine, 487 ; (m) See West London Railway Com- Coster v. Phoenix Ins. Co. 2 Wash. C. C. pany v. London & North Western Eail- 51 ; Robertson <,-. French, 4 East, 130, 136 ; way Company, 11 C. B. .327, 356. per Oakley C. J. in Weisser v. Maitland, 3 (n) Per Lord Denman, Reg. v. Nevill, Sandf. 318. If it is practicable to construe 8 Q. B. 452, 463 ; Sandiman v. Breach, 7 the whole contract — that which is written B. & C. 96. and that which is printed — together, so (o) See Harrison v. Blackburn, 1 7 C. B. that it makes an intelligible contract, this N. S. 678. course should be adopted. Alsagar v. (/)) Per Cur. Walsh v. Trevanion, 15 CONSTRUCTION OF CONTRACTS. 121 deed, that the defendant was indebted to his creditors in the several sums set to their respective names, and that they had agreed to take of him 15s. in the pound thereon ; and the creditors then, in consider- ation of the said 15s. in the pound paid to them before executing the deed, released the defendant from all manner of actions, debts, claims, and demands in law and equity, which they or either of them had against him, or thereafter could, should, or might have, by reason of anything from the beginning of the world to the date of the release : it was held, that the release did not extend to any- thing but the respective debts recited, and all actions and demands touching them ; for the general words of the release had reference to the particular recital, and were governed by it. ( 1 or P r0 ™0, condition. Ihus, it a lessee covenant to repair, "pro- vided always, and it is agreed, that the lessor shall find timber," the lessor is liable to an action of covenant if he refuse to find timber ; and the clause is not a mere qualification of the lessee's covenant, (m) So, where a lease was granted to A., on condition that he should (g) Young v. Kaincock, 7 C. B. 310, C. & J. 105 ; and see Saltoun v. Houston, 340. 1 Bing. 433. (h) Aspdin v. Austin, 5 Q. B. 671,683; (k) See per Lord Gifford, Saltoun v. and see Farrall v. Hilditch, 5 C. B. N. S. Houston, 1 Bing. 433 ; per Cur. Sampson 840 ; Courtney v. Taylor, 6 M. & G. 851 ; u. Esterby, 9 B. & C. 505, 514. Marryatt v. Marryatt, 29 L. J. C. 665 ; (I) Duke of St. Albans v. Ellis, 16 East, Great Northern Railway Company v. Har- 352. rison, 12 C. B. 576, 609. (m) Haider v. Taylor, Brownl. 23; (i) 9 B. & C. 505, affirmed in error, 1 Pordage v. Cole, T. Eaym. 183 ; S. C. 1 Lev. 274. 126 CONSTRUCTION OF CONTRACTS. keep and leave the premises in as good plight as he found them ; it was held that he was liable in covenant for omitting or condition. . , „ to leave the premises in good plight, tor such an agree- ment was to be implied, (n) But, if the lessee of a term assign it by indenture sealed by the assignee, and thereby assign " subject to the payment of the yearly rent, and the performance of the cov- enants and agreements reserved and contained in the said lease ; " this does not amount to a covenant to pay the rent during the residue of the unexpired term ; and the lessee, therefore, cannot sue the assignee in covenant for rent which he has been called upon to pay to the lessor after the assignee has assigned over, (o) In general, a contract must be construed by the provisions con- tained in it, and not by anything dehors; but still, in The court ' J , - ' *=> ' ' will some- some cases, the court will look at the subsequent acts dehors the of the parties, — although not to subsequent declarations instrument; or ac ^ missions, either verbal or written, (p) — in order to ascertain their intention at the time of making the contract, (q) So, where an instrument appears to have been altered, the court will look at it as it originally stood, and at the alterations or at alter- . ° . . - ations in the which have been made in it, to see whether those alter- instrument. . ... , ,. , , „ . ations will throw any light upon the question ot in- tention : (r) and equity will look even to a second instrument, in construing the effect of a former, (s) So, several deeds made at the same time to effect one object, will, Rule where a (; least in equitv, be construed as one assurance, but so there are , " .... ^ several in- that each shall have its distinct effect in carrying out pari materia, the main design. (£) Thus, where a father put his son (n) 40 Edw. 3, 5 b; Bac. Abr. Cove- Hudson v. Haslam, tried at the sittings at nant, (A.) ; Roll. Abr. 518. See Geary Westminster in Michaelmas Term, 1849, v. Reason, Cro. Car. 128. MS. But see per Cur. Cumberland u. (o) Wolveridge a. Steward, 1 C. & M. Bowes, 15 C. B. 348, 356. 645, reversing the judgment of the C. P. (s) Fowlers. Hunter, 3 Y. & J. 506. in Steward v. Wolveridge, 9 Bing. 60. (t) 1 Fonbl. Tr. Eq. 5th ed. 436, 437 ; (p) Per Lord Campbell and Erie J. [Stevens v. Baird, 9 Cowen, 274 ; Make- Lewis v. Nicholson, 18 Q. B. 503 ; 21 L. peace v. Harvard College, 10 Pick. 302; J. Q. B. 311, 315, 317. Sibley v. Holden, 10 Pick. 250; Hunt v (q) Chapman v. Bluck, 5 Scott, 515 ; Livermore, 5 Pick. 395 ; Applegate v. per Tindal C. J. Doe d. Pearson u. Ries, Jacoby, 9 Dana, 209 ; Strong v. Barnes, 8 Bing. 178, 181 ; but see Doe d. Morgan U Vt. 221 ; Odiorne v. Sargent, 6 N. H. v. Powell, 7 M. & G. 980. 401 ; Raymond u . Roberts, 2 Aiken, 204 . (r) PerBayley B. Strickland v. Max- Reed v. Field, 15 Vt. 672 ; Ewer v. Myrick well, 2 C. & M. 5.39, 550; [Warren v. 1 Cush. 16, 22; Barnard „. Cushing, 4 Merrifield, 8 Met. 93.] And this rule was Met. 231 ; Hunt v. Frost, 4 Cush. 54 . acted on by Creswell J. in the case of Whitehurst v. Boyd, 8 Ala. 375 ; Sewall CONSTRUCTION OP CONTRACTS. 127 apprentice, and entered into a bond of 1,000/. for his fidelity, and at the same time took a covenant from his master, that he would see his apprentice make up his cash at least once a month : it was held, on a bill filed to be relieved against an action brought on the bond, that the bond and the covenant ought to be taken as one agreement ; and that, therefore, the father should be answerable for no more than the master could prove the apprentice embezzled in the first month when the embezzlement began, (u) So, where a man covenanted by marriage articles to pay the lega- cies charged npon his wife's estate, and gave a statute and also a mortgage of his own estate to secure the same ; and, by an indorse- ment upon the mortgage, the same was to be void, unless the wife's estate was settled upon him for life according to the marriage arti- cles ; this indorsement, though upon the mortgage only, was held to be sufficient in equity to discharge the statute and articles ; for all the instruments being executed at one and the same time, authenticated by the same witnesses, and part of the same agree- ment, they were to be viewed but as one conveyance, (x) It is also a well-approved rule that, where parties have used language which admits of two constructions, the one Ambiguous contrary to the apparent general intent, and the other * erms - consistent with it, the law assumes the latter to be the true con- struction. («/) So where the different parts of an instrument are inconsistent v. Henry, 9 Ala. 24 ; Casey v. Holmes, 10 the contract, the recitals are to be ex- Ala. 776 ; Cordray v. Mordecai, 2 Bich. plained and corrected by the contract to 518; Duncan u. Charles, 4 Scam. 561 ; which reference is made. Sawyer e. Ham- Meriden Britannia Co. c. Zingsen, 48 N. matt, 15 Maine, 40. And the court will Y. 247 ; Morss n. Salisbury, 48 N. Y. 636. preserve such a priority in the execution of Where there are two instruments, one full the contracts as will best effect the intent and explicit as to the intent and meaning of the parties. Newhall e. Wright, 3 of the parties, and the other general, but Mass. 138; Whitehurst v. Boyd, 8 Ala. referring to and adopting the stipulations 375 ; Sewall v. Henry, 9 Ala. 24. But it contained in the former, in giving a con- does not follow, because two instruments, struction to the agreement of the parties, relating to the same subject-matter, were both instruments will be considered as executed on the same day, that they were forming but one agreement. Bogers v- executed at the same time, and are parts Kneeland, 13 Wend. 114; Adams v. Hill, of the same transaction. Mann a. Whit- 16 Maine, 215; Morss i\ Salisbury, 48 beck, 17 Barb. 388.] N. Y. 636. When written instruments (u) Montague v. Tidcombe, 2 Vern. 519. have reference to a former contract, and (x) Lawrence v. Blachford, 2 Vern. 457 ; contain recitals of its subject-matter, and 1 Fonbl. Tr. Eq. 5th ed. 437, 438. it appears that there is a variance between («/) Per Cur. Ford v. Beech (in error), such instruments, and between them and 11 Q. B. 852, 868. 128 CONSTRUCTION OF CONTRACTS. with each other, effect must be given to that part which is calcu- lated to carry into effect the real intention ; and that part Inconsistent . * . • or repugnant which would defeat it must be rejected, (z) And where there are two clauses in a contract, so totally repugnant to each other that they cannot stand together, the former shall be received and the latter rejected, (a) 6th. It is an undoubted general rule, that the law of the country , where it is made is to be considered in expounding a be expound- contract. (b~) And, accordingly, before proceeding to ed according . y ' ■ f J n i ■ to the lex loci interpret a foreign contract, the court must first be m- formed of any special law or peculiar rule of construc- ts) Per Cur. Walker v. Giles, 6 C. B. 662, 702. (a) Shep. Touch. 88; 1 Steph. Com. 464 ; and see Furnivall v. Coombes, 5 M. & G. 736. [But where the latter words are not repugnant but merely explanatory, they will be allowed to stand and have their intended operation. Jackson v. Ireland, 3 Wend. 99.] {b) Per Lord Mansfield, Eobinson v. Bland, 1 W. Bl. 256, 258 ; per Tindal C. J. Trimbey v. Vignier, 1 Bing. N. C. 151, 159 ; and see Fergusson v. Fyffe, 8 CI. & Fin. 121, 140 ; per Cur. in Melan v. Duke de Fitzjames, 1 B. & P. 138 ; and De la Vega v. Vianna, 1 B. & Ad. 284 ; [Lebel u. Tucker, L. R. 3 Q. B. 77 ; 2 Kent, 455, 457, 458; Blanchard u. Russell, 13 Mass. 1, 4, 5; Denny v. Williams, 5 Allen, 1, 3 ; Ferguson u. Clifford, 37 N. H. 96; Stevens v. Norris, 30 N. H. 466 ; Story Confl. Laws, §§ 270, 272, 278, 278 a. "It may be laid down," says Chancellor Kent, " as the settled doctrine of public law, that personal contracts are to have the same validity, interpretation, and obligatory force, in every other coun- try, which they have in the country where they were made." 2 Kent, 257, 258 ; Van Buskirk w. Warren, 34 Barb. 457; Hall v. Costello, 48 N. H. 176, 179. A contract, valid by the law of the place where it is made, is generally valid everywhere ; and so, on the other hand, a contract void by the law of the place where made, is generally void everywhere. Trimbey v. Vignier, 1 Bing. N. C. 151 ; Smith v. Godfrey, 28 N. H. 379 ; Thayer v. Elliott, 16 N. H. 102; Sessions v. Little, 9 N. H. 271 ; French v. Hall 9 N. H. 137 ; Dyer v. Hunt, 5 N. H. 401 ; Pickering u. Fisk, 6 Vt. 102; Thatcher u. Morris, 1 Kernan, 437 ; Pearsall v. Dwight, 2 Mass. 88 ; Greenwood v. Curtis, 6 Mass. 658 ; An- drews v. Pond, 13 Peters, 65 ; Thrasher v. Everhart, 3 Gill & J. 234 ; Andrews v. His Creditors, 11 Louis. 464; Brown u. Jfevitt, 27 Miss. 801 ; 2 Kent, 454, 458 ; Story Confl. Laws, § 242 ; Cammell v. Sew- ell, 5 H. & N. 728 ; Honghtaling o. Ball, 20 Mis. (55 Bennett) 563. And this is true in regard to contracts void by the law of the place where made, although they would have been held valid if made in the country where enforcement of them is sought. McAllister v. Smith, 17 111. 328. In general, however, no nation is bound by comity or otherwise to enforce or recognize any contracts which are injurious to its own interests, or to those of its citizens, or which are in fraud of its laws. Contracts which are against good morals, or against religion, or public rights, and contracts opposed to the national policy, or na- tional institutions, are deemed nullities in every country affected by such con- siderations. Story Confl. Laws, § 244 ; Smith v. Godfrey, 28 N. H. 379 ; Green- wood v. Curtis, 6 Mass. 358 ; part'cularly the opinion of Sedgewick J. in note to 6 Mass. 362 ; Winston v. Stodder, 8 Mar- tin, 95 ; DeSobrey v. De Laistre, 2 Harr. CONSTRUCTION OF CONTRACTS. 129 tion of the foreign state, whereby the contract may be affected, (c) Thus, in an action for money paid for the use of an infant, but not for necessaries, it appeared that the cause of action accrued in Scotland, and that the defendant was under age ; but it did not appear from the evidence, what was the law of Scotland in regard to the defendant's liability. And Lord Eldon said: "I hold myself not warranted in saying that such a contract is void by the law of Scotland, because it' is void by the law of England. The law of the country where the contract arose must govern the con- tract ; and what that law is should be given in evidence to me as a fact, (c 1 ) No such evidence has been given, and I cannot take the fact of what that law is without evidence." (c?) & J. 193; Thrasher „. Everhart, 3 Gill & J. 234 ; Hall v. Costello, 48 N. H. 176, 179.] (c) Di Sora v. Phillipps (in Dom. Proc), 33 L. J. C. 129; [10 H. L. Cas. 624.] (c 1 ) [Foreign laws are to be proved as facts ; and the question of their existence and interpretation, must be determined in each cause on the evidence adduced in it. McCormick v. Garnett, 5 De G., M. & G. 278 ; Fowler J. in Ferguson v. Clifford, 37 N. H. 98 ; 1 Greenl. Ev. § 486 ; Story Confl. Laws, §§ 637, 638 ; De Sobry v. DeLaistre, 2 Harr. & J. 193; Thrasher v. Everhart, 3 Gill & J. 234; Brackett v. Norton, 4 Conn. 517; Dyer v. Smith, 12 Conn. 384 ; Andrews v. Herriott, 4 Cowen, 515, 516, note ; Tyler v. Trabue, 8 B. Mon. 306; Territt v. Woodruff, 19 Vt. 182; Knapp v. Abell, 10 Allen, 488 ; Palfrey v. Portland, Saco & Portsmouth B. B. Co. 4 Allen, 56 ; Haven v. Foster, 9 Pick. 129, 130 ; Campion v. Kille, 1 Beasley (N. J.), 229 ; Talbot u. Seeman, 1 Cranch, 38 ; Church v. Hubbart, 2 Cranch, 187, 236, 237 ; Ennis v. Smith, 14 How. (U. S.) 426 ; In re Coppin, L. E. 2 Ch. Ap. 53, 54 ; 1 Dan. Ch. Pr. (4th Am. ed.) 95, 864. When the evidence consists of the parol testimony of experts as to the existence or prevailing construction of a foreign statute, or as to any point of unwritten foreign law, the jury must determine what the foreign law is, as in the case of any controverted fact depending upon like testimony. Kline v. Baker, 99 Mass. 254, 255 ; Holman o. King, 7 Met. 384; Dyer v. Smith, 12 Conn. 384 ; Moore v. Gwynn, 5 Ired. 187 ; Ingraham v. Hart, 11 Ohio, 255. And when the evidence admitted consists en- tirely of a written document, statute, or judicial opinion, the question of its con- struction and effect is for the court alone. Kline v. Baker, 99 Mass. 255 ; Di Sora v. Phillipps, 10 H. L. Cas. 624 ; Bremer v. Freeman, 10 Moore P. C. 306; Church v. Hubbart, 2 Cranch, 187 ; Ennis v. Smith, 14 How. (U. S.) 400; Owen v. Boyle, 15 Maine, 147 ; People v. Lambert, 5 Mich. 349; State v. Jackson, 2 Dev. 563; Thrasher v. Everhart, 3 Gill & J. 234 ; Pickard v. Bailey, 26 N. H. 169, 170; Hallw. Costello, 48 N. H. 179. In Fer- guson v. Clifford, 37 N. H. 98, Fowler J. said : " Foreign laws are to be proved as facts, by evidence addressed to the court, and not to the jury." Nesmith J. in Halln. Costello, 48 N. H. 179. See, also, Story Confl. Laws, §§ 638, 638 a ; Pick- ard v. Bailey, 26 N. H. 152, 169, 170. It is not necessary that the evidence of the foreign law should come from lawyers. It is sufficient, if the court is satisfied that the witness is well informed upon the snb- (d) Male v. Eoberts, 3 Esp. 163. As to ing a foreign law, see Benham v. Earl of giving evidence of a foreign law, see Baron Mornington, 3 C. B. 133 ; [Campion v. de Bode's case, 8 Q. B. 208. As to plead- Kille, 1 Beasley (N. J.), 229.] VOL. 1. 9 130 CONSTRUCTION OF CONTRACTS. But this rule admits of an exception : viz. when the parties, at the time of making the contract, had a view to a differ- ent kingdom ; for contracts are also to be considered according to the place where they are to be executed, (e) Thus, a bill of exchange payable in France is a foreign Rule in the case of a contract made in one 'try, erfor be performed in another. ject of the law to be proved. Pickard v. Bailey, 26 N. H. 152 ; Hall v. Costello, 48 N. H. 176; Brush v. Wilkins, 4 John. Ch. 520 ; Mauri u. Heffernan, 13 John. 58. Courts, in the absence of evidence to the contrary, will presume the foreign law to be the same as their own. Story Confl. Laws, §§ 637, 637 a ; Eussell u. Kitchen, 3 Ir. C. L. Rep. 613 ; Palfrey v. Portland, Saco & Portsmouth R. R. Co. 4 Allen, 56 ; Chase v. Alliance Ins. Co. 9 Allen, 311. See Scammell v. Sewell, 5 H. & N. 740, per Byles J. Foreign written law may be proved by parol evidence of a witness, learned in the law of a foreign country, without first attempting to obtain a copy of the law itself. Baron de Bode o. Reginam, 10 Jur. 217; S. C. 8 Q. B. 208. But see Genl. Sts. Mass. c. 131, § 65. The witness not only gives the words of the law, but the meaning - as applicable to the case in hand. Nelson v. Bridport, 10 Jur. 871 ; 8 Beav. 527, 554. A professional or official witness, giving evidence as to foreign law, may refer to foreign law books to refresh his memory, or to correct or confirm his opinion ; but the law itself must be taken from his evi- dence. The Sussex Peerage, 11 CI. & Fin. (Am. ed.) 85, and cases cited in note (3) ; In re Coppin, L. R. 2 Ch. Ap. 53, 54. In the Sussex Peerage, 11 CI. & Fin. 115, Lord Brougham said : " The witness may refer to the sources of his knowledge, but it is perfectly clear that the proper mode of proving a foreign law is not by show- ing to the House the book of the law ; for the House has not the organs to know and to deal with the text of that law, and, therefore, requires the assistance of a law- yer who knows how to interpret it." See Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 54; Ennis u. Smith, 14 How. (U. S.) 426-430 ; Cocks v. Purday, 2 Car. & K. 269. It is said to appear rather question- able whether the judge has a right to resort to the foreign law itself for informa- tion Where the evidence of the witness is not satisfactory. Lord Chelmsford in Di Sora u. Phillipps, 10 H. L. Cas. 640. In the same case, p. 633, Lord Cranworth said : " Where a written contract is made in a foreign country, and in a foreign language, the court, in order to interpret it, must first obtain a translation of the instrument; secondly, an explanation of the terms of art (if it contains any); thirdly, evidence of any foreign law appli- cable to the case ; and fourthly, evidence of any peculiar rules of construction, if any such rules exist by the foreign law. With this assistance the court must interpret the contract itself on ordinary principles of construction." See per Lord Chelms- ford, S. C. p. 639 ; Shore v. Wilson, 9 CI. & Fin. 511. In United States of Amer- ica u. McRae, L. R. 3 Ch. Ap. 86, where an act of congress was the subject under consideration, Lord Chelmsford, having re- marked that the assistance of a translator was not required, and that it was not sug- gested that there were any words in the act which bore " peculiar meaning different from the ordinary one, nor that the acts of the American legislature have a construc- tion peculiar to themselves, added : " I do not see that there is any impediment to an English judge with the act of congress before him, construing it for himself with- out further aid, just as he would an Eng- lish act of parliament." See Story Confl. Laws, § 638. For the recent provision made by statute in England to facili- tate the ascertainment of foreign law, see 2 Dan. Ch. Pr. (4th Am. ed.) 1142- 1146. For a further statement of the modes of proof of foreign laws, see Story Confl. Laws, § 639 el seq.] (e) Per Lord Mansfield, Robinson v. Bland, 1 W. Bl. 256, 259. See, further, CONSTRUCTION OF CONTRACTS. 131 bill, although it be actually made in England. And, due notice of dishonor being parcel of the contract, it is sufficient to entitle a party to recover on such a bill in this country, to show that he gave notice of dishonor according to the law of France. (/) And in the case of contracts of affreightment, if the contract does not provide otherwise, then, as between the parties _, r ... . Contracts of thereto, all questions arising under such contract in re- affreight- spect of sea damage and its incidents, are to be deter- mined by the law of the country to which the ship belongs. (17) And even as to contracts made in this country, there are cases in which regard must be had to the usage or custom of Local terms the place -where the contract was made, or to which it or P hrase3 - had reference, in order to discover the meaning and intention of the parties. (A) Where, therefore, it appeared, that in the place where a contract concerning a sale of cider was made, that word meant the juice of the apples as soon as it was expressed : it was held, that the contract must be construed to have been for a sale of Gibbs v. Fremont, 9 Exch. 25; Duncan v. Cannan, 23 L. J. C. 265 ; [Story Conn. Laws, § 280; Don v. Lippmann, 5 CI. & Fin. 1 ; Fergusson v. Fyffe, 8 CI. & Fin. 121 ; Bank of United States v. Donnally, 8 Peters, 271 ; Hill v. Spear, 50 N. H. 262 ; Wilcox v. Hunt, 13 Peters, 379 ; Andrews a. Pond, 13 Peters, 65 ; Thayer v. Elliott, 16 N. H. 102; Cox v. United States, 6 Peters, 203 ; Frazier v. WarfieM, 9 Sm. & M. 220 ; Powers v. Lynch, 3 Mass. 77, 80, 81 ; Prentiss v. Savage, 13 Mass. 20, 23 ; Penobscot & Kennebec R. R. Co. u. Bart- lett, 12 Gray, 244, 246, 247; Fanning v. Consequa, 17 John. 511 ; Lennig v. Ral- ston, 23 Penn. St. 137 ; Dacosta v. Davis, 4 Zabr. 319 ; Davis v. Clemson, 6 McLean, 622 ; Pomeroy v. Ainsworth, 22 Barb. 118. The rule stated in the text is subject to the qualification that it cannot prevail, or be obligatory, where the contract, in the form in which it is made, although to be performed in a foreign country, is held invalid or void by the law of the country where it is made. Pope v. Nickerson, 3 Story, 484. If a contract is to be per- formed partly in one country and partly in another, it is to be interpreted according to the laws of the country where the par- ticular parts are respectively to be per- formed or executed. Pope v. Nickerson, 3 Story, 484 ; Pomeroy u. Ainsworth, 22 Barb. 118.] (/) Rothschild v. Currie, 1 Q. B. 43, 49. This case is referred to here, merely as illustrating the proposition stated in the text. But the authority of the case itself has been questioned (see Story on Bills, § 296, and note; Chitty on Bills, 10th ed. 313, 321); and it is difficult to reconcile it with the decision of the privy council in Allen v. Kemble, 6 Moo. P. C. C. 514. In Hirschfeld v. Smith, however (L. Rep. 1 C. P. 340), the law, as laid down in Rothschild w.Currie, was followed ; and it is fully adopted in Byles on Bills, 10th ed. p. 396. [Sherrill ' eign stamp required a stamp, and was void for want of it: the court held, that the action could not be maintained in this country ; (r) and so it would be in any case where, for want of a stamp, a contract made in a foreign country is void, (s) But where, by the revenue laws of a foreign state, a document must be stamped merely in order to its being receivable in evidence in the courts of that state, the want of a stamp, in pursuance of the lex loci, forms no objection to its admissibility in evidence in this country : for our courts do not notice the revenue laws of any other state. And therefore, where an action was brought for money lent in France, and unstamped receipts were produced in proof of the loan, evidence to show that, by the law of France, such receipts . . . required stamps to render them valid, was rejected. (€) Assignee of ^ * j \ s Irish judg- And the assignee of an Irish judgment by cognovit ment. .,. ••,. / v may sue in this country m his own name, (u) It seems, however, that our courts will not afford redress on a (p) British Linen Company a. Drum- (s) Bristow v. Sequeville, 5 Exch. 275 ; mond, 10 B. & C. 903. [Satterthwaite v. Doughty, Bushbee, Law, (q) De la Vega v. Vianna, 1 B. & Ad. (N. C), 314. So in any case where the 284, overruling Milan i>. Duke de Fitz- contract is void by the law of the place james, 1 B. &P. 138; [Hinkley v. Marean, where made. Dacosta v. Davis, 4 Zabr. 3 Mason, 88; Titus v. Hobart, 5 Mason, (N. J.) 319 ; mite, 128, note (6).] 378; Story Conn. Laws, §§ 568, 570- (*) Bristow v. Sequeville, 5 Exch. 275 ; 572, 574 b-574 d ; Woodbridge v. Wright, James v. Cuthcrwood, 3 D. & R. 190. 3 Conn. 523; Wood v. Malin, 5 Halst. (u) O'Callaghan v. Marchioness of Tho- 208; Morris v. Eves, 11 Martin (La.), mond, 3 Taunt. 82; [Story Confl. Laws, 730 ; 2 Kent, 462.] §§ 355, 565, 066, 566 a, 567 ; Foss v. Nut- (r) Alves v. Hodgson, 7 T. R. 241 ; and ting, 13 Gray, 484 ; Folliott v. Ogden, 1 H. see Clegg v. Levy, 3 Camp. 166. But the Bl. 123 ; Pearsall v. Dwight, 2 Mass. 90 ; foreign law must be clearly proved by the Raymond v. Johnson, 11 John. 488 ; Rich- party objecting, lb.; Miller i». Keinrick, 4 ardson v. Now York Central R. R. Co. Camp. 155. See Bire v. Moreau, 2 C. & 98 Mass. 92; Graves v. Weeks, 19 Vt P. 376. . 178.1 CONSTRUCTION OF CONTRACTS. 135 contract made abroad, if it be expressly stipulated in such contract that no proceeding thereon shall be taken in a foreign Cases in country. Thus, in Johnson v. Machielsen, (x) which was Courts' will an action for seamen's wages, it appeared that the crew contract"™ & were foreigners, and had agreed in their own country made abroad. " that they would not in foreign parts prosecute payment of any money whatever of the captain, but be satisfied with what he might be pleased to advance them abroad in deduction of their wages." It was contended, that the jurisdiction of our courts could not be ' thus excluded ; but Lord Ellenborough said, " If this were merely the regulation of a foreign government, I should leave that govern- ment to enforce it by punishing the infraction of it, or by any other means that might be more effectual. But by the personal contract between the individuals before the court, it is expressly stipulated that the mariners shall not sue the captain for wages in foreign parts. It is impossible for me to say that this stipulation is void. There may be great reason for protecting the captain from suits in foreign countries, where he may have no funds to answer the de- mands of the mariners ; and it may be conducive to the interests of commerce, that the mariners should have the strongest induce- ment to remain in the ship till the adventure is completed. The rate of wages might be in part determined by the condition, that they were not demandable till the ship's return home. The agree- ment was made abroad, but it is transitory ; and we are bound, as far as we are able, to give it the same construction and effect which it would receive in the country where it was made." So, it would appear, that if a foreign law of limitation extin- guished, not merely the remedy on a contract, but the right or contract itself, the courts of this country would take notice that this was so, and give effect thereto. («/) And it seems that where money is due upon a contract, it is to be paid according to the currency of the place or country Mode of in which it is stipulated that the payment shall be Payment. made. (2) (x) 3 Camp. 44; Giener v. Meyer, 2 H. (z) Story's Conn, of Laws, § 272 a, [§ ■pi g 03 308 etseq.] ; and see Scott v. Beavan, 2 B. , (y) Huber v. Steiner, 2 Scott, 304, 327 ; & Ad. 78 ; [Grant v. Healey, 3 Sumner, [Story Confl. Laws, §§ 582-582 c; Shelby 523. Alienations of personal property are v. Guy, 1 Wheat. 361, 371, 372 ; Carrier ». governed by the law of the place where Page, 8 "Vt. 146 ; Way v. Sperry, 6 Cush. made. Van Buskirk v. Hartford Fire Ins. 238 /Bulger v. Roche, 11 Pick. 36.] Co. 14 Conn. 583 ; Smith v. Godfrey, 28 136 CONSTRUCTION OF CONTRACTS. 7th. Another rule is, that a deed or other instrument shall be „ , taken most strongly against the grantor or contractor. (z l ~) Verba carta- & J & & v ^ mm fortius Thus, if tenant in fee simple grant to any one *' an accipiuntur „ ,, . . f? ' contra pro- estate tor life, generally, it shall be construed an estate for the life of the grantee, (a) So, if two tenants in common grant a rent of ten shillings, this is several, and the grantee shall have ten shillings from each ; but if they make a lease, and reserve ten shillings, they shall have only ten shillings between them. (5) So, in the case of guaranties, if there be any doubt, the N. H. 379; Eerguson v. Clifford, 37 N. H. 96, 100. Effect is to be given to a con- tract according to the law, at the time it was made. McKissick v. McKissick, 6 Humph. 75.] (z 1 ) [Donnell u. Columbian Ins. Co. 2 Sumner, 366, 380, 381 ; Palmer v. Warren Ins. Co. 1 Story, 360, 364, 365; Chapman v. Dalton, Plowd. 289 ; Thrall o. Newell, 19 Vt. 202; Mayer v. Isaac, 6 M. & W. 612; Charles River Bridge v. Warren Bridge, 11 Peters, 589; Melvin v. Propri- etors of Locks and Canals on Merrimack River, 5 Met. 27 ; Mills v. Catlin, 22 Vt. 98 ; Winslow v- Patten, 34 Maine, 25 ; Lincoln v. Wilder, 29 Maine, 169 ; Pike v. Munroe, 36 Maine, 309; Evans v. San- ders, 8 Porter, 497 ; Windham's case, 5 Rep. 7 b ; Cocheco Man. Co. a. Whittier, 10 N. H. 305; Jackson v. Blodget, 16 John. 172. A written instrument, the true import of which is doubtful, and the intention of the parties to which cannot be determined from its language, will be construed most strongly against the person using the doubtful language, and in favor of him who has been misled and advanced his money upon it. Thus, where one is authorized to draw drafts on another, " at ten or twelve days," with nothing to indi- cate whether ten or twelve days after date or after sight is meant, he may exercise his own discretion and consult his own convenience in that particular. Barney v. Newcomb, 9 Cush. 46.] (a) 2 Bl. Com. 380, citing Co. Litt. 42. Blackstone draws a distinction between an inden ture and a deed-poll ; " for the words of an indenture, executed by both parties, are to be considered as the words of them both ; for though delivered as the words of one party, yet they are not his words only, because the other party has given his con- sent to every one of them. But in a deed- poll executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him. Co. Litt. 134." [This distinction, how- ever, between deeds-poll and indentures, in regard to construction, is rather appar- ent than real. The true rule is stated in the text ; the words of the grantor, con- tractor, or covenantor, shall be taken most strongly against himself in cases of doubt, whether they occur in a deed-poll or in an indenture. See Browning v. Wright, 2 Bos. & Pul. 22 ; Cardigan u. Armitage, 2 B. & C. 197 ; Jackson v. Hudson, 3 John. 387 ; Palmer v. Warren Ins. Co. 1 Story, 360 ; Donnell u. Columbian Ins. Co. 2 Sumner, 366, 380, 381.] In the case of crown grants, &c. the rule of construction is said to be, that the instrument shall be taken most favorably for the king. J. Chitty, jun. on Prerogatives of the Crown, 391 ; [Jackson v. Reeves, 3 Caincs, 393. Where privileges have been granted by charter, the construction in case of doubt should be against the grantee. Stockton Railway Co. v. Barrett, 11 CI. & Fin. 590 ; Stourbridge Con. Co. v. Wheeler, 3 B. & Ad. 792 ; Parker v. Great Western Rail- way Co. 7 M. & G. 253; Mohawk Bridge Co. v. Utica & Schn. R. R. Co. 6 Paige, 554.] (6) 5 Co. 7 b; Plowd. 289 b; Co. Litt. 197 a; 267 b. CONSTRUCTION OF CONTRACTS. 137 contract shall be construed most strongly against the party who becomes bound, (c) And the same rule holds in the case of an exception in a lease ; so that, if there be any doubt about the meaning of the exception, the words thereof, being the words of the lessor, are to be construed favorably for the lessee, and against the lessor. (cT) So if a carrier give two different notices, limiting his responsi- bility in cases of loss of goods, he is bound by that which is least beneficial to himself, (e) So, a notice under which a party claims a general lien is to be construed most unfavorably to himself. (/) So, if an instrument be made in terms so ambiguous as to make it doubtful whether it be a bill or a note, the holder may, as against the maker of the instrument, treat it as either at his election. (. Hopkinson, 3 D. & R. 507. an agreement between themselves, and a (/) Purley d. Mayor of Canterbury v. co-surety, liable to contribution. Westonv. Wood, 1 Esp. 198; Run. Eject. 112; Chamberlin, 7 Cush. 404 ; Cobb v. O'Neal, Adams, Eject. 3d ed. 145. 2 Sneed (Tenn.), 428. See Smith v. (g) Per Tindal C. J. Smith a. Walton, Doak, 3 Texas, 215 ; Davis v. Barrington, 8 Bing. 235, 238. 30 N. H. 517 ; Barry v. Ransom, 2 Kernan, (h) Doe d. Spicer v. Lea, 11 East, 312, 402.] 313 ; Smith v. Walton, 8 Bing. 235, 238. (b) Manley v. Boycott, 2 E. & B. 46. See Doe 0. Hopkinson, 3 D. & R. 508, 509. A WRITTEN CONTRACT. 147 the case of the "Boydell Shakspeare." (i) So, an agreement re- ferring to such parts of another instrument as had been read by one party to another, is not sufficient within the statute, because it is imperfect without parol evidence. (&) But, if such reference exist, several writings upon the same subject, and intended to form one agreement, shall be construed and treated as such. (I) But, although parol evidence cannot be given to vary or contradict a written instrument, it is allowable, in some cases, to General Tale give evidence to explain such an instrument. The rule as t0 the ad - , . -, . . tit mission of on this subject was thus stated by the late Lord Chief parol evi- Justice Tindal : (ni) " The general rule I take to be pfal^a writ that, where the words of any written instrument are teu coutract - free from ambiguity in themselves, and where external circum- stances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves ; and that, in such case, evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties, is utterly inad- missible. (m 1 ) .... The true interpretation, however, of every instrument, being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascer- tained by evidence dehors the instrument itself ; (m 2 ) for both (i) Boydell v. Drummond, 11 East, v. Hill, 2 Fairf. 434; Meriden Britannia 142 ; Jackson v. Lowe, 1 Bing. 9 ; Stead v. Co. v. Zingsen, 48 N. Y. 247 ; Mprss v. Liddard, 1 Bing. 196 ; [ante, 96, note («)•] Salisbury, 48 N. Y. 636.] (k) Brodie v. St. Paul, 1 Ves. jun. (m) See Shore v. Wilson, 9 C. & F. 355, 326. 365. (1) lb.; per Bayley J. Sandilands v. (m 1 ) [Sayre v. Peck, 1 Barb. 464 ; Mor- Marsh, 2 B. & Aid. 673, 680 ; Hare v. ris v. Edwards, 1 Ohio, 206 ; Attorney Richards, 5 M.& P. 35; [ante, 126, note (t); General v. Clapham, 4 De G., M. & G. Makepeace v. Harvard College, 10 Pick. 591.] 302; Sibley v. Holden, 10 Pick. 250; (m 2 ) [Mayor of New York v. Butler, 1 Hunt v. Livermore, 5 Pick. 395 ; Davlin Barb. 325 ; Lowry ». Adams, 22 Vt. 160 ; 148 PAROL EVIDENCE TO EXPLAIN reason and common sense agree, that by no other means can the language of the instrument be made to speak the real mind of the party. Such investigation does of necessity take place in the in- terpretation of instruments written in a foreign language ; in the case of ancient instruments ; .... in cases where terms of art or science occur ; (m 3 ) in mercantile contracts, which in many in- stances are in a peculiar language employed by those who are conversant in trade and commerce ; and in other instances in which the words, besides their general common meaning, have acquired, by custom or otherwise, a well-known peculiar, idiomatic meaning, in the peculiar county in which the party using them was dwell- ing, or in the particular society of which he formed a member, and in which he passed his life." (n) In such cases as these, it has been well said, " the oral evidence does not usurp the authority -of the written instrument ; it is the instrument which operates : ■the oral evidence does no more than assist its operation, by as- signing a definite meaning to terms capable of such explanation, or by pointing out and connecting them with the proper subject- matter, (o) According to these principles, parol evidence is never admissible Not admissi- to explain a patent ambiguity, that is, an ambiguity ofVafenT 8 which is not raised by extrinsic facts, (p) Thus, upon ambiguity. a . Brown, 98 Mass. 545; Stoops v. Smith, 100 Mass. 63, and the cases cited ; Putnam v. Bond, 100 Mass. 58; Miller v. Stevens, 100 Mass. 518; Pike v. Fay, 101 Mass. 134; 1 Sugden V. & P. (8th Am. ed.) 169, 170, notes (y) and (z) ; Brown v. Brown, 8 Met. 576.] («) Bac. Elem. rule 23 ; Plowd. 85 b. {x) Jones v. Newman, 1 Bl. R. 60. (y) Doe v. Burt, 1 T. R. 701. See Kearslake v. White, 2 Stark. 508; Beau- mont v. Field, 1 B. & Aid. 247 ; Paddock u. Fradley, 1 C. & J. 90. [See Hammond v. Ridgley, 5 Harr. & J. 255 ; Lowell v. Parkhurst, 4 Wend. 369. Parol evidence is admissible to ascertain the parties and the subject-matter. Clayton v. Lord Nu- gent, 13 M. & W. 207 ; Doe v. Webster, 12 Ad. & El. 442 ; Waterman v. Johnson, 13 Pick. 261 ; Bradley v. Wash. A. & G. Steam Packet Co. 13 Peters, 89, 97; Sar- gent v. Adams, 3 Gray, 72 ; Gerrish v. Towne, 3 Gray, 82.] (y 1 ) [Huntington v. Knox, 7 Cush. 371, 374 ; Winchester v. Hunter, 97 Mass. 303, 305 ; Hunter v. Giddings, 97 Mass. 41 ; Eastern Railroad v. Benedict, 5 Gray, 561; Lerned v. Johns, 9 Allen, 419; Cothay v. Fennell, 10 B. & C. 671 ; Hub- bert v. Borden, 6 Whart. 79. But see Long v. Colburn, 11 Mass. 97; Stackpole v. Arnold, 11 Mass. 27; Magill v. Hins- dale, 6 Conn. 464 ; Wright v. Weakley, 2 Watts, 89.] 150 PAROL EVIDENCE TO EXPLAIN action is brought against a party who appears, on the face of the instrument, to be personally a contracting party, he cannot discharge himself by evidence that he contracted as agent merely, (z) And, where a party was described on the face of a contract " as owner " of a ship, he being, in fact, merely the agent of the owner ; it was held in an action by the principal on such contract, that evidence could not be received to show the fact of the agency, so as to give the principal a right to sue on the contract, (a) But it would seem that, where a person describes himself in a written instrument as the agent of an unnamed principal, it is competent for the other contracting party to show that, although described as agent, he is in fact the principal. (5) So, parol evi- dence may be given to show, that a written guaranty addressed to one person was meant to create a responsibility to a firm in which he was partner, (c) So, parol evidence has been admitted to show, that a person whose name appeared on an invoice as the seller of certain goods, was not in fact the person with whom the contract of sale was made. (<2) And a general receipt on a bill of exchange may also be explained by parol, (e) (z) Higgins v. Senior, 8 M, 4 W. 834, 844 ; Jones v. Littledale, 6 A. & E. 486, 490 ; Magec v. Atkinson, 2 1.4 W. 440 ; and see Bateman v. Phillips, 15 East, 272; Wilson u. Hart, 7 Taunt. 295; [Huntington ... Knox, 7 Cush. 371,374; Hancock v. Fairfield, 3 Maine, 299 ; Chap- pell u. Dunn, 21 Barb. 17; Williams v. Christie, 4 Duer, 29.] (a) Humble v. Hunter, 12 Q. B. 310 ; [Winchester v. Howard, 97 Mass. 303, 305.] (6) See Carr v. Jackson, 7 Exch. 382 ; 21 L. J. Exch. 137 ; Schmalz v. Avery, 16 Q. B. 655 ; 20 L. J. Q. B. 228. (c) Garrett v. Handley, 4 B. & C. 664. (d) Holding v. Elliott, 5 H. & N. 117. (e) Graves v. Key, 3 B. & Ad. 313. [A writing acknowledging the receipt of money may be explained by showing that something short of the terms of it was intended, it being conclusive only as to the amount paid ; for a receipt is not evidence of a contract, but of payment. Tucker v. Maxwell, 11 Mass. 143 ; Johnson v. John- son, 11 Mass. 359, 363 ; Johnson v. Weed, 9 John. 310 ; Putnam v. Lewis, 8 John. 304 ; Babcock v. May, 4 Ham. 346 ; Ray- mond v. Roberts, 2 Aiken, 204 ; South- wick v. Hayden, 7 Cowen, 334 ; Tobey v. Barber, 5 John. 72 ; Wilkinson v. Scott, 17 Mass. 249; Hall v. Hall, 8 N. H. 129 ; King u. Hutchins, 28 N. H. 561, 575. Bills of parcels have in some cases been held to stand on the same footing as re- ceipts, and to be always open to evidence to prove the real terms upon which the agree- ment of sale was made between the par- ties. These, it is said, form an exception to the general rule of evidence, being in- formal documents, intended only to specify prices, quantities, and a receipt of pay- ment, and not used or designed to em- body or set out the terms and conditions of a contract of bargain and sale. Hazard v. Loring, 10 Cush. 267 ; Schenck v. Saunders, 13 Gray, 37, 41, 42 ; Wallace v. Rogers, 2 N. H. 506 ; Bradford v. Manly, 13 Mass. 139; Fletcher v. Willard, 14 Pick. 464 ; Harris v. Johnston, 3 Cranch, 311 ; Hildreth v. O'Brien, 10 Allen, 104 ; Stacy v. Kemp, 97 Mass. 168. Parol evi- A WRITTEN CONTRACT. 151 So, where a guaranty was expressed to be in consideration of the plaintiff " having this day advanced " a sum of money ; it was held to be sufficiently ambiguous to admit of evidence to show, that the advance was not a past one, but was made simultaneously with the execution of the guaranty. (/) So, where a contract was in these words : " Sold 18 pockets Kent hops, at 100s. ; " and it appeared that a pocket contained more than a cwt. ; evidence was admitted to show that, by the usage of trade, a contract so worded was understood to mean bl. per cwt. (#) "So, where a corn merchant in Ireland sent written instructions to a factor and del credere agent in London, to sell oats of a certain quality, at a certain price, on his, the merchant's account : it was held, that evidence was ad- dence has been held admissible to explain and qualify a warranty contained in a bill of parcels. See Wallace v. Rogers, 2 N. H. 506 ; Hogins v. Plympton, 1 1 Pick. 99 ; Lamb v. Crafts, 12 Met. 353; Henshaw v. Eobins, 9 Met. 83, 87 ; Pike v. Fay, 101 Mass. 136, 137. A bill of sale of a horse, containing also a receipt for the payment of the price, does not exclude parol evi- dence, that the vendor, at the time of the sale, warranted the horse sound. Hcrsom v. Henderson, 21 N. H. 224 ; Eilkins v. Whyland, 24 Barb. 379. So a transfer of personal property may be shown by parol evidence to have been only a pledge, although accompanied by a bill of parcels in this form: "A. B. bought of C. D." (certain goods described). " Received pay- ment, C. L\" Hazard v. Loring, 10 Cush. 267 ; Whitaker v, Sumner, 20 Pick. 399. A paper, however, purporting to be a re- ceipt, but containing in truth a complete contract between the parties to it, cannot be explained by parol, as can be more general receipts for property or money. Stone v. Vance, 6 Ham. 247 ; Niles u. Culver, 8 Barb. 205 ; Batturs v. Sellers, 5 Harr. & J. 117 ; S. C. 6 Harr. & J. 249 ; Chapman v. Searle, 3 Pick. 38 ; Goodyear v. Ogden, 4 Hill, 104. But a bill of lading, in the usual form, is both a receipt and a promise ; and so far as it is a receipt, in a suit between the parties to it, being the skipper and the master who signed the bill for the delivery of the goods, it is com- petent for the master to show that the quantity of goods received was less than that acknowledged in the bill. O'Brien v. Gilchrist, 34 Maine, 554 ; Dickersou v. Ledge, 12 Barb. 102; Wayland v. Mosely, 5 Ala. 430 ; McTyer v. Steele, 26 Ala. 487 ; Grimes v. Harwood, 9 Barb. 447 ; Bissel v. Price, 16 1)1.408; Shepherd v. Naylor, 5 Gray, 591 ; Sutton v. Kettell, 1 Sprague, 309 ; Wolfe v. Myers, 3 Sandf. 7. So it may be shown by parol that the goods, though admitted in the bill of lad- ing to have been " in good order," were not in fact in good order when received. Ellis a. Willard, 5 Selden, 529 ; Barrett u. Rogers, 7 Mass. 297 ; Clark v. Barn- well, 12 How. (U. S.) 272. Where, how- ever, a bill of lading imports that the goods are stowed under deck, it cannot be varied by a contemporaneous parol contract by which they were to be stowed on deck ; nor can such a bill be contradicted as to the course designated in it which the vessel is to take. Creesy v. Holly, 14 Wend. 26 ; Barber v. Brace, 3 Conn. 9 ; May v. Babcock, 4 Ham. 334 ; Barrett v. Rogers, 7 Mass. 297 ; Sayward v. Stevens, 3 Gray, 97; Ellis v. Willard, 5 Selden, 529, 531; Fitihugh v. Wiman, 5 Selden, 559.] (/) Goldshede v. Swann, 1 Exch. 154. (g) Spicer v. Cooper, 1 Q. B. 424; [Mil- ler v. Stevens, 100 Mass. 518 ; per Creswell J. in Sarl«. Bourdillon, 1 C. B. N. S. 186.] 152 PAROL EVIDENCE TO EXPLAIN missible to show that, by the custom of the London corn trade, the factor was warranted by such instructions in selling in his own name. (A) So, where there is a variance between a bought and a sold note, evidence of mercantile usage is admissible to explain it. (i) So, evidence is admissible to explain the meaning of a warranty given on a sale of goods. (&) So, where a charter-party stipulated, that the ship should proceed to the Tyne, " and, on arrival there, be ready forthwith in regular turns of loading, to take on board" a cargo of coals and coke: it was held, that evidence was admissible to show what was meant by " regular turns of load- ing," according to the usage of the ports on the Tyne. (7) And where a theatrical manager contracted with an actress, to eno-aee her for " three years " at a certain salary ; it was held that parol evidence might be given to show that, according to the uniform usage of that profession, the plaintiff was to be paid only during the theatrical season in each of those years, (ni) So there are cases in which evidence may be given of the actions of the parties previous to or contemporaneous with the agreement, in order to show their intention, or to explain the agreement, by directing its application ; (ri) e. g. if a bargain were made for wheat, without stating the quality, parol evidence of former deal- ings for a particular quality of wheat would perhaps be admissi- ble, (o) So, where the defendant, by a contract in writing, purchased of the plaintiffs a quantity of wool, which was described in the con- tract as " your wool"; it was held that evidence of a previous conversation between the parties might be given, for the purpose of showing what they meant by the term " your wool."(j?) (h) Johnston v. Usborn, 11 A. & E. 549. (p) Macdonald v. Longbottom, 1 E. & (<') Bold u. Rayner, 1 M. & W. 343; E. 978, 987. [Itwas held, in Hart v. Ham- Kempson v. Boyle, 3 H. & C. 763. mett, 18 Vt. 127, that where technical (k) Powell v. Horton, 3 Scott, 110. words are used in a written contract, parol (1) Leidemann v. Schultz, 14 C. B. 38; evidence is admissible to show their mean- 23 L. J. C. P. 17. ing ; and if it thereby appears that the (m) Grant v. Maddox, 15 M. & W. words used may have different applica- 737. See, further, Myers v. Sari, 3 E. & E. tions, parol evidence is admissible to prove 306. what was suid by the parties at the time of (») See Ellis v. Thompson, 3 M. & W. the execution of the written agreement, 445 ; Reay v. Richardson, 2 Cr., M. & R. for the purpose of showing the sense in 422, 426. which they understood the words. Gray (o) 1 Powell on Cont. 272, 273, 384 ; 2 „. Harper, 1 Story, 574; Hill v . Rewee, lb. 41 ; [Bourne v. Gatliff, 11 CI. & Fin. 11 Met. 268. So where there was a writ- 45.] ten agreement to pay the plaintiff " fifty A WRITTEN CONTEACT. 153 So parol evidence has been admitted, to prove that a written instrument is wrongly dated. (^) And it has been held that, where a written instrument has no date, parol evidence may be given to show from what time it was intended to operate, (r) It has been suggested, (s) that parol evidence would probably be admissible, to supply a blank in an agreement not falling whenadmis- within the statute of frauds : as if a written bargain ^written were made for the sale of goods under 10?., leaving a contract. blank for the quantity to be delivered. Nor does it seem that there could be any objection to this ; because, until the quantity of goods to be sold was stated in some way, there would be no contract at all, so that the rule of which we are now treating would not be in- fringed. Indeed, in a recent case, where the defendant ordered goods by letter, which did not mention the time for payment, and the plaintiff sent the goods and an invoice : it was held that, the letter not being a valid contract within the statute of frauds, parol evidence was admissible to show that the goods were supplied on credit, (t) But, if the contract of the parties be once reduced into writing, then the rule applies : and whether it be a contract When not. which is required by the statute of frauds to be in writing or not, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made, , or during the time that it was in a state of preparation, so as to add to, or subtract from, or in any manner to vary or qualify the written contract, (m) Thus, if a written demise be silent as to ground dollars for inserting business card on (q) Jayneu. Hughes, 10 Ex. 430 ; Hall two hundred copies of his advertising v. Cazenove, 4 East, 476. chart to be paid when the chart is pub- (r) Davis v. Jones, 17 C. B. 625 ; 25 L. lished ; " for the interpretation of the con- J. C. P. 91. tract, and its application to the subject- (s) Ph. Ev. 8th ed. 521. matter in an action upon it, parol evidence (t) Lockett v. Nicklin, 2 Exch. 93. was held admissible to show that at the («) Eden v. Blake, 13 M. & W. 614, 617, time of the making of the agreement the 618; per Parke B. Lockett v. Nicklin, 2 plaintiff represented and promised that his Exch. 93,97; per Lord Denman C. 3. advertising chart should be composed of a Goss u. Lord Nugent, 5 B. & Ad. 58, 64 ; certain material and be published in a cer- Meres u. Ansell, 3 Wils. 275 ; Powell v. tain manner. Stoops v. Smith, 100 Mass. Edmonds, 12 East, 6 ; per Best C. J. 63, and the cases cited in the opinion by Morley v. Boothby, 3Bing. 107, 112; Lewis Mr. Justice Wells. See Miller v. Stevens, v. Jones, 4 B. & C. 506 ; [Ridgway v. Bow- 100 Mass. 518 ; Swett v. Shumway, 102 man, 7 Cush. 268 ; Carter v. Hamilton, 11 Mass. 365 ; Pike v. Eay, 101 Mass. 134.] Barb. 147. Whatever may have been the 154 PAROL EVIDENCE TO EXPLAIN rent, (#) or land-tax, (jf) parol evidence is not admissible, even in equity, to show that the tenant agreed to pay it. So, if an annuity deed do not contain a clause of redemption, it cannot be proved, orally, that such clause was omitted only lest it should render the transaction usurious ; or that it was agreed that it should be re- deemed on terms. (2) So, where there is a sale by auction, and the contract is reduced into writing, — as by the auctioneer signing a memorandum of the sale in a book which contains or refers to the catalogue and conditions of sale, — evidence of verbal declarations by the auctioneer, varying the statements contained in the catalogue or conditions, are not admissible, (a) But, if the contract be not reduced into writing, such declarations are receivable in evidence. (5) " Where the whole matter passes in parol, all that passes may sometimes be taken together, as form- ing ' parcel of the contract, though not always ; because matter talked of at the commencement of a bargain may be excluded by the language used at its termination. But if the contract be in the end reduced into writing, nothing which is not found in the writing can be considered as a part of the contract." (c) After an agreement has been reduced into writing, however, it _ ,, , is, by the rules of the common law, competent to the Evidence of • . L waiver at parties at any time before breach of it, by a new con- common law. . . . . . , . . VI tract not m writing, either altogether to waive, dissolve, »or annul the former agreement, or in any manner to add to or subtract from, or vary or qualify the terms of it, and thus to make a new contract, which is to be proved, partly by the written previous conversations and verbal commu- Quincy, 4 Greenl. 497 ; Taylor v. Riggs, nications between the parties, if they at 1 Peters (U. S.), 591 .] last reduce their agreement to writing, this (x) Preston v. Merceau, 2 Bl. R. will be looked upon to contain all that the 1249. parties intended should form any part of (y) Rich u. Jackson, 4 Bro. C. C. 514; their bargain ; and everything said respect- S. C. 6 Ves. 334, note. ing the transaction in the previous conver- (z) Lord Irnham v. Child, 1 Bro. C. C. sations, and not incorporated into the 92; Portmore v. Morris, 2 lb. 219; written agreement, will be considered as Haynes v. Hare, 1 H. Bl. 695. intentionally rejected. Kain u. Old, 2 B. (a) Shelton v. Livius, 2 C. & J. 411 ; & C. 634 ; Preston v. Merceau, 2 Wm. Bl. Powell v. Edmonds, 12 East, 6 ; Gunnis v. 1249 ; Carter v. Hamilton, 11 Barb. 147 ; Erhart, 1 H. Bl. 289. Hakes a. Hotchkiss, 23 Vt. 231 ; Wyrin (6) Eden v. Blake, 13 M. & W. 614. v. Cox, 5 Geo. 373 ; 1 Sugden V. & P. (c) Per Abbott C. J. Kain v. Old, 2 B. (8th Am. ed.) 158, and note (d 1 ) ; Pitcher & C. 627, 634; Flinn v. Tobin, 1 M. & M. v. Hennessey, 48 N. Y. 415 ; Small v. 367 ; Lewis v. Jones, 4 B. & C. 506. A WRITTEN CONTRACT. 155 agreement, and partly by the subsequent verbal terms engrafted on what will then be left of the written agreement. (d~) Whether a contract within the statute of frauds can be wholly waived and abandoned,.before breach, by a subsequent i n contracts agreement not in writing, appears to be vexata qucestio.(e) ™*™ ^ In Goss v. Lord Nugent, (/) the court inclined to the frauds - opinion that it might. But it is clear that, where the contract is one which the statute of frauds requires to be in writing, and, after it has been reduced into writing, new terms are agreed upon, such new terms must likewise be reduced into writing, otherwise they cannot operate to vary or rescind the original contract. (#) (d) Per Cur. Goss v. Lord Nugent, 5 derbilt, 1 Dutch. (N.J.) 482. Where a, B. & Ad. 58, 65 ; Granville v. Duchess of place of performance has been fixed upon Beaufort, 1 P. W. 114; 2 Vern. 648. See White v. Parkin, 12 East, 578 ; [Boyce v. M'Culloch, 3 Watts & S. 429 ; Raffens- berger, 28 Penn. St. 426 ; Brewster «. Countryman, 12 Wend. 446 ; Richardson v. Cooper, 25 Maine, 450, 452 ; Howard v. Wilmington & Susq. R. R. Co. 1 Gill, 311; Cummings o. Arnold, 3 Met. 491 ; Rogers v. Atkinson, 1 Kelly, 12; Neil v. Cheves, 1 Bailey, 537 ; Franklin v. Long, 7 Gill & J. 407 ; Munroe v. Perkins, 9 Pick. 298; Cummings v. Putnam, 19 N. H. 569; Heatherlyv. Record, 12 Texas, 49 ; Coates v. Sangston, 5 Md. 121 ; Good- rich u. Longley, 4 Gray, 383 ; McGrann o. North Lebanon R. R. Co. 29 Penn. St. 82; 1 Sugden V. & P. (8th Am. ed.) 158, and note (e). A subsequent oral agreement to postpone the time of delivery of articles under an agreement without a seal, is not a waiver of the agreement, but only an enlargement of the time for its perform- ance. Watkins u. Hodges, 6 Harr. & J. 28 ; 1 Greenl. Ev. § 304 ; Clement v. Dur- gin, 5 Greenl. 9 ; Robinson v. Bachelder, 4 N. H. 40. So in the case of a sealed con- tract, the time of performance fixed by it may be enlarged by a writing not under seal, or by parol, and the remainder of the contract will be governed by the terms of the sealed instrument. Stone v. Sprague, 20 Barb. 509 ; Barker v. Troy & Rutland R. R. Co. 27 Vt. 766 ; Clark v. Dales, 20 Barb. 42 ; McGrann v. North Lebanon R. R. Co. 29 Penn. St. 82 ; Stryker v. Van- in a written contract, it may be changed by parol. So where the written contract does not provide for the place of perform- ance, a place may be agreed upon by parol. Miles v. Roberts, 34 N. H. 245. As to the effect upon the written contract of an oral alteration of its terms, see Vickary a. Moore, 2 Watts, 451, 456, 457 ; Lawall v. Rader, 24 Penn. St. 314 ; Millard v. Bald- win, 3 Gray, 484, 486 ; McGrann v. North Lebanon R. R. Co. 29 Penn. St. 82 ; Dana v. Hancock, 30 Vt. 616; Mead v. Degol- yer, 16 Wend. 532; Marks v. Robinson, 1 Bailey, 89 ; Mill Dam Eoundry v. Hovey, 21 Pick. 417,428, 429 ; Blasdell v. Souther, 6 Gray, 151; Spangler v. Springer, 22 Penn. St. 454.] (e) Harvey v. Grabham, 5 A. & E. 61, 73 ; Goss v. Lord Nugent, 5 B. & Ad. 58. [See 1 Greenl. Ev. § 304; Bullard v. Walker, 3 John. Cas. 60 ; Marshall v. Baker, 19 Maine, 402.] (/) Per Cur. 5 B. & Ad. 58, 66; and see Goman v. Salisbury, Vern. 240. (g) Noble v. Ward, L. R. 1 Ex. 117; (in Cam. Scac.) 2 lb. 135; Moore v. Campbell, 10 Exch. 323, 332 ; Goss o. Lord Nugent, supra; Stead v. Dawber, 10 A. & E. 57 ; Marshall v. Lynn, 6 M. & W. 109, overruling Cuff v. Penn, 1 M. & S. 21 ; [Emmet v. Dewhurst, 3 Mac. & G. 587, note (1), 596, 597 ; Danau. Hancock, 30 Vt. 616 ; Ogle v. Vine, 7 B. & S. 855 9 B. & S. 182 ; L. R. 2 Q. & B. 275 ; L. R. 3 Q. & B. 272. The law is settled other- 156 PAROL EVIDENCE TO EXPLAIN custom or usage. And so, in the case of a deed, a subsequent agreement, not under _ seal, dispensing with, or varying the time or mode of Deeds. ' . ° " i i i performing an act covenanted to be done, cannot be pleaded in bar to an action on the deed, for non-performance of the act in the manner prescribed. (K) Again : in many cases evidence of custom and usage is admis- „ ., , sible, for the purpose of annexing incidents to the terms Evidence of . . . of a written contract, concerning which the contract itself is entirely silent, (i) But where evidence of custom or usage is admitted, to add to, or in any manner to affect the construction of a written contract, it is admitted only on the ground that the parties who made the con- tract were both cognizant of the usage, and must be presumed to have made their agreement with reference to it. (&) And this rule is, likewise, subject to the qualification — that the Limitations peculiar sense which it is proposed, by the evidence, to admissibility attacn to the words of the contract, must not be incon- of ' sistent, either expressly or by implication, with the terms of the written instrument. (T) wise in Massachusetts. In that state parol evidence is admitted to prove a sub- sequent oral agreement enlarging the time of performance of a simple contract, or varying its terms, or to show a waiver or discharge, although the original contract was required by the statute of frauds to be in writing. Stearns v. Hall, 9 Cush. 31 ; Cummings v. Arnold, 3 Met. 486. The decisions in Maine and Maryland have a bearing in the same direction. Richard- son u. Cooper, 35 Maine, 450 ; Blood v. Hardy, 15 Maine, 61 ; Franklin v. Long, 7 Gill & J. 407 ; Watkins v. Hodges, 6 Harr. & J. 38. See Blood v. Goodrich, 9 Wend. 68, 79.1 (k) See Littler v. Holland, 3 T. R. 590 ; Pey toe's case, 9 Co. 7 7 . See Kaye v. Wag- horn, 1 Taunt. 428 ; [1 Sugden V. & P. (8th Am. ed.) 158, note (f), and cases cited.] But where, in a case between a mortgagor and mortgagee of goods, the question was, whether the mortgagor had " made default in payment " of the mortgage money at the time mentioned in the deed : it was held that parol evidence was admissible to show that the mortgagee had, before the day, agreed to wait for payment, until a, day subsequent, such non-payment by the mortgagor, with the concurrence of the mortgagee, not being " a default in pay- ment" within the meaning of the deed. Albert v. Grosvenor Investment Co. L. R. 3 Q. B. 123. (i) Per Cur. Hutton v. Warren, 1 M. & W. 466, 475; and see Allen u. Sundius, 1 H. & C. 123 ; Moore v. Campbell, 10 Exch. 323, 331 ; Lucas u. Bristow, E., B &E.907. (k) Kirchner «. Venus, 12 Moo. P. C. 351, 399. And see per Tindal C. J. Lewis o. Marshall, 7 M. & G. 729, 744 ; [Dodge v. Favor, 15 Gray, 82 ; Stevens v. Reeves, 9 Pick. 198 ; Smith v. Wright, 1 Caines, 43.] (I) Humfrey u. Dale, 7 E. & B. 266, 275 ; Dale v. Humfrey, E., B. & E. 1004; Parker v. Ibbetson, 4 C. B. N. S. 346 ; Suse v. Pompe, 8 lb. 538 ; Field v. Le- lean, 6 H. & N. 617; Phillips u. Briard, 1 H. & N. 21 ; per Cur. Spartali a. Be- necke, 10 C. B. 212, 222; and see Hall v. A WRITTEN CONTRACT. 157 As an illustration of the rule in question, may be noticed the cases of a custom of the country, that the tenant of a Custom of farm shall have the away-going crop ; (to) or shall, in the C0UQtr y- the last year, till and cultivate the land, being paid a compen- sation ; (w) or the case of a custom, that a heriot shall be paid on the death of a tenant for life (0) — all which customs shall prevail if there be nothing on the subject in the lease, or other written instrument, to control their operation, (p) So it has been decided, that if a lease contain no stipulations as to the mode of quitting, the off-going tenant is entitled to his away-going crop, according to the custom of the country, even though the terms of holding may be inconsistent with such a custom. ()* ». The Inhabitants of Enderby, 2 B. & (A) Doe d. Marlow v.jWiggins, 4 Q. B. Ad. 205 206. 36T ! Mayfield v. Eobinson, 7 Q. B. 486; (c) See Parke B. Taylor v. Steele, 16 Marlow v. Thompson, 1 Dowl. N. S. 575. 164 STAMPING AGREEMENTS. agreement is not the value of the goods deposited, but the rent or other sum which is to be paid to the depositee for his services with reference thereto. Thus, in an agreement with a warehouseman, the necessity for a stamp depends on the amount of the rent which he is to receive for warehousing the goods, (i) So a memorandum by a wharfinger, of the receipt of goods to be shipped in a par- ticular manner, would be receivable in evidence without a stamp, if the sum payable for wharfage were less than 51. (k) And there are other decisions under the repealed acts, which illustrate the same principle. Thus, a carrier's receipt for goods of more than 201. value, whereby he agreed to deliver the goods, " fire and rob- bery excepted, carriage paid," was held to be an agreement of less value than 201. ; the price of the carriage, not the value of the goods, being the primary subject-matter thereof. (7) So, an agree- ment by the defendant to pay interest on a bill of exchange for 100Z., "at the rate of one shilling in the pound per month, till the whole was fully paid and satisfied," was held to be admissible without being stamped. (m~) So, an agreement to give up a house and the goodwill of a business for 11., and, under a forfeiture of 20/., not to open a shop in the same line of business, was held not to require a stamp ; because, even supposing that the whole of the penalty of 201. would be recoverable, still the penalty was not the subject-matter of the agreement, (ri) So, where the agreement was, to confess judgment for Z01. in order to secure payment of 51. ; it was held, that the subject-matter of the agreement was not of the value of 201., and that it did not require a stamp, (o) And where, on an appeal against an order of removal, the apellants, — in order to show that the pauper had served more than forty days (£) Baldwin v. Alsager, 13 M. & W. Vict. c. 97, sched. " Warrant for Goods," 365. exempts from duty "any document or (k) See Chadwick v. Sills, R. & M. writing given by any inland carrier, ac- 15. knowledging the receipt of goods conveyed (I) Latham v. Rutley, R. & M. 13. The by such carrier; " and any "weight note report states that Abbott C. J. inclined issued together with a duly stamped war- to doubt whether a stamp was not neces- rant, and relating to the same goods, sary, but ruled otherwise on the authority wares, or merchandise." And see the of Chadwick v. Sills, lb. 15. These cases carrier's act, 1 Will. 4, c. 68, s. 3. But were recognized by Maule J. in the recent that act relates only to land carriers, case of Cox v. Bailey, 6 M. & G. 193, 195. (m) Semple v. Steinau, 8 Exch. 622. See, also, per Parke B. Baldwin u. Alsa- (n) Pemberton v. Vaughan, 10 Q. B. ger, 13 M. & W. 365, 367; Semple v. 87,90. Steinau, 8 Exch. 622, 624. The 33 & 34 (o) Ames v. Hill, 2 B. & P. 150. STAMPING AGREEMENTS. 165 as an apprentice, in the respondent parish, with the assent of his master, — produced a written paper, purporting to certify that the father of the pauper agreed to give his master eight shillings for the term of his apprenticeship ; it was held that, there being nothing to show that the value of the subject-matter of the agreement was 201., it did not require a stamp. (j>~) 2d. The words of the act are extremely comprehensive, as to the description or nature of the memorandum required whatkindof to be stamped as an agreement ; the duty being im- Xm^with- posed, whether the memorandum " be only evidence of in the act - a contract, or be obligatory upon the parties from its being a written instrument." Thus, it was held by Lord Kenyon, that the MS. of an adver- tisement in the Gazette, declaring " that A. and B. had agreed to dissolve their partnership," and signed by them, must have . an agreement stamp, (j) And a document may be evidence of a contract so as to require a stamp, although it may not be such a memorandum of the con- tract as would satisfy the statute of frauds. Thus, where a written paper signed by an auctioneer, and delivered to the bidder to whom lands were let by auction, contained the description of the lands, and the terms and rent, but not the lessor's name, it was held that this paper could not be given in evidence without a stamp, (r) The tax, however, is not imposed*upon every document which is produced in evidence to prove an agreement ; but only Instruments upon documents in which the parties themselves have which do not j i. • 1. l J require an put down the terms of their agreement, and which would agreement therefore be evidence against both, (s) Accordingly, if a writing be produced which does not contain the whole terms agreed on between the parties, it ne,ed not be stamped. (£) (p) Rex v. The Inhabitants of Enderby, (s) See De Porquet v. Page, 15 Q. B. 2 B. & Ad. 205. 1073, 1076; Marshall v. Powell, 9 Q. B. (q) May v. Smith, 1 Esp. 283. Sed 779; per Parke B. Beeching v. West- qucere, for it did not appear that the sub- brook, 8 M. & W. 411, 412 ; per Erskine ject-matter of the agreement was of any J. Vaughton v. Brine, 1 Scott N. R. 258, value. And a stamp would not be re- 262 ; per Patteson J. Reg. v. Inhabi- quired in the case of a mere notice or recital tants of St. Martin's, Leicester, 2 A. & E. of dissolution, without words of agree- 210, 214. ment. Jenkins v. Blizard, 1 Stark, 418. (t) See Ward v. Lord Londesborough, (r) Ramsbottom v. Mortley, 2 M. & S. 12 C. B. 252; Mowatt v. Lord Londes- 445 ; recognized in Glover v. Halkett, 2 borough, 3 E. & B. 307. H. & N. 487. 166 STAMPING AGREEMENTS. Nor need a writing be stamped, if it be merely evidence of a proposal or offer by one party, not amountingper se to an '"' agreement, and which the other party has not accepted. Thus, a resolution by a company, for the appointment of a clerk or secretary at a certain salary, has been held not to require a stamp, (u) So, a proposal made in writing by one party to the other, pending a negotiation for a tenancy, as to one particular point then under discussion, does not require a stamp, (x) So a letter of allotment, in answer to an application for shares in a joint stock company, not containing a simple answer to such application, but introducing some new terms, may be read in evidence, although unstamped, (jy) And in like manner, an estimate in writing of the expense of certain work, not finally acceded to, may be read in evidence in reduction of the plaintiff's demand, without a stamp. (2) And where A. made an offer, in writing to B., to let land to him upon certain terms mentioned in a former written agreement between himself and another person, and this offer was verbally accepted by B. ; it was held that A.'s written offer was admissible in evidence without a stamp, (a) So where, upon the letting of premises to a tenant, a memorandum of agreement was drawn up, the terms of which were read over and assented to by him ; and it was then agreed that he should on a future day bring a surety, and sign the agreement ; neither of which he ever did ; it was held, that the memorandum was not an agreement, but a mere unaccepted pro- posal, and that the terms of the* letting might therefore be proved by parol evidence. (J) And this doctrine was recognized in Hawkins v. Warre, (c) where an unsigned proposal to let was received in evidence without a stamp. But if the writing offered in evidence contain, not a mere pro- pter, if posal, but the result of the negotiation, so that it embodies memoran- 1 i dum contains the terms of the contract by which the parties were to of contract, be bound, a stamp is requisite, whether such writing be si^°ed gh DOt signed or not. (rf) Thus, where a paper written by the (u) Vaughton u. Brine, 1 Scott N. R. (a) Drant v. Brown, 3 B. & C. 665. 258 ; Lucas v. Beach, I Scott N. R. 350. See Hudspeth v. Yarnold, 9 C. B. 625 ; (x) Bethell v. Blencoe, 3 Scott N. R. Turner v. Bower, 7 lb. 625. 568, 573. (6) Doe v. Cartwright, 3 B. & Aid. 326. (y) Vollans v. Fletcher, 1 Exeh. 20 ; (c) 3 B. & C. 690. Willey v. Parratt, 3 Exch. 211 ; 18 L. J. (d) Chadwick v. Clarke, 1 C. B. 700, Exch. 82. 704, 709 ; and see per Cur. Walker u. (z) Penniford v. Hamilton, 2 Stark. Rostron, 9 M. & W. 411, 413. See, also, 475. Bowen v. Fox, 2 M. & R. 167. STAMPING AGREEMENTS. • 167 defendant, and signed by the plaintiff, contained a statement of the terms on which the latter agreed to do certain work for the former : it was held to be evidence of an agreement between the parties, and to be inadmissible without a stamp, (e) And so, where a draft agreement for letting certain premises, was prepared by the plain- tiffs attorney and submitted by him to the attorney for the defend- ant, and by him approved and returned ; and he was afterwards authorized to sign it on behalf of the defendant, but the agreement was never executed : it was held to be inadmissible for want of a stamp. (/) In an action by a medical agent, or broker, for commission, it appeared that he had published, by means of a printed prospectus, the terms upon which he rendered his services. The defendant afterwards applied to him for his services ; and at the trial, the unstamped prospectus was admitted as evidence of the plaintiffs terms, Lord Ellenborough saying, that " this was a parol contract, adopting the terms of a written proposition, previously existing ; " and that " the prospectus was not evidence of the agreement itself, but had performed its office before the parol agreement was entered into." (g~) But it is difficult to reconcile this case with the subse- quent decision in Williams v. Stoughton, (A) or with the rule above stated. That was an action by a schoolmaster against the defendant, for educating his child and also for removing such child without giving three months' notice. It appeared that a printed copy of a (e) Hegarty v. Milne, 14 C. B. 627. sistent with the later authorities on this (/) Chadwick v. Clarke, I C. B. 700. subject; and it may be doubted whether This case would seem to be entirely at the case of Edgar v. Blick, as reported, variance with the ruling of Lord Tenter- really is so. It is quite clear that the den in Doe d. Lambourne v. Pedgriph, 4 plaintiff could not have recovered in that C. & P. 312, viz. that a draft agreement case, except on the quantum meruit, unless for letting premises on lease, with an in- the prospectus had been produced; and if dorsement, signed by the parties, in the the defendant had notice of that document, words, " We approve of this draft," does so as to be bound by it at all, it seems diffi- not require a stamp. And see per Cress- cult to avoid the conclusion, that it ought well J. 1 C. B. 706. to have been stamped, because it did, in (g) Edgar »'. Blick, 1 Stark. 464. fact, contain the terms by which the par- (h) 2 Stark. 292. In the case of Chad- ties had agreed to be bound. Probably wick v. Clarke, referred to above, this case Lord Ellenborough's ruling was founded of Williams v. Stoughton was recognized on the idea, that the acceptance of the as an authority by Cresswell J. ; see 1 C. terms on the part of the defendant should B. 705 • but in the same case it was stated have been signified in writing, in order to byShee, Serjeant, arguendo, that Parke B. there being evidence of an agreement had on a recent occasion declined to be within the stamp act. But it is now de- bound by it. lb. 707. It would seem, how- cided that this is not necessary. ever, that the case in question is quite con- 168 STAMPING AGREEMENTS. prospectus, containing the terms of the school, had been delivered by the plaintiff to the defendant, when he agreed to send his child ; and the plaintiff produced a printed copy of the prospectus, stamped with an agreement stamp. It was objected by the defendant, that this could not be received in evidence, since it was not the identical prospectus which had been delivered to the defendant. The latter prospectus was produced according to a notice from plaintiff. It was then objected, " that even such prospectus, so delivered to de- fendant, could not be read, since it was unstamped ; and the. evi- dence was accordingly rejected." If, however, it appeai'ed in such a case as the above, that the terms contained in the prospectus had been only partly agreed to, such prospectus would be admissible in evidence without a stamp. (i~) Again : a written contract, which is not the contract between Agreement tne parties, but which is merely referred to therein as refemngtoa con taining part of its terms, cannot be read in evidence, former agree- t> I ' ' ment. unless it be properly stamped. (It) So, where a verbal agreement was made between A. and B., that the former should let, and the latter take certain premises, upon the terms and conditions contained in a lease of the same premises, granted by A. to a former tenant : it was held, in an action by A. against B. for rent and non- repair, that the lease could not be read in evidence, unless duly stamped. (V) And so where the plaintiff relied on an implied con- tract between himself and a tenant, to hold on the terms of a former lease, it was held that such lease could not be given in evidence to prove those terms, unless it was properly stamped. Qni) So, in an action brought to recover the value of extra work, if it C f xtra a PP ear that the contract for the original work was in work. writing, the plaintiff cannot proceed without putting that contract in evidence ; and, if it be not properly stamped, the plain- tiff will be nonsuited, (n) But where several letters or other documents are put in, which, Several let- taken together, form in fact only one agreement, it is ters, &c, sufficient if any one of them is properly stamped. (0) forming an J > . , ageement. And where there was a written agreement between two (»') Clay v. Crofts, 20 L. J. Exch. 361. (n) Vincent 11. Cole, 3 C. & P. 481 ; and (it) Alcock v. Delay, 4 E. & B. 660. see Buxton v. Cornish, 12 M. & W. 426 ; (/) Turner ». Power, 7 B. & C. 625 ; S. overruling the dictum of Bayley J. in C. M. & M. 131. Rex v. Pendleton, 15 East, 449, 455. (m) WaUis v. Broadbent, 4 A. & E. (0) Peatev. Dicken, 1 Cr., M. & R. 422,- 877. STAMPING AGREEMENTS. 169 parties, for a demise of lands on the terms of a contract annexed to that agreement (but which contract they thereby agreed to abandon) ; and the agreement was stamped as a lease, but the con- tract annexed was not stamped : it was held, that the stamped agree- ment incorporated the unstamped one, and that the two together might be given in evidence as a lease, (p) A mere cognovit, (g<) or an I O U, (V) not containing any terms of agreement, e. g. to pay by instalments, or the like, Cognovit or does not require an agreement stamp. Nor does a cog- l ° u ' novit - require a stamp, although it contain a stipulation hot to take advantage of it before declaration ; (s) or although the plaintiff, at the time of its execution, undertake, on a separate paper, to give the defendant time, (t) Nor does a consent by a defendant, to a judge's order to stay proceedings on payment of debt and costs, on the usual terms, require to be stamped, (w) So, the introduction of the words " for value received," in an I O U, does not render it liable to stamp duty, (a;) And where an I O U was in this form : " I O U 45£. 13s., which I borrowed of Mrs. M., and to pay her 5 per cent, till paid ; " this was held not to require a stamp, (if) But if an I O U contain the words " to be paid on such a day," it re- quires a stamp, (z) Nor is it necessary to stamp a simple admission of the correctness of an account containing various items ; (a) nor a letter Acknowledg- acknowledging a debt, and promising to remit money on ment3 - account thereof. (5) And a document in the following form : " Borrowed this day of J. H. 100L for one or two months ; check 100Z. on the Naval Bank. (Signed) J. D.," was held not to re- quire a stamp, (c) So a mere acknowledgment of an advance of money, (d) or of the receipt, by way of deposit, of money, bills, or goods, to be holden for the party depositing, on terms which the law would imply from the acknowledgment itself, does not require a (p) Pearce v. Cheslyn, 4 A. & E. 225. (x) Gould v. Coombs, 1 C. B. 543. (q) Ames v. Hill, 2 B. & P. 150 ; Bear- (y) Melanotte v. Teasdale, 13 M. & W. don v. Swaby, 4 East, 188. Sedvide Jay 216. v, "Warren, l.C. & P. 532. («) Brooks v. Elkins, 2 M. & W. 74. (r) Fisher v. Leslie, 1 Esp. 426 ; Payne (a) Wellard v. Moss, 1 Bing. 134. v. Jenkins, 4 C. & P. 324 ; Israel v. Israel, (b) Beeching v. Westbrook, 8 M. & W. 1 Camp. 499. 411. (s) Green v. Gray, 1 Dowl. 350. (c) Hyne v. Dewdney, 21 L. J. Q. B. («) Morley v. Hall, 2 Dowl. 494. 278. 'u) Bray v. Manson, 8 M. & W. 668. (d) Huxley v. O'Connor, 8 C. &P. 205. 170 STAMPING AGREEMENTS. stamp, (e) Thus, a mere acknowledgment of having received money by bill, for a particular purpose, " which, when paid, would exoner- ate the party paying," does not require an agreement stamp ; but may be given in evidence if on a receipt stamp. (/) So, where the plaintiff, having deposited money in the hands of the defendant, received from him the following memorandum : " Mr. T. has. left in my hands 1001. ; " it was held, in an action to recover that money, that no stamp was necessary. ((/) So, in an action for not returning a bill deposited with the defendant, the following memorandum, signed by the defendant, was held to be admissible in evidence, though un- stamped : " I have in my hands three bills, which amount to 12(H. 10s. 6d., which I have to get discounted, or return on demand." (Ji) So, an acknowledgment of the fact of the defendant having goods of the plaintiff in his hands, from which the law would imply imply a promise to redeliver on request, need not be stamped, (i) So, the following memorandum : " Mr. S. has this day deposited with me 5001., on the sale of 10,300/. ol. per cent. Spanish, to be returned on demand," was held not to require a stamp. (Jc) And a memorandum in these words : " I have received a bill of exchange, which I hold as your attorney, to recover the value of from the parties, or to made such other arrangement for your bene- fit, as may appear to me, in my professional character, reason- able and proper; " was held to be admissible in evidence without a stamp. (J) So, a memorandum merely expressing the consent of the indorser of a bill, that time should be given to the acceptor, is not an agreement requiring a stamp, (m) So, the following memo- randum : " I hereby acknowledge that you have, for my accom- modation, accepted a bill of even date herewith for 25/., and I agree to provide for the same when due ; " was held not to require a stamp, (n) Nor does the duty attach on a letter from an agent to his principal, detailing the terms of a sale or purchase effected for him ; (. Howard, 3 Stark. 3. (g) Tomkins v. Ashley, 6 B. & C. 541 ; (m) Hill v. Johnson, 3 C. & P. 456. and see Bowen v Fox, 2 M. & R. 167. (n) Notley v. Webb, 5 C. B. 834. (A) Mullet v. Hutchinson, 7 B. & C. 639. (o) Josephs v. Pebrer, 1 C. & P. 341 ; (t) Blackwell v. M'Naughton, 1 Q. B. 127. Tomkins v. Savory, 9 B. & C. 704. STAMPING AGREEMENTS. 171 proceeds to a third person in discharge of a named sum due for freight. (^?) But a memorandum consenting to accept payment of a sum of 321. by instalments, and to give a receipt in full on that sum being paid, has been held to require a stamp, (q) A mere authority by one party to another, to pay money on his behalf, whether the payment be to be made generally, Authority t0 or out of a particular fund, need not be stamped as an P a F money, agreement, (r) And a mere attornment to a party who succeeds the landlord in title, and which does not contain any new terms ; or an Attornments, acknowledgment by a tenant, of the title of an heir or &c " devisee, does not require a stamp. («) So a memorandum by a tenant, admitting a sum of more than 201. to be due for rent, and, in consideration of the landlord withdrawing a distress, authorizing him to reenter and distrain if the rent be not paid by a certain day, is admissible to prove the tenancy, without being stamped, (i) But where A. was tenant of premises under a lease granted by B., against whom a sequestration issued out of chancery, and A. then signed the following instrument : " I hereby attorn and be- come tenant to C. as sequestrator, and to hold the premises for such time, and on such conditions, as maybe subsequently agreed upon ; " it was held, that this was a new agreement to become tenant, and that it required a stamp, (w) So, where the attornment stated, that the tenant held at a certain rent, payable quarterly, and con- tained an acknowledgment of an arrear of rent due, it was held to be inadmissible for want of a stamp, (x) 3d. In ascertaining what is an agreement within the meaning of the statute, attention must be directed to this inquiry, Rules for as- viz. what is the primary or leading object or feature of what is an the instrument ; (y) for, although an instrument may ^m^Te' appear at first sight to be an agreement, yet this may statute. (p) Humphreys v. Briant, 4 C. & P. 318; Butts v. Swann, 2 B. & B. 78 ; Fir- j 57 bank v. Bell, 1 B. & Aid. 39. (q) Remon v. Hayward, 2 A. & E. 666. (s) Doe d. Wright v. Smith, 8 A. & E. (r) Parker v. Dubois, 1 M. & W. 30 ; 255. Walker v. Rostron, 9 M. & W. 411. In (t) Hill v. Bamm, 5 M. & G. 789; and what cases an order to pay money must be see Fishwick v. Milnes, 4 Exch. 825. stamped as an " inland bill," see Hutchin- («) Cornish v. Searell, 8 B. & C. 471. son v. Heyworth, 9 A. & E. 375 ; Carvalho (x) Doe d. Frankis v. Frankis, 11 A. v. Burn, 4 B. & Ad. 382 ; S. C. (in error) & E. 792. 1 A. & E. 883 ; Jones v. Simpson, 2 B. & C. (y) See as to this, Frith v. Rotheram, 15 172 STAMPING AGREEMENTS. not be its legal character or effect, (z) Thus, a demise by memo- randum in writing not under seal, is to be regarded as a lease, not as an agreement, and should be stamped accordingly, (a) So, where a firm, which was negotiating to obtain an advance of money on their bill, wrote to the proposed lender stating that, in con- sideration of his accepting their draft, they handed him therewith the bill of lading and policy of insurance for certain wines expected to arrive, which would afford him security beyond the amount of the bill ; and engaging to land and warehouse the wines to be held at his disposal : it was held, that this document did not require a mortgage stamp, but was properly stamped as an agreement. (6) And although, as we shall hereafter see, a contract for or relating to the sale of goods need not be stamped ; yet, if the main object of the agreement be the obtaining money upon a pledge of goods, the instrument must be stamped, though the sale of them be in- cident thereto, (c) So, if an instrument purporting to be a bill of exchange or promissory note contain, in fact, an agreement between the parties, an agreement stamp is necessary, (cf) But if, on the other hand, the instrument be primarily a promissory note, it must be stamped as such, and not as an agreement. And therefore, where the instrument was : " On demand I promise to pay W. I. H., or order, 500L for value received, with interest; and I have lodged with the said W. I. H. the counterpart lease, &c, as a collateral security for the said 500Z. and interest: " it was held that it was properly stamped as a promissory note, (e) Where, how- ever, the instrument was : " I have received the sum of 20L which I have borrowed of you, and I have to be accountable for the said sum, with interest : " it was held that it was properly stamped, not as a promissory note, but as an agreement. (/) So, a letter in these words : " I have received your check for 391i. 10s. 3d. being the payment for an overdue bill and interest in the hands of D. ; and I hereby undertake to procure and hand the said bill over to you," — and stamped as an agreement, was held admissible in evidence without a receipt stamp, (jf) And, M. & W. 39; Wolseley v. Cox, 2 Q. B. {d) Nicholson v. Smith, 3 Stark. 128; 321 ; Doe d. Maceron v. Bragg, 8 A. & E. Smith v. Nightingale, 2 lb. 375. 620. ( is produced contract, he cannot be nonsuited by the defendant's pro- by defend- . . . . ant ducing an unstamped written instrument, purporting to contain the terms of the contract. In that case Tindal C. J. ob- served : " It has been argued, that if it be shown that a contract is evidenced by writing, it is immaterial whether this appear on cross-examination of the plaintiffs witnesses, or in the course of the defendant's evidence. But there is this difference in the case, that if it appear by the testimony of the plaintiffs witnesses, the absence of the writing is an inherent defect in his case, which it is (g) Rex v. The Inhabitants of Merthyr The Inhabitants of the Holy Trinity, 7 B. Tydvil, 1 B. & Ad. 29. See, also, 1 Will. & C. 611. See 8 lb. 780. 4, c. 18, and 4 & 5 Will. 4 c. 76. Under (A) Strother v. Barr, 5 Bing. 136. See former statutes — where the proofs neces- Cotterill v. Hobby, 4 B. & C. 465. sary for establishing this kind of settle- (i) Doe v. Harvey, 8 Bing. 239. ment were only that tenancy existed, and (k) Rex v. Bedford, 6 T. R. 452 ; Tur- that the value of the tenement was 10/. a ner v. Power, 7 B. & C. 625. year, without regard to the terms of the (I) 6 Bing. 332. See Stephens v. Pin- demise— the court held, that the written ney, 8 Taunt. 327 ; Rex v. Inhabitant of agreement need not be produced. Rex v. Padstow, 4 B. & Ad. 208. STAMPING AGREEMENTS. 177 incumbent on him to get over ; whereas, if it appear from the defendant's witness, it is an objection which the defendant must sub- stantiate by the production of the instrument in the regular way ; otherwise this inconvenience might follow, — that the plaintiff might, on a mere assertion of the defendant, be nonsuited for the non-production of a written instrument, which, if it had been pro- duced, might turn out not to apply to the contract in question." And the same rule holds good, even although the plaintiff has had notice to produce the instrument in question, (m) Again, when an agreement has been lost, or even wrongfully destroyed by the party chargeable, parol evidence of its Rule w here contents is inadmissible, if it appear that it was un- ^storae- stamped when lost or destroyed ; (n~) and in the former str °y ed - case it would probably be incumbent on the claimant who has lost the instrument, to prove, in the first instance, that it was duly stamped. And where an apprentice had regularly served under an indenture, executed thirty years before, and the parish in which the apprentice was settled under that indenture had relieved him for the last twelve years, and the indenture had been lost ; it was held, that the sessions had rightly presumed that the indenture had been duly stamped, although it was proved on the other side, by the deputy registrar and comptroller of apprentices' indentures, that it did not appear that any such indenture had been stamped or enrolled. (0) But if a party refuse to produce an agreement after notice, it is to be presumed that it was stamped, until he show the where party contrary. Qp) So where, in an action by an allottee to p^XcVtiie recover his deposit, the plaintiff put in the letter of allot- instrument. (m) Magnay v. Knight, 2 Scott N. R. dncing the original. But it would seem 64. that this is no longer law. Rankin v. (n) Rex a. Castlemorton, 3 B. & Aid. Hamilton, 15 Q. B. 187, 198. If the 583 ; Rippener v. Wright, 2 lb. 478. In plaintiff's part of a deed, executed by de- Bousfield v. Godfrey, 5 Bing. 418, where fendant, was duly stamped and then lost, the defendant surreptitiously obtained pos- and defendant produce on his part on no- session of a written agreement unstamped, tice, the latter, though unstamped, may be and thereby prevented the plaintiff from read as secondary evidence. Munn v. stamping it within twenty one days, as Godbold, 3 Bing. 292. intended, and then swore that he had lost (0) Rex v. Long Buckby, 7 East, 45. or destroyed the instrument ; the court [Under the United States internal revenue ordered that he should produce a copy in act of July 13, 1866, c. 184, s. 9, the proper his possession ; and that if the plaintiff stamp may be fixed to a copy, where the produced that copy stamped at the trial, original instrument is lost.] defendant should be precluded from pro- (p) Crisp u. Anderson, 1 Stark. 35 ; VOL. I. 12 178 STAMPING AGREEMENTS. ment ; but the letter of application was not produced by the de- fendant, although proper notice to that effect had been given ; it was held, that that circumstance was sufficient to found a pre- sumption, that the two letters were not ad idem, so as not, per se, to make the contract ; and that, therefore, the letter of allotment did not require a stamp. (c[) If an instrument be produced, which purports to have been executed, " being first duly stamped," but the stamp has stamp is been obliterated, and it only appears by marks on the instrument that some stamp was once impressed on it, the judge may decide whether or not the fact of stamping is suf- ficiently proved ; and if satisfied of it, he may receive the instrument in evidence, (r) And where a document is stamped with a " denoting Effect of . . , . , , , i • • i "denoting stamp, it cannot be objected to when tendered in evidence s mp ' as being improperly stamped. (s) No new trial N or can a new trial be obtained, on the ground that for ruling of ° judge that the judge has ruled that the stamp upon any document cient. is sufficient, or that it does not require a stamp, (t) 2d. And although the language of the 33 & 34 Vict. c. 97, s. 17, is, that an unstamped instrument shall not, " except agreement in criminal proceedings, be pleaded or given in evidence, for collateral or admitted to be good, useful, or available in law or purposes equity," — still it is apprehended that, in conformity with the rule universally adopted before that act, an unstamped instru- recognized in Crowther v. Solomons, 6 C. & 15 Vict. c. 99, ». 6 ; Tidd, 9th ed. 487, B. 758; 18 L.J. C. P. 92. But if it be 590; Bousfield o. Godfrey, 5 Bing. 418. shown that the instrument was at onetime This may be done where one part of the unstamped, facts may be proved to raise agreement is lost. Neale v. Swind, 2 C. & a presumption that it was afterwards J. 278. stamped, so as to let in secondary evidence (q) Moore v. Garwood (in error), 4 of its contents. Closmadeuc w. Carrell, 18 Exch. 681, 689. C. B. 36. If produced by the adversary it (r) Doe d. Fryer v. Coombs, 3 Q. B. must have a stamp or it cannot be used in 687. evidence by the party calling for it. Where (s) 33 & 34 Viet. c. 97, s. 18; and see a party wishes to have, at the trial, the Prudential Assurance Association v. Cur- benelit of a written agreement which is in zon, 8 Exch. 97. the hands of his opponent, unstamped, the (r) 17 & 18 Vict. c. 125, s. 31 ; and see proper course is to take out a summons, or Siordet v. Kuczinski, 1 7 C. B. 251. Sent- to apply to the court, calling upon the ble, that the statute does not apply where latter to allow an inspection, and, if neces- the judge refuses to admit a document for savy, to permit the party applying to pro- want of, or as being improperly stamped, cure the agreement to be stamped. See 14 Per Willes J. lb. 256. STAMPING AGREEMENTS. 179 ment may still be read for some collateral purposes, (u) e. g. to establish fraud or illegality, (x) So it lias been held, that a bond or debenture is admissible in evidence, although on a wrong stamp, for the purpose of showing that it is worthless as such, and thereby laying a foundation for the plaintiffs right to recover on the money counts, (t/) So, where an action was brought on an agreement made in consideration of giving up a guaranty, and the defendant pleaded that the guaranty was not in fact given up, whereupon issue was joined ; the guaranty, although unstamped, was admitted, to prove that it answered the description given of the consideration for the defendant's promise. (2) So where, in an action of debt, the defendant pleaded never indebted and payment, and the plain- tiff gave in evidence, in chief, a document purporting that the defendant admitted the debt, but stating that it had been paid by a bill of exchange : it was held, that the plaintiff might give the bill in evidence, although it was not properly stamped, in order to negative the alleged payment, (a) In like manner, it has been held that a bill of parcels delivered by the plaintiff, having at the foot of it a receipt written at the same time with the bill, is never- theless admissible without a receipt stamp, for the purpose of proving that the goods mentioned were sold to a third person, and not to the defendant. (b~) And if a bill or other security be given upon a wrong stamp, or without a stamp, for a preexisting debt, an action lies for the debt, without reference to the instrument, (c) 3d. Agreements; (d) whether by deed or merely in writing may be stamped at any time before they are produced When st * m P J 1 J . Short, 2 Scott, 243; are exempt from stamp duty. 17 & 18 Venning v. Leckie, 13 East, 7. Vict. c. 104, ss. 9, 55. (v) Whitworth v. Crockett, 2 Stark. 431. (p) All agreements between the master (x) Skrine v. Elmore, 2 Camp. 407. and seamen of any ship, if made in the (y) Heron i;. Granger, 5 Esp. 269 ; form sanctioned by the board of trade, Forsyth v. Jervis, 1 Stark. 437. 182 EXEMPTIONS FROM STAMP DUTY. of goods, that there are also comprised in the instrument sub- ordinate stipulations, as to other things not strictly connected with the sale. (2) So, the following memorandum was held to be within the exception: "Gentlemen, — In consideration of your con- signing to my friends, Messrs. H. & Co. of Calcutta, sixteen casks of sherry wine, and engaging to pay me one per cent, on the amount of the proceeds, I hereby guaranty to you the proper sale of the said wines, and the payment of the proceeds in due time." (a) And so a memorandum, handed by a trader to an auctioneer, in these words : " Memorandum of 1071. had by me of S. (the auc- tioneer), being an advance on books sent in for immediate sale bv auction ; " was held to be within the exception. (&) But, as we have already remarked, the primary object in these Primary ob- cases must be the sale of goods ; and therefore a con- the* saief'of 6 tract, tne main design of which was the procuring money goods. upon a pledge of goods, must be stamped, (e) So, a contract for the sake of " two ' Flys,' harness and goodwill in- cluded," was held to require a stamp, (d) And so an agreement between merchants, that one shall take a share in the outfit of a ship and the adventure, was held not to be an agreement within the exception, (e) It is also observable, that the exception in the statute mentions the sale of goods, wares, and merchandise only ; and it the manufac- has been doubted whether a contract strictlv for the ture of goods. ,, p i « i • ' n i manufacture 01 goods, not m esse at the time ot the contract, is within this exception. (/) But such an objection is always treated strictly ; and it would seem that even where the goods agreed to be sold were not in existence at the time of the order, the contract is within the above exception. Qg~) And as regards the sale of growing and oilier crops, it would seem, that whenever the contract is to be considered a contract for (z) Smith ,:. Cator, 2 B. & Aid. 778 ; (/) De Fries v. Littlewood, 9 Jur. 988; Tooke v. Meering, 1 Danson & Lloyd, 35. Pinner u. Arnold, 2 Cr., M. & R. 613; See 2 M. & R. 121. Hughes v. Breeds, 2 C. & P. 159 ; Buxton (a) Sadler v. Johnson, 16 M. & W. v. Bedall, 3 East, 303. 775. ( g ) See Pinner v. Arnold, 2 Cr.,M. &R. (6) Southgate c - 14: - But this enactment has been held to apply only to instruments which might be stamped with an agreement stamp ; and therefore it does not authorize the admission of an unstamped promissory note, for the purpose of taking a debt out of the statute of limitations. (0) Where, however, there is a written acknowledgment of the debt, and promise to pay it, and this is put in evidence simply for the purpose of barring the statute, the above enactment exempts it from stamp duty ; (p~) and so it is in the case of a simple acknowledg- ment in writing, from which a promise may be implied by law, pro- vided it be used merely for the purpose of taking a debt out of the statute. (j]t) So the stat. 4 & 5 Will. 4, c. 76, s. 86, exempts from stamp duty all contracts and agreements made and entered into in p^^ e ™ { pursuance of the rules, orders, and regulations of the orders of poor law commissioners, and conformable thereto. commission- But in order to bring a contract for the sale of lands (h) Waddington v. Bristow, 2 B. & P. (m) West Middlesex Waterworks Com- 951 ; Parker v. Staniland, 11 East, 362. \ pany v. Suwerkropp, M. & M. 408. (1) Rodwell 0. Phillips, 9 M. & W. 501. (n) Knight v. Barber, 16 M. & W. 66 ; (k) Wick v. Hodgson, 12 Moore, 43 ; and and Humble v. Mitchell, 11 A. & E. 205. see Hemming v. Perry, 2 M. & P. 375. (0) Jones v. Ryder, 4 M. & W. 32. (I) Chanter v. Dickinson, 5 M. & G. (p) Morris v. Dixon, 4 A. & E. 845. 253; and see per Parke B. Pinner u . (?) Taylor v. Steele, 16 M. & W. 665. Arnold, 2 Cr., M. & K. 613. 184 EXEMPTIONS FEOM STAMP DUTY. within the benefit of this provision, it must appear that the sale was made in pursuance of an order of such commissioners, (r) And "The Public Health Act, 1848 " (11 & 12 Vict. c. 63), s. 151, exempts from stamp duty every deed, contract, Contracts of ' l , , , \ , boards of agreement, or writing, made or executed by the general ' ' or local board, or their officers or servants, under or for the purposes of that act. (r) The Guardians of the Banbury Union v. Robinson, 4 Q. B. 919. CHAPTER II. OF CONTRACTS WITH PARTICULAR PERSONS. Sect. I. Of Contracts with Persons incompetent to contract, or protected from Liability on their Contracts. Sect. II. Of Contracts with Particu- lar Persons competent to contract. SECTION I. Of Contracts with Persons incompetent to contract, or protected from Liability on their Contracts. 1 . In general. 2. Persons of non-sane mind. 3. Drunkards. 4. Infants. 5. Married women. 6. Aliens. 7. Outlaws and persons convicted of felony. 8. Bankrupts. 9. Persons under duress. 1. In General. We have seen that, to constitute a binding agreement, there must exist the assent of the parties, that a certain act shall be Tnere must j -n i«i capacity- done or omitted. But a man cannot be said to assent to contract. that he will be bound, unless he be endowed with such a degree of reason and judgment as will enable him to comprehend the subject of negotiation, (a) Hence it is, that the assent which is requisite to give validity to a contract, necessarily presupposes a free, fair, and serious exercise of the reasoning faculty ; or, in other words, the power, both physical and moral, of deliberating upon and weigh- ing the consequences of the engagement about to be entered into. If, therefore, either of the parties to an engagement be absolutely deprived of the use of his understanding ; or if he be deemed by law not to have attained to it, there can in such a case be no aggregatio mentium, and, consequently, no agreement which shall bind him. (a) See 1 Pothier, 29, pt. i. c. 1, s. 1, his consent, and consequently must have art. 4, Evans's ed. The essence of a con- the use of his reason, in order to be able tract consisting in consent, it follows contract. lb. that a person must be capable of giving 186 CAPACITY TO CONTRACT. The rule of law, therefore, which requires the assent of the parties to a contract, assumes that such assenting parties shall be competent to contract ; and, accordingly, in order to there being a valid con- tract, a capacity to contract is absolutely necessary. But the law presumes that there is in every one this capacity to The law pre- contract ; (h~) and, accordingly, where exemption from sumea the ex- liability to fulfil an engagement is claimed, by reason istence of •* o o ' J such capac- of the want of such capacity, this fact must be strictly established on the part of him who claims the exemption. Moreover, it is only in certain prescribed cases that this protection can be claimed ; and, therefore, weakness of mind short of insanity ; or immaturity of reason in one who has attained full age ; or the mere absence of experience or skill upon the subject of the particular con- tract, affords, per se, no ground for relief at law or in equity, (c) In some cases, the incompetency to contract is general and abso- Nature of in- lute ; in others it is limited : in some cases again, the capaci y. contract is void as against both the parties ; in others, only the incompetent or protected party can shelter himself from liability upon it. Thus, the contracts of persons of non-sane mind, and of infants, are not, in every case, absolutely inoperative against them. They may, as we shall shortly see, enter into certain con- tracts ; and they are bound thereby, in the absence of fraud. On the other hand, parties who contract with those whom the law shields from responsibility, cannot, in general, rely on the incapac- ity of the latter, as a defence. This, at least, is the rule in the case of contracts with infants ; (cT) and so it is where a party is in- duced by fraud or duress to enter into an agreement, — the infant, or the party defrauded, or who was compelled by duress to enter into the agreement, being entitled to maintain an action thereon, for any breach of the contract on the part of the person who contracted with him. (e) (b) " Toute personne peut contracter, si Lewis v. Pead, 1 Ves. jun. 19. [See Far- elle n'en est pas declare'e incapable par la nam u. Brooks, 9 Pick. 212 ; Dodds u. loi." Code Civil, liv. 3, tit. 3, sect. 2, Wilson, 1 Const. Rep. 448. It seems to art. 1123. Upon which Rognon observes : be well settled that a person, born deaf " Le principe general est que tout le and dumb, may have a legal capacity to monde est capable; les incapacite's sont contract. Barnett v. Barnett, 1 Jones Eq. consequemment des exceptions, qui ne (N. Car.) 221.] doivent jamais s'entendre aux cas non (d) Holt v. Ward, 2 Str. 937. . prevus." (e) The French law is to the follow- (c) Osmond v. Fitzroy, 3 P. Wms. 129; ing effect: "Le mineur, l'interdit, et la 1 Fonbl. Tr. Eq. 5th ed. 66, 68, n. (r) ; femme marie'e, ne peuvent attaquer, pour CONTRACTS WITH PERSONS OF NON-SANE MIND. 187 2. Contracts with Persons of non-sane Mind. (/) An idiot, or natural fool, is one that hath had no understanding from his nativity ; and who is, therefore, by law, pre- sumed not to be likely to attain to any. But a person is not an idiot if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters. ( f 1 ) T T unities A lunatic, or non compos mentis, is one who hath had understanding ; but by disease, grief, or other accident, hath lost the use of his reason. () Bl. 1325 ; Bradshaww. Eaton, 7 Scott, 183 ; Phelps v. Worcester, 11 N. H. 51 ; Perrin, Poster v. Redgrave, L. R. 4 Exch. 35, note v. Wilson, 10 Missou. 451.] (8) ; per Lord Kenyon, Ford v. Fothergill, (h) Brayshaw v. Eaton, 7 Scott, 183. Peake, 229, 230 ; Burghart u. Angerstein, (i) Dalton v. Gib, 7 Scott, 117. 6 C. & P. 690. [An infant, while he re- (k) Ryder v. Wombwell, L. Rep. 4 Ex. mains under the care of his father, and is 90. supported by him, is not liable, even for (I) Ryder v. Wombwell, L. Rep. 4 Ex. necessaries. Angel v. M'Lellan, 16 Mass. 32,42. "8 • Wailing v Toll, 9 John. 141 ; Hull (m) See per Tindal C. J. Brayshaw v. u Connolly 3 McCord, 6 ; Kline v. L'Am- Eaton, 7 Scott, 183, 187; and Bramwell oureaux, 2 Paige, 419; Guthriei;. Murphy, B. Ryder v. Wombwell, L. Rep. 3 Ex. 4 Watts! 80 ; Simms v. Norris, 5 Ala. 42 ; 90, 97. Johnson v. Lines, 6 Watts & S. 80, 83; (n) Anon. 3 Salk. 196. Sed qu. He to) Bac. Abr. Infancy, (I.), 3 ; Watson Whcaton v. East, 5 Yerger, 41, 61 ; Allen A b 40 41 42. "■ Minol "> 2 Call, 70 > but see Hinely v. (p) Miln'er '«. Lord Harewood, 18 Ves. Margaritz, 3 Barr, 428.] 274. [Nor by his contract of suretyship. 204 CONTKACTS WITH INFANTS. So the law considers that an infant has not sufficient discretion to Debts con- conduct any trade or business ; and, consequently, he tradeor'busi- ,s n0 * liable for the hire of a place for the carrying on ness. f a trade ; (^q) nor f or goods supplied to, or work done for him, in order to enable him to carry on, or in the course of any trade, occupation, or calling carried on by him ; (q 1 ) either alone or in partnership with another person. (V) And it seems that, upon this ground, he is entitled to recover back a sum deposited by him, under an agreement that he would become a partner in trade with another person at a future day, — and which sum, it was agreed, should be forfeited on his breach of the agreement, — he repudiat- ing the contract, by refusing to become a partner at the prescribed period, (s) But where an infant agreed to become and became a partner with another person, and they paid a premium to the de- fendant on taking from him a lease of premises ; and the partner- ship continued, and the partners evjoyed the premises for a short period during the infancy ; it was held that the infant, who avoided the lease on coming of age, could not recover back the money he had paid for premium. (£) is punishable for permissive waste. lb. [In Tupper u. Cachvell, 12 Mot. 559, it was held, that an infant is not liable for the ex- pense of repairing his dwelling-house, on a contract made by him therefor, although such repairs were necessary for the preven- tion of immediate and serious injury to the house. Mr. Justice Dewey, in this (r) "Whywall v. Champion, Str. 1083; Dilk v. Keighley, 2 Esp. 480 ; per Lord Ellenborough, Warwick v. Bruce, 2 M. & S. 209 ; Goode v. Harrison, 5 B. & Aid. 147 ; Thornton v. Illingworth, 5 B. & C. S24 ; [Mason v. Wright, 13 Met. 306 ; Furlong v. Bartlett, 21 Pick. 401 ; Collyer Partn. (5th Am. ed.) § 13.] But if he use case said : " No necessity can exist for goods (supplied to him in his trade) as such expenditures, solely upon the credit necessaries for his household purposes, he of the minor. The fact that he has real estate that may require supervision, and may need repairs, furnishes the proper occasion for the appointment of a guardian, through whose agency such repairs can be made, and, as the law assumes, more ju- diciously made than through the agency of the minor." See New Hamp. Mut. Fire Ins. Co. a. Noyes, 32 N. H. 345, cited, ante, 198, note (rf).] (<]) Per Tindal C. J. Lowe v. Griffith, 1 Scott, 458, 460. (q 1 ) [Per Dewey ,T. in Tupper v. Cad- well, 12 Met. 563 ; Mason v. Wright, 13 is liable. Tuberville v. Whitehouse, 1 C. & P. 94. (s) Corpe v. Overton, 10 Bing. 252. Sed vide Wilson v. Pearse, Peake Add. Cases, 196, in which Lord Kcnyon is re- ported to have held, that a deposit paid by an infant upon an agreement to purchase the goodwill and stock of a public house, could not be recovered back by him upon his refusal to complete the purchase. (t) Holmes v. Blogg, 8 Taunt. 508. In this case there was a partial enjoyment of the consideration. But Gibbs C. J. in delivering judgment, cited, with approba- Met. 306. And the rule of liability is the tion, a dictum of Lord Mansfield in Drury same although the infant is emancipated by o- Drury, or Lord Buckinghamshire v. his father. Mason v. Wright, supra.] Drury, Wilmot's Notes, 177, S. C. 3 Bro. CONTRACTS WITH INFANTS. 205 Other cases. Bankrupt. as Innkeeper. And where goods, consigned to an infant, are delivered to a car- rier before the infant comes of age, and they do not reach him until after that period, he is not liable, (u) And an infant, as he cannot trade, cannot be a bank- rupt, (x) Nor is an infant liable on the custom of the realm, an innkeeper. (y~) So it has been held, that an infant is not liable on an account stated even for necessaries. (z) But an account stated Account with an infant is not absolutely void ; it is voidable only, stated ' and may be ratified by him after attaining his full age. (a) So an infant is not liable on a bill of exchange to which he is a party, (a 1 ) although it were given for necessaries. (5) Bill of ex- But such a bill is good as against other parties thereto, (c) c ange ' And if a party accept a bill after he has attained the age of twen- ty-one, it is no objection that it was actually drawn before, in dis- charge of a debt incurred whilst he was an infant, (c?) P. C. 2d ed. 492; S. C. 2 Eden, 60, 72 : " That if an infant pay money with his own hand, without a valuable considera- tion for it, he cannot get it back again." [If an infant receive rents, he cannot claim them again when he comes of age. Par- ker v. Elder, 11 Humph. 546. Neither can he recover back money paid by him for articles for which he could not have been compelled to pay, not being necessary. Lord Justice Turner, in Ex parte Taylor, 8 De G., M. & G. 254, 258. See Bailey v. Bamberger, 11 B. Mon. 113; Smith u. Evans, 5 Humph. 70 ; Cummings v- Pow- ell, 8 Texas, 80.] (u) Griffin v. Langfield, 3 Camp. 254 ; Dawes v. Peck, 8 T. R. 330. (x) Belton v. Hodges, 9 Bing. 365 ; Ex parte Sydebotham, 1 Atk. 146 ; Ex parte Moule, 4 Ves. 603 ; O'Brien v. Currie, 3 C. & P. 283. Under the 12 & 13 Vict. c. 106, s. 233, it was held that an adjudica- tion of bankruptcy would bind an infant until it was annulled. Re West, 22 L. J. B. Ca. 71. But this statute is repealed by the 32 &33 Vict. c. 83, s. 20. [But in the United States, it has been decided that an infant is entitled to the benefit of the bankrupt actof the United States of 1841, and that the proceedings might be in his own name. In re Samuel, 3 McLean, 317.] (y) Carth. 161 ; 1 Roll. Abr. Action sur le Case, D. (3). (c) Trueman v. Hurst, 1 T. R. 40 ; per Cur. Williams v. Moore, 11 M. & W. 256, 266 ; Ingledew v. Douglas, 2 Stark. 36. (a) Williams v. Moor, 11 M. & W. 256. (a 1 ) [Goodsell v. Myers, 3 Wend. 479; Reedf. Batchelder, 1 Met. 559; Hesser v. Steiner, 5 Watts & S. 476 ; Wright v. Steele, 2 N. H. 51 ; Best v. Givens, 3 B. Mon. 72, 73 ; Jefford v. Ringgold, 6 Ala. 544, 548. The note of an infant is not, however, void, but voidable only, at his election. See Reed 0. Batchelder, 1 Met. 559; Aldrich v. Grimes, 10 N. H. 194.] (6) Williams a. Harrison, Carth. 160; S. C. Holt R. 359 ; Bayley on Bills, 5th ed. 44 ; Williamson v. Watts, 1 Camp. 552. [See Swasey v. Vanderheyden, 10 John. 33.] (c) Taylor v. Croker, 4 Esp. 187 ; Jones v. Darsh, 4 Price, 300 ; Gregg v. Cooper, 3 Dougl. 65 ; [Conn v. Coburn, 7 N. H. 368 ; Nightingale v. Withington, 15 Mass. 273 ; Hardy v. Waters, 38 Maine, 450 ; Frazier v. Massey, 14 Ind. 382.] (rf) Stevens v. Jackson, 4 Camp. 164. 206 CONTRACTS WITH INFANTS. Bond. According to some ancient authorities, an infant is liable on his single bill, — that is, a bond without a condition, — for necessaries, (e) But as the giving such a bond neces- sarily presupposes the statement of an account, and an account stated by an infant is voidable ; it would seem that he would not be liable on his bond unless he ratified it after his majority. And, at all events, he is not bound by a bond with a penalty, (/) especially if interest be thereby made payable. (#) So it has been held, that a cognovit given by an infant is void ; (7i) Cognovit, and it would seem to be admitted, that a warrant of at- torney given by an infant is also void, (i) So a release executed by an infant is void, or, at least, voidable. (&) Release. (e) Russel>. Lee, 1 Lev. 86; Co. Litt. 172 a; Cro. El. 920; B. N. P. 155 a. [In Earle v. Reed, 10 Met. 387, it was decided, that, in a suit by the promisee, on a nego- tiable note, given by an infant, the promi- see may show that it was given, in whole or Weaver u. Stokes, 1 M. & W. 203. [An infant cannot appoint an attorney. Par- ker C. J. in Whitney v. Dutch, 14 Mass. 457, 461, 463 ; Boof v. Stafford, 7 Cowen, 179, 180 ; Jones Ch.in Boof v. Stafford, 9 Cowen, 626, 628; Bronson J. in Fonda v. in part, for necessaries, and may recover Van Home, 15 Wend. 631,635; Bool u. thereon, as much as the necessaries, for which Mix, 17 Wend. 120,121. His power of it was given, were reasonably worth, and attorney is absolutely void. Tucker v. no more. Bradley v. Pratt, 23 Vt. 378. See M'Minn u. Richmond, 6 Yerger, 9 ; M'Crillis <•. How, 3 N. H. 348 ; Conn u. Coburn, 7 N. H. 368. In the above case of Earle <.-. Reed, it was also held, that a promissory note given by an infant, and signed in the presence of an attesting witness, is not barred by the statute of limitations of Massachusetts (Rev. Stat. c. 120, § l),if an action thereon is brought by the original promisee.] (/) Ayliff !•. Archdale, Cro. El. 920; Co. Litt. 172 a; Corpe u. Overton, 10 Bing. 252. (;j) Fisher v. Mowbray, 8 East, 3.30; Baylis u. Dineley, 3 M. & S. 477 ; [Col- cock u. Ferguson, 3 Desaus. 482. But in Bradley v. Pratt, 23 Vt. 378, it was de- cided that there is no general rule exempt- Moreland, 10 Peters, 59 ; Lawrence v. Mc- Arter, 10 Ohio, 37,42 ; Pyle v. Cravens, 4 Litt. 17, 21 ; Waples v. Hastings, 3 Har- ring. 403 ; Thomas v. Roberts, 16 M. & W. 778; 1 Am. Lead. Cas. (4th ed.) 247; Cummings o. Powell, 8 Texas, 87. But an authority given to another by an in- fant, otherwise than by an instrument under seal, to do an act which the infn t himself might do, is not void. As, an in- fant promisee of a negotiable note may by parol authorize another to transfer such note by indorsement for him, and the transfer so made is valid until avoided. Hardy o. Waters, 38 Maine, 450. See Whitney v. Dutch, 14 Mass. 457. But see I Am. Lead. Cas. (4th ed.) 247, note (3) ; Thomas e. Roberts, 16 M. & W. 778. A confession of judgment by an infant has ing an infant from paying interest on a been held to be absolutely void. Bennett debt for which he is liable. And in this v. Davis, 6 Cowen, 393 ; Knox v. Flack, case interest was allowed on a promissory 22 Penn. St. 337 ; Waples v. Hastings, 3 note given by an infant.] Harring. 403.] (h) Oliver D.Woodroffe, 4 M. & W. 650. (k) 2 Shep. Touch. 334 (n), 13. [See (t) Oliver v. Woodroffe, supra ; and see Fridge v. The State, 3 Gill & J. 115.] CONTRACTS WITH INFANTS. 207 But an infant may execute a mere power, or perhaps, a power coupled with an interest ; (7) although he cannot bind p ower . himself by contract to convey an estate vested in him as trustee, (rn) An infant is not liable on his warranty of a horse sold by him. (w) Nor is he liable for a false and deceitful warranty of Warranty of goods, or of his title thereto, upon a sale by him. (o) Neither is an infant liable, civilly, to a person who intrusts him with money, which he negligently misapplies, (j>~) Nor Money lent, is he liable for money lent, although the money be ap- c " plied by him in paying for necessaries, (g) But it is said that, per- haps, if the plaintiff were to prove that the money was lent to the infant to buy necessaries with, and that it was laid out accordingly, he might recover, (r) And equity will relieve in such cases, on the ground that the lender of the^money stands in the place of the infant's creditor, whose claim for necessaries has been satisfied. («) And although an infant is not liable for money received by him for the plaintiff's use, under a contract express or im- N j. M . plied; yet it has been held, that where he wrongfully tort, for a embezzles money, he may be sued as for money had and tion arising received, (t) But in cases such as these, the origin of the claim is to be regarded ; for if it arise strictly out of a contract upon which an infant is not liable, a party shall not be allowed to charge the infant, by treating the breach of that contract as a tort, (1) See King v. Bellord, 32 L. J. G. 88 ; Bent v. Manning, 10 Vt. 225, 230 ; 646,647. Hickman v. Hall, 5 Littel, 338, 342. But a (m) lb. payment to him of wages to enable him to (n) Hewlett v. Haswell, 4 Camp. 118. pay for necessaries is good. Hedgley v. (o) Green v. Grcenbank, 2 Marsh. 485. Holt, 4 C. & P.. 104. And if an infant See Grove v. Nevill, 1 Keb. 778. [And in purchase necessaries, and give a promissory such case there is no difference whether the note signed by himself and a surety, and action is in form ex contractu or ex delicto, the surety afterwards pays the note, he is Morrill v. Aden, 19 Vt. 505; West v. entitled to recover the money so paid of Moore, 14 Vt. 447 ; Brown v. Dunham, 1 the infant. And the cause of action arises Root, 272 ; Prescott u. Norris, 32 N. H. when the surety pays the note. Conn v. 101. See Merriam v. Cunningham, 11 Coburn, 7 N. H. 368.] Cush. 40. But see Word v. Vance, 1 Nott (r) B. N. P. 154 ; Anon. 3 Salk. 196. & McC. 197 ; Pcignet). Sutcliffe, 4 McCord, (s) Marlow v. Pitfleld, 1 P. Wms. 558. 387 ; People v. Kendall, 25 Wend. 399.] (t) Per Lord Kenyon, Bristow v. East- {p) See Claridge v. Evelyn, 5 B. & Aid. man, Peake, 223. The reason given is, 81, 87. that the infant would have been liable in (7) Darby v. Boucher, 1 Salk. 279 ; B. trooer. [See Elwell v. Martin, 32 Vt. N. P. 154. [See Beeler v. Young, 1 Bibb, 217.] 519; Walker a. Simpson, 7 Watts & S. 83, 208 CONTRACTS WITH INFANTS. and suing in form ex delicto. (J}~) " If one deliver goods to an in- fant on a contract, knowing him to be an infant, he shall not be (t 1 ) [2 Kent, 241 ; Johnson u. Pie, 1 Lev. 169 ; Vasse v. Smith, 6 Cranch, 226 ; Wilt v. Welsh, 6 Watts, 1 ; Fitts v. Hall, 9 N. H. 441 ; People e. Kendall, 25 Wend. 399, 401 ; Schenks v. Strong, 1 South. 87 ; Eaton v. Hill, 50 N. H. 235. An infant, who has represented himself to be of full age, and thus procured a credit, is not estopped by such representation, from set- ting up his infancy, in avoidance of his contract. Burley v. Russell, 10 N. H. 184; Merriam u. Cunningham, 11 Cush. 40; Stoolfoos u. Jenkins, 12 Serg. & R. 399. But see Jennings v. Whitaker, 4 Monroe, 51-53 ; Kerr F. & M. (1st Am. ed.) 147, 148. Where an infant had fraudulently represented himself to be of age, when he gave a bond, it was held that the bond was void at law. Conroe v. Birdsall, 1 John. Cas. 127. See White v. Flora, 2 Overton, 431. He may avoid his contract, though the person dealing with him sup- posed him to be of age. Van Winkle v. Ketcham, 3 Caines, 323. So if he was in business, and in the habit of contracting for himself. Tandy v. Masterson, 1 Bibb, 330 ; Curtin v. Patton, 11 Serg. & R. 305. Infancy is a good bar to an action founded on a false and fraudulent warranty. Mor- rill v. Aden, 19 Vt. 505; Prescott v. Nor- rls, 32 K. H. 101. An infant is liable for a fraud or tort which is entirely independ- ent of contract. Fitts v. Hall, 9 N. H. 441 ; Prescott i'. Norris, 32 N. H. 101 ; Eaton v. Hill, 50 N. H. 235 ; Humphrey v. Douglas, 10 Vt. 71 ; Bullock e. Babcock, 3 Wend. 391 ; Lewis v. Littlefield, 15 Maine, 233; Harttield v. Roper, 21 Wend. 615 ; Brown v. Maxwell, 6 Hill (N. Y.), 592 ; Sikes e. Johnson, 16 Mass. 389 ; Baxter v. Bush, 29 Vt. 465. Where an infant fraudulently obtained goods upon credit, not intending to pay for them, he was held liable in an action for the tort. Wallace v. Morss, 5 Hill (N. Y.), 391. Where goods are sold to an infant on credit, and he avails himself of his infancy to avoid payment, and still retains possession of the goods, the vendor may reclaim them, as having never parted with his property in them ; the refusal to pay being a sufficient disaffirmance of the contract, by which he annuls the contract on both sides, ab initio, and the parties re- vert to the same situation as if the contract had not been made. Badger v. Phinney, 15 Mass. 359 ; Boyden v. Boyden, 9 Met. 521 ; Fitts v. Hall. 9 N. H. 441, 446, 447 ; Jefford v. Ringgold, 6 Ala. 544; Strain v. Wright, 7 Geo. 568. In Badger v. Phinney, the infant purchaser represented himself to be of age at the time of the purchase. But if the goods have been wasted, used, sold, or otherwise parted with, so as that they have gone from the possession of the infant during his infancy, inasmuch as he might lawfully, until the sale was dis- affirmed, exercise absolute control over them, no action will lie against him to re- cover the goods, or for damages for not re- delivering them to the vendor. Fitts v. Hall, 9 N. H. 441, 445, 446 ; Boody v. McKenney, 23 Maine, 525, 526, per Shep- leyJ. ; Burns v. Hill, 19 Geo. 22. But where an infant has obtained a chattel by fraud, and has refused to deliver it on de- mand, he is liable to an action of tort for the conversion of the chattel, although he had sold it before the demand was made upon him, and had previously prevailed on a plea of infancy, in an action against him upon a promissory note given by him for the chattel. Walker v. Davis, 1 Gray, 506. It has also been said, that an infant who lias been paid for goods sold by him can- not reclaim them and avoid the sale with- out restoring, or rendering himself liable to restore the consideration received for them. See Hamblett v. Hamblett, 6 N. H. 339; Badger u. Phinney, 15 Mass. 359; Roof v. Stafford, 7 Cowen, 182 ; Boody v. McKenney, 23 Maine, 525 ; Smith i\ Evans, 5 Humph. 70 ; Bailey v. Bamber- ger, 11 B. Mon. 113; Hillyer u . Bennett, 3 Edw. Ch. 222 ; Hill v. Anderson, 5 Sm. &M. 216 ; Bartholomew v. Finnemore, 17 Barb. 428. Where an infant received a CONTRACTS WITH INFANTS. 209 charged for them in trover and conversion : for the law will not permit a plaintiff, by changing the form of action, to vary the lia- bility of the infant." (w) So where a minor, having hired a horse, injured it in the course of a journey, it was held that he was not liable in an action for the wrong, (x) horse in exchange for other property, he when demanded. Lewis v. Littlefield, 15 cannot recover for the latter, upon an offer Maine, 233 ; S. C. 17 Maine, 40. So where to return the horse, if he has so misused goods were delivered to a mate of a vessel, a minor, to be delivered to a foreign mer- chant, and the minor sold them and used the money, it was decided that a. special action on the case would lie against him. Peigne v. Sutcliffe, 4 McCord, 387. See Penrose v. Curren, 3 Rawle, 351 ; Wilt v. Welsh, 6 Watts, 9, in which it was decided journey, there is an implied promise that that, for a constructive tort or conversion he will make use of ordinary care and in driving a hired horse elsewhere than the diligence to protect the animal from injury, contract allowed, or managing him negli- and return him at the time agreed upon, gently, an infant cannot be made liable. A bare neglect to do either would not sub- For an actual conversion of property in- ject him or an adult to an action in tort, trusted to Ills care, it seems to be generally the contract remaining in full force. But conceded that an infant would be liable, if the infant do any wilful or positive act, But, it was said by Shepley J. in Lewis v. which amounts to an election on his part Littlefield, "what amounts to proof of to disaffirm the contract, the owner is en- conversion has occasioned the difference titled to immediate possession. If he mil- between the courts of Massachusetts and fully and intentionally injure the animal, an Pennsylvania. And if it is difficult to action of trespass lies against him. If he perceive, that a violation of a contract him as to materially lessen his value. Bartholomew v Finneinore, ubi supra.] («) Man by v. Scott, 1 Sid. 129. As to his liability in detinue, see Mills v. Graham, 1 New R. 140, 145. {x) Jennings v. Randall, 8 T. R. 335. [If a horse be let to an infant to go a should sell it an action of trover would lie, and his infancy would not protect him. Campbell v. Stakes, 2 Wend. 137 ; Eaton v. Hill 50 N. H. 235. So where an infant drove a horse he had hired to a much which the law does not regard as binding would amount to a conversion of the property, there may be equal difficulty in understanding why there has not been a conversion when a horse has been hired greater distance than that agreed upon, and killed by bad usage." [As was de- stopped and left the horse without food or shelter all night, and the horse died from this over-driving and exposure, he was held liable in trover. Towne r. Wiley, 23 Vt. 355. And so an infant who hired ahorse to go to a place agreed on, but went to another place in a different direction, was held liable in trover for an unlawlul con- cided in Penrose r. Curren, which was an action on the case for damages.] " And it would seem, that in the cases of Campbell u. Stakes, and of Penrose v. Curren, the plaintiffs might have recovered in an action of trover. For that form of action does not suppose that a contract has existed; and the infant could not be excused for version of the horse. Homer v. Thwing, not delivering the horse by alleging his 3 Hick. 492 ; Green v. Sperry, 16 Vt. 390. See Eaton v. Hill, 50 N. H. 235. So where the infant converted goods, which came into his hands under a prior illegal contract, by refusing to deliver them up vol. i. 14 own misconduct." SeeVasse v. Smith, 6 Cranch, 226; 10 Am. Jurist, 98; 11 lb. 69; 20 lb. 264 ; Schenek v. Strong, 1 South. 87 ; Curtin v. Patten, 11 Serg. & R. 310.] 210 CONTBACTS WITH INFANTS. Where one of two joint contracting parties is an infant, the action Infant joint may and should be against the adult only ; and if both contractor. ^ e sued, and the infant plead his nonage, the plaintiff cannot enter a nolle prosequi as to him, and continue the action against the other defendant; but he must discontinue the action, and sue the other party separately, (if) So, if the defendant plead in abatement, " that he made the promise jointly with another per- son," and that person were an infant, the plaintiff may reply the infancy. (2) 3. It seems that a father is not under any legal obligation to In what cases educate his child, (2 1 ) and that he cannot be made liable, guanfian ^ tne circumstances absolutely negative his assent to any liable. contract with the party who instructed the child, (a) And where a parent gives no authority, and enters into no contract, he is no more liable to pay a debt contracted by his child, even for necessaries, than a mere stranger would be. (6) (y) Chandler v. Parkes, 3 Esp. 76 ; Jaf- of the partners was an infant at the time fray v. Frebain, 5 Esp. 47 ; Burgess v. of the execution of the note. An action Merrill, 4 Taunt. 468. See observations was brought against the adult partner as to this, 2 Pothier by Evans, 63, u . alone, and it was held that the action was (4); [Swift Dig. 185, 186. A different badly brought, the act of the infant being rule has been adopted in New York. Hart- voidable only, and not void. Walmsley v. ness v. Thompson, 5 John. 160 ; but see 3 Lindenberger, 2 Band. 478. See Allen v. Cowen, 374 ; in Massachusetts, Woodward Butler, 9 Vt. 122 ; Barlow v. Wiley, 3 v. Newhall, 1 Pick. 500, 502; Tuttle v. Marsh. 459 ; Colly er Partn. (5thAm.ed.) Cooper, 10 Pick. 288 ; and in Virginia, § 720, and notes.] Walmsley v. Lindenberger, 2 Band. 473 ; (z) Gibbs v. Merrill, 3 Taunt. 307. and Ch. J. Swift himself, in a subsequent (z 1 ) [See Raymond v. Loyl, 10 Barb, page, questions the propriety of refusing 489 ; Bishop Mar. & Div. § 632, and cases to allow the plaintiff to enter a nolle prose- cited in note; Gordon v. Potter, 17 Vt. qui. 1 Swift Dig. 707. Mr. Dutton, in his 350; Chilcott v. Trimble, 13 Barb. 502 ; 2 valuable analytic digest of the Connecti- Kent, 191.] cut Beports, observes, p. 133, that the de- (a) Hodges v. Hodges, Peake Add. C. cisions on this topic are not harmonious. 79. [That a father is bound to educate his In Maine, it was held, that where one child, see Thompson v. Dorsey, 4Md. Ch. of several defendants in an action of as- 149.] sumpsit pleads his infancy, or gives it in (6) Mortimore v. Wright, 6 M. & W. evidence on the trial, the jury may find a 482 ; Shelton v. Springett, 11 C. B. 452. verdict for the infant, and for the plaintiif [A father is not liable on a contract made against the other defendants ; and judg- by his minor child, even for necessaries ment may be rightly rendered on such furnished, unless an actual authority be verdict. Cutts v. Gordon, 13 Maine, 474. proved, or the circumstances be sufficient See Tuttle u. Cooper, 10 Pick. 288. A to imply one. Bennett J. in Varncy u. promissory note was executed by one of Young, 11 Vt. 258 ; Hunt v. Thompson, 3 two partners, in the name of the firm ; one Scam. 179 ; Angel v. McLellan, 16 Mass. CONTRACTS WITH INFANTS. 211 But if it were shown that the child lived under the father's roof, and that the goods were necessaries, and were delivered at the residence of the father, this might be primd facie sufficient to raise a presumption of the father's liability, (6 1 ) whilst, on the other hand, if it appeared that the father supplied his child with money for the purpose of procuring the articles in question, or that he ordered those articles to be furnished elsewhere ; either of those circumstances would rebut the presumption, that he had authority from the father to order them. And it would seem that the mere fact of the articles themselves being necessary for the child, and suitable to that station in which the father has placed him, will not warrant the jury in finding that such authority was actually given, (c) If a husband, living apart from his wife, suffer his children to reside with her, he impliedly constitutes her his agent to case of a order necessaries for the children on his credit, (d) So, away fro™ S if children be left by their father under the protection hl s children. 28 ; Van Valkinburgh v. Watson, 13 John. 480 ; Owen v. White, 5 Porter, 435 ; Gordon v. Potter, 17 Vt. 350; Raymond v. Loyl, 10 Barb. 483 ; Weeks v. Merrow, 40 Maine, 151. Some clear and palpable omission of duty on the part of the father must be shown before he can be charged for supplies furnished his minor child without his direction. Townsend v. Burn- ham, 33 N. H. 270. In Dennis v. Clark, 2 Cush. 352, 353, Metcalf J. having stated the circumstances under which a husband may be compelled to pay for necessary supplies furnished to his wife, adds, " Our law is the same, we have no doubt, in the case of a father who deserts or wrongfully discards his infant children." But in a very recent case in New Hampshire, Kelley v. Davis, 49 N. H. 187, the court upon an examination of recent English, and some American au- thorities, especially those of New Hamp- shire, decided that a parent is under no legal obligation, independent of statutory law, to maintain his minor child ; and that a promise by the parent to pay for necessaries furnished by » stranger to his minor child, is not to be implied from an omission of duty by the parent, resting on moral obligation, merely. See, also, Raymond c. Loyl, 10 Barb. 483 ; Gordon v. Potter, 17 Vt. 348; Hammond v. Cor- bett, 50 N. H. 505.] (6 1 ) [Where one's minor children remain a part of his family and household, and receive necess aries with theknowledge of the father, and without objection on his part, it is the same thing as if he received them himself, or his wife received them. Swain v. Tyler, 26 Vt. 9.] (c) Mortimore v. Wright, supra, from which it appears that the cases of Law v. Wilken, 6 A. & E. 718 ; and Baker v. Keen, 2 Stark. 501, cannot now be relied upon. [See Rumney v. Keyes, 7 N. H. 571 ; Dean v. Annis, 14 Maine, 26 ; Thayer v. White, 12 Met. 343 ; Van Valkinburgh v. Watson, 13 John. 480; Stanton v. Wilson, 3 Day, 37 ; Pidgin v. Cram, 8 N. H. 353 ; 2 Kent, 191 et seg. ; Whipple v. Dow, 2 Mass. 415; Dawes v. Howard, 4 Mass. 97; Call v. Ward, 4 Watts & S. 118; In re Ryder, 11 Paige, 188 ; McKenzie v. Stevens, 19 Ala. 691 ; State v. Cook, 12 Ired. 67.] (d) Per Lord Eldon, Rawlins v. Van- dyke, 3 Esp. 250. [If a father suffers his children to remain abroad with their 212 CONTRACTS WITH INFANTS. of a servant, the latter has an implied authority to provide medical assistance for the children on the father's credit, even although the necessity for it be occasioned by the carelessness of the servant, (e) And where a wife, in the absence of and unknown to her husband, contracted for the board of his daughter, aged seventeen, — who after some time was removed by her to another situation ; and it was proved, in an action by the person with whom she was last placed, that the husband had paid for the first board, although he expressed some disapprobation of it; it was held, that the husband had thereby so far acknowledged the power of the wife to contract tfbr this purpose,' as to make him liable to the plaintiff upon the ^second contract. (/) Even the father of a bastard, who has adopted it by taking it to Tafherof a his home, is liable upon an implied contract to pay for ibastard. necessaries supplied to the child, although no order of 'bastardy has been made. Q7) And it seems that if the father of such a child consent, without an order of bastardy, to pay an annual ■sum for its support, he will be bound to continue to do so, or to ■provide for the child himself, unless he give the most distinct notice of his intention to discontinue the payment in future. Qi) But in ithese cases, any future liability may be repudiated. And where the supposed father, after having made various payments, refused to continue to support the child until the mother obtained an order of :affiliation, it was held that the mother could not sue for the subse- quent maintenance of the child. (£) mother, if he forces them from home by to charge him for necessaries, if they re- severc usage, or otherwise places them in fuse to go to his house to live upon his re- a situation to require necessaries with- quest, after he has made suitable provision out providing the means of obtaining for them. Walker v. Laighton, ubi supra. them, he is liable for their necessaries, It was decided by a divided court, in and any person who supplies them is Finch v. Finch, 22 Conn. 411, that a deemed to have conferred a benefit upon divorced wife could not maintain an action the delinquent parent, for which the law against her former husband to recover for raises an implied promise to pay on his the support of their infant children, the part. 2 Kent, 193 ; Pidgin v. Cram, 8 N. custody of which was decreed to her. But .H. 350, 353 ; Van Valkinburgh v. Wat- see Stanton v. Wilson, 3 Day, 37.] son, 13 John. 480 ; Kimball.y. Keyes, 11 (e) Cooper v. Phillips, 4 C. & P. 581. Wend, 32; In re Ryder, 11 Paige, 188; (/) Forsyth v. Milne, Sitt. after M. T. Reynolds v. Sweetser, 15 Gray, 78; per 1808; Guildhall, K. B. ; Paley on Prin. & Metcalf J. in Dennis v. Clark, 2 Cush. Agent, 120, u. (z). 353 ; Walker v. Laighton, 31 N. H. 111. fa) Hesketh v. Jowring, 5 Esp. 131. See, however, Kelley v. Davis, 49 N. H. (A) Cameron v. Baker, 1 C. &P.268. 187. But a wife and children, living apart (f) Furillio v. Crowther, 7 D. & R. from the husband and father, lose all claim 612. CONTRACTS WITH INFANTS. 213 Whether a father, who deserts his infant child, is liable to a party who supplies the child with necessaries, is vexata quces- tio. (i 1 ) But it has been held, that no such action can deserting his be maintained, if the father had reasonable ground to suppose that the child was provided for. (A;) (i 1 ) See Owen v. White, 5 Porter, 435, and note (d) above ; Kelley v. Davis, 49 N. H.187.] (k) Urmston v. Newcomen, 4 A. & E. 899 ; [Dennis v. Clark 2 Cush. 253. There has not, in the United States, been a uni- formity of decision in reference to the legal liability of parents to pay for neces- saries furnished to their minor children. In Benson a. Remington, 2 Mass. 115, Parsons C. J. said : " The law is very well settled, that parents t\je under obligations to support their children, and that they are entitled to their earnings." The same is assumed in Nightingale v. Withington, 15 Mass. 274; Plummer v. Webb, 4 Ma- son, 382; Whipple v. Dow, 2 Mass. 419. "By the common law of Massachusetts, without reference to any statute, a father, if of sufficient ability, is as much bound to support and provide for his infant children, in sickness and in health, as the husband is bound by the same law and by the com- mon law of England, to support and pro- vide for his wife." Per Metcalf J. in Den- nis v. Clark, 2 Cush. 352. But see Bishop Mar. & Div. § 632, and cases cited. Mr. Chancellor Kent lays it down that " dur- ing the minority of the child, the parent is absolutely bound to provide reasonably for his maintenance and education, and he may be sued for necessaries furnished and schooling given to a child, under just and reasonable circumstances." 2 Kent, 191 ; Stanton v. Wilson, 3 Day, 37 ; Van Valkinburgh v. Watson, 13 John. 480; Simpson v. Robertson, 1 Esp. Cas. 17 ; In re Ryder 11 Paige, 187; Woods J. in Jenness o. Emerson, 15 N. H. 488 ; Hills- borough v. Deering, 4 N. H. 95 ; Addison v. Bowie, 2 Bland, 606 ; Jones v. Stockett, 2 Bland, 509 ; Thompson v. Dorsey, 4 Md. Ch. 149. But see Kelley v. Davis, 49 N. H. 187. But, as the duty of the father to support his minor children is not absolute, but dependent upon the continuance of his own life, so his right to their earnings does not extend beyond the period of his life. Sawyer J. in Campbell v. Cooper, 34 N. H. 63-65; Day v. Everett, 7 Mass. 145. The father is bound to support his minor children, if he be of ability, even though they have property of their own. 2 Kent, 191 ; Dawes v. Howard, 4 Mass. 97; Addison a. Bowie, 2 Bland, 606; Sparhawk v. Buell, 9 Vt. 41 ; In re Kane, 2 Barb. Ch. 375 ; Cruger v. Heyward, 2 Desaus. 94. In Myers v. Myers, 2 McCord Ch. 255, Thompson Ch. said : " If the fatheris in low and indigent circumstances, and the children are wealthy, then the court will allow for maintenance [out of the estate of the children], but where the parent is in circumstances to allow it, the first law of nature makes it his duty to do so." The subject was considered as alto- gether within the discretion of the court, which would be governed by the circum- stances. See to the same effect, Chapline v. Moove, 7 Monroe, 173. And see, also, Dupent v. Johnson, 1 Bailey Eq. 279 ; Cudworth v. Thompson, 3 Desaus. 258 ; Ambler v. Macon, 4 Call, 606 ; Greenwell v. Greenwell, 5 Vesey (Sumner's ed.), 194, 199, note; Newport v. Cook, 2 Ashmead, 332. And an allowance will, in a proper case, be made to a parent out of his child's estate for past maintenance. In re Bost- wick, 4 John. Ch. 104, 105 ; Hill v. Chap- man, 2 Bro. C. C. (Am. ed. 1844) 231, and notes ; Wilkes v. Rogers, 6 John. 556 ; In re Kane, 2 Barb. Ch. 375 ; Presley v. Davis, 7 Rich. Eq. (S. Car.) 105. In some cases the father has been allowed for the support of his infant children out of their estates, though he had a large income; they having a larger. Jervoise u. Silk, Cooper Eq. 52 ; Cavendish u. Mercer, 5 214 CONTRACTS WITH INFANTS. A fathev-in-laiv is not bound by the common law to maintain his Father-in- wife's children by a former marriage. (7) But he will Iaw- become liable if he take them into his house and permit Vesey, 197. But the same obligation to support the minor children does not rest upon the mother as upon the father. See Whipple v. Dow, 2 Mass. 415; Dawes v. Howard, 4 Mass. 97 ; 2 Kent, 191 ; Ded- ham v. Natick, 1 6 Mass. 1 40, per Wilde J. ; Bloomfield v. Chagrin, 5 Ohio, 193; Jen- ness v. Emerson, 15 N. H. 486; Osborne v. Van Horn, 2 Florida, 360 ; In re Bost. wick, 4 John. Ch. 100 ; Wilkes v. Rogers, 6 John. 566 ; Heyward v. Cuthbert, 4 De- saus. 445 ; Tilton v. Russell, 11 Ala. 497 ; Raymond v. Loyl, 10 Barb. 483; Pray v. Gorham, 31 Maine, 241 ; 2 Dan. Ch. Pr. (4th Am. ed.) 1359, 1360. As the father is bound to provide for the maintenance of his infant children, so he is entitled to the custody of their persons, and to their earnings. Benson v. Remington, 2 Mass. 113; Nightingales. Withington, 15 Mass. 274 ; Keene v. Sprague, 3 Greenl. 77 ; Plummer v. Webb, 4 Mason, 380 ; Gale v. Parrott, 1 N. H. 28 ; Day v. Ev- erett, 7 Mass. 145; Wood v. Wood, 3 Ala. 756 ; Emery v. Kempton, 2 Gray, 257. But as the mother is not under the same obligation for the support of her minor children, it has been held that she has not the same right or claim to their ser- vices or earnings. Jenness v. Emerson, 15 N. H. 486; Campbell u. Cooper, 34 N. H. 65. But in a late case in New Hampshire, the whole subject of the rights of the widowed mother in this respect was reviewed, and it was held that she is entitled to the services and earnings of her minor child, in the same manner and to the same extent as the father, if alive, would be entitled to them. Ham- mond v. Corbett, 50 N. H. 501. The right of the parent to the earnings of his chil- dren may be waived by him, or abandoned to them, either by his express agreement, or by his acts and conduct ; as by sending them away, or suffering them to go forth to shift for themselves. Dicks v. Grissom, 1 Ereem. Ch. 428 ; Jennison v. Graves, 2 Blackf. 441 ; Jenney v. Alden, 12 Mass. 375; Canover v. Cooper, 3 Barb. 115; Clinton v. York, 26 Maine, 167 ; Dennys- ville v. Trescott, 30 Maine, 470 ; Camp- bell v. Cooper, 34 N. H. 49, 62, 63 ; Cloud o. Hamilton, 11 Humph. 104 ; Armstrong u. McDonald, 10 Barb. 300. Where parents have allowed their children to make contracts for their services on their own account, it has been held that they thereby impliedly assent that their children shall have their own earnings. Armstrong v. McDonald, 10 Barb. 300. And in such cases, their children are entitled to claim, and those who employ them are authorized to pay them, their earnings. Jenney v. Alden, 12 Mass. 375 ; Whiting v. Earle, 3 Pick. 201 ; Wood u. Corcoran, 1 Allen, 405 ; Burlingame v. Burlingame, 7 Cowen, 92 ; Morse v. Welton, 6 Conn. 547 ; Var- ney v. Young, 11 Vt. 258; Tillotson v. McCrillis, 11 Vt. 477. A father is not entitled to the wages of his son, nor to avoid his reasonable contracts, when he separates from his mother, and leaves the son under her care. Wodell v. Coggeshall, 2 Met. 89 ; Chilson v. Phillips, 1 Vt. 41. The question whether the father has eman- cipated his child, or has waived his right to his child's earnings, is for the jury on all the circumstances of the case. Stiles v. Greenville, 6 Cush. 458.] {1) Tubb v. Harrison, 4 T. R. 118; Cooper v. Martin, 4 East, 79 ; [Gay v. Ballou, 4 Wend. 403 ; Ereto u. Brown, 4 Mass. 675 ; Worcester v, Marchant, 14 Pick. 510 ; Commonwealth v. Hamilton, 6 Mass. 273 ; nor her illegitimate children born before his marriage. Mindtn i\ Cox, 7 Cowen, 235. A minor was held liable to his step-father for his support, in Gay v. Ballou, 4 Wend. 403. But this case was overruled on this last point, in Sharp v. Cropsey, 11 Barb. 224. SeeHuson v. Wal- lace, 1 Rich. Ch. 1.] But see 4 & 5 Will. 4, u. 76, s. 57. CONTRACTS WITH INFANTS. 215 them to appear as part of his family ; or if he do any other act calculated to induce parties to give him credit for necessaries sup- plied to such children, (m) And if a father-in-law educate and support his wife's child by a former husband, without intending at the time to charge such child with the expenses thereby incurred, he cannot recover the same from the child, on its attaining full age, («) unless there be an express promise to repay him. (o~) 4. The general rule appears to be, that the contract of an infant, though it were not for necessaries, is voidable only, and „, „_ . ° # _ ' J ' Of the m- not void, provided it was for his benefit ; ( ») and that fant's con- . . „ . .« firmation of if, on attaining the age of twenty-one years, he ratify a his contract contract made by him during his nonage, it will bind him, although there was no new consideration for his subsequent promise, (q) In order, however, that an adult's confirmation of a contract made during infancy may be binding, it must be voluntary on his part, (j 1 ) not obtained by circumvention ; (r) nor extorted by terror, e. g. by the threat of an arrest ; nor made under a mani- fest ignorance on his part, that he was entitled to claim the privi- lege and protection afforded him by law. (s) But where no circumstance of this kind exists, then, — apart from Lord Tenterden's act, — any act or declaration How it ma which recognizes the existence of the promise as bind- be confirmed. (m) Cooper i'. Martin, 4 East, 76, 82; Stone v. Carr, 3 Esp. 1. [See Freto v. Brown, 4 Mass. 685 ; Minden v. Cox, 7 Cowen, 235; Mulhern v. McDavitt, 16 Gray, 404.] (n) Per Lawrence J. Pelly v. Rawlins, Peake Add. C. 226 ; [Sharp v. Cropsey, 11 Barb. 224. Nor can the child, in such case, recover for services he may have per- formed for his father-in-law. Lantz v. Frey, 19 Pcnn. St. 366; Husseyu. Round- tree, Busb. (Law) N. Car. 110 ; "Williams v. Hutchinson, 3 Comst. 312.] (o) Cooper v. Martin, 4 East, 76. (p) Zouch v. Parsons, 3 Burr. 1794, 1806; Gibbs v. Merrill, 3 Taunt. 313; The King v. The Inhabitants of Chilles- ford, 4.B. & C. 100. (q) Co. Litt. 3 a; Thompson v. Leach, 2 Vent. 203 ; Southerton v. Whitlock, 2 Str. 690; Bac. Abr. Infancy, (I.), 8; [Chandlers. Simmons, 97 Mass. 512.] ( ? i) [Ford v. Phillips, 1 Pick. 202; Smith v. Kelley, 13 Met. 309, 310.] (r) Brooke v. Galley, 2 Atk. 34. (s) Per Lord Alvanley, Harmer v. Kil- ling, 5 Esp. 102; [Curtin o. Patton, 11 Serg. & R. 305 ; Hinely v. Margaritz, 3 Barr, 428 ;. Norris v. Vance, 3 Rich. 164 ; Smith v. Mayo, 9 Mass. 62 ; Hussey v. Jewett, 9 Mass. 100; Ford o. Phillips, 1 Pick. 202 ; Reed v. Boshears, 4 Sneed (Tenn.), 118.] But, in general, ignorance of the law is no defence or excuse. See Stevens v. Lynch, 12 East, 48 ; [Taft v. Sergeant, 18 Barb. 320. And in Morse v. Wheeler 4 Allen, 570, it was held, after a review of the cases, that a ratification by an adult, of his promise made while an infant, is valid, although at the time of the ratification, he did not know that he was not legally liable to pay the debt. ] 216 CONTRACTS WITH INFANTS. ing is a ratification of it, just as, in the case of agency, anything which recognizes, as binding, an act done by an agent, or by a party who has acted as agent, is an adoption of it. (t) And where an infant fraudulently concealed his age, and obtained from his trustees part of certain stock to which he was to become entitled when of age ; and, upon his attaining his full age, he applied for and obtained the residue ; it was held in equity, that he had been guilty of fraud ; that his application for " the residue,'' was a bind- ing recognition of the former payment ; and that neither he nor his assignees could recover back the amount paid during his non- age. («) It has been held, however, that a payment of money generally, on account, does not amount to a confirmation of the remainder of the demand, (x) And in the case of a continuing contract, which is voidable only „ , . by an infant on his coming of age, he is presumed to Kule in cases * # © a ' r of containing ratify such contract, if he do not, within a reasonable time after he has attained his full ao-e, give notice of his disaffirmance of, or otherwise reject, such contract ; unless, that is, the other party dispense with such disaffirmance. («/) Thus, where (() Harris v. Wall, 1 Exch. 122, 130; 550; Alexander v. Hntcheson, 2 Hawks, Hartley v. Wharton, 11 A. & E. 934. 535 ; Pierce v. Tobey, 5 Wet. 168 ; Smith v. [The infant's promise may be ratified by Kelly, 13 Met. 309. But if the infant acts as well as by express promises. Al- maker of a negotiable note, after coming drich v. Grimes, 10 N. H. 194; Morrill v. of age, promise the payee that it shall be Aden, 19 Vt. 505 ; Hoit v. Underhill, 9 N. paid, the payee may negotiate it, and the H. 439. The ratification should be by holder may maintain an action in his own such acts or declarations as are equivalent name against the maker. Reed v. Batch- to a new promise. It should be a promise to a. party in interest or his agent. Good- sell v. Myers, 3 Wend. 479 ; Hoit v. Un- derbill, 9 N. H. 436 ; S. C. 10 lb. 220 ; Gay v. Ballon, 4 Wend. 403 ; Millard v. Hewlett, 19 Wend. 301, 302; Bigelow v. Grannis, 2 Hill, 120 ; Hodges v. Hunt, 22 Barb. 150; Merriam v. Wilkins, 6 N. H. 432 ; Rogers v. Huru, 4 Day, 57 ; Kline v. Beebe, 6 Conn. 494 ; Smith v. Mayo, 9 Mass. 63; Martin v. Mayo, 10 Mass. (Rand's cd.) 137, 141, and note (e) ; Jack- son v. Mayo, 11 Mass. 147 ; Ford v. Phil- lips, 1 Pick. 202 ; Thompson v. Lay, 4 Pick. 48; Barnaby v. Barnaby, 1 Pick. 221 ; Proctor v. Sears, 4 Allen, 95 ; Orris v. Kimball, 3 N. H. 314 ; Hale v. Gerrish, 8 N. H. 374; Wilcox v. Roath, 12 Conn. elder, 1 Met. 559 ; Edgerly v. Shaw, 25 N. H. 514. See Aldrich v. Grimes, 10 ft. H. 194 ; Lawson v. Lovcjoy, 8 Greenl. 405.] («) Cory v. Gcrtchen, 2 Madd. 40. (x) Thrupp v. Fielder, 2 Esp. 628. [So where a promissory note is given by an infant, for articles not necessaries, which have been used or sold by him, an acknowl- edgment that ho owes the debt, or a pay- ment of a part of it, after he becomes of age, is no ratification of the contract. Robbins v. Eaton, 10 N. H. 561. See Benham v. Bishop, 9 Conn. 330; Hinely v. Margaritz, 3 Barr, 428 ; Smith v. Kel- lcy, 13 Met. 309.] (y) Holmes »>. Blogg, 8 Taunt. 35; [and see the cases cited ante, 202, note (a). The special contract of a minor to labor is rati- CONTRACTS WITH INFANTS. 217 an infant held himself out as being in partnership with J. S-, and continued to act as such partner until a short time before he came of age ; and after he came of age he did no act to notify his dis- affirmance of the partnership ; it was held that he was liable on contracts entered into by the firm after he had attained his major- ity, even although he did no act as a partner after that age. (2) So, if an infant make a lease rendering rent, it is, at all events, only voidable ; and if he accept rent at full age, he cannot after- wards avoid the lease, (a) So if a person, after full age, continue in possession of premises which were leased to him during infancy, he affirms the lease ; (a 1 ) and it has been laid down that in such a case he is liable even for arrears of rent which accrued during his infancy- (&) So on a motion in equity, to review the taxation of a bill of costs com- menced during the minority of A. — the master having disallowed all the charges incurred within that period ; the chancellor granted the application, on the ground that a continued employment by A., fied by his continuance to perform it for a Miller v. Sims, 2 Hill (S. Car.), 4-79 ; Dana month after his majority, and cannot v. Stearns, 3 Cush. 372.] afterwards be avoided by him. Forsyth (a) Per Mead J. Ashfield v. Ashfield, v. Hastings, 27 Vt. 646. An enlistment Sir W. Jones, 157; 4 Leon. 4; per Lord by a minor in the army of the United Ellenborough C. J. Baylis v. Dineley, 3 M. States, without the consent of his parent, & S. 477, 481. master, or guardian, though voidable, has (a 1 ) [Where an infant has taken a lease been regarded as capable of ratification ; of real estate, or has purchased it, and and where the party, in such case, remained means to avoid his act, he must elect to in the service more than a year after he do so within a reasonable time after coming became of age, receiving his pay and ra- of age; he cannot enjoy the estate after he tions without any dissent, and without any comes of age for years, and then avoid the reasonable excuse for not making an appli- purchase, and refuse to pay for it, or claim cation for a discharge, it was held that the consideration paid. Boody o. Mc- these acts amounted to a ratification of Kenny, 23 Maine, 517 ; Robbins v. Eaton, the enlistment. State v. Dimick, 12 N. H. 10 N. H. 561 ; Bigelow u. Kinney, 3 Vt. 194; Commonwealth v. Cushing, 11 Mass. 67. See United States v. Anderson, Cooke, 143. Enlistments in the navy, however, by a minor, are binding on him, though made without the consent of his parent, master, or guardian. United States v. Bainbridge, 1 Mason, 71 ; Com- monwealth v. Gamble, 11 Serg. & R. 93 ; Commonwealth v. Murray, 4 Binney, 487 ; United States v. Blakeney, 3 Grattan, 405.] (z) Goode v. Harrison, 5 B. & Aid. 147; [Richardson v. Boright, 9 Vt. 368 ; 353 ; Armfield v. Tate, 7 Ired. 258 ; Kline v. Beebe, 6 Conn. 494 ; Barnaby v. Barn- aby, 1 Pick. 221. But see Benham o. Bishop, 9 Conn. 330.] (J) 1 Roll. Abr. Enfants, (K.), 731; (E.), 45; Ketsey's case, Cro. Jac. 320; Kirton v. Elliott, 2 Bulst. 69 ; Evelyn v. Chichester, 3 Burr. 1719 ; Baylis v. Dineley, 3 M. & S. 477, 481 ; Holmes u. Blogg, 8 Taunt. 35, 37 ; [Boody u. Mc- Kenney, 23 Maine, 524. See Dana v. Stearns, 3 Cush. 372.] 218 CONTRACTS WITH INFANTS. after he came of age, might, under the circumstances, amount to an implied undertaking to pay the prior part of the bill, (c) And it seems that a partial accession to a feme infant's marriage settle- ment, on her attaining full age, confirms it, and binds in toto. (cT) [So, where an infant has purchased real estate, and at the same time has reconveyed the same in mortgage to secure the purchase- money, if he ratifies the purchase after he comes of age, he thereby ratifies the mortgage. (d v ~) So, on the other hand, if he avoids the mortgage, he must at the same time avoid the whole contract, in- cluding the original purchase, the effect of which must be to revest the title in the seller, as it was at first, (c? 2 ) If the infant purchaser of personal property, who has bought it on credit, retains and uses it for an unreasonable length of time after he comes of age, without giving notice of an intention to avoid the contract, or if, after coming of age, he refuses to redeliver the property, or otherwise asserts his ownership of it by some unequiv- ocal act, he may be taken to have ratified the contract, and thereby rendered himself liable for the price. If a negotiable note has been given for the price, the infant becomes liable to pay it, either to the payee, or to the holder if it has been negotiated.] (dF) (c) Guy v. Burgess, 1 Smith, 117. Simmons, 97 Mass. 514 ; Badger v. Phin- (d) Milner v. Lord Harevvood, 18 Ves. ney, 15 Mass. 359 ; Bigelow v. Kinney, 3 277. [" Minority well entitles the minor Vt. 353.] to a right to set aside a bargain which is (rf 3 ) [Boyden v. Boyden, 9 Met. 519 ; not advantageous to him, but he ought in Lawson v. Lovejoy, 8 Greenl. 405 ; Boody such case to reject it entirely ; hisminority o. McKenney, 23 Maine, 517; Aldrich v. cannot give him the right to divide it by Grimes, 10 N. H. 194 ; Thing v. Libbey, taking what is advantageous to him in the 16 Maine, 55 ; Kitchen v. Lee, 11 Paige, bargain and rejecting the surplus." Po- 107; Cheshire v. Barrett, 4 McCord, 241 ; thier Contract of Sale, pt. 5, c. 2, sec. 3, Bobbins v. Eaton, 10 N. H. 561 ; Deason 1.] c. Boyd, 1 Dana, 45 ; Alexander v. Heriot, (d 1 ) [Robbins u. Eaton, 10 N. H. 561 ; 1 Bailey Eq. 223 ; Eubanks .,. Peak, 2 Hubbard a. Cummings, 1 Greenl. 11; Bailey, 497, 499 ; Smith v. Kclley, 13 Met. Dana v. Coombs, 6 Greenl. 89 ; Boody v. 309. If the property purchased is not in McKenney, 23 Maine, 517 ; Richardson v. the hands of the purchaser after he comes Boright, 9 Vt. 368 ; Ottman v. Moak, 3 of age, nor under his control, his obliga- Sandf. Ch. 431 ; Lynde v. Budd, 2 Paige, tion to restore it ceases. Price v. Furman, 191.] 27 Vt. 268, 271. See Fitts v. Hall, 9 N. (rf 2 ) [Per Bell J. in Heath v. West, 26 H. 441. An infant took the note of a N. H. 199, 200 ; Roberts u. Wiggin, 1 N. third person in payment for work done, H. 72 ; Heath v. West, 28 N. H. 101. He and retained it eight months after coming cannot avoid in part only, but must make of age, and was held to have ratified the the contract wholly void if at all, so that payment. Delano v. Blake, 11 Wend. 85. it will no longer protect him in the reten- But where an infant has given a deed of tion of the consideration. Chandler v. his real estate, though he may ratify the CONTEACTS WITH INFANTS. 219 But where it is clear upon the face of the instrument, that it is to the prejudice of the infant, — as in the case of a bond Bonds with with a -penalty, for securing the payment of money with P enalt y- transaction, being voidable only, yet it must be done by some positive, clear, and undoubted act performed for that purpose. Mere acquiescence, acknowledgment that the conveyance had been made, or failure to disaffirm for a great length of time, seems not to be sufficient. Jackson v. Bur- chin, 14 John. 124 ; Jackson v. Carpenter, 11 John. 542, 543 ; Boody v. McKenney, 23 Maine, 517; Curtin v. Patton, 11 Serg. & R. 307 ; Bool u. Mix, 17 Wend. 120 ; Drake v. Ramsay, 5 Ohio, 251 ; Cre- singer v. "Welch, 15 Ohio, 193; Doe v. Abernathy, 7 Blackf. 442. If, in an instru- ment under seal, a person of full age re- cites or recognizes as existing a former instrument, also under seal, executed while the party was a minor, this will be deemed a ratification. Boston Bank v. Chamberlin, 15 Mass. 220 ; Phillips v. Green, 5 Monroe, 344 ; Story v. Johnson, 2 Y. & Coll. 586. Still a deed of confirma- tion seems not to be necessary. Wheaton v. East, 2 Yerger, 41. See Houser o. Reynolds, 1 Hey. 143 ; Dearborn v. East- man, 4 N. H. 441 ; Hoyle v. Stowe, 2 Dev. & Bat. 320. But those acts which amount to a confirmation should be of such a solemn and undoubted uature as to establish a clear intention to confirm the deed after a full knowledge that it was voidable. Tucker v. Moreland, 10 Peters, 75, 76; Jackson o. Carpenter, 11 John. 542, 543 ; Chandler v. Simmons, 97 Mass. 511, 512 ; Hoyle o. Stowe, 2 Dev. & Bat. 320. But see Clamorgan v. Lane, 9 Mis- sou. 447, 473; Kline u. Beebe, 6 Conn. 494 ; Richardson o. Boright, 9 Vt. 368 ; Wallace v. Lewis, 4 Harring. 75 ; Wheaton a. East, 5 Yerger, 41 ; Scott v. Buchanan, 11 Humph. 468 ; Morse v. Wheeler, 4 Al- len, 570, stated ante, 205, in note (s). An infant's deed of his lands, though voidable, is still sufficient to pass his title, and in some states it is not, as a matter of course, superseded and annulled by the mere exe- cution, after he attains his age, of another conveyance, even to a purchaser for value. It has been held that if the infant has not retained possession, he must make an act- ual entry upon the lands before his second conveyance will operate. Dominick v. Michael, 4 Sandf. (S. C.) 374 ; Harrison v. Adcock, 8 Geo. 68. In other states, the execution of a second deed, which is incon- sistent with the former deed, is of itself a disaffirmance of the former deed. See Tucker v. Moreland, 10 Peters, 58 ; Eagle Fire Co. v. Lent, 6 Paige, 635 ; Hoyle v. Stowe, 2 Dev. & Bat. 320 ; Cresinger v. Welch, 15 Ohio, 156 ; Metcalf Contr. 44. As to the mode in which an infant may avoid his deeds and contracts, see, further, ante, 194, note (k). A suit to recover the lands, and an entry on them, are h, suffi- cient disaffirmance. Boody v. McKenney, 23 Maine, 524 ; Chadbourne v. Rackliff, 30 Maine, 361. Whether an infant may avoid his conveyance of real estate be- fore he comes of age, see ante, 194, note (h). An infant's sale of his personal property, where he has received the pay- ment, is not confirmed by his mere acqui- escence. But if he holds a bill or note taken for the property, and after coming of age, collects the whole or a part of it, that would affirm the contract of sale. Boody v. McKenney, 23 Maine, 525. An infant's right to avoid his sale of property may be exercised against bond fide pur- chasers from the grantee. Myers v. San- ders, 7 Dana, 506 ; Hill v. Anderson, 5 Sm. & M. 216, 224. But see Carr v. Clough, 26 N. H. 280. If an infant dis- affirms a sale that he has made, and re- claims the property sold, he must restore, or offer to restore, the purchase-money or other consideration received by him, before he can sustain an action for it. Carr v. Clough, 26 N. H. 280 ; Badger v. Phinney, 15 Mass. 363; Hubbard u. Cummings, 1 Greenl. 13; Bailey o. Bamberger, 11 B. Mon. 113; Farr u. Sumner, 12 Vt. 28; Hill v. Anderson, 5 Sm. & M. 216; Taft 220 CONTRACTS WITH INFANTS. interest — he cannot confirm it at full age, unless by some act of as high authority as the bond, (e) And as it rests entirely with the infant, whether he will ratify a contract made during his infancy, so he may ratify it Contract may . , • , , / be confirmed conditionally ; and in such case the other party must show that the condition is performed, (e 1 ) As where an adult promises to pay " when he is able," some proof of his ability must be given. (/) So it would seem to be proper to declare, in such a case, not only on the original demand which is revived by the subsequent promise, but also on the conditional promise to pay. (/) And in all cases the confirmation must be before action Confirmation brought. (#) But when the plaintiff relies on a subse- must be be- quent promise, which the defendant denies, it is sufficient fore action. n f • l l for the former to prove a promise before action brought, v. Pike, 14 Vt. 405 ; Bartholomew v. Tin- (e) Baylis u. Dineley, 3 M. & S. 477. nemore, 17 Barb. 430; Smith v. Evans, 5 [But there is said to be no general rule Humph. 70 ; Heath o. West, 28 N. H. exempting an infant from the payment of 101 ; Bartlett u. Cowles, 15 Gray, 445. interest, in Bradley v. Pratt, 23 Vt. 378. But in Chandler v. Simmons, 97 Mass. But see Taft v. Pike, 14 Vt. 405.] 508, it was determined that if a minor has (e 1 ) [Thompson v. Lay, 4 Pick. 48 ; wasted or spent the money paid to him as Everson v. Carpenter, 17 Wend. 419, 422 ; the consideration for his conveyance of Proctor v. Sears, 4 Allen, 95. After a real estate, he may avoid the conveyance person becomes of age, he may ratify his without repaying or tendering back the promissory note, made during infancy, by amount; and this was confirmed in Bart- a promise to pay it in labor, in a specified lett v. Drake, 100 Mass. 174, 177. See, also, Price u.Furman, 27 Vt. 268 ; Gibson v. Soper, 6 Gray, 279. See, as to the rule in equity, Ilillyer v. Bennett, 3 Edw. Ch. 222. "Where a minor exchanged horses with an adult without fraud, it was held, time, or else in money. After the time has expired, the promise to pay in money will be an absolute ratification of the note. Edgerly v. Shaw, 25 N. H. 514. An infant made a note, and after arriving at age, on payment being demanded, said : " I will that he might rescind the contract before pay it as soon as I can make it, but I can- arriving at the age of twenty-one years, but that he could not reclaim the horse parted with by him or recover its value without first restoring or offering to re- store to the adult the horse he had re- ceived from him; and also, that the minor, after restoring or offering to re- store the horse received by him, could sustain trover for the one parted with by himself, by showing a conversion. A bona Jide sale by the adult, before the rescission, of the horse received by him, is not a conversion. Carr v. Clough, 26 N. H. 280. Sec White v. Phelps, 12 N. H. 385 ; Knapp v. Winchester, 11 Vt. 351.] not do it this year; I understand that the holder is about to sue it; but she had better not ; " held, an affirmation of the contract, and that an action would lie presently. Bobo v. Hansell, 2 Bailey, 114. See Martin v. Mayo, 10 Mass. (Band's cd.) 141, u. (c) ; Bobbins v. Otis, 1 Pick. 370 ; Edgerly v. Shaw, 25 N. H. 514.] (/) Penn o. Bennett, 4 Camp. 205; Cole v. Saxby, 3 Esp. 160; Besford a. Saunders, 2 H. Bl. 11'6 ; Davies v. Smith, 4 Esp. 36; Leaper v. Tatton, 16 East, 423. (g) Thornton v. Illingworth, 2 B. & C. CONTRACTS WITH INFANTS. 221 without offering any evidence to show that the defendant was of age at the time the promise was made ; (h~) and the defendant, if he rely only on his infancy at the time, is bound to prove it. (i) And we have seen that the fact of an infant electing to avoid a contract entered into by him during his infancy, does not when an necessarily entitle him to recover back money which he recover™ has paid thereon. (*) TderVet- By the 9 Geo. 4, c. 14, s. 5, it is enacted, that no tr ? ct ^™S _ ^ 7 i minority. action shall be maintained whereby to charge any per- 9 Geo i son upon any promise, made after full age, to pay any debt u - contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy ; unless such promise or ratification shall be made by some writing, signed by the party to be charged therewith. (& 1 ) And, since this statute, it has been held that any written instrument, signed by the party, which, in the case of adults, would have amounted to an adoption of the act of a party acting as an agent, will, in the case of an infant who has attained his majority, amount to a ratification. (7) The memo- randum, therefore, to be sufficient must recognize the debt, as a debt binding upon the party who signs it. (m) Such a memorandum, however, although it contained no address or date and specified no sum, but which was signed by the defendant, and was proved to have been delivered by him to the plaintiff's agent, was held suf- ficient to satisfy the statute, (n) And the memorandum must be signed by the party himself; the signature an agent will not suffice, (o) 824 ; [Merriam v. Wilkins, 6 N. H. 432 ; 56 Maine, 102 ; Smith v. Evans, 5 Humph. Hale v. Gerrish, 8 N. H. 374; Ford v. 70; Hill c;. Anderson, 5 Sm. & M. 216; Phillips, 1 Pick. 203 ; Conn v. Coburn, 7 Badger v. Phinney, 15 Mass. 359 ; Grace N. H. 372 ; Gooiiridge v. Ross, 6 Met. v. Hale, 2 Humph. 27 ; Cummings v. 487,490; Thing v. Libbey, 16 Maine, 55; Powell, 8 Texas, 80; Medbury v. Wat- 57; Aldrich v. Grimes, 10 N. H. 198. rous, 7 Hill, 110; Bigelow u. Kinney, S But see Wright v. Steele, 2 N. H. 51.] "Vt. 353.] (A) Hartley v. Wharton, 11 A. & E. (i 1 ) [There is a similar statute in 934 ; Hunt v. Mnssey, 5 B. & Aid. 902 ; Maine. Thurlow u. Gilmore, 40 Maine, Thornton v. Illingworth, 2 B. & C. 824. 378. But a writing in such a case is not (i) Borthwick o. Carruthers, 1 T. R. generally required in the United States.] 648; [Bay v. Gunn, 1 Denio, 108; Hani- (I) Harris w. Wall, 1 Exch. 122, 130; son v. Clifton, 17 L. J. Ex. 233.] and see Mawson v. Blane, 10 Exch. 206. (k) Holmes v. Blogg, 8 Taunt. 508 ; (m) Per Cockburn C. J. Rowe v. Hop- Wilson v. Kearse, Peake Add. Cas. 196 ; wood, L. R. 4 Q. B. 1, 3. Corpe v. Overton, 10 Bing. 252 ; [Bailey v. (n) Hartley v. Wharton, 11 A. & E. Bamberger, 1 1 B. Mon. 1 13 ; Harney v. 934. Owen, 4 Blackf. 337 ; Robinson;;. Weeks' (o) See Hyde v. Johnson, 3 Scott, 289. 222 CONTRACTS WITH INFANTS. 5. It is laid down as a general rule, that infancy is a personal Parties who P r ivilege, of which no one can take advantage but the contract with infant himself; (o 1 ) and that, therefore, although the liable to contract of the infant be voidable, it shall bind the other party ; (o 2 ) for, being an indulgence which the law allows to infants, to protect and secure them from the fraud and imposition of others, it can be intended for their benefit only, and is not to be extended to relieve those with whom they contract, from liability on such contracts. Were it otherwise, the infant's incapacity, in- stead of being an advantage to him, might in many cases turn greatly to his detriment, (p) Therefore an infant may sue an adult for breach of promise of marriage ; although the latter could not sue the former on such a promise. (^) So, although an infant is not liable on any mercantile contract, as he is not allowed to trade, still he may maintain an action thereon, (r) So, where an infant brought an action by his prochein ami, and recovered damages, and the attorney in the cause who was apointed by the prochein ami, received the damages so re- covered ; it was held that the infant might recover the amount (o 1 ) [Per Sawyer J. in Campbell v. Cooper, 34 N. H. 66 ; Gullett v. Lumber- ton, 1 Eng. 109; Rose v. Daniel, 3 Brev. 438 ; Voorhees v. Wait, 3 Green (N. J.), 343. This privilege extends to his legal representatives, after his death, or his priv- ies in blood, entitled to the estate upon avoidance ; but not to his surety, indors- ers, or any strangers, or his assignee, or other privy in estate only. Dominick u. Michael, 4 Sandf. 374 ; Oliver v. Houdlet, 13 Mass. 237 ; Boston Bank v. Chamber- lain, 15 Mass. 220; Whitney v. Dutch, 14 Mass. 457 ; Nightingale v. Withington, 15 Mass. 272; Chandler v. Simmons, 97 Mass. 511 ; Van Bramer v. Cooper, 2 John. 279 ; Jackson v. Todd, 6 John. 257 ; Roberts v. Wiggin, 1 N. H. 73 ; Hartness v. Thompson, 5 John. 160; Beeler v. Bullitt, 3 Marsh. 280; Johnson o. Packer, 1 Nott & McC. 1 ; United States v. Bainbridge, 1 Mason, 78 ; Parker v. Baker, 1 Clarke Ch. 136 ; Hussey v. Jewett, 9 Mass. 100 ; Jefford v. Ringgold, 6 Ala. 547 ; Parsons v. Hill, 8 Missou. 135 ; Austin v. Charlestown Female Sem- inary, 8 Met. 196 ; Whittingham's case, 8 Co. Rep. 43 ; Breckenridge v. Ormsby, 1 J. J. Marsh. 236 ; McCarty o. Murray, 3 Gray, 578 ; Hill v. Keyes, 10 Allen, 258 ; Hoyle v. Stowe, 2 Dev. & Bat. 322, 323.; Kendall v. Lawrence, 22 Pick. 543. The guardian of an adult may avoid any con- veyance of property executed by his ward while a minor, which might be avoided by the ward himself if capable of exercising the right. Chandler u. Simmons, 97 Mass. 508. But see Oliver v. Houdlet, 13 Mass. 237.] (o 2 ) [Thompson v. Hamilton, 12 Pick. 429 ; Boyden v. Boyden, 9 Met. 519, 521 ; McGinn v. Shaeffer, 7 Watts, 414.] (p) Bac. Abr. Infancy, (I.), 4; Holt u. Ward, Clarencieux, 2 Str. 937 ; Warwick o. Bruce, 2 M. & S. 205 ; Forrester's case, 1 Sid. 41 ; Farnham v. Atkins, lb. 446 ; 1 Vent. 51. (q) Holt v. Ward, Clarencieux, 2 Str. 937 ; [Hunt v. Peak, 5 Cowen, 475 ; Wil- lard v. Stone, 7 Cowen, 22 ; Pool v. Pratt, 1 D. Chip. 252.] (r) Warwick v. Bruce, 2 M. & S. 205. CONTRACTS WITH MARRIED WOMEN. 223 from the attorney, in an action for money had and received, (s) And where a minor, by himself and his guardian, agreed to let a farm to the defendant, — which the latter refused to hold when the minor came of age, upon the ground that he was under age at the time of the contract, — it was decreed in equity, that the defendant should take a lease, and should pay all costs, (t) So it is no defence to an action against an adult on a bill, that a prior party thereto is an infant, (u) And so a joint and several annuity granted by two persons, one of whom is an infant, though void as to the infant by the 53 Geo. 3, c. 143, s. 8, is still good as against the other grantor, (x) 5. Contracts with Married Women. 1 . Of the effect of marriage upon the contract of a, feme sole. 2. Of the contracts of a married woman, made after marriage. 1. Of the husband's right thereon. 2. Of the liability of the husband upon such contracts. 1 . In general. 2. On contracts made by the wife. 1. During cohabitation. 2. During separation by mutual consent, or in consequence of the husband's act or misconduct. 3. During separation, by reason of the act or misconduct of the wife. 3. When a married woman may be considered as a feme sole, with regard to her contracts during marriage. 1. Of the effect of Marriage upon the Contract of a, feme sole. 1. The benefit to be derived from an unexecuted contract entered into with a, feme sole, or the right to sue thereon, being , a chose in action, does not vest in the husband unless, tracts do not V6St flOSO - during the coverture, he does some act to reduce it into lately in the possession ; (V) but he acquires, by the marriage, only an inchoate or conditional right therein., («/) Nor can he sue (s) Collins v. Brook, 4 H. & N. 270; (x) Gillow v. Lillie, 1 Scott, 597. S. C. in Cam. Scac. 5 H. & N. 700. (a; 1 ) [See Blount v. Bestland, 5 Ves. (*) Clayton v. Ashdown, 9 Vin. Abr. (Am. ed.) 515, note (a), and cases cited ; 393, pi. 4. Thrasher v. Tuttle, 22 Maine, 335.] (u) Taylor v. Croker, 4 Esp. 187; per (y) Purdew v. Jackson, 1 Russ. 1,24, Bayley J. Drayton v. Dale, 2 B. & C. 299 ; 43. A judgment recovered by the wife, [Jones v. Darch, 4 Price, 300 ; Nightin- dum sola, is a chose in action within the gale v. Withington, 15 Mass. 273 ; Hardy meaning of this rule. See Fitzgerald v. v. Waters, 38 Maine, 450 ; Prazier v. Mas- Pitzgerald, 8 C. B. 592, 611. sey, 14 Ind. 382 ; Willis v. Twombly, 13 Mass. 204.1 224 CONTRACTS WITH MARRIED WOMEN. alone (2) on such a contract, whether the breach were before or after the coverture. («) And if the husband do not reduce the chose in action into his act- He must re- ua ^ possession, during the marriage, and the wife die, fntoVosses- suc h chose in action passes to her personal representa- tion, tive. (6) So that the husband, if he survive her, can only sue for the recovery thereof as administrator of his wife, (c) And if the husband die without taking out such letters of adminis- tration, his administrator cannot recover the wife's chosen in action ; but, in order to recover them, administration should be taken out to the wife, (d) (z) Lord Ellenborough is reported to and see Fleet u. Perrins, L. Rep. 3 Q. B. have held, that a bill of exchange or prom- issory note made to the woman whilst un- married, so far vests in the husband alone, on the marriage, though not payable until afterwards, that he may sue alone thereon, though she had not indorsed it. Macneil- ege v. Holloway, 1 B. & Aid. 218. But it is now decided that this is not so. Sher- rington v. Yates, 12 M. & W. 855, 865; Hart v. Stephens, 6 Q. B. 937 ; and see Richards v. Richards, 2 B. & Ad. 447. See Ex parte Barber, In re Shaw, 1 G. & J. 1 ; Prestwick v. Marshall, 5 M. & P. 513. Nor, in the event of the bankruptcy 536 ; 4 lb. 500 ; Com. Dig. Baron and Feme, (E. 3) ; Co. Litt. 351 b ; 2 Bl. Com. 435; Philliskirk o. Pluckwell, 2 M. & S. 395 ; Heard v. Stamford, Rep. t. Talb. 173. [But it has been held that the administration given by the statute (of New York) to the husband who sur- vives the wife, cannot be necessary to en- title him to the beneficial use of what he recovers. It merely confers a right to sue for choses in action, and if he can get them without suit, his title is as perfect as though he had letters of administra- tion. Whitaker v. Whitaker, 6 John. 112. of the husband, can his assignees sue alone But see Lowry v. Huston, 3 How. (Miss.) on such a bill or note. Sherrington v. Yates, supra. [See Morse v. Earl, 13 Wend. 271. In all cases where the cause of action survives to the wife, the husband and wife, at common law, must join in the suit, and he cannot sue alone. Clapp v. Stoughton, 10 Pick. 470; Hay v. Rogers, 4 Monroe, 225 ; McG ruder i. Stewart, 4 How. (Miss.) 204. And where the wife may be joined, the cause of action survives to her on her husband's death. Prescott v. Brown, 23 Maine, 305, 306.] (a) Com. Dig. Baron and Feme, (V. 394 ; Scott v. James, 3 How. (Miss.) 307 ; Wade v. Grimes, 7 How. (Miss.) 425 ; Huson v. Wallace, 1 Rich. Eq. 1 ; Stewart v. Stewart, 7 John. Ch. 229 ; Burleigh v. Coffin, 22 N. H. 125 ; Allen v. Wilkins, 3 Allen, 321 ; Jones v. Richardson, 5 Met. 247, 249; Stevens v. Beals, 10 Cush. 291 ; Bryan u. Rooks, 25 Geo. 622.] If hus- band and wife sue jointly on a cause of action accruing even after the marriage, in a case and under circumstances which justify him in joining her as a plaintiff, rid both recover judgment, she takes the Milncr v. Milnes, 3 T. R. 627, 631. If he debt by survivorship, if he die before it is do he shall be nonsuited. Bac. Abr. Baron and Feme, (It); Anon. 1 Salk. 282; Rumsey v. George, 1 M. & S. 180, 184. (b) Com. Dig. Baron and Feme, (F. 2). (c) Hart u. Stephens, 9 Q. B. 9.37 ; Sherrington v. Yates, 12 M. & W. 855 ; received. Bidgood o. Way, 2 Bl. R. 1236, 1239 ; Co. Litt. 351 a, note (1). (d) Betts u. Kimpton, 2 B. & Ad. 273. [See Chichester v. Vass, 1 Munf. 48; 2 Kent, 135 et seq. If the husband dies after being appointed administrator, leav- ing part of the estate not administered, CONTRACTS WITH MARRIED WOMEN. 225 So the death of the wife, pending an action commenced by her and her husband for the recovery of a debt which accrued to her dwm sola, abates the suit, (e) So, by a decree of judicial separation, the wife's choses in action, not reduced into possession at the date of such degree, become her absolute property, as if she were a, feme sole. (/) The question as to what amounts to a reduction into possession by the husband, is one of much nicety and difficulty, and one upon which the authorities are not by any means amounts to a . . . 11* reduction in- precise. 1 his, however, as certain, namely, that some- to possession thing specific must appear, from which the court may choses in ac- reasonably infer the disagreement of the husband to the tlon interest of the wife, and an extinguishment of her rights, (jf) And it seems probable that the only evidence of this would be held to be, either the fact of the husband having recovered judgment on the contract, or of his having actually received the money due there- on ; (h) or of its having been extinguished by some agreement to which the husband was a party ; e. g. where the maker of a promis- sory note, made to the woman before marriage, after the marriage gave a bond to trustees under a post-nuptial settlement for the sum due on the note, — the trusts of the settlement being for the bene- fit of the wife for life, of the husband for life, and then for the children, (i) But the mere payment to the husband of interest due on a promissory note made to the wife dwm sola, is not evidence of a reduction of the note into possession. (k~) his executor or administrator is entitled (Am. ed.) 515, note (a), and cases upon to be administrator de bonis -non in prefer- this point ; Parsons v. Parsons, 9 N. H. ence to her next of kin. Donnington v. 321 ; Tucker v. Gordon, 5 N. H. 564 ; La- Mitchell, 1 Green Ch. 243 ; Hendren a. tourette v. Williams, 1 Barb. 9 ; Bell v. Colgin, 4 Munf. 231 ; 2 Kent, 136.] Bell, 1 Kelly, 637 ; Woelper's Appeal, 2 (e) Checchi v. Powell, 6 B. & C. 255 ; Barr, 71 ; 2 Kent, 136, 137.] [Patteeo. Harrington, 11 Pick. 221. But (h) Searpellini v. Atcheson, 7 Q. B. when an action was brought in Massachu- 864, 876 ; Sherrington v. Yates, 12 M. setts by husband and wife for a debt due & W. 855, 865 ; Garforth v. Bradley, 2 her when sole, and pending the action she Ves. sen. 675, 676 ; Milner v. Milnes, 3 T. died, and he became administrator on her R. 627, 631 ; Co. Litt. 351 b. estate ; held he might come in and prose- (i) Per Bruce V. C. Burnham v. Ben- cute the suit as administrator. Pattee v. nett, 9 Jur. 888. See, further, on this sub- Harrington, 11 Pick. 221.] ject, Purdew v Jackson, 1 Russ. 1, 45. (J) Johnson v. Lander, L. Rep. 7 Eq. (k) Hart v. Stephens, 6 Q. B. 937. 228. [Nor is the fact, that he joined her in giv- (g) Searpellini v. Atcheson, 7 Q. B. ing a receipt for the principal, evidence of 864, 876 ; [Blount u. Bestland, 5 Ves. this. Timbers v. Kate, 6 Watts & S. 290.] vol. I. 15 226 CONTRACTS WITH MARRIED WOMEN. If the wife survives her husband, and a debt or demand accruing Rights of upon her agreement before coverture be then outstand- wile who sur- j n g^ g^g ; s en tit]ed to it, and his personal representative vives her husband. has no claim. (Z) And it is questionable how far even an assignment by the husband and wife, of the wife's chose in ac- tion, for a valuable consideration, is binding on the wife, where the husband dies in her lifetime, (m) If a married woman sue alone, upon a contract made before or during marriage, the defendant cannot avail himself of the coverture, except by plea in abate- Coverture of plaintiff must be pleaded in abatement. ment. (n) Liability of the husband on contracts of his wife duin sola* 2. The liability of the husband upon a contract entered into by his wife before coverture, is also conditional. For, al- though by the common law he is, during the marriage, liable jointly with her, (o) upon all her contracts made dum sola, how improvident soever they may have been, and although he may have received no fortune with her ; yet he cannot be sued alone, even upon his subsequent express promise to perform such a contract, unless his promise be founded on some new consideration, (jf) And upon her death his personal liability, that is, his liability in the character of husband, is at an end ; (c[) ( Va.) 340 ; Matheney v. Guess, 2 Hill Ch. 63 ; Poor v. Hazleton, 15 N. H. 564.] («) Milner v. Milnes, 3 T. R. 627, 631 ; Bendix „. Wakeman, 12 M. & W. 97 ; Dalton v. Midland Counties Railway Company, 13 C. B. 474. [See Parker u. Way, 15 N. H. 51; Lyman v. Ellery, 7 Vt. 508 ; Haines v. Corliss, 13 Mass. 659; Bates v. Stevens, 4 Vt. 545 ; Swan v. Wilkinson, 14 Mass, 295; Newell v. Mar- cy, 17 Mass. 341.] (o) See Morris v. Norfolk, 1 Taunt 212; Pitman v. Foster, 1 B. & C. 248. As to arresting her or taking her in ex- ecution, see Beynon v. Jones, 15 M. & W. 566 ; Slater v. Millo, 7 Bing. 606. (p) Bac. Abr. Baron and Feme, (E.); Heard v. Stamford, Ca. t. Talb. 173; S. C. 3 P. Wms. 409 ; Mitchinson v. Hewson, 7 T. R. 348. [See Warren v. Williams, 10 Cash. 79.] (7) Com. Dig. Baron and Feme, (2 C.) ; [Morrow u. Whitesides, 10 B. Mon. 411 ; (?) Co. Litt. 351 a; 1 Roll. Abr. 350 Com. Dig. Baron and Feme, (E.), 3 [Schuyler o. Hoyle, 5 John. Ch. 196 Hayward v. Hayward, 20 Pick. 517 ; Snow- hill v. Snowhill, 1 Green Ch. 30 ; Blount u. Bestland, 5 Ves. (Am. ed.) 515, in note ; Strong v. Smith, 1 Met. 476 ; Kint- zinger's Estate, 2 Ash. 455 ; Sayre v. Flournoy, 3 Kelly, 541 ; Legg v. Legg, 8 Mass. 99 ; Killcrease v. Killcrease, 7 How. (Miss.) 311; Rogers v. Bumpass, 4 Ired. Eq. 385 ; Stephens u. Beal, 4 Geo. 319 ; Glasgow e. Sands, 3 Gill & J. 96.] See Adams v. Lavender, M'Cl. & Y. 41, as to the effect of a decree in equity. (m) Hutchings v. Smith, 9 Sim. 137, 146 ; l'urdew v. Jackson, 1 Russ. 1. [See 2 Kent, 138; Mitford v. Mitford, 9 Ves. (Am. ed.) 87 ; Van Epps v. Van Deusen, 4 Paige, 64 ; Outcall v. Van Winkle, 1 Green Ch. 516; Hartman o. Dowdel, 1 Rawle, 279 ; Parsons v. Parsons, 9 N. H. 321,322; Browning v. Headley, 2 Rob. CONTBACTS WITH MARRIED WOMEN. 227 although he may become liable as administrator of his wife, in the event of his administering to choses in action belonging to her, and not reduced into possession by him during the coverture. And upon the same principle the wife, if she survive, is liable upon contracts made before marriage, (r) And now, by the 33 & 34 Vict. c. 93, ss. 12 and 15, a husband shall not, by reason of any marriage which shall take 33 & 34 vict place after the passing of that act, (s) be liable for the c - 93 > s - 12 - debts of his wife contracted before marriage. The discharge of the husband under the bankrupt acts, is a good defence to an action brought against him jointly Effect of his with his wife, for a debt due from the wife before cov- andCTbank- erture. (*) ru P t acts - But if the wife have a separate estate, it remains liable in equity for debts contracted by her before marriage, notwithstanding the bankruptcy of the husband, (u) 2. Of the Contracts of a Married Woman, made after Marriage. 1. By the common law, a married woman cannot acquire any legal right to personal property during her covert- of the hus- ure ; (w 1 ) and if she have money or goods in her posses- thereon at sion, and she lend the one or sell the other, the right common law - to recover the debt, or the value of the property thus parted with, vests in the husband. Thus, where husband and wife had separated by agreement, and, during the separation, he had paid her a certain sum weekly for her support ; and the wife, having saved a portion of her allowance, invested it in stock, which she afterwards sold, Warren v. Williams, 10 Cush. 79 ; Tabb (u 1 ) [But in the State of Maine, under v. Boyd, 4 Call, 453 ; Buckner v. Smyth, recent statutes, relating to the property of 4 Desaus. 371; Witherspoon v. Dubose, married women, the property in a negotia- 1 Bailey Ch. 166 ; Moon v. Henderson, 4 ble note may pass from the husband to the Desaus. 459 ; Donnington v. Mitchell, 1 wife during coverture, by his indorsement Green Ch. 243 ; Howes u. Bigelow, 13 and delivery of it to her. And after dis- Mass. 384, 390.] solution of the marriage, such indorsee (r) Mitchinson v. Hewson, 7 T. H. 360 ; may maintain a suit upon the note in her Woodman v. Chapman, 1 Camp. 189. own name. Motley v. Sawyer, 34 Maine, (s) 9th August, 1870. 540. And so, in many of the other states, (t) Sherrington v. Yates 12 M. & W. the law has been very much modified by 855, 864 ; Miles v. Williams, 1 P. Wins, statutes, in reference to the acquisition 249 ; Lockwood v. Salter, 5 B. & Ad. 303 ; and holding of personal property by mar- [Pifkin v. Thompson, 13 Pick. 64, 67.] ried women.] («) Chubb v. Stretch, L. R. 9 Eq. 555. 228 CONTRACTS WITH MARRIED WOMEN. and disposed of the proceeds by way of gift : it was held that the husband was entitled to recover the money so given, as money lent to the donee. (v~) So where a married woman deposited with the defendant the savings of certain rents, which had been received by trustees for her separate use, under a conveyance to that effect made before her marriage with the plaintiff; it was held that after the death of his wife, the husband could sue in his own right to re- cover the money so deposited, (x) So the husband is, by the common law, entitled to claim the earnings of the wife's personal labor ; (j/) and if a bond, bill of exchange, or promissory note be made payable to her during the marriage, he may interpose, and claim and recover the amount, (z) In like manner, a bill or note made payable to a married woman, passes by the indorsement of the husband alone, («) But in these cases the interest does not vest absolutely in the husband. For although, by the common law, a married woman is incapable of making a contract, she is capable of having a chose in action con- ferred upon her, which will survive to her in the event of her hus- band's death during the coverture, unless he has previously reduced it into possession. (J) (v) Messenger v. Clarke, 5 Exch. 388. (x) Bird v. Peagrum, 13 C. B. 639. (y) Com. Dig. Baron and Feme, (W.) ; Bac. Abr. Baron and Feme, (K.) ; Bidgood v. Way, 2 Bl. R. 1239 ; Carpenter v. Faus- tin, 1 Salk. 114; Holmes v. Wood, 2 Wils. 424 ; Chambers a. Donaldson, 9 East, 472. (z) Per Cur. Howard v. Oakes, 3 Exch. 136, 140; per Richardson J. Arnold u. Revoult, 1 B. & B. 443, 446 ; Ankerstein o. Clarke, 4 T. R. 616; Philliskirk ». Pluckwell, 2 M. & S. 393. Alitor, where the husband has authorized the bill or note to be made to his wife by name. Per Cur. Howard v. Oakes, 3 Exch. 136, 141. [See Commonwealth v. Manley, 12 Pick. 173 ; Sutton v. Warren, 10 Met. 451 ; Ma- gruder v. Stewart, 4 How. (Miss.) 204; Wade v. Grimes, 7 How. (Miss.) 425 ; Greenleaf v. Hill, 31 Maine, 562. Where a note was given to a married woman, who lived separate, it was held to become the property of the husband, although he never assented. Swan v. Gage, 1 Hayw. 3. See Brown v. Langford, 3 Bibb, 497. So where the husband lives apart from his wife, and in adultery with another woman, he may still claim the property and earn- ings of his wife. Russell i. Brooks, 7 Pick. 65 ; Turtle v. Muncy, 2 J. J. Marsh. 82 ; Washburn v. Hale, 10 Pick. 429. See Haskins v. Miller, 2 Dev. 360 ; Hawkins v. Craig, 6 Monroe, 257 ; Hyde u. Stone, 9 Cowen, 230 ; Morgan v. Thames Bank, 14 Conn. 99. But where a husband, imme- diately after the marriage, deserted his wife and married another woman, and never returned to his wife or contributed in any manner to her support, she was held entitled to the personal property ac- quired by her during such desertion. Star- rell v. Wynn, 17 Serg. & R. 30.] (a) Mason v. Morgan, 2 A. & E. 30. (b) Dalton v. Midland Counties Rail- way Company, 13 C. B. 474, 478 ; Scar- pellini v. Atcheson, 7 Q. B. 864, 875 ; Gaters v. Madeley, 6 M. & W. 423 ; and see Howard v. Oakes, 3 Exch. 136 ; [Say re v. Flournoy, 3 Kelly, 541 ; Fisk c. Cush- CONTRACTS WITH MARRIED WOMEN. 229 So where a party actually receives money or goods belonging to the husband, under a contract with the wife, there can be no doubt of the husband's right to follow such property, and to obtain redress from the holder thereof, though the latter was not at the time aware of the marriage. So, in the case of executory agreements, — the other contracting party to which was aware of the marriage, and yet contracted with the wife without consulting the husband, — it would probably be considered, that the husband, although he had not invested his wife with a prior authority to make the contract, would have the right either to repudiate such contract, or to sanc- tion it as having been entered into with his assent, through the agency of his wife, (c) But if the party entered into the contract with the feme, in ignorance of her marriage, and she had not at the time any authority to bind the husband, and did not profess to act for him, it might perhaps be considered, at least in the case of a contract executory on both sides, that the husband had not the power to ratify the contract, and that it would not bind the other party thereto, (d) And now, by the 33 & 34 Vict. c. 93, s. 1, the wages and earn- man, 6 Cash. 20; Ames v. Chew, 5 Met. v. Howland, 23 Miss. (1 Cush.) 264. She 320, 323; Draper v. Jackson, 16 Mass. cannot enter into a partnership contract. 480; Stanwood v. Stanwood, 17 Mass. 57 ; Collyer Partn. § 15. She cannot charge Phelps v. Ehelps, 20 Pick. 556 ; Adams v. herself as a party to a bill or note. Story Brackett, 5 Met. 280 ; Jackson v. Parks, Prom. Notes, § 85 ; Bayley Bills (2d Am. 10 Cush. 550. So, where the husband ed.), 41 ; Byles Bills (6th Eng. ed.), 48 ; and wife have been divorced a vinculo, she Sheppard v. Kindle, 3 Humph. 80 ; Wilson becomes entitled to her choses in action, v. Cheshire, 1 McCord Ch. 233 ; Goodhue not reduced into possession by him. Legg o. Barnwell, Eice Ch. 198. Her contracts v. Legg, 8 Mass. 99 ; Kintzinger's Estate, are void in law. As an agreement made 2 Ash. 455. But in Prescott v. Brown, 23 by her for the sale of her real estate, Maine, 305, it was held that the wife, sur- though made with her husband's assent, viving her husband, cannot maintain an and for a good consideration, is void, action for her personal labor, performed Lane v. McKeen, 15 Maine, 304. And for another during coverture, unless there where she has made a promissory note is an express promise of payment to her- during coverture, a promise by her after self ; and the court cite, as sustaining this her husband's death to pay the same with- doctrine, Pratt v. Taylor, Cro. Eliz. 61 ; out any new consideration, will not sup- Brashford v. Buckingham, Cro. Jac. 77, port an action against her. Vance u. 205 ; Buckley v. Collier, 1 Salk. 114.] "Wells, 6 Ala. 737. But where a married (c) See Smith v. Plomer, 15 East, 607. woman entered into >■ partnership agree- (d) See Saunderson v. Griffiths, 5 B. & ment with a third person, which was by C. 909. [A married woman cannot, in the express terms of the agreement to con- general, bind herself by her contracts, tinue beyond the death of the husband, it Sandford v. McKean, 3 Paige, 117; Selph was held, that the continuance of the 230 CONTRACTS WITH MARRIED WOMEN. ings of any married woman, acquired or gained by hereafter the Rights of the passing of that act, (e) in any employment, .occupation, th fe 33 I & e 34 or trac ^ e m w hich she is engaged, or which she carries on Vict. c. 93. separately from her husband, and also any money or property so acquired by her through the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earn- ings, money, or property, shall be taken to be property settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money, and property. By the same act, (/) any deposit thereafter made in a savings' bank, and any annuity granted by the commissioners for the reduc- tion of the national debt, in the name of a married woman, or in the name of any woman who may marry after such deposit or grant, shall be deemed to be her separate property. And by the same act, ( wife's adul- atter the adultery, and before she is separated from her tery during husband. (0 cohabitation. But where, in an action (a) for wares sold and delivered by the plaintiff to the wife of the defendant, it appeared that, before the delivery of these goods, there was a difference be supplied between the defendant and his wife ; and that they, for the space of two or three years, had not lived together ; and that the wife had declared to the defendant that she would charge him with 5001. in one term, and have him in jail in the next ; and that for many years the wife had an allowance for clothes of 501. per annum ; and no evidence was given that she had any occasion to have these clothes : Treby C. J. directed, that if the jury found the plaintiff innocent of the design of the wife to ruin the husband, and delivered the laces, &c, as goods fit for the wife, and upon the credit of the husband, without notice of the difference between them, that the husband should be obliged to pay the plaintiff. But that, if the plaintiff had notice of the difference between the hus- band and wife, and sold them only to enable the wife to ruin the husband, then the defendant would not be chargeable. And though the husband were chargeable heretofore, yet, after a solemn trial, and their differences made so public, he held that the husband should not be chargeable. And likewise, if the plaintiff was not privy to their differences, but delivered these goods innocently, yet if the goods were not suitable to the quality of the wife, the de- fendant should not be chargeable ; and if part only were suitable, he should be charged for that part only, (a 1 ) And the presumption that the wife had authority to bind her husband may be rebutted, e. g. by proof that he had Howpre . forbidden her to take up goods on his credit, although sumption of 1 ° . the wife's au- the person with whom she dealt had no notice of such thority may prohibition ; (6) or by showing that the wife was already (z) Robinson v. Greinold, 1 Salk. 119 ; cessities of the wife, and at the same time per Holt C.J. S. C. 6 Mod. 172; Bac. supplied her with articles which were not Abr. Baron and Feme, (H.). necessaries. Eames v. Sweetser, 101 Mass. (a) Martin v. Withers, Skinner, 358. 78. The burden of proof is on the plain- fa 1 ) [A tradesman can recover against tiff to show facts which create the hus- a husband for necessaries supplied to his band's liability. Per Hoar J, in Eames wife, though he has no knowledge of the v. Sweetser, 101 Mass. 80, 81.] circumstances of the husband, or the ne- (b) Jolly v. Eees, 15 C. B. N. S. 628. 236 CONTEACTS WITH MARRIED WOMEN. sufficiently provided with clothes ; so that there was no necessity for her ordering the goods in question, and therefore no implied authority from her husband to order them, (c) So, if the facts of the case show that the tradesman gave credit Credit given solely to the wife, and the jury find that to be the fact, to wife. tne husband will not be liable, (c 1 ) The plaintiff, (d) a milliner, in the course of six months supplied articles of dress to the wife of the defendant, an apothecary in a small country town, to the amount of nearly 200Z. The defendant and his wife were then livine; together, but there was no evidence whatever that he was aware that she had any dealings with the plaintiff. A former account of the same sort, that she had contracted with the plaintiff without her husband's knowledge, had been paid by her father ; and he had requested that no further credit should be given to her, without her husband's sanction. All the goods in question were subsequently ordered by her alone ; and the plaintiff took from her a promissory note for the amount, in her own name : and Lord Ellenborough said, " The action clearly cannot be maintained on the note, as the wife had no authority, general or special, from her husband as his agent to make it ; and I think he is not liable for any part of the goods, on this plain ground, that they were not supplied on his credit, and the plaintiff looked to the wife only for payment. The credit was given to the wife and not to the hus- band." So in Bentley v. Griffin, (e) the defendant was an attorney, not in very extensive practice, and depending on his practice for his in- come. He did not occupy with his family the whole of the house in which he lived. The plaintiffs had, in about a year and a half, furnished articles of fashionable dress to the defendant's wife to the amount of 183?. ; and they proved that the charges for the articles were reasonable. They had debited the wife in their books, and had been partly paid for their goods by three bills of exchange, which they had from time to time drawn, directed to the defendant by the name of Mr. Griffin ; but there was no proof that they were ever presented to him for acceptance ; and the wife had accepted (c) Rencaux v. Teakle, 8 Exch. 680. 4 B. & Aid. 255 ; and see Taylor r. Brit- (c 1 ) [See Stammers v. Macomb, 2 Wend, tan, 1 C. & P. 16, note; and Leggatt v. 454; Shelton v. Pendleton, 18 Conn. 417 ; Reed, lb. Moses v. Fogartie, 2 Hill (S. Car.), 335.] (e) 5 Taunt. 356, cited by Holroyd J. (d) Metcalfe u. Shaw, 3 Camp. 22 ; rec- in Holt v. Brien, 4 B. & Aid. 255. ognized by Holroyd J. in Holt v. Brien, CONTRACTS WITH MARRIED WOMEN. 237 the bills, signing only the initial letter of her christian name, and she had paid those acceptances. The husband and wife had lived together, and it was proved that the wife had in her husband's presence worn some of the articles furnished by the plaintiffs. For the defendant it was proved, that when some of the articles were sent home, the wife had directed her servant to put them away, that her husband might not see them ; that in the presence of the defendant and one of the plaintiffs, she had said, " that her hus- band never paid her bills, she always paid her own ; " that — one of the bills drawn on the husband, and accepted by the wife, and which the plaintiffs had paid away, being dishonored, — the plaintiffs had written in urgent terms to the wife, praying her to provide for the bill, but had made no application to the husband : and upon these facts Heath J. left it strongly to the jury to con- sider, whether the credit had not been given to the wife, and not to the husband ; and they having found a verdict for the plaintiffs, the court set it aside and granted a new trial. So, if goods which are not necessaries suitable to the wife's station be furnished by her orders, this circumstance is Goods not to be taken into consideration by the jury, as showing necessaries. that she had no such authority. (/) In such a case, therefore, it is incumbent on the tradesman who supplies the goods to make in- quiry as to the power of the wife to bind the husband ; and either to show the husband's express authoi-ity to her to make the pur- chase ; or to prove that he saw her wear or use the articles bought, without expressing any disapprobation, — which may be considered strong presumptive evidence of his authority. (#) But mere proof of the husband's cohabitation with his wife, is not sufficient to render him liable upon her contract for goods which are extrav- agant. (Ji) The case of Montague v. Benedict (i) is a leading authority on this subject. The plaintiff was a jeweller, and in the course of two months had delivered jewelry to the amount of 85Z. to the de- fendant's wife. It appeared that the defendant lived in a ready- furnished house, of which the annual rent was 200Z. ; that he kept (/) Lane v. Ironmonger, 13 M. & W. Com. Dig. Baron and Feme, (Q.) ; see 368 ; per Lord Abinger, Freestone v. generally, Montague v. Benedict, 3 B. & Butcher, 9 C. & P. 643, 647. C. 633, 638 ; and see Seaton v. Benedict, (g) Atkins v. Curwood, 7 C. & P. 756. 5 Bing. 28. Furniture may be necessaries ; (h) Emmett v. Norton, 8 C. & P. 506, see Hunt v. Blaquiere, 5 Bing. 550. 510 ; Bac. Abr. Baron and Feme, (H.) ; (i) 3 B. & B. 631, 638. 238 CONTRACTS WITH MARRIED WOMEN. no man-servant ; that his wife's fortune upon her marriage was less than 4,000?. ; that she had at the time of her marriage jewelry- suitable to her condition ; and that she had never worn, in her husband's presence, any articles furnished to her by the plaintiff. It appeared also that the plaintiff, when he went to the defendant's house to ask for payment, always inquired for the wife, and not for the defendant ; and it was held, that the goods so furnished were not necessaries ; (&) and that, as there was no evidence to go to the jury of any assent of the husband to the contract made by his wife, the action could not be maintained. (& 1 ) And the decision in Seaton v. Benedict (V) is to the same effect. That was an action to recover 28?. for silk, &c, supplied in two months to the defendant's wife. The plaintiff was a linen-draper and haberdasher at Richmond ; and it appeared that in the autumn the defendant had occupied, with his wife and family, part of a ready-furnished house in Twickenham. The plaintiff proved the delivery of the whole of the goods to the defendant's wife in his, the plaintiff's, shop, with the exception of one small parcel, which was delivered into her own hand at the defendant's door. There was no evidence of any authority from the defendant to the plaintiff, to give credit to his wife ; or that the defendant ever knew that she had dealt with the plaintiff. But it was proved that the de- fendant had abundantly supplied his wife with necessaries suited to his rank ; that her wardrobe was complete before she left town for Twickenham ; and it did not appear that he had ever seen her wear any of the articles furnished by the plaintiff. And upon this evidence, the court held that the husband was not liable. So, where the husband expressly warns a tradesman not to trust his wife, he cannot be charged with goods subsequently Effect of , notice to a furnished to her by the tradesman ; and a notice to the not to trust servant usually employed by the tradesman is notice to the wife. t ] le ] a tter. (m) It seems, however, that during cohab- it) In Bac. Abr. Baron and Feme, (H.), PhilHpson a. Hayter, L. Rep. C C. P. 38 ; 488, it is said, that " the jury are to deter- and see Ryder u. Wombwcll (in Cam. mine as to the wife's necessity and the hits- Scac), L. Rep. 4 Ex. 32. band's degree and circumstances." But.it (k l ) [Sec Carey v. Patton, 2 Ash. 140.] is clearly a question for the court, whether (I) 5 Bing. 28. there is any evidence on which the jury (m) Etherington v. Parrott, 1 Salk. 118; could properly find, that the articles sup- and see S. C. 2 Ld. Raym. 1006 ; Bolton plied to the wife were necessaries, suitable v. Prentice, Str. 1214. to the husband's degree and circumstances. CONTRACTS WITH MARRIED WOMEN. 239 itation a general or public prohibition, not proved to have reached the particular party, will not rebut the presumed authority of the wife, to bind her husband by her contracts for actual neces- saries, (n) It frequently happens, especially in the metropolis, that a married woman carries on a trade personally, and apparently on her own account. And it seems that if the husband liability reside with his wife, and is aware that she carries on carries on such trade, or if he receive the profits thereof, a presump- trade ' tion arises that the wife conducted the trade as his agent : so as to render him liable for articles furnished to the business, even although the invoices and receipts were in the name of the wife, and she was rated to and paid the poor and paving rates, (o) So the husband is liable, if it appear that the wife carried on the business by his authority, although he did not reside at the place of business, (p) And where, in a case in chancery, it appeared that the wife traded (n) Manby v. Scott, 1 Sid. 127 ; Todd v. Stokes, Ld. Raym. 444; Langworthy v. Hockmore, lb. note; Child v. Hardy man, Str. 875 ; Hinton v. Hudson, 1 Preem. 249 ; per Bayley J. Montague v. Benedict, 3 B. & C. 631, 635 ; [Walker v. Laighton, 31 N.H. 111.] (o) Petty v. Anderson, 3 Bing. 170 ; and see per Bovill C. J. Pbillipson u. Hayter, L. Rep. 6 C. P. 38, 41 ; Com. Dig. Baron and Feme, (Q-); cited per Littledale J. in 3 B. & C. 638. [Where the wife of a farmer, who was in the habit of directing the business of the farm, renting lands, purchasing tools, stock, merchandise, &c, purchased a span of horses for which she gave a note in her own name, it was held, i n an action against the husband to recover the value of the horses, that it was a ques- tion for the jury whether the wife did not act as his agent in making the purchase. Gates v. Brower, 5 Selden, 205. If a hus- band and wife live together, any business in which she may be engaged, is presumed (unless the contrary be shown), to be con- ducted by her with his privity, and as his agent. If he knows that she is conducting business in his or in her own name, and does not prohibit or prevent her, or make known his dissent or disapprobation, he is liable on such contracts as she may make, and is liable civilly for such frauds, or other torts as she may commit in the course of such business. Mackinley v. McGregor, 3 Whart. 369. If she buys goods without her husband's knowledge, and he after- wards learns that she has purchased them, and permits her to use them, or to retain possession of them, he is liable for the price. lb.] (p) See Meredith v. Pootner, 11 M. & W. 202, 204. [Where a husband deserted his wife and children, and left her keep- ing a boarding-house, without furnishing means for her support, and did not return nor make any provision for them ; it was held, that he was liable for her contracts made in the course of such business, in- cluding the rent for such house. Rotch v. Miles, 2 Conn. 638. If the husband, liv- ing in a state of separation from his wife, suffers his children to reside with the mother, he is liable for necessaries fur- nished them ; and she is considered his agent to contract for this purpose. Rum- ney v. Keyes, 7 N. H. 571. See Kimball v. Keyes, 11 Wend. 33 ; Walker v. Laigh- ton, 31 N. H. Ill ; Van Valkinburgh u. Watson, 13 John. 480.] 240 CONTRACTS WITH MAftKIED WOMEN. with her husband's consent, and gave bills for money, and he re- ceived the profits, and that the wife borrowed a sum of money and died ; upon a bill filed against the husband for the money, the chancellor directed an issue, to try whether the money was bor- rowed to carry on the trade, — observing that, if it were, the hus- band should be decreed to pay it. (g) But the mere fact of the husband having been seen occasionally at the place where the wife carried on business, is not sufficient to render him liable for debts contracted in such business, (r) Nor is a husband liable on a promissory note made by his Married wife Jn his name without his authority ; (r 1 ) and evi- ToTwnd hTr dence that the proceeds of such note were applied in husband by discharge of the husband's debts, is not sufficient to making a . . promissory prove his authority, (s') So, a married woman cannot, note, or ' . , . , borrowing ot her own authority, borrow money even for neces- saries, so as to charge her husband for money lent. (£) And a count for money lent by the plaintiff " to the defendant's wife," without adding " at his request," is bad, even after judg- ment by default, (w) But where a party lends money to a feme covert, and she pur- Eule in chases necessaries therewith, under circumstances which equity. would render the husband liable for necessaries, he is responsible to the lender in equity. Qc) If a man cohabit with a woman, and allow her to pass for his Liability of a wife, without being married to her, he is liable for goods coAaMs"with furnished to her, even by a tradesman who knew that a woman. ^he p ar ties were not married ; for his assent and author- ity are in such case to be inferred, (j/) And where the party who (q) Bowyer v. Peake, 2 Freem. 215, pi. A promise by a husband, after the death 288. of his wife, to repay a sum horrowed by her (r) Smallpiece v. Dawes, 7 C. & P. 40. during the coverture, " when convenient (i- 1 ) [See Leeds v. Vail, 15 Penn. St. 185. to him," has been held to be evidence to But he is liable on a note made by her, go to the jury, either of a previous au- even in her own name, where the proof thority for, or of a subsequent ratification shows that the business in transacting of her act. Per Williams J. West v. which the note was given, was his, and Wheeler, 2 C. & K. 714. she was acting as his agent. Gates v. (u) Brown v. Macnair, 4 Price, 48, 49. Brower, 5 Sclden, 205.] (x) Harris v. Lee, 1 P. Wms. 482, 483 ; (s) Goldstone v. Tovey, 8 Scott, 394. and see Jenner v. Morris, 29 L. J. C. 923 ; [<) Per Parker C. J. Earle u. Peale, 1 30 lb. 361. Salk. 387 ; Knox v. Bushell, 3 C. B. N. (y) Watson v. Threlkeld, 2 Esp. 637 ; S. 334 ; Stone o. Macnair, 1 Moore, 126. Eobinson v. Nahon, 1 Camp. 245. CONTRACTS WITH MARRIED WOMEN. 241 supplies the goods is aware, at the time, that the woman is not the wife of the defendant, the liability of the latter will continue, until such party has been informed that the connection lias termi- nated, (g) ' But it has been held, that where the true position of the parties is not known, and the defendant is sought to be charged _ „ ' . Continues merely on the ground of his having lived with a woman only during as his wife, he may discharge himself from liability for necessaries supplied to her after he and she have separated, by proving that they were not lawfully married ; (a) and this although she may have left him on account of ill-usage, and after a cohabi- tation of many years. (6) And it is reported to have been held, that if parties between whom the ceremony of marriage has been performed, Effect of and who have lived together as man and wife, after- dlvorce - wards separate upon a sentence of divorce being pronounced by the ecclesiastical court, declaring the marriage void ab initio ; the man is not liable for the subsequent contracts of the woman, made with- out his express sanction, even with a tradesman who had previously been in the habit of supplying her with goods, and who continued to furnish her with goods upon the supposition that she was a mar- ried woman, (c) But it w r ould appear, that a sentence of divorce pronounced by a foreign court would not defeat the tradesman's right. (cT) 2d. Let us now consider the husband's liability on his wife's contracts, made after their separation by mutual con- Howfarhus- sent, or in consequence of the husband's act or miscon- after s'epara- duct. tion - Where husband and wife live separate, it is incumbent on any tradesman with whom she deals to make inquiries ; and, if Burd f he trust the wife, he does so at his peril, (e) Moreover, proof is on . , . , .i j the plaintiff. if necessaries be supplied to a married woman, during (z) Eyan v. Sams, 12 Q. B. 460 ; 17 L. (rf) See M'Carthy v. Decaix, 2 Euss. & J. Q. B. 271. Myl. 614. (a) Munro v. De Chemant, 4 Camp. (e) Ozard v. Darnford, 1 Sehv. N. P. 215, and remarks thereon in Eyan v. Sams, 9th ed. 272; Hinton a. Hudson, Freem. 12 Q. B. 460, 463, 464. 248, 249. [See Blowers v. Sturtevant, 4 (6) See lb. as reported in Bingham on Denio, 46 ; Carey v. Patton, 2 Ash. 140 Infancy, 167, note. Walker v. Simpson, 7 Watts & S. 83 (c) Anstey v. Manners, Gow. 10. M'Cutchen v. M'Gahay, 11 John. 281 vol. i. 16 242 CONTRACTS WITH MARRIED WOMEN. her separation from the husband, mere proof of the fact of the separation is not sufficient to render him liable ; but the plaintiff must also prove that the separation occurred under such circum- stances as to give her an implied authority to bind him ; that is, he must show that the husband put his wife away, or that the sep- aration was by mutual consent. (/) And a husband who is separated from his wife, and who actually, „ , d according to his degree and circumstances, pays her a liable, who sufficient sum for her support, cannot be charged even quate allow- for necessaries provided for her ; (. Keyes, has no longer any authority to pledge his 7 N. H. 576." In this last case (Rumney credit, even for necessaries. Walker v. v. Keyes) it was said : " No reason can be Laighton, supra. See M'Cutchen v. M'Ga- CONTRACTS WITH MARRIED WOMEN. 247 So it has been held, that where the husband by his cruelty com- pels his wife to live apart from him, and there is no agreement for a separate maintenance, but only the payment of an allowance which is not sufficient to support the wife, regard being had to the means and position of the husband, he is liable for necessaries sup- plied to her. (7) And where a wife was living apart from her husband, for reasons which were sufficient to justify her in so doing, and she had the lawful custody of an infant child under the 9.& liablefomec- 3 Vict. c. 54 ; it was held that the reasonable expenses plied to wife, of providing for the child were part of the reasonable fat?on^fo? a " expenses of the wife, for which she could pledge her j^hercusto!- 17 husband's credit, (m) d y- It has also been held, that if a husband turn his wife out of doors, and it be necessary for her safety to exhibit ar- Otl]61" C3.SGS* tides of the peace against him, he is liable to an attorney employed by her for that purpose ; and that, if the attorney sue the husband for his costs, the court will not inquire whether or not the wife could have paid them out of her separate maintenance, (n) So it has been held, that the wife has authority to pledge the hus- band's credit, by employing a proctor for the purpose of obtaining a divorce a mensd et thoro propter scevitiam, provided there was reasonable cause for such a proceeding, (o) So, where the wife was indicted for keeping a disorderly house, which she had con- hay, 11 John. 281 ; M'Gahay v. Williams, (n) Turner «. Rookes, 10 A. & E. 47 ; 12 John. 293. The husband has a right Shepherd v. Mackoul, 3 Camp. 326 ; Wil- to choose his own residence, and, if it be a liams v. Fowler, M'Cl. & Y. 269. [But suitable one, it is the duty of the wife and the husband is not liable to an attorney children to conform to his wishes in this for professional services rendered to his respect. Walker v. Laighton, supra. See wife, in defending against a petition for Rumney v. Keyes, 7 N. H. 571 ; Kimball divorce, preferred by him, or in procuring v. Keyes, 11 Wend. 33. So a husband a divorce on her own petition. Wing v. living separate from his wife and children Hurlburt, 15 Vt. 607 ; Dorsey u. Good- has a right to order what persons shall enow, Wright, 120 ; Coffin u. Dunham, 8 supply them with necessaries, and if he Cush. 404. Nor is the wife herself liable, gives suitable orders to this effect, he may unless perhaps if she expressly promises prohibit all others from giving credit to to pay them after the divorce: Wilson v. them on his account. Kimball v. Keyes, Burr, 25 Wend. 386.] 11 Wend. 33-35. See Pidgin v. Cram, (o) Brown v. Ackroyd, 5 E. & B. 819 ; 8 N. H. 350.] and see Rice v. Shepherd, 12 C. B. N. S. (I) Baker v. Sampson, 14 C. B. N. S. 332; Re Hooper, 33 L. J. C. 300. [But 383. see Shelton v. Pendleton, 18 Conn. 417, (m) Bazeley v. Porder, L. Rep. 3 Q. B. which seems contra; Johnson v. Williams, 559. 3 Iowa, 97.] 248 CONTRACTS WITH MAEEIED WOMEN. ducted with her husband's concurrence ; it was held that he was bound to pay an attorney whom she employed to defend her, and by whom he knew she was defended without objecting thereto, (p) And where a husband had deserted his wife, it was held that the legal expenses incurred by her, preliminary and incidental to a suit for restitution of conjugal rights ; and in obtaining counsel's opinion on the effect of an ante-nuptial agreement for a settlement ; and as to the mode of dealing with certain claims which had been made upon her, for necessaries supplied to her after her husband's deser- tion ; and as to a distress for rent which was threatened on goods of the husband, which were in the house occupied by her, were necessaries for which she had authority to pledge his credit. (5) But where a wife, who had been ill-treated by her husband, in- dicted him for assaulting and imprisoning her ; it was held that a party who had advanced money to the attorney for the prosecution, without which he would not have undertaken it, could not recover the amount from the husband, as money supplied to procure neces- saries for her ; (r) the distinction being, that this was a proceeding taken, not for the protection of the wife, but for the punishment of the husband. («) Nor is the husband liable for the expenses of his wife's trustee, in procuring a counterpart deed of separation to be prepared and executed. (£) 3d. Of the husband's liability on contracts entered into by his wife, during their separation, occasioned by the act or misconduct of the wife. Where the wife is guilty of adulterv, (;/) and either elopes from Husband not her husband, or is expelled by him from his house on wtfeVguilty that account ; (u 1 ') or if she be guilty of adultery of adultery, -whilst living apart from her husband in consequence of his misconduct, and there has been no subsequent condonation of the offence, her implied authority to pledge his credit is put an end to ; (x) and he ceases to be liable for necessaries supplied to her (p) Shepherd v. Mackoul, 3 Camp. («) But the verdict of a jury, in a suit 326. in the divorce court, is not, per se, suffi- (q) Wilson v. Ford, L. It. 3 Ex. 63. cient evidence of this. Needham v. Brem- (/■) Grindell u. Godmond, 5 A. & E. ncr, L. R. 1 C. P. 583. 755. (u 1 ) [Hunter v. Boucher, 3 Pick. 289.] (s) Per Lord Campbell, Brown v. Ack- (x) Cooper v. Lloyd, 6 C. B. N. S. royd, 5 E. & B. 819, 826. 519 ; and see Hetherington „. Graham, 6 (0 Ladd v. Lynn, 2 M. & "W. 265. Bing. 135. [See Miller v. Miller, Saxton, CONTRACTS WITH MARRIED WOMEN. 249 during their separation, although he do not, generally or specially, prohibit tradesmen from trusting her ; (?/) and although he himself has likewise committed adultery, and his wife has offered to re- turn. (2) And where a tradesman has notice that a husband has turned his wife away on a charge of adultery, — but of which no proof is given, — the husband is liable for such articles only as the trades- man can prove were actually needed by the wife at the time he supplied them. («) But the adultery of the wife, after a formal separation by deed, whereby the husband covenanted with a trustee to allow when the her an annuity absolutely, was held to afford no answer tlly wiifnot" to an action for the arrears ; although there bad been be a defence - the sentence of an ecclesiastical court confirming the adultery. (J) And where it appeared that the defendant, knowing that his wife had committed adultery, separated from her, but allowed her to re- main in his house with two children bearing his name, and without making any provision for her, and she was living in the defendant's house in a state of adultery at the time the goods in question were delivered ; it was held that he was liable, (c) In the case just referred to, however, Eyre C. J. suggested, that if the plaintiff knew or ought to have known the circum- stances under which the wife was living, the husband might not have been liable. And it is clear that if, in such a case, the. hus- band, on separating from his wife, were to make a suitable provision for her support and that of his children, he would not be liable, even to a person who was not aware of the state in which the wife was living at the time. (jP) It is likewise well decided, that if a wife departs from her hus- band without his consent, and continue absent from him, Husband not he is not liable to a tradesman who, during the separa- liable when ,. , . . . ,„, ,,, i wife leaves tion, supplies her even with necessaries, {a 1 ) although him without she may not have been furnished with any means of 386; M'Cutchen v. M'Gahay, 11 John. s. 3, for not supporting his wife. Rexu. 281 ; M'Gahay v. Williams, 12 John. Flinton, 1 B. & Ad. 227. 293.] (a) Hardie v. Grant, 8 C. & P. 512. (y) Morris u. Martin, Str. 647, 706 ; (6) Jee v. Thurlow, 3 B. & C. 547 ; Hardie v. Grant, 8 C. & P. 512. [See per Baynon ». Batley, 8 Bing. 256. Parker 0. J. in Hunter v. Boucher, 3 (c) Norton v. Fazan, 1 B. & P. 226. Pick. 289.1 W Atkyns u. Pearce, 2 C. B. N. S. (z) Govier v. Hancock, 6 T. E. 603. 763. Nor is he liable under such circumstances (d l ) [See McCormick v. McCormick, 7 to the penalty imposed by 5 Geo. 4, c. 83, Leigh, 66.] 250 CONTRACTS WITH MARRIED WOMEN. support by her husband, and may not have been guilty of adul- tery. 0) So it was said by Lord Raymond C. J. in Child v. Hardyman (/) that, " if a woman elope from her husband, although she do go away with an adulterer or in an adulterous manner, the tradesman trusts her at his peril, and the husband is not bound. C./ 1 ) But it does not appear to have been decided whether, if the wife, not having been guilty of adultery, offer to return to her husband, and he refuse to receive her, this is sufficient of itself to revive her authority to pledge his credit. ( 2 ) or there is a consideration moving from her, the husband and wife may join, (x) It seems, moreover, that in these cases the wife is entitled, by survivorship, to the money due upon a judgment re- covered by both, (jf) But where husband and wife were seised in right of the wife, and the husband made a demise, expressly in his own right, it was held that the wife could not join in an action to recover rent due under such demise, (s) (r) Sect. 12. being the property of the husband only ; (s) Brashford v. Buckingham, Cro. Jac. Holmes & Wife v. Wood, cited in 2 Wils. 77, 205 ; Fountain v. Smith, 2 Sid. 128 ; 424; noticed by Lord Ellenborough in 3 Weller o. Baker, 2 Wils. 424. M. & S. 396. (t) Day v. Pargrave, 2 M. & S. 396, u. (v 1 ) [Magruder a. Stewart, 4 How. (b). (Miss.) 204. A husband may, in his own (u) Philliskirk v. Pluckwell, 2 M. & S. name, sue on a bond passed to him and wife, 393. or to the wife alone, during her coverture. (v) The declaration should expressly He may sue alone for a breach of promise show in what respect the wife has an in- made, to him and his wife after coverture, terest enabling her to join. Bidgood v. or to the wife only, to pay a sum of money Way, 2 Bl. 1236 ; Philliskirk v. Pluckwell, to her. Rogers v. Krebs, 6 Har. & J. 37.] 2 M. & S. 396. In the case of a bond or (t> 2 ) [See Prescott v. Brown, 23 Maine, note expressly payable to her, or to both, 305.] it would sufficiently appear, from the in- (x) Per Cur. Nurse v. Wills, 4 B. & strument itself, if set out truly in the Ad. 739, 744 ; Wills o. Nurse, 1 A. & E. declaration, that she had such an interest. 65 ; Johnson v. Lucas, 1 E. & B. 659. lb. Where husband and wife declared for (y) 1 Chit. PI. 6th ed. 31 ; Co. Litt. a debt due for a cure effected by the wife 351 a, note (1); Bidgood v. Way, 2 Bl. during coverture, and the declaration also 1239. And it seems she takes by survi- contained a charge for medicines supplied ; vorship money due on a decree in chan- it was held, upon general demurrer, that eery in a suit by both. Adams v. Lav- the wife was improperly joined, as she was ender, M'Cl. & Y.41. not the sole cause of action, the medicines (z) Harcourt v. Wyman, 3 Exch. 817. VOL. i. 17 258 CONTRACTS WITH ALIENS. A married woman may be an executrix or administratrix. And Married where a married woman, being executrix, took, during utrSTrad- " tne coverture, a note from her husband and A. B., for ministratnx. mo ney lent by her in her representative character to her husband, it was held that she might, after her husband's death, sue A. B. upon the note, (a) But where an estate was devised to a woman in trust for sale, Devisee in ar >d she afterwards married : it was held that, during trust for sale. t ] le cover t ure) sne CO uld not bind herself by contract, to convey the estate so devised to her in trust. (6) 6. Contracts with Aliens. By the common law, an alien ami or friend may trade and traffic Contract of an "with, a subject of this realm, either in this country or void aTcom'- abroad, and may, during peace, maintain an action in mon law. t] le English courts on any contract arising out of such transactions, (e) But the contract of an alien enemy is, by the com- mon law, absolutely void, and cannot be enforced by him, or by any person for his benefit, either at law or in equity ; (d) unless he (a) Richards u. Richards, 2 B. & Ad. 744. [But an action lies hy a widow against the executor of her husband, to re- cover the amount of a promissory note given to her by the husband during covert- ure, although the consideration was money owned by the wife at their marriage, and although the husband by his will gave his wife the amount of said note with other property, but which provision she waived and claimed her legal dower. Jackson v. Parks, 10 Cush. 550.] (b) Avery „. Griffin, L. Rep. 6 Ex. 606. (c) Co. Litt. 129 b ; Bac. Abr. Aliens, (D.). Before the 7 & 8 Vict. c. 66, a. 5, an alien friend could not take a lease of homes, &c. 32 Hen. 8, u. 16 ; Jevens v. Harridge, 1 Wms. Saund. 8, n. (1) ; and even an agreement to grant a lease to an alien was held to be void tinder that stat- ute; Lapicrre v. M'Intosh, 9 A. & E. 857 ; but an assignment of a lease to an alien was held not to be within the statute. ■\Vootton u. Steffenoni, 12 M. & W. 129. [In the courts of the United States alien friends are entitled to claim the same pro- tection of their rights as citizens. Taylor o. Carpenter, 3 Story, 458 ; S. C. 2 Wood. & M. 1 ; Coats v. Holbrook, 2 Sandf. Ch. 586 ; Byam v. Stevens, 4 Edw. Ch. 119. One alien may sue another in Massachu- setts, upon a contract made abroad, if the parties are transiently in the state. Rob- erts v. Knights, 7 Allen, 449. See 1 Dan. Ch. Pr. (4th Am. ed.) 48, note (2). But the courts of the United States have not jurisdiction where both parties are aliens' Barrell v. Benjamin, 15 Mass. 357; Tur- ner v. Bank of North America, 4 Dall. 1 1 ; Hodgson v. Bowerbank, 5 Cranch, 303 ; Roberts v. Knights, 7 Allen, 451. An alien friend is entitled to the benefit, and subject to the action, of the insolvent laws of the state where he resides. Judd v. Lawrence, 1 Cush. 53.] (rf) Roll. Ab. Alien, (B.) ; Brandon v. Nesbitt, 6 T. R. 23 ; A'lbrecht v. Sussman, 2 V. & B. 323. [No valid contract, except for the payment of ransom money, ex- pressed or implied, can arise or subsist be- tween a citizen of this country and the CONTRACTS WITH ALIENS. 259 came into this country sub salvo conducto, or live here by the king's license, (e) And where an alien enemy drew a bill on the defend- ant, a British subject resident in this country, and indorsed it to the plaintiff, an English-born subject resident in the enemy's country ; it was held that the plaintiff could not recover on the bill, although he did not sue thereon till after the return of peace. (/) So, by the common law, if there were a contract with an alien, and, whilst it was merely executory, war broke out between this country and that of the alien, this would dissolve the contract. (#) But where there was a contract with an alien, and a cause of ac- tion had accrued to him thereon before the commencement of hos- tilities, the effect of this was held to be, only to suspend his right to sue until the return of peace. (A) It would seem, however, that a considerable modification of the law on this subject must result from the 33 Vict. c. 14, Effect of « The Naturalization Act, 1870." For by sect. 2 of ^iLatifn tU " that act, an alien is empowered to take, acquire, hold, Act > 1870 -" enemy, without the permission of govern- ment. Griswold v. Waddington, 16 John. 438 ; Barrick v. Buba, 1 Com. B. N. S. 563. See Mussen v. Fales, 16 Mass. 334. The Francis & Cargo, 1 Gall. 448 ; 1 Kent, 68 ; Scholefield v. Eichelberger, 7 Peters, 586. But the ransom of a vessel and cargo captured by an enemy is lawful, and an agreement to pay the ransom money may be enforced. Griswold v. Waddington, 16 John. 438. See Miller v. Ship Resolution, 2 Dall. 10 ; Hannay i». Eyre, 3 Cranch, 242; Armstrong v. Toler, 11 Wheat. 258; Toler v. Armstrong, 4 Wash. C. C. 299 ; Crawford v. William Penn, 3 Wash. C. C. 484 ; S. C. 1 Peters, 106. The use of a license to pass from the enemy being un- lawful, one citizen has no right to sell to another such a license, or pass, to be used on board of an American vessel ; and no recovery can be had in a suit instituted on such an illegal contract. Patton v. Nich- olson, 3 Wheat. 204.] (e) Wells v. Williams, 1 Salk. 46; Boulton i. Dobree, 2 Camp. 163. As to forfeiture to the crown of a debt to an alien, lb. 43 ; per Lord Ellenborough, Wolf?;. Oxhulm, 6 M. & S. 102, 103. (/) Willison v. Patteson, 7 Taunt. 439. [Even alien enemies, resident in the coun- try, until they are ordered out of it by legal authority, may sue and be sued as in time of peace ; for the reason that protec- tion to their persons and property is due. and implied from the permission to remain. Wells v. Williams, 1 Ld. Ray. 282 ; Clarke <,. Morey, 10 John. 69 ; Russell v. Skip- with, 6Binney, 241.] {g) Abbott on Ship. 9th ed. 485, 486 ; and see Esposito v. Bowden, 7 E. & B. 763. (h) Elindt o. Waters, 15 East, 260 ; Ex parte Boussmaker, 13 Ves. 71 ; [1 Dan. Ch. Pr. (4th Am. ed.) 51; Alcinous v. Nigren, 4 El. & Bl. 217; Buchanan v. Curry, 19 John. 137 ; Hamilton v. Eaton, 2 Marsh.C.C. 1; Clemontsonr. Blessig, 11 Exch. 135, 141, note ; Hamersley v. Lam- bert, 2 John. Ch. 508. In Massachusetts the statutes of limitation of personal ac- tions are expressly suspended in favor of aliens during the war. Genl. Sts. Mass. c. 155, § 8. A plea that the plaintiff is an alien enemy is sufficiently answered by a treaty of peace, made after the plea was filed. Johnson r. Harrison, 6 Litt. 226. The court will take notice of the fact, though the plaintiff do not reply to it. 260 CONTRACTS WITH ALIENS. and dispose of real and personal property of every description, in the same manner in all respects as if he were a natural-born British subject. And as the statute appears to give this power to all aliens, whether they be the subjects of a friendly state or not, and whether they reside in this country or not ; and the power so given cannot be enjoyed without entering into contracts for the taking, acquiring, and disposing of real and personal property ; it seems to follow, that all aliens are now enabled to enter into such contracts, and may now enforce, by action in our courts, any obligation arising there- from. Where a British subject permanently resides and is proved to be voluntarily domiciled in a foreign country, the govern- EngUshman J . .,,?.. , , domiciled in ment of which is at war with this, it has been held, that war with he so far loses his rights as a British subject, that he can- not sue in our courts, (i) But an action may be main- tained here by a neutral, on a promissory note given to him by a British subject in an enemy's country, for goods sold there. In such a case, as was said by Lord Ellenborough, " the contracting parties were not alien enemies, and it does not follow that the con- tract was void, though made in an enemy's country. The plain- tiffs, who were domiciled in Switzerland, might lawfully sell their goods in Paris ; and it was not proved that the defendant, who was a British subject, purchased them there for any illegal purpose." (h) And it appears that a British subject domiciled in a foreign state in amity with this country, may lawfully exercise the priv- ileges of a subject of the place where he is resident, to trade with a nation in hostility with this. (J) So a native of a foreign state in amity with this country, who is Or a prisoner taken in an act of hostility on board an enemy's fleet, and brought to England as a prisoner of war, is not dis- abled from suing, even during his imprisonment, on a contract entered into by him whilst he was such prisoner, (m) Nor can a British Johnson u. Harrison, supra. So the court ized in a foreign state, may cease to be a will take notice of the existence of war British subject, and become an alien, with the country of the alien. Alcinous And it is presumed that, in this event v. Nigren, 4 El. & Bl. 217.] happening, he would enjoy the same rights (i) M'Connell r. Hector, 3 B. & P. 113 ; as are conferred on other aliens by sect. 2 The Ocean, 5 Rob. Adm. Rep. 90; The of that act. Indian Chief, 3 lb. 22 ; O'Mealcy v. Wil- (k) Houriet v. Morris, 3 Camp. 303. son, 1 Camp. 482 ; Roberts v. Hardy, 3 M. (I) Bell v. Reid, 1 M. & S. 726. & S. 533. By the 33 Vict. c. 14, s. 6, a (m) Sparenburgh v. Bannatync, 1 B. & British subject, who is voluntarily natural- P. 163; The King v. Depardo, 1 Taunt 28. or in a friendly state. CONTRACTS WITH OUTLAWS, ETC. 261 subject who is a prisoner of war in an enemy's country, be deemed an alien enemy : and therefore, a bill drawn by such prisoner on a British subject in this country and indorsed to an alien enemy, will become available in the hands of the latter upon the cessation of hostilities. (n~) 7. Outlaws (n 1 ) and Persons convicted of Treason or Felony. A person outlawed in a criminal prosecution or civil suit (o) is oiviliter rnortuus : he loses the protection of the law ; so ii . • i ■ -ip They are ci- tnat he cannot appear in court, in his own right, tor any vUiter mor- purpose except to reverse his outlawry, (j?) And hence it is that the outlawry is pleadable, even to an action founded on a personal demand which accrues after the outlawry. (^) So a person outlawed in a civil suit forfeits his goods, chattels, and choses in action, to the crown ; (r) whilst one who is out- lawed for treason or felony not only forfeits these, but also his lands and tenements. (V) And the same law of forfeiture applied, until recently, to per- sons convicted of treason or felony, (s) But now by _ J K J J Conviction the 33 & 34 Vict. c. 23, s. 1, it is enacted, that from fortreasonor ' , . . felony does and atter the passing ot that act (t) no conviction or not cause judgment of or for any treason or felony, shall cause any attainder or corruption of blood, or any forfeiture or escheat. By the same act, however, (u) a convict, — that is, one against whom, after the passing; of the act, judgment of death i ii, Convict can- or of penal servitude shall have been pronounced or not contract recorded by any court of competent jurisdiction in Eng- (n) Antoinev. Morshead, 6 Taunt. 237 ; Dig. Utlagary, (D.), 1, 2 ; Britton v. Cole, Willison v. Patteson, 7 lb. 447, 449. 1 Salk. 395 ; Bac. Abr. Outlawry, (D.), 2. (n 1 ) [The process of outlawry is gene- And see 33 & 34 Vict. c. 23, s. 1, which rally unknown in the United States. 1 provides, that nothing in that act shall af- Dan. Ch. Pr. (4th Am. ed.) 45 ; 7 Dane feet the law of forfeiture consequent upon Abr. 313.] outlawry. (o) See Tidd, 9th ed. 131. (s) Bullock v. Dodds, 2 B. & Aid. 258. (p) Re Mander, 6 Q. B. 867, 873 ; Al- In the case of a felon, the forfeiture dated dridge v. Buller, 2M.4W, 412. • from the day of the conviction, not from (q) Slade's case, 4 Co. 93, 95; and see the commission day of the assizes at which Co. Litt. 128 b. When the cause of action he was tried. Whitaker v. Wisbey, 12 C. is forfeited by the outlawry, such outlawry B. 44. In cases of treason, the forfeiture is a good plea in bar. But in any other related back to the time of the treason case it must be pleaded in abatement. lb. committed. 4 Bl. Com. 381. And see Sowerby v. Wadsworth, 2 H. & W 4th July, 1870. C. 701. (u) Sect. 8. (?•) Slade's case, 4 Co. 93, 95; Com. 262 CONTRACTS WITH OUTLAWS, ETC. land, Wales, or Ireland, upon any charge of treason or felony, (m 1 ) — is disabled, while subject to the operation of that act, from bring- ing any action at law or suit in equity, and from alienating or charging any property, and from making any contract, except dur- ing such time as he may be lawfully at large under any license, (w) So, a convict may acquire, but he cannot enjoy ; he may acquire, Property ac- no * ^y virtue of any capacity in himself, but because, if quired by a gift b e made to him, the donor cannot make his own convict vests ° in adminis- act void, and reclaim his own sift- But he cannot enjoy, trator under , ° ,.,..,, J 33 & 34 Vict, because, although the donor cannot reclaim his girt, yet, ' by the common law, the thing given vested in the crown by its prerogative ; (w) and now, by the 33 & 34 Vict. c. 23, s. 10, it vests in the administrator or other person who may be appointed in that behalf, under that act. But outlawry in the plaintiff is no answer, if he sue in auter droit. Thus, an executor or administrator may sue, al- Outlaw may , sue in auter though he be outlawed. And so a mayor and common- alty may sue, although the mayor be outlawed, (x) And the right of the outlaw, or convict, to the protection of the Eight only ^ aw ' * s on ^ y suspended, it is not irrecoverably lost : and suspended. the disability will be removed, in the case of an outlaw, by the reversal of the outlawry, and, in the case of a convict, by his ceasing to be subject to the operation of the above act ; (?/) — whereupon, as a matter of course, the competence to contract, and right to sue, will revive, (z) And there can be no doubt, that a party may be sued on a con- tract made by him whilst he stood outlawed or convicted, IVI3.V be susd. although his own incapacity has not been removed, (a) (u 1 ) See sect. 6. him, or such other punishment as may, by (b) See sect. 30. competent authority, have been substituted (w) Bullock v. Dodds, 2 B. & Aid. 258, for such full term, or shall have received 275. See The King v. The Inhabitants of her Majesty's pardon for the treason or Haddenham, 15 East, 465. felony of which he may have been con- (x) Co. Litt. 128 a. victed, he shall thenceforth, so far as re- ly) By sect. 7, when any convict shall lates to the provisions thereinafter con- die or be made bankrupt, or shall have tained, cease to be subject to the operation suffered any punishment to which sentence of that act. of death, if pronounced or recorded (z) Co. Litt. 128 b; Bac. Abr. Outlaw- against him, may be lawfully commuted, ry, (D.). or shall have undergone the full term of (a) Sid. 60 ; Cro. Jac. 426 ; Macdonald penal servitude for which judgment shall v. Ramsay, Fost. Cr. L. 61. have been pronounced or recorded against CONTRACTS WITH BANKRUPTS. 263 8. Bankrupts. 1. Of the Bankrupt's Promise to pay a Debt barred by the Order of Discharge. 2. Of the Contracts of a Bankrupt made before the Order of Discharge takes effect. 1. Of the Bankrupt's Promise to pay a Debt barred by the Order of Discharge. Although the legal remedy of the bankrupt's creditors was held to be barred by his discharge, still the law would, be- „ „ , „, J ° ' ' Before the 24 fore " The Bankruptcy Act, 1861," give effect not only & 25 Vict, to a new contract founded on a debt contracted before a promise the bankruptcy, but also to an express promise by the was va bankrupt to pay such debt ; (5) although such promise was not founded on any new consideration, and whether it were made be- fore or after his certificate had been obtained, (e) But it was held, (6) Fleming v. Hayne, 1 Stark. 370. (c) Earle v. Oliver, 2 Exch. 71 ; Kirk- patrick v. Tattersall, 13 M. & W. 766 ; Freeman v. Fenton, 1 Cowp. 544; Twiss i. Massey, 1 Atk. 67 ; Ex parte Burton, lb. 225; Birch v. Sharland, 1 T. R. 715 ; Bes- ford v. Saunders, 2 H. Bl. 116 ; Haywood v. Chambers, 1 D. & E. 411 ; Brix v. Bra- ham, 1 Bing. 281 ; per Gaselee J. Swee- nie v. Sharp, 4 Bing. 37. [Such is now the law very generally, in the United States. See McWillie v. Kirkpatrick, 28 Miss. (6 Cush.) 802; Badger «. Gilmore, 33 N. H. 361 ; Scouton v. Eislord, 7 John. 36 ; Erwin v. Saunders, 1 Cowen, 249 ; Shippey v. Henderson, 14 John. 178; Maxim v. Morse, 8 Mass. 127 ; Turner v. Chrisman, 20 Ohio, 332; Williams v. Bobbins, 32 Maine, 181 ; Valentine v. Fos- ter, 1 Met. 522, 523 ; Spooner v. Russell, 30 Maine, 454; Trumbull v. Tilton, 1 Fos- ter (N. H.), 128; La Tourrette u. Price, 28 Miss. (6 Cush.) 702. A debt, dis- charged under the United States bankrupt act of 1841, is a sufficient consideration for a promise made after the decree of bankruptcy, to pay the same demand. Corliss v. Shepherd, 28 Maine, 550. And in this case it was held that a new promise to pay a debt, which otherwise would have been discharged by proceedings in bank- ruptcy, made after the decree in bankrupt- cy, and before the certificate of discharge, is valid and binding upon the party mak- ing it. Corliss u. Shepherd, supra ; Otis v. Gazlin, 31 Maine, 567. But a promise by the maker to the payee of a note, dis- charged by the maker's bankruptcy, that he would pay the same, has been held not to pass to the indorsee. Wardwell v. Fos- ter, 31 Maine, 558 ; White v. Cushing, 30 Maine, 267 ; Depuy v. Swart, 3 Wend. 135 ; Moore v. Viele, 4 Wend. 420 ; Wal- bridge v. Harrison, 18 Vt. 448 ; Carson v. Osborne, 10 B. Mon. 155 ; Graham v. Hunt, 8 B. Mon. 7. These decisions rest upon the ground that the discharge in bankruptcy annuls the validity of the note, and does not merely suspend it ; and therefore the action is grounded on the new promise, and not on the old demand. White v. Cushing, 30 Maine, 267 ; Carson v. Osborne, 10 B. Mon. 155. But this doctrine has been expressly rejected in Way v. Sperry, 6 Cush. 238, where it is held, that such a promise to the payee, is a promise to pay him or his order, or bearer, according to the tenor of the note. Badger v. Gilmore, 33 N. H. 361. As to the effect of a conditional promise by the bankrupt in such cases, see Samuel o. Cravens, 5 Eng. 380 ; Mason v. Hughart, 9 B. Mon. 480 ; Patten v. Ellingwood, 32 Maine, 163; Scouton v. Eislord, 7 John. 36 ; Shippy v. Henderson, 14 John. 178 ; Branch Bank v. Boykin, 9 Ala. 320 ; Bush 264 CONTRACTS WITH BANKRUPTS. that the promise must be one which bound the bankrupt person- ally to pay, notwithstanding his certificate. It must have been a promise that lie, and not his estate, would pay ; and accordingly the law was, that the mere acknowledgment of a debt by the bank- rupt, (e 1 ) though implying a promise to pay, amounted to no more than an account stated ; and that, though in writing, it was a prom- ise which the certificate would bar. (d~) And not only was an existing debt which would be barred by the certificate, and which was due by the bankrupt to the plaintiff at the time of the bank- ruptcy, held to he a good consideration to support a subsequent promise to pay it ; but a mere liability to repay the plaintiff when he should have first paid the debt for the bankrupt, was likewise held to be a sufficient consideration to support such a promise, (e) And it was held, further, that such a liability was a good considera- tion, to support either a conditional or an absolute promise by the bankrupt to pay ; and also for a promise by him, to pay interest on the sum which the plaintiff might have to pay on his account, as well as to pay such sum itself. (e~) But by " The Bankruptcy Act, 1861," (/) it was enacted, that after the order of discharge took effect, the bankrupt But "was made invalid should not be liable to pay or satisfy any debt, claim, or demand provable under the bankruptcy, or any part thereof, on any contract, promise, or agreement, verbal or written, made after adjudication ; and that if he were sued on any such contract, promise, or agreement, he might plead in general, that the cause of action accrued pending proceedings in bankruptcy, and might give that act and the special matter in evidence. u. Barnard, 8 John. 407. By statute in to pay the remainder. Merriam v. Bay- Maine a writing is necessary to the valid- ley, 1 Cush. 77 ; White v. Cushing, 30 ity of a promise by a bankrupt to pay a Maine, 267 ; Stark v. Stinson, 23 N. H. debt discharged under the bankrupt act. 259. Nor does the payment of interest Williams v. Bobbins, 32 Maine, 181 ; Act on the entire sum of the principal. Cam- Aug. 3, 1848. So in Massachusetts, Act bridge Inst, for Savings v. Littlefield, 6 1856, u. 18.] Cush. 210. A promise by the bankrupt, (c 1 ) [The mere recognition or acknowl- to give a new note for such a debt, is not edgment by a bankrupt of a debt which such an express promise as will sustain an has been discharged by bankruptcy, does action upon the original debt. Porter v. not create a legal obligation on him to pay Porter, 31 Maine, 169.] the debt. The promise must be express. (d) Kirkpatrick v. Tattersall, 13 M. & Porter v. Porter, 31 Maine, 169 ; Merriam W. 766, 770. r. Bayley, 1 Cush. 77. Payment by the (e) Earle v. Oliver, 2 Exch. 71, 89. bankrupt of part of the principal of the ( /) 24 & 25 Vict. c. 134, s. 164. original debt does not revive the obligation f CONTRACTS WITH BANKRUPTS. 265 And a bond was held to be a " contract, promise, or agreement," within the meaning of this section. (/ x ) But it would seem, that the above section did not make the " contract, promise, or agreement " wholly void ; and that, there- fore, a bill of exchange given by a bankrupt in respect of a debt, claim, or demand, from which he had been discharged by the bank- ruptcy, was still available, as against him, if it were in the hands of a bond fide holder for value, (g) And there does not appear to be any provision in " The Bank- ruptcy Act, 1869," (K) rendering such a promise in- sembU that valid. So that the law on this subject, so far as regards foefo*^™™" promises made by persons adjudicated bankrupt under J^"^® 3 C 2 that act, may be taken to be the same as it was in the Pl- ease of promises made by persons who became bankrupt prior to " The Bankruptcy Act, 1861." 2. Of the Contracts of a Bankrupt, made before the Order of Discharge takes effect. A bankrupt is clearly responsible upon any contract which he makes after his bankruptcy, unless it be a contract within the 24 & 25 Vict. c. 134, s. 164, to pay a debt barred iiaWe mp i i • i p t t thereon. by his order ot discharge. But in bankruptcies under the 24 & 25 Vict. c. 134, the asignees are entitled to all the personal estate which the bankrupt possessed at the time of his bankruptcy, or which he may action there- have acquired after the bankruptcy, and before he ob- assignees or tained his discharge, (i) And " The Bankruptcy Act, tmstee - 1869," contains a similar provision, vesting in the trustee, inter alia, all personal property which may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or which may be acquired by or devolve on him during its continuance. (/) And under the" term personal property are comprised, not merely personal chattels and debts, properly so called, but all rights of action for breaches of contract relative to the personal estate of (Z 1 ) See Kidson v. Turner, 3 H. & N. This statute excepts the bankrupt's tools 581. of trade, and the necessary wearing ap- (g) Per Cockbnrn C. J. and Crowder parel and bedding of himself, his wife and J. Goldsmid v. Hampton, 5 C. B. N. S. children, not exceeding in the whole the 94, 108, 110. value of twenty pounds; thereby reenact- (h) 32 & 33 Vict. c. 71. ing the 17 & 18 Vict. c. 119, s. 25, which (i) 12 & 13 Vict. c. 106, s. 141. was repealed by the 24 & 25 Vict. c. 134, (./) 32 & 33 Vict. c. 71, ss. 15, 17. s. 230. 266 CONTRACTS WITH BANKRUPTS. the bankrupt, whereby that estate is prevented from coming to the hands of the assignees or trustee, or is diminished in value ; as well as the right of action in respect of every beneficial contract, executory or part executed, which the assignees or trustee could perform, and thereby add to the personal estate. (&) The trustee, therefore, is now entitled, — as the assignees in bankruptcies under the 24 & 25 Vict. c. 134, likewise are, — to the benefit of any contract which the bankrupt may make, or may have made, at any time be- fore his discharge. (J) And where the bankrupt had entered into a contract, before the fiat, to do certain work, and had partly ex- ecuted it before that time ; but the work was not completed until after the fiat, and there was evidence that he had acted as the agent of the assignees in so completing it ; it was held that, the contract being entire, the assignees were entitled to recover the whole amount, (to) So where A. entered into an agreement with B. and C, to serve them for seven years, they agreeing to pay A. at the rate of three guineas weekly, and " the party making default to pay to the other the sum of 500?. by way or in the nature of spe- cific damages ; " and, during the term, A. was dismissed ; after which he became bankrupt : it was held, that the right of action in respect of the breach of this agreement passed to his assignees, (n) And so, where the assignees of an uncertificated bankrupt agreed, for a valuable consideration paid to them by a third person, to leave the bankrupt's furniture, &c, in his possession ; and afterwards, notwithstanding such agreement, seized the same ; it was held, in trespass by the bankrupt, that they were justified in so doing, as the bankrupt, being uncertificated, was not entitled to retain any property as against his assignees, (o) Upon the same principle, where the house of the plaintiff, an uncertificated bankrupt, was broken open, and effects acquired by him subsequently to his bank- (k) Beckham' v. Drake, 8 M. & W. 846, certificated bankrupt, vests in his assign- 853 ; Gibson a. Carruthers, lb. 321 ; ees. Hesse v. Stevenson, 3 B. & P. 565. Wright v. Fairfield, 2 B. & Ad. 727 ; and (I) Kitchin v. Bartsch, 7 East, 53. In see 32 & 33 Vict. c. 71, ss. 4, 15. They this case the bankrupt sued on a note made may maintain an action for damages ac- to him, and for money lent by him, after cruing to the estate, by reason of the bank- his bankruptcy. rupt's landlord (the defendant) having (m) Whitmore v. Gilmour, 12 M. & W. omitted to pay the ground landlord, where- 808. by the bankrupt's goods were distrained. (n) Beckham v. Drake, 2 H. L. Cas. Hancock v. Caffyn, 8 Bing. 358. A patent 579; Drake v. Beckham, 11 M. & W. right obtained from the crown by an un- 315. (o) Nias v. Adamson, 3 B. & Aid. 225 CONTRACTS WITH BANKRUPTS. 267 ruptcy were taken by the defendants, — who had become his cred- itors since the bankruptcy, and did not know who were the assign- ees under the bankruptcy ; and the defendants, being sued by the bankrupt in trespass, obtained, after a rule for plea, a surrender of the assignee's interest in the effects seized ; it was held, that this was a ratification of the seizure, and that the plaintiff could not recover, (p) But the right of the trustee or assignees, in regard to contracts made, and property acquired by the bankrupt after his But not abs0 . bankruptcy, and before the order of discharge takes iatel J- effect, is not absolute. It is a power or right to be exercised by themselves only, at their option ; and, until they elect to ex- ercise it, the bankrupt is quodam modo the owner of property ac- quired, and is legally entitled to sue upon contracts made by him after his bankruptcy, although he has not obtained his order of dis- charge. Accordingly it is now clearly settled, that an undischarged bank- rupt may sue on an agreement made by him after his Bankrupt bankruptcy, unless the assignees interpose and claim "^S^es the benefit thereof, (g) interpose. Chippendall v. Tomlinson (r) was one of the first cases on this subject. It was an action on an attorney's bill. The defendant pleaded the bankruptcy of the plaintiff before the bill was incurred. To this the plaintiff replied, that the work in question was clone after the issuing of the commission, and for the necessary support of himself and family ; and the defendant rejoined that, before the exhibition of the plaintiffs bill, his certificate had not been allowed. To this rejoinder there was a general demurrer ; and after argument, the plaintiff had judgment. And the same doctrine has been acted upon in actions for the recovery of money due on a promissory note, made payable to, and indorsed by a bankrupt whilst uncertificated ; (s) {p) Hull v. Pickersgill, 1 B. & B. 282. 10 Ves. jun. 94; Ex parte Lees, 16 lb. (?) Herbert v. Sayer, 5 Q. B. 965 ; Fy- 474 ; Ex parte Storks, 3 V. & B. 105 ; son v. Chambers, 9 M. & W. 460, 466. Holt N. P. C. 174, note. A bankrupt And see the analogous cases under the 1 may sue for the conversion of after-ac- Geo. 4, c. 119, and 1 & 2 Vict. c. 110, a. quired goods, if his assignees do not inter- 37; Jackson . 147 ; McClintick v. Cummins, 3 McLean, Readfield, 27 Maine, 145; Joyner v. 158. Where a person was held in custody School District in Egremont, 3 Cush. 567 ; until he should give a bond in a bastardy Henry v. Chester, 15 Vt. 460.] suit, in a manner not authorized by the ()•) Skeato v. Beale, 11 Ad. & Ell. 983, statutes upon that subject, the bond when 990 ; per Parke B. Atlee v. Backhouse, 8 given was held to be void, as given under M. & W. 633, 642. See observations on duress, in respect both to the principal and this doctrine, 2 Smith L. C. 240 a; and the surety. Eisher v. Shattuck, 17 Pick, per Cur. Wakefield u. Newbon, 6 Q. B. 252.] 276, 280; Sumner v. Ferryman, 11 Mood. (t) See Bac. Abr. Duress, (B.). 201 ; Astley v. Reynolds, Stra. 917 ; Bull. («) See Smith v. Monteith, 13 M. & W. N. P. 173 ; sed vide 1 Roll. Abr. 687, pi. 427. 6 ; [Robinson v. Gould, 11 Cush. 55.] (x) See Cumming v. Ince, 11 Q.B. 112, (s) Bac. Abr. Duress, (A.) ; [Robinson 121. v. Gould, 11 Cush. 55; Huscombc v. [y) 1 Roll. Abr. 687. [See McClintick Standing, Cro. Jac. 187 ; Baylic v. Clare, v. Cummins, 3 McLean, 158.] 2 Brownl. 276 ; Jones v. Turner, 5 Litt. CONTRACTS WITH PERSONS UNDER DURESS. 273 6t£ sur son £poux, ou sur son Spouse, sur ses descendants ou ses as- cendants." (2) And where a bond was given by a third person, on the discharge of one who had been unlawfully impressed, condi- tioned for the man's being returned into custody, or in default thereof for the payment of 501., the bond was held void. For the impressing of the man was unlawful ; and besides, the officer had no power to commute the services of one who had been impressed, or to discharge him in consideration of money to be paid, (a) 3. And a court of equity will set aside an agreement Relief in where, although there was no duress, one of the parties contracrob- 6 has taken advantage of the situation of the other, and has J™^ ^ used undue influence to force an agreement from him. (6) fiance. 4. Clearly, a contract made under duress would be contract available in favor of the party suffering the duress, and j^cedby'the against the party inflicting the same. other partj*. By the French law, " un contrat ne peut plus Stre attaque pour cause de violence, si, depuis que la violence a cesse"e, ce contrat a 6t& approuve\ soit expresse'ment, soit tacite- tract may be „ , , , , j affirmed. ment: (c) and so, by our law, a man who has entered, into a contract under duress, may either affirm or avoid such con- tract after the duress has ceased, (d) Duress must now be specially pleaded in all cases of ac- Pleading it. tions on contracts, (e) (2) Code Civil, book iii. tit. 3, art. the person who has entered into a contract 1113. under duress. He may allow the contract (a) Pole 0. Harrobin, 9 East, 417, note, to stand if he chooses to do so. No third (b) See Williams v. Bayley, L. Rep. 1 party can take advantage of the duress to App. Ca. 200. avoid the contract. Lewis v. Bannister, (c) Code Civil, book iii. tit. 8, art. 16 Gray, 500. But see, as to a surety in 1115. the contract, Fisher v. Shattuck, 17 Pick. (d) 2 Inst. 483 j Whelpdale's case, 5 252.] Co. 119, Res. 2; 1 Steph. Com. 442. (e) Reg. Gen. H. T. 16 Vict. E. I." [This is a personal privilege and right of vol. 1. 18 274 CONTRACTS WITH AGENTS. SECTION II. Contracts with particular Persons competent to contract. 1. Agents. 1. Of the different kinds of agents. 2. Of their appointment, and the rev- ocation of their power. 3. The extent of their authority, and the liability of the principal. 4. Of the principal's right of action upon the contract of the agent. 5. When the agent is personally liable on his contract. 6. When he may sue thereon. 1. Different Kinds of Agents. Mercantile agents are divided into two great classes, namely, Factors and factors and brokers ; and the former class is subdivided brokers. j n ^ ^onie factors and foreign, according as thev are employed by merchants or other persons residing in this country, or by parties resident abroad. (/) A factor is intrusted with the possession and apparent ownership of the goods to be sold by him for his principal. And in this respect he differs from a broker, — the latter not having the custody of the goods of his principal, but be- ing merely empowered to effect contracts of sale or purchase on his behalf. (#) An agent for the sale of goods sometimes acts under a del credere Del credere commission ; that is, for a higher reward than is usually agents. given, he becomes responsible to his principal for the solvency of the vendee ; or, in other words, he guaranties, in every case of sale, the due payment of the price of the goods sold, (h) (/) Russell on Factors, 1, 2. property of his principal or the avails of it, (g) Baring & Corrie, 2 B. & Aid. 137 ; than an ordinary agent. He has his lien 2 Park on Mar. Insur. 801 ; Rus. on Fac. for the additional charges growing out of 4 ; Proctor v. Swain, 2 M. & P. 284. [See his extraordinary responsibility. But it 1 Kent, 622, and note ; Paley's Agency, differs only in degree from that of other by Dunlap, 13, note. In making a con- agents. Thompson v. Perkins, 3 Mason, tract requiring the exercise of judgment or 232, 242 ; Morris v. Cleasby, 4 M. & S. discretion, a person cannot act as the agent 566. The selling under a del credere com- of both parties ; and where he undertakes mission does not, in law, require the factor to do so, a court of equity will avoid the to anticipate the credit ; and the principal contract upon the application of either of is entitled to have the amount passed to the parties. The New York Central Ins. his credit only when the sale is matured. Co. v. The National Protective Ins. Co. 4 Per Hubbard J. in TJpham v. Lafavour, 11 Kernan, 85.] Met. 185. See the remarks of Cowen J. (A) Morris v. Cleasby, 4 M. & S. 574 ; in Wolff v. Koppel, 5 Hill (N. Y.),458 ; of Hornby v. Lacy, 6 lb. 166. [The del ere- Mr. Chancellor Kent, in 2 Kent, 624, 625, dere agent has no different power over the and notes ; and of Mr. Justice Story, in CONTRACTS WITH AGENTS. 275 2. Appointment of an Agent, and Revocation of his Power. 1. An agent, whether he be a mercantile agent or a mere do- mestic servant, may, in general, be appointed by mere Howan words; (A 1 ) and writing is not necessary to empower agent may him to act, even for the purposes described in the 4th section of the statute of frauds, (i) viz. to charge executors per- sonally ; to charge a person to answer for the debt of another ; or upon an agreement in consideration of marriage ; or upon a con- tract or sale of lands, or an interest therein ; or upon a contract not to be performed within a year : it being held, that although these contracts are to be in writing and signed, yet an agent may sign them without having a written authority. (&) Nor is a written ap- pointment necessary, to authorize an agent to sign an agreement for the purchase of goods, under the 17th section of the act. (/) Nor — although it would appear to be now settled, that the liability of a del credere agent is merely collateral to . "i & ii- -°^ credere. that of the vendee (m~) — is it necessary that his en- gagement should be in writing, (n) Thompson v. Perkins, 3 Mason, 236. The may prove the nature and extent of the guaranty of a del credere commission does agency by the agent, unless he is other- not extend to the remittance of funds in wise disqualified. Crooker v. Appleton, the hands of the factor. If the del credere 25 Maine, 131.] factor makes a remittance to his principal (t) 29 Car. 2, c. 3. by bill of exchange, before the expiration (k) Coles u. Trecothick, 9 Ves. 234, of the term of credit on which the goods 250. were sold, it will be considered as a remit- (I) See ante, 98 ; [Trundy v. Earrar, 32 tance of his own funds, in discharge of a Maine, 225 ; Webb v. Browning, 14 Mis- personal debt, and therefore at his own sou. 354 ; Shaw v. Nudd, 8 Pick. 9 ; Story risk. Henback v. Rother, 2 Duer (N. Y.), 227. If he takes depreciated paper in payment, he must account for the full value. Dunnell v. Mason, 1 Story, 543.] (A 1 ) [See Stackpole v. Arnold, 11 Mass. 27 ; Long v. Colburn, 11 Mass. 97 ; North- ampton Bank v. Pepoon, 11 Mass. 288; Ewing v. Tees, 1 Binney, 450; Shaw v. Nudd, 8 Pick. 9; Turnbull v. Trout, 1 Hall, 336 ; Story Agency, § 48. Where the alleged authority of an agent is oral, Agency, 51, 52; Dunlap's Paley's Agency, 159, 160, and notes; Mortimer v. Corn- well, 1 Hoff. Ch. R. 351 ;, Botts v. Cozine, lb. 80 ; Lawrence v, Taylor, 5 Hill r 107 ; Sewall v. Fitch, 9 Cowen, 215; Graham v. Musson, 5 Bing. (N. C.) 603 ; McComb v. Wright, 4 John. Ch. 659; Ewing v. Tees, 1 Binney, 450.] (m) Morris v. Cleashy, 4 M. & S. 566, 574. [Whether the undertaking of a del credere agent is an original or a collateral and for a specific purpose, the principal engagement is a question on which there (h) Coutourier v. Hastie, 8 Exch. 40; nio, 368; Bradley v. Richardson, 23 Vt. [Swan v. Nusmith, 7 Pick. 220 ; Wolff v. 721 ; Sherwood u. Stone, 14 N. Y. 265 ; Koppel, 5 Hill (N. Y.), 458; S. C. 2 De- 2 Kent, 624, 625 ; Story Agency, § 215.] 276 CONTRACTS WITH AGENTS. But a deed cannot be executed by an agent, so as to bind his w _ principal, unless the authority to execute it be conferred deed or writ- by deed, (o) So, for the purpose of creating a freehold or leasehold interest, or any uncertain interest (other than leases under three years), in tenements ; or of surrendering the same (except copyhold interests), the authority of the agent must be in writing. (j>) And so, where the authority of the agent is conferred by a corporation, it must, in general, be by writing under their com- mon seal ; (q) although there may be cases in which, for the benefit of trading corporations, this rule would be in some measure relaxed, (r) is no inconsiderable conflict among the decisions. But the doctrine stated in the text seems to be supported by the weight of authority. See Thompson v. Perkins, 3 Mason, 232 ; Wolff v. Koppel, 5 Hill (N. Y.), 458 ; Titcomb v. Seaver, 4 Greenl. 542 ; Peele v. Northcote, 7 Taunt. 478; Bradley v. Richardson, 23 Vt. 720; Leverick v. Meigs, 1 Cowen, 645 ; Swan v. Nesmith, 7 Pick. 220 ; Mitchell J. in Sherwood v. Stone, 14 N. Y. 267 ; Hos- mer C. J. in Redfield a. Davis, 6 Conn. 448 ; 2 Kent, 624, 625 ; Story Agency, §§ 33, 215; Holbrook u. Wight, 24 Wend. 169.] (o) Co. Litt. 48 b ; Anon. 12 Mod. 564 ; Harrison u. Jackson, 7 T. R. 209. See Appleton v. Binks, 5 East, 148 ; [Gordon a. Bulkley, 14 Serg. & R. 331 ; Millikin v. Coombs, 1 Greenl. 343 ; Banorgee v. Hovey, 5 Mass. 11 ; Hatch v. Smith, 5 Mass. 52 ; Cooper v. Rankin, 5 Binncy, 613; Plummett v. Russell, 2 Bibb, 174; Shamburger v. Kennedy, 1 Bad. & Dev. 1 ; Blood v. Goodrich, 9 Wend. 68 ; Yar- borough v. Beard, Taylor, 25 ; or the deed is executed at the request of the principal in his presence, in which case it would be a valid execution. Thus, a deed signed in the presence and at the request of P., and in the presence of an attesting witness, in these terms, " P. by M.," the whole deed, including the signature, being written by M., is properly executed as the deed of P. Gardner a. Gardner, 5 Cush. 483. To hold that this might not be a good execu- tion, Mr. Chief Justice Shaw remarked in this case, " would be to decide, that a per- son having a clear mind and full capacity, but through physical inability incapable of making a mark, could never make a con- veyance or execute a deed ; for the same incapacity to sign and seal the principal deed would prevent him from executing « letter of attorney under seal." See Wood o. Goodridge, 6 Cush. 120, 121 ; Kime v. Brooks, 9 Ired. 218.] (p) 29 Car. 2, c. 3, ss. 1, 2, 3. The authority to contract for a lease or interest in land need not be in writing, though the authority to sign the lease or instrument by which the interest jxisses must be so. 5 Vin. Abr. 524 ; Coles v. Trecothick, 9 Ves. 250; Mortlock v. Buller, 10 lb. 311 ; [Lawrence v. Taylor, 5 Hill, 107 ; Yerby v. Grisley, 9 Leigh, 387 ; 1 Sugden V. & P. (8th Am. ed.) 145, note (a).] (7) Rex v. Biggs, 3 P. Wms. 425. [See Story Agency, §§ 52, 53, and notes ; Angell & Ames Corp. (9th ed.) § 281.] (r) See Russell on Factors, 11-13. In the United States, the old rule that corporations can act and contract only under their common seal, is very gen- erally repudiated. One may become the agent of a corporation in the same man- ner as of an individual, without any deed or writing. Perkins u. Washington Ins. Co. 4 Cowen, 645 ; Trundy v. Farrar, 32 Maine, 225, 228; Sherman t>. Fitch, 98 Mass. 59, 64 ; Lester t>. Webb, 1 Allen, 34. So a corporation may adopt or ratify the doings of one assuming to act on its behalf, by its acts, without any deed or instrument in writing. Church v. Sterling, 16 Conn. 389 ; Planters' Bank v. Sharp, 4 CONTRACTS WITH AGENTS. 277 There are cases, moreover, in which an authority may be im- plied, although no authority was ever given in fact. rni -c ,. n , " , . Cases of 1m- Ihus, it the owner ot a horse send it to a common re- plied author- pository for the sale of horses ; or if the proprietor of ' y ' goods send them to an auction room, or to a broker, whose ordinary business it is to sell goods of that description ; the owner will be bound by a sale to a bond fide purchaser, although made without his express consent ; because an authority to sell shall be presumed against him. (s) And so, where a coachman went in his master's livery, and hired horses in his name, which the master used ; it was held that the latter was bound to pay for the hire of the horses, although he had agreed with the coachman to pay him a large salary to provide horses ; the owner of the horses not having had any notice, that the coachman hired them on his own account, and not for his master, (£) So, an authority on the part of the agent will be implied, even in cases which are not within the scope of his ordinary business ; provided it be shown that he has on former occasions exercised the same authority ; and that his principal knew, or had the means of knowing, that fact, (u) But it seems that the mortgagor or assignor of a ship, who con- tracts on his own behalf with a third person to let it, or the like, cannot be regarded by the mortgagee or assignee as his agent, so as to enable the latter to sue for the freight in his own name ; for the mortgagee or assignee is no party to the contract that is made after the transfer : and it is not material that he may be entitled to the ship's earnings, (x) Sm. & M. 75 ; Montgomery E. B. Co. o. the loss must sustain it. Per Ashhurst J. Hurst, 9 Ala. 513 ; Blair v. The Pathkiller, Lickbarrow v. Mason, 2 T. E. 63, 70. 2 Yerger, 407 ; Shaw C. J. in Melledge (u) Davidson v. Stanley, 3 Scott N. E. .J.Boston Iron Co. 5 Cush. 175; Story 49; Potty. Beavan, 1 C.&K. 335; Davison Agency, §§ 52, 53 ; Angell & Ames Corp. v. Eobertson, 3 Dow, 229. [See Bragg v. (9th ed.) § 282 ; 2 Kent, 289.] Boston & Worcester R. R. Corp. 9 Allen, (s) See per Lord Ellenborough C. J. 54. It is not necessary, in order to consti- Pickering v. Bust, 15 East, 38,45; per tute a general agent, that he should before Abbott C. J. Dyer v. Pearson, 3 B. & C. have done an act in specie the same with 38, 42 ; per Bailey J. Boyson v. Coles, 6 that in question. If he have usually done M. & S. 14, 23, 24 ; [Saltus v. Everett, 20 things of the same general character and Wend. 267 ; Lobdell v. Baker, 1 Met. effect with the assent of his principal, that 202.] is enough. Bank of Lake Erie v. Norton, (t) Eimell v. Sampayo, 1 C. & P. 254. 1 Hill (N. Y.), 502.] Wherever one of two innocent persons (x) Chinnery v. Blackman, 3 Dougl. must suffer by the acts of a third, he who 391 ; 1 H. Bl. 317, note ; Morrison v. Par- has enabled such third person to occasion sons, 2 Taunt. 407 ; Case v. Davidson, 5 278 CONTRACTS WITH AGENTS. A contract made by an agent, as such, is, in law, the contract of the principal, (a; 1 ) Qui facit per alium, facit per ge. Agent need . . . . , . . not be mi 1 he agent is considered merely as the medium by JUT ' which the contract is effected ; and his assent is merely the assent of his principal. (z 2 ) He need not, therefore, be a per- son sui juris : and hence, infants, married women, persons at- tainted or outlawed, or aliens, are competent to act as agents. («/) 2. An agent's authority may be determined (j/ 1 ) either — How his au- 1st- By the express revocation thereof by the prin- ^"eter™ ay c ^P a ' » (y 2 ) or by renunciation of the agency on the part mined. of the agent himself, (z) 2d. By the death or bankruptcy (z 1 ) of the principal or agent, (a) M. & "S. 79 ; S. C. 2 B. & B. 379 ; Dean u. M'Ghie, 4 Bing. 45. (x 1 ) [A sale by a factor constitutes a contract between the principal and pur- chaser. Golden r. Levy, 1 Car. Law, 528 ; Edmond j-. Caldwell, 1 5 Maine, 340 ; Tit- comb r. Seaver, 4 Greenl. 542.] {x 1 ) [See Lincoln v. Batelle, 6 Wend. 475.] (y) Co. Litt. 52 a. By the French law married women and emancipated minors may be agents. Code Civil, book iii. tit. 13, art. 1990. [But a person incapacitated to purchase in his own name, by reason of his standing in a confidential relation to the seller, cannot purchase as the agent of another. Hawley V. Cramer, 4 Cowen, 717. And the same person cannot act as the agent of both parties in the making of a contract when he is invested with a dis- cretion by each, and when each is entitled to the benefit of his skill and judgment. TJtica Ins. Co. v. Toledo Ins. Co. 17 Bar. 132.] (y 1 ) [A sale by the principal is a revoca- tion of the power of the agent to sell. Allen v. Ogdcn, 1 Wash. C. C. 174.] (;/-) [Palcy Agency, by Dunlap, 184; Story Agency, § 463 ; Huntu. Rousmanier, 8 Wheat. 474. Although the agent has been appointed under seal, it has been held that his authority may be revoked by parol. Brookshire v. Brookshire, 8 Ired. 74. See, as to revoking submission to arbitration under seal, Wallis a. Carpen- ter, 13 Allen, 19 ; Brown a. Leavitt, 26 Maine, 251.] (z) See Russell on Factors, 311, 314. (z 1 ) [An agency to sell merchandise for another is terminated by the insolvency of the agent. Audendried v. Betteley, 8 Allen, 302, 308.] (a) Russell on Factors, 315-317 ; Cam- panari v. Woodburn, 15 C. B. 400; Wat- son v. King, 4 Camp. 274 ; Lepard v. Ver- non, 2 V. & B. 51 ; Odes v. Woodward, 2 Ld. Rayrn. 849 ; Blades v. Free, 9 B. & C. 167; Bac. Abr. Authority, (E.) ; per Best C. J. Cholmeley v. Paxton, 3 Bing. 211; [Gait i. Galloway, 4 Peters, 332; Gale v. Tappan, 12 N. H. 145; Wallace v. Saunders, 7 Ohio, 173; Anderson v. Browne, 9 Ohio, 151 ; Hunt a. Rous- manier, 8 Wheat. 174; S. C. 2 Mason, 244; Story Agency, § 488; Huston v. Cantril, 11 Leigh, 137. In Cassiday r. M'Kenzie, 4 Watts & S. 282, payment to an agent in ignorance of the death of the principal was held good ; approved in Carriger v. Whittington, 26 Missou. 313. See Smout v. Ilberry, 10 M. & W. 1 ; Beard r. Kirk, 11 N. H. 397; Ogden u. Gillingham, Baldwin, 38, 46 ; Gage v. Allison, 1 Brcv. 495 ; Merrick's Estate, 8 Watts & S. 402 ; City Council v. Duncan, 3 Brev. 386 ; McDonald v. Black, 20 Ohio, 185; Story Agency, § 4882, notes ; Mar- lett v. Jackman, 3 Allen, 294, 295.] CONTRACTS WITH AGENTS. 279 3d. By efflux of time, where a specific period is fixed either by express agreement or by the usage of trade, for the execution of the act to be done by the agent : (6) or, 4th. By the execution of his commission, whereby the agent be- comes functus officio, (c) But the mere happening of the above events will not, in each case, operate per se as a complete revocation of the Notice of agent's authority. Thus if the principal countermand ^n see- the authority of the agent, such countermand will not essaiy take effect as to third persons, until it is made known to them. (eT) So, where a servant had power to draw bills in his master's name, and was afterwards turned out of his service, it was ruled, " that if he draw a bill in so little a time that the world cannot take notice of his being out of service ; or if he were a long time out of his service, but that kept so secret that the world cannot take notice of it ; the bill in those cases shall bind the master." (e) So, where a servant who had been used to raise, receive, and pay money for his master, borrowed 200 guineas in his master's name, after he had quitted the service ; the lender, who did not know of his dis- charge, recovered against the master, by the direction of Keeling C. J. ; and, on a motion for a new trial, this direction was approved by the whole court. (/) And it is said that a sale or purchase by (b) Story on Agency, § 480; Dickinson v. Lilwall, 4 Camp. 279. (c) Blackburne v. Scholes, 2 Camp. 341, 343 ; Seton ,>. Slade, 7 Ves. jnn. 276 ; Macheath v. Cooke, 1 M. & P. 513; [Smith v. Kice, 1 Bailey, 648. There are other ways in which the authority of an 5 Dana, 513 ; Beard v. Kirk, 11 N. H. 398. See Bowerbank v. Morris, Wallace, 136 ; Spencer D.Wilson, 4 Munf. 130; Harper y. Little, 2 Greenl. 14. In case of the lawful revocation of the power by the act of the principal, it is requisite that notice be given to the attorney ; and all acts, bond agent may be determined, as by mar- fide done by him under the power, prior to riage of the principal, being a, feme sole, by marriage of a feme sole agent, by the lu- nacy or insanity of the agent, by renun- ciation by the agent, by the bankruptcy of the principal, and by a sale of the subject- matter of the agency by the principal. Dunlap's Paley's Agency, 189, note ; 2 Kent, 644 ; Wallis v. Manhattan Co. 2 Hall, 495 ; Allen v. Ogden, 1 Wash. C. C. 174; Story on Agency, 1&5 etseq. ; Davis v . Lane, 10 N. H. 156.] (d) Trueman v. Loder, 11 A. & E. 589, 592; Salte v. Field, 5 T. E. 211, 215; Hazard v. Treadwell, 1 Str. 506 ; [Morgan o. Stell, 5 Binney, 305 ; Hancock v. Byrne, the notice of the revocation, are binding upon the principal. 2 Kent, 644, and cases cited above in this note; Trueman v. Loder, 11 Ad. & El. 589; Morgan v. Stell, 5 Binney, 316 ; Williams v. Birbeck, 1 Hofif. Ch. R. 359; Lightbody a. North Am. Ins. Co. 23 Wend. 18, 25; Wheeler v. Knoggs, 8 Ohio, 169 ; Hancock v. Byrne, 5 Dana, 513, 515 ; Beard v. Kirk, 11 N. H. 398, 403 ; Bowerbank v. Morris, Wallace C. C. 119.] (e) v. Harrison, 12 Mod. 346. (/) Monk u. Clayton, Moll. 270 ; cited in Nickson v. Brohan, 10 Mod. 110. 280 CONTRACTS WITH AGENTS. When au- thority not revocable. an agent, even after the death of his principal, if made without notice of that fact, will bind the representatives of the latter. (#) Nor is the authority given to an agent revocable in all cases at the mere will of the party who conferred it. Thus, it is not in general revocable after a part execution thereof by the agent, except on payment by the principal, of a compensation for the labor and expense which may have been in- curred by the agent, in the course of the employment. (^) And so, if there be an interest coupled with the authority ; that is, if an agreement be entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable, (i) (g) Story on Agency, § 496 ; [§ 495, and note. See Cassiday v. M'Kenzie, 4 Watts & S. 282 ; Carriger c. Whittington, 26 Missou. 313 ; Ish v. Crane, 8 Ohio St. 520. But see Hunt v. Rousmanier, 8 Wheat. 174; Gait v. Galloway, 4 Peters, 333, 3.34 ; Jenkins v . Atkins, 1 Humph. 294 ; Gale v. Tappan, 12 N. H. 146; Mc- Naughton <•. Moore, 1 Haywood, 189; Gleason v. Dodd, 4 Met. 333 ; Huston v. Cantril, 11 Leigh, 137 ; Harper v. Little, 2 Greenl. 14, 18; 2 Kent, 646.] (h) Simpson v. Lamb, 17 C. B. 603, 616. [As between the principal and agent, Mr. Justice Ware, in United States v. Jarvis, Davies Rep. 287, held that the former may at any time revoke and with- draw the power of his agent at his pleasure, and without notice. But if the agent has entered on the business of the agency, and has fairly, in the ordinary course of business, and in good faith, entered into any engagements, or come under any liabilities, in the prosecution of the proper business of the principal, be- fore notice of the revocation of the agency, the principal will be bound to indemnify him, unless the agent had given just cause for such revocation. In the same manner the agent may, at any time, renounce the agency, but then he is bound to give the principal reasonable notice of his inten- tion beforehand, to enable him to procure another agent ; and if he does not, he will be bound to indemnify the principal for any loss he may sustain. See Story Agency, §§ 466, 467.] (i) Per Cur. Smart v. Sanders, 5 C. B. 895, 917 ; Bristow v. Taylor, 2 Stark. 50, 51 ; Walsh v. Whitcomb, 2 Esp. 565 ; Bromley v. Holland, 7 Ves. jun. 28 ; [Pa- bens i. Mercantile Bank, 23 Pick. 330; Brown v. McGran, 14 Peters, 479, 495 ; Houghtaling v. Marvin, 7 Barb. 412. See Hunt v. Rousmanier, 8 Wheat. 174 ; Mans- field p. Mansfield, 6 Conn. 559 ; Wheeler v. Wheeler, 9 Cowen, 34 ; Story Agency, 495 et seq. Whether a power coupled with an interest is revoked by the death of the person giving the authority, see the reasoning of Marshall C. J. in Hunt r. Rousmanier, 8 Wheat. 174, where he says : " We hold it to be clear, that the interest, which can protect a power after the death of a person who creates it, must be an interest in the thing itself." " The interest or title in the thing being vested in the person who gives the power, remains in him, unless it be conveyed with the power, and can pass out of him only by a regular act, in his own name. The act of the substitute, therefore, which, in such a case, is the act of the principal, to be equally effectual must be in his name, must be such an act as the principal himself would be capable of performing, and which would be valid if performed by him. Such a power necessarily ceases with the life of the per- son making it. But if the interest or estate passes with the power, and vests in CONTRACTS WITH AGENTS. 281 It lias, however, been decided, that where a factor to whom goods have been consigned, generally, for sale, has subsequently- made advances to his principal on the credit thereof, which ad- vances the latter has, on request, neglected to repay ; the factor's authority to sell does not become, by reason of such unpaid ad- vances, irrevocable as an authority coupled with an interest, so as to entitle him to sell the goods contrary to the orders of the prin- cipal. (&) 3. Extent of Authority, and Liability of Principal. (k l ) 1. A principal or master is liable, civiliter, for the acts (V) and the person by whom the power is to be executed, such person acts in his own name.'' See S. C. 2 Mason, 244 ; lb. 294; Knapp v. Alvord, 10 Paige, 205; Smout v. Ilberry, 10 M. & W. 1, 11 ; Russell, Fact. & Brok. 317 ; Davis v. Lane, 10 N. H. 156 ; Bergen u. Bennett, 1 Caines Cas. 1 ; Smyth v. Craig, 3 Watts & S. 14 ; Cas- siday v. M'Kenzie, 4 lb. 282.] (h) Smart v. Sanders, 5 C. B. 895. [But it has been held in Massachusetts, that a commission merchant, who has re- ceived goods to sell at a certain limited price, and has made advances upon them, has a right to reimburse himself by selling them at the fair market price, though be- low the limit, if the consignor has refused, upon application and after a reasonable time, to repay the advances. Parker u. Brancher, 22 Pick. 40. So in New Hamp- shire. Frothingham v. Everton, 12 N. H. 239 ; Porter v. Patterson, 15 Penn. St. 229 ; Marfield v. Goodhue, 3 Comst. 62 ; Blot v. Boiceau, 3 Comst. 87. See Brown v. McGran, 14 Peters, 479. A factor who makes advances on goods consigned to him, may maintain an action, before the goods are sold, to recover the money ad- vanced, unless there is an agreement to the contrary. Uphamj;. Lafavoui-, 11 Met. 174.] (k l ) [See Story Agency, 58. If one vol- untarily undertakes to do a particular piece of business for another, though he acts gratuitously, he is bound to obey the orders of his principal, and is liable in damages for the consequences of a breach of instructions. Walker v. Smith, 1 Wash. C. C. 152. A promise of indemnity to an agent is implied from his employment as such. Gower v. Emery, 18 Maine, 79 ; Powell v. Newbury, 19 John. 284 ; Drum- mond v. Humphreys, 39 Maine, 347.] (I) When bound by the representation of the agent ; Moens v. Heyworth, 10 M. & W. 147 ; Cornfoot v. Fowke, 6 M. & W. 358 ; Fuller v. Wilson, 3 Q. B. 58, 68 ; [Fitzsimmons v. Joslin, 21 Vt. 129 ; Cod- dington v. Goddard, 16 Gray, 441, 442.] By his declaration or admission ; Peto v. Hague, 5 Esp. 133 ; Coates v. Bainbridge, 5 Bing. 58. By his fraud or tort ; Shirley v. Wilkinson, 1 Dougl. 306 ; Lewis v. Reed, 13 M. & W. 834 ; Freeman v. Rosher, 13 Q. B. 780 ; 18 L. J. Q. B. 340. The general rule is, that the master is answerable for every wrong committed by the servant or agent in the course of the service/and for the master's benefit, though no express command or privity of the mas- ter be proved. Per Willes J. (delivering the judgment of the court of exchequer chamber) Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, 265 ; [Williams v. Mitchell, 17 Mass. 98; Lobdell v. Baker, 1 Met. 193 ; Locke v. Stearns, 1 Met. 560 ; Hern v. Nichols, 1 Salk. 289 ; Fitzherbert o. Mather, 1 T. R. 12 ; Doe v. Martin, 4 T. R. 66 ; Irving v. Motley, 7 Bing. 543 ; Carpenter v, American Ins. Co. 1 Story, 57 ; Willes v. Glover, 4 Bos. & Pul. 14 ; Southwick v. Estes, 7 Cush. 385 ; Barber v. Britton, 26 Vt. 112 ; Bank of U. S. v. Davis, 2 Hill (N. Y.), 451, 462 ; Sand. 282 CONTRACTS WITH AGENTS. p » . , contracts of his agent or servant, within the scope of his liable without employment, (m) But, in order to render the principal express or or master responsible, his assent must in all cases appear, imp ie . either by express evidence thereof, or by proof of facts, ford v. Handy, 23 Wend. 260. The prin- cipal is liable in such a case, although the agent is acting contrary to his express instructions, unless the instructions are known to the party with whom he is deal- ing. Lobdell v. Baker, 1 Met. 193 ; John- son v. Barber, 5 Gilman, 425. The rule of law is otherwise, where the express in- structions are actually known, or where, as in the case of special and particular agents, it is the duty of the person dealing with the agent to ascertain the extent of his authority, if the act causing the loss is contrary to the instructions, or not within the authority. Lobdell v. Baker, 1 Met. 193; Sherwood v. Marwick, 5 Greenl. 295, 302. See Wilson v. Peverly, 2 N. H. 548 ; Brown v. Purviance, 2 H. & Gill, 316; United States v. Williams, 1 Ware, 175. A principal will not be allowed to derive any benefit from the fraudulent acts of his agent, in the transaction of his business, although the principal was ignorant of those acts ; if he obtains and holds the benefit and proceeds of the transaction tainted by the fraudulent acts, he must answer for the damages occasioned by the fraud. Foster v. Swasey, 2 Wood. & M. 21 7 ; Veaziew. Williams, 8 How. (TJ. S.) 134 ; Jeffrey v. Bigelow, 13 Vt. 518 ; Doggett v. Emerson, 3 Story, 700 ; Fitzsimmons u. Joslin, 21 Vt. 129; Attorney General v. Ansted, 12 M. & W. 520; Attwood v. Small, 6 CI. & Fin. 444; Olmstead o. Hotailing, 1 Hill (N. Y.), 317 ; Taylor a. Green, 8 C. & P. 316 ; Mason v. Crosby, 1 Wood. & M. 342 ; Concord Bank v. Gregg, 14 N. H. 331 ; Elwell i: Chamberlain, 31 N. Y. 611 ; Mundorf v. Wickersham, 63 Penn. St. 87 ; Bowers v. Johnson, 10 Sm. & M. 169. But if the authority of an agent, however general, is capable of being executed in a lawful manner, it is never to be extended by construction to acts pro- hibited by law so as to render his innocent principal liable in a criminal action or prosecution. Clark v. Metropolitan Bank, 3 Duer (N. Y.), 241.] But the master is is not liable for the wilful act of his servant, in committing a fraud or tort, out of the scope of his authority, or inconsis- tent with the course of his employment. Coleman u. Riches, 16 C. B. 104; Grant o. Norway, 10 C. B. 665 ; M'Manus v . Crickett, 1 East, 106. See Gregory v. Piper, 9 B. & C. 591. It is said that, in an action on contract, the representation of the agent is the representation of the princi- pal ; but in an action for deceit, the mis- representation or concealment must be proved against the principal. Per Lord Campbell, Wilde v. Gibson, 1 H. L. Cas. 605, 615 ; and see per Bramwell aBd Mar- tin BB. Udell v. Atherton, 7 H. & N. 172. See,' however, per Pollock C. B. and Wilde B., S. C. contra; and per Holt C. J. Hern v. Nichols, 1 Salk. 289 ; and Bar- wick v. English Joint Stock Bank, supra ; [Nicol's case, 3 De G. & J. 387, 437 ; New Brunswick &c. Railway Co. v. Conybeare, 9 H. L. Cas. 714, 726; Lord Kingsdown, in Bristow v. Whitmore, 9 H. L. Cas. 418; Kerr F. & M. (1st Am. ed.) Ill et seq. ; Bartlett v. Salmon, 6 De G., M. & G. 39 ; 1 Sugden V. & P. (8th Am. ed.) 250, and note (q) ; Kibble v. Hamilton Ins. Co. 11 Gray, 163.] (m) Bac. Abr. Master and Servant, (K.). [See Munn v. The Commission Co. 15 John. 44; 2 Sugden V. & P. (8th Am. ed.) 756, and notes ; Perkins v. The Wash- ington Ins. Co. 4 Cowen, 659 ; Andrews v. Kneeland, 6 Cowen, 354 ; Odiorne u Maxcy, 13 Mass. 178 ; Salem Bank Gloucester Bank, 17 Mass. 1 ; Wyman u Hallowell & Augusta Bank, 14 Mass. 58 Foster v. Essex Bank, 17 Mass. 479; Commissioners of Accounts u. Rose, 1 Desaus. 461, 470 ; Longworth v. Conwell, 2 Black. 469 ; Fisher v. Campbell, 9 Por- ter, 210. A principal is affected by notice to his agent in relation to any act within CONTRACTS WITH AGENTS. 283 from which the law will raise an inference that such assent was given, (m J ) The rules of law which regulate the extent of an agent's authority to bind his principal are, in general, the same, whether Eu]es , such agent be appointed for commercial or domestic pur- which poses. The nature of the employment in each of the authority is two cases occasions, indeed, some distinctions; but the leading principles are the same in both, (w) the scope of his agency, and connected with the subject-matter of it. Robertson v. Lawman, 2 Greene (Iowa), 420 ; Var- num v. Milford, 4 McLean, 93 ; Sutton v. Dillayo, 3 Barb. 529 ; Fetter u. Field, 1 La. An. 80. The notice must have reached the agent before the agency or business is terminated. Whether the prin- cipal would be affected by the knowledge of the agent before the agency commenced, and if so, what length of time before it commenced, or before the transaction to which it relates, seems not to be agreed. See Story on Agency, § 140; Astor v. "Wells, 4 Wheat. 466 ; Griffith v. Griffith, 9 Paige, 315; S. C. 1 Hoff. Ch. 153; U. S. Bank v. Davis, 2 Hill (N. Y.), 452; Le Neve v. Le *Neve, Ambler, 436, 439 ; Dunlap's Paley's Agency, 262 et seq. and notes; Champlin v. Laytin, 6 Paige, 189; Dryden v. Frost, 3 Myl. & Cr. 670 ; Toul- min v. Steere, 3 Meriv. 210 ; Hargreaves v. Rothwell, 1 Keen, 159 ; Merrill v. Sloan, 1 Murph. 421. It has been held, that notice or knowledge of facts to affect the principal must have been acquired by the agent or attorney in the same transaction. Le Neve v. Le Neve, Ambler, 439, in note ; Lowther v. Carlton, 2 Atk. 242 ; Warwick v. Warwick, 3 Atk. 294 ; Hiern v. Mill, 13 Ves. 120 ; Hood v. Fahnestock, 8 Watts, 489 ; Bracken v. Miller, 4 Watts & S. 102, 111 ; 1 Story Eq. Jur. § 408 ; New York Central Ins. Co. a. National Protection Ins. Co. 20 Barb. 408. Still this rule seems not to be entirely settled, and some decisions of great authority hold it to be dependent upon the circumstances of each case. See Mountford v. Scott, Turn. & P. 279 ; Hargreaves v. Rothwell, 1 Keen, 154, 157,160; Nixon u. Hamilton, 2 Dru. & W. 364, 390, 392 ; Griffith o. Griffith, 1 Hoff. Ch. 158 ;' Lenchan v. McCole, 2 Ir. Eq. 342. At all events, the principal seems to be chargeable with notice of all the facts which were, at the time of an act done by his agent, within the knowledge and memory of the agent. Hovey v. Blan- chard, 13 N. H. 145 ; Hargreaves v. Roth- well, 1 Keen, 154, 159; Wiley v. Knight, 27 Ala. 336 ; Bank of TJ. S. *. Davis, 2 Hill (N. Y.), 451. The same is true where the principal adopts and ratines an act done by his agent for him, after the transaction. Hovey v. Blanchard, supra. How far the principal, who has knowledge of facts affecting a, transaction, will be bound by that knowledge, although the transaction was effected through an agent, who had no such knowledge, see Willis „ . . Bank of England, 4 Ad. & El. 39 ; Ma- hew v. Eames, 3 B. £ C. 601. A principal is chargeable with the knowledge of what is known to a sub-agent, who has been duly appointed to act in his business. Boyd v. Vanderkemp, 1 Barb. 273.] (m 1 ) [See Cox v. Hoffman, 4 Dev. & Bat. 180; Kerr v. Piper, 4 Watts, 222; Topham v. Roche, 2 Hill (S. Car.), 307 ; Hunter v. Hudson River Iron & Machine Co. 20 Barb. 498 ; Ezell v. Franklin, 2 Sneed (Tenn.),236.] (n) For the rules by which the authority of an agent will be construed ; Russell on Factors, 49-55. It is for the court to put a construction on a written authority ; Collisu. Emmett, 1 H. Bl. 313; Howard a. Baillie, 2 lb. 618. [But when the au- thority is to be determined upon evidence of the; acts of the parties, the question of the extent of it is to be submitted to the jury. Munroe v. Holmes, 5 Allen, 201, 284 CONTRACTS WITH AGENTS. It is necessary and expedient, that parties should be allowed to „ , . communicate with each other through the medium of General and _ . . . special third persons ; but business would be impeded, if it were 3.2*6IltS. requisite on all occasions that the public, before dealing with the agent, should consult the principal. And accordingly the liability of the latter mainly depends, not on the instructions which he may have given to the agent, but on the question, whether the agent was a general or special agent, (w 1 ) If a servant or agent be accredited, and invested by his master with authority to act for him in all his business of' a particular kind; or if the agent, being him- self engaged in a particular trade or business, be employed by the principal to do certain acts for him in that trade or business, he will in each case be held to be, with reference to his employment, a general agent ; (o) and — the public having no means of knowing what are, in any particular case within the general scope of the agent's powers, the wishes and directions of the principal — the latter will be liable, even although his orders be violated, (p) In such a case the principal, having for his own convenience induced the public to consider that his agent was possessed of general powers, is bound by the exercise, on the agent's part, of the authority which he has thus allowed him to assume. (c[) And it makes no difference 203.] Authority to receive rents i8 no (q) See Summers v. Solomon, 7 E. & authority to distrain. Ward v. Shew, 9 B. 879 ; Thompson i. Bell, 10 Exch. 10 ; Bing. 608. When general authority to [Duke of Beaufort v. Neeld, 12 CI. & Fin. indorse bills may be presumed. Prescott 273 ; Dows o. Greene, 16 Barb. 72 ; Ly- v. Flinn, 9 Bing. 19. ell v. Sanhourn, 2 Mich. 109. A general (n 1 ) [See Hatch v. Taylor, 10 N. H. 538. authority arises from a general employ- The authority of an agent being limited ment in a specific capacity, such as factor, to a particular business does not make it broker, attorney, &c. When it can be said special. Anderson v. Coonley, 21 Wend, of one that he is A.'s factor, or A.'s broker, 279.] or A.'s attorney, he has then a general (o) Russell on Factors, 75. authority in the sense of the text. But of (p) Duke of Beaufort v. Taylor (in course this does not imply that he has an Dom. Proc), 9 Jur. 819,915; Smethurst unlimited or unrestrained authority. A v. Taylor, 12 M. & W. 545 ; [Lobdell c. general authority of this kind empowers Baker, 1 Met. 193; Hatch u. Taylor, 10 the agent to bind his employer by all acts N. H. 550, 551 ; Williams v. Mitchell, 17 within the scope of his employment, and Mass. 98 ; Wilkins v. Commercial Bank of that power cannot be limited by any pri- Natchez, 6 How. (Miss.) 217, 221; St. vate order or direction not known to the John iy. Redmond, 9 Porter, 428, 432 ; party dealing with the agent. Dunlap's Stothard v. Aull, 7 Missou. 318 ; Walsh v. Paley's Agency, § 127, note 1 ; Whitehead Pierce, 12 Vt. 130, 138; Eagle Bank v. v. Tuckett, 15 East, 408; Russell Fact. & Smith, 5 Conn. 71, 74; Commercial Bank Brok. 75 et seq. ; Commercial Bank of a. Kortright, 22 Wend. 348; Planters' Lake Erie v. Norton, 1 Hill, 501; McEwen Bank v. Cameron, 3 Sm. & M. 609.] v. Montgomery Co. Mut. Ins. Co. 5 Hill, CONTRACTS WITH AGENTS. 285 in such a case, whether the agent acts as if he were the principal, or professes to act as agent. (V) But if, on the other hand, the agent is appointed only for a particular purpose, and is invested with limited powers, or in other words, is a special agent ; then it is the duty of persons dealing with such agent, to ascertain the ex- tent of his authority ; (r 1 ) and the principal or master will not be bound by any act of the agent, not warranted expressly by, or by fair and necessary implication from, the terms of the authority dele- gated to him. (s) [There is a distinction to be observed between 101 ; Odiorne u. Maxcy, 13 Mass. 181 ; Gibson v. Colt, 7 John. 394; Commercial Bank of Buffalo v. Kortright, 22 Wend. 361 ; Jacques v. Todd, 3 Wend. 83 ; Lob- dell v. Baker, 1 Met. 202 ; Fisher v. Camp- bell, 9 Porter, 201 ; Arthur v. Schooner Cassius, 2 Story, 94 ; Smethurst v. Tay- lor, 12 M. & W. 545 ; Davis v. Waterman, 10 Vt. 526; Gibbs v. Linsley, 13 Vt. 208; Cross v. Haskins, 13 Vt. 536 ; Lausdale v. Shackleford, Walk. (Miss.) 149; Long- worth v. Conwell, 2 Blackf. 469 ; Wilcox u. Routh, 9 Sm. & M. 476. But such general authority does not authorize the agent to go beyond the regular course of the business he is employed to transact, and the general nature of the acts to be done. Jones v. Warner, 11 Conn. 41 ; Pourie v. Frazer, 2 Bay, 269 ; Odiorne v. Maxcy, 13 Mass. 178 ; Washington Bank v. Lewis, 22 Pick. 24 ; Wilkins v. Com. Bank of Natchez, 6 How. (Miss.) 217; Jacques v. Todd, 3 Wend. 83. It is not a part of the duty of a cashier of a bank to give the customers of the bank information as to the transactions of the bank, which have been fully completed and past. Franklin Bank v. Steward, 37 Maine, 519. Thus, a surety on a note to the bank, having in his possession the property of the principal, with which he might have secured himself by attachment, sent his agent, after the pay-day, to inquire of the bank whether the note had been paid. To that inquiry the cashier in the banking room, declared that it had been paid. Whereupon the surety, relying upon that information, surrendered the property to the principal, who soon afterwards failed, becajme and continued to be insolvent. In a suit by the bank against the surety, it was held by a majority of the court, that the declaration, made by the cashier, was inadmissible as evidence against the bank. Franklin Bank u. Steward, 37 Maine, 519. Two judges refused to concur in the above decision, which certainly is not be- yond question.] (r) Smith v. M'Guire, 3 H. & N. 554. (r 1 ) [Lobdell v. Baker, 1 Met. 201, 202 ; Snow v. Perry, 9 Pick. 542 ; Fisher v. Campbell, 9 Porter, 210 ; Hatch v. Taylor, 10 N. H. 538, 547 ; Schimmelpennick v. Bayard, 1 Peters (U. S-), 264 ; Delafield v. Illinois, 26 Wend. 193 ; S. C. 2 Hill (N. Y.), 159; North River Bank v. Aymar, 3 Hill (N. Y.), 263, 266 ; Banorgee v. Hovey, 5 Mass. 11, 37 ; Dresser Manuf. Co. c. Waterston, 3 Met. 9, 18 ; Barings. Pierce, 5 Watts & S. 548 ; Fox v. Fiske, 6 How. (Miss.) 345 ; Johnson o. Wingate, 29 Maine, 404 ; Powell v. Henry, 27 Ala. 612.] (s) Per Buller J. Fenn v. Harrison, 3 T. R. 757, 762. See Pickering v. Busk, 15 East, 43 ; [Wood v. Goodridge, 6 Cush. 123; Bliss v. Clark, 16 Gray, 60; An- drews v. Kneeland, 6 Cowen, 354 ; Beals v. Allen, 18 John. 363 ; Leverick v. Meigs, 1 Cowen, 645; Batty v. Carswell, 2 John. 48 ; Terry v. Farrago, 10 John. 114 ; Nixon v. Hyserott, 5 John. 58 ; Gibson v. Holt, 7 John. 890 ; Crary v. Turner, 6 John. 51 ; Thompsons. Stewart, 3 Conn. 171 ; Par- sons v. Armor, 3 Peters (U. S.), 428 ; Ros- siter v. Rossiter, 8 Wend. 494 ; Bryden v. Taylor, 2 Harr. & J. 396 ; Odiorne v. Maxcy, 13 Mass. 178; Salem Bank e. Gloucester Bank, 17 Mass. 1 ; Wyman v. 286 CONTRACTS WITH AGENTS. the authority of a special agent, which the person dealing with him not only has a right, but is bound, to know, and private instruc- tions given him respecting the mode and manner of executing his agency, intended to be kept secret, and not communicated to those with whom he may deal, concerning which it would of course be useless to inquire. Such private instructions are not to be regarded as limitations upon his authority ; and notwithstanding he may dis- regard them, his act, if otherwise within the scope of his agency, will be valid and binding on his employer.] (s 1 ) Hallowell & Augusta Bank, 14 Mass. 58; Foster v. Essex Bank, 17 Mass. 479; White v. Westport Manuf. Co. 1 Pick. 215; Blane v. Proudfit, 3 Call, 207 ; Gor- don v . Buchanan, 5 Yerger, 71 ; Snow v. Perry, 9 Pick. 542 ; Kerns v. Piper, 4 Watts, 222; Long on Sales (Rand's ed.), 389; Skinner c. Dayton, 5 John. Ch. 365; Stainerc. Tysen,3 Hill, 279, 281 ; Allen v. Ogden, 1 Wash. C. C. 174; Williams r. Birbeck, 1 Hoff. Ch. R. 360, 368 ; Lobdell v. Baker, 1 Met. 201 ; Carter v. Taylor, 6 Sm.&M. (Miss.) 367; Fishery Campbell, 9 Porter, 216 ; Merritt v. Lambert, 1 Hoff. Ch. R. 166 ; Schimmelpennick v. Bayard, 1 Peters (U. S.), 264; United States v. Williams, 1 Ware, 181 ; Huntington v. Wilder, 6 Vt. 234 ; Bank of Hamburg v. Johnson, 3 Rich. 42 ; Scott v. McGrath, 7 Barb. 53. If an agent to whom goods are intrusted for a particular purpose, make sale of the goods in a manner or to a per- son not within the scope of his authority, the principal may disaffirm the sale, and recover the goods of the vendee. Peters v. Ballistier, 3 Pick. 495 ; Parsons v. Webb, 8 Greenl. 38 ; Robertson r. Ketchum, 11 Barb. 652. See Commercial Bank c. Kortright, 22 Wend. 348. If the power of the agent is created by a written instru- ment, and that known to the party with whom the contract is made, it cannot be enlarged by evidence of usage. Delafield v. State of Illinois, 26 Wend. 192. But sec Le Roy v. Beard, 8 How. (U. S.) 451. Still a special agent, unless specially re- stricted as to his mode of performing his agency, may employ the ordinary and proper means of effecting the object of his agency. Trueman v. Loder, 11 Ad. &E1. 589 ; Andrews v. Kneeland, 6 Cowen, 354 ; Anderson v. Coonley, 21 Wend. 279 ; Sandford o. Handy, 23 lb. 260 ; Peck v. Harriot, 6 Serg. & R. 146. And even if there is a special written power, a more extensive power in addition may be in- ferred from acts. New Eng. Ins. Co. v. De Wolf, 8 Pick. 56 ; Le Roy v. Beard, 8 How. (U. S.) 451.] A person who sends a message by telegraph is not responsible for a mistake made by the telegraph clerk. Henkel v. Pape, L. R. 6 Ex. 7. [See ante, 19, note (m).] (s 1 ) [This subject is clearly and amply discussed by Parker C. J. in Hatch v. Taylor, 10 N. H. 538. See Commercial Bank v. Kortright, 22 Wend. 348 ; Bryant v. Moore, 26 Maine, 84, 87 ; Johnson u. Jones, 4 Barb. 369. In Barber v. Britton, 26 Vt. 112, the defendant sent an agent to employ the plaintiff, being a physician, to visit a boy who was injured, and directed the agent to tell the plaintiff that he would pay for the first visit. The agent neg- lected this, and employed the plaintiff gen- erally. The plaintiff attended the boy on the defendant's credit till he recovered ; and it was held, that the defendant was liable to the plaintiff for his services. Although special powers are to be con- strued strictly, yet if the words to be con- strued touch only the particular mode in which an object, admitted to be within the power, is to be effected, and they are am- biguous, and with a reasonable attention to them would bear the interpretation on which both the agent and a third person have acted, the principal is bound, although CONTRACTS WITH AGENTS. 287 These rules have been illustrated as follows : If a person keep- ing a livery stable, and having a horse to sell, direct his illustrations servant not to warrant him, still the master will be liable o£the8e rules ' on the servant's warranty, because the latter was acting within the general scope of his authority ; and the public cannot be supposed to be cognizant of any private conversation between the master and servant, (t) But the servant of a private owner, intrusted to sell and deliver a horse on one particular occasion, is not by law au- thorized to bind his master by a warranty ; and the buyer, who takes a warranty from such an agent, takes it at the risk of being able to prove that he had the principal's authority, (u) So, if a servant has been allowed by his master to purchase goods upon credit, the latter is answerable even for goods bought by that upon a more refined and critical examina- tion the court might be of opinion that a different construction would be more cor- rect. Such an instrument is generally to be construed, as a plain man, acquainted with the object in view, and attending reasonably to the language used, has in fact construed it. Per Curtis J. in Very o. Very, 12 How. (U. S.) 358, 359 ; Le Roy v. Beard, 8 How. (U. S.) 451 ; Lo- raine v. Cartwright, 3 "Wash. C. C. 151 ; De Tastett v. Crousillat, 2 Wash. C. C. 132; Johnson v. Jones, 4 Barb. 369.] (() Per Ashurst J. Fenn v. Harrison, 3 T. R. 757, 760. See, also, Howard u. Sheward, L. Rep. 2 C. P. 148 ; East India Company v. Hensley, 1 Esp. Ill ; Way- land's case, 3 Salk. 234 ; [Ezell v. Frank- lin, 2 Sneed (Tenn.), 236.] (u) Per Cur. Brady u. Todd, 9 C. B. N. S. 592, 605. [A power to sell implies a power to warrant, in the cases, and to the extent, in which a warranty usually accompanies the sale. Skinner v. Gunn, 9 Porter, 305 ; Gaines v. M'Kinley, 1 Ala. 446; Bryant v. Moore, 26 Maine, 84, 87 ; Sandford v. Handy, 23 Wend. 260 ; Nel- son v. Cowing, 6 Hill, 337; Hunter v. Jameson, 6 Ired. 252 ; Woodford u. Mc- Clenahan, 4 Oilman, 85 ; Bradford o. Bush, 10 Ala. 386 ; Williamson v. Conna- day, 3 Ired. 349 ; Peters v. Farnsworth, 15 Vt. 155; Taggartw. Stanbery, 2 Mc- Lean, 543, 544 ; Lane v. Dudley, 2 Murph. 119 ; Ezell v. Franklin, 2 Sneed (Tenn.), 236. As, where the customary mode of selling certain kinds of merchandise is by sample, if an agent is employed to make the sale, he may select the sample and bind his principal to the warranty result- ing from a sale by sample. Andrews v. Kneeland, 6 Cowen, 354. And an agent to sell would unquestionably, in all cases, be authorized to warrant that the article sold would answer the description given of it in the power or direction from his principal to sell. See Upton o. Suffolk County Mills, 11 Cush. 586. An agent to purchase is acting within the scope of his authority, when he makes representa- tions as to the solvency of his principal. Hunter v. Hudson River Iron & Machine Co. 20 Barb. 498. But though a power to sell may imply a power to warrant the present condition or quality of the article sold, yet it does not imply a power to war- rant its future condition ; e. g. that flour shall keep sweet on a voyage to California, or that ice shall not melt on a voyage to India. Upton v. Suffolk County Mills, 11 Cush. 586. A power without restric- tion to sell and convey real estate has been held to give authority to the agent to exe- cute deeds with general warranty, binding the principal. Le Roy v. Beard, 8 How. (U. S.) 451 ; Peters v. Farnsworth, 15 Vt. 155 ; Vanada v. Hopkins, 1 J. J. Marsh. 293 ; Taggart v. Stanbery, 2 McLean, 543.] 288 CONTRACTS WITH AGENTS. servant without his master's particular authority. " If a man send his servant with ready money to buy goods, and the servant buy upon credit, the master is not chargeable. But if the servant usu- ally buy for the master upon tick, and the servant buy some things without the master's order, yet if the master were trusted by the trader, he is liable." (x) The defendant, who was a dealer in iron, and known by the plaintiff to be so, though they had never before had dealings to- gether, sent a waterman to the plaintiff for iron on trust, and paid for it afterwards. He sent the man again with ready money, but upon this occasion he received the goods without paying for them ; and it was l-uled, that the sending him upon trust for the first time amounted to giving him credit, so as to charge the defendant upon a second contract. («/) And so where a tradesman in the country had, in several instances, employed A. B. as his agent, to purchase goods from the plaintiff, a London dealer, on credit ; it was held that A. B. was thereby constituted the general agent of the coun- try tradesman, and that the latter was liable for goods which A. B. had subsequently bought as for the defendant, but without orders, and had appropriated to his, the agent's, own use. (2) But where a servant is supplied beforehand by his master with money to pay over to a tradesman, with whom the dealings have always been for ready money, the master is not liable if the servant do not pay the tradesman ; because the servant was never authorized to pledge his master's credit, (a) So, where the servant has invari- (x) Per Holt C. J. Anon. 1 Show. 95 ; Town v. Hendee, 27 Vt. 258.] See Gil- Southby v. Wiseman, 3 Keb. 625 ; Nick- man v. Robinson, 1 R. & M. 227 ; S. C. 1 son v. Brohan, 10 Mod. Ill; Pearce'v. C. & P. 642. Where a general authority Rogers, 3 Esp. 214 ; Hiscox v. Greenwood, to a clerk to indorse bills may be inferred ; 4 Esp. 174. Preseott v. Elinn, 9 Bing. 19. (y) Hazard v. Treadwell, 1 Str. 506. (2) Todd v. Robinson, 1 R. & M. 217, The principle of this case is correct; sed 266. See Whitehead v. Tuckett, 15 East, qucere, whether one solitary instance of rec- 400. [A general agency may be created ognized dealing on credit is sufficient to even by the frequent payment with knowl- create a general agency. [This case is edge of notes to which the payee's name said to be of questionable authority in has been forged. Mead v. Carpenter, 4 Boston Iron Co. v. Hale, 8 N. H. 363, in- Wend. 219. See Brigham u. Peters, 1 asmuch as there had been but one instance Gray, 139 ; Forsyth v. Day, 41 Maine, in which the master had paid for goods 382 ; Greenfield Bank v. Crafts, 2 Allen, taken by the servant, per Parker J. A 269.] purchase by a principal, personally, and (a) Rnsby 0. Scarlett, 5 Esp. 76; per on his own credit, ol -uuds selected by his Lord Abinger, Flemyng v. Hector, 2 M. & agent, is no authority for subsequent sales W. 172, 181 ; [Boston Iron Co. v. Hale, 8 to the agent alone, on the principal's credit. N. H. 363. But if an agent is ordered to CONTRACTS WITH AGENTS. 289 ably paid the account whenever it amounted to a certain sum, the master is not liable, if the tradesman allow the account to remain undischarged until it amount to a larger sum ; for, by so doing, he is presumed to give credit to the servant. (5) And where the master is in the habit of paying ready money, for articles furnished in certain quantities to his family ; if the tradesman suffer additional articles of the same sort to be delivered at the master's house, with- out informing the master, or satisfying himself that they were for his use, when in fact they were not, the master shall not be respon- sible, (c) Where, however, the servant is once authorized to pledge his master's credit, the latter is liable, although he subsequently furnish the servant with money to settle the demand, which he omits to do. (oT) And the same rules are equally applicable to other cases as between master and servant. Thus, where A. was the owner of a saw-mill, and B. was his foreman ; and B., as the agent of A., but without any express authority, entered into a contract in writ- ing to supply the plaintiff with a quantity of Scotch fir staves : it was held that this contract was binding on A., inasmuch as B. must be presumed to have had a general authority to enter into such con- tracts as the one in question, (e) Factors and brokers are both, it would appear, general agents. And hence, it follows, that — except in cases where it is Factors and known to be usual to limit their authority, although the general " actual limit may not be known (,/) — all contracts made a S ents - by them in the ordinary course of their employment, without notice by third parties of their private instructions, and without fraud or collusion, are binding on their principals. (#) And this is the case, buy, and is not furnished with funds, he K. 328. [Lobdell v. Baker, 1 Met. 193, may buy on credit. Sprague v. Gillett, 9 202.] Met. 91; Taft v. Baker, 100 Mass. 68, 75, (/) See Baines v. Ewing, L. Bep. 1 per Wells j.] Exch. 320. (6) Stubbing v. Heintz, Peake, 47. (jr) Daniel v. Adams, Amb. 495, 498; (c) Pearce v. Rogers, 3 Esp. 214. Petties v. Soame, Goldsb. 138 ; PickeriDg (d) Wayland's case, 3 Salk. 234 ; Bolton v. Busk, 15 East, 38, 43; Whitehead v. v. Hillersden, 1 Ld. Raym. 225 ; S. C. Tuckett, lb. 400 ; Rinquist u. Ditchell, Comb. 450. ["It was no concern of the Abb. Ship. 105 ; Russell on Factors, 77, creditor, that the servant embezzled his 82 ; Rusby v. Scarlett, 5 Esp. 76 ; [Lobdell master's money, after the debt had been „. Baker, 1 Met. 193; Arnold v. Halen- lawfully contracted." Parker J. in Boston bake, 5 Wend. 33 ; Rapp v. Palmer, 3 Iron Co. v. Hale, 8 N. H. 636.] Watts, 78 ; Lausatt v. Lippincott, 6 Serg. (e) Richardson v. Cartwright, 1 C. & & R. 386.] vol. i. 19 290 CONTRACTS WITH AGENTS. whether the parties with whom they deal have notice of the agency or not. (A) 2. But even in the case of a special agent, although the author- t - ity given be exceeded, yet the principal will become ficationby liable, by subsequently recognizing or assenting to the principal. , J * " & T . ° , ,. , , agent s contract or act. (i) It is, indeed, an established rule, that an act done for another by a person not assuming to act for himself, but for such other person, though without rfhy prece- dent authority whatever, becomes the act of the principal if subse- quently ratified by him : (&) or, in other words, as an authority may be presumed from previous employment in similar acts, so the same presumption arises from subsequent assent and acquiescence, according to the maxim " omnis ratihabitio retrotrahitur et mandato priori asquiparatur." (Z) Where, therefore, a broker made a con- tract in writing for the sale of goods, he not being authorized by one of his principals at the time, but the latter afterwards assented to such contract ; it was held, that the broker was an agent, duly authorized at the time the contract was entered into. (Z) It would appear, moreover, that slight evidence of ratification is (A) 5 & 6 Vict. u. 39, a. 1 ; 6 Geo. 4, c. 94, s. 4. (!) Ward v. Evans, 2 Salk. 442 ; S. C. 2 Ld. Raym. 928 ; Wilson v. Poulter, Str. 859 ; Rusby v. Scarlett, 5 Esp. 77 ; Hovil v. Pack, 7 East, 164, 166 ; [Duke of Beau- furt c Neuld, 12 CI. & Fin. 274.] (7c) Wilson v. Tumman, 6 M. & G. 236, 242 ; [Bigelow v. Denison, 23 Vt. 564 ; Frothingham v. Haley, 3 Mass. 68 ; Lent ,: Padleford, 10 Mass. 230, 236; Odiorne v. Maxoy, 13 Mass. 178, 182; Fisher v, Willard, 13 Mass. 379 ; Clealand v. Walk- er, 11 Ala. 1058 ; Downer a. Morrison, 2 Grattan, 237; Lee v, Fontaine, 10 Ala. 755 ; Clark v. Van Riemsdyk, 9 Cranch, 158; Moss u, Rossie Lead Mining Co. 5 Hill (N. Y.), 137 ; Rogers v. Knccland, 10 Wend. 218; Foster v. Bates, 12 M. & W. 256 ; Finney v. Fairhaven Ins. Co. 5 Met. 192; Blanchard v. Waite, 28 Maine, 51. If a party receives the benefit of an act done on his behalf without authority, and hold it after knowledge of the facts, he will be held to have ratified the transac- tion. Foster v. Swasey, 2 Wood. & M. 217; Veazie v. Williams, 8 How. (U. S.) 134. Where a person, assuming to act as the agent of another, exchanges property belonging to the latter for other property ; and the person for whom the agent as- sumed to act, with a full knowledge of the transaction, refuses to sanction it, but be- fore reclaiming his own property, partici- pates in a purchase of the property received in exchange, from the unauthorized agent, this will amount to a ratification. Hatch o. Taylor, 10 N. H. 538. .But see Has- tings u. Bangor House Proprietors, 18 Maine, 436. But this will not be the re- sult where the assumed agency, or the ex- cess of authority, is not known to the person on whose behalf it has been as- sumed so early as to enable him, before a material change of circumstances, to repu- diate the whole transaction without essen- tial injury. Bryant v. Moore, 26 Maine, 84.] {1) Maclean v. Dunn, 4 Bing. 722. CONTRACTS WITH AGENTS. 291 sufficient to bind the principal ; (m) and that if the agency be adopted at all, it will be held to have been adopted throughout. (V) [A principal is bound to disavow the unauthorized act of his agent the first moment the fact comes to his knowledge ; otherwise, in many cases, he makes the act his own ; as where the silence of the principal might cause a loss to third persons, or might result from a desire to speculate on the chances of profit, or where the principal would, in fact, gain an advantage by his silence ; in these and like cases the principal must act promptly, and disavow, or he ratifies, the transaction. In all cases the principal should disavow the unau- thorized act of his agent within a reasonable time after knowledge of it. (w 1 ) Implied ratifications extend only to such acts of the (in) Kinnitz v. Surrey, Paley on Agency, 171. [For acts which have been held to be a ratification of an assumed agency, see Finney v. Fnirhaven Ins. Co. 5 Met. 192; Richards v. Folsom, 11 Maine, 70 ; Bryant v. Sheely, 5 Dana, 530 ; Moss v. liossie Lead Mining Co. 5 Hill (N. Y.), 137 ; Des- patch Line &c. u. Bellamy Manuf. Co. 12 N. H. 206 ; Payne v. Smith, lb. 34. A parol acknowledgment by a principal, that an agent had authority under seal to enter into a sealed contract obligatory upon his principal, is competent evidence of such authority ; but if at the time of entering into it, the agent had in fact no authority under seal, the subsequent parol acknowl- edgment and ratification will not bind the principal. Blood u. Goodrich, 12 Wend. 525; S. C. 9 Wend. 68; Spafford u. Hobbs, 29 Maine, 148 ; Steiglitz v. Eger- ton, Holt's N. P. 141 ; Wells v. Evans, 20 Wend. 258 ; Hanford v. McNair, 9 Wend. 54 ; Stetson v. Patten, 2 Greeul. 358 ; Despatch Line &c. v. Bellamy Manuf. Co. 12 N. H. 205; Hunter v. Parker, 7 M. & W. 343 ; Boyd v. Dodson, 5 Humph. 37 ; Cummings e. Cassily, 5 B. Mon. 74. But an instrument of conveyance, though exe- cuted by an agent under seal, if it does not need a seal to make it effectual, in the par- ticular case, may be ratified by parol so as to operate a transfer, in the same manner as if it had no seal. Despatch Line &c. v. Bellamy Manuf. Co. 12 N. H. 206; Hunter v. Parker, 7 M. & W. 343. See Osborne v. Horner, 11 Ired. 359. So a principal may orally ratify a contract made in writing by one who was not au- thorized, in a case where a writing was re- quired by the statute of frauds. Maclean v. Dunn, 4 Bing. 722.] (n) Hovil v. Pack, 7 East, 164, 1G6; [Culver v. Ashley, 19 Pick.. 300; Hovey v. Blanchard, 13 N. H. 145 ; New Eng. Mar. Ins. Co. u. De Wolf, 8 Pick. 56. The subsequent adoption is, per se, a con- firmation of the assumed agent's act. Such ratification relates back to and in- corporates the original transaction, so that, as between the parties, their rights and interests are to be considered as arising at the time of the original act, and not merely from the date of the ratification ; and a suit to enforce the obligation of the party who ratifies, is, to all intents and purposes, a suit founded upon the original act or contract, and not upou the act of ratification. Grant v. Beard, 50 X. H. 129.] (k 1 ) [See Johnson v. Wingate, 29 Maine, 404 ; Grant v. Beard, 50 N. H. 132 ; For- syth v. Day, 46 Maine, 194 ; Bredin v. Dubarry, 14 Serg. & B. 30 ; Hastings v. Bangor House Proprietors, 18 Maine, 436 ; Benedict v. Smith, 10 Paige, 127 ; 2 Kent, 616 ; Bryant v. Moore, 26 Maine, 84, 87 ; Kentucky Bank v. Combs, 7 Barr, 543 • Cairnes v. Bleeckcr, 12 John. 300; Johnson v. Jones, 4 Barb. 369 ; Vianna v. Barclay, 3 Cowen, 281 ; Hutton v. Towns, 6 Leigh, 292 CONTRACTS WITH AGENTS. agent as are known to the principal at the time they are made, (n 2 ) An adoption of an agency in one part, with a knowledge of all the circumstances, operates as an adoption of the whole act ; for an act cannot be affirmed as to so much as is beneficial, and rejected as to the remainder, (n 3 ) Such adoption relates back to the original transaction, and places it on the same footing as if the authority had been conferred before the transaction.] (n 4 ) 47, 60, 61; Shaw v. Nudd, 8 Pick. 19; Klock v. Richtmyer, 13 John. 367 ; Towle v. Stevenson, 1 John. Cas. 110; Arm- strong v. Gilchrist, 2 John. Cas. 424 ; Cod- wise v. Hucker, 1 Caines, 526 ; Shrias u. Morris, 8 Cowen, 60 ; Copeland v. Mer- cantile Ins. Co. 6 Pick. 198 ; Richmond o. Starks, 4 Mason, 296 ; Peters v. Bal- listier, 3 Pick. 504 ; Martin v. Butler, Wright, 553 ; Steele v. Perry, Wright, 662; Bell v. Cunningham, 3 Peters (U. S.), 69 ; Delafield v. State of Illinois, 26 Wend. 192 ; Vcazie v. Williams, 8 How. (U.S.) 134; Forsyth o. Day, 41 Maine, 382 ; Ohio & Miss. R. R. Co. o. Middleton, 20 III. 629.] (n 2 ) [Thorndike v. Godfrey, 3 Green]. 429 ; Owings v. Hull, 9 Peters, 608, 629 ; Davidson v. Standley, 2 M. & Gr. 721 ; Bryant v. Moore, 26 Maine, 84, 87, 88 ; Johnson v. Wingate, 29 Maine, 404 ; Mo- disett v. Lindley, 2 Blackf. 119 ; Fletcher v. Dysart, 9 B. Mon. 413 ; Baker v. Byrne, 2 Sm. & M. 193 ; Copeland v. Mercantile Ins. Co. 6 Pick. 198 ; Skinner v. Gunn, 9 Porter, 305 ; Penn. & Del. & Md. Steam .Nav. Co. v. Dandridge, 8 Gill & J. 250, 323 ; Hays ». Stone, 7 Hill (N. Y.), 128.] (r?) [Benedict v. Smith, 10 Paige, 127 ; -Culver v. Ashley, 19 Pick. 300 ; Bcckwith .u. Baxter, 3 N. H. 67, 68; Corning v. Southland, 3 Hill, 552; Peters v. Ballis- tier, 3 Pick. 505 ; Moss v. Rossie Lead Mining Co. 5 Hill, 137 ; Hovey v. Blan- , chard, 13 N. H. 145; Hunter v. Stem- , bridge, 17 Geo. 243.] (n 4 ) [Lawrence v. Taylor, 5 Hill, 107, 113; Reynolds v. Dothard, 11 Ala. 431 ; jDavis u. School District, 44 N. H. 399 ; Low v. Connecticut & Passumpsic R. R. .46 N. H. 284 ; Despatch Line &c. v. Bel- lamy Manuf. Co. 12 N. H. 205; Grant ■j. Beard, 50 N. H. 129. So that where a sale made by an agent is ratified by his principal, the agent's representations, made at the time of sale, bind his princi- pal. Doggett v. Emerson, 3 Story, 700 ; Brower v. Lewis, 19 Barb. 574. See Des- patch Line of Packets v. Bellamy Man. Co. 12 N. H. 205. In Brigham v. Peters, 1 Gray, 139, it was held by the court, that when an agent applies a note, held by his principal, to the payment of a debt of the principal, the principal, if he fails to dis- avow the act of the agent as unauthorized, within a reasonable time after the trans- action with all the circumstances connected with it. comes to his knowledge, will be presumed to have ratified and adopted it, and the court upon these facts would, as matter of law, hold the principal to have ratified the transaction ; and would not refer the matter of ratification to the jury. Forsyth v. Day, 41 Maine, 382. But if it is agreed between the agent and the person with whom he is dealing, that the agent shall submit the business between them to the principal for ratification, the principal is not bound without such ratification. Abbe u. Blood, 6 McLean, 106. An ex- ception to the general principle, that a subsequent ratification is equivalent to a previous authority, is, that intervening rights of third persons cannot be affected by the ratification. Morton J. in Bayley v. Bryant, 24 Pick. 202 ; Wood v. McCain, 7 Ala. 801 ; Fiske u. Holmes, 41 Maine, 441 ; Childs u. Digby, 24 Penn. St. 23. The important maxim, " Omnis ratihabi- tio retrotrahitur et mandate priori aequipa- ratur," in its application to actions of tort, has been fully considered in the recent case of Bird u. Brown, 14 Jurist, 132 ; 3 Law Rep. N. S. 121. The court were of CONTRACTS WITH AGENTS. 293 But where the party -making the contract had no authority to contract for the third person, and did not profess, at the time, to act for him, it seems that the subsequent assent of such third party, to be bound as principal, has no operation, (o) So, whether the agent be invested with a general or a special au- thority, the principal is not bound if the agent's act or _ rin _ contract do not fall within the general purview or scope cipal not of his powers, or be wholly unconnected with the business agent's actor intrusted to his direction. [The most general powers con- ferred on an agent are to be limited to the business or purpose, which the agent was appointed to accomplish.] (o 1 ) For instance, a do- mestic servant, who has never been employed in any other capacity, cannot bind his master by purchasing goods unconnected with do- mestic use, or by accepting bills of exchange in his master's name. So, a factor has no power, without special authority to that effect, to accept or indorse bills, so as to charge his principal, (p*) Nor has the manager of a mine any implied authority to borrow money on opinion that the doctrine involved in this maxim must, to enable the party on whose behalf the act was done, or his agent, to take advantage of it in an action of tort, be understood with this qualification, that the ratification must take place at a time and under circumstances when the ratifying party might himself have lawfully done the act which he ratifies. The above case arose upon an attempt to exercise the right of stoppage in transitu. Certain persons as- suming to act for the vendor of goods, but without authority, during the transitus gave notice of a claim to stop the goods in transitu on behalf of the vendor, at a time and under circumstances, when the stoppage would have been effectual, if ex- ercised by one having authority. The vendor subsequently adopted and ratified the act, but not until after the transitus was ended. But it was held to be too late, and the ratification was without effect. See Doe v. Goldwin, 2 Q. B. 143 ; Right o. Cuthell, 5 East, 491 ; Dunlap's Paley's Agency, 345, 346 ; Orcutt v. Nelson, 1 Gray, 536 ; Grout v. Hill, 4 Gray, 361 ; Childs v. Digby, 24 Penn. St. 23.] (o) See Fenn v. Harrison, 3 T. R. 757 ; Saunderson u. Griffiths, 5 B. & C. 909 ; per Parke J. Vere v. Ashby, 10 B. & C. 288, 298 ; Brook v. Hook, L. R. 6 Ex. 89, 100. (o 1 ) [See Rossiter v. Rossiter, 8 Wend. 494; Stainer v. Tysen,3 Hill (N.Y.), 279 ; Nichols v. State Bank, 3 Yerg. 107 ; Odiorne v. Maxcy, 13 Mass. 178; Wood v. McCain, 7 Ala. 801 ; Bates v. Keith Iron Co. 7 Met. 225 ; White o. Westport Cotton Manuf. Co. 1 Pick. 220; Storr v. Wyse, 7 Conn. 214 ; Frost . Hull, 9 Peters, 608 Peck v. Harriott, 6 Serg. & R. 146 ; Yerby v. Grigsby, 9 Leigh, 387 ; Falls v. Gaither, 9 Porter, 605; Peters v. Farnsworth, 15 Vt. 155 ; Babcock u. Western Railroad Corporation, 9 Met. 553, 555 ; Odiorne v. Maxcy, 13 Mass. 178; White v. West- port Cotton Manuf. Co. 1 Pick. 220 ; Bates v. Keith Iron Co. 7 Met. 225 ; Wood u. Goodridge, 6 Cush. 123. A general power to purchase an article implies a power to rescind the contract, if it becomes expedient to do so. Anderson v. Coonley, 21 Wend. 279. So an agent to sell may, with the assent of the vendee, rescind the contract and make a different one. Scott v. Wells, 6 Watts & S. 357. An agent to sell, may, as a necessary incident, receive so much of the purchase-money as is to be paid in hand. Yerby v. Grigsby, 9 Leigh, 387 ; Peck v. Harriott, 6 Serg. & R. 140. So he may make an equitable deduction from the stipulated price, by way of settlement, which will be binding on his principal. Taylor w.Nussbaum, 2Duer (N. Y.), 302.] (t) Woodin o. Burford, 2 C. & M. 391 ; Alexander v. Gibson, 2 Camp. 555. CONTRACTS WITH AGENTS. 295 the navigation of the ship to a favorable termination ; and, accord- ingly, when payments for which ready money is required, must be made in the course of the voyage, and the ship is in a foreign port where the owner has no agent ; or in an English port, but at a dis- tance from the owner's residence ; the master has power, as inci- dental to his appointment, to borrow money on the owner's credit, in order to make such payments, (u) And the usage of the trade, or the mode of transacting business in that department in which an agent is employed to act By usage of for his principal, will likewise, in the absence of express trade- directions, frequently determine the liability of the latter, (x) Thus, an agent may bind his principal by selling goods on a rea- sonable credit, if it be customary in the particular trade to dispose of goods on such terms, (y) But if the agent be retained to sell («) Beldon v. Campbell, 6 Exch. 886 ; Arthur v. Barton, 6 M. & W. 138 ; Thacker v. Moates, 1 Moo. & Rob. 79. [As to the implied authority of a factor to act for his principal, irrespective of his instructions or the ordinary usages of trade, in unfore- seen circumstances of necessity or great urgency, see Greenleaf v. t Moody, 13 Al- len, 363 ; Forrestier v. Bosnian, 1 Story, 43, 51.] (x) See Graves v. Legg, 2 H. & N. 210 ; Johnston v. XJsborne, 11 Ad. & E. 549, 557 ; Dickinson v. Lilwall, 4 Camp. 279 ; [Le Roy w.Beard,8 How. (U. S.) 451, 467. But evidence of usage is not admissible to enlarge an express power in writing, known to the party dealing with the agent. Delafield v. Illinois, 26 Wend. 192. See Attwood v. Munnings, 7 B. & C. 278 ; Schimmelpennick v. Bayard, 1 Peters, 264.] (y) Scott v. Surman, Willes, 400, 406 ; Houghton v. Matthews, 3 B. & P. 489 ; [De Lazard v. Hewitt, 7 B. Mon. 697 ; Bingham v. Bache, and Randolph v. Hol- lingsworth, cited 1 Yeates, 487 ; Lausatt v. Lippincott, 6 Serg. & R. 392 ; Delafield v. State of Illinois, 26 Wend. 192 ; S. C. 8 Paige, 527; 2 Hill, 159; Byrne v. Schwing, 6 B. Mon. 199. A factor with- out special instruction to sell for cash alone, and not on credit, may sell on credit, for the period usual in the market. Van Alden v. Vanderpool, 6 John. 69 ; M'Kinstry v. Pearsall, 3 John. 319; Rob- ertson v. Livingston, 5 Cowen, 473 ; Dunlap's Paley's Agency, 26, note, 212, and note; Leverick u. Meigs, 1 Cowen, 645 ; Russell v. Phillips, 1 Gall. 360 ; For- restier v. Bordman, 1 Story, 43 ; 2 Kent, 622 ; Story Agency, §§ 60, 200, 206, 226 ; Clark v. Van Northwick, 1 Pick. 343 ; M'Connico v. Curzen, 2 Call, 358 ; Ham- ilton v. Cunningham, 2 Brockenbrough, 331 ; Goodenow v. Tyler, 7 Mass. 36 ; Hapgood o. Batcheller, 4 Met. 573, 576 ; Barksdale v. Brown, 1 Nott & McC. 517 ; Pourie v. Fraser, 2 Bay, 269 ; James v. M'Credie, 1 Bay, 294 ; Greely v. Bartlett, 1 Greenl. 172 ; Symington u. McLin, 1 Dev. & Bat. 291. The factor may in such case take a negotiable note for the price payable to himself or order without mak- ing the debt his own. Goodenow v. Tyler, 7 Mass. 36 ; Greely v. Bartlett, 1 Greenl. 175 ; Tarlton v. M'Whorter, 5 Stew. & Port. 2S4 ; Kidd v. King, 5» Ala. 84 ; Rogers v. White, 6 Greenl. 193 ; Dwight v. Whitney, 15 Pick. 179. And if the factor should include in such note the price of goods sold on his own account or on account of other principals, it seems, that this fact merely would not render him per- sonally liable. Hapgood v. Batcheller, 4 Met. 573 ; Corlies v. Cumming, 6 Cowen, 181 ; Hamilton „. Cunningham, 2 Brock- 296 CONTRACTS WITH AGENTS. goods, and to deliver the same according to the terms of the con- tract, to such person as shall become the purchaser ; and the terms of the contract made by the agent be, that the goods are to be paid for on delivery, the agent has no authority to part with them except on payment of the purchase-money, (z) So it is not usual to sell stock on credit, («) or to give credit for goods sold at an auction ; (6) and, accordingly, a stockbroker, or auctioneer, has no authority to act in opposition to the custom in this respect, without the express order of his principal. (5 1 ) Where the authority was given to several, they must all join Authority to m exercising it, otherwise the principal will not be several. bound, (c) Nor can an agent, unless with the assent of the principal, or from Agent can- necessity, or in accordance with the usage of trade, (c 1 ) rd' delegate delegate his authority to another ; (ef) and, accordingly, his authority, the principal will not be bound by the contract of a sub- agent, whose appointment is not thus sanctioned. enbrough, 351. But see Symington v. McLin, 1 Dev. & Bat. 291 ; Brown u. Ar- row, 6 Serg. & W. 402. Whether a fac- tor shall be liable, if he has the notes, thus taken by him, discounted, seems to depend upon the question, whether the discount is obtained merely for the use of the factor, or for the benefit of the princi- pal. See Myers u. Entriken, 6 Watts & S. 44; Towns u. Birchett, 12 Leigh, 174 ; Hapgood v. Batcheller, 4 Met. 573 ; Win- chester v. Hackley, 2 Cranch, 242 ; Rob- ertson v. Livingston, 5 Cowen, 473 ; Byrne v. Schwing, 6 B. Mon. 199 ; Townes v. Birchett, 12 Leigh, 174. A factor who sells goods on credit, contrary to the direc- tions of his principal, becomes personally responsible ; and the principal may recover of him the entire amount of the debt. Walker v'. Smith, 4 Dall. 389.] (z) Boorman v. Brown, 3 Q. B. 511. [If an agent or factor, authorized to sell only for cash, sells for credit, he becomes immediately responsible to his principal. Parsons v. Martin, 11 Gray, 115.] (a) Henderson u. Barnewall, 1 Y. & J. 387 ; Wiltshire v. Sims, 1 Camp. 258. (6) Brown v. Staton, 2 Chit. 353. (V) [Delafield ,.. State of Illinois, 26 Wend. 192; S. C. 2 Hill (N. Y.), 159; Ives v. Davenport, 3 Hill (N. Y.), 374.] (c) Brown v. Andrew, 18 L. J. Q. B. 153; Bell i _>Tixon, 9 Bing. 393. [See Mofflt v. Jaqiiins, 2 Pick. (2d ed.) 331, note (1); Despatch Line &c. V.Bellamy Manuf. Co. 12 N. H. 226; Andover v. Grafton, 7 N. H. 298, 304 ; Low o. Per- kins, 10 Vt. 532 ; Union Bank u. Beirne, 1 Grattan, 226 ; Caldwell v. Harrison, 11 Ala. 755 ; 2 Kent, 633 ; Jewett v. Alton, 7 N. H. 253 ; Johnston v. Bingham, 9 Watts & S. 56. It appears from the cases that the rule is different in a matter of public trust or of power conferred for public purposes ; and, if all meet in the latter case, the act of the majority will bind. 2 Kent, 633, and cases in note ; Woolsey v. Tompkins, 23 Wend. 324 ; Caldwell v. Harrison, 11 Ala. 755.] But this rule would seem not to be strictly fol- lowed in cases of mercantile agency. See Godfrey v. Saunders, 3 Wils. 73 ; Dickson v. Lodge, 1 Stark. 226. (c 1 ) [See Darling v. Stan wood, 14 Allen, 504.] (d) Cockran u. Irlam, 2 M. & S. 301, 303; Trueman a. Loder, 11 A. & E. 589, 594; Henderstfcn v. Barnewall, 1 Y. & J. CONTRACTS WITH AGENTS. 297 3. At common law it was held, that an agent authorized to sell goods could not, although the apparent owner thereof by permission of his principal, pledge the same, (e) by de- power to livering to a pawnee either the goods themselves, or any p 387, 394, 395; [Warner v. Martin, 11 How. (U.S.) 209, 223, 224; Stoughton v. Baker, 4 Mass. 522 ; Tippetts v. Walker, 4 Mass. 592 ; Emerson v. Prov- idence Hat Manuf. Co. 12 Mass. 237 ; Gillis <) Per Cur. Isberg v. Bowden, 8 Exch. diet, 5 Gray, 561 ; Higgins v. Senior, 8 M. 852, 859 ; Sims 0. Bond, 5 B. & Ad. 389, & W. 834. As to the exception in the 393; George v. Claggett, 7 T. B. 359; case of commercial paper, see the cases Rabone v. Williams, lb. 360 (a) ; Can- v. cited to that point, above in this note.] Hinchcliff, 4 B. & C. 547 ; "Moore v. Clc- (q) Humphrey v. Lucas, 2 C. & K. 152. mantson, 2 Camp. 22. Sec, also, Rama- (r) Foster v. Bates, 12 M. & W. 226. zotti v. Bowring, 7 C. B. N. S. 851 ; and (s) See per Blackburn J. S purr v. Cass, 6 Geo. 4, c. 94, s. 1. L. R. 5 Q. B. 656, 659 ; Sims v. Bond, 5 (x) See cases cited n. (a), supra. [See B. & Ad. 389, 393 ; Schack v. Anthony, 1 Gardner v. Allen, 6 Ala. 187 ; Taintor v. M. & S. 575 ; Berkeley v. Hardy, 5 B. & Prendergast, 3 Hill (N. Y.), 72 ; Violett v. C. 355 ; Courteney v. Fisher, 4 Bing. 4 ; Powell, 10 B. Mon. 347 ; Tutt v. Brown, [Violett v. Powell, 10 B. Mon. 347.] 5 Littell, 1; Parker v. Donaldson, 2 Watts & S. 9. Where an agent employed CONTRACTS WITH AGENTS. 307 allowed to sell in his own name ; and payment is made to the agent, as such, according to the terms of the contract, and in the usual course of business ; the principal, if he has not previously required payment to himself, shall be bound thereby. (y~) But this doctrine does not apply where the agent is a mere broker, and has not the possession of, or is not intrusted with, the indicia of property in the goods, (z) And in like manner it is held, that where a party who has purchased goods from a factor " as factor," is sued by the principal for the price, he is not entitled to set off in that action a debt due to him from the factor, (a) And although a party who is described on the face of a contract as an agent, but who is, in fact, the principal, cannot in genei'al sue thereon in that capacity ; (5) yet it has been cipal who contracts as held, that if such a contract has been in part performed, agent may and that part performance has been accepted by the other contracting party, with full knowledge that the party who was described as agent in the contract was the real principal, the latter may, after that, sue in his own name for the completion of the contract, (c) And so, although a man cannot in strictness be said to be agent to himself; yet, with regard to contracts of charter- party, it has been held that he may fill both characters ; that is, that he may contract as agent for the freighter, whoever that freighter may turn out to be ; and may afterwards himself adopt the char- acter of freighter, and sue as principal on the charter-party. ((#) to collect money in New York, and to re- try, binds the principal, but not a payment mit it to the principal, lent it there to the in other goods. Howard v. Chapman, 4 defendants, to whom he was indebted in a C. & P. 508. See Hodnett v. Tatum, 9 sum larger than the amount lent, telling Geo. 70. But an agent to sell will not be them that he could lend it until he should allowed to discharge a debt due to his be ready to return home, but without in- principal, by agreeing to take in payment forming them that the money belonged to that which is worthless and void. Sang- the principal, it was held, that the defend- ston v. Maitland, 11 Gill & J. 286.] ants could retain the money, as against (z) Baring v. Corrie, 2 B. & Aid. 137 ; the principal, even after notice that it be- 6 Geo. 4, c. 94, s. 1. longed to him. Lime Bock Bank v. (a) Fish v. Kempton, 7 C. B. 687; 18 Plimpton, 17 Pick. 159.] L. J. C. P. 206 ; Semenza u. Brinsley, 18 (y) Drinkwater v. Goodwin, Cowp. 251, C. B. N. S. 467. 255 ; 6 Geo. 4, c. 94, s. 4. This statute, (6) Bickerton v. Burrell, 5 M. & S. however, applies only to cases where the 383. agent's ordinary business is that of a fac- (c) Bayner v. Grote, 15 M. & W. 359 tor. Monk v. Whittenbury, 2 B. & Ad. 365. 484 ; and see Baines v. Swainson, 32 L. (d) Schmalz v. Avery, 16 Q. B. 655 ; J. Q. B. 281. [A payment in cash to a 20 L. J. Q. B. 228, 232. traveller who collects orders in the coun- 308 CONTRACTS WITH AGENTS. General rule. 5. When the Agent is personally liable. 1. Upon the principle that the contract of an agent is the con- tract of the principal, an agent is not liable upon any agreement, into which he enters merely in his represen- tative capacity, (e) But wherever an agent enters personally into a contract, or pledges his own credit, by concealing his principal (e 1 ) or otherwise, this gives the other party a right of action against («) Ex parte Hartop, 12 Ves. jun. 349, 352 ; Thomas ». Edwards, 2 M. & W. 215, 217. [See 2 Kent, 630 ; Rathbon v. Bud- long, 15 John. 1 ; Brown v. Rundlett, 15 N. H. 360 ; Meadows v. Smith, 12 Ired. 18; Shelton v. Darling, 2 Conn. 435; Hovey v. Magill, 2 Conn. 680, 682 ; Key v. Parnham, 6 Harr. & J. 418 ; La Farge v. Kneeland, 7 Cowen, 456 ; Bradford v. Eastbum, 2 Wash. C. C. 219 ; Hall v. Huntoon, 17 Vt. 244. And where the name of the principal was signed by his agent to a note, on which there was noth- ing to indicate that it was done by the agent, it was held, that parol evidence was admissible to prove that the signature of the principal was made by his direction, and that the principal upon such proof would be bound thereby. Morse v. Green, 13 N. H. 32 ; Forsyth v. Day, 41 Maine, 382. In Chitty on Bills, 33, it is said that " the drawing, accepting, or indorsing as agent for another person may be effected by merely writing the name of the princi- pal, as if he himself were actually the party signing." See Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326. The bearing of Wood v. Goodridge, 6 Cush. 117, is against the validity of such a mode of signing a contract by an agent for his principal. The court, however, in this last case admit that such a mode of signing is valid, if done in the presence of the principal and by his direction. Still it is urged that such a mode of signing in other cases would be attended with great difficulties and dangers both to the princi- pal and to third parties. But certainly as to third persons it could make no dif- ference whether » signature was so made in the presence or in the absence of the principal ; and aS to the principal he may fairly be assumed to understand his rights and the difficulties and dangers he will encounter when he gives authority to one thus to use his name even in his ab- sence. Most assuredly, if a principal should knowingly receive the avails and profits of contracts thus entered into by some person acting as his agent, but sign- ing his name as if it were the principal's own act, he would be held to have ratified the transaction, and would be bound by it. See Weed v. Carpenter, 4 Wend. 219. If, then, a party has in fact given authority to another to make his signature to a con- tract in this particular manner, even in his absence, is there any reason, founded in principle, why the party so giving author- ity should not be bound by the contract when made ? The case of Wood v. Good- ridge, raised the question of authority; and the court might very fairly decide that the particular power of attorney did not authorize this particular mode of ex- ecution. See per Lawrence J. in Wilks v. Back, 2 East, 142, 145. The case of Wood v. Goodridge, supra, was questioned in Forsyth v. Day, 41 Maine, 382.] (e 1 ) [Cabot Bank v. Morton, 4 Gray, 156; Fuller v. Smith, 1 C. & P. 197; Canal Bank u. Bank of Albany, 1 Hill (N. Y.), 287 ; Royce v. Allen, 28 Vt. 234 ; Merrill v. Wilson, 6 Ind. 426. Even if the party dealing with him had the means of finding out the principal. Thompson v. Davenport, 9 B. & C. 78 ; Raymond v. Crown & Eagle Mills, 2 Met. 319 ; Tain- tor v. Prendergast, 3 Hill (N. Y.), 72; Owen v. Gouch, 2 Esp. 567.] CONTRACTS WITH AGENTS. 309 him. (/ ) So, if a person professing to act as agent enter into a contract, and there be not, in fact, any principal then in existence ; the agent will be personally liable on such contract. (#) And where an agent enters in his owri name into an agreement in writ- ing, he cannot relieve himself from his liability thereon, even by showing that, at the time such agreement was made and signed, the other contracting party knew that he was only an agent in the transaction. (K) where there is no responsible principal, or where the agent becomes liable by an un- dertaking in his own name, or when he exceeds his power." 2 Kent, 630. See Dunlap's Paley's Agency, 371 et seq. ; Harper v. Williams, 4 Ad. & E. N. S. 232; Amos v. Temperly, 8 M. & W. 798; Rathbon u. Budlong, 15 John. 1 ; Kirkpatrick v. Stainer, 22 Wend. 244; Myer v. Barker, 6 Binney, 234 ; Taintor v. Prendergast, 3 Hill, 72 ; Waring o. Mason, 18 Wend. 425; Byles Bills (6th Eng. ed.), 29; Taber v. Cannon, 8 Met. 460. In Taber v. Cannon, 8 Met. 460, Shaw C. J. said : " We think it is set tied by authorities, that when it is known that a person is acting as agent, or when a draft is addressed to him as agent, yet if he give or accept it in its own name he is personally liable, and, as a converse of this proposition, his principal is not liable." See Bedford Com. Ins. Co. v. Covell, 8 Met. 442. It must be admitted, however, that the language of Lord Abinger, and Parke B. in Beckham u. Drake, 9 M. & W. 78 ; S. C. 11 M. & W. 315, supports the position, that a principal, when discov- ered, may be sued upon a written contract entered into with his agent on his behalf, though the name of the principal nowhere appears in the contract. So also the de- cision in Higgins u. Senior, 8 M. & W. 834, which was cited and commented on without dissent in Huntington v. Knox, 7 Cush. 374. And such seems now to be the well established doctrine. Ante, 303, note (o). These cases, however, take a distinction between charging the unnamed principal, upon a. written contract, and discharging the agent, who has bound him- self by contracting in his own name ; parol (/) Franklyn v. Lamond, 4 C. B. 637 ; Seaber v. Hawkes, 5 M. & P. 549 ; Thom- son v. Davenport, 9 B. & C. 78 ; Paterson v. Gandasequi, 15 East, 62; Spittle o. Lavender, 2 B. & B. 452 ; M'Brain v. For- tune, 3 Camp. 317. [See Torry v. Holmes, 10 Conn. 500; Bebee v. Robert, 12 Wend. 413 ; Scott o. Mesick, 4 Monroe, 535 ; Cunningham v. Soules, 7 Wend. 106 ; Wilkins v. Duncan, 2 Litt. 168; Sumner v. Williams, 8 Mass. 198 ; Keen v. Sprague, 3 Greenl. 77, 80 ; Mauri u. Heffernan, 13 John. 58 ; Mills v. Hunt, 20 Wend. 434 ; M'Cord v. Wright, 4 John. Ch. 669 ; Ba- con o. Soudley, 3 Strobh. 403 ; Allen v. Eostain, 11 Serg. & R. 362; Waring v. Mason, 18 Wend. 425 ; Wilder v. Cowles, 100 Mass. 487. Where a man signs aeon- tract in his own name, he is ordinarily to he considered a contracting party and bound as such, and there must be some- thing very strong upon the face of the in- strument to prevent that liability from at- taching to him. Cooke v. Wilson, 1 C. B. N. S. 153. See Williams v. Christie, 4 Duer (N. Y.), 29.] Mere bearer of money not liable ; Coles v. Wright, 4 Taunt. 198. (g) Kelner v. Baxter, L. R. 2 C. P. 174. (h) Higgins v. Senior, 8 M. & W. 834 ; Jones v. Littledale, 6 Ad. & El. 486 ; Ma- gee v. Atkinson, 2 M. & W. 440 ; [Hast- ings v. Lovering, 2 Pick. 221, 222 ; Brown u. Rundlett, 15 N. H. 360; Hovey v. Pitcher, 13 Missou. 191 ; Andrews u. Al- len, 4 Harring. 452 ; Newhall o. Dunlap, 14 Maine, 180; Savage v. Rix, 9 N. H. 263; Austin v. Roberts, 2 Miles, 254. The cases in which an agent renders himself personally responsible, are stated by Mr. Chancellor Kent to be, " only when the principal is not known, or 310 CONTRACTS WITH AGENTS. So, there is no doubt that a person who enters into a contract, Agent may which is expressed to be made by him for and on behalf be personally f ano ther, may still contract thereby in such terms as though con- to bind himself personally. And, accordingly, the ques- presscd to be tion in such cases is whether, looking at the contract as on behalf of' a whole, it appears to have been intended that he should another. be personally liable thereon. (0 Thus, if an agent, by deed under his own hand and seal cov- enant " for himself, his heirs, &c." for the act of another, he is per- sonally liable upon his covenant, although he describe himself in the deed as covenanting " for and on the behalf" of another person. (F) So, where the defendant, by a written agreement expressed to be made by himself, on " behalf of A. B. of the one part," and the plaintiff of the other part, stipulated that " he, the defendant, would execute to E., the plaintiff, a lease of certain premises," which, as it was proved, belonged to A. B.; Best C. J. held that the defendant was personally liable. (I) evidence being admissible for the former purpose, but not for the latter. Byles Bills (6th Eng. ed.), 26, 27 ; Williams a. Christie, 4 Duer (N. Y.), 29. It is con- ceived, also, that the above decisions do not affect the law as to negotiable in- struments. Bank of U. S. u. Lyman, 20 Vt. 666; Byles Bills (6th Eng. ed.) 27.] ((') See Deslandes v. Gregory, 2 E. & E. 602; 5. C. in Cam. Scac. lb. 610; Parker v. Winlo-w, 7 E. & B. 942 ; Eeid r. Drea- per, 6 H. & N. 813 ; Tanner i>. Christian, 4 E. & B. 591 ; Lennard v. Robinson, 5 E. & B. 125; Mare v. Charles, lb. 978; Wilson v. Zulueta, 14 Q. B. 405; Paice v. Walker, L. E. 5 Ex. 173; [Smith v. Wat- son, 14 Vt. 332.] (k) Appleton v. Binks, 5 East, 148 ; and see Hancock v. Hodgson, 4 Bing. 269. (I) Norton a. Herron, 1 R. & M. 229 ; S. C. 1 C. & P. 648. [But a distinction has been very generally regarded as exist- ing between deeds and simple contracts, in reference to the forms of expression and of execution necessary to bind the principal. Greater latitude of construction and proof has been admitted in the case of simple contracts than of deeds. In contracts not under seal, it will be sufficient, where the agent intends to bind his principal and not himself, if it appear in such contracts, that he acts as agent. Andrews a. Estes, 2 Eairf. 267 ; New England Mar. Ins. Co. v. De Wolf, 8 Pick. 56 ; Rice u. Gove, 22 Pick. 158, 161 ; Abbey v. Chase, 6 Cush. 56 ; Townsend v. Cowing, 23 Wend. 4.35 ; Townsend v. Hubbard, 4 Hill (N. Y.), 351 ; Evans v. Wells, 22 Wend. 324. See Mears «. Morrison, 1 Breese, 172 ; Fowler u. Shearer, 7 Mass. 14 ; Skinner v. Gunn, 9 Porter, 305 ; Elwell v. Shaw, 16 Mass. 42; Spencer v. Field, 10 Wend. 87; Clark u. Courtney, 5 Peters, 319; Hefferman v. Adams, 7 Watts, 116; Grubbs u, Wiley, 9 Sm. & M. 29; Skinner v. Dayton, 19 John. 568 ; Stinchfield v. Little, 1 Greenl. 231 ; Elwell v. Shaw, 1 Greenl. 339; Hale v. Woods, 10 N. H. 470. But even in the case of sealed instruments no precise form of words is necessary to bind the principal. The capacity in which the agent acts must appear from the face of the instrument ; where this is the case no more is needed. Magill v. Hinsdale, 6 Conn. 464 ; Hovey i». Magill, 2 Conn. 680, 682 ; Holmes e. Carman, 1 Preeman Ch. 408 ; Deming v. Bullett, 1 Blackf. 241 ; Hunter v. Miller, 6 B. Mon. 012; Wood v. Goodridge, 6 CONTRACTS WITH AGENTS. 311 So, where the defendants, who were directors of a joint stock newspaper company, gave a promissory note in the following form : " On demand we jointly and severally promise to pay to Mr. L. H., or order, the sum of 250?. value received, for and on behalf of the Wesleyan Newspaper Association ; " and this note was signed by them as " Directors ; " it was held, that the words " we severally promise " were equivalent to we personally promise ; and that the defendants were, therefore, personally liable on the note, (to) So, where the attorneys on both sides, on an indictment against a parish for not repairing a road, entered into an agreement in which one attorney, " on the part of the parish, agreed to pay the costs ; " this was held to be a personal engagement on the part of such attorney, (n) So an attorney who " personally " under- takes, in writing, that a record shall be withdrawn, and costs paid, in a cause in which he is concerned for another, is liable to be sued upon such engagement, (o) And so, where the solicitors of the assignees of a bankrupt tenant, upon whose lands a distress had been put by the landlord, gave the following written under- taking : " We, as solicitors to the assignees, undertake to pay to Cush. 122. In Brinley v. Mann, 2 Cush. 337, the strict technical rule of the com- mon law, requiring a sealed instrument, executed by an attorney or agent, to be executed in the name of the principal, in order to make it his deed, was applied. And in Abbey v. Chase, 6 Cush. 56, Metcalf J. said, it had never been relaxed in Eng- land or in Massachusetts. And in Mussey v. Scott, 7 Cush. 216, "execution in the name of the principal," was explained to mean that the signing, sealing, and delivery of the deed must be in the name of the principal. See Clark v. Courtney, 5 Peters, 350 ; Wilburn v. Larkin, 3 Blackf. 55 ; Hunter v. Miller, 6 B. Mon. 612. As to the agent, who executes, as such, a sealed instrument, purporting to be the deed of his principal, he does not bind himself thereby, unless the instrument contains an expression of his personal undertaking to perform the contract on behalf of his prin- cipal. Abbey v. Chase, 6 Cush. 54 ; Hop- kins v. Mehaffy, 11 Serg. & R. 126.] (m) Healey v. Storey, 3 Exch. 3. [The same doctrine was maintained in Bradlee u. Boston Glass Co. 16 Pick. 347. But in Rice v. Gove, 22 Pick. 158, the principal was held bound, notwithstanding the use of the words "jointly and severally" in the contract signed by the agent on his be- half. Whether a party is to be regarded as a mere agent, or binds himself as prin- cipal in a contract, depends upon the in- tention, as gathered from a construction of the language of the contract in connection with its subject matter and the circum- stances. Bradlee v. Boston Glass Co. supra ; Pentz v. Stanton, 10 Wend. 277 ; Rath- bon v. Budlong, 15 John. 1 ; Mott v. Hicks, 1 Cowen, 513 ; Bank of Rochester v. Mon- teath, 1 Denio, 402 ; Magee v. Atkinson, 2 M. & W. 440 ; Rossiter u. Rossiter, 8 Wend. 494 ; Hills v. Bannister, 8 Cowen, 31 ; Poster v. Fuller, 6 Mass. 58 ; White u. Skinner, 13 John. 307; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326 ; Long v. Colburn, 11 Mass. 97; Magill v. Hins, dale, 6 Conn. 464 ; New England M. Ins, Co. v. De Wolf, 8 Pick. 56, 61, 62 ; An. drews v. Estes, 2 Fairf, 267 ; Simons v. Heard, 23 Pick. 120.] (n) Watson v. Murrell, 1 C. & P. 307. (o) Iveson v, Conington, I B- & C, 160 ; 312 CONTRACTS WITH AGENTS. the landlord his rent, &c," it was held that they were personally liable, (p) But where a promissory note was made in the following form : " Three months after date we, two of the directors of the When not . it-ip^i • i liable on such 'A. Society, by and on behalt of the said society, do hereby promise to pay M. or order the sum of 611. 15s. 6d., value received ; " and the note was sealed with the seal of the society, and signed by two of the directors : it was held that it did not bind the parties who signed it. (. Wilson, 4 T. R. 353. [If services so rendered, A. agreed to pay him a person let another have a sum of money a certain salary, as well as to pay and to be employed in trade, upon an agree- allow him a commission of seven per cent, ment that the net profits shall be equally on the profits arising from goods sold, &c, divided between them, this does not con- after deducting therefrom the amount of stitute a partnership as between the par- the salary and the rent of the store, it was tics, but it will be considered as a loan of held, that this did not constitute a partner- money, although there would be a partner- ship. Miller v. Bartlett, 15 Serg. & R. ship as to third persons. Bailey v. Clark, 137. See Julio v. Ingalls, 1 Allen, 41 ; 6 Pick. 372. Where a person advanced Hitchings v. Ellis, 12 Gray, 449.] CONTRACTS WITH PARTNERS. 323 So, an agreement between A., a merchant, and B., a broker, that they should order certain goods, which were to be shipped upon an adventure and paid for by A. ; and that if any profit should arise from them, B. should have half for his trouble ; or an agree- ment that B. should purchase goods for A., and should receive for Ms trouble a certain proportion of the profits in lieu of brokerage, and should bear a proportion of the losses ; does not necessarily constitute a partnership as between the parties themselves ; al- though, by such an arrangement, B. might be rendered liable as a partner, to third persons, (h) In Reid v. Hollinshead («') it appeared, that A., a merchant in London, directed B., a broker in Liverpool, by letter, to purchase goods, and stated that B. was to be allowed to be one third in- terested therein ; he acting in the business free of commission. B. agreed to purchase the goods on these terms. Having so done, there was much correspondence between the parties, in which the transaction was mentioned as a joint purchase and concern, $-c. — and B. sent a policy agah»st fire to A., and stated that the goods were warehoused " for their joint security ; " and it was held, that they were partners in the goods, even as between themselves. But where A. sold to B., by deed, his interest in the profession and practice of a surgeon and apothecary, carried on by him in P. ; and covenanted not to exercise the said profession within certain limits ; and also to reside for a year in P., and attend to the prac- tice as he had hitherto done, and to introduce B. to his patients ; and do every reasonable act for promoting the interest of the con- cern ; and B. covenanted, in consideration thereof, to allow A., during the year, a moiety of the clear profits of the business, to be paid at the expiration thereof; it was held, that the parties were not thereby constituted partners inter se, during the year. (7c) So, where a number of persons were associated together in a society for the protection of trade, — the professed objects of which were, "to watch the progress of any measure in parliament affect- ing trade interests, and to protect its members from the practices of the fraudulent and dishonest," — each of the members having to contribute a certain sum annually to the funds of the society, and becoming thereby entitled to such benefits as might result from its (h) Hesketh v. Blanchard, 4 East, 144 ; (1c) Eawlinson v. Clarke, 15 M. & W. Smith v. Watson, 2 B. & C. 401. 292. (i) 4 B. & C. 867. 324 CONTRACTS WITH PARTNERS. operations ; it was held that this did not make them partners inter se. (0 So the usual agreement between the captain and seamen of a ship employed in the whale fishery, that the produce of the voyage should be divided in certain proportions between the owner, the captain, and the crew, does not constitute a partnership between them, (m) And one part owner of a ship is not necessarily a part- ner with the other part owners, (n) But an association of several persons, and a common subscrip- tion amongst them for the purpose of obtaining an act of parliament to make a railway, has been held to constitute a partnership, (o) And so has an arrangement between two persons who agreed to run a coach, on the terms that each should find horses for partic- ular parts of the road and that the profits of each should be cal- culated according to the number of miles worked by his own horses. (_p~) (I) Caldicott v. Griffiths, 8 Exch. 898. (m) Wilkinson v. Frasier, 4 Esp. 182; [Baxter v. Rodman, 3 Pick. 435 ; Grozier v. Attwood, 4 Pick. 234 ; Turner v. Bis- sell, 14 Pick. 195; Coffin v. Jenkins, 3 Story, 112 ; Rice v. Austin, 17 Mass. 206 ; Bishop v. Shepherd, 23 Pick. 495 ; Macy v. De Wolf, 3 Wood. & M. 193. So the master of a ship, who, instead of receiving wages, is to share in the profit of the ad- venture on which he sails, is not a partner with the owner. Mair v. Glennie, 4 M. & Sel. 240. So where the master of a vessel has agreed to take her of the owner and employ her in the freighting business, the master to victual and man her, and pay one half of certain charges, the owner to pay the other half and certain other charges, and put the vessel in repair, and all the earnings are to be divided equally between the master and owner, the master and owner are not partners even as to third persons. Cutler v. Winsor, 6 Pick. 335. See, also, Taggard u. Loring, 16 Mass. 336 ; Perry v. Osborne, 5 Pick. 422 ; Winsor u. Cutts, 7 Greenl. 261 ; Thomp- son v. Snow, 4 Greenl. 264 ; Reynolds u. Toppan, 15 Mass. 370 ; Bowman v. Bailey 10 Vt. 170. But where, in such a case, the master had the power to invest the freight on joint account, it was held in Cox v. Delano, 3 Dev. 89, to constitute a partnership. See Collyer Partn. §§ 34, 35, and notes. Cases of shipments on half profits have not been regarded as creating a partnership between the shipper and shipowner. Rice v. Austin, 17 Mass. 206.] (n) Holmes v. Smith, 7 Bing. 709. [See Thorndike v. De Wolf, 6 Pick. 120; 3 Kent, 151 et seq.; Nichol v. Mumford, 4 Johu. Ch. 528; S. C. 20 John. 611 ; Coll- yer Partn. § 1185, and notes; Ohl u. Eagle Ins. Co. 4 Mason, 390 ; Hopkins v. Forsyth, 14 Penn. St. 34. If property is given to two as owners of a ship, it be- longs to them as tenants in common, and not as partners. Thorndike v. De Wolf, 6 Pick. 120 ; Jackson i>. Robinson, 3 Mason, 138; 3 Kent, 157; Harding v. Foxcroft, 6 Greenl. 76. Still, a ship, as well as any other chattel, may be held in strict partnership. Collyer Partn. § 1185, and note; 3 Kent, 154; Phillips r. Purington, 15 Maine, 427.] (o) Holmes v. Higgins, 1 B. & C. 74. (p) Eromont v. Coupland, 2 Bing. 170. [They are in such case not only liable to third persons, but they are partners be- tween themselves. Champion v. Bostwick, CONTRACTS WITH PAETNEKS. 325 The effect of becoming a subscriber to an intended company, as regards the creation of a partnership between the members Effect of sub- themselves, as well as in reference to the public, was jo"^'"^ * fully considered in the case of Fox v. Clifton. (c[) It ap- company. peared that a prospectus was issued for a distillery company, which was to have a capital of 600,000Z. in 12,000 shares, and was to be conducted pursuant to the terms of a deed to be drawn up. All persons who did not execute the deed within thirty days after it • was ready, were to forfeit all interest in the concern. No more than 7,500 shares were ever allotted ; only 2,300 persons paid the first deposit ; only 1,106 the second ; and only 65 signed the deed : and it was held — upon the question whether, in these circum- stances, a partnership had been actually formed — that if the right to participate in the profits of a joint concern was to be taken, as undoubtedly it ought to be, as a test of a partnership, the defend- ants were not entitled at any time to demand a share of profits, if profits had been made, inasmuch as they had never fulfilled the con- ditions upon which they subscribed. The matter had proceeded no further, than that the defendants had offered to become partners in a projected concern ; and that concern had proved abortive before the period at which the partnership was to commence, (r) And it would seem that, in general, where a party agrees to take shares in a concern which is to have a certain capital, his agreement is conditional, i. e. provided that capital be subscribed for; and that unless this condition be performed or waived, he does not become a shareholder in the concern, in the sense, that is, of a person who has agreed to take shares therein, (s) So the payment of money for certain shares in a mining com- pany, and the receipt by the party paying such money, of a mere certificate that he is proprietor of those shares, are not sufficient to constitute him an actual partner in the company ; there being no valid assignment to him of any interest in the mine, (t) 1 Wend. 175 ; Pattison v. Blanohard, 6 (t) Vice v. Anson, 7 B. & C. 409. See Barb. (S. C.) 537; Waland o. Elkins, 1 Lawler v. Kershaw, M. & M. 93. As to Stark. 272 ; Cobb v. Abbot, 14 Pick. 289.] what will constitute a party who has be- (q) 6 Bing. 776 ; and see Bourne v. come entitled to shares in a joint stock Preeth, 9 B. & C. 632; Dickinson v. banking company, by marriage or the like, Valpy, 10 B. & C. 128. a member of such company, within the 7 (r) See per Cur. Fox v. Clifton, 6 Bing. Geo. 4, c. 46, s. 13 ; Dodgson v. Bell, 5 776, 799. Exch. 967 ; Ness v. Armstrong, 4 Exch. (s) Per Parke B. Galvanized Iron Com- 21 ; Ness v. Angas, 3 Exch. 805. pany v. Westoby, 8 Exch. 17, 29. 326 CONTRACTS WITH PARTNERS. A., being as a partner entitled to a share of iron works, and of the premises in which they were carried on, agreed, for a valuable consideration, to assign to B. his interest in the property and busi- ness. B. interfered and acted as a partner, but afterwards he as- signed his share, and gave notice to the other partners that he had withdrawn from the business, and, when called on to complete his purchase, successfully resisted the performance of the contract, on • the ground that a good title could not be shown ; and it was held in equity that B., as between him and the other partners, was to be treated as a partner, and was liable to contribute to the part- nership losses, until the time when he gave notice of his withdrawal from the concern and assigned his share ; that his liability ceased from that period ; that the assignment of his share, though made to an insolvent person, was not for that reason the less effectual in putting an end to his liability ; and that the assignee, not having been acknowledged as a partner, or permitted to act as such, did not, by his acceptance of the assignment, incur any liability as be- tween himself and the copartners, (w) 2. As to what will constitute a partnership quoad third parties. What will 1st. " Traders," it is said, " become partners between partnership themselves by a mutual participation of profit and loss ; with regard ln^t, as to third persons, they are partners if they share sons. the profits of a concern ; for he who receives a share of the profits, receives a part of that fund upon which the creditors of the concern have a right to rely for payment ; and is therefore to be made liable to losses, although he may have expressly stipulated for exemption from them." (x) And upon this principle it has been (u) Jefferys o. Smith, 3 Russ. 158. [A Hickman, 8 H. L. Cas. 268, has a bearing partner may give another person an inter- upon this question.] est in his share, but cannot make him a (x) Per Tindal C. J. Pott v. Eyton, 3 partner unless accepted by the firm. Bray C. J. 32, 39 ; per Wilde C. J. Barry v. v. Fromart, 6 Madd. 5. On the question Nesham, lb. 641, 655 ; Waugh v. Carver, whether a sub-partner becomes, in conse- 2 H. Bl. 246; Grace v. Smith, 2 Bl. 1000 ; quence of that relation, liable for the Coope r. Eyre, 1 H. Bl. 43; Mclver v. general debts of the principal concern, see Humble, 16 East, 174 ; Cheap v. Cramond, Collyer Partn. § 194, and note ; Fitch v. 4 B. & Aid. 670 ; per Tindal C. J. Fox Harrington, 13 Gray, 468; Sir Charles v. Clifton, 6 Bing. 776, 795; [Collyer Raymond's case, 2 Rose, 241 ; Browne. De Partn. § 78 et seq. and notes; Hazard v. Tastet, Jac. 242 ; 3 Kent, 52 ; Fairholm v. Hazard, 1 Story, 371, 376 ; Churchman v. Majoribanks, 3 Ross C. L. 697 ; Lindley Smith, 6 Wheat. 146 ; Muzzy v. Whitney, Partn. 53; Poth. Partn. c. 5, §11, No. 10 John. 226 ; Pratt v. Langdon, 12 Allen 91. The decision in the case of Cox v. 544 ; S. C. 97 Mass. 97 ; Brigham v. Clark' CONTRACTS WITH PARTNERS. 327 held, that a man is equally liable whether he receive a share of th 100 Mass. 430. Individuals become liable as partners, quoad third persons, either by contracting the legal relation of partners, inter se, or by holding themselves out to the world as partners. Collyer Partn. § 78. See Cox v. Hickman, 8 H. L. Cas. 268. As between themselves persons are partners only upon the actual intention to contract that relation ; but as to the rest of the world, a partnership may arise by mere operation of law, and without the intention of the parties thereto. Hazard v. Hazard, I Story, 371. Where one person ad- vances funds to carry on a particular trade, and another gives his personal services, for which he is to receive a portion of the profits, there is a partnership existing be- tween them, both inter se and as to third persons. Dob v. Halsey, 16 John. 34; Everitt v. Chapman, 6 Conn. 347 ; Cham- pion v. Bostwick, 18 Wend. 175. This is on the principle, that he who takes a part of the profits indefinitely shall, by opera- tion of law, be made liable for the losses, inasmuch as he takes from the creditors a part of that fund which is the security for the payment of their debts. lb. ; Holt v. Kernodle, 1 Ired. (Law) 199 ; Cox u. Delano, 3 Dev. 89 ; Pott v. Eyton, 3 Man., Gr. & Scott, 32, 39. But see Cox v. Hick- man, 8 H. L. Cas. 268. The result of the authorities appears to be that, where two or more agree simply to enter into a trade or adventure, and to share the profits thereof, they will be partners in those profits; but that if one be a mere servant or agent in the concern, and receive his share of the profits in lieu of wages, then, as there is no mutuality between the par- ties, they are not partners. And the dis- tinction seems not to be unreasonable ; for if, on the one hand, it be said that A. and B. agree to divide the profits, and, on the other, that A. agrees to give B. one half or any other proportion of the profits as a remuneration for his trouble, these two modes of expression, though, in some aspects, apparently looking to the same results, yet in fact convey very different notions of the rights existing between the as a partner quoad third parties, e profits for his own benefit or as parties. In the former case, the natural inference is, that A. and B. have equal rights, in all that concerns the profits, though one only may possess the capital. In the latter case, the inference is, that A. has the sole control over the entire con- cern, subject to account to B. for his share of the profits. See Bartlett v. Jones, 2 Strobh. 471 ; Bartlett v. Sevy, lb. ; Dwi- nel v. Stone, 30 Maine, 384; Collyer Partn. § 39. Although then, if parties share the profits of a business they are prima facie liable to third persons as part- ners, yet if they have not held themselves out, or allowed themselves to be held out, as partners, they may repel the presump- tion of partnership by showing that the legal relation of partnership inter se does not exist. Collyer Partn. § 79-85. But see Waugh v. Carver, 2 H. Bl. 235 ; Hes- keth v. Blanchard, 4 East, 144. It is, however, difficult to reconcile all the cases upon any clear principle of distinction that has been adopted. The distinction taken by Lord Eldon, though said, in many cases, to be well established, and though generally admitted to be a correct state- ment of the law on this subject, is very far from furnishing a plain and simple test or clear line of division between those cases which have been decided to consti- tute partnerships, and those which have been held to fall short of it. That dis- tinction is " that if a man stipulates that, as the reward of his labor, he shall have, not a specific interest in the business, but a given sum of money even in proportion to a given quantum of the profits, that will not make him a partner, but if he agrees for a part of the profits, as such, giving him a right to an account, though having no property in the capital, he is as to third persons, a partner.'' Ex parte Hamper, 17 Vesey, 404, 412. Mr. Justice Story comments fully upon this in Partn. §§ 34, 36. See 3 Kent, 34; Cary on Partn. 11; Champion v. Bostwick, 18 Wend. 185; Denny v. Cabot, 6 Met. 90 ; Loomis .v. Marshall, 12 Conn. 69 ; Chase v. Barrett, 4 Paige, 148 ; Bradley v. White, 10 Met. 328 CONTRACTS WITH PARTNERS. trustee for another. So that, where an executor continued his testator's share in a firm, for the benefit of the infant child of the deceased, and carried the receipts of the business to the account of the infant, — taking no part of the profits himself, and not allowing his name to appear as one of the firm, • — ■ he was still held to be personally liable as a partner, to persons who became creditors of the firm after the testator's death, (jf) But in a modern case in the House of Lords it was suggested, that the right to share profits does not, per se, constitute one who claims that right, a partner as to third parties ; but only affords evi- dence, more or less conclusive, that the trade in which the profits were made, was carried on for or on behalf of the person setting up such a claim. (2) And in the case just referred to it was held, that where a trader assigned all his property and effects to trustees, upon trust, amongst other things, to carry on the business, and, out of the profits, to pay interest on mortgages, &c, and then to "pay and divide the net income of the business remaining, after answer- ing the purposes aforesaid, unto and among all and singular the cred- itors " of the trader, " in ratable proportions, according to the amount of their respective debts : " the creditors who executed the deed did not become liable, as partners thereunder, for debts contracted by the trustees in carrying on the trade, (a) But where there is a partnership quoad third parties, the liability of each partner to such parties will date from the term at which he was entitled to an account of the profits of the partnership busi- ness. (5) Nor, if there be a right to share the profits, is the effect of this diminished by its being agreed between the parties, that Communion J " & L of loss not each should bear his own losses, (c) Thus, where two necessary. 1 . ship agents agreed to reside near each other, and that 303; Clement v, Hadlock, 13 N. H. 185. S. 47; reversing Hickman a. Cox (in A contingent interest in the profits will Cam. Scac), 3 C. B. N. S. 522 ; and S. C. make a. man a partner pro tanto, though in C. P. 18 C. B. 617. Cox v. Hickman, he may have parted with every other inter- 8 H. L. Cas. 268. See, also, Kilshaw v. est as partner. Ex parte Wilson, Buck, Jukes, 3 B. & S. 847 ; Heap v. Dobson, 15 48.] C. B. N. S. 460; Bullen 0. Sharp, L. R. (y) Wightman v. Townroe, 1 M. & S. 1 C. P. 86. 412. (0) Gabriel v. Evil], 9 M. & W. 297 ; (z) See per Lord Cranworth and Lord Battley 0. Bailey, 1 Scott N. R. 143 ; Wensleydale, Wheatcroft ». Hickman, 9 Howell v. Brodie, 8 Scott, 372. C. B. N. S. 47, 92, 99. Cox u. Hickman, (c) Bond v, Pittard, 3 M. & W. 357. 8 H. L. Cas. 268. [This is on the ground, that he has entered (a) Wheatcroft v. Hickman, 9 C. B. N. into a legal contract or undertaking, CONTRACTS WITH PARTNERS. 329 each should allow to the other certain proportions of that other's commissions and profits, and of the discount on the bills of the tradesmen employed in the repairs of their respective ships ; but that each should bear his own losses : it was held that they were liable to third persons as partners. (c£) And so, in a subsequent case, (e) the court said that the principle was, that where two houses agree that each shall share with the other the money received in a certain part of their business, they are, as to such part, partners with regard to those who deal with them, though they may not be partners inter se. Nor will a man be the less liable to third parties as a partner, be- cause he is not entitled to anv definite share in the prof- *' Party n6Gu. its of the concern. And, therefore, where W. advanced not be entitled ,o j o 1 . i ■ i- .to a definite to S. and o., who were then carrying on business in share of the partnership, the sum of 24,000Z., and all three executed profits ' a deed by which a joint stock was created, but W. was not to have any definite proportion of profits, but was to have an account of the profits as between themselves, so as to get out of the clear profits 2,000Z. or 2,400/. a year, as the case might be : it was held, that although W.'s name never appeared to the world as a partner, yet he was liable as such. (/) In the ordinary case of contracts for goods sold and delivered, or for work and labor, or other implied contracts, a dor- Dormant mant partner (/*) is equally liable, when discovered, P artnera - with those who are held out to the world as partners, (g) And it which as between himself and the world Mitchell v. Dall, 2H.4 Gill, 159 ; Kelly- controls the stipulation. Consider Geddes v. Hurlburt, 5 Cowen, 534 ; Desha v. Hol- v. Wallace, 2 Bligh, 270; Gill v. Kuhn, 6 land, 12 Ala. 513 ; Goddard v. Pratt, 16 Serg. & R. 3.38; Jordan u. Wilkins, 3 Pick. 428, 429. Where a partner is actu- Wash. C. C. 115; Walden u. Sherburne, ally unknovm to the world, he is, more 15 John. 409.] strictly speaking, a secret partner. Collyer [d) Waugh v. Carver, 2 H. Bl. 235; Partn. § 4; U. S. Bank v. Binney, 5 Hesketh a. Blanchard, 4 East, 146; Ex Mason, 186; S. C. 5 Peters (U. S.), 529.] ■parte Hamper, 17 Ves. 412. (g) Per Tindal C. J. Beckham v. (e) Cheap u. Craraond, 4 B. & Aid. Knight, 5 Scott, 619, 635 ; and see Evans 663, 670 ; and see Smith >. Watson, 2 B. v. Drummond, 4 Esp. 89 ; Parkin v. Car- & C. 401. ruthers, 3 lb. 248 ; Lloyd v. Ashley, 2 C. (/) Ex parte Chuck, 8 Bing. 469. &P. 138 ; [Boardman v. Keeler, 2 Vt. 65 ; (f 1 ) [In the legal acceptation of the Etheridge v. Binney, 9 Pick. 272; Bank term dormant, as applied to partners in of TJ. S. v. Binney, 5 Mason, 187, 188; trade, every partner is considered dormant, Winship v. Bank of TJ. S. 5 Peters, 562, unless his name is mentioned in the firm, 563; Pitts v. Waugh, 4 Mass. 424, Graft or embraced under general terms, as the v. Hitchman, 5 Watts, 454 ; Lea v. name of one of the firm and company. Guice, 13 Sm. & M. 656 ; Robinson v. 330 CONTRACTS WITH PARTNERS. would seem that the same rule applies even to cases of express con- tracts, if they be not under seal, or by bill of exchange or promis- sory note ; (7&) it having been held that, where A., B., and C. were in partnership as type-founders, — C. being a dormant partner, — and A. and B. entered into a written agreement with the plaintiff, to employ him as foreman in the business for a certain term, and at certain wages; the plaintiff could maintain an action against A., B., and C. on this agreement, for a wrongful dismissal from their ser- vice ; although, at the time the agreement was entered into, the plaintiff did not know that C. was a partner, and although he was not named in and had not signed such agreement, (i) In the case of a partner retiring from a firm, and withdrawing Retiring his name therefrom, the distinction is, that he still re- partner, mains liable if he agree to receive, notwithstanding his secession, a share of the profits, as such, indefinitely ; but it is other- wise if he be merely entitled to a certain annuity, or fixed sum, not dependent upon, or payable according to the profits, but payable at all events ; and, in such a case, there is no objection to the outgo- ing partner relying upon the profits, merely as a fund for payment of the money secured to him. (/) Wilkinson, 3 Price, 538 ; Collyer Partn. the funds have been received by such dor- §§ 120, and note, 3S4, 536 ; Grosvenor v. man t partner. Mason v. Connell, lWhart. Lloyd, 1 Met. 19. It is now an undoubted 381; Wood r. Connell, 2 Whart. 542. and universal proposition, that a dormant The law relative to dormant partners partner is liable in all cases for the con- seems to be confined to trade and corn- tracts of the firm during the time that he merce, and does not extend to speculations is actually a partner. Hubert v. Nelson, in the purchase and sale of land. See Davies B. L. 8 ; Wintle ■;. Crowther, 1 Pitts v. Waugh, 4 Mass. 424 ; Smith v. C. & Jer. 316; U. S. Bank v. Binney, Burnham, 3 Sumner, 435, 470; 3 Kent, 5 Mason, 176; Etheridge v, Binney, 9 31, note (a).] Creditors are not obliged Pick. 272 ; Winship v. Bank of U. S. 5 to sue dormant partners. De Mautort v. Peters, 529; Collyer Partn. 384. Where Saunders, 1 B. & Ad. 398. Generally a two partners, one ostensible, the other dormant partner may sue. Cothay v. Pen- dormant, agreed, by private articles of co- nell, 10 B. & C. 671 ; but where a con- partnership, to transact business in the tract was made with one partner, and he name of the ostensible partner, Nathan represented that he alone was interested in Smith, but the business was carried on in the subject-matter thereof: it was held the name of 2V. Smith : held, in an action that his copartners could not be joined with against the partners, on a contract made in him in an action thereon. Lucas v. De la the name of N. Smith, that to avail them- Courj 1 M. & S. 249. selves of this objection, the defendants (A) Per Parke B. Beckham v. Drake, 9 must plead it in abatement. Mifflin o. M. &W. 79, 96. Smith, 17 Serg. &R. 165. The liability of (?) Drake v. Beckham, 11 M. & W. 315 a dormant partner to creditors may be (in error) ; S. C. 9 M. & W. 7(J ; over- avoided by proof of actual fraud in the for- ruling Beckham v. Knight, supra. mation of the partnership, if no part of (j ) Waugh v. Carver, 2 H. Bl. 247 ; CONTRACTS WITH PARTNERS. 331 A nominal partner is one who, without having an actual interest in the profits of a concern, or being in reality a partner, Nominal allows his name to be used, or agrees that it shall be con- P altner - tinued therein as a partner ; and the rule is, that such a person is clearly liable as a partner, on all transactions in which third parties engage with, or give credit to the firm on the faith of bis being a partner. (&) [This rule has no reference to the real transaction or understanding between the parties themselves, but is founded on principles of general policy and expediency, and has in view the prevention of the frauds and inconveniences to which creditors would be exposed, were parties allowed with impunity to afford to others the means of assuming a false appearance of credit and re- sponsibility.] (/c 1 ) So, a mere representation by one person that he Grace v. Smith, 2 Bl. 998 ; Ex parte Ham- per, 17 Ves. 404 ; Ex parte Rowlandson, 1 Rose Bk. C. 91. See Withington ;;. Herring, 5 Bing. 442. (k) Per Parke J. Dickinson v. Valpy, 10 B. & C. 128, 141 ; Waugh v. Carver, 2 H. Bl. 235, 246; M'lver v. Humble, 16 East, 169, 174 ; Smith v. Watson, 2 B. & C. 401, 411 ; [Stearns u. Haven, 14 Vt. 540 ; 3 Kent, 32, 33 ; Benedict v. Davis, 2 McLean, 347; Collyer Partn. § 86 et seq.] Generally a nominal partner need not be joined as co-plaintiff, in an action on a contract made in the name of the firm. Kell v . Nainby, 10 B. & C. 20. But if a bill of exchange be made in the name of the firm, the nominal partner must be joined in an action thereon. Guidon v. Robson, 2 Camp. 302. (fc 1 ) [See 3 Kent, 32, 33; Purviance v. M'Clintee, 6 Serg. & R. 259 ; Gill v. Kuhn, 6 Serg. & R. 333 ; Dob v. Halsey, 16 John. 40; Shubrick v. Fisher, 2 De- saus. 148; Osborne ;;. Brennan, 2 Nott & McC. 427. If a person be charged as a nominal partner, evidence of lending his name to the firm cannot be rebutted by showing that he had no interest as a part- ner. Collyer Partn. § 96. If, however, there be a partnership as to third persons, the presumption of the law is that there is a, partnership between the parties, lb, ; per Lord Ellenborough, Peacock v. Pea- cock, 2 Camp. 25, The term "holding one's self out as partner " imports at least the voluntary act of the party so holding himself out ; for else he might in- cur a painful responsibility through the fraud or the rashness of others. Collyer Partn. § 97. No particular mode of hold- ing one's self out is requisite. If a man do acts, of whatever kind, sufficient to in- duce others to believe him a partner, he will be liable as such. Buckingham u . Burgess, 3 McLean, 364, 549 ; Leavitt v. Peck, 3 Conn. 324. Slight circumstances are sometimes found sufficient to satisfy a jury that a person has held himeelf out to the world as a partner. Parker v. Barker, 1 B. & B. 9 ; 3 -Moore, 226 ; Collyer Partn. § 89. But the mere fact that per- sons have given a. joint order for goods will not make them jointly liable as part- ners, if it appear upon the whole of the transaction that the seller intended to ac- cept their several responsibility only. Collyer Partn. § 91 ; Gibson v. Lupton, 9 Bing. 297. The fact that two persons sign a note jointly has been held not to prove a partnership between them. Hop- kins v. Smith, 11 John. 161. But as to the case where two persons draw a bill of exchange, see Carvick v. Vickary, Doug. 653, note ; De Berkom v. Smith, 1 Esp. 29 ; 3 Kent, 30, and note. A stipulation that a firm shall be governed by a person's advice does not constitute that person a partner. Barklie v, Scott, 1 Huds, & 332 CONTRACTS WITH PAETNEES. is partner with another, will render him responsible as a partner, to a creditor who furnished goods to both on the faith of such repre- sentation. (/) And it has been said, that a nominal partner will be liable, even although the plaintiff did not, at the time of the deal- ing, know that he was a partner, or that his name was so used, (to) But this latter position, it has been well observed, appears very questionable ; inasmuch as the reason of the rule which imposes on a nominal partner the responsibilities of a real one, does not apply where the person who deals with the firm has never heard of the nominal partner as a component part of it. (w) It has, however, been held, that where parties have notice that it Not liabi t ^ as b een agreed between two persons, who appear to the parties who world as partners, that one of them shall not participate have notice. . * Tin v m the profits and losses, and shall not be liable as a partner, such person is not liable to those who have such notice, (o) Infant part- And if an infant partner do not, on coming of age, repudiate the partnership, he will be liable on the sub- sequent contracts of the firm. (^>) 2d. But there is no liability as a partner where there is neither a Party not participation of profits, nor any use made of the party's liable as a name to obtain credit ; although there mav be to a cer- partner, & merely be- tain extent a community of interest. Thus, where a bro- cause there is . "■ 1 ^ . a community ker, who was employed by several persons to purchase tea, of which he and his employers were to have sepa- rate shares, borrowed money upon the security of the tea warrant, without the knowledge of his employers, it was held that they were Bro. 83. So the facts, that several persons (») 1 Smith L. C. 507. associated together to run a line of stage (o) Aldcrson v. Pope, 1 Camp. 404, note ; coaches, that they had a general meeting, Batty v. M'Cundie, 3 C. & P. 202 ; [Wright and that debts were contracted on account v. Powell, S Ala. 560 ; Markham v. Jones, of the company, do not prove a partnership 7 B. Mon. 456. In reference to the effect as between them. Chandler v. Brainard, of knowledge by third persons, seeking 14 Pick. 285; Clark v. Eeed, 11 Pick, to charge parties as partners, of the agree- 446. See Smith v. Edwards, 2 H. & Gill, ment, under which they are associated to- 411.] gether, see Denny v. Cabot, 6 Met. 93, 94 ; (I) De Bevkom v. Smith, 1 Esp. 29. Livingston v. Koosevelt, 4 John. 151; And see Harvey v. Kay, 9 B. & C. 356. Boardman v. Gore, 15 Mass. 339 ; Gram (»n) Per Lord Mansfield, Young v. Ax- v. Caldwell, 5 Cowen, 489 ; Bailey v. tell, cited 2 H. Bl. 242 ; [Johnston v. Clark, 6 Pick. 372.] Warden, 3 Watts, 39; Collyer Partn. § (p) Goode v. Harrison, 5 B. & Aid. 86, and note.] 147. CONTRACTS WITH PARTNERS. 338 not liable to the lender. Qq') And upon the same principle, it has been held that a purchase by one of several parties, on an agree- ment between them that each shall have a distinct share of the whole without any communion of profit, does not create a partner- ship between them, so as to render them jointly liable to third per- sons, (r) Again : if the members of a partnership enter into a contract, and afterwards admit another member into the firm, the T . . .... , ' _ Liability of fact of such other member thus acquiring an interest in partner ad- , , . „ , i i , • mitted sub " the subject-matter ot the contract, does not make him a quentiyto party thereto, or liable thereon, (s) And so, where a banking firm made payments, professedly on behalf of a customer, but without his authority ; and the sums so paid were entered to his debit in the books of the firm, and afterwards new partners were admitted ; it was held that the new firm was not liable to the cus- tomer for such payments, — there having been no agreement be- tween the old firm, the new firm, and the customer, that the new firm was to be substituted as debtor, in lieu of the old. (t~) If several persons agree upon an adventure, and each is to furnish a certain proportion of goods for the same, the whole Co-adven- of such adventurers are not liable, jointly, for the share turers - of each ; but each is liable, individually, to the party who supplied his share ; and no partnership arises as to the goods till they are mixed in a common stock, (w) Thus where it appeared that the proprietors of a stage-coach divided a road into different stages, and were severally the owners of the horses and harness by which the coach was worked through their respective stages, and severally provided stabling, food, and horse-keepers, on those stages ; and that the profits were divided in proportion to the number of miles for which they respectively horsed the coach ; and there was no evidence that purchases made by the separate proprietors were, upon the general adjustment of accounts, computed as part of the general outgoings ; a vendor, by whom goods were delivered to one of the proprietors for the use of his horses, was held entitled to recover only from the proprietor with (?) Hoare v. Dawes, Dougl. 371. see Vere v. Ashby, 10 B. & C. 288 ; Young (r) Coope v. Eyre, 1 H. Bl. 37, 45 ; 2 v. Hunter, 4 Taunt. 583. lb. 234. See Cothay u. Fennell, 10 B. & (t) Crawfurd v. Cocks, 6 Exch. 287. q 57! (u) Saville v. Robertson, 4 T. R. 720. (s) Beale v. Mouls, 10 Q. B. 976 ; and 334 CONTRACTS WITH PARTNERS. whom he had immediately dealt, (x) And the reason of this and similar decisions has been stated to be, not the fact of its being no- torious that each proprietor did, in fact, work the coach with his own horses ; but that the true construction of an agreement among several, to carry on such an adventure is, that each is authorized by the others to contract for the materials to be used by him in such adventure, only on his own account. («/) But where the agreement is for a joint purchase for the ad- venture, the joint interest and partnership commence, and the joint responsibility attaches, immediately the goods are bought, (z) There are also various transactions, by virtue whereof which a a party may receive a portion of the profits of an ad- recelvTci 7 venture, without becoming liable as a partner, he not Drofits°with- being 01ie i n reality, or acting in that character. Thus out becoming jt nas b ee n held, that the receipt of a percentage on a partner. ' , r . , the gross amount of sales made to certain customers, by the person who recommends such customers, does not make him a partner as to third persons, (a) And so it is where remuneration is made to a traveller, or to a clerk or other agent, by a portion of the sums received by or for his master or principal, in lieu of a fixed salary, (a 1 ) this being only a mode of payment adopted to in- crease or secure exertion ; (6) or in the case of a factor, who re- ceives for his commission a percentage on the price of the goods sold by him, instead of a certain sum proportioned to the quantity of goods so sold, (c) (x) Barton v. Hanson, 2 Taunt. 49 ; benefit, and a part of the outward cargo overruling C. B. M'Donald's decision, in was purchased by each separately, and 2 Camp. 97. part by both jointly ; it was held, that they (y) See Per Parke B. Wilson v. White- were still but tenants in common of the head, 10 M. & W. 503, 504. property, and not partners; and that (z) Gouthwaite v. Duckworth, 12 East, therefore a creditor of both owners for 421; Smith v. Watson, 2 B. & C. 401. cordage for the vessel, was not entitled to See, also, Gardiner v. Childs, 8 C. & P. priority in payment out of the vessel and 345; [Campbell v. Calhoun, 1 Penn. 140; cargo, against the separate creditors of Collyer Farm. § 512. Though the pur- either. Harding v. Foxcroft, 6 Greenl. chase be on separate, and not on joint 76; Collyer Partn. § 515.] account, yet if the interests of the pur- (a) Pott i>. Eyton, 3 C. B. 32 ; and see chasers are afterwards mingled, with a Cheap v. Cramond, 4 B. & Aid. 663, 670 ; view to a joint sale, a partnership exists [Collyer Partn. § 35, note.] from the time that the shares are brought (a 1 ) [Collyer Partn. § 44, note.] into a common mass. 3 Kent, 26 ; Sims (fc) Benjamin v. Porteus, 2 H. Bl. 590; v. Willing, 8 S. & P.. 103; Brooks u. Meyer v. Sharp, 5 Taunt. 74; Ex parte Evans, 5 Watts, 196. Where two, being Hamper, 17 Ves. 404 ; Cheap v. Cramond, ioint owners of a vessel, agreed to send 4 B. & Aid. 663, 670. her on a foreign voyage for their mutual (c) Qixon v. Cooper, 3 Wils. 40. CONTRACTS WITH PARTNERS. 335 So, if the proprietor of a lighter agree with the person who works it, that, in consideration of his labor, he shall receive half the gross earnings, there is no joint liability. (d~) Nor does a part- nership arise, on an agreement between the owner of cattle and the occupier of land, that the cattle shall be pastured upon the land, and that, after they are fatted above a certain value at which they are estimated, the profit shall be equally divided between the proprietor of the cattle and the landowner ; such transaction being merely a mode of paying for the pasture, (e) But an agreement between a merchant and a broker, that the latter should purchase goods for the former, and should receive for his trouble, in lieu of brokerage, a certain proportion of the profits arising from the sale, and should bear a proportion of the losses, may render the broker liable to third persons as a partner ; because, although such an agreement does not vest in the broker any share in the property so purchased, or in the proceeds thereof, he is entitled thereunder to an account of the profits. (/) 3d. And now, by the 28 & 29 Vict. c. 86, it is enacted as follows : . , „ , „ . Provisions of 1. lhat the advance ot money by way or Joan, to a the 28 & 29 a 1, ♦ * • * 1 Vict. c. 86. person engaged or about to engage m any trade or un- dertaking, upon a contract in writing with such person, that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on such trade or undertaking, shall not, of itself, constitute the lender a partner with the person or persons carrying on such trade or under- taking, or render him responsible as such. 2. That no contract for the remuneration of a servant or agent o of any person engaged in any trade or undertaking, by a share of the profits of such trade or undertaking, shall, of itself, render such servant or agent responsible as a partner therein, nor give him the vigh ts of a partner. 3. That no person being the widow or child of the deceased partner of a trader, and receiving by way of annuity a portion of (d) Dry v. Boswell, 1 Camp. 329. [See the farm let to the tenant will not create Collyer Partn. § 35, and note.] a partnership. Perine u. Hankinson, 6 (e) Dry v. Boswell, 331, note. [An Halst. 181.] agreement between a landlord and his ten- (/) Smith v. Watson, 2 B. & C. 401 ; ant that the landlord shall receive one and see Smith's M. L. (5th ed.) 21 ; Beid half or any other portion of the profits of 0. Hollinshead, 4 B. & C. 867. 336 CONTRACTS WITH PARTNERS. the profits made by such trader in his business, shall, by reason only of such receipt, be deemed to be a partner of, or to be subject to any liabilities incurred by such trader. And, 4. That no person receiving, by way of annuity or otherwise, a portion of the profits of any business, in consideration of the sale by him of the goodwill of such business, shall, by reason only of such receipt, be deemed to be a partner of, or be subject to the liabilities of the person carrying on such business. 4th. With reference to the liability of the subscribers to, or . members of unincorporated companies, to the creditors of Liability of l 1 members of such companies, the rule would seem to be, that if the rated com- company be complete, and the subscriber or member has pames. actually acquired a right to a share of the profits, he is responsible to third persons as a partner ; but that, where no regular company has been actually and definitely formed so that, in reality, no partnership exists, a subscriber is not responsible to third parties, unless he has either actually made or authorized the making of the particular contract upon which he is charged ; or has so interfered in the affairs of the concern, as to hold himself out to the public, and, amongst others, to the plaintiff, as a partner therein. () So it has been decided, that if a party at- tend, in the character of a shareholder, a meeting of the members of a joint stock company, that is sufficient primd facie evidence to charge him with an engagement, entered into by a majority of the shareholders at a subsequent meeting which he does not attend, (j) And, in general, wherever the court are of opinion that there was sufficient evidence from which the jury might infer, either that the defendant was actually a partner in the concern at the time the contract was made ; (r) or that, although there was then no part- nership in fact, he held himself out as the contracting party in the particular instance, he will be liable, (s) But where, in an action against the defendant, — charging him as a partner in a cost-book mining company, on a contract made with the company, — it was proved that, according to the rules of the company, a formal instrument of transfer was not effectual to pass an interest in the concern to the transferee, until such instru- ment had been duly registered by the secretary or purser; it was held that, until such registration took place, the transferee took no benefit and incurred no liability as a partner, (t) So it was held that, the mere fact of a person having consented to the insertion of his name in the prospectus, as a provisional com- mittee-man, did not render him liable on the contracts entered into by or on behalf of such committee, unless the prospectus con- tained an engagement by the committee to pay expenses, or some- thing equivalent thereto, (w) And that a member of a provisional committee, who first took part in the affairs of a company, so as to make himself individually liable on a given day, did not thereby make himself liable for services performed for the company after that day, on an order given before it. (x) So it is clear that the unauthorized act of the secretary of an intended company, in inserting the name of a subscriber in a list of (n) Dickinson v. Valpy, 10 B. & C. (r) Beech v. Eyre, 5 M. & G. 415. 128; Fox v. Clifton, 6 Bing. 776; 9 lb. (s) Lake v. Duke of Argyll, 6 Q. B. 115; Maudslay v. Le Blanc, 2 C. & P. 477. 409. (t) Thomas v. Clark, 18 C. B. 662. (o) Doubleday v. Muskett, 7 Bing. 110; (u) Bailey v. Macaulay, 13 Q. B. 815, Nockells v. Crosby, 3 B. & C. 814. 825. And see Burbidge v. Morris, 3 H. & (p) Keasley v. Codd, 2 C. & P. 408. C. 664. (?) Harrison a. Heathorn, 6 M. & G. (x) Newton v. Belcher, 12 Q. B. 921. 81. vol. i* 22 338 CONTRACTS WITH PARTNERS. subscribers, is not sufficient to render such subscriber liable, as a partner, to third persons, (j/) And it has likewise been held, that a party who merely assents to his name being published, in a list of the provisional committee of a projected railway company, does not thereby impliedly authorize the secretary, or any one else, to pledge his credit for goods supplied to or work clone for the com- pany, (z) Where, however, there is evidence that such a party has acted in relation to the proposed scheme, it is for the jury to say, whether, by so doing, he has authorized the solicitor or secretary, or any member of the committee, to pledge his credit for the necessary and ordinary expenses to be incurred in the formation of the com- pany ; and if so, whether the work was done or the credit given on the faith of his being liable, (a) But where it appeared that the defendant was, by his consent, a member of the provisional committee of a projected railway com- pany ; that, according to the prospectus, the affairs of the company were to be under the control of a managing committee ; that a man- aging committee had been appointed, and that, thereupon, the pro- visional committee had ceased to act ; that, after this, the solicitor of the company, who had been appointed by the provisional commit- tee, gave orders for the publication of advertisements ; and that the defendant had twice attended meetings of the provisional committee, but that he was not on the managing committee, nor a shareholder : it was held, that these facts constituted no evidence for a jury, of the defendant having authorized the insertion of the advertise- ments, nor of his liability. (5) And so, where it appeared that a prospectus had been issued for the formation of a company, which prospectus imported only that the company was to be formed, not that it was actually formed : it was held that the defendant, who had subscribed his name to this prospectus, and who was present at a meeting of subscribers, when it was proposed to take certain premises, — which were afterwards taken, — for the purpose of carrying on the business of the company, and who had solicited others to become shareholders, but had never paid his subscription, (y) Fox u. Clifton, 6 Bing. 776, 794. kins, 15 M. & W. 517, 519; and see per (z) Barkers. Stead, 3 C. B. 946; Eey- Cur. Bailey u. Macaulay, 13 Q. B. 815, noil v. Lewis and Wyld v. Hopkins, 15 M. 825 ; Williams v. Pigott, 2 Exch. 201 ; and & W. 517, 519 ; and see Williams u. per Alderson B. Barnett v. Lambert, 15 Pigott, 2 Exch. 201 ; Kcnnie a. Wynn, 4 M. & W. 489, 493. Exch. 691, 697. (6) Cooke v. Tonkin, 9 Q. B. 936. (a) Reynell v. Lewis and Wyld v. Hop- CONTRACTS WITH PARTNERS. 339 or interfered in other respects than as above mentioned, was not chargeable as a partner for goods sold to the company, (c) Where, however, a man is a complete partner with the directors of a joint stock company, he is liable on all contracts How far a which are necessary for carrying on the partnership, or partner ?n which are usually exercised by partners in that business ™„yf 8 ]f™" in which they are engaged ; and any restriction which, tie. by agreement amongst the partners, is attempted to be imposed upon the authority which one possesses as the general agent for the others, is operative only as between the partners themselves ; and does not affect third persons who acquire rights by its exercise, un- less they know that such restriction has been made. (cT) 5th. By the 25 & 26 Vict. c. 89, s. 6, seven or more persons associated for any lawful purpose may, by subscribing , . J ip • ■ ii Partnerships their names to a memorandum or association, and other- with limited wise complying with the requisites of that act in respect of registration, form an incorporated company, with or without limited liability, (e) And by s. 7 of the same statute it is enacted : that the liability of the members of a company formed under that act may, accord- ing to the memorandum of association, be limited either to the amount, if any, unpaid on the shares respectively held by them ; or to such amount as the members may respectively undertake, by the memorandum of association, to contribute to the assets of the asso- ciation in the event of its being wound up. 2. Right of one Partner to sue another at Law. 1. It is a clear general rule, that one partner cannot sue his co- partner at law in respect of the partnership accounts, or of anv other matter connected with the partnership one partner . , , , „ ■ i- i cannot sue transactions ; whether the nrm exist tor general pur- another at poses, or have reference only to a particular trade or branch thereof. (/) Nor can such a partnership claim become the (c) Bourne v. Freeth, 9 B. & C. 632. (e) This act applies to partnerships (d) Hawken v. Bourne, 8 M. & W. 703, formed after the 2d Nov. 1862. As to 710; and see Tredwen v. Bourne, 6' M. & partnerships with limited liability, formed W. 461. For the rule with regard to the before that date, see 19 & 20 Viet. c. 47, s. liability of the members of a club, see 3 ; and 20 & 21 Vict. c. 14, s. 3. Todd v. Emly, 8 M. & W. 505 ; S. C. 7 (/) Smith a. Harrow, 2 T. R. 478 ; M. & W. 427, and JFIemyng v. Hector, 2 Mainwaring v. Newman, 2 B. & P. 124; M. & W. 172. Hesketh v. Blanchard, 4 East, 144 ; Holmes 340 CONTRACTS WITH PARTNERS. subject of a set-off; () it ap- peared that a member of a joint stock company, who was employed by the company as their agent to sell goods for them, received a commission of two per cent, for his trouble, and one per cent, del credere for guarantying the purchaser. Having sold goods on ac- count of the company, he drew on the purchaser a bill of exchange, payable to his, the drawer's, own order ; and, after it had been accepted, he indorsed it to the actuary of the company, and the v. Higgins, 1 B. & C. 74 ; Teague v. Hub- have been received and paid by one part- bard, 8 lb. 345. But this rule does not ner. lb. hold, unless a partnership has been actually (i) Harvey v. Kay, 9 B. & C. 356. formed. Nockells u. Crosby, 3 B. & C. (k) lb. ; Perring v. Hone, 4 Bing. 28. 8L4; Wilkinson i>. Frasier, 4 Esp. 182; (I) Wilson v. Viscount Curzon, 15 M. Hesketh v. Blanchard, 4 East, 144. An & W. 532; Holmes v. Higgins, 1 B. & action lies for not supplying MS. for a C. 74; and see Parkin c. Fry, 2 C. & work, though the parties were to share P. 311. profits. Gale v. Leckie, 2 Stark. 107. (m) Goddard v. Hodges, 1 C. & SI. 33. [See Ellison v. Chapman, 7 Blackf. 224; (in 1 ) [See Bcvans v. Sullivan, 4 Gill, Vance v. Blair, 18 Ohio, 532.] By the 9 383; Chase v. Garvin, 19 Maine, 211; & 10 Vict. c. 95, s. 65, the county courts Davenport u. Gear, 2 Scam. 495; Chad- have jurisdiction, although the sum sought sey K.Harrison, 11 111. 151: Causten v. to be recovered, — if within the amount Burke, 2 H. & Gill, 295; Chandler t>. recoverable in those courts, — consists Chandler, 4 Pick. 78 ; Brinley v. Kupfer, wholly, or in part, of the unliquidated 6 Pick. 179; Johnson v. Ames, 6 Pick, balance of a partnership account. 330 ; Haskell v. Adams, 7 Pick. 59 ; Hen- (. Ellis, 7 M. & G. 607 ; and 577. But ifapartner borrows money on his see 2 C. B. 821. 348 CONTRACTS WITH PARTNERS. tention of cheating the other, purchases articles such as might be ■p a f used in the partnership business, but which he instantly, partner on by pawning, converts to his own use ; this, if there were the others. J ' . . . no collusion between him and the seller, will be consid- ered a partnership transaction, and the innocent partner will be liable for the price, without proof of any previous dealings between the parties. (2) So, where the books of certain bankers, who were employed to receive dividends from the funds, credited their em- ployer with the dividends as received, and they had allowed him to draw without having any other funds in their hands : it was held by Best C. J. that the bankers were bound by the entries so made, though they were fraudulently made by one of the partners, the money never having been received by the house, (a) And where the plaintiff, being entitled to a fund in court, gave to B. and S., a firm of solicitors who had acted for him in the matter, a joint and several power of attorney to receive the money, and sent the power to B., one of the partners, who received the money and signed the receipt in his own name ; but B. paid the money into his own private banking account, and shortly afterwards absconded with it : it was held, that the money must be treated as having come into the hands of the firm in the course of their business as solicitors, and that S. was liable to repay it with interest. (F) (z) Bond v. Gibson, 1 Camp. 185. other wrongs committed in reference to (a) Hume v. Bolland, 1 E. & M. 371 ; the partnership business by his copartner, and see Marsh v. Keating, 1 Scott, 5. As where a partner injures a third person, But see Hume ;;. Bolland, 1 C. & M. 1.30; by his negligent driving of a coach, the Shaw v. Dartnall, 6 B. & C. 65 ; Shaw v. property of the firm and employed in their Woodcock, 7 lb. 73. [One partner will business. In an action of trover against a be bound by the fraud of his copartner, in firm, a demand of, and a refusal by, one contracts relating to the partnership, made partner, to deliver up the property of the with innocent third persons. See Locke plaintiff, is evidence of a conversion by v. Stearns, 1 Met. 564 ; Story Partn. § both. Collyer Partn. §§ 457, 458 ; Mitch- 108; Collyer Partn. § 445 el seq. ; Blight ell v. Williams, 4 Hill (N. Y.),13; Hol- v. Tobin, 7 Mon. 617 ; Patten v. Gurney, brook v. Wright, 24 Wend. 169; Nesbit 17 Mass. 182; Hawkins u. Appleby, 2 v. Patton, 4 Rawle, 120. A partnership Sand. 421 ; Stockton v. Frey, 4 Gill, 406 ; security negotiated through the fraud of Babcock v. Stone, 3 McLean, 172 ; Board- one of the partners is nevertheless binding man v. Gore, 15 Mass. 3.31 ; Man. & Mech. on the firm, in the hand of an indorsee for Bank u. Gore, 15 Mass. 75; Hadfield v. a valuable consideration without notice of Jameson, 2 Munf. 53 ; Nesbit v. Patton, 4 the fraud. Collyer Partn. § 447, and Rawle, 120 ; McFarland v. Crary, 8 Cowen, American cases cited in note.] 25.3 ; Doremus o. MeCormick, 7 Gill, 49. (6) St. Aubyn v. Smart, L. Rep. 5 Eq. So, one partner may be made liable for 183; 3 Ch. Ap. 646. CONTRACTS WITH PARTNERS. 349 2. But one partner communicates to another, as incident to that relationship, such authority only as is usually exercised One partner by partners in the same sort of trade, and no more, (c) others'miy 6 And accordingly it is held, that one of two attorneys „[ u e a ^uth.or? who are in partnership, has no implied authority to bind ities - his partner by a note made in the name of the firm, although such note be given for their joint debt; (cT) or by giving a post-dated check, (e) Nor can one of two attorneys who'are in partnership, bind the others by acting as a scrivener. (/) And so, one partner in a joint stock company has no implied au- thority to draw or accept bills, so as to bind the company, (jf) But it would appear, that an authority to the directors of a joint- stock company, to issue bills or notes, is not to be very strictly con- strued. And accordingly where, by the deed of settlement of such a company, the board of directors were authorized to issue, on behalf of the company, " a promissory note," or " a bill of exchange," for a sum not exceeding 1,000/. : it was held, that the substance of this authority was, that the directors — having contracted a debt to the amount of 1,000/. — might give securitv for it with its legal accre- tions, by several notes or bills, instead of by a single one. (A) It was formerly a question of some doubt, how far one partner could bind the firm by signing, in the name of the firm, but with- (c) Per Cur. Brcttel u. Williams, 4 v. Winship, 5 Pick. 11 ; U. S. Bank v. Exch. 623, 630. [In an action against Binney, 5 Mason, 176; S. C. 5 Peters, a firm, on a note made by one partner in 529 ; Etheridge v. Binney, 9 Pick. 272.] the partnership name, it is not incumbent (d) Hedley v. Bainbridge, 3 Q. B. 316. on the plaintiff, in the first instance, to [An attorney has no general authority to show that the note was given for a part- obtain loans on the credit of a firm of nersliip transaction. Waldo Bank u. which he is a member, resulting from the Greely, 16 Maine, 419 ; Vallett v. Parker, nature of the profession. Breckunridge v. 6 Wend. 615 ; Foster v. Andrews, 2 Penn. Shrieve, 4 Dana, 378.] 160. That it was given for the indi- (c) Foster v. Mackreth, L. Bep. 2 Ex. vidual debt of one of the partners, is 163. matter of defence. Doty v. Bates, 11 (/) Harman v. Johnson, 2 E. & B. 61 ; John. 544. And the same is true, al- Bourdillon v. Roche, 27 L. J. C. 681. though the partnership is limited to a, (g) Per Parke B. Ridley v . Plymouth particular branch of business. Barrett Grinding Co. 2 Exch. 711, 716 ; Steele v. v. Swann, 17 Maine, 180. See Bank of Harmer, 14 M. & W. 831 ; Bramah a. U. S. v. Binney, 5 Mason, 176 ; Ensmin- Roberts, 5 Scott, 172 ; Dickinson;;. Valpy, ger v. Marvin, 5 Blackf. 210; Holmes v. 10 B. & C. 128; Greenslade r. Dower, 7 Porter, 39 Maine, 159. This rule is, how- lb. 365. [See Tappan v. Bailey, 4 Met. ever, confined to cases where the signature 529 ; Collyer Partn. § 1139.] or other circumstances indicate a partner- (h) Thompson a. Wesleyan Newspaper ship transaction. Manuf. & Mech. Bank Association, 8 C. B. 849, 861. . 350 CONTRACTS WITH PARTNERS. out their knowledge, a guaranty for the debt of a third person. How far a Lord Mansfield is reported to have said: "• that if one guaranty given by one partner in the name of the firm binds the firm. give a guaranty in the name of all the partners, it binds all : " (i) and it would seem, from the case of Ex parte Gardom, (Jt) that Lord Eldon was of the same opinion ; but the point did not undergo much investigation in that case. On the other hand, in a case before Lord Ellenborough at nisi prius, (£) where it appeared that one of two partners had signed a guaranty in the name of the firm, his lordship held, that " as it was not usual for merchants in the common course of busi- ness to give collateral engagements of that sort, the plaintiff should prove that the partner signing had authority from his copartner to sign the partnership firm to the guaranty." And this is now rec- ognized as the true rule on this subject. Thus, in a modern case, where one of two attorneys, who were in partnership, signed in the name of the firm an undertaking to pay the debt and costs in an action, in consideration of the defendant being discharged out of custody : it was held that such undertaking did not bind the firm ; it not being a transaction in the usual course of the business of at- torneys, and there being no evidence that the guaranty was given in pursuance of the ordinary practice of the parties. (?») And the same rule has since been acted on ha other cases, (ji) (i) See Hope v Cust, cited 1 East, 53. (k) 15 Ves.jun. 286. (/) Duncan v. Lowndes, 3 Camp. 481. (m) Hasleham r. Young, 5 Q. B. 831. (n) Brettel v. Williams, 4 Excli. 623. [And where there is an authority in a partner to sign a guaranty for the firm, either by special agreement or otherwise, still, to bind the firm, it must have refer- ence to the regular course of the partner- ship business, and it must be confined to Baker, 7 Harr. & J. 28 ; Mayberry v. Bar- niton, 2 Harring. 24 ; Maudlin v. Branch Bank, 2 Ala. 502. And one partner can- not bind the firm, as a mere surety for a third person, in a matter in which the firm has no interest, and where it is not in the regular course of the business of the firm, except under conditions and limita- tions similar to those which restrain him in the case of a guaranty. Foot v. Sabin, 19 John. 154 ; Laverty v. Burr, 1 Wend. advances made on credit given to the part- 531 ; New York Fire Ins. Co. u. Bennett, nership as constituted at the time of the 5 Conn. 574 ; Andrews v. Planters' Bank, guaranty. It cannot be extended to new advances or credits, after a change of any of the original partners by death or retire- ment. Collyer Partn. § 421, and notes; Story Partn. § 127, and note; 3 Kent, 46, 47 ; Long v. Carter, 3 Ired. (Law) 241 ; Sutton v. Irwine, 12 Scrg. & K. 13 ; Hamill v. Pun is, 2 Penn. 177; Crcmcr v. Hig- ginson, 1 Mason, 323, 335, 336 ; Wag- non v. Clay, 1 Marsh. 257 ; Coursey v. 7 Sm. & M. 192 ; Sweetser u, French, 2 Cush. 314, 315; Langan c. Hewett, 13 Sm. & M. 122; Rollins c. Stevens, 31 Maine, 454. So one partner cannot give the name of the firm on accommodation paper, unless with the knowledge of the firm, or unless it be the habit of the part- ner, with the consent of the firm, or unless the transaction is subsequently ratified by the firm. Bank of Tennessee o. Laffarans, CONTRACTS WITH PARTNERS. 351 But it would be sufficient to prove a parol acknowledgment from the other partner, subsequently to the guaranty, that it was prop- erly given ; (o) or to show a previous course of dealing, in which similar guaranties had been given in the name of the firm, with the privity of both partners; (p) or that the guaranty was given in the course of, and as incidental to a transaction falling within the ordinary course of the business of the firm ; and that it was notified to the other partners, who expressed no dissent, (q) It is also now well decided, that one of several partners has no implied authority to bind the others -by a submission to „ i*-, ..„,„,. One partner arbitration, even as to matters arising out 01 the aftairs cannot bind of the firm ; the entering into such submission being submissionto held to be no part of the ordinary business of a trading arbltratl0n ; partnership, (r) 3 Humph. 597 ; Gansevoort u. Williams, 14 Wend. 133,138; Wilson v. Williams, 14 Wend. 146 ; Austin v. Vandermark, 4 Hill (N. Y.), 261 ; Williams v. Walbridge, 3 Wend. 415 ; Whaley o. Moody, 2 Humph. 495 ; Chenowith v. Chamberlin, 6 B. Mon. 60 ; Sweetser v. French, 2 Cush. 309, 314; Darling u. March, 22 Maine, 188, 189 ; Bank of Vergennes v. Cameron, (p) See lb. ; Sandisland v. Marsh, 2 B. &Ald. 673,678, 679. (q) lb. ; Ex -parte. Nolte, 2 G. &'J. 295 ; [Sutton o. Irwine, 12 Serg. & R. 13 ; Hamill v. Purvis, 2 Penn. 177; Cremer 0. Higginson, 1 Mason, 335, 336 ; La- verty v. Burr, 1 Wend. 531 ; New York Fire Ins. Co. v. Bennett, 5 Conn. 574 ; Foote v. Sabin, 19 John. 154; Andrews v. 7 Barb. 134. And in all these cases, Planters' Bank, 7 Sm. & M. 192; Langan whether it appears upon the instrument, or v. Hcwett, 13 Sm. & M. 122.] in some other way, that the contract is one (r) Adams v. Bankart, 1 Cr., M. & R. of guaranty, suretyship, or accommoda- 681 ; Stead v. Salt, 3 Bing. 101. [But he tion, the burden of proof is upon the party may bind himself so as to submit his own holding it, if he took it knowing such to interest to such decision. Karthaus u. be the character of the contract, to show the facts necessary to render it available against the firm. Foot v. Sabin, 19 John. 154 ; Sweetser v. French, 2 Cush. 309, 314, 315; Hamill v. Purvis, 2 Penn. 177; Langan u. Hewett, 13 Sm. & M. 122; Darling u. March, 22 Maine, 188, 189; Rollins v. Stevens, 31 Maine, 454; Boyd v. Plumb, 7 Wend. 309. Direct or pos- itive proof is not necessary; the author- ity or ratification may be inferred from circumstances. Sweetser v. French, Dar- ling v. March, Gansevoort v. Williams, cited supra ; Bank of Kentucky v. Brook- ing, 2 Litt. 41 ; Jones v. Booth, 10 Vt. 268.] (0) See Brettel v. Williams, 4 Exch. 629 ; and Ex parte Bonbonus, 8 Ves. 540. Ferrer, 1 Peters (S. C), 222 ; M'Bride v. Hogan, 1 Wend. 326. In Pennsylvania, it has been determined that one partner may bind the firm by an agreement not under seal, to refer to arbitration any part- nership matter, unless, perhaps, there be an express dissent communicated to the other party. Taylor v. Coryell, 12 Serg. & R. 243. See Southard v. Steele, 3 Mon. 436; Buchanan v. Curry, 19 John. 137 • Fletcher v. Pollard, 2 Hen. & Munf. 544. In Ohio, one party may submit to arbitra- tion, partnership transactions, and bind his fellows. Wilcox v. Singletary, Wright, 420. See Collyer on Partn. § 439 ; Arm- strong v. Robinson, 5 Gill & J. 412. And one partner may compromise a debt, either as debtor or creditor. Doremus v. M'Cor- rnick, 7 Gill, 49.] 352 CONTRACTS WITH PARTNERS. So the general rule is, that one partner cannot bind the firm by nor by exe- executing a deed, even though the partnership articles cutingadeed. be by deed ; unless he be invested by his copartners, by a power of attorney under seal, with an express authority so to do. (s) And so, if one partner acknowledge that he gave another partner authority to execute a deed for him, the presumption is that it was a legal authority, that is, an authority under seal ; and such authority must be produced, the bare acknowledgment being insufficient, (it) But if one partner, in the presence of the other and with his express consent, execute a deed for both of them, in a transaction in which both are interested, it is a valid execution by both ; al- though there be but one seal, and it be not put twice on the wax. (u) (s) Harrison v. Jackson, 7 T. R. 207 ; Thomason v. Frere, 10 East, 418; CJinan v. Cooke, 1 Sch. & Lcf. 22. [One partner may sign and seal a general assignment made by a debtor of the firm, for the pay- ment of debts, and it will bind the part- nership as a release of the debt. Halsey v. Whitney, 4 Mason, 206. A bond given by one partner for a simple contract part- nership debt, releases the other partner, at law, and in equity. Williams v. Hodgson, 2 Harr. & J. 474. Such bond, though not binding on the partner who did not execute it, is obligatory on the other who did. lb. Whether one partner may, without the ex- press consent of his copartners, assign all the property of the firm to pay the debts of the firm, is a, question on which the authorities differ. In favor of such an assignment, see Anderson v. Tompkins, 1 Brock. 456 ; Harrison v. Sterry, 5 Cranch, 300 ; Robinson o. Crowder, 4 McCord, 519 ; Mills v. Barber, 4 Day, 428; Deck- ard's case, 5 Watts, 22 ; Arnold v. Brown, 24 Pick. 89 ; Tapley v. Butterfield, 1 Met. 515. Opposed to such an assign- ment, see Havens v. Hussey, 5 Paige, 30; Egbert v. Woods, 3 lb. 517 ; Hitchcock v. St. John, 1 Hoff. Ch. R. 511 ; Kirby v. Ingersol, 1 Hair. Ch. (Mich.) 172; S. C. 1 Douglas (Mich.), 477 ;!Dana i\ Lull, 17 Vt. 390. In these cases the assignments preferred some creditors over others. See Mills v. Argall, 6 Paige, 577 ; Dickinson v. Legare, 1 Desaus. 537 ; Pierpont v. Graham, 4 Wash. C. C. 282 ; Hughes v. Ellison, 5 Missou. 463 ; Deming v. Colt, 3 Sandf. 284 ; Drake v. Rogers, 6 lb. 317, 322 ; Hennessy v. Western Bank, 6 Watts & S. 300; M'Culloch v. Somerville, 8 Leigh, 416 ; Moddewell v. Keever, 8 Watts 6 S. 63.] (t) Steiglitz v. Eggington, Holt, 141. («) Ball u. Dunsterviile, 4 T. R. 313. [See Person u. Carter, 3 Murph. 321 ; Blackburne v. M'Allister, Peck, 371. A partner may bind his copartner by a con- tract under seal, made in the name and for the use of the firm, in the course of the partnership business, provided the co- partner assents to the contract previously to the execution, or afterward ratifies and adopts it ; and this assent or adoption may be by parol. Cady v. Shepherd, 11 Pick. 400 ; Swan v. Stedman, 4 Met. 548 ; Mc Naughten v. Partridge, 11 Ohio, 223; Morris v. Jones, 4 Harr. 428; Smith v. Kerr, 3 Comst. 44 ; Price v. Alexander, 2 Greene (Iowa), 427 ; Gram u. Seton, 1 Hall, 262 ; Collyer on Partn. § 462 el seq., §467, and note; Skinner v. Dayton, 19 John. 513 ; Randall v. Van Vechten, 19 John. 69 ; Bank of Columbia v. Patterson, 7 Cranch, 297 ; Darst v. Roth, 4 Wash. C. C. 471 ; Marsh v. Gold, 2 Pick. 280; Button v. Hampson, Wright, 93 ; Ford v. CONTRACTS WITH PARTNERS. 353 And the rule above stated does not apply to releases under seal ; the law being, that such an instrument executed by one Aliter as to partner will bind the firm, (a;) releases - Where a contract has been entered into by some of several part- ners, which, primd facie, would bind the firm, but there Question of are circumstances which render it doubtful whether it Jor^hTiury was intended to have this effect ; it is for the jury to where the *> J contract say, whether it really was the intention of the parties, primd fade ii i i 1 1 • • • i binds the that the other partner or partners should join in the firm. contract ; and if it was not, the firm will not be bound, (if) 3. If a person who deals with one partner do not act bond fide; e. g. if he collude with one partner, to take payment or security for his individual debt out of the partnership mahjides in funds, knowing at the time, or having reason to believe, r pa 7 ' that the one partner is acting without the consent of his copart- ners, the firm will not be bound, (a) Haft, Wright, 115 ; James v. Bostwick, Wright, 143 ; Person v. Carter, 3 Murph. 321. In Tuberville v. Ryan, 1 Humph. 113, parol authority, or ratification's held insufficient to render a deed executed by one partner, binding on the firm. See Gerard v. Bass, 1 Dall. 119; Green v. Beals, 2 Caines, 254 ; Clement v. Bush, 3 John. Cas. 180 ; Mackay v. Bloodgood, 9 John. 285; Anon. 2 Hayw. 99; Mills v. Barber, 4 Day, 428 ; Garland v. David- son, 3 Munf. 189 ; Hart v. Withers, 1 Peun. 285 ; Pasey v. Bullitt, 1 Blackf. 99 ; Flood i>. Yandes, 1 Blackf. 103 ; Barlow v. Beno, 1 Blackf. 252 ; Williams v. Hodgson, 2 Harr. & J. 474 ; McMurty v. Prank, 4 Mon. 41 ; Trimble v. Coons, 2 Marsh. 375 ; Van Deusen v. Blum, 18 Pick. 231. The doctrine that a partner cannot bind his co- partner by deed, does not apply in a case in which the property purported to be con- veyed, by the deed, is of such a descrip- tion, that a title to it passes by the mere act of delivery. The mere circumstance of annexing a seal to the instrument of conveyance, in such a case, does not annul a transfer so consummated. Anderson v. Tompkins, 1 Brock. 456; Tapley v. But- terfield, 1 Met. 515; Milton v. Mosher, 7 vol. I. 23 lb. 244 ; Lawrence v. Taylor, 5 Hill, 107 , M'Culloch v. Somerville, 8 Leigh, 415 ; Collyer Partn. § 467, and note. Nor, it seems, does this doctrine apply in any case where the annexation of the seal is not necessary to complete the instrument. Morse v. Bellows, 7 N. H. 558, 559 ; Hor- ton u. Child, 4 Dev. 460 ; Price v. Alex- ander, 2 Greene (Iowa), 427. If the partner, who has delivered a deed under seal, not binding the partnership, take it back, remove the seal and redeliver it, the deed may operate as a simple promise. Horton v. Child, 4 Dev. 460.] (x) Perry v. Jackson, 4 T. E. 516, 519 ; Hawkshaw v. Parkins, 2 Swanst. 539, 544. (y) Latch v. Wedlake, 11 A. & E. 959, 965. (z) Per Lord Ellenborough, Swan v. Steele, 7 East, 210, 213; and see In re Riches, 34 L. J. Bank. Ca. 10, 12 ; Arden v. Sharpe, 2 Esp. 523 ; Ridley v. Taylor, 13 East, 175 ; Ex parte Bonbonus, 8 Ves. 542 ; Vere v. Ashby, 10 B. & C. 288, 298. A. and B. were partners, and B. fraud- ulently indorsed to C, in payment of a private debt, certain bills, the property of the firm. B. became bankrupt; where- upon his assignees disaffirmed this trans- 354 CONTRACTS WITH PARTNERS. And the result will be the same where, although there be no positive evidence of mala fides, it may reasonably be which it may inferred from the nature of the transaction itself, (a) Thus, in Shireff u. Wilks, (5) the plaintiffs drew a bill of exchange for a balance due from Bishop and Wilks, for porter sold to them before their third partner, Robson, had any concern with the house ; and then they sought to charge Robson, as well as Bishop and Wilks, on the acceptance of Bishop in the name of the firm of " G. Bishop and Co." But the court held that, from the nature of the transaction, the plaintiffs must have been aware that Bishop and Wilks had no authority to bind the partnership firm and funds of the three, for the separate debt of two ; and that, no assent on the part of Robson being found, and there being nothing stated to show that he knew of the transaction, he, Robson, was not liable. So, in Ex parte Goulding, (c) the bankrupt, O'Neill, having con- tracted a debt with the petitioners, entered into partnership with the other bankrupt, Martin. After the formation of the partnership, the agent of O'Neill delivered to the petitioners, in satisfaction of their debt, a bill drawn by him on the firm of O'Neill and Martin ; and such bill was afterwards accepted by O'Neill in the name of the firm. It appeared that O'Neill's acceptance of this bill was with- out the authority or privity of Martin ; but it did not appear that there was any express collusion, or any knowledge that Martin had not authorized O'Neill to give the acceptance of the partnership. The question was, whether the petitioners were entitled, under the circumstances, to prove the bill against the joint estate of O'Neill and Martin ; and the vice chancellor said : " For the petitioners it is argued that, there being no fraud on their part, they are entitled to this joint proof. Upon an attentive consideration of the several authorities which have been referred to I am of opinion, that where one partner gives the acceptance of the firm, in payment of his sep- arate debt, without authority from his copartner, such acceptance does not bind the firm, and that the petitioners cannot prove against the joint estate." action as a fraudulent preference; and it wrong against the person so colluding. was held that they could join with A. in Per Lord Tenterden C. J. Longman v. an action of trover against C. for the bills. Pole, M. & M. 223. Heilbut v. Nevill, L. Rep. 4 C. P. 354 ; (a) See Hope v. Oust, 1 East, 53. (in Cam. Scac.) 5 lb. 478. If a person (b) 1 East, 48; and see Green o. Dea- collude with one partner, to enable him to kin, 2 Stark. 347. injure the others, those others may, it (c) 2 G. & J. 11 8 ; Wells v. Masterman, 6eems, maintain a joint action for this 3 Esp. 730. CONTRACTS WITH PARTNERS. 355 And the principle of these decisions seems to be ; that the mere circumstance of the debt which forms the consideration principle of for the bill, being due only from the partner who actually these cases ' accepts or indorses it, ought to induce the creditor to inquire whether the separate debtor had the express authority of his co- partners, to give the bill as a security for his debt ; and that fraud shall be presumed, unless the express authority of the one partner, thus to apply the partnership property, be established. (cZ) Arid this doctrine is confirmed by the cases in which it has been held, that if it be shown that a bill or note originated under such cir- cumstances, even an indorsee of such bill or note cannot sue the firm thereon, without proving that he took it for value, (e) If a bill accepted in the name of the partnership, be applied with the knowledge of the party who takes such bill, in „.„ ,. , 6 r Bill applied part only to the separate use of the partner who actually in part to the . „ , separate use accepts it ; a secret partner, not known or the party of one part- who takes the bill, is liable in respect of so much of the ner ' amount as is not, to the knowledge of the taker, applied to the sep- arate use of the partner who accepts the bill. (/) And so, where a bill is accepted in the name of a firm, or accepted for a debt which was incurred partly before and partly ^"buson?' * after one of the partners ioined the firm, that one will tracted by the r ° # firm, before be liable for so much of the debt for which the bill was one of the accepted, as accrued subsequently to that time. Q/') joined it. 4. Where A. and B. agreed to take a farm, and to pay C. a former occupier, for certain articles, by bills drawn at three (d) See Leverson v. Lane, 13 C. B. N. v. Burr, 1 Wend. 529 ; Livingston v. Roose- S. 278; [Kemeys v. Richards, 11 Barb, velt, 4 John. 251 ; Taylor v. Hillyer, 3 312; Eastman v. Cooper, 15 Pick. 276, Blackf. 433; Rogers v. Batchelor, 12 290 ; Davenport v. Runlett, 3 N. H. 386 ; Peters, 229 ; Hickman v. Reineking, 6 Weed v. Richardson, 2 Dev. & Bat. 535 ; Blackf. 388 ; Maudlin v. Branch Bank, 2 Pierce v. Pass, 1 Porter, 232 ; Dob v. Hal- Ala. 502 ; Miller v. Manice, 6 Hill (N. Y.), sey, 16 John. 34, 38 ; Gansevoort u. Wil- 115.] Hams, 14 Wend. 133, 135 ; Wilson v. Wil- (e) Hogg v. Skeen, 18 C. B. N. S. 426 ; liams, 14 Wend. 146 ; Darling v. March, Heath v. Sansom, 2 B. & Ad. 291. The 22 Maine, 184 ; Brewster v. Mott, 4 Scam, cases of Musgrave o. Drake, 5 Q. B. 105, 378 ; Williams v. Gilchrist, 1 1 N. H. 535 ; arid Ridley v. Taylor, 13 East, 1-75, so far McKinney v. Brights, 16 Penn. St. 399; as they are at variance with the proposi- Livingston v. Hastie, 2 Caines, 246; Lan- tion stated in the text, cannot be regarded sing u. Gaine, 2 John. 300 ; Duncan v. as law. Clarke, 2 Richardson, 587; Baird v. (/) Wintle v. Crowther, 1 C. & J. 316. Cochran, 4 Serg. & R. 246 ; Colton v. (g) Wilson v. Lewis, 2 M. & G. 197 ; 2 Evans, 1 Dev. & Bat. Eq. 284; Laverty Scott N. R. 115. 356 CONTRACTS WITH PARTNERS. months ; and C. afterwards, without the knowledge or consent of Other cases A., took from B. bills for the amount, payable at six and acurf'one twelve months, accepted by himself in his own name notbinYthe and A> ' S : ifc WaS he,d tllat the Iatter COuld not be sued firm. on the bills, the court being of opinion that B. had not, under such circumstances, sufficient authority to bind A. (Ji) Where an agreement had been entered into between the plaintiff and one of the defendants, proprietors of a stage-coach, to carry certain parcels for the plaintiff free of expense, which were accordingly carried for two years ; but there was no evidence of any knowledge of this agreement by the other defendants, and the defendants had given notice that they would not be accountable for parcels above the value of 51., unless entered and paid for : it was held that the defendants were not liable for the loss of a parcel above the value of 51., which had been sent by the plaintiff under the agreement, — no notice of the value of the parcel having been given to the defendants, (i) So, where it appeared that A., B., and C, who were not gen- M , eral partners, entered into a joint speculation, to which rowed by each was to contribute a third : it was held that A., who partner on his private had paid his share, was not liable to the bankers of B., for money advanced by such bankers on the in- dividual credit of B., with the knowledge of A., though such money were applied in payment of bills drawn upon B. in the course of the joint speculation. (_j ) So, where one of two part- ners drew bills of exchange in his own name, which he procured to be discounted by a banker, through the medium of the same agent who procured the discount by the same banker, of bills drawn in the name of the partnership ; it was held, that the latter had no remedy against the partnership, either upon the bills so drawn by *the single partner, or for money had and received through the medium of such bills, although the proceeds were carried to the partnership account ; the money being advanced solely on the se- curity of the parties whose names were on the bills, by way of dis- count, and not by way of loan to the partnership, although the bankers conceived at the time -that all the bills were drawn on the partnership account, (/c) (A) Greenslade v. Dower, 7 B. & C. (j) Smith v. Craven, 1 C. & J. 500. 635. (£) Emly v. Lye, 15 East, 7; see Ex (i) Bignold u. Waterhouse, 1 M. & S. parte Bolitho, Buck, 1100. 255. CONTRACTS WITH PARTNERS. 357 It seems, moreover, that if one partner borrow a sum of money on his own private credit, the sum borrowed does not become a partnership debt, merely by being applied to partnership pur- poses. (/) But where one of several partners, with the privity and by the authority of the others, drew bills of exchange in his own name upon the partnership firm, in favor of persons who advanced the amount, which was applied to the use of the partnership ; Lord Ellenborough C. J. held, that although the partners were not jointly liable on the bills, they might be jointly sued by the payees for money lent, the transaction being a loan rather than a dis- count, (m) So, where one of two partners raises money by bills, and indorses them in the name of the firm, and the money is after- wards, with the knowledge of the other partner, applied to part- nership purposes : this is a fact from which the jury may infer, that he had authorized the giving of the bills in question, (n) And if it appear from the facts of the case, that the indorsement of a bill by one of the members of a firm, is to be considered as an indorse- ment thereof by the firm of which he is a member, this will render the firm liable on such bill, (o) Although, however, the firm may be liable to the lender of money which is advanced to one partner, — the lender supposing that he is borrowing for partnership purposes, and on the credit of the firm ; yet it is said, that if there be gross negligence, and the transaction be out of the ordinary course of business, the lender cannot recover against the other partners, if the money lent be misapplied, (p) And although no fraud exist, and the transaction be purely of a partnership nature, the act or contract of one partner Effect of does not bind the firm, if the creditor have received a third party. (I) Lloyd a. Freshfield, 9 D. & R. 19 ; (m) Denton v. Kodie, 3 Camp. 493 ; S. C. 2 C. & P. 325, 333 ; and see Beavan observed upon by Bayley B. in Smith v. v. Lewis, 1 Sim. 376 ; "Vere v. Ashby, 10 Craven, 1 C. & J. 500, 507 ; Ex parte Bo- B. & C. 288; [3 Kent, 41, 42; Collyer litho, Buck, 1100; [Collyer Partn. §478, Partn. §§ 401, 478 ; Graeff k. Hitchman,5 note.] Watts, 454 ; Foley v. Robards, 3 Ired. (n) Thicknesse v. Bromilow, 2 C. & J. 179, 180 ; Jaques v. Marquand, 6 Cowen, 425. 497 ; Willis v. Hill, 2 Dev. & Bat. 231 ; (o) South Carolina Bank v. Case, 8 B. Bond v. Aitkin, 6 Watts & S. 165 ; Fos- & C. 42 7. ter v. Hall, 4 Humph. 346 ; Story Partn. (p) Per Bailey J. Lloyd v. Freshfield, 2 §§ 134, 140 ; Ferson v. Monroe, 21 N. H. C. & P. 325, 333. 465, 466.] 358 CONTRACTS WITH PARTNERS. previous express notice from the other partners, that they will not consider themselves responsible. (c[) 5. The subsequent approval and recognition by the firm, of Effect of rec- the act or contract of one of the partners, or their priv- th"^™ of 7 ity and silence, afford strong evidence that he was in- ized U act U S° r " Yeste( ^ w i tn a sufficient prior authority to bind all the one partner, partners, (V) So, acts, subsequent to the time of de- livering the goods on a contract, may be admitted as evidence to show that the goods were delivered on the partnership account, if that were doubtful at the time of the contract. But if it clearly appear that no partnership existed at the time of the contract, no subsequent act by any person who may afterwards become a part- ner, — not even an express promise to pay, or his accepting a bill of exchange drawn on the firm for the very goods, — will make him liable in an action for goods sold and delivered, or for goods bargained and sold, or on an account stated : (s) although he will be liable on the bill of exchange. (£) 6. A partnership cannot acquire any property in goods obtained Effect of by the fraud of one of the partners, even although the partner. others be not privy thereto, (u) (?) v. Layfield, 1 Salk. 292; Gall- Maine, 178. See Galway v. Matthew, 10 way v. Matthew, 10 East, 264; Willis v. East, 264 ; Le Roy v. Johnson, 2 Peters, Dyson, 1 Stark. 164; Vice K.Fleming, 1 1.36; Feigley v. Sponeberger, 5 Watts & Y. & J. 227 ; [Collyer Partn. § 387 ; Dow S. 567 ; Collyer Partn. §§ 388, 389. But a. Sayward, 12 N. H. 275 ; Baxter v. the dissenting partner would not be liable Clark, 4 Ired. (Law) 129; Ensign u. merely on the ground that the goods pur- Ward, 1 John. Cas. 171; Boardman u. chased or the fruits of the contract came Gore, 15 Mass. 339 ; Bailey u . Clark, 6 to the use of the firm. Monroe v. Conner, Pick. 372; N. Y. Fire Ins. Co. v. Bennett, 15 Maine, 178, 181 ; Leavitt v. Peck, 3 5 Conn. 597, 598; Gram v. Cadwell, 5 Conn. 124; Galway v. Matthew, 10 East, Cowen, 489 ; Livingston u. Roosevelt, 4 264. But see, as to the right of a partner John. 251. So, it seems to be well settled, to dissent and avoid liability for the acts of that one partner may interfere, and by his his copartners where there are more than dissent from future contracts by his co- two members of the firm, and as to the partner, or from the closing of contracts rights and powers of a majority of the firm, with him which have hot become binding Collyer Partn. §§ 197, 198, 389, in notes; upon the firm, he may, upon notice there- Story Partn. § 123 ; 3 Kent, 45, 46.] of, avoid any liability subsequently arising (?■) Ex parte Bonbonus, 8 Ves. 540; upon such contracts, if entered into, unless Duncan u. Lowndes, 3 Camp. 478; Ex the dissenting partner afterwards assents to parte Nolte, 2 G. & J. 295. and ratifies the transaction. ' Willis v. Dy- (s) Beale i'. Mouls, 10 Q. B. 976, 983. son, 1 Stark. 164 ; 3 Kent, 45 ; Leavitt v. (t) Savill v. Robertson, 4 T. R. 720. Peck, 3 Conn. 124; Monroe v. Conner, 15 (u) Kilby v. Wilson, 1 R. & M. 178. CONTRACTS WITH PARTNERS. 359 So, where the transaction is not bond fide, notice to one part- ner is not impliedly notice to the firm, (a;) Notice to one partner not notice to the 7. Banking copartnerships, established under the 7 f^ere be' Jona Geo. 4, c. 46, are placed by that statute on a peculiar .fi des - footing ; and, as to them, it is held that the creditors of Banking co- a company so established have no remedy against the par ners lp ' individual members, as at common law, even although the com- pany cease to appoint a public officer pursuant to the statute. («/) 4. Of the Dissolution of a Partnership, and its Effects. 1. A partnership may be dissolved, first, by the act of the parties, as by their mutual consent; and where no specific period is limited for the continuance of the partnership, (j/ 1 ) how dis- either party may dissolve it at any time ; (2) secondly, by the act of God, as by the death of one of the partners ; (a) (x) Bignold v. Waterhouse, 1 M. & S. 255, 259. [But where the transaction is bond fide, notice to one partner in matters relating to the partnership business is no- tice to all. See Alderson v. Pope, 1 Camp. 404, note; Story Partn. § 107; Collyer Partn. § 443; Lansing v. M'Killup, 7 Cowen, 416 ; Gilley u. Singleton, 3 Litt. 249 ; Watson v. Wells, 5 Conn. 468 ; Fitch v. Stumps, 6 How. (Miss.) 487 ; as, of a prior unrecorded deed ; Barney u. Currier, 1 D. Chip. 315 ; of the dishonor of a note ; Porthouse v. Parker, 1 Camp. 82; Gowan v. Jackson, 20 John. 176; Nott v. Downing, 6 Louis. Bep. 684 ; Coll- yer Partn. § 443 ; of legal proceedings in which the firm are interested ; Collyer Partn. §§ 441, 443 ; Figgins 0. Ward, 2 C. & M. 424 ; Carter v. Southall, 3 M. & W. 1 28. So, a notice by one partner in a legal proceeding, or the signature of one partner in matters of simple contract, re- lating to the partnership, binds the firm. Notice of abandonment of property insured for the firm may be given by one partner. So notice to quit may be given by one of several joint owners, partners in trade. Collyer Partn. § 442.] (y) Davison v. Farmer, 6 Exch. 242 ; Steward v. Greaves, 10 M. & W. 711. (y 1 ) [Though a copartnership is, by the articles, to terminate at a certain period, it may be continued by express or tacit consent; and in such case, the stipulations of the original articles would be considered as those of the continuing partnership. Mifflin v. Smith, 17 Serg. & R. 165. See Marquand v. The N. Y. Man. Co. 17 John. 525 ; Skinner o. Dayton, 19 John. 538. Either party may by his own act dissolve the partnership, unless restrained by the compact between them to continue it for a definite period. Griswold v. Wad dington, 15 John. 57. See Dougherty v. Van Nostrand, 1 Hoff. 68. Whether one partner may by his mere act or will dis- solve a partnership, formed for a stipulated period, before that period ariives, has been a subject of some discussion, and is left un- determined. Collyer Partn. § 119, in note ; Pierpont v. Graham, 4 Wash. C. C. 234 ; Story Partn. § 275 ; Bishop v. Breckles, 1 Hoff. Ch. R. 534 ; 3 Kent, 55 ; Howell v. Harvey, 5 Ark. 381.] (2) Master a. Kirton, 3 Ves. 74 ; Tat- tersall v. Groote, 2 B. & P. 131 ; Peacock 0. Peacock, 16 Ves. 49; Featherstonhaugh u. Fenwick, 17 lb. 298 ; per Lord Eldon C. Crawshay v. Maute, 1 Swanst. 508. See Littlewood v. Caldwell, 11 Price, 48 ; Heath v. Sansom, 4 B. & Ad. 173. (a) Pearce v. Chamberlain, 2 Ves. 33 ; 360 CONTRACTS WITH PARTNERS. thirdly, by act of law, as where one of the partners becomes bank- rupt : (6) fourthly, where the partnership is formed to effect a par- ticular object, which is found to be impracticable ; (c) and fifthly, by decree of a court of equity, founded on the wilful fraud, or other gross misconduct, of one of the copartners, (c?) And if, in this last case, the other partner give notice dissolving the part- nership, the court will decree a dissolution from the date of the no- tice, (e) Crawshay v. Maule, 1 Swanst. 508 ; per Eldon C. : "Although » partnership is entered into for a term of years, it is previ- ously dissolved by the death of either of the partners," [Washburn v. Goodman, 17 Pick. 519; Goodburn v. Stevens, 5 Gill, 1,] " unless there be an express stip- ulation to the contrary. Crawford v. Hamilton, 3 Madd. 251 ; '' [Burwell v. Mandeville, 2 How. (U. S.) 560.] As to the effect of such stipulation, if the" nomi- nee of deceased partner will not act; Regshaw v. Matthews, 2 Russ. 62 ; [Coll- yer Partn. § 113 ; Murray v. Mumford, 6 Cowen, 441 ; Canfield u. Hard, 6 Conn. 184; Burwell ■>. Mundeville, 2 How. (U. S.) 500; Knapp v. M'Bride, 7 Ala. 19. The dissolution takes effect from the time of the death, and not only as to the de- ceased partner, but as to all the survivors. Scholefield v. Eichelberger, 7 Peters, 586, 594; Dyer <,. Clark, 5 Met. 575. The same rule applies though the deceased was a silent partner. Washburn v. Goodman, 17 Pick. 520.] When one of the members of a firm becomes of unsound mind, and there is a probability of the malady con- tinuing, a court of equity will relieve the other partners by decreeing a dissolution of the partnership, Jones v. Noy, 2 My. & K. 125 ; Kirby v. Carr, 3 Y. & C. 184; [Collyer Partn. § 113 ; 3 Kent, 58 ; Story Partn. § 295 ; Griswold v. Waddington, 15 John. 57, 82, It is, however, intimated Fox u. Hanbury, Cowp. 447 ; Ex parte Ruffin, 6 Ves. 126; Smifh u. Stokes, 1 East, 364; Thomason v. Frere, 10 lb. 418; Harvey v. Crickett, 5 M. & S. 336, 340. (o) Baring v. Dix, 1 Cox, 212. (d) Collyer on Partn. § 296. [So, a partnership is dissolved by a war between the two countries to which the different partners belong. Griswold v. Wadding- ton, 15 John. 57 ; S. C. 16 John. 438, in error. The insolvency of a copartnership does not per se dissolve the relation. Ar- nold v. Brown, 24 Pick. 89. In reference to the causes of the dissolution of partner- ship, see Collyer Partn. § 108 et seq. and notes. In addition to the causes named, it seems that an assignment by one partner of his interest in the concern, either to a copartner or to a stranger, and a retire- ment of that partner from the firm, will dissolve the firm. Collyer Partn. § 110; Marquand v. New York Manuf. Co. 17 John. 525 ; Cochran v. Perry, 8 Watts & S. 262; Conwell v. Sandidge, 5 Dana, 213; Whitton v. Smith, 1 Freem. Ch. 231 ; Hitchcock v. St. John, 1 Hoff. Ch. R, 511 ; Buford u. McNeely, 2 Dev. Eq. 481 ; 3 Kent, 59 ; Horton's Appeal, 13 Penn. St. 67. But see Taft v. Buffum, 14 Pick. 322. So an assignment under insol- vent acts, or a sale of the partnership ef- fects under a, separate execution against one partner, is ipso facto a dissolution. by Mr. Justice Story and by Mr. Chief CollyerPartn. § 112; Story Partn. §311. Justice Parker, that a better rule would be that absolute insanity should, ipso facto, operate a dissolution. Story Partn. § 295; Davis „. Paine, 10 N. H. 161. See Isler v. Baker, 6 Humph, 85.] (6) Hague v, Rolleston, 4 Burr. 2174 ; Marriage of a feme sole partner dissolves the partnership. Collyer Partn. § 115. A partnership is dissolved by the extinc- tion of the subject-matter of the joint business. lb.] («) Essell v. Hayward, 29 L. J. C. 806. CONTRACTS WITH PARTNERS. 361 But in order to render the dissolution of a partnership effectual as regards the public, it is in general necessary that notice Effect of thereof should be given in the Gazette. (/) And if a ticT thereof, partner retire without notice being given in the Gazette, "^"ufal and the name of the firm be still preserved, a person who ^''.'^ o£ ™" deals with the firm after the dissolution may still call ner. upon all the original parties, unless he had notice, or knew that one of them had retired. (#) And even where an infant held himself out as being in partnership with T. S., and continued to act as such till within a short period of his coming of age, but there was no proof of his doing any act as a partner after that period ; it was held, that it was his duty to notify his disaffirmance of the partnership on arriving at the age of twenty-one ; and that, as he had neglected to do so, he was responsible to persons who had, subsequently to his attaining twenty-one, trusted T. S. with goods on the credit of the partnership. (K) A public notice, however, will be sufficient to exonerate a retiring partner, from responsibility on contracts entered into by what notice the firm after the dissolution, with persons who were necessal T- not previously actual customers of the firm ; (i) even though the remaining partners carry on the concern under the style of the old firm, provided this be done without the consent of the retiring part- ner. (&) And a dormant, or secret partner, need give no notice (f) Gorham v. Thomson, Peake, 42; may bind his copartner, applies only to Godfrey!;. Turnbull, 1 Esp. 371. [Notice transactions in the usual course of busi- is not necessary whore the dissolution ness. Whitman v. Leonard, 3 Pick. 177. takes place by act of law ; Griswold v. The fact that sufficient time to give pub- Waddington, 15 John. 57 ; 16 John. 438 ; lie notice had not elapsed between the dis- Collyer Partn. § 538 ; as upon the death solution of the firm, and the subsequent of one of the partners. Martlett v. Jack- making of a note by one of the late part- man, 3 Allen, 287. See Tyrrell o. Wash- ners in the name of the firm, will not re- burn, 6 Allen, 475.] lease the partners from their liability to (g) Parkin u. Carruthers, 3 Esp. 248 ; pay such note, in the hands of a bond k [Tombeckbee Bank u. Dumell, 5 Mason, fide holder. Bristol v. Sprague, 8 Wend. 57 ; Bernard v. Torrance, 5 Gill & J. 583 ; 423.] Lucas v. Bank of Darien, 2 Stewart, 280 ; (A) Goode v. Harrison, 5 B. & Aid. 125, Sanderson v. Milton Stage Co. 18 Vt. 147. 107 ; Dundass v. Gallagiee, 4 Barr, 205 ; (i) Per Creeswell, J. Earrar v. Deflinne, Le Roy v. Johnson, 2 Peters, 186 ; Pitcher 1 C. & K. 580. u. Barrows, 17 Pick. 365 ; Collyer Partn. (k) Newsome v. Coles, 2 Camp. 617 ; [3 § 530 ; Taylor v. Young, 3 Watts, 339. Kent, 67 ; Godfrey v. Turnbull, 1 Esp. The principle that, after a partnership is 371; Lansing v. Gaine, 2 John. 300; dissolved, one partner, dealing with a per- Ketcham v. Clark, 6 John. 144 ; Graves v. son who has no notice of the dissolution, Merry, 6 Cowen, 701 ; Martin v. Walton, 362 CONTRACTS WITH PARTNERS. whatever of his retirement, in order to discharge himself from lia- bility to persons who did not know of his being a partner, and who subsequently contract with the firm. (I) But it is clear that an express notice of the dissolution, or actual knowledge thereof must be proved, in order to discharge a retiring partner from responsibility on the subsequent dealings of the firm with persons who, before the dissolution, trusted and dealt with the firm, (to) And where the fact of a man being a dormant partner has become known to any person or persons, he will be in the same 1 McCord, 16; Bank of South Carolina v. Humphreys, lb. 388 ; Prentiss v. Sin- clair, 5 Vt. 149 ; Watkinson v. Bank of Pennsylvania, 4 Whart. 482 ; Shurlds v. Tilson, 2 McLean, 458 ; Collyer Partn. § 534; Mowatt v. Howland, 3 Day, 353; Brisban v. Boyd, 4 Paige, 17 ; Mitchum v. Bank of Kentucky, 9 Dana, 166. It seems to be sufficient in this country, if notice of dissolution is given in some one of the usual advertising newspapers of the city or county where the business is carried on. A reasonable notice thus published is constructive notice to all, except those who have previously dealt with the firm. Ketcham v. Clark, 6 John. 147 ; Mowatt a. Howland, 3 Day, 353 ; Martin v. Wal- ton, 1 McCord, 16 ; Collyer Partn. § 532; Watkinson v. Bank of Pennsylvania, 4 Whart. 432; Prentiss u. Sinclair, 5 Vt. 149.] (1) Per Cresswell J. Farrar v. Deflinne, 1 C. & K. 580 ; Carter e. Whalley, 1 B. & Ad. 11 ; Heath v. Sansora, 4 B. & Ad. 172; [Collyer Partn. § 536; Kelley a. Hurlburt, 5 Cowen, 536 ; Magill v. Mer- rie, 5 B. Mon. 168 ; Scott v. Colmesnil, 7 J. J. Marsh. 416; Grosvenor v. Lloyd, 1 Met. 19 ; Armstrong v. Hussey, 12 Serg. & R. 315. Whether a partner was strictly a dormant partner, and his interest not in fact generally known, so as to excuse no- tice of dissolution, is a question of fact for the jury. Goddard v. Pratt, 16 Pick. 428, 429.] (m) See Hart v. Alexander, 7 C. & P. 746, 753 ; Kirwan v. Kirwan, 2 C. & M. 617 ; Graham v. Hope, Peake, 154. See Dolman v. Orchard, 2 C. & P. 104; [Mitchum v. Bank of Kentucky, 9 Dana, 166; Vernon i'. Manhattan Company, 22 Wend. 183; Collyer Partn. § 533, and note, and cases cited ; Pitcher v. Barrows, 17 Pick. 365 ; Coddington v. Hunt, 6 Hill, 595 ; Mauldin v. Bank of Mobile, 2 Ala. (N. S.) 502 ; Shurlds v. Tilson, 2 McLean, 458 ; Van Eps v. Dillaye, 6 Barb. 244 ; Hutchins v. Lims, 8 Humph. 423 ; Hutch- ins v. Hudson, 8 Humph. 426 ; Wardwell u. Haight, 2 Barb. 549 ; Hutchins v. Bank of Tennessee, 8 Humph. 418 ; Prentiss v. Sinclair, 5 Vt. 149 ; White v. Murphy, 3 Richardson, 369 ; Watkinson v. Bank of Pennsylvania, 4 Whart. 482 ; Goddard v. Pratt, 16 Pick. 431, 434. It is not mate- rial in what manner this notice is given ; it may be implied from circumstances. Vernon v. Manhattan Bank, 17 Wend. 526 ; S. C. 22 Wend. 183 ; Collyer Partn. § 533, and cases in notes. Mere notoriety of the fact of dissolution is not sufficient evidence of notice. Pitcher u. Barrows, 17 Pick. 361 ; Goddard u. Pratt, 16 Pick. 412; Southwick v. Allen, 11 Vt. 75. Proof, that a party — being a bank — dealing with a firm, took a newspaper, in which a notice of their dissolution was given, was held not to amount to actual notice. Vernon v. Manhattan Co. 22 Wend. 183; 3 Kent, 67, note. But see Bank of South Carolina v. Humphrey, 1 McCord, 388. A newspaper notice acci- dentally reaching a bank director is not equivalent to actual notice to the bank ; but it seems it would be if the notice was actually served on him, with directions to communicate it to the board. National Bank v. Norton, 1 Hill (N, Y.), 572.] CONTRACTS WITH PARTNERS. 363 situation in this respect as to all such persons, as if the existence of the partnership had been notorious, (n) But when notice has been given that it is the intention of parties to dissolve partnership, it lies upon the creditor to prove that such intention has been abandoned. (0) A change of partners in a banking-house is generally notified by a circular letter to the customers, (0 1 ) but it seems that a change of names in the printed checks of the house is sufficient notice of the dissolution of the partnership, to those customers who have drawn checks addressed to the new firm, (p) And where a per- son, who was sued as a partner for the value of goods furnished for " the owners'''' of a ship, was neither a partner in fact at the time, having parted with his share some time before, nor held himself out as such, having previously withdrawn his name from the description of the firm at the counting-house, and sent circular letters to the correspondents of the house notifying the change : it was decided, that he could not be charged, merely because he had subsequently joined with the assignees of the bankrupt partners, in making a good title to the ship to a purchaser from the assignees. (5) Notice of the dissolution of a partnership, to one of the members of a joint stock banking company, established under the 7 Geo. 4, c. 46, and 1 & 2 Vict. c. 96, is not, as in the joint stock r .. ... , company. case 01 an ordinary copartnership, notice to the com- pany. O) 2. After the dissolution of a firm, and due notice thereof given, when that is necessary, it is not in the power of one of Effects of the the members of the late firm to bind the others, by diss ° luti ° n - drawing, accepting, or making a bill or note ; although the instru- ment be dated prior to the dissolution, (s^ and the party signing it was authorized to settle the partnership affairs. (<) (n) Per Cresswell J. Farrar v. Deflinne, v. Leonard, 3 Pick. 197 ; Howe v. Thayer, 1 C. & K. 580. [But not as to those who 17 Pick. 95 ; Collyer Partn. §§ 533, 534.] were ignorant at the time of their respect- (p) Barfoot v. Goodall, 3 Camp. 147. ive contracts, that he was ever a partner. (q) M'lver v. Humble, 16 East, 169. Carter v. Whalley, 1 B. & Ad. 11 ; Kelley \r) Powles v. Page, 3 C. B. 16 ; and v. Hurlburt, 5 Cowen, 534; 3 Kent, 68.] per Parke B. Steward v. Dunn, 12 M. & (0) Paterson v. Zachariah, 1 Stark. W. 655, 664. 71. (s) Wrightson v. Pullan, 1 Stark. 375. (oi) [M'lver u. Humble, 16 East, 169. (0 Ex parte Liddiard, 2 M. & A. 87 See Hart v. Alexander, 2 M. & W. 484 ; and see Abel v. Sutton, 3 Esp. 108 Irby v. Vining, 2 McCord, 379 ; Whitman Eamsbottom v. Lewis, 1 Camp. 281 364 CONTRACTS WITH PARTNERS. But if a bill be duly drawn during the partnership, it may be indorsed by one of the partners in the name of the partnership, after a dissolution, and the indorsee will be entitled to recover there- on ; unless it be shown that there was fraudulent collusion between hirn and the partner who actually indorsed it. (it) So the continu- ing partner or partners may, after a dissolution, receive, or sue in the name of the old firm for, or, it seems, release, a debt due to such firm ; although it were stipulated as one of the terms of the dissolution, that the debt should be paid to the other partner, or to a third person, (x) So an admission made by one of two partners, after the dissolution of the partnership, concerning joint contracts that took place during the partnership, is competent evidence to charge the other partner, (y) And where, by a deed of dissolution of partnership, a power was reserved to the remaining partners to use the name of the retiring partner in the prosecution of all suits : Thomason v. Frere, 10 East, 418 ; [Parker v. Macomber, 18 Pick. 505; Yale v. Eames, 1 Met. 487 ; Woodward v. Down- er, 13 Vt. 522; Lansing v. Gaine, 2 John. 300 ; Sandford v. Mickles, 4 John. 224 ; Foultz u. Pourie, 2 Desaus. 40 ; Fisher v. Tucker, 1 McCord, 173 ; Poign- ard v. Livermore, 1 7 Martin, 324 ; Tom- beckbee Bank v. Dumell, 5 Mason, 56 ; Woodford v. Darwin, 3 Vt. 82 ; Collyer Partn. § 54 et seq. and notes ; National Bank v. Norton, 1 Hill (N. Y.), 572; Loekwood v. Comstock, 4 McLean, 383 ; Lusk v. Smith, 8 Barb. 570. Neither will the retiring partner be bound by any new contract entered into by the remaining partners. Collyer Partn. § 540, and cases in notes ; Loekwood v. Comstock, 4 Mc- Lean, 383. They cannot even renew a partnership note. lb. ; National Bank v. Norton, 1 Hill (N. Y.), 572 ; Bowman v. Blodgett, 2 Met. 300, 310; Ellicott v. Nichols, 7 Gill, 85.] (u) Lewis v. Reilly, 1 Q. B. 349 ; and see Smith a. Winter, 4 M. & W. 454. [See Collyer Partn. §§ 542, 544, and cases in notes ; 3 Kent, 63 ; Graves v. Merry, 6 Cowen, 701. One partner, even after dis- solution, may indorse the note of the firm, payable to himself, given before dissolu- tion. Temple v. Seaver, 11 Cush. 314.] (x) See Whitehead c. Hughes, 2 C. & M. 318 ; Porter v. Bristow, 6 M. & S. 156 ; King v. Smith, 4 C. & P. 108. See Biggs t-. Fellowes, 8 B. & C. 402; [Collyer Partn. § 546 ; 3 Kent, 63 ; Story Partn. §§ 324-328 ; Yale v. Eames, 1 Met. 487 ; Brown v. Higginbotham, 5 Leigh, 583 ; Caldwell r. Stillman, 1 Rawle, 212; Morse u. Bellows, 7 N. H. 549 ; Piatt J. 19 John. -143 ; Combs v. Boswell, 1 Dana, 475. It has been held that one partner may, after dissolution, bind the firm by a waiver of demand and notice made before maturity, on a note which had been in- dorsed by the partners in the name of the firm. Darling v. March, 22 Maine, 184. But see Bank of Vergennes v. Cameron, 7 Barb. 143.] (y) Wood o. Braddick, 1 Taunt. 104. Aliter, in the case of part owners of a ship. Jaggers v. Binnings, 1 Stark. 64 ; Hooper i... Lusby, 4 Camp. 66. [The American cases on this point will be found collected and commented on in Collyer Partn. § 423, from which it will appear that the decisions are conflicting. As to the power of one partner after dissolution, by his promise or acknowledgmen t to take a case out of the statute of limitations, see Coll- yer Partn. § 430.] CONTRACTS WITH TRUSTEES OR ASSIGNEES OF BANKRUPTS. 365 it was held, in an action in which judgment had been obtained by- all the partners before the dissolution, that the remaining partners had authority, under that power, to give to the defendant a note for the payment of the sixpences, under the lords act, on . behalf of themselves and the retiring partner. (2) So where A., being a member of a partnership consisting of sev- eral individuals, drew a bill of exchange in blank in the partnership name, payable to their order ; and, having likewise indorsed it in the partnership name, delivered it to a clerk, to be filled up for the use of the partnership as the exigencies of business might require, according to the course of dealing in other cases ; and after A.'s death, and after the surviving partners had formed themselves into a new firm, the clerk filled up the bill, inserting a date prior to A.'s death, and put it in circulation : it was held, that the surviving part- ners were liable as the drawers of the bill, to a bond fide indorsee for value, though no part of the value had come to their hands, (a) But where B. and S. who were copartners, appointed T. as their agent for a period of four years and a half from the date of the agreement '; and T. agreed to accept the said appointment, and before the end of the said period B. died : it was held, thatT. could not sue S. for not continuing him as agent for the whole period of four years and a half; on the ground that the parties must be taken to have contracted only with reference to the existing partner- ship. (5) And it has been decided, that the fact of the names of A. and B. appearing as joint proprietors of a newspaper, in the declaration filed at the stamp office, pursuant to the 6 & 7 Will. 4, c. 76, ss. 6 and 8, did not render A. liable in respect of a contract entered into specifically with B., after A. had ceased to be interested there- in, (c) 3. Trustees ok Assignees of Bankrupts. 1. Assignees of a bankrupt could not be declared against in that character upon contracts entered into by them ; it being Rights and held that, as they became personally liable on their en- onttlefr conl gagements, they must be sued accordingly. (cT) tracts - (z) Burton v. Issitt, 5 B. & Aid. 267. for the fraud of an agent appointed with (a) Usher v. Dauncey, 4 Camp. 97. due care ; see Haw v. Cutten, 9 Bing. 96. (i) Tasker v. Shepherd, 6 H. & N. The official assignee might be sued for 575. money received by him under a void (c) Holcroft v. Hoggins, 2 C. B. 488. commission. Monck v. Clarke, 10 Bing. (d) The assignees are not responsible 102. 366 CONTRACTS WITH TRUSTEES OR ASSIGNEES OF BANKRUPTS. But by " The Bankruptcy Act, 1869, " (e) the trustee of a bankrupt may sue and be sued by his official name, (/) and by that name may hold property of every description, and make con- tracts, and enter into engagements which shall bind himself and his successors in office ; and do all other acts necessary or expedient to be done in the execution of his office. It is provided, however, both by " The Bankrupt Law Consoli- dation Act, 1849," (#) and by "The Bankruptcy Act, be sued for 1869, (h) that neither the assignees nor the trustee shall be liable to an action at the suit of any creditor, to recover dividends. In the case of Richardson v. Griffin, (i) the court expressed an opinion, that assignees might lend money, part of the Liability of, r , & * n to be sued for bankrupts estate, and sue, in that character, for the re- covery thereof, (j) This opinion was founded on the provisions of the 5 Geo. 2, c. 30, s. 32, upon which, it was said, a case might be suggested in which it would be lawful for the assignee of a bankrupt to lend. And although it would seem that, under the modern bankrupt acts, (Je) the assignees did not possess this power, it would appear to be within the powers conferred on the trustee by "The Bankruptcy Act, 1869," which, as we have seen, authorizes him to enter into contracts and engagements, and to do all other acts which may be necessary or expedient to be done in the execution of his office, and to sue by his official name in respect thereof. The contract of one assignee does not, per se, bind the others. Thus, where the creditors and assignees of a bankrupt One assignee ..... • i 1 cannot bind met for the purpose of considering, whether unfinished houses of the bankrupt, a builder, should be completed and sold ; and some of the creditors, and one of the assignees, B., were disinclined to proceed ; but another of the assignees, A., agreed to find funds for the purpose, until the bankrupt's estate should produce sufficient money ; whereupon the creditors and both (e) 32 & 33 Vict. c. 71, s. 83, sub. a cause of action accruing to him in his sec. 7. own right, with a count on a right of (/) 7". B. " the trustee of the property action accruing to him as assignee; per of , a bankrupt." Bayley J. Richardson v. Griffin, 5 M. & (g) 12 & 13 Vict. c. 106, s. 190. S. 294, 297. (h) Sect. 46. (k) See 12 & 13 Vict. c. 106, ss. 186, (i) 5 M. & S. 294. 265, which were not repealed by the 24 & (j) The assignee cannot join a count on 25 Vict. c. 134. CONTRACTS WITH TRUSTEES OR ASSIGNEES OF BANKRUPTS. 367 the assignees, agreed that the work should be finished; and the assignee A., who had agreed to supply funds, employed the plaintiff to do part of the work necessary for the completion of the houses : Lord Kenyon held, in an action against A. and B., that B. was not liable to the plaintiff. " This action," his lordship said, "goes to charge the assignees personally, and if the plaintiff recover against them they must pay the money, whether they can reimburse themselves from the estate or not. Nothing can charge the assignee B. but a positive and express agreement, or such a tacit acqui- escence as plainly indicated his consent. He is not bound by the promise of the other assignee ; (J) and it is plain he made no con- tract himself, for A. promised to provide funds, and to him only can the plaintiff look." (m) 2. In bankruptcies under the 24 & 25 Vict. c. 134, the assignees were empowered, (w) in case of the bankrupt having, In bank . or being entitled to any land, either under a conveyance ^f^lc 25" to Mm in fee. or under an agreement for such conveyance, Vict, c. 134, J ' a j ~) And the right of action vests in both an executor and an admin- (i) Ord v. Fenwick, 3 East, 104. It is necessary to insert a count on a claim (k) Petrie v. Hannay, 3 T. R. 659 ; by the plaintiff as executor, in order to be Foxwist v. Tremaine, 2 Wms. Saund. 207, entitled to prove a promise to him, after 208; lb. 117 c. the testator's death. Sarrell u. Wine, 3 (I) Henshall u. Roberts, 5 East, 150; East, 409; Ward v. Hunter, 6 Taunt. Cowell v. Watts, 6 East, 505 ; Thompson 210 ; Pittam v. Forster, 1 B. & C. 248. v. Stent, 1 Taunt. 322. In an action for (m) See Webster v. Spencer, 3 B. & a debt due to the deceased, there may be Aid. 360 ; Richardson v. Griffin, 2 Chit. introduced into the declaration a count, 325. laying the debt to be due to the executor (n) Howley v. Knight, 14 Q. B. 240, as such. If a plaintiff executor fail in the 255. action, he- is prima facie liable to costs, (o) Stubbs v. Holywell Railway Com- although he sue strictly as executor. See pany, L. Rep. 2 Ex. 311. 3 & 4 Will. 4, c. 42, s. 31 ; Jobson v. Forster, (p) Crossthwaite v. Gardener, 18 Q. B. IB. & Ad. 6 ; Slater v. Lawson, lb. 893. 640 ; 21 L. J. Q. B. 356. 378 CONTRACTS WITH CORPORATIONS. When right of istrator, from the time of the death of the testator or in- action vests. f , , ( X 5. Corporations. 1. Corporations, like individuals, (5 1 ) have the power to con- „ tract ; but their contracts must, in general, be under corporations their corporate seal ; (r) and such seal must be affixed general, be with intent to render the instrument effectual, although under seal. r> i 7 i • . i r • ^ n no tormal delivery thereot is necessary, (s) For general purposes, not affecting the interest or title of the (q) Wclchman v. Sturgis, 13 Q. B. 552 ; Foster v. Bates, 12 M. & W. 226 ; Woolley v. Clarke, 5 B. & Aid. 744. (q 1 ) [That the word person orcitizen in- cludes a corporation, see Louisville &c. R. R. Co. v. Letson, 2 How. (U. S.) 497 ; Boyd r. Croydon R. Co. 4 Bing. N. C. 669 ; Lewis v. Denney, 4 Cush. 588 ; Common- wealth v. The Boston & Maine R. R. 3 Cush. 45. By statute in Massachusetts, Gen. Sts. c. 3, § 7, pi. 13.] (r) Mayor of Ludlow v. Charlton, 6 M. &W. 815; Bac. Abr. Corporations, (E.), 3 ; Rex v. Bigg, 3 P. Wms. 432, 434 ; The King v. The Inhabitants of Chipping Nor- ton, 5 East, 239 ; Yarborough v. The Bank of England, 16 East, 11. [The doctrine that a corporation can contract only under its corporate seal, is now very generally re- pudiated in the United States. Chestnut Hill Turnpike v. Rutter, 4 Serg. & R. 16 ; School District in Rumford v. Wood, 13 Mass. 199; Bank of U. S. v. Dand- ridge, 12 Wheat. 64 ; Bank of Columbia v. Patterson, 7 Cranch, 299 ; Union Bank v. Ridgeley, 1 H. & Gill, 324 ; The Banks v. Poitiaux, 3 Rand. 136 ; 1 Dev. & Bat. 306. It is said by Chancellor Kent, " that it is a doctrine, generally established in the courts of the several states, with great clearness and solidity of argument, that corporations can now be bound by con- tracts made by their agents, though not under seal, and also on implied contracts, to be deduced by inference from corporate acts, without either a note, or deed, or writing." 2 Kent, 291. Seethe numer- ous cases cited in support of this doctrine in 2 Kent, 291, note (c) ; Proprietors of Canal Bridge v. Gordon, 1 Pick. 297 ; Dunn a. St. Andrews Church, 14 John. 118; Abbott o. Hermon, 7 Greenl. 118; Commercial Bank v. Kortright, 22 Wend. 348 ; American Ins. Co. v. Oakley, 9 Paige, 496 ; Troy Turnp. & R. R. Co. c. M'Chesney, 21 Wend. 296 ; Buncombe Turnp. Co. v. M'Carson, 1 Dev. & Bat. 306 ; Gassett v. Andover, 21 Vt. 343 ; Sheldon v. Fairfax, 21 Vt. 102 ; Hnynes v. Covington, 13 Sm. & M. 408 ; Haigh r. North Bierly, 1 El., Bl. & El. 873; New York R. Co. ,'. New York, 1 Hilton, 587 ; Merrick r. Burlington R. R. Co. 11 Iowa, 75 ; Buckley i. Briggs, 30 Missou. 452; Peterson i\ Mayor of New York, 17 N. Y. 449 ; Elysville Manuf. Co. v. O'Kisko Co. 1 Md. Ch. 392 ; Lime Rock Bank w.Macom- ber, 29 Maine, 564 ; San Antonio r. Lewis, 9 Texas, 69 ; Trundy v. Farrar, 32 Maine, 225 ; Angell & Ames Corp. (9th ed.) § 237.] (s) Derby Canal Co. v. Wilmot, 9 East, 306. As to the seal being affixed by di- rectors of an incorporated company, and the necessity of their having the express sanction of the company, &c, see Clarke v. Imperial Gas Light Company, 4 B. & Ad. 315. Under what circumstances the directors of an incorporated company can sue the company for remuneration, directed to be paid to them by a resolution of the company, not under seal ; Dunston v. Im- perial Gas Light Company, 3 B. & Ad. 125. CONTRACTS WITH CORPORATIONS. 379 corporation, a corporation may act through the medium of an agent, although he possesses no authority under seal. (£) But a corporation cannot, in general, appoint an attorney, except under the corporate seal, (u) And so an agreement by a corpora- tion to pay a salary to their attorney must, in general, be under seal, (x) But where it appeared that the act of parliament which incor- porated the company enacted, that all the costs of obtaining the act should be paid and discharged out of the moneys subscribed, in preference to all other payments : it was held, that the attorney who obtained the act might, independently of any such agreement, sue the company for his costs, in an action of debt founded upon the statute, (y) 2. In the case of The East London Waterworks Company v. Bailey, (z) Best C. J. in delivering the judgment of Exceptio J i \ S to J & t n this ri the court said : jtions to this rule. (() Roe v. Pearce, 2 Camp. 96 ; and see Russell on Factors, 11. [One may become the agent of a corporation, as he may of an individual, without any deed or writing. Perkins v. Washington Ins. Co. 4 Cowen, 645; Randall r. Van Vechten, 19 John. 60; Badger v. Bank of Cumberland, 26 Maine, 428; Warren v. Ocean Ins. Co. 16 Maine, 439 ; Trundy v. Farrar, 32 Maine, 225 ; Everett v. United States, 6 Porter, 166; Lathrop v. Commercial Bank, 8 Dana, 114; Wolf v. Goddard, 9 Watts, 544; Richardson o. St. John Iron Co. 5 Blackf. 146. See Elysville Manuf. Co. v. O'Kisko Co. 1 Md. Ch. 392 ; St. Andrews Bay Land Co. v. Mitchell, 4 Florida, 192 ; Angell & Ames Corp. (9th ed.) § 283 ; Topping v. Bickford, 4 Allen, 120; North- ern Central R. Co. v. Bastian, 15 Md. 494 ; Goodwin v. Union Screw Co. 34 N. H. 378. A contract or promise of a corpo- ration is implied by law, as in case of individuals, from the authorized acts of its agents, &c. Kennedy o. Baltimore Ins. Co. 3 Harr. & J. 367 ; Baptist Church v. Mulford, 3 Halst. 182; Smith v- Pro- prietors &c. 8 Pick. 178 ; Wyman v, Hal- lowell & Augusta Bank, 2 Mason, 31 ; Barker v. Mechan. Ins. Co. 3 Wend, 94 ; Jackson v. Brown, 5 Wend. 592 ; Mel- ledge v. Boston Iron Co. 5 Cush. 158; Seagraves u. City of Alton, 13 111. 366. And the corporation may employ one of its members as an agent ; and such agent may be also agent for the party who con- tracts with the corporation, and make the memorandum required by the statute of frauds at a. sale of its property by him. Stoddert v. Vestry of Port Tobacco Parish, 2 Gill & J. 227. See Clark v. Woollen Manuf. Co. of Benton, 15 Wend. 256. Corporations authorized by their charter to contract in a prescribed mode, may nevertheless, by practice, render themselves liable on instruments executed in a differ- ent mode. Witte v. Derby Fishing Co. 2 Conn. 260 ; Bulkley v. Derby Fishing Co. 2 Conn. 252.] (u) Arnold v. Mayor of Poole, 4 M. & G. 860 ; Reg. v. Mayor of Stamford, 6 Q. B. 433, 443. (x) See Reg, v. Mayor of Stamford, 6 Q. B. 433. {y) Tilson v, Warwick Gas Light Com- pany, 4 B. & C. 962. And see Carden v. General Cemetery Company, 7 Scott, 97. {z) 4 Bing, 283. See Dunston v. Im- 380 CONTRACTS WITH CORPORATIONS. " It is clear as a general rule, that a corporation cannot express its will, except by writing under the common seal of the body cor- porate .... but this rule is ... . subject to some exceptions ; these are to be found in Brooke's Abridgment, (a) " The first is, where the contract is executed ; in that case the law implies a promise, and a deed under seal is not necessary, as was decided in The Mayor and Corporation of Stafford v. Till, (J) where it was holden that a corporation might maintain assumpsit for the use and occupation of their land, (e) " The next exception is, where the acts done are of daily neces- sity to the corporation, or too insignificant to be worth the trouble of affixing the common seal : all these are enumerated in Bro. Abr. Corporations, 56, and in Horn v. Ivy. (if) " Another exception is, where a corporation has a head, as a mayor, or a dean, who may give commands which a party may obey with- out the sanction of a common seal ; Randal v. Deane ; (e) or may bind the corporation by record. (/) " A fourth exception is, where the acts to be done must be done immediately, and it would be impossible to wait for the formality of the corporation seal ; ( acting officially and as a public agent, is not credit. liable personally upon contracts made by him in that capacity ; (n) whether such contracts be by parol or by deed. (0) But if he expressly pledge his personal credit, he will be liable, (p) And where the commander of a king's ship entered into a charter- party, "'on behalf of his majesty," for the .hire of a vessel ; and " for and on behalf of his majesty," covenanted that a certain sum " should be paid by his majesty " in respect thereof; Lord Mans- field held that he was personally liable thereon. ( . T ., .of the poor. or supplying, tor proht, any goods, materials, or provis- ions, for the use of the workhouse, or otherwise for the support and maintenance of the poor in the parish," while they hold their appointments ; and from being, directly or indirectly, " concerned in any contract relating thereto," under a penalty of 100?. And this enactment was held to render it illegal for a farmer to supply the produce of his lands to the poor of the parish of which he was churchwarden, even at a fair market price. (/) But it did not extend to the case of a parish officer doing work in the workhouse, and supplying materials, incidentally, to such work ; (jf) nor to that of the supply of goods by such officer to an individual pauper, upon a particular occasion, but only to cases in which goods were supplied to the workhouse and the poor generally. (h~) It would appear, however, that now, by virtue of the 4 & 5 Will. 4, c. 76, s. 77, a contract for the supply of goods by a parish officer, even to an individual pauper, is prohibited, (i) The 59 Geo. 3, c. 12, s. 17, enacts, that the churchwardens and overseers of a parish shall take and hold, in the nature ,, r , Empowered of a body corporate, for and on behalf of the parish, to take and ,,,.,!• , , , , , • , hold lands all buildings, lands, and tenements belonging to the for the parish. (&) This statute, however, gives them power to hold lands, &c, not as a general, but as a special corporation ; and it applies to those cases only where the rents are applicable solely to parochial purposes. And, accordingly, where the demise was to Churchwardens. The spiritual court has 4 B. & C. 462. In what cases the legal only jurisdiction to enforce the delivery of estate does not vest in the churchwardens the accounts, not to decide on the items, and overseers under the act ; Churchward- Leman v. Goulty, 3 T. E. 3. ens of Deptford v. Sketchley, 8 Q. B. 394 ; (e) See West a. Andrews, 1 B. & C. Rumhall v. Munt, lb. 382. The estate of 77. the churchwardens, &c, under this act, is (/) Popeu. Backhouse, 8 Taunt. 239. not divested by the 5 & 6 Will. 4, c. 69. (g) Barber v. Waite, 1 A. & E. 514. Doe d. Norton v. Webster, 12 A. & E. 442. (h) Proctor v. Manwaring, 3 B. & Aid. The 59 Geo. 3, c. 12, s. 17, does not apply 145 ; Henderson v. Sherborne, 2 M. & W. to copyholds. Doe d. Bayley v. Foster, 3 236. C. B. 215. Any one churchwarden or (i) See Henderson v. Sherborne, 2 M.& overseer may authorize a distress for rent W. 236. under this act. Gonldsworth v. Knights, (k) What constitutes the body corporate 11 M. & W. 337. intended by the act ; Woodcock v. Gibson, 3.98 CONTRACTS WITH PARISH OFFICERS. the churchwardens and overseers, and the surveyors of highways, it was held that the lessees were to be considered as having taken the land on their personal responsibility, and that they were in- dividually liable for the rent. (I) A lease granted bv churchwardens alone, is void under this statute, (m) And in the case of a demise to churchwardens and overseers, it is not necessary under this statute, to show that they accepted such demise by an instrument under a common seal ; but the property will vest in them on behalf of the parish, merely by their assent and entry, (n) 4. The surveyor of a turnpike road, employed by and acting for „ the commissioners, is not personally liable to parties who surveyors *■ J L of high- perform works in repairing the roads ; for such surveyor is the mere servant of the commissioners, (o) Nor can a surveyor of highways maintain an action against the late surveyor, until his accounts have been settled, and allowed or disallowed in the manner pointed out by the 13 Geo. 3, c. 78, s. 48. O) 5. And by the 26 & 27 Vict. c. 61, s. 1, waywardens appointed ,_. under the 25 & 26 Vict. c. 61, are forbidden to contract, Way- wardens ap- either directly or indirectly, in their own names or in pointed under ■; . 25 & 20 the name ot any other person, tor the l'epair ot any road, or for any other work to be executed under the provisions of that act, within the parish for which they are way- wardens, or within any other parish in the same district. (/) Uthwatt v. Elkins, 13 M. & W. 772. (o) Pochin v. Powley, 1 Bl. 670. (m) Phillips v. Pearce, 5 B. & C. 433. (p) Hendebourck v. Langton, 10 B. & (n) Smith v. Adkins, 8 M. & W 362, C. 546 ; S. C. 3 P. & C. 566. 371. CHAPTER III. OF THE SUBJECT-MATTER OF CONTRACTS. Parties are allowed the fullest latitude with regard to the sub- ject-matter of their contracts. The law, indeed, requires that there shall be nothing illegal in the consideration, or in the thing which is to be done or omitted ; but, subject to this exception, there is no restriction on the liberty of contracting. The agreement may relate to a past, a present, or a future transaction : (a) it may have ref- erence to any description of property, right, or duty ; and, in gen- eral, it forms no ground of objection to a contract, that the subject- matter is even trifling, unimportant, or ridiculous. (5) SECTION I. Contracts respecting Real Property. 1. Agreements for the Purchase of Meal Property. 1. In general. 2. How they are affected by the statute of frauds. 3. Of an action by the vendor against the vendee on a contract to purchase real property. 4. Of an action by the vendee against the vendor, upon such contract. 2. Contracts between Landlord and Tenant. 1 . To take, assign, and surrender prem- ises. 1. When an instrument amounts to a demise, or to a contract to let in futuro. 2. When the letting must be in writ- ing, under seal. 3. Of a tenancy from year to year. 4. Of the assignment or surrender of a term. 5. Of the tenant being estopped from disputing the landlord's title. 2. Of the tenant's liability to repair. 3. Of taxes as between landlord and ten- ant. (a) F. N. B. 145 a; Plowd. 308 a; Com. Dig. Covenant, (A. 1). 81. (6) See post, tit. Wagers ; 1 Pothier, 400 SUBJECT-MATTEK OF CONTRACTS. 4. Of notices to quit. 1. When necessary. 2. By whom to be given. 3. To whom. 4. When they should expire. 5. Form of, in other respects. 6. Effect of. 7. How waived. 5. Of fixtures. 1. In general. 2. Between landlord and tenant. 1. Independently of contract. 2. By contract. 3. Between outgoing and incoming tenants. 6. Of away-going crops. 7. Of the common count for use and oc- cupation. 1. Agreements for the Purchase of Ileal Property. 1. In General. 1. It is said by Sir Edward Sugden, (c) that incapacity to pur- chase real property is, by the rules of law and equity, Incapacity to rrj'j ^ j ' purchase at of three different kinds : 1st, Absolute ; 2dly, An in- capacity to hold, although not to purchase ; and 3dly, To purchase, except sub modo. Under the first head are classed the parishioners or inhabitants of any place ; or churchwardens, who, by common law, and church- were incapable of purchasing lands by those names ; ( (n) Per Cottenham C. Robinson *-, 7 Wallace, 559. The court of North Car- Wall, 11 Jur. 577, 578. See, also, per Cur. olina, in Smith v. Greenlee, 2 Dev. 116, Warlow v. Harrison, 1 E. & E. 295, 316; while sustaining the general doctrine that Thornett v. Haines, supra; Meadows v. a sale may be avoided when made to Tanner, 5 Madd. 37 ; [Cutts u. Salmon, one in behalf of an association of bidders 16 Jur. 623 ; Lord Cranworth in Morti- designed to stifle competition, at the same mer v. Bell, L. R. 1 Ch. Ap. 13 ; Dim- time concede that this rule would not ap- mock v. Hallett, L. R. 2 Ch. Ap. 26; ply to an association shown to be formed Story Sales (4th ed.), 482, and notes; for honest and just purposes, as in the Green v. Baverstock, 14 C. B. N. S. 204. case of a union of several persons formed But where the auctioneer stated that the on account of the magnitude of the sale, sale was without reserve, and at the same or where the quantity offered to a single time sfated that the parties interested in bidder exceeded the amount which any the estate had liberty to bid, Turner L. one individual might wish to purchase on J. said, " if the purchaser knows that the his own account. In Phippen o. Stick- parties interested have liberty to bid, he ney, 3 Met. 387, 388, which was de- cannot be entitled to be discharged on the cided on similar principles, it was held ground that they have bid against him." that an agreement by two or more persons, Dimmock v. Hallett, 2 Ch. Ap. 27. See that one of them only will bid at an auc- Towle u. Leavitt, 23 N. H. 360. At law, tion of property, and will become the pur- in the absence of a stipulation expressly chaser for the benefit of them all, is ille- reserving the vendor's right to bid, the gal, if it be made for the purpose of pre- employment of » single puffer would of venting competition at the biddings and itself vitiate the sale, even though it was depressing the price of the property below not advertised as without reserve. See the fair market value ; but that such an the remarks of Lord Cranworth in Morti- agreement is not illegal, if the purpose of mer v. Bell, L. R. 1 Ch. Ap. 13 ; Warlow it be to enable each of the parties to be- v. Harrison, 6 Jur. N. S. 66 ; Mainprice v. come a purchaser, when he desires a part Westley, 11 Jur. N. S. 975 ; S. C. 6 B. & of the property offered for sale, and not S. 420. Exceptions have been made in the whole lot ; or if the agreement be for cases where it did not appear that the pur- any other honest and reasonable purpose, chaser was induced by the puffing to bid 410 SUBJECT-MATTER OF CONTRACTS. And now, by sect. 5 of the above statute, it is enacted ; that the particulars or conditions of sale should state whether the land will be sold without reserve ; and that if it is stated that the land will be sold without reserve, or to that effect, it shall not be lawful for the seller to employ any person to bid at such sale, or for the auc- tioneer to take knowingly any bidding from any such person. And by sect. 6 it is enacted ; that when any sale by auction of land is declared, either in the particulars or conditions of sale to be subject to a right for the seller to bid, it shall be lawful for the seller, or any one person on his behalf, to bid at such auction, in such manner as he may think proper. And the effect of these enactments has been held to be : first that the particulars or conditions of sale must state whether there is a reserved price or not : and, secondly, that, if they do state that there is a reserved price, they must also state that a right to bid is reserved, otherwise it will not be lawful for the vendor to em- ploy any person to bid on his behalf, (o) And it seems that, where an auctioneer puts up property for sale without disclosing his principal, and upon a condition auctioneer that the sale shall be without reserve, he contracts with thiscondi- the highest bond fide bidder that it shall be so ; and that if this contract be broken, such bidder has a right of action against the auctioneer. (jt>) 2. Of the Statute of Frauds, as it affects Contracts for the Sale of Real Property. 1. By the statute of frauds, 29 Car. 2, c. 3, s. 1, it is enacted _ . . . that " all leases, estates, interests of freeholds, or terms of Provisions of . ' J " / . the statute of years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in ivriting and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only ; and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect ; any consideration for making any such parol leases or estates notwithstanding." more than the value of the property, or (o) Per Lord Romilly M. R. Gilliat v. more than he had previously determined Gilliat, L. Rep. 9 Eq. 60. to bid. Tomlinson v. Savage, 6 Ired. Eq. (p) Warlow v. Harrison, 1 E. & E. 295 ; 430.] Mainprice v. Westley, 6 B. & S. 420. SALE OF REAL PROPERTY. 411 The second section excepts " all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two-third parts, at the least, of the full improved value of the thing demised." The third section enacts, " that no leases, estates, or interests, either of freehold, or terms of years, or any uncertain interest, not being copyhold, or customary interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall at any time be assigned, granted, or sur- rendered ; unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorized by writing ; or by act or opera- tion of law." And by the fourth section it is enacted, amongst other things, that " no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some mem- orandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." (^) (?) As to the general construction of Lent v. Padelford, 10 Mass.j230 ; Hawkins this statute, see Sugden V. & P. (8th Am. v. Chase, 19 Pick. 502 ; Ivory v. Murphy, ed.) 121-123, and per Littledale J. Smith 36 Missou. 534; Ide v. Stanton, 15 Vt. v. Surman, 9 B. & C. 571. [The authority 687; Adams v. McMillan, 7 Porter, 73 ; of the agent in this case need not be in Eidgway v. Wharton, 3 De G., M. & G. writing. Johnson v. Dodge, 17 111. 433 ; (Am. ed.) 697, note (1) ; Ires v. Hazard, ante, 99, 276 ; 1 Sugden V. & P. (8th Am. 4 R. I. 14 ; Lowry v. Mehaffey, 10 Watts, ed.) 145, and note (a) ; Story Agency, § 387 ; De Cordovan. Smith, 9 Texas, 129; 50 ; Long v. Hartwell, 5 Vroom (N. J.), Lansing v. Cole, 3 Green Ch. 229 ; Dresel 116; Blacknall v. Parish, 6 Jones Eq. 70; v. Jordan, 104 Mass. 407 ; Hunter v. Gid- Heard v. Pilley, L. R. 4 Ch. Ap. 548; dings, 97 Mass. 41. In New York, a con- Alna v. Plummer, 4 Greenl. 258 ; Doty v. tract for the sale of land is void, unless the Wilder, 15 III. 407 ; 2 Kent, 540. The contract, or a note, or memorandum of it statute requires the writing to be signed in writing, is signed by the party by whom only by the person to be charged ; and it the sale is to be made. Burrell v. Root, may be enforced against him, although 40 N. Y. 498; Champlin v. Parish, 11 the other party did not sign it. 1 Sugden Paige, 405. As to the form and signature V. & P. (8th Am. ed.) 129, notes (6) and of the memorandum required, and what (c 3 ) ; 2 Kent, 510, and note ; Shirley v. will be sufficient to satisfy the demands of Shirley, 7 Blackf. 452 ; Higdon v. Thomas, the statute of frauds, see 1 Sugden V. 1 H. & Gill, 139; Getchell v. Jewett, 4 & P. (8th Am. ed.) 128 et seq., where the Greenl. 350; Barstow v. Gray, 3 Greenl. subject is treated at length and the cases 409 ; Douglass v. Spears, 2 Nott & McC. cited and considered ; Morton v. Dean, 207; Davis v. Shields, 26 Wend. 341; 13 Met, 385,] 412 SUBJECT-MATTER OF CONTRACTS. 2. The 1st and 2d sections of the above statute appear to relate chiefly to the actual and immediate creation of a Effect of. J title to lands ; the 3d to the assignment or surrender of a title already created ; and the 4th to contracts for the future creation of a title to lands, or of any interest in or concerning them ; that is, not merely to contracts relative to houses or lands, in the common acceptation of those terms ; but also to agreements the subject-matter of which partakes of the realty, or creates an interest therein. Thus, an agreement to convey an equity of redemption in land What con- must be in writing ; for a court of equity treats the equity wtthfnthe °^ redemption as the land itself, or at all events as an statute, as interest in land. (r~) So an agreement between the creating an v y D interest in plaintiff and the defendant, that if the plaintiff, the tenant of a farm, would surrender her tenancy to her landlord, and would prevail on her landlord to accept the defendant as his tenant in place of the plaintiff, he, the defendant, would pay the plaintiff, 100Z. as soon as he should become tenant of the land, has been held to be a sale of an interest in land within the mean- ing of the statute, (s) So, an agreement by the defendant the landlord of a house, to put certain furniture into the house, in con- sideration that the plaintiff would become tenant thereof, has been held to be an agreement for an interest in land within the stat- ute, (t) So, where the plaintiff agreed to let a house to the de- fendant, and to sell him certain furniture and fixtures therein, and to make certain alterations and improvements in the house ; and the defendant agreed to take the house, and to pay for the furni- ture, fixtures, and alterations ; it was held this was an agreement relating to an interest in land within the statute. («) So, an agree- ment to sell a debt secured by bond, and also by a mortgage of land, has been held to be a contract for the sale of an interest in land within the statute. (i>) So, an agreement between two or more persons, to become partners in a colliery, which was to be demised upon royalties, and which royalties were to be divided among them in certain proportions, has been held to be within the statute, (w) And it may be stated, generally, that wherever the (r) Per Cur. Massey ». Johnson, 1 (() Mechelen v. Wallace, 7 A. & E. 49. Exch. 241, 255. («) Vaughan v. Hancock, 3 C. B. 766. (s) Cocking v. Ward, 1 C. B. 858, 867 ; («) Toppin v. Lomas, 16 C. B. 145. Kelly v. Webster, 12 C. B. 283 ; Smart v. (w) Caddick v. Skidmore, 27 L. J. C. Harding, 15 C. B. 652; Foquet v. Moor, 153 ; [S. C. 2 De G. & J. 52 (Am. ed.) 7 Exch. 870. note (1). See 1 Lindley Partn. (Eng. ed. SALE OF REAL PROPERTY. 413 conferring of an interest in land by one party is the consideration for the promise of the other, the agreement between them must be in writing ; (x) even although, as it seems, the party agreeing to confer such interest may not, at the time, have been possessed of any interest in the land in question, (y) It is likewise settled that a sale of lands, even by public auction, is within the statute of frauds. (2) But the auctioneer g a i e by or his clerk may be the agent of both parties ; and the auction - signature of either to an entry in the auctioneer's book, or to a mem- orandum stating the terms of a contract and the parties thereto, or which refers to the particulars or conditions of sale, or is in- dorsed thereon, will satisfy the act. (a) I860) 82 ; Dale v. Hamilton, 5 Hare, 369 ; Smith v. Burnham, 3 Sumner, 435, 458, 471 ; Burrel v. Taintor, 4 Conn. 568; Fall Eiver Whaling Co. v. Borden, 10 Cush. 458 ; Gray v. Palmer, 9 Cal. 616 ; Black w. Black, 15 Geo. 445 ; Patterson v. Grace, 10 Ala. 444 ; Sergeant J. in Hale v. Henrie, 2 Watts, 145, 147 ; Tucker J. in Wheatley o. Calhoun, 1 2 Leigh, 264 ; Thorn v. Thorn, 11 Iowa, 146 ; Lesley v. Rosson, 39 Miss. 368 ; 1 Sugden V. & P. (8th Am. ed.) 127. A parol agreement to purchase land jointly and divide it has been held to be within the statute. Hen- ley v. Brown, 1 Stewart, 144. So, a parol agreement to procure another to convey land. Gray v. Patton, 2 B. Mon. 12. But a parol promise to pay to another a portion of the profits made by the prom- isor in a purchase and sale of real estate is not within the statute ; and if it is founded on a sufficient consideration, may be enforced by action. Trowbridge v. Wetherbee, 11 Allen, 361. See Wether- bee v. Potter, 99 Mass. 354.] [x) See Buttemere v. Hayes, 5 M. & W. 456 ; Earl of Falmouth v. Thomas, 1 C. &M. 89 ; and cases cited supra. (y) Horsey u. Graham, L. Rep. 5 C. P. 9. (2) Walker v. Constable, 1 B. &P. 306 ; White v. Proctor, 4 Taunt. 209; 3 V. & B. 57 ; Kenworthy v. Schofield, 2 B. & C. 947 ; Blagden v. Bragbear, 12 Ves. jun. 466 ; [1 Sugden V. & P. (8th Am. ed.) 42, 148 ; 2 Kent, 540 ; Morton v. Dean, 13 Met. 385 ; Simonds v. Catlin, 2 Caines, 61, 64; People v. White, 6 Cal. 75 ; Jack- son v. Catlin, 2 John. 248 ; Catlin v. Jack- son, 8 John. 531.] Sales of property in chancery, under a decree of the court, are not within the statute. Attorney General v. Day, 1 Ves. 218 ; [Fulton v. Moore, 25 Penn. St. 468 ; Smith v. Arnold, 5 Mason, 420 ; Kent J. in Simonds v. Catlin, 2 Caines, 64; 1 Sugden V. & P. (8th Am. ed.) 148; but sales, otherwise made by authority of law, are within the statute. Bent v. Cobb, 9 Gray, 397 ; Sanborn v. Chamberlin, 101 Mass. 416 ; Simonds v. Catlin, 2 Caines, 61 ; Robinson v. Garth, 6 Ala. 204 ; Evans v. Ashley, 8 Missou. 177.] (a) Bartlett v. Purnell, 4 A. & E. 792 ; 1 Sugden V. & P. 189, 190 ; White v. Proc- tor, 4 Taunt. 209 ; Emmerson v. Heelis, 2 Taunt. 38 ; [Tallman v. Franklin, 4 Ker- nan, 584 ; Cleaves v. Foss, 4 Greenl. 1 ; Jenkins v. Hogg, 2 Const. Ct. 821 ; Gor- don v. Sims, 2 McCord Ch. 1 64 ; Pugh v. Chesseldine, 11 Ohio, 109 ; Baptist Church v. Bigelow, 16 Wend. 28; Burke v. Haley, 2 Gilman, 614 ; Hart v. Woods, 7 Blackf. 568; McComb v. Wright, 4 John. Ch. 659; 2 Kent, 540; Buckmaster v. Har- rop, 7 Ves. (Am. ed.) 341, note (c) ; Ben- net v. Carter, Dudley (S.,.C), 142 ; Mead- ows v. Meadows, 3 McCord, 458 ; Adams v. M'Millan, 7 Porter, 73 ; Entz v. Mills, 1 McMullan, 453 ; Brent v. Green, 6 Leigh, 16 ; Doty v. Wilder, 15 111. 407. In Gill v. Bicknell, 2 Cush. 358, Mr. Chief Jus- 414 SUBJECT-MATTER OF CONTRACTS. In like manner, an agreement for prima vestura, or growing Sale of grow- grass, whereby the exclusive right to the land is obtained for a limited time, and for given purposes, has been vng crops. tice Shaw, in reference to this point, said : "It is now well settled, by authorities, that a sale of real estate at auction, where the name of the bidder is entered by the auctioneer, or by his clerk, under his di- rection, on the spot, and such entry is so connected with the subject and terms of the sale, as to make a part of the memo- randum, is a contract in writing, so as to take the case out of the statute of frauds. The true reason probably is, that a sale at auction, being open and risible, and in presence of witnesses, either competitors, or persons present and closely watching the proceeding, there is less danger of fraud and perjury, in proving the making and terms of the contract, and so the main reason for requiring a memorandum in writing does not exist. The technical ground is, that the purchaser, by the very act of bidding, connected with the usage and practice of auction sales, loudly and notoriously calls on the auctioneer or his clerk to put down his name as the bidder, and thus confers an authority on the auc- tioneer or clerk to sign his name, and this is the whole extent of the authority. But this presupposes that the name is thus written on a book or memorandum pre- pared, under a caption stating the subject- matter and terms of the sale ; or on the catalogue, advertisement, or written or printed conditions of sale ; or so definitely referring thereto, as to make the paper re- ferred to a part of the memorandum. The bid is in the nature of an affirmative answer; and it is necessary to consider the proposal, in order to understand the effect of the answer. Both together may constitute a contract, or the memorandum of a contract, from which its substance and terms may be gathered. In a recent case in this court, it was held, that the putting down the name of a bidder was not a suffi- cient memorandum, because it was not under such a caption, and did not so defi- nitely refer to any catalogue, advertise- ment, written or printed, or conditions of sale, as to make them a part of the mem- orandum. Morton v. Dean, 13 Met. 385. Commonly, the advertisement expresses the property to be sold, and if not the names of the owners, the actual owners, represented by the auctioneer, together with the time and other terms of payment ; so that when the name of the bidder, and the price are added, the whole constitutes the elements and substance of a complete contract. But it may be asked, a contract between whom 1 Obviously, the owner or owners on one side, and the purchaser or purchasers on the other. Prima facie, therefore, the auctioneer's memorandum, or a memorandum by the bidder, in his own name, constitutes such a contract." But when the auctioneer is himself the vendor, having a greater or less interest in the contract, he is not authorized to sign for the purchaser so as to take the case out of the statute ; as where a guardian acts as auctioneer in selling land of his ward under license of court. Bent v. Cobb, 9 Gray, 397. See, also, Smith v. Arnold, 5 Mason, 414. But the officer's return upon an execution, in the performance of his official duty, in a matter in which he has no personal interest, and which would by statute be valid even if made after the re- turn day, is a sufficient memorandum. Sanborn v. Chamberlin, 101 Mass. 413, 416 ; Bemington v. Linthicum, 14 Peters, 92 ; Hand v. Grant, 5 Sin. & G. 508. The sheriff is the agent of the purchaser, and may sign his name to a memorandum of the sale, so as to satisfy the statute. Bobinson u. Garth, 6 Ala. 204. See Wiley v. Eobert, 31 Missou. 212. For instances of memorandums that have been held sufficient, and the requisites thereof, see ante, 93-99, and notes ; 1 Sugden V. & P. (8th Am. ed.) 130 et seq. ; Morton v. Dean, 13 Met. 385 ; Fessenden v. Mussey, 11 Cush. 127; Tallman u. Franklin, 4 Kernan, 584; S. C. 3 Duer, 395. In SALK OF EEAL PROPERTY. 415 held to be within the statute. (J) And so has a contract for the sale of growing hops, (c) or growing turnips, (d) in which no time was stipulated for their removal, and where the parties did not treat the land as a mere warehouse for the hops and turnips, (c? 1 ) But where potatoes, in a matured state of growth, were sold by parol, and it was agreed that they should be taken cases on this immediately, the court held that this was not a con- su ■ )ec ' tract which conferred any interest in the land ; as the parties con- templated nothing but the mere sale of a personal chattel, (e) So, where there was a sale, at so much per acre, of potatoes stated to be then growing, and the purchaser was to take them away, but no time was appointed for so doing ; the court held, that the contract conferred no exclusive right to the land, and was not within the 4th section. (/) So, in Evans v. Roberts, (g~) a parol agreement to purchase a crop of potatoes, to be turned up by the seller, was held not to be within the 4th section, although the crop was in a growing state at the time of the sale. And Littledale J. said, that a sale of any produce of the earth, reared by labor and ex- pense, whether it were in state of maturity or not, provided it were in actual existence at the time of the contract, was not a sale of an interest in or concerning land within the 4th section of the statute. (K) So, in Smith v. Surman, (i) where it appeared that the plaintiff, who was the owner of trees growing on his land, verbally agreed with the defendant to sell him the timber at so much per foot ; and that the plaintiff had cut some of the trees when the bargain was made, and was about to cut, and by the contract be- came bound to cut, the remainder : the court held that this was substantially a contract, not for growing trees, but for timber the White v. Watkins, 23 Mis. (2 Jones) 423, (c) Waddington u. Bristow, 2 B. & P. it was held that a memorandum made by 452. But probably such a case would the auctioneer a month after the sale was now be decided differently. Per Parke B. not sufficient.] Kodwell v. Phillips, 9 M. & W. 501, 503. (b) Crosby v. Wadsworth, 6 East, 602 ; {d) Emmerson v. Heelis, 2 Taunt.*38. Carrington v. Roots, 2 M. & W. 248; [d 1 ) [But see as to both hops and tur- [Buck v. Pickwell, 27 Vt. 157; Howe v. nips, 1 Sugden V. & P. (8th Am. ed.) Batchelder, 49 N. H. 208. The case of 126 ; Dunne v. Ferguson, 1 Hayes, 541 ; Crosby v. Wadsworth was questioned in Prank v. Harrington, 36 Barb. 415.] Prear v. Hardenburgh, 5 John. 272. See, (e) Parker v. Staniland, 11 East, 362. also, Mumford u. Whitney, 15 Wend. (/) Warwick v. Bruce, 2 M. & S. 205. 386, 387 ; Cutler v. Pope, 13 Maine, 379, (?) 5 B. & C. 829. 380. In this last case, it was held, that (A) And see Sainsbury v. Matthews, 4 grass already grown, and in a condition to M. & W. 343. be cut, may be sold by parol.] (i) 9 B. & C. 561. 416 SUBJECT-MATTER OF CONTRACTS. produce of the trees when severed from the freehold. And in the same case, Littledale J. expressed himself as being of opinion, that even if the contract had been for the sale of the trees, with a specific liberty to the vendee to enter the land to cut them, such a contract would not have given him an interest in the land within the meaning of the statute. (_/) In Watts v. Friend, (k~) A. agreed to supply B. with a quantity 1 of turnip seed, and B. agreed to sell the crop of seed produced therefrom at Is. per bushel : and this was held to be «ubstantially a contract for the sale of goods within the 17th section, and not a contract conferring an interest in land under the 4th section ; "for," as was observed by Lord Tenterden C. J., "the thing agreed to be delivered would, at the time of delivery, be a personal chattel." (A 1 ) (j) 9 B. & C. 573 ; [Iullmore v. Hew- lett, 48 N. Y. 569; White v. Foster, 102 Mass. 375, 378 ; Claflin v. Carpenter, 4 Met. 58.3 ; Giles v. Simonds, 15 Gray, 441 ; Spurr v. Andrew, 6 Allen, 420; Drake v. Wells, 11 Allen, 141 ; Nettleton v. Sikes, 8 Met. 34 ; Byasse u. Reese, 4 Met. (Ky.) 372; Erskine v. Plummer, 7 Greenl. 447 ; Cain v. M'Guire, 13 B. Mon. 340 ; Edwards v. Grand Trunk R. R. 54 Maine, 105. Such license to enter on the land of another, so far as it is executed by the severance of the timber or other growth of the soil from the freehold in execution of the license, is irrevocable. The thing severed becomes personal property, the title to which is vested in the vendee abso- lutely, and the rule applies that where chattels belonging to one person arc placed or left on the land of another, with the permission of the latter, the owner of the chattels has an implied irrevocable license to enter and remove them. Drake u. Wells, 11 Allen, 141, 142, 143; Giles v. Simonds, 15 Gray, 441 ; Nettleton v. Sikes, 8 Met. 34 ; Heath v. Randall, 4 Cush. 195; McNeal v. Emerson, 15 Gray, 384; Russell v. Richards, 1 Fairf.429; S. C. 2 Fairf. 371 ; Smith v. Benson, 1 Hill (N. Y.), 176; Mumford v. Whitney, 15 Wend. 380 ; Barnes v. Barnes, 6 Vt. 388; White v. Foster, 102 Mass. 375, 378; Fitch v. Burk, 38 Vt. 683. But the cases upon this subject are* far from being har- monious in their conclusions from similar facts. It has recently been decided in New Hampshire, upon a review and care- ful consideration of the conflicting decis- ions in England and the United States, that an agreement for the sale of growing trees, with a right at any future time, whether fixed or indefinite, to enter upon the land and remove them, does convey an interest in the land, and is within the statute of frauds, and therefore must be in writing. Kingsley v. Holbrook, 45 N. H. 313 ; Howe v. Batchelder, 49 N. H. 204 ; Putney v. Day, 6 N. H. 430 ; Olmstead c. Niles, 7 N. H. 522 ; Ochington v. Richey, 41 N. H. 275. The same doctrine was maintained in Vermont, in Buck v. Pick- well, 27 Vt. 157. See, also, to the same effect, Sterling v. Baldwin, 42 Vt. 306 ; El- lison v. Brigham, 38 Vt. 64 ; Fitch v. Burk, 38 Vt. 683 ; Green v. Armstrong, 1 Denio, 550 ; Warren v. Leland, 2 Barb. 614, 618 ; Dubois v. Kelly, 10 Barb. 496 ; Pierrepont o. Barnard, 5 Barb. 364 ; Frank v. Har- rington, 36 Barb. 415 ; Baldwin v. Palmer, 10 N. Y. 232 ; Yeakle u. Jacob, 33 Penn. St. 376 ; Huff v. McCauley, 53 Penn. St. 206 ; Pattison's Appeal, 61 Penn. St. 294; Harrell v. Miller, 35 Miss. 700. See, also, 1 Sugden V. & P. (8th Am. ed.) 126, note (h) 10 B. & C. 446. (i 1 ) [See Pitkin v. Noyes, 48 N. H. 294, 303.1 SALE OF REAL PROPERTY. 417 The case of Scorell v. Boxall (J) was an action of trespass for cutting and carrying away underwood. The plaintiff had purchased it whilst standing, and was to cut it down ; but it did not appear when it was to be cut ; or what state it was in as to growth at the time of the contract ; or whether the price depended on the quan- tity produced. But still the plaintiff was nonsuited, on the ground that the contract was within the 4th section of the statute ; and Hullock B. drew a distinction between crops and other articles which are raised by the industry of man, and are emblements ; and things which give no annual profit, and go to the heir, as trees, (m) It is difficult to reconcile all the decisions and dicta on this sub- ect ; there being, as has been said, no general rule laid General rule down in any one of the cases that is not contradicted f r e m°these by some other, (n) But thus much appears to be now cases - settled, viz. that, with respect to emblements or fruotus industriales, a contract for the sale of them while growing, whether they have arrived at maturity or not, and whether they are to be taken ^off the ground by the buyer or the seller, is not a contract for the sale of an interest in land ; (n 1 ) but that a contract for the sale of a crop which is the natural produce of the land, if it be unripe at the (I) 1 Y. & J. 396. Sawyer, 9 Cowen, 39 ; Whipple v. Foot, 2 (m) The learned baron also questioned John. 422 ; Stewart o. Doughty, 9 John, the dictum of Treby C. J. in 1 Ld. Raym. 112. An agreement for the sale of mul- 182, that a sale of timber, growing upon berry-trees, growing in u nursery and land, need not be in writing, because it is raised to he sold and transplanted, to be a bare chattel ; to which Powell J. is re- delivered on the ground where they are ported to have agreed. This dictum, how- growing, upon payment therefor being ever, was cited without disapprobation by made, is not a contract for the sale of an Holroyd J. in Mayfield v . Wadsley, 3 B. interest in or concerning lands &c. within & C. 357, 364. the statute of frauds in Massachusetts. (n) Per Lord Abinger, Rodwell v. Phil- Whitmarsh v. Walker, 1 Met. 313 ; Miller lips, 9 M. & W. 501, 505. u. Baker, 1 Met. 27. See Mumfordv. Whit- (n 1 ) [Buck v. Pickwell, 27 Vt. 157; ney, 15 Wend. 380; Adams v. Smith, Dunne v. Ferguson, 1 Hayes, 541 ; Bry- Breese, 221 ; Kingsley v. Holbrook, 45 N. ant v. Crosby, 40 Maine, 9; Bricker u. H. 319; Bull u.Griswold, 19 HI. 631; Ad- Hughes, 4 Ind. 146 ; Sherry v. Picken, 10 dison Cont. 92, 93. And the mere license Ind. 375; Marshall o. Ferguson, 23 Cal. to come upon the land for the purpose of 65 ; Howe v. Batchelder, 49 N. H. 208. gathering and securing the crop, which is Wheat growing is a mere chattel, and the incident to such a contract, is not a sale property in it will therefore pass by parol, of a right concerning land, within the and without writing, the statute of frauds meaning of the statute of frauds. Addison respecting the sale of an interest in land, Cont. 92, 93 ; Whitmarsh v. Walker, 1 not applying to such a case. Austin w. Met. 313; Jones v. Flint, 10 Ad. & El. 753.] vol. i. 27 418 SUBJECT-MATTER OF CONTRACTS. time of the contract, and is to be taken off the land by the buyer, is a contract for the sale of an interest in land within the stat- ute, (o) A mere license to use land, such as a parol agreement for liberty H . to stack coals on a close for seven years, with the sole license to use use of that part of the close during the seven vears ; (p) land is ' . . ' ., within the or to stack hay on land tor a convenient time until sold, (5) has been held not to be a contract concerning land within the 4th section of the statute, (y 1 ) So a parol license to put a skylight over the defendant's area, which prevented the light and air from coming to the plaintiff's house through a window, has been held not to be within the statute of frauds as relating to an interest in land, (r) But, although a parol license to enter upon land may be an excuse for a trespass till such license is counter- manded, it is clear that such a license cannot be made available in any way as a contract, (s) And it would appear to be now well (0) Jones c. Flint, 10 A. & E. 753 ; Rodwell u. Phillips, 9 M. & "W. 501 ; Sainsbury v. Matthews, 4 M. & W. 343 ; Carrington v. Roots, 2 M. & W. 248 ; 1 Wms. Saund. 276 e; [Buck v. Pickwell, 27 Vt. 157, 163; Kingsley u. Holbrook, 45 N. H. 318, 319 ; Green v. Armstrong, 1 Denio, 550 ; Andrew o, Newcomb, 32 N. Y. 417 ; 1 Sugden V. & P. (8th Am. ed.) 125, 126, and notes.] (p) Wood e. Lake, Say. 3 ; reported also 13 M. & W. 848, note (a) ; and see Rex v. The Inhabitants of Horndon, 4 M. & S. 262, where a personal license to inclose a piece of waste and erect a cottage, was held not to be a grant of an interest in land; and see Taylor e. Waters, 7 Taunt. 384. (q) Webb v. Paternoster, Palm. 71 ; Poph. 151 ; and S. C. 2 Roll. R. 143, 152. {q l ) [A license to do a certain act or series of acts on the land of another, does not convey any interest in the land, but simply a privilege to be exercised upon the land. It may be either written or oral. The statute of frauds does not apply to such a license in either form. Being founded in personal confidence, it is not assignable ; and it is gone, if the owner of the land who gives the license transfers his title to another, or if either party dies. 3 Kent, 452 ; Houston v. Laffee, 46 N. H. 505 ; Carleton v. Redington, 21 N. H. 305, 306; Cowles v. Kidder, 24 N. H. 364; Harris v. Gillingham, 6 N. H. 11 ; Putney v. Day, 6 N. H. 430 ; Scidensparger o. Spear, 17 Maine, 123 ; Ruggles v. Lesure, 24 Pick. 187; Cook v. Stearns, 11 Mass. 533 ; Stevens o. Stevens, 11 Met. 255 ; Claflin v. Carpenter, 4 Met. 583 ; Drake v. Wales, 11 Allen, 144; Giles v. Simonds, 15 Gray, 441 ; Williams v. Jones, 3 H. & C. 256 ; Yeakle v. Jacob, 33 Penn. St. 376 ; Dark v. Johnston, 55 Penn. St. 164; Bridges r. Purcell, 1 Dev. & Bat. 492; Miller v. Auburn & Syracuse R. P.. Co. 6 Hill, 61 ; Howe u. Batchelder, 49 N. H. 209 ; Fuhr v. Dean, 26 Missou. 116.] (r) Per Lord Ellenborough C. J. Win- ter v. Brockwell, 8 East, 310. (s) Carrington v. Roots, 2 M. & W. 248. [This seems to be the clear result of the authorities. A parol license to enter on land and do certain acts upon it will excuse what would otherwise be a trespass ; but it cannot avail as a contract ic-pecting the land, nor convey any interest in it, or any permanent right to use it. 1 Sugden V. & P. (8th Am. ed.) 123, 124, and notes, and cases cited to this point.] SALE OF REAL PEOPEETY. 419 decided that, in general, an easement upon the land of another cannot be acquired merely by parol license, (t) So that the above cases may be considered, in so far as they support a contrary doc- trine, to be no longer law. (u) An agreement between the defendant and the plaintiff, who kept a boarding-house, that the defendant should pay so Agreement much a year for the board and lodging of himself and ^VTodging. servant, with accommodation for a horse, and that there (() Wood v. Ledbitter, 13 M. & W. 838; Taplin v. Florence, 10 C. B. 744; 20 L. J. C. P. 137 ; Roffey „. Henderson, 17 Q. B. 574 ; Wallis v. Harrison, 4 M. & W. 538 ; Hewlins ». Shippam, 5 B. & C. 222 ; [Morse v. Copeland, 2 Gray, 302, 305; Stevens v. Stevens, 11 Met. 251; Cook v. Stearns, 11 Mass. 533; Carleton v. Redington, 21 N. H. 291 ; Marston u. Gale, 24 N. H. 176; Houston „. Laffee, 46 N. H. 505 ; Howe v. Batchelder, 49 N. H. 209; Prince v. Case, 10 Conn. 375; Mumford v. Whitney, 15 Wend. 380; Selden J. in Selden v. Delaware & Hudson Canal Co. 29 N. Y. 634, 639 ; Carter v. Harlan, 6 Md. 20 ; Ela v. Pennock, 38 N. H. 154 ; Dark v. Johnston, 55 Penn. St. 164 ; Williams v. Jones, 3 H. & C. 256 ; Huff v. McCauley, 53 Penn. St. 206 ; Sei- densparger u . Spear, 17 Maine, 123; Pit- man v. Poor, 38 Maine, 237 ; Moultou v. Taught, 41 Maine, 298 ; Barnes v. Barnes, 6 Vt. 388; Woodward o. Seely, 11 111. 157; Holland v. Hensley, 4 Iowa, 222; Eggleston v. The New York & Harlem R. R. 35 Barb. 163; Sampson v. Burnside, 13 N. H. 264 ; 1 Sugden V. & P. (8th Am. ed.) 124, note (ri 2 ). A right of perma- nently overflowing the land of another, by a mill-dam, to be constructed helow his line, is a hereditament ; and a contract for the sale of it must therefore be in writ- ing. Harris v. Miller, 1 Meigs, 158. But a claim for damages caused by flowing land by means of a mill-dam may be waived by parol. Seymour v. Carter, 2 Met. 520. An oral license to erect and continue a mill-dam on one's land is of no trees from the land, as long as he to whom the license is granted pleases, expires with the life of him who grants it. Putney v. Day, 6 N. H. 430; Prince v. Case, 10 Conn. 375. It must be acted on within a reasonable time. Gilmore v. Wilbur, 12 Pick. 120. A parol license executed can- not be revoked, lb. ; 3 Kent, 451, 452. It seems, that an agreement fixing the boundaries between the two adjoining proprietors of land is binding, when exe- cuted, and is not within the statute of frauds. Boyd v. Graves, 4 Wheat. 502. See Pope i\ Devereux, 5 Gray, 409. This, however, must be in a case where the boundaries are doubtful. Yarborough o. Abernethy, 1 Meigs, 413. An easement cannot be renounced or extinguished by a mere oral agreement between the owner of the dominant and the serviant tenement. Dyer v. Sandford, 9 Met. 395. But an executed oral agreement to discontinue an old way and substitute a new one, is com- petent evidence of a surrender of the old right of way. Pope v. Devereux, 5 Gray, 409. As to the extent to which a license, executory or executed, is irrevocable, 1 Sugden V. & P. (8th Am. ed.) 124, note (ri 2 ), 126, note (»). As to the modes by which a license may be terminated, 1 Sugden V. & P. (8th Am. ed.) 124, note (ri 2 ). As to the effect of the revocation of a license upon the faith of which a party has expended money, or otherwise acted, and his remedy, if any, Houston v. Laffee, 46 N. H. 505, 507, 508, and other cases cited to the point in 1 Sugden V. & P. (8th Am. ed.) 124, note (ri 2 ). As to the legal validity, as against a, subsequent equity doctrine respecting licenses, 1 Sug- grantee of the land. Stevens v. Stevens, den V. & P. (8th Am. ed.) 124, note (ri 2 ).] 11 Met. 251. A parol license, granted by (u) See ante, note ((), above; and 1 the owner of land to another, to take Sugden V. & P. 123, 124. 420 SUBJECT-MATTER OF CONTRACTS. Agreement for a thing collateral to the land, not within the statute. should be a quarter's notice, on either side, to determine the agree- ment, was held not to be within the statute, (x) It has also been decided, that if, after a lease has been granted, the landlord make improvements on the estate, in con- sideration of an agreement by the tenant to pay an ad- ditional sum per annum : this is an agreement collateral to the land, and is good though not reduced into writ- ing, (y) And so it has been held, that an agreement by the landlord with an outgoing tenant, to take the tenant's fixtures at a valuation, is not an agreement relating to an interest in land within the statute. (2) A contract for the sale of railway shares is not within the 4th section of the statute ; (a~) nor, as it seems, is a contract Railway or . . , mining for the sale of shares m a mine worked upon the cost- SD.3X6S- 1 1 • • 1 ^?n book principle. (6) And so a contract which relates merely to the investigation of a Contract as title to land, and provides for the pavment of the costs to investiga- J _ r •' tion of title, of such investigation, is not within the statute, (c) If an entire agreement be made, e. g. for the sale of real estate and of goods, and the agreement as to the land be void under the statute, the agreement as to the goods will also be void, (jl) (c) Per Cur. Jeakes v. White^ 6 Exch. 873, 878. (d) Cooke v. Tombs, 4 Anst. 420. See Hodgson v. Johnson, E., B. & E. 685 ; Entire con- tract, void in part under the statute, is void al- together. (x) Wright v. Stavert, 29 L. J. Q. B. 161. [y) Hoby v. Roebuck, 7 Taunt. 157. See Price v. Ley burn, Gow, 109 ; [Brackett u. Evans, 5 Cush. 79 ; Lowe v. "Winters, 5 Cowen, 263 ; Owen v. Estes, 5 Mass. 330 ; Weld v. Nichols, 17 Pick. 538; Preble v. Baldwin, 6 Cush. 549.] (2) Hallen u. Runder, 1 Cr., M. & R. 266. [See Shaw u. Carbrey, 13 Allen, 464 ; Bostwick v. Leach, 3 Day, 475. So, a parol contract for the sale of improve- ments upon public lands is valid. Zicka- fosse v. Hulick, 1 Morris, 175. See Frear v. Hardenburgh, 5 John. 272; Benedict v. Bebee, 11 John. 145.] (a) Bradley v. Holdsworth, 3 M. & W. 482 ; Puncuft v. Albrecht, 12 Sim. 189. (4) Watson v. Spratley, 10 Exch. 222 ; Powell v. Jessop, 18 C. B. 336; Walker v. Bartlett, in Cam. Scac. lb. 845 ; Curl- ing v. Flight, 12 Jur. 423. It has been held, in Ireland, that a contract for the sale of shares in a mine is within the stat- ute. Boyce v. Green, Batty, 608. Earl of Falmouth i-. Thomas, 1 C. & M. 89 ; Mechelen v. Wallace, 7 A. & E. 49 ; Yaughan v. Hancock, 3 C. B. 766; 1 Sug- den V. & P. 127; [Thayer <-. Rock, 13 Wend. 53 ; Van Alstine u. Wimple, 5 Cowen, 162; Loomis v. Newhall, 15 Pick. 159 ; Crawford u. Morrell, 8 John. 253 ; Forquct v. Moore, 16 Eng. Law &Eq. 466. A contract for the purchase of coal at Philadelphia, and to pay for the freight of the same to Boston, if void by the statute of frauds, as to the sale, is void also and cannot be enforced as to the freight, though the. latter part, if it stood alone, would not beMithin the statute. Irvine v. Stone, C Cush. 508. So, a contract to hire a shop at a certain rent, and to pay the landlord the amount expended in fit- ting it up, has also been held to be indivis- ible. McMullen v. Riley, 19 Law Eep. SALE OF REAL PROPERTY. 421 But where a contract consists of two collateral agreements, one only of which relates to an interest in land, then, if that ..., J ' Ahter, where part of the contract has been executed, the. fact of the the contract is ssvcriibls- whole contract not being in writing, will not preclude an action on the other part, founded on a promise to be performed after such execution, (e) And so, where A., being the occupier of a farm, quitted it in May, and was succeeded in the possession by B. ; and it appeared that A. had sown forty acres with wheat, and that, at a meeting between A. and B. in the previous February, A. asked B. if he would take the forty acres of wheat at 2001., telling him that if he did not he should not have the farm ; and B. said that he would take them ; and a person present then valued the dead stock, and having so done, asked to whom he was to value it ; and B. said it was to be valued to him ; and he then prom- ised to pay A. for the wheat and dead stock on a given day ; and B. actually paid a sum of money on account, and took possession of the farm, the growing wheat, and the dead stock : it was held, in an action for the value of the crops and goods, that the contract for the dead stock was distinct from the contract as to the wheat and the farm ; and therefore, that A. was entitled to recover for the dead stock. (/) So, if a party fell and remove timber, or take away a growing crop, under a void parol contract, he becomes liable, on cases within a new implied contract, as for goods sold ; although he ^^party could not have been sued on the original contract. (V) will be liable & t w on an implied And so, if a party repair premises under a void parol contract. agreement so to do, in consideration of the assignment of a lease, which the other party refuses to assign, an action fcr work and materials may be maintained to recover the value of the repairs actually done. (A) 439. So, a contract to convey land and otherwise valid, may be enforced. Per pay off the incumbrances on it. Duncan Metcalf J. in Irvine v. Stone, 6 Cush. 511 ; v. Blair, 5 Denio, 196 ; Dock u. Hart, 7 Ex parte Littlejohn, 3 Mont., D. & De G. Watts & S. 1.72.] 182 ; Wood v. Benson, 2 Crompt. & Jer. (e) Per Lord Campbell, Hodgson v. 94; Rand v. Mather, 11 Cush. 1; Harman Johnson, E., B. & E. 685, 689; Green v. v. Reeve, 18 C. B. 587 ; Page v. Monks, 5 Saddington, 7 E. & B. 503. Gray, 492.] (/) Mayfield v. Wadsley, 3 B. & C. (g) See lb.; Teall v. Auty, 7 Moore, 357. [So, in all cases where the promise 547 ; Bragg v. Cole, 6 lb. 114 ; Poulter v. is not entire, and the part, which would be Killingbeck, 1 B. & P. 397. void under the statute, can be separated (h) Gray v. Hill, 1 R. & M. 420. from the rest, the part so remaining, if 422 SUBJECT-MATTER OF CONTRACTS. But it would appear, that an agreement by a lessee to transfer his interest in a term not exceeding three years, which is void within the statute as not being in writing, cannot operate as an underlease, (i) At law, part performance of a parol agreement will not exempt Effect of part it from the operation of the statute of frauds, (i 1 ) but uitaMngcon- wnere there is a concluded agreement, although it be thT'statute vo ' c ' w ' tnm tne statute, a court of equity will take it out of the statute, provided it has been partly executed ; as (i) Barrett v. Rolph, 14 M. & W. 348. (i' 1 ) [Adams v. Tovvnsend, 1 Met. 483 ; Norton v. Preston, 15 Maine, 14; Sher- burne a. Fuller, 5 Mass. 138; Kidder v. Hunt, 1 Pick. 328; Griswold u. Messen- ger, 6 Pick. 517 ; Thompson v. Gould, 20 Pick. 134 ; Jackson v. Pierce, 2 John. 223 ; Freeport v. Bartol, 3 Greenl. 340 ; Bariek- man v. Kuydendall, 6 Blackf. 22, 24 ; Ea- ton „. Whitaker, 18 Conn. 222, 231. If, however, lands are actually conveyed in execution of a parol contract, such per- formance will take the case out of the stat- ute, so far as to enable the grantor to recover the consideration promised to be paid by the grantee. Linscott v. M'Intire, 15 Maine, 201 ; Brackett v. Evans, 1 Cush. 79, 82 ; Pomeroy v. Winship, 12 Mass. 523 ; Bowen v. Bell, 20 John. 338 ; Baxter i>. Gray, 14 Conn. 119; Wilkinson v. Scott, 17 Mass. 249 ; Dillingham v. Run- nels, 4 Mass. 400; Hess v. Pox, 10 Wend. 436; Sherburne a. Fuller, 5 Mass. 133; Green v. Saddington, 1 El. & Bl. 503; Nutting v. Dickinson, 8 Allen, 540; Bas- ford v. Pearson, 9 Allen, 387 ; Trowbridge v. Wetherbee, 11 Allen, 361 ; Wetherbee v. Potter, 99 Mass. 362 ; Fiske v. Mc- Gregory, 34 N. H. 414 j.Whitbeck v. Whit- beck, 9 Cowen, 266 ; Fisher v. Wilson, 18 Ind. 133 ; Hodges v. Green, 28 Vt. 358 ; Thayer v. Niles, 23 Vt. 497 ; Morgan v. Bittenbcrger, 3 Gill, 350 ; Thomas v. Dick- inson, 14 Barb. 90 ; Ascutney Bank v. Ormsby, 28 Vt. 721. Otherwise, where the deed of conveyance has been tendered, but not accepted. Lester v. Bartlett 2, Carter, 628. An action may be main- tained at law for expenses incurred by one party, upon the faith of an oral agreement within the statute of frauds, which the other party is unwilling or has rendered himself unable to perform, the latter hav- ing accepted or received the benefit of them. Lane o. Shackford, 5 N. H. 133; Kidder v. Hunt, 1 Pick. 328 ; Richards a. Allen, 17 Maine, 296 ; Lucy i>. Bundy, 9 N. H. 298 ; Reddington v. Henry, 48 N. H. 279 ; Sims v. McEwen, 27 Ala. 184; Ray v. Young, 13 Texas, 550 ; Redfield C. J. in Pierce v. Paine, 28 Vt. 37-39. If money has been paid, it may be recovered back. If labor has been performed, a compen- sation for it may be recovered. If land has been conveyed, the consideration or value of it may be recovered. Basford v. Pearson, 9 Allen, 387, 391, 392 ; Welsh v. Lawson, 32 Miss. 170; Donaldson v. Wa- ters, 30 Ala. 175 ; Lane v. Shackford, 5 N. H. 133 ; Holbrook v. Armstrong, 1 Fairf. 81 ; Cabot v. Ilaskins, 3 Pick. 95 ; Pierce v. Paine, 28 Vt. 37. See Squire v. Whip- ple, 1 Vt. 69 ; Little v. Martin, 3 Wend. 219 ; Shute v. Dorr, 5 Wend. 204; Bur. lingame v. Burlingame, 7 Cowen, 92 ; Ricker u. Kelly, 1 Greenl. 117; Syler v. Eckart, 1 Binney, 378; Lockwood v. Barnes, 3 Hill, 128; King v. Brown, 2 Hill, 485. A contract for the sale of land, though not in writing, is not void but void- able merely. Sims v. Hutchins, 8 Sm. & M. 328; Minns v. Morse, 15 Ohio, 588; Philbrook v. Belknap, 6 Vt. 383 ; Whitney v. Cochran, 1 Scam. 210. See Leroux v. Brown, 12 C. B. 801. While the vendor is able and willing to comply, the pur- chaser can maintain no action to recover back the consideration paid. Duncan t>. SALE OF REAL PROPERTY. 423 where possession has been delivered and taken thereunder, or the like. (/) And the reason of this rule is, that where one of two contracting parties has been induced or allowed by the other to alter his position on the faith of the contract ; it would be a fraud on the other party to set up the invalidity of such contract. (&) But part payment of the purchase-money, is not a part p ar t pay- performance of the contract within this rule. (I) Xase-mo P ney not sufficient. Lastly : it is held in equity, that if a bill be brought for the execution of an agreement not in writing, nor so stated Confessing in the bill, and the defendant put in his answer, con- answe^tobiU fessing the agreement; this will take the case out of Ja k e e q s ^afeout the statute. (w?) of statute. Baird, 8 Dana, 101; Lane v. Shackford, 5 Joliffe, 5 My. & Cr. 167, 177; Nnnn v. N. H. 133 ; Shaw v. Shaw, 6 Vt. 75 Oldham v. Sale, 1 B. Mon. 78 ; Coughlin u. Knowles, 7 Met. 57 ; Sims v. Hutchins, 8 Sm. & M. 328; Collier v. Coates, 17 Barb. 471 ; Cobb v. Hall, 29 Vt. 510 ; Mack v. Bragg, 30 Vt. 357 ; Doe v. Cor- coran, 1 Scam. 209 ; Lefferson v. Dallas, 20 Ohio St. 74 ; Hunter v. Bales, 24 Ind. 299 ; Congdon v. Perry, 13 Gray, 3 ; Crab- tree v. Wales, 19 III. 55. If a party to a Fabian, L. R. 1 Ch. Ap. 35 ; 1 Sugden V. & P. [(8th Am. ed.) 150, 151-157, and notes and cases cited ; Peckham v. Barker, 8 R. I. 17; "Welch v. Bayard, 21 N. J. 186; Richmond v. Foote, 3 Lansing (N. Y.), 244; Hairston v. Jaudon, 42 Miss. 380 ; Hoffman v. Felt, 39 Cal. 109 ; Po- land c. O'Conner, 1 Neb. 50; Cagger v. Lansing, 43 N. Y. 530 ; Moss v. Culver, 64 Penn. St. 414; Sackett v. Spencer, contract, which falls within the statute of 65 Penn. St. 89 ; Adams u. Fullam, 43 frauds, and upon which he has received an advance in certain property, repudiates that contract, and declines to pay for the property advanced in the mode stipulated, it is regarded as equitable that he should re- fund in the usual mode, for money had and for goods sold, and it is not in his power, without the consent of the other party, to revest the title of the specific things re- ceived. Hawley u. Moody, 24 Vt. 603. And this recovery may be had under the general counts. lb. "So third person can take advantage of the want of a writing, where the vendor, of whom performance is claimed, admits the agreement, though Vt. 592 ; ■ Home v. Rogers, 32 Texas, 218 ; Freeman v. Freeman, 43 N. Y. 34 ; Gal- braith v. Galbraith, 5 Kansas, 402 ; Ewing a. Gordon, 49 N. H. 45S, 461 ; Wilson v. The West Hartlepool Railway Co. 2 De G., J. & S. 475.] (k) See per Lord Cranworth C. Caton v. Caton, L. R. 1 Ch. Ap. 137, 148; [1 Sugden V. & P. (8th Am. ed.) 151, note (6), and cases cited.] (I) Sugd. Con. View, 101, and cases cited; [1 Sudgen V. & P. (8th Am. ed.) 152, note (n).] (m) lb. 98. [Unless the defendant in- sists upon the protection of the statute, it might otherwise be avoided, as being which he may do by his answer, although within the statute of frauds. Bohannon aparol agreement be admitted. 1 Sugden v. Pace, 6 Dana, 194. See Cahill u. Big- V. & P. (8th Am. ed.) 149, note (I); 1 elow, 18 Pick. 369.] Dan. Ch. Pr. (4th Am. ed.) 656, and note (j) Thynne v. Earl of Glengall, 2 H. 10) ; Ridgway v. Wharton, 3 De G., M. & L. Cas. 151, 158 ; 12 Jur. 805 ; Mundy v. G. 677, 691.] 424 SUBJECT-MATTER OF CONTRACTS. 3. Of the Action by the Vendor against the Vendee of an Estate, for Breach of the Contract of Sale. It is a general rule, that the vendor of an estate cannot sue the vendee on the contract to purchase, unless he, the ven- Generalrule. . . . dor, has not only shown, or ottered to show a good title, if bound so to do, (n) but has been always ready and willing to ex- ecute a conveyance to the vendee in terms of the contract, (o) For the party seeking to enforce an agreement of this nature, must clearly evince and notify a willingness to complete it on his part, * before the other party can be considered in default, (p) And so, where the contract of purchase is conditional, e. g. on obtaining the sanction of a third party, the vendor cannot enforce such contract without showing performance of the condition, (g) But if the agreement to pay the purchase-money be wholly in- dependent of that to convey the estate ; the vendor, in declaring for the purchase-money, need not aver that he was ready and will- ing to convey the property purchased, (r) Nor, in general, need the vendor show that he actually offered or Tender of . tendered a conveyance to the purchaser. («) But this notTenerallv ru ' e wou 'd not apply if, by the express terms of the agree- necessary. ment, the vendor himself was to prepare the convey- ance ; (£) for, in such a case, he must show either that he tendered (n) Where the vendor is bound by the ley, 15 Pick. 546; Howe v. Huntington, contract to deliver an abstract of his title to 15 Maine, 350; Swan v. Drury, 22 Pick. premises sold, it is not sufficient for him 485 ; Warren v. Wheeler, 21 Maine, 484 ; to cause the title deeds to be handed to the Sewall v. Wilkins, 14 Maine, 168 ; Led- purchaser for perusal. Home v. Wingfield, yard v. Manning, 1 Ala. 153; Halloway 3 M. & G. 33 ; 3 Scott N. R. 340. v. Davis, Wright, 129 ; Sims ». Boaz, 11 (o) Poole v. Hill, 6 M. & W. 835. And Sm. & M. 318 ; Green v. Green, 9 Cowen, if issue be taken on the vendor's readiness 49 ; Morrison v. Ives, 4 Sm. & M. 652. and willingness, this will put him to prove A mere readiness to perform was said not his ability to perform the contract. De to be sufficient by Sutherland J. in John- Medina v. Norman, 9 M. & W. 820. son v. Wygant, 11 Wend. 48, 49. But (p) Jones c. Barkley, 2 Dougl. 684; see Tinney v. Ashley, 15 Pick. 546; Low Phillips ii. Fielding, 2 H. Bl. 123 ; Hawkins v. Marshall, 17 Maine, 232 ; Welch v. Mat- v. Kemp, 3 East, 443 ; 1 Sudgen V. & P. thews, 98 Mass. 131.] (8th Am. ed.) 240, and notes, 241, note (j) ; (?) Porcher v. Gardner, 8 C. B. 461. [Laird v. Smith, 44 N. Y. 618 ; Sargent v. (r) Mattock v. Kinglake, 10 Ad. & Ell. Adams, 3 Gray, 80 ; Irvin v. Bleakley, 67 50 ; Sibthorp i>. Brunell, 3 Exch. 826. Penn. St. 24 ; Lawrence u. Dole, 11 Vt. (s) Poole v. Hill, 6 M. & W. 835. 549 ; Guthrie v. Thompson, 1 Oregon, 353 ; (t) It is incumbent on the vendee to Shirley v. Shirley, 7 Blackf. 542 ; Green prepare the conveyance, even where the v. Reynolds, 2 John. 145; Ramsay u. agreement is silent on the subject; Poole Brailsford, 2 Desaus. 582 ; Tinney v. Ash- u. Hill, 6 M. & W. 835, 841 ; 1 Sugden V. SALE OF HEAL PROPERTY. 425 a conveyance to the vendee, or that the latter discharged or ex- cused him from preparing or tendering such conveyance, (i 1 ) e. g. by signifying that he would never execute it ; or by refusing to & P. (8th Am. ed.) 241 ; and a stipulation that the conveyance is to be at his own expense, is equivalent to a provision that he should get it ready. Seward v. Willock, 5 East, 198. [The present English prac- tice jipon this subject differs materially from that of most of the American states. In them, unless there is some stipulation to the contrary, under a contract to convey real estate, the vendor is generally bound to prepare the deed of conveyance at his own expense. In Massachusetts, a party, who contracts to execute and deliver a deed, is bound to prepare the deed, if there be no stipulation that it shall be prepared by the intended grantee. Tinney v. Ash- ley, 15 Pick. 546. See Swan v. Drury,22 Pick. 485. The rule in Maine is the same. Hill v. Hobart, 16 Maine, 164. In New York the vendor, who has bound himself to give a deed by a certain day, must be at the expense of having it drawn, and must have it prepared and ready on that day. Connelly v. Pierce, 7 Wend. 129 ; Carpen- ter v. Brown, 6 Barb. 93. See Hackett v. Huson, 3 Wend. 250 ; Fuller v. Hubbard, 5 Cowen, 13, 18, note; Hudson v. Swift, 20 John. 23, 27. In Pennsylvania the rule is the same, viz. that the vendor must pre- pare the deed. Sweitzer v. Hummel, 3 Serg. 6 R, 228. But see Poulson v. Ellis, 60 Penn. St. 134. So, in Illinois, 39 111. 354. So, in Mississippi, Standifer v. Davis, 13 Sm. & M. 48 ; Johnston v. Beard, 7 Sm. & M. 217. See Smith t>. Henry, 2 Eng. 207 ; Buckmaster v. Grundy, 1 Scam. 310. So, in Texas, Walling v. Kinnard, 10 Texas, 508. So, in Iowa, Winton v. Sherman, 20 Iowa, 295. The rule is the same in Minnesota. Paul &c. v. Brown, 9 Minn. 157. So, in Wisconsin and Oregon, Seeley v. Howard, 13 Wise. 336 ; Guthrie v. Thompson, 1 Oregon, 353. So, in Ar- kansas, Arledge v. Rooks, 22 Ark. 427 ; see Byers e. Aiken, 5 Pike, 419 ; Dennere v . Boyer, 5 Pike, 497. So, in Ohio, Tay- lor a. Longworth, 14 Peters (U. S,), 175, This being the general rule, the vendor, in an action against the vendee for the pur- chase-money, must show that he has pre- pared and tendered a deed of conveyance, or has offered to prepare and tender such deed and has been discharged or excused from preparing and tendering it by the acts or conduct of the vendee. See Green v. Reynolds, 2, John. 207 ; Parker v. Parm- lee, 20 John. 130 ; Johnson v. Wygant, 11 Wend. 48; Hunt o. Livermore, 5 Pick. 395; Kane v. Hood, 13 Pick. 281 ; Warner if. Hatfield, 4 Blackf. 392 ; Taylor v. Per- ry, 5 Blackf. 599 ; Smith v. Henry, 2 Eng. 207 ; Jackson v. Speed, 2 Duvall (Ky.), 426 ; Adams v. Williams, 2 Watts & S. 227 ; Thomas v. Lanier, 23 Ark. 639 ; Da- vidson v. Van Pelt, 15 Wise. 341 ; Tharin v. Ficklin, 2 Rich. 361. In Tinney i>. Ashley, 15 Pick. 546, Wilde J. said; " When one party demands of the other the performance of a mutual agreement, by which concurrent acts are to be per- formed by each party, an offer on the part of the party making the demand, to per- form his part of the agreement, is implied and understood ; and when the other party refuses to comply, he thereby dispenses with any other offer.* And where he neg- lects to comply without offering any rea- son for his non-compliance, the legal effect is the same." Where the vendee has given notice to the vendor of his refusal to per- form the contract, no tender of a deed by the vendor is necessary to sustain a bill for specific performance. Crary v. Smith, 2 Comst. 60 ; North o. Pepper, 21 Wend. 636. See 1 Sugdcn V. & P. (8th Am. ed.) 241, note (m).] f^ 1 ) [Such would be the general rule in most of the American states ; and it would not be confined to cases where the vendor had expressly contracted to pre- pare the conveyance, that being his duty without such special agreement. See note (t) above.] 426 SUBJECT-MATTER OF CONTRACTS. take or return the abstract ; or by refusing to accept the title ; or it, seems, by refusing to approve of or dissent from the title shown on the face of the abstract, and to which lie has made objections, (w) And in an action by the vendor against the vendee for breach of the contract by the latter ; the vendor is entitled to re- Damages re- . . n . coverabieby cover such damages as he may have actually sustained by reason of such breach. (x~) i. Of the Action by the Vendee of an Estate against the Vendor, for Breach of the Contract of Sale. 1. If the seller violate the agreement on his part, either by omit- ting to show a good title in due time, or by refusing to ex- ecute the conveyance, the vendee may maintain an action against the auctioneer (jf) to recover the deposit, but not the ex- penses (2) or interest ; (a) or against the vendor, to recover the (a) Laird v. Pirn, 7 M. & W. 474 ; Wil- for the sale and purchase of real estate, mot r. Wilkinson, 6 B. & C. 506 ; Jones and being refused by him, has been depos- it Barkley, 2 Dougl. 684. Butiftheven- ited in a place subject to his call, the dee give a bill for the purchase-money, and measure of damages in a suit upon th has had possession, he is liable on the bill at contract, is the price agreed to be paid and all events. See Moggridge v. Jones, 14 interest. Oatman v. Cook, 3.3 Maine, 67 ; General rules. East, 486; Swan «. Cox, 1 Marsh. 176; Lewis v. Cosgrave, 2 Taunt. 2 ; Archer v. Bamford, 3 Stark. 175. (x) Laird v. Pirn, 7 M. & W. 474; [Griswold v. Sabin, 51 N. H. 167; Moor u. Roberts, 3 C. B. N. S. 842 ; 1 Sugden V. & P. (8th Am. ed.) 23£, 361, note (1 1 ) ; 2 Dart V. & P. (4th Eog. ed.) 875. Where Alna v. Plummer, 4 Greenl. 258 ; Robin- son !>. Heard, 15 Maine, 296. See Richards u. Edick, 17 Barb. 260 ; Sears c. Boston, 16 Pick. 357 ; Gill v. Bicknell, 2 Cush. 358; Jacobs c. Peterborough & Shirley Railroad, 8 Cush. 223 ; Franchot v. Leach, 5 Cow-en, 506 ; Shannon u. Comstock, 21 Wend. 457 ; Tripp u. Bishop, 56 Penn. the action is brought by the vendor against St. 424.] the vendee for breach of a contract for the (y) The auctioneer is a stakeholder be- purchase of land by the latter, it was held, tween the parties ; Burrough v. Skinner, in Old Colony Railroad v. Evans, 6 Gray, 5 Burr. 2639 ; Harington v. Hoggart, 1 B. 25, 34-36, that the measure of damages is & Ad. 577 ; and in strictness, an action not the full contract price, but the differ- may be brought against him to recover the ence between that price and the price for deposit, without giving him notice of the which the land could have been sold at the vendor's default. Duncan v. Cafe, 2 M. & time of the breach. This seems to be the English rule ; see Laird v. Pim, 7 M. & W. 474 ; Moor u. Roberts, 3 C. B. N. S. 842 ; Gordon v. Norris, 49 N. H. 385, 386 ; where the vendee has been let into posses- sion, refuses to complete, and no convey- ance has been executed ; see 2 Dart V. & W. 244 ; 1 Sugden V. & P. 76. (z) Lee r. Mann, Holt N. P. R. 599. (a) It is decided that he is not liable for interest, although he place the money in the funds, and make interest of it. Har- ington v. Hoggart, 1 B. & Ad. 577. In that case the vendee, on the completion of P. (4th Eng. ed.) 875. In Maine it has the purchase, claimed the interest which been decided that when a deed has been the auctioneer had made of the money, in duly tendered to the vendee in a contract consequence of the money having been in- SALE OF REAL PROPERTY. 427 deposit and interest, with the expenses incurred ; and in some cases, damages for the loss of the bargain. (5) But in order to recover the interest or expenses, the plaintiff must show that the defendant has entered into a valid contract, undertaking to make out a title ; and he cannot recover more than the deposit if, for example, the contract of sale be not signed accord- ing to the provisions of the statute of frauds, (c) And if the contract be broken in the purchaser's lifetime, and a loss accrue to his personal estate, his personal representative may- maintain the action, (d) The purchaser cannot in general institute proceedings without tendering a conveyance to the vendor, unless he has been Purchaser discharged from so doing by the latter, (e) And the general, ten- instrument tendered must be such as the vendor was, in jJnceto un- conformity with his agreement, bound to execute. (/) dor - rested in government securities, according to the vendor's notice. The case equally proves, that the vendee is not entitled to interest as against the auctioneer; for the principle is, that he is not an agent, but a mere stakeholder, and, as such, liable to be called upon to pay the money at any time. See Gaber v. Driver, 2 Y. & J. 549 ; Cur- ling v. Shuttleworth, 6 Bing. 121 ; Boy- man v. Gutch, 7 Bing. 379, 390. See the 3 & 4 Will. 4, u. 42, s. 28. (b) Post, 434. Where a bill has been filed for specific performance, equity will restrain an action brought for the recovery of the deposit. See Kell v. Nokes, 32 L. J. C. 785. (c) Gosbell v. Archer, 2 A. & E. 500 ; Casson v. Roberts, 32 L. J. C. 105. (rf) Orme v. Broughton, 10 Bing. 533. (e) Poole v. Hill, 6 M. & W. 835, 841 ; [Ace. Byers v. Aiken, 5 Pike, 419 ; Dren- nere v. Boyer, 5 Pike, 487. See Fair- banks i'. Dow, 6 N. H. 266 ; Stockton o. George, 7 How. (Miss.) 172. But in most of the American states, the purchaser is not bound to tender a conveyance. His duty is to tender the purchase-money and demand a deed, which the vendor must prepare and execute at his own expense. See ante, 424, note (() ; Hudson v. Swift, 20 John. 24 ; Hacket v. Huson, 3 Wend. 250; Fuller v. Williams, 7 Cowen, 53; Connelly v. Pierce, 7 Wend. 129 ; Ishmael v. Parker, 13 111. 324 ; Clarke v. Locke, 11 Humph. 300; Western R. R. Corp. o. Babcock, 6 Met. 358, per Shaw C. J. ; Smith c. Robinson, 11 Ala. 840; Hunter a. O'Neill, 12 Ala. 37; Carpenter u. Brown, 6 Barb. 147 ; Foote v. West, 1 Denio, 544. Where the purchaser sues to recover back part of the consideration money, that has been paid by him on the contract, he must show that he has ten- dered the residue of the purchase-money and demanded a deed, so as to put the vendor in default. Hudson v. Swift, 20 John. 24. See Green v. Green, 9 Cowen, 46 ; Fuller v. Hubbard, 6 Cowen, 13 ; Irvin v. Bleakley, 67 Penn. St. 28. Where no place is fixed for the payment of the pur- chase-money, a tender of the money and demand of a deed at the residence of the vendor on the day named for the execution of the contract, are a sufficient compliance on the part of the purchaser, and give him a right of action against the vendor. If the latter, at the time of such tender and demand, be absent from home, a personal tender is not necessary. Smith v. Smith, 25 Wend. 405. See Franchot v. Leach, 5 (/) Manning v. Bailey, 2 Exch. 45; Vonhollen v. Knowles, 12 M. & W. 602. 428 SUBJECT-MATTER OF CONTRACTS. But the failure to deduce a title ; (g~) or the production of a bad What will ^ e ' (^) or a wron gf u l resale by the vendor, (i) vuM render this render the preparation and tender of a conveyance by- unnecessary. ' J the purchaser unnecessary, (i -1 ) 2. It is said that, even in a court of law, equitable objections to What obiec- a ^' e ma 7 S' ve a Purchaser the right to resist a contract tions to title or t rescind it. (k~) But in Boyman v. Guteh, (I) — can be re- v / " v J gardedin a ' which was an action by vendee against vendor to re- cover the deposit, and where the declaration alleged that the defendant had not a good right or title, and had failed to make or show a proper title, — the court of common pleas held, that they could not consider whether the title was of such a doubtful descrip- tion, as that a court of equity would not compel an unwilling pur- chaser to take it ; but simply whether the defendant had or had not a legal title to convey. In a subsequent case, however, it was held by a majority of the judges of the court of exchequer, that where a question arises between parties who are about to enter into the re- lationship of vendor and vendee, as to the meaning of the terms " a good or sufficient title," there must be such a title as a court of Cowen, 506. If the obligee in a bond for (i 1 ) [If the vendor has agreed to convey a deed, on the last day of performance, say on the performance of certain conditions to the obligor, that the money is ready by the vendee, and has purposely incapac- for him whenever he will give a deed, but itated himself to make the conveyance, the produces no money, and the other party vendee is exonerated from the performance replies, that he will procure him a deed, of the conditions on his part. Miller v. but immediately goes away, this is not a Whittier, 32 Maine, 203 ; Newcomb v. waiver of performance or a tender thereof. Brackett, 16 Mass. 161 ; Eames v. Savage, Drummond v. Churchill, 17 Maine, 325. 14 Mass. 425; Thurston v. Franklin Col- Where there is a joint obligation, on the lege, 16 Penn. St. 154; Nichols u. Free- part of several, upon an offer of a convey- man, 11 Ired. 99. A provision in an ance of real estate by the other contracting agreement for the sale and purchase of party, to accept the same and pay therefor land, that the purchaser shall pay the con- a certain sum of money, it is not necessary sideration, " as soon as it can be ascertained that the offer should be made to more than that the title to the premises is good and one of them. Oatman v. Walker, 33 unincumbered," imposes upon the pur- Maine, 67.] As to the mode of averring a chaser the duty to examine the title before discharge, Thames Haven &c. Company v. accepting a conveyance. Carr r. Poach, Brymer, 5 Exch. 696, 710. 2 Duer (N. Y.), 20.] () for a lease. 3. When an abstract is to be delivered, or the conveyance is to be executed on or before a certain specified day, the time At law time fixed is, at law, considered to be of the essence of the sence'of the contract ; and the vendee may rescind the contract, if contract, the vendor be not ready before or on the exact day. (x) So, according to the rule inequity, a purchaser may, by the terms of the agreement, make time the essence of the con- E u j e m tract ; although it is said to require a very strict stipula- e i ult y- tion to effect that object, (a; 1 ) Or he may make time the essence of the contract, by a notice at any time during the progress of the negotiations, fixing a reasonable period for completion, (jf) (u) Permiall v. Harborne, 11 Q.B. 368; den V. & P. (8th Am. ed.) 268, in note Wilson v. Wilson, 14 C. B. 616. (e) ; Parkin v. Thorold, 2 Sim. (N. S.) 7, (u) Kintrea v. Perston, 1 H. & N. 357. 8 ; 16 Beav. 59 ; Knight Bruce L. J. in (x) See per Alderson B. Hanslip v. Roberts o. Berry, 3 De G., M. & G. 290 ; Padwick, 5 Exch. 615, 623; Cornish v. Turner L. J. lb. 291, 292; Boehm v. Rowley, 1 Selw. N". P. 9th ed. 178 ; Berry Wood, 1 Jac. & W. 422 ; Walker v. Jef- v. Young, 2 Esp. 640, note ; Wilde v. freys, 1 Hare, 348 ; Pennock v. Ela, 41 N. Fort, 4 Taunt. 334 ; [1 Sugden V. & P. H. 189 ; Ewing v. Gordon, 49 N. H. 444. (8th Am. ed.) 257, note (6), and cases The express stipulation making time es- cited; Hunter v. Daniel, 4 Hare, 420; sential need not be inserted in the written Reed v. Chambers, 6 Gill & J. 490 ; contract. Nokes v. Killorey, 1 De G. & Schroepel v. Hopper, 40 Barb. 425 ; Wil- S. 444.] liston v. Williston, 41 Barb. 635 ; Hill v. (y) Per Malins V. C. Webb v. Hughes, Fisher, 34 Maine, 143 ; Allen v. Cooper, L. R. 10 Eq. 281, 286 ; [1 Sugden V. 22 Maine, 133 ; Tilley v. Thomas, L. R. P. (8th Am. ed.) 268, and notes (c) and 3 Ch. Ap. 69, per Sir John Rolt L. J. ; (h), where the American cases on this Roberts v. Berry, 3 De G., M. & G. (Am. point are collected ; Ewing v. Gordon, 49 ed.) 289, note (1); Shaw u . Wilkins, 8 N. H. 444 ; Fuller v. Hovey, 2 Allen, 324 ; Humph. 647.] King v. Ruckman, 5 C. E. Green (N. J.), (a: 1 ) [It is not sufficient to make time of 316; S. C. 6 C. E.Green (N. J.), 599 ; the essence of the contract by express stip- Milnor v. Willard, 34 111. 48 ; Stow v. Rus- ulation to that effect, that the parties sell, 36 111. 19; Pickering v. Pickering, should name the time of performance in 38 N. H. 400 ; Barnard u . Lee, 97 Mass. the contract ; but it must appear that they 94 ; Richmond v. Gray, 3 Allen, 25, 30, really intended to make such time a real 31 ; Roberts v. Berry, 3 De G., M. & G. element of their agreement. Gray J. in (Am. ed.) 384; Heckard v. Sayre, 34 111. Barnard u. Lee, 97 Mass. 94, 95. See 142 ; Dominick v. Michael, 4 Sand. 426 ; Jones v. Robbins, 29 Maine, 351 ; 1 Sug- Presser v. Hildebrand, 23 Iowa, 483 ; vol. i. 28 434 SUBJECT-MATTEK OF CONTEACTS. There may, however, even at law, be a waiver of the right to . , require performance on the stipulated day. (z) And it How waived. , , *■ c seems that the purchaser cannot, at the trial or an action to recover the deposit, insist, upon an objection to the title, which he did not raise or notify at the time he refused to complete the contract ; provided the objection be of such a nature that, if then stated, it might have been removed, (a) It seems, moreover, that if neither party be ready by the ap- i. ... pointed time, and both are in default, the contract is, at Effect of both 1 ' parties being law, ipso facto dissolved; and that the deposit is recover- able, unless the time has been prolonged by consent. (5) Where no time is fixed for completing the contract, the vendor _ , , must be ready to do so within a reasonable time, (c) And Eule where . - _ .... no time is it seems that, in such a case, a vendor may bring his completing action if he has a complete title at the time of the trial, the contract. a ] t ] ]0U gi 1 i ie aC q U i re d it after action brought : provided the vendee has not, prior to the action, applied for a title ; (d) or abandoned the contract on a valid objection to the title. («) 4. The vendor is, in general, responsible, not only for the de- posit, but for interest thereon ; (/) and for interest on moneys Wells v. Maxwell, 32 Beav. 408 ; Parkin (?) Carpenter v. Blandford, 8 B. & C. v. Thorold, 16 Beav. 59.] But where 575. The rule in equity seems to be, that there is no gross negligence, or the delay if the parties continue to negotiate after is unavoidable from the state of the title, the time fixed for completing the purchase, and time is not essentially important, this will operate as a waiver. But the equity will relieve, though a day was fixed purchaser lias still the right to give up the for completion. See Roberts v. Berry, 22 contract, upon reasonable notice that he L.J. C. 398; [3 De G., M. & G. 384;] 1 will do so if a title be not shown. Per Sugden V. & P. 407, 409. [Time may be Malins V. C. Webb v. Hughes, supra. created as of the essence of the contract on (a) Todd r. Iliiggart, Moo. & M. 128. the circumstances of the particular case, {b) See Clarke v. King, 1 R. & M. 394; or upon a construction of the agreement. S. C. 2 C. & P. 286. Seaton v. Mapp, 2 Coll. 556; Payne v. (c) Sansom v. Rhodes, 8 Scott, 544; Banner, 7 Jur. 1051 ; Wells o. Smith, 7 [Watts «... Sheppard, 2 Ala. 425 ; Sawyer Paige, 22; Heckard v. Sayre, 34 111. 142; v. Hammatt, 15 Maine, 40; Cocker d. Brashier v. Gratz, 6 Wheat. 533 ; Magof- Franklin H. & V. Manuf. Co. 3 Sumner, fin v. Holt, 1 Duvall, 95 ; Merritt v. Brown, 530 ; Sanford v. Emory, 34 111. 468 ; Pick- 4 Green, 286; Andrews v. Bell, 56 Penn. ering u . Pickering, 38 N. II. 400; Kime St. 343 ; Tilley a. Thomas, L. R. 3 Ch. o. Kime, 41 111. 397 ; 1 Sugden V. & P. Ap. 61 ; Gedye v. Duke of Montrose, 26 (8th Am. ed.) 271, note («).] Beav. 45 ; Day v. Luhke, L. R. 5 Eq. 336 ; (d) Thompson v. Miles, 1 Esp. 184. Claydon v. Green, L. R. 2 C. P. 511 ; (e) Bartlett v. Tuchin, 1 Marsh. 583. Grigg D. Landis, 6 C. E. Green, 494; (/) At law he is entitled to interest at Stowu. Russell, 36 111. 18.] SALE OF REAL PROPERTY. 435 purposely kept in hand, and unproductive, in order to pay the re- mainder of the purchase-money ; (g) and also for the Damages re- expenses incurred by the purchaser in investigating the aglhist' 16 title. (K) vendor - So it has been held, that the purchaser is entitled to recover in- terest on money borrowed by him, and kept idle to answer the purchase. (*') But if such money were borrowed before the pur- chaser had ascertained whether the seller could or could not com- plete his contract, the former would not be entitled to recover either the expenses of raising the same, or the loss of interest thereon. (Is) Where the vendor files a bill in equity against the vendee for a specific performance, which bill is dismissed with costs ; costs in and the vendee sues the vendor at law for breach of re"ovcrabi the contract ; he is not entitled to recover, as damages as damages. in that action, the extra costs of the suit in equity. (J) And so, where the vendee sues for a specific performance ; and the vendor not having a good title, the vendee's bill is dismissed without costs, according to the practice of the court of chancery in such cases, the vendee cannot recover those costs, as damages, in an action at law against the vendor for breach of the contract, (ni) So, it is now well decided, that where the .vendor of an estate is, without fraud on his part, unable to make out a title, ,,_ ' i ' Where pur- the purchaser is not entitled to recover damages for the chaser en- r ii-i tltled t0 dam - loss of the bargain, but only the money he has paid, ages for loss with interest, and expenses, (w) And, accordingly, it 52. percent. Hodges v. Earl of Litchfield, Elureau v. Thornhill, 2 Bl. 1078 ; Walker 1 Scott, 443, 452. v. Moore, 10 B. & C. 416 ; and see Worth- (g) Flureau v. Thornhill, 2 Bl. 1078. ington v. Warrington, 8 C. B. 134 ; 18 L. (A) See, very fully, Hodges v. Earl of J. C. P. 350; Tyrer v. King, 2 C. & C. Litchfield, 1 Scott, 443 ; per Cur. in Har- 149; Bratt v. Ellis, and Jones v. Dyke, 2 ington o. Hoggart, 1 B. & Ad. 588, 590. Sugden V. & P. App. 5, 6 ; Sikes v. The purchaser cannot recover the expense Wild, 1 B. & S. 421. The reason of this of preparing the conveyance, after his re- rule is said to be, that these contracts are fusa to complete on account of the non- merely upon condition, frequently ex- production of title deeds, &c. Jarmain v. pressed, but always implied, that the ven- Egglestone, 5 C. & P. 172. dor has a good title. Per Blackstone J. (j) Sherry v. Oke, 3 Dowl. 349. Elureau v. Thornhill, 2 Bl. 1078 ; [Buck- fit) Hanslip v. Padwick, 5 Exch. 615. ley t>. Davison, 5 Ir. C. L. 211 ; Simons II) Hodges v. Earl of Litchfield, 1 Scott, v. Patchett, 7 El. & Bl. 568 ; Bain „. 443 Eothergill, 19 V7. E. 134; S. C. L. R. 6 (m) Maiden v. Fyson, 11 Q. B. 292. Exch. 59 ; Mason o. Kaine, 67 Penn. St. (n) Pounsett ^. Fuller, 17 C. B. 660; 132. This rule under similar cireum- 436 SUBJECT-MATTER OP CONTRACTS. has been held, that this rule applies where, although the vendor is unable to make out a title, he has nevertheless acted lond fide, and stances has been adopted in several cases in the United States. See Peters v. Mc- Keon, 4 Denio, 546, 550 ; Baldwin a. Munn, 2 "Wend. 399 ; Bitner v. Brough, 11 Penn. St. 127; Allen v. Anderson, 2 Bibb, 415; Cox v. Strode, 2 Bibb, 275; Dunnica v. Sharp, 7 Missou. 71 ; Thomp- son v. Guthrie, 9 Leigh, 101 ; Herndon v. Venable, 7 Dana, 371 ; Coombs v. Tarlton, 2 Dana, 464 ; Fletcher v. Button, 6 Barb. 646 ; Blackwell v. Lawrence Co. 2 Blackf. 143; Sheets v. Andrews, 2 Black. 274; Witherspoon v. Anderson, 3 Desaus. 247, 248; 2 Dart V. & P. (4th Eng. ed.) 871, 872 ; Conger v. Weaver, 20 N. Y. 140 ; Sween v. Steele, 5 Iowa, 352 ; Wilson v. Spencer, 11 Leigh, 261 ; Drake v. Barker, 34 N. J. (5 Vroom) 358; Wheeler v. Styles, 28 Texas, 240. In Pennsylvania, where an action may be maintained for breach of a parol contract for the sale of land, the measure of damages in such an action is the actual consideration passing between the parties. If the consideration be services, and the services have been rendered, they are to be compensated ac- cording to their value ; if money, and the money has been paid, the measure of dam- ages is the amount paid with interest. But the plaintiff cannot recover damages for the loss of his bargain, and, therefore, evidence of the value of the land is irrele- vant. Ewing v. Thompson, 66 Penn. St. 382; Dumars v. Miller, 34 Penn. St. 319; Hertzog v. Hertzog, 34 Penn. St. 418, in which the subject was thoroughly and ex- haustively discussed, and previous cases holding a contrary doctrine overruled. Graham u. Graham, 34 Penn. St. 475 ; McNair v. Compton, 35 Penn. St. 23. See Burlingame v. Burlingame, 7 Cowen, 92 ; Welch v. Lawson, 32 Miss. 170 ; King v. Brown, 2 Hill, 485 ; Boardman v. Kee- ler, 21 Vt. 84. Although an oral con- tract for the sale of land is valid, and an action may be maintained for the breach of it, in Pennsylvania, still it passes no interest in the land and furnishes no right to demand specific performance ; and perhaps the reluctance of the court to en- courage the enforcement of such contracts has in some measure qualified the rule as to the measure of damages for breach of such a contract. See Bender v. Bender 37 Penn. St. 419, and Mason v. Kaine, 67 Penn. St. 133, in which the case of Hert- zog v. Hertzog, ubi supra, is referred to, and cases of fraud and bad faith excepted out of the rule laid down in it. But in an action for services performed on the faith of an oral agreement to convey lands in payment in New Hampshire, where such an agreement is void under the statute of frauds, the value of the land is compe- tent though not conclusive evidence of the value of the services. Ham v. Goodrich, 37 N. H. 185. In Drake v. Baker, 34 N. J. (5 Vroom) 358, it was held that where a person is prevented from complying with his agreement to sell real estate on account of a latent flaw in his title, the vendee cannot recover damages for the loss of his bargain. The court recognized the excep- tional rule adopted in Plureau v. Thorn- hill, 2 W. Bl. 1078, and Beasley C. J. observed that the rule in it is entirely es- tablished. The authority in its support, both English and American, is so abun- dant, and its existence is so generally rec- ognized, that ;it is unnecessary to refer to books to prove its prevalence in the juris- prudence of New Jersey. The same rule was maintained after an elaborate discus- sion of the subject, in Hammond v. Han- nin, 21 Mich. 374, 387, 388, where many cases on each side of the question are cited. See, also, Case v. Wolcott, 33 Ind. 5. The reason of this rule is said to be, that these contracts are merely upon con- dition, frequently expressed, but always implied, that the vendor has a good title. Per Blackstone J. in Flureau v. Thornhill, 2 Bl. 1078 ; Engel v. Fitch, L. It. 3 Q. B. 326. See per Blackburn J. in Lock o. Furze, L. B, 1 C. P. 453, 454. Whether this basis of the rule exists to any consid- SALE OF REAL PROPERTY. 437 with reasonable grounds for thinking that he could make a title to a purchaser, (o) But if the vendor knew, at the time the contract was entered into, that he had no title ; or if the sale goes off be- cause he changes his mind ; or because he neglects to take the necessary steps for putting the purchaser into possession ; the pur- chaser may, in an action for breach of such contract, recover, beyond his expenses, damages for the loss of his bargain, (p) erable extent in the United States, is very doubtful. In Massachusetts, and probably in many other states, in an action against a vendor for breach of a contract to con- vey, no difference seems to have been made in respect to damages whether the vendor s unable or unwilling to convey; the dam- ages to the purchaser are the same in either case. See Loomis a. Wadhams, 8 Gray, 557 ; Western Railroad Corp. u. Babcock, 6 Met. 358 ; Hill v. Hobart, 16 Maine, 164 ; Warren v. Wheeler, 21 Maine, 484 ; Law- rence v. Chase, 54 Maine, 196 ; Sedgwick Meas. of Damages (5th ed.), 200; Hop- kins v. Lee, 6 Wheat. 109; Cannell v. M'Clean, 6 Hair. & J. 297; Nichols v . Freeman, 11 Ired. 99; Bryant v. Ham- bruck, 9 Geo. 133 ; Whiteside v. Jennings, 19 Ala. 784 ; King v. Brown, 2 Hill, 485 ; Burlingame v. Burlingame, 7 Cowen, 92 ; Boardman v. Keeler, 21 Vt. 84 ; Taylor v. Eowland, 26 Texas, 293.] (o) Sikes v. Wild, 1 B. & S. 587 ; S. C. (in Cam. Scac), 4 B. & S. 421; Bain v. Fothergill, L. R. 6 Ex. 59. (p) Per Lord Campbell, Simons v. Patchett, 7 E. & B. 568, 572 ; Robinson v. Hardman, 1 Exch. 850; Hopkins v. Grazebrook, 6 B. & C. 31 ; Engel v. Fitch, L. R. 3 Q. B. 314 ; (in Cam. Scac.), 4 lb. 659 ; Godwin v. Francis, L. R. 5 C. P. 295 ; [Lock v. Furze, L. R. 1 C. P. 441 ; 2 Dart V. & P. (4th Eng. ed.) 873, 874. The American cases sustain the same doctrine. Thus, it has been held that, where the vendor has in bad faith agreed to sell land to which he knew he had no title; McDonnell v. Dunlap, Hardin, 41 ; Davis o. Lewis, 4 Bibb, 456; Baldwin u. Munn, 2 Wend. 399; McNair v. Compton, 35 Penn. St. 23 ; Brinckerhoff v. .Phelps, 24 Barb. 100; 43 Barb. 469 ; Drake v. Baker, 34 N. J. (5 Vroom) 358 ; Peters v. McKeon, 4 Denio, 546; Bush u. Cole, 28 N. Y. 261 ; where, having the title at the time of the agree- ment to convey, he has afterwards disabled himself from conveying by a transfer to a third person; Wilson v. Spencer, 11 Leigh, 261 ; Dustin v. Newcomer, 8 Ohio, 49 ; where he refuses to convey because the land is greatly enhanced in value ; Brinckerhoff v. Phelps, 24 Barb. "100 ; 43 Barb. 469; and also, where, having the title at the time he ought to convey ac- cording to his agreement, he still refuses to convey ; in all these cases, in a suit at law for a breach of the agreement to con- vey, the vendee is entitled to recover such sum as will indemnify him for the actual and direct loss sustained by the non-per- formance of the agreement, which would generally be the difference between the contract price and the enhanced value of the land when the conveyance should have been made ; Baldwin v. Munn, 2 Wend. 399 ; Western Railroad Corporation u. Babcock, 6 Met. 358; Brinckerhoff v. Phelps, 24 Barb. 100 ; 43 Barb. 469 ; En- gel v. Fitch, L. R. 3 Q. B. 314 ; L. R. 4 Q. B. 659 ; 2 Dart V. & P. (4th Eng. ed.) 872-874; Hill v. Hobart, 16 Maine, 164 ; Bitner u. Brough, 11 Penn. St. 127, 139 ; Mason v. Kaine, 67 Penn. St. 132 ; Sween u. Steele, 5 Iowa, 352 ; Driggs v. Dwight, 17 Wend. 71 ; Hopkins v. Lee, 6 Wheat. 109 ; Fletcher v. Button, 6 Barb. 647 ; Pringle v. Spaulding, 53 Barb. 17; and in Pennsylvania, as against a fraudulent vendor of real estate, damages may bo given for all the expense in which his fraud involved the plaintiff, the vendee. McNair v. Compton, 35 Penn. St. 23 ; Lee v. Dean, 3 Whart, 316 ; Mason v. 438 SUBJECT-MATTER OF CONTRACTS. So, although the auctioneer is, in general, liable only for the amount of the deposit, without interest : (a) still, if he When auc- r „ . . , . tioneer liable sell an estate without sufficient authority, this rule does for interest , . . . , . ,. .*, ... and ex- not apply ; and in such a case he is liable, as principal, penses tQ ^^ tQ ^g purchaser his deposit, interest, and ex- penses, (r) Kaine, 67 Penn. St. 126, 132 ; Hertzog v. Hertzog, 34 Penn. St. 418, 420-428 ; Good v. Good, 9 Watts, 367 ; King y, Pyle, 8 Serg. & R. 166. In debt for breach of a bond conditioned for the conveyance of land, and reciting the payment of the con- sideration, the measure of damages was held to be the value of the land at the time the conveyance should have been made. Hill v. Hobart, 16 Maine, 164. In this case Shepley J. said : " When the vendee proceeds at law he is entitled to a complete indemnity and to no more. By a performance he would have received the land, and not receiving that, if he obtains the value at the time, that is the exact measure of his loss," p. 169. A similar rule was adopted in Bryant v. Hambrick, 9 Geo. 133 ; Barham <.-. Nichols, 3 R. I. 187; Burr v. Todd, 41 Penn. St. 206; Shaw i'. Wilkins, 8 Humph. 647 ; McKee v. Brandon, 2 Scam. 339 ; Hopkins v. Yowell, 5 Verger, 305 ; Hopkins v. Lee, 6 Wheat. 109 ; Cannel v. McClean, 6 Harr. & J. 297 ; Marshall v. Haney, 9 Gill, 251 ; Whiteside v. Jennings, 19 Ala. 784. In Hill v. Hobart, there being no other evi- dence, the consideration paid and interest were taken as the value of the land. In a case somewhat similar (Fletcher v. Button, 6 Barb. 646), where also the purchase- money had been actually paid, the rule adopted by the circuit court having been that the vendee was entitled to recover back the amount paid and interest, the supreme court, hearing the case on appeal by the vendor, regarded the measure of damages adopted by the circuit judges as sufficiently favorable to the vendor, and intimated that a more stringent rule might have been adopted, and the vendee have been allowed to recover the value of the land at the time it should have been con- veyed, with interest from that period. See Pringle v. Spaulding, 53 Barb. 17. In Pennsylvania, in an action on an execu- tory contract for a refusal to convey land after payment of the purchase-money, the measure of damages is the value of the land at the time when it should have been conveyed. Cox v. Henry, 32 Penn. St. 18 ; so, also, in Vermont, Boardman v. Keeler, 21 Vt. 77 ; Russell v. Copeland,30 Maine, 332, was an action on an instru- ment for the conveyance of land. The vendee had given his negotiable notes for the purchase-money, and had paid one of them ; and upon this payment he was en- titled to a deed of the land, which, upon demand, the vendor failed to deliver to him. The other notes were outstanding in the hands of the vendor. No evidence was introduced to show the value of the land beyond the statement of the amount of the notes given for the consideration. The court in giving judgment said : " The loss which the plaintiff has sustained by the failure to make and deliver the deed by the defendant, is the value of the land at the time when the conveyance should have been made, and interest thereon. The value of the land at the time of the contract was fixed by the parties, and the case exhibits nothing tending to show that the value has since changed." Such would probably be the rule in all cases where the value of the land being in ques- tion, there was no other evidence of it but the sum named as the consideration for the conveyance ; that sum with interest would be regarded as the value of the land at the time the conveyance should be made, and ,() On the other hand, although the most proper form of words, Words of whereby to describe and pass a present lease for years, present de- be m ade use of; vet if upon the whole instrument there mise will not J L create a lease appear no such intent, but that it is only preparatory, against the , , , , , '.,, intention of and relative to a tuture lease to be made, the law will e.panes. rat ] ier c | violence to the words than break through the intent of the parties, (g) (I) Poole v. Bentley, 12 East, 168. (p) Fenner v. Hepburn, 2 Y. & C. C. C. (m) Pinero v. Judson, 6 Bing. 206. 159. (n) Doe d. Pearson v. Ries, 8 Bing. 178. (q) Bac. Abr. Leases, (K.); [4 Kent, (o) Wilson v. Chisholm, 4 C. & P. 474- 105; McGrath v. Boston, 103 Mass. 372.] LANDLORD AND TENANT. 443 Thus, where A. agreed that " B., the mills, &c, should enjoy, and engaged to give him a lease for the term, &c, and at the rent, &c. ; " and by another part of the agreement " an additional piece of land was to be purchased by A., to be added to the land de- mised ; " it was held that this amounted only to an agreement for a lease, (r) So, if the parties make mention in their agreement of a " lease to be granted," or of " a clause to be inserted in a future lease," such stipulation tends to show that the instrument was not meant to operate as a present demise, (s) But even this circumstance is not conclusive : and it will not have the effect of rendering the in- strument a mere agreement for a lease, provided the terms of the demise be in other respects fixed and stated. (t~) It is, however, reported to have been decided, that an agreement by A. to grant, and B. to take a lease, for a certain term, at a fixed rent, is per se only a contract for a future demise, (u) And if strong circumstances of inconvenience would arise from an instrument being construed as a present demise, that instrument fact may be taken to indicate, that the intention of the y^ e |b™con parties was that it should operate as an agreement strued to be . , . , p , an agree- Only. (#) For example, a stipulation that, out of the ment only, if rent mentioned, a proportionate abatement should be to be a lease made, in respect of certain excepted premises, has been inconve-™*' 6 held to bring a case within this rule ; and so has a stip- nience - ulation that the tenant should hold under all usual covenants ; for it may be disputed what are usual covenants. («/) But there are cases in which it has been held that this latter stipulation will not affect words of present demise, (z) Again : where a landlord and tenant, between whom there was (r) Doe d. Jackson v. Ashburner, 5 T. (y) Morgan d. Dowding u. Bissell, 3 R. 563 ; cited by Bayley J. in Doe v. Taunt. 65 ; Colley v. Streeton, 3D.4E, Groves, 15 East, 247. 522. It is observable that, in these cases, (s) See Brashier v. Jackson, 6 M. & W. the terms of the future lease were not as- 549 ; Goodtitle v. Way, 1 T. R. 735 ; Doe cei'tained at the time. But where the d. Bromficld v. Smith, 6 East, 530 ; S. C. terms, though not stated, can be collected 2 Smith, 570; Pooler. Bentley, 12 East, at once from an instrument referred to by 170; Tempest v. Rawling, 18 East, 18. the agreement, the above objection does (t) Doe d. Pearson v. Ries, 8 Bing. 178. not apply ; see Doe d, Pearson u. Ries, 3 (m) Phillips v. Hartley, 3 C. & P. 121 ; Bing. 178. see Clayton v. Burtenshaw, 5 B. & C. 41. (s) Doe d. Walker v. Groves, 15 East, (x) Per Tindal C. J. Doe d. Morgan v. 244 ; and see Alderman v. Neate, 4 M. & Powell, 7 M. & G. 980, 990 ; per Alderson W. 704. B. Chapman v. Towner, 6 M. & W. 100, 104. 444 SUBJECT-MATTER OF CONTRACTS. a subsisting tenancy, agreed in writing for a letting of the farm upon fresh terms ; the amount of the rent to be settled by valua- tion, and the tenant to find sureties for his paying the rent ; but the amount was not settled, and the sureties were not given ; it was held that the instrument, although it contained words of present demise, did not operate as a lease, or alter the terms of the existing tenancy, (a) And so, where A. agreed to let premises to B. on lease, — with a purchasing clause, — for twenty-one years, at Qol. per year; B. to enter any time on or before a particular day ; it was held that this was only an agreement for a lease, — on the ground that there were no words of demise ; that the commencement of the tenancy was left uncertain ; and that the words as to purchasing, showed that the letting was to be by a particular instrument containing such a clause. (6) But if it cannot be collected from the instrument itself, when the When the in- term is to commence ; (c) or if it be to commence only not'operate on the performance of a condition ; (c£) or if the instru- as a demise. men t do not show, or it cannot be ascertained, (e) for how long the term is to continue, (e 1 ) it will not operate as a de- mise. (e 2 ) And with reference to agreements to let for periods exceeding three years, it was said in a recent case, that although, before the statute 8 & 9 Vict. c. 106, parties might, in such cases, equally as well be supposed to have contemplated a present actual demise as a (a) John v. Jenkins, 1 C. & M. 227. and see Doe rf. Bailey v. Foster, 3 C. B. (6) Dunk v. Hunter, 5 B. & Aid. 322; 215; Gore i: Lloyd, 12 M. & W. 463 ; Clayton v. Burtenshaw, 5 B. & C. 41. See Hay ward v. Haswell, 5 A. & E. 265; Brown v. Warner, 14 Ves. 156. The sub- McGrath v. Boston, 103 Mass. 369, 371. ject treated of in the above section is of no (e) Lovelock v. Eranklyn, 8 Q. B. 371, importance, so far as regards parol agree- 381 ; and see Glen v. Dungey, 4 Exch. 61. ments entered into between the 1st of Jan- (e 1 ) [See McGrath v. Boston, 103 Mass. uary and the 1st of October, 1845. Dur- 369, 371.] ing that time the 7 & 8 Vict. c. 76, s. 4, (e 1 ) [" "Where agreements have been ad- was in force ; and the effect of that section judged not to operate by passing an inter- was, that no lease in writing should be est, but to rest in contract, there has been, valid, unless made by deed; and that usually, either an express agreement for agreements in writing, not under seal, another lease, or the construing of the which would previously have been consid- agreement to be a lease in presenti, would cred as leases, should merely have the work a forfeiture, or the terms have not force of agreements to execute leases, been fully settled, and something further Burton v. Revel], 16 M. & W. 307, 311. was to be done.' - 4 Kent, 105. See Pearce (c) Doe d. AVoodv. Clarke, 7 Q. B. 211. u. Colder, 8 Barb. 522 ; Hunter v. Silvers, (d) Doe d. Wood v. Clarke, 7 Q. B. 211 ; 15 111. 174.] LANDLORD AND TENANT. 445 prospective demise ; yet, inasmuch as, since that statute, they can- not let for a period exceeding three years except by deed, they may now very reasonably be supposed, when they do not agree by deed, in using the words " agree to let," to mean what they actually say, and not to intend an absolute lease. (_/) 2. Where a person contracts to grant a lease, there is an implied agreement that he lias a good title or right to grant such implied con- lease, ft) Se^™ Thus, where A. agreed to grant a lease to B., in con- P art y^ho ^ & ' agrees to sideration of a sum of money, part of which was paid grant a lease, by B. at the time of making the agreement ; and it afterwards ap- peared that A. had not power to grant the lease in question ; it was held that B. might rescind the contract, and recover back the money so paid. (Ji^> So, where there is a sufficient demise of premises, the law im- plies a promise by the party demising, to give possession Lessorim- to his tenant : and an action lies against the party let- P lle ^'y con_ ' t> r j tracts to give ting, for the breach of such promise, (z) possession; So, in the case of a demise by parol, there is an implied agree- ment for quiet enjoyment during the term ; (&) but not and for iet for good title. (I) enjoyment; Nor will a court of equity decree a specific performance of an agreement to take a lease of a house, where the house is and, in the round, on a competent survey, to be finished in such a case of a defective manner as to be likely to subject the tenant i; ver ;' t t0 under his covenant to repair, to an unusually large out- ^nabi"" ™ & ~ lay in order to maintain it. (m) repair. In an action by lessee, for breach of a covenant for quiet enjoy- ment, he is entitled to recover such damages as will Damages for ully compensate him for the loss of his lease, (n) covenant for And if an action be brought against the lessee by a per- Silent.™ 307 " (/) Per Bramwell B. Rolla,son v. Leon, (k) Hall v. London Brewery Company, 31 L. J. Exch. 96, 97 ; and see S. C. 7 H. 2 B. & S. 737 ; Bandy v. Cartwright, 8 & N. 73, 77. Exch. 913; (g) Stranks u. St. John, L. Rep. 2 C. {I) Bandy v. Cartwright, 8 Exch. 913. P. 376. See observations of Willes J. in (m) Tildeslcy v. Clarkson, 31 L. J. C. that case, on Temple v. Brown, 6 Taunt. 362. 60, 61 ; Gwillim v. Stone, 3 Taunt. 433. (n) Williams u. Burrell, 1 C. B. 402 ; (h) Roper «. Coombcs, 6 B. & C. 534. Lock v. Furze, 19 C. B. N. S. 96 (in (i) Coe v. Clay, 7 Bing. 440 ; Jinks v. Cam. Scac), L. Rep. 1 C. P. 441. Edwards, 11 Exch. 775. 446 SUBJECT-MATTER OF CONTRACTS. son claiming under the lessor, to recover possession of the land ; and the lessor, after notice from the lessee, do not defend such action ; the lessee may defend it ; and may recover from the lessor, in an ac- tion for breach of his covenant for quiet enjoyment, the the damages, costs, and expenses which he may have incurred in so doing, (o) 3. The first section of the statute of frauds provides that all When the leases, estates, interests of freehold, or terms of years, be'bydeed or anv uncertain interest of, in, to, or out of, any mes- ^ n g e y| h t e8 suages, manors, lands, tenements, or hereditaments, 106 - made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making or cre- ating the same, or their agents thereunto lawfully authorized ly writing, shall have the force and effect of leases or estates at will only ; (o 1 ) and shall not, at law or in equity, have any greater ef- fect, notwithstanding any consideration for making such parol leases or estates. The second section excepts all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two third parts, at the least, of the full improved value of the thing demised. And by the 8 & 9 Vict. c. 106, s. 3, it is enacted, that every lease required by law to be in writing, of any tenements or here- ditaments, made after the 1st day of October, 1845, shall be void at law, unless made by deed. The effect of these enactments appears to be, that a tenancy which is to endure for more than three years from the Effect of these enact- making of the agreement, cannot now be created by parol ; and, accordingly, it would seem that a lease for three years, to commence in futuro, will be inoperative unless made by deed, (jo) But a lease by parol for a year and a half, to commence after the expiration of a lease which wanted a year of expiring, would be good ; for it would not exceed three years from the making thereof. (c[) Again : although the statute of frauds enacts that all leases by (0) Rolph v. Crouch, L. Rep. 3 Ex. 44. (p) See Rawlins v. Turner, 1 Ld. Rajm. (0 1 ) [4 Kent, 95 ; Ellis v. Paige, 1 Pick. 736 ; S. C. 12 Mod. 610. 43; Rising „. Stannard, 17 Mass. 282; (q) Bull. N. P. 177; Ryley u. Hicks, 1 Coffin o, Lunt, 2 Pick. 71 ; Hingham v. Str. 651 ; observed upon in Edge v. Straf- Sprague, 15 Pick. 102 ; Little v. Palister, ford, 1 C. & J. 391, 396. 3 Greenl. 15.] LANDLORD AND TENANT. 447 parol for more than three years, shall have the effect of estates at will only ; yet it has been held, that occupation and payment of rent under such a lease will create a tenancy from year to year. (r~) And so, although a parol lease for more than three years was void within the statute, as to the duration of the term, yet the contract was held to regulate the terms of the holding in other respects, (s) And these decisions appear to be good law, notwithstanding the 8 & 9 Vict. c. 106, s. 3. For although that statute enacts, that a lease which is required by law to be in writ- ing will be void if not made by deed, still it is held, that it may be good as an agreement ; and that the provisions of the statute are satisfied by restricting its effect to the avoidance of the lease, as a lease simply, (i) Accordingly it has been held, that a court of equity will decree specific performance of such an agreement, (w) And so, where such an agreement contained a stipulation, that a lease, embodying the terms of the agreement, should be prepared at the joint expense of the parties ; it was held that an action might be maintained, at law, for not accepting such lease, (x) Again : although the second section of the statute of frauds ren- ders valid a parol lease for less than three years from No action lies the making thereof, yet, until entry by the lessee, there Sunder a is a mere interesse termini : (?/) and if he refuses to take S^ot^erl possession, no action lies to recover damages against m S- him for not occupying or becoming tenant, (z) For the fourth section applies to such a parol lease not rendered effectual by entry ; and that section provides, that no action shall be brought whereby to charge the defendant upon any contract or sale of lands, or any in- terest in or concerning them, unless the agreement be in writing, (a) The effect, therefore, of the statute of frauds, so far as it applies (r) Clayton v. Blakey, 8 T. R. 3. (x) Bond v. Rosling, 1 B. & S. 371. (s) Richardson v. Gifford, 1 A. & E. 52 ; (y) But a lease to two, one of whom is Beale v. Sanders, 5 Scott, 58 ; Doe d. already in possession as tenant from year Rigge v. Bell, 5 T. R. 471. It may regit- to year, is perfect without any further en- late the amount of rent, &c. De Medina try. Kcyse v. Powell, 2 E. & B. 132. v. Poison, 1 Holt N. P. R. 47. (z) But entry hy the lessee is not neces (t) Tidy v. Mollett, 16 C. B. N. S. 298 ; sary to entitle the lessor to sue for rent on Tress u. Savage, 4 E. & B. 36 ; Bond v. a demise, unless where it is at will. Bel- Rosling, 1 B. & S. 371 ; 30 L. J. Q. B. lasis v. Burbrick, 1 Salk. 209 ; 1 Ld. 227 ; per Martin B. Lee v. Smith, 9 Exch. Raym. 170, 171 . 662 665. (") Inman v. Stamp, 1 Stark. 12 ; Edge barker v. Taswell, 27 L. J. C. 812. v. Strafford, 1 C. & J. 391. 448 SUBJECT-MATTER OF CONTRACTS. to parol leases not exceeding three years from the making thereof, is this : that the leases are valid, and that, whatever remedy can be had upon them, in their character of leases, may be resorted to ; but they do not confer the right to sue the lessee for dam- ages'for not taking possession. (J) 4. Until the reign of Henry the Eighth, a general letting of _, , land, that is, a demise without limit as to the period of Of the ten- _ 1 ancy from holding, was held to create a tenancy strictly at the will vear to year. ,, , . , -, , . , , * r . or the parties, and determinable at the pleasure of either. But, in modern times, this rule has been modified ; and although, even at the present day, a mere general letting or permission to oc- cupv creates only a tenancy at will, yet if the lessor How created. P , , accept from the lessee a yearly rent, or rent measured by any aliquot part of a year, the courts will infer from this circum- stance an intention to create a tenancy from year to year, (c) Where, however, there is an express contract for a strict ten- Fuienotap- ancy at will, — although it be at a yearly rent payable strict tenan- quarterly, — occupation and payment of rent for more cies at will. t ] lan a y eai . 5 -win no t create a tenancy from year to year, (d) And the rule, that a general letting and payment of rent is, in Nor to lodg- the absence of an express agreement, to be considered as lngs ' evidence of a taking from year to year, would appear not to be applicable to the case of lodgings, (e) A. let apartments in his house to B., at a rent payable half yearly ; B. took possession at Michaelmas, 1822, and at Lady Day, 1823, paid half a year's rent. In June of that year B. left the apartments without giving any notice to quit, but at Michaelmas, 1823, he paid half a year's rent to that time. He refused to pay rent at Lady Day, 1824 ; and the court held that, from these facts, a taking from year to year could not be implied. (/) (6) Per Bayley J. delivering the jndg- Rent is payable yearly, unless otherwise re- nient of the court. Edge v. Strafford, 1 C. served. Com. Dig. Kent (B.), 8 ; Gray v. & J. 391 , 397. Chamberlain, 4 C. & P. 260. (c) Per Parke B. Doe d. Hull v. Wood, (d) Doe d. Basto v. Cox, 11 Q. B. 122 ; 14 M. & W. 682, 687 ; Richardson ;>. Lang- S. C. 17 L. J. Q. B. 3 ; and see Doe d. ridge, 4 Taunt. 128, 132 ; and sec 1.3 H. 8, Dixie r. Davies, 21 L. J. Exch. 60. 15b; Parker ,.-. Constable, 3 Wils. 25; (c) See per Lord Mansfield, Right v. Doe d. Warner u. Brown, 8 East, 155; Darby, 1 T. R. 159, 162; Timmins u. Rawlinson, 3 Burr. 1603. (/} Wilson v. Abbott, 3 B. & C. 88. LANDLORD AND TENANT. 449 So an agreement to take apartments, at the rate of so much a year, would seem not to create a tenancy from year to year. ( future lease, and he afterwards pay rent for a year, entry and ^ or an y aliquot part of a year under such agreement ; (^) reiitunderan r if he admit such rent to be due, (K) he thereby be- agreement \ for a lease. comes tenant from year to year, subject to such oi the terms of the contemplated lease as are not inconsistent with such tenancy, (i) JE. g. if the lease was intended to contain a cov- enant to repair, the tenant from year to year would be bound only to do tenantable repairs. (Jc) So, where a party, after the execution of such an agreement, enters into possession of the premises, (/) or procures attornments, or receives rent from the tenants ; (jn) he may be sued for rent upon the common count for use and occupa- (c) Roberts v. Hayward, 3 C. & P. 4.32. (h) Cox v. Bent, 4 Bing. 185. The court of common pleas sanctioned the (i) Tookcr v. Smith, 1 H. & N. 732 ; decision at nisi prius. Doe d. Thompson v. Amey, 12 A. & E. (d) Geeckie v. Monck, 1 C. & K. 307 ; 47G ; Mann p. Lovejoy, R. & M. 355 ; per Doe d. Bedford v. Kendrick, Adams on Tindal C. J. Regnart v. Porter, 7 Bing. Eject. 129; recognized by Patteson J. in 453; Doe d. Westmoreland v. Smith, 1 Doe d. Monck v. Geeckie, 5 Q. B. 841, M. & R. 137 ; Coupland v. Maynard, 12 843 ; and see Crowley <•. Vitty, 7 Exch. East, 134 ; Doe d. Lloyd v. Powell, 5 B. 319. & C. 312. (e) Draper v. Crofts, 15 M. & "W. 166 ; (k) Per Erie J. Bowes v. Croll, 6 E. & Tancred v. Christy, 12 M. & W. 316; S. B. 255, 264. C. 9 M. & W. 438 ; which seems to over- {I) Doe d. Oldershaw v. Breach, 6 Esp. rale Christy v. Tancred,, 7 M. & W. 127. 106 ; per Abbott C. J. and Holroyd, J. (/) Doe d. Lord „. Crago, 6 C. B. 90 ; Hamerton v. Stead, 3 B. & C. 478, 482; Jones v. Shears, 4 A. & E. 832. Banister v. Usborne, Peake Add. Ca. 76. (g) Per Parke B. Braythwayte v. Hitch- See, also, Sullivan v. Jones, 3 C. & P. 579. cock, 10 M. & W. 494, 497. (m) Neal r. Swind, 2 C. & J. 377. LANDLORD AND TENANT. 453 tion, although he himself has not paid rent, or been in any manner expressly recognized as a tenant, (n) And where the defendants took certain premises of the plaintiff for nine months, at a rent cer- tain, with the option of taking at the end of that time a lease for years ; and before the expiration of the nine months they let the premises to a tenant for six months, who actually occupied them for that period : it was held that, at the end of a year from the expira- tion of the nine months, the defendants were liable, in an action for use and occupation, for a year's rent, (o) And it seems that, at the expiration of the term contracted for, the tenancy from year to year, thus created, ceases without any notice to quit, (j?) 4th. So, if a tenant take possession and occupy under a written memorandum for a present demise, which he has never Tenanttak _ signed, it seems that he shall be presumed to hold upon "?e p°sses- ° A L sion under an the terms specified in such memorandum. But if the unexecuted 3,frr66ni6rit. landlord, in such case, fail to fulfil his part of the agree- ment in a material point, the jury may, in an action for use and oc- cupation, ascertain the value of the premises, without regarding the amount of rent reserved by the contract. ( - & & _ . , the tenants, he may place himselt to every intent in the same situation towards them, as the mortgagor occupied before the mortgage. (K) But with regard to tenancies subsequently created, by agreement between the mortgagor and third persons, the mortgagee is not bound, unless he recognize such tenancies by receiving rent, or by other acts decisively showing his adoption of them, (i) And, in either case, if the mortgagee give notice to the tenants Effect of no- *° P a 7 tnen " rents to him, the mortgagor is no longer en. tice of mort- titled to receive or recover any unpaid rent, whether it gage or de- i mandof be already due or not. (/) Nor, where the lease was before the mortgage, and the mortgagee gives such nO- tice to the tenant, will the fact that the tenant, before receiving it, had paid to the mortgagor rent not then due, be any bar to the claim of the mortgagee for such rent, when it does become due. (A;) Where, however, a mortgagor in possession makes a lease after the mortgage, the mortgagee cannot, by merely giving the tenant notice of the mortgage, and requiring him to pay rent to him, cause the tenant to hold of himself, the mortgagee. (T) But if the mortgagee give notice to such tenant, to pay the rent to him, and the tenant continue in possession without repudiating the notice ; a (/) Strahan v. Smith, 4 Bing. 91. burg Cotton Manuf. Co. v. Melven, 15 (g) Doe d. Whittick o. Johnson, Gow. Mass. 269, 270.] 173. ( j) Per Parke J. Popeu. Biggs, 9 B. & (h) Rawson u. Eicke, 7 A. & E. 451 ; C. 245, 258. Burrowcs a. Gradin, 1 D. & L. 213 ; 1 (k) De Nicholls v. Saunders, L. Rep. 5 Smith L. C. 315. C P. 589. (i) Rogers u . Humphreys, 4 A. & E. (/) Evans v. Elliott, 9 A. & E. 342 ; 299, 313 ; Doe d. Fisher v. Giles, 5 Bing. Wilton v. Dunn, 17 Q. B. 294 ; 21 L. J. Q. 421 ; Warne d. Keech v. Hall, 1 Dougl. B. 60 ; Hickman v. Machin, 4 H. & N. 21 ; Thunders. Belcher, 3 East, 449 ; Doe 716. d. Shepherd v. Allen, 3 Taunt. 78 ; [Fitch- LANDLORD AND TENANT. 457 jury will, it has been held, be warranted in inferring, from this cir- cumstance, an acquiescence on the part of the tenant, in the inten- tion of the mortgagee to create a tenancy between the former and himself, (m) And so a demand of rent and threat of distress will amount to an admission, that such tenant's possession was at that time lawful ; so that an ejectment could not be brought, on a demise laid in the declaration to have been previously made, (n) And it seems that, in such a case, proof of a demand of possession, or of a disclaimer by the tenant of the mortgagee's title, would be necessary, (o) But the mere receipt of interest by the mortgagee up to a given day, does not amount to a recognition by him that the or rece j p t f mortgagor or his tenant was lawfully in possession until lnterest - the time when such interest was paid. (^?) And so, if the mortgagor give the mortgagee an authority to re- ceive the rents as his agent or bailiff, and the mortgagee give the tenant notice of such authority, payment of the rent by the tenant in pursuance of such notice will not make him tenant to the mort- gagee. (?) 5. The third section of the statute of frauds, 29 Car. 2, c. 3, enacts, that no leases, estates, or interests, either of free- of the as- hold or terms of years, or any uncertain interest, not and suiren- being copyhold or customary interest, of, in, to, or out der of terms ' of, any messuages, manors, lands, tenements, or hereditaments, shall be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or sur- rendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of laiv. And now, by the 8 & 9 Vict. c. 106, s. 3, it is enacted, that an assignment of a chattel interest, not being copyhold, in any tenements or hereditaments, and a surrender in writing of an interest in any tenements or here- ditaments, not being a copyhold interest, and not being an interest (m) See Turner v. Cameron's C. S. (0) Doe d. Whittaker v. Hales, supra- C. Company, 5 Exch. 932, 937 ; Brown. As to disclaimer, see Doe d. Calvert v. v. Storey, 1 M. & G. 117; 1 Scott N. Frowd, 4 Bing. 557. K 9 ( p ) Doe v. Cadwallader, 2 B. & Ad. (n) Doe d. Whittaker v. Hales, 7 Bing. 473. 322 ; per Parke J. Doe v. Cadwallader, 2 (7) Wheeler v. Branscomb, 5 Q. B. B. & Ad. 473, 477. 373, 458 SUBJECT-MATTER OF CONTRACTS. which might by law have been created without writing, shall be void at law unless made by deed, (r) 1st. Under the old law it was held, that a verbal assignment of a lease from year to year was void, (s) And there can be Assignment •* ^ v y of term, how no doubt that, at the present day, an assignment of such an interest would be invalid, at all events, unless it were made by writing. But it may even be doubted whether, since the 8 & 9 Vict. c. 106, s. 3, such an interest can be assigned otherwise than by deed. The literal reading of that section is certainly in favor of the opinion that it cannot ; and this view of the question would seem to be borne out by some expressions of the court of queen's bench, in their judgment in the case of Pollock v. Sta- cey. (£) That was a case in which the question immediately before the court was, whether a parol demise of premises by a party for the whole residue of a term of less than three years, was to be regarded as a demise or as an assignment. And Lord Denman, in deliver- ing the judgment of the court, said : " If we were to decide that the transaction was an assignment, we should at the same time de- cide that it was no assignment, being by parol only ; and again, " As important rights and duties often arise from assignments of terms, the law has properly provided that the relation of assignor and assignee shall not be contracted, unless the intention is proved by deed." (w) But, with all deference to so high an authority, it is submitted that it is still open to argument, whether, upon the construction of the above statute, it really does appear that the in- tention thereof was, that the relation of assignor and assignee should not in any case be contracted unless by deed. It is clear that, so far at least as regards leases and surrenders, the object of the framers of that statute was, to distinguish between interests in land which might, under the statute of frauds, be created without writing, and interests in land for the creation of which that statute made writing necessary. And the effect of this distinction would appear to be, to leave the law under the 8 & 9 Vict. c. 106, so far as regards leases and surrenders of interests of the former class, in the same state as it was before the passing of that act. Now, although the wording of the statute, as to assignments, is far from being so precise as it might have been, if it was the intention of the framers thereof (r) This statute came into operation on (<) 9 Q. B. 1033. the 1st October, 1845. (u) 9 Q, B. 1035. (s) Botting v. Martin, 1 Camp, 318; and S. C. cited 2 B. Moore, 270, LANDLORD AND TENANT. 459 to deal with them, in the same manner in which they evidently in- tended to deal with leases and surrenders ; yet it is submitted, that the terms used therein are not so precise the other way, as to evince a manifest intention to the contrary. And, such being the case, it is further submitted, that the more reasonable construction of the act would be, to hold that all chattel interests in tenements er hereditaments, except copyhold interests, which can, by law, be created without writing, may now, as heretofore, be assigned by writing merely ; and that an assignment need not be by deed, un- less where the interest assigned is a copyhold interest, or one for the creation of which writing is by law necessary. And an assignment by the sheriff, of a term taken in execution under a writ of fieri facias, must be made in conformity with the provisions of the statute of frauds and of the above act, otherwise such term will still remain in the execution debtor, (a;) But it has been held, that where the parties to a parol demise in- tended thereby to create the relation of landlord and tenant, such a demise will not be construed to be an assignment, so as to make it void within the above statutes, even although it was for the whole of the term which the lessor had in the premises, (jf) 2d. It was also held, under the 3d section of the statute of frauds, that a tenancy from year to year, created by parol, would Term how not be determined by a parol license from the landlord ^operation to quit in the middle of a quarter, and by the tenant of law - quitting the premises accordingly, (z) But where there is an agree- ment between landlord and tenant, that the tenancy shall cease, and that agreement is acted on, there is then a surrender of the term by operation of law. (a) E. g. if the landlord were to give the tenant a parol license or notice to quit in the middle of a quarter, and both parties were to act upon such notice or license ; that is, if the tenant were to quit, and the landlord were to take possession, so as to render it impossible for the tenant to use or occupy the prem- ises, the tenancy would be legally determined thereby. (6) And so, where the tenant removed his goods with the landlord's assent, (x) See Doe d. Hughes v. Jones, 9 M. & (a) Mollett v. Brayne, 2 Camp. 103 ; ■\y. 372. Thompson v. Wilson, 2 Stark. 379. (y) Pollock v. Stacey, 9 Q. B. 1033 ; (a) Phene" v. Popplewell, 31 L. J. C. P. recognizing Poultney v. Holmes, 1 Str. 235; [Talbot v. Whipple, 14 Allen, 177, 405. But see Barrett v. Rolph, 14 M. & 180.] W. 348, in which the authority of this lat- (4) Whitehead v. Clifford, 5 Taunt. 518 ; ter case was doubted. I 460 SUBJECT-MATTER OF CONTEACTS. and then delivered the key to the landlord, and he accepted it, it was held that the jury might infer that the tenancy had been deter- mined, (c) But where a tenant of certain rooms, on his landlord becoming bankrupt, sent the key of the rooms to the office of the official as- signee, where it was left with a clerk, who was told that it was the key of the rooms in question ; and the tenant immediately quitted possession ; it was held, that this did not amount to a surrender by operation of law. (c^) So, a surrender will not be inferred, from the mere fact of the landlord putting up a bill, for the purpose of letting apartments which the tenant has quitted without giving notice, (e) And where the tenant of premises quitted them in pursuance of a notice, which the landlord refused to accept, alleging that it was insufficient, and the landlord afterwards entered and did some repairs, the court held that the tenancy was not determined. (/) And it is held that, in all such cases, the acts from which it is sought to be inferred that the tenancy has been put an end to must be unequivocal. (#) It appears to be settled that if, during the continuance of a demise, the landlord, with the consent of the tenant, let the premises to a new tenant, and put the latter in possession, this amounts to a valid surrender of the original tenant's interest by act and operation of law. (Ji) But it seems that, unless there be a written demise to the new tenant, or he take possession, no surrender of the prior tenancy is effected, (i) So, a mere agreement between landlord and tenant, that the latter shall quit, and another person be substituted as tenant, is not a surrender by operation of law. (&) So, where a tenant from Grimman v. Legge, 8 B. & C. 324 ; Brown W. 682 ; Lyon v. Reed, 13 M. & W. 285, v. Burtenshaw, 7 D. & R. 603. 309 ; Walker v. Richardson, 2 M. & W. (c) Grimman v. Lcgge, 8 B. & C. 324 ; 882 ; Bees v. Williams, 2 Cr., M. & R. 581, Dodd v. Acklom, 6 M. & G. 672. 584 ; Reeve v. Bird, 1 lb. 31 ; Thomas v. (d) Carman !•. Hartley, 9 C. B. 634. Cook, 2 B. & Aid. 119; Phipps o. Scul- (e) Redpath v. Roberts, 3 Esp. 225. thorp, 1 lb. 50 ; Mathews u. Sewell, 8 (/) Bessell v. Landsberg, 7 Q. B. 368. Taunt. 270; Stone v. Whiting, 2 Stark. (<7) Ackland v. Lutley, 9 A. & E. 879, 235 ; Hamerton v, Stead, 3 B. & C. 478 ; 894. Walls v. Atcheson, 3 Bing. 462. (h) Nickells v. Atherstone, 10 Q. B. (i) Taylor u. Chapman, Peake Add. 944 ; Davison v. Gent, 1 H. & N. 744 ; and Ca. 19. Merely receiving rent from the see, generally, as to the doctrine of sur- new occupier will not suffice. Graham v. render by operation of law, Doe d. Whichelo, 1 C. & M. 188. Biddulph v. Poole, 11 Q. B. 713 ; 12 Jur. (k) See Weddall v. Capes, 1 M. & W. 450, 452 ; Doe d. Hull v. Wood, 14 M. & 50 ; Doe d. Murrell v. Millward, 3 M. & LANDLORD AND TENANT. 461 year to year, under a Lady Bay holding, agreed by parol with his landlord's agent, to quit at the ensuing Lady Day, which was within half a year; and the premises were relet by auction, at which the tenant attended and bid ; but the new tenant was not let into pos- session, as the old tenant refused to quit : it was held, that this did not amount to a surrender by operation of law. (V) And where •& defective notice to quit was given, and the landlord verbally assented to it, it was holclen that this did not amount to a surrender by oper- ation of law. (ni) Nor does the mere cancellation of a lease, without a written sur- render, amount to a surrender of such lease by operation of law. (n) And where a lease appeared to have the names of the parties torn off, it was decided that this was neither a surrender by construction of law, nor primd facie evidence of a written surrender, (o) So, an agreement between a landlord and his tenant who held under a lease, that a new lease should be granted to the tenant, and that, in the mean time, the tenant should hold the premises from year to year, was held not to operate as a surrender in law of the existing lease, (ja) But the acceptance by the lessee, of a new lease for a term to commence during the existence of a former demise, operates as a surrender of the first term ; (c[) subject, nevertheless, to an implied, condition, making void the surrender in case the new lease should be void. (r~) To an action for rent, however, the defendant may plead an exe- cuted contract, whereby, in consideration of his giving up possession of the premises before the end of the term, the landlord agreed to abandon his claim for rent. And it is no objection to such a plea, that there does not appear to have been a surrender of the tenant's interest under the statute of frauds, (s) W. 328, 332 ; and note (c) to Reeve v. (p) Foquet v. Moor, 7 Exch. 870. Bird, 1 Cr., M. & R. 31. (?) Lyon o. Reed, 13 M. & W. 285; (I) Doe d. Huddlestone v. Johnson, 1 Hamerton v. Stead, 3 B. & C. 478. M'Cl. & Y. 141. (»") Doe d. Biddulph a, Poole, 11 Q. B. (m) Johnstone v. Huddlestone, 4 B. & 712, 715 ; Doe d. Earl of Egremont v. C. 922. Courtney, lb. 702; 12 Jur.454, 455 ; and (n) Roe d. Berkeley v. York, 6 East, 86 ; see Davison d. Bromley v. Stanley, 4 Burr. S. C. 2 Smith, 166 ; "Wootley v. Gregory, 2210, 2213. 2 Y. & J. 536. (s) Gore v. Wright, 8 A. & E. 118 ; and (o) Doe d. Courtail v. Thomas, 9 B. & see Smith v. Lovell, 10 C. B. 6, 22. C. 288. 462 SUBJECT-MATTER OF CONTRACTS. 6. The Of the tenant being estop- ped from dis- puting his lessor's title. sion under of such pa same rule already in the equity general rule is, that a tenant is estopped from disputing his lessor's title, (t) Therefore, the tenant of glebe land is not allowed, in an action for use and occupation, to show a simoniacal presentation of the plaintiff, his landlord, (w) Nor, where the tenant comes into posses- a party who claims to be devisee, can he dispute the title rty on the ground that the devise was void, (x) And the applies where the tenant either comes in under, or, being possession, agrees to become tenant to one who has only of redemption, (jf) (t) Doe d. Higginbotham v. Barton, 11 A. & E. 307, 312 ; Fleming r. Gooding, 10 Bing. 549 ; Doe d. Knight v. Smythe, 4 M. & S. 347 ; Alchorne v. Gomme, 2 Bing. 54 ; Gravenor v. Woodhouse, 7 Moore, 298 ; Parry v. House, Holt N. P. C. 492, note; [Hawes v. Shaw, 100 Mass. 187; Cobb u. Arnold, 8 Met. 398 ; Coburn r. Palmer, 8 Cush. 124; To wne v. Butter- field, 97 Mass. 105; Galloway v. Ogle, 2 Binney, 468 ; Binney v. Chapman, 5 Pick. 124; George v. Putney, 4 Cush. 351; Jolly v. Arbuthnot, 4 De G. & J. 224 ; Doe v. Heath, 13 Ired. Law, 489 ; Fussel- .man v. Worthington, 14 III. 135; Frazer v. Robinson, 42 Missou. 121 ; Hardy t,-. Akerly, 57 Barb. 148 ; Plumer v. Plumev, 30 N. H. 558. The principle of estoppel operates with full force to prevent a tenant from violating a contract, by which he claimed and held possession from his land- lord. The tenant cannot change the character of the tenure by his own act, so as to hold against his landlord. Willison i>. Watkins, 3 Peters, 47. The same principle applies to a. mortgagor and mortgagee, trustee and cestui que trust, and generally to all cases where one obtains possession of real estate belonging to another by a recognition of his title. Willison v. Wat- kins, 3 Peters, 48, 50 ; Greene v. Munson, 9 Vt. 37 ; Kirk „. Taylor, 8 B. Mon. 262. If a tenant disclaims his tenure, claims ad- versely, or attorns to another, his posses- sion becomes tortious, by forfeiture of his right, and the landlord's right of entry is complete. He may sue at any time, within the period of limitations, but he must lay his demise of a day subsequent to the ter- mination of the tenancy. By bringing ejectment, the landlord disclaims, and is precluded from taking any advantage from the tenancy. He goes then only on the ground of forfeiture. Willison v. Watkins, 3 Peters, 49. See North v. Barnam, 10 Vt. 593 ; Carpenter i>. Thompson, 3 N. H. 204; Worcester v. Green, 2 Pick. (2ded.) 429, n. (1); Feather e. Strahoecker, 3 Penn.505; Blake u. Howe, 1 Aiken, 306; Lord v. Bigelow, 8 Vt. 445 ; Greene v. Munson, 9 Vt. 37 ; Bailey v. Kilburn, 10 Met. 176 ; Benedict v. Morse, 10 Met. 223 ; Cobb v. Arnold, 12 Met. 39. A lease, unfairly obtained from a party in posses- sion of the land, will not prevent the lessee from contesting the title of the lessor. Brown v. Dysinger, 1 Rawle, 408 ; Ham- mond ii. Marsden, 6 Binney, 45. It is said in Swift v. Dean, 11 Vt. 323, that a ten- ant may show that he was induced to ac- knowledge a tenancy by misapprehension of his landlord's title. See Walden v. Bodley, 14 Peters, 156; Brown v. Dy- singer, 1 Rawle, 408. This subject is very thoroughly discussed, and the cases cited and reviewed in an article published in 6 Am. Law Review, 1 ; and in Bigelow on Estoppel, 372 et seq.] (u) Cooke v. Loxley, 5 T. R. 5 ; Lewis i\ Willis, 1 Wils. 314 ; Bull. N. P. 139. (x) Doe d. Marlow v. Wiggins, 4 Q. B. 367. (y) Morton )>. Woods, L. Rep. 3 Q. B. 658 ; (in Cam. Scac), 4 lb. 293. LANDLORD AND TENANT. 463 And where the lessee is estopped, so is any one who claims under him. (2) So, a licensee cannot dispute the title of the party by whom he was let into possession, (a) And where the tenant would be estopped from disput- Lessee can- ing the title of the lessor, he is also estopped from dis- "itie < ol?es- puting that of the lessor's heir or assignee. (5) sor's assignee. So, if a conveyance from the landlord and notice thereof to the tenant be proved, and he remain in possession, he cannot, in an ac- tion for use and occupation, dispute the title of his landlord's as- signee, (c) And the estoppel holds in favor of a reversioner, whose interest is the same as that of a tenant for life, deceased, to whom the defendant was tenant. (^) But in an action for use and occupation, where the defendant did not come in under the plaintiff, the plaintiff can recover rent only from the time he had the legal estate in him, although he may have had the equitable estate long before, (e) The payment of rent impliedly admits a tenancy, and is strono- prirnd facie evidence against the tenant, of the landlord's Effectof pay- title ; (/) even although such rent was paid to an agent mentof rent ; of the latter, who did not disclose his principal. ( "■ for breach of his contract with the lessor, to repair. (Z) beenas- But, in such a case, the lessor himself may sue the lessee, Blgne ' on his contract to repair during the tenancy, for a breach committed during such tenancy, although the lessor may have previously as- signed his reversion, (u) (0) BeNewbery, 28 L. J. C. 7. Trustees v. Rowlands, 9 C. & P. 734 ; per (p) Neale v. Ratcliff, 15 Q. B. 916; Parke and Alderson BB. Turner v. Lamb, and see Coward v. Gregory, L. Rep. 2 C. 14 M. & W. 412, 414. But see per Lord P. 153; Martyn v. Clue, 18 Q. B. 661 ; Holt, Vivian a. Campion, 1 Salk. 141. Dean of Bristol v. Jones, 1 E. & E. 484 ; (s) Smith v. Peat, 9 Exch. 161. Thomas v. Cadwallader, Willes, 496. (t) Standenu. Chrismas, 10 Q.B. 135. {q) Shaw v. Kay, 1 Exch. 412. (w) Bickford v. Parson, 5 C. B. 920. (r) Per Coleridge J. Doe d. Worcester 470 SUBJECT-MATTER OF CONTRACTS. Where, however, the assignee of the reversion can sue the lessee Damages re- for a breach of his covenant to repair, he is entitled to asste r nee < of >y recover damages for such breaches only as have ac- reversion. crued since he became assignee, (x~) It has been held, that if the tenant refuse to repair according to Damages re- agreement, and his landlord, — who is himself a lessee, lessee^aRainst an( ^ hound under pain of forfeiture to keep the premises underiessee j n re p a ir, — enter and repair them without the defend- pairiDg. ant's assent ; the measure of damages, in an action for not repairing, shall be the sum necessarily expended in putting the premises in repair ; Qy~) and that, if the mesne landlord be sued by his lessor for not repairing, and the tenant refuse to repair or to de- fend the action, the damages and costs recovered by the ground landlord in that action, will form the measure of damages in an ac- tion by the mesne landlord against his tenant. (2) But this latter proposition is considered to be no longer law ; and the settled rule now appears to be, that unless the underlease contain a covenant to indemnify, the underiessee is liable only for such damages as neces- sarily result from the breach of his own contract to repair ; and that this rule holds, whether the covenants in the original and those in the underlease be identical in their terms or not. (a) And where the defendant, an underiessee, who had covenanted with the plaintiff, his lessor, to keep, and at the expiration or sooner determination of the term to deliver up the premises in good re- pair, suffered them to be out of repair ; and while they were in this condition, the superior landlord ejected both the plaintiff and the defendant, for a forfeiture committed by the former : it was held, that he was still entitled to recover substantial damages from the defendant for the breach of his covenant. (J) 3. A landlord is not under any obligation to repair the demised premises, unless he has expressly agreed to repair, (c) And it has (x) See Johnson v. St. Peter, Hereford, (b) Davies v. Underwood, 3 H. &N. 570. 4 A. & B. 520; Martyn v. Williams, 1 H. (c) Gott a. Gandy, 2 E. & B. 845; per &N. 817, 825. Twisden J. Pomfret v. Ricroft, 2 Wms. (y) Colley v. Streeton, 2 B. & C. 273. Saund. 321, 322; Pindar v. Ainsley, cited (2) Neale v. Wyllic, 3 B. & C. 533. 1 T. R. 312 ; Leeds v. Cheetham, 1 Sim. (a) Logan v. Hall, 4 C. B. 598 ; Walker 151 ; Brown v. Quilter, Amb. 619. [See u. Hatton, 10 M. & W. 249 ; Penley v. Kramer v. Cook, 7 Gray, 553 ; Leavitt 0. Watts, 7 M. & W. 601 ; and see Smith v. Fletcher, 10 Allen, 121 ; Dutton o. Ger- Howell, 6 Exch. 730 ; Clow v. Brogden, 2 rish, 9 Cush. 89 ; Foster v. Peyser, 9 Cush. M. & G. 39 ; 2 Scott N. B. 303. 242 ; Welles v- Castles, 3 Gray, 326 ; Kel- LANDLORD AND TENANT. 471 been held that, where the lessor covenants to keep in repair the main walls, main timbers, and roofs of the demised T . ..... , ' - Liability of premises ; he is not liable to be sued for a breach of landlord to this covenant, unless he has received notice that the main walls, &c, are out of repair, (d) There are cases indeed in which it has been held, that the tenant is- at liberty to quit without notice, and will be exempt from future rent, if the premises become uninhabitable, or there be no benefi- cial occupation, in consequence of the landlord's default in repair- ing, (e) But it is now settled, that these cases are not law. Thus, it is held, that where the tenant of a house undertakes by his agreement to keep it in as good repair as when he took it, fair wear and tear excepted, he is not entitled to quit upon its becoming uninhabitable for want of other repairs during the term. (/) And in a more recent case it was decided, that even where the agreement contains a stipulation that the landlord shall do the repairs, there is no im plied condition that the tenant may quit if such repairs be not done. O) Nor will the mere fact of a house becoming uninhabitable from want of repair, or of land proving to be unfit for the purpose for which it was taken, afford any answer to an action for the rent. (K) 4. The law implies a promise on the part of the yearly tenant of a farm, that he will use the farm in a husbandlike man- Im ]ied ner, and cultivate the land according to the custom of agreements . . . .to cultivate the country where it is situate, (i) And in an action according to against a tenant, upon promises that he would cultivate the country, the farm " in a good and husbandlike manner, according c ' leuberger v. Foresman, 13 Ind. 475; Tay- (/) Arden v. Pullen, 10 M. & W. lor Land. &Ten.§ 327 e£se?.] What words 321. are sufficient to create a covenant by the () or to pay rent " free from all manner of taxes, charges, and impositions whatsoever ; " (q) or to pay a " net rent." (r) So, if the tenant agree to pay all taxes, rates, duties, and assessments whatsoever, he will he bound to pay a paving rate imposed by commissioners under the authority of a local act. (s) So a tenant of marsh lands, who agreed to pay all outgoings, rates, taxes, scots, &c, was held liable to pay an ex- traordinary assessment made by the commissioners of sewers, for a work of permanent benefit to the lands, (t) So, where a lessee agreed to "pay all taxes, charges, rates, tithes, or rentcharge in lieu of tithe, dues, and duties whatsoever, which then were or should at any time thereafter during that demise be taxed, charged, assessed, or imposed upon the demised premises ; " it was held, that this agreement was not confined to rates payable by the landlord ; but that it included all rates then imposed on the lessee in respect of his occupation ; and all future rates which might be imposed on the land itself, (u) So a rentcharge imposed in lieu of land tax has been held to be a "parliamentary assessment" within the mean. tax, is void, 5 & 6 Vict. c. 35, s. 103. But This means taxes then in force. Davenant aproviso forreducing the rent, in the event v. Salisbury, Vent. 223. But see per Pol- of the property tax being " repealed, anni- lock C. B. Payne v. Burridge, 12 M. & W. hilated, or suspended " during the term, is 727, 729 ; Watson v. Atkins, 3 B. & Aid. good. Colbronu. Travers, 12 C. B. N. S. 647 ; Graham v. Wade, 16 East, 29. 181. The general rule is, that if a statute (q) Bradbury v. Wright, 2 Dougl. 625 ; direct a tenant to pay a tax in the first Cranston v. Clarke, Say. 78. instance, and then deduct it from his rent, (r) Bennett v. Womack, 7 B. & C. 627 ; he must deduct it from the next payment and see Parish v. Sleeman, 29 L. J. C. he makes for rent. Andrew v. Hancock, 1 96. B. & B. 37 ; Spragg v. Hammond, 2 lb. (s) Payne v. Burridge, 12 M.&W. 727. 59; Stubbs v. Parsons, 3 B. & Aid. 516 ; The tenant is liable under a similar cov- Saunderson u. Hanson, 3 C. & P. 314. enant for the expense of drainage works And it has been held, in the case of prop- or paving, done upon the premises under erty tax paid by the tenant under 5 & 6 " The Metropolis Local Management Act, Vict. <;. 35, s. 60 (and see 16 & 17 Vict. c. 1855 ; " Sweet v. Seager, 2 C. B. N. S. 34, ». 40), that if he do not so deduct it, 119; Thompson u. Lapworth, L. Rep. 3 he cannot afterwards recover the amount C. P. 149. As to the distinction between as money paid to the use of the landlord, these cases and Tidswell v. Whitworth, Cumming v. Bedborough, 15 M. & W. L. Rep. 2 C. P. 326, see per Willes J. 438. The sum paid for property tax, may Thompson u. Lapworth, L. Rep. 3 C. P. be set off in an action for the next rent. 149, 159. Franklin v. Carter, 1 C. B. 750. (t) Wallers Andrews, 3 M. & W. 312. (p) Amfield u. White, 1 R. & M. 246. (u) Hurst v. Hurst, 4 Exch. 571, 577. 474 SUBJECT-MATTER OF CONTRACTS. ing of an agreement containing those terms, (x) So the land tax is a " parliamentary tax ; " (y) but a sewers rate is not. (2) And where a land-owner was liable, amongst others, to repair a bridge, ratione tenures ; and a statute was passed enabling the land-owners to make and levy rates for such repairs, according to the value of the lands chargeable, but it contained no provision which extended the ultimate liability to lessees or occupiers : it was held that, under a covenant to pay " all parliamentary taxes," the lessee of such land-owner was not liable to pay a rate made for the repair of the bridge, (a) 4. Of Notices to Quit. 1. In the case of a tenancy from year to year of a house or land, When aeces- the law requires, in the absence, that is, of any express sary- agreement, or immemorial custom or usage to the con- trary, that, in order to determine such tenancy, one party should give to the other half a year's (b~) notice to quit, expiring at that period of the year when the tenancy commenced, (c) Nor does (x) Governors of Christ's Hospital v. Harrild, 2 M. & G. 707 ; 3 Scott N. R. 126. (y) Manning v. Lunn, 2 C. & K. 13. (z) Palmer v. Earith, 14 M. & W. 428. As to when the tenant is not entitled to deduai land tax or sewers rate in respect of the improved value, but only upon the original rent, see Watson v. Home, 7 B. & C. 285 ; Smith v. Humble, 15 C. B. 321. (a) Baker v. Greenhill, 3 Q. B. 148. (b) Not six months' notice ; per Patteson J. Doe d. Williams u. Smith, 5 A. & E. 350, 351 ; Johnstone v. Huddlestone, 4 B. & C. 922, 9.32. Notice on 28th September, to quit 25th March, good; Roe v. Doe, 6 Bing. 574 ; Doe d. Harrop r. Green, 4 Esp. 199. (c) Year Book, 13 Hen. 8, 15 b; Right a. Darby, 1 T. R. 163 ; Doe v. Browne, 8 East, 165 ; Richardson v. Langridge, 4 Taunt. 128. See Doe v. Johnstone, 1 M'Cl. & Y. 141. [Chancellor Kent remarks that " the English rule of six months' notice prevails in many of the United States, as in New York, Vermont, Ken- tucky, and Tennessee; but there is a variation in the rule, or perhaps no fixed established rule on the subject, in other parts of the United States. Jackson o. Bryan, 1 John. 322 ; Hanchett v. Whitney, 1 Vt. 311 ; Hoggins v. Becraft, 1 Dana, 30 ; Trousdale v. Darnell, 6 Yerger, 431." 4 Kent, 112, 113. This subject is now regulated by statute in Massachusetts, so that all estates at will may be determined by either party by three months' notice in writing for that purpose, given to the other party ; and where the rent reserved in such lease is payable at periods of less than three months, the time of such notice shall be sufficient, if it be equal to the interval between the days of payment. Rev. St. of Mass. ch. 60, § 26 (Gen. Sts. c. 90, § 31) ; Howard v. Merriam, 5 Cush. 571 ; Whitney v. Gordon, 1 Cush. 266. Under this statute it has been decided that the notice, when the rent is payable at periods of less than three months, must not only be as long as the interval between the days of payment, but must terminate at the expiration of such an interval. Prescott v. Elm, 7 Cush. 346 ; Bay State Bank u. Kiley, 14 Gray, 492 ; Sanford v. Harvey, 1 1 Cush. 93 ; Walker v. Sharpe, 14 LANDLORD AND TENANT. 475 the death of either party operate as a determination of the tenancy ; but every one who claims under the original lessor, must give, and is entitled to receive, a notice to quit, (ci) Accordingly, a tenant for life claiming under the original lessor ; (e) or an infant who be- comes entitled to the reversion, cannot determine the tenancy, ex- cept by a regular notice to quit. (/) So a mortgagee must give notice to quit, to a party who became tenant before the execution of the mortgage. (#) And if a remainderman affirm a letting which he might have avoided, he cannot afterwards determine the tenancy, without giving a notice to quit, expiring at the period of the year when the tenant entered. (K) But a mere application to the tenant by the remainderman, to pay rent to him, or to attorn him, will not affirm such letting so as to render a notice to quit necessary, (i) So, a notice to quit is primd facie necessary, in all those cases in which a tenancy from year to year is created by implication, e. g. by receiving rent, or by other acts recognizing the existence of the relation of landlord and tenant. (¥) But a notice to quit is not .[necessary, where the relation of land- lord and tenant does not exist, although a compensation _, .' f \ When not. for the enjoyment of the premises has been received ; (J) or where a man without the privity of the landlord, gets into pos- session of a house, and they afterwards enter into a negotiation for a lease, but differ as to the terms, (to) So, where one member of a firm is to occupy a house of his copartners, during the continu- Allen, 43. By the revised laws of Indiana, Rex v. Inhabitants of Stone, 6 T. R. 295 ; it is provided that there shall be only Parker v. Constable, 3 Wils. 24 ; see, how- three months' notice, immediately preced- ever, Doe ') Right v. Beard, 13 East, 210 ; u. Olley, 12 A. & E. 481 ; Doe v. Tom, 4 Hegan v. Johnson, 2 Taunt. 148; Doe v. Q. B. 615. [In New York it has been Boulton, 6 M. & S. 148. Other instances, held, that a mortgagor is entitled to notice Ad. Eject. 3d ed. 121. to quit before he can be treated as a tres- (s) Doe d. Jones v. Jones, 10 B. & C. passer, on the ground that there is an im- 718 ; and see Wilkinson v. Malin, 2 Tyr. plied consent and agreement between him 544. As to expelling a pauper from a and the mortgagee, that the former may parish house, Wildbor v. Rainsforth, 8 B. continue to occupy the premises. Jackson & C. 4. v. Longhead, 2 John. 75 ; Jackson v. Eul- (t) Lapiere v. MTntosh, 9 A. & E. 857. ler, 4 John. 215; M'Kercher v. Hawley, («) Doe d. Tilt v. Stratton, 4 Bing. 16 John. 289.] 446. LANDLORD AND TENANT. 477 So it is obvious that a notice to quit is unnecessary, wherever the tenant holds for a fixed and limited period, or until a certain event occurs.. (a;) So, where a tenant sets his landlord at defiance, and disclaims his title, and denies that he holds of him, or attorns to, or Effect of dis- agrees to hold under (y) some other person, no notice caimer ' to quit need be given, (z) But in order to make a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation of what landlord and tenant ; or to a distinct claim to hold pos- amoun 9 ° - session of the estate, upon a ground wholly inconsistent with the ex- istence of that relation, (a) And therefore, an omission to acknowl- edge the landlord as such, by requesting further information ; or a mere refusal to pay rent, will not amount to a disclaimer. (5) So, the mere payment of rent to a third person, instead of to the lessor, is not a sufficient disclaimer to render a notice to quit un- necessary, (c) Nor, where the tenant holds under a lease for a definite term of years, will he forfeit his term by orally refusing to pay rent, and claim the fee as his own. (&) But where the defendant held premises under a tenant for life, (x) Cobb v. Stokes, 8 East, 358 ; Mes- 294 ; Ellis v. Paige, 1 Pick. 47 ; nor upon senger v. Armstrong, 1 T. R, 54 ; [Creech partition between tenant in common, one v. Crockett, 5 Cush. 136 ; Elliott v. Stone, of -whom was the lessor; Rising v. Stan- 1 Gray, 574 ; Hollis v. Pool, 3 Met. 351 ; nard, 17 Mass. 282, 286 ; nor when the Dorrell v. Johnson, 17 Pick. 263, 266; tenant at will assigns his estate; Cooper Danforthu. Sergeant, 14 Mass. 49; Eifty v. Adams, 6 Cush. 87 ; Pratt v. Farrar, 10 Associates v. Howland, 11 Met. 99 ; S. C. Allen, 520 ; nor to terminate a tenancy at 5 Cush. 214, 218 ; Ashley v. Warner, 11 sufferance in any case ; Kinsley v. Ames, Gray, 43 ; Curtis v. Galvin, 1 Allen, 215. 2 Met. 29 ; Howard v. Merriam, 5 Cush. Notice is not necessary when the lessor at 571. Notice is necessary, though there be ■will alienes the estate. Howard v. Mer- an express verbal agreement that the ten- riam, 5 Cush. 563, 574 ; Hollis v. Pool, 3 ant may quit when he pleases. Batchelder Met. 350; Benedict v. Morse, 10 Met. v. Batchelder, 2 Allen, 105.] 223 ; Rooney v. Gillespie, 6 Allen, 74 ; (y) Doe d. Davies v. Evans, 9 M. & W. McFarland v. Chase, 7 Gray, 462. So, 48. when the lessor at will makes a written (z) Bull. N. P. 96 ; Doe d. Williams v. lease of the premises to a third person. Pasquali, Peake, 167; Bower v. Major, 1 Furlong v. Leary, 8 Cush. 409 ; Kelly v. B. & B. 4. Waite, 12 Met. 300 ; Hildreth v. Conant, (a) Doe d. Gray v. Stanion, 1 M. & W. 10 Met. 298 ; Pratt v. Earrar, 10 Allen, 695, 703. And see Jones v. Mills, 10 C. B. 519; Dillon v. Brown, 11 Gray, 179; N. S. 788. Mizner v. Monroe, 10 Gray, 290. Notice (b) Williams v. Pasquali, Peake, 197. to quit is not necessary in case of tenancy (c) Doe d. Dillon v. Parker, Gow, 180. at will upon the death of either the lessor (d) Doe d. Graves v. Wells, 10 A. & E. or the lessee; Eerrin v. Kenney, 10 Met. 427. 478 SUBJECT-MATTER OF CONTRACTS. on whose death possession was claimed and rent demanded by the heir at law of the devisor ; whereupon the defendant wrote to the attorney of the heir at law, stating that he held as tenant to J. S., the husband of the tenant for life, in right of his wife, that he had never considered the claimant as the landlord of the house ; that he should be ready to pay the arrears to any person who should be proved to be heir at law ; but that he must decline taking upon him- self to decide upon the claim made on him, without more satisfac- tory proof in a legal manner : it was held, that this letter amounted to a disclaimer of the title of the heir at law, and that he was not bound to give a notice to quit. («) And the disclaimer, to be effectual, must appear to have been antecedent to the day of the demise, as laid in the declaration. (/) 2. It is scarcely necessary to observe, that the notice to quit R must be given by the person who is, at the time, in legal should be contemplation the landlord of the tenant in posses- given. . sion. (g) Thus, where lands were let by "the churchwardens and over- seers " of a parish, it was held that a notice to quit, given on be- half of the persons who were churchwardens and overseers at the time of the letting, was good, although it purported to be given, as well on their behalf as on behalf of the then churchwardens and . overseers of the parish. (A) So, if the tenant took the premises from A., a notice from the latter only is sufficient, although he sub- sequently entered into partnership with B., and the receipts for rent were given in their joint names ; provided there be no evi- dence of B. having acquired any legal interest by a transfer from A.(0 The steward of a corporation is a sufficient agent to give a no- tice to quit corporate lands, although he have no power to that effect under the corporate seal. (&) And a re- ceiver appointed by the court of chancery, with power to let lands, (e) Doe d. Calvert u. Frowd, 4 Bing. (g) Brawley v. Wade, M'Cl. 634. 557 ; and see Doe d. Phillips v. Nollings, (h) Doe d. Bailey v. Foster, 3 C. B. 4 C. B. 188; Doe d. Cheese v . Creed, 5 215. Bing. 327 ; Doe d. Clunn v. Clarke, (i) Doe v. Baker, 8 Taunt. 241. Peake's Add. Ca. 239. See Doe d. Grubb (k) Roe d. Dean of Rochester v. Pierce, v. Grubb, 10 B. & C. 816. 2 Campbell, 96; Doe v. Fillis, 2 Chit. (/) Doe d. Lewis v. Cawdor, 1 Cr., M. 170. & R. 398. LANDLORD AND TENANT. 479 may also give notice to quit them. (I) But a mere receiver of rents appears not to have a sufficient authority to give a notice to quit, (w) And " the notice, to be good, ought to be binding on all the par- ties concerned at the time it was given, and not to depend for its validity, in part, upon any subsequent recognition of one of them ; because the tenant is to act upon the notice at the time, and there- fore it should be such as he may act upon with security." (n) Therefore, where a notice to quit is given by the agent of a land lord, the agent ought to have authority to give it at the time it be- gins to operate ; and a subsequent recognition of the authority of the agent will not render the notice valid, (o) But where notice to quit is given by a general agent, it is not es- sential to the validity of such notice, that the fact of his agency should appear on the face of the document itself, (p) In Doe d. Aslin v. Summersett, (jj) it was decided, that a notice to quit, signed by one of several joint tenants on behalf joint ten- of himself and others, will determine a tenancy from aats ' year to year as to all. (r) And Lord Tenterden, in delivering the judgment of the court, said : " When joint tenants join in a lease, each demises his own share ; (s) and each may put an end to that demise as far as it operates upon his own share, whether his companions will join with him in putting an end to the whole lease or not: Doe, Lessee of Whayman, v. Chaplin, (t) . . . . But though, upon a joint lease by joint tenants each demises his own share, this is not the only operation of such a lease. Joint tenants are seised, not only of their respective shares, per my, but also of the entirety, per tout, (u) The rent reserved will inure jointly to (I) Wilkinson v. Colley, 5 Burr. 2694 ; (p) Jones v. Phipps, L. E. 3 Q. B. 567. Doe d. Marsack v. Bead, 12 East, 57, 61. (q) 1 B. & Ad. 135. See Goodtitle v. (m) See per Parke J. Doe d. Mann v. Woodward, 3 B. & Aid. 689. The de- Warlters, 10 B. & C. 626, 633. cision in the latter case seems to be eor- (n) Per Lawrence J. Bight d. Fisher v. rect ; but the reasons for it, as given in the Cuthell, 5 East, 491, 499 ; and see per Cur. report, appear to be unfounded. See Doe Doe v. Goldwin, 2 Q. B. 143, 146. [To v. Summersett, 1 B. & Ad. 135, and per terminate a tenancy in accordance with an Parke J. in Doe v. Warlters, 10 B. & C. agreement between the parties, the notice 634; Ad. Eject. 3d ed. 126, n. (b). must conform to the terms of the agree- (r) And per Parke B. Doe d. Kinders- ment. Oakes v. Munroe, 8 Cush. 288; ley v. Hughes, 7 M. & W. 139,141 ; Alford Baker v. Adams, 5 Cush. 99.] v. Vickery, Car. & M. 280. (o) Per Parke B. Buron v. Denman, 2 (s) Co. Litt. 186 a. Exch. 167, 188; and see Doe d. Mann v. (t) 3 Taunt. 120. Warlters, 10 B. & C. 626; Doe d. Bhodes (u) Lit. sect. 288. As to the meaning v. Bobinson, 4 Scott, 396. of this phrase, see 7 C. B. 455, n. (a). 480 SUBJECT-MATTER OP CONTRACTS. all the lessors ; (x) and if any of them die, the lessee shall hold the whole as tenant to the survivors. Upon a joint demise by joint tenants upon a tenancy from year to year, the true character of the tenancy is this ; not that the tenant holds of each the share of each, so long as he and each shall please, but that he holds the whole of all, so long as he and all shall please ; and as soon as any one of the joint tenants gives a notice to quit, he effectually puts an end to that tenancy ; the tenant has a right upon such a notice to give up the whole ; and unless he comes to a new arrangement with the other joint tenants, as to their shares, he is compellable so to do." So, where the landlords are partners in trade, a notice in the „ ^ names of all, signed by one, is sufficient. In such a case Partners. ° J ' an authority from the other partners to give the notice, may, if necessary, be presumed ; and thus the tenant has a notice which he can safely act upon, (jf) And where there are several lessors, joint tenants, a notice to quit given by a person authorized by one of them, determines the tenancy as to all. (z) But where a lease contained a proviso, that in case either the Where there landlord or the tenant, or their respective heirs and is a contract. eX ecutors, wished to determine the tenancy at the end of the first fourteen years, and should give six months' notice in writing, " under his or their respective hands," the term should cease : it was held, that a notice to quit signed by two only of three executors of the original lessor, — to whom he had bequeathed the freehold as joint tenants, — expressing the notice to be given on behalf of themselves and the third executor, was not a sufficient compliance with the terms of the proviso, and was therefore inop- erative, although the third executor subsequently recognized such notice, (a) And a notice to quit, given to a tenant of lands origi- nally devised to the rector and churchwardens of a parish, and their successors, in trust, signed by the rector and' churchwardens, re- quiring him to deliver up the premises " to the rector and church- wardens/or the time being," is ill. (5) 3. The notice to quit may be served by the landlord upon the (x) Co. Litt. 47 a, 192 a, 214 a. 491 ; 2 Smith, 83 ; observed upon by Lord (y) Doe d. Elliott v. Hulme, 2 M. & R. Tenterden C. J. in Doe v. Sumniersett, 1 433. B. &Ad. 141. (2) Doe d. Kindersley v. Hughes, 7 M. (b) Doe d. Brooks v. Fairclough, 6 M. & W. 139. & S. 40. , (a) Right d. Fisher u. Cuthell, 5 East, LANDLORD AND TENANT. 481 party who is tenant, either personally, upon or off the premises ; or by leaving it with the tenant's wife or servant at Towhom the usual place of abode of such tenant ; (c) or it may "houlVbe 1 ' 1 ' 1 be sent by post ; and it will then be a question for the e iven - jury at what time it was delivered. Because, if it was delivered in time, the notice will be good, although the person to whom it was directed did not actually receive it in time, (d) And it seems that where the wife or servant of the tenant is served upon the prem- ises, the notice is absolutely sufficient ; although it be proved that in fact the notice did not reach the tenant. (. Fessenden, 14 Allen, 124; machinery fastened only by its own weight, and tools and stock of metal, and also light machinery so fastened 494 SUBJECT-MATTER OF CONTRACTS. may have been his right before the new lease was granted, (h) But where the conveyance was of " all fixtures, trees, hedges, &c," it was doubted whether this would pass chattels removable as fix- tures, (i) Where the conveyance is not general, but contains a stipulation that the fixtures " are to be taken at a valuation," the question as to what fixtures shall be valued should, in the absence of a schedule or other specification, be determined with reference to the relative situation in which the parties are placed by the conveyance. If an absolute sale of the premises take place, those things only should be valued which would be deemed personal assets, as between the heir and the executor, and which would not pass with the inheritance ; but if there be a demise only, or an assignment of a lease, the valu- ation might extend to all that would be considered tenant's fixtures, as between landlord and tenant, and which the latter would be allowed to remove, if he himself had put them up during his term. As to the operation of the statute of frauds, 29 Car. 2, c. 3, upon st tute of contracts exclusively for the sale of fixtures, it appears to frauds. De settled that such contracts are valid, without the formalities prescribed by the 4th section of that statute. A trans- fer of fixtures, simply, appears to be nothing more than a transfer of the right which the vendor has, to sever certain chattels attached to the soil, but not part of the freehold. Such transfer, therefore, passes no interest in the realty ; and accordingly it does not come within the operation of the 4th section of the statute. (k~) as to be removed without material injury, (lc) See Hallen v. Runder, 1 Cr., M. & and which is only used in connection with R. 266, 273 ; and per Parke B. Horsfall v. other machinery which is not a fixture; Kay, 17 L. J. Exch. 266. [Fixtures at- McLaughlin v. Nash, 14 Allen, 136 ; tached by a tenant will not pass by a bill bowling alleys, with the usual appurte- of sale made by him while in possession ; nances, erected by a tenant ; Hannahan there must be severance before the sale ; o. O'Reilly, 102 Mass. 201 ; a marble slab, while they are attached to the realty, they laid upon, but not fastened to brackets ; can be sold only as a part of the realty. Weston v. Weston, 102 Mass. 514. Adap- Bliss o. Whitney, 9 Allen, 114. Butbuild- tation, how far important; Park v. Ba- ings which are sold without the land on ker, 7 Allen, 78; McLaughlin v. Nash' which they stand, with the intention of all 14 Allen, 136 ; Bainway v. Cobb, 99 Mass. parties to sever them from the land, pass 457; Hannahan v. O'Reilly, 102 Mass. to the purchaser, with the right to remove 204.] And see Amos, 2d ed. 214, 220, them as personal property within a reason- and the cases there cited. able time. Shaw v. Carbrey, 13 Allen, (A) Thresher u. East London Water- 462 ; Nelson v. Nelson, 6 Gray, 385 ; Bost- works Co. 2 B. & C. 609. wick v. Leach, 3 Day, 476.] (t) Wiltshear v. Cottrell, 1 E. & B. 774, 690. LANDLORD AND TENANT. 495 And so a reversionary interest in trade fixtures will pass to a pur- chaser under a parol agreement. (I) But the price or value of fixtures cannot be recovered under a count for " goods " sold and delivered ; the count should Price of, can- be for the price and value of " fixtures, chattels, and ef- "red"'™ C ° V " fects " bargained and sold, (m) If, however, the fix- ? 1 ou °^ d f g or tures be appraised by agreement of the parties, such ap- sold." praisement will be considered as an ascertainment of the price, by the parties themselves ; and their value may be recovered under a count on an account stated, if the defendant has adopted the valua- tion, (n) 2. Of Fixtures as between Landlord and Tenant. And as to these we would remark, generally, first, that it is not material, so far as regards the tenant's right to remove „ . fixtures, whether he held for life, or merely from year to tenancy im- year ; nor is there any distinction as to this right, be- tween a tenancy created by deed, and one which is created by parol ; and, secondly, that, unless the parties have other- Fixtures wise agreed, those fixtures which are removable must be movedtiurl removed before the expiration of the tenancy ; (o) ln s the term. the rule to be collected from all the cases being, that the tenant's right to remove fixtures continues only during his original term, and during such further period of possession by him, as he holds the premises under a right still to consider himself as tenant. (p~) And this rule applies whether the term be determined by lapse of time, (/) Per Cresswell J. Petrie v. Dawson, Taunt. 188, 191 ; [Bliss v. Whitney, 9 Al- 2 C. &K. 138. len, 115.] (m) Nutt v. Butler, 5 Esp. 176; Lee v. (p) London Loan & Discount Co. v. Risdon, 7 Taunt. 188 ; and see Salmon v. Drake, 6 C. B. N. S. 798, 810 ; Weeton v. Watson, 4 Moore, 73; Knowles v. Michel, Woodcock, 7 M. & W. 14, 19; Minshall 13 East, 248 ; Pitt v. Shew, 4 B. & Aid. v. Lloyd, 2 M. & W. 456, 460 ; Macintosh 206 ; Attorney General v. Gibbs, 3 Y. & J. v. Trotter, 3 M. & W. 184, 186 ; Hallen v. 333. But if the landlord sever fixtures Runder, 1 Cr., M. & R. 266,275. [See under a distress, an action will lie to re- Whiting ». Brastow, 4 Pick. (2d ed.) 311, cover them, by the description of goods notes (2) and (3). After the end of the and chattels. Dalton v. Whittem, 3Q.B. term, the tenant can neither remove fix- 9gl_ tures nor recover their value from the land- (n) Salmon v. Watson, 4 Moore, 73. lord. White v. Arndt, 1 Whart. 91. A See Neal v. Viney, 1 Camp. 471 ; Leeds v. tenant at will, after the expiration of his Burrows 12 East, 1. tenancy, cannot reenter and remove win- (o) See Poole's case, 1 Salk. 368 ; 1 dows placed by himself in a dwelling-house Atk. 447; Amb. 113; Lee v. Risdon, 7 upon the premises ; S tate v. Elliott, 11 N. 496 SUBJECT-MATTER OF CONTRACTS. Mortgagee of fixtures may remove them, after surren- der of term. License to enter and re move, after the term, must be un- der seal. or by the entry of the landlord for an act of forfeiture committed by the tenant. (5) But where the lessee mortgages tenant's fixtures, and afterwards surrenders his lease, the mortgagee has still the right, during the period over which the term ex- tended, to enter and sever them, (r) And a license by the landlord to the tenant, to enter upon the premises after the expiration of the term, for the purpose of removing fixtures, is not valid unless it be under seal, (s) But the right to fixtures may of course be varied by contract. And we may, therefore, for the sake of perspicuity, examine the rights of these parties : first, Independently of any contract ; and secondly, Where a contract exists. 1st. It has been already observed, that the ancient rule, that whatever the tenant has annexed to the freehold during Independent- . . , , . . lyofcon- the term, cannot be afterwards removed by him or Ins representatives or assigns, is always less rigorously con- strued in favor of the tenant, in cases between him and his landlord, than in other instances ; and that the grounds upon which the rule has been relaxed, have reference chiefly to the purpose for which the annexation was made, (t) The earliest innovation on the old rule was in favor of articles erected by the tenant solely for the purposes of trade or manufac- ture ; (11) and a like exception was afterwards extended to many tenant at sufferance, to sever fixtures dur- ing the time he continues in possession as such tenant ? Leader v. Homewood, 5 C. B. N. S. 546, 553. (7) Weeton u. Woodcock, 7 M. & W. 14. [Sec Peck t>. Knox, 1 Sweeny (N. Y.), 311.] (i) London & Westminster Loan and Discount Co. ... Drake, 6 C. B. N. S. 798. (s) Roffey v. Henderson, 17 Q. B. 574. (t) A11U, 489. («) The following rule will, perhaps, be found most consistent with the decided cases ; that things which a tenant has fixed to the freehold for the purposes of trade or manufacture, may be taken away by him wherever the removal is not con- trary to any prevailing practice; where the articles can be removed without caus- H. 540 ; see Holmes v. Tremper, 20 John. 29 ; Gaffield v. Hapgood, 17 Pick. 192 ; nor any other fixtures, which he would have a right to remove during his term, although he rightfully comes again into possession of the premises under another lease. Shepard v. Spaulding, 4 Met. 416. An entry and removal of fixtures after the tenancy expires, has been held to be a tres- pass as to the entry only. Pcmberton v. King, 2 Dev. 376. But see State u. El- liott, 11 N. H. 540, where it was held that the owner of the estate, after such removal, may immediately follow and retake the ar- ticles removed from the possession of .the tenant, using no more force than is neces- sary for that purpose.] Qucere, whether the rule stated in the text authorizes a tenant who holds over, and is become LANDLORD AND TENANT. 497 fixtures, slightly put up, merely for the ornament of a house, or for domestic use. (x) There are also instances in which fixtures set up partly in relation to trade, and partly for purposes unconnected with trade, have been held removable. («/) But with reference to the tenant's right to agricultural fixtures, the rule does not appear to have been relaxed in an equal degree. (z~) It is, however, foreign to the purpose of this treatise to enter into a detail of the various decisions upon this subject ; but still it may be useful to present to the reader, lists of those fixtures which have been respectively decided to be, and not to be, removable. The first list comprises things not removable by the tenant ; the second, things removable, not being mere trade fixtures ; and the third com- prehends mere trade fixtures held to be removable. It is, however, proper to remark, that the reader must not assume that in no instance can the articles enumerated be excepted from the authority of the particular decisions respecting them ; for the courts have so frequently laid stress upon the particular circum- stances of the case before them, or the peculiar state or position of the fixture in question, that few decisions can be regarded as abso- lute authorities, even in cases which have reference to fixtures of a similar denomination. \st. Things held Agricultural erections, (a) Alehouse bar. (6) Barns fixed in the ground, (c) Beast-house, (c) Benches, (d) not to be removable. Box-borders, (e) Carpenter's shop. (/) Cart-house, (g) Chimney-pieces (in general), (g) ing material injury to the estate ; and where they were in themselves of a perfect chattel nature before they were put up, or at least have in substance that character, independently of their union with the soil ; or, in other words, where they may be re- moved without being entirely demolished or losing their essential character or value. " It is not, however, meant to be inferred, that because, in any particular instance, these circumstances do not all concur, that therefore an article cannot be removed by the tenant." Amos, 43, 44. (x) See Avery v. Cheslyn, 3 A. & E. 75 ; Leach v. Thomas, 7 C. & P. 327 ; Grymes v. Boweren, 6 Bing. 437. {y) Amos, 61. vol. I. 32 («) 2 Smith L. C. 117 ; per Lord Ellen- borough, Elwes v. Maw, 3 East, 38 ; but see now, by statute 14 & 15 Vict. u. 25, ». 3. [See White v. Arndt, 1 Whart. 94 ; Van Ness v. Packard, 2 Peters, 137 ; Farris u. Walker, 1 Bailey, 540 ; Pemberton u. King, 2 Dev. 376.] (a) Elwes a. Maw, 3 East, 38. (b) 2B1. 1111. (c) Elwes v. Maw, supra. (d) Am. & F. on Fixtures, 68, 151, 156. (e) Empson v. Soden, 4 B. & Ad. 655. (f) Elwes v. Maw, supra. {g) Poole's case, 1 Salk. 368 ; Am. & F. on Fixtures, 81, n. (a) ; and see Leach v. Thomas, 7 C. & P. 327. 498 SUBJECT-MATTER OF CONTRACTS. Conservatories. (A) Doors, (i) Dressers, (i) Flowers, (k) Foldyard walls. (I) Fruit-trees, (m) Fuel-house, (n) Glass windows, (o) Hearth, (p) Hedges, (q) Improvements (permanent.) (r) Jibs, (s) Keys, (t) Locks, (t) Millstones, (u) Partitions, (x) Pigeon-house, (y) Pineries substantially affixed, (z) Pump-house, (o) Racks in stables, (b) Strawberry-beds, (c) Trees, (d) Wagon-house, (e) Windows. (/) 2d.- Things held to be removable [not being Trade Fixtures). Arras hangings, (g) Barn set on blocks, &c. (h) Beds fastened to ceiling, (i) Bells, (k) Bins, (k) Blinds. (I) Book-cases, (m) Buildings set on blocks, rollers, pillars, &c. (n) Cabinets, (o) Chimney-backs, (p) Chimney-glasses, (q) Chimney-pieces (ornamental), (r) (h) Buckland v. Butterfield, 2 B. & B. 54. (i) 2 Bl. 1111 ; Am. & F. on Fixtures, 5, note, 183. (k) Per Littledale J. Empson v. Soden, mpra. (I) Elwes v . Maw, supra. (m) Windham v. Way, 4 Taunt. 316. (n) Elwes v. Maw, supra. (o) 4 Co. 64. (p) Poole's case, 1 Salk. 368. (q) Per Parke J. Empson v. Soden, supra. (r) Buckland v. Butterfield, 2 B. & B. 54. (s) Davis v. Jones, 2 B. & Aid. 165. (t) Lady St. John v. Pigot, 2 Bulst. 103 ; Liford's case, 11 Co. 50 ; Amos, 183, 184. (u) Am. & F. on Fixtures, 6, n. [The agent of the owner of a grist-mill having inserted into it his own mill-stones and mill-irons, it was held, that he could not lawfully sever them again. Goddard v. Bolster, 6 Greenl. 154.] (x) 2 Bl. 1111. (y) Elwes v. Maw, 3 East, 38. (z) Buckland v. Butterfield, 2 B. & B. 54. (a) Elwes v. Maw, 3 East, 38. (6) 2 Vent. 214. (c) Wetherell v. Howells, 1 Camp. 227. (d) Per Parke J. Empson v. Soden, 4 B. & Ad. 655, 657. (e) Elwes v. Maw, supra. (/) Co. Litt. 53 a; 4 Co. 64. [The main-wheel and gearing of a factory, at- tached to the factory and necessary for its operation, are real estate, to which the right of dower attaches. Powell v. Mon- son & Brimfield Manuf. Co. 3 Mason, 459.] (g) Boll. 216. (h) Wansbrough o. Maton, 4 A. & E. 884; Cullens v. Tuffnell, B. N. P. 34; Elwes v. Maw, supra. (j) Ex parte Quincey, 1 Atk. 477. (k) See Am. & F. on Fixtures, 278, note. (/) Colegrave v. Dias Santos, 1 B. & C. 77. (m) Am. & F. on Fixtures, 278, note. (n) Elwes v. Maw, supra. (o) Am. & F. on Fixtures, 278, note. (p) Harvey v. Harvey, Str. 1141. (q) Beck v. Rebow, 1 P. Wms. 94. (r) Bishop o. Elliott, 11 Exch. 113, 121 ; Elwes v. Maw, supra. See Am. &F on Fixtures, 81, n. (a) ; 6 Bing. 439, per Tindal C. J. LANDLORD AND TENANT. 499 Cider mills, (s) Cisterns, (t) Clock cases, (u) Coffee-mills, (x) Cooling-coppers, (y) Coppers, (z) [Corn-bins made of movable boards.] (z 1 ) Cornices (ornamental), (a) [Crane and pulley used in a store.] (a 1 ) Cupboards. (6) Dutch barns, (c) Furnaces, (d) Furniture, fixtures put up as. (e) Granary on pillars, (f) Grates, (g) , Hangings. (A) Iron backs to chimneys, (h) Iron chest, (t) Iron malt-mills, (h) Iron ovens. (/) Jacks. (/) Lamps, (m) Looking-glasses, (n) Malt-mills, (o) Marble-slabs, (p) Mash tubs, (q) Mills on posts, (r) Mills laid on brick foundation, (s) Ovens, (t) [Padlock for corn-house.] (t 1 ) Pattens, erections on. («) , Pier-glasses, (x) Posts, (y) Presses, (z) Pumps slightly attached, (a) Rails, (b) Ranges, (c) Sheds, (d) -» (s) Lawton u. Lawton, 3 Atk. 12 ; [Holmes v. Tremper, 20 John. 29.] (<) Am. & F. on Fixtures, 278, note; [Wall v. Hinds, 4 Gray, 256.] (u) 4 Burn's Eccl. Law, 7th ed. 301. (x) Rex v. The Inhabitants of London Thorpe, 6 T. R. 379. (y) Colegrave a. Dias Santos, 1 B. & C. 77. (z) Per Tindal C. J. 6 Bing. 439. (z 1 ) [Whiting v. Brastow, 4 Pick. 310.] (a) Avery v. Cheslyn, 3 A. & E. 75. (a') [Gray v. Holdship, 17 Serg. & R. 415.] (6) Rex v. The Inhabitants of St. Dunstan, 4 B. & C. 686. (c) Dean v. Allalley, 3 Esp. 1 1 ; but see Elwes v. Maw, 3 East, 47, 55 ; Amos, 32. (d) Year Book, 8 Hen. 7, 12, 20 ; lb. 13 ; Am. & F. on Fixtures, 69. (e) Am. & F. on Fixtures, 67. (/) Am. & F. on Fixtures, 146, note; or laid on a wooden foundation, supported by staddles; Wiltshear v. Cottrell, 1 E. & B. 674. (g) Rex v. The Inhabitants of St. Dun- stan, 4 B. & C. 686 ; per Tindal C. J. 6 Bing. 439. (h) Harvey v. Harvey, Str. 1141. (t) Am. & F. on Fixtures, 278, note. (k) Rex v. The Inhabitants of London Thorpe, 6 T. R. 379. (I) 4 Burn's Eccl. Law, 7th ed. 301. (m) Am. & F. on Fixtures, 278, note. (n) Beck v. Rebow, 1 P. Wms. 94; Elwes v. Maw, supra. (o) Rex v. The Inhabitants of London Thorpe, 6 T. R. 379. [But see Phillipson v. Mullanphy, 1 Missou. 620.] (p) Am. & F. on Fixtures, 277 ; [Wes- ton v. Weston, 102 Mass. 514.] (q) Colegrave v. Dias Santos, 1 B. & C. 77. (r) Ward's case, 4 Leon. 241. (s) Rex v. The Inhabitants of Otley, 1 B. & Aid. 161. [So a saw-mill built on the land of another by permission. Rus- sell v. Richards, 1 Fairf. 429. So a pack- ing press and elevator in a mill. Gray v. Holdship, 17 Serg. & R. 415.] (t) 4 Burn's' Eccl. Law, 7th ed. 301. See Winn v. Ingilby, 5 B. & Aid. 625. (t 1 ) [Whiting v. Brastow, 4 Pick. 310.] (u) Naylor v. Collinge, 1 Taunt. 19. (x) Beck v. Rebow, 1 P. Wms. 94. (y) Fitzherbert v. Shaw, 1 H. BI. 258 ; but see Elwes v. Maw, 3 East, 38. (z) Am. & F. on Fixtures, 278, note. (a) Grymes v. Boweren, 6 Bing. 437. (6) Fitzherbert o. Shaw, 1 H. Bl. 258 ; but see Elwes v. Maw, 3 East, 55. (c) Am. & F. on Fixtures, 278 ; see Winn v. Ingilby, 5 B. & Aid. 625. (d) Fitzherbert v. Shaw, supra; but see Elwes v. Maw, 3 East, 55. 500 SUBJECT-MATTER OF CONTRACTS. Shelves, (e) Sinks, (e) Slabs of marble. (/) Stable on rollers, (g) Stoves. (A) Tapestry. (;') Tubs, (k) Turret-clocks. (I) Vessels, &c. on brickwork, (m) Wainscot fixed by screws, (n) Water-tubs, (o) Windmill on posts, (p) 3d. Trade Fixtures decided or said to be removable. Accessory buildings ; that is, accessory to a removable utensil, (q) [Bark-mill and stone for grinding bark in a tannery.] (q 1 ) Brewing vessels and pipes, (r) Cider-mills, (r) Cisterns, (s) Closets, (s) Colliery machines. (() Coppers. ( u ) Counters, (x) Cranes, (x) Desks, (x) Drawers, (x) Dutch barns, (y) Engines. (2) Fire-engines. (2) Fruit-trees planted by nursery-men. (a) Furnaces. (6) Gas-pipes, (c) (e) Am. & F. on Fixtures, 278, note. (/) Am. & F. on Fixtures, 277, note. (g) Fitzherbert v. Shaw, supra. (h) Bex v. The Inhabitants of St. Duns- tan, 4 B. & C. 686 ; [Gray v. Holdship, 17 Serg. & R. 415, per Smith J. ; Williams v. Bailey, 3 Dana, 152 ; Green v. Maiden, 10 Pick. 504. So a fire-frame fixed in a common fireplace, with bricks laid in be- tween the sides of the fire-frame and the jambs of the fireplace, may be removed during the term. Gameld v. Hapgood, 17 Pick. 192.] (1) Harvey v. Harvey, Str. 1141. (k) Colegrave v. Dias Santos, supra. (I) Am. & F. on Fixtures, 278, note. (m) Horn v. Baker, 9 East, 215. (n) Lawton u. Lawton, 3 Atk. 12 ; EI- wcs v. Maw, 3 East, 38 ; Roll. R. 216 ; see Am. & F. on Fixtures, 79, note. (0) Colegrave v. Dias Santos, supra. (p) Rex v. The Inhabitants of London Thorpe, 6 T. R. 379. [So, a house or shop built on the land of another, with his consent. Wells u. Bannister, 4 Mass. 514 ; Doty v. Gorham, 5 Pick. 487 ; Al- drich v. Latham, 6 N. H. 555 ; Harris u. Gillingham, 6 N. H. 11 ; Ashmun v. Wil- liams, 8 Pick. 402 ; Taylor v. Townsend, 8 Mass. 411 ; Washburn v. Sproat, 16 Mass. 449 ; Osgood v. Howard, 6 Greenl. 452. So, a wooden dwelling-house, with a cellar of stone or brick, and a brick chimney erected by an individual for the business of a dairyman, and the residence of those engaged in the business, and in part improved for carrying on the trade of a carpenter. Van Ness v. Packard, 2 Peters (U. S.), 137. See Stillman v. Ha- mar, 7 How. (Miss.) 421 ; Terry v. Robins, 5 Sm. & M. 291 ; Pcmberton v. King, 2 Dev. 376. A building erected by an indi- vidual on land of the government, he hav- ing no right in the soil, is personal prop- erty, as between individuals. Marcy v. Darling, 8 Pick. 283. See Woodruff v. Halsey, 8 Pick. 333.] (q) Elwes v. Maw, 3 East, 38 ; 3 Y. & J. 333; Amos, 37, 42, 114. (q 1 ) [Heermance v. Vernoy, 6 John. 5.] (r) Lawton v. Lawton, 3 Atk. 12. (s) Am. & F. on Fixtures, 276, a. (a) ; [Wall v. Hinds, 4 Gray, 256.] (() Lawton v. Lawton, Elmes v. Maw, supra. («) Poole's case, 1 Salk. 368 ; Lawton v. Lawton, 3 Atk. 12 ; Amos, 276, u. (a). (x) Am. & F. on Fixtures, 276, u. (a). (y) Dean v. Allalley, 3 Esp. 1 1 ; but see Elwes v. Maw, 3 East, 47, 55 ; Amos, 32. (2) Dudley r.Warde, Amb. 113 ; Lawton v. Lawton, 3 Atk. 12 ; Amos, 276, n. (a). (a) Wardell v. Usher, 3 Scott N. R. 508. (6) Tear Book, 20 Hen. 7, 13; Am. & F. on Fixtures, 69 ; but see lb. 276. (c) Am. & F. on Fixtures, 276, n. (a). LANDLORD AND TENANT. 501 Glass fronts, (c) Iron safes, (c) [Kettles and boilers put up in a tannery with brick and mortar.] (c 1 ) Machinery let into caps or steps of tim- ber; (d) or fixed with screws to the floor, or to sockets of lead let into the stone-work of the building, (e) Partitions. (/) Plants and pipes of brewers, distillers, &c. (g) Presses. (A) Pumps, (i) Reservoirs, (i) Salt-pans, (k) Shelves. (I) Shrubs planted for sale, (m) Soap-works (fixtures in), (n) Steam-engines, (o) Stills, (p) Tram-plates fastened to sleepers, not let into the ground, but only resting there- on, (q) Trees planted for sale, (r) Varnish house, (s) Vats. (() There are also certain fixtures, as to which the right of re- moval is unsettled, although it has been the subject of discussion in determining some of the cases already referred to. Of these doubtful articles, the subjoined is a list : — Brick-kilns, (u) Frames in nursery-grounds, (x) Furnaces in smelting-houses and glass- houses, (y) Glasses in nursery-grounds, (2) Green-honses. (z) Hot-houses, (z) Lime-kilns, (a) Malting-floors, stoves, &c. (b) Pavements, (c) (c 1 ) [Huntv. Mullanphy, 1 Missou. 508. So potash kettles set in brick arches. Wetherbee v. Foster, 5 Vt. 136 ; Miller v. Plumb, 6 Cowen, 665.] (d) Davis v. Jones, 2 B. & Aid. 165. (e) Hellawell v. Eastwood, 6 Exch. 295 ; 20 L. J. Exch. 164 ; [or nailed to the floor. Cresson v. Stout, 17 John. 116 ; Tobias v. Frances, 3 Vt. 425 ; Swift v. Thompson, 9 Conn. 63 ; Gale v. Ward, 14 Mass. 352 ; Walker v. Sherman, 20 Wend. 636 ; Taff v . Warwick, 3 Blackf. 113 ; Hill v. Went- worth, 28 Vt. 428.] (/) Amos, 276, n. (a). (g) Lawton v. Lawton, 3 Atk. 12. (A) Am. & F. on Fixtures, 276, u. (a) ; [Gray v. Holdship, 17 Serg. & R. 415.] (i) Amos, 276, n. (a); 6 Bing. 437; 3 Y.& J. 333,334. (£) Lawton v. Salmon, 1 H. Bl. 259, in notis. (I) Am. & F. on Fixtures, 276, n. (a). (m) Penton v. Robart, 2 East, 88, 90 ; Lee v. Risdon, 7 Taunt. 191. (») Poole's case, 1 Salk. 368. (o) Lawton v. Lawton, 3 Atk. 12. [To be used by a lessee of land in the making of salt. Lemar v. Miles, 4 Watts, 330 ; Pemberton v. King, 2 Dev. 376.] (p) Horn v. Baker, 9 East, 215. [And the kettles, steam tubs, &c., set up in fur- naces in the usual manner for the business of distilling. Burke v. Baxter, 3 Missou. 307 ; Reynolds v. Shuter, 5 Cowen, 323.] (}) Duke of Beaufort v. Bates, 31 L. J. C. 481. (r) See Penton v. Robart, supra, and Empson v. Soden, 4 B. & Ad. 655. (s) Penton v. Robart, 2 East, 88. (() Poole's case, 1 Salk. 388; Davis v. Jones, 2 B. & Aid. 165. [So a heater used for supplying heat to tanner's bark in vats and leaches. Raymond v. White, 7 Cowen, 319.] (u) See Amos, 276. (x) lb. 66. (y) lb. 276. (z) See Amos, 66. (a) See Amos, 276; Thresher v. East London Waterworks Co. 2 B. & C. 608. (6) Amos, 276. (c) lb. 35. 502 SUBJECT-MATTER OF CONTRACTS. Sheds, (d) Verandas, (g) Store-houses, (e) Wind or water-mills, (h) Tables fixed or dormant. (/) Workshops, (h) 2d. Where, upon the creation of a tenancy, there has been any contract respecting the fixtures, the general rules already mentioned will of course be subject to the terms of such contract ; for it is a general principle that parties may, by entering into a contract, vary the position in which they would oth- erwise stand towards each other. Accordingly a tenant may, by agreement, wholly renounce the right to remove fixtures during the term. (J) And if a tenant covenants to keep in repair all erections built and " thereafter to be erected and built," and to surrender them in such repair at the end of the term, he cannot remove fixtures ; although, had it not been for the covenant, they would have been legally removable as trade fixtures. (k~) So, where the lessee covenanted to yield 'up in repair at the ex- piration of his term all erections and improvements ; it was held that the removal of the sashes and framework of a greenhouse, which was fixed to the walls merely by being laid thereon embed- ded in mortar, was a breach of this covenant. (7) So, where there was a similar covenant, it was held that the tenant could not re- move a veranda, (m) So, where the lease contained a covenant by the lessee to yield up to the lessor, in good repair, at the end of the term (amongst other things), all ivindows and improvement* which should be erected or made on the premises during the term ; and it appeared that the assignee of the lease had, during the term, removed an old shop-window, and put up in its stead a plate-glass shop-front, which was fixed to the premises by wedges only ; it was held that this was either a " window " or an " improvement " within the meaning of the covenant, and that therefore, it was not removable at the end of the term, (n) And where there was a covenant to leave, at the end of the term, a water-mill, " with all (d) Amos, 33, 37. (/) West v. Blakeway, 2 M. & G. 729 ; (e) lb. 276. 3 Scott N. R. 218. (/) lb. 67, 68, 156. (m) I'enry v. Brown, 2 Stark. 403. Sec, (g) Penry v. Brown, 2 Stark. 403. also, Thresher v. East London Waterworks (A) Amos, 276. Co. 2 B. & C. 608 ; Fitzherbert v. Shaw, (i) Dumergue v. Rumsey, 2 H. & C. 1 H. Bl. 258. 777. ( n ) Haslett v. Burt (in Cam. Scac.), 18 (h) Naylor v. Collinge, 1 Taunt. 19. C.B. 893, affirming Burt v. Haslett,Ib. 162. LANDLORD AND TENANT. 503 fixtures, fastenings, and improvements set up during the term, in good condition, reasonable use and wear excepted ; " this was held to include a pair of new millstones, although the custom of the country justified their removal, (o) But where the covenant was, at the expiration of the term to deliver up the demised premises, " together with all locks, keys, bars, bolts, marble and other chim- ney-pieces, footpieces, slabs, and other fixtures and articles in the nature of fixtures, which should at • any time during the said term be fixed or fastened to the said demised premises, or be thereto be- longing ; " and the premises were, during the term, and for the purpose of carrying on business therein, fitted up with certain fix- tures of the description called trade and tenant's fixtures : it was held, that the above covenant did not restrain the lessee from dis- posing of the fixtures in question. (jt>) So a tenant may, by the terms of his contract, extend the time for removing fixtures, or otherwise vary his position and privileges upon the subject, (q) And as there may be an express agreement with reference to the right to remove fixtures, so it may be inferred, from when the user and other circumstances, that, when the chattel move maybe was annexed, the parties agreed that the original owner lnferred - should be at liberty at the end of his tenancy to take it away. (V) But here we would remark, generally, that it is important to make the question of fixtures a matter of agreement. For they are considered so much an integral part of the realty, that if, upon an agreement for a lease of a house, no mention be made of the fix- tures in the house, it seems they would be regarded as thrown into the bargain, a compensation for their use being included in the rent, (s) And, on the other hand, if a tenant, at the close of his term, renew his lease, and acquire a fresh interest in the premises, he 'should take care to reserve his right to remove those fixtures which he wasentitled to sever under his old tenancy. For, by en- (o) Martyr v. Bradley, 9 Bing. 24. (r) Wood «. Hewett, 8 Q. B. 913 ; (p) Bishop v. Elliott (in Cam. Scac), [Curtis v. Riddle, 7 Allen, 185 ; Hinkley 11 Exch. 113. o. Baxter, 13 Allen, 139 ; Howard v. Fcs- (q) See Foley v. Addenbroke, 13 M. & senden, 14 Allen, 128; Oakham v. Dor- W. 174 ; Stansfield v. Mayor &c. of Ports- Chester Eire Ins. Co. 98 Mass. 57 ; Gibbs mouth, 4 C. B. N. S. 120. See, also, Rex v. Estey, 15 Gray, 587.] ». Topping, M'Cl. & Y. 544, as to the ef- (s) Colegrave v. Dias Santos, 2 B. & C. feet of a forfeiture upon covenants in a 76 ; Thresher v. East London Waterworks lease as to repairing, removing fixtures, &c. Co. 2 B. & C. 608. 504 SUBJECT-MATTER OF CONTRACTS. tering into such new engagement without previously detaching the fixtures, or without expressly reserving the right to remove them, the tenant may lose his property in them altogether, (t) Where there is an express demise of the fixtures as part of the Effect of de- ^ an ^> or where they are tacitly let therewith, there is mise of fix- conferred on the tenant merely the right to use them as tUre8 ' /• P 7 fixtures, he cannot sever them from the premises ; and if he do so, they will become mere goods, the absolute property of the landlord ; so that even the right to use them will at once cease, (u) 3. Of Fixtures as between Outgoing and Incoming Tenants. The right to remove fixtures, as between outgoing and incom- ing tenants, is in general governed by the same princi- General rule. pies which regulate that right as between landlord and tenant : and the greater part of the foregoing observations will therefore apply to questions on this subject, as between the former of these parties. In practice, however, there is usually an agreement between the What should outgoing and the incoming tenant, that the fixtures th/incom- sna U be ta ken at a valuation. And where this is the mg tenant, case, all those articles should be valued to the incoming tenant, which, under the general law of fixtures, are removable as between landlord and tenant ; including those which had been orig- inally purchased of the landlord by the outgoing tenant. But those articles which, as against the landlord, the outgoing tenant cannot legally take away, cannot be claimed by the latter to be in- serted in the appraisement ; nor is he entitled to an allowance for them, merely because he may have put them up at his own ex- pense. And, with respect to things which are generally removable by tenants, if any of these were affixed to the premises prior to the demise to the outgoing tenant, and were not purchased by him of the landlord ; or if the removal of them would contravene any proviso or agreement in the contract of demise, they should not be valued to the incoming tenant. Where an agreement respecting fixtures is about to be entered into between an outgoing and an incoming tenant, it is advisable that the landlord should be made a party thereto. For, other- wise, the latter may afterwards insist that, as the fixtures were it) Fitzherbert v. Shaw, 1 H. Bl. 258. (u) Tarrant v. Thompson, 5 B. & Aid. 826. LANDLORD AND TENANT. 505 not removed during the outgoing tenant's term, they fell in with the lease ; and that the incomer took them only as part LanQ ] 0T . d of the demised premises, and, consequently, is not en- should be titled to remove them, (a;) And so if, at the end of a to agree- term, there be no immediately incoming tenant, and the outgoer wishes to leave his fixtures to be valued to the next ten- ant, it is necessary that he should obtain the consent of his landlord to allow them to remain on the premises. For if the fixtures remain on the premises after the expiration of the term, without such con- sent, the tenant loses his property in them, (y) And a valuation or appraisement of fixtures cannot be received in evidence, unless it be stamped. (2) 6. Of Away-going Crops, Tillages, &c. It was a general rule of the common law that, when the interest of a tenant from year to year was determined by the _ , , - . J . J Emblements. happening of an uncertain event, over which he had no control, after crops or roots yielding a present annual profit had been sown or planted by him, and before they had come to ma- turity ; such tenant was entitled to emblements, that is, to the crops so sown, and to the produce of such roots, (a) But now, where the lease or tenancy of any farm or lands, held at rack rent, shall determine by the death, or cesser of the estate of a landlord enti- tled for his life, or for any other uncertain interest ; the tenant, in- stead of having a claim to emblements, is entitled to hold and oc- cupy until the expiration of the current year of his tenancy. (5) And this statute applies wherever, at the determination of the ten- ancy, there were on the land crops or roots, in respect of which the tenant might have claimed a right to emblements, (c) But the right to away-going crops — that is, the produce of crops sown during the last year of the tenancy, but E - htt0 which have not arrived at maturity at the expiration of away-going • to- c crops, &c. the tenancy — depends upon principles different trom (x) See ante, 494. Bing. 202. See 2 Bl. C. 123, 404 ; Shep. (y) Lyde v. Russell, 1 B. & Ad. 394. Touch. 244 ; [Whitmarsh a. Cutting, 10 (2) 33 & 34 Vict. c. 97, s. 38 ; and John. 361 ; Debow v. Titus, 5 Halst. Sched. tit. Appraisement. A transfer of 128; Chandler v. Thurston, 10 Pick. 209, fixtures must bear an ad valorem stamp as 210 ; 4 Kent, 109, 110 ; Davis 0. Brockle- a conveyance. Horsefall v. Hey, 2 Exch. bank, 9 N. H. 73 ; Ellis 0. Paige, 2 778 ; 17 L. J. Exch. 226. Pick. 7.] (a) See Graves v. Weld, 5«B. & Ad. (6) 14 & 15 Vict. c. 25, B . 1. 105 118 119; Kingsbury c. Collins, 4 (c) Haines v. Welch, L. Rep. 4 C. P. 91. 506 SUBJECT-MATTER OF CONTRACTS. those which governed the law of emblements. The right to emble- ments, strictly so called, obtained only in the case of tenants who had an uncertain estate and interest in land, and which was put an end to suddenly by death or act of law, between the sowing and the severance of the crops ; ($) whereas the claim to away-going crops may apply as well to persons who have certain, as to those who have uncertain interests in land ; and it may hold in the case of a tenancy for a term of years, as well as in that of a yearly ten- ancy, and whether such tenancy be determined by the landlord or the tenant, (e) Such right, however, must be created either by the custom or usage of the country or neighborhood, or by express contract between the parties ; and where there is neither any prevalent custom or usage, nor any contract, to confer the right to crops unsevered at the expiration or determination of a tenancy, the law vests them in the landlord as part of the land. (/) But it rarely happens that the tenant is not assisted either by cus- tom or express agreement. Wigglesworth v. Dallison ($r) is one of the leading cases as to this kind of custom. It was an action of trespass against a late tenant for cutting corn ; and the defendant justified under a custom in the parish, " that every tenant and farmer of any lands within the same parish, for any term of years which hath expired on the first day of May in any year, hath been used and accustomed, and of right ought to have, take, and enjoy, to his own use, and to reap, cut, and carry slwhj, when ripe and fit to be reaped and taken away, his away-going crops ; that is to say, all the corn growing upon the said lands which hath, before the expiration of such term, been sown by such tenants upon any part of such lands, not exceed- ing a reasonable quantity thereof in proportion to the residue of such lands, according to the course and usage of husbandry in the same parish, and which hath been left standing and growing upon such lands at the expiration of such term of years ; " and the court (d) Co. Litt. 55 b. M. & W. 358 ; Strickland u. Maxwell, 2 (e) Onslow v. , 16 Ves. 173. C. & M. 539. When the incoming tenant (/) See Caldecott v. Smythies, 7 C. & cannot sue for the value of the away-going P. 808 ; [Chandler v. Thurston, 10 Pick, crops; Boraston v. Green, 16 East, 71. 210 ; Stewart v. Doughty, 9 John. 108.] Action against outgoing tenant for im- As to the rights in or over the land, which properly cutting and removing crops ; Da- are conferred by the right to take away- vies v. Cannop, 1 Price, 53. going crops, see Griffiths o. Puleston, 13 (g) 1 Dougl. 201, 207, n. (8). LANDLORD AND TENANT. 507 decided that the custom was good, and constituted a defence. Lord Mansfield observed : " It is just, for he who sows ought to reap ; and it is for the benefit and encouragement of agriculture. It is indeed, against the general law concerning emblements, which are not allowed to tenants who know when their term is to cease ; be- cause it is held to be their fault or folly to have sown, when they knew their interest would expire before they could reap. But the custom of a particular place may rectify what otherwise would be imprudence or folly. The lease being by deed does not vary the case. The custom does not alter or contradict the agreement in the lease ; it only superadds a right which is consequential to the taking, as a heriot may be due by custom, although not mentioned in the grant or lease." (f? 1 ) And upon the same principle it has been held, that a custom that a tenant may leave his away-going crops in the barns, &c, of the farm, for a certain reasonable time after the expiration of his term and after he has quitted, for the purpose of threshing, &c, is good in law ; and that the terms of the tenancy, as to such occupation of the barns, so far continue, that the landlord may distrain the corn so left, for rent, even after six months from the end of the term. (A) So a claim to remuneration for tillage, — i. e. the cultivation of (g l ) [1 Cruise Dig. by Mr. Greenleaf, ejectment, obtained by the landlord against 254, 255, tit. 8, eh. 2, § 18, in notes ; Biggs a former tenant, and the record of the v. Brown, 2 Serg. & B. 14; Denio v. ejectment is not a justification of a trespass Bossier, 1 Penn. 224 ; Van Doren v. by the purchaser. Biggs v. Brown, 2 Serg. Everitt, 2 South. 460; Templeman v. &R. 14. The law of Pennsylvania author- Biddle, 1 Harring. 522 ; Van Ness v. Pack- izes the tenant to gather the away-going ard, 2 Peters (S. C), 138; Wilcox u. crop, that is, the grain sown in the autumn, Wood, 9 Wend. 349. By the custom of to be reaped the next harvest. Denio v. Pennsylvania, a tenant for a term cer- Bossier, 1 Penn. 224. But where a lease tain, is entitled to the away-going crop, is for one year, viz., from the 1st of April whether such right be recognized by con- to the 1st of April, a tenant is not en- tract or otherwise. And he may sup- titled to the crop of grain sown in the port trespass for it against the landlord, or spring, and cut after the term is out ; and his vendee, after the lease has expired, there is no difference in these respects be- Difredorffer v. Jones, cited in Stultz v. tween a lease upon a money rent and upon Dickey, 5 Binn. 285 ; Biggs v. Brown, 2 the shares. lb. See, also, Comfort v. Dun- Serg. & R. 14 ; Carson v. Blaney, 2 Bin- can, 1 Miles, 229; Willison v. Watkins, 3 ney, 487. Such is the case also in New Peters (S. C), 47.] Jersey. Van Doren v. Everitt, 2 South. (h) Bevan v. Delahay, 1 H. Bl. 5. See 460. And the right to the away-going Bac. Abr. tit. Customs (C.) ; Knight v. crop remains, notwithstanding a purchaser Bennett, 3 Bing, 364 ; Nuttall v. Staunton, under the landlord obtains possession by a 4 B. & C, 51, habere facias possessionem, on a judgment in 508 SUBJECT-MATTER OF CONTRACTS. arable land, the benefit of which cannot have been derived by the outgoing; tenant, and which will be received by his suc- Eighttocom- o a J pensationfor cessor, — may also be supported by custom as well as by agreement. Thus, in Dalby v. Hirst, (i) it was de- cided that a usage for the offgoing tenant of a farm in a particular district, to bestow work, labor, and expense in manuring, tilling, fallowing, and sowing his lands according to the course of husbandry, and for the landlord to pay him a reasonable compensation in lieu thereof, is a valid usage ; and the fact that the tenant holds the land under a written demise will not exclude the usage, provided such demise do not contain stipulations which are inconsistent with it. (A) So it would seem, that a tenant who is bound to cultivate his farm according; to the rules of good husbandry may, by or draining. ° . . „ , ... ,,-,., custom, on quitting the farm, charge his landlord with a portion of the expense incurred in draining the land according to good husbandry, though such draining were done without the land- lord's knowledge or consent. (J) So the right to carry away or be paid for straw and hay, the produce of the land, and which, at the expiration of the carry away tenancy, is on the land in the usual course of hus- ' "' bandry, is also in most cases governed by the custom or usage of the country. But it is said that if there be no usage or agreement to the contrary, the tenant is not prevented by the rules of good husbandry from carrying away hay or straw from the premises, (m) Where, however, there was an agreement, that the tenant should not sell any hay or straw grown upon the farm, without the license of the landlord, under a specified penalty ; it was held that such penalty was incurred by a sale of straw after the tenancy had ex- pired, (w) But the carrying away of manure and dung, the produce of the (i) 1 B. & B. 224. ing tenant may detain the hay until man- (Jc) Clarke v. Roystone, 13 M. & W. ure 'be brought on according to terms of 752; Hutton v. Warren, 1 M. & W. letting; Smith v. Chance, 2 B. & Aid. 753. 466, 476 ; Senior u. Armytage, 1 Holt, Action for the value of hay, &c, on val- 197. uation; Leeds v. Burrows, 12 East, 1; (I) Monsley v. Ludlam, 21 L. J. Q. B. Poulter v. Killingbeck, 1 B. & P. 397. 64. (n) Massey v. Goodall, 17 Q. P. 310; (m) Per Lawrence J. Gough v. Howard, 20 L. J. Q. B. 526. Peake Add. Ca. 197. When the incom- LANDLORD AND TENANT. 509 land, seems to be so decided a breach of the rules of good hus- bandly that, except by express contract, the tenant i , . , , , , „ , . or manure- never has the right to carry them away at the end ot his term ; and he is not often entitled by custom even to a compensa- tion for them (o) Where, however, by agreement, the tenant is to be paid for manure, &c, at a valuation, the property therein remains in him until the valuation, (p) the deed. Parsons o. Camp, 11 Conn. 525 ; Goodrich v. Jones, 2 Hill, 142 ; Mid- dlebrook v. Cowen, 15 Wend. 169; Kitt- redge v. Woods, 3 N. H. 503; Stone ». Proctor, 2 Chipman, 108. The rule would be the same, though the manure were laid up in heaps upon the land. Plumer v. Plumer, 30 N. H. 558, 568; Conner v. Coffin, 22 N. H. 538 ; Sawyer v. Twiss, 26 N. H. 345. See Staples «. Emery, 7 Greenl. 201. Or were under cover. Con- ner v. Coffin, supra. But this rule does not apply to manure made in a livery stable, or in any manner not connected with agri- culture, or in a course of husbandry. Daniels v. Pond, 21 Pick. 367 ; Needham v. Allison, 24 N. H. 355; Plumer v. (o) Woodf. by Harrison, 4th ed. 419, 499 ; Gough v. Howard, Peake Add. Ca. 197. [The outgoing tenant in agricul- ture is not entitled to the manure made on the farm during his tenancy; Plumer v. Plumer, 30 N. H. 558 ; Sawyer v. Twist, 26 N. H. 346 ; Needham v. Allison, 24 N. H. 358 ; Conner v. Coffin, 22 N. H. 541 ; Middlebrook v. Corwin, 15 Wend. 169; Goodrich v. Jones, 2 Hill, 142 ; Wetherbee v. Ellison, 19 Vt. 379; even though lying in heaps in the farmyard, and though it were made by his own cattle, and from his own fodder. Lassell u. Reed, 6 Greenl. 222. The court afterwards, in Staples v. Emery, 7 Greenl. 204, remarking on the case of Lassell v. Reed, 6 Greenl. 222, say, that they " do not mean to extend the principle of that decision beyond the pe- culiar facts." See Daniels v. Pond, 21 Pick. 372 ; Lewis v. Lyman, 22 Pick. 442. An outgoing tenant at will of a farm has no right, in the absence of any express stip- ulation, to remove the manure made on the farm in the ordinary course of husbandry, and consisting of the collections from the stable and barnyard, or of composts formed by the admixture of these, with other substances taken from the farm ; and if he sell such manure to be removed, and the vendee have notice of the title of the landlord, the sale vests no property in the vendee, and trespass will lie against him at the suit of the landlord, for taking the manure. Daniels v. Pond, 21 Pick. 367; Hill v. De Rochemont, 48 N. H. 87, 88 ; Perry v. Carr, 44 N. H. 118, 120; Sawyer v. Twiss, 26 N. H. 345 ; Corey v. Bishop, 48 N. H. 146, 148. Manure scattered about the barnyard, or spread upon the land, will pass by » conveyance of the land, unless there is a reservation of it in Plumer, 20 N. H. 569 ; Lassell v. Reed, 6 Greenl. 222 ; Parsons v. Camp, 11 Conn. 525 ; Southwick v. Ellison, 2 Ired. 326 ; Hill u. De Rochemont, 48 N. H. 87, 90 ; Corey v. Bishop, 48 N. H. 148 ; Perry v. Carr, 44 N. H. 120. And in Corey v. Bishop, 48 N. H. 146, it was decided that a tenant at will of buildings only, who oc- cupies part of a barn to keep his cattle and feed them from his own hay which he removes from his own farm for that pur- pose, will be entitled to the manure there made by his cattle, and may remove or sell the same either during the tenancy or after its expiration. And in the same case it was further held, that if the lessor, during the continuance, or after the ex- piration of such tenancy, conveys the prem- ises while the manure so made is upon them, to a third person, not reserving or excepting the manure, the purchaser, having knowledge of the circumstances, cannot hold the manure under his deed.] {p) Beatty v. Gibbon, 16 East, 116. 510 SUBJECT-MATTER OF CONTRACTS. All these customs may prevail, whether the tenancy were created Custom'con- by parol, or by specialty. But they cannot, as we have presscoa- 6 ^ already remarked, have any application to cases in tract; which the express terms of the tenancy are inconsistent with such customs ; or in which the parties have prescribed rules, — having relevance to the subject to which those usages apply, — of such a nature that they must be taken to have intended that the usages of the Gountry should not control or regulate the rights of either party at the end of the tenancy. And where a farm was taken for fourteen years, and the tenant was to pay a given sum for tillages, and for improvements done before he entered, and to receive the value of the tillages, &c, which he should leave on the farm according to a valuation to be made at his quitting ; and the tenant in the first year said he would leave, and the landlord said he might ; but no new bargain was made as to his tillages and im- provements ; it was held that he was not entitled to the value of the tillages, &c, which he left on so quitting, (jq) If, however, the lease contain no stipulations as to the terms of but not quitting, the offgoing tenant may be entitled to take termso/Lw- advantage of the custom of the country, even though the m S- terms of holding be inconsistent with such custom, (r) And, accordingly, where a tenant held on the terms, that the wheat land should be summer fallowed and well manured for the crops ; and, by the custom, a tenant who, at the wheat seedness next be- fore the expiration of his tenancy, had sown his land with wheat after a crop of turnips, was entitled to one half of the wheat so sown ; it was held that the custom should prevail, and that it gave the tenant a right to a moiety of the crop, (s) Landlord And if there be no incoming tenant, then the landlord compensate, ' s hound, by the custom of the country, to pay to the if there be no outgoing; tenant the expenses which, in the ordinarv incoming © d r tenant. course, an incoming tenant would have to pay. (t) 7. Of the Common Count for Use and Occupation. At common Debt for use and occupation lay at common law, and Iaw- was not defeated by proof of a demise, not under seal, (q) Whittaker v. Barker, 1 C. & M. (s) Holding v. Pigott, 7 Bing. 465, rec- 113; and see Thorpe v. Eyre, 1 A. & E. ognized in Muncey v. Dennis, 1 H. & N. 926. 216. (r) Muncey v. Dennis, 1 H. & N. 216, (t) Eaviell v. Gaskoin, 7 Exch. 273,280. 221. LANDLORD AND TENANT. 511 reserving a certain rent, (w) And so, before the statute 11 Geo. 2, c. 19, s. 14, it had been frequently held, that an action of as- sumpsit was maintainable for the occupation of land, notwithstand- ing the objection that rent sounded in the realty, and could not be the subject of a mere personal action : but still it was held that wherever there had been an actual lease, this action would not lie. (z) In order, therefore, to avoid this inconvenience, .it was by that statute enacted, that " it should be lawful for a landlord, stat. 11 Geo. where the agreement was not by deed, to recover a rea- 2 ' c ' 19 ' 9 ' 14 sonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendant, in an action on the case, for the use and occupation of what was so held or enjoyed ; and if, in evidence on the trial of such action, any parol demise, or any agreement (not being by deed), whereon a certain rent was reserved, should appear, the plaintiff in such action should not therefore be non- suited, but might make use thereof as an evidence of the quantum of the damages to be recovered." (a; 1 ) Unless, therefore, there be a demise under seal, the landlord may now, in all cases, sue on the common count, for the use and (u) Gibson v. Kirk, 1 Q. B. 850. other person. M'Gunnagle v. Thornton, \x) Gibson v. Kirk, 1 Q. B. 850, 855; 10 Serg. & R. 251. See, also, 2 Stark. Brett v. Read, 1 W. Jones, 329; S. C. Ev. (5th Am. ed.) 852 et seq. and notes; Cro. Car. 343. Emerson v. Thompson, 2 Pick. (2d ed.) (z 1 ) [Assumpsit for use and occupation 491, u. (1); Magill v. Hinsdale, 6 Conn, of land, by permission and assent of the 464 ; Buell v. Cook, 4 Conn. 238 ; Bradley plaintiff, on an express promise to pay a v. Davenport, 6 Conn. 1 ; Williams v. certain sum, or in general to pay to the Sherman, 7 Wend. 109; Irwell v. Schroep- plaintiffs satisfaction for such use, lies at pel, 4 Cowen, 566. A contract, expressed common law independently of this statute, or implied, is necessary to sustain assump- Eppes v. Cole, 4 Hen. & M. 171. It also sit for use and occupation ; and an occu- lies on an implied promise. Sutton v. pant may repel the presumption arising Mandeville, 1 Munf. 407 ; Gunn v. Scovil, from his possession of the land, by show- 4 Day, 299; Jacks v. Smith, 1 Bay, 315; ing that he claimed adversely. Boston o. Smith v. Sheriff, 1 Bay, 443; Hayes o. Binney, 11 Pick. 1 ; Featherstonhaugh v. Acre, Cam. & Nor. 19; Stockett v. Wat- Bradshaw, 1 Wend. 134; Smith v. Stew- kins, 2 Gill & J. 326. But see Codman v. art, 6 John, 46; O'Conner v. Tyves, 3 Jenkins, 14 Mass. 95, 97. See Henwood Rich. 276 ; Ward v. Ball, 1 Branch, 271 ; v. Cheeseman, 3 Serg. & R. 500. A de- Stoddert v. Newman, 7 Harr. & J. 252. fendantwho had accepted a parol lease of If a tenant at will or sufferance renounces a house for a year, and undertaken to the the title of his landlord, assumpsit cannot landlord to procure possession from a be maintained for the use and occupation former lessee, was held liable in this ac- subsequent to the renunciation. Boston v. tion, although he had refused to take pos- Binney, 11 Pick. 1.] session, alleging that he had rented for an- 512 SUBJECT-MATTER OF CONTRACTS. „„ , occupation of the premises, (y) And this action is When the L . i i count for use maintainable for the actual use and occupation even of tion is main- an incorporeal hereditament ; or for the enjoyment of a mere personal right, such as a right to fish. (z) But where there is a demise, the landlord will not be entitled to Where there sue the tenant for rent, on the count for use and occupa- is a demise. tion, unless an action for rent could be maintained on the demise itself, (a) And, by the common law, one of the consequences of this rule Effect of sur- was, that if the tenant were evicted, or the term were rei icUon"be- surrendered by operation of law, whilst a quarter's rent fore rent due. was current, an action for use and occupation could not be maintained, to recover a proportion of the rent from the preced- ing quarter-day to the time of such eviction or surrender. (6) But 33 & 34 v ky virtue of " The Apportionment Act, 1870," (c) such c. 35. an action may now be maintained, although not before the time when the entire rent would have been payable. Where there is a written agreement of demise, it must still, gen- Demise must, erally speaking, be produced and proved by the plaintiff in general, , . be produced, at the trial, in order to show the terms 01 the tenancy, (a) But it has been held that, although an action for the rent re- served by the demise may not be maintainable against the tenant, still, if he has actually occupied the premises, it is a question for the jury, whether he so occupied on an implied agreement to pay a reasonable compensation in respect of such occupation, (e) And it seems that this action will lie, even although there has been no demise. Thus, where the plaintiff was admitted customary (y) An agent who lets land for an un- the rent days, cannot maintain an action disclosed principal, may sue in his own for rent under the lease, or an action for name for use and occupation. See Fisher use and occupation of the premises, after v. Marsh, 6 B. & S. 411 ; Evans r. Evans, the last rent day prior to such termination 3 Ad. & E. 132. of the tenancy. Nicholson v. Munigle, 6 (2) Jones v. Reynolds, 4 A. & E. 805 ; Allen, 215 ; Fuller v. Swett, 6 Allen, 219, Bird v. Higginson, 2 A. & E. 696; Hoi- note; Shumway v. Colling, 6 Gray, 227.] ford u. Pritchard, 3 Exch. 793 ; 18 L. J. (c) 33 & 34 Vict. c. 35, ss. 2, 4. Exch. 315. \d) Brewer v. Palmer, 3 Esp. 213 ; ree- (a) See Hall v. Burgess, 5 B. & C. 332. ognized in Ramsbottom v. Tunbridge, 2 (6) Morrison v. Chadwick, 7 C. B. 266, M. & S. 434. "What is sufficient evidence 283. As to what amounts to an eviction, of the existence of such an agreement, so see Upton v. Townend, 17 C. B. 30, 64. as to render its production by the plaintiff [A landlord who, in pursuance of a power necessary, see Watson v. King, 3 C. B reserved to him in a written or verbal 608. lease, has terminated the tenancy between (c) Smith v. Eldridge, 15 C. B. 236. LANDLORD AND TENANT. 513 tenant of a cottage, after the death of his mother, and the de- fendant, — who had resided in it with the mother, wheretherei rent free, until her death, — had continued in possession isnotade- after that time, but had paid no rent; it was held that the plaintiff could maintain an action for use and occupation against him. (/) So a corporation may be sued in this form of action, in respeet of the actual occupation of premises, although there has been no contract made by them under seal. (#) But a person who has never been in actual possession of the premises, although the estate be in him, cannot maintain this ac- tion against an occupier, unless there has been a demise. (K) The common count for use and occupation is maintainable, al- though the defendant, to whom the premises were let, „ ,..,.,„ ' , , , Whatasuffi- aicl not himself occupy them, but let them to another cient occupa- person ; (J) or although they were occupied only by the servants of the defendant, (j) And where A. and B. entered into an agreement, to take premises of C. from a day certain at a yearly rent, and the evidence showed an entry on that day by A. only : it was held, in an action for use and occupation against A. and B., that the jury were warranted in finding that the entry by A. was an entry in respect of both himself and B. (K) But the occupation by one of two executors, of premises whereof the tes- tator was tenant, will not render both executors liable in this ac- tion ; (7) nor is a husband liable in this action for the use and oc- cupation of a house by his wife, dum sola ; (jn) nor, as it seems, will the fact of one of two joint tenants of a term, holding over after the expiration of the term, make both liable to be sued for the use and occupation of the premises, (n) The landlord of premises demised under a written agreement may recover against his tenant, in this form of action, Action will rent which accrues after the premises are burnt down, p 1 1 e e mi^ e s u f e t !. and no longer inhabited by the tenant, (o) And in like str °y ed - (/) Hellier u. Silcox, 19 L. J. Q. B. (j) Gertie v. Beaumont, 16 East, 33. 295. [k) Glen v. Dungey, 4 Exch. 61 ; 18 L. (g) Finley v. Bristol & Exeter Railway J. Exch. 359. Co. 7 Exch. 409; 21 L. J. Exch. 117; (Z) Nation v. Tozer, 1 Cr., M. & R. 172. Lowe v. London & North Western Rail- (m) Richardson v. Hall, 1 B. & B. 50. way Co. 18 Q. B. 632. (n) Tancred o. Christy, 12 M. & W. (A) Turner v. Cameron's C. S. C. Co. 316; and see S. C. 7 M. & W. 127. 5 Exch. 932. (o) Baker v. Holtzapffel, 4 Taunt. 45 ; (() Bull v. Sibbs, 8 T R. 327. [S. C. 18 Ves. 115; Davis u. Alden, vol. i. 33 514 SUBJECT-MATTER OF CONTRACTS. manner, a tenant from year to year continues liable to be sued for the use and occupation of premises which have been destroyed by fire, until his tenancy is determined by notice to quit. (_p) Nor has the tenant, in such a case, any equity to compel the landlord to apply money received from an insurance office, in rebuilding the premises ; or to restrain the action for rent until they are re- built, (q) But if, by agreement of the parties, the rent is to depend on actual occupation, and the liability thereto is to accrue de die in diem, the tenant will be liable for rent only up to the time at -nshich the premises were burnt, (r) So it is no answer to an action for the use and occupation of a or unfit for house or land, that such house or land was not reason- habitation, gjjjy £ t an( j p r0 p er f or tne purpose for which it was let. 0) It would appear from some cases, that the action for use and oc- , , cupation may be maintained, although the defendant has Entry by les- r J • i i see iipces- never entered upon, or actually occupied the premi- ses ; (t) whilst, on the other hand, it has been held that sary. 2 Gray, 313 ; Hallett v. Wylie, 3 John. 44; Fowler v. Bott, 6 Mass. 63; Leavitt v. Fletcher, 10 Allen, 119, 121 ; Foster c. Peyster, 9 Cush. 247 ; Kramer v. Cook, 7 Gray, 550 ; Libbey v. Tolford, 48 Maine, 317; Kiedelet v. Wales, 16 Missou. 214; Pollard v. Shaaffer, 1 Dall. 210 ; Beach v. Gray, 2 Denio, 84. In an action of assumpsit, upon an express contract to pay rent for a house, the defence was, that a "large multitude of armed men, .with high and irresistible force, seized upon and destroyed the demised premises, and evicted the lessee." Held, that, as the de- struction of the demised premises by fire will not excuse the tenant from payment of the rent, on an express covenant, so here, although it is a verbal and not a written contract, on which the claim is founded, yet it is such a lease as the law recognizes ; and the plaintiff was entitled to recover on the count in his declaration, which charges an express contract to pay rent. Wagner v. White, 4 Harr. & J. 564. If a landlord take possession of the ruins of his premises destroyed by fire, for the purpose of rebuilding, without the consent of his tenant, it is an eviction ; if, with his consent, it is a rescission of the lease; and in either case the rent is suspended. Ma- gaw v. Lambert, 3 Barr, 444.] (p) Izon v. Gorton, 7 Scott, 537. (q) Leeds v. Cheetham, 1 Sim. 146 ; Lofft v. Dennis, 1 E. & E. 474 ; [Holtzapffel v. Baker, 18 Ves. 115; Davis v. Alden, 2 Gray, 313.] (r) Packer v. Gibbins, 1 Q. B. 421, 423. (s) Hart u. Windsor, 12 M. & W. 68; Sutton v. Temple, lb. 52 ; [Libbey v. Tol- ford, 48 Maine, 317. In the lease of a house or store there is no implied warranty that the building is safe, well built, or fit for any particular use. Dutton v. Gerrish, 9 Cush. 89 ; Libbey v. Tolford, 48 Maine, 316. In the lease of a house there is no implied warranty that it is, or shall remain, reasonably fit for habitation. Foster v. Peyster, 9 Cush. 242, 247 ; Cleves v. Wil- loughby, 7 Hill, 83 ; Welles v. Castles, 3 Gray, 323, 326.] Whether it would be an answer in the case of an action for the rent of furnished apartments, quare, Sut- ton v. Temple, 12 M. & W. 52 ; and see Smith v. Marrable, 11 M. & W. 5 ; [Dutton v. Gerrish, 9 Cush. 94.] (t) Izon v. Gorton, 7 Scott, 537, 547 ; LANDLOKD AND TENANT. 515 an actual entry on the premises by the lessee is necessary, in order to entitle the lessor to sue in this form of action, (u) And this would seem to be the better opinion, (x) But this action may be maintained, without attornment or ac- knowledgment of title, — upon the statute 4 & 5 Anne, But not at- c. 16, ss. 9, 10, — by the -trustees of one of whose title tornment the tenant had notice before he paid his rent to the original land- lord, although the tenant had no notice of the legal estate being in the plaintiff on the record. («/) So, where a lease for a term cer- tain, granted by writing not under seal, contained an undertaking on behalf of the lessor and his assigns, for quiet enjoyment; it was held that his assignee might sue for use and occupation, (z) And the grantee of an annuity charged on the land, or a mortgagee, where such land or the mortgaged premises are in the occupation of a tenant under a demise anterior to the grant or mortgage, may, after notice to the tenant to pay his rent to him, recover rent from the latter, in an action for use and occupation, (a) It is said, however, that this action is founded upon contract ; and that unless there he a contract, express or implied, be- Action will tween the parties, it cannot be maintained. (J) When, not lie therefore, there is no evidence of a demise to the de- meretres- fendant, there must be some evidence that he held by permission of the plaintiff, and on the terms, either express or im- plied, that he was to pay the plaintiff for the occupation, (c) And accordingly it would seem, that where the person who is in posses- sion of the land is a mere trespasser, the plaintiff cannot waive the trespass, and bring an action for use and occupation. (cT) Smith v. Twoart, 2 M. & G. 841 ; 3 Scott 446 ; Sloper v. Saunders, 29 L. J. Exch. N. R. 172 ; Pinero v. Judson, 6 Bing. 206 ; 275 ; per Ashhurst J. Birch v. Wright, 1 per Tindal C. J. Atkinson o. Humphrey, T. R. 378, 387 ; per Bayley J. Hall u. 2 C. B. 654, 657. Burgess, 5 B. & C. 332, 333 ; [Boston (u) PerPatteson J. Woolley v. Watling, u. Binney, 11 Pick. 1 ; Vandenheuyel v. 7 C. &P. 610; Edges. Strafford, 1 C. & J. Storrs, 3 Conn. 203; Pott v. Lesher, 1 391 ; and see How v. Kennett, 3 A. & E. Yeates, 576; Featherstonhaugh u. Brad- 659. shaw, 1 Wend. 134; Smith v. Stewart, 6 (x) Lowe v. Ross, 5 Exch. 553 ; and see John. 46 ; Bancroft v . Wardwell, 13 John. Towne v. D'Heinrich, 13 C. B. 892. 489 ; Stoddert v. Newman, 7 Harr. & J. (y) Lumley v. Hodgson, 16 East, 99; 251.] Eennie v. Robinson, 1 Bing. 147. (c) Per Hill J. Levi v. Lewis, 9 C. B. (2) Standen v. Chrismas, 10 Q. B. 135. N. S. 872, 879; and see Salmon v. Mat- (a) Birch v. Wright, 1 T. R. 378 ; Moss thews, 8 M. & W. 827, 833. v. Gallimore, Dougl. 279. (dj Tew u. Jones, 13 M. & W. 12; and (6) See Churchward v. Eord, 4 H. & N. see Turner u. Cameron's C. S. C. Co. 5 516 SUBJECT-MATTER OF CONTRACTS. But where a tenant holds over after the expiration or determina- Againstten- tion of his term, the landlord may waive his right to ant holding . ' J & over eject, and sue tor use and occupation, (e) Where there is a contract, the plaintiff can recover only accord- Plaintiff can m g to the contract. And, therefore, where there was accordin°g n to an agreement to let and take premises "from the 25th the contract. March, 1844, for a twelvemonth certain, and thence for the continuance of the lessor's interest therein, so long as it should continue, until determined by six months' notice from the tenant, expiring at any quarter of a year, at the rent of 120?. a year: " it was held that the rent was payable yearly, and that an action for use and occupation would not lie, to recover rent for a quarter end- ing 25th December, 1845. (/) And it is said, that the action for use and occupation will not lie where the title is in dispute. ( ' r •> dor haspos- February, — the same to be allowed to stand on A.'s session. premises until the 1st of May; and B. stipulated that the hay should not be cut until paid for ; it was held that this was a contract for an immediate, not a future sale ; that the property in the hay passed by it, immediately, to the vendee ; and that the same having been subsequently destroyed by fire, the loss fell upon him. (r) It is said, indeed, that if two are agreed upon the price, and the buyer departs without tendering the money, and comes the next day and tenders it, the other may refuse ; for he is not bound to wait unless a day of payment was agreed between them, (s) But this principle does not apply, except where the parties agree to make time of the essence of the contract. And therefore, where the defendant sold some stacks of oats to the plaintiff, under an agreement by which the plaintiff was to have liberty to leave the stacks on the defendant's land for four months, and was to pay for them at the end of twelve weeks from the making of the agree- ment ; and the defendant, at the end of the twelve weeks, called on the plaintiff to pay, which he did not do, but afterwards tendered the price ; it was held that the defendant having subsequently sold the stacks, the plaintiff was entitled to recover in trover, on a plea of " not possessed." (£) (q) Per Cur. Dy. 30 a. taken to another place by the purchaser, (r) Tarling v. Baxter, 6 B. & C. 360; and to be paid for according to its meas- and see Alexander v. Gardner, 1 Bing. urement at that place, and in its passage N. C. 671 ; 1 Scott, 630; [Wilde J. in thither, a depreciation and loss, commonly Thompson v. Gould, 20 Pick. 134, 139 ; incident to such passage, occurred, without Farnum v. Perry, 4 Law Eep. (Boston) any fault in the purchaser, he was held not 276 ; Pleasants v. Pendleton, 6 Band. 473 ; to be chargeable with thatloss. Cushman "Willis v. Willis, 6 Dana, 48 ; Wing v. v. Holyoke, 34 Maine, 289.] Clark, 24 Maine, 366. In a case where (s) Bro. Abr. Contract, pi. 26 ; 5 Vin. the title to property sold had passed to the Abr. 515. purchaser, but the property was to be (t) Martindale v. Smith, 1 Q. B. 389. 522 SUBJECT-MATTER OF CONTRACTS. 3. Even, however, in the case of a sale of a specific chattel, if When the the contract show that there is no intention to pass the notaitered property, until something be done by the seller, either by the sale. [ n ovc \ er to prepare the goods for delivery, or for the purpose of ascertaining the price, the sale is not perfected, and the property does not pass until that thing be done, (et) (u) Logan v. LeMesurier, P. C. 11 Jur. 1091, 1094; 6 Moo. B. C. 116 ; and see Turley v. Bates, 2 H. & C. 200 ; Young o. Matthews, L. B. 2 C. P. 127 ; [Foster v. Bopes, 109 Mass. ; Walrath v. Ingles, 64 Barb. 265. But a contract for the sale of specific goods, or of goods identi- fied and appropriated to the purchaser with his consent, will, if such appears to he the intent of the parties, pass to the purchaser the title to the property without delivery, although something may remain to be done hy the buyer to put the property into the condition in which it is finally to be delivered to the purchaser; Marble c. Moore, 102 Mass. 443 ; Bemis v. Morrill, 38 Vt. 153 ; Beecher v. Mayall, 19 Gray, 376 (a case of resale) ; Young v. Matthews, L. B. 2 C. P. 127 ; Martineau v. Bitching, L. B. 7 Q. B. 449, 450 ; Mer- chants' National Bank v. Bangs, 102 Mass. o Bussell v. Carrington, 42 N. Y. 118; Filkins v. Whyland, 24 N. Y. 341 ; ante, 518, note (A). Whether the title to the property passes or not, depends upon the intention of the parties to the con- tract of sale. Turley c. Bates, 2 H. & C. 200 ; Martineau v. Bitching, L. B. 7 Q. B. 449, 450, 459 ; Fitch v. Burk, 38 Vt. 689 ; Young v. Matthews, L. B. 2 C. B. 127; Biddle v. Varnum, 20 Pick. 283, 284 ; Fuller v. Bean, 34 N. H. 300-304 ; Stone v. Peacock, 35 Maine, 388 ; Black- burn Sales, 150, 151 ; Bellows u. Wells, 35 Vt. 599 ; Sumner v. Hamlet, 12 Pick. 76, 82 ; Morse v. Sherman, 106 Mass. 433, and cases there cited. This intent is to be decided by the jury. McClung v. Kelley, 21 Iowa, 508 ; De Kidder v. McKnight, 13 John. 294 ; Biddle v. Varnum, 20 Pick. 283 ; George v. Stubbs, 26 Maine, 250. But where hy the intent of the parties 295. So, although something remains to be anything remains to be done before the sale done for the purpose of testing the prop- is to be considered as complete, whether to erty, or to fix the amount to he paid, by be done by the vendee or the vendor, or weighing, measuring, or the like. Turley by a third person, as between the parties v. Bates, 2 H. & C. 200 ; Martineau a. themselves, the right of property does not Bitching, L.B. 7 Q. B. 4.36, 449-451,454, pass; Prescott «. Locke, 51 N. H. 94; 455, 456, 459 ; Alexander v. Gardner, 1 Foster v. Bopes, 108 Mass. ; although the Bing. N. C. 671 ; Castle v. Playford, L. E. 7 property itself is placed in the possession Exch. 98 ; Fitch v. Burk, 38 Vt. 683, 689 ; of the vendee. Ward v. Shaw, 7 Wend. Jenner v. Smith, Q. K. 4 C. P. 270, 276 ; Aldridgev. Johnson, 7 El. & Bl. 885 ; Bid- dle v. Varnum, 20 Pick. 283, 284 ; Chap- man J. in Drury v. Williams, 5 Allen, 3, 4 ; 404; Parker D.Mitchell, 5 N. H. 165; Fuller v. Bean, 34 N. H. 290 ; Stone v. Peacock, 35 Maine, 385 ; Messer v. Wood- man, 22 N. H. 181, 182 ; Ockington a. Wild J. in Macombers v. Parker, 13 Pick. Bichey, 41 N. H. 275, 281 ; Field v. Moore, 182, 183; Farnum v. Perry, 4 Law Bcp. (Boston) 276 ; Cushman v. Holyoke, 34 Maine, 289 ; Williams r. Adams, 3 Sneed (Tenn.),359; Ford u. Chambers, 28 Cal. 13; Cummins v. Griggs, 2 D avail, 87; Burr v. Williams, 23 Ark. 244 ; Bellows J. in Ockington v. Bichey, 41 N. H. 279, 280 ; Hyde v. Lathrop, 3 Tr. App. (N. Y.) 320 ; Terry ». Wheeler, 25 N. Y. 525 ; Hill & Denio, 418, 421. As to the transfer of title by sale, see, also, McDonald v. Hew- ett, 15 John. 349; Barrett v. Goddard, 3 Mason, 112 ; Bapclye v. Mackie, 6 Cowen, 250; Bussell v. Nicholl, 3 Wend. 112; Outwater v. Dodge, 7 Cowen, S5 ; Downes a. Thompson, 2 Hill, 137; Damon v. Osborn, I Pick. 476 ; Macornber v. Parker, 13 Pick. 175; Sumner v. Hawlet, 12 Pick. SALE OF GOODS. 523 Thus, under a contract for the sale of timber, the buyer selected and marked the parts of the trees which he wished to pur- chase ; and the seller engaged to sever the tops and sidings and to convey the trunks to C; and a portion of the timber was afterwards delivered to the buyer, and the whole paid for ; but, before the tops and sidings of the residue were severed, the seller became bankrupt ; and it was held, that the property in such residue was not, by the contract, in the buyer, but passed to the assignees under the bank- ruptcy, (a;) So, where several bales of skins, stated in the contract to con- tain five dozen in each bale, were sold at a certain sum per dozen ; and it was the duty of the seller to count over the skins to see how many each bale actually contained ; but before this was done, the whole were consumed by fire ; Lord Ellenborough and Sir James Mansfield held, that an action could not be maintained against the purchaser for the value of the skins, and that the loss must fall entirely upon the seller. (#) So where it appeared that, on the sale of oil, it was the custom for the casks to be searched by the seller's cooper before delivery, and for a broker to ascertain, on behalf of both parties, the foot dirt and water in each (for which allowance was to be made), and then for the casks to be filled up by the seller's cooper at his ex- pense : it was held that, till such acts were done and such delivery was made, the contract was not complete so as to pass the prop- erty ; and that the vendor might, on the bankruptcy of the buyer, countermand the sale, (z) And the same rule would hold in cases like the following : e. g. in the case of a sale of ten out of twenty tons of flax, the same being in mats of unequal size and containing unequal quantities ; (a) or of so many tons of a larger quantity of oil ; (5) or of the sale of a stack of bark at a certain price per ton. (e) 82, 83 ; Pothier Cont. of Sale, by Cush- (y) Zagury ■ o <-> » dispuiuiuii. ponendi over the goods, — e. g. by making them deliver- able to his order or assigns ; (¥) or if from any other circumstance it appear, that it was the intention of the parties to prevent the prop- erty passing, and to enable the consignor to retain a control over the goods. (T) And if the master of the ship sign a bill of lading in the above form, the mere fact of his not having had authority so to do, will not have the effect of vesting the property in the goods in the consignee, (m) 6. It is also a general rule, that a grant of goods which are not Grant of in existence, or which do not, either actually or poten- fxistenc* 1 " tially, belong to the grantor at the time of executing void at law. ^] ie tieed, is void at law, unless he ratify the grant by some act done by him with that view, after he has acquired the property therein, (n) Thus, in Robinson v. Macdonnell, (o) there was an assignment by deed of the freight, earnings, and profits of a ship; and — trover having been brought for oil, the produce of whales taken during the voyage — Lord Ellenborough, in deliver- ing the judgment of the court, said : " There is another objection to the claim for oil under the deed, whicli is this : that the oil had no existence, actual or potential, at the time the deed was made ; and, to make a grant or assignment valid, the thing which is the (k) Turner v. Trustees of Liverpool which do not belong to the grantor at the Docks, 6 Exch. 543, 568; EUershaw v. time of the grant, is void. Head v. Good- Magniac, lb. 570; Van Casteel v. Booker, win, 37 Maine, 182 ; Jones v. Richardson, 2 Exch. 691 ; Brown r. Hare, 3 H. & N. 10 Met. 481 ; Henshaw v. Bank of Bellows 484 ; S. C. (in Cam. Scac.) 4 lb. 822; and Falls, 10 Gray, 571, 572; Barnard v. see Jenkyns v. Brown, 14 Q. B. 496. Eaton, 2 Cush. 294 ; Rice v. Stone, 1 (I) Moakes v. Nicholson, 19 C. B. N. Allen, 566, 569 ; Moody v. Wright, 13 S. 290; Falk v. Fletcher, 18 lb. 403; Met. 17; Codman v. Freeman, 3 Cush. Joyce v. Swann, 17 lb. 84 ; and see Shep- 109. See Pothier Contr. Sale, by Cush- herd v. Harrison, L. R. 4 Q. B. 196, 493 ; ing, §§ 5, 6, 7, pp. 4, 5 ; ante, 517, note (g l ). Brandt v. Bowlby, 2 B. & Ad. 932. If the grantor subsequently acquire title (m) Turner v. Trustees of Liverpool to such goods, it requires some new act on Docks, 6 Exch. 543. his part evincing the intent of carrying (n) Grantham u. Hawley, Hob. 132; the sale into effect, to transfer the title Lunn v. Thornton, 1 C. B. 379 ; Gale v. to such grantee. Head u. Goodwin, 37 Burnell,7 Q.B. 850; Hopew. Hayley, 5 El. Maine, 182. But see Frazer v. Hilliard, 2 &B1. 830; Congreve v. Evetts, 10 Exch. Strobh. 309.] 298 ; Baker v. Gray, 17 C. B. 462 ; Belding (o) 5 M. & S. 228. v. Read, 3 H. & C. 955. [A grant of goods SALE OF GOODS. 529 subject of it must have an existence, actual or potential, at the time of such grant or assignment ; and, upon this principle, an assign- ment of sheep, which a lessee was to deliver to the assignor at the end of the lessee's term, or of the wool which should grow upon such sheep as the assignor should thereafter buy, has been held in- operative, because the assignor had not, at the time of the assign- ment, that which he was professing to assign, either actually or potentially, but in possibility only." (o 1 ) But there may be a grant of a power to seize after-acquired goods, which, when executed, will pass the property therein, (j>~) And if the grantor have the property in the goods potentially, that is sufficient. So that, where tenant for years of a farm, as- signed to his landlord " all his tenant right and interest yet to come and unexpired in and to the said farm and premises ; " it was held that, under this assignment, the tenant's interest in crops, grown on the farm in future years of the term, passed to the landlord. (c[) And although a contract which purports to transfer property which is not in existence, does not, in equity, operate as Effect of, in an immediate alienation ; still, if a vendor or mortgagor e< i ult - v - agrees to sell or mortgage specific property, of which he is not pos- sessed at the time, and he receives the consideration for the con- tract, and afterwards becomes possessed of property answering the description in the contract, a court of equity will, in this case, com- pel him to perform his contract ; and the contract will, in equity, transfer the beneficial interest to the mortgagee or purchaser, im- mediately on the property being acquired, (r) (o 1 ) [Low v. Ives, 108 Mass.; Pothier case the future earnings constitute a mere Contr. by dishing, 6; and see Wood & possibility coupled with no interest. Mul- Foster's case, 1 Leon. 42 ; Grantham v. hall v. Qninn, 1 Gray, 105.] Hawley, Hob. 132 ; Petch v. Tutin, 15 M. (p) See Congreve v. Evetts, 10 Exch. & W. 110. Wages not already earned, 298; Hope o. Hayley, 5 E. & B. 830;. but to be earned, under an existing con- Chidell e. Galsworthy, 6 C. B. N. S. tract, are capable of being assigned, al- 471 ; Holroyd v. Marshall, 30 L. J. C. though the workman works by the piece, 385 ; [S. C. 10 H. L. Cas. 191.] and his wages per month vary. Hartleys. (q) Petch v. Tutin, 15 M. & W. 110; Tapley, 2 Gray, 565 ; Gardner v. Hoeg, 18 and see Carr c. Allatt, 27 L. J. Exch. Pick. 168; Weed v. Jewett, 2 Met. 608; 385. Emery v. Lawrence, 8 Cush. 151 ; Brackett (»■) Per Lord Westbury C. Holroyd v. v. Blake, 7 Met. 335 ; Thayer v. Kelley, 28 Marshall, 33 L. J. C. 193, 196 ; S. C. 1 Vt. 19. But it is otherwise where there is H. L. Cas. 191; and see Reeve v. Whit- no subsisting engagement under which the more, 32 lb. 497 ; 33 lb. 63 ; [4 De G., J. future wages are to be earned, and it de- & S. (Am. ed.) 1, and eases in note (1); pends upon a future engagement whether Lord Campbell, in Holroyd a. Marshall, anything ever will become due. In this 2 De G., F. &J. 596.] vol. i, 34 530 SUBJECT-MATTER OF CONTRACTS. Contract to make a chat- tel does not, per se, pass the property. 7. A contract for the making of a chattel does not, of itself, vest the property in the chattel, when completed, in the per- son who gave the order, (s) Tims, in Mucklow v. Mangles, (t) which was an ac- tion of trover for a barge ; it was held, that although the party who ordered it to be built had paid money on account equal to the price, and his name had been painted thereon by the builder, the vendee acquired no property in the barge, it not having been delivered to the vendee. (t v ) So, in Atkinson v. Bell, (?<.) it appeared that A., having a patent for certain spinning machinery, received an order from B. to have some spinning frames made for him. A. employed C. to make the machines for B., and informed the latter that he had so done. After the machines had been completed, A. ordered them to be al- tered. They were afterwards finished according to this new order, and packed up in boxes for B. ; and C. informed B. that they were (s) Per Tindal C. J. Wilkins v. Brom- head, 6 M. & G. 963, 972. [See Moody v. Brown, 34 Maine, 109 ; Gamage v. Alex- ander, 14 Texas, 414 ; Mixer v. Howarth, 21 Pick. 205; Andrews v. Durant, 1 Ker- nan (N. Y.), 35; Johnson v. Hunt, 11 Wend. 139 ; Bennett a. Piatt, 9 Pick. 558 ; Veazie u. Holmes, 40 Maine, 69 ; Wood v. Bell, 5 El. & Bl. 772 ; Blasdellv. Souther, 6 Gray, 152 ; Bigelow J. in Wil- liams v. Jackman, 16 Gray, 517 ; Story Sales (4th ed.), §§ 233, 315. But in Mid- dlesex Co. v. Osgood, 4 Gray, 447 ; which was a case of a contract to sell chattels, to be made at a future time, it was held, that proof that all the " manure waste " made, during the time stipulated, in the manu- facturing establishment of the plaintiffs, which they had agreed to sell to the de- fendant by the following memorandum, viz. : " Sold to Atis Osgood all the manure waste which may be made for one year from the first of May next, for $325, pay- able in quarterly instalments at the end of each quarter," was kept in a certain barn of the plaintiffs, and that the purchaser had never been refused permission to take it away, is sufficient to support an action brought after the expiration of the year, for goods sold, to recover the price thereof, without other proof of delivery or offer to deliver. It did not appear in this case, that the defendant was notified of the plaintiffs readiness to deliver the waste, or of the place of its deposit; nor was there any evidence that the plaintiffs were in fact, ready to deliver it, except the state- ment of a witness who said it "was kept in a certain barn, to which he had never been." See Hart v. Tyler, 15 Pick. 171 ; Merrill u. Parker, 24 Maine, 89. The judgment of the court for the plaintiffs in Middlesex Co. v. Osgood, supra, is suf- ficiently supported on the ground, that the agreement of the defendant to pay was an independent stipulation, and, therefore, proof of performance on the part of the plaintiffs was unnecessary, as well as upon the ground on which it was put by the court] [t) 1 Taunt. 31S. The correctness of this decision has been doubted ; see per Best C. J. and Parke J. Carruthers v. Payne, 5 Bing. 270, 276, 277. (fl) [See Wood r. Bell, 5 El. & Bl. 772; S. C. 6 El. & Bl. 355 ; Andrews v. Du- rant, 1 Kernan, 35.] («) 8 B. & C. 277. See observations on this case in Grafton v. Annitagc, 2 C. B. 336, 340. SALE OF GOODS. 531 ready ; but he refused to accept them ; and it was held that C. could not recover the price from B. in an action for goods bargained and sold ; because there had been no specific appropriation of the machines, assented to by the purchaser, and therefore the property therein remained in the maker, (m 1 ) And where the contract is to construct certain articles, such as window frames, and to fix them to a house ; there, by the nature of the contract, the property will not pass until they are so fixed, (a;) But where a person was appointed by the intended purchaser, to superintend the building of a ship ; and by the contract ^en it will, given portions of the price were to be paid according to the progress of the work : it was held that, by the payment of those instalments of the price, the ship was specifically appropriated to the person paying the money. («/) So it was afterwards held in a similar case that, on the first instalment being paid, the property in the portion of the ship then finished vested in the intended pur- chaser, subject to the right of the builder to retain such portion for the purpose of completing the work ; and that each material sub- sequently added became, as it was added, the property of the pur- chaser as general owner. («) And in a similar case it has been held, that things which had been fitted to and formed part of the ^ship would also pass, even although, at the moment, they were not (u 1 ) [Neither the manufacture of an Spenee, and "Woods v. Eussell, under like article, pursuant to the order of a customer, circumstances, and held that the property nor the tender of the article, when manu- would not pass to the purchaser before the factored, is sufficient to transfer the title, completion of the work; and Williams v. Moody v. Brown, 34 Maine, 107. Nor will Jackman, 16 Gray, 514, adopts the doctrine the leaving of the article, so manufactured of Andrews v. Durant. See the remarks of and tendered, with the customer against Bigelow C. J. in Williams v. Jackman, 16 his will, transfer the title. lb. To transfer Gray, 514, upon'the authority of the Eng- the title there must be an acceptance, ish cases upon this subject; Briggs v. A either express or implied. lb. ; Andrews Light Boat, 7 Allen, 293 ; see, also, Hold- v. Durant, 1 Kernan (N. Y.), 35. See erness <.-. Rankin, 3 De G., F. & J. 258, Lucas o. Nichols, 15 Gray, 309; Middle- which was the case of an assignment of an sex Co. v. Osgood, 4 Gray, 447.] unfinished ship with an agreement to corn- fa;) Tripp v. Armitage, 4 M. & W. 687, plete it. See Story Sales (4th ed.), §§ 234, 698. 316; Woods v. Russell was fully approved (y) Woods v. Russell, 5 B. & Aid. and followed in Sandford u. Wiggins 942. Ivory Co. 27 Ind. 522. See Forsyth v. (z) Clarke v. Spenee, 4 A. & E. 448; Dickson, 1 Grant's Cas. 26; Green i. and see Laidler v. Burlinson, 2 M. & W. Hall, 1 Houston (Del.), 506, 546 ; "Walker 602. [In Andrews «. Durant, 1 Kernan, a. Clyde, 10 C. B. (N. S.) 381 ; Wright v. 35, the court of New York expressly re- Tetlow, 99 Mass. 397, 404 ; Mount Hope fused to follow the doctrine of Clarke v. Co. v. Buffington, 103 Mass. 62.1 532 SUBJECT-MATTER OF CONTRACTS. actually attached to the ship ; but that things which had merely been bought for the ship, though they were intended for it, would not pass, (a) So, where A. employed B. to build him a greenhouse for 50?. ; and, when it was completed, B. gave A. notice, and requested him to remit the price ; whereupon A. remitted the amount and desired B. to keep the greenhouse until sent for ; it was held that the prop- erty in the greenhouse passed to A., there having been an appro- priation of it to him by B., and an assent on his part to such appro- priation. (b~) And in another case, a chariot was made to the plaintiff's order, and paid for by him. After it had been finished in other respects, the plaintiff ordered a front seat to be added ; but the builder being slow in making the addition, the plaintiff sent for the chariot repeatedly, and the builder promised to deliver it. The plaintiff, being afterwards dissatisfied, ordered the chariot to be sold ; and, according to the custom of the trade, it stood in the builder's warehouse for that purpose, — where it remained, the front seat not having been added, until the builder became bank- rupt ; and it was held, that the plaintiff had become the owner of the chariot, and might maintain trover against the builder's as- signee, (c) 4 8. In the case of a sale of goods by auction, if several lots, put up separately, be separately knocked down to the same Sale by auc- L r ■" x / . . tion of sev- person, and on each occasion the auctioneer write down the vendee's name ; there is, in point of law, a distinct and independent contract, so as to pass the property in each lot. (d) And it has been held that a purchaser at an auction can, before paying for the goods bought, make a complete bargain and sale of them to a third party, (e) But where a party orders various articles of a tradesman, ver- (a) Wood v. Bell (in Cam. Scac), 6 E. (b) Wilkins o. Bromhead, 6 M. & G. & B. 355 ; reversing, on this point, Wood 963. And see Elliott v. Pybus, 10 Bing. v. Bell, 5 E. & B. 772. [See Brown v. 512. Bateman, L. R. 2 C. P. 272. Whether the (c) Carruthers v, Payne, 5 Bing. 270. property in the unfinished article will, (rf) See Roots v. Lord Dormer, 4 B. & under the contract, vest as it is building, Ad. 77 ; Emmerson v. Heelis, 2 Taunt, depends on the intention of the contract- 38 ; [Jenness v. Wendell, 51 N. H. 63 ; ing parties. Wood v. Bell, 5 El. & Bl. Messer v. Woodman, 22 N. H. 172; but 772 ; Briggs c. A Light Boat, 7 Allen, see Coffman v. Hampton, 2 Watts & S. 293; Walker v. Clyde, 10 C. B. (N. S.) 377; Tompkins v. Haas, 2 Barr, 74.] 380.] (e) Scott v. England, 2 D. & L. 520. SALE OF GOODS. 533 bally, on one and the same occasion and at the. same time, there is not necessarily a distinct contract so as to pass the hase { property in each article separately, although a separate several arti- price was fixed for each ; and the question in such cases is whether, under all the circumstances, it was intended that there should be an entire contract. Thus, in Baldey v. Parker, (/) it appeared that A. went to the shop of B., and contracted for the purchase of various articles, at separate prices, — the price amount- ing, in the case of each article, to less than 10Z. A. then assisted in cutting some of the goods, and marking others ; and he desired that an account of the whole might be sent in. A bill of parcels was accordingly sent with the goods ; and from this it appeared that the price of the whole was 70Z. When the goods were brought to A. for delivery, he required a discount on the whole to be al- lowed him for ready money ; this was refused. A. thereupon de- clined to take any of the goods ; and — upon the question whether, there not having been a contract in writing for the sale of the goods, so as to satisfy the statute of frauds, B. could maintain an action against A. for the price thereof — it was decided, that the transaction amounted to one entire contract within the statute. (Z 1 ) But where there was an absolute order of, and bargain for, one ar- ticle ; and at the same time an incomplete order, reserving an op- tion of sale, as to another article, it was held that such orders were distinct, (jf) 9. If a sale of goods be merely colorable and intended to cover an illegal transaction, no property in the goods will colorable pass thereby. (K) sale- So, where A. fraudulently pretended that he was buying goods for B., and the goods were sold and delivered to him as Fraudulent for B. ; it was held that there had not been any contract sale- between the parties, and that the property in the goods had not (/) 2 B. & C. 37. (g) Price v. Lea, 1 B. & C. 156. (f 1 ) [See Mills v. Hunt, 17 Wend. 33.3; (A) Hargreaves v. Hutchinson, 2 A. & Biggv. Whisking, 14 C. B. 195 ; Miner v. E. 12 ; and see Bowes v. Foster, 2 H. & Bradley, 22 Pick. 457; Paige v. Ott, 5 N. 779; [Bradley v. Hale, 8 Allen, 59; Denio, 406 ; Johnson u. Johnson, 3 Bos. Cox v. Jackson, 6 Allen, 108 ; Re Na- & Pul. 162; Clark v. Baker, 5 Met. 452 ; tional Ass. & Investment Co. 1 N. R. 5 ; Hill v. Rewee, 11 Met. 268; Davis v. Max- Ex parte, Hunt, 2 N. R. 50; Weston's well, 12 Met. 286; Shine v. Bodine, 60 case L. R. 6 Eq. 238 ; S. C. L. R. 4 Penn. St. 182; Parish v. Stone, 14 Pick. Ch. Ap. 20.] 198 ; Story Sales (4th ed.) §§ 204, 240 el seq. ; Jenness v. Wendell, 51 N. H. 63.] 534 SUBJECT-MATTER OF CONTRACTS. passed, (i) But where there has been a contract between the par- ties, then, as we shall see more fully hereafter, fraud in one of them only gives the other a right to avoid the purchase, and the property in the tiling sold vests until it is avoided ; so that all mesne dispositions to persons not parties to, or at least not cognizant of the fraud, are valid. (&) The general rule of the law of England is, that a man who has no property in goods cannot, by making a sale, transfer wrongful the property therein to another. And an action is maintainable to recover the value of goods which have been stolen from the plaintiff, and which the defendant has inno- cently purchased, although no steps have been taken to bring the thief to justice. (7) So, if a bailee of goods for hire sell the goods, the owner may sue Sale by tne purchaser as for a conversion thereof, although the bailee. purchase was bond fide, (rri) It is said, however, that if the real owner of goods suffer an- Saie by per- other to have possession thereof, or of those documents wkh thepo*- which are the indicia of property therein, — thereby session. enabling him to hold himself forth to the world as hav- ing, not the possession only, but the property, — a sale by such person to a purchaser without notice, will bind the true owner, (n) But probably this proposition ought to be limited to cases where the person who had the possession of the goods was one who, from the nature of his business, might be taken primd facie to have had the right to sell, (o) Again : if a person who has the possession of goods in a foreign Sale in for- country, sell them in a manner which is binding by the eigncountry. ]aw of that country) sucn sa i e w ;n be held binding on the owner of the goods in this country ; although, as between him and the person who sold them, it was unauthorized. (jt>) (t) Hardman v. Booth, 1H.4C. 803. 3 B. & C. 38, 42 ; per Bayley J. Boyson (k) Per Cur. Stevenson v. Newnham a. Coles, 6 M. & S. 14, 24. (in Cam. Scac.), 13 C. B. 285,303; [Story (o) See per Pollock C. B. and Martin Sales (4th ed.), §§ 200, 387.] B. Higgons v. Burton, 26 L. J. Exch. 342, (Z) White!'. Spettigue, 13 M.&W. 603; 344. Lee v. Bayes, 18 C. B. 599 ; [Story Sales (p) Cammell v. Sewell, 5 H. & N. 728. (4th ed.), §§ 188, 201, 387; Beazley v. See, as to this rule, the remarks of Black- Mitchell, 9 Ala. 780.] burn J. delivering the opinion of the (m) Cooper v. Willomatt, 1 C. B. 672; judges in Castrique v. Imrie, L. R. 4 H. Loeschman v. Machin, 2 Stark. 311. L. 414, 492. (n) Per Abbott C. J. Dyer v. Pearson, SALE OF GOODS. 535 There is also an exception to the principle, that the sale of goods by any other than the true owner shall not transfer the sale in legal title thereto, in the case of a sale in market overt. (2) But this exception applies only to bond fide sales com- menced and perfected in market overt; that is, where the goods sold are actually in the market, and where both the sale and the delivery of them takes place therein, (r) In the country, market overt, or open market, is a fair or market held at stated intervals, in a particular place, by virtue of what is a charter or prescription. In the city of London, how- marl£ etovert. ever, (s) every shop is, on every day except Sunday, a market overt, (f) But still a sale therein must, to be protected, take place in the usual and public or exposed part of the premises, where goods are placed for sale. And no place is a market overt for this purpose, except as to goods usually sold therein, and which are ap- propriate to the trade of the occupier, (t) It has, however, been held, that a sale in the city of London, in an open shop, of goods usually dealt in there, is a sale in market overt, though the premises are described in the evidence as a warehouse, and are not suffi- ciently open to the street for a person on the outside to see what passes within, (u) But a sale in market overt does not bind the crown, (x) And if goods be stolen from a common person, and afterwards cases in sold in market overt, and he prosecutes the offender to J^'.'does'iiot conviction ; the property in the stolen goods thereupon blnd - (?) Horwood o. Smith, 2 T. R. 750 ; M'Gill, 2 Har. & J. 308. The purchasing Peer v. Humphrey, 2 A. & E. 495, 499 ; a horse at a public market, established [Story Sales, §§191,194. There is no law by law for the sale of horses, &c, does recognizing the effect of the English sale in not entitle the purchaser to hold the horse market overt, in Massachusetts, Dame v. against the claim of the true owner. lb. Baldwin, 8 Mass. 521; Towne v. Collins, 14 See Champney v. Smith, 15 Gray, 512; Mass. 500 ; or New York, Wheelwright v. Buffum v. Deane, 8 Cush. 41.] Depeyster, 1 John. 480 ; Hoffman v, Carow, (r) Crane v. London Dock Company, 5 22 Wend. 285; S. C. 20 Wend. 21. See B. & S. 313; 2 Inst. 713; Case of Market Saltus v. Everett, 20 Wend. 267 ; S. C. Overt, 5 Co. 83 a; 2 Boll. Abr. tit. Mar- 15 Wend. 474; Mowrey v. Walsh, 8 ket Overt; Bac. Abr. Fairs (E.) ; 2 BI. Cowen, 238 ; or Pennsylvania, Hardy v. Com. 449; Wilkinsonti. King, 2 Camp. 335. Metzgar, 2 Yeates, 347 ; Leckey v. Me- (s) Semble, not in the Strand, Anon. Dermott, 5 Serg. & R. 130 ; or Vermont, 12 Mod. 521. A horse repository, not in Heacock v. Walker, 1 Tyler, 341 ; Griffith the city of London, is not a market overt, v. Fowler, 18 Vt. 390 ; or Ohio, Roland Lee v. Bayes, 18 C. B. 599. v. Gundy, 5 Ohio, 202. See Ventress v. (t) The Case of Market Overt, 5 Co. 83 a. Smith, 10 Peters, 161 ; nor is there any («) Lyons v. De Pass, 11 A. & E. 326. in the State of Maryland. Browning v. (x) 2 Stcph. Com. 124. 536 SUBJECT-MATTER OF CONTRACTS. revests in the owner, under the 7 & 8 Geo. 4, c. 29, s. 57 ; and he may sue for the recovery thereof, though there has been no order for restitution under that statute. («/) The right to follow goods sold by a person who has obtained them by fraud, will be considered hereafter. [Although as between vendor and vendee, and against strangers Deliver;' all< l trespassers, the title to personal property passes by sakincaseof sa ^ e without delivery, the same rule does not operate subsequent against subsequent purchasers, attaching creditors, and &c. others standing in like relation. To render a sale valid against these there must be a delivery of the property sold, (j/ 1 ) When, therefore, the same chattels are sold to two different per- sons by conveyances equally valid, lie who first lawfully acquires the possession will hold it against the other, (j/ 2 ) The formalities of a delivery necessary to protect a vendee in such cases, will adapt themselves in a measure to the char- rorm and 1 mode of acter and situation of the property sold. Thus of pon- delivery. . . . derous articles, a symbolical or constructive delivery will be sufficient. («/ 3 ) So, a contract of sale including many different articles may be completed by a delivery of part in the name of the whole, (j/ 4 ) So, a delivery of the key of a shop or other store- house, though at a place distant from it, if made with intent to surrender the possession of the property stored therein to the vendee, will render the sale of such property effectual against third (y) Scattergood V.Sylvester, 15 Q. B. 506. driving. The vendor, in presence of a (y l ) [Packard v. "West, 4 Gray, 307 ; Vin- witness called for the purpose by the iny v. Gilbreth, 39 Maine, 496 ; Ludwig v. vendee, declared that he delivered the Fuller, 17 Maine, 162; Shumway v. Rut- horse and sleigh to the vendee, together ter, 7 Pick. 56 ; Carter v. Willard, 19 Pick, with the other enumerated articles, not 1 ; Parsons v. Dickinson, 11 Pick. 352.] then present; after which the vendee got (y 1 ) [Fletcher w.Howard, 2 Aiken, 115; into the sleigh with the vendor, and they Brown v. Pierce, 97 Mass. 46, 48 ; Dawes drove away together. As between an at- o. Cope, 4 Binney, 258 ; Lanfear v. Sum- taching creditor and the vendee, being a ner, 17 Mass. 113 ; Babb v. Clemson, 11 bond fide purchaser for a valuable consid- Serg. & R. 419; Hoofsmith v. Cope, 6 eration, testimony of the above facts may Whart. 53 ; 2 Kent, 522.] be submitted to a jury as evidence both (y 3 ) [Leistienness v. Berry, 38 Maine, of actual and symbolical delivery, and, if 83 ; Shurtleff v. Willard, 19 Pick. 210.] found to be so intended by the parties, this (y*) [Phelps v. Cutler, 4 Gray, 137; evidence would warrant the jury in finding Chappel v. Marvin, 2 Aiken, 79. In a legal delivery of all the property included Phelps a. Cutler, ubi supra, a contract of in the contract of sale, although evidence sale was made of several enumerated arti- was also introduced to show that the ven- cles, among which were a horse and sleigh, dor afterwards continued in the possession, which the vendor and vendee had been use, and control thereof.] SALE OF GOODS. 537 persons, (j/ 6 ) So, where sheep were selected and marked, and left in the possession of a third party, who was desired and who con- sented to hold them for the vendee, this was held to be a sufficient delivery to complete the sale and pass the property, as against the creditors of the vendor. (^ 6 ) (y b ) [Vining v. Gilbveth, 39 Maine, 496 ; Packard v. Dunsmore, 11 Cush. 282; 2 Kent (6th ed.), 499, 500; Wilkes v. Ferris, 5 John. 335. On a sale of chattels, a de- livery of part, and an agreement to deliver the key of a shop containing the residne to a third person, and an actual delivery of the key to such third person for the use of the vendee, is a sufficient delivery of the whole, and will enable the vendee to sustain trespass against a subsequent pur- chaser from the original owner of the chattels under lock and key, notwithstand- ing such subsequent purchaser first gets actual possession of, them by borrowing the key of the shop from the third person, with whom it was so left. Chappel v. Marvin, 2 Aiken, 79. See, also, Ludwig v. Fuller, 17 Maine, 166 ; Bicker v. Cross, 5 N. H. 571 ; Shindler v. Houston, 1 Denio, 48 ; S. C. 1 Comst. 261 ; Calkins u. Lockwood, 17 Conn. 174; Stinson v. Clark, 6 Allen, 340 ; Boynton v. Veazie, 24 Maine, 286. But in Packard v. Wood, 4 Gray, 307, it was held that a delivery of a deed of a bakehouse and land in a distant place, and of » bill of sale including all the implements in the house and a bread- cart standing under an open shed upon the land, accompanied by a delivery by the vendee to the vendor of a lease of the house, land, cart, and implements, is not sufficient evidence of a delivery of the cart, as against an attaching creditor of the vendor. It has been decided in Vermont, that there must he a substantial and visi- ble change of possession in order to per- fect a sale of chattels as against the cred- itors of the vendor. Hutchins v. Marshall, 10 L. Rep. (N. S.) 55, 56. And notice of the sale to the creditors is of no avail, as it is but notice of an imperfect sale. lb. But see Ludwig v. Fuller, 17 Maine, 162, in which it was held that if a party claim- ing title under the vendor of personal property, either as attaching creditor or as a subsequent purchaser, have notice of the prior sale before his rights accrued, he can- not allege any defect in the sale for want of a delivery.] (j 6 ) [Barney v. Brown, 2 Vt. 374. It is not necessary to the delivery, required to complete a sale of personal property, that the property should actually pass into the hands of the vendee ; if it is so situated that he is entitled to, and can rightfully take possession of it at his pleasure, the sale is perfected. Means v. Williamson, 37 Maine, 556 ; Heine v. Anderson, 2 Duer, (N. Y.) 318. In Hutchins v. Gilchrist, 23 Vt. 88, which was a case of a sale of logs lying upon the land of a third person, the court said, that " it was not necessary to render a sale of logs, under such circum- stances, valid, as against the creditors of the vendor, that there should be a change in their situation ; and that there might be a change in the possession, while the site of the property remained the same." See Birge v. Edgerton, 28 Vt. 291 ; Sanborn v. Kittredge, 2 Vt. 639 ; Mills v. Camp, 14 Conn. 219; White u. Welsh, 2 Wright (Penn.), 396 ; Bradley v. Wheeler, 4 Rob. (N. Y.) 38. Where the property at the time of the sale is in the possession and control of the vendee, no formal act of de- livery is necessary. Nichols v. Patten, 18 Maine, 231. See Carrington v. Smith, 8 Pick. 419 ; Johnson v. M'Donald, 9 M. & W. 600; ShurtlefF v. Willard, 19 Pick. 209, 210 ; Taylor v. Wakefield, 6 El. & Bl. 765. So, where there is a sale of prop- erty under attachment and in the hands of the officer, and the purchaser of it from the debtor cannot receive an actual posses- sion, a symbolical delivery of it will be suf- ficient. Wheeler v. Nichols, 32 Maine, 233; Whipple v. Thayer, 16 Pick. 25; Mitchell v. Cunningham, 29 Maine, 376; Fettyplace v. Dutch, 13 Pick. 388. In 538 SUBJECT-MATTER OF CONTRACTS. On a sale with delivery of chattels, at a fixed price, to be paid on Title to re- a certain day, but until paid the title to remain in the vendor tin vendor, payment is a condition precedent, and until payment performance the property is not vested in the vendee, (j/ 7 ) The vendor, in such case, if guilty of no laches, may reclaim the chattels, where the price has not been paid, even from one who has purchased them from his vendee in good faith and without no- tice. . Burrell, 18 John. 58; Robertson i. Vaughan, 5 Sandf. 1.1 SALE OF GOODS. 543 complete and deliver, infuturo, goods not in existence, and conse- quently not capable of delivery, or part acceptance, at Sale of goods the time of the bargain, — such as a contract to make not m esi or build a ship, a chariot, or the like. (¥) Bj the statute 9 Geo. 4, c. 14, s. 7, however, — after reciting that it had been held that the English and Irish (I) 9 Geo. 4, c. statute of frauds, as to the sale of goods, did not extend s ' to certain executory contracts for the sale of goods, which, never- theless, were within the mischief thereby intended to be remedied, and that it was expedient to extend the said enactments to such executory contracts, — it was enacted : " That the said enactments shall extend to all contracts for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be intended to be delivered at some future, time, or may not, at the time of such contract be actually made, 'procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.'" And this statute applies to all cases, where the contract Applies to is for a chattel to be afterwards made and delivered, for S r mg ts a for the price of 10?. or upwards, (to) chattel; But a contract for work and materials, e.g. a contract not to con- by a printer to print so many copies of a work at a fixed ^"k and pi-ice, including paper, is not within the statute, (w) materials. It seems, moreover, that if the price amount to 10L, the contract is within the statute, although at the time of the bargain it was un- (&) Towers v. Osborne, 1 Str. 506; of such contracts. Eichelberger v. M'Cau- Cooper v. Elston, 7 T. E. 17 ; Buxton v. ley, 5 Harr. & J. 213; Cason v. Cheely, 6 Bedall, 3 East, 305 ; Mucklow v. Mangles, Geo. 554 ; Sewall v. Fitch, 8 Cowen, 215 ; 1 Taunt. 318, 320 ; Emmcrson v. Heelis, Mixer v. Howarth, 21 Pick. 205 ; Clark v. 2 Taunt. 42 ; Groves v. Buck, 3 M. & S. Nichols, 107 Mass. 547 ; Downs v. Boss, 178; [Abbott v. Gilchrist, 38 Maine, 260 ; 23 Wend. 270; Courtright u. Stewart, Courtright v. Stewart, 19 Barb. 455; 19 Barb. 455; Gorham v. Fisher, 30 Vt. Higlit v. Ripley, 19 Maine, 137 ; Cum- 428. The transportation and delivery to mings v. Dennett, 26 Maine, 397 ; Bron- be made of goods sold have never been son v. Wiman, 10 Barb. 406 ; Spencer v. considered as work and labor to be done Cone, 1 Met. 283 ; Allen v. Jarvis, 20 upon them. Waterman v. Meigs, 4 Cush. Conn. 38 ; Crookshank;;. Burrell, 18 John. 499; Jackson v. Covert, 5 Wend. 139; 58 ; Clay v, Yates, 1 H. & N. 173. But Downs v. Boss, 23 Wend. 270.] the doctrine that contracts for the sale of {I) The statute 9 Geo. 4, c. 14, does not goods, where work and labor are to be be- extend to Scotland. See sect. 9. stowed on them previous to delivery, are (m) Lee v. Griffin, 1 B. & S. 272 ; [Pit- not within the statute of frauds, is only to kin v. Noyes, 48 N. H. 294.] be extended to cases where the work and (n) Clay v. Yates, 1 H. & N. 73. labor to be done may be considered parts 544 SUBJECT-MATTER OF CONTRACTS. certain whether the price would amount to that sum. (o) And Price may be it is not material that the price agreed upon was en- uncertam. ] la nced by the fact, that the vendor had to incur an ex- pense in causing the goods to be conveyed to the purchaser, (p) „, 2. Next as to the provisions of the statute, with refer- Whatisasuf- r . ' ficient memo- ence to what shall constitute a valid contract for the randuni . c , within the Sale Ot gOOQS. Now, in order to this, there must be a "memo- randum or note in writing of the bargain," " signed by the parties to be charged with such contract, or their agents thereunto lawfully authorized." And the memorandum of the bargain required by the Memorandum ° x J must be made statute must be made before action brought, (o) before action. . 1 i * i in i As to what this memorandum shali contain, it has thTmemo- been held that a memorandum is insufficient which does randum. no (- mention the names of both buyer and seller, or their agents, (r) so that it may appear — either upon the face of the memorandum itself, or from the memorandum taken in connection with the surrounding circumstances — who are the contracting parties ; (s) or which contains a mere offer or proposal in writing, not accepted by the other side, (t) But the omission of the partic- ular mode or time of payment, or even of the price itself, does not (o) Watts v. Friend, 10 B. & C. 446, plaintiffs' "order-book," on the fly-leaf, at 448, note. [The party, who seeks the pro- the beginning of which were written the names tection of the statute, must show affirm- of the plaintiffs ; and the defendant wrote atively, that the price does reach that sum. his name at the foot of the entry, for the Crookshank v. Burrell, 18 John. 58.] purpose of verifying the bargain, and this (p) Anstey v. Emery, 4 M. & S. 262. was held a sufficient signature of the con- (q) Bill v. Bament, 9 M. & W. 36. tract, and the names of the parties thereto (r) Williams v. Lake, 2 E. &E. 349; 29 sufficiently appeared to satisfy the condi- L. J. Q. B. 1 ; Graham v. Musson, 7 Scott, tions of the seventeenth section of the 769, 776 ; Champion v. Plummer, 1 N. R. statute. Sari v. Bourdillon, 1 C. B. (N. 272; Bateman v. Phillips, 15 East, 272; S.) 186. The memorandum should show [Waterman w. Meigs, 4 Cush. 497 ; Nichols which party is the buyer and which the v. Johnson, 10 Conn. 192 ; Sherburne v. seller. See Bailey v. Ogden, 3 John. Shaw, 1 N. H. 157 ; Webster v. Ela, 5 N. 399 ; Nichols u. Johnson, 10 Conn. 198; H. 540; Barry v. Law, 1 Cranch (C. C), Osborne u. Phelps, 19 Conn. 73; Curtis 77 ; Coddington v. Goddard, 16 Gray, 442, J. in Salmon Falls Manuf. Co. v. Goddard, 443. The defendant went into the plain- 14 How. (U. S.) 446.] tiffs' shop, and agreed to purchase certain (s) See Vandenbergh v. Spooner, L. K. goods in the aggregate, exceeding the l Exch. 316; Newell o. Radford, L. R. 3 value of £\0. The several articles with C. their respective prices were entered in the Ante, 95, 96. SALE OF GOODS. 545 necessarily invalidate the contract ; (u) although, if the price be agreed upon, it must be stated in the memorandum. (y~) And a written memorandum, whereby the defendant agrees to buy certain goods at a specific price, is good under the statute, though it does not express any consideration for this promise. (m>) Nor is it necessary that the whole of the terms of the contract should be comprised in one memorandum ; it being sufficient if they (k) Per Cur. Valpy v. Gibson, 4 C. B. 837, 864 ; Hoadly v. M'Laine, 10 Bing. 482 ; Acebal v. Levy, lb. 382. An order for goods " on moderate terms," is suffi- cient to satisfy the statute. Ashcroft v. Morrin, 4 JI. & G. 450. [The form of the memorandum of the bargain is not mate- rial, but it must state the contract with reasonable certainty, so that the substance of it can be understood from the writing itself, without having recourse to parol proof. Bailey v. Ogden, 3 John. 399 ; Curtis J. in Salmon Falls Manuf. Co. v. Goddard, 14 How. (U. S.) 446. A letter from the purchaser to the vendor, alluding to a parol agreement for the sale of goods, and inquiring whether they will be ready at the time agreed upon, but not mention- ing the quantity, quality, or price of the goods, or the time of payment, is not a sufficient memorandum to take the agree- ment out of the statute of frauds. Water- man v. Meigs, 4 Cush. 497. But if the memorandum contains the names of the seller and of the purchaser — the commod- ity and the price — and also the time of credit, and conditions of the delivery, it will be sufficient, although there is not in the memorandum any specified time or place of delivery ; the law will supply the omission, namely, a reasonable time after the goods are called for, and the usual place of business of the purchaser, or his customary place for the delivery of goods of the description. Salmon Falls Manuf. Co. v. Goddard, 14 How. (U. S.) 446,' 455, 456, per Nelson J. In this case the follow- ing memorandum was held sufficient to take the case out of the statute, viz. : " Sept. 19, W. W. Goddard, 12 mos. 300 bales, S. F. drills, 1{ ; 190 cases blue do. 8j. Credit to commence when ship vol. i. 35 sails ; not after Dec. 1st, delivered free of charge for truckage. The blues, if color satisfactory to purchasers. R. M. M. — W. W. G." It was also held that parol evidence of the usage and practice in the trade was admissible to explain the mean- ing of terms technical or equivocal on the face of the instrument, or made so by ref- erence to extraneous circumstances ; and that a bill of parcels delivered might be referred to, for the purpose of explanation, where it was made out and delivered by the seller, in the course of the fulfilment of the contract, acquiesced in by the buyer, and the goods ordered to be delivered after it was received. Mr. Justice Curtis and Mr. Justice Catron dissented, and the former gave a learned dissenting opinion. See Sherburne v. Shaw, 1 N. II. 157.] (v) Goodman v. Griffiths, 1 H. & N. 574 ; Elmore v. Kingscote, 5 B. & C. 583 ; Hoadly v. M'Laine, supra; [Ide v. Stan- ton, 15 Vt. 691 ; Smith v. Arnold, 5 Mason, 416; Buck c. Pickwell, 27 Vt. 167 ; Adams v. M'Millan, 7 Porter, 73; Soles v. Hickman, 20 Penn. St. 180 ; Kay v. Curd, 6 B. Mon. 103 ; Ellis f. Deadman, 4 Bibb, 467 ; Kinloch v. Savage, 1 Speers Eq. 470. If terms of credit be agreed upon, and a time for performance be stip- ulated, they should appear in the memo- randum. See Davis v. Shields, 26 Wend. 341 ; Curtis J. in Salmon Falls Manuf. Co. v. Goddard, 14 How. (U. S.) 446 ; Morton u. Dean, 13 Met. 388 ; Soles v. Hickman, 20 Penn. St. 180 ; Buckw. Pick- well, 27 Vt. 167 ; Elfe v. Gadsden, 2 Rich. (S. Qar.) 373; Boardman u. Spooner, 13 Allen, 353. As to the necessity of stating the price or consideration, seeante,91, note (a) and cases cited.] (w) Egerton v. Matthews, 6 East, 307. 546 SDBJECT-MATTEE OF CONTRACTS. ments ; or proved by letter written after eon- tract made ; Contract can he collected from several distinct writings, havincr may be con- & ' to tainedinsev- reference to the same subject-matter, (x) eral docu- „ . ,. „ . . bo it, atter the transaction has taken place, it be rec- ognized in a letter written by the party to be charged, which refers to the specific contract, and not merely to the subject-matter, this will satisfy the statute, (j/) Thus, in Saunderson v. Jackson, (a) it was decided, that, whether or not a bill of parcels, in which the vendor's name was printed, and which was delivered to the vendee at the time of an order given for the future delivery of goods, was a sufficient memo- randum within the statute, (z 1 ) at all events, a subsequent letter, written and signed by the vendor, referring to the order, might be connected with the bill of parcels, so as to take the case out of the statute. So, in Allen v. Bennett, (a) it was held that an order for gcods, written and signed by the seller, in a book of the buyer, might be connected with a letter of the seller to his agent, mentioning the name of the buyer ; and witli a letter of the buyer to the seller, claiming the performance of the order, so as to constitute a com- plete contract. The purchasers of flour wrote to the vendors, complaining of the (x) Ante, 95, 96 ; and see Thomas v. Derring, 1 Jur. 211 ; [Lerned o. Wanne- macher, 9 Allen, 415-418; Salmon Falls Manuf. Co. v. Goddard, 14 How. (U. S.) 456 ; Gale v. Nixon, 6 Cowen, 445.] (y) See Johnson p. Dodgson, 2 31. & TV. 653, 659, 660 ; [Waterman v. Meigs, 4 Cush. 497 ; ante, 94, note (m 1 ) ; Wil- liams v. Bacon, 2 Gra} r , 387 ; Sieveright, u. Archibald, 17 Ad. & El. 107, 114. A written notice signed, referring to a written proposal not signed, and made several years will not bind him. Grant v. Levan, 4 Barr, 393. It is not necessary that the memorandum should be drawn up for the express purpose of authenticating the agreement ; if it recognizes the bargain and is delivered and accepted, it will be sufficient. Ellis v. Deadman, 4 Bibb, 467 ; Smith v. Arnold, 5 Mason, 416 ; Keeves v. Pye, 1 Cranch (C. C), 219. Whether letters addressed to a third party stating and affirming a contract may be used as a sufficient memorandum, though affirmed before, maybe so connected with it, as to in some cases; Moore v. Hart, 1 Vern. render the two documents a contract suffi- ciently signed within the statute of frauds. Lowry v. Dufferin, 1 Irish Eq. 281. A paper, however formally drawn up, if it indicates merely that an agreement is to be prepared, is not to be taken as, of itself, an agreement, or memorandum answering the claims of the statute. Cooke u. Toombs, 2 Anst. 420; Pipkin ,.. James, 1 Humph. (Tenn.) 325. So, a paper drawn up and signed, but retained by the party signing it, and never delivered as his agreement, 110; Ayliffe ,. Tracy, 2 P. Wms. 65; Fugate b. Hanford, 3 Litt. 262 ; is appar- ently denied in others. Buck c. Pickwell, 27 Vt. 167 ; Clark a. Tucker, 2 Sandf. 157 ; Kinloch v. Savage, 1 Speers Ch. (S. C.) 470.] (z) 2 B. & P. 238, cited in Kenworthy v. Schofield, 2 B. & C. 947. (z 1 ) [See Salmon Falls Manuf. Co. v. Goddard, 14 How. (TJ. S.) 456.] (a) 3 Taunt. 169. SALE OF GOODS. 547 quality of part which had been delivered, and stating in such letter the full terms of the contract. The vendors answered, in writing, that they considered that they had performed their contract, as far as it had gone, and were ready to complete the remainder ; and that, unless the flour was paid for at the expiration of one month, proceedings would be taken ; and it was held, that this was suffi- cient to warrant the jury in concluding, that the contract men- tioned in the vendor's letter was the same as that stated in the pur- chaser's letter ; and, therefore, that the two writings constituted a sufficient memorandum of the contract under the statute. (5) The defendant, having purchased the lease of a house at a pub- lic auction, afterwards wrote to the auctioneer, requesting him to send the key, and stating that his auctioneer was desirous of taking an inventory of the fixtures. The auctioneers accordingly met ; and, as they did not agree in their valuation, they appointed an um- pire, to i whom they inclosed an inventory, stating the fixtures to be the property of the plaintiffs, and that? they were to be valued to the defendant. The umpire made a valuation, appraised the fix- tures at a certain sum, and returned the inventory, with an ap- praisement, duly stamped. The defendant, by letter, afterwards requested the plaintiffs' auctioneer to remove the fixtures, which was done ; and the following day the defendant wrote to the plain- tiffs, that he would attend at the house, and pay them the value of the fixtures, as settled by the appraisers. The first and last letters were signed by the defendant ; and it was held that, taking the in- ventory, appraisement, and correspondence together, they estab- lished a sufficient memorandum of the contract to satisfy the stat- ute, (c) And it has been held, that a letter signed by the party to be charged, written to Ms own agent, and referring to let- evenl0a ters of the agent to him, which stated the terms of the thlrd party. contract, is sufficient to satisfy the statute, (d) And if a letter written by the party to be charged, after the transaction has taken place, state and admit the terms of Efl . the contract, this will be a good memorandum under the mission of liiiii • i cont ract, ac- statute ; although such letter also contain an attempted companied repudiation by the writer, of his liability under the con- tion aTiia-" tract. Thus where the defendant, in answer to an ap- ' lty ' (b) Jackson v. Lowe, 1 Bing. 9. {d) Gibson v. Holland, L. E, lC.P.l; (c) Hemming v. Perry, 1 M. & P. 375. [ante, 546, note (a;).] 548 SUBJECT-MATTER OF CONTRACTS. plication for payment for certain goods, wrote as follows : " The only parcel of goods selected for ready money was the chimney- glasses, amounting to 38/. 10s. 6d., which goods I have never re- ceived, and have long since declined to have, for reasons made known to you at the time ; " this was held to be a sufficient memo- randum under the statute, (e) But in Cooper v. Smith, (/) — where the defendant had written a letter in which, though he admitted the order, he insisted that the goods had not been delivered in time, and that therefore he was not bound to take them, — it was held, that such letter was not a suffi- cient memorandum under the statute. This case was recognized in Richards v. Porter, () But it would appear that this opinion cannot be supported. (c[) So an unsigned contract is invalid, though it were read over to the party, by his desire, at the time it was written, (r) And a letter, without a signature in some way, will not satisfy the statute. Therefore, a letter by a mother to her son, beginning, " My dear Robert," and ending, " your affectionate mother," with a full direc- tion containing the son's name and place of abode, is not sufficient, without an actual signature by the mother, (s) Much of the commercial business of this country is carried on Signature by through the medium of persons who buy and sell goods bought and for others on commission, and are called brokers; and sold note. pr imd facie, a broker is the agent only of the person who employs him. (t) But where he is employed to buy or sell goods for one person, and he agrees with another for their sale or purchase, he is considered to be the agent of both, (i 1 ) and his signature to either the bought or the sold note, will bind both parties within the statute, (it) (n) Godwin v. Francis, L. Rep. 5 C. 11 ; Rucker v. Cammeyer, 1 Esp. 105; P. 295. Simon v. Motivos, 3 Burr, 1921 ; Russell (o) See Baker v. Deering, 8 A. & E. on Factors, 66. [But see Shaw v. Finney, 94; Selby v. Selby, 3 Mer. 2, 6. 13 Met. 453. In this case, H., a broker, (p) Melford v. Beazley, 3 Atk. 503 ; per whose business was to buy and sell fish, Lord Eldon, Coles v. Trecothick, 9 Ves. as well for himself as for others, was au- 248, 251. thorized by S. & Co. to buy fish for them, (q) See Gosbell u. Archer, 2 A. & E. and bargained with F. for a quantity of 500, 508. fish, intending to buy fpr S. & Co., but (r) Cooper v. Smith, 15 East, 103. not intimating to F. that he was not buy- (s) Selby v. Selby, 3 Mer. 2. ing for himself, and made this written (() Darrell v. Evans, 6 H. & N. 660 ; memorandum of the bargain : " October Kinnitz r. Surrey, cited Paley on Agency, 21st, 1846. F. agrees to sell H. his fare 171. of fish, at $2.50 per quintal, as they lay, (t 1 ) [See Merritt v. Clason, 12 John, or to go on flakes one good day, at $2.62} ; 102 ; S. C. 14 John. 484 ; Hinkley v. Arey, and to have the refusal of them until Fri- 27 Maine, 362 ; Story Agency, § 28, 31 ; day evening, 23d instant." H. gave no- Farnsworth u . Hemmer, 1 Allen, 494 ; tice to F., before Friday evening, that he Rupp />. Sampson, 16 Gray, 398.] would take the fish at $2,62j, they to be (w) Parton v. Crofts, 16 C. B. N. S. put on flakes one good day ; F. refused to SALE OF GOODS. 551 And it would appear that, if there be a good note in the broker's book, but no bought or sold note, the note in the broker's book, signed by him, will be good evidence of the contract, to satisfy the statute. (V) So, a valid contract may be made by perfect notes signed by the broker, and delivered to the respective parties ; al- though the broker's book contain no entry, or contain an entry which is not signed, (jj) But it is questionable whether a machine copy of a contract, made in the broker's book, would be a sufficient writing to satisfy the statute, (z) And where the same broker acts for both parties, the bought and sold notes delivered by him should correspond with Effect of the each other ; for if they differ in any material respect, sokuoteTnot they do not constitute a binding contract, (a) Thus, a s reem s- where a broker, employed by the plaintiff to sell Petersburg clean hemp, and by the defendant to buy hemp, sold to the defendant and gave him, by mistake, a sale note of Riga Rhine hemp, — a description of hemp of a different quality from the Petersburg, — and gave the plaintiff a note of the sale of Petersburg clean hemp ; the court held that no contract for the sale of the hemp in question subsisted between the parties. (5) -But where the same broker does not act for both parties, then, if the notes do not correspond, it is for the jury to say by which note both parties intended to be bound, (c) deliver the fish to H., and S. & Co. brought of a sale made by him, where no sale note an action against F. for breach of the bar- is delivered, must agree with the contract gain. It was held, that the case was with- as actually concluded, or neither party is in the statute of frauds, and that the action bound. Davis v. Shields, 26 Wend. 341. could not be maintained. Wilde J. said: See Boardman v. Spooner, 13 Allen, 353.] " Cases were cited from the English au- (y) Groom r. Aflalo, 6 B. & C. 117. thorities, as to similar contracts made by (z) Pitts v. Beckett, 13 M. & W. 743. brokers ; but these authorities are not ap- [a) Moore u. Campbell, 10 Exch. 323, plicable to the present case. A broker, in 330 ; Cumming v. Roebuck, Holt N. P. C. England, is a known legal public officer, 172 ; Grant v. Fletcher, 5 B. & C. 436 ; governed by statute; and those who deal Sievewright c. Archibald, 17 Q. B. 103; with him are to find out who his principals Gregson v. Buck, 4 Q. B. 747 ; Cowie v. are. He cannot act as principal without Remfrey, P. C. 10 Jur. 789; [Suydam u. violating his oath ; and he is also liable to Clark, 2 Sandf. 133.] As to the admissibil- a penalty if he does. 1 Tomlins's Law ity of parol evidence to explain variance Dictionary, 274."] between bought and sold note, Kcmpson (x) Sievewright v. Archibald, 17 Q. B. c. Boyle, 3 H. & C. 763. 103 ; Townend v. Drakeford, 1 C. & K. (6) Thornton v. Kempster, 5 Taunt. 20, 22 ; and per Parke B. Pitts t\ Beckett, 786. See Roe v. Osborne, 1 Stark. 140. 13 M. & W. 743, 746 ; [Coddington v. God- (c) Moore v. Campbell, 10 Exch. 323, dard, 16 Gray, 442. The entry by a broker 330. C>02 SUBJECT-MATTER OF CONTRACTS. And where the bought and sold note given to the plaintiff!, varied from that made out for the defendant, — the latter specifying the 1st July as the day for cash, with discount, at the end of the sold as well as of the bought note ; the former specifying that day only at the end of the bought note, — the court held that, as the plaintiff's bought and sold note was all written on the same sheet of paper, the 1st July, specified at the end of the bought note, must be taken to apply equally to the contract in the sold note ; and that, therefore, the instrument corresponded sufficiently with the bought and sold note made out for the defendant. (cT) Whether, if the bought and sold notes disagree, and there be a Effect of sig- memorandum in the broker's book, made according to broker'sbook the intention of the parties, that memorandum, signed m such cases, j-, Y |j le broker, would be good evidence to satisfy the statute of frauds, appears to have been considered vexata qucestio.(e) But in a recent case, a majority of the judges of the court of queen's bench held that it would. (/) And, in like manner, it has been decided by the court of common pleas, that where a com- plete contract for the sale of goods is proved by means of letters which have passed between the brokers of the parties ; this con- tract is not invalidated, because bought and sold notes have been afterwards exchanged between the brokers, containing terms not warranted by the authority given to the buyer's broker. (. Topp, 4 Exch. 390, 395; (t) Per Cur. Morton o. Tibbett, 15 Q. 18 L. J. Exch. 374. B. 428, 438. 560 SUBJECT-MATTER OF CONTRACTS. Thus, in Elmore v. Stone, (u) it appeared that the plaintiff, who kept a livery stable and was a horse-dealer, having demanded a cer- tain sum as the price of the horses in question, the defendant, after offering a less price, which was rejected, at length sent word that " the horses were his, but that, as he had neither servant or stable, the plaintiff must keep them at livery for him." The plaintiff, upon this, removed them out of his sale stable into another stable. And the court held, that this amounted to a delivery within the statute of frauds ; that there was a change of possession ; that the plaintiff had given up his lien for the price ; and that he held the horses, not as owner, but as any other livery stable keeper might have clone. (it 1 ) On the other hand, in the case of Carter v. Touis- sant, (:e) the facts were, that a horse was sold by verbal contract, but no time was fixed for payment of the price. The horse was to remain with the vendor for twenty days, without any charge to the vendee ; and, at the expiration of that time, the horse, which had been previously fired with the consent of the defendant, was, by his direction, sent to grass and entered as one of the vendor's horses. And the court held, that there had been no acceptance of the horse by the vendee, within the statute ; distinguishing the case from that of Elmore v. Stone, on the ground that the plaintiff's character as owner remained unchanged from first to last ; and that he could not have been compelled to deliver the horse, without the payment of the price. So, in Tempest v. Fitzgerald, (y) A. agreed to purchase a horse from B. for ready money, and to take him within a time agreed upon. About the expiration of that time, A. rode the horse, and gave directions as to its treatment, but requested that it might re- main in B.'s possession for a further time, promising that he would then fetch it away and pay the price ; to which B. assented. The horse died before A. paid the price, or took it away ; and the court held, that there had been no sufficient acceptance of the horse to render the vendee liable for the price, on the ground, that the pay- (u) 1 Taunt. 458. This case has been Brengeri, 5 C. B. 301,313; [Ballard u. doubted. See per Bayley J. Howe v. Wait, 16 Gray, 55, 57.] Palmer, 3 B. & Aid. 321, 324 ; and Best (u 1 ) [See Olyphant o. Baker, 5 Denio, C. J. Procter v. Jones, 2 C. & P. 532, 534. 379 ; Ely v. Ormsby, 12 Barb. 570 ; Mar- But it is now recognized as good law. See vin v. Wallis, 6 El. & Bl. 726; Green a. per Bayley J. Smith v. Surman, 9 B. & C. Merriam, 28 Vt. 801.] 561, 570 ; per Coltman J. Beaumont e. (x) 5 B. & Aid. 855. (y) 3 B. &Ald. 680. SALE OF GOODS. 561 merit of the price was to be an act concurrent with the delivery of the horse ; that the defendant had no property in the horse till the _ price was paid ; and that he could not, till then, exercise any act of ownership, so as to change the property, which consequently re- mained in the vendor, (z) But where the defendant, having bargained with the plaintiff for the purchase of wool from him at a certain price, removed it to a warehouse used by him for that purpose, — the course of dealing being, that the wool remained on those premises until paid for ; and the wool was then packed in sheeting which belonged to the defendant, but it was not removed or paid for ; it was held, that there had been a sufficient delivery and acceptance of the -wool within the statute, although the plaintiff still retained a special in- terest in it — not properly a lien — in respect of the engagement not to remove it till paid for. (a) So, it has been suggested, that there can be no acceptance, so long as the vendor retains his right to stop in transitu. Quwre, as to But the test suggested from the consideration of this ven dor's right, would appear to be very imperfect for the purpose r 'f^ 8 t ; B stop of ascertaining the meaning of this provision of the stat- transitu* ute. (5) 4th. Again : the statute requires, as we have seen, that the pur- chaser shall " actually receive " the goods. And ac- „ ,. J & Delivery to cordingly it has been held, that although, where they carrier; or r. , , , • , • , • , - i°to ship are forwarded to him by a particular carrier, by his chartered by direction ; or are put on board a ship chartered by ui er him, this may amount to a delivery to him ; yet this does not amount to an acceptance by the purchaser, so as to satisfy the stat- ute, (c) So, where the goods are ordered to be sent by sea, but the buyer does not name a ship, the mere delivery of the goods on Delivery on board a ship, and the signing by the master of that ship J°"„ a ^ lp of a bill of lading, to carry the goods for the buyer, is b 7 buyer. not a sufficient acceptance, (d) (z) And see Holmes v. Hoskins, 9 Exch. Norman v. Phillips, 14 M. & W. 277, 283 ; 653. Johnson v. Dodgson, 2 M. & W. 653, 656. (a) Dodsley v. Varley, 12 A. & E. 632. [See Fletcher J. in Frostburg Mining Co. (6) Per Lord Denman and Coleridge J. v. New Eng. Glass Co. 9 Cush. 119 ; Shep- Bushel v. Wheeler, 15 Q. B. 443, 445; herd v. Pressey, 32 N. H. 55; Spencer v. Acebal v. Levy, 10 Bing. 376. Hale, 30 Vt. 315.] (c) Meredith v. Meigh, 2 E. & B. 364; (d) Meredith v. Meigh, 2 E. & B. 364. vol. i. 36 562 SUBJECT-MATTER OF CONTRACTS. So, where A., a merchant in London, had been in the habit of 0rtoa selling goods to B., who resided in the country, and of wharfinger, delivering them to a wharfinger in London, to be for- warded to B. by the first ship; and, in pursuance of a verbal order from B., goods were delivered to, and accepted by the wharfinger, to be forwarded in the usual manner : it was held, that this was no acceptance by B. (e) And where the defendant agreed to pur- chase of the plaintiff a quantity of goods, which were to be sepa- rated from the bulk ; and gave the plaintiff a note addressed to a wharfinger, to receive and ship the goods ; and the plaintiff accord- ingly sent some goods to the wharfinger, which the defendant, on inspection, rejected, as not being what he bargained for ; it was held, that there had not been an acceptance to satisfy the stat- ute.(/) 5th. It was formerly held, that there could not be an acceptance Theremay by the purchaser to satisfy the statute, so long as he con- ance CC a£ tinued to have a right to object, either to the quantum though pur- or t tne quality of the goods, (a) chaser may 2 v to wy have a right But, in a recent case, the court of queen's bench, on to object to . i • • the goods. a full review of all the authorities, decided that there may be an acceptance and receipt within the meaning of the act, without the buyer having examined the goods, or done anything to preclude him from contending that they do not correspond with the contract ; that, in short, the effect of the acceptance required by the statute, is merely to let in parol evidence of the contract, which must otherwise have been proved to be in writing; and not to afford conclusive evidence of the contract having been ful- filled. (K) And this opinion would seem to be confirmed by that of the (e) Hanson ». Armitage, 5 B. & Aid. 434; 19 L. J. Q. B.382; [Frostburg Min- 557. The case of Hart v. Sattley, 3 Camp, ing Co. v. New Eng. Glass Co. 9 Cush. 528, is now overruled; per Lord Camp- 115; Marsh v. Hyde, 3 Gray, 331. But in bell, Meredith v. Meigh, 2 E. & B. 364, Maxwell v. Brown, 39 Maine, 103, Apple- 370. ton J. said : " There must be an acceptance (/) Hunt v. Hecht, 8 Exch. 814 ; [Spen- as well as a delivery. The property of cer v. Hale, 30 Vt. 315.] the goods must vest in the vendee as the (g) PerAlderson B. Norman v. Phillips, absolute owner discharged of all lien, and 14 M. & W. 277, 283 ; Acebal v. Levy, 10 so that he shall be precluded from taking Bing. 376, 384; Kent v. Huskisson, 3 B. any objection to the quantity or quality of & P. 233 ; Howe a. Palmer, 3 B. & Al. the goods sold ; " and he cites Outwater 321 ; Smith v. Surman, 9 B. & C. 561. v. Dodge, 6 Wend. 397, and Shindler u. (h) Morton v. Tibbett, 15 Q. B. 428, Houston,! Comst. 261.] SALE OF GOODS. 563 court of common pleas, in the case of Tomkinson v. Staight ; (A 1 ) where it was held, that there may be a delivery of the goods to the buyer as owner, and an acceptance thereof by him as owner, so as to satisfy the statute, although it may still be open to him to dis- pute the terms of the contract, as alleged by the seller. 6th. The mere delivery of a sample, which is not part of the thing sold, will not take the case out of the statute ; al- Delivery of though, if the sample be delivered and received as part part P of'the° f of the bulk, it then binds the contract, (i) thing sold. So, where goods of the value of 144Z. were made to order, and remained in the possession of the vendor at the request of the ven- dee, with the exception of a small part, which the latter took away, (i 1 ) it was held, that there was no acceptance of the residue within the statute. (Je) But if there be an entire contract for the sale and purchase of goods, whether they be already in esse, or some part - of _ . them has to be manufactured after the order is given, a the purchase , -,. n r, ... . . consists of delivery and acceptance ot part will operate to take the several arti- whole contract out of the statute. (J) And the same rule holds, where there is an entire contract by the vendor to sell goods, and by the vendee to redeliver them to the vendor on the happening of a certain event, (m) But if several lots be knocked down, separately, to a purchaser at an auction, the acceptance of one lot does not constitute an acceptance of the others ; because in law there is a distinct contract as to each lot. (n) Where the contract is to deliver goods in parcels, or to supply a publication in parts at different intervals, at a certain price for each ; although the contract may be void for want of writing as (A 1 ) 17 C. B. 697. goods embraced by the contract of sale, (i) Gardner v. Grout, 2 C. B. N. S. 340 ; although they happen to be scattered in Hinde v. Whitehouse, 7 East, 558 ; Talver different and distinct places ; Shurtleff v. v. West, Holt N. P. K. 178; and seeNich- Willard, 19 Pick. 202 ; Phelps v. Cutler, olson v. Bower, 1 E. & E. 172. 4 Gray, 137 ; even if they are in the hands (i 1 ) [Dole v. Stimpson, 21 Pick. 384 of a person having a lien upon them ; see Legg v. Willard, 17 Pick. 140.] Eegg v. Willard, 17 Pick. 140 ; or the sale (k) Thompson v. Maceroni, 3 B. & C. 1. is by auction; Mills v. Hunt, 17 Wend. (I) Scott v. Eastern Counties Railway 333.] Co. 12 M. & W. 33 ; Elliott v. Thomas, 3 (m) Williams v. Burgess, 10 A. & E. M. & W. 170; Bigg v. Whisking, 14 C. 499. B. 195; [Marsh v. Hyde, 3 Gray, 331; (n) See Roots v. Lord Dormer, 4 B. & Phelps v. Cutler, 4 Gray, 137. A delivery Ad. 77. [See Messer v. Woodman, 22 N. of part for the whole applies to all the H. 172, 176, 177.] 564 SUBJECT-MATTER OF CONTRACTS. regards the executory part of it, yet the prices of the articles actu- ally received are recoverable under a count for goods sold, (o) 7th. In the case of a contract for the manufacture of an article, „ , . . such as a wagon, the fact of the defendant's employing manufac- an( J paying a third person to assist the plaintiff in the work on the premises of the latter, does not amount to an acceptance of the article, it being afterwards completed by the plaintiff, but not received by the defendant, (p) And, lastly, there may be an acceptance sufficient to satisfy the statute, although the vendor may not be able to maintain an action for goods sold and delivered, (g) 4. If there be no note or memorandum in writing, and no ac- Of giving ceptance and receipt of the goods to satisfy the statute, something in then the buyer must " give something in earnest to bind earnest, or in , . . ° ° part pay- the bargain, or in part of payment." And as to this it is held that, to constitute a payment in earnest, or a part payment within the statute, there must be an actual transfer or delivery of the thing or money agreed to be given as earnest or part payment. Therefore, if the purchaser of goods merely draw the edge of a shilling over the hand of the vendor, and return the money into his own pocket, — which in the north of England is called "striking of" a bargain, — the act is not satisfied, (r) And so, where the plaintiff owed the defendant a debt ; and, while it remained due, sold him goods to an amount When set- . ' & ting off a exceeding 10/. ; and part of the bargain was, that the debt due to 111p . . . tpo . 1 the seller is debt due from the plaintiff was to go in part payment by the defendant to him ; but no actual payment of money was made, nor any receipt given by the defendant for the plaintiff's debt : it was held, that there had been no earnest given to bind the bargain within the statute, (s) But if there had been a bargain to sell the goods at a certain price ; and it had been afterwards agreed, that the sum due from the plaintiff was to be wiped off (o) Mavor v. Pyne, 3 Bing. 285. In (q) Per Patteson J. Curtis v. Pugh, 10 these cases, the claim is upon a quantum Q. B. Ill, 114; and see Boulter v. Arnot, meruit, and not upon the void contract. 1 C. & M. 333. Earl of Falmouth v, Thomas, 1 C. & M. (r) Blenkinsop v. Clayton, 7 Taunt. 89, 109. 597. (p) Maberley v. Sheppard, 10 Bing. 99; (s) Walker v. Massey, 16 M. & W. 302. and see Laidlerw. Burlinson, 2 M. & W. 602. sale; of goods. 565 from the amount of that price ; this might have been equivalent to payment, and the statute might have heen satisfied, without any money having passed in fact, (t) So the delivery of a bill of exchange or promissory note, on ac- count or in payment of the price of goods sold under a p a y me nt by parol contract, will take the case out of the statute ; such ^|[^£ e ex " instrument amounting to payment, till dishonored. («) And it is said that, after earnest given upon the sale of goods, the vendor cannot sell them to another, without a de- G ivirl g earn _ fault in the vendee, (as) And hence it would appear, e *' doe ^ not that although earnest given upon a sale of goods does property. not alter the property therein, still it binds the bargain, and enti- tles the vendee to demand the goods, on payment or tender of the price, (y) 3. Fraudulent Sales. 1. We shall hereafter have occasion to consider the general effect of fraud upon contracts, as well where both par- ... i ■ i i Property ties contemplate a deceit upon a third person, as where does not pass one party to a contract induces the other to enter into eie 7 ' it by means of fraudulent misrepresentation or concealment. And, as to fraudulent sales, the general rule is, that a vendee does not acquire an absolute property in, or title to goods, so as to be able to retain them against the vendor, if he, the vendee, ob- tained such goods by fraud practised on the vendor under color of a purchase, whether on credit or otherwise, (z) Thus, if a pur- chaser at an auction, by unfair conduct deter other persons from bidding, and cause the goods to be knocked down to himself, he does not acquire any property therein. (a) So, if the vendee purchase the goods with the preconceived design of not paying for them, such sale does not pass the property therein. (6) And it would appear that the resale of the goods by (t) Per Parke B. lb. 305. Owen, 5 T. R. 409, 410 ; Com. Dig. Biens («) Griffiths v. Owen, 13 M. & W. 58, (D.), 3 ; BI. Com. 447, 448. 64. [See Combs v. Bateman, 10 Barb. (z) Per Cur. Load v. Green, 15 M. &W. 573.] 216, 221 ; Fuller v. Abrahams, 3 B. & B. (x) Per Holt C. J. Langford u. Admin- 116; Anon. 6 Mod. 114; [Hodgedon v. istratrix of Tyler, 1 Salk. 113 ; Bull. N. Hubbard, 18 Vt. 504.] P. 50 ; 6 Mod. 162 ; Knight o. Hopper, (a) Puller v. Abrahams, 3 B. & B. 116. Skin. 647; per Lord Ellenborough, Hinde (6) Load v. Green, 15 M. & W. 216; y. Whitehouse, 7 East, 558,671. [See Neil [Cary v. Hotailing, 1 Hill, 311; Ash v. v. Cheves, 1 Bailey, 537 ; 2 Kent, 495.] Putnam, 1 Hill, 302 ; Bigelow v. Heaton, (y) lb.; sed vide per Buller J. Back v. 6 Hill, 44; Thompson u. Bose, 16 Conn. 566 SUBJECT-MATTER OF CONTRACTS. the vendee, at reduced prices, immediately after they get into his possession, will afford evidence of such fraudulent intention, (c) So it has been held, that the vendor may treat the sale as a nullity, if the vendee, instead of paying ready money according to the contract, deliver to him a check which is dishonored, and the vendee had at the time no reasonable ground to suppose that it would be honored. (d) [So if the purchaser makes false representations of his ability to pay, of his property, or of his credit, to the injury of the vendor, the sale is voidable, and no valid title passes as between the parties to the contract. But the mere insolvency of the purchaser and his inability to pay for the goods when purchased, even though well known to himself, will not avoid the sale, if no false statements or tricks are employed to obtain the goods.] (d 1 ) But in cases like the above, the sale is not absolutely void ; (JF) Butnotabso- anc ^ accordingly, if the seller do not elect to treat it as luteij- void, yoifj^ before the buyer has resold the goods to an inno- cent vendee, the property therein will pass to that vendee, (e) 71 ; Redington v. Roberts, 25 Vt. 694, 695; Nichols u. Pinner, 18 N. Y. 295; 23 N. Y. 261 ; Dow v. Sanborn, 3 Allen, 181 ; Wiggin v. Day, 9 Gray, 97 ; Henne- quin v. Naylor, 24 N. Y. 139 ; Kline v. Baker, 99 Mass. 254. But in Smith v. Smith, 21 Penn. St. 367, it was held, that a sale will not be set aside as fraudulent, simply because the buyer was at the time un- able to make the payment agreed upon, and knew his inability, and did not intend to pay. No man is under obligation to make known his circumstances when he is buy- ing goods. So in Backentoss v. Speicher, 31 Penn. St. 324. To avoid the sale in such cases it is not sufficient that the purchaser did not intend to pay for the goods at the time agreed upon. He must, at the time of purchase, have intended never to pay for them. Buckley v. Artcher, 21 Barb. 585 ; Bidault a. Wales, 20 Missou. 546 ; Mitchell u. Worden, 20 Barb. 253. See Story Sales, § 176.] (c) Earl of Bristol v. Wilsmore, 1 B. & C. 514 ; Stephenson i>. Hart, 4 Bing. 476 ; Perguson v. Carrington, 9 B. & C. 59 ; S. C. 3 C. & P. 457. According to the report of Irving v. Motley, in 7 Bing. 543, 551, Tindal C. J. seems to have been o opinion that the vendee's consciousness, at the time of the sale of his inability to pay for the goods, is not such a fraud as will vacate the contract. But this dictum is not mentioned in 5 M. & P. 393. (d) Hawse v. Crowe, R. & M. 414 ; cor. Abbott C. J. (d 1 ) [Lloyd v. Brewster, 4 Paige, 537 ; Cary v. Hotailing, 1 Hill, 311 ; Andrews. Dieterich, 14 Wend. 31 ; Cross v. Peters, 1 Greenl. 378 ; Powell a. Bradlee, 9 Gill & J. 220 ; Redington ;;. Roberts, 25 Vt. 694, 695 ; Rowley v. Bigelow, 12 Pick. 307 ; Hodgedon v. Hubbard, 18 Vt. 504 ; Henne- quin v. Naylor, 24 N. Y. 139 ; Garbutt v. Bank of Prairie &c. 22 Wise. 384 ; Biggs v. Barry, 2 Curtis, 259 ; Nichols v. Pinner, 18 N. Y. 295.] (d 2 ) [Titcomb v. Wood, 38 Vt. 561.] (e) Stevenson v. Newnham, 13 C. B. 285, 303 ; White v. Garden, 10 C. B. 919 ; 20 L. J. C. P. 166 ; per Parke B. Powell o. Hoyland, 6 Exch. 67, 72 ; Load v. Green, 15 M. & W. 216, 219 ; per Tindal C. J. Irving v. Motley, 7 Bing. 543, 551 ; [2 Sugden V. & P. (8th Am. ed.) 720, and note (q) ; Bean v. Smith, 2 Mason, 252 ; SALE OF GOODS. 567 And the result will be the same if, before the vendor interferes the vendee pledge the goods for a bond fide advance. (/) So, where goods are transferred by way of fraudulent prefer- ence, the effect of the bankruptcy of the transfer is, not i ,i , . . , Sale by way at once to vest the property therein in the trustee or as- of fraudulent signees ; but such transfer vests the property in the P re£erence ' transferee, subject to be divested by the trustee or assignees at his or their election ; and the title of the transferee is perfect, except in so far as it is avoided by the trustee or assignees. (<7) But by the stat. 7 & 8 Geo. 4, c. 29, s. 57, the owner of goods, obtained from him by false and fraudulent pretences, sale of goods with intent to defraud him, is entitled to restitution, not- faise'm-e-^ withstanding any intermediate bond fide sale, provided teaces - such owner prosecute the offender to conviction. (Ji) The case of Noble v. Adams (i) is deserving of attention, as illustrating the degree and nature of the fraud which _, •11 • , i .-ii o What degree will entitle a vendor to avoid a sale. A., of London, of fraud will being in danger of insolvency, went to Glasgow, and - Hall v. Hinks, 21 Md. 406 ; Oakes v. Tur- quand, L. R. 2 H. L. 325 ; Dows u. Greene, 32 Barb. 490 ; Sinclair v. Healy, 40 Penn. St. 417 ; Pease v. Gloahee, L. R. 1 P. C. 220 ; 3 Moore P. C. (N. S.) 556 ; White v. Garden, 10 C. B. 919 ; Kings- ford u. Merry, 11 Exch. 577, 579; Hard- man v. Booth, 1 H. & C. 803. An in- nocent purchaser of goods from a fraudu- lent vendee in possession thereof, obtains a good title against the creditors of the fraudulent vendor. Neal v. Williams, 18 Maine, 391 ; Hoffman v. Noble, 6 Met. 68 ; Bradley v. Obear, 10 N. H. 477 ; Ash v, Putnam, 1 Hill, 302, 306, 307 ; Rowley v. Bigelow, 12 Pick. 307 ; Somes u. Brewer, 2 Pick. 184; Anderson v. Roberts, 18 John. 515 ; Johnson v. Peck, 1 Woodb. & M. 324 ; Mowrey v. Walsh, 8 Cowen, 238 ; George v. Kimball, 24 Pick. 241 ; Wood v. Mann, 1 Sumner, 506 ; Ditton v. Randall, 33 Maine, 202; Shearer v. Barrett, Hill & Denio, 70; Buffington v. Gerrish, 15 Mass. 156; Root v. French, 13 Wend. 570, 572. A sale by a vendor, who in- tends thereby to defraud his creditors, to a purchaser who buys bond fide and has no knowledge of such fraudulent intent, is valid and binding ; and the purchaser will hold the property purged of the fraud, and he may make a valid sale even to a person who had knowledge of the fraudulent pur- pose of the original vendor. This principle is important to a bond fide purchaser ; otherwise, though he hold a perfect title in himself, he might meet great difficulty in finding a purchaser, after the fraud in the original transaction had become generally known. Brown Sales, § 599, Trull v. Bigelow, 16 Mass. 406; Grout c. Hill, 4 Gray, 361, 368, 369.] (/) Kingsfordw. Merry, 11 Exch. 577; S. C. (in error), 1 H. & N. 503. (g) See 32 & 33 Vict. c. 71, s. 92 ; Ste- venson v. Newnham (in Cam. Scac), 13 C. B. 285, 303 ; Newnham v. Stevenson, 10 C. B. 713, 723 ; 20 L. J. C. P. Ill, 113. The mere commencement of an action of trover by the assignees is not, of itself, a sufficient election. lb. (h) See Scattergood v. Sylvester, 15 Q. B. 506 ; Peer v. Humphrey, 2 A. & E. 495, 499, n. (6); Parker v. Patrick, 5 T. R. 175 ; Ferguson v. Carrington, 3 C. & P. 458, and note ; Gladstone v. Hadwen, 1 M. & S. 517 ; Taylor v. Plumer, 3 M. & S. 562. (i) 7 Taunt. 59. 568 SUBJECT-MATTER OF CONTRACTS. obtained goods from B., for which he paid by a bill on a house in London (0. & Co.), which he knew to be insolvent. The goods were shipped at Leith, — the invoice and receipt from the ship- owners being made out to A., — and were delivered to C, a wharfinger in London, who afterwards received notice to hold them for B. A. became bankrupt ; and in an action of trover by A. against C, for the benefit of the assignees, it was held that there was not such conclusive evidence of fraud on the part of A. as to avoid the contract. Gibbs C. J. delivered the opinion of the court as follows : " The court is of opinion that there ought to be a new trial in this case ; because, without defining exactly what may or may not amount to such a fraud as would render the sale in question absolutely void, we are of opinion that the evidence, as it stands, does not show any conduct on the part of the plaintiffs, suf- ficient to convince us that the transaction was void. It was proved that he knew that Outhwaite's bill was worth nothing, and that he considered his own credit in England as nearly gone ; that he went to Glasgow, intending to purchase goods there from persons unac- quainted with his credit, or with the character of the bills ; but by what means he prevailed on Cross & Co. to sell him the goods is not in proof; and unless his representations amounted to the offence of obtaining goods under false pretences, (&) we cannot take upon ourselves to say that the contract was altogether void. Without, therefore, saying what proof the case may be capable of, seeing that there is a strong presumption of fraud, we grant the new trial only on the ground that the proof, as it stands, is not sufficient to fix fraud to that extent on the plaintiff." (k 1 ) In Irving v. Motley (T) which was trover for wool, which the plaintiffs alleged that the defendants had obtained by fraud, it ap- peared that it had been purchased of the plaintiffs by one D., as agent for Messrs. W. & Co., and that they pledged it two days after- wards to the defendants, for an advance made by them to W. & Co., through the intervention of D., who acted as the agent of the de- (k) In Irving v. Motley, 7 Bing. 543, fraud in fact on the part of the purchaser 552, Parke J. said, that in Noble v. in respect to the purchase, the vendor may Adams, it was not meant to be laid down elect, either to affirm the sale, and sue for by Gibbs C. J. that no other species of the price, or to treat the sale as void, and fraud than the obtaining goods by false follow the goods or proceeds, even into the pretences would vacate the bargain, and hands of a third person, who received them entitle the vendor to maintain trover. without paying any new consideration. (it 1 ) [See Conyers v. Ennis, 2 Mason, Lloyd v. Brewster, 4 Paige, 537.] 236 ; Ludin v. Marie, 6 Wend. 77 ; Rowley (/) 7 Bing. 543. v. Bigelow, 12 Pick. 307. But if there be SALE OF GOODS. 569 f'endants as well as of W. & Co. The plaintiffs, in order to show that W. & Co. had obtained the wool without intending to pay for it, — they being insolvent at the time of the purchase, a fact of which D. was aware, — offered certain contracts in evidence signed by D. ; and, his handwriting to them having been proved, it was held that such contracts were admissible, without calling D. as a witness. And — the jury having found that the transaction be- tween D. and W. & Co. was fraudulent, but that the defendants were not cognizant of the fraud, and that D. was their agent as well as the agent of W. & Co. — the plaintiffs obtained a verdict ; and the court refused to grant a new trial, as the defendants were liable for the fraudulent acts and misconduct of their own agent. Where goods are obtained by means of a fraudulent purchase, the vendor has a right to disaffirm the contract, so as to Kemedie3 of revest the property in himself; and to recover the vendor in . . . P . such cases. value of the goods in an action of tort against the ven- dee, (m) But he is not confined to this remedy ; for he may at his election treat the transaction as a contract and sue thereon, (n) So it is said, that a party who has lost goods, may sue the finder either in tort for their value, or in contract for their price, (o) So, an action lies to recover the price of goods which the defendant, by fraud, procured the plaintiff to sell to an insolvent, and then got into his own possession. For he cannot be permitted to account for his possession of the goods, by setting up the sale, because his own fraud procured it ; and the mere possession of the plaintiff's goods, unaccounted for, raises a promise to pay. (p) And where goods were supplied to a minor, upon a fraudulent representation by his father, that he was about to relinquish a business in favor of his son ; it was held, that although the credit was given to the son, yet the fact of the father dealing with the proceeds, made him responsible in an action for goods sold and delivered, (g) But in such cases the vendor must either affirm or disaffirm the (m) Per Car. Load v. Green, 15 M. & (p) Hill v. Perrott, 3 Taunt. 274 ; and W. 216, 221. And see Martin v. Pewtress, see Lee v. Shore, 1 B. & C. 94. 4 Burr, 2477. (q) Biddle u. Levy, 1 Stark. 20. But (n) Per Parke B. Load v. Green, 15 M. in some cases, the proper remedy is by a & W. 216, 219. cross action for the deceit. See Thoinp- (o) Per Chambre J. Bennett o. Fran- son v. Bond, 1 Camp. 4, and Bead v. cis, 4 Esp. 28, 30. It is to be observed, Hutchinson, 3 lb. 252. Sed qu. as to the however, that the defendant in this case latter case; and see Popley v. Ashley, 6 had paid money into court on the com- Mod. 147. mon counts. 570 SUBJECT-MATTER OF CONTRACTS. transaction as a whole. And therefore, where goods are fraudu- ently procured to be sold on credit, the vendor cannot sue for the price of the goods before the period of credit has expired ; but he must sue in tort for the value of the goods ; for, by declaring for their price, he affirms the contract ; (r) and where there is an ex- press contract between two parties, the law, will not imply any other, (s) 2. It is enacted, by the stat. 13 Eliz. c. 5, which appears to be What sales declaratory of the common law, (£) that every gift, ered fraudu- grant, bargain, and conveyance of goods and chattels, or underi3 V0Kl an y P r °fit thereof, by writing or otherwise, with intent Eliz. c. 5. to delay, hinder, or defraud (ii) creditors, and others, of their lawful actions, debts, damages, &c, shall be utterly void against the creditor or person having the right to such actions, debts, &c. But the act is not to extend to any estate or interest in goods, &c, on good consideration, and bond fide, lawfully conveyed to any person not having at the time notice of the fraud, (w 1 ) Twyne's case (x) is the leading authority upon the construction Twyne's °f this statute. Pierce was indebted to Twyne in 400Z., case ' and to C. in 200?. Pending an action by C. to recover (r) Strutt-v. Smith, 1 Cr., M. & R. made on a valuable consideration, is good 312 ; Ferguson v. Carrington, 9 B. & C. under this statute, unless it was made with 59 ; overruling De Symons v. Minchwich, an express intent to defraud. See Jarman 1 Esp. 430; [Allen v. Ford, 19 Pick. 217.] o. Wolloton, 3 T. R. 618; Haselinton v. (s) PerParkeB. Bradbury v. Anderton, Gill, lb. 620, u. (a) ; 3 Dougl. 415; Bul- 1 Cr., M. & R. 486, 490 ; and see Selway mer v. Hunter, L. R. 8 Eq. 46. But v. Fogg, 5 M. & W. 83. [As a general where a settlement is voluntary, the intent rule, where there is a special contract, it to defraud may be inferred ; as, for exam- must be observed, and a party cannot re- pie, where a man owing debts, makes a sort to an implied one. But fraud and post-nuptial settlement, which subtracts imposition constitute an exception to this from the property which is the proper fund rule, and the party defrauded has a right for the payment of those debts, an amount to rescind the special contract, and he is without which they cannot be paid. See then remitted to the implied one. Per Freeman v. Pope, L. Rep. 9 Eq. 206 ; 5 Wells J. in Jenks v. Mathews, 31 Maine, Ch. Ap. 538 ; Ware v. Gardner, L. Rep. 318, 320. And a promise to pay a debt 7 Eq. 317. As to the avoidance of volnn- implied by law remains in force, although tary settlements, in cases of bankruptcy, through the fraud or imposition of the see 32 & 33 Vict. c. 71, s. 91. promisor the credit was originally given to f" 1 ) [Damon b. Bryant, 2 Pick. 411; a third person. Downing v. Freeman, 13 Lowry v. Pinson, 2 Bailey, 324 ; Jackson v. Maine, 90.] Myers, 18 John. 425 ; ante, 566, note (e).] (t) See per Lord Mansfield, Cadogan u, (x) 3 Co. 80; S. C. Moore, 638; 1 Kennett, Cowp. 434. Smith L. C. 1 ; Shep. Touch. 66. When (u) An antenuptial settlement, being a fieri facias, delivered for the evident SALE OF GOODS. 571 his demand, Pierce, being possessed of goods of the value of 300Z., secretly, by deed, conveyed all his goods whatsoever to Twyne in satisfaction of his debt. Pierce, however, continued in possession, and sold some of the goods, notwithstanding the deed. He sheared some sheep, part of the effects, and marked them with his own mark. C. having obtained judgment, took the goods, which re- mained in Pierce's possession, in execution ; and the court held, that he was justified in so doing, because the alienation to Twyne, though by deed, and for a valuable consideration, was fraudulent and void against Pierce's judgment and execution. The reasons for the decision are stated to have been, 1st, " That the gift had the signs and marks of fraud, because the gift was general, without exception of his apparel, or anything of necessity ; for it is com- monly said, quod dolosus versatur in generalibus ; 2dly, The donor continued in possession and used them as his own, and by reason thereof he traded and trafficked with others, and defrauded and deceived them ; (y) 3dly. It was made in secret, et dona clandes- tina sunt semper suspiciosa ; 4thly, It was made pending the writ ; 5thly, Here was a trust between the parties, for the donor pos- sessed all, and used them as his proper goods, and fraud is always apparelled and clad with a trust, and a trust is the cover of fraud ; 6thly, The deed contains that the gift was made honestly, truly, and bond fide ; et clausula inconsuetce semper inducunt suspicionem." From this case it appears that there are certain circumstances which, in transactions of this kind, raise a presumption circum . of fraud. But still it must be borne in mind, that the stances from . . which fraud existence of these circumstances in any particular m- may be in- stance is only evidence of fraud, and does not, in point of law, render the transaction fraudulent and void within the stat- ute. purpose of protecting the goods against v. Williams, 1 Pick.[288 ; Homes v. Crane, other executions, and not executed with 2 Pick. 607 ; Wheeler v. Train, 3 Pick, due diligence, shall be deemed fraudulent 255 ; Ward v. Sumner, 5 Pick. 59 ; Shum- and void, see Tidd, 9th ed. 1005 ; Lovick way v. Butter, 7 Pick. 56 ; S. C. 8 Pick. v. Crowder, 8 B. & C. 132 ; Crowder v . 443; Gould v. Ward, 4 Pick. 104 i Ward Long, lb. 598. v. Gould, 5 Pick. 291 ; Plagg v. Dryden, (y) See per Lord Mansfield, Worsley 7 Pick. 52; Adams v. Wheeler, 10 Pick. v. Demattos, 1 Burr. 482. 199 ; Marden v. Babcock, 2 Met. 99. The (y 1 ) [In Massachusetts, it is held, that same doctrine has been adopted in the possession of goods by the vendor after a State of Maine, Ulmer v. Hills, 8 Greenl. sale of them, is only prima facie evidence 326 ; Reed v. Jewett, 5 Greenl. 96 ; Hol- of fraud, and may be explained by proof, brook v. Baker, 5 Greenl. 309 ; Cutter v. Brooks v. Powers, 15 Mass. 244; Bartlett Copeland, 18 Maine, 127. So in New 572 SUBJECT-MATTER OF CONTRACTS. The case of Edwards v. Harben, (2) indeed, would seem to favor the principle, that the mere fact of the assignor continuing Forkner v. Stuart, 6 Grattan, 197; Card v. Miller, 7 Grattan, 185. See, also, Bay- lor v. Smithers, 1 Litt. 12; Hundley v. Webb, 3 J. J. Marsh. 643 ; Field v. Simco, 2 Eng. 269 ; Maney a. Killough, 7 Yer. 440 ; Mitchell u. Beal, 8 Yer. 142 ; Sher- ron v. Humphreys, 1 Green, 217. A con- trary doctrine seems to have received the approbation of the supreme court of the United States, in Hamilton v. Russell, 1 Cranch, 309 ; and of United States cir- cuit courts of Pennsylvania and Massa- chusetts, in the United States v. Conyng- ham, 4 Dallas, 358 ; Phettiplace u. Sales, 4 Mason, 321, 322. But see Conrad v. Atlantic Ins. Co. 1 Peters (U. S.), 449 ; De Wolf v. Harris, 4 Mason, 515. In Penn- sylvania : Born v. Shaw, 29 Penn. St. 288 ; Dawes u. Cope, 4 Binn. 258 ; Babb u. Clemson, 10 Serg. & R. 419; Shawn. Levy, 1 7 Serg. & R. 99 ; Homer v. Gees- man, 17 Serg. & R. 251 ; Levy v. Wallis, 4 Dal. 167; Hoofsmith v. Cope, 6 Whart. 53. And in Vermont : Boardman v. Kee- ler, 1 Aiken, 158; Mott v. M'Niel, 1 lb. 162; Weeks v. Wood, 2 lb. 64 ; Fletcher v. Howard, 2 lb. 115; Beattie u. Robin, lb. 181. In Vermont, it is held that there must be a substantial and visible change of possession in order to perfect the sale as against the creditors of the vendor. Hutch- ins v. Marshall, 10 L. R. (N. S.) 55,56 ; Judd v. Langdon, 5 Vt. 231 ; Wilson v. Hooper, 12 Vt. 653 ; Parker v. Kendrick, 29 Vt. 388. See Harding v. Jones, 4 Vt. 462 ; Kennedy v. Ross, 2 Rep. Con. Ct. 125; Hudnal v. Wilder, 4 McCord, 294; Brummel v. Stockton, 3 Dana, 134 ; Laughlin v. Ferguson, 6 lb. 117 ; McBride u. McClelland, 6 Watts & S. 94 ; Farns- worth v. Shepard, 6 Vt. 521 ; Wilson v. Hooper, 12 Vt. 653. In Illinois, Thorn- ton v. Davenport, 1 Scam. 296. In Cal- ifornia, Chevey v. Palmer, 6 Cal. 119. In Florida, Gibson u. Love, 4 Florida, 217. In Iowa, Prather v. Parker, 24 Iowa, 26. As to Missouri, see King v. Bailey, 6 Mis- Hampshire : Lewis v. Whittemore, 5 N. H. 364; Haven v. Low, 2 N. H. 13 ; Co- burn c. Pickering, 3 N. H. 415 ; Clark v. Morse, 10 N. H. 239 ; Kendall v. Fitts, 22 N. H. 1 ; Johnson v. Willey, 46 N. H. 75. So in Connecticut, with some limitations : Ingraham v. Wheeler, 6 Conn. 277 ; Tal- cot u. Wilcox, 9 Conn. 134; Swift v. Thompson, 9 Conn. 63 ; Toby v. Reed, 9 Conn. 216 ; Mills v. Camp, 14 Conn. 219 ; Osborne r. Fuller, 14 Conn. 529 ; Kirtland I,. Snow, 20 Conn. 23, 30 ; Lake v. Morris, 30 Conn. 201 ; Webster v. Peck, 31 Conn. 495. So in New York : Bissell v. Hop- kins, 3 Cowen, 166. See, also, Divver v. M'Laughlin, 2 Wend. 599 ; Jackson u. Timmerman, 7 Wend. 436 ; Wilcox v. Wood, 9 Wend. 346. So in North Caro- lina : Howell v. Elliott, 1 Badg. & Dev. 76 ; Vick v. Keys, 2 Hayw. 126 ; Falk- ner v. Perkins, 2 Hayw. 224 ; Smith v. Niel, 1 Hawks, 341 ; Trotter v. Howard, 1 Hawks, 320. So in South Carolina: Terry v. Belcher, 1 Bailey, 568 ; Smith u. Henry, 2 Bailey, 118. So of New Jersey : Sterling v. Van Cleve, 7 Halst. 285 ; Mount v. Hendricks, 2 South. 738 ; Cumberland Bank v. Hann, 4 Harr. (N. J.) 166. In Alabama, Henderson v. Mabry 13 Ala. 713 ; Beall v. Williamson, 19 Ala. 55. In Georgia, Peck u. Land, 2 Kelly, 1 ; Goodwyn v. Goodwyn, 20 Geo. 600 ; Fleming v. Townsend, 6 Geo. 103. In Mississippi, Comstock v. Ray ford, 12 Sm. & M. 369 ; Foster v. Pugh, 12 Sm. & M. 416. In Texas, Earle v. Thomas, 14 Texas, 583 ; McQuinney v. Hitchcock, 8 Texas, 33. In Wisconsin, Cotton v. Marsh, 3 Wise. 221. In Arkansas, Field v. Simco, 2 Eng. 269. The court of Ohio seems to approve of the same doctrine, in Barr v. Hatch, 3 Ham. 529. So the court of Tennessee : Cullen v. Thompson, 3 Yer. 475 ; Maney v. Killough, 7 Yer. 440 ; Wiley v. Lashley, 8 Humph. 717. So of Virginia : Davis v. Turner, 4 Grattan, 422 ; Born v. Shaw, 29 Penn. St. 292 ; (z) 2 T. R. 587. SALE OF GOODS. 573 in possession of the goods, after the assignment, will, of itself, render such assignment void. But the rule established by more recent cases is, that the fact of the assignor Continuing in possession is not conclu- sive evidence of fraud. or vendor continuing in possession of the goods without regard to the transfer, and with the assent of the assignee, although strong, is not conclusive evidence of fraud ; it being for the jury to say, upon the whole case, whether the continuance in possession was really fraudulent or not. (a) So it is now settled, that if the omission to deliver possession of the goods to the as- signee, be in consequence of, and consistent with, the terms of the bill of sale, — as if it be agreed, that the assignee shall not be enti- tled to take possession, unless default be made by the assignor in the performance of a specified condition, (a 1 ) the presumption of sou. 575 ; Foster v. Wallace, 2 Missou. 281. In Jackson v. Timmerman, 7 Wend. 436, it is held, that there is no such thing as fraud in aw, as distinguished from fraud in fact ; what was formerly consid- ered as fraud in law, or conclusive evi- dence of fraud, and to be so pronounced by the court, is now held to be but prima facie evidence, to be submitted to, and passed upon, by the jury. See, also, Sew- ard v. Jackson, 8 Cowen, 448, 454 ; Jack- son v. Peck. 4 Wend. 303 ; Hall v. Tuttle, 8 Wend. 375. The rule in Twyne's case has not been extended to sales on execu- tion, which in their nature are public and notorious, even in those courts, where it has been applied to other sales. Garland u. Chambers, 11 Sm. & M. 337 ; Foster v. Pugh, 12 Sm. & M. 416 ; Simerson v. Branch Bank, 12 Ala. 205; Abney v. Kingsland, 10 Ala. 355.] (a) Per Tindal C. J. Lindon v. Sharp, 6 M. & G. 895, 898. (a 1 ) [The possession of a personal chat- tel by the mortgagor, is not inconsistent with the mortgage, and furnishes of itself no evidence of fraud. Holbrook v. Baker, 5 Greenl. 309 ; Ash e. Savage, 5 N. H. 545 ; Lewis v. Stevenson, 2 Hall, 63 ; Bis- sell v. Hopkins, 3 Cowen, 166; Barrow v. Paxton, 5 John. 258 ; Cortelyou v. Lan- sing, 2 Caines Cas. in Err. 206 ; Baylor v. Smithers, I Litt. Ill ; Adams v. Wheeler, 10 Pick. 169; Ward v. Sumner, 5 Pick. 59 ; Glover v. Austin, 6 Pick. 220, 221 ; Flagg v. Dryden, 7 Pick. 52 ; Haskell v. Greely, 3 Greenl. 425 ; Haven o. Low, 2 N. H. 13 ; Dawes v. Cope, 4 Binn. 258 ; D'Wolf v. Harris, 4 Mason, 515 ; Patten u. Smith, 4 Conn. 450 ; Clayborne v. Hill, 1 Wash. 177; Croft o. Townsend, 3 De- saus. 229. But see Clow v. Woods, 2 Serg. & R. 278 ; Smith v. Acker, 23 Wend. 653. It is now provided by statute in Massachusetts, that no mortgage of per- sonal property shall be valid against any other person than the parties thereto, un- less possession of the mortgaged property be taken and kept by the mortgagee, or unless the mortgage be recorded by the clerk of the town where the mortgagor shall reside, at the time of making the same. St. 1832, t. 157, § 1 ; Rev. St. c. 74, § 5. A similar provision was made in North Carolina, in 1830. The legislature of New York also has taken this subject into consideration, and made provision for it. See 2 Rev. Laws, 136, § 5, 6, 7 ; lb. 137, § 4, 5. In 1832, a similar provis- ion to that in Massachusetts was made in New Hampshire. In Kentucky, in' 1831, a statute was passed regulating mortgages of personal property ; and in Georgia in 1827. See 2 Kent, 530, n. (a). As to mortgages of stock in trade or other goods, with power in the mortgagor to dispose of the goods or to use them, &c. see Briggs v. Parkman, 2 Met. 258 ; Jones 574 SUBJECT-MATTER OF CONTRACTS. fraud does not arise. (5) And so it would seem, that if the bill of sale be really intended by the parties to operate, and to give the vendee the power of taking possession, it is good, although it be not acted on by his taking possession, (c) So it appears, that where the transfer is founded on a good con- sideration, and there was no intention in fact to defraud creditors, and the transaction was a matter of publicity or notoriety; the notoriety of the transfer is the question on which its validity or invalidity depends ; for, if the assignment was notorious, fraud will not be presumed from the mere omission to take possession. (oT) Nor does the doctrine of presumed fraud apply, where the party in possession was not the original owner of the goods, and, in feet, never acquired any property therein, and had nothing more, ah initio, than the mere possession of the goods by the consent of the true owner ; since it is only under the provisions of the bankrupt acts, (e) that the real proprietor of goods, who suffers another to have the apparent ownership, forfeits his right for the benefit of the creditors of the party whom he has allowed to be in possession. If, therefore, A. were to buy goods, and lend them to B., the want of possession in A. would not be fraudulent ; for it has never been held that a man may not give the possession of his goods to another. (/) So, where the plaintiff, having purchased a public- house for which he could not get a license, put B., an insolvent person, into the house as his servant, and supplied him with money to pay for the license, which was granted to B. ; it was held, by the majority of the judges of the common pleas, that the sheriff was not authorized to take the goods in the house under an execu- tion against B. (#) And so a person may make a bond fide pur- chase of goods, which are in the possession of another, for the v. Huggeford, 3 Met. 515; Robbins v. (d) Armstrong v. Baldock, Gow, 33; Parker, 3 Met. 117 ; Shurtleff v. Willard, Woodham u. Baldock, lb. 35, note; S. C. 19 Pick. 202.] 3 Moore, 11 ; Hoffman v. Pitt, 5 Esp. 25 ; (6) See 1 Smith L. C. 11 ; per Buller J. Reed v. Blades, 5 Taunt. 212 ; Latimer Edwards v. Harben, 2 T. R. 587, 595 ; o. Batson, 4 B. & C. 652. Haselinton v. Gill, 3 T. R. 620, note ; per (e) See 32 & 33 Vict. c. 71, s. 15, sub. Dallas C. J. Armstrong v. Baldock, Gow, sect. 5 ; 12 & 13 Vict. c. 106, s. 125 ; 35 ; and particularly Martindale v. Booth, Bull. N. P. 258 ; Meggott v. Mills, 1 Ld. 3 B. & Ad. 498 ; Eastwood v. Brown, R. Raym. 286 ; Kidd v. Rawlinson, 2 B. & & M. 312. P. 60. (c) Eveleigh v. Purssord, 2 Moo. & Rob. (/) See per Lawrence J. Dawson v 539; [Packard v. Dunsmore, 11 Cush. Wood, 3 Taunt. 256, 260. 282 ; Phelps v. Cutler, 4 Gray, 137. But (g) Dawson v. Wood, 3 Taunt. 256. see Packard v. Wood, 4 Gray, 307.] SALE OF GOODS. 575 accommodation of the latter, and for the purpose of continuing them in the same possession. (K) We must also remember that, by the express words of the stat- ute, the fraudulent transfer is avoided, only " as against „ ... , . , . . .... . Such a trans- tnat person, Ins heirs, etc., who might be in anywise ferisgoodas disturbed, hindered, delayed, or defrauded," thereby, parties'them- Such a transfer is therefore good as between the parties selves ; thereto, (i) And even if there were no consideration, yet if the transfer -were by deed, it would be binding between them as a gift by deed, although no possession were given : and if the transfer were without consideration, and possession were delivered, then the assignment, though not by deed, would be good as an executed gift. (A) Such a transfer, moreover, is good, not only as be- or as between tween the parties thereto, but as between either party jjjjj}" party and a stranger. (I) stranger. So, if the transferee assign the goods bond fide, this will confer a good title on the assignee, (ni) So a sale of property for good consideration, (n) or a mortgage of personal chattels for money actually lent, (o) is not, s a i e W nh i n - either at common law or under the statute of Elizabeth, tent t0 ;. defeat ' execution fraudulent and void, merely because it is made with the DOt void - intention to defeat the expected execution of a judgment creditor. Thus, where A., being indebted to B. and C, after being sued to execution by B., went to C. and voluntarily gave him a warrant of attorney to confess judgment ; and judgment was accordingly en- tered up, and execution levied on such warrant of attorney, on the same day on which B. would have been entitled to execution, and on which day he had threatened to sue it out ; the preference so given by A. to C. was held not to be unlawful or fraudulent, within the statute of Elizabeth, (p) And where a debtor, — in expecta- (h) Per Lord Ellenborough, Leonard 311;] and see White a. Morris, 11 C. B. o. Baker, 1 M. & S. 251, 254. 1015. (i) Bessey v. Windham, 6 Q. B. 166. (m) Morewoodv. South Yorkshire Rail- (&) Steel v. Brown, 1 Taunt. 381 ; way Co. 3 H. & N. 799 ; ante, 566, note Baker v. Lloyd, Bull. N. P. 258; Hawes (c). v. Leader, Cro. Jac. 270 ; S. C. Yely. 196 ; (n) Wood v. Dixie, 7 Q. B. 892 ; Ev- Robinson v. Macdonnell, 2 B. & Aid. 134 ; eleigh v. Purssord, 2 Moo. & Bob. 539 ; Doe v. Roberts, lb. 367 ; Deady v. Harri- Riches v. Evans, 9 C. & P. 640 ; Bentliff eon, 1 Stark. 60. _ v. Garnett, 1 C. & K. 326. (I) Bessey v. Windham, 6 Q. B. 166. (o) Darvill v. Terry, 6 H. & N. 807. [See Packard v. Wood, 4 Gray, 307, 310, (p) Holbird v. Anderson, 5 T. R. 235. 576 SUBJECT-MATTER OF CONTRACTS. tion that a writ of sequestration would be issued against him, for non-payment of a sum of money ordered to be paid by him into the court of chancery, — executed a mortgage which vested all his property in trustees for the benefit of five of his creditors ; and the mortgage deed contained a proviso, that the debtor should remain in possession of the mortgaged property for six months, but so as not to let in any execution or sequestration ; and that in case any such should be enforced or attempted to be enforced, his possession should cease ; and a writ of sequestration was afterwards issued ; it was held that this deed, being bond fide, and not a mere cloak for retaining a benefit to the grantor, was good under the statute of Elizabeth. ( on the trade, the moneys to arise therefrom amongst themselves and (q) Alton v. Harrison, L. R. 4 Ch. Ap. (s) Estwick v. Caillaud, 5 T. R. 420. 622. [See 2 Kent, 532, 536, and notes.] (r) Pickstock v. Lister, 3 M. & S. 371 ; (t) Oswald v. Thompson, 2 Exch. 215; The King v. "Watson, 3 Price, 6. See, also, decided on the 6 Geo. 4, u. 16, s. 3 ; and Meux v. Howell, 4 East, 1. see 32 & 33 Vict. u. 71, s. 6. SALE OP GOODS. 577 the other creditors who should execute the assignment, ratably in proportion to their respective debts, is void under the statute of Elizabeth as against the other creditors ; because such terms might create a partnership among the creditors who executed the deed ; and were therefore terms to which the creditors were not bound to submit, (it) It has been held, however, that an assignment to trustees, for the benefit of creditors, which empowers the trustees to employ the debtor or any other person " in winding up his affairs, and collect- ing and getting in his estate and carrying on his trade," is not void under the statute ; provided it appear that the carrying on of the trade was to be merely ancillary to the object of winding it up. QO Again : such an assignment is void, unless and until the relation of trustee and cestui que trust be established between , 2 buch an as- the assignee and some of the creditors ; because, up to signment is .,,-,. , , , , , void until it that time, the deed is voluntary and revocable on the ceases to be part of the debtor. (c[) But so soon as this relation is established, there is a consideration for the deed, and it is no longer voluntary, (r) And in the case of Harland v. Binks, just referred to, it was held, that a verbal assent to the deed bv several of the ' " # When as- creditors, after the trustees had acted under it by taking signment not possession, was sufficient to render the deed irrevocable by the debtor. But where the assignment is to a creditor, in trust for himself and the other creditors of the assignor, it is not revocable ; because it is for the benefit of the trustee, and consequently his assent is not necessary in order to vest the property in himself, (s) It appears, moreover, that when an assignment is fraudulent and void, under the statute of Elizabeth, it is assignment so as against subsequent creditors, as well as against against sub- those who were creditors at the time of the assign- ;^.™ ent cred " ment. (£) The statute, however, does not extend to any estate or interest (a) Owen v. Body, 5 Ad. & El. 28. (q) Garrard r. Lord Lauderdale, 3 Sim. (p) Janes v. Whitbread, 11 C. B. 406 ; 1 ; Harland v. Binks, 15 Q. B. 713, 718. 20 L. J. C. P. 217, 221 ; and see Coates v. (r) Per Lord Campbell, Harland v. Williams, 7 Exch. 205; 21 L. J. Exch. Binks, 14 Q. B. 713, 718. 116. (s) Siggers v. Evans, 5 E. & B. 367. (t) Graham v. Eurber, 14 C. B. 410, 418. vol. i. 37 578 SUBJECT-MATTER OF CONTRACTS. in goods, &c, on good consideration and bond fide, lawfully con- Bona fides veyed to any person not having, at the time, notice of shown V tne f rau d ; and the bona fides of such a conveyance tht'instaT' ma y k e shown by facts dehors the instrument itself. ment. Thus, where a father, by deed, assigned to his son, " in consideration of natural love and affection, " his dwelling-house, and all his personal estate ; it was held — in an action by the son against the sheriff for levying on goods, part of such estate, under a fieri facias against the father — that the plaintiff might show that, by a bond bearing even date with the deed of assignment, he bound himself to maintain his father's wife and children ; and that — the jury having found that it was a part of the same transaction, and that the assignment was bond fide — it was not void as against creditors, under the 13 Eliz. c. 5. (w) Formerly, if a debtor sold his goods after the delivery of a writ Sale how af- of execution to the sheriff, they were liable, in the hands wri^of'ex*- °f tne P urcnaser ) to the rights of the execution creditor, cution. unless the sale took place in market overt, (x) But by the 19 & 20 Vict. c. 97, s. 1, it is enacted, that no 19 & 20 Vict. wr 't °f execution or attachment, against the goods of a c. 97, s. i. debtor, shall prejudice the title to such goods acquired by any person bond fide, and for a valuable consideration, before the actual seizure or attachment thereof by virtue of such writ, un- less he had notice, at the time he acquired such title, that such writ had been delivered to and remained unexecuted in the hands of the sheriff, under-sheriff, or coroner. This enactment, however, is not retrospective, (y) 3. From the general principle — that an action upon the case for Action for a deceit lies " if a man, by false affirmance of a thing deceit; within his knowledge, procure a fact to be done which otherwise would not be done," (z) — it would seem, that there may be cases in which, if a party become possessed of goods by means of a fraudulent purchase, the vendor may, instead of suing to re- cover the price or value of the goods, maintain an action to recover (u) Gale c. Williamson, 8 M. & W. (y) Williams v. Smith, 2 H. & N. 443 ; 405. S. C. in Cam. Scac. 4 lb. 559. (x) Samuel v. Duke, 3 M. & W. 622. (z) Com. Dig. Action upon the Case But they were not so liable in the hands for a Deceit (A.), 10; per Cur. Gerhard of a second bond fide purchaser. See v. Bates, 2 E. & B. 476, 488; per Parke Wilson & Wormal's case, Godb. 161. B. Thorn v. Bigland, 8 Exch. 725, 731. SALE OF GOODS. 579 damages for the deceit. (2 1 ) But it does not appear from the books that, in such cases, this remedy has been much resorted to. (s 2 ) (z 1 ) [If one injures another by false state- ments, which he knows to be false, he will be held answerable, although there was no evidence of gain to himself, or of any in- terest in the question, or of malice or intended mischief. Foster v. Charles, 6 Bing. 396 ; Corbett v. Brown, 8 Bing. 83 ; Freeman v. Baker, 5 B. & Ad. 797 ; Hart v. Tallmadge, 2 Day, 382 ; Young v. Hall, 4 Geo. 95 ; Stiles v. White, 11 Met. 356; Weatherford v. Fishback, 3 Scammon, 170 ; Watson o. Poulson, 7 Eng. Law & Eq. 585 ; Murray v. Mann, 2 Exch. 538 ; White u. Wheaton, 3 Selden (N. Y.), 352.] (z 1 ) [In Medbury v. Watson, 6 Met. 246, the declaration alleged, that the plaintiffs, wishing to purchase a tannery for the pur- pose of carrying on a joint business in the making and vending of leather, inquired of the defendant, if he could inform them where they could purchase such an estab- lishment ; that the defendant, intending to deceive and defraud them, and to induce them to purchase a tannery in Worthing- ton, belonging to one Thomas D. Wasson, and to give a much greater sum for it than it was worth, falsely asserted and affirmed to them, that he knew of such a tannery as they wanted, belonging to Thomas D. Wasson, who was ready to sell it, and that it could be purchased for $4,000, being the same sum which said Thomas D. paid one James Wasson for it ; and that he would aid the plaintiffs in making the purchase ; at the same time knowing that Thomas D. Wasson paid only $3,000 for it ; and that it was not worth that sum at the time when Thomas D. purchased, nor at the time of his (the defendant's) making the false representa- tion ; that he wrongfully and deceitfully encouraged them to make the purchase, and pay for it a much larger price than it was worth, namely, $4,000 ; and that the plaintiffs, confiding in his false assertions, and believing them to be true, and being ignorant of the value of the property, made the purchase, &c. The evidence sustained these allegations, and it was held, that the declaration set forth facts sufficient to maintain the action, and to let in proof of other facts, showing the fraud- ulent design of the defendant to injure the plaintiffs ; that the purchase of the tannery being made by the plaintiffs for partner- ship purposes, they were properly joined in the action, and that the false representa- tions, in such case, are not required to be in writing, they not affecting the title of a third person to credit. In this case, Hubbard J. said : " The action on the case for deceit is one well known ; and for a long series of years has been maintained in the English courts. It has also been sustained by us as an efficient means for the punishment of frauds, and for the protection of the weak and the ignorant against the designs and artifices of the crafty. The leading case, in modern times, on the subject of false affirmations made with intent to deceive, is that of Pasley v. Freeman, 3 T. R. 51, in which it was de- cided that a false affirmation, made by the defendant with intent to defraud the plain- tiff, whereby the plaintiff received damage, was the ground of an action upon the case in the nature of deceit ; and that it was not necessary that the defendant should be benefited by the deceit, or that he should collude with the person who received the benefit. This case, though much contested, and though often attempted to be shaken, has received the sanction of successive de- cisions in Westminster Hall, and in the courts of different states in this country. It has, indeed, been modified by the act of 9 Geo. 4, c. 14, commonly called Lord Tenterden's act, so far as to require the assertions, in regard to the credit of a third person, to be in writing, before the party can be charged on his false affirma- tion ; and the law has been modified in like manner here by St. 1834, c. 182, § 5, and by the Rev. Sts. c. 74, § 3. The great principle, however, on which that case 580 SUBJECT-MATTER OF CONTRACTS. And in Vernon v. Keys, (a) — which was an action on the case when it will f° r deceitful representations, whereby the plaintiff was induced to sell his interest in certain buildings, trade, lie. rests, has not been disturbed but is, in- deed, sanctioned by the very statute pro- visions and limitations in respect to it. But in actions on the case for deceit, founded on false affirmations, there has tained. I do not think it necessary to go over, in detail, the authorities cited by counsel for the defendant, they often hav- ing been the subject of comment ; but I presume I am safe in affirming, that the always existed the exception, that naked greater part, if not all, the cases cited, are assertions, though known to be false, are those of false affirmation, by the vendor to not the ground of action as between ven- the vendee, where the maxim caveat emptor dor and vendee; and in regard to affirma- applies, and not those resting upon the tions and representations respecting real false representations of a third person with estate, the maxim of caveat emptor has regard to the value of the property. And ever been held to apply. When, therefore, the distinction between the two cases is a vendor of real estate affirms to the ven- marked and obvious. In the one, the •dee that his estate is worth so much, that buyer is aware of his position ; he is deal- !he gave so much for it, that he has been ing with the owner of the property, whose offered so much for it, or has refused such aim is to secure a good price, and whose ra sum for it ; such assertions, though interest it is to put a high estimate upon Iknown by him to be false, and though his estate, and whose great object is to in- uttered with a view to deceive, are not duce the purchaser to make the purchase ; ^actionable. They are the mere affirmations of the vendor, on which the vendee can- not safely place confidence, and will not excuse his neglect in not examining for ihimself, and ascertaining what the facts while in the other, the man who makes the false assertions, has apparently no ob- ject to gain ; he stands in the situation of a disinterested person, in the light of a friend, who has no motive nor intention are, and what credit is to be given to the to depart from the truth, and who thus ;assertions. But even this is qualified by one of the more ancient decisions. As .where a vendor had falsely affirmed as to ifhe amount for which the estate rented, and had induced a person to give a higher throws the vendee off his guard, and ex- poses him to be misled by the deceitful representations. In the present case, we think the averments in the declaration would not have supported an action, if the : price for the estate in consequence of such false representations had been made by the ■false affirmation respecting the rent, there ,an action was held to lie, on the ground ithat it was a matter within his own knowl- edge, and the tenant might not disclose tthe amount of rent paid by him. Ekins ■v. Tresham, 1 Lev. 102 ; 1 Sid. 146. And *o, fraudulent misrepresentations of par- ticulars in relation to the estate, which ithe buyer has not equal means of know- ing, and where he is induced to forbear inquiries, that he otherwise would have rendor to the vendees. But the represen- tations were made by a third person, ap- parently disinterested, and who proposed to aid the plaintiffs in making the pur- chase, and to procure the estate for them for a price which he stated he knew that it cost, and which he affirmed it was worth. Such false affirmations and representa- tions, having been made by a third person, with the intent to defraud, we hold are actionable ; and though the declaration made, are not to be viewed in the light might have contained a more full avcr- of assertions, gratis dicta ; and therefore, ment of the facts expected to be proved, where damage ensues, the party guilty of yet we are of opinion that sufficient was the fraud will be liable for the injury bus- stated to maintain the action, and to let in (a) 12 East, 632; affirmed in error, 4 Taunt, 488. SALE OF GOODS. 581 and stock, at a less price than lie otherwise would have taken, — Lord Ellenborough, in delivering the judgment of the court, said : " To support this action, there must be a fraud clearly alleged to have been committed by the defendant, and a damage resulting from such fraud to the plaintiff. The fraud must consist in depriv- ing the plaintiff, by deceitful means, of some benefit which the law entitled him to demand or expect But is a buyer liable to an action of deceit, for misrepresenting the seller's chance of sale, or the probability of his getting a better price for his commodity than the price which such proposed buyer offers ? I am not aware of any case, or recognized principle of law, upon which such a duty can be considered as incumbent upon a party bargaining for a pur- chase. It appears to be a false representation in a matter merely gratis dictum by the bidder, in respect to which the bidder was under no legal pledge or obligation to the seller, for the precise ac- curacy and correctness of his statement, and upon which, therefore, it was the seller's own indiscretion to rely ; and for the conse- quences of such reliance, therefore, he can maintain no action." (a 1 ) Lastly : a representation made as to the character, credit, or re- sponsibility of a third person, in order to induce the Fraudulent owner of goods to sell them to the latter on credit, will tbnfaTto" ' not furnish a cause of action, however false and fraudu- credit > &c - lent the representation may be, unless it be reduced into writing, and signed by the party making it. (6) the other proofs connected with and grow- American states : Maine, Vermont, Massa- ing directly out of the assertions set forth chusetts, Virginia, Alabama, Kentucky, in the declaration." See Kidney v. Stod- Indiana, Missouri, and Michigan. Browne dard, 7 Met. 252.] St. of Frauds, § 181 et seq. A representa- (a 1 ) [1 Sudgen V. & P. (8th Am. ed.) tion by one member of a firm, as to the 5, and notes ; Warner v. Daniels, 1 Wood, trustworthiness of the firm, is within the & M. 90 ; Mason v. Crosby, 1 Wood. & M. meaning of this act. Devaux v. Stein- 342; Tyler o. Black, 13 How. (U. S.) keller, 8 Scott, 202. See, for the law on 231 ; Medbury v. Watson, 6 Met. 246, cited this subject, Lyde v. Barnard, 1 M. & W. in next preceding note. See, also, and 101; Haslock v. Fergusson, 7 A. & E. 86 ; consider, Prescott v. Wright, 4 Gray, 461, Swann v. Phillips, 8 A. & E. 457 ; Pasley which depended on representations made a. Freeman, 3 T. B. 51 ; 2 Kent, 488 et by the purchaser, in reference to the prop- seq. and cases cited in the notes ; Tryon erty he was purchasing, and upon a matter v. Whitmarsh, 1 Met. 1 ; Medbury v. Wat- quite as open to the examination and son, 6 Met. 246 ; Patten v. Gurney, 1 7 knowledge of the vendor as of the pur- Mass. 182 ; Terrell v. Bennett, 18 Geo. chaser, and yet the yendor was allowed 404; Harrison v. Savage, 19 Geo. 310; to repudiate the contract on account of Lord Eldon in Evans v. Bicknell, 6 Ves. them.] jr. 174 ; Adams v. Anderson, 4 Harr. & J. (6) 9 Geo. 4, k. 14, s. 6. [Similar stat- 558 ; Hamer v. Alexander, 5 Bos. & Pul. utes have been enacted in several of the 241.] 582 SUBJECT-MATTER OF CONTRACTS. 4. Illegal Sales. It is said to be perfectly settled, that where the contract which a party seeks to enforce, be it express or implied, is ex- pressly, or by implication, forbidden by the common or statute law, no court will lend its assistance to give it effect, (c) The application of this principle to contracts in general will be fully considered hereafter ; but it will be proper to point out, in this place, some of the cases in which contracts for the sale of goods cannot be enforced, because of their being void either, 1st, At com- mon laiv ; (d) or 2dly, By statute. At common 1- And, first, as to contracts which are illegal at com- law " mon law. Contracts of sale having an immoral object in view are void at Immoral con- common law. Thus, a printseller cannot recover the tracts. price of caricatures of an immoral, obscene, or libellous tendency, which he has sent to a customer who had given a gen- eral order for all the caricature prints that had ever been pub- lished, (e) And if a tradesman knowingly supply clothes or other articles to a prostitute, for the purpose of enabling her to carry on her prostitution, such a transaction is illegal ; and no claim founded thereon can be enforced in a court of justice. (/) (c) Per Parke P. Cope u. Rowlands, 2 suading persons from bringing their goods M. &W. 149, 157. Sec, also, Gas Light or provisions there; or persuading them Go.-v. Turner, 7 Scott, 793; Fivaz u. to enhance the price there. Regrating was Nicholls, 2 C. B. 501 ; [Scudder v. An- the buying of corn, or any other dead drews, 2 McLean, 464 ; Downing v. Ringer, victual, in any market, and selling it again 7 Missou. 585 ; Ebenman v. Reitzel, 1 in the same market, or within four miles of Watts & S. 181; Hale v. Henderson, the place. Engrossing was the getting into 4 Humph. 199; Spalding v. Preston, 21 one's possession, or buying up, large qnan- Vt. 9 ; Coburn v. Odell, 30 N. H. 540 ; tities of corn or other dead victuals, with Lewis e. Welch, 14 N. H. 294; Pattee intent to sell them again. 4 Bl. Com. 148; v. Greely, 13 Met. 284; Miller v. Post, 1 3 Inst. 195; 1 Hawk P. C. ch. 80; Rose Allen, 434. The principle'has been applied u. Maynard, Cro. Car. 231. These were to the sale of lottery tickets. Hunt v. offences at common law ; Rex v. Wad- Knickerbacker, 5 John. 327 ; Roby r. dington, 1 East, 142, 167 ; but they were West, 4 N. H. 285. And to a sale of abolished by the stat. 7 & 8 Vict. c. 24. wood by the cord, not measured by a wood (e) Pores v. Jones, 4 Esp. 97. measurer. Pray v. Burbank, 10 N. H. (/) Pearce v. Brooks, L. Rep. 1 Ex. 377.] 213 ; and see Bowry v. Bennet, 1 Camp. (d) Forestalling was the buying, or con- 348; Lloyd v. Johnson, 1 B. & P. 340; trading for, any merchandise or victual Jennings v. Throgmorton, R. & M. 251 ; coming in the way to market ; or dis- Appleton v. Campbell, 2 C. & P. 347. SALE OF GOODS. 583 So, by the common law, trading with an enemy is illegal ; and contracts with an enemy for the purchase or sale of Trading with goods cannot be enforced. (#) an enem y- So contracts for the sale of goods, which are bought and sold for the express purpose of being smuggled into this country, are illegal ; and an action for the breach of such a con- tract may be defeated by showing, either that the plaintiff was a sharer in the illegal transaction, or that he assisted in the act of smuggling. (K) Thus where the defendant, an Englishman living in England, contracted with the plaintiff, a foreigner living at Lisle, for a quantity of lace, which the plaintiff not only knew was to be smuggled into England, but which he packed in a particular man- ner, by the defendant's desire, for the purpose of evading detection ; the court held that the price could not be recovered, (i) But where the plaintiff, who was resident at and an inhabitant of Dunkirk, sold and delivered tea to the defendant at that place, with a mere knowledge that the latter intended to smuggle it into Eng- land, but afforded him no assistance in so doing ; and he was to be paid whether the attempt was successful or not ; the court held that the price was recoverable, on the ground that the contract was complete, and had been performed out of this country ; and that the vendor had no concern in the transaction itself. (&) And Lord Mansfield said : " If the defendant had bespoke the tea at Dunkirk, to be sent to England at a certain price, and the plaintiff had under- taken to send it into England, or had had any concern in the run- (g) As to the effect of " The Naturaliza- 28 N. H. 379. So, a sale of lottery tickets tion Act, 1870," see ante, 259. made in New York, where the sale was (h) Holman o. Johnson, Cowp. 341 ; lawful, was held valid in Massachusetts, Biggs v. Lawrence, 3 T. R. 454 ; Clugas although the vendor knew at the time that v. Penaluna, 4 T. R. 466 ; see per Ten- the vendee intended to sell them, or a part terden C. J. Brown v. Duncan, 10 B. & of them, in the latter state, where such C. 98, 99. sale was prohibited by statute. M'Intyre ({) Waymell v. Read, 5 T. R. 599, 600. v. Parks, 3 Met. 207. See, also, Kreiss u. (k) Holman v. Johnson, Cowp. 341 ; Seligman, 8 Barb. 439 ; Armstrong v. cited by Heath J. in Hodgson v. Temple, Toler, 1 1 Wheat. 265 ; Cambriso v. Maflit, 5 Taunt. 181. [If the vendor sell and 2 Wash. (C. C.) 98; Hannay v. Eve, 3 deliver spirituous liquors to the vendee, in Cranch, 242 ; Merchants Bank of N. Y. v. a state where such a sale is legal, upon an Spalding, 5 Selden, 53 ; Tracy v. Tal- action brought for the price thereof, in a madge, 4 Kernan, 162.] In Potten v. Tubb, state where such a sale would be illegal, 1 Esp. Dig. (4th edit.) 57, it was held that the bare knowledge on the part of the ven- the payee of a bill might sue the acceptor, dor, that the vendee intended to sell them although the latter had accepted it for the in the latter state contrary to law, is not price of goods sold upon a smuggling a defence to the action. Smith v. Godfrey, transaction between him and the drawer. 584 SUBJECT-MATTER OF CONTRACTS. ning it into England, he would have been an offender against the laws of this country. But, upon the facts of this case, from the first to the last, he clearly has offended against no law of Eng- land." (J) And it is reported to have been held by Lord Tenterden, that if „ , . , a man sell goods, to be delivered on a future day, and Sale of goods . not in the he neither has the goods at the time of the sale, nor has vendor's pos- , . , , , session is not entered into any contract to buy them, nor has, at that time, any reasonable expectation of receiving them by consignment ; but means to go into the market and buy the goods which he has contracted to deliver ; he cannot maintain an action against the vendor for non-performance of the contract ; it being, on his part, a mere wager on the price of the article, (m) But this decision is no longer law. (w) 2. Secondly, a contract for the sale of goods entered into in con- Contracts of travention of a statutory provision, whether the prohibi- Ugaiby d stat- ^ on ^ e ex P ress > or be merely implied from the imposi- ut e- tion of a penalty, cannot be enforced by action, (o) (I) See also Pellecatt v. Angell, 2 Cr., M. & R. 311 ; Russell on Factors, 178, 179. (m) Bryan v. Lewis, R. & M. 386. («) Hibblewhite v. M'Morine, 5 M. & W. 462 ; and see Mortimer v. M'Callan, 6 M. & W, 58 ; S. C. 7 M. & W. 20. (o) Cundell v. Dawson, 4 C. B. 376 ; [Allen v. Hawkes, 13 Pick. 82; Ellsworth a. Mitchell, 31 Maine, 247 ; Buxton v. Hamblen, 32 Maine, 448; Elkins v. Park- hurst, 17 Vt. 105; Brian v. Williamson, 7 How. (Miss.) 14; Marks v. Hapgood, 24 Maine, 407 ; Roby v. West, 4 N. H. 285 ; Allen v. Deming, 14 N. H. 133 ; Lewis v. Welch, 14 N. H. 294; Deering v. Chap- man, 22 Maine, 488 ; Wheeler a. Russell, 17 Mass. 358; Pattee u. Greely, 13 Met. 284 ; Miller v. Post, 1 Allen, 434. If a person sell spirituous liquors in Vermont, without a license, and in direct violation of the express provisions of the statute, such sale is illegal, and he can sustain no action therefor. Boutwell v. Foster, 24 Vt. 485 ; Bancroft v. Dumas, 21 Vt. 456. See Herrock v. Riser, 1 McCord, 481 ; Harris v. Runnells, 12 How. (U. S.) 79. So, in New Hampshire, the act of July 4, 1838, which imposes a penalty upon any person who shall sell spirituous liquors without license, makes the contract of sale illegal, and no action can be sustained upon such contract. Lewis v. Welch, 14 N. H. 294. See, also, to the same effect in Mas- sachusetts, Dixie v. Abbott, 7 Cush. 610. But the purchaser of spirituous liquors, sold without license, in violation of the statute, which inflicts a penalty on the seller, may maintain an action on the case, for a deceit and false warranty in the sale, if at the time when he bought he had no notice that the sale was made without license. Prescott v. Norris, 32 N. H. 101. Perley C. J. in this case said : " The statute does not punish the buyer ; he is not guilty of the statutory offence ; the unlicensed sale of spirituous liquors is not malum in se, and the buyer is not in pan delicto, unless, perhaps, in a case where he buys with notice that the sale is without license, and thus concurs in the commis- sion of the offence. In the absence of all evidence the buyer cannot be presumed to SALE OF GOODS. 585 An opinion, indeed, seems at one time to have been entertained, that where the claim sought to be enforced had arisen out of a trans- action involving the violation of a statute which had for its object not the protection of the public, but that of the revenue only, the person seeking to enforce such claim would not, in^the latter case, as in the former, be debarred from the exercise of this right, (jp) And accordingly, where it appeared that the plaintiff had sold a parcel of prize-manufactured tobacco, without having entered him- self at the excise-office as a dealer in that article, or having any license as such, he was still held entitled to recover ; because this was the breach of a mere revenue regulation, which was protected by a specific penalty. (c[) So, in Brown v. Duncan, (r) it appeared that A., B., C, D., and E., carried on trade in partnership as dis- tillers ; that C. alone carried on the business of a retail dealer in spirits, within two miles of the distillery, contrary to the 4 Geo. 4, c. 94, ss. 132, 133 ; and that his name was not inserted in the excise book or license as one of the partners in the distillery, as re- quired by the 6 Geo. 4, c. 81, s. 7 ; and it was held that, these being mere revenue regulations, the breach of them by one of the partners, with the knowledge of the others, did not render the trade carried on by the five illegal, so as to deprive them of the right to recover the price,of spirits sold by them, (s) But a careful examination of these cases will show, that they do know that the seller is committing an ing for any injury he has suffered growing offence, and no evidence in this case was out of it. It may be found, when it shall given on that point. We must, therefore, become necessary to decide the question, take it upon this case that the plaintiff that the law which punishes the unlicensed bought the spirits without notice or knowl- vendor of spirituous liquors belongs to edge that they were sold in violation of the this class.'' See White v. Franklin Bank, law; they cannot, therefore, be regarded as 22 Pick. 184, 185; Lowell v. Boston & particegs criminis, and are not in pari delic- Lowell R. K. Co. 23 Pick. 32, 33 ; Worces- to. It is by no means clear that the plain- ter v. Eaton, 11 Mass. 377 ; Utica Ins. Co. tiffs, even if they had known that the de- v. Bloodgood, 4 Wend. 652 ; Tracy v. Tal- fendants had no license, would be held to mage, 4 Kernan, 162 ; Curtis v. Leavitt, have shared in the offence in a way to pre- 15 N. Y. 9.] vent them from recovering in this action. (p) See per Tenterden C. J. Brown v. There is a class of cases in which a statu- Duncan, 10 B. & C. 93, 99. [See Favor v tory penalty is imposed upon one party to Philbrick, 7 N. H. 326, 340 ; Lewis v. an illegal transaction for the purpose of Welch, 14 N. H. 294, 298.] protecting the other party, as in the case (g) Johnson v. Hudson, 11 East, 180; of usury, and of the unlawful sale of lot- cited by Lord Tenterden C. J. in Brown tery tickets. In such cases the law does v. Duncan, 10 B. & C. 93, 98. not look upon the parties as in pari delicto, (r) 10 B. & C. 93. and the innocent party is not prevented by (s) And see Hodgson v. Temple, 5 his share in the transaction from recover- Taunt. 181. 586 SUBJECT-MATTER OF CONTRACTS. not properly involve any question on the doctrine which they have been supposed to establish ; (£) and the law is now well settled that, if the contract be rendered illegal, it makes no difference whether the statute which makes it so, has in view the protection of the revenue or any other object. («) It seems, however, that if the object of the statute be, not to Aliter where vitiate the contract itself, but only to impose a penalty the statute on ^] ie p ar ty offending, for the purpose of revenue, the does not avoid I J to' i 1 the contract, seller may recover ; (v ) unless, perhaps, where the goods sold have been actually lost to the purchaser by seizure and condemnation. (x~) But where a statute, as a revenue regulation and to protect the Contractvoid public health, prohibited brewers from using or causing astatute^' to ^ e usec ^ an y ingredients except malt and hops in passed for making beer ; it was held that a druggist who sold drugs protecting ° _ =° _ ° the public to a brewer, knowing the illegal object to which they health, &c; , ,- , , t , ^ -> were to be applied, could not recover the price, (jj) And it has likewise been held, that an agreement entered into for the purpose of enabling a person to sell beer and spirits without a license, cannot be enforced, such license being required for the protection of the public morals. (£) But a brewer who supplies (t) See per Littledale J. Forster v. Taylor, 5B.4 Ad. 890, 900. (u) Cope v. Rowlands, 2 M. & W. 149, 157; Ritchie u. Smith, 6 C. B. 462; 18 L. J. C. P. 9. (t>) Smith a. Mawhood, 14 M. & W. 452, 463 ; and see Bailey v. Harris, 12 Q. B. 905; 18 L. J. Q. B. 115. (x) See Bailey v. Harris, 12 Q. B. 905. (y) Langton v. Hughes, 1 M. & S. 593. (:) Ritchie v. Smith, 6 C.B. 462; S. C. 18 L. J. C. P. 9. [The vendor of spir- ituous liquors, who sells them knowing that they are to be resold in violation of law, and who, at the same time, enters into an arrangement for aiding the purchaser so to sell them as to evade the penalties of the statute, cannot recover the price of the liquors of the purchaser. Foster v. Thurs- ton, 11 Cush. 322; White v. Buss, 3 Cush. 448. See Robinson v. Howard, cited in note to Dixie v. Abbott, 7 Cush. 610,611 ; Spaulding v. Preston, 21 Vt. 9. But it has been held, that it is no defence to an action brought to recover the price of goods sold, that the vendor knew that they were bought for an illegal purpose, provided that it was not made a part of the contract that they should be used for that purpose, and provided also that the vendor has done nothing in aid or furtherance of the un- lawful design, beyond the mere sale with the knowledge of the illegal intent of the purchaser. Tracy v. Talmage, 4 Kernan, 162. See, also, to the same effect, Kreiss v. Seligman, 8 Barb. 439 ; Smith e. God- frey, 28 N. H. 379. So, a sale of goods in New York to a person who intends to sell them again in violation of the laws of that state, the vendor knowing of but not participating in such illegal purpose, being held valid by the laws of that state, will support an action to recover the price of them in Massachusetts. Dater v. Earl, 3 Gray, 482. In Case v. Riker, 10 Vt. 482, it was decided that an action may be sus- tained in Vermont for lottery tickets, sold in another state where the sale is legal, by a citizen of that state, though the vendor knew that such tickets were designed to be SALE OF GOODS. 587 beer to a public-house, on the credit of a person not licensed, can recover against such person for goods sold and delivered, (a) So, where a statute required that bricks made for sale should be of certain dimensions, and a penalty was inflicted for neglecting this provision, the object of which was the prevention of fraud on the purchaser ; it was held that, if bricks were sold and delivered under the statutable size, without the knowledge of the buyer, the seller could not recover their value. (5) So, the coal acts contain vari- ous provisions, which render it imperative on the dealer to deliver to the vendee of coals a ticket of a prescribed form ; and it has been decided that, if he neglect to do so, he cannot recover the price of such coals from the purchaser, (c) So, in Tyson v. Thomas, (<#) it was held, that as a contract for the sale of corn by the hobbett was in contravention of r for secur- the statute 22 Car. 2, c. 8, s. 2, (e) passed to preserve ^? T iform " proper measures, no action could be maintained thereon, weights, &c. So an action will not lie to recover the price of butter, which sold by the purchaser in Vermont, but not that the sale of such tickets in Vermont was prohibited by the laws of Vermont.] (a) Brooker v. Wood, 5 B. & Ad. 1052 ; overruling Meux v. Humphreys, Moo. & M. 132; S. C. 3 C. &P. 79. (6) Law v. Hodson, 11 East, 300. [No action lies on a promissory note, the con- sideration of which was the sale of shingles not of the size prescribed by the Stat, of Mass. 1783, u. 15. Wheeler v. Russell, 17 Mass. 258. See Coombs v. Emery, 14 Maine 404 ; Marks v. Hapgood, 24 Maine, 407 ; Ritchie v. Smith, 6 C. B. 462 ; Ladd v. Dillingham, 34 Maine, 316. Where a statute forbids merely an offer to sell certain goods, not prepared or marked in a particular manner, a sale not including an offer to sell is not regarded as prohibited. Brackett v. Hoyt, 29 N. H. 264 ; Williams v. Tappan, 23 N. H. 385 ; Jones v. Berry, 33 N. H. 209. In order to avoid a contract of sale under a statute, which declares that shingles offered for sale without being surveyed shall be forfeited, the offer to sell will not be inferred from proof of sale merely. Williams v. Tap- pan, 23 N. H. 385. See Commonwealth v. Eaton, 15 Pick. 273.] (c) Cundell v. Dawson, 4 C. B. 376, under 1 & 2 Vict. c. ci. s. 3 ; Little v. Poole, 9 B. & C. 192 ; and see 1 & 2 Will. 4, c. lxxvi. But the statute 1 & 2 Vict. c. ci. does not apply, where a cargo of coals is delivered on the wharf of the purchaser, directly from the vessel in which it was shipped, and without the intervention of any other vessel. Blanford v. Morrison, 15 Q."B. 724. (d) M'Cl. & Y. 119. (c) See 5 Geo. 4, c. 74 ; 5 & 6 Will. 4, c. 63, ss. 6, 7. Under the former of these acts it was held, that an agreement to sell by Winchester bushel is void ; see Watts v. Friend, 10 B. & C. 446. It is held, however, that the 5 & 6 Will. 4, c. 63, s. 6, applies only to sales by measure of ca- pacity, and not to sales by weight esti- mated in pounds ; and that therefore it does not extend to a sale by any local term, which designates a given number of pounds weight, e. g. to a sale of wheat by " Welsh hobbett ; " Hughes v. Humphreys, 3 E. & B. 954 ; or to a sale of many so tons of iron, " long weight ; " Giles o. Jones (in error), 11 Exch. 393. And the statute does not apply at all to a contract made in this country, for the sale of goods which are to be weighed or measured abroad. Rosseter v. Cahlmann, 8 Exch. 361. 588 SUBJECT-MATTER OF CONTRACTS. is packed and sold in vessels not marked according to the stat- ute. (/) And so, by the 27 & 28 Vict. c. 27, s. 11, it is enacted, that „ , , , . from and after the 1st day of July, 1865, it shall not be Sale of chain J J \ cables and lawful for any maker of or dealer in chain cables or an- Anchors chors, to sell or contract to sell for the use of any ves- sel, any chain cable whatever, or any anchor exceeding in weight 168 lbs., unless such chain cable or anchor shall have been previ- ously tested and duly stamped, in accordance with the provisions of that act. It is enacted by the statute 29 Car. 2, c. 7, s. 1, that no trades- Contracts of man, artificer, workman, laborer, or other person what- mlde on soever, shall do or exercise any worldly labor, business, Sunday. or wor k of their ordinary callings, (Z 1 ) upon the Lord's day, or any part thereof (works of necessity and charity only ex- cepted') ; and that every person of the age of fourteen years offend- ing in the premises shall forfeit five shillings. (/ 2 ) And it has (/) 36 Geo. 3, c. 88 ; Forster v. Tay- lor, 5 B. & Ad. 886. [So no action lies in Massachusetts to recover the price of milk sold by the can, at wholesale, in cans not sealed according to the statute requiring them to be sealed under a penalty, al- though the official state sealer refused to seal them for the statute price. Miller v. Post, 1 Allen, 434.] (Z 1 ) [See Allen v. Gardiner, 7 R. I. 22 ; Hazard ?;. Day, 14 Allen, 487.] (f 2 ) [Under similar statutes, in several of the United States, it has been held that a contract for the sale or exchange of a horse, or of other goods and merchandise, made and completed on Sunday, without any subsequent act or promise ratifying the same, is void. Sumner v. Jones, 24 Vt. 317; Lyon v. Strong, 6 Vt. 219; O'Donnell v. Sweeney, 5 Ala. 467 ; Towle v. Larrabee, 26 Maine, 464 ; Adams v. Hamell, 2 Doug. (Mich.) 73; Robeson v. French, 12 Met. 24; Dodson v. Harris, 10 Ala. 566 ; Saltmarsh v. Tuthill, 13 Ala. 390 ; Allen v. Deming, 14 N. H. 133 ; Smith v. Bean, 15 N. H. 577 ; Sellers v. Dugan, 18 Ohio, 489; Varney v. French, 19 N. H. 233 ; Hussey v. Roquemore, 27 Ala. 281 ; Murphy v. Simpson, 14 B. Mon. 419; Link v. Clemmens, 7 Blackf. 479; Reynolds v. Stevenson, 4 Ind. 619. " If a chattel has been sold and delivered on the Lord's day without payment of the price, the seller cannot recover either the price or the value ; not the price agreed on that day, because the agreement is illegal ; not the value, because, whether the property is deemed to have passed to the defendant, or to be held by him without right, there is no ground on which a promise to pay for it can be implied." Gray J. in Cran- son v. Goss, 107 Mass. 441. And a note given on Sunday for property sold on that day, cannot be enforced. Towle v. Larrabee, 26 Maine, 464 ; Adams a. Hamell, 2 Doug. 73 ; Goss v. Whitney, 27 Vt. 272 ; Cranson v. Goss, 107 Mass. 440, 441 ; Pope v. Linn, 50 Maine, 83 ; Hilton v. Houghton, 35 Maine, 143 ; Lovejoy u. Whipple, 18 Vt. 379; Pattee v. Greely, 13 Met. 284 ; Rainey u. Capps, 22 Ala. 288 ; Benson v. Drake, 55 Maine, 555. Whether such note would be good in the hands of an innocent indorsee, see Allen v. Deming, 14 N. H. 133; Saltmarsh v. Tut- hill, 13 Ala. 390 ; Cranson v. Goss, 107 SALE OP GOODS. 589 been held, under this statute, that a horse-dealer cannot sue for the breach of a warranty, made on the sale of a horse which was pur- Mass. 439 ; State Capital Bank v. Thomp- son, 42 N. H. 369 ; Clark v. Pease, 41 N. H. 414 ; Vinton v. Peck, 14 Mich. 287 ; Bank of Cumberland v. Mayberry, 48 Maine, 198. In Cranson v. Goss, 107 Mass. 439, it was decided that, although a note, bearing date of a secular day, is in fact so made on the Lord's day that no action could be main- tained upon it by the original payee, yet one who takes it in good faith and for a valuable consideration, before maturity, may maintain an action tlrereon against the maker. No action can be maintained on a warranty made on the sale or exchange of horses on that day ; Lyon v. Strong, 6 Vt. 219 ; Robeson v. French, 12 Met. 24 ; Hulet v. Stratton, 5 Cush. 539 ; Murphy v. Simpson, 14 B. Mon. 419 ; Bradley v. Lea, 14 Allen, 20 ; Webber v. Davis, 44 Maine, 147; Finlcy v. Quirk, 9 Minn. 194. Nor for deceit practised in the ex- change of horses, on that day. Robeson v. French, 12 Met. 24. See, also, Northup v. Foot, 14 "Wend. 248 ; Smith v. Bean, 15 N. H. 576, 578. Nor for money loaned on Sunday ; Finn v. Donahoe, 35 Conn. 216. Nor for the hire of horses, to be used on an excursion of pleasure, on Sun- day ; Berril v. Smith, 2 Miles, 402. Such a contract is unlawful. Gregg v. Wyman, 4 Cush. 322. See Hadley u. Snevily, 1 Watts & S. 477 ; Nodine v. Doherty, 46 Barb. 59. But the hire of a horse and carriage, on Sunday, by a son, to visit his father in the country, is a valid contract. Logan v. Matthews, 6 Barr, 417. An ac- tion cannot be sustained on a bond which is executed and delivered, neither from ne- cessity nor charily, on the Lord's day. Pat- tee v. Greely, 13 Met. 284. So it has re- cently been held that all contracts made on the Lord's day in Massachusetts are abso- lutely void. Day v. McAllister, 1 5 Gray, 433 ; Ladd v. Rogers, 11 Allen, 209 ; Brad- ley v. Rea, 14 Allen, 20. A contract entered into, on Sunday, in another state, is not a violation, or in any way in contravention of the statute of Vermont. Adams v. Gay, 19 Vt. 358. And, in the same case, it was also held, that contracts made on Sunday, should be held an exception, in some sense, from the general class of contracts, which are void for illegality. They are not tainted with any general illegality, but are illegal only as to the time in which they are entered into. And although closed on that day, they become valid, if affirmed on a subsequent day. This is said to be an indispensable exception to the general rule, in regard to illegal con- tracts, in order to secure parties from fraud and overreaching, which would oth- erwise be practised upon Sunday by those who know that their contracts are void, and that they are not liable civiliter for even frauds practised on that day. Adams v. Gay, ubi supra. Upon the point of con- firmation of contracts made on Sunday, see post, 592, note (o) ; upon the point stated, in Adams v. Gay, that an action lies for fraud in a contract void for illegal- ity, the decisions in Massachusetts are clearly to the contrary. Robeson v. French, and Gregg v. Wyman, ubi supra ; Way v. Foster, 1 Allen, 408 ; Wells J. in Myers v. Mcinrath, 101 Mass. 369. In the above case of Myers v. Meinrath, 101 Mass. 366, it was decided by the court and maintained with great clearness and force of reasoning by Wells J. in delivering the opinion, that an action will not lie in Mas- sachusetts for the conversion of a chattel, sold and delivered by the plaintiff to the defendant in exchange for another chattel on the Lord's day, and retained by the de- fendant, afterwards, notwithstanding the plaintiff returns the chattel for which it was exchanged, and demands a corre- sponding return by the defendant. See Ladd v. Rogers, 11 Allen, 209. But where goods have been delivered on a secular day in pursuance of a contract of sale, made on the Lord's day, an action will lie upon an implied assurijpsit for their value, but not for the price fixed by the contract. Bradley v. Rea, 14 Allen, 20 ; S. C. 103 Mass. 188 ; Cranson v. Goss, 107 Mass. 442. See Dickinson v. Richmond, 97 590 SUBJECT-MATTER OF CONTRACTS. chased by him on a Sunday. ( ' ing- know that the vendor was a horse-dealer, and that he Mass. 45 ; Tuckerman v. Hinkley, 9 Allen, 452; Bustin v. Rogers, 11 Cush. 346. Where the hours of the Lord's day are fixed by statute at a less number than twenty- four ; as where, by the statute of Majne, the Lord's day is, by statute, to be con- strued to include only the time between the midnight preceding, and the 6unset- ing of the same day ; it is held, that the contract, to be illegal, must be made before sunset of that day. The burden of proof is on the party claiming to avoid the con- tract, to show that it was made before that time. The mere fact that a contract is dated on Sunday, in the absence of other evidence, will not support a defence of ille- gality. Nason v. Dinsmore, 34 Maine, 391. But see Bustin v. Rogers, 11 Cush. 346, in which a sale was held illegal be- cause made on the Lord's day, the only evidence of which was that the plaintiffs book of charges, on which he relied to prove his case, showed that the charges for the property in question, were dated on the Lord's day. There was no evidence in the case to show the hour of the day, nor was this point adverted to. If the sale was made, after sunset on the Lord's day, it was not prohibited. So far as the above proof goes the sale may have been made after sunset, and thus may have been made at a time when it would be valid. The decision in Nason v. Dinsmore, supra, is certainly founded in reason and takes the true distinction, and will unquestion- ably be followed, when the point arises and is made. See, also, Bryant v. Biddeford, 39 Maine, 193. This point was noticed, and the hour seems to have been regarded as important in Merriam r. Stearns, 10 Cush. 257, in which it was held, that a guaranty for the fulfilment of a lease, ex- ecuted and delivered on a Lord's day, be- tween sunrise and sunset, is void under the Rev. Stat, of Mass. c. 50, although the lease itself is not executed until a week-day following. A private sale or transfer of personal property made on Sunday, is valid in New York, and the title to the property passes. Boynton v. Page, 13 Wend. 425 ; Styles v. Smith, 12 Wend. 57 ; see Smith v. Foster, 41 N. H. 215.] (g) Fennell u. Ridler, 5 B. & C. 406 ; Rex v. The Inhabitants of Whitnash, 7 B. & C. 602. (A) Smith v. Sparrow, 4 Bing. 84. (A 1 ) [See Botsford v. Every, 44 Barb. 618.] (i) Scarfe v. Morgan, 4 M. & W. 271 Drury v. Do la Fontaine, 1 Taunt. 131 Bloxsome v. Williams, 3 B. & C. 233, 234 [Allen v. Gardiner, 7 R. I. 22 ; Hazard v. Day, 14 Allen, 487.] The statutes do not render travelling on a Sunday, by a stage- SALE OF GOODS. 591 was selling the horse in the exercise of his ordinary calling, has been held to be entitled to sue for a breach of such warranty not- withstanding the sale took place on a Sunday. (A) So it is no defence to an action against an attorney, on an agree- ment entered into by him for the purpose of settling the affairs of a client, and on which he has made himself personally liable, that such agreement was entered into on a Sunday, his entering into such an agreement not being a matter within the scope of his ordi- nary calling. (I) And a contract for the sale of goods, even although it be made on a Sunday in the exercise of the vendor's ordinary Contract calling, is not affected by the statute, unless it be a com- p]et S ed b on°the plete contract on that day. (Z 1 ) If, therefore, there be Sunday. a verbal contract on a Sunday for the purchase of a horse, but the horse be not delivered, nor any part of the price paid until a subse- quent day, the contract is good ; for, under the statute of frauds, there was no binding bargain on the Sunday, (m) And so, if there coach or a post-chaise, illegal ; so that the hire may be recovered ; Sandiman v. Breach, 7 B. & C. 96. And a contract between a farmer and laborer for the hire of the latter, is good, though made on a Sunday ; Rex v. The Inhabitants of Whit- nash, 7 B. & C. 596. A baker may bake dinners for customers on Sunday ; Rex v. Younger, 5 T. R. 449. [A will made on Sunday is not invalid for that reason. George v. George, 47 N. H. 27 ; Bennett v. Brooks, 10 Allen, 118.] (£) Bloxsome v. Williams, 3 B. & C. 232; [Cranson v. Goss, 107 Mass. 442. And so it has been held that the purchaser of spirituous liquors, sold without a license in violation of a statute inflicting a pen- alty on the seller, may sustain an action on the case for a deceit and false warranty in the sale, if at the time when he bought he had no notice that the sale was made without a license. Prescott v. Norris, 32 N. H. 101, cited ante, 584, note (o). (1) Peate v. Dicken, 1 Cr., M. & R. 422. Whether an attorney be within the statute at all, qumre ? lb. 428. (Z 1 ) [Smith u. Bean, 15 N. H. 577; Sumrier ;;. Jones, 24 Vt. 317 ; Lovejoy v. Whipple, 16 Vt. 379 ; Barron v. Pettes, 18 Vt. 385 ; Stackpole v. Symonds, 23 N. H 229 ; Goss v. Whitney, 24 Vt. 187 ; Merrill a. Downs, 41 N. H. 78 ; Butler v. Lee, 11 Ala. 885. But where the sale is made and the property is delivered, so far as the ven- dor is concerned, on Sunday, the contract will be void, though the property pur- chased is actually taken by the vendee into his possession, on some subsequent day ; and no recovery can be had upon a note given, or other promise made to pay, for the property so sold. Smith v. Bean, 15 N. H. 577 ; Allen v. Deming, 14 N. H. 133. The vendee may, however, maintain the possession of the property thus ob- tained against both the vendor and the creditors of the vendor. Smith u. Bean, 15 N. H. 577; Myers v. Meinrath, 101 Mass. 368 ; King v. Green, 6 Allen, 139 ; Hall v. Corcoran, 107 Mass. 259 ; Cranson v. Goss, 107 Mass. 441 ; Horton v. Buf- fington, 105 Mass. 399. But see Allen v. Deming, 14 N. H. 133 ; Adams v. Gay, 19 Vt. 358, and other Vermont cases in note (o) below. A note, though signed on Sun- day, may be enforced if delivered on some other day. Hilton v. Houghton, 35 Maine, 143; Lovejoy v. Whipple, 18 Vt. 379; Hill v. Dunham, 7 Gray, 543.] (m) Bloxsome v. Williams, 3 B. & C. 232. [Whether the price fixed on Sunday. 592 SUBJECT-MATTER OF CONTRACTS. Effect of sub sequent promise. Sale of game. be a delivery and acceptance within the statute before the Sunday, the contract will be valid, although the goods may not be sent away from the premises of the vendor until that day. (n) So where the defendant, — who had, on a Sunday, bought some cattle of the plaintiff, a drover, — kept them, and after- wards promised payment, it was held that he was liable upon a quantum meruit, (o) But the mere fact of the vendee keeping the goods, will not ren- der him liable in such a case. (^>) The stat. 1 & 2 Will. 4, c. 32, s. 4, prohibits the buying or sell- ing of birds of game, after the expiration of ten clays from the respective days in each year on which it be- is binding, in such cases, see Bradley v. Lea, 14 Allen, 20 ; Day v. McAllister, 15 Gray, 433 ; Cranson u. Goss, 107 Mass. 441.] (n) Beaumont v. Brengeri, 5 C. B. 301. (o) "Williams o, Paul, 6 Bing. 653. [The doctrine of the case of Williams v. Paul, has, in several cases in Vermont, received the direct approval of the court. In the case of Adams v. Gay, 19 Vt. 358, it was held, that a refusal to rescind the con- tract and return the property at the request of the other party, was an affirmation of the contract, and rendered it obligatory. And in the case of Sargent v. Butts, 21 Vt. 99, in which there was a subsequent promise, it was held, that such promise ratified and rendered obligatory an award made on Sunday, so that an action could be sustained on the award itself. And so where a horse was sold on Sunday, for which the purchaser on the same day gave the vendor his note, and afterwards made two payments upon the note, and retained the horse without offering to return the same, it was held, that these payments upon the note, accompanied with the re- tention of the property, was a subsequent ratification of the contract, and that the vendor was entitled to recover the balance due upon the note. Sumner v. Jones, 24 Vt. 317. But see Butler v. Lee, 11 Ala. 885. In Boutelle v, Melendy, 19 N. H. 196, it was held, that an illegal contract is in- capable of confirmation, or of becoming the consideration of a subsequent promise. See Allen „. Deming, 14 N. H. 133. In Boutelle u. Melendy, the court said : " The propriety of the decision of Wil- liams v. Paul, has since been seriously questioned in the English courts ; and even in the later cases in Vermont some hesitation has been manifested. The case of Simpson v. Phillips, 3 M. & W. 244, by which the case of Williams o. Paul was supposed to have been in some degree con- firmed, was afterwards corrected by a note at the end of 3 M. & W. 244, in which the reporter states that the opinion of Baron Parke, in Simpson v. Phillips, was mis- conceived upon this point, and that he doubted whether the case of Williams v. Paul could be supported in law." See Day v. McAllister, 15 Gray, 433 ; Reeves v. Butcher, 2 Vroom (N. J.), 224 ; Myers v. Meinrath, 101 Mass. 368. A contract made in violation of the Lord's day in Massachusetts, is absolutely void and in- capable of ratification. Bradley u. Rea, 14 Allen, 22; Ladd v. Rogers, 11 Allen, 209; Day v. McAllister, 15 Gray, 433; Hazard v. Day, 14 Allen, 487 ; Cranson v. Goss, 107 Mass. 440, 441. In .Tucker- man v. Hinkley, 9 Allen, 454, 455, Chap- man J. said : " The case of Williams v. Paul is not to be relied on."] (p) Simpson v. Nicholls, 3 M. & W. 240. [See Smith v. Bean, 15 N. H. 577; Allen v. Deming, 14 N. H. 133 ; Bradley v. Rea, 14 Allen, 20; Stebbins v. Peck, 8 Gray, 553 ; Sumner v. Jones, 24 Vt. 217 ; Boutelle v. Melendy, 19 N. H. 196.] SALE OF GOODS. 593 comes unlawful under the act to kill or take such birds of game. But it has been held, that this section does not prohibit a licensed dealer in game from entering into a contract, during the season, to deliver live game out of a mew, or breeding-place, at any time of the year. (. Higgins (in Dom. Proc.), 12 Jur. 295, 298; 1 H. L. Cas. 381, 403 ; Suydam v. Jenkins, 3 Sandf. (S. C.) 614. See Sedgwick Dam. (5th ed.) 304, 305. The only apparent difference in favor of the advanced pay- ment may fairly be presumed to have been settled at the time of the contract of sale, by the increase of price in consequence of SALE OF GOODS. 623 And if, after the contract has been broken by the non-delivery of the goods at the day appointed, the buyer, at the request of the seller, consent to wait for the delivery of the goods until a future day ; the buyer is entitled, in an action for breach of the contract, to recover as damages the difference between the contract price and the market price on that day. (#) [If there is no difference proved between the contract price and the market price, only nom- inal damages can be recovered.] (^ J ) But if, between the time of the sale and the time appointed for the delivery of the goods, the buyer enter into a contract to resell deferred payment, where a credit has been allowed. Where there is a note or con- tract to pay a certain sum of money in specific articles at a fixed price, it seems to be in the option of the debtor, before the time for delivery, to pay in the goods named at the prices specified, or in money ; but after the time for delivery has expired, his obligation to pay the money is abso- lutely fixed, and that sum has been held, in many cases, to furnish the rule of dam- ages to be recovered by the creditor. See Brooks v. Hubbard, 3 Conn. 58 ; Coucier v. Graham, 1 Ham. (Ohio) 351 ; Bailey v. Clay, 4 Band. 346 ; Pinney v. Gleason, 5 Wend. 398 ; Perry <,. Smith, 22 Vt. 301 ; Chip, on Cont. 35 ; Mettler v. Moore, 1 Blackf. 342. But in other cases, it has been decided, that a promise to pay a cer- tain sum, payable in goods specified, at prices named cannot be dicharged by pay- ment of the sum of money mentioned, but is a contract for the delivery of the speci- fied goods, and damages for non-delivery are to be computed as in other cases. See Cole v. Boss, 9 B. Mon. 393 ; Walton v . Craig, 2 Bibb, 584 ; Meason v. Phillips, Addison, 346 ; Wilson v. George, 10 N. H. 445 ; Gleason v. Pinney, 5 Cowen, 152, 211. So, in regard to a receipt given for the return of articles attached on mesne pro- cess, if the value of the articles is fixed in the receipt, that value will form the meas- ure of the damages. Drown v. Smith, 3 N. H. 299. If, on a contract for the deliv- ery of specific articles at a certain price, pn a certain future day, money has been advanced, and on the day and at the place of delivery, articles of the kind may be ob- tained for a less price in the market, the rule of damages will be the sum advanced, with interest. Bush v. Canfield, 2 Conn. 485. In an action for the non-delivery of a quantity of whiskey on a particular day, according to contract, the enhancement of the price of the article by the operation of the excise laws, passed subsequently to the contract, does not affect the quantum of damages. Edgar v. Boies, 1 1 Serg. & B. 445. See ;Stone v. Codman, 15 Pick. 297. Upon the breach of a contract for the delivery of merchandise, the plaintiff is not entitled to recover damages, for his trouble and expense in procuring the con- tract to be made. Stevens v. Lyford, 7 N. H. 360. In a case where , the vendee brought an action against a vendor for the non-delivery of a large quantity of wheat, which the latter had contracted to deliver to the former at a stipulated price, and a recovery was had for the full value of the wheat, although but a nominal sum, merely to bind the bargain, had been paid, and the vendor subsequently brought his action to recover the price of the wheat as stipu- lated in the contract, it was held, that the action would not lie ; that the plaintiff ought in the former action to have insisted, that he was only liable for the difference between the contract price and the value of the article, and having omitted to do so, he could not now bring a cross-suit. Dey v. Dox, 9 Wend. 129.] (g) Ogle a. Earl Vane, L. E. 2 Q. B. 275. (g 1 ) [See Valpy v. Oakeley, 16 Q. B. 941 ; 20 L. J. Q. B. 380.] 624 SUBJECT-MATTER OF CONTRACTS. the goods ; he is not entitled, in an action against the original seller for the breach of his contract, to recover as damages the profit which would have resulted from such resale, (fi) "Where, however, the vendor sold the goods, with notice that the buyer was buying for the purpose of fulfilling a contract which he had made with a merchant abroad ; and part of the goods was not delivered at all ; while the part which was delivered was not de- livered until after the appointed time ; it was held that, in an action against the seller the buyer was entitled to recover as damages the profit which he would have made from his contract with the foreign merchant, and also the extra charge which he was compelled to pay for freight and insurance, in consequence of the lateness of the sea- son at which the goods actually supplied had to be shipped, (i) Where goods are delivered which are inferior in quality to those orfordeih-er- contracted for, the measure of damages is the difference inferior S between the value of goods of the quality contracted for, quality. anc [ ^ e amoun f. produced by the resale of the goods actually delivered ; provided, that is, the goods are resold immedi- ately on their being delivered ; or, if they cannot be resold immedi- ately, then provided they are resold within a reasonable time. (A) 2. Formerly the vendee of goods had no other remedy at law in case of the non-delivery thereof, except that by action. (J) But now (h) Williams u. Reynolds, 6 B. & S. unable to complete. Borries v. Hutchin- 495. [The buyer is not entitled to damages son, 18 C. B. N. S. 445; 34 L. J. C. P. beyond the market value of the goods at 169. Upon this principle, in an action the time appointed for delivery, by reason against a carrier for not delivering goods of an increased price having been agreed at the proper time and place, according to upon in consideration of the goods being the contract, the measure of damages being delivered at that time. Brady v. Oastlcr, the value of the goods at that time and 3 H. & C. 112; 33 L. J. Exch. 300.] place, if there is no market at that place (i) Borries v. Hutchinson, 18 C. B. N. to regulate the value, the value must be S. 445. [When there is no market at which ascertained by taking the price at the the buyer could procure goods of the like place of manufacture, and adding to it kind to supply the place of those con- the cost of carriage, and a reasonable al- tracted for, the seller may become liable lowance for importer's profits. O'Hanlan for the special damage caused under the v. Great Western Railway Co. 6 B. & S. circumstances by his default in delivering 484 ; 34 L. J. Q. B. 154 ; Rice u. Baxen- the goods. Thus, where goods were sold dale, 7 H. & N. 96; 30 L. J. Exch. 371.] for the purpose of selling again, which the (k) Loder u. Kekule", 3 C. B. N. S. seller knew, upon default in delivering the 128, 139.] goods, there being no market at which the (I) In what cases a court of equity will buyer could procure the like goods, he decree specific performance of a contract was held entitled to recover as damages for the sale of a chattel ; Falcke v. Gray, the loss of profit on resales which he was 29 L. J. C. 28. WARRANTY. 625 by the 19 & 20 Vict. c. 97, s. 2, in all actions for breach of contract to deliver specific goods for a price in money, on appli- cation of the plaintiff, and by leave of the judge before may have whom the cause is tried, the jury shall, if they find the irreryof the plaintiff entitled to recover, find by their verdict what goods ' are the goods in respect of the non-delivery of which the plaintiff is entitled to recover, and which remain undelivered ; what (if any) is the sum the plaintiff would have been liable to pay for the delivery thereof ; what damages (if any) the plaintiff would have sustained if the goods should be delivered under execution as thereinafter mentioned, and what damages, if not so delivered ; and thereupon, if judgment shall be given for the plaintiff, the court, or any judge thereof, at their or his discretion, on the application of the plaintiff, shall have power to order execution to issue for the delivery, — on payment of such sum (if any) as shall have been found to be pay- able by the plaintiff as aforesaid, — of the said goods, without giving the defendant the option of retaining the same upon paying the damages assessed. 2. Of a Warranty upon the Sale of Goods. 1. Where specific goods are sold, there would seem to be, by our law, a warranty implied, that the subject-matter of the warranty sale exists, and is capable of being transferred to the pur- Jitter ofsaie chaser ; and if it turns out that, at the time of the sale, exists. the goods were not in existence, or were not capable of being trans- ferred to the purchaser, he will be excused from paying the price, (to) So, in the case of a grant of goods by deed, there is an implied covenant by the grantor not to do any act which will derogate from his grant, e. g. by parting with the possession of the goods in ques- tion, (n) But the received opinion is that, by the English law, there is in general no implied warranty of title on the sale of goods ; (n 1 ) (m) See Coutourier v. Hastie, 5 H. L. Thompson v. Gould, 20 Pick. 139 ; ante, Cas. 673 ; Hastie v. Coutourier, 9 Exch. 517, note (g 1 ). 102 (in Cam. Scac.), overruling Coutourier (n) Aulton v. Atkins, 18 C. B. 249; v. Hastie, 8 Exch. 40. [See Allen v. Ham- Ward v. Audland, 16 M. & W. 862 ; mond, 11 Peters (U. S.), 63 ; Hitchcock v. [Dexter v. Manley, 4 Cush. 24 ; Eaton v. Giddings, 4 Price, 135 ; Rice v. Dwight Melius, 7 Gray, 566, 572 ; Rawle Cov. for Manuf. Co. 2 Cush. 80, 86; Wilde J. in Tit. 167.] (re 1 ) [But see 2 Bl. Com. 451.] vol. i. 40 626 SUBJECT-MATTER OF CONTRACTS. and that, if there be no fraud, the vendor is not liable on account N m li d °^ ^ ne badness °f n ' s tide, unless there be an express warranty of warranty, or an equivalent to it by declarations or con- duct. (0) (0) Morley v. Attenborough, 3 Exch. 500 ; Bagueley v. Hawley, L. E. 2 C. P. 625; [Sims v. Maryatt, 17 C. B. 281.] Where a patent is sold, there is no implied warranty that it is good. Hall v. Conder, 2 C. B. N. S. 22 ; Smith v. Neale, lb. 67. Nor is there in the case of a license to make or use a patent invention, where the license has been actually enjoyed. Lawes v. Purser, 6 E. & B. 930 ; Noton v. Brooks, 7 H. & N. 499 ; Crossley v. Dixon, 32 L. J. C. 617. By the civil law, a warranty of title was implied on a sale of goods. Domat, p. 1, b. 1, tit. 2, s. 2, art. 3. The 'law of France is to the same effect ; Code Civil, book 3, tit. 6, s. 3 ; or rather there is, by the Erench law, an implied indem- nity against actual eviction and its conse- quences. See lb. The same doctrine pre- vails in Scotland; Bell's Prin. ss. 121, 122 ; [and very generally in the United States it is held, that upon all sales of personal property by one in possession, the law implies a warranty of title. 3 Kent, 478 ; Gookin a. Graham, 5 Humph. 484 ; McCabe v. Morehead, 1 Watts & S. 513; Eldridge v. Wadleigh, 3 Fairf. 372; Hale v. Smith, 6 Greenl. 420; Chism i>. Woods, Hardin, 531 ; Payne v. Rodden, 4 Bibb, 304 ; Reid v. Barber, 3 Cowen, 272 ; Cozzins a. Whitakcr, 3 Stew. & Port. 322 ; Inge *. Bond, 3 Hawks, 101 ; Heermance v. Vernoy, 6 John. 5 ; Sweet v. Colgate, 20 John. 196; Vibbard v. Johnson, 19 John. 77 ; Bucknam v. God- dard, 21 Pick. 71 ; Mockbee 0. Gardner, 2 H. & Gill, 176; Coolidge v. Brigham, 1 ;Met. 551; Darst v. Brockway, 11 Ohio, 462 ; M'Coy v. Artcher, 3 Barb. 323 ; Lines u. Smith, 4 Florida, 47 ; Butler v. Tufts, 13 Maine, 302 ; Scott v. Scott, 2 A. K. Marsh. 215; Chancellor v. Wiggins, 4 B. Mon. 201 ; Colcock v. Goode, 3 McCord, 513; Bicks v. Dillahunty, 8 Porter, 134; Dorr v. Fisher, 1 Cush. 273, per Shaw C. J.; Emerson v. Brigham, 10 Mass. 202 ; Bennett v. Bartlett, 6 Cush, 225; Hun- tington v. Hall, 36 Maine, 501 . The pos- session of the vendor is equivalent to an affirmation of title. M'Coy v. Artcher, 3 Barb. 323. But it is otherwise where the vendor is out of possession, and there is an adverse claim to the chattel, made known at the time to the vendee, and especially when the vendor, notwithstand- ing his affirmation of title, says expressly, that he sells only such title as he has. Andres u. Lee, 1 Dev. & Bat. Eq. 318. See Galbraith u. Whyte, 1 Hayw. 464; Long on Sales (Rand's ed.), 201, 203; Long v. Hickingbottom, 28 Miss. (6 Cush.) 772. And even without these qualifying circumstances, where the property sold is in the possession of a third person, and the vendor makes no affirmation or as- sertion of ownership, there is no implied warranty of title. Edick v. Crim, 10 Barb. 445; Dresser v. Ainsworth, 9 Barb. 619; per Sewall J. in Emerson v. Brigham, 10 Mass. 202 ; Pratt v. Philbrook, 32 Maine, 23 ; Huntington v. Hall, 36 Maine, 501. In cases where the implied warranty of title arises, it extends to a prior lien or incumbrance. Dresser u. Ainsworth, 9 Barb. 619. Whether, under the implied warranty of title, if the vendor had no title at the time of sale, but acquired one afterwards, it would inure to the benefit of the vendee, see Sherman v. Champ- lain Trans. Co. 31 Vt. 162. In a sale by executors, administrators, and oilier trus- tees, there is no implied warranty of title. Mockbee v. Gardner, 2 H. & Gill, 176; Ricks u. Dillahunty, 8 Porter, 133 ; For- sythe v. Ellis, 4 J. J. Marsh. 298 ; Bingham a. Maxcy, 15 111. 295 ; Prescott v. Holmes, 7 Rich. Eq. 9 . So, in case of sales by officers of the law. Worthy v. Johnson, 8 Geo. 236; Hensley v. Baker, 10 Missou. 157; Chapman v. Speller, 14 Q. B. 621; WARRANTY. 627 If, however, the vendor knew that he had no title, and con- cealed that fact, he is responsible to the purchaser, as Vendor liable ~ ™ , , N if he knew he tor a traud. (£>) had no title. And it is said that, with respect to executory contracts of pur- Morgan v. Fencher, 1 Blackf. 10 ; Rodgers v. Smith, 2 Cart. (Ind.) 526 ; Bostick v. Winton, 1 Sneed, 525 ; Yates v. Bond, 2 McCord, 382; Bashore v. Whisler, 3 Watts, 490; Davis v. Hunt, 2 Bailey, 412 ; Stone v. Pointer, 5 Munf. 287. On the sale of a promissory note, the law im- plies a warranty that it is not paid ; Ellis v. Grooms, 1 Stewart, 47 ; see Eaton v. Melius, 7 Gray, 566 ; that the signatures and indorsements upon it are made by persons, who have capacity to make a valid contract; Thrall an action lies against him, if the plied. purchaser be evicted by a better title. (V 1 ) The decla- ration charged that there was a colloquium between the parties con- cerning certain oxen then in the defendant's possession, and the sale of them ; that the defendant then and there falsely and mali- ciously affirmed that the oxen were his proper goods, to which the plaintiff giving credit, bought them of defendant ; whereas they were not his property ; and that the plaintiff was compelled to give them up to the true owner, who recovered them by action. It was moved in arrest of judgment, that the declaration was ill, because no warranty was laid, nor was it averred that the defendant knew that his assertion was false. But the court held that the action was maintainable ; and, according to Carthew's Report, they said that the bare affirmation was enough ; and that the plaintiff had no means to know to whom the property of these goods did belong, but only by the possession. («) So, in Medina v. Stoughton, (t) Lord Holt is reported to have said, that where one, having the possession of any personal chat- tel, sells it, the bare affirming it to be his, amounts to a warranty, and an action lies on the affirmation ; for his having possession is a color of title, and perhaps no other title could be made out ; aliter where the seller is out of possession, for there may be room to question the seller's title ; and caveat emptor, in such case, to have (q) Per Cur. Morley v. Attenborough, 66, 73. In Humphreys u. Pratt, 5 Bligh 3 Exch. 500 ; 18 L. J. Exch. 148 ; S. C. N. S. it was decided, that if a judgment 13 Jur. 282, 285, where all the authorities creditor, who has issued a fieri facias, are cited and commented upon ; and see affirm to the sheriff, that certain goods Peto «. Blades, 5 Taunt. 657 ; Jones u. belong to the defendant, and thereby in- Bowden, 4 Taunt. 847. duce the sheriff to take them in execution; (r) Carth. 90 ; 3 Mod. 261 ; 1 Show, and a third person, the real owner, there- 68; S. C. 1 Roll. Abr. 91, 1. 5, cited by upon recover the value from the sheriff; Buller J. in Pasley v. Freeman, 3 T. R. the latter may have an action on the case 57. against the judgment creditor for his false (r 1 ) [See Strong v. Barnes, 11 Tt. 221 ; affirmation ; although it was not made Yelverton, by Mr. Metcalf, 21 b, note; fraudulently, or with knowledge of its Andres v. Lee, Dev. & Bat. Eq. 218.] falsity. (s) And see Adamson v. Jarvis, 4 Bing. (t) 1 Salk. 210; S. C. 1 Ld. Eaym. 593. WARRANTY. 629 either an express warranty or a good title. But this distinction was disapproved of by Mr. Justice Buller, (u) who said, that it was not mentioned by Lord Raymond, in his report of the case of Medina v. Stoughton. And the law would appear to be, that the mere assertion of title to goods, though the vendor be not at the time in possession thereof, will afford a right of action against him, if he turn out not to be the owner, (x) So, where a party agreed to sell " the exclusive right of publish- ing " a certain work for a term of years ; it was held that this amounted to an express warranty by him, that he had a good title to the copyright of the work in question, (jf) It appears, moreover, that a warranty of title to goods may be implied from a usage of trade, or even from the very nature of a particular trade. Thus, if goods are bought in a shop, professedly carried on for the sale of goods, the shopkeeper will be considered as warranting, that those who purchase such goods will have a good title to keep them. (2) In such a case, it is said, the vendor sells the goods as his own, and that is equivalent to a warranty of title, (a) So, it would seem that, where a party pledges property, he im- pliedly undertakes that the property pledged is his own. (6) But it has been held that, where a party employs a broker to sell scrip for him, he does not impliedly warrant to the broker, that the scrip in question is genuine, (e) In the case of Morley v. Attenborough, (<£) the court said, that though there was no implied warranty of title in the whetherthe case of a sale of goods, so that the vendor would not be vendee can o ' sue the ven- liable to an action for unliquidated damages as for a dor for 1 i 1 • i_i money had breach 01 such warranty ; yet the purchaser might re- and received, cover back the purchase-money, as on a consideration qmB that had failed, if it could be shown that it was the understanding of both parties, that the bargain should be put an end to, if the pur- (u) Pasley v. Freeman, 3 T. E. 57. Attenborough, it was held, that a pawn- (x) See Morley v. Attenborough, 3 broker who sells goods, could not be con- Exch. 500 ; 18 L. J. Bxch. 148. sidered as undertaking anything more, (y) Sims v. Marryatt, 17 Q. B. 281 ; 20 than that the subject of the sale was a L. J. Q. B. 454. pledge, and irredeemable, and that he was (z) Eichholz v. Bannister, 17 C. B. N. not cognizant of any defect of title thereto. S. 708. (b) Cheesman v. Exall, 6 Exch 341, (a) Morley v. Attenborough, 3 Exch. 343, 344. 500, 512 ; 2 Bl. Com. 451 ; citing Cro. Jac. (c) Westropp v. Solomon, 8 C. B. 345. 474 ; 1 Roll. Abr. 90, 1. 5. In Morley v. (d) 3 Exch, 500, 514. 630 SUBJECT-MATTER OF CONTRACTS. chaser should not have a good title. But that if there was no im- plied warranty of title, some circumstances must be shown to en- able the plaintiff to recover for money had and received. In the subsequent case of Chapman v. Spiller, (e) however, the court of queen's bench — in deciding that a purchaser at a sheriff's sale, who had sold his bargain, was not liable to his vendee, although it turned out that the sheriff had no right to sell the goods — stated, that they wished to guard against being supposed to doubt the rioht to recover back money paid upon an ordinary purchase of a chat- tel, where the purchaser did not have that for which he had paid. So far, therefore, as authority goes, there would seem to be a con- flict of opinion as to whether the action for money had and received is maintainable in such circumstances. But the view of this ques- tion, which was intimated by the court of queen's bench in the case referred to, certainly appears to be more consistent with principle, than that expressed by the court of exchequer in Morley v. Atten- borough. (/) 2. With reference to warranties as to quality upon sales of goods, the general rule is, that the law does not imply a warranty as to their goodness or quality. (/ J ) The rule is, caveat emptor, (/ 2 ) (c) 14 Q. B. 621, 624. Conn. 428; West v. Cunningham, 9 Por- (/) And see Robinson v. Anderton, ter, 104; Moses v. Mead, 1 Denio, 378; Peake, 94, where it was heldby Lord Ken- Wright v. Hart, 18 Wend. 449 ; Cozzinsw. yon, that one who had purchased fixtures Whitaker, 3 Stew. & Port. 322; Defreeze from the tenant of a house — whichfixtures u. Trumper, 1 John. 274 ; Snell v. Moses, belonged to the landlord and were after- 1 John. 96 ; Neuville o. Nourse, 3 Camp, wards paid for by the purchaser to bim, — 351 ; Taymon v . Mitchell, 1 Md. Ch. 496 ; could recover from his vendor the money Swett v. Shumway, 102 Mass. 369. In paid to him, in an action for money had South Carolina and Louisiana, a sale for and received ; although such vendor had a sound price is understood to imply a not been guilty of fraud, he himself having warranty of soundness against all faults paid a former tenant for the fixtures in and defects. Timrod v. Shoolbred, 1 Bay, question, as tenant's fixtures. 324 ; Whitefield u. McLeod, 2 Bay, 380 (Z 1 ) [Mixer u. Coburn, 11 Met. 559 ; Lester v . Graham. 1 Const. Rep. 182 Johnston v. Cope, 3 H. & John. 89 ; Crawford v. Wilson, 2 Const. Rep. 353 Seixas v. Woods, 2 Caines, 48 ; Holdcn Dewees v. Morgan, 1 Martin (Louis.), 1 v. Dakin, 4 John, 421 ; Dean v. Mason, 4 State v. Gaillard, 2 Bay, 19 ; Melancon v. (/ 2 ) Mixer v. Coburn, 11 Met. 559; v. Taylor, 29 Maine, 508 ; Beirne v. Dord, Johnston v. Cope, 3 H. & John. 89 ; 2 Sandf. 89 ; Otts v. Alderson, 10 Sm. & Sexias v. Woods, 3 Caines, 48 ; Winsor M. 476. This rule does not apply to a v. Lombard, 18 Pick. 59 ; Holden v. Dakin, sale of goods where the buyer has no op- 4 John. 421; Dean o. Mason, 4 Conn, portunity of inspection. Jones v. Just, L 428 ; West v. Cunningham, 9 Porter, 104 ; R. 3 Q. B. 197.] Moses v. Mead, 1 Denio, 378 ; Kingsbury WARRANTY. 631 and, in general, no liability is incurred by reason of bad quality or defects, unless there be an express warranty quality or P ' , , N soundness. or fraud. (#) Thus, in Parkinson v. Lee, (K) the action was upon an alleged warranty, that hops sold by the defendant to the plain- tiff were good, sound, and merchantable. The hops in case of were sold by sample, with a warranty that the bulk answered the sample ; but there was no other warranty. There was a latent defect in the hops, not known to the vendor ; and the court held that he was not liable, although the hops were not mer- chantable ; for no promise to that effect was to be implied. And so, although a sound price, as it is termed, be given for a horse, there is no implied promise or warranty that the horse is sound. (€) Nor is there any implied warranty upon an exchange of goods. And, therefore, where a customer who had bought from . ,i or exchange. a wine merchant a quantity of burgundy of excellent quality, some time afterwards procured him to exchange a portion of it for other wine ; Lord Ellenborough held, that although the burgundy, when exchanged, had become sour, the wine merchant was without remedy, there having been no fraud or express war- ranty. (/) It appears that, at one time, some doubt was entertained on the question whether, in the case of goods ordered and supplied for a particular purpose, there is an implied warranty that they shall be reasonably fit and proper for that purpose. But, in Jones v. Bright, (Jc) — which was the case of a purchase of copper, ordered Robichaux, 17 La. Rep. 97. See Bailey v. the article. Smith v. Rice, 1 Bailey, 648. Nickols, 2 Root, 407 ; 2 Stark. Ev. (5th See Thompson v. Lindsay, 3 Brev. 305.] Am. ed.), 901, n. (1). But this implied war- (g) Stuart v. Wilkins, 1 Dougl. 20, ranty does not extend to defects which are Parkinson v. Lee, 2 East, 314 ; and see apparent, and which might be discovered Hill v. Balls, 2 H. & N. 299 ; Jones v. by simple inspection, unless fraud has been Bright, 5 Bing. 533. [The rule of caveat employed to conceal them. Richardson v. emptor does not apply to cases of fraud. Johnson, 1 La. An. 389 ; Dillard v. Moore, Irving v. Thomas, 18 Maine, 418 ; Otts v. 2 Eng. 166. Nor to those of which the Alderson, 10 Sm. & M. 476.] buyer is informed, or could have informed (A) 2 East, 314 ; and see per Tindal C. himself. Whitefield v. McLeod, 2 Bay, J. Budd v. Eairmaner, 8 Bing. 52. 380. A sound price only implies a war- (t) Per Grose J. Parkinson v. Lee, 2 ranty of soundness, but not that the article East, 314, 322. is worth the price paid. And the unsound- (j) LaNeuville v. Nourse,3 Camp. 351. ness must materially affect the value of [k) 5 Bing. 533 ; Bluett v. Osborne, 1 Stark. 384. 632 SUBJECT-MATTER OF CONTRACTS. by the plaintiff of the defendant for sheathing a vessel, and supplied Warranty by the defendant, the manufacturer of the copper, with implied m knowledge of the purpose for which it was bought ; the articles or- court held that, — the copper having turned out, on dered for a . '. , Fr pi,. , particular trial, to be detective for the purpose of sheathing, — the purpose, defendant was liable on a count adapted to these facts, as upon an implied warranty ; although no fraud was imputed to him, and although the copper was inspected by the plaintiff at the time of the sale. (& 1 ) So, in Gray v. Cox, (J) Abbott C. J. said, " that, on the trial, it occurred to him, that if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose ; and that he was strongly inclined to ad- here to that opinion, but some of his learned brothers thought dif- ferently." And the following may now be considered as the settled rule on this subject, namely : that if a man purchase goods of a tradesman, without in any way relying upon the skill and judgment of the ven- dor, the latter is not responsible for their turning out contrary to his expectation ; but that, if the tradesmen be informed at the time the order is given, of the purpose for which the article is wanted ; and the buyer relies upon the seller's judgment, the latter impliedly warrants that the thing furnished shall be reasonably fit and proper for the purpose for which it is required, (to) And it would seem, (k 1 ) [Walton v. Cody, 1 Wise. 420 ; warranty that it shall he of a medium Brenton v. Davis, 8 Blackf. 317; Brown quality of its kind. Brown v. Sayles, 27 v. Edginton, 2 Man. & Gr. 279 ; Chambers Vt. 227.] v. Crawford, Addison, 150. See Howard (1) 4 B. & C. 108, 115; and see Laing v. Hoey, 23 Wend. 350 ; Moses v. Mead, 1 v. Fidgeon, 4 Camp. 169 ; S. C. 6 Taunt. Denio, 378 ; Leflore v. Justice, 1 Sm. & 108. M. 381; Gallagher v. Waring, 9 Wend. (m) Biggev. Parkinson (in Cam. Scac), 20 ; Sartup v. M'Donald, 2 Scott N. R. 7 H. & N. 955 ; 31 L. J. Exch. 301, 303 ; 485 ; Misner v. Granger, 4 Gilman, 69 ; per Tindal C. J. Brown v. Edgington, 2 Whitmore v. The South Boston Iron Co. M. & G. 279, 290 ; 2 Scott N. R. 496, 504 ; 2 Allen, 58. In case of an executory con- Shepherd v. Pybus, 3 M. & G. 868 ; 4 tract to furnish an article for a certain pur- Scott N. R. 434; [Jones r. Just, L. R. 3 pose, the article may be returned within a Q. B. 202, 203 ; Cunningham v. Hall, 4 reasonable time after it has been found not Allen, 273. In Beals v. Olmstead, 24 Vt. to satisfy the contract, although the con- 114, it was said, that if an article is tract contains no stipulation for such re- bought for a particular use, and the vendor return. Freeman <;. Clute, 3 Barb. 424 ; knew that the vendee would not buy an Park o. Morris &c. Co. 4 Lansing, 103. inferior article, the sale of the article for There is in every contract to manufacture the particular use, ordinarily implies a an article for a fixed price, an implied warranty that it is fit for the use. Whit- WARRANTY. 633 that the liability of the vendor in this latter case is the same whether he be also the manufacturer of the article or not ; (m 1 ) and whether the vendee has or has not had an opportunity of in- specting the goods purchased, — provided the defect be one which cannot be discovered on inspection, but only on trial, (m) So, if goods are sold as being of a particular description, this will amount to a warranty that they answer such descrip- or of % T)3.r _ tion. (m 2 ) Thus, where the defendant sold an un- ticuiar de- stamped bill of exchange, which purported to be a sonp10 foreign bill ; and it afterwards turned out that the bill was not a foreign bill, and that, therefore, it was worthless, not being stamped ; it was held that the purchaser might recover back the price, because the article did not answer the description of that which was sold, (re) So, where the agent of A. sold a parcel of turnip seed to B., and gave the following sold note : " Sold to B., for A., fourteen quarters of Skirving's Sweedes at 17s. per bushel ; " it was held, that this amounted to a warranty that the seed was Skirving's Sweedes. (o) So where an agreement for the sale of oil, described it as " foreign rape oil warranted only equal to samples ; " it was held, that this description was not complied with, by a tender of oil which was not " foreign rape oil," although it was equal in quality to the samples, (p) So, where a ship was advertised for sale as " copper-fastened ; " it was held that this was a warranty that she was so, according to the understanding of the trade ; although the vendee had had an opportunity of examining her. (j) And so the more v. The South Boston Iron Co. 2 v. Gratz, 3 Rawle, 168. See Hogins v. Allen, 58 ; Dutton v. Gerrish, 9 Cush. 89 ; Plympton, 11 Pick. 99; Borrekins v. Brown v. Sayles, 27 Vt. 227 ; Hoe v. San- Bevan, 3 Eawle, 23 ; Whitman v. Freese, born, 21 N. Y. 552. But see Dickson v. 23 Maine, 212 ; Mixer v. Coburn, 11 Met. Jordan, 7 Ired. 166, in which it appeared 562 ; Carson v. Baillie, 19 Penn. St. 375.] that a person sent to a tradesman for a (n) Gompertz v. Bartlett, 2 E. & B. rope for a particular use, and it turned 849. out not fit for the purpose, and it was (o) Allans. Lake, 18 Q. B. 560. held that there was no warranty. See (p) Nichol v. Godts, 10 Exch. 191 ; and Stevens v. Smith, 21 Vt. 90.] see Josling v. Kingsford, 13 C. B. N. S. (m 1 ) [But see Misner v. Granger, 4 Gil- 447. man, 69 ; Leflore, v. Justice, 1 Sm. & M. (g) Shepherd v. Kain, 5 B. & Aid. 240. 381 ; Howard v. Hoey, 23 Wend. 351 ; [A statement of the quality of an article in Hart v. Wright, 17 Wend. 267; Jones v. an advertisement does not amount to a Just, L. R. 3 Q. B. 203.] warranty, in a case where the purchaser (m 2 ) [It is sufficient, if the goods are, in did not rely upon the advertisement, but specie, that for which they are sold, and upon his own judgment after an examina- are merchantable under the denomination tion. Calhoun v. Vechio, 3 Wash. C. C. affixed to them by the seller. Jennings 165. See Henshaw v. Robins, 9 Met. 83, 634 SUBJECT-MATTER OF CONTRACTS. description of an intended work or publication, such as a book or map, in a book of subscriptions or prospectus, amounts to an under- taking that the work shall be conformable to the account so given of it. (r) But, in such cases, the prospectus or advertisement must be referred to or incorporated in the contract of purchase, or it will not amount to a warranty, (s) It is likewise held, that where there is a contract to supply goods of a particular description, and the buyer has not had an opportunity of inspecting the goods ; (s 1 ) they must not only, in fact, answer the description, but must also be saleable or merchantable under that description. («) Thus, on the sale of a quantity of " waste silk," then on its passage from the continent, it was proved that the silk was not of a quality saleable under the denomination of waste silk, a fact which appeared on an examination of the silk when it reached the plaintiff. And Lord Ellenborough said : "lam of opinion that, under such circumstances the purchaser has a right to expect a sale- able article, answering the description in the contract. Without any particular warranty, this is an implied term in every such con- tract. Where there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply. He cannot, without warranty, insist that it shall be of any particular quality or fineness ; but it shall be considered that both parties intended, that it should be saleable in the market under the denomination mentioned in the contract between them." (u) And so, where A. bought of B. a cargo of " Calcutta linseed, tale quale ; " it was held that the con- tract was not satisfied by the delivery of linseed, coming from Cal- cutta, but which contained so large an admixture of other seeds, as to have lost its distinctive character of " Calcutta linseed." (y~) 86, 87.] A warranty in a policy that a 456; Hastings v. Lovering, 2 Pick. 220. ship is American, has heen held to mean See Moses v. Mead, 1 Denio, 378 ; Hart v. that she is the property of an American, Wright, 17 Wend. 267.] not that she is American built. Wilson v. (t) Jones v. Just, L. Rep. 3 Q. B. 197, Backhouse, Peake Add. Ca. 119. 205 ; and see per Willes J. delivering the (r) Paton v. Duncan, 3 C. & P. 333 ; judgment of the court of exchequer Teesdale v. Anderson, 4 C. & P. 198. chamber, in Morley v. Gregson, L. B. 4 (s) Freeman v. Baker, 5 B. & Ad. 797, Ex. 49, 52 ; [Swett v. Shumway, 102 Mass. 805. 365 ; Jones v. Just, L. R. 3 Q. B. 197, 205.] (s 1 ) [2 Kent, 479 ; Gallagher v. Waring, («) Gardiner v. Gray, 4 Camp. 144 ; 9 Wend. 20 ; Jennings v. Gratz, 3 Rawle, [Whitmore v. The South Boston Iron Co. 168 ; Hanks v. M'Kee, 3 Litt. 227 ; Osgood 2 Allen, 58, 59.] v. Lewis, 2 H. & Gill, 495 ; Hyatt v. Boyle, (w) Wieler v. Schilizzi, 17 C. B. 619. 5 Gill & J. 110 ; Wright v. Hart, 18 Wend. WARRANTY. 635 But where the purchase is of a defined and well-known article, the vendor performs his part of the contract by sending sale of spe- that article ; and it is the vendee's concern, whether it ciflc article - answers the purpose for which he wanted to use it or not. (x) And where a tradesman contracts with one person, for the sale to him of an article which, to the knowledge of the No liability seller is to be used for a particular purpose by another ; ^^with- the seller is not liable to that other for an iniury caused out ne S H - •> J gence or to him by a defect in the construction of the article, un- fraud- less such defect was due to the negligence of the seller in making the article, or was fraudulently concealed by him from the pur- chaser, (y) So, where a manufacturer contracts to deliver a manufactured article at a distant place ; and the article, when delivered Purchaser to the carrier for the purpose of being conveyed, is of a ^terioration merchantable quality ; the purchaser is subject to, and eausedb' 7 must bear the risk of any deterioration which is necessa- c ° n yeyance •i , . . of the thing nly consequent upon the transmission. (z) sold. Where a publican agrees with a brewer to take all his beer of him, the brewer is bound to supply him with beer of a sale of pro- fair merchantable and wholesome quality, (a) And it vl8I0n3 ' &c - appears that in contracts for the sale of provisions, by dealers and common traders in provisions, there is an implied warranty that they are wholesome (b) (x) Ollivant v. Bailey, 5 Q. B. 288 ; Chanter v. Hopkins, M. & W. 339, 406 ; [Wright v. Hart, 18 Wend. 449.] Qimre, whether this rule applies to the case, where the subject-matter of the contract is a machine, and the purchaser has had an opportunity of inspecting the several parts which, when put together, will constitute the machine, but has not seen the machine itself. See per Erie C. J. Mallan Radloff, 17 C. B. N. S. 588, 600. (y) George v. Skivington, L. Rep. 5 Ex. 1 ; Longmeid v. Holliday, 6 Exch. 761 ; Langridge v. Levy, 2 M. & W. 5 1 9 ; [French v. Vining, 102 Mass. 132, 136 ; McDonald v. Snelling, 14 Allen, 295 ; Thomas v. Win- chester, 2 Selden, 397.] (z) Bull v. Robinson, 10 Exch. 342, 346. (a) Holcombe v. Hewson, 2 Camp. 391 ; Cooper v. Twibill, 3 lb. 286. (6) See 3 Bl. Com. 166 ; [Van Bracklin v. Fonda, 12 John. 468 ; Emerson v. Brig- ham, 10 Mass. 197 ; Marshall v. Peck, 1 Dana, 612; Osgood v. Lewis, 2 H. & Gill, 495 ; 2 Kent, 479 ; Humphreys v. Comline, 8 Blackf. 508 ; Moses v. Mead, 1 Denio, 378 ; Hoover v. Peters, 18 Mich. 51 ; Divine v. McCormick, 50 Barb. 116; Davis v. Murphy, 14 Ind. 158 ; French v. Vining, 102 Mass. 125, 136 ; Jones v. Just, L. R. 3 Q. B. 202.] But see Emmerton v. Mat- thews, 7 H. & N. 586 ; 31 L. J. Exch. 139. It would seem, however, that this case, so far as it contradicts the proposition stated in the text, is not law. See Bigge v. Par- kinson (in Cam. Scac), 7 H. & N. 955; 31 L. J. Exch. 301. [It has been held, that there is a very plain distinction between selling provisions for "domestic use," and selling them as articles of mer- 636 SUBJECT-MATTER OF CONTRACTS. But it is clear that, where a person sells provisions, who is not a professed buyer and seller of such commodities, he is not liable un- less there be evidence of a warranty or of fraud, (c) It seems, moreover, that the custom of any particular trade may Warranty establish an implied warranty, between parties who trans- custom of° m act business therein : it being presumed, in the absence trade, f evidence to the contrary, that the dealings of the par- ties were regulated by the custom, (cf) Thus, in an action on the sale of sheep sold as stock, there was evidence that, by the custom of the trade, stock were understood to be sheep that were sound ; vvhereupon the jury were directed, that this amounted to an implied warranty that they were sound ; and this direction was not ques- tioned, when the case afterwards came before the court of king's bench, (e) But where there is an express warranty, it cannot be restrained butoniyin or varied by a custom of trade. Thus, on a warranty of expresswar * " prime singed bacon," evidence is not admissible of a ranty; practice in the bacon trade, to receive bacon a certain degree tainted, as prime singed bacon ; nor of a practice to preclude the purchaser from all remedy, if he do. not discover and point out the defect by a certain day. (/) or sale by And a sa ^ e °^ g °ds by sample is, in effect, a sale sample. thereof with warranty, (^r) chandise, which the buyer does not intend warranty of title from a custom of trade, to consume, but to sell again ; in the latter Morley v. Attenborough, 3 Excb. 500 ; 18 case there is no implied warranty. Winsor L. J. Exch. 148 ; 13 Jur. 282. v. Lombard, 18 Pick. 57, 61, 62; Moses (c) Per Heath J. Jones v. Bowden, 4 v. Mead, 1 Denio, 378 ; S. C. 5 Denio, Taunt. 847, 853 ; and see Gray v. Cox, 4 617 ; Emerson u. Brigham, 10 Mass. B. & C. 110, 114. 1 97 ; Hyland v. Sherman, 2 E. D. Smith, (/) Yeats v. Pim, 1 Holt N. P. C. 95 ; 234 ; Goldrich v. Ryan, 3 E. D. Smith, S. C. 6 Taunt. 446. Aliter where the sale 324.] is by sample; Sanders v. Jameson, 2 C.& (c) Burnby v. Bollett, 16 M. & W. 644. K. 557. [See Moses v. Mead, 1 Denio, 378 ; Winsor [g) Parkinson v. Lee, 2 East, 314; v. Lombard, 18 Pick. 61, 62.] Parker v. Palmer, 4 B. & Aid. 387. [On (d) Jones v. Bowden, 4 Taunt. 847 ; a sale by sample, the vendor is responsible [Clark r. Baker, 11 Met. 106. See Hen- that the bulk of the commodity shall be shaw v. Robins, 9 Met. 83 ; Borrekins v. equal in quality to the sample. Andrews Bevan, 3 Rawle, 23 ; Hastings v. Lover- v. Kneeland, 6 Cowen, 354 ; The Oneida ing, 2 Pick. (2ded.) 214; Allan v. Lake, Manuf. Co. u. Lawrence, 4 Cowen, 440; 18 Ad. & El. 560.] See, as to implying a Beebe v. Robert, 12 Wend. 412 ; Boorman WARRANTY. 637 But if there be sale notes, or any other written agreement not re- ferring to the sample, there is no sale by sample, — either because the parties are presumed to abandon the sample as the criterion of the quality of the goods, or, for the more technical reason, that parol evidence cannot be received to add to, or to vary a written agree- ment. (0 1 ) In such a case, therefore, the vendee cannot vacate the v. Jenkins, 12 Wend. 566 ; Williams v. Spafford, 8 Pick. 259 ; Hastings v. Lover- ing, 2 Pick. 219 ; Sands v. Taylor, 5 John. 359; Bradford v. Manly, 13 Mass. 139; Woodworth J. in 20 John. 204 ; Gallagher v. Waring, 9 Wend. 20 ; Borrekins v. Be- van, 3 Rawle, 37 ; Rose u. Beatie, 2 Nott & McCord, 538; Moses v. Mead, 1 Denio, 386; Beime v. Dord, 2 Sandf. (S. C.) 89. In this case it was held, that, to constitute a sale by sample, the contract must be made solely with reference to the sample ; and that upon such a sale there is an im- plied warranty, that the bulk of the goods is equal to the sample iu quality and soundness. See Bradford v. Manly, 13 Mass. 144, per Parker C. J. Every sale of packed cotton is a sale by sample. Boorman v. Jenkins, 12 Wend. 566 ; Beebe v. Robert, 12 Wend. 413 ; Oneida Manuf. Co. u. Lawrence, 4 Cowen, 444 ; Waring v. Mason, 18 Wend. 425; Salisbury v. Stainer, 19 Wend. 159. The mere exhi- bition of samples at the time of sale, is not of itself conclusive evidence of an agree- ment to sell by sample. Waring v. Mason, 18 Wend. 425 ; Beirne v. Dord, 2 Dyer (N. T.), 69. So where the purchaser has an opportunity for a personal examination, and is told by the seller to examine for himself, and does examine the article to be s.old, being hemp in bales, by cutting open as many bales as he chooses; this was held not to be a sale by sample, and that there was no warranty, that the inte- rior of the bales should correspond to the exterior of them. Salisbury v. Stainer, 19 Wend. 159. But in Williams v. Spaf- ford, 8 Pick. 250, the goods were purchased on an examination of specimens taken by the purchaser out of a small aperture in the case in which they were contained, and it was held to be a sale by sample. And in such case, where the article purchased was bought as a seroon of indigo, but the greater part of the contents of the seroon proved to be a different substance, and the remainder to be indigo of a quality infe- rior to the specimen, it was held, that the seller was liable on the warranty, that the article sold was indigo of the same quality as the sample. In this case there was a bill of parcels describing the article as "one seroon of indigo." Without the sample, the purchaser might have held the seller on this description, so far as the ar- ticle was a different substance. Ante, 631, 632, note. If manufactured goods are sold by sample, by a merchant who is not a manufacturer, and both the sample and the bulk of the goods contain a latent de- fect, there is no implied warranty against the defect. Dickinson v. Gay, 7 Allen, 29.] (g l ) [Where, on the sale of articles of personal property, a bill of sale was given, describing the property sold, and receipt- ing for the price, but containing no war- ranty, it was held, that the purchaser could not, in an action of assumpsit, giye parol evidence to prove a warranty. Reed v. Wood, 9 Vt. 285 ; Mumford v. M'Pher- son, 1 John. 414 ; Reed v. Van Ostrand, 1 Wend. 424 ; Wilson v. Marsh, 1 John. 503 ; Batturs v. Sellers, 5 Har. & John. 117 ; 6 lb. 249 ; Salem Ind. Co. v. Adams, 23 Pick. 256 ; Lamb v. Crafts, 12 Met. 353 ; Dean v. Mason, 4 Conn. 432. The writ- ing is supposed to contain the whole con- tract between the parties. Randall y. Rhodes, 1 Curtis C. C. 90 ; Niles v. Cul- ver, 8 Barb. 205. Where a bill of sale of a vessel is executed between the parties, containing a warranty of soundness, parol evidence is inadmissible to prove an addi- tional warranty of soundness. Pende u. 638 SUBJECT-MATTER OF CONTRACTS. contract, if the goods are conformable to the written warranty, al- though they differ from the sample shown to him at the time of the Fobes, 1 Dev. & Bat. 250. See, also, Smith v. Williams, 1 Car. Law, 363 ; Peltier v. Collins, 3 Wend. 459 ; Wood v. Ashe, 1 Strobh. 407. But in Bradford w. Manly, 13 Mass. 139, where a bill of parcels was given by the seller to the purchaser, describing the article sold as a certain quantity of "cloves," the purchaser was allowed to •prove that the sale was by sample, and that the article delivered was inferior in quality to the sample. So in Williams v. Spafford, 8 Pick. 250, there was a, bill of parcels in which the property sold was described as " one seroon of indigo." Proof was admitted to show that the sale was by sample, and that part of the article delivered was a different substance and the residue was of a quality inferior to the sample. In Hogins u. Plympton, 11 Pick. 97, there was a written agreement of the vendor, by which he undertook to ship to the vendee a certain quantity of " good fine wine," and acknowledged the receipt of payment, and it was held, that this de- scription was too indefinite to amount to a warranty that the wine was of any par- ticular quality, and that the instrument in which they were used was not the contract of sale, as it presupposed a sale already made, and was of itself only a promise to ship the wine, &c. ; and in an action by the vendee to recover of the vendor for delivering wine inferior to the description, parol proof, offered by the vendor, was ad- mitted to show the actual terms of the sale, and that he shipped the wine selected by the vendee. Bradford v. Manly was cited in this case, and considered in point. The case of Wallace v. Rogers, 2 N. H. 506, was decided on similar principles. In Hersom v. Henderson, 21 N. H. 224, where a bill of sale of a horse was offered in ev- idence, containing also a receipt for the price, parol evidence was admitted to show that the vendor, at the time of the sale, warranted the horse to be sound, as it did not contradict or vary the writing. Allen v. Pink, 4 M. & W. 140, was cited in support of this decision, and it seems to justify it. See ante, 150, note (e), 636, note (g) ; Hazard v. Loring, 10 Cush. 267 ; Boardman v. Spooner, 13 Al- len, 353; Frost v. Blanchard, 97 Mass. 155 ; Atwater v. Clancy, 107 Mass. 375. In Batturs v. Sellers, 5 Har. & J. 117 ; 6 lb. 249, it was held, that the bill of parcels in that case was written evidence of the contract, and could not be added to or varied by parol testimony. So in Yates v. Pym, 6 Taunt. 446, the property sold was described, in a sale-note, as " prime singed bacon ; " this was decided to amount to a warranty, and, being in writing, could not be added to by oral evidence. These last two cases were referred to by Wilde J. in Henshaw v. Robins, 9 Met. 87, with ap- probation, so far as they decide, that the description in the bill of parcels and sale- note amounted to a warranty ; but he ad- ded : " Whether these decisions are well founded as to the admissibility of oral testimony in such cases, we are not called upon to consider in the present case ; as here no evidence was offered to control or vary the description in the bill of parcels. But we do hold, that the description in a bill of parcels imports a warranty, as before remarked. It is a representation and dec- laration that the article sold is the article described." In the subsequent case of Lamb v. Crafts, 12 Met. 353, it appeared that C, whose business was that of collect- ing rough tallow and preparing it for mar- ket, made an oral agreement with L. to furnish him with a certain quantity of tal- low, of good quality and color, at a certain price per pound, and to deliver it at a cer- tain place, and afterwards furnished and delivered the specified quantity, and made and signed bills of parcels in which the article was denominated " tallow," with- out other description or designation ; L. accepted the tallow, and paid the agreed price for it. Upon these facts, it was held, that the agreement was within the statute of frauds, and that L. could not recover for a breach of warranty made by C. at the time of the agreement, that the tallow WARRANTY. 639 sale ; (A) whilst, on the other hand, an action lies on the written warranty, if the goods do not answer the description therein men- tioned, although they agree with the sample which was shown when they were bought, (i) And although where goods are sold by sample, there is in general no implied warranty that they are merchantable ; still such war- ranty is not excluded, except as to matters which could be judged of by the sample. (_?') The maxim, caveat emptor, is so strictly construed, that it has given rise to the adoption into our law of a principle of the civil law — simplex commendatio non obligat. (y 1 ) representa- And the rule to be derived from all the cases is, that where, upon the sale of goods, the purchaser is satisfied without re- quiring a warranty, he cannot recover upon a mere representation of the quality by the seller, unless he can show that such represen- tation was bottomed in fraud. (&) Thus, in many instances, even the positive representation of the seller is not, from the nature of the should be of good quality and color ; and also, that, if the delivery of the tallow by C. and the acceptance and payment by L. were to be regarded as constituting one entire contract of sale, yet there was no contract of warranty, because the bill of parcels, which was the only written mem- orandum signed by C, specified none, and contained no description or denomina- tion, from which a warranty could be in- ferred. In this case, parol evidence of the warranty was excluded, because it formed a part of the original agreement, all of which was within the statute of frauds ; and, not being in writing, none of it could be enforced, and no warranty accompanied the actual delivery of the tallow, and the giving and acceptance of the bills of par- cels. Parol proof is admissible to show a usage of trade as to the mode of making sales, the written memorandum and the bought and sold note, being silent upon the subject; Boorman v. Jenkins, 12 Wend. 567 ; and to prove that the vendor in- formed the vendee at the time of sale of the defect charged. Schuyler v. Russ, 2 Caines, 202.] (A) Meyer v. Everth, 4 Camp. 22, 145. (i) Tye v. Fynmore, 3 Camp. 462. (j) Morley v. Gregson (in Cam. Scac), L. R. 4 Ex. 49. (i 1 ) [See Henshaw v. Robins, 9 Met. 83, 88, per Wilde J. ; Tyre v. Causey, 4 Har- ring. 425 ; Hawkins v. Berry, 5 Gilman, 36 ; 1 Sugd. V. & P. (8th Am. ed.) 2, 3, and notes ; Taylor v. Fleet, 4 Barb. 102 ; Haz- ard v. Iwin, 18 Pick. 95, 105. The owner of a horse, which had the heaves, and was worth nothing, in the course of a negotia- tion for an exchange, concealed the defect and affirmed that the horse was worth $100; and the other party having no knowledge of the defect, was thereby in- duced to make the exchange, it was held, that this was sufficient to sustain an action on the case for deceit. Stevens v. Fuller, 8 N. H. 463. See Hanson v. Edgerly, 29 N. H. 343; Cardwell «. McClelland, 3 Sneed (Tenn.), 150.] (k) Per Cur. Ormrod v. Huth, 14 M. & W. 651, 664, in Cam. Scac. ; Chandler v. Lopus, Cro. Jac. 4 ; Roll. Abr. 101 ; Pick- ering v. Dowson, 4 Taunt. 779 ; per Bul- ler J. Pasley v. Freeman, 3 T. R. 5, 7, 8 ; and per Williams J. delivering judgment (in Cam. Scac), Behn v. Bumess, 3 B. & S. 751, 753, 755. [See M'Farland v. New- man, 9 Watts, 55.] 640 SUBJECT-MATTER OF CONTRACTS. case, to be regarded as a warranty, but merely as an expression of his belief and opinion on a matter of which he could have no certain knowledge, and on which the purchaser was equally capable of forming an opinion. (& 1 ) As where the defendant, not knowing the age of a horse, but having a written pedigree which he had received with him, sold him as a horse of the age stated in the pedigree, at the same time stating, that it was his only source of information : Lord Kenyon held, that this was no warranty. (J) And so where, on a sale of pictures, the defendant handed to the plaintiff the fol- lowing bill of parcels : " Four pictures, views in Venice, Canaletto, 1601: " it was held to have been properly left to the jury to say, whether the defendant had contracted that the pictures were those of the artist named ; or whether his name had been used, merely as a matter of description or intimation of opinion, (m) (k l ) [To make an affirmation, at the time of sale, a warranty, it must appear to have been so intended, and not to have been a mere expression of opinion. Ervvin v. Maxwell, 3 Murph. 246 ; M'Farland v. Newman, 9 Watts, 55 ; House v. Fort, 4 Blackf. 293 ; Baird v. Matthews, 6 Dana, 129; Foggart v. Blackweller, 4 Ired. (Law) 238 ; Morrill v. Wallace, 9 N. H. Ill ; Bond v. Clark, 35 Vt. 577; Murphy v. Gay, 37 Missou. 535 ; Wilbur v. Cart- wright, 44 Barb. 536 ; Foster v. Caldwell, 18 Vt. 176 ; Ayres v. Parks, 3 Hawks, 59 ; Inge o. Bond, 3 Hawks, 101 ; Whitney v. Sutton, 10 Wend. 411 ; Coolidge v. Brig- ham, 1 Met. 552 ; Tyre v. Causey, 4 Har- ring. 425 ; Humphreys v. Comline, 8 Blackf. 508 ; Hillman v. Wilcox, 30 Maine, 170; Hastings v. Lovering, 2 Pick. 214; Bryant v. Crosby, 40 Maine, 18; Davis u. Sims, Hill & Denio, 234. An affirmation of the soundness of a horse, made bona fide at the time of sale, does not necessarily amount to a warranty. Westmoreland v. Dixon, 4 Hayw. 223. See Thompson o. Tate, 1 Murph. 97 ; Bradford v. Bush. 10 Ala. 386. A state- ment by the vendor of a horse, on being asked about the horse's eyes, that they were as good as any horse's eyes in the world, does not amount to a warranty. House a. Fort, 4 Blackf. 293. See Con- nersville v. Wadleigh, 7 Blackf. 102. So, where the vendor of a horse told the pur- chaser before the sale that he was sure that the horse was perfectly safe, kind, and gentle in harness, this was held to create no war- ranty, being but a bare affirmation, of quality. Jackson o. Wetherill, 7 Serg. & B. 480. See Shepherd v. Temple, 3 N. H. 455 ; Stevens v. Fuller, 8 N. H. 463. To give to an affirmation, made by the seller at the time of the sale, of the quality or condition of the thing sold, the character of a warranty, it must be made for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase, which affirmation is so received and relied upon by the put chaser. Hawkins v. Berry, 5 Gilman, 36 ; Ender v. Scott, 11 111. 35; Humphreys v. Comline, 8 Blackf. 508 ; House v. Fort, 4 Blackf. 296. If the vendor's statements form the sole basis of a sale, his declarations are or- dinarily to be regarded as a warranty. Beals v. Olmstead, 24 Vt. 114. Whether an affirmation is intended for a warranty or to express a mere opinion, is a question for the jury on the proof. Humphreys v. Comline, 8 Blackf. 508 ; Whitney v. Sut- ton, 10 Wend. 411 ; Foster v. Caldwell, 18 Vt. 176 ; Bradford v. Bush, 10 Ala. 386 ; Foggart o. Blackweller, 4 Ired. 238. So, even where the word "warrant" is used. Starnes v. Envin, 10 Ired. 226.] (I) Dunlop v. Waugh, Peake, 123. (m) Power v. Barham, 4 A. & E. 473. And see Jeudwine v. Slade, 2 Esp. 572. WARRANTY. 641 So, where a horse was sold under the following written war- ranty : " To be sold, a horse, five years old : has been constantly driven in the plough — warranted : " it was held, that the warranty applied to soundness only, (n) So, where the contract was in these words : " Received of Mr. B. 101. for a gray four-year-old colt, warranted sound in every respect ; " the court were of opinion, that the warranty was confined to the soundness of the pony ; and that the part of the receipt which referred to its age, was mere matter of description, by which the seller was not bound, unless it appeared to have been false within his knowledge. (0) And so, where the plaintiff sold to the defendant, "a cargo of good merchantable oil," then being the cargo of a certain vessel, and consisting of so many casks ; it was held that this contract contained no warranty, that the casks were fit and proper casks for the purpose of containing good merchantable oil. (jp) (n) Richardson v. Brown, 1 Bing. 344. (0) Per Tindal C. J. Budd v. Fairmaner, 8 Bing. 48, 52. (p) Gower v. Dadelszen, 4 Scott, 453. [In Henshaw v. Robins, 9 Met. 83, a bill of parcels was given stating, that " Henshaw & Co. bought of Thomas W. Sears & Co. two cases of indigo, $272.35 ; " this bill was considered a warranty, that the goods sold were what they were thus described or designated to be. And, it appearing that the article sold was not indigo, the war- ranty was held to be broken. The same rule applies, though the goods are exam- ined by the purchaser, at or before the sale, if they are so prepared, and present such an appearance, as to deceive skillful dealers. In Hastings v. Lovering, 2 Pick. 214, the description, inserted in a. bill of parcels and held to be a warranty, was, " Sold E. T. Hastings two thousand gallons prime quality winter oil." The description thus inserted in the bill of parcels is evidence that the thing sold was agreed to be such as represented. The question was very fully considered in Osgood v. Lewis, 2 H. & Gill, 495, and in Borrekins v. Bevans, 3 Rawle, 23. The principle maintained by these cases is, that the description con- tained in a bill of parcels of goods sold is evidence of the terms of the contract of vol. 1. 41 sale, and so imports a warranty that the goods are the goods described, and that they substantially agree with the terms of the description. Hogins v. Plympton, 11 Pick. 97 ; Winsor u. Lombard, 18 Pick. 60. See Baird v. Matthews, 6 Dana, 131 ; Willard 11. Stevens, 24 N. H. 271 ; Mason v. Rowe, 16 Vt. 525 ; Cramer v. Bradshaw, 10 John. 484 ; Bradford v. Manly, 13 Mass. 139; Hibbert v. Shee, 1 Peters, 317; Towell u. Gatewood, 2 Scam. 24 ; Harris v. Johnson, 3 Cranch, 311. In Osgood v. Lewis, the words in the bill of parcels were " winter pressed sperm oil." This was treated as a warranty that the oil was winter pressed. So, where wool was sold in sacks, on which and in the invoice, it was described as of a certain quality, the seller was held thereby to warrant that the wool was of that quality. The Richmond Trading & Manuf. Co. u. Farquar, 8 Blackf. 89. But in a late case in Penn- sylvania, where a sale, by sample, was made of tobacco, which was stated in the bill of parcels, to be " superior sweet- scented Kentucky leaf tobacco," and the tobacco sold was Kentucky leaf tobacco, but was not superior or sweet-scented, and was inferior to the sample, the purchasers were held not entitled to damages for breach of warranty. Fraley u. Bispham, 642 SUBJECT-MATTER OF CONTRACTS. By the 25 & 26 Vict. c. 88, s. 19, it is enacted, that in every m case in which at any time after the 31st day of December, Warranty J implied from 1863, any person shall sell or contract to sell (whether trade-mark: ... . by writing or not), to any other person, any chattel or article with any trade-mark thereon, or upon any cask, bottle, stop- per, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing together with which such chattel or article shall be sold or contracted to be sold, the sale or contract to sell shall in every such case be deemed to have been made, with a warranty or contract by the vendor to or with the vendee, that every trade-mark upon such chattel or article, or upon any such cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing as afore- said, was genuine and true, and not forged or counterfeit, and not wrongfully used, unless the contrary shall be expressed in some writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee. And by sect. 20 of the same statute, it is enacted : that in every From state- case m wn ' cn at anv ^ me after the 31st day of Decem- mentasto ber, 1863, any person shall sell or contract to sell manufac- (whether by writing or not), to any other person, any chattel or article upon which, or upon any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing together with which such chattel or article shall be sold or contracted to be sold, any description, statement, or other indica- tion of or respecting the number, quantity, measure, or weight of such chattel or article, or the place or country in which such chat- tel or article shall have been made, manufactured, or produced, the sale or contract to sell shall in every such case be deemed to have been made, with a warranty or contract by the vendor to or with the vendee, that no such description, statement, or other indi- cation was in any material respect false or untrue, unless the con- 10 Barr, 320. See Jennings u. Gratz, 3 No. 1 and No. 2. Winsor v. Lombard, 18 Rawle, 168; Hyatt u. Boyle, 5 Gill & J. Pick. 57. A mere description, in a bill of 110. Where a large number of barrels of sale, of the articles sold, as "certain lots mackerel, branded under the inspection of boards and dimension stuff now at and laws as No. 1 and No. 2 mackerel, were about the mills at P." does not amount to sold in the spring, it was held, that the a warranty th at the articles were mer- description of them as such, in the bill of chantable. Whitman v. Freese, 23 Maine, parcels, was not a warranty that the mack- 212. Bills of parcels are open to explana- erel were free from rust, at the time of tion and extension by parol evidence, the sale, although it appeared that mack- Ante, 150,rnote (e).] erel affected by rust are not considered as WARRANTY. 643 trary shall be expressed in some writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee. It is clear that no particular form of words is necessary to con- stitute a warranty, that is, the word warrant need not „ J , . No particular be used, (q) And, accordingly, a bare representation form neces- or assertion as to the quality of the goods, may amount stituteVwar- to a warranty, if there be nothing to negative that it was ranty ' understood to be such. Thus, in Cave v. Coleman, (r) an asser- tion by the vendor of a horse, in the course of conversation and dealing, and before the bargain was complete, that " the vendee might depend upon it that the horse was perfectly quiet and free from vice," was held to be a warranty to that effect. And if a per- son, at the time of selling a horse, say, " I never warrant, but he is sound as far as I know ; " an action lies if the horse was unsound, and the seller was aware of the fact, (s) (q) Per Best C. J. Jones v. Bright, 5 Bing. 533, 543 ; and see Russell v. Nicol- opulo, 8 C. B. N. S. 362. [To create an express warranty, the word " warrant " need not be used, nor is any precise form of expression required ; any affirmation of the quality or condition of the thing sold (not uttered as matter of opinion or be- lief), made by the seller at the time of sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and in- ducing him to make the purchase, if so re- ceived and relied on by the purchaser, is an express warranty. Osgood v. Lewis, 2 H. & Gill, 495 ; Morrill v. Wallace, 9 N. H. Ill; Roberts v. Morgan, 2 Cowen, 438 ; Beeman v. Buck, 3 Vt. 53 ; Hawkins o. Berry, 5 Gilman, 36 ; Hillman v. Wil- cox, 30 Maine, 170; McGregor v. Penn, 9 Yerger, 74 ; Henshaw v. Robins, 9 Met. 83, 88 ; Whitney v. Sutton, 11 Wend. 441 ; Chapman v. March, 19 John. 290; Cook v. Moseley, 13 Wend. 277 ; Ricks u.Dilla- hunty, 8 Porter, 133 ; Kinley v. Fitzpat- rick, 4 How. (Miss.) 59 ; Anderson v. Bur- nett, 5 lb. 165 ; Towell v. Gatewood, 2 Scam. 24 ; Otts v. Alderson, 10 Sm. & M. 476 ; Bryant v. Crosby, 40 Maine, 18 ; Rogers v. Ackerman, 22 Barb. 134 ; Han- son v. King, 3 Jones Law (N. C.),-419. The purchaser of a cow said to the seller, after the sale, " You said the cow was all right ? " to which the seller replied, " Well, she is all right ; " this was held to be com- petent evidence of a warranty at the time of the sale. Tuttle v. Brown, 4 Gray, 457. The question, whether the words used amount to a warranty, is said to be for the jury in Duffee v. Mason, 8 Cowen, 25; Whitney v. Sutton, 10 Wend. 411; Morrill v. Wallace, 9 N. H. Ill; Chap- man u. March, 19 John. 290; Tuttle v. Brown, 4 Gray, 457. See Waring v. Ma- son, 10 Wend. 425.] (r) 3 M. & R. 2 ; Wood ». Smith, 4 C. & P. 145. In Lomi v. Tucker, 4 C. & P. 15, a, representation that a picture was by Poussin, seems to have been considered to be a warranty that it was so. Admission by letter, of a representation as to a horse's age, &c. ; Salmon v. Ward, 4 C. & P. 211. (s) Wood ». Smith, 2 C. & P. 45. [See Oneida Manuf. Co. v. Lawrence, 4 Cowen, 440 ; 2 Stark. Ev. (5th Am. ed.) 902, note (1). An affirmation by the vendor that a horse was not lame, made at the time of sale, and that he would not be afraid to warrant that the horse was sound every way, as far as he knew, was held to amount to a warranty. Cook v. Moseley 644 SUBJECT-MATTER OF CONTRACTS. So, the sale may either be absolute, with a warranty super- added; or it may be conditional, to be null if the warranty be broken. (£) A general warranty will not extend to guard against defects that are plain and obvious to the senses of the purchaser, and which re- quire no skill to detect them ; as if a horse be warranted perfect, Effect of an< ^ want an ear or a ta iL ( M ) But if, on the sale of a general war- horse, the seller agree to deliver it sound and free from ranty. . ° blemish at the expiration of a specified period, the war- ranty will be broken by a fault in the horse when delivered, al- though such defect existed and was patent at the time of the sale, (x) And as some splints cause lameness, and others do not, a splint is not considered to be one of those patent defects against which a warranty is inoperative ; so that, where the defendant war- ranted a horse sound at the time of the contract, and the horse af- terwards became lame from the effects of a splint which was visi- ble when he was bought, it was held that the warranty was broken. (j/) Where goods are sold with an express warranty, the court will not extend such warranty by inference or implication. (2) And where there is an express written, or, it seems, verbal warranty, 13 Wend. 277. In assumpsit on a war- (u) Bl. Com. 165, 166; Finch L. 189; ranty upon an exchange of horses, the Butterfield o. Burroughs, 1 Salk. 211 ; proof was, that the plaintiff said to the de- Southern v. Howe, 2 Roll. 5. [See Long fendant that he would not exchange, un- v. Hicks, 2 Humph. 305; Schuyler v. Russ, less the defendant would warrant the horse 2 Caines, 202 ; Dillard v. Moore, 2 Eng. to be sound, to which the defendant an- (Ark.) 166; Richardson v. Johnson, 1 La. swered, " he is » sound horse except the An. 369 ; Eisher v. Pollard, 2 Head bunch on his leg." The horse had the (Tenn.),314 ; Mulvany v. Rosenberger, 18 glanders. This was held to be a warranty. Penn. St. 203 ; Hill v. North, 34 Vt. 604 ; Roberts v. Morgan, 2 Cowen, 438. See Williams v. Ingram, 21 Texas, 300; Beeman v. Buck, 3 Vt. 53 ; Ricks v. Dilla- Brown v. Bigelow, 10 Allen, 242. This hunty, 8 Porter, 133. A representation rule does not operate, where the vendor made by a vendor, upon a sale of flour in uses art to conceal, and does conceal such barrels, that it is in quality superfine, or defects. Chadsey v . Greene, 24 Conn. 562.] extra superfine, and worth a shilling a (x) Liddard v. Kain, 2 Bing. 183. [See barrel more than common, coupled with House o. Eort, 4 Blackf. 293 ; Stucky c. the assurance to the purchaser's agent, Clyburn, Cheves, 186; Wilson v. Ferguson, that he may rely upon such representation, Cheves, 190 ; Thompson v. Botts, 8Missou. is a warranty of the quality of the flour, 710; Hambright v. Storer, 31 Geo. 300; and the vendor is liable for any defect, Scarborough u. Reynolds, 13 Rich. 98.] whether he knew it or not. Carley a. (y) Margetson v. Wright, 8 Bing. 454. Wilkins, 6 Barb. 557.] (z) Dickson v. Zizinia, 10 C. B. 602. (t) Bannerman v. White, 10 C. B.N. S. 844, 860. WARRANTY. 645 the vendee is not at liberty to avail himself of any Express war- representations not embodied in the contract, if made ^^ t "°^ by the vendor without fraud, (a) by impiica- t> • ■ 1 ii t ' 0n ' or "y ±>ut where a provision dealer agreed to supply the representa- plaintiffs' ship with troop stores, " guarantied to pass bodied in the survey of the E. I. C.'s officers ; " it was held, that contract - this did not exclude the implied warranty, that the stores should be reasonably fit for the purpose of being used and consumed by the troops during the voyage. (5) And it seems, that if a horse be sold at a repository, and there be a public notice affixed to the walls of the repository, that warranties given there are subject to certain conditions, such conditions will bind the purchaser, even al- though they were not particularly referred to at the time of the sale and warranty, (c) It appears to be now settled that, if goods are sold expressly " with all faults," the seller is not liable to an action in s a ie'"with respect of latent defects, although he was aware thereof allots." at the time of the sale, unless some artifice or fraud was practised, to prevent the vendee from discovering such defects, ( And lastly : that where a bailee seeks to excuse himself, on the ground that the loss arose from the act of God, it must appear that the loss was the immediate result of such act. (p) or act of God. (t) Jones on Bailm. 118; and see per Lord Chelmsford, delivering judgment in Giblin ». M'MulIen, L. Rep. 2 P. C. 317, 336. [In Briggs v. Taylor, 28 Vt. 180, Mr. Chief Justice Redfield suggests that the terms " ordinary and common care, diligence and prudence," do not express the idea intended with sufficient clearness and precision ; but that they are somewhat calculated to mislead ; and he refers to several English cases, and quotes the lan- guage in which English judges have ex- pressed the meaning intended by these terms, in a manner less liable to miscon- struction. The learned chief justice adds : " But the English cases all seem to agree in defining ordinary negligence as that which a prudent man does not allow in the conduct of his own affairs, and most of the later cases, where the question has arisen, both English and American, repudiate the old attempt to distinguish these distinct degrees of diligence and the correlative degrees of negligence. In'Wilson v. Brett, 11 M. & W. 113, Baron Eolfe makes some very pertinent remarks upon this subject. ' I said I could see no difference between negligence and gross negligence, that it was the same thing, with the addition of a vi- tuperative epithet.' " See, also, Austin v. Manchester &c. Railway Co. 10 C. B. 454 ; Steamboat New World v. King, 16 How. (TJ. S.) 474; Duffy. Budd,3B. & B. 177; Riley u. Home, 5 Bing. 217; Batson u. Donovan, 4 B. & Aid. 32 ; Wyld c. Pick- ford, 8 M. & TV. 443 ; Hunter v. Debbin, 2 Q. B. 644.] (k) Jones on Bailm. 119, s. 5. (I) lb. s. 4. (n) Streeter v. Horlock, 7 Moore, 287. (o) Jones on Bailm. 44, 76, 119, s. 7. See Einucane v. Small, 1 Esp. 315 ; Rob- inson v. Ward, R. & M. 276; S. C. 2 C. & P. 59 ; Clarke v. Earnshaw, Gow, 30. (p) Per Heath J. Smith v. Shepherd, cited Abb. Shipp. 9th ed. 315. [In addi- tion to the liability of the bailee to the bailor arising out of the contract between them, the bailee is also liable to third per- sons for injuries done by the property, e.g. animals, which are the subject-matter of the bailment, while under the charge of the bailee. Thus where cattle were placed by the owner in the custody of another for agistment, the latter was held liable for the damages done by their breaking into a neighbor's field and destroying wheat. The owner is not liable in trespass for in- 664 SUBJECT-MATTER OF CONTRACTS. Subject to these general observations, let us now consider the degree of negligence, which will render the bailee responsible in each of the above kinds of bailment. 1. Depo&itum, — being a naked bailment without reward, of goods to be kept by the bailee, — such bailee is liable only for gross neglect ; that is, for omitting to take the same care of the property intrusted to him, as a reason- ably prudent and careful man might be expected to take of his own property, of the like description, (q) But his duty is of a more serious nature, and he becomes re- sponsible for ordinary neglect, if he spontaneously and officiously propose to keep the goods ; (r) or if he change his character as bailee, by taking charge of the goods in consequence of any reward or lucrative contract, (s) And, to exempt a gratuitous bailee from liability, it is not suffi- cient merely to show that he has kept goods deposited with him, in Depositum. What amounts to gross negli- gence in gratuitous bailee. juries so done by his cattle while in the custody of the agister. Rossell v. Cot- tom, 31 Penn. St. 525 ; 1 Esp. N. P. 387, tit. Trespass ; Dawtry v. Huggins, Clay- ton, 33 ; Wales v. Ford, 3 Halst. 276. In Eossell v. Cottom, supra, Thompson J. said : " It is not the ownership of the tres- passing creature, but the possession and use, that raises the liability ; if this were not so, there would of necessity be an end of borrowing and hiring."] (q) Giblin v. M'Mullen, L. Rep. 2 P. C. 317, 339; Doorman v. Jenkins, 2 A. & E. 256 ; 1 Smith L. C. 99 ; Jones on Bailm. 45, 46 ; Coggs u. Bernard, 2 Ld. Raym. 913 ; Finucane v. Small, 1 Esp. 315 ; Myt- ton v. Cock, 2 Str. 1099. [A bailee, fo safe keeping, without reward, is not re- sponsible for the article deposited, without proof that the loss was occasioned by bad aith, or gross negligence. Whitney v. Lee, 8 Met. 91, 93 ; Foster v. Essex Bank, 17 Mass. 479; Story Bailments, § 63, et seq. ; Tracy v. Wood, 3 Mason, 132 ; Knowles v. Atlantic & St. Lawrence R. R. Co. 38 Maine, 55 ; Smith v. Nashua & Lowell R. R. 27 N. H. 86. But it is not necessary that the negligence should be so gross as necessarily to lead to the inference of fraud. Tracy u . Wood, 3 Mason, 132, 134. See Wilson v. Y. & M. R. Road, 11 Gill & J. 58 ; 2 Kent, 559. The question, whether there has been gross negligence, is for the jury, under all the circumstances proved. Doorman v. Jenkins, 2 Ad. & El. 256; Storer v. Gowen, 18 Maine, 174. The nature of the thing bailed, its value, the temptation and facility of stealing it, and the danger of losing it, are to be taken into consideration by the jury. Tracy v. Wood, 3 Mason, 132, 134, 135; 2 Kent, 561. See Philadelphia & Reading R. R. Co. u. Derby, 14 How. (U. S.) 468, 486. The same reasonable care is requisite, in the case of goods coming to one's posses- sion by finding, as in the case of a gra- tuitous deposit. 2 Kent, 568 ; Smith v. Nashua & Lowell R. R. Co. 27 N. H. 86- 93 ; Isaac v. Clark, 2 Bulst. 306. As to the duty of excise officers, to take care of goods seized, after the penalty has been paid, see Hutchins v. Morris, 6 B. & C. 464.] (r) Jones on Bailm. 48 ; see Nelson v. Mackintosh, 1 Stark. 237. (s) Jones on Bailm. 49 ; [Smith u. Nashua & Lowell R. R. Co. 27 N. H.-86.] BAILMENTS. 665 the same manner as he kept his own ; although this degree of care will, generally, repel the presumption of gross negligence (£) 2. Mandatum or commission, where the mandatary undertakes without recompense, to do some act about the thing „,..., ,.,.., ° Mandatum. bailed, or simply to carry it. Here, as in the last case, the bailor derives an advantage from the gratuitous exertions of the bailee ; and, consequently, the latter is bound only to ordinary diligence, and is not liable unless gross negligence be proved against him. (u) Thus, a stage-coach- man is not liable for the loss of a parcel which was intrusted to him to carry without reward, unless there has been great careless- ness in his conduct with reference thereto, (v) So, where a party undertakes the performance of certain work for another gratuitously, an action does not lie against Gratuitous him for omitting to do it, the engagement being nudum bailee, not pactum. Thus a count in a declaration, stating that the nonfeas- plaintifF retained the defendant, who was a carpenter, to repair a house before a given day ; that the defendant accepted the retainer ; but did not perform the work within the time, per quod the walls of the plaintiff's house were damaged, cannot be sup- ported, (x) But if the party undertaking enter upon or commence the work, he will be liable if he injure the promisee, by his gross ABer, if he neglect or wrongful act. («/) thVwork. n (t) Giblin v. M'Mullen, L. Rep. 2 P. C. would be liable. Beardslee v. Richardson, 3 J 7, 339; 1 Smith L. C. 99 ; Rooth v. 11 Wend. 25. No action lies for the prop- Wilson, 1 B. & Aid. 59, 61 ; Doorman v. erty intrusted to the bailee, until there has Jenkins, 2 A. & E. 256 ; Coggs v. Ber- been a special demand ; Hosmer v. Clarke nard, 2 Ld. Raym. 914, 915; [Tracy v. 2 Greenl. 308 ; Brown v. Cook, 9 John. Wood, 3 Mason, 132, 136.] 361 ; White v. Demary, 2 N. H. 546 ; (u) 1 Smith L. C. 103 d ; Jones on Montgomery v. Evans, 8 Geo. 178 ; Jack- Bailm. 120, 123 ; Shiells v. Blackburne, 1 man v. Partridge, 21 Vt. 558 ; Smith v. H. Bl. 162 ; Mytton v. Cock, 2 Str. 1099 ; Jones, 3 Eng. 109 ; unless the bailee has [McNabb v. Lockhart, 1 8 Geo. 495 ; Skelley done some wrongful act towards the prop- v. Kahn, 17 HI. 170; Tracy v. Wood, 3 erty bailed. Pool v. Adkisson, 1 Dana, Mason, 132; Sodowsky v. M'Parland, 3 117; Jackman v. Partridge, supra.] Dana, 205 ; Graves v. Ticknor, 6 N. H. (v) Beauchamp v. Powley, 1 Moo. & 537 ; Storer a. Gowen, 18 Maine, 174; 2 Rob. 38. Kent, 569; Beardslee a. Richardson, 11 (x) Elsee v. Gatward, 5 T. R. 143 ; Wend. 571. But it seems, that if he re- [Thome v. Deas, 4 John. 83; Rutgers v. fuses or omits to deliver the property in- Lucet, 2 John. Cas. 82 ; Ferguson v. Por- trusted to him on demand, he is answerable ter, 3 Florida, 27 ; Benden v. Manning, 2 unless he can show its loss without that N. H. 289 ; 2 Kent, 569, 570.] degree of fault or negligence for which he (y) Wilson v. Brett, 11 M. & W. 113 ; 666 SUBJECT-MATTER OF CONTRACTS. Thus a count stating that the plaintiff, being possessed of some old materials, retained the defendant to perform the carpenter's work on certain buildings of the plaintiff, and to use those old ma- terials ; but that the defendant, instead of using those, made use of new ones, thereby increasing the expense ; is sustainable. (2) So if a party undertakes, without reward, to lay out the money of another in the purchase of an annuity, he is bound, although he does not act in a professional character, to act faithfully and hon- estly, and not to be guilty of any gross or corrupt neglect in the discharge of that which he has undertaken to do. (a) And so, although there be no consideration for the undertaking of one party to procure an insurance for another ; yet where a party voluntarily undertakes to do it, and proceeds to carry his un- dertaking into effect, by getting a policy underwritten, but does it so negligently or unskillfully that the other can derive no benefit from it, he is liable to an action for such negligence. (5) Russell on Factors, 33 ; [Nolton v. Western E. B. Corp. 1 Smith (N. Y.), 444; Thome u. Deas, 4 John. 84 ; Benden v. Manning, 2 N. H. 289 ; Eellowes o. Gordon, 8 B. Mon. 415 ; Philadelphia & Beading E. E. Co. v. Derby, 14 How. (U. S.) 468; "Walker v. Smith, 1 Wash. C. C. 152. He is liable in contract, if he has the property intrusted to him, and he enters on the performance and does not complete it, the delivery and the acceptance being the con- sideration ; in tort, if the bailee has injured the property intrusted to him. In this last case it is not necessary to state a con- sideration. Benden v. Manning, supra; Shillabeer v. Glyn, 2 M. & W. 143 ; Eut- gers v. Lucet, 2 John. Cas. 92 ; Eohinson v. Threadgill, 13 Ired. 39. Eeceiving a letter to deliver, or money to pay; or a note by a bank to collect, and by negli- gence omitting to perform the trust, the mandatary, though acting gratuitously, becomes responsible for damages resulting from his negligence. The delivery and re- ceipt of the letter, money, or note, creates a sufficient consideration to support the contract, and is a part execution of it. Durnford W.Patterson, 7 Martin (Lou.) E. 460 ; Shillabeer v. Glyn, supra ; 2 Kent, 571, note. Where A. received of B. a bill of exchange drawn by C. and which he promised to return to B. on demand, or pay the amount ; though the bill was re- ceived by A. as a matter of courtesy, and was to be used for the benefit of B. ; yet, as A. did not return the bill on demand nor in due season, and as B. had suffered special damage by the neglect, A. was ad- judged, under the circumstances of the case, liable to B. for the amount. Eutgers v. Lucet, 2 John. Cas. 92. See Stephens v.White, 2 Wash. 208, 211; 1 Swift's Dig. 208, 209. Where a person was in- jured while riding on an engine over a railroad, by invitation of the president thereof, without paying any fare, in con- sequence of a collision arising from gross negligence in one of the servants of the railroad company, the company were held liable for the injury. Philadelphia & Beading E. E. Co. v. Derby, 14 How. (U. S.) 468. Any negligence in those who undertake to carry persons by the powerful and dangerous agency of steam, may well deserve the epithet of " gross." Per Grier J. in Philadelphia & Beading E. E. Co. v. Derby, 14 How. 486. See Nolton v. Western R. E. Corp. supra.] (z) Elseew. Gatward, 5 T. E. 143 ; and see Max v. Eoberts, 12 East, 59 ; White- head v. Greetham, 2 Bing. 464, 468. (a) Dartnall v. Howard, 4 B. & C. 345, 350. (b) Wilkinson v. Coverdale, 1 Esp. 75 ; BAILMENTS. 667 Again : if the situation or profession of a gratuitous bailee be such as to employ skill, an omission to use that skill is Rule where imputable to him as gross negligence, (e) Thus if A., p r ? fess . ion of a general merchant, undertake voluntarily and with- plies skill. out reward, to enter at the custom-house for exportation a parcel of goods of B., together with a parcel of his own of the same sort, but makes the entry under a wrong denomination, whereby both parcels are seized; A. — having bond fide taken the same care of the goods of B. as of his own, not having received any re- ward, and not being of a profession or employment which necessa- rily implied skill in what he had" undertaken — is not liable for the loss occasioned to B. (d~) But if in this case a ship-broker, or a clerk in the custom-house, had undertaken to enter the goods, a wrong entry would have been gross -negligence in him ; because his situation and employment necessarily imply a competent degree of knowledge in making such entries. And so, if a man apply to a surgeon to attend him in a disorder, and the surgeon treat him improperly, this is gross negligence, even although the surgeon un- dertook to attend the sick person gratis ; because his situation im- plies skill in surgery, (e) So a person who rides a horse gratuitously, at the owner's re- quest, for the purpose of showing him for sale, is bound, in so doing, to use such skill as he actually possesses ; and if he be proved to be a person conversant with and skilled in horses, he is as much liable as a borrower would be, for an injury done to the horse whilst being ridden by him. (/ ) So a carrier who receives goods into his warehouse, for the pur- pose of their being carried for hire when orders to that effect shall be given, is not, whilst the goods are in his care as a warehouse- man, a gratuitous bailee, although he make no charge for warehous- ing- O) [Hammond o. Hussey, 51 N. H. 40 ; (e) Per Lord Loughborough and Heath French v. Reed, 6 Binney, 308 ; Thome J. Shiells v. Blaekburne, 1 H. Bl. 158, o. Deas, 4 John. 84; Sanches o. Daven- 161,162. [But if the agent employed has port, 6 Mass. 258. But where a joint the requisite qualifications for the dis- owner of a vessel undertook voluntarily to charge of the ordinary duties of the trust get her insured, but neglected it totally, imposed, it is sufficient to exempt him and the vessel was lost, he was held not to from liability for errors into which a man be liable to his co-owner. Thorne v. Deas, of ordinary prudence might have fallen. 4 John. 84 ; 1 Arnould Ins. 150, 151.] 2 Kent, 572 ; Porter J. in Percy v. Millau- (c) Wilson v. Brett, 11 M. & W. 113; don, 20 Martin (Lou.) Rep. 77.] 2 Kent, 569 ; Story Bailm. § 164 et seq. (f) "Wilson v. Brett, 11 M. & W. 113. (d) Shiells v. Blaekburne, 1 H. Bl. 158, (?) White v. Humphrey, 11 Q. B. 43. 668 SUBJECT-MATTER OF CONTRACTS. Commoda- tum. 3. Commodatum, or loan for use, when goods are bailed, to to be used for a certain time by the bailee without pay. In this case, as the lender must be taken to lend for the benefi- Liability of c ^ use °f the borrower, the latter is not responsible for borrower. reasonable wear and tear. But he is liable for negli- gence, for misuse, for gross want of skill in the use, and, above all, for anything which may be qualified as legal fraud. (h~) So he is liable if the goods be purloined from him, provided this happened through his want of ordinary care, (i) So the borrower has no right to deviate from the conditions of the loan. Thus, if a horse be lent to a person to ride, this will not entitle him to allow the horse to be ridden by his servant. (/) But where a horse was for [See Thomas v. Boston & Prov. R. R. Co. & Prov. R. R. Corp. 10 Met. 472 ; Cowles 10 Met. 472. A wharfinger is also respon- sible as a warehouseman ; and in order to discharge a wharfinger, who undertakes to ship goods, from responsibility for goods left with him to be sent coastwise, a deliv- ery to the mate, or some other officer of the ship by which they are to be conveyed, is necessary. Leigh v. Smith, 1 C. & P. 638. A wharfinger is bound only to the same degree of care as a warehouseman ; and is not liable to the same extent as a common carrier ; he is liable only for or- dinary diligence. See Blin u. Mayo, 10 Vt. 56 ; Piatt v. Hibbard, 7 Cowen, 497 ; Poote v. Storrs, 2 Barb. 328 ; Hatchett v. Gibson, 13 Ala. 587 ; Chenowith v. Dick- inson, 8 B. Mon. 156 ; Rodgers v. Stophel, 32 Penn. St. 111. In an action against the wharfinger for the loss of goods in- trusted to him, the burden is on the plain- tiff to prove a want of care, and it is not sufficient to show a loss of the goods merely. Poote u . Storrs, 2 Barb. 328. One who receives goods for reward, into his store, though standing upon a wharf, the goods to remain there for the purpose of being forwarded, subject to the bailor's order, is liable merely as a warehouseman, not as a common carrier; and he is bound to exercise no more than ordinary care in preserving the goods. Piatt v. Hibbard, 7 Cowen, 497 ; Schmidt v. Blood, 9 Wend. 268 ; Knapp v. Curtis, 9 lb. 60 ; Powers v. Mitchell, 3 Hill, 545 ; Thomas v. Boston v. Painter, 26 Miss. (4 Cush.) 253.] (h) Per Cur. Blakemore v. Bristol & Exeter Railway Co. 8 E. & B. 1035, 1050 ; and see Jones on Bailm. 50, 65 ; Coggs v. Bernard, 2 Ld. Raym. 915. [A borrower must exercise all the care and diligence that the most careful persons are accus- .tomed to apply to their own affairs. He is responsible for the slightest neglect. Where a loss ensues, the burden of proof is on him to show that it was the result of an inevitable accident, or of a wrongful act which, in the exercise of such diligence could not have been foreseen or prevented Scranton v. Baxter, 4 Sandf. (S. C.) 5 ; 2 Kent, 574, 575 ; Wood v. McClure, 7 Ired. 155. If the borrower sells the borrowed property, the owner does not thereby lose his title to it. McMahan a. Sloan, 12 Penn. St. 229 ; Brooks v. Penn, 2 Strobh. 113 ; Smith v. Jones, 3 Eng. 109.] , (i) Jones on Bailm. 66. (j) Bringloe a. Morrice, 1 Mod. 210 ; 3 Salk. 271. [The borrower cannot apply the thing borrowed to any other use than the very one for which it was borrowed ; 2 Kent, 574 ; Wheelock v. Wheelwright, 5 Mass. 104 ; nor keep it beyond the time limited, nor detain it as a pledge for any demand he may have against the bailor. 2 Kent, 574, 576. See Bank of the United States v. Macalester, 9 Barr, 475 ; Jarvis v. Rogers, 15 Mass. 414, per Parker C. J.] BAILMENTS. 669 sale, and the vendor allowed the defendant to have the horse in order to try it ; it was held, that he had a right to allow a compe- tent person to ride the horse for that purpose. (&) On the other hand, the lender is responsible to the borrower for any defect in the chattel, with reference to the use Liability of for which he knows the loan is accepted, of which he is lentler ' aware, and owing to which, directly, the borrower is injured. (7) 4. Pignori acoeptum, which is a bailment of goods by a debtor to his creditor in pledge, or as a security for debt ; the pi gnor iac- pledgee impliedly undertaking to deliver back the prop- ce P twn - erty to the pledgor, when the sum for which it was pledged is paid ; (7 1 ) and the pledgor, as it seems, impliedly undertaking that the property pledged is his own, and may be safely returned to him. (m) In this case the pawnee is answerable for ordinary neglect, (n) (£) Camoys v. Scurr, 9 C. & P. 383. deliver the thing pledged to the pledgor, (I) Blakemore v. Bristol & Exeter or permits it to go back into his posses- sion, the special property created by the bailment is determined and gone. Billiard v. Billings, 2 Vt. 309 ; Ward v. Sumner, 5 Railway Company, 8 E. & B. 1035, 1050 ; MacCarthy v. Young, 6 H. & N. 329. (P) [But if it turns out that the pledge belongs to a third person and the pledgor Pick. 60 ; Homes v. Crane, 2 Pick. (2d ed.) 610, note (1 ) ; Haven v. Low, 2 N. H. 13 ; Langdon v. Buell, 9 Wend. 80 ; 2 Story Eq. Jur. 296, 297, and cases cited in the notes ; Colby v. Cressy, 5 N. H. 237 ; Rus- sell v. Fillmore, 15 Vt. 130; Beeman v. Lawton, 37 Maine, 543 ; Walcott v. Keith, 22 N. H. 209, 210. But it is otherwise, if had no right to pledge it, the pledgee may defend himself by showing that he has de- livered over the pledge to the true owner. Cheesman o. Exall, 6 Exch. 341 ; Story Bailm. § 340. See Ogle v. Atkinson, 5 Taunt. 759.] (m) Per Parke B. Cheesman v. Exall, 6. Exch. 341,344. [In cases of pledge of the retransfer be for a temporary purpose personal chattels, the general property re- mains in the pledgor, and only a special property passes to the pledgee. Fletcher v. Howard, 2 Aiken, 115; Story Bailm. (2d to the owner as special bailee or agent for the pledgee. Hays v. Riddle, 1 Sandf. 248 ; Reeves v. Copper, 5 Bing. (N. C.) 136. So, if the pledgor obtains possession by his ed.) 206 et seq. The pledgee may sell or wrongful act, and without the assent of assign such interest as he has in the prop- erty pledged. Ballard v. Billings, 2 Vt. 309; Russell v. Fillmore, 15 Vt. 130; 2 Kent, 579. Or he may convey the same interest conditionally, by way of pledge to another person, without in either case destroying or invalidating his security. Per Jackson J. in Jarvis v. Rogers, 15 the pledgee. Walcott v. Keith, 22 N. H. 210; Partridge v. Dartmouth College, 5 N. H. 286.] (n) Jones on Bailm, 75, 76; Coggs v. Bernard, 2 Ld. Raym. 917 ; [Commercial Bank of New Orleans v. Martin, 1 La. An. 344 ; 2 Kent, 579. Where a person receives notes as collateral security to be Mass. 389, 415 ; Story Bailments, § 324; collected, the pledgee is bound to use due Bell J. in Bailey v. Colby, 34 N. H. 35. diligence in keeping and collecting them. It is essential to every pledge of a personal Noland v. Clark, 10 B. Mon. 239 ; Fabens v. Mercantile Bank, 23 Pick. 330 ; Exeter Bank v. Gordon, 8 N. H. 66; Goodall v. chattel, that it be accompanied by the de- livery of possession ; and if the pledgee take a delivery, and yet immediately re- Richardson, 14 N. H. 567.] 670 SUBJECT-MATTER OF CONTRACTS. Therefore the pawnee shall not be discharged, if the pawn be sim- Rights and ply stolen from him, unless he can show that he used pawnee." due care to protect it ; but he shall be excused if he be forcibly robbed thereof, (o) And if several things be pledged for the same debt, and one of them be lost without default in the pawnee, the residue are liable to be retained for the whole debt, (j?) If the creditor tender the debt to the pawnee, and he refuse to deliver up the pledge, it seems that he is liable, though it be sub- sequently lost, or even forcibly taken from him. (y) If the pawnor make default in payment at the stipulated time, the pawnee may sell the pledge, even although there be not any express agreement to that effect ; (r) or he may sue the pawnor for his debt, retaining the pawn as a security, (s) But if a time for payment has not been agreed upon, or if the time agreed upon has been extended indefinitely, the pawnee can- not sell the pledge, until after demand and notice. (£) It has been held, however, that if, before the day appointed for payment, the pawnee repledge the goods as security for a loan made to himself; or if, there being no day appointed for payment, (o) Jones on Bailm. 76 ; Anon. Salk. the property pledged to him as collateral 522 ; Coggs v. Bernard, 2 Ld. Raym. 917. security, does not extend to choses inaction (p) Bac. Abr. Bailment (B). created by private individuals, and having {q) Jones on Bailm. 79 ; RatelifFe v. no market value. In regard to these, the Davis, Yelv. 179; Bull. N. P. 72. authority extends only to collecting the (r) Pigot v. Cubley, 15 C. B. N. S. 701, amount of the securities from the parties 710; Pothonier v. Dawson, Holt N. P. C. liable, and adopting the necessary means 383, 385 ; Tucker u. Wilson, 1 P. Wins, of enforcing payment. Wheeler v. New- 261 ; Lockwood u. Ewer, 9 Mod. 278; 1 bould, 5 Duer (N. Y.), 29.] Smith L. C. 100 n. [Reasonable notice (s) Bac. Abr. Bailment (B). [See Her- must be given to the pledgor before the kimer Manuf. Hydraulic Co. v. Small, 2 sale. See Stearns v. Marsh, 4 Denio, 227 ; Hill, 127. But the pledgee does not ac- Lucketts v. Townsend, 3 Texas, 119. And quire an absolute title to the pledge by where the property is pledged for the pay- the failure of the pledgor to pay at the ment of a note in which no time of pay- time stipulated ; Brownell v. Hawkins, 4 ment is expressed, a demand of payment Barb. 491 ; although it is agreed in the must be made before sale of the pledge, contract of pledge, that on such failure Wilson v. Little, 1 Sandf. 351 ; S. C. 2 the property shall be absolute in the Comst. 443. If the pledgee buy the pledge pledgee. Lucketts v. Townsend, 3 Texas, himself, the sale is voidable by the pledgor. 119. The pledgee may have his actionfor Whitlock v. Heard, 13 Ala. 776. See Pat- the pledge against the pledgor, or any ten v. Pearson, 60 Maine, 220 ; Parkinson person to whom the pledgor has trans- it Hanbury, 2 De G., J. & S. 450 ; Kirk- ferred it ; but in such case he can recover wood v. Thompson, 2 De G., J. & S. 613 ; only the amount of his debt. Brownell v. 2 Sugden V. &P. (8th Am. ed.) 689. This Hawkins, supra.] implied authority of the creditor to sell (t) Pigot v. Cubley, 15 C. B. N. S. 701. BAILMENTS. 671 he sell the goods in order to repay himself his deht ; this does not put an end to the contract of pledge, so as to entitle the pawnor to maintain trover or detinue for the pledge against the pawnee, without payment or tender to him of the amount of his loan, (w) But the pawnee has not, in general, any right to use the thing pledged ; although, if such use were necessary for its preservation or otherwise beneficial to it ; or if, where the pawn is an animal, it were used as a recompense for the cost of its keep, the law would perhaps imply the consent of the pawnor to the use of the article pledged, (v) The stat. 39 & 40 Geo. 3, c. 99, (x) regulates the business, rights, duties, and liabilities of pawnbrokers ; (y) and where a pawnbroker is guilty of a violation of that statute, the contract of pledge is altogether void, (z) It has been held, moreover, that a pawnbroker is bound, even after the expira- tion of a year, to return the pledge on tender of principal and in- terest, provided the article remain in his hands unsold ; although at the end of the year he was entitled to sell the same. (a~) And it seems that a pawnbroker is not responsible, if the goods pawned be destroyed by fire, without his negligence or default. (5) 5. Locatum. 1st. Locatio operis faciendi, when work and labor, care and pains, are to be performed or bestowed for reward on the Location thing delivered. (6 1 ) ope f • (u) Donald v. Suckling, L. Rep. 1 Q. sion of the officer, this has been held to be B. 585; Halliday v. Holgate (in Cam. a waiver of the lien. Whitaker v. Sumner, Scac), L- Rep. 3 Ex. 299. As to the 20 Pick. 399. See Lucketts v. Townsend, damages recoverable, where such action 3 Texas, 119. The pledgee cannot hold can be maintained, see Johnson v. Stear, a pledge for the purpose of securing other 15 C. B. N. S. 330. debts than those for which it was given. (w) Jones on Bailm. 81, n. (38) ; Coggs unless upon some agreement or under- u. Bernard, 2 Xd. Raym. 916, 917 ; Mores standing in reference to it. Jarvis v. u. Conham, Owen, 123 ; Story on Bailm. Rogers, 15 Mass. 389 ; Rushford v. Had- 221. [See Thompson v. Patrick, 4 Watts, field, 7 East, 224 ; Story Bailments, § 304 ; 414 ; 2 Kent, 578. But if the pledgee does 2 Kent, 584.] use the pledge wrongfully, his lien is not (x) Amended by the 19 & 20 Vict. c. thereby necessarily defeated. Thompson 27; and 23 Vict. c. 21. v. Patrick, 4 Watts, 414. The pledgee (y) See as to the 14th section, Rex v. may, however, by his acts waive his lien ; Cording, 4 B. & Ad. 198. The 6th section as if the pledge is given to secure a ne- applies only to loans of 101. or under, gotiable note, and the note is indorsed to Pennell v. Attenborough, 4 Q. B. 868. a third person without a transfer of the (2) Eergussonu. Norman, 6 Scott, 794. pledge, and the pledgee causes the pledge (a) Walter v. Smith, 5 B. & Aid. 439. to be attached by the indorsee and other (6) Rex v. Cording, 4 B. & Ad. 198. ceditors, and to be taken into the posses- (& l ) [Where a mechanic or other work- 672 SUBJECT-MATTER OF CONTRACTS. A bailee with whom goods are bailed, that work may be per- formed thereon or with respect thereto, for pecuniary or other reward, is bound not only to perform his contract Workman. man is employed to make an article out of his own materials, this is not a bail- ment; the property, until the article is finished and delivered, is in him, and if lost or destroyed, the loss falls upon him. But if the employer send materials to the workman to be manufactured or altered, and the materials sent are either the whole or the principal of those to be used in the undertaking, this is a case of bailment, although the workman is to add some of his own materials in the performance of the labor. 2 Kent, 590, 591 ; Merritt v. Johnson, 7 John. 473 ; Pierce v. Schenck, 3 Hill (N. Y.), 28. Where the owner of a damaged or worn-out article delivers it to another to be repaired by the labor and materials of the latter, the property re- mains all along in the original owner, for whom the repairs are made. This is a common case of bailment. The original owner does not lose his title to the article delivered to be repaired, merely because the materials added are worth more than that to which they are added, but he ac- quires title in the accessorial additions made in bringing the article to its im- proved condition. Gregory v. Stryker, 2 Denio, 628. In all cases whore an article is delivered to a workman to be manufac- tured or altered, and the same article is to be returned, though in an altered shape, the title remains in the original owner. As if wheat is delivered to be made into flour, and the same identical wheat is to be returned in the shape of flour, this is a bailment, and subject to all its incidents. So, in a case where logs are delivered to be sawed into boards. 2 Kent, 589 ; Sey- mour v. Brown, 19 John. 44 ; Hurd v. West, 7 Cowen, 752 ; Mallory v. Willis, 4 Comst. 76 ; Barker v. Roberts, 8 Greenl. 101 ; Gregory v. Stryker, 2 Denio, 631 ; Pierce v. Schenck, 3 Hill, 28 ; Rightway v. Raymond, 12 Wend. 51. So cloth cut into coats to be made and finished. Morse v. Androscoggin R. R. Co. 39 Maine, 285 ; So hay to be made into manure. Moore v. Holland, 39 Maine, 307. Where, how- ever, the same identical article is not to be returned, but merely another of equal value, either in the same or an altered shape, a question has arisen, whether the title is in the original owner, or in the person to whom the article is delivered ; in other words, whether it is a case of mere bailment, or a case where the prop- erty is transferred by the delivery, and the rights of the original owner rest en- tirely in his contract. There is eminent authority on each side. In favor of the former view, see Seymour v. Brown, 19 John. 44 ; Slaughter v. Green, 1 Rand. 3 ; Grant v. King, 14 Vt. 367 ; Smith v. Niles, 20 Vt. 315 ; Downer v. Rowell, 22 Vt. 347 ; King v. Humphreys, 10 Barr, 217. In favor of the latter view, see 2 Kent, 589, 590 ; Hurd v. West, 7 Cowen, 752 ; Smith v. Clark, 21 Wend. 85 ; Buffum v. Merry, 3 Mason, 478 ; Story Bailments, § 439 ; Ewing i'. French, 1 Blackf. 353 ; Pierce v. Schenck, 3 Hill (N. Y.), 28; Mallory v. Willis, 4 Comst. 76 ; Baker o. Woodruff, 2 Barb. 520; Norton a. Woodruff, 2 Comst. 153 ; Foster v. Pettibone, 3 Selden (N. Y.), 433. Where a contract is made for the construction of an entire work at a stipulated sum, and a casualty occurs increasing the labor and cost of con- structing the same, the loss must fall on him who undertakes to do the work. Boyle v. Agawam Canal Co. 22 Pick. 381. So, where a party contracts to build a house on the land of another, and in the prog- ress of the work the house is destroyed by fire, the loss falls on the builder. Adams v. Nichols, 19 Pick. 275. And he can recover nothing for the labor and ma- terials bestowed. lb. 279. See Brumby v. Smith, 3 Ala. 123 ; Story Bailments, § 426 b. But in other cases, where a work - man is employed to furnish materials and perform labor in the repair of an article, and that article is destroyed without any BAILMENTS. 673 as to the work to be done, but also to use ordinary diligence in pre- serving the property intrusted to him. (c) Accordingly he is bound to exert himself, in order to protect the thing bailed from any un- expected danger to which it may be exposed. (d~) So, in Clarke v. Earnshaw, (e) where A. intrusted B., who was a chronometer maker, with a chronometer to be repaired, and B. suffered his ser- vant to sleep in the shop in which it was deposited ; he was held liable to A. for its value, — B.'s servant having stolen it, and he at the time having deposited his own watches in a mor,e secure place. And so, where a wharfinger takes upon himself the mooring of vessels which are sent alongside his wharf, he is liable for ■yn ax fi nee[ any accident which may occur to such a vessel, from her being negligently moored. (/) So, a warehouseman is liable for any loss which is occasioned by the want of ordinary care on his part ; (g~) and it is said warehouse- that, in case of a loss, it lies on him to acquit himself, by man - showing that he was not in fault. (K) The common law duty of a bailee with whom cattle are left to be fed, for reward, is merely to take care of them ; (A 1 ) not " to take "-.fault of the workman during the progress ' of the labor, the workman is entitled to claim of the employer for the labor and ■ materials that have been bestowed before J the loss. Menetone v. Athawes, 3 Burr. 1592 ; Story Bailments, § 426 a; 2 Kent, 590. A workman who had contracted to repair a house and outbuildings for a cer- tain sum, had nearly completed the repairs on the house, and the owner had entere d and o ccupied it, when the house and out- buildings were destroyed by fire. It was held, that the workman was excused by the fire from the completion of his con- tract, and was entitled to recover for the repairs done on the house when the owner took possession, in an action for work done and materials furnished. Lord v. Wheeler, 1 Gray, 282. (c) Jones on Bailm. 91, 92 ; Pinucane v. Small, 1 Esp. 315 ; and see Boss v. Hill, 2 C. B. 877, 890; [2 Kent, 588 ; Shepley C. J. in Morse v. Androscoggin B. B. Co. 39 Maine, 286, 287 ; Brown v. Hitchcock, 28 Vt. 452. So, in such case, the bailee must apply a' degree of skill equal to the undertaking. If he performs the work vol. i. M unskilfully, he becomes responsible in damages. .2 Kent, 588; M'Donald v. Simpson, 4 Ark. 523. If one who has recommended himself as a. master work- man, has caused a loss to his employer, by his unskilfulness, of more than his services would be worth at the stipulated rates, he can recover nothing for his services. Goslin v. Hodson, 24 Vt. 140.] (d) Leek v. Maestaer, 1 Camp. 138. (e) Gow, 30. (/) Wood v. Curling, 16 M. & W. 628 ; 15 lb. 626. [g) Garside v. Trent Navigation Com- pany, 4 T.E. 581, 582; Cailiffw. Danvers, Peake, 114; [Titsworth u. Winnegar, 51 Barb. 148; Hall v. Boston & Worcester R. E. Corp. 14 Allen, 439.] (h) Per Gurney B. Mackenzie v. Cox, 9 C. & P. 632, 633 ; [Schwerin v. McKie, 5 Bob. (N. Y.) 404 ; Cass v. Boston &c. R. E. Co. 14 Allen, 448.] (A 1 ) [An agister of cattle is responsible for the loss of animals committed to his charge, only upon proof of want of ordi- nary care and diligence. Bey v. Tonev, 674 SUBJECT-MATTER OF CONTRACTS. Attorney. Factor. Innkeeper. Liability of, at common law. care of and redeliver them to the bailor." (i) But if he leave the . . gate of his field open, and the cattle stray out and are stolen, he must make good the loss. (k~) Where an attorney who had money of his client in his hands, — such money being the produce of the sale of an estate, and out of which the attorney was to pay certain charges, and place the residue in the public funds, — paid the money to the credit of his own private account at his bankers, and the latter failed ; the attoriley was held to be liable to his client for the amount, al- though he acted bond fide, and had a large sum of his own in the hands of the same bankers. (J) And so, a factor is bound to keep goods intrusted to him in the way of his business, with reasonable care, (m) To charge an innkeeper on the custom or common law of the realm, for the loss of the goods of a traveller who was his guest, it is necessary : 1st. That the inn be a common inn ; (n) 2dly, The party ought to be a traveller or pas- senger. (0) But it appears that if a servant, travelling on his master's business, come to an inn with goods, the though he receives a compensation. Lyon v. Smith, 1 Morris (Iowa), 184 ; State v. Matthews, 2 Dcy. & Bat. 424.] And it would seem that a lodging or boarding- house keeper does not undertake, by impli- cation of law, to take even due and proper care of a guest's baggage. Holder v. Soulby, 8 C. B. N. S. 254. But see per Lord Campbell C. J. and Coleridge J. Dansey v. Richardson, 3 E. & B. 144. (0) As to who are to be considered guests, see Bac. Abr. Inns (C) ; Yorkw. Grindstone, 1 Salk. 388 ; Gelly v. Clarke, Cro. Jac. 188 ; Jones on Bailm. 95, n. (3) ; Bennett v. Mellor, 5 T. R. 273 ; [Chamber- lain v. Masterton, 26 Ala. 371. A person is none the less a guest, because he makes a particular contract respecting the price of his board and lodging. Berkshire Woollen Co. o. Proctor, 7 Cush. 417 ; Pinkerton v. Woodward, 33 Cal. 557. But when a person becomes a boarder at an inn, the innkeeper's peculiar liability either does not attach or ceases. Manning v. Wells, 9 Humph. 746. It is not necessary that the- owner of the goods should be the guest; they will be protected and the inn- 24 Miss. (3 Jones) 600 ; McCarthy v. Wolfe, 40 Missou. 520.] (i) Corbett c. Packington, 6 B. & C. 268. [Where the servant of a bailee of a horse to keep, took and used the horse bailed, in the business in which he was employed by the bailee, his master was held liable for any injury or damage re- sulting to the horse from the carelessness of the servant while so used, although no express assent of the master was shown. Sinclair v. Pearson, 7 N. H. 219.] (7c) Broadwater v. Bolt, Holt N. P. C. 541. (I) Robinson v. Ward, R. & M. 274 ; S. C. 2 C. & P. 59. (?n) Russell on Factors, 37, 38. (n) A London tavern and coffee-honse, where beds, &c, are provided, is an inn, though no stage-coaches put up there; Thompson u. Lacy, 3 B. [& Aid. 283 ; Jones v. Osborn, 2 Chit. 484. But a mere coffee-house is not an inn ; nor is a private boarding-house. Doe v. Laming, 4 Camp. 77 ; Joneson Bailm. 94, n. (47). [One who entertains strangers only occasionally is not thereby shown to be an innkeeper, al- BAILMENTS. 675 property of his master ; and such goods are there lost by the inn- keeper's default ; the master may have this action against the inn- keeper. (^>) 3dly, The goods and chattels must be in the inn. But an innkeeper is liable for the goods of a guest, which were not actually within the inn at the time they were taken ; provided they were so taken whilst under the defendant's protection as an inn- keeper. (5) 4thly, There must be a default on the part of an inn- keeper ; and such default is to be imputed to him, wherever there is loss not arising from the plaintiff's negligence, the act of God, or the queen's enemies, (r) And 5thly, The article lost must be a movable, (s) keeper liable, if they are at the inn in possession of a guest, who is a servant or friend of the owner; and one who has hired the goods is a servant within this rule. Mason v. Thompson, 9 Pick. 280 ; Berkshire Woollen Co. v. Proctor, 7 Cush. 417 ; Towson v. Havre de Grace Bank, 6 Har. & J. 47, 53 ; Dickinson v. Winches- ter, 4 Cush. 114, 121. In Mason v. Thompson, 9 Pick. 280, it was held, that if a person commits his horse to an inn- keeper to be fed, he is a guest, although he do not himself lodge or receive any refreshments at the inn. McDaniels u. Robinson, 26 Vt. 316. See Yorke v. Grenaugh, 2 Lord Raym. 866 ; Peet v. McGraw, 25 Wend. 653 ; Berkshire Wool- len Co. v. Proctor, 7 Cush. 417, 425, 426. But a, contrary conclusion was arrived at in Grinnell v. Cook, 3 Hill (N. Y.), 485. See, also, Thickstun v. Howard, 8 Blackf. 535. Purchasing liquor at an inn has been held sufficient to constitute the purchaser a guest. McDonald v. Edgerton, 5 Barb. 560. Where a guest at an inn goes away for a short time, leaving his property there, and intending to return, he is to be con- sidered as continuing a guest ; and the innkeeper is liable for his property, if lost during his absence. McDonald p. Edger- ton, supra. See McDaniels v. Robinson, 26 Vt. 316. If a horse, chaise, and har- ness, are delivered to an innkeeper, and he receives no separate compensation for keeping the chaise and harness, he is never- theless liable for the loss of them, for the payment for keeping the horse includes a compensation for keeping the chaise and harness. Mason v. Thompson, 9 Pick. 280. If an innkeeper, being also a livery- stable keeper, receives a horse to be fed, "without giving notice that he receives it as keeper of the livery stable, he will be answerable as innkeeper for the loss of it. lb.] (p) Beedle v. Morris, Cro. Jac. 224 ; Bac. Abr. Inns (C), 5. (7) Jones v. Tyler, 1 A. & E. 522. [Where a traveller, after arriving at an inn, placed his loaded wagon under an open shed, near the highway, and made no request to the innkeeper to take the cus- tody of it, and goods were stolen from it in the night ; it was held, that the inn- keeper was not liable for the loss, notwith- standing it was usual to place loaded teams in that place. Albin v. Presby, 8 N. H. 408. Aliter, where a carriage was placed in a space designated by the servant of the innkeeper. Piper v. Manny, 21 Wend. 282 ; Mason o. Thompson, 9 Pick. 280 ; Clute v. Wiggins, 14 John. 175.] (r) Per Cur. Morgan v. Ravey, 6 H. & N. 267, 277 ; per Bayley J. Richmond . . Smith, 8B. & C. 9, 11. (s) See Calye's case, 8 Co. 32 a ; P. N. B. 94 a, b ; Bac. Abr. tit. Inns ; 1 Burn's J. Alehouses, 0. 16. [The responsibility of innkeepers, to the full extent of the English law, has been recognized in the courts of justice in the United States. 2 Kent, 592 et seq. Common innkeepers, without any particular contract or agree- ment for that purpose, are answerable for 676 SUBJECT-MATTER OF CONTRACTS. And an innkeeper is liable if the money of his guest be taken or lost. (0 If goods which have been deposited in a public inn are there lost or injured, the presumption is that the loss or damage was occasioned by the negligence of the innkeeper or his servants ; («) and the inn- keeper is responsible even if his servants rob a guest, (x) But if the goods of the guest be stolen by his own servant or companion ; (y) or if the guest be guilty of negligence which con- duces to the loss; that is, if the loss would not have happened, provided the guest had used the ordinary care which a prudent man might have been expected to take under the circumstances ; (2) or if the goods be stolen from a room in the inn, of which the guest all losses in their inns, happening either by the acts or negligence of themselves or their servants, to travellers and guests re- ceived by them ; and if a servant is robbed of his master's money or goods, the master may maintain an action against the inn- keeper in whose house the loss was sus- tained. Towson v. The Havre de Grace Bank, 6 Harr. & J. 47. So, a father may sue for money lost at an inn by his son, which had been given him by his father to pay his travelling expenses on his way to college, and to defray his expenses while there. Epps v. Hinds, 27 Miss. (5 Cush.) Co". Innkeepers are only answerable for money, or other dead property lost in their inn, where the party losing it was a guest at the inn at the time of the loss. Towson v. Havre de Grace Bank, 6 Harr. & J. 47. It is the profit alone which creates this liability, and it matters not out of whose funds the expenses of the guests are defrayed. lb. An innkeeper is chargeable for the loss of the goods of his guest, committed to his care, unless the loss is caused by the act of God, or of the common enemy, or by the neglect or default of the guest. Mason a. Thomp- son, 9 Pick. 280; Piper v. Manny, 21 Wend. 2S2; Grinnell u. Cook, 3 Hill, 485 ; Shaw v. Berry, 31 Maine, 478 ; Man- ning v. Wells, 9 Humph. 746 ; Thickstun v. Howard, 8 Blackf. 535 ; Fowler », Dor- Ion, 24 Barb. 384 ; Chamberlain v. Mas- terton, 26 Ala. 371 ; Cashill v. Wright, 6 El. & Bl. 891. And to discharge the inn- keeper it is not enough for him to show that the loss or damage did not happen through his actual negligence or that of his servants. Sibley v. Aldrich, 33 N. H. 553.] (t) Kent v. Shuckard, 2 B. & Ad. 803 ; Doorman v. Jenkins, 2 A. & E. 256. [There is no distinction in this respect between goods and money. Pletcher J. in Berkshire Woollen Co. v. Proctor, 7 Cush. 417, 427 ; Quinton v. Courtney, 1 Hay. 40 ; Sneider <•. Geiss, 1 Yeates, 35 ; Epps v. Hinds, 27 Miss. (5 Cush.) 657. The liability of the innkeeper extends to all the money and goods of the guest that are placed within the innkeeper's custody. Berkshire Woollen Co. v. Proctor, 7 Cush. 417; 2 Kent, 593; McDonald v. Edger- ton, 5 Barb. 560 ; Taylor v. Monnot, 4 Duer (N. Y.), 116 ; Weisenger v. Taylor, 1 Bush (Ky.), 275; Pinkerton v. Wood- ward, 33 Cal. 557.] (w) Dawson c. Chamney, 5 Q. B. 164. See Merritt v. Claghorn, 23 Vt. 177 ; Shaw u. Berry, 31 Maine, 478 ; Johnson v. Richardson, 17 111. 302.] (x) Jones on Bailm. 95, 96 ; 1 Bl. Com. 430. (y) Calye's case, 8 Co. 33 a ; per Lord Ellenborough, Burgess v. Clements, 4 M. & S. 306, 310. (z) Cashill v. Wright, 6 E. & B. 894 ; 2 Jur. N. S. 1072; Armistead v. Wilde, 17 Q. B. 261 ; Sanders v. Spencer, Dy. 266 ; and see Bac. Abr. Inns (C), 4. BAILMENTS. 677 had the exclusive possession otherwise than as a mere guest, e. g. as a warehouse, or for the purposes of trade, (a) the innkeeper is not liable. Where, however, a traveller went to an inn, and de- sired to have his luggage taken into the commercial room, to which he resorted, and from which it was stolen : it was held that the inn- keeper was responsible, although he proved that, according to the usual custom of the house, the luggage would have been deposited in the guest's bedroom, and not in the commercial room, if no order had been given respecting it ; there being no proof that the defend- ant gave notice to the plaintiff, that he would not be liable unless the goods were placed in the bedroom. (J) So, where an inn- keeper refused to take charge of goods till a future day, because his house was full of parcels ; and the owner afterwards stayed in the inn as a guest, and the goods were stolen during his stay ; it was holden that the innkeeper was bound to make good the loss, (e) If, however, an innkeeper receive goods as a general bailee, and not in the character of an innkeeper, he is liable only according to the nature of the particular bailment. (d~) And now, by the 26 & 27 Vict. c. 41, it is enacted as Liability follows: S?v- r ? & 27 Vict. c. Sect. 1. That no innkeeper shall be liable to make iL good to any guest of such innkeeper, any loss of or injury to goods or property brought to his inn (not being a horse or other live animal, or any gear appertaining thereto, or any carriage), to a greater amount than the sum of 30Z., except in the following cases : (that is to say), (1) where such goods or property shall have been stolen, lost, or injured through the wilful act, default, or neglect of such innkeeper or any servant in his employ; (2) where such goods or property shall have been deposited expressly for safe cus- tody with such innkeeper : provided always, that in the case of such deposit it shall be lawful for such innkeeper, if he think fit, to re- quire, as a condition of his liability, that such goods 'or property shall be deposited in a box or other receptacle, fastened and sealed by the person depositing the same. (a) Farnworth v. Packwood, 1 Stark. (d) Williams v. Gessy, 5 Scott, 56. [If 249, 251, note; Burgess v. Clements, 4 M. an innkeeper, being also a livery stable & S. 306. keeper, receives a horse to be fed, without (6) Richmond v. Smith, 8 B. & C. 9 ; giving notice that he receives it as keeper see further, Armistead v. Wilde, 17 Q. B. of the livery stable, he will be answerable 261; [Epps v. Hinds, 27 Miss. (Cush.) as an innkeeper for the loss of it. Mason 757.] o. Thompson, 9 Pick. 280.] (c) Bennett v. Mellor, 5 T. K. 273. 678 SUBJECT-MATTER OF CONTEACTS. Sect. 2. That if any innkeeper shall refuse to receive for safe custody, as before mentioned, any goods or property of his guest, or if any such guest shall, through any default of such innkeeper, be unable to deposit such goods or property as aforesaid, such inn- keeper shall not be entitled to the benefit of that act in respect of such goods or property. Sect. 3. That every innkeeper shall cause at least one copy of the first section of that act, printed in plain type, to be exhibited in a conspicuous part of the hall or entrance to his inn, and that he shall be entitled to the benefit of the act, in respect of such goods or property only, as shall be brought to his inn while such copy shall be so exhibited. We may here add, that the law compels an innkeeper to receive all persons who apply, peaceably, to be admitted as guests, to entertain- provided he, the innkeeper, have convenient and suffi- cient room for that purpose, (e) And he is bound to provide meat and drink, on the price being tendered, when they are ready for the guest. (/) But a traveller is not entitled to select particular apartment in an inn, or to insist on occupying a bedroom for the purpose of sitting up all night, so long as the innkeeper is willing to furnish him with a proper room for that purpose, (jg) Nor is an innkeeper bound to supply post-horses, although he have a license to let them. (K) (e) Hawthorn v. Hammond, 1 C. & K. conducts with propriety, and is doing no 404; Elsee v. Gatward, 5 T. R. 143; injury to the innkeeper. Markham v. Calye's case, 8 Co. 32 ; Coggs v. Bernard, Brown, 8 N. H. 523. But if it appear to 2 Ld. Eaym. 909. An action or indict- be necessary for the protection of himself ment lies ; per Holroyd.T. Ansell v. Water- or his guests, the innkeeper may prohibit house, 6 M. & S. 393 ; Rex v. Ivens, 7 C. him from entering until the ground of ap- & P. 213. [An innkeeper would not he prehension be removed ; and may treat bound to entertain an agent of a rival inn, him as a trespasser if he enter after such who sought to decoy away his customers, prohibition. Markham v. Brown, 8 N. Jencks u. Coleman, 2 Sumner, 221, per H. 523. If the drivers of other lines are Story J. But where an innkeeper, in a guilty of misconduct towards the driver of town through which a line of stages passes, such rival line, and he is engaged in an and at whose inn the stages stop, permits affray for self-defence, that will not author- the drivers of some of the lines to resort to izo the innkeeper to exclude him, except his house without objection, he cannot ex- at the time of the disturbance, and for the elude the driver of a rival inn from enter- purpose of restoring quiet to the house, ing the inn, and going into the common Markham r. Brown, 8 N. H. 523.] public rooms, where travellers are usually (/) lb. ; Bac. Abr. Inns (C), 3. placed, for the purpose of soliciting pas- (g) Fell v. Knight, 8 M. & W. 269. scngers for his coach ; provided there is (h) Dicas v. Hides, Holt N. P. C. 207. reasonable expectation that passengers are [The keeper of a public-house in the neigh- there, and he comes at a suitable time, borhood of a railroad station, having given BAILMENTS. 679 2d. Loeatio rei; by which goods are lent to the bailee T ,. 7 J o Loeatio rei. for hire, (fr 1 ) Such a bailee is bound to use only an ordinary degree Liabil ; ty of of care ; (i) and he is not answerable for a loss by ac- hirer o£ cidental fire. (&) public notice that he would furnish a free conveyance, to and from the cars, to all passengers with their baggage, travelling thereby, who should come to his house as guests ; and for this purpose, having em- ployed the proprietors of certain carriages, to take all such passengers, free of charge to them, and to convey them and their baggage to his house ; if a traveller by the cars, to whom this arrangement is known, employ one of the carriages thus provided, to take him and his baggage to such pub- lic house, and his baggage is lost or stolen on the way, through a want of due care or skill on the part of the proprietor of the carriage or his driver, the keeper of the house will be liable therefor in assumpsit or case. Dickinson v. Winchester, 4 Cush. 114.] As to an innkeeper's lien, Allen v. Smith, 12 C. B. N. S. 638; Snead v. Wat- kins, 1 C. B. N. S. 267 ; Broadwood v. Granara, 10 Exch. 417 ; Smith v. Dear- love, 6 C. B. 132 ; Sunbolf v. Alford, 3 M. & W. 248 ; Proctor v. Nicholson, 7 C. & P. 67 ; Turrill v. Crawley, 13 Q. B. 197 ; 18 L. J. Q. B. 155. [Goods brought by a guest to an inn are subject to the innkeep- er's lien, though they may turn out to be the property of a third person, provided they are such as a person might ordina- rily travel with. Snead o. Watkins, 1 C. B. N. S. 267. But where the property brought by the guest to the inn was not such as a guest might ordinarily travel with, viz. a piano, and was known by the innkeeper at the time to have been bor- owner. Binns v. Pigot, 9 C. & P. 208. So, in Pox o. McGregor, 11 Barb. 41, it was held, that an innkeeper has no lien upon a horse put into his stable, unless belonging to a guest. But see Johnson v. Hill, 3 Stark. 172; Robinson ./.Walter, Popham, 127 ; Grinnell v. Cook, 3 Hill, 487. An innkeeper cannot detain the goods of a hoarder for the price of his board. Ewart v. Stark, 8 Rich. (S. Car.) 423. A lien is given in such cases in Massachu- setts, by statute. See Genl. Sts. c. 151, §29.] A 2 iV.-v/ ,i. J.- ■>->[ _>"'<' (h 1 ) [The owner must deliver the thing hired in a condition to be used according to the understanding of the parties. Sut- ton v. Temple, 12 M. & W. 52, 60. If property be bailed for hire for a specific time, and be attached on a writ against the bailor, and removed by the officer, the bailee will, notwithstanding, be liable for the use, to the bailor. Hartford u. Jack- son, 11 N. H. 145.] (i) Jones on Bailm. 86 ; 1 Smith L. C. 99 ; Cooper v. Barton, 3 Camp. 5, note. See however, Coggs v. Bernard, 2 Ld. Raym. 916; [Milton v. Salisbury, 13 John. 211 ; Hawkins v. Phythian, 6 B. Mon. 515; Harrington v. Snyder, 3 Barb. 380 ; Reeves v. Ship Constitution, 1 Gilpin, 579 ; Swigerf v. Graham, 7 B. Mon. 661 ; Mayor of Columbus v. Howard, 6 Geo. 213. Where both parties are silent as to the number of persons, who are to be per- mitted to ride in a hired carriage, the hirer is authorized to carry such number rowed of a third person, the innkeeper has as the vehicle was made for, not exceeding no lien on it against such third person. Broadwood v. Granara, 10 Exch. 417. In this last case Parke B. said : "My notion of the law on this point has always been, that an innkeeper has no lien except upon such goods of his guest as he is bound to receive into his inn with his guest. An innkeeper has no lien on a horse placed in his stable by some person other than the the ordinary load adapted to the team drawing the same. Harrington v. Snyder, 3 Barb. 380. See Swigert v. Graham, supra.] (k) Longman v. Gallini, Abb. Shipp. 9th ed. 320, n. (g). [But if the property be stolen from him, he must show that he used due and reasonable care of it. Brown v. Waterman, 10 Cush. 117.] 680 SUBJECT-MATTER OF CONTRACTS. Nor is the hirer of a horse liable for the ill-treatment thereof by a regular farrier, whose attendance he requires ; but if he himself prescribe for the horse, he is responsible. (V) And it seems that, to support an action for negligence in using a hired horse, it is not sufficient merely to prove that the horse was returned with broken knees, (m) But the hirer of a horse is bound to discontinue the use of it if it become exhausted and refuse its food, (n) So it has been held, that where one hires a chaise and horses to go a journey, he is not liable for an injury occasioned by the neg- ligence or misconduct of the post-boy. (o) And where the owners of a carriage were in the habit of hiring horses to draw it, and the owner of the horses provided a driver ; it was held, that the owners of the carriage were not liable for an injury caused by the negli- gence of the driver. (j>) So, if the lender of a carriage agree to keep it in " repair with- out any further charges whatever," the hirer is not liable for repairs rendered necessary by accident, and without his wilful default. (^) A bailee of goods for hire, even for a time certain, by selling the goods, determines the bailment ; (r) and the bailor may How bail- & ' , „ • -, ~ i , 1 ment for hire sue the purchaser as tpv a conversion thereof, though the purchase was bond fide, (s) And so if, during the con- (l) Per Lord Ellenborough, Dean v. a horse becomes disabled from lameness, Keate, 3 Camp. 5. during his return from a journey, for the (m) Per Lord Ellenborough, Dean v. performance of which and back he has been Keate, 3 Camp. 5 ; Cooper v. Barton, lb. hired, without any fault on the part of the 5, note ; [Harrington v. Snyder, 3 Barb, hirer, so that the hirer is compelled to pro- 380. But where the bailee for hire returns cure other means of returning, the ex- the hired property in a damaged condition, penses thereof maybe taken out of the and fails or refuses, at the time or subse- claim of the lender for the hire of the horse, quently, to give any account of the man- Harrington v. Snyder, 3 Barb. 380.] ner in which the injury occurred, the law (o) Dean v. Branthwaite, 5 Esp. 35 ; will presume negligence on his part, and Jones on Bailm. 88, 89. [See Stone u. the burden will be upon him to prove a Cheshire R. R. 19 N. H. 427 ; Hillard r. want of negligence. Logan v. Matthews, Richardson, 3 Gray, 349 ; post, " Servant."! 6 Barr, 417. Generally, however, in a (p) Laugher v. Pointer, 5 B. & C. 546; bailment of this kind, the burden of proof Quarman v. Burnett, 6 M. & W. 499. to show negligence is on the bailor. Bun- (q) Reading v. Menham, 1 Moo. & Rob. yan v. Caldwell, 7 Hnmph. 134; Story 2.34. Bailments, § 410 ; Beekman a. Shouse, 5 (r) Eenn v. Bittleston, 7 Exch. 152 ; Rawle, 179; Piatt u. Hibbard, 7 Cowen Bryant v. Wardell, 2 Exch. 479. 500; Schmidt u. Blood, 9 Wend. 268; (s) Cooper v. Willomatt, 1 C. B. 672 ; Eoote v. Storrs, 2 Barb. 326; Clark v. Loeschman u. Machin, 2 Stark. 311. Spence, 10 Watts, 335.] [Where one hires a horse to go an agreed (n) Bray c. Mayne, Gow, 1. [Where distance, and goes beyond that distance) CARRIERS. 681 tinuance of the bailment, the goods are taken in execution for a debt due from the bailee ; or are sold by the assignees of the bailee, un- der his bankruptcy ; this puts an end to the bailment, and the bailor may sue as for a conversion of the goods, (t) 3d. Locatio operis mercium vehendarum : and herein locatio oper- of carriers, public and private : M ' 1. A common carrier is one who undertakes, for hire, to trans- port from place to place, either by land or water, the whoisacom- goods (i 1 ) of such persons as may choose to employ mon camer - him ; (i 2 ) as, for instance, the owner or master of a general he is liable in trover for an unlawful con- version of the horse. Wheelock v. Wheel- wright, 5 Mass. 104 ; Story Bailments, § 232 ; Homer v. Thwing, 3 Pick. 492. And in such case the hirer is responsible for all loss or damage to the property, however it may occur ; Mayor of Colum- bus a. Howard, 6 Geo. 213 ; because the hirer is bound to use the thing hired, only in the manner and for the purpose for which it was hired. Rotch v. Hawes, 12 Pick. 136 ; Duncan v. Railroad Co. 2 Rich. 613 ; Harrington v. Snyder, 3 Barb. 380.] (t) Bryant v. Wardell, 2 Exch. 479 ; Fenn v. Bittleston, 7 Exch. 152. [If the property hired, being a wagon and harness, is injured while in the possession of the bailee, he may, in his own name, recover the amount of the injury against the wrong- doer ; Little v. Eosset, 34 Maine, 545 ; un- less the wrongdoer is the general owner, in which case the bailee can recover only the value of his special property. lb. ; White v. Webb, 15 Conn. 305 ; Benjamin v. Stremple, 13 111. 466 ; Hickok v. Buck, 22 Vt. 149.] (t 1 ) [Or money. Story Bailments, § 495 ; Sheldon v. Robinson, 7 N. H. 157 ; Angell Carriers, §§ 100, 101 ; Chouteau v. Steam- boat St. Anthony, 11 Missou. 226. See Hosea u. McCrory, 12 Ala. 349. But the transportation by steamboats of passengers or merchandise, or of both, does not necessarily imply that the owners hold themselves out as common carriers of money or bank bills. Citizens' Bank v. Nantucket Steamboat Co. 2 Story, 33 ; Farmers & Mechanics' Bank u. Cham- plain Transportation Co. 23 Vt. 186. See Dwight v. Brewster, 1 Pick. 50 ; Allen v. Sewall, 2 Wend. 327 ; S. C. 6 Wend. 335; Kemp v. Coughtry, 11 John. 109; Harrington u. M'Shane, 2 Watts, 443 ; Emery v. Hersey, 4 Greenl. 407.] (fi) [Per Parker C. J. in Dwight c. Brewster, 1 Pick. 50, 53 ; Robertson v. Kennedy, 2 Dana, 430 ; Sheldon v. Rob- inson, 7 N. H. 157, 163; Craig c. Chil- dress, Peck (Tenn.), 270, 271 ; Turney v. Wilson, 7 Yerger, 340-342 ; Moses v. Nor- ris, 4 N. H. 304 ; Elliott a. Russell, 10 John. 1 ; Kemp v. Coughtry, 11 lb. 107; M' Arthur v. Sears, 21 Wend. 190 ; Crosby v. Fitch, 12 Conn. 410 ; Hastings v. Pep- per, 11 Pick. 41 ; Abbott Shipp. (6th Am. ed.) 340, 382 ; Angell Carriers, §§ 67-123 ; Elkins v. Boston & Maine R. R. 23 N. H. 274, cited in note below. He is as much a common carrier on the first trip in the exercise of his employment, as on any subsequent trip, where he holds himself out to the public to carry for hire. Fuller v. Bradley, 25 Penn. St. 120. There is a discrepancy among the authorities in this country on the question, whether, in order to render a person a common carrier he must hold himself out as ready to engage in the transportation of goods for hire as a business to carry for all persons indifferently, or whether he may be held as a common carrier, though the transportation of goods be not his principal business, but only one in which he engages as a, casual occupa- tion. In Pennsylvania and in Indiana, it has been held that a wagoner, who, upon 682 SUBJECT-MATTER OF CONTRACTS. ship ; (u) a wharfinger who undertakes to convey goods from his wharf, in his own lighters ; (x) a mail contractor ; or the proprietor his own request, carries goods for hire, is a common carrier whether the transporta- tion be his principal and direct business) or an occasional and incidental employ- ment. Gordon v. Hutchinson, 1 "Watts & S. 285 ; Powers u. Davenport, 7 Blackf. 497. In both of these cases, the principal business of the carrier was that of » farmer. The same doctrine derives sup- port from the cases of Moses v. Norris, 4 N. H. 304"; McClure v. Hammond, 1 Bay, 99 ; Turney v. "Wilson, 7 Yerger, 340 ; Craig v. Childress, Peck (Tenn.), 270, 271 ; McClure v. Richardson, 1 Rice (S. C), 215 ; Chevalier u. Strahan, 2 Texas, 115. But a different rule was applied, where the carrier, not being a public carrier or en- gaged in carrying as a common business, undertook to transport the goods at the request of the employer. Satterlee v. Groat, 1 Wend. 272. And as generally opposed to the above doctrine, see Fisk v. Ross, 2 Kelly, 349 ; Jenkins v. Pickett, 9 Yerger, 480 ; Story Bailments, § 495 ; 2 Kent, 597 ; Samms u. Stewart, 20 Ohio, 69.] (u) Laveroni c. Drury, 8 Exch. 166, 170 ; Trent & Mersey Navigation v. Wood, 4 Dougl. 287 ; Colvin v. Newberry, 8 B. & C. 166; [Kemp u. Coughtry, 11 John. 107; Crosby v. Fitch, 12 Conn. 410; Parker v. Flagg, 26 Maine, 181 ; Hastings v. Pepper, 1 1 Pick. 41 ; McArthur v. Sears, 21 Weud. 190. .Whether steamboats are so ev. l aged as to charge their owners as common carriers, depends entirely upon the nature and extent of the employment they are engaged in, either express or im- plied, which is authorized by the owners. Citizens' Bank u. Nantucket Steamboat Co. 2 Story, 33. But steamboats are gen- erally, in this country, engaged in carrying goods, as well as persons, for hire, and their owners are hence answerable as common carriers. Jencks v. Coleman, 2 Sumner, 221 ; Harrington u. M'Shane, 2 Watts, 443 ; Taylor v. Wells, 3 Watts, 65 ; War- den v. Green, 6 Watts, 424 ; Hale v. New Jersey Steam Navigation Co. 15 Conn. 539 ; Hurd v. Burgess, 4 Whart. 204 ; Faulkner v. Wright, 1 Rice, 107 ; Patton v. M'Grath, 1 Rice, 162; S. C. Dudley (S. Car.), 159 ; Bennett v. Filyaw, 1 Flor- ida, 403 ; Allen v. Sewall, 2 Wend. 327 ; Bank of Orange v. Brown, 3 Wend. 158 ; Powell v. Myers, 26 Wend. 591 ; M'Ar- thur v. Sears, 21 Wend. 190 ; Steamboat Co. v. Bason, Harper, 262 ; Swindler v. Hilliard, 2 Rich. 286 ; Jones v. Pitcher, 3 Stew. & Port. 136; Sprowl u. Kellar, 4 Stew. & Port. 382 ; Bowman v. Hilton, 11 Ohio, 303 ; Dunseth v. Wade, 2 Scam- mon, 289 ; Plaisted v. Boston & Kennebec Steam Navigation Co. 27 Maine, 132 ; Story Bailments, § 496, 497. So of canal boatmen. Teall v. Sears, 9 Barb. 317; Spencer v. Daggett, 2 Vt. 92 ; Parsons v. Hardy, 14 Wend. 215 ; Harrington v. Lyle, 2 Nott & McCord, 188 ; Williams v. Branson, 1 Murphey, 41 7 ; Smyrl v. Ni- olan, 2 Bailey, 421 ; Humphreys v. Reed, 6 Whart. 435 ; De Mott v. Larraway, 14 Wend. 22 ; Bowman v. Teall, 23 Wend. 306; Wilcox u. Parmelee, 3 Sandf. 610. So of ferrymen , if they hold themselves out as common carriers. Story Bailments, § 496 ; 2 Kent, 599 ; Smith v. Seward, 3 Barr, 342 ; Pomeroy v. Donaldson, 5 Missou. 30; Gardner v. Green, 8 Ala. 96 ; Spivy v. Fanner, 1 Murphey, 339 Walker v. Jackson, 10 M. & W. 161 Littlejohu V. Jones, 2 McMullan, 365 Cohen v. Hume, 1 McCord, 439 ; Babcock v. Herbert, 3 Ala. 392 ; Fisher v. Clishee, 12 111. 344 ; White v. Winnisimmet Co. 7 Cush. 156, per Dewey J.; Wilsons v. Ham- ilton, 4 Ohio (N. S.), 722 ; Albright u. Penn, 14 Texas, 290.] Meaning of the exception, " perils of sea, and act of God ;" Buller v. Fisher, Pcake Add. Ca. 183; Siordet v. Hall, 4 Bing. 607. Meaning of the terms, " dangers and accidents of navi- gation ; " Laurie u. Douglas, 15 M. & W. 746. {x) Morning v. Todd, 1 Stark. 72. CARRIERS. 683 of a common stage-coach or wagon. («/) So a railway company are common carriers, unless where they restrict their liability by means of a special contract, (z) And a carrier is equally a common car- rier, and subject to the common law liability as such, although one of the termini of his journey be out of England, (a) But it has been held, that a person who conveys passengers only, is not a common carrier. (5) Nor is a town carman, who does not (y) Coggs v. Bernard, 2 Lord Raym. 918; Mors v. Slue, T. Eaym. 220; Gis- bourn v. Hurst, 1 Salk. 249 ; Middleton v. Fowler, lb. 282 ; Lovett v. Hobbs, 2 Show. 128 ; Bac. Abr. Carrier; and see recital of 1 "Will. 4, c. 68. [The proprietors of a stage-coach used for the conveyance of passengers, are not, of course, liable as common carriers for goods sent by such coach. Beekman v. Shouse, 5 Rawle, 179. But if they have been in the practice of receiving and carrying for hire in such coach, parcels and packages of merchan- dise, for persons not passengers therein, they incur the responsibility of carriers in relation to such goods. lb. ; Dwight v. Brewster, 1 Pick. 50 ; Allen u. Sewall, 2 Wend. 327; Sewall «. Allen, 6 Wend. 335; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251 ; Camden &c. Railroad Co. v. Burke, 13 Wend. 611, 627, 628; Story Bailm. (2d ed.) § 500; Jones v. Voorhees, 10 Ohio, 145 ; Merwin v. Butler, 17 Conn. 138; Bean v. Sturte- vant, 8 N. H. 325 ; Clark v . Faxton, 21 Wend. 153. The driver of a stage-coach in the general employment of the pro- prietors of the coach, and in the habit of transporting packages of money for a small compensation, which was uniform, whatever might be the amount of the pack- age, is a bailee for hire, answerable for ordinary negligence, and not subject to the responsibilities of a common carrier; there being no evidence to show him a common carrier, farther than the fact that he took such packages of money as were offered. Sheld»n v. Robinson, 7 N. H. 157. Where the owners of a stage-coach employ a driver under a contract that he shall re- ceive a certain sum of money per month, and the compensation that should be paid for the carriage of small parcels, the own- ers are answerable for the negligence of the driver in . not delivering * parcel of that description, intrusted to him to carry, unless this arrangement is known to the proprietor of the goods, so that he con- tracts with the driver as principal. Bean v. Sturtevant, 8 N. H. 146. See, also, Allen -v. Sewall, 2 Wend. 327; Hosea v. McCrory, 12 Ala. 349 ; Farmers' & Me- chanics' Bank v. Champlain Transporta- tion Co. 23 Vt. 186.] As to proof that a party is a common carrier, see Upston v. Slark, 2 C. & P. 598. As to the liability of hackney-coach proprietors, as carriers, see Powles v. Hider, 6 E. & B. 207 ; TJp- share v. Aidee, 1 Com. 25 ; Ross v. Hill, 2 C. B. 877. The postmaster-general is not a common carrier within the custom of* the realm. Lane u. Cotton, 1 Ld. Raym. 646 ; Whitfield v. Lord Le Despen- ser, Cowp. 754; Nicholsons. Mounsey, 15 East, 384. (z) Palmer v. Grand Junction Railway Company, 4 M. & W. 749 ; [Hubbard J. in Thomas v. Boston & Providence R. R. Corp. 10 Met. 472 ; Parker v. Great West- ern Railway Co. 7 Man. & Gr. 253 ; Mus- champ v. Lancaster Railway Co. 8 M. & W. 421 ; Pickford t. Grand Junction Rail- way Co. 12 M. & W. 766 ; Merriam v. Hartford & New Haven R. R. Co. 20 Conn. 354 ; Watson <.. The Ambergate &c. Railway Co. 5 Eng. Law & Eq. R. 497 ; Jordan v. Fall River R. R. 5 Cush. 69. An express company ; Southern Ex- press Co. v. Newby, 36 Geo. 365.] (a) Crouch v. London & North Western Railway Company, 14 C. B. 255. (b) See per Mansfield C. J. Christie v. Griggs, 2 Camp. 79, 81 ; Aston v. Heaven, 2 Esp. 533, 534 ; [per Hubbard J. in In- 684 SUBJECT-MATTER OF CONTRACTS. ply from one terminus to another, but merely under- Who is not. , , 1 ■ 1 s x takes casual jobs, a common carrier, {c) And a common carrier is bound to convey the goods of any per- Obiigation to son who offers to pay his hire, (c 1 ) — unless his carriage cany. ^ e a l rea( jy jfull, (c 2 ) or the risk sought to be forced on him be extraordinary ; (c 3 ) or unless the goods be of a description which he cannot convey, or which he is not in the habit of convey- ing. (Jl) And this exception applies to the case of a railway corn- town to another, or from one part of a town or city to another, are common car- riers. Story Bailments, § 496. So Mr. Chancellor Kent. 2 Kent, 598, 599 ; Rob- ertson v. Kennedy, 2 Dana, 430. See Campbell v. Morse, Harper (S. G), 468. But in Moses o. Boston & Maine R. R. 24 N. H. 40, it was said by Perley J. that " it may be doubted whether cart- men or truckmen employed to carry goods from one part of a city or town to another, are to be regarded as common carriers within the legal meaning of the term.'' Robinson v. Dunmore, 2 Bos. & Pul. 416 ; Brind o. Dale, 8 C. & P. 207. Express- men who forward goods from one place to another for hire, in conveyances owned by others, are not liable as common carriers, but as bailees for hire, to forward goods by the ordinary modes of conveyance, and have u, legal right to define the extent of their liability. Hersfield o. Adams, 19 Barb. 577. See Stadhecker v. Combs, 9 Rich. Law (S. C), 193.] (c 1 ) [Per Nelson J. in New Jersey Steam Navigation Co. v. Merchants Bank, 6 How. (U. S.) 382, 383 ; Hollister v. Now- lcn, 19 Wend. 234 ; Cole v. Goodwin, 19 Wend. 251 ; Citizens' Bank v. Nantucket Steamboat Co. 2 Story, 35 ; M'Gill v. Rowand, 3 Barr, 451; per Shepley C. J. in Sagcr v. Portsmouth, S. P. & E. R. R. Co. 31 Maine, 234 ; Crouch v. Lon- don & North Western Railway Co. 14 C. B. 255 ; Parke B. in Johnson v. Mid- land Railway Co. 4 Exch. 367 ; Fish r. Clark, 2 Lansing, 176.] (c' 2 ) [Lovett v. Hobbs, 2 Shower, 127.] (c 3 ) [Pate v. Henry, 5 Stew. & Port. 101.] (d) 1 Smith L. C. 101 b; and see per . Bills, 9 Met. 1 ; Camden & Am- boy R. R. Co. v. Burke, 13 Wend. 626 ; Boyce v. Anderson, 2 Peters, 155 ; Stokes u. Saltonstall, 13 Peters, 181 ; Parker C. J. in Bennett v. Dutton, 10 N. H. 486. One instance of the transportation of goods by a railroad passenger train, and of the payment of freight for them, does not tend to prove that the company exer- cise the business of common carriers, by such trains, as u, public employment, or undertake to carry goods in such way for persons generally ; and it is not com- petent evidence to be submitted to a jury, as tending to prove them to be common carriers of goods by such trains. Elkins v.Boston & Maine R. R. 23 N. H. 275. As to the extent to which telegraph companies maybe classed with common carriers, see Ellis v. American Tel. Co. 13 Allen, 226 ; Playford v. United King. Tel. Co. L. R. 4 Q. B. 707 ; Western U. Tel. Co. v. Carew, 15 Mich. 525 ; N. Y. & Wash. Tel. Co. v. Dryburg, 35 Penn. St. 298 ; De Rutte v. N. Y., Albany & Buffalo Tel. Co. 1 Daly, 547 ; Parks r. Alta Calif. Tel. Co. 13 Cal. 422 ; Birney v. N. Y. & Wash. Printing Tel. Co. 18 Md. 341 ; Breese v. TJ. K. Tel. Co. 45 Barb. 274 ; Leonard v. N. Y., Albany & Buffalo Tel. Co. 41 N. Y. 544 ; Baldwin <>. U. S. Tel. Co. 1 Lansing, 125 ; Sweatland v. Illinois & Miss. Tel. Co. 17 Iowa, 433 ; Graham v. Western U. Tel, Co. 10 Am. Law Reg. (X. S.) 319.] But see per Car. Brotherton u. Wood, 3 B. & B. 54, 02. (c) Brind v. Dale, 2 Moo. & Rob. 80. [Mr. Justice Story lays it down that truck- men, wagoners, teamsters, cartmen, and porters, who undertake to carry goods for hire, as a common employment, from one CARRIERS. 685 pany, as well as to that of any other carrier ; the 8 & 9 Vict. c. 20, s. 86, — which enacts, that " it shall be lawful " for such a company to carry upon the railway " all such goods as shall be offered to them for that purpose," — being held to be permissive, and not compul- sory, (e) And by the 29 & 30 Vict. c. 69, s. 6, a common car- Exception as rier is not bound to receive or carry any goods which are Xtgwms specially dangerous, within the meaning of that act. (/) s°° ' Goods must one intrusted by him to receive them. Ci) And such *>e delivered to tliG carrisr. delivery must be in conformity with the known course Cockburn L. C. J. Garton v. Bristol & Railway Co. L. R. 5 C. P. 1. [As to the Exeter Railway Company, 1 B. & S. 112, 162 ; Jackson v. Rogers, 2 Show. 327 ; •Riley v. Home, 5 Bing. 217 ; [Sewall v. Allen, 6 Wend. 335 ; King v. Lenox, 19 John. 235 ; Tunnel v. Pettijohn, 2 Har- ring. 48.] (e) Johnson v. Midland Railway Com- pany, 4 Exch. 367 ; and see Oxlade v. North Eastern Railway Company, 15 C. B. N. S. 680. (/) By sects. 1 and 2, these are nitro- glycerine orglonoine oil, and any other goods which her majesty may, from time to time by order in council, declare to be specially dangerous. (g) See Hales v. London & North West- ern Railway Company, 4 B. & S. 66; Briddon v. Great Northern Railway Com- pany, 28 L. J. Exch. 51 ; Davis v. Garrett, 6 Bing. 716. [See Crosby u. Eitch, 12 Conn. 410 ; Hand v. Baynes, 4 Whart. 204; Charleston & Columbia Steamboat Co. v. Bason, Harper (S. Car.), 262; Powers v. Davenport, 7 Blackf. 497 ; Law- rence u. McGregor, Wright, 193; Smith v. Whitman, 13 Missou. 352.] (h) Myers v. London & South Western duties of telegraph companies in sending dispatches, and their liability for failure in performance, see Western Union Tel. Co. v. Carew, 15 Mich. 325; Swcatland v. Illinois & Miss. Tel. Co. 17 Iowa, 433; New York & Wash. Print. Tel. Co. v. Dryburg, 35 Penn. St. 298; Leonard v. New York, Albany & Buffalo Tel. Co. 41 N. Y. 544 ; Playford o. United King. Tel. Co. L. R. 4 Q. B. 707. How far liable for the acts and negligences of lines over which they send messages beyond their own lines, see De Rutte v. N. Y., Albany & Buffalo Tel. Co. 1 Daly, 547 ; Baldwin u. U. S. Tel. Co. 1 Lansing, 125; Squire v. West- ern Union Tel. Co. 98 Mass. 232 ; Western Union Tel. Co. v. Carew, 15 Mich. 525; Baldwin v. U. S. Tel. Co. 54 Barb. 505 ; Leonard v. N. Y., Albany & Buffalo Tel. Co. 41 N. Y. 544.] (i) What ia a sufficient delivery to the carrier, see Burrell v. North, 2 C. & K. 681 ; and Roscoe on Ev. 7th ed. 378 ; [Southern Express Co. o. McVeigh, 20 Grattan, 264 ; Blanchard v. Isaacs, 3 Barb. 378 ; Trow- bridge v. Cbapin, 23 Conn. 595, 597; Story Bailm. § 532 et seq. ; 2 Kent, 604 ; 686 SUBJECT-MATTER OF CONTEACTS. of the carrier's business or it will not bind him. Where, therefore, the owner of cattle, in defiance of what he knew to be the course of business of a railway company, permitted them to be delivered to a servant of the company at one of their stations, without getting an acknowledgment from the proper officer that the cattle had been received for the purpose of being carried ; it was held that the com- pany was not responsible for their non-delivery. (k~) So, where goods were delivered to a railway company, under certain condi- tions which were held to be reasonable within the 17 & 18 Vict. c. 31, s. 1, this was held not to be a delivery to them as common Angell Carriers, § 140 ; Hosea v. Mc- Crory, 12 Ala. 349; Michigan Southern E. B. Co. v. MeDonough, 21 Mich. 165. As soon as such delivery is complete, the responsibility of the carrier, as such, com- mences. Story Bailments, § 532; 2 Kent, 604 ; Angell Carriers, § 129 et seq. § 135, et seq. ; Southern Express Co. o. Newby, 36 Geo. 635. And the delivery is complete, when the goods are received by the carrier at his office, depot, or station ; Camden & Amboy E. E. &e. Co. a. Belknap, 21 Wend. 354 ; Woods v. Bcvin, 13 HI. 746; for the purpose of transportation. Wade v. Wheeler, 3 Lansing, 201 ; JEtna. Ins. Co. v. Wheeler, 5 Lansing, 480. The de- livery may be either actual or constructive. As, where it is a constant practice and usage of the carrier to receive property left for transportation at a particular place, without any special notice of such deposit, the delivery of goods at that place is a good delivery to the carrier, to render him liable for the loss of the goods, although neither he, nor his agent, was otherwise notified of such delivery. Merriam v. Hartford & Now Haven E. E. Co. 20 Conn. 354. See Moses v. Boston & Maine R. E. 24 N. H. 71 ; Clark v. Needles, 25 Penn. St. (1 Casey) 3.38. But, generally, when the goods are left for the carrier, ex- press notice must be given to him ; 2 Kent, 604 ; Packard v. Getman, 6 Cowcn, 757 ; Story Bailments, § 532 ; or to his authorized a>;cnt. D'Anjou o. Deagle, 3 Harr. & J. 206 ; Jenkins v. Picket, 9 Ver- ger, 480. It is not, however, necessary to a delivery that the goods should be entered on any freight list, or that the contract of hire should be verified by any written memorandum. Angell Carriers, § 136 ; Citizens' Bank v. Nantucket Steamboat Co. 2 Story, 16; Parker v. Great Western Eailway Co. 7 Man. & Gr. 253. It is not necessary that the package should be de- livered at the office of the carrier. If it be received by the carrier, or by his agent, and entered on the way-bill at another place, this is sufficient to bind the carrier. Phillips v. Earlc, 8 Pick. 182. Where a railroad corporation, being common car- riers, have a warehouse, at which they re- ceive goods for transportation, if goods are delivered there, with instructions to for- ward presently, while the goods remain in the warehouse, for the convenience of the railroad, until they can be forwarded in the usual course of business, the railroad hold them as common carriers, and are liable for them as such. Moses r. Boston & Maine E. E. 24 N. H. 71 ; Clark v. Needles, 25 Penn. St. (1 Casey) 338; Blossom v. Griffin, 3 Kernan (N. Y.), 569. But if the goods are kept back in the warehouse, for the convenience of the owner, and by his order, the railroad will be liable as depositaries only. Moses v. Boston & Maine E. E. 24 N. H. 71.] A special contract with the keeper of a book- ing-office, who was also a part owner in a stage-coach, binds the other owners of the coach. Hcsley v. Mcars, 5 B. & C. 504. A carriers leccipt for goods is not liable to stamp duty. 33 & 34 Vict. c. 97, sched Warrant for Goods. (k) Slim u. Great Northern Eailway Company, 14 C. B. 647. CARRIERS. 687 carriers. (7) And if goods be delivered to A., under a contract that the owner or his servant shall go with them, and take care of them, that is not a delivery to A. as a common carrier, (m) But if a package belonging to a passenger by railway, be put under the seat of the carriage in which he travels, by one of the company's servants, that will be a sufficient delivery to the com- pany. O) Again : the hire charged by the carrier must be reasonable. But, at common law, it need not be uniform; that is, the Hi h; carrier is not bound, by the common law, not to charge more to one customer or class of customers, for any service, than he charges for the same service to another customer or class of customers, or to the public generally. (0) And although a carrier is entitled, by the common law, to insist on the full price of the carriage being paid beforehand ; (/>) yet, where he is sued for re- (l) White v. Great Western Railway (0) See Baxendale v. Eastern Counties Company, 2 C. B. N. S. 7 ; and see Si- mons v. Great Western Railway Company, lb. 620. (m) Brind v. Dale, 8 C. & P. 207 ; East India Company u. Pullen, 1 Stra. 690. [See Eisher v. Clisbee, 12 111. 344 ; Story Bailments, § 533. A passenger in the railroad cars cannot recover for an over- coat, which he has not delivered into the custody of any of the agents or servants of the company, but which he placed on the seat of the car on which he sat, and forgot to take with him when he left, and which was afterwards stolen. Tower v. Utica & Schenectady R. R. Co. 7 Hill, 47. See Orange Co. Bank v. Brown, 9 Wend. 85; Cohen v. Erost, 2 Duer (N. Y.), 335. An acceptance of the goods in some way is indispensable. This may be in a special manner, or according to the usage of the carrier's business. Angell Carriers, § 140 ; Story Bailm. § 533 ; 2 Kent, 598 ; Lovett v. Hobbs, 2 Shower, 127 ; Miles v. Cattle, 6 Bing. 743.] (n) Per Wilde C. J. Richards v. Lon- don, Brighton, & South Coast Railway Company, 7 C. B. 839, 858. The au- thority of this case has been doubted ; see per Pollock L. C. B. and Bramwell B. Stewart o. London & North Western Railway Company, 3 H. & C. 135. Railway Company, 4 C. B. N. S. 63, 78, 83 ; Branley c. South Eastern Railway Company, 12 C. B. N. S. 63. But the rule is different in the case of railway companies incorporated by statute. See 8 & 9 Vict. c. 20, s. 90; 31 & 32 Vict. c. 119, s. 16 ; Parker v. Great Western Rail- way Company, 7 M. & G. 253 ; Pickford v. Grand Junction Railway Company, 10 M. & W. 399 ; Parker v. Great Western Railway Company, 11 C. B. 545; 6 E. & B. 77 ; Edwards u. Great Western Rail- way Company, lb. 588 ; Crouch v. Great Northern Railway Company, 9 Exch. 556 ; 11 Exch. 744; Crouch v. London & North Western Railway Company, 14 C. B. 255 ; Baxendale v. Great Western Railway Company, 14 C. B. N. S. 1 ; Sutton v. Great Western Railway Com- pany, 3 H. & C. 800 ; Great Western Railway Company v. Sutton, L. Rep. 2 Ap. Ca. 226. What constitutes an " undue preference" within thel7 & 18 Vict.c.31, ». 2, see Re Ransome, 4 C. B. N. S. 135, 155; Nicholson v. Great Western Rail- way Company, 5 C. B. N. S. 366. (p) Per Cur. Wyld v. Pickford, 8 M. & W. 443, 458 ; [Stewart v. Bremer, 63 Penn. St. 268.] As to the carrier's right to insist on being paid for booking ; v. Jack- son, Peake Ad. Ca. 185. 688 SUBJECT-MATTER OF CONTRACTS. fusing to carry, the declaration need only aver readiness and willing- ness to pay the hire, without averring an actual tender thereof; because the money is not required to be paid down by the customer, until the carrier has received the goods which he is bound to carry. (_q) And it appears that a carrier will be bound by the representation of a clerk in his office, as to the amount for which he will carry any particular kind of goods, (r) By the common law a carrier has, both as against the consignor His Hen at ar >d the consignee, a lien on the goods carried, for the common law. gum c j ue j n reS p ec t f the carriage of those goods. («) And, by agreement with the consignor or consignee, or by virtue of a usage or course of dealing between the parties from which such an agreement may be inferred, the carrier may have the right, either as against the consignor or the consignee, to retain the goods for the general balance clue from him for carriage, (t) But the fact of the carrier having the right of general lien as against either of these parties, does not of itself entitle him to retain the goods as against the other of them, in respect of the general balance due from the former for the carriage of other goods, (w) And the 8 Vict. c. 20, s. 97, — which gives railway companies Lien of rail- ^ ie r ^g nt °f general lien " if, on demand, any person fail way com- to pay the tolls due in respect of any carriage or goods," 8 Vict! c. 20, — has been held not to apply, where the tolls are due to the company for the conveyance by them of goods as carriers ; but only where they are due from persons who have used the line, by conveying goods thereon in their own carriages, (x) Nor can the company exercise the right given by the above section, without first making a demand of the sum actually due to them for tolls. Qf) Again : a common carrier is, by the ancient custom or common „ . , law of the realm, in the nature of an insurer ; his war- Carrier of _ ' goods is an ranty being, safely and securely to carry. And, accord- insurer. -Ill 11 -1 f !• • • ingly, whether he be guilty or negligence or not is lm- (q) Pickford v. Grand Junction Rail- (u) See Oppenheim v. Russell, 3 Bos. & way Company, 8 M. & W. 372, 378. P. 42 ; Butler v. Woolcott, 2 N. R. 64. (r) Per Lord Tentcrden, Winkfield u. (x) Wallis v. London & South Western Packington, 2 C. & P. 599. Railway Co. L. Rep. 5 Ex. 62. (s) See Oppenheim v. Russell, 3 Bos. & (y) Pield u. Newport &c. Railway Co. P. 42, 46, 53. 3 H. & N. 409. (t) See Aspinall v. Pickford, 3 Bos. & P. 44, n. (a). CARRIERS. 689 material, ( «/ a ) for the warranty is broken by his not conveying, or not delivering the goods intrusted to him. (a) At common law, therefore, he is not excused or discharged in case of the Joss of, or injury to goods intrusted to him, unless such loss or injury be oc- casioned immediately by the act of God or the king's enemies, (a) (y x ) [It is no defence to an action on the 700. But a railroad company, which case against a common carrier, that he undertakes to carry live animals for hire, used due care. Mershon v. Hohensack, 2 will not be liable for an injury to animals N. J. 372. Proof of negligence is un- occurring simply from their own vicious- necessary to charge him, and proof of ness or unruliness, while being carried in diligence will not excuse him. M'Call v. a suitable car. Smith v. Newhaven & Brock, 5 Strobh. 119.] Northampton B. B. Co. 12 Allen, 531 ; (2) Per Wilde C.J. Bichardsf. London, ' Hall v. Eenfro, 3 Met. (Ky.) 51; Clarke Brighton & South Coast Bailway Co. 7 v. Bochester & Syracuse Bailroad, 4 Ker- C. B. 839, 858 ; and see Midland Bailway nan, 570 ; Blower v. Great Western Bail- Co. v. Bromley, 17 C. B. 372. way Co. L. B. 7 C. P. 655; Kendall v. (a) Bourne v. Gatliffe, 7 M. & G. 850 ; London & South Western Bailway Co. 11 C. & P. 45 ; Oakley v. Portsmouth &c. L. E. 7 Exch. 373. Por the meaning of Steam Packet Co. 11 Exch. 618 ; 1 Inst, the technical expression "act of God," 89; Jones on Bailm. 104; Bull. N. P. see M' Arthur v. Sears, 21 Wend. 190; 70; Coggs v. Bernard, 2 Ld. Baym. Abbott Shipp. (6th Am. ed.) 382, and 918; Macklin v. Waterhouse, and Biley note; Story Bailm. §§ 25, 511 ; Williams 0. Home, 5 Bing. 212, 217 ; [Klauber v. v. Grant, 1 Conn. 487 ; Angell Carriers, American Express Co. 21 Wise. 21 ; Hale § 154 et seq. It excludes all accidents 1). New Jersey Steam Nav. Co. 15 Conn, which may have accrued by human agency, 539; Boberts v. Turner, 12 John. 232; whether of the carrier or of a third person. Harrington v. M'Shane, 2 Watts, 443 ; lb. See Backhouse v. Sneed, 1 Murph. Eagle v. White, 6 Whart. 517; Thomas 173; Ewart v. Street, 2 Bailey, 157; 1 v. Boston & Prow E. E. Corp. 10 Met. Smith Lead. Cas. (Am. ed.) 180; Shelden 476; Hastings v. Pepper, 11 Pick. 42; u. Bobinson, 7 N. H. 163,164; Moses v. Swetland v. Boston & Albany B. B. Norris, 4 N. H. 306 ; Hastings v. Pepper, Co. 102 Mass. 276, 282; Bailroad Co. u. 11 Pick. 42; Pish v. Chapman, 2 Geo. Beeves, 10 Wallace, 176 ; Dunson v. New 349 ; Gordon v. Buchanan, 5 Yerger, 32 ; York Central B. E. Co. 3 Lansing, 265 ; Turney v. Wilson, 7 Yerger, 340 ; Sprowl Atwood v. Eeliance Transportation Co. 9 v. Kellar, 4 Stew. & Porter, 382 ; Bobertson Watts, 87 ; Walpole v. Bridges, 5 Blackf. v. Kennedy, 2 Dana, 4.30 ; Colt v. M'Me- 173; Pomeroy v. Donaldson, 5 Missou. chen, 6 John. 100. Common carriers are 36 ; Swindler v. Hilliard, 2 Bich. 286 ; not liable for delay or loss occasioned by Drusan v. Murgatory, 1 Wash. C. C. 13, adverse winds, failure of wind, the foun- 17; Plaisted v. Boston & Kennebec Steam derous situation of roads, unusually low Nav. Co. 27 Maine, 132; Mershon v. Ho- tides, or the like. But, if occasioned by bensack, 2 N. J. 372 ; New Brunswick their taking a greater quantity of corn- Co. v. Tiers, 4 Zabr. (N. J.) 697 ; Dorr v. modities than they had the means of trans- New Jersey Steam Nav. Co. 1 Kernan porting, or by unskilful navigation of their (N.Y.),485; Pendall v. Bench, 4 McLean, vessels, or any other circumstances, not 259 ; New Jersey Steam Nav. Co. v. Mer- the immediate act of God, or of the ene- chants' Bank, 6 How. (U. S.) 381, 382; mies of the state, then they are chargeable. Sager v. Portsmouth, S. P. & E. B. B. Boyle 0. M'Laughlin, 4 Harr. & J. 291 ; Co. 31 Maine, 234, per Shepley C. J.; Williams v. Bronson, 1 Murph. 417; Wil- Winslow v. Vt. & Mass. E. E. Co. 42 Vt. liams v. Grant, 1 Conn. 487 ; Campbell v. vol. 1. H 690 SUBJECT-MATTER OF CONTRACTS. And so he is liable, at common law, though he be robbed ; (6) or although the goods be destroyed by an accidental fire ; (c) or be wrongfully seized by third persons, (c?) But a common carrier is not responsible for delay in the delivery of goods, where such delay is occasioned by causes which are beyond his control, (e) And a carrier may limit his responsibility, by receiving the goods subject to certain conditions, or in any other manner making a special contract with his customer. (/) But not against de- lay. Carrier may limit his lia- bility, by contract. Morse, Harper, 468; Clark v. Barnwell, 12 How. (U. S.) 272. See Parsons v. Hardy, 14 Wend. 215. The freezing of canals, rivers, and arms of the sea will excuse a loss arising from delay of a common car- rier by water. Bat the carrier is bound to use ordinary forecast in anticipating the obstruction ; must use the proper means to overcome it ; exercise due diligence to complete his undertaking to carry and deliver, as soon as the obstruction is re- moved ; and, in the mean time, must not be guilty of negligence in the care of the property ; nor deviate from the course of the voyage prescribed because of the ob- struction by ice. Angell Carriers, § 160 ; Lowe v. Moss, 12 Illinois, 477; Bowman u. Teall, 23 Wend. 306 ; Parsons v. Hardy, 14 Wend. 215 ; Harris v. Band, 4 N. H. 259 ; Hand a. Baynes, 4 Whart. 204 ; Crosby v. Fitch, 12 Conn. 410 ; Richards v. Gilbert, 5 Day, 415 ; Swetland v. Bos- ton & Albany E. R. Co. 102 Mass. 282, 283 ; Ballentine v. North Missouri R. R. Co. 40 Missou. 491. But a common car- rier is liable for a loss caused to goods by unnecessary delay ; Scoville v. Griffith, 2 Keruan (N. Y.), 509 ; Nettles v. R. R. Co. 7 Rich. (S. C.) 790; and unseaworthi- ness of the vessel. Smith v. Whitman, 13 Missou. 352. So, where the carrier allowed his wagon, in which he was carrying goods, to stick fast in a fording creek, and the water suddenly rising, dam- aged the goods, he was held liable for the damage. Campbell v. Morse, Harper (S. C), 468.] (6) Jones on Bailm. 103 ; 1 Inst. 89 a; 1 Roll. Ab. 2. What constitutes a loss by robbery, within an exception of robbery, "by special contract; Rothschild v. Royal Mail Steam Packet Company, 7 Exch. 734; 21 L. J. Exch. 273; Latham v. Stanbury, 3 Stark. 143. (c) Forward v. Pittard, 1 T. R. 27; Hyde u. The Trent & Mersey Naviga- tion Company, 5 T. R. 389. [Unless the fire be caused by lightning. Angell Car- riers, § 156; Thorsgood v. Marsh, Gow R. 105 ; Gilmore v. Carman, 1 Sm. & M. 279 ; Parker v. Flagg, 26 Maine, 181 ; Chevallier v. Straham, 2 Texas, 115 ; Par- sons v. Monteath, 13 Barb. 353 ; Hale v. New Jersey Steam Nav. Co. 15 Conn. 539, 545; Patton v. McGrath, Dudley (S. C), 159 ; Singleton v. Hilliard, 1 Strobh. 203.] (c?) _Gosling v. Higgins, 1 Camp. 451. (e) Taylor v. Great Northern Railway Company, L. R. 1 C. P. 385 ; [Swetland v. Boston & Albany R. R. Co. 102 Mass. 276 ; ante, 689, note (a).] (/) See 11 Geo. 4 & 1 Will. 4, e. 68, s. 6 ; 17 & 18 Vict. c. 31, s. 7 ; [Farnham v. Camden &c. R. R. Co. 55 Penn. St. 5.3 . American Express Co. v. Sands, 55 Penn. St. 140; Ricketts v. B. & O. R. R. Co. 61 Barb. 18 ; Grace v. Adams, 100 Mass. 505 ; Squire v. New York Central Railroad Co. 98 Mass. 239 ; York Co. v. Central R. R. Co. 3 Wallace, 107 ; Judson u. Western R. R. Corp. 6 Allen, 490 ; Hooper v. Wells, 27 Cal. 1 1 ; Bissell u. New York Central R. R. Co. 25 N. Y. 442 ; Buckland Adams Express Co. 97 Mass. 124 ; Illinois Central R. R. Co. v. Frankenburg, 54 111. 88 ; White v. Great Western Railway Co. 2 C. B. N. S. 7 ; Sager u. The Ports- mouth, S. & P. & E. Railroad Co. 31 CARRIERS. 691 In the case of railway and canal companies, however, such con- ditions and contracts must be just and reasonable ; and Contracts by they must, in each case, be signed by the customer, or canaiTom- by the person who delivers (jf) the goods for carriage ; P anies - or he will not be bound thereby. (K) Maine, 228 ; Dorr v. New Jersey Steam Nav. Co. 4 Sandf. 136; Reno t>. Hogan, 12 B. Mon. 63 ; Bingham v. Rogers, 6 Watts & S. 495 ; Swindler v. Hilliard, 2 Rich. 286 ; Parker v. Elagg, 26 Maine, 181 ; Beckman v. Shouse, 5 Rawle, 179 ; The N. Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 382; Parsons v. Monteath, 13 Barb. 353 ; Stoddard v. Long Island R. R.Co. 5 Sandf. 180 ; Cam- den & Amboy R. R. Co. v. Baldauf, 16 Penn. St. 67 ; Farmers' & Mechanics' Bank v. Champlain Transportation Co. 23 Vt. 186; Angell Carriers, § 232 et seq.; Kim- ball v. Rutland R. R. Co. 26 Vt. 247. See contra, Gould v. Hill, 2 Hill (N. Y.), 623 ; Cole v. Goodwin, 19 Wend. 251; Fishw. Chapman, 2 Kelly, 349. In the United States, the current of authority is in favor of holding the carrier responsible for mis- conduct and for negligence, notwithstand- ing his liability may be limited by a special agreement or notice. Laing v. Colder, 8 Barr, 479 ; Reno v. Hogan, 12 B. Mon. 63 ; Camden & Amboy K. R. Co. v. Baldauf, 16 Penn. St. 67 ; Dorr v. The New Jersey Steam Nav. Co. 4 Sandf. 136 ; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 344 ; Slocum v. Fairchild, 7 Hill (N. Y.), 292; Swindler v. Hilliard, 2 Rich. 286 ; Sager v. Portsmouth, S. &P. & E. Railroad Co. 31 Maine, 228 ; Goldey v. Penn. R. R. Co. 30 Penn. St. 242 ; Sted- man o. Western Transportation Co. 48 Barb. 97 ; Kinney v. Central R. R. Co. of N. J. 5 Vroom, 513 ; Mann v. Birchard, 40 Vt. 326 ; Grace v. Adams, 100 Mass. 506 ; Squire v. New York Central R. R. Co. 98 Mass. 246 ; Christenson y. American Ex- press Co. 15 Minn. 270; School District v. Boston &c. R. R. Co. 102 Mass. 552; Southern Express Co. v. Crook, 44 Ala. 468. See, as to telegraph companies, Sweatland v. Illinois & Miss. Tel. Co. 27 Iowa, 433 ; Baldwin v. United States Tel. Co. 1 Lansing, 125; Breese v. United States Tel. Co. 45 Barb. 274 ; Birney !.'. N. Y. & Wash. Tel. Co. 18 Md. 341 ; Wolf v. Western Union Tel. Co. 62 Penn. St. 83 ; United States Tel. Co. v. Gildersleeve, 29 Md. 232 ; Bryant v. Amer. Tel. Co. 1 Daly, 575 ; Dryburg v. N. Y. & Wash. Tel. Co. 35 Penn. St. 298 ; Camp. v. Western Union Tel. Co. 1 Met. (Ky.) 164; Wann v. Western Union Tel. Co. 37 Missou. 472 ; True v. International Telegraph Co. (g) The signature by a. railway agent, employed by the consignor to deliver, and by the company to receive the goods, is sufficient ; Aldridge v. Great Western Rail- way Company, 15 C. B. N. S. 582. (h) 17 & 18 Vict. c. 31, s. 7; extended by the 26 & 27 Vict u. 92, to steam vessel^ employed by railway companies, and the traffic carried on thereby. And see M'Manus v. Lancashire & Yorkshire Railway Company (in Cam. Scac), 4 H. & N. 327 ; London & North Western Railway Company v. Dunhan, 18 C. B. 826, 829. See, also, Peek v. North Stafford- shire Railway Company, E., B. & E. 958 ; S. C. (in Dom. Proc), 32 L. J. Q. B. 241. But the 17 & 18 Vict. c. 31, s. 7, does not apply to passengers' luggage ; Stewart v. London & North Western Railway Com- pany, 3 H. & C..135«; nor where the goods are not received by the company as car- riers — e. g. where they are deposited for custody in the cloak room at a railway station. Van Toll o. South Eastern Rail- way Company, 12 C. B. N. S. 75 ; 31 L. J. C. P. 241 . Nor does that section apply to a contract which exempts the company from liability for loss, or detention of, or injury to goods, which may occur on a railway not belonging to or worked by the company. Zunz v. South Eastern Railway Company, L. R. 4 Q. B. 539. 692 SUBJECT-MATTER OF CONTRACTS. And it is for the court to say, upon all the facts, whether the When con- condition or contract in any particular case is just and and reason- reasonable, (i) Thus it has been held, that a condition that the company should not be responsible for the loss, detention, or damage of goods insufficiently or improperly packed, is unjust and unreasonable, (i) So it has been held that a condi- tion that where goods are conveyed at a special mileage rate, the company will not be responsible for any loss or damage, however caused, is unjust and unreasonable ; because such a condition would apply to all risks, of whatever kind, and however arising, which might be encountered in the course of the journey, although occa- sioned by the company's own negligence or misconduct. (&) And to the goods, resulting from his negligence or misconduct. Sager v. Portsmouth, S. P. & E. Railroad Co. 31 Maine, 228. Such stipulation, and any other notice or agreement which reduces the liability of the carrier to that of an ordinary bailee for hire, imposes upon the owner of the goods, in case of claim for damage to, or loss of them, the burden of showing misconduct or negligence in the carrier. Sager v. Portsmouth, S. P. & E. Railroad Co. su- 60 Maine, 9, and cases cited ; Ellis v. Ameri- can Tel. Co. 13 Allen, 234 ; Squire v. W. U. Tel. Co. 98 Mass. 232. In New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 382, Nelson J. said : " The owner, by entering into the contract, vir- tually agrees, that, in respect to the partic- ular transaction, the carrier is not to be regarded as in the exercise of his public employment, but as a private person who incurs no responsibility beyond that of an ordinary bailee for hire, and answerable pra ; Angell Carriers, § 276; Story Bailm. only for misconduct or negligence." In Camden &c. Railroad Co. v. Baldauf, 16 Penn. St. 67, Rogers J. said : " Carriers cannot, even by a special agreement with the owner, discharge themselves from the ordinary care incumbent on a bailee for hire." See Pennsylvania Railroad Co. v. McClosky, 23 Penn. St. 526. A limitation of responsibility provided for in a bill of lading given by one carrier, does not inure to the benefit of a connecting carrier, where the contract i» merely for delivery to the latter for further transportation. And this is so where a contract exists be- tween two carriers for the reciprocal trans- portation of freights and the division of receipts, and the shipper has paid through charges. iEtna Ins. Co. v. Wheeler, 5 Lansing, 480. Where the owner stipu- lated that he would take upon himself the risk of " all damage that may happen," to the goods in the course of transportation, such stipulation was held not to exonerate the carrier from liability for damage done 373. See Hunt v. The Cleveland, 6 McLean, 76. This is contrary to the gen- eral rule in cases of carriers, where there is no notice ; for prima facie, then the bur- den is on the common carrier to exempt himself from liability. Story Bailments, §§ 529, 573.] (i) Simons v. Great Western Railway Company, 18 C. B. 805 ; Garton v. Bristol & Exeter Railway Company, 1 B. & S. 112. (k) M'Manus v. Lancashire & York- shire Railway Company (in Cam. Scac), 4 H. & N. 327 ; and see Gregory v. West Midland Railway Company, 2 H. & C. 944; Allday v. Great Western Railway Company, 5 B. & S. 903. Before the 17 & 18 Vict. c. 31, such a condition was valid and binding. See Walker v. York & North Midland Railway Company, 2 E. & B. 750 ; Austin v. Manchester &c. Rail- way Company, 10 C. B. '454, 475, 476 ; and see S. C. 16 Q. B. 600 ; Carr v. Lan- cashire &c. Railway Company, 7 Exch. CARRIERS. 693 so a contract respecting the conveyance of cattle ; that " the owner undertakes all risks of loading, unloading, and carriage ; " although accompanied by an undertaking to " grant free passes to persons having the care of live stock," was held to be unreasonable. (I) But a condition " that no claim for damage would be allowed unless made within three, days after the delivery of the goods ; nor for loss, unless made within three days of the time that they should be delivered," has been held to be reasonable, (m) So a condition, providing that the liability of the company in respect of goods destined for places beyond the limits of their railway, should " cease when such goods should have been delivered over to another car- rier, in the usual course, for further conveyance," has been held to be reasonable, (w) And a condition, that " the company would not be responsible for any damage to meat, on the ground of loss of market, provided the same were delivered within a reasonable time after the arrival thereof at the station, from whence the delivery was to be made ; " has also been held to be reasonable, (o) So where a railway company gave notice, that they would not carry fish except on the following conditions, viz. : " that they should not be responsible, under any circumstances, for loss of market, or for other loss or injury arising from delay or detention of trains, expos- ure to weather, stowage, or from any cause whatever, other than gross neglect or fraud; " and " that fish, under special conditions, would be conveyed by certain named trains, subject in all cases to the immediate convenience and arrangements of the company," — these conditions were held to be just and reasonable, (p) And 707 ; 21 L. J. Exch. 261 ; Great Northern (n) Aldridge v. Great Western Railway Railway Company v. Morville, lb. Q. B. Company, 15 C. B. N. S. 582. [But see 319 ; Chippendale v. Lancashire &c. Rail- T. P. & W. R. R. Co. v. Merriman, 52 way Company, lb. Q. B. 22. 111. 123 ; Wilson v. Chesapeake & Ohio R. (I) Rooth v. North Eastern Railway R. Co. 21 Gratt. 654.] Company, L. Rep. 2 Ex. 173. (o) Lord v. Midland Railway Company, (m) Simons v. Great Western Railway L. Rep. 2 C. P. 339. Company, 18 C.B. 805. [But see Southern (p) Bealu. South Devon Railway Com- Express Co. v. Caperton, 44 Ala. 101 ; pany, 5 H. & N. 875 ; S. C. (in Cam. Southern Express Co. v. Crook, 44 Ala. Scac.), 3 H. & C. 337. See, further, as to 468. A rule of a telegraph company, that what conditions are held to be just and the company would not be held respon- reasonable under this statute, Harrison v. sible for damages unless the claim was London, Brighton & South Coast Rail- presented within sixty days after the way Company (in Cam. Scac. ), 2 B. & S. message was sent, was held reasonable and 122, 152 ; Pardington v. South Wales Rail- binding on the sender who had notice of way Company, 1 H. & N. 393 ; Lewis v. it, in Wolf v. Western Union Tel. Co. 62 Great Western Railway Company, 5 lb. Penn. St. 83.] 867.] 694 SUBJECT-MATTEK OF CONTRACTS. where a horse was accepted by a railway company under a special contract, which expressed that the company " would not be answer- able for damage done to any horses conveyed by their railway ; " it was held, that an injury which happened to the horse, while remain- ing at the station to which it was directed to be sent, till some one should make an application for it, must be considered part of the risk of removing it from one place to another ; and that it was covered by the terms of the contract, (g) A condition that the carrier shall not be liable " for leakage or How far ex- breakage, " only exempts him from liabilitv for leakage liability, pro- or breakage which is the result of accident, and not where"™ 1 where it is caused by his negligence or want of care, (r) &c, arises g wnere a railway company received the plaintiff's from his own J l J 1 negligence, goods, under a contract by which the baggage of certain troops, — of which baggage the plaintiff's goods formed part, — was to remain in charge of a guard provided by the troops, " the company accepting no responsibility : " it was held that this stipu- lation did not exempt the company from liability for a loss arising wholly from their own negligence, (s) And it seems that, if the goods were received on the condition, that the carrier would not be responsible for the loss of, or damage done to them, unless the same were insured according to their value, and paid for at the time of their delivery to be carried ; it would not be necessary, in order to render him liable, to prove a total abandonment by the carrier of that character, or any act of wilful misconduct. The effect of such a condition might be, that the carrier would not be responsible for •all events against which, by common law, he is an insurer. But still he would be held to have undertaken to carry from one place to another, and for some reward in respect of the carriage ; and he would therefore be bound to use ordinary care in the custody of the goods, and in their conveyance to, and delivery at their place of destination, as well as in providing proper vehicles for their car- riage. (£) It appears, however, that, in such a case, the company would (q) Wise v. Great "Western Railway (() Per Cur. Wyld v. Pickford, 8 M. & Company, 1 H. & N. 63. W. 443, 461 ; [New Jersey Steam Nav. Co. (r) Phillips v. Clark, 2 C. B. N. S. 156; v. Merchants' Bank, 6 How. (U. S.) 383; and see Czech v. General Steam Naviga- Camden &c. P. R. Co. v. Burke, 13 Wend, tion Company, L. Rep. 3 C. P. 14. 611, 627, 628 ; Story Bailm. §§ 557, 571.] (s) Martin v. Great Indian &c. Rail- way Company, L. Rep. 3 Ex. 9. CARRIERS. 695 not be liable for a loss occasioned by the felony of their servants, unless such felony arose through the gross negligence of the com- pany themselves, (u) But a railway or canal company cannot now limit their liability as carriers, by any general notice, condition, or declara- Railway or tion, made or given contrary thereto, (w 1 ) except such p^* cannot as are given under the 11 Geo. 4 & 1 Will. 4, c. friability 68 ; (t>) or, — where the company, by through book- by notice. ing, contracts to carry animals, luggage, or goods from place to place, partly by railway and partly by sea, or partly by canal and partly by sea, — by a notice under the 31 & 32 Vict. c. 119, s. 14. O) It would seem, therefore, that a by-law made by a railway com- pany under the provisions of their special act, and which Effecto f Dy . purports to limit their liability for loss in certain cases, Iaw - will not bind the customer, even if there be evidence that he had notice thereof. («/) But it has been doubted whether a railway company are liable as common carriers, in respect of passenger's luggage. Q U(Bre s And where a railway company issued excursion tickets, whether raii- ... way com- " subject to the conditions in the company's time and pany liable , .,, „ , , . .,, . i , . t . as common excursion bilJs ; and the bills contained this condition : carriers, in viz. " luggage under 60 lbs. free, at passenger's own pl^enger's *•"* • " it was held, that the purchaser of an excursion lu ss a s e - risk . (u) Per Maule J. Butt v. Great West- ern Railway Company, 11 C. B. 140, 153. (m 1 ) [Perry v. Thompson, 98 Mass. 249 ; Judson e. Western R. R. Corp. 6 Allen, 486 ; Moses v. Boston & Maine Railroad, 24 N. H. 71 ; Farmers' & Mechanics' Bank v. Champlain Transportation Co. 23 Vt. 186, 205 ; Kimball v. Rutland & Burling- ton Railroad, 26 Vt. 247 ; Fillebrown v. Grand Trunk R. R. Co. 55 Maine, 462.] (v) 17 & 18 Vict. c. 31, s. 7 ; Simons v. Great Western Railway Company, 18 C. B. 805, 829. (x) Which enacts, that a condition ex- empting the company from liability for loss or damage which may arise during the carriage of such animals, &c, by sea from the act of God, the king's enemies, Are, accidents from machinery, boilers and steam, and all and every other dangers and accidents of the seas, rivers, and navigation, shall, if published in a con- spicuous manner in the office where such through-booking is effected, and printed in a legible manner on the receipt or freight note which the company gives for such animals, &c, be valid as part of the contract between the consignor and the company in the same manner as if the company had signed and delivered to the consignor a bill of lading containing such condition. (y) See Great Western Railway Com- pany v. Goodman, 12 C. B. 313 ; 21 L. J. C. P. 197. Clearly, it would not if he had not sufficient notice ; lb. ; or if it con- travened any of the provisions of the com- pany's act. Williams v. Great Western Railway Company, 10 Exch. 15. 696 SUBJECT-MATTER OF CONTRACTS. ticket, could not recover for the loss of personal luggage which was within the prescribed weight, although he was not, in fact, aware of the above condition. (2) But in the case of an ordinary common carrier, although the mere Proof of spe- fact of the carrier giving a public notice, is not sufficient inordinary *° constitute a special contract between him and the cus- cases. tomer ; (a) yet, if the jury find that a ticket containing such notice was, in fact, delivered to the consignor or his agent, that will be sufficient to limit the responsibility of the carrier ; (5) without their also finding that such ticket was read over and ex- plained to the party to whom it was delivered (c) It is said to be now perfectly well understood, that if a parcel Concealment be delivered to a carrier to be carried, it is his duty to fraud, will as k such questions about it as may be necessary ; and the carrier that, if he ask no questions, and there be no fraud to vi? h f 1Sha " Si ye tne case a false complexion, he is bound to carry misfeasance, the parcel as it is. (d) (z) Stewart v. London & North West- ern Railway Company, 3 H. & C. 135. (a) 11 Geo. 4 & 1 "Will. 4, c. 68, s. 4; [Kimball „. Rutland R. R. 26 Vt. 247; ante, 695, note (u 1 ) ; Southern Express Co. v. Crook, 44 Ala. 468 ; Blossom v. Dodd, 43 N. Y. 364.] (6) See Great Northern Railway Com- pany v. Morville, 21 L. J. Q. B. 319. (c) Palmer v. Grand Junction Railway Company, 4 M. & W. 749 ; [Grace u. Adams, 100 Mass. 505. In a case in Penn- sylvania, where the notice was in the Eng- lish language, and the passenger was a Ger- man, who did not understand the English language, it was held to be incumbent on the carrier to prove that the passenger had knowledge of its contents ; and that, if tickets without anything more, are evi- dence of a special contract, yet they must be printed in a language which the passen- ger understands, or their terms must be explained to him. Camden & Amboy R. R. Co. ». Baldauf. 16 Penn. St. 67. In another case it was held, that a notice that a railroad corporation would not be liable for the baggage of passengers beyond a certain amount, unless, &c, printed on the back of the passage ticket, and detached from what ordinarily contains all that is material to the passenger to know, does not raise a legal presumption that the party, at the time of receiving the ticket and before the train leaves the station, had knowledge of the limitations or conditions which the carrier had attached to the transportation of the baggage of passen- gers ; it is still a question for the jury whether the passenger knew of the notice before commencing the journey. Brown v. Eastern R. R. Co. 1 1 Gush. 97 ; Malone v. Boston & Worcester R. R. Corp. 12 Gray, 388 ; Grace v. Adams, 100 Mass. 305 ; Rice v. Dwight Manuf. Co. 2 Cush. 80, 87 ; Belger v. Dinsmore, 51 Barb. 69 ; "Wilson u. Chesapeake & Ohio R. R. Co. 21 Grattan, 654 ; Prentice v. Decker, 49 Barb. 21 ; Limburger v. Westcott, 49 Barb. 283 ; Boorman v. American Express Co. 21 Wise. 152 ; Strohn v. Detroit &c. R. R. Co. 21 Wis. 554 ; Southern Express Co. v. Newby, 36 Geo. 635 ; McMillan v. Michigan Southern R. R. Co. 16 Mich. 79 ; Kinney u. Central R. R. Co. of N. J. 5 Vroom, 513 ; Pennsylvania R. R. Co. v. Henderson, 51 Penn. St. 315.] (d) Per Parke B. Walker v. Jackson, 10 M. & W. 161, 168 ; [per Fletcher J. in CARRIERS. 697 And it is, at all events, clear, that if the carrier be guilty of misfeasance, mere concealment on the part of the customer, with- out fraud, will not absolve the carrier from liability for the loss. Thus, where a parcel of great value was delivered to a carrier, with directions to send it by a particular conveyance ; and he sent it by a different conveyance, and it was lost ; it was held that he was responsible, notwithstanding he had given notice that he would not be answerable for any article exceeding a certain value, unless insured ; and the customer had not given notice that the parcel in question contained property exceeding that value, (e) But if, in such circumstances, the carrier were merely guilty of negligence, it would seem that concealment alone would be sufficient to discharge him, that is, in cases not within the carriers' act. (/) And if any fraud or deceit be practised on the carrier ; as if the real value of the goods be misrepresented to, or fraudu- Aliterii there lently concealed from him, whereby he is induced to befraud - regard them as of trifling value, he will not be liable in case they be lost or stolen. (#) Jordan v. Fall River R. R. Co. 5 Cush. 74 ; Malpica v. M'Kown, 1 Miller (Lou.), 248; Phillips v. Earle, 8 Pick. 182; Wal- worth Ch. in Sewall v. Allen, 6 Wend. 349 ; Hollister v. Nowlen, 19 Wend. 234 ; Cole v. Goodwin, 19 Wend. 251 ; Story Bailm. § 567 ; 2 Kent, 603, 604 ; Nelson J. in Orange Co. Bank v. Brown, 9 Wend. 115 ; Wilsonsw. Hamilton, 4 Ohio (N. S.), 722. And so, where the advertisement of a carrier stated that passengers were " pro- hibited from taking anything as baggage but their wearing apparel, which will be at the risk of the owner," and the trunk of a passenger contained specie, and the extra weight of his baggage was paid for, and the agents of the carrier took charge f it, it was held, that it was not incum- bent on the passenger to inform the carrier of its contents, unless he was inquired of; that it was immaterial whether the trunk was to be considered as baggage or freight ; and that the carrier was liable for the loss (/) Batson v. Donovan, 4 B. & Aid. 21 ; and see per Bayley and Holroyd JJ. Sleat v. Elagg, supra. (g) See Walker v. Jackson, 10 M. & W. 161 ; Brooke o. Pickwick, 4 Bing. 218; Kenrig u. Eggleston, Aleyn, 93; Titchbourne v. White, 1 Str. 145; Gib- bon v. Paynton, 4 Burr. 2298 ; Mayhew v. Eames, 3 B. & C. 601 ; Bradley v. Water- house, 3 C. & P. 318 ; S. C, M. & M. 154. [See Angel! Carriers, § 258 et seg. ; 2 Kent, 603, 604; Story Bailm. §565; Relf v. Rapp, 3 Watts & S. 21 ; per Nel- son J. in Orange Co. Bank v. Brown, 9 Wend. 116; per Manle J. in Crouch v. London & N. W. Railway Co. 14 C. B. 255 ; Phillips v. Earle, 8 Pick. 182. The responsibility is the same, whether the carrier is told that a package of bank notes contains money, or something as valuable as money. Dwight v. Brewster, 1 Pick. 50. Where a carrier received a box containing a glass bottle of oil of of it through the negligence or fraud of cloves, and the box was marked, " Glass his agents. Camden &c. Railroad Co. o. with care, this side up ; " held, he was Baldauf, 16 Penn. St. 67. See Doyle v. chargeable for a loss of the oil, occasioned Kizer, 6 Ind. 242.J by his deviating from this direction. Hast- (e) Sleat v. Fagg, 5 B. & Aid. 342. ings v. Pepper, 11 Pick. 41. If merchan- 698 SUBJECT-MATTER OP CONTRACTS. If a passenger by railway carry merchandise packed up with his personal luggage, and the company have no notice of merchandise that fact,- they are not responsible for the value of such personal lug- merchandise if it be lost during the journey : (g l ~) be- cause, primd facie, their contract is only to carry the passenger and his ordinary luggage, (Ji) — that is, such things as dise, in good order, is intrusted to a carrier, and arrives at its destination in a damaged state, where he holds it subject to freight, he is liable for the value. And if he pretends that fraud or concealment has been practised, the onus of proof lies upon him. Hart v. Jones, Stuart (Lower Canada), 72.] (g 1 ) [Warner v. Western Transportation Co. 5 Bob. (N. Y.) 490.] (h) Great Northern Eailway Company v. Shepherd, 8 Exch. 30 ; Cahill v. London & North Western Eailway Company, 10 C. B. N. S. 154; S. C. (in Cam. Scac.) 13 E>. 818. [See Orange County Bank v. Brown, 9 Wend. 85 ; Hawkins u. Hoff- man, 6 Hill (N. Y.), 586 ; Pardee v. Drew, 25 Wend. 85. The implied undertaking of the carrier does not extend beyond ordinary baggage, or such baggage as a traveller ordinarily carries with him for his personal convenience. Hawkins v. Hoff- man, 6 Hill (N. Y.), 586. It is never admitted to include merchandise carried as such. Pardee v. Drew, 25 Wend. 459 ; Hawkins v. Hoffman, 6 Hill (N. Y.), 586 ; Collins v. Boston & Maine E. E. 10 Cush. 506 ; Stimson v. Connecticut Ei.er E. E. Co. 98 Mass. 83. Nor does it include large sums of monet/, or more than may be reasonably taken by a passenger for his travelling expenses. Orange County Bank v. Brown, 9 Wend. 85 ; Hawkins v. Hoff- man, 6 Hill (N. Y.), 586; Whitmore v. Steamboat Caroline, 20 Miss. (5 Bennett) 513. Money intended for trade or business, or investment, or for transportation, can- not be regarded as baggage. Per Fletcher J. in Jordan v. Fall Eiver E. E. Co. 5 Cush. 74 ; Dunlap v. International Steam- boat Co. 98 Mass. 371. But the traveller may take in his trunk, as part of his baggage, money, which is bona fide in- tended for travelling expenses and personal use; and such reasonable amount as a prudent person would deem necessary and proper for such purpose. Per Fletcher J. in Jordan v. Fall Eiver E. E. Co. 5 Cush. 74 ; Weed u. Saratoga & Schenectady E. E. Co. 19 Wend. 534 ; Bomar v. Max- well, 9 Humph. 621 ; Jackson v. Stone, 11 Humph. 419. It is quite impossible for the court to restrict, within certain and prescribed limits, the quantity or kind or value of articles, which may be embraced in the term baggage, as used in connection with travelling in public conveyances. It may be said, in general terms, that bag- gage includes such articles as are of neces- sity or convenience for personal use, and such as it is nsual for persons travelling to take with them. Per Fletcher J. in Jordan v. Fall Eiver E. E. Co. 5 Cush. 72 ; Ma- crow v. Great Western Eailway Co. L. K. 6 Q. B. 612 ; Dexter v. Syracuse &c. E. E. Co. 42 N. Y. 326. Articles of amusement, such as a gun or fishing gear, have been held to fall within the term baggage. Angell Carriers, § 114; Orange County Bank u. Brown, 9 Wend. 85. So, a watch, carried in a trunk. Jones v. Voor- hees, 10 Ohio, 145, 150 ; American Con- tract Co.tf. Cross, 8 Bush (Ky.),472. But see Boman v. Maxwell, 9 Humph. 621. So a carrier has been held liable for a lady's trunk containing apparel and jewelry. Brooke v. Pickwick, 4 Bing. 418 ; M'Gill v. Eowand, 3 Barr, 451. An opera glass, Toledo &c. E. E. Co. v. Hammond, 33 Ind. 379. So, it was said by Bronson J. in Hawkins ». Hoffman, 6 Hill, 586 : " If one has books for his instruction or amuse- ment by the way, they would undoubtedly fall within the term baggage, because they are usually carried as such." And in Woods v. Devin, 13 111. 746, a common CARRIERS. 699 Carrier can- not always insist on con- tents of pack- age being disclosed. may fairly be carried by the passenger for his personal use or con- venience, (i) But a carrier has not, in all cases, a right to be in- formed of the contents of packages brought to him to be carried ; nor can he, in all cases, refuse to carry them, if such information be withheld. (&) If, however, a person deliver to a carrier goods of a dangerous character, for the purpose of being carried, such per- carrier ought son is bound to give the carrier notice of the danger- formedif ous character of the goods ; and, if he do not do so, he dangerous & ' ' ' goods are de- is liable to the carrier for the consequences of such omis- livered. sion. (7) carrier of passengers was held liable for the loss of a pocket pistol and a pair of duelling pistols, contained in a carpet bag of a passenger, which was stolen out of the possession of the carrier. A carpenter took passage in a stage-coach, and his trunk, containing some clothing and tools, was lost, and the stage owners were held liable for all the contents of the trunk. Porter v. Hildebrand, 14 Penn. St. 129. See Doyle v. Kiser, 6 Ind. 242. Surgical instruments may be carried as baggage by a surgeon travelling with troops. Hannibal K. R. Co. v. Swift, 12 Wallace, 262. In an action against a common carrier to recover the value of a lost trunk and its contents, the plaintiff has been held a competent witness to prove the amount and character of the contents ; the fact of the delivery to the carrier, and the loss having been established by other proof. Mad River & Lake Erie R. R. Co. v. Fulton, 20 Ohio, 318; Johnson v. Stone, 11 Humph. 419; Clark v. Spence, 10 Watts, 335; Spurr v. Wellman, 11 Mis- sou. 230 ; Sneider v. Geiss, 1 Yeates, 34 ; McGill v. Rowand, 3 Barr, 342, 451 ; 1 Greenl. Ev. §§ 348, 349 ; Oppenheimer u. Edney, 9 Humph. 385 ; Herman v. Drinkwater, 1 Greenl. 27 ; Angell Car- riers, § 476 et seq. For the same reasons the wife of the owner is admissible to prove the same facts. Mad River & Lake Erie R. R. Co. v. Fulton, 20 Ohio, 318 ; McGill v. Rowanu, 3 Barr, 451. But this rule will not extend farther than to the proof of such articles as are commonly carried in a travelling trunk. Mad River & Lake Erie R. R. Co. v. Fulton, 20 Ohio, 318. In Pudor v. Boston & Maine R. R. 26 Maine, 458, 460, Shepley J. said, that the admission of the plaintiffs own evi- dence should be limited to the proof of clothing and personal ornaments ; and it was rejected, in this case, where the dec- laration alleged the loss of a box con- taining medical books, medicines, surgical instruments, and chemical apparatus ; al- ii) Per Erie C. J. Phelps v. London & North Western Railway Company, 19 C. B. N. S. 321, 330. But see Hudston v. Midland Railway Company, L. Rep. 4 Q. B. 366, 370, where Lush J. suggested that the term " ordinary luggage," would be more properly denned to be, that " class of articles which are ordinarily or usually carried by travellers as their luggage," — without reference to the fact of their being for the traveller's personal use or convenience. [See Baltimore Steam Packet Co. v. Smith, 23 Md. 402 ; Mississippi Central R. R. Co. v. Kennedy, 41 Miss. 671.] (h) Crouch v. London & North Western Railway Company, 14 C. B. 255. See Phillips u. Earle, 8 Pick. 182; Fisk v. Chapman, 2 Kelly, 349. (/) Farrant v. Barnes, 11 C. B. N. S. 553 ; 31 L. J. C. P. 137 ; Brass v. Mait- land, 6 E. & B. 470. As to goods specially dangerous, see 29 & 30 Vict. c. 69 ; s. 6, ante, 685. 700 SUBJECT-MATTER OF CONTEACTS. Again : where the damage complained of happens from the Goods dam- owner's neglect, and not from the neglect of the carrier byowner'f ™ tne ordinary course of his duty, he is not liable, (to) neglect; jj or j s ne responsible for the loss of a parcel which, by agreement between the owner and the carrier's servant, the latter was to carry for his own private gain, (n) And where the plain- tiff received a parcel from G., to book for London at the office of the defendants, who were common carriers ; and, instead of obey- ing his instructions, he put the parcel into his bag, intending to take it to London by the coach as part of his own luggage ; it was held that he could not recover against them for the loss of such parcel, (o) It has however been held, that if A. send goods by B., who says, " I will warrant they shall go safe ; " B. is liable, because of his warranty, for any damage sustained by the goods ; notwith- standing A. sent his own servant in B.'s cart to look after them.(p) And it is said to have been decided, that if a man travel in a stage- coach, and take his portmanteau with him, though he has his eye , upon the portmanteau, yet the carrier will be liable if the portman- teau be lost. ( c - 68- for hire, against the loss of or injury to parcels or packages deliv- ered to them for conveyance or custody, the value and contents of which shall not be declared to them by the owners thereof; " and, after reciting that, " by reason of the frequent practice of bankers and others of sending by the public mails, stage-coaches, wagons, vans, and other public conveyances by land for hire, parcels and packages containing money, bills, notes, jewelry, and other arti- cles of great value in small compass, much valuable property is ren- dered liable to depredation, and the responsibility of mail contract- ors, stage-coach proprietors, and common carriers for hire is greatly increased ; and that, through the frequent omission by persons sending such parcels and packages, to notify the value and nature of the contents thereof, so as to enable such mail contractors, stage- coach proprietors, and other common carriers, by due diligence, to protect themselves against losses arising from their legal responsi- bility, and the difficulty of fixing parties with knowledge of notices published by such mail contractors, stage-coach proprietors, and (y) Clark v. Gray, 4 Esp. 177, 178. 179; Camden &c. R. R. Co. v. Baldauf , [See Hollister v. Nowlen, 19 Wend. 234; 16 Penn. St. R. 67; Barney v. Prentiss, Bean v. Green, 3 Fairf. 422 ; Camden & 4 Harr. & J. 317.] Amboy R. R. Co. a. Baldauf, 16 Penn. St. (2) Rowley v. Home, 3 Bing. 2. 67 ; Brown v. Eastern R. R. Co. 6 Law (a) Kerr v. "Willan, 2 Stark. 53 ; Davis R. N. S. 39, 11 Cush. 97. So, the no- v. Willan, lb. 279; [Camden & Amboy tice itself must be clear, explicit, and un- R. R. Co. v. Baldauf, 16 Penn. St. 67.] ambiguous. Beckman v. Shouse, 5 Rawle, 716 SUBJECT-MATTER OF CONTRACTS. other common carriers, with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses ; " it is thereby enacted, in sect. 1, " that no mail contractor, stage-coach propri- etor, or other common carrier by land for hire, shall be liable for the loss of or injury (6) to any article or property of the descrip- tion following : that is to say, gold or silver coin of this realm, or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewelry, watches, clocks, or time-pieces of any description, trinkets, (e) bills, notes of the governor and company of the banks of England, Scotland, and Ireland, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign stamps, maps, writings, (d) title-deeds, paintings, engravings, pic- tures, (e) gold or silver plate or plated articles, glass, (/) china, silks, ( and foresight, in everything that concerns the safety wlf/charge oi? suca passengers ; (J) and he is liable if, from want of him - attention to these matters, a passenger be injured. And accordingly it is held, that he impliedly warrants that the carriages used by him for the conveyance of passengers, have been con- structed with due care, and are reasonably fit for the purpose, (rn) But where this warranty has been complied with, the carrier is not liable if an accident happen from a defect in such carriage, where the defect was not visible, and could not be discovered upon ordi- nary examination, and the carriage was in fact examined in the usual way just before the commencement of the journey, (n) (& 4 ) [Angell Carriers, § 535 ; Bremner Gay, 11 Pick. 106; Story Bailm. §§ 592, v. Williams, 1 C. & P. 414 ; Ingalls v. 593 ; Angell Carriers, § 534 ; Stockton v. Bills, 9 Met. 1 ; Hanley v. Harlem R. R. Frey, 4 Gill, 406 ; Derwort u. Loomer, Co. 1 Edm. Sel. Cas. 359.] 21 Conn. 245 ; Hart v. Allen, 2 Watts, (k 6 ) [Story Bailm. § 594; Long v. 115.] Home, 1 C. & P. 612 ; Israel u. Clark, 4 (I) See Redhead v. Midland Railway Esp. R. 259.] Co. (in Cam. Scac.) L. R. 4 Q. B. 379, (£'•) [Angell Carriers, § 543 ; Stokes 393. o. Saltonstall, 13 Peters, 181 ; McKinney (m) See Francis v. Cockrell, L. R. 5 ' v. Neil, 1 McLean, 540; Peck v. Neil, 3 Q. B. 184; S. C. (in Cam. Scac.) lb. McLean, 22; Mayor v. Humphries, 1 C. 501. & P. 251 ; Carpuey. The L. & B. Railway (n) Redhead v . Midland Railway Co. Co. 5 Q. B. 747, 754.] L. R. 2 Q. B. 412 ; S. C. (in Cam. Scac.) (k 1 ) [Angell Carriers, § 531 ; Weed v. L. R. 4 Q. B. 379. And see Christie v. Saratoga & Schenec. R. R. Co. 19 Wend. Griggs, 2 Camp. 79 ; Bremner v. Wil- 534 ; Railroad Co. u. Aspell, 23 Penn. St. liams, 1 C. & P. 414; Sharp o. Gray, 9 147.] Bing. 457 ; and the cases cited note (k), (F) [Story Bailm. § 597.] supra; [Frink a. Potter, 17 III 406. So, (k 9 ) [Camden & Amboy R. R. Co. u. in the case of a railroad car, where an Burke, 13 Wend. 611 ; Cole v. Goodwin, injury results from a latent defect in the 19 Wend. 251 ; Hollister v. Nowlen, 19 axle. Hegeman a. Western R. R. Corp. Wend. 234 ; McKinney v. Neil, 1 McLean, 3 Kernan, 9. In this case it was held, 540 ; Ingalls v. Bills, 9 Met. 1 ; Ware v. that where a passenger, in a railroad CARRIERS. 731 So, if a railway company have running powers over an existing line, thej' must take care to have their carriages so constructed, as to be reasonably adapted for travelling upon that line. (0) So, a railway company are bound to use reasonable care to maintain their railway in a proper condition for the conveyance of passengers. And if, by virtue of running powers, or by arrangement with an- other company, they convey passengers over the whole or part of another line, the same obligation attaches ; and they undertake, on their part, that such other company shall keep their line in proper condition, (p) So, if a stage-coach be passing through a place known by the coachman to be dangerous, as under a low gateway, he is bound to warn the passengers of the danger, in order that they may avoid it. (?) So, if it be practicable for the coachman to adopt a course which is safe, and he adopts one which is hazardous, the owner is liable if any injury ensue to the passengers, (r) And if a passenger, in consequence- of the driver's neglect or unskilfulness, be placed in such a situation that, as a prudent precaution for the purpose of self-preservation, he is induced to leap from the carriage, the car- rier is liable for any hurt he may sustain, (s) But if the result of car, was injured by the breaking of one of axle-trees, in which there was a very the axles in consequence of a latent defect, small flaw, entirely surrounded by sound which could not be discovered by the most iron one fourth of an inch thick, and vigilant external examination, the com- which could not be discovered by the pany were responsible to him for damages, most careful examination externally ; it although tbey purchased the car from was held, that the proprietors of the coach extensive and skilful car-makers, and were not responsible for the injury thus the axle was procured from a manufac- received.- See, also, Angell Carriers, §§ turer of skill and reputation, if the defect 535, 536 ; Grote v. C. & H. R. R. Co. 2 could have been discovered in the process Exch. 251.] of manufacturing the axle or car by the (0) Per Erie C. J. Graham v. North application of any test known to men Eastern R. R. Co. 18 C. B. N. S. 229„ skilled in such business. Frink v. Potter, 238. 17 111. 406. It is a question for the jury (p) Great Western Railway Co. v. to decide, whether, upon the evidence, a Blake (in Cam. Scac), 7 H. & N. 987 ; railroad company is guilty of negligence Thomas u. Rhymney Railway Co. L. R. in not ascertaining the utility of and 5 Q. B. 226 ; S. C. (in Cam. Scac.) 6 lb. adopting an improvement to protect pas- 266 ; and see Buxton v. North Eastern sengers from injuries by accidents to Railway Co. L. R. 3 Q. B. 549 ; John v. which the cars are liable. Hegeman v. Bacon, L. R. 5 C. P. 437. The Western R. R- Corp. supra. But in (g) Dudley v. Smith, 1 Camp. 167. Ingalls v. Bills, 9 Met. 1, where a passen- (r) Per Lord Ellenborough, Mayhew v. ger in a coach received an injury solely by Boyce, 1 Stark. 423, 425. reason of the breaking of one of the iron (s) Jones v. Boyce, 1 Stark. 493. [The 732 SUBJECT-MATTER OF CONTRACTS. the carrier's negligence be, not to expose the passenger to any peril, but merely to subject him to some inconvenience ; and, in order to obviate this, he does an act from which injury ensues, the carrier is not responsible, (t) As to what is evidence of negligence on the part of the carrier, Evidenced 't has been held, that where a passenger is injured whilst negligence, travelling on a railway, he will establish a primd facie case of negligence against the company, by showing that, when the accident occurred, the train and railway were exclusively under their management, (u) So, where a train belonging to the defend- ants was, whilst stationary on their railway, run into by another train ; and the latter was the train in fault ; but it appeared that several companies had running powers over that part of the de- fendants' line where the accident occurred ; it was held that, in the absence of evidence to the contrary, it must be presumed that the train in fault belonged to, or was under the control of the defend- ants, (V) So, the breaking down or upsetting of a coach, appears to have been regarded as primd facie evidence of carelessness on the part of the driver. (w~) And so, where too many passengers were received in and upon a coach, contrary to the statute, (x~) and same doctrine was maintained in Ingalls inevitable accident, or that it was caused v. Bills, 9 Met. 1 ; Frink v. Potter, 17 III. by something against which no human 406. See, also, Stokes v. Saltonstall, 13 foresight and prudence could provide. It Peters, 181 ; Eldridge v. Long Island E. was also held, that if a car is thrown off the R. Co. 1 Sandf. 87.] track by passing over a cow unlawfully (() Adams v. Lancashire & Yorkshire on the road, and the passenger is thereby Railway Co. L. R. 4 C. P. 739. injured, this is not, in itself, sufficient to («) Carpue v. London & Brighton repel the presumption of negligence. The Railway Co. 5 Q. B. 747 ; Skinner v. company are bound to make provision London, Brighton & South Coast Railway against such accidents. See Laing v. Co. 5 Exch. 787 ; and see Bird v. Great Colder, 8 Barr, 479 ; Railroad v. Norton, Northern Railway Co. 28 L. J. Exch. 3; 24 Penn. St. 469 ; Goldey v. Penn. R. R. but see per Willes J. Daniel u. Metropoli- Co. 30 Penn. St. 242 ; Galena & Chicago tan Railway Co. L. R. 3 C. P. 216,222. Union R. R. Co. u. Yarwood, .17 111. [In Sullivan u. The Phil. & Reading R. 509.] R. Co. 30 Penn. St. 234, it was held, that (v) Ayles v. South Eastern Railway where a passenger is injured, while travel- Co. L. R. 3 Ex. 146. ling on a railroad, without any fault of his (w) Christie v. Griggs, 2 Camp. 79; own, the law raises primd facie a pre- [Stockton v. Frey, 4 Gill, 406 ; McKinney sumption of negligence against the com- v. Neil, 2 McLean, 540 ; Stokes v. Salton- pany, and throws on them the onus of stall, 13 Peters, 181; Ware v. Gay, 11 showing it did not exist. This may be Pick. 106; Farish u. Rcigle, 11 Gratt. shown and the legal presumption repelled, 697.] by proving that the injury resulted from (x) 9 Geo. 4, c. 49. CARRIERS. 733 an accident occurred, it was held that the presumption was, that the overloading of the coach occasioned such accident. («/) But where works were being carried on over a line of railway, by contractors who were entirely independent of the railway com- pany ; and such works were not being executed for the company, nor by persons in their employment, or under their control ; it was held that there was no obligation on the company, to provide against possible dangers which might arise to passengers on their line, from the execution of such works, (z) Nor will the carrier be liable, if he can show that the immediate and proximate cause of the accident was the negligence ,„, x . , . . When carrier or unskilfulness of the plaintiff himself, (a) But still, excused by although there may have been negligence on the part of own negli- the plaintiff', yet, if his negligence did not in any degree S ence > contribute to the immediate cause of the accident, but merely oc- casioned some part of the injury sustained by him, the carrier will be liable. (5) And so, unless the plaintiff might, by the exercise of ordinary care, have avoided the consequence of the defendant's negligence, he will be entitled to recover, (c) And these rules apply, not merely to cases in which the plaintiff himself has, by his own negligence, brought about the in- ortna t £ a jury of which he complains ; but it has been held further, thlrd P" 1 '^ that a person who takes his place as a passenger in the convey- ance of one who engages to carry him securely, is so far identi- fied with the owner of such conveyance, that the negligence of the latter is to be considered as the negligence of the passenger him- self. And on this principle it has been decided, that a passenger in a public conveyance, who is injured by the negligent manage- ment of another conveyance, cannot maintain an action against the owner of the latter, if the party who had the management and (y) See Israel v. Clark, 4 Esp. 259. Clark v. Eighth Avenue E. E. Co. 36 (s) Daniel v. Metropolitan Eailway N. Y. 135.] Co. (in Dom. Proc.) L. E. 5 Ap. Ca. 45. (b) Greenland v. Chaplin, 5 Exch. 243, (a) Lygo v. Newbold, 9 Exch. 302; 248. Martin v. Great Northern Eailway Co. 16 (c) Per Parke B. Bridge v. Grand Junc- C.B. 179; and see Sinerw. Great Western tion Eailway Co. 3 M. & W. 244, 248. E. R. Co. L. R. 3 Ex. 150 (in Cam. [Where a passenger has been requested to Scac.) • 4 lb. 117 ; Vennall v. Garner, 1 take an inside seat, but, in fact, takes a C. & M. 21 ; [White v. Winnisimmet Co. seat outside of the coach, this does not 7 Cush. 155 ' Eailroad Co. v. Aspell, 23 excuse the driver from the exercise of Penn. St. 147 ; Evansville &c. E. E. Co. ordinary care. Keith v. Pinkham, 43 v Duncan, 28 Ind. 441 ; Sheridan v. Maine, 501.] Brooklyn &c. E. E. Co. 36 N. Y. 39; 734 SUBJECT-MATTER OF CONTRACTS. control of the former might, by the exercise of proper care and skill, have avoided the accident which caused the injury. (cT) And so, where a child, who was too young to take care of itself, was in- jured by the negligence of the servants of a railway company ; but the person in whose care the child was when the accident happened, was also guilty of negligence without which the accident would not have happened ; it was held, that an action in the name of the child could not be maintained against the company, (e) But it is no answer to an action of this kind, that the mischief complained of was in part occasioned by the misconduct of the per- son who had the management of the conveyance on which the plaintiff was at the time of the accident. (/) Where an accident occurs to a passenger, owing to the wrongful Action by act, neglect, or default of a carrier, and such accident under fl r & 10 occasions the death of the passenger, an action may now "^'27 & 28 ^ e maintained against the carrier, by the executor or Vict. c. 95. administrator of the passenger, in order to recover com- pensation for the benefit of the wife, husband, parent, or child of the deceased ; or if there be no executor or administrator, or if he does not bring an action under the statute within six calendar months after the death of the deceased, then such action may be brought by and in the name or names or all or any of the per- sons for whose benefit the executor or administrator might have sued ; and such action shall be for the benefit of the same person or persons as if it had been brought by the executor or admin- istrator, (cf) Action And lastly, an action will lie against a railway com- againstrail- J . ° • 1 1 way com- pany, at the suit ot any one who has sustained damage, carrying oc- by reason of their not having had a train running at a (d) Thorogood v. Bryan, 8 C. B. 115 ; niary benefit, as of right or otherwise, from 18 L. J. C. P. 336. [See Palmer v. Ando- the continuance of the life of the deceased, ver, 2 Cush. 600 ; Murdock v. Warwick, Franklin v. South Eastern Eailway Co. 4 Gray, 178; Marble v. "Worcester, 4 3 H. & N. 211; Dalton v. Same, 4 C. B. Gray, 395 ; Chapman v. New Haven K. N. S. 296 ; Blake u. Midland Railway B. Co. 19 N. H. 341.] Co. 18 Q. B. 93 ; Duckworth u. Johnson, (e) Waite v. North Eastern Railway 4 H. & N. 653 ; Pym v. Great Northern Co. E., B. & E. 719. Railway Co. 2 B. & S. 759. [See Kearney (/) Rigby v. Hewitt, 5 Exch. 240/ v. Boston & Worcester R. R. Corp. 9 (g) 9 & 10 Vict. c. 93 ; 27 & 28 Vict. Cush. 108 ; Carey v. Berkshire R. R. Co. c. 95. In actions on this statute the and Skinner v. Housatonic R. R. Corp. damages are to be calculated with refer- 1 Cush. 475 ; Ford v. Monroe, 20 Wend. ence to a reasonable expectation of pecu- 210.] WAGERS. 735 particular hour, to a particular place, agreeably to the cording to statements contained in their time-tables, (h) bills! "" 5. Wagers. By the common law of England, an action might be maintained on a wager, (A 1 ) although the parties had no previous Atcommon interest in the question on which it was laid, provided law ' it was not against the interest or feelings of third parties, or did not lead to indecent evidence, or was not contrary to public pol- icy. 0') This was established in Good v. Elliott (jfe) — where the subject of the wager was, whether one S. T. had or had not, be- fore a certain day, bought a wagon, belonging to D. C. ; and which wager, three judges, contrary to the opinion of Buller J., held to be good, (f) So, a wager on the ages of the plaintiff and defendant was considered legal, (m) And it was held not to be material that the plaintiff knew, at the time, that he was right in (A) Denton v. Great Northern Railway Company, 5 E. & B. 860. As to what is sufficient evidence, to fix the company with this liability; Hurst t>. Great Western Railway Company, 7 H. & N. 310. As to the damages recoverable in such a case, see Hamlin v. Great Northern Railway Com- pany, 1 H. & N. 408. (h 1 ) [A wager is a contract conditional upon an event in which the parties have no interest, except that which they create by the wager.] (t) Per Lord Campbell, Thackoorsey- dass u. Dhondmull, 12 Jur. 315, 316, P. C. ; and see Bland v. Collett, 4 Camp. 157. The French law is to the following effect : " La loi n'accorde aucune action pour une dette de jeu, ou pour le paiement d'un pari. Les jeux propres a exercer au fait des armes, les courses Si pied ou a. che- val, les courses de chariot, le jeu de paume, et autres jeux de merne nature, qui tien- nent a l'adresse et h, l'exercice du corps, sont excepte'es de la disposition pre"cedente, neanmoins le tribunal peut rejeter la de- mande, quand la somme lui parait exces- sive." —Code Civil, bk. 3, tit. 12, c. 1. And by the French law the sum cannot in any case be recovered back if voluntarily paid, unless there was fraud. [A wager on a subject in which the parties have no pecuniary interest, is not a valid contract in New Hampshire. Perkins v. Eaton, 3 N. H. 152; Hoitw. Hodge, 6 N. H. 104; Clark v. Gibson, 12 N. H. 386. Aliter in New York. Bunn v. Riker, 4 John. 426. All wagers in the State of Maine are void. Lewis v. Littlefield, 15 Maine, 233. See Collamer o. Day, 2 Vt. 144 ; Amory v. Gilman, 2 Mass. 1 ; Babcock v. Thomp- son, 3 Pick. 446 ; Carrier v. Brannan, 3 Cal. 328. In Ball v. Gilbert, 12 Met 399, Shaw C. J. said : " In Massachusetts, it is believed no action has been sustained upon a wager ; perhaps because none has been brought. We are not aware that there has been any direct adjudication upon the sub- ject. As far as judicial opinions have been indirectly expressed, they have been ad verse to such an action.'' See 3 Kent, 278; Sampson u. Shaw, 101 Mass. 150.] (k) 3 T. R. 693. (1) And see Selw. N. P. tit. Wager (I.) ; Gilbert!;. Sykes, 16 East, 161 ;.[Shaw C. J. in Ball v. Gilbert, 12 Met. 399. It was held, that no recovery could be had in Vermont on a wager, that a certain chaise, then in sight, was the property of A. B. Collamer v. Day, 2 Vt. 144.] (m) Hussey v. Crickitt, 3 Camp. 168. 736 SUBJECT-MATTER OF CONTEACTS. regard to the matter respecting which the wager was laid ; (n) al- though, if it had appeared that one of the parties had the event in his own hands, it would have been held otherwise, (o) But, at common law, an action could not be maintained on a Action on, wager, first, if it was contrary to public, policy, or im- maintaiaabie m01 ' a h or in any other respect tended to the detriment at law. of the public; oiy secondly, if it affected the interest, feelings, or character of a third person, (o 1 ) Thus, wagers on the question of war or peace ; (p) on the event of an election of a member to serve in parliament ; (q) on the life of a foreign potentate at war with this country ; (r) on the amount of the hop duties, or of any other branch of the revenue ; (s) upon the market price of goods upon a future day ; (£) in restraint of marriage ; (u) or as to the acquittal or conviction of a prisoner on (n) Bland v. Collett, 4 Camp. 157. 8 John. 454 ; Deniston v. Cook, 12 John. (o) Fisher v. Waltham, 4 Q. B. 889. 376 ; Yeates v. Foot, 12 John. 1 ; Bunn v. {o 1 } [Shaw C. J. in Ball v. Gilbert, 12 Riker, 4 John. 426; Lloyd v. Leisenring, 7 Met. 399.] Watts, 294; Wagonseller v. Snyder, 7 (p) Foster v. Thackery, cited 1 T. R. 57, Watts, 343 ; Wroth v. Johnson, 4 Harr. & note (b) ; Busk v. Walsh, 4 Taunt. 290. MeHen. 284 ; Laval v. Myers, 1 Bailey, (q) Allen v. Hearn, 1 T. R. 56. [In 486; Smyth v. Masters, 2 Browne, 182; M'Allister v. Hoffman, 16 Serg. & R. 147, David v. Ransom, 1 Greene, 183; Hicker- it was decided, that money bet on an elec- son v. Benson, 8 Missou. 8; Russell v. tion, and deposited with a stakeholder, Pyland, 2 Humph. 131 ; Wheeler v. Spen- who, after the event of the election is cer, 15 Conn. 28; Foreman y.Hardwick, 10 known, has notice not to pay it over to the Ala. 316; Tarlton o. Baker, 18 Vt. 9; winner, but disobeys the notice, may be Machir v. Moore, 2 Grattan, 257 ; Porter recovered back from the winner. The «. Sawyer, 1 Harring. 517. A wager on same was held in McKee v. Manice, 11 the event of an election, is illegal and void Cush. 357. And in Ball v. Gilbert, 12 in Massachusetts. Ball v. Gilbert, 12 Met. 397, it was decided that when the Met. 397, in which the subject is fully parties to a wager on the event of an elec- examined, the cases reviewed, and the tion place money in the hands of a third grounds and reasons stated by Shaw C. person, as stakeholder, he is immediately J. ; McKee v. Manice, 11 Cush. 357. See liable, in the trustee process to the creditor M'Keon v. Caherty, 1 Hall, 300 ; Hasket of either for the deposit made by him. In t . Wootan, 1 Nott & McCord, 180 ; Atchi- Pennsvlvania, there is a statute prohibit- son v. Gee, 4 McCord, 211.] ing wagers on elections, under a severe (r) Gilbert!). Sykes, 16 East, 150. penalty, and all contracts founded on such wagers are declared void. In Like v. Thompson, 9 Barb. 315, it was held, that a bet on an election is void at common law, being against public policy. So, also, in Goodrich v. Frazier, Cir. Court, Knox Co. Tennessee, 27 Amer. Jur. 233. See Rust v. Gott, 9 Cowen, 169; Brush v. Keeler, 5 Wend. 250 ; Lansing v. Lansing, (s) Atherfold v. Beard, 2 T. R. 610; Shirley v. Sankey, 2 B. & P. 130. (() Hilberds v. Pettipierre, and Wardle v. Fowler, MS. Comyn on Contr. 2d ed. 58, note (p); Bryan v. Lewis, R. & M. 386. But not a wager on the price of foreign funds. Morgan v. Pebrer, 4 Scott, 230. (u) Hartley v. Price, 10 East, 22. WAGEKS. 737 trial on a criminal charge, (x) were respectively held to be unlaw- ful, because contrary to public policy. So, a wager as to the mode of playing an illegal game ; (jf) or upon a boxing, (z) or wrestling (a) match ; or a cock (J) or dog (e) fight, was held to be illegal. So it appears that a wager upon the result of a sparring match at a public exhibition, chiefly maintained to form scientific pugilists and encourage prize fighting, was not sustajnable. (d~) Nor would the courts sanction a wager made to try an abstract question of law, in which the parties had no inter- est ; (e) although in one case, (/) a wager on the event of an ap- peal to the House of Lords from the court of chancery was holden good ; the parties not having it in their power to influence the de- cision, and no fraud being intended. So a wager as to the sex of a third person ; (g~) or as to whether an unmarried woman would have a child (K) by a certain day, was held to be illegal, as unnecessarily leading to painful and indecent investigations. (A 1 ) And a wager as to the circumstances or solvency of a third per- son, was thought to be so far objectionable that the judge might re- fuse to try the cause, either in the exercise of his own discretion, or upon the application of the third party, whose interest might be affected by the inquiry. But it does not appear that such a wager was thought to be necessarily illegal, (i) Actions on wagers, however, were never much favored by the courts ; and regrets were often expressed that they had ever been (x) Evans v. Jones, 5 M. & W. 77. cerning any human being is recoverable in (y) Brown v. Leeson, 2 H. Bl. 43. a court of justice; and that therefore, a (z) Per Abbott C.J. Egerton v. Furz-' wager, whether or not Napoleon Bonaparte man R. & M. 213. would, within a specified time, be removed (a) Kennedy v. Gad, M. & M. 225 ; S. from the Island of St. Helena, was illegal C 3 C. & P. 376. an & T0 'd. Philips u. Ives, 1 Rawle, 37. (6) Squiers v. Waiskin, 3 Camp. 140. This case came up on a writ of error to the (c) Egerton v. Furzman, R. & M. 213. district court for the city and county of [See Grace v. M'Elroy, 1 Allen, 563-1 Philadelphia, that court being divided in (d) Hunt v. Bell, 1 Bing. 1. opinion, but a majority being against the (e) Henkin v. Guerss, 12 East, 247; legality of the wager: and it was deter- S C 2 Camp. 408. mined in the supreme court by the judg- '(/') Jones v. Randall, Cowp. 37, sed qu. ment of Huston, Rogers, and Todd Jus- te) De Costa v. Jones, Cowp. 729. tices ; Gibson C. J. and Smith J. dissent] (h) Ditchburn v. Goldsmith, 4 Camp. {») Thornton v. Thackray, 2 Y. & J. ' 156. See lb. 163 ; Robinson v. Mears, 6 D. (Ai) [It has been decided in the supreme & R. 26. court of Pennsylvania, that no wager con- vor.. i. 47 738 SUBJECT-MATTER OF CONTRACTS. sanctioned. Some judges, indeed, whilst sitting at nisi prius, Practice as even refused to try actions on wagers, which, although tionson 5 aC ~ not strictly illegal, raised questions which were trifling, r&Vvict 6 ridiculous, or contemptible. But, strictly speaking, a c. 109. judge had no such power, — though he had power to postpone the trial of such cases, until cases of more importance had been tried, (fc) At length, however, the legislature interfered ; and now, by stat. „ . . „ 8 & 9 Vict. c. 109, s. 18, it is enacted, " that all con- Provisions of the 8 & 9 tracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void, and that no suit shall be brought or maintained in any court of law or equity, for recovering any sum of money or valuable thing, alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made." The. effect of this enactment is to make void all wagers, and to prevent the bringing or maintaining any action for the xts cutset* recovery of money won on any wager. But it has been decided, that it has not a retrospective operation ; (T) and that, ac- cordingly, it did not defeat an action for a wager, which was com- menced before the passing of the act. (m ) 6. Guaranties and Indemnities. 1. Of the general nature of the contract. 2. How guaranties are affected by the statute of frauds. 1 . When the statute applies. 2. When it does not. 3. Of the form, &c, of the memo- randum. 3. Of the extent of the surety's liability. 4. How he may be discharged. 5. How he is indemnified. 1. The general nature of a contract of guaranty is sufficiently General na- simple. It is a collateral engagement, to answer for the corrtract'of debt, default, or miscarriage of another, (n) as distin- guaranty. guished from an original and direct engagement for the party's own act. (w 1 ) It is therefore of the essence of this con- tract, that there should be some one liable as principal ; and, ac- cordingly, where one party agrees to become responsible for an- other, the former incurs no obligation as surety, if no valid claim (k) Per Parke B. Evans v. Jones, 5 M. (m) 8th August, 1845. & W. 77, 80 ; Bate v. Cartwright, 7 Price, (n) See 29 Car. 2, c. 3, s. 4. 540. (n 1 ) [Burge Suretyship, 20.] {I) Moon v. Durden, 2 Exch. 22. GUARANTIES AND INDEMNITIES. 739 ever arises against the principal ; whilst, on the other hand, the lia- bility of the surety upon a claim which is good as against the prin- cipal, ceases so soon as such claim is extinguished, (n 2 ) But the rule that a party cannot be liable upon a contract of guaranty unless the principal be also liable is, in some cases, true in form or words, rather than in substance. Thus, in the case of a guaranty to answer for the price of goods to be supplied to a mar- ried woman ; or of goods, not necessaries, to be sold to an in- fant, (w 8 ) or other person incompetent to contract ; there is no (n 2 ) [An undertaking to guaranty need by the party with whom the contract is not be expressed in particular phraseoJogy, and, as appears from the following case in Maryland, may be inferred from circum- stances. Where A. had sold tobacco for B. to F. on a credit, and taken his note therefor, B., desirous of realizing the money due from F. addressed a letter to A., requesting him to state upon what terms he would guaranty the proceeds of his tobacco, and to say for what sum he might draw, if those terms were accepted by him. A. in answer, states the amount due to B., and authorizes him to draw for that amount, after deducting interest, with nine per cent exchange, on a part thereof, making no mention of the subject of guar- anty. B. makes the deductions, and draws on A. for the balance, which A. paid. F. having failed, no part of his note, when it became due, was paid ; and in an action by A. to recover from B. the money paid on B.'s draft, held, that A. contracted with B. to guaranty the payment of the money due from F. for the tobacco sold. Ferris u. Walsh, 5 Harr. & J. 306. See Bell v. Bruen, 1 How. (U. S.) 186; Law- rence u. M'Calmont, 2 lb. 449 ; Tatum u. Bonner, 27 Miss. 760. The mischief produced by the want of a provision in the Pennsylvania act of assembly, similar to that in the statute of frauds, by which a parol promise to pay the debt of another is void, has induced the courts to lean against a recovery, wherever the precise terms of the promise are not shown by clear and satisfactory proof. Per Gibson C. J. in Sidwell v. Evans, 1 Penn. 385. The contract of guaranty is in its nature made. Springer v. Hutchinson, 19 Maine, 359; True v. Fuller, 21 Pick. 140; La- mourieux v. Hewit, 5 Wend. 307 ; Can- field v. Vaughan, 8 Martin, 682 ; Tyler <;. Binney, 7 Mass. 479 ; TJpham u. Prince, 12 Mass. 14 ; M'Doal v. Yeomans, 8 Watts, 361 ; Snevily v. Ekel, 1 Watts & S. 203. See Watson v. McLaren, 19 Wend. 558 ; S. C. 26 lb. 425 ; Luqueer v. Prosser, 1 Hill, 256; S. G. 4 lb. 420; Barber v. Ketcham, 7 Hill, 444, 449 ; Smith r. Dick- inson, 6 Humph. 261 ; Myrick v. Hasey, 27 Maine, 9 ; Tinker u. McCauley, 2 Mich. 188. Still, the note itself may be negotiated by the same instrument which creates the guaranty. As, where a note was made payable to R. H. D., or order, it was held that these words, " I hereby guaranty the payment of the within note, R. H. T>.," written by the payee upon the back of the note, operated as a sufficient indorsement thereof. Myrick v. Hasey, 27 Maine, 9 ; Blakely v. Grant, 6 Mass. 386 ; Upham v. Prince, 12 Mass. 14 ; Story Promissory Notes, § 147, and note. The contrary was, however, held in Belcher v. Smith, 7 Cush. 482. See, also, Tuttle v. Bartholomew, 12 Met. 452 ; Taylor v. Binney, 7 Mass. 479 ; Canfield v. Vaughan, 8 Martin, 682; Allen u. Rightmere, 20 John. 365 ; Ketchell v. Burns, 24 Wend. 456 ; Van Derveer v. Wright, 6 Barb. 547.] (n 3 ) [If an infant purchase necessaries, and give a promissory note, signed by him- self and a surety, and the surety afterwards pays the note, he is entitled to recover the amount so paid of the infant. Conn o. Coburn, 7 N. H. 368. And the cause of special, and not negotiable ; and no suit action arises when the surety pays the can be maintained upon a guaranty except note. lb. See further, as to the remedy 740 SUBJECT-MATTER OF CONTRACTS. doubt that the party guarantying though professedly contracting only in the character of a surety, would be responsible ; for, either he could not urge the incapacity of the supposed principal ; or he might, by construction of law, be himself treated as the princi- pal. o 4 ) We have already seen that, in the case of every simple con- Considera- tract, a consideration is necessary to give it validity, (n 5 ) tionfor. ^ n( j we now remark f ur ther that, in the case of a guar- anty, the mere existence of the debt, default, or miscarriage, in re- spect of which it is given, is not a sufficient consideration to sup- port it ; so that, unless there be some further consideration for the promise of the guarantor, such promise will be void, (w 6 ) Thus, a promise to pay a debt already incurred by another, is not binding without some new consideration, such as for- bearance ; (o) or without showing that such past consid- eration was moved at the defendant's request, (jp) And, Past consid- eration in- sufficient. of a surety against his principal, Clark v. Foxcroft, 7 Greenl. 348 ; Pearson v. Par- ker, 3 N. H. 366 ; Cornwall u. Gould, 4 Pick. 444 ; Bonney v. Seely, 2 Wend. 481 ; New York State Bank v. Fletcher, 5 Wend. 85 ; Mauri ». Hefferman, 13 John. 58 ; Wetherby v. Mann, 11 John. 518.] (n 4 ) [See Maggs v. Ames, 4 Bing. 470 ; Connevat v. Goldsmith, 6 Geo. 14 ; Conn v. Cobnrn, 7 N. H. 368.] (n 6 ) [And on the other hand, the con- tract must be in writing, though there be a sufficient consideration. Simpson v. Patten, 4 John. 422 ; Jackson v. Baynor, 12 John. 291 ; Nelson v. Boynton, 3 Met. 396; Loomis v. Newhall, 15 Pick. 166; Stone v. Symmes, 18 Pick. 467. The law does not presume that a promise, though in writing, is made on sufficient considera- tion, so as to throw the burden of disprov- ing it on the promisor. Dodge v. Bur- dell, 13 Conn. 170.] (n 6 ) [An undertaking to answer for the debt of another, though in writing, and signed by the defendant, is void, if no consideration move between plaintiff and defendant, either of forbearance or other- wise. Elliott v. Giese, 7 Harr. & J. 457 ; Leonard v. Vredenburg, 8 John. 29 ; Bai- ley v. Freeman, 4 John. 280; Clark v. Small, 6 Yerger, 418; Cobb u. Page, 17 Penn. St. 469. See Bix v. Adams, 9 Vt. 233. A guaranty of a note like any other promise without consideration, is void; Aldridge o. Turner, 1 Gill & J. 427; Tenny v. Prince, 4 Pick. 385; S. C. 7 Pick. 243 ; Flagg v. Upham, 10 Pick. 148; Neelson v. Sanborne, 2 N. H. 414, 415; Manrow v. Durham, 3 Hill, 584; Hunt v. Brown, 5 Hill, 145 ; Lawrence v. M'Calmont, 2 How. (U. S.) 426 ; unless the undertaking is contemporaneous with the original debt ; in which case the guarantor is presumed to participate in the original consideration. Leonard v. Vredenburg, 8 John. 29 ; Tenny v. Prince, 4 Pick. 386, 387, per Parker C. J. ; Gillighan v. Board- man, 29 Maine, 79 ; D'Wolf v. Ribaud, 1 Peters (U. S.), 476 ; Bailey v. Freeman, 11 John. 221 ; Hunt v. Adams, 5 Mass. 358; Wheelwright v. Moore, 2 Hall, 143; S. C. 1 Hall, 648 ; 1 Hall, 201 ; Manrow v. Durham, 3 Hill, 584 ; Hunt v. Brown, 5 Hill, 145. See Hughes v. Littlefield, 18 Maine, 400 ; Nelson v. Boynton, 3 Met. 396 ; Snevely v. Johnson, 1 Watts & S. 303.] (o) Ante, 62 ; and see French v. French, 2 M. & G. 644, 649 ; 3 Scott N. R. 121, 125. (p) See Payne v. Wilson, 7 B. & C. 423, 426 ; Johnson v. Nicholls, 1 C. B. 251, 261, n. (a). GUARANTIES AND INDEMNITIES. 741 even in the case of a promissory note which is given by way of guaranty for a past debt, if it be shown by plea that there was no consideration, such as forbearance, this will be an answer to an action on the note. (os« debt, in the creditor to the original debtor, is good, (s) And it of future was probably on this ground that the following memo- randum was held to be sufficient : " I hereby guaranty the present account of Miss H. M., due to R. T. S. & Co., of 1121. ; and what she may contract from this date to the 30th September next." (€) So where, in consideration of advances made and to be made to A. and B., the defendant guarantied to A. and B. the Guaranty of repayment of the said advances, this was held to be j^tere ad- good, (u) mnces - And a guaranty will be good, although it may be doubtful whether it referred to a past or a future credit, — provided it ap- pear from all the circumstances of the transaction, that the parties contemplated the latter, (xi) And, in such cases, evidence is ad- missible to show what the transaction really was. Qy) But if it appear on looking at the facts, that the parties did (q) Crofts v. Beale, 11 C. B. 172. Haigh v. Brooks, in Way v. Hearn, 13 C. (r) Ante, 62. B. N. S. 305. But parol proof cannot (s) See White c^. Woodward, 5 C. B. be introduced, to show that a guaranty, 810; Boyd v. Moyle, 2 C. B. 644; John- addressed to one, was intended to be ad- eon v. Nicholls, 1 C. B. 251; and see West- dressed to two. Allison v. Rutledge, 5 head v. Sproson, 6 H. &N. 728. Yerger, 193. A guaranty addressed to (t) Russell v. Moseley, 3 B. & B. 211. one cannot be used as evidence in an action (u) Chapman v. Sutton, 2 C. B. 634. brought upon it by two. Allison v. Kut- (x) Colbourn v. Dawson, 10 C. B. 765 ; ledge, 5 Yerger, 193. A letter of credit Steele v. Hoe, 14 Q. B. 421 ; 19 L. J. Q. addressed by mistake to John and Joseph, B. 89 ; Edwards v. Jevons, 8 C. B. 436 ; and delivered to John and Jeremiah, will Goldshede v. Swan, 1 Exch. 154; Broom not support an action by John and Jere- v. Batchelor, 1 H. & N. 255. miah for goods furnished by them to the (y) Goldshede v. Swan, 1 Exch. 154 ; bearer, upon the faith of the letter of and see Butcher v. Stewart, 11 M. & W. credit. Grant v. Naylor, 4 Cranch, 224 ; 857 ; Haigh v. Brooks, 10 Ad. & El. 309. Bleeker v. Hyde, 3 McLean, 279 ; but see [See the remarks of Williams J. upon McNaughton v. Conkling, 9 Wise. 317.] 742 SUBJECT-MATTER OF CONTRACTS. not necessarily contemplate future advances, the guaranty will be void, (g) It must be borne in mind, however, — as was observed by Best Considera- ^" ^ - * n tne case °^ Morley v. Boothby, (a) — that " no tion need not court of common law has ever said that there should be be direct. a consideration directly between the persons giving and receiving the guaranty. It is enough if the person for whom the guarantor becomes surety receives a benefit, or the person to whom the guaranty is given suffer inconvenience, as an inducement to the surety to become guaranty for the principal debtor." We have likewise seen that it is not essential to the validity of a guaranty, as against the surety, that the person to whom it is given should bind himself to supply the goods, &c, for the price of which, if furnished, the surety is to be answerable. (b~) [But it is necessary that the guar- anty should be accepted.] (5 1 ) Party who re- ceives guar- anty need not be bound in the first instance. (z) Bell v. Walsh, 9 C. B. 154. (a) 3Bing. 107, 113. (6) Ante, 20, 21 ; and per Parke B. Ken- naway v. Treleavan, 5 M. & W. 498, 501. (J 1 ) [Where one makes a mere overture or offer to guaranty the transactions of another, he is entitled to notice that it was regarded as a guaranty, and meant to be accepted as such, to convert his offer into a conclusive guaranty. Caton v, Shaw, 2 H. & Gill, 13; Lowry v. Adams, 22 Vt. 160; Emerson v. Graff, 29 Penn. St. 358. F. applied to S. & T. for a loan of money, which they refused, without se- curity. He then brought to them the following letter from C. ; " Mr. F. tells me that he is about to loan from you five hundred dollars, and wishes me to state that I will become his eventual security for the payment. This I am willing to do, as I believe Mr. F. will be very punctual, having found him so on similar occasions." Addressed to S. & T. On its delivery they said they would have nothing to do with C. in money transactions. The let- ter being left with them, and their refusal not being communicated to C, in a day or two after, F. again applied to .them for money ; they lent him the sum of three hundred dollars, nothing being then said about the guaranty ; they, however, re- tained it, placed it away amongst their evidences of debts due them, and took from F. his note for the amount of the loan. Held, that there was evidence from which the jury might infer that S. & T. accepted C.'s letter as a guaranty for their loan to F., and that said letter was a con- clusive guaranty for the eventual repay- ment of » loan not exceeding the sum mentioned in it. Caton v. Shaw, 2 H. & Gill, 13. In the State of Maine it has been adjudged, that where a written guar- anty or letter of credit is given for a debt about to be created, and uncertain in its amount, so that the party cannot pre- viously know whether he is to be ultimately liable, nor to what extent, it is necessary, in order to charge him, that he should have notice, in a reasonable time, that the guaranty is accepted ; and also of the amount of debt created upon the faith of it. Norton u. Eastman, 4 Greenl. 521 ; Tuckerman v. French, 7 Greenl. 115; Sea- ver o. Bradley, 6 Greenl. 60; Howe v. Nickels, 22 Maine, 175. See Wildes v. Savage, 1 Story, 22 ; Kincheloe v. Holmes, 7 B. Mon. 5. In the supreme court of the United States, and in many of the states, it is settled, that in order to charge a GUARANTIES AND INDEMNITIES. 743 In many cases the law implies a promise to indemnify. Thus, where there is a parol demise by a lessee to an under- when a tenant, there is an implied promise by the former to the promise to 1 . t -pi. indemnify 13 latter, to indemnity him against any distress which may implied by be made by the superior landlord, for the rent due to guarantor, upon a letter of guaranty ad- dressed to a particular person, or to per- sons generally, for a future credit to be given to a party in whose favor the guar- anty is drawn, it is necessary that notice should be- given to him that the person giving the credit has accepted or acted upon the guaranty, and also that he has given credit on the faith of it. Adams v. Jones, 12 Peters, 207 ; Lee v. Dick, 10 Pe- ters, 482* Russell v. Clarke, 7 Cranch, 69 ; Edmonson v. Drake, 5 Peters, 624 ; Doug- lass v. Reynolds, 7 Peters, 113; S. C. 12 Peters, 497 ; Louisville Man. Co. v. Welch, 10 How. (U. S.)461 ; Cremerw. Higginson, 1 Mason, 323 ; Wildes v. Savage, 1 Story, 22 ; Taylor v. Whetmore, 10 Ohio, 490 ; Rankin v. Childs, 9 Missou. 674 ; Lawsonu. Townes, 2 Ala. 373 ; Williams v. Stanton, 5 Sin. & M. 347 ; Sollee v. Mengy, 1 Bailey, 620; Kay u, Allen, 9 Barr, 320. See, also, Shewell v. Knox, 1 Dev. 404 ; Train v. Jones, 11 Vt. 444 ; Smith v. Ide, 3 Vt. 290; Babcock u. Bryant, 12 Pick. 133; Thomas v. Davis, 14 Pick. 353 ; Adcock v. Fleming, 2 Dev. & Bat. 225 ; Grice ■.-. Ricks, 3 Dev. 62 ; Sherrod v. Woodward, 4 Dev. 360 ; Dole v. Young, 24 Pick. 250 ; Oaks v. Weller, 13 Vt. 106 ; S. C. 16 lb. 63 ; Peck v. Barney, lb. 93 ; Hill v. Cal- vin, 4 How. (Miss.) 231. The same has been held in Massachusetts and Vermont. Mussey v. Rayner, 22 Pick. 223 ; Allen v. Pike, 3 Cush. 238 ; Lowry v. Adams, 22 Vt. 169. The same rule has been acted on in several other states. Per Wilde J. 3 Cush. 242 ; Eaton v. Tiffany, 2 H. & Gill, 22 ; Beekman v. Hall, 17 John. 134; Kay u. Allen, 9 Barr, 320 ; Walker v. Forbes, 25 Ala. 139 ; Lawton <--. Maner, 9 Rich. Law (S. C), 335 ; Fay v. Hall, 25 Ala. 104; Bell v. Kellar, 13 B. Mon. 381 ; Kel- logg v. Stockton, 29 Penn. St. 460. In the case of a continuing guaranty, looking to several successive transactions, when no- tice of acceptance has once been given, it is not necessary that notice of each succes- sive transaction should be given. Lowew. Beckwith, 14 B. Mon. 184. But when all the transactions under the guaranty are closed, notice of the amount for which the guarantor is responsible, must, within a reasonable time be given to him. Doug- lass u. Reynolds, 7 Peters, 113; Mus- sey v. Rayner, 22 Pick. 223; Clark u. Remington, 11 Met. 365 ; Howe v. Nickels, 22 Maine, 175; Dunbar v. Brown, 4 McLean, 166; Louisville Manuf. Co. <,. Welch, 10 How. (U. S.) 461 ; Courtis v. Dennis, 7 Met. 510. The same is the law in Connecticut. Craft v. Isham, 13 Conn. 28 ; New Haven County Bank v. Mitchell, 15 Conn. 206. But the courts of New York have expressly dissented from this doctrine of notice. Douglass v. Howland, 24 Wend. 35 ; Whitney v. Groot, 24 Wend. 82 ; Smith v. Dunn, 6 Hill, 543 ; Curtis v. Brown, 2 Barb. 51. In Vermont, express notice, in such a case, seems not to be re- quired, but it is enough if the facts of ac- ceptance and giving credit be seasonably made known to the signer in any other way. Train v. Jones, 11 Vt. 444; Oaks v. Weller, 16 Vt. 63; Noyes v. Nichols, 28 Vt. 159. A promise to pay by the guarantor is sufficient evidence of notice. Peck v. Barney, 13 Vt. 93. See Hall v. Newcomb, 7 Hill, 416 ; Whitney v. Groot, 24 Wend. 82. But see Reynolds v. Douglass, 7 Peters, 497. It is nowhere held -necessary that there should be the same promptness, as in the case of an indorser, to give notice that the principal has not paid the demand. Bull v. Bliss, 30 Vt. 127; Peck v. Barney, 13 Vt. 93; Train v. Jones, 1 1 lb. 444 ; Heaton v. Hurlburt, 3 Scam. 491 ; Thrasher v. Ely, 2 Sm. & M. 139 ; Talbot v. Gay, 18 Pick. 744 SUBJECT-MATTER OF CONTRACTS. him, — so long, at least, as the undertenant pays his rent to his immediate landlord, (c) So, where a lessee assigns the premises, the effect of the assign- ment is, that he becomes surety to the lessor for the assignee, who, as between himself and the lessor, is the principal, bound, whilst he is assignee, to pay the rent and perform the covenants running with the estate ; and the lessee, after paying the rent, or discharging the obligation to which the assignee for the time being is liable, has his remedy over against him, whether he be the immediate assignee of the lessee or not ; and although he and each mesne assignee may have expressly covenanted with his immediate assignor, to indem- nify him against all subsequent breaches, (i) 534 ; Dole v. Young, 24 Pick. 250 ; Doug- seems to be entirely a question of law, lass v. Howland, 24 Wend. 35 ; Curtis u. and not one proper to be submitted to the Brown, 2 Barb. 51 ; McDougal u. Calef, jury. Craft v. Isham, 13 Conn. 28 ; Howe 34 N. H. 534, 542. But see Lewis a. v. Nickels, 22 Maine, 175. The doctrine Brewster, 2 McLean, 21 ; Foot v. Brown, relative to notice of the acceptance of a lb. 369; Hank v. Crittenden, lb. 557. The guaranty, does not apply, where the agree- guarantor should have every reasonable ment to accept is contemporaneous with opportunity to secure himself from loss, the guaranty, and was the consideration of But, if no damage accrues in consequence it, and all the parties are originally privy of the delay, notice of non-payment by to the whole transaction ; Wildes v. Sav- the principal may be given to the guaran- age, 1 Story, 22 ; Bleeker v. Hyde, 3 tor, at any time before action brought. McLean, 279 ; New Haven County Bank The mere fact of delay does not affect the "■ Mitchell, 15 Conn. 206 ; nor where the obligation ; but delay causing damage may guaranty is absolute, and definite as to its amount and extent. Union Bank of Louisiana v. Coster, 1 Sandf. 563 ; S. C. 2 discbarge it. Babcock v. Bryant, 12 Pick. 133; Talbot v. Gay, 18 Pick. 534; Salis- bury v. Hale, 12 Pick. 416 ; Oxford Bank lb- 203 ; Wilde J. in Allen v. Pike, 3 Cush. 242; Yancy u. Brown, 3 Sneed (Tenn.), 89; 3 Kent, 124; McDougal u. Calef, u. Haynes, 8 Pick. 423 ; Thomas v. Davis, 14 Pick. 353; Whiton v. Mears, 11 Met. 564; Clark v. Remington, 11 Met. 361 ; supra; Bebee v. Dudley, supra; Breed u. Craft v. Isham, 13 Conn. 28; Wildes v. Savage, 1 Story, 22 ; Louisville Manuf. Co. v. Welch, 10 How. (TJ. S.) 461 ; Mc- Hillhouse, 7 Conn. 323 ; Butler v. Wright, 20 John. 367 ; Cooper v. Page, 24 Maine, 73 ; Matthews v. Crisman, 12 Sm. & M. Dougal v. Calef, 34 N. H. 534, 542 ; Nor- 595 ; Walker v. Forbes, 25 Ala. 139 ; Batch- ton v. Eastman, 4 Greenl. 521 ; Howe v. elder v. Wendell, 36 N. H. 204. As to no- Nickels, 22 Maine, 175; Bebee v. Dudley, ticeincase of the insolvency of the prin- 26 N. H. 249 ; Schofield *>. Haley, 22 cipal ; Bashford v. Shaw, 4 Ohio St. 263.] Maine, 164 ; Khete «. Poe, 2 How. (U. S.) 457 ; Peck v. Barney, 13 Vt. 43 ; Walker v. Forbes, 25 Ala. 139 ; Bull v. Bliss, 30 Vt. 127; Farrow v. Respess, 11 Ired. L. 170; Yancey v. Brown, 3 Sneed, 89 ; Farmers' & Mechanics' Bank v. Kercheval, 2 Mich. 504; Bickford v. Gibbs, 8 Cush. 154. What is a reasonable notice to charge a (c) Hancock v. Caffyn, 8 Bing. 358. When the underlease is by deed, the law does not imply a promise to indemnify ; but the remedy of the underlessee is on the covenant for quiet enjoyment. Schlenc- ker v. Moxsy, 3 B. & C. 789. (d) Moule v. Garrett, L. R. 5 Ex. 132; Wolveridge v. Steward, 1 C. & M. 644, guarantor, the facts not being in dispute, 660 ; Burnett v. Lynch, 5 B. & C. 589. GUARANTIES AND INDEMNITIES. 745 So, if A. become surety or bail for B., at his request, the law im- plies a promise by B. to indemnify him. (e) So where A. entered into a recognizance of bail for B., on the removal by certiorari of an indictment for conspiracy, from the central criminal court to the court of queen's bench ; and B. was convicted, and the recogniz- ances estreated for the non-payment of the prosecutor's costs : it was held that A. might sue B., as upon an implied indemnity. (/) So there is, even at law, an implied contract between sureties, to contribute equally in discharging the demands for which they be- come responsible for their principal. (#) So, in the case of an accommodation acceptance or indorsement, there is an implied engagement on the part of the person requesting the accommodation, that he will indemnify the acceptor or indorser to the extent of the sum payable on the bill, (h) The master of a ship, damaged by perils of the seas, hypothecated, at a foreign port, by one bottomry bond, the ship, freight, and cargo, — amongst which were the plaintiff's goods, — for necessary re- pairs. The ship and freight realized less than the sum borrowed ; and the plaintiff was obliged to contribute towards the difference, and also to pay his proportion of the costs of a suit, instituted in the court of admiralty by the obligee of the bond ; and it was held, that the plaintiff might maintain an action against the owner of the ship, on an implied promise to indemnify, (t) So the law implies a promise, on the part of the principal, to in- demnify his agent against any liability which he may incur from the execution of his authority. (&) And it is held, that there is an implied promise by the transferee of shares in a joint-stock company, to indemnify the transferor against calls made subsequent to the transfer, and before the regis- tration of such transfer in the books of the company. (0 See, further, Groom v. Black, 2 M. & G. that therefore the law would not imply 567 • 2 Scott N. R. 665 ; Lesenbury v. such a contract. lb. 624. Evans, 3 M. & G. 210 ; 3 Scott N. R. (g) Davies v. Humphreys, 6 M. & W. 476 • Humble v. Langston, 7 M. & W. 153, 168. 517 ' 530 (A) Reynolds v. Doyle, 1 M. & G. 753; (e) Per Ashhurat J. Toussaint v. Mar- 2 Scott N. R. 45. tinnant 2 T. R. 100, 104; [Holmes v. (i) Duncan v. Benson, 1 Exch. 537; S. Weed, 19 Barb. 128.] ' C. (in Cam. Scac.) 3 Exch. 644. (/)' Jones v. Orchard, 16 C. B. 614. It (k) Westropp v. Solomon, 8 C. B. 345 ; would seem, however, that a contract in a 19 L. J. C. P. 1, 9 ; [Powell v. Newburg, criminal case, to indemnify the bail against 19 John. 284; Ramsay «. Gardner, 11 the consequences of a default of the prin- John. 439 ; Gower v. Emery, 18 Maine, cipal's appearance, on the trial of the in- 79.1 dictment, is contrary to public policy ; and (I) Walker v. Bartlett (in Cam. Scac), 746 SUBJECT-MATTER OF CONTRACTS. But where it appeared that the plaintiff took a house of the de- fendant, at a yearly rent, under an agreement, by the terms of which the latter undertook that, up to the date of the agreement, he had paid, or would pay or discharge, " all arrears of rent, rates, taxes, or assessments ; " and the former agreed that, " from and after that day the same should be kept paid by him for the period he might occupy the premises ; " and at the expiration of the first quarter, the superior landlord distrained for rent ; it was held, that there was no implied promise by the defendant to indemnify the plaintiff against this claim, although the agreement between them stipulated for a yearly rent ; the defendant having, by the subse- quent clause, expressly undertaken to keep the reserved rent paid, (to) And the mere fact of the goods of a person who is not tenant of the land, but which are lawfully on the land, being distrained upon for a sum chargeable on the land, and which the owner of the land ought to have paid, — e. g. a tithe rentcharge, — does not entitle such person to sue the owner, as on an implied contract of indem- nity, (w) Where a party is either expressly or impliedly indemnified Eight of the against the demand of a third person, he has no right, mfiedto're?" without express authority, to defend an action by the cover costs, latter, and then to claim the costs of such defence from the surety ; unless in defending the action and incurring such costs, he has acted as a reasonable and prudent man, unindemnified, would have acted in his own case, (o) Thus, in Gillett v. Rip- pon, (p~) the plaintiff sued on a contract to indemnify him against 18 C.B. 845; reversing Walker u.Bartlett, (m) Upton v. ' Eergusson, 3 M. & Sc. 17 C. B. 446 ; and semble overruling Hum- 88. ble v. Langston, 7 M. & W. 517. By the (n) Griffinhoofe r. Daubuz (in Cam. usage of the stock exchange, where shares Scac. ), 5 E. & B. 746. are sold to a jobber, he is at liberty, before (o) Brown r. Hall, 7 C. B. N. S. 503. the settling day, to transfer the contract ; [See Bayley Bills (2d Am. ed.), 380; and if the original seller accepts the job- Simpson v. Griffin, 9 John. 131 ; Steele v. ber's nominee and executes a. transfer to Sawyer, 2 McCord, 459 ; Jones v. Phil- him, the jobber is released from the above lips, 1 Peters (U. S.), 350.] Where the liability. See Grissell v. Bristowe (in Cam. action has been properly defended, the Scac), L. R. 4 C. P. 36 ; Torrington u. indemnity covers the whole costs, and not Lowe, lb. 26 ; Maxted v. Paine, L. R. 4 merely the taxed costs of the defence. Exch. 203 ; Coles v. Bristowe, L. R. 4 Howard v. Lovegrove, L. R. 6 Ex. 43. Ch. Ap. 3 ; Hawkins v. Maltby, lb. 200 ; (p) M. & M. 406 ; and sec per Lord Cruse v. Paine, lb. 441 . Ellenborough, Spurrier v. Elderton, 5 Esp. 3; Eisher v. Fallows, lb. 171. GUARANTIES AND INDEMNITIES. 747 the. expenses of a commission of bankruptcy issued at his suit, and he claimed the costs of an action brought by the messenger for his bill. Notice of the messenger's action was given to the defend- ant ; and it was contended, that he was liable for the costs, be- cause he should have paid or stopped the action. But Lord Ten- terden C. J. said : " I think the defendant is not liable for the costs beyond the writ ; a man has no right, merely because he has an indemnity, to defend an action and to put the person guaranty- ing to useless expense." So a surety who defends an action brought to recover moneys due from the principal, cannot recover contribution from his co-surety for the costs of the action, unless authorized by him to defend, q So it is doubtful whether, if an accommodation acceptor or in- dorser defend an action on the bill, not at the request of the person for whose accommodation he became a party thereto, he will be en- titled to recover, on the implied promise of indemnity, the costs incurred in such action ; (r) although, if the defence be undertaken in consequence of such request, he will be entitled to recover such costs, as money paid to the defendant's use. (s) And it is clear that, in ordinary cases, the indorser of a bill who has had an action brought against him by the indorsee, is not enti- tled to recover from the acceptor the costs which he has incurred in such action, (t) Where, however, A. sued B., and B. gave notice to C, against whom he had a remedy over, to come in and defend the action, / which C. refused to do, but did not prohibit B. from continuing the defence : and B., having suffered judgment by default, watched the proceedings under the writ of inquiry, thereby putting A. to the proof of his claim ; it was held, that the jury were justified in finding that B.'s costs had been incurred with the sanction of C. ; and that, therefore, he was entitled to recover them in an action against the latter, (u) It has been said that, if a man becomes surety for a debtor, the creditor, in case the debtor fails, may recover the debt against the surety, but not the costs of a fruitless suit against the debtor, unless (q) Knight v. Hughes, M. & M. 247; Matthews, 3 Exch. 48; 12 Jur. 924; S. C. 3 C. & P. 467. Jones v. Brooke, 4 Taunt. 925, contra. (r) Beech v. Jones, 5 C. B. 696 ; Roach (s) Garrard v. Cottrell, 10 Q. B. 679. v. Thompson, M. & M. 487; Stratton v. (t) Dawson v. Morgan, 9 B. & C. 618. (u) Blyth v. Smith, 5 M. & G. 405. 748 SUBJECT-MATTER OF CONTRACTS. he gave notice of his intention to sue. (x) But if the creditor chooses to have recourse, in the first instance, to the principal debtor, instead of to the surety, it is difficult to see what ground the mere fact of giving notice to the latter, of his intention to adopt this course, can afford him for charging the surety with the conse- quences of his failure. Where one person, under the express directions of another, does T , . an act which occasions an injury to the rights of a third, Indemnity . ... between if such act was not apparently illegal in itself, but was done honestly and bond fide in compliance with the em- ployer's directions, he is bound to indemnify the person employed, against the consequences thereof. (y~) And, d fortiori, an express promise given in such a case is valid. Thus, in Fletcher v. Har- cot, (z) it was said : that " when the consideration appears to be for doing of a thing which is unlawful, — as if one, at the request of J. S., promised to beat J. D., and he promised to save him harmless, — this is a void consideration. But if one request J. S. to enter into the Manor of Dale and drive out cattle, and that he will save him harmless if he doth so ; and, after, trespass be brought against him and recovery had, he shall have his action. So if a sheriff, pretending to have a writ where he hath none, arrest one, and request an innkeeper to entertain him in his house ; or hire one to conduct the prisoner to the jail, and promise to keep him without damage ; if an action be brought and recovery had thereupon, the party shall have an action of the case against the sheriff upon this promise. For he which doth a thing which may be lawful, and the illegality thereof appear not to him, he which employs the party, and assumes to save him harmless, shall be charged." But the general rule is, that there is no contribution amongst wrong-doers, (s 1 ) so that where one man does an act at the instance of another, which the former must be taken to have known to be against law, even an express promise to indemnify him is void, (a) (x) Per Best C. J. Baker v. Garratt, 3 (z) Hutton, 55, reported as Battersey's Bing. 56, 60. case, Winch. 48 ; Bull. N. P. 146 a. (y) Per Cur. Toplis a. Grane, 7 Scott, (z 1 ) [Lowell u. Boston & Lowell R. R. 620, 643 ; Betts v. Gibbins, 2 A. & E. 57 ; Corp. 23 Pick. 24 ; Armstrong v. Toler, Collins o. Evans, 5 Q. B. 820, 830; [Ja- 11 Wheat. 258 ; post, "Money Paid."] cobs v. Pollard, 10 Cush. 287 ; Moore v. (a) Martyn u. Blythman, Yelv. 197 ; Appleton, 26 Ala. 633 ; Acheson v. Mil- Shackcll e. Rosier, 3 Scott, 59 ; and see ler, 2 Ohio (N. S.), 203.] Fivaz „. Nicholls, 2 C. B. 501. [An agreement to indemnify against an act, GUARANTIES AND INDEMNITIES. 749 And in Merryweather v. Nixan, (J) in which this doctrine was recognized and acted upon, Lord Kenyon said, that the decision would not affect cases of indemnity, where one man employed an- other to do acts not unlawful in themselves, for the purpose of as- serting a right. And it seems, that where an agent commits an offence for which his principal is criminally responsible, — as, for instance, where the editor of a newspaper publishes a libel, — the principal, the pro- prietor of such newspaper, cannot recover from the agent any dam- ages which he, the principal, may have sustained by having been convicted of such offence, although the agent acted in the matter without his knowledge or consent, (c) 2. The statute of frauds, 29 Car. 2, c. 3, s. 4, provides " that no action shall be brought, whereby to charge the de- Guaranties, fendant upon any special promise to answer for the debt, by the statute default, or miscarriage of another person, unless the offrauds - agreement upon which such action shall be brought, or some mem- orandum or note thereof, shall be in ivriting and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." (d~) Let us first consider to what cases this statute applies. 1st. It is clearly settled that the statute applies only to collateral engagements ; and that it has not, either in its words or principle, any reference to cases where there is an statute ap- original promise to pay a debt or satisfy a demand or damages, for which no other person was intended or expected to be responsible, (e) The statute, however, applies as well to contracts to be answerable for the debt of another, as to engagements to satisfy damages recovered or recoverable against another ; and it is not necessary that the third party should have requested the person giving the guaranty, to enter into the engagement, or that he should be in any manner a party thereto. known to be illegal or immoral, to be Farebrother v. Ansley, 1 Camp. 343, 345 ; done at some future time, is void. See Wilson v. Milner, 2 lb. 452. Kneeland v. Rogers, 2 Hall, 579 ; Doty (c) Colburn v. Patmore, 1 Cr., M. & R. v . Wilson, 14 John. 381 ; Stone v. Hooker, 73, 84, n. (a). 9 Cowen, 154 ; Ayer v. Hutchins, 4 Mass. (rf) There is now a similar enactment 370 ; Churchill v. Perkins, 5 Mass. 341 ; for Scotland, 19 & 20 Vict. c. 60, s. 6. Hodsdon v. Wilkins, 7 Greenl. 113.] (e) Mountstephen v. Lakeman, L. R. 5 (6) 8 T. R. 186 ; and see per Best C. J. Q. B. 613 ; [Hodges v. Hall, 29 Vt. 209 ; Adamson v. Jarvis, 12 Moore, 251, 252; Walker, v. Norton, 29 Vt. 226.] 750 SUBJECT-MATTER OF CONTRACTS. Where the engagement is collateral within the statute. The question, therefore, whether any particular case comes within this clause of the statute, depends on whether the result of the contract is, to create any primary liability on the part of the defendant. (/) And accordingly it is held, that if the person for whose use goods are furnished upon the defendant's guaranty, be liable to the vendor, the defend- ant's engagement, though it may have been the chief inducement to the plaintiff to supply the goods, is collateral, and must be re- duced into writing. (. Wait, 28 Vt. 450; only, however, to the Smith o. Sayward, 5 Greenl, 504; Boyce extent of the value of the property re- v. Owens, 2 McCord, 208 ; Scott a. ceived. See Thomas v. Williams, 10 B. Thomas, 1 Seam. 58 ; Wait v. Wait, 28 & C. 664 ; Aston J. in Williams v. Leper, Vt. 350. A promise to pay the debt of a 3 Burr. 1836.] third person, in consideration of n prom- GUARANTIES AND INDEMNITIES. 757 Tims, where a broker, who was employed to sell the goods of an insolvent for the benefit of his creditors, in order to prevent the landlord of the insolvent from distraining for rent tnen in arrear which he was about to do, gave him a parol promise to pay the rent then due, if he would desist ; this was holden not to be within the statute of frauds, inasmuch as the landlord had, through the medium of the threatened distress, a lien on the goods, the parting with which was a good consideration for the promise. (/) And where the landlord had actually distrained, and, in con- sideration of the plaintiff delivering up the distress to the defend- ant, he promised " to pay all such rent as should appear to be legally due from the tenant ; " it was held, (#) that the statute did not apply, and that the case was governed by Williams v. Leper. O 1 ) So where the plaintiff, having goods in his possession under an absolute bill of sale, forbore to sell them, upon the defendant's verbal undertaking to pay the debt to secure which the bill of sale was given ; the verbal promise was held to be sufficient. (A) And a verbal promise to an agent, to provide for bills he had accepted for his principal, if he, the agent, would give up certain valuable papers whereon he had a lien, and by means of which his demand could be satisfied, has been held to be valid, (i) But the real question in such cases would now appear to be, not whether the promise of the guarantor was given on a ^.uie in such new consideration ; but whether, by accepting his liabil- caseSi ity, the party to whom the promise was given has relinquished his claim on the party originally liable. (&) And accordingly it may be questioned, whether any case similar to those above cited would now be held not to be within the statute, unless it appeared that the promisee, by giving up his lien or charge on the property of the party originally liable, had left himself wholly without a remedy (/) Williams a. Leper, 3 Burr. 1886; Allen, 405 ;Langdon v. Hughes, 107 Mass. S. C. 2 Wils. 308 ; Bampton u. Paulin, 4 274, 575.] Bing. 264 ; and see "Walker v. Taylor, 6 (g 1 ) [See Nelson v. Boynton, 3 Met. C. & P. 752. 390 ; Lampson v. Hobart, 28 Vt. 697.] (g) Edwards v. Kelly, 6 M. & S. 204 ; (h) Barrell v. Trussell, 4 Taunt. 117. [Alger v. Scoville, 1 Gray, 391; Nelson (i) Castling!). Aubert, 2 East, 324, 325. v. Boynton, 3 Met. 402 ; Curtis v. Brown, See these cases commented on in Thomas 5 Cush. 488 ; Leonard v. Vredenburg, 8 v. Williams, 10 B. & C. 664 ; and see John. 39 ; Earley v. Cleveland, 4 Cowen, Houlditch v. Milne, 3 Esp. 87. 432; Wait v. Wait, 28 Vt. 350; Lau:p- (k) Ante, 749; Green v. Cresswell, son v. Hobart, 28 Vt. 697; Spooner v. 10 A. & E. 453; 1 Wrcs. Saund. 211 c, Dunn, 7 Ind. 81 ; Wood v. Corcoran, 1 211 d. 758 SUBJECT-MATTER OF CONTRACTS. against him. (k 1 ) Where, therefore, the plaintiff, who had a judg- ment and execution against one L., was induced by the defendant to withdraw the execution, — the latter taking an assignment of all L.'s property, and undertaking to pay the plaintiffs debts ; it was held, that this was not a promise within the statute ; because, by the arrangement, L. had been discharged. (7) It follows from the above principle, that where the Statute does .... , . . , .. , . , . not apply original demand is destroyed or discharged by the new naUkbmty" verbal agreement, the statute does not apply, (m) discharged. Thus, where A. being insolvent, a verbal agree- ment was entered into between several of his creditors and B., whereby B. agreed to pay the creditors 10s. in the pound, in satisfaction of their debts ; and they agreed to accept the 10«., and to assign their debts to B. ; the court held that this agreement was not within the statute of frauds, it not being a collateral promise to pay the debt of another, but an original contract to purchase the debt, (m) So, where the vendee of goods, being unable to pay for them, transferred and delivered them to the defendant ; and the latter agreed with the vendor to become the purchaser of and to pay for the goods ; the court held that this was a new sale, and not a mere promise to pay the debt of another, (o) So, an agreement to convert a separate into a joint debt, is not within the statute ; the effect of such agreement being to create a new debt, in consideration of the former being extinguished, (jp) On the same principle it has been held, that a promise to produce a third person, or to pay a debt due from him on a judgment, in (k l ) [Where, by the new promise, the ing. Per Shaw C. J. in Curtis v. Brown, old debt is extinguished, the promise is 5 Cush. 492. But see Wait v. Wait, 28 not within the statute ; it is not then the Vt. 350.] promise to pay the debt of another, which (I) Bird v. Gammon, 5 Scott, 213, 220. has accrued ; but it is an original contract (m) See 1 Wms. Saund. 211 c; [per on good consideration, and need not be in Shaw C. J. in Curtis v. Brown, 5 Cush. writing. See Alger v. Scoville, 1 Gray, 492 ; Nelson v. Boynton, 3 Met. 396 ; 391; Wood t . Corcoran, 1 Allen, 405; Butcher v. Stewart, 11 M. & W. 857; Walker v. Penniman, 8 Gray, 233; Pur- Decker v. Shaffer, 3 Ind. 187; Bason v. bish v. Goodnow, 98 Mass. 296; Langdon Hughart, 2 Texas, 477 ; Stanley v. Hen- u. Hughes, 107 Mass. 274, 275. But dricks, 13 Ired. 86 ; Van Epps v. McGill, where the original debt still subsists, and Hill & Denio (N. T.), 109 ; Watson v. where the plaintiff has relinquished no Jacobs, 29 Vt. 169.] interest or advantage, which has inured (n) Anstey v. Marden, 1 N. E. 124. to the benefit of the defendant, it is not (o) Browning v. Stallard, 5 Taunt, an original contract, but a contract to 450. pay another's debt, and must be in writ- (p) Ex parte Lane, 1 De Gex, 300. GUARANTIES AND INDEMNITIES. 759 consideration that the plaintiff, who has taken him in execution upon a ea. sa., will consent to his discharge out of custody, is an original promise, and not within the statute ; such discharge operat- ing as an extinguishment of the debt, (y) But the statute applies, if the original demand be allowed to subsist, and the parties merely stipulate for an indulgence to the debtor, — such as, that an action commenced shall be stayed. (V) Again : if the third party be not by law liable for the demand, — as in the case of goods, not being necessaries, fur- . nished to an infant, — the defendant's promise cannot be made for considered as collateral, and consequently need not be in writing, (s) So, the statute applies only to promises made to persons to whom another is already, or is expected to become liable ; and the promise must be, to be answerable for a debt of, or rromisemust a default in some duty by that other, towards the prom- isee. (<) Therefore, a promise by the defendant to the plaintiff, to pay A. B. a debt due from the plaintiff to A. B., is not within the statute, (m) (q) Lane u.Burghart, 1 Q. B. 933, 937 ; Goodman v. Chase, 1 B. & Aid. 297. (r) Fish v. Hutchinson, 2 Wils. 94; King v. Wilson, Str. 873 ; [Carpenter v. Gray, 4 Yerger, 563.] (s) Harris u. Huntbach, 1 Burr. 373. See Duncombe v. Tickridge, Aleyn, 94 ; 3 Bac. Abr. 595 (Gwill. ed.). [So, if the promise be on a good consideration to pay for goods, which had been supplied gratu- itously to another person, such promise would be valid, for it would not be for the debt of another, and consequently not within the statute of frauds. Loomis v. Newhall, 15 Pick. 159, 170.] (t) See Mountstephen a. Lakeman, L. R. 5 Q. B. 613 ; per Cur. Hargreaves v. Parsons, 13 M. & W. 561, 570 ; and see Reader v. Kingham, 13 C. B. N. S. 344. (u) Eastwood w. Kenyon, 11 A. & E. 438 ; [Flemm v. Whitmore, 23 Miss. (2 Jones) 430; Colt v. Root, 17 Mass. 229 ; Weld v. Nichols, 17 Pick. 538; Wilde J. in Preble v. Baldwin, 6 Cush. 552, 553 ; Alger v. Scoville, 1 Gray, 391 ; Barker v. Bucklin, 2 Denio, 45 ; Hardesty v. Jones, 10 Gill & J. 404 ; Pratt v. Humphrey, 22 Conn. 307 ; Westfall o. Parsons, 16 Barb. 645; Fiske o. McGregor, 34 N. H. 418. This, as was remarked by Parker C. J. in Colt v. Root, 17 Mass. 236, " is, in principle, like the case of a debtor giving money to another to pay his debt, and he neglecting to do it." In Alger" v. Scoville, supra, Alger agreed by a verbal contract to transfer to Scoville his stock (being the greater part of the whole stock) in a manufacturing corpo- ration ; and a note held by him of the corporation ; and Scoville agreed to con- vey to Alger a certain farm, and to take Alger's interest in the corporation, and to indemnify him against his in- dorsements on the outstanding notes of the corporation, and Alger accordingly transferred his stock and note to Scoville, and received from Scoville a conveyance of the farm. Shaw C. J. said: "The court are of opinion, that the promise " [of Scoville to indemnify Alger against the payment of the outstanding notes] " is in no sense in which those terms are used in the statute of frauds, a promise to pay the debt of another, but it is a 760 SUBJECT-MATTER OF CONTRACTS. And it appears that a promise by a surety to a third person to indemnify him if lie also will become surety for the principal, is not within the statute. (:r) Under the statute of fraud", the consideration must appear on the face of the mem- orandum. 3d. Before the passing of the statute 19 & 20 Vict. c. 97, it was fully settled that, to render a memoran- dum or agreement in writing valid under the 4th sec- tion of the statute of frauds, the consideration for the promise must appear on the face of the instrument, promise to the plaintiff, on a consideration moving from the plaintiff to the defendant, to indemnify the plaintiff against a con- tingent liability, which he is under as ' indut'oer, to certain banks, to pay certain notes given by the Dutchess County Iron Company, as promisors, if they should fail to pay them at maturity. The iron company were not then indebted to the plaintiff, nor would they become indebted to him, until the happening of the contin- gency of their not paying the notes, and his being called on to pay them. There being no debt due to the plaintiff from the iron company, or anybody else, on ac- count of those notes, the promise of the defendant was not a suretyship or guar- anty, or responsibility to the plaintiff for any debt or duty due to him, but a mere contract of indemnity against a. possible liability. Suppose, instead of a contingent liability, it had been an absolute one, a debt due from himself to a third person ; a promise to him made by a third person, on a valuable consideration moving from him, to pay that debt and save the plain- tiff harmless, is not a promise to pay the debt of another, but a promise to pay the plaintiff's own debt, which is equivalent to a promise to pay the money to him, by which he himself could discharge the debt. The promise of the defendant to the plaintiff was, that he should not be called on as indorser to pay the notes, and to save him harmless from such call ; and the promise was broken, and the cause of action accrued, when the defendant failed to take up the notes of the company, as they fell due, and permitted the plaintiff to be called on, and compelled to pay them." See, also, Aldrich v. Ames, 9 Gray, 76 ; Apgar v. Hiler, 4 Zabr. (N. J.) 812.] (x) Thomas o. Cook, 8 B. & C. 728 ; and see Batson v. King, 4 H. & N. 739. But see per Cur. Green v. Cresswell, 10 A. & E. 453, 458 ; [Jones v. Shorter, 1 Geo. 294 ; Chapin v. Merrill, 4 Wend. 659. Where the defendant verbally re- quested the plaintiff to assist the defend- ant's son in his business, promising to indemnify him against any loss he might incur by so doing, and the plaintiff ac- cordingly signed a note as surety with his son as principal, which he afterwards paid, and called upon the defendant for indemnity, it was held, that the defend- ant's promise was not within the statute of frauds. Chapin v. Lapham, 20 Pick. 467. See, also, Blake a. Cole, 22 Pick. 97 ; Ward v. Fryer, 19 Wend. 494 ; Webb v. Pond, 19 Wend. 423 ; Brown v. Adams, 1 Stewart, 51 ; Hassinger i>. Solnes, 5 Serg. & R. 9 ; Parr v. Northey, 17 Maine, 113; Holmes v. Knights, 10 N. H. 175. Notice to the defendant in such case, that the plaintiff had incurred the debt on the defendant's responsibility, was held to be sufficient, without a subsequent notice that he had paid the note. Chapin v. Lapham, 20 Pick. 467. If one procure another to become his surety, and subse- quently procure a third person to sign a. promise to indemnify the first surety, there being no new consideration, and this not being done in consideration of any contract made at the time of the original contract, the contract of indem- nity is void for want of consideration. Eix v. Adams, 9 Vt. 233.] GUARANTIES AND INDEMNITIES. 761 either in express words, or by necessary implication, and that the omission could not be supplied by parol evidence, (y) The reason of this doctrine was, that the term agreement used in the statute, was held to include both the consideration for the prom- ise, and the promise itself; and it appears to have been estab- lished, independently of the common law rule, that parol testimony is not admissible to supply defects in, or to add to a written agree- ment, — with a view to give full effect to the object of the act, namely, the prevention of fraud and perjury ; it being considered that the admission of parol evidence, to show the consideration for the contract, would induce the mischief which the statute was meant to obviate, (j/ 1 ) It was also held that a guaranty, to be good, must be so framed as to enable the court to fix upon the consideration, not as a matter of conjecture, but as a matter of certainty. ( z) But if the consideration could be fairly and without ambiguity collected or inferred from the memorandum, that was sufficient to satisfy the act. (a) So it was held to be sufficient, if the consideration could be col- lected from the written correspondence between the parties, though it could not be collected merely from the defendant's memorandum ; provided the memorandum referred to, or could, without the aid of parol evidence, be connected with such correspondence, or with some instrument which contained the whole contract. (5) And so a sufficient guaranty might be proved, even by letters (y) Price «. Richardson, 15 M. & W. 300; Powers v. Fowler, 4 E. & B. 511, 539, 540 ; Raikes v. Todd, 8 A. & E. 846 ; 516; [Rogers v. Kneeland, 10 Wend. Bentham v. Cooper, 5 M. & W. 621; 518; Marquand v. Hipper, 12 Wend. Wain v. Warlters, 5 East, 10 ; Saunders 520 ; Waterbury v. Graham, 4 Sandf. v. Wakefield, 4 B. & Aid. 595; Jenkins 215; Laing v. Lee, 1 Spencer, 337.] v. Reynolds, 3 B. & B. 14 ; Morley v. (b) See Coldham v. Showier, 3 C. B. Boothby, 3 Bing. 107, 112, 113. [See 312; Emmet u. Kearns, 7 Scott, 687; ante, 91, 92.] ' Redhead o. Cator, 1 Stark. 14, 19; Stead (y 1 ) [But see Cummings v. Dennett, v. Liddard, 1 Bing. 126 ; Sandilands v. 26 Maine, 397 ; Little v. Nabb, 10 Missou. Marsh, 2 B. & Aid. 680; Coe v. Duffield, 3 ; Gillighan v. Boardman, 29 Maine, 7 Moore, 252 ; Jackson v. Lowe, lb. 219 ; 79.] Hemming a. Perry, 2 M. & P. 375 ; Hare (z) Per Patterson J. James v. Williams, v. Rickards, 7 Bing. 254 ; [Bailey v. Free- 5 B. & Ad. 1109, 1112 ; Hawes v. Arm- man, 11 John. 221 ; Douglas v. Howland, strong, 1 Scott, 661, 668; Ellis v. Levy, 1 24 Wend. 36; Lecat u. Tavel, 3 McCord, Scott, 669, n. (a); per Denman O.J. 158; Leonard o. Vredenburgh, 8 John. Raikes v. Todd, 8 A. & E. 846, 856 ; 37 ; Union Bank of Louisiana v. Coster, Langt). Nevill, Q. B. 6 Jur. 217. 3 Comst. 203; Rabaud v. De Wolf, 1 (a) See Bainbridge v. Wade, 16 Q. B. Peters (U. S.), 449.] 88, 98, 99 ; Caballero v. Slater, 14 C. B, 762 SUBJECT-MATTER OF CONTRACTS. written by the defendant, not to the plaintiff, hut to a third party, (c) But these decisions are now of little importance ; for, by the statute 19 & 20 Vict. c. 97, s. 3, it is enacted : that Stat. 19 & 20 Vict. c. 97, no special promise to be made by any person after the passing of that act, (cT) to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the considera- tion for such promise does not appear in writing, or by necessary inference from a written document. (d x ~) But although, since this statute, parol evidence may be given to supply the consideration, such evidence, cannot be given to explain the'promise ; and, therefore, unless the whole promise be in writ- ing, the memorandum will not be sufficient, (e) Lastly : the guaranty, to be good, must be " signed by the party to be charged therewith," or by his agent, (e 1 } But Signature of 6 ' i . i memoran- where the defendant wrote and signed a guaranty which contained a mistake ; and, on the mistake being discovered, he wrote a memorandum across the original guaranty, correcting such mistake, but did not sign this memorandum ; it was held, that his original signature was a signature of the whole, and so satisfied the statute. (/) 3. Let us now consider the extent to which the surety is liable. To what ex- And on this subject the leading principles are as follow, ^""liable"" If a person be surety for the fidelity of another in an Time for office of limited duration, or the appointment to which is which he is only for a limited period, he is not obliged beyond that period. (. Dennis, E., B. & E. 660. GUARANTIES AND INDEMNITIES. 765 his surety wa s at an end. (7) So if the rates, &c, collected, be not such as are authorized by the act, the surety is not liable ; (m) nor is he liable where, owing to an error in the appointment of the principal, the latter was not duly authorized, under the act, to col- lect the sums which he is charged with having received, (w) So, if the surety's engagement relate to a particular office, it ex- tends only to such things as were included in the office , . ._ when the engagement was entered into. Thus, a per- faults of 11 c n i i principal, for son who became surety for a collector of the customs which surety revenue, upon his appointment in 1691, was held not liable in respect of the custom on coals, which was first imposed in 1698. (o) And in like manner it has been held, that in construing an agreement in the form of a bond, by which a surety became liable for the due fulfilment of an agent's duties, therein particularly (I) Mailing Union v. Graham, L. Kep. 5 C. P. 201. (m) Nares v. Bowles, 14 East, 510. As to pleading this defence, see Webb v. James, 7 M. & W. 279. (n) Keep v. Wiggett, 10 C. B. 35. But a surety for the treasurer of the guardians of a poor-law union, has been held liable for a balance of rates in the treasurer's reduced. But it was said in this case that the surety had the right to surrender the principal and discharge himself from the bond. But in Miller v. Stewart, 9 Wheat. 680, Mr. Justice Story said that it matters not, " that the surety may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms hands, due to the guardians ; although it of his contract ; and if he does not assent appeared that all the rates had not been to any variation of it and a variation be paid to him in money; but that he had made, it is fatal." And in Boston Hat received corn from the overseers of some of the townships of the union, for which he had given them credit in account. Pat- tison v. Guardians of Belford Union (in Cam. Scac), 1H.&N. 523. (o) Bartlett v. Attorney-general, Par- ker, 277 ; Bowdage o. Attorney-general, lb. note (a) ; amd see Pybus v. Gibb, 6 E. & B. 902 ; Bonar v. McDonald, 3 H. L. C. 226 ; Leigh v. Taylor, 7 B. & C. 491 ; Grocers' Bank v. Kingman, 16 Gray, 473. [There are some cases, in which this prin- ciple seems not to have been fully sus- tained. Thus, in Reed v. Fullum, 2 Pick. 158, a. surety in a bond for the debtor's liberties, was held liable, though the ex- tent of those liberties was reduced after the bond was given, and the debtor did not go beyond the bounds established when the bond was given, but did go beyond those to which the liberties were afterwards Manuf. Co. u. Messinger, 2 Pick. 235, 236, it was taken as a principle " clearly settled by the authorities, that the contract of a surety cannot be varied without his con- sent, and that any new terms important in their nature, imposed upon the principal, or consented to by him, will avoid the ob- ligation as to any act done after such alteration." See, also, United States o. Kirkpatrick, 9 Wheat. 720 ; United States v. Tillotson, 1 Paine C. C. 305 ; Chute v. Pattee, 37 Maine, 102 ; Wright v. Johnson, 8 Wend. 512 ; United States v. Hillegas, 3 Wash. C. C. 70 ; Postmaster- general v. Keeder, i lb. 678; Brigham v. Wentworth, 11 Cush. 123; Owen v. Homan, 3 Mac. & G. (Am. ed.), 400, and note (1 ) and cases cited ; Watriss v. Pierce, 32 N. H. 560 ; Smith v. Day, 23 Vt. 656 ; Grocers' Bank v. Kingman, 16 Gray, 473, 475.] 766 SUBJECT-MATTER OF CONTRACTS. enumerated, a general clause in the obligatory part of the bond must be controlled by reference to the prior clauses, specifying the extent of the agency, (p) So, if the guaranty relate to the performance of a particular con- tract, the surety is only liable for such damages as are occasioned, strictly, by the failure of the principal to perform that contract, (q) But the principal must perform the contract strictly, otherwise the surety will be liable, (r) And where the principal is charged, as bailee, with having re- ceived a specific sum of money, which he ought to have paid over within a certain time, but which he did not pay over ; the surety will not be liable, if it appear that the principal lost the money by robbery, without any default of his own. (s) If a person engage as surety for a particular individual, e. g. to Surety to or ^e account able for moneys received by him ; the engage- for one per- ment is understood to extend to the receipts of that in- son, not i • . i . n liable to or dividual alone ; and not to those of himself and a part- for partner. . ner. (t) If a person engage as surety to a particular individual, the en- gagement is understood to be to that individual only, and it ceases if he take a partner who is interested, (u) And a surety " to A." for the fidelity of a clerk, is not liable in respect of a breach of trust, upon an employment of the clerk by A.'s executors. (x) Rule where Before the statute 19 & 20 Vict. c. 97, it appears to the guaranty nave been held that, when the security is given to a 13 to OX JOT a. J ° firm - house, e. g. to a banking-house, and not to the members (p) Napier v. Bruce, 8 C. & F. 470. But (r) See London, Brighton & South where the surety's engagement related to Coast Railway Company v. Goodwin, 3 th« aontinuance of one G. in the office of Exch. 736. "clerk" to a banker, and the defence was, (s) Walker v. British Guaranty Asso- that he had been appointed "manager," ciation, 18 Q. B. 277 ; 21 L. J. Q. B. 257. the plea was held bad, because it did not (t) Mills v. Guardians of Alderbury show that G. ceased to be clerk when he Union, 3 Exch. 590 ; 18 L. J. Exch. 252 ; became manager. Anderson v. Thornton, Montefiore v. Lloyd, 15 C. B. N. S. 2Q3 ; 3 Q. B. 271 ; and see Skillett v. Fletcher, Bellairs v. Ebsworth, 3 Camp. 52. L. Rep. 1 C. P. 217; S. C. (in Cam. (u) Wright v. Russell, 3 Wils. 530; S. Scac), L. Rep. 2 C. P. 469. As to what C. 2 Bl. 934. [A guaranty addressed to acts are within the scope of the duties of a one cannot be used as evidence in an action banker's clerk, see Melville v. Doidge, 6 brought upon it by two. Allison v. Rut- C. B. 450 ; S. C. 18 L. J. C. P. 7. ledge, 5 Yerger, 193 ; ante, 741, note (y).] (?) Warre v. Calvert, 7 A. & E. 143. (x) Barker v. Parker, 1 T. R. 287. GUARANTIES AND INDEMNITIES. 767 of the firm by name, the surety would still continue liable, not- withstanding a change of partners, (y) So it was held that, if a person become bound as surety for more persons than one, the engagement must be understood to be on be- half of those individuals collectively and jointly ; and that, in case of the death of any of them, it would not continue on behalf of the survivors, (s) unless, perhaps, where the parties were described as a class, and not by name, (a) So it was held, that where the guar- anty was given for several partners, "and the survivors or sur- vivor of them," the surety would not be bound in the event of one partner retiring from the firm. (6) So, where a person engaged as surety to several'mdividxi&h, the rule was, that the liability was to all of them collectively and jointly, (6 1 ) unless it appeared on the face of the instrument that they had sep- arate interests in the subject-matter ; (c) and that if any of them died, it would not be available in respect of transactions by the sur- vivors, (d) So, if a guaranty were given to a partnership, and one of the partners retired ; it was held, that the surety was not liable in re- spect of goods supplied to the principal by the continuing part- ners, (e) And now, by the statute 19 & 20 Vict. c. 97, s. 4, it is enacted, that no promise to answer for the debt, default, or mis- X9 & 20 Vict carriage of another, made to a firm consisting of two or ° - 97 ' s ' 4 " more persons, or to a single person trading under the name of a firm ; and no promise to answer for the debt, default, or miscar- riage of a firm consisting of two or more persons, or of a single per- son trading under the name of a firm, shall be binding on the person (y) Barclay v. Lucas, 3 Doug. 321 ; 1 (z) Simson v. Cooke, 1 Bing. 452. T. B. 291, n. (a); 2 Wms. Sannd. 414 a, (a) Per Bayley J. Kipling v. Turner, 5 note (5); and see Metcalf v. Bruin, 12 B. & Aid. 261, 263. East, 400; and per Cur. Chapman v. (b) University of Cambridge v. Bald- Beekington, 3 Q. B. 703, 722. Barclay win, 5 M. & W. 580. [See Cremer o. v. Lucas has been doubted ; see 1 N. B. Higginson, 1 Mason, 323.] 42 ; 4 Taunt. 681. But it gives the true (ft 1 ) [See Pennoyer v. "Watson, 16 John, principle, viz., that if the words show an 100 ; Smith v. Montgomery, 3 Texas, 199.] intention that the security should continue, (c) Place v. Delegal, 6 Scott, 249. notwithstanding the accession of a new (d) Chapman v. Beckington, 3 Q. B. partner, the surety shall be liable. If a 703 ; Weston v. Barton, 4 Taunt. 673 ; note be given to a firm " or order " as a Strange v. Lee, 3 East, 484 ; Myers v. security, it is a security for advances made Edge, 7 T. B. 354. Aliter in the case of after a change in the firm. Pease v. Hurst, a bond to the trustees of a company. Met- 10 B. & C. 122; see Roe d. Durant v. calf v. Bruin, 12 East, 399. Moore, 6 Bing. 656. (e) Dry v. Davy, 10 A. & E. 30. 768 SUBJECT-MATTER OF CONTRACTS. making such promise in respect of anything done or omitted to be done, after a change shall have taken place in any one or more of the persons constituting the firm, or in the persons trading under the name of a firm, unless the intention of the parties, that such promise shall continue to be binding notwithstanding such change, shall appear either by express stipulation, or by necessary implica- tion from the nature of the firm or otherwise. (/) If a guaranty be given to certain persons, as the representatives of a society which at the time was a voluntary one, it will not con- tinue after the incorporation of the society. (#) But where a guaranty was given to the " M. & H." banking company ; and afterwards, on the accession of some new proprie- tors, the name of the company was changed to the " W. R. U." banking company : it was held, that the public officer of the latter company might sue on such guaranty, the change of name, so long as the bank consisted of the same body, being immaterial. (Ji) And a guaranty by two persons in the following form : " We un- . , dertake and guaranty that the sum of 400Z. and interest Guaranty by . two or more shall be duly paid to you," at a time named, "in the proportion of 200/. each ; " has been held to impose only a several liability on each, to the extent of 200Z. (i) A party who guaranties the due payment of a bill of exchange by the acceptor, is liable for interest thereon if it be not Amount f or . , , , , . N . , , • • j> ■which surety paid when due. (j) And where a guaranty is given tor the payment of a promissory note, if it be not " duly honored and paid : ' by the maker, according to its tenor and effect; the guarantor is liable, if the note be not paid by the maker when due, without any presentment to him for that purpose. (Je) Where a guaranty was given to D., to secure payment of the price of goods which were to be supplied by him to M. : it was held that the surety was liable for a sum of money which M. had pro- cured from D., to enable him, M., to take up a bill 'which he had given to D. in the usual course of business, in payment for goods (/) This section seems to be merely win, 3 Exch. 320 ; Eastern Union Railway declaratory of the common law. Back- Company v. Cochrane, 9 Exch. 197. house v. Hall, 6 B. & S. 507. (/) Fell v. Goslin, 7 Exch. 185. () Simpson v. Manning, 2 C. & J. 12, (c) Nicholson v. Paget, 1 C. & M. 48. 13, note. 772 subjp:gt-matter of contracts. So the following guaranty : " I hereby guaranty B.'s account with A. for wines and spirits to the amount of 100L," — there be- ing at the time an existing account between A. & B., upon which B. was indebted to A., though in less than 100?., — was held to be a guaranty for the payment of such, existing account, and not to extend to future supplies of goods. (. Warren, 10 John. 587 ; Comeygs v. Booth, 3 Stewart, 14; Walrath u. Thompson, 6 Hill, 540; Birckhead u. Brown, 5 Hill, 534 ; S. C. 2 Denio, 375 ; Dobbin v. Bradley, 17 Wend. 422 ; Ludlow v. Simond, 2 Caines Cas. Error, 30 ; Walsh v. Bailie, 10 John. 180.] (z) Clarke v. Green, 3 Exch. 619. (a) Pidcock ». Bishop, 3 B. & C. 605. [See Sandclift v. Allen, 14 Vt. 258 ; Noyes v. Nichols, 28 Vt. 176, 177.] (b) Jackson v. Duchaire, 3 T. B. 551. GUARANTIES AND INDEMNITIES. 777 And this doctrine seems to hold, although the new terms, thus substituted, vary only in a slight degree from those of the original agreement. Thus, where the defendant gave a promissory note, as surety, for a floating balance due to a banker from a customer ; he was held to be relieved, by the banker crediting the customer with the full amount of the iiote, without advancing the money at the time, (e) So, where A., as surety for B., gave to C. a promissory note, upon an agreement that C. should advance the amount to B. by draft at three months' date ; and C. made the advance immedi- ately, and not by draft at three months ; it was held that the surety was released, (d) And so, an agreement to guaranty the price of goods to be sold on a credit of twelve months, does not apply to a sale on a credit for a less period, (e) But a guaranty in this form : " If you will give credit to A. B., I will be responsi- ble that his payments shall be regularly made," — means a fair and reasonable credit, according to the mode of dealing between the parties ; and is not confined to a dealing according to the strict customary credit of the trade. (/) So if the guaranty be for a loan, (#) or for the saje of goods, (A), the transactions with the principal must be strictly of that nature. But it is said that, although the liability of the surety be limited to a certain sum, the creditor does not prejudice his remedy against the surety to that extent, by trusting the principal to a larger amount. And the case of Whitcher v. Hall («') well illustrates the rule which we are now considering. It there appeared that, by a spe- cial agreement between the plaintiff of the one part, and Joseph Hall as principal, and the defendant as his surety, of the other part, (c) Archer v. Hudson, 7 Beav. 551. such guaranty. Hall v. Hadley, 5 Bing. (d) Bouseru. Cox, 6 Beav. 110; S. C. 64. i Beav. 379. (/) Simpson v. Manley, 2 C. & J. 12. (e) Bacon v. Chesney, 1 Stark. 192; [See Louisville Manuf. Co. u. Welch, 10 [Walrath v. Thompson, 6 Hill, 540 ; S. C. How. (TJ. S.) 461.] Where no time is 2 Comst. 225.] On a guaranty for six fixed by the guaranty, the usual credit months' credit, a sale at three months, must be given ; per Tindal C. J. Coombe and then a bill at three months is pro- v. Woolf, 8 Bing. 156, 161. tected. Simmons v. Keating, 2 Stark. (g) Glyn v. Hertel, 8 Taunt. 208. 426. A guaranty was given for coals, at (h) Evans v. Whyle, 5 Bing. 485 ; S. C. two months' credit from delivery ; and M. & M. 468. sales at daily intervals, on the terms of (t) 5 B. & C. 269, Littledale J. dissen- giving, at the end of each month, a bill at tiente; Bowmaker v. Moore, 3 Price, 214; a month for the coals delivered in the pre- 7 Price, 223 ; Archer v. Hale, 4 Bing. vious month, were held not to be within 464. 778 SUBJECT-MATTER OP CONTRACTS. the plaintiff was to let, and Joseph Hall to take, the milking of thirty cows, at a certain rent per cow, from the 14th of February following ; and the plaintiff averred performance of this agree- ment. The evidence was that, on the 14th of February, Joseph Hall took possession of the dairy of thirty cows, only ten of which were fit for milking ; that, at Lady-day, the plaintiff put two more milking cows into the dairy, making thirty-two ; and that subse- quently the plaintiff and Joseph Hall exchanged cows from time to time, the plaintiff putting in those which were fit for milking, and taking out others which were not. In May, Joseph Hall had thirty-two cows, and he agreed that the plaintiff, instead of taking out two at that time, should be at liberty to take out four at the fall of the year. Accordingly, between the 4th and the 20th of Octo- ber, the plaintiff did take away four cows, thereby leaving Joseph Hall, in the interim, less than thirty ; and it was held, that the plaintiff had discharged the defendant by such new agreement. But there is an old case in which it is reported to have been decided, that if there be a guaranty for the price of goods, " for a certain sum to be paid at a future day ; " and the goods be sold to the principal, on the terms that part be paid down and the residue at a future day, the guaranty is good for the residue, although by the bargain all the money was to be paid at a future day. (_?') So if, by the guaranty, the course of dealing between the creditor and the principal be- left to the option of the former, either entirely or within certain limits, the variation of such course of dealing, either entirely or within those limits, will not discharge the sure- ty.(*0 And where the guaranty is for the performance of two distinct matters, there may be an alteration of the principal contract as to one of them, without affecting the liability of the surety as to the other. (7) Again : if, whilst the. instrument of guaranty is in the hands of ,. . the party to whom it was given, it be altered in any mate- terms of rial particular, without the knowledge or consent of the guaranty. . ... . ., surety, it will becoriie void, and the surety will be dis- charged, (to) (j) Turner v. Phillips, H. T. 43 Eliz. (k) Stewart v. M'Kean, 10 Excli. 675. B. R. 1 Roll. Abr. 20, pi. 14. Sed qucere, (I) Harrison u. Seymour, L. R. 1 C. for here the vendee had not all the indul- P. 518. gence contemplated by the surety. [See (m) Davidsons. Cooper, 13 M. & W. Walrath v. Thompson, 2 Comst. 225.] 343 ; S. C. 11 M. & W. 778. GUARANTIES AND INDEMNITIES. 779 But it is clear that mere gratuitous forbearance by the creditor, without any binding agreement to refrain from taking Mei , e ratui _ •proceeding's, cannot exonerate the surety at law or in tous forbear- „_,„*+„ /■ i\ n i • . . 11.., anoo will not equity , (in*) tor Ins situation, and his right in equity, discharge the even before he is actually damnified, to compel the pri'n- surety ; cipal to exonerate him, are not thereby prejudiced. («) And the ((ft 1 ) [See Alcock v. Hill, 4 Leigh, 622 ; Johnson v. Thompson, 4 Watts, 446 ; Hall v. Constant, 2 Hall, 185 ; United States v. Simpson, 3 Penn. 439 ; Reynolds v. Ward, 5 Wend. 501. The doctrine, that a mere delay to site the principal does not dis- charge a surety, is recognized in the follow- ing cases : Locke v. United States, 3 Ma- son, 446 ; Oxford Bank v. Lewis, 8 Pick. 458; Blackstone Bank v. Hill, 10 Pick. 129 ; Pullam v. Valentine, 11 Pick. 156 ; United States v. Kirkpatrick, 9 Wheat. 737 ; Dox v. Postmaster-general, 1 Peters (U.S.), 326; Buchanan o. Bordley, 4 Har. & M'Hen. 41 ; Hunt v. United States, 1 Gal. 32 ; Burn v. Poany, 3 Desaus. 604 ; Dehuff v. Turbett, 3 Yeates, 457 ; Thurs- day v. Gray, 4 Yeates, 518 ; Cope v. Smith, 8 Serg. & R. 110 ; Commonwealth v. Wol- bert, 6 Binn. 292 ; Pulton v. Matthews, 15 John. 433; Powell v. Waters, 17 John. 176; People v. Russell, 4 Wend. 570; Townsend v. Riddle, 2 N. H. 448 ; Lenox v. Prout, 3 Wheat. 524 ; M'Kenney v. Waller, 1 Leigh, 434 ; Wayne v. Kirby, 2 Bailey, 551 ; Treasurers v. Johnson, 4 McCord, 458 ; Shnbrick v. Russell, 1 De- saus. 315 ; Braman v. Howk, 1 Blackf. 393 ; Strafford Bank v. Crosby, 8 Greenl. 191 ; Hogew. Penn, 1 Bland, 30 ; Kennebec Bank v. Tuckerman, 5 Greenl. 130; Gahn v. Neincewiez, 11 Wend. 317,318; Rey- nolds v. Ward, 5 Wend. 501 ; Clagget v. Salmon, 5 Gill & J. 314 ; Stout v. Ashton, 5 Monroe, 252 ; Norris v. Crumney, 2 Rand. 323 ; Freemans' Bank v. Rollins, 13 Maine, 202 ; Sibley v. M'Allister, 8 N. H. 389; Sprigg v. Bank of Mt. Pleasant, 14 Peters, 204 ; Huntress v. Patten, 20 Maine, 28. As to the effect of a request by the surety to proceed against the principal, followed by delay on the part of the cred- itor, and the insolvency of the principal, see Crane v. Newhall, 2 Pick. (2d ed.) 614, n. (1), and cases there cited ; Andrews v. Bealls, 9 Cowen, 693 ; Prye v. Barker, 4 Pick. 382; Bellows v. Lovell, 5 Pick. 307 ; Pickett v. Laud, 2 Bailey, 608 ; Moore v. Broussard .20 Martin (Louis.), 277 ; Davis v, Huggins, 3 N. H. 231 ; Manning v. Shotwel), 2 South. 585 ; Treasurers v. Johnson, 4 McCord, 458 ; Warner v. Beardsley, 8 Wend. 194 ; De Huff v. Tur- bett, 3 Yeates, 157 ; Erie Bank v. Gibson, 1 Watts, 143; Paine v. Packard, 13 John. 174 ; Kingw. Baldwin, 17 John. 403 ; Man- chester v. Sweeting, 10 Wend. 162; Han- cock v. Bryant, 2 Yerger, 476 ; Valentine v. Parrington, 3 Cowen, 53 ; State v. Rey- nolds, 3 Miss. 95 ; Strader v. Houghton, 9 Porter, 334 ; Goodman c. Griffin, 3 Stewart, 100 ; Heaton v. Hurlbert, 3 Scam. 491 ; Taylor v. Beck, 13 111. 376. It has been held, in some cases, that if the surety requests the creditor to proceed against the principal debtor, the principal debtor at the time being solvent but afterwards be- coming insolvent, so that the surety will be injured by the delay, the surety will be discharged to the extent he is injured. See per Curiam, Row v. Culver, 1 Cowen, 246, 247; King c. Baldwin, 17 John. 384; State v. Reynolds, 3 Miss. 95 ; Herrick v. Borst, 4 Hill, 650; Pain v. Packard, 13 John. 174 ; Huffman v. Hurlbert, 13 Wend. 377 ; Manchester Iron Manuf. Co. v. Sweeting, 10 Wend. 162 ; Merritt v. Lin- coln, 21 Barb. 249; Weiler o. Hoek, 25 Penn. St. 525.] (n) Per Jervis C- J- Strong v. Poster, 17 C. B. 201, 215 ; p\;r Best, C. J. Philpot v. Briant, 1 M. & P. 754 ; Eyre v. Everett, 2 Russ. 381 ; Heath v. Key, 1 Y. & J. 434 ; Orme v. Young, Holt N. P. C. 84 ; Clarke v. Wilson, 3 M. & W. 208. 780 SUBJECT-MATTER OF CONTRACTS. simply taking a new security from the debtor, expressly as a further security only, without agreeing to give him time, does not affect the remedy against the surety, (o) Nor does the neglect of the creditor, to examine into the accounts of the debtor, respecting which the guaranty was given, discharge the surety at law, although an additional loss was, perhaps, occasioned by such neglect. (|>) Nor was the surety discharged, by the creditor signing th.e certificate of the principal under a commission of bankruptcy against him, al- though the surety required the creditor to refrain from signing it ; (y) or by the fact of the principal becoming insolvent, and omit- ting to insert the debt in his schedule, (r) . And it has been held, in equity, that if a security be taken which, by postponing the* time of payment, would operate to release the surety, the creditor may prove by parol evidence, that an agree- ment was come to between the parties that the transaction should not have that operation, (s) Nor, will the mere laches of the creditor, in not calling on the principal so soon as he was entitled to do so, discharge the surety. Thus, in Goring v. Edmonds, (t) the facts were, that the defendant (o) Bell v. Banks, 3 M. & G. 258 ; 3 (j) Brown v. Carr, 7 Bing. 508 ; S. C. Scott N. E. 497 ; Twopenny a. Young, 3 , 2 Russ. 600; Langdale v. Parry, 2 D. & B. & C. 208 ; Ernes v. Widdowson, 4 C. & R. 3.37. [A discharge of the principal as a bankrupt does not release his surety. Moore u. Walker, 1 A. K. Marsh. 489. Sureties to a bond for the payment of money, who have been fully indemnified P. 151 ; [Green v. Warrington, 1 Desaus. 431 ; Sigourney v. Wetherell, 6 Met. 553 ; Shubrick v. Russell, 1 Desaus. 315; Nor- ton v. Eastman, 4 Greenl. 521 . The mere receipt of interest for a stipulated time in for their responsibility, cannot avail them- advance from the principal by the creditor, after the note has become payable, is not sufficient evidence of an agreement to give further credit. Freeman's Bank v. Rollins, 13 Maine, 202 ; Crosby u . Wyatt, 23 Maine, 157; Central Bank v. Willard, 17 Pick. 150; Oxford Bank v. Lewis, 8 Pick. 458; Blackstone Bank v. Hill, 10 Pick. 129. But see Crosby v. Wyatt, 10 N. H. 318, and N. H. Savings Bank u. Colcord, 15 N. H. 119. But the agreement by the principal to pay interest on such note for a specified time after ittfbecame .due, is a, sufficient consideration for a promise of delay. Chute v. Pattee, 37 Maine, 102.] (p) Trent Navigation Company v. Har- ley, 10 East, 34 ; London Assurance Com- pany v. Buckle, 4 Moore, 1 53 ; Nares v. Rowles, 14 East, 514. selves of an insolvent discharge granted to their principal, although such discharge was obtained by the concurrence of the creditor, and without such concurrence would not have been granted. Moore v. Paine, 12 Wend. 123. Aliter, it seems, if the sureties are not indemnified. lb.} (r) Allard v. Kimberley, 12 M. & W. 411. The surety of the grantor of an an- nuity, who was discharged under the in- solvent debtors' act, was not thereby released; Hocken v. Brown, 1 Scott, 194; Cowley v. Bussell, 4 Taunt. 460 ; and see Abbott v. Bruere, 7 Scott, 753. (s) Per Lord Chancellor, Wyke v. Rog- ers, 21 L. J. C. 611, 613. (t) 6 Bing. 94. As to the effect of tak- ing a bill from the principal, and being guilty of laches thereon, see Warrington GUARANTIES' AND INDEMNITIES. 781 guarantied the payment of the price of goods sold to his son. The plaintiff received part of the price, and afterwards made repeated applications for the residue. More than two years having elapsed from the time when the price should have been paid, the son gave the plaintiff a bill on- a third person, which was dishonored ; and soon afterwards the son became bankrupt. The bill did not appear to have been given bond fide, as the acceptor was not a man of sub- stance, nor was it shown that he was indebted to the drawer at the time. The plaintiff gave no notice to the defendant that he had taken the bill, or that it was dishonored, or of the state of the ac- count with the son, or of the applications to him ; but it was held, that neither the lapse of time nor the want of notice of these facts, had discharged the defendant from his liability as surety. But if the creditor give time to the principal, — that is, if by a new and valid contract between the creditor and the prin- b t abmdi cipal to which the surety does not assent, the period be agreement to -, , i • i i ' i i S ive time to extended at which, by the contract between them, the the principal principal was originally liable to pay the creditor, (u) — the surety is clearly, as a general rule, freed from responsibility at law and in equity, (x) Thus, in Combe v. Woolfe, (jj~) it appeared v. Purber, 8 East, 242 ; Phillips v. Astling, 2 Taunt. 206; Murray v. King, 5 B. & Aid. 165 ; Holbrow v. Wilkins, 1 B. & C. 10 ; Van Wart v, Woolley, 3 B. & C. 439. (u) Per Cur. Howell v. Jones, 1 Cr., M. & R. 97, 107. (x) Per Tindal C. J. Bell v. Banks, 3 Scott N. R. 497, 503 ; Nisbet v. Smith, 2 Bro. C. C. 579 ; Burke's case, cited in Ex parte Gifford, 6 Ves. jun. 509 ; Rees v. Berrington, 2 Ves. jun. 542 ; Lewis v. Jones, 4 B. & C. 515, note. In Boultbee v. Stubbs, 18 Ves. 20, a joint bond was given by the principal and surety. The creditor took a mortgage for part, and a warrant of attorney, payable by instal- ments, for the residue. The chancellor held, that the surety was discharged, al- though the mortgage and warrant of at- torney were taken expressly without preju- dice to any securities held by the creditors. See note, Moltby v. Carstairs, 1 M. & R. 562; [N. H. Savings Bank v. Colcord, 15 N. H. 119 ; Mariners' Bank v. Abbott, 28 Maine, 285 ; Gifford v. Allen, 3 Met. 255 Hutchinson v. Moody, 18 Maine, 393 Butler v. Hamilton, 2 Desaus. 226 ; Lud low v. Simond, 2 Caines Cas. in Error, 1 Hill v. Bull, Gilmer, 146; Jones v. Bullock 2 Bibb, 467; Baird v. Rice, 1 Call, 18 Commonwealth o. Vanderslice, 8 Serg. & R. 452 ; G. Bank v. Woodward, 5 N. H. 99 ; Bank of Steubenville v. Hoge, 6 Ham. 17 ; Sailly v. Gilmore, 2 Paige, 597 ; Ellis v. Bibb, 2 Stew. 63; Farmers' & Mech. Bank v. Cooley, 4 J. J. Marsh. 366 ; Robinson v. Offat, 7 Monroe, 541 ; Norton v. Roberts, 4 Monroe, 492 ; Galphin v. M'Kinney, 1 McCord Ch. 297 ; Hampton v. Levy, 1 McCord Ch. 112 ; King v. Bald- win, 2 John. Ch. 357 ; Neimcewiez t Gahn, 3 Paige, 614; S. C. 11 Wend. 312 Sneed o. White, 3 J. J. Marsh. 526 Claggett v. Salmon, 5 Gill & J. 314 State v. Hammond, 6 Gill & J. 157 Clippinger v. Creps, 12 Watts, 45 . (y) 8 Bing. 156. 782 SUBJECT-MATTER OF CONTRACTS. that the defendant guarantied the payment of the price of porter which was to be delivered to J., the memorandum containing no stipulation as to the term of credit. The custom of the plaintiff was to give six months' credit, and then sometimes to take a bill at two. The plaintiff, without the defendant's knowledge, allowed three months to elapse after the six months, and then took from J. a promissory note, at two months, for the debt, thus virtually giving a credit of eleven months: and the court held, that the defendant, as surety, was exonerated ; upon the ground that his situation was prejudiced by the plaintiff having precluded himself, by taking the note, from proceeding, during its currency, against the princi- pal. (j/ 1 ) So, where there were two co-sureties, and the creditor granted a further loan to the principal, and took a new security for that and the former loan, and gave further time to the principal and one of United States v . Howell, 4 Wash. C. C. 620 ; Inge c. Branch Bank of Mobile, 8 Porter, 108;Greely v. Dow, 2 Met. 176; Solomon v. Gregory, 4 Harrison, 112; Crosby v. Wyatt, 10 N. H. 318; Holmes v. Dale, 1 Clarke, 71 ; Harnsberger v. Geiger, 2 Grattan, 144. And the effect is the same, whether the agreement to give, time is made, before or after the day of payment originally fixed. Stowell o. Goodenow, 31 Maine, 538; Hutchinson v. Moody, 18 Maine, 393; Gifford v. Allen, 3 Met. 255. Courts will not enter into the inquiry, whether the delay has been injurious to the surety. See Miller v, M'Coun, 7 Paige, 452 ; Bangs v. Strong, 7 Hill, 250 ; Comeygsw. Booth, 3 Stewart, 14 ; Eathbun u. Warren, 10 John. 587 ; Hoffman v. Hurlbert, 13 Wend. 377 ; Foll- mer v. Dale, 9 Barr, 83. It was held to be otherwise in the case of a guarantor, in Pollmer v. Dale, 9 Barr, 83. But that there is no difference between a guarantor and a surety in this respect, see Chase v. Brooks, 5 Cash. 50, per Dewey J. But the surety will not be discharged by time being given to the principal, in cases where the right to enlarge the period for per- formance or payment, formed part of the original contract, cither expressly or by implication. See Reddish v. Watson, 5 Ham. 510; Baldwin v. Western Reserve Bank, 5 Ham. 273 ; Dundas v. Sterling, 4 Barr, 73 ; Crosby v. Wyatt, 10 N. H. 318. So the right of the surety to be dis- charged in such case may be affected by the usages and customs of trade, known to him, and relating to the matter. See Strafford Bank u. Crosby, 8 Maine, 121 ; Crosby v. Wyatt, 10 N. H. 318; S. P. 23 Maine, 156; N. Hamp. Savings Bank v. Ela, 11 N. H. 335.] (j 1 ) [The same principle was sustained in Chase o. Brooks, 5 Cush. 43. But where there is a guaranty for the payment of the amount to become due for certain merchandise, the guarantor is not dis- charged by the fact, that the creditor takes from the principal debtor a promissory note which docs not extend the time of credit. Babcock v. Bryant, 12 Pick. 133; Curtis r. Hubbard, 9 Met. 322. Where a guarantor engaged that goods, purchased by the principal debtor, should be paid for on a particular day, and the creditor took a note of the principal debtor for the goods, payable on a previous day, the guarantor was held not liable, although the creditor did not require payment until after the day specified in the guaranty. Walrath v. Thompson, 2 Comst. 225.] GUARANTIES AND INDEMNITIES. 783 the sureties, he was held, by so doing, to have discharged the other, (z) But even a binding agreement, for a good consideration, to give time to the principal, if made by the creditor with a . , . . . . unless it be third person, and not with the principal, will not dis- made with a charge the surety, although it be made without his con- not with the' sent, (a) principah Again : by the rule of the common law, a specialty could not be released or varied by a parol agreement; and it was Surety on therefore held, that in an action upon a bond against a c h^ r gedby surety, it was no defence at law, that time had been given ^ r °J t agr ? e ~ to the principal by an instrument not under seal. (6) time. This, however, was a good ground for relieving the surety in equity, (c) And now, by the 17 & 18 Vict. c. 125, s. 83, it may be pleaded, at law, by way of equitable defence to an action against the surety on the specialty. () and he is also entitled, in equity, to require the creditor to whom he makes the payment, to give him the ben- efit of any security of which he, the creditor, might have availed himself as against the principal debtor. () And, at law, the amount of contribution to which the co-surety is entitled, depends on the number of sureties originally liable, without reference to the number liable at law at the time of the payment. So that, if there be three sureties for a certain sum, and one of them pay the whole, he cannot recover at law more than a third from either of the others, although one of them be dead or insol- vent, (s) But, according to the rule in equity, the surety in the above case would be entitled to recover one half of the entire sum paid by him, from the surviving or solvent co-surety. (£) And it appears that, in case of the death of one of the sureties, the survivor would be entitled at law to maintain an action for con- tribution against his representatives, (w) In addition to the above means of indemnification by the surety, it is now enacted by "the 19 & 20 Vict. c. 97, s. 5 — Right of the which is held to apply to contracts made before the pass- assfcnment 1 ing of the act, provided a breach takes place, and pay- u f I j e f un f t 1 ! es ment has been made thereunder by the surety, since the creditor. Watson, 14 Barb. 486. Where one of but one surety. Chaffee v. Jones, 19 Pick, two sureties gives collateral security for 260.] the payment of the debt, for which he {t) Peter v. Rich, 1 Ch. Ca. 19, 34; is surety, his co-surety does not, by pay- Holl v. Harrison, lb. 246 ; Layer v. Nelson, ing that debt, become entitled to the Vern. 456. [See McKenna v. George, 2 benefit of that security. Bowditch v. Rich. Eq. 15, where it was held, that co- Green, 3 Met. 360. The holder of col- sureties, whq are not within the jurisdic- lateral security for a debt, has no authority tion, as well as insolvent co-sureties, are to to transfer that security after the debt is be excluded in the calculation of the pro- paid ; payment of the debt by whomsoever portion to be contributed by those against made, discharges such security. lb. See whom payment can be enforced. So in New York State Bank u. Fletcher, 5 New Hampshire. Boardman o. Paige, 11 Wend. 85; Clason o. Morris, 10 John. N. H. 431. The equitable rule, stated in 524 ; Beardsley v. Warner, 6 Wend. 610.] the text, has been allowed to operate at (r) Davies v. Humphreys, 6 M. & W. law in some of the states. Mills v. Hyde, 153, 167. 19 Vt. 59; Henderson v. McDuffee, 5 N. (s) Batard v. Hawes, 2 E. & B. 287, H. 38. See Jones v. Blanton, 6 Ired. Eq. 295 ; Kemp v. Finden, 12 M. & W. 421 ; 115 ; Aiken v. Peay, 5 Strobh. 15.] Brown v. Lee, 6 B. & C. 697 ; [Shaw C. (u) Batard v. Hawes, 2 E. & B. 287, J. in Chaffee u. Jones, 19 Pick. 264, 268. 298; [Bachelder v. Fisk, 17 Mass. 264; On the question of contribution between Sibley v. McAllaster, 8 N. H. 389. But co-sureties, partners who signed in the see Waters v. Riley, 2 H. & Gill, 305.] partnership name are to be regarded as 788 SUBJECT-MATTEK OF CONTRACTS. passing of the act : (y~) — that " every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judg- ment, specialty, or other security which shall be held by the cred- itor in respect of such debt or duty, whether such judgment, spe- cialty, or other security shall or shall not be deemed at law, to have been satisfied by the payment of the debt or performance of the duty ; and such person shall be entitled to stand in the place of the cred- itor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained, by the person who shall have so paid such debt or performed such duty ; and such payment or performance so made by such surety, shall not be pleadable in bar of any such action or other proceeding by him : provided always, that no co-surety, co-contractor, or co-debtor, shall be entitled to recover from any other co-surety, co-contractor, or co- debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned persons shall be justly liable." And since this statute, it has been held, that where A., who was jointly liable with several others on a judgment, was taken under a ca. sa., and paid the entire debt, he was entitled to an assignment of the judgment; and that, in an action by A. for not assigning such judgment, a plea that the judgment had been satisfied by pay- ment by A., after he had been taken in execution thereunder, was no answer, (ui) It has also been held, that the only way in which a party can avail himself of the above enactment is by action, and not by motion to the court. (x~) (v) De Wolf v. Lindsell, L. R. 5 Eq. (*) Phillips v. Dickson, 8 C. B. N. S. 209. 391. [But see Bracket* v. Winslow, IT (w) Batchelor u. Lawrence, 9 C. B. N. Mass. 153.] S. 543.